Asbestos Update: Ohio Supreme Court Rejects “Cumulative Exposure” Theory

Posted on February 8th, 2018 by Nathan F. StudenyNathan F. Studeny

Today,[1] the Ohio Supreme Court joined a growing wave of federal[2] and state courts[3] in resolving the heated legal debate over use of the “cumulative exposure” theory to prove causation in asbestos litigation.

In asbestos exposure cases, plaintiffs argue that a persons “cumulative exposure” to asbestos, a crafty spinoff of the “each and every exposure” theory, can satisfy their burden to prove a particular defendant’s asbestos-containing product was a “substantial factor” in causing disease. However, in Schwartz v. Honeywell Internatl., Inc., Slip Opinion No. 2018-Ohio-474, the Ohio Supreme Court flatly rejected this practice, concluding that a causation theory solely based upon a plaintiff’s “cumulative exposure” to asbestos is incompatible with the statutory requirement to prove causation in asbestos cases under Ohio law.

Decedent Kathleen Schwartz died from peritoneal mesothelioma in 2012, a form of cancer affecting the stomach lining. The plaintiffs alleged the disease was caused by exposure to asbestos-containing products through her father Arthur Webber’s work as an electrician and during “shade tree” automotive repair work in the family garage.

During the eighteen years Ms. Schwartz lived in the family home, Mr. Webber performed five to ten brake jobs using Bendix brake linings, which allegedly contained chrysotile asbestos. Ms. Schwartz never helped her father perform the repairs, nor was she ever in direct proximity to him during the work. Rather, the plaintiffs claimed Ms. Schwartz was exposed to “dust” generated from this brake work (1) by routinely using the garage to access the backyard and (2) through contact with her father’s work clothing, both directly and through assisting with laundry.

Honeywell, the successor to Bendix, was the remaining defendant at trial. The plaintiffs’ causation expert, Dr. Carlos Bedrossian (pathologist), opined that there is no known threshold of asbestos exposure “at which mesothelioma will not occur.” Dr. Bedrossian did not testify that Ms. Schwartz’s exposure to asbestos “dust” from Bendix brakes was a substantial factor in causing her disease. Instead, he merely opined that her “non-minimal” exposures to asbestos dust, including dust generated from Bendix brakes and the electrical products used by her father, were contributing factors to her “total cumulative dose” of asbestos exposure. According to Dr. Bedrossian, this “cumulative exposure” caused her mesothelioma.

Honeywell twice moved for a directed verdict, arguing that the plaintiffs failed to establish that Ms. Schwartz’s exposure to Bendix brakes was a substantial factor in causing her disease. The trial court denied both motions, and the jury returned a verdict for the plaintiffs and awarded total damages of $20.2 million, assigning five percent of the liability to Honeywell.

Honeywell appealed to the Eighth District Court of Appeals challenging the “cumulative exposure” theory posited by Dr. Bedrossian as both inadmissible and inconsistent with Ohio law.The Eighth District affirmed the verdict, finding the expert testimony was permissible and “based upon reliable scientific evidence.” The Eighth District also did not believe Dr. Bedrossian’s opinion was premised on the “each and every exposure” opinion as argued by Honeywell, but rather suggested that a de minimis exposure to asbestos could cause mesothelioma based on testimony that each significant exposure to asbestos could be a cause.

The Ohio Supreme Court reversed the Eighth District’s judgment. Sutter O’Connell attorney Douglas R. Simek participated in submitting an amicus curiae brief with the Ohio Supreme Court urging reversal on behalf of the Ohio Association of Civil Trial Attorneys.

Justice DeWine wrote on behalf of the majority, joined by Chief Justice O’Connor and Justices O’Donnell, Kennedy, and French. Ohio statutory law, R.C. 2307.96 makes clear that asbestos plaintiffs have the burden to establish that the conduct of each “particular defendant” was a substantial factor in causing the injury, which must be based on specific evidence of the manner, proximity, frequency, and length of exposure. Comparing the plain language of the statute with Dr. Bedrossian’s “cumulative dose” theory, which “examines defendants in the aggregate,” the majority found the two completely incompatible. The majority found it “impossible to reconcile a statutory scheme that requires and individualized finding of substantial causation for each defendant with a theory that says every defendant that contributed to the overall exposure is a substantial cause.”

The majority also found that the “cumulative dose” theory (whereby all unquantified, non-minimal exposures contribute) ignored the manner, proximity, frequency, and length of exposure requirement of the statute. The cumulative dose theory “does not consider the relationship that different exposures may have to the overall dose to which and individual is exposed.” Noting the theory only considered non-minimal, above background exposures, the majority found “no rational reason to exclude even minimal exposures, because they also contribute to the cumulative dose.” Beyond the statutory framework, the majority further found credence in numerous cases from courts around the country that have rejected the causation theory set forth by Dr. Bedrossian.

After rejecting Dr. Bedrossian’s “cumulative exposure” theory, the Court considered the remaining evidence offered about Ms. Schwartz’s exposure to Bendix brake dust. The evidence was insufficient. Considering the manner, proximity, frequency, and duration of Ms. Schwartz’s exposures to Bendix brake dust, in relation to “‘other factors which contribute in producing the harm,’” specifically the regular exposure to dust from electrical brake products that her father worked with every day, the majority concluded that Plaintiffs failed to meet their burden of establishing that Schwartz’s exposure to Bendix products was a substantial factor in causing her mesothelioma.

In a separate opinion, Justice Fischer concurred with the judgment of the majority only and sought more guidance in defining the term “substantial factor.” Justice Fischer called upon the General Assembly to consider amending the statute to provide clearer direction to the courts.

In a separate dissenting opinion, former Justice O’Neill would have affirmed the decision of the Eighth District. He challenged the majority’s rejection of Dr. Bedrossian’s expert opinion and further challenged the weighing of the evidence by the majority to conclude that the Plaintiffs failed to meet their burden of proof on substantial factor causation under the statute, which he saw more fit to be weighed by the jury and not by the Court.

Click here for the full text of the opinion.

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[1] The Slip Opinion notes that the Schwartz case was decided on January 24, 2018, but was publically released today. Former Justice O’Neill, who participated in the decision, resigned from the bench on January 26, 2018 and is presently running as a candidate for Governor of Ohio.

[2] See, e.g. Krik v. Exxon Mobil Corp., 870 F.3d 669 (7th Cir. 2017); McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170 (9th Cir. 2016); McMunn v. Babcock & Wilcox Power Generation Grp., Inc., 869 F.3d 246 (3rd Cir. 2017); Wannall v. Honeywell Int’l, Inc., 292 F.R.D. 26 (D.D.C. 2013), aff’d, 775 F.3d 425 (D.C. Cir. 2014); Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005); Bell v. Foster Wheeler Energy Corp., No. 15-6394, 2016 U.S. Dist, LEXIS 137547 (E.D. La. Oct. 6, 2016), recon. denied, 2017 U.S. Dist. LEXIS 31117 (E.D. La. Mar. 6, 2017); Suoja v. Owens-Illinois, Inc., 211 F.Supp3d 1196 (W.D. Wis. Sept. 30, 2016).

 [3] See, e.g. Juni v. A.O. Water Products, 48 N.Y.S.3d 365 (N.Y. App. Div. 2017); Crane Co. v. DeLisle, 206 So.3d 94 (Fla. Dist. Ct. App. Nov. 9, 2016); Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216, 226 (Pa. 2007); Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007); Betz v. Pneumo Abex LLC, 615 Pa. 504, 44 A.3d 27, 58 (Pa. 2012); Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014); Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286 (Ga. 2016).