Consorti v. Owens-Corning Fiberglas Corp. (1995)

Our plain-English summary of Consorti v. Owens-Corning Fiberglas Corp. (U.S. Court of Appeals, Second Circuit, January 18, 1995).

Frances Consorti and her husband John sued Owens-Corning Fiberglas and others over John's mesothelioma. The opinion says he was exposed to asbestos between 1960 and 1970, married Frances in 1976, and was diagnosed in 1992. He died after the trial. A federal jury in New York awarded the couple more than $20 million, including $6 million for Frances's loss of consortium. The trial judge set aside the verdict for future non-economic consortium, and the parties stipulated that item to be $332,000. Owens-Corning appealed, arguing that the consortium claim fails because the exposure came before the marriage. The Second Circuit did not decide the appeal. It found New York decisions unclear on when a mesothelioma injury is treated as occurring for consortium purposes. It certified the question to the New York Court of Appeals, kept the case, and said it would decide the appeal after receiving an answer.

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: U.S. Court of Appeals, Second Circuit
• Decided: January 18, 1995
• Citation: 45 F.3d 48
• Docket: No. 857, Docket 94-7501
• Stage: Appeal from judgment after trial
• State: New York

Outcome. 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.

Issues decided: Loss of Consortium, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• John Consorti: mesothelioma; died

Who	Work	Where	When	Products
John Consorti			1960-1970

The defendants

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

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Consorti v. Armstrong World Industries, Inc. (August 28, 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• Fusaro v. Porter-Hayden Co. (New York Supreme Court, 1989). The trial court denied the motions by newly added defendants Asbestospray, APM, ACOA and Dana to dismiss the amended complaint as untimely, and denied the motions by H & A, Spraycraft, National Gypsum and Armstrong to strike the successor-liability allegations, so the plaintiff estate won and the amended complaint was deemed served.

Later decisions citing this one

2 later decisions in our library cite this one:

• Consorti v. Owens Corning (New York Court of Appeals, 1995). 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.
• 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.

Amounts in the opinion

• more than $20 million (total)
• $12 million (compensatory)
• $6 million (compensatory)
• $332,000 (other)

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.

45 F.3d 48 (1995)

Frances CONSORTI, individually and as Executrix of the Estate of John Consorti, Plaintiff-

Appellee,

v.

OWENS-CORNING FIBERGLAS CORP., Defendant-Appellant.

No. 857, Docket 94-7501.

Argued November 14, 1994.

Decided January 18, 1995.

United States Court of Appeals, Second Circuit.

[*49] William G. Ballaine, New York City (Mark S. Landman, Joanna L. Watman, and Siff Rosen, on the brief), for defendant-appellant.

Steven J. Phillips, New York City (Moshe Maimon and Robert I. Komitor, Alani Golanski, Levy Phillips & Konigsberg, on the brief), for plaintiff-appellee.

Before: NEWMAN, Chief Judge, ALTIMARI and LEVAL, Circuit Judges.

JON O. NEWMAN, Chief Judge:

On this appeal from a judgment of the District Court for the Southern District of New York (Robert W. Sweet, Judge), awarding substantial damages against an asbestos manufacturer on account of injury caused by mesothelioma, we have concluded that we should certify an important and recurring question of New York law to the New York Court of Appeals. The question 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. Accordingly, it is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate, in the form set out below, together with a complete set of briefs, appendices, and record filed by the parties with this Court. This panel retains jurisdiction so that, after we receive a response from the New York Court of Appeals, we may dispose of the appeal. The parties are hereby ordered to bear equally such fees and costs, if any, as may be requested by the New York Court of Appeals.

Certificate

Certificate to the New York Court of Appeals (pursuant to N.Y.Rules of Court § 500.17(b) (N.Y.Ct.App.) (McKinney rev. ed. 1986)).

1. The certified issue in this case concerns New York's substantive law of loss of consortium. Frances Consorti and her husband, John Consorti, sued defendant Owens-Corning Fiberglas Corp. ("OCF") and others for asbestos-related injuries sustained by John Consorti, and consequent loss of consortium suffered by Frances. The suit is part of a consolidated proceeding known as In re: Joint Eastern and Southern District Asbestos Litigation. Four cases were tried together in the District Court for the Southern District of New York (Robert W. Sweet, Judge) before a jury. Pertinent to this Certificate, the jury returned a verdict awarding the Consortis more than $20 million, including $12 million for Mr. Consorti's past and future pain and suffering and $6 million for Mrs. Consorti's past and future loss of consortium. The District Court set aside the jury's verdict on the issue of future loss of non-economic consortium, and the parties subsequently stipulated, in lieu of a new trial on this issue, that the value of the loss of future non-economic consortium was $332,000. Judgment was entered pursuant to Fed.R.Civ.P. 54(b). See Joint Appendix 5662-63. Mr. Consorti died after the trial.

The circumstances relevant to the consortium claim are as follows. The Consortis were married in 1976. John Consorti was exposed to asbestos between 1960 and 1970, and this exposure was a substantial factor contributing to the mesothelioma he later contracted. The Consortis were married in 1976. The plaintiffs presented evidence to show that, in contrast to asbestosis injury, which occurs immediately upon the ingestion of asbestos fibers into the lungs, mesothelioma does not

develop until 25 to 30 years after exposure. Mr. Consorti's mesothelioma was diagnosed in 1992. OCF's evidence did not dispute the plaintiffs' account of the etiology of mesothelioma, except to point out that some pre-malignant changes could be observed a couple of years before the disease became manifest. OCF conceded that Mr. Consorti did not have mesothelioma at the time of the marriage.

