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Case No. 1:12-CV-00596

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LUELLA C. PEHLKE, individually and as )

Special Administrator of the Estate of )

FRANK PEHLKE, JR., Deceased, )

)

Plaintiff, ) CASE NO. 1:12-CV-00596

)

V. ) Honorable Virginia M. Kendall

)

A. O. SMITH CORPORATION, et al., )

)

Defendants. )

DEFENDANT CBS CORPORATION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION IN LIMINE TO BAR PLAINTIFF’S EXPERT, KENNETH GARZA

MOTION IN LIMINE # 3

Now comes, Defendant CBS Corporation, a Delaware corporation, f/k/a Viacom Inc., 

successor by merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse 

Electric Corporation (hereinafter “Westinghouse”), by and through its attorneys, Foley & 

Mansfield, P.L.L.P., and pursuant to Federal Rule of Evidence 702, respectfully requests that this 

Court bar Plaintiff’s expert witness, Kenneth Garza, from offering opinion testimony in this 

matter. In support, Westinghouse states as follows:

INTRODUCTION

Plaintiff, Luella Pehlke (“Plaintiff”), cannot demonstrate that the opinions of her retained 

industrial hygienist, Kenneth Garza, meet the requirements of Federal Rule of Evidence 702 and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Westinghouse anticipates 

that Mr. Garza will opine that Decedent, Frank Pehlke (“Decedent”), was occupationally 

exposed to significant levels of asbestos from work around various products, including 

switchgear, at Joliet Arsenal. See Garza Report, attached as Exhibit A; see also Garza 

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Supplemental Report, attached as Exhibit B. This opinion is not supported by any facts of the 

case or any accepted scientific methodology. Mr. Garza’s opinions are based on the 

unsubstantiated theories and assumptions that (1) the switchgear at issue included asbestoscontaining components; (2) that such components were observed to have deteriorated over time 

due to operation of the equipment and other factors found in industrial environments other than 

the Joliet Arsenal; (3) that the same factors causing switchgear deterioration were at work at 

Joliet Arsenal on similar switchgear allegedly found at the arsenal; (4) that the observed 

deterioration produced dust particles from internal switchgear components which accumulated in 

a switchgear metal enclosure, an enclosure ventilated to outside air; (5) that such accumulated 

dust in the enclosure contained respirable asbestos fiber; and (6) the dust that electricians were 

observed blowing out of the ventilated switchgear metal enclosures included respirable asbestos 

fibers originating from deteriorated switchgear internal components.

Mr. Garza’s opinions ultimately depend on untested theories and opinions provided by 

Plaintiff’s proffered electrician expert, James Huttner, and Plaintiff’s proffered mechanical 

engineer expert, Samuel Wineman. Neither ‘expert’ provides any scientific or other evidence 

supporting their opinions beyond their anecdotal and singular observations of electrical 

equipment at locations other than the Joliet Arsenal. 

Mr. Huttner opines that “[a]bout 50% or more of the [switchgear] units in each bank have 

deteriorated components after 2-3 years of operation and the amount of deterioration increases 

each year.” Huttner Second Amended Rule 26 Report at 6, attached as Exhibit C. Huttner claims 

that he has visually observed such deterioration as an electrician and admits he has no other 

studies or scientific evidence supporting or confirming such observations. See id. at 5-6; see also 

Huttner Dep. at 52:8-12 (June 1, 2016), attached as Exhibit D.

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Further, Plaintiff, in her ‘Switchgear Brief,’ described Wineman’s opinions as follows:

Plaintiffs’ engineering expert Wineman confirms Huttner’s observations and 

opinions. Wineman reports: “The asbestos containing components will break 

down in time due to the constant flow of electricity through the connectors 

causing heat. This deterioration will cause some asbestos containing materials to 

flake off, break, or crumble, into a powdery or dust like material which 

accumulates on the surfaces of the switchgear and inside the boxes.” (Ex 11 at 2.) 

Wineman’s opinion is: “It is most likely that the dust which had accumulated 

inside the switchgear boxes or on the gear before inspection and cleaning of the 

switchgear contained asbestos from deteriorated components.”

