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Cumulative Exposure Theory Found Inconsistent with Test for Causation and Determined Not Sufficient Basis for Finding Substantial Factor

Posted in Asbestos Litigation, Products Liability, Uncategorized

In a recent case, the Ohio Supreme Court addressed the question of whether the “cumulative-exposure theory” satisfies the “substantial factor” test for a plaintiff to succeed on a claim for asbestos-related injuries. The standard in Ohio requires a plaintiff to demonstrate that exposure to the product of a certain defendant was a substantial factor in causing the plaintiff’s asbestos-related injuries.

 

The decedent, Kathleen Schwartz, was diagnosed with and died from mesothelioma. The alleged main source of her exposure to asbestos occurred as a result of laundering the clothing of her father, who worked as an electrician.  In addition, plaintiff claimed that Ms. Schwartz was exposed to asbestos as a result of her proximity to her father when he changed the brakes on the family vehicle.

 

Plaintiff, decedent’s husband, brought suit against a number of defendants and claimed that the products of each of those defendants were a substantial factor in causing his wife’s mesothelioma. At trial, plaintiff presented evidence, in the form of expert testimony, that there is no known threshold of asbestos exposure at which mesothelioma will not occur, and thus each exposure to asbestos that the decedent experienced from laundering her father’s clothes and being in proximity to brake products contributed to her total dose of asbestos and were substantial contributing factors to the causation of her mesothelioma.

 

The trial court entered judgement against the defendant in the amount of $1,011,639.92, based on this cumulative exposure theory of causation. The Eighth District Court of Appeals affirmed the decision, finding that the cumulative exposure theory was based on “reliable scientific evidence.”

 

In reversing the Court of Appeals, the Ohio Supreme Court held that cumulative exposure theory is inconsistent with a substantial factor test for causation. In its decision, the Ohio Supreme Court noted that R.C. 2307.96 requires a showing that “the conduct of that particular defendant was a substantial factor in causing the injury or loss.” This substantial factor standard requires the trier of fact to consider the manner, proximity, and frequency of exposure. As such, the Ohio Supreme Court held that the cumulative exposure theory is incompatible with the plain language of R.C. 2307.96.  Moreover, the Court held that there must be at least some quantification or means of assessing the amount of exposure to determine if the exposure was in fact sufficient to contribute to the cause of the disease.

 

SLIP OPINION NO. 2018-OHIO-474 SCHWARTZ, EXR., APPELLEE, ET AL. v. HONEYWELL INTERNATIONAL, INC., APPELLANT.[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Schwartz v. Honeywell Internatl., Inc., Slip Opinion No. 2018-Ohio-474.]