Consorti v. Owens Corning (1995)

Our plain-English summary of Consorti v. Owens Corning (New York Court of Appeals, October 24, 1995).

John Consorti was exposed to and inhaled asbestos at work between 1960 and 1970. He married Frances in 1976 and was diagnosed with pleural mesothelioma in 1992. The Consortis sued Owens-Corning Fiberglas, the asbestos manufacturer, in federal court in New York, and the trial was consolidated with other asbestos cases. The evidence was that mesothelioma develops 25-30 years after exposure, and the defendant conceded he did not have the disease when he married. The Second Circuit asked the New York Court of Appeals whether a spouse can claim loss of consortium when the exposure happened before the marriage but the illness began after it. The Court of Appeals said no. It followed its long-standing rule, from cases such as Schmidt and Steinhardt, that injury from a toxic substance occurs when the substance enters the body, not when disease appears. Because Mr. Consorti's injury occurred in the 1960s, before the marriage, Mrs. Consorti had no loss of consortium claim.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Court of Appeals
• Decided: October 24, 1995
• Citation: 657 N.E.2d 1301
• Stage: Appeal from judgment after trial
• State: New York

Outcome. The New York Court of Appeals answered the Second Circuit's certified question in the negative, so Frances Consorti had no loss of consortium claim against Owens-Corning, which prevailed on that question.

What the court held. In toxic substance exposure cases, the tortious injury is deemed to occur as a matter of law when the toxic substance is introduced into the body, so a spouse has no loss of consortium claim if the exposure preceded the marriage, even if disease appeared later.

Issues decided: Loss of Consortium, Statute of Limitations.

Why this case is relevant

In this decision, the New York Court of Appeals answered a question sent to it by the federal Second Circuit. It held that a spouse has no loss of consortium claim when the injured person was exposed to a toxic substance before the marriage, even if the disease appeared only afterward. The court did not create a new rule. It applied and reaffirmed the long-standing Schmidt rule that, as a matter of law, injury occurs when the toxic substance enters the body, and it rejected a fact-based "date of medical injury" test. It called that rule a settled, certain principle of New York tort law.

Later decisions in our library use it in several ways. The Second Circuit vacated Mrs. Consorti's consortium award after the ruling. Maryland appellate courts, facing the latent-injury consortium question for the first time, cited it as an example of courts that deny the claim when exposure came before the marriage. New York trial courts cited it for the rule that injury occurs at exposure, including on a choice-of-law question, and in reviewing the history of the Schmidt rule. In one New York trial court case, plaintiffs relied on it to argue that each separate exposure was a separate injury.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• John Consorti: pleural mesothelioma; died

The defendants

• Owens-Corning Fiberglas Corp. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Matter of Steinhardt v. JohnsManville Corp. (New York Court of Appeals, 1981). The Court of Appeals affirmed the Appellate Division orders, so the asbestos manufacturers and suppliers won and the plaintiffs' claims stayed barred by the statute of limitations.
• Consorti v. Owens-Corning Fiberglas Corp. (U.S. Court of Appeals, Second Circuit, 1995). The Second Circuit did not decide the appeal; it certified to the New York Court of Appeals the question whether a spouse's loss of consortium claim is valid when mesothelioma arose after the marriage from asbestos exposure before it, and kept jurisdiction pending the answer.
• Matter of Steinhardt v. Johns-Manville Corp. (New York Supreme Court, Appellate Division, 4th Dept., 1980). The Appellate Division modified the order and dismissed the complaint, holding the negligence and strict products liability claims time barred, so the defendants (Johns-Manville and others) prevailed over the executrix.
• Tabolt v. Flintkote Co. (In re New York Asbestos Litigation) (U.S. District Court, Southern District of New York, 1994). The court granted in part and denied in part the defendants' post-trial motions after the jury awarded over $47 million to the Tabolt, Consorti, Luchnick and Pulizzi plaintiffs: it ordered a new trial on fault allocation in Tabolt and on Mrs. Consorti's future non-economic consortium damages, cut several consortium awards, and on reargument reduced Pulizzi's funeral-expense award to $2,925, but otherwise left the verdicts in place.