CVLO Plaintiffs’ Third Revised Brief Re: Electrical Switchgear Asbestos Exposure, All MDL875, ECF Doc. # 8847 (May 1, 2013) (emphasis added), attached as Exhibit E.

Even if Huttner’s or Wineman’s limited, unscientific, first-hand observations of the 

physical condition of ‘switchgear’ in settings other than the Joliet Arsenal could be considered

switchgear deterioration ‘evidence’ at Joliet or elsewhere, neither they nor Mr. Garza present 

scientific or other evidence supporting an opinion that there was respirable asbestos dust left in 

the switchgear enclosures as a result of the claimed deterioration. This ‘asbestos dust from 

switchgear theory’ is the critical hypothesis that makes Huttner, Wineman, and ultimately 

Garza’s testimony purportedly relevant—‘deterioration’ alone isn’t the issue; it is whether that 

deterioration, if it occurred, produced asbestos dust that entered Decedent’s lungs. Without any 

support for this untested theory, none of their testimony about deterioration is relevant or 

supportive of an opinion that Decedent’s disease resulted from work around Westinghouse

switchgear.

Neither Garza, Wineman, nor Huttner have air sampling, materials testing, equipment 

operating data or other scientific evidence to support their ‘asbestos dust from switchgear’ 

theories. Wineman’s opinion, relied upon by Garza, that “[i]t is most likely that the dust . . . 

contained asbestos” alone is insufficient without confirming studies, data or other scientific 

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support. The hypothesis of asbestos content (or not) of observed dust and the source of such dust 

is incapable of proof by observation with the human eye or logic alone; it must be (and can be) 

tested and confirmed. Lacking such support for that theory, Mr. Garza’s testimony will not help 

the trier of fact to understand the evidence or to determine a fact in issue and is therefore 

inadmissible under FRE 702. As the United States Supreme Court has observed, “nothing in 

either Daubert or the Federal Rules of Evidence requires a district court to admit opinion 

evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. 

Joiner, 522 U.S. 136, 146 (1997).

Additionally, Mr. Garza made no attempt to quantify Decedent’s level of exposure to 

asbestos and simply assumed that because he was exposed to asbestos at all, this exposure was 

“significant,” which has been rejected numerous times by courts and the scientific community 

alike. Because Mr. Garza’s opinions are unreliable, they will not aid the jury in this case.

ARGUMENT

PLAINTIFF CANNOT MEET THE REQUIREMENTS OF RULE 702 OR DAUBERT TO 

DEMONSTRATE THAT MR. GARZA’S TESTIMONY IS ADMISSIBLE IN HER CASE.

Trial judges are the “gatekeepers” regarding admission of expert opinion testimony. See 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Exclusion of improper 

expert testimony is within the sound discretion of the trial court and will not be reversed absent 

an abuse of discretion. See Fed. R. Evid. 104(a); see also Dhillon v. Crown Controls Corp., 269 

F.3d 865 (7th Cir. 2001). Federal Rule of Evidence 702 “imposes a special obligation on the trial 

judge to ‘ensure that any and all scientific testimony . . . is not only relevant, but reliable.’” 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert, 509 U.S. at 589).

Plaintiff cannot meet her burden of establishing Mr. Garza’s testimony is admissible under these 

standards. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). 

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In addition to requiring that an expert have the requisite qualifications, Federal Rule of 

Evidence 702 requires that expert testimony (1) be based on sufficient facts or data, (2) is the 

product of reliable principles and methods, and (3) that the expert reliably applied the principles 

and methods to the facts of the case. Fed. R. Evid. 702. “Even ‘a supremely qualified expert 

cannot waltz into the courtroom and render opinions unless those opinions are based upon some 

recognized scientific method.’” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) 

(quoting Clark v. Takata Corp., 192 F.3d 750, 759 n. 5 (7th Cir.1999)). Plaintiff must establish 

that Mr. Garza’s testimony is “ground[ed] in the methods and procedures of science,” as opposed 

to his own “subjective belief or unsupported speculation,” which she cannot do. See Fed. R. 

