Rockman v. Union Carbide Corp.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

Plаintiff 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 “Plаintiffs” or “the Roekmans”) 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. 188 & 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 Roekmans’ 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 ckrysotile asbestos contained in Georgia-Paeific’s “Ready Mix” joint compound “caused” or were a “substantial factor” in his developing peritоneal 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 “cu-mulates” 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 аsbestos, should be considered a “substantial factor” in Mr. Roekman’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 Rock-mans’ 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 Sevеn 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 Juné 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 “hаndymen.” Id. Mr. Rock-man 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 ckrysotile 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. Rock-man concedes that .he was not exposed to Union Carbide Calidria. prior to 1970, during the rеpair 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 chryso-tile asbestos contained in Georgia-Paeific’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 “cu-mulates” 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 alsо 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 Georgiar-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 bn 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 L.Ed.2d 469 (1993)). “[A] district court ‘must conduct a preliminary assessment’ to determine whether the methodology underlying the expert witness’ testimony is valid.” Id. (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786).

Although Rule 702 allows for a liberal introduction of expert evidence, “courts must recognize that due' to the difficulty of evaluating their testimony, expert witnesses have the potential to ‘be both powerful and quite misleading.’” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert, 509 U.S. at 595, 113 S.Ct. 2786). The proponent of the expert testimony in question must establish admissibility “by a preponderance of proof.” Cooper, 259 F.3d at 199 (citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786). The United States Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) set forth several factors for courts to consider iri assessing the admissibility of expert testimony. ‍‌‌​‌‌‌‌‌‌​​​​​‌​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​​‌‌​​​‌​‌‍The United States Court of Appeals for the Fourth Circuit has recently confirmed those factors in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017):

In assessing the validity of the methodology employed by a proposed expert witness, a . court may consider-whether the expert witness’ theory or technique: (1) “can be or has been tested”; (2) “has been subjected to peer review and publication”; (3) “has a high known or potential rate of error”; and (4) is generally accepted “within a relevant scientific community.”

(citing Cooper, 259 F.3d at 199). The Daubert factors are “neither definitive, nor exhaustive.” Cooper, 259 F.3d at 199 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). Rather, “[t]he district court must be granted ‘considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.’ ” United States v. McLean, 695 Fed.Appx. 681, 684 (4th Cir. 2017) (quoting United States v. Wilson, 484 F.3d 267, 273 (4th Cir. 2007)).

II. Motions for Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure .

Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows- that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a motion for summary judgment, a. judge’s function is limited to determining whether sufficient evidence exists on a claimed factual .dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249, 106 S.Ct. 2505, In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable .to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). This Court “must not weigh evidence or make credibility, determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th. Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)). However, this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993).

ANALYSIS

I. Defendants’ Motions to Exclude Expert-Testimony (ECF Nos. 161 & 162) are GRANTED with Respect to the ■ Specific, Causation Opinions of Drs. ■ Jerrold Abraham and Arthur Frank

In determining whether an expert’s opinion satisfies Daubert scrutiny, the United States Court of Appeals for the Fourth Circuit has directed courts to “evaluate ' ... the opinion’s underlying methodology.” Bresler, 855 F.3d at 195. In this case, the specific causation opinions of Drs. Abraham and Frank are not the “product of reliable principles and methods,” as required by Rule 702(c) of the Federal Rules of Evidence, nor do they satisfy the Daubert factors, including “testability,” “peer review,” and “general acceptance” within the “relevant scientific community,” Bresler, 855 F.3d at 195. On the contrary, both experts have improperly drawn conclusions about this case, a case involving 'peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, based on.prior research studying pleural mesothelioma and primarily high-level exposures to amphibole asbestos. As discussed further herein, chrysotile asbestos is classified in ■ an entirely separate mineralogical family from amphibole asbestos and is widely considered less potent. Pleural mesothelioma is a cancer of the lining of the lungs, while peritoneal mesothelioma affects the stomach.

