Judges： Clifford, Pollock, O'Hern, Garibaldi, Stein, Handler
Filed Date： 8/1/1989
Status： Precedential
Modified Date： 10/19/2024
The opinion of the Court was delivered by
In Ayers v. Jackson Township, 106 N.J. 557 (1987), we declined to recognize a cause of action under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, to recover damages for an unquantified enhanced risk of disease resulting from exposure to toxic chemicals. We are now asked to consider whether a claim for enhanced risk of disease is cognizable in a case involving personal injury claims against private-entity defendants asserted by a plaintiff with present injuries attributed to asbestos exposure. The plaintiffs expert testified that there was a “high probability” that plaintiff had an increased risk of contracting cancer during his lifetime. The expert was unable to testify that it was probable that plaintiff would contract cancer, and evidence of statistical studies offered to show a correlation between asbestos-related disease and cancer was excluded. Thus, there is no evidence in the record of the likelihood that plaintiff will contract cancer. The trial court withdrew from the jury’s consideration plaintiff’s claim for damages based on his enhanced risk of cancer. In a reported opinion, Mauro v. Owens-Coming Fiberglas Corp., 225 N.J. Super. 196 (1988), the Appellate Division affirmed both the trial court’s exclusion of the statistical evidence correlating asbestos disease with cancer and the trial court’s rejection of the enhanced-risk claim. We granted certification, 113 N.J. 341 (1988), and now affirm.
I.
Plaintiffs, Roger Mauro (hereinafter plaintiff) and Lois Mauro, his wife, instituted this action against several manufacturers of asbestos products based on injuries allegedly sustained
In 1981 plaintiff and his co-workers participated in tests conducted by the New Jersey Department of Health to determine the prevalence of asbestos-related disease among plumbers and steamfitters in state institutions. Plaintiff was informed by Dr. Peter Gann, the department’s Chief of Occupational Medicine, that although the results of his physical examination and lung function test were “normal,” he had bilateral thickening of both chest walls and calcification of the diaphragm. Dr. Gann’s letter informing plaintiff of his condition stated: “[Y]our exposure to asbestos has been significant and there is some evidence that this exposure may increase the risk of development of lung cancer.”
Mauro testified that when informed of his condition, he became “very angry, very upset.” He feared contracting cancer because his mother and a prior employer had died of the disease. He subsequently consulted a pulmonary specialist, by whom he has been examined every six months since 1982. Mauro has also had annual chest x-rays. He testified that the reason for his medical surveillance is “to find out if I’m going to get cancer and when I’m going to get it.”
Plaintiff’s primary expert witness was Dr. James Guidice, a pulmonary specialist who examined plaintiff in 1986. He explained the difference between the lining of the lung, the “pleura,” and the “parenchyma,” which is the spongy material inside the lung. Dr. Guidice diagnosed plaintiff’s condition as
Dr. Guidice testified that asbestos exposure can cause cancer, and identified four major areas of the body in which asbestos-related cancer is likely to occur: the lungs, the lining around the lungs, the larynx, and the entire gastrointestinal tract. He testified that because of Mauro’s asbestos exposure, “the risk of cancer, specifically asbestos-related cancers, is a major concern.” Dr. Guidice acknowledged that he did not testify that it was probable that Mauro would contract cancer: “There’s a risk. * * * I certainly can’t predict he’s going to get cancer. All I can say is there’s a high probability he’s at risk because he’s a young man and therefore he’s at increased risk * * * for developing cancer.”
Dr. Guidice also testified about Mauro’s need for medical surveillance “one to two to four times a year depending upon the individual problems,” which he said could continue during Mauro’s lifetime. He also gave testimony about the estimated costs of x-rays, breathing examinations, and office visits that were components of the required medical surveillance.
In the course of the defendants’ voir dire examination concerning Dr. Guidice’s qualifications and the scope of his expert testimony, plaintiff’s counsel sought clarification from the trial court on whether Dr. Guidice would be permitted to testify about statistical and epidemological studies indicating that between twenty percent and forty-three percent of those afflicted with asbestos-related disease eventually die of cancer. Defense counsel argued that such testimony was improper because the
In its charge to the jury at the conclusion of the trial, the trial court rejected Mauro’s claim for enhanced risk of developing cancer. The court explained:
There’s no testimony that the Plaintiff Roger has cancer or that he likely will get cancer. In New Jersey damages may not be awarded for any future injury which is merely possible but not probable.
The reason for this rule is simple. In this state, if the Plaintiff were to get cancer sometime in the future and claim same to have been due to an alleged asbestos exposure, at that point he could file a new lawsuit seeking damages for that cancer.
Accordingly, even if you conclude that the plaintiff has an enhanced risk of developing cancer, you may not award any damages for that risk.
However, the court permitted the jury to consider Mauro’s claim for damages caused by emotional distress relating to his fear of developing cancer, provided the jury found that Mauro sustained an asbestos-related injury. The court also permitted the jury to consider Mauro’s claim for damages caused by his present medical condition, as well as the cost of future medical surveillance.
The jury returned a verdict of $7,500 in favor of plaintiff Eoger Mauro and against defendants Owens-Corning, Pittsburgh Corning, and Eagle-Picher Industries. Defendant Keene Corporation was found not liable on all counts. The jury found against Lois Mauro on her claim for loss of companionship and consortium.
The Appellate Division affirmed. Mauro v. Owens-Corning Fiberglas Corp., supra, 225 N.J.Super. 196. The court held that under Ayers v. Jackson Township, supra, 106 N.J. 557,
II.
To set a context for our consideration of the enhanced-risk question posed by this record, we restate the inquiry we posed in Ayers as a preface to our analysis of the issues in that litigation:
Our evaluation of the enhanced risk * * * claim[ ] requires that we focus on a critical issue in the management of toxic tort litigation: at what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages? [106 N.J. at 579.]
It is important to recognize at the outset that the rule of law advocated by plaintiffs, i.e., that tort victims should have a present cause of action for a significant but unquantified enhanced risk of future injury, represents a significant departure from traditional, prevailing legal principles. The general rule is that set forth in the Restatement:
When an injured person seeks to recover for harms that may result in the future, he is entitled to damages based upon the probability that harm of one sort or another will ensue and upon its probable seriousness if it should ensue. When a person has suffered physical harm that is more or less permanent in nature * * * he is entitled to recover damages not only for harm already suffered, but also for that which probably will result in the future. [Restatement (Second) of Torts § 912 comment e (1979).]
See also 3 Personal Injury: Actions, Defenses and Damages § 3.03 (L. Frumer & M. Friedman ed. 1984) (“Plaintiff is entitled to recover damages for those losses which are reasonably certain to occur in the future * * *. Like any other future loss, the permanent nature of the injury must be proved to a degree
The long-standing rule in New Jersey is that prospective damages are not recoverable unless they are reasonably probable to occur. Coll v. Sherry, 29 N.J. 166, 174-75 (1959). The rationale for adopting this standard was explained by Justice Francis, then sitting in the Appellate Division, in Budden v. Goldstein, 43 N.J.Super. 340, 346-47 (1957):
In the admeasurement of damages, it is well known that no recovery can be allowed for possible future consequences of an injury inflicted by a wrongdoer. In order for suggested future results to be includible as an element of damage,*134 it must appear that they are reasonably certain or reasonably probable to follow.
* * * [M]any of the authorities throughout the country use the expression “reasonably certain” or “reasonable certainty” as the test and consider “reasonably probable” or “reasonable probability” inadequate and erroneous; others accept the latter statement. Our cases do not seem to have dealt specifically with the question of whether the two have the same significance in relation to quantum of proof, and so may be used interchangeably. It seems to us that in a resolution of the conflicting interests involved, reasonable probability is the just yardstick to be applied. Basically, our view comes down to this: a consequence of an injury which is possible, which may possibly ensue, is a risk which the injured person must bear because the law cannot be administered so as to do reasonably efficient justice if conjecture and speculation are to be used as a measure of damages. On the other hand, a consequence which stands on the plane of reasonable probability, although it is not certain to occur, may be considered in the evaluation of the damage claim against the defendant. In this way, to the extent that men can achieve justice through general rules, a just balance of the warring interests is accomplished. [Citations omitted],
Cf. Lorenc v. Chemirad Corp., 37 N.J. 56, 72 (1962) (upholding jury verdict where evidence could have supported a finding that plaintiff would probably develop malignancy due to chemical burns); Kimble v. Degenring, 116 N.J.L. 602, 604 (Sup.Ct.1936) “([I]n an action of tort, included in the measure of damages are * * * those prospective damages which can be estimated as reasonably certain to occur.”); Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 564-65 (Law Div.1985) (Rejecting damage claim for enhanced risk of cancer where plaintiff cannot satisfy reasonable medical probability standard of proof required to recover for prospective injury).
