Relyea v. Borg-Warner Corp. (2015)

Our plain-English summary of Relyea v. Borg-Warner Corp. (U.S. District Court, Southern District of New York, September 22, 2015).

Deste Relyea, as executor of the estate of Jo Ann Relyea, brought a wrongful death action against Honeywell International, successor to a maker of asbestos-containing brake pads, and other defendants. Relyea worked as a part-time bookkeeper at a gas station and auto repair shop from 1984 to 1990 and developed mesothelioma. The plaintiff says brake dust from Bendix brakes caused it. The defendants asked the court to bar testimony from plaintiff's expert, Dr. Jill Ohar, that brake dust causes mesothelioma, and any opinion resting on an "every exposure counts" theory. Ohar relied on peer-reviewed articles on brake dust and asbestos, the Helsinki Criteria, and another expert's estimates of Relyea's exposure. The court denied the motion as to her reports. It found an adequate foundation and a sufficiently reliable methodology. It said challenges to how she applied that methodology went to weight, not admissibility. It did not rule on the "every exposure counts" theory because the defendants had not shown she relied on it, but allowed them to renew the objection if she did.

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 New York
• Decided: September 22, 2015
• Docket: No. 12CV3564(dlc)
• Stage: Discovery or evidence ruling
• State: New York

Outcome. The court denied the defendants' motion in limine to exclude plaintiff's expert Dr. Ohar's causation testimony, and declined to rule on the "every exposure counts" challenge because defendants had not shown she relied on it.

What the court held. An expert's causation opinion that brake dust exposure caused mesothelioma is admissible under Rule 702 and Daubert when based on peer-reviewed literature, the Helsinki Criteria and exposure estimates; challenges to how she applies them go to weight, not admissibility.

Issues decided: Causation, Wrongful Death and Survival, Expert Testimony.

The people and their exposure

• Jo Ann Relyea: mesothelioma; died

The defendants

• Honeywell International Inc. (manufacturer)
• Borg-Warner Corp. (manufacturer)

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.

DESTE C. RELYEA, as Executor of the Estate of JO ANN RELYEA, Plaintiff,

v.

BORG WARNER CORP., etal., Defendants.

No. 12CV3564(dlc).

September 22, 2015.

United States District Court, S.D. New York.

For plaintiff Deste C. Relyea, as Executor to the Estate of Jo Ann Relyea: Amber R. Long, Keith W. Binder, LEVY KONIGSBERG, LLP, New York, NY

For defendant Honeywell International Inc.: Andrew Sacher, McDERMOTT WILL & EMERY LLP, New York, NY

OPINION & ORDER

DENISE COTE, District Judge.

This case is a wrongful death action against the successor in interest to a manufacturer of brake pads that contained asbestos. Plaintiff contends that prolonged exposure to brake dust from these pads caused Jo Ann Reylea ("Reylea"), who was employed as a part-time bookkeeper at a gas station and auto repair shop from 1984 to 1990, to develop mesothelioma.

Defendant now moves in limine to preclude testimony from plaintiff's expert Dr. Jill Ohar ("Ohar") with respect to two related issues.[1] They seek to preclude under Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 573 (1993), any testimony that brake dust causes mesothelioma and any expert opinion based on the theory that "every exposure counts." In addition, defendants seek to preclude any testimony that asbestos or chrysotile cause mesothelioma absent a showing that such evidence applies to brake dust specifically. To the extent these motions seek to preclude Ohar's testimony as it is reflected in her expert reports, they are denied.

Ohar states in her expert report that,

[a]fter reviewing the medical record and the depositions of Ms. Relyea. . . I believe within a reasonable degree of medical certainty that Ms. Relyea had a history of asbestos exposure and suffers with a malignant mesothelioma that resulted from her asbestos exposure. The literature is replete with documentation that brake dust exposure provides asbestos exposure leading to the development of mesothelioma (1-5).

Asbestos is a carcinogen and there is a direct causal relationship between exposure to asbestos and the development of mesothelioma (6-9). Asbestos has been shown to be causally related to at least 80% of

mesotheliomas (10;11).

