On certification to the Superior Court, Appellate Division, whose opinion is reported at 225 N.J. Super. 196 (1988).
For affirmance -- Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Dissenting -- Justice Handler. The opinion of the Court was delivered by Stein, J. Handler, J., dissenting.
In Ayers v. Jackson Township, 106 N.J. 557 (1987), we declined to recognize a cause of action under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, to recover damages for an unquantified enhanced risk of disease resulting from exposure to toxic chemicals. We are now asked to consider whether a claim for enhanced risk of disease is cognizable in a case involving personal injury claims against private -entity defendants asserted by a plaintiff with present injuries attributed to asbestos exposure. The plaintiff's expert testified that there was a "high probability" that plaintiff had an increased risk of contracting cancer during his lifetime. The expert was unable to testify that it was probable that plaintiff would contract cancer, and evidence of statistical studies offered to show a correlation between asbestos-related disease and cancer was excluded. Thus, there is no evidence in the record of the likelihood that plaintiff will contract cancer. The trial court withdrew from the jury's consideration plaintiff's claim for damages based on his enhanced risk of cancer. In a reported opinion, Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196 (1988), the Appellate Division affirmed both the trial court's exclusion of the statistical evidence correlating asbestos disease with cancer and the trial court's rejection of the enhanced-risk claim. We granted certification, 113 N.J. 341 (1988), and now affirm.
Plaintiffs, Roger Mauro (hereinafter plaintiff) and Lois Mauro, his wife, instituted this action against several manufacturers of asbestos products based on injuries allegedly sustained
as a result of inhalation of asbestos fibers in the course of Mauro's employment at Ancora State Psychiatric Hospital. Mauro testified that he was employed as a repairman and later as a plumber-steamfitter. From 1964 until the mid-to-late 1970s he used or was exposed to materials containing asbestos manufactured by defendants, including pipe covering and asbestos cement. The exposure occurred when he was ripping out old insulation material and installing new insulation. He testified that defendants' products contained no warnings.
In 1981 plaintiff and his co-workers participated in tests conducted by the New Jersey Department of Health to determine the prevalence of asbestos-related disease among plumbers and steamfitters in state institutions. Plaintiff was informed by Dr. Peter Gann, the department's Chief of Occupational Medicine, that although the results of his physical examination and lung function test were "normal," he had bilateral thickening of both chest walls and calcification of the diaphragm. Dr. Gann's letter informing plaintiff of his condition stated: "[Y]our exposure to asbestos has been significant and there is some evidence that this exposure may increase the risk of development of lung cancer."
Mauro testified that when informed of his condition, he became "very angry, very upset." He feared contracting cancer because his mother and a prior employer had died of the disease. He subsequently consulted a pulmonary specialist, by whom he has been examined every six months since 1982. Mauro has also had annual chest x-rays. He testified that the reason for his medical surveillance is "to find out if I'm going to get cancer and when I'm going to get it."
Plaintiff's primary expert witness was Dr. James Guidice, a pulmonary specialist who examined plaintiff in 1986. He explained the difference between the lining of the lung, the "pleura," and the "parenchyma," which is the spongy material inside the lung. Dr. Guidice diagnosed plaintiff's condition as
"pleural asbestosis,"*fn1 based on x-ray examination that revealed scarring of the lung lining, pleural plaque formation, and left diaphragmatic calcification.
Dr. Guidice testified that asbestos exposure can cause cancer, and identified four major areas of the body in which asbestos-related cancer is likely to occur: the lungs, the lining around the lungs, the larynx, and the entire gastrointestinal tract. He testified that because of Mauro's asbestos exposure, "the risk of cancer, specifically asbestos-related cancers, is a major concern." Dr. Guidice acknowledged that he did not testify that it was probable that Mauro would contract cancer: "There's a risk. * * * I certainly can't predict he's going to get cancer. All I can say is there's a high probability he's at risk because he's a young man and therefore he's at increased risk * * * for developing cancer."
Dr. Guidice also testified about Mauro's need for medical surveillance "one to two to four times a year depending upon the individual problems," which he said could continue during Mauro's lifetime. He also gave testimony about the estimated costs of x-rays, breathing examinations, and office visits that were components of the required medical surveillance.
In the course of the defendants' voir dire examination concerning Dr. Guidice's qualifications and the scope of his expert testimony, plaintiff's counsel sought clarification from the trial court on whether Dr. Guidice would be permitted to testify about statistical and epidemiological studies indicating that between twenty percent and forty-three percent of those afflicted with asbestos-related disease eventually die of cancer. Defense counsel argued that such testimony was improper because the
statistical studies were not referred to during discovery or in Dr. Guidice's expert report. The relevant portion of that report was characterized as being limited to an opinion that Mauro was at increased risk for "the following asbestos-related diseases: bronchogenic carcinoma; malignant mesothelioma; laryngeal carcinoma; and gastrointestinal carcinoma." The trial court ruled that in view of their omission from his report, Dr. Guidice would be precluded from giving testimony based on such statistical and epidemiological studies.
