215-987-2019

Two Major Victories for Asbestos Plaintiffs Exposed to Brakes Which Contained Asbestos

This week there were two major victories for asbestos plaintiffs, who were exposed to asbestos containing brakes. The first case was against Ford.

After a long, tough, hard fought battle with Ford, a New York City jury returned a verdict in favor of Arthur Juni and his wife Mary Jo Juni. Mr. Juni died of mesothelioma at age 74 (during the middle of jury selection). Mr. Juni was a career Orange and Rockland County auto mechanic.

Eight million dollars was awarded for pain and suffering and $3 million loss of consortium.  Ford was found 49 percent responsible and the jury also concluded that Ford’s conduct was reckless. Congratulations to my friends and colleagues Adam Cooper, Benjamin Darche and Jerry Kristal who tired the case to verdict.

The second case was against Bendix who manufactured asbestos containing brakes. The second case was brought on behalf of Charity Phillips, the estate of descendent James Phillips and their children Jaycee Smith, Michael Phillips, and JT Phillips.

A Fresno County Ca  jury awarded $6,538,500 in non-economic damages and a stipulated amount of $900,000 in economic damages for a total of $7,438,500. The jury assigned 30 percent fault to Honeywell (Bendix). Honewywell (Bendix) was also hit with $3.5 million in punitive damages, bringing the total verdict to approximately 11 million. Congratulations to my friends and colleagues Stu Purdy and Rob Green who represented the Phillips family.

Pneumo Abex Must Pay $3.3M More To Asbestos Victim’s Family

A California jury determined last week that Pneumo Abex LLC must pay $3.3 million to the family of a now-deceased man who allegedly contracted mesothelioma after being exposed to asbestos in brake linings, in addition to the $9.75 million that was paid to the man and his wife while he was still alive.

If you or a loved one contracted mesothelioma and are in need of an attorney to obtain compensation on your behalf contact the law office of Cohen, Placitella, & Roth at 888-375-7600 for your free consultation.

Cleveland Mesothelioma Case Against Kelsey Hayes Awards 27.5 Million

Congratulations to my friends and colleagues Gary Paul, Demetrios Zacharopoulos and John Mismas for such a tremendous victory. The plaintiff John Panza was only 40 years old and suffering from mesothelioma. He and his wife Jane began dating in high school. John is a college professor. John’s exposure to asbestos came  from his father who was a bystander at a facility the worked on friction materials. John’s father  brought the asbestos fibers  home on his clothes. The jury found the remaining defendant at trial Kelsey Hayes 60% responsible. This is the second major verdict for the Waters & Krause firm this week. Also working on the case were Kyla Cole, Tommy Kneist,  Paul Anderson and Jessica Simpson proving it takes a solid team to achieve these results.

This was only the  compensatory damage phase of the trial. A punitive damage trial will follow.

California Jury Awards 8.6 Million Dollars in Mesothelioma Lawsuit Against Crown Cork

Congratulations to my friend and colleague Scott Frost and his entire team at Waters & Krause for achieving justice for the family of Bill Saller. The California Jury awarded five million dollars in compensatory damages and 3.6 million dollars in punitive damages. The jury found the sole defendant at trial Crown Cork & Seal, 30 percent responsible for the compensatory award and 100 percent responsible for the punitive award.

The victory is vindication for the Saller family who lost the case the first time it was tried back in 2007.  The defense verdict  was overturned on appeal and sent back for retrial.

Crown Cork is responsible for the sale of the insulation product known as Mundet which was used extensively in the refinery where Mr. Saller worked. Crown Cork is known nationally for its refusal to settle and for how hard it fights asbestos victims. Unfortunately even with a finding of punitive damages , it seems doubtful that Crown Cork will change its litigation posture with other asbestos victims. Maybe -hopefully the message sent by this jury will be heard by people that matter.

If you or a loved one suffers from Mesothelioma, contact our experienced attorneys at 888-375-7600.

6 Million Dollar Mesothelioma Verdict Against Asbestos Corporation, LTD

Congratulations to David Cannella and Phil Hoffman for their victory against Asbestos Corporation, LTD of  $6,420,467. Asbestos Corporation Limited is a Canadian mining company that has been selling asbestos fiber since the 1940s. Despite numerous deaths the company continues to maintain it sold the nice asbestos that does not cause mesothelioma . As evidenced by this case, the juries are not buying it.

Plaintiffs against Alcoa plant not required to preserve victims’ lung tissue

Congratulations to my friend and colleague Mona Wallace who obtained a very important decision form the Federal Judge in charge of all asbestos litigation in the federal system nation wide.

This order is exciting and has several findings in it which may help all of us. This case involves the Alcoa plant in Tennessee where John Millsaps worked bringing home asbestos dust on his clothes. Tragically his young daughter-in-law, who spent much time at his home as she was dating his son, was unknowingly exposed to this dust. It was not until long after in her 40s, that she fell ill with mesothelioma. Alcoa moved for summary judgment arguing 1) that plaintiffs have a duty to allow an autopsy and preserve lung tissue, 2) that there is no household exposure duty, 3) that plaintiff must quantify levels of exposure and identify in great detail all asbestos products and 4) that plaintiffs’ experts do not meet Daubert on causation and IH issues.

Alcoa argued Plaintiff had a duty to preserve lung tissue and that Plaintiff “destroyed” evidence by failing to preserve Decedent’s lung tissue by way of autopsy or otherwise. On the duty issue, Alcoa argued that it did not owe a duty because Brenda did not live with John Millsaps, because her exposure started in 1978 after the plant supposedly started cleaning up, and because after 1978, it was not foreseeable that there was a risk of take-home exposure because OSHA was in place and Alcoa said we failed to produce evidence that John Millsaps was exposed to asbestos levels above OSHA standards. Also, Alcoa argued there were no epidemiological studies showing that a machinist like John Millsaps could be exposed to asbestos in harmful amounts.

On the lung tissue issue, Judge Robreno applying Tennessee law found that “Defendant does not present any evidence that Plaintiff deliberately took steps to destroy evidence. More importantly, Defendant does not cite to any authority for its contention that Tennessee law required Plaintiff to preserve Decedent’s lung tissue.” Further, “The Court notes that it is not aware of any jurisdiction in which preservation of lung tissue is required in an asbestos action.” This is an excellent ruling for anyone dealing with autopsy/lung tissue issues.

On Alcoa’s motion to strike the IH expert (Vernon Rose), Judge Robreno found that “Defendant has not cited any authority under Tennessee law that requires Plaintiff to provide expert testimony to establish causation.” Further that “Plaintiff has identified sufficient evidence to survive summary judgment without relying upon the expert testimony of Vernon Rose.”

On the duty issue, the Court found that under the prior Tennessee case of Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008), which was our case as well for another Alcoa household mesothelioma, a duty was owed. “Nothing in Satterfield requires that a person subjected to ‘take home’ asbestos exposure be a resident of the same household as the Defendant’s employee in order for there to be a duty of care owed by the Defendant to that person. Rather, Satterfield specifically holds that the class of ‘foreseeable’ people to whom a Defendant such as Alcoa owes a duty includes ‘persons who regularly and for extended periods of time came into close contact with the asbestos-contaminated work clothes of Alcoa’s employees.’”

On the issue of quantifiable levels and OSHA standards, Judge Robreno said “Nothing in Satterfield requires Plaintiff to present evidence of asbestos levels in relation to OSHA standards, or to provide epidemiological studies showing that certain classes of workers (or their household members) were at risk of being exposed to asbestos.” The Court also said, “the Court notes that Defendant has failed to identify any source requiring Plaintiff to establish the amount of asbestos released from products with which John Millsaps works. It is clear from Satterfield that there is no such requirement and that, in fact, an employee need not have brought home asbestos from a product with which he or she directly worked.” Finally, Judge Robreno found, “Plaintiff has identified sufficient evidence from which a reasonable jury could conclude that Decedent was exposed to respirable asbestos brought home from the Alcoa facility on the clothes of John Millsaps (including from products with which he worked).”

The Case number is 2:10-cv-84924-ER, E.D. PA. On Pacer you can also access the very voluminous briefing that was filed.

Chris Placitella has been handling asbestos cases in New Jersey and Pennsylvania for over 30 years. Call 215-987-2019 for a free consultation.

CPR Mesothelioma from NextLevel Web Strategies on Vimeo.

Farrise obtains 39 million dollar verdict against Borg Warner

Congratulations to my friend and colleague Simona Farrise in obtaining a 39 Million Dollar verdict against Borg Warner. The breakdown of the verdict was $6.5m in compensatory damages and, 32.5m in punitive damages. today. Borg Warner made asbestos containing clutches installed in millions of automobiles.This was a hard fought 5 week+ trial.

Borg Warner is scheduled to go to trial again in NJ in September.

Chris Placitella has been handling asbestos cases in New Jersey and Pennsylvania for over 30 years. Call 215-987-2019 for a free consultation.

Jury rules for cancer victims in landmark NYC asbestos case.

 

Congratulations to my friend and colleague Dan Kraft who tried this case. While the verdict amount is not likely to stand up it sends a powerful message to those defendants who refuse to negotiate cases in good faith.

The New York Post (7/25, Marsh, 498K) reports that five cancer victims “won a whopping $190 million verdict in an asbestos case against two boiler companies,” but “only two of the five plaintiffs lived to see their victory,” as “three other tradesmen died from mesothelioma, an aggressive cancer caused by asbestos exposure.” The Manhattan Supreme Court jury came to a verdict on Tuesday after an 11-week trial, “having found the national companies – Burnham and Cleaver-Brooks – acted with reckless disregard for human life.” The victims were steamfitters, plumbers and construction workers, “but were not warned of the dangers related to the exposure to the deadly material. ‘These tragedies shouldn’t have happened,’ said their attorney, Daniel Kraft Jr. ‘I hope this verdict sends a message that corporations’ recklessness has a very real impact on people’s lives.’”

Maryland’s Highest Court Affirms $ 15,000,000 Dollar Mesothelioma Verdict Against Ford

Congratulations to my friends and Colleagues Jon Ruckdeschel & Christian Hartley in thier great victory today over Ford. The Maryland Court of Appeals (which is the Maryland Supreme Court) handed down a terrific decision in the Dixon case. A full copy appears below.The intermediate court had reversed the trial verdict and announced a standard for causation proof that would have been outside the majority rule .  In reaffirming the Balbos case, the Marland High  Court sent a clear message that the scientific concepts discussed decades ago remain valid today.
Unfortunately the plainitff did not win her constitutional challenge to Maryland’s cap on wrongful death damages (not surprisingly).  As such, the verdict from trial of $15,000,000 will be capped down to just over 6 million with Ford paying the whole verdict and post judgment interest over the past three years. The Court also reversed the trial court’s grant of JNOV relief with respect to Ford’s cross claim against Georgia Pacific, which had cut the judgment in half.  The Court noted that there was nothing remarkable about the jury finding Ford failed to prove the cross claim.

 

