RESPONSE TO CONSOLIDATED PA. R.C.P. 207.1 FRYE MOTION TO EXCLUDE PLAINTIFFS’ CAUSATION EXPERT TESTIMONY THAT RELIES UPON NOVEL SCIENTIFIC EVIDENCE AND REQUEST FOR AN EVIDENTIARY HEARING
Chrysler LLC (“Chrysler”) has requested that this Court conduct a Frye hearing with respect to unspecified expert testimony in more than two dozen cases. Chrysler’s substantive arguments on this subject have been rejected by virtually every court that has ever considered the matter. In this proceeding, the Court does not even need to reach the substantive flaws in Chrysler’s scientific analysis and legal reasoning. Chrysler’s request for a Frye hearing fails as a matter of law because (1) the scientific evidence regarding asbestos-containing friction products cannot be considered “novel” under any definition of that term and (2) Chrysler has refused to comply with the mandatory requirements of Pa. R.C.P. 207.1. Chrysler’s motion should be denied without further delay.
INTRODUCTION AND SCIENTIFIC BACKGROUND
Chrysler presents the Court with an inaccurate and misleading caricature of the scientific analysis of asbestos-containing friction products. Chrysler asserts incorrectly that “there are significant questions as to whether exposure even occurs for people working with or around automotive products . . . .” Consolidated Pa. R.C.P. 207.1 Frye Motion of Chrysler LLC to Exclude Plaintiffs’ Causation Expert Testimony that Relies Upon Novel Scientific Evidence and Request for an Evidentiary Hearing (“Motion”) at 3. In fact, studies by independent researchers and the automotive industry itself have documented that the use of asbestos-containing friction products creates asbestos exposures hundreds or thousands of times greater than background levels and several times greater than the permissible levels set by OSHA. See, e.g., Roberts & Zumwalde, NIOSH, Assessment of Asbestos Exposure to Mechanics Performing Brake Service Operations, April 27, 1981, attached as Exhibit 2, at 24 (reporting exposures of up to 0.28 f/cc TWA for brake mechanics); Hickish & Knight, Exposure to Asbestos During Brake Maintenance, Ann. Occup. Hygiene 13:17-21 (1970), attached as Exhibit 3, at 18-19 (reporting TWA of up to 1.75 f/cc for work on truck brakes and up to 0.68 f/cc for work on car brakes); Environmental Protection Agency, Guidance for Preventing Asbestos Disease Among Auto Mechanics, attached as Exhibit 4, at 1 (“Millions of asbestos fibers can be released during brake and clutch servicing. Grinding and beveling friction products can cause even higher exposures.”); Memorandum from Peter E. Toth dated Aug. 3, 1973, attached as Exhibit 5 (“Overexposure occurred when brakes and brake drums were cleaned using compressed air blowoff.”); National Institute of Occupational Safety and Health Bulletin (“NIOSH Bulletin”), Asbestos Exposure During Servicing of Motor Vehicle Brake and Clutch Assemblies, Aug. 8, 1975, attached as Exhibit 6 at 1 (reporting average peak asbestos air concentrations for fibers longer than 5 μm were 10.5 f/ml for “blow-out” of automobile drum brake assemblies; 3.75 f/ml for grinding of used truck brake linings, and 37.3 f/ml for bevelling of new truck brake linings).
Chrysler also questions whether “any vanishingly small exposure that may occur can cause or contribute to the cause of a disease.” Motion at 3. Since asbestos fibers are microscopic and invisible to the naked eye, all asbestos exposures can be characterized as “vanishingly small.” The relevant question is whether the exposures are medically significant. Chrysler asserts that “[t]he role of low-dose exposures to asbestos in the causation of disease” is “nothing more than an unproven hypothesis.” Motion at 5. On that point, Chrysler and its coterie of retained experts are simply at war with a broad and well-established scientific consensus. For example, the international standards for the diagnosis and attribution of asbestos-related disease recognize that an occupational history of “brief or low-level exposure should be considered sufficient for mesothelioma to be designated as occupationally related.” Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, Scand. J. Work Envtl. Health 23:311-316 (1997) (“Helsinki Criteria”), attached as Exhibit 7, at 313; see also Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992) (discussing scientific evidence that “mesothelioma can result from minor exposures to asbestos products . . . .”).
