Vedros v. Northrop Grumman Shipbuilding, Inc. (E.D. La., July 1, 2015)

Our plain-English summary of Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, July 1, 2015).

Sally Gros Vedros died of mesothelioma. She and later her children sued many defendants, including CBS Corporation, formerly Westinghouse. Her father was a welder at Avondale from 1943 to 1976, and she said she washed his work clothes for years and was exposed to insulation dust containing asbestos. She also worked in Avondale's purchasing department from 1960 to 1963 and claimed direct exposure there. Westinghouse's expert, Dr. Sawyer, died, and the court allowed Dr. Gail Stockman to replace him, but only if her testimony stayed within the scope of his report. The plaintiffs asked the court to strike seven of her opinions. These included opinions linking a thyroid cancer to the mesothelioma, saying the mesothelioma was not asbestos-related, and saying neither the clothes-washing nor the Avondale work contributed to it. The court found these opinions went beyond or contradicted Dr. Sawyer's report and an earlier ruling that she died of asbestos-caused mesothelioma. It held they unfairly prejudiced the plaintiffs and granted the motion to strike.

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 Louisiana
• Decided: July 1, 2015
• Docket: Civil Action No. 11-1198
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted the plaintiffs' motion to strike seven opinions of Westinghouse's substitute expert, Dr. Gail Stockman, because they went beyond or contradicted the opinions of the deceased original expert, Dr. Sawyer; the plaintiffs won and Westinghouse lost.

What the court held. When a court lets a party substitute an expert for one who has died, on the condition that the substitute's testimony stay within the original expert's report, the substitute's opinions that go beyond or contradict the original expert's report may be struck as unfairly prejudicial to the opposing party.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Sally Gros Vedros: mesothelioma; died

The defendants

• CBS Corporation (f/k/a Viacom Inc., f/k/a Westinghouse Electric Corporation) (manufacturer)
• Northrop Grumman Shipbuilding, Inc. (premises owner)

Other decisions in this case

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

• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 7, 2014). The court granted Avondale's and the Avondale Interests' motions for partial summary judgment and dismissed with prejudice the plaintiffs' intentional tort, fraud and conspiracy claims.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 14, 2014). The district court granted General Electric's motion for summary judgment and dismissed the plaintiffs' claims against GE with prejudice, because the plaintiffs lacked evidence that GE supplied or attached any asbestos-containing material.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 17, 2014). The court granted Westinghouse's summary judgment motion on the turbine claims, dismissing them with prejudice, and denied it on the micarta claims, which go forward.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (April 24, 2014). The district court denied the plaintiffs' motion to remand and kept the case in federal court under supplemental jurisdiction, ruling for the defendants (Amchem, Continental, Westinghouse, Avondale and the Avondale Interests) and against the plaintiffs.
• Vedros v. Northrop Grumman (June 8, 2015). The court granted the defendants' motions for partial summary judgment, dismissing the plaintiff children's Lejeune (bystander) mental anguish damages claim against Avondale, Eagle, Eagle's insurers and McCarty.
• Vedros v. Grumman (June 17, 2015). The court granted Avondale's motion for partial summary judgment, ruling that the plaintiffs had no claim against Avondale under Louisiana Civil Code articles 1821-1823 based on its insurance buy-back agreements.
• Vedros v. Grumman (June 18, 2015). The court denied the plaintiffs' motions to exclude the expert testimony of Danny Joyce and Dennis Paustenbach, so the defendants (Avondale and Amchem) won the motions.
• Vedros v. Grumman (June 18, 2015). The court denied Continental Insurance Company's motion in limine and ruled that Sally Gros Vedros's earlier deposition testimony could be used at trial against Continental, so the plaintiffs prevailed on the motion.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (June 25, 2015). The court denied Amchem's motion to exclude plaintiffs' industrial hygienist expert Frank Parker, so plaintiffs may present his testimony at trial; Amchem lost, and its motion for leave to reply was also denied.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (July 29, 2015). The court granted in part and denied in part the defendants' motions to strike opinions of Plaintiffs' substitute expert Dr. Kraus, striking several opinions and his rebuttal report to Dr. Stockman and keeping the rest.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (August 4, 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.

