in the united states bankruptcy court for … the western district of north carolina charlotte...

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA

Charlotte Division

IN RE:

GARLOCK SEALING TECHNOLOGIES LLC, et al.,

Debtors.1

Case No. 10-BK-31607

Chapter 11

Jointly Administered

DEBTORS’ BRIEF IN SUPPORT OF ITS MOTION TO EXCLUDE OR STRIKE

COMMITTEE INDUSTRIAL HYGIENE WITNESS OPINIONS

1 The debtors in these jointly administered cases are Garlock Sealing Technologies LLC (“Garlock”); Garrison Litigation Management Group, Ltd. (“Garrison”); and The Anchor Packing Company (hereinafter, collectively, “Debtors”). The Official Committee of Asbestos Personal Injury Creditors is referred to as the “Committee.”

Case 10-31607 Doc 4463 Filed 04/01/15 Entered 04/01/15 14:20:07 Desc Main Document of 69

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Table of Contents

Table of Authorities ........................................................................................................................ v

I. Introduction ......................................................................................................................... 1

II. Specific Opinions Challenged and Materials Supporting this Motion ............................... 4

III. Application of the Daubert Standard to Longo’s and Templin’s Opinions ........................ 7

A. Daubert Emphasis on Rigorous Compliance with Appropriate Methodology .. 7

B. Daubert Factors Are Applied with Greater Rigor to Litigation-Generated Opinions Like Longo’s ...................................................................................... 8

IV. Longo’s and Templin’s Opinions Are Not Based On Sufficient Facts or Data and Cannot Help the Court Determine the Facts at Issue in This Case. ................................................ 9

V. Longo’s Opinions Are Not Relevant to This Case Because They Are Based on Gasket Experiments Using Tools, Methods, and Gaskets Which Are Fundamentally Dissimilar to Real World Work Practices. ............................................................................................. 10

A. Longo’s Experiments Are Not Representative of Real World Work .............. 11

B. The Gaskets Longo Uses Are Not of the Condition in Which Typical Claimants Would Have Encountered Gaskets in The Real World. ................. 14

VI. Longo’s Gasket Experiments Are Unreliable Because They Fail to Adhere to Accepted Scientific Methodologies for Collection and Analysis of Air Samples. ........................... 15

A. Samples from Two Gasket Experiments Were Swapped, Causing Results to be Reported Inaccurately in Longo’s Published Paper. ........................................ 16

B. Longo’s Lab Did Not Use Accepted Methods to Collect and Analyze the Samples Taken During His Gasket Experiments. ............................................ 18

1. Failure to follow NIOSH 7400 quality control procedures in the early gaskets experiments, including published experiments ....... 20

2. Failure to follow NIOSH 7402 magnification requirements in later experiments ................................................................................... 21

3. Failure to follow the NIOSH 7402 3-grid preparation standard ... 21

4. Inaccurate Reporting of Data ........................................................ 22

5. Rounding in unscientific ways ...................................................... 23

6. Misidentification of Asbestos Fiber Type..................................... 25

7. Failure to adhere to NIOSH 7402 counting rules ......................... 26

8. Failure to adhere to protocols specified in the study design ......... 26


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9. Neglecting to activate pumps at the start of Work Practice Study V (and providing false testimony about this error in 2010) .............. 27

10. Losing a sample during Work Practice Study III – Electric Wire Brushing ........................................................................................ 29

11. Failure to notice and remedy a malfunctioning pump during sampling ........................................................................................ 29

12. Methodological flaws in the MAS Spiral Wound Gasket Removal Study ............................................................................................. 30

13. Reliance on indirect TEM method ................................................ 30

14. Reliance on isolated samples of atypical activities over peer-reviewed studies ............................................................................ 31

15. Improper pump calibration ........................................................... 32

C. Longo’s Inconsistent Results Evince Their Unreliability ................................ 32

D. Longo’s Use of Tyndall Lighting is Mere Trial Theatrics, and Not a Scientifically Valid Asbestos Exposure Assessment Method. ......................... 33

1. Longo’s new “Pouring of Raw Chrysotile” experiment does not support his claims. ........................................................................ 36

2. Longo’s new “Cigarette Smoke” experiment does not support his claims. ........................................................................................... 37

VII. False and Misleading Representations Pervade Longo’s Expert Report and Rebuttal Report, Demonstrating Both Lack of Intellectual Rigor and Lack of Candor. ................. 38

A. Longo’s Lack of Candor in His Attempt to Rebut Debtors’ Experts ............... 39

B. False Statements about an Electric Grinder’s Capability of Damaging Flanges .......................................................................................................................... 40

C. Untrue Statements about Pipefitters and Machinists’ Exposure to Thermal Insulation .......................................................................................................... 41

1. Permanent asbestos insulation was commonly used on Navy ships until 1972. ..................................................................................... 42

2. Longo is wrong about the types of insulation covering valves onboard the USS Lexington. ......................................................... 42

3. Longo’s recent insulation “cut-back” removal experiment is not representative of real world work ................................................. 44

4. Longo is wrong in his accusations of Dr. Still’s supposed failure to disclose the existence of portable pads ......................................... 44


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D. Misleading Statements about the Presence of Amphiboles in Garlock Gaskets .......................................................................................................................... 46

E. Cherry-Picking Data from the U.S. Navy Study .............................................. 47

F. Examples of Absolute Statements Made By Longo Which Are False ............ 48

G. Additional Untrue Statements .......................................................................... 50

VIII. Templin’s Opinions are Unreliable Because He Fails to Require the Studies Upon Which He Relies to Follow Accepted Scientific Methodologies. ................................................ 50

A. Using Only “General Accordance” with Accepted Methodology ................... 50

B. Misunderstanding of NIOSH 7402 Magnification Requirements ................... 51

IX. Templin Misrepresents Data in His Report, Demonstrating a Lack of Candor that Warrants Exclusion of his Opinions. ................................................................................ 52

A. Misrepresentation of Fiber Release Data from Gaskets and Packing .............. 52

B. Misrepresentation of the National Research Council’s Data for Nonoccupational Environmental Exposure Levels .......................................... 54

C. Templin’s Insupportable Attack on Exposure Science .................................... 55

D. Templin’s Misstatements on Epidemiology and Methodology for Causation Determinations ................................................................................................. 56

1. Insupportable opinions about the Bradford Hill Criteria. ............. 56

2. Espousing an “every exposure contributes” opinion on causation that has been rejected by the courts .............................................. 57

3. Lack of knowledge on statistical significance .............................. 58

E. Templin’s Insupportable Attack on Historical Statements about the Lack of Health Hazard in Gasket Use ........................................................................... 59

F. Templin’s Insupportable Reasons for Rejecting the U.S. Navy Study ............ 59

X. Conclusion ........................................................................................................................ 60


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Table of Authorities

Cases

Amorgianos v. National R. R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002) ...................... 14, 21

Barbain v. Asten Johnson, Inc., 700 F.3d 428 (9th Cir. 2012), reh’g en banc granted, 710 F.3d

1074 (9th Cir. 2013) .......................................................................................................... 11

Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004), aff’d sub nom ..................... 63

Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) ...................................................................... 63

Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) ........................................................ 63

Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006) ................................. 63

Butler v. Union Carbide Corp., 712 S.E.2d 537 (Ga. Ct. App. 2011) .......................................... 63

Chase v. General Motors Corp., 856 F.2d 17 (4th Cir. 1988) ................................................ 17, 38

Claar v. Burlington Northern R. Co., 29 F.3d 499 (9th Cir. 1994) .............................................. 58

Cooper v. Smith & Nephew, Inc., 259 F.3d 194 (4th Cir. 2001) ............................................ 13, 20

Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir. 1995) (“Daubert II”) ........... 14

Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) .................................. passim

Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. App.), cert. granted, 55 A.3d 906 (Md. 2012) .... 63

Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000) ................................................................... 38

Frischhertz v. SmithKline Beecham Corp., 2012 U.S. Dist. LEXIS 181507 (E.D. La. Dec. 21,

2012) ................................................................................................................................. 62

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) ....................................................................... 22, 34

Gladhill v. General Motors Corp.,743 F.2d 1049 (4th Cir. 1984) ......................................... 17, 38

Gregg v. V-J Auto Parts, Inc., 943 A.2d 216 (Pa. 2007) .............................................................. 63


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Hoffman v. Ford Motor Co., 493 F. App’x 962 (10th Cir. 2012) cert. denied, 12-889, 2013 WL

230247 (U.S. May 28, 2013) ...................................................................................... 17, 38

In re Armstrong World Indus., Inc., 285 B.R. 864 (Bankr. D. Del. 2002) ............................... 9, 36

Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426 (6th Cir. 2007) ................................ 7, 14

Junk v. Terminix Int'l Co., 628 F.3d 439 (8th Cir. 2010) ........................................................ 16, 22

Kelley v. American Heyer-Schulte Corp., 957 F. Supp. 873 (W.D. Tex. 1997) ........................... 12

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ........................................................... passim

Lawrence v. Raymond Corp., 501 F. App’x 515 (6th Cir. 2012) ................................................. 14

Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005) .............................................. 64

McClain v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005) ................................... 16, 21, 34

Pearson v. Young, 2002 U.S. Dist. LEXIS 26263 (W.D. Okla. Feb. 5, 2002) ................. 15, 44, 58

Pritchett v. I-Flow Corp., 2012 U.S. Dist. LEXIS 46302 (D. Colo. Mar. 28, 2012).............. 20, 25

Ruffin v. Shaw Indus., Inc., 149 F.3d 294 (4th Cir. 1998) ............................................................ 11

Seaboard Lumber Co. v. United States, 308 F.3d 1283 (Fed. Cir. 2002) ..................................... 11

Smith v. Ford Motor Co., 2013 WL 214378 (D. Utah Jan. 18, 2013) .......................................... 63

Smith v. Wyeth-Ayerst Labs. Co., 278 F. Supp. 2d 684 (W.D.N.C. 2003) ............................. 13, 20

Soldo v. Sandoz Pharms. Corp, 244 F. Supp. 2d 434 (W.D. Pa. 2003) ........................ 8, 32, 38, 57

Sweeney v. Saberhagen Holdings, Inc., 2011 WL 346822 (E.D. Pa. Jan. 13, 2011), adopted, 2011

WL 359696 (E.D. Pa. Feb. 3, 2011) ................................................................................. 64

Other Authorities

Federal Judicial Center Reference Manual on Scientific Evidence (3d ed. 2011) ....... 9, 61, 62, 63


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Rules

Fed. R. B.R. 9017.......................................................................................................................... 13

Fed. R. Evid. 104 .......................................................................................................................... 11

Fed. R. Evid. 702 ................................................................................................................... passim


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The Committee designated William Longo, PhD and John Templin, CIH as expert

witnesses. Both Longo and Templin work for Longo’s company, MAS, LLC. The Committee

cannot meet its burden that their opinions are admissible under Rule 702 of the Federal Rules of

Evidence (applicable in this proceeding under Federal Rule of Bankruptcy Procedure 9017) and

the standards of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

I. Introduction

In trying to construct a case against gasket and packing manufacturers including Garlock,

the plaintiffs’ bar faced a problem. Historically, leading advocates for asbestos worker safety

recognized that gaskets and packing posed no health hazards in normal usage and made no

meaningful contribution to causing any disease.2 Early systematic studies unrelated to litigation

provided data confirming the absence of disease risk from normal workplace activities with

gaskets.3

As bankruptcies of the companies responsible for the insulation products that cause

mesothelioma loomed, Dr. Longo recognized an opportunity to offer the asbestos plaintiffs’ bar

ammunition they could use to focus cases on new target defendants. Longo, a litigation

entrepreneur of the first order—the “quintessential expert for hire,” Johnson v. Manitowoc Boom

Trucks, Inc., 484 F.3d 426, 435 (6th Cir. 2007)—began offering new, purported “workplace

simulations” of gasket and packing use. Not only did Longo create new evidence, Longo’s

“testimonial charisma” enabled him to present his experiments as credible when taken at face

2 Selikoff I, Lee D. Asbestos and Disease p. 467 (1978) (Appx. C Ex. 1). 3 Liukonen LR, Still KR, Beckett RR. “Asbestos Exposure from Gasket Operations.” Industrial Hygiene Branch, Occupational and Environmental Health Service, Naval Regional Medical Center, Bremerton, WA (May 1978) (also referred to as the “U.S. Navy Study” or “the Bremerton Study”) (Appx. C Ex. 2).


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value.4 It is only when a judge studies them in detail that it becomes obvious these “studies” are

“junk science” that do not pass muster under Daubert, that Longo’s testimony “relies on evasion

and misdirection,” and that his opinions are “unsupported by any respectable community of

scientists.”5

Indisputably, Longo’s gasket and packing fiber release findings are well outside the range

found in systematic and thorough studies of usual workplace activities. Although recognition of

many of the flaws in his methods require comparison to technical protocols for proper testing,

some become obvious by the application of common sense to the specifics of his reported

findings. For example, one of his highest reported fiber release values occurred during a rest

period when no work with gaskets was occurring.6

Longo’s lack of intellectual rigor, the hallmark of Daubert analysis,7 is demonstrated not

only by his experiments’ poor design and improper sample collection and analysis

methodologies, but also by the many errors in reporting the data in his experiment summaries, in

the reports he has submitted in this case, and even in the only article he has ever published

regarding gaskets. It is telling that since that article appeared and was criticized in the industrial

hygiene literature, Longo has not since published the litigation-driven experiments he now cites

to the Court. Absence of peer review and litigation motivation are two key indicia of lack of

reliability under Daubert.

The full range of machinations Dr. Longo and his laboratory use to achieve the results

they report will probably never be fully discovered. Just one example of his use of techniques

4 See Order, In re: Lamar County Asbestos Litigation Cases Filed or to be Filed by Waters & Kraus in Lamar County, Texas, in the 6th District Court for Lamar County, Texas (entered July 5, 2001), p. 12 (Appx. C Ex. 3). 5 Id. at pp. 2, 12. 6 Longo Dep. pp. 238-240 (Appx. C Ex. 4). See Section VI.B.9 of this brief, infra. 7 Soldo v. Sandoz Pharms. Corp, 244 F. Supp. 2d 434, 559 (W.D. Pa. 2003).


