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Landrigan v. Celotex Corp.

May 6, 1992

ANGELINA LANDRIGAN, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF THOMAS LANDRIGAN, DECEASED; AND ANGELINA LANDRIGAN, INDIVIDUALLY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
THE CELOTEX CORPORATION, SUCCESSOR IN INTEREST TO PHILIP CAREY MANUFACTURING CO., PHILIP CAREY CORP., BRIGGS MANUFACTURING CO., AND PANACON CORP.; RAYMARK CORPORATION, SUCCESSOR TO AND IN LIEU OF RAYBESTOS-MANHATTAN, INC.; RAYMARK INDUSTRIES, INC., SUCCESSOR TO AND IN LIEU OF RAYBESTOS-MANHATTAN, INC.; NICOLET, INC., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY & MATTISON COMPANY; EAGLE-PICHER INDUSTRIES, INC.; FLINTKOTE COMPANY; GAF CORPORATION, SUCCESSOR BY MERGER TO THE RUBEROID CO.; ARMSTRONG CORK COMPANY; PITTSBURGH CORNING CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO UNARCO, INC.; KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BALDWIN-EHRET HILL CO.; BALDWIN HILL CO. AND EHRET MAGNESIA MANUFACTURING CO., KEENE BUILDING PRODUCTS CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BALDWIN-EHRET HILL CO., BALDWIN HILL CO. AND EHRET MAGNESIA MANUFACTURING CO.; SOUTHERN TEXTILE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SOUTHERN ASBESTOS COMPANY, THE THERMOID COMPANY, CHARLOTTE WORKS, CAROLINA ASBESTOS CO., INC., DAVIDSON WORKS, RUSSELL MANUFACTURING CO. AND BENNETTVILLE WORKS; H.K. PORTER COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO SOUTHERN TEXTILE CORPORATION, SOUTHERN ASBESTOS COMPANY, THE THERMOID COMPANY, CHARLOTTE WORKS, CAROLINA ASBESTOS CO., INC., DAVIDSON WORKS, RUSSELL MANUFACTURING CO. AND BENNETTVILLE WORKS; FIBREBOARD CORPORATION, SUCCESSOR TO PABCO; PACOR, INC., INDIVIDUALLY AND AS SUCCESSOR TO PHILADELPHIA ASBESTOS CORPORATION AND PHILADELPHIA ASBESTOS COMPANY; YORK INDUSTRIES, INC., A/K/A YORK INSULATION CO.; GARLOCK, INC.; PORTER HAYDEN COMPANY; S. FRANKLIN & SONS; FIBER FLEX, INC.; WALLWORK-SOMERSET COMPANY; VIKING INSULATION COMPANY; SJB PIPE COMPANY; WALLWORK BROS. COMPANY; BAYONNE PLUMBING SUPPLY COMPANY; INTERNATIONAL-MATEX TANK TERMINALS, A/K/A BAYONNE TERMINAL WAREHOUSE CORPORATION, A/K/A BAYONNE INDUSTRIES, INC.; ROBERT A. KEASBEY COMPANY; GALL AND SANDERS; ALBERT DOE; BEN DOE; CHARLES DOE; DONALD DOE; EUGENE DOE; FRED DOE; GEORGE DOE; JOHN DOE; KEN DOE; LARRY DOE; AND MICHAEL DOE, DEFENDANTS, AND OWENS ILLINOIS, INC.; OWENS-CORNING FIBERGLASS CORPORATION, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 243 N.J. Super. 449 (1990).

For reversal 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.

Pollock

Plaintiff, Angelina Landrigan, sued defendants Owens-Corning Fiberglass Corporation and Owens Illinois, Inc. for the personal injuries and death of her husband, Thomas Landrigan, claiming that exposure to defendants' asbestos had caused his death from colon cancer. She also sued The Celotex Corporation, against which all actions are stayed because it is in bankruptcy. Reference in this opinion to "defendants" is to Owens-Corning Fiberglass Corporation and Owens Illinois, Inc. To prove causation, plaintiff relied on the testimony of two witnesses, a medical doctor and an epidemiologist. The trial court rejected both experts' Conclusions. It rejected the medical doctor's Conclusion as a "net opinion," unsubstantiated by facts or reasons. The court ruled that the epidemiologist, not being a physician, was unqualified to render an opinion that asbestos exposure caused cancer in a specific individual. The Appellate Division affirmed. 243 N.J. Super. 449, 579 A.2d 1268 (1990). We granted certification, 127 N.J. 324, 604 A.2d 599 (1990), and now reverse and remand to the Law Division.

-I-

Decedent worked as a maintenance man and pipe insulator at the Bayonne Terminal Warehouse from 1956 until December 1981, when he was diagnosed as suffering from colon cancer. From 1956 until 1972, he allegedly worked with insulation containing asbestos supplied by defendants. In January 1982, he underwent surgery but the cancer spread, and he died in December 1982. The cause of his death was adenocarcinoma, "a malignant adenoma arising from a glandular organ," Taber's Cyclopedic Medical Dictionary 36 (15th ed. 1985), the most common type of colon cancer. Generally speaking, colorectal cancer is the second most common cancer in the United States, striking 140,000 persons and causing 60,000 deaths annually. Colonoscopy Recommended, Am. Med. News, Sept. 16, 1991, at 39. In 1984, plaintiff filed this survivorship and wrongful death action, asserting that exposure to asbestos had caused decedent's death.

