Mauro v. Owens-Corning Fiberglas Corp.

• Decision Date: 24 May 1988
• Docket Number: OWENS-CORNING
• Citation: 225 N.J.Super. 196,542 A.2d 16
• Parties: , Prod.Liab.Rep. (CCH) P 11,876 Roger MAURO and Lois Mauro, his wife, Plaintiffs-Appellants and Cross-Respondents, v.FIBERGLAS CORP., Pittsburgh Corning Corp., Eagle-Picher Industries, Inc., and Keene Corp., Defendants-Respondents and Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 196

225 N.J.Super. 196

542 A.2d 16, Prod.Liab.Rep. (CCH) P 11,876

Roger MAURO and Lois Mauro, his wife, Plaintiffs-Appellants and Cross-Respondents, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp. Eagle-Picher Industries, Inc., and Keene Corp. Defendants-Respondents and Cross-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 1, 1988.

Decided May 24, 1988.

Greitzer & Locks, Cherry Hills, for plaintiffs-appellants and cross-respondents (Gene Locks, James J. Pettit, Karl N. McConnell and Michael B. Leh, on the briefs).

McCarter & English, Newark for defendants-respondents and cross-appellants (Gita F. Rothschild, of counsel and on the briefs).

Before Judges J.H. COLEMAN, HAVEY and STERN.

The opinion of the court was delivered by

HAVEY, J.A.D.

Plaintiff Roger Mauro instituted this personal injury action against several manufacturers of asbestos-containing products plaintiff was exposed to during his employment as a plumber and a steam fitter from the late 1950's to the mid-1970's. Plaintiff was awarded $7,500 by a jury against defendants Owens-Corning Fiberglas Corporation, Pittsburgh Corning Corporation and Eagle-Picher Industries, Inc. ¹ Plaintiff's principal argument on appeal is that the trial judge erred in dismissing his enhanced risk of cancer claim. On their cross-appeal, defendants' primary contention is that the trial judge erred in denying their motion at the close of plaintiff's case to dismiss plaintiff's claim for emotional distress, since plaintiff failed to prove substantial bodily injury or sickness resulting from the distress. We reject the contentions raised on both the appeal and the cross-appeal and now affirm.

Plaintiff testified at trial he was exposed to asbestos while employed at Owens-Corning from 1957 to 1964 while performing various jobs involving the production of asbestos-containing pipe covering. In 1964, plaintiff was hired as a night repairman at Ancora State Hospital and was assigned to the plumbing-steam fitting shop where he installed plumbing, water and steam lines using asbestos covering. In 1981 he learned for the first time of the harmful effects caused by the ingestion of asbestos fibers. Tests performed on plaintiff by Dr. Peter Gann, Chief of Occupational Medicine at the New Jersey Department of Health, revealed bilateral pleural thickening of the chest walls and calcification of the diaphragm. Dr. Gann informed plaintiff by letter that "your exposure to asbestos has been significant and there is some evidence that this exposure may increase the risk of development of lung cancer."

Dr. James Guidice, a pulmonary specialist, testified on plaintiff's behalf that there was a "high probability" plaintiff had an increased risk of developing cancer as a result of exposure to asbestos. However, Dr. Guidice reached no conclusions regarding plaintiff's specific risk of developing cancer, and was unable to ascribe a specific percentage risk to plumbers or steam fitters as an occupational group who suffered exposure to asbestos. Dr. Guidice was also unable to quantify the "background risk" of those individuals not exposed to asbestos for developing cancer in order to compare the increased risk of those individuals who had been exposed. Moreover, Dr. Guidice could not say it was more probable than not that plaintiff would develop cancer as a result of the asbestos exposure.

Dr. Guidice also testified as to the progressive effect of asbestos on plaintiff's lungs and the need for medical surveillance. He approximated the annual costs of the tests to be between $300 and $500 for a complete breathing test, $50 to $75 for a chest x-ray and $35 per office visit. It was his view that medical surveillance should continue for the duration of plaintiff's life. At the time of trial plaintiff was 47 years of age.

At the conclusion of plaintiff's case, the trial judge rejected plaintiff's enhanced risk claim. At the close of proofs, he charged the jury it could award plaintiff damages for his present medical condition, plaintiff's emotional distress and the cost of medical surveillance. No special verdict form was used and the jury returned a total award of $7,500 for all of plaintiff's claims.