In support of their opinions that Mr. Rockman’s peritoneal mesothelioma was “caused” by his alleged 1965, 1973, and 1976 bystander asbestos exposures, Drs. Abraham and Frank have cited a series of studies involving high-level occupational exposures to asbestos. See Frank Aff., p. 2, n. 2, EOF No. 161-6 (citing, e.g., studies of mesothelioma among “chrysоtile textile workers” and “employees of ... factory that manufactured friction materials using chrysotile asbestos.”). In contrast, Mr. Rockman has not alleged that he ever worked with asbestos or used an asbestos-containing product. He was merely present while workers completed three repair projects at his home in 1965, 1973, and 1976. Those projects lasted at most “several weeks,” and it is unclear for how much of that time Georgia-Pacific’s joint compound was actually used. Neither Dr. Abraham nor Dr. Frank has been able to quantify Mr. Rockman’s alleged exposure to chryso-tile asbestos, although Dr, Abraham has explicitly indicated that it is “unlikely” Mr. Rockman’s exposure was even as high as “one fiber-year⁴.” Abraham Dep., p. 46, EOF No. 161-4. Plaintiffs’ experts have identified no study associating peritoneal mesothelioma with chrysotile exposures lower than 100 fiber-years. See id. at 46-47; Brody Dep., p. 28, EOF No. 161-9. As noted supra, peritoneal mesothelioma is a specific type of mesothelioma affecting the lining of the stomach as opposed to the lungs, and chrysotile is a distinct, and less potent, asbestos type.

Although “expert testimony need not be based upon identical case studies or epidemiological data,” Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1384 (4th Cir. 1995), the Fourth Circuit has recently made clear in Lord & Taylor, LLC v. White Flint, L.P., 849 F.3d 567, 577 (4th Cir. 2017), as amended (Mar. 7, 2017), that courts must “ ‘ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.’ ” (citing Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786)) (emphasis in original).

In reaching their conclusions, Drs. Abraham and Frank have relied on the “Helsinki Criteria,” see Consensus Report: Asbestos, asbestosis, and cancer: the-Helsinki criteria for diagnosis and attribution, 23 Scand. J. Work" Env’t Health 311 (1997), ECF No. 171-5, which ■Plaintiffs contend “do not require a quantitative estimate of a patient’s asbestos ‘dose.’ ” PI. Opp’n, p. 7, ECF No. 171 (emphasis in original). Although the Helsinki Criteria provides that “significant ... domestic, or environmental exposure to asbestos will suffice” to attribute mesothelioma to those asbestos exposures, neither Dr. Abraham nor Dr. Frank has been able to quantify Mr. Rockman’s exposure as “significant.” As the United States District Court for the Eastern District of North Carolina observed in Yates v. Ford Motor Co., 113 F.Supp.3d 841, 861-62 (E.D.N.C.), reconsideration denied, 143 F.Supp.3d 386 (E.D.N.C. 2015), the use of the term “significant ... implies that a certain level has been established at which the asbestos exposure attains ‘significance.’” The North Carolina court in Yates specifically excluded an expert’s causation opinion, based on the Helsinki Criteria, because he had failed to demonstrate that a “significant” asbestos exposure had occurred. Id. at 862. The court further concluded that “[t]o the extent the Helsinki Criteria does not require an expert to establish the levels at which the particular fiber type of asbestos presents a risk, the criteria cannot 'substitute for the well-established and legally-recognized methods of determining when a substance is hazardous.” Id.

Drs. Abraham and Frank have likewise conflated data on pleural mesothelioma and amphibole asbestos with data on peritoneal mesothelioma and chrysotile asbestos. The Supreme Court of the United States in Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 142, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) has defined “mesotheli-om'a” as “a fatal cancer of the lining of the lung or abdominal cavity.” “Peritoneal” mesothelioma refers specifically to meso-thelioma of the abdomen, while “pleural” mesothelioma refers to mesothelioma of the lungs and chest. See, e.g., 60 Am. Jur. Trials 73. Although it is undisputed that Mr. Rockman has been diagnosed with peritoneal mesothelioma, Plaintiffs’ experts have relied on studies of pleural mesothelioma or pleural and peritoneal mesothelioma. This is despite the fact that both Dr. Abraham and Dr. Brody have acknowledged that peritoneal mesothelio-ma is typically caused by higher exposure levels than pleural mesothelioma. Abraham Dep., pp. 39-40, ECF No. 161-4; Brody Dep., p. 26, ECF No. 161-9. In fact, the Helsinki Criteria (ECF No. 171-5), relied upon by Plaintiffs, specifically cites “evidence that peritoneal mesotheliomas are associated with higher levels of asbestos exposure than pleural mesotheliomas.”

