National Compendium of Causation Standards in Asbestos Litigation

Updated: 2017
Edward M. Slaughter, Quincy Jones, Celina Walker


 

Asbestos litigation continues unabated in jurisdictions across the country. Exposure scenarios that rarely gave rise to lawsuits just a few years ago are now the norm. Bystander, take-home and environmental drift cases are filed with regularity. The rise of these de minimis dose cases makes the proper application of causation criteria all the more important. Causation standards should be based on legitimate science and sound legal principles. This is our 2017 Update: Compendium of Asbestos Causation Standards.

The following is compendium of reported decisions from across the country. We publish this with the hope that others from across the country will share any orders or other news on how their local trial courts have actually applied these standards in asbestos cases. Click here to contact Edward M. Slaughter with updates.


Lohrmann Test

California Standard

Texas Standard

Miscellaneous Approaches

Arizona
Arkansas
Colorado
District of Columbia
Georgia
Illinois
Iowa
Kansas
Kentucky
Louisiana
Maryland
Massachusetts
Michigan
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
North Carolina
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Utah
Washington
Wyoming

California
Oregon
























Texas


























Delaware
Maine
New York
Virginia

























Alabama

Relevant cases: Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443 (Ala. 1992) (maritime case admitting any exposure expert testimony); Bobo v. Tennessee Valley Authority, 2014 WL 4269128 (denying defendant’s motion to exclude any exposure testimony); Morgan v. Bill Vann Co., 2013 WL 4654602 (court did not have to recognize causation standard under Alabama law because of a statutory bar); Bobo v. Tennessee Valley Auth., 855 F.3d 1294 (11th Cir. 2017) (applying Alabama law but declining to adopt either the Lohrmann or substantial factor test because the sufficiency of the evidence satisfied both standards where decedent’s wife laundered his asbestos containing clothes for 22 years).

Standard adopted by highest state court? No           

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Arizona

Relevant cases: Hyde v. Owens-Corning Fiberglas Corp., 751 F. Supp. 832 (D. Ariz. 1990); White v. Celotex Corp., 907 F.2d 104 (9th Cir. 1990). See Benshoof v. National Gypsum Co., 978 F.2d 475 (9th Cir. 1991).

Standard adopted by highest state court? No

Standard used in Hyde & White: In White, the Ninth Circuit affirmed that plaintiff offered no evidence of exposure to any particular product associated with the defendant and defendants merely making asbestos products during the period of alleged exposure was insufficient. 907 F.2d at 106. Hyde expanded on the White decision, granting summary judgment to defendant after plaintiff failed to produce any evidence regarding time, location, and circumstances of their exposure to the defendant’s asbestos product. 751 F. Supp. at 834. The facts consisted of plaintiff who alleged exposure during his thirty years working as a construction carpenter. Id. at 833. Plaintiff’s testimony merely provided that he had seen Kaylo pipe covering, but failed to establish that the pipe covering belonged to defendants. Id. Benshoof is significant because it is often interpreted as a more rigorous standard than the traditional Lohrmann test because of the scrutiny placed on circumstantial evidence under Arizona law.

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Arkansas

Relevant case: Chavers v. Gen. Motors Corp., 79 S.W.3d 361 (Ark. 2002); see also Jackson v. Anchor Packing Co., 994 F.2d 1295 (8th Cir. 1993) (predicting Arkansas would adopt Lohrmann test and applying it).

Standard adopted by highest state court? Yes                       

Standard: Lohrmann

In Chavers, a wrongful death action was brought against 3 manufacturers of asbestos products. 79 S.W.3d at 362. The plaintiff claimed the decedent’s exposure was attributable to working most of his life in construction, as well as working on automobiles as a “shade tree mechanic.” Id. at 364. The Arkansas Supreme Court adopted the Lohrmann test and rejected plaintiff’s argument to adopt the more relaxed test demonstrated in Tragarz.Id. at 369. The court concluded that even if under the more relaxed standard, plaintiff failed to meet the regularity and frequency requirements. Id. at 370. The plaintiff only offered evidence of exposure on one occurrence when removing a set of brakes manufactured by one of the defendants. Id. There is a presumption that Arkansas would reject the any exposure theory since the court determined that the plaintiff’s evidence of one-time exposure to the defendant’s product could not show that it was probable to have caused illness. Id.

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California

Relevant cases: Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997); Sclafani v. Air & Liquid Sys. Corp., 14 F. Supp. 3d 1351 (C.D. Cal. 2014); Davis v. Honeywell Int’l, Inc., 199 Cal. Rptr. 3d 583 (Ct. App. 2016).

Standard adopted by highest state court? Yes

Standard: Exposure to Risk Test

The action in Rutherford involved a decedent who worked as a sheet metal worker and engineering technician for forty years. 941 P.2d at 1207. The Under California law, plaintiffs can prove causation by demonstrating (1) exposure to a defendant’s asbestos-containing product with reasonable medical probability exposure and (2) exposure was a substantial factor in increasing the risk of the asbestos-related injury.  Id. at 1219. Plaintiff does not have to demonstrate that fibers from a defendant's product were the ones that actually caused the asbestos-related disease.  Id. Contribution of the defendant’s product to the asbestos-related injury must be more than negligible or theoretical.  Id. at 1220. Although the trial court erroneously provided burden-shifting jury instructions that led to a verdict in favor of plaintiff, the court found the instruction was not prejudicial. Id. at 1225. In Sclafani, the court rejected the any exposure theory, finding it only offered speculative evidence of frequency, regularity, and proximity of the plaintiff’s exposure. 14 F. Supp. 3d at 1359.  But in Davis, the court highlighted its disagreement with jurisdictions that reject the “every” exposure theory. Davis, 199 Cal. Rptr. 3d at 597. It opined that it is not illogical to determine from expert testimony that each exposure is a substantial factor in contributing to asbestos related diseases and that this view complies with the Supreme Court’s ruling in Rutherford. Id.

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Colorado

Relevant cases: Merkley v. Pittsburgh Corning Corp., 910 P.2d 58 (Colo. App. 1995).

Standard adopted by highest state court? Not specifically for asbestos   

Standard:In Merkley, plaintiff commenced action against seventeen asbestos manufacturers after working as an industrial insulator for thirty-seven years. 910 P.2d at 59. The issue was whether the plaintiff had created a genuine issue of material fact by establishing that the defendant’s particular product was a substantial contributing cause of his injury. Id. Summary judgment was affirmed after the court found that plaintiff’s testimony failed to establish exposure during the relevant time period or the fact that defendant’s product caused his illness. Id. at 61. Plaintiff did not identify whether he saw defendant’s product or the extent of his exposure. Id. at 60. The court’s substantial factor test derived from the Colorado Supreme Court’s adoption of the standard in a non-asbestos decision. See Rupert v. Clayton Brokerage Co., 737 P.2d 1106 (Colo. 1987).

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Connecticut

Relevant cases: Deshone v. ABB, Inc., 2004 Conn. Super. LEXIS 2579; Garreffi v. AC&S, Inc., 2004 Conn. Super. LEXIS 2607; Healey v. ACMAT Corp., 2004 Conn. Super. LEXIS 2527; Laposka v. ABB, Inc., 2004 Conn. Super. LEXIS 2614; Routhaupt v. AC&S, Inc., 2004 Conn. Super. LEXIS 2576.

