In re Moorenovich (1986)

Our plain-English summary of In re Moorenovich (U.S. District Court, District of Maine, March 17, 1986).

Several people who say they were exposed to asbestos, along with the estate of one of them, brought consolidated cases in the federal district court in Maine against many asbestos product companies. Before trial, the defendants asked the court to bar the plaintiffs from mentioning fear or increased risk of cancer in their opening statements. The opinion does not describe any plaintiff's disease or work history. The plaintiffs said they were not trying to prove they would get cancer, and were not seeking damages for increased risk alone. They sought damages for the present anxiety of fearing they would develop cancer. Because Maine courts had not decided the question, the court predicted how Maine's highest court would rule. It pointed to Maine's recognition of damages for anxiety about future consequences of an injury and to its broader acceptance of emotional distress claims. It held that fear of cancer is a recoverable element of damages in Maine. The anxiety must be reasonable, must be caused by asbestos exposure, and must arise from exposure the defendants are legally responsible for. The motion was denied, and the court warned plaintiffs against overshadowing the case with cancer.

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. District Court, District of Maine
• Decided: March 17, 1986
• Citation: 634 F.Supp. 634
• Docket: Nos. 79-112-P, 80-0303-P, 80-0318-P, 80-0447-P, 81-0149-P, 81-0242-P, 81-0269-P, 81-0270-P and 83-0021-P
• Stage: Discovery or evidence ruling
• State: Maine

Outcome. The district court denied the defendants' motion in limine and ruled that the asbestos plaintiffs could mention fear of cancer in opening statements and offer evidence of it at trial.

What the court held. Predicting Maine law, the court held that fear of cancer is a recoverable element of damages for present anxiety in asbestos exposure cases. The anxiety must be reasonable and proximately caused by exposure for which the defendants are legally responsible.

Issues decided: Compensatory Damages, Fear of Cancer and Medical Monitoring, Trial Procedure and Discovery.

The defendants

• Amchem Products, Inc. (manufacturer)
• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• Bendix Corp. (manufacturer)
• Celotex Corp. (manufacturer) · its asbestos trust
• Combustion Engineering (manufacturer) · its asbestos trust
• Fibreboard Corp. (manufacturer) · its asbestos trust
• Flintkote Co. (manufacturer) · its asbestos trust
• G.A.F. Corp. (manufacturer)
• Garlock, Inc. (manufacturer) · its asbestos trust
• Eagle-Picher Industries (manufacturer) · its asbestos trust
• Johns-Manville (manufacturer)
• Keene Corp. (manufacturer)
• Owens-Corning Fiberglas Corp. (manufacturer) · its asbestos trust
• Raymark Industries, Inc. (manufacturer)
• United States Gypsum (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Pierce v. Johns-Manville Sales Corp. (Maryland Court of Appeals, 1983). The Court of Appeals of Maryland reversed the summary judgment for Johns-Manville and the other defendants and remanded, holding the estate's survival and wrongful death actions for lung cancer were not time-barred.
• Jackson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1986). The en banc Fifth Circuit affirmed the district court's judgment for plaintiff Jackson against Johns-Manville and Raybestos-Manhattan, including compensatory and punitive damages.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Eagle-Picher Industries, Inc. v. Cox (Florida District Court of Appeal, 3rd District, 1985). The appeals court affirmed the money judgment for plaintiff Milton Cox against Eagle-Picher Industries, rejecting Eagle-Picher's challenge to the admission of cancer-risk evidence and its other claimed errors.

Later decisions citing this one

8 later decisions in our library cite this one:

• Metro-North Commuter R. Co. v. Buckley (U.S. Supreme Court, 1997). The Supreme Court reversed the Second Circuit, holding that Metro-North, the railroad, was not liable for Buckley's emotional distress claim or for his claim to lump-sum medical monitoring costs, and remanded for further proceedings.
• Pustejovsky v. Rapid-American Corp. (Texas Supreme Court, 2000). The Texas Supreme Court reversed the court of appeals' affirmance of summary judgment for Rapid-American on limitations grounds and remanded to the trial court, so Pustejovsky's mesothelioma suit may proceed.
• Temple-Inland Forest Products Corp. v. Carter (Texas Supreme Court, 1999). The Texas Supreme Court reversed the court of appeals' judgment to the extent it reinstated the plaintiffs' actual damages claims, and rendered judgment that Carter and Wilson take nothing against Temple-Inland, which won.
• Beeman v. Manville Corp. Asbestos Fund (Iowa Supreme Court, 1993). The Iowa Supreme Court affirmed the judgment for Joseph Beeman after the jury verdict, upholding the evidence rulings, Keene's liability, and the trial court's setting aside of the punitive damages and the lost-life-opportunity award, so Manville Fund and Keene lost and Beeman's cross-appeal also failed.
• Wilber v. Owens-Corning Fiberglass Corp. (Iowa Supreme Court, 1991). The Iowa Supreme Court reversed the summary judgment for the defendants (Owens-Corning and others) and remanded, holding the widow's mesothelioma suit was not time barred by the earlier asbestosis diagnosis.
• Potts v. Celotex Corp. (Tennessee Supreme Court, 1990). Answering questions certified by the Sixth Circuit, the Tennessee Supreme Court held that the one-year limitations period did not bar Elizabeth Potts's mesothelioma claim against Celotex and the other asbestos product defendants, so the plaintiff prevailed on the limitations question.
• Matter of Celotex Corp. (U.S. Bankruptcy Court, Middle District of Florida, 1994). The bankruptcy court granted the debtors Celotex and Carey Canada partial summary judgment, holding the policy term "asbestosis" and the phrase "asbestosis and related diseases arising out of asbestos products" unambiguous, and denied the insurer defendants' cross-motion.
• Lavelle v. Owens-Corning Fiberglas Corp. (Ohio Court of Common Pleas, 1987). The trial court granted the defendants' motion in limine to exclude evidence of increased risk of cancer and denied it as to evidence of the asbestosis-afflicted plaintiff's increased fear of cancer, so each side won in part.

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.

634 F.Supp. 634 (1986)

In re William MOORENOVICH, Estate of Gordon Harvey, Joseph Melanson, Paul Kenison, Richard

Smith, Caleb Fowler, Ronald Fernald, Mabel Ogden, Alvin Gould.

Nos. 79-112-P, 80-0303-P, 80-0318-P, 80-0447-P, 81-0149-P, 81-0242-P, 81-0269-P, 81-0270-P and 83-0021-P. March 17, 1986.

United States District Court, D. Maine.

[*635] G. William Higbee, Brunswick, Me., Donald G. Lowry, Peter B. Dublin, Portland, Me., William A. Mulvey, James G. Noucas, Robert Gallo, Lori A. Howel, Atty., Portsmouth, N.H., Dan W. Thornhill, Kittery, Me., Michael P. Thornton, Neil Leifer, Boston, Mass., Thomas Tureen, Harold Lichten, Lawrence C. Winger, Portland, Me., David J. Ansel, Boston, Mass., Melvin I. Friedman, Kreindler & Kreindler, New York City, Thomas W. Henderson, Pittsburgh, Pa., Ira A. Levy, Wayne Schneider, Newark, N.J., Thomas J. Pearson, Houston, Tex., for asbestos plaintiffs.

Peter L. Murray, Thomas C. Newman, Portland, Me., for Amchem Products, Inc. (Wellington).

Harrison L. Richardson, Thomas Getchell, Portland, Me., for Armstrong World Industries, Inc. (Wellington). Stephen C. Whiting, Portland, Me., for Bendix Corp.

M. Roberts Hunt, Glenn Robinson, Portland, Me., for Celotex Corp. (Wellington).

C. Alan Beagle, Portland, Me., for Combustion Engineering.

Frederick C. Moore, Portland, Me., for Cummings Insulation and Claremont Co., Inc.

U. Charles Remmel, Portland, Me., for Fibreboard Corp. (Wellington).

Philip K. Hargesheimer, Roger J. O'Donnell, Lewiston, Me., for Flintkote Co. (Wellington).

Jotham D. Pierce, Jr., Daniel Emery, Portland, Me., for G.A.F. Corp.

George F. Burns, Portland, Me., for Garlock, Inc.

Harold J. Friedman, Martha C. Gaythwaite, Atty., Portland, Me., for G.M. Delco Moraine.

Thomas Cox, Martin Robles, Portland, Me., for John-Crane Houdaille.

John R. Linnell, Auburn, Me., for Eagle-Picher Industries (Wellington).

Thomas Schulten, John Rich, Portland, Me., for Eastern Refractories.

David Fisher, Portland, Me., for Nat. Gypsum (Wellington).

John J. Flaherty, Christopher D. Nyhan, Edward Benjamin, Portland, Me., for Nicolet, Inc.

Nicholas S. Nadzo, John Montgomery, Portland, Me., for Owens-Corning Fiberglas Corp. (Wellington).

Phillip D. Buckley, Bangor, Me., for Johns-Manville.

Thomas F. Monaghan, Kevin G. Libby, Portland, Me., for Keene Corp. (Wellington).

Roger J. Katz, Lipman & Parks, Augusta, Me., for United States Gypsum (Wellington).

[*636] Peter J. Rubin, Linda A. Monica, Atty., Jeffrey T. Shedd, Portland, Me., for Owens-Ill. (Wellington). John A. Mitchell, James G. Goggin, Portland, Me., for Pittsburgh Corning Corp. (Wellington).

Charles H. Abbott, Steven F. Wright, Lewiston, Me., for H.K. Porter Co. Southern Textile Co. (Wellington).

Thomas R. McNaboe, Mark G. Furey, Portland, Me., for Raymark Industries, Inc.

Randall E. Smith, Saco, Me., for J.P. Stevens & Co.

MEMORANDUM AND ORDER

DAVID S. PORTER, Senior District Judge.[*]

These consolidated cases are before the Court on defendants' motion to exclude from plaintiffs' opening statements any reference to fear or increased risk of cancer. At the pretrial conference, held March 6, 1986, the Court informed counsel that our ruling on this issue would depend on the Court's ultimate decision regarding the admissibility of such evidence. This order therefore exceeds the scope of the motion before us, but also clarifies issues we anticipate will arise at trial. Since Maine courts have not squarely decided the issue, we must predict how the Maine Supreme Judicial Court would decide the issue should it arise.

As an initial matter, it is necessary to define the exact question before the Court. Plaintiffs do not wish to prove that they will contract cancer in the future as a result of their exposure to asbestos. Nor do they wish to prove that the increased risk alone provides a sufficient predicate for the award of damages. They are completely foreclosed from this approach by the rule that only damages provable to a reasonable probability are available in a personal injury action. See Michaud v. Steckino, 390 A.2d 524 (Me.1978); see also Pierce v. Johns-Manville, 296 Md. 656, 464 A.2d 1020 (1983). Plaintiffs are seeking damages for a present injury. That is, the present anxiety or fear they experience that they will contract cancer in the future. This fear derives from the fact that asbestos is a known carcinogen, that they have had prolonged exposure to asbestos, and that their co-workers are dying at a higher than normal rate from asbestos-related cancer. See Plaintiffs' Memorandum in Support of the Admissibility of Evidence Bearing Upon the Risk of Cancer, at 7. Although not explicitly discussed as such, we have found that the cases deal with mental distress damages in two different ways. One group has analyzed the claim of anxiety damages as a separate cause of action for emotional distress. Various jurisdictions have divergent requirements for recovery under such a cause of action. Thus, for example, in Eagle-Picher Industries, Inc. v. Cox Sr., 481 So.2d 517 (Fla.Ct.Ap.1985), the court looked to the law of Florida to determine that emotional distress required impact and injury before damages would be available. Likewise, in Jackson v. Johns-Manville Sales Corp., etal., 781 F.2d 394 (5th Cir. 1986), the court determined:

Under Mississippi law, damage awards for mental distress may be rendered when either of two conditions is satisfied: when the plaintiff's mental suffering is accompanied by a physical injury, or when the plaintiff establishes the defendant's misconduct to have been wilful, gross, wanton.

