PLAINTIFF’S RESPONSE TO THE SHERWIN-WILLIAMS COMPANY’S
MOTION TO STRIKE CAUSATION TESTIMONY OF DR. SAMUEL HAMMAR
Plaintiff Bobby Dale James, by and through his undersigned counsel, hereby files his Response to the Motion to Defendant The Sherwin-Williams Company’s Motion to Strike Causation Testimony of Dr. Samuel Hammar (“Motion”) and would respectfully show as follows:
Table Of Contents
Dr. Samuel Hammar is a pathologist and one of the world’s leading experts on mesothelioma. He is one of 12 members of the U.S.-Canadian Mesothelioma Panel and of 25 members of the International Mesothelioma Pathology Group. Deposition of Samuel P. Hammar, M.D., January 11, 2006 (“Hammar Deposition”), excerpts attached as Exhibit 1, at 25-27. He is the co-editor of the textbook Pulmonary Pathology and the author of more than 30 peer-reviewed articles on asbestos-related disease. Id. at 23-24; see also Curriculum Vitae, attached as Exhibit 2. The Sherwin-Williams Company (“Sherwin-Williams”) is seeking to exclude Dr. Hammar’s opinions on causation in this case.
At the outset, the Court should note that Sherwin-Williams has failed to identify a valid legal basis for striking Dr. Hammar’s testimony. Sherwin-Williams argues that Dr. Hammar’s testimony is “legally insufficient.” Motion at 1. Even if that assertion were true, legal sufficiency has nothing to do with the admissibility of evidence. Most individual pieces of evidence are, in and of themselves, insufficient to support a verdict. Sufficiency of the evidence is determined from the totality of the admissible evidence. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1996). Borg-Warner v. Flores, upon which Sherwin-Williams bases its entire argument, expressly declined to address the admissibility of the expert testimony in that case, finding that the issue had been waived on appeal. Borg-Warner v. Flores, __ S.W.3d ___, slip op. at 6 n.11.
The procedure for challenging legal sufficiency prior to trial is a motion for summary judgment, a device that Sherwin-Williams has invoked on three separate occasions. Each time, this Court has found that genuine issues of fact exist. The repeated denial of summary judgment necessarily represents a finding that the factual evidence and expert testimony, if believed by the jury, would be sufficient to support a verdict. Sherwin-Williams’ reiteration of its unsuccessful legal sufficiency challenge does not constitute a valid objection to Dr. Hammar’s expert testimony.
Even if Sherwin-Williams had made a cognizable objection to Dr. Hammar’s testimony, its underlying reasoning is hopelessly flawed. Contrary to Sherwin-Williams’ assertion, Borg-Warner does not adopt a “stringent” standard requiring calculation of a numerical dose of asbestos exposure from each potential source. Motion at 1-2. Borg-Warner articulates a highly pragmatic and flexible standard, explicitly recognizing that “substantial-factor causation, which separates the speculative from the probable, need not be reduced to mathematical precision. Defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease, will suffice.” Borg-Warner, slip op. at 12 (emphasis added). The court explicitly recognized that “[t]he long latency period for asbestos-related diseases, coupled with the inability to trace precisely which fibers caused disease and from whose product they emanated, make this process inexact.” Id.
Dr. Hammar’s testimony will assist the jury in evaluating whether Mrs. James’s exposure to asbestos from Sherwin-Williams products was a “substantial factor” in causing her mesothelioma. His opinions are based on an extensive body of medical and scientific literature on the role of low-dose exposures in causing mesothelioma. Such testimony is relevant, reliable and admissible in this case.
ARGUMENT AND AUTHORITIES
An Expert Is Not Required to Calculate a Specific Dose from Each Potential Source.
Sherwin-Williams argues that Dr. Hammar’s testimony is inadmissible because he “cannot quantify” Mrs. James’s individual “dose of asbestos.” Motion at 1. As Dr. William Longo has explained, it is not possible to reconstruct an individual’s dose of asbestos exposure. See id. at 2. It is possible to determine the ranges of exposure from particular activities, such as sanding joint compound and laundering clothing. These ranges, coupled with factual testimony about Mr. James’s use of products supplied by Sherwin-Williams, provide a reasonable basis for the jury to evaluate the probable level of asbestos exposure from Sherwin-Williams products.
