Riegler v. Carlisle Cos.

• Docket Number: 2:20-cv-00752-RJS-CMR
• Decision Date: 23 March 2023
• Parties: KATHI A. RIEGLER, individually and as Personal Representative on behalf of the heirs of JOHN C. RIEGLER, deceased, Plaintiffs, v. CARLISLE COMPANIES, INCORPORATED; CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., f/k/a MOTION CONTROL INDUSTRIES, INC.; EATON CORPORATION; FORD MOTOR COMPANY; NAVISTAR, INC., individually and as successor-in-interest to INTERNATIONAL HARVESTER CORPORATION, Defendants.
• Court: U.S. District Court — District of Utah

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KATHI A. RIEGLER, individually and as Personal Representative on behalf of the heirs of JOHN C. RIEGLER, deceased, Plaintiffs, v. CARLISLE COMPANIES, INCORPORATED; CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., f/k/a MOTION CONTROL INDUSTRIES, INC.; EATON CORPORATION; FORD MOTOR COMPANY; NAVISTAR, INC., individually and as successor-in-interest to INTERNATIONAL HARVESTER CORPORATION, Defendants.

No. 2:20-cv-00752-RJS-CMR

United States District Court, D. Utah

March 23, 2023

Cecilia M. Romero, Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART FORD'S, EATON'S, AND NAVISTAR'S MOTIONS TO EXCLUDE AND GRANTING FORD'S MOTION FOR SUMMARY JUDGMENT

ROBERT J. SHELBY United States Chief District Judge

For five months, Decedent John C. Riegler worked at a service station and performed brake services as part of his duties. Decades later he was diagnosed with mesothelioma and brought this action against Defendants Carlisle Companies, Carlisle Industrial Brake & Friction, Eaton Corporation, Ford Motor Company, and Navistar. Plaintiff alleged Defendants' automotive-friction products exposed him to asbestos and caused his mesothelioma. Now before the court are three motions to exclude expert testimony and one motion for summary judgment.^[1] The court heard oral argument on March 7, 2023, and now resolves the motions.^[2]

BACKGROUND & PROCEDURAL HISTORY

Riegler's Brake Work

Riegler worked at a service station in Salt Lake City, Utah from September 1965 to January 1966.^[3]Riegler was a gas station attendant, but he also helped the mechanics with brake work.^[4] During the five months he worked at the service station, he estimated he did two brake inspections and two brake jobs each week.^[5]A brake job entailed removing and replacing brake shoes.^[6]

When Riegler did a brake inspection, he would put the vehicle on a lift so that the brake drum was at eye level.^[7] Then he would remove the “brake drum by tapping it with a hammer around the perimeter to break the drum loose.”^[8]The tapping caused “a lot of stuff,” like dust, to get in the air and fall at his feet.^[9] After inspecting the brake assembly Riegler would “blow off the drum” with an air hose and sweep up the dust.^[10]This caused dust to fly in the air Riegler breathed.^[11]

Riegler followed a similar process when he replaced brakes.^[12]After removing the brake drum, he would remove the brake pads, air hose out the brake assembly and drum, and reinstall the brakes.^[13]As with brake inspections removing and replacing brakes caused dust to get in the air Riegler breathed.^[14]Also, when he opened a box of new brakes, he would breathe in dust from the box.^[15]

While working, Riegler was near two mechanics who were also working on brakes.^[16]He estimated each mechanic did four to five brake inspections and four to five brake replacements each week.^[17]The mechanics used the same methods to inspect and replace brakes as Riegler.^[18]

Riegler did brake work on vehicles manufactured by Ford, Chrysler, General Motors, and International Harvester.^[19]He estimated he did brake jobs on ten to twenty International Harvester vehicles, but he could not give an estimate for the other manufacturers.^[20]He testified he worked “on a lot of” Fords.^[21]Riegler also inspected, removed, and replaced brake shoes manufactured by Eaton and Bendix.^[22]The parties dispute whether Riegler replaced brakes manufactured by Ford.^[23]

The Complaint

In 2019, Riegler was diagnosed with mesothelioma.^[24]On October 30, 2020, he and his spouse, Kathi A. Riegler, sued the Defendants, alleging their products exposed him to asbestos and caused his mesothelioma.^[25]They asserted six causes of action: negligence, breach of implied warranty, gross negligence, false representation, inadequate warning, and strict liability.^[26]They also requested punitive damages and damages for loss of consortium.^[27]

Riegler died from mesothelioma in March 2022.^[28]Kathi Riegler now prosecutes the case as Plaintiff on behalf of Riegler's heirs.^[29]

William M. Ewing, CIH

Plaintiff designated William M. Ewing, CIH as an expert. Ewing is an industrial hygienist.^[30] “Industrial hygiene is the field of identification, evaluation, and control of occupational and environmental health hazards.”^[31]In his expert report, Ewing cited published studies calculating the range of asbestos a person is exposed to when performing different brake tasks, such as blowing dust out of a brake drum, sweeping up brake dust, and unpacking brake shoes.^[32]From his review of these studies and Riegler's deposition testimony, Ewing reached the following conclusions:

