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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF ERIE
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`RALPH G. SCHAEFER, JR. and
`ADRIENNE C. SCHAEFER, his spouse,
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`Plaintiffs,
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`-against-
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`AIR & LIQUID SYSTEMS CORPORATION
`as successor by merger to
`BUFFALO PUMPS, INC. et al.
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`___________________________________________
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`MEMORANDUM OF
`LAW IN SUPPORT OF
`MOTIONS
`IN LIMINE
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`Index No. 817814/2018
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`PRELIMINARY STATEMENT
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`Defendant AIR & LIQUID SYSTEMS CORPORATION as successor by merger to
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`BUFFALO PUMPS, INC. (Hereinafter, “BUFFALO PUMPS”) by and through its attorneys,
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`WILBRAHAM, LAWLER & BUBA, P.C., respectfully submits this Memorandum of Law in
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`support of Defendant BUFFALO PUMPS’ motions in limine for an Order:
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`1. Precluding all evidence not disclosed during pre-trial discovery;
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`2. Excluding from trial any written report, oral testimony, or argument of counsel which
`voices the scientifically unfounded and legally invalid opinion that each and every
`exposure to asbestos sustained by an individual contributes to cause a later case of asbestos-
`related disease (and any substantially similar opinion, including but not limited to
`“cumulative affect” theory);
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`3. Compelling Plaintiffs to disclose to Defendant BUFFALO PUMPS the names of all settled
`parties (including the terms of all settlement agreements and the amount of each settlement)
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`and the names of all parties against whom Plaintiffs’ action has been voluntarily
`discontinued, because such information is material and necessary to Defendant BUFFALO
`PUMPS’ case;
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`4. Precluding the testimony of Dr. Castleman at the trial of this action because he is not
`qualified to offer opinions on the subjects about which he intends to testify;
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`5. Precluding Plaintiffs from offering at trial deposition testimony taken in any prior action
`in which BUFFALO PUMPS was not a party;
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`6. Precluding Plaintiffs from offering at trial any attorney, fact witness, or expert witness from
`presenting any evidence at trial of BUFFALO PUMPS’ conduct or knowledge post-dating
`Plaintiff’s last alleged exposure to a BUFFALO PUMPS product;
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`7. Excluding from evidence at trial the testimony of lay witnesses regarding asbestos content
`because such testimony lacks the required factual foundation to be permissible;
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`8. Precluding the Plaintiffs’ punitive damages claim because Plaintiffs have failed to present
`evidence of any conduct of BUFFALO PUMPS that rises to standard of behavior required
`for the recovery of punitive damages; and alternatively, should the Court decline to
`preclude Plaintiffs’ punitive damages claim, that the punitive damages portion of the trial
`be bifurcated with all evidence of BUFFALO PUMPS’ financial condition be excluded
`until the punitive damages portion of the trial;
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`9. Compel admission of Plaintiffs’ proofs of claims and any other documents filed in
`connection with claims made to bankruptcy trusts. Such forms are party admissions and
`must be admitted as evidence for the jury to consider with regard to the fault of all bankrupt
`entities;
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`10. Granting Defendant BUFFALO PUMPS the same relief sought by each and every motion
`in limine concerning non-diverse issues to be submitted by each and every Co-Defendant
`in this action, and each and every opposition concerning non-diverse issues filed by such
`Co-Defendants to any motion in limine by Plaintiffs in this action; and
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`11. Granting Defendant BUFFALO PUMPS such other and further relief as this Court deems
`just and proper.
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`STATEMENT OF RELEVANT FACTS
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`We respectfully refer the Court’s attention to the Affirmation of Jessica J. Burgasser, Esq.
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`(and attached exhibits A through X offered in support of Defendant BUFFALO PUMPS’
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`motions in limine), which is incorporated herein by reference in its entirety. [hereinafter
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`“Burgasser Aff.”].
