Dugger v. Union Carbide Corporation (D. Md., Sept. 30, 2019, evidence ruling, order 2)

Our plain-English summary of Dugger v. Union Carbide Corporation (U.S. District Court, District of Maryland, September 30, 2019).

John Dugger, Jr., for himself and as personal representative of the estate of John Dugger, Sr., sued Honeywell International, successor to Bendix, along with other family members. They claimed Mr. Dugger developed pleural mesothelioma, which caused his death, from exposure to asbestos in Bendix brakes. The court also noted his earlier asbestos exposure in the Navy. Before trial, Honeywell asked the federal court in Maryland to exclude the plaintiffs' medical experts, Dr. Arthur Frank, Dr. John Maddox and Dr. Murray Finkelstein, under Rule 702 and Daubert. Honeywell argued they relied on an 'each and every exposure' theory and had not shown that chrysotile in brake dust causes mesothelioma. The court agreed that the 'each and every exposure' theory alone is inadmissible. It found that Drs. Frank and Maddox had instead considered the frequency, regularity and proximity of Mr. Dugger's exposure and relied on relevant studies. Dr. Finkelstein would only discuss studies on brake repair. Honeywell's remaining objections, including about brake dust and the epidemiology, went to weight and could be raised on cross-examination. The court denied the motion except for the 'each and every exposure' theory.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Maryland
• Decided: September 30, 2019
• Docket: Civil Action No. CCB-16-3912
• Stage: Discovery or evidence ruling
• State: Maryland

Outcome. The district court granted in part and denied in part Honeywell's Daubert motion: plaintiffs' experts Dr. Frank, Dr. Maddox and Dr. Finkelstein may testify, but may not rely on the 'each and every exposure' theory.

What the court held. Expert opinion resting only on the 'each and every exposure' theory is inadmissible under Daubert. Opinions that consider the frequency, regularity and proximity of the plaintiff's specific exposure and rest on reliable studies are admissible, and challenges to the underlying studies go to weight.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• John C. Dugger, Sr.: pleural mesothelioma; died

Who	Work	Where	When	Products
John C. Dugger, Sr.	work with automobile brakes (auto mechanics and brake work)			brakes, clutches and friction materials, chrysotile, Bendix brakes
John C. Dugger, Sr.	Navy service (the Navy); military service

The defendants

• Honeywell International Inc., successor-in-interest to Bendix Corporation (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Dugger v. Union Carbide Corporation (September 30, 2019). The court denied Honeywell's motion for summary judgment, finding a genuine factual dispute over whether Bendix brake boxes carried asbestos warnings, so the plaintiffs' claims against Honeywell proceed.
• Dugger v. Union Carbide Corporation (September 30, 2019). The court denied the plaintiffs' motions in limine to exclude supplemental reports by Honeywell's experts Crapo, Watson and Chirieac, finding the late disclosure harmless, but ordered Honeywell to pay reasonable costs of deposing the experts on the new material.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Dixon v. Ford Motor Company (Maryland Court of Appeals, 2013). The Court of Appeals of Maryland reversed the intermediate appellate court, reinstated the jury verdicts for the Dixon plaintiffs against Ford Motor Company, and reversed the trial court's judgment for Ford on its cross-claim against Georgia-Pacific, which won back the jury's verdict.
• Scapa Dryer Fabrics, Inc. v. Saville (Maryland Court of Appeals, 2011). The Court of Appeals affirmed the judgment for Mr. Saville against Scapa on causation, the cross-claim JNOV and the effect of his admissions, but reversed on bankruptcy trust offsets and remanded for discovery of the trust settlement agreements so the verdict could be reduced.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Rockman v. Union Carbide Corp. (U.S. District Court, District of Maryland, 2017). The court excluded the plaintiffs' experts' specific causation and "each and every exposure" opinions and granted summary judgment to Union Carbide and Georgia-Pacific on the Rockmans' remaining strict liability, negligence and loss of consortium claims.
• Waite v. Aii Acquisition Corp. (U.S. District Court, Southern District of Florida, 2016). The court denied Ford's motion for summary judgment and its motion to exclude Plaintiffs' causation experts and historian, denied Plaintiffs' motion to exclude Ford's experts (while barring untimely expert analysis), and denied Plaintiffs' motion to reconsider the dismissal of Union Carbide for lack of personal jurisdiction.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JOHN DUGGER, JR., etal.,

v.