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known to inflate results is his use of a method for processing samples called the “indirect

method.” The “indirect method” has been rejected under Daubert in an asbestos Bankruptcy

case opinion. In re Armstrong World Indus., Inc., 285 B.R. 864, *7-10, *15 (Bankr. D. Del.

2002).

Longo’s lab has in the past overstated results, and in his report in this case he has resorted

to outright falsehood.8 What is known—and known beyond doubt—is that Longo’s work lacks

the primary indicia of reliability sufficient to survive a Daubert challenge: Longo does not

adhere to valid methodology.

The other MAS witness, Mr. Templin, makes a host of assertions in his reports that are

insupportable. As with Longo, many require detailed review, but others are so blatant that they

conflict with both good science and the law. He would have the Court believe that retrospective

exposure assessment is not science.9 The Federal Judicial Center’s Reference Manual on

Scientific Evidence (3d ed. 2011) contains a Reference Guide on Exposure Science, and another

Committee expert, Dr. Brodkin, concedes exposure assessments are a proper scientific approach

to making decisions about groups of exposed persons:

Q. In scientific research into asbestos disease, researchers have, however, looked at various groups of workers and considered them collectively for making decisions, correct?

A. Certainly. Q. And in that context especially, retrospective dose reconstruction is quite

helpful; is that correct? A. I would agree with that.10

8 See Section VI, infra. 9 Templin Report, unnumbered pp. 13-14 (Appx. A Ex. 5). 10 Brodkin Dep. pp. 39-40 (Appx. C Ex. 25).


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Templin also purports to opine on medical issues, and in doing so contradicts established

case law on how epidemiology is evaluated for causal determination. (See infra). Similarly, his

attack on the historical view that gaskets and packing pose no health hazard is an unfounded and

insupportable attack on the lack of “sound judgment” of the 1970s’ foremost advocate against

unsafe asbestos products. And like Longo, he proffers untrue assumptions to rationalize his

rejection of the U.S. Navy’s highly-relevant, systematic, non-litigation study of the safety of

gasket use.

The experiments on which Longo and Templin base their opinions are not only irrelevant

to this matter because they fail to replicate the real world experience of the claimants at issue; the

methodological flaws, coupled with the misrepresentations of fact and science, are so pervasive

and so severe, that they render the experiments unreliable. For this reason, the reasons outlined

below, and others that will be shown at the Estimation trial, the Court should strike these experts’

opinions as inadmissible under Rule 702.

II. Specific Opinions Challenged and Materials Supporting this Motion

Because the flaws in their methods and approach to their role as expert witness are so

pervasive, Debtors first ask that these witnesses’ opinions be excluded in their entirety.

Alternatively, the following opinions or testimony, if proffered, should be excluded:

• Testimony about the results of any MAS gasket and packing experiments.

• Opinions that asbestos gaskets or packing produce dangerous levels of asbestos under ordinary conditions of use.

• Opinions about the levels of asbestos exposure experienced by any claimant who has submitted PIQ information—data that these witnesses have not reviewed and cannot, therefore, opine about.

• Opinions about the levels of asbestos exposure of any persons who currently have or in the future may assert claims against Debtors.


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• Opinions that retrospective exposure estimates performed in this case are not reliable.

• Opinions on medical issues of general or specific causation.

• Opinions on epidemiology, an area in which these witnesses are not qualified.

• Opinions on the alleged amphibole content of Garlock gaskets.

Rule 702 and Daubert apply to all federal civil proceedings, including bench trials and

jury trials. See Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1301-2 (Fed. Cir. 2002).

Accordingly, Debtors request that the Court make a Rule 104 determination on the admissibility

of the opinions of these experts. When a party raises a Daubert challenge to an expert’s

opinions, Federal Rule of Evidence 104(a) requires the trial court to make an admissibility

determination. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (“[W]here [expert]

testimony’s factual basis, data, principles, methods, or their application are called sufficiently

into question . . . the trial judge must determine whether the testimony has ‘a reliable basis in the

knowledge and experience of [the relevant] discipline.’”) (quoting Daubert, 509 U.S. at 592).

See also e.g., Barbain v. Asten Johnson, Inc., 700 F.3d 428, 432-33 (9th Cir. 2012), reh’g en

banc granted, 710 F.3d 1074 (9th Cir. 2013) (finding that district court abused its discretion by

neither holding a Daubert hearing nor “making any gateway determinations regarding relevance

and reliability”).

The trial court is not bound by the rules of evidence, and may consider evidence and

materials that otherwise would be inadmissible. Fed. R. Evid. 104(a); Ruffin v. Shaw Indus.,

Inc., 149 F.3d 294, 296-97 (4th Cir. 1998) (“[I]n making preliminary determinations pursuant to

Rule 104(a), the court is not bound by the rules of evidence.”). Thus, pursuant to Rule 104,

Debtors have supported this motion with various exhibits identified in the motion. These include

the reports of the experts in question and the reports of Debtors’ experts, all of whom have been


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deposed, who describe in detail the challenged witnesses’ flawed methodology and incorrect

statements of science.

Because this is a bench trial, Debtors suggest that the Court carry the motion through the

hearing in this case and rule after having heard from the witnesses on these issues. But review of

the expert reports is critical, especially because of the limited time available for live testimony in

this matter. The flaws in the Committee industrial hygiene experts’ reasoning, methodologies,

and use of specific studies—some of which are subtle and technical in nature—are discussed in

great detail in the rebuttal reports of Fred Boelter, CIH, and John Henshaw, CIH.11 These

leading experts in their fields explain in detail why an unbridgeable analytic gap exists between

the purported data Longo and Templin cite and the opinions they reach.

Finally, as explained in Kelley v. American Heyer-Schulte Corp., 957 F. Supp. 873, 877-

878 (W.D. Tex. 1997), the Court’s gatekeeper role requires it to review the proffered experts’

claimed reliance material to ascertain whether the references really provide the support the

experts claim.12 So that the Court possesses a comprehensive record, the following Appendices

have been attached to Debtors’ Motion and are referenced herein:

• Appendix A, containing the reports and rebuttal reports of Committee industrial hygiene witnesses;

11 Attached hereto as (Appx. B Exs. 3, 4, and 6). 12 As explained in Kelley, 957 F. Supp. at 877-78:

When confronted with a proffer of expert testimony based upon particular studies, the Court must as an initial matter determine whether the studies could be reasonably relied upon by the expert. See Christophersen, 939 F.2d [1106] at 1110, 1114 [(5th Cir. 1991)]; Fed. R. Evid. 703. Concurrently, the Court must determine whether a scientific expert's method of using the study is sufficiently reliable to warrant admission. Daubert, 509 U.S. at 591, 113 S. Ct. at 2796. Therefore, in the present case, the Court must decide both whether the studies in question are reasonably relied upon, and whether Dr. Swan's method of using those studies has the mark of a scientific method. Daubert, 509 U.S. at 592-95, 113 S. Ct. at 2796-97; Christophersen, 939 F.2d at 1110, 1115-16; Fed. R. Evid. 703.


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• Appendix B, containing the reports and rebuttal reports of Debtors’ industrial hygiene witnesses;

• Appendix C, containing other documents cited in this brief; and

• Appendix D, containing all reference material cited in the experts’ reports (electronically, in the form of a thumb drive).

III. Application of the Daubert Standard to Longo’s and Templin’s Opinions

Federal Rule of Bankruptcy 9017 applies Federal Rule of Evidence 702 in determining

whether a proffered expert may testify. Rule 702 requires the Court to exclude expert testimony

that does not meet the following criteria:

(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.

See also Kumho Tire, 526 U.S. at 149; Daubert, 509 U.S. at 597 (the court plays a

“gatekeeping” role regarding the admissibility of expert testimony). The party offering

the expert testimony has the burden of proof to establish, by preponderance of the

evidence, that the expert testimony is admissible. Cooper v. Smith & Nephew, Inc., 259

F.3d 194, 199 (4th Cir. 2001); Smith v. Wyeth-Ayerst Labs. Co., 278 F. Supp. 2d 684, 691

(W.D.N.C. 2003).

A. Daubert Emphasis on Rigorous Compliance with Appropriate Methodology

In its role as gatekeeper, although it need not determine ultimate scientific issues, the

Court is obligated to evaluate the “facts on which the expert relies, the method by which the


8

expert draws an opinion from those facts, and how the expert applies the facts and methods to the

case at hand.” Amorgianos v. National R. R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002).

Both Longo’s and Templin’s opinions fail at every step in this assessment of appropriate

methodology. Their opinions are based on insufficient facts and data because they have

purposely neglected to review any of the information submitted by claimants in this case.

Moreover, the principles and methods they rely upon for their testimony is patently unreliable

and unscientific. See Kumho Tire, 526 U.S. at 149; Daubert, 509 U.S. at 597.

B. Daubert Factors Are Applied with Greater Rigor to Litigation-Generated Opinions Like Longo’s

As the history of Longo’s gasket and packing testimony that is described below will

show, Longo’s opinions were developed for litigation. Accordingly, case law requires rigorous

review of Longo’s proffered testimony.

If it is clear that a proposed expert's testimony flows naturally from his own current or prior research (or field work), then it may be appropriate for a trial judge to apply the Daubert factors in somewhat more lenient fashion. . . . However, if a proposed expert is a “quintessential expert for hire,” then it seems well within a trial judge's discretion to apply the Daubert factors with greater rigor . . . .

Johnson, 484 F.3d at 435 (6th Cir. 2007); see also Daubert v. Merrell Dow Pharmaceuticals, 43

F.3d 1311, 1317 (9th Cir. 1995) (“Daubert II”) (“[I]n determining whether proposed expert

testimony amounts to good science, we may not ignore the fact that a scientist’s normal

workplace is the lab or the field, not the courtroom or the lawyer’s office.”); Lawrence v.

Raymond Corp., 501 F. App’x 515, *6, 8 (6th Cir. 2012) (excluding expert because “almost all

of” his knowledge of and experience on the subject resulted from his work as a consultant in

previous forklift accident cases). “Even the most indulgent assessment of intellectual rigor

presupposes that the witness will have taken care to avoid misrepresentations to the court as to


9

matters of objective, concrete fact.” Pearson v. Young, 2002 U.S. Dist. LEXIS 26263, *12

(W.D. Okla. Feb. 5, 2002).

Longo’s opinions do not “flow naturally” from any of his own field work—because he

has never conducted or even observed any field work involving gaskets or packing13—nor do

they flow from any laboratory research that has not been prompted by, paid for, or used for the

benefit of plaintiffs and plaintiffs’ attorneys that have engaged Longo to testify on their behalf.

Assuming that Longo has “taken care to avoid misrepresentations” of fact would be a

mistake. His report in this case, and the litigation experiments his report is based on, are replete

with false assertions of fact and data reporting errors. Moreover, even the revised reports he

produced failed to fix errors that were brought to his attention at his deposition in this case.

Significantly, one of the Committee’s other experts has found Longo not to be truthful.

They met once and Longo then started telling a story in his rebuttal report and in testimony in

another case that suited his own purpose. The Committee’s expert Roger Beckett says Longo’s

story is simply not true.14

IV. Longo’s and Templin’s Opinions Are Not Based On Sufficient Facts or Data and Cannot Help the Court Determine the Facts at Issue in This Case.

As an initial matter, Longo’s and Templin’s opinions do not satisfy the first two

requirements of Rule 702: (a) they will not help the Court in determining whether any of the

claimants in this case have allowable claims against the Debtors, in part because (b) Longo and

Templin do not have sufficient facts or data about any of the claimants in this case. Indeed, they

have not reviewed any of the information discovered by the PIQ process.15

13 Longo Dep. pp. 82-83 (Appx. C Ex. 4). 14 Beckett Dep. pp. 78-83, 91-92, 146-148, 295-297. (Appx. C Ex. 5). 15 Longo Dep. pp. 97-98 (Appx. C Ex. 4); Templin Dep. pp. 22-25 (Appx. C Ex. 6).


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Longo contends that MAS’s gasket removal experiments, upon which Templin also

relies, replicate the actual work experience of individuals who removed gaskets in the course of

their employment. But at no time has Longo ever conducted a gasket study with a particular

claimant in mind.16 Particularly problematic is the fact that, because Longo and Templin have

not reviewed the PIQ information, they know nothing about the specific exposure histories of the

claimants in this case.17 Indeed, Longo himself admits that his gasket experiments would only

relate to Garlock’s claimants if they engaged in the work practices performed in his

simulations.18

Because Longo and Templin know nothing about the work practices of Garlock’s

claimants, they can do nothing more than speculate that the fiber release levels created by the

MAS testing occurred or could have occurred when the claimants were working in the real

world. Thus, any opinions they proffer regarding the levels of asbestos exposure experienced by

any claimant who has submitted PIQ information should be excluded.

V. Longo’s Opinions Are Not Relevant to This Case Because They Are Based on Gasket Experiments Using Tools, Methods, and Gaskets Which Are Fundamentally Dissimilar to Real World Work Practices.

A fundamental requirement of Daubert is that there be no “analytic gap” between the

data relied upon by the expert and the facts of the case at hand. Junk v. Terminix Int'l Co., 628

F.3d 439, 448 (8th Cir. 2010); McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1255 (11th Cir.

2005). In other words, the expert must be able to relate the testing he does in a laboratory setting

to the real world event at issue. Rule 702’s Daubert requirement in this respect is akin to, but

even more rigorous than, the Rule 403 cases, which have found that when conditions of a test are

16 Longo Dep. pp. 96-97 (Appx. C Ex. 4). 17 Id. at p. 97; Templin Dep. pp. 22-25 (Appx. C Ex. 6). 18 Longo Dep. pp. 98-99. (Appx. C Ex. 4).


