IN RE JOINT E. & SO. DIST. ASBESTOS LIT.

• Decision Date: 02 April 1991
• Docket Number: No. 88 Civ. 3317 (RWS).,88 Civ. 3317 (RWS).
• Citation: 774 F. Supp. 113
• Parties: In re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. This Document Relates to: John Maiorana.
• Court: U.S. District Court — Southern District of New York

774 F. Supp. 113

In re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION.

This Document Relates to: John Maiorana.

No. 88 Civ. 3317 (RWS).

United States District Court, S.D. New York.

April 2, 1991.

Levy Phillips & Konigsberg (Alan J. Konigsberg, Alani Golanski, of counsel), New York City, for plaintiff.

Christy & Viener (Wayne C. Matus, James M. Minamoto, of counsel), New York City, for defendant Owens-Corning Fiberglas Corp.

OPINION

SWEET, District Judge.

Plaintiff Arlene Maiorana ("Maiorana") has moved for reargument of the motion by defendant Owens-Corning Fiberglas Corp. ("OCF") and others for summary judgment dismissing her claim based on her inability to show that her husband's colon cancer was more probably than not the product of occupational exposure to asbestos. The motion was granted by opinion dated February 26, 1991 ("the Opinion") 758 F.Supp. 199, and the case was dismissed pursuant to the Opinion on March 4, 1991. OCF has cross-moved for attorneys' fees and sanctions. For the following reasons, both the motion and cross-motion are denied.

Background

The parties, facts, and prior proceedings are described in the Opinion, familiarity with which is presumed. The basis for the grant of summary judgment was that Maiorana had not adduced evidence to support a factual conclusion that her husband's illness was more probably than not caused by exposure to asbestos. The Opinion took into account the affidavit testimony of Maiorana herself, her husband's personal physician, and her two medical experts.¹ The Court concluded that Maiorana simply had not shown that her husband was a member of any group which had a relative risk greater than 2.0 of contracting colon cancer due to asbestos exposure. The experts' opinions regarding the cause of Mr. Maiorana's illness were deemed inadmissible because their underlying assumptions were unsupported by any evidence. 758 F.Supp. at 204-205. The physician's opinion was likewise rejected because no evidence indicated that he qualified as an expert in either colon cancer or in asbestos-related illnesses. 758 F.Supp. at 203-204. While Maiorana did present some evidence of epidemiological studies indicating that certain groups might possess relative risks greater than 2.0, she offered nothing to show that her husband could properly be placed within those groups. Id. at 203.

The Motion for Reargument

On the present motion, Maiorana presents numerous arguments for modification of the Opinion. Because of the importance of this issue, each of the arguments will be addressed in turn.

Maiorana's initial mistake is that she seems to have misperceived her burden on the motion for summary judgment. As the plaintiff, at trial she would bear the burden of proof, by a preponderance of the evidence, on the issue of causation. In opposing summary judgment on causation therefore, it was incumbent upon her to come forward with sufficient admissible evidence to show the existence of genuine issue of material fact which would support a jury verdict in her favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). While it is true that as the non-moving party she was entitled to the benefit of any inferences a factfinder might have drawn from the evidence, she was not also entitled to beneficial inferences concerning additional evidence she might present at trial. Thus the mere fact that her experts might conceivably have offered further testimony in support of their conclusions is irrelevant: any such evidence should have been produced in response to the summary judgment motion. Maiorana's failure to do so compels the conclusion that there was none.²

A second problem is that Maiorana seems to misunderstand the nature of epidemiological evidence. As discussed in the Opinion, epidemiology compares the rates of disease in different populations in order to identify statistical trends and anomalies. An epidemiological study generally consists of a "control cohort" and one or more "test cohorts." The control cohort is randomly selected from the population at large, while members of a test cohort are taken from a group of individuals who share the particular characteristic being tested. In studies where the test characteristic is exposure to a toxic substance such as asbestos, it is common to refer to the test cohort as the "exposed cohort."

The relevant point is that the term "test cohort" or "exposed cohort" only has meaning with respect to a particular epidemiological study: a person is a member of such a cohort only if that person actually shares the particular characteristic being tested. Thus there is no single "exposed cohort" encompassing all individuals exposed to asbestos, as Maiorana seems to suggest. See Plaintiff's Memorandum in Support of Motion for Reargument ("Plaintiff's Mem.") at 15. An epidemiological result applies only to individuals who satisfy the criteria for membership in the test cohort.

Accepting the fact that there is a physiological connection between asbestos exposure and colon cancer, it is reasonable to assume that the risk of the disease increases with the level of exposure. It is also logical to assume that there must be a level of exposure for which the relative risk will be greater than 2.0. These assumptions are borne out by the epidemiological studies themselves: for example, a study referred to by Maiorana on Norwegian insulation workers identified a relative risk of 1.43 for those with slight asbestos exposure and 3.75 for those with heavy exposure. Plaintiff's Mem. at 11. Similarly, the study by Frumkin and Berlin discussed...