Shrinking Daubert In Delaware - Who Needs Epidemiology DD-09/06

Defense Digest

Delaware - Product Liability
Shrinking Daubert In Delaware - Who Needs Epidemiology?

Delaware has recently become a hotbed for asbestos filings. Prior to May 2005, two firms – one local and the other a Peter Angelos branch office – had filed the vast majority of asbestos personal injury claims in the First State, primarily on behalf of Delaware residents. The number of new cases filed typically averaged 100 a year. In 2004, 77 new asbestos cases were filed. Moreover, in the ten years from 1995 to 2004, less than 100 mesothelioma claims had been filed. However, beginning in May 2005, the Baron & Budd firm from Texas has filed over 100 cases, and Simmons Cooper, from Illinois, has filed in excess of 75 cases. Significantly, all of these cases are meso claims on behalf of plaintiffs from all over the United States, and even one claimant from Saudi Arabia. Several defendants filed motions to dismiss on the grounds of forum non conveniens. Judge Joseph Slights of the Delaware Superior Court, who administers the asbestos litigation here, denied those motions in all cases except where the plaintiff had pending in another jurisdiction the identical claim, which was more likely to be resolved there before it would reach trial in Delaware. Thus, these new meso cases appear to be here to stay.

Against this backdrop, Judge Slights recently denied a Daubert motion filed by DaimlerChrysler Corporation seeking to exclude the plaintiffs' expert testimony that friction products cause asbestos-related diseases, including mesothelioma. In the context of this motion, DaimlerChrysler presented testimony from its expert that settled epidemiological evidence conclusively proves that exposure to automotive friction products does not increase the risk of asbestos-related diseases. On the other hand, plaintiffs introduced the testimony of four experts, including an epidemiologist, to prove the issue of general causation that friction products do increase that risk. None of those experts relied on epidemiology, and, in fact, most acknowledged that the epidemiological studies that do exist, while flawed in these experts' opinions, support DaimlerChrysler's proposition. In his 74-page opinion, Judge Slights rejects the notion that epidemiology trumps all other forms of scientific evidence and found the opinions of all four plaintiffs' experts reliable according to Daubert standards.

The Delaware Supreme Court specifically adopted Daubert in 1999. M.G. Bancorporation v. Le Beau, 737 A.2d 513 (Del. 1999). The Court subsequently outlined a five-part test for the admissibility of expert testimony: (1) the witness is qualified by knowledge, skill, experience, training or education; (2) the evidence is relevant and reliable; (3) the expert's opinion is based on information reasonably relied upon by experts in the particular field; (4) the expert testimony will assist the trier of fact; and (5) the expert testimony will not create unfair prejudice or confuse or mislead the jury. Eskin v. Carden, 842 A.2d 1222 (Del.2004). In assessing the reliability of expert opinions, there are four non-exclusive factors the trial court may consider: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community. Daubert, 509 U.S. 579, 590 (1993).

A prior decision of Delaware's Superior Court considered whether epidemiological studies were necessary as a threshold for admitting an expert's opinion on causation. In Long v. Weider Nutrition Group, Inc., 2004 WL 1543226 (Del. Super. June 25, 2004), the decedent had consumed two bottles of a dietary supplement containing ephedrine and caffeine four to six days a week for approximately six months before he suffered sudden cardiac death. The plaintiff presented the testimony of three experts in the fields of pathology, toxicology and cardiology, all of whom opined as a matter of general causation that ephedrine has the potential to cause serious or fatal adverse cardiovascular effects and specifically that the decedent's use of this supplement containing ephedrine caused his death. All three experts conceded that they relied on clinical studies and case reports and that no epidemiological study on this subject existed. Epidemiology is the branch of medicine that studies the distribution and determinants of disease in populations. The defendants presented the testimony of two epidemiologists, who stated that, because there exists no scientific study using generally recognized epidemiological methodology that shows what percentage of the general population has any adverse reaction to a dietary supplement containing ephedrine and caffeine, the plaintiff cannot prove either generally that this type of supplement causes adverse cardiac conditions or specifically that it caused the decedent's death. The court recognized that other jurisdictions were split as to whether epidemiology was necessary for admitting an expert's opinions on causation. Ultimately, the trial judge rejected the proposition that the testimony of a qualified expert on the causal link between an allegedly toxic substance and injury is not admissible in the absence of epidemiological studies.

