DELAWARE – In an appeal of a case reported by the Asbestos Case Tracker blog in August 2018, the Delaware Supreme Court rejected the plaintiffs’ appeal and affirmed the superior court. Briefly, the parties had agreed that Ohio law applied to the case. During the pendency of the action, the Ohio Supreme Court issued its opinion in Schwartz v. Honeywell International, holding that the plaintiffs’ experts could not opine on a cumulative exposure theory. Rather, the Ohio asbestos causation statute requires that causation be determined on a defendant-by-defendant basis. The plaintiffs’ attorneys became aware of the decision during summary judgment briefing, but rather than ask for leave to supplement their experts’ reports, they argued that the Ohio asbestos causation statute did not require an expert report so long as there is factual evidence of exposure. The superior court disagreed, stating that the plaintiffs’ must still offer expert medical evidence of specific causation. The superior court also found untimely the plaintiffs’ subsequent request to supplement their experts’ reports.
The Delaware Supreme Court affirmed the superior court, holding that neither the Ohio causation statute nor subsequent case law intended to abrogate the general rule in Ohio toxic tort matters that a plaintiff must provide expert medical evidence:
- That the toxin is capable of causing the medication condition (general causation
- That the toxic substance in fact caused the claimant’s medical condition (specific causation).
The Supreme Court also held that the superior court did not abuse its discretion in denying plaintiffs’ request to supplement their experts’ reports.
Read the case decision here.