FILED: NEW YORK COUNTY CLERK 08/22/ :23 PM INDEX NO /2014 NYSCEF DOC. NO. 422 RECEIVED NYSCEF: 08/22/2016

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1 FILED: NEW YORK COUNTY CLERK 08/22/ :23 PM INDEX NO /2014 NYSCEF DOC. NO. 422 RECEIVED NYSCEF: 08/22/2016 SUPREME COURT OF THE STATE OF NEW YORK ALL COUNTIES WITHIN NEW YORK CITY x IN RE: NEW YORK CITY ASBESTOS LITIGATION x GASPAR HERNANDEZ-VEGA, Index No.: /14 -against- Plaintiff, AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants x WATTS WATER TECHNOLOGIES, INC. S MOTION IN LIMINE TO PRECLUDE PLAINTIFF S EXPERTS CAUSATION OPINIONS Defendant Watts Water Technologies, Inc. ( Watts ) hereby moves for an order in limine precluding the testimony of plaintiff s experts including but not limited to Steven Paskal, CIH, Dr. James A. Strauchen and Dr. Kenneth Spaeth that plaintiff s alleged exposure to asbestos from working with gaskets and packing in connection with Watts products was a substantial contributing factor to his development of mesothelioma. As grounds, Watts states that plaintiff has failed to carry his burden of demonstrating that his experts opinions are either (1) based on a scientifically reliable foundation or (2) relevant under the legal definition of causation under New York law. Introduction Plaintiff s experts opinions that [e]ach of [plaintiff s] exposures substantially increased his risk (Paskal), all exposure... above background asbestos levels... was a substantial factor (Spaeth), and Mr. Hernandez-Vega s cumulative exposure... was the cause of his 1 of 15

2 malignant mesothelioma (Strauchen), are the same each and every exposure opinions that have been repeatedly rejected by the Court of Appeals as well as courts across the country as lacking in foundational reliability. 1 As a scientific matter, these opinions are pure ipse dixit, as they lack any objective scientific support and bear no relationship to the plaintiff s actual exposure history. Thus none of plaintiff s experts has offered (1) an estimate or some other scientific expression of the plaintiff s amount of asbestos exposure attributable to Watts products, or (2) an opinion, with reasoned explanation, that this amount was sufficient to cause plaintiff s illness, both of which are required by Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006), Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014) and Sean R. v. BMW of N. Am., LLC, 28 N.Y.3d 801, 812 (2016). 2 Indeed, Watts believes the reason plaintiff s experts have not offered such evidence is that any estimate of plaintiff s potential Watts-related exposure would fall several thousand-fold short of the lowest dose that has been found by any reliable epidemiologic study to pose any risk of mesothelioma. Moreover, under Parker as well as longstanding common law predating even the first Restatement of Torts in 1934, a defendant s conduct cannot be a substantial contributing factor to a plaintiff s harm unless the conduct is by itself sufficient to cause the harm. Plaintiff s experts do not even attempt to address this requirement, hence their opinions are irrelevant under the governing legal standard. In addition, for plaintiff s Watts-related exposure to be a substantial contributing factor its causal contribution must be substantial in light of the causal contributions made by other defendants products and any other exposures plaintiff may have 1 See Plaintiff s June 28, 2016 Opposition to Watts Motion for Summary Judgment ( SJ Opp. ) at 35, equating plaintiff s experts testimony to each and every exposure opinion of Dr. Roggli. 2 Plaintiff s experts opinions are nonsensical as a matter of plain English as well as science. To assert that every exposure is automatically a substantial causal contribution is simply absurd, and renders the word substantial utterly meaningless of 15