Standard adopted by highest state court? No                       

Standard:No standard has been established in Connecticut, but a line of superior court decisions use the general standard that a plaintiff must: (1) identify an asbestos-containing product for which a defendant is responsible; (2) prove he has suffered damages; and (3) prove defendant’s asbestos-containing product was a substantial factor in causing his damages. 2004 Conn. Super. LEXIS 2579 at *2. All of these decisions held that the any exposure theory testimony would be accepted by a reasonable jury. 2004 Conn. Super. LEXIS 2527 at *3; 2004 Conn. Super. LEXIS 2607 at *3; 2004 Conn. Super. LEXIS 2579 at *3; 2004 Conn. Super. LEXIS 2614 at *3; 2004 Conn. Super. LEXIS 2576 at *3.

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Delaware

Relevant cases: Walkup v. Air & Liquid Sys. Corp., 2014 U.S. Dist. LEXIS 75892; In re Asbestos Litigation, 2011 WL 2462569; Money v. Manville Corp. Asbestos Disease Compen. Trust Fund, 596 A.2d 1372 (Del. 1991).

Standard adopted by highest state court? Yes

Standard:  In Money, workers brought suit against former employer-manufacturer alleging asbestos exposure from products used during the course of their employment. Id. at 1374. In the appeal of a directed verdict for the manufacturer, the Delaware Supreme Court held that a plaintiff establishes a prima facie case of proximate cause by introducing direct competent expert medical testimony that a defendant’s asbestos product was a proximate cause of the plaintiff’s injury. Id. at 1377. The plaintiff’s medical expert must state, in terms of reasonable medical probability, that there was a causal relationship between the defendant’s product and plaintiff’s actual injury, and but for the exposure the injury would not have occurred. Id. The trial court’s judgment was affirmed because plaintiff’s expert witness failed to establish a causal nexus between manufacturer’s product and each plaintiff’s asbestos-related disease. Id.

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District of Columbia

Relevant cases: Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374 (D.C. 1995); see Alliegro v. ACandS, Inc., 691 A.2d 102 (D.C. 1997); Weakley v. Burnham Corp., 871 A.2d 1167 (D.C. 2005).

Standard adopted by highest court? Yes                               

Standard: In Claytor, the D.C. Court of Appeals affirmed summary judgment against two of the plaintiffs after they only provided general terms regarding their presence near defendant’s products. 662 A.2d at 1377-78. The court found the third plaintiff, an electrician, raised a genuine issue of material fact. Id. at 1387. This was accomplished through testimony that the plaintiff worked closely with steamfitters who were installing asbestos. Id. The plaintiff also remembered seeing the defendant’s product in the workspace. Id. The court applied the Restatement (Second) of Torts §431, providing that an actor’s negligent conduct is a legal cause of harm to another if (1) his conduct is a substantial factor in bringing about the harm and (2) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.Id. at 1381-82. The court held adopting the Lohrmann test was unnecessary, finding that the court’s established standard derived from the same source and Lohrmann is simply an elaboration of the standard.Id. at 1382. It was ruled that requiring plaintiff’s to present direct evidence of their exposure to asbestos products, including testimony to verify the plaintiff’s presence, was unreasonable. Id. at 1384. In support of this reasoning, the court established the minimum requirement—which is proof that a plaintiff and a defendant’s products were in the same place at the same time. Id. at 1384-85. In Alliegro, plaintiff presented expert evidence advocating that every exposure substantially contributed to the plaintiff’s disease. 691 A.2d at 104. Defendants were granted summary judgment after the trial court found that although plaintiff showed sufficient exposure to asbestos, they failed to show sufficient exposure to the defendant’s particular products. Id. at 105. On appeal, plaintiff argued the trial court erroneously applied the Lohrmann test, citing Claytor. Id. The appellate court reversed, holding that the testimony offered by the plaintiff, which included the any exposure theory, could lead a jury to infer that the plaintiff had been in the same place at the same time as defendant’s products. Id. at 106. Weakley applied the same standard and also reversed a summary judgment ruling in favor of defendants. 871 A.2d at 1181. The court arguably broadened the standard by ruling that “a plaintiff who provides information under oath that he has had contact sufficient to do him harm with a defendant’s product should not be expected to provide detailed information . . . to avoid the entry of summary judgment.” Id

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Florida

Relevant case: American Optical Corp. v. Spiewak, 73 So.3d 120 (Fla. 2011).

Standard adopted by highest state court? No                       

Standard: In Spiewak, the Florida statute governing asbestos litigation was found to be unconstitutional under Florida law and that any valid provisions could not be severed from the Act. 73 So.3d at 133. The statute provided that exposure must be a substantial contributing factor in order to bring a successful claim. F.S.A. § 774.204. Subsequent federal cases have still recognized the substantial factor test for causation under Florida law. See Dugas v. 3M Co., 3:14-CV-1096-J-39JBT, 2016 WL 7246096, at *3 (M.D. Fla. Jan. 11, 2016); Waite v. AII Acq. Corp., 194 F. Supp. 3d 1298, 1317 (S.D. Fla. 2016).


Georgia

Relevant cases: Butler v. Union Carbide Corp., 712 S.E.2d 537 (Ga. Ct. App. 2011); Scapa Dryer Fabrics, Inc. v. Knight, 788 S.E.2d 421 (Ga. 2016).

Standard adopted by highest state court? Statute

Standard: Lohrmann

Standard adopted through statute. Ga. Code Ann. § 51-14-3(23) states: “Substantial contributing factor means that exposure to asbestos or silica took place on a regular basis over an extended period of time and in close proximity to the exposed person and was a factor without which the physical impairment in question would not have occurred.” The court in Butler affirmed the trial court’s determination to reject plaintiff’s any exposure expert testimony. Id. at 540-45. The plaintiff failed to deliver any opinion demonstrating that a specific defendant’s product caused the plaintiff’s mesothelioma or that they were in proximity to the defendant’s product at the time it was being used. Id. at 539. Fouch v. Bicknell Supply Co.is a non-asbestos case that could impact future asbestos litigation after concluding that Butler did not require a plaintiff to establish a specific amount of exposure to prove causation. 756 S.E.2d 682, 688 (Ga. Ct. App. 2014). However, in Scapa, the plaintiff worked as an independent contractor multiple times at defendant’s textile plant, where he claimed to have contracted asbestos. 88 S.E.2d 421, 423 (Ga. 2016). The Supreme Court rejected the plaintiff expert’s “cumulative exposure” theory because the expert did not base it on reliable data and ruled that a de minimus contribution is not enough to establish Lohrmann standard causation under Georgia law. Id. at 425-26. Plaintiffs must prove that exposure to asbestos made a meaningful contribution to their claimed injury, either through qualitative or quantitative estimates. Id. at 426-27 (Emphasis in original). The court suggested it might have accepted the theory if the expert based it on reliable data sufficient to show the exposure was more than de minimus. Id.

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Hawaii

Relevant cases: Cabasug v. Crane Co., 989 F. Supp. 2d 1027 (D. Haw. 2013).

Standard adopted by highest state court? No                       

Standard: In Cabasug, a maritime case involving twenty-five defendants, the court considered the various substantial factor tests to determine which standard to apply. 989 F. Supp. 2d at 1033. The court adopted the standard from Lindstrom, which held a plaintiff must create a genuine issue of material fact by establishing (1) they were exposed to defendant’s product and (2) the product was a substantial factor in causing plaintiff’s injury. Id. at 1037. The court found that whether exposure constitutes “minimal” or “substantial” depends on the facts of each case. Id. at 1038. Prior to addressing each defendants’ summary judgment motions, the court ruled that circumstantial evidence can be sufficient. Id. at 1037. While illustrating examples, the court provided that the plaintiff’s expert testimony stating every asbestos exposure increases the risk of developing mesothelioma could support a reasonable inference that the defendant’s product was a substantial factor. Id. at 1038.  

