Smith v. Ford Motor Company (2013)

Our plain-English summary of Smith v. Ford Motor Company (U.S. District Court, District of Utah, January 18, 2013).

Ronnie Smith and his wife Linda sued Ford Motor Company and other parties in Utah state court in 2008, and the case was removed to federal court. Ronnie Smith developed mesothelioma and died in November 2009, and Linda Smith continued the case for his heirs. He said he was exposed to asbestos in Ford brake parts while working part-time at a gas station in Cedar City, Utah, from August 1966 to May 1968. He may have changed brake pads on Ford vehicles up to seven times there, and once on his own Ford in 1963, blowing brake dust away with an air hose. Ford asked the court to exclude the testimony of the plaintiff's pathologist, Dr. Samuel Hammar, who held that every exposure to asbestos contributes to mesothelioma. The court granted the motion. It found the opinion lacked sufficient facts or data, offered no proof that these few brake jobs were a meaningful cause of the disease, and was contradicted by studies of auto mechanics. It also said it would exclude the testimony under Rule 403.

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, District of Utah
• Decided: January 18, 2013
• Docket: Case No. 2:08-cv-630
• Stage: Discovery or evidence ruling
• State: Utah

Outcome. The district court granted Ford Motor Company's motion to exclude the testimony of plaintiff's expert, Dr. Samuel Hammar, finding his "every exposure" causation opinion inadmissible, which went against plaintiff Linda Smith.

What the court held. An expert's "every exposure" opinion, that each and every asbestos exposure contributes to mesothelioma, lacks sufficient facts, data and reliable science to be admissible under Rule 702 and Daubert, and would also be excluded under Rule 403.

Issues decided: Causation, Expert Testimony.

Why this case is relevant

In this unreported decision, a federal trial court in Utah excluded a pathologist's "every exposure" opinion: the view that each exposure to asbestos contributed to the plaintiff's mesothelioma. The court held that the opinion lacked sufficient facts or data under Rule 702 and Daubert. It found nothing to show that six brake jobs in the 1960s were more than an insignificant factor in the disease. The court said it would also exclude the testimony under Rule 403. It described itself as agreeing with a growing number of courts that had reached the same result, so it followed an existing line of decisions rather than setting a new rule.

Later decisions, mostly federal trial courts in Louisiana, Illinois, South Carolina, Florida and Utah, cited it in lists of rulings rejecting the every exposure theory or for its definition of that theory. A Florida state appeals court did the same. Several quoted its line that "just because we cannot rule anything out does not mean we can rule everything in." The Maryland Court of Appeals treated it as an unreported opinion that could be distinguished from a case where the expert's opinion was not about one or two incidental exposures to Ford brakes. The Texas Supreme Court also cited it.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Ronnie Smith: mesothelioma; died

Who	Work	Where	When	Products
Ronnie Smith	part-time service station attendant	full-service gas station, Cedar City, Utah	August 1966 to May 1968	brakes, clutches and friction materials, chrysotile, Ford brake parts (Ford Motor Company)
Ronnie Smith	personal vehicle owner changing brake pads		1963	brakes, clutches and friction materials, Ford brake pads (Ford Motor Company)

The defendants

• Ford Motor Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• Borg-Warner Corporation v. Flores (Texas Supreme Court, 2007). The Texas Supreme Court reversed the court of appeals' judgment, which had affirmed Arturo Flores's jury verdict, and rendered judgment for Borg-Warner because the causation evidence was legally insufficient.
• Moeller v. Garlock Sealing Technologies, LLC (U.S. Court of Appeals, Sixth Circuit, 2011). The Sixth Circuit reversed the district court's denial of Garlock's motion for judgment as a matter of law, so Garlock won and the jury's $516,094 verdict for Olwen Moeller could not stand.
• Butler v. Union Carbide Corporation (Georgia Court of Appeals, 2011). The Georgia Court of Appeals affirmed the trial court's exclusion of Dr. Maddox's specific causation testimony and its grant of summary judgment to Union Carbide, so Mrs. Butler lost.
• Smith v. Kelly-Moore Paint Company, Inc. (Texas Court of Appeals, 2nd District, 2010). Affirmed the no-evidence summary judgment for Kelly-Moore Paint Company against the Smiths, because they offered no evidence of a minimum threshold dose of chrysotile that increases mesothelioma risk.
• Georgia-Pacific Corp. v. Stephens (Texas Court of Appeals, 2007). The court of appeals reversed the judgment on the jury verdict for Fred and Betty Stephens and rendered judgment for Georgia-Pacific, because the expert causation testimony was legally insufficient.

