UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: ASBESTOS PRODUCTS §LIABILITY LITIGATION (NO. VI) § Civil Action No. 2:09-cv-80103-ER

This Document Relates To:

IN THE UNITED STATES DISTRIC COURTCENTRAL DISTRICT OF UTAH

GLENYS ANDERSON, Individually §And as Personal Representative of the Estate of, §JERRY D. ANDERSON, Deceased §

§Plaintiffs, §

v. § C.A. No. 09-cv-80103§

GEORGIA PACIFIC, et al., §§

Defendants §

PLAINTIFFS’ MOTION IN OPPOSITION TO DEFENDANT GEORGIA PACIFIC LLC’S MOTION TO EXCLUDE, OR IN THE ALTERNATIVE TO LIMIT, THE

TESTIMONY OF ARNOLD BRODY, PH.D.

Glenys Anderson, Individually and as Personal Representative of the Estate of Jerry D.

Anderson, deceased, by and through their undersigned counsel, hereby submit this opposition to

Georgia Pacific LLC’s Motion to Exclude, or in the Alternative to Limit, the Testimony of

Arnold Brody, PhD. For the following reasons, Plaintiff respectfully requests this Court deny

said motion in its entirety.

I. INTRODUCTION

Dr. Arnold Brody is a cellular biologist who specializes in the biological mechanisms of

asbestos disease. Dr. Brody is currently a professor in the Department of Molecular Biomedical

Sciences at North Carolina State University in Raleigh, North Carolina. See Curriculum Vitae of

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Dr. Arnold Brody (Exhibit 1). Prior to accepting this position in 2006, Dr. Brody served as the

Vice-Chairman of the Department of Pathology at the Tulane University Medical Center and as a

full professor at Tulane University Medical Center’s Molecular and Cellular Biology Program,

where he routinely taught medical students and physicians about asbestos and the diseases it

causes. Dr. Brody has served on numerous editorial boards, including the editorial boards for the

American Journal of Pathology and the Journal of Environmental Pathology, Toxicology and

Oncology, and has authored more than 150 publications that have been subjected to peer review,

including book chapters and publications for materials ranging from “Toxicology of the Lung,”

to “Asbestos-Related Cancer,” to “Pathology of Asbestos-Associated Diseases,” including many

articles involving chrysotile asbestos.

Moreover, as courts have recognized, Dr. Brody has “researched the link between

asbestos and lung disease for more than fifteen years.” Pittsburgh Corning Corp. v. Walters, 1

S.W.3d 759, 773 (Tex. App. 1999) (pet. denied). Dr. Brody is an accomplished National

Institutes of Health grant recipient for asbestos research over the last thirty years where he has

explored the mechanisms by which chrysotile asbestos causes disease. He has been recognized

as an expert and permitted to testify to the matters set forth in his report in state and federal

courts around the country including this Court.

In fact, as recently as a few weeks ago, this Court permitted Dr. Brody to testify about the

causal relationship between chrysotile asbestos and the development of mesothelioma as well as

his opinion that all exposures to asbestos in excess of background levels contribute to cause

mesothelioma, the very testimony which Defendant Georgia Pacific claims is unreliable and not

based upon accepted methodology. See In re Asbestos Products Liability Litigation (No. VI),

Larson v. Bondex International, 2010 WL 4676563 (E.D. Pa. Nov. 15, 2010) at fn 3. Although

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recognizing that there was a bona fide debate in the medical community regarding the

significance of every exposure to asbestos in the development of mesothelioma, the Court

nevertheless determined that Dr. Brody’s opinions in that regard satisfied Daubert requirements

and allowed the jury to hear his testimony. Id.

As this Court is aware, Plaintiff does not offer Dr. Brody’s testimony to

establish what specifically caused Mr. Anderson’s cancer but rather to

generally inform and educate the jury about how asbestos, in all of its forms,

causes cancer. As Dr. Brody’s expert report clearly documents, Plaintiffs

intend for Dr. Brody to testify about the physiological design and function of

the lungs, how asbestos fibers migrate throughout the body and are

deposited in the lungs, the different types of asbestos fibers, and how all

exposures to asbestos, regardless of fiber type, contribute to cause an

individual’s disease. See Report of Dr. Arnold Brody (Exhibit 2).

