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Jackson v. Colgate-Palmolive Co.

United States District Court, District of Columbia

August 6, 2019

BRIAN JACKSON, Individually, and as Personal Representative of the Estate of Doris Jackson, Deceased, Plaintiff,
v.
COLGATE-PALMOLIVE COMPANY, Defendant.

          MEMORANDUM OPINION

          THOMAS F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         In this products liability action, Plaintiff alleges that his mother developed mesothelioma due to asbestos exposure from her decades-long use of Cashmere Bouquet talcum powder, which was manufactured, marketed, and/or sold by Defendant Colgate-Palmolive Company (“Colgate”) from 1871 through 1995. Plaintiff asserts causes of action against Colgate for negligence, strict liability, breach of implied warranty, wrongful death, and punitive damages. Am. Compl. [ECF No. 24].[1] Plaintiff has proffered Dr. Ronald Gordon, a pathologist and microscopist with a Ph.D. in biology and experimental pathology, as an expert to testify regarding his testing and analysis of various samples of Cashmere Bouquet-labeled talcum powder, as well as his analysis and opinions concerning Ms. Jackson's lung and lymph node tissue.

         Presently pending before the Court are Colgate-Palmolive Company's Daubert Motion to Exclude Testimony of Plaintiff's Expert Dr. Ronald Gordon (“Daubert Motion”) [ECF No. 49], Colgate-Palmolive Company's Motion in Limine to Preclude All Testimony and Evidence Regarding Purported Testing of Talc by Plaintiff's Testing Experts Because of Lack of Authenticity and Relevance of Talc Tested (“Colgate's Motion in Limine”) [ECF No. 45], [2] and Plaintiff's Motion in Limine to Exclude Any Reference to Dr. Ronald Gordon's Criminal History and Related Matters (“Plaintiff's Motion in Limine”) [ECF No. 55]. Upon full consideration of the parties' submissions, the oral arguments held on February 13, 2017 and March 1, 2017, the record in this case, and the applicable law, and for the reasons stated herein, the Court grants Colgate's Daubert Motion; grants in part and denies in part Colgate's Motion in Limine; and finds as moot Plaintiff's Motion in Limine.

         II. DAUBERT MOTION

         Colgate seeks exclusion of Dr. Gordon's opinions that (1) he detected asbestos in every Cashmere Bouquet-labeled talc sample he tested, and (2) Ms. Jackson's lymph node tissue contained the same type of asbestos he found in the talc and that the asbestos in the talc therefore caused Ms. Jackson's mesothelioma. Daubert Mot. 1 [ECF No. 49]. Colgate argues that Dr. Gordon's opinions are unreliable and should be excluded pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).

         a. Legal Standard for Admissibility of Expert Testimony

         A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. “The party offering the expert's testimony must establish by a preponderance of the evidence that the expert testimony is admissible. . . .” McReynolds v. Sodexho Marriott Servs., Inc., 349 F.Supp.2d 30, 35 (D.D.C. 2004); see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (“[T]he proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable”). Under Rule 702, “[a] district judge has broad discretion regarding the admission or exclusion of expert testimony, and reversal of a decision . . . is appropriate only when that discretion has been abused.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567 (D.C. Cir. 1993).

         In Daubert v. Merrell Dow Pharm., Inc., the Supreme Court explained that in applying Rule 702, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. 579, 589 (1993). Expert testimony may not be based on “subjective belief and unsupported speculation, ” and instead must be “ground[ed] in the methods and procedures of science.” Id. at 590. The Daubert court set forth a non-exclusive list of factors that courts may consider when evaluating scientific validity: “whether the theory or technique had been tested, whether it had been subjected to peer review and publication, the method's known or potential error rate, and the method's general acceptance in the scientific community.” Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1127 (D.C. Cir. 2001) (citing Daubert, 509 U.S. at 593-94). “[N]one of the factors discussed is necessarily applicable in every case or dispositive; nor are the four factors exhaustive.” Ambrosini v. Labarraque, 101 F.3d 129, 134 (D.C. Cir. 1996).