Ohar's report cites five peer-reviewed scientific articles that specifically discuss the linkage between brake dust and asbestos exposure.

In an affidavit dated July 9, 2015, Ohar elaborates upon her expert opinion. Most relevantly, she describes the types of evidence she considered in forming her opinion. She states that she considered Relyea's "detailed occupational history and exposure testimony documenting Ms. Relyea's exposure to asbestos from Bendix brakes over a period of approximately 5 years"; a "large body of medical and scientific research" regarding asbestos-related diseases, "including literature specific to brakes"; "published literature demonstrating significant levels of asbestos in the air during brake work"; and the opinion of another of plaintiff's experts, Steven Paskal ("Paskal"), that "Relyea likely incurred exposures that ranged from hundreds to thousands of times greater than (and in addition to) ambient pollution levels." Defendants have not challenged Paskal's testimony. On the basis of this information, Ohar opines that "exposure to asbestos from Bendix brakes was a substantial factor in causing Ms. Relyea's mesothelioma."

Federal Rule of Evidence 702 permits expert testimony so long as (1) "the testimony is based on sufficient facts or data," (2) "the testimony is the product of reliable principles and methods," and (3) "the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702; Daubert, 509 U.S. at 592. "[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007). The district court performs the role of gatekeeper — ensuring that the proponent has made the necessary showing and that the expert's testimony "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. Rule 702 and Daubert do not require exclusion here. First, defendants' motion in limine to preclude causation testimony in the absence of a proper foundation is denied because an adequate foundation exists. Ohar's expert report and affidavit rely on peer-reviewed scientific literature linking the alleged cancer-causing properties of asbestos or chrysotile to the alleged cancer-causing properties of brake dust. Second, it is unnecessary to rule on defendant's motion in limine to exclude Ohar's testimony to the extent it purports to rely upon an "every exposure counts" theory of causation because the defendant has not shown that Ohar intends to rely upon that theory.[2] Instead, Ohar relies upon a methodology "consistent with the Helsinki [C]riteria for diagnosis and attribution of asbestos related cancers." The Helsinki Criteria, drawn from a peer-reviewed scientific article published in 1997, set forth a number of factors to consider when determining whether exposure to asbestos has caused mesothelioma in a particular case, including occupational history and time elapsed between exposure and diagnosis. In addition, to apply the Helsinki Criteria to the facts of this case, Ohar states that she relies upon specific estimates of the magnitude of Relyea's brake dust exposure provided by Paskal as well as scientific literature specifically linking brake dust to asbestos. The Helsinki Criteria, scientific literature, and Ohar's professional experience together furnish a sufficiently reliable methodology to satisfy the Daubert threshold for admissibility. Ohar has also shown that there are sufficient facts upon which to base her opinion. Defendants may, of course, challenge on cross-examination the manner in which Ohar applies that methodology, including the evidence and studies upon which she relies in concluding that brake dust caused Relyea's mesothelioma. These challenges, however, go to the weight of Ohar's testimony, not its admissibility.

To the extent it derives from the facts and methodology described above, therefore, Ohar's testimony is not barred by Rule 702. To the extent Ohar attempts to testify in a manner different from the above and in reliance on the theory that "every exposure counts," defendants may renew their challenge to such testimony as that time.

[1] Defendants also make this motion with respect to another of plaintiff's experts, James A. Strauchen. Plaintiff, however, is not seeking to admit any testimony by Dr. Strauchen that would be affected by this motion.

[2] Defendant argues that Ohar is advancing an argument of "cumulative exposure" that is substantively the same as "every exposure counts." At deposition, Ohar stated that "any exposure above background. . . increases [a] person's risk of developing mesothelioma." This is not, however, a "rewording" of the "every exposure counts" theory, which maintains that any exposure "above background causes mesothelioma, no matter the type or the dose." (Emphasis added.) In addition, Ohar's expert report and affidavit make clear that her methodology does not depend upon the "every exposure counts" theory.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites