On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
J.h. Coleman, Dreier and Landau. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiffs William Gasko and Marie Gasko have appealed, and defendants The Celotex Corporation and GAF Corporation were granted leave to cross-appeal. Plaintiffs appeal from the summary judgment dismissing the complaint, and defendants from an earlier grant of remittitur and denial of their motion for judgment n.o.v.
For a 15-year period from 1951 to 1966, plaintiff William Gasko was employed by Goetze Gasket, a Johns-Manville Division. Defendants were manufacturers of asbestos sheets and rolls cut and used by plaintiff in his employment. According to plaintiff there was constant asbestos dust in the air which he inhaled and also ingested. He explained that the employees would eat lunch in the same room in which they worked, where quantities of the dust accumulated. As a result of health problems, he left his employment with Johns-Manville and went to work on a farm he had previously purchased.
During plaintiff's October 1974 hospitalization, his physician discovered colon cancer, and a section of his large intestine was removed. After many follow-up medical visits, there has been no recurrence of the cancer. Plaintiffs' claims for damages included Mr. Gasko's personal discomfort, inability to work, inability to function in a normal capacity and an apprehension concerning the return of the cancer, as well as his wife's claim for loss of consortium.
After the initial trial in this matter, the jury awarded plaintiff $500,000 and his wife $200,000. Defendants immediately
sought a new trial or the alternative relief of a remittitur based upon the excessiveness of the verdict. The trial judge found that the damages awarded were excessive and a shock to the court's conscience. He ordered remittitur to the amount of $200,000 for plaintiff and $20,000 for his wife, or in the alternative a new trial on all issues. Plaintiffs rejected the remittitur and the new trial was ordered.*fn1
Prior to the commencement of the new trial, defendants moved for summary judgment, contending that plaintiffs' proof of medical causation was legally insufficient. The trial judge had recently concluded two other trials with similar issues, the same attorneys, and in one trial, the same expert witness for plaintiff, Dr. Susan Daum. The argument of counsel at the motion referred principally to Komenda v. Asbestos Corporation Ltd. (L-060683-85), but also to Caterinicchio v. Pittsburgh Corning Corp., recently affirmed in part and reversed in part by this court (A-4706-88T2). The trial court questioned plaintiffs' counsel concerning the possible scope of Dr. Daum's testimony in any retrial of the Gaskos' claims. Plaintiffs' counsel stated that while this was the first colon cancer claim that was being tried, Dr. Daum would testify to the same epidemiological studies as were described in plaintiffs' first trial and in Komenda. The trial judge then stated:
THE COURT: So it seems to me what in effect you're saying, Mr. Kuhn, is that the Court should make a determination and assume that Dr. Daum, if the case is retried, would testify along the same lines and the cross-examination would be along the same lines not as in this particular case but as more extensively done in the Komenda case and perhaps in the Caterinicchio case, but she was not the expert in the Caterinicchio; is that correct, it was another doctor from New York?
[DEFENSE COUNSEL]: I believe that's correct, judge.
THE COURT: All right. In view of that I'm going to grant the motion barring testimony by Dr. Daum on the relationship between the asbestos exposure and the cancer of the colon. I take it ...