Although most of the courts that have addressed claims for enhanced-risk damages in toxic-tort cases have applied the general rule requiring proof that the threatened injury be probable, see infra at 139-41, commentators on the subject have generally encouraged recognition of an enhanced-risk cause of action in such cases even if the threat of contingent harm is less than probable, or is unquantified. See Gale & Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 Cumb.L.Rev. 723, 741-44 (1985); Seltzer, Personal Injury Hazardous Waste Litigation: A Proposal for Tort Reform, 10 B.C. Envtl. Aff. L. Rev. 797, 844 (1982-83); Note,
We recently addressed several of the arguments supporting recognition of enhanced-risk claims in Ayers v. Jackson Township, supra. With respect to the statute of limitations and the single-controversy doctrine, we held that in toxic-tort cases
neither the single controversy doctrine nor the statute of limitations, N.J.S.A. 2A:14-2, will preclude a timely-filed cause of action for damages prompted by the future “discovery” of a disease or injury related to the tortious conduct at*136 issue in this litigation. The bar of the statute of limitations is avoided because, under New Jersey’s discovery rule, the cause of action does not accrue until the victim is aware of the injury or disease and of the facts indicating that a third party is or may be responsible. Moreover, the single controversy rule, intended " ‘to avoid the delays and wasteful expense of the multiplicity of litigation which results from the splitting of a controversy,’ ” cannot sensibly be applied to a toxic-tort claim filed when disease is manifested years after the exposure, merely because the same plaintiff sued previously to recover for property damage or other injuries. In such a case, the rule is literally inapplicable since, as noted, the second cause of action does not accrue until the disease is manifested; hence, it could not have been joined with the earlier claims. [106 N.J. at 583 (citations omitted).]
In Ayers, we also explained the significant distinctions between a claim for damages based on enhanced risk of injury and a claim for medical-surveillance damages.
The enhanced risk claim seeks a damage award, not because of any expenditure of funds, but because plaintiffs contend that the unquantified injury to their health and life expectancy should be presently compensable, even though no evidence of disease is manifest. Defendant does not dispute the causal relationship between the plaintiffs’ exposure to toxic chemicals and the plaintiffs’ increased risk of diseases, but contends that the probability that plaintiffs will actually become ill from their exposure to chemicals is too remote to warrant compensation under principles of tort law.
By contrast, the claim for medical surveillance does not seek compensation for an unquantifiable injury, but rather seeks specific monetary damages measured by the cost of periodic medical examinations. The invasion for which redress is sought is the fact that plaintiffs have been advised to spend money for medical tests, a cost they would not have incurred absent their exposure to toxic chemicals. Defendant contends that the claim for medical surveillance damages cannot be sustained, as a matter of law, if the plaintiffs’ enhanced risk of injury is not sufficiently probable to be compensable. In our view, however, recognition of the medical surveillance claim is not necessarily dependent on recognition of the enhanced risk claim. [106 N.J. at 590-91.]
Although we rejected the enhanced-risk claim in Ayers, partially on the basis that the action was brought under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, id. at 598-99, we upheld the right of plaintiffs with an unquantified enhanced risk of disease due to exposure to toxic chemicals to recover for medical-surveillance expenses:
Accordingly, we hold that the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals*137 are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. In our view, this holding is thoroughly consistent with our rejection of plaintiffs’ claim for damages based on their enhanced risk of injury. That claim seeks damages for the impairment of plaintiffs’ health, without proof of its likelihood, extent, or monetary value. In contrast, the medical surveillance claim seeks reimbursement for the specific dollar costs of periodic examinations that are medically necessary notwithstanding the fact that the extent of plaintiffs’ impaired health is unquantified. [106 N.J. at 606.]
