LAW.coLAW.co

Patrickson v. DOW Chemical Company and Del Monte Fresh Produce N.A

2026-09-21

Authorities cited

Opinion

majority opinion

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Electronically Filed

Supreme Court

SCWC-XX-XXXXXXX

21-SEP-2026

10:11 AM

Dkt. 56 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---________________________________________________________________

GERARDO DENNIS PATRICKSON; BENIGNO TORRES HERNANDEZ;

FERNANDO JIMENEZ ARIAS; ALIRIO MANUEL MENDEZ; and

CARLOS HUMBERTO RIVERA, individually and on behalf of

others similarly situated,

Respondents/Plaintiffs-Appellants,

vs.

DOW CHEMICAL COMPANY and DEL MONTE FRESH PRODUCE N.A., INC.,

Petitioners/Defendants-Appellees,

and

DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; SHELL OIL

COMPANY; OCCIDENTAL CHEMICAL CORPORATION (individually and as successor to Occidental Chemical Company and Occidental Chemical

Agricultural Products, Inc., Hooker Chemical and Plastics,

Occidental Chemical Company of Texas, and Best Fertilizer Company); STANDARD FRUIT COMPANY; STANDARD FRUIT AND STEAMSHIP

COMPANY; DEL MONTE FRESH PRODUCE (HAWAI‘I), INC. (previously

incorrectly named as Del Monte Fresh Produce Hawai‘i, Inc.),

Respondents/Defendants-Appellees.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-XX-XXXXXXX; CASE NO. 1CC071000047)

SEPTEMBER 21, 2026

DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND

CIRCUIT JUDGE TOMASA, ASSIGNED BY REASON OF VACANCY

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This is the second appeal in this two-decade-old toxic tort

case.1 The lawsuit was brought by Central and South American

banana plantation workers alleging injuries caused by exposure

to the pesticide dibromochloropropane (“DBCP”). Plaintiffs

Gerardo Dennis Patrickson, Benigno Torres Hernandez, Alirio

Manuel Mendez, Carlos Humberto Rivera, and Fernando Jimenez

Arias (“Arias”)2 (collectively, the “Plaintiffs”) were previously

employed by a subsidiary of Del Monte Fresh Produce N.A., Inc.

(“Del Monte”), which used DBCP manufactured by Dow Chemical

Company (“Dow”) in its banana plantations.

In this appeal, the Intermediate Court of Appeals (“ICA”)

made various rulings. Relevant to this certiorari proceeding,

the ICA vacated the Circuit Court of the First Circuit’s

(“circuit court”) orders granting: (1) Dow’s motion for summary

judgment on Plaintiffs’ complaint; (2) Dow’s motion in limine

excluding Plaintiffs’ expert witness, Michael J. DiBartolomeis,

Jr. (“DiBartolomeis”); and (3) Del Monte’s joinders in Dow’s

motions.

1 See Patrickson v. Dole Food Co., 137 Hawaiʻi 217, 368 P.3d 959 (2015) with respect to the first appeal.

2 Arias is referenced in the parties’ briefs as “Jimenez,” “Jimenez Arias,” and “Jimenez-Arias.” For consistency, we will refer to him as “Arias.”

2

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

On certiorari, Dow and Del Monte (collectively, the

“Defendants”) challenge the ICA’s vacatur of summary judgment as

to Arias, maintaining that the record does not reflect evidence

of Arias’s exposure to DBCP. They further contend that

DiBartolomeis’s expert opinions were properly excluded,

rendering summary judgment appropriate as to Arias. Defendants

also ask this court to determine if the ICA erroneously applied

the wrong standard of review in vacating the circuit court’s

order granting Dow’s motion in limine.

For the reasons discussed below, we affirm the ICA and

provide guidance on remand, including how to address causation

in mass toxic torts cases, like this one, in which many people

allege illness or injury caused by exposure to toxic substances.

Thirty-five years ago, in Smith v. Cutter Biological, Inc.,

a Div. of Miles Inc., 72 Haw. 416, 823 P.2d 717 (1991), this

court recognized that the traditional “substantial factor”

causation test is unworkable in mass toxic tort cases:

No longer can we apply traditional rules of

negligence, such as those used in individual and low level

negligence to mass tort cases, especially here, where we

are dealing with a pharmaceutical industry that dispenses

drugs on a wide scale that could cause massive injuries to

the public, and where fungibility makes the strict

requirements difficult to meet. The problem calls for

adopting new rules of causation, for otherwise innocent

plaintiffs would be left without a remedy.

Smith, 72 Haw. at 428, 823 P.2d at 724 (emphasis added). In

Smith, the plaintiff was unable to establish which of four

manufacturers had caused his injury; for that circumstance, this

3

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

court adopted “the alternative market share theory of recovery.”

Smith, 72 Haw. at 421, 823 P.2d at 721.

Here, it is undisputed that Dow manufactured the DBCP that

Del Monte’s subsidiary applied at the banana plantations where

Plaintiffs were allegedly exposed. The alternative market share

theory of recovery is therefore inapposite. The substantial

factor test fares no better because it may still leave

“otherwise innocent plaintiffs [] without a remedy.” Smith, 72

Haw. at 428, 823 P.2d at 724. And the “frequency, regularity,

and proximity” test used in asbestos litigation, which

Defendants urge this court to adopt, is merely a version of the

substantial factor test.

We therefore hold that the appropriate approach to

causation in toxic tort cases is the one set out in comment g to

section 26 of the Restatement (Third) of Torts (“Third

Restatement”). See Restatement (Third) of Torts: Phys. & Emot.

Harm § 26, cmt. g. In these types of cases, the Third

Restatement evaluates causation based on (1) general causation,

(2) specific causation, and (3) exposure to the agent:

In toxic-substances cases, the causal inquiry is modified

by the limits of and available forms of scientific

evidence. That inquiry often must address whether the agent

for which the actor is responsible is capable of causing

the disease from which another suffers (known as general

causation). In addition, the question whether the agent

caused the specific plaintiff’s disease (known as specific

causation) is confronted. See [Restatement (Third) of

Torts] § 28, [cmt.] c(3) and c(4). In addition, a person’s

exposure to the actor’s agent is another necessary aspect

for factual cause to exist. See [Restatement (Third) of

4

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Torts] § 28, [cmt.] c(2). Each of these distinct inquiries

is a component of the factual-cause inquiry.

