UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

AMOS HOSTETLER, et al.,

Plaintiffs,

v.

JOHNSON CONTROLS, INC., et al.,

Defendants.

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Case No. 3:15-cv-226 JD

OPINION AND ORDER

In this order, the Court addresses the motion to strike the Plaintiffs’ expert opinions that 

they each face increased health risks due to exposures to contamination from the former Johnson 

Controls property. The Plaintiffs are five individuals who have lived in one or more homes near 

the site. They allege that during that time, they have been exposed to various contaminants that 

originated at the site, including TCE and PCE that migrated through the ground and produced 

vapors in their indoor air, and asbestos fibers that were released during demolition at the site and 

blew to their homes.

The Plaintiffs do not claim to have experienced any effects from those exposures to date. 

However, they offer opinions by three experts that they face increased risks of experiencing 

adverse health effects in the future as a result of those exposures. Dr. Orris is a medical doctor 

who addressed the cancer and non-cancer effects of TCE. Dr. Gilbert is an immunotoxicologist 

who addressed TCE’s effect on the immune system. And Dr. Spaeth is a medical doctor who 

addressed the effects of TCE, PCE, and asbestos. All three opine that the five Plaintiffs are each 

at an increased risk of various health effects due to their exposures. Johnson Controls argues that 

those opinions fail to satisfy Rule 702, primarily because the experts fail to bridge the gap 

between the substances’ ability to cause adverse effects in general, under some conditions, to a 

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risk posed to these five individuals given their particular exposures. The Court agrees and grants 

the motion.

A. Standard of Review

Rule 702 governs the admission of testimony by expert witnesses. Under that rule, a 

witness “who is qualified as an expert by knowledge, skill, experience, training, or education” 

may offer an opinion if the following criteria are met:

(a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the 

case.

Fed. R. Evid. 702.

A court has a gatekeeping role to ensure that expert testimony meets these criteria. 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. Textron, Inc., 

807 F.3d 827, 834–35 (7th Cir. 2015). The proponent of the expert testimony bears the burden of 

demonstrating that the testimony meets each of those elements. Varlen Corp. v. Liberty Mut. Ins. 

Co., 924 F.3d 456, 459 (7th Cir. 2019). However, a court does not assess “‘the ultimate 

correctness of the expert’s conclusions.’” Textron, 807 F.3d at 834 (quoting Schultz v. Akzo 

Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). Rather, a court must focus “solely on 

principles and methodology, not on the conclusions they generate.” Schultz, 721 F.3d at 432 

(quoting Daubert, 509 U.S. at 595). “So long as the principles and methodology reflect reliable 

scientific practice, ‘vigorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof are the traditional and appropriate means of attacking shaky 

but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).

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B. Analysis

The Plaintiffs offer three expert opinions that their exposures increased their risk of 

experiencing negative health effects in the future. Johnson Controls moved to strike each of 

those opinions. In their response, the Plaintiffs reframe and narrow the nature of their claims and 

the experts’ role in relation to those claims. To deflect Johnson Controls’ arguments that their 

experts failed to reliably address causation, the Plaintiffs disavow that their experts have offered 

opinions on general or specific causation, and argue that those subjects are not necessary to their 

claims for nuisance, trespass, or negligent infliction of emotional distress.

Even under the Plaintiffs’ description of those claims, though, it is hard to see how these 

experts’ opinions are relevant to some of them. The Plaintiffs assert, for example, that the 

opinions support their claim for trespass, which they argue requires only an unauthorized entry 

onto land, not any actual physical injury. Yet these experts don’t opine whether the substances 

entered the Plaintiffs’ properties; they opine that the Plaintiffs face an increased risk of adverse 

health effects due to their exposures to contamination, which the experts rely on other experts to 

establish. The Plaintiffs likewise argue that their emotional-distress claim requires only some 

sort of physical contact with a contaminant (or even just with a medium that has contained a

contaminant), and that these experts’ opinions satisfy that element. But again, the Plaintiffs fail 

to show how their experts’ opinions that they face future health risks pertain to whether they 

experienced such a physical contact; that’s a question of exposure, not risk of injury.

