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Daisey v. Keene Corp.

Decided: November 1, 1993.

WILLIS DAISEY AND EDWARD DAISEY, EXECUTOR OF THE ESTATE OF CARRIE DAISEY, PLAINTIFFS-APPELLANTS,
v.
KEENE CORPORATION AND OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANTS-RESPONDENTS, AND RAYMARK INDUSTRIES, INC.; GAF CORPORATION; CELOTEX CORPORATION; H.K. PORTER COMPANY; SOUTHERN TEXTILE CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; KEENE CORPORATION; OWENS-ILLINOIS GLASS COMPANY; PITTSBURG CORNING CORPORATION; OWENS-CORNING FIBERGLAS CORPORATION; JOHN DOE CORPORATIONS ONE THROUGH TEN, DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Petrella, Baime and Conley. The opinion of the court was delivered by Conley, J.A.D.

Conley

Following a five-day trial on plaintiffs' asbestos personal injury action, the jury found that plaintiff Willis Daisey did not have an asbestos-related injury. Plaintiffs appeal that verdict and we affirm.

We need not recount in detail all of the evidence presented during the trial. It is undisputed that during his employment from 1939 to 1964, plaintiff had been substantially exposed to asbestos. It is also undisputed that that occupational asbestos exposure has resulted in pleural thickening in his lungs. What injuries plaintiff has sustained as a result of that thickening and whether any other conditions and injuries are related to his asbestos exposure, was hotly contested.

Dr. Guidice, plaintiffs' expert, testified that prior chest x-rays showed bilateral interstitial fibrosis, pleural thickening and pleural plaques, all related to the asbestos exposure. He noted that pulmonary function testing showed obstructive lung disease caused by both cigarette smoking and asbestos exposure. He explained that plaintiff's productive cough and occasional wheezing were not attributable to asbestos exposure. But he concluded that plaintiff's shortness of breath was consistent with occupational asbestos exposure. Dr. Guidice diagnosed plaintiff as suffering from pleural asbestosis, asbestosis pleural plaque formation and parenchymal asbestosis.

Defendants' medical expert, Dr. Alan Pope, agreed with Dr. Guidice that the prior x-rays showed evidence of pleural thickening and interstitial fibrosis. He disagreed that they showed anything more. Dr. Pope acknowledged that some of the pleural thickening was associated with plaintiff's occupational asbestos exposure. When questioned whether "when we talk about pleural asbestosis or pleural asbestos disease, we're talking about scarring in the pleura caused by asbestos fibers," Dr. Pope responded in the affirmative. However, he disagreed that the interstitial fibrosis was evidence of asbestosis and opined that it was caused by non-asbestos-related obstructive lung disease. Dr. Pope further

opined that plaintiff's cough, chronic bronchitis and shortness of breath were not asbestos-related conditions but were caused by plaintiff's earlier cigarette smoking. Pulmonary function tests, he said, did not show evidence of an asbestos-related disease. The jury obviously found Dr. Pope's testimony credible.

I.

After all the evidence was presented, plaintiffs moved for a directed verdict on an asbestos-related injury, pointing out that both Dr. Guidice and Dr. Pope agreed plaintiff had pleural thickening related to his asbestos exposure. Plaintiffs contend the trial Judge's denial of that application was error. We disagree. See Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 437, 605 A.2d 1092 (1991); Sullivan v. Combustion Engineering, 248 N.J. Super. 134, 140, 590 A.2d 681 (App.Div.), cert. denied, 126 N.J. 341, 598 A.2d 897 (1991). It is for the jury to determine whether pleural thickening constitutes an injury. Ibid.

Caterinicchio is dispositive. There, as here, the medical experts agreed that plaintiff had pleural thickening related to asbestos exposure. Plaintiff's expert opined that plaintiff suffered from asbestos-related disease while the defense expert concluded that plaintiff's pleural changes caused no disability or impairment. The trial court granted plaintiff's motion for a directed verdict, holding that pleural thickening constituted an injury as a matter of law, and allowed the jury to determine only the extent and nature of the injury. We reversed, holding that the trial court erred in removing the question of liability for pleural thickening from the jury. Observing that "[p]leural thickening . . . are benign changes of the pleura," 127 N.J. at 434, 605 A.2d 1092, the Supreme Court affirmed. In doing so, it adopted the reasoning of the United States Court of Appeals for the Third Circuit in Howell v. Celotex Corp., 904 F. 2d 3, 5 (3rd Cir.1990) where that court concluded:

[T]he presence of pleural thickening may not, alone, mandate a jury finding of compensable injury for an otherwise healthy plaintiff. We conclude that the substantial medical disagreement over the classification of pleural thickening

prevents us from declaring it to be an injury as a matter of law. The question is factual and remains within the province of the trier of fact.

[ Caterinicchio, 127 N.J. at 437, 605 A.2d 1092 (quoting Howell, 904 F. 2d at 5)].

Like the doctors in Caterinicchio, the experts here agreed plaintiff had pleural thickening that was related to his asbestos exposure. But Dr. Pope did not agree with Dr. Guidice that such thickening was symptomatic. Although he responded affirmatively to the question "when we talk about pleural asbestosis or pleural asbestos disease, we're talking about scarring in the pleura caused by asbestos fibers," his testimony makes it plain that he did not believe that that condition caused an injury or disability. Dr. Pope testified that the chronic fibrosis seen on plaintiff's x-rays was probably not the result of asbestos exposure. He stated that the results of plaintiff's pulmonary function tests were within normal limits and opined that plaintiff suffered impairment of his lung functioning because of his smoking history, not because of his asbestos exposure. He also testified that plaintiff's shortness of breath and productive cough was caused by cigarette smoking, not asbestos exposure.

To be sure, Dr. Guidice opined differently. But it was not for the court to remove that factual dispute from the jury. What plaintiffs overlook is that the condition of pleural thickening, though asbestos related, cannot be said, as a matter of law, to always cause injury. If there is medical dispute as to that, as there was here, the jury must resolve it.

II.

Reports of x-rays taken August 20, 1982, November 8, 1983 and July 16, 1986 were admitted into evidence during the trial. The 1986 report found:

Lungs are hyperaerated and there is some prominent interstitial markings in the lower lung fields most likely related to chronic obstructive pulmonary disease with interstitial fibrosis. There is a suggestion of pleural plaque in the periphery of the left mid lung field.

The 1982 report found "chronic interstitial fibrosis," as did the 1983 report. Both Drs. Guidice and Pope, during their de bene esse deposition testimony, stated that they did not consider these reports in arriving at their opinions since each reviewed the actual x-rays themselves. On direct examination of Dr. Guidice, in response to a question whether he incorporated the observations of the radiologists, the doctor said:

Well, I did review all the x-rays from the x-ray reports that were available, and what was important enough for me to place in my report was the fact that the opinions shared by four different radiologists that I reviewed, four different reporting radiologists, were exactly ...


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