*1 Court should retain jurisdiction of this case in order to deter- mine whether the action to be taken the Department Human Services meets the standard set forth in the Court’s opinion, ante 257.
STEIN, J., concurring separate with opinion. CLIFFORD, HANDLER, POLLOCK, For reversal —Justices O’HERN, GARIBALDI and STEIN —6. MAURO, WIFE, AND PLAINTIFFS-AP
ROGER MAURO LOIS HIS PELLANTS, INC., INDUSTRIES, v. RAYMARK CELOTEX COR PORATION, CORPORATION, GAF SOUTHERN TEXTILE COR PORATION, PACOR, INC., COMPA OWENS-ILLINOIS GLASS NY, COMPANY, INC., GARLOCK, INC., CER H.K. PORTER CORPORATION, TAINTEED PRODUCTS FIBREBOARD COR PORATION, DOE, DEFENDANTS, AND JOHN AND OWENS- CORPORATION, CORNING FIBERGLAS PITTSBURGH CORN CORPORATION, INDUSTRIES, INC., ING EAGLE-PICHER CORPORATION, AND KEENE DEFENDANTS-RESPON DENTS. 1, August 1989. February Argued 1989 Decided *2 (Greitzer appellants for argued the cause Gene Locks Pettit, Locks, Karl N. Locks, attorneys; James J. Gene briefs). Miller, on the McConnell, W. and Jonathan respondents argued the cause Rothschild Gita F. attorneys). (McCarter English, & Wendy Mager L. submitted brief on behalf amicus curiae, (Smith, Stratton, American Insurance Association Wise, Brennan, attorneys). Heher & opinion Court was delivered
STEIN, J.
In Ayers
Township,
(1987),
v. Jackson
we
N.J.
recognize
declined
a cause of
Jersey
action under the New
Act,
12-3,
Tort Claims
N.J.S.A. 59:1-1 to
to recover
unquantified
an
risk
resulting
enhanced
of disease
exposure to toxic chemicals. We are now asked to consider
a claim for
cognizable
whether
enhanced risk of disease is
in a
involving personal
case
against
claims
private-entity
*3
plaintiff
present
defendants
aby
asserted
with
injuries attrib-
exposure.
plaintiffs expert
uted to
The
asbestos
testified that
“high probability”
there was a
plaintiff
that
had an increased
contracting
during
risk
expert
cancer
his lifetime. The
was
testify
probable
unable to
it
plaintiff
was
would
cancer,
contract
and
evidence
statistical studies offered to
show a correlation between asbestos-related disease and cancer
Thus,
was excluded.
there is no evidence in the record of the
plaintiff
likelihood that
will contract
The
cancer.
trial court
jury’s
withdrew
plaintiff’s
consideration
claim for
damages based on his enhanced risk
reported
of cancer.
In a
opinion,
Owens-Coming Fiberglas Corp.,
Mauro v.
225 N.J.
Super.
(1988), Appellate
Division affirmed both the trial
court’s exclusion of
correlating
the statistical evidence
asbestos
disease with cancer and the
rejection
trial court’s
en-
certification,
granted
hanced-risk claim. We
I. Plaintiffs, (hereinafter Roger plaintiff) Mauro and Lois Mau- ro, wife, his against instituted this action several manufactur- ers of products injuries asbestos on allegedly based sustained in the course of a result of inhalation of asbestos fibers as Psychiatric Hospital. Ancora employment Mauro’s State repairman employed he as a and later Mauro testified that was until the mid-to-late plumber-steamfitter. From 1964 as containing exposed to materials asbestos 1970s he used was defendants, including covering by pipe and as- manufactured ripping he exposure occurred when was cement. bestos He installing new insulation. old insulation material and out warnings. products defendants’ contained no testified that participated in his co-workers tests Department of Health to deter- by Jersey conducted New plumb- among prevalence of disease mine the asbestos-related in- Plaintiff was in state institutions. ers steamfitters Gann, Occupa- department’s Chief of formed Dr. Peter Medicine, although physical exami- the results of his tional “normal,” he bilateral lung function test were had nation of the dia- thickening of both chest walls and calcification informing of his condition phragm. Dr. Gann’s letter significant and exposure to has been asbestos stated: “[Y]our the risk this increase there is some evidence that development lung cancer.” condition, he of his that when informed Mauro testified contracting can- He angry, very upset.” feared “very became prior employer had died his mother and a cer because specialist, by pulmonary subsequently consulted disease. He *4 1982. every six months since he has been examined whom the x-rays. He testified that has also had annual chest Mauro going I’m is “to find out if for his medical surveillance reason going get it.” get when I’m cancer and Guidice, a Dr. expert was James primary witness Plaintiff’s He ex- plaintiff in 1986. specialist examined pulmonary who lung, lining the of the plained the difference between spongy is the material “parenchyma,” which “pleura,” and the as diagnosed plaintiff’s condition lung. Dr. Guidice inside asbestosis,”1 “pleural x-ray based on examination revealed scarring lung lining, formation, pleural plaque of the and left diaphragmatic calcification. cancer,
Dr. Guidicetestified that asbestos can cause major body and identified four areas in which asbestos- likely lungs, related cancer lining to occur: the around lungs, larynx, gastrointestinal and the entire tract. He testified that because of exposure, Mauro’s asbestos “the risk cancer, cancers, specifically major asbestos-related is a con- acknowledged cern.” Dr. Guidice testify he did not it probable that was Mauro would contract cancer: “There’s a * * * certainly risk. I predict going get can’t he’s cancer. say high All I can is there’s a he’s at risk because * * * young he’s a man and therefore he’s increased risk developing cancer.”