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`ARGUMENT
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`POINT I
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`ALL EVIDENCE NOT DISCLOSED DURING PRE-TRIAL
`DISCOVERY SHOULD BE PRECLUDED
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`Plaintiffs had ample time to provide Defendant with copies of any evidence Plaintiffs intend
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`on presenting at trial to support their allegations as against Defendant BUFFALO PUMPS. Both
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`the New York CPLR and the Case Management Order regarding Asbestos Litigation require that
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`Plaintiffs’ counsel identify and disclose all evidence intended to be introduced at trial during the
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`pre-trial discovery.
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`In particular, New York CPLR 3101(a)(1) provides that “There shall be full disclosure of all
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`matter material and necessary in the prosecution or defense of an action, regardless of the burden
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`of proof, by a party, or the officer, director, member, agent or employee of a party.” As such,
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`Defendant BUFFALO PUMPS should be able to prepare for trial on the basis of the evidence that
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`Plaintiffs have disclosed regarding this matter. Absent good cause shown, Plaintiffs should be
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`limited to producing evidence disclosed through the court-mandated deadline for filing of Note of
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`Issue.
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`We respectfully submit that all other evidence should be precluded as it was not properly
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`disclosed and this Defendant lacked timely notice of such evidence and an opportunity to prepare
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`a defense to same.
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`POINT II
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`THE COURT SHOULD EXCLUDE FROM THE TRIAL ANY WRITTEN
`REPORT, ORAL TESTIMONY, OR ARGUMENT OF COUNSEL WHICH
`VOICES THE SCIENTIFICALLY UNFOUNDED AND LEGALLY INVALID
`OPINION THAT EACH AND EVERY EXPOSURE TO ASBESTOS SUSTAINED
`BY AN INDIVIDUAL CONTRIBUTES TO CAUSE A LATER CASE OF
`ASBESTOS-RELATED DISEASE (AND ANY SUBSTANTIALLY SIMILAR
`OPINION, INCLUDING BUT NOT LIMITED TO “CUMULATIVE AFFECT”
`THEORY)1
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`A basic tenet of fundamental tort law holds that a plaintiff must establish both general and
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`specific causation before a defendant can be held liable for a plaintiff's injury. Indeed, under
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`New York law, "[i]t is well established that an opinion on causation should set forth a plaintiff’s
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`exposure to a toxin, that the toxin is capable of causing the particular illness (general causation),
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`and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific
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`causation)." See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114
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`(2006).
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`The “each and every exposure” or “each and every breath” (hereinafter “E&E exposure” or
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`“E&E breath”) opinion, simply put, presents the easiest possible route to recovery for an asbestos
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`plaintiff against a defendant like BUFFALO PUMPS, a defendant whose liability rests on a “low-
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`dose” asbestos product. Many defendants, like BUFFALO PUMPS, are sued because they may
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`have incorporated some small encapsulated chrysotile asbestos-containing component part into a
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`larger piece of equipment. The typical allegation suggests that when the metal-bodied equipment
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`1 The opinion that each and every exposure to asbestos contributes to cause a later-diagnosed disease is also
`often expressed as "each and every breath of asbestos-containing air contributes," "each and every inhaled asbestos
`fiber contributes," or there is "no safe level" of asbestos exposure. Though the wording varies, the meaning does not.
`These opinions are, in reality, only one opinion, and it is properly excluded here.
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`was disassembled for various reasons, the asbestos-containing component was manipulated, some
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`level of exposure occurred, and sickness resulted. This action, involving allegations of this type of
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`exposure to gasket components during salvage performed on metal-bodied pumps supplied by
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`BUFFALO PUMPS and others, is representative. As seemingly all plaintiffs’ experts will admit,
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`epidemiological studies focusing on the risks posed by work with asbestos-containing gaskets
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`simply do not exist. If admitted, the E&E exposure opinion allows plaintiffs to bypass their
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`fundamental burden of establishing specific causation. Such a result is neither scientifically
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`proper nor legally permissible.
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`A number of Plaintiffs’ experts in this matter may come to trial attempting to establish the
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`Plaintiffs’ case for causation by voicing the opinion that E&E exposure to asbestos that Decedent
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`sustained caused his asbestos-related disease. Plaintiffs’ experts have set the stage for rendering
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`such opinions in this action through the submission of Plaintiffs’ trial witness designations.
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`(See, Burgasser Aff., Exhibit E).