• “It is likely Mr. Riegler's exposure when conducting brake jobs involving compressed air resulted in peak (short-term) exposures of 1-30 f/cc.^[33] His exposure when cleaning up after a brake job by sweeping was in the range of ^[34]

• “It is likely Mr. Riegler's exposure as a bystander to others performing brake jobs with compressed air was in the range of 0.1-5.0 f/cc.”^[35]

• The “best estimate for Mr. Riegler's exposure when handling asbestos containing brake shoes” is an “average airborne 30-minute asbestos concentration of 0.0860.368 f/cc when unpacking and repacking brake pads; and 0.021-0.126 when unpacking and repacking brake shoes.”^[36]

When deposed, Ewing confirmed that his review was limited to assessing “what [Riegler's] exposures are to asbestos, not necessarily which brands.”^[37]In other words, he did not “try and break out how much exposure [Riegler] had from working on a Ford vehicle versus a GM product or a Chrysler.”^[38] Dr. Brent C. Staggs

Plaintiff designated Dr. Brent C. Staggs as an expert to offer a causation opinion. Dr. Staggs is a physician and board-certified pathologist.^[39]He prepared an expert report detailing his views on the cause of Riegler's mesothelioma.^[40] Dr. Staggs testified he prepared his own report and then later reviewed Ewing's report.^[41]Dr. Staggs attached to his report a sworn affidavit,^[42]which was not prepared for this case but describes his “basic opinions on asbestos-related disease.”^[43]

In his affidavit, Dr. Staggs outlined “Principles of Asbestos Related Diseases.”^[44] He explained that the term “asbestos” describes “two families of naturally-occurring fibrous minerals, serpentine (chrysotile) and amphibole (actinolite, amosite, anthophyllite, crocidolite and tremolite).”^[45]He further explained, “The ability of all types of asbestos . . . to cause cancers and non-malignant disease is overwhelmingly accepted and agreed to by the medical and scientific community.”^[46]Dr. Staggs included a list of twenty-four publications to support this statement.^[47]He also stated that the “relationship between mesothelioma and exposure to asbestos is so well established in the scientific community, that mesothelioma is considered a ‘signal tumor' for asbestos exposure.”^[48]

Dr. Staggs stated it is his “opinion that mesothelioma and lung cancer are dose-response diseases that are caused by the cumulative exposures to asbestos that a person receives during their lifetime.”^[49]He defined “dose” as “the amount of asbestos inhaled over a given time period”^[50] and stated that “all doses (small and large) of asbestos contribute to the cumulative dose.”^[51]He defined “dose-response” to “mean that the more asbestos exposures someone has, the more likely it is that they will have a response (cancer) to the dose.”^[52]Dr. Staggs concluded his affidavit by stating he “evaluate[s] the relative significance of asbestos exposures on a case by case basis.”^[53]

In his expert report, Dr. Staggs stated he was asked to give his opinion on whether Riegler's “disease was caused by exposure to asbestos.”^[54] He then explained Riegler's medical history and mesothelioma diagnosis.^[55]He also explained the radiology reports, pathology reports, and pathology materials he relied on.^[56]Based on these materials, Dr. Staggs diagnosed Riegler with “primary pleural malignant mesothelioma, epithelioid type.”^[57] Dr. Staggs also included a summary of Riegler's “asbestos exposure history.”^[58]He first described the service station work Riegler did, as recited above.^[59]He stated Riegler “estimated conducting approximately forty (40) brake jobs on cars and trucks manufactured by Chrysler, Ford, GM, and International. Each brake job would require removing and installing brake shoes on two or four of the vehicle's tires.”^[60]The report then stated Riegler “recalled removing and replacing brakes from Bendix, Eaton, and original equipment manufacturer (OEM) brake shoes.”^[61]Dr. Staggs explained he reviewed Riegler's deposition testimony and Riegler “was able to remember many of the specific brand names of products that were used and the relative frequency.”^[62]

Dr. Staggs explained that he does “not state that any contributor to the cumulative dose, no matter how small, is a significant factor to the development of mesothelioma.”^[63]Rather, he “review[s], evaluate[s], and consider[s] the information available to [him] about an individual's identified exposures to asbestos, and only after that review will [he] consider causation and attribution of the asbestos exposures.”^[64] Dr. Staggs ended with his opinion: “Mr. Riegler had significant exposures to asbestos from his frequent and proximate work with and around asbestos containing products, over his working lifetime. It is my opinion to a reasonable degree of medical certainty that Mr. Riegler has a malignant mesothelioma that was caused by these identified and substantial exposures to asbestos.”^[65]In his report, Dr. Staggs did not assess how much asbestos Riegler was exposed to from products manufactured by each individual Defendant.^[66]

During his deposition, Dr. Staggs explained his...