United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO EXCLUDE
L. ROBART, UNITED STATES DISTRICT JUDGE
the court are two motions to exclude filed by Defendant Scapa
Dryer Fabrics, Inc. ("Scapa"): (1) a motion to
exclude two expert witness testimonies on the subject of
exposure to asbestos fibers (Exposure Mot. (Dkt. # 681)); and
(2) a motion to exclude four expert witness testimonies on
the subject of causation (Causation Mot. (Dkt. # 683)).
Plaintiff Geraldine Barabin opposes both motions.
(See Exposure Mot. Resp. (Dkt. # 690); Causation
Mot. Resp. (Dkt. # 689).) The court has reviewed the
parties' filings in support of and in opposition to the
motions, the relevant portions of the record, and the
applicable law. The court also heard oral argument from the
parties at a Daubert hearing on February 6, 2018.
(See 2/6/18 Min. Entry (Dkt. # 695).) Being fully
advised, the court GRANTS in part and DENIES in part both of
Scapa's motions for the reasons discussed below.
matter began on December 18, 2006, when Plaintiffs Henry and
Geraldine Barabin (collectively, "the Barabins")
filed suit against various defendants for relief based on Mr.
Barabin's alleged exposure to asbestos through his
employment. (See Not. of Removal (Dkt. # 1)
¶¶ 2-4.) Between 1968 and 2001, Mr. Barabin worked
at the Crown-Zellerbach Pulp and Paper Mill in Camas,
Washington (the "Camas paper mill" or "paper
mill"). (See Causation MacKenzie Decl. (Dkt. #
684) ¶ 2, Ex. 1 ("Brodkin Rep.") at
12-15.) While there, he worked a variety of jobs,
some of which required him to manipulate dryer felts
allegedly manufactured by Scapa and original-defendant
AstenJohnson, Inc. ("AstenJohnson"). (See Id.
at 12-14; Not. of Removal ¶¶ 3-5.) For instance, he
changed dryer felts, cut the felt off pins and rollers, moved
felts throughout the mill, and cleaned the paper machines
with high pressure hoses. (Brodkin Rep. at 29.) Mr. Barabin
retired in 2001. (Id. at 15.)
October and November of 2006, Mr. Barabin was diagnosed with
malignant mesothelioma and subsequently underwent multiple
courses of chemotherapy. (Id. at 16, 29.) Mr.
Barabin passed away on March 30, 2012, due to mesothelioma.
(See Id. at 5.) An autopsy on March 31, 2012,
revealed malignant pleural mesothelioma in the right cavity
of the chest. (Id.)
case originally went to trial in November of 2009, and a jury
returned a verdict in favor of the Barabins. (See
Judgment (Dkt. # 355).) Scapa and AstenJohnson both appealed.
(See AstenJohnson Not. of Appeal (Dkt. # 554); Scapa
Not. of Appeal (Dkt. # 565).) The Ninth Circuit held that the
district court failed to make the appropriate determinations
under Daubert and Federal Rule of Evidence 702 in
allowing certain expert testimony. See Barabin v.
AstenJohnson, Inc., 740 F.3d 457, 464 (9th Cir. 2014)
(en banc). Accordingly, the Ninth Circuit remanded the matter
for a new trial. Id. at 467.
the retrial approaching, Scapa filed the motions-at-issue to
exclude various expert testimonies offered by Ms. Barabin
pursuant to Daubert and Federal Rule of Evidence
702. These testimonies fall into one of two categories: (1)
witnesses offered to show that Mr. Barabin was exposed to
asbestos from Scapa's dryer felts (see Exposure
Mot.); and (2) witnesses offered to show that Mr.
Barabin's occupational exposure to asbestos was a
substantial factor in causing his mesothelioma (see
Exposure Expert Testimonies
challenges two of Ms. Barabin's expert witnesses who will
testify to exposure: Mr. Christopher DePasquale and Dr.
Steven Compton. (Exposure Mot. at 1.)
Mr. Christopher DePasquale
DePasquale is a Senior Industrial Hygienist who conducts
industrial hygiene and indoor air quality investigations.
(Exposure MacKenzie Decl. (Dkt. # 682) ¶ 2, Ex. 1
("DePasquale Rep.") at 11.) In the field of
asbestos management and control, he has conducted asbestos
sampling in numerous settings and performed monitoring on
facilities to evaluate potential for exposure. (Id.)
For his testimony here, he reviewed deposition testimonies of
both parties, various interrogatory responses, and trial
testimonies of Mr. Barabin and previous expert witnesses.
(Id. at 15.)
DePasquale summarizes Mr. Barabin's occupational history
at the Camas paper mill, noting Mr. Barabin's various
roles at the paper mill that required interaction with dryer
felts. (Id. at 16-19.) He then opines that Mr.
