On May 5, 2016, the Eighth District Court of Appeals (Cuyahoga County, Ohio) issued two opinions that will have a significant impact on Ohio asbestos litigation: (1) Watkins v. Affinia Group, et al., Eighth Dist. App. No. 102538, 2016-Ohio-2830; and (2) Blandford v. A.O. Smith Corp., et al., Eighth Dist. App. No. 103030, 2016-Ohio-2835. Summarized below are the key facts and rulings and the potential impact of these decisions. To review the court opinions, please click on the links below.
The Watkins case was tried to verdict against lone remaining defendant Honeywell International Inc. (as successor-in-interest to the Bendix Corp.) (“Honeywell”). Plaintiff’s attorney was Levy Konigsberg, L.L.P., with McDermott & Hickey, L.L.C. acting as local counsel. The jury returned a plaintiff’s verdict of $815,000 with 40% attributed to Honeywell. Honeywell appealed, and the Eighth District reversed the judgment.
The decedent in Watkins developed malignant pleural mesothelioma, and the jury found that the decedent’s handling of Bendix brakes was a substantial factor in causing the illness. The decedent performed numerous brake jobs involving Bendix brakes on his personal automobiles over the course of several decades. The Bendix brakes at issue were thought to contain chrysotile asbestos fibers as opposed to the amphibole asbestos contained in some of the other products he was exposed to during his working career, e.g., pipe insulation. The plaintiff’s two causation experts, Drs. James A. Strauchen and Arthur L. Frank, shared the opinion that the decedent’s exposure to chrysotile asbestos from the Bendix brakes was a substantial factor of his mesothelioma under the “every exposure” and “cumulative dose” theories; i.e., every exposure to asbestos is a substantial contributing cause to the development of mesothelioma because asbestos disease is a cumulative, dose-response process. Prior to trial, Honeywell moved in limine to exclude Drs. Strauchen and Frank from testifying or, in the alternative, requested a Daubert hearing to examine the reliability of their opinions. Honeywell argued that the experts’ opinions were not based on reliable science because their “every exposure” and “cumulative dose” theories are not based on scientifically reliable principles and methodologies. The trial court denied the motions in limine without a Daubert hearing. Honeywell renewed its objections both after the plaintiff’s case-in-chief and at the conclusion of the evidence, and the trial court again denied the motions.
On appeal, the Eighth District reversed the judgment, finding the trial court admitted the testimony in error by not holding a Daubert hearing because, without a hearing, the trial court did not properly execute its duty as “gatekeeper” and thus the appellate court could not independently determine whether Drs. Strauchen’s and Frank’s causation theories were supported by sufficient data or based on reliable principles and method. While the Eighth District based its reversal on procedure, the Watkins court discussed how plaintiff’s experts’ “cumulative dose” and “every exposure” opinions must be tested for reliability. In its opinion, the court detailed how the expert causation requirement in toxic tort cases in Ohio is two-tiered: (1) general causation – a methodology used to determine whether a substance is capable of producing an adverse health effect in humans; and (2) specific causation – a methodology used to determine whether or not exposure to a particular substance did, in fact, cause the plaintiff’s specific disease. The appellate court suggested that the plaintiff’s experts’ “every exposure” and “cumulative dose” theories satisfy only the general causation requirement.
The concrete takeaway from Watkins is that the Eighth District will now require the Cuyahoga County Court of Common Pleas, that oversees a specially designated asbestos docket handling thousands of asbestos cases per year, to hold a Daubert hearing once a defendant challenges the admissibility of the testimony of the plaintiff’s experts’ opinions on “cumulative dose” and “every exposure.” Here, the failure of the trial court to hold a Daubert hearing under these circumstances resulted in the reversal of a judgment in favor of the plaintiff. A more implicit takeaway from Watkins is that the Eighth District may have sent a message that it is inclined to substantively determine, should this issue present itself to the court after a full Daubert hearing (albeit under an “abuse of discretion” standard of review), that the “cumulative dose” and “every exposure” causation theories are scientifically unreliable due to the lack of consideration of specific causation. This could have a profound impact in favor of the Ohio asbestos defense bar as it would severely diminish the plaintiffs’ ability to avoid summary disposition on causation.
The trial court granted summary judgment for a supplier of asbestos-containing pipe insulation (Edward R. Hart Company (“Hart”)) under its interpretation of the Ohio Supplier Liability Act (R.C. 2307.78). On appeal, the Eighth District upheld the trial court’s order granting summary judgment for Hart on strict liability under R.C. 2307.78(B), but reversed the trial court’s order granting summary judgment as to the issue of whether Hart was negligent under R.C. 2307.78(A). The plaintiff’s counsel at trial and on appeal was Kelley & Ferraro, L.L.P.
In Blandford, the decedent who developed malignant mesothelioma testified that he worked for over 30 years as a union pipefitter and that approximately 40-50 percent of the time, pipe insulation work was required. The decedent testified that he recalled Hart supplying and using asbestos-containing Kaylo pipe insulation and that he worked together with Hart throughout his career.
In affirming summary judgment on the “substitute liability” issue, the Eighth District upheld its prior holdings in Potts v. 3M Co., Eighth Dist. App. No. 87977, 2007-Ohio-1144, ¶¶19, 23. Specifically, the appellate court held that under R.C. 2307.78(B)(1) and (2), Hart cannot “step in the shoes” and be liable for the bankrupt manufacturer of the pipe insulation supplied by Hart (Owens Corning) because bankruptcy did not (1) prevent Owens Corning from being subject to judicial process and (2) Owens Corning’s bankruptcy did not necessarily result in its being insolvent, as it is a fully functioning, profitable organization today with a bankruptcy trust worth billions in asbestos reserves.
In reversing the trial court’s order granting summary judgment on the issue of statutory negligence, the Eighth District analyzed R.C. 2307.78(A)(1), providing that a supplier is liable on a products liability claim if the claimant establishes by a preponderance of the evidence that the supplier was negligent and that this negligence was the proximate cause of the claimant’s injury. The court stated that this statutory negligence claim can take the form of the lack of a proper warning accompanying a latently dangerous product. Here, the appellate court found that the evidence showed genuine issues of material fact as to when Hart became aware of the hazards associated with asbestos, and specifically found there was no evidence that Hart was not aware of the hazards of asbestos during the relevant time frame (1955 through the 1970s).
The Blandford decision underscores the importance of supplier defendants to present evidence of when the supplier became aware of the asbestos hazards in order to avoid the court in this jurisdiction finding ambiguity and an issue of material fact in relation to a negligent failure to warn claim. Blandford also shows that, although not argued in Hart’s summary judgment motion, the Eighth District considers the traditional exposure and substantial factor analysis to be germane to its consideration of statutory negligence claims. Accordingly, this argument needs to be fully developed by supplier defendants so that it is placed in front of the court for its consideration at the summary judgment stage.