“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.”

Justice DeWine, Majority Opinion

On February 8, 2018, the Supreme Court of Ohio handed down a merit decision in Schwartz v. Honeywell Internatl., Inc., 2018-Ohio-474 (According to the Reporter’s Note, the case was actually decided on January 24, 2018, while Justice O’Neill was still on the Court, but released on February 8, 2018, after O’Neill had left the Court.) In a 6-1 opinion written by Justice DeWine, in which Justice Fischer concurred in judgment only with an opinion, and Justice O’Neill dissented, the Court found that the evidence presented to the jury in this mesothelioma death case was not sufficient to show that exposure from Honeywell’s product was a substantial factor in causing Kathleen Schwartz’s mesothelioma. The case was argued October 17, 2017.

Case Background

Kathleen Schwartz died from mesothelioma, a disease that is almost always caused by breathing asbestos fibers. Kathleen’s exposure was mostly from the asbestos fibers from her father’s work clothes, which she helped wash.  Her father was an electrician.  He testified that he was exposed to asbestos dust every day at work, and that after work he would pick Kathleen up from school and play with his children without changing his clothes.

In addition to his job as an electrician, Kathleen’s father changed the brakes on the family cars, using Bendix products.  He did this in the family garage, five to ten times during the 18 years Kathleen lived there.  Kathleen and her siblings went through the garage to the backyard where they would play.  And her father would play with them after changing the brakes without changing his clothes. While Kathleen helped wash her father’s work clothes, there was no specific evidence that she helped wash these clothes.

After Kathleen’s death her husband Mark Schwartz (“Schwartz”) filed suit against a number of defendants. Eventually, the case went to trial only against Honeywell International, successor-in-interest to Bendix. During the trial, Honeywell twice moved for a directed verdict on the ground that Schwartz failed to establish that Kathleen’s exposure to asbestos from Bendix brakes met the substantial factor test of causation codified at R.C. 2307.96. The court denied Honeywell’s motions. The jury found Honeywell five percent responsible for Kathleen’s injuries. The court entered final judgment consistent with the jury’s verdict for Schwartz in the amount of $1,011,639.92.

On appeal, the Eighth District found the expert testimony that  Kathleen’s cumulative exposure was the cause of her mesothelioma was based on reliable scientific evidence, and that reasonable minds could have found in Schwartz’s favor on the causation issues. The appeals court affirmed the denial of Honeywell’s motions for a directed verdict.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 2307.96 (Asbestos Claim—Multiple Defendants—Substantial Factor Test; adopting Lohrmann test) (If a plaintiff in a tort action alleges any injury or loss resulting from exposure to asbestos as a result of the tortious acts of one or more defendants, in order to maintain a cause of action against any of the defendants the plaintiff must prove that the conduct of that particular defendant was a substantial factor in causing the injury or loss. This may be shown by the manner, proximity, and frequency of exposure along with any additional mitigating or agitating factors.)

Restatement of the Law 2d Torts, Section 433 (1965) (When determining whether an actor’s conduct is a substantial factor resulting in the alleged harm, courts should consider three factors. These factors include the number of other factors for the harm and the extent or effect they have in producing it; whether an actor’s conduct creates an actively harmful operation or whether such an activity is harmless unless acted upon by other factors not under the control of the actor; and lapse of time.)

Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (The use of frequency, regularity, and proximity as factors in determining whether exposure to particular products constituted a substantial factor was reasonable. To support such reasonable inferences there must be evidence of exposure to a specific product on a regular basis, over some extended period of time, in proximity to where the plaintiff worked [or lived].)

Krik v. Exxon Mobil Corp., 870 F.3d 669, 677 (7th Cir.2017) (Under the cumulative exposure theory and the “each and every exposure” theory, it is impossible to determine which exposure to carcinogens, if any, caused an illness; both theories rely on all exposures to constitute a cumulative dose rather than any particular dose or exposure to asbestos.)

In re New York City Asbestos Litigation, 148 A.D.3d 233 (2017) (Cumulative exposure theory is irreconcilable with the requirements to present some quantitative information to assess the amount, frequency, and duration of exposure to determine whether exposure was sufficient to constitute a contributing factor of the disease.)

Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir.2009) (It is impermissible to consider each and every exposure to asbestos to be a substantial factor causing the disease. To take this approach would render the substantial factor test meaningless.)

Merit Decision

Executive Summary

The Court adopts Honeywell’s proposed proposition of law:

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.

