Ohio Supreme Court Rejects Plaintiff’s “Cumulative-Exposure” Causation Theory

Asbestos defendants notched a victory when the Supreme Court of Ohio rejected the “cumulative exposure” asbestos causation theory. This theory, also known by several other names (including the “each and every fiber theory”), postulates that each exposure or asbestos fiber above background asbestos exposure is a substantial factor in causing disease. This case brings Ohio in line with several federal and state courts in rejecting this plaintiffs’ theory.

In Schwartz v. Honeywell International, Inc., decedent’s father was exposed to asbestos both in the course of his employment as an electrician and while installing Bendix brakes on family cars five to ten times. Plaintiff alleges that it was decedent’s contact with her father’s asbestos-laden clothing that caused decedent’s mesothelioma and subsequent death.

At trial, plaintiffs’ pathology expert, Dr. Carlos Bedrossian, testified 1) that there is no known threshold at which mesothelioma “will not occur” and 2) decedent’s take home exposure both from her father’s occupational exposure and his work with brakes contributed to her “total cumulative dose.” It was her cumulative exposure, the expert opined, that caused her mesothelioma. Honeywell International Inc. (the successor-in-interest to Bendix) moved for a directed verdict twice “arguing that Schwartz had failed to demonstrate that [decedent’s] exposure to asbestos from Bendix brakes was a substantial factor in causing her disease,” but both motions were denied. Instead, the jury found defendant Honeywell 5% liable for decedent’s injuries and awarded plaintiff just over $1 million.

On appeal, defendant argued that plaintiff did not present sufficient evidence that decedent’s exposure to Bendix brakes was a substantial factor in causing her mesothelioma. The appeals court disagreed, found the expert’s testimony to be “based on reliable scientific evidence,” and affirmed the trial court’s denial of defendant’s motions.

Thus, defendant appealed to the Supreme Court of Ohio on a single discrete issue: “whether the ‘substantial factor’ requirement may be met through a ‘cumulative exposure theory.’” Schwartz ruled that it may not. The decision was based on an Ohio statute incorporating requirements found in many other jurisdictions: that in an asbestos case with multiple defendants, plaintiff must prove that the conduct of a particular defendant was a substantial factor in causing the injury, and the trier of fact must consider the “manner . . . proximity . . . [and] frequency and length” of plaintiff’s exposure to that particular defendant’s asbestos-containing product. (R.C. 2307.96.)

The court explained that the cumulative exposure theory “examines defendants in the aggregate” and does not consider each individual defendant’s contribution to the overall exposure. “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.” Moreover, the cumulative exposure theory does not consider dose or reflect consideration of the manner, proximity, length, or duration of exposure, which the statute delineates must be considered by the trier of fact in this instance. The court noted that plaintiff’s theory is flawed because Dr. Bedrossian arbitrarily elected only to include exposures above background in deeming which exposures were causative in this case. “In a theory that starts with the premise that the total cumulative dose causes the disease, there is no rational reason to exclude even minimal exposures, because they also contribute to the cumulative dose.”

Next, the court determined that exposure to asbestos from Bendix brakes was not a substantial factor in causing decedent’s mesothelioma because plaintiff did not meet his burden of proof. Notably, decedent’s father worked on Bendix brakes only 5 to 10 times while decedent lived at home, compared with occupational exposure over 33 years. The court concluded that “[t]hese regular exposures that [decedent] received as a result of her father’s years of working as an electrician with products containing asbestos contrasts strongly with the limited and irregular exposures that [decedent] might have had a result of her father’s occasional brake jobs.” Further, plaintiff did not provide sufficient evidence regarding the manner, proximity, frequency, and length of decedent’s exposure.

The Schwartz decision is a victory for defendants by rejecting the cumulative exposure theory as insufficient. This brings Ohio in line with several other jurisdictions, including the Sixth Circuit, the Ninth Circuit, Georgia, Texas, and Pennsylvania. Notably, California state courts have allowed similar “every exposure” theories to go before the jury (see here and here). As plaintiffs suffer setbacks while attempting to advance this theory, they will transform this into other theories that defendants must be ready to tackle.

California Supreme Court Finds Duty in Take Home Exposure Cases

12-5On December 1, 2016, the California Supreme Court ruled that premises owners and employers owed a duty to prevent take-home asbestos exposure to those in an employee’s household. The court declined to carve out an exception to the general duty imposed by California statute (Civ. Code, § 1714) on every person to exercise reasonable care for the safety of others. While the decision does not specifically cover take-home claims against product manufacturers, the rationale of the decision suggests that they too will be subject to take-home liability. Recognizing a duty to bystanders will expand the class of persons who may pursue employers and premises owners for asbestos exposure claims. The court found no inconsistency with its opinion and a number of other jurisdictions that have a “no duty” rule. One  distinguishing fact is that by the time exposure is alleged to have occurred in the 1970’s information and regulations regarding the dangers of take-home exposure would have been generally known to employers and premises owners, as the result of 1972 OSHA regulations and otherwise.

The court’s ruling came in two consolidated companion cases. In Kesner, plaintiff alleged he was exposed to asbestos when he spent an average of three nights per week at his uncle’s house in the 1970’s. His uncle, an employee of Pneumo Abex, LLC (“Abex”), worked in a plant where brake shoes were manufactured with asbestos fibers that were released during the manufacturing process, and it was alleged that the uncle brought the fibers home on his work clothes. Plaintiff was diagnosed with mesothelioma and he sued Abex. The Kesner appellate court reversed Abex’ nonsuit based upon prior California holding (Campbell v. Ford Motor Co.) that the employer had no duty to a bystander. In the companion case Haver, the decedent’s heirs claimed decedent was exposed to asbestos by her former husband, who was allegedly exposed to asbestos from pipe insulation and other tools while employed as a fireman and hostler in the early 1970’s. Decedent was diagnosed with mesothelioma. The Haver appellate court affirmed the trial court’s order sustaining defendant’s demurrer, relying upon Campbell and distinguishing Kesner on the ground that Kesner sounded in negligence whereas the Havers’ claims rested on a premises liability theory.

The Supreme Court held that in both instances, a reasonable employer should have known that asbestos presented risk of harm in the workplace and that it was foreseeable its employees would travel outside the workplace, particularly to their homes. “The relevant intervening conduct here – that workers returned home at the end of the day and, without adequate precautions, would bring asbestos dust home – is entirely foreseeable.” Thus, the exposure was foreseeable and duty attached.

The court did, however, limit the duty to “household” members, and not just anyone with whom a worker might come into contact (e.g. carpools, restaurant workers, or bus passengers). “We hold that an employer’s or property owner’s duty to prevent take-home exposure extends only to members of a worker’s household, i.e., persons who live with the worker and are thus foreseeably in close and sustained contact with the worker over a significant period of time.” The court stopped short of limiting the duty to “immediate family members” and instead applied it to “household members”, an acknowledgement of bonds which may be found in non-traditional and quasi-familial living arrangements. The court also explicitly acknowledged that “… a finding of duty is not a finding of liability. To obtain a judgment, a plaintiff must prove that the defendant breached its duty of ordinary care and that the breach proximately caused the plaintiff’s injury and the defendant may assert defenses and submit contrary evidence on each of these elements.”