IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
December 16, 1998
JOAN MAERTIN, ET AL.,
ARMSTRONG WORLD INDUSTRIES, INC.,
AMERICAN MINERAL SPIRITS COMPANY, MONSANTO COMPANY, AND SOLUTIA, INC.
The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
HONORABLE JEROME B. SIMANDLE
SIMANDLE, District Judge:
This lawsuit was instituted by people who were exposed to polychlorinated biphenyls ("PCBs") while working at Burlington Community College ("BCC") and who allege that they have either contracted, or fear contracting, cancer as a result of that exposure. This Court, in an Opinion and Order dated March 16, 1998, granted summary judgment against some of the plaintiffs who sued on the basis of their fear of getting cancer. Now before the Court are the motions of defendant Armstrong World Industries, Inc. and third-party defendants Monsanto Company and Solutia, Inc. for summary judgment against the remaining "fear of cancer" plaintiffs. For the reasons discussed herein, the motions for summary judgment will be granted in part and denied in part.
The factual background giving rise to the suit has been discussed at length in prior opinions. A short recitation of the factual background, as well as a more detailed explanation of the procedural background of this case, will give the setting for the rulings on the instant motions.
All of the plaintiffs in this case worked at, or were married to people who worked at, Burlington Community College ("BCC") and spent time in a building at BCC called the Parker Center. Following a fire in the Parker Center in 1985, testing by the New Jersey Department of Health ("NJDOH") and other governmental agencies revealed that the air in the Parker Center contained PCBs. Further investigation demonstrated that the Travertone Sanserra ceiling tiles in the Parker Center, manufactured by Armstrong World Industries, Inc. ("Armstrong"), were the source of the PCBs. More specifically, the PCBs were contained in the Aroclor 1254, which was found in the fire retardant coating on those tiles, manufactured by third party defendant Monsanto Company ("Monsanto") and distributed by third-party defendant American Mineral Spirits Co. ("AMSCO"). Armstrong was notified that the tiles were the source of PCBs and assumed responsibility for remediating the affected portions of the Parker Center.
On March 31, 1995, approximately ten years after the PCBs were discovered following the Parker Center fire, fifty-five plaintiffs filed suit against Armstrong: twelve claimed to have been diagnosed with cancer, four were spouses of cancer plaintiffs, twenty-six claimed to experience a fear of contracting cancer in the future, and thirteen were spouses of "fear of cancer" plaintiffs. *fn1
On July 26, 1995, this Court granted Armstrong's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) as to the thirteen spouses of "fear of cancer" plaintiffs. However, this Court ruled that Armstrong's motion to dismiss the twenty-six "fear of cancer" claims was premature, as discovery might bear evidence that these twenty-six plaintiffs had either sustained physical injuries as a result of exposure to PCBs or sustained emotional distress so "severe and substantial as to be tantamount to physical harm."
The Complaint was subsequently amended seven times, involving additions and subtractions of plaintiffs, as well as changes to the nature of the various plaintiffs' claims.
Following discovery against the individual plaintiffs, Armstrong filed motions for summary judgment against nine of the "fear of cancer" plaintiffs, and an additional eleven plaintiffs voluntarily dismissed their claims against Armstrong. In an Opinion and Order of March 16, 1998, this Court dismissed those nine "fear of cancer" claims, finding that there was no evidence that any of them had incurred a physical injury from the PCBs or had suffered severe and substantial emotional distress as a result of exposure to the PCBs. Remaining in the case after that March 16 order are fourteen cancer claims, seven cancer- spouse claims, and twelve "fear of cancer" claims. Additionally, there are third party claims by Armstrong against Monsanto and AMSCO, and against the spun-off chemical manufacturing and sale operations of Monsanto, now known as Solutia, Inc. Plaintiffs have asserted no direct claims against the third-party defendants.
Now before this Court are the motions of Armstrong and third-party defendants Monsanto and Solutia, Inc. *fn2 for summary judgment against the remaining twelve "fear of cancer" plaintiffs. *fn3 The remainder of this Opinion discusses whether summary judgment is appropriate as to each of those plaintiffs' claims.
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods. , 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court --that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving parties, here the plaintiffs, "may not rest upon the mere allegations or denials of" their pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non- movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
B. "Fear of Cancer" Claims
1. Legal Standard
This Court has diversity jurisdiction under 28 U.S.C. § 1332, and New Jersey law supplies the rule of decision. As already explained in my Opinion of March 16, 1998, New Jersey allows plaintiffs to recover emotional distress damages based upon a reasonable fear of future disease where their exposure to a toxic substance has resulted in physical injury. See Mauro v. Raymark Indus., Inc., 116 N.J. 126, 137 (1989) (finding a cognizable damages claim where plaintiff's exposure to asbestos caused plaintiff to suffer from a thickening of the pleural cavity, causing the plaintiff to fear that he would eventually develop cancer). See also Herber v. Johns-Mansville Corp., 785 F.2d 79, 85 (3d Cir. 1985) (because there was a physical injury of pleural thickening from exposure, New Jersey Supreme Court would probably "treat emotional distress claim no differently than a pain and suffering claim in a slip and fall case"), reh'g and reh'g en banc denied; Devlin v. Johns- Mansville Corp., 202 N.J. Super. 556, 562-563 (1985) ("plaintiff presently suffering from physical illness as a result of ingestion of pollutants"). In Mauro, the New Jersey Supreme Court expressly declined to decide if plaintiffs could recover for fear of future disease if their exposure to toxic substances had not resulted in physical injury. Id. However, the New Jersey Appellate Division did deal with that issue, holding that in the absence of physical injury, damages are allowed only where the resultant emotional distress is severe and substantial, and where the severity and duration of the emotional distress is tantamount to bodily harm. See Theer v. Philip Carey Co., 256 N.J. Super. 40, 50 (App. Div. 1992), rev'd on other grounds, 133 N.J. 610 (1993); Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 243 N.J. Super. 170, 174 (App. Div. 1990).
