Dempster v. Lamorak Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CALLEN DEMPSTER et al. CIVIL ACTION

VERSUS NO. 20-95

LAMORAK INSURANCE CO. et al. SECTION: “G”(1)

ORDER AND REASONS

In this litigation, Plaintiffs Tanna Faye Dempster, Steven Louis Dempster, Janet Dempster

Martinez, Marla Dempster Loupe, Callen Dempster, Jr., Annette Dempster Glad, and Barnett

Dempster’s (collectively, “Plaintiffs”) allege that Decedent Callen L. Dempster (“Decedent”) was

exposed to asbestos and asbestos-containing products that were designed, manufactured, sold,

and/or supplied by a number of Defendant companies while Decedent was employed by

Huntington Ingalls Incorporated (“Avondale”).1 Pending before the Court is Plaintiffs’ “Daubert

Motion to Preclude the Testimony of Dr. Gail Stockman.”2 Defendants Bayer CropScience, Inc.,

as Successor to Rhone-Poulenc AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin

1 See Rec. Doc. 1-2; Rec. Doc. 1-8. On August 6, 2020, Tanna Faye Dempster, Steven Louis Dempster,

Janet Dempster Martinez, Marla Dempster Loupe, Callen Louis Dempster, Jr., Annette Ruth Dempster Glad, and

Barnett Lynn Dempster were substituted as plaintiffs for Louise Ella Simon Dempster. Rec. Doc. 239. Plaintiffs

bring claims against Lamorak Insurance Company, Huntington Ingalls Inc., Albert Bossier, Jr., J. Melton Garrett,

Eagle, Inc., Bayer Cropscience, Inc., Foster-Wheeler LLC, General Electric Co., Hopeman Brothers, Inc., McCarty

Corporation, Taylor-Seidenbach, Inc., CBS Corporation, Uniroyal, Inc., International Paper Company, Houston

General Insurance Company, Berkshire Hathaway Specialty Insurance Company, Northwest Insurance Company,

United Stated Fidelity and Guaranty Company, Fist State Insurance Company, The American Insurance Company,

Louisiana Insurance Guaranty Association, and the Traveler’s Indemnity Company. Rec Doc. 1-8 at 2–3.

2 Rec. Doc. 56.

Foster Company (“Amchem”) opposes the motion.3 Considering the motion, the memoranda in

support and in opposition, the record, and the applicable law, the Court denies the motion.

I. Background

In this litigation, Plaintiffs allege that Decedent was employed by Avondale from 1962 to

1994.4 During that time, Plaintiffs aver that Decedent was exposed to asbestos and asbestos-

containing products in various locations and work sites, resulting in Decedent breathing in

asbestos fibers and later developing asbestos-related cancer.5 Plaintiffs assert strict liability and

negligence claims against various Defendants.6

Decedent filed a “Petition for Damages” in the Civil District Court for the Parish of

Orleans, State of Louisiana, on March 14, 2018.7 Defendants Huntington Ingalls Incorporated,

Albert Bossier, Jr., J. Melton Garret, and Lamorak Insurance Company (the “Removing Parties”)

removed the case to the United States District Court for the Eastern District of Louisiana for the

first time on June 21, 2018.8 On January 7, 2019, this Court remanded the case to the Civil District

Court for the Parish of Orleans.9

Decedent passed away on November 24, 2018, and a First Supplemental and Amending

Petition for Damages was filed in state court substituting Decedent’s heirs as Plaintiffs on January

3 Rec. Doc. 158.

4 Rec. Doc. 1-2 at 5.

5 Id.

6 Id. at 7–8.

7 Id. at 2–3

8 Case No. 18-6158, Rec. Doc. 1 at 2.

9 Case No. 18-6158, Rec. Doc. 89.

17, 2019.10 Trial was scheduled to begin before the state trial court on January 13, 2020.11

However, on January 9, 2020, Avondale removed the case to the United States District Court for

the Eastern District of Louisiana for a second time.12 On January 28, 2020, the Court denied the

motion to remand, finding that this case was properly removed to this Court under the federal

officer removal statute.13

On February 25, 2020, Plaintiffs filed the instant motion in limine.14 On March 17, 2020,

Amchem filed an opposition to the instant motion.15 On April 6, 2020, Plaintiffs, with leave of

Court, filed a reply brief in further support of the motion.16 On May 5, 2020, the Court continued

the May 18, 2020 trial date due to COVID-19.17

II. Parties’ Arguments

A. Plaintiffs’ Arguments in Support of the Motion

Plaintiffs move the Court to issue an order excluding the testimony of Amchem’s expert

Dr. Gail Stockman because Plaintiffs argue her proposed testimony is unreliable.18 According to

Plaintiffs, Dr. Stockman will testify that asbestos did not contribute to Decedent’s lung cancer.19

10 Rec. Doc. 1-8.

11 Rec. Doc. 1-12.

12 Rec. Doc. 1.

13 Rec. Doc. 17.

14 Rec. Doc. 56.

15 Rec. Doc. 158.

16 Rec. Doc. 210.

17 Rec. Doc. 225.

18 Rec. Doc. 56-1 at 1–2.

19 Id. at 2.

Plaintiffs contend that Dr. Stockman did not review critical medical evidence including CT scans

and x-rays, which allegedly confirm that Decedent had asbestos-related bilateral pleural plaques

and interstitial fibrosis.20 Plaintiffs assert that other medical professionals, including at least one

expert retained by Defendants, considered this information to inform their opinions that asbestos

contributed to Decedent’s lung cancer.21 Plaintiffs note that Dr. Stockman disagrees with these

experts, but Dr. Stockman was unable to identify any substance other than asbestos that causes

both bilateral calcified pleural plaques and interstitial fibrosis, both of which Decedent had.22

Second, Plaintiffs assert that Dr. Stockman should be precluded from testifying that

“regardless of the amount one smoked or how long ago the person quit smoking, if one develops

lung cancer, smoking is the cause of the lung cancer regardless of the amount of asbestos to which

the person was exposed.”23 According to Plaintiffs, Dr. Stockman could not cite any literature

which supports the fact that one who had “less than a ten (10) pack year history of smoking and

quit more than thirty (30) years ago” would be at an increased risk of lung cancer.24 Plaintiffs

contend Dr. Stockman’s testimony in this regard is unsupported by the scientific and medical

literature and constitutes unsupported speculation.25 Accordingly, Plaintiffs submit that Dr.

Stockman’s testimony should be precluded.26

20 Id. at 2–3.

21 Id. at 3.

22 Id.

23 Id.

24 Id. at 5.

25 Id.

26 Id.

B. Amchem’s Arguments in Opposition to the Motion

In opposition, Amchem asserts that Dr. Stockman is an expert pulmonologist with over 38

years of experience in pulmonary medicine, internal medicine and critical care medicine.27

Amchem asserts that Decedent’s medical records reveal a 15-year smoking history.28 As a result,

Amchem contends that Dr. Stockman opined that Decedent had a primary squamous cell

carcinoma which was caused by his cigarette smoking.29

Amchem argues that Plaintiffs have not raised a viable challenge to either Dr. Stockman’s

qualifications or her methodology in formulating medical causation opinions in this case.30

Rather, Amchem asserts that Plaintiffs’ objections are to Dr. Stockman’s expert opinions based

on published, peer reviewed medical literature as related to the facts of this case.31 Amchem

asserts that these arguments are inappropriate under the Daubert standard and should instead be

raised on cross-examination.32

Amchem argues that Dr. Stockman is eminently qualified to offer her expert opinion as

to the cause of Decedent’s lung cancer, which is based on her review of Decedent’s medical

records, radiology, CT scans, and numerous articles in the medical and scientific literature.33

According to Amchem, Plaintiffs mistakenly argue that Dr. Stockman did not review Decedent’s

27 Rec. Doc. 158 at 1.

28 Id. at 2.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

CT scans and radiology films.34 In fact, Amchem asserts that Dr. Stockman reviewed Decedent’s

CT scans and radiology films, including: (1) a CT spine scan dated March 25, 2016; (2) a chest

x-ray dated September 30, 2013; (3) a chest PA x-ray dated March 25, 2015; (4) a CT scan of the

thorax with contrast dated November 22, 2017; (5) a PET-CT scan dated December 26, 2017; (6)

a chest PA x-ray dated August 15, 2018; and (7) a PET-CT scan dated July 10, 2018.35 According

to Amchem, Dr. Stockman agreed that Decedent had bilateral calcified pleural plaques.36

However, Amchem notes that Dr. Stockman opined that pleural plaques alone are not sufficient

to attribute a lung cancer to asbestos exposure because “there are other things that cause calcified

pleural plaques.”37

Amchem asserts that Dr. Stockman is of the opinion “that in order to attribute lung cancer

to asbestos exposure, a diagnosis of either asbestosis, or a lung fiber burden consistent with the

development of asbestosis, is required.”38 According to Amchem, Dr. Stockman testified that the

diffuse interstitial fibrosis seen on Decedent’s CT scan is not indicative of asbestosis since

“asbestosis starts in the lung basis, and it’s very unusual to find fibrotic changes above the level

of the main parenchyma with asbestosis.”39 Additionally, Amchem notes that Dr. Stockman

found that Decedent was diagnosed with chronic obstructive pulmonary disease, likely caused by

his cigarette smoking history, which is a risk factor for squamous cell carcinoma.40 Amchem

34 Id. at 4.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id. at 5.

40 Id.

asserts that Dr. Stockman’s opinion that Decedent’s squamous cell carcinoma was caused by his

smoking history is based on her review of Decedent’s medical records, his radiology films and

scans, his deposition testimony, the medical and scientific literature, Dr. Stockman’s education,

and over forty-year experience in pulmonology medicine.41

Finally, Amchem asserts that Dr. Stockman cited various texts in the medical literature in

forming her opinion that cigarette smoking caused Decedent’s lung cancer.42 Amchem contends

that Dr. Stockman’s opinions regarding the risk of lung cancer, even after quitting smoking, are

well documented and supported by the literature.43 Accordingly, Amchem argues that Plaintiffs’

motion must be denied because it merely challenges the conclusions with which Plaintiffs do not

agree, rather than Dr. Stockman’s qualifications or methodology.44

C. Plaintiffs’ Arguments in Further Support of the Motion

In reply, Plaintiffs assert that Amchem’s argument that Dr. Stockman reviewed CT scans

and radiological materials is contradicted by Dr. Stockman’s deposition testimony.45 Specifically,

Plaintiffs note that Dr. Stockman testified that she was unable to open the November 22, 2017

CT scan results on her computer.46 Additionally, although Amchem claims that Dr. Stockman’s

opinions regarding the risk of former smokers for developing lung cancer are supported by

various medical articles, Plaintiffs assert that Dr. Stockman could not cite to any literature to

41 Id. at 6.

42 Id.

43 Id. at 7.

44 Id.

45 Rec. Doc. 210 at 1.

46 Id. at 1–2.

support an opinion that an individual who had less than a ten year history of smoking and quit

more than thirty years ago would be at an increased risk of lung cancer.47 Plaintiffs claim that Dr.

Stockman’s testimony in this regard is unsupported by the scientific and medical literature and

constitutes unsupported speculation.48

III. Legal Standard

The district court has considerable discretion to admit or exclude expert testimony under

Federal Rule of Evidence 702.49 Rule 702, which governs the admissibility of expert witness

testimony, provides that an expert witness “qualified . . . by knowledge, skill, experience, training

or education,” may testify when “scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue.”50 For the testimony to

be admissible, Rule 702 establishes the following requirements:

(1) the testimony [must be] based on sufficient facts or data,

(2) the testimony [must be] the product of reliable principles and methods, and

(3) the expert [must reliably apply] the principles and methods to the facts of the case.51

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that Rule 702

requires the district court to act as a “gatekeeper” to ensure that “any and all scientific evidence

admitted is not only relevant, but reliable.”52 The court’s gatekeeping function thus involves a

47 Id. at 3.

48 Id.

49 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d

358, 371 (5th Cir. 2000).

50 Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

51 Fed. R. Evid. 702.

52 Daubert, 509 U.S. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying

that the court’s gatekeeping function applies to all forms of expert testimony).

two-part inquiry into reliability and relevance. First, the court must determine whether the

proffered expert testimony is reliable. The party offering the testimony bears the burden of

establishing its reliability by a preponderance of the evidence.53 The reliability inquiry requires a

court to assess whether the reasoning or methodology underlying the expert’s testimony is valid.54

The aim is to exclude expert testimony based merely on subjective belief or unsupported

speculation.55

In Daubert, the Supreme Court identified a number of factors that are useful in analyzing

reliability of an expert’s testimony: (1) whether the theory has been tested; (2) whether the theory

has been subject to peer review and publication; (3) any evaluation of known rates of error; (4)

whether standards and controls exist and have been maintained with respect to the technique; and

(5) general acceptance within the scientific community.56 In Kumho Tire Co. v. Carmichael, the

Supreme Court emphasized that the test of reliability is “flexible” and that Daubert’s list of

specific factors does not necessarily nor exclusively apply to every expert in every case.57 The

overarching goal “is to make certain that an expert, whether basing testimony on professional

studies or personal experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field.”58 The court must also determine

whether the expert’s reasoning or methodology “fits” the facts of the case and whether it will

53 See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB

Litig., 35 F.3d 717 (3d Cir. 1994)).

54 See Daubert, 509 U.S. at 592–93.

55 See id. at 590.

56 See id. at 592–94.

57 Kumho Tire, 526 U.S. at 142; see also Seatrax, 200 F.3d at 372 (explaining that reliability is a fact-

specific inquiry and application of Daubert factors depends on “nature of the issue at hand, the witness's particular

expertise and the subject of the testimony”).

58 Kumho Tire, 526 U.S. at 152.

thereby assist the trier of fact to understand the evidence—in other words, whether it is relevant.59

A court’s role as a gatekeeper does not replace the traditional adversary system,60 and “[a]

review of the caselaw after Daubert shows that the rejection of expert testimony is the exception

rather than the rule.”61 As the Supreme Court noted in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.”62 “As a general rule,

questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned

that opinion rather than its admissibility.”63

IV. Analysis

Plaintiffs move the Court to issue an order excluding the testimony of Amchem’s expert,

Dr. Gail Stockman, because Plaintiffs argue her proposed testimony is unreliable.64 Plaintiffs

specifically object to two of the opinions reached by Dr. Stockman. The Court addresses each of

these objections in turn.

First, Plaintiffs argue that Dr. Stockman proposed testimony that asbestos did not

contribute to Decedent’s lung cancer is unreliable because Dr. Stockman did not review critical

medical evidence including Decedent’s CT scans and x-rays.65 In response, Amchem argues that

59 See Daubert, 509 U.S. at 591; Fed. R. Evid. 702.

60 See Daubert, 509 U.S. at 596.

61 Fed. R. Evid. 702 advisory committee’s note, “2000 Amendments.”

62 Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

63 United States v. 14.38 Acres of Land, 80 F.3d 1074, 1077 (5th Cir.1996) (internal citations and quotation

marks omitted).

64 Rec. Doc. 56-1 at 1–2.

65 Id. at 2–3.

Dr. Stockman’s opinion is based on her review of Decedent’s medical records, radiology, CT

scans, and numerous articles in the medical and scientific literature.66

In forming her expert opinion, Dr. Stockman reviewed many of Decedent’s CT scans and

radiology films, including: (1) a CT spine scan dated March 25, 2016; (2) a chest x-ray dated

September 30, 2013; (3) a chest PA x-ray dated March 25, 2015; (4) a CT scan of the thorax with

contrast dated November 22, 2017; (5) a PET-CT scan dated December 26, 2017; (6) a chest PA

x-ray dated August 15, 2018; and (7) a PET-CT scan dated July 10, 2018.67 Dr. Stockman’s notes

indicate that she was “unable to open” the results of a November 22, 2017 CT chest scan.68 During

her deposition, Dr. Stockman confirmed that she was unable to open that document on her

computer.69 During her deposition, Dr. Stockman also testified that she did not review a July 20,

2017 x-ray.70 Plaintiffs have not shown how Dr. Stockman’s failure to consider the results of

these two diagnostic tests renders her entire opinion unreliable. Dr. Stockman considered the

results of seven diagnostic tests performed on Decedent between 2013 and 2018. To the extent

that Dr. Stockman failed to consider the results of other diagnostic tests, Plaintiffs may raise this

issue on cross-examination.

Second, Plaintiffs assert that Dr. Stockman’s opinion that “regardless of the amount one

smoked or how long ago the person quit smoking, if one develops lung cancer, smoking is the

cause of the lung cancer regardless of the amount of asbestos to which the person was exposed”

66 Rec. Doc. 158 at 2.

67 See Rec. Doc. 158-5, Rec. Doc. 158-6 at 7–8.

68 Rec. Doc. 158-6 at 7–8.

69 Rec. Doc. 158-2 at 31.

70 Id.

is unsupported by scientific and medical literature.71 In response, Amchem asserts that Dr.

Stockman cited various medical literature in forming her opinion that cigarette smoking caused

Decedent’s lung cancer.72

During her deposition, Dr. Stockman testified, as follows:

I encourage people never to smoke because I don’t think that anybody can tell you

as an individual how many years or how many cigarettes you can smoke without

putting you at an increased risk. I can tell you that the medical literature is very

clear that when you stop smoking, your risk of lung cancer no longer exponentially

increases as it would if you continued to smoke, but it primarily levels off. It may

go down just a little bit, but it mainly levels off until you hit your 70s, at which

point the effects of aging kick in and the risk of lung cancer again begins to

exponentially increase, even if you have stopped smoking 30 or 40 or 50 years

ago.73

Dr. Stockman cited with various medical articles to support this opinion, including: (an

article by J. Peto in the British Journal of Cancer titled “That Lung Cancer Incidence Falls in Ex-

Smokers: Misconceptions” and an article by Michael T. Halpern published in the Journal of the

National Cancer Institution titled “Patterns of Absolute Risk of Lung Cancer Mortality in Former

Smokers.”74

Plaintiffs’ counsel then posed a specific hypothetical to Dr. Stockman:

Q. Can you cite me to a single article that says that one who has less than a 10-

pack-year history of smoking, having quit more than 30 years before a diagnosis

of lung cancer, that you can attribute smoking to the lung cancer? Can you cite me

to a single article?

A. No, I can’t cite an article that would be written about that.75

71 Rec. Doc. 56-1 at 4–5.

72 Rec. Doc. 158 at 6.

73 Rec. Doc. 158-2 at 22.

74 Id. See also Rec. Doc. 158-10, Rec. Doc. 158-11.

75 Rec. Doc. 158-2 at 42.

Plaintiffs have not shown that Dr. Stockman’s opinion is unreliable based solely on her inability

to cite an article that would support this specific hypothetical. “As a general rule, questions

relating to the bases and sources of an expert’s opinion affect the weight to be assigned that

opinion rather than its admissibility and should be left for the jury’s consideration.””° Plaintiffs

can raise this issue on cross-examination. Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ “Daubert Motion to Preclude the Testimony

of Dr. Gail Stockman’”’” is DENIED.

NEW ORLEANS, LOUISIANA, this _11th day of September, 2020.

NANNETTE JOEFIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

7 14.38 Acres of Land, 80 F.3d at 1077 (internal citations and quotation marks omitted).

7 Rec. Doc. 56.

13