Restatement (Third) of Torts: Phys. & Emot. Harm § 26, cmt. g.

We reorder this causation test to (1) exposure to the agent, (2)

general causation, and (3) specific causation. For if there was

no exposure, it is not necessary to address general or specific

causation.

With this and the other guidance provided in this opinion,

we affirm the ICA’s November 6, 2025 judgment on appeal.

II. Background

A. Factual background

The following factual background is primarily derived from

the deposition testimony of Arias and his wife, Vilma Julieta

Graham Mastiel (“Mastiel”).

Shortly after getting married, Arias worked as a quality

fruit inspector for Bandeco from 1971 to 1973. Bandeco is a

banana company based in Costa Rica and a subsidiary of Del

Monte.

Arias rotated on a weekly basis through eighteen banana

farms, fifteen of which were owned by Bandeco, and worked up to

seven days per week with little to no vacation days. He started

his day by inspecting the quality of bananas arriving from the

fields. The bananas were delivered to the patio of a packing

facility before being taken inside, where Arias inspected them.

5

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Each packing facility was located on the farm where the bananas

were grown.

Arias worked as part of a team of two or three quality

inspectors assigned to a single packing facility. When an

assignment required overnight stays, they slept in a house on

the farm. At times, Arias remained on the farm for up to a week

due to the volume of bananas requiring inspection.

In addition to conducting quality inspections, Arias

occasionally accepted invitations from the farm administrator to

walk the fields to observe operations. This occurred every once

in a while at each farm where he worked while employed by

Bandeco. Field cutting typically concluded around midday, after

which Arias and the other quality inspectors entered the fields.

While in the fields, the administrator explained the farm’s

management and operational practices.

Arias never observed anyone applying pesticides during his

employment, although he knew individuals who applied them

without knowing what substances were being used. He neither

applied DBCP,3 observed it being applied, nor handled it in any

3 For further discussion of DBCP, see Patrickson v. Dole Food Co., 251 F.3d 795 (9th Cir. 2001), Dole Food Co. v. Patrickson, 538 U.S. 468 (2003), Patrickson v. Dole Food Co., Inc., No. 30700, 2014 WL 895186 (App. Mar. 7, 2014) (mem. op.), and Patrickson, 137 Hawaiʻi 217, 368 P.3d 959.

6

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

way. DBCP is a powerful nematicide that was manufactured by Dow

and used by Bandeco on its farms.4

When the field cutting ran late and the arrival of bananas

was delayed, or during periods of heavy rain, Arias and the

other quality inspectors went into warehouses where chemicals

used on the farms were stored and slept on or near sacks

containing those chemicals. They were unaware of any potential

dangers from inhalation or whether the chemicals were poisonous.

Although Arias could not recall the specific chemicals stored

there, he knew they were chemicals because the warehouses were

used to store substances applied to the banana crops. When the

bananas arrived at the packing facility, or when it stopped

raining, they exited the warehouses.

Arias married Mastiel in 1968. From the time they were

married until Mastiel’s first pregnancy in 1971, Arias and his

wife attempted to have children, without success. During that

4 Del Monte confirmed in responses to Plaintiffs’ interrogatories that, between 1970 and 1973,

Bandeco applied DBCP at its own banana farms at a rate of 4

or 5 [cubic centimeters] per injection, 6 [to] 8 injections

per plant, [at a depth of 15 centimeters,] using a 50

[percent] diluted solution of DBCP. Each acre of banana

plants had approximately [1,400 to 1,800] plants. There

were two applications per year. This calculates to between

3.6 and 7.7 gallons per year of DBCP per cultivated acre of

banana plants on Bandeco owned or operated farms, depending

on the number of banana plants per acre and the number of

[cubic centimeters] in each injection.

“The DBCP was generally applied in two separate cycles lasting approximately two-months per cycle and was not applied monthly or more than two times per plant per year.”

7

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

period, they did not consult physicians due to financial

constraints. Their first biological child was born in April

1971 and passed away later that year from an illness.

They eventually had two children: one biological daughter

born in April 1975, and a second daughter who they adopted.

But between 1977 and 1983, Mastiel had three additional

pregnancies that ended in miscarriages a few months after

conception. Mastiel never used birth control or attempted to

avoid pregnancy. Mastiel never received an explanation from her

physicians regarding the cause of her miscarriages or any

treatment for her pregnancy complications.

Arias passed away in November 2023 during the course of

these proceedings.

C. Procedural background

1. Circuit court proceedings

In their operative second amended complaint, Plaintiffs

brought claims for negligence, conspiracy, and intentional tort

against Dow and Del Monte, among others, and sought compensatory

and punitive damages. Plaintiffs alleged that their health,

welfare, and lives were damaged due to their exposure to DBCP.

a. Michael DiBartolomeis’s expert report and

testimony

Plaintiffs’ toxicologist, DiBartolomeis, prepared an expert

report expressing his opinion that Arias’s health problems were

8

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

likely caused by his exposure to DBCP while working on Bandeco’s

banana farms. Despite not knowing the precise levels of DBCP

present in the farms, DiBartolomeis noted that “even short-term

exposures to relatively low[] concentrations of DBCP in the air

could be toxic to the male reproductive system.” DiBartolomeis

opined that Arias’s exposure to DBCP most likely occurred via

inhalation and potential dermal contact while working inside the

packing facilities, walking in the open fields beneath the

canopies of banana plants, and sleeping in the warehouse where

chemicals were stored. DiBartolomeis also observed that Arias’s

infertility and his wife’s miscarriages were “consistent with

the known toxic effects of DBCP exposure in humans.”

DiBartolomeis relied on several human studies that focused

on occupational exposure to DBCP in agricultural settings,

including one by Martin Kharrazi, Gad Potashnik, and John R.

Goldsmith that evaluated the pregnancy outcomes of married women

whose husbands were employed as banana workers in Israel.