Addressing similar testimony by Dr. Longo, the court presiding over the multidistrict litigation (MDL) for asbestos cases held that “Dr. Longo’s affidavit, based on the Plaintiff’s deposition and on studies of asbestos emissions from various activities, gives an approximation as to his exposure level that meets the Havner standard of ‘equal to or greater than’ toxicity levels and meets the substantial causal factor test; this constitutes the kind of ‘Defendant-specific testimony’ called for in the Supreme Court’s opinion in Borg Warner.” Order dated July 18, 2007, attached as Exhibit 3, at 4. Although the ruling is not binding on this Court, it is useful in deciding how to apply the decision in Borg-Warner.
As discussed above, Borg-Warner does not demand an unrealistic degree of precision. Citing the California Supreme Court’s opinion in Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997), the court in Borg-Warner recognized that evaluating asbestos exposure was necessarily an “inexact” process. Borg-Warner at 12. In Rutherford, the court explained that the “substantial factor” standard was not intended to impose unreasonable burdens on plaintiffs and cautioned that “[u]ndue emphasis should not be placed on the term ‘substantial.’” Rutherford, 941 P.2d at 1214. The “substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.” Id. at 1220. In Borg-Warner, the Texas Supreme Court took a similar view, explaining that the term “substantial” is used “to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense . . . .” Borg-Warner at 8.
The ultimate issue is whether “the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer . . . .” Borg-Warner at 12 (quoting Rutherford, 941 P.2d at 1219) (emphasis in original). Dr. Hammar’s expert medical testimony is certainly relevant to the jury’s consideration of this issue.
Dr. Hammar’s Opinions Have a Reliable Scientific Basis.
Based on his own research and the extensive scientific literature, Dr. Hammar can assist the jury in determining whether Mrs. James’s exposure to asbestos from Sherwin-Williams products was a “substantial factor” in the development of her disease. Specifically, Dr. Hammar can explain the significance of low-level exposures to asbestos in causing mesothelioma, based on several decades of research published in the medical and scientific literature.
The relevant studies have documented statistically significant increases in mesothelioma risk among cohorts exposed to cumulative levels of asbestos comparable to Mrs. James’s exposure. See, e.g., 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 4, at 139 (Table 5) (reporting four-fold increase in mesothelioma risk for intermittent exposures between 0.5 and 0.99 fiber-years). Based on such studies, the consensus among scientists is that “brief or low-level exposure” is sufficient to induce mesothelioma and that “a history of significant occupational, domestic, or environmental exposure to asbestos will suffice for attribution.” 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 5, at 313. In Borg-Warner, the court noted that “it is generally accepted that one may develop mesothelioma from low levels of asbestos exposure.” Borg-Warner at 10.
In the context of mesothelioma, researchers have long recognized that family members of exposed workers are at risk. Individuals living with exposed workers have significantly increased rates of mesothelioma, and “[i]n some circumstances, exposures such as those occurring among household members may approach occupational levels.” Helsinki Criteria at 313; see also Hillderdal, Mesothelioma: Cases Associated with Non-Occupational and Low-Dose Exposures, Occup. Envtl. Med. 56:505-513 (1999), attached as Exhibit 6.
After reviewing Mrs. James’s history of asbestos exposure, Dr. Hammar concluded that she was exposed to sufficient amounts of asbestos to cause mesothelioma and that the exposure attributable to Sherwin-Williams was a “significant contributing factor in the development of her mesothelioma.” Hammar Deposition at 86-88. Although this testimony cannot be “reduced to mathematical precision,” it is scientifically reliable and highly relevant. Sherwin-Williams has offered no valid reason to exclude Dr. Hammar’s opinions on causation.
The Plaintiff respectfully requests that the Motion to Strike Causation Testimony of Dr. Samuel Hammar be DENIED in its entirety.
- ↑ Sherwin-Williams attempts to distort the meaning of this passage by omitting the first sentence and inserting the word “only” before “Defendant-specific.” See Motion at 1. Read in its entirety, the Borg-Warner decision does not even arguably support Sherwin-Williams’ narrow and unreasonable view of causation.