McALVEY v. Atlas Copco Compressors, LLC (S.D. Ill., Aug. 28, 2015)

Our plain-English summary of McALVEY v. Atlas Copco Compressors, LLC (U.S. District Court, Southern District of Illinois, August 28, 2015).

Gerald McAlvey sued Atlas Copco Compressors and other companies in federal court in southern Illinois over asbestos exposure. The opinion refers to his asbestosis. He served in the U.S. Navy from 1954 to 1958 aboard the USS Bremerton, USS Roosevelt and USS Intrepid. He retained Jerome Spear to testify that his exposure there probably exceeded historical and current occupational standards. Spear compared the exposures of pipefitters, who like Navy ship workers handled asbestos insulation, packing and gaskets. Several defendants asked the court to exclude or limit Spear's testimony. They argued it relied on an unreliable "every exposure" theory and would not help the jury. The court denied the motions. It found his testimony would help the jury and rested on a reliable, accepted method. His inability to give a dose or name a manufacturer affected credibility, not admissibility. The court did not decide whether an expert may say every exposure is a substantial cause. Spear did not offer that opinion and would not say any one defendant's product was a substantial factor.

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, Southern District of Illinois
• Decided: August 28, 2015
• Docket: Case No. 14-CV-64-SMY-SCW
• Stage: Discovery or evidence ruling
• State: Illinois

Outcome. The district court denied the defendants' motions in limine to exclude or limit plaintiff Gerald McAlvey's exposure expert Jerome Spear, so the plaintiff prevailed on the motions.

What the court held. An exposure expert's opinion built on a worker's history, historical exposure levels for comparable trades and scientific literature is admissible under Rule 702. Inability to state the dose or the specific manufacturer goes to credibility, not admissibility.

Issues decided: Expert Testimony.

The people and their exposure

• Gerald D. McAlvey: asbestosis

The defendants

• Atlas Copco Compressors, L.L.C. (manufacturer)
• Crane Co. (manufacturer)
• Georgia-Pacific L.L.C. (manufacturer)
• Ingersoll Rand Company (manufacturer)
• Electrolux Home Products, Inc. (manufacturer)
• CBS Corporation (manufacturer)
• Honeywell International, Inc. (manufacturer)
• Buffalo Pumps, Inc. (manufacturer)
• Imo Industries, Inc. (manufacturer)
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Thacker v. Unr Industries, Inc. (Illinois Supreme Court, 1992). The Illinois Supreme Court affirmed the appellate court, which had upheld the jury verdicts for plaintiff Lois Thacker and denied the Manville Fund's request for judgment n.o.v.

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.

GERALD D. MCALVEY, Plaintiff,

v.

ATLAS COPCO COMPRESSORS, L.L.C., etal., Defendants.

Case No. 14-CV-64-SMY-SCW.

August 28, 2015.

United States District Court, S.D. Illinois.

MEMORANDUM AND ORDER

STACI M. YANDLE, District Judge.

This matter comes before the Court on Defendants' Crane Co., Georgia-Pacific L.L.C., and Ingersoll Rand Company's Motion in Limine to Limit Trial Testimony of Plaintiff's Proferred Expert Jerome Spear[1] (Doc. 309) and Defendant Electrolux Home Products, Inc.'s Motion in Limine to Limit Trial Testimony of Plaintiff's Proffered Expert Witness Jerome Spear[2] (Doc. 321). Defendants state that Jerome Spear's testimony should be excluded because his report and testimony show that he relies on the "every exposure" theory which has been rejected by several courts under Daubert. Defendants further argue that Spear's opinions are based on unreliable scientific methodology and that his testimony will not assist the jury in evaluating liability. Plaintiff's Motion for Extension of Time to File Response to the motions (Doc. 362) is GRANTED and the responses are deemed timely filed. For the following reasons, Defendants' Motions are DENIED.