Martin Kharrazi, Gad Potashnik, and John R. Goldsmith,

Reproductive Effects of Dibromochloropropane, 16 Israel J. Med.

Sci. 403, at 404 (1980) (“Kharrazi Study”). The authors

interviewed 62 men, 56 of whom worked in direct contact with

DBCP, and found that,

[o]f 197 pregnancies reported for the total study group, 76

occurred before any contact with DBCP and 121, after the

initial exposure. Of the 76 pregnancies before DBCP

contact, 71 resulted in livebirths and 5 (6.6% of

9

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

pregnancies), in spontaneous abortion; of the 121

pregnancies after initial DBCP exposure, 97 resulted in

livebirths and 24 (19.8% of pregnancies), in spontaneous

abortion.

Reproductive Effects of Dibromochloropropane, 16 Israel J. Med.

Sci., at 404. The authors cautioned that “[a]lthough the design

of this type of epidemiologic study can only point to

associations and cannot prove a causal relationship, it is

plausible that DBCP is causing an increased rate of spontaneous

abortion in the exposed population through its effect on

spermatogenesis.” Reproductive Effects of Dibromochloropropane,

16 Israel J. Med. Sci., at 405. Based on the Kharrazi Study and

others, DiBartolomeis “conclude[d] within a reasonable degree of

scientific probability that [Arias’s] exposure to DBCP . . . is

the most plausible explanation for [his] testicular injury,

oligospermia, and poor pregnancy outcomes.”

b. Dow’s motion for summary judgment

Dow moved for summary judgment on the operative complaint,

but only as to Arias. Del Monte filed a joinder. Dow disputed

the causation element of the negligence claim, contending

Plaintiffs offered no evidence that Arias had any contact with

DBCP. Dow relied on Arias’s admissions that he did not apply

DBCP, did not work in the areas where DBCP was applied, could

not identify a container of DBCP, and never witnessed its

application to argue that no genuine dispute of material fact

10

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

existed as to whether he was exposed to DBCP and whether DBCP

caused his alleged infertility and his wife’s miscarriages.

Dow further asserted that DiBartolomeis’s expert report and

testimony failed to create a genuine dispute that DBCP caused

Arias’s alleged injuries. Dow opposed DiBartolomeis’s reliance

on the Kharrazi Study, noting that, unlike the fifty-six married

banana workers, Arias admitted he had no direct contact with

DBCP. Dow argued that DiBartolomeis’s opinion rested on a study

involving a population whose work history bore no resemblance to

Arias’s.

c. Dow’s motion in limine

Dow concurrently filed a motion in limine to preclude

DiBartolomeis’s expert report and testimony. Del Monte filed a

joinder. Dow argued that DiBartolomeis’s opinions were

speculative, unreliable, and unsupported by the facts because he

improperly assumed that Arias spent four hours in the fields

each afternoon, despite Arias’s testimony that he visited only

“once in a while,” and that Arias was exposed to DBCP via

inhalation on and immediately after application days, even

though Arias admitted he never observed any applications. Dow

also disputed DiBartolomeis’s opinion that DBCP was a

“substantial factor” in causing Mastiel’s alleged miscarriages,

arguing that the opinion was based solely on the Kharrazi Study,

whose authors expressly stated could not prove causation.

11

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

d. Circuit court orders granting Dow’s motions

Following a hearing, the circuit court granted Dow’s

motions for summary judgment and in limine and Del Monte’s

joinders. The circuit court concluded that Arias failed to

establish a prima facie case of legal causation because the

record contained no evidence of his exposure to DBCP, and that

DiBartolomeis’s opinions thus lacked an evidentiary basis for

causation in fact.

3. ICA proceedings

The ICA vacated the circuit court’s orders granting Dow’s

motions for summary judgment and in limine. Patrickson v. Dole

Food Co., Inc., No. CAAP-XX-XXXXXXX, 2025 WL 2693624, at *6

(Haw. App. Sept. 22, 2025) (mem. op.). The ICA concluded that

Arias’s deposition testimony raises genuine issues of material

fact regarding his alleged exposure to DBCP and the adverse

effects such exposure had on his and his wife’s health. Id.

4. Certiorari proceedings

On certiorari, Defendants raise the following questions:

1. Toxic Tort Causation Standard. When the only evidence is

that Plaintiff, a fruit inspector, worked away from the

fields where the subject chemical (DBCP) was applied, never

saw DBCP being applied, and never worked with it himself,

is it sufficient for the plaintiff to proceed to trial when

he merely “must have [had] some exposure because he was on

the farm” where it was applied?

2. Appellate Standard of Review of the Trial Court’s

Gatekeeper Review of Expert Testimony. Did the ICA gravely

err when it used a summary judgment standard in evaluating

an expert’s causation testimony instead of evaluating the

testimony for reliability and relevancy, and when it

12

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

effectively applied a de novo review, rather than an abuse

of discretion standard?

Defendants essentially urge this court to adopt the

frequency, regularity, and proximity test applied in asbestos

cases like Fowler v. Akzo Nobel Chemicals, Inc., 251 N.J. 300,

334 (N.J. 2022), as the standard governing causation in toxic

tort cases and to require plaintiffs to prove dosage as part of

that showing. They also ask this court to decide whether the

ICA erred in applying the summary judgment standard to

DiBartolomeis’s causation testimony rather than evaluating the

testimony for reliability and relevancy under an abuse of

discretion standard.

II. Standard of Review

A. Motion for summary judgment

An appellate court reviews an award of summary judgment de

novo under the same standard applied by the circuit court.

Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719 (2001)

(citation omitted). This court articulated the standard as

follows:

Summary judgment is appropriate if 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 judgment as a matter of law.

Id. (citations omitted). We must review the evidence in the

light most favorable to the party opposing the motion for

13

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

summary judgment. 95 Hawaiʻi at 137, 19 P.3d at 720 (citations

omitted).

We have further explained the burdens of the moving and

non-moving parties on summary judgment as follows:

The burden is on the party moving for summary judgment

(moving party) to show the absence of any genuine issue as

to all material facts, which, under applicable principles

of substantive law, entitles the moving party to judgment

as a matter of law. This burden has two components.