Additionally, it is undsputed that Union Carbide sold Georgia-Pacific a specific type of asbestos, Calidria chrysotile asbestos, for the production of Georgia-Pacific joint compound. See, e.g., PI. Opp’n, pp. 3-4, ECF No. 173 (citing Georgia-Pacific’s Responses to Interrogatories, p. 6, ECF No. 173-5). As the United States District Court for the Eastern District of North Carolina has observed in Yates v. Ford Motor Co., 113 F.Supp.3d 841, 853 (E.D.N.C.), “[tjhere are different forms of asbestos, including chrysotile,’ crocidolite, cummingtonite-grunerite (also known as amosite), actinolite, anthophyllite, and tre-molite asbestos” (citing ‍‌‌​‌‌‌‌‌‌​​​​​‌​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​​‌‌​​​‌​‌‍MSHA Asbestos Rule, 11285). “‘Amphibóle’ asbestos includes amosite, crocidolite ánd tremol-ite.... ‘[ajmphiboles’ are classified in a mineralogical family separate from chryso-tile asbestos.” Id. (citing Deposition testimony of Pis.’ expert). With agreement of the parties, the North Carolina court observed in Yates that “amphibole asbestos is more potent than chrysotile asbestos,- and that higher levels of exposure to chry-sotile asbestos than amphibole asbestos are necessary to cause mesothelioma.” Id.; see also Bartel v. John Crane, Inc., 316 F.Supp.2d 603, 606 (N.D. Ohio 2004), aff'd sub nom. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005) (“[A]m-phiboles can be up to 100 to 500 times more' potent than chrysotile in, causing mesothelioma.”).

Drs. Abraham and Frank have cited several studies involving asbestos types other than chrysotile. See, e.g., Iwatsubo, et al., Pleural Mesothelioma: Dose-Response Relation at Low Levels of Asbestos Exposure in a French Population-Based Case-Control Study, 148(2) Am. J. Epidemiology 133 (1998). However, the United States District Court for the Eastern District of North Carolina in the Yates case specifically excluded an expert’s causation opinion for its failure to “take into account that not all asbestos is the same.” Yates, 113 F.Supp.3d at 853. Like Mr. Rockman, the Plaintiff in Yates alleged exposure, to “chrysotile asbestos” specifically, but the “causation opinions” of his expert witness, Dr. Marks, “addressed] ‘visible dust’ from all asbestos-containing, products, without distinguishing between fiber types, or at least offering a reliable explаnation for why it is proper to do so,” Id. at 854. The court reasoned that “it- [was] chrysotile asbestos, not merely asbestos as a whole, for .which Mark should have established a ‘level of exposure that [is] hazardous to human beings generally.’” Id. Therefore, the court concluded that Dr. Marks “ha[d] not reliably applied the methods of demonstrating toxicological causation to the facts of ,th[e] case” and that the “effect of Mark’s opinions [was] to deluge the trier of fact with a storm of questionable statistics, without guidance as to how these statistics establish a generally hazardous level of exposure to the forms of asbestos [at issue].” Id. at 854, 856.

Like Dr. Marks in the Yates case, Plaintiffs’ experts Dr. Abraham and Dr. Frank have failed to support their specific causatiоn opinions with “sufficient facts or data” or a “testable,” “peer-reviewed” theory that is “generally accepted” within the scientific community. See Fed. R. Evid. 702(c); Bressler, 855 F.3d at 195. Plaintiffs’ experts have not only conflated asbestos type and disease type in their analysis of the relevant scientific data, but have been unable to identify any study associating peritoneal mesothelioma with chrysotile bystander exposures as limited in duration and proximity as Mr. Rock-man’s alleged 1965, 1973, and 1976 exposures. Although Plaintiffs have cited a single paper by Dr. Laura Welch, “Asbestos Exposure Causes Mesothelioma, But Not This Asbestos Exposure: An Amicus Brief to the Michigan Supreme Court” (the “Welch Paper”) (ECF No. 187-1), for the proposition that each and every low-level exposure to asbestos, regardless of asbestos type, must be considered a cause of mesothelioma, the United States District Court for the Eastern District of North Carolina has specifically held that “this document, which was initially prepared for purposes of litigation, is not one that ‘experts in the particular field would reasonably rely on’ for purposes of satisfying Federal Rule of Evidence 703.” Yates, 113 F.Supp.3d at 847. This Court concludes the same. For these reasons, Defendants’ Georgia-Pacific and Union Carbide’s Motions to Exclude Expert Testimony (ECF Nos. 161 & 162) are both GRANTED with respect to the specific causation opinions of Drs. Abraham and Frank.

