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Grassis v. Johns-Manville Corp.

New Jersey Superior Court, Appellate Division

Decided: May 30, 1991.


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.


[248 NJSuper Page 449]

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

[248 NJSuper Page 450]

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?

[248 NJSuper Page 451]

[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 then counsel will concede it has no case and --

MR. KUHN: That's correct. There was no other injury.

THE COURT: All right. And based on that representation of counsel then I would grant the motion of summary judgment and now you're in a position to . . . go to the appellate division and hopefully they will act quickly and will get this issue resolved as to epidemiological studies.*fn2

This case squarely presents for adjudication the standards under which epidemiological evidence can be admitted to support a physician's determination of an environmental factor's causation of a specific medical condition. The difference between this case and other reported opinions on the subject is that the expert here is not only an epidemiologist, but also a medical doctor who purported to relate the epidemiological studies to her medical findings concerning plaintiff. She used both her medical findings and the epidemiological studies to explain her opinion concerning the medically probable causes of plaintiff's condition.*fn3

[248 NJSuper Page 452]

First, we will put aside plaintiffs' objections to the trial judge's decision to grant a new trial. The $700,000 damage award on the facts presented was so grossly disproportionate to the proofs that the trial judge had no choice but to order a new trial. Plaintiffs had presented little more than a summary conclusion that they suffered from Mr. Gasko's illness. Although he feared recurrence of the cancer, there was but brief testimony that plaintiff's abilities were diminished, that he suffered lost wages, and that Mrs. Gasko had suffered loss of consortium. Considering that plaintiff's colon cancer has not returned since its discovery and removal in 1974, the $700,000 award properly was found to shock the judicial conscience.

The real issue in this case is whether the trial judge should have precluded Dr. Daum from testifying if her opinion was based in substantial part upon epidemiological studies

[248 NJSuper Page 453]

which did not show asbestos exposure as having a causative factor in excess of 2.0.*fn4 In the case before us, although Dr. Daum alluded to other studies (described in the Komenda transcript) where the asbestos-exposure risk factor in the incidence of colon cancer exceeded 2.0, she confirmed that the authoritative studies were generally below the 2.0 level. She even acknowledged (but distinguished) some studies which showed a negative correlation.

As noted in Landrigan, however, epidemiological studies do no more than define risk factors, they do not establish the cause of a disease in a particular person. They also contain inherent anomalies. For example, a particular study might show a high correlation between asbestos and colon cancer, but it also might show a high correlation between the consumption of excessive alcohol and colon cancer. If there were also a very

[248 NJSuper Page 454]

high correlation between those working with asbestos and the high consumption of alcohol, one could not tell whether the alcohol or asbestos or both actually were causative factors of the colon cancer, or even whether the presence of both were needed in order to be a producing factor of the disease. Each study must be analyzed to determine whether the asbestos factor was really isolated. Where, however, study after study has shown some positive correlation, although not to the factor of 2.0, it might be said that asbestos is at least a producing factor in some colon cancers, even if the precise biological process has not yet been defined.

An epidemiologist cannot state that it is more likely than not that a particular case of colon cancer, after asbestos exposure, was caused by the asbestos. Landrigan, 243 N.J. Super. at 462, 579 A.2d 1268. A medical doctor, however, or even one otherwise acquainted with the physiology of a particular patient and the progress of the disease, may make a medical judgment concerning the origin of a disease. See Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 41, 576 A.2d 4 (App.Div.1990) (now on appeal to the New Jersey Supreme Court). The physician or other such qualified expert may view the epidemiological studies and factor out other known risk factors such as family history, diet, alcohol consumption, smoking (surprisingly, generally recognized as not being a risk in colon cancer, according to the testimony in this case), or other factors which might enhance the remaining recognized risks, even though the risk in the study fell short of the 2.0 correlation.*fn5

[248 NJSuper Page 455]

