lungsIn what asbestos litigation defendants hope will become a growing trend, the United States District Court for the District of Maryland recently drew a clear distinction between expert testimony as it relates to causation of both pleural mesothelioma (affecting the lining of the lung) and peritoneal mesothelioma (affecting the stomach).  In Rockman v. Union Carbide Corp, et al., 1:16-cv-01169-RBD, 2017 WL 3022969, the court recently granted defendant Union Carbide and Georgia-Pacific’s motion to preclude expert testimony as to causation and in turn, sustained defendants’ motions for summary judgment.

Rockman involves plaintiff Jeffrey Rockman, who allegedly developed peritoneal mesothelioma resulting from asbestos exposure during three minor home repair projects in 1965, 1973 and 1976; all lasting no more than several weeks in total.  It is undisputed that plaintiff did not perform those home repairs himself, but rather hired a handyman.  Mr. Rockman contends that Georgia-Pacific “Ready Mix” joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which he was exposed.  Plaintiff was merely a bystander.

In support of his claims, plaintiff submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank and Dr. Arnold Brody who specifically concluded that plaintiff’s alleged exposures to Union Carbide chrysotile asbestos contained in Georgia-Pacific’s Ready Mix joint compound caused him to develop peritoneal mesothelioma.  Additionally, Dr. Brody concluded that “each and every” exposure to asbestos “cumulates” and should therefore be considered a cause of the injury, regardless of the type of mesothelioma, the exposure dosage, or the type of asbestos.  In reaching these conclusions, plaintiff’s experts relied on numerous studies of pleural mesothelioma despite reports from Dr. Abraham and Dr. Brody acknowledging that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.

In assessing the reliability of plaintiff’s expert’s testimony, the court turned to Rule 702 of the Federal Rules of Evidence as well as the long established U.S. Supreme Court interpretation of Rule 702 set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993) and recently reaffirmed in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017) allowing the courts to “act as a gatekeeper to ensure that testimony is relevant and reliable”.  Id.  In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness’ theory or technique: (1) can be or has been tested; (2) has been subject to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.  Id.

 

Ultimately, the Court determined that plaintiff’s expert’s specific causation opinions are not the product of reliable principles and methods as required by Rule 702.  Contrary to the factors set forth in Daubert, Drs. Abraham and Frank had improperly drawn conclusions about a case involving peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, basing their opinions entirely on prior
Continue Reading

camelsFive plaintiffs in a smoking lung cancer case in a Baltimore City, Maryland case captioned James Harrell, et al v. ACandS, INC., et al, Consol. Case No. 24X16000053 saw their claims go up in smoke on November 15, 2016 when the Court granted certain Defendants’ Motion for Summary Judgment on the Basis of Assumption of Risk and Contributory Negligence. With Judge Althea M. Handy presiding, the Court addressed whether the plaintiffs had assumed the risk of developing lung cancer by knowing of the addictiveness of cigarettes and their ability to cause lung cancer, but nevertheless proceeding to smoke cigarettes numbering in the thousands.

In Maryland, assumption of the risk is a defense that serves as a complete bar to plaintiff’s recovery of damages under both negligence and strict liability for failure to warn causes of action.[1] To prevail on the defense of assumption of the risk, the defendant must show that the plaintiff “1) had knowledge of the risk of danger; 2) appreciated that risk; and 3) voluntarily confronted the risk of danger.”[2] Under Maryland law, the first two elements are judged by an objective standard. The third element requires that the defendant establish that there was no restriction on the plaintiff’s freedom of choice either by existing circumstance or by coercion emanating from the defendant.[3]

With regard to the first element, the Court in Harrell found that the plaintiffs had knowledge and appreciated the risk that cigarettes were hazardous not by any direct evidence, but instead by relying on discussions of the hazards in the popular media, an almost guilt by association theory. For example, the Court noted that Reader’s Digest, “one of the most widely read publications in the 1920s and 1930s published articles discussing the addictiveness of cigarettes” and that a popular country artist recorded lyrics in 1947 that used phrases like “nicotine slave” and “smoke yourself to death.” The Court further relied on Maryland jurisprudence that concluded that “the ordinary consumer was aware of smoking hazards . . . since the 1950s.”[4]

With regard to the second element, the Court again relied not on any appreciation of risk specific to the plaintiffs, but on “common knowledge by the 1950s” that smoking cigarettes caused lung cancer. The court cited CBS News Program airings on smoking and lung cancer, 1950s print media reporting the connection, and again referenced case law that “found that from 1947 to 1984 the dangers of smoking were obvious and generally known so as to bar the plaintiff’s claims.”[5]

Finally, with regard to the third element, the court found that because the plaintiffs smoked such a high number of cigarettes (reaching in the tens and hundreds of thousands) from the 1950s through the subsequent decades, during a time when warning labels were required on every package, they voluntarily confronted the risk of smoking.

Earlier this year in the The Estate of Willard Entwisle, et al. v. ACandS, Inc. et al., Consol. Case No. 24X15000108, a different Baltimore
Continue Reading

The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate
Continue Reading