Featured Expert Contributor, Mass Torts—Asbestos
Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA
The Supreme Court of Ohio has held that a cumulative exposure theory, which posits that every nontrivial exposure to asbestos is a substantial factor in causing mesothelioma, does not satisfy the Ohio statute governing causation in asbestos cases. Schwartz v. Honeywell International Inc., No. 2016-1372, 2018 WL 793606, at *1 (Ohio 2018).
Some history is in order. In Horton v. Harwick Chemical Corp., 653 N.E.2d 1196 (1995), the Supreme Court of Ohio rejected the frequency, regularity, and proximity test for substantial causation developed in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-1163 (4th Cir. 1986). The Horton court criticized the Lohrmann test as “overly burdensome” for plaintiffs and “unnecessary.” Id. at 1199.
The Ohio legislature disagreed. Nine years after Horton, it stepped in to adopt the Lohrmann test by establishing “specific factors” to be considered in determining causation. Schwartz, 2018 WL 793606, at *3. The Ohio statute required the plaintiff prove the defendant’s conduct was a substantial factor in causing the plaintiff’s injury, taking into account the manner, proximity, frequency, and length of the plaintiff’s asbestos exposure. Ohio Rev. Code Ann. § 2307.96 (2018).
Earlier this year in Schwartz, the Supreme Court of Ohio came full circle. The court considered whether a cumulative exposure theory, which is incompatible with Lohrmann, is also incompatible with the Ohio statute. See generally Holcomb v. Georgia Pacific, LLC, 289 P.3d 188, 197 (Nev. 2012) (Holding that “courts that adopt the three-factor test of frequency, regularity, and proximity regularly reject the ‘any’ exposure argument.”).
The court held that the Ohio statute precludes use of such a cumulative exposure theory. First, the Ohio statute requires that the conduct of a particular defendant be a substantial factor in causing the plaintiff’s disease. Ohio Rev. Code Ann. § 2307.96(A) (2018). The statute’s requirement of an individualized finding of substantial factor causation for each defendant cannot be reconciled with a theory that says any defendant that contributes to the overall exposure is a substantial factor. Schwartz, 2018 WL 793606, at *3.
Second, the cumulative exposure theory is at odds with the statute’s requirement that causation be measured based on the manner, proximity, frequency, and length of exposure. See Ohio Rev. Code Ann. § 2307.96(B) (2018). If all nontrivial exposures count, the Legislature might as well have omitted from the statute these factors regarding matters such as proximity and length of exposure. Schwartz, 2018 WL 793606, at *3.
Finally, the Schwartz court commented on the tension between Ohio’s substantial factor causation test and the opinion of the plaintiff’s expert witness that only trivial exposures are not causative. As the court observed, even minimal exposures contribute in some minimal way to the cumulative dose. Accordingly, the plaintiff’s expert must have excluded trivial exposures for some reason other than that they don’t contribute to the cumulative exposure.
But the expert’s willingness to draw a line different from the one drawn by the legislature was at the crux of the problem: “like the substantial-factor requirement, he is drawing a line based on a certain level of exposure; he is simply choosing to draw the line at a different place than the substantial-factor requirement.” Schwartz, 2018 WL 793606, at *4.
The Schwartz decision shows that the cumulative exposure theory cannot be squared with substantial factor causation. Because the Ohio statute requires proof that the defendant’s conduct was a substantial factor in causing the plaintiff’s mesothelioma, the plaintiff’s expert witness cannot meet the burden of showing causation by use of a theory that assumes every defendant making a nontrivial contribution to exposure is a cause of the plaintiff’s injury.