Rockman v. Union Carbide Corp.

266 F.Supp.3d 839

Jeffrey ROCKMAN & Sonja Rockman, Plaintiffs,

v.UNION CARBIDE CORP., et al., Defendants.

Civil Action No.: RDB–16–1169

United States District Court, D. Maryland.

Signed July 17, 2017

Armand J. Volta, Jr., Bruce Craig Hill, David L. Palmer, Patrick Alexander Ciociola, Matthew Ira Blaustein, Law Office of Peter G. Angelos PC, Baltimore, MD, for Plaintiffs.

Peter Woodward Sheehan, Danielle Grilli Marcus, Whiteford Taylor and Preston LLP, Joel D. Newport, Moore and Jackson LLC, Douglas B. Pfeiffer, Lynn C. Schlie, Robin Silver, Miles and Stockbridge PC, Baltimore, MD, Bruce T. Bishop, Eric D. Cook, L. Lucy Brandon, Wilcox and Savage PC, Norfolk, VA, Andy C.S. Efaw, James E. Hooper, Wheeler Trigg O'Donnell LLP, Denver, CO, Cary I. Schachter, Schachter Harris LLP, Irving, TX, J. Paul Davidson, Sedgwick LLP, Dallas, TX, for Defendants.

Kaiser Gypsum Company, Inc., pro se.

MEMORANDUM OPINION

Richard D. Bennett, United States District JudgePlaintiff Jeffrey Rockman ("Plaintiff" or "Mr. Rockman") is a prominent Maryland lawyer, who was diagnosed with peritoneal mesothelioma¹ on October 28, 2014. Prior to his illness, Mr. Rockman was an active partner in a Towson, Maryland law firm. Mr. Rockman has testified that he never worked with asbestos or used any asbestos-containing product. However, in this case he attributes his mesothelioma to "bystander" asbestos exposure during three home repair projects in 1965, 1973, and 1976, although those projects spanned no more than several weeks in total, where workmen allegedly used a Georgia–Pacific, LLC ("Georgia–Pacific") "Ready Mix" joint compound that contained Calidria chrysotile asbestos supplied by Union Carbide Corporation ("Union Carbide"). Accordingly, Mr. Rockman and his wife, Sonja Rockman, (collectively "Plaintiffs" or "the Rockmans") have now brought this action against Union Carbide and Georgia–Pacific.

This action was initially filed in the Circuit Court for Baltimore City, Maryland, but Union Carbide has removed the case to this Court.² Via Order and Judgment dated June 22, 2017 (ECF Nos. 183 & 184), this Court has previously granted Defendants' unopposed motions for summary judgment as to Mr. Rockman's claims of Breach of Warranty (Count Two), Fraud (Count Four), Conspiracy (Count Five), and Market Share Liability (Count Six); any aiding and abetting claim against Georgia–Pacific; any claim based on Mr. Rockman's earlier-diagnosed kidney cancer ; and the Rockmans' request for punitive damages. Still pending before this Court are Union Carbide's Motion for Summary Judgment (ECF No. 156) and Georgia–Pacific's Motion for Summary Judgment (ECF No. 159) with respect to the three remaining claims; alleging Strict Liability (Count One), Negligence (Count Three), and Loss of Consortium (Count Seven). Also still pending are Georgia–Pacific's Motion to Exclude Specific Causation Opinions of Plaintiffs' Experts Drs. Frank, Abraham, and Brody (ECF No. 161) and Union Carbide's Daubert Motion to Preclude Testimony Regarding Calidria Chrysotile or that "Each and Every" Exposure to a Product Contributes to the Development of Peritoneal Mesothelioma (ECF No. 162).

This Court conducted a hearing on the pending motions on July 6, 2017. See Local Rule 105.6 (D. Md. 2016). For the reasons stated herein, Defendants' Motions to Exclude Expert Testimony (ECF Nos. 161 & 162) are both GRANTED. The "specific causation" opinions of Plaintiffs' experts Dr. Jerrold Abraham and Dr. Arthur Frank that Mr. Rockman's alleged exposures in 1965, 1973, and 1976 to Union Carbide Calidria chrysotile asbestos contained in Georgia–Pacific's "Ready Mix" joint compound "caused" or were a "substantial factor" in his developing peritoneal mesothelioma are excluded. Additionally, any testimony by Drs. Abraham or Frank or by Plaintiffs' expert Dr. Arnold Brody³ based on their underlying theory that "each and every" exposure to asbestos "cumulates" and should therefore be considered a cause of injury, regardless of the type of mesothelioma, the exposure "dose," or the type of asbestos, is also excluded. Their opinions fail to satisfy Rule 702 of the Federal Rules of Evidence or the factors for the admissibility of expert testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 592–93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and recently confirmed by the United States Court of Appeals for the Fourth Circuit in Bresler v. Wilmington Trust Co. , 855 F.3d 178, 195 (4th Cir. 2017). There is simply insufficient data to support their theory that any exposure to asbestos, no matter how brief, and regardless of the type of asbestos, should be considered a "substantial factor" in Mr. Rockman's developing peritoneal mesothelioma some thirty-eight years after his last alleged contact with any asbestos-containing product.