Regardless of how the Plaintiffs characterize their legal claims, that doesn’t change the 

opinions their experts actually offered. The Court must analyze those opinions, which are that the 

Plaintiffs each face an increased risk of adverse health effects due to their exposures. And those 

opinions each entail at least a general causation opinion: in order for the Plaintiffs to face an 

increased risk of developing adverse health effects, the exposures they experienced must be 

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capable of causing those effects. The experts must therefore have a reliable basis upon which to 

opine that each individual plaintiff’s exposure places that individual at an increased risk.

On that topic, Johnson Controls argues that none of the experts adequately connected the 

dots from the substances’ ability to cause certain effects given some amount of exposure, to the 

Plaintiffs’ risk of experiencing those effects given their particular exposures. Much of the 

experts’ reports discusses the effects that the substances can cause under some exposure 

conditions, as shown by various studies and other evidence. When it comes to translating those 

possible effects to the Plaintiffs’ risks, though, the reports rely almost exclusively on regulatory 

values. Because contamination has been measured or estimated in the Plaintiffs’ homes in 

amounts that exceed those levels, the experts opine that the Plaintiffs all face increased health 

risks from their exposures.

This approach poses multiple problems that fatally undermine the reliability of these 

analyses. First, courts routinely condemn experts’ reliance on regulatory values when attempting 

to evaluate the risk posed to a particular individual: “exceedance of government regulation, as 

we’ve held before, does not by itself prove causation.” C.W. ex rel. Wood v. Textron, Inc., 807 

F.3d 827, 838 (7th Cir. 2015); see also Cunningham v. Masterwear Corp., 569 F.3d 673, 675 

(7th Cir. 2009); C.W. v. Textron, Inc.,

1 No. 3:10-cv-87, 2014 WL 1047940, at *5 (N.D. Ind. Mar. 

17, 2014) (“[Reliance on regulatory standards] alone is an improper basis for an expert opinion, 

for mere exposure to toxins in excess of regulatory levels is insufficient to establish causation.”). 

As Judge Simon discussed in Textron, “The rationale for this is understandable: ‘regulatory 

1 In Textron, the experts’ opinions included that the plaintiffs’ exposures “presented[ed] an 

unacceptable risk of cancer in the future” and put them “at an increased risk of cancer.” 2014 

WL 1047940, at *4, 11. The Plaintiffs’ attempt to distinguish that case on the basis that their 

experts here address only the risk of future injury, not the cause of a manifested injury, thus falls 

flat.

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agencies are charged with protecting public health and thus reasonably employ a lower threshold 

of proof in promulgating their regulations than is used in tort cases.’” Textron, 2014 WL 

1047940, at *5 (quoting Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865, 880 (S.D. Ohio 

2010)).

When faced with uncertainties (like how an effect observed in animals might translate to 

humans), agencies draw conservative assumptions to ensure that the levels they adopt protect the 

health of the public at large. See Bernard D. Goldstein, Reference Guide on Toxicology, in Fed. 

Judicial Ctr., Reference Manual on Scientific Evidence 633, 649–50 (3d ed. 2011) (“Because of 

their use of appropriately prudent assumptions in areas of uncertainty and their use of default 

assumptions when there are limited data, risk assessments often intentionally encompass the 

upper range of possible risks.”). [See also DE 394-17 p. 75 (“ATSDR uses a conservative (i.e., 

protective) approach to address these uncertainties consistent with the public health principle of 

prevention. . . . In the absence of evidence to the contrary, ATSDR assumes that humans are 

more sensitive than animals to the effects of hazardous substances that certain persons may be 

particularly sensitive. Thus the resulting MRL [minimal risk level] may be as much as a 

hundredfold below levels shown to be nontoxic in laboratory animals.” (quoting Minimal Risk 

Levels (MRLs) – For Professionals, https://www.atsdr.cdc.gov/mrls/index.asp)), p. 76 (“Because 

of conservative models used to derive [cancer slope factors] and IURs, using this approach 

provides a theoretical estimate of risk; the true or actual risk is unknown and could be as low as 

zero.”) (alteration in original)]. But plaintiffs who bear the burden of proof must confront those 

uncertainties and offer a reliable basis to conclude—not merely assume—that the exposures in 

question actually pose a risk to their health.

