Herber v. Johns-Manville Corp.
| Decision Date | 03 April 1986 |
| Docket Number | JOHNS-MANVILLE,Nos. 85-5185,No. 85-5185,85-5258,No. 85-5258,EAGLE-PICHER,85-5185,s. 85-5185 |
| Citation | 785 F.2d 79 |
| Parties | , 20 Fed. R. Evid. Serv. 272, Prod.Liab.Rep.(CCH)P 10,955 Lester R. HERBER, Appellant in, v.CORPORATION; Johns-Manville Sales Corporation; Lake Asbestos Co., Inc.; North American Asbestos Co., Inc.; Philip Carey Company, a Division of Panacon Corporation (a/k/a Carey Canadian, a subsidiary of Jim Waters, Inc.); Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corporation; Forty-Eight Insulation, Inc.; Nicolet Industries, Inc.; Pittsburgh Corning Corporation; GAF Corporation; Celotex Corporation; Armstrong Cork Company; Unarco Industries Inc.; H.K. Porter Co., Inc., Thermoid Division; Southern Asbestos Company; J.P. Stevens, Inc.; Eagle- Picher Industries, Inc.; Amatek Corporation; Delaware Asbestos and Rubber Company; Dacor Inc.; Fiberboard Corporation, Pabco Industrial Products Division; Keene Corporation; Glen Aldon, Inc.; Rapid American, Inc.; Turner Newall Ltd.; Keasbey Mattison Company; Certain Teed Products Corporation; U.S. Rubber Co., Inc.; Asbestos Textile Institute Inc.; Uni-Royal Inc.; Carolina Asbestos Company; J. Franklin Burke Co.; General Asbestos Co.; Asbestos Textile Co.; Ruberoid Company Inc.; and John Doe(s). Appeal ofINDUSTRIES, INC., Appellant in |
| Court | U.S. Court of Appeals — Third Circuit |
James J. Pettit, Neil R. Peterson (Argued), Greitzer & Locks, Philadelphia, Pa., for appellant Lester R. Herber.
Andrew T. Berry (Argued), Gita F. Rothschild, Honora M. Keane, McCarter & English, Newark, N.J., for defendants-appellees Pittsburgh Corning Corp. and Eagle-Picher Industries.
James F. McNaboe, Jeffrey A. Cohen, Schwartz & Andolino, P.A., Livingston, N.J., for defendant-appellee and cross-appellant, Eagle-Picher Industries, Inc.
James E. Farrell, Jr., Terrence P. McGeever, Joseph D. Szczepaniak, Curran, Mylotte, David & Fitzpatrick, Westmont, N.J., for appellee Pittsburgh Corning Corp.
Donald S. MacLachlan, Connell, Foley & Geiser, Newark, N.J., for H.K. Porter Co., Inc. & Southern Textile.
Before ADAMS, GIBBONS, and STAPLETON, Circuit Judges.
The judgment in this diversity action was entered on a jury verdict finding the appellee asbestos suppliers liable to appellant but awarding him no damages. This appeal raises a number of important issues which have been debated for some time in federal and state asbestosis litigation in New Jersey.
The appellant, Lester R. Herber, charges that the district court abused its discretion and misapplied New Jersey law when it excluded evidence of three elements of his alleged damage: present increased risk of a possible future cancer, future cost of medical monitoring to detect the presence of cancer, and emotional anxiety resulting from fear of cancer. We predict that the Supreme Court of New Jersey would disagree with appellant's position on the first element of damage. However, we believe that Court would agree with appellant as to the other two elements. Accordingly, we reverse and remand for further proceedings.
In the course of his employment as a pipefitter, Mr. Herber was exposed to asbestos products. In 1978, he was diagnosed as having pleural thickening, a condition associated with exposure to asbestos. He brought a products liability action against appellees in the district court claiming damages under a strict liability theory. The court denied Herber's proffer of evidence that his exposure to appellees' asbestos had increased the risk of his developing a cancer. The court did so on the alternative bases of insufficiency under New Jersey tort law and undue prejudice under Federal Rule of Evidence 403. This ruling prevented Herber from seeking damages from the jury for the increased risk of developing a future cancer, the future cancer itself, the cost of medical monitoring for signs of cancer, and fear of the future cancer.