The other group has taken the position that mental distress damages are a normal element of damages available in a personal injury action. This line of cases includes Ward Baking Co. v. Trizzino, 27 Ohio App. 475, 161 N.E. 557 (1928) (fear of ensuing consequences from swallowing a needle in a piece of cake), and Davis v. Tobin, 131 [*637] Me. 426, 163 A. 780 (1933) (Damages for injury may include shock of accident and all sufferings, mental and physical which it caused.). In the context of fear of cancer, courts having considered such a claim have almost uniformly allowed it. Gale & Goyer, Recovery for Cancerphobia and Increased Risk of Cancer, 15 Cum.L.Rev. 723, 730 (1985).

There is no question that courts have been very cautious in their award of damages asserted under an independent cause of action for emotional distress. Courts have feared a flood of litigation if plaintiffs are permitted to assert a separate cause of action for emotional distress in the absence of some accompanying physical manifestation of injury (with the exception that damages have been available absent physical manifestation when the anxiety was caused by "outrageous" conduct. See Restatement (Second) of Torts, § 46 (1965).) See, e.g., Ward v. West Jersey & S.R. Co., 65 N.J.L. 383, 47 A. 561 (1900).

In Maine, "[p]rior to 1970, a plaintiff could not recover damages for negligently inflicted mental suffering, except in connection with recovery of damages for physical injury caused by the same negligent act." Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 153 (1979). Without conducting an extensive review of the law, it is fairly safe to say that Maine's reluctance to award such damages has been shared by nearly every American jurisdiction. See W. Prosser, Law of Torts at 49 (4th ed. 1971).

Despite its earlier reluctance to recognize a separate cause of action for emotional distress in the absence of some physical manifestation of harm, Maine has recently greatly liberalized its approach to this aspect of the law. The recent trend has culminated in Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433 (Me.1982). In Culbert, the plaintiff sued for anxiety damages resulting from seeing her baby choke on a foreign substance found in its baby food. After carefully reviewing the pros and cons in recognizing a liberalized cause of action for emotional distress, the court concluded that justice would be served by permitting "a bystander [to] recover damages for serious mental distress foreseeably resulting from witnessing another person harmed by the tortfeasor's negligent act." Id. at 438 (emphasis added). Thus, the Maine Supreme Judicial Court has shifted its focus from a requirement of physical injury to defendants duty not to create the potential for such harm in analyzing emotional distress cases.

Given Maine's liberal recognition of an independent cause of action for emotional distress in an area of law that has been typified by judicial caution, and also its longstanding recognition of damages for anxiety of future consequences, see Davis, supra, we conclude that under Maine law, fear of cancer is a recoverable element of damages in the instant actions. Any such recovery would be for present damages, and we do not believe that a plaintiff's cause of action for cancer, should it ultimately develop, would be necessarily foreclosed by res judicata under our ruling.

It goes without saying that the following are prerequisites to any recovery of anxiety damages. First, that any anxiety must have been proximately caused by plaintiff's exposure to asbestos. Moreover, the anxiety must be reasonable. Finally, defendants must be legally responsible for the plaintiff's exposure to asbestos. See, Valori v. Johns-Manville, etal., No. 82-2686 (D.N.J. Dec. 11, 1985).

We hold therefore, that based on Maine law and the Federal Rules of Evidence plaintiff may discuss anxiety of cancer during opening statement, as well as offer evidence on this issue during trial.

We are mindful that such evidence has the potential to be highly prejudicial. However, our previous experience in similar asbestos cases convinces us that the jury is capable of sorting out the evidence, understanding the instructions on this issue and placing cancer evidence in the proper perspective.

[*638] We nevertheless admonish plaintiff that the Court will be wary of any efforts to "overshadow" the case by the "the dread specter of cancer." Lohrmann v. Johns-Manville, etal., 782 F.2d 1156, 1160 (4th Cir., 1986).

ORDER

For the foregoing reasons, it is accordingly ordered that defendants' motion in limine to exclude from opening statements any discussion of fear or increased risk of cancer is denied. With this order we also hold that such evidence is admissible in the case in chief.

SO ORDERED.

[*] Honorable David S. Porter, United States Senior District Judge, Southern District of Ohio, sitting by designation.

Sources

• The opinion on Google Scholar
• Maine asbestos laws
• Maine asbestos exposure sites