E-Alert Case Updates

Court of Appeals Holds that Statutory Cap on Noneconomic Damages Is Constitutional, Trial Court Did Not Err in Admitting Plaintiffs’ Expert, but Trial Court Did Err in Revising Jury Verdict as to Cross-Claim Against Joint Compound Manufacturer

Dixon v. Ford Motor Co.
No. 82 (Maryland Court of Appeals, July 25, 2013)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiff Joan Dixon contracted mesothelioma. Her husband, Bernard Dixon, allegedly handled Ford Motor Company (“Ford”) brakes occupationally, to which Ms. Dixon claimed exposure. Mr. Dixon also claimed that he may have used an asbestos-containing Georgia-Pacific joint compound in home improvement work. The Dixons filed suit against Ford and Georgia-Pacific in the Circuit Court for Baltimore City, claiming negligence and failure to warn. When Ms. Dixon passed away, her husband continued the case as personal representative of her estate, and he and the couple’s four (4) daughters also pursued wrongful death claims.

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 trial court subsequently modified those verdicts in two (2) respects. Applying one aspect of the statutory cap on awards of non-economic damages (MD. CODE ANN., CTS. & JUD. PROC. § 11-108(b)(3)(ii)), the court reduced the amount of the verdicts. 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.

In terms of the exposures, over a 13-year period, from the early 1960s until 1976, Mr. Dixon worked at least two (2) evenings a week, ten (10) months a year, at a garage performing brake maintenance, repair, and replacement work—performing on average two (2) brake jobs per week. About 95 percent of the brake work that Mr. Dixon performed involved Ford brakes. All Ford brakes and braking systems during that period contained chrysotile asbestos. Plaintiff claimed that the work generated asbestos-laden dust that clung to his skin, hair, and clothes. Ms. Dixon laundered his clothes.

With respect to the construction and home improvement work, Mr. Dixon used drywall in the building of his house in the early 1960s, but he used a powder mixed with water and did not know the brand or manufacturer of the powder. In the 1970s, the Dixons performed further home improvement projects. Mr. Dixon used a “premix” Georgia-Pacific joint compound for both the drywall seams and a textured ceiling. His wife sanded and cleaned-up. Evidence was presented by Georgia-Pacific that from 1963 to 1974, its Ready-Mix joint compound contained 3 percent to 8 percent 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.

The trial court permitted Plaintiffs’ expert, Laura Welch, M.D., to testify as to causation, over Ford’s objection. On appeal, Ford argued that Dr. Welch’s testimony that each exposure to asbestos, including asbestos contained in brake linings, may be a contributing cause to mesothelioma, should not have been admitted, because it is not accepted by the scientific community. The Court of Appeals held that Dr. Welch’s opinions, that every exposure to asbestos (even chrysotile) contributed to mesothelioma, were not subject to Frye/Reed because this was not a “novel” scientific principle. Based on Mr. Dixon bringing home asbestos dust twice a week over a 13-year period from Ford brakes, and because Dr. Welch testified that the asbestos fibers from the clothes remained in the home for a considerable period of time, the Court was unwilling to conclude that Dr. Welch’s opinion (that each exposure increased the likelihood of contracting mesothelioma) involved a novel scientific theory not generally accepted in the scientific community. Dr. Welch’s opinion was not in the context of one (1) or two (2) incidental exposures to Ford brakes. The Court left open the possibility that an expert’s broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels, if offered in a case of truly minimal exposure to the defendant’s product, may well raise concerns that would need to be tested under Frye/Reed. The Court also rejected Ford’s argument that Plaintiffs lacked quantitative epidemiological evidence and reiterated that Plaintiffs do not need to present expert testimony as to the amount of respirable asbestos fibers emitted by a particular product.

In terms of the cross-claim issue, Plaintiffs had settled with Georgia-Pacific, but Ford pursued a cross-claim against it, and attempted to show at trial that Georgia-Pacific products were a substantial contributing cause of Ms. Dixon’s illness based on the couple’s home improvement work. The jury found that Ms. Dixon’s exposure to Georgia-Pacific’s product was not a substantial contributing factor in causing her mesothelioma. The trial court struck the jury verdict and entered judgment for Ford under MD. RULE 2-535 which allows a trial court to revise an unenrolled judgment. The trial court expressed disbelief that a reasonable jury could have found that there was no liability on the part of Georgia-Pacific. The Court of Appeals, however, said that the evidence against Georgia-Pacific was “not altogether clear” and that in short, there was no direct evidence that the joint compound used by the Dixons in any of their projects was asbestos-containing Ready-Mix (although an inference to that effect was permissible). The Court of Appeals held that the trial court abused its discretion in setting aside the jury’s verdict on the cross-claim against Georgia-Pacific.

On the issue of the cap on the award of non-economic damages, MD. CODE ANN., CTS. & JUD. PROC. § 11-108(b)(2) limits the damages for non-economic loss in a personal injury or wrongful death action to a fixed amount – $500,000 for causes of action arising on or after October 1, 1994, that amount increases by $15,000 on October 1 of each year after 1994. Section 11-108(b)(3)(ii) provides that, in a wrongful death action in which there are two or more claimants, an award for non-economic damages may not exceed 150 percent of the limitation established under § 11-108(b)(2), regardless of the number of claimants or beneficiaries who share in the award. Applying that statute, the trial court reduced the wrongful death award to Mr. Dixon from $5,000,000 to $426,000 and the awards to each of the four (4) surviving daughters from $1,500,000 to $159,750. There is no dispute that, under the statute in effect when this cause of action arose, the reductions are numerically correct. The plaintiffs’ claim is that § 11-108(b)(3)(ii) violates the Equal Protection Clause of the 14 Amendment and Articles 5, 19, 23, and 24 of the Maryland Declaration of Rights and that there should have been no reductions in the jury’s verdicts. The Plaintiffs complained that the cap was unconstitutional because it created a lump sum cap without regard to how many claimants there are and not informing the jury of that cap. The cap effectively requires the court to redistribute the jury’s awards and thus ignores the jury’s perception of the actual degree of loss suffered by each of the individual claimants, which may differ from one to another. The Court of Appeals disagreed and held that the 150 percent cap does not intrude on the jury’s right to determine the relative degree of harm suffered by the individual claimants; nor does it create irrational classifications among the claimants.

The Court ordered that the judgment entered in favor of Plaintiffs against Ford be affirmed and reversed the judgment entered in favor of Ford on its cross-claim against Georgia-Pacific.