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Filing # 129358559 E-Filed 06/23/2021 03:05:39 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
JOE CARL ROGERS and
HILDA ROGERS, his wife,
GENERAL JURISDICTION DIVISION
CASE NO.: CACE-19-025692
Plaintiffs,
V
ACOUSTI ENGINEERING COMPANY
OF FLORIDA; et al.
Defendants.
i
J-M MANUFACTURINGCOMPANY INC.'S MOTION IN LIMINE TO EXCLUDE
THE "EVERY EXPOSURE" CAUSATION OPINION
(J-MM Motion in Limine No. 16)
Defendant, J-M Manufacturing Company, Inc. (hereinafter "J-MM" or "Defendant") by
and through the undersigned counsel, and submits this Motion to Exclude the "Every Exposure"
Causation Opinion. J-MM moves this Honorable Court to exclude Plaintiffs' expert witnesses
from testifying at trial or, in the alternative, to limit each experts' testimony to the extent it does
not meet the standards for admissibility as set forth § 90.702, Fla. Stat., § 90.704, Fla. Stat.
and/or under Daubert v. Merrell Dow Pharm., lnc.land its progeny. J-MM also moves for an
Order excluding any written evidence, oral testimony, or argument of counsel that each and
every exposure to asbestos above background levels increased the risk that Joe Carl Rogers
would develop mesothelioma.
Defendant further states:
1.
This action is currently set on the docket commencing August 2, 2021, however
may be continued or rolled due to circumstances created by the pandemic.
1 509 U.S. 579,113 S.Ct. 2786,125 L.Ed.2d 469 (1993) ,
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 03:05:39 PM.****
2.
Discoverymay continue, and further factual investigation and/or expert discovery
is required in order to fully evaluate Plaintiffs' experts' opinions.
I.
INTRODUCTIONTO THE "EVERY EXPOSURE" OPINION AND ITS EVOLUTION.
The "every exposure" opinion - held by many plaintiff experts - contends that because
mesothelioma is a dose-response disease, every exposure to asbestos substantially contributes to
the disease, regardlessof dose. The opinion holds that every fiber contributes to the overall dose,
and therefore each is a cause.
After courts rejected this opinion as unreliable,plaintiff experts modified their positionto
the "every exposure above background" opinion of causation. But the distinction is
inconsequential. Neither opinion accounts for dose, frequency, or duration of any individual
exposure; therefore,both opinionsshould be excluded as unreliable.
Courts have rejected prior attempts to disguise the "every exposure" opinion as
scientifically reliable. For example, in Haskins v. 3M, a case decided under maritime law - the
defendants sought to exclude the plaintiffs' causation expert's "every exposure" opinion.
Plaintiffs characterized their expert's opinion as follows: low dose exposure can cause
mesothelioma only if the exposures are non-trivial, above background, or occupational.2There,
the expert stated he did not need to know the actual level of exposure to defendants' products to
render his opinions.3 The district court rejected the "every exposure" opinion under Federal Rule
of Evidence 403.4 The court held that the "every exposure" theory "leads to the bizarre
conclusion that any exposure that carries any chance of causing mesothelioma - however
miniscule - constitutes a "substantial cause," regardless of the other exposures that may have
2 Haskinsv. 3M, 2017 WL 3118017 (D. S.C. 2017) at *6.
3 Id.
* Id at *8.
contributed to the total cumulative exposure."5 Finally, the court stated that the opinion would
likely fail under Daubert as well: "For many of the same reasons [thel opinion must be excluded
under Rule 403, it would likely fail to assist the jury on the issue of specific causation under Rule
'6
702."'
J-MM asks this Court, after due consideration of the issues discussed below, to conclude
that the "every exposure" opinion is utterly unreliable and inadmissible.
I.
LAW AND ARGUMENT
"If scientific, technical, or other specialized knowledge will assist the trier of fact in
understandingthe evidence or in determining a fact at issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify about it in the form of an
opinion or otherwise."7 The standard for determining the admissibility of expert opinion
8
testimony was set forth in Daubert v. Merrell Dow Pharma, Inc. and adopted by the Florida
Supreme Court: In Daubert, the United States Supreme Court expressed the "gatekeeping"
responsibility of the trial judge is to ensure that any and all scientific testimony or evidence
10
admitted is not only relevant,but reliable.
Section 90.702 codifies the Daubert standard, setting forth the requirements to admit
expert opinion, and provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact in
understanding the evidence or in determining a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify about it in the
form of an opinion or otherwise,if:
5 Id at *7.
6 Id at n. 13.
7 Florida Statue Section 90.702.
8 509 U.S.579, 113 S.Ct. 2786; 125 L.Ed 2.d 46 9 ( 1993).
9 In re Amendments to FloridaEvidence Code, 278 So.3d 551 (Fla. 2019).
10 509 U.S.at 589.
(1) The testimony is based upon sufficientfacts or data;
(2) The testimony is the product ofreliable principles and methods; and
(3) The witness has applied the principles and methods reliablyto the facts of the
11
case.
Initially, expert testimony is relevant when it will assist the trier of fact understand the
12
evidence or determine a fact issue.
If the testimony is not sufficientlytied to the facts of the
case, it is not helpful and, thereforerelevant.J13
Additionally, only testimony that is scientifically valid can satisfy the reliability
requirement. To evaluate the reliability of the proffered testimony, the trial judge must look at
14
whether the reasoning or methodologycan be applied to the facts of the case.
The "every exposure" or "every exposure above background" opinion(s) cannot satisfy
any of the above criteria required of expert testimony pursuant to Florida jurisprudence. It is not
based on sufficient facts or data, not the product of reliable principles or studies and it is based
upon assumption rather than any well-recognized scientific principle. The "every exposure"
theory and any opinion that any alleged exposures to J-MM's products, regardless of dose,
caused the decedent's mesothelioma is simply a conclusion without any methodology. The
opinion lacks any scientific connectionto the injury beyond the ipse dixit ofthe expert.
J-MM anticipates that Plaintiffs' experts will modify their reliance upon the "every
exposure" opinion because of prior judicial rulings excluding this type of testimony as
unsupported by science and not generally accepted in the medical or scientific communities.
Rather than rely upon the "every exposure" theory to support their testimony, plaintiffs' experts
11 Royal Caribbean Cruises, Ltd v. Spearman, No. 3D18-2188, 2021 WL 1652549, at *11 (Fla. Dist. Ct.
App. Apr. 28,2021).
12 Idat.591.
13 Id.
14 Id at 593.
have modified their testimony in various ways. The first is to state that every exposure above
backgroundor ambientlevels of asbestos in the general environmentis significant.
Alternatively, since various courts have also rejected the "above background" theory,
plaintiff experts sometimes rephrase their opinion to state that every exposure to asbestos
contributes to the "cumulative dose" of a plaintiff. These experts conclude - without a scientific
basis - that every single exposure to asbestos, no matterhow slight, is a significantcontributing
factor to the disease, since every exposure "adds to the cumulative lifetime dose" ofthe individual.
Essentially, because they cannot exclude an exposure as being "potentially" causative they leap
to the conclusionthat every exposure must, therefore, be a significantexposure.
Both of these modifications suffer the same deficiencies as the original theory. All
versions ofthe theory are based on unsupportedassertions.
II.
ADDITIONAL
CONSIDERATIONS
CALL FOR
THE
ExcLUSION OF
THE
"EVERY
EXPOSURE" OPINION.
In addition to the failure in methodology described above, additional considerations, in
both science and equity, call for the "every exposure" opinion to be excluded from the trial of
this matter.
