# Settlemyer v. Borg-Warner Morse Tec, LLC

> District Court, W.D. North Carolina · December 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10257944

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** December 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10257944

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:19-cv-00344-MR-WCM

DAVID L. SETTLEMYER and )
JAN SETTLEMYER, )
)
Plaintiffs, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
BORG-WARNER MORSE TEC, )
LLC, et al., )
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on the Defendants’ Daubert1
Motions to Exclude the Testimony of the Plaintiffs’ Expert Edwin Holstein
[Docs. 171, 179, 180, 184, 188, 196]; the Defendant Daimler Trucks North
America LLC’s Daubert Motion to Exclude the Cumulative Exposure Opinion
as Evidence of Specific Causation [Doc. 205]; the Plaintiffs’ Daubert Motion
to Exclude Speculative, Irrelevant and/or Cumulative Expert Testimony [Doc.

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
178]; and the Plaintiffs’ Daubert Motion to Exclude the Causation Opinions
of Defendants’ Expert Witnesses [Doc. 202].2

I. BACKGROUND
The Plaintiffs David L. Settlemyer and Jan Settlemyer filed this
personal injury action on December 12, 2019, alleging that Mr. Settlemyer

contracted mesothelioma from breathing in asbestos dust while working as
an automobile and truck mechanic at Davis Oil Company in Statesville, North
Carolina from 1979 through 1994 and at three other jobs.3 [Doc. 1].
Specifically, the Plaintiffs allege that Mr. Settlemyer was exposed to

asbestos dust when he and other mechanics serviced the brakes and
clutches of various semi-trucks, trailers, and other vehicles at Davis Oil. [Id.

2 By way of a separate Order, the Court has granted summary judgment to a number of
the Defendants who filed Daubert motions in this case, including Daimler Trucks North
America, LLC, ZF Active Safety US Inc., BWDAC, Inc, and PACCAR, Inc. The bases for
granting summary judgment to these Defendants did not depend on the resolution of the
issues raised in these Daubert motions. Further, because the issues raised by these now
dismissed Defendants largely overlap with issues raised by the other Defendants who
remain in this action, the Court will proceed to address all of the pending Daubert motions.

3 The Plaintiffs allege that Mr. Settlemyer was also exposed to asbestos while employed
at Clean Air Systems in Statesville, North Carolina from approximately 1994 until 1998;
at Dyno Nobel Piedmont Explosives in Olin, North Carolina from 1998 until 2002; and at
Purdue Farms in Statesville, North Carolina from approximately 2002 to the present.
[Doc. 1: Complaint at ¶ 13]. The Plaintiffs also allege that Mr. Settlemyer was exposed
to various asbestos-containing products during non-occupational work in the 1970s,
including home and automotive maintenance and repair work. [Id. at ¶ 14]. The
Defendants that remain in this action are alleged to be responsible for asbestos-
containing products to which Mr. Settlemyer alleges he was exposed to while employed
at Davis Oil from 1979 to 1994.
2
at ¶¶ 13, 15]. In their Complaint, the Plaintiffs assert four causes of action:
(1) “Negligent Failure to Warn, Defective Design”; (2) “Breach of Implied

Warranty”; (3) “Negligence, Negligent Retention and Supervision”; and (4)
“Gross Negligence, Willful, Wanton, and Reckless Conduct,” for which the
Plaintiffs seek punitive damages. [Id. at 4-18].

The Defendants now move pursuant to Rules 403, 702, and 703 of the
Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), to specifically prohibit the Plaintiffs’ expert, Dr.
Edwin Holstein, from testifying as to specific causation of the Plaintiff’s

mesothelioma. [Docs. 171, 179, 180, 184, 188, 196]. Additionally, the
Defendant Daimler Trucks North America LLC (“DTNA”) moves to exclude
the testimony of any of the Plaintiffs’ experts, including Dr. Holstein and Dr.

Brent Staggs, to the extent that they seek to offer a “cumulative exposure”
opinion. [Doc. 205].
The Plaintiff in turn seek to exclude any speculative, irrelevant and/or
cumulative expert testimony from the Defendants’ experts.4 [Doc. 178].

