Oral Argument Preview: Court Tackles Substantial Factor Causation in Asbestos Exposure Case. Mark Schwartz, Individually and as the Executor of the Estate of Kathleen Schwartz, et al. v. Honeywell International, Inc. et al.

Read the analysis of the oral argument here.

On October 17, 2017, the Supreme Court of Ohio will hear oral argument in the case Mark Schwartz, Individually and as the Executor of the Estate of Kathleen Schwartz, et al. v. Honeywell International, Inc. et al. 2016-1372. At issue in the case is whether sufficient evidence was presented to show “substantial factor” causation under R.C. 2307.96

Case Background

In 2012, Kathleen Schwartz (“Kathleen”) died as a result of peritoneal mesothelioma allegedly from secondary exposure to asbestos-containing products. Kathleen’s father, Arthur Webber (“Webber”), was an electrician, and regularly repaired and maintained the brakes on family vehicles. Both of these activities exposed Webber to asbestos and asbestos-containing products. Webber testified that he always used Bendix replacement brakes when working on family vehicles. Honeywell International, Inc. (“Honeywell”) is the successor-in-interest to the Bendix Corporation. Webber’s children, including Kathleen, were exposed to asbestos through interactions with Webber during or after he finished working.

Mark Schwartz filed this action individually and as Executor of the Estate of Kathleen Schwartz and as legal guardian of his minor children. (For simplicity, “Schwartz”) (One adult child is also a plaintiff in the case.) Schwartz claims Kathleen developed peritoneal mesothelioma from exposure to asbestos and asbestos related products by virtue of Webber’s profession and automotive repair work using Bendix products.

Pertinent to this appeal, during trial, at which Honeywell was the only remaining defendant, Honeywell moved for a directed verdict on the ground that Schwartz failed to establish general or specific causation. The court denied Honeywell’s motion. The court granted a directed verdict on Schwartz’s claim for punitive damages. The jury rendered a verdict for Schwartz in the total amount of $20,232,798.21 and found Honeywell five (5) 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. Honeywell challenged the denial of its motion for a directed verdict and the denial of its motion in limine to exclude the testimony of Schwartz’s expert certified industrial hygienist and expert pathologist as lacking reliable scientific support. Schwartz cross appealed to challenge the ruling on the directed verdict for punitive damages.

On appeal, the Eighth District, in a unanimous opinion written by Judge Sean Gallagher, and joined by Judges Keough and Celebrezze, found the trial court had acted properly by allowing Schwartz’s experts to testify pursuant to Evid.R. 702. The Eighth District also found that Schwartz introduced evidence of the manner, proximity, and frequency with which Kathleen was exposed to asbestos via Bendix brakes and reasonable minds could have found in Schwartz’s favor on the causation issues. Finally, in an issue not before the Supreme Court of Ohio, the Eighth District reversed the trial court’s determination regarding punitive damages.

Votes to Accept the Case

Yes:  Justices DeWine, Fischer, Kennedy, and French.

No: Chief Justice O’Connor, and Justices O’ Donnell and O’Neill

Key Statutes and Precedent

R.C. 2307.96 Asbestos Claim—Multiple Defendants—Substantial Factor 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.)

Civ.R. 50(A)(4) (After construing the evidence most strongly in favor of the non-moving party, the trial court finds on any determinative issue reasonable minds could only come to one conclusion based on the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.)

Evid.R. 702 (A witness may testify as an expert if (1) the testimony relates to information beyond the knowledge of a lay person and dispels misconceptions of lay persons; (2) the witness has specialized skill, education, or training, in the area of the testimony; and (3) the testimony is based on reliable scientific, technical, or other specialized information.)

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].)

Horton v. Harwick Chemical Co., 73 Ohio St.3d 679 (1995) (Requiring plaintiff to prove exposure to the defendant’s product for each defendant in a multidefendant asbestos case, and that the product was a substantial factor in causing the plaintiff’s injury, but rejecting Lorhmann test of causation. Superseded, Ackison v. Anchor Packing, Co., 2008-Ohio-5243.)

