Watkins v. Affinia Group

[Cite as Watkins v. Affinia Group, 2016-Ohio-2830.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 102538

BARBARA WATKINS, INDIVIDUALLY AND AS
EXECUTOR OF THE ESTATE OF
GLENN F. WATKINS, DECEASED
PLAINTIFF-APPELLEE

vs.

AFFINIA GROUP, ET AL.
DEFENDANTS

[Appeal By Honeywell International, Inc.]

JUDGMENT:
REVERSED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-780871

BEFORE: E.T. Gallagher, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: May 5, 2016
ATTORNEYS FOR APPELLANT

Steven G. Blackmer
Melanie M. Irwin
Willman & Silvaggio
One Corporate Center
5500 Corporate Drive
Pittsburgh, Pennsylvania 15237

Michael W. Weaver
McDermott Will & Emery, L.L.P.
227 West Monroe St.
Chicago, IL 60606

ATTORNEYS FOR APPELLEE

Christopher J. Hickey
Kevin E. McDermott
McDermott & Hickey, L.L.C.
20525 Center Ridge Road, Suite 200
Rocky River, Ohio 44116

Jerome H. Block
Donald P. Blydenburgh
Levy Konigsberg, L.L.P.
800 Third Avenue, 11th Floor
New York, New York 10022
EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Honeywell International Inc. (“Honeywell”), appeals a

judgment, rendered after a jury trial, in favor of plaintiff-appellee, Barbara Watkins,

individually and as executor of the estate of Glenn Watkins. Honeywell raises the

following four assignments of error:

1. The trial court committed reversible error by permitting plaintiff’s
causation experts to testify, over defendant’s objections in limine renewed
during trial, that (1) each or every exposure of asbestos is a substantial
contributing cause of pleural mesothelioma; (2) if a person develops
mesothelioma and there is evidence of any asbestos exposure from a
product (regardless of fiber or dose), then the disease was caused by
asbestos from the identified products; (3) plaintiff’s mesothelioma was
caused by exposure to brake dust.

2. The trial court committed reversible error when it gave the jury a
cautionary instruction during trial over defendant’s objection which,
contrary to R.C. 2307.954(B), stated that a plaintiff receives only partial
compensation from bankruptcy trust claims and that the usual rules of
evidence and proof of causation have been eased with respect to these
claims.

3. The trial court committed reversible error by permitting plaintiff’s expert
witnesses, over defendant’s in limine objection renewed at trial, to testify
concerning a publication entitled “Asbestos Exposure Causes
Mesothelioma, But Not This Asbestos Exposure: An Amicus Brief to the
Michigan Supreme Court” by Laura S. Welch, et al., Int. J. Occup. Environ.
Health 2007; 13:318-27, both because the article is hearsay for which there
is no valid exception to its exclusion and pursuant to Evid.R. 403, the article
should have been excluded because any probative value contained in the
article was substantially outweighed by one of three dangers: unfair
prejudice, confusion of the issues, or misleading the jury.

4. The trial court committed reversible error by denying defendant’s
motion for directed verdict as to plaintiff’s statutory claim for design defect,
because plaintiff failed to offer any evidence as required by R.C.
 2307.75(F) that a feasible alternative formulation existed with respect to the
asbestos utilized in the defendant’s brakes at issue.

{¶2} We find merit to the appeal and reverse the trial court’s judgment.

I. Facts and Procedural History

{¶3} The facts giving rise to this asbestos litigation are not in dispute. Glenn

Watkins (“Glenn”) was employed at Babcock & Wilcox in Barberton, Ohio from 1957 to

1958, where he was exposed to rolls of asbestos insulation and asbestos pipe covering.

Owens Corning Fiberglass sold the insulation to the Babcock facility while Glenn worked

there. The insulation, known as “Kaylo” insulation, contained amphibole asbestos fibers.

{¶4} Glenn testified that his work required him to routinely transport materials

from a warehouse to a Ford shop. The warehouse was filled with dust because other

workers were packing the asbestos-containing insulation to be used on boilers and other

products. The asbestos products included pipes and sheets of asbestos. Glenn and

Barbara Watkins sued Babcock & Wilcox as well as the manufacturers of the asbestos

containing products that were present in the warehouse.

