IN THE SUPREME COURT OF OHIO

MARK SCHWARTZ, et al., : Supreme Court Case No. 2016-1372:

Appellees, : On Appeal from thev. : Cuyahoga Court of Appeals,

: Eighth Appellate DistrictHONEYWELL INTERNATIONAL, INC., :

: Court of Appeals No. CA-15-103377Appellant. :

______________________________________________________________________________

REPLY BRIEF OF AMICI CURIAE, OHIO MANUFACTURERS’ ASSOCIATION,OHIO COUNCIL OF RETAIL MERCHANTS, OHIO TIRE & AUTOMOTIVE

ASSOCIATION, OHIO ALLIANCE FOR CIVIL JUSTICE,AND THE HONORABLE WILLIAM SEITZ

______________________________________________________________________________

Richard D. Schuster (0022813)*Counsel of RecordDaniel E. Shuey (0085398)Damien C. Kitte (0084057)Vorys, Sater, Seymour and Pease LLP52 East Gay Street, P. O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-5475Facsimile: (614) 464-6350rdschuster@vorys.comdeshuey@vorys.comdckitte@vorys.com

Counsel for Amici Curiae OhioManufacturers’ Association;Ohio Council of Retail Merchants; Ohio Tire& Automotive Association; Ohio Alliance forCivil Justice; and the Honorable William Seitz

James L. Ferraro (0076089)John Martin Murphy (0066221)Anthony Gallucci (0066665)Shawn M. Acton (0072675)Kelley & Ferraro LLP2200 Key Tower127 Public SquareCleveland, Ohio 44114Counsel for Appellees,

Mark Schwartz, Individually and asExecutor of the Estate of KathleenSchwartz, deceased, et al.

Steven G. Blackmer (0072235)*Counsel of RecordMelanie M. Irwin (0086098)Willman & Silvaggio LLPOne Corporate Center5500 Corporate Drive, Suite 150Pittsburgh, PA 15237-5848Phone: (412) 366-3333Fax: (412) 366-3462

Douglas R. Simek (0075988)SUTTER O’CONNELL CO.1301 East 9th Street3600 Erieview TowerCleveland, OH 44114(216) 928-4519 phone(216) 928-4400 facsimiledsimek@sutter-law.com

Supreme Court of Ohio Clerk of Court - Filed August 07, 2017 - Case No. 2016-1372

Michael W. Weaver (PHV 2612)MCDERMOTT WILL & EMERY227 West Monroe StreetChicago, IL 60606mweaver@mwe.com

Counsel for Appellant, HoneywellInternational Inc.

James N. Kline (0007577)ULMER & BERNE LLP1660 West 2nd StreetCleveland, OH 44114-1406(216) 583-7000 phone(216) 583-7161 facsimilejkline@ulmer.com

Counsel for Amicus CuriaeOhio Association of Civil Trial Attorneys

Thomas W. Bevan (0054063)Patrick M. Walsh (0075966)Joshua P. Grunda (0084266)BEVAN & ASSOCIATES LPA, INC.6555 Dean Memorial ParkwayBoston Heights, Ohio 44236Phone: (330) 650-0088Fax: (330) 467-4493joshua.grunda@bevanlaw.com

Counsel for Amicus Curiae51 Concerned Physicians, Scientists, andScholars Regarding Causation of Asbestos-Related Disease

Victor E. Schwartz (0009240)SHOOK, HARDY & BACON L.L.P.1155 F Street, NW, Suite 200Washington, DC 20004Tel: (202) 783-8400Fax: (202)783-1211

William L. Anderson (PHV 18357)CROWELL & MORING LLC1001 Pennsylvania Avenue, NWWashington, DC 20004Tel: (202) 624-2942Fax: (202)628-5116

Counsel for Amicus CuriaeCoalition for Litigation Justice, Inc.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION .......................................................................................................................... 1

• Appellees’ position that the General Assembly intended R.C. 2307.96 to makeproving causation easier is incorrect ............................................................................ 1

• Plaintiffs may not evade the causation standard selected by the GeneralAssembly by grouping defendants together in a cumulative exposure theory ............. 2

• The cumulative exposure theory of causation leads to absurd results .......................... 2

• Allowing plaintiffs to proceed under a cumulative exposure theory will openthe door to a new asbestos litigation crisis in Ohio ...................................................... 3

ARGUMENT.................................................................................................................................. 4

A. The General Assembly’s enactment of R.C. 2307.96 rejected a laxcommon law standard of causation and imposed a more stringent test thatrequires objective evidence of exposures ............................................................... 4

• R.C. 2307.96 rejected the common law’s watered down causation standard............... 4

• Cases from other states that were decided after R.C. 2307.96 was passedcannot be used to interpret the General Assembly’s intent in passing R.C.2307.96.......................................................................................................................... 5

• This Court should look to the plain language of R.C. 2307.96 and theuncodified language in support to determine the General Assembly’s intent .............. 5

B. Appellees’ cumulative exposure theory has been rejected by other courtsand renders meaningless the substantial factor standard ........................................ 6

1. Appellees’ cumulative exposure theory is a repackaged “each andevery exposure” theory ............................................................................... 7

2. The cases cited by Honeywell and Amici regarding the flaws of thecumulative exposure theory are directly applicable here............................ 9

3. This Court should not blindly trust paid plaintiffs’ experts...................... 11

4. With proper vetting, courts have not accepted the underlyingassumptions that Appellees claim are a ”consensus” view....................... 13

5. Even if there were any scientific validity to Appellees’ broadstatements, they are irrelevant to legally proving causation ..................... 16

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C. Permitting plaintiffs to rely on a cumulative exposure theory, contrary toR.C. 2307.96, permits cases like this one to proceed based upon mereinferences .............................................................................................................. 17

• Neither expert had evidence of decedent being exposed to Bendix brakeasbestos ....................................................................................................................... 17

CONCLUSION............................................................................................................................. 19