A. The "Every Exposure" Opinion Fails to Consider Relevant Dose-Response
Analysis.
J-MM antic*ates that Plaintiffs' experts will claim that because Mr. Rogers may have had
exposures to asbestos, then, ipso facto, the cause of his mesothelioma was every exposure to
each asbestos-containing product, regardless of dose.
"Every exposure" opinionsignore this logic and the evidence supporting it - the evidence
that asbestos products diverge widely in toxicity and harm-causingpotential. Under the "every
exposure" opinion, all exposures are equal. This is neither scientific nor logical. Moreover, as
pointed out by one federal court, one of the most basic principles of toxicologyis that the "dose
makes the
,,15
poison.'
There is no valid scientific reason to assume that this truism does not apply
in the context of asbestos: "The use of the no safe level or linear 'no threshold' model for
showingunreasonablerisk 'flies in the face ofthe toxicological law of dose-response, that is, that
'the dose makes the poison.;,,,16 There is no logical reason to believe that low exposures to certain
types of products play preciselythe same role in causing disease as high exposures to other types
of products with widely divergent characteristics. Thus, this Court should exclude any "every
exposure" opinions Plaintiffs seeks to offer through their experts.
B. The "Every Exposure" Opinion is an Unfounded Litigation ContrivanceThat
Improperly Reverses the Burden of Proof.
Florida tort law provides that the manufacturer of a defective product may be subject to
17
liability under two theories: negligence and strict liability.
To prevail on a products liability
claim sounding in negligence, a plaintiff must establish: (1) a duty or obligation recognized by
the law requiring the defendant to protect others from unreasonable risks; (2) a breach of that
duty; (3) a reasonably close casual connection between the conduct and the resulting injury; and
(4) actual loss or damages.'18 As to a claim for strict liability, a plaintiff must establish (1) the
manufacturer's relationship to the product in question, (2) the defective and unreasonably
dangerous condition of the product, and (3) the existence of a proximate causal connection
between such condition and the
19
user's injuries or damages.
15 In re WR. Grace & Co., 355 B.R. 462,476 (Bankr. D. Del. 2006).
16 Id. (quoting FederalJudicialCenter, ReferenceManualon ScientificEvidence 475 Gd ed. 2000)).
17 Small v. Amgen, Inc., 134 F. Supp. 3d 1358, 1366 (M.D. Fla. 2015), qtrd, 723 F. App'x 722 (llth Cir.
2018).
18
Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007) (citing Clay Elec. Coop., Inc. v. Johnson, 873
So.2d 1182, 1185 (Fla.2003).
19
Bailey v. Janssen Pharmaceun-ca, Inc., 288 Fed.Appx. 597, 604 (llth Cir.2008) (citing FFest v.
Caterpillar TractorCo., 336 So.2d 80, 87 (Fla. 1976))
However, "every exposure" causation opinions improperly reverse the burden of proof.
They assume every exposure is significant- and therefore a proximate cause - because they do
not know whether each exposure is significant. But the scientific community does not know the
precise cellular and/or genetic mechanisms that occur to cause mesothelioma. Therefore, this
burden-shiftingapproachmakes for both bad science and bad law.
C. The "Every Exposure"Opinion Is an Unproven CircularHypothesis That Is Not
Based on Scientific Methodology or Reasonably DevelopedReasoning.
The "every exposure" opinion is nothing more than a circular hypothesis based on
unfounded assumptions.20 Therefore, it cannot even be said that any "method" of systematic
inquiry underliesthe "every exposure" opinion. Even some plaintiff experts who routinelytestify
in asbestos litigation have conceded that the "every exposure" opinion is not a conclusion
reached after application ofthe scientific method but is rather a hypothesis.
For example, Plaintiffs' expert in this case, Dr. Arnold Brody, a cellular biologist who
often testifies in asbestos cases on behalf of plaintiffs generally and who has been retainedin this
case, has conceded that the "every exposure" opinion has never been scientifically tested; is
unsupported by any data; has not been published in peer-reviewed literature of any sort; is an
".
,21
intuitive"concept; and has not been "put together as a scientific principle and tested." In other
words, the conclusion remains no conclusion at all. According to Dr. Brody, the "every
exposure" opinion simply has not progressedthrough these steps, and, apparently, it cannot do so
22
based on modern science.
Thus, the opinion is not based on any methodology at at!, and is
20 Circular reasoning involves deducing a proposition that assumes the very thing the argument aims to
prove; in essence, the propositionis used to prove itself.
21 Exhibit "1," July 18, 2006, Trial Transcriptof Dr. Arnold Brody from Baxter v. Afa Laval, et al., at
37:2-40:14.
22 See id.; see also Sclq/aniv. Air & Liquid Sys. Corp., 2013 WL 2477077, at *5 (C.D. Cal. May 9, 2013)
("Most troubling is Dr. Brody's own testimony-when cross-examinedin another action about his 'each
and every exposure' opinion, Dr. Brody conceded that 1) there was no data to establishthat all exposures
certainly not a generally accepted methodology. Rather, as Dr. Brody has acknowledged, these
23
opinions were developed for litigation and are not found in the publishedmedical literature.'
Courts across the country have rejected similar theories from other experts under
24
Daubert,
finding that these "non-scientific assumptions" did not support such a hypothesisand
that the plaintiff failed to present any methodology that could, let alone a generally accepted
25
one.
III.
THE "EVERY EXPOSURE" OPINION IS OVERWHELMINGLY REJECTED
AS
AN
UNPROVEN, UNRELIABLE HYPOTHESIS THAT IS UNDULY
PREJUDICIAL.
"Every exposure" opinions are not generally accepted in the scientific community. There
are no techniques, experiments,or studies capable of substantiating the conclusionthat "any and
all" exposures to asbestos are a substantial factor in causing mesothelioma. For the same reason,
"every exposure" opinions are generally rejected in the legal community. For example, the
Supreme Court of Pennsylvania stated:
contribute to mesothelioma; 2) his theory could not be tested; 3) his theory had not been published in any
peer-review literature; and 4) had not been "put togetheras a scientificprinciple and tested.").
23 See January 8, 2003, DepositionTranscriptof Dr. Arnold Brody from Hyder, et al. v. AC&S, Inc., et
al., No. 01-01-00077-CV (Brazoria County, TX January 8, 2008) at 45:7-46:1, a copy of which is
attached as Exhibit 2:
Q.
My question is slightly different. I'm asking for the title, the authors and the date or whatever
information you can give me that identifies a scientific paper that is in the peer reviewed literaturethat
espouses the theory that every fiber contributes to cause asbestos disease, every fiber that a person is
exposedto contributes.Where has that been published in the medical literature?
A. Well, just because of what I just said I would tell you that you can't find that, because it is not an
established concept in the sense that there are data that can be publishedin the peer reviewed literature. It
is one that is an opinion of an expert and I don't think I'm the only expert or individual that believes that
to be the case that has been derived from our understandingthat we currently have, that I just explained.
Q. And it is that opinion which you have given for litigationpurposes in this case; correct?
A.
Correct, that I would if asked, right.
24 See Scapa Diyer Fabrics, Inc. v. Knight, 788 S.E.2d 421, 426 (Ga. 2016)(Georgia Supreme Court
exclusion of Dr. Jerrold Abraham's "every exposure" theories as they failed to quantify the exposure and
"invited the jury to find causationif there was any exposure by Scapa, even if it were only de minimis.");
Basile v. American Honda, -No. 11484, 2007 WL 712049 (Pa. Ct. Comm. Pl. Feb. 22, 2007) (Finding
plaintiffexpert Dr. John Maddox's "every exposure" opinion as unreliable and unaccepted by the general
scientific opinion).
