1 

UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

________________________________________________________________________ 

LUELLA PEHLKE, Individually and as 

Special Administrator of the Estate of 

FRANK PEHLKE, Deceased, 

 Case No.: 12−cv−00596 

Plaintiff, 

Honorable Virginia M. Kendall 

v. 

CBS Corporation, 

 

Defendant. 

________________________________________________________________________ 

Motion to Limit Costs of Daubert Hearing 

_______________________________________________________________________ 

 Plaintiff moves this Court to enter a protective order to limit costs of the August 1, 2016, 

Daubert hearing based on the ruling of summary judgment ruling of Judge Robreno in MDL875, Seventh Circuit case law on the proper scope of a Daubert hearing inquiry, and available 

testimony from past depositions and reports by experts. 

Pursuant to Court order, Daubert motions are due by July 1, 2016 and a Daubert hearing 

is scheduled for August 1, 2016.1

 (ECF Doc # 38.) The expense to Plaintiff of the Daubert

hearing is a minimum of $30,000 for expert fees if, as CBS Corporation (“CBS”) has requested, 

four of Plaintiff’s five experts, must appear in Court. Plaintiff seeks by this motion to limit the 

costs of experts by determining which, if any, need to be scheduled in person. The cost of 

reserving the time of experts to appear, which must be done in advance, involves cancellation 

fees that exceed $10,000. Plaintiff also seeks to limit unnecessary costs of cancellation. 

 

1

 Plaintiff moved this Court to limit Daubert motions to non-dispositive matters on March 31, 

2016. (ECF Doc # 42.) The ultimate ruling on that motion is also relevant to the permissible 

scope of the Daubert hearing. 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 1 of 11 PageID #:366
2 

Importantly, industrial switchgear is a common piece of equipment built to a standard set 

of model number specifications. Westinghouse, for which CBS is a successor in interest, offered 

three basic lines of industrial switchgear – DB, DA, DH/DHP. The cost of the Daubert hearing 

personal appearances should be weighed in light of past testimony which exists on the same CBS 

models. All of Plaintiff’s experts - except for Dr. Bedrossian - testified multiple times about 

switchgear exposures in cases which involve CBS.2 To reduce costs of experts appearing at a 

hearing, those transcripts are available for this Court’s consideration if necessary. 

Daubert scope 

 The scope of the Daubert hearing in this case is limited by case law. The Court of 

Appeals for the Seventh Circuit held: 

• The “trial court is limited to determining whether expert testimony is pertinent to an 

issue in the case and whether the methodology underlying that testimony is sound.” 

Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) 

• “The district court usurps the role of the jury, and therefore abuses its discretion, if it 

unduly scrutinizes the quality of the expert's data and conclusions rather than the 

reliability of the methodology the expert employed.” Manpower, Inc. v. Ins. Co. of Pa.,

732 F.3d 796, 806 (7th Cir. 2013). 

• “Rule 702's requirement that the district judge determine that the expert used reliable 

methods does not ordinarily extend to the reliability of the conclusions those methods 

 

2

 Dr. Bedrossian has no personal knowledge of the construction of switchgear. His opinion is 

based on testimony by other witnesses and evidence establishing an environment in which the 

victim inhaled asbestos containing dust from the switchgear work over a long duration of time. 

See discussion below specific to Dr. Bedrossian. 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 2 of 11 PageID #:367
3 

produce—that is, whether the conclusions are unimpeachable." Id. (Quoting Stollings v. 

Ryobi Technologies, Inc., 725 F.3d 753, 765 (7th Cir. 2013).) 

• “The reliability of data and assumptions used in applying a methodology is tested by the 

adversarial process and determined by the jury; the court's role is generally limited to 

assessing the reliability of the methodology—the framework—of the expert's analysis.” 

Id. at 808. 

In light of this case law, Plaintiff counsel reached out to defense counsel and asked what 

the Daubert issues are to avoid unnecessary costs of scheduling expert witnesses to appear in 

Court. (Ex 1.) The response by defense counsel, discussed below, did not raise concerns related 

to expert methodology. (Ex 2). Instead, defense counsel expressed concerns about “quality” or 

“reliability” of the “data” and “assumptions” experts are relying upon to form conclusions about 

exposure and causation. The case law establishes these matters are not part of the Court’s gate 

keeping function under Seventh Circuit Daubert case law. Manpower, 732 F.3d at 806. CBS’s 

concern about sufficiency of evidentiary data on exposure and causation is also untimely because 

it was adjudicated in the asbestos MDL-875 order denying CBS’s summary judgment motion. 