First, the moving party has the burden of producing support

for its claim that: (1) no genuine issue of material fact

exists with respect to the essential elements of the claim

or defense which the motion seeks to establish or which the

motion questions; and (2) based on the undisputed facts, it

is entitled to summary judgment as a matter of law. Only

when the moving party satisfies its initial burden of

production does the burden shift to the non-moving party to

respond to the motion for summary judgment and demonstrate

specific facts, as opposed to general allegations, that

present a genuine issue worthy of trial.

Second, the moving party bears the ultimate burden of

persuasion. This burden always remains with the moving

party and requires the moving party to convince the court

that no genuine issue of material fact exists and that the

moving part[y] is entitled to summary judgment as a matter

of law.

French v. Hawaii Pizza Hut, Inc., 105 Hawaiʻi 462, 470, 99 P.3d

1046, 1054 (2004) (citation and emphasis omitted). This court

has prescribed detailed guidance regarding how a moving party

may satisfy its initial burden on a motion for summary judgment,

providing that:

a summary judgment movant may satisfy [their] initial

burden of production by either (1) producing admissible

evidence to show there was no genuine issue of material

fact, or (2) showing that the non-moving party cannot carry

[their] burden of proof at trial.... [T]he movant generally

cannot support its initial burden of production by pointing

solely to the non-moving party’s lack of evidence if

discovery has not concluded.

14

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Ralston v. Yim, 129 Hawaiʻi 46, 48, 292 P.3d 1276, 1278 (2013)

(citation omitted).

III. Discussion

A. Causation standard in toxic tort cases

This court first addressed the causation element in toxic

tort cases in Smith, 72 Haw. 416, 823 P.2d 717. There, the

appellant was a hemophiliac who tested HIV-positive with the

AIDS virus and claimed that his exposure to the virus occurred

through injections of the Antihemophilic Factor Concentrate

(AHF). Smith, 72 Haw. at 421-22, 823 P.2d at 721. Appellant

sued the four AHF manufacturers for negligence and strict

liability, and the manufacturers moved for summary judgment.

Smith, 72 Haw. at 422, 823 P.2d at 722. The United States

District Court for the District of Hawaiʻi (“USDC-HI”) granted

summary judgment in favor of the manufacturers, “holding that

appellant failed to prove specifically which manufacturer’s

product caused his infection.” Smith, 72 Haw. at 422-23, 823

P.2d at 722.

The case came before this court through certified questions

from the United States Court of Appeals for the Ninth Circuit,

one of which concerned the causation factor in negligence cases:

3. Would Hawaii allow recovery in this case when the

identity of the actual tortfeasor cannot be proven?

If Hawaii would allow recovery, what theory (i.e.

burden-shifting, enterprise liability, market share

or other) would the Hawaiʻi Supreme Court adopt?

15

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

. . . . In considering our response to the questions, we

note that the issue as to question[] . . . three concerns

the causation factor in negligence. The instant problem is

that the plaintiff cannot identify which particular

defendant caused his injury.

Smith, 72 Haw. at 419-20, 823 P.2d at 720. We responded “yes”

to question three and adopted “the alternative market share

theory of recovery.”5 Smith, 72 Haw. at 421, 823 P.2d at 721.

In considering the third question, we explained that we

would need to “deviat[e] from the traditional proof in a

negligence case, which . . . includes the factor of causation”

because in mass tort cases, plaintiffs might not be able to

identify the actual entity responsible for their injuries:

As discussed in the American Law Institute Enterprise

Responsibility for Personal Injuries—Reporter’s Study

(1991) (ALI Study), the field of torts has now expanded to

include personal injury actions described in three tiers of

actions. . . . [T]he third tier includes “mass” torts where

toxic exposure to many plaintiffs may, many years later,

cause cancer or other illness. . . . It is this final tier

with which this case deals. It necessitates considering how

to fairly deal with the plight of plaintiffs unable to

identify, for no fault of their own, the person or entity

who should bear the liability for their injury.

Smith, 72 Haw. at 426, 428, 823 P.2d at 723, 724 (emphasis

added).

We then more generally recognized that new rules of

causation would need to be adopted for mass tort cases:

5 The alternative market share theory of recovery is defined as follows:

Where the conduct of two or more actors is tortious, and it

is proved that harm has been caused to the plaintiff by

only one of them, but there is uncertainty as to which one

has caused it, the burden is upon each such actor to prove

that he has not caused the harm.

Restatement (Second) of Torts § 433B(3) (1965) (“Second Restatement”).

16

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

No longer can we apply traditional rules of

negligence, such as those used in individual and low level

negligence to mass tort cases, especially here, where we

are dealing with a pharmaceutical industry that dispenses

drugs on a wide scale that could cause massive injuries to

the public, and where fungibility makes the strict

requirements difficult to meet. The problem calls for

adopting new rules of causation, for otherwise innocent

plaintiffs would be left without a remedy.

Smith, 72 Haw. at 428, 823 P.2d at 724 (emphasis added).

Ultimately, this court adopted the alternative market share

theory of recovery but did not set forth a new rule of

causation. But this court explicitly recognized the need for

new approaches to causation in toxic tort cases.

More recently, in Feindt v. United States, CIV NO. 22-00397

LEK-KJM, 2025 WL 1348465, at *2 (D. Haw. May 7, 2025), the USDCHI addressed a negligence action brought by seventeen plaintiffs

who sustained personal injuries “from ingesting and being

exposed to drinking water that was contaminated by jet fuel.”

Recognizing that we have not developed a test for causation in

toxic tort cases, the Feindt court predicted how we would

resolve the issue. First, it anticipated that we would require

expert testimony on the causation factor:

There is no controlling Hawaiʻi law specifically addressing

the test for legal causation in toxic tort cases. The Court

must therefore predict how the Hawaiʻi Supreme Court will

decide the issue. See Judd v. Weinstein, 967 F.3d 952, 955–

56 (9th Cir. 2020). The Court predicts that the Hawaiʻi

Supreme Court would hold that the same test applied in

medical negligence cases would extend to toxic tort

actions. Namely, that expert testimony is required to

determine causation.