25 Basile v. American Honda, No. 11484, 2007 WL 712049.
[w]e do not believe that it is a viable solution to indulge in a fiction that each and every
exposure to asbestos, no matter how minimal in relation to other exposures, implicates a
fact issue concerning substantial-factor causation in every "direct-evidence" case. The
result, in our view, is to subject defendants to full joint-and-severalliability for injuries
and fatalities in the absence of any reasonably developed scientific reasoning that would
support the conclusion that the product sold by the defendant was a substantial factor in
26
causing the harm.
In Butler v. Union Carbide, the Court a Daubert motion seeking to preclude these
opinion, the trial court concluded that the expert "has not properly utilized the scien#tic
method to make scientifically valid decisions in reaching his specific causation opinion as
requiredby Daubert.,,27 The Court ofAppeals of Georgia affirmed.
The federal courts' interpretation of the Federal Rules of Evidence may be relied upon
as
a
persuasive authority when interpreting the corresponding provisions of the Florida
28
Evidence Code.
Section 90.702, which was amended in 2013, is patterned after Rule 702 of
29
the Federal Rules of Evidence as amended in 2000.
Federal courts applying a substantial factor test for causation have excluded the "every
exposure" opinion." In Krik v. Exxon Mobil Corp., the Seventh Circuit considered a post-defense
verdict appeal in which plaintiff claimed that the trial court had improperly excluded the
30
opinions of Dr. Arthur Frank, an expert retained by Plaintiffs in this case.
Two trial court
judges excluded Dr. Arthur Frank's opinion. The first "concludedthat Krik had not established
that the 'any exposure' theory was sufficientlyreliable to warrant admission under Rule 702 and
the
,,31
Supreme Court's seminal case on the admissibility of expert witnesstestimony.
The second
judge excluded Dr. Frank's "cumulative exposure" testimony, concluding that it was no different
26 Gregg v. FJAuto Parts, Inc., 943 A.2d 216, 226-27 (Pa. 2007).
27 Id. (emphasis in original)
28 Rich v. Kaiser Gypsum Co., 103 So. 3d 903, 908 (Fla. Dist. Ct. App. 2012).
29 Royal Caribbean Cruises, Ltd v. Spearman, No. 3D18-2188, 2021 WL 1652549, at *11 (Fla. Dist. Ct.
App. Apr. 28,2021).
30 Krik v. Exxon Mobil Corp., 15-3112, 2017 WL 3768933, at *6 (7th Cir. Aug. 31, 2017).
31 Id at *1.
than the "every exposure" opinion previously excluded. The plaintiff appealed, asserting the
exclusion of the "cumulative exposure" opinion was error because it was not the same as the
"each and every exposure opinion."
In reviewing these exclusions, the Seventh Circuit held that "Dr. Frank's cumulative
exposure theory was no different from the 'each and every exposure' theory in all relevant
,,32
ways.
In other words, just like "each and every exposure," the cumulative exposure theory
does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute
to a cumulative dose. The ultimate burden ofproofon the elementofcausation, however, remains
with the plaintiff. Requiring a defendant to exclude a potential cause of the illness, therefore,
improperly shifts the burden to the defendantsto disprove causation and nullifies the requirements
of the "substantial factor" test. Accordingly, the Seventh Circuit held that the trial court neither
erred nor abused its discretion in precluding Dr. Frank from offering his "cumulative exposure"
opinions.
The Louisiana federal court decision in Vedros v. Northrop Grumman Shipbuilding,Inc.,
adeptly summarized relevantDaubertjurisprudence on the issue as follows:
The "every exposure" theory has been advanced by plaintiffs and their experts in a
number of recent cases.
See Joseph Sanders, The "Every Exposure" Cases and the
Beginning of the Asbestos Endgame, 88 Tul. L.Rev. 1153, 1157 (2014).
The "every
exposure" theory "represents the viewpoint that, because science has faded to establish
that any specific dosage of asbestos causes injury every exposure to asbestos should be
considered a cause of injury." Yates v. Ford Motor Co., [113 F. Supp. 3d 841, 846
(E.D.N.C. 2015)]; see also Krik v. Crane Co., U6 F. Supp. 3d 747 750- 51 (N.D. IlL
2014)]. The judicial reception to this theory has been largely negative. Numerous courts
have excluded expert testimony or evidence grounded in this theory, reasoning that it
lacks sufficient support in facts and data. See, e.g., Yates, 113 F. Supp. 3d at 846-47;
Comardelle v. Pa. Gen. Ins. Co., [76 F. Supp. 3d 628,633-35 (E.D. La. 2015)]; Krik, \76
F. Supp. 3d at 752-53]; Davidsonv. Ga. Pac. LLC,-No. 11- 1463, 2014 U.S. Dist. LEXIS
95559, 2014 WL 3510268, at *5 (W.D. La. July 14, 2014) Ivacated on unrelated
grounds, 819 F.3d 758, (5th Cir. April 19, 2016)]; Anderson v. Ford Motor Co., 950 F.
Supp. 2d 1217, 1225 (D. Utah 2013); Sclafaniv. Air & Liquid Sys. Corp., 14F. Supp. 3d
32 Id.
1351, 1356-1357 (C.D. Cal. 2014); Foucha v. Ford Motor Co., No. 8-630, 2013 U.S.
Dist. LEXIS 7861, 2013 WL 214378, at *2 (D. Utah Jan. 18, 2013). Likewise, applying
the Daubert factors, courts have found that the theory cannot be tested, has not been
publishedin peer-reviewed works, and has no known error rate. E.g., Yates, [113 F. Supp.
33
3d at 846-47].
Similarly, in Davidson v. Georgia Pac#ic LLC, the U.S. District Court for the Western
District of Louisiana rejected a causation opinion based on the "every exposure" theory,
concluding that the theory "is not testable, and consequently cannot have an error rate, thus
34
failing to satisfy two Daubert factors'V' Davidson also faulted the expert testimony for its
failure to rely on any data ..,'that would show that any particular defendant's product actually
caused [decedent] to develop mesothelioma.,,35 More recently, the U.S. District Court for the
Eastern District of Louisiana rejected the "every significant exposure" theory as not materially
different from the "every exposure" theory and concluded, "though skillfullycloaked, Plaintiffs'
experts' conclusions... again impermissiblyrest on little more than the experts' ipse dixit.,,36
Several Florida courts have excluded every exposure opinions under a Daubert analysis.
See Crane Co. v. DeLisle, 206 So. 3d 94 (Fla. 4',th DCA 2016)(reversedon application ofDaubert
standard versus Frye - prior to Florida Supreme Court adoption of Daubero(every exposure
opinions of Dr. Dalhgren not supported by sufficient data or based upon reliable principles and
th
methods); Reaves v. Armstrong WorldIndustries, Inc., 569 So. 2d 1307 (Fla. 4L DCA 1990).
After extensive Frye and Daubert type hearings, courts in several jurisdictions have
37
excluded the "any exposure" and "any exposure above background" theories. There are at least
33 Fedros, 119 F. Supp. 3d at 562-63.
34 Davidson v. GeorgiaPacific LLC, No. 12-1463, 2014 U.S. Dist. LEXIS 95559, *13-14 (W.D.La. July
14, 2014).
35 Id. At *13-14.
36 Bell, 2016 U.S. Dist. LEXIS 138817, *3-4 (E.D.La. Oct 6, 2016), see also Comarde#e, 76 F. Supp. 3d
at 632-35.