3 had. As plaintiff s experts do not attempt to address this requirement either, their testimony is irrelevant for this reason as well. Facts Plaintiff s Claims. As set forth in Watts summary judgment papers, Plaintiff s claim with respect to Watts is that he was potentially exposed to asbestos by making external flange gaskets to install new Watts -brand valves, and/or by removing and replacing external flange gaskets and internal packing to repair such valves, between 1964 and 1977 or 78. Plaintiff s Proffered Expert Testimony. Based on the expert reports he has provided, plaintiff intends to offer at trial the expert testimony of (1) Steven Paskal, a certified industrial hygienist, (2) Dr. James A. Strauchen, M.D., a pathologist and professor at Mount Sinai School of Medicine, and (3) Dr. Kenneth Spaeth, M.D., MPH, MOccH, that plaintiff s exposure to Watts-brand products was a substantial contributing factor to causing his mesothelioma. See SJ Opp. at None of plaintiff s three experts, however, has offered any assessment either by actual measurement in a simulation of plaintiff s activities in connection with Watts products, or by estimation based on published data concerning substantially similar activities of plaintiff s purported asbestos exposure relating to the Watts products. Mr. Paskal admits that ordinarily he can provide principled estimates of exposure levels (usually at the order of magnitude level) associated with particular endeavors, but has not done so with respect to plaintiff s alleged Watts-related work. SJ Opp. Ex. 27 at 2, n. 3. Instead, each of the experts offers, at most, the bald assertion that every or each of plaintiff s work-related exposures was a substantial contributing factor to his mesothelioma. SJ Opp. Ex. 27 at 5 ( [e]ach of these exposures substantially increased his risk of contracting of 15

4 mesothelial cancer ) (Paskal); Ex. 29 at 5 ( the cumulative exposure from each product and piece of equipment was a substantial factor in Mr. Hernandez Vega having developed mesothelioma ) (Spaeth); Ex. 30 at 2 ( Mr. Hernandez-Vega s cumulative exposure to asbestos and asbestos containing products was the cause of his malignant mesothelioma. ) (Strauchen). 3 Nor do the experts attempt to estimate and compare the causal contributions made by any alleged Watts-related exposures with the contribution from the products of other defendants or non-parties, or any other source of asbestos exposure plaintiff has had from sources other than his pipefitting work. Argument I. THE EXPERTS CAUSATION OPINIONS, BASED ON THE ASSERTION THAT EVERY EXPOSURE IS A SUBSTANTIAL CONTRIBUTING FACTOR, LACK A SCIENTIFICALLY RELIABLE FOUNDATION Under New York law, in a toxic tort case, expert opinion testimony on causation should set forth a plaintiff s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006) (emphasis added). Although the expert need not quantify exposure levels precisely or use the doseresponse relationship, id. at 448, the expert must at the very least provide a scientific expression of the plaintiff s exposure level. Id. at 449. Since Parker, the Court of Appeals has twice expressly confirmed its requirements. Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014) ( at a minimum,... there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of 3 Thus Dr. Strauchen does not even purport to opine that each product with which plaintiff worked was a substantial contributing cause, but rather only that the totality of his exposures was, an opinion that offers nothing whatsoever with respect to Watts of 15

5 harm that the plaintiff claims to have suffered ) (emphasis added); Sean R. v. BMW of N. Am., LLC, 28 N.Y.3d 801, 812 (2016) ( Although it is sometimes difficult, if not impossible, to quantify a plaintiff's past exposure to a substance, we have not dispensed with the requirement that a causation expert in a toxic tort case show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries. ) (emphasis added). In Parker, neither of plaintiff s experts articulated with any specificity the level of benzene to which he was exposed. Instead, they offered conclusory or subjective assertions that plaintiff s exposure to benzene was frequent and extensive, or far more than the subjects of a study finding a link between benzene and leukemia, and then based their causation opinions on those assertions and the theory that there is no known safe level of benzene exposure (the socalled linear non-threshold model, i.e., that risk begins and rises linearly with any exposure above zero). The Appellate Division of the Supreme Court rejected that theory as merely a hypothesis that cannot form the basis for a scientifically reliable opinion, 7 N.Y.3d at 446, and held the experts opinions inadmissible. The Court of Appeals affirmed, holding that even though a precise exposure quantification is not necessarily required, some scientific expression of the exposure level as well as a showing that it is sufficient to cause the disease is essential to a foundation of scientific reliability, id. at 447, , and neither of plaintiffs experts met these requirements, id. at The Court in Parker noted that, beyond precise exposure measurements or calculations, an exposure estimate formed through the use of mathematical modeling by taking a plaintiff s work history into account would be adequate. Id. While the court suggested it was also possible that qualitative means could be used to express a plaintiff s exposure, id. (emphasis added), the example the court gave of such a means was [c]omparison to the exposure levels of subjects of other studies... provided the expert made a specific comparison sufficient to show how the plaintiff s exposure level related to those of the other subjects, and if this method was found to be generally accepted as reliable in the scientific community, id. Plaintiffs experts in Parker did not meet any of these requirements with their subjective and conclusory assertions of 15