Nor is there any question concerning the right of a plaintiff who has sustained physical injury because of exposure to toxic chemicals to recover damages for emotional distress based on a reasonable concern that he or she has an enhanced risk of further disease. See, e.g., Devlin v. Johns-Manville Corp., supra 202 N.J.Super. at 560-63. The trial court in this case submitted plaintiffs emotional-distress claim to the jury. On appeal, defendants urged that the claim was not cognizable because of a lack of physical symptoms evidencing plaintiffs distress. The Appellate Division upheld the trial court, noting that “[pjroof that emotional distress has resulted in ‘substantial bodily injury or sickness’ is not required when plaintiff suffers from a present physical disease attributable to defendant’s tortious conduct.” 225 N.J.Super. at 209; accord Herber v. Johns-Manville Corp., 785 F.2d 79, 85 (3d Cir.1986) (applying New Jersey law); Evers v. Dollinger, 95 N.J. 399, 409-11 (1984). Defendants also advanced this issue in their cross-petition for certification, which we denied. See 113 N.J. 341 (1988). Hence, although we need not and do not reach the question whether exposure to toxic chemicals without physical injury would sustain a claim for emotional-distress damages based on a reasonable fear of future disease, such a damage claim is clearly cognizable where, as here, plaintiff’s exposure to asbestos has resulted in physical injury.
Thus, our decisional law has substantially responded to the principal arguments that have been advanced as justifying a departure from the traditional “reasonable probability” standard to permit plaintiffs exposed to toxic chemicals to recover
Based on these developments in our decisional law, defendants asserted at oral argument that plaintiff’s claim premised on enhanced risk of disease had been fully adjudicated by submission to the jury of the claims for medical surveillance and emotional distress, contending that there were no other components of the enhanced-risk cause of action. Defendants’ argument misconceives the essential nature of a claim predicated on enhanced risk of disease. Simply stated, it is a claim for damages based on a prospective injury, conceptually analogous to the claim of a personal-injury plaintiff with a damaged knee to recover damages for the prospective onset of an arthritic condition that may result from the knee injury. See Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 412 (5th Cir.) (describing General Motors Acceptance Corp. v. Layton, 353 So.2d 749 (Miss.1977) — where plaintiff with bruised knee recovered damages for prospective arthritis — as “indistinguishable” from asbestos plaintiffs’ claim for prospective cancer), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). Under our case law, the personal-injury plaintiff conceivably could claim medical-surveillance damages and emotional-distress damages on the basis that the knee injury might cause arthritis, but could not recover damages for the prospective arthritic condition — the “enhanced risk” of arthritis — unless its occurrence was established as a matter of reasonable medical probability. Coll v. Sherry, supra, 29 N.J. at 174-75. Thus, the fact that Mauro’s claims for medical surveillance and emo
We first observe that the decided cases throughout the country that have considered the question, both in the context of asbestos litigation and claims based on exposure to other toxic chemicals, are almost uniform in their conclusion that in order to recover damages, plaintiff must prove that the prospective disease is at least reasonably probable to occur. See, e.g., Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1204 (6th Cir.1988) (under Tennessee law plaintiff must prove to reasonable medical certainty that anticipated harm will occur); Hagerty v. L. & L. Marine Servs., Inc., 788 F.2d 315, 319 (5th Cir.) (affirming dismissal of claim for increased risk of cancer based on exposure to toxic chemicals absent proof that “toxic exposure more probably than not will lead to cancer”), modified on other grounds, 797 F.2d 256 (5th Cir.1986); Herber v. JohnsManville Corp., supra, 785 F.2d at 82 (affirming District Court’s exclusion of evidence that plaintiff with asbestos-related injury has significantly increased risk of cancer, based on New Jersey decisions requiring proof of reasonable medical probability that future injury will occur); Jackson v. Johns-Manville Sales Corp., supra, 781 F.2d at 412-13 (allowing recovery for increased risk of cancer where evidence indicated that plaintiff exposed to asbestos had greater than fifty-percent chance of contracting cancer); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138 (5th Cir.1985) (affirming jury verdict allowing recovery for enhanced risk of cancer where proof satisfied Texas standard of reasonable medical probability that
Although the weight of authority compellingly argues against recognition of an enhanced-risk-of-cancer claim by a plaintiff with an asbestos-related injury absent proof that satisfies the standard of reasonable medical probability, our analysis would be incomplete without consideration of policy arguments
Recognition of a claim for significantly enhanced risk of disease would also enhance the tort-law’s capacity to deter the improper use of toxic chemicals and substances, thereby addressing the contention that tort law cannot deter polluters who view the cost of proper use or disposal as exceeding the risk of tort liability. Id. at 604.