UNION CARBIDE CORPORATION, etal.

Civil Action No. CCB-16-3912.

September 30, 2019.

United States District Court, D. Maryland.

John Dugger, Jr., Personal Representative of the Estate of John C. Dugger, Sr., Plaintiff, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, Gary J. Ignatowski, Law Offices of Peter G Angelos, James Edward Garland, Law Offices of Peter Angelos, P.C. & James Steven Zavakos, Law Offices of Peter G Angelos.

John Dugger, Jr., Surviving Son of John C. Dugger, Sr., Plaintiff, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, Gary J. Ignatowski, Law Offices of Peter G Angelos & James Edward Garland, Law Offices of Peter Angelos, P.C. Dana Buzgierski, Surviving Daughter of John C. Dugger, Sr., Rana Sanchez, Surviving Daughter of John C. Dugger, Sr., Matthew Dugger, Surviving Son of John C. Dugger, Sr., Julia Dugger, Surviving Daughter of John C. Dugger, Sr., To The Use of Sandra Dugger, Spouse of John C. Dugger, Sr., Now Deceased C/O John Dugger, Jr. & To The Use of Sandra Dugger, Spouse of John C. Dugger, Sr., Now Deceased C/O Melody Natishin, Plaintiffs, represented by Andrew M. Cantor, Law Offices of Peter G Angelos, David L. Palmer, Law Offices of Peter G Angelos PC, Gary J. Ignatowski, Law Offices of Peter G Angelos & James Edward Garland, Law Offices of Peter Angelos, P.C.

General Electric Company, Defendant, represented by David J. Quigg, DeHay & Elliston LLP.

Foster Wheeler LLC, Defendant, represented by Patrick C. Smith, Dehay and Elliston LLP.

Georgia-Pacific, LLC, Individually and as Successor in interest to Bestwall Gypsum Co., Defendant, represented by Robin Silver, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC & Joshua Franklin Kahn, Miles & Stockbridge P.C.

Greene, Tweed & Co., Individually and as Successor in Interest to Palmetto, Inc., Defendant, represented by Brendan Henderson Fitzpatrick, Goldberg Segalla LLP, Scott J. McDowell, Goldberg Segalla LLP & Thomas Peter Bernier, Goldberg Segalla.

Honeywell International Inc., formerly known as Allied Signal Inc. formerly known as Bendix Corporation, Defendant, represented by Michael K. Atkins, Baker O'Kane Atkins and Thompson PLLP, pro hac vice, Alicia N. Ritchie, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & Matthew Thomas Wagman, Miles & Stockbridge PC. Ford Motor Company, Inc., Defendant, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. The Gorman-Rupp Company, Individually and as Successor-in-Interest to Patterson Pump Co. and C.H. Wheeler Manufacturing, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC.

Goulds Pumps (IPG), Inc., c/o President, Defendant, represented by Steven Andrew Luxton, Morgan Lewis and Bockius LLP.

I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc. formerly known as De Laval, Inc. formerly known as IMP Delaval, Inc., Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Joel D. Newport, Moore and Jackson LLC, Meggie Hogan, Swanson Martin and Bell, pro hac vice, Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice & Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice. Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, Defendant, represented by F. Ford Loker, Jr., Miles and Stockbridge PC, Jermaine Derville Haughton, Nelson Mullins Riley & Scarborough & Michael L. Haslup, Miles and Stockbridge PC.

Warren Pumps, Inc., Defendant, represented by Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP, Meggie Hogan, Swanson Martin and Bell, pro hac vice & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP. Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co., Cooper Industries, Inc., Individually and as Successor in Interest to Crouse Hinds Co., Foster Wheeler LLC, FMC Corporation, Individually and as Successor in Interest to Peerless Pumps, Northern Pumps and Stearns Electric Co., Pfizer, Inc., Pneumo Abex Corporation, Individually and as Successor in Interest to Abex Corporation and American Brake Shoe Co. & The William Powell Company, Cross Defendants, represented by Patrick C. Smith, Dehay and Elliston LLP. Burnham, LLC, Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

Dana Companies, LLC, Individually and as Successor in Interest to Victor Manufacturing and Gasket Co., Warner Electric Brake and Clutch Co. and Echlin, Inc., Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

General Electric Company, Cross Defendant, represented by David J. Quigg, DeHay & Elliston LLP.