37
See Behrens, M.. & Anderson, -W., The "Any Exposure" Theory: An Unsound Basis for Asbestos
Causan-on and Expert Tesn-mony, 37 S.W.U. L. Rev. 480 (2008) (summarizing case law rejecting "any
exposure" theory).
twenty courts that have rejected the "every exposure" opinion and its variants, including the
38
39
40
Texas Supreme Court,
Texas MI)L,-
Pennsylvania Supreme Court,- Arkansas Supreme
41
42
43
44
Court,
Pennsylvania trial courts,' Washington trial courts,= a Louisiana trial court,
a Utah
45
46
47
trial court,- Georgia appellate court,
a North Carolina trial court,
and a Mississippi trial
48
court.
Accordingly, any opinion that Mr. Rogers' cumulative exposures contributed to his
mesothelioma is simply a variation on the "every exposure" opinion,and should be excluded.
III.
CONCLUSION
The trial judge's gatekeeping function with respect to expert testimony is to ensure that
any and all scientific testimony or evidence admitted is not only relevant, but reliable. In this
case, all of Plaintiffs' experts must be excluded from testifying as to the "any exposure above
background theory." Further, J-MM reserves its right to supplement this motion and
memorandumpending further discoveryand investigation.
38 See Bostic v. Georgia-Pacific Corp., 439 S.W. 3d 332 (Tex. 2014)-, Borg-WarnerCorp. v. Flores, 232
S.W.3d 765 (Tex. 2007) (holding that a person's exposure to "some" respirable fibers is insufficient to
show that a product containingasbestoswas a substantialfactorin causing asbestosis).
39 See LetterRuling, In re Asbestos Litig., Cause No. 2004-03964 (Tex. Dist. Ct. Jan. 20,2004).
40 See Gregg, 943 A.2d 216 (Pa. 2007).
41 See Chaversv. General Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002) (holdingthat "competent medical
evidence presented in this case does not support the conclusion that a one-time exposure to asbestos-
containingbrakes was a substantialcause of Mr. Chaver'smesothelioma.").
42 See In re Toxic Substances Cases, no. A.D. 03-0319, 2006 WL 2404008 at 7-8 (Pa. Ct. Com. Pl. Aug.
17, 2006); Basile v. Am. Honda Motor Co., -No. 11484 CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007); In re
Asbestos Litig., Certain Asbestos Friction Cases Involving Chrysler LLC, No. 0001 Control #084682 (Pa.
Ct. Com. Pl. Sept 24,2008).
43 See Anderson v. Asbestos Corp., No. 05-2-04551-5SEA,slip op. at 144-45 (Wash. King County Super.
Ct. Oct. 31, 2006); Freev. Ametek,-No.07-2-04091-9-SEA(Wash. King County Super. Ct. Feb. 29, 2008).
44 See Degrasse v. Anco Insulan-ons,No. 2007-12736 (Orleans Civ. Dist. Ct., La., Sep. 13, 2007).
45 Smith v. FordMotor Co., 2013 WL 214378 (D. Utah 2013).
46 See Butler et al., v. UnionCarbide Corporation, 301 Ga.App. 21, 712 S.E.2d 537 (2011).
47 See Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 846 (E.D.N.C. 2015), reconsiderationdenied, 143
F. Supp. 3d 386 (E.D.N.C. 2015).
48 See Nix v. AGCO Corporan-on, et al., No. 2010-85-CV8 (CircuitCourt of Jones County, MS, Sept. 21,
2011).
WHEREFORE, for the reasons fully set forth herein Defendant J-M Manufacturing
Company, Inc. respectfully requests that this Court grant its Motion to Exclude Plaintiffs'
experts' testimony at trial or alternatively, that such testimony be limited to those opinions that
are ruled to be admissible in accordance with the standards established in Daubert as codified by
§ 90.702, Fla. Stat.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 23, 2021, I electronically filed the foregoing with the
Clerk of the Courts by using the Florida Courts eFiling Portal which will provide notice to all
Counsel of Record.
/s/ Jeffrey W. Kirsheman
JEFFREY W. KIRSHEMAN, ESQUIRE
Florida Bar No. 0059341
Fisher Rushmer, P.A.
Post Office Box 3753
Orlando, FL 32802-3753
Tel: 407-843-2111 / Fax: 407-422-1080
com
[rm.com
Attorneys for Defendant, J-M Manufacturing
Company, Inc.
Pageu;, 68
COMMONWEALTH OF nSSACHUSETTS
Suffolk County, ss.
Superior Court, Department
MICV-05-4314
of the Trial Caurt
ROBERT BAXR
i? i
V:
'.hLFA IAVAL, ET AL
*
*0* 1* *. it ******#***9,
CEOSS-m[At. IbmTION OF.DR, ARNEEP-R,-BRODY
BY ATTY. CARY SCRACATER
I
(Jibccerpted'from Jkry Tl:ial " Vol. rV)
Appeaj:ancee:
Edward Cokdy, Ron Eddins, David Greenstone, for the
plaintiff
John Barooehian, Patrick Tracey, for the Defendant,
A. W.
Chewterton got
A.
Bernard Guejmueziad, for the Defendant, kll,iott
Turbo Maghlnery Co:reany
'diary,Bohaoter, Craig Wakeler, Ray Harwie, fp*.the
,
Defendant, Garlbck Scaling Technologies .
Ollie Harton, David Stillman, Eqr the Derendaut,
John Crane, Inc.
Judith Ferritang, Eor the Defendant, Warrdil'Pumps
Michael Molland, Jamee Ray, Joey Ilea Miranda, for the
De:Kendart, Yarway
Suffolk County Couxtbcruae
1
Courtroom #403
Three Pemberton Square
.
Boston, MA
02108
Tueeday, July 18, 4006
MZore i Wly. .Jl
-Chrgtiai 0mii,-OFEia1.1 COWEMOIEer
617-788 -6183
,
i
Exhibit "2"
I
Excerpted from Jury Trial
IV - 37
1
second queet,ion,
2
Your opinion is that each and
3
every exposure contributea to cauae meeothelioma,
4
is that correct?
5
A.
Right.
6
Q.
And you told us that the opinions you ahared with
7
thie jury ara the vmry same opinions that you
8
share with your scientific colleaguea, right?
9
A.
In general, su:re.
10
Q.
Okay.
And yuu've published Bomething like 145
?
11
artielas?
'
'
12
A.
Right.
13
Q
Yet in none of
.
your articles, where you were
14
Bharing your opinions with salentiute, have you
r
15
ever written that each and avery exposure
1G
contributes to cause mesothelioma, correct7
i
17
A.
Right.
That'B Bot 4 scientific test that'g been
18
carried out on that.
That'e right,
19
Q.
And, in fact, there are no data that establish
*0
the concept that all exposures contribude to
21
cailee mesothelioma such that it would allow that
22
codcept to be publiahed in the peer-reviewed
23
medical' literature, correct?
24
A.
, Right.
As I.way, that is not something that can
I
Excerpted f#om Jury Trial
IV - 38
t
1
be tested.
It's one that'a intuitive.. It'e one
2
that scientiets would draw, as I have, and
3
ethere heve drawn opinions, based on what we knoy
4
about what fibers do and.what they Can do,
5-
Q.
80 when you come to testify. you're testifying to
6
.
this opinion, but it is an opinion that is not
7
supported by ecientifia data and is not a
8
published opinion, correct?
9
A.
.Well, you juat said two things.
10
'Q.
Yes, I did.
11
A.
Yes.
And so 'what we need to do is divide them
12
'
Q.
I .apologize.
13
A.
That's okay.
