This time, Court of Appeals rules for asbestos victim

Maryland’s top court Thursday reinstated a $3 million award to the family of a Western Maryland woman who died of mesothelioma as the result of her husband’s exposure to asbestos in Ford Motor Co. brakes in the 1960s through the mid-1970s.

A lower court last year struck the jury’s verdict for the family of Joan Dixon and ordered a new trial, saying the testimony of the plaintiff’s expert witness should not have been admitted.

The Court of Appeals reversed, finding the lower court had taken the expert’s statement out of context.

The 5-2 decision comes less than three weeks after the top court held that an asbestos manufacturer could not be held liable to a family member for asbestos exposure that occurred in the 1960s.

A key difference between the two cases, which the court heard the same day, was that “no issue was raised in this appeal as to whether, prior to 1972, Ford was or should have been aware of the danger to household members from asbestos fibers brought into the home on the clothes of another household member …” Thursday’s opinion notes. “In any event, because that issue was not raised in this appeal, we have not addressed it.”

In reversing the jury’s verdict last year, the Court of Special Appeals had faulted a statement from the family’s epidemiology expert, who said that any exposure to asbestos was a “substantial contributing factor” in Dixon’s death.

The Court of Special Appeals said the expert’s opinion was not supported by science.

But the Court of Appeals said that one statement by the expert should not be viewed in a vacuum.

“As noted, the evidence in this case was that Mr. Dixon worked on Ford brakes, on average, twice a week, 10 months a year, for 13 years and that Ms. Dixon dealt with the dust-laden clothes and the ubiquitous asbestos fibers on most of those occasions,” retired Judge Alan M. Wilner wrote for the majority. “Even acknowledging that Mr. Dixon’s work was part-time evening work, that translates into his bringing home asbestos-laden dust from Ford brakes on more than 1,000 days.”

From the early 1960s to the late 1970s, Dixon’s husband, Bernard, worked a few nights a week at a garage, primarily on the brakes of Ford cars. The family said in the lawsuit that the asbestos dust he brought home on his clothes, skin and hair caused Joan Dixon’s disease.

She was diagnosed with malignant mesothelioma in March 2008 and died in February 2009.

At the May 2010 trial in Baltimore City Circuit Court, Laura Welch, an expert in asbestos epidemiology, testified that “brake exposure would be a substantial cause [of mesothelioma] even if [Joan Dixon] had other exposures.”

The jury awarded $15 million to Joan Dixon’s husband and four daughters. That amount was capped by law at about $6 million, then halved to account for money the family received in a settlement with several asbestos manufacturers.

The Court of Appeals, in restoring the jury verdict, said Welch’s opinion was based on Joan Dixon’s “continuous and cumulative” exposure to the asbestos her husband brought home and which remained in the house for a “considerable” time period.

“With that background and context, we are unwilling to conclude that Dr. Welch’s opinion that each exposure increased the likelihood of contracting mesothelioma and thus contained a substantial contributing factor involved a novel scientific theory not generally accepted in the scientific community,” wrote Wilner, who was specially assigned to hear the case. “Her opinion was not in the context of one or two incidental exposures to Ford brakes.”

The Dixon family’s attorney, Jonathan Ruckdeschel, praised the high court for restoring the appropriate standard for the admission of scientific evidence of causation in asbestos cases, which he said had been improperly narrowed by the Court of Special Appeals.

Welch’s testimony was “appropriate under Maryland law,” said Ruckdeschel, of The Ruckdeschel Law Firm LLC in Ellicott City. “Her opinions were well-grounded in the facts of this case.”

Dearborn, Mich.-based Ford Motor Co. issued a statement that it is “disappointed with the decision and is analyzing the opinion.”

Joining Wilner’s opinion were Chief Judge Mary Ellen Barbera and judges Glenn T. Harrell, Clayton Greene Jr. and Robert N. McDonald.

Judge Lynne A. Battaglia dissented, stating that she agreed with the Court of Special Appeals’ “excellent analysis and decision.” Retired Chief Judge Robert M. Bell joined Battaglia’s dissent.

WHAT THE COURT HELD

Case:

Bernard Dixon et al. v. Ford Motor Co., CA No. 82 Sept. Term 2012. Reported. Opinion by Wilner, J. (retired, specially assigned). Dissent by Battaglia, J. Argued May 7, 2013. Filed July 25, 2013.

Issue:

Did the trial court properly admit an epidemiologist’s testimony that asbestos exposure from the husband was a “substantial contributing factor” to the wife’s mesothelioma?

Holding:

Yes; admission of the tesimony was permissible in light of the evidence in the case.

Counsel:

Jonathan Ruckdeschel for petitioner; J. Tracy Walker IV for respondent.

RecordFax # 13-0725-21 (41 pages).