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Schwartz v. Honeywell International, Inc.

Supreme Court of Ohio

January 24, 2018

Schwartz, Exr., Appellee, et al.
Honeywell International, Inc., Appellant.

          Submitted October 17, 2017

          Appeal from the Court of Appeals for Cuyahoga County, No. 103377, 2016-Ohio-3175.

          Kelley & Ferraro, LLP., James L. Ferraro, John Martin Murphy, Shawn M. Acton, Anthony Gallucci, and Matthew A. McMonagle, for appellee.

          McDermott, Will & Emery, L.L.P., and Michael W. Weaver; and Willman & Silvaggio, L.L.P., Steven G. Blackmer, and Melanie M. Irwin, for appellant.

          Bevan & Associates, L.P.A., Inc., Thomas W. Bevan, Patrick M. Walsh, and Joshua P. Grunda, urging affirmance for amici curiae 51 Concerned Physicians, Scientists, and Scholars Regarding Causation of Asbestos-Related Disease.

          Shook, Hardy & Bacon, L.L.P., and Victor E. Schwartz; and Crowell & Moring, L.L.C., and William L. Anderson, urging reversal for amicus curiae Coalition for Litigation Justice, Inc.

          Sutter O'Connell Co. and Douglas R. Simek; and Ulmer & Berne, L.L.P., and James N. Kline, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

          Vorys, Sater, Seymour and Pease, L.L.P., Richard D. Schuster, Daniel E. Shuey, and Damien C. Kitte, urging reversal for amici curiae Ohio Manufacturers' Association, Ohio Council of Retail Merchants, Ohio Tire & Automotive Association, Ohio Alliance for Civil Justice, and the Honorable William Seitz.

          DEWINE, J.

         {¶ 1} To recover on a claim for asbestos-related injuries, a plaintiff must show that exposure to a particular defendant's product was a "substantial factor" in causing her asbestos-related injuries. The primary question here is whether the "substantial factor" requirement may be met through a "cumulative-exposure theory, " which postulates that every non-minimal exposure to asbestos is a substantial factor in causing mesothelioma. We conclude that the cumulative-exposure theory is inconsistent with the test for causation set forth in R.C. 2307.96 and therefore not a sufficient basis for finding that a defendant's conduct was a substantial factor in causing an asbestos-related disease.

         {¶ 2} The court of appeals held otherwise, so we reverse its judgment. And because the evidence presented in this case was not sufficient to show that exposure to asbestos from the manufacturer's product was a substantial factor in the causing the injury, we enter judgment for the manufacturer.

         I. Background

         {¶ 3} Kathleen Schwartz died from mesothelioma, a disease almost always caused by breathing asbestos fibers. Kathleen's exposure to asbestos came largely through her father, who worked as an electrician. Growing up in the family home, Kathleen was exposed to asbestos fibers from her father's work clothes, which she often helped launder. In addition, on occasion during that period, her father installed new brakes in the family cars. The brakes, which contained asbestos, were manufactured by Bendix Corporation.

         {¶ 4} Following Kathleen's death, Mark Schwartz ("Schwartz"), Kathleen's husband, filed a lawsuit against a number of defendants. Eventually, the case proceeded to trial against only one-Honeywell International, Inc., the successor-in-interest to Bendix. To succeed on his claim against Honeywell, Schwartz had to show that Kathleen had been exposed to asbestos from the brakes and that that exposure was a substantial factor in her contracting mesothelioma. R.C. 2307.96. The issue at trial was-and here on appeal is-whether Kathleen's exposure to asbestos from Bendix brake products was a substantial factor in causing her mesothelioma.

         {¶ 5} During the jury trial, Schwartz presented testimony from Kathleen's father and mother about how Kathleen may have been exposed to asbestos dust from her father's brake work and from his occupation as an electrician. Kathleen's exposure to asbestos from Bendix products was through her father's changing of the brakes in the family cars-something that occurred five to ten times in the garage of the family home during the 18 years Kathleen lived there. Kathleen and her siblings used the garage to access the backyard, where they would play. Her father testified that the dust from changing the brakes would remain on his clothes and that he would play with the children afterwards without changing those clothes. Kathleen's mother described how Kathleen would help do the family's laundry, which may have included the clothes her father had worn while changing brakes. But there was no specific evidence presented that Kathleen helped wash those clothes.

         {¶ 6} Kathleen was also exposed to asbestos from other manufacturers' products by virtue of her father's full-time employment as an electrician. Her father testified that he was regularly exposed to "clouds of asbestos dust" while at work. He worked with products containing asbestos almost every work day. He would drive the family car home from work, pick up Kathleen from school, and play with his children without changing his clothes. And Kathleen's mother stated in her affidavit that Kathleen helped wash her father's work clothes.

         {¶ 7} Dr. Carlos Bedrossian, a pathologist, testified as Schwartz's expert on causation. According to Dr. Bedrossian, there is no known threshold of asbestos exposure "at which mesothelioma will not occur." He opined that Kathleen'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. He 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. Thus, according to Dr. Bedrossian, ...

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