Evid. 702; Daubert, 509 U.S. at 589-90. The district court is tasked with “consider[ing] whether 

the testimony has been subjected to the scientific method; it must rule out subjective belief or 

unsupported speculation.” O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir. 

1994). “A expert must substantiate his opinion; providing only an ultimate conclusion with non 

analysis is meaningless.” Clark v. Takata Corp., 192 F.3d 750, 757 (7th Cir. 1999). 

Mr. Garza employed no methodology and instead based his opinions solely on 

unsupported assumptions that are not corroborated in any way by the facts of Plaintiff’s case and 

baseless scientific “theories” that have been soundly rejected by courts and the scientific 

community. As such, Plaintiff cannot demonstrate that Mr. Garza’s opinions meet the strict 

requirements of Rule 702 and Daubert, and they should therefore be excluded.

A. Mr. Garza’s opinions are unreliable because they are based on faulty 

assumptions about switchgear not support from the facts of the case. 

Mr. Garza’s opinions will not assist a jury because he assumes the very conclusions that 

Plaintiff must prove in this case. His opinions are based on grand assumptions that (1) the 

switchgear at issue included asbestos-containing components; (2) that such components were 

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observed to have deteriorated over time; (3) that the same factors causing switchgear 

deterioration were at work at Joliet Arsenal on similar switchgear allegedly found there; (4) that 

the observed deterioration produced dust particles from internal switchgear components which 

accumulated in a switchgear metal enclosure, an enclosure ventilated to outside air; (5) that such 

accumulated dust in the enclosure contained respirable asbestos fiber; and (6) the dust that 

electricians were observed blowing out of the ventilated switchgear metal enclosures included 

respirable asbestos fibers originating from deteriorated switchgear internal components. While 

Mr. Garza’s report contains a blanket recitation of the materials he reviewed, including 

Plaintiff’s fact witness’ depositions and the depositions of Plaintiff’s expert, Samuel Wineman, 

those materials simply do not support the assumptions upon which Mr. Garza bases his opinions. 

Despite the availability of testing, Mr. Garza did not undertake any testing to determine whether 

the dust came from the internal components of the switchgear or the outside environment.

Federal Rule of Evidence 702(d) requires that an expert apply his methods to the specific 

facts of the case. Fed. R. Evid. 702(d). An expert’s “conclusions must be based on sufficient 

facts or data and must be the product of reliable principles and methods reliability applied to 

the facts of the case.” Thakore v. Universal Mach. Co. of Pottstown, Inc., 670 F. Supp. 2d 705, 

724 (N.D. Ill. 2009) (emphasis added). As the gatekeeper, the trial court must “rule out” expert 

opinions based on “subjective belief or unsupported speculation.” Deimer v. Cincinnati Sub-Zero 

Products, Inc., 58 F.3d 341, 344 (7th Cir. 1995). As this district has stated, “[a]n expert opinion 

cannot be based on facts that are contradicted by undisputed evidence.” Cage v. City of Chicago, 

979 F. Supp. 2d 787, 810 (N.D. Ill. 2013). Where the expert makes assumptions that are 

unsupported by any evidence, that is a basis for exclusion. See e.g., Elcock v. Kmart corp., 233 

F.3d 734, 756 (3d Cir. 2000); see also Richman v. Sheahan, 415 F. Supp. 2d 929, 942 (N.D. Ill. 

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2006) (stating that if there is no factual support for expert’s assumptions, the assumptions “are by 

hypothesis unreliable and inadmissible”). Because there is no factual support for Mr. Garza’s

assumptions, his opinions are unreliable and inadmissible.1 

Mr. Garza assumes that all switchgear at Joliet Arsenal contained asbestos, which is not 

supported by the evidence. For this assumption, Mr. Garza relies on the testimony of another of 

Plaintiff’s experts, Mr. Wineman,2 who has never been to Decedent’s worksite and only testified 

in general terms that between 1945 and the 1980s, switchgear above 440 volts contained 

asbestos. Exhibit B at 5 (citing Wineman Dep. at 56:12-19 (April 5, 2013), attached as Exhibit 

