IN RE JOINT EASTERN AND SOUTHERN DIST. ASBESTOS LIT.

Decision Date26 February 1991
Docket NumberNo. 88 Civ. 3317 (RWS).,88 Civ. 3317 (RWS).
PartiesIn re JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. This Document Relates to John Maiorana.
CourtU.S. District Court — Southern District of New York

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

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

Lieber & Lieber, New York City (Eugene H. Lieber, of counsel), for defendant U.S. Mineral Products Co.

Picillo Bromberg Caruso, P.C., Fairfield, N.J. (Arthur D. Bromberg, of counsel), for defendant Combustion Engineering, Inc.

Danaher, Tedford, Lagnese & Neal, P.C., Hartford, Conn. (Paul F. Slater, of counsel), for defendants Pittsburgh Corning Corp. and Fibreboard Corp.

OPINION

SWEET, District Judge.

Defendants Owens-Corning Fiberglass Corporation ("OCF"), United States Mineral Products Company ("USMP"), Pittsburgh Corning Corporation ("PCC"), Fibreboard Corporation ("FC") and Combustion Engineering, Inc. ("CEI") move for summary judgment dismissing the complaint of plaintiff Arlene Maiorana ("Maiorana"), which alleges product liability arising out of exposure to asbestos, on the grounds that Maiorana cannot establish that her husband's colon cancer was caused by exposure to asbestos. For the following reasons, the motion is granted.

The Parties

Maiorana is the widow of John Maiorana, a sheetmetal worker who died of colon cancer on June 16, 1983. She asserts that her husband's cancer was caused by his exposure to asbestos and asbestos-containing products during his construction career.

The defendants are manufacturers of various asbestos-containing products to which Mr. Maiorana is alleged to have been exposed.

Prior Proceedings

This case was originally filed on July 28, 1987 as part of a case brought by sixteen plaintiffs on behalf of themselves and their deceased spouses, Meilinger v. National Gypsum Co., No. 87 Civ. 5188 (S.D.N.Y. filed July 28, 1987). In that complaint, each plaintiff alleged a claim for wrongful death and survival benefits and a claim for loss of services and consortium, and sought punitive damages against the defendants. In May 1988, Maiorana's claims were separated from those of the other widows and filed as an independent case, Maiorana v. National Gypsum Co., 88 Civ. 3317 (S.D. N.Y. filed May 11, 1988). In October 1990, the case was transferred to this Court for expedited trial. By opinion of February 1, 1991 the Court granted defendants' motion for partial summary judgment dismissing Maiorana's wrongful death claim as time-barred.1 756 F.Supp. 794. Therefore, her only remaining claims are those for loss of services and loss of consortium.

The Facts

The defendants assert that summary judgment is warranted here because Maiorana has not and can not set forth evidence from which a jury could conclude that her husband's colon cancer was more probably than not caused by exposure to asbestos. They contend that, aside from the colon cancer itself, Maiorana has presented no clinical evidence indicating that her husband suffered from any asbestos-related infirmities and that therefore her case is based solely on epidemiological data indicating an increased risk of colon cancer among people exposed to asbestos. While the defendants do not, for purposes of the present motion, contest the existence of a causal relationship between asbestos and colon cancer,2 it is their position that Maiorana must prove not only that her husband's contact with asbestos increased his chances of contracting colon cancer, but also that the increase in probability was such that the disease was more probably than not caused by asbestos exposure.

In opposition, Maiorana has relied principally on affidavits from Mr. Maiorana's personal physician Dr. Nathan Rothman ("Rothman"), from two medical experts, Drs. Steven B. Markowitz ("Markowitz") and Carl M. Shy ("Shy"), and from Maiorana herself. Rothman states that he treated Mr. Maiorana, that he was told that his patient had been exposed to asbestos, and that "based upon my knowledge and my particular experience in caring for and treating John Maiorana, it is my opinion, to a reasonable degree of medical certainty that Mr. Maiorana's exposure to asbestos while a sheetmetal worker was more likely than not and probably was a contributing factor to his developing colon cancer." Rothman January 4, 1991 Affidavit ¶ 6.