Plaintiffs' counsel acknowledged at this Court's July 6, 2017 hearing that the Plaintiffs cannot survive summary judgment without the causation testimony of their experts. Accordingly, Defendants' Motions for Summary Judgment (ECF Nos. 156 & 159) are also GRANTED as to the Rockmans' three remaining claims; alleging Strict Liability (Count One), Negligence (Count Three), and Loss of Consortium (Count Seven). Even if this Court were not to exclude the causation opinions of Plaintiffs' experts, summary judgment would still be granted for the Defendants for the reasons discussed herein. Therefore, Judgment shall be entered for Defendants as to the remaining Counts One, Three, and Seven against them.

BACKGROUND

In ruling on a motion for summary judgment, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. See Libertarian Party of Va. v. Judd , 718 F.3d 308, 312 (4th Cir. 2013). The facts of this case have been previously set forth in this Court's Memorandum Opinion of June 22, 2017 (ECF No. 183). Mr. Rockman has testified that he was exposed to an asbestos-containing product only three times in his life: during a repair to the bedroom ceiling of his Brooklyn, New York apartment in the summer of 1965, repairs to the foyer and living room walls of his Baltimore, Maryland apartment in June of 1973, and a repair to the living room ceiling and dining room walls of his prior home on Broadmoor Road in Baltimore, Maryland in early 1976. Rockman Dep., pp. 36–88; 111–125; 133–160, ECF No. 174–2. Mr. Rockman did not perform those home repairs himself, but rather hired "workmen" or "handymen." Id. Mr. Rockman contends that Georgia–Pacific "Ready Mix" joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which Mr. Rockman was exposed. Id.

From 1963 to 1985, Union Carbide Corporation ("Union Carbide") mined, milled, manufactured and marketed to other asbestos product manufacturers a particular chrysotile asbestos product under the trade name Calidria asbestos. See Union Carbide's Answers to Plaintiffs' First Set of Interrogatories and Request for Production of Documents in the United States District Court for the District of South Carolina, ECF No. 174–3. There is no dispute that Georgia–Pacific purchased Calidria for use in its joint compound products in approximately 1970. Mr. Rockman concedes that he was not exposed to Union Carbide Calidria prior to 1970, during the repair to his New York apartment in the summer of 1965.

Plaintiffs have submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank, and Dr. Arnold Brody. Drs. Abraham and Frank have both specifically concluded that Mr. Rockman's alleged exposures to Union Carbide Calidria chrysotile asbestos contained in Georgia–Pacific's Ready Mix joint compound caused him to develop peritoneal mesothelioma. See Abraham Report, ECF No. 162–38; Frank Report, ECF No. 162–37. Dr. Brody has offered no such "specific causation" opinion, but generally supports the theory that "each and every" exposure to asbestos "cumulates" and should therefore be considered a cause of injury, regardless of the type of mesothelioma, the exposure "dose," or the type of asbestos, a theory on which Drs. Abraham and Frank also rely. See, e.g. , Brody Dep., p. 28, ECF No. 161–9. Defendants Georgia–Pacific and Union Carbide have now moved under Rules 403 and 702 of the Federal Rules of Evidence and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 592–93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to exclude the specific causation testimony of Drs. Abraham and Frank with respect to Union Carbide Calidria chrysotile asbestos and Georgia–Pacific's Ready Mix joint compound, as well as any testimony based on the "each and every exposure" causation theory. See Mots., ECF Nos. 161 & 162. Defendants have additionally moved for summary judgment on all remaining claims against them. See Mots., ECF Nos. 156 & 159.

STANDARDS OF REVIEW

I. Motions to Exclude Expert Testimony Under Rule 702 of the Federal Rules of Evidence

Rule 702 of the Federal Rules of Evidence provides that "[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.

"Under Rule 702... Courts are required to act as ‘gatekeepers’ to ensure that expert testimony is relevant and reliable." Bresler v. Wilmington Trust Co. , 855 F.3d 178, 195 (4th Cir. 2017) (quoting Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 (4th Cir. 2001) ) (citing Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 588, 113 S.Ct. 2786, 125...