Is the “Cumulative-Exposure Theory” Compatible with Ohio’s Asbestos Statute (ORC 207.91) et seq.?

The Ohio Supreme Court said “NO”. 
 
The Ohio Supreme Court publicized its Opinion in Schwartz v. Honeywell Internat., Inc., Slip Opinion No. 2018-Ohio-474 on February 8, 2018. The Court concluded that the cumulative-exposure theory is inconsistent with the test for causation outlined in Ohio Revised Code §2307.96 and, therefore, is not a sufficient basis for finding a defendant’s conduct was a substantial factor in causing an asbestos-related disease. In the Schwartz case, trial court had denied a brake manufacturer defendant’s motion for directed verdict and the Eighth District Court of Appeals upheld the trial court’s ruling. Both courts had allowed the cumulative-exposure test to go to the jury. The Ohio Supreme Court reversed and entered judgment for the manufacturer defendant.
 
ORC §2307.96 incorporates a standard for evaluating the potential causal link between exposure to a product and the claimed asbestos-related injury. In applying the Ohio statute, the Ohio Supreme Court found that the cumulative exposure theory advanced by plaintiff’s expert was at odds with the requisite “individualized determination for each defendant” set forth in ORC §2307.96.  Schwartz Op. at ¶18-19. The expert provided testimony at trial that the specific defendant’s product “contributed to [plaintiff’s] cumulative exposures” stating it was “impossible to determine which particular exposure to carcinogens, if any, caused an illness.” Schwartz Op. at ¶16-17. 
 
In other words, the theory advanced by plaintiff’s expert examines defendants’ products in the aggregate, which was specifically rejected by the clear language of the statute. Schwartz Op. at ¶19, 23, 24. The Ohio Supreme Court is clearly requiring a plaintiff to prove that the conduct of a particular defendant was a substantial factor in causing the claimed injury.