It is beyond dispute that the jury’s ability to understand the complex science involved in

this case is critical to all parties involved. Moreover, Dr. Brody’s general testimony regarding

the fact that all types of asbestos have been proven to cause mesothelioma, and his testimony

regarding the mechanism by which asbestos causes diseases, including mesothelioma, is

absolutely relevant to one of the critical issues in this case, namely, can chrysotile asbestos, the

type of asbestos incorporated in the Georgia Pacific joint compound, cause mesothelioma. Dr.

Brody’s testimony is relevant, and will assist the jury with understanding the complex causation

issues involved in this case.

Judge M. Faith Angell recently denied defendants’ motion to exclude the expert

testimony of Dr. Brody in the case of Larson v. Bondex International, Inc. E.D. PA. Civil No.

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09-69123, a motion involving the very same arguments presented by Georgia Pacific in this case.

See Order from Magistrate Judge M. Faith Angell, dated May 24, 2010. In so doing, Judge

Angell held as follows:

I have little trouble concluding that Dr. Brody’s methodology is reliable and meets the flexible Daubert criteria for admissibility. His opinions are supported by citations to various peer-reviewed articles, rest upon “good grounds,” and are not simply “personal subjective opinions.” See Heller v. Shaw Industries, 167 F.3d 146, 152-53 (3d Cir. 1999)

Order of Judge Angell at 7-8 (Exhibit 3). This Court affirmed her decision by holding that:

Given the purpose of Dr. Brody’s testimony, to assist the jury in understanding the relationship between exposure to asbestos fibers and disease processes generally, and the breadth of peer-reviewed publications relied on, this Court will not disturb Judge Angell’s finding that Plaintiff has met the reliability requirement of Rule 702 and Daubert.

See In re Asbestos Products Liability Litigation (No. VI), Larson v. Bondex International, 2010

WL 4676563 (E.D. Pa. Nov. 15, 2010) at 3.

The very purpose of Multi-District Litigation is to conserve resources and foster

consistent court rulings across different lawsuits that involve similar legal issues. Dr. Brody

offers expert testimony regarding disease mechanisms and causation that apply to all asbestos

cases and are not plaintiff specific. The very fact that this court has previously taken the time

and energy to review the admissibility of his testimony through briefing and a hearing, should be

sufficient to deny Georgia Pacific’s Motion to Strike in this case. Georgia Pacific simply does

not offer any novel reason why such testimony should be excluded.

II. LEGAL STANDARDS

Rule 702 provides that a witness qualified as an expert may testify if “scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue.” In reliance on this language “and the liberal thrust of the Federal

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Rules of Evidence, the Supreme Court held in Daubert that expert testimony need be based only

on a reliable and scientifically valid methodology that fits with the facts of a case.” Heller v.

Shaw Indus., Inc., 167 F.3d 146, 152 (3d Cir. 1999) (citing Daubert v. Merrell Dow Pharm., 509

U.S. 579, 592-93 (1993)). To this end, the Supreme Court “listed four factors to guide a district

court in its preliminary assessment of these requirements,1 but cautioned that these were

guideposts and not required factors in each case . . . The Court made clear that its listing of these

factors should not obscure the fact that the district court’s gatekeeper role is a flexible one, and

that the factors are simply useful signposts, not dispositive hurdles that a party must overcome in

order to have expert testimony admitted.” Id. (citing Daubert, 509 U.S. at 593-94 & n.12).

Indeed, contrary to Defendants’ attempts to characterize the district court’s role under

Daubert as exacting and inflexible, it is well established that a district court’s gatekeeper role “is

not intended to replace the adversary system.” Colon ex rel. Molina v. BIC USA, Inc., 199 F.

Supp. 2d 53, 75 (S.D.N.Y. 2001); accord Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001).

