New Expert Opinion Maryland Court of Special Appeals Opinion

The Maryland Court of Special Appeals issued an opinion on Friday in Dixon v. Ford Motor Co., reversing a plaintiffs’ asbestos verdict.

Update on This Case: The Maryland high court reversed!

As is the case in asbestos cases involving a wrongful death and mesothelioma cancer, the verdict was large. The jury awarded $15 million in damages to the plaintiffs, which the court reduced to $6,065,000, pursuant to Maryland’s non-economic damages cap. Defendants filed post-trial motions requesting a new trial and revisions or judgments notwithstanding the verdict. The trial judge – retired Judge Carol E. Smith – shot down those claims, but ruled that the jury’s reversed asbestos verdictverdict was inconsistent and revised the judgments against two of the defendants to account for a joint tortfeasor release to a little over $3 million. Both the plaintiff and one of the defendants – Ford, a company I otherwise like except that it always seems to stick their chest out in litigation, at least in Maryland – appealed.

Raise your hand if you got a little lost there. Me too. Basically what happened is the plaintiffs settled out with three defendants, but the settlement agreements did not determine whether the defendants were joint tortfeasors, and so they remained in the case nominally as Ford’s cross-defendants. So you have the surreal world of defendants at trial that are not represented by a lawyer. None of this really matters, ultimately, because the Court of Special Appeals reverses the verdict, making academic all the joint tortfeasor issues.

The key issue in the case – one that Maryland personal injury lawyers will find of importance in presenting expert testimony – is just how much harm has to be done to add up to a substantial contributing cause. Here, Plaintiff’s expert testified that “every exposure to asbestos is a substantial contributing cause and so brake exposure would be a substantial cause even if [plaintiff] had other exposures.”
The court says this is not far enough to establish a substantial contributing cause because this testimony implied that the exposure it increased the risk of mesothelioma was merely “more than nothing.” Accordingly, the court found that this testimony tells the jury nothing more than there is as little as an “infinitesimal change in risk.”

Metaphysically, I get the court’s point. Saying there was harm without saying what the harm is should not be the stuff that leads to a $3 million verdict. So just using the words “substantial contributing cause” should not get you to the promised land without greater elucidation of the increased risk of harm because it is a legal – no scientific – conclusion.

I don’t think this case represents an abandonment of the “substantial contributing cause” as the standard experts use for causation in car accident, medical malpractice and other personal injury cases in Maryland. An injury can still have several or more substantial contributing causes. But unless the Maryland Court of Appeals thinks differently, expert opinions of relative risk will have to do more than just say these magic words, particularly if the expert is an epidemiologist offering “risk to the plaintiff” opinions.

I understand the court’s opinion in this case. The problem I have with the opinion is that there is no study that will show that a break mechanic’s wife will have an increased risk of mesothelioma. But everyone agrees that asbestos dust on clothing can be transmitted to others in a family. This woman has meso cancer; there is no doubt she was injured by this insidious disease that has only one cause. So I think expert testimony ought to use this science and common sense. The court understands that there is an analytical gap between epidemiological data and the specifics of any individual case, and the difficulties of cutting the data that thin, but then dismisses it with a “Gee, we understand. But tough.” I think the better ruling would be “Look, the data is not clear but there is enough for a reasonable jury to connect the dots if they believe those dots should be connected given all of the evidence in the case.” The jury looked at this case and decided Ford should pay. Given the totality of the circumstances – a woman with mesothelioma cancer and her husband’s history of exposure from Ford – I think it would be fairer to let the jury make the call. The jury, in this case, was out for an hour and a half. Obviously, they felt pretty strongly that Ford was on the hook. Judge Roberts just told the world that judges should try to uphold a law if they reasonably can. I think courts should also try to uphold jury verdicts when they reasonably can, too.

You can find Judge Albert J. Matricciani’s opinion for the Maryland Court of Special Appeals opinion in Dixon v. Ford Motor Co. here.

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