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
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 ...