Horton v. Harwick Chem. Corp.

• Decision Date: 13 September 1995
• Docket Number: 94-1041,Nos. 94-115,s. 94-115
• Citation: 73 Ohio St.3d 679,653 N.E.2d 1196
• Parties: , Prod.Liab.Rep. (CCH) P 14,399 HORTON et al., Appellants, v. HARWICK CHEMICAL CORPORATION; A.W. Chesterton et al., Appellees. DERRICK, Appellant, v. JOHN CRANE, INC., et al., Appellees.
• Court: Ohio Supreme Court

Page 679

73 Ohio St.3d 679

653 N.E.2d 1196, Prod.Liab.Rep. (CCH) P 14,399

HORTON et al., Appellants, v. HARWICK CHEMICAL CORPORATION; A.W. Chesterton et al., Appellees.

DERRICK, Appellant, v. JOHN CRANE, INC., et al., Appellees.

Nos. 94-115, 94-1041.

Supreme Court of Ohio.

Submitted Jan. 11, 1995.

Decided Sept. 13, 1995.

SYLLABUS BY THE COURT

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 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 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.

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.

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.

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.

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 judgment of the trial court in favor of appellees, Chesterton, Pittsburgh Corning, and John Crane.

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.

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.

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.

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.

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 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.

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.

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, Columbus, for appellants.

Baden & Jones Co., L.P.A., Thomas P. Erven and Nancy R. Blankenbuehler, Hamilton, for appellee A.W. Chesterton Co.

Day, Cook & Gallagher, David L. Day and Dale D. Cook, Columbus, for appellee John Crane, Inc.

Hermann, Cahn & Schneider, Gary D. Hermann, Jay H. Salamon and Romney B. Cullers, Cleveland, for appellee Pittsburgh Corning Corp.

A. Russell Smith and R. Bryan Nace, Akron, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

Charles R. Armstrong and Carolyn T. Wonders, Akron, 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, Cleveland, urging reversal for amicus curiae, Cleveland Bldg. and Const. Trades Council, AFL-CIO.

Adams Legal Services and Russell J. Adams, Granville, urging reversal for amicus curiae, Asbestos Victims of America.

Davis & Young Co., L.P.A., and Martin J. Murphy, Cleveland, urging affirmance for amicus curiae, Owens-Corning Fiberglas Corp.

Ronald G. Rossetti, Jr., Canfield, urging affirmance for amicus curiae, Ohio Ass'n of Civil Trial Attys.

Vorys, Sater, Seymour & Pease, Mary Ellen Fairfield, Richard D. Schuster and Brent C. Taggart, Columbus, urging affirmance for amici curiae, Acands, Inc., BF Goodrich Co. and the Goodyear Tire & Rubber Co.

Baker & Hostetler, Randall L. Solomon, Cleveland and John H. Burtch, Columbus, urging affirmance for amicus curiae, Center for Claims Resolution.

Bunda, Stutz & Dewitt, Robert A. Bunda, Barbara J. Stutz and Anne Y. Koester, Toledo, urging affirmance for amicus curiae, Owens-Illinois, Inc.

PFEIFER, Justice.

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.

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

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.

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...