Opinion · Ohio Supreme Court
Horton v. Harwick Chemical Corp.
73 Ohio St. 3d 679
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1995-09-13
- Topic
- general
same, in an asbestosis case | same, in an asbestosis case
Citator
- Cited by
- 335 opinions
[This opinion has been published in Ohio Official Reports at73 Ohio St.3d 679
.]
HORTON ET AL., APPELLANTS, v. HARWICK CHEMICAL CORPORATION; A.W.
CHESTERTON ET AL., APPELLEES.
ROBERT DERRICK, APPELLANT v. JOHN CRANE, INC., ET AL., APPELLEES.
[Cite as Horton v. Harwick Chem. Corp., 1995-Ohio-286
.]
Civil procedure—Appropriate summary judgment standard for proving causation
in asbestos cases—Torts—Alternative liability cannot apply, when.
1. For each defendant in a multidefendant asbestos case, the plaintiff has the
burden of proving exposure to the defendant’s product and that the product
was a substantial factor in causing the plaintiff’s injury.
2. A defendant need not prove that he was exposed to a specific product on a
regular basis over some extended period of time in close proximity to where
the plaintiff actually worked in order to prove that the product was a
substantial factor in causing his injury. (Lohrmann v. Pittsburgh Corning
Corp. [C.A.4, 1986], 782 F.2d 1156
, disapproved.).
3. Summary judgment is proper in an asbestos case in the same circumstances
as in any other case, i.e, when, looking at the evidence as a whole, (1) no
genuine issue of material fact remains to be litigated, (2) the moving party
is entitled to judgment as a matter of law, and (3) it appears from the
evidence, construed most strongly in favor of the nonmoving party, that
reasonable minds could only conclude in favor of the moving party.
4. Alternative liability cannot apply if the defendants’ products do not create
a substantially similar risk of harm.
Nos. 94-115 and 94-1041—Submitted January 11, 1995—Decided September 13,
1995.)
APPEALS from the Court of Appeals for Montgomery County, Nos. 13872 and
14159.
SUPREME COURT OF OHIO
__________________
{¶ 1} These consolidated cases arise from the asbestos-related injuries
allegedly suffered by appellants Robert S. Derrick and Edward Horton. Edward
Horton worked for Dayton Tire and Rubber Company (“DTR”) from 1946 to 1980.
During his first four years at DTR, Horton worked in the general services
department, where he performed cleaning duties throughout the DTR plant. From
1950 until his retirement, Horton worked as a tire builder, except for one year that
he spent as a bias cutter in the tire building department. Horton alleges that his
exposure to asbestos fibers at the DTR plant caused him to contract asbestosis,
asbestos-related pleural thickening, and small airways obstruction.
{¶ 2} On July 13, 1990, Horton and others filed a personal injury action in
the Summit County Court of Common Pleas against various manufacturers and
distributors of asbestos products. Mrs. Horton filed a claim for loss of consortium.
The part of the case dealing with the Hortons was transferred to the Montgomery
County Common Pleas Court on November 15, 1990.
{¶ 3} In 1992, seventeen of the defendants moved the court for summary
judgment. On December 30, 1992, the court sustained the motions of thirteen
defendants, overruled the motions of two defendants, and struck the motions of two
as untimely.
{¶ 4} The Hortons appealed to the Second District Court of Appeals the
entry of summary judgment in favor of the thirteen. They eventually dismissed
their appeal on the record as to eight, leaving the following five defendants: (1)
A.W. Chesterton Company (“Chesterton”), (2) McNeil (Ohio) Corporation
(“McNeil [Ohio]”), (3) McNeil-Akron, Inc. (“McNeil-Akron”), (4) Pittsburgh
Corning Corporation (“Pittsburgh Corning”), and (5) John Crane, Inc. (“John
Crane”). McNeil (Ohio) and McNeil-Akron settled with the Hortons during the
pendency of their appeal. On November 23, 1993, the appellate court affirmed the
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January Term, 1995
judgment of the trial court in favor of appellees, Chesterton, Pittsburgh Corning,
and John Crane.
{¶ 5} Derrick, a lifetime nonsmoker but for a few months in his youth,
worked at DTR from 1942 through 1975, except for two years of military service
from 1953 to 1955. Derrick served in a variety of capacities at the plant, including
working in the receiving department, as a janitor, and in the Banbury mixer
department. He alleges that as a result of his exposure to asbestos fibers in the
course of his employment at DTR, he contracted asbestosis and asbestos-related
pleural thickening. On February 8, 1991, Derrick filed a personal injury action in
Montgomery County Common Pleas Court, alleging that his illness was the direct
and proximate result of the shedding of asbestos fibers into the air of his work
environment by the defective, asbestos-containing products of the named
defendants.
