Ruling Shows Gaps in Expert’s Testimony; Dixon v. Ford Motor Co.

Attorneys know that experts are frequently important in the courtroom to assist them during trial. A doctor, for example, can introduce expertise and experience that an attorney cannot possibly duplicate. The doctor’s testimony can influence the jury in exactly the way the attorney desires.

It is important, however, to make sure that the expert testimony is credible and supportive. This was proved in a recent case that came before the Maryland Court of Appeals in Dixon v. Ford Motor Co., et al., 2012 WL 2483315. In this case, the plaintiff brought a suit against certain automobile and brake manufacturers alleging that Joan Dixon’s household exposure to asbestos caused her to develop and die from pleural mesothelioma. The complaint alleged that Dixon was exposed to asbestos dust on her husband’s work clothes. He worked with asbestos-containing auto parts.

At trial, the plaintiff’s attorneys introduced Dr. Laura Welch. The attorneys identified her as an expert in asbestos epidemiology.

Defense attorneys did not dispute her expertise, but they objected to the methods and substance of her opinion. She testified that mesothelioma is a dose-response disease, and every exposure to asbestos is a contributing cause to the disease. The jury awarded damages of $15 million, but the award was reduced to $6.06 million. After a series of motions filed by the defense, the award was reduced to $3.03 million.
On appeal, the defendants argued that the trial court erred in allowing her testimony to be admitted because the testimony deserved special scrutiny under the Frye expert witness standard. The Frye standard states that an expert opinion “must be shown to be generally accepted as reliable.”

In this case, the defendants also argued that the testimony was at odds with the frequency, regularity and proximity requirements for substantial factor causation set forth in numerous asbestos cases around the country. The court stated that it must be determined whether the exposure increased one’s risk of harm in order to hold another party responsible. Although a minimum risk level need not be set, the court concluded that Welch provided no information that could help the finder of fact to decide whether the elevated risk in this case was substantial. The information that Welch provided did not help the jurors to weight the substantiality of the defendants’ contribution to Dixon’s disease. In coming to this conclusion, the court joined with several other jurisdictions in requiring quantitative epidemiological evidence to establish substantial causation.

The court agreed with the defendants’ argument that “case reports” and other anecdotal evidence are not probative of either general or actual causation. The court also found that all Welch provided the jury with was her subjective opinion of responsibility and not a mathematical or probable analysis of evidence of causation. The appellate court excluded her testimony, vacated the judgment and remanded the case back to the trial court for a new trial.

Chicago’s Kreisman Law Offices has been handling Illinois medical malpractice cases for individuals and families for over 36 years in and around Chicago and Cook County, including Naperville, Elmhurst, Franklin Park, Oak Park, and Des Plaines, Ill.