BERNARD DIXON, etc. et al.
FORD MOTOR COMPANY
Bell, C.J., [*] Harrell Battaglia Greene Barbera McDonald Wilner, Alan M. (Retired, specially assigned) JJ.
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? 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.
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 the action 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,  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.
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 the clothes 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.
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 wives of brake mechanics. 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 accepted by the scientific community.
Dr. Welch first addressed the question of whether exposure to asbestos-laden dust brought into the home constitutes a high or low level of exposure. She stated that studies looking at household contamination from occupational exposure showed that the household exposure constituted a high level of exposure. She explained that the asbestos fibers from a day's worth of dust on clothes, that gets shaken off, remain on the floor and in the air for a considerable period of time, so that one day's worth can produce on-going exposure for days or even months. The fibers do not dissolve or evaporate. Each day that a worker brings home dust-laden clothes adds to that on-going contamination.
She then turned her attention to the subject of dose-response and compared mesothelioma to asbestosis and lung cancer. Mesothelioma, she said, is a cancer in the lining of the lung, which has a much smaller mass than the lung itself. Asbestosis is a scarring of the tissue in the lung. It therefore takes much greater exposure to asbestos to produce the level of scarring that results in asbestosis than it does to produce mesothelioma, which is not as dependent on repeated exposure; once a cancer forms, it is there and does not get worse from further exposure. Lung cancer, she added, has multiple causes, such as smoking, whereas mesothelioma is caused predominantly by asbestos. Her conclusion was that even a low exposure to asbestos can cause mesothelioma.
Citing a number of national and international studies, including those from the World Health Organization, the Environmental Protection Agency, OSHA, and the National Cancer Institute, Dr. Welch stated that all forms of asbestos, including the chrysotile in brake linings, can create a risk of getting mesothelioma. In direct contrast to the view of Ford, she stated, based on those epidemiological studies, that "there is no question . . . that all forms of asbestos cause lung cancer and mesothelioma." When asked more specifically about epidemiological studies limited to persons working on brake linings getting mesothelioma, she said that, because mesothelioma is such a relatively rare disease (less than 2, 800 cases of mesothelioma in the U.S. each year compared with nearly 200, 000 annual cases of lung cancer) and because not all mechanics work on brakes, it was difficult to do a specific job-related epidemiological study, and that, in such instances, it is appropriate to look at case-control studies. Such studies, she said, have shown a connection between working on brakes and mesothelioma.
The part of Dr. Welch's opinion most directly challenged by Ford, and found useless by the Court of Special Appeals, came in response to a hypothetical question. She was asked to assume that (1) Mr. Dixon performed approximately two brake inspections or replacements a week, mostly on Ford vehicles, from the early 1960s through 1975, (2) during that period, Ford brake systems contained asbestos, (3) Mr. Dixon's work involved removing brake drums, cleaning the drums and, when needed, replacing the brake shoes, (4) he used compressed air to clean the brake drums and occasionally sanded or filed new brake shoes, which created visible dust in the air, (5) dust got on his clothing and body, (6) he did not shower before going home and wore his clothes home, (7) Ms. Dixon was a bystander to and occasionally assisted Mr. Dixon when he worked on family cars at home, (8) Ms. Dixon did the family laundry, which included shaking out Mr. Dixon's dirty work clothes, and (9) Ms. Dixon lived in the home the entire period and developed malignant pleural mesothelioma.
Based on those assumptions, Dr. Welch stated that Ms. Dixon would have been exposed to asbestos from Mr. Dixon's work on cars and that such exposure was a cause of her mesothelioma. She was then asked to assume that Ms. Dixon also worked with or around drywall joint compound that contained asbestos and that she was also exposed to asbestos from that compound. On those further assumptions, Dr. Welch still was of the belief that Mr. Dixon's work with Ford brake systems was a cause of the mesothelioma because "every exposure to asbestos is a substantial contributing cause and so brake exposure would be a substantial cause even if she had other exposures." She added, somewhat more particularly, that "take-home exposures that a person has during their lifetime [are] a substantial contributing factor to the development of an asbestos-related disease if one occurs." That was because "[e]very increasing dose increases the likelihood of getting it [and] that additional doses decrease the time it takes to get the disease as exposure goes up."
Focusing on Dr. Welch's statement that "every exposure to asbestos is a substantial contributing cause, " Ford insists that the trial court erred in not subjecting her conclusion to a Frye/Reed examination which, in its view, would have shown non-acceptance of that conclusion by the relevant scientific community. As a fallback, it urges acceptance of the Court of Special Appeals view that Dr. Welch's opinion simply was not helpful to the jury because it "conflated" scientific causation and legal causation and should have been excluded for that reason.
The major fallacy in Ford's contention that a Frye/Reed analysis is required is that it looks only to the "every exposure to asbestos is a substantial contributing cause" statement and largely ignores the other parts of her testimony that provide a context to that one statement. In Montgomery Mutual v. Chesson, 399 Md. 314, 326, 923 A.2d 939, (2007), we confirmed that the general test for determining whether to allow expert testimony is set forth in Md. Rule 5-702 – that expert testimony, in the form of an opinion or otherwise, may be admitted if the court determines that the evidence will assist the trier of fact to understand the evidence or determine a fact in issue and that, in making that determination, the court shall determine whether the witness is qualified as an expert, the appropriateness of the expert testimony on the particular subject, and whether a sufficient factual basis exists to support the expert testimony.
A Frye/Reed analysis is required, as a prerequisite to the application of Rule 5-702, only when the proposed expert testimony involves a "novel scientific method, " in which event there must be some assurance that the novel method has gained general acceptance within the relevant scientific community and is not just the view of a dissident minority. We may take judicial notice from our own decisions that the scientific community accepts the proposition that exposure to asbestos may cause mesothelioma. That is not a novel scientific principle. More than 20 years ago, in Eagle-Picher v. Balbos, 326 Md. 179, 194, n.7, 604 A.2d 445, 452, n.7 (1992), based on evidence in the case, we flatly rejected the assertion that mesothelioma cannot be caused by exposure to chrysotile asbestos. Thus, Dr. Welch's opinion that exposure to chrysotile asbestos in Ford brakes may cause mesothelioma also is not a novel scientific principle.
We determined in Balbos that the governing standard for liability in an asbestos case was that stated in § 431 of the Restatement (Second) of Torts – that an actor's negligent conduct is a legal cause of harm if (1) its conduct is a "substantial factor" in bringing about the harm, and (2) there is no rule of law relieving the actor from liability. We concluded as well that, in determining whether the conduct qualifies as a substantial factor, the court must consider, among other things, the nature of the product, the frequency of its use, the proximity, in distance and time, of a plaintiff to the use of the product, and the regularity of the exposure of that plaintiff to the use of the product. Balbos, 326 Md. at 210, 604 A.2d at 460.
In Scapa v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) we confirmed that the Balbos "frequency, regularity, and proximity" test remains "the common law evidentiary standard used for establishing substantial-factor causation in negligence cases alleging asbestos exposure." The question is whether the evidence, viewed at the appellate level in a light most favorable to the prevailing party at trial, suffices to meet that test. In Scapa, we held that evidence that the plaintiff, Mr. Saville, regularly handled Scapa's asbestos-containing product on a daily ...