Opinion
Case No.: 4:21-cv-04772-YGR
2022-07-11
Frank J. SHELTON, et al., Plaintiffs, v. AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
Jordan Blumenfeld-James, Ethan A. Horn, Dean Omar Branham Shirley LLP, Dallas, TX, for Plaintiffs. James G. Scadden, Glen R. Powell, Gordon Rees Scully Mansukhani LLP, Oakland, CA, Edward Joseph White, Pro Hac Vice, Wilbraham Lawler Buba, Philadelphia, PA, for Defendant Air & Liquid Systems Corporation. Amy Jo Talarico, Morgan Lewis & Bockius, LLP, San Francisco, CA, Samlecia D. Gaye, Tucker Ellis LLP, San Francisco, CA, for Defendant Carrier Corporation. John Russell Lister, Palmieri Tyler Wiener Wilhelm Waldron, Irvine, CA, for Defendant CLA-VAL Co. Andrew Livingston Sharp, Foley & Mansfield PLLP, Walnut Creek, CA, for Defendant Cleaver-Brooks, Inc. Geoffrey M. Davis, K&L Gates LLP, Los Angeles, CA, for Defendants Crane Co. Daniel James Kelly, Tucker Ellis LLP, San Francisco, CA, for Defendant Flowserve US Inc. Bina Ghanaat, Charles S. Park, Hugo Parker, LLP, San Francisco, CA, for Defendant Foster Wheeler Energy Corporation. Derek S. Johnson, Charles T. Sheldon, Emily Elizabeth Anselmo, Katherine Paige Gardiner, WFBM, LLP, San Francisco, CA, Katherine Mercer-Lawson, Pro Hac Vice, Denver, CO, for Defendant General Electric Company. Edward Martinovich, Frederick W. Gatt, Bobbie Rae Bailey, Leader Berkon Colao & Silverstein LLP, Los Angeles, CA, for Defendant IMO Industries Inc. Glen R. Powell, Gordon Rees Scully Mansukhani LLP, Oakland, CA, for Defendant Velan Valve Corp. Kevin Douglas Jamison, Erin Nicole Empting, Justin Finnell Cronin, Jamison Empting Cronin, LLP, Los Angeles, CA, Christopher G. Conley, Pro Hac Vice, Evert Weathersby Houff, Bogart, GA, for Defendant ViacomCBS Inc. James P. Cunningham, Tucker Ellis LLP, San Francisco, CA, Andrew Smith Russell, Pierce Davis & Perritano, LLP, Boston, MA, for Defendant Warren Pumps LLC. Emily D. Bergstrom, Kurt Tyler Putnam, Patrick Mark Mahoney, Bhc Law Group LLP, Emeryville, CA, Kerryann Marie Cook, Pro Hac Vice, The Cook Group, New York, NY, for Defendant Weir Valves & Controls USA, Inc. Caren D. Dombrowski, Christine Dianne Calareso, Gilliam Fipp Stewart, W. Joseph Gunter, CMBG3 Law LLC, Irvine, CA, for Defendant William Powell Company.
Jordan Blumenfeld-James, Ethan A. Horn, Dean Omar Branham Shirley LLP, Dallas, TX, for Plaintiffs.
James G. Scadden, Glen R. Powell, Gordon Rees Scully Mansukhani LLP, Oakland, CA, Edward Joseph White, Pro Hac Vice, Wilbraham Lawler Buba, Philadelphia, PA, for Defendant Air & Liquid Systems Corporation.
Amy Jo Talarico, Morgan Lewis & Bockius, LLP, San Francisco, CA, Samlecia D. Gaye, Tucker Ellis LLP, San Francisco, CA, for Defendant Carrier Corporation.
John Russell Lister, Palmieri Tyler Wiener Wilhelm Waldron, Irvine, CA, for Defendant CLA-VAL Co.
Andrew Livingston Sharp, Foley & Mansfield PLLP, Walnut Creek, CA, for Defendant Cleaver-Brooks, Inc.
Geoffrey M. Davis, K&L Gates LLP, Los Angeles, CA, for Defendants Crane Co.
Daniel James Kelly, Tucker Ellis LLP, San Francisco, CA, for Defendant Flowserve US Inc.
Bina Ghanaat, Charles S. Park, Hugo Parker, LLP, San Francisco, CA, for Defendant Foster Wheeler Energy Corporation.
Derek S. Johnson, Charles T. Sheldon, Emily Elizabeth Anselmo, Katherine Paige Gardiner, WFBM, LLP, San Francisco, CA, Katherine Mercer-Lawson, Pro Hac Vice, Denver, CO, for Defendant General Electric Company.