Analysis

Causation in Multiple Exposure Cases

Before R.C. 2307.96 was enacted, a plaintiff had to prove exposure to the defendant’s product for each defendant in a multi-defendant asbestos case, and that the product was a substantial factor in causing the plaintiff’s injury. The case that held that, Horton v. Harwick Chemical Co., also considered, but declined to adopt, the manner-frequency-proximity test developed in Lohrmann v. Pittsburgh Corning Corp., as overly burdensome to plaintiffs.

Nine years later, the Ohio legislature adopted the Lohrmann test. Pursuant to R.C. 2307.96, a plaintiff must now prove that the conduct of a particular defendant was a substantial factor in causing the plaintiff’s injury. In doing so, the trier of fact must consider the manner, proximity, frequency and length of the plaintiff’s exposure to asbestos.  But “substantial factor” is not specifically defined.

Cumulative Exposure

The majority opinion sets forth a number of problems with the cumulative exposure theory, but its death-knell is that it is incompatible with R.C. 2307.96. And it fails to take into account other exposures that might have caused the harm.

Dr. Carlos Bedrossian, Schwartz’s causation expert, testified that Kathleen’s exposure to Bendix products “contributed to her cumulative exposure to asbestos fibers which ultimately was the cause of her mesothelioma.

Not good enough, says the majority. The statute requires an individualized finding of substantial causation for each defendant. The cumulative-exposure theory is incompatible with that. It is also at odds “with the statutory requirement that substantial causation be measured based on the manner, proximity, length, and duration of exposure.” Dr. Bedrossian’s opinion completely disregarded that

“In enacting R.C. 2307.96, the General Assembly demanded a showing greater than an undefined contribution to a total cumulative exposure that resulted in injury,” wrote DeWine.

Applying the Factors to Kathleen Schwartz’s Mesothelioma

The court applied the manner, proximity, frequency and length factors and determined there was insufficient evidence to prove that Kathleen’s exposure to Bendix brakes was a substantial factor in her contracting mesothelioma.

The only evidence of manner of exposure or of proximity was that Kathleen “might” have been exposed to asbestos fibers while walking through the garage while her father was doing a brake job, or through contact with her father’s clothes after one. There was no specific evidence of exposure tied to any specific brake job. As to proximity, there was also no evidence that Kathleen ever helped with any brake job. Finally, the evidence of frequency and length of exposure was quite limited—nothing more than a showing that Kathleen could have been exposed to asbestos from Bendix products on the five to ten occasions when her father  installed Bendix brakes in the family garage.

And finally, of significance to the majority, was the fact that Kathleen’s father came into contact with products containing asbestos at work as an electrician every day for 33 years, and would pick up and play with Kathleen without changing his work clothes—a strong contrast with the limited and irregular exposures Kathleen might have had because of the infrequent brake jobs. So, when considering Kathleen’s exposure from Bendix products, in relation to other factors that contributed to cause harm, Schwartz failed to prove that the exposure to asbestos was a substantial factor in causing her mesothelioma.

Bottom Line

Honeywell’s directed verdict should have been granted. Good-bye jury verdict.

Justice Fischer’s Position

While Justice Fischer agreed with the majority that the trial court should have directed a verdict in favor of Honeywell in this case, he doesn’t think the majority analysis sufficiently clarifies how courts should consider substantial factor causation in the future, so he concurred in judgment only.

Fischer agrees that the substantial factor-requirement is not met just by showing some non-minimal exposure that contributed to the plaintiff’s cumulative asbestos exposure. He also agrees that in this case, Schwartz failed to offer testimony connecting Kathleen’s exposure to asbestos from the Bendix brakes to her mesothelioma. But he doesn’t think the majority clearly differentiates an exposure that is a substantial factor from one that is an insubstantial factor.  He urges the legislature to amend the statute to provide a better definition of “substantial factor” as that term is used in R. C. 2307.96.

Justice O’Neill’s Dissent

Justice O’Neill wrote a solo dissent. He thinks the trial court properly denied Honeywell’s motions for a directed verdict, and that the testimony from Dr. Bedrossian and that of the family about Kathleen’s exposure was good enough to let the jury decide this issue.

Case Syllabus

None, although it certainly could have been Honeywell’s proposition of law which the Court adopted.

Concluding Observations

My notorious plaintiff’s heart reluctantly called this one for Honeywell. I thought the justices seemed more split than they ended up being, although it was clear that then-Justice O’Neill was going to dissent.

I wrote this after argument:

“Justices DeWine and French seemed to lean toward the defense position, very ably articulated by Honeywell’s counsel, that expert testimony is required to provide a link between the asbestos exposure and a particular defendant, Honeywell in this case, and that Schwartz’s expert never provided that, but only testified that cumulative exposure was the substantial factor here, which is not what the statute requires.” And so it went.