Hanson et al v. Colgate-Palmolive Company et al

RESPONSE in Opposition re MOTION to Exclude Testimony of Defense Expert Jennifer Sahmel and Memorandum in Support

S.D. Ga.October 6, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION SHARON M. HANSON AND DOUGLAS B. HANSON. PLAINTIFF, VS. COLGATE-PALMOLIVE COMPANY; CYPRUS AMAX MINERALS COMPANY; And JOHN DOES NO. 1-15. DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:16-cv-00034-LGW-RSB DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO EXCLUDE TESTIMONY OF DEFENSE EXPERT, JENNIFER SAHMEL, MPH, CIH, CSP Defendants are offering Jennifer Sahmel, MPH, CIH, CSP (“Sahmel”) as an expert industrial hygienist and certified safety professional with 20 years of experience in exposure and risk assessment. Her opinions are set forth in detail in a 60-page report and establish that, even assuming a hypothetical worst-case level of contamination in cosmetic talcum powder, Mrs. Sharon Hanson’s alleged exposures to asbestos would have been less than the exposure she received by simply breathing in the ambient air. Plaintiffs’ arguments to exclude Sahmel’s testimony are based on fundamental misinterpretations of her report. Plaintiffs’ primary argument is that Sahmel should not be permitted to testify that Cashmere Bouquet cosmetic talc never contained asbestos because Sahmel is not a geologist or microscopist. This argument ignores the fact that Sahmel is not offering that testimony, but instead is assuming that Cashmere Bouquet was contaminated with 0.1% asbestos for purposes of her exposure and risk assessment analysis. She discusses the published literature relating to Cashmere Bouquet and other talcum powders and explains how it Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 1 of 16 2 informs the variables in her exposure assessment, which is well within her professional expertise. Plaintiffs misstate Sahmel’s opinion when they refer to her “conclusion that Cashmere Bouquet never contained asbestos,” and therefore provide no basis to exclude any opinions that Sahmel actually offers. Plaintiffs’ second argument incorrectly claims that Sahmel’s calculations supporting her conclusion—that Ms. Hanson’s hypothetical exposures from talc contaminated with 0.1% asbestos would be less than background—are “speculative.” But Plaintiffs fail to acknowledge that, for every step of Sahmel’s analysis, she meticulously explains the basis for her calculations, cites published literature supporting every aspect of her calculations, and chooses the most conservative method of calculating Ms. Hanson’s potential worst-case exposures. Finally, Plaintiffs contend that Sahmel fails to account for the alleged “fact” that “exposure to asbestos at concentrations below the level of detection still poses a risk for hazardous airborne exposure.” This “fact” is pure argument, and Plaintiffs fail to connect this entire discussion to Federal Rule of Evidence 702 or to Sahmel’s methodology or its application. It is instead a string of citations to statements Plaintiffs appear to contend undermine Sahmel’s conclusions. But Plaintiffs do not offer any expert or other explanation of their theory, do not explain what any of these quotes have to do with Sahmel’s calculations, and do not otherwise connect this discussion to arguments related to the admission or exclusion of expert testimony. For example, Plaintiffs quote statements related to asbestos-contaminated Superfund sites, and to studies of vermiculate and zonolite, but fail to connect these to cosmetic talc, to Sahmel’s testimony, or to the requirements of FRE 702. Plaintiffs’ conclusion is that “Sahmel’s report failed to account for the significant exposure that occurs even when current testing protocols lead to a non-detect result.” Plaintiffs’ Brief at 13. Even if it were true that one could assume the Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 2 of 16 3 presence of asbestos in the face of a test that does not detect it (and it’s not, as Plaintiffs’ experts agree1), that has nothing to do with Sahmel’s exposure calculations, which assume the presence of 0.1% asbestos in cosmetic talc. As set forth below, because Sahmel is fully qualified and possesses an ample factual basis to provide the expert testimony set forth in her report, Plaintiffs’ motion should be denied. I. Sahmel’s Qualifications and Experience Sahmel has a master’s degree in public health from the University of California at