The U.S. District Court, District of Columbia in Wannall v. Honeywell International, Inc., Civil Action No. 10-351 (BAH), recently granted Honeywell International’s motion to reconsider the previous denial of its motion for summary judgment. In this case, the motion for reconsideration was primarily based on the intervening decision in Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013), in which the Supreme Court of Virginia invalidated the “substantial contributing factor” test as an appropriate representation of proximate cause under Virginia tort law. U.S. District Judge Beryl Howell also struck a portion of the plaintiff’s revised expert report after it determined that the plaintiff’s submission of additional testimony from its expert was filed after Honeywell’s reconsideration motion and the Boomer decision and was untimely and unwarranted.
The lawsuit brought on behalf of deceased plaintiff John Tyler, who allegedly suffered from malignant pleural mesothelioma. The allegations were that the defendant’s automobile brakes, containing chrysotile asbestos fibers, caused the decedent’s cancer. Defendant Honeywell stipulated that while the evidence was clear that the decedent performed “shade tree” automobile repairs, the exposure to the automobile brakes was at issue. Further, the decedent’s work history included exposure to asbestos while in the Navy and as a trades helper at Fort Belvoir, which the plaintiff conceded. This matter was originally filed in D.C. Superior Court in 2009, removed to the U.S. District Court of the District of Columbia in 2010 and in 2011 transferred to the Eastern District of Pennsylvania (the MDL court). While pending in the MDL court, Honeywell moved for summary judgment on the plaintiff’s claims, which was denied citing the testimony of plaintiff’s expert Dr. Steven Markowitz, who opined Tyler’s exposure to asbestos vis-à-vis brake exposure “was significant and contributed to his over-all exposure.” The MDL court maintained that the plaintiff raised a genuine issue of fact concerning Honeywell’s products. The case was ultimately remanded back to the Washington District Court following the conclusion of all pretrial proceedings.
After the case was sent back to Washington, D.C., the Virginia Supreme Court ruled on Boomer , an appeal “of a jury verdict against Honeywell…and Ford Motor Company for the wrongful death of James D. Lokey, caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles.” Boomer , 736 S.E.2d at 726. The Virginia court held that plaintiffs in asbestos suits must offer evidence that exposure to a product was enough, in and of itself, to cause an injury. It also held that experts must reveal what level of asbestos exposure can cause mesothelioma. Judge Howell relied on Boomer in ruling on the motion for reconsideration as the similarity between the two matters is patently obvious.
In opposition to the motion for reconsideration, among the arguments, the plaintiff provided new statements from Dr. Markowitz to support their position, which was offered after Boomer and the filing for reconsideration. Since some of what Dr. Markowitz opined was clearly a response to the new law and motion, Honeywell filed a motion to strike the declaration as both untimely and conflicting with Dr. Markowitz’s prior opinions. Judge Howell concluded that plaintiff’s new submission by Dr. Markowitz was neither timely nor substantially justified to eschew F.R.C.P. 37, Failure to Make Disclosures or to Cooperate in Discovery and granted the motion to strike. Judge Howell also determined that Dr. Markowitz’s opinion was insufficient to create a genuine issue of material fact as to factual causation under the standard set in Boomer .
Judge Howell is relying upon the new case law, noted that Boomer does not allow a medical expert to offer an “ad hoc opinion on the sufficiency of a particular exposure,” when the expert forms an opinion without a “scientific benchmark for sufficiency.” In the late issued report, plaintiff’s expert, Dr. Markowitz fails to provide any “‘level of exposure [that] is sufficient to cause mesothelioma.’” Therefore, even if Dr. Markowitz’s opinion was timely, and therefore admissible, his opinion as offered is insufficient under Boomer to create a genuine issue of material fact. Accordingly, the court granted Honeywell’s motion for reconsideration regarding its motion for summary judgment.