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Barabin v. Scapa Dryer Felts, Inc.

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

March 30, 2018

GERALDINE BARABIN, Plaintiff,
v.
SCAPA DRYER FELTS, INC., et al., Defendants.

          ORDER EXCLUDING DR. ADRIAN BRODY'S TESTIMONY

          JAMES L. ROBART, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This order memorializes the court's March 28, 2018, oral ruling on the admissibility of Plaintiff Geraldine Barabin's expert witness, Dr. Arnold Brody. (See 3/28/18 Min. Entry (Dkt. # 733).) Defendant Scapa Dryer Felts, Inc. (“Scapa”) argued that Dr. Brody's testimony would be needlessly cumulative of other expert testimony already presented by Ms. Barabin. (See 3/27/18 Min. Entry (Dkt. # 728).) The court considered the parties' arguments made during trial, the relevant portions of the record, and the applicable law. In its oral ruling, the court EXCLUDED Dr. Brody's testimony in its entirety. (3/28/18 Min. Entry.) This written order memorializes the court's oral ruling.

         II. BACKGROUND

         A. Expert Testimony Presented at Trial

         On March 27, 2018, Ms. Barabin presented testimony from Dr. Carl Brodkin, a physician in occupational and environmental medicine. (See 3/27/18 Min. Entry.) As part of his testimony, Dr. Brodkin spoke at length about the impact of asbestos on the body. He testified about the body's natural defenses against fiber inhalation, such as structures to capture fibers; mucus in the respiratory tract; and cilia structures that capture and clear fibers through the mucociliary escalator. Despite these respiratory defenses, Dr. Brodkin opined, fibers can access the lung and the pleura and persist there for years, leading to disease.

         Dr. Brodkin then described how asbestos fibers in lung tissue lead to asbestosis: inflammation attempts to destroy the foreign body, but because asbestos fibers are persistent, the continued inflammation causes scarring of the lung and pleura plaques- scarring on the lining of the lung-which then impedes the ability of oxygen to diffuse from the air sacs into the capillaries. Dr. Brodkin explained how asbestos fibers may lead to cancer by describing how asbestos fibers can enter the cell, directly damage genetic material, and cause a condition called aneuploidy-disruption of cell division, such that chromosomes do not divide evenly during mitosis. He articulated that the repeated errors in cell division eventually become so abnormal that the cell loses control of its cell division, ultimately resulting in carcinogenesis or cancer. The uncontrolled cell growth, Dr. Brodkin attested, causes tumor masses.

         Dr. Brodkin described mesothelioma as the uncontrolled cell growth of the pleura, leading to thickening throughout the pleural lining of the lung that crowds out the normal lung tissue, leading to respiratory insufficiency and death. He testified that there is no cure for malignant mesothelioma; instead, only palliate treatments are available to lessen the impact of the symptoms and slow down the progression of the disease. Dr. Brodkin also stated that mesothelioma is a dose-response disease, which means that the greater the dose, the greater the risk for developing the disease.

         B. Dr. Brody's Expert Report

         Dr. Brody outlined the opinions that he would testify to in his expert report. (Brody Rep. (Ex. 5) at 1.) His report states that he will generally testify about the impact of asbestos on human and animal lungs, including “the deposition patterns of inhaled fibers, ” the “impact upon cells of all forms of asbestos, ” and “their ability to induce genetic damage and disease.” (Id.) Dr. Brody has not reviewed Mr. Barabin's records, examined Mr. Barabin or any of his specimens, or offered any conclusion specific to Mr. Barabin. (See generally id.)

         Dr. Brody includes several opinions regarding the “basic fundamental biology and pathology concerning asbestos-related disease.” (Id. at 3.) First, he concludes that asbestos fibers must be inhaled to cause disease, and once they are, they can be deposited along the respiratory tract. (Id. at 1.) Dr. Brody describes the body's “natural defenses that attempt to expel foreign materials, ” including cilia structures that “form a mucociliary escalator” that attempts to remove materials out of the lung. (Id. at 1-2.) However, Dr. Brody explains, not all particles can be effectively expelled by the body's natural defenses, and thus, some fibers remain in the lungs. (Id. at 2.)

         Dr. Brody further concludes that asbestos fibers cause scarring because macrophages, cells that are designed to clear the lungs, attempt to move the fibers out of the lung and release “peptide growth factors that cause scar tissue” to develop. (Id.) This scar tissue thickens the membrane and thus compromises the diffusion capacity of the lung, such that the “oxygen-carbon dioxide exchange cannot take place efficiently.” (Id.) Dr. Brody explains that asbestos fibers can also lead to “pleural plaques, which are discrete scars located at the pleural surface.” (Id.)

         Dr. Brody additionally explains how “asbestos fibers also cause damage to DNA such that chromosome integrity is compromised [known as aneuploidy].” (Id.) Aneuploidy leads to the development of lung cancer and mesothelioma because of “the accumulation of multiple errors in a series of genes that control cell growth.” (Id.)

         Finally, Dr. Brody opines that asbestosis is not treatable or curable; instead it can be a progressive disease, getting worse after exposure has ceased. (Id.) He states that asbestos-related diseases are ‚Äúdose-response diseases, meaning that the more one ...


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