Rather, as the Court specifically recognized in Daubert, “cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof” are the ordinary means to

attack an opposing expert. Daubert, 509 U.S. at 596. An expert’s testimony can be excluded

altogether only if it “amount[s] to the sort of ‘junk science’ Daubert blocks.” Skidmore v.

Precision Printing & Packaging, Inc., 188 F.3d 606, 618 (5th Cir. 1999); see also In re

Linerboard Antitrust Litig., 203 F.R.D. 197, 217 & n.13 (E.D. Pa. 2001). The Third Circuit has

explained that even if the judge believes “there are better grounds for some alternative

conclusion,” and that there are some flaws in the scientist’s methods, if there are “good grounds”

1 The factors are: (1) whether the methodology can and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error of the methodology; and (4) whether the technique has been generally accepted in the proper scientific community. See Daubert, 509 U.S. at 593-94.

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for the expert’s conclusion, it should be admitted. In re Paoli R.R. Yard PCB Litig., 35 F.3d at

744 n.8. It is thus not surprising that a review of the case law after Daubert shows that “the

rejection of expert testimony is the exception rather than the rule.” Melini v. 71st Lexington

Corp., No. 07 Civ. 701, 2009 U.S. Dist. LEXIS 16666, at *12-13 (S.D.N.Y. Feb. 13, 2009)

(quoting Fed. R. Civ. P. 702 advisory committee’s note).

III. ARGUMENT

A. Experts Need Not Rely on Epidemiological Studies

It is widely accepted in the scientific community that asbestos in all its

forms causes mesothelioma. Recently, the highly esteemed and

authoritative International Agency for Research on Cancer (IARC) completed

what is arguably the most comprehensive review of asbestos literature in

world history, and reconfirmed their long held position that that all types of

asbestos, including chrysotile and the amphiboles, causes all forms of

asbestos related disease, including mesothelioma.2 Cases of mesothelioma

have been uncovered in almost all populations of asbestos exposed workers

studied including those exposed only to chrysotile asbestos. For those few

negative studies, the long latency between asbestos exposure and diagnosis

as well as the rarity and difficulty of diagnosing mesothelioma tempers any

2 See A Review of Human Carcinogens – Part C: Metals, Arsenic, Dust, and Fibres, The Lancet, 10:453 (2009) (Exhibit 4). Accord Asbestos, asbestosis, and cancer: the Helsinki criteria for diagnosis and attribution, Scand J Work Environ Health. (1997) 23:311-316 at 313; Lemen, Chrysotile Asbestos as a Cause of Mesothelioma: Application of the Hill Causation Model, Int. J. Occup. Environ. Health, 10:233 (2004)(discussing several of the major published and peer reviewed epidemiology studies that support the conclusion that chrysotile alone causes mesothelioma); Welch, et al., Asbestos Exposure Causes Mesothelioma, But Not This Asbestos Exposure: An Amicus Brief to the Michigan Supreme Court, Int J Occup Environ Health 2007; 13:318-327 (2007); Stayner et al , Occupational exposure to chrysotile asbestos and cancer risk: a review of the amphibole hypothesis. Am J. Public Health 1996.

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strong interpretations of that data. Numerous other scientific groups agree

with the IARC that the existing epidemiology demonstrates that all forms of

asbestos cause all forms of asbestos related disease in a dose-dependent

manner and that there is no safe level or threshold of acceptable exposure to

any type of asbestos fiber below which mesothelioma will not occur.3

It is important to note at this junction that Georgia Pacific does not, and frankly cannot,

offer any objections to Dr. Brody’s qualifications. Instead, Georgia Pacific contends that Dr.

Brody used unreliable methodologies to reach his opinion that chrysotile asbestos can cause

mesothelioma because he ignored the available epidemiology and does not cite to any

epidemiological studies that support his specific conclusions regarding chrysotile. The Third

Circuit has clearly established, however, that an expert is not required to rely on “published

studies specifically linking [the plaintiff’s] illness with [the defendant’s] product” in order for the

expert’s opinion regarding causation to be admissible. Heller, 167 F.3d at 149 (finding district

court abused its discretion by excluding expert testimony that was based on a reliable

methodology simply because “no epidemiological or animal studies” linked defendant’s product

to plaintiff’s disease); see also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (approving

causation opinion based on differential diagnosis).

