Submitted: July 30, 2018
Plaintiffs' Motion for Leave to Supplement Expert Report
Due to Changes in Substantive Law, and/or for Reargument
Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire,
Andrew C. Dalton, Esquire, Michael C. Dalton, Esquire, Dalton
& Associates, Cool Spring Meeting House, Adam Balick,
Esquire, Michael Collins Smith, Esquire, Patrick Smith,
Esquire, Balick & Balick, LLC, Attorneys for Plaintiffs
Craig Charles Richards and Gloria Jeanne Richards, his wife;
Weitz & Luxenberg, P.C., of counsel.
A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron
Marvel Bradley Anderson & Tardy LLC, Attorneys for
Defendant Copes-Vulcan, Inc.
Timothy A. Sullivan, III, Esquire, Wilbraham, Lawler &
Buba, Attorneys for The Fairbanks Company.
Christian J. Singewald, Esquire, Rochelle L. Gumapac,
Esquire, White and Williams LLP, Attorneys for Ford Motor
A. Cincilla, Esquire, Amaryah K. Bocchino, Esquire, Ryan
Browning, Esquire, Paul S. Seward, Esquire, Manning Gross
Massenburg, Attorneys for The Goodyear Tire & Rubber
W. Wharton, Judge.
8th day of August, 2018, upon consideration of Plaintiffs
Craig Charles Richards and Gloria Jeanne Richards' Motion
for Leave to Supplement Expert Report Due to Changes in
Substantive Law, and/or for Reargument ("Motion"),
Responses in opposition of defendants Copes-Vulcan, Inc.,
Ford Motor Company, The Goodyear Tire & Rubber Company,
Defendants' Coordinated Joint Supplemental Response in
Opposition to Plaintiffs' Motion for Leave to Supplement
Expert Report Due to Changes in Substantive Law, and/or for
Reargument,  and the record in this matter,
appears to the Court that:
July 10, 2018, the Court granted summary judgment in favor of
all four defendants. In each instance, the Court based its
decision on the recent opinion of the Ohio Supreme Court in
Schwartz v. Honeywell,  in which the Ohio held that
the theory of causation predicated on cumulative exposure,
such as advanced by Plaintiffs' expert Dr. Mark Ginsberg,
was insufficient to establish substantial factor causation
under Ohio law.
June 16, 2017, Plaintiffs served Dr. Ginsberg's initial
report on Defendants. Dr. Ginsberg's conclusion, applicable
to all defendants, was that:
Mr. Richard's cumulative exposure to asbestos was a
substantial contributing cause of his malignant mesothelioma.
It is my further opinion, to a reasonable degree of medical
certainty, that the cumulative exposure from each
company's asbestos product or products was a substantial
contributing factor in the development of Mr.
Richardson's malignant mesothelioma. Each such product
for which exposure can be shown was a cause of said
February 8, 2018, the Supreme Court of Ohio released its
opinion in Schwartz. In Schwartz, the
Court held that cumulative exposure causation was
incompatible with Ohio statutory law, which requires an
individualized determination for each
defendant. The Court also found other problems with
cumulative exposure causation beyond its incompatibility with
Ohio's statutory scheme. Because this Court found that
Dr. Ginsberg's cumulative exposure causation opinion
would not pass muster under Ohio law, it granted the
defendants summary judgment.
Plaintiffs' sought and were granted an opportunity to
seek leave for Dr. Ginsberg to submit a supplemental report.
In their Motion, Plaintiffs attach a supplemental report from
Dr. Ginsberg dated July 18, 2018. In his supplemental
report, Dr. Ginsberg concludes that Mr. Richards'
exposures to each defendant's products "were
sufficient to constitute a substantial factor in causing his
asbestos litigation, applications to modify the Master Trial
Scheduling Order are reviewed under the "good
cause" standard. "Good cause is likely to be
found when the moving party has been generally diligent, the
need for more time was neither foreseeable nor its fault, and
refusing to grant the continuance would create a substantial
risk of unfairness to that party."
"Properly construed, 'good cause' means ...