United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
a tort action for the cost of removing asbestos-containing materials, an underlying question remains whether exposure to asbestos is harmful to human health. In addition, despite the defendant's characterization
of the Smith testimony as concerning only the hazards of occupational exposure to high levels of asbestos, the scope of the Smith deposition actually went much further. See Matter of Johns-Manville/Asbestosis Cases, 93 F.R.D. 853, 856 (N.D. Ill. 1982) (noting that the Smith deposition was "much broader than J-M defendants would have it"). Dr. Smith testified not only to the various asbestos-related diseases occurring among Johns-Manville employees, but also to the potential danger posed to the bystander population. Such testimony would be expected to prompt extensive cross-examination on the probability of non-occupational risk. The DeRocco defendants, then, had the same motive as Asbestospray to subject Dr. Smith to searching cross-examination. The trial court did not err in admitting the Smith deposition.
F.
We now turn to the defendant's argument that the trial court should not have admitted into evidence the testimony of Mr. R. Hatfield and Dr. W. Longo regarding their use of surface dust sampling to determine the level of asbestos contamination inside those City buildings at issue in this case. Asbestospray contends first that the method by which surface dust is sampled and analyzed to establish asbestos concentrations is not generally accepted as reliable within the scientific community, and additionally, that the admission of expert testimony on the dust sampling results misled the jury. We disagree.
The law is well settled in Maryland that, in order for expert testimony based on the application of a new scientific technique ordinarily to be admissible, the underlying scientific technique must be "generally accepted as reliable within the expert's particular scientific field." Reed v. State, 283 Md. 374, 381, 391 A.2d 364, 368 (1978), citing Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (D.C. Cir. 1923). See, e.g., State v. Metscher, 297 Md. 368, 374, 464 A.2d 1052, 1055 (1983); Grimes v. State, 297 Md. 1, 2-3, 464 A.2d 1065, 1066 (1983); State v. Collins, 296 Md. 670, 678-681, 464 A.2d 1028, 1032-1034 (1983); Eley v. State, 288 Md. 548, 553-554, 419 A.2d 384, 387 (1980); Kelley v. State, 288 Md. 298, 302, 418 A.2d 217, 219-220 (1980); Thompson v. Thompson 285 Md. 488, 497, 404 A.2d 269, 274 (1979), appeal dismissed, 444 U.S. 1062, 100 S.Ct. 1002, 62 L.Ed.2d 745 (1980).
In arguing that the dust sampling method is "fraught with shortcomings that invalidate the procedure as a reliable scientific method," the defendant seems to urge that this Court conduct an independent scientific evaluation of the dust sampling process. By adopting the Frye test in Reed v. State, supra, however, we sought to avoid the "trial of the technique itself" which the defendant now presses. 283 Md. at 388, 391 A.2d at 371-372. Rather, the pertinent inquiry in deciding whether to admit the dust sampling testimony will be whether the methods used to determine the level of asbestos contamination in dust are generally accepted in the scientific field.
In examining the record in the instant case, judicial opinions which have considered this question, and the available scientific commentary, see Reed v. State, su
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