{¶ 6} Fourteen of the defendants moved the trial court for summary
judgment. Derrick dismissed six of those defendants on the record, and on July 6,
1993, the court sustained the motions of five of the remaining defendants, and
overruled the motion of one other.
{¶ 7} Derrick appealed to the Second District Court of Appeals the entry of
summary judgment in favor of four defendants: (1) Chesterton, (2) McNeil (Ohio),
(3) Pittsburgh Corning, and (4) John Crane. According to the opinion of the court
of appeals, McNeil(Ohio) settled with Derrick after the appeal was filed.
{¶ 8} The appellate court affirmed the trial court’s summary judgments in
favor of appellees Chesterton, Pittsburgh Corning, and John Crane on March 30,
1994. Derrick appealed to this court and we consolidated his appeal with that of
appellants Edward and Dorothy Horton.
{¶ 9} In both of these cases, the appellate court employed the “frequency-
proximity” test set forth in Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986),
782 F.2d 1156
, to determine whether plaintiffs’ evidence regarding causation was
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SUPREME COURT OF OHIO
sufficient to withstand defendants’ summary judgment motions. Under the
Lohrmann test, to escape summary judgment a plaintiff must present evidence of
“exposure to a specific product on a regular basis over some extended period of
time in proximity to where the plaintiff actually worked.” Id. at 1162-1163. This
court never has specifically adopted the Lohrmann test.
{¶ 10} Both plaintiffs presented evidence that during the time that they
worked for DTR asbestos-containing products of each of the appellees were present
in the facility. The trial and appellate courts held, however, that neither plaintiff
demonstrated exposure to any of the appellees’ products on a regular basis over
some extended period of time in proximity to where the plaintiff actually worked,
and therefore granted summary judgment to the appellees.
{¶ 11} These case are before this court upon the allowance of motions to
certify the records.
____________________
Michael F. Colley Co., L.P.A., Daniel N. Abraham, Thomas F. Martello,
Jr., and David K. Frank, for appellants.
Baden & Jones Co., L.P.A., Thomas P. Erven and Nancy R. Blankenbuehler,
for appellee A.W. Chesterton Company.
Day, Cook & Gallagher, David L. Day and Dale D. Cook, for appellee John
Crane, Inc.
Hermann, Cahn & Schneider, Gary D. Hermann, Jay H. Salamon and
Romney B. Cullers, for appellee Pittsburgh Corning Corporation.
A. Russell Smith and R. Bryan Nace, urging reversal for amicus curiae, Ohio
Academy of Trial Lawyers.
Charles R. Armstrong and Carolyn T. Wonders, urging reversal for amicus curiae,
United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, CLC.
Joyce Goldstein Co., L.P.A., and Joyce Goldstein, urging reversal for
amicus curiae, Cleveland Building and Construction Trades Council, AFL-CIO.
4
January Term, 1995
Adams Legal Services and Russell J. Adams, urging reversal for amicus
curiae, Asbestos Victims of America.
Davis & Young Co., L.P.A., and Martin J. Murphy, urging affirmance for
amicus curiae, Owens-Corning Fiberglas Corporation.
Ronald G. Rossetti, Jr., urging affirmance for amicus curiae, Ohio
Association of Civil Trial Attorneys.
Vorys, Sater, Seymour & Pease, Mary Ellen Fairfield, Richard D. Schuster
and Brent C. Taggart, urging affirmance for amici curiae, Acands, Inc., BF
Goodrich Company and the Goodyear Tire & Rubber Company.
Baker & Hostetler, Randall L. Solomon and John H. Burtch, urging
affirmance for amicus curiae, Center for Claims Resolution.
Bunda, Stutz & Dewitt, Robert A. Bunda, Barbara J. Stutz and Anne Y.
Koester, urging affirmance for amicus curiae, Owens-Illinois, Inc.
____________________
PFEIFER, J.
{¶ 12} We are asked in this case to set forth the appropriate summary
judgment standard for causation in asbestos cases, and specifically, whether Ohio
courts should adopt the Lohrmann test. While this court is aware of the docketing
problems that may exist with asbestos-exposure cases, we will not cause plaintiffs
in such cases to carry a greater summary judgment burden than other personal
injury plaintiffs. In our view, the Lohrmann standard casts judges in an
inappropriate role, is overly burdensome, and is unnecessary.
{¶ 13} We are also asked in this case to adopt alternative liability as a
possible theory for recovery. This court has recognized the viability of alternative
liability in the past, but we find it inappropriate in the cases at hand, since there is
no evidence that the defendants’ products created a substantially similar risk of
harm.
