This is another case that illustrates a major battleground in asbestos litigation today. The issue involves attempts by plaintiffs to hold manufacturers liable for increasingly trivial exposures to hazardous substances. The plaintiff in this case relied on the “any exposure” theory, i.e., that any occupational exposure to asbestos, no matter how slight, is sufficient to be a substantial contributing factor to the plaintiff’s disease.
In this case, the spouse of a worker exposed to asbestos through automotive work and various home improvement undertakings developed mesothelioma and died. The exposed worker sued on behalf of his deceased spouse and reached settlements with three defendants, but proceeded to trial against Ford Motor Company, who provided very minimal if any contributing exposure to asbestos. Plaintiff put forth an expert witness to show causation who testified that any exposure to asbestos is sufficient to cause mesothelioma, regardless of any other factors, including core scientific principles and quantitative information about the plaintiff’s asbestos exposure. The expert also based her conclusion in this case on the “generally accepted fact” that asbestos dust left on a workers clothing can be transmitted to family members in the home environment.
The NAM filed an amicus brief on February 22, 2013. The trial court accepted expert testimony that any occupational exposure above ambient level was sufficient for causation. We opposed this theory because it is a litigation construct that is not found in any published and peer-reviewed article or textbook. Under the theory, the burden is reversed because any exposure is equated with causation. Maryland follows a “substantial contributing factor” test, and use of the any exposure theory would render the state’s causation principles meaningless. The theory does not satisfy normal standards for expert testimony and is irreconcilable with the fundamental toxicology principle relating to dosage. The NAM comments summarized recent movements by other courts towards conforming expert testimony and causation requirements in asbestos cases to standard toxicology and tort principles and submitted that the Maryland Court of Appeals should likewise reject the any exposure theory.
On 7/25/13, the court of appeals found that there was sufficient evidence of exposure to allow the expert testimony. It used an existing standard of causation that considers the "frequency, regularity, and proximity" of the exposure. It found that if there were "a case of truly minimal exposure," it may well raise concerns that could lead to exclusion of the evidence, but that the facts in this case did not justify excluding the testimony. The court did uphold the constitutionality of Maryland's cap on noneconomic damages in wrongful death cases.