The Court held a hearing on these motions on June 25, 2021.

4 The Plaintiffs also filed a motion seeking to exclude the causation opinions of the
Defendants’ expert witnesses. [Doc. 202]. At the hearing on these motions, however,
the Plaintiffs’ counsel indicated that they intended to withdraw this motion. Accordingly,
the Plaintiff’s motion [Doc. 202] will be denied as moot.
3
II. STANDARD OF REVIEW
Rule 702 of the Federal Rules of Evidence permits a witness to provide

expert testimony 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. “Federal Rule of Evidence 702 appoints trial
judges as ‘gatekeepers of expert testimony’ to protect the judicial process

from the ‘potential pitfalls of junk science.’” Sardis v. Overhead Door Corp.,
10 F. 4th 268, 275 (4th Cir. 2021) (quoting in part United States v. Bonner,
648 F.3d 209, 215 (4th Cir. 2011)). In fulfilling this essential gatekeeping

function, a trial court must “ensure that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Nease v. Ford Motor
Co., 848 F.3d 219, 229-30 (4th Cir. 2017) (quoting Daubert, 509 U.S. at 597)
(emphasis in original).

An expert’s opinion is “reliable” if it is “based on scientific, technical, or
other specialized knowledge and not on belief or speculation,” and if any
inferences derived by the expert are “derived using scientific or other valid

methods.” Nease, 848 F.3d at 229 (quoting Oglesby v. Gen. Motors Corp.,
4
190 F.3d 244, 250 (4th Cir. 1999)). Daubert provides a number of
“guideposts” to assist trial courts in determining the reliability of a proffered

expert opinion: (1) whether the expert’s theory or technique can, or has been,
tested; (2) whether the theory or technique has been subject to peer review
and publication; (3) in the case of a particular technique, the known or

potential rate of error; and (4) whether the methodology is generally accepted
in the witness’s field of expertise. Nease, 848 F.3d at 229 (citing Daubert,
509 U.S. at 593-94). These guideposts, however, are not exhaustive, as the
relevance of some factor may “depend[ ] on the nature of the issue, the

expert’s particular expertise, and the subject of his testimony.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 150 (1999). A trial court has “broad
latitude” to determine whether these guideposts are “reasonable measure of

reliability in a particular case.” Id. at 153.
An expert’s opinion is “relevant” if it has “a valid scientific connection
to the pertinent inquiry” and helps “the trier of fact to understand the evidence
or to determine a fact in issue.” Daubert, 509 U.S. at 592. “Simply put, if an

opinion is not relevant to a fact at issue, Daubert requires that it be excluded.”
Sardis, 10 F. 4th at 281.

5
III. DISCUSSION
A. Defendants’ Motions to Exclude Opinions of Edwin Holstein

Dr. Holstein is a licensed physician and is Board Certified in Internal
Medicine and Preventative Medicine, with a subspecialty in Occupational
Medicine. [Holstein Report at 2]. He was trained in preventive and

occupational medicine at Mount Sinai School of Medicine and became a
faculty member at that institution in 1978. [Id. at 2-3]. He worked at Mount
Sinai directly with Dr. Irving Selikoff, who is regarded as the foremost expert
in the world on the health effects of asbestos. [Id.]. Dr. Holstein has

conducted original research on the health effects of asbestos and served as
a consultant to numerous corporations, cities/counties/states, and federal
agencies on environmental health. [Id.]. He regularly assesses the amount

of exposure a person or population has received to a toxic substance and
the likely health effects thereof. [Id.].
In his report, Dr. Holstein opines that Mr. Settlemyer’s exposure to
asbestos in connection with his work with each of the named Defendants’

products “each individually constituted a substantial factor in the causation
of his malignant mesothelioma.” [Holstein Report at 10]. He further opines
that Mr. Settlemyer’s “cumulative exposures to asbestos while employed at

6
Davis Oil Company were the direct and sole cause of his bilateral calcified
pleural plaques and his malignant mesothelioma.” [Id.].