The interpretation of the data, however, is the function of the qualified expert, and the relationship of the data to the particular case is also a proper subject of expert opinion for the physician or other similarly qualified witness. As noted by the Court in Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 289, 579 A.2d 1241 (1990), courts should be loath to determine whether the particular expert has properly relied upon data which experts in the field generally rely upon.*fn6 If in the case before us, the trial judge determined that experts in the causation or treatment of disease rely upon epidemiological studies, Dr. Daum should have been permitted to testify respecting the bases for her causation opinion, including the epidemiological studies upon which she relied. Dr. Daum's reliance upon the epidemiological studies in this case should be and was subject to rigorous cross-examination, after which "the weight to be accorded the evidence [should be] left to the determination of the fact-finder." Id. at 288, 579 A.2d 1241.

Defendants argue that there should be a threshold of a 2.0 correlation before an expert should be permitted to rely upon an epidemiological study. They urge that only when this figure is exceeded can it be said that the particular factor is more likely than not to have produced the particular injury. This assertion proves too much. Assuming a large group of potential plaintiffs, a causative factor of 1.99 and significant evidence eliminating other known causes, defendants' proposition would still exclude the epidemiological proof. Even though the physical problems of just under one-half of the plaintiffs (without reference to the additional causative proof) would have

[248 NJSuper Page 456]

been statistically "caused" by the factor being studied, none could recover. Yet, if a new study raised the risk factor to 2.01, all of the plaintiffs could use the study to collect damages, although for nearly one-half of the group, the risk factor was not an actual cause of the condition. This makes little sense, scientifically or legally.

We can understand some high threshold risk-factor limitation on the admission of the epidemiological study itself, if the study is offered, not as a foundation for a physician's explanatory opinion, but as direct evidence of causation. But even if a study is deemed separately admissible, it is merely evidential, and requires explanation. In the case before us, however, unlike in Landrigan, testimony concerning the studies was offered not as substantive evidence, but only as one of the bases for Dr. Daum's opinion, see Evid.R. 56(2), thus opening her to the cross-examination, presentation of contrary proofs, and ultimately the resolution of the issue by a jury as envisioned in Ryan. 121 N.J. at 288, 579 A.2d 1241. Cf. Evid.R. 57. Evid.R. 56(2) specifies that "the facts or data [upon which the expert bases an opinion] need not be admissible in evidence"*fn7 if they are of "a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject."

Dr. Daum's opinion, substantiated by her clinical findings and the epidemiological studies that she determined significant, would not have been a "net" opinion, and therefore her testimony at the retrial should not have been precluded. In the case before us we need not, for the reasons stated earlier, set any risk factor limitation at 2.0 or any other arbitrary number. The total basis for the expert's opinion must be scrutinized.

[248 NJSuper Page 457]

For the retrial, we must give an additional cautionary note. The rulings in these cases appear to be predicated upon a notion that there was but a single cause of the particular cancer condition. There is no requirement in the law that a single cause be found and proven. All that is required is that the plaintiff show that a defendant's conduct or defective product was a proximate cause of the condition, i.e., a substantial factor in bringing the condition about. Brown v. United States Stove Co., 98 N.J. 155, 171, 484 A.2d 1234 (1984); Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 21, 568 A.2d 1196 (App.Div.1989). Apparently, the "more likely than not" or 51% standard has in this and its companion cases been thought of as applying to asbestos exposure as the single cause of the disease, rather than to the proof of a significant factor in bringing about the disease. We do not tell a jury that a significant factor must be one that is 5%, 15%, 30% or 40%; we merely tell a jury that it must be "significant."*fn8

Putting this principle into context, plaintiff seeks to show that the extensive exposure to asbestos*fn9 was a significant factor in the causation of the colon cancer. Even though there may have been other causative factors, proof of that proposition is what must be shown to a reasonable degree of medical probability. Assuming a jury finds, for example, a 30% factor is "significant," plaintiff must show that it was more likely than not that this 30% factor was present in his case.

[248 NJSuper Page 458]

The summary judgment entered in favor of defendants is reversed, and this matter is remanded to the Law Division for further proceedings in accordance with this opinion.

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