# Horton v. Harwick Chemical Corp.

> Ohio Supreme Court · September 13, 1995 · 73 Ohio St. 3d 679

URL: https://www.frixlaw.com/law-library/cases/6772314

## Case

- **Full name:** Horton v. Harwick Chemical Corporation A.W. Chesterton, Appellees Derrick v. John Crane, Inc.
- **Court:** Ohio Supreme Court
- **Decided:** September 13, 1995
- **Citations:** 73 Ohio St. 3d 679
- **Precedential status:** Published
- **Opinion:** Concurring in part by Weight
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Sweeney, Weight, Wright
- **Cited by:** 602 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Weight, J.,
concurring in part and dissenting in part. I quite agree with the majority’s rejection of the theory of alternative liability in this case and join paragraphs one, three and four of the syllabus. However, I vigorously disagree with its treatment of the court of appeals’ opinion and its rejection of the “frequency-proximity” test adopted in the leading case of Lohrmann v. Pittsburgh Corning Corp. (C.A.4, 1986), 782 F.2d 1156 , which has been embraced in practically every other jurisdiction which has reviewed asbestos cases. 1
The majority and the appellants apparently accept the proposition that “the plaintiff has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing plaintiffs injury.” (Paragraph one of the syllabus.) The majority goes on to state, “[W]e decline to establish a formulaic approach in an area which defies that kind of analysis,” and rejects Lohrmann . What the majority has done is to adopt no test whatsoever and in the process relegate Pang v. Minch (1990), 53 Ohio St.3d 186 , 559 N.E.2d 1313 , and Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40 , 514 N.E.2d 691 , to meaningless pronouncements. The majority appears to adopt what, for lack of a better term, could be described as the “fiber drift theory,” which, in essence, states that if there is some evidence that a defendant’s product was *692 located in or near or somewhere in the vicinity of the place where plaintiff worked then there is potential liability, despite the total absence of a showing of plaintiff’s proximity to those products or evidence as to the frequency of the exposures. I have no quarrel with the notion that asbestos particles have the ability to “take flight” and “sail” into the air. Appellant’s expert indicates that such particles might be released in one corner of a plant and travel by way of drafts and air currents throughout the immediate vicinity of a workplace. However, what is lacking here is any evidence suggesting that any of defendantappellees’ products were a substantial factor in causing the appellants’ iiyuries. I think it goes without saying that under Ohio law, to get past a summary judgment a plaintiff must present evidence creating a probability, not a mere possibility, of a causal relationship between a defendant’s conduct or product and the alleged harm. Is there sufficient evidence here to create a jury question where the plaintiffs merely show that there was a possibility that they may have been exposed to the defendants’ products where they worked? Perhaps, but I suggest that the plaintiffs must present evidence that would tend to show the circumstances of the exposure, including some idea as to the time, place, and manner in which the product was used and where the plaintiff was in relation to the product. The Second District Court of Appeals did just this and concluded that there was no evidence other than speculation to support the posture of appellants.
Civ.R. 56, which deals with summary judgment, and our various decisions dealing with it place the trial court in the posture of a gatekeeper, whose role is to take from the jury’s province cases which fail to achieve a certain minimum amount of evidentiary proof. This case is surely one that fails the test. Due to the majority’s brevity in reviewing the facts, I feel that I should excerpt a portion of the court of appeals’ opinion which analyzes the law as it relates to the facts. In its opinion in Horton (Nov. 23, 1993), Montgomery App. No. 13872, unreported, at 4-5, 1993 WL 485266 , the court of appeals correctly noted that in Lohrmann , the Fourth Circuit required “a plaintiff to introduce evidence which would allow the jury to reasonably conclude that the conduct of the defendant was a substantial factor in causing the plaintiff’s harm. Id. [Lohrmann, 782 F.2d] at 1162. That requirement was derived from the Restatement (Second) of Torts § 431, which defines what constitutes legal cause. Lohrmann held that simply showing that asbestos-containing products were present in a large workplace while the plaintiff worked there is not sufficient to meet the ‘substantial factor’ test because it does not prove that the plaintiff was exposed to the asbestos-containing products. Id. Rather, the plaintiff must present evidence to show the frequency of the use of the product and the regularity of the plaintiff’s employment in proximity thereto. Id. ”
*693 The court of appeals properly stated, “The frequency-proximity test * * * is not a test which is distinct from the substantial factor standard; rather, it is a tool to enable a court to determine whether the plaintiff in an asbestos case has put forth sufficient evidence against a defendant to show that a reasonable jury could find that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. * * *
“ * * * The frequency-proximity test does not require any greater showing than the substantial factor standard; rather, the test determines when the plaintiff has met his burden under that standard.” Id. at 6-7.
As noted by the court of appeals, “The basis for this assignment of error is an affidavit filed by the Hortons explaining the fiber drift theory as it relates to DTR. Dr. Kenneth Cohen made the affidavit after an inspection of DTR conducted in 1989. DTR closed a few weeks after Mr. Horton retired in 1980, so inferably the plant was in substantially the same condition at the time of the inspection as it was when he still worked there. Dr. Cohen is a recognized expert in industrial hygiene. The fiber drift theory holds that asbestos fibers can become airborne and drift away from their original source. Through repeated disturbances by such forces as air currents or vibrations, these ‘aerodynamically active fibers and particles’ can be transported throughout the plant. Based on this theory, Dr. Cohen states that ‘[a]ny worker whose workplace was within the Dayton Tire and Rubber Company plant was an asbestos and talc breather if asbestos and talc fibers and particles were released within the confines of this facility. The plaintiff workers who worked inside of this facility during use, installation, damage to, repair, or removal of asbestos-containing and talc-containing products during their employment more probably than not suffered substantial occupational exposure to asbestos and talc fibers and particles by breathing them into their lungs * * *.’
“Dr. Cohen does not confirm that any asbestos or talc fibers were ever released in DTR. He does not name any manufacturers of any asbestos or talc present within the plant. He refers to all workers inside of the facility, but he does not account for the fact that there was more than one building in the DTR plant. In oral argument, counsel for the Hortons conceded that the fibers would only drift within the contained structures where the asbestos was located.” (Emphasis added.) Id. at 7-8.
For the foregoing reasons, I would affirm the judgment of the court of appeals.
Cook, J., concurs in the foregoing opinion.
. See, e.g., Jackson v. Anchor Packing Co. (C.A.8, 1993), 994 F.2d 1295 ; Tragarz v. Keene Corp. (C.A.7, 1992), 980 F.2d 411 ; Robertson v. Allied Signal, Inc. (C.A.3, 1990), 914 F.2d 360 ; Menne v. Celotex Corp. (C.A.10, 1988), 861 F.2d 1453 ; Blackston v. Shook & Fletcher Insulation Co. (C.A.11, 1985), 764 F.2d 1480 ; Spaur v. Owens-Coming Fiberglas Corp. (Iowa 1994), 510 N.W.2d 854 ; Sholtis v. Am. Cyanamid Co. (1989), 238 N.J.Super. 8 , 568 A.2d 1196 ; Eckenrod v. GAF Corp. (1988), 375 Pa.Super. 187 , 544 A.2d 50 ; Lockwood v. AC & S, Inc. (1987), 109 Wash.2d 235 , 744 P.2d 605 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6772314. Public record. Not legal advice.