E-Alert Case Updates

Trial Court Erred by Excluding Defense Expert Testimony on Cigarette Smoking As Contributing to Plaintiff’s Lung Cancer

Wallace & Gale Asbestos Trust v. Carter
No. 2018 (Maryland Court of Special Appeals, May 2, 2013)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Defendant/Appellant, the Wallace & Gale Settlement Trust (“Wallace & Gale”), appealed verdicts rendered against it by a jury sitting in the Circuit Court for Baltimore City, as to claims of survival and wrongful death in four cases consolidated for trial. One of the issues on appeal was whether the circuit court erred in the Hewitt case by rejecting an allocation of damages according to the respective harm caused by smoking and asbestos exposure. The intermediate appellate court concluded that the trial court did err on this issue, and reversed and remanded the case for a new trial.

Plaintiff’s decedent, Hewitt, smoked approximately one-half to one pack of cigarettes per day from approximately 1943 to approximately 2008. Hewitt was a crane operator who worked at Bethlehem Steel from 1946 to the late 1970s. He was diagnosed with lung cancer in October 2008, and died on December 20, 2008, at eighty-one (81) years old. At trial, Dr. Steven Zimmet testified that asbestos exposure was a substantial contributing cause to Hewitt’s lung cancer, and smoking was also a cause of Hewitt’s lung cancer, but he could not differentiate “which caused what” because the two exposures were “not just additive; they are synergistic which means they multiply exposures.” Wallace & Gale’s counsel requested that the circuit court permit apportionment of damages, based on the opinion of its expert, Dr. Gerald R. Kerby. Dr. Kerby was of the opinion that Hewitt’s smoking history contributed 75% to his death while his asbestos exposure contributed 25% to his death. The circuit court excluded Dr. Kerby’s testimony concerning apportionment of damages. No question about apportionment between asbestos and smoking was included on the verdict sheet. The jury returned a $2,686,686.07 verdict in the Hewitt case. The verdict was reduced after application of the cap on non-economic damages, bankruptcy settlement payments, and joint tortfeasor credit for appellant’s cross-claims against another defendant (i.e. pro rata share allocation), with the total judgment being $1,325,495.95.

Wallace & Gale appealed and again argued that Dr. Kerby should have been allowed to testify as to the apportionment of damages between smoking and asbestos exposure. Plaintiff argued that Hewitt suffered one indivisible lung cancer injury, and that the circuit court properly rejected what was, in essence, a comparative fault argument that is impermissible in Maryland which is a contributory negligence state.

In writing for the Court of Special Appeals, Judge Watts began by stating that the issue of apportionment concerns causation, not comparative negligence. The Court held that the trial court erred by not accepting the defense expert’s testimony that cigarette smoking was a contributing cause of the plaintiff’s injury/death, and to further preclude testimony that the damages awarded should have been apportioned with 75% due to cigarette smoking and 25% to his asbestos exposure. The Court held that “the circuit court erred in the Hewitt case in refusing to instruct the jury as to apportionment of damages and by excluding Dr. Kerby’s testimony on the issue of apportionment.” Specifically, “[a]ccording to appellant’s proffer, had Dr. Kerby been permitted to testify, he would have rendered the opinion that occupational exposure to asbestos and cigarette smoking were substantial contributing factors to Hewitt’s lung cancer, and that the ratio of relative risk for each to the development of lung cancer was three to one, cigarette smoking to asbestos. Dr. Kerby would have testified that Hewitt’s cigarette smoking contributed 75% toward his lung cancer and that Hewitt’s occupational exposure to asbestos contributed 25% toward his lung cancer.” The preclusion of this evidence was error, as was the exclusion of this from the verdict sheet. The Court reversed the judgment against Wallace & Gale and remanded the case for a new trial.