In formulating these causation opinions, Dr. Holstein did not calculate
the dose of exposure that Mr. Settlemyer received from any of the
Defendants’ products. Therefore, he could not opine as to the fiber-years5

of cumulative asbestos exposure that Mr. Settlemyer had or to the extent
such exposure would have been attributable to any of the Defendants. Dr.
Holstein admitted in his deposition that he was qualified to make such
calculations, but that he did not think they were necessary to do in this case.

[Holstein Dep. at 58-59, 74]. When pressed further by Abex’s counsel at his
deposition, Dr. Holstein explained as follows:
Q All right. Are you – so you haven’t made an attempt
to try to make a determination, for example, if Mr.
Settlemyer was exposed to a fiber – a total fiber year
cumulatively of exposure to an Abex product in the
course of his career, have you?
* * *
A I have not tried to develop such a number, but it’s
very obvious to me based on extensive previous
experience that the result would be in the range
that by any reasonable definition would
constitute a substantial factor in causation of his
mesothelioma.

5 A “fiber-year” is a unit of measurement used by epidemiologists to express a person’s
cumulative dose of exposure to asbestos over time. See Yates v. Ford Motor Co., 113
F. Supp. 3d 841, 855 n.9 (E.D.N.C. 2015).
7
Q (By Mr. Nadolink) Okay. But you haven’t assigned a
number to it, whether it be 10 fiber years or a fiber
year or a tenth of a fiber year, or anything like that;
right?

A That’s correct. And the reason is that, first of all, it is
not generally how causation is determined in the
medical literature. And, secondly, it’s not required by
North Carolina’s guidance on how to determine
whether exposures are substantial factors in
causation or not.

So for both those reasons, and also because the
exposure was so obviously – so obviously
qualifies as a substantial factor based on me
having made so many calculations of that sort
over the years, I didn’t have to do the calculation.
I knew that it would lead to the same conclusion.

[Holstein Dep. at 59-60].
By failing to calculate the particular dose exposures attributable to
each Defendant, however, Dr. Holstein’s causation opinions are merely
speculation, based upon Dr. Holstein’s assumptions regarding the data
generated by other experts and his years of expertise. While experts
certainly are free to extrapolate from other experts’ data, “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered.” General Elec. Co. v.
8
Joiner, 522 U.S. 136, 146 (1997). The Court finds that such an “analytical
gap” is present here. Dr. Holstein simply does not offer a sufficient

explanation to connect the data which he reviewed with his ultimate
conclusions. Instead, he asserts that his findings are “obvious” and that the
Court should accept his conclusions based upon his years of expertise in the

relevant field. Under Daubert, this is clearly insufficient.
Further, while Dr. Holstein purports to offer his causation opinions to a
“reasonable degree of scientific certainty,” it does not appear that Dr.
Holstein’s opinions are based upon any sound medical or scientific

methodology. Dr. Holstein states at the outset of his report that he was asked
“to develop opinions on whether or not the asbestos exposures experienced
by Mr. Settlemyer in connection with each of the currently named defendants

constituted a substantial contributing factor in the causation of his malignant
mesothelioma.” [Holstein Report at 1]. However, at his deposition, he
admitted that whether a particular exposure constates a “substantial
contributing factor” is not a concept that is recognized in his field. [See

Holstein Dep. at 70 (“[Y]ou will not find any place in which medical authorities
have tried to define what constitutes a substantial factor in causation of a
malignant mesothelioma . . . . It’s not an area in which my profession of

9
medicine and my specialty of medicine has felt any need or usefulness in
trying to define….”)].

Dr. Holstein states that he developed his specific causation opinions
based on “[his] understanding that the applicable law in this case requires
that the Plaintiff demonstrate that the exposures to asbestos experienced by

Mr. Settlemyer in connection with any specific defendant are ‘more than de
minimis,’ and that the exposures should be characterized by regularity,
frequency and proximity to Mr. Settlemyer.” [Holstein Report at 1-2, 10].
This is nothing more than a restatement of the legal causation standard first

articulated by the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp.,
782 F.2d 1156, 1162-63 (4th Cir. 1986) (“To support a reasonable inference
of substantial causation from circumstantial evidence, there must be

evidence of exposure to a specific product on a regular basis over some
extended period of time in proximity to where the plaintiff actually worked.”)
(emphasis added). The Lohrmann standard is a legal standard designed to
guide the trier of fact in evaluating the circumstantial evidence presented and

determining whether a plaintiff has met his or her burden of demonstrating
substantial causation in an asbestos exposure case. See Finch v. Covil
Corp., 972 F.3d 507, 513-14 (4th Cir. 2020). Each of the components of the