{¶5} During the late 1950s and 1960s, Glenn used Georgia-Pacific and Gold Bond

joint compound on construction projects. He testified that he mixed the joint compound

and applied it to drywall. When the compound had dried, he sanded it, and the sanding

generated large amounts of dust. (Glenn Watkins Depo. Vol. I 34.) As part of this

lawsuit, Glenn sued the manufacturers of these joint compounds because they were

known to contain asbestos.
 {¶6} Sometime in 1950 or 1951, Glenn installed a Hollins Furnace in his home.

As part of the installation, Glenn and his father wrapped the furnace and pipes with

insulation. They also installed insulation under the floor. They cut the insulation into

pieces, and Glenn held each piece on the furnace while his father secured it to the furnace

with wire. Glenn explained: “And when you cut the insulation, you could see a lot of

fiber coming off of it and it was very dusty.” (Glenn Watkins Depo. Vol. I 31.) Glenn

further stated that he handled the insulation for 12 hours by the time the project was

completed. (Glenn Watkins Depo. Vol. I 33.)

{¶7} In 1985, Glenn began working as a manager at various Auto Shack and

AutoZone retail stores (collectively referred to as “AutoZone”). AutoZone sold a variety

of auto parts, including gaskets and “aftermarket” brakes. The brakes were produced by

several different manufacturers, including Morse, ValueCraft, Duralast, Carilac, Albany,

and Bendix. (Glenn Depo. Vol. I 42.) Glenn recommended that customers sand the

brakes before installation to avoid squeaking. Glenn estimated that he sanded

approximately 400 brake shoes and 700 to 800 brake pads for customers between 1985

and 2006. Sanding and scuffing brakes created visible dust in his work area that he

cleaned with a dry broom or vacuum cleaner. He testified that sweeping and vacuuming

the dust generated more airborne dust.

{¶8} AutoZone also sold asbestos-containing gasket intake and exhaust manifolds.

As part of his work, Glenn handled intake gaskets two to three times per day. (Glenn

Watkins Depo. Vol. I 43.) He also handled exhaust gaskets two to three times per day.
Id. All together, Glenn handled approximately 25,000 gaskets from 1985 to 2001.

These gaskets were manufactured by Fel-Pro, McCord, and Victor. (Glenn Watkins

Depo. Vol. I 44.)

{¶9} In addition to his work at AutoZone, Glenn testified that he performed brake

jobs on his vehicles. After removing the old brakes, Glenn cleaned dirt and dust from

the vehicle and sanded the new brakes before installing them. Glenn testified that most

of the dust and dirt came from the brake shoes. (Glenn Watkins Depo. Vol. I 45.)

Glenn changed brakes on numerous cars over the course of several decades, but installed

mostly Duralast brakes. He stated: “Once you start using Duralast, that’s all I used.”

(Glenn Watkins Depo. Vol. I 50.) The Bendix brakes at issue in this case were thought

to contain chrysotile asbestos fibers as opposed to the amphibole asbestos contained in

some of the other products.

{¶10} Glenn began rebuilding engines in 1951 and continued until 2000. As part

of this process, Glenn removed and installed new engine and exhaust gaskets. He

testified that whenever he removed a new gasket from the box, “there was always fiber

and dust coming out and it would get airborne.” (Glenn Watkins Depo. Vol. I 53.)

{¶11} In January 2012, Glenn Watkins was diagnosed with pleural mesothelioma,

which is a cancer of the protective lining of the lungs. Glenn and Barbara Watkins

(“Watkins”) filed a complaint against Honeywell, as successor-in-interest to the Bendix

Corporation, as well as several other manufacturers of asbestos-containing products.

They alleged that Glenn developed mesothelioma as a result of exposure to the
defendants’ asbestos-containing products. As relevant to this appeal, Watkins alleged

that Glenn was exposed to chrysotile asbestos in the brakes manufactured by Bendix, and

that this exposure was a substantial cause of his disease. Glenn died shortly after the

complaint was filed.

{¶12} All the defendants except Honeywell settled, or were otherwise dismissed,

before trial. The issue at trial was whether Glenn’s handling of Bendix brakes was a

cause-in-fact of Glenn’s mesothelioma and, if so, by how much. Watkins’s two

causation experts, Drs. James A. Strauchen (“Dr. Strauchen”) and Arthur L. Frank (“Dr.

Frank”) shared the opinion that Glenn’s exposure to Bendix brakes was a substantial

cause of his mesothelioma.

{¶13} Prior to trial, Honeywell moved in limine to exclude Drs. Frank and

Strauchen from testifying or, in the alternative, requested a Daubert hearing to examine

the reliability of their opinions. Honeywell argued the experts’ opinions were not based

on reliable science because their “every exposure” and “cumulative dose” theories are not

based on scientifically defensible principles and methodologies.