Georgia-Pacific, LLC, Individually and as Successor in interest to Bestwall Gypsum Co., Cross Defendant, represented by Robin Silver, Miles and Stockbridge PC & F. Ford Loker, Jr., Miles and Stockbridge PC.

Goodrich Corporation, Cross Defendant, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.

I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc., Cross Defendant, represented by Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice, Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice, Joel D. Newport, Moore and Jackson LLC & F. Ford Loker, Jr., Miles and Stockbridge PC. Riley Power, Inc, Cross Defendant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

The Gorman-Rupp Company, Individually and as Successor-in-Interest to Patterson Pump Co. and C.H. Wheeler Manufacturing & Eaton Hydraulics, Inc., Cross Defendants, represented by F. Ford Loker, Jr., Miles and Stockbridge PC. Trane U.S. Inc., Ind./Succ. In Int. To Kewanee Boiler Mfg. Co., Westinghouse Air Brake Co. & Union Switch Signal, Cross Defendant, represented by Michael L. Haslup, Miles and Stockbridge PC, Jermaine Derville Haughton, Nelson Mullins Riley & Scarborough & F. Ford Loker, Jr., Miles and Stockbridge PC.

Warren Pumps, Inc., Cross Defendant, represented by Meggie Hogan, Swanson Martin and Bell, pro hac vice, Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP & Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP. Trane U.S. Inc., Ind./Succ. In Int. To Kewanee Boiler Mfg. Co., Westinghouse Air Brake Co. & Union Switch Signal, Cross Claimant, represented by Michael L. Haslup, Miles and Stockbridge PC.

Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co., Cooper Industries, Inc., Individually and as Successor in Interest to Crouse Hinds Co., FMC Corporation, Individually and as Successor in Interest to Peerless Pumps, Northern Pumps and Stearns Electric Co., Foster Wheeler LLC, Pfizer, Inc., Pneumo Abex Corporation, Individually and as Successor in Interest to Abex Corporation and American Brake Shoe Co. & The William Powell Company, Cross Claimants, represented by Patrick C. Smith, Dehay and Elliston LLP. Greene, Tweed & Co., Individually and as Successor in Interest to Palmetto, Inc., Cross Defendant, represented by Scott J. McDowell, Goldberg Segalla LLP & Thomas Peter Bernier, Goldberg Segalla.

Burnham, LLC, Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

Dana Companies, LLC, Individually and as Successor in Interest to Victor Manufacturing and Gasket Co., Warner Electric Brake and Clutch Co. and Echlin, Inc., Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

Honeywell International Inc., Cross Defendant, represented by Alicia N. Ritchie, Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew Thomas Wagman, Miles & Stockbridge PC, Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & F. Ford Loker, Jr., Miles and Stockbridge PC.

Goodrich Corporation, Cross Claimant, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.

Riley Power, Inc, Cross Claimant, represented by Vincent J. Palmiotto, Clyde & Co. US LLP & Patrick C. Smith, Dehay and Elliston LLP.

Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, Cross Defendant, represented by Michael L. Haslup, Miles and Stockbridge PC & F. Ford Loker, Jr., Miles and Stockbridge PC.

I.M.O. Industries, Inc., Individually and as Successor-in-Interest to De Laval Turbine, Inc. and Warren Pumps, Inc., Cross Claimant, represented by Neil MacCallum, Collins Einhorn Farrell PC, pro hac vice & Stephen Jacobites, Collins Einhorn Farrell PC, pro hac vice.

CBS Corporation, a Delaware Corporation, Cross Defendant, represented by Philip A. Kulinski, Evert Weathersby Houff, Clare Marie Maisano, Evert Weathersby Houff & F. Ford Loker, Jr., Miles and Stockbridge PC.

Ford Motor Company, Inc., Cross Defendant, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. Goulds Pumps (IPG), Inc., c/o President, Cross Defendant, represented by Steven Andrew Luxton, Morgan Lewis and Bockius LLP.

Hampshire Industries, Inc., Cross Defendant, represented by David W. Allen, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP.