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`As another court has noted, the "traditional defendant" in asbestos litigation has universally
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`entered bankruptcy, and the focus of the litigation has turned to an ever-growing collection of new
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`defendants. In re Asbestos Litig., 59 Pa. D. & C. 4th 62,65-66 (C.P. Philadelphia June 11, 2002).
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`The litigation has become, in the words of one plaintiff’s attorney, an "endless search for a solvent
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`bystander." Mark A. Behrens, Andrew W. Crouse, The Evolving Civil Justice Reform Movement:
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`Procedural Reforms have Gained Steam, but Critics Still Focus on Arguments of the Past, 31 U.D
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`DAYTON L. REV. 173,192 (2006).
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`Many of these newly targeted defendants, similarly to BUFFALO PUMPS, are sued because
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`they allegedly incorporated some small encapsulated chrysotile-containing component part into a
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`larger piece of equipment or industrial machinery. The instant action, involving allegations of
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`precisely this exposure to components associated with / within metal-bodied pumps allegedly
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`supplied by BUFFALO PUMPS and others, is representative. Thus, establishing causation
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`presents a plaintiff with several difficulties. As seemingly all plaintiffs' experts will admit,
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`epidemiological studies focusing on the risks posed by work with asbestos-containing gaskets
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`simply do not exist2. Further, the overwhelming weight of the valid scientific study of the fiber
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`release potential of gaskets shows very little potential for release at all.3 If admitted, the E&E
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`exposure opinion defeats these difficulties; causation need not even be addressed.
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`If E&E exposure is causal, as asserted by Plaintiffs’ experts, it does not matter whether the
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`exposure was five minutes spent in the vicinity of another worker removing packing from a pump
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`or valve, or twenty years spent removing amosite pipe insulation from steamlines – both are
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`equally to blame, and no considered explanation of why low-dose chrysotile exposures should be
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`viewed in precisely the same light as massive amphibole exposures is necessary. This assertion,
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`however, flies in the face of established sciences and law. “Asbestos-containing products do not
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`create similar risks of harm because there are several varieties of asbestos fibers, and they are used
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`in various quantities, even in the same class of product.” Goldman v. Johns-Manville Sales Corp.,
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`514 N.E.2d 691, 697 (Ohio 1987); see also 210 East 86 Street Corp. v. Combustion Engineering,
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`2An excerpt of Dr. Douglas Pohl's testimony to this effect from an April 5, 2007 deposition he provided in the matter of
`Pascale v. Bondex Int'I, Inc., et al, No. BC 345 910 in the Superior Court for the State of California, County of Los Angeles, 99:22-
`24 are attached as Exhibit J, Burgasser Aff.).
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`3Copies of the gasket and packing studies performed and published by Fred Boelter and Carl Mangold, Fred W. Boelter,
`et al, Airborne Fiber Exposure Assessment of Dry Asbestos-Containing Gaskets and Packings Found in Intact Industrial and
`Maritime Fittings, 63 AMERICAN INDUSTRIAL HYGIENE ASSOCIATION JOURNAL, 732 (2002) ("Boelter"); Carl
`Mangold, et al, An Exposure Study of Bystanders and Workers During the Installation and Removal of Asbestos Gaskets and
`Packing, 3 JOURNAL OF OCCUPATIONAL AND ENVIRONMENTAL HYGIENE 87 (2006) ("Mangold") are attached as
`exhibit L within Burgasser Aff. After studying gaskets and packing extensively under various working conditions, Mangold
`concluded, "The data from the samples collected during all activities associated with asbestos gasket and packing work indicate
`that the asbestos fibers released during these activities are considerably lower than the current 8-hour TWA permissible exposure
`limit of 0.1 f/cc, let alone all previous standards." See Mangold, 97. Boelter similarly concluded that even when manipulated in a
`completely dry state, asbestos-containing gaskets and packing produce "insignificant" fiber release - fiber release "well below the
`current OSHA PEL of 0.1 f/cc as sampled over an 8-hour TWA period" in all sample results obtained. Boelter, 739-40. 111.