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Illinois

Relevant cases: Nolan v. Weil-McLain, 910 N.E.2d 549 (Ill. 2009); Thacker v. UNR Indus., Inc., 603 N.E.2d 449 (Ill. 1992). See also Johnson v. Owens-Corning Fiberglass Corp., 672 N.E.2d 885 (Ill. App. 1996) (plaintiff has burden of proving more than just minimal contact with a defendant’s asbestos product); Bowles v. Owens-Illinois, 996 N.E.2d 1267 (Ill. App. Ct. 2013) (plaintiff failed to prove that decedent worked with or around any of defendant’s asbestos-containing product with sufficient frequency, regularity, and proximity).

Standard adopted by highest state court? Yes                       

Standard: Lohrmann

Thacker involved a decedent who worked for eight years at a plant that had received large amounts of asbestos shipments during and before the decedent’s employment. 603 N.E.2d at 459. The court accepted the Lohrmann test and held that although plaintiff offered no evidence as to where defendant’s asbestos was located in workplace, the fact that defendant’s asbestos was located in the workplace was sufficient. Id. at 459. The court supported this holding with plaintiff’s any exposure testimony. Id. at 454. The Illinois Supreme Court in Nolan subsequently held that the Thacker decision had been erroneously interpreted in concluding that once a plaintiff meets the Lohrmann test, legal causation is established. 910 N.E.2d at 558. It was ruled that a plaintiff must present evidence of more than any exposure to a defendant’s product to satisfy the Lohrmann test and that satisfying the test does not change the plaintiff’s burden in proving causation. Id. at 559. The trial court’s exclusion of evidence that plaintiff was exposed to asbestos manufactured by parties other than defendant was reversed and remanded.Id. at 564.

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Iowa

Relevant cases: Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854 (Iowa 1994); Perrin v. Owens-Corning Fiberglas Corp., 871 F. Supp. 1092 (N.D. Iowa 1994).

Standard adopted by highest state court? Yes

Standard used in Spaur: In Spaur, the Iowa Supreme Court applied the substantial factor test when determining causation, but refused to explicitly adopt the Lohrmann test. 510 N.W.2d at 859. The court stated that Lohrmann is not a rigid test requiring proof under each prong, and is merely used to analyze whether the substantial factor requirement is met. Id. Rather than applying a minimum threshold level test, the court took a fact-specific approach, which involved “the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace.” Id. The approach further consisted of observing the physical characteristics of the workplace and the activities of the direct users of the product and bystander plaintiff. Id. It was held that within this context, the factors to be evaluated include (1) the nature of the product, (2) the frequency of its use, (3) the proximity, in distance and time, of a plaintiff to the use of a product, and (4) the regularity of the exposure of that plaintiff to the use of that product. Id. The court found sufficient evidence to raise a reasonable inference of the plaintiff’s exposure. Id. at 859-60. Plaintiff, whose alleged exposure was over the course of twenty-five years working at a power plant, provided evidence of workplace conditions indicating that insulation frequently drifted throughout the premises. Id. at 860. It was also demonstrated that defendant’s product made up eighty to ninety-five percent of the insulating product used. Id. Despite no explicit adoption, the federal district court in Perrin found that Spaur applied the Lohrmann test and did the same when affirming summary judgment in favor of the defendant. 871 F. Supp. at 1096.

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Kansas

Relevant case: Lyons v. Garlock, Inc., 12 F. Supp. 2d 1226 (D. Kan. 1998).

Standard adopted by highest state court? Statute

Standard: Lohrmann

Under Kansas law, a plaintiff must establish that alleged exposure to asbestos was a substantial factor in causing the injury. In determining whether exposure was a substantial factor, the court will consider, without limitation, the following factors: (1) the manner in which the plaintiff was exposed; (2) the proximity to the plaintiff when the exposure occurred; (3) the frequency and length of the plaintiff’s exposure; and (4) any factors that mitigated or enhanced the plaintiff’s exposure. Kan. Stat. Ann. § 60-4907. In Lyons, plaintiff was unable to offer any evidence demonstrating the defendant’s asbestos-products were used throughout the plant. 12 F. Supp. 2d at 1229. In addition, the insulators who knew the defendant’s product were used at the plant were unable to provide whether plaintiff did any insulation work with the defendant’s product. Id. The court first observed that under Kansas law, a plaintiff must prove that a particular defendant’s product caused their injuries. Id. at 1228. It was held in order to establish exposure to a defendant’s asbestos-related product that caused injury, a plaintiff must prove evidence of exposure to that specific product (1) on a regular basis, (2) over some extended period of time, (3) in proximity to where the plaintiff actually worked.  Id. at 1229. Plaintiff’s argument for a modified approach was rejected after the Lohrmann test was found “well-formulated” by the Tenth Circuit in Dillon.Id. at 1228.

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Kentucky

Relevant cases: Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950 (6th Cir. 2011); Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439 (6th Cir. 2009); R.T. Vanderbilt Co., Inc. v. Franklin, 290 S.W3d 654 (Ct. App. Ky. 2009); Bailey v. North American Refractories Co., 95 S.W.3d 868 (Ct. App. Ky. 2001).

Standard adopted by highest state court? No

Standard used in Moeller: Under Kentucky law, a plaintiff must prove that a defendant’s specific conduct is a substantial factor in causing harm. 660 F.3d at 953-54. Substantial causation refers to probable cause rather than possible cause. Id. at 954. One measure of whether an action is a substantial factor is the number of other factors that contributed in producing the harm and the extent of the effect to which they have in producing it. Id. at 954. This substantial factor standard has been applied to asbestos cases in Kentucky appellate courts and federal courts. See R.T. Vanderbilt and Bailey. The decedent in Moeller worked with defendant’s asbestos-containing gaskets from 1962 to about 1970. 660 F.3d at 952. The court, applying Kentucky law, rejected the any exposure theory, finding the plaintiff failed to quantify the amount of exposure to asbestos. Id. at 955. The plaintiff’s expert also conceded that decedent “sustained massive exposure to asbestos” that did not arise from the defendant’s product. Id. The trial court’s denial of summary judgment was reversed. Id. The court found that although decedent testified that he worked with defendant’s product “every day,” the record failed to show how frequently decedent removed or installed defendant’s gaskets. Id. The record also supported that decedent frequently tore out asbestos insulation, which “would have been thousands of times greater” to contribute to his asbestos exposure than defendant’s gaskets. Id. In Martin, the same standard was used in determining that plaintiff failed to establish exposure to any of defendant’s products. Martin, 561 F.3d at 443.

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Louisiana

Relevant cases: Landry v. Avondale Indus., 111 So.3d 508 (La. Ct. App. 2013); Davidson v. Georgia Pacific LLC, No. 12-1463, 2014 U.S. Dist. LEXIS 95559 (W.D. La. Jul. 14, 2014; Robertson v. Doug Ashy Bldg. Materials, Inc., 77 So.3d 339 (La. App. 2011).

Standard adopted by highest state court? No

Standard: Louisiana courts employ a substantial factor test to determine whether exposure to a particular asbestos-containing product was a cause-in-fact of a plaintiff’s asbestos-related disease. 111 So.3d at 511. This requires the plaintiff to prove that exposure to a certain product was frequent and regular enough to be a substantial factor in bringing about their injury. Id. See also Hoerner v. Anco Insulations, Inc., 812 So.2d 45 (La. Ct. App. 2002); Quick v. Murphy Oil Co., 643 So.2d 1291 (La. Ct. App. 1994). The court in Landry took this rule further by stating that a plaintiff’s burden of proof against multiple defendants in an asbestos case is not relaxed or reduced. Id. at 512. The trial court’s determination that the plaintiff was exposed to the defendants’ asbestos products was reversed due to an absence of proof that exposure was a substantial contributing cause. Id. at 513. In Davidson, defendants objected to any exposure testimony on the grounds it undermines the substantial factor test. 2014 U.S. Dist. LEXIS 95559 at *7. The federal district court agreed with defendants after observing that other jurisdictions consistently reject the theory. Id. at *13-14. It was found that the any exposure theory conflicts with the substantial factor test of causation that is applied under Louisiana law. Id. at *17. Contrary to the federal courts, Louisiana state courts have accepted the any exposure theory, the most notable decision being Robertson, a case whose writ of certiorari was denied in 2012 by the Louisiana Supreme Court. Robertson v. Doug Ashy Bldg. Materials, Inc., 77 So.3d 339 (La. App. 2011).

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Maine

Relevant cases: Richards v. Armstrong Int’l, 2013 Me. Super. LEXIS 110

Standard adopted by highest state court? No                        

Standard: In a multi-party proceeding, the court in Richards held that although “the Maine Law Court” had not accepted or rejected the Lohrmann test, it had been rejected in Campbell, a prior Maine Superior Court ruling. 2013 Me. Super LEXIS at *8; see Campbell v. H.B. Smith Co., Inc., Docket No. CV-04-57 at 7 (Me. Super. Ct., April 2, 2007). The court abided by the Campbell decision, holding a plaintiff must demonstrate (1) the defendant’s product was at the defendant’s workplace, (2) the defendant’s product contained asbestos, and (3) the plaintiff had personal contact with the asbestos from the defendant’s product. Id. at *10. It was further held if a plaintiff produces such direct or circumstantial evidence, the question of whether the defendant’s product was a substantial factor in causing damages is for the jury. Id. at *11. Notable findings in the case included affirming summary judgment after plaintiff failed to establish personal contact with defendant’s product. Id. at *13. The court also found for defendants after decedent’s recollection of defendant’s product being located at plaintiff’s workplace was insufficient. Id. at *26-27. See also Mahar v. Sullivan & Merritt, 2012 Me. Super. LEXIS 123; Boyden v. Tri-State Packing Supply, 2007 Me. Super. LEXIS 47.

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Maryland

Relevant cases: Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445 (Md. 1992); Dixon v. Ford Motor Co., 70 A.3d 328 (Md. 2013).

Standard adopted by highest state court? Yes                       

Standard: In Balbos, the court utilized a substantial factor test that is essentially the Lohrmann test. 604 A.2d at 460. It was held that whether exposure to any particular product is legally sufficient as a substantial factor is determined by the facts of each case. Id. Factors in this analysis include (1) the frequency of the product’s use, (2) proximity, in distance and in time, of a plaintiff to the use of a product, and (3) the regularity of the exposure to the use of a product. Id.See Rotondo v. Keene Corp., 956 F.2d 436 (3d. Cir. 1992) (strongly influenced this decision). Despite not handling the asbestos product directly, both plaintiffs worked in confined areas where they were exposed to large amounts of asbestos. Id. It was held in regards to one of the underlying actions that the fiber drift theory advocated by plaintiff did not satisfy the requirement that exposure be in or near the presence of the plaintiff in order to be a substantial factor. Id. at 463. The case resulted in multiple holdings involving multiple parties. In Dixon, Maryland’s highest court affirmed the trial court’s decision to admit the any exposure testimony and a reliability analysis was not required. 70 A.3d at 337. The court concluded the testimony did not involve the application of a novel scientific method, but instead merely observed the decedent’s exposure and why the repeated exposure was of high intensity. Id. at 333.

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Massachusetts

Relevant cases: O’Connor v. Raymark Industries, Inc., 518 N.E.2d 510 (Mass. 1988); Morin v. AutoZone Northeast, Inc., 943 N.E.2d 495 (Mass. App. Ct. 2011); Welch v. Keene Corp., 575 N.E.2d 766 (Mass. App. Ct. 1991).

Standard adopted by highest state court? Yes                      

Standard: In O’Connor, decedent worked in a shipyard as a welder where he would cover himself with asbestos blankets to protect himself from sparks. 518 N.E.2d at 511. The court affirmed the verdict in favor of defendant, holding the jury instructions requiring exposure to be a substantial factor were appropriate. Id. at 513. In Welch, plaintiff successfully brought claims against six of the defendants involved in the action after alleging exposure between the periods of 1954 and 1976. 575 N.E.2d at 767-68. After one defendant appealed, the court held to prove causation in an asbestos claim, the plaintiff must establish: (1) defendant’s product contained asbestos; (2) the victim was exposed to asbestos in defendant’s product; and (3) such exposure was a substantial contributing factor in causing harm to victim. Id. at 769. The court affirmed judgment for plaintiff, ruling that plaintiff was only required to show it was more likely than not that the defendant’s product was a substantial factor in causing the harm. Id. This was supported with evidence that plaintiff identified four specific worksites where the defendant’s asbestos were manufactured during his career. Id. The court held the jury could infer that the plaintiff’s exposure was a substantial factor after expert testimony explained that the plaintiff’s disease was caused by the cumulative effect of all the asbestos he inhaled over the span of his career. Id. at 770. The court in Morin cited this reasoning along with decisions in other jurisdictions when admitting expert testimony supporting the any exposure theory. 943 N.E.2d at 500.

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Michigan

Relevant case: Roberts v. Owens-Corning Fiberglas Corp., 726 F. Supp. 172 (W.D. Mich. 1989); Barlow v. John Crane-Houdaille, Inc., 477 N.W.2d 133 (Mich. Ct. App. 1991).

Standard adopted by highest state court? No                       

Standard used in cases: In Roberts, action was brought by decedent’s personal representatives alleging asbestos exposure to ten different manufacturers. 726 F. Supp. at 173. After three of the defendants moved for summary judgment, the federal district court held a plaintiff can show proximate cause by establishing that a particular defendant’s asbestos product was used at the specific site within the workplace where they worked. Id. at 174. This rule developed from the Restatement (Second) of Torts §431, the same source that influenced Lohrmann’s substantial factor standard, but the court did not use the Lohrmann test. Id. Summary judgment was granted to all three defendants after plaintiff failed to establish that asbestos products manufactured by defendants were in engine or auxiliary machine rooms where decedent worked. Id. at 175. In addition, no evidence was presented showing that one of the defendant’s products were present on the naval ship. Id. at 174-75. The court in Barlow applied this standard, holding plaintiffs failed to establish that they were exposed to defendant’s asbestos products. 477 N.W.2d at 136.    

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Minnesota

Relevant cases: Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647 (8th Cir. 1991).

Standard adopted by highest state court? No                       

Standard: No standard, but see Souder, where Eighth Circuit applied rule that under Minnesota law, a plaintiff in an asbestos case must prove that exposure to a defendants’ products was a substantial factor. Citing Flom v. Flom, 291 N.W.2d 914 (Minn. 1980).

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Mississippi

Relevant cases: Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss. 2005); Monsanto Co. v. Hall, 912 So.2d 134 (Miss. 2005). See also E.l. DuPont De Nemours & Co. v. Strong, 968 So.2d 410 (Miss. 2007); Brooks v. Stone Architecture, P.A., 934 So.2d 350 (Miss. Ct. App. 2006).

Standard adopted by highest state court? Yes

Standard:Lohrmann

Mississippi adopted the Lohrmann test in Gorman-Rupp after noting that it was the most frequently used test for causation in asbestos cases. 908 So.2d at 757. The plaintiff at issue failed to submit any evidence demonstrating exposure to asbestos-containing products attributable to the defendant when relying solely on the defendant’s response to their request for admissions. Id. Monsanto expanded on this adoption, holding the Lohrmann test is used to show (1) product identification of the defendants’ actual products, (2) exposure to those products, and (3) proximate causation as to the injuries suffered by the plaintiff. Monsanto, 912 So.2d at 137. The plaintiffs in Monsanto did not prove product identification, exposure, and proximate cause with any regularity, frequency, or proximity in regards to the defendant’s product. Id. Any exposure testimony was excluded in Brooks, when the court rejected a medical monitoring class for persons alleging exposure in a school facility. 934 So.2d at 355-56.    

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Missouri

Relevant cases: Hagen v. Celotex Corp., 816 S.W.2d 667 (Mo. 1991); Wagner v. Bondex Intern., Inc., 368 S.W.3d 340 (Mo. App. W.D. 2012); Chism v. W.R. Grace & Co., 158 F.3d 988 (8th Cir. 1998);Kraus v. Celotex Corp., 925 F. Supp. 646 (E.D. Mo. 1996).

Standard adopted by highest state court? Court has recognized a substantial factor test, but application of the standard is unclear.

Standard: In Hagen, the Missouri Supreme Court held that in order to recover, a plaintiff must establish that a manufacturer’s product directly contributed to the harm and each manufacturer’s product was a substantial factor in causing the harm. 816 S.W.2d at 670. The application of this standard differs between federal and state courts. In Chism, the Eighth Circuit established Lohrmann as the proper standard for determining substantial factor causation in Missouri. 158 F.3d at 992. This standard includes observing: (1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked. Id. at 992. The plaintiff’s argued the Missouri Supreme Court rejected the substantial factor test in Callahan, when ruling the “but for” test applies to all cases except when involving two independent tortfeasors. Id. at 991; see Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993). The court ignored the contention, finding the plaintiff’s interpretation to be mistaken. Id. The court qualified this by stating the Callahan decision arose from Missouri’s standard jury instruction, which reads the defendant’s conduct must “directly cause” or “contribute to cause” plaintiff’s injury. Id. On the other hand, the Hagen court noted that the “substantial factor” language provides the standard for determining whether a submissible case has been made, while “directly cause” or “contribute to cause” is the proper language for a jury instruction. Id.Chism’s application of the Lohrmann test was not followed in Wagner, a Missouri state appellate decision. In that case, the court held the substantial factor test was not applicable due to Callahan. 368 S.W.3d at 350. The court found that although Chism adopted the Lohrmann test, the test had not been officially adopted in Missouri. Id. at 354. After concluding there was no need to decide whether Lohrmann applies in Missouri, the court held the plaintiffs presented sufficient evidence to establish that their exposure, and even satisfied the Lohrmann test if applicable. Id. at 355. The court also attempted to make a distinction by pointing out that Chism involved asbestosis, which requires greater exposure to produce a disease, while the current case dealt with mesothelioma. Id. 354.


Nebraska

Relevant case: Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988).

Standard adopted by highest state court? No

Standard used in Menne:

Menne involved an appeal from the federal district of Kansas, but was tried by stipulation under Nebraska law. Id. at 1455. The court predicted that under Nebraska law, a plaintiff establishes a prima facie case of substantial causation by demonstrating: (1) proof of actual exposure in confined spaces to visible asbestos dust from a defendant’s products; (2) within a time period relevant to the acquisition of the injury; (3) under circumstances where exposure could have been extensive enough to produce substantial harm. Id. at 1468. If a prima facie case is made, defendant is then required to prove that exposure was unlikely to have been frequent or long enough to be a substantial factor in causing plaintiff’s injury. Id. The case was remanded for a new trial. Id. at 1475.

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Nevada

Relevant case: Holcomb v. Georgia Pacific, LLC, 289 P.3d 188 (Nev. 2012).

Standard adopted by highest state court? Yes

Standard: Lohrmann

In Holcomb, the Nevada Supreme Court evaluated the different standards for causation in asbestos cases and chose the Lohrmann test as illustrated in Gregg v. V-J Auto Parts, concluding it sufficiently balances the rights and interests of both parties. Id. at 195-98. It was held that in asbestos cases, a plaintiff can must demonstrate an inference of probable exposure to each defendant’s asbestos-containing product individually and more than any exposure must be shown. Id. at 198. The plaintiff had worked with the defendants’ products for forty years. Id. In his action against multiple defendants, the court concluded plaintiff met the burden of proof regarding defendant manufacturers when he specifically identified their product and testified to using them frequently between 1969 and 1978. Id. at 198-99. This included using the products: (1) between 1969 and 1973, as well as 1975 to 1978, (2) prior to 1974 when the defendant’s product contained asbestos, and (3) prior to 1976 or 1978, whenever it was proven the defendant’s product no longer contained asbestos. Id. Summary judgment was affirmed for the defendant supplier. Id. at 200. Although defendant was one of many suppliers for the manufacturers, plaintiff failed to show whether their product was actually used in the manufacturer’s product at time of exposure. Id.

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New Jersey

Relevant cases: James v. Bessemer Processing Co., 714 A.2d 898 (N.J. 1998); Sholtis v. Am. Cyanamid Co., 568 A.2d 1196 (N.J. Super. Ct. App. Div. 1989).   

Standard adopted by highest state court? Yes                       

Standard: In Sholtis, the court held in order to prove “medical causation”, a plaintiff must show that exposure to each defendant’s product was a substantial factor in causing the disease. 568 A.2d at 1208. The court further held that in order to survive summary judgment, a plaintiff must demonstrate medical causation by establishing: (1) factual proof of the plaintiff’s frequent, regular, and proximate exposure to defendant’s products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff’s condition. Id. The court reversed summary judgment, holding that although the plaintiff could not identify a specific defendant’s product, their exposure to numerous manufacturers over four decades was sufficient to create a jury question. Id. at 1207-08. The New Jersey Supreme Court in James expanded the Sholtis holding, rejecting defendant’s argument that the test should only be applied in asbestos cases. 714 A.2d at 911. The court emphasized that the Lohrmann test assigns liability only to those defendants to whose products the plaintiff can demonstrate intense exposure. Id. at 910. See also Provini v. Asbestospray Corp., 822 A.2d 627 (N.J. Super. 2003). See also Est. of Brust v. ACF Industries, LLC, 127 A.3d 729, 744 (N.J. Super. App. Div. 2015) (suggesting that the any exposure theory would be rejected under New Jersey causation test where plaintiff presented evidence that she was exposed to asbestos approximately twelve times in her life but could not identify whether she had been exposed to defendants’ products more than once, if at all).

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New Mexico

Relevant case: Huber v. Armstrong World Indus., 930 F. Supp. 1463 (D. N.M. 1996).

Standard adopted by highest state court? No                        

Standard: The court in Huber stated that several courts have followed Lohrmann by holding that “mere proof that the plaintiff and a certain asbestos product are at the [workplace] at the same time, without more, does not prove exposure to that product.” 930 F. Supp. at 1465. The court found that even under the more liberal substantial factor test established in Menne, a plaintiff must provide some evidence to establish the likelihood of frequent or sustained exposure to the product. Id. The court concluded that plaintiff failed to meet both standards, primarily relying on Lohrmann’s rule that an inference of circumstantial evidence must not be speculative. Id.

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New York

Relevant cases: Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir. 1990); Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666 (N.Y. 1980); Parker v. Mobil Oil Corp., 857 N.E.2d 1114 (N.Y. 2006); Matter of New York City Asbestos Litig., 960 N.Y.S.2d 51 (2012); Matter of New York City Asbestos Litig., 121 A.D.3d 230 (N.Y. App. Div. 2014); Matter of N.Y.C. Asbestos Litig., 2017 NY Slip Op 01523, 148 A.D.3d 233, 48 N.Y.S.3d 365 (App. Div. 2017) (“Juni”). See other federal decisions applying standard: In re New York Asbestos Litigation, 738 F. Supp. 66 (E.D.N.Y. 1990); Kreppein v. Celotex Corp., 969 F.2d 1424 (2d Cir. 1992). 

Standard adopted by highest state court? In a non-asbestos case

Standard: New York federal courts have taken the rule formulated in Derdiarian and applied it to asbestos cases. In order to succeed on their claim, a plaintiff has the burden of proving to the jury that he was exposed to defendant’s product and that it is more likely than not that their exposure was a substantial factor in their injury. 899 F.2d at 1285-86. Plaintiff must produce evidence identifying each defendant’s product as being a factor to their injury. Id. at 1286. In Kreppein, the court held a product nexus was established after co-worker testimony identified the defendant’s products and worked during the same time as plaintiff. 969 F.2d at 1426. Many other decisions have found there to be substantial evidence when there is testimony establishing the products to have been in the same place as the plaintiff. See Hamilton v. Garlock, Inc., 96 F. Supp. 2d 352 (S.D.N.Y. 2000); In re Asbestos Litigation, 986 F. Supp. 761 (S.D.N.Y. 1997). In Parker, a benzene case, the court ruled any opinion on causation should set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular illness, (3) plaintiff was exposed to sufficient levels of the toxin to cause the illness—in a scientific expression. 857 N.E.2d at 1120-21. State court decisions have also either directly or loosely applied the standard set forth in Derdiarian.See Matter of New York City Asbestos Litig., 121 A.D.3d 230 (N.Y. App. Div. 2014); In re New York Asbestos Litigation, 121 A.D.3d 2230 (N.Y. App. Div. 2014); Matter of New York City Asbestos Litig., 960 N.Y.S.2d 51 (2012); Diel v. Flintkote Co., 204 A.D.2d 53 (N.Y. App. Div. 1994).

In 2017, the New York Appellate Division, First Department confirmed that the “every exposure” counts and “cumulative exposure” theories do not meet New York’s standard of proving causation in asbestos cases. Matter of N.Y.C. Asbestos Litig., 2017 NY Slip Op 01523, 148 A.D.3d 233, 48 N.Y.S.3d 365 (App. Div. 2017) (hereinafter “Juni”). The court in Juni followed the holdings set forth in Parker and Cornell. In order to establish causation, according to the Juni court, expert testimony must set forth that: (1) plaintiff was exposed to a toxin; (2) the toxin is capable of causing the particular illness the plaintiff suffered (general causation); and (3) the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Experts must give some quantification of a plaintiff’s exposure or some scientific basis for a finding of causation attributable to the particular defendant’s product—requiring more than the every exposure or cumulative exposure theory. The court articulated that a judgment in an asbestos case cannot stand “solely on a bare conclusion that because the plaintiff worked with the defendant’s asbestos-containing products, those products were a contributing cause of the plaintiff’s mesothelioma.” We anticipate this decision will be appealed to the Court of Appeals. 

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North Carolina

Relevant case: Jones v. Owens-Corning Fiberglas Corp. and Amchem Products, Inc., 69 F.3d 712 (4th Cir. 1995).

Standard adopted by highest state court? No

Standard used in Jones: Lohrmann

The court in Jones used the Lohrmann test when finding sufficient evidence to establish the plaintiffs’ exposure. Id. at 718. Testimony demonstrated that (1) the plaintiffs had worked around the defendant’s products more than twenty years, (2) during that time period, there was exposure and inhalation of asbestos dust and (3) exposure was on a daily basis. Id. at 716. In Logan v. Air Products and Chemicals, Inc., the court held the plaintiff’s evidence was not as strong as the plaintiff in Jones. The court rejected a more relaxed Lohrmann test proposed by plaintiff, finding that demonstrating actual causation to a defendant’s product is paramount under North Carolina law. 2014 U.S. Dist. LEXIS 157958 at *11-14; Yates v. Air & Liquid Systems Corp., 2014 U.S. Dist. LEXIS 141658; Prekler v. Owens-Corning Fiberglas Corp., 60 F.3d 824 (4th Cir. 1995).

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Ohio

Relevant cases: Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005). See also Stark v. Armstrong World Indus., Inc., 21 F. App’x 371 (6th Cir. 2001).

Standard adopted by highest state court? Statute                  

Standard: Lohrmann

A plaintiff in an asbestos case has the burden of proving that they were exposed to asbestos that was manufactured, supplied, installed, or used by the defendant in the action and that exposure was a substantial factor in causing the harm. When determining whether exposure was a substantial factor, the following factors are considered: (1) the manner in which the plaintiff was exposed to the defendant’s asbestos; (2) the proximity of the defendant’s asbestos to the plaintiff when the exposure to the defendant’s asbestos occurred; (3) the frequency and length of the plaintiff’s exposure to the defendant’s asbestos; and (4) any factors that mitigated or enhanced the plaintiff’s exposure to asbestos. Ohio Rev. Code Ann. § 2307.96(B). In Lindstrom, the court held that minimal exposure to a defendant’s product and a mere showing that a defendant’s product was present somewhere at plaintiff’s place of work is insufficient. Id. Instead, a plaintiff must prove substantial exposure in order for a product to be a substantial factor in causing the injury. Id. Summary judgment was affirmed after plaintiff failed to identify defendant’s product and any exposure in connection with defendant’s product. Id. at 497. Other witness testimony established that although defendant’s products were present, they could not confirm that all of the product in question was indeed the defendants. Id. See also Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004).

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Oklahoma

Relevant case: Dillon v. Fibreboard Corp., 919 F.2d 1488 (10th Cir. 1990).

Standard adopted by highest state court? No

Standard used in Dillon: Lohrmann

In Dillon, the Tenth Circuit held that in an Oklahoma asbestos case, a plaintiff must prove the product was the cause of the injury and mere possibility is not enough. Id. at 1491. A causative link then must be established through circumstances which would insure a significant probability that the defendant’s acts were related to the plaintiff’s injury. Id. The court found this standard strongly similar to Lohrmann, validating its adoption.Id. Plaintiff defeated summary judgment after submitting deposition testimony that specifically identified each of the defendant’s products and described the handling of the products. Id. The court concluded the testimony adequately placed the defendant’s asbestos-containing products at the oil refinery and demonstrated repeated, regular, and direct physical contact for over twenty years. Id. at 1492.


Oregon

Relevant case: Purcell v. Asbestos Corp., Ltd., 959 P.2d 89 (Or. App. 1998).

Standard adopted by highest state court? No

Standard used in Purcell: Expert testimony concluded that multiple exposures over time, to multiple manufacturers’ and distributors’ of asbestos products, combined to create an increased risk of worker’s mesothelioma. Id. at 94. The court found this sufficient to show causation under the “substantial factor” standard and that further showing of the worker’s proximity or regularity of exposure to particular manufacturer’s products was not necessary. Id. Defendant argued for a more rigid test emphasizing frequency, regularity, and proximity. Id. This argument was rejected after observing other jurisdictions that accepted the any exposure theory and applied the less rigid Lohrmann test. Id. The trial court’s denial of the defendant’s motion for directed verdict was affirmed. Id. at 96.

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Pennsylvania

Relevant cases: Gregg v. V-J Auto Parts Co., 943 A.2d 216 (Pa. 2007); Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. Ct. 1988). See also Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir. 1990).

Standard adopted by highest state court? Yes

Standard: Lohrmann

In Eckenrod, the superior court held when a plaintiff provides direct evidence, the inquiry for causation is whether they have pointed to sufficient material facts in the record to indicate a genuine issue of material fact for each particular defendant’s product. 544 A.2d at 53. When a plaintiff provides circumstantial evidence, the frequency, regularity, and proximity test is used to determine whether there is a genuine issue of material fact. Id. This holding was modified by the Pennsylvania Supreme Court’s ruling in Gregg. In Gregg, plaintiff alleged occupational and non-occupation exposure to asbestos during the 1950’s and ‘60’s. 943 A.2d at 218. The court first held the bright-line distinction between direct and circumstantial evidence applied in Eckenrod was unnecessary since most cases involve a mixture of both. Id. at 226. The court concluded the Lohrmann test is not a rigid standard with an absolute threshold, but is rather an aid in separating plaintiffs that provide evidence showing a significant likelihood of exposure from plaintiffs that only provide evidence of minimal exposure. Id. at 225. Application of the test should be tailored to the facts of each case and its application becomes “somewhat less critical” where a plaintiff provides specific evidence of exposure to a defendant’s product. Id. The court also found that the any exposure theory testimony is a generalized opinion that does not suffice to create a jury question in a case with de minimis exposure. Id. at 226. This assertion is supported by various other Pennsylvania decisions. See Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa. 2013); Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012); Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir. 1990) (all rejecting any exposure theory). Betz specifically held that each and every exposure, no matter how small, is substantially causative of disease, cannot be relied on as a basis to establish substantial-factor causation for dose-responsive diseases. 44 A.3d at 55-58. However, this is not as firm of a rule based on the Pennsylvania Supreme Courts’ most recent ruling in Rost v. Ford Motor Co., 151 A.3d 1032, 2016 Pa. LEXIS 2638 (Pa. 2016). In Rost, the Court, again, further “illuminated” the principles set forth in Gregg and Betz. Plaintiff’s expert, Dr. Frank, essentially provided “cumulative exposure theory” testimony and stated that all exposures should be considered as contributing to the development of plaintiff’s disease. 151 A.3d at 1940-41. Rejecting the defendant’s argument that this testimony was contrary to Gregg and Betz, the Court reasoned that “while Dr. Frank clearly testified that every exposure to asbestos cumulatively contributed to Rost’s development of mesothelioma, he never testified that every exposure to asbestos was a ‘substantial factor’ in contracting the disease.” Id. at 1045-46. Further, the Court noted that Dr. Frank did not testify that a single breath of asbestos caused the disease, but rather the entirety of Rost’s exposures during his three month employment caused the disease. Id. At 1046. Consequently, while Pennsylvania rejects the “any exposure” theory, the definition of that theory is much more restrictive and narrow in practice. 

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Rhode Island

Relevant case: Sweredoski v. Alfa Laval, Inc., 2013 R.I. Super. LEXIS 111.

Standard adopted by highest state court? No                       

Standard used in Sweredoski: Lohrmann

After surveying causation approaches in different states, the court in Sweredoski held the Lohrmann test strikes the appropriate balance between the claimants and manufacturer and comports with Rhode Island’s causation standards. 2013 R.I. Super. LEXIS 111 at *16-17. Once establishing the standard, the court rejected the expert testimony, holding that the any exposure theory by itself fails to satisfy the frequency and regularity prongs of the Lohrmann test. Id. *21-25. It was held a plaintiff can present any exposure evidence at trial, but the evidence will not satisfy the causation standard unless accompanied by evidence sufficiently meeting the Lohrmann test. Id. at *27-28. Defendant’s motion in limine to exclude plaintiff’s any exposure testimony was denied. Id. at 28.   


South Carolina

Relevant cases: Henderson v. Allied Signal, Inc., 644 S.E.2d 724 (S.C. 2007); Sparkman v. A.W. Chesterton Co., 2:12-CV-02957-DCN, 2014 WL 7369489 (D.S.C. Dec. 29, 2014).

Standard adopted by highest state court? Yes

Standard: Lohrmann

South Carolina adopted the Lohrmann test in Henderson, holding in order for an asbestos claim to be actionable, the plaintiff must establish sufficient proximate cause between the injury and exposure to asbestos from a particular product. Id. at 727. The trial court’s judgment for defendant was affirmed and the court agreed that “presence in the vicinity of static asbestos is not exposure to asbestos.” Id. In Sparkman, the estate of a former boiler operator who had contracted mesothelioma attempted to prove he was exposed to defendant’s asbestos-containing boilers through the testimony of co-workers. Id. at 2. The court rejected plaintiff’s proposal for a more relaxed causation standard in mesothelioma cases than the standard articulated in Lohrmann, an asbestosis case, reasoning that South Carolina had expressly adopted the “frequency, regularity, and proximity test” for both types of cases. Id. at 3. The court also granted defendant’s motion for summary judgment because plaintiff failed to establish exposure to asbestos from any specific product manufactured by defendant. Id. at 5.


Tennessee

Relevant cases: Cox v. Foster Wheeler Corp., No. 1-272-01, 2004 WL 5212683 (Tenn. Cir. Ct. July 8, 2004); Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459 (6th Cir. 1982) (approving instruction requiring jury to find product was substantial contributing factor); Murphy v. Owens-Illinois, Inc., 779 F.2d 340 (6th Cir. 1985) (holding evidence presented jury question whether defendant’s product was substantial factor in causing plaintiff’s harm); Payne v. CSX Transportation, Inc., 467 S.W.3d 413 (Tenn. 2015).

Standard adopted by highest state court? No                       

Standard: No standard but see Cox v. Foster Wheeler Corp. where the court applied the Lohrmann test. In Payne, the Tennessee Supreme Court ruled that any exposure testimony offered by plaintiffs’ experts was properly admitted at trial. Id. at 420. However, this case was under the Federal Employee’s Liability Act governing railroads, which employs a unique and broad causation standard. Id. at 436 (“[T]o prove causation, a FELA plaintiff need only show that the railroad's negligence ‘played any part, even the slightest, in producing the injury or death for which damages are sought.’”) (citation omitted). It is unknown whether trial courts will apply Payne to an asbestos case under a substantial factor test.

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Texas

Relevant cases: Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007); Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014).

Standard adopted by highest state court? Yes

Standard: Defendant-Specific-Dosage Plus Substantial Factor

In Flores, the Texas Supreme Court held that 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 is sufficient to show causation. Id. at 773. Plaintiff, who worked as a brake mechanic for over thirty years, alleged exposure to defendant’s brake pads between 1972 and 1975. Id. at 766. Of the roughly twenty brake jobs the plaintiff performed each week, five to seven of them involved defendant’s product. Id. The court ruled that although plaintiff appeared to meet the Lohrmann test, Texas law requires the plaintiff also demonstrate the amount of asbestos necessary to prove causation. Id. at 772. Judgment in favor of plaintiff was reversed. Id. at 774. The court’s reasoning relied on the fact that a minimum threshold must be met and under some applications of the Lohrmann test, demonstrating that merely some exposure occurred can be sufficient. Id. In Bostic, the court reaffirmed the rejection of the any exposure theory, holding the application of Flores applies to both mesothelioma and asbestosis cases. 439 S.W.3d at 338. The court found the any exposure theory to be illogical because it conceives “that any exposure from a defendant above background levels should impose liability, while the background level of asbestos should be ignored.” Id. at 341.

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Utah

Relevant cases: Smith v. Ford Motor Co., 2013 U.S. Dist. LEXIS 7861. See also Anderson v. Ford Motor Co., 950 F. Supp. 2d 1217 (D. Utah 2013); .  

