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

IN THE SUPREME COURT OF THE STATE OF NEVADA

TAMARA HOLCOMB; BILLY JOE

HOLCOMB; JOSEPH HOLCOMB;

SHELLY HOLCOMB; AND KELLY

MILLER,

Appellants,

vs.

GEORGIA PACIFIC, LLC; KAISER

GYPSUM COMPANY, INC.; KELLYMOORE

PAINT COMPANY, INC.; AND

UNION CARBIDE CORPORATION,

Respondents.

No. 56510

FILED

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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.

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BEFORE THE COURT EN BANC.

OPINION

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.

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;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

life.

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

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.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

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, 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…

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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 .

…continued

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

ca
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

…continued

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

(2008).

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

appealed.

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

case.

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

disease.

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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

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,

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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.

22

Kelly-Moore

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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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.

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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…

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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

…continued

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”).

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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)).

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., 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

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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:

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