Joint Eastern & Southern Dist. Asbestos Litigation, In re
| Decision Date | 06 April 1995 |
| Docket Number | No. 9,D,9 |
| Parties | , 25 Envtl. L. Rep. 20,828, 41 Fed. R. Evid. Serv. 904, Prod.Liab.Rep. (CCH) P 14,210 In re JOINT EASTERN & SOUTHERN DISTRICT ASBESTOS LITIGATION. Arlene MAIORANA, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff/Appellant/Cross-Appellee, v. UNITED STATES MINERAL PRODUCTS COMPANY, Defendant/Appellee/Cross-Appellant/Third-Party Plaintiff, Tishman Realty & Construction Co., Third-party Defendant/Appellee/Cross-Appellant, Mario & DiBono Plastering Co., Third-party Defendant/Appellee/Cross-Appellant, Castagna & Sons, Inc., Third-party Defendant/Appellee/Cross-Appellant. ocket 93-7829L, 93-7853XAP, 93-7859XAP, 93-7871XAP and 93-7891XAP. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven J. Phillips, New York City (Levy, Phillips & Konigsberg, Alani Golanski & Moshe Maimon, of counsel), for plaintiff/appellant.
Frank H. Santoro, Hartford, CT (Danaher, Tedford, Lagnese & Neal, Paul Slater, of counsel), for defendant/appellee.
Christine Gasser, Garden City, NY (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Tod Travis, of counsel), for third-party defendant/appellee/cross-appellant Castagna & Sons, Inc.
William D. Gallagher, McMahon Martine & Gallagher, New York City, for third-party defendant/appellee/cross-appellant Tishman Realty & Const. Co.
Suzanne M. Halbardier, Barry, McTiernan & Moore, New York City, for third-party defendant/appellee/cross-appellant Mario & DiBono Plastering Co.
Before: NEWMAN, Chief Judge, MINER and CABRANES, Circuit Judges.
This case marks the convergence of epidemiological evidence, probabilistic causation in carcinogenic torts, and the important issue of the extent to which a trial court may assess the sufficiency of scientific evidence, in light of the Supreme Court's recent holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., --- U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). That decision enlarged district courts' "gatekeeping" roles in appraising the admissibility of scientific evidence. The central question before us is the standard governing federal judges' evaluations of the sufficiency--as opposed to admissibility--of scientific evidence already admitted.
In 1983, John Maiorana ("Maiorana") died of colon cancer. His widow, plaintiff/appellant Arlene M. Maiorana ("plaintiff"), claimed that her husband's illness was caused by exposure to Cafco D, an asbestos spray manufactured by defendant-appellee United States Mineral Products Co. ("USMP"). This spray was used for insulation on two construction sites--the World Trade Center in New York City and Meadowbrook Hospital in Nassau County, New York--where Maiorana was employed as a sheet metal worker.
The scientific community is divided on whether asbestos exposure significantly increases the risk of contracting colon cancer. At trial in the United States District Court for the Southern District of New York (Robert W. Sweet, Judge ), both plaintiff and USMP brought expert witnesses and numerous epidemiological studies to bear on their dispute over the causal link between asbestos and colon cancer. Plaintiff also introduced into evidence Maiorana's medical records and personal history in order to eliminate other likely causal factors. After considering this evidence, the jury on February 10, 1993, returned a verdict in favor of the plaintiff.
In an opinion dated July 23, 1993, the district court granted USMP's motion for judgment as a matter of law, setting aside the jury verdict. See In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014 (S.D.N.Y.1993) ("Asbestos Litig. III "). We believe that the district court overstepped the boundaries of the role contemplated by Daubert and inappropriately usurped the role of the jury. Therefore, we reverse the order entering judgment as a matter of law for USMP, and we direct the reinstatement of the jury verdict in favor of plaintiff. We affirm those pre-trial rulings which third-party defendants/cross-appellants now challenge on appeal. Finally, we remand for further proceedings consistent with this opinion.
Cafco D is a fireproof asbestos spray formerly used for insulating construction sites. In the fall of 1969 and spring of 1970, two major construction projects where Cafco D was used were the World Trade Center ("WTC") in Manhattan and the Meadowbrook Hospital ("Meadowbrook") in Nassau County, New York.
Maiorana was employed as a sheet metal worker for a small company which performed sheet metal work on both the WTC and Meadowbrook projects. Plaintiff contends that Maiorana and the other sheet metal workers--who worked in close proximity to the asbestos sprayers--were exposed to asbestos through contact with Cafco D. See Asbestos Litig. III, 827 F.Supp. at 1024.
