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Maryland High Court Allows “Every Exposure” Testimony in Asbestos Case

Overturning what some commentators had considered a leading opinion rejecting the so-called “any exposure” theory, Maryland’s highest court ruled that an expert may testify that “every exposure to asbestos is a substantial contributing cause” of mesothelioma. Dixon v. Ford Motor Co., 433 Md. 137 (2013), www.bdlaw.com/assets/attachments/dixonvford.pdf.

The husband and children of a woman who died of mesothelioma filed suit against Ford Motor Company for negligent failure to warn of the dangerous asbestos in their products. Dixon, slip opat 1. Joan Dixon claimed she was exposed to asbestos from two sources: (1) her husband, a mechanic who worked almost exclusively on Ford brakes, brought asbestos-laden dust home with him on his clothes, which she laundered; and (2) a drywall joint compound allegedly manufactured by Georgia-Pacific that her husband used in a repair project at their home. Id. at 4-5. After a 12-day trial, the jury concluded that the only substantial contributing factor in causing Ms. Dixon’s mesothelioma was the dust from the Ford brake products and returned sizeable verdicts in the Plaintiffs' favor. Id. at 2.

At trial, the jury heard Dr. Lauren Welch’s expert testimony that even though Ms. Dixon may have been exposed to asbestos from a drywall joint compound during a home repair project, the Ford brake dust was still a cause of her disease because “every exposure to asbestos is a substantial contributing cause” of mesothelioma. Id. at 10. On appeal, the intermediate court threw out this “every exposure” opinion testimony, finding that Dr. Welch should have relied on a theory of “probabilistic causation” instead, and that the opinion was not helpful to the jury. Id. at 3. For more information on the intermediate court’s decision, seehttp://www.environmentallawportal.com/Maryland-Court-Rejects-Any-Exposure-Theory.

The Maryland Court of Appeals reversed, finding that the intermediate court had improperly ignored the context within which Dr. Welch provided her testimony. Id. at 10. Dr. Welch provided her opinion based on the evidence that dust was brought into the Dixons’ home twice a week for 13 years, and that the repeated exposure was high-intensity because asbestos fibers would remain in the home for an extended period. Id. at 13-16. With that background and context, the court was unwilling to conclude that Dr. Welch’s opinion that each exposure increased the likelihood of contracting mesothelioma was a novel scientific theory. Id.

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About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm
Principal

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

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Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm
Associate

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.

212-702-5415