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1 Pretrial Motions Practic: Or How to Win Without Really Trying Your Case, That Is! F. Ford Loker Miles & Stockbridge P.C. 100 Light Street Baltimore, MD (410)

2 F. Ford Loker is a shareholder at Miles & Stockbridge s Baltimore office. He has been a trial lawyer for over 40 years, maintaining a general litigation practice, primarily in mass torts, products liability, and health insurance claims and coverage. He has represented a wide variety of defendants in asbestos litigation since 1981, trying dozens of jury trials to verdict. He has briefed and argued over 60 reported appeals, including the 1986 seminal case on substantial causation, Lohrmann v. Pittsburgh Corning Corp. Before entering private practice, Mr. Loker was a prosecutor in the State s Attorney Office of Baltimore City and in the Criminal Appeals and Investigations Section of the Maryland Attorney General s Office. Mr. Loker has written and lectured extensively on trial tactics, appellate advocacy and asbestos medicine. NOTE: The statements and opinions expressed and any legal positions asserted in this paper are those solely of the author and do not necessarily reflect those of Miles & Stockbridge P.C., its other attorneys and its clients.

3 Pretrial Motions Practic: Or How to Win Without Really Trying Your Case, That Is! Table of Contents I. Introduction II. Bare Metal Defense A. As a Motion for Summary Judgment B. Summary of Cases Recognizing Bare Metal Defense III. Challenging the Expert Before Trial A. Motion in Limine to Exclude Expert Testimony Strategic Considerations in the Timing of the Motion in Limine Preservation of Ruling on Motion for Appellate Review Motion Denied Motion Granted B. Motions in Limine Under the Frye Standard C. Motions in Limine Under the Daubert Standard D. Reliability Factors Under Daubert IV. Trends in Excluding Opinion Evidence on Causation A. General Overview B. Summary of Cases Under Frye Standard C. Summary of Cases Under Daubert Standard V. Motions in Limine Specifically in Friction Cases A. Introduction to Common Friction Motions in Limine Malignant Mesothelioma Chrysotile Asbestos Background Levels of Asbestos Opinions to Be Stricken Under Frye/Daubert B. Opinion Linking Exposure to Cause of Disease Requires Scientific Method That Crosses Threshold of Reliability Every Exposure Theory Driven By Litigation, Not Medicine Many Jurisdictions Strike Every Exposure Opinions C. The Every Exposure Theory Is Contrary to Medical Evidence on Causation of Mesothelioma Epidemiological Studies of Brake Mechanics and Mesothelioma Consistently Show No Increased Risk of Disease Epidemiological Findings Are Consistent With Nature of Chrysotile Fibers Found in Brakes and Low Dose Exposures From Brake Jobs Pathological Findings From Lung Tissue of Brake Workers Are Consistent with Epidemiological Studies Showing No Increased Risk of Mesothelioma D. Relief Sought in Motion in Limine Based on Every Exposure Opinions VI. Conclusion Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 925

4 VIII. Appendix...958

5 Pretrial Motions Practic: Or How to Win Without Really Trying Your Case, That Is! I. Introduction This paper focuses on pretrial motions which may eliminate a jury trial altogether. The narrow topic of this break-out section of the Asbestos Medicine Seminar is devoted to automotive friction materials, but this paper reaches wider to include the Bare Metal Defense, and Motions in Limine generally. The Motion in Limine as to the Single Fiber or Every Fiber fallacies in medical causation is treated in great detail and may serve as a model for an actual motion. The Bare Metal Defense applies to a wide group of products and equipment, such as pumps and valves on ships, turbines and boilers in power plants and of course, automotive repairs and maintenance. Bare Metal is particularly fact-driven, which highlights the importance of comprehensive depositions of plaintiffs and their product identification fact witnesses. Taking that deposition is not covered in this paper. Likewise trial may be avoided if plaintiffs medical causation expert is stricken by a Motion in Limine based on the Daubert or Frye standards. Once a court bars plainitff s experts espousing the single fiber theory of medical causation, where every exposure is deemed to be its own substantial contributing factor in the development of the asbestos-related condition at hand, plaintiff s case may well crumble. Strategies definitely will vary from jurisdiction to jurisdiction, from trial to trial, and even from client to client. However, certain core principles apply. The practitioner is responsible for modifying the general notions in this paper to meet the unique facts and laws governing an individual matter. In asbestos litigation, it is difficult to imagine the case that allows plaintiff to meet the burden of proof of causation without calling expert witnesses. This is true whether the trial is before a judge sitting without a jury or in a jury trial. So too, most technical defenses require medical and scientific expert witnesses to rebut plaintiff s theories. Because virtually every case can benefit from expert testimony, every litigator should anticipate that his adversary also will try to eliminate his experts. Knowing how to attack the opponent s experts teaches defense lawyers how to protect theirs. II. Bare Metal Defense A. As a Motion for Summary Judgment The Bare Metal Defense in automobile friction cases, a term coined by judges, actually is a misnomer. A better title for it might be the Replacement Parts Liability Doctrine. The doctrine is not an affirmative defense, in the sense that a defendant does not assume the burden of disproving plaintiff s theory of the case. Plaintiff maintains the burden of proving each and every element of his causes of action, including which entity is liable for which asbestos-containing product. Bare Metal is an argument raised in a defendant s summary judgment motion, challenging whether plaintiff has borne his burden of proving that defendant is liable for the claimed exposure to asbestos from a replacement part which it did not manufacture or supply. It obviously is limited to facts where the product identification evidence points to an after-market automotive friction product, such as a brake pad, engine gasket or clutch facing, not made or supplied by the manufacturer of the vehicle. It would not apply to allegations of a plaintiff being exposed to the original parts on the vehicle or replacement parts made or supplied by the original equipment parts maker so called OEM parts. Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 927

