Strong v. Genuine Parts Company

Opinion

1 2

3 4 EASTERN DISTRICT OF WASHINGTON 6

Individually and as Administrator of NO. 2:20-CV-0136-TOR 8 the Estate of Matthew W. Strong, Deceased, ORDER GRANTING IN PART Plaintiff, RESCIND 10 v. 11 HONEYWELL INTERNATIONAL, 12 INC., Individually and as Successor to Allied Signal, Inc. and The Bendix 13 Corporation,

14 Defendant. 15 BEFORE THE COURT is Plaintiff’s Motion to Rescind Court’s Order of 16 11/8/2021 and for a Daubert Hearing (ECF No. 162). This matter was submitted 17 for consideration with telephonic oral argument on March 2, 2022. John L. Steffan 18 argued on behalf of Plaintiff. Kevin P. Greene argued on behalf of Defendant. 19 The Court has reviewed the record and files herein, and is fully informed. For the 20 reasons discussed below, Plaintiff’s motion to rescind is granted in part. 2 This is a suit for damages brought by Kristina Strong, individually and as

3 Administrator of the Estate of Matthew T. Strong. Decedent Matthew Strong 4 developed peritoneal mesothelioma which Plaintiff alleges was caused by exposure 5 to asbestos-containing automotive friction products, including Bendix brand brakes

6 manufactured by Honeywell’s predecessor. See ECF No. 30 (Second Amended 7 Complaint). 8 On November 8, 2021, this Court excluded Plaintiff’s expert opinion 9 evidence of Drs. Tarin and Cohen concerning specific causation for failure to meet

10 the necessary threshold for admission under Daubert. See ECF No. 160. On 11 January 4, 2022, Plaintiff filed the present motion. ECF No. 162. The parties filed 12 their respective response and reply. ECF Nos. 171, 172.

14 A. Motion to Rescind 15 The Court “possesses the inherent procedural power to reconsider, rescind, 16 or modify an interlocutory order for cause seen by it to be sufficient.” City of Los

17 Angeles, Harbor Div. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) 18 (internal citation omitted). This power is derived from the common law, not the 19 Federal Rules of Civil Procedure. Id. at 886.

20 1 Based on a review of the arguments, the Court finds rescission appropriate. 2 In its prior Order, the Court reviewed the evidence relied on for the doctors’

3 opinion that inhalation of chrysotile asbestos in brake dust caused Plaintiff’s 4 peritoneal mesothelioma. ECF No. 160. The Court found many of the 5 publications unhelpful for the specific causation at issue, i.e. none of the proffered

6 publications demonstrate chrysotile asbestos in brake dust causes peritoneal 7 mesothelioma. Plaintiff complains that the Court addressed issues not briefed by 8 the parties. However, the parties’ briefing left the Court to ferret out the issue in 9 the first place. The Court agrees that Ninth Circuit precedent for toxic torts, as

10 cited in ECF No. 162, dictates that the doctors’ opinions be admitted. The 11 analytical gap between the publications and the doctors’ opinions is not too great to 12 warrant exclusion. Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir.

13 1998). Because the reasoning in each opinion is scientific and will assist the jury, 14 the parties’ dispute goes to the weight, rather than admissibility, of the opinions – 15 it is a matter for the jury to decide. Id. at 1230-31. Therefore, the Court finds the 16 opinions of Dr. David Tarin and Dr. Richard Cohen admissible under Daubert.

17 ACCORDINGLY, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion to Rescind Court’s Order of 11/8/2021 and for a 19 Daubert Hearing (ECF No. 162) is GRANTED in part. The Court finds

20 a Daubert Hearing unnecessary. 1 2. The Court’s November 8, 2021 Order (ECF No. 160) is RESCINDED. 2 3. Defendant’s Daubert Motion to Exclude Plaintiff's Experts’ Causation 3 Opinions and Request for Evidentiary Hearing (ECF No. 59) is 5 The District Court Executive is directed to enter this Order and furnish 6|| copies to counsel. 7 DATED March 8, 2022.

SZ Wriuin 0 Ket <= United States District Judge 10 11 12 13 14 15 16 17 18 19 20