An important 1998 study published in the American Journal of Epidemiology addressed this question directly. See Iwatsubo, et al., Pleural Mesothelioma: Dose-response Relation at Low Levels of Asbestos Exposure in a French Population-based Case-control Study, Am. J. Epidemiology 148:133-142 (1998), attached as Exhibit 8. In one of the largest population-based case-control studies ever published, the authors calculated that cumulative intermittent exposures as low as 0.5 f/cc, the equivalent of 5 years of exposure at the current permissible exposure limit of 0.1 f/cc, resulted in a four-fold increase in mesothelioma with a 95% CI of 1.7-9.7. In fact, the available data indicate that the risk for pleural mesothelioma increases “relatively more steeply at low exposures but less steeply at high exposures.” Coggon, et al., Differences in Occupational Mortality from Pleural Cancer, Peritoneal Cancer, and Asbestosis, Occup. Envtl. Med. 52: 775-777 (1995), attached as Exhibit 9, at 777 (emphasis added).
Since the 1970s, scientists in the field have concluded that occupational exposure to asbestos from friction products can cause or contribute to the development of asbestos-related diseases. In 1975, the National Institute of Occupational Safety and Health concluded that brake servicing could produce “significant exposures” to asbestos and recommended warning brake mechanics that “breathing asbestos duct may cause asbestosis and cancer.” NIOSH Bulletin, supra. In 1986, the Environmental Protection Agency concluded that occupational exposure to asbestos had caused asbestosis and asbestos-related cancer among brake mechanics. See Environmental Protection Agency, Guidance for Preventing Asbestos Disease Among Auto Mechanics, supra. In 1987, the Journal of the American Medical Association published an article on mesothelioma in occupations with relatively low-level asbestos exposure, including brake mechanics:
[E]pidemiologists are recording cases of [mesothelioma] in persons who have worked with materials containing even small quantities of asbestos. . . . Brake-lining repair-persons, workers in chemical plants, refineries, powerhouses, and factories, and building maintenance personnel all are at risk.
Mesothelioma: Has Patient Had Contact With Even Small Amount of Asbestos? 257 JAMA 1569 (Mar. 27, 1987), attached as Exhibit 10 (emphasis added). More recently, independent scientists convened to advise the World Trade Association concurred in finding a causal relationship between friction product exposure and asbestos related disease. See World Trade Organization, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the Panel, Sept. 18, 2000 (“WTO Report”), excerpts attached as Exhibit 11, at ¶5.261 (opinion of Dr. Peter Infante, former Director of the OSHA Office of Standards Review, that “[e]xposure to chrysotile asbestos through the manufacturing and downstream manipulation of friction products and textiles carries with it the risks associated with exposure to asbestos, most notably, lung cancer, asbestosis and mesothelioma.”); see also id at ¶5.263 (opinion of Dr. Arthur Musk that “there is a risk of disease from the release of chrysotile fibres from friction products (as in brakes and clutches)… In general the risk will be dependent on the degree of exposure…”).
It is understandable that Chrysler wishes to ignore unfavorable scientific opinions, but these views cannot plausibly be characterized as “novel.” Absent any such showing, Chrysler’s request for a Frye hearing should be denied.
SCIENTIFIC EVIDENCE THAT EXPOSURE TO ASBESTOS-CONTAINING FRICTION PRODUCTS CAUSED ASBESTOS-RELATED DISEASE IS NOT “NOVEL.”
The Frye standard “is an exclusionary rule of evidence. As such, it must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.” Trach v. Fellin, 817 A.2d 1102, 1104 (Pa. Super. 2003). The standard does not apply “every time scientific experts are called to render an opinion at trial, a result that is nothing short of Kafkaesque to contemplate.” Id. at 1110. Rather, the Frye standard can be invoked only when the proffered testimony is based on “novel scientific evidence.” See Commonwealth v. Dengler, 890 A.2d 372, 382 (Pa. 2005).