Edward Martinovich, Frederick W. Gatt, Bobbie Rae Bailey, Leader Berkon Colao & Silverstein LLP, Los Angeles, CA, for Defendant IMO Industries Inc.
Glen R. Powell, Gordon Rees Scully Mansukhani LLP, Oakland, CA, for Defendant Velan Valve Corp.
Kevin Douglas Jamison, Erin Nicole Empting, Justin Finnell Cronin, Jamison Empting Cronin, LLP, Los Angeles, CA, Christopher G. Conley, Pro Hac Vice, Evert Weathersby Houff, Bogart, GA, for Defendant ViacomCBS Inc.
James P. Cunningham, Tucker Ellis LLP, San Francisco, CA, Andrew Smith Russell, Pierce Davis & Perritano, LLP, Boston, MA, for Defendant Warren Pumps LLC.
Emily D. Bergstrom, Kurt Tyler Putnam, Patrick Mark Mahoney, Bhc Law Group LLP, Emeryville, CA, Kerryann Marie Cook, Pro Hac Vice, The Cook Group, New York, NY, for Defendant Weir Valves & Controls USA, Inc.
Caren D. Dombrowski, Christine Dianne Calareso, Gilliam Fipp Stewart, W. Joseph Gunter, CMBG3 Law LLC, Irvine, CA, for Defendant William Powell Company.
ORDER GRANTING JOINT DEFENSE MOTION TO STRIKE THE SPECIFIC-CAUSATION OPINIONS OF DR. EDWIN HOLSTEIN
Dkt. No. 291
Yvonne Gonzalez Rogers, United States District Court Judge Pending before the Court is defendants’ motion to strike the specific-causation opinions of plaintiffs’ causation expert, Dr. Edwin Holstein. (Dkt. No. 291.) The Court finds this matter appropriate for disposition without oral argument and GRANTS the motion for the reasons set forth below. The Court notes at the outset that the Dr. Holstein presented an opinion based on the requirements of California law. Having found that federal maritime law applies (Dkt. No. 303), the opinion does not comport with the more rigorous requirements of federal law and therefore must be stricken as lacking sufficient foundation.
The Court notes that defendants filed the motion as a Motion to Strike the Specific-Causation Opinions of Edwin Holstein on the docket, but the caption of the motion reads "Joint Defense Motion to Exclude Dr. E. Holstein". Having reviewed the motion and the supporting evidence, the Court considers the filing as a motion to strike Dr. Holstein's specific-causation opinions rather than a motion to completely exclude Dr. Holstein as defendants’ briefing only focuses on Dr. Holstein's specific-causation opinions and does not address his general causation opinions. The Court reserves on whether there would be a basis for general causation opinions to be proffered.
I. BACKGROUND
The complaint (Dkt. No. 1-1, Complaint, "Compl.") alleges the following:
Plaintiff Mr. Shelton served in the Navy from approximately the mid-1960s to the early 1970s. (Compl. ¶ 5.) During his time with the Navy, Shelton worked as a "Machinist Mate" while stationed aboard the USS Constellation, USS Repose, and USS Haleakala, where he regularly and routinely performed maintenance and repairs to various equipment in the machinery spaces to which he was assigned. (Id. ) Shelton was tasked with disturbing, sanding, scraping, cutting and abrading asbestos-containing components of the equipment. (Id. ) As a result, Shelton was exposed to asbestos-containing products and developed malignant mesothelioma as a result of the exposure. (Id. ¶ 6.)
II. LEGAL STANDARD
The legal standard is not in dispute. In short, Federal Rule of Evidence 702 permits opinion testimony by an expert as long as the witness is qualified and, based upon that qualification, the witness's opinion is relevant and reliable. An expert witness may be qualified by "knowledge, skill, experience, training, or education" as to the subject matter of the opinion. Fed. R. Evid. 702. The proponent of expert testimony has the burden of proving admissibility in accordance with Rule 702. Fed. R. Evid. 702, Advisory Committee Notes (2000 amendments). For scientific opinions, they must be based on scientifically valid principles. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Experts assist the fact finder in their own evaluation of the evidence by providing the fact finder with opinions based upon verifiable, scientific, or other objective analysis. Id. at 589–90, 113 S.Ct. 2786.