CERTIFICATE OF SERVICE ..................................................................................................... 21

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TABLE OF AUTHORITIES

Cases

Allen v. Pennsylvania Eng. Corp., 102 F.3d 194 (5th Cir. 1996) ................................................. 13

Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004) ....................................... 10, 15

Bell v. Foster Wheeler Energy,Corp., E.D.La. No. 15-6394, 2016 U.S. Dist. LEXIS138817 (Oct. 5, 2016) ................................................................................................................. 7

Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014)...................................................... 9

Burst v. Shell Oil Co., E.D.La. No. 14-109, 2015 U.S. Dist. LEXIS 77751 (June 16,2015) ......................................................................................................................................... 12

Cabrera v. Cordis Corp., 945 F.Supp. 209 (D.Nev. 1996) .......................................................... 12

Cimino v. Raymark Industries, 151 F.3d 297 (5th Cir. 1998) ...................................................... 12

Estate of Bier v. Am. Biltrite, 8th Dist., 2012-Ohio-1195............................................................. 17

Haskins v. 3M Co., D.S.C. No. 2:15-cv-02086-DCN, 2017 U.S. Dist. LEXIS 113657(July 21, 2017) ................................................................................................................ 8, 10, 16

Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995)............................. 5

In re Garlock Sealing Technologies, LLC, 504 B.R. 71 (Bankr. W.D.N.C. 2014) .......... 14, 15, 16

In re W.R. Grace & Co., 355 B.R. 462 (Bankr. D. Del. 2006)..................................................... 16

Krik v. Crane Co., 76 F. Supp. 3d 747 (N.D. Ill. 2014)................................................................ 10

Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005) .............................................. 10

Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009) .......................................... 11

Matter of New York City Asbestos Litigation, 148 A.D.3d 233, 2017 NY Slip Op 01523,48 N.Y.S.3d 365 ................................................................................................................. 15, 16

Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950 (6th Cir. 2011) ...................................... 11

Nationwide Agribusiness Ins. Co. v. J.D. Equip., Inc., 12th Dist. No. CA2011-06-012,2012 Ohio 229 .......................................................................................................................... 17

Natl. Bank of Commerce v. Associated Milk Producers, 22 F.Supp.2d 942 (E.D.Ark.1998) ......................................................................................................................................... 13

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Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 2006 NY Slip Op 7391, 824 N.Y.S.2d 584, 857N.E.2d 1114 .............................................................................................................................. 13

Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300 (1953)....................................... 17

Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003) ............................................................. 11

Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173.............. 13

Rockman v. Union Carbide Corp., D.Md. Civil Action No. RDB-16-1169, 2017 U.S.Dist. LEXIS 110181 (July 17, 2017) ........................................................................................ 10

Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 788 S.E.2d 421 (2016) ................................. 11

Suoja v. Owens-Illinois, Inc., 211 F. Supp. 3d 1196 (W.D. Wis. 2016)......................................... 8

Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556 (E.D. La. 2015) .............. 8

Yates v. Ford Motor Co., 113 F. Supp. 3d 849 (E.D.N.C. 2015) ................................................... 9

Statutes

Ohio R.C. 2307.96 ................................................................................................................. passim

Other Authorities

American Cancer Society ”Cancer Facts & Figures 2017” ............................................................ 4

Asbestos The Future Risk, Global Mesothelioma Study 2013 ....................................................... 3

Illinois News Network “Asbestos plaintiffs seek friendly results in Madison County”(March 21, 2017) ........................................................................................................................ 4

Rand Corp., Asbestos Litigation, Nov. 25, 2005 ............................................................................ 3

Legislative Acts

H.B. 292 .................................................................................................................................. 3, 5, 6

INTRODUCTION

This appeal requires this Court to determine whether the General Assembly’s passage of

R.C. 2307.96, which requires a plaintiff to provide objective evidence that actual exposure to a

specific defendant’s product was a substantial factor in causing a plaintiff’s injury, will

have meaning or will be rendered irrelevant by the Eighth District’s embrace of the “cumulative

exposure” theory of causation. This Court should hold that R.C. 2307.96 requires actual

“quantitative” testimony of exposure to asbestos that is more than de minimis, and plaintiffs may

not rely upon an expert medical opinion that simply states that the cumulative exposure to

asbestos caused the development of an asbestos disease in order to satisfy the requirements of

R.C. 2307.96.

• Appellees’ position that the General Assembly intended R.C. 2307.96 to makeproving causation easier is incorrect.

Appellees have taken the remarkable position that the substantial factor element of

causation does not have any meaning, and they seem to argue that the General Assembly passed

R.C. 2307.96 to make the causation standard less stringent. Amici are individuals and

organizations that led and participated in the asbestos tort reform process, are familiar with the

legislative history of R.C. 2307.96, and have read the plain language of R.C. 2307.96. They can

definitively state that Appellees’ position is incorrect. The General Assembly passed asbestos

tort reform to do away with speculative and subjective “evidence” from paid experts (like many

of those signing the Appellees’ Amici brief) that lumps multiple defendants together. In other

words, R.C. 2307.96 specifically prohibits the cumulative exposure standard blessed by the

Eighth District in this case.

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• Plaintiffs may not evade the causation standard selected by the General Assemblyby grouping defendants together in a cumulative exposure theory.

The General Assembly intentionally created R.C. 2307.96 to require a plaintiff to have

substantial objective evidence of exposure, and there will be cases where a plaintiff does not

have the evidence necessary to meet that standard. This is especially true in take-home second-

hand exposure cases like the present case brought by Appellees against Honeywell. This Court

should not allow judges to overrule the General Assembly’s policy choices and permit plaintiffs

to overcome their lack of objective evidence by grouping multiple defendants together under a

cumulative exposure theory. Other courts, even those without the benefit of Ohio’s strong

statutory standard, have found that the cumulative exposure theory is fatally flawed and

insufficient to prove causation in asbestos tort cases.

• The cumulative exposure theory of causation leads to absurd results.