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`Inc., et al, 821 F Supp. 125, 145 (S.D.N.Y. 1993) (“asbestos products…have widely divergent
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`toxicities, with some asbestos products creating a much greater risk of harm than others”) (internal
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`citations omitted); Matter of New York State Silicone Breast Implant Litig., 166 Misc.2d 85, 89
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`(Sup. Ct. N.Y. County 1995) (“asbestos is not a generic product made from one formula,” but
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`rather a product that is “manufactured from many different fibrous minerals, mined in different
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`locations. Each of these minerals has a different toxicity."). If admitted, the E&E exposure opinion
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`allows the jury to ignore this complex reality in deciding causation. Such a result is neither
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`scientifically proper nor legally permissible in New York.
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`A. THE E&E EXPOSURE OPINION IS LEGALLY INVALID.
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`If a plaintiff in an asbestos action presents, and the court accepts, the testimony of a witness
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`that each and every "above-background" exposure to asbestos causes a later disease, then the
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`plaintiff has effectively circumvented proving substantial factor causation. Even if certain disease
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`is only caused by asbestos exposure, that does not resolve the issue of whether a defendants’
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`product caused the disease. (See Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762, 782-783
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`[2014]). E&E testimony cannot substitute for the legally required evidence of causation -
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`evidence of a substantial, more than minimal exposure and a medical link between that exposure
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`and the disease contracted. See In re New York City Asbestos Litigation, Mary Juni, etc. v. A.O.
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`Smith Water Products Co., et al., 2017 NY Slip Op 01523 (1st Dept. 2017).
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`The opinion that E&E exposure to asbestos in an occupational setting contributes to cause
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`disease must be viewed not just from a scientific perspective, but from a legal one as well. The
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`E&E exposure opinion is the factual equivalent of an alternative legal scheme, that is, to permit it
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`to form the basis of a damages award is to permit a plaintiff to "end-run" New York's decision that
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`asbestos actions will NOT be governed by a scheme of alternative liability.
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`Rather, consistent with traditional principles of causation in tort law, it remains the case that a
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`plaintiff in an asbestos action must prove both exposure to an asbestos-containing product and that
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`this exposure was a substantial factor in causing his or her later asbestos-related disease:
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`This three-step process includes: (1) a determination of the plaintiff’s level of
`exposure to the toxin in question; (2) from a review of the scientific literature, proof
`that the toxin is capable of producing the illness, or general causation, and the level
`of exposure to the toxin which will produce that illness (i.e, the dose-response
`relationship) must be ascertained, and (3) establishment of specific causation by
`demonstrating the probability that the toxin caused the particular plaintiff's illness.
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`Parker v. Mobil Oil Corp., 16 A.D.3d 648,651,739 N.Y.S.2d 434,437 (2nd Dept. 2005) (emphasis
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`added). While it may be difficult to quantify a plaintiff’s exposure to asbestos, the Court in Parker
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`held that some quantification is necessary for a plaintiff to prove causation. Juni v. A.O. Smith
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`Water Products, No. 190315/12, 2015 WL 1840006 (N.Y. Sup. Ct. Apr. 13, 2015) (citing
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`Parker).The jury must make this determination with respect to each individual defendant. (Parker
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`at 648). The Court of Appeals reaffirmed that Parker is the relevant standard in these cases in Juni
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`v. A.O. Smith Water Products. Currently this case is unpublished. A copy of the Decision is being
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`provided to the Court as a courtesy with service of our motion.
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` Recently, the Court of Appeals enhanced its reasoning in Parker through Cornell v. 360 West
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`51st Street Realty, LLC, 22 N.Y.3d 762, 986 N.Y.S.2d 389, 9 N.E.3d 884 (2014). In Cornell, the
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`plaintiff sued for injuries allegedly due to exposure to dampness and mold in her apartment. Her
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`landlord moved to dismiss, asserting, among other claims, that plaintiff could not prove the mold
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`at issue could cause the injuries alleged, nor that it was the specific causation of her alleged
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`injuries, and sought to preclude plaintiff’s experts from testifying as to causation. Cornell, at 767,
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`768.
