Vedros v. Northrop Grumman Shipbuilding, Inc., Civil Action No. 11–1198.

119 F.Supp.3d 556

Sally Gros VEDROS

v.NORTHROP GRUMMAN SHIPBUILDING, INC., et al.

Civil Action No. 11–1198.

United States District Court, E.D. Louisiana.

Signed Aug. 4, 2015.

Gerolyn Petit Roussel, Jonathan Brett Clement, Lauren Roussel Clement, Perry Joseph Roussel, Jr., Roussel & Clement, Laplace, LA, for Sally Gros Vedros.

Anita Ann Cates, Gary Allen Lee, Lee, Futrell & Perles, LLP, Adam Devlin Demahy, Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC, Deborah Deroche Kuchler, Alexandra Lamothe, Ernest G. Foundas, Francis Xavier Deblanc, III, Lee Blanton Ziffer, McGready Lewis Richeson, Michael H. Abraham, Milele N. St. Julien, Robert Edward Guidry, Kuchler Polk Schell Weiner & Richeson, LLC, Susan Beth Kohn, Douglas Kinler, James R. Guidry, Michael David Harold, Simon, Peragine, Smith & Redfearn, LLP, Glenn Gill Goodier, Hansford P. Wogan, William C. Baldwin, William P. Wynne, Jones Walker, Forrest Ren Wilkes, Jason K. Elam, Forman, Perry, Watkins, Krutz & Tardy, LLP, New Orleans, LA, Edwin A. Ellinghausen, III, Brian C. Bossier, Christopher Thomas Grace, III, Erin Helen Boyd, Blue Williams, LLP, Metairie, LA, Michael A. Olsen, Mayer Brown, LLP, Chicago, IL, Sophia L. Lauricella, Thompson, Coe, Cousins & Irons, LLP, Houston, TX, for Northrop Grumman Shipbuilding, Inc., et al.

ORDER & REASONS

CARL J. BARBIER, District Judge.

Before the Court is a Motion to Exclude Certain Testimony of Dr. Stephen Terry Kraus (Rec. Doc. 517) filed by Defendants Northrop Grumman Shipbuilding, Inc. ("Avondale"), Albert L. Bossier, Jr., and J. Melton Garrett, and OneBeacon America Insurance Company and American Employers Insurance Company in their capacities as alleged insurers of Avondale's alleged executive officers (collectively the "Avondale Interests"), a supplemental memorandum in support filed by Defendants The McCarty Corporation ("McCarty"), Eagle, Inc. ("Eagle"), and Eagle's alleged insurers, OneBeacon America Insurance Company and American Employers Insurance Company, who joined and adopted the Avondale Interests motion (Rec. Doc. 554), an opposition thereto filed by Plaintiffs (Rec. Doc. 558), a reply filed by McCarty and Eagle (Rec. Doc. 580), a Motion to Exclude Causation Opinions Regarding Benjamin Foster Products Based on the "No Safe Level of Exposure" Theory (Rec. Doc. 518) filed by Defendant Bayer CropScience, Inc., as Successor to Rhone–Poulene AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company ("Amchem"), an opposition thereto filed by Plaintiffs (Rec. Doc. 534), a reply filed by Amchem (Rec. Doc. 585), and a sur-reply filed by Plaintiffs (Rec. Doc. 589).¹ Having considered the motions and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED in part and DENIED in part .

FACTS AND PROCEDURAL BACKGROUND

At this point in the litigation, both the Court and the parties are extremely familiar with the facts of this case. The Court has previously set out the detailed facts of this matter in its Order and Reasons dated April 24, 2014. (Rec. Doc. 341). For purposes of the instant motion, only the following facts are pertinent.

This action arises from the death of Sally Gros Vedros ("Vedros") due to mesothelioma. Alton Gros, Vedros's father, worked at Avondale as a welder from 1943 to 1976, and Vedros claims to have spent many years washing her father's work clothes, which allegedly resulted in Vedros's secondary exposure to insulation dust containing asbestos. Vedros also worked at Avondale from 1960 to 1963 in the purchasing department, and she claims that she was directly exposed to asbestos while she worked at Avondale. Before her death, Vedros filed suit against many defendants, and after her death, her children joined the suit as Plaintiffs.