This case provides a strong example of the absurd results that occur when courts permit

plaintiffs to proceed under a cumulative exposure theory of causation. Appellees’ entire case is

built on the sinking sand of inferences, insufficient to meet their burden under R.C. 2307.96.

The flood of analysis presented by Honeywell and Amici reveals and washes away those

inferences, leaving Appellees with no case. When this Court peels back the inferences upon

inferences that form Appellees’ case, the Court will discover that Appellees’ experts were never

given any actual evidence of exposure to asbestos from Bendix brakes since no such evidence

was presented at trial. Even those unsupported inferences relied upon by Appellees’ experts, if

accepted, result in Bendix brakes making up only 0.1% of decedent’s known potential exposure

to asbestos in her life, which Dr. Bedrossian simply grouped together with the other 99.9% to

find that all exposures were a substantial factor in causing decedent’s mesothelioma. This

cumulative exposure theory does not satisfy Ohio law, and must be rejected by this Court.

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• Allowing plaintiffs to proceed under a cumulative exposure theory will open thedoor to a new asbestos litigation crisis in Ohio.

Adopting Appellees’ “cumulative exposure” theory will undermine R.C. 2307.96 and

open the door to a new influx of asbestos cases in Ohio. Appellees argue that this is not the case

in two misleading ways. First, Appellees argue that Ohio’s tort reform addressed the asbestos

litigation crisis only through pleading requirements that do not apply to mesothelioma cases.

This is not true. H.B. 292 was a comprehensive set of reforms designed to address the numerous

abuses that had arisen in the massive asbestos litigation in Ohio. In addition to substantial factor

causation, it addressed cases with no injury, smoking lung cancer cases, premises liability issues,

multiple disease issues, and piercing the corporate veil issues. Additionally, the General

Assembly requested the assistance of this Court to address, through rule changes, venue issues

and the joinder of multiple unrelated cases for trial. The success of these reforms can be seen in

the statistics on asbestos litigation in Ohio collected by this Court. However, asbestos reform has

been under siege in Ohio’s lower courts. Lower courts refuse to follow the plain language of the

statute and adopt novel exceptions to the requirements of H.B. 292. This case, with its adoption

of the cumulative exposure theory, is another attempt to eviscerate H.B. 292 and provide a warm

welcome to new asbestos case.1

The General Assembly’s strengthening of the causation element of an asbestos tort claim

has caused forum-shopping plaintiffs to file hundreds, if not thousands, of Ohio cases in other

1 Substantial asbestos filings in the U.S. are anticipated until at least 2050 and perhaps until 2067.Asbestos The Future Risk, Global Mesothelioma Study 2013, pp 86-92; Rand Corp., AsbestosLitigation, Nov. 25, 2005, p. 174.

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jurisdictions which lack Ohio’s strong requirements.2 If this Court judicially weakens that

causation standard, Ohio will once again be a litigation haven and the gains made will be erased.

Appellees also argue that this case will not have much impact because mesothelioma

cases are relatively rare. However, the causation element addressed in this case applies to and

will affect all asbestos cases regardless of disease type. Asbestos-tort plaintiffs have attempted

to link asbestos exposure to lung, colon, laryngeal, esophageal, ovarian, stomach, testicular,

small intestine, rectal, gallbladder, kidney, pancreas and other cancers. See

https://www.asbestos.com/cancer/. While mesothelioma may be rare, these other diseases are

not. For example, the American Cancer Society estimates that 222,500 new cases of lung cancer

will be diagnosed in the United States in 2017, with approximately 10,660 of those occurring in

Ohio. American Cancer Society “Cancer Facts & Figures 2017”, available at

https://www.cancer.org/content/dam/cancer-org/research/cancer-facts-and-statistics/annual-

cancer-facts-and-figures/2017/cancer-facts-and-figures-2017.pdf. If this Court undermines the

causation standard in R.C. 2307.96, it will have an impact on thousands upon thousands of cases.

ARGUMENT

A. The General Assembly’s enactment of R.C. 2307.96 rejected a laxcommon law standard of causation and imposed a more stringent testthat requires objective evidence of exposures.

• R.C. 2307.96 rejected the common law’s watered down causation standard.

As set forth in Amici’s primary brief, R.C. 2307.96 was intended to implement a stricter

standard that requires plaintiffs to set forth objective proof of the proximity, frequency, and

length of exposure to each specific defendant’s asbestos in order to prove causation against each

2 See, e.g., Illinois News Network “Asbestos plaintiffs seek friendly results in Madison County”(March 21, 2017) (available at https://ilnews.org/news/justice/asbestos-plaintiffs-seek-friendly-results-in-madison-county/article_e9487fa6-0e5b-11e7-917b-5311c4c43c75.html) (describingasbestos-related cases filed in Madison County, Illinois that are unrelated to that jurisdiction).

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specific defendant. This was in direct response to the watered-down common law causation test

established in Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 682, 653 N.E.2d 1196 (1995),

where this Court found that “[a] plaintiff 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 to prove that the product was a substantial factor in causing his injury.”

Id. at 686.

• Cases from other states that were decided after R.C. 2307.96 was passed cannot beused to interpret the General Assembly’s intent in passing R.C. 2307.96.

Appellees go so far as to argue that R.C. 2307.96 was intended to make it easier for a

plaintiff to prove that exposure to a certain asbestos product was a substantial factor in causing

plaintiff’s injury. To make this claim, Appellees cite to non-Ohio cases that were all decided

after Ohio’s General Assembly expressly rejected the common law in Ohio and

implemented its stricter test in 2004. See Appellees’ Br. at 24 – 28 (citing to cases from

jurisdictions such as Illinois, California, and Massachusetts that were decided between 2008 and

2016.) Even if Appellees’ characterization of those cases is correct, the cases were decided after

the General Assembly set forth its statutory causation test and could not have been relied upon

by the General Assembly when it passed R.C. 2307.96. These cases from other states were

made without the benefit of Ohio’s statute and the uncodified language in H.B. 292 explaining

its purpose and cannot be used to circumvent the clear intent of Ohio’s General Assembly.