Holman Enterprises, Inc. & Zurn Industries, LLC, Individually and as Successor in INterest to Erie City Boilers, Cross Defendants, represented by Malcolm Sean Brisker, Goodell DeVries Leech and Dann LLP & Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP.

International Paper Company, Individually and as Successor in Interest to Champion International Corporation and U.S. Plywood Corp., Cross Defendant, represented by Clare Marie Maisano, Evert Weathersby Houff & F. Ford Loker, Jr., Miles and Stockbridge PC.

Koppers Company, Inc. & Universal Refractories Company, Cross Defendants, represented by Joel D. Newport, Moore and Jackson LLC & F. Ford Loker, Jr., Miles and Stockbridge PC.

Koppers Company, Inc. & Universal Refractories Company, Cross Claimants, represented by Joel D. Newport, Moore and Jackson LLC.

CBS Corporation, a Delaware Corporation & International Paper Company, Individually and as Successor in Interest to Champion International Corporation and U.S. Plywood Corp., Cross Claimants, represented by Clare Marie Maisano, Evert Weathersby Houff.

Warren Pumps, Inc., Cross Claimant, represented by Meggie Hogan, Swanson Martin and Bell, pro hac vice. Ford Motor Company, Inc., ThirdParty Plaintiff, represented by Michelle Noorani, Whiteford Taylor and Preston LLP. Alfa Laval, Inc., Individually and as Successor-in-Interest to Sharples, INc., and DeLaval Separation, Inc. and DeLaval Separator Co. & Foster Wheeler LLC, ThirdParty Plaintiffs, represented by Patrick C. Smith, Dehay and Elliston LLP. Goodrich Corporation, ThirdParty Plaintiff, represented by John C. Ruff, DeHay and Elliston LLP & Patrick C. Smith, Dehay and Elliston LLP.

Honeywell International Inc., ThirdParty Plaintiff, represented by Alicia N. Ritchie, Miles and Stockbridge PC, F. Ford Loker, Jr., Miles and Stockbridge PC, Jonathan James Huber, Miles & Stockbridge P.C., Matthew R. Schroll, Nelson Mullins Riley & Scarborough, LLP & Matthew Thomas Wagman, Miles & Stockbridge PC.

Ingersoll-Rand Co., Individually and as Parent corporation and Successor-in-Interest to Terry Steam Turbines, f/k/a Terry Turbines, Blaw-Knox Co., and Cameron Pumps, ThirdParty Plaintiff, represented by Michael L. Haslup, Miles and Stockbridge PC.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Before the court is defendant Honeywell International Inc.'s ("Honeywell") Daubert motion to preclude evidence suggesting that chrysotile asbestos used in brakes causes pleural mesothelioma or that every exposure counts (ECF 891). The motion has been fully briefed and no oral argument is necessary. For the reasons set forth below, the court will grant in part and deny in part Honeywell's motion.

FACTS

This is a case brought by John Dugger, Jr., individually and as personal representative of the estate of John Dugger, as well as John Dugger's[1] spouse and surviving children (the "plaintiffs") against Honeywell, successor-in-interest to Bendix corporation, claiming that Mr. Dugger developed mesothelioma as a result of his exposure to asbestos in Bendix brakes. Honeywell challenges the expert testimony of the plaintiffs' expert witnesses, Dr. Arthur Frank, Dr. John Maddox, and Dr. Murray Finkelstein, arguing that they are not admissible under Rule 702 of the Federal Rules of Evidence. A. Dr. Arthur L. Frank

