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Nevada Supreme Court Upholds Right of Mesothelioma Victims

Across the US the battle rages on in mesothelioma lawsuits as to what level of proof is required for a mesothelioma plaintiff to get to trial. In the following landmark case, the Nevada Supreme Court sided with th e plaintiffs and for good reason.
128 Nev., Advance Opinion 5i.tJ
No. 56510
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Appeal from a district court summary judgment, certified as
final under NRCP 54(b), in a torts action. Eighth Judicial District Court,
Clark County; Douglas W. Herndon, Judge.
Affirmed in part, reversed in part, and· remanded.
Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas; Waters,
Kraus & Paul and Paul C. Cook, EI Segundo, California,
for Appellants.
Troy E. Peyton, P.C., and Troy E. Peyton, Las Vegas; Baker & Hostetler,
LLP, and Mary Price Birk, Denver; Colorado,
for Respondent Union Carbide Corporation.
Lewis & Roca, LLP, and Daniel F. Polsenberg, Las Vegas,
for Respondents Georgia Pacific, LLC; Kaiser Gypsum Company, Inc.; and
Kelly-Moore Paint Company, Inc.
~ 1395
By the Court, CHERRY, C.J.:
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., 782 F.2d 1156 (4th Cir. 1986), as that test is explained in Gregg v.
V-J Auto Parts, Inc., 943 A.2d 216,225 (Pa. 2007), for mesothelioma cases.
Under the Lohrmann test, the plaintiff is required to prove exposure to the.
defendant’s product “on a regular basis over some extended period of time”
and “in proximity to where the plaintiff actually worked,” such that it is
probable, or reasonable to infer, that the exposure caused the
mesothelioma. Lohrmann, 782 F.2d at 1162-63.
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, Inco; and Georgia Pacific, LLC, but not as to
respondent Union Carbide Corporation. Accordingly, we affirm the
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summary judgment in Union Carbide’s favor but reverse the summary
judgment as to the remaining respondents.
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;l Kelly-Moore; Kaiser Gypsum; and Georgia Pacific,
asbestos supplier Union Carbide,2 and various automotive brake product
manufacturers, distributers, and sellers. They alleged that Holcomb’s
mesothelioma was caused by exposure to asbestos contained in those
parties’ products, which Holcomb used for several years while working as
a construction laborer and as an automotive mechanic. The personal
injury complaint sounded in negligence and strict products liability, and it
included a claim for loss of consortium. Mter Holcomb died in December
2008, the complaint was amended to include a wrongful death claim by
Tamara Holcomb, individually and as the representative of Randy
Holcomb’s estate, and by their children, appellants Billy Joe Holcomb,
Joseph Holcomb, Shelly Holcomb, and Kelly Miller.
lBondex and its related companies were dismissed from this appeal
pursuant to an automatic bankruptcy stay.
2Kelly-Moore, Kaiser Gypsum, and Georgia Pacific are
manufacturers of asbestos-containing products, while Union Carbide
supplied and sold the asbestos to these manufacturers.
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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 drywall 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 Bondex, Paco,
and Paco Quik-Set (manufactured by Kelly-Moore), Kaiser Gypsum, and
Georgia Pacific brands of joint compound. He recalled using these brands
within the first three years of moving to Las Vegas. Although Holcomb
remembered using the identified joint-compound product brands while in
Florida and Nevada, he did not recall using any particular product on any
particular job or at any particular time, and he could not identify in
concrete terms how often his construction duties encompassed sheetrock
and drywall work. However, he had specific memories of using all ofthe
named product brands on a regular basis.
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
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which he breathed. Holcomb asserted that these repeated exposures to
the brake and joint-compound products caused his mesothelioma later in
Causation evidence
Appellants presented testimony and a letter from pathologist
Dr. Ronald Gordon, Ph.D., in which he con
cluded 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
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.3 Dr. Holstein’s
report explained that Holcomb’s work with asbestos-containing joint
compounds and brake components caused asbestos to be released into the
air, which Holcomb then breathed in. Dr. Holstein stated that Holcomb’s
resulting exposures to joint-compound and automotive-friction products
acted cumulatively to cause his mesothelioma. He opined that “each and
every exposure to asbestos increases the total exposure and that the
3Respondents 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, 113 Nev. 1376,
1378, 951 P.2d 73, 74 (1997) (stating that “[i]t is well established that
arguments raised for the first time on appeal need not be considered by
this court”).
