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Dugger v. Union Carbide Corp.

United States District Court, D. Maryland

September 30, 2019

JOHN DUGGER, JR., et al.,


          Catherine C. Blake United States District Judge

         Before the court is defendant Honeywell International Inc.'s ("Honeywell") Daubert motion to preclude evidence suggesting that chrysotile asbestos used in brakes causes pleural mesothelioma or that every exposure counts (ECF 891). The motion has been fully briefed and no oral argument is necessary. For the reasons set forth below, the court will grant in part and deny in part Honeywell's motion.


         This is a case brought by John Dugger, Jr., individually and as personal representative of the estate of John Dugger, as well as John Dugger's[1] spouse and surviving children (the "plaintiffs") against Honeywell, successor-in-interest to Bendix corporation, claiming that Mr. Dugger developed mesothelioma as a result of his exposure to asbestos in Bendix brakes. Honeywell challenges the expert testimony of the plaintiffs' expert witnesses, Dr. Arthur Frank, Dr. John Maddox, and Dr. Murray Finkelstein, arguing that they are not admissible under Rule 702 of the Federal Rules of Evidence.

         A. Dr. Arthur L. Frank

         Dr. Arthur Frank is a physician, board certified in both internal medicine and occupational medicine, who has published approximately 100 publications regarding the subject of asbestos. Dr. Frank's Nov. 20, 2017 Supplement Report at 1, ECF 922-8'at 124. Dr. Frank submitted four reports in this case, dated August 30, November 20, and December 7, 2017, and February 27, 2018. ECF 922-8, at 121-129[2]The plaintiffs have also submitted Dr. Frank's December 20, 2016 affidavit, referenced in his reports, as well as a December 10, 2013 affidavit. Dr. Frank's 2016 Affidavit, ECF 922-4 at 88-303; Dr. Frank's 2013 Affidavit, ECF 922-9 at 43-325. Additionally, Dr. Frank submitted a verification, dated September 17, 2018, in response to Honeywell's motion to preclude his testimony. Dr. Frank's Sept. 17, 2018 Verification, ECF 922-3 at 38-59.

         To complete his reports, Dr. Frank reviewed Mr. Dugger's "death certificate, pathology reports, radiology records, oncology reports, discharge and admission notes, pulmonary function tests, and a work history." Aug. 30 Report at 1, ECF 922-8 at 124. He concludes that Mr. Dugger's exposure from working with asbestos-containing brakes "would have been at levels above background, would have been medically significant, and would have been medically causative of the mesothelioma which caused his death." Id. at 2. In his verification, Dr. Frank states "[i]n determining the relative contribution of any exposures to asbestos above background levels, it is important to consider a number of factors" such as the level and duration of exposure, proximity to the exposure, and the nature of the product. Sept. 17, 2018 Verification at 21-22. According to Dr. Frank, he "considered all of these factors in reaching [his] opinions . .. that Mr. Dugger's work with automobile brakes manufactured by Bendix was a medically significant cause of his cancer." Id. at 22.

         B. Dr. John C. Maddox

         Dr. John Maddox is a physician in the private practice of pathology at Riverside Regional Medical Center in Newport News, Virginia, and has been a practicing pathologist for over 41 years. Dr. Maddox's Dec. 14, 2017 Report at 6, ECF 922-8 at 46. Dr. Maddox completed a December 14, 2017 report in this case, as well as surgical pathology reports dated June 7, 2017, and March 2 and August 3, 2018.. ECF 922-8 at 41-117.

         Dr. Maddox believes that Mr. Dugger's exposure to Bendix brakes combined with his exposure to asbestos while in the Navy was sufficient to cause his mesothelioma because the exposure was "high, prolonged, and repetitive" and studies have shown that even low exposures to asbestos can cause mesothelioma. Dr. Maddox's Dec. 14, 2017 Report at 56. Dr. Maddox relies on, e.g., the International Agency for Research on Cancer (IARC) study published in 2012, protocols outlined by Sir Austin Bradford Hill, and the Helsinki Criteria, which was developed by 19 experts as a method for attribution of asbestos related disease. Id. at 25-27. In summary, his personal methodology asks: 1) whether the asbestos exposures are real, 2) whether they are significantly above normal background ambient air, 3) how they are known, 4) whether they are repetitive, 5) the risk or rate of mesothelioma, using a dose-response function, and 6) whether the exposures are within the reasonable latency period. Id. at 27-28.

         C. Dr. Murray Finkelstein

         Dr. Murray Finkelstein is a physician-epidemiologist and a former medical consultant with the Ontario Ministry of Labour. He is now retired. Finkelstein Decl. at 1, ECF 922-10 at 35. Dr. Finkelstein provides one declaration where he discusses studies on brake repair, asbestos, and mesothelioma. Id. at 4-11. He also makes an assessment of Mr. Dugger's risk exposure. Id. at 11-12. Counsel stated at Dr. Finkelstein's deposition, however, that he would be offering no plaintiff-specific causation opinions in this case. ECF 891-4 at 4.

         STANDARD ...

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