Later decisions citing this one

20 later decisions in our library cite this one:

• Bostic v. Georgia-Pacific Corp. (Texas Supreme Court, 2014). The Texas Supreme Court affirmed the court of appeals' take-nothing judgment for Georgia-Pacific, holding that the plaintiffs' causation evidence was legally insufficient to support the jury verdict.
• Dixon v. Ford Motor Company (Maryland Court of Appeals, 2013). The Court of Appeals of Maryland reversed the intermediate appellate court, reinstated the jury verdicts for the Dixon plaintiffs against Ford Motor Company, and reversed the trial court's judgment for Ford on its cross-claim against Georgia-Pacific, which won back the jury's verdict.
• Crane Co. v. DeLisle (Florida District Court of Appeal, 4th District, 2016). The appeals court reversed the $8 million verdict, directing entry of a directed verdict for Crane Co. and ordering a new trial on all issues, including damages, for R.J. Reynolds (as successor to Lorillard and Hollingsworth & Vose), because expert causation testimony was wrongly admitted.
• Riegler v. Carlisle Companies, Incorporated (U.S. District Court, District of Utah, 2023). The court granted Ford's motion for summary judgment on all of Plaintiff's claims after excluding Dr. Staggs's specific causation opinion, and granted in part and denied in part the motions to exclude: Ewing's opinion and Staggs's general causation opinion were admitted.
• Doolin v. Ford Motor Company (U.S. District Court, Middle District of Florida, 2018). The district court excluded the plaintiff's specific-causation expert, Dr. Kradin, and then granted summary judgment to Ford Motor Company and Pneumo Abex LLC, ruling against the estate's representative, Stacey Doolin.
• Haskins v. 3M Company (U.S. District Court, District of South Carolina, 2017). The district court granted Air and Liquid Systems' and Crane's motions to exclude Dr. Bedrossian's specific-causation testimony in both cases, and denied the motions as to other experts because plaintiffs conceded they would offer no specific-causation opinion.
• Bell v. Foster Wheeler Energy Corp. (U.S. District Court, Eastern District of Louisiana, 2016). The court granted in part and denied in part the defendants' motions in limine: it excluded the plaintiffs' experts' specific causation opinions as unreliable but allowed them to testify on Mr. Bell's mesothelioma and general causation, and refused to strike Dr. Kradin or disqualify Dr. Kraus.
• Bell v. Abb Group, Inc. (U.S. District Court, Southern District of Illinois, 2015). The court denied General Electric's motion in limine (joined by John Crane) to exclude the testimony of plaintiff's expert Dr. Vuskovich, so the plaintiff estate won the ruling.
• Bell v. Abb Group, Inc. (U.S. District Court, Southern District of Illinois, 2015). The court denied the defendants' (John Crane, Velan Valve and Honeywell) Daubert motion to limit the plaintiff's expert Dr. Vuskovich's testimony, and found a hearing unnecessary.
• Comardelle v. Pennsylvania General Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2015). The district court granted Amchem's (Bayer CropScience's) motion and barred plaintiffs' expert Dr. Hammar from giving "every exposure" specific-causation testimony that Comardelle's mesothelioma was caused by Benjamin Foster 81-27 or any other particular exposure.
