Bobo v. AGCO Corporation
5:12-cv-01930
N.D. Ala.Aug 25, 2014Background
- Decedent Barbara Bobo developed pleural malignant mesothelioma; plaintiffs are co-personal representatives of her estate suing TVA for paraoccupational exposure (laundering husband’s TVA work clothes) allegedly containing asbestos.
- All other original defendants were dismissed by stipulation; TVA remains the sole defendant.
- Plaintiffs proffered two expert witnesses on causation: Dr. Virginia Wulsin (general causation) and Dr. Eugene Mark (specific causation).
- TVA moved to exclude Wulsin’s and Mark’s specific-causation opinions under Rule 702/Daubert, arguing unreliability and failure to connect opinions to supporting science.
- Plaintiffs elected not to offer Dr. Wulsin’s specific-causation testimony (she will testify only on general causation), rendering TVA’s motion as to Wulsin moot.
- The court evaluated Dr. Mark’s qualifications, methodology, reliance on literature and depositions, and his opinion that each "significant" asbestos exposure cumulatively contributes as a substantial factor to mesothelioma.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Wulsin’s specific-causation testimony | Wulsin will testify only on general causation; will not opine that TVA exposure specifically caused Mrs. Bobo’s mesothelioma | Wulsin failed to consider alternative exposures and did not bridge analytical gap to literature | Moot — plaintiffs elected not to offer specific-causation testimony from Wulsin |
| Admissibility of Dr. Mark’s specific-causation opinion | Mark: each "significant" asbestos exposure (including laundering husband’s clothes) contributes cumulatively and is a substantial contributing cause; relied on literature, Hill criteria, case reports, and deposition evidence | TVA: Mark’s “every exposure/single fiber” theory is scientifically unreliable and lacks studies tying laundry exposures to causation | Denied — court finds Mark did not opine that every single fiber causes mesothelioma; his methodology and literature support meet Rule 702; challenges are for cross-examination |
| Reliability of cumulative-exposure causation theory | Cumulative-exposure model is supported by epidemiology and pathology; no known safe threshold for mesothelioma | TVA says no reliable studies specifically proving laundry-level exposures cause mesothelioma in this case | Admissible — court finds cumulative/contributory exposure opinions supported by literature and accepted precedent; not inherently unreliable |
| Gatekeeping role vs. weight of evidence | Plaintiffs: proffered methodology and literature suffice for admissibility; deficiencies go to weight | TVA: methodological flaws render opinion inadmissible under Daubert/Kumho | Court: gatekeeping does not replace jury’s role; admissibility proper and remaining disputes go to weight and cross-examination |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (establishes district court gatekeeping standard for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (applies Daubert gatekeeping to all expert testimony)
- Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183 (lists Daubert factors; admissibility analysis)
- United States v. Abreu, 406 F.3d 1304 (discusses exacting analysis of expert foundations)
- United States v. Frazier, 387 F.3d 1244 (supports district court’s gatekeeping role)
- Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (court may admit imperfect expert evidence; persuasiveness for jury)
- Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (recognizes cumulative effect of asbestos exposures)
- Bonner v. City of Prichard, 661 F.2d 1206 (Eleventh Circuit adoption of pre-1981 Fifth Circuit precedent)
- Sheffield v. Owens-Corning Fiberglass, 595 So. 2d 443 (Ala. 1992) (accepts expert causation testimony that each exposure can be causative)