In its charge to the jury at the conclusion of the trial, the trial court rejected Mauro's claim for enhanced risk of developing cancer. The court explained:
There's no testimony that the Plaintiff Roger has cancer or that he likely will get cancer. In New Jersey damages may not be awarded for any future injury which is merely possible but not probable.
The reason for this rule is simple. In this state, if the Plaintiff were to get cancer sometime in the future and claim same to have been due to an alleged asbestos exposure, at that point he could file a new lawsuit seeking damages for that cancer.
Accordingly, even if you conclude that the plaintiff has an enhanced risk of developing cancer, you may not award any damages for that risk.
However, the court permitted the jury to consider Mauro's claim for damages caused by emotional distress relating to his fear of developing cancer, provided the jury found that Mauro sustained an asbestos-related injury. The court also permitted the jury to consider Mauro's claim for damages caused by his present medical condition, as well as the cost of future medical surveillance.
The jury returned a verdict of $7,500 in favor of plaintiff Roger Mauro and against defendants Owens-Corning, Pittsburgh Corning, and Eagle-Picher Industries. Defendant Keene Corporation was found not liable on all counts. The jury found against Lois Mauro on her claim for loss of companionship and consortium.
The Appellate Division affirmed. Mauro v. Owens-Corning Fiberglas Corp., supra, 225 N.J. Super. 196. The court held that under Ayers v. Jackson Township, supra, 106 N.J. 557,
unless plaintiff could prove to a reasonable degree of medical certainty that cancer was more probable than not, his claim for increased risk of cancer could not be sustained. Mauro, 225 N.J. Super. at 203-04. Ayers was therefore not distinguishable on the ground that it was decided within the framework of the Tort Claims Act or that Mauro, unlike the plaintiffs in Ayers, had sustained a present injury. The Appellate Division also found that Dr. Guidice's testimony regarding the statistical data was properly excluded because it had not been furnished to defendants during discovery. 225 N.J. Super. at 206.
To set a context for our consideration of the enhanced-risk question posed by this record, we restate the inquiry we posed in Ayers as a preface to our analysis of the issues in that litigation:
Our evaluation of the enhanced risk * * * claim[ ] 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? [106 N.J. at 579.]
It is important to recognize at the outset that the rule of law advocated by plaintiffs, i.e., that tort victims should have a present cause of action for a significant but unquantified enhanced risk of future injury, represents a significant departure from traditional, prevailing legal principles. The general rule is that set forth in the Restatement:
When an injured person seeks to recover for harms that may result in the future, he is entitled to damages based upon the probability that harm of one sort or another will ensue and upon its probable seriousness if it should ensue. When a person has suffered physical harm that is more or less permanent in nature * * * he is entitled to recover damages not only for harm already suffered, but also for that which probably will result in the future. [ Restatement (Second) of Torts § 912 comment e (1979).]
See also 3 Personal Injury: Actions, Defenses and Damages § 3.03 (L. Frumer & M. Friedman ed. 1984) ("Plaintiff is entitled to recover damages for those losses which are reasonably certain to occur in the future * * *. Like any other future loss, the permanent nature of the injury must be proved to a degree
of reasonable certainty, or probability."); 1 Damages in Tort Actions § 1.22 (M. Minzer ed. 1989) ("[S]pecial damages must be proven to a reasonable certainty and those special damages claimed but insufficiently proved so as to be too remote may not be recovered."); King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1374-75 (1981) ("In considering the proof of damages in general, * * * many recent tort cases either equate 'reasonable certainty' with the traditional more-likely-than-not standard of proof, use a reasonably probable standard, or at least reject the actual certainty standard."); 22 Am.Jur. 2d Damages § 677 (1988) ("Plaintiffs who have submitted proof of prospective damages to a reasonable degree of certainty are entitled to submit the question to the jury * * *.); 25 C.J.S. Damages § 31 (1966) ("[N]o recovery can be allowed for the mere possibility of future consequences of an injury inflicted by a wrongdoer; in order for suggested future results to be includible as an element of damage, it must appear that they are reasonably certain or reasonably probable to follow."); Annotation, Future Pain and Suffering as Element of Damages for Physical Injury, 81 A.L.R. 423, 424 (1932) ("It is well settled that in an action for a personal injury, future pain and suffering on the part of the injured person in consequence of the injury constitute a proper element of the damages which may be allowed, provided there is the requisite certainty or probability that such pain and suffering will result.").
The long-standing rule in New Jersey is that prospective damages are not recoverable unless they are reasonably probable to occur. Coll v. Sherry, 29 N.J. 166, 174-75 (1959). The rationale for adopting this standard was explained by Justice Francis, then sitting in the Appellate Division, in Budden v. Goldstein, 43 N.J. Super. 340, 346-47 (1957):
In the admeasurement of damages, it is well known that no recovery can be allowed for possible future consequences of an injury inflicted by a wrongdoer. In order for suggested future results to be includible as an element of damage,
it must appear that they are reasonably certain or reasonably ...