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Regulatory levels are not meant to represent thresholds for adverse effects, either, but to 

reflect concentrations known to be safe even for the most at-risk populations, with margins built 

in for safety.2 That the most at-risk population would not face an increased risk even with a 

lifetime of exposure to a given concentration (which is what the Reference Concentration 

reflects, for example), does not mean that a particular individual would face an increased risk 

from any exposure above that concentration. While it is appropriate for regulatory agencies to 

rely on those values in ensuring the safety of populations as a whole, experts who seek to 

determine whether a particular individual faces an increased risk from a particular exposure must 

do more than merely compare an exposure to a regulatory value. See Textron, 807 F.3d at 838; 

Cunningham, 569 F.3d at 675.

3 Courts thus routinely hold that “to the extent that [an expert’s] 

opinions are based on exceedance of regulatory standards, they are not admissible.” Textron, 

2014 WL 1047940, at *14. Even though Johnson Controls heavily relied on this point in its 

motion, and even though the Plaintiffs argue that their experts’ opinions are reliable based on 

their use of regulatory values, the Plaintiffs failed to meaningfully argue otherwise in their 

response.

2 Even one of the sources Dr. Gilbert relied on makes this abundantly clear: “The EPA/MassDEP 

exposure guideline of 2 μg/m3 is set well below levels expected to result in health effects and is 

designed to protect the most sensitive individuals.” Trichloroethylene (TCE) in indoor air, 

https://www.mass.gov/service-details/trichloroethylene-tce-in-indoor-air (last visited Sept. 7, 

2020) (cited at DE 394-4 p. 18).

3 See also Reference Guide on Toxicology, p. 665–66 (“Particularly problematic are 

generalizations made in personal injury litigation from regulatory positions. Regulatory 

standards are set for purposes far different than determining the preponderance of evidence in a 

toxic tort case. . . . [I]t must be recognized that there is a great deal of variability in the extent of 

evidence required to support different regulations. . . . In addition, regulatory standards 

traditionally include protective factors to reasonably ensure that susceptible individuals are not 

put at risk. Furthermore, standards often are based on the risk that results from lifetime exposure. 

Accordingly, the mere fact that an individual has been exposed to a level above a standard does 

not necessarily mean that an adverse effect has occurred.”).

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Even if regulatory values could be used to assess individual risk, the experts would still 

have to reliably apply those levels to a particular individual’s exposure in order to offer opinions 

about whether that individual faces an increased risk. Regulatory values generally assume 

lifetime exposure. A Reference Concentration, for example, assumes that an individual is 

continuously exposed to a given concentration every hour of the day, every day of the year, for 

70 years. [DE 394-17 p. 73; 394-4 p. 20]. None of the Plaintiffs were exposed for that duration. 

Yet, none of the experts offered any analysis to extrapolate those values to the Plaintiffs’ 

exposures. More, the experts appeared under the misimpression that Dr. Keramida had 

conducted a dose-and-duration analysis for the Plaintiffs’ exposures, when she did no such thing. 

Instead, her opinion estimated only the indoor air concentrations in the Plaintiffs’ homes.

Though she noted the number of years each Plaintiff lived in each home, neither she nor any of 

these experts considered the amount of time any Plaintiff spent indoors being exposed to those 

concentrations during those periods, nor did they attempt to compare the resulting exposure to 

any regulatory values. Without having even considered the duration of any of the Plaintiffs’ 

exposures, these experts were not comparing apples to apples in relying on the regulatory values.

Textron, 2014 WL 1047940, at *7 (“Ignoring the dose . . . is a critical error. This is because, as 

one commentator has put it, ‘the dose makes the poison.’”).