In preparation for trial, Plaintiffs originally retained Dr. Samuel Hammar, a preeminent pathologist, to testify to Vedros's medical condition and the cause of same. However, due to Dr. Hammar's unavailability to provide deposition or trial testimony, the Court allowed Plaintiffs to replace Dr. Hammar with Dr. Stephen Terry Kraus, a board-certified radiation oncologist. Dr. Kraus received his medical degree from the University of Cincinnati College of Medicine. He has served as the medical director for the Department of Radiation Oncology at Tulane Cancer Center, and he has been treating patients with cancer, including malignant mesothelioma, since 1982.

To prepare his expert report, Dr. Kraus reviewed scientific and medical literature regarding asbestos and asbestos-related diseases, Vedros's medical records, and deposition testimony of Vedros, Janes Champagne, Gerald Vedros, Lori Vedros Kravet, and Bobby Jambon. Dr. Kraus's expert report details his opinions regarding Vedros's exposure to asbestos and the causal relationship between her exposure and her mesothelioma. For example, Dr. Kraus opined that "domestic or para occupational asbestos exposure ‘is all that is required for mesothelioma to be asbestos related.’ " He further quoted The Congressional Record, October 2007, as follows: "There is no known safe level of asbestos exposure." In addition, he opined that "[t]here is no proof or evidence of a threshold value of occupational or para occupational exposure to asbestos that could cause malignant mesothelioma." (Rec. Doc. 518–2, pp. 5–6)

The Defendants have now filed the instant motions requesting that the Court exclude at trial the causation opinions of Plaintiffs' medical expert, Dr. Kraus, because he is unqualified as an expert and his methodology for specific causation is unreliable, speculative, unfairly prejudicial, and contrary to Louisiana law.

PARTIES' ARGUMENTS

Defendants present several arguments in support of their motions to exclude Dr. Kraus's causation opinions at trial. First, they argue that Dr. Kraus is not qualified to testify as an expert in this matter, because he cannot diagnose mesothelioma, he has never written an article regarding asbestos or diseases caused by asbestos, and his training and expertise in the field of radiation oncology does not qualify him to assess the genesis of a mesothelioma to a reasonable degree of scientific certainty. Second, Defendants argue that Kraus's causation opinions are not sufficiently reliable to be admitted, because they are based on the flawed "Every Exposure"² Theory. Defendants contend that Dr. Kraus's causation opinions are purely speculative because he did nothing to characterize Vedros's alleged exposure to certain products and therefore has no basis to conclude that the alleged exposure was actually a substantial factor in causing her mesothelioma. Furthermore, Defendants contend that Dr. Kraus's opinions are reverse engineered and based on flawed logic rather than scientific knowledge or expertise.³

In response, Plaintiffs argue that Dr. Kraus is eminently qualified to offer medical causation opinions in this case, because causation is within his purview as a radiation oncologist and he is intimately familiar with the scientific and medical literature in this regard. Next, Plaintiffs argue that Dr. Kraus does not rely upon a "no safe level exposure" theory or an "every exposure" theory, but rather Dr. Kraus's opinion is that "it takes occupational and/or para-occupational exposures to asbestos (i.e. exposures above background)" to cause mesothelioma. Dr. Kraus's theory and opinions, Plaintiffs argue, are supported by the peer-reviewed, published literature, and this theory has been recognized as valid by Louisiana courts. Moreover, Plaintiffs contend that the Defendants are asking this Court to require Dr. Kraus to opine as to a specific dose of asbestos that Vedros may have sustained from certain products, which is not required under Louisiana law.⁴

LEGAL STANDARD

Federal Rule of Evidence 702 provides that a witness who is qualified as an expert may testify if: (1) the expert's "specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue"; (2) the expert's testimony "is based on sufficient facts or data"; (3) the expert's testimony "is the product of reliable principles and methods"; and (4) the principles and methods employed by the expert have been reliably applied to the facts of the case. Fed.R.Evid. 702. The United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provides the analytical framework for determining whether expert testimony is admissible under Rule 702. Both scientific and nonscientific expert testimony are subject to the Daubert framework, which requires trial courts to make a preliminary assessment of "whether the expert testimony is both reliable and relevant." Burleson v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir.2004) ; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). When expert testimony is challenged under Daubert, the party offering the expert's testimony bears the burden of proving its reliability and relevance by a preponderance of the evidence. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998).

The reliability of expert testimony "is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid." Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir.2007). A number of nonexclusive factors may be relevant to the reliability analysis, including: (1) whether the technique at issue has been tested, (2) whether the technique has been subjected to peer review and publication, (3) the potential error rate, (4) the existence and maintenance of standards controlling the technique's operation, and (5) whether the technique is generally accepted in the relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible, however, as "not every Daubert factor will be applicable in every situation; and a court...