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"Cumulative" Asbestos Exposure Theory Rejected by the Supreme Court of Ohio

February 2018
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On February 8, 2018, the Supreme Court of Ohio issued an opinion in Schwartz v. Honeywell International, Inc., Slip Opinion No. 2018-Ohio-474, that undoubtedly will have a profound impact on Ohio asbestos cases going forward. In reversing the judgment of the Eighth District Court of Appeals, the Supreme Court held that a theory of causation based only on a plaintiff's cumulative exposure to various asbestos-containing products is insufficient to demonstrate that exposure to asbestos from a particular defendant's product was a substantial factor in causing plaintiff's asbestos-related disease under R.C. 2307.96. The full opinion can be accessed here.

The Schwartz court found that the "cumulative" exposure theory espoused by Carlos Bedrossian, M.D. is "incompatible with the plain language of R.C. 2307.96" because the statute (R.C. 2307.96(A)) requires an "individualized determination" that each defendant's conduct was a substantial factor in causing the plaintiff's disease. And the cumulative-exposure theory is also at odds with the statutory requirement (R.C. 2307.96(B)) that substantial factor causation be measured based on the manner, proximity, length, and duration of the exposure: "In saying that all non-minimal exposures count, Dr. Bedrossian’s theory completely disregards the manner, proximity, length, and duration of exposure." But even more basic, the Court exposed a fundamental flaw in the cumulative-exposure theory. Because Dr. Bedrossian's cumulative-exposure theory is premised on nonminimal exposures only—"minimal exposures" are excluded presumably because he does not think "it would be fair to include them"—he "is drawing a line based on a certain level of exposure; he is simply choosing to draw a line at a different place than the substantial-factor requirement." The Court acknowledged that the Sixth Circuit and the Ninth Circuit and a number of state courts had similarly rejected the cumulative-exposure theory.

Kelley & Ferraro, L.L.P. represented the plaintiff/appellee. McDermott, Will & Emery, L.L.P. and Willman & Silvaggio, L.L.P. represented defendant/appellant. Several amicus curiae briefs were submitted for both sides.

This Client Alert has been prepared by Tucker Ellis LLP for the use of our clients. Although prepared by professionals, it should not be used as a substitute for legal counseling in specific situations. Readers should not act upon the information contained herein without professional guidance.

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