Schwartz, Exr., Appellee, et al.
Honeywell International, Inc., Appellant.
Submitted October 17, 2017
from the Court of Appeals for Cuyahoga County, No. 103377,
& Ferraro, LLP., James L. Ferraro, John Martin Murphy,
Shawn M. Acton, Anthony Gallucci, and Matthew A. McMonagle,
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.
& 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.
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,
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.
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
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.
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
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.