By the Court,
In this appeal, we examine the causation tests that courts have implemented when a plaintiffs or decedent’s mesothelioma is alleged to have been caused by exposure to a defendant’s asbestos-containing products. We take a balanced approach to find a causation test that is not overly rigorous or too relaxed in order to ensure protection for both manufacturers and consumers. Ultimately, we agree with the majority view and adopt the test set forth in Lohrmann v. Pittsburgh Corning Corp.,
In light of that standard, we then determine whether appellants submitted sufficient causation evidence to raise triable issues of material fact regarding whether, in this case, the decedent’s mesothelioma was probably caused by the respondents’ products. In doing so, we conclude that appellants presented sufficient evidence to defeat summary judgment as to respondents Kelly-Moore Paint Company, Inc.; Kaiser Gypsum Company, Inc.; and Georgia Pacific, LLC, but not as to respondent Union Carbide Corporation. Accordingly, we affirm the summary judgment in Union Carbide’s favor but reverse the summary judgment as to the remaining respondents.
FACTS AND PROCEDURAL HISTORY
This case arises out of Randy Holcomb’s (Holcomb) contraction of and resulting death from mesothelioma, a cancer affecting the lining of the lungs, typically caused by exposure to asbestos. Before Holcomb died in 2008, he and his wife, appellant Tamara Holcomb, filed a complaint against joint-compound manufacturers Bondex International, Inc., and related companies;
Holcomb’s use of asbestos-containing products
According to Holcomb’s deposition testimony, he worked in the construction industry in Florida from 1969 through 1973, performing sheetrock and dry wall work using both dry joint-compound powder packaged in paper bags, which had to be mixed with water prior to use, and pre-mixed joint compound packaged in buckets. According to Holcomb, the application of these joint-compound products created multiple occurrences of dusty, asbestos-laden conditions at each job site. After a year of military service, Holcomb moved to Las Vegas around 1975, where he resumed construction and sheetrock work for several years, first for a motel and later on construction sites. For the construction work in both Florida and Nevada, Holcomb recalled that he used Bon-dex, Paco, and Paco Quik-Set (manufactured by Kelly-Moore), Kaiser Gypsum, and Georgia Pacific brands of joint compound. He recalled using these
Additionally, beginning in 1969 when he moved to Florida and regularly thereafter, Holcomb worked as a brake mechanic in the automotive industry, often performing these jobs on the side, in addition to his other work. The brake jobs allegedly required scuffing, beveling, and filing the edges of asbestos-containing brakes, creating dusty conditions in which he breathed. Holcomb asserted that these repeated exposures to the brake and joint-compound products caused his mesothelioma later in life.
Causation evidence
Appellants presented testimony and a letter from pathologist Dr. Ronald Gordon, Ph.D., in which he concluded after examining Holcomb’s lung tissue that Holcomb’s mesothelioma was attributable to asbestos. Dr. Gordon found “significant asbestos fiber burden” present in the lung tissue that “was the causative factor in the development of his mesothelioma.”
In addition, appellants submitted the report and deposition testimony of Dr. Edwin Holstein, M.D., M.S., who provided expert opinion regarding the medical cause of Holcomb’s mesothelioma.
