Strong v. Honeywell International, Inc. (E.D. Wash., Mar. 8, 2022, evidence ruling)

Our plain-English summary of Strong v. Honeywell International, Inc. (U.S. District Court, Eastern District of Washington, March 8, 2022).

Kristina Strong sued Honeywell International, individually and as administrator of the estate of Matthew Strong, who developed peritoneal mesothelioma. She alleged it was caused by exposure to asbestos-containing automotive friction products, including Bendix brakes made by Honeywell's predecessor. On November 8, 2021, the court had excluded the opinions of her experts, Drs. Tarin and Cohen, on specific causation under Daubert, finding that none of the publications showed chrysotile asbestos in brake dust causes peritoneal mesothelioma. Strong asked the court to rescind that order and hold a Daubert hearing. The court found rescission appropriate. It said Ninth Circuit precedent for toxic torts required admitting the opinions, that the gap between the publications and the doctors' opinions was not too great to warrant exclusion, and that the dispute went to weight, a matter for the jury. It rescinded the earlier order, denied Honeywell's motion to exclude, and found a hearing unnecessary.

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, Eastern District of Washington
• Decided: March 8, 2022
• Docket: No. 2:20-CV-0136-TOR
• Stage: Discovery or evidence ruling
• State: Washington

Outcome. The court rescinded its earlier order excluding plaintiff's experts Drs. Tarin and Cohen on specific causation and denied Honeywell's Daubert motion, so plaintiff Strong prevailed on this motion; no Daubert hearing was held.

What the court held. Where the gap between the scientific publications and the experts' opinions is not too great, toxic tort expert opinions are admissible under Daubert, and disputes over their basis go to weight for the jury rather than admissibility.

Issues decided: Expert Testimony.

The people and their exposure

• Matthew W. Strong: peritoneal mesothelioma; died

The defendants

• Honeywell International, Inc., individually and as successor to Allied Signal, Inc. and The Bendix Corporation (manufacturer)

Other decisions in this case

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

• Strong v. Honeywell International, Inc. (March 8, 2022). The court denied the plaintiff's motion for partial summary judgment on the defendant's fifth defense, because material facts about the decedent's exposure to other asbestos remained disputed; Honeywell prevailed on the motion.

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.

KRISTINA T. STRONG, Individually and as Administrator of the Estate of Matthew W. Strong,

Deceased, Plaintiff,

v.

HONEYWELL INTERNATIONAL, INC., Individually and as Successor to Allied Signal, Inc. and The

Bendix Corporation, Defendant.

No. 2:20-CV-0136-TOR.

March 8, 2022.

United States District Court, E.D. Washington.

ORDER GRANTING IN PART PLAINTIFF'S MOTION TO RESCIND

THOMAS O. RICE, District Judge.

BEFORE THE COURT is Plaintiff's Motion to Rescind Court's Order of 11/8/2021 and for a Daubert Hearing (ECF No. 162). This matter was submitted for consideration with telephonic oral argument on March 2, 2022. John L. Steffan argued on behalf of Plaintiff. Kevin P. Greene argued on behalf of Defendant. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, Plaintiff's motion to rescind is granted in part. BACKGROUNDD

This is a suit for damages brought by Kristina Strong, individually and as Administrator of the Estate of Matthew T. Strong. Decedent Matthew Strong developed peritoneal mesothelioma which Plaintiff alleges was caused by exposure to asbestos-containing automotive friction products, including Bendix brand brakes manufactured by Honeywell's predecessor. See ECF No. 30 (Second Amended Complaint).

On November 8, 2021, this Court excluded Plaintiff's expert opinion evidence of Drs. Tarin and Cohen concerning specific causation for failure to meet the necessary threshold for admission under Daubert. See ECF No. 160. On January 4, 2022, Plaintiff filed the present motion. ECF No. 162. The parties filed their respective response and reply. ECF Nos. 171, 172. DISCUSSION

A. Motion to Rescind

The Court "possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." City of Los Angeles, Harbor Div. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (internal citation omitted). This power is derived from the common law, not the Federal Rules of Civil Procedure. Id. at 886. Based on a review of the arguments, the Court finds rescission appropriate. In its prior Order, the Court reviewed the evidence relied on for the doctors' opinion that inhalation of chrysotile asbestos in brake dust caused Plaintiff's peritoneal mesothelioma. ECF No. 160. The Court found many of the publications unhelpful for the specific causation at issue, i.e. none of the proffered publications demonstrate chrysotile asbestos in brake dust causes peritoneal mesothelioma. Plaintiff complains that the Court addressed issues not briefed by the parties. However, the parties' briefing left the Court to ferret out the issue in the first place. The Court agrees that Ninth Circuit precedent for toxic torts, as cited in ECF No. 162, dictates that the doctors' opinions be admitted. The analytical gap between the publications and the doctors' opinions is not too great to warrant exclusion. Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998). Because the reasoning in each opinion is scientific and will assist the jury, the parties' dispute goes to the weight, rather than admissibility, of the opinions — it is a matter for the jury to decide. Id. at 1230-31. Therefore, the Court finds the opinions of Dr. David Tarin and Dr. Richard Cohen admissible under Daubert. ACCORDINGLY, IT IS HEREBY ORDERED:

1. Plaintiff's Motion to Rescind Court's Order of 11/8/2021 and for a Daubert Hearing (ECF No. 162) is GRANTED in part. The Court finds a Daubert Hearing unnecessary.

2. The Court's November 8, 2021 Order (ECF No. 160) is RESCINDED.

3. Defendant's Daubert Motion to Exclude Plaintiff's Experts' Causation Opinions and Request for Evidentiary Hearing (ECF No. 59) is DENIED.

The District Court Executive is directed to enter this Order and furnish copies to counsel.

Sources

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