An expert cannot avoid that problem by asserting that there is no safe level of exposure, 

either. As the Seventh Circuit recently observed, “more than thirty other federal courts and state 

courts have held that this cumulative/‘any exposure’ theory is not reliable.” Krik v. Exxon Mobil 

Corp., 870 F.3d 669, 677 (7th Cir. 2017); see also Moeller v. Garlock Sealing Techs., LLC, 660 

F.3d 950, 955 (6th Cir. 2011). First, to the extent these assertions rest on the lack of scientific 

proof that a de minimis exposure cannot cause cancer, they get the burden of proof backwards. 

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[See DE 394-2 p. 12 (Dr. Orris: “[T]here is no data to support a level below which no health 

risks are expected.”)]. An inability to prove that a particular exposure is “safe” is not the same as 

proof that exposure at that level has a causal connection to adverse effects. Anderson v. Ford 

Motor Co., 950 F. Supp. 2d 1217, 1224 (D. Utah 2013). Second, even assuming that exposure to 

a single molecule of a substance may theoretically be capable of causing a cancer, the law does 

not provide recovery for remote, speculative, theoretical possibilities.4 Merely pointing to a 

theoretical possibility that even the most minute exposure may be able to cause a cancer fails to 

establish that a given individual has suffered a cognizable harm. See Krik, 807 F.3d at 677.

Take, for example, the Inhalation Unit Risk, on which each of the experts rely. That value 

provides an estimate of the increased cancer risk from a lifetime of exposure to a given substance 

at a concentration of 1 μg/m3

. For PCE, that exposure is estimated (at the upper bound) to cause 

0.26 cancers over a lifetime in a population of 1 million people. [DE 394-3 p. 10]. In other 

words, a person with a lifetime of exposure at that level has a 99.999974 percent chance of never 

getting cancer from that exposure; few things in life are as certain not to happen. An expert who 

opines that an individual faces an unquantified increased risk of cancer because even the most 

minute exposure is theoretically capable of causing cancer, without offering a basis upon which 

to assess the magnitude of the risk, is simply not offering an opinion that is useful to the 

4 It is unclear if Indiana would even recognize a claim for damages for medical monitoring based 

on an increased risk of future injury. See AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068, 1075 (Ind. 

2003) (noting that a product liability claim does not accrue upon mere exposure to asbestos); 

Allgood v. Gen’l Motors Corp., No. 102cv1077, 2005 WL 2218371, at *5–7 (S.D. Ind. Sept. 12, 

2005) (concluding that Indiana law would allow recovery of medical monitoring costs for a risk 

of future injury as relief on tort claims). But even the states that do allow such a claim generally 

require that a plaintiff have a “significantly increased risk of contracting a serious latent disease.”

In re Marine Asbestos Cases, 265 F.3d 861, 866 (9th Cir. 2001).

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decisional process. Krik, 870 F.3d at 677–78. And again, even though this was a principal basis 

for Johnson Controls’ motion, the Plaintiffs did not meaningfully argue otherwise in response.

Dr. Orris’ report presents the clearest case of these problems. Much of his report is 

devoted to discussing effects that TCE can produce under some conditions. The report offers 

only cursory discussion when it comes to translating that to an increased risk for the five 

Plaintiffs here, though. On that topic, all the report does is note the measured5 or estimated levels 

of TCE in the Plaintiffs’ homes, then note regulatory levels for cancer and non-cancer effects

(the Inhalation Unit Risk and Reference Concentration, respectively), and then assert without 

further explanation that the Plaintiffs “are now at an increased risk of cancer and other negative 

health effects due to their exposure to TCE.” [DE 394-2 p. 12–13, 16]. In other words, the only 

basis Dr. Orris offers for extrapolating the Plaintiffs’ exposures to their increased risk is an 

exceedance of regulatory standards. That is not a reliable methodology. Textron, 807 F.3d at 838 

(“[E]xceedance of government regulation, as we’ve held before, does not by itself prove 

causation. The district court did not abuse its discretion in rejecting this methodology.” (citation 

omitted)).