Normally, a fear of cancer plaintiff can survive summary judgment by producing evidence sufficient for a reasonable fact finder to find that the plaintiff incurred a physical injury caused by exposure to a toxic substance (here, PCBs) which caused him or her to experience a reasonable fear of future disease. Mauro, 116 N.J. at 136. A plaintiff who has a physical injury from exposure to PCBs sustains a claim for damages based upon fear of cancer simply by producing evidence to support findings that:
1. Plaintiff is currently suffering from serious fear or emotional distress or a clinically diagnosed phobia of cancer.
2. The fear was proximately caused by exposure to PCBs.
3. Plaintiff's fear of getting cancer due to his or her exposure to PCBs is reasonable.
4. Defendants are legally responsible for plaintiff's exposure to PCBs. Devlin, 202 N.J. Super. at 563.
In short, the New Jersey courts have recognized that physical injury caused by exposure to toxic substances gives rise to a reasonableness test for serious emotional fear.
A tougher standard applies if the plaintiff does not have a physical injury from the exposure. Where exposure has not caused physical effects, then a plaintiff who wishes to survive summary judgment must show that his or her emotional distress is not only reasonable, but "severe, substantial, and tantamount to physical injury." Theer, 259 N.J. Super. at 50. See also Ironbound, 243 N.J. Super. at 174.
"Severe, substantial" emotional distress means more emotional distress than is normal in response to receiving news that one has been exposed to toxic substances. "[I]f there is no physical injury and the emotional distress is only that generally arising from the knowledge that a person has been tortiously exposed to a toxic substance, there can be no recovery." Theer, 259 N.J. Super. at 50. It is unfortunate that people are led to worry, lose sleep, and make more frequent trips to the doctor, but these are normal reactions to learning that one has been tortiously exposed to a toxic substance. Under New Jersey law, such sleep loss and actions taken based on apprehension are "understandable, but they are not compensable." Ironbound, 243 N.J. Super. at 174. The relevant question is not whether a plaintiff suffered emotional distress, for some of that is expected; the relevant question is whether that distress was severe, substantial, and tantamount to physical injury. A claim for mere "aggravation, embarrassment, unspecified number of headaches, and sleep loss" does not rise to this level of severe emotional distress. Ironbound, 243 N.J. Super. at 174 (citing Buckley v. Trenton Savings Fund Soc., 111 N.J. 355, 367-68 (1988)).
Neither do trips to the doctor for testing rise to the level of severe emotional distress -- even if it means getting routine tests done annually as a precaution -- if unaccompanied by severe and substantial distress. Such a reaction is foreseeable but not compensable as a physical injury -- that's why a separate tort of medical monitoring exists to allow plaintiffs to recover the costs of this testing from those who tortiously exposed plaintiffs to toxic substances. Under the medical monitoring, or medical surveillance, tort, plaintiffs may recover the costs of future reasonable testing following exposure to toxic substances. If it is necessary, based on medical judgment, for a plaintiff exposed to known carcinogens to undergo annual medical testing to look for signs that cancer might develop, "the probability of the need for medical surveillance is cognizable as part of plaintiffs' claims." Ayers v. Township of Jackson, 106 N.J. 557, 606. "An application of tort law that allows post-injury, pre-symptom recovery in toxic tort litigation for reasonable medical surveillance costs is manifestly consistent with the public interest in early detection and treatment of disease." Id. at 604. Compensation for medical monitoring is a different claim than that for emotional distress, for it does not recompense the plaintiff for non-monetary suffering, but rather for the financial consequences of taking reasonable monitoring measures after having been exposed. Nonetheless, the very existence of the tort shows that New Jersey law recognizes that testing to rule out cancer after exposure to toxic substances is a normal reaction to learning of that exposure. The fact that a particular plaintiff went to see a doctor, told the doctor of the exposure, and had some follow up testing is not, then, considered a sign of severe emotional distress. *fn4
As I stated in my March 16, 1998 Opinion, there is good reason for the rigorous standards adopted by the New Jersey courts in cases where no physical injury was sustained. As the Advisory Committee to the Restatement (Second) of Torts observed:
in the absence of the guarantees of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff . . . [T]o allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all.
Restatement (Second) of Torts § 436 A comment b. To survive summary judgment, then, a plaintiff must present evidence beyond his or her own subjective diagnosis of fear, rather showing that he or she had some sort of lifestyle change as a result of the exposure and due to his or her resultant fear of contracting cancer. For example, it is not enough to say "I'm afraid to leave the house;" coupling that statement with evidence that one actually imposes self-confinement at home due to fear rising to the level to sustain a diagnosis for the abnormal psychological condition of agoraphobia, *fn5 however, might be enough to survive summary judgment. While it is not necessary per se for a plaintiff to exhibit signs of a recognized mental illness or emotional disorder, the fact that a plaintiff seeking recovery for emotional distress sought professional support in dealing with the emotional stress would go far in substantiating plaintiff's claim. It is up to the plaintiff in such a case to do more than just say he or she is scared or fearful. He or she must show how his or her mental health worsened to a level of severe distress, as exhibited through more concrete evidence, such as lifestyle changes or visits to a mental health professional for treatment, rather than claiming simple loss of sleep or trips to the doctor.
