Ohio Supreme Court Rejects Cumulative Exposure Theory of Causation
In a landmark opinion, the Ohio Supreme Court held that plaintiffs may no longer rely on the “cumulative exposure theory” to establish causation in cases alleging asbestos-related injuries. Specifically, the Court held that a theory of causation based only upon the cumulative exposure to various asbestos-containing products does not meet Ohio’s “substantial factor” test. Instead, plaintiffs must prove that the conduct of each particular defendant was a substantial factor in causing the disease based on specific evidence of the manner, proximity, frequency, and length of exposure. See Schwartz v. Honeywell International., Inc., Slip Opinion No. 2018-Ohio-474 (opinion will open in a new window).
In Schwartz, the plaintiff alleged that the decedent, Kathleen Schwartz, was exposed to asbestos through her father’s 33-year career as an electrician and through her father's personal automotive work. The evidence showed that, as an electrician, her father worked with asbestos products almost every day, was regularly exposed to clouds of asbestos dust, drove home from work in the family car, and played with Kathleen without first changing his clothes. The evidence also showed that, during his automotive work, her father used Bendix brake products approximately 5 to 10 times while Kathleen lived in the family home.
At trial, the plaintiff’s expert testified that asbestos from both the Bendix brakes and her father’s career as an electrician were contributing factors to Kathleen’s “total cumulative dose” of exposure. According to the plaintiff’s expert, Kathleen’s cumulative exposure―which included her exposure to asbestos from the Bendix brakes―was the cause of her mesothelioma. The jury found for the plaintiff and found Honeywell (as successor-in-interest to Bendix) to be 5% at fault. Honeywell appealed, and the appellate court upheld the decision. The Ohio Supreme Court granted a discretionary appeal.
The Ohio Supreme Court first clarified Ohio’s standard for causation. To establish causation under Ohio law the plaintiff must prove that: (1) the injured person was exposed to asbestos “manufactured, supplied, installed, or used by the defendant;” and (2) the “exposure to the defendant’s asbestos was a substantial factor in causing the plaintiff’s injury or loss.” Ohio Rev. Code 2307.96(A)-(B) (emphasis added). When determining whether exposure to asbestos is a “substantial factor,” the trier of fact must consider the manner, proximity, frequency, and length of the alleged exposure to asbestos. Ohio Rev. Code 2307.96(B). In contrast to section 2307.96 of the Ohio Revised Code, the cumulative exposure theory does not rely on any particular dose or exposure to asbestos. Rather, it argues that all exposures contribute to a causative dose. As such, the cumulative exposure theory considers all non-minimal exposures as causative because they contribute to the cumulative exposure to asbestos. In sum, the cumulative exposure theory examines all defendants in the aggregate by viewing any defendant that contributed to the exposure as a substantial cause. The Court held that the total cumulative exposure theory is inherently incompatible with the plain language of Ohio Rev. Code 2307.96
In categorically rejecting the cumulative exposure test, the Court noted that section 2307.96(B) of the Ohio Revised Code requires an individualized determination for each defendant with respect to the alleged exposure. Thus, there must be a determination whether the conduct of each particular defendant was a substantial factor in causing the plaintiff’s injury based on specific evidence of the manner, proximity, frequency, and length of exposure. Moreover “[w]here specific evidence of frequency of exposure, proximity and length of exposure to a particular defendant’s asbestos is lacking, summary judgment is appropriate . . . because such a plaintiff lacks any evidence of an essential element necessary to prevail.” The Court reasoned that the cumulative exposure theory, which requires only that the plaintiff demonstrate that the exposure to asbestos from the defendant’s product was non-minimal and contributed to the plaintiff’s total cumulative exposure is inconsistent with the statute’s clear and mandatory manner, proximity, frequency, and length of exposure requirements.
When applying the manner, proximity, frequency, and length factors to the case at issue, the Court found that the plaintiff had failed to establish causation. The plaintiff failed to introduce specific evidence of the manner of exposure, and had only presented limited evidence of proximity, frequency, and length of exposure. The Court also specifically stated that the alleged exposure to Bendix brakes was limited and irregular when compared to the regular exposures that Kathleen received through her father’s 33-year career as an electrician.
The Court’s ruling now seems to require Ohio plaintiffs to introduce defendant-specific expert evidence establishing that the exposure dose from a particular defendant’s product to satisfy substantial factor causation under Ohio law. It also highlights the importance of having a legal team that knows the facts of each case so that it can aggressively pursue all available options, such as motions to apply Ohio law.
For additional information, please contact Simon Baker at email@example.com. A full copy of the decision is available here.