II. Defendants’ Motions to Exclude Expert Testimony (ECF Nos. 161 & 162) are GRANTED with Respect to the “Each and Every Exposure” Theory

All three of Plaintiffs’ experts have espoused the theory that “each and every” exposure ■ to asbestos “cumulates” and should therefore be considered a cause of injury, regardless of the type of mesotheli-oma, the exposure “dose,” the type of asbestos, or the passage of time. Dr. Frank has specifically stated that “ft]he cumulative exposures [Mr, Rockman] had to asbestos, from any and all products, containing any and all fiber types ... would all have contributed to his [mesothelio-ma].” Frank Report, p. 2, EOF No. 162-37 (emphasis added). Dr. Abraham has similarly indicated that he requires only “a history that someone has had exposure more than they would have otherwise had” before it is. “sufficient for [him] to attribute their mesothelioma totally, if that’s their only exposure or in part if that’s part of their cumulative exposure.” Abraham Dep., p. 51, EOF No. 162-34. Additionally, Dr. Brody has likewise indicated that the precise amount of exposure is “not really relevant” because “at levels above background regardless of the source or however it happened,” all asbestos exposures cause disease. Brody Dep., pp. 8 — 10, EOF No. 161-9.

Although Plaintiffs’ experts do not explicitly use the phrase “each and every exposure,” the theories are one and the same. See, e.g., Yates, 113 F.Supp.3d at 846 (“Also referred to as “any exposure” théo-ry, or “single fiber” theory, [the “each and every exposure” theory]' represents the viewpoint that, because science has failed to establish that any specific dosage of asbestos cáuses injury, every exposure to asbestos should be considered a cause of injury.”), In fact, Dr. Frank has previously stated that he specifically -avoids using the phrase “each and every” in light of court rulings excluding .testimony based on that theory. See, e.g., Frank Dep. p. 70, EOF No. 162-35. Thе United States District Court for the Western District of Wisconsin has recently rejected Dr. Frank’s rephrasing in Suoja v. Owens-Illinois, Inc., 211 F.Supp.3d 1196, 1207 (W.D. Wis. 2016), holding that, whether. called “cumulative exposure” or “each and every exposure,” Dr. Frank’s “ultimate opinion was not tied to any specific quantum of exposure that was attributable to- -defendant, but instead was based on his holistic view that every exposure to asbestos, no matter how minimal-,= is a substantial contributing factor to any resulting mesothelioma.” The United States District Court for the Northern District of Illinois has held the same in Krik v. Owens-Illinois, Inc., 2015 WL 5050143, *1 (N.D. Ill. Aug. 25, 2015), ruling that Dr. Frank’s • “cumulative exposure” testimony was no different than “each and every” exposure testimony.

Opinions based on the “cumulative exposure” or “each and every exposure” theory have been repeatedly excluded by those courts that have considered its admissibility under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The United States District Court for the Eastern District of North Carolina in the case of Yates v. Ford Motor Co., 113 F.Supp.3d 841, 848 (E.D.N.C.), reconsideration denied, 143 F.Supp.3d 386 (E.D.N.C. 2015), discussed supra, specifically excluded Dr. Brody’s testimony as to the “each and every exposure” .theory, reasoning ■ that “Plaintiffs ha[d] failed to show” that Brody’s reliance on the theory “ha[d] sufficient supporting facts and data.” Id. at 847. The court rejected Dr. Brody’s reliance on the Welch Papen, discussed supra, as well as Plaintiffs’ attempt to re-characterize his theory as an “above background” theory. Id. Numerous courts have similarly excluded “each and every exposure” testimony and opinions grounded in that theory, as the court in Yates observed:

The theory that “each and every, exposurе to asbestos products results in injury to the person so exposed” has made repeat appearances in the realm of asbestos litigation. Krik v. Crane Co., 76 F.Supp.3d 747, 749-50 (N.D. Ill. 2014); see William L. Anderson, “The ‘Any Exposure’ Theory Round II— Court Review of Minimal Exposure Expert Testimony in Asbestos and Toxic Tort Litigation Since 2008,” 22 Kan. J.L. & Pub. Pol’y 1 (2012).... Numerous courts have excluded expert testimony or evidence grounded in this theory, reasoning that it lacks sufficient support in facts and data. E.g., Comardelle v. Pa. Gen. Ins. Co., 76 F.Supp.3d 628, 632-33 (E.D. La. 2015); Krik, 76 F.Supp.3d at 752-53, [Anderson v. Ford Motor Co., 950 F.Supp.2d 1217, 1225 (D. Utah 2013) ]; Sclafani v. Air & Liquid Sys. Corp., No. 2:12-CV-3013, 2013 WL 2477077, at *5 (C.D. Cal. May 9, 2013); Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1166 (E.D. Wash. 2009). Likewise, applying the Daubert factors, courts have found that the theory cannot be tested, has not been published in peer-reviewed works, and has no known error rate. Krik, 76 F.Supp.3d at 753-54; Anderson, 950 F.Supp.2d at 1224-25; Sclafani, 2013 WL 2477077, at *5; see Wills v. Amerada Hess Corp., 379 F.3d 32, 49 (2d Cir. 2004) (affirming exclusion of theory that decedent’s cancer was caused by a single exposure to toxic chemicals, regardless of dosage, based on Daubert factors).