11

dissimilar to the conditions it seeks to simulate “in such fundamental and important respects”

that the risk of prejudice outweighs the evidence’s probative value, the evidence pertaining to

that test must be excluded as irrelevant. Chase v. General Motors Corp., 856 F.2d 17, 19-20 (4th

Cir. 1988) (excluding all videotapes, test results, and expert testimony related to dissimilar

testing performed by the plaintiff’s expert). The Fourth Circuit’s opinion in Chase relied upon

an earlier Fourth Circuit opinion which noted:

[T]he circumstances of the accident, as alleged, are so different from this test as to make the results largely irrelevant if not misleading. It is elementary physics that automobiles traveling downhill with their front wheels turned do not behave the same way with their brakes locked as those traveling on a flat surface with their front wheels straight. . . . [W]hen the demonstration is a physical representation of how an automobile behaves under given conditions, those conditions must be sufficiently close to those involved in the accident at issue to make the probative value of the demonstration outweigh its prejudicial effect.

Gladhill v. General Motors Corp.,743 F.2d 1049, 1051-1052 (4th Cir. 1984) (emphasis added).

See also Hoffman v. Ford Motor Co., 493 F. App’x 962, 964, 973-76 (10th Cir. 2012) cert.

denied, 12-889, 2013 WL 230247 (U.S. May 28, 2013) (Plaintiff’s expert’s opinion should have

been excluded for failure to “to make the critical connection between lab tests and real world

events, a necessary ingredient to establish causation.”). Longo’s experiments fail the

“substantial similarity test” in several ways.

A. Longo’s Experiments Are Not Representative of Real World Work

The tasks performed in Longo’s gasket “work practice studies” are fundamentally

different from real world work practices. His early gasket removal experiments, for example,

involved wire brushing a gasket that had been epoxied to a metal plate. Though Longo called

these experiments “Workplace Simulations,” these samples in no way reflected any experience a

real world worker would encounter.


12

Responding to criticisms about those experiments, Longo began a series of gasket

removal experiments involving flanges from various sources. Each successive experiment had to

be done to respond to criticisms of prior experiments. And the results kept getting higher. In the

experiments entitled Work Practice Studies IV and V and the Crane Valve Study, Longo resorted

to an 11,000 rpm grinder with a carbon steel wheel to remove the gaskets, without knowing

whether such a powerful tool was even available in the 1950s and 1960s, when most claimants’

exposures occurred.19 But just as important, tools and steel wheels like these can easily damage

the flange face.

Flanges, between which compressed asbestos sheet gaskets were placed, typically had

phonographic finishes or serrated rings that gripped the gasket when the flanges were bolted

together. 11,000 rpm grinders with steel wheels can damage these finishes on even steel flanges,

requiring replacement of the flanges, which is expensive and time consuming.20

But Longo did not use the high speed grinder and steel wheel just on steel flanges. He

used them on brass flanges as well. He testified that three of the five valves used in the Crane

Valve Study were brass.21 Even Committee expert Mr. Shoemaker, who was the superintendent

of the pipefitters at Norfolk Naval Shipyard in the 1980s and 1990s, agrees that one would never

use grinders to remove gaskets on “yellow metal” flanges, such as brass or bronze.22

In addition to the carbon steel wheel, Longo’s Crane Valve experiment involved the use

of a brass cup brush used on the 11,000 rpm grinder.23 He did not realize that the maximum

19 Longo Dep. pp. 118-120 (Appx. C Ex. 4). 20 Boelter Rebuttal Report, pp. 25-27 (Appx. B Ex. 3); Van Orden Rebuttal Report, p. 5 (Appx. B Ex. 12). 21 Longo Dep. pp. 132-133, 262-264, 266-267 (Appx. C Ex. 4). 22 Shoemaker Dep. pp. 88, 247-250) (Appx. C Ex. 7). 23 Longo Dep. pp. 273-274 (Appx. C Ex. 4).


13

safety rating of the brass brush was 7,000 rpm.24 Accordingly, the work practice was not only

unrealistic, Longo created an unexpected hazard to the workers who performed the experiment.25

Longo’s practice of sequential removal of gaskets similarly fails to replicate the actual

experiences of individuals removing gaskets in the field.26 Workers would not typically remove

one gasket right after another. Longo ignores the other tasks that would have been performed by

individuals in the field, including tasks that would have resulted in exposure to asbestos

insulation.27

The Gasket Fabrication Study is another example of an unrealistic work practice offered

as scientific evidence of real world exposures. This was a follow-up to an experiment conducted

on John Crane gaskets following the same protocol. Longo presents the experiment as

representative of exposures when making gaskets using the so-called “Ball-Peen Hammer”

method. While workers may have occasionally made a gasket from sheet by tapping the outline

of the gasket when holding the sheet up to the flange, Longo in his experiment “pound[s] out”

four gaskets in a row in about twenty minutes.28 This was not to simulate an actual work

practice, but just to see whether he could detect asbestos fibers in the air:

Q. How did you decide or determine that you should fabricate four gaskets like that, one right after another?

A. Really based that a lot on Fred Boelter's study. I think they fabricated one an hour

and found no results. So I wanted to say, okay, if there is going to be any fiber release, I think a reasonable number to even detect it would be four. Since he found no fibers, one an hour for eight hours, I wanted to see if we can -- again, we're just looking to see does it release fibers or not. * * *

And I was looking primarily with 22 minutes or doing four in a row, would that produce any fibers; and if so, would it be enough to detect? So that's how I came

24 Id. at pp. 273-277. 25 Shoemaker Dep. pp. 249-250 (Appx. C Ex. 7). 26 Boelter Rebuttal Report, p. 5 (Appx. B Ex. 3). 27 Id. 28 Longo Report, p. 29 (Appx. A Ex. 2); Longo Dep. pp. 109-110, 141 (Appx. C Ex. 4).


14

up with four, just mainly trying to get a detection limit; that if it released very little like Boelter's, could we detect it or not? . . . 29

Nevertheless, Longo presents this experiment as if it represents the exposure workers would

typically have making gaskets in the field.

The representativeness issues with the MAS gasket simulations are not surprising.

Despite having no experience removing or fabricating gaskets, and no experience conducting

monitoring for asbestos in the workplace, Longo designed the protocols for the experiments and

even performed the gasket work for some of the experiments, including the ones underlying his

published paper.30

For the foregoing reasons, Longo’s gasket experiments, and his opinions derived from

them, are so different from the circumstances surrounding actual claimants’ real world work

practices as to make Longo’s opinions irrelevant and misleading, and therefore inadmissible

under Daubert and Rule 702.

B. The Gaskets Longo Uses Are Not of the Condition in Which Typical Claimants Would Have Encountered Gaskets in The Real World.

The proponent of the expert testimony has the burden of proving the study is

representative of the fact at issue in the case. Cooper, 259 F.3d at 199; Smith, 278 F. Supp. 2d at

691. “The burden on the proponent of the expert is heavy, as any inadequacy in the proof on any

of Rule 702's elements may render the entire opinion inadmissible.” Pritchett v. I-Flow Corp.,

2012 U.S. Dist. LEXIS 46302, *8-9 (D. Colo. Mar. 28, 2012). Thus, as with every other

foundation showing, the burden is on the Committee to prove that Longo’s gaskets were in the

same condition in which typical claimants would have encountered them. This is a showing the

Committee cannot make.

29 Longo Dep. from John Costello, et al. v. ACandS, Inc., et al., in the Circuit Court for Baltimore City, Maryland (June 22, 2006), pp. 38-39. (Appx. C Ex. 8). 30 Longo Dep. pp. 192-193 (Appx. C Ex. 4); Henshaw Rebuttal Report, p.13 (Appx. B Ex. 6).


15

Typical gasket work occurred immediately after the gasket had been in use.31 A leak

occurs and the gasket must be removed. The system is shut down. The work is done

immediately, often in wet conditions, and the system is then put back into operation. Time is

money in industrial and maritime settings, and equipment must return to operation as soon as

possible. At the time of the MAS gasket experiments, the actual gaskets that were removed had

been out of service for many years. It had been at least six or seven years since the gaskets used

in Work Practice Studies II, III, IV and V had last been serviced, and the Crane Valve Study

involved removal of gaskets that were out of operation for at least 19 years.32 Aside from the

fact that removal of dry gaskets is unrepresentative, an added problem is the deteriorated

condition of these old, out-of-service gaskets—the gaskets showed signs of rust adhesion, and

the rubber necessarily deteriorated with time. All of this served to swell the amount of airborne

particulate, of all kinds, in Longo’s simulations.33

VI. Longo’s Gasket Experiments Are Unreliable Because They Fail to Adhere to Accepted Scientific Methodologies for Collection and Analysis of Air Samples.

The experiments Longo has designed suffer from a litany of methodological flaws which

make them unreliable. From designing the protocols, to collecting the samples, to analyzing the

samples, to reporting the results, Longo and his lab fail to use scientifically valid methods that

ensure the replicability of the data the experiments generate, even at the most basic levels.

“‘[A]ny step that renders the analysis unreliable . . . renders the expert’s testimony

inadmissible.’” McClain, 401 F.3d at 1245 (quoting Amorgianos, 303 F.3d at 267) (reversing

the District Court’s decision to permit testimony from Plaintiffs’ expert because Plaintiffs’

experts “took leaps of faith” which provided “simply too great an analytical gap between the data

31 Van Orden Rebuttal Report, p. 2 (Appx. B Ex.12). 32 Henshaw Rebuttal Report, p. 8 (Appx. B Ex. 6); Longo Dep. pp. 257-258 (Appx. C Ex. 4). 33 Van Orden Rebuttal Report, pp. 2-3 (Appx. B Ex. 12).


16

and the opinion proffered”); Junk, 628 F.3d at 448 (affirming the exclusion of Plaintiff’s expert

because his reliance on unfounded assumptions in his comparative method and his failure to use

a scientifically valid method to estimate whether the Plaintiff’s exposure to chlorpyrifos exceed a

safe level “created ‘too great an analytical gap’ between his opinion and the data on which it

relied.”) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Longo’s testimony

should be excluded.

A. Samples from Two Gasket Experiments Were Swapped, Causing Results to be Reported Inaccurately in Longo’s Published Paper.

One published criticism of Longo’s 2002 published paper34 is that the chamber in one

experiment cited (power wire brushing) was contaminated with a background asbestos level

above the current OSHA limit, ranging from 0.09 to 0.12 f/cc (fibers per cubic centimeter) with a

“sample time weighted average” of 0.11 f/cc.35 These levels were originally reported in Work

Practice Study III – Electric Wire Brushing that Longo had produced to Garlock before the paper

was published.36

But, for this bankruptcy case, Longo produced a revised version of this experiment.37

This revision evinces that the background samples for Work Practice Study III – Electric Wire

Brushing were at some point swapped with the background samples for Work Practice Study III

– Scraping and Hand Wire Brushing. The data sheets for these two experiments now contain

undated, handwritten changes to the “Project Name” and “Sample #,” as shown below.38

34 Longo WE, Egeland WB, Hatfield RL, Newton LR. (2002) Fiber release during the removal of asbestos-containing gaskets: a work practice simulation. Applied Occupational and Environmental Hygiene 17(1): 55-62. (“Longo 2002”) (Appx. C Ex. 9). 35 Boelter FW. (2003) Author’s reply. (Letter to the Editor). AIHA Journal 64:595-597 (Appx. C Ex. 10). 36 Excerpts of Work Practice Study III, As reported in Longo 2002 (Appx. C Ex. 11). 37 Excerpts of Work Practice Study III, Revised (Appx. C Ex. 12). 38 These changes were initialed by “W.B.E.”: William Egeland, a co-author of Longo 2002. See Excerpts of Work Practice Study III, Revised (Appx. C Ex. 12); see also Longo Dep. p.168 (Appx. C Ex.4).


17

Longo agrees that the person who made the changes to the data sheets did not follow the

standard scientific practice of dating the change.39 Thus, one has no way of knowing exactly

when the change to the data sheets occurred. Longo can only say that it did not occur until after

Longo 2002 had been published and after he received criticism for the elevated background

levels:

Q. So what you recall is that you reviewed Mr. Boelter's letter and criticisms of your published paper and that caused you to go back and recheck your data?

A. I don't know if it was Boelter or Dr. Paustenbach or somebody made a

mention some years ago about that the background levels were above the current OSHA PEL.40

Longo’s report in this case uses the swapped background levels, reporting a background

range of 0.09 to 0.12 f/cc for Scraping and Hand Wire Brushing, and a background range of

<0.002 f/cc for Electric Wire Brushing.41 It does not disclose that each of these sample sets was

originally reported as coming from the opposite experiment. Similarly, no explanation for the

swapped background samples can be found in the “Index of Revisions” for either experiment.42

39 Longo Dep. p. 168 (Appx. C Ex. 4); Templin Dep. pp. 201-202 (Appx. C Ex. 6); Boelter Rebuttal Report, p. 39 (Appx. B Ex. 3). 40 Longo Dep. p. 167 (Appx. C Ex. 4). 41 Longo Report, Tables 5 and 7, pp. 47, 49 (Appx. A Ex. 2). 42 Electric Wire Brushing lists only one revision, dated December 6, 2012: (“Add TEM Data and Remove Indirect TEM Data.”) Scraping and Hand Wire Brushing lists two revisions; the first dated August 24, 2010 (“Add TEM Data and Remove Indirect TEM Data”) and the second dated January 9, 2011 (“Fix typographical errors”). See Excerpts of Work Practice Study III, Revised (Appx. C Ex. 12).


18

Longo failed to correct the inaccurate data published in his 2002 paper, and expresses

indifference toward the need to do so.

Q. Did you send any correspondence to the journal to report this error?

A. No. There was no reason to.43

Why would Longo want to switch the electric wire brushing background samples with

the hand wire brushing samples? The separate fiber type analysis of the hand wire brushing

samples showed no asbestos in the background. Accordingly, Longo can now say that there was

no contamination. Even if Longo is to be believed that the switch resulted from the samples

themselves being swapped during the experiments (which took place within four days of one

another), this incident displays a lack of ability to keep the samples of one experiment separate

from the samples of another experiment—a lack of quality control at the most basic level.

