Monday, July 23, 2012

Dixon v. Ford Motor Company: More than the “Magic Words” Are Needed to Prove Causation in an Asbestos Case

            Recently, the Maryland Court of Special Appeals issued a written opinion in the case of Dixon v. Ford Motor Co., No. 536, 2012 WL 2483315 (Md. Ct. Spec. App. June, 29, 2012). In that case, Joan and Bernard Dixon filed suit in the Circuit Court for Baltimore City against several corporations that manufactured and distributed products containing asbestos, including Ford Motor Company (“Ford”), Georgia-Pacific Corporation (“Georgia-Pacific”), Honeywell International Inc. (“Honeywell”) and Union Carbide Corporation (“Union Carbide”). This suit originated prior to Mrs. Dixon’s death from pleural mesothelioma. After her death, Mr. Dixon amended the complaint to accommodate the needed estate claims, including the claims of the Dixons’ four daughters.

            The suit alleged, in part, that Mr. and Mrs. Dixon “participated in home improvement and maintenance projects” spanning from 1960 to 1970, in which “they worked with and around the [d]efendants’ asbestos products.” The complaint further alleged that Mrs. Dixon was also exposed to the asbestos dust from Mr. Dixon’s work clothing, created by his “work with and around asbestos-containing automobiles and asbestos-containing replacement parts for those automobiles including...brakes[.]” The Dixons contended that Mrs. Dixon’s exposure to the asbestos-tainted products and vehicles caused her disease and eventual death.

            Prior to trial, the Dixons settled with Georgia-Pacific, Honeywell and Union Carbide, but Ford’s cross-claim against those defendants remained unsettled for adjudication. After trial, the jury returned a verdict in favor of the Dixons, awarding them a total of $15,000,000 in compensatory damages. To comply with the non-economic damages cap of Section 11-108 of the Courts & Judicial Proceedings Article of the Maryland Code, the court later reduced the award to $6,065,000.

            Prior to the commencement of trial, Ford had moved in limine for a hearing to challenge the Dixons’ proffered expert, Dr. Laura Welch, an expert in epidemiology, on the issue of causation, and to exclude her testimony. During trial, the court overruled Ford’s motion and related objections, and allowed the Plaintiffs’ expert to testify. Dr. Welch testified on direct “that 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.” On cross-examination, Dr. Welch further explained that 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.” Dr. Welch concluded that Mrs. Dixon’s exposure to the dust created by Ford’s brakes was a substantial contributing cause to Mrs. Dixon’s disease, even if there were other contributing causes.

            Ford filed post-trial motions for a new trial and to revise the judgment, and also moved for a judgment notwithstanding the verdict (“JNOV”) on the cross-claims and the Dixons’ direct claims. Ford’s motions for a new trial and JNOV were denied, but the trial court granted Ford’s motion to revise the judgment, and revised the judgments against Ford and Georgia Pacific to adjust for Georgia-Pacific’s contributions as a joint tortfeasor. The revised judgment for the Dixons amounted to $3,032,500. Both the Dixons and Ford appealed.

            On appeal, the Court of Special Appeals vacated the judgments in favor of the Dixons and remanded the case for a new trial. The Court held that, under Maryland Rule 5-704, the trial court abused its discretion when it admitted Dr. Welch’s testimony regarding causation. Specifically, the Court held that “where the question of causation is probabilistic, ‘substantiality’ and ‘responsibility’ necessarily implies some test of magnitude.” The Court further held that, “if risk is [the] measure of causation, and substantiality a threshold for risk...[then] ‘substantiality’ is essential to the burden of proof.” The Court found that Dr. Welch’s testimony stating that the exposure and risk were “substantial” was not a scientific conclusion, but a legal one, which “did not provide information for the jury to use in reaching its conclusion as to substantial factor causation.”

            Ultimately, the Court of Special Appeals found that in order for the facts of the case to be proven with the reasonable certainty required under Maryland law, an expert must estimate exposure and risk within a reasonable scientific or medical certainty, and not merely use the “magic words” of “substantial contributing case,” the standard for experts in Maryland for proving causation. That mesothelioma has but one cause, asbestos, is up to this point accepted across the board. The Dixon opinion merely points out that in cases where multiple causal factors are in play, the Plaintiff must prove each and every substantial contributing cause with the required reasonable degree of medical or scientific certainty.

Article Contributed by James Buck

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