{¶14} Honeywell also sought to exclude from the evidence, an amicus brief that

was later published in a medical journal titled, “Asbestos Exposure Causes

Mesothelioma, But Not This Asbestos Exposure: An Amicus Brief to the Michigan

Supreme Court” (the “Welch article”). Honeywell argued the Welch article is hearsay

for which there is no valid exception. It also argued the article was misleading to the
jury, and that its probative value was substantially outweighed by the danger of unfair

prejudice and confusion of the issues.

{¶15} The trial court denied both motions in limine without a Daubert hearing.

Watkins’s experts testified that Glenn’s exposure to chrysotile asbestos in Bendix brakes

was a substantial contributing cause of his mesothelioma.

{¶16} At the conclusion of Watkins’s case-in-chief, and again at the conclusion of

the evidence, Honeywell moved for a directed verdict, arguing that Watkins’s experts

failed to prove Glenn’s handling and sanding of Bendix brakes exposed him to sufficient

levels of chrysotile asbestos to cause his disease. The trial court denied the motion,

along with a few others not relevant to our decision here, and the case was submitted to

the jury.

{¶17} After nearly two days of deliberations, the jury returned a verdict in favor of

Watkins. The jury apportioned fault to each of the named defendants and found that

Honeywell was 40% responsible for Watkins’s mesothelioma. Honeywell now appeals

the trial court’s judgment.

II. Law and Analysis

A. Causation Expert Testimony

{¶18} We find the first assignment of error dispositive of this appeal. In this

assigned error, Honeywell argues the trial court erred by permitting Watkins’s causation

experts to testify, over objection, that Glenn’s mesothelioma was caused by exposure to
Bendix brake dust. Honeywell contends the experts’ testimony did not comply with

either Evid.R. 702 or the Daubert standard for the admissibility of expert evidence.

1. The Daubert Standard

{¶19} The admissibility of expert testimony in Ohio is governed by Evid.R. 702

and 703, and the United States Supreme Court decision in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its

progeny. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998) (Ohio

has adopted the Daubert test for determining the reliability of an expert’s opinion.).

{¶20} Evid.R. 702 permits a witness to testify as an expert only if his opinion or

testimony will aid the trier of fact in the search for truth. State v. Clark, 101 Ohio

App.3d 389, 655 N.E.2d 795 (8th Dist.1995). An expert’s testimony assists the trier of

fact if it meets a threshold standard of reliability. Daubert at 589-590. See also 1994

Staff Notes to Evid.R. 702. Thus, the trial court should not accept the expert’s opinion at

face value; it must independently examine and evaluate the reliability of each expert’s

opinion. Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208, ¶

27.

{¶21} Daubert provides the analytical framework for determining whether expert

testimony is sufficiently reliable to be admissible under Evid.R. 702. Under Daubert,

experts may only testify if their testimony is (1) based upon sufficient facts or data, (2) the

testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case. Daubert at 592-593;

Evid.R. 702.

{¶22} In Daubert, the court enumerated several non-exhaustive factors courts must

consider when determining whether scientific evidence is reliable. Id. at 593-594.

These factors include (1) whether the theory or technique has been tested, (2) whether it

has been subjected to peer review, (3) whether there is a known or potential rate of error,

and (4) whether the methodology has gained general acceptance. Id. at 593-594. These

factors are intended to assist the trial court in its duty to ensure that expert testimony is

based on the scientific method. Id. at 590. The Daubert court explained that “in order

to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the

scientific method.” Id.

{¶23} In defining the scientific method, the Daubert court stated that “[s]cientific

methodology today is based on generating hypotheses and testing them to see if they can

be falsified; indeed, this methodology is what distinguishes science from other fields of

human inquiry.” Id. at 593. Thus, the focus of the Daubert inquiry is “solely on

principles and methodology, not on the conclusions that they generate.” Daubert at 595.

See also Bike Athletic Co., 80 Ohio St.3d 607 at 611, 687 N.E.2d 735.

{¶24} In the remanded Ninth Circuit Daubert opinion, the court recognized that as

evidentiary gatekeepers, trial courts must now “analyze not what the experts say, but what

basis they had for saying it.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d
1311, 1316 (9th Cir.1995). This examination “will require some objective, independent

validation of the expert’s methodology.” Id.

{¶25} The proponent of the expert bears the burden of demonstrating that the

expert’s testimony satisfies the Daubert standard by a preponderance of the evidence.