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.

SALLY GROS VEDROS

v.

NORTHROP GRUMMAN SHIPBUILDING, INC., ET AL, SECTION: J(4)

Civil Action No. 11-1198.

July 1, 2015.

United States District Court, E.D. Louisiana.

ORDER

CARL J. BARBIER, District Judge.

Before the Court is a Motion to Strike Certain Opinions of Dr. Gail Stockman Which Are Outside the Scope of Opinions Offered by Dr. Robert Sawyer, Which Are Contrary to the Opinions of Dr. Robert Sawyer, and Which Are Contrary to Prior Rulings Already Rendered by This Court (Rec. Doc. 477) filed by Plaintiffs, Gerald Vedros, Lori Vedros Kravet, and Valerie Vedros White, and an Opposition (Rec. Doc. 496) and Supplemental Opposition thereto (Rec. Doc. 500) by Defendant, CBS Corporation (a Delaware corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation) ("Westinghouse").

The Court is familiar with the facts of the case and so will provide only a brief recitation here. This action arises from the death of Sally Gros Vedros ("Vedros") due to mesothelioma. Alton Gros, Vedros's father, worked at Avondale as a welder from 1943 to 1976, and Vedros claims to have spent many years washing her father's work clothes, which allegedly resulted in Vedros's secondary exposure to insulation dust containing asbestos. Vedros also worked at Avondale from 1960 to 1963 in the purchasing department, and she claims that she was directly exposed to asbestos while she worked at Avondale. Before her death, Vedros filed suit against many defendants, and after her death, her children joined the suit as Plaintiffs. Although Plaintiffs filed suit in state court, Defendants removed the matter to this Court on May 20, 2011. Since that time, the Court has continued trial of this matter on a number of occasions for various reasons. Accordingly, the Court has issued several Scheduling Orders. Westinghouse timely supplied the expert report of Dr. Robert Sawyer on April 5, 2012, in accordance with a previous scheduling order. (Rec. Doc. 424-1, p. 1; Rec. Doc. 424-2, p. 1) However, Dr. Sawyer is now decease d. (Rec. Doc. 424-1, pp. 1-2) Under the current Scheduling Order, trial is set for August 10, 2015. (Rec. Doc. 386)

Due to the death of Dr. Sawyer, Westinghouse moved the Court to allow substitution of Dr. Gail Stockman or Dr. William Longo as an expert witness. (Rec. Doc. 424) Plaintiffs generally did not oppose Westinghouse's request, but asked that the Court restrict the scope of the replacement report to that of the original report fr om Dr. Sawyer. Specifically, Plaintiffs argued that the substitute expert "should only be allowed to fulfill those opinions that cannot now be provided by Dr. Sawyer due to his passing." (Rec. Doc. 431, p. 1) The Court agreed with Plaintiffs that the scope of the replacement report should not exceed the scope of that submitted by Dr. Sawyer. In allowing the substitution, the Court further ordered that Westinghouse "shall limit the scope of the replacement testimony to that of Dr. Sawyer as much as possible." (Rec. Doc. 437, pp. 4-5) On June 15, 2015, Plaintiffs filed the instant Motion to Strike Certain Opinions of Dr. Gail Stockman Which Are Outside the Scope of Opinions Offered by Dr. Robert Sawyer, Which Are Contrary to the Opinions of Dr. Robert Sawyer, and Which Are Contrary to Prior Rulings Already Rendered by This Court (Rec. Doc. 477) Westinghouse opposed the motion on June 23, 2015 (Rec. Doc. 496) and filed a supplemental opposition on June 29, 2015. (Rec. Doc. 500)