B. Longo’s Lab Did Not Use Accepted Methods to Collect and Analyze the Samples Taken During His Gasket Experiments.

There are standard methods for collecting and analyzing occupational exposure to

asbestos. The primary methods are approved by OSHA. These include three similar methods

referred to as the OSHA Reference Method, NIOSH 7400, and ID-160. The analysis portions of

these methods specify a light microscopy procedure known as Phase Contrast Microscopy

(PCM). This is used for counting fibers. But the light microscope does not allow the

microscopist to differentiate fiber types. The 7400 method, therefore, cannot determine whether

the fibers collected are asbestos, and if they are, what type of asbestos they are.

When it is important to identify whether the fibers collected are asbestos, scientists use a

companion method known as NOISH 7402. The 7402 method employs transmission electron

microscopy (TEM). This type of microscopy allows the microscopist to identify whether the

43 Longo Dep. p. 169 (Appx. C Ex. 4).


19

fibers are asbestos. Using this method, the microscopist determines the percentage asbestos

fibers of the total fibers. Then, the microscopist multiplies the percentage times the result of the

PCM analysis. Further tests are usually necessary to determine the fiber type of asbestos.

Longo says that his collection and analysis is in “general accordance with” NIOSH 7400.

In his later experiments, he also says that he further analyzed the samples “in general accordance

with” NIOSH 7402.44 It is not clear why Longo uses the phase “in general accordance with.” Is

he intentionally not following steps of the method, or does he use this language to protect

himself in case errors are discovered? The only explanation Longo gives is that he uses the

phrase “general accordance” to mean that “we follow the protocol to the best of our ability.

There may be some times there’s the – because of the process that we can’t do everything

exactly the same, but we generally follow it.”45 This explanation for deviating from accepted

scientific methods is decidedly unscientific. No one would knowingly agree to an operation by a

doctor who admitted he performed surgery only in “general accordance” with the established

protocols. Similarly, where established methods exist, the courts require rigorous compliance,

not some generalized ad hoc compliance, the extent of which is subjectively decided by the

expert. Pritchett, 2012 U.S. Dist. LEXIS 46302 *9 (“any inadequacy in the proof on any of Rule

702’s elements may render the entire opinion inadmissible”).

Close examination of the underlying data sheets and the testimony by Longo and his

colleague Richard Hatfield reveal that the methods were not followed in many important

respects.

44 Longo Dep. pp. 143-145 (Appx. C Ex. 4). 45 Id. at pp. 143-144.


20

1. Failure to follow NIOSH 7400 quality control procedures in the early gaskets experiments, including published experiments

In the experiments through Work Practice Study III, Longo’s lab conducted the

microscopy analysis. An important part of every method is quality control. All the PCM

methods, including NIOSH 7400, require that blind recounts be done on 10% of the samples.

This was not done until nearly a year after the experiment and only after it was brought to

Longo’s attention in litigation. Also, many of the personal samples in Work Practice Studies II

and III, which were ultimately published, were heavily loaded and should have been reported as

“probably biased” under NIOSH 7400. When asked why they neglected to follow the method,

Longo’s colleague Hatfield explained:

In general, we don't provide PCM counts for clients or persons in general. The PCM work that we have done generally has been for our own work and not for outside people, and we just haven't been providing that, so we didn't have that as an integral part of our QC.46

This is hardly reassuring that the results are reliable. In fact, Mr. Hatfield admitted that

later studies had to be done to fix the quality control problems with the studies that were

published:

Q. Do you have plans to do a Work Practice Study IV involving gaskets? A. Yes. Q. Is this to fix the quality control problems with your counts? A. It is for a number of reasons. Q. Is that one of the reasons?

46 Dep. of Richard L. Hatfield, Lewis Howard, et al. v. Owens-Corning Fiberglas Corp., et al., in the 62nd Judicial District Court, Hopkins County, Texas, (Dec. 5, 2000), p. 79 (Appx. C Ex. 13).


21

A. That is one of the reasons.47

2. Failure to follow NIOSH 7402 magnification requirements in later experiments

NIOSH 7402 specifies the magnification to be used for fiber counting is 500-1,000X.

The data sheets from Work Practice Studies IV and V and from the Crane Valve Study report

that the magnification used was 20,000X or higher. Longo claims that although the samples

were analyzed at the specified magnification, the microscopist simply mislabeled the

magnification on the data sheets.48 In so claiming, Longo is relying on the word of the analysts

who “say they did it at a thousand X or 1200 X and go up to five or 10,000 when measuring the

fibers.”49 Even Longo must not have believed the microscopists. He has taken no steps to

correct the data sheets.

3. Failure to follow the NIOSH 7402 3-grid preparation standard

MAS analysts also failed to follow the 3-grid preparation specified by NIOSH 7402, and

in many situations read only 2 grids rather than the specified number of 3, which is problematic

because it does not allow for a representative sampling of the filter surface.50 For example, in

the Crane Valve Study, “[m]ore than three-fourths of the analyses were not conducted on three

grid preparations.”51

The following image, from one of the Crane Valve NIOSH 7402 data sheets, illustrates

the incorrect magnification and an improper number of grid preps.

47 Dep. of Richard L. Hatfield, Brame v. Abel Supply Co., in the 345th Judicial District Court, Travis County, Texas (April 12, 2001) pp. 164-165 (Appx. C Ex. 29). 48 Longo Dep. pp. 146, 201-203 (Appx. C Ex. 4). 49 Id. at p. 203. 50 Boelter Rebuttal Report, p. 35 (Appx. B Ex. 3); Van Orden Rebuttal Report, p. 9 (Appx. B, Ex. 12). 51 Id.


22

4. Inaccurate Reporting of Data

During his May 21, 2013, deposition in this case, Longo attempted to explain numerous

transcription errors with which he was confronted by stating that he may have produced prior

versions of some of his underlying gasket experiments with his expert report.52 A week after the

deposition, so-called “updated” versions of some experiments were produced to Garlock.53

As the following table shows, of the 17 identified transcription or rounding errors that

have been identified in these four experiments (Work Practice III – Scraping and Hand Wire

Brushing, Work Practice III – Electric Wire Brushing, Work Practice IV, and Work Practice V),

plus Work Practice II, only three have been corrected in the “updated” experiments (emphasized

below).

52 Longo Dep. pp. 228, 234, 250-253 (Appx. C Ex. 4). 53 See Letter from James P. Wehner to Ray Harris (May 29, 2013) (Appx. C Ex. 14).


23

Work Practice Study

Sample Affected

Count Reported on Data Sheet

Count as Reported in

Original Version

Count as Reported in

Updated Version

II P-7-B 3.669 54 3.8 (n/a) II P-2-C 46.57 46.5 (n/a)

III (Scraping) A-3-B 6.048 6.1 6.1 III (Electric) A-0-B 0.001 <0.001 0.001 III (Electric) A-4-C 9.049 9.1 9.1

IV P-3-A 87.93 90 90 IV P-6-A 89.32 90 90 IV P-1-D 1.445 1.5 1.5

IV 55 P-2-D 85.71 87 87 IV P-3-D 1.822 1.9 1.8 IV P-8-D 100 99 99 IV A-6-B <0.079 1.2 <0.08 IV A-6-C 96.20 97 97 IV A-8-A 98.02 99 99 IV A-9-D 94 95 95 V P-1-C 22.549 22.6 22.6 V A-8-A 3.849 3.9 3.9

5. Rounding in unscientific ways

When first confronted with some of the errors in transcribing the data recorded on the

data sheets to what is reported in the experiments’ write-ups (supra), Longo first explained that

the mistakes were typos.56 As the deposition continued and more and more of these errors were

identified, Longo developed a different explanation for what are clearly erroneous applications

of the rounding rule. Incredibly, he suggests the rounding rules “could go either way to account

for significant figures:

54 Because they are not consistently used throughout all studies, all units have been omitted from this table for ease of reading. 55 The TEM count sheet for Work Practice Study IV’s sample P-2-D was updated in several respects. Initially, the fiber type for structure 13 was left blank, making the total percent asbestos 85.71%. The “update” fills in the fiber type for structure 13, which appears to have increased the percentage to 87.18%. See (Appx. C Ex. 17), discussed infra. 56 See e.g., Longo Dep. pp. 183, 221 (Appx. C Ex. 4).


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Q. If you look at [Gasket Study V] sample P-1-C. A. P-1-C. Okay. Q. The PCM result is 22.6. A. That is correct. Q. Would you take a look at the PCM data sheet? A. P-1-C, Number 14. 22.549 versus 22.6. Q. An error? A. You know, that could go either way. As I talked about earlier. But instead of

22.6, one could argue it should be 22.5. One could argue it should be 22.6. Q. Okay. There's not a scientific -- there's not a rule in science on how to round from

22.549? A. It would be significant figures on how far you're going to round it. This is two

significant figures. So depending if you want to round it all the way to .549. So, as I talked about earlier, I would concede that. I won't argue that the totality of having 22.6 versus 22.5 for a sample that is 22.549. I don't consider that a significant error.

Q. If I could direct your attention to sample A-8-A, the PCM result. *** A. Number 64. Okay. Q. And so the PCM data sheet indicates that it's 3.849 fibers per cc. A. 8-A. That's correct. Q. And it's your understanding that – well can you tell us was it an error to report

that result as 3.9? A. No. That's so close to what the actual results were, you can argue either way. It

does not change the results at all. Q. Okay. There's just no hard-and-fast rule in science a how to round --


25

A. There is a hard-and-fast rule, it depends on how many significant figures. And I would have to go through all these to see how many significant figures I was using at the time. I'm just looking at the overall data, that we're looking at 3. – what was it again? Sorry.

Q. 3.849 versus 3.9 fibers per cc. A. Or versus 3.8. And you have it literally one ten-thousandths of a -- right in the

middle. That does not change the overall opinions and it does not change the overall premise of these studies.57

Even Templin admitted that Longo is wrong on this issue of basic mathematics:

Q. Is it proper to round [6.048] fibers per cc to 6.1 fibers per cc? A. Strictly speaking at least according to the convention that I learned as we

discussed much earlier today, no, it would not be. Q. Are you aware of any convention in which 6.049 is rounded up to 6.1? A. I am not personally so aware, no.58

6. Misidentification of Asbestos Fiber Type

Another error that pervades multiple MAS gasket removal experiments is the

microscopists’ identifying chrysotile structures as amphibole structures. Longo was confronted

with some of these errors during his deposition, at which time he again claimed that he had

inadvertently produced versions of these experiments that had been later corrected.59 He also

claimed that these were not errors in identification of fiber type, but merely errors in “the pull-

down menus.”60

In any event, “updated” reports of the experiments were later produced to Garlock. As

the following table shows, of the seven fiber type misclassification errors, only six were

57 Longo Dep. pp. 246-248 (Appx. C Ex. 4). For examples of the inconsistent reporting of the data due to misapplication of the rounding rules, see Excerpts from Work Practice Study III – Electric Wire Brushing (Appx. C Ex. 15), and Excerpts from Work Practice Study IV (Appx. C Ex. 16). 58 Templin Dep. p. 324 (Appx. C Ex. 6). 59 Longo Dep. pp. 231-234 (Appx. C Ex. 4). 60 Id. at pp. 224-226.


26

corrected in the “updates.” Coincidentally, the structure identifications corrected are the same

structures with which Longo was confronted in his deposition.

Work Practice Study

Sample (Structure) Mislabeled

Reported Fiber Type

Reported Morphology

& SAED

Error Identified at Longo Dep?

Corrected?

III (Scraping) P-4-A (99) Crocidolite Chrysotile Yes (p. 230) Yes III (Scraping) A-5-A (4) Crocidolite Chrysotile Yes (p. 231-232) Yes III (Scraping) P-5-A (55) Amosite Chrysotile Yes (p. 234) Yes

IV P-2-D (8) 61 Actinolite Chrysotile Yes (p. 223-224) Yes IV P-2-D (10) Actinolite Chrysotile Yes (p. 223-224) Yes IV A-3-A (50) Actinolite Chrysotile No No IV P-8-A (54) Actinolite Chrysotile Yes (p. 229) Yes

7. Failure to adhere to NIOSH 7402 counting rules

Longo’s failure to count half-fibers in compliance with the NIOSH 7402 counting rules

also resulted in a count that is biased high.62 Across the gasket experiments, Longo analyzed

fibers with densities outside of the range specified by NIOSH 7400, and used air samples in

situations where the background levels showed measurable concentrations of airborne asbestos,

each of which further caused his estimates of fiber concentration to be biased high.63

8. Failure to adhere to protocols specified in the study design

Further flaws exist in that Longo’s experiments did not even conform to the protocols the

study designs specified. “The reliability of plaintiffs experts’ opinions is significantly

undermined by the fact that they abandon the method that they themselves have defined.” Soldo,

244 F. Supp. 2d at 560.

61 The 7402 TEM Data Sheet for this sample is provided as an example of the misidentification of fibers discussed in this subsection. (Appx. C Ex. 17). 62 Van Orden Rebuttal Report, pp. 9-10 (Appx. B Ex. 12). 63 Boelter Rebuttal Report, pp. 33-36 (Appx. B Ex. 3).


27

The “Study Design and Methodology” section of Work Practice Study IV reports that air

cassettes were exchanged every 15 minutes during the electric wire brushing phase of the

experiment, even though the sampling log for some samples indicates they were changed every

30 minutes.64 Longo could not say whether it was the report or the sampling log which was

wrong.65

Work Practice Study III – Electric Wire Brushing contains a similar error. The “Study

Design and Methodology” section states that the pumps for area samples were collected at a flow

rate of 10 liters per minute, but the sampling log is again inconsistent with the report: the area

samples were only calibrated to a flow rate of 5 liters per minute.66

9. Neglecting to activate pumps at the start of Work Practice Study V (and providing false testimony about this error in 2010)

In Work Practice Study V, MAS workers forgot to activate the personnel samples (those

attached to the workers’ collars) for the first 15-minute work period, meaning no personnel

samples were taken when work first began in the ECL. Personnel samples were not taken until

the first rest period, when the workers were standing in the corner of the ECL for most of the

sampling period.67

Despite a clear description of this oversight in the “Study Design and Methodology”

section of Work Practice Study V, Longo has testified against Garlock at trial that the first

personnel samples taken in this experiment could not have occurred during a rest period:

Q. Okay. And so during the rest period, samples P-1-A through P-1-D were actually collected. There was no work going on. Right?

