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IN RE JOINT EASTERN & SOUTHERN DIST.

February 26, 1991

IN RE JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION. THIS DOCUMENT RELATES TO JOHN MAIORANA.


The opinion of the court was delivered by: Sweet, District Judge.

OPINION

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 granted.

The Parties

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.

Prior Proceedings

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 Facts

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 ...


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