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Nevada Court Adopts Lohrmann Causation Standard
On December 6, 2012, the Supreme Court for the State of Nevada issued an opinion in the Tamara Holcomb, et al v. Georgia Pacific, LLC, et al (1) case wherein the Court adopted the Lohrmann (2) causation standard as explained in Gregg. (3)
In Holcomb, the plaintiff was diagnosed with mesothelioma, and he sued various joint compound and automotive brake suppliers, and his claims were based on his work in the construction industry as well as his automotive repair work. Dr. Edwin Holstein provided an opinion that stated, “each and every exposure to asbestos increases the total exposure and that the progressively increasing cumulative exposure increases the risk of developing an asbestos-related disease, including mesothelioma.” (4) Defendants moved for summary judgment, and the trial court granted the summary judgment motions, in part, based on Plaintiff’s failure to submit sufficient evidence of exposure to allow a jury to find that the defendants’ products were substantial factors causing Plaintiff’s disease.
Since Nevada had never before set forth a causation standard in asbestos cases, the Court considered the standards articulated by California, Texas and the Fourth Circuit. (5) The Nevada Court did not follow Rutherford because it considered the decision to depart from traditional tort principles by adopting a radical approach to risk exposure, and “proceeding on the idea (a fiction) that every asbestos fiber was involved in the cancer mechanism.” (6) The Nevada Court did not follow Flores case because it held the Texas court swung too far beyond Rutherford and overburdened the claimant with a test that was too stringent. (7) Finally, the Court adopted Lohrmann , which provides that the plaintiff must prove exposure to a specific product attributable to a defendant on a regular basis, over some extended period of time, in proximity to the plaintiff, so that it is probable or reasonable to infer that exposure to the defendant’s product caused the plaintiff’s disease. (8)
1. Holcomb, et al v. Georgia Pacific, LLC, et al, 128 Nev., advance opinion 56 (2012).
2. Lohrmann v. Pittsburgh Corning Corp., 782 F. 2d 1156 (4th Cir. 1986)
3. Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007)
4. See Holcomb at 5-6.
5. See Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1206 (Cal. 1997); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007); Lohrmann at 1163.
6. Holcomb at 12.
7. Holcomb at 14.
8. Holcomb at 16.
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