17

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Feindt, 2025 WL 1348465, at *4 (emphasis added).6

Second, the Feindt court applied the causation test in

Hanford, 292 F.3d at 1133, a toxic tort case involving thousands

of plaintiffs who were allegedly exposed to radioactive

emissions from a federal nuclear facility. In Hanford, the

Ninth Circuit analyzed causation in terms of general and

specific causation:

General, or “generic” causation has been defined by courts

to mean whether the substance at issue had the capacity to

cause the harm alleged, while [specific causation or]

“individual causation” refers to whether a particular

individual suffers from a particular ailment as a result of

exposure to a substance.

Feindt, 2025 WL 1348465, at *4. Applying this bifurcated test,

the Feindt court determined there was sufficient expert

testimony evidence to support a finding “that the chemicals

contained in the [jet fuel] had the capacity to cause the harm

alleged by [p]laintiffs” (general causation) and that certain

6 The requirement of expert testimony is one component of the causation test in medical negligence cases, see Est. of Frey v. Mastroianni, 146 Hawaiʻi 540, 550–51, 463 P.3d 1197, 1207–08 (2020), and toxic tort cases, see In re Hanford Nuclear Rsrv. Litig., 292 F.3d 1124, 1133 (9th Cir. 2002).

In Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., this court stated the rationale for requiring expert testimony to prove causation in medical negligence cases, reasoning that “‘lay jurors are ill prepared to evaluate complicated technical data for the purpose of determining whether professional conduct conformed to a reasonable standard of care and whether there is a causal relationship between the violation of a duty and an injury to the patient.’” Exotics, 116 Hawaiʻi 277, 299-300, 172 P.3d 1021, 1043-44 (2007) (citation omitted); see Craft v. Peebles, 78 Hawaiʻi 287, 298, 893 P.2d 138, 149 (1995) (finding it well-settled in medical malpractice cases that “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony,” since “a jury generally lacks the requisite special knowledge, technical training, and background to be able to determine the applicable standard without the assistance of an expert”).

18

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

plaintiffs sustained injuries from their “exposure to the

chemicals contained in the [jet fuel]” (specific causation).

Feindt, 2025 WL 1348465, at *5. Moreover, upon finding “that

the actual and specific amount of jet fuel chemicals . . .

released into the water supply . . . [wa]s not capable of being

reliably calculated,” it concluded that plaintiffs were not

required to specify “the actual dose to which each individual .

. . was exposed” to prove causation. Feindt, 2025 WL 1348465,

at *6.

Finally, in addition to applying general and specific

causation, the Feindt court also applied the substantial factor

test that this court adopted in Mitchell v. Branch, 45 Haw. 128,

132, 363 P.2d 969, 973 (1961) to ascertain “whether [the]

defendant’s conduct was ‘a substantial factor in bringing about

the [plaintiffs’] harm[s].’” Feindt, 2025 WL 1348465, at *8

(citing O’Grady v. State, 140 Hawaiʻi 36, 44, 398 P.3d 625, 633

(2017)), *7-30.

In Mitchell, 45 Haw. at 132, 363 P.2d at 973, we adopted

the Restatement (First) of Torts’ (“First Restatement”) test for

legal cause, which reads:

The actor’s negligent conduct is a legal cause of harm to

another if

(a) his conduct is a substantial factor in bringing

about the harm, and

(b) there is no rule of law relieving the actor from

liability because of the manner in which his

negligence has resulted in the harm.

19

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Restatement (First) of Torts § 431 (1934) (emphasis added)

(“Mitchell test”).

However, in Smith, this court recognized that toxic tort

cases require new rules of causation and thus rejected the

substantial factor test in favor of the alternative market share

theory of recovery. Smith, 72 Haw. at 421, 428, 823 P.2d at

721, 724. But although Smith did not cite Mitchell directly, it

did reference Knodle v. Waikiki Gateway Hotel, Inc., which

reaffirmed the Mitchell test as “‘[t]he best definition and the

most workable test of proximate or legal cause.’” Knodle, 69

Haw. 376, 390, 742 P.2d 377, 386 (1987) (citing Mitchell, 45

Haw. at 132, 363 P.2d at 973); see Smith, 72 Haw. at 426, 823

P.2d at 723. Therefore, it is understandable why the Feindt

court predicted that this court would continue to rely on the

substantial factor test.

Smith established that the substantial factor test was

unworkable in mass toxic tort cases because it could leave

innocent plaintiffs without a remedy. Smith, 72 Haw. at 428,

823 P.2d at 724. In fact, the Feindt court determined that

plaintiffs failed to meet this causation standard with respect

to at least some of the injuries alleged. Feindt, 2025 WL

1348465, at *8.

20

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

And recognizing this court’s statement in Smith that mass

toxic tort cases require new rules of causation, Defendants urge

this court to adopt the frequency, regularity, and proximity

test used in asbestos litigation, citing Fowler, 251 N.J. 300,

as an example. But as the New Jersey Supreme Court clarified in

Fowler, 251 N.J. at 336, “[t]he frequency, regularity, and

proximity test is merely an articulation of what constitutes a

substantial factor for purposes of determining proximate cause

in an occupational exposure setting.” In other words, the two

tests are functionally equivalent. Federal caselaw cited by

Defendants supports this conclusion. See Menne v. Celotex

Corp., 861 F.2d 1453, 1464 (10th Cir. 1988); Lohrmann v.

Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986).

It is therefore time for this court to determine how

causation should be addressed in mass toxic tort cases.

In this regard, this court has turned to the Restatement of

Torts on various occasions to determine how we should address

developing areas of tort law. See Bynum v. Mango, 106 Hawaiʻi

81, 86 n.12, 101 P.3d 1149, 1154 n.12 (2004) (noting this court

has relied on the American Law Institute’s restatements of torts

as persuasive authority); Guieb v. Guieb, 156 Hawaiʻi 162, 170-71, 571 P.3d 382, 390-91 (2025) (adopting new punitive damages

standard from Third Restatement of Torts: Phys. & Emot. Harm §

21

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

39) Indeed, the Mitchell test was based on the First

Restatement of Torts.