6 The Maryland case of Ford Motor Co. v. Wood, 119 Md. App. 1 (1998), cert. denied, 394 Md. 494 (1998), overruled in part on other grounds, John Crane, Inc. v. Scribner, 800 A.2d 727(2002), is one of the oldest appellate decisions enunciating the bare metal principles in an asbestos case. It has been cited frequently by courts in other states since its issuance 14 years ago. Wood held: In order to demonstrate that Mr. Wood was exposed to Ford s asbestos-containing products, Mrs. Wood was required to present evidence tending to show that Mr. Wood inhaled asbestos fibers produced by Ford s products. Wood, 119 Md. App. at 26, 703 A.2d at 1329 (emphasis added). The issue distilled to simplest terms is, Who placed into the stream of commerce the asbestos-containing item to which plaintiff was exposed? If it was not the original maker or supplier of the automobile or truck (or pump, valve, turbine, boiler, etc.), then that maker or supplier bears no responsibility for plaintiff s illness. The maker of the replacement part is liable for any negligence or product defect, provided all the other elements of the causes of action are proven. The principal argument of a plaintiff opposing a bare metal motion is that, if the harm from exposure to asbestos from a replacement brake pad was foreseeable at the time the vehicle was manufactured, the vehicle maker had a duty to warn anyone replacing the original brake pads of the dangers of asbestos, regardless of who made that after-market part. The plaintiff in Wood argued unsuccessfully for a foreseeability test, where Ford Motors would be liable for asbestos-containing replacement parts which it knew or should have known would have to match the original parts put into the car on the assembly line: Mrs. Wood s phrasing of the issue, that Ford had a duty to warn of the dangers associated with the foreseeable uses of its vehicles, obscures the fact that she really is attempting to hold Ford liable for unreasonably dangerous replacement component parts that it neither manufactured nor placed into the stream of commerce. Id. at 34, 703 A.2d at Rejecting the foreseeability argument, the Wood Court instead decided that [i]n each of these cases [cited by plaintiff for this proposition], the plaintiff was injured by the manufacturer s product, not by a replacement component part manufactured by another many years later. Id. (emphasis added.) Plaintiff may seek to have Wood and its progeny overturned on public policy grounds, i.e., that society would rather impose liability on a large solvent corporation than leave an ill plaintiff without a viable avenue of compensation. As discussed below, the case of O Neil v. Crane Co., 53 Cal. 4th 335, 266 P.3d 987, 135 Cal. Rptr. 3d 388 (2012) is instructive. The O Neil Court rejected an attempt of plaintiff to invoke public policy to extend the boundaries of liability to reach a manufacturer, which did not make the product causing injury: Assuming that a manufacturer can reasonably be expected to foresee the risk of latent disease arising from products supplied by others that may be used with the manufacturer s product years or decades after the product leaves the manufacturer s control, we nevertheless conclude strong policy considerations counsel against imposing a duty of care on pump and valve manufacturers to prevent asbestos-related disease. * * * [T]he connection between defendants conduct and O Neil s injury is extremely remote because defendants did not manufacture, sell, or supply any asbestos product that may have caused his mesothelioma. O Neil did not work around defendants pumps and valves until more than 20 years after they were sold, and he did not develop an injury from the replacement parts and surrounding insulation until nearly 40 years after his workplace contact. All of these circumstances 928 Asbestos Medicine November 2014

7 attenuate the connection between defendants products and the alleged injury. Furthermore, little moral blame can attach to a failure to warn about dangerous aspects of other manufacturers products and replacement parts. Nor would imposing a duty of care in this context be likely to prevent future harm. There is no reason to think a product manufacturer will be able to exert any control over the safety of replacement parts or companion products made by other companies. Manufacturers may also have scant ability to influence their customers choices about other products. In this case, for example, the evidence showed defendants had no control over the Navy s purchasing choices or specifications; either at the time they provided pumps and valves for warships or later, when replacement parts were needed. In contrast, recognizing a duty of care would clearly impose a significant burden on defendants and all other companies that could potentially be held liable for injuries caused by products they neither made nor sold. Because the recognition of such a duty could lead to an overabundance of potentially conflicting product warnings, consumers could also suffer harm from the broad expansion of liability plaintiffs seek. Finally, it is doubtful that manufacturers could insure against the unknowable risks and hazards lurking in every product that could possibly be used with or in the manufacturer s product. In short, expansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm. To do so would exceed the boundaries established over decades of product liability law. `[S]ocial policy must at some point intervene to delimit liability even for foreseeable injury... The same policy considerations that militate against imposing strict liability in this situation apply with equal force in the context of negligence. Id, at 365, 266 P.3d at 1007 (citations and footnotes omitted). B. Summary of Cases Recognizing Bare Metal Defense If the facts of the case lend themselves to the bare metal defense, the principal cases to cite include: California: 1. O Neil v. Crane Co., 53 Cal. 4th 335, 266 P.3d 987, 135 Cal. Rptr. 3d 388 (2012) (product manufacturer generally not strictly liable for harm caused by another manufacturer s product). In O Neil, the Supreme Court of California reversed an intermediate appellate court s opinion to emphatically restate the law of that state: We reaffirm that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer s product. (Omitting cases on exceptions). *** That the defendant manufactured, sold, or supplied the injury-causing product is a separate and threshold requirement that must be independently established. Moreover, in strict liability, as in negligence, foreseeability alone is not sufficient to create an independent tort duty. The O Neil court then summed up all relevant cases with this holding: The connection between defendants conduct and O Neil s injury is extremely remote because defendants did not manufacture, sell, or supply any asbestos product that may have caused his mesothelioma. Id. at 365, 266 P.3d at 1007 (footnote omitted). Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 929

