In re Asbestos (N.D. Cal., Mar. 31, 2021, order 1)

Our plain-English summary of In re Asbestos (U.S. District Court, Northern District of California, March 31, 2021).

Agnes Toy and Thomas Toy, Jr. sued more than forty defendants in California state court. They alleged that Thomas H. Toy, Sr. developed malignant mesothelioma and died from exposure to asbestos in products the defendants made or supplied. The case was removed to federal court. Before trial, the plaintiffs moved to exclude two defense experts. Dr. Paustenbach, an industrial hygienist retained by Warren Pumps, opined that Mr. Toy's chrysotile exposure from work with Warren pumps, whose gaskets and packing contained asbestos, would not have increased his risk of disease. Dr. Roggli, a pathologist retained by Armstrong and Ingersoll-Rand, opined that Mr. Toy had lung cancer rather than mesothelioma and that he could not tie it to asbestos. The plaintiffs argued these opinions were inconsistent and lacked foundation. The court denied both motions. It found that the plaintiffs were arguing the merits and could cross-examine the experts and present contrary evidence. The court also noted that Ingersoll-Rand's bankruptcy stayed the claims against it.

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, Northern District of California
• Decided: March 31, 2021
• Docket: Case No. 19-cv-00325-HSG
• Stage: Discovery or evidence ruling
• State: California

Outcome. The federal district court denied the plaintiffs' motions to exclude the testimony of defense experts Dr. Paustenbach and Dr. Roggli, so the defendants won the ruling.

What the court held. Expert testimony is admissible under Rule 702 if the expert is qualified and the testimony is relevant and reliable. Disagreement with an expert's studies, assumptions or conclusions goes to the merits and is addressed through cross-examination and contrary evidence, not exclusion.

Issues decided: Expert Testimony.

The people and their exposure

• Thomas H. Toy, Sr.: mesothelioma; died

Who	Work	Where	When	Products
Thomas H. Toy, Sr.	shipyard worker (shipyards and maritime work)
Thomas H. Toy, Sr.	worker with Warren pumps			chrysotile, gaskets and packing, Warren pumps

The defendants

• Warren Pumps, LLC (manufacturer)
• Armstrong International, Inc.
• Ingersoll-Rand Company

Other decisions in this case

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

• Toy v. Honeywell International Inc. (April 29, 2019). The court granted NAPA's motion to dismiss for lack of personal jurisdiction and terminated NAPA from the case, ruling against plaintiffs Thomas and Agnes Toy as to NAPA.
• Toy v. Viking Pump (In re Toy Asbestos Litigation) (May 16, 2019). The district court denied, without prejudice to renewal after discovery, Viking Pump's motion to dismiss for lack of personal jurisdiction, finding the Toys made a prima facie case of specific jurisdiction.
• Toy v. Honeywell Int'l (In re Toy Asbestos Litigation) (May 27, 2020). The court granted in part and denied in part Honeywell's motion to modify the scheduling order: Honeywell could not supplement its expert Dr. Vachani's report, but Plaintiffs could depose him after the deadline.
• Toy v. Armstrong Int'l (In re Asbestos) (March 19, 2021). The court granted in part and denied in part the defendants' motion to strike plaintiffs' expert Dr. Staggs: it kept only two pages of his rebuttal report and barred him from testifying in the plaintiffs' case-in-chief, but refused to strike the report as untimely.
• Toy v. Armstrong Int'l (In re Asbestos) (March 23, 2021). The court granted the Toy plaintiffs' motion to strike defense expert Dr. Gail Stockman's testimony on asbestos state of the art and on asbestos exposure and risk from steam traps, a ruling against defendant Armstrong International.
• Toy v. Honeywell Int'l (In re Asbestos) (March 26, 2021). The district court denied Honeywell's motion to exclude plaintiffs' causation expert Dr. Carl Brodkin, so the Toy plaintiffs won the ruling, and it terminated as moot the parallel motions by Ingersoll-Rand, Morse TEC and Metalclad.
• Toy v. Armstrong Int'l (In re Asbestos) (March 30, 2021). The court granted in part and denied in part Armstrong's motion to exclude plaintiffs' expert Dr. Brody (he may give general but not specific causation testimony) and denied Warren Pumps' and Honeywell's motion to exclude "every exposure" testimony, without prejudice to renewed objections at trial.
• Toy v. Warren Pumps (In re Asbestos) (March 31, 2021). The court granted Warren Pumps' and Armstrong International's motions to exclude plaintiffs' expert Captain Burger from testifying that Mr. Toy worked on or around those companies' products or about land-based steam traps.
• Toy v. Warren Pumps (In re Asbestos) (May 13, 2021). The district court denied Warren Pumps, LLC's motion for summary judgment, finding genuine factual disputes on exposure to asbestos from its pumps and gaskets and on substantial-factor causation, so plaintiffs Agnes Toy and Thomas Toy, Jr. prevailed on the motion.
• Toy v. Armstrong Int'l (In re Toy Asbestos) (May 20, 2021). The district court granted Armstrong International's motion for summary judgment on all claims by Agnes Toy and Thomas Toy, Jr., and directed entry of judgment for Armstrong.