         But Daubert does not require that “judges become scientific experts, much less evaluators of the persuasiveness of an expert's conclusions.” Id. Instead, courts are to focus on experts' “principles and methodology, not on the conclusions they generate.” Daubert, 509 U.S. at 595.

         b. Dr. Gordon's Qualifications

         Dr. Gordon holds a doctorate with a focus on experimental pathology and biology from State University of New York, Stony Brook. Daubert Hr'g Tr. 4:5-4:6, Feb. 13, 2017 [ECF No. 86]. He is the director of the Electron Microscopy Core Facility in Pathology at Mount Sinai Hospital in New York City and also serves as a director for parts of the Mount Sinai Health System. Id. at 4:17-4:24. As part of his employment, Dr. Gordon performs clinical diagnoses in the Department of Pathology, conducts his own research, conducts collaborative research, and teaches pathology and electron microscopy. Id. He has worked with an electron microscope since 1972 and has published approximately 200 peer-reviewed papers. Id. at 6:17-6:22, 10:15-10:18. Dr. Gordon has used the same base methodology at issue here to test, inter alia, human tissue, floor tiles, drywall, auto v-belts, brakes, theater curtains, body filler, insulation, talcum powders, and cosmetics for the presence of asbestos. Id. at 19:21-20:5.

         c. Asbestos Detection Methods

         Asbestos is defined as the asbestiform variety of the following six naturally occurring minerals: chrysotile, crocidolite, amosite, tremolite, anthophyllite, and actinolite. Occupational Exposure to Asbestos, Tremolite, Anthophyllite and Actinolite, 57 Fed. Reg. 24310-01, 24316 (June 8, 1992); see also 29 C.F.R. § 1910.1001; 40 C.F.R. § 763.163. “Chrysotile belongs to the family of minerals called serpentine minerals. The remaining five minerals belong to the family of minerals called amphiboles.” 57 Fed. Reg. at 24316.

         Dr. Gordon has reported finding anthophyllite asbestos in all of the containers of Cashmere Bouquet-labeled talc he tested, “with many also containing tremolite asbestos and some even containing chrysotile type asbestos.” Gordon Rep. 5 [ECF 58-3]. Dr. Gordon also reported finding tremolite asbestos fibers in Ms. Jackson's lymph node tissue. Id. at 23. A brief overview of several asbestos detection methods is instructive.

         i. The United States Pharmacopeia Method

         The Food and Drug Administration (“FDA”) regulates the use of talc in cosmetics and utilizes the United States Pharmacopeia (“USP”) method when testing talc for the presence of asbestos. See 21 U.S.C. § 321(i); 21 C.F.R. § 73.1550(b). As it is important to distinguish asbestos from a cleavage fragment, talc, or an accessory mineral, the USP method first requires an analyst to perform infrared absorption or x-ray diffraction (“XRD”) on a sample of talc. USP Monograph 4826-27 [ECF No. 49-25]. If either test is positive, the analyst then proceeds to analyze the sample using a polarized light microscope (“PLM”) to determine if it contains a population of fibers with the following asbestiform characteristics:

1) a range of length to width ratios of 20:1 to 100:1, or higher for fibers longer than 5 µm;
2) capability of splitting into very thin fibrils; and
3) two or more of the following criteria:
(i) parallel fibers occurring in bundles;
(ii) fiber bundles displaying frayed ends;
(iii) fibers in the form of thin needles; and
(iv) matted masses of individual fibers and/or fibers showing curvature.

Id.

         Dr. Gordon challenges the USP method because he believes it is unreliable and can lead to potential false negative results. Daubert Hr'g Tr. at 54:23-55:20; 57:14-16, Feb. 13, 2007 [ECF No. 86]. Accordingly, Dr. Gordon did not use the USP method when testing the Cashmere Bouquet-labeled talc; instead, he performed his testing using a modified version of a method developed by George Yamate, et al., as set forth in Methodology for the Measurement of Airborne Asbestos by Electron Microscopy (“Yamate Method”) [ECF No. 49-34].

         ii. The Yamate Method

         The Yamate Method contains three different levels of analysis, and each level involves examining a sample using an electron microscope. Id. at 5. Prior to testing, a sample is prepared and placed on an electron microscope grid. Id. The “counting rule” of the Yamate Method is a “minimum 100 fibrous structures per known area (complete grid opening) or 10 grid openings, whichever is first.” Id. But “[f]or very low asbestos presence, or for asbestos contamination studies . . . counting 20 grid openings from each of 2 grids (10 per grid) is recommended.” Id.