As discussed above, the scientific analysis of asbestos exposure from friction products dates back more than three decades. Courts in Pennsylvania and other jurisdictions have been considering expert testimony regarding asbestos-containing friction products for almost as long. In 1985, in a case tried in federal court under Pennsylvania law, a friction product manufacturer challenged a verdict based on expert testimony that the decedent’s exposure to asbestos from brake linings was a cause of his lung cancer. See Burton v. Johns-Manville Corp., 613 F.Supp. 91 (D. Pa. 1985). The court found that the expert testimony supported a finding that asbestos from the brake linings, among other exposures, contributed substantially to the injury:
The law does not require that each of concurring contributing causes itself be sufficient to bring about the harm of which plaintiff complains. It is sufficient that all concurring causes be a substantial factor in bringing about that harm. Here, Dr. Parkinson testified that decedent’s exposure to asbestos fibers at Beck-Arnley was a significant or major factor in causing the adenocarcinoma of the lung from which the decedent died and that asbestos from new brake linings sold to Beck-Arnley by the defendant Auto Friction constituted a significant portion of the asbestos dust and fibers to which decedent was exposed. *** Of course the doctor could not testify as to how much any particular asbestos product, among many, contributed to decedent’s disease and death, but he could, and did, testify that asbestos was the cause and that defendant’s product contributed substantial asbestos dust and fibers to decedent’s environment. That was enough.
Id. at 94. Based on the expert testimony “the jury could infer, and not merely speculate, that defendant’s products were a substantial contributing cause of decedent’s disease and resultant death.” Id. at 95. In 1990, the Third Circuit reversed a summary judgment in favor of a friction products manufacturer, finding that the expert testimony and other evidence raised a fact issue as to causation.
Robertson v. Allied Signal, Inc., 914 F.2d 360, 376-77 (3rd Cir. 1990).
Pennsylvania is not unique in this regard. In denying Chrysler’s motion to exclude expert testimony, the judge assigned to hear asbestos cases in Chrysler’s home state of Michigan observed:
Initially, this Court will note that auto mechanics working on brakes have been bringing asbestos cases in this country and in this court for more than 20 years. . . . This case does not present a situation like the one that was presented to me in the breast implant litigation regarding whether the science supported the plaintiffs’ claim that breast implants caused injury to the auto-immune system. The science with respect to exposure to asbestos and causation of mesothelioma has existed for years.
Transcript of Daubert Hearing, Chapin v. A&L Parts, Inc., No. 03-324775-NP (Mich. Cir. Ct., Wayne County, Mich.) May 25, 2004, excerpts attached as Exhibit 12, at 9-10. In connection with Chrysler’s appeal of the Michigan ruling, a group of four dozen concerned scientists from throughout the world submitted an amicus brief providing an excellent summary of the scientific analysis of friction products over the last 30 years. A copy of this amicus brief is attached as Exhibit 13. The court hearing asbestos cases in Delaware, which follows the Daubert standard, likewise found that a sufficient “body of scientific data” existed to support expert testimony that exposure to friction products is a cause of asbestos-related disease. See In re Asbestos Litig., 911 A.2d 1176, 1203-04 (Del. Super. Ct. 2006).
Judge Helen Freedman, who likely has more experience presiding over asbestos cases than any other living jurist, denied Chrysler’s request for a Frye hearing last year, finding that the expert testimony was not novel. See Berger v. Amchem Products, 818 N.Y.S.2d 754 (N.Y. Sup. Ct. 2006). Judge Freedman agreed with the plaintiffs that “no new scientific claim is being made here. It has long been established that . . . relatively small numbers of fibers that are inhaled may remain in the lungs for long periods and cause mesothelioma.” Id. at 759.