8 2. Merrill v. Leslie Controls, Inc., 101 Cal. Rptr. 3d 614, (2009) (manufacturer not liable for foreseeable hazards from asbestos materials that it did not make or place into stream of commerce.) In Merrill, the California Court of Appeal rejected the foreseeability argument in holding that the defendant could not be liable for parts which it neither made nor placed into the stream of commerce. On foreseeability, the Merrill opinion held: Merrill argues that [defendant] was required to warn about all foreseeable hazards associated with its valves, including those arising from asbestos-containing products which [defendant] did not supply, but which were used in association with its valves. Where [its] valves did not cause the injury, however, and instead the injury was caused by products made or supplied by other manufacturers and used in conjunction with [its] valves, [defendant] had no duty to warn. Id. at Taylor v. Elliott Turbomachinery Co., Inc., 171 Cal.App. 4th 564, 585 (2009) (a manufacturer may not be held liable for injuries caused by exposure to asbestos fibers released from products manufactured by other companies). The California Court of Appeals reaffirmed that an equipment maker is not liable for injuries caused by a plaintiff s exposure to asbestos fibers released from gaskets, packing, and insulation manufactured by other companies, and installed long after the maker s equipment was supplied to the Navy. The Taylor court looked no further than whether the defendant was within the chain of distribution. Id. at 579. The Taylor court held: Our conclusion is not affected by the fact that the use of asbestos-containing materials with respondent s equipment was both foreseeable and anticipated by respondents. (Omitting citations). * * * As these cases illustrate, foreseeability alone is not sufficient to justify the imposition of a duty to warn on the manufacturer of a component part. Id. at Florida: Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361, (S.D. Fla. 2012), appeal dismissed (Nov. 28, 2012) (granting summary judgment based on the bare metal defense, where the source of asbestos specifications originated with the Navy, where defendants own products were not inherently dangerous and did not contribute substantially to causing the harm, and where defendants did not participate substantially in integration of their bare metal products into the end design of systems aboard the [vessel]. ). Louisiana: Vedros, et al. v. Northrop Grumman Shipbuilding Inc., et al., No (E.D. La.) (summary judgment and dismissal with prejudice where plaintiff failed to show that defendant General Electric manufactured, sold, supplied, or distributed products leading to plaintiffs illness). Maryland: 1. Ford Motor Co. v. Wood, 119 Md. App. 1, (1998), cert. denied, 394 Md. 494 (1998), overruled in part on other grounds, John Crane, Inc. v. Scribner, 800 A.2d 727(2002) (a manufacturer s liability extends only to products which it manufactured or distributed and not to products, such as replacement parts, manufactured and distributed by others). 2. Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 210, 604 A.2d 445, 460 (1992) (adopting Lohrmann factors of regularity, frequency, and proximity to the specific product of the manufacturer to prove causation in asbestos cases). 930 Asbestos Medicine November 2014

9 3. Philip Royce May et al. v. Air & Liquid Systems Corp. etc. et al., Ct. of Spec. Appeals of Maryland, Sept. Term, No Argued June 5, 2014, decision pending. [NOTE: Check status before citing.] This appeal is from the grant of summary judgment on the bare metal defense by trial court in favor of makers of pumps identified as being on US Navy ships where plaintiff served as a machinist mate in the 1960s and 1970s. The ships were constructed in World War II era and plaintiff admitted that the original gaskets and packing had been changed numerous times before he serviced the pumps and installed replacement parts not made by the pump manufacturer. New Jersey: 1. Haas v. 3M Co., CIV.A FLW, 2014 WL (D.N.J. June 19, 2014) (granting summary judgment based on plaintiffs failure to show that they were exposed to asbestos-containing products produced by defendants). 2. Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326, 346, 89 A.3d 179, 190 (App. Div. 2014) (affirming trial court s granting of summary judgment where plaintiffs were unable to identify the manufacturer of the replacement parts that made them ill). New York: 1. Egelston v. Air & Liquid Systems Corp., No and Jones v. Air & Liquid Systems Corp., No (N.Y.Sup. Ct., Onondaga County, NY) (denying plaintiffs motion to reconsider summary judgment in favor of defendants based on bare metal defense). 2. Surre v. Foster Wheeler, LLC, 831 F.Supp. 2d 797, (S.D.N.Y. 2011) (granting summary judgment because defendant neither manufactured nor placed into the stream of commerce the asbestos to which plaintiff was exposed). 3. In re Eighth Judicial Dist. Asbestos Litig., 92 A.D.3d 1259, 1260, 938 N.Y.S.2d 715, 716 leave to appeal denied, 19 N.Y.3d 803, 969 N.E.2d 222 (2012) (trial court erred by charging jury that defendant could be liable for asbestos exposure from third party products used in conjunction with defendant s products; verdict in favor of plaintiffs affirmed on other grounds). 4. Crews v. Air & Liquid Sys. Corp., 7:12-CV-1678 FJS/DEP, 2014 WL (N.D.N.Y. Feb. 18, 2014) (granting summary judgment where plaintiffs were unable to establish the manufacturer of the asbestos to which he was exposed). Washington: 1. Simonetta v. Viad Corp., 165 Wash.2d 341 (2008) (defendant equipment manufacturer was not in chain of distribution of the dangerous product and, therefore, could not be held strictly liable for failing to warn about asbestos contained in another manufacturer s product). 2. Braaten v. Saberhagen Holdings, 165 Wash.2d. 373, , 198 P.3d 493, 500 (2008) (defendant equipment manufacturers were not liable for failure to warn of danger of exposure during maintenance of their products to asbestos-containing insulation manufactured and supplied by third parties). 3. Macias v. Saberhagen Holdings, Inc., 175 Wash. 2d 402, 416, 282 P.3d 1069, 1077 (2012) (affirming the general rule that a manufacturer in the chain of distribution is subject to liability for failure to warn of the hazards associated with use of its own products, but finding Simonetta and Braaten factually distinguishable based on the product at issue.) In Macias, the product at issue was unlike the equipment on Navy ships in Simonetta and Braaten a dust mask with a filter designed to trap asbestos fibers. The worker, who cleaned the masks at his job, claimed that exposure to the accumulation of respirable asbestos fibers from the filter medium and on the mask itself were hazards known and anticipated by the manufacturer. By contrast, Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 931

10 Braaten involved alleged asbestos exposures to replacement gaskets and packing sold to the Navy and used on equipment aboard its warships. In Simonetta, plaintiff was a Navy seaman who claimed exposure to asbestos from applied thermal insulation applied, after delivery of the equipment, to the exterior of defendant s evaporators, pumps, and valves. The Macias court repeated the general governing principles under Washington law: 1. To find strict liability in a product liability case, the manufacturer must be in the chain of distribution. 2. Foreseeability is not an element of a failure to warn case under Washington s Prod. Liab. Act. Id., 175 Wash.2d at 410, 418, 282 P.3d 1069, 1074, MDL 875: 1. Conner v. Alfa Laval, Inc., 842 F. Supp.2d 891, 801 (E.D. Pa. 2012) (under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not produce or distribute). Judge Eduardo Robreno wrote in Conner, that foreseeability is not a basis to impose liability: Second, Plaintiffs argue that Defendants have a duty to warn of the hazards posed by the foreseeable uses of their products. The Court has held that, as a matter of law, Defendants do not owe a duty to warn under maritime law of the hazards posed by products they did not manufacture or distribute. Id. at Hoffeditz v. AM General, LLC, No. 2: , 2011 WL (E.D. Pa. 2011) (plaintiff must establish as a threshold matter that his injuries were caused by a product of particular manufacturer or supplier, but denying summary judgment based on the existence of a genuine issue of material fact). 3. Schott v. Various Defendants, No (E.D. Pa. Mar. 12, 2014) (granting summary judgment where plaintiff s expert claimed that it was more likely than not that defendant supplied the original asbestos-containing products; the court held that this opinion was impermissibly speculative ). Federal Circuits: 1. Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir. 1990) (granting summary judgment to defendants where plaintiffs failed to present evidence showing that each plaintiff had inhaled asbestos fibers shed by the particular product of any defendant). 2. Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (claim for asbestos-related injury under Maryland law requires proof that plaintiff was exposed regularly, frequently, and in close proximity to defendant s specifically identified product, and inhaled sufficient asbestos fibers to cause the alleged illness). 3. Lindstrom v. A-C Prod. Liability Trust, 424 F.3d 488, (6th Cir. 2005) (original equipment manufacturers not responsible for asbestos-containing material incorporated into their products post-manufacture). But See Cases: 1. Quirin v. Lorillard Tobacco Co., 13 C 2633, 2014 WL (N.D. Ill. Feb. 14, 2014) (denying summary judgment based on a failure to warn theory.) While the court upheld the bare metal defense, it noted that a duty may attach where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the 932 Asbestos Medicine November 2014