In the instant case, the twelve "fear of cancer" plaintiffs have stipulated, in language that was negotiated by all counsel and entered as a Consent Order by this Court on January 15, 1998, that they have not sustained any physical injuries or ailments as a result of exposure to PCBs. More specifically, the twelve plaintiffs agreed to be bound by the following provision:
ORDERED that the above named Plaintiffs are precluded from asserting any claims for physical injuries or disabilities of which they are aware as of the date of this Stipulation in this action: (1) arising from their alleged exposure to PCBs at Burlington County Community College; and (2) relating to their claims for fear of cancer/emotional distress. . .
See Stipulation and Consent Order. *fn6 Accordingly, their claims cannot be judged by the less strict, "reasonable" and "serious fear" standard used when the plaintiffs have physical injuries that resulted from exposure. To survive summary judgment, these twelve plaintiffs must present evidence from which a reasonable jury would be able to find that their emotional distress meets the "severe, substantial, and tantamount to physical injury" standard. Theer, 259 N.J. Super. at 50. The following subsections will address whether each of these plaintiffs have come forward with evidence in opposition to summary judgment from which a reasonable jury could find that they have met that burden.
This Court hastens to add at the outset that it raises no issue with the sincerity of plaintiffs' assertions of real fears, worries, and concerns about the PCB exposure and its potential future health effects. But the Court must also apply the demanding standards of New Jersey law, discussed above, regarding monetary recovery for severe, substantial, and enduring emotional distress experienced by persons who have also stipulated to having no physical injury manifest itself to date.
2. Whether the "Fear of Cancer" Plaintiffs' Claims Survive
a. Plaintiff Patricia Barnes
Patricia Barnes, a registered nurse and counselor, was exposed to the ceiling tiles in the Parker Center between 1972 and 1986. (Barnes Dep. at 30-31.) She learned that the Parker Center was contaminated at a faculty meeting in 1994, and she immediately became concerned, for doctors had discovered that she had a lung lesion the previous spring. (Id. at 53-55.) She claims that she came out of that faculty meeting feeling "gloom and doom," sure that the PCBs were the cause of the lesion, since doctors had not previously been able to explain the lesion. (Id. at 62.) Barnes testified at her deposition that "I felt that I would develop cancer and I would die from it" (id. at 62), just like friends with whom she had worked before they died from cancer. (Id. at 56.)
As a result of learning of her exposure to the PCBs, Barnes testified that she became very depressed and suffered anxiety concerning the high incidence of cancer at BCC. (Id. at 62.) She became very introspective, focusing on her own mortality, and visualizing the PCBs entering her lungs. (Id. at 62, 64.) In October of 1996, she testified, her doctor *fn7 referred her to the Mental Health Department of HIP for counseling about her fears. (Id. at 93.) Her doctor also prescribed her Paxil, and later changed that to Prozac. (Id.) As of the date of her deposition, Barnes had seen a social worker to discuss her depression four times, and Barnes was scheduled to go back once a week until further notice. (Id. at 95.)
Armstrong argues that Barnes has not shown that her distress was severe, substantial, and enduring as to be tantamount to physical injury. Ironbound, 243 N.J. Super. at 174. Specifically, Armstrong points to evidence that Barnes enjoys many hobbies, including reading, shopping, and traveling; that she exercises up to three times a week; and that her weight has remained essentially the same. (Barnes Dep. at 115-116.) Moreover, Armstrong argues, Barnes did not consult a mental health professional until 1 ½ years after becoming a plaintiff in this suit, two months prior to her deposition. (Id. at 92-96.)
Despite Armstrong's arguments, I find that Patricia Barnes has offered evidence sufficient to enable a reasonable fact finder to find that she has suffered severe and substantial emotional distress. The evidence to which Armstrong points could possibly serve to detract from the strength of Barnes' assertion. However, on summary judgment, a court is not permitted to weigh the evidence. The question at this point is not whether Barnes should win on the merits, but merely whether she herself has presented enough evidence which, taken in a light most favorable to her, enables a jury to find that she has suffered severe emotional distress, such that a genuine issue of material fact exists. See Anderson, 477 U.S. at 248. As Barnes has presented evidence that she has been seeing a mental health professional regarding depression and fear of cancer and that Prozac medication has been prescribed as a result of deep depression, she has presented enough evidence to keep her claim alive. A reasonable jury could either reject such evidence for lack of causation or severity, or it could possibly find that this fear, depression, and anxiety are substantial and sustained, deriving from the exposure to defendant's toxic product, resulting in the necessity to take daily anti-depressant medication. Accordingly, defendant Armstrong's motion for summary judgment *fn8 will be denied in as far as it asks this Court to dismiss Barnes' claim for fear of cancer.
b. Plaintiff Patricia Diller
Patricia Diller was exposed to the Armstrong ceiling tiles in the Parker Center between 1978 and 1986. (Diller Dep. at 15-16.) In recent years, she has undergone a major lifestyle change that could be characterized as severe emotional distress. Defendant Armstrong does not deny that Diller has suffered this distress, but merely argues that the emotional distress is clearly a result of other problems in Diller's life, and not a result of exposure to PCBs.
In October of 1992, Diller had sustained a late term miscarriage and, just a year later, gave birth to a three month premature baby with an extremely low birth weight. (Id.) When she learned that she had been exposed to PCBs at BCC, she became concerned, both because she had precancerous lesions and because someone showed her a pamphlet which listed premature births and low birth weight as symptoms connected with PCB exposure. (Id. at 23-24.)