HEADNOTE
Dixon v. Ford Motor Company
No. 82, September Term 2012, Opinion by Wilner. J. (Retired, Specially Assigned)
IN WRONGFUL DEATH ACTION WHERE WIFE/MOTHER DIED OF
MESOTHELIOMA ALLEGEDLY CAUSED BY EXPOSURE TO ASBESTOS-LADEN
DUST BROUGHT HOME BY HUSBAND FROM WORKING ON FORD BRAKE
PRODUCTS AND/OR BY ASBESTOS-LADEN DUST FROM JOINT COMPOUND
USED BY WIFE AND HUSBAND IN HOME IMPROVEMENT PROJECTS:
(1) TRIAL COURT DID NOT ERR IN ALLOWING EXPERT TESTIMONY,
BASED IN PART ON EVIDENCE OF MULTIPLE AND CUMULATIVE
EXPOSURES BY WIFE, OVER 13-YEAR PERIOD, TO ASBESTOS FIBERS FROM
THE FORD BRAKE PRODUCTS, THAT ANY OF THOSE EXPOSURES
CONSTITUTED A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE
MESOTHELIOMA;
(2) TRIAL COURT ERRED IN OVERTURNING JURY VERDICT THAT
JOINT COMPOUND USED IN HOME IMPROVEMENT PROJECT WAS NOT A
SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE MESOTHELIOMA;
(3) CAP ON NON-ECONOMIC DAMAGES IN WRONGFUL DEATH ACTION
INVOLVING TWO OR MORE CLAIMANTS OF 150% OF CAP ON INDIVIDUAL
AWARD OF NON-ECONOMIC DAMAGES DOES NOT VIOLATE EQUAL
PROTECTION, DUE PROCESS, RIGHT TO JURY TRIAL, OR ART. 19 OF MD.
DECL. OF RIGHTS;
(4) TRIAL COURT DID NOT ERR IN DENYING MOTION FOR NEW TRIAL.
IN THE COURT OF APPEALS
OF MARYLAND
No. 82
September Term, 2012
____________________________________________
BERNARD DIXON, etc., et al.
v.
FORD MOTOR COMPANY
____________________________________________
*Bell, C.J.,
Harrell
Battaglia
Greene
Barbera
McDonald
Wilner, Alan M. (Retired, specially assigned)
JJ.
____________________________________________
Opinion by Wilner, J.
Bell, C.J. and Battaglia, J., dissent.
____________________________________________
Filed: July 25, 2013
*Bell, C.J., participated in the hearing of the case, in
the conference in regard to its decision and in the
adoption of the opinion, but he had retired from the
Court prior to the filing of the opinion.
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 1 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.2
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
1 Particularly in light of a case argued the same day as this one, also involving a
product liability claim by a household member who contracted mesothelioma, Georgia-
Pacific v. Farrar, Md. , A.3d (2013) (S.T. 2012, No. 102), it is important
to note that no issue was raised in this appeal as to whether, prior to 1972, Ford was or
should have been aware of the danger to household members from asbestos fibers brought
into the home on the clothes of another household member. The existence of such direct
or imputed knowledge seems to have been assumed which, given that Ms. Dixon’s
exposure to asbestos dust emanating from Ford products extended well beyond 1972, may
have been appropriate. In any event, because that issue was not raised in this appeal, we
have not addressed it.
2 The Dixons sued several other manufacturers of asbestos-laden products as well,
but, except with respect to a claim against Honeywell International, Inc., the claims
against those defendants are not before us in this appeal.
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 3 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’
3 All of the jury’s awards were for non-economic damages. They totaled $15
million, as follows: (1) to Mr. Dixon, as personal representative of his wife’s estate, $5
million; (2) to Mr. Dixon on his wrongful death claim, $4 million, and (3) to each of the
four daughters on their wrongful deal claims, $1.5 million. As adjusted, the wrongful
death awards were reduced to $426,000 for Mr. Dixon and $159,750 for each of the
daughters.
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principal expert, Dr. Laura Welch, that every exposure to asbestos, including the shortfiber
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 crosspetition
by Ford to consider the validity of the Court of Special Appeals decision and the
issues raised in but not decided by that Court.4
There is some overlap in the four questions raised by the plaintiffs 4 and the four
raised by Ford. Eliminating the overlap, the issues, restated by us, are:
(1) Was the Court of Special Appeals correct in concluding that the trial
court erred in admitting Dr. Welch’s opinion testimony, and if so was the trial court’s
error harmless;
(2) If the Court of Special Appeals conclusion was correct, should that court
have directed that a judgment be entered for Ford rather than ordering a new trial;
(3) Did the trial court err (i) in using its revisory power under Rule 2-535 in
entering judgment for Ford against Georgia-Pacific, and (ii) if not, in not using that power
to enter judgment on Ford’s cross-claim against Honeywell – another alleged source of
asbestos exposure;
(4) Does Code, Cts. & Jud. Proc. Article, § 11-108(b)(3)(ii), in capping an
award for non-economic damages to multiple claimants in a wrongful death action at
150% of the maximum amount of non-economic damages that may be awarded to an
individual claimant in such an action, violate Federal and State equal protection principles
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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
and Articles 5, 19, 23, and 24 of the Maryland Declaration of Rights; and
(5) Did the trial court abuse its discretion in denying Ford’s motion for new
trial on the grounds that (i) the jury’s verdicts were inconsistent, against the weight of the
evidence, and shocking, and (ii) plaintiffs’ counsel’s closing arguments were improper
and prejudicial.
- 4 -
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.5
In supplemental answers to interrogatories, the Dixons 5 indicated that the
Georgia-Pacific compound may have contained asbestos, but at trial, Mr. Dixon stated
that he did not know whether the compound he and Ms. Dixon used contained asbestos.
Some of the home improvement work they did was in or after 1974, when the nonasbestos
compound was on the market.
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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
- 6 -
of brake mechanics. Ultimately, the court, concluding that it was 6 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
6 Although Dr. Welch had not physically examined Ms. Dixon, she said that she
did review Ms. Dixon’s medical records and took the information therein into account in
forming her opinions.
- 7 -
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
- 8 -
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
- 9 -
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,
- 10 -
(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.7 Thus,
7 In considering Eagle-Picher’s argument that there was insufficient knowledge
prior to 1944 of the health hazards of exposure to asbestos to require warnings, we
observed in the cited footnote:
“Eagle would have us further limit the analysis to chrysotile asbestos.
Eagle argues that its products contain only chrysotile asbestos and that
mesothelioma cannot be caused by that type of asbestos. This argument
ignores conflicting evidence as to both of its underpinnings. The argument
- 11 -
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 basis for at least one year was legally
also ignores that the jury could have found that the expert on whose
testimony the argument rests had been substantially impeached.”
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sufficient to create a jury question on proximate cause. Id. at 505, 16 A.3d at 164.
As noted, the evidence in this case was that Mr. Dixon worked on Ford brakes, on
average, twice a week, 10 months a year, for 13 years, and that Ms. Dixon dealt with the
dust-laden clothes and the ubiquitous asbestos fibers on most of those occasions. Even
acknowledging that Mr. Dixon’s work was part-time evening work, that translates into his
bringing home asbestos-laden dust from Ford brakes on more than 1,000 days, which, in
terms of Ms. Dixon’s exposure to that dust, is at least on a par with Mr. Saville’s exposure
in terms of frequency, regularity, and proximity.
Dr. Welch’s ultimate opinion was based on that evidence and more – not just the
raw number of occasions that the dust was brought into the home twice a week over a 13-
year period, but as well on evidence that, because the asbestos fibers brought in on each
occasion remained in the home for a considerable period of time, the exposure was
continuous and cumulative in effect. With that background and context, we are unwilling
to conclude that Dr. Welch’s opinion that each exposure increased the likelihood of
contracting mesothelioma and thus constituted a substantial contributing factor involved a
novel scientific theory not generally accepted in the scientific community. Her opinion
was not in the context of one or two incidental exposures to Ford brakes.
In contending that Dr. Welch’s one statement is not generally accepted in the
scientific community, Ford cites a number of out-of-State cases, some of which, on
examination, are distinguishable in a number of respects. Smith v. Ford Motor Co., 2013
- 13 -
U.S. Dist. LEXIS 7861 (D. Utah 2013), for example, is an unreported U. S. District Court
opinion in which the judge concluded that an “every exposure” opinion was inadmissible
under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125
L. Ed.2d 469 (1993) when the evidence showed that the plaintiff was exposed to Ford
brakes only seven times 45 years before the suit was filed. A somewhat similar
circumstance existed in Butler v. Union Carbide Corporation, 712 S.E.2d 537 (Ga. App.
2011), an intermediate appellate court ruling affirming the disallowance, under Daubert,
of an “every exposure” opinion, when the evidence showed that less than one percent of
the product to which the plaintiff may have been exposed was that of the defendant Union
Carbide.
The closest case cited, at least facially, is Betz v. Pneumo Abex LLC, 44 A.3d 27
(Pa. 2012), in which the court sustained the decision of the trial judge (1) to conduct a
Frye examination with respect to an “every exposure” opinion, and (2) to disallow the
opinion as inconsistent with a “substantial factor” analysis. That case, too, though the
court’s opinion is a thorough one, is distinguishable. The Pennsylvania Supreme Court
took the case as a test case, from among others then pending, to examine the “every
exposure” theory in a global context, without regard, it seems, to any particular facts. The
court made that clear in rejecting the plaintiff’s urging that the case was “not a case of de
minimis exposure,” noting that “this case was selected among test cases for the anyexposure
opinion as a means, in and of itself, to establish substantial-factor causation.” Id.
- 14 -
at 55 . That is not the context of this case.
All we know from the court’s opinion regarding the facts of the Betz case is that
the plaintiff worked as an automobile mechanic for 44 years, during which he was exposed
to asbestos-containing friction products, such as brake linings, that he eventually
contracted mesothelioma, from which he died, and that the lawsuit was against several
defendants. There is nothing in the court’s opinion as to how many brake linings he
worked with or whose. What was before the court was the proposed expert’s “broad-scale
opinion on causation applicable to anyone inhaling a single asbestos fiber above
background exposure levels.” Id. at 54 . That kind of opinion, if offered in a case of truly
minimal exposure to the defendant’s product, may well raise concerns that would need to
be tested under Frye/Reed, but, as we have indicated, that is not what is before us here.
Dr. Welch’s opinion was based on evidence of repeated exposures by Ms. Dixon to highlevel
doses of asbestos fibers emanating from Ford brakes and must be viewed in that
light.
Ford fares no better in its reliance on the Court of Special Appeals’ “probabilistic
causation” analysis, from which that court concluded that, in order for a trier of fact to find
that exposure to a particular asbestos product constitutes a substantial contributing factor,
there must not only be evidence of the quantity of the alleged exposure but also
“quantitative epidemiological evidence,” and that, lacking that evidence, Dr. Welch’s
opinion that Ms. Dixon’s exposure to asbestos from Ford brakes constituted a substantial
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contributing factor could not have been of any help to the jury and was therefore wrongly
admitted. We note initially that, despite the court’s attempt in footnote 13 of its opinion to
draw a distinction, that view seems directly inconsistent with the court’s pronouncement in
ACandS v. Abate, 121 Md. App. 590, 671, 710 A.2d 944, 984 (1998) rejecting that very
proposition and stating “[w]e shall not hold that a plaintiff in any asbestos case must
present expert testimony as to the amount of respirable asbestos fibers emitted by a
particular product.”
Even to the extent that philosophers of science might find some underlying merit in
the court’s articulation of its “probabilistic causation” analysis, its application of that
analysis in reaching its ultimate conclusion improperly viewed the one statement by Dr.
Welch that each exposure increased the likelihood of Ms. Dixon contracting the disease
and thus was a substantial contributing factor in isolation, detached from the hypotheses
on which it was based. As we have pointed out, those hypotheses, which formed a part of
Dr. Welch’s opinion and were supported by substantial evidence, took account not only of
the frequency of Ms. Dixon’s exposure to asbestos-laden dust from Ford brakes but why
that repeated exposure was of high, not low, intensity.
Viewed properly in context, the trial court did not abuse its discretion in allowing
the testimony. In light of that conclusion, the issues of whether any error by the trial court
was harmless and whether judgment should have been entered in favor of Ford are moot.
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CROSS-CLAIMS AGAINST GEORGIA-PACIFIC AND HONEYWELL
RESTATED QUESTION (3)
As noted, the plaintiffs joined Georgia-Pacific and several other manufacturers as
co-defendants and, until shortly before trial, maintained that Ms. Dixon’s exposure to their
asbestos-laden products also was a substantial contributing causes of her mesothelioma.
Prior to the scheduled trial, however, the plaintiffs settled with those co-defendants and
thereafter pursued their case only against Ford. By stipulation, they dismissed all of their
claims against Georgia-Pacific. Because Ford had filed cross-claims against those codefendants,
however, they remained as defendants in the case, and Ford sought to show
that their products were substantial contributing causes of Ms. Dixon’s disease.
At the conclusion of the evidence, Ford did not move for judgment against Georgia-
Pacific or Honeywell on its cross-claims, perhaps on the theory that such a motion was
premature until Ford’s liability to the plaintiffs was established. The issue was submitted
to the jury which, as noted, answered “No” to whether Ms. Dixon’s exposure to Georgia-
Pacific’s or Honeywell’s product was a substantial contributing factor in causing her
mesothelioma. Following rendition of the verdicts, Ford moved for judgment NOV under
Rule 2-532 on its cross-claims against those two co-defendants, arguing that the jury’s
verdict with respect to them was inconsistent with its finding of liability on the part of
Ford and therefore was against the weight of the evidence. Rule 2-532(a) expressly states,
however, that “[i]n a jury trial, a party may move for judgment notwithstanding the verdict
only if that party made a motion for judgment at the close of all the evidence and only on
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the grounds advanced in support of the earlier motion.”
Though recognizing some merit in Ford’s contention that, until Ford’s liability was
established, a motion for judgment on those cross-claims would have been premature, the
trial court, relying largely on Scapa v. Saville, 190 Md. App. 331, 348-51, 988 A.2d 1059,
1068-70 (2010) concluded that a motion for judgment was indeed a prerequisite to a
motion for judgment NOV and denied the JNOV motion for that reason. Nonetheless,
exercising its broad discretion under Rule 2-535 to revise an unenrolled judgment, the
court struck the judgment in favor of Georgia-Pacific and entered judgment for Ford. It
did so for two reasons – because of “the comments during closing arguments,” upon which
the court did not elaborate, and because “there was so much evidence, dramatic evidence
against Georgia-Pacific.” The court expressed disbelief that a reasonable jury could have
found that there was no liability on the part of Georgia-Pacific. It did not have the same
view with respect to Honeywell and declined to provide relief with respect to that
defendant.
Neither side is entirely happy with that result. The plaintiffs complain that the trial
court erred in using Rule 2-535 as an “end run” around the clear requirement of Rule 2-
532(a), and Ford complains that the court erred in not providing the same relief with
respect to Honeywell. As noted, the Court of Special Appeals did not address those
arguments.
Although the cross-claim issue became moot under the Court of Special Appeals
- 18 -
ruling that there was no liability on Ford’s part, in light of our conclusion that the
intermediate appellate court was wrong in that respect, it is moot no longer, and, indeed,
raises the questions whether (1) a motion for judgment on a cross-claim that is contingent
on a finding of liability on the part of the movant is permissible in advance of a finding
that the movant is liable, (2) if not, there is an implied exception to the requirement in Rule
2-532(a) that such a motion be filed, and (3) if there is no such implied exception and Rule
2-532(a) would require denial of a motion for JNOV, it is permissible or appropriate for a
court to invoke Rule 2-535(a) to circumvent that requirement. Fortunately, in this case, it
is not necessary to address those issues, for there is another reason, apparent in the record,
to conclude that the trial court erred in effectively reversing the jury’s verdict.
As we have observed, notwithstanding the plaintiffs’ dismissal of their claims
against Georgia-Pacific, that company remained a defendant with respect to Ford’s crossclaim,
and every effort was made by Ford to establish that the Georgia-Pacific product was
at least a, if not the, substantial contributing cause of Ms. Dixon’s mesothelioma. The
critical evidence, however, which focused on (1) the Dixons’ installation of drywall during
the construction of their house in 1963-64, (2) construction of an addition to the house in
1971-73, (3) the installation of drywall and textured ceilings during the construction of the
apartment building later in 1976-78, and (4) drywall work that Mr. Dixon did for some
friends, was not altogether clear. In the three projects on their property, Ms. Dixon did
much of the sanding and was exposed to the dust emanating therefrom.
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The Dixons said that, when building the house in the early 1960s, they did not use
a pliable compound, such as Ready-Mix, but instead used a powder that they mixed with
water. There was no evidence that the powder was manufactured or marketed by Georgia-
Pacific or that it contained asbestos; Mr. and Ms. Dixon both testified that they did not
know who manufactured the product. They acknowledged using a Georgia-Pacific
compound when constructing the addition to the home in the early 1970s, but did not
specifically identify the compound as Ready-Mix. They said only that it came in buckets
that had the Georgia-Pacific name or the letters GP on them. That was the case as well
when building the apartments later in 1976-78.
Until 1977, Georgia-Pacific marketed a Ready-Mix compound that contained
asbestos, and it is possible that the Dixons used that product when they constructed the
addition to their home and when they built the apartment building. Mr. and Ms. Dixon
both acknowledged that they used a Georgia-Pacific product, although neither identified it
as Ready-Mix. Beginning in 1974, however, Georgia-Pacific marketed a Ready-Mix
compound that did not contain asbestos, and it is also possible that the Dixons used that
product instead, at least when constructing the apartments. In short, there was no direct
evidence that the compound they used in any of the projects was asbestos-laden Ready-
Mix, although an inference to that effect was certainly permissible.
During closing argument to the jury, the plaintiffs’ attorney spoke briefly about the
culpability of Georgia-Pacific. He said that, until about a month before trial, he thought he
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could prove Ms. Dixon’s exposure to Georgia-Pacific’s joint compound, but that, after
taking the deposition of a Georgia-Pacific witness, he concluded that he would be unable
to establish that exposure. Ford objected to those statements and moved for a mistrial.
The court denied the motion and instead gave a curative instruction that the attorney’s
statements were improper and should be disregarded. Clearly, at that point, the court was
convinced that a mistrial was not called for and that the curative instruction sufficed.
In his closing argument, Ford’s attorney mentioned Georgia-Pacific only in passing,
noting that there was evidence that the drywall compound used by the Dixons was made
by Georgia-Pacific and that asbestos was in the compound “during certain years.”
A trial circuit court’s discretion under Rule 2-535(a) to revise an unenrolled
judgment is broad. Although in several cases, our predecessors have referred to it as
“unrestricted,” in Southern Management v. Taha, 378 Md. 461, 495, 836 A.2d 627, 646
(2003), we observed that, because the exercise of the trial court’s discretion is subject to
appellate review, it is not truly unrestricted but simply broad. That is a more accurate
description. The purpose of allowing that discretion, which informs any limits to it, is “to
ensure that technicality does not triumph over justice.” Id. 378 Md. 494, 836 A.2d 646.
The purpose is not to allow the trial judge to upset jury verdicts that he or she simply does
not agree with, for, if that were the standard, there would be little left to the right of jury
trial in civil cases guaranteed under Articles 5 and 23 of the Maryland Declaration of
Rights.
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On this record, we believe that the trial court abused its discretion in setting aside
the jury’s verdict on the cross-claim against Georgia-Pacific. There was no direct
evidence that Ms. Dixon was ever exposed to asbestos emanating from a Georgia-Pacific
product. At best, an inference could fairly have been drawn that she was, which made the
issue one for the jury to resolve. The court carefully and properly instructed the jury on
the standards it was to apply in weighing the evidence, explaining that the jury was the
sole judge of whether testimony should be believed and of the weight of the evidence and
that the party asserting a cross-claim had the burden of proving it. The court told the jury
that, in determining whether the party with the burden of proof met that burden, it should
consider the quality of all of the evidence and that, if the evidence was evenly divided on
an issue, the finding should be against the party having the burden of proof.
There is no indication that, with respect to Ford’s cross-claim, the jury did anything
other than what it was instructed to do and what was properly within its province to do.
There was no triumph of technicality over justice. The verdict was not against the weight
of the evidence but simply reflected the jury’s belief that evidence of Ms. Dixon’s
exposure to asbestos from a Georgia-Pacific product was insufficient to show by a
preponderance that such exposure was a substantial contributing factor in causing her
mesothelioma. That conclusion renders the question of whether the court should have
stricken the judgment for Honeywell moot.
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CAP ON AWARD OF NON-ECONOMIC DAMAGES – RESTATED QUESTION (4)
Maryland Code, § 11-108(b)(2) of the Cts. & Jud. Proc. Article limits the damages
for non-economic loss in a personal injury or wrongful death action to a fixed upset
amount – $500,000 for causes of action arising on or after October 1, 1994, that amount to
increase by $15,000 on October 1 of each year after 1994. Section 11-108(b)(3)(ii)
provides that, in a wrongful death action in which there are two or more claimants, an