Dr. Arthur Frank is a physician, board certified in both internal medicine and occupational medicine, who has published approximately 100 publications regarding the subject of asbestos. Dr. Frank's Nov. 20, 2017 Supplement Report at 1, ECF 922-8 at 124. Dr. Frank submitted four reports in this case, dated August 30, November 20, and December 7, 2017, and February 27, 2018. ECF 922-8, at 121-129.[2] The plaintiffs have also submitted Dr. Frank's December 20, 2016 affidavit, referenced in his reports, as well as a December 10, 2013 affidavit. Dr. Frank's 2016 Affidavit, ECF 922-4 at 88-303; Dr. Frank's 2013 Affidavit, ECF 922-9 at 43-325. Additionally, Dr. Frank submitted a verification, dated September 17, 2018, in response to Honeywell's motion to preclude his testimony. Dr. Frank's Sept. 17, 2018 Verification, ECF 922-3 at 38-59. To complete his reports, Dr. Frank reviewed Mr. Dugger's "death certificate, pathology reports, radiology records, oncology reports, discharge and admission notes, pulmonary function tests, and a work history." Aug. 30 Report at 1, ECF 922-8 at 124. He concludes that Mr. Dugger's exposure from working with asbestos-containing brakes "would have been at levels above background, would have been medically significant, and would have been medically causative of the mesothelioma which caused his death." Id. at 2. In his verification, Dr. Frank states "[i]n determining the relative contribution of any exposures to asbestos above background levels, it is important to consider a number of factors" such as the level and duration of exposure, proximity to the exposure, and the nature of the product. Sept. 17, 2018 Verification at 21-22. According to Dr. Frank, he "considered all of these factors in reaching [his] opinions ... that Mr. Dugger's work with automobile brakes manufactured by Bendix was a medically significant cause of his cancer." Id. at 22. B. Dr. John C. Maddox

Dr. John Maddox is a physician in the private practice of pathology at Riverside Regional Medical Center in Newport News, Virginia, and has been a practicing pathologist for over 41 years. Dr. Maddox's Dec. 14, 2017 Report at 6, ECF 922-8 at 46. Dr. Maddox completed a December 14, 2017 report in this case, as well as surgical pathology reports dated June 7, 2017, and March 2 and August 3, 2018. ECF 922-8 at 41-117.

Dr. Maddox believes that Mr. Dugger's exposure to Bendix brakes combined with his exposure to asbestos while in the Navy was sufficient to cause his mesothelioma because the exposure was "high, prolonged, and repetitive" and studies have shown that even low exposures to asbestos can cause mesothelioma. Dr. Maddox's Dec. 14, 2017 Report at 56. Dr. Maddox relies on, e.g., the International Agency for Research on Cancer (IARC) study published in 2012, protocols outlined by Sir Austin Bradford Hill, and the Helsinki Criteria, which was developed by 19 experts as a method for attribution of

asbestos related disease. Id. at 25-27. In summary, his personal methodology asks: 1) whether the asbestos exposures are real, 2) whether they are significantly above normal background ambient air, 3) how they are known, 4) whether they are repetitive, 5) the risk or rate of mesothelioma, using a dose-response function, and 6) whether the exposures are within the reasonable latency period. Id. at 27-28.

C. Dr. Murray Finkelstein

Dr. Murray Finkelstein is a physician-epidemiologist and a former medical consultant with the Ontario Ministry of Labour. He is now retired. Finkelstein Decl. at 1, ECF 922-10 at 35. Dr. Finkelstein provides one declaration where he discusses studies on brake repair, asbestos, and mesothelioma. Id. at 4-11. He also makes an assessment of Mr. Dugger's risk exposure. Id. at 11-12. Counsel stated at Dr. Finkelstein's deposition, however, that he would be offering no plaintiff-specific causation opinions in this case. ECF 891-4 at 4.

STANDARD OF REVIEW

Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The party seeking to introduce expert testimony has the burden of establishing its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 n.10 (1993). A district court is afforded "great deference ... to admit or exclude expert testimony under Daubert." TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir. 2003) (citations and internal quotation marks omitted); see also Daubert, 509 U.S. at 594 ("The inquiry envisioned by Rule 702 is ... a flexible one...."). "In applying Daubert, a court evaluates the methodology or reasoning that the proffered scientific or technical expert uses to reach his conclusion; the court does not evaluate the conclusion itself," Schaefer, 325 F.3d at 240, although "conclusions and methodology are not entirely distinct from one another." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In essence, the court acts as gatekeeper, only admitting expert testimony where the underlying methodology satisfies a two-pronged test for (1) reliability and (2) relevance. See Daubert, 509 U.S. at 589. To be admissible, however, "the expert testimony need not be irrefutable or certainly correct." Young v. Swiney, 23 F. Supp. 3d 596, 611 (D. Md. 2014) (internal citation and quotation omitted). "In other words, the Supreme Court did not intend the gatekeeper role to supplant the adversary system or the role of the jury: [v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (internal citations and quotations omitted).

