In Re Joint Eastern & Southern District Asbestos Litigation. Arlene Maiorana, Individually and as Administratrix of the Estate of John Maiorana, Plaintiff/appellant/cross-Appellee v. United States Mineral Products Company, Defendant/appellee/cross-Appellant/third-Party Tishman Realty & Construction Co., Third-Party Defendant/appellee/cross-Appellant, Mario & Dibono Plastering Co., Third-Party Defendant/appellee/cross-Appellant, Castagna & Sons, Inc., Third-Party Defendant/appellee/cross-Appellant
Docket: 93-7829
Court: Court of Appeals for the Second Circuit; April 6, 1995; Federal Appellate Court
The case involves Arlene Maiorana, who, as the widow of John Maiorana, claimed his colon cancer resulted from exposure to an asbestos spray, Cafco D, manufactured by United States Mineral Products Company (USMP). This exposure occurred at two construction sites, including the World Trade Center, where Maiorana worked as a sheet metal worker. The scientific consensus is divided regarding the link between asbestos exposure and colon cancer. At trial, both parties presented expert testimony and epidemiological studies, leading to a jury verdict in favor of the plaintiff on February 10, 1993.
However, the district court later granted USMP's motion for judgment as a matter of law, overturning the jury’s decision. The appellate court found that the district court exceeded its role as defined in the Supreme Court's Daubert ruling, which pertains to the admissibility of scientific evidence, and improperly took the jury's role in evaluating the sufficiency of the evidence. Consequently, the appellate court reversed the district court's judgment, reinstating the jury verdict in favor of Maiorana, while upholding other pre-trial decisions challenged by the third-party defendants. The case was remanded for further proceedings in alignment with this ruling.
Cafco D, an asbestos-containing fireproofing spray, was used in significant construction projects, including the World Trade Center (WTC) and Meadowbrook Hospital, during 1969-1970. Maiorana, a sheet metal worker involved in these projects, was exposed to asbestos from Cafco D and was later diagnosed with colon cancer, ultimately leading to his death in June 1983 at age 40. The plaintiff filed a lawsuit on July 28, 1987, alongside other plaintiffs against several manufacturers of asbestos products, including USMP, the maker of Cafco D. The litigation expanded to include multiple third-party defendants, such as Tishman Realty (WTC general contractor), the Port Authority of New York and New Jersey (WTC owner), Castagna & Sons (Meadowbrook contractor), and Mario DiBono Plastering (asbestos contractor).
In 1991, the district court granted summary judgment in favor of the defendants, including USMP, citing insufficient evidence to establish causation. However, on appeal in 1992, the court reversed this decision, noting that the plaintiff provided both epidemiological studies and clinical evidence linking asbestos exposure to colon cancer, which suggested that such exposure likely caused Maiorana’s illness.
The case proceeded to trial from January 20 to February 10, 1993, where the jury ultimately awarded the plaintiff $4,510,000. The jury apportioned fault, holding USMP responsible for 50% of the damages and assigning other percentages to the third-party defendants, while absolving the Port Authority of liability. Following the trial, USMP sought judgment as a matter of law, a new trial based on various allegations regarding the trial's conduct, and remittitur due to the perceived excessiveness of the award. Third-party defendants also requested judgments concerning their liability and sought common-law indemnification against Mario DiBono.
On July 23, 1993, the district court granted USMP's motion for judgment as a matter of law, citing two main findings: (1) the plaintiff's epidemiological evidence failed to establish a causal link between asbestos exposure and colon cancer, and (2) the plaintiff did not present sufficient clinical evidence to counter the lack of statistically significant epidemiological proof. Epidemiology, essential in toxic and carcinogenic tort cases, assesses disease patterns and causal relationships.
In asbestos litigation, relative risk is often quantified using the standardized mortality ratio (SMR). An SMR of 1.0 indicates no increased risk, 2.0 suggests an equal likelihood of causation, and values above 2.0 indicate a greater likelihood of causation. To present a jury question on causation, the plaintiff needed to demonstrate that asbestos exposure was "more likely than not" the cause of colon cancer, which could be achieved through studies showing an SMR over 2.0 or a combination of lower SMR studies with robust clinical or experimental evidence.