Later decisions citing this one

7 later decisions in our library cite this one:

• Owens-Illinois, Inc. v. Cook (Maryland Court of Appeals, 2005). The Court of Appeals of Maryland affirmed the judgment for John and Shirley Gianotti against Owens-Illinois, rejecting its challenges to the release, the noneconomic damages cap, the loss of consortium claim and the verdict reduction.
• Consorti v. Armstrong World Industries, Inc. (U.S. Court of Appeals, Second Circuit, 1995). The Second Circuit vacated the loss-of-consortium award to Frances Consorti, ordered a new trial on John Consorti's pain and suffering unless he accepts remittitur to $3.5 million, and otherwise affirmed the judgment against Owens-Corning Fiberglas, which had appealed.
• Owens-Illinois, Inc. v. Cook (Maryland Court of Special Appeals, 2005). The Court of Appeals of Maryland affirmed the judgment for the Gianottis against Owens-Illinois, holding that the damages cap did not apply, the loss of consortium claim could proceed, the release reserved the mesothelioma claim, and the verdict was properly reduced for the Babcock & Wilcox settlement.
• Owens-Illinois v. Gianotti (Maryland Court of Special Appeals, 2002). The Court of Special Appeals affirmed the judgments for John Gianotti and his wife against Owens-Illinois, rejecting its challenges, and also rejected the Gianottis' cross-appeal over the reduction of their judgments for the Babcock & Wilcox default and settlement.
• Voelker v. John Crane (Matter of Eighth Jud. Dist. Asbestos Litig.) (New York Supreme Court, Erie, 2015). The court granted plaintiff Janet Voelker's motion, vacating the $250,000 pain and suffering award and ordering a new trial on that item unless defendants stipulate to $600,000, and denied John Crane's cross-motion for judgment notwithstanding the verdict.
• Konstantin v. 630 Third Ave. Assocs. (New York Supreme Court, 2011). The court denied Tishman Liquidating Corporation's motion for summary judgment, leaving David Konstantin's claims against it to proceed.
• Tedrick v. Colgate-Palmolive Co. (Matter of Nyc Asbestos Litig.) (New York Supreme Court, 2011). The court granted Colgate-Palmolive's in limine motion to apply Oregon's $500,000 cap on noneconomic damages, ruling against the estate plaintiffs who wanted New York law with no cap.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

86 N.Y.2d 449 (1995)

657 N.E.2d 1301

634 N.Y.S.2d 18

Frances Consorti, Individually and as Executrix of John Consorti, Deceased, Plaintiff,

v.

Owens-Corning Fiberglas Corp., Defendant.

Argued September 13, 1995.

Decided October 24, 1995.

Court of Appeals of the State of New York.

Siff Rosen, P. C., New York City (William G. Ballaine, Lisa S. Rabinowitz and Phyllis M. Wrann of counsel), for defendant. Levy Phillips & Konigsberg, L. L. P., New York City (Steven J. Phillips, Alani Golanski, Moshe Maimon and Stephenie Lannigan of counsel), for plaintiff.

Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH and CIPARICK concur; Judge SIMONS taking no part. *450LEVINE, J.