A. That's not correct.

64 Longo Dep. pp. 207-209 (Appx. C Ex. 4). 65 Id. at pp. 208-209). 66 Id. at pp. 185-186). 67 Id. at pp. 238-239).


28

Q. Well, why don't you -- why do you say that that's not correct? A. Well, what you're looking at is two sets of personnel samples. Those are the

samples. That data was taken -- it's the very first thing that happened, that data was taken during the activity removal. That's absolutely what happened here.68,69

Only after the Torres trial, which resulted in a verdict against Garlock which is now on appeal,

did Longo explain the false testimony in Torres by apologizing for not remembering “every

nuance” of the experiment.70 He now readily admits that the first personnel samples were taken

during a rest period:

Q. So does this paragraph indicate to you that the sampling pumps were not turned on during the first work activity?

A. That's exactly what happened.

Q. Just an oversight possibly by Mr. Hatfield in conducting the study, correct?

A. Yes. The pumps should have been turned on.71

Importantly, and incredibly, despite the fact that no work was being performed when

these samples were taken, Longo somehow managed to measure the highest sample he had ever

obtained in a flange gasket experiment, at least up to that point in time.72 This anomaly is

precisely the kind of analytical gap that renders Longo’s analysis unreliable and inadmissible.

See McClain, 401 F.3d at 1255 (quoting Joiner, 522 U.S. at 146).

68 Longo Trial Testimony. from Oscar Torres and Dora Torres v. Union Carbide Corp., et al., in the 107th Judicial District Court, Cameron County, Texas, (February 23, 2010), pp. 85-86 (emphasis added) (Appx. C Ex. 18). 69 Part of Longo’s “testimonial charisma” is his tendency to speak in absolute terms, regardless of whether he has any supporting data. A later section of this brief describes additional occasions where Longo’s absolute statements, so reassuring to a trier of fact when spoken, prove to be false upon examination of the facts. Supra. 70 Longo Dep. p. 245 (Appx. C Ex. 4). 71 Id. at p. 239 (emphasis added). 72 Id. at p. 240.


29

10. Losing a sample during Work Practice Study III – Electric Wire Brushing

One of the TEM Clearance Air Sampling Data Sheets in Work Practice Study III –

Electric Wire Brushing, reproduced below, indicates that Longo’s lab lost a sample. Such an

oversight shows yet another instance of poor intellectual rigor in that it fails to adhere to basic

standards of scientific quality control – accounting for all samples.

11. Failure to notice and remedy a malfunctioning pump during sampling

Another oversight in Work Practice Study V is the MAS workers’ failure to recognize

that one of the pumps was shorting out. In the video that was produced with Work Practice

Study V, one can clearly see the pump blinking and malfunctioning.


30

12. Methodological flaws in the MAS Spiral Wound Gasket Removal Study

One MAS gasket removal experiment that Longo’s reports do not discuss is the Spiral

Wound Gasket Removal Study. The results Longo reported for this experiment were three to

four times higher than the actual results because he used an indirect PCM technique (instead of

NIOSH 7400) and failed to take into account the dilution level.73 As discussed above, the

indirect method is not reliable under Daubert. In re Armstrong World Indus., 285 B.R. 864, at

*7-8, 15.

Additionally, this experiment reported that sample A-1-A’s TEM for fibers greater than 5

microns was 90.03 f/cc, even though TEM for total structures was only 26.52 structures/cc.

Longo admits achieving this result is not possible, and that he did not catch this “typographical

error.”74

13. Reliance on indirect TEM method

The “indirect method” does not pass muster under Daubert. As the court explained in In

re Armstrong World Indus.:

Some studies suggest that the sonication and shaking steps break larger fibers into smaller ones, or tear apart clusters of fibers, thus exaggerating the total fiber count. [Citation omitted]. It has also been suggested that these steps, as well as the liquids added to the samples, might cause the matrices to dissolve or break up, thereby releasing fibers bound to other materials. [Citation omitted]. D5755 [the indirect method] itself recognizes the potential viability of all of these theories, noting that “the procedure described neither creates nor destroys asbestos, but it may alter the physical form of the mineral fibers …. [A] single, large asbestos containing particle(s) … dispersed during sample preparation may result in anomalously large asbestos concentration results in the TEM analyses of that sample.” [Citation omitted].

285 B.R. 864, at *7-8.

73 Id. at pp. 114-116. 74 Id. at p. 116.


31

By Longo’s own admission, the indirect TEM “method is not recognized by either OSHA

or NIOSH for the determination of a worker’s exposure to asbestos fibers.”75 Nevertheless,

despite his claim that he does not rely upon indirect air sample analysis data for his opinions,

Longo cites data in this case that was derived using the indirect method.76 This is poor

methodology that must be excluded.

14. Reliance on isolated samples of atypical activities over peer-reviewed studies

An additional ground for excluding Longo’s testimony is his failure to apply the

same level of intellectual rigor that would be required in scientific circles to his

courtroom testimony.

As the Supreme Court framed it in Kumho Tire: “the objective of that [gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Kumho Tire, 526 U.S. at

152).

Longo tries to normalize his extremely high results by citing a few sample sheets— such

as Dow Chemical, Newport News, and Shell—that he has collected during the course of his

testifying for plaintiffs in asbestos litigation.77 Reputable scientists in the industrial hygiene

community do not rely on such unverifiable, incomplete sample sheets.78

Data points are not “studies” or “reports.” Such sampling sheets are “very poor quality

data because they lack the researcher’s full written report that puts them into the proper context.

75 Longo Report, p. 42 (Appx. A Ex. 2). 76 Id. at pp. 42, 47-48. 77 Longo Report, p. 87 (Appx. A Ex. 2). 78 Still Rebuttal Report, pp. 5-7 (Appx. B Ex. 11).


32

Thus, sampling sheets by themselves . . . would not be acceptable as support in peer-reviewed

literature.”79 Dr. Still’s rebuttal report explains the numerous problems with the three sample

sheets cited by Longo.80 Among the serious flaws is their lack of any practical relation to the

methods workers used to remove gaskets in the real world. See Chase, 856 F.2d at 19-20;

Gladhill, 743 F.2d at 1051-1052; Hoffman, 493 F. App’x at 973-76 (Expert must “make the

critical connection between lab tests and real world events.”).

Longo’s reliance on these data points, upon which he could not rely were he seeking to

publish in the peer-reviewed literature, violates the principle described in Frazier.

15. Improper pump calibration

MAS collected many samples—by Longo’s count, at least 14—in Work Practice Study

IV with pumps calibrated below 0.5 liters per minute.81 Doing so deviates from the NIOSH 7400

PCM method. Longo’s consistent modification and departure from the standards governing the

application of the techniques used in the MAS gasket experiments raises incurable concerns

about the reliability of those simulations.

C. Longo’s Inconsistent Results Evince Their Unreliability

“[A]n expert’s testimony should be excluded if testing his methodology does not generate

consistent results. Inconsistency of results demonstrates the method is ‘unreliable because it is

subjective and unreproducible.’” Soldo, 244 F. Supp. 2d at 559 (quoting Elcock v. Kmart Corp.,

233 F.3d 734, 747 (3d Cir. 2000)).

Not surprisingly, Longo’s lab has been unable to duplicate the results of its own

experiments. The following chart illustrates the wide variability in the short-term results of his

79 Id. at p. 5; Boelter Rebuttal Report, pp. 40-44 (Appx. B Ex. 3); Henshaw Rebuttal Report, pp. 3-4 (Appx. B Ex. 6). 80 Still Rebuttal Report, pp. 5-7 (Appx. B Ex. 11). 81 Longo Dep. pp. 194-196 (Appx. C Ex. 4).


33

later flange gasket studies. In a field in which previous studies measured the asbestos exposure

from gaskets in tenths or hundredths of a fiber per cc, these differences are enormous. Longo’s

history of inconsistent and ever-escalating results from testing gaskets is a strong indication of

unreliability.

Fibe

rs/c

c

Gasket Removal with Wire Brush

Short-Term Samples from Longo Experiments

0

10

20

30

40

50

60

70

80

90

1 2 3 3 (Power) 4 4 (Power) 5 (Power) Crane Crane (Power)

D. Longo’s Use of Tyndall Lighting is Mere Trial Theatrics, and Not a Scientifically Valid Asbestos Exposure Assessment Method.

A centerpiece of Longo’s work is the deceptive use of so-called Tyndall lighting

demonstrations from his gasket experiments. These involve the use of high intensity lighting to

illuminate dust in the air. The experiments take place in a chamber with the walls painted black.

During the work activities, the lights are turned off and high intensity beams of light are turned

on. The video purports to show the workers surrounded by dust that they otherwise would not

see. Longo typically narrates the video in his testimony, explaining that the percentage of dust in


34

the air is the percentage of dust in the product being manipulated. In the case of asbestos

gaskets, he says, 80-90% of the dust seen under the Tyndall lights is respirable asbestos.

His use of Tyndall lighting is pure theater. It is not an accepted method for assessing the

presence, concentration, or respirability of asbestos fibers in an individual’s breathing zone.

OSHA does not recognize the Tyndall lighting effect as a scientifically valid method for

occupational exposure monitoring.82 Tyndall lighting is incapable of producing any meaningful,

reliable information about airborne particulate, in general:

• Tyndall lighting does not differentiate between the types of particles illuminated, whether asbestos or non-asbestos.83

• Tyndall lighting does not identify the source of particles.84 As Garlock will demonstrate at the Estimation Trial, the chamber in which Longo conducts his experiments is contaminated with dust that does not originate from the gaskets studied.

• Tyndall lighting cannot quantify exposures in the individual’s breathing zone.85

No industrial hygienist in this case has used Tyndall lighting in their work to assess

occupational exposure to asbestos outside the courtroom, including Committee experts Mr.

Beckett and Mr. Templin. Mr. Beckett testified that Tyndall lighting “wouldn’t normally have

any place in an industrial hygiene study. Industrial hygienists don’t use the Tyndall effect to

demonstrate much of anything.”86 And later:

Q. You're not here today to endorse Tyndall lighting or Dr. Longo's Tyndall lighting demonstrations, right?

82 Spencer Rebuttal Report, p. 2 (Appx. B Ex. 9). 83 Boelter Rebuttal Report, p. 32 (Appx. B Ex. 3); Henshaw Rebuttal Report, p. 13 (Appx. B Ex. 6). 84 Id. at p. 13. 85 Spencer Rebuttal Report, p. 4 (Appx. B Ex. 9); Boelter Rebuttal Report, p. 32 (Appx. B Ex. 3). 86 Beckett Dep. p. 39 (Appx. C Ex. 5).


35

A. No, I wouldn't, you know – in my industrial hygienist head, Tyndall lighting has no room. It has other reasons, other purposes, but not from an occupational health, OSHA-related methodology.87

Similarly, Mr. Templin testified:

Q. Have you ever used Tyndall Lighting as an industrial hygienist in the field? A. I don't think I have ever personally made use of it, no, sir. Q. Have you ever made use of Tyndall Lighting in any situation as an industrial

hygienist outside of the courtroom? A. If so, I don't recall it. Q. Would you agree that it is not typically used by industrial hygienists to assess

asbestos exposures in the workplace? A. As that narrowly phrased I would say I would agree with that.88

Longo’s use of Tyndall lighting cannot, as a matter of science, tell us anything about the

exposure-related questions central to the estimation of Garlock’s actual legal liability for

mesothelioma claims.

Garlock engaged Lambertus Hesselink, Ph.D., a Stanford University electrical

engineering and physics professor and expert in optics to review Longo’s Tyndall

demonstrations and his testimony about the demonstrations. Specifically, Garlock asked Dr.

Hesselink if respirable sized asbestos particles scattered sufficient light to be recorded on

Longo’s off-the-shelf video camera. Dr. Hesselink conducted an experiment in his laboratory

and also constructed a mathematical model to answer the question. He demonstrates that

Longo’s testimony “is unsupported by the physics of how beams of light interact with

particles.”89 The asbestos fibers Longo purports to observe “are too small to be seen and

recorded by the cameras used by Dr. Longo in his experiments”—those instruments “are too

87 Id. at p. 134 (emphasis added). 88 Templin Dep. pp. 167-168 (Appx. C Ex.6). 89 Hesselink Report, p. 4 (Appx. B Ex. 7).


36

insensitive by orders of magnitude to record the light scattered from asbestos fibers of the size

[0.02 to 0.5 microns] Longo measures in his experiments at the concentrations that he reports.”90

Therefore, what Longo’s videos actually observe are particles which are larger than the

respirable range, and thus they are irrelevant to any attempt to assess exposure to respirable

asbestos fibers.

Longo admits that he is not an expert in photography, videography, or the physics of

light.91 He cannot answer basic questions about the sensitivity of the camera he used to record

his Tyndall lighting demonstrations. Instead, he counters Dr. Hesselink’s analysis with

statements that further reveal his lack of competence in this area.

Longo points to two experiments he conducted to counter Dr. Hesselink’s analysis. One

involved the pouring of Grade 7M chrysotile into a container. The other involved videotaping

someone smoking a cigarette in his chamber. Both activities were filmed under the Tyndall

lights.

