“Given the current status of the science in this area is it ever possible to say what is or isn’t a significant factor… Is it just that the science is different from what the statute is requiring?”
On October 17, 2017, the Supreme Court of Ohio heard 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.
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 also occasionally 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. Honeywell argued that Schwartz’s cumulative exposure theory failed to meet the substantial factor test of causation codified at R.C. 2307.96. The court denied Honeywell’s motion. The jury returned a verdict for Schwartz in the total amount of $20,232,798.21 and 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. 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.
On appeal, the Eighth District, in a unanimous opinion, 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.
Read the oral argument preview of the case here.
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.)
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 multi-defendant 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, and legislatively repudiated in favor of Lohrmann test.)
Lindstrom v. AC Product Liability Trust, 424 F. 3d 488 (6th Cir. 2005) (If a plaintiff can provide expert testimony stating that a defendant’s product was the source of the alleged harm it will not be necessary to prove substantial exposure to establish causation. Without such evidence, however, plaintiff must show exposure to a defendant’s product over a substantial period of time in order to successfully demonstrate that exposure was a substantial factor in causing the injury. Plaintiff cannot state in a conclusory fashion that every exposure was a substantial factor.)
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 a 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.)
Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016) (Trial courts are permitted to make reasonable inferences as to whether a sufficient causal connection exists between defendant’s product and the asserted injury through the frequency, regularity, and proximity test. The frequency, regularity, and proximity test does not establish the scientific standard necessary for determining whether mesothelioma has, or will be, contracted. Instead, the test seeks to establish a legal framework to determine which exposures would constitute a substantial factor in contracting the disease. Relevant medical testimony may also bolster the existence of substantial factor causation.)
At Oral Argument
Michael W. Weaver, McDermott Will & Emery LLP, Chicago, for Appellant Honeywell International, Inc.
James L. Ferraro, Kelley & Ferraro LLP, Cleveland, for Appellee Mark Schwartz, Individually and as the Executor of the Estate of Kathleen Schwartz, et al.
Thirteen years ago, the Ohio General Assembly enacted major asbestos tort reform legislation. R.C. 2307.96 requires liability to be based on a substantial factor test using objective criteria. The Eighth District Court of Appeals has created a new standard that guts the statutory criteria, and has allowed liability against Bendix based on the decedent’s cumulative exposure to asbestos fibers. Meeting the substantial factor test with a cumulative exposure theory is wrong. The cumulative exposure theory does not meet the substantial factor test. Lumping together all exposures to asbestos, regardless of a particular dose of those exposures, to claim that all of them caused Kathleen Schwartz’s mesothelioma does not meet the legal test for specific causation set by the legislature. No jurisdiction has completely adopted the cumulative exposure theory, while thirty jurisdictions have expressly rejected it.
Ohio’s statute requires an individualized assessment of a particular defendant’s product, using the objective factors set forth in the statute. That assessment must establish that the exposure was at a high enough level that the exposure is considered a substantial factor, in this case of causing Kathleen Schwartz’s mesothelioma. Plaintiff’s expert, Dr. Bedrossian, never did that in this case. He never conducted an individual assessment of any of the exposures. He just lumped all the exposures together and said they were cumulative. That is why Honeywell should have been granted a directed verdict. The opinion of plaintiff’s expert was simply insufficient on causation.
Dr. Bedrossian never provided a specific causation opinion as to Bendix. What he said was it was the cumulative exposure, not specific exposure to Bendix brakes, that caused the illness. He could have testified that exposure to asbestos from the Bendix brakes was a substantial factor in Kathleen Schwartz’s mesothelioma. But he never did. A cumulative exposure theory allows plaintiffs to avoid their burden of proof. Cumulative exposure renders the substantial factor test meaningless.
This case is not the single exposure/single fiber case the defense is trying to characterize it as. In this case, plaintiff’s expert, Dr. Bedrossian, clearly gave his opinion that Kathleen’s exposures to the Bendix product was a substantial factor in causing her disease. The jury heard much testimony from fact witnesses about the manner, frequency, and proximity, of Kathleen’s exposures, and the enhancing factors like her youth at the time of the exposures, and properly reached its conclusion about Honeywell’s liability.
