MEMORANDUM OPINION AND ORDER
In this аsbestos personal injury case, Defendants Crane Co. (“Crane”), Exxon-Mobil Oil Corporation (“Mobil”), Owens-Illinois, Inc. (“Owens”), and the Marley-Wylain Company (fik/a Weil-McLain)
Before the Court are the following motions:
• Motion to Exclude the “Each and Every Exposure” Opinion offered by Drs. Frank and Brody (filed by Crane, Weil, and Mobil) (dkt. 62, 73, ■77);
• Motion to Exclude the “Any Exposure” Opinion offered by Dr. Frank (filed by Owens and Mobil) (dkt. 66, 77);
• Motion to Exclude the “Single Fiber Theory” of Dr. Frank and any others (filed by Weil and Mobil) (dkt. 71, 77); and
• Motion to Bar the Expert Opinions of Frank and Parker (filed by Mobil) (dkt. 672 , 76, 77);
For the reasons below, Defendants’ request that the Court bar expert testimony espousing the “Each and Every Exposure” theory, the “Any Exposure” theory, and the “Single Fiber” theory is granted. The motions are denied in all other respects.
Legal Standard
The admissibility of expert testimony is governed by Federal Rules of Evidence 702 and 703, and the Supreme Court’s seminal cases of Daubert v. Merrell Dow Pharm., Inc.,
Daubert requires the district court to act as the evidentiary gatekeeper, ensuring that Rule 702’s requirements of reliability and relevance are satisfied before allowing the finder of fact to hear the testimony of a proffered expert. See Daubert,
The purpose of the Daubert inquiry is to scrutinize the proposed expert witness testimony to determine if it has “ ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’ so as to be deemed reliable enough to present to a jury.” Lapsley,
The district court may apply these factors with flexibility given the different forms of expert testimony that it may be asked to consider, and the relevant factors may “be adjusted to fit the facts of the particular case at issue.” United States v. Brumley,
Analysis
I. Expert Testimony Regarding the Various “Exposure” Theories
Defendants have filed three separate motions, all of which ultimately seek to bar Plaintiff from relying upon a theory of asbestos exposure offered by asbestos plaintiffs nationwide. The theory, commonly referred to as the “Any Exposure” theory, posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed.
Defendants raise numerous' arguments challenging the admissibility of this theory and ask the Court to exercise its gatekeep-ing function to exclude it under Rule 702 and Daubert. In response, Krik points to a number of cases in which courts have allowed plaintiffs to present expert testimony in support of the “Any Exposure” theory, and asks this Court to do the same. The parties do agree, however, that the Seventh Circuit has yet to weigh in upon the admissibility of thе “Any Exposure” theory in an asbestos action. After considering the decisions of other courts and the record before it, the Court concludes that Krik has not established that the “Any Exposure” theory is sufficiently reliable to warrant admission under Rule 702 and Daubert. Accordingly, Plaintiff will be precluded from offering any expert testimony espousing the “Any Exposure” theory at trial.
As a threshold matter, the Court is presented with a choice-of-law question. Certain оf the Defendants contend that Illinois substantive law controls the standard to establish causation in a personal injury case, while other Defendants rely upon maritime law. See, e.g., Dkt. 66 (citing Krik v. BP Am., Inc., No. 11-cv-63478,
Having addressed the choice-of-law .issue, the Court now turns to the standard articulated by the Supreme Court in Dau-bert: a scientific theory or technique may be considered to be “reliable” where it (1) “can be (and has been) tested”; (2) “has been subjected to peer review and publication”; (3) has a “known or potential rate of error”; and (4) is “generally] accepted]” in the “relevant scientific community,” to a suffiсient degree.
For his part, Krik responds that the methodology underlying the “Any Exposure” opinion “is proper.” Resp. 6. Specifically, Krik argues that the theory “was developed at an international conference of medical experts in Helsinki, Finland in 1997” and is referred to as “The Helsinki
With that backdrop, the Court first will examine whether the “Any Exposure” theory is sufficiently reliable to pass Dau-bert muster. We start with Plaintiffs ac-knowledgement that the ailment that he suffers — asbestos-induced lung cancer — is dosage dependent. As Krik concedes, his own expert, Dr. Frank “stаted in his deposition in this case that asbestos-related lung cancer is a dose-responsive disease.” PL’s Resp. 6 n.5. Krik’s counsel also acknowledged at oral argument that Dr. Frank and Dr. Brody each intended to present “dosage dependent theories” at trial. 4/8/14 Hearing Tr. at 39.