Yates, 113 F.Supp.3d at 846.

Plaintiffs have cited a series of state court decisions accepting the “each and every ‍‌‌​‌‌‌‌‌‌​​​​​‌​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​​‌‌​​​‌​‌‍exposure” theory, including the decision of the Court of Appeals of Maryland in Dixon v. Ford Motor Co., 433 Md. 137, 70 A.3d 328, 331 (2013). However, as this Court explained on the record at the July 6, 2017 hearing, Maryland state courts do not follow Rule 702 of the Federal Rules of Evidence or Daubert in assessing the admissibility of expert opinion testimony. Rather, “Maryland adheres to the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) [and adopted by the Court of Appeals of Maryland in Reed v. State, 391 A.2d 364 (Md. 1978) ], for determining the admissibility of scientific evidence and expert scientific testimony.” Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 923 A.2d 939, 946 (2007). Under the Frye-Reed test, “[t]he opinion of an ‘expert’ witness should be admitted only if the court finds that ‘the basis of the opinion is generally accepted as reliable within the expert’s particular scientific field.’ ” Id. (quoting Wilson v. State, 370 Md. 191, 803 A.2d 1034 (Md. 2002)) (emphasis added). Although applying Maryland state evidentiary rules, evеn the Court of Appeals of Maryland has acknowledged this month in Rochkind v. Stevenson, 454 Md. 277, 294, 164 A.3d 254 (Md. 2017), a lead paint case, that “[without epidemiological studies — or other reliable evidence — demonstrating a causal link” between injury and exposure, expert testimony ‘“amount[s] to no more than mere speculation and conjecture.’ ” (emphasis added) (quoting Bentley v. Carroll, 355 Md. 312, 734 A.2d 697 (1999)). Regardless, as this Court has observed in United States v. Horn, 185 F.Supp.2d 530, 553 (D. Md. 2002), “application of Daubert/Kumho Tire analysis results in the exclusion of evidence that might otherwise have been admitted under Frye.” (emphasis added).

As discussed supra, prevailing authority applying Daubert has rejected Plaintiffs’ experts’ “each and every exposure” causation theory. That theory is not the “product of reliable principles and methods,” as required by Rule 702(c) of the Federal Rules of Evidence, nor does it enjoy “general acceptance” within the “relevant scientific community,” Bresler, 855 F.3d at 195. Accordingly, Defendants’ Motions to Excludе Expert Testimony (ECF Nos. 161 & 162) are both GRANTED with respect to the “each and every exposure” theory.

III. Georgia-Pacific’s Motion for Summary Judgment as to All Claims (ECF No. 159) is GRANTED

As discussed supra, the only remaining counts against Defendants Union Carbide and Georgia-Pacific' are Mr. Rockman’s claims of Strict Liability (Count One) and Negligence (Count Three), along with the Rockmans’ additional claim for Loss of Consortium (Count Seven). “In an action claiming both negligence and strict liability, the plaintiff bears the burden of proving that the defendant’s tortious behavior was the proximate cause of the plaintiffs injury.” Wright v. Lead Indus. Ass’n, Inc., No. 1896 SEPT.TERM 1996, 1997 WL 34717752, at *2 (Md. Ct. Spec. App. Oct. 21, 1997) (citing Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 604 A.2d 47 (1992), cert. denied, 506 U.S. 871, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992)). As the United States Court of Appeals for the Fourth Circuit has explained in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986), “[t]o establish proximate causation in Maryland, the plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” Robin Express Transfer, Inc. v. Canton R.R., 26 Md.App. 321, 338 A.2d 335, 343 (1975).

