Case Bulletin – The Supreme Court of Ohio Rejects “Cumulative-Exposure Theory” in Asbestos Litigation
On January 28, 2018, in Schwartz v. Honeywell International, Inc., 2018 WL 793606 (Ohio 2018), the Supreme Court of Ohio held: (1) in cases where injuries are alleged from asbestos exposure, a plaintiff must show that exposure to a particular defendant’s product was a “substantial factor” in causing the injury under R.C. 2307.96, and a plaintiff may not establish such exposures through a cumulative-exposure theory, which postulates that every non-minimal exposure is a substantial factor; and (2) the evidence presented by plaintiffs in the instant case was insufficient to demonstrate exposure to the defendant’s product was a substantial factor in causing the injury.
Plaintiffs commenced a lawsuit against various defendants after Kathleen Schwartz contracted mesothelioma and died. Plaintiffs’ allegations of Ms. Schwartz’s exposure to asbestos was primarily through her father while she was growing up in the family home. Plaintiffs alleged that Ms. Schwartz’s exposure to asbestos through her father was from his employment as an electrician and performing five to ten brake jobs in the garage of the home when she was growing up. At trial, the only remaining defendant in the case was Honeywell International, Inc., successor-in-interest to Bendix (“Honeywell”). The main issue at trial was whether Ms. Schwartz’s exposure to asbestos from Bendix brakes was a substantial contributing factor in causing her mesothelioma. There was evidence that Ms. Schwartz’s father was exposed to asbestos over a 33-year period while he was employed as an electrician. There was also evidence that Ms. Schwartz’s father used asbestos-containing Bendix brakes for five to ten brake jobs while Ms. Schwartz lived in the family home. Plaintiffs’ expert and pathologist testified that there was no known threshold of asbestos exposure “at which mesothelioma will not occur.” He opined that both the exposure to her father’s work clothing and the brake dust in the garage and her father’s clothing after the brake changes, were substantial contributing factors in her development of mesothelioma. He specified that the exposure to the brake dust was non-minimal and her cumulative exposure caused her mesothelioma. The jury ultimately found Honeywell 5% responsible to Plaintiffs. Honeywell appealed requesting a motion for a directed verdict based upon the evidence to the Eight District Court of Appeals. The District Court denied Honeywell’s motion. Honeywell then appealed to the Supreme Court of Ohio (the “Court”), requesting that the Court reject the cumulative-exposure theory as insufficient to establish that a particular defendant’s product was substantial factor under R.C. 2307.96.
The Court began its analysis with a brief discussion on the history of asbestos case law and R.C. 2307.96. Prior to its enactment, Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), was the law governing multi-defendant asbestos cases. Notably, Horton required a plaintiff to show that the exposure to a defendant’s product was a substantial factor in causing the asbestos-related injury. Additionally, the Horton Court rejected the Lohrmann test, articulated in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), which would have required a plaintiff to present evidence of manner, frequency and proximity to survive a defendants’ motion for summary judgment. The Ohio General Assembly disagreed with the Horton Court and codified a version of the Lohrmann test under R.C. 2307.96 fourteen years later. Under R.C. 2307.96, a plaintiff must establish that the acts or omissions of a particular defendant was a substantial factor in causing the injury. In so doing, a plaintiff must establish manner, proximity, frequency and length of plaintiff’s exposure as to a particular defendant. The legislature did not define “substantial factor”.
In its analysis of this case, the Court noted that Plaintiffs’ expert opined that Ms. Schwartz’s exposures to Bendix brakes “contributed to her cumulative exposures to asbestos fibers which ultimately was the cause of her mesothelioma.” His theory was that any non-minimal exposure to asbestos was causative to her injury. The Court found this theory incompatible with the plain language of R.C. 2307.96 for several reasons. First, this theory does not examine a particular defendant, but rather examines defendants in the aggregate. Second, the cumulative-exposure theory in its essence is at odds with the manner, proximity, length and duration of exposure requirements to establish causation. Next, it fails to consider the relationship different exposures may have had to the overall dose to which a plaintiff is exposed. Finally, the Court points out that the expert’s opinion, that any non-minimal exposure is causative, is contradictory to the cumulative-exposures theory itself because it draws a line of demarcation based upon exposures, which is similar to requirements under R.C. 2307.96, but draws the line in a different place than that of the statute. The Court also noted that several other courts and jurisdictions have rejected the cumulative exposure theory. The Court agreed with Honeywell, and held that a theory of causation based only on cumulative exposures to asbestos is insufficient to demonstrate that the exposure to asbestos from a particular defendant’s product was a “substantial factor” under R.C. 2307.96.
The Court then turned to decide whether the evidence presented at trial was sufficient to establish causation as to Honeywell under the standards set forth in R.C. 2307.96, requiring manner, proximity, frequency, and length of exposures. The Court concluded that based upon the evidence in against Bendix in this case, and compared the other substantial occupational exposure from Ms. Schwartz’s father and Plaintiffs’ expert’s testimony, Plaintiffs failed to establish Ms. Schwartz’s exposures to asbestos from Bendix brakes was a substantial factor in causing her mesothelioma. The Court reversed the Eighth District Court of Appeals and granted Honeywell’s motion for a directed verdict. A concurring opinion was filed by Justice Fischer. Additionally, Justice O’Neill filed a dissenting opinion.