The rule of reasonable medical probability is also challenged as an artificial, all-or-nothing standard that rejects future-injury claims supported by substantial evidence that barely falls short of the required quantum of proof. This viewpoint was reflected by the District Court’s decision in Gold v. Johns-Manville Sales Corp., supra, No. 80-2907, bench op. at 36-37, in denying defendant’s motion to exclude plaintiff’s evidence demonstrating enhanced risk of cancer:
Defendants’ fixation on the term “possibility” is too simplistic. Can I really put the terms "reasonable probability” and “greatly increased probability” on a scale and expect to see a decided tip in one direction or the other? The scientific reports indicate a 40 to 45 percent chance of contracting cancer among asbestos workers. It will be for the jury to determine whether the future onset of cancer is probable based on the proofs presented by the plaintiffs and subject to cross-examination by the defendants * * *.
The court in Gold appeared to adopt the reasonable-probability standard, but permitted the jury to determine whether the proofs were sufficient to meet it.
Other considerations weigh in favor of limiting recognition of enhanced-risk claims to those that prove to a reasonable medical probability the likelihood of future injury. Those claims
The vast number of asbestos-related claims now pending in state and federal courts throughout the country is a matter of public record. The formidable burden of litigating such claims would be significantly greater if a substantial percentage of these cases also involved disposition of damage claims for the relatively unquantified enhanced risk of future disease.
Equally persuasive to this Court, however, is the availability of a future opportunity to assert such claims if and when the disease occurs, combined with the present availability of medical surveillance and emotional distress damages in appropriate cases. Supra at 135-37). In our view, removal of the statute-of-limitations and single-controversy doctrines as a bar to the institution of suit when the disease for which plaintiff is at risk ultimately occurs enhances the quality of the remedy that tort law can provide in such cases. If the disease never occurs, presumably there will be no claim and no recovery. If it does occur, the resultant litigation will involve a tangible claim for present injury, rather than a speculative claim for future injury. Hence, juries will be better able to award damages in an amount that fairly reflects the nature and severity of the plaintiff’s injury.
We acknowledge that our resolution of this issue is imperfect. In asbestos cases, for example, the available statistical evidence correlating asbestos-related disease with the future onset of cancer appears to fall short — as was evident from the evidence proffered in this case — of establishing the occurrence of cancer as a matter of reasonable medical probability. Cf.
[A] consequence of an injury which is possible, which may possibly ensue, is a risk which the injured person must bear because the law cannot be administered so as to do reasonably efficient justice if conjecture and speculation are to be used as a measure of damages. On the other hand, a consequence which stands on the plane of reasonable probability, although it is not certain to occur, may be considered in the evaluation of the damage claim against the defendant. In this way, to the extent that men can achieve justice through general rules, a just balance of the warring interests is accomplished. [Ibid.]
By adapting the statute-of-limitations and the single-controversy doctrines to the realities of toxic-tort cases, we have ameliorated the potential unfairness of applying the reasonable-probability standard to this type of litigation. Moreover, our case law affords toxic-tort plaintiffs the right to receive full compensation for any provable diminution of bodily health, accommodating all damage claims attributable to present injury and deferring compensation only for disease not yet incurred
III.
With respect to the trial court’s ruling precluding plaintiff’s expert witness from testifying on the basis of statistical and epidemiological studies not contained in his report or in any other discovery material, we affirm the restriction imposed on the expert substantially for the reasons set forth in the opinion of the Appellate Division. 225 N.J.Super. at 206-07.
Judgment affirmed.
Defendants contended that Dr. Guidice's use of the term "pleural asbestosis” was inaccurate, maintaining that asbestosis is characterized by scarring of the lung parenchyma, not by scarring of the pleura. But see I. Selikoff & D. Lee, Asbestos and Disease 189-206 (1978) (Discussion of characteristics and etiology of pleural asbestosis, described as changes in pleura and pleural cavity resulting from inhalation of asbestos dust).