Plaintiff retained Jerome Spear to provide an opinion and testimony that Plaintiff was exposed to asbestos above historical and occupational standards, increasing his risk to develop an asbestos-related disease. In his expert report, Spear concludes, "Mr. McAlvey's exposure to asbestos aboard the USS Bremerton, USS Roosevelt, and USS Intrepid while he served in the U.S. Navy from 1954 to 1958 more than likely exceeded, on a routine basis, historical and current occupational exposure standards for asbestos" (Doc. 368, Ex. A). He arrived at this conclusion after evaluating the historical asbestos exposure levels of pipefitters, who, like workers on Naval ships, were exposed to asbestos insulation, packing, and gaskets. (Doc. 368, Ex. A). Spear's conclusions are based on his review of Plaintiff's work history as summarized in his June 19, 2014, deposition, the Social Security Administration's Itemized Statement of Earnings for Plaintiff, Dr. Richard Felt's Medical Assessment Report, and his review of scientific literature pertaining to asbestos exposure (Doc. 368, Ex. A). In his deposition, Spear testified that he did not know if Plaintiff's actual exposure to asbestos while serving in the Navy fell within any of the ranges or exceeded any regulated levels of asbestos exposure identified in the occupational studies he cited in his expert report (Doc. 309, Ex. B) nor did he perform exposure reconstruction for any of the products or materials Plaintiff may have been exposed to (Doc. 309, Ex. B). He further testified:

Q: "[J]ust to summarize, your testimony here today and in your reports is that each and every time that these gentlemen or someone they worked with testified that they worked with or around asbestos-containing

packing, gaskets, and/or insulation, that that created airborne asbestos dust greater than background levels. . ."

A: That's correct. . . Any level above background would increase the risk of an asbestos-related illness" (Doc. 309, Ex. B).

The Court first concludes that Mr. Spear's "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," as required by Rule 702. The causes of mesothelioma are not readily understood by a lay person; the question of causation related to levels of asbestos exposure is a difficult one for which expert testimony is helpful for a trier of fact.

The Court also finds that Mr. Spear's opinion is the product of a reliable technique that has been generally accepted by the scientific community. He evaluated the historical asbestos exposure levels of pipefitters and reviewed Plaintiff's work history

as summarized in his June 19, 2014 deposition, the Social Security Administration's Itemized Statement of Earnings for Plaintiff, Dr. Richard Felt's Medical Assessment Report, and scientific literature pertaining to asbestos exposure (Doc. 368, Ex. A). This is sufficient for him to provide testimony regarding the subject matter in his report and deposition. Defendants point out that Mr. Spear cannot identify the dose of asbestos or particular manufacturer of asbestos-containing products to which Plaintiff was exposed. However, in cases of occupational or environmental exposure, "it is usually difficult, if not impossible, to quantify the amount of exposure." Bombardiere v. Schlumberger Tech. Corp., 934 F.Supp.2d 843, (N.D.W.Va. 2013) (quoting FEDERAL JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 187

(1994)). These issues are relevant to the credibility of the witness's testimony, not to the admissibility. Defendants also argue that Mr. Spear's testimony is a variant of the argument, discredited in some jurisdictions, that "each and every exposure" to asbestos is a substantial factor causing asbestosis and that this testimony has been rejected by numerous federal and state courts as unscientific and unsubstantiated by evidence.

This court need not decide whether an expert may offer testimony that each and every exposure to asbestos is a significant cause of asbestosis because that is not the subject matter of Mr. Spear' opinions. Spear's opinions and testimony are limited to the frequency, regularity and proximity of Plaintiff's exposure to asbestos products in general and his conclusion that Plaintiff experienced a significant exposure to asbestos based on his work activities.

Finally, Defendants argue that Mr. Spear's testimony does not meet Illinois' standard to prove causation under the "substantial factor test." See Thacker v. UNR Indus., Inc., 603 N.E.2d 449, 455 (Ill.1992). Again, the Court need not address this issue as Mr. Spear will not be offering opinions as to whether any one of Defendants' products was a substantial factor in causing Plaintiff's asbestosis (Doc. 366, p.2).

IT IS SO ORDERED.

[1] This Motion was joined by CBS Corporation (Doc. 331), Honeywell International, Inc. (Doc. 345), Buffalo Pumps, Inc. and Imo Industries, Inc. (Doc. 346), and Owens-Illinois, Inc. (Doc. 347).

[2] This Motion was joined by Honeywell International, Inc. (Doc. 345), Buffalo Pumps, Inc. and Imo Industries, Inc. (Doc. 346), and Owens-Illinois, Inc. (Doc. 347).

Sources

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