The court evaluated the epidemiological studies against five "Sufficiency Criteria" from epidemiologist A. Bradford Hill: (1) strength and consistency of association, (2) dose-response relationship, (3) experimental evidence, (4) plausibility of a link, and (5) coherence between the factor and disease. The strength of association is defined by the relative risk ratio, while consistency is assessed by comparing findings across different studies and scientific literature.
Plaintiff's expert witnesses, Dr. Steven Markowitz and Dr. Carl Shy, testified that asbestos exposure causes colon cancer. However, the district court conducted an extensive review of epidemiological studies and determined that the evidence did not support this claim. The court noted that most studies reported standardized mortality ratios (SMRs) between 1.0 and 1.5, which it deemed statistically insignificant. While some studies, like those by Selikoff, Seidman, and Hilt, showed higher SMRs of 1.62, 1.85, and 2.27 respectively, the court criticized their methodologies and concluded that the association between asbestos exposure and colon cancer was weak and inconsistent across studies.
The district court assessed the dose-response relationship as "erratic," rejecting a plaintiff-cited study that used lung cancer rates as a proxy for asbestos exposure without direct measurements. Furthermore, animal studies did not establish a causal link between asbestos and colon cancer, despite Markowitz's claim regarding pre-cancerous polyps. The court acknowledged the general carcinogenic nature of asbestos but concluded that the evidence only suggested a possible relationship, lacking stronger support. Lastly, regarding coherence, the plaintiff needed to provide evidence that ruled out other causal factors or demonstrated that confounding factors were unlikely to have caused the disease, which the court found unaddressed.
The district court noted that the plaintiff's experts could not identify specific confounding factors for colon cancer and acknowledged that asbestos exposure is not typically a recognized risk factor for the disease. The court highlighted the colon cancer incidence in Nassau County, where Maiorana lived, at 25.7 per 100,000 people from 1970 to 1975, compared to the national rate of 18.1 per 100,000, suggesting other carcinogenic exposures in the area might complicate the causation analysis.
Regarding clinical evidence, the court pointed out that the plaintiff relied on a "differential" diagnosis, which attempted to rule out other causes rather than demonstrate direct evidence of causation, such as asbestos fibers in Maiorana's cancerous tissues. The plaintiff's experts argued that Maiorana's relatively young age, lack of cancer family history, and low-fat diet implied that asbestos exposure was the cause of his colon cancer. However, the court found this reasoning insufficient to establish causation.
The district judge observed that while colon cancer in a 40-year-old is uncommon, it is not rare enough to conclusively link it to asbestos exposure. Additionally, the latency period of 13 years between asbestos exposure and the onset of cancer was deemed too short compared to the typical latency period of over 20 years, undermining the plaintiff's claims.
Ultimately, the district court concluded that the epidemiological evidence provided by the plaintiff did not meet established sufficiency criteria and was inadequate to support the assertion that asbestos exposure causes colon cancer. The court criticized the plaintiff's expert conclusions as lacking scientific validity and found no evidence of asbestos fibers in Maiorana's tissues. Therefore, the court ruled that the jury's causation finding was based on speculation, warranting a judgment in favor of the defendants.
The district court addressed several post-trial motions from USMP and third-party defendants, asserting that if the Second Circuit reversed the judgment as a matter of law, the appellate court could consider specific conclusions instead of simply reinstating the jury verdict. Key rulings included: (1) denial of USMP's motion for a new trial based on claims of prejudice and erroneous jury instructions regarding superseding cause; (2) denial of judgment as a matter of law for third-party defendants Castagna, Tishman, and Mario DiBono, who argued insufficient evidence of notice regarding asbestos dangers; (3) conditional granting of remittitur, reducing the jury award by $1.2 million to a total of $3.31 million; and (4) denial of motions for common-law indemnification from Mario DiBono by Tishman and Castagna.