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progressively increasing cumulative exposure increases the risk of
developing an asbestos-related disease, including mesothelioma.” He
further opined that “the best scientific evidence is that all significant
exposures contribute to the causation of a subsequent mesothelioma.” Dr.
Holstein explained that ‘joint compounds and brakes, when worked with
in the ordinary and customary ways, regularly gave rise to significant
amounts of asbestos dust in the air,” and that the types of asbestos fibers
used in joint compound and brakes cause mesothelioma. Dr. Holstein
summarized his causation opInIons by stating that Holcomb’s
mesothelioma was caused by exposure to asbestos in joint-compound and
automotive-friction products.
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 evidence of exposure to asbestos in the
brake products to take. the case to a jury.
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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., 782
F.2d 1156 (4th Cir. 1986), and a California Supreme Court decision,
Rutherford v. Owens-Illinois. Inc., 941 P.2d 1203 (Cal. 1997). Ultimately,
with regard to the joint-compound defendants, the district court
determined that under any standard, Holcomb had not provided enough
information regarding his use of asbestos-containing joint compound to
proceed with the claims. The district court subsequently certified its
orders granting summary judgment to the joint-compound defendants as
final, pursuant to NRCP 54(b), and appellants appealed.4
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, 127 Nev. _, _, 262 P.3d 705, 714 (2011).
Summary judgment is proper only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
law.” NRCP 56(c). “A factual dispute is genuine when the evidence is
such that a rational trier of fact could return a verdict for the nonmoving
party.” Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031
(2005). When deciding a summary judgment motion, all evidence must be
4Trial as to the automotive-brake defendants was stayed pending
the outcome of this appeal.
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viewed in a light most favorable to the nonmoving party. Id. at 729, 1026
P.3d at 1031.
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 particularjoint-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.5 See Klasch v. Walgreen Co., 127 Nev. _, _,
5See David E. Bernstein, Getting to Causation in Toxic Tort Cases,
74 Brook. L. Rev. 51, 51 (2008) (“[TJo 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 his 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
continued on next page…
_____–II ~—- –
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264 P.3d 1155, 1158 (2011) (plaintiff bears burden to establish causation
as an element of negligence); Rivera v. Philip Morris, Inc., 125 Nev. 185,
191, 209 P.3d 271,275 (2009) (plaintiff bears burden to prove causation in
products liability cases); Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203,
1214 (Cal. 1997) (“Most asbestos personal injury actions are tried on a
products liability theory.”). Holcomb alleged asbestos exposure from
multiple sources. While medical causation is not at issue here, app~llants
must demonstrate that a particular defendant sufficiently exposed
Holcomb to asbestos in order to establish adequate causation to hold that
defendant liable.. Thus, we necessarily consider the exposure causation
standard by which these types of cases will be evaluated in Nevada.
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 defehdant’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 .
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.”).
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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, 493 F.2d
1076 (5th Cir. 1973), the first successful asbestos case, courts have
struggled to evaluate causation in a manner to best process asbestos
claims, especially those that allege “uncertain, modest, or very small”
exposure. Joseph Sanders, Michael D. Green & William C. Powers, Jr.,
The Insubstantiality of the “Substantial· Factor” Test for Causation, 73
Mo. L. Rev. 399, 402 (2008). As a result, “the precise requirements of
proof of causation vary from state to state.” James L. Stengel, The
Asbestos End-Game, 62 N.Y.U. Ann. Surv. Am. L. 223, 237 (2006).
Nevada has not articulated any particular causation standard
In asbestos cases for determining whether a plaintiffs 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:6 (1) the California Supreme Court’s “exposure-torisk”
test of Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1206 (Cal.