Though no doctor had suggested to her that there was a link between her precancerous lesions or her son Travis's premature birth and PCB exposure, Diller felt that they might be related. (Id. at 57-58.) She testified that she fears cancer. (Id. at 59.) She saw a counselor at the Raphael Meadows Center about five times (once a week) several months after her son Travis's birth, discussing Travis' premature birth, her own fears of cancer, and fears for her son's future. (Id. at 91.) Her reason for seeking counseling was related to her pregnancy problems. When asked at her deposition if she discussed the PCBs at BCC with her counselor, Diller testified that "I think I had mentioned that to her just in general." She stopped going to the counselor, but for no particular reason. (Id.)
Other than seeking therapy for a short time, Diller's lifestyle has faced enormous changes. She no longer sleeps with her husband, but in her son Travis' room. (T. Diller Dep. at 21-24.) She has quit her job. (Id. at 20.) Her relationships with her friends are not nearly as strong as they were before. (Id. at 26.)
However, Ms. Diller's own testimony explains that these lifestyle changes resulted from problems associated with Travis' cerebral palsy, and not from her fear of cancer due to PCB exposure. Diller sleeps in Travis' room so that she can attend to his needs in the night. (Id. at 21-24.) She quit her job because she must take her son to various therapies four days a week. (Id. at 19.) She talks with her friends on the telephone but does not see them often socially because it is difficult for her to spend time away from the house and Travis. (Id. at 26-27.) Moreover, Diller's husband testified that emotionally, neither he nor his wife have ever been the same since the late-term miscarriage in October of 1992, which was at least a year prior to Patricia Diller seeing the pamphlet which linked PCBs and birth problems in her mind. (Id. at 14-15.)
Based on Diller's testimony, no fact finder could reasonably find that she suffered severe and substantial distress as a result of PCB exposure. In fact, Diller's own testimony reconfirms that she sought counseling because of her numerous pregnancy problems; she may have mentioned the PCBs to the counselor, but only in general. She did not seek counseling because of PCB exposure. Moreover, she stopped going to therapy after only five weeks or so for no particular reason, according to her own testimony. No genuine issue of material fact exists, and summary judgment is appropriate. Diller's fear of cancer claim is dismissed.
c. Plaintiff Carole Jenson
Carole Jenson was exposed to the ceiling tiles in the Parker Center between 1974 and 1986 (Jenson Dep. at 7-8), but she did not become aware of the contamination until a faculty meeting in February of 1994. (Id. at 50-51.) She testified that upon learning of the exposure, she became upset and alarmed, and she worried that she would become ill. (Id. at 51.) In response, she read up on PCBs in newspapers and both medical and environmental journals. (Id. at 52.) The issue, she says, depresses her; she will not tell her daughter about it for fear of depressing her as well. (Id. at 50-53.)
Jenson testified that she discussed her PCB exposure and its relationship with breast cancer with her gynecologist because she had an abnormal mammogram in 1994. (Id. at 77-81). As a result, her doctors have requested that she follow up yearly, which Jenson admits is the normal schedule for mammograms. (Id. at 84.) She states that she will be forever nervous, concerned, and fearful about breast cancer and her daughter's health. (Id. at 86, 108-109.) She also says that she is fearful every time she goes into the building at BCC. (Id. at 111, 113.)
However, other than her statements of her self-assessed fear, which are not enough to establish severe emotional distress, see Restatement (Second) of Torts § 436 A comment b, Jenson has offered no evidence that quarrels with Armstrong's contention that she has not suffered severe emotional distress. Jenson has never been to see any mental health professional to address her alleged "fear." (Jenson Dep. at 88.) Moreover, she has not alleged that her lifestyle has been hampered by her fear. She gardens daily in the spring and summer (id. at 91-92), and continues to read, decorate, and travel. (Id. at 91.) She has never looked for another job and was still employed at BCC as of December of 1996, when her deposition was taken. (Id. at 111, 113.)
While Jenson may have presented enough evidence to support a reasonable finding that she has suffered emotional distress as a result of PCB exposure, she simply has not presented the type of evidence which Ironbound and Theer indicate are necessary to support a reasonable finding of emotional distress that is greater than that normally experienced by one who has learned that she was tortiously exposed to a toxic substance. Accordingly, summary judgment shall be granted, and Carole Jenson's "fear of cancer" claim is dismissed.
d. Plaintiff Patricia Kalata
Patricia Kalata was a full-time employee who was exposed to the ceiling tiles in the Parker Center between 1978 and 1986. She first heard about the PCBs in 1994. (Kalata Dep. at 40.) According to Kalata's testimony, news of that information, in conjunction with cancer-related deaths of two of her colleagues, caused her a great deal of concern. (Id. at 12- 13.) She avoided going into the Parker Center as much as possible. (Id. at 13.) Her apprehension and fear over her exposure, she says, was increased by the discovery of a shadow on the bottom of her esophagus because one colleague had just died from esophageal cancer and another from cancer of the liver and stomach. (Id. at 20.) She spoke to her physicians about her exposure to PCBs and the possibility of cancer developing as a result. (Id. at 54-55; 58-59.)