As this Court has explained in Sherin v. Crane-Houdaille, Inc., 47 F.Supp.3d 280, 294 (D. Md. 2014), an individual like Mr. Rockman who “did not work directly with asbestos products” is considered a “ ‘bystander’ ” under Maryland law. (citing Eagle-Pichet Indus., Inc. v. Balbos, 326 Md. 179, 604 A.2d 445, 460 (1992)). “Whether a bystander’s exposure to asbestos products is legally sufficient to find substantial-factor causation is fact specific.” Sherin, 47 F.Supp.3d at 295 (citing Balbos, 604 A.2d at 460). The Court of Appeals of Maryland in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 604 A.2d 445 (1992) has announced a set of factors for courts to consider in assessing whether a Plaintiff has carried his burden of demonstrating substantial factor causation, the “Balbos Factors.” The “[fjactors to consider include the frequency of the asbestos product’s use, the regularity of a plaintiffs exposure, and the time and distance proximity of a plaintiff to the product’s use.” Sherin, 47 F.Supp.3d at 295 (citing Balbos, 604 A.2d at 460). The Court of Appeals of Maryland has made clear in Georgia-Pac. Corp. v. Pransky, 369 Md. 360, 800 A.2d 722, 725 (2002) that evidence concerning medical causation must be considered in this analysis. For the reasons outlined supra, the causation testimony of Plaintiffs’ experts, founded on the “each and every exposure” theory, including Dr. Abrahaih and Dr. Frank’s “specific causation” opinions, have now been excluded. Plaintiffs’ counsel acknowledged at this Court’s July 6, 2017 hearing that the Plaintiffs cannot survive summary judgment without the testimony of Plaintiffs’ experts as to causation. However, even if this Court were not to exclude the testimony of Plaintiffs’ experts, summary judgment would still be granted for Defendants because Plaintiffs have failed as a matter of law to demonstrate “substantial factor” causation under the Balbos Factors.

With respect to - Georgia-Pacific, Mr. Rockman has made clear that he never worked directly with “Ready Mix” joint compound. He has estimated that he only spent “50 to 60 percent of the time” in his apartment while the-1965 repairs were being made. Rockman Dep. Yol. II, pp. 257-58, ECF No. 159-4.' As to the 1973 repairs, Mr. Rockman has indicated that he did not spend much time in the living room of his home, where the work was taking place, but rather studied for the Bar exam “in the back bedroom,” coming- out only “time to time.” Rockman Dep. Yol. I, pp. 114, 116, 122,. EOF No. 159-2. Mr. Roekman has likewise indicated that in 1976 he did not spend significant time in the room of his Broadmoor Road home where those repairs were taking place. Id. at 141-142; 158.

Each repair lasted, at most, several weeks. Mr. Roekman has estimated that the total length of thfe Í965 repair was “five or six weeks.” Id. at 86. He has indicated that the 1973 apartment repairs lasted only “a week to ten days” and that the repairmen did not spend the full day working. Id. at 114. As to the work at Broadmoor Road in 1976, Mr. Roekman has stated that the first portion of the work, the ceiling repair, lasted one week and that the work in the dining room “was at least another week.” Id. at 147, 155. Additionally, as counsel for Union Carbide correctly noted at this Court’s July 6, 2017 hearing, the workmen hired by Mr. Rock-man did not work with the Georgia-Pacific joint compound for the entirety of those time frames. .Mr. Rockraan’s estimates were for the entire projects, not solely the amount of. time that the joint compound was applied and sanded. In fact, Mr. Rock-man has specifically stated that the sanding of the joint compound during the 1973 project only took about “five to six hours total.” Roekman Dep, Vol. II, p. 264, ECF No. 159-4.

'Although courts have held that a genuine issue of material fact existed as to “substantial factor” causation in similar bystander asbestos exposure cases, all of those cases^ are readily'distinguishable from the uniquely limited, exposures alleged by Mr. Roekman. This Court in Sherin v. Crane-Houdaille, Inc., 47 F.Supp.3d 280, 294-95 (D. Md. 2014), a recent, case also involving alleged “bystander” -exposure to Union Carbide ckrysotile asbestos in a Georgia-Pacific product, denied Union Carbide’s motion for summary judgment on the grounds that “a jury could reasonably infer that Union Carbide’s asbestos fiber was a substantial factor” in causing mesothelioma. In that case, a homeowner alleged that his deceased wife had contracted mesothelioma as a result of exposure to asbestos fibers inhaled during the construction of their home and while wаshing her husband’s clothing, which he had worn, to construction- sites as a carpet salesman. Id. at 282-83. This Court denied Union Carbide’s motion for summary judgment in that case because the alleged ex7 poshres lasted significantly longer than those reported by Mr. Roekman. The She-rins visited the construction site of .their home, where asbestos-containing products were allegedly, used, “every day for almost one year.” Id. at 283 (emphasis added). Additionally, Mr. Sherin visited “eight to ten.construction sites each month,” where he saw asbestos-containing products being used, and that his wife washed his clothes “for many years.” Id. (emphasis, added).

