On appeal from Superior Court, Law Division, Camden County.
Antell, Ashbey and Stein. The opinion of the court was delivered by Antell, P.J.A.D.
Plaintiff sues defendant manufacturers and distributors of asbestos products for her husband's death of colon cancer which plaintiff claims was caused by exposure to defendants' products. The suit, seeking compensatory and punitive damages, is grounded in theories of strict liability, negligence, breach of warranty and intentional tort.
Decedent had been employed as a maintenance man and pipe insulator at the Bayonne Terminal Warehouse from 1956 until December 1981. From 1956 until 1972 his work as an insulator consisted of removing, cutting, fitting and installing asbestos insulation. It is not denied that he developed cancer of the colon and, after surgical intervention, died December 10, 1982, at the age of 58.
Plaintiff now appeals from an order dismissing her complaint for lack of evidence establishing asbestos exposure as the cause of the disease. She contends that the trial court erroneously found that the expert testimony upon which plaintiff relied to prove causation amounted only to a factually groundless "net opinion." Plaintiff also asserts as error the trial court's refusal to permit a non-medical witness to testify that asbestos exposure was the cause of decedent's colon cancer, and in severing for trial plaintiff's negligence-based claim from the claim grounded in strict liability.
Asserted, too, during the trial was plaintiff's claim for compensatory and punitive damages for decedent's pleural thickening, also said to be asbestos-related. The trial court dismissed this claim for failure to show that the condition constituted an injury for which damages could be allowed, since it was unaccompanied by any diminution of function and decedent was not even aware of its existence. Plaintiff asserts that notwithstanding the lack of measurable harm, the claim for exemplary damages should have been submitted to the jury.
Defendants cross-appeal from a ruling of the trial court receiving into evidence a government publication commenting
on the relationship between asbestos exposure and the development of colon cancer.
It is settled that while qualified expert testimony may be received to support a claim, it must have a foundation in the evidence and not be based on mere speculation or possibility. The term "net opinion" has been used to describe an expert opinion without a factual basis. "The 'net opinion' rule appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299-300, 573 A.2d 196 (App.Div.1990), certif. den. N.J. (July 17, 1990); Parker v. Goldstein, 78 N.J. Super. 472, 189 A.2d 441 (App.Div.1963), certif. den. 40 N.J. 225, 191 A.2d 63 (1963). "This need for supporting data and a factual basis for the expert's opinion is especially important when the opinion is seeking to establish a cause and effect relationship." Rubanick v. Witco Chemical Corp., 242 N.J. Super. 36, 49, 576 A.2d 4 (App.Div.1990). The principal question is whether the opinion evidence proffered by plaintiff herein satisfies the foregoing precepts.
The medical witness upon whom plaintiff relied for proof of causation was Dr. Joseph W. Sokolowski, Jr., a physician specializing in asbestos-related disease. Dr. Sokolowski never examined or treated decedent. From his study of decedent's personal, occupational and medical histories, which were taken from hospital records and plaintiff's answers to interrogatories, he testified to his belief that decedent had contracted colon cancer from exposure to asbestos. He based this on the decedent's "history of occupational exposure, the absence of other risk factors and the epidemiological evidence in the literature," adding "there is no other predisposing factor for the occurrence of carcinoma of the colon in an individual who is the age of Mr. Landrigan." Taken together with the epidemiological literature, the fact that asbestos is the only identifiable risk
factor established it, in Dr. Sokolowski's mind, as the causative agent. Although he later acknowledged that the cause of most cases of colon cancer is unknown, he answered "No" when asked if decedent would "have gotten colon cancer" had he not been exposed to asbestos.
The witness explained that asbestos fibers enter the human system by inhalation into the upper airways. From there they may migrate to other organs or be regurgitated and swallowed into the gastrointestinal tract. While some of the fibers will be excreted in the feces, others are absorbed into the intestinal walls where, after a lengthy latency period, they may alter the cellular structure of the tissue to cause malignant tumors. In such cases fibers will be seen in the patient's feces and intestinal tissue. However, in this case no reference to such findings appears in the hospital records. Dr. Sokolowski explained that this was because the necessary special diagnostic equipment for such an investigation was never employed.
The doctor also testified that x-rays showed a "minimal degree of pleural thickening," that is, asbestos-caused scarring of the outer lining of the lung which resulted in no loss of pulmonary function. This discovery was made by Dr. Sokolowski during the trial. The decedent was not aware of the condition during his lifetime.
In considering whether plaintiff's circumstantial evidence suffices to prove causation it is relevant to note that colon cancer is the second most common form of cancer in American males. As Dr. Sokolowski testified, there are approximately 150,000 cases a year, of which about half result in mortalities. Substantial variations in its incidence occur according to geographical location, not only within the United States, but throughout the world. In this case, the decedent's malignancy took the form of an adenocarcinoma, the characteristic form of 99% of all cases of colon cancer; it was physically indistinguishable from almost all other such cases.
While Dr. Sokolowski agreed that the cause of most colon cancers in the general population is unknown or speculative, he attempted to qualify the point by adding "if you don't have an identifiable risk factor." The risk factors to which he apparently alluded are cigarette smoking, diet, beer drinking, certain predisposing diseases such as ulcerative colitis, familial polyposis, Crohn's disease and, of course, family history. We extract from this the witness's rationale that where a risk factor is present it is, ipso facto, the etiologic agent of the disease. Although not ...