Maryland's highest appellate court ruled last week that a plaintiff's expert in an asbestos injury lawsuit could testify that every single exposure to asbestos substantially contributes to the development of mesothelioma, restoring a $15 million judgment against Ford Motor Co. The lower appellate court had found the opinion without foundation and had excluded it under the Maryland Frye doctrine.
The "every exposure counts" theory of causation espoused by plaintiffs' experts states that every exposure to asbestos contributes to the risk of developing mesothelioma, so all exposures are substantial factors in causing the plaintiff's mesothelioma. This theory is a popular trial tactic among asbestos Plaintiffs' attorneys throughout the country and their retained experts readily espouse this theory.
The Dixon decision may make it more difficult to challenge expert testimony in states that follow Frye based on this theory. The opinion provides additional support for plaintiff's attorneys in fighting off challenges to plaintiff's expert's testimony based on the "each and every exposure counts" theory in states which still follow the antiquated Frye doctrine for admissibility of expert testimony. The trend by State and Federal courts following the Daubert standard for admissibility of expert testimony, on the other hand, is to exclude testimony based on that theory. See, e.g., Bartel v. John Crane, Inc. 316 F.Supp.2d 603, 605 (N.D. Ohio 2004) (excluding the opinion of Dr. Arthur Frank); Butler v. Union Carbide Corp, 712 S.E. 2d 537 (Ga. App. 2011) (excluding the opinion of Dr. John Maddox). See also In re Asbestos Litig., 2008 WL 4600385, at 36 (Phil. Ct. Com. Pl. Sept. 24, 2008) (Tereshko, J.) (excluding Dr. Eugene Mark's testimony under Frye); Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012) (excluding Dr. Maddox's opinions under Frye).
To read the full opinion, click here.