Berkley and is currently working on her Ph.D. in industrial hygiene and environmental health science. (See Sahmel CV attached as Exhibit B.) She is a certified Industrial Hygienist and a Certified Safety Professional with 20 years of experience in human health exposure and risk assessment and workplace health and safety. (Id.) She has conducted chemical-specific exposure assessments for a wide range of substances, including asbestos. (Id.) Her work experience in the late 1990s and early 2000s includes employment at NASA and then at EPA’s Office of Pollution Prevention and Toxics. (Id.) From 2007 to earlier this year, she worked at Cardno ChemRisk, LLC in the fields of exposure and human health risk assessment where she has conducted exposure assessments and evaluated airborne asbestos exposures. (Id.) After Cardno ChemRisk, Sahmel started her own firm called Insight Exposure and Risk Sciences, Inc. (Id.) Sahmel has authored numerous publications that address exposure and risk assessment, including peer reviewed studies specific to asbestos as well as a paper on exposure reconstruction. (Id.) Sahmel has been accepted by courts as an expert on multiple prior occasions in asbestos exposure cases, including cases involving allegations related to cosmetic talc. (See List of Deposition and Trial Testimony, attached as Exhibit C.) 1 Deposition of James Webber at 20:16-25. See Webber Deposition attached as Exhibit A. Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 3 of 16 4 II. Sahmel’s Opinions Regarding Ms. Hanson’s Exposure Sahmel was retained to offer opinions concerning Ms. Hanson’s potential for exposure to asbestos from Cashmere Bouquet talcum powder, which she used from 1952 to 1973. She prepared a detailed report setting forth her expert opinions and the basis for those opinions. (See 5/15/17 Report attached as Exhibit D.) In formulating her opinions, she reviewed numerous case-specific documents in addition to over 130 reference materials that include published papers, regulatory materials and textbooks on industrial hygiene, toxicology, medicine and standard practices associated with asbestos. (See Exhibit D at 5-6 and 61-72.) Further, her report includes a 39-page General Asbestos Reference List. (Id. at 74.) Sahmel’s exposure assessments and methods in this case were conducted in accordance with professional standards for exposure assessments and are detailed at length in her report. (Id. at pp. 44-60.) Based upon her qualifications, experience, review, and analysis, Sahmel formulated the following exposure assessments related to the Cashmere Bouquet talcum powder at issue in this case: (1) Published bulk testing indicates little, if any, evidence that cosmetic grade talc mined from the locations at issue (Italy, Montana and North Carolina) contained measurable quantities of asbestiform amphibole or serpentine mineral fibers; (2) Airborne asbestos fiber concentrations associated with industrial mining of talc in Italy, Montana and North Carolina have demonstrated that occupational exposure potential to talc mined from these areas is well below the current occupational exposure limits for asbestos, if even measurable, and any industrial mining exposure potential to asbestos as a contaminant in talc would far exceed, in terms of both intensity and duration, any measurable exposures associated with consumer use of cosmetic grade talc sourced from the same areas; (3) Based on all the available evidence in the peer-reviewed literature and published and unpublished reports, the estimated cumulative asbestos exposure potential from consumer use of cosmetic grade talc over a 70-year lifetime is well within the cumulative background asbestos exposure experienced by the general U.S. population, and is far below the cumulative asbestos exposure potential associated with working at the current OSHA PEL for asbestos over 40 to 45 years; Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 4 of 16 5 (4) Based on the available evidence, Ms. Hanson was unlikely to have been exposed to any measureable asbestos from her use of Cashmere Bouquet talcum powder. However, even using an upper bound assumption that trace asbestos could theoretically have been found in the Cashmere Bouquet product between 1952 and 1973, according to the available data, any associated asbestos exposure potential would have been well within the corresponding cumulative background or ambient levels of asbestos