Barabin "would have had significant exposures to
asbestos ... when he personally cut dryer felts, assisted in
the change-out of dryer felts, and when he or others used
compressed air to clean off dryer felts." (Id.
at 20.) Overall, Mr. DePasquale concludes that Mr.
Barabin's "exposures would have likely been in the
range of 0.1 to 5 [fibers/cubic centimeter] during the full
change out process, " with "peak exposures possibly
above this range during certain activities, such as the
cutting and folding of used dryer felts and/or clean up of
debris from these activities using compressed air."
(Id. at 22.) When Mr. Barabin was involved with the
blowing of dryer felts, Mr. DePasquale concludes that
"his exposures would have likely been 0.1 fibers/cc or
DePasquale based this exposure range on various studies that
analyzed asbestos fiber release from dryer felts. First, he
relies on a study by J.D. Wendlick analyzing samples
collected on April 16, 1973, at a paper mill during a dry end
felt change ("the Wendlick study")- (Id.
at 20.) The samples indicated that exposures during this one
task "ranged from 0.02 to 0.10 f/cc."
(Id.) Mr. DePasquale then cites Dr. James R.
Millette's studies, who analyzed the release of asbestos
fibers from dryer felts when blown with compressed air and
found concentrations "exceeding 30 f/cc."
(Id. at 20-21.) Another study conducted by Dr.
Millette found concentrations of asbestos at 51.4 f/cc.
(Id. at 21.) Mr. DePasquale also relies on a study
conducted by Materials Analytic Services ("MAS")
that discovered asbestos exposure of 12.4 f/cc for a person
cleaning dryer felts by blowing it with compressed air, 13.7
to 14.4 f/cc for the assistant of the task, and area samples
ranging from.6.6 to 8.0 f/cc. (Id.) Lastly, Mr.
DePasquale reviews the study by the RJ Lee Group ("the
RJ Lee study"), which blew compressed air on Scapa dryer
felts using a model paper machine and found exposure for the
worker ranged from 0.02 to 1.79 f/cc, with an average sample
result of 0.4 f/cc. (Id. at 21 -22.)
Dr. Steven Compton
Compton is a physicist and microscopist with experience in
testing "asbestos-containing products for fiber
release." (Exposure MacKenzie Deck ¶ 4, Ex. 3
("Compton Rep.") at 2.) He reviewed Mr.
Barabin's trial testimony, various interrogatory
responses, Mr. Barabin's occupational history, and other
expert testimonies presented in this case. (Id.)
Dr. Compton conducted microscopic examinations and fiber
release testing on a variety of textiles, including
"used and unused, as well as coated and uncoated"
dryer felts manufactured by Scapa. (Id.) Dr. Compton
examined these felts with polarized light microscopy
("PLM") and analyzed the debris released through
contact with these felts with scanning electron microscopy
("SEM"). (Id.) He performed various tests
to analyze the debris released through manipulation of dryer
felts. First, he conducted compressed air tests in a
"closed glove box chamber, " where air hoses with
60 psi compressed air were directed at two dryer felt pieces
for five minutes. (Id.) The released particles were
then collected. (Id. at 3.) Second, he collected air
samples after cutting dryer felt material in a closed glove
box. (Id.) Dr. Compton employed various methods to
analyze the collected air samples, including the National
Institute of Occupational Safety and Health
("NIOSH") Method 7400, the NIOSH 7402 procedure,
the International Standards Organization ("ISO")
Standard Method 10312, and the Asbestos Hazard Emergency
Response Act ("AHERA") Method. (Id.) These
tests revealed that "asbestos dryer felts will release
asbestos fibers when handled, regardless of manufacturer or
condition" and that "asbestos fibers can readily be
released into the air, especially when blown with compressed
air or when cut." (Id.) Dr. Compton concedes
that these studies were "not intended to replicate or
represent actual plant conditions where paper was being
made." (Exposure MacKenzie Decl. ¶ 5, Ex. 4
("Compton Dep.") at 57.) In fact, he has never been
to the paper mill (id. at 25), and he has no
knowledge about the conditions there, such as the amount of
water used, the level of ventilation, or the humidity
(id. at 53-54). However, he notes that Mr. Barabin
describes "the frequent installation and removal of
dryer felts" at the paper mill, which involved cutting
the felt and using compressed air "on a daily
basis" for cleaning purposes. (Compton Rep. at 2.)
Moreover, Mr. Barabin recounts how he "personally
handled, cleaned with compressed air, and cut dryer felts in
connection with his work." (Id.) Thus, despite
not having examined the specific felts used by Mr. Barabin,
Dr. Compton concludes that "the handling of
asbestos-containing dryer felts, cleaning with compressed
air, and cutting of dryer felts performed by Mr. [Barabin] .
. . would have released asbestos fibers into the air."
(Id. at 3-4.)