I accept your apology,
14
The firgt thing is that wa're
i
I5
talking about Ehe bssia for the statement. And-
16
the baeia for the statement i&1 what we kniow that
17
.
is published about agbestos fibers.
10
The seaond one ia the point aMt
19
it appearing in scientific papers
And there,
.
'
20
you'ra right.
Because, I mean, itr# not
21
something that's been put tbgether as a
,
I
22
scientifia
.
principle and tested.
23
Q.
Okay.
Well, when a scientiat has a principle
24
that he can put *ogut:her as a auientific
i
Excerpted from Jury Trial
IV - 39
1.
principle and test, and have subject to the
2
scrutiny of hie peers, other,saientigts, an
I
3
opinion, he puts it in writing, and than other
4
soientieta can use scientiflc methode to either
5
confirm or attack it, right?
6
A.
-
I agree.
7
Q.
And this opinion that you're givi
Preview
Filing # 129358559 E-Filed 06/23/2021 03:05:39 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA JOE CARL ROGERS and HILDA ROGERS, his wife, GENERAL JURISDICTION DIVISION CASE NO.: CACE-19-025692 Plaintiffs, V ACOUSTI ENGINEERING COMPANY OF FLORIDA; et al. Defendants. i J-M MANUFACTURINGCOMPANY INC.'S MOTION IN LIMINE TO EXCLUDE THE "EVERY EXPOSURE" CAUSATION OPINION (J-MM Motion in Limine No. 16) Defendant, J-M Manufacturing Company, Inc. (hereinafter "J-MM" or "Defendant") by and through the undersigned counsel, and submits this Motion to Exclude the "Every Exposure" Causation Opinion. J-MM moves this Honorable Court to exclude Plaintiffs' expert witnesses from testifying at trial or, in the alternative, to limit each experts' testimony to the extent it does not meet the standards for admissibility as set forth § 90.702, Fla. Stat., § 90.704, Fla. Stat. and/or under Daubert v. Merrell Dow Pharm., lnc.land its progeny. J-MM also moves for an Order excluding any written evidence, oral testimony, or argument of counsel that each and every exposure to asbestos above background levels increased the risk that Joe Carl Rogers would develop mesothelioma. Defendant further states: 1. This action is currently set on the docket commencing August 2, 2021, however may be continued or rolled due to circumstances created by the pandemic. 1 509 U.S. 579,113 S.Ct. 2786,125 L.Ed.2d 469 (1993) , *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/23/2021 03:05:39 PM.**** 2. Discoverymay continue, and further factual investigation and/or expert discovery is required in order to fully evaluate Plaintiffs' experts' opinions. I. INTRODUCTIONTO THE "EVERY EXPOSURE" OPINION AND ITS EVOLUTION. The "every exposure" opinion - held by many plaintiff experts - contends that because mesothelioma is a dose-response disease, every exposure to asbestos substantially contributes to the disease, regardlessof dose. The opinion holds that every fiber contributes to the overall dose, and therefore each is a cause. After courts rejected this opinion as unreliable,plaintiff experts modified their positionto the "every exposure above background" opinion of causation. But the distinction is inconsequential. Neither opinion accounts for dose, frequency, or duration of any individual exposure; therefore,both opinionsshould be excluded as unreliable. Courts have rejected prior attempts to disguise the "every exposure" opinion as scientifically reliable. For example, in Haskins v. 3M, a case decided under maritime law - the defendants sought to exclude the plaintiffs' causation expert's "every exposure" opinion. Plaintiffs characterized their expert's opinion as follows: low dose exposure can cause mesothelioma only if the exposures are non-trivial, above background, or occupational.2There, the expert stated he did not need to know the actual level of exposure to defendants' products to render his opinions.3 The district court rejected the "every exposure" opinion under Federal Rule of Evidence 403.4 The court held that the "every exposure" theory "leads to the bizarre conclusion that any exposure that carries any chance of causing mesothelioma - however miniscule - constitutes a "substantial cause," regardless of the other exposures that may have 2 Haskinsv. 3M, 2017 WL 3118017 (D. S.C. 2017) at *6. 3 Id. * Id at *8. contributed to the total cumulative exposure."5 Finally, the court stated that the opinion would likely fail under Daubert as well: "For many of the same reasons [thel opinion must be excluded under Rule 403, it would likely fail to assist the jury on the issue of specific causation under Rule '6 702."' J-MM asks this Court, after due consideration of the issues discussed below, to conclude that the "every exposure" opinion is utterly unreliable and inadmissible. I. LAW AND ARGUMENT "If scientific, technical, or other specialized knowledge will assist the trier of fact in understandingthe evidence or in determining a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify about it in the form of an opinion or otherwise."7 The standard for determining the admissibility of expert opinion 8 testimony was set forth in Daubert v. Merrell Dow Pharma, Inc. and adopted by the Florida Supreme Court: In Daubert, the United States Supreme Court expressed the "gatekeeping" responsibility of the trial judge is to ensure that any and all scientific testimony or evidence 10 admitted is not only relevant,but reliable. Section 90.702 codifies the Daubert standard, setting forth the requirements to admit expert opinion, and provides as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise,if: 5 Id at *7. 6 Id at n. 13. 7 Florida Statue Section 90.702. 8 509 U.S.579, 113 S.Ct. 2786; 125 L.Ed 2.d 46 9 ( 1993). 9 In re Amendments to FloridaEvidence Code, 278 So.3d 551 (Fla. 2019). 10 509 U.S.at 589. (1) The testimony is based upon sufficientfacts or data; (2) The testimony is the product ofreliable principles and methods; and (3) The witness has applied the principles and methods reliablyto the facts of the 11 case. Initially, expert testimony is relevant when it will assist the trier of fact understand the 12 evidence or determine a fact issue. If the testimony is not sufficientlytied to the facts of the case, it is not helpful and, thereforerelevant.J13 Additionally, only testimony that is scientifically valid can satisfy the reliability requirement. To evaluate the reliability of the proffered testimony, the trial judge must look at 14 whether the reasoning or methodologycan be applied to the facts of the case. The "every exposure" or "every exposure above background" opinion(s) cannot satisfy any of the above criteria required of expert testimony pursuant to Florida jurisprudence. It is not based on sufficient facts or data, not the product of reliable principles or studies and it is based upon assumption rather than any well-recognized scientific principle. The "every exposure" theory and any opinion that any alleged exposures to J-MM's products, regardless of dose, caused the decedent's mesothelioma is simply a conclusion without any methodology. The opinion lacks any scientific connectionto the injury beyond the ipse dixit ofthe expert. J-MM anticipates that Plaintiffs' experts will modify their reliance upon the "every exposure" opinion because of prior judicial rulings excluding this type of testimony as unsupported by science and not generally accepted in the medical or scientific communities. Rather than rely upon the "every exposure" theory to support their testimony, plaintiffs' experts 11 Royal Caribbean Cruises, Ltd v. Spearman, No. 3D18-2188, 2021 WL 1652549, at *11 (Fla. Dist. Ct. App. Apr. 28,2021). 12 Idat.591. 