• This Court should look to the plain language of R.C. 2307.96 and the uncodifiedlanguage in support to determine the General Assembly’s intent.

To understand the General Assembly’s intent in passing R.C. 2307.96, the Court must

look at the plain language of the statute and the uncodified language provided by the General

Assembly in support of the statute. The plain language of R.C. 2307.96 requires a plaintiff to

prove that “plaintiff’s exposure to the defendant’s asbestos was a substantial factor in

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causing plaintiff’s injury” through objective evidence of the exposure, including the manner,

proximity, frequency and length of actual exposure. R.C. 2307.96 (emphasis added). The statute

creates no exception or sliding scale based on the disease or injury alleged. More importantly,

the uncodified language makes clear that “[w]here specific evidence of frequency of exposure,

proximity and length of exposure to a particular defendant’s asbestos is lacking, summary

judgment is appropriate in tort actions involving asbestos because such a plaintiff lacks any

evidence of an essential element necessary to prevail.” H.B. 292, Section 5, 150 Ohio Laws,

Part III, 3989, § 5 (uncodified) (emphasis added). It is against this clear legislative language that

Appellees’ cumulative exposure theory must be reviewed and found wanting.

B. Appellees’ cumulative exposure theory has been rejected by othercourts and renders meaningless the substantial factor standard.

The cumulative exposure theory is inconsistent with R.C. 2307.96, as it permits a

plaintiff to group defendants together and essentially find that because a plaintiff had an

asbestos-related disease, any speculative or potential exposure to any defendant’s products is a

substantial factor in causing that disease.

In an attempt to dance around this inconsistency, Appellees’ brief is filled with

contradictions. On the one hand, Appellees vehemently deny that their cumulative exposure

theory is a re-packaged “each and every exposure” theory, but, on the other hand, they direct the

Court to an Amici brief from a group of supposed medical experts that argues in support of the

key tenets supporting the each and every exposure theory. Other plaintiffs have tried these

tactics before, and other courts have seen through this ploy.

This Court should join the chorus of other state and federal courts that have rejected the

cumulative exposure theory of causation. This Court should give no weight to Appellees’ Amici

brief as Appellees’ flawed legal theory is not actually supported by science or medicine. Even a

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brief cursory review of the signatories to Appellees’ Amici brief reveals that many of these

“unpaid” signatories serve often as paid experts for the asbestos plaintiffs’ bar and stand to make

a fortune if asbestos cases are allowed to once again proliferate in Ohio’s courts. Other courts

that have had the opportunity to actually vet the claims forwarded by Appellees’ Amici have

instead found that their generalized conclusions and opinions do not survive scrutiny.

1. Appellees’ cumulative exposure theory is a repackaged “eachand every exposure” theory.

As set forth in the primary briefs, the cumulative exposure theory is nothing more than a

repackaged “each and every exposure” theory that is incompatible with the substantial factor test

set forth in R.C. 2307.96. Appellees do not try to dispute the failures of an “each and every

exposure” theory. Instead, they argue that Dr. Bedrossian did not apply an “each and every

exposure” test because he “only took into consideration ‘exposures that are to be significant.’”

This is a distinction without a difference.

Other attempts to make this false distinction have been soundly rejected by courts. In

Bell v. Foster Wheeler Energy,Corp., E.D.La. No. 15-6394, 2016 U.S. Dist. LEXIS 138817, at

*11 (Oct. 5, 2016), the court excluded plaintiffs’ experts3 from testifying as to specific causation.

The Court noted that that “[b]y now, the deficiencies of the ‘each and every exposure’ theory of

causation in asbestos exposure cases have been extensively discussed.” Id. at *9. As in the

present case, the plaintiffs in that case tried to argue that their experts did not apply an “each and

every exposure test” because they opined “only that each and every ‘significant exposure to

asbestos caused [plaintiffs’] mesothelioma.” Id. at *10. The court rejected plaintiff’s

“skillfully cloaked” arguments, finding that there is “no material difference between the

‘every exposure’ theory and the ‘every significant exposure theory.’” Id. at *11 (emphasis

3 Including Richard Kradin, a signatory to Appellees’ Amici brief.

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added) (citing Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556, 562 (E.D.

La. 2015)). Whatever label is assigned, their experts’ opinions still “rest[ed] on little more than

the experts’ ipse dixit.” Id.; see also Suoja v. Owens-Illinois, Inc., 211 F. Supp. 3d 1196, 1207-

08 (W.D. Wis. 2016) (rejecting plaintiff’s argument that the expert testimony4 regarding

“cumulative exposure” was different than the “each and every exposure” theory).

More specifically and recently, a federal court excluded testimony from Dr. Bedrossian

on these same grounds. Haskins v. 3M Co., D.S.C. No. 2:15-cv-02086-DCN, 2017 U.S. Dist.

LEXIS 113657 (July 21, 2017). Dr. Bedrossian opined in Haskins, as he did in this case, that the

“total and cumulative exposure to asbestos, from any and all products, containing any and all

fiber types, was a significant contributing factor to [plaintiff’s] risk of premature death from

complications of his asbestos related cancer.” Id. at *2. In defending Dr. Bedrossian’s opinions,

the Haskins plaintiffs argued that Dr. Bedrossian did not rely on an “each and every exposure”

theory, because he “only considers exposures to be causative if they reach ‘non-trivial,’ ‘above

background,’ or ‘occupational’ levels.” Id. at *18.

The Haskins court quickly identified the primary flaw in such an opinion, which is

repeated in Dr. Bedrossian’s opinion in this case. “Bedrossian never defines what level of

exposure he considers significant and openly admits that he did not even need to know

[plaintiffs’] actual level of exposure to defendants’ products in order to render his

opinions.” Haskins, 2017 WL 3118017 at *18 (emphasis added).

