Papineau v. Brake Supply Co.

MEMORANDUM OPINION AND ORDER

Benjamin Beaton, District Judge.

After doctors diagnosed Jack Papineau with mesothelioma, he and his wife sued Brake Supply and several manufacturers of products that allegedly contained asbestos. The parties have engaged in vigorous motion practice and discovery, resulting in the dismissal of some parties and the addition of others. Now Brake Supply seeks summary judgment against the Papineaus on all of their claims on the ground that the Papineaus lack evidence that Mr. Papineau encountered asbestos from Brake Supply's products, or that any alleged encounters were a substantial factor in causing his illness. Brake Supply also contends that the Kentucky Middleman Statute, KRS 411.340, exempts it from liability as a distributer, and that the Plaintiffs cannot demonstrate that Brake Supply was grossly negligent-essential for their punitive-damages claim.

Inextricably related to the summary judgment question are several other motions from both sides asking the Court to exclude or limit the testimony of various experts. Resolving these motions will define the contours of the evidence bearing on summary judgment.

The rules of evidence and tort liability dictate that the testimony of some experts should be limited. But the law provides no basis to exclude the entirety of any witness's proposed expert testimony. Given the substantial and conflicting testimony that each side marshals, the Court agrees with the Papineaus that genuine issues of material fact remain for resolution by a jury- particularly regarding causation and liability under the Middleman Statute, if not gross negligence under Kentucky law. The Court therefore denies in part and grants in part Brake Supply's motion for summary judgment (DN 337), denies in part the motion to exclude the expert testimony of Steven Paskal (DN 346), and-based in large part on the parties' concessions during argument- denies the remaining motions in limine (DNs 341, 342, 343, 344, 345, 347, 348, 353), albeit without prejudice to revisiting these objections at trial.

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RECORD EVIDENCE

Apparently undisputed evidence makes several aspects of this controversy clear at this stage of the litigation. Jack Papineau worked for Smith Coal as a Class C oiler mechanic for approximately nine years (1984-93) at three different surface mine sites in Western Kentucky. Complaint (DN 1) ¶ 12; Papineau Dep. (DN 337-2) at 29:15-23, 32:11-33:24. His responsibilities included servicing mining equipment and assisting mechanics performing more complex work- including brake jobs-on mining equipment. Papineau Dep. at 33:1-19, 44:7-10. Regarding his brake work specifically, Mr. Papineau serviced many types of large trucks and equipment-Terex scrapers, Mack service trucks, and Euclid, LeTourneau, and Caterpillar haul trucks. Id. at 40:21- 51:14.

Evidence shows that Mr. Papineau performed more than 200 brake jobs during his tenure with Smith Coal. Id. at 59:3-10, 75:11-17, 84:10-85:1. After removing the equipment's wheel, Mr. Papineau would remove the brake drum, clean it with compressed air and an electric grinder, and then remove the brake shoe using a hammer or hydraulics. Id. at 58:3-15, 61:3-16, 64:7- 65:17. The brake shoes are huge, curved pieces lined with friction pads measuring about 8x24”. Id. at 67:11-22. Next he would attach a new shoe and reinstall the whole brake on the equipment. Id. at 66:19-22. Each step of this process, Plaintiffs insist and Brake Supply appears to concede, disturbed brake dust that Mr. Papineau breathed and touched. Id. at 60:2-7, 61:8-20, 62:12-25, 65:1-25.

How much dust? The parties dispute this, along with most other factual issues. Each side offers its own industrial hygienist to testify about whether Mr. Papineau's occupational exposure fell within an acceptable range.