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`In her cross-motion for summary judgment in Cornell, the plaintiff relied on the expert opinion
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`of Dr. Eckardt Johanning, a Doctor of Environmental and Occupational medicine, to counter
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`defendant’s claims against general or specific causation. Plaintiff’s expert cited to, among several
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`documents, a report that stated mold by-products “may all have adverse effects to human[s],” a
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`report finding a link between a damp indoor environment and mold growth with respiratory
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`symptoms, and a study stating that mold levels in dust were associated with new-onset asthma.
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`Cornell, at 771, 772. The expert’s reports were discussed, in sum, to show that “a cause and effect
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`relationship between fungal exposure and respiratory disease is supported by epidemiological
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`studies.” Juni v. A.O. Smith Water Products, No. 190315/12, 2015 WL 1840006 (N.Y. Sup.Ct.
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`Apr. 13, 2015)( (discussing Cornell).
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`The Court found that plaintiff did not establish general causation, because the reports and
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`studies on which her expert relied “spoke in terms of ‘risk’ and ‘linkage’ and ‘association’ – not
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`causation.” Cornell at 783. Plaintiff’s expert equated association with causation, and departed from
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`the generally accepted methodology for evaluating epidemiologic evidence when determining
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`whether exposure to an agent causes disease. Id. Additionally, the Court found the plaintiff failed
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`to raise a triable issue as to specific causation, as Dr. Johanning made no effort to quantify
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`plaintiff’s level of exposure. Cornell at 784.
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`In a jurisdiction that rejects alternative liability in asbestos litigation and recognizes that
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`exposure and causation are two distinct elements the plaintiff must establish with respect to each
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`defendant, the E&E breath opinion cannot be recognized as legally sufficient evidence of
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`causation. See Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005) (holding that if
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`the opinion "that every exposure to asbestos, however slight, was a substantial factor in causing…
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`disease" were accepted, then "the Sixth Circuit's 'substantial factor' test would be meaningless");
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`Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 226-27 (Pa 2007) ("[W]e do not believe that it is a
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`viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how
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`minimal in relation to other exposures, implicates a fact issue concerning substantial-factor
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`causation in every 'direct-evidence' case.").
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`Precisely the opinion at issue here, Plaintiffs’ experts’ E&E exposure opinion has been held
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`legally insufficient to establish causation in asbestos actions throughout the country. In Gregg,
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`943 A.2d 216 (Pa 2007), the Supreme Court of Pennsylvania made it abundantly clear that to prove
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`causation against a defendant, a plaintiff in an asbestos action must present evidence of a
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`substantial, more than de minimis exposure to asbestos released from that defendant's product and
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`competent medical evidence linking that exposure to disease. The Supreme Court of Pennsylvania
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`found precisely this E&E exposure opinion scientifically unreliable and insufficient to establish
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`legal causation.
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`The Pennsylvania Supreme Court's decision in Gregg was anticipated by the thorough and
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`well-reasoned analysis of the E&E exposure opinion under Pennsylvania's Frye standard by Judge
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`Colville, the Judge who oversees all asbestos litigation in Pittsburgh, Pennsylvania. See In re
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`Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008 (C.P. Allegheny Aug. 17, 2006).
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`After conducting an extensive review of the opinion's scientific underpinnings, Judge Colville
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`found it to be unsupported by any generally accepted scientific methodology and nothing more
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`than the opinion of expert witnesses. Judge Colville wrote with respect to the E&E exposure
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`opinion, "This kind of expert opinion is simply not admissible in Pennsylvania courts," Id. at *2
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`n.5.
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`Recently, the Sixth Circuit rejected the experts’ use of the “any fiber,” “any exposure”: theory
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`in its decision in Moeller v. Garlock Sealing Technologies, LLC, issued on Sept. 28, 2011, 660
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`F.3d 950, 2011. Olwen Moeller was a pipefitter who worked with Garlock's asbestos-containing
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`gaskets from 1962 to 1970. But he also sustained significant exposure to asbestos insulation made
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`by others during and even beyond those years. Prior to Mr. Moeller's death from mesothelioma in
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`2008, he and his wife sued Garlock and others alleging exposure to the gaskets was a substantial
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`factor in causing his death.