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.

IN RE TOY ASBESTOS.

Case No. 19-cv-00325-HSG.

March 31, 2021.

United States District Court, N.D. California.

ORDER DENYING PLAINTIFFS' MOTIONS TO EXCLUDE THE TESTIMONY OF

DRS. DENNIS J. PAUSTENBACH AND VICTOR ROGGLI

HAYWOOD S. GILLIAM, JR., District Judge.

Re: Dkt. Nos. 444, 449

Pending before the Court are Plaintiffs Agnes Toy and Thomas Toy, Jr.'s motions to exclude the anticipated testimony of defense experts Drs. Dennis J. Paustenbach and Victor L. Roggli. Dkt. Nos. 444, 449. The Court finds these matters appropriate for disposition without oral argument and the matters are deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court DENIES the motions.

I. BACKGROUND

Plaintiffs Agnes Toy and Thomas Toy, Jr. initially filed this action in Alameda Superior Court against over forty Defendants, alleging that Thomas H. Toy, Sr. developed malignant mesothelioma and later died from exposure to asbestos-containing products or equipment that Defendants either manufactured or supplied. See Dkt. No. 1-1. Defendants removed this action to federal court, Dkt. No. 1, and Plaintiffs filed a second amended complaint on July 22, 2019, Dkt. No. 247 ("SAC"). A. Motion to Exclude Dr. Paustenbach

Defendant Warren Pumps, LLC designated Dr. Paustenbach as an industrial hygienist and toxicologist to offer opinions regarding the risk of mesothelioma and the magnitude of Mr. Toy's exposure to asbestos from work associated with Warren products. See Dkt. No. 444-3, Ex. 2 ("Paustenbach Report"). Dr. Paustenbach has approximately 25 years of experience in occupational health, risk assessment, toxicology, and environmental engineering. See id. at 2. As part of his expert report, Dr. Paustenbach provides background information about pumps and asbestos contained in their gaskets and packing, and the risks posed by different types of asbestos. See id. at 13-14, 17-26. Additionally, he offers opinions that (1) low airborne levels of asbestos—such as those occurring in the ambient background in buildings and urban areas—are not associated with an increased risk of asbestos-related disease; and (2) Mr. Toy's exposure to chrysotile asbestos fibers from working with Warren pumps would not have increased his risk of asbestos-related disease. See id. at 17, 27-29. Plaintiffs challenge Dr. Paustenbach's opinions regarding Mr. Toy's risk as inconsistent and lacking proper foundation. See generally Dkt. No. 444.

B. Motion to Exclude Dr. Roggli

Defendants Armstrong International, Inc. and Ingersoll-Rand Company designated Dr. Roggli as a pathology expert. See Dkt. No. 449-2, Ex. 1 ("Roggli Report"). As relevant to this motion, Dr. Roggli opines that Mr. Toy had lung cancer and not mesothelioma. See id. at 2. During his deposition, he also suggested that Mr. Toy's lung cancer was caused by his history of cigarette smoking and not asbestos exposure. See Dkt. No. 449-3, Ex. 2 at 46:4-9, 46:22-47:17 (2020 Deposition). Plaintiffs contend that Dr. Roggli lacked the proper foundation to render these opinions because he did not have information about Mr. Toy's actual asbestos exposure. See Dkt. No. 449.

The Court notes that Ingersoll-Rand filed a petition for bankruptcy on June 18, 2020. See Dkt. No. 530. Under Section 362 of the Bankruptcy Code, the bankruptcy filing triggered an automatic stay of all claims against Ingersoll-Rand. Id. at 2. Plaintiffs have confirmed that due to the stay they will no longer prosecute the case against Ingersoll-Rand. See Dkt. No. 532 at 2. However, the Court continues to consider Dr. Roggli's anticipated testimony, and Plaintiffs' motion to exclude it, as it relates to Defendant Armstrong.

