In Re: Asbestos Products Liability Litigation (no. Iv)

• Decision Date: 10 February 2011
• Docket Number: Transferor Court: N.D.Georgia 1:08-cv-02022-ODE,E.D. PA Civil Action No. 09-cv-75120
• Parties: IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. IV) EVA D. BREEDLOVE, et al. v. CSX TRANSPORTATION, INC., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. IV)

EVA D. BREEDLOVE, et al.

v.CSX TRANSPORTATION, INC., et al.

E.D. PA Civil Action No. 09-cv-75120

Transferor Court: N.D.Georgia 1:08-cv-02022-ODE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: February 10, 2011

Consolidated Under MDL DOCKET NO. 875

ORDER

AND NOW, this 8^th day of February, 2011, upon consideration of the pending motions, and for the reasons stated in the attached memorandum, it is hereby ORDERED that:

(1) Defendant CSX Transportation's Motion in Limine To Exclude Testimony of Arthur Frank [Docket Entry No. 46] is DENIED.

(2) Defendant CSX Transportation's Motion for Protective Order [Doc. 54] is GRANTED IN PART, DENIED IN PART. Plaintiff may question CSX Transportation's corporate representative about asbestos-related claims made by nonparties against CSX Transportation that have been used in litigation or otherwise released to the public.

BY THE COURT:

M. FAITH ANGELL

UNITED STATES MAGISTRATE JUDGE

MEMORANDUM

February 8, 2011

M. Faith Angell

United States Magistrate Judge

Plaintiff Eva Breedlove, Executrix of the Estate of William Breedlove, brings this action under Georgia's premises liability law. She alleges that her husband, William Breedlove, was harmfully exposed to asbestos in 1962 through 1995 when he visited CSX Transportation's Tilford and Waycross properties for the purpose of selling insurance to CSX Transportation's employees. Mr. Breedlove was diagnosed with mesothelioma in February 2008, he died six months later in August 2008.¹

Presently before this Court are two motions filed by Defendant CSX Transportation: a motion in limine to exclude the expert testimony of Dr. Arthur Frank, and a motion for a protective order. For the reasons which follow, I will deny the motion to exclude Dr. Frank's expert testimony and will grant in part the motion for a protective order.

A. CSX Transportation's Motion to Exclude Dr. Frank's Testimony.

Defendant CSX Transportation moves this Court to exclude all testimony from Plaintiff's expert, Dr. Arthur Frank, arguing that his opinions in this matter lack a sufficient factual basis and should be excluded under a Daubert inquiry. CSX Transportation's Motion to Exclude Dr. Frank's Testimony [Doc. 46] at pp. 3, 6. The issue, as defined CSX Transportation, is "whether Dr. Frank knows enough about the specific exposure allegations in this case to offer reliable causation testimony." CSX Transportation's Reply Brief [Doc. 50] at p. 6.² According to CSX Transportation,

"[I]n a case with novel exposure allegations and limited fact witness information, Plaintiff's need for a causation expert to independently investigate, analyze, and offer at least some approximation of the claimed exposures is particularly important. CSXT established in its motion [to exclude] that Dr. Frank, however, did almost nothing on his own to investigate the specifics of this case and, as a result, knows almost nothing about the specifics of this case. [...] Dr. Frank's reasoning is unreliable conjecture. [...] His failure to approximate-or even consider-the amount of Mr. Breedlove's actual exposure (at CSXT, Georgia Power or anywhere else) in this case reflects a cavalier disregard for a key tenet of occupational medicine and toxic tort evidence."

Id. at pp. 7-8.³

In addition to qualifying as an expert under Rule 702 of the Federal Rules of Evidence, an expert witness must satisfy the standards set forth in Daubert⁴ that the expert's testimony (1) must be based on sufficient facts and data; (2) must be the product of a reliable methodology; and (3) must demonstrate a relevant connection between that methodology and the facts of the case. Expert testimony which is based on assumptions lacking any factual foundation in the record may not be admitted. Jaasma v. Shell Oil Company, 412 F.3d 501, 513 (3d Cir. 2005).

CSX Transportation argues that "Dr. Frank's causation opinion is inextricably linked to his discredited belief that any asbestos exposure is a substantial factor in causing disease." CSX Transportation's Reply Brief at p. 8. According to CSX Transportation, Dr. Frank's methodology is "based on the assumption-not grounded in mainstream science-that any exposure automatically contributes substantially to the onset of disease. [...] Dr. Frank, however, has espoused this theory for years and his testimony has been excluded and criticized for this exact reason." Id.