1. Longo’s new “Pouring of Raw Chrysotile” experiment does not support his claims.

Longo says in his rebuttal report that he measured the fiber concentration of fibers during

the pouring of the 7M chrysotile using the air sampling equipment he would use in a gasket

study.92 He says the measurements showed that the average size of the particles was less 10

microns and that the particles were respirable fibers.93 Thus, he concludes that the video

showing light scattered from the particles under the Tyndall lights must be showing respirable

size fibers.94 His opinion is based on the assumption that his air sampling equipment would

90 Id. at pp. 4-5. 91 Longo Dep. pp. 39-40 (Appx. C Ex. 4). 92 Longo Rebuttal Report, p. 6 (Appx. A Ex. 3). 93 Id. at pp. 6-7. 94 Id. at p. 7.


37

capture all the particulate in the air and the analysis method would identify all the airborne

particulate. His explanation shows a lack of understanding of what 7M chrysotile is and of the

methods used to collect and analyze the air samples.

The air sampling equipment is designed to capture the fibers of respirable size, not all

particulate in the air. Much of 7M chrysotile by definition is in fact much larger than the

respirable size range of particulate. Chrysotile is graded based on the amount of chrysotile

captured by mesh screens of varying size. One ounce of every sixteen is captured by a screen in

which the width of the openings is 0.053 inches or 1.3 millimeters.95 Further, the analysis Longo

performed—“in general accordance with NIOSH 7400”—would not allow for the counting of

particulate larger than 100 microns. And, the method allows only for the counting of fibers,

those structures with a length to width aspect ratio of 3:1 or greater.

2. Longo’s new “Cigarette Smoke” experiment does not support his claims.

Longo’s conclusions from the Cigarette Smoke Study similarly show his lack of

knowledge of the subject he is trying to address. While it is true that cigarette smoke particulate

on average is less than one micron, as Longo says, the concentration of that particulate is far

higher than he reports. In fact, the reference Longo cites explains this. According to his own

source, the concentration ranges from 108 to 1010 structures per cc.96 Yet Longo says he found

the equivalent of 1 structure per cc in his analysis.97 Here again, he did not realize the limitation

of the equipment he used. He used a hand-held device that is not designed to measure the

concentration or even size of the particulate in cigarette smoke.

95 LeDoux RL. (1979) Mineralogical Association of Canada. Short Course in Mineralogical Techniques of Asbestos Determination. pp. 84-85, 87-89 (Appx. C Ex. 30). 96 Longo Dep. pp. 302-304 (Appx. C Ex. 4); Kijowski J. (1985) A review of particle size studies on cigarette smoke. p. 2 (section 4) (Appx. C Ex. 31). 97 Longo Dep. at pp. 301-302 (Appx. C Ex. 4).


38

Thus, rather than counter Dr. Hesselink’s analysis in any scientific way, Longo revealed

his willingness to give opinions on scientific matters he does not understand and the lack of

thoroughness of his research.

VII. False and Misleading Representations Pervade Longo’s Expert Report and Rebuttal Report, Demonstrating Both Lack of Intellectual Rigor and Lack of Candor.

Regardless of whether an untrue statement was knowingly made, an expert’s untrue

statement “does provide an additional basis – apart from conventional Daubert/Kumho analysis –

for exclusion of his proffered expert testimony.” Pearson, 2002 U.S. Dist. LEXIS 26263, at

*10-11 (excluding the expert’s testimony because he made a statement to the court that was

clearly established to be false).

The requirement of intellectual rigor logically applies not only to in-court testimony but to the proposed expert’s compliance with Rule 26 obligations and other facets of the expert’s litigation engagement. [Citations omitted]. Even the most indulgent assessment of intellectual rigor presupposes that the witness will have taken care to avoid misrepresentations to the court as to matters of objective, concrete fact.

Id., at *11-12.

Unlike the excluded expert in Pearson, who made only one untrue statement, Longo has

admitted to a litany of additional factual errors in his expert report and rebuttal report in this

case, and in his underlying gasket experiments. Some of Longo’s untrue statements are

independently egregious. As to others, if there were only a few, perhaps it might be possible to

accept Longo’s characterization of them as “silly little typos.”98 But the pervasiveness and sheer

number of these errors and misrepresentations throughout all facets of Longo’s work99

demonstrate the complete lack of intellectual rigor with which Longo approaches his

98 Longo Dep. p. 253 (Appx. C Ex. 4). 99 See e.g., Boelter Rebuttal Report, pp.39-40 (Appx. B Ex. 3).


39

experiments and his testimony. Thus, these errors present more than a mere credibility issue;

they evince the inherent unreliability of everything Longo claims.

It is also important to keep in mind that Garlock has only reviewed the data and

documents produced. Garlock does not know what has gone on behind the closed doors of

Longo’s lab where the data is generated.

A. Longo’s Lack of Candor in His Attempt to Rebut Debtors’ Experts

Bias and candor issues are essential in the Court’s Rule 702 analysis. For example, “if a

proposed expert is a ‘quintessential expert for hire,’ then it seems well within a trial judge’s

discretion to apply the Daubert factors with greater rigor. . . .” Johnson, 484 F. 3d at 435.

Longo’s colors as a quintessential expert for hire show through brightly in his rebuttal report, in

which he misstated facts and science in a vain effort to discredit the work of true industrial

hygienists, experts who possess the certification Longo lacks necessary for assessing workplace

exposure to asbestos.

In his rebuttal report, Longo claims that Beckett (another Committee expert) told him that

the “Bremerton Gasket Study . . . was done under abnormal conditions because of the presence

of a number of senior personnel who were observing the study, a shipyard photographer

documenting the study, and house keeping controls utilized during the study.”100 Longo recently

testified in another case that “. . . Mr. Beckett stated, this was a study that was – where you had

ship photographers, you had all the brass watching the studies, and they were not representative

of what usually goes on with gaskets studies.”101

100 Longo Rebuttal Report, p. 17 (Appx. A Ex. 3). 101 Longo Dep. from Seaborn v. A.W. Chesterton Co., et al., in the Third Judicial Circuit Court, Madison County, Illinois, (May 6, 2013) (Rough Draft Transcript), p. 190 (Appx. C Ex. 23); see also Beckett Dep. pp. 79-80 (Appx. C Ex. 5).


40

As nicely as he could put it, Beckett said this is not true, describing Longo’s misquoting

him as “inflating” and “embellishing.”102 Of course, scientists are supposed to be carefully

factual—especially when they take on the role of expert to assist a court or jury in understanding

scientific issues. All Beckett actually told Longo was that Beckett believes the investigators did

not take samples aboard ship.103 Beckett testified that, contrary to Longo’s characterization of

Beckett’s opinions, “there’s no question in my mind that for the majority of the work, senior

management personnel was not present,” and, regarding the photographers, “being a

demonstration of the type of work that’s present doesn’t mean that the individual worker was

coerced into doing something that he didn’t normally do.”104 Beckett stands by the

representativeness of results of the tasks sampled in the Bremerton Study.105

B. False Statements about an Electric Grinder’s Capability of Damaging Flanges

Longo’s report states:

a simple rule used in material science demonstrates why these Garlock experts are wrong when they say workers would never use wire brushes to remove the old gaskets because of the potential damage to the steel flanges. This rule is that a softer material cannot scratch a harder material. In this case, the wire brushes are a harder material than a synthetic rubber asbestos-containing gasket, but a softer material than a steel

102 Id. at pp. 81 (“I don’t recall ever having mentioned to him that ‘brass’ were present”), 82 (“perhaps Dr. Longo has inflated the idea here”), 91 (“I didn’t imply this to Longo”), 146 (“it seems like he embellished what we were talking about a little.”), 148 (“I do not recall using the words ‘Navy brass.’ I don’t know what he interpreted that I may have said . . . .”), 297 (“I know personally that he did a little embellishing on my statement”)). 103 Beckett’s belief is clearly mistaken, as the plain text of the Bremerton study proves. See U.S. Navy Study at p. 1 (“The majority of the samples were collected by NRMC Bremerton at Puget Sound Naval Shipyard in various shops and aboard ship.”) (emphasis added) (Appx. C Ex. 2). Beckett admitted he was not present while the samples were taken, and would have to defer to the data. See Beckett Dep. pp. 84-86 (Appx. C Ex. 5). In any event, Beckett could not identify any specific task involving gaskets that was not sampled. Id. at pp. 88-89. 104 Id. at pp. 91-92. 105 Id. at pp. 90, 92


41

flange. This allows the use of a wire brush to remove the old gasket without damaging the steel flange surface.106

The carbon steel wire brush attached to the 11,000 rpm angle grinder is much harder than the

steel flanges.107

C. Untrue Statements about Pipefitters and Machinists’ Exposure to Thermal Insulation

Attempting to discredit the opinions of Dr. Still and Mr. Boelter regarding the extremely

high exposures workers would have received from thermal insulation, Longo argues that (1)

removal of permanent thermal insulation like that removed in the Pipefitter Exposure

Assessment,108 was never performed by pipefitters or machinists and (2) that permanent asbestos

thermal insulation was “never used on valves” after being replaced entirely by portable

insulation covers by “the very early 1960’s.”109 This characterization of pipefitters and

machinists’ work with thermal insulation is simply not true.

Longo is basing these opinions, not on personal experience or observation, or any review

of the literature, but on representations made by other Committee experts.110 These other experts

confined their opinions in this regard to shipyard settings.111 Longo thus has no basis to claim

that pipefitters and machinists in commercial or industrial settings did not remove insulation with

hammers. Moreover, pipefitters and machinists in the Navy often removed permanent thermal

insulation with hammers, as was done in Boelter’s assessment.112 And in any event, pipefitters

106 Longo Report, p. 36 (emphasis added) (Appx. A Ex. 2). 107 Longo Dep. pp. 132-133 (Appx. B Ex. 4); Van Orden Rebuttal Report, p. 5 (Appx. B Ex. 12). 108 The study reported in Boelter’s Report (Appx. B Ex. 2). 109 Longo Rebuttal Report, pp. 8-9 (Appx. A Ex. 3). 110 Id. at p. 9; Longo Dep. pp. 37-39, 287-288 (Appx. C Ex. 4). 111 Beckett Dep. p. 268 (Appx. C Ex. 5); Shoemaker Dep. p. 77 (Appx. C Ex. 7). 112 Wasson Report, p. 24 (“The excerpts of [Boelter’s] insulation fabrication, installation, removal, and cleanup reflect activities and conditions I routinely saw in the 1960s aboard ship when similar work was conducted.”) (Appx. B Ex. 13).


42

and machinists were typically working side by side with the insulators as they were working with

the insulation.113

1. Permanent asbestos insulation was commonly used on Navy ships until 1972.

The following diagrams, Figures 9390-9 and 9390-10 from the 1966 BuShips Technical

Manual chapter on thermal insulation, which governed the application of insulation on Navy

ships until 1972, show permanent insulation (often made with amosite asbestos) was still being

specified for use on valves and flanges in the late 1960’s.114

2. Longo is wrong about the types of insulation covering valves onboard the USS Lexington.

Longo goes on to discuss photos he took onboard the USS Lexington aircraft carrier in

conjunction with his Crane Valve Study.115 He states absolutely: “Every insulated valve that I

observed on that ship was covered with these types of portable pads.”116 In actuality, many of

113 Shoemaker Rebuttal Report, p. 6 ¶ 42 (Appx. A Ex. 4); Shoemaker Dep. pp. 211-212 (Appx. C Ex. 7). See also Deposition excerpts of former Navy tradesmen (Appx. C Ex. 19). 114 Bureau of Ships Manual, Chapter 9390, Thermal Insulation, (15 January 1966) p. 15. (Appx. C Ex. 20). 115 Longo Rebuttal Report, p. 9 (Appx. A Ex. 3). 116 Id.


43

the valves and flanges onboard the USS Lexington to this day contain permanently insulated

valves.117

While Longo may not have had the knowledgeable eye to observe them, the permanently

insulated valves and fittings are there. Thus, his statement is misleading.

Longo further claims, without any supporting data, that potential asbestos exposures of

pipefitters and machinists who removed the portable covers “would be expected to be very low,

as compared to the removal of hard insulation.”118 This statement is misleading. Longo either

ignores or is unaware of the requirement that the void spaces under the removable covers be

packed with loose amosite felt, and that the covers themselves were made of amosite fibers.119

Thus, a person who had to remove these portable insulation covers from valves and flanges in

order to change a gasket would not have needed a hammer to be exposed to free amosite fibers.

They were loose and had the potential to become airborne as the pads were removed.

117 See Photographs taken by Capt. Wasson onboard the USS Lexington (April 2013) (Appx. C Ex. 21); see also Wasson Dep. pp. 19, 54 (Appx. C Ex. 22). 118 Longo Rebuttal Report, at pp. 8-9 (Appx. A Ex. 3). 119 Bureau of Ships Manual, Chapter 9390, Thermal Insulation, (15 January 1966), p. 13, art. 9390.54 (Appx. C Ex. 20).


44

3. Longo’s recent insulation “cut-back” removal experiment is not representative of real world work

In response to Boelter’s Pipefitter Exposure Assessment, Longo performed another

experiment at MAS, the “Thermal Insulation Removal for Valve Repair” experiment, in an effort

to downplay the amount of thermal insulation exposure a pipefitter would experience by

“simulat[ing] a pipefitter removing pipe insulation back from a valve to expose the flange bolts

(cut-back)” using a “typical box knife.”120 Like so many of Longo’s other experiments, there are

numerous problems with this new experiment.

Longo cites no sources for his claim that this “cut-back” ever occurred in the real world.

His stated purpose in performing the experiment was to assess insulation exposure during valve

repair, but there was not even a valve on the piping system Longo was testing.121 Thus, no

consideration was given to the exposure a pipefitter would have had from the amosite-stuffed

portable covers Longo claims were always on the valves. And it is intentionally unrepresentative

of industrial exposures where cement covers the flanges and fittings—cement which was

removed by workers with hammers in industrial settings.122 This experiment is therefore

irrelevant to the issues involved in this case and misleading. Longo’s opinions relating to this

experiment should be excluded.