award for non-economic damages may not exceed 150% of the limitation established
under § 11-108(b)(2), regardless of the number of claimants or beneficiaries who share in
the award. As noted, applying that statute, the court reduced the wrongful death award to
Mr. Dixon from $5,000,000 to $426,000 and the awards to each of the four daughters from
$1,500,000 to $159,750.
There is no dispute that, under the statute in effect when this cause of action arose,
the reductions are numerically correct. The plaintiffs’ claim is that § 11-108(b)(3)(ii)
violates the Equal Protection Clause of the 14 Amendment and Articles th 5, 19, 23, and 24
of the Maryland Declaration of Rights and that there should have been no reductions in the
jury’s verdicts.
To provide some context to the plaintiffs’ argument, it is helpful to review the
evolution of § 11-108. It was first enacted in 1986 (1986 Md. Laws, ch. 639). As
introduced, the bill was limited to personal injury claims arising from medical malpractice
but, during the session, it was amended to apply to all personal injury actions. In Murphy
- 23 -
v. Edmonds, 325 Md. 342, 368, 601 A.2d 102, 114 (1992), we observed that the bill was
the product of a legislatively perceived crisis concerning the availability and cost of
liability insurance, especially for persons engaged in hazardous activities or who were
health care providers. The legislative perception was derived from the reports of two
gubernatorial task forces — one concerned with liability insurance generally and the other
with medical malpractice insurance in particular. Both reports recommended a cap on
non-economic damages of $250,000. The General Assembly opted for a cap of $350,000.
The 1986 law was a simple one. It defined “non-economic damages,” it provided
that, in any action for personal injury arising on or after July 1, 1986, an award for noneconomic
damages may not exceed $350,000, and it required the trier of fact to itemize an
award for personal injury to reflect the amounts intended for past medical expenses, future
medical expenses, past loss of earnings, future loss of earnings, non-economic damages,
and other damages. It said nothing about the procedure for applying the cap on noneconomic
damages – whether the jury was to incorporate the cap into its verdict as part of
its itemization or the court was to apply the cap post-verdict, and it said nothing regarding
whether the cap applied to wrongful death actions.
The first reported challenge to the cap came in what began as a product liability
personal injury action in the U.S. District Court for the District of Maryland. It was not a
death case. When, prior to trial, the statutory cap on non-economic damages was raised,
the plaintiffs added a count for declaratory judgment seeking a determination that the cap
- 24 -
violated the right of jury trial guaranteed by the 7 Amendment to the th U.S. Constitution
and Article 23 of the Maryland Declaration of Rights.
In an opinion by Judge Niemeyer, the court concluded that the statute did not
infringe on the right of jury trial. He reasoned that (1) “a legislature adopting a
prospective rule of law that limits all claims for pain and suffering in all cases is not acting
as a fact finder in a legal controversy,” and (2) the power of the legislature to define or
even abolish complete causes of action necessarily included the power to define what
damages may be recovered by a litigant, especially with respect to non-economic damages,
which are often speculative and are not guided by any economic standard of measurement.
Franklin v. Mazda Motor Corporation, 704 F. Supp. 1325, 1331-32 (D. Md. 1989).
In considering some of the wording of the statute, Judge Niemeyer noted the
requirement that the trier of fact itemize its award, so that non-economic damages can be
identified for purposes of the cap, and concluded that the jury could not properly discharge
that function without being instructed in advance about the limitation and that there was
“no logical reason to keep the jury in ignorance of the cap.” Id at 1329.
Shortly on the heels of Franklin, the Court of Special Appeals decided Potomac
Electric v. Smith, 79 Md. App. 591, 558 A.2d 768 (1989), a survivor’s and wrongful death
action arising from the death of a child who came into contact with a downed power line.
A substantial jury award of non-economic damages was reduced in accordance with the
1986 version of the statute. On appeal, the plaintiffs claimed that (1) the cap did not apply
- 25 -
to wrongful death actions because such an action was not one for personal injury, and (2)
if it did apply, it violated the right of jury trial, Article 19 of the Declaration of Rights, due
process, and equal protection.
The intermediate appellate court concluded that the legislative intent was for the
cap to apply to wrongful death actions but, because the plaintiffs had agreed to a lump sum
award, it was not necessary to decide whether the cap applied to the amount allocated to
each claimant individually. Citing Judge Niemeyer’s opinion in Franklin, the court held
that the cap did not infringe on the right of jury trial and did not violate Art. 19, due
process, or, applying the rational basis test, equal protection.
The Franklin decision was filed in February 1989, during the pendency of the 1989
session of the General Assembly. Obviously concerned about the court’s requirement that
the jury be informed of the cap, the Legislature amended § 11-108 to provide that the jury
not be informed of the limitation and that, if the jury awards an amount for non-economic
damages that exceeds the limitation, the court shall reduce the amount to conform with the
limitation. That amendment took effect July 1, 1989 and was made applicable to jury trials
commenced after that date. See 1989 Md. Laws, ch. 629.
The next significant event in this historical chain was Bartucco v. Wright, 746 F.
Supp. 604 (D.Md. 1990), a wrongful death action filed by the parents of a child killed in
an automobile accident. The jury awarded damages of $300,000 to each parent, and the
defendants moved to reduce the awards, arguing that the cap was on the aggregate award,
- 26 -
not on the award to each parent. Synchronizing § 11-108 with the wrongful death statute,
the District Court, in an opinion by Judge Garbis, rejected that approach. Relying on the
Court of Special Appeals decision in Potomac Electric, the court concluded that the cap
applied to wrongful death actions but that, in such actions, it applied to each claimant
individually and not the aggregate award. Aware of the recent legislative direction that the
jury not be told of the limitation, the court held that “[a]bsent a separate damage cap for
each plaintiff, it would be difficult to square the need for the jury to consider each plaintiff
separately in determining his or her appropriate recovery with the prohibition against
informing the jury of the cap.” Id. at 608.
This Court’s first pronouncements regarding the cap came two years later in
Murphy v. Edmonds, supra, 325 Md. 342, 601 A.2d 102, which was an ordinary personal
injury action not involving death. Applying a heightened scrutiny test, the trial judge
found that the cap violated equal protection and declined to reduce a $510,000 award for
non-economic damages. The Court of Special Appeals disagreed with the trial court’s
reasoning, held that the cap was Constitutional, and directed that the award for noneconomic
damages be reduced to $350,000. This Court affirmed the judgment of the
intermediate appellate court.
We agreed with the Court of Special Appeals that the rational basis test was the
appropriate one to apply and that § 11-108 satisfied that test. We next concluded that §
11-108 “fully preserves the right of having a jury resolve the factual issues with regard to
- 27 -
the amount of noneconomic damages,” noting that “[n]either the $350,000 limit on
recovery nor the provision that the jury not be informed of the limit, interferes with the
jury’s proper role and its ability to resolve the factual issues which are pertinent to the
cause of action.” Id. at 373, 601 A.2d at 117. Finally, although not raised in the briefs,
the Court also concluded that the cap did not amount to a restriction on access to the courts
and therefore did not contravene Article 19 of the Declaration of Rights. See also Oaks v.
Connors, 339 Md. 24, 660 A.2d 423 (1995), confirming Murphy and holding that the
individual cap applicable in a non-death personal injury action included damages awarded
on a loss of consortium claim; there was not a separate cap for that claim.
A year later, in United States v. Streidel, 329 Md. 533, 620 A.2d 905 (1993), we
rejected the views of the U.S. District Court in Franklin and the Court of Special Appeals
in Potomac Electric and held that the General Assembly did not intend for the cap to apply
to awards in wrongful death actions. That ruling had a very short shelf life. In its next
session, the General Assembly amended § 11-108 to make clear that, from and after
October 1, 1994, the cap applied to non-economic damages awarded in wrongful death
actions. See 1994 Md. Laws, ch. 477.
It was in that 1994 law that the Legislature generated the issue now before us, by
drawing a distinction between wrongful death actions and other personal injury cases with
respect to the application of the cap. It mandated that, in personal injury actions generally,
the cap on non-economic damages applied to “each direct victim of tortious conduct and
- 28 -
all persons who claim injury through that victim,” but “in a wrongful death action in which
there are two or more claimants or beneficiaries, an award for noneconomic damages may
not exceed 150% of the limitation . . . regardless of the number of claimants or
beneficiaries who share in the award.”
The last relevant event came three years later, when the Legislature defined and
drew a distinction between primary and secondary claimants in wrongful death actions for
purposes of the cap and established a clear preference for primary claimants.8 If the
amount of non-economic damages for primary claimants equals or exceeds the applicable
cap, the court must (1) reduce each individual award of a primary claimant proportionately
to the total award of all primary claimants so that the total award to all claimants or
beneficiaries conforms to the 150% limitation, and (2) reduce each award to a secondary
claimant to zero. If the award to primary claimants does not exceed the 150% limitation,
the court must enter an award to them as determined by the jury and reduce each
individual award of a secondary claimant proportionately to the total of all secondary
claimants so that the total award to all claimants or beneficiaries conforms to the
limitation. We are not concerned with that statute in this appeal.
Although citing some Federal and State court rulings in other States striking down a
8 A primary claimant is one who is suing because of the death of a spouse, minor
child, parent of a minor child, or certain unmarried adult children. A secondary claimant
is one suing for the death of a child or parent not within the definition of primary
claimant. See § 11-108(a)(3) and (4) and Cts. & Jud. Proc. Art. §§ 3-904(d) and (e).
- 29 -
cap on non-economic damages as being in violation of those States’ Constitutions, the
plaintiffs, presumably with some reluctance, accept this Court’s determination in Murphy
and Oaks that the cap on individual non-economic damage awards provided for in § 11-
108(b)(2) does not infringe on the right to jury trial or, using the rational basis test, on the
right to equal protection of the law. That kind of cap, they note, was based on studies
showing that $250,000 would cover most claims for non-economic damages, and still
allows the jury to focus on the loss suffered by each individual claimant.
What they complain about, and observe that this Court has never addressed, is the
effect of creating a lump sum cap without regard to how many claimants there are and not
informing the jury of that cap. They note that there were no studies attesting to the
reasonableness of that kind of cap, which effectively requires the court to redistribute the
jury’s awards and thus ignores the jury’s perception of the actual degree of loss suffered
by each of the individual claimants, which may differ from one to another. They aver that
the legal impact of that is to improperly invade the jury’s fact-finding province and to
constitute an arbitrary and discriminatory classification. Each individual with identical
damages, they urge, must receive an identical recovery.9
As we indicated, there is no dispute between the parties 9 with respect to the
numerical calculations used in applying the cap. The jury awarded non-economic
damages to the wrongful death claimants in the total amount of $10 million – $4 million
(40%) for Mr. Dixon and $1.5 million (15%) for each of the four daughters. The
applicable cap under § 11-108(b)(2) to an individual claimant was $710,000. Applying
the 150% enhancement under § 11-108(b)(3)(ii) brought to aggregate cap to $1,065,000.
The court divided that cap proportionately to the jury awards – 40% (426,000) to Mr.
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Three years ago, in DRD v. Freed, 416 Md. 46, 5 A.3d 45 (2010), we had a similar
case, though not a similar argument, before us. DRD involved both a survivor’s action
and a wrongful death claim by the parents of a child who drowned in a pool managed by
DRD. The trial court granted summary judgment to DRD in the survivor’s action on the
ground that there was no direct evidence that the child suffered any pain or suffering in the
drowning process but allowed the wrongful death claim to go to the jury. The jury
awarded aggregate non-economic damages of $4,006,412 ($2,000,706 to each parent)
Applying § 11-108(b)(3)(ii), the trial court reduced the aggregate award to $1,002,500.
The Court of Special Appeals reversed the summary judgment entered in the survivor’s
action and affirmed the reduction of the wrongful death award. Freed v. D.R.D., 186 Md.
App. 477, 974 A.2d 978 (2009).
We granted certiorari on both issues and affirmed the judgment of the Court of
Special Appeals. In their brief in this Court, the Freeds acknowledged the precedential
effect of Murphy and Oaks and did not try to distinguish them. Their argument was that
those cases were wrongly decided and should be overturned. There was no discussion in
their brief of the issue presented here – the particular impact of the 150% cap when there
are multiple wrongful death claimants – and, because that issue was not argued, it was not
discussed in our Opinion. See Brief of Respondents/Cross-Petitioners in No. 104, Sept.
Term, 2009 (2009 WL 5196414).
Dixon and 15% ($159,750) to each daughter.
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We agreed that Murphy and Oaks controlled, and, despite contrary rulings in other
States, we saw no reason to overturn them. That sufficed to sustain the application of the
150% cap in that case, and, indeed, was the sole basis for sustaining that cap. What we are
asked to do here, in effect, is to reconsider that ultimate ruling on a ground not raised or
considered in that case – a new and different basis for examining the Constitutionality of
the 1994 amendments to § 11-108. We shall address the argument made by the plaintiffs
and not regard it as foreclosed by Freed, but our belief that 10 the 150% cap is not
unconstitutional will not change.
In deciding to apply a cap in wrongful death actions, the 1994 Legislature was
necessarily required to determine how the cap would be applied. In a normal personal
injury action based on injuries to more than one person, each plaintiff, whether suing
separately or joining with other plaintiffs, represents a separate case. Any judgments are
awarded separately, on an individual basis. The plaintiffs do not share in one gross award.
That is not the case with a wrongful death action. Only one wrongful death action
is permissible with respect to the death of a person. All beneficiaries seeking a recovery
are required to join in that action, and one award is made, which is divided among the
plaintiffs as directed by the verdict. See Cts. & Jud. Proc. Art. § 3-904 (1989 Repl. Vol.
10 In Crane v. Scribner, 369 Md. 369, 800 A.2d 727 (2002), we also had before us
a wrongful death action by multiple claimants in which the 150% cap was applied to
reduce the jury’s verdict. The issue there was whether the cap was applicable, not
whether it was valid, and we therefore did not consider the Constitutional validity of the
reduction. Id. at 375, n. 2, 800 A.2d at 730, n.2.
- 32 -
and 2006 Repl. Vol.). Unless that approach was to be changed, which the Legislature
declined to do, any cap had to take account of it.
Three bills were introduced into the 1994 session dealing with the cap on noneconomic
damages – SB 283, HB 661, and HB 511. All three provided both for an
increase in the cap and its extension to wrongful death actions. Although we are
principally concerned with SB 283, which was the one that was enacted, the proceedings
on the two House Bills influenced the ultimate text of SB 283. The Department of
Legislative Services bill files on all three bills are voluminous. There were many letters
and many formal reports on all sides of the issues – whether to impose any cap on
wrongful death awards and, if so, what the amount of the cap should be and whether it
should be retroactive.
As introduced, SB 283 increased the cap from $350,000 to $450,000, subject to the
annual increase of $15,000, and provided that, in a wrongful death action, that cap would
apply regardless of the number of claimants or beneficiaries who would share in the
award. House Bill 661 increased the cap over a three-year period, in increments of
$50,000, to $500,000. That aspect was prospective. It also provided, retroactively to
causes of action arising on or after June 1,1986 that were not yet adjudicated, that the
applicable cap applied as well in wrongful death actions, regardless of the number of
claimants. House Bill 511 took a different approach. As introduced, it would have
increased the cap incrementally to $750,000 and applied the cap on a per claimant basis in
- 33 -
both ordinary personal injury actions and wrongful death actions.
Following the hearing on the House Bills, in February 1994, several members of the
House Judiciary Committee requested the Medical Mutual Liability Insurance Society,
which provided medical malpractice insurance to most of the physicians in the State, to
provide estimates of the impact of individual caps on insurance premiums. The company
responded that, if there was a single cap (as provided for in HB 661), there would be a
need for an immediate overall rate increase of 15%. If there were to be two caps, there
would be an immediate need for a 30% increase in premiums, and, if there were to be three
caps, the immediate increase would need to be 40%. In a separate letter, the company
provided statistical support for those predictions. See letters from David Murray,
President and Chief Operating Officer of Medical Mutual, to the Chair of the House
Judiciary Committee on February 22 and February 28, 1994 in the Department of
Legislative Services Bill File for HB 511 (1994). Presumably as a result of that response,
HB 511 was amended in Committee to provide a single cap of 200% in multi-claimant
wrongful death actions, but neither of the House Bills was enacted.
Senate Bill 283 had its hearing in the Judicial Proceedings Committee several
weeks after the hearing on the House bills. The Committee was well aware of the two
House bills and the correspondence from Medical Mutual regarding the impact of separate
caps in wrongful death actions. Not only did some of the same people who testified on the
House Bills testify on the Senate Bill, but the letters from Medical Mutual to the Judiciary
- 34 -
Committee were provided to the Senate Committee as well. See Department of Legislative
Services Bill File for SB 283. The Judicial Proceedings Committee kept the individual cap
at $450,000 but added amendments (1) to increase the cap in wrongful death actions where
there was more than one claimant to 150% of the individual cap, and (2) if the jury verdict
exceeded that cap, to require the court to reduce the award proportionately. See Senate
Journal (1994) at 1910-11.
The bill passed the Senate in that form. The House of Delegates amended the bill
to conform with the amended version of HB 511 – to increase the individual cap to
$500,000 and the wrongful death cap where there was more than one claimant to 200% of
the individual cap. See House Journal (1994) at 2603-05. The Senate refused to concur in
the House amendments (Senate Journal at 3015-20), and the House refused to recede from
them (House Journal at 3015), so the bill was referred to a Conference Committee, which
agreed to an individual cap of $500,000 but otherwise rejected the House amendments and
thus kept the wrongful death cap at 150% of the individual cap. House Journal at 3354-
59. Both Houses concurred in the Conference Committee recommendations, and the bill
was enacted in that form.
This history dispels the plaintiffs’ contention that there was nothing before the
Legislature dealing with the effect of a cap on a lump sum wrongful death award, when
coupled with the jury’s not being advised of the cap. It is evident that the Legislature was
well aware of the various options that had been presented and the pros and cons of each,
- 35 -
and it reached a compromise. The legislative approach is a rational one that is entirely
consistent with the long-standing statutory requirement that all individuals seeking
damages for the death of a person must join in one action against the defendant and that
the amount recovered is divided among the beneficiaries in shares directed by the verdict.
The 150% cap does not intrude on the jury’s right to determine the relative degree
of harm suffered by the individual claimants; nor does it create irrational classifications
among the claimants. Section 11-108(b)(3)(ii) merely sets a limit on the gross amount of
non-economic damages that may be awarded by reason of one’s death which, under the
wrongful death law, is then divided proportionately as determined by the jury. That is
precisely what was done here. Each daughter, who was awarded 15% of the gross award
by the jury, received 15% of the net amount under the cap; the surviving husband received
40% – the percentage the jury determined he should receive. The fashioning of such a
cap in wrongful death actions is no more odious or unlawful than the imposition of caps in
non-death personal injury actions. We find no violation of equal protection, due process,
the right to jury trial, or Art. 19, and thus sustain the reductions made by the trial court.
DENIAL OF FORD’S MOTION FOR NEW TRIAL – RESTATED QUESTION (5)
Ford complains that the trial court abused its discretion in denying Ford’s motion
for new trial because (1) the jury’s verdict holding Ford liable to the plaintiffs was against
the weight of the evidence, and (2) that verdict was influenced by improper comments by
- 36 -
plaintiffs’ attorney during closing argument. This argument need not detain us long. We
have discussed in some detail the evidence presented at trial, and we have considered the
comments in question and the court’s conclusion that a curative instruction was sufficient.
We find no abuse of discretion in the court’s ruling.
JUDGMENT OF COURT OF SPECIAL APPEALS
REVERSED; CASE REMANDED TO THAT COURT WITH
INSTRUCTIONS TO AFFIRM THE JUDGMENTS
ENTERED IN FAVOR OF PETITIONERS DIXON, ET AL.
AGAINST RESPONDENT FORD MOTOR COMPANY
AND REVERSE THE JUDGMENT ENTERED IN FAVOR
OF RESPONDENT FORD MOTOR COMPANY ON ITS
CROSS-CLAIM AGAINST GEORGIA-PACIFIC; COSTS IN
THIS COURT AND COURT OF SPECIAL APPEALS TO
BE PAID BY RESPONDENT FORD MOTOR COMPANY.
- 37 -
IN THE COURT OF APPEALS OF
MARYLAND
No. 82
September Term, 2012
BERNARD DIXON, etc. et al.
v.
FORD MOTOR COMPANY
*Bell, C.J.
Harrell
Battaglia
Greene
Barbera
McDonald
Wilner, Alan M. (Retired,
specially assigned),
JJ.
Dissenting Opinion by Battaglia, J.,
which Bell, C.J., joins.
Filed: July 25, 2013
*Bell, C.J., participated in the hearing of
the case, in the conference in regard to its
decision and in the adoption of the
opinion, but he had retired from the
Court prior to the filing of the opinion.
I respectfully dissent and would affirm the excellent analysis and decision of the Court
of Special Appeals, Dixon v. Ford Motor Company, 206 Md. App. 180, 47 A.3d 1038
(2012).