I
5
SUPREME COURT OF OHIO
{¶ 14} In Pang v. Minch (1990), 53 Ohio St.3d 186
,559 N.E.2d 1313
, paragraph five of the syllabus, this court held that “[w]here a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is on the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm.” In the asbestos cases, the plaintiff also has the burden of proving exposure to asbestos-containing products. Goldman v. Johns-Manville Sales Corp. (1987),33 Ohio St.3d 40, 42
,514 N.E.2d 691, 693
.
{¶ 15} The Lohrmann test purports to be a tool for determining whether a
plaintiff’s evidence of causation, i.e., whether a particular product was a substantial
factor in producing the plaintiff’s injury, is sufficient to withstand summary
judgment. However, the test creates less a legal standard than a medical or
scientific one. Under Lohrmann, a product cannot possibly cause an injury unless
a plaintiff has worked in close proximity to the product on a regular basis for an
extended period of time. By employing the Lohrmann test, the trial judge usurps
the traditional role of the medical or scientific expert, establishing a mechanistic
test regarding causation which no contrary expert testimony can overcome. The
Lohrmann test puts trial judges in the position of having to find, for instance, that
sporadic, intense exposure to asbestos over an extended period of time cannot cause
asbestos-related disease.
{¶ 16} In effect, the Lohrmann test requires judges to take judicial notice
that an asbestos-containing product can cause injury only when someone works in
close proximity to the product on a regular basis over an extended period of time.
Evid. R. 201(B) describes the kind of facts which may be judicially noticed:
“A judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
6
January Term, 1995
{¶ 17} We certainly cannot say that there is no reasonable dispute as to what
level of exposure can cause asbestos-related diseases. In refusing to adopt the
Lohrmann test in Schultz v. Keene Corp. (N.D.Ill. 1990), 729 F.Supp. 609, 615
, the
court wrote:
“[The] rule * * * flies in the face of evidence which indicates that short
periods of exposure—from one day to three months—can cause significant damage
to the lungs. See Workplace Exposure to Asbestos: Review and Recommendations,
U.S. Dep't of Health and Human Servs. and U.S. Dep't. of Labor, DHHS (NIOSH)
Publication No. 81-103, at 3 (Nov. 1980).”
{¶ 18} Medical science suggests that very limited exposure to asbestos can
cause mesothelioma, perhaps the worst of asbestos-related diseases. See, e.g.,
“Mesothelioma: Has Patient Had Contact With Even Small Amount of Asbestos?,”
257 JAMA 1569
(Mar. 27, 1987); New York Academy of Sciences, Cancer and the Worker (1977) 50, cited with approval in Hardy v. Johns-Manville Sales Corp. (E.D. Tex. 1981),509 F.Supp. 1353, 1355
, reversed on other grounds,681 F.2d 334
(C.A.5, 1982).
{¶ 19} The temporal aspects of the Lohrmann test are scientifically dubious.
“The length of time that an individual was exposed to asbestos does not in itself
determine how serious the injury will be. Several factors, including individual
idiosyncrasy, the intensity of the exposure, and the nature of the contaminant all
play a part in the development of the disease.” Schultz, supra,
729 F.Supp. at 615
, citing Zurich Ins. Co. v. Raymark Indus., Inc. (1987),118 Ill.2d 23, 37
,514 N.E.2d 150, 156
.
{¶ 20} The proximity aspect of the Lohrmann test also chooses sides in a
scientifically disputed area. In these cases, Dr. Kenneth S. Cohen, a registered
professional engineer, certified industrial hygienist, and asbestos inspector who
holds a PhD in occupational health, testified through affidavit that asbestos fibers
can travel significant distances through the air, resulting in substantial asbestos
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SUPREME COURT OF OHIO
exposure even to employees who are not working directly or in close proximity to
any product containing asbestos.
{¶ 21} Dr. Cohen described in his affidavit the process of “re-entrainment,”
by which the physical action of air movement, vibration, or physical trauma causes
aerodynamically active asbestos fibers and particles to “take flight” and sail into
the air. He stated that it was “more likely than not that some of the fibers and
particles released in one corner of the [DTR] plant would travel on drafts and air
currents throughout the plant, including to its furthest opposite point.” Dr. Cohen
stated that the theory that a worker would only be exposed to asbestos released in
the immediate vicinity of his workplace is a “scientific impossibility,” due to the
aerodynamic quality of the fibers and the plant’s inevitable air turbulence. Dr.
Cohen stated that the plaintiffs “were more likely than not substantially exposed to
asbestos and talc fibers and particles from all manufacturers whose asbestos and
talc containing products were used in the [DTR] facility during the periods they
worked there.”