It is undisputed in the science, and no expert will disagree, that every exposure to asbestos contributes to the cumulative exposure. It is also undisputed in the science that not every exposure is a substantial factor in causing the disease. Plaintiff’s expert in this case properly tied the specific exposure to the Bendix brakes from Mr. Webber’s brake jobs to Kathleen’s mesothelioma. Dr. Bedrossian may not have given the most artful answer in the case on this issue, but he definitely affirmatively tied Kathleen’s disease to Bendix brake exposure.
The exposure from Kathleen’s father’s work clothes at Pennwalt could also be a substantial factor in causing her disease– there’s not just one culprit here–but that is the point of apportionment of damages on the jury verdict form. The jury in this case assessed Bendix five percent of the responsibility.
Substantial factor does not mean the majority of the cause. It means it is the type of exposure to that particular product that is enough to have caused the disease on its own. And plaintiff properly showed that here. If there are exposures from twenty different companies, it is impossible to identify whose fibers actually caused the disease. There are no identification numbers on the fibers. More than one company’s products can be the substantial factors of a disease. It is a dose response type of disease.
What Was On Their Minds
Kathleen Schwartz’s Childhood Exposure
Isn’t it correct that after performing brake work, Mr. Webber would typically remain in the same clothing while interacting with his family until the end of the day, asked Justice O’Donnell?
There’s no dispute that the brake jobs were done, is there, asked Chief Justice O’Connor? Or about the fact that there would be an accumulation of dust from the way Mr. Webber described how he replaced brakes, that logically there would be asbestos dust on his clothing, in the garage, in the dust bin, around the garage? Isn’t it true that the younger the child is, the more danger a minimal amount of exposure is? Is the court just to presume that if a child is exposed to the fibers that are left over on the clothing from somebody doing a brake job, and not the from a job as an electrician, that is the cause the mesothelioma? If this child was exposed to the dust from the brake jobs, what is the scientific evidence that that would have no effect on her?
Has any state adopted the cumulative exposure theory, asked Justice O’Donnell? If that is not the proper test, how should this case be resolved?
Isn’t saying all exposure contributed to her cumulative exposures to asbestos fibers which ultimately was the cause of her mesothelioma not at all the same thing as saying a particular exposure is a substantial factor, asked Justice French, in a key question of the day.
Didn’t plaintiff’s expert state that it was the cumulative exposure that was the substantial factor, not simply the Bendix exposure, asked Chief Justice O’Connor?
Substantial Factor and the Statute
Didn’t the court of appeals follow R.C. 2307.96 and apply the manner, proximity and frequency tests set forth in that statute, asked Justice O’Donnell? What does the statute require? Has the legislature signaled that a cumulative exposure or multiple exposures could all be substantial factors? Was there substantial exposure in this case?
Must there be an expert who says that frequency, length and proximity all are met to establish substantial factor, asked Justice DeWine? But the plain language of the statute seems to make that a question for the trier of fact, he commented. In this case, an expert connected the asbestos exposure to the mesothelioma, and a jury heard evidence relating to all of those elements. Why isn’t that just the jury’s decision to make, based on the plain language of the statute? Later, in a key question, he asked how a trier of fact could reach a decision on something that is medical causation without expert testimony on proximity, frequency, length and how that fits into causation. Doesn’t there have to be an expert, and not just fact witnesses, tying the exposure to the disease?
Isn’t the statute asking a plaintiff to do something that is very difficult scientifically, asked Justice French?
Does the statute require testimony as to the exact amount of asbestos, or exact timing, or length of exposure, asked Chief Justice O’Connor? What is missing in this case? Is the defense saying there was never even a substantial exposure?
Could a neighbor living across the street from this garage or could someone living next door to a muffler shop where they change brakes also claim substantial factor if they suffer from mesothelioma, asked Justice O’Donnell?
Law Versus Science
Given the current status of the science in this area is it ever possible to say what is or isn’t a significant factor, asked Justice French? Exposure to the clothing from the brake job as a contributing factor to the total cumulative dose of asbestos exposure might be scientifically supported, but is that the same as saying a substantial factor under the legal standard?
Isn’t there testimony in this case that a single exposure to the fibers can cause mesothelioma, asked Justice O’Neill? If the postman comes through the garage while the fibers are in the garage, and he is exposed and he contracts the disease, isn’t it up to the jury to decide whether or not that is a causative factor?