Kalata's own self-serving statements of fear are not evidence of severe emotional distress, see Restatement (Second) of Torts § 436 A comment b, and her discussions with her doctors are evidence of normal distress, not severe distress that is tantamount to physical injury. Rather, Kalata's lifestyle appears to have been largely unchanged by the exposure. She sleeps well, eats well, and has maintained a stable weight. (Kalata Dep. at 65.) Her energy level is good. (Id.) She exercises regularly, just as she did before learning of the exposure: she attends yoga class once or twice a week and walks with a friend once or twice a week for forty minutes. (Id. at 65-66.) Kalata and her husband continue to attend plays, concerts, and movies, and to travel, just as they have done for the past 10-15 years. (Id.) She has remained active in the investment club which she founded. (Id. at 43.)
Moreover, Kalata testified that she has not had a blood test done to see if PCBs were in her blood (id. at 63), and she has never been to see a mental health professional to discuss her fear. (Id. at 103.) Kalata's husband commented that she still has a good sense of humor and energy level, and that everybody loves her and seeks her out as a confidant. (P. Kalata Dep. at 38-39.)
Based on Kalata's own testimony, she has not presented evidence sufficient to enable a reasonable fact finder to find that she has suffered the kind of severe and substantial emotional distress as required under Ironbound and Theer, but rather that she has suffered fears which generally arise from the knowledge that a person has been exposed to a toxic substance -- which fears, no matter how reasonable they may be, are not recoverable. Accordingly, defendant Armstrong's motion for summary judgment will be granted as to Patricia Kalata's claim for fear of cancer.
e. Patricia Geneva Kohler
Geneva Kohler was exposed to the ceiling tiles in the Parker Center from 1971 to 1986, and she testified at her deposition that it is "a little stressful" everyday when she goes into the Parker Center now for work. (Kohler Dep. at 7, 22.) When asked about whether she has gone through a period of depression, Kohler responded by saying, There are certainly times that, you know, I get very discouraged about, you know, some of the things and, you know, we've gone through a very rough time at work with so many people dying and I'm gonna get a little shaken here I'm sure. It's been very frightening to be out there. It really has been extremely frightening. I have seen some extremely close friends die. I have had friends who have contracted very unusual cancers that no one can quite explain. I have been very, very, very close to some of them and it gets -- I don't know whether I can explain it adequately but to go into work everyday and not knowing whether I'm being poisoned, in a way it may sound odd to you but that -- you know, I carried two children, you know, while I was exposed to this and I worry a great deal about what I might have done to them. I'm sorry. (Id. at 116.)
However, despite her own statements of self-reported fear, Kohler has presented no evidence to show that these feelings interfere with her daily routine, nor that they have affected her emotional or mental health to the point that she has required professional assistance. She continues with her hobbies, just as before; she reads, writes, plays with her dog, spends time with her friends and sons, and walks a mile and a half or so around three days a week (id. at 106), in addition to gardening. (Id. at 123.) She sleeps well. (Id. at 108.) Moreover, she has never sought the help of any mental health professional for her distress. (Id. at 124.) In short, Kohler's has presented no evidence to support a finding by a reasonable fact finder that she has suffered severe emotional distress. Accordingly, her fear of cancer claim is dismissed.
f. Plaintiff Joan Maertin *fn9
Joan Maertin worked at BCC from 1976 until June of 1984; after that time, she left her position so that she could become a student at BCC. (Maertin Dep. at 60.) Her husband Lothar ("Lou") also worked at the college. (Id. at 60.) In January of 1994, Maertin's husband died of esophageal cancer. (Id. at 179.)
Shortly after her husband died, on April 23, 1994, Mrs. Maertin learned about the ceiling tiles in the Parker Center. (Id. at 92-96.) She then "felt for the first time [that she] had the answer as to why [her] husband came down with cancer. . . ." (Id. at 100.) She began doing some reading about, and talking to other people about, PCBs. (Id. at 116.)
Mrs. Maertin testified that after her husband's death, she went through a period of grief. (Id. at 33.) After over two years, Maertin says, "I realized that I was . . . stuck in my grief. I felt like I was trying so hard to get well and then be whole again and I felt like there was a -- my heart had a locked door on it and I couldn't get the door open because I wasn't feeling." (Id. at 33-34.) Consequently, she chose to see a Christian psychologist for counseling. (Id. at 33-36.) She saw him at first one hour once a week for a month and then once every two weeks, for a total of three months of therapy. (Id.) At the end of three months, she stopped seeing him because "I was through the difficult part of my grief." (Id. at 36.)
By the time of her deposition, Mrs. Maertin testified that while she will never be over the loss of her husband, the anger and grief were mostly gone, such that she was able to say "[y]ou know, I feel like I can live -- I can live a normal life. I can feel again." (Id. at 38.) Having surmounted most of her grief through counseling, Mrs. Maertin testified, she was sleeping well and her energy level was very good, just as they had been before her husband was ill. (Id. at 41-42.) She engages in a great deal of activity, running, playing tennis, biking, hiking, and camping. (Id. at 43.) She also does yard work at home and participates in social activities at her church and in a "Mothers of Preschool Children" group. (Id. at 44-46.)
It is apparent that while Mrs. Maertin did suffer emotional distress, that distress was due to the loss of her husband and subsided after counseling. She has come forward with no evidence *fn10 to support the finding by a reasonable fact finder that she suffered severe emotional distress, tantamount to physical injury as a result of her own exposure to PCBs, rather than a result of her husband's demise. Mrs. Maertin's testimony indicates that her life was disrupted by, and that she sought counseling because of, her grief over her husband's death, and that her emotional status returned largely to normal after she dealt with that grief. None of her testimony indicates that her life was interrupted because of her fears over her own alleged exposure to PCBs; rather her testimony relates fears or worries of the type normally experienced by someone who has learned that he or she was exposed to a toxic substance, for which New Jersey's laws provide no recovery. Accordingly, Mrs. Maertin's claim for damages arising from her own fear of cancer must be dismissed.
g. Plaintiff Douglas Melegari
Douglas Melegari was exposed to the ceiling tiles in the Parker Center between 1971 and 1986. (Melegari Dep. at 21-24.) He was told about a link between PCBs in the ceiling tiles and carcinogenic effects at a faculty meeting in 1994. According to Melegari's testimony, he became "scared as hell" as he thought about the high incidence of cancer at the college. Id. at 44-51.) His concerns were magnified by his own father's painful and prolonged battle with cancer and by his own experience with a pre-cancerous growth on the back of his neck. (Melegari Dep. II. at 13-14.)
