Mauro v. Raymark Industries, Inc.

561 A.2d 257, 116 N.J. 126, 14 OSHC (BNA) 1161, 1989 N.J. LEXIS 100
CourtSupreme Court of New Jersey
DecidedAugust 1, 1989
StatusPublished
Cited by84 cases

This text of 561 A.2d 257 (Mauro v. Raymark Industries, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mauro v. Raymark Industries, Inc., 561 A.2d 257, 116 N.J. 126, 14 OSHC (BNA) 1161, 1989 N.J. LEXIS 100 (N.J. 1989).

Opinions

The opinion of the Court was delivered by

STEIN, J.

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 [129]*129as a result of inhalation of asbestos fibers in the course of Mauro’s employment at Ancora State Psychiatric Hospital. Mauro testified that he was employed as a repairman and later as a plumber-steamfitter. From 1964 until the mid-to-late 1970s he used or was exposed to materials containing asbestos manufactured by defendants, including pipe covering and asbestos cement. The exposure occurred when he was ripping out old insulation material and installing new insulation. He testified that defendants’ products contained no warnings.

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 [130]*130“pleural asbestosis,”1 based on x-ray examination that revealed scarring of the lung lining, pleural plaque formation, and left diaphragmatic calcification.

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 [131]*131statistical studies were not referred to during discovery or in Dr. Guidice’s expert report. The relevant portion of that report was characterized as being limited to an opinion that Mauro was at increased risk for “the following asbestos-related diseases: bronchogenic carcinoma; malignant mesothelioma; laryngeal carcinoma; and gastrointestinal carcinoma.” The trial court ruled that in view of their omission from his report, Dr. Guidice would be precluded from giving testimony based on such statistical and epidemiological studies.

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.

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Bluebook (online)
561 A.2d 257, 116 N.J. 126, 14 OSHC (BNA) 1161, 1989 N.J. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mauro-v-raymark-industries-inc-nj-1989.