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Barabin v. Scapa Dryer Fabrics, Inc.

United States District Court, W.D. Washington, Seattle

February 12, 2018

GERALDINE BARABIN, Plaintiff,
v.
SCAPA DRYER FABRICS, INC., Defendant.

          ORDER ON MOTIONS TO EXCLUDE

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND

         This 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.)[1] 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").[2] (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.)

         In late 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.)

         This 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.

         With 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 Causation Mot.).

         A. Exposure Expert Testimonies

         Scapa challenges two of Ms. Barabin's expert witnesses who will testify to exposure: Mr. Christopher DePasquale and Dr. Steven Compton. (Exposure Mot. at 1.)

         1. Mr. Christopher DePasquale

         Mr. 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.)

         Mr. 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][3] 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 greater." (Id.)

         Mr. 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.)

         2. Dr. Steven Compton

         Dr. 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.)

         Additionally, 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.)

         B. Causation Expert Testimonies

         Scapa 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.)

         1. Dr. Carl Brodkin

         Dr. 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.)

         In his 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.)

         . On 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." (Id.)

         At his 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.)

         Instead, 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.)

         Dr. 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 44-45.)

         2. Dr. Allan Smith

         Dr. 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 4.)

         Based 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.)

         3. Dr. David Tarin

         Dr. 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. '(Id.)

         Dr. 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.)

         Based 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.)

         In his 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 exposures:

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 ...

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