{¶ 22} It is not the province of the judge to immediately foreclose the
validity of testimony such as Dr. Cohen’s. The case that appellee Chesterton cites
as the leading case regarding the “fiber drift” theory, Robertson v. Allied Signal,
Inc. (C.A.3, 1990), 914 F.2d 360
, actually recognizes the theory’s validity. While
allowing the use of the theory only with evidence of frequency and regularity,
Robertson does nonetheless accept that a worker not in close proximity to the actual
product may still inhale the product’s fibers:
“The fiber drift theory can not stand alone; it must be supported by evidence
showing the frequency of products’ use and the regularity of the plaintiff’s
employment in an area into which there is a reasonable probability that the fibers
drifted.” Id.
{¶ 23} The true worth of testimony like Dr. Cohen’s is determined in the
jury room when weighed against competing testimony. We are unwilling to close
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January Term, 1995
the door on the legitimacy of the “fiber drift” theory in every case in Ohio courts.
Indeed, the Lohrmann test is the product of the attempts of Maryland federal courts
to deal with claims brought by employees of shipyards, workplaces so large that
fiber drift might seem impossible. The Lohrmann court stressed the immensity of
the shipyard in that case as a reason for affirming the district court’s use of what
later became known as the Lohrmann test:
“[W]hen one considers the size of a workplace such as Key Highway
Shipyard, the mere proof that the plaintiff and a certain asbestos product are at the
shipyard at the same time, without more, does not prove exposure to that product.”
Lohrmann, 782 F.2d at 1162
.
{¶ 24} We think it unwise to apply a rule designed for shipyards to
workplaces of every size.
{¶ 25} More important, we think it unwise to apply a strict standard rooted
in science when the science on the issue is unresolved. Lohrmann creates an all-
knowing, trumping medical expert that disallows competing scientific viewpoints
on the causes of asbestos-related diseases.
{¶ 26} The Lohrmann test is the result of the law and public policy
outstripping the science at the heart of the asbestos problem. Sometimes when a
phenomenon grounded in science creates public concerns, policymakers cannot
wait for the science to catch up with those concerns, and a public-policy-generated
pseudoscience can be the result. The Lohrmann test creates such pseudoscience in
an arena where there is a long tradition of leaving science to the experts.
{¶ 27} Also, the Lohrmann test invites a trial judge into the domain of the
jury. The temporal aspects of the test, frequency and regularity, are subject to an
unlimited range of possibilities. How many exposures does it take to meet the
acceptable level of frequency? Can a judge be sure that one less exposure could
not have caused asbestos-related disease? What is a regular basis? Does intense
exposure over a shorter duration reduce the regularity requirement? In regard to
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SUPREME COURT OF OHIO
proximity, how close to the product is close enough? Will a few feet make the
difference?
{¶ 28} The Lohrmann test does not call for simple responses which follow
directly from a presentation of the evidence. Instead, the test involves a weighing
of the plaintiff’s evidence on the sliding scale of the test’s three loosely defined
criteria. The inquiry by the trial judge should be whether there is evidence of
exposure and evidence tying that exposure to the disease. Whether that evidence is
strong enough to prove causation is an issue for the jury.
{¶ 29} Finally, the Lohrmann test departs from our standard regarding
summary judgment. “Because summary judgment is a procedural device to
terminate litigation, it must be awarded with caution. Doubts must be resolved in
favor of the nonmoving party.” Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64, 66
,609 N.E.2d 144, 145
. Plaintiffs in asbestos cases deserve that same
degree of caution in their cases. The Lohrmann test resolves doubts about causation
mechanically in the favor of the defendant from the outset. It stacks the deck
against plaintiffs by foreclosing all but one avenue of proof of causation.
{¶ 30} For each defendant in a multidefendant asbestos case, the plaintiff
has the burden of proving exposure to the defendant’s product and that the product
was a substantial factor in causing the plaintiff’s injury. A defendant need not prove
that he was exposed to a specific product on a regular basis over some extended
period of time in close proximity to where the plaintiff actually worked in order to
prove that the product was a substantial factor in causing his injury.
{¶ 31} Instead, we adopt the definition of “substantial factor” contained in
Restatement of the Law 2d, Torts (1965), Section 431, Comment a:
“The word ‘substantial’ is used to denote the fact that the defendant’s
conduct has such an effect in producing the harm as to lead reasonable men to
regard it as a cause, using that word in a popular sense, in which there always lurks
the idea of responsibility, rather than the so-called ‘philosophical sense,’ which
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January Term, 1995
includes every one of the great number of events without which any happening
would not have occurred.”
