Plaintiffs EMMA JOSEPHINE MALONEY MARTIN, Individually and as Personal Representative of the Heirs and Estate of JAMES HUBERT MARTIN, Deceased, and BRUCE DEAN MARTIN (“Plaintiffs”) file this response to Defendant Georgia-Pacific LLC’s (“Georgia-Pacific”) Amended Motion to Exclude the Expert Testimony of Dr. Longo and Dr. Dikman, and in support would respectfully show the Court as follows:

Table Of Contents


Dr. Longo Was Not Required to Calculate the Precise Amount of Asbestos Exposure Attributable to Georgia-Pacific.

Georgia-Pacific argues that Dr. Longo’s conclusions are irrelevant because he does not calculate “Mr. Martin’s exposure to Georgia-Pacific joint compound, specifically.” Amended Motion at 17. In essence, Georgia-Pacific argues that by using the term “defendant-specific” in Borg-Warner, the supreme court intended to prohibit the drawing of inferences related to exposure. Nothing in Borg-Warner supports such an unreasonable view.

Dr. Longo’s testimony is based on specific tests of Georgia-Pacific joint compound, as well as studies of asbestos-containing joint compounds with similar formulations. In conjunction with the factual testimony on the use of Georgia-Pacific joint compounds, Dr. Longo’s analysis provides the finder of fact with a reasonable basis for evaluating Mr. Martin’s exposure to asbestos from Georgia-Pacific products. The supreme court expressly held in Borg-Warner 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).

Anticipating the language used in Borg-Warner, this Court has previously overruled similar objections to Dr. Longo’s testimony, explaining that “statistical precision is not necessary in order to qualify as an expert opinion.” Transcript dated Oct. 4, 2006, excerpts attached as Exhibit 3, at 5. This Court concluded that “the opinions expressed by Dr. Longo are within published and peer-reviewed and mainstream scientific opinion and otherwise complies with the Daubert and Robinson tests.” Id. at 10. In denying Georgia-Pacific’s motion for summary judgment in the Shake case, this Court 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, supra, at 4.

Georgia-Pacific also complains that Dr. Longo did not “take any dust measurements from his work-sites.” Amended Motion at 20. Since time travel is not an option, it is difficult to understand how Dr. Longo could have taken dust measurements of Mr. Martin’s work sites 30 years ago. Georgia-Pacific also insists that Dr. Longo’s opinion is inadmissible because he “admitted he was aware of certain facts about Mr. Martin’s alleged exposure that create uncertainty in any dose calculation . . . .” Amended Motion at 20.

The existence of “uncertainty” does not render expert testimony unreliable or inadmissible. As the supreme court observed in Borg-Warner, “[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.” Borg-Warner, slip op. at 12. Dr. Longo’s testimony is based on studies of comparable exposures, namely those of bystanders exposed to asbestos-containing joint compound as it is applied. See, e.g., Affidavit of William E. Longo, Ph.D. (“Longo Affidavit”), attached as Exhibit F to Plaintiffs’ Response to Georgia-Pacific LLC’s No-Evidence Motion for Summary Judgment, at 20-25 (discussing levels of bystander exposures to joint compound in controlled studies). While not mathematically precise, these studies permit reasonable inferences to be drawn about the extent of asbestos exposure attributable to Georgia-Pacific’s products.

The specific “uncertainties” identified in Georgia-Pacific’s motion are relatively minor. Georgia-Pacific argues that Dr. Longo cannot be certain that Mr. Martin worked “within 25 to 30 feet” of the work activities described in the depositions. Amended Motion at 21. Dr. Longo actually testified that the “more likely” range based on the deposition testimony was within “3 to 4 feet away, 5 feet away,” because Mr. Martin would be working within one panel of the other workers. Deposition of William E. Longo, Ph.D., attached as Exhibit C to Amended Motion, at 100. The range of 25 to 30 feet represented the maximum distance based on the activities described by Mr. Martin and his co-workers. Id.

Georgia-Pacific also asserts that there is no evidence that Mr. Martin was present on the same days that drywall finishers were working. Amended Motion at 21. This is simply inaccurate. Mr. Martin testified directly and unequivocally that he worked around painters or drywall finishers while they were sanding and performing the other tasks described in his deposition. See Videotaped Deposition of James H. Martin, Jan. 30, 2004, attached as Exhibit G to Plaintiffs’ Response to Georgia-Pacific LLC’s No-Evidence Motion for Summary Judgment, at 53:2-21; 90:3-91:12; 101:24-102:9. The relevant deposition testimony from Mr. Martin and his co-workers is set out in the Plaintiffs’ summary judgment response, which is incorporated by reference. To the extent that Georgia-Pacific disputes the weight or credibility of this underlying testimony, those issues should be resolved by the jury.

