Elorreaga v. ABB, Inc.

Background

Roberto Elorreaga originally filed the lawsuit in state court, alleging that he developed malignant pleural mesothelioma after exposure to asbestos-containing products or equipment while working aboard United States Naval vessels and in Naval shipyards. After Mr. Elorreaga died in October 2021, his wife and sons continued pursuing the case. Plaintiffs allege that defendants manufactured or supplied the asbestos-containing equipment with which he worked.

Defendants moved to exclude the testimony of four plaintiffs’ experts: Dr. Brent Staggs, Jerome Spear, Dr. Allan Smith, and Dr. Barry Horn. Defendants argued that the experts did not provide sufficiently specific opinions about the amount or duration of Mr. Elorreaga’s exposure to particular defendants’ products and instead relied on an improper “every exposure” or “cumulative dose” theory.

Legal standard

Federal Rule of Evidence 702 permits qualified expert testimony when the expert’s specialized knowledge will help the factfinder, the testimony is based on sufficient facts or data, the methods are reliable, and the expert reliably applied those methods to the case. The court explained that expert testimony must be relevant and reliable. It also applied federal maritime law because the pertinent work occurred aboard Navy ships at sea or under repair at a shipyard.

Under the Ninth Circuit’s substantial-factor test, plaintiffs must establish that exposure to defendants’ products was a substantial contributing factor in causing Mr. Elorreaga’s illness. Evidence may address the amount or duration of exposure, and minimal exposure is insufficient. The court explained that the Ninth Circuit rejected an “every exposure” theory that treats every asbestos exposure above background levels as necessarily a substantial factor, without considering the severity of the exposure or the portion attributable to a particular defendant’s materials.

Analysis

Dr. Staggs. The court found that Dr. Staggs did not appear to rely on the rejected theory. His report expressly stated that he did not consider every contributor to a person’s cumulative asbestos dose, no matter how small, to be a significant factor. He distinguished trivial from significant exposures and considered proximity, frequency, regularity, and dose. Although his report did not detail those factors for every specific product, the court found that qualitative exposure assessments were not barred. Defendants could challenge the factual assumptions through cross-examination.

Mr. Spear. Mr. Spear conducted a qualitative rather than quantitative exposure assessment because neither Mr. Elorreaga nor the ships had been monitored when the alleged exposures occurred. He relied on existing data, historical facility information, worker interviews, and professional judgment. His report considered Mr. Elorreaga’s work on pumps, steam traps, valves, and gaskets; dust-producing activities; studies measuring asbestos released during those activities; and the amount of time Mr. Elorreaga performed the work. The court found that Mr. Spear identified significant sources of exposure and did not simply conclude that every exposure substantially caused the disease. The court also noted that his supplemental report supplied more specific exposure-range estimates based on additional deposition testimony.

Dr. Smith. Dr. Smith, an epidemiologist, offered general-causation opinions about asbestos causing mesothelioma and about different asbestos fiber types. The court found that testimony relevant even though some defendants did not dispute that asbestos caused Mr. Elorreaga’s disease, because general causation evidence could help jurors understand the issue. The court also found no basis to conclude that Dr. Smith would offer an improper “every exposure” theory. His statements that asbestos inhalation adds to dose and increases risk did not establish that he would replace the substantial-factor test with an every-exposure rule. The court declined to exclude his testimony based on speculation about testimony he might offer at trial.

Dr. Horn. Dr. Horn, a pulmonologist, testified that mesothelioma is dose-dependent and that greater asbestos exposure increases the likelihood of disease. But he rejected the idea that every exposure contributes to mesothelioma and called the notion that a single fiber could cause the disease “nonsense.” The court found that he considered the nature of the work and the amount of asbestos released during that work, rather than relying on an every-exposure theory. The court also found that qualitative assessments of specific exposures could assist the factfinder, even without precise measurements for each defendant’s product.

Disposition

The court DENIED the motions to exclude the testimony of the plaintiffs’ experts. The denial was without prejudice to defendants’ ability to seek exclusion at trial if an expert actually crossed the line into advancing an “every exposure” theory or offered an opinion that was not timely and adequately disclosed under Federal Rule of Civil Procedure 26(a). The court entered the order without oral argument. Judge Haywood S. Gilliam, Jr. signed the order.