Similarly, the Court of Appeals of Maryland in Georgia-Pac. Corp. v. Pransky, 369 Md. 360, 800 A.2d 722, 726 (2002) upheld a jury verdict for the plaintiff on the basis that there were sufficient facts in the record to find that á child’s bystander exposure to a Georgia-Pacific asbestos-containing product was a “substantial factor” in causing her mesothelioma. Like Mr. Roekman, the child did not use an asbestos-containing product. Id. at 723-24. However, unlike Mr. Roekman, the child was “frequently in the basement” where her father was using the product to “convertí ‍‌‌​‌‌‌‌‌‌​​​​​‌​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​​‌‌​​​‌​‌‍] the unfinished basement into a recreation room.” Id. at 724 (emphasis added), Additionally, “[ejvidence was presented that the sanding [of the product] created a lot of dust, that [the child] was exposed to that dust when she was in the basement, and that the dust was picked up by the ventilation system and spread throughout the house.” Id. “Following completion of the work, [the child] played in the base ment and was further exposed to dust occasionally emanating from the compound on the ceiling for about another 10 years, until she left the home to go to college.” Id, (emphasis added).

As the Fourth Circuit has explained in Lohrmann, 782 F.2d at 1162-63, “[t]o support a reasonable inference of substantial causation from circumstantial evidence there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” Here, Mr, Rockman’s limited exposures to Georgia-Pacific joint compound during three short-term home repair projects in 1965, 1973, and 1976 were not a “substantial factor” in his developing mesothelioma, as a matter of law. Plaintiffs have identified no case involving bystander asbestos exposures as limited in “frequency,” “regularity,” and “time and distance proximity” as Mr. Rockman’s alleged exposures in this case. Accordingly, Georgia-Pacific’s Motion for Summary Judgment as to All Claims (ECF No. 159) is GRANTED. Judgment shall'be entered for Georgia-Pacific as to the remaining Counts One, Three, and Seven.

IV. Union Carbide’s Motion for Sum? .mary Judgment as to All Claims . (ECF No. 156) is GRANTED,

Mr. Rockman’s 1965, 1973, and 1976 home rеpair projects are equally insufficient to establish “substantial factor” causation with respect to Union Carbide. If Mr. Rockman’s limited exposures, to the joint compound product were not a “substantial factor” in his development of mesothelioma as a matter of law, then-his alleged exposure to Union Carbide Calidi-ra chrysotile asbestos, a minor ingredient in that product, was also not a substantial factor. As Union Carbide did not even sell Calidria to Georgia-Pacific until 1970, only the alleged 1973 and 1976 exposures are at issue. See Schutte Dep., pp. 115-116, ECF No. 1970. With respect to those two exposures, Union. Carbide Calidira asbestos made up less than 2% of the “Ready Mix” compound.- When Georgia-Pacific used Calidria in its- Ready Mix formula, the formula called for- оnly 1.62% Calidria asbestos (SG210) and 3.92% Philip Carey-supplied asbestos (7RF9), for a total chry-sotile asbestos content of 5.54%. See Ready Mix Formula, Milford, Virginia Plant, ECF No. 156-10.

Additionally, ,to the extent Plaintiffs are proceeding under a failure to warn theory, Union Carbide did not have a “duty to warn” as a matter of law. As this Court recently observed in the Sherin case, “ ‘[t]he existence of a legal duty is a question of law, ¡ to- be decided by the court.’” Sherin, 47 F.Supp.3d at 296 (quoting Gourdine v. Crews, 405 Md. 722, 955 A.2d 769, 775 (2008)). A “crucial” factor in determining whether a duty to warn exists is “foreseeability of harm.” Id. (citing Georgia Pac., LLC v. Farrar, 432 Md. 523, 69 A.3d 1028, 1033 (2013)). “Foreseeability of harm turns (1) on what ‘the supplier knew or had ‘reason to know’ ’ about the dangers of - asbestos when the warning should have been , given, and (2) whether ‘the defendant should- - have recognized’ that the plaintiff was ‘in a significant zone of danger.’ ” Id. (quoting Farrar, 69 A.3d at 1034). “There is no duty to warn, however, if the warning cannot feasibly be implemented or have practical effect,”' Id. (citing Farrar, 69 A.3d at 1039 (trial court erred in finding a duty to warn in 1968-69 because “there was no'practical way that any warning given by [the defendant] to any of the suggested intermediaries would or could have avoided' that danger”)) (emphasis added).