F). Decedent’s co-worker, Mr. Scroggins, did not recall switchgear above 440 at Joliet Arsenal, 

where he worked with Decedent. Specifically, he testified that most of the switchgear he saw 

there was 440 volts, including Westinghouse switchgear. Scroggins Dep. at 33:10-35:07 (July 9, 

2014), attached as Exhibit G. While there may have been other voltages, he only specifically 

recalled seeing lower voltage switchgear, which was 120, 220 and 440 volts. Id. at 33:22-35:07, 

80:09-81:18. He did not believe any switchgear was labeled as “high voltage.” Id. at 21:16-

21:18. Further, he did not know what components were in the switchgear and was not sure when 

the switchgear was installed. Id. at 81:20-82:9. Mr. Wineman stated that if there was asbestos in 

the insulation, the dust associated with the switchgear would contain asbestos. Exhibit B at 5 

(citing Exhibit F at 58:12-63). Because there is no evidence that Mr. Pehlke was around 

switchgear above 440 volts, the switchgear he was allegedly around would not have fit 

 

1 Mr. Garza makes no mention of Westinghouse switchgear in the context of Decedent’s exposure; he only mentions 

exposure to General Electric switchgear. See Exhibit B at 3. As such, Mr. Garza’s report is irrelevant, and therefore 

inadmissible, as to Westinghouse. See Master v. Hesston Corp., 291 F.3d 985, 991 (7th Cir. 2002).

2 Westinghouse has moved to exclude Mr. Wineman in a separate motion. Mr. Garza relies on Mr. Wineman’s 

depositions to establish that the products to which Decedent was exposed contained asbestos. Should this Court 

properly exclude Mr. Wineman’s testimony, Mr. Garza’s opinions are further undermined by his reliance on Mr. 

Wineman’s flawed opinions. See Fuesting v. Zimmer, Inc., 2010 WL 271728 (7th Cir. 2010) (excluding expert 

testimony that primarily relied on an excluded expert’s opinion). 

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Wineman’s criteria for containing asbestos, and therefore, any dust associated with the 

switchgear would not have contained asbestos. Even in the face of uncontroverted evidence, Mr. 

Garza still incorrectly assumes that the dust associated with the switchgear contained asbestos. 

Additionally, Mr. Garza assumes the switchgear deteriorate over time and produced dust 

from the internal components that contained asbestos and that the dust that the electricians blew 

out of the switchgear came from the internal components of the switchgear and contained 

asbestos. For this assumption, Mr. Garza primarily relies on the deposition testimony of 

Decedent’s co-worker, Billy Scroggins. See Exhibit B at 3-4. Mr. Scroggin’s testimony does not 

support this assumption. Mr. Scroggins testified that he did not know where the dust came from 

or whether it was from the interior of the switchgear because there was so much dust in the 

buildings already. Exhibit G at 24:01-25:17. He further testified that dust could have gotten into 

the switchgear from the outside. Id. at 83:16-84:7. He never looked to see if there was dust inside 

the switchgear because he “had nothing to do with [the switchgear].” Id. at 25:19-24. As such, he 

did not know what the dust was composed of that was flowing out of the switchgear cabinets. Id. 

at 84:11-13. If asbestos was in the dust, he believed it was from the piping that got into the 

switchgear. Id. at 84:19-85:3. Additionally, while another of Plaintiff’s experts, James Huttner, 

stated that he observed deterioration of switchgear, neither Mr. Huttner nor Mr. Wineman 

provide any scientific or other evidence supporting this opinion beyond their anecdotal and 

singular observations of electrical equipment at other locations than Joliet Arsenal. See Exhibit 

D at 52:8-12. As such, Mr. Garza’s opinions rest on nothing more than unsupported assumptions 

and untested theories. 

One important factor courts consider under Daubert in determining whether to exclude

expert testimony is whether the theory has been and can be tested. See Daubert, 509 U.S. at 595.