The appeal centers on whether the district court's role in evaluating the admissibility of scientific evidence under Daubert extends to assessing the sufficiency of such evidence already presented. The sufficiency inquiry relates to whether the evidence could convince a rational jury that Maiorana's asbestos exposure likely caused his colon cancer. Causation in toxic tort cases typically involves two inquiries: establishing a causal link between asbestos exposure and colon cancer, and determining if the plaintiff fits within the relevant population for causation inferences.
The appellate court concluded that the district court exceeded its authority by shifting from evaluating evidentiary reliability to assuming the jury's role, thereby reversing the judgment as a matter of law favoring the plaintiff. The court reiterated the standard for granting judgment as a matter of law, which requires a complete lack of evidentiary support for the verdict and emphasizes that the district court must view evidence favorably for the nonmovant, avoiding assessments of conflicting evidence or witness credibility.
The district court opinion references the Daubert decision, which recognized summary judgment and judgment as a matter of law as appropriate safeguards against cases based on weak scientific evidence. However, Daubert did not change the standards for these judgments in scientific contexts; Justice Blackmun described them as "conventional devices." The current case focuses on the sufficiency of scientific evidence to support a jury's verdict, distinct from the admissibility of such evidence, which is not at issue since the epidemiological studies had already been admitted at trial.
Daubert primarily addressed admissibility, granting district courts greater discretion to assess the reliability and relevance of scientific evidence. The argument that admissibility and sufficiency are equivalent lacks support in the Daubert opinion, which maintained the traditional sufficiency standard. Justice Blackmun suggested that once scientific evidence meets the admissibility threshold, challenges can be made through cross-examination, contrary evidence, and instructions regarding the burden of proof.
The Daubert opinion expressed confidence in juries' abilities to evaluate scientific evidence, countering concerns that removing the "general acceptance" standard would lead to confusion. The Court dismissed fears of juries being overwhelmed by pseudoscience, indicating optimism in the jury system's effectiveness.
Summary:
The excerpt outlines the appropriate application of summary judgment and judgment as a matter of law in cases involving epidemiological evidence, referencing two key Court of Appeals decisions: Turpin v. Merrell Dow Pharmaceuticals and Brock. In Turpin, the court determined that the plaintiff's reliance on animal studies alone was inadequate, as the defendants presented 35 epidemiological studies showing no causal connection to Bendectin, an anti-nausea medication linked to birth defects. The court emphasized that there was no change to the traditional sufficiency standard for scientific evidence. In Brock, the plaintiff's epidemiological evidence was deemed insufficient as the risk ratios, after adjusting for confidence intervals, included a standard ratio of 1.0, indicating no increased risk from Bendectin exposure; thus, judgment was granted for the defendants.
The excerpt acknowledges that Daubert did not modify the traditional sufficiency standard, but recognizes the complexities trial courts face in toxic tort cases due to competing interpretations of epidemiological data, which inherently involve statistical uncertainty and multiple causative factors for diseases. The court underscores that in evaluating the sufficiency of epidemiological studies, the focus should be on whether it would be unreasonable for a rational jury to find causation based on the collective evidence presented, rather than assessing the validity of individual studies in isolation.
The district court's analysis of the plaintiff's epidemiological and clinical evidence regarding causation was thorough but flawed, particularly in its assessment of witness credibility and the weight of conflicting evidence, which overstepped the boundaries established by Daubert. Specifically, the court erred in several key instances. It dismissed Markowitz's testimony about the presence of asbestos fibers in the cancerous tissues of some asbestos workers, disregarding relevant findings from Ehrlich's study that indicated a correlation between asbestos exposure and colon cancer. The court's rationale conflated general causation with the specifics of the plaintiff's case. Additionally, the court rejected Markowitz's claim that a series of studies showing standardized mortality ratios (SMRs) between 1.14 and 1.47 were statistically significant, asserting that any SMR below 1.50 is inherently insignificant without providing legal authority to support this assertion. The critique suggests it would be more appropriate for the jury to be instructed on statistical significance rather than having the court impose a threshold for the evidence's relevance.