Melegari says that he expressed his concerns only to his wife and to his doctor. (Id. at 43.) He discussed his fear of cancer with his doctor as his doctor treated him for the chronic prostatitis, from which he has suffered since the mid-1980s. (Id. at 29-35.) He testified that
I do live in constant fear of getting cancer and I -- I am always asking questions about it and do you think there's a causal -- of course they shrug their shoulders and they don't know and -- and every time, you know, like the lump, the prostatitis, the mole, I worry. (Id. at 55-56.)
While Melegari stated that he discussed PCBs with his physician and his wife, his own testimony indicates that his physician never recommended that he see a mental health care provider in connection with his alleged fear of cancer, and Melegari has never done so. (Id. at 63-64.) It also appears that Melegari's fear has not disrupted his daily life. He takes care of his own yard and uses a front-end loader to remove snow from his driveway when needed. (Id. at 59.) He uses the computer as a hobby, and he is a home shop machinist, making trinkets and tools and doing odd-jobs for neighbors as a hobby. (Id. at 59-60.) Melegari also enjoys spending time with his family, visiting historical sites, malls, arcades, and restaurants. (Id. at 61.)
Reading Melegari's testimony in the light most favorable to him, a fact finder could certainly find that he has been troubled by the kind of concerns that generally arise from the knowledge that a person has been exposed to a toxic substance - fears which, according to the courts in Ironbound and Theer, supra, are not compensable, no matter how reasonable those fears may be, when unaccompanied by a physical injury. There is no evidence, however, that would support a reasonable fact finder's finding that he has suffered severe and substantial emotional distress that is so severe, substantial, and enduring as to be tantamount to physical injury. Accordingly, his claim must be dismissed.
h. Plaintiff Judith Nelson
Judith Nelson was exposed to the ceiling tiles in the Parker Center between 1971 and 1986. (Nelson Dep. at 9-10.) She first learned about the alleged PCB exposure in late 1993 or early 1994 (id. at 81), at the same time as three friends from BCC and her son died of cancer. (Id. at 34-51.) Nelson says that she believed that she would be the next to be sick. (Id. at 40.) According to Nelson, a psychiatrist diagnosed her with Post Traumatic Stress Disorder ("PTSD") as a result of these events, a condition which made her numb to all of those around her. (Id. at 34, 60.) Nelson testified at her deposition that she was still taking anti-depressants because she suffered from nightmares, flashbacks, anxiety, shortness of breath, lack of concentration, and terror over returning to the college. (Id. at 64-67.) She said that she obsesses over past deaths as well as her own mortality (id. at 67), and that she has discussed her fear of PCBS, cancer, and death with her doctors. (Id. at 72-74.)
Defendant Armstrong contends that the emotional distress which Nelson has suffered resulted not from PCB exposure, but rather from other traumatic events in her life. (Def.'s Br. at 16.) In her deposition testimony, Nelson admitted that she was hospitalized twice in 1971 for emotional breakdowns and severe depression and even received shock treatments; this was a result of the break-up of her marriage. (Id. at 17-19; 103.) She also testified that one of her sons was in a coma in 1988 after a serious car accident, and that another son was diagnosed with cancer in 1992, a disease which had also afflicted Nelson's grandfather, father, mother, and two aunts, and which ultimately claimed her son's life in January of 1994. (Id. at 115-118.) Additionally, Nelson testified, her one-time lover and business partner stole money that Nelson had invested in a business venture, cheated on her, and declared bankruptcy, saddling Nelson with business debts. (Id. at 115- 116; 122.)
Defendant argues that these events caused the emotional distress, relying heavily on the close timing between Nelson's son dying of cancer and Nelson complaining to her psychologist of physical conditions consistent with PTSD. (Def.'s Br. at 17.) Defendant argues that Nelson testified that she saw a psychologist all through this time period, from 1971, to the time her son was in a car accident (id. at 114), to when her other son was diagnosed with cancer (id. at 117-118), such that her psychological counseling in 1994 was an outgrowth of that history and was not due to PCB exposure. But a genuine dispute a fact exists here, for Nelson also testified that before being diagnosed with PTSD in 1994, she had last seen a psychiatrist for depression in 1979. (Id. at 33- 34.) *fn11
Taking Nelson's admissible testimony in a light most favorable to her, I find that she has presented enough evidence to support a reasonable fact finder's finding that she suffered severe emotional distress as a result of her knowledge of her exposure to PCBs. She has gone beyond simply stating that she is scared, but rather has presented more concrete testimony as to how her significant fearful reaction affected her daily life and mental health in a substantial and continuous way, requiring mental health counseling. Any arguments about possible other causes goes only to the weight of the evidence, and weighing the evidence is not permissible at this point. Summary judgment is denied as to Judith Nelson's fear of cancer claim.
i. Plaintiff Harry Schmoll
Harry Schmoll was exposed to the ceiling tiles in the Parker Center between 1974 and 1986. (Schmoll Dep. at 16-21.) As President of the faculty association of BCC, Schmoll and plaintiff Kathleen Sweeney were told by officers of the college that the college had been contaminated with PCBs. (Id. at 48-50; 62-64.)