450

Under settled New York law, because consortium represents each marital partner's interest in the continuance of the marital relationship as it existed at the inception of the marriage, a loss of consortium cause of action by the spouse of an injured person "does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage" (Anderson v Lilly & Co., 79 N.Y.2d 797, 798). The United States Court of Appeals for the Second Circuit has certified a question to us regarding the application of that principle to a case where a toxic substance was introduced into the injured person's body before the marriage, but did not bring about the onset of a particular disease until many years after the marital relationship began. As related in the Second Circuit's decision (Consorti v Owens-Corning Fiberglas Corp., 45 F.3d 48, 49), [*451] plaintiff's decedent, John Consorti, was continuously exposed to asbestos which he inhaled during the course of his employment between 1960 and 1970. He and plaintiff Frances Consorti married in 1976. Mr. Consorti was diagnosed as having plural mesothelioma, an incurable cancer of the lining of the lungs, in 1992. The Consortis commenced suit in the Federal District Court, Southern District of New York, against defendant, the manufacturer of the asbestos. They introduced at the trial, which had been consolidated with several other asbestos exposure cases, essentially uncontested evidence that mesothelioma is caused by the inhalation of asbestos, but that the disease does not develop until 25-30 years after exposure. Defendant conceded that Mr. Consorti did not have mesothelioma when he married. The question certified to us is "whether a cause of action lies for loss of consortium where, prior to the marriage, the plaintiff's spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage" (id., at 49). We answer the certified question in the negative.

Plaintiff's contrary argument is that the injury to her spouse giving rise to her loss of consortium claim was his mesothelioma and that the time when that injury occurred was a factual question, resolved in her favor as happening after the marriage and, therefore, beyond the power of this Court to review. We disagree.

The issue of date of injury in toxic substance exposure cases in the New York courts has most often been presented in the context of the application of the Statute of Limitations. Much the same considerations apply in determining the date of injury for purposes of a loss of consortium claim, and neither party here disputes that the holdings of those cases are the controlling precedents for the disposition of the instant case. Concededly, as noted by the Second Circuit, there is language in our earlier toxic substance exposure decisions which may be read as basing the operative date of injury on "`when there is some actual deterioration of a plaintiff's bodily structure'" (id., at 50, quoting Schwartz v Heyden Newport Chem. Corp., 12 N.Y.2d 212, 217, remittitur amended 12 N.Y.2d 1073, cert denied 374 US 808). Nonetheless, the true holdings of these early cases (and the results reached) point to the rejection of a fact-based date of medical injury test. That rejection was made for practical and policy reasons articulated in the developing case law, that is, the need to provide [*452] manufacturers, employers and other economic actors who are potential defendants with a degree of certainty or predictability in assessing the risk of liability and to avoid stale claims which often turn on questions of credibility or disputed medical judgments.

Therefore, a bright line, readily verifiable rule was adopted in which, as a matter of law, the tortious injury is deemed to have occurred upon the introduction of the toxic substance into the body. Thus, in Schmidt v Merchants Desp. Transp. Co. (270 N.Y. 287, rearg denied 271 N.Y. 531), a case where the claim arose out of plaintiff's inhalation of silicone dust, subsequently resulting in his contracting pneumoconiosis, this Court rejected plaintiff's claim that the injury giving rise to his cause of action occurred "not at the time he inhaled the dust * * * but at the time when the dust, so inhaled, resulted in a disease of the lungs and that date, it is said, can be determined only by medical testimony" (id., at 300 [emphasis supplied]). Instead, the Court in Schmidt held that

"[t]he injury to the plaintiff was complete when the alleged negligence of the defendant caused the plaintiff to inhale the deleterious dust. For that injury, including all resulting damages the defendant was then liable. The disease of the lungs was a consequence of that injury. Its result might be delayed or, perhaps, even by good fortune averted; nevertheless, the disease resulted naturally, if not inevitably, from a condition created in the plaintiff's body through the defendant's alleged wrong" (id., at 301 [emphasis supplied]).