Marcus v. Rusk Heating & Cooling Inc., 2013-Ohio-528 (12th Dist.)(A court properly excludes the testimony of experts if, upon review, there are noticeable errors in the methodology by which the expert’s conclusions arose.)

Quirin v. Lorillard Tobacco Co., 23 F. Supp.3d 914, 920 (N.D.Ill. 2014) (“But for” causation is not necessary when establishing a plaintiff’s claim for mesothelioma. Rather, the proximity, frequency, and regularity test is sufficient to show a defendant’s product was as substantial factor in causing the illness. This test balances the difficulty of proving causation in mesothelioma cases and the defendant’s right not to be held liable based on mere guesswork.)

Watkins v. Affina Group, 2016-Ohio-2830 (8th Dist.) (Proving causation generally requires a plaintiff to demonstrate more than just “some exposure.” Evidence must be produced from which the trier of fact can conclude that the plaintiff was exposed to “sufficient” levels of toxins to cause the injury. A showing of a specific dosage, however, is not required to prove causation. However, prior to admission into evidence, the court must undertake an independent examination of the reliability of proposed testimony.)

Honeywell’s Argument

Schwartz provided no evidence to show Kathleen was ever actually exposed to asbestos from Bendix brakes. Accordingly, Schwartz was unable to provide any evidence of the amount of Kathleen’s exposure to asbestos from Bendix brakes. Instead of requiring a showing of proper causation in keeping with R.C. 2307.96, the Eighth District adopted a cumulative exposure theory. This theory allowed Schwartz to assert (1) Kathleen had an illness related to asbestos; (2) there are no safe levels of asbestos exposure; (3) Kathleen could have been exposed to asbestos from various sources and undefined levels; and (4) therefore, all defendants associated with all potential sources of exposure constituted a substantial factor in causing Kathleen’s injury and are liable in tort. There was no attempted showing at trial that Kathleen had been exposed to enough asbestos from Bendix brakes alone for Bendix to be considered a substantial factor.

Ohio law mandates a two-step process for a plaintiff to establish causation in toxic tort cases. First, general causation must be proved, i.e., can the substance to which the injured party was exposed cause the alleged injury? Second, a plaintiff must prove specific causation i.e., did exposure to that particular substance cause the harm? Was the level of exposure enough to induce the medical condition at issue?

Additionally, when a plaintiff suffers a single injury and multiple defendants are involved, the burden is on the plaintiff to demonstrate that each defendant’s conduct was a substantial factor resulting in the harm suffered. During trial, Schwartz presented no evidence to meet this burden.

R.C. 2307.96 requires a plaintiff to establish, by expert testimony, whether exposure to a particular defendant’s asbestos-containing product was a substantial factor by analyzing the type of asbestos fiber in the product, the amount of asbestos in any dust released during and after the activity, the injured party’s relative exposure to any such dust, and ventilation and other environmental factors. This standard is especially important in secondhand exposure cases, like this one, where the injured party’s alleged exposure to asbestos is even more attenuated. Schwartz’s experts do no more than rely on the now discredited fiber-drift theory by stating that by Webber working on brakes, the asbestos fibers could have been released and drifted throughout the house.

Finally, the cumulative exposure theory does not satisfy R.C. 2307.96 because it directly ignores the nature of exposures and the statute’s objective factors. The position of Schwartz’s experts, that it is theoretically possible that some amount of cumulative exposure could have caused Kathleen’s mesothelioma, is simply not good enough. Nor is the theory that each and every exposure to asbestos products results in injury to the person so exposed.

Schwartz’s experts could not quantify a precise amount of asbestos to which Kathleen would have been exposed; neither could they provide a theoretical amount of exposure. This violates R.C. 2307.96 because it treats evidence of “some exposure” of an unknown quantity to be sufficient to establish a product as a substantial factor in causing the injury. Accordingly, the decision of the Eighth District should be reversed.