Another important question is whether these friction products contained asbestos, and whether Smith Coal obtained them from Brake Supply or only from other manufacturers or distributors during Mr. Papineau's tenure. Brake Supply is known as a “rebuilder” of used brake shoes. Berkley Dep. (DN 337-5) at 118:1-6. Brake Supply would strip off brake linings from used brake shoes, refurbish the shoes, and install new brake linings before selling these products to companies like Smith Coal for installation on their trucks. Id. at 118:1-21. Brake Supply acquired these materials from other manufacturers, which may or may not have used asbestos in their products. The industry moved away from asbestos-containing friction products at some point during Mr. Papineau's employment, but the parties appear to disagree about when that change happened or how it would have affected Mr. Papineau's asbestos exposure. See Ferguson Dep. (DN 337-8) at 64:8-23.

Even assuming Brake Supply distributed some asbestos-containing friction products during Mr. Papineau's tenure, this would not settle the question whether Mr. Papineau worked with asbestos-containing products supplied by Brake Supply. Mr. Papineau could not recall using brakes supplied by any company other than Brake Supply. Papineau Dep. 2 (DN 337-3) at 36:13- 20. But business records and testimony from others-warehouse employees, salesmen, and supervisors-provide some evidence he did and some evidence he didn't work with asbestos-containing products from Brake Supply. See Motion for Summary Judgment (“MSJ”) (337-1)at

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6-12 (describing evidence); Summary Judgment Response (DN 355) at 4-7 (same); Titus Dep. (DN 337-9) at 25:1-12 (Smith Coal primarily ordered hydraulics from Brake Supply); Rice Dep. (DN 355-6) at 50:13-18 (Brake Supply refurbished most of Smith Coal's brakes of the type Mr. Papineau used); Snow Dep. (DN 355-7) at 78:24-79:22 (most of the company's brake products came from Brake Supply); Vandiver Dep. (DN 355-9) at 55:10-56:25, 116:14-23 (supervisor's testimony that he and Mr. Papineau used Brake Supply brakes for many of their jobs).

Still another question is whether Mr. Papineau's exposures to asbestos-containing friction products (assuming they came from Brake Supply) were a substantial factor contributing to his illness. Each side presents a slate of experts-toxicologists, hygienists, and medical doctors-in support of its views on the source, type, and cause of Mr. Papineau's mesothelioma. And each side objects to the testimony the other side's experts propose to offer.

MOTIONS TO EXCLUDE EXPERT TESTIMONY

Whether these experts' testimony is admissible determines the scope of the record before the Court at the summary-judgment stage. Federal Rule of Evidence 702 allows opinion testimony by “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education” if the testimony satisfies four conditions connecting the expertise and the litigation:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue

(b) the testimony is based on sufficient facts or data

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case

The Supreme Court has interpreted this rule to assign trial judges a “gatekeeper” function in determining whether proposed expert testimony is sufficiently reliable and relevant for the jury to consider. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The Sixth Circuit, “[p]arsing the language of the Rule, ” has recognized “that a proposed expert's opinion is admissible, at the discretion of the trial court, if the opinion satisfies three requirements”- qualification, relevance, and reliability. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008).

An expert is qualified by “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. The expert's testimony is relevant when it will assist the trier of fact in understanding the evidence or determining a material fact in question. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993). And proposed testimony is reliable when it is grounded in valid methods and procedures that support its trustworthiness, Id. at 590 n.9, leaving trial courts “considerable leeway in deciding … how to go about determining whether particular expert testimony is reliable, ” Kumho Tire, 526 U.S. at 152.

The trial court's gatekeeping role “is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012). Alleged flaws in the accuracy of scientific results, when produced by generally reliable scientific methods, is the proper subject of cross-examination, not exclusion. In

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re Scrap Metal, 527 F.3d at 530 (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11^th Cir. 2003)). Nor can “a district court [] exclude an expert because it believes the expert lacks personal credibility:” questions about “an expert's believability or persuasiveness” are “reserved for the trier of fact.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n.7 (11th Cir. 2005). As long as the Daubert analysis is met, the Court should not exclude expert opinions that have “a reasonable factual basis.” United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993). “Rather, it is up to opposing counsel to inquire into the expert's factual basis.” Id.

I. Medical-Causation Experts

1. Dr. Arthur L. Frank

Dr. Frank is a medical doctor and professor who...