6 Beyond the Court of Appeals repeated holdings, the Appellate Division First Department has similarly recognized plaintiff s requirement to provide a scientific assessment of his exposure dose and proof it was sufficient to cause his disease. Thus in Nonnon v. City of New York, 932 N.Y.S.2d 428 (N.Y. Sup. Ct. App. Div. First Dept. 2011), nine separate cases were brought by individuals who allegedly suffered personal injuries arising from exposure to hazardous substances emanating from a nearby city-owned landfill. The trial court denied the city s motions for summary judgment in each of the cases, which had challenged the scientific reliability of the plaintiffs experts causation testimony. The Appellate Division affirmed the summary judgment denial as to some of the cases, where plaintiffs suffering from acute lymphoid leukemia offered expert opinions based on (1) a proximity analysis which, under the circumstances, was the optimal proxy for the measure of exposure and an acceptable substitute for a dose-response analysis, and (2) epidemiologic evidence showing a relative risk greater than 2.0 in individuals with plaintiffs degree of proximity. The court held these opinions satisfied Parker s requirement of a scientific expression of plaintiff s exposure levels and proof of its causative ability. Id. at 433, Plaintiffs with Hodgkin s disease offered no such scientific expression of their exposures and its sufficiency, however, and the court therefore ordered summary judgment granted as to those claims. Id. at 438. Further, based on the dictates of Parker, Cornell and other authority, the New York Supreme Court has rejected expert causation testimony specifically in asbestos cases where it is based on an every exposure is substantial theory and lacks any scientific expression of the amount and sufficiency of plaintiff s exposure. Thus in Juni v. A.O. Smith Water Prods., 11 N.Y.S.3d 416, 432 (N.Y. Sup. Ct. Apr. 13, 2015), the court noted that evidence of exposure amount and sufficiency is required because it is not the [general] association between of 15

7 mesothelioma and asbestos that is in issue when determining causation, but whether a defendant may be held liable for having caused a [specific] plaintiff's mesothelioma, which depends on the sufficiency of the exposure, if any, to asbestos in the defendant's product and whether that exposure is capable of causing mesothelioma. Id. at 432 (emphasis added). Accordingly, [t]he opinion that every single exposure constitutes a significant contributing factor because the exposures cumulatively cause the disease is irreconcilable with the well-recognized scientific requirement... that the amount, duration, and frequency of exposure be considered in assessing the sufficiency of an exposure in increasing the risk of developing a disease. Id. at 436. Indeed, for similar reasons courts across the country have repeatedly rejected every exposure causation opinions as lacking in any reliable scientific foundation and hence inadmissible. For example, in Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012), a test case for the admissibility under Frye of testimony that every exposure above background is a substantial contributing factor to asbestos-related disease, the court noted that one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive, id. at 56, and hence rejected the expert s opinion inadmissible as fundamentally inconsistent with both science and the governing standard for legal causation, id. at 57. Numerous other decisions are to the same effect. 5 5 See, e.g., Howard v. A.W. Chesterton Co., 621 Pa. 343, 348 (2013) ( expert witnesses may not ignore or refuse to consider dose as a factor in their opinions and [t]he theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation ); Smith v. Ford Motor Co., 2013 U.S. Dist. LEXIS 7861, *4-5 (D. Utah Jan. 18, 2013) (excluding expert s testimony that each and every exposure to asbestos by a human being who is later afflicted with mesothelioma contributed to the formation of his disease because such testimony is, as a matter of law, unsupported by sufficient or reliable scientific research, data, investigations or studies. ); Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217, (D. Utah 2013); Krik v. Crane Co., 76 F. Supp. 3d 747, (N.D. Ill. 2014) (expert who did not evaluate amount of plaintiff's asbestos exposure or consider whether that dosage of exposure was sufficient to cause his lung cancer not permitted to offer causation opinion based on "any exposure" theory because "the notion that it is theoretically possible that any amount of exposure could cause injury is different from an opinion that the particular level of dosage experienced by a plaintiff was sufficient to cause his or her particular injury."); Comardelle v. Pennsylvania Gen. Ins. Co., 76 F. Supp. 3d 628, 634 (E.D. La. 2015) (expert's specific causation opinion based on "every of 15