13 Id. 14 Id at 593. have modified their testimony in various ways. The first is to state that every exposure above backgroundor ambientlevels of asbestos in the general environmentis significant. Alternatively, since various courts have also rejected the "above background" theory, plaintiff experts sometimes rephrase their opinion to state that every exposure to asbestos contributes to the "cumulative dose" of a plaintiff. These experts conclude - without a scientific basis - that every single exposure to asbestos, no matterhow slight, is a significantcontributing factor to the disease, since every exposure "adds to the cumulative lifetime dose" ofthe individual. Essentially, because they cannot exclude an exposure as being "potentially" causative they leap to the conclusionthat every exposure must, therefore, be a significantexposure. Both of these modifications suffer the same deficiencies as the original theory. All versions ofthe theory are based on unsupportedassertions. II. ADDITIONAL CONSIDERATIONS CALL FOR THE ExcLUSION OF THE "EVERY EXPOSURE" OPINION. In addition to the failure in methodology described above, additional considerations, in both science and equity, call for the "every exposure" opinion to be excluded from the trial of this matter. A. The "Every Exposure" Opinion Fails to Consider Relevant Dose-Response Analysis. J-MM antic*ates that Plaintiffs' experts will claim that because Mr. Rogers may have had exposures to asbestos, then, ipso facto, the cause of his mesothelioma was every exposure to each asbestos-containing product, regardless of dose. "Every exposure" opinionsignore this logic and the evidence supporting it - the evidence that asbestos products diverge widely in toxicity and harm-causingpotential. Under the "every exposure" opinion, all exposures are equal. This is neither scientific nor logical. Moreover, as pointed out by one federal court, one of the most basic principles of toxicologyis that the "dose makes the ,,15 poison.' There is no valid scientific reason to assume that this truism does not apply in the context of asbestos: "The use of the no safe level or linear 'no threshold' model for showingunreasonablerisk 'flies in the face ofthe toxicological law of dose-response, that is, that 'the dose makes the poison.;,,,16 There is no logical reason to believe that low exposures to certain types of products play preciselythe same role in causing disease as high exposures to other types of products with widely divergent characteristics. Thus, this Court should exclude any "every exposure" opinions Plaintiffs seeks to offer through their experts. B. The "Every Exposure" Opinion is an Unfounded Litigation ContrivanceThat Improperly Reverses the Burden of Proof. Florida tort law provides that the manufacturer of a defective product may be subject to 17 liability under two theories: negligence and strict liability. To prevail on a products liability claim sounding in negligence, a plaintiff must establish: (1) a duty or obligation recognized by the law requiring the defendant to protect others from unreasonable risks; (2) a breach of that duty; (3) a reasonably close casual connection between the conduct and the resulting injury; and (4) actual loss or damages.'18 As to a claim for strict liability, a plaintiff must establish (1) the manufacturer's relationship to the product in question, (2) the defective and unreasonably dangerous condition of the product, and (3) the existence of a proximate causal connection between such condition and the 19 user's injuries or damages. 15 In re WR. Grace & Co., 355 B.R. 462,476 (Bankr. D. Del. 2006). 16 Id. (quoting FederalJudicialCenter, ReferenceManualon ScientificEvidence 475 Gd ed. 2000)). 17 Small v. Amgen, Inc., 134 F. Supp. 3d 1358, 1366 (M.D. Fla. 2015), qtrd, 723 F. App'x 722 (llth Cir. 2018). 18 Williams v. Davis, 974 So.2d 1052, 1056 (Fla.2007) (citing Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003). 19 Bailey v. Janssen Pharmaceun-ca, Inc., 288 Fed.Appx. 597, 604 (llth Cir.2008) (citing FFest v. Caterpillar TractorCo., 336 So.2d 80, 87 (Fla. 1976)) However, "every exposure" causation opinions improperly reverse the burden of proof. They assume every exposure is significant- and therefore a proximate cause - because they do not know whether each exposure is significant. But the scientific community does not know the precise cellular and/or genetic mechanisms that occur to cause mesothelioma. Therefore, this burden-shiftingapproachmakes for both bad science and bad law. C. The "Every Exposure"Opinion Is an Unproven CircularHypothesis That Is Not Based on Scientific Methodology or Reasonably DevelopedReasoning. The "every exposure" opinion is nothing more than a circular hypothesis based on unfounded assumptions.20 Therefore, it cannot even be said that any "method" of systematic inquiry underliesthe "every exposure" opinion. Even some plaintiff experts who routinelytestify in asbestos litigation have conceded that the "every exposure" opinion is not a conclusion reached after application ofthe scientific method but is rather a hypothesis. For example, Plaintiffs' expert in this case, Dr. Arnold Brody, a cellular biologist who often testifies in asbestos cases on behalf of plaintiffs generally and who has been retainedin this case, has conceded that the "every exposure" opinion has never been scientifically tested; is unsupported by any data; has not been published in peer-reviewed literature of any sort; is an ". ,21 intuitive"concept; and has not been "put together as a scientific principle and tested." In other words, the conclusion remains no conclusion at all. According to Dr. Brody, the "every exposure" opinion simply has not progressedthrough these steps, and, apparently, it cannot do so 22 based on modern science. Thus, the opinion is not based on any methodology at at!, and is 20 Circular reasoning involves deducing a proposition that assumes the very thing the argument aims to prove; in essence, the propositionis used to prove itself. 21 Exhibit "1," July 18, 2006, Trial Transcriptof Dr. Arnold Brody from Baxter v. Afa Laval, et al., at 37:2-40:14. 22 See id.; see also Sclq/aniv. Air & Liquid Sys. Corp., 2013 WL 2477077, at *5 (C.D. Cal. May 9, 2013) ("Most troubling is Dr. Brody's own testimony-when cross-examinedin another action about his 'each and every exposure' opinion, Dr. Brody conceded that 1) there was no data to establishthat all exposures certainly not a generally accepted methodology. Rather, as Dr. Brody has acknowledged, these 23 opinions were developed for litigation and are not found in the publishedmedical literature.' Courts across the country have rejected similar theories from other experts under 24 Daubert, finding that these "non-scientific assumptions" did not support such a hypothesisand that the plaintiff failed to present any methodology that could, let alone a generally accepted 25 one. III. THE "EVERY EXPOSURE" OPINION IS OVERWHELMINGLY REJECTED AS AN UNPROVEN, UNRELIABLE HYPOTHESIS THAT IS UNDULY PREJUDICIAL. "Every exposure" opinions are not generally accepted in the scientific community. There are no techniques, experiments,or studies capable of substantiating the conclusionthat "any and all" exposures to asbestos are a substantial factor in causing mesothelioma. For the same reason, "every exposure" opinions are generally rejected in the legal community. For example, the Supreme Court of Pennsylvania stated: contribute to mesothelioma; 2) his theory could not be tested; 3) his theory had not been published in any peer-review literature; and 4) had not been "put togetheras a scientificprinciple and tested."). 