Dr. Guidice also testified about Mauro’s need for medical year surveillance “one to two depending to four times a upon problems,” the individual during which he said could continue gave Mauro’s lifetime. He also testimony about the estimated x-rays, examinations, breathing costs and office visits that components required were of the medical surveillance. In the course of the defendants’ voir dire examination con- cerning qualifications scope Dr. Guidice’s expert and the of his testimony, plaintiff’s sought counsel clarification from the trial court on permitted whether Dr. Guidice testify would be about statistical epidemological indicating studies that be- twenty percent tween forty-three percent of those afflicted eventually with asbestos-related disease die of cancer. Defense argued counsel testimony improper that such was because the "pleural 1Defendants contended that Dr. Guidice's use of the term asbestosis” inaccurate, maintaining by scarring was that asbestosis is characterized of the lung parenchyma, Lee, scarring pleura. But see I. Selikoff & D. (1978) (Discussion Asbestos and Disease etiology 189-206 of characteristics and asbestosis, pleural changes pleura pleural cavity described as result ing dust). from inhalation asbestos *5 during discovery were not referred to or in statistical studies portion report expert report. Dr. The relevant of that Guidice’s being opinion as to an that Mauro characterized limited was following dis- at risk for “the asbestos-related was increased carcinoma; mesothelioma; malignant lar- bronchogenic eases: carcinoma; yngeal gastrointestinal carcinoma.” The trial report, from ruled that in view of their omission his Dr. court testimony precluded giving based on Guidice would be epidemiological such statistical and studies. trial, charge jury
In its to the at the conclusion of the the develop- rejected for enhanced risk of trial court Mauro’s claim explained: ing The court cancer. Roger he the Plaintiff has cancer that will likely
There’s no testimony get damages In not be awarded for future cancer. New any Jersey which is but merely possible probable. get if the were to state, The reason for this rule is this Plaintiff simple. alleged to have been due an cancer sometime in future and same seeking damages he could file a new lawsuit asbestos that point exposure, for that cancer. Accordingly, has risk of if conclude that an enhanced even you developing damages risk. not award cancer, you may any However, permitted jury to consider Mauro’s the court relating to his by emotional distress claim for caused cancer, provided jury found that Mauro developing fear of permitted court injury. The also sustained an asbestos-related his claim for caused jury to consider Mauro’s condition, of future medical as well as cost present medical surveillance. $7,500 in favor jury
The returned a verdict Owens-Corning, Pitts- Eoger against Mauro and defendants Keene burgh Corning, Eagle-Picher Industries. Defendant The found Corporation found not liable on all counts. was companionship loss on her claim for against Lois Mauro consortium. Owens-Corning affirmed. Mauro v. Appellate Division N.J.Super. 196. The court held
Fiberglas Corp., supra, 225
Township, supra, 106 N.J.
v.
Ayers
under
Jackson
*6
prove
degree
unless
could
to a reasonable
of certainty
not,
probable
that cancer
than
was more
his claim for
Mauro,
increased risk of cancer could not be sustained.
N.J.Super. at
Ayers
distinguishable
203-04.
was therefore not
ground
on the
that it was decided within the framework of the
Mauro,
or
Tort Claims Act
that
unlike
in Ayers,
present injury.
Appellate
had sustained a
The
Division also
testimony regarding
found that Dr. Guidice’s
the statistical
properly
was
data
excluded because it had not been furnished
during discovery.
to defendants
II. To set a context our consideration of the enhanced- question record, posed risk by this we inquiry restate the we posed in Ayers preface as a analysis to our in issues litigation: * * * Our evaluation of the enhanced risk we ] focus on a claim[ requires management litigation: stage critical issue in the of toxic tort at in what injury requiring evolution of a toxic should tort law intercede responsible damages? N.J. to party pay [106 579.] important recognize
It is at the outset that the rule of law by plaintiffs, i.e., advocated that tort victims should have a present significant cause of action for unquantified but en- injury, represents hanced risk of future significant departure traditional, prevailing legal principles. general rule is that set forth in the Restatement: injured When an seeks to recover for harms that result in the person may damages he future, is entitled to based harm of one upon sort or another will ensue and its seriousness if it should upon probable ensue.
When a has suffered harm that or person is more less physical permanent * * * damages nature he is entitled recover for harm only already suffered, but also for that which will result in the future. [Restate- probably (Second) ment Torts (1979).] 912 comment e § Actions, also 3 Injury: See Personal Damages Defenses (L. 1984) 3.03 (“Plaintiff Frumer & M. Friedman ed. § is enti- tled to recover reasonably those losses which are * * certain to any loss, occur in the future *. Like other future permanent proved nature of the must be degree to a probability.”); Damages in Tort certainty, of reasonable 1989) (M. (“[SJpecial damages must Actions § 1.22 Minzer ed. special damages certainty those proven a reasonable be insufficiently so too remote proved but as claimed Valuation, Carnation, Chance recovered.”); King, not be Involving Preexisting Injury in Personal Torts Conditions Consequences, 90 Yale (1981) and Future L.J. 1374-75 * * * proof general, many (“In considering the certainty’ with equate tort either ‘reasonable recent cases proof, a reason more-likely-than-not standard of use traditional *7 standard, certainty least the actual ably probable reject or at Damages standard.”); (1988) (“Plaintiffs 22 Am.Jur. 2d 677 § damages proof prospective to a reason have of who submitted certainty question submit the to degree are entitled to able of * * Damages (1966) *.); (“[N]o recovery C.J.S. jury 25 31 the § consequences future possibility for the mere of can be allowed wrongdoer; suggested in order injury by inflicted a for of an damage, an of it must to as element future results be includible probable reasonably reasonably they that are certain appear as Ele Annotation, Suffering and follow.”); Future Pain 423, 424 Injury, 81 A.L.R. Damages Physical ment of for personal injury, (“It in an for a (1932) is settled that action well part injured person the in pain suffering on the of future and of the consequence injury proper constitute a element of the allowed, requisite may provided there is the damages which be pain suffering will re certainty or such and probability that sult.”). prospective is long-standing Jersey in New that rule reasonably proba- they are unless are not recoverable 166, (1959). The Sherry, v. N.J. 29 174-75 Coll to occur.