III. DISCUSSION
1. Overview of Dr. Holstein's Qualifications
Dr. Holstein obtained his undergraduate degree from Harvard College and an M.S. from Massachusetts Institute of Technology. (Dkt. No. 280-1, Dr. Holstein's Report, "Exp. Report", at ¶ 6). After obtaining his M.S., Dr. Holstein received his M.D. from Mount Sinai School of Medicine. (Id. ) He is Board Certified in Internal Medicine, as well as in Preventive Medicine, with a subspecialty in Occupational Medicine. (Id. at ¶ 4.) Dr. Holstein has been studying and/or teaching about the health effects of asbestos exposure since the 1970s. (See e.g. id. at ¶ 5.) His work includes assessing the amount of exposure a person has received to asbestos, and the likely health effects of that exposure. (Id. ) He is also knowledgeable, and able, to estimate one's past exposure to asbestos. (Id. )
2. Overview of Dr. Holstein's Specific-Causation Opinions and Methodology
Defendants argue that Dr. Holstein's specific-causation opinions should be excluded because they are conclusory and not based on any sound scientific method and are therefore irrelevant and unreliable. (See generally Dkt. 291, Motion to Strike, "Mot.") The parties generally agree that causation experts in asbestos cases use a qualitative assessment and/or a quantitative assessment.
Here, in opining on specific causation, Dr. Holstein proffers a "qualitative assessment" to determine whether Mr. Shelton's exposure to the defendants’ products caused his mesothelioma. (Dkt. No. 292, Opposition to Motion to Strike, "Opp."). Dr. Holstein explains that "the causation of mesothelioma has been established by the occupational history of asbestos exposure, not by quantitative analysis of that exposure (air measurements in the workplace if the specific affected individual), since these rarely exist now or years ago at the time of exposure." (Exp. Report, at ¶ 211.) According to Dr. Holstein, in "the medical and scientific community for the past 47 years", one's "history of asbestos exposure is the most reliable evidence upon which to base a causation determination of mesothelioma." (Id. )
Based on this qualitative assessment, Dr. Holstein opines that whether exposure to asbestos from a product is significant depends on a number of factors including: "(1) the nature of exposure; (2) the level and duration of exposure; (3) whether a product gives off respirable asbestos fibers; (4) the level of exposure; (5) whether a person was close to or far from the source of fiber release; (6) how frequently the exposure took place and how long the exposure lasted; (7) whether engineering or other methods of dust control were in place; and (8) whether respiratory protection was used." (Id. at ¶ 212.) He further opines that approximate information on these matters, rather than precision is usually sufficient, and the most commonly used tool for determining causation is one's occupational history. (Id. )
Thus, in discussing Mr. Shelton's occupational history, Dr. Holstein relies on Mr. Shelton's deposition testimony and incorporates by reference the expert report of plaintiff's naval expert Captain Arnold P. Moore, PE. Specifically, Dr. Holstein begins with the fact that Mr. Shelton served upon the USS Sperry, the USS Constellation, the USS Repose, and the USS Haleakala during his time in the Navy. (Id. at ¶ 46.) Dr. Holstein identifies Mr. Shelton's occupational history as including work as a Machinist Mate and Fireman which involves work comprised of repairing and maintaining all the equipment in the machinery space to which plaintiff was assigned. (Id. at ¶ 47.) Dr. Holstein also explains that plaintiff's repair and maintenance activities would have been carried out on or around many varieties of pumps and valves, as well as boilers, propulsion turbines, drive turbines, and other types of equipment. (Id. ) Thus, further concludes Mr. Shelton's exposure included "bystander exposures" to asbestos due to the work of others. (Id. at ¶ 48.)
Relying on Captain Moore's report, Dr. Holstein explains nearly all the equipment in the machinery spaces was insulated and usually contained a high level of asbestos. (Id. at ¶ 49.) Dr. Holstein next relies on scientific literature to explain that exposure to asbestos containing products is a major cause of mesothelioma in human beings. (Id. at ¶ 50.) He also relies on scientific literature to approximate the level of asbestos exposure for common industrial repairs and maintenance practices, which Dr. Holstein opines are "reasonably useful approximations of the air concentrations to which Mr. Shelton was exposed" as he carried out his tasks. (Id. at ¶¶ 65, 103-123.)
Dr. Holstein explains that "because asbestos dust is so strongly associated with mesothelioma, proof of significant exposure to asbestos dust is proof of specific causation." (Id. at ¶ 170.) He opines that "the total dose of asbestos that the patient breathes [ ] is the cause of the disease." (Id. at ¶ 171.) He explains that "[m]esothelioma and [ ]asbestos exhibit a dose-response relationship such that the more someone is exposed to asbestos, the greater their risk for the development of the[ ] cancer [ ]" and that "significant exposure to asbestos-containing dust from the use of products has been shown to contribute to cause [ ] mesothelioma." (Id. at ¶¶ 170-71.)
