Products Liability Law Reporter

A federal district court held that the plaintiffs’ expert, Dr. Carl Brodkin, could testify as to causation in a mesothelioma case against Honeywell International Inc.

Agnes Toy and Thomas Toy Jr. sued Honeywell International Inc., alleging liability for the late Thomas Toy Sr.’s malignant melanoma allegedly resulting from asbestos-containing products manufactured or supplied by the defendant. The plaintiffs contended that Toy Sr. had worked with Bendix brakes during his U.S. Army service and while working as a civilian machinist.

The plaintiffs offered Dr. Carl Brodkin, a specialist in occupational and environmental medicine, as a causation expert. Brodkin, who reviewed medical records, pathology reports, personnel records, and Toy Sr.’s death certificate, in addition to discovery information regarding Bendix brakes, concluded that working with and around Bendix brakes was significant and a substantial contributing factor in Toy Sr.’s development of mesothelioma.

Honeywell moved to exclude Brodkin’s testimony, arguing that the expert’s methodology was flawed because it did not quantify Toy Sr.’s exposure to asbestos from Bendix brakes, impermissibly invoked the “every exposure” theory, and contradicted epidemiological studies finding that brake mechanics have no increased risk of developing mesothelioma.

Denying the motion, the district court noted that Brodkin did not quantify Toy Sr.’s exposure to asbestos, which was only possible, according to him, where a person wears a dosimeter when working with asbestos. Instead, the expert performed a qualitative review of the decedent’s occupational history, including his approximately 50 brake jobs; his bystander exposure to brake work; and the asbestos-containing products with which he worked, including Bendix brakes. The court also noted that according to Brodkin, whether an asbestos exposure is significant depends on the exposure’s intensity, duration, and frequency. Brodkin also explained that not all exposures to asbestos are significant. For an exposure to be significant, according to Brodkin, a product must contain significant amounts of asbestos and someone must manipulate the product in a way that produces a significant number of asbestos fibers.

The court concluded that it was sufficient for the purpose of establishing causation that the defendant’s product contributed to the risk of Toy Sr. developing cancer. Brodkin’s testimony is also helpful to the trier of fact, the court found, despite its lack of quantitative assessment of the decedent’s actual exposure. The defendant may, however, cross-examine Brodkin at trial and offer contradictory evidence to undermine the expert’s opinions.

Citation: In re Toy Asbestos, 2021 WL 1167638 (N.D. Cal. Mar. 26, 2021).

Plaintiff counsel: AAJ member Benjamin H. Adams, West Hollywood, Calif.; AAJ members David C. Humen and Jessica Dean, both of Dallas; and AAJ member Ethan Horn, Ladera Ranch, Calif.