ble explained by adopting Justice this standard was rationale Division, in Budden v. Francis, sitting Appellate in then Goldstein, N.J.Super. 340, (1957): 346-47 43 damages, can it is that be recovery of well known no In the admeasurement wrongdoer. injury of inflicted a future an allowed for consequences possible damage, of suggested future to be includible as an element results
In order 134 it must are certain or they reasonably appear reasonably probable follow. * * * throughout of the authorities use the [M]any country expression certain” or “reasonable as the test and consider “reason- “reasonably certainty” or “reasonable ably probability” others probable” inadequate erroneous; the latter statement. cases do seem Our to have dealt accept specifically significance with the have whether the two the same question relation to quantum interchangeably. so be used It seems to us that in proof, conflicting a resolution of the involved, interests reasonable is the probability
just to be our view comes down to this: yardstick applied. Basically, a an is which which is a possible, ensue, risk consequence may possibly injured which the bear must because the cannot person law be administered so conjecture justice as to do efficient if are reasonably to be used speculation damages. as a measure of On other a hand, which stands on consequence although reasonable it not certain plane probability, occur, may damage against considered in the evaluation defendant. this justice through general just to the extent men can achieve way, rules, warring balance interests is accomplished. [Citations omitted], Corp., Lorenc v. Chemirad N.J. 56, (1962) 37 (upholding 72 Cf. supported finding verdict where evidence could have probably would develop malignancy due to chemical Degenring, Kimble v. burns); N.J.L. 602, (Sup.Ct.1936) “([I]n * * * tort, an action of included the measure of are prospective damages
those which can be estimated as Devlin v. Johns-Manville reasonably occur.”); certain Corp., N.J.Super. (Law Div.1985) (Rejecting 564-65 damage claim for enhanced risk of cancer where satisfy proof cannot reasonable medical standard of *8 required prospective injury). to recover for
Although most of courts that have addressed claims for applied enhanced-risk in toxic-tort cases have general requiring proof rule injury the threatened see probable, 139-41, at subject on the commentators infra have generally encouraged recognition of an enhanced-risk cause of contingent action such cases even if the threat of See Gale & harm than probable, unquantified. is less or is Goyer, Recovery Cancerphobia and Increased Risk for of Cancer, Cumb.L.Rev. 723, Seltzer, Personal (1985); 15 741-44 Injury Litigation: Proposal Hazardous Waste A Tort for Reform, 10 B.C. Envtl. L. Rev. 797, (1982-83); Note, 844 Aff.
135 Injury, 18 L. Actionable Ga. anas Cancer Risk Increased of Note, 563, (1984); Inapplicability Tradi 591-92 Rev. of Example to Environmental Risks: The Analysis Tort tional Compensation, 35 Stan. Pollution Victim L. Toxic Waste of Comment, 575, (1983); Risk Disease Increased Rev. 618 of Proposal Relief, 60 A Judicial Hazardous Waste: for Reina, Recovery (1985). But see L. Rev. 643-48 Wash. for Problems with and Increased Risk Cancer: Fear Cancer of of Solution, Litigation 7 The Rev. Proposed and a Gideon of of for in (1987) (advocating non-recognition of cause action proof probability); cancer absent of creased risk of Action, Note, Risk Analysis the Enhanced Cause An of (1988) (asserting that relaxation Rev. statute of L. Vill. doctrine, with al single-controversy combined limitations surveillance, preferable recog lowing recovery for medical injury). risk of future unquantified for enhanced nition of claim en enhanced-risk cause of action Generally, advocates of an ill-suited to tort doctrines are the view that “common-law dorse claims, and that some form injury the resolution of [toxic-tort] required if statutorily-authorized compensation procedure is chemical contamination are by victims of injuries sustained Specifi supra, 106 at 581. fairly Ayers, redressed.” N.J. to be urged of action is enhanced-risk cause cally, recognition of an of limitation and posed by statutes primarily to avoid the bar rule, plaintiffs exposed to entire-controversy and to afford recovering medical surveillance chemicals a basis for toxic Comment, See, damages. Increased e.g., emotional distress Proposal Judi A Disease Hazardous Waste: Risk 644-45, 652. Relief, supra, 60 Wash.L.Rev. cial arguments supporting recently addressed several We Town- Ayers claims in v. Jackson of enhanced-risk recognition limitations and respect to the statute of supra. ship, With cases doctrine, in toxic-tort we held that single-controversy N.J.S.A. single limitations, nor the statute doctrine controversy neither of action for prompted by cause will 2A:14-2, timely-filed preclude tortious conduct at related to the of a disease the future “discovery” *9 litigation. issue in this The bar of the of statute limitations is avoided because, under New the of rule, cause action does not accrue until Jersey’s the discovery injury indicating victim is aware of the or disease and of the facts a third single is be the responsible. Moreover, rule, intended party controversy " litigation ‘to avoid the and wasteful of of delays the expense multiplicity ” splitting which of a results the cannot controversy,’ sensibly applied to a toxic-tort claim filed when disease is manifested after the years exposure, the same because sued to recover for merely previously property damage injuries. or other a rule such the case, literally since, inapplicable noted, as the second cause of action does not until accrue the disease is joined manifested; it could not have been with the hence, earlier claims. [106 (citations omitted).] N.J. at 583 In Ayers, we also explained significant the distinctions be- damages tween a claim for on injury based enhanced risk of damages. a claim for medical-surveillance damage The enhanced risk claim seeks not award, because of any expenditure injury but because funds, contend that the plaintiffs their unquantified though health life should be even no expectancy presently compensable, evidence disease is does manifest. Defendant the causal relation- dispute between the to toxic exposure chemicals and the ship plaintiffs’ plaintiffs’ risk of diseases, increased but contends that the will plaintiffs become ill from their to chemicals is too remote to actually exposure warrant under of tort law. compensation principles the claim for contrast, medical surveillance does not seek By compensation injury, for an seeks but rather unquantifiable specific monetary measured the cost of medical examinations. The invasion for periodic which sought redress is is the fact have been advised to plaintiffs spend money for medical tests, cost would not have incurred absent their they exposure toxic chemicals. Defendant contends that the claim for medical surveillance damages cannot be as a matter of if sustained, law, enhanced risk plaintiffs’ is not to be In our sufficiently probable compensable. view, however, recognition of the medical surveillance claim is not on dependent necessarily recognition of the enhanced risk claim. N.J. at [106 590-91.] Although Ayers, rejected we enhanced-risk claim in partially on brought the basis that the action was under Act, Jersey 12-3, New N.J.S.A. id. Tort Claims 59:1-1 to 598-99, upheld the right we an unquantified with exposure enhanced risk of disease due to toxic chemicals to expenses: recover medical-surveillance Accordingly, we hold that the cost of medical surveillance is a compensable through item of demonstrate, where reliable proofs testi- expert significance and extent of mony predicated upon chemicals, the chemicals, the seriousness of the diseases for toxicity which individuals
137
in the chance of onset of disease in those
are at
the relative increase
risk,
diagnosis,
of
that such surveillance to monitor
and the value
early
exposed,
In our view,
to toxic chemicals is reasonable and necessary.
