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The Ohio Supreme Court Rejects Cumulative Exposure as Sufficient to Establish Substantial Factor in Asbestos CasesPDF
By Thomas R. Wolf
Numerous cases have been filed in courts across the United States alleging that exposure to defendants' asbestos-containing products caused various diseases, including mesothelioma, a rare cancer primarily linked to asbestos fibers. In most circumstances, plaintiff had been exposed to multiple asbestos-containing products, and sued multiple defendants, alleging each was responsible for the disease. In Ohio, in order to prove liability against a defendant, plaintiff is tasked with proving that each exposure was a substantial factor.
Over the years, plaintiffs' experts have provided opinions intending to establish liability for all defendants, regardless of the extent of potential exposure to the plaintiff. Plaintiffs’ experts have offered theories that “each and every fiber” was a substantial factor, relying on the theory to overcome their inability to quantify any particular exposure. Numerous courts rejected the “each and every fiber” theory, which led to an amended theory, whereby plaintiffs’ experts opine that it is the cumulative exposure of all asbestos fibers that leads to disease. Some federal and state courts have rejected the theory, and now the Ohio Supreme Court has formally rejected the theory in its opinion released on February 8, 2018 in the Schwartz v. Honeywell International, Inc. case, 2018-Ohio-474.
The Schwartz case had resulted in a verdict in excess of $20 million. The sole defendant remaining at the time of the verdict was Honeywell International, Inc., a successor in interest of Bendix Brakes. Honeywell was assessed five percent of the total verdict, resulting in an award of $1,011,639.92. Honeywell appealed the verdict, which was affirmed by the Eighth District Court of Appeals. Honeywell then appealed to the Ohio Supreme Court, who accepted for review one issue: “A theory of causation based only upon cumulative exposure to various asbestos-containing products is insufficient to demonstrate that a particular defendant’s product was a ‘substantial factor’ under R.C. 2307.96.”
As background, plaintiff Kathleen Schwartz contracted mesothelioma in her 40s, leaving behind a husband and four children. There was no evidence of direct exposure through her worksites, with the only evidence suggesting that plaintiff encountered asbestos fibers while cleaning her father’s clothes and while walking through the garage while her father was completing brake work on the family vehicles. The evidence suggested that Bendix brakes were used on five to ten brake jobs over an 18 year period while Kathleen lived at home with her parents. There was no evidence that Kathleen was involved in the actual brake jobs.
Plaintiff obtained an expert report from Dr. Carlo Bedrossian, an expert frequently used in the Ohio cases. Dr. Bedrossian offered the opinion that it was the cumulative exposure to asbestos fibers that was the cause of her mesothelioma, and that each defendant’s products added to the cumulative exposure, thus becoming a substantial factor. The Supreme Court rejected Dr. Bedrossian’s opinion, and reversed the judgment of the Court of Appeals and the trial court, and entered judgment in favor of Honeywell.
The court reviewed Dr. Bedrossian’s opinions in conjunction with the plain language of R.C. 2307.96. The court noted that Dr. Bedrossian’s theory is based upon two predicates. “First, as he testified, there is no known threshold for asbestos exposure ‘at which mesothelioma will not occur.’ Second, ‘it is impossible to determine which particular exposure to carcinogens, if any, caused an illness. In other words, * * * the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose’”. Krik v. Exxon Mobile Corp., 870 F. 3d 669, 667 (7th Circ. 2017). The court noted that the theory is incompatible with the statute, which requires, “an individualized determination for each defendant: there must be a finding the conduct of a ‘particular defendant was a substantial factor’ in causing plaintiff’s disease.” R.C. 2307.96(A). “But the cumulative-exposure theory examines defendants in the aggregate: it says that because a cumulative dose was responsible, any defendant that contributed to that cumulative dose was a substantial factor. It is impossible to reconcile a statutory scheme that requires an 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 court further analyzed the theory under the statutory requirement of reviewing the matter based on the manner, proximity, length and duration of exposure. The court quoted: “it is irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration and frequency of exposure to determine whether exposure was sufficient to be found a contributing cause of the disease.” In Re: New York City Asbestos Litigation, 148 A.D. 3D 233, 239, 48 N.Y.S. 3d 365 (217).
The court found two other faults with the theory. First, the court found that the cumulative-exposure theory does not consider the relationship of different exposures and their effect on the overall dose to which an individual was exposed. The court cited the Second Restatement and other case law, finding that “[w]hen causation is premised on the total cumulative exposure, a single exposure or set of exposures cannot be ‘considered a substantial cause’ of the disease unless that exposure or set of exposures had a substantial impact on the total cumulative exposure.” (emphasis sic) Haskins v. 3M Company, D.S.C. Nos. 2:15-CV-02086-DCN and 3:15-CV-0212-DCN 2017 WL 3118017, *7 (July 21, 2017).
Secondly, the court found that Dr. Bedrossian’s reliance upon only non-minimal exposures to be faulty. On one hand, Dr. Bedrossian asserts that all exposures contribute to the total cumulative dose, but he considers only non-minimal exposures. The court found there was no rational reason to exclude the minimal exposures, citing case law showing that minimal exposures may have a bigger cumulative impact than a single non-minimal dose. See Bostic v. Georgia-Pacific Corp., 439 S.W. 3d 332, 341 (Tex. 2014).
As this decision has just been issued, the fallout is yet unknown. Many of the pending cases in Ohio have opinions from Dr. Bedrossian that include the cumulative exposure theory. In at least one case, plaintiff’s counsel has requested their experts to quantify exposure for certain products in terms of light, moderate, heavy, extremely heavy. It is anticipated that plaintiffs’ experts’ future opinions will rely upon these categorizations in an effort to show that certain categories of exposures are sufficient to meet the substantial factor test. However, the status of the current cases is unknown, and will play out in the next few months.
This opinion will also provide a basis for challenging experts in other product liability cases. Ohio has not defined “substantial factor.” This case provides one more piece in analyzing the sufficiency of evidence and opinions where the plaintiff’s burden is to establish substantial exposure as a cause of injury.
If you would like a copy of the opinion or have any questions regarding any issue pertaining to toxic torts, please contact a member of our Environmental / Mass Tort / Class Action Practice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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