8 In the present case, none of plaintiff s experts has offered any actual measurement, estimate based on work history or other scientific expression of plaintiff s alleged Watts-related asbestos exposure, much less of its ability to cause mesothelioma. Notably, plaintiff s industrial hygienist, Steven Paskal, admits that he can provide principled estimates of exposure levels (usually at the order of magnitude level) associated with particular endeavors, SJ Opp. Ex. 27 at 2, n. 3 (emphasis added), but he has not done so despite the voluminous ten-day deposition record of all of plaintiff s occupational and other asbestos exposures. 6 Watts suspects the reason plaintiff s experts have offered no scientific expression of plaintiff s alleged Watts-related exposure, or its sufficiency to cause mesothelioma, is that any such estimate would reveal the exposure to be several thousand-fold below the lowest exposure shown by reliable epidemiologic evidence to be associated with an increased risk of mesothelioma. In any event, the dispositive exposure" theory inadmissible because "[a]lthough there may be no known safe level of asbestos exposure, this does not support [expert]'s leap to the conclusion that therefore every exposure [plaintiff] had to asbestos must have been a substantial contributing cause of his mesothelioma.... This kind of blanket specific causation opinion is not based on or tied to the specific facts and circumstances of any of [plaintiff]'s exposures to asbestos and it elides any differences or nuances of duration, concentration, exposure, and the properties of the fibers to which he may have been exposed."); Butler v. Union Carbide Corp., 712 S.E.2d 537, (Ga. Ct. App. 2011); In re W. R. Grace & Co., 355 B.R. 462, (Bankr. D. Del. 2006) (rejecting expert causation opinion based on no safe level or no threshold model because establishing that the risk of causation is not zero falls woefully short of the degree of proof required by Daubert and its progeny. ); Nat l Bank of Commerce v. Associated Milk Producers, Inc., 191 F.3d 858, (8 th Cir. 1999) (same); Sutera v. The Perrier Group of Amer., Inc., 986 F. Supp. 655, (D. Mass. 1997) ( there is no scientific evidence that the linear no-safe threshold analysis is an acceptable scientific technique used by experts in determining causation in an individual instance. ); Davidson v. Georgia Pacific LLC, 2014 U.S. Dist. LEXIS 95559, *13-17 (W.D. La. July 14, 2014) (every exposure testimony inadmissible because it is not testable, has no error rate and is therefore unreliable). 6 Paskal s opinion that Mr. Hernandez regularly incurred asbestos exposures that ranged from hundreds to millions of times greater than ambient pollution levels in even the most polluted areas, is utterly irrelevant under Parker and its progeny: the salient comparison is with levels shown to cause mesothelioma. Parker, 7 N.Y.3d at 448 (opinion on specific causation must consider whether plaintiff was exposed to sufficient levels of the toxin to cause the illness... ) (emphasis added). While Dr. Spaeth mentions in his summary of plaintiff s work history that on certain occasions plaintiff performed work that generated visible dust of some sort, at no time does Dr. Spaeth who is not an industrial hygienist attempt to translate this fact into any scientific expression of plaintiff s asbestos exposure, if any (obviously the dust could be in whole or in part simply that), during that activity, nor does he compare it to exposure levels that are sufficient to cause mesothelioma and explain the basis for that comparison, all as expressly required by Parker. Id. at 449 (holding plainly insufficient expert testimony that plaintiff had far more exposure to benzene than did the refinery workers in the epidemiologic studies, as this neither states the level of the refinery workers exposure nor specifies how [plaintiff] s exposure exceeded it ) of 15

