In re Asbestos (N.D. Cal., Mar. 31, 2021, order 2)

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, alleging that Thomas H. Toy, Sr. developed malignant mesothelioma and died from exposure to asbestos-containing products. The case was removed from Alameda Superior Court to federal court. Two defendants, Warren Pumps and Armstrong International, asked the court to exclude plaintiffs' expert, retired Navy Captain Francis Burger. Burger had offered opinions that Mr. Toy worked on or around Warren pumps and Armstrong steam traps, including their gaskets and packing, on Navy ships. Mr. Toy had testified that he did not work on internal parts of Warren pumps, and Burger admitted he had no information that Armstrong products were on Mr. Toy's ships. The court found such testimony speculative under Rule 702. It also found plaintiffs had not shown Burger was qualified on land-based steam traps, which Mr. Toy worked on at Treasure Island Naval Station. The court granted both motions. Burger may not testify about specific manufacturers' products or about land-based steam traps.

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 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.

What the court held. Under Rule 702, an expert's testimony must rest on sufficient facts or data, so an expert with no knowledge of the specific products a plaintiff worked with, beyond the plaintiff's own deposition, cannot testify about them, and the plaintiffs bear the burden of showing the expert is qualified on a subject.

Issues decided: Expert Testimony, Maritime Law and Navy Ships, Product Identification.

The people and their exposure

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

The defendants

• Warren Pumps, LLC (manufacturer)
• Armstrong International, Inc. (manufacturer)

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 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.
• 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 GRANTING MOTIONS TO EXCLUDE TESTIMONY OF CAPTAIN

FRANCIS BURGER

HAYWOOD S. GILLIAM, JR., District Judge.

Re: Dkt. Nos. 440, 451

Pending before the Court are the motions to exclude the testimony of Captain Francis Burger, Ret., filed by Defendants Warren Pumps, LLC and Armstrong International, Inc. Dkt. Nos. 440, 451. The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court GRANTS 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"). As relevant to these motions, Plaintiffs allege that Mr. Toy was exposed to asbestos from pumps supplied by Defendant Warren and steam traps and strainers supplied by Defendant Armstrong. See id. at ¶¶ 5-6. Plaintiffs served an expert report from Captain Burger, who offers opinions regarding exposure to asbestos-containing materials aboard Navy ships and in shipyards. See Dkt. No. 451-1, Ex. C ("Burger Report"). Captain Burger is a former Naval Engineering officer and Project Manager in Marine Engineering. See id. at 1. He also served in the United States Navy as a Line Officer and an engineer aboard Navy vessels between 1956 and 1964, and in the United States Naval Reserve as an Engineering Duty Officer from 1954 to 1985. Id. Captain Burger states that because of his work history and military service, he has "obtained extensive experience evaluating and considering the potential for exposure to asbestos encountered by naval personnel and shipyard workers in connection with work with a variety of equipment and products used in marine engineering spaces and settings, including aboard United States Navy ships." See id. at 2. Based on this experience, Captain Burger offers opinions regarding product design and military specifications on board naval vessels. See id. at 3-7. He also offers opinions regarding Mr. Toy's "potential for, as well as actual exposure to asbestos through his work aboard Naval Vessels." Id. at 8. Captain Burger opines that Mr. Toy worked on and around various types of equipment, including products manufactured by Defendants Warren and Armstrong. See Burger Report at 9. Captain Burger asserts that Mr. Toy's work included "work with gaskets associated with Armstrong International steam traps" and "packing and/or gaskets associated with Warren Pumps. . . ." See id. Defendants now challenge Captain Burger's report and anticipated testimony to the extent he opines that Mr. Toy worked on or around any Warren or Armstrong products while aboard any Navy vessel. See Dkt. Nos. 440, 451. 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