The position of CBS is that exposures to dust from routine industrial switchgear 

maintenance does not produce dangerous levels of asbestos exposure which are a cause of 

mesothelioma. The argument was already rejected in this case by order entered on February 23, 

2015, by Judge Eduardo Robreno, the supervising judge in the asbestos MDL-875, denying the 

CBS motion for summary judgment. Judge Robreno held: “Defendant's motion for summary 

judgment is denied because Plaintiff has identified sufficient evidence to support a finding of 

causation with respect to switchgear manufactured by Defendant.” (Ex.3 at 10, ED PA Case 

2:12-cv-60049 Document 192.) In concluding the evidence about causation was sufficient, 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 3 of 11 PageID #:368
4 

Judge Robreno made specific findings about asbestos content of switchgear, exposure, and other 

evidentiary data, stating: 

There is evidence that Decedent was exposed to respirable dust blown out of 

Westinghouse switchgear during the period of about 1969 to 1980. There is 

evidence that the switchgear was of the DH or DHP series (because it was 

connected to motors and large pumps). There is evidence that this switchgear 

contained asbestos (because the evidence indicates that, until 1977, all DH and 

DHP series switchgear contained asbestos). (Moreover, there is evidence from 

expert Wineman that all switchgear in industrial and large commercial settings 

over 440 volts from 1945 to the early 1980s contained asbestos, and there is 

testimony from Decedent's co-worker that most of the switchgear was marked as 

"440 volts.") As such, a reasonable jury could conclude from the evidence that 

Decedent was exposed to asbestos from Westinghouse switchgear such that it was 

a "substantial factor" in the development of his illness. 

(Ex.3 at 10.) 

In light of the ruling by Judge Robreno, the law of the case is the data or evidentiary 

foundation is sufficient for Plaintiff’s experts to testify Frank Pehlke’s switchgear exposures 

were causative of his mesothelioma. Further inquiry related to data about causation and 

exposures from switchgear work can be conducted by cross examination at trial - and can be the 

subject of a directed verdict motion. However, the ruling of Judge Robreno forecloses the need 

for a Daubert hearing about foundational data for causation and exposure opinions. 

CBS has not suggested any concerns within the scope of the factors traditionally analyzed 

under Daubert. The Seventh Circuit held that “In Daubert, the Supreme Court outlined four 

factors that may be pertinent to the district court's analysis of expert testimony. Those traditional 

factors are: 1) ‘whether [the expert's theory] can be (and has been) tested’; 2) ‘whether the theory 

or technique has been subjected to peer review and publication’; 3) ‘the known or potential rate 

of error’; and 4) ‘general acceptance’ among the relevant scientific community.” Smith, 215 

F.3d 713 at 719. None of these factors are mentioned in the letter from defendants. 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 4 of 11 PageID #:369
5 

Communications with defendant about Daubert issues 

 Plaintiff communicated with CBS counsel in an attempt to determine the scope of CBS’s 

Daubert challenges on April 18, 2016. (Ex.1.) Plaintiff began by narrowing the experts it may 

call to “Huttner, Wineman, Abraham or Bedrossian, Kenoyer or Garza, and Brody.” (Ex.1.) 

Plaintiff has since determined that Dr. Bedrossian will be the medical witness and Dr. Abraham 

will not be called. CBS responded to Plaintiff’s communication on April 21, 2016 and provided 

identification of the “witnesses [CBS] will be challenging on the basis of Daubert.” (Ex.2.) 

Dr. Bedrossian 

Dr. Bedrossian is a board certified, Illinois licensed medical doctor who has authored 

many publications about asbestos diseases. CBS stated that “neither Dr. Abraham nor Dr. 

Bedrossian will or can opine as to a foundation that can eventually exhibit causation.” (Ex.2.) 

The cost of Dr. Bedrossian (offices in Oak Park, IL) to prepare and testify at a Daubert hearing is 

estimated to be $8-10,000. 

If the concern with Dr. Bedrossian’s testimony is only about “foundation” for a medical 

causation opinion, the matter was resolved at the dispositive motion stage by the finding of Judge 

Robreno about sufficiency of the causation evidence. A Daubert hearing is not needed on a 

matter which has been resolved. Because medical causation is a required element of proof for 

Plaintiff’s case, a Daubert finding excluding Plaintiff’s medical causation expert testimony is 

likely dispositive. Relitigation of a dispositive issue is barred by the dispositive motion deadline 

in MDL-875. 