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Testing is available that Mr. Garza could have undertaken to avoid using a faulty assumption, but 

he simply chose not to do so. William E. Longo, Ph.D., who often testifies for plaintiffs in 

asbestos cases, has performed a work practice study to test the dust found in Westinghouse 

panelboards to determine if the dust came from the internal components or the outside 

environment. See Asbestos In Electrical Components, attached as Exhibit H. Mr. Longo 

highlights the inaccuracies of Mr. Garza’s assumption that dust associated with electrical boxes 

came from the internal components. First, the asbestos-containing molded phenolic resin 

components traditionally used in the electrical boxes did not have a natural degradation 

mechanism, and therefore, did not “dust” over time without significant mechanical abrasion. Id.

at 2. Additionally, during the time asbestos was traditionally used in electrical components, 

other asbestos-containing products may have been used nearby, which could have contaminated 

the boxes, as the boxes are not air tight. Id. at 2-3. Mr. Longo found even when there were no 

asbestos-containing parts in the panel, asbestos fibers still migrated from other sources and 

settled in the box from a fiber drift. Id. at 3. Thus, it cannot be assumed that the asbestos 

contamination came from the components in the box. Id. The results of this test demonstrate the 

inaccuracies in Mr. Garza’s assumptions and conclusions. Mr. Garza could have, but did not, 

conduct any tests to scientifically determine the composition of the dust associated with the 

switchgear instead of unreliably basing his opinions on unfounded assumptions not supported by 

the evidence in this case. 

Thus, Mr. Garza’s opinions are based on assumptions that are wholly unsupported by the 

evidence in this case.3This is assuredly not an accepted approach to any scientific determination 

 

3 Mr. Garza likewise ignored relevant and important testimony regarding the use of respiratory protection. His report 

states that he found no evidence of the use of respiratory protection, which would reduce asbestos exposure. Exhibit 

A at p. 5; Exhibit B at 6. To the contrary, Decedent’s co-workers, Hershel Sampson, testified that Decedent’s 

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and would only serve to mislead, confuse, and bias the jury. Mr. Garza is not permitted to base 

his opinion on facts that are contradicted by the undisputed evidence in this case. See Cage, 979 

F. Supp. 2d at 810. As such, this Court should exclude Mr. Garza’s testimony. 

B. Mr. Garza’s opinions are not reliable because he made no attempt to quantify 

Decedent’s exposure level in any respect. 

Mr. Garza’s opinions regarding Decedent’s exposure are likewise unreliable because he 

employed no methodology to determine Decedent’s exposure level from Westinghouse’s 

switchgear—or from any product, for that matter—and simply assumes that any exposure above 

ambient background level results in significant exposure. 

The World Health Organization, National Academy of Sciences, and various government 

agencies have adopted a methodology for determining the effects of toxins, which includes an 

evaluation “of the concentrations of these chemicals in air breathed by the individual,” that 

is combined with an evaluation of the necessary dose to produce the adverse effects in order to 

determine the risk of the individual in developing the disease. See Mancuso v. Consolidated 

Edison Co. of New York, Inc., 967 F.Supp. 1437, 1445 (S.D.N.Y. 1997) (emphasis added). 

Various courts throughout the country have excluded expert testimony in toxic tort cases

where the expert did not determine the injured party’s exposure level, including this district. The 

Northern District excluded the plaintiff’s industrial hygienist, among other experts, in Kirk v. 

Crane Co., 76 F. Supp. 3d 747, 752-53 (N.D. Ill. 2014) for failure to determine the plaintiff’s 

actual level of asbestos exposure. The industrial hygienist readily admitted in his deposition that 

he had not considered the plaintiff’s actual exposure level, and the court concluded that this was 

a “wholesale failure to base their opinions on facts specific to the case.” Id. at 753-54; see also 

 

employer warned its employees about working with asbestos, instructed them to use respiratory protection, and 

made such protection available. Sampson Dep. at 110:24-112:24, 162:2-14 (Sept. 25, 2012), attached as Exhibit K. 

