Gorton v. Air & Liquid Systems Corporation (M.D. Pa., July 21, 2020)

Our plain-English summary of Gorton v. Air & Liquid Systems Corporation (U.S. District Court, Middle District of Pennsylvania, July 21, 2020).

Rhonda Gorton sued, as personal representative of her late husband Thomas Gorton's estate and in her own right, several companies including Eaton, Schneider Electric and Aurora Pump. She alleged he developed mesothelioma from occupational exposure to their asbestos-containing products. The opinion does not describe his jobs or worksites. The defendants asked the federal court in Pennsylvania to exclude the testimony of two of her medical experts, Dr. Kradin and Dr. Kipen. They argued the experts relied on an 'each and every breath' theory that Pennsylvania law rejects, and that the testimony did not fit Pennsylvania's frequency, regularity and proximity test. After a two-day hearing, the court denied the motion. It found the experts relied on a cumulative-exposure theory, not the barred theory, and that courts have found this theory reliable. It also held that disputes over whether Gorton's exposure to a given product met the frequency, regularity and proximity test went to the weight of the evidence. Defendants could raise insufficiency of that evidence at summary judgment or trial.

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, Middle District of Pennsylvania
• Decided: July 21, 2020
• Stage: Discovery or evidence ruling
• State: Pennsylvania

Outcome. The district court denied the defendants' motion (Eaton, joined by Schneider Electric and Aurora Pump) to exclude plaintiff's experts Dr. Kradin and Dr. Kipen, so plaintiff won this ruling.

What the court held. Expert testimony that each exposure above background cumulatively contributes to mesothelioma is reliable under Rule 702 and is not the barred 'each and every breath' theory under Pennsylvania law. Disputes over whether exposure met the frequency, regularity and proximity test go to weight and are for the trier of fact.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Thomas D. Gorton, II: mesothelioma; died

The defendants

• Eaton Corporation, as successor-in-interest to Cutler-Hammer (manufacturer)
• Schneider Electric USA, Inc. (manufacturer)
• Aurora Pump Company (manufacturer)
• Air & Liquid Systems Corporation As Successor-by-Merger to Buffalo Pumps (manufacturer)
• Ingersoll-Rand Corporation (manufacturer)

Other decisions in this case

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

• Gorton v. Air & Liquid Systems Corporation (February 20, 2019). The court denied Ford's and AT&T Corp.'s motions to dismiss for lack of personal jurisdiction but granted their motions for failure to state a claim, dismissing both from the amended complaint without prejudice.
• Gorton v. Air & Liquid Systems Corporation (April 1, 2020). The court granted in part and denied in part Mrs. Gorton's motion for leave to file a second amended complaint against AT&T Corp. It allowed the intentional fraudulent concealment claim, the claims based on AT&T Corp. as manufacturer and supplier of asbestos-filled pillows or bags, and the loss of consortium claim. It denied the negligence and recklessness claims against AT&T Corp. as Mr. Gorton's employer, which are barred by Ohio workers' compensation law.
• Gorton v. Air & Liquid Systems Corporation (January 7, 2022). The court granted Warren Pumps' motion to vacate the default judgment entered for Ms. Gorton, holding the judgment void because the amended complaint with a new wrongful death claim was not properly served on Warren Pumps.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rost v. Ford Motor Co. (Pennsylvania Supreme Court, 2016). The Pennsylvania Supreme Court affirmed the judgment for the Rost estates against Ford Motor Company, holding that the causation testimony was proper and that, although consolidation with two other cases was error, Ford showed no prejudice.
• Betz v. Pneumo Abex LLC (Pennsylvania Supreme Court, 2012). The Pennsylvania Supreme Court reversed the Superior Court and held that the trial judge did not abuse his discretion in excluding the plaintiff's 'any-exposure' expert opinion under Frye, which restored the basis for summary judgment for Allied Signal and Ford against the executrix; the case was remanded to consider any remaining preserved issues.
• Tragarz v. Keene Corp. (U.S. Court of Appeals, Seventh Circuit, 1992). The Seventh Circuit affirmed the $3,000,000 judgment for Grace Tragarz against Keene and Owens-Corning Fiberglas, but reversed the denial of Keene's request to file a contribution cross-claim against OCF and remanded for proceedings between the two defendants.