found in the air in the U.S.; and (5) Exposures to asbestos to the general U.S. population across a wide range of measured background airborne fiber concentrations have not been shown to increase the risk of asbestos-related disease, including mesothelioma. Exhibit D at 17. To arrive at these conclusions, Sahmel reviewed the relevant literature regarding (1) talc, its associated mineral composition, and the potential for amphibole contamination [report at 19- 20]; (2) the history of exposure standards for talc and asbestos [report at 21-24]; (3) the regulation of cosmetic talc for asbestos content and labeling [report at 24-27]; (4) the source mines for the talc used in Cashmere Bouquet, [report at 27-31]; (5) airborne concentrations of talc in talc mines and mills, [report at 31-32]; and (6) published and unpublished exposure assessments for consumer use of cosmetic talcum powder, [report at 33-42]. Based on her review of this literature, Sahmel calculated the hypothetical cumulative exposures to asbestos from Ms. Hanson’s use of cosmetic talc. Sahmel based her exposure assessment on several key variables, including the amount of talc exposure from using the product, the amount of asbestos assumed to be in talc, and on Ms. Hanson’s testimony about her use of talc. Sahmel’s methodology and calculations are set forth in detail in five equations in her report. Exh. D at 44-47. In terms of the amount of talc exposure, Sahmel relies on multiple studies in the published literature reporting various exposure scenarios, which she summarizes in detail in Tables 2 and 3 of her report. Id. at 46 and 51 -52 (“Table 2 and Table 3 present a summary of the representative exposure measurement data associated with the consumer application of cosmetic talcum powder, excluding measurements collected from glove box Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 5 of 16 6 scenarios.”). Regarding asbestos content, Sahmel used a hypothetical worst-case scenario of 0.1% asbestos in all of the Cashmere Bouquet that Ms. Hanson used, which the FDA’s Quantitative Risk Assessment Committee used for its assessment of cosmetic talc in 1985. Exh. D at 43 and 45. Based on her calculations, Sahmel found that, even in a worst-case exposure, Ms. Hanson’s cumulative exposures would be less than background level exposures, which have not been shown to cause asbestos-related disease. Exh. D at 50 (“using a hypothetical asbestos fiber concentration of 0.12 f/cc corresponding to exposure at the OSHA PEL for talc containing an estimated worst-case asbestos content of 0.1% as used by the FDA in their risk assessment, her total estimated cumulative lifetime exposure would be 0.004 f/cc year, which is within the range of reported lifetime ambient asbestos exposures in the U.S.”). III. ARGUMENT A. Legal Standard Under Rule 702 of the Federal Rules of Evidence, “expert testimony is admissible if (1) the expert is qualified to testify regarding the subject matter of the testimony; (2) the expert’s methodology is ‘sufficiently reliable as determined by the sort of inquiry mandated in Daubert’ and (3) the expert’s testimony will assist the trier of fact in understanding the evidence or determining a fact issue.” Chapman v. Procter & Gamble Distributing, LLC, 766 F.3d 1296, 1304 (11th Cir. 2014) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). “Experts may be qualified in various ways, including by scientific training, education, and experience.” Seamon v. Remington Arms Co., LLC, 813 F.3d 983, 988 (11th Cir. 2016). Further, “[u]nlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 2796 (1993). “This relaxation of the usual requirement of firsthand knowledge is premised on an assumption that the expert’s opinion Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 6 of 16 7 will have a reliable basis in the knowledge and experience of his discipline.” Hendrix v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010). B. Sahmel Is Qualified to Calculate Ms. Hanson’s Potential Exposure to Asbestos and to Evaluate Scientific Literature Related to Her Calculations Plaintiffs’ first argument addresses Sahmel’s qualifications, and it starts with a fundamental misstatement: “Ms. Sahmel intends to give the opinion that Cashmere Bouquet cosmetic talc has never contained asbestiform fibers.” Plaintiffs’ Brief at 4. That is not true. Sahmel does review testimony and published literature regarding the source mines for Cashmere