effect of exposure
rejection
holding
thoroughly
of
claim for
consistent with our
plaintiffs’
this
injury.
damages
damages
risk of
That claim seeks
based on their enhanced
or
extent,
without
of its
health,
likelihood,
proof
impairment
plaintiffs’
claim seeks reimburse-
value.
In
the medical surveillance
contrast,
monetary
examinations
that are
ment for the
dollar costs
periodic
medically
specific
notwithstanding
health
the fact that the extent of
impaired
necessary
plaintiffs’
at 606.]
N.J.
[106
is unquantified.
concerning
right of a
any question
Nor is there
exposure
physical
because of
plaintiff who has sustained
damages for emotional distress
to toxic chemicals to recover
an enhanced
that he or she has
on a reasonable concern
based
See, e.g., Devlin v. Johns-Manville
risk of further disease.
in this
at 560-63. The trial court
supra
N.J.Super.
202
Corp.,
jury.
claim to the
plaintiffs emotional-distress
case submitted
cognizable
urged that the claim was not
appeal, defendants
On
evidencing plaintiffs
physical symptoms
of a lack
because
court, noting
upheld
trial
Appellate
distress. The
Division
distress has resulted
‘substantial
“[pjroof
that emotional
plaintiff suffers
required
when
bodily injury or sickness’ is
to defendant’s
present physical
a
disease attributable
209;
N.J.Super. accord Herber v.
conduct.” 225
tortious
Cir.1986)
79,
(3d
(applying
85
Corp., 785 F.2d
Johns-Manville
399,
law);
95
409-11
Jersey
Dollinger,
Evers v.
N.J.
New
cross-peti
in their
(1984).
this issue
Defendants also advanced
(1988).
certification,
denied.
341
which we
See
N.J.
tion
question
Hence,
do not reach the
although we need not and
physical injury
toxic chemicals
exposure to
without
whether
damages
on
based
a claim for emotional-distress
would sustain
disease,
damage claim is
such a
fear of future
a reasonable
here,
where,
plaintiff’s exposure to asbes
cognizable
as
clearly
injury.
physical
tos has resulted
Thus,
substantially responded to
law has
our decisional
justifying
as
advanced
principal arguments
have been
stan-
probability”
the traditional “reasonable
departure from
chemicals to recover
plaintiffs exposed to toxic
permit
dard to
possible
unquantified
for a
enhanced risk
dis-
Jersey
New
neither
ease.
the statute
nor the
limitations
single-controversy
plaintiff’s
will
doctrine
bar a toxic-tort
time-
damage
ly
discovery
claim instituted after
of a causally-related
Ayers, supra,
Exposure
disease.
Based on these
in our decisional
defen
argument
asserted
plaintiff’s
dants
at oral
premised
that
claim
fully
on enhanced risk of
adjudicated by
disease had been
to the
jury
submission
claims for medical surveillance
distress, contending
and emotional
that there were
other
no
components
the enhanced-risk
of action.
cause
Defendants’
argument
misconceives
essential
of a
predicat
nature
claim
stated,
ed on enhanced risk
Simply
of disease.
it is a claim for
damages
prospective
based on a
injury, conceptually analogous
claim of personal-injury plaintiff
with damaged
knee
damages
to recover
prospective
for the
onset of an arthritic
injury.
condition that
result from the knee
See Jackson v.
394,
Corp.,
(5th Cir.) (de
Johns-Manville Sales
781 F.2d
412
scribing
Acceptance Corp.
General
Layton,
Motors
v.
353
(Miss.1977)
749
plaintiff
So.2d
with bruised knee recov
—where
damages
prospective
ered
“indistinguishable”
arthritis —as
plaintiffs’
prospective cancer),
asbestos
claim for
cert.
denied,
1022,
478
3339,
(1986).
92
U.S.
S.Ct.
L.Ed.2d 743
law,
our case
Under
the personal-injury
conceivably
damages
could
medical-surveillance
and emotional-dis
damages
tress
on
injury might
the basis that the knee
cause
arthritis, but could
prospective
not recover
for the
arthritic condition—the “enhanced
risk”
its
arthritis —unless
occurrence was
established as a matter
reasonable
Sherry, supra,
Thus,
Coll v.
probability.
29 N.J.
174-75.
fact
Mauro’s claims for medical surveillance and emo-
distress,
cancer,
tional
his
attributable to
enhanced risk of
were
jury
submitted to the
does not exhaust his claim for
prospective
based on the
occurrence of
“enhanced
cancer—the
risk” of cancer.