Plaintiff first contends that the trial judge erred in rejecting his claim for enhanced risk of developing cancer caused by the asbestos. After appellant's brief was filed, the Supreme Court decided Ayers v. Jackson Tp., 106 N.J. 557, 598-599, 525 A.2d 287 (1987), in which the court declined to recognize a cause of action for the unquantified risk of disease suffered by plaintiffs as a result of exposure to carcinogens caused by the defendant township's contamination of plaintiffs' water supply. In his reply brief, plaintiff acknowledges Ayers' rejection of the enhanced risk claim, but argues that Ayers must be limited to actions against public entities within the framework of the Tort Claims Act, N.J.S.A. 59:1-1, et seq., relying on the following passage from Ayers:

In deciding between recognition or nonrecognition of plaintiffs' enhanced-risk claim, we feel constrained to choose the alternative that most closely reflects the legislative purpose in enacting the Tort Claims Act. We are conscious of the admonition that in construing the Act courts should "exercise restraint in the acceptance of novel causes of action against public entities." Comment, N.J.S.A. 59:2-1. In our view, the speculative nature of an unquantified enhanced risk claim, the difficulties inherent in adjudicating such claims, and the policies underlying the Tort Claims Act argue persuasively against the recognition of this cause of action. [ Id. at 598, 525 A.2d 287].

There can be no doubt the Ayers court relied in part on the "admonition" that courts must act with restraint in creating new causes of action against public entities in the context of the Tort Claims Act. See id. at 621, n. 3, 525 A.2d 287 (Handler, J., concurring). However, the court's thorough analysis of the public policy considerations pertinent to tort litigation in general satisfies us that its rejection of the unquantified enhanced risk claim was intended to apply to actions against private as well as public tortfeasors.

Ayers begins its analysis by postulating the basic issue:

Our evaluation of the enhanced risk and medical surveillance claims requires that we focus on a critical issue in the management of toxic tort litigation: at what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages? [ Id. at 579, 525 A.2d 287.]

Without reference to the Tort Claims Act, the court then defined the fundamental policy considerations dictating rejection of the unquantified risk claim. It first noted that such a claim "exposes the tort system, and the public it serves, to the task of litigating vast numbers of claims for compensation based on threats of injuries that may never occur." Id. at 597, 525 A.2d 287. In that regard, the court cited Anderson v. W.R. Grace & Co., 628 F.Supp. 1219, 1232 (D.Mass.1986), which rejected the unquantified enhanced risk claim, first because it would create a flood of speculative suits and second, because:

... the increased risk of future harm in this action is the inevitable inequity which would result if recovery were allowed. 'To award damages based on a mere mathematical probability would significantly undercompensate those who actually do develop cancer and would be a windfall to those who do not.' [ Anderson, supra, 628 F.Supp. at 1232, citing Arnett v. Dow Chemical Corp., No. 729586, slip op. at 15 (Cal.Super.Ct.1983) ].

Ayers also underscores the burden on judges and juries of assessing damages for risk of potential disease "without clear guidelines," the self-evident increase in escalating insurance rates which would result, and the difficulty in managing and resolving the substantial litigation such a claim would generate. Ayers, supra, 106 N.J. at 597, 525 A.2d 287. Clearly, these policy considerations apply to litigation involving private as well as public tortfeasors.

Further, Ayers recognized that neither the statute of limitations nor the single controversy rule shall bar toxic-tort claims instituted after a later discovery of a disease or injury caused by defendant's conduct, even if there has been prior litigation between the parties based on the same tortious conduct. Id. at 584, 525 A.2d 287. This approach is a fair and sensible accommodation to the litigant whose unquantified risk claim is not presently cognizable, since it provides the litigant his or her day in court if and when the disease or injury is actually suffered. We do not read Ayers as intending to apply this accommodation only in toxic-tort cases involving public entity wrongdoers.

The speculative nature of plaintiff's enhanced risk claim here implicates the same policy considerations advanced by Ayers. Plaintiff's expert was unable to quantify plaintiff's enhanced risk, nor was he able to say within a degree of medical certainty that plaintiff will ever suffer from cancer as a result of the asbestos exposure. Further, as Dr. Guidice acknowledged, "thousands" of workers have been exposed to asbestos. Recognition of their unquantified enhanced risk claims raises the potential for a flood of speculative suits. Finally, neither the statute of limitations nor the entire controversy doctrine will bar plaintiff's future claim if he actually suffers cancer attributable to defendants' tortious conduct.

Plaintiff also argues that the Ayers' rejection of an unquantified enhanced risk claim is not controlling because in Ayers plaintiffs were not suffering from a present disease, whereas here, it is undisputed plaintiff suffers from a present disease: pleural thickening caused by defendants' asbestos. In Ayers, 300 plaintiff-residents ingested well water containing carcinogens. The source of the water contamination was a sanitary...