Bouquet, but her discussion of that evidence serves only to provide a reasonable scientific foundation for her use of a “worst-case” estimate of 0.1% asbestos contamination in talc when calculating Ms. Hanson's potential exposure. Thus, Plaintiffs asked Sahmel if “you’re just saying that there’s no asbestos evidence at the Italy, Montana and North Carolina mines in the first place, right” and she explained “that’s not quite the statement I’m making here.” Dep. at 18:10-19:6. Rather, as Sahmel explained, the published data “indicates no convincing evidence that cosmetic grade talc mined from these locations contained measurable quantities of asbestiform amphibole or serpentine mineral fibers, and if asbestiform mineral fibers were present, the quantity would likely have been well below the 0.1% limit proposed by the FDA for cosmetic grade talc.” Id. In other words, Sahmel is answering a question that might be asked of an expert doing an exposure assessment: “why didn’t you assume 2%, 10%, or 15% (etc.) asbestos in Ms. Hanson’s talc instead of 0.1%?” And Sahmel’s answer is set forth in detail in, among others, pages 27-31 of her report in which she explains that the published literature does not identify asbestos in those talc sources. Plaintiffs turn that statement into an opinion not actually offered, i.e., that “Cashmere Bouquet has never contained asbestiform fibers,” and then argue that only a geologist or Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 7 of 16 8 microscopist could provide that testimony. Plaintiffs fail, however, to explain why Sahmel, as an experienced industrial hygienist, risk assessor and exposure scientist, cannot review and comment on scientific literature that informs her analysis and calculations. Sahmel cited every study she intends to rely upon, and Plaintiffs have no criticisms of any study she cited, nor have they identified any specific published studies that Plaintiffs believe Sahmel should have considered but did not. Plaintiffs’ misguided effort to preclude her from testifying as a geology, microscopy, or mineralogy expert—which she does not intend to do—should be rejected. In the next section of their motion (Plaintiffs’ Brief at 6-9), Plaintiffs assert essentially the same arguments, but focus on the fact that Sahmel did not review individual tests of Cashmere Bouquet and on her review of the literature regarding the source mines for the talc used in Cashmere Bouquet. Again, Plaintiffs misunderstand Sahmel’s proffered testimony. Plaintiffs argue that because Sahmel has not reviewed test results of Cashmere Bouquet itself, Sahmel has no foundation for “forming her conclusion that Cashmere Bouquet never contained asbestos.” (Plaintiffs’ Brief at 7.) But Sahmel will not opine that Cashmere Bouquet never contained asbestos. Instead, as discussed, she intends to opine that, based on her review of the published literature, the use of a 0.1% level of assumed contamination is a reasonable basis for estimating a worst-case exposure to asbestos from use of Cashmere Bouquet, because the 0.1% is above any asbestos contamination demonstrated – or lacking – in the published literature and other evidence she reviews in detail in her report. Plaintiffs also focus on Sahmel’s review of the geological literature (Plaintiffs’ Brief at 7- 9), repeating their argument from Section I of their brief (id. at 4-6) that Sahmel is not qualified to offer geological opinions. But again, Sahmel is clear that she cites the literature finding no Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 8 of 16 9 asbestos in the relevant source mines in order to support her use of a hypothetical 0.1% level of asbestos contamination as a reasonable worst-case scenario of exposure. (Ex. D (Sahmel report) at 31.) Further, Plaintiffs do not even attempt to argue that Sahmel has misunderstood the published literature finding no asbestos in the relevant source mines, nor have they cited to other literature indicating the presence of asbestiform minerals in the relevant source mines at levels exceeding 0.1%.2 In sum, Plaintiffs fail to address the opinion that Sahmel is actually proffering and provide no evidence that Sahmel’s use of a 0.1% level of contamination as a worst-case estimate is methodologically unsound or unsupported by the information on which she relies. Plaintiffs have not cited literature stating this estimate is inappropriate. Plaintiffs have not provided a