Chief Justice O’Connor commented that nobody could take an air quality reading or measure the asbestos if the plaintiff, as a child is walking through a garage where asbestos fibers are in the air.
How is an individualized assessment possible given the facts of this case that happened so many years ago, asked Chief Justice O’Connor? How could there have been any measurement of the exposure when it was not ongoing and it was so long ago that it’s an impossibility? Does the defense dispute that fiber from a half dozen brake jobs could cause mesothelioma in a child? (yes, the defense does dispute that.) Is that not enough? Based on what?
Is this a failure of proof case, asked Justice O’Donnell? Because there is no expert to connect the exposure to the condition? Because some of the exposure did not come from Bendix? Is this a sufficiency of the evidence matter? In the Lindstrom case, the 6th circuit said that the plaintiff must make a showing with respect to each defendant that the product was a substantial factor in causing injury and cannot state in a conclusory fashion that every exposure was a substantial factor. How do we differentiate that this exposure wasn’t simply part of an overall exposure, but was a substantial factor. How do we do that? What weight should be given to the jury’s finding that 5% of the exposure was related to these Bendix fibers? (absolutely zero, said defense counsel, commenting that allocation of fault is not a substitution for substantial factor causation)
Is the defense simply asking this court to reverse the Eighth District and direct them to follow the substantial factor test as set forth by the General Assembly, asked Justice O’Donnell?
How It Looks From The Bleachers
To Professor Emerita Bettman
Messy. I think Justice French put her finger right on it—there is clearly a disconnect here between the law and the science. The justices seemed split between those who think this was clearly properly a jury call on substantial factor, and those who think expert testimony is required, but was missing here, to prove the link between the asbestos exposure and Honeywell, specifically.
Chief Justice O’Connor, and Justice O’Neill (who missed Honeywell’s argument, apologized to counsel in open court for being late, and informed all that he had heard all but five minutes of Honeywell’s argument in chambers, would review the rest later and would participate in the vote on the case) were the most strongly in Schwartz’s camp, with the Chief, in particular, really challenging defense counsel about the effect of asbestos on such a young child, her exposure to her father’s clothing after he did his brake jobs, and the difficulty in quantifying the exposure after so much time had past.
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.
Justice O’Donnell, who was a very active questioner, asked very pointed questions challenging each side. Justices Fischer and Kennedy said nothing. Justice Kennedy has shown herself to be strongly “anti-activist” which suggests in this case she will go with Honeywell, and reject the cumulative exposure view of causation. So, I’m going to part company with my student contributor Paul Taske, and call this for Honeywell, although this is by no means a walk-away, as it is no small feat to take away a jury verdict like this one, which carefully apportioned 5% of the fault to Honeywell (Honeywell’s lawyer made the point well that apportionment of fault is not a substitute for proof of substantial factor causation) by way of a directed verdict.
I also thought Honeywell’s lawyer gave a far more effective argument than did Schwartz’s, who began by saying he had four points to make, but I can’t say I ever followed what they were, as his argument often involved more passion than law. I also think the court is going to find the amicus of the Industry Amici particularly persuasive here. Still, my notorious plaintiff’s heart in tort law would be happy if the plaintiff pulls this one out.
To Student Contributor Paul Takse
This case seems like a win for Schwartz. The arguments in this case were laden with scientific concepts, and the justices were clearly wrestling with the interplay between the scientific facts and the legal standard throughout.
Chief Justice O’Connor was, by far, the most vocal critic of Honeywell’s argument. Justice O’Neill, despite being late to arguments, appeared to join in O’Connor’s skepticism when he arrived. The constant comparisons to the standards and language adopted in other jurisdictions, I think, made the other justices more hesitant to ask direct questions about the facts of this case. Instead, the remainder of the questions illustrated the difficulty of dealing with the complex issues presented.
There was one point during Schwartz’s argument where he offered a point which may cut against him. When he gave the example of the millionaire who had a job as a child and only made ten-thousand dollars from that job it wouldn’t be considered a substantial factor in making him a millionaire. If the court were to decide against Schwartz, or in any potential dissenting opinion, this portion of the example could easily be analogized to the exposure to Bendix brakes. Ultimately, however, I think the justices will be inclined to leave the determinations of fact, made by the jury, intact.