Schwartz’s Argument

Kathleen Schwartz died at age 43 of pulmonary mesothelioma. The jury heard extensive evidence about the manner, proximity, frequency, and length of her exposure to asbestos from Bendix brakes—more than sufficient to find that her exposure to asbestos released from those brakes from the cars her father worked on at home were a substantial factor in causing her mesothelioma. Examples of that key evidence are that mesothelioma is almost always caused by asbestos exposure (and no expert in the case attributed Kathleen’s mesothelioma to anything other than asbestos); all types of asbestos fibers can cause all types of mesothelioma; scientific studies have shown, and the Environmental Protection Agency has acknowledged, that chrysotile asbestos from brake dust causes take-home mesothelioma in bystanders like Kathleen, and Honeywell has known all of this for decades, as internal corporate documents confirm.

There is only one issue properly before this court, which is whether the Eighth District correctly affirmed the trial court’s denial of Honeywell’s motion for directed verdict on the issue of causation. The reasonable minds standard in Civ.R. 50(A)(4) only requires the court to determine whether any evidence of substantial probative value supports the non-moving party’s claim. In this case, it clearly did. Schwartz produced evidence on all of the necessary elements of R.C. 2307.96, and the court should reject Honeywell’s attempts to add new ones.

Schwartz has not relied on any discredited causation theories in this case; rather he has fully complied with the statutory requirements of manner, proximity, and frequency to meet the substantial factor test. Most of the cases cited by Honeywell and its amici are from jurisdictions that do not follow a substantial factor requirement, or do not use the manner, proximity and frequency tests.

Schwartz did not, for example, rely on a “fiber drift” theory—merely placing the victim and the product in the same large facility, at the same time, without more. Further, Schwartz acknowledges that the fiber drift theory—which Honeywell only raised for the first time in its unsuccessful petition to the appeals court to hear the appeal en banc– is inconsistent with R.C. 2307.96. Rather, Schwartz established specific times, places, and activities when Kathleen would have been directly exposed to asbestos from Bendix brakes, including passing through the family garage when Kathleen’s father was working with Bendix brakes; interacting with her father while he wore asbestos contaminated clothing; and helping her mother wash asbestos contaminated clothing. Additionally, the contamination of a single-family home with asbestos fibers is very different from contamination in a large facility such as a shipyard. These factors are sufficient to rebut Honeywell’s claim that Schwartz impermissibly relied on the fiber drift theory or an each-and-every exposure to establish causation.

But-for causation is not required to meet the substantial factor requirement of the statute. Schwartz need not identify the specific asbestos fibers that caused Kathleen’s disease. That is simply an acknowledgement of scientific reality, and does not mean a plaintiff has failed to meet the burden of proof on substantial factor causation.

Nor is a cumulative exposure theory inconsistent with the requirements of R.C. 2307.96. The statute provides that substantial factor causation must be shown by the manner, proximity, and length of exposure to asbestos while also considering any factor which mitigated or enhanced exposure. These requirements balance a plaintiff’s difficulty in proving causation from asbestos while protecting a defendant’s right not to be held liable for mere speculation. Schwartz produced evidence and testimony to show Kathleen was exposed to asbestos throughout her childhood through various interactions with her father. Such testimony by Schwartz’s experts went undisputed. Honeywell made no attempt to call witnesses to rebut Schwartz’s claims. The issue of aggravating factors was also undisputed; experts on both sides testified that Kathleen’s youth at the time of exposure rendered her more vulnerable to developing mesothelioma. The issue of substantial factor proximate cause was properly left to the jury, and Honeywell’s motion for a directed verdict was properly denied.

