Expert’s ‘Each Exposure’ Testimony Not Novel, Maryland Top Court Says

Expert’s ‘Each Exposure’ Testimony Not Novel, Maryland Top Court Says

BALTIMORE — (Mealey’s) Expert testimony that each exposure to chrysotile asbestos increased a woman’s risk of mesothelioma is not a novel scientific theory given the levels of exposure at issue, Maryland’s top court held July 25 (Bernard Dixon, et al. v. Ford Motor Co., No. 82 September Term 2012, Md. App.). 

(Opinion available.  Document #01-130814-014Z.

In its ruling, the Maryland Court of Appeals held that the 20-year-old Eagle-Picher v. Balbos (326 Md. 179, 194, n.7, 604 A.2d 445, 452, n.7 [1992]) established that mesothelioma can arise from chrysotile asbestos exposure.  Under this framework, Dr. Laura Welch’s opinion that the chrysotile in Ford brakes led to mesothelioma “is not a novel scientific principle,” the court said. 

The ruling comes in a case brought by Bernard Dixon and his daughters, Debbie Crabtree, Barbara Wierzbicki, Lisa Sisler and Patricia Shreve (Dixon family), in the Baltimore City Circuit Court.  The Dixon family originally named numerous defendants whose conduct allegedly exposed Joan Dixon to asbestos, causing her fatal malignant mesothelioma. 

Verdict 

The Dixon family alleged that the decedent was exposed to asbestos on the clothing of Bernard Dixon when he performed work on brakes and braking systems on family vehicles during the early 1960s through the late 1970s. 

At trial, only the claims against Ford Motor Co. remained.  Welch testified for the plaintiffs that every exposure to asbestos raises the risk of contracting a disease.  Ford rebutted with testimony from Herman J. Gibb, who testified that no epidemiological studies showed that mechanics suffer from an increased risk of mesothelioma. 

A jury returned an award of $15 million, consisting of $5 million to the estate of Joan Dixon, $4 million to Bernard Dixon and $1.5 million to each daughter.  The jury rejected claims against all cross-defendants, including Georgia-Pacific LLC. 

Judge John Glynn revised the verdict, finding that a jury could not logically have relied on “every exposure” testimony to find a defendant liable while finding in favor of cross-defendants whom the evidence linked to the decedent.  Both parties appealed and raised a number of issues. 

Reversed And Remanded 

In reversing and remanding for a new trial on a single issue, the Maryland Court of Special Appeals held that although evidence of exposure to specific amounts of asbestos was clearly impossible, experts should be able to testify regarding ranges of exposure and their approximate hazards.  The Dixon family appealed, and Ford cross-appealed, both of which were accepted. 

The Maryland Court of Appeals reinstated the jury’s original verdict.  The court said evidence shows that Bernard Dixon worked with Ford brakes twice per week, 10 months per year for 13 years and that the decedent handled his dusty clothing.  This translates into 1,000 days of exposure, which satisfies the frequency, regularity and proximity test, the court said. 

“Dr. Welch’s ultimate opinion was based on that evidence” as well as evidence that once in the home, the asbestos fibers remained there, creating continuous and cumulative exposures, the court said.  “With that background and context, we are unwilling to conclude that Dr. Welch’s opinion that each exposure increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing factor involved a novel scientific theory not generally accepted in the scientific community,” the court said. 

The court rejected the idea that asbestos plaintiffs must present testimony regarding the amount of fibers released by a particular product. 

Cross-Claims 

Addressing the cross-claims against Georgia-Pacific and Honeywell International Inc., the court said the trial court erred in setting aside the jury’s verdict on the cross-claims against Georgia-Pacific.  There is no direct evidence of exposure, and the evidence allows for, at best, the inference that the decedent suffered exposure to asbestos in a Georgia-Pacific product, the court said. 

“There was no triumph of technicality over justice.  The verdict was not against the weight of the evidence but simply reflected the jury’s belief that evidence of Ms. Dixon’s exposure to asbestos from a Georgia-Pacific product was insufficient to show by a preponderance that such exposure was a substantial contributing factor in causing her mesothelioma,” the court said. 

Addressing the Dixon family’s challenge to Maryland’s lump-sum noneconomic damages cap without regard to number of claimants, the court said “our belief that the 150% cap is not unconstitutional will not change.” 

“The 150% cap does not intrude on the jury’s right to determine the relative degree of harm suffered by the individual claimants; nor does it create irrational classifications among the claimants,” the court said.  Instead, the cap limits the amount of noneconomic damages that may be awarded for a single person’s death, the court said. 

Retired Judge Alan M. Wilner, specially assigned, wrote the opinion for the court, joined by Judges Glenn T. Harrell Jr., Clayton Green Jr., Mary Ellen Barbara and Robert N. McDonald.

 Judge Lynne A. Battaglia, joined by Judge Robert M. Bell, dissented.  He said he would affirm “the excellent analysis and decision of the Court of Special Appeals.” 

Jonathan Ruckdeschel and Dawn O’Croinin of the Ruckdeschel Law Firm in Baltimore represent the plaintiffs.  Robert Dale Klein and Michelle R. Mitchell of Wharton Levin Ehrmantraut & Klein in Annapolis, Md., and J. Tracy Walker of McGuireWoods in Richmond, Va., represent Ford.

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