This week the OMA filed an amicus brief with the Supreme Court of Ohio that asks the high court to consider a lower court decision that is detrimental to asbestos injury defense.
The issue that the amicus brief will ask the Ohio Supreme Court to take up deals with what constitutes a “substantial factor” in the context of asbestos related litigation. Plaintiff-Appellee relied on what is commonly referred to as the “each and every fiber theory of liability” or cumulative exposure liability, which goes to the element of substantial contributing factor in tort cases. Under this theory the plaintiffs’ medical experts argue that every exposure to asbestos is significant since it adds to the cumulative exposure, which is what causes mesothelioma (or any other asbestos related disease).
Ohio Revised Code 2307.96 defines what constitutes a substantial factor and it was added to the revised Code so that plaintiffs cannot keep defendant manufacturers in a case if they assert only a brief, insignificant exposure to asbestos from that manufacturer’s product. The courts in Ohio have been ignoring that issue and holding manufacturers in cases even for brief insignificant claimed exposures.
The “each and every fiber theory of liability” and what is required to be a substantial contributing factor in causing a disease is being litigated across the country and not just in Ohio. The issue also has implications in many areas outside asbestos litigation such as chemical exposures, radiation exposures, ingestion of food additives, etc. 9/22/2016