Markowitz, a specialist in internal medicine and in occupational medicine, relies on a review of Mr. Maiorana's health records and "numerous epidemiological studies which show elevated rates of colon cancer among the asbestos exposed groups" (Markowitz January 11, 1991 Affidavit ¶ 18), none of which he identifies, to conclude "to a reasonable degree of medical certainty that Mr. Maiorana's occupational exposure to asbestos was a significant factor in the cause and development of his colon cancer and death." Markowitz Aff. ¶ 24. Shy, a professor of epidemiology and a clinical physician, reaches a similar conclusion, namely "to a reasonable medical certainty that Mr. Maiorana's occupational exposure to asbestos was a proximate cause, and a substantial factor in his development of colon cancer and of his death." Shy January 10, 1991 Affidavit ¶ 16. He bases this conclusion on review of Mr. Maiorana's medical records and on the results of several epidemiological studies, which he describes in more detail than Markowitz, relating the incidence of colon cancer to asbestos exposure. Shy Aff. ¶¶ 9-11.

Both Markowitz and Shy expressly condition their conclusions on the assumption that Mr. Maiorana did not possess any other characteristics which would have increased his risk of colon cancer, such as a family history of colon cancer, an unusually high diet of red meat, or a history of ulcerative colitis or multiple polyposis. Markowitz Aff. ¶ 20, Shy Aff. ¶ 15.

Finally, Maiorana's affidavit states that to her knowledge her husband had no family history of colon cancer, that he had no history of ulcerative colitis or polyposis, and that he "did not eat a diet of unusually high fat content but rather had and consumed a balanced diet." Maiorana December 21, 1990 Affidavit ¶¶ 4-6.

Discussion
1. The Standard for Summary Judgment

Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court is not expected to resolve disputed issues of fact, Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987), but to determine whether there are any factual issues which require a trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. at 1356. This is particularly true when the issue is one on which the opponent of summary judgment would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the nonmoving party." Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir.1989).

2. Maiorana Must Do More Than Show That Asbestos Exposure Increases the Risk of Colon Cancer

A significant portion of Maiorana's opposition to the defendants' motion consists of discussion of the fact that exposure to asbestos increases a person's chances of contracting colon cancer. As discussed supra at note 2, the defendants do not presently contest this fact. Their motion is based on the contention that Maiorana must prove not simply that asbestos exposure increased her husband's chances of contracting cancer, but that it is more probable than not that the disease was caused by exposure, citing "the tort law requirement that a plaintiff establish a probability of more than fifty percent that the defendant's action injured him." In re Agent Orange Product Liability Litigation, 597 F.Supp. 740, 785 (E.D.N.Y.1984).

3. Epidemiological Data

Maiorana's claim against the defendants rests principally on epidemiological evidence. Epidemiology is the study of the distribution of disease in human populations to detect unusual patterns of disease and to associate those patterns with environmental or biological risk factors. The raw data consists of health surveys, studies of causes of death, medical records and examinations. Epidemiologists analyze this data by statistical methods to discover disease trends which are due to factors other than random chance.

Because of its statistical foundations, epidemiology is useful in recognizing increased rates of affliction in different groups of individuals, rather than to identify the cause of a disease in a particular individual. At most, an epidemiologist can calculate the likelihood that an individual will contract a particular disease. "Risk factors" for a disease are identified by comparing the incidence of the disease in different populations or "cohorts," then studying the different characteristics of the cohorts.

For example, an epidemiologist studying the effects of asbestos exposure might select two cohorts, one comprised of a random sampling of people who had been exposed to asbestos and the other containing individuals who had not been exposed. If the exposed cohort experienced a statistically significant increase in the incidence of any particular disease — that is, an increase which is not likely to have been due to random differences between the cohorts — then the researcher would be likely to conclude that asbestos exposure was a risk factor for that...

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