declaration from another industrial hygienist or other expert critiquing Sahmel’s estimate or any aspect of her analysis. And if Plaintiffs contend that Sahmel should have considered other evidence, they are free to ask her those questions on cross-examination. Plaintiffs, however, have presented no basis for excluding Sahmel’s testimony regarding her worst-case exposure estimate, and their Motion should be denied. See also Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1330 (11th Cir. 2014) (holding an expert’s opinion admissible when she “formed her opinion by using reliable tools, applying an established body of [knowledge], and drawing on her extensive experience in the field”). 2 Plaintiffs also claim that the literature regarding Colgate’s source mines is somehow not “connected [] to the presence or absence of asbestos in Colgate’s Cashmere Bouquet product.” (Plaintiffs’ Brief at 8.) This argument is wrong as a matter of basic logic, but also contradicts Plaintiffs’ core theory of the case, which is that asbestos contamination in the source mines led to asbestos contamination in the product (e.g., Dkt. 133, at 1-2). Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 9 of 16 10 C. Sahmel’s Exposure Analysis Is Scientifically Reliable Plaintiffs next argue in section IV that Sahmel’s methodology is “riddled with unexplained assumptions and unscientific conversions, as well as being outside of her admitted – and admittedly limited – area of expertise.” Plaintiffs’ Brief at 9. Plaintiffs do not even attempt to address Sahmel’s expertise in this section, apparently relying on their earlier failed arguments that ignore her credentials in exposure assessment, risk assessment and industrial hygiene. And in stark contrast to Sahmel’s report, which meticulously cites scientific authority and identifies the mathematical equations for every step in her calculations (Ex. D (Sahmel report) at 44-47), Plaintiffs fail cite even a single scientific or legal authority supporting their arguments, leaving them without any scientific basis for critiquing Sahmel’s methodology. Plaintiffs’ unsupported arguments should be rejected. Regarding Sahmel’s use of a 0.1% hypothetical level of contamination as a worst-case estimate, Plaintiffs assert that Sahmel does not identify which studies of talc exposure “actually counted the number of asbestos fibers in the talc dust measurement.” Plaintiffs’ Brief at 10. Plaintiffs further assert that “absent a specific measurement of the number of asbestos fibers, if any, in the talc dust, these studies are irrelevant in a risk assessment for asbestos exposure from talcum powder dust.” Id. Plaintiffs cite nothing in support of this statement – no testimony from Sahmel, or their experts, or law. It can safely be ignored as an unsupported and unexplained assertion of counsel. It can also be rejected because it ignores huge portions of Sahmel’s report and is premised on a misunderstanding of Sahmel’s methodology. After discussing the studies on which she relies, Sahmel explains that, for studies that did not report fiber concentrations, she “converted all respirable dust results to estimated airborne fiber concentrations.” Report at 44- 45. As Sahmel indicated, for some studies, “a conversion from particle count to fiber count must Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 10 of 16 11 be made,” and she explains the basis for her conversion and provides the equations that she used to perform the calculations, along with an explanation as to why her calculations are conservative in that they tend to overestimate fiber concentrations. Id. She then applies these conversion formulas to the dust concentration data from several studies in order to obtain fiber concentration figures and summarizes her data in tables which report, among other things, the hypothetical asbestos concentrations in “f/cc” or fibers per cubic centimeter of air. Id. at 51-52. Plaintiffs’ unexplained assertion that Sahmel did not calculate or otherwise account for the airborne fiber concentrations does not begin to provide an argument for exclusion under FRE 702. Plaintiffs next attack Sahmel’s assumption of a 0.1% asbestos concentration and her upper bound fiber asbestos fiber concentration of 0.12 fibers per cubic centimeter (f/cc), claiming incorrectly that “Sahmel does not provide the basis of this assumption.” Plaintiffs’ Brief at 10. Here again, Plaintiffs’ arguments amount to