In Heller, the Third Circuit overturned the district court’s decision to exclude an expert’s

causation opinion because he cited no research to support his opinion that the toxins to which the

plaintiff was exposed caused the type of illness allegedly experienced by the plaintiff. Heller,

3 The United States Environmental Protection Agency (“EPA”), Airborne Asbestos Health Assessment Update, June 1986, at 93, 95, 173-74; the United States Dept. of Labor Occupational Safety and Health Agency (“OSHA”); National Institute of Occupational Safety and Health (“NIOSH”); Agency for Toxic Substances and Disease Registry (“ATSDR”); the World Health Organization, 2006 at 2 (“no threshold has been identified for the carcinogenic risk of chrysotile.”)(Exhibit 5).

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167 F.3d at 155. The court explained that “[g]iven the liberal thrust of the Federal Rules of

Evidence, the flexible nature of the Daubert inquiry, and the proper roles of the judge and the

jury in evaluating the ultimate credibility of an expert’s opinion, we do not believe that a medical

expert must always cite published studies on general causation in order to reliably conclude that

a particular object caused a particular illness.” Id., citing McCullock v. H.B. Fuller Co., 61 F.3d

1038, 1043 (2d Cir. 1995) (affirming admission of treating doctor’s testimony despite the fact

that he “could not point to a single piece of medical literature that says glue fumes cause throat

polyps”). Further, the Third Circuit specifically cautioned against requiring that an expert cite

published studies, explaining that “[t]o so hold would doom from the outset all cases in which

the state of research on the specific ailment or on the alleged causal agent was in its early stages,

and would effectively resurrect a Frye-like bright-line standard . . . excluding expert testimony

not backed by published (and presumably peer-reviewed) studies.” Heller, 167 F.3d at 155.

Thus, despite Defendants’ assertions to the contrary, it is not necessary to have an

epidemiologic study of a specific type of asbestos exposure or a specific type of worker cohort to

be able to reliably conclude that an individual’s exposure to asbestos is the cause of his or her

mesothelioma. In addition to the Heller and Paoli cases in the Third Circuit, the Federal Judicial

Center Reference Manual on Scientific Evidence, Epidemiology, describes and recognizes the

limitations of epidemiology:

Epidemiology is concerned with the incidence of disease in populations and does not address the question of the cause of an individual’s disease. This question, sometimes referred to as specific causation, is beyond the domain of the science of epidemiology. Epidemiology has its limits at the point where an inference is made that the relationship between an agent and a disease is causal (general causation) and where the magnitude of excess risk attributed to the agent has been determined; that is, epidemiology addresses whether an agent can cause a disease, not whether an agent did cause a specific plaintiff’s disease.

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Reference Manual at 481-82 (Exhibit 6).

As the Supreme Court made clear in Kumho Tire Co. v. Carmichael, 526 U.S. 137

(1999), the ultimate objective of Daubert’s gate-keeping requirement is not to ensure that every

causation opinion expressed by an expert is backed by an epidemiological study, but rather “to

make certain that an expert, whether basing testimony upon 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.” Kumho Tire Co., 526 U.S. at 152.

B. Epidemological Studies have Confirmed that Exposure to Chrysotile, Even at Low Levels, Causes Mesothelioma.

Even though epidemiologic studies are not required, there have been a plethora of

epidemiologic studies that have established exposure to chrysotile asbestos results in an

increased risk of mesothelioma,4 even at extremely low levels. For example, a recent