We now adopt the causation test for toxic tort cases set

out in comment g to section 26 of the Third Restatement. See

Restatement (Third) of Torts: Phys. & Emot. Harm § 26, cmt. g.

In these types of cases, the Third Restatement defines causation

in terms of (1) general causation, (2) specific causation, and

(3) exposure to the agent:

In toxic-substances cases, the causal inquiry is modified

by the limits of and available forms of scientific

evidence. That inquiry often must address whether the agent

for which the actor is responsible is capable of causing

the disease from which another suffers (known as general

causation). In addition, the question whether the agent

caused the specific plaintiff’s disease (known as specific

causation) is confronted. See [Restatement (Third) of

Torts] § 28, [cmt.] c(3) and c(4). In addition, a person’s

exposure to the actor’s agent is another necessary aspect

for factual cause to exist. See [Restatement (Third) of

Torts] § 28, [cmt.] c(2). Each of these distinct inquiries

is a component of the factual-cause inquiry.

Restatement (Third) of Torts: Phys. & Emot. Harm § 26, cmt. g.

We reorder this causation test to (1) exposure to the agent, (2)

general causation, and (3) specific causation. If there has

been no exposure, there is no need to reach general or specific

causation.

We also adopt the Third Restatement’s explanations of

exposure, general causation, and specific causation:

(2). Exposure to the agent. In evaluating factual

causation, one issue that may arise is whether the

plaintiff was exposed to the substance.

(3). General causation. “General causation” exists when a

substance is capable of causing a given disease.

22

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

(4). Specific causation. “Specific causation” exists when

exposure to an agent caused a particular plaintiff’s

disease.

Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmts.

c(2)-(4) (emphasis omitted). General and specific causation are

generally explained by the above, which are the first sentences

of comments (c)(3) and (4); these comments provide additional

information on issues relating to general and specific

causation. The first sentence of comment (c)(2) quoted above

merely states that questions of exposure arise; the first

paragraph of the comment generally explains how exposure might

occur:

(2). Exposure to the agent. In evaluating factual

causation, one issue that may arise is whether the

plaintiff was exposed to the substance. Three

primary means of exposure to toxic substances

include inhalation, absorption, and ingestion, but

others exist, such as injection or a fetus's

transplacental exposure to agents in the mother's

body. Often the method of exposure is critical to

the type or extent of risk.

Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmt. c(2)

(emphasis added).

We also note that the Third Restatement says these

categories “are not ‘elements’ of a plaintiff’s cause of action,

and in some cases may not require separate proof.” Restatement

(Third) of Torts: Phys. & Emot. Harm § 28, cmt. c(1) (2010).

According to the Third Restatement, they are merely meant to

“function as devices to organize a court’s analysis.”

23

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmt. c(1)

(2010). We agree that, in some cases, separate proof might not

be required for all three factors of causation. But to the

extent this comment suggests that plaintiffs need not establish

but-for causation by a preponderance of the evidence, we

disagree. In fact, as discussed in the following section, the

Third Restatement actually recognizes that plaintiffs continue

to carry the burden of establishing but-for causation by a

preponderance of the evidence.

B. Expert testimony is required in toxic tort cases

To provide further guidance, we agree with the Feindt

court’s prediction that expert testimony should be required to

establish causation in toxic tort cases, just as in medical

negligence cases, given the special difficulty these cases

present in proving a connection between a toxic substance and

the development of a specific disease with a potentially

significant latency period. See Feindt, 2025 WL 1348465, at *4;

Exotics Hawaii-Kona, Inc., 116 Hawaiʻi at 300, 172 P.3d at 1044.

The Third Restatement concurs. See Reporter’s Note to

Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmt. c(1)

(“Proof of causation often involves the admissibility of expertwitness opinions.”).

That said, Defendants ask this court to require plaintiffs

like Arias to provide expert testimony quantifying the exposure

24

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

level or dosage to meet their burden of production. We decline

to adopt such an approach.

The Third Restatement explains that the burden of

production in toxic tort cases is the same as in all civil

negligence actions: “[t]he plaintiff must prove by a

preponderance of the evidence that, but for the defendant’s

tortious conduct with respect to the toxic substance, the

plaintiff would not have suffered harm.” Restatement (Third) of

Torts § 28, cmt. c(1). Eschewing a substantial factor analysis,

it also notes that “evidence about the causal connection between

toxic agents and disease is [often] derived from group-based

studies in which the incidence of disease for different groups

is compared to determine whether there is an increased incidence

of disease among those exposed to some dose of the [toxic]

agent.” Reporter’s Note to Restatement (Third) of Torts: Phys.

& Emot. Harm § 27, cmt. g; see also Restatement (Third) of

Torts: Phys. & Emot. Harm § 28, cmt c(1).

Some courts have embraced “the idea that a doubling of the

incidence of disease in group studies is sufficient [and

required] to support proof of specific causation.”7 See Bostic

7 The Third Restatement cautions that epidemiologists “do not seek to understand causation at the individual level and do not use incidence rates in group studies to determine the cause of an individual’s disease.” Reporter’s Note to Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmt. c(4). Indeed, the authors of the Kharrazi Study included a disclaimer that “although the design of this type of epidemiologic study can only point to associations and cannot prove a causal relationship, it is possible that (continued . . .)

25

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

v. Georgia-Pac. Corp., 439 S.W.3d 332, 340, 350 (Tex. 2014)

(requiring reliable expert testimony that plaintiff’s exposure

“more than doubled” his risk of disease, as a less demanding

standard would result in “industry-wide liability” and negate

plaintiff’s burden to prove causation by a preponderance of the

evidence); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1315

n.16 (11th Cir. 1999) (applying Georgia law) (breast-implant

case; relative risk of 2.0 is the threshold for an inference of

specific causation; relative risk of 1.24 is insufficient); but

see In re Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124 (2d

Cir. 1995) (applying New York law) (holding that plaintiff could

provide sufficient evidence of causation without proving a

doubling in the incidence of disease); Miller v. Pfizer, Inc.,

196 F.Supp.2d 1062, 1079 (D. Kan. 2002) (rejecting a threshold

of 2.0 for the relative risk and recognizing that even a

relative risk greater than 2.0 may be insufficient); see also

Reporter’s Note to Restatement (Third) of Torts: Phys. & Emot.