23 See January 8, 2003, DepositionTranscriptof Dr. Arnold Brody from Hyder, et al. v. AC&S, Inc., et al., No. 01-01-00077-CV (Brazoria County, TX January 8, 2008) at 45:7-46:1, a copy of which is attached as Exhibit 2: Q. My question is slightly different. I'm asking for the title, the authors and the date or whatever information you can give me that identifies a scientific paper that is in the peer reviewed literaturethat espouses the theory that every fiber contributes to cause asbestos disease, every fiber that a person is exposedto contributes.Where has that been published in the medical literature? A. Well, just because of what I just said I would tell you that you can't find that, because it is not an established concept in the sense that there are data that can be publishedin the peer reviewed literature. It is one that is an opinion of an expert and I don't think I'm the only expert or individual that believes that to be the case that has been derived from our understandingthat we currently have, that I just explained. Q. And it is that opinion which you have given for litigationpurposes in this case; correct? A. Correct, that I would if asked, right. 24 See Scapa Diyer Fabrics, Inc. v. Knight, 788 S.E.2d 421, 426 (Ga. 2016)(Georgia Supreme Court exclusion of Dr. Jerrold Abraham's "every exposure" theories as they failed to quantify the exposure and "invited the jury to find causationif there was any exposure by Scapa, even if it were only de minimis."); Basile v. American Honda, -No. 11484, 2007 WL 712049 (Pa. Ct. Comm. Pl. Feb. 22, 2007) (Finding plaintiffexpert Dr. John Maddox's "every exposure" opinion as unreliable and unaccepted by the general scientific opinion). 25 Basile v. American Honda, No. 11484, 2007 WL 712049. [w]e do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every "direct-evidence" case. The result, in our view, is to subject defendants to full joint-and-severalliability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in 26 causing the harm. In Butler v. Union Carbide, the Court a Daubert motion seeking to preclude these opinion, the trial court concluded that the expert "has not properly utilized the scien#tic method to make scientifically valid decisions in reaching his specific causation opinion as requiredby Daubert.,,27 The Court ofAppeals of Georgia affirmed. The federal courts' interpretation of the Federal Rules of Evidence may be relied upon as a persuasive authority when interpreting the corresponding provisions of the Florida 28 Evidence Code. Section 90.702, which was amended in 2013, is patterned after Rule 702 of 29 the Federal Rules of Evidence as amended in 2000. Federal courts applying a substantial factor test for causation have excluded the "every exposure" opinion." In Krik v. Exxon Mobil Corp., the Seventh Circuit considered a post-defense verdict appeal in which plaintiff claimed that the trial court had improperly excluded the 30 opinions of Dr. Arthur Frank, an expert retained by Plaintiffs in this case. Two trial court judges excluded Dr. Arthur Frank's opinion. The first "concludedthat Krik had not established that the 'any exposure' theory was sufficientlyreliable to warrant admission under Rule 702 and the ,,31 Supreme Court's seminal case on the admissibility of expert witnesstestimony. The second judge excluded Dr. Frank's "cumulative exposure" testimony, concluding that it was no different 26 Gregg v. FJAuto Parts, Inc., 943 A.2d 216, 226-27 (Pa. 2007). 27 Id. (emphasis in original) 28 Rich v. Kaiser Gypsum Co., 103 So. 3d 903, 908 (Fla. Dist. Ct. App. 2012). 29 Royal Caribbean Cruises, Ltd v. Spearman, No. 3D18-2188, 2021 WL 1652549, at *11 (Fla. Dist. Ct. App. Apr. 28,2021). 30 Krik v. Exxon Mobil Corp., 15-3112, 2017 WL 3768933, at *6 (7th Cir. Aug. 31, 2017). 31 Id at *1. than the "every exposure" opinion previously excluded. The plaintiff appealed, asserting the exclusion of the "cumulative exposure" opinion was error because it was not the same as the "each and every exposure opinion." In reviewing these exclusions, the Seventh Circuit held that "Dr. Frank's cumulative exposure theory was no different from the 'each and every exposure' theory in all relevant ,,32 ways. In other words, just like "each and every exposure," the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose. The ultimate burden ofproofon the elementofcausation, however, remains with the plaintiff. Requiring a defendant to exclude a potential cause of the illness, therefore, improperly shifts the burden to the defendantsto disprove causation and nullifies the requirements of the "substantial factor" test. Accordingly, the Seventh Circuit held that the trial court neither erred nor abused its discretion in precluding Dr. Frank from offering his "cumulative exposure" opinions. The Louisiana federal court decision in Vedros v. Northrop Grumman Shipbuilding,Inc., adeptly summarized relevantDaubertjurisprudence on the issue as follows: The "every exposure" theory has been advanced by plaintiffs and their experts in a number of recent cases. See Joseph Sanders, The "Every Exposure" Cases and the Beginning of the Asbestos Endgame, 88 Tul. L.Rev. 1153, 1157 (2014). The "every exposure" theory "represents the viewpoint that, because science has faded to establish that any specific dosage of asbestos causes injury every exposure to asbestos should be considered a cause of injury." Yates v. Ford Motor Co., [113 F. Supp. 3d 841, 846 (E.D.N.C. 2015)]; see also Krik v. Crane Co., U6 F. Supp. 3d 747 750- 51 (N.D. IlL 2014)]. The judicial reception to this theory has been largely negative. Numerous courts have excluded expert testimony or evidence grounded in this theory, reasoning that it lacks sufficient support in facts and data. See, e.g., Yates, 113 F. Supp. 3d at 846-47; Comardelle v. Pa. Gen. Ins. Co., [76 F. Supp. 3d 628,633-35 (E.D. La. 2015)]; Krik, \76 F. Supp. 3d at 752-53]; Davidsonv. Ga. Pac. LLC,-No. 11- 1463, 2014 U.S. Dist. LEXIS 95559, 2014 WL 3510268, at *5 (W.D. La. July 14, 2014) Ivacated on unrelated grounds, 819 F.3d 758, (5th Cir. April 19, 2016)]; Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217, 1225 (D. Utah 2013); Sclafaniv. Air & Liquid Sys. Corp., 14F. Supp. 3d 32 Id. 1351, 1356-1357 (C.D. Cal. 2014); Foucha v. Ford Motor Co., No. 8-630, 2013 U.S. Dist. LEXIS 7861, 2013 WL 214378, at *2 (D. Utah Jan. 18, 2013). Likewise, applying the Daubert factors, courts have found that the theory cannot be tested, has not been publishedin peer-reviewed works, and has no known error rate. E.g., Yates, [113 F. Supp. 33 3d at 846-47]. Similarly, in Davidson v. Georgia Pac#ic LLC, the U.S. District Court for the Western District of Louisiana rejected a causation opinion based on the "every exposure" theory, concluding that the theory "is not testable, and consequently cannot have an error rate, thus 34 failing to satisfy two Daubert factors'V' Davidson also faulted the expert testimony for its failure to rely on any data ..,'that would show that any particular defendant's product actually caused [decedent] to develop mesothelioma.,,35 More recently, the U.S. District Court for the Eastern District of Louisiana rejected the "every significant exposure" theory as not materially different from the "every exposure" theory and concluded, "though skillfullycloaked, Plaintiffs' experts' conclusions... again impermissiblyrest on little more than the experts' ipse dixit.,,36 Several Florida courts have excluded every exposure opinions under a Daubert analysis. See Crane Co. v. DeLisle, 206 So. 3d 94 (Fla. 4',th DCA 2016)(reversedon application ofDaubert standard versus Frye - prior to Florida Supreme Court adoption of Daubero(every exposure opinions of Dr. Dalhgren not supported by sufficient data or based upon reliable principles and th methods); Reaves v. Armstrong WorldIndustries, Inc., 569 So. 2d 1307 (Fla. 4L DCA 1990). After extensive Frye and Daubert type hearings, courts in several jurisdictions have 37 excluded the "any exposure" and "any exposure above background" theories. There are at least 33 Fedros, 119 F. Supp. 3d at 562-63. 