article examining the incidence of mesothelioma in six Egyptian

neighborhoods surrounding a plant that used chrysotile asbestos found 83

cases representing a "26-fold excess risk of pleural mesothelioma due to

environmental exposure."5 The levels of asbestos in these neighborhoods

was exceedingly small - 17 of the mesothelioma cases occurred in a

4 O’Donnell, et al., Asbestos, an Extrinsic Factor in the Pathogenesis of Bronchogenic Carcinoma and Mesothelioma, Cancer 19:1143-1148 (1966); Enterline, et al., Asbestos and cancer: a cohort followed up to death, Brit J Indus Med 44:396-401 (1987); Dell & Teta, Mortality Among Workers at a Plastics Manufacturing and Research and Development Facility: 1946-1988, Am J Indus Med, 28:373-384 (1995); Yano E, et al., Cancer mortality among workers exposed to amphibole-free chrysotile asbestos, Am J Epidemiol. 15;154(6):538-43 (2001); Li, et al., Cohort studies on cancer mortality among workers exposed only to chrysotile asbestos: a meta-analysis, Biomed Environ Sci 17(4):459-468 (2004); Mirabelli, et al., Excess of Mesothelioma after Exposure to Chrysotile in Balangero, Italy, Occup. Environ. Med. 65(12):815-9 (2008).

5 Madkour, Environmental Exposure to Asbestos and the Exposure-Response Relationship with Mesothelioma, E.Med.Health J. 15:25-38 (2009)(Exhibit 7).

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neighborhood a half a mile away from the plant where airborne asbestos the

dust was measured at 0.04 f/cc and 27 of the mesothelioma cases came

from neighborhoods between 1 and 2.5 kilometers away with a dust

measurement of 0.025 f/cc or less.6 The finding of a significantly increased

risk of mesothelioma from simply living in the vicinity of a source of airborne

chrysotile asbestos fibers is consistent with the opinion that there is no safe

threshold and that even small amounts of chrysotile asbestos can cause the

disease.7

Georgia Pacific attacks Dr. Brody’s methodology by denigrating his reliance on an article

published by Dr. Laura Welch and signed by 51 of her colleagues entitled Asbestos Exposure

Causes Mesothelioma, But Not This Asbestos Exposure: An Amicus Brief to the Michigan

6 Id. at p. 35, Table 9. Accord Pan, Residential Proximity to Naturally Occurring Asbestos and Mesothelioma Risk in California, Am J Respir Care Med 172:1019-1025 (2005)(the data in the study supported the hypothesis that residential proximity to naturally occurring deposits of chrysotile asbestos in California is significantly associated with an increased risk of mesothelioma).

7 Of course, Mr. Anderson’s exposure to joint compounds was not an ambient air exposure. Work with joint compounds was a dusty process that released a tremendous amount of respirable asbestos fibers into the air. Dr. Selikoff and his colleagues at Mt. Sinai School of Medicine took air samples in the breathing zone of drywall tapers and found that during the sanding of joint compounds, asbestos fiber concentrations were comparable to levels measured in the work environment of asbestos insulators. Fischbein et al., Drywall construction and asbestos exposure, AMERICAN INDUSTRIAL HYGIENE ASSOCIATION JOURNAL, 40:402-407 (1979); Verma & Middleton, Occupational exposure to asbestos in the drywall taping process Am Indus Hyg J 41:264-269 (1980). The exposure to asbestos during these processes was so substantial that the Consumer Product Safety Commission estimated that using joint compound for six hours a day, four times a year would increase the risk of death from respiratory cancer to between 10 and 2,000 per million. According to the CPSC, five years of similar exposure would geometrically increase the risk to between 1,000 and 12,000 deaths per million. See 16 C.F.R. Part 134 – Ban of Consumer Patching Compounds Containing Respirable Free-Form Asbestos, Consumer Product Safety Commission § 1304.4. A study of drywall plasterers and cement masons revealed a staggering 20 deaths from pleural mesothelioma in a population of slightly more than 3,000 drywall plasterers. See Stern, Mortality Among Unionized Construction Plasterers and Cement Masons, Am J Indus Med, 39:373-388 (2001).

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Supreme Court, Int J Occup Environ Health 13:318-327 (2007)(Exhibit 8). The scientists,

researchers and medical professionals, however, who ascribed to this article represent “hundreds

of years of experience researching, diagnosing, and treating asbestos-related disease in workers

and their families.” In addition, collectively, they published extensively in the field of asbestos

and conducting dozens of epidemiologic and other studies into the issue of asbestos and disease.