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Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217 (D. Utah 2013) (expert excluded in asbestos 

case regarding each and every exposure theory because he failed to examine the plaintiff’s actual 

level of exposure); see also Mitchell v. Gencorp Inc., 165 F.3d 778-779 (10th Cir. 1999)

(excluding expert who did not attempt to determine decedent’s level of exposure to toxic 

chemical, stating that at a minimum, the expert “should include a description of the method used 

to arrive at the level of exposure and scientific data supporting the determination;” opinions were 

“little more than guesswork”); see also Mancuso v. Consolidated Edison Co. of New York, Inc.,

967 F.Supp. at 1449-50 (excluded expert who “made no serious effort” to evaluate the dosage of 

the toxin the plaintiffs received).

Rule 702(d) specifically requires that an expert base his opinions on the specific facts of a 

given case, which Mr. Garza did not do. See Fed. R. Evid. 702(d). Mr. Garza assumed, without 

making any attempt to quantify Decedent’s alleged exposure, that because Decedent was 

occupationally exposed asbestos at all, he was therefore exposed to “significant” levels of 

asbestos from various products, including switchgear. “It makes little sense” that Mr. Garza can 

consider what products Decedent was exposed to and opine about the level of exposure without 

undertaking to determine Decedent’s actual exposure level. See Mitchell, 165 F.3d at 781. His 

opinions are “little more than guesswork,” and must therefore be excluded. See id. 

His generic report readily admits that exposure studies of the levels of exposure using 

compressed air to blow out switchgear are unavailable, and therefore, he relied on exposure 

studies of what he claims is the “similar process of using compressed air to blow out dust in 

brake repair industry.” Garza General Report at 46, attached as Exhibit I. This is not a scientific 

methodology but is pure speculation from unrelated processes. He provided no evidence that

both activities are similar or comparable. Brakes contain different asbestos-containing materials 

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in different concentrations than switchgear, and brakes wear on a continual basis from friction 

forces, while switchgear does not. Additionally, this apples to oranges comparison ignores key 

differences in frequency, proximity, and duration of exposure between auto mechanics, who 

regularly change brakes, and, in this case, non-electricians, like Mr. Pehlke, who are only 

occasional bystanders to electricians blowing out switchgear. See Total Containment, Inc. v. 

Dayco Prods., Inc., No. Civ.A. 1996-CV-6013, 2001 WL 1167506, at *7 (E.D. Pa. Sept. 6, 

2001) (rejecting an “apples and oranges” comparison where expert failed to establish similarity 

of the data he relied on to the facts of the case); see also Joiner, 522 U.S. at 144-46 (rejecting 

study data because the opinions were “connected to existing data only by the ipse dixit of the 

expert”).’

Westinghouse’s expert, Kyle Dotson, did analyze Mr. Pehlke’s specific exposure in 

relation to Westinghouse switchgear with regard to frequency, duration, and proximity. Even 

under a “worst-case hypothetical,” based on the testimony of Decedent’s co-worker, Billy 

Scroggins, in which Decedent was within 10 feet of electricians blowing out switchgear 2 or 3 

times per week with an air hose for 3 minutes, “there is not even speculative evidence that such 

blowing out activities by others would result in any exposure whatsoever for Mr. Pehlke that 

might be associated with Westinghouse.” Mr. Dotson calculated Decedent’s “worst-case” 

exposure as likely zero, and if it were more than zero, it would not have exceeded the exposure 

of someone his age from the ambient environment in major U.S. cities. Dotson Supplemental 

Report at 33, attached as Exhibit J. 

As such, Mr. Garza’s testimony regarding Decedent’s asbestos exposure is not at all 

reliable because he made no attempt to calculate Decedent’s exposure level in any way, and this 

Court should therefore exclude his testimony as unreliable and misleading. 

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C. Mr. Garza’s opinion that every exposure above ambient background level was a 

significant exposure is unreliable because it is based on no scientific methodology 

and has been soundly rejected by the scientific community, as well as courts 

throughout the country. 