• Comardelle v. Pennsylvania General Insurance Company (U.S. District Court, Eastern District of Louisiana, 2015). The court granted Amchem's (Bayer CropScience) motion and excluded plaintiffs' expert Dr. Hammar's "every exposure" specific-causation testimony, including as to Benjamin Foster 81-27, while allowing his diagnosis and general-causation opinions.
• Kochera v. General Electric Company (U.S. District Court, Southern District of Illinois, 2015). The district court denied General Electric's motion in limine, joined by Owens-Illinois and John Crane, to exclude plaintiff Kochera's medical expert Dr. Vuskovich, so the plaintiff won the ruling.
• Neureuther v. Atlas Copco Compressors, LLC (U.S. District Court, Southern District of Illinois, 2015). The court denied defendant John Crane's motion (joined by Warren Pumps) to exclude plaintiff Charles Neureuther's expert, Dr. Matthew Vuskovich, finding him qualified and his methodology reliable under Daubert.
• Neureuther v. Atlas Copco Compressors, LLC (U.S. District Court, Southern District of Illinois, 2015). The court denied the motion in limine by CBS Corporation (Westinghouse), joined by Crane Co. and Warren Pumps, to exclude plaintiff Charles Neureuther's expert Dr. Vuskovich, so the expert may testify.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, 2015). The court granted in part and denied in part the defendants' motions to exclude Dr. Kraus: he was qualified and could testify on diagnosis and general causation, but could not give specific causation opinions based on the "every exposure above background" theory.
• Davidson v. Georgia Pacific LLC (U.S. District Court, Western District of Louisiana, 2014). The court excluded the plaintiffs' causation expert's "every exposure" testimony and granted summary judgment to CertainTeed, Beazer East, Georgia-Pacific and Union Carbide, dismissing the plaintiffs' claims with prejudice and dismissing the third-party complaints as moot.
• Krik v. Crane Co. (U.S. District Court, Northern District of Illinois, 2014). The court granted the defendants' motions (Crane, Owens-Illinois, Marley-Wylain and ExxonMobil) to bar plaintiff Krik's experts from offering "Any Exposure," "Each and Every Exposure" and "Single Fiber" causation opinions, and denied Mobil's other requests to bar the experts' testimony about exposure at Mobil facilities.
• Quirin v. Lorillard Tobacco Company (U.S. District Court, Northern District of Illinois, 2014). The district court denied Lorillard and Hollingsworth & Vose's motions to bar the expert reports and testimony of Dr. Millette and Dr. Brodkin, so the plaintiff's expert evidence was admitted.
• Quirin v. Lorillard Tobacco Company (U.S. District Court, Northern District of Illinois, 2014). The court denied Georgia-Pacific's motion to exclude plaintiff's expert testimony and argument that each and every exposure to asbestos caused Mr. Quirin's mesothelioma (as moot for Dr. Brody), so the plaintiff estate prevailed on the motion.
• Anderson v. Ford Motor Company (U.S. District Court, District of Utah, 2013). The court granted Crane Co.'s renewed motion, joined by York, Honeywell, Goulds Pumps, Flowserve and Sepco, and excluded the plaintiff's experts' "every exposure" specific causation testimony, a ruling for the defendants over Arva Anderson.