The district court incorrectly dismissed studies by Selikoff and Seidman, which reported Standardized Mortality Ratios (SMRs) of 1.62 and 1.85 for asbestos exposure and colon cancer, as well as Hilt's study showing an SMR of 2.27 for colon cancer in asbestos-exposed plant workers. These SMRs met the court's criteria for statistical significance, but the court ruled they did not sufficiently support the plaintiff's causation claim without providing a clear rationale. The court criticized the methodologies of these studies and asserted that causation claims must be backed by all relevant epidemiological studies. However, such criticisms did not justify the complete rejection of the studies' evidentiary value. Furthermore, the critique of Hilt's study for its small sample size was inappropriate, as the study was admissible, allowing the jury to determine its probative significance. The court's preference for the defendant's studies over those of the plaintiff amounted to an improper evaluation of credibility, failing to consider the evidence favorably for the plaintiff and neglecting to allow reasonable inferences that could support the plaintiff’s case.
Additionally, the court overlooked Albin's 1990 study, which reported an SMR of 1.5, meeting the court's statistical significance threshold. The court placed excessive weight on the studies by Gaensler and Weiss, asserting that the plaintiff's experts did not adequately rebut these studies. It concluded that the experts' claims of a causal link between asbestos and colon cancer were mere conjecture, especially in light of the significant body of evidence supporting the contrary view presented by Gaensler and Weiss. The court notably referenced the Weiss report multiple times, indicating a strong reliance on its findings.
The district court failed to properly evaluate the epidemiological evidence in favor of the plaintiff and improperly substituted its own conclusions for those of expert witnesses. The court's reliance on studies presented by the defendants, while dismissing those that supported the plaintiff, compromised the jury's role in assessing the credibility of competing evidence. Notably, even studies cited by the defendant were acknowledged as flawed by their own expert, highlighting that no study was definitive. The court neglected to mention federal agency reports from OSHA and the EPA that found a strong causal link between asbestos exposure and gastrointestinal cancer, which could have reinforced the plaintiff's expert opinions. This omission raises concerns about the court overstepping its bounds by disregarding expert testimony in favor of its own judgment. Furthermore, the district court's assertion that the jury's verdict lacked evidentiary support contradicts earlier findings that indicated the plaintiff's experts adequately demonstrated a causal relationship between asbestos exposure and colon cancer. Overall, the district court's actions appear to improperly undermine the jury's role and dismiss critical evidence supporting the plaintiff's case.
The district court improperly criticized Dr. Rothman's qualifications and testimony, overlooking its prior acknowledgment of his expertise as an internal medicine specialist. The court rejected Rothman's contributions at the summary judgment stage, labeling this decision as excessively harsh. It further claimed the plaintiff lacked "affirmative clinical evidence," inaccurately categorizing the evidence as solely scientific, despite prior conclusions that Maiorana's medical records and personal history sufficed to establish a causal link between asbestos exposure and his colon cancer. The court placed undue emphasis on the defendants’ reliance on animal studies and downplayed the plaintiff's epidemiological evidence. The court also failed to appropriately consider Maiorana's young age at death and the implications of asbestos exposure on cancer latency periods, ignoring testimony suggesting a link between asbestos exposure and gastrointestinal cancer even at shorter latency times. The ruling indicated that the district court made unsubstantiated scientific conclusions without providing the plaintiff the necessary favorable inferences, contrary to Daubert standards. Consequently, the district court's judgment was reversed due to insufficient epidemiological and clinical evidence supporting the jury's causation verdict. Following this, the document addresses post-trial motions wherein third-party defendants Castagna and Tishman contest the denial of their claims related to constructive notice of asbestos dangers, while Mario DiBono appeals his liability determination, and Tishman and Castagna seek indemnification from DiBono.