In both Haskins and this case, the actual exposures themselves were simply not

important to Dr. Bedrossian’s cumulative exposure theory of causation, contrary to the

standard set forth in R.C. 2307.96. Dr. Bedrossian provides no indication of what makes an

4 The rejected testimony was from Arthur Frank, a signatory to Appellees’ Amici brief.

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exposure “significant” or not, or why certain exposures are considered significant but other

background exposures are not. These unexplained distinctions are especially confusing, given

that under the cumulative exposure theory, “all forms of exposure can be said to ‘contribute’ to

the total cumulative dose, and Bedrossian’s logic must necessarily include all exposures.” Id.

For these reasons, the cumulative exposure theory is inconsistent with R.C. 2307.96. It

permits a plaintiff to circumvent the objective proof of exposure required by the statute by

submitting an expert opinion that groups defendants together and blindly opines that any

potential exposure, when convenient to the plaintiff and without explanation, is a substantial

factor in causing an injury.

2. The cases cited by Honeywell and Amici regarding the flaws ofthe cumulative exposure theory are directly applicable here.

As more fully cited by Honeywell and Amici in their merit briefs, there is a large body of

case law holding that Appellees’ cumulative exposure theory is flawed and cannot be used to

prove causation in asbestos tort cases. See, e.g., Bostic v. Georgia-Pacific Corp., 439 S.W.3d

332, 354 (Tex. 2014) (noting Richard Lemen (a signatory to Appellees’ Amici brief) testified on

behalf of plaintiffs in asbestos case, where court found that causation evidence was insufficient

because plaintiffs failed to provide “quantification of the dose resulting” from exposure to a

product); Yates v. Ford Motor Co., 113 F. Supp. 3d 849–62 (E.D.N.C. 2015) (excluding expert

report and testimony of Eugene Mark (a signatory to Appellees’ Amici brief) in support of

plaintiffs opining that “there is no safe level” of asbestos exposure as it suffers from the same

flaws as the rejected “each and every exposure” theory).

The list of courts to consider and reject the cumulative exposure theory is only growing.

Just last month, a federal court in Maryland and a federal court in South Carolina excluded the

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“cumulative exposure” testimony of plaintiff’s experts.5 Rockman v. Union Carbide Corp.,

D.Md. Civil Action No. RDB-16-1169, 2017 U.S. Dist. LEXIS 110181, at *3-4 (July 17, 2017);

and Haskins, 2017 U.S. Dist. LEXIS 113657 (South Carolina decision decided July 21, 2017).

In Rockman, the plaintiff’s experts opined that plaintiff’s “cumulative exposures” to asbestos

caused plaintiff’s injuries, and explained that “the precise amount of exposure is ‘not really

relevant’ because ‘at levels above background regardless of the source or however it happened,’

all asbestos exposures cause disease.” Id. at *19-20. After listing other courts to have excluded

“each and every exposure” and “cumulative exposure” testimony, the court excluded

“cumulative exposure” testimony because it was “not the ‘product of reliable principles and

methods.’” Id. at *19-24.

Appellees argue that this body of case law does not apply here because they are from

states that apply different causation standards and/or are Daubert decisions ruling on the

admissibility of expert testimony. The cases cited by Honeywell and Amici are directly on point,

as the other jurisdictions that have rejected the cumulative exposure theory apply either a similar

substantial factor requirement or have found that the cumulative exposure theory cannot meet

even a lower causation standard.

For example, courts have found the Lohrmann test adopted in Ohio and the substantial

factor test under maritime law to be similar. Krik v. Crane Co., 76 F. Supp. 3d 747, 751 (N.D.

Ill. 2014). Courts have rejected the cumulative exposure test under that similar maritime

law standard. See Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005)

(affirming grant of summary judgment to defendant when plaintiffs relied on cumulative

exposure theory); Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004)

5 In the Maryland case, this included testimony from Arthur Frank, a signatory to Appellees’Amici brief, and in the South Carolina case, it included Appellees very own Dr. Bedrossian.

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(rejecting the opinion of plaintiffs’ experts6). In Bartel, the court explained that if the cumulative

exposure theory is “sufficient for plaintiff to meet his burden, the Sixth Circuit’s ‘substantial

factor’ test would be meaningless.” 316 F. Supp. 2d at 611 (emphasis added).

Similarly, states like Kentucky have also adopted the substantial factor test for causation

in asbestos cases. See Pathways, Inc. v. Hammons, 113 S.W.3d 85, 91 (Ky. 2003). Thus, cases

rejecting the cumulative exposure theory of causation under Kentucky law are informative

here. See Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950, 954 (6th Cir. 2011); and

Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009).

Most telling, the cumulative exposure theory has been rejected in states that do not apply

a substantial factor causation standard. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 291,

788 S.E.2d 421 (2016) (rejecting “cumulative exposure” theory despite the fact that plaintiffs

“did not have to prove that exposure to asbestos at [defendant’s] facility made a substantial

contribution to his mesothelioma….”). If the cumulative exposure theory is not sufficient to

meet a “contributing factor” test, it is insufficient to meet a “substantial factor” test.

The Daubert distinction is nonsensical. If an expert’s causation opinion is unreliable,

such flawed opinions cannot be used to prove causation. The cases excluding expert opinions

based on flaws in the cumulative exposure theory are on point and relevant to whether the

cumulative exposure theory can be used to prove substantial factor causation in Ohio.

3. This Court should not blindly trust paid plaintiffs’ experts.

This Court should have no qualms about following other courts in rejecting the

cumulative exposure causation theory. Appellees’ Amici brief is full of highly generalized

statements that have not been vetted through the legal process. This Court should be aware that

6 Including Arthur Frank, a signatory to Appellees’ Amici brief.

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the Amici signatories represent the type of biased paid witnesses that helped cause Ohio’s

asbestos litigation crisis—exactly the type of “expertise” Ohio’s tort reform expressly rejected.