Schmoll offers testimony purporting to show that as a result of this knowledge, he has suffered severe emotional distress. Schmoll says that he told his doctors that he had been exposed to PCBs and that he was "fearful of any effects of that." (Schmoll Dep. at 41-44.) He told his doctors that he was concerned because a number of his colleagues had been dying from cancer. (Id. at 44.) He also, upon his own request, had a blood test for PCBs, but it came out negative, and he did not have his blood retested because he believed that PCBs in one's system eventually disappear. (Id. at 68.) He stated that "I believe I will die from the . . . PCB contamination that I've been exposed to." (Id. at 71.)
Other than his self-reported feelings of fear, however, Schmoll has offered no evidence to show that he saw a mental health provider or that his daily life was disrupted by his fear of cancer. He continues to be a member of the BCC faculty. His wife testified that his energy level was good, although it had dropped a bit as of the early 1980s, long before he learned of PCBs. (R. Schmoll Dep. at 22-24.) Nevertheless, his wife said, Schmoll continues to travel regularly, read, and bicycle, in addition to attending local political meetings. (Id. at 27-29.)
While I cannot weigh the evidence at the summary judgment stage, Schmoll himself has presented no evidence that would contradict the depiction his wife gave of his post-exposure lifestyle. His distress has not prompted him to seek help from a mental health provider, nor has it affected his ability to perform the activities of his daily routine. Reading his testimony in the light most favorable to him, a finder of fact could find that he has suffered fears as a result of his exposure to PCBs, fears which have been exacerbated by watching friends and colleagues die of cancer. However, nothing in his testimony provides a basis for a finder of fact to find that he has suffered emotional distress so severe and substantial in magnitude and duration as to be tantamount to physical injury. Accordingly, his claim for fear of cancer must be dismissed.
j. Plaintiff Kathleen Sweeney
Kathleen Sweeney, a chemistry professor, was exposed to the ceiling tiles in the Parker Center between 1976 and 1986. (Sweeney Dep. at 12- 13.) She and plaintiff Harry Schmoll learned of the PCBs in the November of 1993 through documents they found in the Right to Know office during an investigation they launched after two of their colleagues developed cancer. (Id. at 12-13, 38-39.) Sweeney testified that she believes she is doomed for cancer because of PCB exposure. (Id. at 91, 101, 105); in the room where she taught, she alleges, PCB levels were seven times higher than the acceptable level. (Id. at 13, 101.) She also testified that she had an upper GI series performed in 1995 after experiencing constriction in her swallowing response, a symptom which Lou Maertin had experienced prior to being diagnosed with, and dying of, cancer. (Sweeney Dep. II. at 89, 90, 94.) Sweeney says she discussed her concerns with her doctors (id. at 94-95) and received psychiatric counseling with respect to her PCB exposure, the deaths of colleagues, and her fears of getting cancer. (Id. at 102-103, 150-155.)
Defendant contends that Sweeney's distress was due to the illnesses of family members, not PCB exposure. (Def.'s Br. at 19.) Sweeney testified that she experienced stress-related discomfort (irritable bowel syndrome) in 1991 when an aunt in Florida with whom she was close was ill with cancer (id. at 83), and that discomfort continued through 1995 as she flew back and forth to Florida to care for the uncle who had been unusually dependent on Sweeney's aunt. (Id. at 85.) Ultimately, Sweeney had to deal with her uncle dying of renal and colon cancer in 1995. (Id. in 86.) She said that her stress-related discomfort disappeared after her uncle's death and has not returned. (Id.) Moreover, Sweeney said that she maintains an active and full life: she owns her own home and takes care of the yard (id. at 113), watches birds (id. at 113-114), and exercises on a treadmill and with weights. (Id.)
There appears to be a genuine dispute of material fact here: while defendant contends, based on Sweeney's testimony, that Sweeney's stress disappeared with her uncle's death in 1995, Sweeney also testified that she had seen Pat Burkhardt, a mental health professional, several times in 1995 and 1996 to discuss PCB issues, though she stopped going for counseling when she realized that Burkhardt "couldn't make [the PCB issues] go away." (Id. at 102-104.) In substance, she has alleged that her anxiety was so strong and prolonged that it provoked physical manifestations including the irritable bowl syndrome and constriction of swallowing, as well as actual prolonged and substantial fear. While defendant could argue to the jury that Sweeney's fear was not severe or that it was, in any case, due to other causes, that is an issue of the weight of the evidence. Sweeney has proffered evidence that learning of her exposure to PCBs led to stress and anxiety strong enough to cause her to seek counseling regarding her fear of cancer. Taken in the light most favorable to Sweeney, and assuming that the requisite expert testimony is presented at trial, that is enough evidence to support a reasonable juror's inference that Sweeney suffered from severe and substantial emotional distress of the type required by Ironbound and Theer. Accordingly, her claim for fear of cancer will not be dismissed.
k. Plaintiff Thomas Thompson
Thomas Thompson is a 75 year-old man who is currently retired. He was exposed to the ceiling tiles in the Parker Center between 1972 an 1989 (Thompson Dep. at 30-34.) He first learned about PCB contamination in the Parker Center in late 1994. (Id. at 50.) He claims now that he has suffered severe and substantial emotional distress as a result of his fear of cancer.