[*50] OCF contends that the consortium claim is barred because Mr. Consorti's exposure to asbestos occurred prior to the marriage. It relies on Anderson v. Eli Lilly & Co., 79 N.Y.2d 797, 580 N.Y.S.2d 168, 588 N.E.2d 66 (1991). That decision stated that a claim for loss of consortium is not available "if the alleged tortious conduct and resultant injuries occur prior to the marriage." Id. at 798, 580 N.Y.S.2d 168, 588 N.E.2d 66. It is not clear, however, when New York would consider Mr. Consorti's injury to have occurred for purposes of his wife's consortium claim.

The uncertainty arises from various statements, not all entirely reconcilable, in prior state court decisions. In Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 217, 237 N.Y.S.2d 714, 717, 188 N.E.2d 142, 144 (1963), the Court of Appeals said that "the action accrues only when there is some actual deterioration of a plaintiff's bodily structure." That language seems to support Mrs. Consorti's consortium claim, since her evidence showed that mesothelioma, unlike asbestosis, does not occur until long after the ingestion of the asbestos fibers — which, in Mrs. Consorti's case, was long after the date of her marriage. On the other hand, Schwartz held that the injury occurred when the harmful substance was introduced into the plaintiff's body, and seems to be announcing a rule that "the cause of action accrues upon the introduction of the harmful substance into the body." Id. at 217, 237 N.Y.S.2d at 718, 188 N.E.2d at 144 (emphasis added). Schwartz did not discuss the etiology of the plaintiff's condition, which was a cancer caused by the introduction of a substance placed in the nasal sinuses to make them perceptible in X-rays, and does not seem to have considered the time of deterioration to be a fact question. The opinion looks back to an earlier decision in Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936), and observes that "Judge Lehman's view in the Schmidt case is right as we must assume that the dust immediately acted upon Schmidt's lung tissue." Id., 12 N.Y.2d at 217, 237 N.Y.S.2d at 717, 188 N.E.2d at 144 (emphasis added). The injury in Schmidt was pneumoconiosis, in which, as with asbestosis, some deterioration presumably did occur at the time of first exposure. But Schmidt had not spoken of "deterioration" at all, and seems to have accepted a rule based solely on the date when the foreign substance is introduced into the plaintiff's body. See Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 433, 599 N.Y.S.2d 515, 517, 615 N.E.2d 999, 1001 (1993) (characterizing Schmidt as saying that "[d]isease was a consequence of the injury ... not the injury itself, and the injury was complete at the moment the dust was inhaled"). It is Schwartz that refers to "deterioration" and then appears to have made the concept irrelevant by declining to make a factual inquiry concerning when deterioration began.

Fusaro v. Porter-Hayden Co., 145 Misc.2d 911, 548 N.Y.S.2d 856 (Sup.Ct.1989), aff'd, 170 A.D.2d 239, 565 N.Y.S.2d 357 (1st Dep't 1991), is arguably helpful to Mrs. Consorti, since it says that a mesothelioma injury does not occur at the moment of exposure, but only at some much later point when the cancer develops; in Mrs. Consorti's case, this was after her marriage. The precise moment when the cancer develops is irrelevant in her case since, as noted, the defendant conceded that Mr. Consorti did not contract mesothelioma until after the marriage. The force of Fusaro as an aid to Mrs. Consorti's claim is placed in some doubt by the fact that the decision seems to have been influenced by the salutary purposes of New York's Toxic Tort Revival Statute, N.Y.Laws 1986 Ch. 682 § 4, and discovery-of-injury limitations rule, CPLR 214-c, and Anderson instructs us that these provisions do not help a consortium claim that is unavailable by reason of a pre-marital injury. Fusaro nonetheless may correctly reflect modern New York law for purposes of determining when a mesothelioma injury occurs. As Justice Freedman pointed out, the plaintiff's decedent in Fusaro could not have successfully sued for the mesothelioma injury immediately after exposure to asbestos because "the likelihood that any asbestosis victim ... would contract mesothelioma is substantially below 50%." Fusaro, 548 N.Y.S.2d at 859.

In the pending case, Judge Sweet concluded that the consortium claim was valid because [*51] Mr. Consorti did not have mesothelioma at the time of the marriage. In re New York Asbestos Litigation, 847 F.Supp. 1086, 1104 (S.D.N.Y.1994). If the consortium claim turns instead on whether the disease, though first occurring after the marriage, results from pre-marital exposure to asbestos, it should have been rejected. Another possibility, in some cases of this sort, is that the consortium claim is valid because the mesothelioma disease developed after the marriage, but the value of the claim is limited to the incremental loss of consortium attributable to the mesothelioma disease occurring in a spouse who, prior to the marriage, was exposed to asbestos and suffering from asbestosis. In Mrs. Consorti's case, however, the record contains no evidence that Mr. Consorti's asbestosis caused adverse consequences, either to him or to his wife.

2. The question therefore presented is whether, and to what extent, a consortium claim based on mesothelioma, occurring after a marriage but resulting from exposure to asbestos occurring before the marriage, is a valid claim under New York law. 3. The question should be decided by the New York Court of Appeals because the state court decisions do not yield a clear answer and the question can be expected to recur in a significant number of cases. In certifying the question as framed, we do not intend to restrict the consideration of the New York Court of Appeals and would welcome any guidance the Court deems it appropriate to provide us with respect to the viability of Mrs. Consorti's claim for loss of consortium.

Sources

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