After reviewing decisions in similar proceedings throughout the country, Judge Freedman concluded that “[f]or the reasons stated by the majority of judges who have dealt with this specific issue . . . a Frye hearing to establish causation or lack thereof for all cases in the New York City Asbestos Litigation, or for these particular plaintiffs is not appropriate.” Id. at 761; see also In re New York City Asbestos Litig., 806 N.Y.S.2d 531, 532 (N.Y. App. Div. 1st Dept. 2005) (“Defendants-appellants’ claim that a Frye hearing should have been held is without merit. The link between asbestos and disease is well documented, and the parties merely differed as to whether the asbestos contained in this particular product could be released in respirable form so as to cause disease. Since the parties argued over causation, no novel scientific technique or application of science was at issue, and a Frye hearing was not warranted.”).
Chrysler’s motion does not articulate any basis for finding that the causation opinions in these cases are based on “novel scientific evidence.” Rather, Chrysler asserts in a conclusory fashion that the testimony is somehow “novel” when “applied in the context of automotive friction products.” Motion at 3. In light of scientific literature dating back to the mid 1970s, and judicial opinions dating back to the mid 1980s, Chrysler’s argument is untenable. Because the expert testimony in this case is not even arguably based on “novel scientific evidence,” a Frye hearing is neither necessary nor appropriate. See
CHRYSLER HAS FAILED TO COMPLY WITH THE PROCEDURAL MANDATES OF PA. R.C.P. 207.1.
In the context of a Frye challenge, the question of “[w]hat constitutes novel scientific evidence has historically been decided on a case-by-case basis” and “the strength of the proponent’s proffer may affect the Frye determination.” Commonwealth v. Dengler, 890 A.2d 372, 382 (Pa. 2005). As a matter of procedural fairness and substantive accuracy, an expert’s methods and opinions should be evaluated in the context of the applicable scientific literature and the facts of the case. Reflecting this policy, Rule 207.1 contains specific procedural requirements for Frye motions. Such motions “shall contain” the following:
(i) the name and credentials of the expert witness whose testimony is sought to be excluded,
(ii) a summary of the expected testimony of the expert witness, specifying with particularity that portion of the testimony of the witness which the moving party seeks to exclude,
(iii) the basis, set forth with specificity, for excluding the evidence,
(iv) the evidence upon which the moving party relies, and
(v) copies of all relevant curriculum vitae and expert reports.
Pa. R.C.P. 207.1(a)(1) (emphasis added). The plain language of the rule precludes the sort of broad, generalized motion filed by Chrysler. In defense of its failure to comply with the minimum requirements of the rule, Chrysler asserts that all causation opinions are “generic.” Motion at 4 n.1. Even if that description were accurate, which it is not, the rule does not create any exceptions for litigants who consider opposing viewpoints to be “generic.”
Contrary to Chrysler’s representation, the evaluation of expert testimony will differ, depending on the disease at issue; the nature of the exposure; the pathological findings, if any; and other case-specific factors. Ignoring this fact will likely lead to a colossal waste of judicial resources. The experience of the asbestos multidistrict litigation court in Texas is instructive on this point. At Chrysler’s insistence, the Texas court conducted an extensive hearing involving numerous expert witnesses, dozens of parties and hundreds of documents. After this significant investment of time and effort, the Texas court concluded that a “case by case review” of expert testimony was required. Berger, 818 N.Y.S.2d at 760 (discussing Texas case). Chrysler’s promise of a global resolution proved completely illusory.
To avoid such unfair and pointless proceedings, Rule 207.1 requires that Frye motions identify the particular testimony to be excluded and specify the grounds for exclusion. Chrysler’s sweeping, open-ended attack on any and all causation opinions does not even attempt to comply with these requirements. The only ascertainable purpose of this effort to circumvent Rule 207.1 is to delay or disrupt trial settings, some of which are scheduled this month. These litigants should not give up their day in court to accommodate Chrysler’s unwillingness to abide by the applicable rules of procedure. Chrysler’s request for a Frye hearing should be denied.
- ↑ The generally accepted “background level” for asbestos in the air is 0.00005 fibers/cc. See Pathology of Asbestos-Associated Diseases (Roggli, et al., eds., 2nd ed. 2004), excerpt attached as Exhibit 1, at 26 (Table 2-1) (reporting median concentrations of asbestos in air)