Dixon v. Ford Motor Co.

BERNARD DIXON, etc., et al.

v.FORD MOTOR COMPANY

No. 82

COURT OF APPEALS OF MARYLAND

September Term, 2012

Filed: July 25, 2013

HEADNOTE

Dixon v. Ford Motor Company

No. 82, September Term 2012, Opinion by Wilner. J. (Retired, Specially Assigned)

IN WRONGFUL DEATH ACTION WHERE WIFE/MOTHER DIED OF MESOTHELIOMA ALLEGEDLY CAUSED BY EXPOSURE TO ASBESTOS-LADEN DUST BROUGHT HOME BY HUSBAND FROM WORKING ON FORD BRAKE PRODUCTS AND/OR BY ASBESTOS-LADEN DUST FROM JOINT COMPOUND USED BY WIFE AND HUSBAND IN HOME IMPROVEMENT PROJECTS:

(1) TRIAL COURT DID NOT ERR IN ALLOWING EXPERT TESTIMONY, BASED IN PART ON EVIDENCE OF MULTIPLE AND CUMULATIVE EXPOSURES BY WIFE, OVER 13-YEAR PERIOD, TO ASBESTOS FIBERS FROM THE FORD BRAKE PRODUCTS, THAT ANY OF THOSE EXPOSURES CONSTITUTED A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE MESOTHELIOMA;

(2) TRIAL COURT ERRED IN OVERTURNING JURY VERDICT THAT JOINT COMPOUND USED IN HOME IMPROVEMENT PROJECT WAS NOT A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE MESOTHELIOMA;

(3) CAP ON NON-ECONOMIC DAMAGES IN WRONGFUL DEATH ACTION INVOLVING TWO OR MORE CLAIMANTS OF 150% OF CAP ON INDIVIDUAL AWARD OF NON-ECONOMIC DAMAGES DOES NOT VIOLATE EQUAL PROTECTION, DUE PROCESS, RIGHT TO JURY TRIAL, OR ART. 19 OF MD. DECL. OF RIGHTS;

(4) TRIAL COURT DID NOT ERR IN DENYING MOTION FOR NEW TRIAL.

*Bell, C.J.,

Harrell

Battaglia

Greene

Barbera

McDonald

Wilner, Alan M. (Retired, specially assigned)

JJ.

Opinion by Wilner, J.

Bell, C.J. and Battaglia, J., dissent.

*Bell, C.J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion.

Joan Dixon contracted mesothelioma, from which she eventually died. That the mesothelioma was caused by her exposure to asbestos is not in dispute. The principal issue here is, whose asbestos?¹ As germane to what is now before us, there were two possible culprits - asbestos-laden dust emanating from brakes manufactured by Ford Motor Company that Ms. Dixon's husband, Bernard, who handled those products occupationally, brought home on his clothes, and asbestos possibly contained in a compound manufactured by Georgia-Pacific Corp. that the Dixons used in building their home, in some home improvement projects, and in building an adjacent structure.²

The Dixons filed suit against Ford and Georgia-Pacific in the Circuit Court for Baltimore City, claiming negligence on their part in failing to warn Ms. Dixon of the danger lurking in their products. Upon his wife's death in 2009, Mr. Dixon continued theaction as personal representative of her Estate and, along with the couple's four daughters, pursued a wrongful death action as well.

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. On that finding, it returned substantial verdicts in favor of Mr. Dixon and his daughters against Ford and denied a cross-claim by Ford against Georgia-Pacific. The court subsequently modified those verdicts in two respects. Applying one aspect of the statutory cap on awards of non-economic damages (Maryland Code, § 11-108(b)(3)(ii) of the Cts. & Jud. Proc. Article), the court reduced the amount of the verdicts,³ and, acting under Md. Rule 2-535, the court expressed its disagreement with the jury's conclusion that the Georgia-Pacific compound was not also a substantial contributing factor and entered judgment for Ford on its cross-claim against Georgia-Pacific. All other post-trial motions, including Ford's motion to enter judgment on its cross-claim against Honeywell International, Inc., were denied.