nothing more than counsel’s statements that Sahmel’s choices of these levels is improper. Plaintiffs point to no expert opinion, authoritative text, or any other source to support these statements. They do not identify a principle of exposure assessment that Sahmel supposedly violated or otherwise connect these statements to her methodology. And once again, the basis for these assumptions in Sahmel’s report is ignored. Sahmel explains her selection of 0.1% asbestos by reference to a similar exposure analysis conducted by the FDA, which also assumed a 0.1% level of hypothetical worst-case contamination, and to the FDA’s exposure limit proposed in 1973. Report at 43-45. Sahmel also discusses the underlying testing that supported the FDA’s choice of 0.1% as a reasonable worst-case level of contamination. Report at 43, 45. Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 11 of 16 12 Further, Sahmel used the 0.1% estimate only when calculating hypothetical asbestos concentrations for studies that reported only dust concentration, but did not report fiber concentrations. Report at 44-45 (“For studies only presenting respirable dust measurements, it was necessary to estimate the amount of asbestos potentially found in historical cosmetic talc products.”). Indeed, the study that reports the highest purported asbestos-fiber concentrations—a study performed by plaintiffs’ experts retained in litigation against Colgate and that was based on testing funded exclusively by plaintiffs’ lawyers—reported actual fiber concentrations, such that the 0.1% contamination assumption did not apply. Report at 52 (citing “Gordon et al., 2014”). Even this study, which reported asbestos fiber concentrations that exceed the estimated exposures obtained by applying the 0.1% assumption to the dust concentrations reported in other studies, still reports cumulative exposures less than background. Report at 48. Compare id. at 52 (indicating highest cumulative exposure based on data provided by Gordon paper was 0.28 f/cc-year) with id. at 57 (stating upper bound for cumulative ambient asbestos exposure is 0.4 f/cc-year). Thus, even excluding the data Sahmel obtained by applying the 0.1% assumption, her report would still demonstrate that Ms. Hanson’s worst-case cumulative asbestos exposure from use of cosmetic talcum powder was well within the range of cumulative exposures that any person receives by simply breathing the ambient air. Plaintiffs claim that the OSHA PEL (permissible exposure limit) for talc is “irrelevant,” but do not explain how the Permissible Exposure Limit for talc is irrelevant when addressing exposure to talc. As Sahmel explains, this value (0.12 f/cc) corresponds “to exposure at the OSHA PEL for talc containing an estimated worst-case asbestos content of 0.1% as used by the FDA in their risk assessment.” Sahmel also explains that using occupational exposure estimates allows for comparison to benchmarks, and that she calculates both occupational and Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 12 of 16 13 environmental exposures. Report at 46-47. Those are scientific choices that Sahmel sets out and supports in detail in her report, and Plaintiffs offer no meaningful critique to support their assertion that these decisions render Sahmel’s testimony inadmissible.3 D. Plaintiffs’ Discussion of Non-Detect Results has Nothing to do With Sahmel’s Report or FRE 702 Plaintiffs’ final argument is difficult to follow. Plaintiffs’ hypothesis seems to be that Sahmel’s analysis does not account for the alleged “fact” that if a particular test does not detect asbestos, then asbestos allegedly could still be present, and that asbestos could allegedly be harmful. This theory has many problems. First and foremost, Sahmel’s exposure assessment is based on the remarkably conservative assumption that all cosmetic talc Ms. Hanson used was contaminated with asbestos at 0.1%. The issue of whether asbestos might be present in talc that nevertheless tested negative simply has nothing to do with Sahmel’s analysis. She is assuming a worst-case scenario of the presence of asbestos – always, in every bottle – not its absence. Second, Plaintiffs’ alleged fact is just an argument, and it is supported with citations that have nothing to do with talc. Indeed, Plaintiffs make no effort to connect them to talc or to Sahmel’s methodology or conclusions. Plaintiffs cite to an EPA discussion of testing materials at