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IN RE JOINT E. & SO. DIST. ASBESTOS LIT.

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.

OPINION

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.

Background

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.

Facts

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.

Discussion

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
    Discovered.

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 ...


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