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Schulz v. Celotex Corp.

argued: June 4, 1991.

CATHERINE SCHULZ, EXECUTRIX OF THE ESTATE OF ROBERT SCHULZ (DECEASED), APPELLANT
v.
CELOTEX CORPORATION; KEENE CORPORATION; OWENS CORNING FIBERGLAS CORP.; OWENS ILLINOIS, INC; NATIONAL GYPSUM; H.K. PORTER COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.; CRANE PACKING; JOHN CRANE HOUDAILLIE, INC.; FLINKOTE COMPANY; GARLOCK, INC.; PORTER HAYDEN COMPANY; ROCK WOOL MANUFACTURING CO.; EAGLE PICHER INDUSTRIES, INC.; MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND



Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 87-01412.

Sloviter, Chief Judge, and Greenberg and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge

The district court struck the testimony of an attending physician because he did not couch his diagnosis on causation in terms of reasonable medical certainty. We determine that under either the federal or state rule of evidence, the testimony in this diversity asbestos case was sufficiently definite to be admissible. Because that evidence supplied the causation link necessary to carry the plaintiff's case to the jury, the grant of a directed verdict for the defendants was erroneous and will be reversed.*fn1 We also conclude that the plaintiff's failure to designate parts of the record to combat the motion for summary judgment filed by one of the defendants precludes relief from that judgment.

Plaintiff's decedent, Robert Schulz, alleged that he contracted asbestosis and lung cancer as a result of exposure to asbestos products manufactured by defendants. He died after a complaint was filed in the district court, but before trial. Plaintiff continued the action on her own behalf and as representative of her husband's estate.

At trial, plaintiff produced the video-deposition testimony of Dr. Allan Freedman describing his examination and treatment of the decedent. Dr. Freedman's diagnosis was that the decedent had contracted asbestosis and that condition along with cigarette smoking caused a fatal lung cancer.

The district court granted defendants' motion to strike Dr. Freedman's testimony because he did not qualify his statements on causation in terms of reasonable medical certainty. After the physician's statements were stricken, the court directed a verdict for defendants because no evidence of causation remained in the record.

Before the trial began, Rock Wool, one of the defendants, asked for summary judgment arguing that plaintiff had not produced any evidence that the deceased had come into contact with its products. The court denied the motion, with leave to renew it at trial. Rock Wool did so, and plaintiff responded with only a general assertion that summary judgment was inappropriate. The district court granted the motion during the trial.

I.

During his lengthy deposition, Dr. Freedman, a specialist in pulmonary disorders, detailed his training and experience in the field. There is no dispute about his qualifications as an expert.

The doctor first examined the decedent in July of 1986 and, together with other physicians in the fields of oncology, radiology, and surgery, treated Mr. Schulz until his death in 1988. In addition to observations from physical examinations, Dr. Freedman conducted tests, examined certain x-rays, and reviewed findings made by other physicians who had treated the decedent.

In explaining his interpretation of x-rays, Dr. Freedman said, "the most likely cause for that is his asbestos exposure and that most likely diagnosis for that x-ray finding would be pulmonary asbestosis." At a later point the doctor was asked, "did you have the occasion, Doctor, to come to any findings or impressions with regard to this [initial] examination, and as a result of your tests and review and analysis of the information and medical history?" The doctor replied that he informed the referring physician and the decedent of several findings: "The first conclusion was with respect to the presence of obstructive airway disease, and that would be emphysema, which I related to cigarette smoking. The second was with respect to the presence of asbestos-related pleura abnormality, and this is pleural plaques. And the third is the diagnosis of mild asbestosis."

In reviewing an x-ray taken at a later date, the doctor referred to "interstitial disease that's present," and said, "In this case, I conclude this his ...


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