Additionally, Dr. Bedrossian lacks personal knowledge about switchgear and relies for 

his opinion on the reports and testimony of other witnesses. Dr. Bedrossian is opining based on 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 5 of 11 PageID #:370
6 

hypothetical assumptions and data on duration of exposures that if asbestos is released from 

switchgear work and a dusty environment is created for over 500 hours, the exposures are a 

medical cause of decedent’s mesothelioma based on decedent’s medical records.3 The quality 

and reliability of the data and assumptions are not part of the Daubert inquiry. CBS took the 

deposition of Dr. Bedrossian in the Pehlke case and questioned him about his original report 

which has since been supplemented.4 The methodology of Dr. Bedrossian in attributing 

causation in the Pehlke case to the 500 hours of switchgear exposures is the same as for 

prolonged exposures to other products releasing dust containing asbestos and does not appear to 

be disputed.5

 

Kenoyer/Garza 

Plaintiff will use either Stephen Kenoyer or Ken Garza to testify at trial about industrial 

hygiene matters listed in the general and case specific reports they jointly signed on behalf of the 

Gobell Hays firm. (Ex.6; Ex.7.) Industrial hygienists provide opinions about asbestos fiber 

release, asbestos content of materials, exposures, and other matters. CBS claims that “neither 

Stephen Kenoyer nor Kenneth Garza adequately document the level of exposure experienced by 

Mr. Pehlke and their ability to express opinions on causation is limited because of that 

unreliability.” CBS took the deposition of Kenoyer in the Pehlke case and several depositions of 

Mr. Kenoyer in other switchgear cases about the joint general report and opinions he holds about 

 

3

 Dr. Bedrossian’s original and supplemental report are attached for this Court’s consideration. 

(Ex.4; Ex.5.) 

4

 Dr. Bedrossian’s list of testimony within the past 5 years filed in this case in 2012 lists more 

than 50 cases. Additional testimony has occurred since that time. 

5

 If CBS argues the “each and every exposure theory” is an improper theory under Daubert. 

Plaintiff will stipulate Dr. Bedrossian’s causation testimony will not involve such testimony. 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 6 of 11 PageID #:371
7 

exposures during the same routine work practices that occur during switchgear maintenance. 

The cost of Mr. Kenoyer or Mr. Garza to prepare and testify in person at a Daubert hearing is 

estimated to be over $11,000. 

While industrial hygienists do not offer medical testimony about causation, their 

testimony does explain the fiber release from which medical experts make the medical causation 

connection. The cost of a Daubert hearing is not proper concerning Kenoyer/Garza for several 

reasons. First, Judge Robreno in MDL-875 already has ruled evidence or data of asbestos fiber 

release is sufficient for causation to be determined by the jury. This ruling is controlling about 

the evidence of asbestos fiber release to which Kenoyer or Garza should be permitted to testify 

about at trial. The concerns of CBS about Kenoyer or Garza being unable to “adequately 

document the level of exposure” relate to the “quality of the expert's data and conclusions” or 

“reliability of data and assumptions” and fall outside the scope of Daubert inquiry about 

methodology. Manpower, 732 F.3d at 806, 808. CBS can cross examine at trial about the 

“documentation” being relied upon, but a Daubert hearing is not appropriate. Second, exclusion 

of industrial hygiene testimony is likely to be dispositive and cannot be relitigated after the 

MDL-875 deadline for dispositive motions passed. Third, Kenoyer and Garza’s general asbestos 

report provides a detailed discussion of asbestos-containing materials in electrical switchgears 

and bystander exposures with citation to scientific publications. (Ex 6 at 17-21, 12-14.) There 

has also been extensive deposition testimony about the switchgear exposures. Kenoyer and 

Garza’s April 1, 2016 report lays out the case specific evidence to support their conclusions that 

Pehlke’s role as a bystander to switchgear work created significant asbestos exposure. (Ex.7 .) 

This Court can assess the literature cited in the general report and the relationship to the case 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 7 of 11 PageID #:372
8 

specific report based on existing testimony and have the expert appear at the hearing by 

telephone if needed. 

Huttner 

CBS stated that “neither James Huttner nor Samuel Wineman are experts in any field that 

advance the issue(s) in the case.” (Ex.2.) Under Fed. R. Civ. P. 702, an expert witness can be 

qualified to testify as an expert based on their “knowledge, skill, experience, [and] training.” 

