Cumulative-Exposure Theory Inconsistent with Test for Causation; Not a Sufficient Basis for Finding Substantial Factor Supreme Court of Ohio, January 24, 2018 (decided); February 8, 2018 (released)
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 family cars, and occurred five to ten times in the garage of the family home during the 18years the decedent lived there. The decedent and her siblings used the garage to access the backyard; The decedent’s father also testified that he wouldn’t change his clothes after doing brake work and he would play with his children with dust on his clothes. The decedent’s mother testified that the decedent would help with her father’s laundry, which may have included clothes her father wore while doing brake work. Crucially, there was no specific evidence that the decedent helped wash her father’s clothes after he changed bakes. The decedent’s father was an electrician, and the decedent was exposed to asbestos from helping wash her father’s work clothes and playing with him while he remained in his dusty work clothes.
Dr. Carlos Bedrossian, a pathologist, opined that the decedent’s exposures to Bendix brakes and to asbestos dust brought home from her father’s electrician job were both contributing factors to her “total cumulative dose” of asbestos exposure. Dr. Bedrossian explained that the exposures that contributed to this cumulative exposure were “significant meaning above background” and did not include “the elusive background level of asbestos” in ambient air. Therefore, according to Dr. Bedrossian, the decedent’s “cumulative” exposure, including her exposure to asbestos from Bendix brakes, “was the cause of her mesothelioma.”
The jury ultimately found that Honeywell was five percent liable, entering a judgment against Honeywell for $1,011,639.92. Honeywell appealed, arguing that the plaintiff presented insufficient evidence that the decedent’s exposure to asbestos from Bendix brakes was a substantial factor in causing her mesothelioma. The Eighth District Court of Appeals noted the expert testimony that the decedent’s “cumulative exposure was the cause of her mesothelioma.” The Court of Appeals further concluded that reasonable minds could have found in favor of the decedent on the issue of causation and affirmed the trial court’s denial of Honeywell’s motion for a directed verdict.
The Supreme Court of Ohio disagreed with both lower courts, stating that Dr. Bedrossian did not testify that the decedent’s exposure to asbestos fibers from Bendix brakes was a substantial factor in causing her disease. Dr. Bedrossian’s theory, the cumulative-exposure theory, “does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.” The court held that the theory is incompatible with the plain language of the statute, which requires an individualized determination for each defendant, namely, that there “must be a finding that the conduct of a ‘particular defendant was a substantial factor’ in causing the plaintiff’s disease.” Conversely, the cumulative-exposure theory “examines defendants in the aggregate,” which makes it impossible to reconcile with a statutory scheme that requires an individualized finding of substantial causation for each defendant.
The court further stated that the “cumulative-exposure theory is also at odds with the statutory requirement that substantial causation be measured based on the manner, proximity, length, and duration of exposure.” In saying that all non-minimal exposures count, Dr. Bedrossian’s theory “completely disregards the manner, proximity, length, and duration of exposure.”
The court ultimately determined that Dr. Bedrossian’s report, along with other evidence offered about exposure to asbestos from Bendix brakes, did not establish the manner, frequency, and duration of exposure required to show substantial causation under the statute. The court held that the motion for directed verdict should have been granted, and reversed the judgment of the court of appeals.