The jury verdict and district court rulings regarding claims against third-party defendants Castagna and Tishman are affirmed. The case is remanded to the district court to allow the plaintiff to choose between accepting a remittitur or proceeding to a new trial. Castagna and Tishman, primary contractors in asbestos-related projects, challenged the jury's finding of constructive notice of asbestos dangers, asserting insufficient evidence to impose liability under New York Labor Law § 200. The court upheld the district court's conclusion that sufficient evidence supported the jury's findings of constructive notice, which obligates employers to protect employees from known hazards. Evidence included caution labels on asbestos products, state and OSHA regulations, participation in safety meetings discussing asbestos risks, and complaints regarding inadequate cleanup of asbestos dust.
Additionally, subcontractor Mario DiBono contested the jury's finding of partial liability, but the court determined he was also on notice of asbestos hazards due to the same evidence presented against Castagna and Tishman, supplemented by specific warnings and safety measures from USMP. The appeal focused on whether there remained a triable issue of fact regarding DiBono's negligence.
Mario DiBono had a contractual duty to clean up asbestos debris, yet complaints were filed by Castagna and Tishman regarding DiBono's failure to prevent loose dust from contaminating nearby areas, indicating sufficient evidence of his negligence for jury consideration. Castagna and Tishman sought common-law indemnification from DiBono, but New York law dictates that where fault is shared, contribution rather than indemnity is appropriate, which was reflected in the jury's apportionment of liability among all parties. Consequently, their indemnification claims were barred.
The district court's conditional granting of USMP's remittitur and reduction of the jury verdict necessitates that the plaintiff be given the choice to accept the reduced amount or pursue a new trial, as a court cannot unilaterally reduce damages without offering this option. The case is remanded for the plaintiff to make this decision, and an appeal on the reduced verdict can only arise if the plaintiff opts for a new trial.
In conclusion, the district court's entry of judgment as a matter of law is reversed, reinstating the jury verdict in favor of the plaintiff due to errors in the court's handling of evidence and jury fact-finding. The court also affirms the denial of sufficiency claims from Castagna and Tishman, the jury's finding of DiBono's partial liability, and the denial of indemnification motions against DiBono.
A conditional remittitur has been ordered, leading to the remand of the case to the district court, allowing the plaintiff to choose between accepting a reduced verdict or opting for a new trial. The district court's prior judgment favoring the defendants has been reversed, and the jury's modified verdict is reinstated. The court affirmed the district court's handling of motions from the third-party defendants and directed further proceedings aligned with this ruling. The excerpt references various studies and expert opinions on asbestos exposure and its potential links to diseases, highlighting some criticisms regarding the methodologies used in these studies and their sample sizes. It also notes that the standards for admissibility of scientific evidence have evolved from the Frye rule to the Daubert standard, which no longer requires general acceptance in the scientific community for evidence to be admissible. The district court emphasized that studies with larger sample sizes are statistically more credible and have undermined the plaintiff’s experts' claims linking asbestos to colorectal cancer.
The district court required the plaintiff to substantiate claims regarding the Garabrant report, noting that the plaintiff's experts did not contest Garabrant's reported Standardized Mortality Ratio (SMR) of 1.14. Multiple epidemiological studies cited, including a significant 1992 study, revealed a connection between asbestos exposure and gastrointestinal cancers, with seven out of twelve studies showing statistically significant excesses in mortality. Both the EPA and OSHA have asserted a strong causal relationship between asbestos exposure and these cancers, emphasizing that findings relevant to broader gastrointestinal cancer types are applicable to colon cancer as well.
Dr. Nathan Rothman, a physician who treated the plaintiff, Maiorana, was not considered a qualified expert on asbestos-related diseases due to his lack of familiarity with the relevant literature and latency periods. His testimony aimed to support the elimination of confounding factors, relying on Maiorana's medical history rather than expertise in asbestos.
Furthermore, USMP did not contest the denial of their motion for a new trial, and evidence included warnings about the dangers of asbestos exposure and regulations from OSHA and New York's Department of Labor regarding asbestos levels on construction sites. News reports linking asbestos to cancer were deemed sufficient to establish a factual dispute regarding a defendant's awareness of asbestos dangers.