Yet, despite this, Plaintiff would have his experts testify that any exposure to asbestos, even the-very first one, regardless of dosage is sufficient to cause asbestos-induced lung cancer. See id. at 30 (noting that Dr. Frank would testify that “any exposure, even the first exposure” would be considered a substantial contributing factor); 38 (acknowledging that Dr. Frank would testify that the first exposure, no matter how limited, would be a substantial cause). In support, Krik cites to a number of studies for the proposition that there is no known threshold or safe level of asbestos exposure. See Pl.’s Resp. 7. But, as the Seventh Circuit observed in Schultz v. Akzo Nobel Paints, LLC,
In that regard, it is helpful to contrast the expert opinions in this case to those at issue in Schultz. There, the plaintiff, a painter, suffered from acute myeloid leukemia (“AML”) and аlleged that his occupational exposure to benzene caused the illness. To support his theory of causation, he offered the expert testimony of a physician, who opined that a person, like the plaintiff, who had been exposed to more than eleven parts per million-years of benzene would be at an eight-times greater risk for developing AML that the general population. Id. The district court excluded the testimony, but the Seventh Circuit reversed, finding the physician’s testimony sufficiently reliable.
In contrast to the plaintiff in Schultz, Krik does not offer any expert testimony as to how much asbestos exposure he experienced and whether that dosage of exposure was sufficient to cause his lung cancer. Rather, he relies upon the “Any Exposure” theory and argues that a single exposure to asbestos is enough and every additional exposure contributеd as well. The primary basis for the “Any Exposure” theory seems to be that Krik’s experts cannot rule out that a single dose of asbestos causes injury. From this, they conclude that any and all exposure to asbestos is necessarily harmful. See 4/8/14 Hearing Tr. at 33 (Krik’s counsel stated that “they always say... that the cumulative expo
Krik nevertheless asserts that because the precise exposure to asbestos cannot be calculated, even de minimis exposure satisfies the substantial contributing factor test. The Court disagrees. As the MDL court explained in its opinion denying Crane’s summary judgment motion, under maritime law, “[a] mere ‘minimal exposure’ to a defendant’s product is insufficient to establish causation.” Krik v. BP Am., Inc., MDL No. 875,
Illinois law requires a similar showing. Indeed, the controlling case from the Illinois Supreme Court, Thacker, explicitly adopted the “frequency, regularity, and proximity” causation test “as the rule of law in Illinois,” from a Fourth Circuit case entitled Lohrmann v. Pittsburgh Corning Corp.,
Next, the Court concludes that the “Any Exposure” theory also is inadmissible given Krik’s experts’ wholesale failure to base their opinions on facts specific to this case. See Rule 702(d) (requiring the expert to reliably apply the principles and methods to the facts of the case). Indeed, as other courts have cautioned when considering the admissibility of this theory, “the Court must base its opinion on the facts and testimony presented in this case, rather than on the testimony of experts in other cases.” Anderson v. Ford Motor Co.,
Here, Krik’s experts provide no information regarding the amount of exposure Krik may have had to asbestos, and Dr. Frank and Parker readily admitted in their depositions that they had not considered any such information in their analysis. Frank Dep. 108,129; Parker Dep. 70.
The recent case, Anderson v. Ford Motor Co., is particularly instructive. There, the court also barred experts from presenting the “Any Exposure” theory at trial in an asbestos action. Critical to the Anderson court’s decision was the fact that the experts “simply assert[ed] that any level of exposure is hazardous to human beings and fore[went] any examination of [plaintiff s] actual level of exposure.”
The facts in Anderson are similar to those in the record here. Krik’s' experts have not presented any individualizеd analysis of his level of asbestos exposure. Moreover, the expert reports and briefs filed by Krik’s counsel provided this Court with only generalized citations to scientific literature, with no indication that these are the authorities upon which its experts intend to rely. Nor do Krik’s experts identify any peer-reviewed scientific journal adopting the “Any Exposure” theory, or cite any medical studies that set forth a known rate' of error fоr this analysis. Frank Dep. 54-55; Dkt. 62-3 (Brody Report) (generally referencing unidentified “peer-reviewed publications and invited reviews”). Instead, Krik’s experts tout the “Any Exposure” theory with little to no evaluation of the actual facts in this case. Just as the record in Anderson was insufficient to allow the “Any Exposure” theory in the face of a Daubert challenge, so it is here.
Lastly, Krik argues that the MDL court previously has held that the “Any Exposure” theory is admissible in this particular case. See Schumaсher v. Amtico (In re Asbestos Prods. Liab. Litig.), No. 10-cv-01627,
Perhaps recognizing this, rather than arguing that the Schumacher decision is binding here, Krik suggests only that “[t]his court should follow the precedent of .the MDL-875 supervising judge.” Dkt. 79 at 5. But, the two cases are distinguishable. First, the Schumacher case involved different types оf allegedly asbestos-containing materials and products than those at issue here. And, perhaps more importantly, the expert in Schumacher, Dr. Maddox, engaged in a more detailed and case-specific analysis that any of the experts at issue here. For example, in addition to scientific literature, Dr. Maddox reviewed plaintiff’s deposition and the discovery materials produced in that case, as well as case studies thаt linked the specific products at issue to asbestos-related disease. See id. at *5-6.
