Phelps v. CBS Corp.

Linda F. Phelps, as Administratrix of the Estate of John J. Grimes, Plaintiff, v. CBS Corporation f/k/a/ Viacom, Inc., et al., Defendants.

17-cv-8361 (AJN)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 30, 2020

MEMORANDUM OPINION & ORDER

ALISON J. NATHAN, District Judge:

On October 3, 2017, John Grimes and his domestic partner Linda Phelps filed two lawsuits in New York state court against two different groups of defendants, alleging that Mr. Grimes developed mesothelioma as a result of exposure to Defendants' asbestos-containing products while working as a coppersmith apprentice at the Brooklyn Navy Yard. Presently before the Court are Defendant Crane Co.'s three Daubert motions to exclude or limit expert testimony and Crane Co.'s motion for summary judgment. For the following reasons, the Court grants in part and denies in part the Daubert motions and denies the motion for summary judgment.

I. Background

A. Factual Background

John Grimes, now deceased, worked at the Brooklyn Navy Yard from October 1961 to January 1963 as an apprentice coppersmith. Dkt. No. 142 ("Crane's 56.1 Resp.") ¶¶ 1, 3. During that time, Grimes worked on a land-based shop and on warships. Id. ¶ 4. As an apprentice coppersmith, Grimes worked on copper tubing and pipes, and one of his recurring duties in the coppersmiths' shop at the shipyard was stripping insulation from the exterior of old copper tubing and pipes. Dkt. No. 132 ("Pl.'s 56.1 Resp.") ¶ 8. He also worked with master coppersmiths to fabricate new piping or tubing for ships and to repair and refurbish piping and tubing that had been removed. Id. ¶ 9.

In late 2016 and early 2017, Grimes was deposed, and in his deposition he testified as to his experiences that the Brooklyn Navy Yard. Id. ¶ 7. He testified that he believed he was exposed to asbestos while working in the shop and on warships. Id. ¶ 7. Grimes did not recall how much of his work at the Brooklyn Navy Yard took place in the shop and how much took place on the warships. Id. ¶ 11. He also testified that he remembered working on the USS Constellation, which was still under construction, among other ships that were docked at the Navy Yard but whose names he could not recall; many of these ships were undergoing rehabilitation. Id. ¶ 7; see also Crane Co.'s 56.1 Resp. ¶ 19. According to Grimes, on the USS Constellation, he observed tradesmen working on pumps and valves and working on and in boilers. Pl.'s 56.1 Resp. ¶ 9. The parties disagree about the precise understanding of Grimes's testimony with respect to his work on the warships. Plaintiff avers that Grimes testified that his work on the warships included work in boiler rooms or engine rooms, though he was not sure what the rooms were called. Id. ¶ 9. Crane Co., meanwhile, characterizes his testimony as representing that Grimes was "guess[ing]" that he worked on boiler rooms or engine rooms. Id. ¶ 9; see also Crane Co.'s 56.1 Resp. ¶ 20. While his job at the Brooklyn Navy Yard involved working with copper tubing and pipe, Grimes did not recall what material flowed through the pipes once they had been installed on the ships. Pl.'s 56.1 Resp. ¶ 12. He also could not describe the process by which valves were removed or installed. Id. ¶ 22.

Grimes testified that he worked on the USS Constellation "many times," though he refused to provide an exact number and instead noted that it was probably more than ten days. Id. ¶ 10; see also Dkt. No. 96, Ex. D at 144:4-144:7; 144:20. The parties disagree about where, exactly, Grimes worked while on the ship. See Crane Co.'s 56.1 Resp. ¶¶ 9, 15.

Grimes also testified that while on board the USS Constellation, he saw the name "Crane" in association with some of the bigger valves on the ship, though he could not recall the manufacturers of all of the valves he saw while on the ship, including some of the smaller valves. Pl.'s 56.1 Resp. ¶ 18-19; Crane Co.'s 56.1 Resp. ¶¶ 13-14. In his deposition, Grimes was asked whether he could recall the frequency with which he saw valves installed on the USS Constellation, and he could not recall. Pl.'s 56.1 Resp. ¶ 21. Grimes initially testified that he saw Crane valves on warships other than the USS Constellation, though he subsequently noted that he "may have" seen Crane valves on other warships; of these, Grimes testified that he may have seen valves that were insulated. Id. ¶ 23; Crane Co.'s 56.1 Resp. ¶¶ 23, 29-31.