Lohrmann standard are inherently fact-specific: was the plaintiff exposed to
10
a specific product? did that exposure occur on a regular basis? did this
exposure occur over an extended period of time? did this exposure occur in

proximity to where the plaintiff actually worked? Significantly, there is
nothing about any of these components that requires the assistance of an
expert to understand. A jury could readily assess the evidence regarding a

plaintiff’s work history and determine for themselves whether the plaintiff’s
exposure to a specific asbestos-containing product was characterized by the
regularity, frequency and proximity required by Lohrmann to establish
substantial causation. Expert testimony should be admissible only if it could

“help the trier of fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702(a). The Court fails to see how Dr. Holstein’s
causation opinions would be in any way helpful to the jury in making this

determination.
The Plaintiffs have failed to establish that Dr. Holstein’s causation
opinions are the result of a sound scientific methodology that was reliably
applied to the facts of the case. Dr. Holstein freely admitted that he made

no effort to quantify Mr. Settlemyer’s cumulative exposure or exposure to any
particular asbestos-containing product, instead concluding that it was
“obvious” in light of his review of the relevant materials and his experience

that, regardless of what the particular calculation of exposure would be, it
11
was sufficiently substantial. [Holstein Dep. at 59-60]. Dr. Holstein then
applied a legal, rather than medical or scientific, standard to determine

whether Mr. Settlemyer’s exposure to each of the Defendant’s products
constituted a substantial factor in the causation of his mesothelioma. Dr.
Holstein’s “methodology” in this regard cannot be tested; it has no known

error rate; and it has not been published or subjected to the scrutiny of peer
review. As such, the Court concludes that Dr. Holstein’s causation opinions
are not reliable, nor would they be helpful to the jury in determining the issue
of causation. Accordingly, the Court will grant the Defendants’ motions to

exclude the specific causation opinion testimony of Dr. Holstein.
B. DTNA’s Motion to Exclude “Cumulative Exposure” Opinion
of Dr. Brent Staggs

Brent C. Staggs, M.D., is a board-certified physician in Anatomic
Pathology, Clinical Pathology and Hematopathology. [Doc. 206-6: Staggs
Supp. Report at 2]. He is licensed to practice medicine in five states, and as
a part of his practice, he regularly reviews and examines tissue samples,
including tumor and lung biopsies. [Id. at 1-2]. He has reviewed hundreds of
cases of asbestosis, asbestos related pleural disease, lung carcinomas and

mesotheliomas, both in clinical practice and in the setting of medical legal
consultation. [Id.].
12
In his original report dated October 14, 2020, Dr. Staggs sets forth the
general principles of asbestos-related disease; discusses the studies and

reports identifying a causal relationship between asbestos-containing
products and diseases such as asbestosis, lung cancer, and mesothelioma;
and summarizes his review of the case materials, including Mr. Settlemyer’s

medical records and deposition testimony. [Doc. 206-7: Staggs Original
Report at 2-15]. He then lists in a section entitled “Asbestos Product and
Defendant Information” the asbestos-containing products and the
defendants to which such products are attributable. [Id. at 15-17]. Dr.

Staggs then offers opinions on both general causation and defendant-
specific causation. [Staggs Oct. 14, 2020 Report (“Original Report”) at 15-
18]. With respect to general causation, Dr. Staggs opines that “Mr.