Plaintiffs seek to preclude four categories of opinions of Dr. Stockman, described as follows: (1) opinions regarding Hurthle Cell Carcinoma of the thyroid; (2) opinions that Vedros's mesothelioma is not asbestos related; (3) opinions that Vedros's exposure from washing her father's work clothing at Avondale was not contributory to her mesothelioma; and (4) opinions that Vedros's occupational exposure while working at Avondale were not contributory.[1]

In response, Westinghouse argues that Dr. Stockman's report and opinions are within the scope of Dr. Sawyer's report because she applied the same basic occupational analysis as Dr. Sawyer to the same issues Dr. Sawyer was to address. Westinghouse admits that "a few of Dr. Stockman's views and opinions differ from that of Dr. Sawyer," but explains that "such a difference is to be expected as she is a different doctor with different training." (Rec. Doc. 496, p. 2) In sum, Westinghouse argues that Dr. Stockman's opinions remain within the same scope as those of Dr. Sawyer, despite the fact that "they reached different conclusions." (Rec. Doc. 496, p. 4)

The Court agrees that certain opinions of Dr. Stockman are outside the scope of opinions offered by Dr. Sawyer, contrary to the opinions of Dr. Sawyer, and contrary to prior rulings of this Court. First, Dr. Sawyer opined in his report that the history of Sally Vedros's Hurthle cell carcinoma "is [not] considered relevant to the risk of mesothelioma in this case." (Rec. Doc. 477-5, p. 2) In contrast, Dr. Stockman's report discusses the association of Hurthle cell carcinoma and mesothelioma with the genetic mutation informally known as "TERT" and opines that "it is biologically plausible that both malignancies were the result of this genetic mutation." (Rec. Doc. 477-4, pp.9, 11-12)

Second, Dr. Sawyer opined that asbestos exposure "is the only etiology to rationally consider, and fully explains [Vedros's] mesothelioma risk." (Rec. Doc. 477-5, p. 6) Moreover, this Court has previously determined that "Sally Vedros died as a result of mesothelioma resulting from asbestos exposure." (Rec. Doc. 294, p. 2) Despite this, Dr. Stockman's report discusses "mesothelioma unrelated to asbestos exposure" and she opines that certain aspects of Vedros's case "make [asbestos-related mesothelioma] less likely." (Rec. Doc. 477-4, pp. 8, 11)

Lastly, Westinghouse admits that Dr. Stockman's opinions as to whether paraoccupational and occupational exposure contributed to the development of Vedros's mesothelioma contradict those of Dr. Sawyer. (Rec. Doc. 496, p. 4) The Court agrees. In contrast to Dr. Sawyer, Dr. Stockman opines that washing her father's clothing and working as a punch operator at Avondale did not cause or contribute to Vedros's mesothelioma. (Rec. Doc. 477-4, pp. 11-12)

The Court finds that the foregoing opinions of Dr. Stockman deviate from those of Dr. Sawyer in a way that unfairly prejudices Plaintiffs. The decision to allow a substitute expert to testify was based on the understanding that the substitute report and testimony would not go beyond the original expert's report and testimony and that the substitute would testify to the same conclusions. Such a compromise allowed Westinghouse to replace its expert without unfairly surprising Plaintiffs with unexpected new opinions.

Accordingly,

IT IS HEREBY ORDERED that the Motion to Strike Certain Opinions of Dr. Gail Stockman Which Are Outside the Scope of Opinions Offered by Dr. Robert Sawyer, Which Are Contrary to the Opinions of Dr. Robert Sawyer, and Which Are Contrary to Prior Rulings Already Rendered by This Court (Rec. Doc. 477) is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave to File Reply Memorandum in Support of Plaintiffs' Motion to Strike (Rec. Doc. 501) is DENIED as moot.

[1] In total, Plaintiffs seek to strike seven of Dr. Stockman's opinions, labeled as "Assessment[s]" in her Expert Report (Rec. Doc. 477-4, pp.11-12): Opinion Nos. 1 (in part), 3, 4, 5, 8, 9, and 12. (Rec. Doc. 477-1, p. 3)

Sources

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