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`On causation, plaintiff presented the "any exposure" testimony of Arthur Frank, a physician
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`who sub-specialized for 40 years in the study of occupational exposure to asbestos. Garlock's
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`expert, James Crapo, a pulmonologist, testified that the particular type of fiber in the gaskets could
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`not have caused the mesothelioma. Rather, asbestos exposure from the insulation was far more
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`severe than any exposure from gaskets. Garlock moved for a directed verdict arguing that plaintiff
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`did not prove the gaskets were a substantial cause but the judge submitted the case to the jury
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`which answered the strict liability question "no" and the negligence question "yes." The jury
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`awarded $516,000.
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`On appeal, after a careful review of the record, the U.S. Court of Appeals for the Sixth Circuit
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`agreed that plaintiff "failed to prove that Garlock's product was a substantial factor in bringing
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`about the harm." Dr. Frank testified only that all types of asbestos can cause mesothelioma and
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`that "any asbestos exposure counts as a 'contributing factor.'" The appellate court concluded such
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`testimony does not establish that exposure to Garlock gaskets in and of itself was a "substantial"
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`factor in causing the mesothelioma. Quoting from the Sixth Circuit's prior Lindstrom case, the
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`panel observed that a plaintiff "must show a high enough level of exposure that an inference that
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`the asbestos was a substantial factor in the injury is more than conjectural."
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`New York rejects alternative liability in asbestos litigation, recognizing that exposure and
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`causation are distinct elements in such cases, and further rejects any contention that the E&E
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`exposure opinion is sufficient to support a jury's finding of causation. See Parker, 16 A.D.3d at
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`651,739 N.Y.S.2d at 473. Accepting expert theory that a cumulative, unquantified exposure proves
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`causation means that:
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`If [Plaintiff] was exposed to asbestos dust when working on one product at one time in his
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`decades-long career, that exposure would be considered just as likely to cause mesothelioma
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`as his greater and more frequent exposures to asbestos dust from other products…such a notion
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`is contrary to accepted science.” Juni v. A.O. Smith Water Products, 2015 NY Slip Op
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`25125 (N.Y. Sup. Ct. Apr. 13, 2015).
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`To permit plaintiffs to introduce such an opinion would contravene the fundamental tort law
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`requirement of causation and allow testimony into this trial which could not possibly be less
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`relevant or more prejudicial. The E&E exposure opinion has one purpose - to establish the legally
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`required element of causation. Under the noted law, this opinion is clearly insufficient to do so.
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`Allowing it to enter this action would serve no useful or legally permissible purpose, and it is
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`properly excluded on relevance grounds. See Davis, 43 N.Y.2d at 27, 400 N.Y.S.2d at 740.
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`Further, the E&E exposure opinion is far more prejudicial than probative (as noted, it has no
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`probative value), and is properly excluded. See Davis, 43 N.Y.2d at 27, 400 N.Y.S.2d at 740. The
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`E&E exposure opinion is prejudicial evidence because it is selective in its simplicity. Once the
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`jury hears it, the jury will be unlikely to engage in any critical assessment of the exposure and
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`medical evidence adduced to assess causation as it is to do under the law. Rather, the jury will very
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`likely accept the invitation of the plaintiffs’ medical experts and take the much easier route to a
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`finding of causation. This Court does not properly discharge its duty as evidentiary gatekeeper by
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`permitting such a result; this Court fulfills its duty by excluding the E&E exposure opinion from
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`this action.
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`B. THE E&E OPINION IS SCIENTIFICALLY INVALID
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`Although the E&E exposure opinion is legally insufficient to prove causation and properly
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`excluded solely on the grounds of relevance and undue prejudice, it is also subject to the close
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`scrutiny New York gives novel scientific opinions. The test, in New York, for determining the
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`reliability, and therefore, the admissibility, of expert testimony and opinion was first enunciated
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`by the Court of Appeals for the District of Columbia in Frye v. United States, 293 F. 1013 (D.C.