Settlemyer has malignant mesothelioma of the pleura, as well as pleural
plaques” and that “[t]he development of Mr. Settlemyer’s mesothelioma and
pleural plaques was caused by his lengthy history of asbestos exposure.”
[Id. at 17-18]. With respect to specific causation, Dr. Staggs opines in his

initial report as follows:
[A]s to specific causation, Mr. Settlemyer had
significant and identified exposures to asbestos from
his frequent and regular work in proximity to asbestos
containing automotive, truck, and trailer products,
including brakes, clutches and gaskets over his
13
working lifetime. It is my opinion to a reasonable
degree of medical certainty that the above named
and identified products in the Asbestos Product
and Defendant Information section were each
substantial factors causing Mr. Settlemyer’s
malignant mesothelioma and pleural plaques.

[Id. at 18] (emphasis added).
In a supplemental report issued approximately 4½ months later, Dr.
Staggs restates the sections of his original report, including the general
principles of asbestos-related disease; the studies and reports identifying a
causal relationship between asbestos-containing products and diseases
such as asbestosis, lung cancer, and mesothelioma; and the summary of his
review of the case materials, including Mr. Settlemyer’s medical records and
deposition testimony. [Doc. 206-7: Staggs Supp. Report at 2-17]. Dr.
Staggs, however, omits in his supplemental report the section entitled
“Asbestos Product and Defendant Information” and omits his specific
causation opinion that each of the identified Defendants’ products were a

substantial factor in causing Mr. Settlemyer’s malignant mesothelioma and
pleural plaques.
It appears that Dr. Staggs has withdrawn his specific causation opinion

by failing to include it in his supplemental report. As such, DTNA’s motion to
exclude his specific causation opinion is moot. To the extent that Dr. Staggs
14
has not withdrawn this opinion, the Court concludes that such opinion should
be excluded for the same reasons identified supra for excluding the specific

causation opinions of Dr. Holstein: namely, that no analysis is offered to
identify the particular dose attributable to any particular defendant and
because the proffer of an opinion regarding “substantial factor” causation

would be tantamount to a legal conclusion and thus would not be helpful to
the jury. Accordingly, DTNA’s motion to exclude the specific causation
testimony of Dr. Staggs is granted.
C. Plaintiffs’ Motion to Exclude Defendants’ Expert Testimony

The Plaintiffs move to exclude “speculative, irrelevant and/or
cumulative expert testimony” offered by a number of the Defendants’ expert
witnesses. [Doc. 178].

First, the Plaintiffs seek to exclude the opinions of Tim D. Oury, M.D.,
James D. Crapo, M.D., and Gail D. Stockman, M.D., Ph.D., that Mr.
Settlemyer’s exposures to amphibole6 forms of asbestos caused his

6 The Eastern District of North Carolina has helpfully described the different types of
asbestos as follows:

“Asbestos” is a generic term used to describe certain naturally-occurring
minerals. There are different forms of asbestos, including chrysotile,
crocidolite, cummingtonite-grunerite (also known as amosite), actinolite,
anthophyllite, and tremolite asbestos. “Amphibole” asbestos includes
15
mesothelioma. The Plaintiffs also seek to exclude the opinions of industrial
hygienists Sheldon H. Rabinovitz, Ph.D., and Mary A. Finn, Ph.D., who

opined Mr. Settlemyer was at an increased risk of developing mesothelioma
from his exposure to amphibole asbestos. The Plaintiffs argue that these
opinions are “based on unsupported speculation and lacking a reliable

foundation,” as there is no evidence in the record that Mr. Settlemyer was
exposed to amphibole asbestos.7 [Doc. 178 at 3-4, 6-7].
As several of these experts noted, Mr. Settlemyer has bilateral pleural
plaques, a condition which these experts opine is indicative of exposure to

amphibole asbestos. [See Doc. 229-14: Stockman Dep. at 26-27; Doc. 229-
8: Oury Dep. at 27; Doc. 233-6: Crapo Report at 2]. This conclusion is
supported by peer-reviewed literature relied upon by both the Plaintiffs’ and

Defendants’ experts. [See Doc. 233 at 13-18 (listing studies)]. Although Mr.

amosite, crocidolite and tremolite. “Amphiboles” are classified in a
mineralogical family separate from chrysotile asbestos.

Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 853 (E.D.N.C. 2015) (citations omitted).
It is generally recognized that chrysotile asbestos is less potent than amphibole. See
Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 606 (N.D. Ohio 2004) (“The prevailing
scientific and medical view is that amphibole asbestos fibers have significantly greater
propensity to cause disease than chrysotile asbestos.”).

