United States District Court, D. Maryland
Catherine C. Blake United States District Judge
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
a case brought by John Dugger, Jr., individually and as
personal representative of the estate of John Dugger, as well
as John Dugger's 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.
Dr. Arthur L. Frank
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
121-129The 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.
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.
Dr. John C. Maddox
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.
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.
Dr. Murray Finkelstein
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.