For these reasons, Plaintiff will be barred from offering any expert testimony espousing the “Any Exposure” theory, “Each and Every Exposure” theory, and the “Single Fiber” theory at trial.
II. Motion to Bar the Expert Opinions of Frank and Parker
Mobil also has moved individually to bar testimony of Dr. Frank and Parker. Mobil seeks two forms of relief as to Dr. Frank: first, to preclude him from espousing the “Any Exposure” opinion; and second, to bar him from “offering any specific causation testimony regarding Mobil.” Reply 1. Mobil also asks the Court to bar Parker from testifying that Krik “was occupationally exposed to significant concentrations of airborne asbestos” at any Mobil-owned facility. Id. The first form of relief as to Dr. Frank has been addressed earlier in this opinion, and that portion of Mobil’s motion is granted. However, for the reasons set forth below, the remainder of Mobil’s motion is denied.
Mobil’s rеmaining arguments are essentially the same as to both experts: because Dr. Frank and Parker offered no specific testimony during their depositions or in their initial expert reports tying Krik’s exposure to Mobil’s facility, they should be precluded from testifying as to Mobil at all. Krik responds, in relevant part, that these arguments go to the weight of the evidence and are appropriate for cross-examination, but are not grounds for exclusion under Rule 702. The Court agrees.
As the MDL court recognized in denying Mobil’s motion for summary judgment, there was evidence in the record establishing that Krik “was exposed to asbestos from insulation he removed from steam lines while replacing unit heaters in 25 control rooms in ExxonMobil’s premises, including during the sweeping of the insulation dust into the dustpan while not wearing any protective gear.” Pl.’s Resp., Ex. 8 at 16. Ignoring this finding, Mobil instead rehashes its unsuccessful argu
Conclusion
For the reasons set forth above, the Court rules as follows:
• Defendants Crane Co.’s, Marley-Wy-lain’s, and Exxon/Mobil’s Motions to Exclude the “Each and Every Exposure” Opinion offered by Drs. Frank and. Brody (dkt.62, 73, 77) are granted;
• Defendants Owens-Illinois’ and Exxon/Mobil’s Motions to Exclude the “Any Exposure” Opinion offered by Dr. Frank (dkt.66, 77) are granted;
• Defendants Marley-Wylain’s and Exxon/Mоbil’s Motions to Exclude the “Single Fiber Theory” of Dr. Frank and any others (Weil, Mobil) (dkt.71, 77) are granted; and
• Defendant Exxon/Mobil’s Motion to Bar the Expert Opinions of Frank and Parker (dkt.67, 76, 77) is granted in part and denied in part.
IT IS SO ORDERED.
Notes
. Weil has since been dismissed as a defendant in this action. Dkt. 288. However, because Weil filed its own motion (dkt. 71), which raises related but different arguments than those asserted by the remaining defendants, and because that motion was joined by Mobil (dkt. 77), the Court will consider it here in conjunction with the other Daubert motions.
. One of these motions was filed by Defendant BP America, Inc. (dkt.67), who was dismissed from the action on November 7, 2013. Dkt. 149. However, because Mobil joined the motion, the Court will consider the arguments raised therein.
. Other monikers include the "Each and Every Exposure” theory, the "Single Fiber” theory, and the "no safe level of exposure” theory-
. Under this test, a plaintiff can establish causation where he can show that the worker regularly worked in the area where the defendant's asbestos product was frequently used and the worker did in fact work close enough to the area to have come into contact with the product, commonly referred to as the “frequency, regularity, and proximity” analysis. Thacker,
. In support of his argument, Krik cites to Zickuhr v. Ericsson, Inc.,
. Numerous other courts also have barred "Any Exposure” opinions in asbestos and toxic tort actions. See, e.g., Moeller v. Garlock Sealing Techs., LLC,
. The Schumacher opinion is rife with such references: "Defendants’ arguments mischar-acterize Dr. Maddox's testimony in this case,’’ id. at *4 (emphasis added); “Dr. Maddox's underlying methodology involves reviewing Plaintiffs testimony and Defendant’s answers to interrogatories regarding the percent of chiysotile asbestos contained in Defendants’ respective products,” id. at * *5-6 (emphasis added); "Dr. Maddox looks to case studies linking the specific products at issue in the instant case (floor tile, joint compounds, and gaskets and packing),” id. at *6; and "he has cited case studies of individuals with occupational histories similar to that of Plaintiff." Id. at *8 (emphasis added)