7 The Plaintiffs do not challenge the qualifications of any of the Defendants’ expert
witnesses.

16
Settlemyer may claim that he has never had any exposure to amphibole
asbestos, the existence of pleural plaques in both lungs indicates exposure

to a more virulent form of asbestos, according to the Defendants’ experts.
While the Plaintiffs may disagree with these experts’ conclusions, the
experts’ reasoning and basis for these opinions appear to be reliable and the

result of sound methodology. Although most of these experts could not point
to any specific amphibole exposure that Mr. Settlemyer had experienced,8
their opinions are nevertheless relevant and reliable. The Plaintiff’s motion
to exclude these experts’ opinions as unduly speculative, therefore, is

denied.
Next, the Plaintiffs seek to exclude the opinions of Dominik D.
Alexander, Ph.D, and May Finn, Ph.D., related to the alternative causes or

8 While some of the Defendants’ experts did not identify any specific amphibole exposure,
at least one of Pneumo Abex’s experts, Mary Finn, Ph.D., noted that there was some
indication in Mr. Settlemyer’s medical records that such an amphibole exposure may have
occurred. [Doc. 232-4: Finn Report at 52]. Additionally, the Court notes that Mr.
Settlemyer reported to a doctor at Iredell Memorial Hospital in December 2018 that “he
had worked in a[n] asbestos exposed factory in the 70s for an extended period of time.”
[Doc. 230-2: Medical Records at 1]. In addition, Mr. Settlemyer’s father and brothers
worked at a brickyard, and the family home was right beside it. [Settlemyer Dep. Vol. 1
at 10-11, 21]. He also worked at a Beaunit plant in 1979 for about a month. [Id. at 68].
Further, Mr. Settlemyer worked at Clean Air Products from 1994 to 1997 tearing out and
installing air filtration systems. [Settlemyer Trial Dep. at 26-27].

17
risk factors of mesothelioma as irrelevant and/or unduly prejudicial and thus
excludable under Federal Rule of Evidence 403.9 [Doc. 178 at 9-10].

Contrary to the Plaintiffs’ arguments, the association between
exposure to amphibole asbestos and mesothelioma is highly relevant to this
case. As Dr. Alexander explained in his report:

Historically, commercial serpentine asbestos
(chrysotile) and amphibole asbestos (amosite,
crocidolite) has been used in up to 3,000
manufacturing processes and products (Williams,
Phelka, and Paustenbach 2007). Accordingly, risk of
mesothelioma among workers in asbestos exposed
occupations, including individuals handling,
disturbing, or manipulating asbestos containing
products, has been analyzed in hundreds of
analytical epidemiologic studies. The epidemiologic
evidence clearly shows that exposure to
amphibole asbestos fibers, namely commercial
amosite and crocidolite, are associated causally
with pleural and peritoneal mesothelioma.
(Pavlisko and Sporn 2014, Sporn and Roggli 2004,
Browne 1994, Craighead 2008, IARC 2012, Ribak
and Ribak 2008, Berman and Crump 2008b, a,
Churg 1998, Finkelstein 1989, Gibbs and Berry 2008,
Levin et al. 1998, Ribak, Seidman, and Selikoff 1989,
Selikoff, Hammond, and Churg 1972, Seidman,
Selikoff, and Hammond 1979, Seidman, Selikoff, and

