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POLLOCK v. JOHNS-MANVILLE SALES CORP.

June 10, 1988

Alexander Pollock and Mildred Pollock, his wife, Plaintiffs,
v.
Johns-Manville Sales Corporation, etc., et al., Defendants



The opinion of the court was delivered by: WOLIN

 I. BACKGROUND *fn1"

 Suffice it to say that this case is yet another in the myriad of ongoing asbestos litigation. In this action, plaintiff alleges that as a result of his exposure to asbestos and asbestos-containing products he is currently suffering from a disease which has manifested itself as a thickening of the lung tissue. Plaintiff, however, does not now suffer from any cancerous condition. Nevertheless, plaintiff seeks to present to the jury specific statistical evidence of his increased risk of developing cancer, and he is prepared to show, by way of expert testimony, that due to his exposure to asbestos he now has a 43 percent chance of developing cancer. Subsequently, defendants moved to exclude this issue of increased risk of cancer from trial.

 In addressing this issue, the Court must begin with the axiom that tort law does not compensate for mere speculative injury. Thus, in order to recover damages for a prospective injury such as the increased risk of developing cancer, plaintiff must establish proof of "reasonable medical probability." Coll v. Sherry, 29 N.J. 166, 179, 148 A.2d 481 (1959). For example, in Lorenc v. Chemirad Corp., 37 N.J. 56, 179 A.2d 401 (1962), the Supreme Court of New Jersey allowed a plaintiff to offer expert medical testimony that as a result of spilling defendant's corrosive liquid on his hand, it was "medically probable" that a malignancy would develop. Furthermore, in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984), the New Jersey Supreme Court held that a plaintiff could present evidence of increased risk of cancer upon the actual recurrence of a malignancy--because at that point the risk has materialized as reality.

 Clearly, the thrust of New Jersey tort law, as recently recognized by the State Supreme Court in Ayers v. Jackson Township, 106 N.J. 557, 598-599, 525 A.2d 287 (1987), is that a plaintiff may not recover for "unquantifiable future risks." Instead, a plaintiff must establish either: (1) medical probability, or (2) realization of the risk. To date, however, as noted by the Third Circuit in Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3d Cir. 1986), "the New Jersey Supreme Court has expressly reserved decision on the issue of whether increased risk, standing alone, is an actionable element of damage . . ." (quoting Evers, supra 95 N.J. at 412, n. 7).

 Recognizing the complexity of the issue of awarding compensation on the basis of mere exposure to a toxic substance without proof as to the existence of a present injury, the New Jersey Supreme Court stated:

 
It may be that this dilemma could be mitigated by a legislative remedy that eases the burden of proving causation in toxic-tort cases where there has been a statistically significant incidence of disease among the exposed population. Other proposals for legislative intervention contemplate a funded source of compensation for persons significantly endangered by exposure to toxic chemicals. We invite the Legislature's attention to this perplexing and serious problem.

 Ayers v. Jackson Township, 106 N.J. at 598 (emphasis added). It must also be emphasized, however, that the decision in Ayers was expressly limited to "plaintiff's cause of action for the unquantified enhanced risk of disease." Thus, the New Jersey Supreme Court concluded:

 
We need not and do not decide whether a claim based on enhanced risk of disease that is supported by testimony demonstrating that the onset of the disease is reasonably probable . . . could be maintained under the [New Jersey] Tort Claims Act.

 Id. (citing Coll v. Sherry, supra).

 Plaintiff, in asserting the validity his increased risk claim, contends that this case is clearly distinguishable from Ayers because, unlike the unquantifiable claims with which the Ayers Court was presented, plaintiff is prepared to establish that his risk of cancer is: (1) caused by a diagnosed medical injury, and (2) definable medically and scientifically as having a 43 percent statistical probability of occurring in the future.

 It is this ability to precisely quantify the statistical probability of occurrence upon which plaintiff rests his argument. Moreover, it is this application of mathematical precision which, asserts plaintiff, delivers his claim from the nebulus realm of speculation to the firm ground of reasonable certainty such that it may properly be presented to the jury. Notwithstanding the fact that the relevant probability to which plaintiff's expert will testify is less than 50 percent, this Court notes the recent decision in this district by the Honorable Judge Thompson in Wolozen v. Johns-Manville, Civil Action No. 80-1413 (slip op. March 21, 1988), in which the court stated at page nine of the transcript of its opinion:


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