Dr. Holstein further states that "there is no scientific evidence that a particular exposure or set of exposures, whether defined by time of exposure, brand of product, fiber type or any other characteristic, can be excluded from a causative role in the development of mesothelioma" and that "all significant exposures contribute to the causation" of mesothelioma. (Id. at ¶ 172.) He does not "believe that a single asbestos fiber will cause an observable case of mesothelioma" because "it is not sensible to claim that every fiber contributes to the development of mesothelioma." (Id. )
Having considered the evidence before him, Dr. Holstein concludes that Mr. Shelton's "cumulative exposures to asbestos" in connection with his repair and maintenance work on the ships "were sufficient to have contributed to his overall dose of asbestos, which was the direct and sole cause of his malignant mesothelioma." (Id. at ¶ 69) (with respect to defendant General Electric); (Id. at ¶ 71) (defendant Foster Wheeler); (Id. at ¶ 75) (defendant Westinghouse); (Id. at ¶ 77) (defendant Carrier); (Id. at ¶ 81) (defendant DeLaval); (Id. at ¶ 84) (defendant Warren); (Id. at ¶ 85) (defendant Buffalo); (Id. at ¶ 88) (defendant Cleaver Brooks for Davis Engineering); (Id. at ¶ 89) (defendant Atwood and Morrill); and (Id. at ¶ 90) (defendant Powell).
3. Analysis
Defendants contend that Dr. Holstein's specific-causation opinions should be excluded because they are not scientifically sound. Unsurprisingly, plaintiff disagrees.
The Court notes that plaintiffs spend significant time on the Helsinki criteria in their briefing, which relates to whether one's exposure to asbestos generally causes mesothelioma. General exposure is not at issue here. See Bobo v. Tennessee Valley Auth. , 855 F.3d 1294, 1301 (11th Cir. 2017) (crediting experts use of Helsinki factors, noting that such factors assist in "determining whether asbestos exposure caused a particular person's disease."); see also Exp. Report, at ¶¶ 54-55 (discussing the Helsinki factors under general causation). Thus, such arguments do not persuade.
The parties concur that Lindstrom v. A-C Product Liability Trust , 424 F.3d 488 (6th Cir. 2005), overruled on other grounds by Air and Liquid Sys. Corp. v. DeVries , ––– U.S. ––––, 139 S. Ct. 986, 203 L.Ed.2d 373 (2019) is the seminal case for establishing proof of causation under maritime law. In Lindstrom , the Sixth Circuit explains that to establish causation, a plaintiff must show, "for each defendant, that (1) he was exposed to defendant's product, and (2) the product was a substantial factor in causing the injury." 424 F.3d at 492. Evidence of exposure for a substantial period of time can provide a basis for the inference that the product was a substantial factor in causing plaintiff's injury. Id. However, a mere showing that defendant's product was present at plaintiff's workplace is insufficient to establish causation. Id.
The Ninth Circuit has adopted the substantial factor test outlined in Lindstrom. See McIndoe v. Huntington Ingalls, Inc. , 817 F.3d 1170, 1176 n.6 (9th Cir. 2016). Ninth Circuit jurisprudence explains that a plaintiff may meet the substantial factor test by showing "that exposure from [the defendant's] sources was ‘sufficiently sustained (or frequent) and intense to constitute [causation].’ " Stephens v. Union Pacific Railroad Company , 935 F.3d 852, 856 (9th Cir. 2019) ; McIndoe , 817 F.3d at 1176 ("absent direct evidence of causation, a party may satisfy the substantial-factor test by demonstrating that the injured person had substantial exposure to the relevant asbestos for a substantial period of time."). The test can also be met by "present[ing] [ ] evidence regarding the amount of exposure to dust ..., or critically, the duration of such exposure during any of the[ ] incidents. Without such facts, [plaintiff] can only speculate as to the actual extent of [ ] exposure to asbestos from the shipbuilder's materials." McIndoe , 817 F.3d at 1176-77 (emphasis in original).
The tests of the Ninth and Sixth Circuits differ from that of California which merely requires a showing that plaintiff's "particular asbestos disease is cumulative in nature" which can be satisfied by establishing that "a series of exposures was a ‘legal cause’ of [plaintiff's] injury." Rutherford v. Owens-Illinois, Inc. , 16 Cal.4th 953, 958, 982, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (1997).
Ultimately, the Court finds Dr. Holstein "qualitative assessment" of plaintiff's exposure is too generic. Dr. Holstein does not dispute a "qualitative assessment" requires him to assess plaintiff's exposure to asbestos in light of factors relevant to plaintiff's occupational history. Nevertheless, while Dr. Holstein states that he has considered the "frequency, duration, and proximity" of the asbestos-containing products relative to Mr. Shelton's work history, (Exp. Report, at ¶ 65), the statement is not based upon any actual identification or evaluation of Mr. Shelton's actual exposure, frequency, or the regularity of the work performed on or around each of the defendants’ products.
