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 mesothelioma...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.” 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

RSRM Announces Two New Partners

            RSRM is pleased to announce that Andrew T. Nichols and Thomas E. Neary became Partners of the firm, effective July 1, 2012.

            Mr. Nichols joined RSRM as an Associate in 2006. Prior to joining the firm, Mr. Nichols worked as an associate with Samek, McMillan, & Metro, P.C. (now McMillan Metro, P.C.), in Rockville, Maryland, where he was an associate in the firm's commercial litigation department. Mr. Nichols also worked in-house as staff counsel for Liberty Mutual Insurance Company, where his practice consisted of litigating general negligence cases and workers' compensation matters. Immediately upon graduating law school, Mr. Nichols clerked for the Honorable William O. Carr, Circuit Court for Harford County.

            Mr. Neary joined RSRM as an Associate in 2009. Prior to joining the firm, Mr. Neary was a trial attorney for the Travelers Insurance Company litigating personal and commercial civil actions throughout Maryland. In this capacity, Mr. Neary defended the rights of corporate and individual clients in a wide variety of complex legal matters. Mr. Neary also has significant experience representing hospitals and health care providers in medical malpractice claims and other related proceedings.

Maryland Legislature Fixes Flaw in Underinsured Motorist Claims with House Bill 715, Governor Signs Into Law

          On May 2, 2012, Governor Martin O’Malley approved legislation that appears to change the landscape of how insurance companies can deal with offers of settlement by an underlying tortfeasor when they are faced with an underinsured motorist claim.  House Bill 715 effectively repeals and reenacts § 19-511 of the Insurance Article of the Maryland Code to add provisions that allow the underinsured motorist (“UIM”) carrier to continue to defend liability in that matter even if they consent to the plaintiff accepting the underlying tortfeasor’s insurance policy limits.   In doing so, the legislature appears to restore common sense to the law, returning it to what it was before Maurer v. Penn National, 404 Md. 60 (2007).

            In 2007, the Court of Appeals changed the way insurance companies were required to handle claims made for underinsured motorist benefits with its decision in Maurer.  Prior to this decision, upon presentation of an offer of settlement from the underlying tortfeasor’s carrier that exhausted the underlying policy limits, the UIM insurance carrier was free to consent to the underlying settlement and allow the plaintiff to be paid the proceeds of that policy, while still retaining its right to defend all aspects of the case, including liability, up to and through trial.  With the surprising Maurer decision, however, that process was changed substantially. In that decision, the Court of Appeals held that consenting to the acceptance of payment by the underlying carrier and releasing the underlying tortfeasor from that action acted as a waiver of defenses to liability in that case by the UIM carrier.  In other words, after Maurer, by consenting to the underlying settlement, the insurance company defendant effectively waived its liability defenses and admitted liability. 

            The Maurer decision had an immediate and substantial effect on pending cases from a defense perspective.  Certainly, the realization that Maryland’s highest court deemed liability admitted in a pending case was not a comfortable position to be in, and the long-term effects of the decision were not surprising.  The process of evaluating cases in which to accept the underlying tender was altered to accommodate the liability issue, and insurance companies simply refused to consent to the settlements where they would have before, as is their right under the statute.  Practically speaking, this meant that more parties were going to trial, which meant more attorneys were going to trial, which resulted in longer trials and less efficiency in an already overburdened court system.

            House Bill 715 deals directly with the waiver issue in its altering of the Insurance Article.  Specifically, it adds the following subsections to § 19-511, the section that deals with the procedure when dealing with an underlying tortfeasor’s policy limits offer:

(F) Written consent by an Uninsured Motorist Insurer to acceptance of a Settlement Offer under Subsection (B)(1) of this section:

(1)   May not be construed to limit the right of the Uninsured Motorist Insurer to raise any issue relating to Liability or Damages in an action against the Uninsured Motorist Insurer; and

(2)   Does not Constitute an admission by the Uninsured Motorist Insurer as to any issue raised in an action against the Uninsured Motorist Insurer.

            This piece of legislation directly responds to the changes made in the law in 2007 and returns the right to defend all issues in the case to the uninsured motorist carrier.  Thus, as of the effective date of the law, which takes effect on October 1, 2012, the waiver of liability will no longer be an issue when evaluating whether to accept a settlement between the plaintiff and an underlying tortfeasor.  While the UIM carrier certainly benefits from this amendment to the existing law and regains its right to defend liability in a given case, it is also likely that the plaintiff and tortfeasor also profit from this change, both of whom benefit from the incentive added to consent to settlements.  Certainly, with fewer claims and, consequently, fewer attorneys going to trial, the over-burdened court system gains from what can only be a decrease in the amount of administrative costs and trial time that was required after the Maurer decision.

            It should be noted that the rights relating to subrogation by the UIM carrier against the underinsured tortfeasor, and the waiver of those rights upon acceptance of settlement and release of the tortfeasor, do not appear to be changed as a result of House Bill 715.


Article Contributed by Thomas Neary