1997); (2) the Texas Supreme Court’s “defendant-specific-dosage-plus-
6The three approaches discussed in this opinion are not exhaustive.
Other jurisdictions have adopted modified standards. See, e.g., Ingramv.
ACandS, Inc., 977 F.2d 1332, 1344 (9th Cir. 1992) (adopting a standard
that requires the asbestos product to play “a role in the occurrence of the
plaintiffs injuries”); In re Hawaii Federal Asbestos Cases, 960 F.2d 806,
818 (9th Cir. 1992) (employing the “inference of exposure” test); Blackston
v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir. 1985)
(“requir[ingJ the plaintiff to show that he was exposed to [aJ defendant’s
asbestos-containing product by working with or in close proximity to the
product”). We believe, however, that the three approaches discussed are
the most widely recognized causation standards in asbestos cases.
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substantial-factor” test in Borg-Warner Corp. v. Flores, 232 S.W.3d 765,
773 (Tex. 2007); and (3) the Fourth Circuit’s “frequency, regularity,
proximity” test set forth in Lohrmann v. Pittsburgh Corning Corp., 782
F.2d 1156, 1163 (4th Cir. 1986).
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 plaintiffs [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.” 941 P.2d at 1219 (first emphasis
added) (footnote omitted). While the court did not reduce “substantial
factor” to a formulaic calculation,7 id. at 1214 (“The term ‘substantial
factor’ has not been judicially defined with specificity, and indeed it has
been observed that it is neither possible nor desirable to reduce it to any
lower terms.” (internal quotations omitted)), the court held that the
7The Rutherford court did not “endorse anyone particular standard
for establishing the requisite exposure to a defendant’s asbestos products.”
941 P.2d at 1223 n.12 (emphasis omitted).
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plaintiff need not demonstrate that “fibers from the defendant’s particular
product were the ones, or among the ones, that actually produced the
[asbestos-related disease].” Id. at 1219 (emphasis omitted). Further, the
court recognized that “[tlhe substantial factor standard is a relatively
broad one, requiring only that the contribution of the individual cause be
more than negligible or theoretical.” Id. at 1220.
The Rutherford test “treat[sl every non-negligible exposure to
risk as a factual cause.” Jane Stapleton, The Two Explosive Proof-ofCausation
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 oli 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
used 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, 232 S.W.3d 765, 773 (Tex. 2007). In Flores, the plaintiff mechanic
sued a brake-pad manufacturer, alleging that he suffered from asbestosis
caused by working with the manufacturer’s brake product “on five to seven
of the roughly twenty brake jobs he performed each week” for three of the
nearly 40 years that he worked with brakes. Id. at 766. A doctor testified
.that the plaintiff could have been exposed to “‘some’ respirable fibers”
during his years of brake work. Id. at 774. The jury found that the
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plaintiff sustained an asbestos-related disease and that the brake-pad
manufacturer’s negligence proximately caused that disease. Id. at 768.
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, 941 P.2d at 1219). Nonetheless, the
court believed that merely showing regular exposure to “some” unspecified
quantity of asbestos “is necessary but not sufficient, as it provides none of
the quantitative information necessary to support causation under Texas
law.” Id. at 772. Thus, the court relied in part on the Rutherford test in
requiring the plaintiffto present not only evidence of regular exposure but
also “[d]efendant-specific evidence relating to the approximate dose to
which the plaintiff was exposed, coupled with evidence that the dose was a
substantial factor in causing the asbestos-related disease.” Id. at 773. In
thereby recognizing that asbestosis is a dose-related disease, the Texas
Supreme Court reversed the judgment, holding that the plaintiff failed to
present sufficient evidence of causation concerning the plaintiffs exposure
to asbestos in the manufacturer’s product, including the extent and
intensity of the plaintiffs exposure to disease-causing asbestos fibers, such
as “the approximate quantum of fibers to which [he] was exposed.” Id. at
774; see id. at 771-74.8
8Although 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
continued on next page…
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We conclude that in protecting the manufacturer, the Flores
causation test swings too far beyond Rutherford to the point where it
overburdens the claimant, who might not be able to sufficiently
demonstrate not only the dosage quantity of exposure to a particular
defendant’s product but also the total asbestos dosage to which he was
exposed. We conclude that the Flores application of the “substantial
factor” test is too stringent. Id. at 773.