Dr. Longo Uses a Reliable Scientific Methodology.

Georgia-Pacific asserts that Dr. Longo’s methods have never been tested, subjected to peer review or otherwise validated by the relevant scientific community. These complaints have no factual basis. As this Court has previously held, “the opinions expressed by Dr. Longo are within published and peer-reviewed and mainstream scientific opinion and otherwise complies with the Daubert and Robinson tests.” Transcript dated Oct. 4, 2006, supra, at 10. As explained in Dr. Longo’s affidavit, the results of his joint compound studies have been corroborated repeatedly in published studies. See Longo Affidavit at ¶¶ 23-25 (citing studies by Verma and Middleton, Fischbien, et al.). The methods used in Dr. Longo’s own joint compound studies parallel those used in the gasket studies, which have been published in the peer-reviewed literature. See See Longo, et al., Fiber Release During the Removal of Asbestos-Containing Gaskets: A Work Practice Simulation, Applied Occup. & Envtl. Hygiene J. 17:55 (2002).

Contrary to Georgia-Pacific’s contention, studies of asbestos exposure in different settings are useful in evaluating the range of exposures associated with different uses of a product. No study will replicate all of the conditions of an individual’s exposure, but such differences do not render the testimony inadmissible. Experiments conducted under different conditions are admissible if the differences are “subject to explanation.” City of Dallas v. Cox, 793 S.W.2d 701, 734 (Tex. App. – Dallas 1990, no writ); see also University of Texas v. Hinton, 822 S.W.2d 197, 203 (Tex.App. – Austin 1991, no pet.) (“conditions of the occurrence and experiment need not be identical,” particularly “if the differences are explained to the jury.”) (emphasis in original).

As a general rule, discrepancies between the experiment and the event at issue go to the weight of the evidence rather than its admissibility. See Sosa v. Koshy, 961 S.W.2d 420, 430 (Tex. App. – Houston [1st Dist.] 1997, pet. denied). Accordingly, cross-examination and counter-evidence, not exclusion, are the appropriate means for a defendant to address evidence it believes has little probative weight or poses a risk of confusing the jury. Id.; see also Garza v. Cole, 753 S.W.2d 245, 248 (Tex. App. – Houston [14th Dist.] 1987, writ ref’d n.r.e.) (admission of videotaped experiment was not reversible error when witness was throughly questioned “about the dissimilarities in the video experiment,” evidence was supplemented by other witnesses and “the jury was able to evaluate and place this evidence in proper perspective.”).

Dr. Dikman Is Qualified to Testify on Exposure as It Relates to Medical Causation.

Georgia-Pacific argues that Dr. Dikman is not qualified to testify about “dose” from an industrial hygiene perspective. Amended Motion at 29. Dr. Dikman has never claimed to be an industrial hygienist, nor is such expertise necessary to his testimony. As a pathologist, he relies on the occupational history and the opinions of other experts such as Dr. Longo in assessing an individual’s potential exposure to toxic substances. It is entirely appropriate for medical experts to rely on such information in evaluating the cause of an injury. See LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 479 (Tex. App. – Houston [1st Dist.] 2007, pet. denied). Dr. Dikman’s causation opinions are within the scope of his expertise.

Dr. Dikman’s Opinions Are Relevant.

Georgia-Pacific’s objections to the relevance of Dr. Dikman’s testimony seem to revolve around three semantic disputes: “patching compound” vs. “joint compound,” “dose” vs. “exposure,” and “significant” vs. “substantial.” None of these arguments have any meaningful basis.

  • “Patching compound” vs. “joint compound”

Georgia-Pacific devotes an inordinate amount of attention to Dr. Dikman’s use of the generic term “patching compound” to encompass both joint compounds and texture products. See Amended Motion at 6, 31-32. Dr. Dikman explains in his affidavit that the term “patching compound” includes joint compound. Affidavit of Steven H. Dikman, M.D. (“Dikman Affidavit”), attached as Exhibit D to Plaintiffs’ Response to Georgia-Pacific LLC’s No-Evidence Motion for Summary Judgment, at ¶ 7. After detailing the evidence related to Mr. Martin’s exposure to asbestos from joint compounds, Dr. Dikman again uses the general term “patching compound” in summarizing his conclusions. See id. at 11. No reasonable person could possibly be confused by Dr. Dikman’s terminology, and it certainly does not constitute a basis for excluding his testimony.