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.

RHONDA J. GORTON, Personal Representative for the Estate of THOMAS D. GORTON, II, and in

her own right, Plaintiff,

v.

Air & Liquid Systems Corporation As Successor-by-Merger to Buffalo Pumps, etal., Defendants.

Civ. Action No. 1:17-1110.

July 21, 2020.

United States District Court, M.D. Pennsylvania.

MEMORANDUM OPINION

JOY FLOWERS CONTI, Senior District Judge.

Decedent Thomas Gorton ("decedent"), the husband of plaintiff Rhonda J. Gorton ("plaintiff"), developed mesothelioma, allegedly due to his occupational exposure to defendants' asbestos-containing products. Plaintiff brought this lawsuit on behalf of her deceased husband's estate and in her own right. Pending before the court is the Motion to Exclude the Expert Testimony of Plaintiff's Experts Richard Kradin, M.D. and Howard M. Kipen, M.D., MPH (ECF No. 407) filed by defendant Eaton Corporation, as successor-in-interest to Cutler-Hammer ("Eaton"), and the motions filed by defendants Schneider Electric USA, Inc. (ECF No. 412) and Aurora Pump Company (ECF No. 411) to join Eaton's motion to exclude.[1] The court granted those motions to join. The court held a two-day Daubert hearing to address defendants' arguments, which began on July 2, 2020 and concluded on July 9, 2020.

Defendants argue that the expert opinions submitted by Dr. Kradin ("Kradin") and Dr. Kipen ("Kipen") are inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because plaintiff's experts did not use a reliable method and did not rely on any medical or scientific authority showing that defendants' specific products had the capacity to or did in fact cause decedent's mesothelioma. (ECF No. 408 at 7-10.) Defendants specifically argue that plaintiff's experts rely on a theory that "each and every breath" of asbestos is substantially causative of mesothelioma, and that testimony is impermissible under Pennsylvania law, which the parties agree is applicable to the claims at issue. (ECF No. 408 at 10-14.) Defendants rely on the Pennsylvania Supreme Court's decision in Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016), which held that "expert testimony based upon the notion that `each and every breath' of asbestos is substantially causative of mesothelioma will not suffice to create a jury question on the issue of substantial factor causation." Rost, 151 A.3d at 1044 (citing Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012)). Under Pennsylvania law, "to create a jury question, a plaintiff must adduce evidence that exposure to defendant's asbestos-containing product was sufficiently `frequent, regular, and proximate' to support a jury's finding that defendant's product was substantially causative of the disease." Rost, 151 A.3d at 1044 (applying the test adopted in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992)). Defendants assert that the testimony of Kradin and Kipen would be excluded under Pennsylvania's "frequency, regularity, and proximity" test, and does not satisfy either the reliability or fit requirement under Rule 702. Under Daubert, "the district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

a. Qualifications

There was no dispute about the qualifications of Dr. Kradin or Dr. Kipen.

b. Reliability

To evaluate reliability under Rule 702, the Third Circuit Court of Appeals has enumerated the following eight factors that a district court may examine: (1) whether a method consists of a testable hypothesis; (2) whether the method has been

subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. In re Paoli R.R Yard PCB Litigation (Paoli II), 35 F.3d 717, 742 n.8 (3d Cir. 1994). This list of factors is a "convenient starting point," but is "neither exhaustive nor applicable in every case." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806-07 (3d Cir. 1997). "The evidentiary requirement of reliability is lower than the merits standard of correctness." Paoli II, 35 F.3d at 744. "As long as an expert's scientific testimony rests upon `good grounds, based on what is known,' it should be tested by the adversary process— competing expert testimony and active cross-examination—rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies." United States v. Mitchell, 365 F.3d 215, 244 (3d. Cir. 2004).

