Richards v. Copes-Vulcan, Inc., et al.Annotate this Case
Ohio residents Craig Richards and his wife Gloria filed suit against defendants in the Delaware, claiming that Mr. Richards’ exposure to asbestos-containing products at home and in the workplace caused his mesothelioma. The parties agreed that Ohio law applied to this case. To make the causal link between Mr. Richards’ asbestos exposure and his disease, the Richards served an expert report relying on a cumulative exposure theory, meaning that every non-minimal exposure to asbestos attributable to each defendant combined to cause Mr. Richards’ injury. After the Richards served their expert report, the Ohio Supreme Court decided Schwartz v. Honeywell International, Inc. , 102 N.E.3d 477 (Ohio 2018). In Schwartz, the Ohio Supreme Court rejected an expert’s cumulative exposure theory for a number of reasons, including its inconsistency with an Ohio asbestos causation statute. The Richards’ attorneys became aware of the Schwartz decision during summary judgment briefing. Instead of asking for leave to serve a supplemental expert report based on another theory of causation, the Richards argued in opposition to summary judgment that the Ohio asbestos causation statute and the Schwartz decision did not require any expert report. According to the Richards, as long as there was factual evidence in the record showing, in the words of the Ohio statute, the manner, proximity, frequency, and length of exposure to asbestos, summary judgment should have been denied. The Superior Court disagreed and held that, to defeat summary judgment, the Richards had to still offer expert medical evidence of specific causation, meaning that the asbestos exposure attributable to each defendant caused Mr. Richards’ mesothelioma. The Superior Court also denied reargument and found untimely the Richards’ later attempt to supplement their expert report. The Richards appealed the Superior Court’s dismissal rulings, arguing that the court misinterpreted Ohio law, and should have granted them leave to supplement their expert report after the court’s summary judgment rulings. As the Delaware Supreme Court read the Ohio asbestos causation statute and Ohio Supreme Court precedent, neither the Ohio General Assembly nor the Court intended to abrogate the general rule in Ohio in toxic tort cases that a plaintiff must provide expert medical evidence “(1) that the toxin is capable of causing the medical condition or ailment (general causation), and (2) that the toxic substance in fact caused the claimant’s medical condition (specific causation).” Thus, the Supreme Court determined the Superior Court correctly concluded expert medical evidence on specific causation had to be offered by the Richards to avoid summary judgment. The Superior Court also did not abuse its discretion in denying reargument and the Richards’ request to supplement their expert report after the court’s summary judgment ruling.