Procedural posture
The joint-compound and automotive-brake defendants separately moved for summary judgment on the ground that Holcomb’s deposition testimony was too vague to raise triable issues of fact regarding his threshold exposure to any asbestos contained in their products. The district court granted summary judgment to the joint-compound defendants, concluding that appellants had failed to submit sufficient evidence of exposure to allow a jury to find that those defendants’ products were substantial factors in causing Holcomb’s mesothelioma. The district court pointed out that Holcomb could not definitively describe when or how regularly and frequently he used each defendant’s products, did not identify products but only manufacturers, and could not identify whether the products that he used contained asbestos. The court largely denied summary judgment to the automotive-brake defendants, concluding that appellants had submitted sufficient
In resolving the summary judgment motions, the district court considered caselaw from a host of jurisdictions, including a Fourth Circuit Court of Appeals opinion, Lohrmann v. Pittsburgh Corning Corp.,
DISCUSSION
This court reviews a district court’s order granting summary judgment de novo, without deference to the findings of the lower court. Francis v. Wynn Las Vegas,
Here, appellants argue that the district court erred in granting summary judgment on the basis that Holcomb could not specify regular and frequent exposure to any particular product containing asbestos sufficient to demonstrate that the product was a substantial factor in causing his mesothelioma. They assert that respondents sought summary judgment based solely on Holcomb’s alleged failure to establish a threshold amount of exposure. Because appellants’ expert opined that even low exposures are sufficient to cause mesothelioma, appellants contend that they established a threshold amount of exposure by averring that Holcomb was exposed to asbestos in respondents’ products, and they therefore presented a triable issue of material fact. Respondents contend that the district court properly granted summary judgment because appellants were not able to demonstrate a minimum level of exposure to asbestos in any particular joint-compound product.
The causation standard in asbestos-induced mesothelioma cases
Regardless of the cause of action, causation—encompassing both medical causation and sufficient exposure—is a necessary element in proving appellants’ case.
Given the often lengthy latency period between exposure and manifestation of injury, poor record keeping, and the expense of reconstructing such data, plaintiffs in asbestos litigation typically are “unable to prove with any precision how much exposure they received from any particular defendant’s products.” David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook. L. Rev. 51, 55 (2008); see Anthony Z. Roisman, Martha L. Judy & Daniel Stein, Preserving Justice: Defending Toxic Tort Litigation, 15 Fordham Envtl. L. Rev. 191, 203 (2004). To remedy this situation, which could unfairly deny deserving plaintiffs in asbestos cases any recovery, courts have fashioned a variety of causation standards in an attempt to balance the interests of plaintiffs with the interests of nonresponsible defendants. Bernstein, supra, at 51. Beginning with Borel v. Fibreboard Paper Products Corporation,
Nevada has not articulated any particular causation standard in asbestos cases for determining whether a plaintiff’s or decedent’s mesothelioma is sufficiently caused by exposure to a defendant’s products. Therefore, we consider the causation standards used in three preeminent asbestos litigation cases:
Appellants urge this court to adopt the causation standard for asbestos cases pioneered by the California Supreme Court in Rutherford. Conversely, Kelly-Moore, Kaiser Gypsum, and Georgia Pacific request that this court adopt the Fourth Circuit’s Lohrmann standard. Union Carbide does not advocate for a specific test, but relies primarily on Rutherford and its progeny in responding to appellants’ arguments. We discuss each standard in turn.
Rutherford, Flores, and Lohrmann
In Rutherford, a lung cancer case, the California Supreme Court held that “plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s [or decedent’s] exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.”
The Rutherford test “treat[s] every non-negligible exposure to risk as a factual cause.” Jane Stapleton, The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims, 74 Brook. L. Rev. 1011, 1029 (2009). One legal commentator noted that, in Rutherford, the California Supreme Court departed from traditional tort principles by adopting a “radical” approach to risk exposure and ‘ ‘proceeding on the idea (a fiction) that every asbestos fiber was involved in the cancer mechanism.” Id. We agree with these concerns and conclude that this test does not strike the proper balance, as its extraordinarily relaxed nature does not afford enough protection for manufacturers that may not have caused the resulting disease.
The Texas Supreme Court has also embraced a “substantial factor” test, but has applied the test more strictly than the California Supreme Court decision suggests is necessary. Borg-Warner Corp. v. Flores,
After the court of appeals affirmed the judgment in favor of the plaintiff, the Texas Supreme Court, recognizing the proof difficulties accompanying asbestos claims, turned to California’s Rutherford decision in establishing a suitable test. Id. at 772-73. The court acknowledged that plaintiffs cannot be expected to prove unknown details of a given asbestos fiber. Id. (citing Rutherford,
Instead, we are persuaded by the Lohrmann v. Pittsburgh Corning Corp.,
The plaintiff in Lohrmann was a pipefitter at a shipyard in Baltimore, Maryland, for nearly 40 years.