On defendants' motions, the trial court directed plaintiff to elect to try her claims under a strict liability theory predicated on defendants' failure to warn, in which defendants would be barred from proving that they had neither known nor could have known that asbestos was dangerous (the state-of-the-art defense), see Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982)), or under a combined strict liability and negligence theory. The court ruled that if plaintiff proceeded under the combined theory, it would not charge that knowledge of the dangers of asbestos was imputed to defendant. Plaintiff elected to proceed solely under the strict liability theory, thereby barring defendants' state-of-the-art defense.

At the trial in 1989, plaintiff relied on two experts, Dr. Joseph Sokolowski, Jr., a physician who is board certified in both internal medicine and pulmonary medicine, and Dr. Joseph K. Wagoner, an epidemiologist and biostatistician but not a physician. Dr. Sokolowski never treated or examined decedent. He based his Conclusions on a review of decedent's history of

exposure to asbestos, the absence of other risk factors in decedent's history, and on various epidemiological, animal, and in vitro studies. Stating that physicians regularly rely on epidemiological studies, Dr. Sokolowski testified that asbestos can cause colon cancer in humans. He also described the path asbestos fibers take from inhalation to the gastrointestinal tract.

Dr. Sokolowski testified that exposure to asbestos was the cause of decedent's colon cancer. He relied on the ability of asbestos to cause colon cancer in humans, decedent's exposure to asbestos, and the absence of other risk factors, such as a high-fat diet, excessive alcohol consumption, a family history of colon cancer, and prior bowel disease. Dr. Sokolowski testified further that decedent would not have contracted colon cancer if he had not been exposed to asbestos.

Plaintiff also offered Dr. Wagoner to testify that asbestos exposure had caused decedent's colon cancer. After conducting a hearing pursuant to Evidence Rule 8, the trial court ruled that as an epidemiologist and not a physician, Dr. Wagoner was not qualified to testify that asbestos had caused decedent's cancer. The court, however, permitted the witness to testify about epidemiological methods and studies linking colon cancer to asbestos exposure. It also allowed Dr. Wagoner to state his opinion that asbestos causes colon cancer in humans. Finally, Dr. Wagoner testified that a low-fiber diet is associated with an increased risk of colon cancer, and that smoking, hemorrhoids, arthritis, and moderate alcohol consumption are not so associated.

At the close of plaintiff's case, the trial court granted defendants' motions for a directed verdict. See Rule 4:40-1. The court ruled that Dr. Sokolowski's testimony was a net opinion because it was supported only by epidemiological studies and the exclusion of other risk factors, explaining:

Epidemiological evidence can only be used to show that a defendant's conduct increased a plaintiff's risk of injury to some measurable extent but it cannot be used to answer the critical question did the asbestos cause Mr. Landrigan's

colon cancer. Judge Deighan so stated in the case of [ Thompson v. Merrell Dow Pharmaceuticals, 229 N.J. Super. 230 [551 A.2d 177] (App.Div.1988)].

The court also rejected plaintiff's proffer concerning Dr. Wagoner's testimony, stating:

Dr. Wagoner is not a medical doctor. He never prescribed a course of treatment for cancer patients. He conducted no human research. Dr. Wagoner teaches that if you can't find the cause of a disease by medical observation and you can find no other cause for it, you then go to these studies that have been conducted and pick a cause from a known risk or an increased risk factor.

Again, I repeat that epidemiology cannot be used to predict an occurrence of health related events for a given specific individual. Therefore, it is this Court's decision that the colon cancer claim of Mr. Landrigan and Mrs. Landrigan is dismissed as to all defendants.

Concerning Dr. Wagoner, the Appellate Division apparently relied on the fact that he had used only epidemiological methods:

Dr. Wagoner's qualifications as an epidemiologist and biostatistician did not endow his opinion as to proximate cause with the expertise necessary to "assist the trier of fact to understand the evidence or determine [the] fact in issue" [quoting Evid.R. 56(2)]. As we noted earlier, epidemiology deals with the movement of different diseases within human populations. It does not address questions of specific causation in the individual case. While epidemiological information, taken together with other medical facts, may be useful to a physician in forming a particular diagnosis or in determining the etiology of an illness, court determinations as to such matters cannot be based on an expert opinion which rests on the application of statistical skills and studies alone. [243 N.J. Super. at 462, 579 A.2d 1268.]

Epidemiology, then, relates to two aspects of plaintiff's proof. For the physician, Dr. Sokolowski, epidemiological studies provided some of the facts on which he relied to conclude that asbestos exposure had caused decedent's colon cancer. Concerning Dr. Wagoner, the epidemiologist, the main issue was whether he was qualified as a non-physician to render an opinion that the exposure had been the cause of decedent's cancer.

-II-

-A-

In recent years, we have sought to accommodate the requirements for the admission of expert testimony with the need for

that testimony. See Rubanick v. Witco Chem. Corp., 125 N.J. 421, 593 A.2d 733 (1991); Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990). Nowhere is that accommodation more compelling than on the issue of causation in toxic-tort litigation concerning diseases of indeterminate origin. Many such injuries remain latent for years, are associated with diverse risk factors, and occur without any apparent cause. Steve Gold, Note, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence, 96 Yale L.J. 376, 376 (1986) (hereinafter Gold). In that context, proof that a defendant's conduct caused decedent's injuries is more subtle and sophisticated than proof in cases concerned with more traditional torts.

Evidence Rule 56(2), which governs the admission of opinion testimony, states in relevant part:

A witness qualified pursuant to Rule 19 as an expert by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue.

The Rule imposes three basic requirements: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984).

Our focus is on the last two requirements, that the testimony is reliable and that the witness is qualified to offer the intended testimony. In Rubanick, which we decided after the Appellate Division had rendered its opinion in this case, we modified the standard for the admission of expert testimony, holding that

in toxic-tort litigation, a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field. The ...


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