In his testimony, Grimes noted that he never personally worked on any valves. Pl.'s 56.1 Resp. ¶ 15. He testified that he saw others working on pumps, valves, and catapults in the boiler system, and he further testified that the people he saw working with the valves may have been pipefitters. Id. ¶ 17; Crane Co.'s 56.1 Resp. ¶ 10-11. Grimes testified that he observed gaskets put on the face of the valves during installation and that he observed gaskets when valves were disconnected or removed, though he could not recall the gaskets' color or texture, what the gaskets' packaging looked like, or who supplied the gaskets to the ship. Crane Co.'s 56.1 Resp. ¶ 12; Pl.'s 56.1 Resp. ¶ 25. The parties disagree as to parts of Grimes's testimony regarding whether he could see the inside of the valves; Crane Co. argues that Grimes never testified that he "encountered or was around others working on internal valve components," while Plaintiffargues that the fact that Grimes testified he could see inside the valves means that he was around internal valve components. Pl.'s 56.1 Resp. ¶ 29; see also Crane Co.'s 56.1 Resp. ¶ 24. Grimes also testified that some of the valves he saw being removed from insulated pipelines were partially insulated with external insulation materials. Pl.'s 56.1 Resp. ¶ 27. The parties agree that Grimes specifically recalled having observed valves being removed from a boiler. Crane Co.'s 56.1 Resp. ¶ 27.

In his testimony, Grimes remarked that when he worked on the warships, "dust came from everywhere." Pl.'s 56.1 Resp. ¶ 30; see also Crane Co.'s 56.1 Resp. ¶¶ 16-17, 32-34. The parties disagree about whether Grimes's testimony addressed the source of the dust and the extent to which installation and removal of the valves affected the conditions. Crane Co.'s 56.1 Resp. ¶¶ 33-34. Nonetheless, the Brooklyn Navy Yard and the U.S. Navy neither provided him with any breathing protection nor warned him about asbestos-related hazards. Pl.'s 56.1 Resp. ¶ 31. The conditions aboard the ship were such, according to Grimes, that "[s]ometimes when [he] went home at night and [he] would spit out it was like black, black - blackish gook." Crane Co.'s 56.1 Resp. ¶ 18. According to Grimes, when he was working at the Navy Yard, he did not know whether any gaskets that were used with valves around which he worked contained asbestos. Pl.'s 56.1 Resp. ¶ 26.

B. Procedural Background

Grimes and his domestic partner, Linda Phelps, commenced this action against Crane Co. and other Defendants in the Supreme Court of New York, County of New York, on October 3, 2017. Pl.'s 56.1 Resp. ¶ 1; see also Dkt. No. 1, Ex. A. This is one of two parallel actions that Grimes filed in New York state court. Id. ¶ 2. Both actions relate to his alleged exposure to asbestos and his subsequent development of mesothelioma. Id. On October 30, 2017, DefendantFoster Wheeler LLC removed Plaintiff's state court action under 28 U.S.C. ¶ 1442. See Dkt. No. 1. Crane Co. then filed a Notice of Joinder of Removal on November 17, 2017, Dkt. No. 6, which the Court denied on June 21, 2018, Dkt. No. 29. Grimes died in December 2017, see Dkt. No. 48-1, leaving Plaintiff Linda Phelps, as administratrix of Grimes's estate, as the sole plaintiff in this action. On March 19, 2019, Plaintiff amended the Complaint. Dkt. No. 56. Crane Co. answered on April 2, 2019, Dkt. No. 59, bringing cross-claims against the other defendants. Expert discovery closed on December 6, 2019, see Dkt. No. 78. On March 18, 2020, Plaintiff notified the Court that her Naval Engineering Expert, Captain William Lowell, died, Dkt. No. 112, and on March 31, 2020, she substituted Captain Bruce Woodruff as her new naval expert, see Dkt. Nos. 116, 118.

Crane Co. has moved for summary judgment. Dkt. No. 95. And at the same time it filed three Daubert motions to exclude the testimony of Plaintiff's expert witnesses Gary Crakes, Dkt. No. 99, Dr. David Zhang, Dkt. No. 102, and Steven Paskal, Dkt. No. 105. The motions are fully briefed. See Dkt. Nos. 120, 122, 130, 134, 135, 137, 139, 141.

II. Legal Standards

A. Expert Testimony

Federal Rule of Evidence 702 governs the admissibility of expert testimony. That rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(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.

Fed. R. Evid. 702.

Under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), district courts analyzing the admissibility of expert testimony under this rule have a "gatekeeper function." Restivo v. Hessemann, 846 F.3d 547, 575 (2d Cir. 2017). Specifically, courts have "an obligation to determine whether the expert's specialized knowledge will assist the trier of fact, i.e., will be not only relevant, but reliable." United States v. Romano, 794 F.3d 317, 330 (2d Cir. 2015). The court should "focus on the principles and methodology employed by the expert" and exclude the expert's testimony if those principles and methodology are unreliable. In re Pfizer Inc. Sec. Litig., 819 F.3d 642, 662 (2d Cir. 2016) (citation omitted).

Although it establishes a "gatekeeper" function for expert testimony, the Daubert test is...