9 The Plaintiffs also seek to exclude the opinions of industrial hygienist Jennifer Sahmel’s
opinions regarding the utilities of asbestos as irrelevant and unduly prejudicial. [Doc. 178
at 9]. Although the Plaintiffs assert that both Morse Tec, LLC and BWDAC retained Ms.
Sahmel, BWDAC denies ever retaining her. [See Doc. 231 at 1-2]. Thus, Morse Tec,
LLC is the only Defendant to have retained Ms. Sahmel. Morse Tec, LLC, however, did
not respond to the Plaintiffs’ motion and therefore does not appear to contest the
exclusion of Ms. Sahmel’s testimony. Accordingly, the Plaintiff’s motion to exclude Ms.
Sahmel’s testimony regarding the utilities of asbestos is granted.
18
Gelb 1986, Hodgson and Darnton 2000, Sluis-
Cremer et al. 1992, Hughes, Weill, and Hammad
1987, Levin et al. 2016, Roggli et al. 2002a, Oury,
Sporn, and Roggli 2014, Acheson et al. 1982,
Armstrong et al. 1984, Armstrong et al. 1988, Berry
et al. 2012, Botha, Irwig, and Strebel 1986, De Klerk
et al. 1989, De Klerk et al. 1994, Gaensler and Goff
1990, Hansen et al. 1993b, Hansen et al. 1998a, Hilt,
Rosenberg, and Langard 1981, Hobbs et al. 1980,
Jones et al. 1980, Kielkowski, Nelson, and Rees
2000, McDonald and McDonald 1978, McDonald,
Harris, and Berry 2006, Musk et al. 2008, Reid et al.
2007, Reid, Heyworth, de, et al. 2008, Reid et al.
2009, Reid, Heyworth, De Klerk, et al. 2008, Reid et
al. 2013, Rees et al. 1999, Talcott et al. 1989, Wignall
and Fox 1982, Schneider, Sporn, and Roggli 2008,
White, Nelson, and Murray 2008, Wagner, Sleggs,
and Marchand 1960, Certainteed 2009, Galateau-
Salle 2013, J. M. Manufacturing 2012, Noble,
Kawahara, and Cooper 1977, Ferrante et al. 2007,
Ferrante et al. 2017, Magnani et al. 2008,
Menegozzo et al. 2011, Oddone et al. 2014, Oddone
et al. 2017).

[Doc. 231-10: Alexander Report at 15]. The Plaintiffs’ own expert, Dr.
Staggs, confirms in his report that there is a causal connection between
amphibole exposure and malignant mesothelioma. [See Doc. 206-7: Staggs
Report at 17]. Accordingly, the Court concludes that the opinions of Dr.
Alexander and Dr. Finn regarding amphibole asbestos and mesothelioma
are relevant to the cause of Mr. Settlemyer’s disease and are therefore
admissible. The Plaintiffs’ motion to exclude this opinion evidence is denied.
19
Finally, the Plaintiffs ask the Court to “limit cumulative testimony
offered by Defendants’ experts.” [Doc. 178 at 10-11]. The Plaintiffs’ request

is premature. This is a multi-defendant action, and each Defendant has
prepared its own individual case, in anticipation of the possibility that the
Plaintiffs may settle with all the other Defendants, leaving only that one

Defendant left for trial. As such, the Defendants concede that there some of
their experts’ testimony might become cumulative. [See, e.g., Doc. 231 at
20; Doc. 233 at 24]. Any decisions regarding whether to limit the Defendants’
expert testimony will have to be made at the time of trial, when the Court and

the parties have a better sense of which Defendants remain in the case and
which witnesses will be called. Accordingly, the Plaintiffs’ request to exclude
any “cumulative” opinions by the Defendants’ experts is denied without

prejudice to renewal at the time of trial.
O R D E R
IT IS, THEREFORE, ORDERED that:
(1) The Defendants’ Daubert Motions to Exclude the Testimony of

the Plaintiffs’ Expert Edwin Holstein [Docs. 171, 179, 180, 184,
188, 196] are GRANTED;

20
(2) The Defendant Daimler Trucks North America LLC’s Daubert
Motion to Exclude the Cumulative Exposure Opinion as
Evidence of Specific Causation [Doc. 205] is GRANTED;
(3) The Plaintiffs’ Daubert Motion to Exclude Speculative, Irrelevant
and/or Cumulative Expert Testimony [Doc. 178] is GRANTED IN
PART and DENIED IN PART as set forth in this Order; and
(4) The Plaintiffs’ Daubert Motion to Exclude the Causation Opinions
of Defendants’ Expert Witnesses [Doc. 202] is DENIED AS
MOOT.
IT IS SO ORDERED.

Signed: December 6, 2021
Se ee
Chief United States District Judge AS

21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10257944. Public record. Not legal advice.