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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.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 302

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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.

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