Mesothelioma Trial Cross Examination of Defense Expert James Crapo

 One of the great  asbestos trial lawyers of our time is my good friend Bobby Hatten  from Newport News Virginia. Below is the cross of  one of the main asbestos defense trial witnesses who testifies all over the country. The cross-examination is extremely informative and displays skills required of an experienced mesothelioma trial lawyer.

 

                                                                   114

 3   

 

 4                   CROSS-EXAMINATION

 

 5   BY MR. HATTEN:

 

 6        Q.      Doctor, when we began you told us that you

 

 7   were not an occupational disease physician, correct?

 

 8        A.      That’s correct.

 

 9        Q.      All right.  But there is a doctor that you,

 

10   in fact, hired at the Jewish hospital where you work

 

11   who is a specialist in occupational disease; isn’t that

 

12   correct?

 

13        A.      Yes.

 

14        Q.      And her name is Dr. Brigitte Gottschall; is

 

15   that right?

 

16        A.      That’s right.

 

17        Q.      And Dr. Brigitte Gottschall is a

 

18   board-certified specialist in four areas:  Pulmonary

 

19   medicine, internal medicine, critical care, and

 

20   occupational medicine, right?

 

21        A.      Yes.

 

22        Q.      And she has published articles in the

 

23   scientific literature that — she’s published articles

 

24   in the scientific literature that mesothelioma can

 

25   occur from any type of asbestos?  You’re aware that

 

 

                                                                   115

 1   she’s published that in the peer-reviewed scientific

 

 2   literature?

 

 3        A.      Yes, I’m aware of that.

 

 4        Q.      And she has published that it is the

 

 5   totality of asbestos exposure that causes mesothelioma;

 

 6   is that right?

 

 7        A.      Yes.  I’m aware of that.

 

 8        Q.      And, in fact, this is her article:

 

 9   Occupational and Environmental Thoracic Malignancies.

 

10                And on page 195 of this article, written by

 

11   your colleague that you hired, she says that, “An

 

12   unknown proportion of mesotheliomas may have had

 

13   previous low level or bystander asbestos exposure.

 

14   Mesothelioma may occur after exposure to any type of

 

15   asbestos.”

 

16                That’s what your colleague published; is

 

17   that correct?

 

18        A.      Yes.  This is correct.

 

19                MR. BURNS:  Can I have those two, please?

 

20   And the other stuff.

 

21                Thank you.

 

22   

 

23   BY MR. HATTEN:

 

24        Q.      And your colleague, like you — or unlike

 

25   you.  You’ve never testified for a mesothelioma victim

 

 

                                                                   116

 1   in a court, have you?

 

 2        A.      Not for a person with mes — I’ve not been

 

 3   asked to.  I have not done that.

 

 4        Q.      She has, though, right?

 

 5        A.      I believe so.  I have not seen her

 

 6   testimony.

 

 7        Q.      Let me read to you an excerpt from her

 

 8   testimony, beginning at line 23:

 

 9                “Based on the various exposures that Ken

 

10   had, is there any way to say that one exposure did it

 

11   and another did not contribute to the cancer?”

 

12                And her answer is, “No.  There is no way of

 

13   picking out one exposure as being causative for

 

14   mesothelioma.  The way we think about that in the

 

15   medical community is really it’s the cumulative

 

16   exposure to asbestos that leads — that determines the

 

17   risk for developing cancer such as pleural

 

18   mesothelioma.  It’s the totality of the exposure.  It’s

 

19   the cumulative exposure.  Each little bit adds to the

 

20   risk.”

 

21                She disagrees with you, right?

 

22        A.      I’m not sure that she really would if she

 

23   were talking in the same context because the context

 

24   this is being asked, the data that supports this

 

25   concept comes from people that have very high-dose

 

 

                                                                   117

 1   exposures, and if you have multiple types of high-dose

 

 2   exposures, such as Mr. Herman did on different ships,

 

 3   different places, I can’t pick one of those out and

 

 4   say, This boiler caused it and that boiler room didn’t

 

 5   cause it.

 

 6                And I agree with that concept when you

 

 7   speak of it in those terms.  I can’t — among the

 

 8   substantial exposures, I can’t say which one did and

 

 9   which one didn’t.

 

10                But it’s interesting that nobody, including

 

11   Brigitte, would argue that the ambient air contributed

 

12   to it.  So by definition they’re excluding that one.

 

13   If you think what I’m doing — the low levels –

 

14        Q.      I don’t have a question pending, Doctor.

 

15        A.      Okay.

 

16        Q.      Your colleague said that a dose-response

 

17   relationship is — “Yes, we believe that cumulative

 

18   asbestos exposure contributes to the risk of developing

 

19   the disease.  Nobody has been able to demonstrate a

 

20   threshold.”

 

21                MR. BURNS:  Mr. Hatten, don’t go to the

 

22   next sentence with the number because you don’t want to

 

23   talk about the number.

 

24   

 

25   

 

 

                                                                   118

 1   BY MR. HATTEN:

 

 2        Q.      So I think when, you know, a specific

 

 3   number — wait.  She doesn’t say a number.

 

 4                A specific number above which asbestos

 

 5   fiber exposure developing versus the low, which you

 

 6   won’t, there is no low which exists, according to your

 

 7   colleague.  And this person was a brake mechanic.  So

 

 8   she disagrees with your opinion about brakes, she

 

 9   disagrees with your opinion about cumulative, and she

 

10   disagrees with your opinion about low exposures; is

 

11   that correct.

 

12        A.      I haven’t really discussed this with her,

 

13   and I think that if you were really talking about

 

14   ambient air and the really low levels, I don’t think

 

15   she would disagree with me.

 

16        Q.      Did I ask you about ambient air?

 

17        A.      Well, the levels of exposure you’re talking

 

18   about are below ambient air.

 

19        Q.      Did I ask you about ambient air?

 

20        A.      No.

 

21        Q.      Thank you.

 

22                And on page 29 she states, “There is

 

23   certainly a background level that people have been

 

24   exposed to, but the occupational exposure is typically

 

25   way above that.”

 

 

                                                                   119

 1                Again, your colleague disagrees with you?

 

 2        A.      This is exactly — now you have asked me

 

 3   about ambient air.  And this is exactly what I’ve been

 

 4   saying, so leave this up for a second.

 

 5                She says there is certainly a background

 

 6   level.  Put it back there so I can discuss it.

 

 7                There is certainly a background level.

 

 8   That’s ambient air.  And then she goes on to say, but

 

 9   the occupational level is typically way above that.

 

10                Now, I would agree if you have occupational

 

11   levels way above that, it’s a problem.  She and I don’t

 

12   disagree.  But it is when you have occupational levels

 

13   that are below that I don’t think there is any evidence

 

14   they cause disease.  And that’s why I think if you

 

15   really got Brigitte in the courtroom and we sat next to

 

16   each other, you wouldn’t find that much disagreement,

 

17   although I think she is — she may call some disease

 

18   where I wouldn’t, but fundamentally we’re coming from

 

19   the same rough position.

 

20        Q.      In that chart you just showed the jury, for

 

21   brake exposures you showed zero risk?

 

22        A.      That’s correct because –

 

23        Q.      And this is a brake exposure occupational

 

24   case.

 

25        A.      So note that.  When she reaches that

 

 

                                                                   120

 1   conclusion, she reaches it with no data.  There are

 

 2   only seven good case-controlled epidemiology studies

 

 3   for brake mechanics and mesothelioma.  All seven say

 

 4   that there is no elevated risk for mesothelioma.  And

 

 5   obviously she didn’t consider that or she was talking

 

 6   about that as the only exposure in this case.

 

 7        Q.      Or there was information she knew that you

 

 8   don’t.

 

 9        A.      I don’t think so because I think I’ve read

 

10   this literature probably more thoroughly than she has.

 

11        Q.      And then you said, “I believe all asbestos

 

12   fibers can cause…” –

 

13                MR. BURNS:  She said that.

 

14   

 

15   BY MR. HATTEN:

 

16        Q.      She said, “Yes, I believe…” — the

 

17   question was, “Do you have an opinion as to the

 

18   carcinogenicity — that means the capacity to cause

 

19   cancer — of each of these types of fibers that you

 

20   just mentioned?”

 

21                And she says, “I believe all of them can

 

22   cause mesothelioma.”

 

23                “And that would include the fiber

 

24   chrysotile?”

 

25                She said, “Correct.”

 

 

                                                                   121

 1                So, again, your colleague disagrees with

 

 2   you?

 

 3        A.      Again, I don’t — you’ve left dose out of

 

 4   the statement.  Remember, I said that I couldn’t rule

 

 5   out chrysotile as a cause at high dose.

 

 6                So when you — you’ve — they’ve asked the

 

 7   question in such a way that you’ve removed dose from

 

 8   the question to make it look like there is no apparent

 

 9   difference.

 

10        Q.      Does she mention high dose?

 

11        A.      That’s what I mean.  We’re not discussing

 

12   dose here.

 

13                Now, I think she may be more willing to say

 

14   that lower levels will cause it, but she’s not going to

 

15   argue that ambient levels would cause it.  And she has

 

16   absolutely no data to say that brake mechanics develop

 

17   this disease because every single study of brake

 

18   mechanics in five different countries have shown that

 

19   they have no increased risk of mesothelioma.

 

20        Q.      So the doctor who is board certified in

 

21   occupational medicine disagrees with the doctor who is

 

22   not; is that what’s going on here?

 

23        A.      I don’t think so.

 

24                MR. BURNS:  Objection to form.

 

25   Argumentative.

 

 

                                                                   122

 1                THE WITNESS:  I think you’re creating more

 

 2   disagreement than really there is.

 

 3                THE COURT:  Overruled.

 

 4                THE WITNESS:  But Brigitte is a good

 

 5   colleague and good friend and I did recruit her to

 

 6   National Jewish and I think she is a superb physician.

 

 7   

 

 8   BY MR. HATTEN:

 

 9        Q.      I noticed you talked about ambient air, and

 

10   I want to talk about that for just a minute.

 

11                You’re familiar with this book, Asbestiform

 

12   Fibers, published by Nicholson, 1984?  It’s actually

 

13   published by the National Research Council.

 

14        A.      I’ve seen it before, but I haven’t read it

 

15   for years, so I couldn’t say I’m really familiar.

 

16        Q.      You’re aware of the fact that in this book

 

17   they have a list of ambient air values?

 

18        A.      Yes.

 

19        Q.      And that’s based upon studying that subject

 

20   all over the United States, correct?

 

21        A.      It does.  If you’ll get the whole book,

 

22   you’ll find they have a miscalculation — an error in

 

23   their calculation of dose on that.  When you look at

 

24   the footnotes of that page and refer back to the

 

25   original studies, there is a multifold error in their

 

 

                                                                   123

 1   calculation of dose in that study.

 

 2        Q.      Well, in the book this is what they report.

 

 3   And you said the typical East Coast city is like New

 

 4   York, but this study shows you — let me go back.

 

 5                You said in the number that you put up that

 

 6   the number is typical for New York City, .003, and that

 

 7   in other cities around the country these numbers of 01

 

 8   and 02 are similar.

 

 9                Well, in fact, your number for New York

 

10   City left off a zero, and it actually — it should be

 

11   .0004, and in — but we don’t live in New York City,

 

12   and neither did Mr. Herman live in New York City.  For

 

13   the air of most cities in the United States, it’s four

 

14   zeros and a five.  That’s five-ten-thousandths.  Is

 

15   that right?