In crafting a causation standard, the Fourth Circuit “attempt[ed] to reduce the evidentiary burden on plaintiffs while still absolving defendants who were not responsible for plaintiffs’ injuries.” Bernstein, supra, at 56; see also Sholtis v. American Cyanamid Co.,
In affirming the district court’s directed verdict, the Fourth Circuit held that the plaintiff did not present evidence to show sufficient contact with the defendants’ products and failed to raise a permissible inference that exposure to the defendants’ products was a substantial factor in the development of his asbestosis. Id. at 1163-64. There was testimony and evidence presented showing that asbestos-containing products—namely, cloth and pipe covering— were used at the shipyard on an almost daily basis. Id. at 1163. As to two of the directed verdict defendants, the plaintiff failed to demonstrate any exposure to their products. Id. at 1163-64. With regard to the other defendant, the plaintiff testified he was exposed to an asbestos-containing pipe covering on ten to fifteen occasions of between one and eight hours’ duration during the term of his employment, but the court concluded that this exposure was insufficient to infer that it was a substantial factor in causing his asbestosis. Id. at 1163.
The Lohrmann test has also been applied in mesothelioma cases. In Gregg v. V-J Auto Parts, Inc.,
Because this test balances the rights and interests of the manufacturers with those of the claimants, we conclude that it is the appropriate test for use in this state. Like Maryland, Nevada relies on the substantial factor test of the Restatement (Second) of Torts § 431 to determine legal causation, otherwise known as proximate causation. See Lohrmann,
Sufficiency of the evidence relating to Holcomb ’s mesothelioma
We next address whether, under the Lohrmann test, appellants submitted sufficient
Where, as here, there is more than one supplier of the asbestos-containing products, the injured party must prove that exposure to the products made or sold by that particular defendant was a substantial factor in causing the injury. See County of Clark v. Upchurch,
In addressing the overriding issue of whether appellants adequately established sufficient exposure to each of the respondents’ asbestos-containing products such that the exposure was a substantial factor in Holcomb contracting mesothelioma, we first address the standard for finding that a respondent’s product caused Holcomb’s mesothelioma.
The medical testimony presented by appellants was undisputed. Appellants established that cumulative exposures to asbestos above the background level in ambient air increase the total exposure, and cumulative exposure increases the risk of developing mesothe-lioma. Because of this, and the fact that each exposure shortens the average latency period for the appearance of mesothelioma, the testimony provided that all significant exposures contribute to the causation of mesothelioma. Thus, de minimis exposures are insufficient to prove that the exposure was a substantial factor in causing mesothelioma.
To defeat summary judgment and bring the issue of exposure to a jury, a plaintiff is required to show more than speculation or possibility that the product caused the injury. See Tragarz v. Keene Corp.,
Holcomb’s testimony and other evidence
Appellants argue that they demonstrated triable issues of fact regarding whether Holcomb was exposed regularly and frequently to asbestos in respondents’ products. They assert that this was shown by Holcomb’s deposition testimony that he inhaled dust from the joint-compound products manufactured by respondents during his years of construction work in Florida and Nevada between 1969 and 1976. Appellants also argue that once they demonstrated evidence of Holcomb’s more-than-minimal exposure to respondents’ products, the specificity of his testimony—whether Holcomb recalled specific jobsites, purchased the products himself, or remembered specific logos or lettering—are issues that go merely to the weight of his testimony and thus are appropriate for consideration by the trier of fact, not by the court on a summary judgment motion.
Respondents assert that, when compared to his testimony regarding his work with brake products, Holcomb’s generalized and vague testimony regarding occasional work with joint-compound products failed to demonstrate a reasonable inference that those products, and the specific product of any individual manufacturer, caused his mesothelioma. They point out that Holcomb could not identify any particular Kaiser Gypsum or Georgia Pacific product that he used; could not describe the products’ labels, packaging, or markings; and could not recall how often during his work in construction that he used any particular product. Respondents contend that Holcomb could not identify whether the products that he used actually contained asbestos. Except with respect to Union Carbide, we disagree that summary judgment was warranted on this basis.