ANALYSIS

In diversity cases, causation must be shown in accordance with state substantive law. In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation, 892 F.3d 624, 646 (4th Cir. 2018). In order to show that the defendant's conduct was the legal cause of the harm, the plaintiff must show that the conduct was a "substantial factor in bringing about the harm." Dixon v. Ford Motor Co., 70 A.3d 328, 335 (Md. 2013) (internal quotations and citations omitted). " [I]n determining whether the conduct qualifies as a substantial factor, the court must consider, among other things, the nature of the product, the frequency of its use, the proximity, in distance and time, of a plaintiff to the use of the product, and the regularity of the exposure of that plaintiff to the use of the product." Id. (quoting Eagle-Picher v. Balbos, 604 A.2d 445, 460 (Md. 1992)); see also Scapa Dryer Fabrics, Inc. v. Saville, 16 A.3d 159, 163 (Md. 2011) ("the `frequency, regularity, proximity test' enunciated in Eagle-Picher v. Balbos [is] the common law evidentiary standard used for establishing substantial-factor causation in negligence cases alleging asbestos exposure" (internal citation omitted)). Maryland case law is not inconsistent with the principle that "[i]n order to carry the burden of proving a plaintiff's injury was caused by exposure to a specified substance, the plaintiff must demonstrate the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure." Westberry v. Gislaved Gummi AB, 178 F.3d 257,

263 (4th Cir. 1999) (internal quotations and citation omitted). The Fourth Circuit also explained that "while precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation." Id. at 264.

A recent case from the U.S. District Court in Washington provides a helpful primer on terminology regarding theories of exposure in asbestos cases:

First, the "every exposure" theory posits that "any exposure to asbestos fibers whatsoever, regardless of the amount of fibers or length of exposure constitutes an underlying cause of injury." A slight variation of the "every exposure" theory states that "every exposure to asbestos above a threshold level is necessarily a substantial factor in the contraction of asbestos-related diseases." Second, an outgrowth of the "every exposure" theory is the "cumulative exposure" theory. Under such a theory, the cumulative exposure to asbestos is the cause of the disease, but because each exposure, no matter how small, adds to that

cumulative exposure, each exposure becomes a substantial contributing factor, (internal citations omitted). Barabin v. Scapa Dryer Fabrics, Inc., 2018 WL 840147, at [*11] (W.D. Wash. 2018). Honeywell argues that the "each and every exposure" or "cumulative exposure" theory, upon which Honeywell says Dr. Frank and Dr. Maddox base their opinions, is neither reliable nor relevant under Daubert. Honeywell's Mem. of Law in Supp. of its Daubert Mot., ECF 891-1, at 1-2.[3] The plaintiffs, at least for the purposes of this motion, appear to agree. Pl.'s Mem. in Opp., ECF 922 at 5. Instead, they argue that Dr. Frank and Dr. Maddox's opinions are based on Mr. Dugger's specific exposure level, and not the general fact that he was exposed to chrysotile asbestos. Id. at 23-24, 25-26. Honeywell also argues that neither Dr. Frank nor Dr. Maddox have established that chrysotile asbestos present in brake dust (as opposed to chrysotile asbestos generally) causes mesothelioma, Honeywell's Mem. of Law in Supp. of its Daubert Mot. at 4-8, and have not shown that the exposure Mr. Dugger experienced from Bendix brakes is sufficient to cause mesothelioma. Honeywell's Reply, ECF 928 at 12. Standing alone, the "each and every exposure" theory is not admissible under Daubert. "Opinions based on the `cumulative exposure' or `each and every exposure' theory have been repeatedly excluded by those courts that have considered its admissibility under Rule 702 of the Federal Rules of Evidence and Daubert...." Rockman v. Union Carbide Corp., 266 F. Supp. 3d 839, 849 (D. Md. 2017); see also Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 848 (E.D.N.C. 2015) (excluding expert testimony pertaining to the "each and every exposure" theory); Barabin, 2018 WL 840147, at [*7] ("The court agrees with this overwhelming precedent that the `every exposure' theory is unreliable."). While it may be true as a matter of medical science that every exposure increases the risk of mesothelioma, that does not show causation attributable to a specific product as a matter of law.

