In a decision allowing expert testimony that each and every exposure to asbestos is a substantial contributing factor to mesothelioma, Maryland's highest court provided a foundation for policyholders that could eliminate the carrier's regular attempt to relitigate "medicals" in the follow-on coverage litigation. Despite arising in the underlying case, the expert testimony supports a continuous trigger for insurance purposes.
The Maryland case involved allegations of "take home" asbestos. At least two evenings per week for ten months each year over a 13-year period, Bernard Dixon worked at a garage owned by a friend. Performing brake maintenance, repair, and replacement work, Dixon handled an estimated 1,000 brake jobs on Ford products from the 1960s until 1976 – all of which contained chrysotile asbestos.
Before washing the clothes Bernard wore to work, his wife Joan would shake them out, releasing the asbestos-laden dust that clung to them. She died of mesothelioma in 2009. At trial against Ford, Dr. Laura Welch testified on behalf of Joan's estate that every exposure to asbestos increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing cause of that disease.
Dr. Welch told the jury that the asbestos fibers shaken off of clothing remain on the floor and in the air for a considerable period of time. One day's worth of fibers can produce ongoing exposure for days, even months, she testified, as the fibers do not dissolve or evaporate.
In that underlying case, the insured company, Ford, sought to limit its potential liability and argued against the credibility of the expert's testimony.
The court concluded that the hypotheses supplied to her "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."
For purposes of insurance coverage, despite its objection to the validity of the plaintiff's expert testimony, Ford or any other policyholder faced with a similar dilemma should be allowed to pursue coverage on the plaintiffs' expert theory without relitigating the issue in the coverage case.
To read the decision in Dixon v. Ford Motor Company, click here.
Why it matters: Insureds seeking coverage for a continuous injury can point to the testimony by the expert in the underlying case. In the coverage context the insured should not have to adopt the expert's conclusion or otherwise prove the underlying case against itself in order to prove coverage. It should be enough that the alleged injured plaintiff relied on expert evidence and either a trial adopted that evidence or the insured settled when confronted with such evidence. Similarly, the insurance companies should not be allowed to relitigate the medicals in the coverage case in order to re-argue the nature of the alleged injury so they can attempt to restrict coverage.