“Each and Every Exposure” to Asbestos Accepted as Substantial Factor By Ohio Eighth District Court of Appeals

Posted on May 31st, 2016 by sutteroconnell

Would a leaking fire hydrant in the lower 9th Ward of on August 29, 2005, be considered a substantial cause of the flooding that resulted from Hurricane Katrina?  No, of course not!  Technically, it may be a cause of Hurricane Katrina flooding, but it is certainly not a substantial cause of the devastation that resulted.

The legal debate over whether each and every exposure to asbestos is a substantial factor in the cause of mesothelioma has been long debated by the plaintiffs and the defense bar. Plaintiffs contend there is no safe level of exposure to asbestos, and therefore each and every exposure contributes to disease.  Defendants assert that exposure to asbestos is a dose-related disease, and that exposure below background does not contribute to disease.  The Eighth District Court of Appeals in Cleveland addressed this issue in a recent appeal in the Kathleen Schwartz case.

Decedent Kathleen Schwartz died from peritoneal mesothelioma in 2012. Plaintiff alleged she was exposed to asbestos through her father’s work with asbestos-containing products as an electrician and doing automotive repair work in the garage of their family home.  Arthur Webber, the decedent’s father, was employed at Pennwalt Corporation as an electrician from 1963 until his retirement in 1996.

During the eighteen years the decedent lived in the family home, Mr. Webber performed five automotive brake jobs over the eighteen year period that decedent lived at home using Bendix brake linings, which allegedly contained chrysotile asbestos. Decedent never helped Mr. Webber perform a brake job, or was even in proximity to him at the time of the work; however, the claim was that her contact with his clothing, either directly or by assisting with the family laundry, was a substantial factor in causing her peritoneal mesothelioma.

At trial, where the sole defendant was Honeywell/Bendix, Plaintiffs’ experts Dr. Joseph Guth (CIH) and Dr. Carlos Bedrossian (pathologist) were permitted to offer trial testimony that an individual’s total and cumulative exposure to asbestos, from any and all products, containing any and all fiber types is a significant contributing factor to the development of mesothelioma.  Drs. Guth and Bedrossian testified that decedent’s father’s non-occupational work with Bendix brakes created a sufficient level of dust such that it substantially contributed to increasing decedent’s risk for developing peritoneal mesothelioma.

After an 11 day trial, the jury returned a verdict for plaintiff and awarded total damages of $20.2 million, but only assigned five percent of the liability to Honeywell/Bendix. Final judgment against Honeywell/Bendix was $1 million plus post-judgment interest and court costs.  On May 26, 2016, the Eighth District Court of Appeals in Cleveland affirmed the judgment in favor of Plaintiffs.,[1]

On appeal, Bendix challenged the “each and every exposure” opinions espoused by Drs. Guth and Bedrossian. Prior to trial, Bendix filed a motion in limine which sought to exclude the Dr. Guth’s testimony that decedent’s exposure to Bendix brakes increased her risk of developing mesothelioma.  In response to Bendix’s motion in limine, the trial court conducted a Daubert hearing prior to the commencement of trial.  At the hearing, Dr. Guth testified that he conducted a “qualitative assessment” of decedent’s exposure to brake dust.  Dr. Guth’s “qualitative assessment” did not provide an actual exposure level or dose for any product or exposure, but instead provided an “indication” that asbestos was present.  Dr. Guth could point to no known or accepted scientific reference or basis for his “qualitative assessment” methodology – the concept he supposedly relied upon was one entirely of his own making with no objective testing or peer-reviewed publication behind it.  The trial court denied the motion in limine to exclude Dr. Guth’s testimony.  Bendix filed a similar motion in limine regarding Dr. Bedrossian that was also denied by the trial court.  Dr. Bedrossian testified that there is no known threshold of asbestos exposure at which mesothelioma will not occur in people.  Dr. Bedrossian testified that it takes cumulative exposures above background to cause mesothelioma.

The Eighth District disagreed with Bendix, and found that the record reflected that Dr. Guth’s testimony included a review of numerous publications supporting his opinions. The Court even went so far as to note that had there been a lack of peer review of general acceptance by the scientific community, those are not prerequisites to admissibility: As recognized in Walker, ‘an expert’s opinion need not be generally accepted in the scientific community to be sufficiently reliable” and “[e]ven a novel or controversial opinion may be reliable if founded on a proper methodology.”  Moreover, the Eighth District did not believe Dr. Bedrossian’s opinion was premised on the “each and every exposure” opinion.  Rather, the Court suggested that a de minimis exposure to asbestos could cause mesothelioma based on testimony that each significant exposure to asbestos could be a cause.

Ohio law applies a substantial factor test that considers the manner, proximity, and frequency of exposure to establish causation in asbestos cases. (R.C. 2307.96(B)).  Based on the Court’s decision in Schwartz, exposure to the dust on her father and his clothes from five brake jobs over a period of eighteen years was a substantial factor in the development of decedent’s mesothelioma.  This outcome is a departure from recent legal precedent in Cuyahoga County, which has invalidated the “each and every exposure” opinion where the plaintiff cannot prove that a specific defendant’s product released asbestos fibers into the plaintiff’s breathing zone.  The Schwartz opinion by the Eighth District is only binding in Cuyahoga County.  Federal courts in Ohio have abrogated the “each and every exposure” opinion in asbestos cases. See Lindstrom v. AC Products Liability Trust, 424 F.3d 488 (6th Cir. 2005).

Click here for the full text of the opinion.

[1] The Eighth District Also held that the trial court committed reversible error by granting a directed verdict against Plaintiffs on their claim for punitive damages and remanded the case back to the trial court to conduct a new trial on the issue of punitive damages.