{¶ 32} Summary judgment is proper in an asbestos case in the same
circumstances as in any other case, i.e., when, looking at the evidence as a whole,
(1) no genuine issue of material fact remains to be litigated, (2) the moving party is
entitled to judgment as a matter of law, and (3) it appears from the evidence,
construed most strongly in favor of the nonmoving party, that reasonable minds
could only conclude in favor of the moving party.
{¶ 33} Thus, we decline to establish a formulaic approach in an area which
defies that kind of analysis, and therefore do not adopt the Lohrmann test. We
therefore reverse the court of appeals and remand these cases to the trial court for a
determination consistent with this opinion.
II
{¶ 34} The theory of alternative liability originated in Summers v. Tice
(1948), 33 Cal.2d 80
,199 P.2d 1
. In Summers, the plaintiff and the two defendants went hunting together. The defendants negligently fired their guns simultaneously in the direction of the plaintiff and a pellet struck him in the eye. Since the plaintiff could not identify the responsible defendant, the court shifted the causation burden to the defendants.Id. at 86-87
,199 P.2d at 4-5
.
{¶ 35} Alternative liability had its Ohio genesis in Minnich v. Ashland Oil
Co. (1984), 15 Ohio St.3d 396
, 15 OBR 511,473 N.E.2d 1199
, syllabus, in which
this court adopted the doctrine as set forth in 2 Restatement of the Law 2d, Torts
(1965), Section 433B(3):
“Where the conduct of two or more actors is tortious, and it is proved that
harm has been caused to the plaintiff by only one of them, but there is uncertainty
as to which one caused it, the burden is upon each such actor to prove that he has
not caused the harm.”
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{¶ 36} In Minnich, the plaintiff was injured when ethyl acetate he was using
to clean a printing press ignited. The complaint alleged that two companies had
supplied ethyl acetate to Minnich’s employer; the supplier of the actual ethyl
acetate that ignited was unknown, since it had been transferred to an unmarked
bottle prior to its use by Minnich. Thus, this court applied alternative liability, since
each of the defendants had allegedly supplied an identical, defective product to the
plaintiff.
{¶ 37} This court first faced the issue of alternative liability in asbestos
cases in Goldman, supra.
This court in Goldman did not foreclose the possibility of the use of the theory in asbestos cases, but instead explained the limitations of its use therein. In Goldman, the plaintiff could not identify any of the defendants as having supplied asbestos materials to his employer. Thus, Goldman could not demonstrate that each of the defendants had acted tortiously. As this court noted, while the theory of alternative liability relaxes the traditional requirement that the plaintiff prove that a specific defendant caused the injury, it applies only where the plaintiff shows that all the defendants acted tortiously. Goldman,33 Ohio St. 3d at 46
,514 N.E.2d at 696
.
{¶ 38} The factor which makes alternative liability inappropriate in this
case was mentioned in dicta in Goldman. The present cases lack what was present
in the seminal cases in this area: defendants creating a substantially similar risk of
harm. In Summers, for example, the defendants shot guns with identical
ammunition in the direction of the plaintiff. In Minnich, both defendants allegedly
supplied the same defective chemical to the plaintiff’s employer. As this court
stated in Goldman, “[a]sbestos-containing products do not create similar risks of
harm because there are several varieties of asbestos fibers, and they are used in
various quantities, even in the same class of product.” Goldman, 33 Ohio St.3d at 46
,514 N.E.2d at 697
. The records in these cases fail to demonstrate that the level
of risk posed by each of the defendants’ products is substantially similar.
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January Term, 1995
{¶ 39} In the types of cases traditionally employing alternative liability, the
plaintiff is unable even to differentiate between the possible responsible parties. In
the within cases, the plaintiffs can at least identify which products they were
exposed to most, which contained the highest levels of asbestos, and which were
used in a manner more likely to release fibers into the air.
{¶ 40} Alternative liability is a unique theory to be employed in unique
situations. This court in Minnich limited application of the theory to “situations
similar to the one at bar.” Minnich, 15 Ohio St.3d at 397
, 15 OBR at 512,473 N.E.2d at 1200
. Alternative liability cannot apply if the defendants’ products do
not create a substantially similar risk of harm. Since there is no evidence that
defendants’ products created a substantially similar risk of harm, we will not apply
the theory in the within cases. We therefore agree with the appellate court on that
issue.
Judgments reversed and causes remanded.
MOYER, C.J., concurs in part and dissents in part.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ.., concur in part and dissent in
part.
WRIGHT and COOK, JJ., concur in part and dissent in part.
__________________
MOYER, C.J., concurring in part and dissenting in part.