Huttner is a union trade electrician by training and experience who describes the 

procedures routinely used for switchgear maintenance and the customary deterioration observed 

of insulation materials within a year after the switchgear is put into service. He has been 

deposed three times by CBS counsel on the same basic report about the deterioration and 

maintenance procedures.6

 Another deposition specific to the Pehlke case demonstrative images 

is scheduled to be held on June 1, 2016.7 In light of the past testimony, this Court can assess any 

Daubert related concerns about Mr. Huttner’s expertise without him appearing in person. Since 

Huttner is within driving distance of the Courthouse and his hourly rate is considerably lower 

than the academic experts, he could prepare and appear in person for under $1,000 at a Daubert

hearing. 

 

6

 Huttner’s most recent revised report is attached as Exhibit 8. 

7

 The switchgear images are exhibits 9, 10, 11, 12, and 13. 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 8 of 11 PageID #:373
9 

Wineman 

CBS stated that “neither James Huttner nor Samuel Wineman are experts in any field that 

advance the issue(s) in the case.” (Ex.2.) Under Fed. R. Civ. P. 702, an expert witness can be 

qualified to testify as an expert based on their “knowledge, skill, experience, [and] training.” 

Wineman is a degreed licensed professional engineer who has also been retained by 

defense counsel about switchgear asbestos. He has served as project design manager for 

construction of large industrial facilities which included knowing the materials used for 

switchgear insulation. Wineman is over 80 years old and must travel from Florida to testify in 

person. His preparation time and personal appearance at a Daubert hearing are estimated to cost 

more than $6,000. Wineman’s report in this case and a previous deposition taken for trial are 

attached. (Ex.14; Ex.15.) Wineman was also deposed in the Pehlke case. 

Defendant’s claim that Wineman is not an expert “in any field that advances the issues in 

this case” is a relevance or qualifications objection which does not warrant a Daubert hearing. 

The relevance of Wineman’s testimony is specifically recognized in the opinion of Judge 

Robreno denying summary judgment. This Court should abide by the finding of relevance made 

by Judge Robreno. If the Court does need to review any portion of Wineman’s testimony under 

Daubert, Wineman has given at least four depositions where CBS counsel conducted cross 

examination. These depositions and his CV spell out his qualifications and basis for knowing the 

asbestos content of switchgear and the presence of asbestos in switchgear dust. This Court can 

also evaluate the testimony of Wineman in past cases and conduct further questioning by 

telephone if needed. 

Undue Burden 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 9 of 11 PageID #:374
10 

In the interest of conserving judicial resources and resources of the parties, this Court 

should consider the costs of the Daubert hearing and determine the extent of participation 

necessary from experts. The cost of having the four Plaintiff’s experts appear in person for a 

Daubert hearing exceeds $30,000. Experts must be scheduled in advance of appearances and 

cancellation fees are high. 

 

Relief Requested 

 Due to the costs involved it scheduling experts, this Court should make a determination 

about which experts should be subjected to a Daubert hearing based upon the ruling by Judge 

Robreno and Seventh Circuit case law spelling out the permissible areas of Daubert inquiry. 

Once this Court has determined the experts for whom proper Daubert concerns exist, the Court 

should determine, in light of the costs involved and available past testimony and reports, which 

experts should appear in person and which can appear by a telephone conference. 

Dated: May 27, 2016 

_/s/ Daniel B. Hausman___________ 

Attorney for Plaintiff 

Robert G. McCoy 

Daniel B. Hausman 

Cascino Vaughan Law Offices, Ltd. 

220 South Ashland Ave. 

Chicago, IL 60607 

(312) 944-0600 

(312) 944-1870 (fax) 

dhausman@cvlo.com 

 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 10 of 11 PageID #:375
11 

Certificate of Service

I hereby certify that on May 27, 2016, I caused the forgoing to be electronically filed with 

the United States District Court for the Northern District of Illinois using the CM/ECF system 

which will automatically send all necessary notifications of this filing to CM/ECF participants in 

this case. 

Dated: May 27, 2016 

_/s/ Daniel B. Hausman___________ 

Attorney for Plaintiff 

Daniel B. Hausman 

Cascino Vaughan Law Offices, Ltd. 

220 South Ashland Ave. 

Chicago, IL 60607 

(312) 944-0600 

(312) 944-1870 (fax) 

dhausman@cvlo.com 

Case: 1:12-cv-00596 Document #: 52 Filed: 05/27/16 Page 11 of 11 PageID #:376