 

16        A.      No.

 

17        Q.      That’s what the chart says, isn’t it?

 

18        A.      That’s what the chart says, but I can

 

19   explain the error in the chart if you’d like.

 

20        Q.      And the chart says that the outdoor

 

21   controls for average cities around the country — here

 

22   are the numbers.  They’re all a lot lower than what was

 

23   on your chart, right?

 

24        A.      That’s right.  This chart does show

 

25   lower — there is no question.  I considered this chart

 

 

                                                                   124

 1   very carefully.  If you’ll notice, the data I gave for

 

 2   New York City came from the Agency for Toxic Substance

 

 3   and Disease Registry, a U.S. government agency that

 

 4   published it about ten years ago.

 

 5                This, from the 1980s, has a major error in

 

 6   how you convert — they use an old, old counting method

 

 7   that didn’t count fibers per cc but rather counted it

 

 8   by an old method.  And the method of converting from

 

 9   the old method of counting to the proper new method of

 

10   counting had an error in it.

 

11                And you can find that by looking at the

 

12   tables and going back to the original publications.

 

13   But that’s why this one publication is out of — isn’t

 

14   validated by all the recent people that have looked at

 

15   this, including government agencies.  So that the –

 

16   you know, it’s unfortunate that that one 1980-something

 

17   publication doesn’t have correct data in it.

 

18        Q.      This is 2001.  And this is the very article

 

19   you’re talking about, right?

 

20        A.      No.  The book –

 

21        Q.      From Toxicology?

 

22        A.      No.  The ATSDR?

 

23        Q.      Yes.

 

24        A.      Nicholson’s report.

 

25        Q.      I’m talking about the new one, the ASDC –

 

 

                                                                   125

 1   the one you just mentioned.

 

 2        A.      Well, the 2002 report, which is not this

 

 3   one, is the one where they calculated the — and this

 

 4   is true.  The ambient air levels –

 

 5        Q.      May I have the document back, please?

 

 6        A.      Yes.

 

 7                MR. BURNS:  What do you have?

 

 8                MR. HATTEN:  I have the Toxicology Profile

 

 9   for Asbestos, published in 2001 by the United States

 

10   Department of Health and Human Services, Agency for

 

11   Toxic Substances and Diseases.

 

12   

 

13   BY MR. HATTEN:

 

14        Q.      And in this study they say, “Typical air

 

15   fibers in ambient air are four zeros and a 1 to three

 

16   zeros and a 1.  And, again, that’s a lot lower than

 

17   what was on your chart, isn’t it?

 

18        A.      Again, that one is, but if you look at my

 

19   chart — put my chart back up.

 

20        Q.      Are these wrong, too?

 

21        A.      Excuse me.  Put my chart up.

 

22        Q.      Are these wrong?

 

23                THE COURT:  Whoa, whoa, whoa.  All right.

 

24   Time out.  Time out.

 

25                Okay.  He asks the questions.  You answer

 

 

                                                                   126

 1   them.  Don’t tell him what to do.

 

 2   

 

 3   BY MR. HATTEN:

 

 4        Q.      Are these wrong, too?

 

 5        A.      They’re not wrong.  For the reasons — if

 

 6   you look at my chart, there are regions in the country

 

 7   that were that low.  And that’s correct, you can find

 

 8   numbers like that.  I had numbers lower than that in my

 

 9   chart.

 

10        Q.      This –

 

11        A.      But the –

 

12        Q.      This says typical.  The typical — the

 

13   typical air concentration.

 

14        A.      Yes.  Typical.  But you have to look at all

 

15   the measurements.  We’re looking at the range.  And the

 

16   report that I gave you from the ATSDR from New York

 

17   City came a year later than this one that gave New York

 

18   City-specific.  So what –

 

19        Q.      Are we in New York City?

 

20        A.      No.

 

21        Q.      Thank you.

 

22                Another doctor that works with you at the

 

23   Jewish hospital is Dr. Cecile Rose.  Are you familiar

 

24   with her?

 

25        A.      Yes.

 

 

                                                                   127

 1        Q.      And, again, unlike you, she practices

 

 2   occupational disease medicine and is board certified in

 

 3   that, correct?

 

 4        A.      That’s correct.

 

 5        Q.      All right.  Now, Dr. Rose, in fact –

 

 6   

 

 7                 (An off-the-record discussion between Mr.

 

 8                Hatten and Mr. Burns took place.)

 

 9   

 

10                MR. HATTEN:  May I use PowerPoints?  He

 

11   used PowerPoints.

 

12                MR. BURNS:  What are you using?

 

13                MR. HATTEN:  I’m saying what…

 

14                MR. BURNS:  I agreed to one person putting

 

15   her opinions on, using the articles.

 

16                MR. HATTEN:  I’m not using a transcript.

 

17   Just listen to the questions.

 

18                THE COURT:  Wait a minute.  I think he

 

19   objected to the question.

 

20   

 

21   BY MR. HATTEN:

 

22        Q.      I don’t have a question.

 

23                Do you know Dr. Cecile Rose?

 

24        A.      Yes, I do know Cecile.

 

25        Q.      And she is the head of the occupational

 

 

                                                                   128

 1   medicine division at National Jewish?  She’s the head

 

 2   of the department, correct?

 

 3        A.      It’s a division.  That’s correct.

 

 4        Q.      Okay.  And Dr. Cecile Rose, in fact, signed

 

 5   a — as a person on an article published in the medical

 

 6   journals, called the International Journal of

 

 7   Environmental Health?  She signed on to an article

 

 8   that — about asbestos causing mesothelioma?

 

 9                THE COURT:  Are you going to show him the

 

10   article?

 

11                MR. BURNS:  Your Honor, I object to this.

 

12   What this is is an amicus brief that was filed with a

 

13   court in Michigan and reproduced in a journal as an

 

14   example of what scientists are saying in court.  It’s a

 

15   legal amicus brief, not a scientific journal.

 

16                MR. HATTEN:  This is a medical –

 

17                THE COURT:  Do it the old way.  Just read

 

18   it to him and go from there.

 

19   

 

20   BY MR. HATTEN:

 

21        Q.      This — he calls it an amicus brief.  It

 

22   was republished in a medical journal, correct?  Yes or

 

23   no is the answer.

 

24        A.      It was republished in a journal.  It’s not

 

25   a very good journal, but yes.

 

 

                                                                   129

 1        Q.      And this report is endorsed by

 

 2   approximately 50 doctors, correct?

 

 3        A.      There’s about 50 signatures to it, yes.

 

 4        Q.      And the head of the occupational disease

 

 5   section of your hospital signed on as a signatory of

 

 6   this article; isn’t that correct?

 

 7        A.      Her name is listed as a signature.

 

 8        Q.      All right.  And in this article these 50

 

 9   doctors say, “There is general agreement among

 

10   scientists and health agencies that exposure to any

 

11   type of asbestos, serpentine, chrysotile, or amphibole,

 

12   can increase the likelihood of lung cancer,

 

13   mesothelioma, and pleural disorders.”

 

14                Do you see that?

 

15        A.      Yes.

 

16        Q.      All right.  And in this report they say

 

17   that, “In reaching the conclusion that chrysotile

 

18   causes asbestos mesothelioma, scientists properly

 

19   considered numerous accepted sources of scientific

 

20   data, including epidemiological studies, case reports,

 

21   and a series of case reports, controlled animal

 

22   experiments, and toxicology studies.”

 

23                That’s what they said, correct?

 

24        A.      That’s correct.

 

25        Q.      And this was an article about someone who

 

 

                                                                   130

 1   got mesothelioma from exposure to chrysotile in brakes,

 

 2   correct?

 

 3        A.      I don’t recall that.  That’s an amicus

 

 4   brief written to the Michigan Supreme Court on a case,

 

 5   but I don’t recall the details of the case.

 

 6        Q.      The — you’ve read this, haven’t you?

 

 7        A.      I have, but –

 

 8        Q.      I want to refresh –

 

 9        A.      – I wasn’t trying to remember the case

 

10   details.

 

11        Q.      You remember that it was about the claim of

 

12   the asbestos brake manufacturers that it didn’t cause

 

13   mesothelioma, and this brief was written and signed by

 

14   all these doctors to say that chrysotile does cause

 

15   mesothelioma in brakes?  That was the purpose of this

 

16   brief, correct?

 

17        A.      I think it is a brief about a case

 

18   involving brake workers, yes.  And they’re trying to

 

19   argue to the Michigan Supreme Court, who is holding

 

20   that on appeal.

 

21        Q.      And in this brief that these 50 doctors

 

22   signed, and that Cecile Rose signed, they say, “There

 

23   is no safe level of exposure to asbestos.  Even

 

24   exposure at current regulatory levels results in excess

 

25   mesotheliomas.  Accordingly, the consensus…” — now,

 

 

                                                                   131

 1   a consensus is a majority, correct?

 

 2        A.      Sort of, yes.

 

 3        Q.      “…the consensus of the scientific

 

 4   community is that occupational or

 

 5   paraoccupational…” — that means like housewives,

 

 6   bystanders, people that are not directly working with

 

 7   the product, correct?

 

 8        A.      Yes.

 

 9        Q.      – “…to asbestos, even brief or low-level

 

10   exposures, must be considered causal in an individual

 

11   with mesothelioma.”

 

12                That’s what they said, right?

 

13        A.      I don’t agree with it, but that’s what they

 

14   said.

 

15        Q.      And the people that signed on — and one

 

16   other quote from this article.  “The mainstream

 

17   scientific community has long recognized and continues

 

18   to recognize today that there is no safe level of

 

19   exposure to asbestos.  Excessive cancer risk has been

 

20   demonstrated at all fiber concentrations.  Evaluation

 

21   of all available human data provides no evidence for a

 

22   threshold for a safe level of asbestos exposure.”

 

23                And, again, you don’t agree with that?

 

24        A.      I have given you data that doesn’t agree

 

25   with it, but, yes, that’s what they said.

 

 

                                                                   132

 1        Q.      And the people that signed this were not

 

 2   just 50 doctors off the street; these are people from

 

 3   all over the world who specialize in epidemiology and

 

 4   occupational lung disease; isn’t that correct?

 

 5        A.      They come from a variety, many of them from

 

 6   prestigious places.  And you’re correct that there is a

 

 7   prestigious list of people that signed this.

 

 8                I think it’s an advocacy document.  I can’t

 

 9   otherwise explain why they did that.

 

10        Q.      All of these 50 doctors are advocating

 

11   what’s in this — in this statement?

 

12        A.      I don’t know that they all — they have

 

13   their names attached to it, but I don’t know what level

 

14   each — I would be embarrassed to have my name on that.

 

15        Q.      Now –

 

16        A.      I don’t know what level of consent these

 

17   people actually gave, but their names were clearly

 

18   published with it.

 

19        Q.      Now, Dr. Dement has conducted epidemiology

 

20   of people working in chrysotile textile mills in South

 

21   Carolina, correct?

 

22        A.      That’s correct.

 

23        Q.      And he concludes that chrysotile causes

 

24   mesothelioma, from his research, correct?

 

25        A.      I believe that he does.

 

 

                                                                   133

 1        Q.      And Dr. Ronald Dodson, he’s a man that’s

 

 2   written a book on asbestos, and he concludes that short

 

 3   asbestos fibers contribute to cause mesothelioma,

 

 4   doesn’t he?

 

 5        A.      I think he said that.  That’s clearly

 

 6   outside the mainstream and not the consensus in the

 

 7   field.

 

 8        Q.      We have people from international places on

 

 9   here.  We have Arthur Frank.  Arthur Frank is from

 

10   Drexel.  And he was with at one time the Mount Sinai

 

11   Hospital in New York.  Correct?

 

12        A.      That’s correct.

 

13        Q.      He studied under Dr. Selikoff, who was one

 

14   of the pioneers in discovering information about

 

15   mesothelioma?

 

16        A.      That’s true.

 

17        Q.      And so we have other people over here.

 

18   Peter Infante, he’s an epidemiologist; is that correct?

 

19        A.      Yeah.  I don’t know him.

 

20        Q.      And we have these folks from — we have

 

21   them from India, we have them from the University of

 

22   Massachusetts, we have Drexel, we have people from all

 

23   over the United States, the Environmental and

 

24   Occupational Health Graduate Schools of Public Health.

 

25   We have professors of pathology.  We have the

 

 

                                                                   134

 1   International Center for Occupational Disease in

 

 2   California.  We have Dr. Landergan, another person that

 

 3   came out of Mount Sinai in New York.  We have Dr. Lee.

 

 4   He’s from Australia.  He’s one of the most well –

 

 5   well, he’s an epidemiologist in Australia, correct?

 

 6        A.      I don’t know him personally.

 

 7        Q.      You know his writing, don’t you?

 

 8        A.      Actually, I don’t.

 

 9        Q.      You don’t know he’s an epidemiologist from

 

10   Australia?

 

11        A.      I don’t know Dr. Lee’s work.

 

12        Q.      Okay.  You haven’t seen his book in

 

13   publications about mesothelioma?

 

14        A.      I don’t think I’ve seen that one.

 

15        Q.      Others from Mount Sinai.  A Dr. Mark.  Dr.

 

16   Mark is Massachusetts General, Harvard.  We have people

 

17   from Scotland.  And this is just the first page.

 

18                Let’s see what’s on the top of the next

 

19   page, because I think the jury might like to know.

 

20                Who is David Michaels?

 

21        A.      I only know him by reputation, so I don’t

 

22   know.

 

23        Q.      He’s the director of OSHA for the United

 

24   States of America, isn’t he?

 

25        A.      I haven’t paid attention.  If he’s current

 

 

                                                                   135

 1   director, that’s fine.

 

 2        Q.      We have University of Colorado.  We have

 

 3   Christine Oliver at Cambridge.  That’s another –

 

 4   Harvard.  She’s a Harvard doctor.

 

 5                Italy.  Canada.  As far away as Chile.

 

 6   Boston University.

 

 7                And the director of occupational disease in

 

 8   your hospital signed on as a signatory of this document

 

 9   with all those people, correct?

 

10        A.      That’s correct.

 

11        Q.      In the 1980s and 1990s OSHA and NIOSH have

 

12   all studied the capacity of different asbestos fibers

 

13   to cause mesothelioma, correct?

 

14        A.      They’ve done — they’ve had committees that

 

15   have looked at that, yes.

 

16        Q.      And they’re committees of doctors,

 

17   epidemiologists, and people that have done animal

 

18   research like yourself, correct?

 

19        A.      That’s correct.

 

20        Q.      Okay.  And in 1986 they said, “To summarize

 

21   the data, human epidemiological studies have suggested

 

22   that amphibole is associated with a greater risk than

 

23   exposure to chrysotile.  No clear differential risk has

 

24   been demonstrated.  Animal experiments have indicated

 

25   that chrysotile is a more potent carcinogen than

 

 

                                                                   136

 1   amphiboles.”

 

 2                That’s what they found in 1986?

 

 3        A.      I can explain that if you like, but that’s

 

 4   what –

 

 5        Q.      Did they find that in 1986?

 

 6        A.      That’s what they reported.

 

 7        Q.      That’s what they reported.

 

 8        A.      They didn’t do the work.  That’s what their

 

 9   interpretation of the data is.

 

10        Q.      They said that, “OSHA agrees that the

 

11   epidemiological and animal evidence taken together

 

12   failed to establish a differential risk.  Accordingly,

 

13   OSHA has recognized all types of asbestos as having the

 

14   same carcinogenic potential.”

 

15                That’s what they said, correct?

 

16        A.      That’s correct.

 

17        Q.      And they also said, “The suggestion that

 

18   there are dramatic differences between the different

 

19   asbestos varieties has no basis in fact.”

 

20                And then they said, “Mesothelioma has been

 

21   documented in a variety of nonoccupational

 

22   circumstances, including families.  Notable family

 

23   contact cases can be seen with exposure to chrysotile,

 

24   amosite, and crocidolite.  Relative to the risk at

 

25   work, there appears to be little difference in the

 

 

                                                                   137

 1   family contact risk by fiber type.  Animal studies

 

 2   substantiate and suggest varieties of asbestos should

 

 3   be considered equally potent.”