9 fact is plaintiff s experts have no reliable scientific basis under Parker, Cornell, Sean R., Nonnon, Juni, as well as extensive authority across the country, for their opinions. The opinions must therefore be excluded. II. PLAINTIFF S EXPERTS OPINIONS ARE IRRELEVANT, AS THEY FAIL TO ADDRESS THE LEGAL STANDARD FOR SUBSTANTIAL FACTOR CAUSATION A. The Experts Do Not Opine That Plaintiff s Watts-Related Exposure Was Sufficient, By Itself, To Cause His Mesothelioma To establish causation under New York law, plaintiff must show that his Watts-related exposure was a substantial factor in bringing about [his] injury. Ohdan v. City of New York, 268 A.D.2d 86, 89 (N.Y. App. Div. 1st Dep't 2000) (emphasis added). Substantial factor causation has long been followed in the common law throughout the United States, including in New York, and hence was incorporated in both 431 of the original 1934 Restatement of Torts as well as the same section of the later 1965 Restatement (Second) of Torts. See Derdiarian v. Felix Contractor Corp., 51 N.Y.2d 308, 315 (1980) (citing Restatement (Second) of Torts 431); Sclafani v. Brother Jimmy s BBQ, Inc., No , 2010 N.Y. Misc. LEXIS 2394, *22 (N.Y. Sup. Ct. May 18, 2010) (citing 431 cmt a). Under these long-accepted principles, with only one exception an actor s conduct is not a substantial factor if it is not a but-for cause of plaintiff s harm that is, if the harm would have been sustained even if the actor had not been negligent. Restatement (Second) Torts, 432(1). The lone exception applies in cases like the this one where the combined active conduct of multiple defendants is alleged to have caused plaintiff s harm: If two forces are actively operating, one because of the actor s negligence, the other not because of any misconduct on his of 15

10 part, and each of itself is sufficient to bring about harm to another, the actor s negligence may be found to be a substantial factor in bringing it about. Id., 432(2) (emphasis added). 7 Reflecting the long-established nature of these principles, courts in New York as well as around the country that have applied the substantial factor test in combined active conduct cases have held that any single defendant s conduct may not be deemed a substantial factor in bringing about plaintiff s harm unless it is first shown that defendant s conduct was sufficient, by itself, to bring about plaintiff s harm. As already noted, the Court of Appeals recognized this principle in Parker, where it held that to establish causation in a toxic tort case plaintiff must not only show a scientific expression of the exposure dose from defendant s product but that the dose was of sufficient levels... to cause the illness. Id. at (emphasis added); accord Cornell, 22 N.Y.3d at 784 (plaintiff must show sufficient exposure to a substance to cause the claimed adverse health effect ) (emphasis added); Sean R., 28 N.Y.3d at 812 ( causation expert in a toxic tort case [must] show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injuries. ) (emphasis added); Juni, 11 N.Y.S.3d at 424 (in order to establish substantial factor causation, [plaintiff] w[as] obliged to prove that he was exposed to sufficient levels of the toxin to cause his illness ) (emphasis added). Innumerable out-of-state cases also recognize this principle. 8 7 As Prosser has observed, the exception to the but for rule was developed for cases in which application of the but-for rule would allow each defendant to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result. Prosser and Keeton on Torts, 41 at 268 (5th ed. 1984). See also Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, (Tex. 2014) (citing 432(2) and Prosser and explaining that the substantial factor standard subsumes the but for test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact. ). Plaintiff s experts do not contend that his exposure to Watts products was a but for cause of his mesothelioma. 8 See, e.g., Borg-Warner Corp. v. Flores, 232 S.W.3d 765, (Tex. 2007) (expert s testimony that every exposure to asbestos contributes to asbestosis held insufficient to establish that exposure to defendant s products was a substantial factor in bringing about the disease, at least in absence of evidence concerning (i) dose, (ii) whether that dose is sufficient to cause asbestosis, (iii) what percentage of the total exposure originated from defendant s products, and (iv) epidemiological studies showing doubled risk in cases of similar exposure); Basko v. Sterling of 15