Causation Expert Testimonies
additionally challenges four of Ms. Barabin's expert
witnesses who will testify to causation: Dr. Carl Brodkin,
Dr. Allan Smith, Dr. David Tarin, and Dr. Richard Cohen.
(Causation Mot. at 1.)
Dr. Carl Brodkin
Brodkin practices occupational and environmental medicine.
(Brodkin Rep. at 56.) He holds an M.D. from University of
Colorado Medical School and an M.P.H. from the University of
Washington, School of Public Health. (Id. at 54.)
For his reports, Dr. Brodkin interviewed Mr. Barabin,
performed a medical examination on him, and reviewed his
medical records and interrogatory responses, including his
autopsy and post-mortem pathologic reports. (Id. at
2, 10.) He additionally interviewed Mr. Barabin's
treating physicians, reviewed various expert reports, and
considered interrogatory responses from Scapa. (See
Id. at 46, 50.) Lastly, Dr. Brodkin considered the
literature on occupational exposure to asbestos. (See
Id. at 41-45.)
initial report on February 26, 2007, Dr. Brodkin concluded
that Mr. Barabin's "most prominent exposure" to
asbestos came during his time as a paper mill worker.
(Id. at 31.) Mr. Barabin participated in various
tasks that resulted in "prominent direct exposure to
asbestos, " including his "regular manipulation of
wet and dry felts... with tugging, pulling, and cantilevering
of dry felts during fitting procedures." (Id.)
Analyzing Mr. Barabin's symptoms and the literature
around asbestos-related malignant mesothelioma, Dr. Brodkin
concludes that "Mr, Barabin's malignant pleural
mesothelioma was caused by his occupational exposure to
asbestos as a career paper machine worker and laborer, with
prior exposure to asbestos as a refinery laborer."
(Id. at 39 (internal parentheticals omitted).)
Specifically, Dr. Brodkin states that "Mr. Barabin's
cumulative exposures to asbestos-containing materials placed
him at significant risk for development of mesothelioma, with
a well-demonstrated dose-response associated with increasing
asbestos exposure." (Id. at 33.)
March 24, 2009, Dr. Brodkin submitted an updated report based
on additional clinical data and exposure-related reports,
including his review of information indicating that
Scapa-produced dryer felts contained chrysotile asbestos.
(Id. at 46, 50.) This additional information, Dr.
Brodkin concluded, "is fully consistent" with his
previous opinion that Mr. Barabin's mesothelioma is
"causally associated with occupational exposure to
asbestos as a career paper machine worker and laborer."
(Id. at 51.) Dr. Brodkin stated that the additional
exposure-related documents confirm "that dryer felts
represent an historically important source of respirable
asbestos exposure in pulp and paper mill settings . ..
[D]ryer felt material represents a component part of Mr.
Barabin's cumulative career asbestos exposure."
(Id. at 52.) Dr. Brodkin reiterates his conclusion
that Mr. Barabin's exposure to asbestos fibers through
the dryer felts "is a substantial contributing factor in
his development of malignant mesothelioma."
deposition, Dr. Brodkin was asked to clarify whether he
believed that "every exposure to asbestos above ambient
levels is a ... substantial factor, in causing a plaintiffs
asbestos-related disease." (Causation MacKenzie Decl.
¶ 3, Ex. 2 ("Brodkin Dep.") at 33.) He
rejected that belief, emphasizing "[t]hat statement does
not characterize my opinion." (Id.; see also
Id. at 34 ("It's not my opinion that [de
minimis exposures] would increase risk for
mesothelioma.").) Indeed, when faced with a hypothetical
where only one out of 100 dryer felts contained asbestos, Dr.
Brodkin stated he could not and would not reach a causation
conclusion. (Id. at 65-66.)
Dr. Brodkin explained that only an activity that would
"disturb the [asbestos-containing] material in such a
way to generate significant airborne asbestos fibers"
would increase the risk of an asbestos-related disease.
(Id. at 33-34.) He terms this exposure as a
"biologically significant exposure to asbestos" or
an "identified exposure." (Id. at 43-44.)
Thus, "a biologically significant exposure ... could
increase risk ... in a cumulative fashion with the total
asbestos exposure." (Id. at 44.)
Brodkin clarified that he could not express any opinion on
the actual quantitative level of asbestos fibers that Mr.
Barabin may have been exposed to because there were no
real-time measurements of asbestos at the paper mill to allow
a quantification. (Id. at 25.) Nevertheless, Dr.
Brodkin maintains that "[t]he paper-making activities
that Mr. Barabin participated in are a component part of his
cumulative exposure, among others, that resulted in
mesothelioma." (Id. at 44.) The activities that
Mr. Barabin participated in represented both a
"substantial part of his occupational history" and
a high "intensity of exposure." (Id. at
Dr. Allan Smith
Smith is a consultant in occupational and environmental
epidemiology. (Causation MacKenzie Decl. ¶ 4, Ex. 3
("Smith Rep.") at 2.) For his report, Dr. Smith
reviewed literature regarding asbestos exposure and its link
to mesothelioma and studies of asbestos diseases in the pulp
and paper mill industry. (See generally id.) Dr.
