Challenging Expert Opinions: Every Fiber Does NOT Contribute Edward M. Slaughter eslaughter@hptylaw.com Hawkins Parnell Thackston & YoungLLP Atlanta • Austin • Charleston • Dallas Los Angeles • St. Louis • San Francisco 1

Expert Causation Opinions can be successfully challenged The Take Away Expert Causation Opinions can be successfully challenged The strategy has to begin with the facts I will give you a copy of any of the rulings eslaughter@hptylaw.com 2

Challenging Expert Opinions: Every Fiber Does NOT Contribute Plaintiffs causation experts should be challenged when they lack: Some approximation of dose Epidemiology showing that dose is causative Facts showing the plaintiffs exposure matches the epidemiology 3

The Single Fiber Theory Every Exposure above Background Changing Terminology The Single Fiber Theory Every Exposure above Background Every “Special” Exposure Every “Identified” Exposure Every non-trivial Exposure No Safe Level Every Exposure from someone with $$$ 4

Legal Standards Re: DOSE Some approximate quantification of dose What does Borg Warner mean anymore? Frequency, Proximity & Duration Substantial Factor contributing to the cause Substantial Factor increasing the risk All require a an approximation of dose 5

The Ideal Expert Challenge Scenerio Clear evidence about product use Defense Industrial Hygienist Calculates Extremely Low Dose Exposure Calculates High Alternative Exposure No Plaintiff Industrial Hygienist to respond Plaintiffs causation expert has no foundation to estimate a dose or dose range 6

Example of Friction Exposure Exposure Duration (work-years) Asbestos Concentration (f/cc) Cumulative Asbestos Exposure Dose (f/cc-years) Low High Cumulative Estimate of Vehicular Brake or Friction Work <0.25 Average TWA = 0.04 <0.01 Ambient Lifetime Exposure 49-year lifetime equivalent 0.0001 0.001 0.021 0.21 Exposure Estimate at Current OSHA PEL 40 0.1 4.0 7

Challenging Expert Opinions: Every Fiber Does NOT Contribute Challenging Plaintiff’s Industrial Hygienist opinions is a different presentation Challenging Plaintiff’s Causation expert based on the lack of a reliable dose approximation And the lack of reliable epidemiology to support causation 8

Plaintiff’s exposure evidence has to be well developed at deposition Facts are the Key Plaintiff’s exposure evidence has to be well developed at deposition Duration of the work done Number of times the work was done Some explanation how the product was manipulated to create dust The sort of facts that allow for a dose estimate 9

Expert Challenge Wins and Losses In Re: Asbestos Litigation (Pennsylvania) September 24, 2008 Rejected testimony based on the every exposure theory “claimed methodology simply does not exist or is so convoluted and inherently contradictory so as to defy any comprehension.” 10

Expert Challenge Wins and Losses Butler v. Union Carbide Corporation (GA) Trial court decision, June 29, 2010); affirmed June 15, 2011; cert denied October 17, 2011 Excluding the testimony of Dr. Maddox and characterizing the “any exposure” theory as “at most, scientifically-grounded speculation: an untested and potentially untestable hypothesis.” 11

Expert Challenge Wins and Losses Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588 (Tex. App. Dallas, August 26, 2010) Excluding “each and every exposure” testimony from Drs. Samuel Hammar, Arnold Brody and Richard Kronenberg. 12

Expert Challenge Wins and Losses Robertson v. Doug Ashy Building Materials, Case No. 532-769, 19th Judicial District Court, East Baton Rouge, Louisiana (March 2, 2010).[1] Striking testimony from Dr. Eugene Mark, that “every fiber above background” or “every special exposure” to asbestos was a substantial contributing factor to the causation of mesothelioma. [1] Reversed and remanded by Louisiana Court of Appeals on October 4, 2011, appeal to Louisiana Supreme Court in progress. 13

Smith v. Kelly-Moore Paint Company, Case No Smith v. Kelly-Moore Paint Company, Case No. 2-08-198-CV, Court of Appeals, Second District of Texas, Fort Worth (February 25, 2010). Ruben v. Asbestos Corporation, Ltd., et al., Los Angeles Superior Court Case No. BC396559, Ruling On Motion In Limine By The Honorable Rita Miller (January 25, 2010). Daly v. Arvinmeritor, Inc., Case No. 07-19211, Circuit Court of the 17th Judicial Court, Broward County, Florida (November 30, 2009). Lena K. Degrasse v. Anco Insulations Inc., et al., No. 07-12736, in the Civil Dist. Court for the Parish of Orleans, Div. G, Section 11, Judgment on Motion In Limine (June 11, 2009). In Re: Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler LLC, in the Court of Common Pleas for the First Judicial District of Pennsylvania, Civil Trial Division, Control #084682, Findings, Memorandum and Order on Motion to Exclude Plaintiff’s Causation Expert Testimony that Relies Upon Novel Scientific Evidence and Request for Evidentiary Hearing, Tereshko, A.L (September 24, 2008) Free v. Ametek, Cause No. 07-2-0409109 SEA, Superior Court, King County, State of Washington, p. 5 (February 29, 2008). 14

Georgia-Pac. Corp. v. Stephens, 239 S. W. 3d 304, 320-21 (Tex. App Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 320-21 (Tex. App. 2007), reh’g overruled (Oct. 13, 2007), review denied (Feb. 22, 2008). In Re Asbestos, Cause No. 2004-3,964 (Tex. Dist. Ct. July 18, 2007), Letter Ruling. Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, 226-27 (Pa. 2007). In re W.R. Grace & Co., 355 B.R. 462, 474, 478 (Bankr. D. Del. 2006), leave to appeal denied, No. 07-MC-0005 RLB, 01-1139, 2007 WL 1074094 (D. Del. Mar. 26, 2007). In re Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008 at *7-8 (Pa. Ct. Com. Pl. Aug. 17, 2006); Basile v. Am. Honda Motor Co., No 11484 CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007) (order granting Caterpillar Inc.’s motion to exclude plaintiffs’ expert testimony); Summers v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. Ct. 2005), appeal granted, 897 A.2d 460 (Pa. 2006). Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006). In Re: Asbestos Litig., Cause No. 2004-03964, Letter Ruling, Davidson J., 11th District Court; Harris County, Texas, January 20, 2005. Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), aff’d sub nom. 15