11 As already discussed in connection with the lack of reliable foundation for plaintiff s experts opinions, the experts have not offered any scientific expression whatsoever of plaintiff s alleged Watts-related exposure dose, much less that it was sufficient by itself to cause his mesothelioma. Accordingly, their testimony is simply irrelevant, as it fails to address this fundamental requirement of substantial factor causation, and the testimony must be excluded. Smith v. Ford, 2013 U.S. Dist. LEXIS 7861, *9-10 (in the absence of research and data showing that the specific exposures to defendant s product were sufficient to cause plaintiff s mesothelioma on their own, the expert s testimony would do virtually nothing to help the trier of fact decide the all-important question of specific causation. ). B. The Experts Also Offer No Opinion That The Causal Contribution of Plaintiff s Watts-Related Exposure Was Substantial When Compared To The Causal Contribution of All His Exposures In addition, to establish that a defendant s conduct was a substantial factor in bringing about a plaintiff s injury, plaintiff must prove that the causal impact of the defendant s conduct Drug, Inc., 416 F.2d 417, (2 nd Cir. 1969) (plaintiff entitled to recover under 432(2) substantial factor test if jury found either defendant s product, alone, would have been sufficient to produce the injury); Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010, (D. Md. 1999) ( [t]he critical question here is whether [defendant] s chemicals or conduct were independently sufficient causes of harm to the plaintiffs. A cause must be sufficient before it can be substantial. ) (emphasis in original); Smith v. Ford Motor Co., 2013 U.S. Dist. LEXIS 7861, *9-10 (D. Utah Jan. 18, 2013) (excluding expert s causation testimony based on every exposure theory because there was no evidence that the specific exposures to defendant s product were sufficient to cause plaintiff s mesothelioma on their own); In re Bendectin Litigation, 857 F.2d 290, (6th Cir. 1988) (observing that, under 432(2), plaintiff must first prove that the conduct of each defendant, acting alone, was sufficient to be a possible proximate cause of the injury ); Nat l Bank of Commerce v. Associated Milk Producers, Inc., 191 F.3d 858, 864 (8 th Cir. 1999) (exposure to AFM-contaminated milk could not be considered a substantial factor in causing plaintiff s cancer because the levels of AFM in the milk were not high enough to cause cancer); Krik v. Crane Co., 76 F. Supp. 3d 747, (N.D. Ill. 2014) (expert s causation opinion based on "any exposure" theory inadmissible because "the notion that it is theoretically possible that any amount of exposure could cause injury is different from an opinion that the particular level of dosage experienced by a plaintiff was sufficient to cause his or her particular injury."); In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, (9th Cir. 2008) (affirming trial court s refusal to instruct jury on substantial factor causation because that test applies only when there have been multiple, independent causes, each of which alone is sufficient to cause the injury and plaintiffs could not show that [defendant s] radiation alone would have been sufficient to cause the injury. ); Quick v. Murphy Oil Co., 634 So. 2d 1291 (La. App. Ct. 1 st Cir. 1994) (granting defendant summary judgment where plaintiff s exposure to defendant s asbestos-containing products would not, by itself, present a health hazard; court rejected plaintiff s argument that, in concurrent cause cases, substantial factor test should be applied to all factors in combination with one another rather than each individual factor) of 15

12 was substantial when compared to the effect of all other contributing causes. See Restatement (Second) 433(a) ( important consideration in determining substantiality is the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it ). 9 The Texas Supreme Court has explained the rationale behind this requirement: Suppose a plaintiff shows that his exposure to a defendant's product more than doubled his chances of contracting a disease, but the evidence at trial also established that another source of the toxin increased the chances by a factor of 10,000. In this circumstance, a trier of fact or a court reviewing the sufficiency of the evidence should be allowed to conclude that the defendant's product was not a substantial factor in causing the disease. Bostic, 439 S.W.3d 332, For this reason, courts in jurisdictions that, like New York, follow the substantial factor test for causation, as well as justices of the New York Supreme Court itself, have excluded plaintiffs experts every exposure opinions in asbestos cases as fundamentally inconsistent with the requirement that the exposure in question be a substantial contributing factor. For example, in Betz the court specifically noted that under comment m to 433 of the Restatement, a proportionate evaluation may be required in a reasoned assessment of substantial-factor causation. Id. at 56 n.36 (emphasis added). For that reason, and because one cannot 9 As the drafters note: Some other event which is a contributing factor in producing the harm may have such a predominant effect in bringing it about as to make the effect of the [defendant] s negligence insignificant and, therefore, to prevent it from becoming a substantial factor. So too, although no one of the contributing factors may have such a predominant effect, their combined effect may, as it were, so dilute the effects of the [defendant] s negligence as to prevent it from being a substantial factor. Id., cmt. d (emphasis added). 10 Accord Kumah v. Brown, 130 Conn. App. 343, 352 (2011) ( [A]n important consideration in determining whether an actor s conduct was a substantial factor in bringing about another s harm is the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.... ) (quoting 431, cmt. d); Butts v. United States, 822 A.2d 407, 418 (D.C. 2003) ( substantial factor inquiry must take into account the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it. ); Hook v. Lakeside Park Co., 142 Colo. 277, 283 (1960) ( Where, as here, several events may have brought about the harm to plaintiff, and an event other than the defendant's negligence appears predominant, the alleged negligence cannot be considered a substantial factor. ) (citing 431, cmt. d) of 15

