Case Bulletin – Ohio Appellate Court Reverses Trial Court’s Ruling As To Experts’ Testimony Regarding Asbestos Exposure
On May 5, 2016, the Court of Appeals of Ohio for the Eighth Appellate District, County of Cuyahoga, in Barbara Watkins, Individually and as Executor of the Estate of Glenn F. Watkins, deceased v. Affinia Group, et al., __ N.E. 3d __, 2016 WL 2587123 (Ohio. Ct. App. May 5, 2016) reversed the decision of the Cuyahoga County Court of Common Pleas permitting Plaintiff-Appellee’s experts to testify, over Defendant-Appellant’s objections in limine renewed at trial, that each and every exposure of asbestos is a substantial contributing cause of pleural mesothelioma.
Plaintiff-Appellee’s Decedent, Glenn Watkins, worked for various employers in various capacities including work in a production facility, home construction, and automotive repair from the 1950s to 2001. In January 2012, he was diagnosed with pleural mesothelioma, and thereafter, commenced suit in the Cuyahoga County Court of Common Pleas against Defendant-Appellant Honeywell International, Inc., as successor-in-interest to Bendix Corporation (“Honeywell”), as well as several other manufacturers of asbestos-containing products. Plaintiff-Appellee alleged, in part, that the Decedent was exposed to chrysotile asbestos in the brakes manufactured by Honeywell and that this exposure was the substantial cause of his disease.
All of the Defendants except Honeywell settled or were otherwise dismissed prior to trial. Plaintiff-Appellee’s two causation experts, Dr. James Strauchen and Dr. Arthur Frank, shared the opinion that Honeywell brakes were the substantial cause of the Decedent’s mesothelioma. Honeywell moved in limine to exclude Dr. Strauchen and Dr. Frank from testifying, or in the alternative, requested a Daubert hearing to examine the reliability of their opinions. Honeywell argued that the opinions of Dr. Strauchen and Dr. Frank were based on the “each and every exposure theory”, and thus, were not scientifically reliable. The trial court denied the motion without a Daubert hearing.
Honeywell moved for a directed verdict at the conclusion of Plaintiff-Appellee’s case-in-chief and again at the conclusion of the evidence arguing that Plaintiff-Appellee’s experts failed to prove the Decedent’s handling of Honeywell brakes caused his disease. The trial court denied the motion and the case was submitted to the jury who returned a verdict in favor of Plaintiff-Appellee. The jury apportioned fault to each of the named defendants and found that Honeywell was 40% liable to Plaintiff-Appellee.
On appeal to the Court of Appeals, Honeywell argued that the trial court erred by permitting Plaintiff-Appellee’s experts to testify, over objection, that the Decedent’s mesothelioma was caused by exposure to Honeywell brake dust. Honeywell contended that the experts’ testimony did not comply with either Evid.R. 702 or the Daubert standard for admissibility of evidence. The Court observed that the trial court should not accept an expert’s testimony at face value, but rather, it must independently examine and evaluate the reliability of each expert’s opinion pursuant to Daubert. The Court opined that the trial court should consider several factors including whether the theory or technique has been tested, whether it has been subjected to peer review, whether there is a known or potential rate of error, and whether the methodology has gained general acceptance.
Applying the Daubert standard, the Court found that the opinions of Dr. Stauchen and Dr. Frank were premised on the theory that every exposure to asbestos is a substantial contributing cause to the development of mesothelioma (the “each and every exposure theory”). The Court observed that Dr. Strauchen and Dr. Frank asserted that because asbestos disease is a cumulative, dose-responsive process, every exposure the person receives during his lifetime substantially contributes to the disease. The Court reasoned that while a causation expert need not identify a particular dose with mathematical precision, defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease must be demonstrated. The Court ruled that because the trial court did not hold a Daubert hearing, it could not independently examine and evaluate the reliability of Drs. Frank’s and Strauchen’s expert testimony. The Court held, therefore, that their testimony was admitted in error. Judgement was reversed and the case remanded.