A theory which posits that every nonminimal exposure to asbestos can be a substantial factor in causing asbestos-related disease is inconsistent with Ohio’s test for causation, the Ohio Supreme Court ruled.

Writing for the Court in an opinion released today, Justice R. Patrick DeWine explained that the theory—“cumulative-exposure theory”—does not meet the requirement of Ohio law that a
plaintiff show exposure to a particular manufacturer’s asbestos product was a substantial factor in causing the disease.

The ruling reversed a $1 million Cuyahoga County jury verdict against Honeywell International, which had been found five percent responsible for Kathleen Schwartz’s death from mesothelioma. The jury had found Schwartz’s exposure to asbestos from Honeywell’s Bendix brand brakes that her father changed in the family garage was a substantial factor in causing her disease.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the opinion.

Justice Patrick F. Fischer concurred in judgment, but wrote a separate opinion, stating the Court majority has not provided enough clarity to Ohio courts on how to consider future cases. He noted the state law does not define “substantial factor” and found the majority’s opinion is unclear about what distinguishes an exposure that is a substantial factor from an exposure that is not a substantial factor.

In a dissenting opinion, former Justice William O’Neill found that Schwartz’s estate provided enough evidence at trial for a jury to determine Honeywell was partially responsible for the death. He stated the Supreme Court was “categorically the wrong body to consider the weight of the evidence” and the Court should be more reluctant to overturn the decisions of juries. Justice O’Neill resigned on Jan. 26.

Family Sues Asbestos Makers
Mesothelioma is almost always caused by breathing asbestos fibers. Schwartz was exposed to asbestos mostly from her father, who worked as an electrician. After her death, her husband Mark Schwartz filed a lawsuit against a number of defendants whose products contained asbestos. The case proceeded to trial only against Honeywell. To succeed, Mark Schwartz had to prove Kathleen had been exposed to the asbestos from the brakes and that the exposure was a substantial factor in her contracting mesothelioma.

At the trial, Kathleen’s father testified that he was regularly exposed to asbestos dust at work.  He would wear his work clothes home and pick up his daughter from school in his work clothes. Moreover, his daughter assisted her mother in laundering the clothes.

Kathleen’s father also testified that he changed the brakes on the family cars about five to 10 times in the garage during the 18 years his daughter lived at home. He used only brakes made by Bendix Corporation, a company later acquired by Honeywell.

Kathleen and her siblings would use the garage to access the backyard, and her father stated that dust from the brakes—which contained asbestos-- would remain on his clothes when he finished working on the cars and while he played with his children. Kathleen’s mother testified that her daughter helped with the family laundry that could have included her father’s clothes worn while changing the brakes, but there was no specific evidence that Kathleen actually helped launder those clothes.

Pathologist Carlos Bedrossian testified that there is no known minimum amount of asbestos exposure that does not pose a risk of contracting mesothelioma. According to Dr. Bedrossian, Kathleen’s exposure to the Bendix brake dust and to the asbestos dust from her father’s work clothes were both contributing factors to her “total cumulative dose” of asbestos. He concluded her cumulative exposure to the dust caused the disease.

Honeywell twice requested a directed verdict from the trial court, arguing Mark Schwartz failed to present sufficient evidence that Kathleen’s exposure to asbestos from the brakes was a substantial factor in causing her disease. The court denied the motions and the jury entered a judgment against Honeywell for about $1 million. Honeywell appealed to the Eighth District Court of Appeals, which affirmed the trial court’s decision. The company appealed to the Supreme Court.

Cumulative Exposure Theory Does Not Meet State Law Standard, Company Argues
Honeywell argued that the cumulative-exposure theory put forth by Schwartz’s expert, Dr. Bedrossian, does not satisfy the substantial-factor causation requirement in R.C. 2307.96. Justice DeWine explained the Ohio General Assembly adopted a substantial factor test as part of its 2004 asbestos litigation reform efforts. To determine whether an exposure to a particular defendant’s asbestos was a substantial factor, a jury or court must consider the “manner, proximity, frequency, and length” of the injured person’s exposure to the asbestos.

