The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Arlene Maiorana ("Maiorana") has moved by letter to
reconsider, pursuant to Federal Rule of Civil Procedure
60(b)(2), the opinion of February 26, 1991, In re Joint Eastern
and Southern District Asbestos Litigation (Maiorana),
758 F. Supp. 199 (S.D.N.Y. 1991) (the "February Opinion"), which
granted the motion of defendant Owens-Corning Fiberglas Corp.
("OCF") and others for summary judgment dismissing her claim
based on her inability to show that her husband's colon cancer
was more probably than not the product of occupational exposure
to asbestos. Maiorana previously moved to reargue the February
Opinion, a motion which was denied by opinion of April 2 (the
"April Opinion"). For the following reasons, Maiorana's motion
to reconsider the earlier decision is denied.
The parties, facts and prior proceedings are set forth in the
February and April Opinions, familiarity with which is
presumed. After her motion for reargument or reconsideration of
the February Opinion was denied in the April Opinion, Maiorana
submitted a letter dated April 4, 1991, seeking "to renew
plaintiff's motion for reargument." This letter was treated as
a motion to reconsider the February Opinion based on Maiorana's
alleged "newly discovered evidence;" oral argument was heard on
April 19. After further submissions from both parties, the
matter was fully submitted as of May 3, 1991.
The basis for the present motion is Maiorana's assertion that
this Court did not give proper attention to a supplemental
report of Dr. Markowitz ("Markowitz") dated March 5, 1991 (the
"Supplemental Report"), which was submitted as part of the
original motion to reargue or reconsider the February Opinion.
That report was itself based on Markowitz's review of certain
chest x-rays of Mr. Maiorana taken in December 1982 (the "1982
X-Rays"). Based on these x-rays, Markowitz concluded that Mr.
Maiorana had suffered from parenchymal asbestosis.
The 1982 X-Rays had not been provided to Markowitz or to OCF
prior to the issuance of the February Opinion. Maiorana's
counsel sought to explain this situation based on the, fact
that Maiorana was unaware of the existence of the 1982 X-Rays
prior to January 8, 1991. Although she had initially responded
in July 1988 to interrogatories which sought to identify all
potential sources of medical records for Mr.
Maiorana, and although she amended her answers to those
interrogatories on January 8, 1991 — in an unsuccessful effort
to avoid summary judgment dismissing her wrongful death claim
on statute of limitations grounds, see In re Southern and
Eastern District Asbestos Litigation (Maiorana), 756 F. Supp. 794
(S.D.N.Y. 1991 — Maiorana's counsel asserts that Maiorana
did not recall that her husband had at one time been examined
by Corporate Health Examiners ("CHE") until sometime after
January 8. At that point, Maiorana's counsel contacted CHE and,
after securing an appropriate authorization from Maiorana,
obtained the 1982 X-Rays from CHE at some time after February
13. "Shortly thereafter," the x-rays were forwarded to
Markowitz for further evaluation.*fn1
In his Supplemental Report, Markowitz analyzed the 1982
X-Rays, and as a result amended his prior opinion, expressed in
his original report in November 1990 and summarized in his
affidavit of January 11, 1991, to include the conclusion that
in 1982 Mr. Maiorana had been suffering from "parenchymal
asbestosis." Markowitz explained:
This does not change my opinion in any way that
his occupational exposure to asbestos was a
contributing factor to the development of his
colon cancer, which led to his death. The presence
of parenchymal asbestosis merely confirms the
history of exposure to asbestos.
Maiorana contends that the 1982 X-Rays and Markowitz's
Supplemental Report constitute "newly discovered evidence which
by due diligence could not have been discovered" prior to the
issuance of the February Opinion, and that this new evidence
justifies reversal of the February Opinion. OCF insists that
Maiorana has neither established that the evidence in question
satisfies Rule 60(b)'s test for being "newly discovered," nor
that consideration of the evidence itself would lead to an
outcome different from that reached in the February Opinion.
1. Maiorana Has Not Shown That The Evidence Is Newly
Rule 60(b) does not authorize a court to vacate or reverse an
earlier decision merely because a party has presented new
evidence which might support such a result: the party seeking
to escape the prior ruling must establish that "by due
diligence [the new evidence] could not have been discovered
earlier." Fed.R.Civ.P. 60(b)(2); United States v. Potamkin
Cadillac Corp., 697 F.2d 491, 493 (2d Cir.), cert. denied,
462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983).
Here Maiorana has presented only an affidavit of her counsel
attempting to explain her inability to identify CHE as a source
of medical records prior to her recent amendment of her
interrogatory answers. While her counsel may be qualified to
attest to the diligence of the attorneys in attempting to
elicit this information, he is not in a position to describe
Maiorana's own efforts to discover the evidence before the
issuance of the February Opinion. In the absence of ...