Their published a paper outlines the consensus of the mainstream scientific community regarding

asbestos, particularly chrysotile asbestos, and its ability to cause mesothelioma. Far from

demonstrating that Dr. Brody’s causation opinions are unfounded and unwarranted, these

researchers report:

Chrysotile asbestos mining companies and manufacturers have argued for more than 30 years either that their products do not cause disease or that there is insufficient evidence to reach a reliable conclusion. Numerous scientific articles and criticisms have specifically exposed the artificial uncertainty created by the proponents of chrysotile asbestos, and their position has been repeatedly and consistently rejected by the mainstream scientific and regulatory communities.

C. Courts Across the Country have Consistently Allowed Expert Testimony that Each and Every Exposure to Asbestos Contributes to Cause Mesothelioma.

In support of their motion, Georgia Pacific asserts that there is a growing number of

courts have rejected the proposition that each and every exposure to asbestos in excess of

background levels contributes to cause mesothelioma. This Court, however, recently allowed a

plaintiff’s expert to offer that very same opinion finding that it satisfied the three requirements of

Daubert – qualification, reliability, and fit. Schumacher v. Amtico, C.A. No. 2:10-1627 (E.D.

Pa. Nov. 2, 2010)(Exhibit 9).

To support its argument, Georgia Pacific cites the bench ruling in case of Free v. Ametek,

Cause No. 07-2-04091-9 SEA (Feb. 2, 2009). What Georgia Pacific fails to mention, however,

is that, in another Seattle case, after a Frye Hearing where the court heard testimony from a

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variety of experts concerning the general acceptance of the opinion that all exposures above

background levels cumulatively and contribute to cause mesothelioma, the Honorable Sharon

Armstrong, the former chief asbestos judge in King County, denied the motion to exclude the

testimony acknowledging that such testimony has routinely been accepted by courts in

Washington state.8

Moreover, a brief review of the cases that Georgia Pacific cites in footnote 5 of their

motion that is allegedly representative of the new trend toward excluding opinion evidence that

each and every exposure above background levels is a cause mesothelioma demonstrates that

their characterization of those cases is incorrect. With the exception of Free v. Ametek, none of

cases involved the exclusion of opinion testimony regarding causation. Instead, each of these

cases involved instances where the court determined that the plaintiff simply failed to meet his

or her burden of proof that the exposure to the defendants’ product in question was more than

trivial or di minimus:

* The Texas Supreme Court held that as a matter of law evidence that the plaintiff was

exposed to “some asbestos” was insufficient to support causation because Texas law requires

the plaintiff to quantify the approximate amount of dose from a particular defendant’s product.

Borg Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007)9;

8 Transcript from Frye Hearing, Lott v. Bondex International, No. 05-06955-4 SEA (November 6, 2006)(Exhibit 10). See Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d 684 (Wash. 1997) (any exposure to asbestos above background contributes to development of mesothelioma); Butler v. Amtico Int’l., Inc., 2008 WL 434725 (Wash.App. Div. 1, Feb. 19, 2008)("A plaintiff need only establish that defendant's product was among other sources of asbestos exposure in the plaintiff's environment that cumulatively caused the disease.").

9 Georgia Pacific also cites Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304 (Tex. App.-Hous. 2007) and In re Asbestos, No. 2004-3-964 (Tex. Dist. Ct. Jul. 18, 2007), two additional cases decided under the new causation requirement espoused in Borg Warner that the plaintiff quantify the approximate defendant-specific dose of exposure to asbestos, a requirement that has not been imposed in an asbestos case any other jurisdiction in the United States.