34 Davidson v. GeorgiaPacific LLC, No. 12-1463, 2014 U.S. Dist. LEXIS 95559, *13-14 (W.D.La. July 14, 2014). 35 Id. At *13-14. 36 Bell, 2016 U.S. Dist. LEXIS 138817, *3-4 (E.D.La. Oct 6, 2016), see also Comarde#e, 76 F. Supp. 3d at 632-35. 37 See Behrens, M.. & Anderson, -W., The "Any Exposure" Theory: An Unsound Basis for Asbestos Causan-on and Expert Tesn-mony, 37 S.W.U. L. Rev. 480 (2008) (summarizing case law rejecting "any exposure" theory). twenty courts that have rejected the "every exposure" opinion and its variants, including the 38 39 40 Texas Supreme Court, Texas MI)L,- Pennsylvania Supreme Court,- Arkansas Supreme 41 42 43 44 Court, Pennsylvania trial courts,' Washington trial courts,= a Louisiana trial court, a Utah 45 46 47 trial court,- Georgia appellate court, a North Carolina trial court, and a Mississippi trial 48 court. Accordingly, any opinion that Mr. Rogers' cumulative exposures contributed to his mesothelioma is simply a variation on the "every exposure" opinion,and should be excluded. III. CONCLUSION The trial judge's gatekeeping function with respect to expert testimony is to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. In this case, all of Plaintiffs' experts must be excluded from testifying as to the "any exposure above background theory." Further, J-MM reserves its right to supplement this motion and memorandumpending further discoveryand investigation. 38 See Bostic v. Georgia-Pacific Corp., 439 S.W. 3d 332 (Tex. 2014)-, Borg-WarnerCorp. v. Flores, 232 S.W.3d 765 (Tex. 2007) (holding that a person's exposure to "some" respirable fibers is insufficient to show that a product containingasbestoswas a substantialfactorin causing asbestosis). 39 See LetterRuling, In re Asbestos Litig., Cause No. 2004-03964 (Tex. Dist. Ct. Jan. 20,2004). 40 See Gregg, 943 A.2d 216 (Pa. 2007). 41 See Chaversv. General Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002) (holdingthat "competent medical evidence presented in this case does not support the conclusion that a one-time exposure to asbestos- containingbrakes was a substantialcause of Mr. Chaver'smesothelioma."). 42 See In re Toxic Substances Cases, no. A.D. 03-0319, 2006 WL 2404008 at 7-8 (Pa. Ct. Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., -No. 11484 CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007); In re Asbestos Litig., Certain Asbestos Friction Cases Involving Chrysler LLC, No. 0001 Control #084682 (Pa. Ct. Com. Pl. Sept 24,2008). 43 See Anderson v. Asbestos Corp., No. 05-2-04551-5SEA,slip op. at 144-45 (Wash. King County Super. Ct. Oct. 31, 2006); Freev. Ametek,-No.07-2-04091-9-SEA(Wash. King County Super. Ct. Feb. 29, 2008). 44 See Degrasse v. Anco Insulan-ons,No. 2007-12736 (Orleans Civ. Dist. Ct., La., Sep. 13, 2007). 45 Smith v. FordMotor Co., 2013 WL 214378 (D. Utah 2013). 46 See Butler et al., v. UnionCarbide Corporation, 301 Ga.App. 21, 712 S.E.2d 537 (2011). 47 See Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 846 (E.D.N.C. 2015), reconsiderationdenied, 143 F. Supp. 3d 386 (E.D.N.C. 2015). 48 See Nix v. AGCO Corporan-on, et al., No. 2010-85-CV8 (CircuitCourt of Jones County, MS, Sept. 21, 2011). WHEREFORE, for the reasons fully set forth herein Defendant J-M Manufacturing Company, Inc. respectfully requests that this Court grant its Motion to Exclude Plaintiffs' experts' testimony at trial or alternatively, that such testimony be limited to those opinions that are ruled to be admissible in accordance with the standards established in Daubert as codified by § 90.702, Fla. Stat. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 23, 2021, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal which will provide notice to all Counsel of Record. /s/ Jeffrey W. Kirsheman JEFFREY W. KIRSHEMAN, ESQUIRE Florida Bar No. 0059341 Fisher Rushmer, P.A. Post Office Box 3753 Orlando, FL 32802-3753 Tel: 407-843-2111 / Fax: 407-422-1080 com [rm.com Attorneys for Defendant, J-M Manufacturing Company, Inc. Pageu;, 68 COMMONWEALTH OF nSSACHUSETTS Suffolk County, ss. Superior Court, Department MICV-05-4314 of the Trial Caurt ROBERT BAXR i? i V: '.hLFA IAVAL, ET AL * *0* 1* *. it ******#***9, CEOSS-m[At. IbmTION OF.DR, ARNEEP-R,-BRODY BY ATTY. CARY SCRACATER I (Jibccerpted'from Jkry Tl:ial " Vol. rV) Appeaj:ancee: Edward Cokdy, Ron Eddins, David Greenstone, for the plaintiff John Barooehian, Patrick Tracey, for the Defendant, A. W. Chewterton got A. Bernard Guejmueziad, for the Defendant, kll,iott Turbo Maghlnery Co:reany 'diary,Bohaoter, Craig Wakeler, Ray Harwie, fp*.the , Defendant, Garlbck Scaling Technologies . Ollie Harton, David Stillman, Eqr the Derendaut, John Crane, Inc. Judith Ferritang, Eor the Defendant, Warrdil'Pumps Michael Molland, Jamee Ray, Joey Ilea Miranda, for the De:Kendart, Yarway Suffolk County Couxtbcruae 1 Courtroom #403 Three Pemberton Square . Boston, MA 02108 Tueeday, July 18, 4006 MZore i Wly. .Jl -Chrgtiai 0mii,-OFEia1.1 COWEMOIEer 617-788 -6183 , i Exhibit "2" I Excerpted from Jury Trial IV - 37 1 second queet,ion, 2 Your opinion is that each and 3 every exposure contributea to cauae meeothelioma, 4 is that correct? 5 A. Right. 6 Q. And you told us that the opinions you ahared with 7 thie jury ara the vmry same opinions that you 8 share with your scientific colleaguea, right? 9 A. In general, su:re. 10 Q. Okay. And yuu've published Bomething like 145 ? 11 artielas? ' ' 12 A. Right. 13 Q Yet in none of . your articles, where you were 14 Bharing your opinions with salentiute, have you r 15 ever written that each and avery exposure 1G contributes to cause mesothelioma, correct7 i 17 A. Right. That'B Bot 4 scientific test that'g been 18 carried out on that. That'e right, 19 Q. And, in fact, there are no data that establish *0 the concept that all exposures contribude to 21 cailee mesothelioma such that it would allow that 22 codcept to be publiahed in the peer-reviewed 23 medical' literature, correct? 24 A. , Right. As I.way, that is not something that can I Excerpted f#om Jury Trial IV - 38 t 1 be tested. It's one that'a intuitive.. It'e one 2 that scientiets would draw, as I have, and 3 ethere heve drawn opinions, based on what we knoy 4 about what fibers do and.what they Can do, 5- Q. 80 when you come to testify. you're testifying to 6 . this opinion, but it is an opinion that is not 7 supported by ecientifia data and is not a 8 published opinion, correct? 9 A. .Well, you juat said two things. 10 'Q. Yes, I did. 11 A. Yes. And so 'what we need to do is divide them 12 ' Q. I .apologize. 13 A. That's okay. I accept your apology, 14 The firgt thing is that wa're i I5 talking about Ehe bssia for the statement. And- 16 the baeia for the statement i&1 what we kniow that 17 . is published about agbestos fibers. 10 The seaond one ia the point aMt 19 it appearing in scientific papers And there, . ' 20 you'ra right. Because, I mean, itr# not 21 something that's been put tbgether as a , I 22 scientifia . principle and tested. 23 Q. Okay. Well, when a scientiat has a principle 24 that he can put *ogut:her as a auientific i Excerpted from Jury Trial IV - 39 1. principle and test, and have subject to the 2 scrutiny of hie peers, other,saientigts, an I 3 opinion, he puts it in writing, and than other 4 soientieta can use scientiflc methode to either 5 confirm or attack it, right? 6 A. - I agree. 7 Q. And this opinion that you're givi