Harm § 28, cmt. c(4) (collecting cases either accepting or

rejecting the doubling of risk requirement).

Some courts require plaintiffs who cannot submit direct

proof of specific causation to rule out other possible causes of

(. . . continued)

DBCP is causing an increased rate of spontaneous abortion in the exposed population through its effect on spermatogenesis.” Reproductive Effects of Dibromochloropropane, 16 Israel J. Med. Sci., at 405.

26

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

their disease to increase the probability that the toxic agent

at issue was responsible (also known as differential diagnosis).

See Restatement (Third) of Torts: Phys. & Emot. Harm § 28, cmt.

c(4) (collecting cases).

Other cases indicate that circumstantial evidence may be

independently sufficient to establish specific causation where

there is no direct proof or group-based studies. See Norris v.

Baxter Healthcare Corp., 397 F.3d 878, 882-883 (10th Cir. 2005)

(applying Colorado law) (acknowledging that epidemiology is not

required to prove causation but that when a substantial body of

exonerative epidemiologic evidence exists, it cannot be ignored,

and other evidence proffered to prove causation); Rider v.

Sandoz Pharms. Corp., 295 F.3d 1194, 1198 (11th Cir. 2002)

(applying Georgia law) (“It is well-settled that while

epidemiological studies may be powerful evidence of causation,

the lack thereof is not fatal to a plaintiff’s case.”)

We decline to adopt any rigid test and instead hold that a

plaintiff should offer some evidence “that he or she was exposed

to the toxin at issue, including the estimated amount and

duration of exposure.” Lowery v. Enbridge Energy Ltd. P’ship,

500 Mich. 1034, 898 N.W.2d 906, 914–15 (Mich. 2017)

(concurrence, Markman, C.J.). Such circumstantial proof must

facilitate reasonable inferences of causation, not mere

speculation. See Restatement (Third) of Torts: Phys. & Emot.

27

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Harm § 28, cmt. b (“[A]ll causal determinations require

inferential reasoning.”). As we are unable to anticipate

factual circumstances of future cases, we refuse to set hard and

fast rules regarding the level of exposure required. But trial

courts should exercise their gatekeeping function to ascertain

whether proposed expert testimony meets the touchstones of

relevance and reliability. State v. Vliet, 95 Hawaiʻi 94, 106,

19 P.3d 42, 54 (2001).

C. DiBartolomeis’s expert report and testimony is admissible

under State v. Kim

Turning to the admissibility of DiBartolomeis’s expert

testimony, Defendants argue that the ICA improperly applied a de

novo summary judgment standard rather than the requisite abuse

of discretion standard.

The circuit court excluded DiBartolomeis’s expert report

and testimony, saying:

His opinions are not based on any evidence of

causation in fact. And causation in fact is

predicate evidence that Dr. Di Bartolomeis cannot

provide. That has to be provided through witnesses

in the case, and there is simply no evidence that

Mr. Arias was exposed.

The circuit court was requiring a certain level of exposure

when it so ruled. But we conclude that DiBartolomeis’s expert

testimony met the touchstone of relevance and reliability, and

that the ICA correctly held that the circuit court abused its

discretion by excluding that evidence.

28

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

In State v. Kim, 64 Haw. 598, 604-05, 645 P.2d 1330, 1336

(1982), this court set out the rule governing the admissibility

of expert testimony:

The critical inquiry with respect to expert testimony

. . . is whether such testimony ‘will assist the

trier of fact to understand the evidence or determine

a fact in issue . . . .” [HRE 702.] Generally, in

order to so assist the jury an expert must base his

testimony upon a sound factual foundation; any

inferences or opinions must be the product of an

explicable and reliable system of analysis; and such

opinions must add to the common understanding of the

jury. See [HRE 703.]

[(Footnotes and citations omitted).] “Therefore, the

reliability prong of Kim could include the Frye test, but

Kim is not necessarily limited to general acceptance in the

scientific community. Under the reliability prong of Kim,

it is possible that a court could also consider the

scientific procedure itself, as well as other evidence of

the procedure’s reliability.”

See State v. Montalbo, 73 Haw. 130, 138, 828 P.2d 1274, 1280

(1992) (affirming the Kim test).

Here, the issue is not whether DiBartolomeis relied on a

novel methodology for which we must determine its general

acceptance. Rather, the issue is whether DiBartolomeis based

his opinions upon a sound factual foundation. In preparing his

expert report, DiBartolomeis relied, in part, on Arias’s

deposition testimony and the Kharrazi Study to reach his

conclusion that, to “a reasonable degree of scientific

probability,” Arias’s exposure to DBCP was “a substantial factor

in causing” his infertility and his wife’s miscarriages.

Because Arias’s deposition testimony and the Kharrazi Study do

provide circumstantial proof to facilitate a reasonable

29

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

inference as to exposure and specific causation, both pieces of

evidence provide a reliable factual foundation for

DiBartolomeis’s expert opinion.

In addition, in summary judgment, we review the record de

novo to ascertain whether there were genuine issues of material

fact. See Fujimoto, 95 Hawaiʻi at 136, 19 P.3d at 719.

DiBartolomeis’s expert report notes that inhalation and

potential dermal contact with DBCP likely caused the infertility

issues alleged here. There was also ample evidence of

inhalation and potential dermal contact that the jury could

consider. Therefore, the circuit court exceeded its discretion

in refusing DiBartolomeis’s testimony.

D. Arias raises genuine disputes of material fact as to

whether he was exposed to DBCP and whether such exposure

adversely affected his health

In the proceedings below, Plaintiffs’ counsel did address

causation in terms of general and specific causation, stating at

the summary judgment and in limine hearing that the disputed

issue was specific causation, not general causation (“I don’t

think there’s any dispute that generally speaking on a general

causation level DBCP is capable of causing this kind of harm.