For instance, Dr. Holstein does not describe how many times plaintiff would have encountered each of the defendants’ products and how long those interactions would have been. While precision of such information is arguably difficult given the lapse in time, Dr. Holstein concedes that he did not even try to employ such method because in his mind such information was not required. (See Dkt. No. 280-2, Holstein Deposition, "Depo." at 61:20-63-20.) Rather, as to each defendant, Dr. Holstein simply looked at whether the defendants’ products were present on the ship at the time Mr. Shelton was stationed on the vessel and based his conclusions thereon. Mere exposure is insufficient to establish causation under federal maritime law. Lindstrom , 424 F.3d at 492. Specifically, Dr. Holstein summarily opines that (i) each defendant provided certain equipment used on one of the ships during Mr. Shelton's time and service thereon; (ii) the equipment contained asbestos; (iii) "Mr. Shelton would have experienced exposures asbestos when he most likely repaired, assisted in the repair, supervised the repair or observed the repair or maintenance of these items"; and (iv) his "cumulative exposures to asbestos in connection with his work or around [defendants’ equipment] were sufficient to have contributed to his overall dose of asbestos, which was the direct and sole cause of his malignant mesothelioma." (See e.g., id. at ¶ 67-69) (emphasis supplied). Aside from this summary approach, Dr. Holstein does not employ any method, much less one scientific or reliable, for determining whether Mr. Shelton's exposure to any of the defendants’ products was significant, and thus, could be a substantial factor in causing his mesothelioma.
Instead, Dr. Holstein devotes the majority of his report to principles and the assessment of general causation, mainly the idea that significant exposure to asbestos causes mesothelioma. (See Exp. Report, at ¶ 172) ("the best scientific evidence is that all significant exposures contribute to the causation of a subsequent mesothelioma or lung cancer.") Ultimately, that is the problem. Dr. Holstein's opinions could apply to any asbestos case, but maritime law requires that he analyzes the facts specific to each of the defendants in this case including their products. While Dr. Holstein opines, generally, that "significant" exposures to asbestos causes mesothelioma, his report begs the question: was Mr. Shelton's exposures to the remaining defendants’ products "significant?" Merely asking the trier of fact to trust his evaluation given his significant expertise is insufficient. (See Opp. at 10: 15-18.) Further, Dr. Holstein cannot opine as to the ultimate facts. Experts are allowed to offer opinions which will assist the jury in its determination of whether Mr. Shelton's exposures to each defendants’ products are significant. Dr. Holstein has to explain why the exposures are significant so that the jury can do their job.
Given Dr. Holstein's medical training and past work experiences, the Court finds Dr. Holstein's opinions on general causation, and the impact that exposure to asbestos has on one's health, has foundation and are scientifically sound. Indeed, defendants do not argue that these opinions should be excluded, and instead agree that exposure to asbestos can cause mesothelioma, crediting such opinion as a "truism". Mot. at 9.
Accordingly, the Court finds that Dr. Holstein's opinions do not comport with federal maritime law and lack sufficient foundation upon which he may opine that plaintiff's actual interactions with the defendants’ products, including proximity and duration, were a possible substantial cause of plaintiff's mesothelioma. Due to the lack of a sufficient foundation under federal law, the Court finds the opinions unreliable as to each individual defendant.
While Dr. Holstein's attempt to apply a qualitative assessment of plaintiff's exposure fail, the parties agree that Dr. Holstein could have also applied a quantitative method and calculated Mr. Shelton's dose of exposure to assess whether the exposures to defendants’ products were substantial. Dr. Holstein acknowledges that he can do such calculations, and has done so in other cases, but chose not to do so here, believing that such calculation was not required under California law. (Holstein Depo. at 51:20-52:7; 102:6-103:15.)
In sum, without either a sufficient qualitative or any quantitative methodology, Dr. Holstein fails to employ any reliable methodology for determining whether Mr. Shelton's exposure to each of the remaining defendants’ products was significant, and thus a substantial factor in causing plaintiff's mesothelioma. Accordingly, the Daubert factors support the Court's exclusion of Dr. Holstein's specific-causation opinions under Federal Rule of Evidence 702.
IV. CONCLUSION
For the foregoing reasons, the motion to strike the specific-causation opinions of Dr. Holstein is GRANTED .
This Order terminates Docket Number 291.
IT IS SO ORDERED .