11 defendant s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else. 2. Sawyer v. A.C. & S., Inc., 32 Misc. 3d 1237(A), 938 N.Y.S.2d 230 (Sup. Ct. 2011) (Heitler, J.) (where a manufacturer meant for its products to be used in conjunction with asbestos, injury to plaintiff was foreseeable and defendant may be held liable for injuries resulting from products produced and/or sold by third parties); see also, Defazio v. Chesterton, 32 Misc. 3d 1235(A), 938 N.Y.S.2d 226 (Sup. Ct. 2011). III. Challenging the Expert Before Trial This section explores methods of limiting the effectiveness of the adversary s expert at trial. By understanding what trial lawyers can do in this respect, they will also learn what to expect when their adversaries attempt the same strategy. Forewarned is forearmed. Traditionally, interposing objections during an expert s testimony before the jury or belated motions to strike after the testimony is uttered were the most used tools in controlling the flow and content of the adversary s case, including expert testimony. Increasingly, battles over the content of expert testimony are waged out of the presence of the jury, even months before commencement of trial. This will define the evidence which the jury will consider, and may well lead to a dismissal, an early settlement, or a more predictable outcome of a jury trial. A. Motion in Limine to Exclude Expert Testimony While frequently couched in terms of eliminating or limiting the opposing party s evidence, the motion in limine refers to its timing, not relief sought. The Latin term, in limine, literally is translated as, at the threshold. Absent different instructions pursuant to a court s discovery schedule or pre-trial rulings, the motion in limine can be made at any time during a hearing or a trial and can be made either in writing or orally. 1. Strategic Considerations in the Timing of the Motion in Limine Subject to contrary order of court, the practitioner needs to evaluate what is to be accomplished from the motion in limine in order to determine its most beneficial timing. Obtaining an order eliminating the opponent s principal expert witness long before trial on the basis, for example, that the opinions expressed do not comport with Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct (1993), may toll the death knell of the opponent s claim. The earlier such a blow is struck, usually the cheaper the litigation costs to the client. Knocking out the opponent s expert certainly may result in winning summary judgment or voluntary dismissal of the action, or at a minimum, getting a more palatable settlement demand. Some trial judges are pro-active in their gatekeeper role under Daubert and will ferret out bogus and unscientific opinions as soon as the issue is raised. Others tend to keep the issue in Limbo longer, either to allow the uncertainty as to the outcome of a motion in limine to facilitate settlement negotiations or to leave it to opposing counsel to educate the jury on the lack of weight of the expert s opinion based on shaky scientific foundations through cross-examination. Judges know that errors letting in challenged opinions at trial can be undone in post-trial rulings, such as motions for JNOV, whereas an error barring evidence could lead to granting a motion for new trial or a reversal of the judgment on appeal. Knowing the jurist presiding over your case may aid in the timing of the motion in limine. A down-side risk of an early motion in limine is obviously that to present the issue fully to the court, one necessarily tips one s hand concerning weaknesses in the opponent s case. Winning the battle in Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 933

12 eliminating some opinion evidence early may nevertheless result in losing war, if the opponent has sufficient time to regroup and consult with experts who cure the earlier shortcoming. On the other hand, delaying the filing of the motion in limine until too late in the development of the case also has untoward effects. For example, deferring such a motion until after your opponent has given the opening statement may permit a prejudicial, even if unfulfilled, presentation to reach the jury s ears and perhaps unconsciously set up within the court s mind the desirability of permitting cross-examination to determine the weight of evidence, rather than ordering its outright exclusion. Electing to forego the motion in limine and delaying a challenge to an expert witness s opinions until objection during direct examination by the adversary or until cross-examination is dangerous and ineffective. The objection, if overruled, of course is meaningless to stop the challenged evidence from reaching the jury s attention. Even the sustained objection may follow a question detailed enough to transmit the offending message to the jury. A motion to strike almost always offers too little, too late. The adage about not being able to unring a bell is particularly apt. When to file the motion in limine follows the Goldilocks Rule not too early, not too late, but just right. Winning a timely motion in limine may also eliminate a ground for mistrial, an expensive and wasteful endeavor. Medical Mutual v. Evans, 330 Md. 1, 266 A.2d 103 (1993). 2. Preservation of Ruling on Motion for Appellate Review Even where a motion in limine is fully argued and decided prior to trial or outside of the presence of the jury, such denial is not automatically and certainly not immediately reviewable on appeal. Most states have rules similar to Maryland Rule 2-517, which declares: (a) Objections to Evidence. An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. 3. Motion Denied Where the proponent of the motion in limine fails to receive a favorable ruling, he must preserve the point for appellate review by objecting contemporaneously with the offer of the offending evidence. Failure to object then,... or as soon thereafter as the grounds for objection become apparent, results in waiver of the objection. Md. Rule 2-517; Collier v. Eagle-Picher Industries, Inc., 86 Md. App. 38, 585 A.2d 256 (1991). Obtaining from the trial court permission for a continuing objection to a line of questions by an opposing party may preserve an issue for appellate review without the necessity of repeated interruptions, as long as the series of questions is clearly within the scope of the original objection. However, the continuing objection is not so broad as to guarantee preservation of the subject of a motion in limine for appellate review where the contemporaneous objection rule is ignored. Beghtol v. Michael, 80 Md. App. 387, 564 A.2d 82 (1989). 4. Motion Granted Where an adversary s motion in limine is granted, the losing side needs to introduce into the record a proffer of all the facts and opinions which would have been introduced, had the motion in limine been denied. Absent that proffer, an appellate court will have nothing in the record to gauge the correctness of the trial court s ruling or the harmlessness of an error. Logically, the proffer should occur at that juncture of the trial where the evidence would have been introduced, but for the adverse ruling on the motion in limine. As long as the proffer is made prior to the conclusion of presentation of evidence, it is difficult to understand how an appellate court could find a waiver. 934 Asbestos Medicine November 2014