To cover up the absence of reliable and quantifiable data regarding Decedent’s exposure 

levels, Mr. Garza relied on an unsupported and flawed “theory” that every exposure above 

ambient background level is a significant exposure. This opinion is not based on actual scientific 

data but is instead incorrectly based on assumptions, speculation, and extrapolation from known 

scientific data regarding high levels of exposure to asbestos in the absence of scientific data 

available for low exposures. See Jacqueline Karnell Corn, Environmental Public Health Policy 

for Asbestos in Schools: Unintended Consequences, 17 (2000). This flawed analysis entirely 

ignores the age-old scientific tenant that the toxicity of a substance is dependent on the dose and 

the consensus among the scientific community that asbestos-related diseases are “dose 

responsive.” See The “Any Exposure” Theory: An Unsound Basis for Asbestos Causation and 

Expert Testimony, 37 SW. U. L. REV. 479, 480 (2008). The dose “the single most important 

factor to consider in evaluating whether an alleged exposure caused a specific adverse effect.” 

Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 770 (Tex. 2007); David L. Eaton, Toxicology for 

Judges and Lawyers, 12 J. L. & POL'Y 5, 11 (2003). There is generally a “threshold” dose, 

“below which even repeated, long term exposure would not cause an effect in any individual.” 

Behrens, 37 SW. U. L. REV. at 483-84. The Federal Judicial Center has recognized dose as a 

“central tenant of toxicology” B. Goldstein & M.S. Henifin, Reference Guide on Toxicology, 

Reference Manual on Scientific Evidence, Federal Judicial Center, 401 (2d ed. 2000); see also

Borg-Warner Corp., 232 S.W.3d at 771 (recognizing that asbestos-related diseases are doseresponsive and rejecting the “each and every exposure” theory).

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While the Seventh Circuit has not specifically addressed this issue, the Northern District 

recently excluded testimony of a plaintiff’s industrial hygienist regarding this theory, which was 

offered by the same plaintiff firm representing Plaintiff in this action. In Kirk v. Crane Co., 76 F. 

Supp. 3d 747 (N.D. Ill. 2014), the plaintiff offered the unsupported opinions from his experts, 

including an industrial hygienist, that even a single exposure to asbestos is significant and 

everything after that contributes as well. Id. at 752. The court rejected the experts’ opinions as a

“wholesale failure to base their opinions on facts specific to the case,” which runs afoul of Rule 

702(d) (requiring experts to reliably apply principles and methods to the facts of the case). Id. at 

753 They identified no peer-reviewed scientific journal adopting their theory and cited to no

medical studies setting forth a known rate of error. Id. at 754. “Instead, [the plaintiff’s] experts 

tout the ‘Any Exposure’ theory with little to no evaluation of the actual facts in this case.” Id. 

Numerous other courts have also excluded this testimony.4

To cover up his failure to quantify or consider the level of Decedent’s exposure, 

including frequency, duration, and proximity, Mr. Garza simply relied on an unsupported and 

 

4 Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 226-27 (Pa. 2007) (“each and every exposure” theory is a “fiction”); 

Betz v. v. Pneumo Abex, 44 A.3d 27, 30, 57-58 (Pa. 2012) (opinion not based on generally accepted scientific 

methodology); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007) (recognizing “threshold” exposure 

limit for asbestos); Georgia-Pacific Corp. v. Stephens, 239 S.W.3d 304, 320-21 (Tex. App. 2007); Bahnemann v. 

Allied Signal et al., No. AD 03-319 (Pa. Ct. Com. Pl. Aug. 17, 2006); In re Asbestos Litig., Certain Asbestos 

Friction Cases Involving Chrysler LLC, No. 0001 Control #084682 (Pa. Ct. Com. Pl. Sept 24, 2008) (no 

methodology demonstrated for “every exposure” theory); Free v. Ametek, No.:07-2-04091-SEA (Sup. Ct. Wash. 

Feb. 28, 2008) (“every exposure” theory not generally accepted in any field relevant to the case); Anderson v. 

Asbestos Corp., Ltd., et al., No. 05-2-04551-5 SEA (Wash. Super. Ct. Oct. 31, 2006) (“any exposure” not generally 

accepted in the scientific community.”); In re W.R. Grace & Co., 355 B.R. 462 (Bkrtcy. D. Del. 2006)(“each and 

every exposure” opinion is not sound or reliable); Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217, 1225 (D. 