Corp.,
Accord Herber v. Johns-Manville
supra,
question
prospective injury v. would Wilson Johns-Manville 111, (D.C.Cir.1982) (reversing Corp., 2d 119-21 Sales 684 F. grounds wrongful-death dismissal on statute of limitations brought by employee who contracted asbesto action widow mesothelioma, holding malignant that cause sis and died from reasonably cancer or should have of action accrued when was discovered, recognizing that cause of action for en been District of Columbia law would hanced risk of cancer under probability proof of medical required have reasonable occur); Corp., Pollock v. Johns-Manville Sales cancer would (D.N.J.1988) 489, (granting F.Supp. 492 defendant’s motion 686 claim where with asbestos-re to strike enhanced-risk prove injury lated cannot reasonable occur); Inc., Transfer, Heat cancer will Stites v. Sundstrand 1516, (W.D.Mich.1987)(granting defen F.Supp. 660 1523-26 plaintiff’s summary judgment motion for on enhanced- dant’s toxic chemicals due to lack of risk claim on based proof satisfy Michigan’s requirement of reasonable sufficient occur); certainty that future harm will Anderson v. W.R. 1219, (D.Mass.1986) (dis Co., F.Supp. 628 1231-32 Grace & unquantified missing trial claims for based on before proof of risk of future absent reasonable enhanced occur); prospective City v. probability that harm will DeStories 604, 705, Phoenix, (Ariz.App.1987) 154 Ariz. 744 P.2d exposed to (denying unquantified enhanced-risk claim of worker injury); physical symptoms Eagle asbestos but without 517, Indus., Cox, (Fla.App.1985) 2d Inc. v. 481 So. Picher (declining recognize unquantified claim for enhanced risk of asbestosis); brought by plaintiff cancer with Larson v. Johns 1, (1986) 8-9 Corp., 427 Mich. N.W.2d Manville Sales wrongful-death (extending limitations for actions statute of employees died from by representatives of with asbestosis who Michigan acknowledging that under law claim based cancer and required proof of on enhanced risk of cancer would have occur); certainty that cancer would Devlin v. reasonable N.J.Super. at 564-70 Corp., supra, 202 Johns-Manville
141 (dismissing suffering claim workers allegedly from asbesto for unquantified plaintiffs’ sis enhanced risk of based on cancer inability Jersey’s to satisfy New standard of reasonable medical probability occur); Raymark that disease will v. Sorenson Indus., Inc., 954, 740, Wash.App. (1988) (ex 51 742 756 P.2d cluding evidence that asbestosis risk of cancer increases where plaintiff prove unable to reasonable that cancer will occur); Corp., v. Pa.Super. Giovanetti Johns-Manville 372 cf. 431, (1988) 871, 539 (acknowledging Pennsylvania A.2d permits proof possible law future injury litiga asbestos Pennsylvania tion subjecting because of rule all asbestos-relat injuries limitations); ed to standard statute of Cathcart v. Insulation, 493, Pa.Super. Keene .2d Indus. A (1984)(acknowledging Pennsylvania 500-01 that under law stat relating ute of all claims limitations for to asbestos begins plaintiff to run have when knew or should known of injury). initial Corp., But see Valori v. Johns-Manville Sales (D.N.J. 11, 1985) (1985 6074) (allow No. 82-2686 Dec. Westlaw ing plaintiff suffering from admission of evidence that asbesto contracting lung sis forty-three percent had likelihood of cancer cancer); prove on claim based enhanced risk of Lewitt v. 81-2950, (D.N. Corp., op. No. at 5 Johns-Manville Sales letter 11, 1985) (holding J. Mar. evidence of admissible statistical asbestosis, among plaintiffs increased risk of with al cancer though probability, support less than a reasonable medical cancer); claim for enhanced risk of v. Johns-Manville Gold 80-2907, (D.N.J.1984) Corp., op. 34-37 Sales No. bench (allowing of evidence that with admission asbestosis contracting exposed forty- forty-five-percent was risk of support cancer to on enhanced risk of based cancer).
Although weight authority compellingly argues against recognition of an enhanced-risk-of-cancer claim proof an that satis- with asbestos-related absent analysis our probability, fies the standard of reasonable medical policy arguments incomplete without consideration of would be *14 among is the Foremost these general rule. oppose may pre- prospective-injury of the concern that deferral eventually occurs because the disease any recovery when clude prove attempting in to inherent difficulties of the substantial supra, 106 N.J. at Ayers, cases. in toxic-tort See causation deferred, If the enhanced-risk claim is 585-87. injury occurs will inevita- the second asserting the claim when injury did not result the defense that the bly confront intervening product “the to toxic chemicals but was at 598. or causes.” Id. events risk of significantly enhanced Recognition of a claim for capacity to deter the enhance the tort-law’s disease would also substances, thereby ad- chemicals and improper use of toxic polluters deter who dressing that tort law cannot the contention exceeding the risk of disposal as proper cost of use or view the liability. at 604. tort Id. challenged also
The rule of reasonable future-injury artificial, rejects all-or-nothing standard that as an barely short falls supported by substantial evidence claims viewpoint was re quantum proof. This required in v. Johns-Man Court’s decision Gold by flected the District 36-37, 80-2907, in op. at supra, No. bench Corp., ville Sales dem plaintiff’s exclude evidence motion to denying defendant’s risk of cancer: onstrating enhanced Can I really put the term is too simplistic. fixation on “possibility” Defendants’ “greatly on a increased probability” terms "reasonable probability” or the other? a decided in one direction to see tip scale and expect contracting among cancer chance of indicate a 40 45 percent scientific reports the future onset to determine whether It will be for the workers. asbestos subject based on the presented by of cancer is proofs probable * * the defendants *. cross-examination reasonable-probability adopt the appeared The court Gold jury to determine whether standard, permitted but to meet it. proofs were sufficient recognition of limiting weigh in favor of considerations Other medi- prove to a reasonable claims to those enhanced-risk Those claims injury. likelihood of future probability the cal standard, presented juries, that fail to meet this if would require damage prospective, spec- awards for diseases that are ulative, likely speculative and less than to occur. The more disease, proof of juries’ future the more difficult would be the calculating compensation. Inevitably, fair damage burden occur, rendered awards would be for diseases that will never exacting higher premi- a societal cost the form of insurance *15 higher product ums and costs.
