Last summer, the Maryland Court of Special Appeals decided Dixon v. Ford Motor Co. (discussed by me here) in which the court reversed a $15 million verdict (reduced to $6 million by the cap on noneconomic damages, and down to $3 million because of a joint tortfeasor settlement), finding that although expert testimony about the particular estimates of asbestos exposure was impermissible, the expert can testify as to the ranges of exposure and their approximate hazards… but saying there is “more risk” without an estimate will not get you there. Basically, the path the court suggested was having the expert testify using the plaintiff’s contentions as hypothetical facts and estimate the likelihood that the plaintiff suffered various exposures to asbestos, and the likely risks consistent with those exposures based on epidemiological data.
The case has been appealed to the Maryland Court of Appeals and has now been briefed. I read the plaintiff’s brief. They are arguing largely about what I did in my blog post (yet they didn’t cite me!): the jury was in a perfect position to make the call and they made it.
The Coalition for Litigation Justice and Product Liability Advisory Council, two shameless corporate hacks that have never seen a viable lawsuit in their lives – actually they are cool with lawsuits from anyone who is not injured (their worldview: a civil justice system only for big company battles and collecting debts from people) – filed amicus briefs arguing essentially that it does not matter if everyone using common sense knows where the exposure comes from – plaintiff can’t prove it on a hyper-technical level and therefore Ford should get a pass on the harm they caused. (I think that was what they argued… I couldn’t bear to read them all.) Does the court really read this garbage from cover to cover? Has a single appellate opinion in human history ever been swayed by one of these briefs?
Anyway, it will be interesting to see how the court deals with this. Funny thing is that the jury was out for an hour and a half in this case. If they try it again, Ford is just going to get popped again. It would be hard to find an appellate opinion in a case this big with less on the line… unless the Maryland high court kicks the case all together based on the nonsense in these amicus briefs.