{¶ 41} I concur in the first, third and fourth paragraphs of the syllabus and
in the well-advised decision of the majority to reject the theory of alternative
liability. I dissent from the majority opinion because it does not provide the bench
and bar with a test that can consistently be applied in asbestos cases. I would adopt
the “frequency-proximity” test adopted in the case of Lohrmann v. Pittsburgh
Corning Corp. (C.A.4, 1986), 782 F.2d 1156
. No persuasive argument has been
given to persuade me that Ohio should not adopt the test applied in the majority of
jurisdictions in the country that have considered the issue.
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{¶ 42} For the foregoing reasons I would affirm the judgments of the court
of appeals.
__________________
DOUGLAS, J., concurring in part and dissenting in part.
{¶ 43} I enthusiastically concur in the clear, cogent and well-reasoned
discussion of the majority concerning Lohrmann v. Pittsburgh Corning Corp.
(C.A.4, 1986), 782 F.2d 1156
, and the so-called Lohrmann test. I also concur in
paragraphs two and three of the syllabus and in the ultimate judgment of the
majority even though I must confess that I am unsure what I would do, upon
remand, if I were the trial judge. I respectfully dissent from paragraphs one and
four of the syllabus and the discussion of the majority in Part II of the opinion
concerning alternative liability.
I
{¶ 44} Whether the majority does so intentionally or unintentionally, I
believe the majority, by today’s decision, ends asbestos litigation in Ohio in
multidefendant cases. By saying, in the first paragraph of the syllabus, that a
plaintiff in such cases “has the burden of proving exposure to the defendant’s
product and that the product was a substantial factor in causing the plaintiff’s
injury” (emphasis added), the majority creates a standard that no plaintiff will ever
be able to meet. Each defendant in a multidefendant case will say that it was
another defendant’s product that caused the injury, and a plaintiff, of course, will
never be able to show that the injury was caused by, for example, the asbestos in
the ceiling tiles rather than the asbestos which was wrapped around the pipes or
heating ducts.
{¶ 45} The test for plaintiffs in asbestos cases should be no different from
what it is for other plaintiffs in other multidefendant tort cases. In asbestos cases,
the test should be that a plaintiff must show that he or she has an asbestos-related
illness, that she or he was exposed to an asbestos product of the defendant(s) and
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January Term, 1995
that exposure to asbestos was a factor in causing plaintiff’s harm. When plaintiff
proves these facts by a preponderance of the evidence, the causation burden then
shifts to defendants (who typically have better knowledge of their product
placement) to show that it was not their product that caused the harm to plaintiff.
This then leads to the theory of alternative liability.
II
{¶ 46} For its discussion of alternative liability, the majority relies
principally on Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396
, 15 OBR 511,473 N.E.2d 1199
, and dicta in Goldman v. Johns-Manville Sales Corp. (1987),33 Ohio St.3d 40
,514 N.E.2d 691
. I believe that neither case is on point and both can
be easily distinguished.
{¶ 47} It is true that in Minnich, we applied, as set forth by the majority
herein, alternative liability. The distinguishing feature of Minnich from the case at
bar is that in Minnich, it was clear that the harm had been caused by one of two
actors but it was unclear which of the actors had caused the harm. This court shifted
the burden to both actors for each to prove that, individually, it was not the
tortfeasor. In the asbestos cases, the allegation is not that a single tortfeasor caused
the injury. Rather, the allegation is that the injury was caused by exposure to
asbestos which was placed in the premises by several different actors, all of whom
are alleged to be responsible.
{¶ 48} The same is true of Goldman. In Goldman, the plaintiff could not
show that any of the defendants had provided the asbestos materials alleged to have
caused the injury. Not so in the case at bar.
{¶ 49} Rather than citing either Minnich or Goldman, I would cite this
court’s case of Huston v. Konieczny (1990), 52 Ohio St.3d 214
,556 N.E.2d 505
,
which I find to be more directly on point. In Huston, the plaintiff was involved in
a beer party at a private home, which was attended by a number of persons, most
of whom were under the legal drinking age. Plaintiff Huston left the party in a car
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with two other guests. The car was involved in an accident and plaintiff Huston
was injured. Plaintiff, along with his parents, sued a number of people, claiming
that the defendants had provided (or permitted the providing of) alcohol to minors
in violation of law and that this conduct resulted in plaintiff’s being injured.
Apparently a number of the guests at the party had brought beer with them, and a
pony keg of beer and various cans and bottles of beer were commingled in a
bathtub. One of the issues in Huston presented the question whether a plaintiff, in
a multidefendant action, is required to prove the specific source of the alcohol that
allegedly contributed to plaintiff’s injury or whether it is enough, under the
alternative liability theory, that two or more defendants committed tortious acts and
that plaintiff was injured as a proximate result of the wrongdoing of at least one of
the defendants.