  • “Dose” vs. “exposure”

Georgia-Pacific maintains that this Court may not admit expert testimony about “‘exposure’ to an asbestos-containing product as opposed to quantifiable ‘dose’ as required by Borg-Warner and Stephens.” Georgia-Pacific never cites a single page of legal authority for this position, and none exists. In Borg-Warner, the supreme court cited Havner for the proposition that studies may be relevant to causation if the plaintiff’s “exposure or dose levels were comparable to or greater than those in the studies.” Borg-Warner at 9 (emphasis added). The substantive legal requirement is that “the exposure be a ‘substantial factor’ in causing the disease.” Id. at 7 (emphasis added). The court’s discussion of causation repeatedly and deliberately uses the term “exposure” as well as “dose.”

In answering the question “What is a dose?,” this Court observed that “the Supreme Court’s opinion suggests, but does not explicitly state, that a Plaintiff must show the ‘approximate dose to which the plaintiff was exposed’ . . . I am going to take the Court at its literal word of ‘exposure’ rather than ‘inhalation.’” Order dated July 18, 2007, supra, at 4-5. Following the framework set out in Borg- Warner, it is entirely correct for experts to frame their discussion in terms of a plaintiff’s exposure. In this case, the “approximate dose” associated with exposure to Georgia-Pacific products can reasonably be considered a substantial factor in causing Mr. Martin’s asbestos-related cancer.

  • “Significant” vs. “substantial”

Continuing its obsession with semantics, Georgia-Pacific complains that Dr. Dikman uses the word “significant” rather than “substantial” in describing the contribution of Georgia-Pacific joint compound to Mr. Martin’s disease. Amended Motion at 6, 32. It is well settled that the admissibility of an expert’s opinion is determined by its substance and “does not turn on semantics or on the use of a particular term or phrase.” See LMC Complete Automotive, 229 S.W.3d at 478.

As explained by the court in Borg-Warner, 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, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Borg Warner at 8. Any reasonable person considering the substance of Dr. Dikman’s testimony would find it relevant to that inquiry. To the extent that Georgia-Pacific remains confused by Dr. Dikman’s choice of adjectives, such questions should be addressed in cross-examination, as they have no bearing whatsoever on the relevance or admissibility of Dr. Dikman’s testimony.

Dr. Dikman’s Opinions Have a Reliable Scientific Basis.

In addition to the factual disputes which have been addressed above in connection with Dr. Longo’s testimony, Georgia-Pacific asserts that Dr. Dikman’s causation opinions are “unreliable because they are not based on any epidemiological studies.” Amended Motion at 38. The assertion is both inaccurate and ultimately irrelevant. Dr. Dikman relies on a number of relevant epidemiological studies assessing the levels of asbestos exposures sufficient to cause mesothelioma. See Dikman Affidavit at ¶ 8. These studies have documented statistically significant increases in mesothelioma risk among cohorts exposed to cumulative levels of asbestos comparable to Mr. Martin’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 5 to Dikman Affidavit, at 139 (Table 5) (reporting four-fold increase in mesothelioma risk for intermittent exposures between 0.5 and 0.99 fiber-years).

Georgia-Pacific argues that Dr. Dikman cannot rely on such studies because “they are not substantially similar to Mr. Martin’s work as an alleged bystander to joint compound work on commercial construction sites.” Amended Motion at 38. This objection reflects a misunderstanding of epidemiology. Epidemiologists study exposures to toxic substances in a variety of settings. An epidemiological study of a substance is relevant to the extent that the “exposure or dose levels were comparable.” Borg Warner at 9. The risk of mesothelioma is a function of exposure, not job classification.

The summary judgment evidence establishes that Mr. Martin’s exposures are in fact comparable to the levels of asbestos exposure found to cause mesothelioma in the relevant epidemiological studies. Dr. Dikman therefore has a valid epidemiological basis for his conclusion that exposure to asbestos from Georgia-Pacific products contributed significantly to Mr. Martin’s disease.

In any event, Georgia-Pacific is incorrect in asserting that epidemiological studies are a prerequisite to admissibility. In its ruling on the admissibility of evidence that chrysotile asbestos causes mesothelioma, this Court observed that expert testimony based on studies of cell biology was “sufficient evidence, even without epidemiological evidence discussed above, for proof of general causation.” In Borg-Warner, the supreme court reaffirmed that epidemiological studies are “not necessary to prove causation” in a toxic tort case. Borg-Warner at 11. Even without the epidemiological studies identified in Dr. Dikman’s affidavit, his opinions as to causation are supported by an extensive body of scientific literature correlating low-dose asbestos exposures and mesothelioma. See id. at 10 (noting that “it is generally accepted that one may develop mesothelioma from low levels of asbestos exposure”).


Plaintiffs respectfully request that Georgia-Pacific’s motion to exclude the expert testimony of Dr. Longo and Dr. Dikman be denied.

Respectfully submitted,