Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter

In Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014), the Maryland Court of Appeals missed an opportunity to place causal apportionment of damages in asbestos cases on a sound legal and factual basis. Instead, the Court misinterpreted the law to be about fault instead of causation, and it failed to come to terms with the facts that supported apportionment.

Carter was a consolidation of four lung cancer cases for trial before a single jury. All plaintiffs had substantial smoking histories, with varying degrees of asbestos exposure. None of the plaintiffs had been an insulator or worked in an asbestos factory. In one of the cases, involving Roger C. Hewitt, Sr., defendant Wallace & Gale Asbestos Settlement Trust[1] proffered a report of its expert witness, Dr. Gerald R. Kerby, who opined that the Mr. Hewitt’s lung cancer and death was apportionable, 3:1, between two causes, smoking and asbestos. 96 A.3d at 151-52.

The plaintiffs’ expert witness, Dr. Steven Zimmet provides the catechistic testimony, based upon the Mt. Sinai scriptures. Zimmet testified that “he could not differentiate between the two causes because the two exposures [asbestos and tobacco] are ‛not just additive, they are synergistic which means they multiple exposures’.” Id. at 151. Of course, Zimmet’s profession of ignorance was hardly probative of whether an apportionment could be made. The distinction, however, between knowledge that something cannot be done, and ignorance as to how it might be done, was lost upon the trial judge, who was wildly dismissive of the proffered opinion from Dr. Kerby:

“No, I understand there is a statistical basis for likelihood of risk. But in a given—with a given plaintiff, I don’t know how you can apportion it. But, you know, I guess, the witness can say what he says if he is qualified to say it. But I’m not going to give an instruction on this because it is not — I don’t perceive it at this point to be the law in these types of cases.

* * *

You can apportion risk. I don’t know how, in an individual plaintiff[‘s] case, you can apportion damages. I don’t know. It is a mystery to me. We’ll find out. The doctor will show up and we will hear about it.”

Id. at 151.

The trial judge excluded Dr. Kerby’s apportionment opinion, based upon a filed offer of proof, and refused to charge the jury on apportionment of damages. As for the jury instruction on apportionment, the trial judge ventured that the defendant was asking to the jury to make “a very unscientific wild guess.” Id. at 151. Of course, allowing the jury to decide any causation claim upon evidence of increased risk sanctions wild guesses and unscientific speculation. Risk is not causation. See, e.g., Guinn v. AstraZeneca Pharms., 602 F.3d 1245, 1255 (11th Cir. 2010) (“An expert, however, cannot merely conclude that all risk factors for a disease are substantial contributing factors in its development. ‘The fact that exposure to [a substance] may be a risk factor for [a disease] does not make it an actual cause simply because [the disease] developed.’”) (internal citation omitted). See also Richard Doll, “Proof of Causality: Deduction from Epidemiological Observation,” 45 Perspectives in Biology & Medicine 499, 500 (2002) (“That asbestos is a cause of lung cancer in this practical sense is incontrovertible, but we can never say that asbestos was responsible for the production of the disease in a particular patient, as there are many other etiologically significant agents to which the individual may have been exposed, and we can speak only of the extent to which the risk of the disease was increased by the extent of his or her exposure.”). Given that courts have put juries into the business of making wild guesses, the trial court failed to explain why it could not make a guess based upon the same sort of increased risk evidence that would support a finding of causation against the asbestos defendant alone.

The jury returned verdicts for all four plaintiffs, and the defendant appealed. The Maryland Special Court of Appeals reversed and remanded the Hewitt case for a new trial.[2] Wallace & Gale Trust v. Carter, 65 A.3d 749, 752 (Md. App. 2013). The Maryland Court of Appeals, however, took the plaintiff’s appeal, and reinstated the verdict in favor of the Hewitt family[3].

The Court of Appeals did not fuss over the general statement of Maryland law of apportionment of damages, which has adopted the American Law Institute’s Restatement (Second) of Torts § 433A (1965), which provides:

“(1) Damages for harm are to be apportioned among two or more causes where

          (a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each  cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.”