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.

LINDA SMITH, as Personal Representative on behalf of the Legal Heirs of RONNIE SMITH,

Deceased, Plaintiff,

v.

FORD MOTOR COMPANY, etal., Defendants

Case No. 2:08-cv-630.

January 18, 2013.

United States District Court, D. Utah, Central Division.

MEMORANDUM DECISION AND ORDER

DEE BENSON, District Judge.

This matter is before the court on defendant Ford Motor Company's Daubert Motion to Exclude Expert Testimony of Samuel Hammar, M.D. (Dkt. No. 96.) The court heard oral argument on the motion on November 13, 2012. Having considered the parties' arguments, memoranda, and the relevant law, the court enters the following Memorandum Decision and Order. BACKGROUND

Ronnie and Linda Smith, husband and wife, filed this asbestos personal injury action on July 15, 2008, in the Third District Court for the State of Utah. Ronnie Smith passed away on November 3, 2009, and the case is now being prosecuted by Linda Smith as plaintiff's representative on behalf of Ronnie Smith's heirs. The case was removed to this court on August 20, 2008.

In this action, plaintiff Linda Smith contends that Ronnie Smith was injured as a result of exposure to asbestos products which contributed to his development of mesothelioma. Plaintiff is suing numerous parties, including Ford Motor Company, which allegedly manufactured asbestos-containing products which exposed plaintiff to unknown doses of asbestos for unknown durations.

In his deposition, plaintiff Ronnie Smith stated he was exposed to asbestos-containing Ford brake parts while working as a part-time service station attendant at a full-service gas station in Cedar City, Utah, from August 1966 to May of 1968, a period of approximately 19 months. Although plaintiff offered that "he didn't know for sure" with respect to the number of times he changed brake pads on Ford vehicles, plaintiff asserts that during his 19 months of employment as a service station attendant, he may have changed brake pads on Ford vehicles on as many as seven occasions — and on one non-work related occasion in 1963 when he changed brake pads on his personal Ford automobile. According to Mr. Smith, the process of changing brake pads consisted of lifting the vehicles with a hydraulic-hoist and removing the vehicle's wheels with an air wrench. Thereafter, plaintiff would blow an accumulation of a black or gray dust-like substance away from the brake pad location with an air hose. Plaintiff claims the air hose caused the dust to enter the air which he then inhaled. After plaintiff removed the old brake pads and cleared the dust from the work zone, he replaced the brake pads, thereby completing the process. Plaintiff asserts that on the occasions he performed this process on Ford brand vehicles, the brake pads he was changing contained asbestos; and consequently, the dust he inhaled through the process of changing the brake pads exposed him to asbestos and caused his injuries.

DISCUSSION

Dr. Hammar's opinion is based on a theory of causation that has variously been described as the "every exposure" or "every breath" theory, which holds that each and every exposure to asbestos by a human being who is later afflicted with mesothelioma, contributed to the formation of the disease.

Defendant asserts that this theory is without scientific foundation, that it is mere speculation designed for litigation, and that it is inadmissible pursuant to Rule 702 of the Federal Rules of Evidence and the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Having now reviewed the parties' briefing and the extensive number of exhibits, which includes prior court opinions, law review articles, and the declarations of numerous science and medical experts, including Dr. Hammar, the court agrees with the defendant's position. Dr. Hammar's opinion is, as a matter of law, unsupported by sufficient or reliable scientific research, data, investigations or studies, and is inadmissible under Rule 702.

Furthermore, even if it were deemed admissible under Rule 702, the court would exclude Dr. Hammar's testimony pursuant to Rule 403 of the Federal Rules of Evidence, because the probative value of such unsupported speculation by Dr. Hammar is substantially outweighed by the danger of unfair prejudice, as well as being confusing, and presenting a danger of misleading the jury. In reaching this conclusion, the court agrees with the growing number of published opinions from other courts that have reached a similar result: that the every exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support. When carefully examined, it becomes clear that Dr. Hammar's proffered testimony is precisely the kind of testimony the Supreme Court in General Electric Co. v. Joiner, 118 S.Ct. 136 (1997), observed as being nothing more than the "ipse dixit of the expert." Id. at 519.

The arguments in support of the court's holding are ably expressed in the opening and reply briefs of the defendant, and those briefs are adopted by the court, as well as is the expert opinion of Dr. Mark Roberts, which the court finds to be a well-reasoned examination of the standard Daubert factors most closely associated with the relevant medical scientific community. (See Def.'s Mem. in Supp. of Daubert Mot. to Exclude Expert Test. of Samuel Hammar, M.D., Def's Reply Mem. in Supp. of Daubert Mot. to Exclude Expert Test. of Samuel Hammar, M.D., Def.'s Mem. in Supp. of Daubert Mot. to Exclude Expert Test. of Samuel Hammar, M.D., Ex. 2, Mark A. Roberts M.D. Ph.D., Aff.) Consistent with those arguments, the court's reasons for rejecting Dr. Hammar's opinion include the following:

1. The every exposure theory is not based on sufficient facts or data.

The every exposure theory does not hold up under careful examination. It is questionable whether it can even properly be called a theory, inasmuch as a theory is commonly described as a coherent collection of general propositions used to describe a conclusion, and while there are some general propositions used by Dr. Hammar, they fall far short of supporting the legal liability he attempts to reach with them. Rule 702 and Daubert recognize above all else that to be useful to a jury an expert's opinion must be based on sufficient facts and data. The every exposure theory is based on the opposite: a lack of facts and data. When Dr. Hammar states that he cannot rule out any asbestos exposure as a possible cause of an individual's mesothelioma he is confirming the fact that there are insufficient facts and data to establish what minimum dosage levels of asbestos are required to cause cancer in a human being. The fact is the medical community at present does not know the answer to the all-important question regarding legal causation, how much is too much? Dr. Hammar seeks to base his causation opinion not on the thin reed that he cannot rule any exposure out, but on the opposite: he rules all exposures "in," boldly stating that Mr. Smith's mesothelioma "was caused by his total and cumulative exposure to asbestos, with all exposures and all products playing a contributing role." (Hammar Decl. at 17, ¶ 17.) This asks too much from too little evidence as far as the law is concerned. It seeks to avoid not only the rules of evidence but more importantly the burden of proof. It is somewhat like a homicide detective who discovers a murdered man from a large family. Based on his and other detectives' training and experience the detective knows that family members are often the killer in such cases. When asked if there are any suspects the detective says he cannot rule out any of the murdered man's relatives. This would be reasonable, but it would not allow the detective to attribute legal liability to every family member on the basis of such a theory. That is, in effect, what Dr. Hammar and plaintiff are trying to do here, without any underlying data as to the amount of chrysotile asbestos fibers found in Ford brakes that are needed to cause cancer in a human being. Dr. Hammar wants to be allowed to tell a jury that all of the plaintiff's possible exposures to asbestos during his entire life were contributing causes of the plaintiff's cancer, and, therefore, sufficient to support a finding of legal liability as to the manufacturer of each asbestos containing product, without regard to dosage or how long ago the exposure occurred. Just because we cannot rule anything out does not mean we can rule everything in.

2. Legal liability must rest on proof of specific causation.

Dr. Hammar's every exposure theory is supported by certain general conclusions that are not in dispute. These are: (1) asbestos fibers, both amphibole and chrysotile, are carcinogenic, (2) the majority (+/- 80%) of mesothelioma cancers are caused by asbestos exposure, (3) prolonged and large exposures to asbestos in certain types of occupations and industries (e.g., mines, shipyards) satisfy the legal requirement of "substantial contribution" to allow a jury to determine legal causation in such large-dosage cases, and (4) there is no known minimum dose of asbestos that is required to cause cancer in a human being. Indeed, the vast majority of Dr. Hammar's declaration dwells on these matters about which the parties have no dispute.

What is missing from Dr. Hammar's proposed testimony is the necessary research and data to show that Mr. Smith's six alleged exposures to asbestos based on six brake jobs in the 1960s constitutes proof of sufficient exposure to cause Mr. Smith's cancer on its own (which plaintiff has never contended) or that such exposure amounted to more than an insignificant or de minimus factor in the development of the disease that afflicted Mr. Smith forty years after those exposures.

Dr. Hammar cites to no studies, reports, examinations, or data of any kind to show that the alleged dust that Mr. Smith allegedly breathed in during those six brake jobs was sufficient to be a contributing cause, substantial or otherwise, to the development of Mr. Smith's cancer. He points to no research or findings that even suggest that the amount of chrysotile fibers that one would expect to find in the alleged brake dust associated with those incidents would cause cancer, let alone how many of such fibers would still be carcinogenic after the brakes had been used long enough to need to be replaced. Dr. Hammar cites to no such studies because there are none.