Instead, we are persuaded by the Lohrmann v. Pittsburgh
Corning Corp., 782 F.2d 1156 (4th Cir. 1986), “frequency, regularity,
proximity” test, as applied in mesothelioma cases. See Gregg v. V-J Auto
Parts, Inc., 943 A.2d 216, 217 (Pa. 2007). “The majority of the federal
circuits and state courts addressing this question have chosen to apply the
Lohrmann test to determine whether the plaintiff has satisfied his burden
of showing that a specific defendant’s products caused his disease.”
Charles T. Greene, Determining Liability in Asbestos Cases: The Battle to
Assign Liability Decades After Exposure, 31 Am. J. Trial Advoc. 571, 572
(2008); see Slaughterv. Southern Talc. Co., 949 F.2d 167, 171 n.3 (5th Cir.
1991) (most federal circuit courts and state courts, including “Michigan,
Massachusetts, New Jersey, Illinois, Pennsylvania, Maryland, Nebraska,
and Oklahoma have adopted the test”); see, e.g., Chism v. W.R. Grace &
Co., 158 F.3d 988, 992 (8th Cir. 1998); Shetterly v. Raymark Industries,
Inc., 117 F.3d 776, 780 (4th Cir. 1997); Dillon v. Fibreboard Corp., 919
F.2d 1488, 1491-92 (10th Cir. 1990); Robertson v. Allied Signal, Inc., 914
asbestos cases. See 3 David L. Faigman, et al., Modern Scientific
Evidence: The Law and Science of Expert Testimony § 26:5 (2011).
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F.2d 360, 380 (3d Cir. 1990); Hyde v. Owens-Corning Fiberglas Corp., 751
F. Supp. 832, 833 (D. Ariz. 1990); Chavers v. General Motors Corp., 79
S.W.3d 361, 367 (Ark. 2002); Gorman-Rupp Co. v. Hall, 908 So. 2d 749,
757 (Miss. 2005). The Lohrmann causation standard has also been
adopted by statute in Florida, Georgia, and Ohio. See David E.. Bernstein,
Gettingto Causation in Toxic Tort Cases, 74 Brook. L. Rev. 51, 55-56 n.16
The plaintiff in Lohrmann was a pipefitter at a shipyard in
Baltimore, Maryland, for nearly 40 years. 782 F.2d at 1158. He brought
suit in negligence and strict liability against 19 defendants, alleging that
he had asbestosis resulting from exposure to defendants’ asbestoscontaining
products during his employment. Id. At the conclusion of trial,
the district court granted a directed verdict in favor of three of the
defendants, finding that “there was insufficient evidence to show the
necessary element of causation between use of[the defendants’] products
and [the plaintiff’s] claim of asbestosis.” Id. at 1161-62. The plaintiff
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., 568 .
A.2d 1196, 1207 (N.J. Super. Ct. App. Div. 1989) (stating that the
Lohrmann test “is a fair balance between the needs of plaintiffs
(recognizing the difficulty of proving contact) and defendants (protecting
against liability predicated on guesswork)”). The court held that when a
plaintiff alleges multiple sources of exposure to asbestos, the plaintiff is
required to prove exposure to a “specific product” attributable to the
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defendant, “on a regular basis over some extended period of time” and “in
proximity to where the plaintiff actually worked,” such that it is probable,
or reasonable to infer, that the exposure to the defendant’s products
caused plaintiffs injuries. Lohrmann, 782 F.2d at 1162-63; see Chavers,
79 S.W.3d at 369 (adopting the “frequency, regularity,proximity” test ina
mesothelioma case). The court provided that “this is a de minimis rule
since a plaintiff must prove more than a casual or minimum contact with
the product.” Lohrmann, 782 F.2d at 1162. In addition, the court noted
that “[t]his is a reasonable rule when one considers the Maryland law of
substantial causation and the unusual nature o
f the asbestosis disease
process, which can take years of exposure to produce the disease.” Id.