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`Cir.1923). The Court ruled that before any expert is permitted to express an opinion or conclusion,
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`''the thing from which the deduction is made must be sufficiently established to have gained general
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`acceptance in the particular field to which it belongs." Id. Under the Frye test, this Court
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`performs a gatekeeper function by making an initial determination as to whether or not the basis
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`of expert opinion has gained sufficient general acceptance in a particular field in order to be
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`considered reliable, and to justify admission at trial. A court is required to conduct an inquiry,
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`concerning general acceptance, pursuant to Frye, where a party seeks to rely upon novel scientific,
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`technical or other concepts involving expertise. See People v. Wernick, 89 N.Y.2d 11 1, 651
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`N.Y.S.2d 392 (1996); Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 183, 775
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`N.Y.S.2d 2 (1st Dep't 2004).4 The Plaintiffs cannot successfully bear these burdens. The E&E
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`4 The U.S. Supreme Court has articulated four factors relevant to determining the reliability of an expert’s reasoning or methodology: (1)
`whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication;
`(3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and
`(4) whether the theory or method has been generally accepted by the scientific community. Toomey v. Millercoors LLC, 86 F. Supp.3d 202, citing
`Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) Although these factors are not exclusive and are to be applied flexibly, the court must
`make certain that an expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant
`field. Toomey, 86 F. Supp.3d at 207, citing Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). While the line of analysis under Toomey
`employs the Daubert standard, the Court’s analysis and descriptions of the expert’s background and methodology are certainly relevant to a Frey
`test. Much like proffered expert in Toomey was scrutinized and precluded based on speculative nature of his ‘expert opinion,’ the instant
`Plaintiffs likewise cannot successfully survive such scrutiny.
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`exposure opinion has already been found novel and subjected to rigorous Frye review in multiple
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`states on a number of occasions. It has not survived scrutiny.
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`1. THE E&E EXPOSURE OPINION HAS NOT SURVIVED SCIENTIFIC SCRUTINY IN
`THE REST OF THE NATION.
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`In addition to labeling the E&E exposure opinion "fiction," the Supreme Court of Pennsylvania
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`wrote that it is not "reasonably developed scientific reasoning,” and it cannot properly "support
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`the conclusion that the product sold by the defendant was a substantial factor in causing the harm."
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`Gregg, 943 A.2d, at 227. This was precisely the conclusion reached following a 2006 Frye hearing
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`on the method, or lack thereof, underlying the opinion that each and every "above-background"
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`exposure is equally implicated in causing a later mesothelioma. In 2006, the Judge responsible for
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`all asbestos litigation in Pittsburgh, Pennsylvania, Judge Colville, carefully examined and
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`ultimately excluded as scientifically invalid the opinion that "every single exposure to every
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`asbestos product is a proximate cause of a subsequently diagnosed asbestos-related disease." In re
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`Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008, at *1 (C.P. Allegheny Aug. 17,
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`2006).5
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`Although Judge Colville found the E&E exposure opinion to be of a kind that is not admissible
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`in Pennsylvania, the precisely same opinion was presented to the Court of Common Pleas of
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`Indiana County in a Frye hearing conducted by that court on February 2, 2007. Basile v. Am.
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`Honda Motor Co., No. 11484 CD 2005, 2007 WL 712049 at *2, 2007 Pa. Dist. & Cnty. Dec.
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`LEXIS 444 (C.P.Indiana, Mar. 1, 2007). The opinion once again could not survive scientific
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`5A copy of the opinion that emerged from Judge Colville's Frye hearing is attached as Exhibit L, Burgasser Aff.
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`scrutiny. After reviewing the E&E exposure opinion, Judge Olson held that it is not supported by
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`any methodology, let alone a generally accepted one. Id. at *5. He excluded it from evidence
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`accordingly. Id. at *5-6.
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`The rulings of Judge Colville and Judge Olson are well-considered ones when viewed from a
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`scientific perspective. However, it is also worth noting that the opinion that E&E exposure to
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`E&E asbestos fiber contributes to cause a later asbestos-related disease (or a variant thereof) is, as
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`a number of courts have pointed out, an opinion supported by neither science nor common sense:
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`Just because a hired expert makes a legal conclusion does not mean that a trial judge
`has to adopt it if it is not supported by the record and is devoid of common sense.
`For example, the plaintiff’s liability expert used the phrase, "Each and every
`exposure to asbestos has been a substantial contributing fa