Although the 51 Amici signatories may not have received any compensation for their

Amici brief in this case, even a brief review of the signatories located in the United States reveals

that many of them have served as paid experts for the plaintiffs’ bar (and most have had their

testimony rejected as unreliable or unsupported by other courts). They stand to benefit

financially from a flood of new asbestos litigation. For example:

• A Nevada court explained that Nachman Brautbar advertises as an expert for plaintiffs

and it excluded his expert opinion for plaintiff in a products liability action that injuries

were caused by a product simply “because he says so.” Cabrera v. Cordis Corp., 945

F.Supp. 209, 213 (D.Nev. 1996).

• The Fifth Circuit identified John Dement as a witness for plaintiffs in asbestos tort cases

and found his testimony to be “fatally flawed” because it was “simply based on what

[he] had been furnished by clerks or paralegals in the office of plaintiffs’ counsel.”

Cimino v. Raymark Industries, 151 F.3d 297, 320 n.48 (5th Cir. 1998).

• A Louisiana court excluded the causation testimony of Peter Infante in a benzene case

on behalf of plaintiffs because he did not follow a “reliable methodology,” he “cherry-

picks data,” he “fails to explain contrary results,” and he “does not justify his

manipulation of data.” Burst v. Shell Oil Co., E.D.La. No. 14-109, 2015 U.S. Dist.

LEXIS 77751, at *38 (June 16, 2015).

• The Fifth Circuit affirmed the exclusion of causation testimony by Karl Kelsey on behalf

of an EtO plaintiff as “the experts’ background information concerning [plaintiff’s]

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exposure to EtO is so sadly lacking as to be mere guesswork.” Allen v. Pennsylvania

Eng. Corp., 102 F.3d 194, 198 (5th Cir. 1996) (emphasis added).

• A New York court affirmed a trial court’s rejection of causation testimony by Philip

Landrigan on behalf of benzene plaintiffs because it failed to present “a scientific

expression of [Plaintiff’s] exposure level.” Parker v. Mobil Oil Corp., 7 N.Y.3d 434,

2006 NY Slip Op 7391, 824 N.Y.S.2d 584, 857 N.E.2d 1114, ¶ 8.

• An Arkansas court excluded Daniel T. Teitelbaum as an expert witness for plaintiffs in

an aflatoxin case because his testimony represented “unsupported speculation and

mere subjective beliefs.” Natl. Bank of Commerce v. Associated Milk Producers, 22

F.Supp.2d 942, 984 (E.D.Ark. 1998).7

Laxminarayana Rao should be a particularly familiar name to this Court, as the plaintiffs’ bar has

used Dr. Rao in other failed attempts to evade Ohio’s tort reform requirements. See, e.g.,

Renfrow v. Norfolk S. Ry. Co., 140 Ohio St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, ¶ 22

(finding that Dr. Rao does not meet definition of “competent medical authority” and that Dr.

Rao’s report failed to “establish that [plaintiff’s] asbestos exposure was the predominate cause of

his lung cancer”). This Court should not allow these paid “experts,” who were intentionally

sidelined by the General Assembly through tort reform, to chip away at Ohio statutes in an

attempt to gain relevance again.

4. With proper vetting, courts have not accepted the underlyingassumptions that Appellees claim are a “consensus” view.

Appellees and their Amici present broad statements to attempt to buttress Appellees’

cumulative exposure theory, claiming that they are widely accepted fact or the consensus view in

7 For many of the other signatories, it is unclear what science or medical background they have,if they have any specialized knowledge regarding asbestos, or if they have any other financialties to the asbestos plaintiffs’ bar.

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the medical/science community. These broad statements include: “all exposures to asbestos

contribute to a person’s lifetime cumulative dose”; “science has been unable to identify a ‘safe’

level of asbestos”; and “cumulative lifetime exposures . . . causes mesothelioma.”

When courts have had the opportunity to actually vet these broad statements and claims,

they have found them to be unreliable. This is especially true when it comes to the relationship

between chrysotile asbestos in brakes (like that at issue in this case) and mesothelioma. In 2014,

a federal court in North Carolina held a hearing that lasted over 17 days, included 29 witnesses,

and included hundreds of exhibits. See In re Garlock Sealing Technologies, LLC, 504 B.R. 71,

74 (Bankr. W.D.N.C. 2014). After all of this, the court made detailed findings of fact and

conclusions of law, including:

• Finding 12: “chrysotile is far less toxic than other forms of asbestos.”

• Finding 15: The “dose-response” element to mesothelioma means that “a higher and

more prolonged dose of asbestos increases the chance of developing the disease.”

• Finding 17: “chrysotile has a much lower pathogenicity” than amphibole asbestos,

meaning “a person would have to have a much greater exposure to chrysotile to

increase their risk of mesothelioma. And exposure to chrysotile from a commercial

end product such as gaskets would not be sufficient to cause mesothelioma. . . there

was no scientifically reliable connection between chrysotile exposure and

mesothelioma.”

• Finding 18: “there is a biologic rationale for the differences in toxicity of the

asbestos fiber types.”

• Finding 19: “low dose exposure to chrysotile from gaskets and packing would not

contribute to the cause of mesothelioma even over a lifetime of working with those

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products. There has been no demonstration that pure chrysotile causes asbestos

diseases and any likely contamination would only amount to a minute exposure.

• Findings 38 and 39: Finding unpersuasive various conclusions from tort plaintiffs’

experts (including Laura Welch, yet another signatory to Appellees’ Amici brief) that

“any documented occupational exposure to chrysotile – regardless of how minimal –

was sufficient to attribute it as a cause of mesothelioma” because those conclusions

were based on studies that “involve people in very high exposure settings – such as

miners or manufacturing/textile workers.” These “findings from such high-dose

occupations [were applied] to low-dose applications without an adequate basis” and

did not “consider the portion of a person’s exposure to a particular product by time or

intensity.”

Id.; see also Bartel, 316 F. Supp. 2d at 611 (noting that the plaintiff’s expert’s opinion “that

every breath [the plaintiff] took which contained asbestos could have been a substantial factor in

causing his disease, is not supported by the medical literature”).