 

 4                So in 1986 the government certainly

 

 5   disagreed with what you’ve said today, correct?

 

 6        A.      It’s not quite that simple, but, yes, they

 

 7   wrote — the statements they have on the face are

 

 8   substantially different.  If you get out the studies

 

 9   that they looked at and actually look at the studies

 

10   and the tables, their results actually support what I

 

11   told you.  Take a few minutes to go through that.  But

 

12   they only looked at six studies.  And the — actually,

 

13   four for here and six with the EPA.

 

14                Having said that, you correctly stated what

 

15   they wrote in that document.

 

16        Q.      Since that time lots of other government

 

17   agencies have also looked at this issue about whether

 

18   chrysotile causes mesothelioma.  This is in evidence.

 

19   And all these people have concluded — all these

 

20   different government agencies have concluded that

 

21   chrysotile causes mesothelioma, correct?

 

22        A.      That is correct.

 

23        Q.      In fact, no government agencies have

 

24   concluded that chrysotile does not cause mesothelioma?

 

25        A.      From a regulatory position, no one has

 

 

                                                                   138

 1   taken that regulatory position.

 

 2        Q.      And so it’s your opinion that all these

 

 3   scientists at OSHA misinterpreted the data and that you

 

 4   have divined that they are all wrong?

 

 5                MR. BURNS:  Object to form.  Argumentative.

 

 6                THE COURT:  Overruled.  Go ahead.

 

 7                THE WITNESS:  I don’t think you can

 

 8   conclude that every scientist there agreed with that

 

 9   statement.  That’s what they taught, first of all.  So

 

10   I don’t necessarily agree — I don’t necessarily

 

11   disagree with all of the scientists.  And I don’t

 

12   disagree with their facts that they used to evaluate

 

13   it.  But the — I do disagree with the final

 

14   conclusions on this part of it.  And I think these are

 

15   conservative regulatory positions, for which I actually

 

16   agree with that.  From a conservative point of view,

 

17   and taking a government position on looking at the

 

18   studies they looked at, they made a very conservative

 

19   and an appropriate decision.

 

20   

 

21   BY MR. HATTEN:

 

22        Q.      All right.

 

23        A.      That part I do agree with.

 

24        Q.      The World Health Organization is not a

 

25   regulatory, body; is that correct?

 

 

                                                                   139

 1        A.      Not formally.

 

 2        Q.      The World Health Organization is a group of

 

 3   scientists who are from all over the world who study

 

 4   different substances to determine if they cause

 

 5   disease, correct?

 

 6        A.      I think the World Health Organization is a

 

 7   political organization, part of the — you know, part

 

 8   of the United Nations, but it then engages groups that

 

 9   include scientists from around the world.

 

10        Q.      And the World Health Organization concluded

 

11   that, “Exposure to chrysotile poses increased risk for

 

12   asbestosis, lung cancer, mesothelioma, in a

 

13   dose-dependent manner.  No threshold has been

 

14   identified for carcinogenic risk.”

 

15                Am I correct that that was their conclusion

 

16   in studying the world literature about chrysotile?

 

17        A.      I don’t know — I don’t — first of all,

 

18   when you read what they did, there is no evidence they

 

19   did a thorough study of the world literature, but that

 

20   is correctly what they said in that book.

 

21        Q.      Well, they published a 145-page book that

 

22   has about 300 references in it.  What do you think they

 

23   did?

 

24        A.      There is about 10,000 references already

 

25   written on that.  So there is no evidence they did an

 

 

                                                                   140

 1   exhaustive — that group doesn’t always have a track

 

 2   record of having thoroughly looked at the –

 

 3        Q.      You disagree with the World Health

 

 4   Organization?

 

 5        A.      I’m only saying that this doesn’t represent

 

 6   a complete, exhaustive search of the literature.

 

 7   You’ve read their final conclusion, which I think from

 

 8   a government or regulatory position it’s not

 

 9   inappropriate to be conservative.  But it misses a lot

 

10   of facts about what is actually taking place.

 

11        Q.      You worked for NIOSH, right?

 

12        A.      No.

 

13        Q.      I thought you were employed at NIOSH for

 

14   some period of time.

 

15        A.      No.  That’s not correct.

 

16                MR. BURNS:  NIH.

 

17   

 

18   BY MR. HATTEN:

 

19        Q.      Okay.  You didn’t work at NIOSH.

 

20                NIOSH is the scientific arm of OSHA,

 

21   correct?  They do the scientific investigation for

 

22   OSHA?

 

23        A.      That’s one way to interpret it, yes.

 

24        Q.      And they’re the ones that make scientific

 

25   recommendations to OSHA, correct?

 

 

                                                                   141

 1        A.      They do do that, yes.

 

 2        Q.      And they’re the ones that review the

 

 3   scientific literature about different substances, like

 

 4   asbestos, correct?

 

 5        A.      Yes.  That’s one of the things they do.

 

 6        Q.      And in 1980 NIOSH published that,

 

 7   “Chrysotile is as likely as crocidolite and other

 

 8   amphiboles to induce mesothelioma.  And human

 

 9   occupational exposure to all commercial types of

 

10   asbestos, both individually and various combinations,

 

11   have been associated with high rates of asbestosis,

 

12   lung cancer, and mesothelioma.”

 

13        A.      You didn’t read that correctly.  That

 

14   sentence says, “Chrysotile is as likely as crocidolite

 

15   and other amphiboles to induce mesothelioma after

 

16   intrapleural injection.”  That’s not after inhalation.

 

17        Q.      You’re exactly right.  So that’s in animal

 

18   studies?

 

19        A.      Yes.  But, no, it’s very — when you inject

 

20   the fiber into the pleural space, it gets around all

 

21   the defense pathways for clearance and it puts a large

 

22   number of large fibers in that space immediately.  And

 

23   when you do that, you can create mesotheliomas with

 

24   almost any lung fiber substance, including Fiberglas,

 

25   which doesn’t cause it.  So that method doesn’t test

 

 

                                                                   142

 1   the hypothesis.

 

 2        Q.      But the next sentence, Doctor, is that

 

 3   “Human occupational exposures to all types of asbestos

 

 4   individually and in various combinations have been

 

 5   associated with high rates of asbestosis, lung cancer,

 

 6   and mesothelioma.”

 

 7                Now, that’s not injecting it into their

 

 8   pleura, is it?

 

 9        A.      But that’s also –

 

10        Q.      Is it?

 

11        A.      No.  That –

 

12        Q.      Is it?

 

13        A.      That’s by inhalation.

 

14        Q.      Is that injecting it into their pleura?

 

15        A.      No, it’s not.

 

16        Q.      Thank you.

 

17                More recently, in the 2001 Toxicology

 

18   Profile for Asbestos, published by our government,

 

19   Department of Public Health, they say that, “Despite

 

20   the dispute in the scientific literature concerning the

 

21   issues, the U.S. and international agencies concur

 

22   exposure to any type of asbestos, including chrysotile,

 

23   can cause asbestosis and mesothelioma.”

 

24                That’s 2001.  Correct?

 

25        A.      Yes.

 

 

                                                                   143

 1        Q.      That’s what our government says?

 

 2                All right.  Now, in 2012, just this past

 

 3   year, the World Health Organization revisited this

 

 4   issue about whether or not all forms of asbestos cause

 

 5   mesothelioma, correct?

 

 6        A.      That’s correct.

 

 7        Q.      And, again, they concluded that all the

 

 8   types of asbestos cause mesothelioma, all forms are

 

 9   carcinogenic to humans:  Tremolite, amosite,

 

10   chrysotile.  And this is 2012, correct?

 

11        A.      That’s correct.  You read that correctly.

 

12        Q.      Now, this 2012 monograph was produced by

 

13   epidemiologists, correct?

 

14        A.      Yes.  There were epidemiologists on that

 

15   panel.

 

16        Q.      And scientists from all over the world?

 

17        A.      I don’t remember exactly where they all

 

18   came from, but that’s generally correct.

 

19        Q.      And they also concluded that all forms of

 

20   asbestos, including chrysotile, were genotoxic,

 

21   correct?

 

22        A.      I believe they did include that in the

 

23   conclusion.

 

24        Q.      And genotoxic means it causes cancer by

 

25   impairing the DNA; is that correct?

 

 

                                                                   144

 1        A.      It means it can create changes in genes.

 

 2   That’s done — it’s important to note that the

 

 3   genotoxic experiments, which is done on all drugs and

 

 4   all materials, is done in a culture dish.  And you’re

 

 5   dealing with very high exposure levels in and directly

 

 6   on the cells and looking at DNA changes.  That doesn’t

 

 7   mean that you get that same change in the human body at

 

 8   lower doses.

 

 9                So you have to be careful.  It’s classified

 

10   as that, but the — but then you have to ask whether it

 

11   actually occurs with that dose under a certain

 

12   condition of exposure.  And that’s true for all drugs

 

13   and it’s true for all these fiber types.

 

14                So using that technology, you would

 

15   classify all — you’d — actually, you’d classify every

 

16   lung fiber as a genotoxic agent.

 

17        Q.      When it is a genotoxic agent, an agent that

 

18   causes cancer by impairing the DNA, what does the

 

19   government say about what the shape of the

 

20   dose-response curve is?

 

21        A.      The conservative regulatory position is to

 

22   make a linear one, but, in fact, all genotoxic agents

 

23   have a curvilinear core when you actually do the work

 

24   on it.

 

25                For example, I do a lot of work with drug

 

 

                                                                   145

 1   development and the FDA.  And there are many genotoxic

 

 2   drugs, but there is levels that are safe for them to

 

 3   use that are not genotoxic.  And you have to

 

 4   understand –

 

 5                THE COURT:  He’s just on automatic up here.

 

 6   Did you want to participate?

 

 7                MR. HATTEN:  I know.  I haven’t got any

 

 8   question pending.  I know he likes to talk.

 

 9                THE COURT:  You two are over there.  But we

 

10   were having fun over here.

 

11   

 

12   BY MR. HATTEN:

 

13        Q.      I wondered if you’d stop.

 

14                If it is a genotoxic carcinogen, the

 

15   presumption is that it is a linear dose curve, correct?

 

16        A.      From a regulatory point of view or

 

17   scientific point of view?  Which are you asking me

 

18   from?

 

19        Q.      From an EPA, Environmental Protection

 

20   Agency, point of view.

 

21        A.      That is a regulatory point of view.  Almost

 

22   all regulatory agencies, to be very careful, use linear

 

23   dose-response curves for that.  That’s not the science,

 

24   but it’s the regulatory safety position.

 

25        Q.      Now, the issue about whether or not –

 

 

                                                                   146

 1   well, your interpretation of the small fibers is that

 

 2   they’re meaningless, is that correct, in the pleura?

 

 3        A.      Basically, the answer is yes.  The small

 

 4   fibers do not create risk for disease in the pleura.

 

 5        Q.      Doctor, isn’t it true you’ve never studied

 

 6   any asbestos fibers in the pleura, in your rats or

 

 7   otherwise?

 

 8        A.      In my studies I have not looked at that,

 

 9   but I have read the literature on this extensively.  So

 

10   I know the literature about this topic.  And there is

 

11   no evidence that small fibers create risk for cancer

 

12   changes in the pleura.

 

13        Q.      The published literature is published

 

14   because — it’s something that gets published because

 

15   it passes what’s called scientific review; people

 

16   review it, peer review it, and publish it, correct?

 

17        A.      It should be.  Yes.  You’ve got to read it

 

18   carefully to be sure, but one of the standards of the

 

19   scientific literature is that it undergoes peer review.

 

20        Q.      And among the published literature on this

 

21   you mentioned Dr. Suzuki, and the jury heard Dr. Maddox

 

22   talk about Dr. Suzuki.  Dr. Suzuki actually did this

 

23   work and found short, thin — large numbers of short,

 

24   thin asbestos fibers in the pleura of people that have

 

25   mesothelioma, correct?

 

 

                                                                   147

 1        A.      Yeah.  Well, this is his — one of his

 

 2   publications where he reports finding these short

 

 3   fibrils in the pleura.

 

 4        Q.      Right.

 

 5                And he put at the end his conclusion from

 

 6   his research that, “We conclude short, thin asbestos

 

 7   fibers appear to contribute to the causation of human

 

 8   malignant mesothelioma.”

 

 9                And that wasn’t the only article he wrote?

 

10   He wrote a half a dozen of them, didn’t he?

 

11        A.      Can I comment on that?

 

12        Q.      Did he write that?

 

13        A.      He wrote that.  I’m asking, can I explain

 

14   it?

 

15        Q.      I’m just asking, is that in the

 

16   peer-reviewed, scientifically-reviewed medical

 

17   literature?

 

18        A.      Yes, it is.

 

19        Q.      And you disagree with it?

 

20        A.      I disagree.  Actually, I — I don’t

 

21   disagree with his finding.  I would disagree with his

 

22   conclusion.

 

23        Q.      Okay.  But you yourself have never done any

 

24   such work, have you?

 

25        A.      No, I have not personally done this type of

 

 

                                                                   148

 1   work.

 

 2        Q.      Now, you’ve suggested that there wasn’t a

 

 3   scientific basis for this linear dose-response and that

 

 4   it was just regulatory.  Is that what you said?

 

 5        A.      That’s — yes, that’s basically — that’s a

 

 6   basic summary for it.  It’s not based on evaluations of

 

 7   low-level data.

 

 8        Q.      Okay.  Let’s see what — this is a letter

 

 9   from OSHA to a Mr. William Dyson.  And in this

 

10   letter — small print — it says, “Has the theoretical

 

11   risk shown by the mathematical finding model been

 

12   confirmed by scientific observation?”

 

13                And I’m going to read it to the jury

 

14   because it may be — I’m sure you can’t see it over

 

15   there.  It says, “The mathematical model used to assess

 

16   risk is based on scientific observation.  On

 

17   epidemiological studies of disease in cohorts of

 

18   exposed workers, it cannot be considered to present

 

19   theoretical risk since it is a real world model

 

20   constructed from real world studies of workers who were

 

21   made ill and died of asbestos exposure.  The studies

 

22   support the use of the linear model.  In view of such

 

23   evidence, OSHA did not have the freedom to postpone

 

24   action until an epidemiological study became available

 

25   that confirmed OSHA’s risk assessment through

 

 

                                                                   149

 1   observation of excess deaths of exposed workers.  Such

 

 2   an epidemiological study would entail following an

 

 3   extremely large cohort of employees who were exposed at

 

 4   levels below the PEL for the lengthy period of time

 

 5   necessary to account for the latency of cancer.  It

 

 6   remains OSHA’s responsibility to make practical

 

 7   inferences about occupational health risks on the basis

 

 8   of existing evidence.”

 

 9                That’s what they wrote, right?

 

10        A.      But basically they just said what I said.

 

11   They said they don’t have any data at low levels and so

 

12   they guessed it.

 

13        Q.      From the basis of that — that was their

 

14   scientific analysis, OSHA’s scientific analysis, right?

 

15        A.      If you go back and look at the articles

 

16   they used, there were a total of four by OSHA and six

 

17   by the EPA.  All of those were at high dose levels.

 

18                They quote no low-level dose in those

 

19   studies and they said, We had to make a decision

 

20   without waiting for data at low levels and therefore we

 

21   just do a straight line.

 

22                That’s exactly what I’ve been saying.

 

23        Q.      The –

 

24                MR. BURNS:  What do you have?

 

25                MR. HATTEN:  The textbook.

 

 

                                                                   150

 1   BY MR. HATTEN:

 

 2        Q.      You’re familiar with Drs. Dail and Hammar?

 

 3        A.      Yes.

 

 4        Q.      And this is a reliable and respected

 

 5   textbook?

 

 6        A.      That is a respected textbook.

 

 7        Q.      And –

 

 8                MR. BURNS:  What page?

 

 9                MR. HATTEN:  587.

 

10   

 

11   BY MR. HATTEN:

 

12        Q.      And this textbook says that, “When there

 

13   are multiple asbestos exposures, each contributes to

 

14   cumulative exposure and hence to the risk and cause of

 

15   malignant mesothelioma.”