{¶ 50} The trial court in Huston granted summary judgment to certain
defendants. The court of appeals reversed and we affirmed the judgment of the
court of appeals. Writing for a five-member majority of this court, Justice Herbert
Brown cited 2 Restatement of the Law 2d, Torts (1965), Section 433B(3), which
had been adopted by this court in Minnich, supra.
Justice Brown went on to say that: “Comment f to subsection (3), supra, states that the reason for the exception is the unfairness of permitting tortfeasors to escape liability simply because the nature of their conduct and of the resulting injury has made it difficult or impossible to prove which of them caused the harm. Id. at 446. The exception applies when each of two or more actors has acted tortiously and the harm has resulted from the conduct of one or more of them. 2 Restatement of the Law 2d, Torts (1965), Section 433B, Comment g.” (Emphasis added.)Huston, supra,
52 Ohio St.3d at 218
,556 N.E.2d at 510
. At 219,556 N.E.2d at 510
, Huston goes on to say that “[a]pplying
these principles to the present case, plaintiffs must show: (1) that the beer furnished
to underage persons came from the Cordells, Goodsite or the other named
defendants, and (2) that Huston was injured as a proximate result of the wrongdoing
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January Term, 1995
of at least one of these defendants.” (Emphasis added.) Finally, and most tellingly,
I believe, we said that “[t]he trial court erred when it granted summary judgment
on the basis that plaintiffs failed to prove the specific source of the beer consumed
by [the alleged driver] Bodnar.” (Emphasis added.) Id.
{¶ 51} This is precisely the issue now before us. In the case we are now
considering, allegedly all the defendants before the court supplied products of a
similar nature, some or all of which caused the injuries to these plaintiffs. Thus,
since the theory of alternative liability is the law of Ohio today, Huston, supra,
we
should either follow Huston or overrule it. Since the majority does not follow
Huston, I respectfully concur in part and dissent in part.
RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
__________________
WRIGHT, J., concurring in part and dissenting in part.
{¶ 52} I quite agree with the majority’s rejection of the theory of alternative
liability in this case and join paragraphs three and four of the syllabus. However, I
vigorously disagree with its treatment of the court of appeals’ opinion and its
rejection of the “frequency-proximity” test adopted in the leading case of Lohrmann
v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156
, which has been
embraced in practically every other jurisdiction which has reviewed asbestos
cases.1
{¶ 53} The majority and the appellants apparently accept the proposition
that “the plaintiff has the burden of proving exposure to the defendant’s product
and that the product was a substantial factor in causing plaintiff’s injury.”
1. See, e.g., Jackson v. Anchor Packing Co. (C.A.8, 1993), 994 F.2d 1295
; Tragarz v. Keene Corp. (C.A.7, 1992),980 F.2d 411
; Robertson v. Allied Signal, Inc. (C.A.3, 1990),914 F.2d 360
; Menne v. Celotex Corp. (C.A.10, 1988),861 F.2d 1453
; Blackston v. Shook & Fletcher Insulation Co. (C.A.11, 1985),764 F.2d 1480
; Spaur v. Owens-Corning Fiberglas Corp. (Iowa 1994),510 N.W.2d 854
; Sholtis v. Am. Cyanamid Co. (1989),238 N.J.Super. 8
,568 A.2d 1196
; Eckenrod v. GAF Corp. (Pa.Super. 1988),544 A.2d 50
; Lockwood v. AC & S , Inc. (1987),109 Wash.2d 235
,744 P.2d 605
.
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SUPREME COURT OF OHIO
(Paragraph one of the syllabus.) The majority goes on to state, “[W]e decline to
establish a formulaic approach in an area which defies that kind of analysis,” and
rejects Lohrmann. What the majority has done is to adopt no test whatsoever and
in the process relegate Pang v. Minch (1990), 53 Ohio St.3d 186
,559 N.E.2d 1313
, and Goldman v. Johns-Manville Sales Corp. (1987),33 Ohio St.3d 40
,514 N.E.2d 691
, to meaningless pronouncements. The majority appears to adopt what, for lack
of a better term, could be described as the “fiber drift theory,” which, in essence,
states that if there is some evidence that a defendant’s product was located in or
near or somewhere in the vicinity of the place where plaintiff worked then there is
potential liability, despite the total absence of a showing of plaintiff’s proximity to
those products or evidence as to the frequency of the exposures. I have no quarrel
with the notion that asbestos particles have the ability to “take flight” and “sail”
into the air. Appellant’s expert indicates that such particles might be released in
one corner of a plant and travel by way of drafts and air currents throughout the
immediate vicinity of a workplace. However, what is lacking here is any evidence
suggesting that any of defendant-appellees’ products were a substantial factor in
causing the appellants’ injuries. I think it goes without saying that under Ohio law,
to get past a summary judgment a plaintiff must present evidence creating a
probability, not a mere possibility, of a casual relationship between a defendant’s
conduct or product and the alleged harm. Is there sufficient evidence here to create
a jury question where the plaintiffs merely show that there was a possibility that
they may have been exposed to the defendants’ products where they worked?
