U.S. Court of Appeals for the Fourth Circuit Reaffirms Application of “Lohrmann Standard” Thirty Years Later
On March 30, 2016, the United States Court of Appeals for the Fourth Circuit reaffirmed the application of the "frequency, regularity, and proximity" test it originally set forth 30 years ago in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986).
In Pace v. Air & Liquid Sys. Corp., 2016 U.S. App. LEXIS 5832 (4th Cir., Mar. 30, 2016), the claimant, a U.S. Navy machinist, was diagnosed with mesothelioma in 2011. The matter was removed to the U.S. District Court due to allegations of asbestos exposure at the U.S. Navy Shipyard in Charleston, SC, where Plaintiff worked between 1972 and 1995.
Notably, the Fourth Circuit states that its application of the Lohrmann standard is not disease dependent, which resolves an artificial dispute about the original intent of the standard. The Court was unpersuaded by and rejected claimant’s arguments that the Lohrmann test "must be applied less rigidly in mesothelioma cases than in cases involving non-malignant asbestosis, which develops after a more substantial exposure to asbestos."1
The importance of this comment cannot be understated because the asbestos litigation landscape has changed dramatically in last 30 years. When Lohrmann was originally decided by the Fourth Circuit, the majority of filings were non-malignant pulmonary disease matters involving claimants that had been potentially exposed to asbestos insulation for decades. In fact, Mr. Lohrmann was himself a pipefitter who sued 19 asbestos insulation manufacturers for a disputed asbestosis diagnosis. All of those asbestos insulation manufacturers are now extinct after decades of litigation, but research predicts that the diagnosis of mesothelioma are near all-time highs, and may not return to background levels until 2055.2 Despite asbestos insulation being banned in the 1970’s, it is estimated that 71,000 cases of mesothelioma will be diagnosed in male populations between 2003 and 2054.3
The specific factual analysis in Pace reviews the circumstantial evidence for three pump manufacturers and a turbine manufacturer, particularly whether the evidence supported a finding of frequent, regular, and proximate exposure to asbestos to allow the matter to proceed to trial. To prove his case, Plaintiff presented a self-serving affidavit that he “regularly worked with or in the vicinity of asbestos containing products.”4 There was documentary evidence to establish the products contained asbestos at the relevant dates. Finally, Mr. Pace relied on testimonial evidence by product identification co-workers.
Although there was testimony about each product manufacturer in the record, the Court ultimately concluded, “we are constrained to conclude that no reasonable jury could find that any of the Defendants' products substantially caused Mr. Pace's mesothelioma under the Lohrmann test.”5 The Pace decision confirms that to survive a dispositive motion, a claimant needs much more than mere identification of a product.
The 30th anniversary reaffirmance of Lohrmann highlights its importance in asbestos toxic tort litigation. Since the opinion was published, Lohrmann has been cited, followed, distinguished, and/or criticized on nearly 6,000 occasions in federal and state courts. This is close to the number of citations to the seminal constitutional right of privacy opinion (and law school favorite) issued by the U.S. Supreme Court in Bowers v. Hardwick, 478 U.S. 186 (1986), which was rendered the same year.
For additional information on Lohrmann, see A National Compendium of Causation Standards in Asbestos Litigation.
Eric A. Ludwig is a partner in the Atlanta office of Hawkins Parnell Thackston & Young LLP. Eric is an experienced trial attorney who concentrates his practice in the areas of product liability, toxic tort, and environmental litigation. He defended another party in the Pace case, but his client was voluntarily dismissed after filing for summary judgment.
1 Pace at *8.
2 Price and Ware, Mesothelioma Trends in the United States: An Update based on Surveillance, Epidemiology, and End Results Program Data for 1973 through 2003. Am. J. of Epidemiology Jan. 15, 2004; Vol. 159, No.2 (2004).
4 Pace at *3.
5 Pace at *9.