Holcomb’s testimony regarding Kelly-Moore, Kaiser Gypsum, and Georgia Pacific products
Holcomb testified that he used Kelly-Moore, Kaiser Gypsum, and Georgia Pacific products on numerous occasions and in several locations over an approximately seven-year period, interrupted only by a short stint in the military. While he could not identify the particular packaging, logos, or names of some of the products, and he could not identify specific locations and jobs on which he used the products 40 years ago, that level of identification is not required. Ultimately, his testimony and other evidence provide the basis for a reasonable inference that Holcomb’s mesothelioma was caused by exposure to each of the respondents’ products.
Preliminarily, Holcomb presented evidence that asbestos-containing joint compounds, when used in the ordinary and customary ways, regularly gave rise to significant amounts of asbestos in the air. Thus, the joint-compound user and those around him directly breathed in the asbestos-laden dust. Because Holcomb testified to using these products in ways that caused him to inhale asbestos contained therein, the proximity prong is met with regard to each instance of exposure.
Kelly-Moore
Holcomb presented evidence that he used Kelly-Moore’s Paco joint-compound brand, including Paco Quik-Set, in Florida and Las Vegas. Respondents can point to no undisputed evidence that Paco products were not available in Florida or Las Vegas during the relevant time. All of Kelly-Moore’s Paco joint compounds contained asbestos through 1976 or 1978; thus any failure to identify a particular Paco product is not dispositive. While respondents point out that one or even a few exposures is not enough, Holcomb stated that he used Kelly-Moore’s Paco products numerous times throughout the period. This is more than a minimal amount and, when
Kaiser Gypsum
When viewed in the light most favorable to Holcomb, the evidence of Holcomb’s exposure to Kaiser Gypsum’s products supports a finding that those products were a substantial factor in causing Holcomb’s mesothelioma. This evidence was legally sufficient to permit a jury to infer proximate cause. Holcomb testified that he was accustomed to using Kaiser Gypsum’s products throughout his years in both Florida and Las Vegas. Holcomb testified that he used Kaiser Gypsum’s products “on several jobs, lots and lots.” While Holcomb could identify only the manufacturer, Kaiser Gypsum, and not any of Kaiser Gypsum’s drywall products, most of Holcomb’s alleged use of Kaiser Gypsum products pre-dated Kaiser Gypsum’s introduction of a non-asbestos formula in 1974. Thus, any Kaiser Gypsum products that Holcomb used prior to 1974 necessarily contained asbestos. Holcomb only needed to show sufficient evidence of probable exposure, and he remembered seeing the Kaiser Gypsum brand name on the labels. Putting this into context with the medical evidence that minimal dosages of asbestos can contribute to mesothelioma and the more relaxed nature of the test in mesothelioma cases, Gregg,
Georgia Pacific
Holcomb testified that he used Georgia Pacific brand joint-compound products on countless jobsites in Florida and Las Vegas and was “accustomed to using” Georgia Pacific products. Holcomb recalled seeing the Georgia Pacific name on bags, recalled using Georgia Pacific products “a lot,” “many times,” and remembered using Georgia Pacific products when working at the motel. Holcomb identified the Georgia Pacific brand joint compound as one he often used between 1969 and 1973 in Florida and 1975 and 1978 in Las Vegas. All Georgia Pacific joint compound contained asbestos from 1956 to 1974. Georgia Pacific began making non-asbestos joint compound in 1972 or 1973. Though Holcomb could not state whether the Georgia Pacific joint compound he used while in Las Vegas contained asbestos, he sufficiently raised issues of material fact concerning his use of Georgia Pacific joint compound from 1969 to 1974. Because Holcomb was only required to show “an inference of probable exposure to the defendant’s asbestos product,” Tragarz v. Keene Corp.,
Union Carbide
Holcomb established that the Kelly-Moore, Kaiser Gypsum, and Georgia Pacific products he may have regularly and frequently used contained asbestos, and therefore summary judgment was not appropriate as to those defendants. Summary judgment was warranted, however, as to Union Carbide. Appellants argue that given the thousands of tons of asbestos that Union Carbide supplied to these three manufacturers in the pertinent time frame, triable issues of fact exist regarding the presence of Union Carbide fibers in the joint compounds used by Holcomb. Union Carbide contends that summary judgment was appropriate because appellants did not carry their burden to show that Union Carbide asbestos was actually in any product allegedly used by Holcomb.