Walker, 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208 at ¶ 25.

2. Daubert Analysis

{¶26} Drs. Frank and Strauchen opined that Watkins’s handling and sanding of

Bendix brakes was a substantial cause of his mesothelioma. Despite Watkins’s

statements to the contrary, their opinions were premised on the notion that every exposure

to asbestos is a substantial contributing cause to the development of mesothelioma. They

asserted that because asbestos disease is a cumulative, dose-response process, every

exposure the person experiences during his lifetime substantially contributes to the

disease.

{¶27} To properly evaluate the admissibility of these opinions, some

understanding of toxicology, as it relates to the law of torts, is necessary. “All

substances are poisonous — there is none which is not; the dose differentiates a poison

from a remedy.” David L. Eaton, Scientific Judgment and Toxic Torts — A Primer in

Toxicology for Judges and Lawyers, 12 Journal of Law & Policy 11 (2003). Alcohol,

aspirin, sunlight, vitamins, and minerals are not harmful, and may be beneficial at low

levels, but can cause harm in higher doses. Again, it is “the dose that makes the poison.”
 Bernard D. Goldstein & Mary Sue Henifin, Reference Guide on Toxicology, Reference

Manual on Scientific Evidence 401, 403 (West Group 2d Ed.2000).

{¶28} The threshold at which a substance becomes poisonous is not always easy to

identify, but that does not mean it does not exist. Unless the plaintiff is exposed to a

toxic level of a substance, the substance will not cause the plaintiff any harm. Id. To

prove causation in toxic tort cases, courts generally require the plaintiff to demonstrate

more than just some exposure; he must produce evidence from which the trier of fact can

conclude that the plaintiff was exposed to sufficient levels of toxins to cause the

plaintiff’s injury. Wintz v. Northrop Corp., 110 F.3d 508, 513 (7th Cir.1997), citing

Reference Manual on Scientific Evidence (1994); see also Wright v. Willamette Indus.,

Inc., 91 F.3d 1105, 1107 (8th Cir.1996); McClain v. Metabolife Intl., Inc., 401 F.3d 1233,

1241 (11th Cir.2005); Allen v. Pennsylvania Eng. Corp., 102 F.3d 194, 199 (5th

Cir.1996) (“[S]cientific knowledge of the harmful level of exposure to a chemical, plus

knowledge that plaintiff was exposed to such quantities, are minimal facts necessary to

sustain the plaintiff’s burden.”). See also Terry v. Caputo, 115 Ohio St.3d 351,

2007-Ohio-5023, 875 N.E.2d 72, paragraph one of the syllabus.

{¶29} As previously stated, Evid.R. 702 and Daubert hold that an expert’s opinion

must be based on sufficient facts and data in order to aid the jury in its search for truth.

Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Drs. Frank’s and Strauchen’s

theories are supported by certain general conclusions that are not in dispute. These

conclusions are that (1) both amphibole and chrysotile asbestos fibers are carcinogenic,
(2) amphibole asbestos is a more potent carcinogen than chrysotile asbestos, (3) almost all

mesothelioma cancers are caused by asbestos exposure, (4) prolonged exposures to large

doses of asbestos increase the likelihood of cancer, and (5) there is no known minimum

dose of asbestos that is required to cause cancer in a human being.

{¶30} These factors tend to prove general causation, which is a methodology used

to determine whether or not exposure to a substance or agent is capable of producing an

adverse health effect in humans. Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023,

875 N.E.2d 72, ¶ 13. Specific causation is a methodology used to determine whether or

not exposure to a particular substance did, in fact, cause the plaintiff’s specific disease.

Id. at ¶ 15. “Specific causation separates the speculative from the probable.”

Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex.2007).

{¶31} Borg-Warner involved a retired brake mechanic who developed asbestosis

after working in the automotive department of a Sears store for 35 years. Id. at 766.

The plaintiff regularly sanded brakes to avoid “brake squealing” after installation, and the

grinding process produced visible dust. The brakes contained between 27 and 28 percent

asbestos. The Texas Supreme Court held that the plaintiff failed to establish a causal

connection between the plaintiff’s disease and the brake dust beyond mere speculation.

The court reasoned:

[W]hile some respirable fibers may be released upon grinding some brake
pads, the sparse record here contains no evidence of the approximate
quantum of Borg-Warner fibers to which Flores was exposed, and whether
this sufficiently contributed to the aggregate dose of asbestos Flores
inhaled, such that it could be considered a substantial factor in causing his
asbestosis.
Id.