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* The Pennsylvania Supreme Court intimated that evidence of exposure to the defendant’s

product "two or three times" appeared de minimus but remanded the case for a determination as

to whether there was sufficient evidence to show frequency, regularity and proximity to

products sold by the defendant. Gregg v. V-J Auto Parts Inc., 943 A.2d 216 (Pa. 2007)10;

* A Delaware bankruptcy court found that the mere presence of insulation in the attic

containing less than 1% asbestos did not pose as serious risk of harm where the evidence

established that the risk of exposure form the insulation was "less than that of dying in a bicycle

accident , by drowning, or from food poisoning." In Re W.R. Grace & Co., 355 B.R. 462

(Bankr. D. Del. 2006);

* A bench trial in which the federal district court in Ohio found as a fact that plaintiff had

failed to prove that more than ambient air levels of asbestos was released when working on

gaskets and packing. Bartel v. John Crane, Inc. 316 F.Supp.2d 603 (N.D. Ohio 2004); and

* A decision from the Mississippi Court of Appeals involving students and teachers who

were unable to meet their burden of proving the reasonableness of their fear of future harm in a

case against subcontractors who installed a new heating system in their schools. Brooks v. Stone

Architecture, 934 So.2d 350 (Miss. Ct. App. 2006).

In fact, if there is a trend, the recent decisions of courts throughout the country is to

continue to allow testimony that there is no threshold below which mesothelioma does not

occur; that mesothelioma occurs at extremely low levels of exposure; and that mesothelioma is a

dose-dependent disease in which each and every exposure to asbestos affects the likelihood that

10 Undermining Georgia Pacific’s citation of this case is a recent decision in Estate of Hicks v. Dana Companies, LLC, wherein a panel of the Superior Court of Pennsylvania concluded that it could "discern nothing in the Gregg opinion mandating the medical evidence presented by Appellee herein is automatically insufficient to raise a factual question of causation." 984 A.2d 943, 946, n. 27 (Pa. Super. 2009).

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the disease will occur and the timing of when it will occur if it is going to occur – all established

medical facts that have been part of the asbestos litigation since its inception.11 For example, in

Hicks v. Dana Companies, 984 A.2d 943 (Pa. Super. 2009)., a panel of the Superior

Court of Pennsylvania was faced with an appeal from a jury verdict in

plaintiff's favor where the trial court allowed the Plaintiff's expert to offer the

same causation opinions that Georgia Pacific challenges here.12 Disagreeing

with the defense argument that the medical opinion that "each and every

breath" contributed to cause the plaintiff's disease should be rejected as a

matter of law and noting prior precedent that "the substantial factor test is

11 See e.g., John Crane, Inc. v. Wommack, 227 Ga.App. 538, 489 S.E.2d 527 (1997)("Expert testimony showed that it is universally agreed that asbestos fibers are intrinsically dangerous and that the respiration of each fiber is cumulatively harmful"); Blancha v. Keene Corp., 1991 WL 224573 at 6 (every occupational exposure to asbestos "is a substantial factor in bringing about mesothelioma"); Held v. Avondale Industries, Inc., 672 So.2d 1106, 1109 (La.App. 1996). (medical evidence showed “no known level of asbestos [exposure] which would be considered safe . . . . any [asbestos] exposure, even slight exposures, to asbestos . . . [found to be] a significant contributing cause of the [decedent’s] malignant mesothelioma.”); Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d 684 (Wash. 1997) (any exposure to asbestos above background contributes to development of mesothelioma); Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 313-14, 689 A.2d 757, 761 (N.J. Super. Ct. App. Div. 1997))("Where there is competent evidence that one or a de minimus number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury."); AC & S, Inc. v. Abate, 710 A.2d 944, 988 (Md.App. 1998) (expert medical witness testified that “each and every [asbestos] exposure that [the decedent] had was a substantial contributing factor in the causation of his disease.”); Carvolo v. AC & S, Inc., 1999 Westlaw 147740, *9 (S.D.N.Y. 1999) (expert medical witness testimony that “there is no way one can say [each asbestos exposure] didn’t contribute. To the contrary, all of his exposures contributed to his mesothelioma, including this one.”) Purcell v. Asbestos Corp. Ltd., 153 Or.App. 415, 959 P.2d 89 (1998)( Dr. Andrew Churg, defense expert pathologist, testified "that a single exposure to asbestos can cause mesothelioma, with each subsequent exposure exponentially increasing the risk of disease.").

