Decided: May 6, 1992.
PETER CATERINICCHIO AND ANNE CATERINICCHIO, HIS WIFE, PLAINTIFFS-APPELLANTS,
PITTSBURGH CORNING CORP., PITTSBURGH CORNING CORP., AS SUCCESSOR-IN-INTEREST TO UNARCO INDUSTRIES, INC., A.P. GREEN REFRACTORIES CO., SUBSIDIARY OF U.S. GYPSUM, METROPOLITAN REFRACTORIES, DIVISION OF A.P. GREEN REFRACTORIES CO., M.W. KELLOGG CONSTRUCTORS, QUIGLEY CO., SUBSIDIARY OF PFIZER, INC., MADSEN & HOWELL, INC., JOHN DOE $1 TO $15 (FIFTEEN UNIDENTIFIED MANUFACTURERS AND SUPPLIERS OF ASBESTOS FIBER AND ASBESTOS COVERED EQUIPMENT TO PLAINTIFF'S PLACE OF EMPLOYMENT), DEFENDANTS. PETER CATERINICCHIO AND ANNE CATERINICCHIO, HIS WIFE, PLAINTIFFS-APPELLANTS, V. CAREY CANADA, INC., A/K/A CAREY CANADIAN MINES, PHILIP CAREY, PHILIP CAREY MFG. CO., CELOTEX, CELOTEX, AS SUCCESSOR-IN-INTEREST TO PHILIP CAREY AND PHILIP CAREY MFG. CO., EAGLE-PICHER INDUSTRIES, GAF, RUBEROID, GAF, AS SUCCESSOR-IN-INTEREST TO RUBEROID, ARMSTRONG WORLD INDUSTRIES, ARMSTRONG CONTRACTING & SUPPLY, ROBERT A. KEASBEY CO., OWENS-ILLINOIS, INC., OWENS-CORNING FIBERGLASS, WOOLSULATE, COMBUSTION ENGINEERING, BABCOCK & WILCOX, C.F. BRAUN, FOSTER WHEELER, ACE ASBESTOS, EMPIRE ACE, GARLOCK, JOHN DOE $1 TO $50 (FIFTY UNIDENTIFIED MANUFACTURERS, SUPPLIERS AND INSTALLERS OF ASBESTOS, ASBESTOS FIBER AND ASBESTOS COVERED EQUIPMENT TO PLAINTIFF'S PLACES OF EMPLOYMENT), DEFENDANTS, AND H.W. PORTER, A/K/A PORTER-HAYDEN CO., INC., DEFENDANT-RESPONDENT
On certification to the Superior Court, Appellate Division.
For reversal in part, affirmance in part and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Pollock, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
In this appeal, as in Landrigan v. Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992), also decided today, we consider the applicable rules for the admission of expert testimony in toxictort litigation. The specific issue is whether the trial court was correct in striking as an inadmissible "net opinion" the testimony of a physician who was plaintiff's sole expert on causation of colon cancer. The Appellate Division affirmed that ruling. In a second ruling, the trial court directed a verdict for plaintiff on his claim that pleural thickening and pleural plaques constituted compensable injuries. The Appellate Division reversed that ruling. We granted plaintiff's petition for certification, 126 N.J. 326, 598 A.2d 885 (1991), and now reverse that part of the judgment of the Appellate Division pertaining to plaintiff's colon-cancer claim, affirm that part concerning his claim for pleural thickening and pleural plaques, and remand the matter to the Law Division.
For many years, plaintiff, Peter Caterinicchio, worked with asbestos products in the course of his employment as an insulator, pipefitter, and line mechanic. His most significant exposure to asbestos occurred during a sixteen-year period in which he worked as an insulator at the Exxon Bayway Refinery in Linden, New Jersey. In 1985, plaintiff was diagnosed as having colon cancer, and underwent surgery involving the removal of a substantial portion of his colon. Subsequently, he was diagnosed as also suffering from asbestosis and pleural fibrosis. In 1987, plaintiff filed this action, asserting that exposure to asbestos had caused his diseases. Anne Caterinicchio, his wife, sued per quod; as used in this opinion, the term "plaintiff" refers to Mr. Caterinicchio only. Before trial, plaintiff settled with all defendants except H.W. Porter (also known as Porter-Hayden Co., Inc.) (Porter) and Owens-Corning Fiberglass
Corporation (Owens-Corning). Owens-Corning settled during trial.
At the trial in 1989, plaintiff relied on two experts, Dr. Albert Miller, a physician who is board certified in both internal and pulmonary medicine, and Dr. William J. Nicholson, an industrial hygienist and epidemiologist. Relying on various epidemiological studies, including a landmark study by Dr. Irving Selikoff, see Irving Selikoff et al., Mortality Experience of Insulation Workers in the United States and Canada, 330 Annals N.Y. Acad. Sci. 91 (1979), cited in Landrigan, supra, 127 N.J. at 417, 605 A.2d at 1086, Dr. Nicholson concluded that the insulators were subject to a risk factor for colon cancer of at least 1.59, as compared with the 1.55 ratio that Dr. Sokolowski estimated in trial court testimony in Landrigan. See 127 N.J. at 417, 605 A.2d at 1086. Although he found a causal relationship between asbestos exposure and colon cancer, Dr. Nicholson did not address the question whether asbestos was responsible for plaintiff's cancer. He also quantified the range of asbestos exposure of insulators as a class, and said that plaintiff's exposure put him in the high end of the range.
Through Dr. Miller's testimony, plaintiff intended to establish the specific connection between asbestos exposure and colon cancer in his case. Relying on epidemiological studies, plaintiff's employment history, and the absence of a history of colon cancer in Caterinicchio's relatives, Dr. Miller concluded that plaintiff's colon cancer was causally related to his asbestos exposure. Subsequently, when plaintiff moved to reopen his case to present more conclusive causation testimony by Dr. Miller, defendant Porter stipulated that "if called Dr. Miller would testify that this colon cancer was caused by asbestos through [sic] a reasonable degree of medical certainty."
At the close of plaintiff's case, defendants moved to dismiss the colon-cancer claim because of plaintiff's failure to
establish the requisite causal connection between the cancer and his exposure to asbestos. In granting that motion, the trial court stated:
Number one, I'm going to assume for the moment that Dr. Miller has testified sufficiently that in his opinion the epidemiological reports that he referred to indicated that colon cancer is caused by asbestos exposure, although he testified both ways that the epidemiological studies showed an increased risk.
I'm going to assume that later Dr. Miller did say that it was his opinion from a reasonable degree of medical certainty that the plaintiff's colon ...
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