II. LEGAL STANDARD

Federal Rule of Evidence 702 allows a qualified expert to testify "in the form of an opinion or otherwise" where: (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.

Fed. R. Evid. 702. Expert testimony is admissible under Rule 702 if the expert is qualified and if the testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004). Rule 702 "contemplates a broad conception of expert qualifications." Hangarter, 373 F.3d at 1018 (emphasis in original).

Courts consider a purported expert's knowledge, skill, experience, training, and education in the subject matter of his asserted expertise. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000); see also Fed. R. Evid. 702. Relevance, in turn "means that the evidence will assist the trier of fact to understand or determine a fact in issue." Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) ("The requirement that the opinion testimony assist the trier of fact goes primarily to relevance.") (quotation omitted). Under the reliability requirement, the expert testimony must "ha[ve] a reliable basis in the knowledge and experience of the relevant discipline." Primiano, 598 F.3d at 565. To ensure reliability, the Court "assess[es] the [expert's] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance." Id. at 564. III. DISCUSSION

A. Motion to Exclude Dr. Paustenbach

Plaintiffs first seeks to exclude the testimony of Dr. Paustenbach as internally inconsistent. See Dkt. No. 444. Plaintiffs argue that Dr. Paustenbach attempts to draw conclusions about the risk from Defendant Warren's products by comparing Mr. Toy's work with those products to the amount of asbestos in the ambient air. Id. at 5-8. But Plaintiffs urge that the asbestos fibers in the ambient air are shorter, and therefore less hazardous, than the asbestos released from work with Warren pumps. Id. at 5-6. Plaintiffs thus conclude that Dr. Paustenbach's opinions lack foundation, and in the alternative, are likely to mislead a jury and should be excluded under Federal Rule of Evidence 403. Id. at 8-9.

The Court is not persuaded. Plaintiffs' arguments appear to rely on an oversimplification of Dr. Paustenbach's opinions. Dr. Paustenbach opines that "[l]ow airborne concentrations of asbestos, such as those associated with the ambient background environment, are not believed to pose an increased risk of asbestos-related disease." See Paustenbach Report at 17. He also distinguishes between different types of asbestos fibers, and states that their differences translate to different risks of developing asbestos-related diseases from exposure to them. See id. at 17-19. He further identifies the level of exposure to chrysotile fibers, measured in fibers per cubic centimeter per year (f/cc yr.), that has been found to cause lung cancer and mesothelioma. Id. at 17. Dr. Paustenbach then describes myriad studies that have been conducted over the years regarding workers' exposure to asbestos while handling asbestos-containing gaskets and packing. Id. at 20-26. Based on the nature of Mr. Toy's work with Warren products and his vicinity to others working on such products, Dr. Paustenbach concludes that the exposure to the chrysotile asbestos in such products would not have resulted in an increased risk of asbestos-related disease. Id. at 27-29. He notes that "exposure, potency, and duration are the key factors regarding the risks associated with asbestos," and concludes that Mr. Toy's work would "produce very low (and perhaps immeasurably low) concentrations of airborne asbestos." Id. at 28. Dr. Paustenbach does not, however, appear simply to suggest that exposure to asbestos from Defendant's products is the same as ambient air exposure.

At bottom, Plaintiffs appear to be arguing the merits of their case rather than the admissibility of Dr. Paustenbach's testimony. Certainly they may disagree with the studies on which Dr. Paustenbach relies; his interpretation of Mr. Toy's work and related asbestos exposure; and Dr. Paustenbach's ultimate conclusions. But such disagreement does not render his opinions inconsistent or without foundation. Moreover, Plaintiffs will have ample opportunity to cross-examine Dr. Paustenbach at trial and present their own contrary evidence. See Daubert, 509 U.S. at 596 ("Vigorous 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."). The jury—and not the Court—ultimately will have to decide how persuasive it finds Dr. Paustenbach's testimony to be.

The Court similarly rejects Plaintiffs' conclusory argument that Dr. Paustenbach's testimony should be excluded under Rule 403. See Dkt. No. 444 at 8-9. The Court understands that the issues underlying liability in this action are complex. However, that is not limited to Dr. Paustenbach's anticipated testimony. The Court finds no basis on the record before it to exclude Dr. Paustenbach's testimony as too complex for the jury to comprehend.

