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Bobo v. Tennessee Valley Authority

United States District Court, N.D. Alabama, Northeastern Division

August 25, 2014

MELISSA ANN BOBO and SHARON JEAN COX, as Co-Personal Representatives of the Estate of Barbara Bobo, Plaintiffs,


LYNWOOD SMITH, Jr., District Judge.

Barbara Bobo commenced this action against nine defendants.[1] Eight of those were dismissed pursuant to stipulations for dismissal, [2] leaving only her claims against the Tennessee Valley Authority ("TVA"). Plaintiffs, who are the co-personal representatives of the estate of Mrs. Bobo, [3] maintain a variety of claims against TVA based on Mrs. Bobo's contraction of pleural mesothelioma from laundering her husband's work clothes, purportedly containing asbestos dust originating from his job duties at TVA's Browns Ferry Nuclear power general facility in Limestone County, Alabama. The action is presently before the court on TVA's motions to exclude the specific causation opinions of Doctors Virginia Wells Wulsin and Eugene Mark.[4] For the following reasons, the motion to exclude the specific causation opinion of Dr. Victoria Wulsin is MOOT, and the motion to exclude the specific causation opinion of Dr. Eugene Mark is DENIED.

I. Motion to Exclude the Testimony of Dr. Virginia Wells Wulsin

TVA contends that the testimony of Dr. Virginia Wells Wulsin should be excluded because she failed to consider other potential exposure sources, and she "fail[ed] to bridge the analytical gap" between her opinions in this case and the scientific evidence upon which she relied.[5] In response, plaintiffs state that they have "elected not to offer any specific causation testimony from Dr. Wulsin."[6] Rather, plaintiffs assert that Dr. Wulsin will only testify concerning issues of general causation, including the topics of the relevant epidemiological literature, state of the art, public health, and regulatory matters.[7] Based upon plaintiffs' certification that Dr. Wulsin "will not testify that Barbara Bobo's mesothelioma was specifically caused by her exposure to asbestos originating at TVA, "[8] the court finds TVA's motion to exclude Dr. Wulsin's specific causation opinion moot.

II. Motion to Exclude the Testimony of Dr. Eugene Mark

TVA next argues that Dr. Eugene Mark's testimony should be excluded on the grounds that his "every exposure" or "single fiber" causation theory lacks a reliable scientific foundation, and that he failed to sufficiently connect his opinions in this case to the scientific evidence upon which he relied.[9]

Federal Rule of Evidence 702 provides that:

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. That rule compels district courts to "conduct an exacting analysis of the foundations of the expert opinions to ensure they meet the standards for admissibility under Rule 702." United States v. Abreu, 406 F.3d 1304, 1306 (11th Cir. 2005) (quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (internal quotation mark and emphasis omitted)).

[T]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (alteration supplied). "The inquiry... is a flexible one, " because "[m]any factors will bear on the inquiry, and... [there is no] definitive checklist or test." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993) (alterations supplied). Factors that may be relevant include:

(1) whether the theory or technique can be (and has been) tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) in the case of a particular... technique, the known or potential rate of error, and (4) whether the theory or technique is generally accepted by the relevant... community.

Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th Cir. 2010) (internal quotation marks and alterations omitted).[10]

1. Dr. Mark's background and qualifications

Dr. Mark obtained his medical degree from Harvard Medical School in Boston, Massachusetts.[11] He completed a one-year internship in internal medicine at Stanford University Medical Center in Palo Alto, California, and four years of residency in anatomic and clinical pathology at Massachusetts General Hospital in Boston, Massachusetts.[12] Dr. Mark is licensed to practice medicine in Massachusetts, and is board-certified in pathologic anatomy, clinical pathology, and dermatopathology.[13] He is currently a physician and a pathologist at Massachusetts General Hospital.[14]

The pathology department of Massachusetts General Hospital receives numerous lung biopsies every day because of the medical, surgical, oncology, and lung transplant services provided.[15] As director of the lung pathology service, Dr. Mark primarily receives, and then examines, biopsies of lung tissue.[16] In the course of his career, Dr. Mark has diagnosed or reviewed a few thousand cases for the presence of an asbestos-related disease.[17]

Dr. Mark is also a professor of pathology at Harvard Medical School.[18] He leads classes at a variety of levels, including training medical students, physicians, and nurses.[19] Further, Dr. Mark is a District Medical Examiner for the Commonwealth of Massachusetts.[20] He has also served on the editorial boards for various professional medical journals, including Human Pathology, International Journal of Pathology, Archives of Pathology and Laboratory Medicine, and American Journal of Industrial Medicine. [21] In addition, he has authored two books and published more than 150 original articles and 300 case records in the New England Journal of Medicine. [22] Many of those publications addressed diffuse malignant mesothelioma and its causes.[23]

Finally, Dr. Mark is the senior director of an annual week-long pathology course that is attended by pathologists from around the world.[24] The syllabus for that course includes many facets of surgical pathology, including ...

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