Schulz v. Celotex Corp.

• Decision Date: 21 August 1991
• Docket Number: No. 90-1708,90-1708
• Parties: 33 Fed. R. Evid. Serv. 1535 Catherine SCHULZ, Executrix of the Estate of Robert Schulz (deceased), Appellant, v. CELOTEX CORPORATION; Keene Corporation; Owens Corning Fiberglas Corp.; Owens Illinois, Inc.; National Gypsum; H.K. Porter Company; Armstrong World Industries, Inc.; Crane Packing; John Crane Houdaillie, Inc.; Flinkote Company; Garlock, Inc.; Porter Hayden Company; Rock Wool Manufacturing Co.; Eagle Picher Industries, Inc.; Manville Corporation Asbestos Disease Compensation Fund.
• Court: U.S. Court of Appeals — Third Circuit

Page 204

942 F.2d 204

33 Fed. R. Evid. Serv. 1535

Catherine SCHULZ, Executrix of the Estate of Robert Schulz

(deceased), Appellant, v. CELOTEX CORPORATION; Keene Corporation; Owens Corning

Fiberglas Corp.; Owens Illinois, Inc.; National Gypsum;

H.K. Porter Company; Armstrong World Industries, Inc.;

Crane Packing; John Crane Houdaillie, Inc.; Flinkote

Company; Garlock, Inc.; Porter Hayden Company; Rock Wool

Manufacturing Co.; Eagle Picher Industries, Inc.; Manville

Corporation Asbestos Disease Compensation Fund.

No. 90-1708.

United States Court of Appeals, Third Circuit.

Argued June 4, 1991.

Decided Aug. 21, 1991.

Robert J. Murphy (argued), Murphy, Murphy & Murphy, P.C., Philadelphia, Pa., for appellant.

Nathan A. Schachtman and Ann E. Pehrige (argued), McCarter & English, Philadelphia, Pa., for appellee Keene Corp.

Jonathan Wheeler (argued) and Diana L. Moro-Bishop, Wheeler & Bishop, P.C., Philadelphia, Pa., for appellee Rock Wool Mfg. Co.

R. Bruce Morrison (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellee Manville Asbestos Disease Compensation Fund.

William A. Jones, Sherr, Joffe & Zuckerman, West Conshohocken, Pa., for appellee Flinkote Co., Inc.

Robert B. Lawler, Wilbraham & Coleman, Philadelphia, Pa., for appellees Armstrong World Ind. and Nat. Gypsum Co.

James P. Hadden, Goldfein & Joseph, Philadelphia, Pa., for appellee Garlock, Inc.

Before SLOVITER, Chief Judge, and GREENBERG and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

The district court struck the testimony of an attending physician because he did not couch his diagnosis on causation in terms of reasonable medical certainty. We determine that under either the federal or state rule of evidence, the testimony in this diversity asbestos case was sufficiently definite to be admissible. Because that evidence supplied the causation link necessary to carry the plaintiff's case to the jury, the grant of a directed verdict for the defendants was erroneous and will be reversed. ¹ We also conclude that the plaintiff's failure to designate parts of the record to combat the motion for summary judgment filed by one of the defendants precludes relief from that judgment.

Plaintiff's decedent, Robert Schulz, alleged that he contracted asbestosis and lung cancer as a result of exposure to asbestos products manufactured by defendants. He died after a complaint was filed in the district court, but before trial. Plaintiff continued the action on her own behalf and as representative of her husband's estate.

At trial, plaintiff produced the video-deposition testimony of Dr. Allan Freedman describing his examination and treatment of the decedent. Dr. Freedman's diagnosis was that the decedent had contracted asbestosis and that condition along with cigarette smoking caused a fatal lung cancer.

The district court granted defendants' motion to strike Dr. Freedman's testimony because he did not qualify his statements on causation in terms of reasonable medical certainty. After the physician's statements were stricken, the court directed a verdict for defendants because no evidence of causation remained in the record.

Before the trial began, Rock Wool, one of the defendants, asked for summary judgment arguing that plaintiff had not produced any evidence that the deceased had come into contact with its products. The court denied the motion, with leave to renew it at trial. Rock Wool did so, and plaintiff responded with only a general assertion that summary judgment was inappropriate. The district court granted the motion during the trial.

I.

During his lengthy deposition, Dr. Freedman, a specialist in pulmonary disorders, detailed his training and experience in the field. There is no dispute about his qualifications as an expert.

The doctor first examined the decedent in July of 1986 and, together with other physicians in the fields of oncology, radiology, and surgery, treated Mr. Schulz until his death in 1988. In addition to observations from physical examinations, Dr. Freedman conducted tests, examined certain x-rays, and reviewed findings made by other physicians who had treated the decedent.