Furthermore, the court stated, “mere proof that the plaintiff and a certain
asbestos product are at the shipyard at the same time, without more, does
not prove exposure to that product.” Id.
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
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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., 943 A.2d 216, 225 (Pa. 2007), the
Pennsylvania Supreme Court, citing Tragarz v. Keene Corp., 980 F.2d
411, 420 (7th Cir. 1992), explained that the Lohrmann test provides
helpful evaluative guidance in distinguishing cases in which the plaintiff
can demonstrate that the defendant’s product likely caused his injury from
those in which he cannot so show due to minimal exposure to the
defendant’s product, but it is not “a rigid standard with an absolute
threshold necessary to support liability.” The Pennsylvania court
recognized that the Lohrmann factors should be “tailored to the facts and
circumstances of the case.” Gregg, 943 A.2d at 225. Noting that the
plaintiffs expert had explained that, unlike asbestosis, mesothelioma can
result from low doses of asbestos,9 the court reasoned that “the frequency
and regularity prongs become somewhat less cumbersome” in such cases.
Id. (internal quotations omitted). In conclusion, the Pennsylvania
Supreme Court held that, at the summary judgment phase, courts must
9It 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, 556
U.S. 838, 839 (2009); Continental Cas. Co. v. Employers Ins. Co., 871
N.Y.S.2d 48,61 (App. Div. 2008); Borg-Warner Corp. v. Flores, 232 S.W.3d
765, 771 (Tex. 2007); Zimko v. American Cyanamid, 905 So. 2d 465, 484
n.21 (La. Ct. App. 2005). On the other hand, as appellants’ expert testified
in this case, mesothelioma is a signature asbestos disease that can be
contracted from low doses of asbestos exposure. See Flores, 232 S.W.3d at
771; Zimko, 905 So. 2d at 484n.21; In re Asbestos Products Liability
Litigation, No. MDL-875, 2012 WL 760739, at *5 (E.D. Pa. Feb. 17,2012).
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“make a reasoned assessment concerning whether, in light of the evidence
concerning frequency, regularity, and proximity of a plaintiffs/decedent’s
asserted exposure, a jury would be entitled to make the necessary
inference of a sufficient causal connection between the defendant’s product
and the asserted injury.” Id. at 227.
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, 782 F.2d at 1162; County of Clark v. Upchurch, 114 Nev. 749,
759, 961 P.2d 754, 760-61 (1998); see also Wyeth v. Rowatt, 126 Nev. _,
_, 244 P.3d 765, 778 (2010) (stating that “substantial-factor
causation … is appropriate when ‘an injury may have had two causes,
either of which, operating alone, would have been sufficient to cause the
injury'” (quoting Johnson v. Egtedar, 112 Nev. 428, 435, 915 P.2d 271, 276
(1996))). Accordingly, we adopt the Lohrmann test, as explained in Gregg,
for use in determining whether a defendant’s product was a substantial
factor in causing the plaintiffs mesothelioma.
Sufficiency of the evidence relating to Holcomb’s mesothelioma
We next address whether, under the Lohrmann test,
appellants submitted sufficient evidence to raise triable issues of fact on
the issue of causation in response to the summary judgment motion in this
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,
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114 Nev. 749, 759, 961 P.2d 754, 760-61 (1998); see also Wyeth, 126 Nev.
at _, 244 P.3d at 778. This fact-specific inquiry begins with the
”’interrelationship between the use of a defendant’s product at the
workplace and the activities of the plaintiff at the workplace. This
requires an understanding of the physical characteristics of the work·place
and of the relationship between the activities of the direct users of the
product and the bystander plaintiff.'” Georgia-Pacific v. Pransky, 800 A.2d
722, 725 (Md. 2002) (quoting Eagle-Picher v. Balbos. 604 A.2d 445, 460
(Md. 1992)).
