The opinion of the court was delivered by: Sweet, District Judge.
Defendants Owens-Corning Fiberglass Corporation ("OCF"),
United States Mineral Products Company ("USMP"), Pittsburgh
Corning Corporation ("PCC"), Fibreboard Corporation ("FC") and
Combustion Engineering, Inc. ("CEI") move for summary judgment
dismissing the complaint of plaintiff Arlene Maiorana
("Maiorana"), which alleges product liability arising out of
exposure to asbestos, on the grounds that Maiorana cannot
establish that her husband's colon cancer was caused by
exposure to asbestos. For the following reasons, the motion is
Maiorana is the widow of John Maiorana, a sheetmetal worker
who died of colon cancer on June 16, 1983. She asserts that her
husband's cancer was caused by his exposure to asbestos and
asbestos-containing products during his construction career.
The defendants are manufacturers of various
asbestos-containing products to which Mr. Maiorana is alleged
to have been exposed.
This case was originally filed on July 28, 1987 as part of a
case brought by sixteen plaintiffs on behalf of themselves and
their deceased spouses, Meilinger v. National Gypsum Co., No.
87 Civ. 5188 (S.D.N.Y. filed July 28, 1987). In that complaint,
each plaintiff alleged a claim for wrongful death and survival
benefits and a claim for loss of services and consortium, and
sought punitive damages against the defendants. In May 1988,
Maiorana's claims were separated from those of the other widows
and filed as an independent case, Maiorana v. National Gypsum
Co., 88 Civ. 3317 (S.D. N.Y. filed May 11, 1988). In October
1990, the case was transferred to this Court for expedited
trial. By opinion of February 1, 1991 the Court granted
defendants' motion for partial summary judgment dismissing
Maiorana's wrongful death claim as time-barred.*fn1
756 F. Supp. 794. Therefore, her only remaining claims are those for
loss of services and loss of consortium.
The defendants assert that summary judgment is warranted here
because Maiorana has not and can not set forth evidence from
which a jury could conclude that her husband's colon cancer was
more probably than not caused by exposure to asbestos. They
contend that, aside from the colon cancer itself, Maiorana has
presented no clinical evidence indicating that her husband
suffered from any asbestos-related infirmities and that
therefore her case is based solely on epidemiological data
indicating an increased risk of colon cancer among people
exposed to asbestos. While the defendants do not, for purposes
of the present motion, contest the existence of a causal
relationship between asbestos and colon cancer,*fn2 it is
their position that Maiorana must prove not only that her
husband's contact with asbestos increased his chances of
contracting colon cancer, but also that the increase in
probability was such that the disease was more probably than
not caused by asbestos exposure.
Markowitz, a specialist in internal medicine and in
occupational medicine, relies on a review of Mr. Maiorana's
health records and "[n]umerous epidemiological studies [which]
show elevated rates of colon cancer among the asbestos exposed
groups" (Markowitz January 11, 1991 Affidavit ¶ 18), none of
which he identifies, to conclude "to a reasonable degree of
medical certainty that Mr. Maiorana's occupational exposure to
asbestos was a significant factor in the cause and development
of his colon cancer and death." Markowitz Aff. ¶ 24. Shy, a
professor of epidemiology and a clinical physician, reaches a
similar conclusion, namely "to a reasonable medical certainty
that Mr. Maiorana's occupational exposure to asbestos was a
proximate cause, and a substantial factor in his development of
colon cancer and of his death." Shy January 10, 1991 Affidavit
¶ 16. He bases this conclusion on review of Mr. Maiorana's
medical records and on the results of several epidemiological
studies, which he describes in more detail than Markowitz,
relating the incidence of colon cancer to asbestos exposure.
Shy Aff. ¶¶ 9-11.
Both Markowitz and Shy expressly condition their conclusions
on the assumption that Mr. Maiorana did not possess any other
characteristics which would have increased his risk of colon
cancer, such as a family history of colon cancer, an unusually
high diet of red meat, or a history of ulcerative colitis or
multiple polyposis. Markowitz Aff. ¶ 20, Shy Aff. ¶ 15.
Finally, Maiorana's affidavit states that to her knowledge
her husband had no family history of colon cancer, that he had
no history of ulcerative colitis or polyposis, and that he "did
not eat a diet of unusually high fat content but rather had and
consumed a ...