Superfund sites in which it is already known that asbestos is present, to discussions of vermiculite, and to studies involving zonolite attic insulation. Plaintiffs Brief at 11-12. The connection between these studies and Sahmel’s detailed analysis of studies relating to talc, and 3 Plaintiffs also claim that an assumption of “.12 f/cc asbestos in talc dust is nothing more than an assumption coupled with speculation since she has no idea what the actual fiber concentration of asbestos in the air would be for someone using asbestos-containing cosmetic talc.” (Plaintiffs’ Brief at 10.) They also claim that “Sahmel cites no scientific study or other evidence that experts in her field reasonably rely on for this assumption.” (Id.) Again, Plaintiffs can only make this argument by ignoring the entirety of Sahmel’s report, which contains extensive citations to the literature supporting her use of a hypothetical, worst-case assumption 0.1% asbestos contamination in talc, upon which the .12 f/cc figure is based. Report at 45 (“Using this upper bound estimate of 0.1% asbestos, the estimated airborne fiber concentration at the OSHA talc dust PEL would be 0.12 f/cc (120 f/cc x 0.1%).”); id. at 43 (discussing FDA’s use of 0.1% assumption and scientific bases for that assumption). Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 13 of 16 14 her calculations of Ms. Hanson’s worst-case exposure, is simply a mystery. And the connection to FRE 702 is even less clear. At the end of this section, Plaintiffs state that “Sahmel’s report failed to account for the significant asbestos exposure that occurs even when current testing protocols lead to a non-detect result.” Plaintiffs’ Brief at 13. But Plaintiffs do not reveal what non-detect results they are referring to, what level of exposure allegedly occurs in Cashmere Bouquet when asbestos is not detected, and how this alleged “fact” should have changed anything that Sahmel did. Certainly nothing in Plaintiffs’ section V resembles a meaningful argument for the exclusion of Sahmel’s testimony under FRE 702. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’ Motion to Exclude Testimony of Defense Expert Jennifer Sahmel, MPH, CIH, CSP. Respectfully submitted this 6th day of October, 2017. ALSTON & BIRD LLP /s/ Scott A. Elder, Esq. Scott A. Elder, Esq. Georgia Bar Number 665879 One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 (404) 881-7000 scott.elder@alston.com Office: (404) 881-7592 Fax: (404) 253-8580 FISHERBROYLES, LLP /s/ R. Bates Lovett__________ R. Bates Lovett, Esq. Georgia Bar Number 459568 35 Barnard Street, Suite 300 Savannah, Georgia 31401 Email: bates.lovett@fisherbroyles.com Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 14 of 16 15 Office: (912) 335-4467 Mobile: (912) 844-1346 Fax: (912) 651-8290 Attorneys for Defendant Cyprus Amax Minerals Company HAWKINS, PARNELL, THACKSTON & YOUNG, LLP s/ H. Lane Young H. Lane Young Georgia Bar No. 781950 Peter R. York Georgia Bar No. 781175 303 Peachtree Street, NE Suite 4000 Atlanta, GA 30308-3243 lyoung@hptylaw.com pyork@hptylaw.com Office: (404) 614-7400 Attorneys for Defendant Colgate-Palmolive Company Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 15 of 16 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION SHARON M. HANSON AND DOUGLAS B. HANSON. PLAINTIFF, VS. COLGATE-PALMOLIVE COMPANY; CYPRUS AMAX MINERALS COMPANY; And JOHN DOES NO. 1-15. DEFENDANTS. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:16-cv-00034-LGW-RSB CERTIFICATE OF SERVICE The undersigned hereby certifies that all parties were served with a copy of the foregoing DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO EXCLUDE TESTIMONY OF DEFENSE EXPERT, JENNIFER SAHMEL, MPH, CIH, CSP by filing the same with the Clerk of Court using the CM/ECF system which will automatically electronically mail notification of such filing to the following attorneys of record: Rob Buck, Esq. Kevin Paul, Esq. Lane Young, Esq. c/o The Buck Law Firm c/o Simon Greenstone Peter York, Esq. 1050 Crown Pointe Parkway 3232 McKinney Ave. Hawkins Parnell Thackston & Young Suite 940 Suite 610 303 Peachtree Street, NE, Suite 4000 Atlanta, GA 30338 Dallas, TX 75204 Atlanta, GA 30308 Attorneys for Plaintiffs Attorneys for Plaintiffs Attorneys for Colgate-Palmolive Submitted this 6th day of October, 2017. /s/ R. Bates Lovett, Esq.__________ R. Bates Lovett, Esq. Case 2:16-cv-00034-LGW-RSB Document 141 Filed 10/06/17 Page 16 of 16