With respect to defendants' reliability argument, the court concluded that the experts did not rely on the impermissible `each and every breath' theory; rather, they based their opinions on the cumulative theory of exposure, also referred to as the "each and every exposure" theory, which has been found reliable by numerous Pennsylvania and federal courts. See Rost, 151 A.3d at 1045 (holding that expert testimony was reliable because it relied on the "`irrefutable scientific fact' that every exposure cumulatively contributes to the total dose (which in turn increases the likelihood of disease)"); see also Rabovsky v. Air & Liquid Systems Corp., Civ. Action No. 10-cv-03202, 2012 WL 252919, at [*4] (E.D. Pa. Jan. 25, 2012); Anderson v. Saberhagen Holdings, Inc., Civ Action No. 10-cv-61118, 2011 WL 605801, at [*6] (E.D. Pa. Feb. 16, 2011). Dr. Kradin and Dr. Kipen did not testify that a single exposure or single breath of asbestos was a substantial cause of the decedent's mesothelioma, but that each exposure to asbestos, above background levels, cumulatively contributed to the decedent's development of the disease. As more fully set forth on the record, this court determined that the cumulative theory of exposure is reliable based upon both the experts' testimony and the weight of authority.

c. Fit

The Rule 702 requirement that testimony "will help the trier of fact to understand the evidence or to determine a fact in issue" is referred to as the "fit" requirement. Schneider, 320 F.3d at 404. Fit requires that there be a "connection between the scientific research or test result to be presented and particular disputed factual issues in the case." In re Paoli R.R. Yard PCB Litigation (Paoli II), 35 F.3d 717, 742 n.8 (3d Cir. 1994). With respect to defendants' fit argument that Pennsylvania's "frequency, regularity, and proximity" test precludes the testimony of Dr. Kradin and Dr. Kipen, the court noted that the experts reviewed, among other things, a transcript of testimony by the decedent concerning his exposure to Eaton's product, as well as other products, and an exposure summary prepared by plaintiff's counsel. Any factual dispute about whether the plaintiff could establish exposure to specific products in issue, as described in the decedent's testimony or the exposure summary, and whether that exposure, if shown, was sufficient to meet the "frequency, regularity, and proximity" test is to be decided by the trier of fact. For the reasons set forth more fully on the record at the Daubert hearing, the arguments raised by defendants go to the weight of the evidence, and defendants will be able to cross examine the experts and introduce evidence to contest the weight of their opinions. The court concluded that there is sufficient connection between the opinions of Dr. Kradin and Dr. Kipen and the disputed factual issues in this case to satisfy the Rule 702 fit requirement.

For the foregoing reasons and as more fully set forth on the record, the motion to exclude expert testimony is DENIED. This ruling is without prejudice for a defendant — in order to assert that there is no genuine dispute of material fact — to raise in a summary judgement motion or at trial an issue concerning the insufficiency of plaintiff's evidence about the frequency, regularity, and proximity of the decedent's exposure to a particular product.

An appropriate order will follow.

IT IS SO ORDERED.

[1] Defendant Ingersoll-Rand Corporation filed a similar motion to exclude expert testimony (ECF No. 409), which defendants Schneider Electric and Aurora Pump Company also moved to join (ECF Nos. 411 and 412.) As set forth on the record at the Daubert hearing held on July 2, 2020, this case has been administratively closed with respect to Ingersoll-Rand Corporation. The court denied Ingersoll-Rand Corporation's motion without prejudice and denied without prejudice the motions to join filed by Schneider Electric and Aurora Pump Company with respect to Ingersoll-Rand Corporation's motion.

Sources

• The opinion on Google Scholar
• The opinion on CourtListener
• Pennsylvania asbestos laws
• Pennsylvania asbestos exposure sites