Dixon v. Ford Motor Co.

• Decision Date: 29 June 2012
• Docket Number: No. 536,Sept. Term, 2011.,536
• Citation: 47 A.3d 1038,206 Md.App. 180
• Parties: Bernard DIXON, etc., et al. v. FORD MOTOR COMPANY.
• Court: Court of Special Appeals of Maryland

206 Md.App. 180

47 A.3d 1038

Bernard DIXON, etc., et al.

v.FORD MOTOR COMPANY.

No. 536, Sept. Term, 2011.

Court of Special Appeals of Maryland.

June 29, 2012.

Jonathan Ruckdeschel (Dawn P. O'Croinin, Z. Stephen Horvat, Ruckdeschel Law Firm, LLC, on the brief) Ellicott City, MD, for appellant.

Michelle R. Mitchell & Robert D. Klein (Wharton, Levin, Ehrmantraut & Klein, PA, on the brief) Annapolis, MD, for appellee.

Panel: MATRICCIANI, BERGER and JAMES R. EYLER (Retired, Specially Assigned), JJ.

MATRICCIANI, J.

On July 1, 2008, Joan Dixon and her husband, Bernard Dixon, brought suit in the Circuit Court for Baltimore City against corporations involved in the manufacturing and distribution of products containing asbestos, including Ford Motor Company, the Georgia–Pacific Corporation (“GP”), Honeywell International, Inc., and the Union Carbide Corporation (“UCC”). Following Mrs. Dixon's death from pleural mesothelioma, Mr. Dixon pursued her claims as representative of her estate, and the Dixons' four adult daughters joined their father as plaintiffs, who are now appellants.

Prior to trial, appellants settled with GP, Honeywell, and UCC, but Ford's cross-claims against those defendants remained for adjudication as potential joint tortfeasors.

Ford moved in limine for a hearing to challenge appellants' proffered expert on the issue of causation, as well as to exclude the expert's testimony. Trial commenced on April 15, 2010, and the court denied Ford's motions, along with certain objections Ford raised during the expert's testimony.

On April 27, 2010, the jury returned a verdict awarding appellants a total of $15,000,000 in compensatory damages, which the court reduced to $6,065,000 in accordance with the non-economic damages cap of Maryland Code (2006), § 11–108 of the Courts and Judicial Proceedings Article (“CJ”). Ford subsequently filed post-trial motions requesting a new trial and revisions or judgments notwithstanding the verdict (“JNOV”) on both its own cross-claims and appellants' direct claims. The court denied Ford's motions for new trial and JNOV, but ruled that the jury's verdict was inconsistent and revised the judgments against Ford and GP to adjust for the latter's contribution as a joint tortfeasor. The court entered its revised judgment in favor of appellants in the collective amount of $3,032,500.00, from which both appellants and Ford filed timely appeals.

Questions Presented

The parties' briefs present a total of eight questions between them,¹ but our opinion need only address the first of Ford's questions presented:

I. Did the trial court err when it denied Ford's motion to exclude appellants' expert epidemiological opinion on “substantial contributing factor causation” where the expert's testimony did not quantify the probability of causation?

For the reasons that follow, we answer yes and remand the case for a new trial consistent with this opinion.

Factual and Procedural History

Joan Dixon died of pleural mesothelioma on February 28, 2009, having initiated a suit against Ford and various other entities involved in the asbestos market, including GP, Honeywell, and UCC. The complaint alleged that Mr. and Mrs. Dixon “participated in home improvement and maintenance projects throughout the 1960s and 1970s during with [sic] they worked with and around Defendants' asbestos products,” and that “[t]hroughout the 1950s, 1960s and 1970s, Mrs. Dixon was exposed to asbestos dust created by Mr. Dixon's work with and around asbestos-containing automobiles and asbestos-containing replacement parts for those automobiles including ... brakes[.]” Appellants further alleged that Mrs. Dixon's “exposure to Defendants' asbestos containing products and asbestos containing vehicles and the inhalation of asbestos fibers from the products and vehicles caused her disease and eventual death.”

In response to interrogatories, appellants stated that they “believe Joan Dixon may have been exposed to asbestos through her and her husbands' use of and exposure to various building materials, including but not limited to Georgia Pacific pre-mixed drywall joint compound which, upon information and belief, contained Union Carbide Corporation's Calidria brand asbestos.” Deposition testimony established that Mrs. Dixon personally sanded joint compound and cleaned up after at least five home construction and renovation projects.²

Appellants settled with GP, Honeywell, and UCC prior to trial. Their settlement agreements did not determine whether the defendants were joint tortfeasors, and so they remained in the case nominally as Ford's cross-defendants, unrepresented by counsel.