Utah 2013)( “every exposure” testimony is “at most, scientifically-grounded speculation: an untested and potentially 

untestable hypothesis.”); Butler v. Union Carbide Corp., 310 Ga. App. 21, 29, 712 S.E.2d 537, 543 (2011); Brooks 

v. Stone Architecture, P.A., 934 So.2d 350 (Miss. Ct. App. 2006); Comardelle v. Pennsylvania General Insurance 

Company, et al., 76 F. Supp. 3d 628 (E.D. Louisiana 2015) (“each and every exposure” theory is unreliable and 

inadmissible); In re Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008, at *6-7 (Pa. Com. Pl. Aug. 17, 

2006); Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004) (“any exposure” theory is “not 

supported by the medical literature”); Smith v. Ford Motor Co., No. 2:08-cv-604, 2013 WL 214378 (D. Utah 2013); 

Sclafani v. Air and Liquid Systems Corp., 2013 WL 2477077, *4 (C.D. Cal. 2013) (“each and every exposure” 

theory not the product of reliable scientific techniques).

Case: 1:12-cv-00596 Document #: 65 Filed: 07/01/16 Page 14 of 16 PageID #:680
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Case No. 1:12-CV-00596

flawed “theory” that each exposure above ambient background level is significant, which is 

completely contrary to accepted scientific principles and which has been soundly rejected by 

courts throughout the country, including this district. As Westinghouse’s expert, Kyle Dotson, 

stated in his report, 

Since everyone has some exposure, it is not particularly helpful for industrial 

hygiene and/or medical experts to only opine if asbestos exposure occurred (i.e., 

yes or not, at some level above absolute zero). For asbestos, as well as other 

exposures, it is a fundamental tenet of toxicology that it is not enough to simply 

identify the presence of an exposure; rather, it is the cumulative quantity of 

exposure over time or dose that determines the risk.” 

Exhibit J at 3 (emphasis in original). Mr. Dotson cites scientific articles to back this accepted 

scientific knowledge. See id. at n. 23-24. By ignoring the generally accepted concept of dose, 

Mr. Garza reduces his analysis to an exposure test, and no matter what exposure is considered in 

his “model,” the result is always the same: the defendant’s product produced a “significant” level 

of airborne asbestos exposure. This is not science but simply a litigation technique. Accordingly,

this Court, as the gatekeeper of expert evidence, should shield the jury from hearing Mr. Garza’s 

unsupported, misleading, and speculative opinion testimony at trial.

CONCLUSION

WHEREFORE, for these reasons and the reasons stated in Westinghouse’s Motion to Bar 

Mr. Garza, Defendant Westinghouse respectfully requests that this Court bar Plaintiff’s expert, 

Mr. Garza, from expressing any opinions in Plaintiff’s case and grant such other relief that this 

Court deems just and proper. 

Case: 1:12-cv-00596 Document #: 65 Filed: 07/01/16 Page 15 of 16 PageID #:681
Page 16 of 16

Case No. 1:12-CV-00596

Respectfully submitted,

 By: /s/ William C. Foote

William C. Foote #6199467

wfoote@foleymansfield.com

Foley & Mansfield, PLLP

101 S. Hanley Road, Suite 600

St. Louis, MO 63105

Tel: (314) 925-5700

Fax: (314) 925-5701

Lawrence D. Wilson

LDWilson@ewhlaw.com

Evert Weathersby Houff

3455 Peachtree Road NE, Suite 1550

Atlanta, GA 30326

Tel: (678) 651-1200

Fax: (678) 651-1201

Attorneys for Defendant

CBS Corporation, a Delaware corporation, f/k/a 

Viacom, Inc., successor by merger to CBS 

Corporation, a Pennsylvania, f/k/a Westinghouse 

Electric Corporation

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was filed electronically with the 

Clerk of the Court using the CM/ECF system and is available for viewing and downloading from 

the CM/ECF system. The forgoing documents was served upon all counsel of record via the 

CM/ECF system on this 1st day of July, 2016. 

/s/ William C. Foote

Case: 1:12-cv-00596 Document #: 65 Filed: 07/01/16 Page 16 of 16 PageID #:682