The pending vast number of asbestos-related claims now in throughout state federal country courts the is a matter of public record. The litigating formidable burden of such claims significantly greater if percentage would be a substantial disposition damage these cases also involved claims for the relatively unquantified enhanced risk of future disease. Court, however,
Equally persuasive availability to this the is opportunity of a future to assert such claims if and the when occurs, present availability disease of medi- combined with the damages in appropriate cal surveillance and emotional distress 135-37). view, Supra cases. In our removal of the statute- single-controversy of-limitations and as a to the doctrines bar institution suit when the disease for which is at risk ultimately quality remedy occurs enhances the of the that tort occurs, provide law can in such cases. If the disease never presumably recovery. If there will be no claim and no it does occur, litigation tangible resultant will involve a present injury, speculative injury. rather than a claim for future Hence, juries better to award in an will be able fairly severity amount that reflects the nature and of the plaintiff’s injury. acknowledge imper- that our of this issue is
We resolution cases, example, fect. statistical asbestos available correlating evidence asbestos-related disease with future appears onset of cancer to fall short —as evident from the was proffered establishing in evidence this case—of the occurrence probability. of cancer as a matter of medical reasonable Cf. 144 Corp., supra, N.J.Super. at 568
Devlin v. Johns-Manville
(observing
related cancer are
that “asbestosis
asbestos
Undoubtedly,
processes.”).
there
separate and distinct disease
evidence,
statistical
combined
will
individual cases which
degree
by
sustained
particular
with
likelihood of future disease as a
plaintiff,
will establish the
See,
probability.
e.g.,
Johns-Manville
matter of
Jackson v.
24;
n.
Corp., supra,
III. plain respect ruling precluding With to the trial court’s expert testifying tiff’s witness from on the basis of statistical report any in his or in epidemiological studies not contained material, imposed discovery other we affirm the restriction on opinion in expert substantially for the reasons set forth Appellate N.J.Super. Division. 225 at 206-07. Judgment affirmed.
HANDLER, J., dissenting. answer, presents an foreshadowed but
The Court
this case
expressed,
question implicit Ayers
v. Jackson
to the
(1987):
consider
Township,
I. 22,1983, April Roger On Mauro and his complaint wife filed a against several products manufacturers of asbestos injuries he sustained as a result of inhalation of asbestos during fibers employment course of his at the Psychiatric Ancora State Hospital present. from 1964 to the From 1964 to the mid-to- 70s, exposed late Mauro used or was to asbestos-containing including pipe covering materials and asbestos cement manu- factured defendants. through 1981 Mauro found out Jersey Department a New screening program although
of Health physical his exami- lung “normal,” nation and function test was he had bilateral pleural thickening of both chest walls and calcification of the diaphragm. Gann, Dr. Occupational Chief of Medicine of the Jersey Department New of Health informed Mauro of his by stating, condition exposure “Your to asbestos has been significant and there is some exposure may evidence that this your developing lung have increased risk of cancer.” trial, plaintiff Guidice, At pulmonary called Dr. James a specialist, expert diagnosed as an witness. He dis- asbestosis,” “pleural ease as by scarring lung evidenced of the lining, pleural plaque formation, diaphragmatic calcifica- expert tion. The testified without substantial contradictions that asbestos can particularly cause cancer lungs, larynx, gastrointestinal According tract. to Dr. Guidice, “probability” there was a that because of Mauro’s cancer, exposure, specifically “asbestos the risk of asbestos-re- cancer[,] concern,” lated is major high and that “there is a probability he’s at developing ... increased risk ... can- stated, however, cer.” Dr. Guidice quantified that he had not either contracting Mauro’s increased risk of cancer plumbers increased risk of asbestos-related cancer and ste- occupational Also, state, amfitters as an group. he could not degree probability, reasonable medical that Mauro would get did, however, attempt cancer. He to refer to statistical and *18 indicating range twenty- forty- epidemiological studies percent malignancy due to three chancé asbestosis. trial, At the end of the the trial court refused submit to the developing cancer. jury Mauro’s claim for enhanced risk of Jersey damages may “in not be The court found that New merely possible but not awarded for a future which probable.” Appellate affirmed the trial court’s Division ruling Ayers, plaintiff prove unless could to a that under more degree certainty of medical that cancer was reasonable not, probable than his claim for increased risk cancer could This affirms N.J.Super. sustained. 225 196. Court now judgment, finding cannot Appellate Division enhanced risk of cancer unless those receive prospective damages reasonably probable are to occur. The does, however, plaintiff to sue defendants at some Court allow occurs, despite the entire later date the cancer controver when of limitations. sy doctrine and the statutes
II. by now any recovery The Court refuses allow palpable and suffering pre-cancerous lung disease for the The Court risk that he or she will incur cancer. demonstrable wisdom, legal namely, our traditional purports to follow ancient compensable define years have sufficed to rules that over damages, expressed more rules of injury. These conventional Goldstein, N.J.Super. thirty years ago, e.g., Budden v. than damages for 340, (1957), permit recovery do not 346-47 occur, reasonably probable to injury unless it is prospective (1959). Such a rule ibid.; Sherry, 29 174-75 v. N.J. Coll gener adequate just and because it always considered has been measurement of such dam greater assurance that the ates a specula conjecture and suffused undue ages would not be tion.
However, of that rule to difficult invocation Court’s posed current case is ritualistic. by the question of rule, The traditional at least considered in context of this case, longer can knowledge no be reconciled with the experience emerged years. has in recent This common knowledge experience confirms for us that there is a genuine, substantial, palpable person risk that a with defendant’s condition will incur cancer as a result *19 effectively to The asbestos. Court smothers that under- standing applying it on when insists the traditional rule of damages.
