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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
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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.”
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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
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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
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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.
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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.
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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.”
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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
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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
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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
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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.
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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
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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
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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.
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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?
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. . . . 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”).
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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.
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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”).
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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.
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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.
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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 §
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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.
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(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.”
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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
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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 . . .)
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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