Ohio Defendants Can Force Plaintiffs to Prove That Asbestos Was a Substantial Factor in Lung Cancer With Sufficient Proof of Smoking

OHIO — The Plaintiff Bobby Turner, an occasional cigar smoker, alleged that he developed lung cancer as a result of exposure to asbestos from his work as a drywall finisher between 1962 and 1978. At the outset of his case, Turner did not submit a report per RC 2307.92(c)(1).that showed “diagnosis by a competent medical authority that [he] has primary lung cancer and that exposure to asbestos is a substantial contributing factor to that cancer.” Essentially, Turner took the position that he was not a …

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Weight-of-the-Evidence Standard Used by Plaintiff’s Experts Found to Satisfy Daubert Requirements

OHIO — Defendant Honeywell International filed Motions in limine to Preclude the plaintiff’s Experts Dr. Murray Finkelstein and Dr. Carlos Bedrossian and dismiss the plaintiff’s claims, or, in the alternative, its request for evidentiary hearing. The plaintiffs filed oppositions.

The court determined that both doctors utilized the weight-of-the-evidence standard in formulating their opinions of the case in line with the prescriptions under Daubert.  Additionally, Dr. Finkelstein’s methodology had previously been scrutinized at a Daubert hearing in another jurisdiction and was upheld as valid and …

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Failure to Timely Submit Supplemental Expert Report Leads to Denial of Motion for Leave

DELAWARE — The plaintiff moved for leave to submit a supplemental expert report after a change in substantive Ohio law. The court had previously granted summary judgment in favor of four defendants. Specifically, the defendants argued that summary judgment was proper based on the Ohio Supreme Court’s recent decision in Schwartz which found theories advanced on cumulative exposure as invalid to establish substantial factor causation. In the instant matter, The plaintiffs submitted an expert report from Dr. Ginsberg 8 months prior to the deadline imposed …

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Denial of Worker’s Compensation Claim by employee of Scotts Miracle Grow Upheld on Appeal.

OHIO — The plaintiff James Bennett filed a worker’s compensation claim for his development of “pleural plaque” disease he attributed to asbestos exposure while working for Scotts Miracle Grow (Scotts). Bennett began receiving benefits for his claim but then filed for additional payments for his recent “asbestosis” diagnosis. The hearing officer denied his claim for asbestosis finding that the plaintiff had not established the disease process. The plaintiff appealed.

On appeal, the parties did not dispute that the plaintiff had been exposed to asbestos. Rather, …

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Brake Lining Manufacturer’s Summary Judgment Affirmed in Part in Second Filing in Different Counties

OHIO — Plaintiff Margie Taylor, the executor of the estate of her father Russell Young, originally filed claims against Goodyear Tire & Rubber Company in the Cuyahoga County Court of Common Pleas, alleging that Young was exposed to asbestos from work on aircraft brake linings during his employment with Goodyear Aerospace Corporation. Goodyear filed a motion for summary judgment on premises liability, negligent undertaking, and intentional tort claims, which was granted by the court in an entry on the electronic “File & Serve” docket, and …

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Cumulative-Exposure Theory Inconsistent with Test for Causation; Not a Sufficient Basis for Finding Substantial Factor

OHIO — The decedent  Kathleen Schwartz’s husband, Mark Schwartz, filed suit against numerous manufacturers of asbestos-containing products, alleging that asbestos exposure caused her to develop mesothelioma, leading to her death. By the time of trial, Honeywell International, Inc., the successor-in-interest to Bendix Corporation, was the only defendant who remained.

The issue at trial — and on appeal — was whether the decedent’s exposure to asbestos from Bendix brake products was a substantial factor in causing the decedent’s mesothelioma. The decedent’s father changed the brakes in …

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Plaintiff’s Testimony about Secondary Brake Exposure Sufficient to Overcome Summary Judgment

OHIO – Plaintiff Julia Alexander filed suit against multiple defendants after she was diagnosed with peritoneal mesothelioma in May of 2016. The plaintiff alleges that she was exposed to asbestos via Bendix brake products which were manufactured by Honeywell International. The plaintiff testified that she visited her fiancé, an automobile mechanic, two to three times per week for four hours a visit from 1987-91. Throughout this period, the plaintiff alleges she observed her fiancé performing brake work on a variety of vehicles one to three …

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Plaintiff’s Incomplete Deposition Testimony Deemed Inadmissible; Summary Judgment Granted for Defendant

OHIO — The decedent, Donald French, filed suit as a result of his diagnosis of mesothelioma allegedly caused by occupational exposure from asbestos-containing products through his work at U.S. Steel in Dearborn, Michigan. French provided testimony as to his alleged exposures at a discovery deposition that lasted approximately 18 hours over three days. On the third day, French identified the defendant as a source of exposure. The deposition, however, was not completed. The fourth day of deposition was adjourned due to French’s poor health. French …

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Gasket Manufacturer’s Summary Judgment Affirmed Where Plaintiff Failed to Timely Disclose Exposure Affidavits of Fact Witness

Plaintiff Paul Heaton sued multiple defendants including an automotive gasket manufacturer and Honeywell International alleging his decedent, Robert Brawley, developed mesothelioma for which defendants were responsible.

Fact witness Michael Victor was deposed on Brawley’s use of the gasket manufacturer’s gaskets on shade tree mechanic work from 1974-2010. The deposition lasted three days. On day one of Victor’s deposition, he denied having any knowledge regarding Brawley’s work on home renovations. However, Honeywell probed on that issue later during the deposition. The plaintiff’s counsel refused to permit …

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Summary Judgment Reversed in Finding Co-Worker Testimony Personal Knowledge, Not Hearsay

Plaintiff Ruth Williams filed suit against multiple defendants, including Akron Gasket, as a result of her late husband’s development of mesothelioma. Specifically, the plaintiff alleged that Mr. Williams was exposed to asbestos tape made by Akron while working at PPG Industries and Goodyear Tire and Rubber. Summary judgment was granted in favor of Akron. The plaintiff appealed, arguing that the trial court erred in finding that co-worker testimony was hearsay and that medical causation could not be proven.

The court began its analysis by reminding …

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