Nor did Dr. Orris consider the amount of time any Plaintiff was exposed. His report 

incorrectly asserts that “Dr. Keramida has predicted the dose and duration of TCE exposure for 

each of the five Plaintiffs,” when all she did was estimate the indoor air concentrations of TCE, 

5 Dr. Orris’ statement that the sampling data independently supports his opinion is also curious 

and unsupported by any analysis in his report. His report notes the range of indoor air 

measurements in “the Class Area,” but this is not a class action; his report is meant to address the 

risks faced by the five individual plaintiffs in this suit. Some of the plaintiffs have never had 

TCE detected in their homes anywhere near the regulatory levels Dr. Orris cites. For example, 

Ms. Tovar’s home has had TCE detected only once out of more than a dozen tests, in an amount 

of 0.18 μg/m3

, over an order of magnitude below the Reference Concentration Dr. Orris relies 

on. Dr. Orris’ report does not explain how that sampling data supports his opinion that Ms. Tovar 

faces an increased risk of non-cancer effects.

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not their exposures to it. [DE 394-2 p. 12]. Thus, Dr. Orris did not reliably extrapolate either of 

the regulatory values (both of which assume continuous exposures for a lifetime) to the 

Plaintiffs’ particular exposures. The only other basis for Dr. Orris’ opinions is the assertion that 

there is no safe dose for exposure to TCE, such that even the most minute exposure necessarily 

places an individual at an increased risk of cancer. For the reasons already explained, that nosafe-dose opinion is not helpful in evaluating the extent to which these specific individuals have 

a cognizable risk due to their specific exposures. Nor has Dr. Orris identified a reliable basis for 

concluding that any exposure, no matter how small, has been shown to have a causal connection 

to a detectable increase in the risk of adverse health effects.

6 The Plaintiffs therefore have not 

shown that Dr. Orris’ opinions satisfy Rule 702’s reliability criteria.

Dr. Gilbert’s opinions, which focus on immunological risk from TCE, are little different. 

Her report discusses at length various evidence that exposures to TCE can cause autoimmune 

diseases. Her report offers no reliable basis, though, for extrapolating TCE’s ability to cause 

those effects under some circumstances, to its ability to cause those effects to these Plaintiffs 

under their circumstances. While she cites and discusses various studies on TCE’s ability to 

cause certain effects, she never attempts to explain how any of those studies would support a 

finding that these Plaintiffs are at risk of those effects given their exposures. Instead, like Dr. 

Orris, the only evidence her report discusses for comparing these Plaintiffs’ exposures to a level 

at which a risk occurs is regulatory levels, like the Reference Concentration and Inhalation Unit 

Risk. As already discussed, those levels do not present a reliable basis for identifying an 

increased risk in a particular individual. Also like Dr. Orris, Dr. Gilbert’s report never considers 

6 Even the Plaintiffs’ argument in defense of this opinion states that “every exposure carries 

some theoretical risk of cancer.” [DE 399 p. 26 (emphasis added)].

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the Plaintiffs’ actual exposures so as to compare them to the regulatory levels, either. The 

regulatory levels thus cannot support Dr. Gilbert’s opinions for that independent reason.

The only discussion Dr. Gilbert’s report offers to address the length of the Plaintiffs’ 

exposures was based on the contamination at Camp Lejeune, where very heavy contamination by 

TCE and other chemicals was discovered in the drinking water in the 1980s. Dr. Gilbert notes 

that the Department of Veterans Affairs has stated that veterans and their families may qualify 

for health benefits if they have been diagnosed with one of a number of diseases and had at least 

30 days of exposure at Camp Lejeune. She asserts that this assumption of fiscal responsibility is 

based on “the assumption” that even short exposures can increase health risks. [DE 394-4 p. 25]. 

First, though, the Plaintiffs offer no reason to believe that a legislative decision to grant health 

benefits to veterans and their families is the type of evidence a toxicologist would rely on in 

reaching conclusions about causation. And second, they have not shown that Dr. Gilbert reliably 

extrapolated from those circumstances to any risks that may be posed here. The Camp Lejeune 

contamination involved multiple different contaminants in the drinking water, whereas Dr. 