4. Longo is wrong in his accusations of Dr. Still’s supposed failure to disclose the existence of portable pads

Longo shows further lack of intellectual rigor by falsely alleging that Dr. Still “provided

no description of the portable insulation valve pads used by the Navy to insulate valves” in his

120 Longo Rebuttal Report, p. 20 (Appx. A Ex. 3). 121 Longo Dep. pp. 305-307 (Appx. C Ex. 4). 122 Deposition excerpts of former Navy tradesmen (Appx. C Ex. 19).


45

expert report.123 Perhaps Longo simply does not have the expertise to recognize that Figure 6,

which occupies nearly an entire page of Dr. Still’s report, is a diagram of a flange insulated with

a portable insulation cover.124 As shown below, the drawing Dr. Still used in his Figure 6 (which

came from ship drawings) is nearly identical to the drawing used by the BuShips Technical

Manual chapter on thermal insulation.125 The pad is identified as “amosite asbestos blanket” in

the diagram in Dr. Still’s report, and as “asbestos blanket” in the diagram from the manual.

(Sti

ll R

epor

t, p.

29)

123 Longo Rebuttal Report, p. 10-11 (Appx. A Ex. 3). 124 Still Report, p. 29 (Appx. B Ex. 10). 125 Bureau of Ships Manual, Chapter 9390, Thermal Insulation, (15 January 1966), Fig. 9390-7 (Appx. C Ex. 20).


46

(BuS

hips

Tec

h. M

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0-7)

D. Misleading Statements about the Presence of Amphiboles in Garlock Gaskets

It was Longo’s engagement by the Committee that prompted him to “reanalyze”

Garlock126 gasket samples from a previous experiment originally conducted in 2002.127 This

reanalysis—eleven years after the initial test—purported to identify crocidolite contamination in

another of Garlock’s chrysotile gaskets, a finding that unsurprisingly, has not been sent to any

outside lab for quality control or verification purposes.128 Yet Longo states, “Dr. Stevenson

verified for QA/QC purposes that amphiboles detected by our laboratory were properly identified

in the two samples that he analyzed.”129 This statement is misleading. Neither sample Longo

identified as containing crocidolite was verified by Dr. Stevenson, who also did not verify any of

the quantification data Longo is now reporting.130

126 These gaskets, with the exception of one, came from plaintiffs’ lawyers; Longo has no other source from which he can identify these gaskets as being manufactured by Garlock. See Longo Dep. pp. 61-63 (Appx. C Ex. 4). 127 Id. at pp. 54-55. 128 Id. at pp. 55-57. 129 Longo Report, p.15 (Appx. A Ex. 2). 130 Longo Dep. pp. 52-57 (Appx. C Ex. 4).


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Longo’s report also claims that anthophyllite was found in Garlock gasket sample

M18549-003.131 Longo admits this statement is false.132

E. Cherry-Picking Data from the U.S. Navy Study133

Longo uses cherry-picked data to support his opinions while failing to disclose the data

that does not support his opinions, as illustrated by an examination of Longo’s statements about

the data reported by the 1978 study commissioned by the U.S. Navy entitled “Asbestos Exposure

from Gasket Operations,” which is also known as “the Bremerton study.”

Longo states the Bremerton study “measured gasket removal with scraping and hand wire

brushing that ranged from <0.03 f/cc to 0.18 f/cc with an average of 0.11 f/cc from eight air

samples.”134 Longo seeks to discredit these low results by claiming that because the study was

done under housekeeping controls,

the concentration of asbestos fiber release from this gasket removal activity would be much less then [sic] if IH controls were not used. Therefore, the Bremerton study is not a good indicator for asbestos fiber exposure in the field because during this time frame, IH controls were not typically used during the removal of asbestos-containing gaskets off of flanges.135

This claim misrepresents the nature of the data reported by the Bremerton study. Not

only does Longo mischaracterize the controls that were used during sampling of this activity,

Longo fails to mention the fact that 14 samples were taken during gasket removal using hand

scraping with no controls, resulting in a range of <0.06 f/cc to 0.39 f/cc with an average exposure

of only 0.13 f/cc. These are all values for short term samples that are well below even today’s

131 Longo Report, p. 15 (Appx. A E. 2). 132 Longo Dep. pp. 58-59 (Appx. C Ex. 4). 133 (Appx. C Ex. 2). 134 Longo Report, p. 80 (Appx. A Ex. 2). 135 Id.


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asbestos safety limits. This data was reported on the same page136 as the data Longo cherry-

picked, as shown below.

The “housekeeping,” as explained by the authors of the study, consisted of disposing of the

material appropriately after removal so that it could be processed with other asbestos waste.

None of these housekeeping activities reduced the exposures from the activities studied.137

F. Examples of Absolute Statements Made By Longo Which Are False

As discussed above, Longo’s testimony about “absolutely what happened” during the

first personal sampling period in Gasket Study V proved to be untrue.138 But this is not the only

instance where Longo’s categorical statements about critical issues have proven false.

Longo claims that the asbestos in insulating cements “was always chrysotile.”139 But

several documents show that several kinds of insulating cements were made with amphiboles,

including crocidolite, by multiple manufacturers.140

In another less-than-candid statement, Longo writes in his rebuttal report:

136 U.S. Navy Study, at p. 41 (Appx. C Ex. 2). 137 Still Rebuttal Report, p. 4 (Appx. B Ex. 11); Liukonen Rebuttal Report, p. 2 (Appx. B Ex. 8); Liukonen Dep. pp. 22-23 (Appx. C Ex. 27); Beckett Dep. p. 192 (Appx. C Ex. 5). 138 Longo Dep. pp. 238-245 (Appx. C Ex. 4). 139 Longo Report, p. 112 (Appx. A Ex. 2). 140 Longo Dep. pp. 288-297 (Appx. C Ex. 4).


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Since the publication of our paper in January 2002, not one letter to the editor of this journal was ever sent by anyone criticizing our published gasket removal studies. The experts even hired by Garlock, both in the past or the present, never sent any criticisms or comments about our studies.141

This is also false. Carl Mangold wrote a letter to the editor criticizing Longo’s paper, but it was

not published. Longo knows about the letter and has testified about it.142

Also, in response to a letter to the editor that Longo and other MAS employees wrote to

criticize Boelter’s 2003 published study on gaskets, Boelter provided his own letter to the editor

which points out numerous flaws in Longo 2002.143 Longo has not published a peer-reviewed

article since. Boelter’s studies of various aspects of gasket and packing removal have continued

to be accepted for publication.

In his rebuttal report, Longo remarks:

Dr. Still seems to have "forgotten" that all high temperature valve systems in any Naval ships built from the late 1950's to the early1960's and on would only have been insulated with these portable pads, and NOT with the multi-layer hard thermal insulation, that he described in his expert report.144

Longo cites no data to support this conclusion, and indeed, the BuShips technical manuals on

insulation show that he is wrong.145 Further, as discussed above, the USS Lexington to this day

contains valves and fittings with “hard insulation.”146

The simple fact is: Longo’s level of certainty regarding an issue is decidedly unhelpful to

the Court’s determination of that issue.

141 Longo Rebuttal Report, p. 15 (Appx. A Ex. 3). 142 Longo Dep. in Beadle v. Ametek, Inc., et al., in the 11th Judicial District Court of Harris County, Texas (Vol. II, May 5, 2008), pp. 291-293 (Appx. C Ex. 28). 143 Boelter FW. (2003) (Appx. C Ex. 10). 144 Longo Rebuttal Report, p. 10 (Appx. A Ex. 3). 145 Bureau of Ships Manual, Chapter 9390, Thermal Insulation, (15 January 1966) (Appx. C Ex. 20). 146 Photographs taken by Capt. Wasson (Appx. C Ex. 21).


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G. Additional Untrue Statements

Additional examples of untrue statements, errors, and misrepresentations made by Longo

include:

• Failing to disclose the complete picture of reliable industrial hygiene data on gasket fabrication.

• Stating the valves from his Crane Valve Study came from systems that they did not come from, and some systems that do not exist.147

• Stating that a Garlock plant was located in Palmyra, New Jersey148 when in fact the plant is in Palmyra, New York.149

• Mislabeling the machinery in images he lifted from the U.S. Navy study. (Longo Report, pp. 26-27; Longo Dep. pp. 105-106).

VIII. Templin’s Opinions are Unreliable Because He Fails to Require the Studies Upon Which He Relies to Follow Accepted Scientific Methodologies.

Rule 702 requires the Court to exclude expert testimony that is based on insufficient facts

or data, or testimony that is the product of unreliable principles and methods. See also Kumho

Tire, 526 U.S. at 149; Daubert, 509 U.S. at 597 (the court plays a “gatekeeping” role regarding

the admissibility of expert testimony). Templin’s opinions are derived from data that was

produced by unsound methodology, and must be excluded.

A. Using Only “General Accordance” with Accepted Methodology

In the same way that Longo claims only “general accordance” with standard scientific

methodologies for collection and analysis of samples (see section VI.B., supra), Templin admits

that he “consistently” uses that terminology to describe the methods he uses in his industrial

147 Longo Dep. pp. 264-266 (Appx. C Ex. 4); Wasson Dep. pp. 56-58; 85-86 (Appx. C Ex. 22). 148 Longo Report, p. 79 (Appx. A Ex. 2). 149 Longo Dep. pp. 59-60 (Appx. C Ex. 4).


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hygiene practice.150 Also like Longo, Templin cannot describe how use of the phrase “general

accordance” with a method describes what modifications to the method have been made.

Q. Does that mean you are not following the method or you are following the method?

A. It means that you are following the method in general.

Q. What does that mean that you are following the method in general?

A. It means that while metaphorically speaking perhaps not every "t" has been crossed nor every "i" dotted, that nothing of a significant departure from the method that would have an impact on the findings of the study has taken place.

Q. Why can't you just follow the method?

A. The method is many pages long.· It has got many components to it and again basically if you say you are following the method then you are saying, you are assuring in fact that you have crossed every "t" and dotted every "i". Nobody in the practice of engineering or laboratory analysis does that.151

Templin is essentially stating that he sees no need to ensure accuracy because of the complexity

of NIOSH 7400. But accepted scientific methodologies are complex for a reason. Templin’s

willingness to deviate from complex methods is unscientific and warrants exclusion of his

opinions. Such undefined, non-standard methodologies prevent studies from being reproduced

and results from being able to be replicated. Soldo, 244 F. Supp. 2d at 559. Templin’s reliance

upon MAS experiments that only “generally” follow the methods required by the scientific

community make his opinions based upon them unreliable. The Court should exclude his

opinions under Daubert and Rule 702.

B. Misunderstanding of NIOSH 7402 Magnification Requirements

As discussed above, data sheets from MAS Work Practice Studies IV and V and from the

Crane Valve Study report that the magnification used was 20,000X or higher, even though

NIOSH 7402 specifies the magnification to be used for fiber counting is 500-1,000X. Templin’s

150 Templin Dep. pp. 208-209 (Appx. C Ex. 6). 151 Id. at pp. 209-210 (emphasis added).


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testimony about this error further elucidates the unreliability of his opinions because not only

does he not know what magnification is required under the method,152 he does not understand

why compliance with the method is important:

Q. If the maximum magnification for counting was 1,000, then it would be incorrect for MAS microscopists to do the analysis at 20,000 or 25,000, correct?

A. I don't see where that would make any difference as long as one actually followed

the rules in the 7402 method for what can and cannot be counted.153

IX. Templin Misrepresents Data in His Report, Demonstrating a Lack of Candor that Warrants Exclusion of his Opinions.

Templin’s reports and testimony in this case suffer from misrepresentation of facts and

science, demonstrating that he, too, “lack[s] the objectivity that is the hallmark of scientific

method.” Claar v. Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir. 1994). Thus, in

determining whether Templin’s testimony should be admitted, the Court should place no less

importance on examining the bias and candor issues. Exclusion of expert testimony such as

Templin’s is required because candor is lacking and the witness has not “taken care to avoid

misrepresentations to the court as to matters of objective, concrete fact.” Pearson, 2002 U.S.

Dist. LEXIS 26263, at *12.

A. Misrepresentation of Fiber Release Data from Gaskets and Packing

Templin’s report purports to describe the “reasonable exposure range estimates for

commonly occurring activities performed with asbestos-containing gaskets and packing.”154 But

these ranges are largely cherry-picked, or worse, unsupported by the sources he cites. This is the

mark of advocacy, not science.

152 Id. at p. 330. 153 Id. at p. 331. 154 Templin Report, unnumbered p. 10 (Appx. A Ex. 5).


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For fabrication of gaskets, Templin cites five sources he claims support his range of

exposure. One of these sources, McKinnery & Moore, does not report gasket fabrication data.

Templin admits this is an error in his report.155 Templin also cites a data sheet that does not

provide gasket fabrication data.156 Another source he cites for his gasket fabrication data is a

study paid for by asbestos plaintiffs’ lawyers that was not peer-reviewed. Instead, it is a book

chapter of a series that is edited by lawyers, not scientists. Templin claims he was not aware of

the source of funding for the study or of who edited the book, but states that external funding of

research “is of interest to note.”157

The next exposure range Templin misrepresents is for removal of gaskets, which he

claims has a range from 10-3 to 30 f/cc. One source he cites for this claim is an unpublished

MAS experiment with valve packing removal and replacement, which does not report any data

for gasket removal.158 The source Templin relies upon for the high exposure value is Longo

2002, which is unreliable for the reasons discussed above. Templin cites Longo’s paper,

apparently without ever reviewing the data it reported; he had never noticed the elevated

background level reported in one of the experiments before reading Longo’s deposition in this

case.159

When confronted with Longo’s inaccurate reporting of the data in the published paper,

Templin stated he did not know whether a researcher has an obligation to report inaccurately

published data to the editor.160 But Templin also testified:

Q. If you had published a paper and you discovered that there was inaccurate data reported in the paper, would you write to the editor to note that error?

155 Templin Dep. pp. 181-184 (Appx. C Ex. 6). 156 Templin Dep. pp. 186-187 (Appx. C Ex.6). 157 Id. at. pp. 184-186. 158 Id. at pp. 187-188. 159 Id. at. pp. 192-193. 160 Id. at. pp. 189-191.