Standard adopted by highest state court? No           

Standard used in Smith: In Smith, a federal district court in Utah rejected plaintiff’s any exposure testimony. 2013 U.S. Dist. LEXIS 7861 at *4-5. The court concluded that the notion that although every asbestos fiber contributes to mesothelioma, each of the defendant’s product is a substantial factor was inconsistent. Id. at *4. The court stated “in reaching this conclusion, the court agrees with the growing number of published opinions from other courts that have reached a similar result: that the every exposure theory as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support.” Id. at *5. The Anderson court followed Smith, holding a plaintiff’s expert testimony was unreliable and the any exposure theory lacked necessary scientific data. 950 F. Supp. 2d at 1224. Plaintiff’s expert failed to provide any information regarding (1) the actual level of exposure necessary to cause mesothelioma, (2) scientific data involving dosage, (3) the plaintiff’s exposure to the defendant’s products, (4) or the type of asbestos fibers the defendant’s products may have contained. Id.

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Virginia

Relevant case: Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013); Wannall v. Honeywell International, Inc., 292 F.R.D. 26 (D.D.C. 2013) (applying Virginia law).

Standard adopted by highest state court? Yes

Standard used in Boomer: In Boomer, the court rejected the substantial factor test after observing that its definition throughout other jurisdiction vary. 736 S.E.2d at 727-32. Despite the ridicule given to the substantial factor test, the court formulated a rule that exposure to asbestos must be a “sufficient cause.” Id. at 732. This test requires that exposure is more likely than not sufficient to cause mesothelioma. Id. at 731. The court further declared that in proving sufficient cause, experts must provide testimony as to what level of exposure is sufficient. Id. at 733. The court held if a plaintiff is exposed to multiple sources of asbestos, they must establish that each defendant’s product alone was a sufficient cause. Id. at 732. If more than one party caused sufficient exposure, each is responsible unless competent medical testimony can indicate otherwise. Id. at 732. Due to the trial court’s failure to include a multiple-sufficient-cause instruction, the case was reversed and remanded. Id. at 732-33. This standard was further clarified in Wannall, where plaintiff’s expert claimed that any level of exposure to asbestos is “sufficient cause.” 292 F.R.D. at 40. The testimony was rejected after the assertion was found to be merely about risk and not causation. Id. at 43.

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Washington

Relevant cases: Lockwood v. A C & S, Inc., 744 P.2d 605 (Wash. 1987). See also McPhee v. Ford Motor Co., 135 Wash. App. 1017 (2006) (rejecting any exposure theory).

Standard adopted by highest state court? Yes

Standard:Under Washington law, courts must consider a number of factors when determining whether there is sufficient evidence supporting causation. These factors include: (1) the plaintiff’s proximity to the asbestos product when exposure occurred; (2) the expanse of the work site where asbestos fibers were released; (3) the extent of time the plaintiff was exposed to the product; (4) what types of asbestos products the plaintiff was exposed to; (5) how the plaintiff handled and used those products; (6) expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular; and (7) evidence of any other substances that could have contributed to the plaintiff’s disease, including expert testimony as to the combined effect of exposure to all possible sources of the disease. Lockwood, 744 P.2d at 614; see Allen v. Asbestos Corp., Ltd., 157 P.3d 406, 409 (Wash. Ct. App. 2007). The plaintiff does not have to personally identify the defendant, but instead can provide testimony identifying the defendant’s products that were present at the plaintiff’s workplace. Id. at 612. This test was applied in Lockwood, where decedent worked thirty years in ship construction. Id. at 608. Plaintiffs provided evidence that although decedent did not work directly with asbestos, he often worked in the same area as the asbestos installers. Id. Defendants argued they were entitled to summary judgment because decedent did not work directly with asbestos and plaintiffs failed to specifically identify that their products were aboard the vessel. Id. at 611. The court disagreed, holding that plaintiffs sufficiently established medical causation. Id. at 613. See also Barabin v. AstenJohnson, Inc., 700 F.3d 428 (9th Cir. 2012) (district court in Washington failed to assess scientific reliability of any exposure testimony); Taylor v. Union Carbide Corp., 147 Wash. App. 1017 (2008) (demonstrating when a plaintiff meets the burden). In McPhee v. Ford Motor Co., the plaintiff’s expert testimony presented the any exposure theory. 2006 Wash. App. LEXIS 2276 at *8-9. The court ruled affirmed summary judgment after the testimony conflicted with the expert’s deposition testimony.Id. at *10. The court additionally provided that expert “affidavits containing conclusory statements without adequate factual support are insufficient.” Id.

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Wisconsin

Relevant cases: Zielinski v. A.P. Green Indus., 661 N.W.2d 491 (Wis. Ct. App. 2003); Check v. Owens-Corning Fiberglas Corp., 1994 Wisc. App. LEXIS 63; Suoja v. Owens-Illinois, Inc., 211 F. Supp. 3d 1196 (W.D. Wis. 2016).

Standard adopted by highest state court? No                       

Standard: When dealing with causation and summary judgment, the Wisconsin Supreme Court asks the question of whether the defendant’s negligence was a substantial factor in contributing to the result which would lead a reasonable trier of fact to regard it as a cause. 661 N.W.2d at 496; citing Merco Distrib. Corp. v. Commercial Police Alarm Co., 267 N.W.2d 652 (Wis. 1978). Mere possibility or speculation of such causation is not enough. Id. at 497. In Zielinski, the court held plaintiffs presented sufficient evidence to create a genuine issue of material fact, finding a fact-finder could infer that the plaintiff used defendant’s product during the time of alleged exposure.Id. at 498. It was found that a number of jurisdictions establish a bright-line test for causation in asbestos litigation by either making broad pronouncements of law that simplify the causation issue or narrowly deciding each case on the facts presented. Id. at 497. Although the court acknowledged its usefulness, it declined to adopt a bright-line causation rule for asbestos, fearing it would over-simplify a complex problem. Id. Another significant decision took place in Check, where the court of appeals declined to adopt the Lohrmann test. 1994 Wisc. App. LEXIS at *9. The court held that adopting such a rule is solely up to the Wisconsin Supreme Court. Id. The court found that Wisconsin applies a substantial factor concept where the cause of an accident is not determined by its most immediate factor. Id. at *10. It was further found that all substantial factors allegedly contributing to the injury must be considered and applying Lohrmann would preclude the trier of fact from considering the “total product exposure evidence.” Id. at *10-11.  In a federal district court case applying Wisconsin law, the court ruled that expert testimony couched as a “cumulative exposure” theory was no different than the “any” or “each and every exposure” theories, and was therefore inadmissible to show the defendant’s products were a substantial factor in causing plaintiff’s injuries. Suoja v. Owens-Illinois, Inc., 211 F. Supp. 3d 1196, 1207 (W.D. Wis. 2016).

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Wyoming

Relevant cases: Johnson v. Allis-Chalmers Corp. Product Liability Trust, 11 F. Supp. 3d 1119 (D. Wyo. 2014). See also McMahon v. Celotex Corp., 962 F.2d 17 (10th Cir. 1992).

Standard adopted by highest state court? No                       

Standard used in Johnson:

In Johnson, the court was faced with a choice of law issue after the case was transferred from Pennsylvania to Wyoming. 11 F. Supp. 3d at 1124. The court concluded that Pennsylvania and Wyoming’s negligence and product liability laws were identical and that Wyoming had adopted the substantial factor test. Id. at 1125. It was contended that the two states differed in asbestos cases due to Pennsylvania’s adoption of the Lohrmann test. Id. at 1126. The court rejected this argument, holding that although the Lohrmann test is a refinement of the substantial factor test, it is not a different legal rule or test. Id. When plaintiff failed to demonstrate any exposure to the defendants’ products, summary judgment was granted. Id. at 1138.

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