13 Finally, on the point of preservation of issues for appeal, the motion in limine should be detailed and complete. Ideally, the motion should be in writing, supported by a comprehensive legal memorandum and fleshed out with evidentiary support in the form of affidavits and/or excerpts of relevant depositions, documents, reports and other records obtained during discovery and copies of learned treatises and periodicals not likely to be available to an appellate court. An evidentiary hearing may be needed to create a full record. B. Motions in Limine Under the Frye Standard For over seventy years, the sole standard for admissibility of novel scientific evidence was the socalled Frye Doctrine. In Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), the court refused to admit evidence derived from a crude precursor to the polygraph machine. In doing so, the Frye court required that expert testimony deduced from a well-recognized scientific principle or discovery... must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Id. This general acceptance test was the judicial standard of admissibility of expert testimony and scientific evidence until 1993, when the Supreme Court supplanted it with its interpretation of Federal Rule of Evidence, Rule 702. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). [PRACTICE NOTE: Does your jurisdiction apply Frye, Daubert or some hybrid? A simple inquiry at Google or Google Scholar reveals numerous resources that provide State-by-State lists of the controlling statutes, rules and cases. The sources tend to be somewhat dated, so care must be exercised before using the citations. See e.g., Flake, A., Harlan, E., King, J, Fifty State Survey of Applicability of Daubert available for download to members of the ABA Section of Litigation; State Standards for Admitting Scientific Evidence (1999) available for download from the National Traffic Law Center; Kaufman, M., Status of Daubert in State Courts, (2006) available for download from the Atlantic Legal Foundation.] States are not required to adopt or follow the Federal Rules of Evidence. Some do; many do not. The Daubert standard is not codified as a federal rule but it has been adopted by almost 30 States. Several dozen others, however, continue to rely on some form of the older Frye standard of general acceptance when considering the admissibility of expert or scientific evidence. In addition to caselaw setting out the tests for admitting expert evidence, there is a crazy-quilt of State and Federal codifications of the rules of evidence. The Frye states include Alabama, S. Energy Homes Inc. v. Washington, 774 So.2d 505, 517 n.5 (Ala.2000); Arizona, Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000); California, People v. Leah, 882 P.2d 321 (Cal. 1994); Colorado, Lindsey v. People, 892 P.2d 281 (Colo. 1995); District of Columbia, Nixon v. United States, 728 A.2d 582, 588 (D.C. 1999); Florida, Flanagan v. State, 625 So.2d 827 (Fla.1993); Illinois, People v. Miller, 670 N.E.2d 721, 731 (Ill. 1996); Kansas, State v. Heath, 957 P.2d 449 (Kan. 1998); Maryland, Hutton v. State, 663 A.2d 1289 (Md.1995); Michigan, DePyper v. Navarro, 1995 WL , at *34 (Mich. Cir. Ct., 1995); Minnesota, Goeb v. Tharaldson, 615 N.W.2d 800 (Minn. 2000); Mississippi, Gleeton v. State, 716 So.2d 1083 (Miss. 1998); New Jersey, State v. Harvey, 699 A.2d 596 (N.J. 1997); New York, People v. Wesley, 633 N.E.2d 451, 454 n.2 (N.Y.1994); Pennsylvania, Commonwealth v. Blasioli, 713 A.2d 1117 (Pa. 1998); and Washington, State v. Copeland, 922 P.2d 1310 (Wash. 1996). Maryland, for example, has enacted rules of evidence that govern the admissibility of expert testimony that is unrelated to scientific issues. See Md. R. Evid A litigant attempting to introduce scientific evidence in Maryland still must satisfy the Frye test of general admissibility, which was explicitly adopted by the Maryland Court of Appeals in See Reed v. State, 283 Md. 374, 399 (1978) (holding the use of spectrograms inadmissible in Maryland courts for failure to achieve, as of the time of the opinion, the general acceptance in the scientific community required by the Frye test). Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 935

14 As mentioned, the Frye test requires a trial judge to determine whether the methodology used has been generally accepted by the applicable scientific community. A court considering evidence pursuant to the Frye test does not focus so much on the reliability and validity of the scientific issues involved, as on whether the methodology for reaching the conclusions uses generally accepted principles. This is typically shown through learned treatises and applicable technical literature, such as peer-reviewed journal articles and the like. See, e.g., United States v. Horn, 185 F.Supp.2d 530, 552, n.39 (D. Md. 2002). The Daubert standard, on the other hand, requires a judge to analyze the validity, reliability, relevance, and scope of highly-specialized matters. Daubert at 554, n.41 ( The main difficulty with the Daubert case is that courts are ill equipped to make independent judgments on the validity of science. ) Judges are not scientists or physicians, yet they are charged with the duty to evaluate scientific methods in the most complex and controversial fields. A daunting task that can be greatly eased for the court by the party moving in limine through presentation of arguments and authorities in a simple straightforward manner. In practice, a scientific opinion is inadmissible pursuant to the Frye test if its validity is disputed in the relevant scientific community, or if it is regarded as experimental or results from a subjective judgment that merely appears objective because of sophisticated machinery involved, such as a polygraph. Reed, 391 A.2d at 381, 385. As the Court of Appeals summarized, as long as the scientific community remains significantly divided, results of controversial techniques will not be admitted. Id. at 388. In Keene Corp. v. Hall, 96 Md. App. 636, 626 A. 2d 997 (1993), the defense moved in limine to bar expert opinion evidence by Dr. Gerritt Schepers on the causation of plaintiff s laryngeal cancer under the Frye test. Plaintiff produced no evidence from the scientific and medical fields showing that anyone besides this doctor used his bizarre technique of diagnosing mesothelioma solely from a simple AP x-ray of the chest and from examining lung tissue under polarized light. The trial court nevertheless denied the motion and permitted Dr. Schepers to testify to the jury about his use of polarized light microscopy (PLM) to visualize uncoated asbestos fibers in the biopsied lung tissue of the plaintiff. From that observation, he opined, over objection, that asbestos caused plaintiff to develop his disease. On appeal, the Court of Special Appeals reversed the lower court, holding: Because Dr. Schepers use of PLM to identify asbestos in undigested human tissue was not demonstrated to be generally accepted in the relevant scientific and medical communities, we must reverse the judgment and remand the case for a new trial. Id., 96 Md. App. At 660. That said, recent caselaw shows a tendency in some courts to stretch the Frye analysis to be almost coextensive with Daubert, stopping just short enough to avoid reversing years of precedent. The effort is buoyed by Md. R. Evid , which can be argued as superseding prior Frye caselaw. In Maryland, courts increasingly have focused on the reliability and validity of scientific methods underlying an expert opinion, and even excluded testimony on grounds that it was unreliable regardless of whether it was generally accepted. See Giant Food, inc. v. Booker, 152 Md. App. 166, (2003) (excluding expert testimony because it was not the product of reliable principles and methods. ) Even though the Maryland Court of Appeals maintains that the Frye standard still governs, caselaw is instructing trial judges to qualify the admissibility of expert testimony so that general acceptance in the scientific community is not the single determining factor. See Clemons v. State, 392 Md. 339 (2006) (holding that scientific evidence is inadmissible when a genuine controversy exists within the scientific community about the reliability and validity of the technique in question). This and the codified rules of evidence are hybridizing Frye. 936 Asbestos Medicine November 2014