Id. at 157-58, quoting the Restatement. The Court did not explain why it was relying upon a portion of the Restatement, which has been superseded by the Restatement Third of Torts: Apportionment of Liability § 26 (2000).

In any event, the Court of Appeals did recognize that the crucial issue was whether there was a reasonable basis for determining the contribution of each cause to a single harm. On this issue, the Carter court took its lead from antiquated dicta from a treatise, 30 years out of date. W. Page Keeton, et al., Prosser and Keeton on Torts § 52, at 345 (5th ed. 1984). See Georgetown Law Library, “Torts Law Treatises” (“This classic hornbook on torts is no longer up-to-date… .”). The Court quoted:

“The distinction is one between injuries which are reasonably capable of being separated and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule devised for that purpose. If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries; and the same of course is true for wounds negligently inflicted…. Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

96 A.3d at 158, quoting Prosser and Keeton on Torts § 52, at 345-47 (5th ed. 1984) (internal citations omitted). As can be seen from the language quoted by Court, the venerable, but out-dated text never even considered an apportionment of an injury where the only information about causation was the existence of ex ante risks. Conspicuously absent from the hornbook are any examples of cases in which causation itself is predicated upon quantitative risk estimates, which in turn could readily supply the basis for apportionment.

As for the science, the Court of Appeals cited a textbook written by plaintiffs’ lawyers:

“asbestos and tobacco smoke are complex carcinogens that can affect multiple steps in the multistage process of cancer evolution, and that the combined effects will depend on the relative magnitude of each carcinogen at each stage. As reported in different studies, the interactive effect ranges from less than additive to supramultiplicative [sic] but the model for insulation workers approximates a multiplicative effect. If the multistage model of carcinogenesis holds, and asbestos and smoking act at different stages, then a multiplicative relationship follows.”

96 A.3d at 160-61, quoting from George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and Litigation, 13 The Sourcebook on Asbestos Diseases: Medical, Legal, and Technical Aspects 149 (1996). Peters and Peters is a consulting and law firm in Santa Monica. Barbara J. Peters is a lawyer and a member of the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys Association of California, and the Association of Trial Lawyers of America.

If the Court of Appeals had even bothered to read the plaintiffs’ lawyer tract, it would have seen that even the Peters had qualified their opinion, in their 1996 book, by suggesting that the “model for insulation workers approximates a multiplicative effect.” Id. (emphasis added). Mr. Hewitt had been a crane operator, which hardly involves the same level of exposure as an asbestos insulator, and the evidence for multiplicative synergy is sorely lacking outside a few, heavily exposed cohorts such as insulation workers. In any event, the Court of Appeals failed to explain or justify why a multiplicative model, even if it were appropriate, is decisive of the issue whether or not there was a reasonable basis for apportionment.

While we might excuse the Court of Appeals’ missteps in interpreting scientific evidence, even if filtered through funnels created by the plaintiffs’ expert witness Zimmet and the law firm of Peters & Peters, harder to forgive is the Court’s bobbling the interpretation of apportionment in New Jersey courts. The Special Court of Appeals had relied upon the New Jersey Dafler case, which affirmed a jury’s apportionment of damages in an asbestos and smoking lung cancer case. Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App. Div.1992), aff’d 132 N.J. 96, 622 A.2d 1305 (1993) (per curiam). In Dafler, the plaintiff’s expert witness made the usual protestations that the outcome, lung cancer, was indivisible, and the defense expert witness opined that smoking was the sole cause. The New Jersey appellate courts held that it would be manifestly unjust to attribute 100% of the lung cancer to smoking when no expert witness testified to such an allocation.