Honeywell proposes that a quantification requirement be added to R.C. 2307.96 and require Schwartz to demonstrate the number of asbestos fibers to which Kathleen was exposed. Plaintiffs have no such requirement. Adding a quantification requirement would run directly counter to the legislative intent; there is no amount requirement in the statute here at issue, as there is, for example, for smokers with lung cancer who bring asbestos claims. This does not suggest the amount of exposure is not relevant, but it illustrates that the General Assembly intended to provide plaintiffs with alternative means of showing the degree of exposure. Other courts have recognized the impracticability of providing a specific amount of exposure.

Accordingly, the court should decline to create additional barriers that would require it to encroach upon the legislative role of the General Assembly and also contravene the public policy that inspired the test the General Assembly sought to codify in the first place. Schwartz produced evidence to meet all factors enumerated in R.C. 2307.96. Therefore the decision of the Eighth District should be affirmed in all respects.

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

Schwartz’s Proposed Counter Proposition of Law

A plaintiff may prove “substantial factor” causation under R.C. 2307.96 by introducing specific evidence concerning the manner, proximity, frequency and length of exposure to a defendant’s asbestos-containing product, and any factors that mitigated or enhanced the exposure coupled with a case-specific expert option that the cumulative exposure was causative of mesothelioma, and is not required to quantify the number of asbestos fibers to which he or she was exposed.

Amicus Briefs in Support of Honeywell

Industry Amici

The Ohio Manufacturers’ Association, Ohio Council of Retail Merchants, Ohio Tire & Automotive Association, Ohio Alliance for Civil Justice, and Ohio Representative William Seitz (a sponsor of the bill codifying the causation standard at issue) (“Industry Amici”) filed a joint brief in support of Honeywell. In their brief, the Industry Amici contend that the cumulative exposure theory of causation adopted by the court of appeals contradicts the plain language of R.C. 2307.96. The Industry Amici also contend that the Eighth District’s decision is an attempt to eviscerate asbestos tort reform with a more lax view of causation that is wholly inconsistent with the statutory language of R.C. 2307.96. The Industry Amici ask the court to make absolutely clear that a plaintiff must prove that it was exposure to asbestos from a specific defendant’s product that was, on its own, a substantial factor in causing injury to the plaintiff. Hypothetical, speculative, and de minimums exposure do not cut it, yet that is all that Schwartz produced in this case.

OACTA Amicus Brief

The Ohio Association of Civil Trial Attorneys (“OACTA”) also filed a brief in support of Honeywell. Similar to the brief filed by the Industry Amici, OACTA contends that the cumulative exposure theory is an invalid mechanism, both legally and scientifically, to determine causation and the Eighth District’s decision ran counter to the intent of the General Assembly and established precedent. Trial courts across the state have rejected the cumulative exposure theory, and so should the Supreme Court of Ohio.

Insurance Amicus Brief

The Coalition for Litigation Justice, a group of insurance companies, also filed a brief in support of Honeywell. Insurance Amicus contends that the cumulative exposure theory improperly assumes causation instead of demonstrating a specific causative dose, and is merely a name-change from the discredited “each and every exposure” theory, to avoid immediate exclusion by the courts.  Insurance Amicus also contends that the Eighth District did not adequately inquire into the scientific bases upon which Schwartz’s experts relied.

Scientist Amici in Support of Schwartz

A group of 48 scientists, physicians, and scholars filed a joint brief in support of Schwartz. In their brief, the Scientist Amici focus on the effect of cumulative exposure to asbestos. They posit that cumulative exposure over a person’s lifetime, including secondary exposure such as Kathleen Schwartz experienced, does cause mesothelioma. There is no safe level of exposure to asbestos. Amici claim asbestos researchers employ a multi-factor approach to causation which is consistent with the causation requirement under R.C. 2307.96. As scientists, they caution courts that from a medical and scientific viewpoint, there is no bright-line quantitative test to be applied here, and that from a legal standpoint, the court is urge to recognize the validity of cumulative exposure in determining causation.

Student Contributor: Paul Taske

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