Dr. Frank

Dr. Frank considered Mr. Dugger's exposure to Bendix brakes as well as his exposure to asbestos while in the Navy, and came to the conclusion that both exposures were "medically significant." Aug. 30 Report at 2. In his September 17, 2018 affidavit in response to Honeywell's motion, Dr. Frank determined the relative contribution of Mr. Dugger's Bendix brake exposure by considering the nature of the exposure, the level and duration of the exposure, and the nature of the product. Sept. 17, 2018 Affidavit at 22. Dr. Frank's testimony, therefore, is like the "identified exposure" testimony the Barabin court found reliable and relevant. There, the expert did not simply testify that every exposure to asbestos necessarily contributed to the total dose of asbestos causing mesothelioma, but that the activities at issue represented "a substantial part of [the plaintiff's] occupational history and likely a source of intense exposure." Barabin, 2018 WL 840147, at [*14]. As in Barabin, and consistent with Balbos, Dr. Frank has considered the frequency, regularity, and proximity of Mr. Dugger's exposure to asbestos as a result of his use of Bendix brakes in order to come to his conclusion regarding causation. While a few of Dr. Frank's statements may recall the "each and every exposure" theory, the "other parts of [his reports] that provide context to" those statements show that Dr. Frank considered the specifics of Mr. Dugger's exposure to Bendix brakes when coming to his conclusion. Dixon, 70 A.3d at 335.

This case is distinguishable from Rockman, which Honeywell cites in its motion.[4] In Rockman, the plaintiff had been exposed to asbestos as a bystander during three home repair projects that in total spanned no more than several weeks. 266 F. Supp. 3d at 842. Mr. Dugger's exposure to asbestos was, in contrast, occupational and prolonged. Further, unlike in

Rockman, Dr. Frank has determined that Mr. Dugger's occupational exposure to asbestos in Bendix brakes was significant. C.f. id. at 847 ("[N]either Dr. Abraham nor Dr. Frank has been able to quantify Mr. Rockman's exposure as `significant.'"). Additionally, the Rockman experts relied on studies involving high levels of exposure to amphibole asbestos resulting in pleural mesothelioma, when Mr. Rockman was actually exposed to low levels of chrysotile asbestos and developed peritoneal mesothelioma. Id. at 846. Here, Mr. Dugger was occupationally exposed to high levels of chrysotile asbestos and developed pleural mesothelioma. In keeping with these facts, Dr. Frank relied on studies regarding chrysotile asbestos, pleural mesothelioma, and brake repair.[5] Therefore, Dr. Frank relied on relevant studies in reaching his conclusions and his opinions will be helpful for the jury.

Honeywell also argues that Dr. Frank has not used a reliable methodology, as he has relied on regulatory statements, mixed fiber studies, and an amicus brief to come to his conclusions. Honeywell's Reply at 4-5. Dr. Frank, however, came to his conclusion using the "weight-of-the-evidence methodology" considering "all the forms of scientific evidence on causality of asbestos disease." Dr. Frank's 2016 Affidavit at 10-11. This includes the consideration of numerous studies on the relationship between chrysotile asbestos and pleural mesothelioma. See e.g. id. at 57-64 (reviewing studies of individuals who developed mesothelioma after exposure to chrysotile asbestos). Therefore, Dr. Frank has clearly come to his conclusions after consideration of scientific and reliable evidence. Further, Honeywell is free to question the reliability of certain evidence Dr. Frank relied upon in cross-examination. See Young, 23 F. Supp. 3d at 611 (the appropriate way to challenge shaky evidence is through vigorous cross-examination). Likewise, Honeywell's contentions that the epidemiological studies relied on by the plaintiffs' experts fail to take into account certain confounding factors or do not support a link between brake repair and mesothelioma, see Honeywell's Reply at 6, or that epidemiological studies show no increased risk of mesothelioma for brake mechanics, Honeywell's Mem. of Law in Supp. of its Daubert Mot. at 34, are challenges to the expert testimony that are more appropriately brought before a jury. See Young, 23 F. Supp. 3d at 611; Waite v. AII Acquisition Corp., 194 F. Supp. 3d 1298, 1313 (S.D. Fla. 2016) (one type of scientific evidence — epidemiological studies — does not properly overcome all others, especially when the plaintiff's experts "have properly considered and evaluated a variety of scientific evidence ... including epidemiological studies, animal, cellular and molecular studies, and unbiased reviewed of these materials by research agencies such as ... IARC.") (admitting Dr. Frank's testimony).