CONCLUSION
In order to ensure protection for both asbestos manufacturers and consumers injured by asbestos exposure, we adopt the test set forth in Lohrmann v. Pittsburgh Corning Corp.,
Notes
Bondex and its related companies were dismissed from this appeal pursuant to an automatic bankruptcy stay.
Kelly-Moore, Kaiser Gypsum, and Georgia Pacific are manufacturers of asbestos-containing products, while Union Carbide supplied and sold the asbestos to these manufacturers.
Respondents Kelly-Moore, Kaiser Gypsum, and Georgia Pacific object to Holcomb’s use of Dr. Holstein’s expert report, asserting that it would have been inadmissible at trial and therefore could not be considered by the district court. However, as the report was provided to the district court and this issue was not raised below, it will not be considered on appeal. See Diamond Enters., Inc. v. Lau,
Trial as to the automotive-brake defendants was stayed pending the outcome of this appeal.
See David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook. L. Rev. 51, 51 (2008) (“[T]o prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused lis injury.” (emphasis omitted)); Anthony Z. Roisman, Martha L. Judy & Daniel Stein, Preserving Justice: Defending Toxic Tort Litigation, 15 Fordham Envtl. L. Rev. 191, 202 (2004) (“Irrespective of the nature of the cause of action alleged, at root all toxic tort cases require the same basic evidence. A toxic substance must be released from some product or property, the plaintiff and/or his property must be exposed to the toxic substance in some way, and that exposure must be a substantial cause of a present injury which plaintiff has suffered for which damages are recoverable. Of all these elements the two which have proven the most troublesome are exposure and causation.”).
The three approaches discussed in this opinion are not exhaustive. Other jurisdictions have adopted modified standards. See, e.g., Ingram v. ACandS, Inc.,
The Rutherford court did not “endorse any one particular standard for establishing the requisite exposure to a defendant’s asbestos products.”
Although the Texas Supreme Court looked to Rutherford, it is not clear that it agreed with the California court’s designation of the substantial factor standard as “broad” when determining causation in asbestos cases. See 3 David L. Faigman, et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 26:5 (2011).
It appears generally accepted that asbestosis typically results from long-term, high-level exposure to asbestos or relatively brief exposure to extremely high levels of asbestos. See CSX Transp., Inc. v. Hensley,
While the parties agree that medical causation is not at issue in this case, it is necessarily intertwined with the determination of whether any of the exposures were a substantial factor in the contraction of the disease.
On appeal, Union Carbide abandons its argument that it was entitled to a sophisticated-user defense. It instead argues, for the first time on appeal, that it is entitled to a bulk supplier defense, as it was a seller of raw materials to third-party manufacturers whom it warned. Additionally, the district court did not rule on appellants’ claims against Union Carbide for false representation or intentional failure to warn, and those claims are not appealed here. Because we conclude that summary judgment was properly granted in Union Carbide’s favor, these issues are rendered moot by the resolution of this appeal.
Respondents challenge the use of interrogatory evidence from other cases on the grounds that the evidence was not properly disclosed and the cases are separate and unrelated. However, as the use of this evidence is unnecessary to the resolution of this appeal, this contention will not be discussed further. Further, any argument concerning the use of depositions raised in the reply brief will not be considered by this court. City of Elko v. Zillich,
Appellants cite Betsinger v. D.R. Horton, Inc.,