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A If it was in a time frame as to make a difference and it was brought to my attention or I found out on my own, I think likely that I would.161

Templin was similarly undisturbed by the failure of Longo (2002) to disclose the source of

funding for the underlying experiments, Templin claimed that if “the paper per se” was not

funded by anyone, “there would be nothing to disclose,” even though Templin understands “at

least some of” the experiments the paper reports on were funded by plaintiffs’ lawyers.162

The final ranges of exposure Templin reports are for cutting and installing replacement

packing material, and for removing packing material. Templin cites the same four sources for

both of these ranges: one published study, the U.S. Navy Study on Gaskets, one sample sheet,

and a deposition transcript. None of these documents reports any data on the cutting,

installation, or removal of packing.163 Thus, despite his representations to the contrary, his

opinion is not based on an understanding of the literature. The Court cannot take it on faith that

Templin is accurate.

B. Misrepresentation of the National Research Council’s Data for Nonoccupational Environmental Exposure Levels

Templin reports that “a reasonable estimate of the airborne asbestos concentration in the

ambient air of urban areas in the United States for the 1960s and 1970s is 0.00005 f/cc.”164 In so

stating, Templin fails to disclose the other levels reported in the 1984 National Research Council

(NRC) publication which he cites. The “reasonable estimate” Templin reports is one of the

lowest data points reported in the NRC table, and is nowhere near the levels the NRC ultimately

chose to represent the median (0.0004 f/cc) and high (0.002 f/cc) nonoccupational environmental

161 Id. at pp. 191-192. 162 Id. at pp. 188-189. 163 Id. at. pp. 196-198. 164 Templin Report, unnumbered p. 10 (Appx. A Ex. 5).


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exposure levels.165 When confronted with the levels the NRC adopted, Templin stated that this

document, which he cited in his report as reference 19, “doesn’t look familiar to me.”166

Such lack of candor in selecting only values that advance his opinion while ignoring the

data actually reported in the sources he cites is advocacy, not science.

C. Templin’s Insupportable Attack on Exposure Science

Templin attacks the exposure assessment of Henshaw, whom Garlock engaged to review

the exposure information provided by claimants in response to the questionnaires. He claims

“Reconstruction of past exposures is impossible.”167 He supports his attack in part with a quote

from a “draft affidavit” from an industrial hygienist who testifies for plaintiffs, in which

retrospective dose reconstruction is described as an “illegitimate undertaking.”168

Retrospective exposure reconstruction is recognized as science and necessary in toxic tort

cases. The Federal Judicial Center’s Reference Manual on Scientific Evidence (3d ed.) contains

a Reference Guide on Exposure Science. The author of that guide, Joseph Rodricks, is one of the

signatories to the Pipefitter Exposure Assessment cited by Henshaw in his exposure assessment.

Scientists have long used precisely these techniques to make decisions about groups of

population, as even a medical witness for the Committee concedes:

Q. In scientific research into asbestos disease, researchers have, however, looked at various groups of workers and considered them collectively for making decisions, correct?

A. Certainly.

165 National Research Council (U.S.) Committee on Nonoccupational Health Risks of Asbestiform Fibers. (1984). Asbestiform Fibers: Nonoccupational Health Risks. Washington, DC: National Academy Press. pp. 219-221 (Appx. C Ex. 24). 166 Templin Dep. p. 216 (Appx. C Ex. 6). 167 Templin Report, unnumbered pp. 13, 15 (Appx. A Ex. 5); Templin Rebuttal Report, p. 2 (Appx. A Ex. 6). 168 Templin Report, unnumbered pp. 13 (Appx. A Ex. 5); Templin Dep. pp. 233-234) (Appx. C Ex. 6).


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Q. And in that context especially, retrospective dose reconstruction is quite helpful; is that correct?

A. I would agree with that.169

D. Templin’s Misstatements on Epidemiology and Methodology for Causation Determinations

Templin, who is neither an epidemiologist nor medical doctor of any kind, attempts to

opine on issues of epidemiology. Not only should the Court reject this testimony for the reasons

below, the fact that Templin is willing to claim expertise in a field where he clearly lacks it, and

that he so blatantly misstates science and fact, demonstrates that he, like Longo, will not hesitate

to express opinions on matters he does not understand, and misconceives the proper role of a

science expert in litigation.

1. Insupportable opinions about the Bradford Hill Criteria.

Templin discusses a technique known as the Bradford Hill Criteria, which is a method for

evaluating epidemiology studies described in the Federal Judicial Center’s Reference Manual on

Scientific Evidence (3d) edition. As with the Committee’s medical witnesses, Mr. Templin

advanced a theory that Bradford Hill could be used without first having a series of statistically

significant epidemiology studies to evaluate with the method. He argues that “epidemiology [is]

a term that does not appear in Sir Austin Bradford-Hill’s criteria for establishing medical

causation.”170

Both medical science and case law disagree with Templin. The law was recently

summarized in Frischhertz v. SmithKline Beecham Corp., 2012 U.S. Dist. LEXIS 181507, *9-10

(E.D. La. Dec. 21, 2012):

169 Brodkin Dep. pp. 39-40 (Appx. C Ex. 25). 170 Templin Report, unnumbered p. 16 (Appx. A Ex. 5); Templin Dep. pp. 270-272 (Appx. C Ex. 6).


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The Bradford-Hill criteria can only be applied after a statistically significant association has been identified. Federal Judicial Center, Reference Manual on Scientific Evidence, 599, n.141 (3d. ed. 2011) (“In a number of cases, experts attempted to use these guidelines to support the existence of causation in the absence of any epidemiologic studies finding an association . . . . There may be some logic to that effort, but it does not reflect accepted epidemiologic methodology.”). See, e.g., Dunn v. Sandoz Pharms., 275 F. Supp. 2d 672, 678 (M.D.N.C. 2003).

2. Espousing an “every exposure contributes” opinion on causation that has been rejected by the courts

Templin, who is not an epidemiologist, pathologist, toxicologist, or pulmonologist,

believes “each [asbestos] exposure is viewed as increasing one’s risk of developing asbestos-

related disease, including mesothelioma.”171 Not only does Templin not have the expertise to

opine on such an issue, such an opinion has been rejected by recent state court opinions, and

described as a “fiction,” Betz v. Pneumo Abex, LLC, 44 A.3d 27, 56-57 (Pa. 2012) 172 (quoting

Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 226-27 (Pa. 2007)), and “an untested and

potentially untestable hypothesis,” Butler v. Union Carbide Corp., 712 S.E.2d 537, 552 (Ga. Ct.

App. 2011); see also Brooks v. Stone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006);

Dixon v. Ford Motor Co., 47 A.3d 1038 (Md. App.), cert. granted, 55 A.3d 906 (Md. 2012);

Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007).

This “every exposure contributes” opinion has also been firmly rejected by federal courts.

Smith v. Ford Motor Co., 2013 WL 214378, *5 (D. Utah Jan. 18, 2013) (agreeing with “various

state and federal courts that the every exposure theory does not qualify as admissible expert

testimony”); Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004), aff’d sub nom;

171 Templin Report, unnumbered p. 13 (Appx. A Ex. 5). 172 The Betz decision’s rejection of the “every exposure contributes” theory negated the basis for the federal court decision in In re Asbestos Prods. Liab. Litig (No. VI) (Rabovsky v. Air & Liquid Sys. Corp.), 2012 WL 252919 (E.D. Pa. Jan. 25, 2012), adopted, 2012 WL 876752 (E.D. Pa. Mar. 13, 2012), which was based on Pennsylvania law prior to Betz.


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Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005); Sweeney v. Saberhagen

Holdings, Inc., 2011 WL 346822, *6 (E.D. Pa. Jan. 13, 2011) (“a mere “minimal exposure” to a

defendant’s product [is] not sufficient to establish causation”), adopted, 2011 WL 359696 (E.D.

Pa. Feb. 3, 2011).

3. Lack of knowledge on statistical significance

Additionally, Templin does not understand the basic epidemiological concept of

statistical significance:

Q. Do you know what a statistically significant association is in epidemiology?

A. I could not give you a definition off the top of my head, no.

Q. What is your understanding of a statistically significant epidemiologic relationship?

A. I have seen numerous definitions of that that seems to depend on much like beauty, it is in the eye of the beholder or the researcher as the case may be.

***

Q. Can you give us any of the characteristics of a statistically significant relationship in epidemiology?

A. No, sir.

Q. You cannot tell us anything about that, what the risk must be, what the confidence intervals must be, what the confidence level must be?

A. No.

Q. Is it fair to say that you are not going to be appearing in court to testify about the statistically significant epidemiology regarding chrysotile causation of mesothelioma?

A. I think it would be fair to say that.173

173 Templin Dep. pp. 274-275 (Appx. C Ex. 6).


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The Court should disallow any attempt on Templin’s part to proffer testimony about

epidemiological and medical matters of which he knows nothing about, including but not limited

to, general and specific causation of disease.

E. Templin’s Insupportable Attack on Historical Statements about the Lack of Health Hazard in Gasket Use

Templin attacks leading asbestos researchers of the 1970s—including Dr. Selikoff, the

foremost advocate against dangerous asbestos products. Templin claims Selikoff did not

exercise “sound” judgment in writing that gaskets and packing pose no health hazard in forms

used in shipyard applications.174 Templin has no personal knowledge of the information Selikoff

had that led him to the conclusion, and he discounts the subsequent studies proving Dr. Selikoff

was right.

To attack those studies, he peppers his report with untrue statements, the most absurd of

which is that the seminal 1978 U.S. Navy Study did not test real world removal practices.175 The

insupportable statements Templin makes in his attempt to discount the U.S. Navy Study are

discussed in the next section.

F. Templin’s Insupportable Reasons for Rejecting the U.S. Navy Study

One of the many reasons Templin’s opinions must be excluded is his rejection on

specious grounds of data contrary to his position. Nowhere is this more evident that in his

rejection of the 1978 U.S. Navy Study. Although he did not participate in the study, he

contends, it was not “conducted in the field of workers under actual conditions.”176 All three

persons who signed the report have testified in this case, two for debtors and one for the

Committee. The reports of Debtors’ experts, who actually did the field work for the study, and 174 Selikoff I, Lee D. Asbestos and Disease p. 467 (1978) (Appx. C Ex. 1); Templin Report, unnumbered pp. 7-8 (Appx. A Ex. 5). 175 Id. at unnumbered p. 8. 176 Id.


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the testimony of the Committee expert who supervised them, confirms that the U.S. Navy study

was a real world study that did, indeed measure real world activities.177

Rather than formulate an opinion based on a thorough “real world” study like the U.S.

Navy study, Templin claims “The only study that I know of addressing gasket removal in a field

operation with minimal control is commonly referred to as the Shell gasket study performed in

1985 at Shell Oil Company’s Wood River, IL refinery.”178 Yet this is not a published or

systematic study, it is a single sampling form, filled out in handwriting. All that is known based

on the little information that this form reveals is that it is not intended to be representative of

normal gasket use. It reads: “simulated worst case situation.”179 And the activity described is

undeniably atypical.180

Templin’s preference for a single sample simulation trying to simulate a “worst case

situation” over a systematic study of real activities is scientifically insupportable methodology.

X. Conclusion

To demonstrate the unreliability of Longo and Templin’s opinions, this brief has

attempted to elucidate the most egregious examples of the countless flaws of methodology,

mischaracterizations of the data, and false statements of fact in their reports, rebuttal reports, and

underlying studies. Of course, those discussed are only those which are capable of being

identified. In determining whether to exclude their opinions, the Court should ask what else is

unreliable?

These are not “silly little typos.” These refusals to follow proper methodology make it all

the more significant that it is impossible to determine whether the microscopists reported the

177 See e.g., Beckett Dep. pp. 90, 92 (Appx. C Ex. 5). 178 Templin Report, unnumbered p. 9 (Appx. A Ex. 5). 179 Shell Oil Sample Sheet (Appx. C Ex. 26). 180 Still Rebuttal Report, pp. 6-7 (Appx. B Ex.11).


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correct counts. We do know that Longo and his employees took liberties with basic rounding

rules when transcribing the data into the summary of results. We know that the MAS

experiments cannot be duplicated because samples were collected and analyzed only “in general

accordance with” NIOSH 7400 and 7402; not even MAS can get similar results from what are

essentially the same “work practices.” And we know that Longo is untruthful in other areas of

his consulting work. The data that are capable of being verified contain so many falsities;

clearly, we cannot rely on the mere ipse dixit of the Committee’s experts to on the data that is not

capable of being verified.

The Committee cannot meet its burden to overcome the inherent inadmissibility of these

experts’ opinions, which are based in large part on experiments born entirely within the context

of litigation, solely to provide the shaky foundation upon which plaintiffs’ attorneys could

construct a case against Garlock and other manufacturers of non-friable products of gaskets and

packing. This Court should exclude or strike the opinions of Longo and Templin.


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This 3rd day of July, 2013. Respectfully submitted, /s/ Raymond P. Harris, Jr. Raymond P. Harris, Jr. Cary Schachter SCHACHTER HARRIS, LLP 400 E. Las Colinas Blvd., Suite 220 Irving, Texas 75039 Telephone: (214) 999-5700 Facsimile: (214) 999-5747 [email protected] [email protected] Special Litigation Counsel to the Debtors Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company Garland S. Cassada N.C. Bar No. 12352 Jonathan C. Krisko N.C. Bar No. 28625 Richard C. Worf, Jr. N.C. Bar No. 37143

ROBINSON BRADSHAW & HINSON, P.A. 101 North Tryon Street, Suite 1900 Charlotte, North Carolina 28246 Telephone: (704) 377-2536 Facsimile: (704) 378-4000 [email protected] [email protected] [email protected] Special Corporate and Litigation Counsel to the Debtors Garlock Sealing Technologies LLC, Garrison Litigation Management Group, Ltd., and The Anchor Packing Company


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