An Echo of Boomer: DC Court Nixes Plaintiffs’ Adaptation of Expert Testimony to Fit Boomer Sufficiency Test

May 23, 2013

Wannall v. Honeywell Int’l. Inc., 2013 WL 1966060 (D.D.C.)
Earlier this year, the Virginia Supreme Court rejected the “substantial contributing factor” test for causation in asbestos cases. Ford Motor Co. v. Boomer, Record No. 120283, 2013 (Va., Jan. 10, 2013). In its place, the court required the plaintiff to prove that the exposure attributed to each specific defendant be sufficient by itself to cause the plaintiff’s disease. On May 14, the U.S. District Court for the District of Columbia applied Boomer. The court rejected the plaintiff’s attempt to reconfigure experts’ substantial-factor testimony to satisfy the sufficiency standard.

The Evidence
The plaintiff sued Honeywell for decedent John M. Tyler’s death from mesothelioma. He alleged that Tyler was exposed to asbestos when he beveled Bendix brake pads as an unlicensed mechanic working on his own cars and cars belonging to friends and family. Tyler was also exposed to asbestos while he served in the Navy and in other employment. The plaintiff conceded that the Naval and employment exposures were also causes of Tyler’s mesothelioma. Virginia law governed the plaintiff’s claims.

Honeywell moved for summary judgment before the Virginia Supreme Court decided Boomer and the Federal Asbestos Multidistrict Litigation (MDL) Court denied the motion. The MDL Court remanded the case to the Federal District Court for the District of Columbia for trial. Honeywell moved for reconsideration of its summary judgment motion in light of the Boomer decision.

The plaintiff attempted to meet Boomer with testimony from two expert witnesses. The primary causation witness was Steven Markowitz. In response to the initial summary judgment motion, plaintiff offered a declaration in which Dr. Markowitz testified that Tyler’s cumulative exposure to asbestos caused his mesothelioma; that there was no safe level of exposure to asbestos; and that brake dust, as a general matter, causes mesothelioma. On rehearing, the plaintiffs also presented a supplemental declaration by Dr. Markowitz in which he testified that every exposure to asbestos carries an increased risk of mesothelioma and, consequently, that all of Tyler’s asbestos exposures, including the exposures from Honeywell brakes, were “independently sufficient to cause mesothelioma in and of themselves.”

Plaintiffs also offered testimony by Dr. Jerrold Abraham, a pathologist who testified that if Tyler’s Naval exposure occurred in the absence of the brake exposures, he would opine that the Naval exposures caused the disease and, conversely, that if the brake exposures occurred without the Naval exposures, the brake exposures would have caused the disease.

The court excluded Dr. Markowitz’s supplemental declaration because it was untimely. The court, however, held that none of the expert testimony, including the excluded Markowitz declaration, meets the Boomer standard.

The Ruling
The court quickly rejected Dr. Abraham’s testimony, concluding that Dr. Abraham did not offer a causation opinion. Rather, Dr. Abraham provided “an opinion about a counterfactual, hypothetical situation” not present in the case.

Next, the court addressed Dr. Markowitz’s testimony. The plaintiffs argued that Dr Markowitz’s original opinion encompassed the Boomer sufficiency standard. The court rejected this argument, explaining that a substantial factor and a sufficient cause are two distinct concepts. The court illustrated this point with an analogy: An accelerant added to a fire might be a substantial factor in burning down a house, but without a fire the accelerant would not be sufficient to burn down the house.

The court then turned to the testimony in Dr. Markowitz’s supplemental affidavit, which was excluded, and held that this testimony, even if it were admitted, would not change the result. Dr. Markowitz’s sufficiency opinion was based on the concept that every exposure to asbestos carries an increased risk of mesothelioma. This reasoning, the court explained, confused risk with causation, which are distinct concepts. To say that an exposure posed a risk of disease is different from saying that the exposure caused the disease. To meet Boomer, the plaintiff had to go beyond risk and link the exposure to “a scientific benchmark for sufficiency.” The no-safe-dose opinion was not such a scientific benchmark.

Wannall arrives in the wake not only of Boomer, but of decisions by other courts rejecting the each-and-every-exposure theory. This trend was the subject of a Wilson Elser Alert released on February 21, 2013. In light of this trend, Wannall should be useful to defendants in cases around the country, not just where Virginia law is applicable.

The causation testimony at issue in Wannall is typical of what plaintiffs have used in other cases. The plaintiff’s experts did not offer a qualitative or quantitative evaluation of each exposure. Instead, they opined that all of the exposures caused the injury because all increased risk. This testimony invites the finder of fact to assign blame without differentiating among exposures. Of course, this gambit has served plaintiffs well. Freed from choosing targets based on the quantity or quality of the exposure, plaintiffs’ counsel retain wide latitude to train their sights on those solvent defendants who remain in the case at the time of trial.

Defendants should lay the foundation for applying Wannall and Boomer well before the case reaches the summary judgment phase. Use of properly crafted and supported Daubert (or Frye) motions is critical in efforts to establish a meaningful causation standard. To this end, defense counsel should enlist experts to assist in developing deposition questions that can be used to demonstrate the scientific shortcomings of the every-exposure theory. Counsel should also work with defense experts to develop affirmative evidence that will support motions to exclude plaintiffs’ expert testimony. By approaching the issue in a strategic and systematic manner, defense counsel should expand the list of jurisdictions that reject the every-exposure theory.

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