I truly indisputable stress what seems genuineness, —the actuality, gravity of the risk exposed of cancer to one to long period asbestos over a of time currently manifesting asbestos-related disease. The itself acknowledges Court that “significant.” However, this risk is it concludes that it cannot compensable as an element of because this would “represent significant departure traditional, from prevailing ] legal principles.” Ante at 132.
The Court refusing advances several reasons for depart from those deny recovery plaintiff conventional rules and to First, based on his enhanced-risk claim. it finds that most courts that have considered the issue have concluded get damages prospective cannot for the disease unless reasonably the disease probable is to occur. Several federal Jersey, however, district court decisions in New have allowed evidence of enhanced risk of cancer in litigation. asbestos For example, Johns-Manville, 80-2907, in Gold v. No. op. bench (D.N.J.1984),Judge pretrial hearing Ackerman ruled at a plaintiffs in an asbestos action could submit evidence on the incremental contracting risk of cancer where scientific evidence forty- forty-five percent indicated a contracting chance of cancer. at evidence, Id. 35. The court held that because of this improper risk, it was to take the issue of increased which was factual,” “essentially jury. from the The court stated: contracting scientific indicate a chance reports forty forty-five percent among jury cancer asbestos workers. It will be for the to determine whether the future onset of cancer is based on the probable proofs presented by [Id. subject to cross-examination the defendants. plaintiffs 36-37.] Johns-Manville, 82-2685, also op. See Iaconelli v. No. bench (D.N.J. 12, 1985) (holding Nov. claim for in cognizable creased risk cancer was because had a diagnosed presently physical injury pleural “substantial asbes — tosis”); Corp., Valori v. Johns-Manville Sales No. 82-2686 (D.N.J. 11, 1985) (1985 6074) (allowing Dec. Westlaw admission plaintiff suffering forty- evidence that had asbestosis percent contracting lung prove three likelihood of cancer to cancer); on based enhanced risk of Lewitt v. Johns-Man 81-2950, (D.N.J. Corp., op. ville Sales No. letter 5at March 1985) (holding statistical admissible evidence of increased risk asbestosis, among plaintiffs although of cancer with less than a probability, support reasonable claim for enhanced cancer). Thus, although risk of courts have denied enhanced- claims, risk some courts have found that the issue of whether an enhanced risk of cancer deserves factual Moreover, inquiry growing for a determination. there is *20 need, acknowledgement grounded justice, in and fairness allowing recovery significant for a based on such a risk of See, e.g., Goyer, Recovery Cancerphobia harm. Gale & for 723, Cancer, and Increased Risk 15 Cumb.L.Rev. 741-44 of (1985); Seltzer, Litigation: Injury Personal Hazardous Waste 797, Proposal Reform, A Tort 10 B. 844 for C.Envtl.Aff.L.Rev. Note, (1982-83); Increased Risk as an Actionable Cancer of 563, (1984); Note, Injury, Inapplica 591-92 18 Ga.L.Rev. The bility Analysis Tort to Risks: Traditional Environmental of Compensation, Example The Toxic Pollution Waste Victim of 575, Comment, (1983); 35 618 Increased Risk Stan.L.Rev. of Proposal Disease A Judicial Hazardous Waste: for 635, (1985). Relief, 60 643-48 Wash.L.Rev. noted, Court, inveighs against prospect as also of do not meet the speculative awards. Enhanced risk claims that standard, Court, according to the reasonable require damage awards for presented juries, “if to would 150 speculative, likely prospective,
diseases that are and less to 142-143). believe, however, occur.” I do not Ante that of any speculative enhanced cancer are more than risk damage they other claims and that be allowed should denied they easily quantifiable. are not because just I stress if it is and it a is, and victim in one fair, only compensate right of case for an enhanced risk future it be unquantified cannot disease, involving in a second case a also claim of enhanced deny recovery unquantified injuries risk. ... redress for ... deny because cannot “[T]o merely be measured with would of exactitude constitute a funda- precise perversion justice.” (1979) v. Berman mental Allan, N.J. 421, 433 principles (Handler, concurring dissenting part). “[Ejven in in and where the J., part measuring damages genuine, been have we have refused to pitfalls grapple recognize justness with the in order to and fairness of complexities (1981) (Handler, concurring relief.” Schroeder v. Perkel, N.J. in J., dissenting part). in It is the part, reality evidence, presented by informed and tested sense experts, common by by experience, ordinary damages. might is the benchmark for of these “Some losses ... be hard to puzzling difficult to define and sense, are, evaluate. nonetheless, They actual and constitute a sound a lawful claim basis for for redress compen- (Handler, concurring sation.” Berman v. 80 N.J. at 446 Allan, supra, J., dissenting part). (Handler, dissenting).] 106 N.J. at 617 [Ayers, part J., Indeed, solution, Court’s any present denies which recov- ery, recovery nevertheless would allow where claim for probability. increased risk amounts to reasonable medical suggests, This if example, a has a chance 51% cancer, developing damage his or her be would decided however, jury. drawing, This line seems unfair and arbitrary. example, For why should a recover developing prostate risk of cancer per- where the normal 51% (a son’s risk increase due to defendant’s 30% 21% conduct) not an but individual has a risk skin who cancer 25% (a person’s where the normal risk increase due to 1% 24% conduct)? just defendant’s It be more if would fair and weigh could the enhanced risk of the defen- cancer with in causing plaintiff’s dant’s conduct current condition and then appropriate damages compensate assess the plaintiff ade- *21 quately.