 

16                You disagree with that, too, don’t you?

 

17        A.      Well, I would — in the extreme, I would.

 

18   For example, if I were just to ask them, Would you

 

19   include ambient air in that risk factor, they would say

 

20   no.  So that’s an example where low levels aren’t

 

21   considered.  But in looking at high-level exposures, do

 

22   they all contribute, you would say, yes, you can

 

23   separate between them.

 

24        Q.      He doesn’t say high level, does he?

 

25        A.      For example, they ignore the issue of

 

 

                                                                   151

 1   ambient air.  Do they say ambient air would contribute,

 

 2   too?  If –

 

 3        Q.      You disagree with this text?  They’re

 

 4   talking about occupational exposure, not ambient air.

 

 5   You understand that, don’t you?

 

 6        A.      They’re talking about substantial,

 

 7   high-level occupational exposures.  In that context, I

 

 8   would agree with them.

 

 9        Q.      Do they say that in this book?

 

10        A.      No, but they also say they don’t consider

 

11   the low levels like ambient.

 

12        Q.      Do — they don’t say anything about ambient

 

13   air contributing, do they?

 

14        A.      That’s a very important omission.

 

15        Q.      Okay.  They talk about each occupational

 

16   exposure contributing, don’t they, just like the

 

17   doctors who work at your hospital?

 

18        A.      And what they’re talking about from their

 

19   data are the high-level occupational exposures.  They

 

20   really don’t consider — or — or — the issue of

 

21   ambient air and occupational-level exposures that are

 

22   below ambient air.

 

23                It’s a — it’s people making arguments that

 

24   — without considering the entire data range and

 

25   without talking about the entire data range.

 

 

                                                                   152

 1                MR. BURNS:  What do you have?

 

 2                MR. HATTEN:  This is the American Cancer

 

 3   Society.

 

 4   

 

 5   BY MR. HATTEN:

 

 6        Q.      I’m sure you’re familiar with the American

 

 7   Cancer Society?

 

 8        A.      I am.

 

 9        Q.      And the American Cancer Society — do you

 

10   think they know how to evaluate scientific evidence?

 

11        A.      Well, they’re an organization.  I assume

 

12   there are people on that that understand this

 

13   effectively.

 

14        Q.      They say that, “Although the risk of

 

15   developing mesothelioma increases with the amount of

 

16   asbestos exposure, there is no way to measure the

 

17   minimum amount of asbestos exposure that can lead to

 

18   mesothelioma.”

 

19                Now, that’s the American Cancer Society.

 

20   You disagree with that?

 

21        A.      I agree it’s very hard to measure that.

 

22        Q.      You agree what?

 

23        A.      I agree that it’s very hard to measure the

 

24   minimum amount.

 

25        Q.      It says there’s no way.

 

 

                                                                   153

 1        A.      I would say that it’s very hard.  For

 

 2   example, I keep bringing up the ambient.  They’re not

 

 3   down at that level because if they — if you ask

 

 4   anyone — if you just — if you ask any one of these

 

 5   agencies, any one of these organizations, does ambient

 

 6   air create risk, they’re going to say no.

 

 7        Q.      And the ambient air that you measured, that

 

 8   you tried to tell the jury about, was a lot higher than

 

 9   the ambient air I showed you in those reports, correct?

 

10        A.      It is, but, remember, it’s the high levels

 

11   of ambient air that are the issue because you want to

 

12   know if any of the ambient air creates risk.  So we

 

13   know the low levels don’t create it.  But on the cities

 

14   that have high levels, do they have an increased

 

15   mesothelioma rate?  And the answer is no.

 

16        Q.      You’re familiar with the American

 

17   Industrial Hygiene Association?

 

18        A.      Yes.

 

19        Q.      And that’s a respectable, reliable

 

20   organization?

 

21        A.      It’s a very respectable organization.

 

22        Q.      You’re not a member?

 

23        A.      I’m not.

 

24        Q.      Because you’re not an industrial hygienist?

 

25        A.      That’s correct.

 

 

                                                                   154

 1        Q.      But the American Industrial Hygiene

 

 2   Association says, “Asbestos is a known human carcinogen

 

 3   with no safe threshold of exposure.”

 

 4                You disagree with them, too?

 

 5        A.      I would disagree with that.

 

 6        Q.      The World Trade Organization, do you know

 

 7   them?

 

 8        A.      Yes.

 

 9        Q.      The World Trade Organization is a group

 

10   that has banned asbestos in Europe and other places,

 

11   correct?

 

12        A.      That’s correct.

 

13        Q.      All right.  And they have concluded that on

 

14   the basis of scientific evidence, no minimum threshold

 

15   level of exposure or duration has been identified with

 

16   regard to the risk of pathologies associated with

 

17   chrysotile except for asbestosis.

 

18                You disagree with them?

 

19        A.      I would disagree with that, yes.

 

20        Q.      This is a report from Australia.  Australia

 

21   scientists, to be short, also have concluded that there

 

22   is no threshold that’s been delineated for

 

23   asbestos-related mesothelioma.

 

24                Do you disagree with them?

 

25        A.      Yes.  I would disagree with that statement.

 

 

                                                                   155

 1        Q.      Do you know Dr. John Godleski?

 

 2        A.      Yes.

 

 3        Q.      He is an epidemiologist at Harvard,

 

 4   correct?

 

 5        A.      Yes.

 

 6        Q.      And he has concluded that there is no known

 

 7   threshold for asbestos exposure below which there is no

 

 8   risk of mesothelioma?

 

 9        A.      I don’t remember that exactly.  Again, he

 

10   must be talking about occupational exposures, not the

 

11   low levels that I’ve been talking about.

 

12        Q.      We’re talking about occupational levels.

 

13   This case is about occupational levels.  You understand

 

14   that, right?

 

15        A.      I think the issue in this case is an

 

16   occupational exposure to a level of chrysotile that’s

 

17   below ambient.

 

18        Q.      All right.  You have not even reviewed the

 

19   evidence that’s been admitted about exposure in this

 

20   case, have you?

 

21        A.      I’ve read all the deposition testimony.

 

22        Q.      You have not reviewed the information that

 

23   has been submitted in this case about the testing

 

24   evidence that is before this Court?

 

25        A.      Well, I don’t know what happened before I

 

 

                                                                   156

 1   came to testify, but I have read all the studies that I

 

 2   know that are available on gaskets and packings and I

 

 3   have read all the deposition testimony that relates to

 

 4   this case.

 

 5        Q.      You have not read, nor evaluated, any

 

 6   studies except the peer-reviewed studies that were paid

 

 7   for by Garlock, correct?

 

 8                MR. BURNS:  Object to form.

 

 9                THE WITNESS:  That’s not correct.  That’s

 

10   absolutely not correct.

 

11                THE COURT:  Sustained.

 

12   

 

13   BY MR. HATTEN:

 

14        Q.      In your report on the — in your report on

 

15   this case, the peer-reviewed studies that you listed

 

16   were by Dr. Mangold, right, one of them?

 

17        A.      That was one, yes.

 

18        Q.      He’s a Garlock consultant, correct?

 

19        A.      That’s only one thing that I read.

 

20        Q.      That’s one.

 

21                Number two was Boelter, right?

 

22        A.      I’ve read Boelter as well.

 

23        Q.      That’s another Garlock expert, right?

 

24        A.      That’s only one of about 20 I’ve read.

 

25        Q.      There were only three in your report.

 

 

                                                                   157

 1        A.      You asked how many I read.  In my report –

 

 2        Q.      In your report you only listed three.  And

 

 3   I’ve given you two of the three names, correct?

 

 4        A.      I think that’s correct, but that’s not all

 

 5   that I read.

 

 6        Q.      Thank you.  That’s all I asked.  In your

 

 7   report for this case.

 

 8                Are you aware that Congress has also looked

 

 9   at the issue and made a Congressional determination

 

10   that medical science has not established any minimum

 

11   level which is considered to be safe for individuals

 

12   exposed to the fibers?

 

13        A.      I — I don’t recall reading that statement.

 

14   I don’t have any reason to disagree with it, but I

 

15   can’t read it from that document.

 

16        Q.      So, Doctor, in this case am I correct that

 

17   you have not read studies that show fiber release from

 

18   asbestos gaskets being removed in the range of 70 to

 

19   7 — 7 to 70 fibers per cc?  You’ve not read that, have

 

20   you?

 

21        A.      Read that level?  I have read studies done

 

22   by Dr. Longo that had very high numbers that were not

 

23   substantiated by any other industrial hygienists and

 

24   are out of the published range for multiple

 

25   publications, government publications, but I have read

 

 

                                                                   158

 1   some very, very high levels that came from Longo that I

 

 2   would consider a deviant from the standard in the

 

 3   field.

 

 4        Q.      Are you an industrial hygienist?

 

 5        A.      No.

 

 6        Q.      Are you a tester of asbestos products?

 

 7        A.      No.

 

 8                MR. HATTEN:  All right.  I’d ask that his

 

 9   opinion be stricken as to what was — what was

 

10   testified to by Dr. Longo, which he has no basis to

 

11   agree or disagree about.

 

12                THE COURT:  He was commenting on studies,

 

13   not what Dr. Longo testified to.

 

14                MR. HATTEN:  Sir?

 

15                THE COURT:  He was commenting on studies he

 

16   read in response to your question, not testimony by Dr.

 

17   Longo.  Overruled.

 

18   

 

19   BY MR. HATTEN:

 

20        Q.      The –

 

21                THE COURT:  Did you want to object to that?

 

22                MR. BURNS:  I was planning to, but you

 

23   overruled it.  You stated the basis of my objection and

 

24   sustained my objection that I would have made.

 

25                THE COURT:  I didn’t know if you wanted to

 

 

                                                                   159

 1   object to my sustaining your objection.

 

 2                MR. BURNS:  I didn’t.  I would agree with

 

 3   your sustaining.

 

 4                THE COURT:  Thank you.

 

 5   

 

 6   BY MR. HATTEN:

 

 7        Q.      You disagree with testing by Dr. Longo and

 

 8   you’ve never done any testing yourself?

 

 9        A.      That’s — well, no I — wait.  Wait.

 

10        Q.      Any product testing of gaskets and packing.

 

11        A.      I measured lots of fiber in chambered

 

12   conditions with animal exposures.  I’ve not done

 

13   product testing, but I have read many articles by many

 

14   different industrial hygienists who have done product

 

15   testing and I’ve looked for consistency between the

 

16   articles.

 

17                Dr. Longo stands out as a far extreme

 

18   that’s not validated by other people in his own field.

 

19        Q.      You’re not in that field, are you?

 

20        A.      I’m not.

 

21        Q.      All right.

 

22        A.      But I can read the literature.

 

23        Q.      I can read it, too.  Does that make me an

 

24   expert?

 

25                Assuming, Doctor, that the evidence of Dr.

 

 

                                                                   160

 1   Longo is uncontradicted in this case, you have no

 

 2   evidence other than what is in the evidence in this

 

 3   case of any testing that you can bring to this court,

 

 4   do you?

 

 5                MR. BURNS:  Object to form.  I contradicted

 

 6   it while he was on the stand and I cross-examined.  I

 

 7   would disagree with his statement it was uncontradicted

 

 8   in this case.

 

 9                THE COURT:  He was not here for Dr. Longo’s

 

10   testimony.

 

11                MR. HATTEN:  Correct.

 

12                THE COURT:  You’re asking him to comment on

 

13   testimony he didn’t hear and doesn’t know what Dr.

 

14   Longo said.

 

15                MR. HATTEN:  Correct.  So he can’t

 

16   contradict Dr. Longo.  He doesn’t know what Dr. Longo

 

17   said.

 

18                MR. BURNS:  And I would state that it’s

 

19   beyond the scope of the direct because I didn’t go

 

20   anywhere near almost any of this in my direct.

 

21                THE COURT:  The question assumes the

 

22   answer.

 

23                Next question.

 

24                MR. HATTEN:  Okay.

 

25                I think that’s all the questions I have.

 

 

                                                                   161

 1   Thank you very much.

 

 2                MR. BURNS:  Your Honor, I have some –

 

 3                THE COURT:  It’s kind of like a 12-second

 

 4   delay in radio.  We just wait.

 

 5                MR. BURNS:  I have some redirect.  I

 

 6   actually think if we took a five-minute break it would

 

 7   probably save time than if I just started going through

 

 8   it.

 

 9                THE COURT:  Sure.  We’ll make it ten

 

10   minutes.  How does that sound?

 

11                Leave your notebooks on the chairs.  Go

 

12   with the bailiff to the jury room.  Don’t discuss

 

13   anything about the case.  It’s not time yet to do that.

 

14   

 

15                 (The jury exited the courtroom.)

 

16   

 

17                THE COURT:  Okay.  Doctor, you can go down

 

18   and wander around.  Again, you’re still on the witness

 

19   stand.  Don’t discuss your testimony.

 

20   

 

21                 (Recess)

 

22   

 

23                THE COURT:  Okay.  Bring the jury in.

 

24   

 

25   

 

 

                                                                   162

 1                (Whereupon, an off-the-record discussion

 

 2                took place.)

 

 3   

 

 4                 (The jury entered the courtroom.)

 

 5   

 

 6                THE BAILIFF:  Nine jurors in the box.

 

 7                THE COURT:  Waive the poll?

 

 8                MR. HATTEN:  Yes, sir.

 

 9                THE COURT:  Thank you very much.

 

10                All right.  Mr. Burns.

 

11   

 

12                   REDIRECT EXAMINATION

 

13   BY MR. BURNS:

 

14        Q.      I’m going to try to be as quick as

 

15   possible.

 

16                Dr. Crapo, you were asked some questions by

 

17   Mr. Hatten about Brigitte Gottschall.  And she works

 

18   with you?

 

19        A.      Yes.  Well, she works at National Jewish.

 

20        Q.      And when did she come to National Jewish?

 

21        A.      She trained there and finished her training

 

22   while I was chair, in the late 1990s, I think, early

 

23   2000s.

 

24        Q.      So she trained underneath you?

 

25        A.      Well, she trained — I was department

 

 

                                                                   163

 1   chairman, and she was trained in the occupational

 

 2   medicine division.  She was recruited there, I think,

 

 3   by Lee Newman, the existing head of that division, and

 

 4   then she stayed on for a faculty position when she

 

 5   finished her training.

 

 6        Q.      Okay.  I’m going to ask if you agree with

 

 7   this sentence:  “Exposure to crocidolite is associated

 

 8   with the highest rates of mesothelioma.”

 

 9                Do you agree with that?

 

10        A.      I do.

 

11        Q.      “Mesothelioma may occur after exposure to

 

12   any type of asbestos.”

 

13                If we go to the slide that we used on your

 

14   direct, I understood that, according to dose, you said

 

15   that that could occur, correct?

 

16        A.      I said it could occur with high-dose

 

17   chrysotile, yes.

 

18        Q.      Do you agree with this sentence, that,

 

19   “Mesothelioma may occur after exposure to any type of

 

20   asbestos”?

 

21        A.      I do agree with that.

 

22        Q.      Okay.  It states, “Do you know that she is

 

23   of the opinion that it is the totality of the exposure

 

24   to asbestos that causes the disease mesothelioma?”  And

 

25   I think you said to Mr. Hatten you agreed in part and

 

 

                                                                   164

 1   disagreed in part.  Can you explain that?

 

 2        A.      I do agree that the high-level occupational

 

 3   exposures, it’s the totality that does it, but I don’t

 

 4   think that anybody that we’re discussing, from agencies

 

 5   to Dr. Gottschall, really considered the really

 

 6   low-level exposures like ambient.  Those are simply not

 

 7   considered when people are forming opinions like this.

 

 8                And so I think that it is truly the

 

 9   totality if you’re dealing with the high-level

 

10   occupational exposures from which the risk data came

 

11   from.

 

12        Q.      Okay.  Moving on.  And this is her

 

13   peer-reviewed article, Dr. Gottschall.  “Mesothelioma

 

14   may occur after exposure to any type of asbestos.”