B. Motion to Exclude Dr. Roggli

Plaintiffs also seek to exclude the testimony of Dr. Roggli regarding the cause of Mr. Toy's disease. Dkt. No. 449. Plaintiffs contend that Dr. Roggli had no factual basis to opine on the cause of Mr. Toy's disease because he had no information about Mr. Toy's asbestos exposure while working in shipyards. See id. at 4-5. During his deposition, Dr. Roggli suggested that he did not think Mr. Toy's lung cancer was caused by asbestos exposure. See Dkt. No. 449-3, Ex. 2 at 53:15-54:13. He noted, for example, the high level of asbestos exposure needed for an increased risk in lung cancer. Id. Dr. Roggli explained that the scientific literature indicates that the level of asbestos exposure needed to significantly increase risk of lung cancer is approximately 25 f/cc. See id. Plaintiffs contend that Dr. Roggli did not review any of Mr. Toy's deposition testimony, and therefore did not know how much asbestos Mr. Toy was ever exposed to as a shipyard worker, let alone whether such exposure reached 25 f/cc yr. See Dkt. No. 449 at 2-5.

Dr. Roggli's written report does not proffer an opinion about the cause of Mr. Toy's disease. Rather, after looking at three cell specimens, Dr. Roggli concludes that Mr. Toy had a poorly differentiated carcinoma. See Roggli Report at 1-2. But because of the limitations in the pathology materials available to Dr. Roggli, he states that he cannot not speak to the presence or absence of asbestos bodies or asbestosis. Id. at 2. He thus concludes that "from the perspective of a pathologic study, I am unable to relate Mr. Toy's squamous cell carcinoma of the left lung to any prior history of asbestos exposure." See id. Plaintiffs do not appear to argue that these opinions should be excluded. Instead, they point to Dr. Roggli's deposition in which, in answer to a question from Plaintiffs' counsel, he confirmed that he does not believe Mr. Toy's lung cancer was related to asbestos exposure. See Dkt. No. 449-3, Ex. 2 at 46:22-25.

However, Plaintiffs appear to abbreviate Dr. Roggli's reasoning. Dr. Roggli explained that in order for him, as a pathologist, to assess that Mr. Toy's lung cancer was caused by asbestos exposure, Mr. Toy would have to "have asbestos clinically or pathologically or a fiber burden within the range of asbestosis." See id. at 59:5-8. As explained in his report, Dr. Roggli did not have evidence of either. See generally Roggli Report. Absent such evidence, Dr. Roggli further explained that he would need evidence that Mr. Toy was exposed to at least 25 f/cc yr. of asbestos. See Dkt. No. 449-3, Ex. 2 at 59:8-14. He noted that this is a high level, and that he has "not seen any industrial hygienist indicating that was more likely than not achieved" in this case. Id. When asked whether it would be possible for a shipyard worker to be exposed to 25 f/cc yr. of asbestos, Dr. Roggli stated that "it probably could be," but he "would defer to an industrial hygienist on that because there's so many different factors that go into it." See id. at 54:3-13. He also said that he does not know "for sure" whether Mr. Toy had 25 f/cc yr. of asbestos exposure. See id. at 59:2-4.

Plaintiffs point out that Dr. Roggli did not review Mr. Toy's deposition and was not "sure" about Mr. Toy's exact level of asbestos exposure. See Dkt. No. 449 at 2-5; see also Dkt. No. 449-3, Ex. 2 at 34:11-16. But Dr. Roggli is not offered to estimate Mr. Toy's exposure levels or to reconstruct his occupational and environmental history. Nor does Defendant suggest that Dr. Roggli is somehow qualified to determine whether Mr. Toy's asbestos exposure reached this 25 f/cc yr. level. See Dkt. No. 488 at 1, 5. Rather, Dr. Roggli reviewed pathology materials, medical records, and the reports from other experts in this case. See Dkt. No. 449-3, Ex. 2 at 12:19-21, 32:9-34:10. He then concluded on the record before him that he had not seen evidence of such high exposure. Plaintiffs have not explained why such conclusions are improper or lack adequate foundation. Plaintiffs may of course cross examine Dr. Roggli about his opinions and the assumptions underlying them, including Mr. Toy's asbestos exposure. Moreover, to the extent Dr. Roggli attempts to offer opinions about Mr. Toy's

level of asbestos exposure (contrary to his report and deposition testimony), Plaintiffs may object to such specific testimony at trial.

IV. CONCLUSION

Accordingly, the Court DENIES the motions.

IT IS SO ORDERED.

Sources

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