Dr. Frank's expert testimony has been permitted, over objection by a defendant, in at least one other MDL case before this Court. See Kirkland v. Ford Motor Co., 09-74077: Doc. 65 [December 1, 2010 Order of the Honorable Eduardo C. Robreno]. In addition, when faced with a Daubert motion to exclude expert testimony (from Dr. John C. Maddox) that "every exposure to asbestos above background levels contributes to cause mesothelioma, " Judge Robreno has permitted expert testimony on the "every exposure" theory of causation. Schumacher v. Amtico, 10-01627: Doc 143 [November 2, 2010 Order of the Honorable Eduardo C. Robreno] at p. 2 n.1.

In denying the motion to exclude Dr. Maddox' expert testimony, Judge Robreno noted: "there is a bona fide debate within the scientific community regarding what the threshold level is, and indeed, whether a numeric threshold can be ascertained at all. Simply, Dr. Maddox takes one position, and Defendants' experts take another." Id. at p. 4.

I find this analysis equally applicable to Defendant CSX Transportation's criticism of Dr. Frank's methodology, and adopt it here.

CSX Transportation contends that Dr. Frank "made almost no effort to assess the unusual exposure allegations in this case. As a result, he knows almost nothing about Mr. Breedlove's interaction with or possible exposure to ACMs at the railroad." CSX Transportation's Reply Brief at p. 12. According to CSX Transportation,

"In the case at hand, [Dr.] Frank has not conducted any independent investigation of the facts. He has not even bothered to read Plaintiff's deposition. Rather, as laid out above, he bases his opinions on summaries prepared by Plaintiff's counsel. He made no effort to verify the information in these summaries. Instead, in his own words, it is his 'habit to believe Plaintiff's attorneys...' (Frank Dep. at 26.) Third Circuit precedent makes clear that this kind of blind faith is not a sufficient ground for proffering an expert opinion."

CSX Transportation's Motion to Exclude Dr. Frank's Testimony at pp. 7-8.

The Third Circuit has held that "some factual basis" for an expert's testimony is sufficient to meet the "foundational requirement" for admissibility of expert testimony under the Federal Rules of Evidence. Stecyk v. Bell Helicopter Textron, 295 F.3d 408, 414, 415 n.3 (3d Cir. 2002)(emphasis in original).

An expert is not required to base his or her opinion on independent data collection or field research. Rather, the question is whether the expert's data is of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon a subject, and whether there are good grounds to rely on this data to draw the conclusion reached by the expert. Jaasma, 412 F.3d at 514 (3d Cir. 2005).

Here, the record reflects a factual foundation sufficient to support Dr. Frank's opinion that Mr. Breedlove's mesothelioma was caused by exposure to asbestos at CSX Transportation's facilities. At deposition, Dr. Frank testified that he relied on a summary of Mr. Breedlove's asbestos exposure and excerpts from Mr. Breedlove's deposition, both of which were prepared by Plaintiff's Counsel. CSX Transportation's Motion to Exclude Dr. Frank's Testimony: Attached Exhibit, February 5, 2010 Frank Deposition [Doc. 46-2] at pp. 7-11, 26. Asbestos exposure histories and direct testimony from the plaintiff are normally relied upon by expert witnesses opining as to causation. The fact that the exposure summary and excepts from Mr. Breedlove's deposition were prepared by Plaintiff's Counsel does not make them inherently suspect. Defendant CSX Transportation does not assert that the summaries are inaccurate, incomplete or biased. I have reviewed the exposure summary and the deposition excerpts and find that they are consistent with Mr. Breedlove's deposition testimony. Because there is factual foundation in the record to support Dr. Frank's causation opinion, I find that it is meets the foundational requirements for admissibility.

CSX Transportation may highlight any deficiencies in Dr. Frank's preparation and testimony during appropriate cross-examination. See Stecyk, 295 F.3d at 414-15 (3d Cir. 2002)("Once [Defendant's] expert met the foundational requirements for admissibility, theburden shifted to plaintiffs to explore any deficiencies in the expert's sources. A party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination.").

B. CSX Transportation's Motion for a Protective Order.

CSX Transportation has filed a motion for a protective order seeking to "limit the scope of a corporate representative deposition that Plaintiff desires to take." In the Rule 30(b)(6) deposition notice, Plaintiff seeks to explore three topics, including "whether or not any of the employees listed on Exhibit A gave notice to CSX or its predecessors, in any form, that they claim to have an asbestos-related disease arising from their exposure to asbestos while working for CSX." CSX Transportation's Motion for Protective Order: Exhibit "E" [Doc. 54-6]. The individuals listed in Exhibit A are former insurance customers of William Breedlove who are/were employed at CSX Transportation.

CSX Transportation argues that Plaintiff seeks "confidential medical information from it which infringes on the privacy rights of over one hundred non-parties, and that disclosure of the requested medical information could...