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Ill. federal judge allows testimony that Kent cigarettes contributed to mesothelioma

By Heather Isringhausen Gvillo | Mar 7, 2014

CHICAGO (Legal Newsline) - An Illinois appellate judge denied a cigarette manufacturer's motions to bar two experts from testifying that the asbestos-containing "Micronite" filters once found in Kent cigarettes contributed to the claimant's mesothelioma.

Defendants Lorillard Tobacco Company and Hollingsworth & Vose, H&V, sought to bar the testimonies of plaintiff experts Dr. James Millette and Dr. Carl Brodkin.

Judge Joan B. Gottschall wrote in her Feb. 25 order that the testimonies are admissible under Federal Rule of Evidence 702 and the Daubert rule.

According to Rule 702, a qualified expert may testify if the expert's scientific knowledge will help the trier of fact better understand the evidence; the testimony is based on sufficient fact or data; the expert used proper methods; and those methods have been reliably applied to the case at hand.

Citing Daubert, Gottschall stated that the duty of the court is to determine reliability of the expert's principles and methods.

"What is important here is the soundness and care with which an expert arrived at her opinion, focusing on the principles and methodology, not the conclusion they generate," Gottschall wrote.

The complaint began in Cook County Circuit Court before Lorillard removed it to U.S. District Court for the Northern District of Illinois Eastern Division in April.

Plaintiff Marilyn Quirin, special representative of the estate of Ronald J. Quirin, is suing the defendants on a negligence theory, alleging Ronald Quirin's mesothelioma was caused by his exposure to asbestos while smoking Original Kent cigarettes between 1954 and 1956.

Sold by Lorillard, Kent cigarettes were manufactured with an H&V "Micronite" filter that contained crocidolite asbestos.

Quirin claims Kent cigarettes were a significant contributing factor to Ronald Quirin's mesothelioma and relies on Millette's and Brodkin's expert reports to support the argument.

Brodkin was retained in 2012 to provide an expert opinion regarding the cause of Ronald Quirin's mesothelioma, testifying that his exposure to asbestos from smoking was a significant factor and increased a risk of mesothelioma.

Brodkin reviewed Ronald Quirin's medical records, compiled his occupational and environmental histories and assessed the latency period between his asbestos exposures and the diagnosis of his mesothelioma.

Gottschall ruled that Brodkin is qualified to testify as to the connection between asbestos exposure and mesothelioma, including asbestos exposure from Kent cigarettes. Likewise, his knowledge will assist the trier of fact to understand the evidence, she ruled.

She added that Lorillard and H&V's arguments over methodology are more appropriate at trial "through a battle of the experts."

The defense contends that Brodkin's testimony is a variant of the "each and every exposure" theory, which implies that every exposure to asbestos is a substantial factor in causing mesothelioma. They add that the "each and every exposure" theory has been rejected by numerous federal and state courts as "unscientific and unsubstantial by evidence."

"Still other courts have distinguished testimony suggesting that a de minimus exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause," Gottschall wrote.

She added that the "each and every exposure" theory isn't Brodkin's testimony.

"He explicitly rejected a single fiber theory of causation. He believes Ronald experienced a significant exposure to asbestos by smoking thousands of Kent cigarettes," Gottschall wrote.

Millette was retained in 2010 to design a test intended to measure asbestos fiber release from two packs of Kent cigarettes from the 1952 to 1956 time period. He also planned to testify that Ronald Quirin would have been exposed to asbestos fibers released from original Kent cigarettes when smoked.

He provided studies analyzing the packages of cigarettes, the air filters and crepe paper.

He found that asbestos concentrations in the filters ranged from 20 to 40 percent in one and 10 to 20 percent in the other.

Measuring the number of asbestos fibers released when the cigarettes were smoked, Millette calculated a range of 0 to 56 fibers released per cigarette.

"It's my opinion that Mr. Quirin would have exposure from Kent cigarettes based on the tests that we did showing that fibers are released from Kent cigarettes during the smoking tests," Millette testified.

Gottschall held that according to the Daubert analysis, Millette is well qualified to offer an opinion regarding the types of fibers he observed in his tests.

Also meeting the requirements of Rule 702, Gottschall wrote that Millette's knowledge will help the trier of fact to understand the evidence.

"The issue of whether asbestos fibers were released from original Kent cigarettes when they were smoked is critical to Quirin's case," she wrote. "Lay persons will be unable to resolve this issued without scientific evidence."

The defense argues the cigarettes Millette used were more than 50 years old when they were analyzed for fiber release, claiming there is "no substantial similarity" between the cigarettes Millette examined and freshly manufactured cigarettes Ronald Quirin smoked.

"Lorillard and H&V argue that it is likely that the cigarettes and filters suffered significant degradation, and that they therefore did not function as they would have in the 1950s," Gottschall stated.

The defendants further point out that Millette recognized that the cigarettes were moldy or brittle, and argue the cigarettes' condition may have changed significantly over time.

"In the court's view, this is not a challenge to Dr. Millette's methodology, but rather a challenge to the information on which he relied in conducting his analysis and drawing his conclusions," Gottschall wrote.

"The question of whether an expert's 'theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based,'" she added.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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