United States District Court, Southern District of New York
September 16, 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.
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 any
explanation for the delay, the 1982 X-Rays cannot be considered
"newly discovered evidence" for the purposes of Rule 60(b).
This conclusion is also supported by Maiorana's own argument
on her original motion for reargument of the February Opinion.
When she first attempted to introduce the Supplemental Report,
OCF claimed that she had improperly withheld the 1982 X-Rays
because she had not produced them in the course of discovery.
Maiorana responded that the X-Rays were not withheld, because
her 1988 answers to OCF's interrogatories disclosed Mr.
Maiorana's 1988 medical examination by the Sheet Metal Workers
Union, and that
therefore OCF "was on notice of such examination and could have
pursued acquiring any x-rays obtained therefrom." Maiorana
simply cannot claim that the 1988 interrogatory answers were
sufficient to apprise OCF of the existence of the 1982 X-Rays
but that she herself was unable to discover them until two and
a half years after she gave those answers.
Finally, even if Maiorana had established that her inability
to locate the 1982 X-Rays prior to January 8 was not due to a
lack of diligence, the evidence indicates that she and her
counsel did not thereafter act expeditiously to bring the
x-rays and the Supplemental Report to the Court's attention.
Although Maiorana's counsel does not specify the precise date
when Maiorana recalled that CHE might have medical records for
her husband, her authorization for the release of the records
was signed on February 7, nearly three weeks prior to the date
of the February Opinion. Her counsel did not request the
records from CHE until February 13, and did not actually
forward the x-rays to Markowitz until sometime after the
February Opinion was issued.
Both on her original motion to reargue and on the present
motion Maiorana has attempted to explain this lack of
expedition as arising from her belief that the evidence which
she had already introduced was sufficient to defeat OCF's
However, both Markowitz's affidavit and his original report
make explicit reference to the lack of readable x-rays of Mr.
Maiorana: the report states that "I was not able to review
adequate films for the evaluation of fibrosis associated with
asbestos-related disease." In fact the affidavit was one of
Maiorana's main pieces of evidence in opposition to OCF's
summary judgment motion. Certainly the discovery of the 1982
X-Rays was likely to have some effect on the report, and might
even have caused Markowitz to alter his conclusions regarding
the cause of Mr. Maiorana's death. As noted in the April
Opinion, Maiorana's choice not to present the new x-rays to
Markowitz until after OCF's motion for summary judgment had
been granted was clearly a tactical decision which, however
unwise, cannot constitute grounds for reopening the earlier
decision. See April Opinion at 3 n. 2; cf. Parrilla-Lopez v.
United States, 841 F.2d 16, 19 (1st Cir. 1988) (evidence not
presented to decisionmaker based on "conscious decision on
trial strategy" cannot be grounds for new trial).
Therefore, Maiorana has not met her burden of establishing
that the 1982 X-Rays and the Supplemental Report which is
dependent upon them constitute "newly discovered evidence" for
the purposes of Rule 60(b)(2).
2. The Supplemental Report Would Not Call For Reversal Of The
Alternatively, even if the 1982 X-Rays and the Supplemental
Report were considered newly discovered evidence, they would
not provide a basis for vacating the February Opinion under
As set forth in the February Opinion, 758 F. Supp. at 203-05,
and explained further in the April Opinion at 4-5 & n. 3, there
are two different methods by which Maiorana could have
established that her husband's colon cancer was more probably
than not caused by exposure to asbestos: (1) she could have
introduced direct evidence to indicate that the cancer was
caused by asbestos exposure; or (2) she could have introduced
epidemiological data indicating a risk factor of at least 2.0,
together with evidence indicating that her husband would have
qualified as a member of the relevant exposed cohort, to
establish that the epidemiological result could properly be
applied to his case.
a. There is no admissible direct evidence of causation.
By the testimony of her medical experts, Maiorana initially
attempted to satisfy the first alternative. As discussed in the
February Opinion, the opinions of both experts and Mr.
Maiorana's personal physician as to causation were inadmissible
— the physician's because he had not demonstrated sufficient
expertise in the diagnosis of asbestos-related diseases, and
because the assumptions which underlay their opinions were not
adequately supported by the evidence. 758 F. Supp. at 203-04.
None of Maiorana's subsequent submissions has even attempted to
fill in the missing support, see April Opinion at 5, from which
it may be deduced that the assumptions are not supportable.
Because the Supplemental Report depends upon these same
assumptions, its conclusion regarding the cause of Mr.
Maiorana's disease is also inadmissible.*fn2
Nor would the direct evidence of asbestosis itself support a
finding that the colon cancer was caused by asbestos exposure.
As Markowitz himself testified in his original affidavit, there
is simply no causal connection between a disease such as
asbestosis and colon cancer. Of course, given the assumption
— conceded by OCF for purposes of its summary judgment motion
only, see 758 F. Supp. at 200 & n. 2 — that asbestos exposure
does increase the likelihood of contracting colon cancer, and
the assumption that asbestosis is also caused by asbestos
exposure, there will necessarily be a positive correlation
between the incidence of the two diseases, but this statistical
observation does not satisfy the requirement for direct
evidence of biological causation.
b. Maiorana has presented no new epidemiological data.
As for the second alternative, epidemiological data combined
with evidence that the results would be applicable to Mr.
Maiorana, Maiorana originally failed on both counts: she failed
to present either epidemiological data which clearly indicated
a relative risk of 2.0, 758 F. Supp. at 203, or evidence that
her husband had ever been exposed to asbestos in a degree which
might qualify him as a member of any exposed cohort for any
epidemiological study. Id. at 204-05. Indeed, as the February
Opinion explained, Maiorana had presented no evidence that her
husband's exposure to asbestos was great enough to have had any
adverse effect on his health. Id.
If the Supplemental Report were treated as newly discovered
evidence, it would be sufficient to create a genuine issue of
fact only as to this latter point: assuming that Markowitz's
diagnosis of Mr. Maiorana's parenchymal asbestosis is
correct,*fn3 it seems reasonable to conclude that Mr.
Mairoana's asbestos exposure was sufficient to affect his
However, in order to carry her burden of proving that her
husband's colon cancer was more probably than not caused by
asbestos exposure, Maiorana would also need to show that a
person with parenchymal asbestosis had a relative risk of at
least 2.0 for colon cancer. Because she has presented no
studies which indicate any statistical correlation between the
incidence of parenchymal asbestosis and colon cancer, let alone
one which shows that a person with asbestosis of the degree
found by Markowitz would have a relative risk of more than 2.0
for colon cancer, Maiorana has not established any basis for
overturning the prior decision.
Because Maiorana has failed to establish that the
Supplemental Report constitutes "newly discovered evidence
which by due diligence could not have been discovered" prior to
the grant of summary judgment in OCF's favor, and because the
evidence presented in the Supplemental Report itself would not
justify overturning the prior decision,
Maiorana's motion for reconsideration under Rule 60(b)(2) is
It is so ordered.