Earlier this year, I attended a trial in an asbestos personal injury case for the first time since I began working at KCIC and doing Claims Administration for companies with such liabilities. Though we see complaints come in each day and work closely with local counsel to get documentation and reporting in place, I had never attended an actual trial in person.
The case took place in Baltimore City, MD, and was brought by Peter Angelos’s firm. The plaintiff had an extensive smoking history and had been diagnosed with lung cancer and, later, with mesothelioma.
Being a Baltimore native, I’ve grown up seeing plaintiff’s firms advertise to potential asbestos plaintiffs. And the topic of synergy between asbestos, smoking and lung cancer is definitely a hot one, as noted before on our blog. Add to that my experience working in asbestos claims administration, billing and reporting, and I definitely arrived in the courtroom interested to see how things would play out.
Many plaintiff’s experts were called to the stand for questioning and then cross-examining by the defense. The plaintiff’s daughter testified, as well. The plaintiff’s main argument was around failure to warn — when the defendant first started posting warnings about asbestos exposure.
Once the plaintiff’s side rested their case, the defendant’s lawyers began. They had experts, as well as corporate representatives, lined up to testify.
However, before the defense started, we heard motions raised for the judge’s ruling. That’s when things got interesting. Most importantly, the defense attorneys won a motion for directed verdict on assumption of risk due to the plaintiff’s extensive smoking history. They argued that the plaintiff received multiple warnings on both the cigarette packaging and from his own union. Those warnings included cautions about the synergistic risks of developing lung cancer when someone both smokes and is exposed to asbestos. The defense witness’s own testimony that the plaintiff did not smoke around his family was also used to prove that he was aware of the risks and continued to smoke anyway.
In Maryland, assumption of risk completely bars recovery in cases like this, so the judge’s ruling essentially prevented this plaintiff from recovering any damages for claims that were due to his lung cancer. The case ended up settling favorably for the defendant — prior to arguing before the jury.
Baltimore City has several judges who are relatively new to asbestos litigation. Since this case, there has been another smoking lung cancer case in this jurisdiction where a different judge has also granted motion for Summary Judgment based on assumption of the risk and other, similar motions are still pending. In this jurisdiction, these precedents bode well for asbestos defendants in smoking lung cancer cases. It will be interesting to see how these rulings affect the outstanding lung cancer asbestos docket in Baltimore going forward.