So we’re not arguing about general causation. We’re arguing

about specific causation.”). Dow did not refute Plaintiffs’

counsel’s terminology and used similar language in its cert

application (“In establishing specific causation, which is

30

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

whether the plaintiff was exposed to the toxic substance at a

level sufficient to cause the complained-of medical condition,

these courts require proof of dose.” (Citation omitted)).

In its oral and written rulings, the circuit court focused

on whether Arias established a prima facie case of legal

causation and determined “there [wa]s no substantial evidence of

[Dow’s] negligence causing harm to [Arias].” It appears to have

determined any exposure was not a “substantial factor.”

The parties agree that the remaining issues in dispute are

exposure and specific causation: that is, whether Arias was

exposed to DBCP and whether such exposure caused his infertility

and his wife’s miscarriages. Arias must have presented reliable

expert testimony, grounded in scientific literature, to

establish specific causation by a preponderance of the evidence.

But we have ruled in the past that,

[w]hen causation of the injury is a medical issue, as it is

here, ‘[the] matter does not turn on the use of a

particular form of words by the physicians in giving their

testimony,’ since it is for the trier of facts, not the

medical witnesses, to make a legal determination of the

question of causation. Hence, the failure of a medical

witness to testify positively as to what was the cause of

the injury, or his statement that the accident ‘might’ be

or ‘probably’ was the cause of the injury, is merely a

circumstance to be taken into consideration by the trier of

facts.

Dzurik v. Tamura, 44 Haw. 327, 330, 359 P.2d 164, 165-66 (1960).

We hold that Dzurik applies to expert testimony in toxic tort

cases as well. No “particular form of words” regarding

causation is required. Id. An expert’s statement that a toxic

31

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

substance “‘might’ be or ‘probably’ was the cause of the injury,

is merely a circumstance to be taken into consideration by the

trier of facts” to determine whether causation has been

established. Id.

Reviewing the evidence presented at summary judgment,

Plaintiffs offered sufficient evidence of exposure and adequate

expert testimony on specific causation to overcome summary

judgment and proceed to trial.

During his deposition, Arias testified that he rotated

through eighteen farms, worked up to seven days a week over a

three-year period, took little to no vacation days, and often

accompanied the administrator into the fields to discuss farm

operations and management, where Plaintiffs argued he

potentially inhaled toxic fumes of DBCP. He also slept in

warehouses, where circumstantial evidence indicates DBCP was

stored. Equally significant are Del Monte’s admissions that

Bandeco injected a “50 [percent] diluted solution of DBCP” into

each plant, covering approximately 1,400 to 1,800 banana plants

per acre during two application cycles, each lasting two months.

The evidence therefore also indicates possible dermal exposure

and contact.

Because this appeal concerns a motion for summary judgment,

where all evidence must be construed and all reasonable

inferences drawn in favor of the non-moving party, Arias’s

32

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

deposition testimony and Del Monte’s admissions present enough

circumstantial evidence to raise a genuine dispute that Arias

was exposed to DBCP. A juror could reasonably infer that, since

Arias worked up to seven days a week with little to no vacation

days, it is more likely than not that he was present in the

fields when DBCP was applied during the four-month period and

inhaled the toxic fumes. See French, 105 Hawaiʻi at 466, 99 P.3d

at 1050; Durette v. Aloha Plastic Recycling, Inc., 105 Hawaiʻi

490, 501, 100 P.3d 60, 71 (2004). In addition, as noted above,

DiBartolomeis’s expert report mentions that dermatological or

skin exposure causes the infertility issues alleged here.

As for specific causation, Plaintiffs’ counsel explained at

the summary judgment and in limine hearing that DiBartolomeis

would not offer “an ultimate finding of fact” on specific

causation. Instead, Plaintiffs’ counsel stated DiBartolomeis

would testify that, if Arias was exposed “to DBCP at excessive

levels” while in the fields, such exposure would “increase the

risk of injury and be sufficient to cause the kind[s] of

injur[ries]” Arias sustained, without testifying that it

actually caused them.

In preparing his expert report, DiBartolomeis relied, in

part, on the Kharrazi Study. While acknowledging that the

Kharrazi Study was not “particularly robust,” DiBartolomeis

stated the presence of “a strongly significant correlation

33

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

between paternal DBCP exposure and spontaneous abortion in a

small group of agricultural workers exposed for relatively short

time periods is important evidence that the toxic effects of

DBCP on the male reproductive system can be transferred to

conception and the viability of the fetus.”

What is significant about the Kharrazi Study is its finding

that the husbands’ exposure to DBCP more than doubled the risk

of spontaneous abortions among their wives (6.6 percent pre-DBCP

exposure versus 25.6 percent post-DBCP exposure). See

Reproductive Effects of Dibromochloropropane, 16 Israel J. Med.

Sci., at 404; Bostic, 439 S.W.3d at 349–50; Restatement (Third)

of Torts: Phys. & Emot. Harm § 28, cmt. c(4).

While we decline to adopt a categorical rule requiring

plaintiffs in toxic tort cases to present group-based studies

demonstrating a doubling of the risk attributable to toxic

exposure in the absence of direct proof of specific causation,

in this case, both the Kharrazi Study and Arias’s deposition

testimony provided a sufficient factual and scientific basis to

support DiBartolomeis’s expert opinion to survive summary

judgment. Both pieces of evidence would aid the jury to

understand the evidence or determine a fact in issue, that is,

whether Arias’ exposure to DBCP more likely than not caused his

infertility and his wife’s miscarriages, such that there was

34

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

specific causation. Finally, pursuant to Dzurik, no particular

form of words is required for causation.

IV. Conclusion

For all of these reasons, we affirm the ICA’s November 6,

2025 judgment on appeal and remand to the circuit court for

further proceedings consistent with this opinion.

David W.H. Chee /s/ Vladimir P. Devens for petitioner

Del Monte Fresh Produce /s/ Sabrina S. McKenna N.A., Inc.

/s/ Todd W. Eddins

Steven L. Goto,

Michael L. Brem, and /s/ Lisa M. Ginoza

George R. Diaz-Arrastia

for respondent /s/ Taryn R. Tomasa Dow Chemical Company

Keith M. Kiuchi and

Scott M. Hendler

for respondent

Plaintiffs-Appellants

35