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. lO
In this case, neither party takes the position that some jurisdictions take
that “any” or “each and every” exposure, even if it is just one strand of
asbestos, is a substantial factor in causing mesothelioma. See John
Crane, Inc. v. Wommack, 489S.E.2d 527, 531 (Ga. Ct. App. 1997)(“Expert
testimony showed that it is universally agreed that asbestos fibers are
intrinsically dangerous and that the respiration of each fiber is
cumulatively harmful.”); McAskill v. American Marine Holding Co., 9 So.
3d 264, 268 (La. Ct. App. 2009) (acknowledging that “[mJedical science has
proven a causal relationship between asbestos exposure and mesothelioma
lOWhile 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
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above background levels,” that ”brief exposures to asbestos have caused
mesothelioma,” and that “every non-trivial exposure to asbestos
contributes to and constitutes a cause of mesothelioma”); Held v. Avondale
Industries, Inc., 672 So. 2d 1106, 1109 (La. Ct. App. 1996) (medical
evidence showed that even slight exposure to asbestos is a significant
contributing cause of mesothelioma). In fact, the courts that adopt the
three-factor test of frequency, regularity, and proximity regularly reject
the “any” exposure argument. See, e.g., Lohrmann v. Pittsburgh Corning
Corp., 782 F.2d 1156, 1162 (4th Cir. 1986) (rejecting the “any” rule as
being contrary to Maryland’s substantial causation law); Gregg v. V-J
Auto Parts, Inc., 943A.2d 216, 226-27 (Pa. 2007) (“[W]e do not believe that
it is a viable solution to indulge in a fiction that each and every exposure
to asbestos, no matter how minimal in relation to other exposures,
implicates a fact issue concerning substantial-factor causation in every
‘direct-evidence’ case.”). Thus, more than any exposure must be shown.
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 mesothelioma.
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.,
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980 F.2d 411, 418-23 (7th Cir. 1992). For a case to move past the
summary judgment phase to a jury, the plaintiff must demonstrate “an
inference of probability,” meaning that “the plaintiff must put forth
evidence that supports an inference of probable exposure to the
defendant’s asbestos product.” Id. at 418. Appellants must provide
evidence of Holcomb’s exposure to each of respondents’ products in order
to justify a reasonable inference that the product was a substantial factor
in causing his mesothelioma. Once some evidence offrequent, proximate,
and regular exposure to a respondent’s product is produced, it is for the
jury to determine whether the exposure is sufficient to meet the frequency,
proximity, and regularity prongs. See id. at 418-23.
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 jointcompound
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
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,
—_ 21 …………..—_…….———————~—————— -‘”
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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 andjobs 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 asbestoscontaining
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.
Holcomb presented evidence that he used Kelly-Moore’s Paco
joint-compound brand, including Paco Quik-Set, in Florida and LasVegas.
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 Pacoproduct 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 thana minimal
amount and, when considered with Holcomb’s asserted direct exposure to
. asbestos in the product, may amount to regular and proximate exposure
over an extended period sufficient to cause mesothelioma. Accordingly, a
jury could reasonably infer that Kelly-Moore’s Paco products were a
substantial factor in the development of Holcomb’s cancer.
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. H
olcomb 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 predated
Kaiser Gypsum’s introduction of a non-asbestos formula in 1974.
Thus, any Kaiser Gypsum products that Holcomb used prior to 1974
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(0) 1947A ,~
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, 943 A.2d at 225, we conclude that Holcomb has presented
sufficient evidence to defeat summary judgment against Kaiser Gypsum.
Accordingly, the district court should not have granted summary
judgment, as issues of material fact remain for the jury to resolve.
Georgia Pacific
Holcomb testified that he used Georgia Pacific brand jointcompound
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 “ali inference of
probable exposure to the defendant’s asbestos product,” Tragarz v. Keene
Corp., 980 F.2d 411, 418 (7th Cir. 1992), we conclude that Holcomb met
this minimal burden.
