Recently, after extensive oral arguments, HeplerBroom Partner Josh Schumacher convinced the United States District Court for the Eastern District of Wisconsin to bar several Plaintiffs’ experts from offering specific causation or industrial hygiene opinions pursuant to Daubert v. Merrel. Dow Pharmaceuticals, 509 U.S. 579 (1993) and its progeny. The Daubert hearing was conducted by United States District Court Judge Pamela Pepper.
In Ahnert v. CBS Corporation, et al., Plaintiff alleged that toxic exposure to asbestos at numerous locations and to a multitude of products served to cause several allegedly asbestos-related diseases. Plaintiff’s experts sought to present both medical causation and industrial hygiene “cumulative exposure” opinions.
Representing a premises owner where Plaintiff alleged exposure, Schumacher argued that Plaintiff’s industrial hygienist, Kenneth Garza, CIH, and Plaintiff’s two medical causation witnesses, Henry Anderson, M.D. and Brent Staggs, M.D. — all frequently retained by the toxic tort Plaintiff’s bar throughout the country — failed to meet the threshold admissibility standards of Federal Rule of Evidence 702. Schumacher argued that Plaintiff’s “cumulative exposure” opinions were nothing more than a re-packaged form of the derided “each and every” exposure opinion many Plaintiffs’ experts have espoused for years.
Agreeing with Schumacher’s arguments, the Court ruled that despite Plaintiff’s use of different nomenclature and phraseology, Plaintiff’s experts’ opinions suffered from the same defects as the “each and every” theory. The Court specifically noted that Plaintiff’s experts lacked any recognized or reliable methodology, failed to offer any consideration of the scientific principles of dose, and failed to connect their opinions to the facts of the case. The Court specifically cited Schumacher’s deposition questioning of Plaintiff’s expert Dr. Staggs in its justification of its ruling to exclude and bar the experts, noting that although Dr. Staggs tried to distance himself from the “each and every” theory of causation, his answers to numerous pointed questions clearly detailed that there was no functional difference between “cumulative exposure” and “each and every” exposure opinions as applied in this matter. The Court barred Plaintiff’s industrial hygienist, Mr. Garza, from offering any testimony in the matter, and it barred Drs. Anderson and Staggs from offering any case-specific medical causation testimony (i.e. any testimony connecting Plaintiff’s alleged exposure at any specific facility or to any specific product) regarding any individual defendants.
In barring Plaintiff’s experts, the Court firmly rejected industrial hygiene and medical causation theories often proposed by plaintiffs in asbestos and toxic tort litigation cases seeking to establish causation by all asbestos exposures, no matter how minimal. The Court found that such theories were not grounded in reliable scientific methods, were unhelpful to the trier of fact, and could not serve as Plaintiff’s basis for establishing specific causation against defendants.
Each of the barred experts are frequent witnesses on behalf of toxic tort plaintiffs throughout the United States. Further, it is believed that Judge Pepper’s ruling is the first instance in any United States Court barring or limiting the opinions of Dr. Brent Staggs or Kenneth Garza.