Manion Gaynor & Manning LLP (MG+M) secured a key victory that will shape the future of asbestos litigation. MG+M partners Chris Massenburg and Jeanette Riggins, with assistance from associate Kevin Sloan, recently won a motion for directed verdict on assumption of risk in a smoking lung cancer and mesothelioma trial.
The case was tried before The Honorable Judge Pamela North in Baltimore City Circuit Court. Plaintiffs were represented by the Peter G. Angelos law firm, and MG+M teamed up with Tom Bernier and Brendan Fitzpatrick of Goldberg Segalla, as their local counsel. Plaintiffs presented their case at trial and called seven witnesses including a former co-worker, the daughter of the Decedent, and several expert witnesses in the fields of economics, medicine, cell biology, industrial hygiene, and state of the art.
During cross-examination, Massenburg and Riggins questioned Plaintiffs' witnesses regarding Plaintiff's medical history, specifically his 20-year history of smoking. Ultimately, Plaintiffs' medical experts conceded that the death was a result of both lung cancer and mesothelioma. Further, the same experts conceded that smoking was a substantial cause of the lung cancer, along with asbestos exposure. Smoking was not a contributing cause of the mesothelioma. Importantly, while under cross-examination, Plaintiff's former co-worker testified that the union to which they both belonged had passed along information to them regarding the hazards of smoking, its connection to lung cancer and the synergistic effects between asbestos and smoking. Further, Plaintiff conceded on cross-examination that her father never smoked around her as a child (1980s-90s), and that her mother and father always smoked outside of their house.
After Plaintiffs' case was complete, the defense moved for judgment as a matter of law that Plaintiff had assumed the risk of his lung cancer, and Judge North granted the motion. The team argued that Plaintiff knew and appreciated that cigarettes could cause lung cancer, yet voluntarily confronted the risk. Under Maryland law, assumption of risk serves as a complete bar to recovery of damages. The Court found that the evidence overwhelmingly indicated that Plaintiff was aware of the risks of smoking, and assumed the risk of the harm that comes from so doing.
Further, since the lung cancer was a primary cause of the death, most of Plaintiffs' other claims fell along with this ruling on assumption of risk.
This important victory will no doubt shape the future defense of asbestos-related lung cancer claims in Maryland, and possibly in other jurisdictions with similar laws. Defendants now have a compelling argument that any plaintiff who was a smoker and appreciated that smoking cigarettes could cause lung cancer, yet continued to smoke, assumed the risks of contracting lung cancer and is thus barred from recovering damages for his/her subsequent contraction of lung cancer.
About Manion Gaynor & Manning LLP
Manion Gaynor & Manning LLP provides innovative, aggressive representation for clients facing high-stakes litigation anywhere in the country. It is the law firm of choice for numerous Fortune 500 Companies and some of the most iconic brands in American business. The firm serves as National Coordinating Counsel, National Trial Counsel, Regional Counsel and Local Counsel for manufacturers, contractors, service providers, suppliers, professionals, premises owners, food services companies and retailers. With the requisite infrastructure to handle the most complex of cases, the firm is a recognized leader in products liability, complex tort and commercial litigation. Find us at mgmlaw.com.