A jury, in special interrogatories, found that Herber's lungs manifested exposure to appellees' asbestos products, that appellees were liable for any harm caused by this exposure, that Herber had suffered a physical injury (apparently the pleural thickening), but that Herber had suffered no loss for which compensation should be paid. Specifically, the jury found that the plaintiff had experienced an "injury to his lungs," that exposure to appellees' "asbestos containing products" was the proximate cause of plaintiff's injury, and that the "sum of money [that] would fairly, reasonably, and adequately compensate plaintiff for injuries attributable to defendants' products" was "none." App. 105-6. The trial court entered a judgment in favor of appellant in the amount of zero dollars. This timely appeal followed.
Under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we are required to apply the law of the state in which the district court sat. When the state law is unclear, we are required to predict what the state's highest court would rule. Commission v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). Decisions of lower state courts are not controlling upon us but we acknowledge their expertise in analyzing the law of their state and give appropriate deference. Id.; First National State Bank of New Jersey v. Cm. Fed. Savings & Loan Ass'n of Norristown, 610 F.2d 164, 172 (3d Cir.1979).
Noting that Mr. Herber had proffered no expert opinion or other evidence that would permit a factual finding that he will more likely than not experience cancer in the future, the district court held that New Jersey law does not provide compensation for an increased risk of a future injury that remains a possibility rather than a probability. 1 As a result, the district court refused to permit the existence of this element of alleged damage to be litigated. We hold that the court did not err in this regard.
New Jersey law clearly recognizes a cause of action for anticipated future harm. In Coll v. Sherry, 29 N.J. 166, 175, 148 A.2d 481, 486 (1959), the New Jersey Supreme Court set out the general rule that "[i]f the prospective consequences may, in reasonable probability be expected to flow from the past harm, plaintiff is entitled to be indemnified for them." The New Jersey Supreme Court has applied this rule to a claim for prospective cancer. In Lorenc v. Chemirad Corp., 37 N.J. 56, 76, 179 A.2d 401, 411 (1962), defendant's negligence caused plaintiff to burn his hand with a liquid of defendant's manufacture. Plaintiff sought compensation for the burn's effects, both present and future, including a probable malignancy. The New Jersey Supreme Court found no error in the trial court's instruction to the jury that "in order to make an award ... [as compensation for the malignancy, the jury] must find, by the greater weight of the believable evidence, that plaintiff has shown 'he will probably develop malignancy because of this injury.' " Id.
Herber has thus alleged an injury, a future cancer, cognizable under New Jersey law. However, he did not proffer evidence of a probable future cancer as required by both Lorenc and Coll. Recognizing this fact, Herber argues that he should nevertheless be compensated for the present increased risk of the future cancer attributable to appellees' asbestos. That is, Herber urges that he should be allowed to introduce evidence that, because of his exposure to asbestos, the chance that he will develop a cancer has significantly increased. This increase in risk, says Herber, is an element of the damage he has actually suffered and should be considered in the calculation of his damage award. In his view, he should thus receive an amount equal to the amount one having an asbestos-caused cancer would receive, proportionately reduced to reflect the probability that he will not contract cancer.
We view Herber's argument as fundamentally at odds with New Jersey's approach to compensable injury. Coll and Lorenc stand for the proposition that a future injury, to be compensable, must be shown to be a reasonable medical probability. The objective of this approach is not only to provide compensation for harm that is likely to occur but also to ensure that an award of damages is not made for an injury that probably will not be suffered. Since this is venerable and well settled New Jersey policy, we are not disposed to predict a departure from this case law in the absence of signposts pointing clearly in that direction. We find none.
The New Jersey Supreme Court has expressly reserved decision on the issue of "[w]hether 'increased risk,' standing alone, is an actionable element of damage ...," Evers v. Dollinger, 95 N.J. 399, 412 n. 7, 471 A.2d 405, 412 n. 7 (1984), and we have been referred to no opinion of that Court which suggests to us that it is prepared to recognize increased risk as an independent injury. Nor has Herber's argument found favor in the lower courts of New Jersey. We have found no reported opinion endorsing it and there are two well-reasoned opinions rejecting it. Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 495 A.2d 495 (Law Div.1985); Ayers v. Jackson Twp., 189 N.J.Super. 561, 461 A.2d 184 (Law Div.1983), vacated on other grounds, 202 N.J.Super. 106, 493 A.2d 1314 (App.Div.1985).
In addition to the absence of supporting authority, we perceive no practical or policy grounds which might move the New Jersey Supreme Court to fashion new doctrine in this area. As both the Ayers and Devlin courts noted, for example, New Jersey recognizes cancer as an injury separate and distinct from asbestosis and, accordingly, recognizes a cause of action for cancer which does not accrue until one has discovered, or should have discovered, that one has such an injury. See Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir.1985) (discussing...
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