Consorti v. Owens-Corning Fiberglas Corp.
| Decision Date | 18 January 1995 |
| Docket Number | No. 857,D,OWENS-CORNING,857 |
| Citation | 45 F.3d 48 |
| Parties | Prod.Liab.Rep. (CCH) P 14,139 Frances CONSORTI, individually and as Executrix of the Estate of John Consorti, Plaintiff-Appellee, v.FIBERGLAS CORP., Defendant-Appellant. ocket 94-7501. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the May 5, 1994, judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) awarding damages against an asbestos manufacturer for injuries caused by an asbestos-related disease.
Issue concerning validity of consortium claim certified to New York Court of Appeals.
William G. Ballaine, New York City (Mark S. Landman, Joanna L. Watman, and Siff Rosen, on the brief), for defendant-appellant.
Steven J. Phillips, New York City (Moshe Maimon and Robert I. Komitor, Alani Golanski, Levy Phillips & Konigsberg, on the brief), for plaintiff-appellee.
Before: NEWMAN, Chief Judge, ALTIMARI and LEVAL, Circuit Judges.
On this appeal from a judgment of the District Court for the Southern District of New York (Robert W. Sweet, Judge), awarding substantial damages against an asbestos manufacturer on account of injury caused by mesothelioma, we have concluded that we should certify an important and recurring question of New York law to the New York Court of Appeals. The question is whether a cause of action lies for loss of consortium where, prior to the marriage, the plaintiff's spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage. Accordingly, it is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate, in the form set out below, together with a complete set of briefs, appendices, and record filed by the parties with this Court. This panel retains jurisdiction so that, after we receive a response from the New York Court of Appeals, we may dispose of the appeal. The parties are hereby ordered to bear equally such fees and costs, if any, as may be requested by the New York Court of Appeals.
Certificate to the New York Court of Appeals (pursuant to N.Y.Rules of Court Sec. 500.17(b) (N.Y.Ct.App.) (McKinney rev. ed. 1986)).
1. The certified issue in this case concerns New York's substantive law of loss of consortium. Frances Consorti and her husband, John Consorti, sued defendant Owens-Corning Fiberglas Corp. ("OCF") and others for asbestos-related injuries sustained by John Consorti, and consequent loss of consortium suffered by Frances. The suit is part of a consolidated proceeding known as In re: Joint Eastern and Southern District Asbestos Litigation. Four cases were tried together in the District Court for the Southern District of New York (Robert W. Sweet, Judge) before a jury. Pertinent to this Certificate, the jury returned a verdict awarding the Consortis more than $20 million, including $12 million for Mr. Consorti's past and future pain and suffering and $6 million for Mrs. Consorti's past and future loss of consortium. The District Court set aside the jury's verdict on the issue of future loss of non-economic consortium, and the parties subsequently stipulated, in lieu of a new trial on this issue, that the value of the loss of future non-economic consortium was $332,000. Judgment was entered pursuant to Fed.R.Civ.P. 54(b). See Joint Appendix 5662-63. Mr. Consorti died after the trial.
The circumstances relevant to the consortium claim are as follows. The Consortis were married in 1976. John Consorti was exposed to asbestos between 1960 and 1970, and this exposure was a substantial factor contributing to the mesothelioma he later contracted. The Consortis were married in 1976. The plaintiffs presented evidence to show that, in contrast to asbestosis injury, which occurs immediately upon the ingestion of asbestos fibers into the lungs, mesothelioma does not develop until 25 to 30 years after exposure. Mr. Consorti's mesothelioma was diagnosed in 1992. OCF's evidence did not dispute the plaintiffs' account of the etiology of mesothelioma, except to point out that some pre-malignant changes could be observed a couple of years before the disease became manifest. OCF conceded that Mr. Consorti did not have mesothelioma at the time of the marriage.
OCF contends that the consortium claim is barred because Mr. Consorti's exposure to asbestos occurred prior to the marriage. It relies on Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, 580 N.Y.S.2d 168, 588 N.E.2d 66 (1991). That decision stated that a claim for loss of consortium is not available "if the alleged tortious conduct and resultant injuries occur prior to the marriage." Id. at 798, 580 N.Y.S.2d 168, 588 N.E.2d 66. It is not clear, however, when New York would consider Mr. Consorti's injury to have occurred for purposes of his wife's consortium claim.
The uncertainty arises from various statements, not all entirely reconcilable, in prior state court decisions. In Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 217, 237 N.Y.S.2d 714, 717, 188 N.E.2d 142, 144 (1963), the Court of Appeals said that "the action accrues only when there is some actual deterioration of a plaintiff's bodily structure." That language seems to support Mrs. Consorti's consortium claim, since her evidence showed that mesothelioma, unlike asbestosis, does not occur until long after the ingestion of the asbestos fibers--which, in Mrs. Consorti's case, was long after the date of her marriage. On the other hand, Schwartz held that the injury occurred...
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