Appellants sought to introduce Dr. Laura Welch as an expert in asbestos epidemiology and proffered her opinion on causation. Ford did not dispute that Dr. Welch was qualified to render expert testimony on the subject of epidemiology, but instead objected to the methods and substance of her causation opinion. The court denied Ford's motion,³ and Dr. Welch testified on direct “that mesothelioma in particular is a dose-response disease. Every increasing [asbestos] dose increases the likelihood of getting it, [and] additional doses decrease the time it takes to get the disease as exposure goes up.” When asked to assume that Mrs. Dixon was exposed to asbestos in various other ways, Dr. Welch stated that in her opinion, “ every exposure to asbestos is a substantial contributing cause and so brake exposure would be a substantial cause even if [Mrs. Dixon] had other exposures.” On cross-examination, Dr. Welch further explained her opinion that every exposure to asbestos is a “substantial contributing cause” of mesothelioma:

Q. Now, with regard to your opinions about asbestos and causation which you have given this jury, it's your opinion, Doctor, that each and every exposure contributes to the development of mesothelioma no matter where it comes from in asbestos exposure; is that right?

A. Right. When somebody has got mesothelioma, all the exposures they have were contributing factors, that's my opinion.

Q. And it doesn't matter to you whether the exposure is on a frequent basis, correct?

A. No. I mean, an exposure can be like one event. On a frequent basis, you would be talking about a task or something like that. But I think each one of those discrete exposures is a contributing factor.

Q. So it can be one event in order to be, in your view, a substantial contributing cause to the development of mesothelioma?

A. Correct. It could be one day of work, for example, or something like that.

Q. So it doesn't have to be a regular course of work? It doesn't have to be something they do occupationally for a period of time; is that true?

A. No, not necessarily. Because we are talking about somebody who has already got the disease. And I think everyone of the exposures that go into making their sum total of exposure to asbestos is a contributing factor.

Against this general causal backdrop, Dr. Welch explained the basis of her opinion that Mrs. Dixon's exposure to automobile brake dust was a substantial contributing factor of Mrs. Dixon's disease:

The easiest way to do that is to turn back to my paper we kept discussing, the Amicus brief that walks through the information that supports a conclusion that brake mechanics are at an increased risk for mesothelioma. So we have a lot of data that the kind of asbestos that's in brakes, chrysotile, causes mesothelioma. We have a lot of information that brief or low-level exposure to asbestos causes mesothelioma. And I think [plaintiffs' counsel] had a number of those papers up there on the slides we put together.

And one other part of it is that, as you and I just talked about, asbestos is, in my opinion, the only recognized cause of mesothelioma.

And we know that brake mechanics have exposure to asbestos as has been demonstrated in industrial hygiene studies. There [are] lots of studies that show that exposure occurs. It occurs to [sic] substances known to cause mesothelioma, that people working with friction products get enough asbestos exposure to cause other nonmalignant diseases. And to me, all those studies allow me to say exposure to asbestos by working with brakes can be a substantial contributing cause of mesothelioma.

Dr. Welch admitted that no epidemiological studies had specifically investigated the risk of mesothelioma among wives of brake mechanics. However, Dr. Welch explained that such a study would be practically impossible; if the rate of disease in a group of workers was two-and-a-half cases per hundred thousand—as in the case of mesothelioma—such a study would require thirty-thousand subjects and twenty years to reach a statistically significant conclusion. Instead, Dr. Welch testified that she formed her opinion from the generally accepted fact that asbestos dust left on a worker's clothing can be transmitted to family members in the home environment.

In its defense, Ford called epidemiologist and risk assessment expert Herman J. Gibb, Ph.D., who testified that none of eighteen epidemiological studies in evidence showed “any evidence that vehicle mechanics have an increased risk of mesothelioma.” By contrast, Dr. Gibb testified that epidemiological studies showed that the risk of mesothelioma among construction workers exposed to asbestos dust is up to seven times greater than the risk of mesothelioma among the general population. Dr. Gibb admitted on cross-examination that only three of the studies that Ford relied upon categorically examined “brake mechanics,” as opposed to “auto workers” or generic “mechanics.” ⁴

After the close of evidence, the jury deliberated and returned a verdict against Ford, awarding $5,000,000 to Mrs. Dixon's estate, $4,000,000 to Bernard Dixon, and $1,500,000 to each of the Dixons' four daughters, for a total of $15,000,000. After applying the non-economic damages cap of CJ § 11–108, the court entered judgment awarding $5,000,000 to Mrs. Dixon's estate, $426,000 to ...