The Court majority wrote that Dr. Bedrossian did not testify that Kathleen’s exposure to the brakes was a substantial factor in causing her disease. Instead, he opined that her exposure to the brakes contributed to her cumulative exposure to asbestos. The opinion noted that the cumulative exposure theory is based on two premises — that any amount of asbestos exposure may cause mesothelioma and that it is impossible to determine which particular exposure to carcinogens cause an illness. That means the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather finds that all exposures contribute to a cumulative dose, the opinion explained.

“This theory is incompatible with the plain language of R.C. 2307.96. The statute requires an individualized determination for each defendant: there must be a finding that the conduct of a ‘particular defendant was a substantial factor’ in causing the plaintiff’s disease,” Justice DeWine wrote. “But the cumulative-exposure theory examines defendants in the aggregate: it says that because the cumulative dose was responsible, any defendant that contributed to that cumulative dose was a substantial factor.”

The Court reasoned it is impossible to reconcile a requirement by law of an individualized finding of substantial causation for each defendant with a theory that says the conduct of every defendant that contributed to the overall exposure is a substantial cause. The theory is at odds with the requirement that causation be measured by the manner, proximity, length, and duration of exposure to a particular source, the opinion stated.

“Indeed, a major failing of the cumulative-exposure theory is that it does not consider the relationship that different exposures may have to the overall dose to which an individual is exposed,” Justice DeWine wrote.

The Court concluded that by adopting the substantial factor standard, Ohio lawmakers demanded a showing greater than an undefined contribution to the cumulative exposure in order to hold a company liable.

Schwartz Failed to Show Impact of Brake Dust
Schwartz’s expert failed to show that the manner, proximity, frequency, and length of her exposure to Bendix brake dust was a substantial factor in causing her disease, the Court ruled. Nor was other evidence about her exposure to the brake dust sufficient to establish causation.

The Court explained that Kathleen’s exposure to brake dust had to be considered in context with her other exposure to asbestos, which came from her father’s work clothes. The opinion noted that Schwartz’s exposure to products from her father’s work as an electrician, where he came in contact with asbestos nearly every day of work for 33 years, “contrasts strongly with the limited and irregular exposure” she might have had as a result of the brake jobs.

The Court reversed the Eighth District’s decision and ruled the trial court should have granted Honeywell a directed verdict.

Concurrence Urges Lawmakers to Revise Statute
In his concurrence, Justice Fischer concluded that Mark Schwartz failed to offer testimony that conclusively linked his wife’s exposure to the Bendix brakes to her mesothelioma, but called it “a close case that highlights the need for a more precise definition” of “substantial factor.”

Without a better definition, the lack of clarity opens to door for courts to apply the statute inconsistently, he stated.

“Given the ambiguous nature of the term and the lack of guidance in the majority opinion, I encourage the General Assembly to consider amending the statute to provide clearer direction to courts applying R.C. 2307.96,” he wrote.

Dissent Found Evidence Sufficient
In his dissent, former Justice O’Neill stated that Schwartz’s evidence was sufficient enough to defeat a directed verdict and allow the jury to decide if the requirements were met to hold Honeywell liable.

He wrote that the family was able to show the frequency of the brake jobs, the period of time Schwartz might have been exposed to the dust, and how she might have come into contact with it.

“If every exposure to asbestos can independently cause mesothelioma, surely exposures like the ones described by the witnesses in this case could be a substantial factor in causing an individual to later develop the illness,” he wrote.

He stated that the majority might believe the evidence presented in trial court was not “specific” enough to prove the manner, proximity, frequency, and length, but he noted there was evidence presented that met the statute’s requirement.

“Ultimately, a determination of the weight to give that evidence is for the jury—not for today’s majority—to make based on the testimony it hears about the circumstances of the exposures,” he concluded.

2016-1372. Schwartz v. Honeywell International, Inc., Slip Opinion No. 2018-Ohio-474.

View oral argument video of this case.

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