 

15                And, again, do you agree or disagree with

 

16   that if it’s high dose?

 

17        A.      No.  I agree with it if you consider dose.

 

18        Q.      Okay.  You went through with Mr. Hatten a

 

19   number of agencies.  In fact, all the agencies.

 

20        A.      That’s true.

 

21        Q.      Governmental agencies that talked about

 

22   this from a regulatory perspective.

 

23                You stated — I think I heard you

 

24   correctly — that from a regulatory perspective, that

 

25   linear dose model was a reasonable approach to public

 

 

                                                                   165

 1   safety.  What do you mean by that?

 

 2        A.      What I mean is that if your charge is to

 

 3   develop policies and procedures to protect safety, you

 

 4   like to err on the side of overregulating and getting

 

 5   rid of even minimal risks.

 

 6                If you don’t know what the risk is at low

 

 7   levels, the safe thing to do is to do a linear

 

 8   dose-response and then regulate based on that so that

 

 9   you would not miss the opportunity to protect the

 

10   safety of the people exposed at low levels.

 

11                It doesn’t mean that you believe those low

 

12   levels actually cause it, but it means you want to

 

13   protect against unknown risks that you don’t have data

 

14   to evaluate.

 

15        Q.      And this is question three that Mr. Hatten

 

16   showed you.  I think this is some of the smallest –

 

17   wins the award for smallest type we’ve had on any

 

18   document.

 

19                But what they talk about here, and I’ll

 

20   read the part I want to focus on — the question was,

 

21   “Has the theoretical risk shown by the mathematical

 

22   model” — that’s the OSHA model we just talked about,

 

23   correct?

 

24        A.      Yes.

 

25        Q.      – “been confirmed by the scientific

 

 

                                                                   166

 1   observation?  The mathematical model used to assess

 

 2   risk is based on scientific observation, i.e., on

 

 3   epidemiological studies of disease in cohorts of

 

 4   exposed workers.”

 

 5                Now, I’m going to lead you on this because

 

 6   there’s been some rulings about what we can and can’t

 

 7   talk about this.

 

 8        A.      Okay.

 

 9        Q.      But the cohorts of the exposed workers,

 

10   what level of exposure were all of those cohorts –

 

11        A.      They were all –

 

12        Q.      – exposed to?

 

13        A.      They were all very high exposures.  They

 

14   averaged anywhere from 100 –

 

15        Q.      No, no, no, no, no.  No numbers.

 

16        A.      They were all just very high-dose

 

17   exposures.

 

18        Q.      Okay.  That’s why I’m leading.  So they

 

19   were all high exposures?

 

20        A.      Yes.

 

21        Q.      And they talk about a theoretical risk.

 

22   Well, I’ll just move on.

 

23                Mr. Hatten showed you this, which was the

 

24   1989 OSHA Asbestos Work Group.  And I’ll read the first

 

25   sentence.  “Chrysotile is as likely as crocidolite or

 

 

                                                                   167

 1   other amphiboles to induce mesotheliomas after

 

 2   intrapleural injection.”

 

 3                And you sort of talked about that.  But

 

 4   what’s an intrapleural injection?

 

 5        A.      That means you take the chrysotile, salify

 

 6   it in some water, and stick a needle into the chest

 

 7   wall and inject it right onto the pleura.

 

 8        Q.      All right.  And, again, because of some

 

 9   rulings of the Court and some things we discussed, I’m

 

10   going to ask a very focused question.

 

11                We went over the body’s defense mechanism,

 

12   and you talked about how that broke chrysotile down.

 

13                If we did an intrapleural injection, would

 

14   any of those defense mechanisms be in play?

 

15        A.      No.  No.  You’d circumvent them all.

 

16        Q.      Okay.  And I think you stated on

 

17   intrapleural injection you could get mesothelioma with

 

18   things that weren’t asbestos?

 

19        A.      That’s true.

 

20        Q.      And why is that?

 

21        A.      Well, it’s because you put a massive

 

22   stimulus into the pleural space without letting any of

 

23   the body’s degradation or defense mechanisms clear or

 

24   act on it.  And as a result, virtually any lung fiber

 

25   will cause a mesothelioma if you put it in that space.

 

 

                                                                   168

 1        Q.      Okay.  And then the last thing I want to

 

 2   discuss with you — we have some more things about

 

 3   OSHA, but, again, from a regulatory point of view,

 

 4   you’ve already stated you think they started with

 

 5   higher exposures and extrapolated down for protection.

 

 6   Is that a good summary?

 

 7        A.      That’s a good summary.

 

 8        Q.      The last thing I want to talk to you about

 

 9   is this amicus brief that you discussed with Mr.

 

10   Hatten.

 

11                First of all, it was published — it was

 

12   reprinted in the International Journal of Occupational

 

13   and Environmental Health.  I think you said you didn’t

 

14   have a very high opinion of that journal.  Why is it

 

15   that you don’t have a high opinion of that journal?

 

16        A.      It does not have a track record of

 

17   publishing good, high-quality, peer-reviewed articles.

 

18   And so it’s a journal I would not rely on.

 

19        Q.      So this article is entitled, Asbestos

 

20   Exposure Causes Mesothelioma but Not This Asbestos

 

21   Exposure, An Amicus Brief to the Michigan Supreme

 

22   Court.  And, again, I’ll lead you for some reasons

 

23   having to do with some rulings of the Court.

 

24                This is a reprinting of a letter that a

 

25   bunch of people sent on behalf of the plaintiff’s side

 

 

                                                                   169

 1   in a lawsuit, correct?

 

 2        A.      That’s what I understand, yes.

 

 3        Q.      And let’s read this opening paragraph that

 

 4   talks about that.

 

 5                “Manufacturers of asbestos brakes supported

 

 6   by many manufacturing and industry amicus curiae…” –

 

 7   so that’s the defense side had some briefs as well,

 

 8   correct?

 

 9        A.      Yes.

 

10        Q.      –  “…requested the Michigan Supreme

 

11   Court to dismiss testimony of an expert regarding the

 

12   ability of asbestos dust from brakes to cause

 

13   mesothelioma as junk science.”

 

14                So basically this fight was about whether

 

15   in a case in Michigan about brakes someone from the

 

16   plaintiff’s side could take the stand; is that your

 

17   understanding?

 

18        A.      Yes.

 

19        Q.      Okay.

 

20                “Scientists are concerned with the sweeping

 

21   and unequivocal claims that any conclusion that

 

22   asbestos from brakes causes a signature

 

23   asbestos-related disease in a particular person must

 

24   be, quote, junk science.

 

25                “The manufacturer’s sweeping pronouncements

 

 

                                                                   170

 1   are what veer from accepted reliable mainstream

 

 2   scientific methods and conclusions.  This article

 

 3   outlines the evidence supporting the conclusion that

 

 4   asbestos from brakes can and does cause mesothelioma

 

 5   and describes the defendant’s attempts to fabricate

 

 6   data about this conclusion.”

 

 7                And this is what they talked about the

 

 8   admissibility of the witness, correct?

 

 9        A.      Yes.  That’s my understanding.

 

10        Q.      Okay.  Just for brakes, correct?

 

11        A.      That’s what I understand.  Yes.

 

12        Q.      This article — is this a peer-reviewed

 

13   article?

 

14        A.      I’m sure it’s not.

 

15        Q.      Okay.

 

16        A.      That’s not a — it’s not a scientific

 

17   article.  It doesn’t contain any new science or new

 

18   evaluation.  Even the title tells you it’s not a

 

19   scientific article.  So that would not be

 

20   peer-reviewed.

 

21        Q.      One last thing.  And I was wrong.  There

 

22   was one more thing I had in my notes.  I just didn’t

 

23   have an article associated with it.

 

24                You talked about Dr. Suzuki, and we talked

 

25   about him on direct.  You stated that you agreed with

 

 

                                                                   171

 1   his finding but disagreed with his conclusion when he

 

 2   said that the short fiber got to the pleura and then

 

 3   was the cause of the tumors.  Do you recall that?

 

 4        A.      Yes.

 

 5        Q.      Explain that answer.  When you say you

 

 6   agree with his finding and disagree with his

 

 7   conclusion, what did you mean by that?

 

 8        A.      So if you look at his paper, what he does

 

 9   is he takes a group of people that had asbestos-related

 

10   disease and he looks at their pleura, and he finds lots

 

11   of those little, short fibers.  The only place he looks

 

12   is the pleura.  And he doesn’t look at any control

 

13   cases.

 

14        Q.      What’s a control case?

 

15        A.      Well, he doesn’t look at any people that

 

16   didn’t have asbestos exposure or didn’t have the

 

17   disease.  So he just looks at a group of cases.  And he

 

18   finds little, short fibers.

 

19                Now, on that I agree with him.  I would

 

20   expect if you have asbestos exposure and you look in

 

21   the pleura, you’ll find lots of little, short fibrils.

 

22   But that finding does not prove cause and effect.  He’s

 

23   just proving — all he’s doing is showing they’re

 

24   there.  That’s something I think is important and I

 

25   agree with.  They are there.

 

 

                                                                   172

 1                Now, if he looked at other places, he would

 

 2   have also found them because people who have looked in

 

 3   other organs have also found lots of short fibrils

 

 4   after exposure.

 

 5                The question is, do the fibrils cause the

 

 6   disease?  And he didn’t have any things to compare.

 

 7   So, in fact, when he goes from seeing the fibrils to

 

 8   saying they cause the disease, he’s made a leap of

 

 9   judgment that has no basis in his paper, is all I’m

 

10   saying.

 

11                I’m trying to say to see if a disease is

 

12   caused by it, you have to have a group that are exposed

 

13   and a group that are not exposed to the same

 

14   environment, and then you have to see if the ones that

 

15   are exposed have more disease than the other — than

 

16   the other one did.

 

17                He didn’t do that.  So what you’re really

 

18   asking is, does the presence of those small fibrils

 

19   create risk for disease?  And he just said that they’re

 

20   there.  But to answer the question whether they cause

 

21   the disease, you have to go back and do the

 

22   epidemiology studies I was talking about.

 

23                And so, therefore, I would disagree with

 

24   his conclusion that there is a cause-and-effect

 

25   relationship.  In fact, when you do look at the data,

 

 

                                                                   173

 1   the cause-and-effect relationship is with the amphibole

 

 2   exposure and the long fibers but not with the short

 

 3   fibrils.

 

 4        Q.      And that was my last question.  It’s your

 

 5   opinion that it’s the amphibole fibers and the long

 

 6   fibers that cause mesothelioma and not the short ones?

 

 7        A.      That’s correct.

 

 8                MR. BURNS:  No more questions, Your Honor.

 

 9                THE COURT:  Thank you, Mr. Burns.

 

10                Thank you for coming, Doctor.  You’re free

 

11   to go.

 

12   

 

13                 (The witness was excused.)

 

14   

 

15                MR. BURNS:  Your Honor, at this time, and

 

16   subject to reviewing our notes tonight to make sure

 

17   we’ve entered every exhibit we wanted to enter, John

 

18   Crane at this time would rest.

 

19                THE COURT:  Okay.  No rebuttal?

 

20                MR. HATTEN:  We don’t have any rebuttal.

 

21   It may be that some of the things we have today I may

 

22   want to make an exhibit in the morning.

 

23                THE COURT:  That’s fine.

 

24                MR. HATTEN:  But I’ll take a look at that.

 

25                THE COURT:  I told you we’ll do that in the

 

 

                                                                   174

 1   morning.

 

 2                Now, based on the length of the arguments,

 

 3   is starting at ten okay?

 

 4                MR. HATTEN:  Yes, sir.

 

 5                MR. BURNS:  My closing argument is going to

 

 6   be on the order of my opening argument, so 45 minutes

 

 7   or so.

 

 8                THE COURT:  I didn’t know if you wanted to

 

 9   start at nine and finish around noon-ish and let them

 

10   go to lunch or, you know, ten.  Do you think you’ll get

 

11   them done in three hours?

 

12                MR. BURNS:  I would hope so.  I’ll be about

 

13   45 minutes.

 

14                MR. HATTEN:  I would not want to break it

 

15   up, so I would either go ten to one or go nine to

 

16   twelve, whichever you prefer.

 

17                THE COURT:  What time do you want to come?

 

18                A JUROR:  Nine to twelve.

 

19                THE COURT:  All right.  We’ll start at nine

 

20   tomorrow morning then.  That means the jury will be

 

21   back at 8:45.  Give your notebooks to the bailiff.

 

22                MR. BURNS:  Just so we’re clear, and out of

 

23   an abundance of caution, we don’t want everybody to go

 

24   home at noon.  We’re just talking about the length of

 

25   the arguments.

 

 

                                                                   175

 1                THE COURT:  Oh, no.  No.  They’re not going

 

 2   home.

 

 3                MR. BURNS:  I didn’t know if there was any

 

 4   confusion.

 

 5                THE COURT:  No.  No.  We’re basically

 

 6   talking about doing it smoothly so we kind of get to

 

 7   lunch.  That’s all.  Oh, no.  You’re not leaving.

 

 8                As a matter of fact, based on the arrival

 

 9   times around here, I’m thinking about keeping you all

 

10   overnight.  Okay?  So we need to kind of be here on

 

11   time.  Did you know I could do that?

 

12                THE JURY MEMBERS:  Yes.

 

13                THE COURT:  Might make the paper.

 

14                Anyway, 8:45 tomorrow morning you need to

 

15   be here, please.  The bailiff has your cell phone

 

16   numbers.  He’ll be calling at 8:45, trust me.  Leave

 

17   the notebooks with him.  Again, no research.  No

 

18   discussing the case.  It’s not over until it’s over,

 

19   and it’s not over yet.  It’s also not yours.  See you

 

20   tomorrow morning.

 

21   

 

22                 (The jury exited the courtroom.)

 

23   

 

24                THE COURT:  Anything else?

 

25                MR. BURNS:  I wouldn’t think so.  Both

 

 

                                                                   176

 1   sides will check tonight with the exhibits, make sure

 

 2   we have everything in.  If not, we’ll move it in in the

 

 3   morning.  We’ll make sure everything that’s supposed to

 

 4   be up at the table will be at the table, and, if not,

 

 5   we’ll proceed to the closing arguments.

 

 6                THE COURT:  All right.  I’ll leave the

 

 7   scene of the blunt-force trauma now.  May be some blood

 

 8   splatter.  I’m not sure.  He’s got some stuff up here.

 

 9   I notice some exhibits you were using.

 

10                MR. BURNS:  I think I marked them as –

 

11                THE COURT:  They’re defense exhibits.

 

12                MR. BURNS:  I didn’t enter them into

 

13   evidence.  I marked them for identification.

 

14                THE COURT:  I didn’t see the report.

 

15                MR. HATTEN:  They’re his report.  By

 

16   agreement –

 

17                MR. BURNS:  They’re not going in.  I

 

18   premarked them, but they’re not going into evidence.

 

19                THE COURT:  I kind of wondered about that.

 

20   I don’t know what all of this is.

 

21                MR. BURNS:  His CV goes in.

 

22                THE COURT:  Figure out what it is, and I’ll

 

23   see you in the morning.

 

24                MR. HATTEN:  Thank you, Judge.

 

25   

 

 

                                                                   177

 1                (Whereupon, trial proceedings were

 

 2                adjourned at 3:10 p.m., to be reconvened

 

 3                April 17th, 2013, at 9:00 a.m.)

 

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                                                                   178

 1                  CERTIFICATE OF COURT REPORTER

 

 2   

 

 3                I, Penny C. Wile, RPR, RMR, CRR, Shorthand

 

 4   Reporter, certify that I recorded verbatim by Stenotype

 

 5   the proceedings in captioned cause before the Honorable

 

 6   Timothy S. Fisher, Chief Judge, and a jury, in Newport

 

 7   News, Virginia, on April 16, 2013.

 

 8                I further certify that to the best of my

 

 9   knowledge and belief the foregoing transcript

 

10   constitutes a full, accurate and complete transcript of

 

11   said proceedings.

 

12                Given under my hand this 16th day of April,

 

13   2013, at Virginia Beach, Virginia.

 

14   

 

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18                            ___________________________

 

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