13 simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive, id. at 56, the court held the expert s opinion was fundamentally inconsistent with both science and the governing standard for legal causation and hence inadmissible, id. at 57. Numerous other decisions have concurred. 11 Similarly, in Juni, the New York Supreme Court referred to many of the decisions cited above in holding that an expert s opinion that a cumulative exposure to asbestos, no matter how small and without any quantification, was a substantial contributing factor to the development of a plaintiff's mesothelioma, is contrary to New York law as set forth in Parker and Cornell. 11 N.Y.S.3d at 439. The court also explained: Accepting the experts theory that a cumulative and unquantified exposure proves causation means that if Juni was exposed to asbestos dust when working on one product at one time in his decades-long career, that exposure would be considered just as likely to cause mesothelioma as his greater and more frequent exposures to asbestos dust from other products, a proposition that was contrary to accepted science and insufficient under the substantial contributing cause standard. Id. at 437. Accord Limmer v. 11 See, e.g., Howard, 621 Pa. 343, 348 ( [t]he theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation ); Sclafani v. Air and Liquid Systems Corporation, 2013 U.S. Dist. LEXIS 83453, *4 (C.D. Cal. May 9, 2013) (admission of every exposure testimony "would render the 'substantial factor' prong of the causation test meaningless."); Comardelle v. Pennsylvania Gen. Ins. Co., 76 F. Supp. 3d 628, 634 (E.D. La. 2015) (expert's specific causation opinion based on "every exposure" theory inadmissible because "[a]lthough there may be no known safe level of asbestos exposure, this does not support [expert]'s leap to the conclusion that therefore every exposure [plaintiff] had to asbestos must have been a substantial contributing cause of his mesothelioma.."); Davidson v. Georgia Pacific LLC, 2014 U.S. Dist. LEXIS 95559, *13-17 (W.D. La. July 14, 2014) (every exposure testimony inadmissible because it conflicts with the substantial factor test of causation that applies under Louisiana law); McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, (9th Cir. 2016) (affirming summary judgment for defendant because expert causation opinion based on every exposure theory amounts to reject[ing] the substantial-factor test as a whole ); Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005) (affirming summary judgment for defendant because expert s opinion that every exposure to asbestos, however slight, was a substantial factor in causing plaintiff s disease would render the substantial factor test meaningless ); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, (Tex. 2007) (expert s testimony that every exposure to asbestos contributes to asbestosis held insufficient to establish that exposure to defendant s products was a substantial factor in bringing about the disease, at least in absence of evidence concerning (i) dose, (ii) whether that dose is sufficient to cause asbestosis, (iii) what percentage of the total exposure originated from defendant s products, and (iv) epidemiological studies showing doubled risk in cases of similar exposure) of 15

14 Gutterman s Inc., 30 Misc. 3d 1213(A), *9 (N.Y Sup. Ct. Dec. 15, 2010) ( In ascertaining whether the defendant s conduct constitutes a substantial factor in bringing about the harm of which the plaintiff complains, consideration should be given to... the aggregate number of factors involved which contribute towards the harm and the effect each has in producing it ). Here, as already noted, plaintiff s experts offer no evidence whatsoever either of plaintiff s approximate asbestos exposure dose (if any) from his Watts-related work or its causal impact, much less of the dose and causal impact of all his other asbestos exposures, both occupational and otherwise, during the course of his life. And plaintiff s industrial hygienist Paskal specifically admitted that with information about plaintiff s activities which he has in spades from plaintiff s ten days of deposition he could offer principled exposure estimates, yet he has not done so. Paskal Report at 2 n.3. Accordingly, plaintiff s experts opinions are irrelevant in failing to address the requirement of New York causation law that the causal impact of any Watts-related exposure be substantial when compared to that of all of plaintiff s exposures, and must be excluded. Conclusion For all the foregoing reasons, therefore, Watts respectfully requests that the Court grant Watts motion to exclude the testimony of plaintiff s experts, including but not limited to Steven Paskal, Dr. James A. Strauchen and Dr. Kenneth Spaeth, that plaintiff s alleged exposure to asbestos in connection with Watts products was a substantial contributing factor to his development of mesothelioma of 15

15 Dated: August 22, 2016 New York, NY By its attorneys, SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD. Attorneys for Watts Water Technologies, Inc. By: /s/ Andrew W. Dean Andrew W. Dean, Esq. 850 Third Avenue, Suite 1100 New York, NY (212) of 15