Moreover, when experts for the plaintiffs’ bar are pressed on specifics regarding brake

products like those at issue here, they are forced to admit that “more than 99% of the debris

from brake wear is not comprised of asbestos fibers” and that “most chrysotile fibers in

brake pads undergo a transformation during the braking process” and are no longer active

asbestos fibers. See Matter of New York City Asbestos Litigation, 148 A.D.3d 233, 2017 NY

Slip Op 01523, 48 N.Y.S.3d 365, ¶ 2. Even Appellees’ expert, Dr. Guth, admitted this fact.

(T. at 2190, 2198.) They also have to admit that “21 of 22 epidemiological studies that

addressed asbestos exposure to mechanics working on friction products found no increased risk

of mesothelioma” and that “when asbestos fibers in braking equipment are mixed with certain

16

resins during manufacturing, ‘they would not be respirable.’” Matter of New York City Asbestos

Litigation, at 237–38.

In sum, Appellees’ Amici brief offers very little of relevance and in no way should

prevent this Court from rejecting the cumulative exposure theory just like other courts have

done.

5. Even if there were any scientific validity to Appellees’ broadstatements, they are irrelevant to legally proving causation.

Even assuming that there were any scientific validity to Appellees’ slanted statements,

those statements still do not affect the legal standard that this Court must apply. Despite going

through various regulatory standards and scientific theories about asbestos levels, Appellees’

own Amici acknowledge that “[i]n the end, we know this Court must apply Ohio law to reach a

decision.” See Appellees’ Amici brief, at 1.

Like Appellees’ Amici, courts have also recognized that the legal standard for causation

is very different than scientific and regulatory standards. Statements or findings by safety and

regulatory bodies cannot “be probative on the issue of causation because of the differences in the

way courts and regulatory authorities assess risk.” In re Garlock Sealing Technologies, LLC,

504 B.R. at 74 (citing In re W.R. Grace & Co., 355 B.R. 462, 468-469 (Bankr. D. Del. 2006).)

Regulatory authorities use “‘precautionary principles’ to carry out their mandates and use linear

projections into a zone of inference of theoretical risk that are not appropriate for judicial

determinations, including causation. Consequently, agency statements, policies and regulations

– and company warnings required by them – are simply not relevant to estimation of [ ] asbestos

liability.” Id.

When the Haskins court rejected Dr. Bedrossian’s cumulative exposure opinion, it

also recognized the distinction between regulatory standards and legal standards. The

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Haskins court explained that the cumulative exposure theory must be rejected because

“[r]egardless of whether this is sound science, it is inconsistent with the law.” Haskins, 2017

U.S. Dist. LEXIS 113657, at *19. The cumulative exposure theory must also be rejected here.

C. Permitting plaintiffs to rely on a cumulative exposure theory,contrary to R.C. 2307.96, permits cases like this one to proceed basedupon mere inferences.

The inherent inconsistency between R.C. 2307.96, which requires objective evidence and

quantification of exposure to a specific defendant’s product, and the cumulative exposure theory

is revealed by the absurdity of this case.

Appellees’ case is based on speculation, not evidence, and requires a fact finder to stack

inferences to hold Honeywell liable. But an inference can never arise from ‘mere guess,

speculation, or wishful thinking.’” Estate of Bier v. Am. Biltrite, 8th Dist., 2012-Ohio-1195,

¶ 22. Moreover, inference stacking cannot permit a plaintiff to survive a motion for directed

verdict. See Nationwide Agribusiness Ins. Co. v. J.D. Equip., Inc., 12th Dist. No. CA2011-06-

012, 2012 Ohio 229, ¶ 21 (citing Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300

(1953), paragraph two of the syllabus).

• Neither expert had evidence of decedent being exposed to Bendix brake asbestos.

Neither Dr. Guth nor Dr. Bedrossian looked at decedent’s actual exposure to any

asbestos from Bendix brakes. Because no such evidence existed, they built their opinions on a

series of inferences and assumptions. See, e.g., Honeywell, ¶ 37 (“After being asked to make

certain assumptions in this case, Dr. Guth offered the opinion. . . After making further

assumptions in this case, Dr. Guth opined. . .”); id. at ¶ 27 (“Dr. Bedrossian had been asked to

assume. . .”).

When this Court actually unpeels the onion of Appellees’ experts’ opinions, the revealed

layers upon layers of unsupported inferences is quite astonishing. Mr. Webber admitted that on

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some brake jobs he did not know what brand of brakes he was removing that had created the

dust. T. 1961–62, 1972. Dr. Guth admitted Mr. Webber did not grind or cut the new Bendix

brakes he installed. T. 2221 Dr. Guth admitted there were no measurements of any asbestos in

the dust that Mr. Webber wiped away when he started a brake job. T. 2225. Dr. Guth admitted

that heat from friction would have caused 99% of chrysotile asbestos to be converted to a non-

asbestos nuisance dust. T. 2195–99. Dr. Guth assumed there would be asbestos clinging to Mr.

Weber’s clothes after he did the brake job and that such asbestos would not have been brushed

off when Mr. Weber brushed dust off his clothes after a brake job.

There was no actual testimony or evidence of specific exposure by decedent to

asbestos from Bendix brakes. There is no evidence regarding a specific instance where

decedent interacted with her father or his clothing after he changed brakes. There is no

evidence regarding a specific instance where decedent washed her father’s clothes after he

changed a brake. There is no evidence regarding a specific instance where decedent ran

through the garage after her father changed brakes. Appellees’ experts had to rely on

inferences, assumptions, and hypotheticals every step of the way. Despite this, after “being

supplied with a hypothetical question regarding Kathleen’s exposure to Bendix brakes, Dr.

Guth opined that Kathleen’s significant exposures to asbestos from Bendix brakes increased her

risk of contracting mesothelioma.” See Appellees’ Br. at 9 (emphasis added).