Dr. Maddox

For the same reasons, Dr. Maddox's expert testimony is also reliable and relevant under Daubert. Dr. Maddox also considered the high, prolonged, and repetitive nature of Mr. Dugger's exposure in coming to his conclusion that Mr. Dugger's exposure to Bendix brakes was a substantial contributing factor to his mesothelioma. Dec. 14, 2017 Report at 56. Therefore, as was the case for Dr. Frank, Dr. Maddox's testimony is not based on the "each and every exposure" theory. Also like Dr. Frank, Dr. Maddox has based his conclusion on reliable and relevant studies and other materials; Dr. Maddox considered "articles, chapters, books and other learned treatises regarding lung diseases caused by asbestos exposure," epidemiological and other studies, and reviews of scientific evidence by research groups such as the IARC. Id. at 24-29. Honeywell also argues that studies on chrysotile fibers generally are not applicable to the potency of chrysotile fibers in brake dust, as the plaintiffs' experts "cannot point to any scientific basis to conclude that the science pertaining to `asbestos' generally actually pertains to or applies with equal force to the fibers found in automotive brake dust" because the process to create brake pads may inactivate the chrysotile fibers. Honeywell's Mem. of Law in Supp. of its Daubert Mot. at 9, 30. As discussed previously, Dr. Frank does consider research specific to brakes. And although Dr. Maddox does not, "expert testimony need not be based upon identical case studies or epidemiological data." Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995) (internal citation omitted). Here, Dr. Maddox's consideration of studies regarding chrysotile asbestos is certainly relevant to Mr. Dugger's alleged exposure to chrysotile asbestos contained in Bendix brakes. Honeywell's argument that chrysotile in brake dust form has different properties than chrysotile asbestos generally goes to the weight of Dr. Maddox's conclusion, but not its admissibility.

Dr. Finkelstein

Dr. Finkelstein's declaration provides an overview of various studies on the relationship between brake repair work, asbestos exposure, and mesothelioma. See Dr. Finkelstein's Decl. at 1-17. Counsel confirmed at Dr. Finkelstein's deposition that he would not provide any plaintiff-specific causation opinions. ECF 891-4 at 4. Therefore, based on his declaration, it

appears he will testify regarding various studies on brake repair and asbestos. His testimony is relevant and reliable, as he focuses his testimony on studies that relate to the facts of Mr. Dugger's case. Therefore his testimony will be allowed. CONCLUSION

Accordingly, the court will deny Honeywell's Daubert motion to preclude evidence relating to Dr. Frank, Dr. Maddox, and Dr. Finkelstein, except that the plaintiffs' experts will not be allowed to rely on the "each and every exposure" theory. A separate order follows.

[1] John Dugger, Sr. will be referred to as "John Dugger."

[2] The August 30 and November 20 reports were also attached to Honeywell's motion, ECF 891-15 and 891-16. [3] References to page numbers in Honeywell's Memorandum of Law in Support of its Daubert Motion (ECF 891-1) Plaintiffs' Memorandum in Opposition (ECF 922), and Honeywell's Reply (ECF 928) are to the ECF numbers appearing at the top of the page. [4] The court believes this case also is distinguishable from Yates, 113 F. Supp. 3d 841, but to the extent it is not, respectfully disagrees. [5] Honeywell argues that the plaintiffs' experts have not shown that brake dust, as opposed to chrysotile asbestos generally, causes mesothelioma. They argue that the expert testimony "is legally insufficient to demonstrate that the substances found in brake dust can cause pleural mesothelioma." Honeywell's Mem. of Law in Supp. of its Daubert Mot. at 28. Dr. Frank, however, discussed relevant studies relating to brakes and mesothelioma in his section "Asbestos Dust in Brakes and Clutches Causes Mesothelioma" in his Sept. 17, 2018 Affidavit, at 3-12, and his identically titled section in his 2016 Affidavit, at 148-76.

Sources

• The opinion on Google Scholar
• Maryland asbestos laws
• Maryland asbestos exposure sites