Perhaps, but I suggest that the plaintiffs must present evidence that would tend to
show the circumstances of the exposure, including some idea as to the time, place,
and manner in which the product was used and where the plaintiff was in relation
to the product. The Second District Court of Appeals did just this and concluded
that there was no evidence other than speculation to support the posture of
appellants.
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January Term, 1995
{¶ 54} Civ.R. 56, which deals with summary judgment, and our various
decisions dealing with it place the trial court in the posture of a gatekeeper, whose
role is to take from the jury’s province cases which fail to achieve a certain
minimum amount of evidentiary proof. This case is surely one that fails the test.
Due to the majority’s brevity in reviewing the facts, I feel that I should excerpt a
portion of the court of appeals’ opinion which analyzes the law as it relates to the
facts. In its opinion in Horton (Nov. 23, 1993), Montgomery App. No. 13872,
unreported, at 4-5, the court of appeals correctly noted that in Lohrmann, the Fourth
Circuit required “a plaintiff to introduce evidence which would allow the jury to
reasonably conclude that the conduct of the defendant was a substantial factor in
causing the plaintiff’s harm. Id.
[Lohrmann, 782 F.2d] at 1162. That requirement
was derived from the Restatement (Second) of Torts §431, which defines what
constitutes legal cause. Lohrmann held that simply showing that asbestos-
containing products were present in a large workplace while the plaintiff worked
there is not sufficient to meet the ‘substantial factor’ test because it does not prove
that the plaintiff was exposed to the asbestos-containing products. Id. Rather, the
plaintiff must present evidence to show the frequency of the use of the product and
the regularity of the plaintiff’s employment in proximity thereto. Id.”
{¶ 55} The court of appeals properly stated, “The frequency-proximity test
*** is not a test which is distinct from the substantial factor standard; rather, it is a
tool to enable a court to determine whether the plaintiff in an asbestos case has put
forth sufficient evidence against a defendant to show that a reasonable jury could
find that the defendant’s conduct was a substantial factor in causing the plaintiff’s
harm. ***
“*** The frequency-proximity test does not require any greater showing
than the substantial factor standard; rather, the test determines when the plaintiff
has met his burden under that standard.” Id. at 6-7.
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SUPREME COURT OF OHIO
{¶ 56} As noted by the court of appeals, “The basis for this assignment of
error is an affidavit filed by the Hortons explaining the fiber drift theory as it relates
to DTR. Dr. Kenneth Cohen made the affidavit after an inspection of DTR
conducted in 1989. DTR closed a few weeks after Mr. Horton retired in 1980, so
inferably the plant was in substantially the same condition at the time of the
inspection as it was when he still worked there. Dr. Cohen is a recognized expert
in industrial hygiene. The fiber drift theory holds that asbestos fibers can become
airborne and drift away from their original source. Through repeated disturbances
by such forces as air currents or vibrations, these ‘aerodynamically active fibers
and particles’ can be transported throughout the plant. Based on this theory, Dr.
Cohen states that ‘[a]ny worker whose workplace was within the Dayton Tire and
Rubber Company plant was an asbestos and talc breather if asbestos and talc fibers
and particles were released within the confines of this facility. The plaintiff
workers who worked inside of this facility during use, installation, damage to,
repair, or removal of asbestos-containing and talc-containing products during their
employment more probably than not suffered substantial occupational exposure to
asbestos and talc fibers and particles by breathing them into their lungs ***.’
“Dr. Cohen does not confirm that any asbestos or talc fibers were ever
released in DTR. He does not name any manufacturers of any asbestos or talc
present within the plant. He refers to all workers inside of the facility, but he does
not account for the fact that there was more than one building in the DTR plant. In
oral argument, counsel for the Hortons conceded that the fibers would only drift
within the contained structures where the asbestos was located.” (Emphasis added.)
Id. at 7-8.
{¶ 57} For the foregoing reasons, I would affirm the judgment of the court
of appeals.
COOK, J., concurs in the foregoing opinion.
__________________
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January Term, 1995
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