Dr. Bedrossian’s resulting opinion on causation based on these inferences and

assumptions is facially ridiculous. To formulate his causation opinion, “Dr. Bedrossian had been

asked to assume that Webber had changed asbestos-containing brakes approximately a half

dozen times during the time Schwartz lived in the family home.” Honeywell, ¶ 27. Based on

these six assumed instances, he opined that “the cumulative exposure to asbestos was the cause

19

of [decedent’s] mesothelioma.” But Dr. Bedrossian never opined that exposure to Bendix

brakes in itself was a substantial factor in causing decedent’s mesothelioma. He simply

lumped in these six brake jobs (with no evidence of actual exposure to decedent) with the

approximate 4680 instances, at a minimum,8 where Mr. Webber brought home asbestos from

work to determine that both were substantial factors in causing decedent’s mesothelioma.

As if this result were not absurd enough, under the logic of Dr. Bedrossian’s cumulative

exposure theory, he could have found that a single brake job was a substantial factor in causing

decedent’s injury. The objective factors of exposure required by R.C. 2307.96 simply do not

matter in a cumulative exposure theory. For this reason, as demonstrated by its absurd

conclusion in this case, the cumulative exposure theory must be rejected under Ohio law.

CONCLUSION

The Eighth District’s decision below is directly contrary to the plain language of R.C.

2307.96 and the intent of the General Assembly when it enacted R.C. 2307.96. This Court

should reject the each and every exposure / cumulative exposure theory advanced by Appellees

and should instead reaffirm the obligation of Ohio courts to apply the objective factors set forth

in R.C. 2307.96 to determine if plaintiff has met her burden in proving causation. Specifically,

this Court should hold that R.C. 2307.96 requires actual “quantitative” testimony of exposure to

asbestos that is more than de minimis, and plaintiffs may not rely upon an expert medical

opinion that simply states that the cumulative exposure to asbestos caused the development of an

asbestos disease in order to satisfy the requirements of R.C. 2307.96.

8 This number, generated for comparison purposes, assumes that Mr. Webber worked five days aweek, 52 weeks a year, for the 18 years that decedent lived at home. It does not assume anyovertime days and does not assume any holidays or summer vacations decedent spent at home.

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For the reasons set forth in Honeywell’s merit brief and this reply, this Court should

reverse the judgment below and enter judgment in Honeywell’s favor as to plaintiff’s statutory

claims of defective design and inadequate warning, because the utter lack of proof of substantial

causation can lead to no other conclusion.

Respectfully submitted,

/s/Richard D. SchusterRichard D. Schuster (0022813)Daniel E. Shuey (0085398)Damien C. Kitte (0084057)Vorys, Sater, Seymour and Pease LLP52 East Gay Street, P. O. Box 1008Columbus, Ohio 43216-1008Telephone: (614) 464-5475Facsimile: (614) 464-6350rdschuster@vorys.comdeshuey@vorys.comdckitte@vorys.com

Counsel for Amici Curiae OhioManufacturers’ Association; Ohio Councilof Retail Merchants; Ohio Tire &Automotive Association; Ohio Alliance forCivil Justice; and the Honorable WilliamSeitz

21

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the Reply Brief of Amici Curiae was served by

First-Class U.S. Mail, postage pre-paid, on the noted counsel of record this 7th day of August,

2017:

James L. Ferraro (0076089)John Martin Murphy (0066221)Anthony Gallucci (0066665)Shawn M. Acton (0072675)Kelley & Ferraro LLP2200 Key Tower127 Public SquareCleveland, Ohio 44114

Attorney for Plaintiff-AppelleeMark Schwartz, Individually and asExecutor of the Estate of KathleenSchwartz, deceased, et al.

Steven G. Blackmer (0072235)(Counsel of Record)Melanie M. Irwin (0086098)Willman & Silvaggio LLPOne Corporate Center5500 Corporate Drive, Suite 150Pittsburgh, PA 15237-5848Phone: (412) 366-3333Fax: (412) 366-3462

Michael W. Weaver (PHV 2612)MCDERMOTT WILL & EMERY227 West Monroe StreetChicago, IL 60606mweaver@mwe.com

Counsel for Appellant, HoneywellInternational Inc.

Douglas R. Simek (0075988)SUTTER O’CONNELL CO.1301 East 9th Street3600 Erieview TowerCleveland, OH 44114(216) 928-4519 phone(216) 928-4400 facsimiledsimek@sutter-law.com

James N. Kline (0007577)ULMER & BERNE LLP1660 West 2nd StreetCleveland, OH 44114-1406(216) 583-7000 phone(216) 583-7161 facsimilejkline@ulmer.com

Counsel for Amicus CuriaeOhio Association of Civil Trial Attorneys

Thomas W. Bevan (0054063)Patrick M. Walsh (0075966)Joshua P. Grunda (0084266)BEVAN & ASSOCIATES LPA, INC.6555 Dean Memorial ParkwayBoston Heights, Ohio 44236Phone: (330) 650-0088Fax: (330) 467-4493joshua.grunda@bevanlaw.com

Counsel for Amicus Curiae51 Concerned Physicians, Scientists, andScholars Regarding Causation of Asbestos-Related Disease

22

Victor E. Schwartz (0009240)SHOOK, HARDY & BACON L.L.P.1155 F Street, NW, Suite 200Washington, DC 20004Tel: (202) 783-8400Fax: (202)783-1211

William L. Anderson (PHV 18357)CROWELL & MORING LLC1001 Pennsylvania Avenue, NWWashington, DC 20004Tel: (202) 624-2942Fax: (202)628-5116

Counsel for Amicus CuriaeCoalition for Litigation Justice, Inc.

/s/Richard D. SchusterRichard D. Schuster (0022813)

Counsel for Amici Curiae OhioManufacturers’ Association;Ohio Council of Retail Merchants;Ohio Tire & Automotive Association;the Ohio Alliance for Civil Justice;and the Honorable William Seitz