In January 1983, Maiorana was diagnosed with colon cancer. Six months later, on June 16, 1983, Maiorana died from the disease. He was 40.
Plaintiff filed her original complaint on July 28, 1987, in connection with a case brought by sixteen plaintiffs on behalf of themselves and their deceased spouses against a number of manufacturers of asbestos-containing products. 1 These manufacturers included USMP, the producer of Cafco D. By way of several third-party complaints and impleaders, a number of third-party defendants were added to the litigation, including: (1) the general contractor for the WTC project, Tishman Realty & Construction ("Tishman"); (2) the owner of the WTC, the Port Authority of New York and New Jersey ("the Port Authority"); (3) the general contractor for the Meadowbrook project, Castagna & Sons ("Castagna"); and (4) the asbestos spray contractor for Meadowbrook and for the WTC interior, Mario & DiBono Plastering ("Mario & DiBono"). Id. at 1023 & n. 2.
In a series of rulings in 1991, the district court awarded summary judgment in favor of defendants, including USMP, on the grounds that the epidemiological and clinical evidence of causation were insufficient to meet the preponderance standard. See In re Joint E. & S. Dist. Asbestos Litig., 758 F.Supp. 199 (S.D.N.Y.1991) ("Asbestos Litig. I "), reargument denied, 774 F.Supp. 113, and reconsideration denied, 774 F.Supp. 116 (1991).
On appeal, we reversed the grant of summary judgment and remanded for further proceedings, concluding that the evidence was sufficient to survive summary judgment. In re Joint E. & S. Dist. Asbestos Litig., 964 F.2d 92, 96-97 (2d Cir.1992) ("Asbestos Litig. II "). We found that plaintiff had presented not only epidemiological studies in support of a causal connection between asbestos exposure and colon cancer, but also clinical evidence--in the form of Maiorana's own medical records and personal history, which plaintiff's experts used to exclude other possible causal factors. See id. at 96-97. We found that the statements of the plaintiff's experts, viewed in the light most favorable to plaintiff, were the "equivalent of stating that asbestos exposure more probably than not caused the colon cancer." Id. at 97.
From January 20 to February 10, 1993, the case was tried before a jury. By the time the jury was ready to deliver its verdict, all the original direct defendants but USMP had settled. Asbestos Litig. III, 827 F.Supp. at 1023 n. 2. The jury found in favor of plaintiff in the amount of $4,510,000. After allocating percentages of fault among USMP and third-party defendants, the jury found USMP 50% responsible for plaintiff's damages and found three of the third-party defendants approximately equally negligent (both Tishman and Castagna were assessed to be 14% responsible; subcontractor Mario & DiBono was assessed to be 15% responsible). In addition, the jury absolved the Port Authority of any liability.
On March 10, 1993, USMP moved for judgment as a matter of law, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. USMP also moved, in the alternative, for (1) a new trial on grounds of the plaintiff's testimony, the conduct of the plaintiff's counsel, alleged defects in the jury instructions, and the alleged insufficiency of the evidence, and (2) remittitur on the grounds that the award was excessive. Third-party defendants Castagna, Tishman and Mario & DiBono each moved for judgment as a matter of law with respect to the portion of the jury verdict finding it liable. In addition, Tishman and Castagna moved for common-law indemnification against Mario & DiBono.
In an extensive and thoughtful opinion dated July 23, 1993, the district court granted USMP's motion for judgment as a matter of law. In re Joint E. & S. Dist. Asbestos Litig., 827 F.Supp. 1014 (S.D.N.Y.1993) ("Asbestos Litig. III "). The district court based its decision on its findings that (1) plaintiff's epidemiological evidence was insufficient to support a causal connection between asbestos exposure and colon cancer, and (2) plaintiff had failed to present affirmative clinical evidence to overcome the paucity of statistically significant epidemiological proof. Id. at 1050-51.
Epidemiology is the study of disease patterns in human populations. It "attempts to define a relationship between a disease and a factor suspected of causing it." Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, 311 (5th Cir.), modified on reh'g, 884 F.2d 166 (5th Cir.1989), cert. denied, 494 U.S. 1046, 110 S.Ct. 1511, 108 L.Ed.2d 646 (1990). As the district court observed, epidemiological evidence is indispensable in toxic and carcinogenic tort actions where direct proof of causation is lacking. See id. at 1026-28.
Epidemiologists speak in the statistical language of risks and probabilities. The relative risk that exposure to a given causal factor ("c ") will lead to a certain disease ("d ") is expressed as a single-digit ratio, which in the context of asbestos litigation is known as the ...
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