The
also
public-policy
Court
bases its decision on
considera-
First, it
tions.
finds that
are vast
of
there
numbers
asbestos-
litigating enhanced-risk claims
and that
claims
courts
related
on the
Why? The claim based
“too burdensome.”
would be
only one element
of cancer would be
risk
enhanced
proofs
medical and relevant
presented with other
that would
general condition. The
injuries and
plaintiff’s
relating to a
relating to this
explain
how evidence
not
does
bother
Court
plain-
proofs relating to
element,
to admissible
in addition
one
consequences,
future
shortened
and its
current disease
tiff’s
surveillance,
or her
his
the need for
expectancy,
life
losses,
anguish,
per
economic
mental
distress and
emotional
allowable,
concededly
like,
are
all of which
claims and
quod
litigation.
does
this
Nor
complicate or burden
unduly
would
can
solution will and
avoid
explain
its
whether
the Court
today, surely tomorrow. The
if not
burdening
legal system,
relating
any claims
for the future
proposes to reserve
Court
exposure.
an
toxic
Such
to the current
attributable
cancer
will
actions are concluded
brought long after the current
action
and administrative obstacles.
procedural
present enormous
will have
when evidence
undertaken
Many such actions will be
dimmed, and tran-
vanished,
gone, memories
will be
witnesses
discovery, examina-
preparation,
scripts,
purposes
needed for
reconstruction, will have
cross-examination, and record
tion
such future
arise from
problems
that will
disappeared.
justice.
for the administration
not
well
lawsuits do
bode
adequa-
deep doubts about
also cast
These considerations
in this kind
remedy the Court fashions
cy of the
o’f
the statute
magnanimously rules
case. The Court
any
not bar
controversy doctrine will
single
limitations and the
if
against
defendant
this
cancer
lawsuit for
majority,
According to the
cancer.
develops an asbestos-related
single contro-
and the
limitations
adopting the statute of
“[b]y
cases we have
of toxic-tort
to the realities
versy doctrines
applying the reasonable
potential unfairness
ameliorated
144).
litigation.” Ante
type of
standard to this
that will
obstacles
However,
administrative
procedural and
only greatly burden
future lawsuit -will
such a
encumber
*22
justice, they
remedy
the administration
will render
problematic
illusory.
so
as to be
I do not believe that the
to
Court’s solution ameliorates the unfairness
these
victims
exposure.
legitimate
sweeps
asbestos
It
their
for re-
claims
carpet.
judicial
dress under a
view,
my
majority’s
allowing
In
solution of
to
develops
sue
later if
unjust
defendant
he
cancer is unfair and
comport
public
and does not
with broader notions of sound
policy.
light
knowledge
experience,
In
of current
there
and
is
why plaintiff’s
no valid reason
risk of
enhanced
cancer should
present injury
an
by
be considered
element
a
caused
compensated
Ayers
defendant and to be
now. See
v. Jackson
supra,
(Handler, J.,
Township,
dissenting).
I to the feasibility permitting return fairness and current recovery present disingenuous, for the risk of It cancer. seems callous, suggest plaintiff’s if not risk of cancer is not palpable why quibble probable possi- and between and serious— agreed significant? it is ble when that the risk is When reality of this risk is is confirmed the fact that now required to submit to bi-annual cancer examinations willing pay defendant more than for the of this cost society plain- medical surveillance? If the rest of the treats present risk injury, why tiff’s enhanced of cancer as a should deny by denying compensability? the courts its existence its cancer, having only does not ask Plaintiff he wants to recover for the unusual risk his health life and tangible significant developing likelihood of cancer. He compensation, only quite should seeks fair which assessing. capable of supra, Ayers Township,
As I v. Jackson 106 N.J. stated 621: *23 in is limitation of the Court this case by severe imposed right in with unfair. No her mind would trade and
inadequate person places suggest Does this a have to one of these not would person any plaintiffs. a sum of more than that here the considerable money, permitted by be paid tolerating injuries should the suffered these by before Court, plaintiffs? Why this a to make determination? not be permitted clearly the prefer that defendants There little doubt namely, plaintiff allow the problem, solution to this to Court’s if in future to sue at some date the indefinite or his survivors in gets concurring I in cancer. observed plaintiff and when (1984), 422 a Dollinger, defendant Evers v. 95 N.J. escape responsibility negligently for permitted should be hiding increasing plaintiff’s by risk of cancer behind a uncertainty of the risk.” “statistical escape solution will allow defendants I think the Court’s most, Ayers many, if not cases. See v. Jackson liability J., (Handler, dissenting). Township, supra, 106 N.J. 619 Thus, if pay piper. have to may not ever Defendants date, then defendants develops cancer at some later plaintiff prove damages only plaintiff if the can for may be liable very difficult of be burden Proof causation will causation. may environmental factors many genetic and plaintiff for since plain- because development of cancer. Just or cause affect pleural caused his defendant’s conduct prove can tiff now cancer, lung he still thickening his risk of and increased lung cancer was caused prove that his not be able to exposure. his twenty years or after ten defendant’s asbestos any extremely separate from difficult to addition, In it will attrib- elements previously such recovered award disease, suffering, and emotional pain pre-existing utable Therefore, of majority solution distress, the like. and against defendant when bring allowing plaintiff to a lawsuit invariably be develops one that will cancer is 154 against negligent
stacked
claimants rather than
defendants.
Hence,
approach
it is doubtful that the Court’s
will
serve
purposes
See,
deterrent and
our
e.g.,
corrective
tort law.
People
Airlines,
Express
Inc. v.
Corp.,
Consolidated Rail
100
short,
(1985).
246
I can
why
N.J.
think
almost no reason
rejoice
proposal.
defendants will not
the Court’s
should,
balance, encourage
on
We
to sue in current
elements
a claim
actions
all
for relief consistent with the
principles
comprehensiveness, finality,
repose
that we
determining
concluding litigation.
invoke in
princi-
These
ples are reflected in
controversy
the evolution
the entire
See,
doctrine and statutes of
respectively, e.g.,
limitations.
Cogdell Hosp.
(1989);
v.
Center at
Orange,
N.J. 7
Crispin
A.G.,
(1984);
Volkswagenwerk,
v.
In my opinion, Mauro, Mr. like the from Jackson Township, cognizable palpable has form of a incurring compensated serious risk of cancer that should be now. CLIFFORD, POLLOCK, O’HERN,
For affirmance —Justices GARIBALDI and STEIN—5.
Dissenting HANDLER—1. —Justice