The Court of Appeals correctly pointed out that New Jersey cases are not binding upon it and that it would choose not to do so, which was its wont. The Court then proceeded to ignore that the Dafler holding was explicitly adopted by the New Jersey Supreme Court, and that the holding was based upon a causal, not a fault-based, apportionment. Indeed, the Court of Appeals went as far as to declare that the Dafler case was based upon fault principles because the Appellate Division there had stated that “apportionment is also consistent with the principles of the Comparative Negligence Act.” 96 A.3d at 155, quoting from Dafler, 259 N.J.Super. at 35, 611 A.2d at 145 (emphasis added). What the Maryland Court of Appeals failed to realize, however, was that the Dafler case was tried in New Jersey’s regime of hyper-strict asbestos liability, in which evidence of fault is excluded. Of necessity, the evidence and the verdict in Dafler were based exclusively upon causal determinants, not fault principles. Indeed, the Appellate Division’s “also” emphasized here in the quote from Dafler makes clear that the Appellate Division was merely noting that New Jersey juries are asked to make similar assessments of comparative contributions in fault, and that making such an assessment is not beyond the jury’s function or competence.

Two judges, in Carter, dissented in a polite, factual opinion that tore away at the majority opinion. The dissent noted that in Maryland, as in most states, workman’s compensation judges apportion causal shares to single injuries all the time. 96 A.3d at 173. And the dissent dug deeper into New Jersey law, as well as other foreign states, to expose the majority’s poor scholarship:

“Death may be indivisible as to result, but it is not per se incapable of apportionment. Many courts around the country have permitted apportionment in death cases. See e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 655 (1988) (permitting apportionment of damages in a wrongful death action based on smoking history and asbestos exposure); Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (same); see also Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679, 687 (2000) (concluding that while death is indivisible as to result, it is capable of apportionment in terms of causation). … In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault. See Restatement (Third) of Torts: Physical and Emotional Harm § 28, cmt. d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”); see also Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L. 549, 568–69 (1995) (stating that although “comment i [to the Restatement (Second) of Torts § 443A] states that death is the quintessential indivisible harm … deaths attributable to toxic causes, as when a plaintiff dies from lung cancer brought about by the combined effects of smoking and asbestos exposure, each of the contributing causes can be compared and the harm apportioned on that basis.”).

Id. at 173.

The dissent saw clearly that the characterization of apportionment in New Jersey law, relied upon by the intermediate appellate court, was not a mere matter of opinion. The majority of the Court of Appeals was wrong, as a matter of fact, in claiming that apportionment of damages in New Jersey was based upon fault. Id. at 174, citing Poliseno v. General Motors Corp., 328 N.J.Super. 41 55-56, 744 A.2d 679, 687-88 (2000), for clear distinguishing between apportionment based upon causation as opposed to fault.

The dissent also called out the majority for the disturbing partisanship in adopting plaintiffs’ lawyers’ and plaintiffs’expert witness’s opinions on apportionment, without any consideration of the excluded expert witness’s contrary opinions. See Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envt’l L. 549, 555 (1995) (cited by dissenters for his conclusion that “[i]f the plaintiff’s asbestos exposure and his smoking are both shown to be causal factors in the plaintiff’s lung cancer, then the loss is necessarily capable of apportionment on the basis of the relative risks demonstrated for each kind of toxic exposure.”).

The Carter case comes about a year after the Court of Appeals reversed a careful opinion of the Special Court of Appeals, and held that plaintiffs’ expert witnesses may testify that each exposure, however small, represents a substantial contributing factor to a plaintiff’s asbestos-related disease. Dixon v. Ford Motor Co., 433 Md. 137 (2013). Science seems not to play well in asbestos cases before the high court of Maryland.

[1] Apparently, the Trust was inappropriately named a Settlement Trust, probably by plaintiffs’ counsel creditors who had apparently hoped it would simply be a cash delivery device.

[2] Colleen K. O’Brien, “Trial Court Erred by Excluding Defense Expert Testimony on Cigarette Smoking As Contributing to Plaintiff’s Lung Cancer” (May 2013); Arlow M. Linton, “Maryland: Failure to Allow Apportionment of Causes of Lung Cancer is Reversible Error” (Oct. 28, 2013).

[3] Colleen K. O’Brien, “Trial Court Properly Excluded Defense Expert Testimony on Cigarette Smoking as Contributing to Plaintiff’s Lung Cancer in Asbestos Case” (Aug. 19, 2014).

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