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Jones v. Owens-Corning Fiberglas Corp.

March 8, 1996

ANNA M. JONES, INDIVIDUALLY, AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CLAYTON C. JONES, DECEASED, PLAINTIFF-APPELLANT,
v.
OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-RESPONDENT, AND E.I. DUPONT DE NEMOURS AND COMPANY, INC.; OWENS-ILLINOIS, INC.; GAF CORPORATION, IN ITSELF AND AS SUCCESSOR TO RUBBEROID CORP.; KEENE CORPORATION, IN ITSELF AND AS SUCCESSOR TO BALDWIN-EHRET HILL, INC.; CELOTEX CORPORATION, IN ITSELF AND AS SUCCESSOR TO PHILIP CAREY MFG. CO.; AC AND S INC.; EAGLE-PICHER INDUSTRIES, INC.; FIBREBOARD CORPORATION; PITTSBURGH CORNING CORPORATION, IN ITSELF AND AS SUCCESSOR TO UNARCO; H.K. PORTER COMPANY; ROCK WOOL MANUFACTURING COMPANY; SOUTHERN TEXTILE CO., FORMERLY SOUTHERN ASBESTOS CO., A DIVISION OF THE H.K. PORTER COMPANY; DELAWARE INSULATION COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.; GARLOCK INC.; FLEXITALLIC GASKET CO.; ATLAS ASBESTOS CO.; J.W. ROBERTS, LTD., A DIVISION OF TURNER & NEWALL, LTD.; JOHN DOE CORPORATIONS (1-50); WILLIAM E. NEELD, JR., M.D.; G.F. REICHWEIN, M.D.; JOHN DOE, M.D.; AND RICHARD ROE, M.D., DEFENDANTS.



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

Approved for Publication March 8, 1996.

Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

Plaintiff Anna M. Jones, Individually and as Administratrix Ad Prosequendum of the Estate of Clayton C. Jones, appeals the dismissal of her complaint seeking damages attributable to the death of her husband as a result of colon cancer allegedly caused by exposure to asbestos. As of the date of trial, plaintiff's claims against all other named defendants had been dismissed voluntarily or as a result of orders granting summary judgment, or had been settled. The only defendant remaining in the case was defendant Owens-Corning Fiberglas Corporation (Owens or defendant), a manufacturer of asbestos products.

After the jury was selected, but prior to opening statements, defendant requested a hearing pursuant to N.J.R.E. 104 to determine the admissibility and adequacy of plaintiff's expert testimony, which plaintiff planned to introduce at trial through a de bene esse deposition taken six days prior to trial. Defendant also moved for summary judgment contending that plaintiff's medical proof of the cause of decedent's colon cancer was inadequate and that without medical evidence of causation, defendant was entitled to a dismissal of plaintiff's complaint. The trial Judge reviewed the expert's report, the transcript of the expert's deposition testimony, and medical journals submitted in support of the medical opinion of plaintiff's expert. The Judge allowed oral argument but concluded that an N.J.R.E. 104 hearing would be unnecessary. The Judge found that the proposed expert evidence was insufficient to support plaintiff's claim and granted summary judgment to defendant.

We have considered the same information utilized by the trial Judge and have compared that material to the standards enunciated in Landrigan v. Celotex Corp., 127 N.J. 404, 605 A.2d 1079 (1992), and Grassis v. Johns-Manville Corp., 248 N.J. Super. 446, 591 A.2d 671 (1991). We conclude that plaintiff's proposed medical evidence was sufficient to withstand a motion for summary judgment. We reverse and remand this matter for trial.

I

Decedent died on November 22, 1987, at the age of seventy, as a result of colon cancer that had spread to his lungs. He had been employed by E.I. DuPont de Nemours & Company, Inc., for over thirty years as a laborer and truck driver. As one of his job functions, decedent had been required to "load asbestos debris and also to bury asbestos waste," as a result of which he was "exposed to asbestos dust pollution." During argument at the motion hearing on November 29, 1994, plaintiff's attorney asserted that he was prepared to submit evidence that Jones' "exposure to asbestos was extremely heavy for approximately thirty plus years of occupational employment."

In 1969 or 1971, Jones underwent a partial gastrectomy and gastrojejunostomy to correct medical problems related to "peptic ulcer disease."

In 1974, at the age of fifty-seven, Jones was diagnosed as having pulmonary asbestosis. At that time, he discontinued his years-long habit of smoking three to four cigarettes per day. He did not consume alcoholic beverages. His family medical history indicated that his mother and father had died of "natural causes."

In May 1985, Jones was diagnosed with "carcinoma of the cecum" or cancer of the colon. By August 1987, the cancer had spread to his lungs and brain, and he died a few months later.

II

Plaintiff's only expert witness was Dr. Howard Frumkin, a licensed physician specializing in occupational medicine, who has also received a doctoral degree in epidemiology. In 1988, Frumkin collaborated with Dr. Jesse Berlin and published an article entitled "Asbestos Exposure and Gastrointestinal Malignancy Review and Meta-Analysis" in the American Journal of Industrial Medicine.

The article reflected Frumkin's research into, inter alia, colon cancer causation by way of a "meta-analysis," that is, by way of "a study that analyzes the results of other studies in a systematic manner." As a result ...


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