“It is not adequate to simply establish that ‘some’ exposure occurred.
Because most chemically induced adverse health effects clearly demonstrate
‘thresholds,’ there must be reasonable evidence that the exposure was of
sufficient magnitude to exceed the threshold before a likelihood of
‘causation’ can be inferred.”

Id., quoting David L. Eaton, Scientific Judgment in Toxic Torts — A Primer in Toxicology

for Judges and Lawyers, 12 Journal of Law & Policy at 39.

{¶32} We note that the Borg-Warner court further held that a causation expert

need not identify a particular dose with mathematical precision. Id. at 772-773.

“Defendant-specific evidence relating to the approximate dose to which the plaintiff was

exposed, coupled with evidence that the dose was a substantial factor in causing the

asbestos-related disease, will suffice.” Id. The Fourth Circuit has also held that

plaintiffs are not required to identify a specific dose. Lohrmann v. Pittsburgh Corning

Corp., 782 F.2d 1156, 1162 (4th Cir.1986). In what has become known as the Lohrmann

test, the court held that substantial causation may be inferred from circumstantial

evidence of “(1) exposure to a specific product (2) on a regular basis (3) over some

extended period of time (4) in close proximity to where the plaintiff actually worked.”

Id.

{¶33} Drs. Frank and Stauchen asserted that asbestos is the only proven cause of

mesothelioma and that every exposure to asbestos increases an individual’s risk of

developing an asbestos-related disease. However, the trial court did not hold a Daubert

hearing, and thus could not independently determine whether Drs. Frank’s and
Strauchen’s causation theories were supported by sufficient data or based on reliable

principles and methods.

{¶34} The record contains some epidemiological studies, but there is no evidence

about how these studies were conducted. Were there any biases in the selection of

studied subjects? Were there any systematic errors in measuring data that resulted in

differential accuracy of information? Who funded the studies? There are numerous

questions the court could ask the experts regarding the reliability of these studies. The

court must consider biases when interpreting an epidemiological study. Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 719 (Tex.1997) (“[B]ias can dramatically

affect the scientific reliability of an epidemiological study.”).

{¶35} Dr. Frank also based his opinion, in part, on the “Helsinki Criteria,” which

was a report created by a group of 19 interdisciplinary scientists to establish criteria for

attributing lung cancer and mesothelioma to asbestos exposure. See Asbestos,

Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, 23

Scandinavian Journal of Work Environmental Health, 311, 312-314 (1997).

{¶36} As for mesothelioma, the Helsinki Criteria states that

[a] lung fiber count exceeding the background range for the laboratory in
question or the presence of radiographic or pathological evidence of
asbestos-related tissue injury (e.g., asbestosis or pleural plaques) or
histopathologic evidence of abnormal asbestos content (e.g. asbestos bodies
in histologic sections of lung) should be sufficient to relate a case of pleural
mesothelioma to asbestos exposure on a probability basis. In the absence
of such markers, a history of significant occupational, domestic, or
environmental exposure to asbestos will suffice for attribution.

Id. at 313.
 {¶37} However, courts have criticized the validity of the Helsinki Criteria on

grounds that the criteria are “concerned only with whether mesothelioma can be attributed

to asbestos as a general matter.” Yates v. Ford Motor Co., 113 F.Supp.3d 841, 862

(E.D.N.C.2015). The Yates court observed that “[t]he Helsinki Criteria does not

articulate principles for distinguishing which particular ‘occupational, domestic or

environmental exposure[s] to asbestos’ caused the disease.” Id., quoting Butler v. Union

Carbide Corp., 310 Ga. App. 21, 27, 712 S.E.2d 537 (2011).

{¶38} Moreover, “[t]o the extent the Helsinki Criteria does not require an expert to

establish the levels at which the particular fiber type of asbestos presents a risk, the

criteria cannot substitute for the well-established and legally recognized methods of

determining when a substance is hazardous.” Id. Therefore, in the absence of a hearing,

the trial court did not have sufficient evidence upon which to analyze the basis for

Watkins’ experts’ opinion.

{¶39} The trial court did not properly execute its duty as gatekeeper because,

without a hearing, the court could not independently examine and evaluate the reliability

of Drs. Frank’s and Stauchen’s expert testimony. Therefore, their testimony was

admitted in error.

{¶40} The first assignment of error is sustained.

{¶41} Judgment reversed.

It is ordered that appellant recover from appellee the costs herein

taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR