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

by Wilson Elser
Contact

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.

Discussion
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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.