Smith states that the scientific evidence establishes that
"inhalation of asbestos dust is the main cause of
pleural mesothelioma" and that "[a]ll major
commercial fiber types of asbestos ... cause
mesothelioma." (Id. at 4.) In particular, Dr.
Smith points to studies of the paper mill industry that
documented malignant mesothelioma among workers.
(Id. at 5.) In his opinion, "all asbestos
fibers contribute to the causal dose." (Id. at
on the scientific evidence and Mr. Barabin's occupational
history, Dr. Smith concludes that Mr. Barabin's
mesothelioma was caused by the inhalation of asbestos dust.
(Id. at 6.) Dr. Smith posits that "[w]hen
someone gets mesothelioma from asbestos dust inhalation, all
the inhalation of asbestos containing dust up to about 15
years prior to diagnosis [of mesothelioma] contributed to the
dose that increased the risk and caused the cancer, "
(Id.) "The dose consists of all inhalations,
and all of it is therefore . . . significant."
(Id.) Dr. Smith affirmed in his deposition that
there is no minimum threshold level of exposure below which
asbestos does not cause mesothelioma. (Causation MacKenzie
Decl. ¶ 5, Ex. 4 ("Smith Dep.") at 23.)
Dr. David Tarin
Tarin is a professor of pathology and a distinguished member
of the University of California, San Diego Cancer Center.
(Causation MacKenzie Decl. ¶ 6, Ex. 5 ("Tarin
Rep.") at 11.) He reviewed Mr. Barabin's medical
records, numerous pathology specimens, and autopsy report, as
well as Mr. Barabin's occupational history. (Id.
at 2, 4.) Additionally, he reviewed various expert reports
and answers to standard asbestos case interrogatories.
(Id. at 5.) Dr. Tarin summarizes Mr. Barabin's
"long occupational history of exposure to asbestos
products as a paper machine worker and laborer from
1968-2001." (Id. at 6.) He describes how Mr.
Barabin engaged in "regular manipulation of wet and dry
felts, " including dry felt change-outs, fitting
procedures, and maintenance and replacement of brakes.
Tarin received 83 microscope slides containing tissue samples
collected from Mr. Barabin. (Id. at 8.) In some
samples, he observed features characteristic of the effect a
carcinogenic agent has on a target cell population.
(Id.) The immunohistochemical stains on the
specimens "showed results typical of a
mesothelioma." (Id.) Dr. Tarin also detected
six asbestos bodies among the tissue samples, which confirmed
that Mr. Barabin "had at some time been exposed to
airborne asbestos fibers." (Id.) The
microscopic identification of the asbestos bodies in the lung
tissue supports Dr. Brodkin's conclusions that Mr.
Barabin had experienced substantial occupational exposure to
asbestos fibers. (Id.) Dr. Tarin diagnoses Mr.
Barabin with malignant pleural mesothelioma of the
epithelioid cell type and dense fibrous tissue consistent
with pleural plaque. (Id.) This conclusion is
consistent with those reached by several other pathologists
who have examined Mr. Barabin. (Id.)
on his review of these materials, Dr. Tarin concludes that
"asbestos intake is the main cause of pleural
mesothelioma and that the cumulative exposure to all forms of
this carcinogenic agent contributes to the induction and
propagation of the tumor." (Id. at 9.) In Mr.
Barabin's case, there "is no record of alternative
rarer potential causes of this disease, such as extensive
thoracic radiation." (Id.) Accordingly, due to
Mr. Barabin's "substantial, repeated, and
sustained" exposure to asbestos fibers, Dr. Tarin
concludes, to a high degree of medical probability, that
"Mr[.] Barabin's malignant pleural mesothelioma was
caused by repeated occupational exposure to, and inhalation
of, asbestos dust." (Id.)
deposition testimony, Dr. Tarin emphasized that "the
cumulative load... is responsible for causation of the
disease." (Causation MacKenzie Decl. ¶ 7, Ex. 6
("Tarin Dep.") at 85-86.) The following exchange
occurred over causation associated with the individual
Q: [Y]ou don't apportion causation between ... the
various types of asbestos-containing materials that Mr.
Barabin might have encountered during his lifetime?
A: Could you be more specific, please?
Q: Sure ... [Y]ou're not going to come to court and
apportion causation for Mr. Barabin's alleged exposures
and saying that 20 percent of it came from thermal insulation
materials and 50 percent of it came from insulation on
equipment, are you?
A: I'm not going to be itemizing it like that. I will
continue with my explanation that it is the cumulative