In Schwartz v Heyden Newport Chem. Corp. (12 N.Y.2d 212, supra), this Court, albeit not without some reluctance (see, id., at 217-218), adhered to Schmidt in holding, as a matter of law, that the injury to the plaintiff occurred in 1944, when a chemical was injected into his sinuses to make them perceptible in X rays, rather than 13 years later when a consequential cancer of the eye was detected. In Thornton v Roosevelt Hosp. (47 N.Y.2d 780), a differently constituted Court was asked to revisit and overrule the Schmidt doctrine in a case also involving the injection of a dye into the sinuses for X-ray purposes which subsequently caused cancer. The Court was urged to adopt, as one alternative test for the time of occurrence of tortious injury, "the date when, regardless of whether [the plaintiff] then became aware of it, the injury process first started to work on her body" (47 NY2d, at 783, supra [Fuchsberg, J., dissenting] [emphasis supplied]). Adoption of that [*453] criterion would have required reversal for a resolution of the open question of fact as to when the injury process actually started (id. [Fuchsberg, J., dissenting]). Nevertheless, the Court held that "when chemical compounds are injected into a person's body, the injury occurs upon the drugs introduction" (id., at 781).

Even more to the point for purposes of the instant case, in Matter of Steinhardt v Johns-Manville Corp. (54 N.Y.2d 1008, remittitur amended 55 N.Y.2d 802, appeal dismissed and cert denied 456 US 967), this Court affirmed summary judgment dismissing as time-barred the cause of action for a plaintiff's mesothelioma, caused by earlier inhalation of asbestos, the same etiology on which Mrs. Consorti's loss of consortium cause of action is based. In doing so, the Court found irrelevant plaintiff's medical proof which is indistinguishable from that relied upon here by the District Court to sustain Mrs. Consorti's loss of consortium claim: "that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; * * * that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years" (id., at 1013 [Fuchsberg, J., dissenting]). Thus, according to the dissent in Steinhardt summary judgment was precluded because a question of fact was presented as to the date of injury, that is, "when the damaging disease came into existence" (id.). Here, the District Court resolved that same issue of fact in plaintiff's favor, determining on the basis of the medical proof that "Consorti was not injured (i.e., he did not have mesothelioma) prior to his marriage" (In re New York Asbestos Litig., 847 F Supp 1086, 1104). Thus, the District Court's decision here is in irreconcilable conflict with the result in Matter of Steinhardt. Nor do our more recent cases offer support for plaintiff's position. Once again, in Fleishman v Lilly & Co. (62 N.Y.2d 888, remittitur amended 63 N.Y.2d 1017, 1018, cert denied 469 US 1192), a majority of this Court refused to depart from the Schmidt doctrine equating injury with exposure to the toxic substance, that is, its introduction into the body, despite the urging of the dissent that "at the very least, a true date of medical-injury should be adopted for the accrual of the causes of action" (62 NY2d, at 892, supra [Cooke, Ch. J., dissenting]). Most recently, in Snyder v Town Insulation (81 N.Y.2d 429), we again expressed our adherence to the rule that the tortious [*454] injury is deemed to have taken place upon introduction of the toxic substance into the body. In Snyder, we quoted from our decision and that of the Appellate Division in Matter of Steinhardt v Johns-Manville Corp. (54 N.Y.2d 1008, supra): "[in Steinhardt], we `reaffirm[ed] the principle announced in Schmidt and followed in Schwartz' * * *. That principle had been stated correctly in the decision of the Appellate Division, the order which we affirmed in Steinhardt: `"The injury occurs when there is a wrongful invasion of personal or property rights and then the cause of action accrues"' (78 AD2d 577, quoting Schmidt, and citing Thornton and Schwartz)" (Snyder v Town Insulation, 81 NY2d, at 434-435, supra).

Thus, through succeeding generations of Judges composing this Court, over some 60 years, the Schmidt rule fixing the occurrence of tortious injury as the date when the toxic substance invades or is introduced into the body, has been reconsidered and reaffirmed, despite importunings that adoption of a medical date-of-injury standard would achieve more

just results. Nothing has been presented here to warrant departure from Schmidt and the resultant destabilizing of what is now a settled, certain principle of New York tort law. It follows that, as a matter of law, Mr. Consorti's tortious injury occurred when he was exposed to and inhaled asbestos during the 1960s, before his marriage, and that Mrs. Consorti has no viable loss of consortium claim.

Accordingly, the certified question should be answered in the negative.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites