“[A] trial judge has considerable leeway in determining how to test an expert’s reliability.”
How later courts described this case
- “[A] trial judge has considerable leeway in determining how to test an expert’s reliability.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FRANK P. RAGUSA, JR.
CIVIL ACTION
VERSUS
NO. 21-1971
LOUISIANA GUARANTY
INSURANCE ASSOCIATION, ET AL. SECTION: “J”(5)
ORDER AND REASONS
Before the Court is a Daubert Motion to Exclude the Testimony of Dr. Stephen
Terry Kraus and Dr. Rodney Landreneau (Rec. Doc. 371) filed by The Dow Chemical
Company, Exxon Mobil Corporation, ExxonMobil Oil Corporation, Murphy Oil USA,
Inc., Legacy Vulcan, LLC, CF Industries Nitrogen, LLC, Syngenta Crop Protection,
LLC, Marathon Petroleum Company LP, Pharmacia LLC f/k/a Pharmacia
Corporation f/k/a Monsanto Company, Riley Power, Inc., Rubicon LLC, Union
Carbide Corporation, Bayer Cropscience, Inc., and Hexion Inc (“Defendants”).
Plaintiff Frank P. Ragusa, Jr. opposes the motion; (Rec. Doc. 477); to which Murphy
Oil and Exxon replied; (Rec. Doc. 561, 569). Considering the motion and legal
memoranda, as well as the record and applicable law, the Court finds that the motion
to exclude (Rec. Doc. 371) should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
The facts of this case have been laid out in greater detail in previously issued
Orders and Reasons. On July 16, 2021, Frank P. Ragusa, Jr. filed suit in Civil District
Court for the Parish of Orleans, asserting Louisiana negligence and intentional tort
claims for asbestos exposure against numerous defendants. Huntington Ingalls, Inc.
(“Avondale”) removed the case to this Court on October 26, 2021.
PARTIES’ ARGUMENTS
Defendants seek to exclude the testimony of Plaintiff’s radiation oncology
expert Dr. Stephen Terry Kraus and thoracic surgery expert Dr. Rodney Landreneau.
Defendants argue that, given the inadmissibility of the “no safe level of exposure” or
“every exposure” theory, Dr. Kraus and Dr. Landreneau should be precluded from
testifying at trial regarding any asbestos exposure from any particular product or at
a particular jobsite. Defendants point to Dr. Kraus’s deposition testimony as proof
that he will rely on the “every exposure above background theory,” specifically his
answers to questions regarding whether there is a threshold level of exposure
required to be a significant contributing factor for developing mesothelioma.
Defendants also emphasize Dr. Landreneau’s deposition testimony, including his
answers to questions regarding his belief that any exposures below background will
not cause mesothelioma. Defendants also argue that the doctors’ expert reports do
not rely on a quantitative or qualitative assessment and instead simply assume that
each and every exposure to asbestos is above background and thus is a cause of
Plaintiff’s mesothelioma, so the doctors’ specific causation opinions should be
excluded.
Plaintiff responds by arguing that the doctors do not rely upon an above
background theory, nor is it even their opinion that all of Plaintiff’s exposures were
significant. Plaintiffs note that Dr. Kraus specifically responded what the background
level of asbestos is provided by literature and the EPA, and he also testified that a
substantial contributing factor is “a question of more than” anything above
background. Dr. Kraus explained that he considers Plaintiff’s exposure history to
specific products and worksites as well as scientific literature discussing exposure
concentrations to which Plaintiff was exposed. He testified that with the removal of
asbestos-containing Garlock gaskets, literature shows exposure concentrations from
0.69 f/cc up to 144.2 f/cc, which is orders of magnitude above the OSHA and NIOSH
permissible exposure limits, as well as above the background concentrations. He
provided similar analysis for friction exposures from the brakes in Plaintiff’s crane.
Plaintiff argues that his opinion that these exposures are significant is not based on
the fact that they are merely above background as Defendants suggest but are based
on the fact that they are well above occupational health standards and above
exposures that have been shown in the literature to cause disease.
As to Dr. Landreneau, Plaintiff argues that he also reviewed Plaintiff’s
exposures and the literature’s descriptions of those exposures, and found it that
Plaintiff’s exposures exceeded the levels known to cause disease. Plaintiff argues
that, although both doctors are aware of and referenced literature showing that short
exposure durations and low exposure levels cause disease, Drs. Kraus and Landrenau
did not reach their opinion that Plaintiff’s exposures were significant just because
they were above background.
DISCUSSION
Defendants move to exclude Dr. Kraus and Dr. Landrenau from testifying
regarding the specific causation of Plaintiff’s mesothelioma from specific products and
worksites on the basis of reliability. A qualified expert witness may testify if “(a) the
expert's scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702. The United States Supreme Court’s decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the
analytical framework for determining whether expert testimony is admissible under
Rule 702.
The reliability of expert testimony “is determined by assessing whether the
reasoning or methodology underlying the testimony is scientifically valid.” Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). A number of nonexclusive
factors may be relevant to the reliability analysis, including: (1) whether the
technique at issue has been tested; (2) whether the technique has been subjected to
peer review and publication; (3) the potential error rate; (4) the existence and
maintenance of standards controlling the technique's operation; and (5) whether the
technique is generally accepted in the relevant scientific community. Burleson v. Tex.
Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004). The reliability inquiry
must remain flexible, however, as “not every Daubert factor will be applicable in
every situation; and a court has discretion to consider other factors it deems relevant.”
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see also Runnels v. Tex.
Children's Hosp. Select Plan, 167 F. App'x 377, 381 (5th Cir. 2006) (“[A] trial judge
has considerable leeway in determining how to test an expert’s reliability.”).
Under Louisiana law, a plaintiff claiming asbestos-related injury must prove
“significant exposure to the product complained of to the extent that it was a
substantial factor in bringing about his injury.” Rando v. Anco Insulations Inc., 16
So. 3d 1065, 1091 (La. 2009). The plaintiff must show general causation—that a
substance is capable of causing a particular injury or condition in the general
population—and specific causation—that a substance caused a particular
individual's injury. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.
2007). Expert testimony is required to establish causation, and a court may admit
specific-causation evidence only after the plaintiff has produced admissible evidence
on general causation. Id.
To show specific causation in a toxic tort case, a plaintiff must present
“scientific knowledge of the harmful level of exposure to a chemical, plus knowledge
that the plaintiff was exposed to such quantities.” Curtis v. M&S Petroleum, Inc., 174
F.3d 661, 670 (5th Cir. 1999). The law does not require a plaintiff to show the precise
level of his exposure to the toxic substance to hold a defendant liable. Id. at 671. More
recently, the Fifth Circuit explained that, even if a plaintiff was only exposed to
asbestos for a short period for an employer and had longer exposure working for
others, it cannot be said the relatively short asbestos exposure was not a substantial
factor in causing his mesothelioma. Williams v. Boeing Co., 23 F.4th 507, 512 (5th
Cir. 2022) (quoting Rando, 16 So. 3d at 1091). In Williams, the fact that the plaintiff’s
expert opined that the plaintiff would have been exposed “frequently to above-average
ambient background levels of asbestos” created a disputed issue of fact regarding
whether Williams was exposed to respirable asbestos, thus reversing the trial court’s
summary judgment. Id. at 513.
In a previous case before this Court, the Court excluded Dr. Kraus’s specific
causation opinions in an asbestos case because, in that case, his opinions were an
unreliable product of the “every exposure above the background” theory. Vedros v.
Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556 (E.D. La. 2015). In that
case, this Court found that Dr. Kraus did not rely on a sufficient qualitative
evaluation of the plaintiff’s history of asbestos exposures because Dr. Kraus simply
testified that “if someone develops malignant mesothelioma and they have an
asbestos exposure, that asbestos exposure has caused the malignant mesothelioma.”
Id. at 565. Notably, when asked whether, by including all exposures above
background, Dr. Kraus would be including exposures that, in fact, did not cause the
disease, Dr. Kraus answered “who knows? I can't answer that question of which ones
are causative and which ones are not.... All I can say is they are all causative. Every
incidence of asbestos exposure is causative.” Id. The Court found that this reasoning
simply recited the “every exposure” theory and did not provide a specific causation
opinion that the plaintiff’s exposure to a particular defendant’s product was a cause
of her mesothelioma, so Kraus’s specific causation opinions were excluded. Id.
A motion seeking to exclude Dr. Kraus’s and Dr. Landrenau’s opinions as
reliant on the “every exposure theory” was also before this Court in 2019 in Savoie et
al. v. Huntington Ingalls, et al., Civil Action No. 15-1220. In a hearing denying that
motion, the Court noted that Dr. Kraus is a licensed medical doctor, has been treating
mesothelioma patients since 1982, and is board certified in radiation oncology, which
includes the diagnosis and treatment of cancers. (Hearing Transcript at 30, Savoie et
al. v. Huntington Ingalls, Inc., et al., No. 15-1220 (E.D. La. Apr. 3, 2019). The Court
also stated that Dr. Kraus indicated he has reviewed scientific literature discussing
the levels of exposure from Defendants’ products and compared them to the
occupational health standard to determine whether the exposure exceeded the
standard levels. Ultimately, the Court found that Dr. Kraus adequately supported
his methodology and cured the defects found in his specific causation opinions in
Vedros.
In this case, Defendants argue that Dr. Kraus reverted back to his inadmissible
methodology in Vedros. However, unlike in Vedros, Plaintiff has shown that Dr.
Kraus’s opinions are reliable, and Dr. Kraus’s deposition testimony shows that he did
not rely on the “everything above background” theory. Dr. Kraus reviewed Plaintiff’s
medical records and his deposition testimony regarding his exposure to Defendants’
products and at Defendants’ worksites and the methods used to disturb and
manipulate the products. (Kraus Report, Rec. Doc. 371-4, at 1-2). Dr. Kraus states
that he performed a qualitative cumulative assessment of Plaintiff’s asbestos
exposure by reviewing that deposition testimony, the reports of Gerard Baril and Dr.
James Millette, and scientific and medical literature confirming the high levels of
occupational asbestos exposure sustained by Plaintiff. Id. at 7. In making his
assessment, he cites to published studies regarding asbestos exposure and health
outcomes as well as occupational exposure standards. Id. at 15-36.
Dr. Kraus’s deposition testimony, including the excerpts Defendants provide,
also shows that he is not reliant on the “every exposure” or “every exposure above the
background” theories. After providing a summary of the scientific literature’s various
measurement of what constitutes “background” asbestos exposure, Dr. Kraus
ultimately concludes: “But what I’m saying is, brief and low level are significant
factors that are well recognized by the scientific community.” (Rec. Doc. 371-1, at 8-
9) (citing Kraus Deposition at 131). Asked “is the time that a person is exposed to
[asbestos] significant?” Dr. Kraus responded “Yes” and proceeded to elaborate that
the cumulative doses, individual’s history, kind of occupational exposure and source
of exposure all determine what is a “significant” exposure for an individual. Id. at 9.
None of this testimony demonstrates to the Court that Dr. Kraus relied on a theory
directly linking any exposure above background to a plaintiff’s injuries. Dr. Kraus’s
testimony aligns with the Fifth Circuit’s guidance on specific causation, which
considers the frequency of exposure to doses above-background; see Williams, 23
F.4th at 513; and does not require a precise level of exposure; see Curtis, 174 F.3d at
670. Thus, the Court finds that Dr. Kraus’s proposed testimony is based on sufficient
facts and data and is the product of reliable principles and methods.
Defendants seek to exclude Dr. Landrenau for the same reasons. Dr.
Landrenau is a board-certified thoracic surgeon with more than 30 years of
experience in diagnosing and treating lung cancer and mesothelioma. Dr. Landrenau
reviewed Plaintiff’s medical records and his deposition testimony regarding his
exposure to Defendants’ products and at Defendants’ worksites and the methods used
to disturb and manipulate the products. (Landrenau Report, Rec. Doc. 477-16, at 5-
6). Dr. Landrenau explicitly contradicts the “every exposure” theory in his report:
Even though it is recognized in the literature that brief or low levels cause
mesothelioma, the levels of exposure experienced by Frank Ragusa through his
work were neither brief nor low level. The exposures exceeded contemporary
standards. It is also recognized that as little as days, weeks, or months of
exposure are sufficient to cause mesothelioma. However, Mr. Ragusa’s
exposure duration far exceeds these durations.
Id. at 10. He cites to published studies documenting the levels of asbestos exposure
from various products and workplaces. Id. at 10-13. Additionally, like Dr. Kraus’s
deposition excerpts, Dr. Landrenau’s deposition testimony does not reflect an
agreement with the “every exposure above background” theory. Asked whether
exposures below background will not cause mesothelioma, he testified that “I can’t
really exclude the fact that lower levels could have caused [mesothelioma].” (Rec. Doc.
371-1, at 10) (citing Landrenau Deposition, at 94). The Court finds that this testimony
as well as Dr. Landrenau’s report both align with the Fifth Circuit’s guidance on
specific causation and are based on sufficient facts and data.
Defendants also argue that Dr. Kraus’s and Dr. Landrenau’s testimony should
be excluded because they are medical doctors, rather than experts in evaluating a
specific occupational exposure. “An expert witness is not strictly confined to his area
of practice, but may testify concerning related applications; a lack of specialization
does not affect the admissibility of the opinion, but only its weight.” United States v.
Wen Chyu Liu, 716 F.3d 159, 168-69 (5th Cir. 2013) Gnternal quotations omitted). 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.” Daubert, 509
U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)). These witnesses’
proposed testimony is based on their knowledge of the harmful level of exposure to
asbestos and evidence indicating that Plaintiff was exposed to such levels.
Defendants can appropriately raise the issue regarding the bases and sources of their
opinions on cross-examination.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ motion to exclude (Ree. Doc.
371) is DENIED.
New Orleans, Louisiana, this 30th day of March, 2023.
OAKY Sauce
LDA WA □□□
CARL J. BA RV
UNITED STAYES DISTRICT JUDGE
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