Gilbert’s opinion here addresses the effect of TCE in indoor air. Dr. Gilbert’s report offers no 

explanation to bridge the gap from the types and amounts of exposures there to the exposures 

here.

Dr. Gilbert’s report also relies on sources of exposure that are not even present. She 

writes, for example, that all five Plaintiffs face increased risk because they were exposed to high 

concentrations of TCE in the soil, groundwater, and surface water. [DE 394-4 p. 22–23, 25 

(“Thus, the plaintiffs were living in an area where the levels of TCE in the soil were higher than 

human health guidelines for non-cancer effects; thus increasing the likelihood that they would 

manifest such effects.”)]. She does not identify any evidence that any Plaintiff has been exposed 

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to contamination in that manner, though. She also relies on elevated levels of TCE in the subslab soil gases. Again, however, there is no suggestion that any Plaintiff has inhaled sub-slab soil 

gases; the Plaintiffs’ theory is that they breathed vapors inside their homes.7

Dr. Gilbert also notes that one of the Plaintiffs (Ms. Null) lived in the neighborhood 

before the homes were connected to municipal water lines, such that she could have been 

exposed to contaminated drinking water if her well was contaminated. Her report only cites 

levels of contamination of other wells some distance away, though. [DE. 394-4 p. 22]. It does not 

identify the level of contamination in Ms. Null’s well that Dr. Gilbert was basing her opinion on 

or how much exposure Ms. Null had to that contamination. And notably, an actual test of Ms. 

Null’s well water detected no TCE within the reporting limits. [DE 394-7]. Dr. Gilbert’s report 

also discusses potential impacts of exposure to multiple toxins, but her report does not appear to 

rely on that analysis; it concludes that “little is known about the impact of co-exposure to TCE 

and other chemicals such as PCE in humans,” and that “little is known about their combined 

effects.” [DE 394-4 p. 28].

In defending Dr. Gilbert’s opinions, the Plaintiffs rely heavily on Kirk v. Schaeffler Grp. 

USA, Inc., 887 F.3d 376 (8th Cir. 2018). That decision affirmed the admission of opinions by Dr. 

Gilbert in another case, but that decision is of little use, as the circumstances and Dr. Gilbert’s 

opinions were quite different than here. In Kirk, the plaintiff developed a rare auto-immune 

disease after living in an area heavily contaminated with TCE. Dr. Gilbert opined that TCE was 

capable of causing that disease, and she conducted a differential etiology and offered a specific 

causation opinion that the contamination caused that disease. 887 F.3d at 390–92. But here, Dr. 

7 To the extent Dr. Gilbert was suggesting that the sub-slab vapors would reach the indoor air at 

an increased level, that is not a matter within her expertise.

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Gilbert did not conduct a differential etiology and is not offering a specific causation opinion, 

nor have any of the Plaintiffs manifested any disease.

Also, while Dr. Gilbert did not identify a particular amount of exposure for the plaintiff 

in Kirk, that step was unnecessary to her analysis. The plaintiff had already manifested a disease. 

It was also a rare disease, one that was capable of being caused by TCE, and which manifested 

after exposure to high levels of contamination for many years. Those factors allowed Dr. Gilbert 

to opine that the exposure caused that rare disease. Id. Here, though, none of the Plaintiffs have 

manifested any illness, so Dr. Gilbert cannot rely on the illness to infer exposure to sufficient 

quantities. Instead, she has to reliably connect the dots between these Plaintiffs’ exposures and 

their future risks of experiencing effects that have yet to manifest themselves. As already 

discussed, she has not done so. The Court therefore grants the motion to exclude Dr. Gilbert’s 

opinions as well.

Dr. Spaeth’s opinions, addressing the risks posed by exposures to TCE, PCE, and 

asbestos, suffer from the same shortcomings. As to TCE and PCE, his analysis parallels Dr. 

Orris’ and Dr. Gilbert’s. He discusses various evidence that TCE and PCE are carcinogenic and 

can have other toxic effects. But to conclude that these Plaintiffs are at risk of suffering those 

effects, all he does is note various regulatory levels and then the sampling data and Dr. 

Keramida’s estimates about the indoor air concentrations in the Plaintiffs’ homes.

8 Like the other 

experts, he does not consider the duration of any of the Plaintiffs’ exposures so as to compare 

them to the regulatory levels, either.

8 The Plaintiffs also argue based on Dr. Spaeth’s deposition testimony that he also relied on 

studies of human exposures to TCE at levels comparable to the Plaintiffs’ neighborhood. His 

report, however, offers no discussion of the levels of exposure in those studies or how they 

compare to the exposures for these five Plaintiffs.

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Dr. Spaeth’s opinions as to asbestos suffer from an even more fundamental problem, 

which is that the Plaintiffs offer no evidence whatsoever about how much asbestos any of them 

were exposed to. The Plaintiffs were clear on that point in responding to the motion to strike 

their exposure experts: “Rechtin and Giddens were not tasked with quantifying the amount of 

asbestos released from the Site or the amount to which the Plaintiffs were exposed; instead they 

confirmed that Plaintiffs were exposed to asbestos fibers from the Site.” [DE 388 p. 20 n.4].

Though Dr. Spaeth offers some discussion about how the Plaintiffs might have been exposed to 

asbestos, ultimately he bases his opinion on the assumption that “their exposure was above 

background.”9 [DE 394-3 p. 23].

Since those opinions offer nothing more than that the Plaintiffs were each exposed to at 

least one asbestos fiber from the site, the only basis to opine that the Plaintiffs are at increased 

risk is to assert that every exposure to any single asbestos fiber increases a person’s risk. As 

already discussed, that no-safe-dose opinion is not reliable and helpful in evaluating the extent to 

which these Plaintiffs’ exposures put them at an increased risk. Anderson, 950 F. Supp. 2d at

1223 (excluding such an opinion where the plaintiffs’ experts were “unable to point to any 

studies showing that ‘any exposure’ to asbestos above the background level of asbestos in the 

ambient air is causal of mesothelioma,” but instead “base their opinion on the fact that scientists 

have been unable to determine a safe level for exposure to asbestos”). That is particularly so 

when asbestos is a naturally occurring substance and asbestos fibers are commonly present in the 

air, as even Dr. Spaeth discusses. [DE 394-3 p. 19–20]. Dr. Spaeth’s opinions that the Plaintiffs 

9 To the extent Dr. Spaeth offers his own opinion that the Plaintiffs were exposed to asbestos 

(based on inappropriate demolition practices and the wind direction, among other factors) rather 

than explaining his reliance on other experts for that point, that is plainly a matter outside his 

expertise as a medical doctor.

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each face increased risk of health effects from TCE, PCE, and asbestos, and therefore need 

ongoing medical monitoring, thus fail to satisfy Rule 702.

Because none of these experts’ opinions that the Plaintiffs each face an increased risk of 

health effects satisfy Rule 702, the Court grants Johnson Controls’ motion to exclude those 

opinions. It is unclear to what extent the Plaintiffs may still seek to offer these experts’ 

foundational opinions, such as on whether these substances can cause cancer or other effects 

under some circumstances, or the regulatory standards for those substances. While that testimony 

might raise issues of relevance and prejudice, as Johnson Controls alludes to in its reply, Johnson 

Controls did not challenge those discussions under Rule 702’s reliability prongs. Relevance and 

prejudice are best addressed when the Court can evaluate the specific testimony at issue and the 

specific purpose for which it is offered, so the Court does not address those issues at this time.

C. Conclusion

The Court grants Johnson Controls’ motion to exclude these three experts’ opinions that 

the Plaintiffs are at an increased risk of adverse health effects. [DE 394].

SO ORDERED.

ENTERED: September 16, 2020

 /s/ JON E. DEGUILIO 

Chief Judge

United States District Court

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