12 There, the Plaintiff's expert, Dr. James C. Giudice, testified that mesothelioma like other asbestos-related diseases are dose response diseases wherein the more asbestos that accumulates in the lung, the greater the likelihood disease will occur; that there is no lower threshold of exposure to asbestos that would protect a worker from developing mesothelioma; and that each and every exposure to asbestos is significant in the causation of mesothelioma.

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not concerned with the quantity of the injury-producing agent or force but

rather its legal significance,"13 the court upheld the verdict. The court's

decision was in line with prior precedent.14

Similarly, in John Crane, Inc., v. Linkus, Md. App. LEXIS 17 (2010)(Exhibit

11), the defense appealed a plaintiff's verdict that was based upon testimony

from plaintiff's experts that mesothelioma is a dose-related disease, that

there is no known safe level of exposure to asbestos below which

mesothelioma would not develop and that all exposures to asbestos above

background levels contribute to the development of mesothelioma. On

appeal, the defense argued that "generalized expert opinions declaring that

any exposure to asbestos, however minimal, is a substantial factor in the

development of asbestos disease, are insufficient to establish causation."15

The court disagreed and held that "lay testimony describing the amount of

dust created by handling the products in question, coupled with expert

testimony describing the dose response relationship and the lack of a safe

threshold of exposure (above ambient air levels),” was sufficient to create a

jury question. In reaching its decision, the Court reviewed many of the

same cases offered by Georgia Pacific and concluded that they do not stand

13 Id. (emphasis in the original).

14 Smalls v. Pittsburgh Corning, 2004 PA Super 31, 31-32, 843 A.2d 410, 414 (2004)(court rejected the defendants argument the plaintiff's expert's opinion that "each and every breath of asbestos fibers is [a] significant and substantial contributing factor to the asbestos disease of Mr. Small" had no basis in fact or general acceptance in the scientific community).

15 Id. at p. 8.

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for the proposition that testimony regarding the significance of each and

every exposure is inadmissible.16

16 Id. at pp. 10-11.

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D. Evidence of the Quantified Dose is not Required to Testify about Causation.

Without citing any decisions in asbestos cases, Georgia Pacific contends that Dr. Brody’s

causation testimony is unreliable because he is not aware of the quantum of asbestos Mr.

Anderson may have inhaled as a result of using their product. This argument is a red-herring.

Dr. Brody is not being offered to give a specific causation opinion in this case.

Moreover, even if he were to give such an opinion, there is no requirement under the law

of this Circuit or under Utah law that a dose of asbestos has to be quantified before an expert can

offer an opinion on causation. Throughout this litigation, courts have uniformly adopted the

following standard in mesothelioma cases:

Thus, it is not essential to establish with any precision the quantity, duration, or percentage of the occupational exposure to asbestos for which any or each particular manufacturer or supplier is responsible in order to establish proximate cause and, therefore, liability. Every such exposure is a substantial factor in bringing about mesothelioma, and may be so found when the latency period is consistent.17

In fact, in the only decision of a court in Utah to address this issue, the Third Judicial

District Court for Salt Lake City County rejected the defendants’ contention that the court

should create a requirement of a quantifiable dose as an element of causation. In re: Asbestos

Litigation, No. 010900863 (Utah 3rd Jud. Dist., Salt Lake City Cty., September 6, 2007)(Exhibit

12)(declining to adopt Texas Supreme Court’s idiosyncratic approach espoused in Borg-

Warner). In declining to adopt a standard similar to Borg-Warner, the Utah court held that “at

the present, there is no agreement regarding dosage requirements which can be quantified with

any mathematical precision.”

17 Blancha v. Keene Corp., 1991 WL 224573 at 6 (emphasis added). See also Spaur v. Owens-Corning Fiber Glass Corp., 510 N.W.2d 854, 861 (Iowa 1994).

17

IV CONCLUSION

For the foregoing reasons, this Court should allow Dr. Arnold Brody to testify regarding

any and all opinions that were either contained in his expert report or testified about in his

deposition. A proposed order is attached.

Dated December 13, 2010.

WATERS & KRAUS, LLP

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