2004 WL 1543226, p. 5.

DaimlerChrysler's Daubert motion was filed in the first group of these new meso cases set for trial and was narrowly drawn. The only issue before the court was one of general causation: whether the plaintiffs had met their burden to demonstrate that their experts' opinions on friction products' causation were sufficiently reliable to be presented to the jury. Both sides agree that the friction products at issue contained chrysotile asbestos fibers and that chrysotile asbestos causes disease. DaimlerChrysler contended that after the manufacturing process and after use, the chrysotile in its friction products are not hazardous. The plaintiffs disagreed and asserted that the hazardous nature of chrysotile has not changed. DaimlerChrysler presented what it described as settled epidemiological evidence that exposure to its friction products does not increase the risk of disease. The plaintiffs introduced the testimony of four experts, none of whom relied on epidemiological evidence. The issue the court faced was different than in Long, where no epidemiological studies existed. Here, the court had to decide whether the plaintiffs' expert testimony was reliable when contradicted by epidemiological evidence.

The court ultimately decided that the opinions of the plaintiffs' experts were reliable for two reasons. First, the court ruled that these experts relied upon sound scientific data to opine that DaimlerChrysler's friction products contained chrysotile asbestos fibers and that, under certain circumstances, they release chrysotile fibers that can be inhaled and which can cause disease. Secondly, the court held that while some jurisdictions require epidemiology to establish causation, the better and more practical approach is the opposite, namely, epidemiology is not necessary. Both sides cited Long as support for their position. DaimlerChrysler argued that Long requires epidemiological evidence unless the expert offers a differential diagnosis where all other possible causes have been ruled out to a reasonable degree of medical certainty. Judge Slights disagreed, ruling that Delaware law does not require epidemiological evidence to constitute the entirety, or even a part, of the basis for the expert's opinion, regardless of whether that expert can exclude all other potential causes. Once the court rejected the argument that epidemiological evidence trumps all other evidence, it examined the opinions expressed by the plaintiffs' experts that DaimlerChrysler's epidemiological evidence was not undisputed but, rather, in their opinion, was equivocal, had defects that weakened the reliability of their conclusions, and were less compelling when the disease in question, such as mesothelioma, was rare. Accordingly, the court ruled that the opinions expressed by the plaintiffs' experts were reliable and denied DaimlerChrysler's motion.

The court noted that Michigan (Chapin v. A&L Auto Parts, Inc., Case No. 03-3247775-NP(Mich. 3d Cir. Ct., May 28, 2004)) and New York (Breidenstein v. Allied Signal, Inc., Case No. 2004-11581(N.Y. Sup. Ct. Sept. 2005)) reached the same conclusion, whereas Texas (In Re: Asbestos Litigation, No. 2004-03964 (Tex. Dist. Ct. June 30, 2005)) and Pennsylvania (In Re: Toxic Substance Cases, Admin. Docket No. 03-319 (Pa. Ct. Com. Pleas, Allegheny Cty., Feb. 27, 2006)) disagreed. DaimlerChrysler requested Judge Slights to certify the issue for interlocutory appeal, but he denied that request. Whether the Delaware Supreme Court ever reaches this issue remains to be seen. However, the Delaware trial court has now had two opportunities to redirect this new flood of asbestos filings away from its borders. By denying the defendants' motions to dismiss and DaimlerChrysler's Daubert motion, the court has not erected any roadblocks to prevent more asbestos and other mass tort filings.

*Armand is a shareholder in our Wilmington, DE office. He can be reached at (302) 552-4323 or ajdellaporta@mdwcg.com.