On May 26, 2016, the 8th District Court of Appeals (Cuyahoga County, Ohio) issued an opinion in Schwartz v. Honeywell Internatl., Inc., 8th Dist. App. No. 103377, 2016-Ohio-3175, permitting a thinly veiled “each and every” exposure theory of causation in asbestos cases, thus opening the door for more claims to reach juries.
The court issued the Schwartz opinion close on the heels of another asbestos opinion, Watkins v. Affinia Group, et al., 8th Dist. App. No. 102538, 2016-Ohio-2830.1 The Watkins court, consisting of Judge Eileen T. Gallagher, Eileen A. Gallagher, and Stewart, reversed the trial court for failing to conduct a Daubert hearing on the reliability of the “each and every” exposure theory. The Schwartz court, consisting of Judges Sean Gallagher, Keough, and Celebrezze upheld a judgment in excess of $1 million where experts advanced the same theory. The only difference was that the trial court permitted and conducted a Daubert hearing in Schwartz.
Kathleen Schwartz was in her early 40s when she developed peritoneal mesothelioma and died, survived by her husband and four young children. Schwartz had claimed secondary exposure from her father Arthur Webber while growing up in the family home and doing his laundry. Webber testified to a wide variety of exposures during his career in heavy industry. Webber additionally testified to performing approximately six brake jobs on family vehicles using Bendix brand brakes. This, coupled with his inspection of installed Bendix brakes, allegedly contaminated his clothing with “a lot of brake dust.”
Schwartz was tried to a verdict against defendant Honeywell International, Inc. (as
successor-in-interest to the Bendix Corp.) (“Honeywell”) in June 2015. The apportioned verdict to Honeywell was slightly in excess of $1 million. Plaintiff was represented by Kelley & Ferraro.
The parties filed cross-appeals. Honeywell attacked the admission of the opinions of pathologist Carlos Bedrossian, M.D. and industrial hygienist Joseph Guth, CIH, Ph.D., based on a failure to satisfy Evid.R 702 and Daubert. Honeywell argued that Bedrossian’s opinions – (1) that “an individual’s total and cumulative exposure to asbestos, from any and all products, containing any and all fiber types” is a significant contributing factor to the development of mesothelioma, and (2) his opinion that evidence of any asbestos exposure from a product (regardless of fiber type or dose) establishes “until proven otherwise” that the product caused an individual’s mesothelioma – were based on an untested hypothesis, lacking any indicia of reliability. Similarly, Honeywell challenged Dr. Guth’s opinions as lacking a quantitative component to support his conclusion that plaintiff’s father’s limited work with Bendix brakes substantially contributed to increasing plaintiff’s risk for developing peritoneal mesothelioma.
The court, first qualifying Bedrossian and Guth as experts in their respective fields, reaffirmed its decision in Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208, ruling that “[a]n expert’s opinion need not be generally accepted in the scientific community to be sufficiently reliable and even a novel or controversial opinion may be reliable if founded on a proper methodology.” The court held that Bedrossian’s opinion was not, in fact, an “each and every exposure” opinion. Rather, Bedrossian “considered the facts of the case, involving the manner, proximity, and frequency of exposure, and testified that it was Schwartz’s cumulative exposure to asbestos, comprised of exposures from her father’s brake work and from his job, that caused her mesothelioma. He found these exposures to be substantial, significant, and contributing factors leading to Schwartz’s development of mesothelioma.” The distinction without a meaning is thatBedrossian defines “significant” exposures, and, therefore, causative exposures as every exposure “above background [asbestos levels.]”
A quantitative analysis regarding a dose response relationship to the subject product was similarly not necessary for rendering admissible Dr. Guth’s challenged testimony. Dr. Guth opined that plaintiff would have been at an increased risk for mesothelioma “because we don’t know of a level that was safe and we do know these fibers derive from that kind of product and moving through the home and through the laundry process would have continued to expose her for literally years.” The court held that because Bedrossian and Guth relied on a number of sufficiently reliable sources to support their opinions and because their opinions were relevant and satisfied the mandates of Evid.R. 702 and Daubert, Honeywell’s assignments of error were overruled.
Plaintiff filed a cross-appeal and claimed that its punitive damages claim should not have been disposed of by directed verdict. The court agreed, relying heavily on the testimony of Dr. David Rosner, who explained the history of asbestos hazard awareness and cited the fact that Bendix was manufacturing asbestos-free alternatives during the time periods that Webber worked with Bendix brakes.
The court affirmed the judgment in favor of plaintiffs and reversed the trial court’s directed verdict on punitive damages. A new trial on plaintiff’s punitive damages claim will be instituted. The full opinion can be accessed here.