In explaining his interpretation of x-rays, Dr. Freedman said, "the most likely cause for that is his asbestos exposure and that most likely diagnosis for that x-ray finding would be pulmonary asbestosis." At a later point the doctor was asked, "did you have the occasion, Doctor, to come to any findings or impressions with regard to this [initial] examination, and as a result of your tests and review and analysis of the information and medical history?" The doctor replied that he informed the referring physician and the decedent of several findings: "The first conclusion was with respect to the presence of obstructive airway disease, and that would be emphysema, which I related to cigarette smoking. The second was with respect to the presence of asbestos-related pleura abnormality, and this is pleural plaques. And the third is the diagnosis of mild asbestosis."

In reviewing an x-ray taken at a later date, the doctor referred to "interstitial disease that's present," and said, "In this case, I conclude this his interstitial disease is pulmonary asbestosis."

In addition to the diagnosis of asbestosis made after the initial examination, Dr. Freedman stated that at a later date he also found "squamous cell carcinoma of the right lung involving the mediastinum." Plaintiff's counsel then asked, "And, Doctor, what is the cause of that mediastinum metastatic bronchogenic lung cancer?" Dr. Freedman responded, "His bronchogenic carcinoma was caused as a combined effect of his cigarette smoking and his asbestos exposure."

Defense counsel cross-examined the witness at length about his diagnosis, the relationship between cigarette smoking and cancer, the results of scientific studies, his x-ray interpretations and his physical findings as well as other relevant topics. On re-direct examination, plaintiff's counsel asked, "Now, doctor, you have been examined, I don't know, for a number of hours, on cross-examination. Has anything been brought to your attention that would in any way change the testimony that you have given here with regard to the cause of Mr. Schulz's lung cancer and death?" Dr. Freedman replied, "There has not."

After the deposition was presented at trial, defendants moved to strike the testimony because "[a]t no time during said deposition did Dr. Freedman state any opinion to a 'reasonable medical probability/certainty.' " In granting the motion, the district judge stated, "I think that the testimony of Dr. Allan Freedman is incompetent for its failure to meet a legal standard required of his opinion for causation purposes."

Before the trial, the court decided that the law of New Jersey would govern this diversity case. Based on that ruling, defendants rely on the teaching of New Jersey appellate courts holding that the opinion of a medical expert must state that it is based on "reasonable medical certainty." See, e.g., State v. Harvey, 121 N.J. 407, 581 A.2d 483, 495 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 1336, 113 L.Ed.2d 268 (1991); Bondi v. Pole, 246 N.J.Super. 236, 587 A.2d 285, 287 (App.Div.1991); State v. Freeman, 223 N.J.Super. 92, 538 A.2d 371, 384 (App.Div.1988); Johnesee v. Stop & Shop Cos., Inc., 174 N.J.Super. 426, 416 A.2d 956, 959 (App.Div.1980).

Plaintiff contends that we should be guided by Salas by Salas v. Wang, 846 F.2d 897 (3d Cir.1988). There we held that testimony on aggregate damages by an economist was admissible in a diversity case under the Federal Rules of Evidence, although such evidence would possibly be excludable in the light of an opinion of the New Jersey Supreme Court. In that instance, we considered the federal evidentiary rule to be procedural and arguably in conflict with New Jersey law. The Federal Rules of Evidence, therefore, controlled.

As we recognized in Salas, the determination of whether a particular evidentiary ruling involves federal procedural law or state substantive law, can be difficult. Often admissibility issues overlap with substantive concerns such as standards of proof. Moreover, we must be mindful of Erie's underlying premise that a diversity case tried in federal court using its procedural rules should, nevertheless, be resolved as nearly as possible as if it were in a state courtroom. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). As Justice Harlan observed in determining whether to apply a state or federal rule, it is advisable to consider whether the choice of rule "would substantially affect those primary decisions respecting human conduct which our constitutional system leaves to state regulation." Hanna v. Plumer, 380 U.S. 460, 475, 85 S.Ct. 1136, 1146, 14 L.Ed.2d 8 (1965) (Harlan, J., concurring).

An example of the overlap between procedural and evidentiary issues is presented in Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3d Cir.1986). In that case where plaintiffs sought damages for a possible future cancer, we followed New Jersey appellate opinions that held that, "a future injury to be compensable must be shown to be a reasonable medical probability." Id. Finding that to be "well-settled New Jersey policy," we concluded that plaintiffs were not entitled to recover on the claim in the absence of the required evidence. In that instance, state law affected the standard by which expert testimony was to be judged.

Having alluded to the problem, we leave it without elaboration because we decide the case on the more obvious ground that here no conflict exists between the rules in the federal system and New Jersey. The district court should have admitted Dr. Freedman's testimony regardless of which evidentiary rules applied.

State rule 56(2) is an almost verbatim copy of federal rules 702 and 703 governing the admissibility of expert testimony. ² The state rule was adopted in 1982, but...