(0) 1947A ~
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.ll
We agree with Union Carbide. Deposition testimony supports
that Kelly-Moore, Kaiser Gypsum, and Georgia Pacific used numerous
suppliers of asbestos.12 Without knowing the specific products that
llOn 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.
12Respondents 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.
continued on next page…
(0) 1947A ~
Holcomb used at a particular time, appellants cannot show that Union
Carbide’s asbestos was in the products used by Holcomb.I3 Appellants,
who bear the burden of showing that there is an issue of material fact,
have provided no admissible evidence in this regard. See School Dist. No.
13 v. ACandS Inc., 767 F. Supp. 1051, 1056 (D. Or. 1991) (granting
summary judgment for the defendant where plaintiff identified an
asbestos-containing product manufactured by the defendant and one other
company because there was no evidence that it was the defendant’s
products that were installed and not the products of the other
manufacturer); Estate of Henderson v. W.R. Grace Co., 541 N.E.2d 805,
808 (Ill. App. Ct. 1989) (affirming summary judgment for the defendant,
despite evidence that plaintiff was exposed either to the defendant’s
product or an approved equal, because the evidence failed to show whether
the defendant’s product, as opposed to an approved equal, was actually
City of Elko v. Zillich, 100 Nev. 366, 371, 683 P.2d 5, 8 (1984) (a party may
not raise a new issue for the first time in a reply brief).
13Appellants cite Betsinger v. D.R. Horton, Inc., 126 Nev. _, _,
232 P.3d 433, 435 (2010), to support their argument that they are not
legally required to demonstrate that Union Carbide was the exclusive
fiber supplier, as they are only held to the standard that it was more likely
than not. Even if this were the standard and if appellants could use all of
the contested evidence, they still have not shown that Union Carbide was
a main supplier. See Lineaweaver v. Plant Insulation Co., 37 Cal. Rptr.
2d902, 907-08 (Ct. App. 1995) (recognizing that “the probability that any
one defendant is responsible for plaintiffs injury decreases with an
increase in the number of possible tortfeasors” and that “the wrongdoer
who caused the harm … should bear the cost, and it serves no justice to
fashion rules which allow responsible parties to escape liability while
demanding others to compensate a loss they did not create”).
(0) 1947A Q,~
used at the plaintiffs job site); Samarin v. GAF Corp., 571 A.2d 398, 406
(Pa. Super. Ct. 1989) (affirming summary judgment when evidence
showed that the plaintiff was exposed to an asbestos cloth, but the
plaintiff could not identify the brand and there were multiple suppliers).
As there is no triable issue of fact, the district co
urt properly granted
summary judgment in favor of Union Carbide, albeit on different grounds.
See Nevada Power Co. v. Haggerty, 115 Nev. 353, 365 n.9, 989P.2d 870,
877-78 n.9 (1999) (determining that when an issue is solely a question of
law, this court may hear the issue in the interests of judicial economy if it
chooses); Ford v. Showboat Operating Co., 110 Nev. 756, 755, 877 P.2d
546, 549 (1994) (this court will “‘affirm the order of the district court if it
reached the correct result, albeit for different reasons.'” (quoting
Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987)).
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., 782 F.2d 1156 (4th Cir. 1986), as
used in cases where a plaintiffs mesothelioma is alleged to have been
caused by exposure to products containing asbestos. See Gregg v. V-J
Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007). Based on the adoption and
application of that test, we conclude that appellants raised inferences of
probable exposure to Kelly-Moore, Kaiser Gypsum, and Georgia Pacific’s
products sufficient to defeat summary judgment as to those respondents,
but not as to Union Carbide. Therefore, we affirm the grant of summary
_____–L ._._~~_.__.__..__
judgment in Union Carbide’s favor but conclude that the district court
erred in granting summary judgment for the remaining respondents. We
thus reverse the summary judgment in part and remand this matter for
further proceedings.
We concur:
Douglas cr*-
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