In the Shearin case discussed supra, Union Carbide also moved for summary judgment as to Plaintiffs’- “failure to warn theory.” Id. at 295-96. Based on the evidence in the record, this Court concluded that “a jury could reasonably infer that Union Carbide had ... ‘clear notice of the dangers of ‘take-home’ exposures’ before 1972.” Id. at 295. However, because “Mr. Sherin ha[d] not provided any evidence that better warnings by Union Carbide would have altered Mrs. Sherin’s take-home exposure,” this Court ultimately granted summary judgment for Union Carbide as to its duty to warn. Id. at 300. The Court specifically noted the attenuated chain of purchasers separating Union Carbide from Plaintiffs. “Union Carbide sold asbestos to product manufacturers, which sold finished products to suppliers-, the suppliers sold the products to contractors-, these contractors used the products that exposed Mrs. Sherin to asbestos at the new home and on Mr. Sherin’s clothing.” Id. at 300, n. 53 (emphasis added).

Just as in the Sherin case, Mr. Rockman was at least four steps removed from Union Carbide in this case. Union Carbide allegedly sold its asbestos product to Georgia-Pacific, Georgia-Pacific sold its joint compound to suppliers or retailers, those suppliers sold the product to the workmen hired by Mr. Rockman, then Mr. Rockman allegedly contacted the product .when it was used in his home. Union Carbide issued OSHA-compliant warnings to its customers, including Georgia-Pacific. See 1972 Warning, ECF No. 156-12. Additionally, its customers were sophisticated manufacturers of asbestos-containing products and are, accordingly, “held to the knowledge and skill of an expert” under Maryland law. See Garlock, Inc. v. Gallagher, 149 Md.App. 189, 814 A.2d 1007, 1023 (2003) (“‘[A]ll manufacturers are held to the knowledge and skill of an expert.’ ... [T]he state of the art knowledge of one asbestos manufacturing company was attributable to a second company in the same business at the same time.” (internal citation omitted)). As in the Sherin case, no evidence indicates that additional warnings by Union Carbide could have had a “practical effect” on preventing Mr. Rock-man’s alleged bystander exposures. See Farrar, 69 A.3d at 1039. For all of these reasons, Union Carbide’s Motion for Summary Judgment as to All Claims (ECF No. 156) is also GRANTED. Judgment shall be entered for Union Carbide as to the remaining Counts One, Three, and Seven.

CONCLUSION

For these reasons, 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 аlleged 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 Brody based on their underlying theory that “each and every” exposure to asbestos “cu-mulates” 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. 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 Rock-mans’ • 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, Judg ment shall be entered for Defendants as to the remaining Counts One, Three, and Seven agains't them.

A separate Order and Judgment follows.

Notes

1 . "Peritonea]” mesothelioma refers specifically to a cancer of the lining of the abdomen. See, e.g., Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 142, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003); 60 Am. Jur. Trials 73.

2 . Although Plaintiffs initially named an additional twenty-four Defendants in this action, they have since voluntarily dismissed all claims against those Defendants, including all Defendants with corporate citizenship in Maryland, thereby rendering this case removable based on "diversity of сitizenship” under 28 U.S.C. § 1332. See Memorandum Order, ECF No. 114 (granting Stipulations of Dismissal). Kaiser Gypsum Company, Inc. ("Kaiser Gypsum”) remains listed as a Defendant, but has subsequently filed a Suggestion of Bankruptcy (ECF No. 143) and is no longer participating in this case.

3 .- Dr. Brody has not offered a "specific causation” opinion in this case, but generally supports what has been repeatedly characterized as the "each and every exposure” theory of causation.

4 . Asbestos exposures are routinely measured in "fiber-years.” “ ‘Fiber-years’ are calculated by multiplying a worker’s duration of exposure (measured in years) by the average air concentration during the period of exposure (measured in number of fibers per cubic centimeter/milliliter of air).” Lee v. CertainTeed Corp., No. 5:13-CV-826-FL, 2015 WL 4526165, at *4 (E.D.N.C. July 27, 2015) (citing U.S. Dep’t of Health & Human Servs. Agency for Toxic Substances & Disease Registry, Tremolite Asbestos and Other Related Types of Asbestos, available ‍‌‌​‌‌‌‌‌‌​​​​​‌​​​​​​‌‌​​​‌​‌​‌‌​​​​​‌​​‌‌​​​‌​‌‍at http://www. atsdr.cdc.gov/asbestos/more-about-asbestos/ health-consultation/).

Case Details

Case Name: Rockman v. Union Carbide Corp.

Court Name: District Court, D. Maryland

Date Published: Jul 17, 2017

Citation: 266 F. Supp. 3d 839

Docket Number: Civil Action No.: RDB-16-1169

Court Abbreviation: D. Maryland