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Trial Court Properly Excluded Defense Expert Testimony on Cigarette Smoking as Contributing to Plaintiff’s Lung Cancer in Asbestos Case

Carter v. The Wallace & Gale Asbestos Settlement Trust
No. 84 (Maryland Court of Appeals, July 21, 2014)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Available at:

In Carter v. The Wallace & Gale Asbestos Settlement Trust (No. 84, Court of Appeals of Maryland, July 21, 2014), the primary issue was whether apportionment of damages was appropriate in the wrongful death and asbestos litigation context—specifically in a smoking lung cancer case. Maryland’s highest court reversed the judgment of the intermediate appellate court, and held that the intermediate appellate court erred in its decision that the defense should have been able to present expert testimony and jury instructions on apportionment of damages as between the Plaintiff’s history of cigarette smoking and exposure to asbestos. A secondary issue was whether certain “use plaintiffs,” who had not formally joined in the action, were precluded from recovering damages.

With respect to the apportionment of damages issue, Plaintiff’s decedent, Hewitt, was a long-time smoker, smoking half a pack to a full pack of cigarettes every day for sixty-five (65) years. Hewitt was also allegedly exposed to asbestos through his employment with Bethlehem Steel from 1946 to the late 1970s. He was diagnosed with lung cancer in October 2008, and died approximately two (2) months later, at the age of eighty-one (81). Mr. Hewitt did have an underlying diagnosis of asbestos. At trial, the only Defendant to try the case was the Wallace & Gale Asbestos Settlement Trust (“WGAST”), and no cigarette manufacturer defendant was sued by Plaintiff or WGAST. Plaintiff’s expert, Steven Zimmet, M.D., testified that asbestos exposure was a substantial contributing cause to Hewitt’s lung cancer, and smoking was also a cause of Hewitt’s lung cancer, but he could not differentiate “which caused what” because the two (2) exposures were not just additive, but they were synergistic, meaning that they multiply exposures. WGAST’s counsel requested that the circuit court permit apportionment of damages, based on the opinion of its expert, Gerald R. Kerby, M.D. Dr. Kerby was of the opinion that Hewitt’s smoking history contributed 75 percent to his death while his asbestos exposure contributed 25 percent to his death. The circuit court excluded Dr. Kerby’s testimony concerning apportionment of damages, however, Dr. Kerby was permitted to testify as to the statistical likelihoods of disease from certain sources. No question about apportionment between asbestos and smoking was included on the verdict sheet over defense objection. The jury returned a $2,686,686.07 Plaintiff’s verdict for the Hewitt case – the claims filed on behalf of the party Plaintiff and the Use Plaintiff. The verdict was reduced after application of the cap on non-economic damages, bankruptcy settlement payments, and joint tortfeasor credit for appellant’s cross-claims against another defendant (i.e., pro rata share allocation), with the total judgment being $1,325,495.95.

WGAST appealed to Maryland’s intermediate appellate court and argued that Dr. Kerby should have been allowed to testify as to the apportionment of damages between smoking and asbestos exposure. Plaintiff argued that Hewitt suffered one indivisible lung cancer injury, and that the circuit court properly rejected what was, in essence, a comparative fault argument that is impermissible in Maryland which is a contributory negligence state. The intermediate appellate court held that apportionment concerns causation, not comparative negligence, and held that the trial court erred by not admitting the defense expert’s testimony that cigarette smoking was a contributing cause of the plaintiff’s injury/death, and to further preclude testimony that the damages awarded should have been apportioned with 75 percent due to cigarette smoking and 25 percent to his asbestos exposure. The intermediate appellate court reversed the judgment against WGAST and remanded the case for a new trial.

Plaintiffs and the Use Plaintiffs appealed to Maryland’s highest court. The Court of Appeals of Maryland reversed the intermediate appellate court and held that the trial court had properly excluded the apportionment testimony by the defense expert. The intermediate appellate court improperly relied on persuasive authority from New Jersey to hold that apportionment between several causes of an injury was appropriate. To Maryland’s highest court, this was a mistake because the New Jersey precedent was grounded in comparative fault principles (whereas Maryland law is grounded in contributory negligence principles). In looking to Maryland case law and principles, Maryland’s highest court held that apportionment of damages was appropriate only when the injury is reasonably divisible and where there are two or more causes of the injury. Here, the injury was “death from lung cancer,” which, “as a matter of law,” was not a “reasonably divisible” injury. The Court further stated that while there are many variables that go into the causal effects of tobacco and asbestos exposure, there is evidence that the effect is multiplicative in nature, which is indicative of an indivisible injury. Furthermore, numerous legal authorities conclude that “death is an indivisible injury incapable of apportionment.”

Practically, to the Court, because there was no other tortfeasor joined in the case, the apportionment would have held the plaintiff accountable under comparative negligence principles—which is not the law of Maryland. Because Hewitt’s injury was indivisible as a matter of law and the Defendant was attempting to attribute a portion of the damages to the Plaintiff for his smoking history/tobacco exposure, the Court concluded that the trial court did not abuse his discretion by excluding Dr. Kerby’s testimony concerning apportionment of damages. The Court reversed the judgment of the Court of Special Appeals and remanded the case to that court with directions to affirm the judgment of the Circuit Court for Baltimore City.

With respect to the “Use Plaintiffs,” the issue was whether the Use Plaintiffs were precluded from recovering damages because they did not formally join in the action. The Court of Appeals held that under the state of the law at the time of trial in this case, which was prior to the Court’s decision in University of Maryland Medical Systems Corp. v. Muti, 426 Md. 358, 44 A.3d 380 (2012) and prior to the amendments to Maryland Rule 15-1001 (effective January 1, 2013), the designated Use Plaintiffs were considered real parties in interest who were not required to formally join in the proceeding in order to share in an award for damages. Absent any clear direction or requirement that formal joinder was necessary, a use plaintiff’s knowing consent to the litigation on his or her behalf and active participation in the litigation was the functional equivalent of joinder. Accordingly, the Use Plaintiffs were permitted to maintain a claim for damages even where there was no formal joinder.

A concurring and dissenting opinion was filed by Judge Raker, which Judge Battaglia joined. The concurrence was with respect to the Use Plaintiff holding. The dissent was as to the apportionment holding. The dissenters would have remanded the case back to the trial court for a Frye-Reed hearing to determine whether the defense expert’s theory that Plaintiff’s injury is capable of apportionment is generally accepted in the scientific community. The dissenters disagreed with the majority’s holding that in all cases, “death is an indivisible injury as a matter of law and hence, not suitable for apportionment."