Defendants contend that Captain Burger should not be allowed to offer any opinion regarding the products to which Mr. Toy would have been exposed or with which he would have worked while aboard any Navy vessel. See Dkt. Nos. 440, 451. More specifically, Defendant Warren points out that Mr. Toy admitted during his deposition testimony that he did not work on any internal components of Warren pumps. See Dkt. No. 440 (citing Dkt. No. 440-4, Ex. C at 42:16-43:7 and Dkt. No. 440-5, Ex. D at 450:15-22). Defendant Armstrong similarly contends that there is no evidence that Mr. Toy worked on any Armstrong steam trap while aboard a military ship or vessel. See Dkt. No. 451 at 6-7. And although Mr. Toy testified that he removed and replaced Armstrong steam traps while working inside buildings at Treasure Island Naval Station, Dkt. No. 451-1, Ex. A at 744:18-19, 745:20-22, 746:15-747:2, Defendant Armstrong argues that Captain Burger concedes that he does not have any expertise in land-based steam systems, Dkt. No. 451 at 7-8. Captain Burger's expert report, however, opines that Mr. Toy's job duties while aboard naval ships would require him to work on and around Warren Pumps and Armstrong steam traps. See Burger Report at 9, 11. These opinions, Defendants urge, are directly contradicted by Mr. Toy's own deposition testimony, and not otherwise supported by any evidence.

In response, Plaintiffs urge that both motions should both be denied as "moot and unnecessary" because they do not intend to use Captain Burger to offer such testimony. See Dkt. No. 490 at 2-3. Plaintiffs do not, however, entirely disavow the possibility that Captain Burger will offer some testimony regarding Mr. Toy's possible exposure to Defendants' products. Federal Rule of Evidence 702 requires that an expert's testimony be "based on sufficient facts or data." Fed. R. Civ. P. 702(b). There is no evidence in the record before the Court or in Captain Burger's expert report to suggest that Captain Burger worked with Mr. Toy or otherwise has knowledge about the specific products with which Mr. Toy worked, outside of what is described in Mr. Toy's own deposition testimony. Captain Burger even acknowledged during his deposition that he did not have any information that Armstrong products were on any of the ships that Mr. Toy worked on. See Dkt. No. 451-1, Ex. D at 151:12-152:1, 157:11-158:7. The Court thus concludes that such testimony would be speculative. Accord MacQueen v. Warren Pumps LLC, 246 F. Supp. 3d 1004, 1015-18 (D. Del. 2017); Yaw v. Air & Liquid Sys. Corp., No. C18-5405 BHS, 2019 WL 3891792, at [*3] (W.D. Wash. Aug. 19, 2019). Captain Burger therefore may not testify that Mr. Toy worked on or around any specific manufacturer or supplier's products.

In response to Defendants' motions, Plaintiffs suggest that Captain Burger is nevertheless qualified and will testify regarding "typical work practices involving steam traps," including "the process for removal and replacement of asbestos-containing gaskets." Dkt. No. 490 at 3. Plaintiffs suggest—without providing any support for the contention—that there is no difference in shipboard versus land-based steam traps. Id. However, Captain Burger acknowledged during his deposition that he is "not an expert on land-based steam systems," Dkt. No. 451-1, Ex. D at 161:15-21, and his report does not address land-based steam systems. See generally Burger Report. When asked whether the process for installing a steam trap in a building on Treasure Island may differ from installation aboard a ship, Captain Burger stated, "I don't know that to be a fact." Dkt. No. 451-1, Ex. D at 160:22-161:14. Plaintiffs offer no support for their conclusion that Captain Burger is nonetheless

qualified to offer testimony regarding land-based steam traps. Plaintiffs bear the burden of establishing that their expert is qualified, and have failed to do so here. See Lust By & Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

IV. CONCLUSION

Accordingly, the Court GRANTS the motions to exclude. Dkt. Nos. 440, 451. Captain Burger may not testify that Mr. Toy worked on or around specific manufacturers' or suppliers' products—including Warren pumps or Armstrong steam traps. Nor may he offer testimony regarding land-based steam traps.

IT IS SO ORDERED.

Sources

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