15 The holding articulated in Frye became referred to as the general acceptance test and served as the majority rule in both federal and state courts for expert testimony based upon new scientific theories. With the promulgation of the 1975 Federal Rules of Evidence, many within the legal community questioned whether the Frye test was still in force or whether it had, instead, been superseded by the Federal Rules. Most federal courts attempted to read the general acceptance test in a manner consistent with the new requirements of F. R. Evid. 702 and 703. There were, however, a few courts (most notably in the Second and Third Circuits) that held that Frye was not compatible with the Federal Rules. These courts held that the Federal Rules required the trial court to look at a variety of factors to determine whether the novel scientific theory was reliable and relevant to proving causation. See generally, United States v. Williams, 583 F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S (1979) (the court refused to apply Frye stating that the Federal Rules of Evidence govern the admissibility of expert testimony). In United States v. Downing, 753 F.2d 1224 (3rd Cir. 1985) the court held that reliability of scientific evidence should be determined by; (1) method s potential rate of error; (2) existence and maintenance of standards for the method; (3) care and concern with which a scientific technique has been employed, and whether it appears to lend itself to abuse; (4) relationship between the scientific technique and other types of scientific techniques routinely admitted into evidence, and (5) presence of fail safe characteristics. C. Motions in Limine Under the Daubert Standard Over time and seemingly in lock-step with advances in science and technology, courts steadily eroded the Frye doctrine, riddling it with clarifications and exceptions. States supplemented the Frye holdings with codifications of the rules of evidence, including those governing expert testimony. Seventy years after Frye, the Supreme Court of the United States decided Daubert which moved the inquiry beyond Frye s mere general acceptance test. In Daubert, the Supreme Court held that Rule 702 of the Federal Rules of Evidence superseded Frye and the general acceptance test. Id., 113 S.Ct. at In this case, the families of two children who were born with deformed limbs sued Merrell Dow Pharmaceutical. Id. 113 S.Ct. at They alleged that a drug manufactured by Merrell to treat nausea during pregnancy caused the deformities. To support their claim, the plaintiffs experts relied on animal studies, chemical structure analysis and re-analysis of previously unpublished epidemiological studies. Merrell s experts countered the plaintiffs experts with testimony concerning more than thirty epidemiological studies which concluded that there was no statistically significant correlation between the medication and birth defects. Id. 113 S.Ct. at The United States District Court for the Southern District of California ruled that the plaintiffs evidence was insufficient under the general acceptance test. Id. 113 S.Ct. at The U.S. Court of Appeals for the Ninth Circuit relying on precedent that embraced Frye, affirmed the lower court s holding. Id. The Supreme Court granted a Writ of Certiorari, eventually reaching the conclusion that the general acceptance of a scientific theory was no longer a prerequisite for admissibility of expert scientific evidence. Thus, it appeared, the common law standard had been supplanted by the more liberal Federal Rules of Evidence. With Daubert s embrace of the Federal Rules of Evidence, the following developments with respect to the admissibility of novel scientific evidence now control: Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 937

16 (1) Federal Rules of Evidence do not contain a requirement that scientific evidence be generally accepted in the field to be admissible in trial. (2) Federal Rule of Evidence 702 requires that trial judges ensure that an expert s testimony is based on scientific knowledge and will assist the trier of fact. (3) Scientific knowledge requirement establishes the standard of evidentiary reliability for expert testimony. (4) Under Federal Rule of Evidence 104(a), a trial judge must determine whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact. (5) Factors to use are: Whether the scientific knowledge or theory has been subject of peer review or publication; the known or potential error rate; and whether it has gained general acceptance in the field. Daubert v. Merrell Dow Pharmaceutical Inc. Introduction and Overview, Product & Safety Liability Reporter, BNA, Vol. 21, No. 30 (1993). For the first time in Daubert, the Supreme Court clarified that Rule 702, not Frye, controlled the admission of expert testimony in the federal courts. The Supreme Court held that when expert evidence based upon scientific knowledge is offered at trial, the judge, upon proper motion by a litigant who challenges the admissibility of the testimony, should act as a gatekeeper and first determine whether the proffered evidence is reliable whether it is evidence that can be trusted to be scientifically valid. For almost a decade after Daubert, courts continued to address the unresolved issue whether the Daubert factors by which reliability was to be tested should also be applied to experts offering opinion testimony that was not based on clearly identified scientific principles, but which sprung from technical or other specialized knowledge. Perhaps to establish uniformity and predictability, Federal Rule of Evidence 702 was amended in 2000 to include that to be admissible, expert testimony: (1) must be adequately based upon reliable facts or data. (2) must be product of reliable principles and methods, and (3) must demonstrate that the expert has applied the principles and methods reliably to the facts of the case. Before the 2000 amendment to Rule 702 was effective, the Supreme Court clarified its Daubert opinion in the case of Kumho Tire Co. v. Carmichael, 526 US 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Seeming to give advance benediction over the then pending proposal for a change to Rule 702, the Kuhmo court reiterated that trial judges continue to be gatekeepers, allowing only reliable expert opinion evidence to reach a jury. The court widened the scope of Daubert gate-keeping duties all forms of expert testimony. With amendment of Rule 702 in 2000, the specific factors demonstrated by the Daubert Court are: (1) whether the expert s theory or technique can be challenged in some objective fashion or whether it is a subjective or conclusory approach that cannot reasonably be assessed for reliability; (2) whether technique or theory has been subject to peer review and publication; (3) whether there is a known or potential rate of error of technique or theory when applied; (4) whether there are the existence and maintenance of standards and controls; and (5) whether technique or theory has been generally accepted in the scientific community. Rather than standardizing the expert evidence inquiry, Kumho unwittingly may have made the issue more complicated. Daubert analyses now extend to all forms of expert opinion testimony, not just scientific or 938 Asbestos Medicine November 2014