Knowledge of the history, source and location of the sample, and the purpose and objective of the analysis aids in selecting the correct level of analytical effort. Simply “grinding the samples out” neither is cost-effective nor produces the best results, especially for Level II and Level III analyses. Instead of all Level I, all Level II, or all Level III, the majority of the analyses may be Level I, followed by some Level II. Level III could be used in its entirety or only at the analytical phase. If the source is known to contain no amphibole-type interference, or if chrysotile is of interest, gold-coating can be eliminated.
If a legal proceeding is anticipated, Level III analysis will be required where a chain-of-custody record is kept from collection, transport to the laboratory, preparation, analysis, data reduction, and reporting of results. EM [electron microscope] finder grids must be used for grid transfer. In addition, for quality assurance, a second laboratory must be available for analyzing a portion of the sample using the same degree of custodial care. QC/QA [quality control/quality assurance] protocols must be observed and records kept.
Whenever possible, and especially for unknown source samples, 10 to 20% of each set of samples should be analyzed by Level II analysis prior to using Level I as a screening procedure.
Level I is a relatively rapid procedure, and can be used by many laboratories with access to conventional TEM [transmission electron microscopy]. However, Level I results should not be used in legal proceedings. If “positives” or “false positives” are found, especially in areas where asbestos is known to be absent, and the field blank and laboratory blank have been checked, Level II analysis, and possibly Level III analysis, should be performed.

Id. All three levels of analysis require data to “be recorded in a systematic form so that they can be processed rapidly. Sample information, instrument parameters, and the sequence of operations should be tabulated for ease in data reduction and subsequent reporting of results.” Id. at 21, 38.

         1) Level I

         Level I analysis “is a monitoring or screening technique” that utilizes morphology and selected area electron diffraction (“SAED”) to analyze samples. Id. at 8, 17. For the morphology analysis, “a grid opening is selected at random” and is examined with an electron microscope to determine whether an asbestos structure is located within the opening.” Id. at 19-20.[3] The analyst then performs SAED analysis to determine the pattern of the asbestos structure and classify it as chrysotile, amphibole group, ambiguous, or “no identification.” Id.

         2) Level II

         Level II analysis “is a regulatory technique consisting of Level I analysis plus chemical elemental analysis. Morphology, size, SAED pattern, and chemical analysis are performed sequentially.” Id. at 24. The chemical analysis is performed using energy dispersive spectroscopy (“EDS”), which obtains “a spectrum of the x-rays generated by the asbestos structure. The profile of the spectrum is compared with profiles obtained from asbestos standards; the best (closest) match identifies and categorizes the structure.” Id. at 37. Because “[a]sbestos has a varying elemental composition, ” EDS as used in asbestos analysis is “semiquantitative at best.” Id. at 39.

         3) Level III

         Level III analysis “is an objective, confirmatory-type analysis and consists of Level II analysis plus quantitative SAED analysis from two different near-exact zone-axis orientations on a selected number of fibers identified for detailed SAED analysis during the course of Level II analysis.” Id. at 44. The Yamate Method requires Level III analysis where legal proceedings are anticipated. Id. at 5. Zone-axis tilting physically tilts the fiber under the electron microscope to allow the analyst to obtain another view of the diffraction pattern for further evaluation and confidence: “[t]he primary emphasis in Level III analysis is on the positive identification of the amphibole type.” Id. at 45.

         4) Criteria for Selecting the Correct Level of Analysis

         The Yamate Method sets forth the following criteria to be considered in selecting the correct level of analysis:

Knowledge of the history, source and location of the sample, and the purpose and objective of the analysis aids in selecting the correct level of analytical effort. Simply “grinding the samples out” neither is cost-effective nor produces the best results, especially for Level II and Level III analyses. Instead of all Level I, all Level II, or all Level III, the majority of the analyses may be Level I, followed by some Level II. Level III could be used in its entirety or only at the analytical phase. If ...

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