In a decision, dated September 25, 2017, a Philadelphia state trial court excluded the opinions of plaintiff’s experts, Mr. Sean Fitzgerald and Dr. Ronald Gordon, on the ground that they did not use generally accepted methodology in forming their scientific opinions. The case, Sally Brandt v. The Bon-Ton Stores, Inc. et. al. (Court of Commons Pleas of Philadelphia County, First Judicial District of Pennsylvania, September 25, 2017), was being carefully watched because it was alleged that J&J’s cashmere bouquet talcum powder caused, not ovarian cancer–the disease entity at issue in the J&J talcum powder cases pending in St. Louis and elsewhere–but mesothelioma, which affects the pleura, the membrane linings of the lungs.
The stakes were high because two-and-a-half years earlier, in April 2015, a Los Angeles, CA state court jury found Colgate Palmolive liable for $13m in damages in a case brought by Judith Winkel. Winkel was a 73-year-old woman who claimed that her mesothelioma was caused by her use of Cashmere Bouquet talcum power from 1961 to 1976. (Colgate Palmolive sold the brand in 1995). The parties settled that case on a confidential basis prior to the filing of an appeal.
In the final analysis, the Brandt court determined that the testing performed by Sean Fitzgerald, a licensed professional geologist, constituted a “mishmash of scientifically accepted methodologies.” In pertinent part, the court determined that Mr. Fitzgerald:
“….begins with a presumption that the products he’s using have been bulk tested and found to contain asbestos. Therefore, he starts with a premise that he should find asbestos fibers. However, the testing, how he structures the testing, and how he measures and analyzes the results, are in fact self-designed variations of scientifically accepted methodologies; a mishmash of scientifically accepted methodologies.”
Plaintiff’s other expert, Dr. Ronald Gordon, is a clinical pathologist at the Mt Sinai School of Medicine in New York. Because Dr. Gordon is not a medical doctor, he could only offer his opinions to a reasonable degree of “scientific certainty” rather than to a reasonable degree of “medical certainty”.
Although the court’s opinion found several disturbing issues concerning his opinion, Dr. Gordon’s undoing may have been his failure to adhere to and complete a testing protocol referred to as the Yamate Level III protocol. Dr. Gordon admitted that he did not use the Yamate Level III protocol because he knew that he would not find any asbestos. Moreover, Dr. Gordon used substantially less than the standard amounts for his testing of both lung and lymph tissue samples. Rather than using the optimal amount of two grams for examining lung tissue and one gram for examining lymph tissue, he prepared samples of only 1/600th of a gram for each type of plaintiff’s tissue. When pressed, Dr. Gordon admitted he deviated from the accepted methodology because he wanted to “find asbestos”.
What are the takeaways from Brandt?
Notably, Pennsylvania is a Frye jurisdiction. Pursuant to Pennsylvania law, a trial court is permitted to thoroughly vet the acceptability of the methodologies of the scientific experts’ opinions. Some defense practitioners complain that Frye does not permit the defense as broad a latitude as Daubert to challenge plaintiff’s experts’ opinions. The Brandt decision demonstrates that a thorough, well-reasoned assault on plaintiff’s experts can meet with success in a Frye jurisdiction.
Plaintiff’s experts have adapted well to the Daubert and Frye regimes governing the admissibility of expert testimony in our trial courts over the past decade. Like Las Vegas performance artists adept at sleight of hand, Gordon and Fitzgerald did an excellent job in disguising their ill-formed opinions in their effort to avoid disqualification. These scientists went to enormous lengths to stress their adherence to accepted methodology used in their respective fields, although neither expert did so in the final analysis. The Brandt court deserves credit for its painstaking assessment of the scientific method governing asbestos identification and exposure.