17 medical. Rather than insisting on rote adherence to these standards, Kuhmo diluted the standards to guidelines, imbuing the trial court/gatekeeper with broad discretion to fashion flexible tests to meet the type of expertise at hand. Not all experts are scientists or physicians and different means may be used to permit an assessment of the reliability of the nonscientific expert opinion testimony. The Court specifically declared that the gate-keeping function of trial judges applies not only to testimony based on scientific knowledge, but also to knowledge based on technical and other specialized knowledge. Every specialty or expertise encompassed by other specialized knowledge will be difficult to predict or limit. The Daubert Court in 1993 explicitly stated that trial judge s focus must be towards examining the principles and methodology, not on the conclusions they generate. Yet, just a few years later, the Court changed its opinion from this announced position and recognized that conclusions and methodology are correlated and not entirely distinct from one another. General Electric v. Joiner, 522 U.S. 136 (1997). The language of the new Rule 702 covers both the methodology and the conclusion, in that it directs a trial court to determine not only whether the methods used by an expert and the principles upon her analysis rests have been determined to be reliable, but also whether the witness has applied the principles and methods reliably to the facts that are in controversy in the particular case. D. Reliability Factors Under Daubert The trial courts make a preliminary determination of admissibility. This job involves a preliminary assessment of whether the evidence is relevant, competent, and material. In short, can the evidence be properly applied to the facts in this case? This is the traditional gate keeping function of courts. A number of reliability factors can enter into this and subsequent hearings using the Daubert standard: (1) Has the theory or technique been empirically tested? (2) Has theory or technique been peer reviewed and published? (3) What is the known or potential error rate? (4) Expert s qualifications and stature in the scientific community? (5) Does technique rely upon the special skills and equipment of one expert or can it be replicated by other independent experts? (6) Can the technique and results be explained with sufficient clarity and simplicity for court and jury to understand its plain meaning? As discussed above, although Daubert remains the standard by which admissibility in federal cases is measured under Fed. R. Evid. 702, states remain free to apply Frye and other evidentiary standards, and over two dozen States, many with substantial asbestos dockets, currently do. IV. Trends in Excluding Opinion Evidence on Causation A. General Overview At the center of the debate over causation in asbestos litigation, particularly those cases alleging mesothelioma, is the admissibility and sufficiency of expert testimony on causation and the closely interrelated questions of fiber type and dose. The controversy over fiber type and minimum dose needed to cause mesothelioma has made eliciting sound expert testimony and barring unsound expert testimony that much more vital. Some courts permit plaintiffs experts to opine that every exposure to asbestos stands alone as a substantial contributing factor to a plaintiff s disease. Under this single fiber theory, because the Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 939

18 precise amount of exposure required to cause an individual s disease is unknown, even the slightest contact or those most limited in duration (i.e., even a single fiber) cannot be ruled out as a substantial contributing factor in the asbestos-related disease. In recent years, courts have begun to realize that more must be done to prevent bogus science from influencing verdicts. Many have come to the realization that, in what is universally conceded to be a doseresponse illness, dose does matter. The question is not simply whether asbestos in all its forms causes the response. See, e.g., Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, (Pa. 2007) (It is not a viable solution to indulge in a fiction that every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial factor causation[.] ); Borg-Warner v. Flores, 232 S.W.3d 765, (Tex. 2007) (Exposure to some respirable asbestos fibers was insufficient to establish asbestos-containing product as a substantial cause of plaintiff s disease.) Building on its ground-breaking opinion in Borg-Warner v. Flores, the Supreme Court of Texas, on July 11, 2014, clarified that the standard of substantial factor causation in Warner, an asbestosis case, applies equally to mesothelioma cases. Bostic v. Georgia-Pacific Corp., S. Ct Texas, 2013 WL No , at *1. The Court stated: The any exposure theory effectively accepts that a failure of science to determine the maximum safe dose of a toxin necessarily means that every exposure, regardless of amount, is a substantial factor in causing the plaintiff s illness. This approach negates the plaintiff s burden to prove causation by a preponderance of evidence. Id. at *4. The Bostic Court summarized its holding: We conclude that in all asbestos cases involving multiple sources of exposure, including mesothelioma cases, the standards for proof of causation in fact are the same. In reviewing the legal sufficiency of the evidence: proof of any exposure to a defendant s product will not suffice and instead the plaintiff must establish the dose of asbestos fibers to which he was exposed by his exposure to the defendant s product; the dose must be quantified but need not be established with mathematical precision; the plaintiff must establish that the defendant s product was a substantial factor in causing the plaintiff s disease; the defendant s product is not a substantial factor in causing the plaintiff s disease if, in light of the evidence of the plaintiff s total exposure to asbestos or other toxins, reasonable persons would not regard the defendant s product as a cause of the disease; to establish substantial factor causation in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff s exposure to the defendant s product more than doubled the plaintiff s risk of contracting the disease. Id. at * Continuing the widening trend, on July 14, 2014, in Davidson v. Georgia-Pacific, LLC, (USDC W.D. La.) 2014 WL , at *6 the federal district court in Shreveport granted summary judgment in favor of the defendants after the plaintiff s expert on causation had his opinions on every fiber stricken. The Court held, This court finds that the every exposure theory conflicts with the substantial factor test of causation that applies under Louisiana law. If a plaintiff could establish causation with the 940 Asbestos Medicine November 2014

19 every exposure theory, then every exposure to asbestos would be deemed a substantial factor, no matter the frequency, duration, and proximity of exposure, all of which are factors that Dr. Schwartz has testified are relevant to determining causation. It would therefore be inconsistent with Louisiana law to admit the every exposure theory. In an order dated September 24, 2008, the Pennsylvania Court of Common Pleas in In re Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler LLC, No , 2008 Phila. Ct. Com. Pl. LEXIS 229 (Pa. Ct. Com. Pl. Sept. 24, 2008) precluded plaintiffs experts from asserting that every exposure to asbestos was a substantial factor in causing the plaintiffs disease. The court excluded the opinions of Eugene Mark, M.D., Jonathan Gelfand, M.D., Arthur Frank, M.D. and William Longo, Ph.D. The court reasoned that the experts failed to cite generally accepted scientific methodologies in support of their conclusions and that their reports were unsupported by methodology and lacking consideration of the Lohrmann substantial factor test as to the frequency, regularity, and proximity of a plaintiff s exposure evidence. Judge Tereshko noted that the experts claimed methodology simply [did] not exist or [was] so convoluted and inherently contradictory so as to defy any comprehension. Id. Moreover, he recognized the contradictory nature of the phrase every breath of asbestos is a substantial factor in plaintiff s disease, id. at 49, stating that the general population is exposed to asbestos in one form or another whether it is a background rate or a discrete exposure, some get an asbestos related disease, some do not. Therefore, not all asbestos exposures cause disease. Id. at 50. The court went on to examine the shortcomings of the plaintiffs experts methods, concluding that the experts did not employ any scientific methodology to reach their conclusion. With regard to their purported methodologies, Judge Tereshko noted that, within this maze, no recognizable methodology was found. The mere mention of methodologies without a detailed explanation of how [they] were used in arriving at certain conclusions, produces scientifically incoherent opinions based upon scientifically incoherent methodologies and such are not generally accepted in the relevant scientific community. Id. at Judge Tereshko s order solidified earlier Pennsylvania decisions. In Vogelsberger v. Owens-Illinois, Inc., 2006 WL , at *13 (Pa. Ct. Com. Pl. Aug. 17, 2006), the court, applying Frye, precluded plaintiffs experts, John Maddox, M.D. and Richard Lemen, CIH, from opining that every exposure to asbestos was a substantial contributing factor in the development of the plaintiff s asbestos related disease. The court held that there is no medical authority or generally accepted methodology that would support the conclusion that... every exposure substantially contributed to a particular plaintiff s disease. 1d., at *13. Reasoning that the every exposure theory was, at most, a best guess approach not suitable for courtroom testimony, the court enunciated: In the end, my decision ultimately rests upon whether the plaintiffs experts opinions were based upon methodologies utilizing discrete and specific scientific principles logically applied in a manner that can be affirmatively articulated, referenced, reviewed, and tested, and empirically verified or whether the testimony was based upon the best estimate, the gut instinct, or the educated guess of the experts. Thorough review of the transcripts and the various authorities relied upon by the plaintiffs experts foundational opinions are based upon the latter rather than the former. Id. at *2. The court rejected the every exposure theory, in part, because it is inconsistent with the fact that background exposures and ambient concentrations of asbestos do not cause disease. The court asserted that plaintiffs experts have to identify a relevant, causative dose above the ambient concentrations in the air: Pretrial Motions Practic: Or How to Win Without Really Trying Your Case... Loker 941

20 No one, including the plaintiffs experts, proffers an opinion that this level of exposure creates an increased risk of the development of any asbestos-related disease. Accordingly, this background or ambient exposure is simply not sufficient to allow experts to causally attribute asbestosrelated disease to it. Everyone, including the plaintiffs experts, agrees that something greater is required. The argument in this Frye challenge, in part, revolves around the questions of how much greater quantity of exposure is necessary to permit the causal attribution of an asbestosrelated disease to a particular asbestos exposure. Id. at *3. Likewise, in Summers v. CertainTeed Corp., the Superior Court of Pennsylvania, in excluding the opinions of Jonathan Gelfand, M.D., made the following analogy: [S]uppose an expert said that if one took a bucket of water and dumped it in the ocean that was a substantial contributing factor to the size of the ocean. Dr. Gelfand s statement saying every breath is a substantial contribution factor is not accurate. 886 A.2d 240, 244 (Pa. Super. 2005). The court went on to point out: If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If the person worked for thirty years at an asbestos factory making lagging, it can hardly be said that the one whiff of the asbestos from the brakes is a substantial factor in causing the disease. Id. In Gregg v. V-J Auto Parts, Inc., 943 A.2d 216 (Pa. 2007), the court recognized: [O]ne of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts to offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or opinions that are not couched within accepted scientific methodology. Id. at 226. See also Basile v. Am. Honda Motor Co., No CD 2005 at 11 (Pa. Ct. Com. Pl. Feb. 22, 2007) (excluding the testimony of John Maddox, M.D. based on the fact that his opinion offered no methodology to support a single fiber opinion, much less general acceptance of any such methodology. ) Courts in other jurisdictions also have tossed the testimony of experts trying to sell this unsupported causation theory. A trial court in Washington granted defendant s motion in limine to disallow several of plaintiffs experts, Drs. Carl Brodkin and Samuel Hammar, from testifying that every exposure was a substantial cause of the plaintiff s disease. In reaching its conclusion, the court in Free v. Ametek, No SEA (Wash. King County Super. Ct. Feb. 29, 2008), stated: Conventional wisdom is that there is no safe level of exposure to asbestos. A more accurate statement of conventional wisdom, however, would be that there is no known safe level of exposure, just as there is no known threshold level for causation of asbestos-related disease. Dr. Hammar s hypothesis, therefore, is not supported by replicable, scientific methodology. While it may be assumed to be accurate and sufficient for purposes of connecting asbestos exposure to mesothelioma in general, the assumption that every exposure to asbestos over a life s work history, even every exposure greater than 0.1 [fiber years], is a substantial factor contributing to development of an asbestos related disease, is not a scientifically proved proposition that is generally accepted in the field of epidemiology, pulmonary pathology, or any other field relevant to this case. There is no known threshold; there is no known level of exposure. That does not mean none exists; it simply means modern science has not and cannot, with current scientific expertise or relying on existing studies, determine what that level of exposure is. Dr. Hammar may not testify 942 Asbestos Medicine November 2014