Both the plaintiffs and Ford filed appeals to the Court of Special Appeals. Several issues were raised, but only one was addressed - the opinion evidence by the plaintiffs'principal expert, Dr. Laura Welch, that every exposure to asbestos, including the short-fiber chrysotile asbestos contained in the Ford brake products, increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing cause of that disease. Based on what the intermediate appellate court believed was a "settled scientific theory of causation" known by "philosophers of science" as "probabilistic causation," the court held that Dr. Welch's opinion was not helpful to the jury and that the trial court abused its discretion in allowing it into evidence. The court reversed the judgments entered in favor of the plaintiffs and remanded the case for a new trial and, as a result, did not consider the cross-claim against Georgia-Pacific or any of the other issues raised by the parties. We granted the plaintiffs' petition for certiorari and a conditional cross-petition by Ford to consider the validity of the Court of Special Appeals decision and the issues raised in but not decided by that Court.⁴

FACTUAL BACKGROUND - SOURCES OF EXPOSURE

The Dixons were married in 1959 and lived thereafter as a couple in Garrett County. From 1958 until 1976, Mr. Dixon worked as a poultry inspector for the U. S. Department of Agriculture, mostly at a plant in Oakland. Upon his retirement from that position, he purchased and operated an ice cream stand near Deep Creek Lake. Over a 13-year period, from the early 1960s until 1976, he worked at least two evenings a week, ten months a year, at a garage owned by a friend, Skip Bernard. In that job, he performed brake maintenance, repair, and replacement work - on average two brake jobs per week. About 95% of the brake work Mr. Dixon did involved Ford brakes, which meant that, over the 13-year period, he performed about 1,000 Ford brake jobs. All Ford brakes and braking systems during that period contained chrysotile asbestos.

In performing his brake maintenance and repairs, Mr. Dixon used compressed air and a wire brush to clean the drums and remove debris, and sand paper to remove glaze on the brake linings. If new brakes were required, he would file the edges of the new brake shoes before installing them. All of this generated asbestos-laden dust that clung to his skin, hair, and clothes. When he returned home, in that condition, he threw his clothes in the basement for his wife to wash. Mr. Dixon testified that she would shake out theclothes and launder them. There was other testimony that, as early as 1971, one or more of the daughters also did or helped with the laundry. Evidence was presented that, for nearly 40 years, Ford warned its dealers and employees of the dangers of working with asbestos in Ford brakes but issued no warnings to anyone else.

With respect to the construction and home improvement work, Mr. Dixon said that he used drywall in the building of his house in the early 1960s, but he used a powder mixed with water to fill in the joints and did not know the brand or manufacturer of the powder. There was no evidence as to whether it was an asbestos-laden Georgia-Pacific product. In the 1970s, the Dixons built an addition to the house and a separate building on their property enclosing four apartments and space for a meat processing business. Mr. Dixon testified that he recalled using a premixed Georgia-Pacific joint compound for both the drywall seams and a textured ceiling. His wife did the sanding and the cleanup. Evidence was presented by Georgia-Pacific that from 1963 to 1974, its Ready-Mix joint compound contained 3% to 8% asbestos, that it introduced an asbestos-free compound in 1974, but that it continued to sell the asbestos compound until 1977. There was no direct evidence at trial whether the product used by the Dixons contained asbestos.⁵

DR. WELCH'S TESTIMONY - RESTATED QUESTIONS (1) AND (2)

Prior to trial, Ford filed a motion in limine to exclude the plaintiffs' proposed causation testimony and to conduct a Frye/Reed (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Reed v. State, 283 Md. 374, 391 A.2d 364 (1978)) hearing regarding testimony expected from the plaintiffs' experts. The motion was based on the assertion that there was no reliable epidemiological evidence that exposure to automotive friction products, such as brakes, causes mesothelioma and that, indeed, the evidence was that such exposure does not cause mesothelioma. The motion also asserted that brake dust is not asbestos because the heat generated during the braking process transforms the asbestos in the brake lining to non-fibrous forsterite.

After the filing of Ford's motion, Dr. Welch's deposition was taken, with respect to both this and other cases in which she was expected to testify. The essence of her deposition testimony, which presaged her testimony at trial, was her opinion that, if someone has mesothelioma, it is asbestos-related and that each and every exposure that makes up the sum total is a substantial contributing factor to the disease. That, plus the fact that she no longer did clinical work and had not actually examined Ms. Dixon, produced a supplemental memorandum from Ford claiming that Dr. Welch was not qualified as an expert to give an opinion regarding causation of mesothelioma in the wivesof brake mechanics.⁶ Ultimately, the court, concluding that it was bound by appellate decisions on the subject (though indicating some disagreement with those decisions), denied the motion, qualified Dr. Welch as an expert, and permitted her to testify.

The examination of Dr. Welch at trial was more precise than the somewhat rambling deposition examination. Importantly, for purposes of this appeal, Ford does not challenge the trial court's exercise of its discretion to qualify her as an expert. See Ford's principal brief at 11, n.6. Given Dr. Welch's curriculum vitae in the record, that is a reasonable concession. The present challenge is to the admissibility of her opinion that each exposure to asbestos, including asbestos-laden dust derived from asbestos contained in brake linings, may be a contributing cause to mesothelioma, which Ford maintains is not...