The only evidence of emotional distress offered by Thompson is his testimony in his deposition that his reaction to learning of the PCBs was Horror. Complete horror because I had had two sicknesses, meaning 1975 and 1989, and no one was able to give as far as the possibility of a cause of the so-called illnesses. So when I heard about the PCBs, all this time, you know, I'm wondering, you know, what's wrong here, what's wrong with my health, et cetera. (Id. at 54.)
Other than his one self-reported statement of fear, however, Thompson has offered no evidence that his fear has interfered with his daily routine or caused him to seek help from a mental health provider (id. at 75), nor has he even told his long-time physician that he had been exposed to PCBs. (Id. at 60, 64, 135-136.) To the contrary, he testified that his enjoys using his computer, walking on the beach in Florida, and doing crossword puzzles. (Id. at 111-113.) He sleeps well and has a "very, very good appetite" (id. at 135-136), and he testified that he feels normal, especially for a 75 year-old man. (Id. at 124.) As Thompson has offered no basis from which a reasonable fact finder could find that he has suffered severe and substantial emotional distress of the level required by Ironbound and Theer, his claim for fear of cancer must be dismissed.
l. Plaintiff Walter Veit
Walter Veit is a 67 year-old man who was exposed to the ceiling tiles at the Parker Center between 1972 and 1986. (Veit Dep. at 30-31.) He first learned about the alleged PCB contamination at the Parker Center around 1993, at the same time that he was diagnosed with gastroesophageal reflux disease ("GERD"). (Id. at 16-18, 65-67.) He testified that at that time, he began to have concerns or fear related to developing esophageal cancer, especially because he and Lou Maertin, who died of cancer, lived very similar lifestyles. (Id. at 120.)
According to Veit's testimony, the loss of some of his friends at BCC to cancer, as well as his own treating physician's comments that GERD, left unattended, could progress into esophageal cancer, increased Veit's emotional distress and anxiety over his own esophageal condition and prospects for future health. (Id. at 120-121.)
Whatever concerns Veit may harbor, however, Veit has offered no evidence that those concerns have hampered his lifestyle and mental health. He testified that he has "been extremely healthy all [his] life." (Id. at 16-17.) According to Veit, he goes dancing with his wife once a week, rides his bicycle to a from work each day, plays tennis several times a week, walks two or more miles every day, and cares for the plant life outside his home. (Id. at 97-99.) In the summer, he spends three or four weeks near Lake Tahoe with his son, hiking eight hours or so to the top of a mountain and back. (Id. at 98.) Moreover, Veit has never met with a mental health professional to discuss any of the emotional distress he harbors as a result of PCB exposure.
While Veit has presented evidence sufficient to support a finding of fact that he has suffered emotional distress as a result of PCB exposure, he has not presented any evidence to allow a reasonable fact finder to find that his emotional distress has been greater than the concerns normally experienced by one who has learned that he or she was tortiously exposed to a toxic substance. As Veit has not presented evidence that would support a finding of severe and substantial emotional distress as described by Ironbound and Theer, his claim for fear of cancer must be dismissed.
3. Afterword: Psychiatric Expert Evidence
As discussed above, the fear of cancer claims of plaintiffs Patricia Barnes, Judith Nelson, and Kathleen Sweeney will not be dismissed. It is assumed that the medical evidence proffered by these plaintiffs, and relied upon by this Court, will be available at the time of trial, and that the reports of these expert witnesses or treating psychiatrists/psychologists have been served as required by the Court's case management orders. Obviously, hearsay statements by a plaintiff regarding these complicated issues of psychiatric diagnosis and causation would not suffice to meet the burden of proof of such facts at trial. The Court expresses no opinion at this time regarding the admissibility of such evidence, which can be addressed, if necessary, by a motion in limine.
For the foregoing reasons, the summary judgment motion of defendant Armstrong World Industries, joined in by third-party defendants Monsanto Company and Solutia, Inc., will be granted in part and denied in part. More specifically, summary judgment will not be granted as to the claims of plaintiffs Patricia Barnes, Judith Nelson, and Kathleen Sweeney. All other fear of cancer claims will be dismissed. The accompanying Order is entered.
This matter having come before the Court upon the motion of defendant Armstrong World Industries, joined in by third-party defendants Monsanto Company and Solutia, Inc., for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure against the "fear of cancer" plaintiffs remaining in the case; and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS this 18th day of December 1998 hereby
ORDERED that the motion of defendant Armstrong World Industries, as joined in by third-party defendants Monsanto Company and Solutia, Inc., for summary judgment against the remaining "fear of cancer" plaintiffs be, and hereby is, GRANTED IN PART and DENIED IN PART, as follows:
IT IS ORDERED that summary judgment be GRANTED in favor of Armstrong World Industries, Monsanto Company, and Solutia, Inc., and against plaintiffs Patricia Diller, Carole Jenson, Patricia Kalata, Geneva Kohler, Douglas Melegari, Harry Schmoll, Thomas Thompson, and Walter Veit, and those plaintiffs' claims are hereby DISMISSED; and it is
ORDERED that summary judgment be GRANTED in favor of Armstrong World Industries, Monsanto Company, and Solutia, Inc., and against plaintiff Joan Maertin only with respect to the "fear of cancer" claim asserted by Joan Maertin in this action, and her "fear of cancer" claim is hereby DISMISSED; and it is
ORDERED that summary judgment be DENIED as to the "fear of cancer" claims of plaintiffs Patricia Barnes, Judith Nelson, and Kathleen Sweeney.
JEROME B. SIMANDLE U.S. District Judge