Dr. Hammar's testimony does virtually nothing to help the trier of fact decide the all-important question of specific causation. His opinions are based solely on his belief that he should not rule out any exposure as a contributing cause. Accordingly, with regard to the most basic purpose of Rule 702 — that the expert's opinion should be helpful to the jury — Dr. Hammar's testimony fails.

Beyond the almost complete lack of facts or data to support specific causation, Dr. Hammar's testimony also appears on its face to be inconsistent. He tells us on page 4 of his declaration that "I do not believe every asbestos fiber an individual breathes into their lungs contributes to the development of mesothelioma," and on page 5 that "it is not possible to specifically identify an individual fiber from the individual's occupational, non-occupational, or bystander exposure that caused the cellular events that led to the development of mesothelioma," yet concludes his opinion on page 17 with the bold declaration that "[i]n my opinion, the information referenced in my report is sufficient for me, as a practicing pathologist to come to the specific causation determination to a reasonable degree of medical certainty that each of defendant's product [sic] was a contributing cause in the development of Mr. Smith's mesothelioma and death." Hammar Decl. at 4-5, 17 3. Dr. Hammar's and Plaintiff's references and citations are, for the most

part, irrelevant.

In his declaration, Dr. Hammar cites to numerous scholarly studies and articles in support of his testimony. Upon even a cursory review, virtually all of these sources are either irrelevant or of little assistance to the court in providing support for the admissibility of Dr. Hammar's opinions. For the most part they only reinforce the general undisputed principles discussed above.

The same is true for the majority of plaintiff's memorandum in support of Dr. Hammar's testimony. All of the separate bullet-points from pages 6 to 14 relate to large scale exposures of asbestos in mills and plants and other work sites that have nothing in common with this case.

4. The scientific literature and studies that exist do not support Dr. Hammar's

views.

Separate and apart from the lack of any reliable scientific methodology or data that supports Dr. Hammar's opinion, the research that has been done contradicts his point of view. Chief among these are the tests that have been conducted to determine if there is any greater incidence of mesothelioma cancers among auto mechanics than in the general population. All of these studies have shown no statistically significant difference.

Plaintiff discounts these studies as worthless because they were funded by asbestos manufacturers, but has not shown them to be flawed or fraudulent. And perhaps more to the point, neither plaintiff nor his expert reference any studies to the contrary.

5. Numerous courts have examined the every exposure theory and found it

lacking under Daubert and Rule 702.

Numerous courts have examined and rejected expert testimony attempting to assert causation without assessing the dose and held the every "exposure theory" lacking under Daubert and Rule 702. These include:

Moeller v. Garlock Sealing Technologies, LLC, 660 F.3d 950, 952 (6th Cir. 2011)

Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005)

Wills v. Amerada Hess Corp., 379 F.3d 32, 40, 53 (2d Cir. 2004)

Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 774 (Tex. 2007)

Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 321 (Tex. App. 2007)

Smith v. Kelly-Moore Paint Co., Inc., 307 S.W.3d 829, 839 (Tex. App. 2010)

Butler v. Union Carbide Corp., 310 Ga. App. 21, 712 S.E.2d 537 (2011)

Betz v. Pneumo Abex, LLC, 44 A.3d 27, 58 (Pa. 2012)

In re Toxic Substances Cases, A.D. 03-319, 2006 WL 2404008 (Pa. Com. Pl. Aug. 17, 2006)

This court agrees with the general assessment of these various state and federal courts that the every exposure theory does not qualify as admissible expert testimony. The Butler court summed up expert testimony regarding the every exposure theory accurately by stating that an expert's "any exposure theory is, at most, scientifically-grounded speculation: an untested and potentially untestable hypothesis." Butler v. Union Carbide Corp., 310 Ga. App. 21, 43, 712 S.E.2d 537, 552 (2011), cert. denied (Oct. 17, 2011)

CONCLUSION

For the foregoing reasons, Ford Motor Company's Daubert Motion to Exclude Expert Testimony of Samuel Hammar, M.D. is GRANTED.

Sources

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