Presentation on theme: "1 HAWKINS PARNELL THACKSTON & YOUNG LLP Challenging Expert Opinions: Every Fiber Does NOT Contribute Edward M. Slaughter Hawkins."— Presentation transcript:
1 HAWKINS PARNELL THACKSTON & YOUNG LLP Challenging Expert Opinions: Every Fiber Does NOT Contribute Edward M. Slaughter Hawkins Parnell Thackston & Young LLP Atlanta Austin Charleston Dallas Los Angeles St. Louis San Francisco
2 HAWKINS PARNELL THACKSTON & YOUNG LLP The Take Away Expert Causation Opinions can be successfully challenged The strategy has to begin with the facts I will give you a copy of any of the rulings
3 HAWKINS PARNELL THACKSTON & YOUNG LLP Challenging Expert Opinions: Every Fiber Does NOT Contribute Plaintiffs causation experts should be challenged when they lack: Some approximation of dose Epidemiology showing that dose is causative Facts showing the plaintiffs exposure matches the epidemiology
4 HAWKINS PARNELL THACKSTON & YOUNG LLP Changing Terminology The Single Fiber Theory Every Exposure above Background Every Special Exposure Every Identified Exposure Every non-trivial Exposure No Safe Level Every Exposure from someone with $$$
5 HAWKINS PARNELL THACKSTON & YOUNG LLP Legal Standards Re: DOSE Some approximate quantification of dose –What does Borg Warner mean anymore? Frequency, Proximity & Duration Substantial Factor contributing to the cause Substantial Factor increasing the risk All require a an approximation of dose
6 HAWKINS PARNELL THACKSTON & YOUNG LLP Clear evidence about product use Defense Industrial Hygienist Calculates Extremely Low Dose Exposure Calculates High Alternative Exposure No Plaintiff Industrial Hygienist to respond Plaintiffs causation expert has no foundation to estimate a dose or dose range The Ideal Expert Challenge Scenerio
7 HAWKINS PARNELL THACKSTON & YOUNG LLP Exposure Exposure Duration (work-years) Asbestos Concentration (f/cc) Cumulative Asbestos Exposure Dose (f/cc-years) LowHighLowHigh Cumulative Estimate of Vehicular Brake or Friction Work <0.25Average TWA = 0.04 <0.01 Ambient Lifetime Exposure 49-year lifetime equivalent Exposure Estimate at Current OSHA PEL Example of Friction Exposure
8 HAWKINS PARNELL THACKSTON & YOUNG LLP Challenging Expert Opinions: Every Fiber Does NOT Contribute Challenging Plaintiffs Industrial Hygienist opinions is a different presentation Challenging Plaintiffs Causation expert based on the lack of a reliable dose approximation And the lack of reliable epidemiology to support causation
9 HAWKINS PARNELL THACKSTON & YOUNG LLP Facts are the Key Plaintiffs exposure evidence has to be well developed at deposition Duration of the work done Number of times the work was done Some explanation how the product was manipulated to create dust The sort of facts that allow for a dose estimate
10 HAWKINS PARNELL THACKSTON & YOUNG LLP Expert Challenge Wins and Losses In Re: Asbestos Litigation (Pennsylvania) September 24, 2008 Rejected testimony based on the every exposure theory claimed methodology simply does not exist or is so convoluted and inherently contradictory so as to defy any comprehension.
11 HAWKINS PARNELL THACKSTON & YOUNG LLP Expert Challenge Wins and Losses Butler v. Union Carbide Corporation (GA) Trial court decision, June 29, 2010); affirmed June 15, 2011; cert denied October 17, 2011 Excluding the testimony of Dr. Maddox and characterizing the any exposure theory as at most, scientifically-grounded speculation: an untested and potentially untestable hypothesis.
12 HAWKINS PARNELL THACKSTON & YOUNG LLP Expert Challenge Wins and Losses Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588 (Tex. App. Dallas, August 26, 2010) Excluding each and every exposure testimony from Drs. Samuel Hammar, Arnold Brody and Richard Kronenberg.
13 HAWKINS PARNELL THACKSTON & YOUNG LLP Expert Challenge Wins and Losses Robertson v. Doug Ashy Building Materials, Case No , 19th Judicial District Court, East Baton Rouge, Louisiana (March 2, 2010). Striking testimony from Dr. Eugene Mark, that every fiber above background or every special exposure to asbestos was a substantial contributing factor to the causation of mesothelioma.  Reversed and remanded by Louisiana Court of Appeals on October 4, 2011, appeal to Louisiana Supreme Court in progress. 
14 HAWKINS PARNELL THACKSTON & YOUNG LLP Smith v. Kelly-Moore Paint Company, Case No CV, Court of Appeals, Second District of Texas, Fort Worth (February 25, 2010). Ruben v. Asbestos Corporation, Ltd., et al., Los Angeles Superior Court Case No. BC396559, Ruling On Motion In Limine By The Honorable Rita Miller (January 25, 2010). Daly v. Arvinmeritor, Inc., Case No , Circuit Court of the 17th Judicial Court, Broward County, Florida (November 30, 2009). Lena K. Degrasse v. Anco Insulations Inc., et al., No , in the Civil Dist. Court for the Parish of Orleans, Div. G, Section 11, Judgment on Motion In Limine (June 11, 2009). In Re: Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler LLC, in the Court of Common Pleas for the First Judicial District of Pennsylvania, Civil Trial Division, Control #084682, Findings, Memorandum and Order on Motion to Exclude Plaintiffs Causation Expert Testimony that Relies Upon Novel Scientific Evidence and Request for Evidentiary Hearing, Tereshko, A.L (September 24, 2008) Free v. Ametek, Cause No SEA, Superior Court, King County, State of Washington, p. 5 (February 29, 2008).
15 HAWKINS PARNELL THACKSTON & YOUNG LLP Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, (Tex. App. 2007), rehg overruled (Oct. 13, 2007), review denied (Feb. 22, 2008). In Re Asbestos, Cause No ,964 (Tex. Dist. Ct. July 18, 2007), Letter Ruling. Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, (Pa. 2007). In re W.R. Grace & Co., 355 B.R. 462, 474, 478 (Bankr. D. Del. 2006), leave to appeal denied, No. 07-MC-0005 RLB, , 2007 WL (D. Del. Mar. 26, 2007). In re Toxic Substance Cases, No. A.D , 2006 WL at *7-8 (Pa. Ct. Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., No CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007) (order granting Caterpillar Inc.s motion to exclude plaintiffs expert testimony); Summers v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. Ct. 2005), appeal granted, 897 A.2d 460 (Pa. 2006). Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006). In Re: Asbestos Litig., Cause No , Letter Ruling, Davidson J., 11th District Court; Harris County, Texas, January 20, Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), affd sub nom.