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JOSEPH EDWARD MARTIN v. JOHNS-MANVILLE CORPORATION (12/02/83)

filed: December 2, 1983.

JOSEPH EDWARD MARTIN, APPELLANT AT NO. 1323 PGH. 1982,
v.
JOHNS-MANVILLE CORPORATION, PITTSBURGH CORNING CORPORATION, OWENS-CORNING FIBERGLAS CORP., EAGLE-PITCHER INDUSTRIES, INC., FORTY-EIGHT INSULATIONS, INC., THE CELOTEX CORPORATION, KEENE CORPORATION, UNARCO INDUSTRIES, INC., COMBUSTION ENGINEERING INC., AND RAYBESTOS MANHATTAN, INC. V. INDUSTRIAL FURNACE SUPPLIES, INC., V. OWENS-ILLINOIS, INC. APPEAL OF COMBUSTION ENGINEERING, INC., AT NO. 1322 PGH. 1982



NO. 1322 PITTSBURGH 1982, NO. 1323 PITTSBURGH 1982, Appeal from Judgment entered in the Court of Common Pleas of Allegheny County, Civil Nos. GD 78-19684, Issue No. 107950

COUNSEL

Richard K. Willman, Pittsburgh, for Combustion Engineering, appellant (at No. 1322) and appellee (at No. 1323).

William R. Caroselli, Pittsburgh, for Martin, appellant (at No. 1323) and appellee (at No. 1322).

Patrick R. Riley, Pittsburgh, for Owens-Corning, appellee.

Kathleen S. McAllister, Pittsburgh, for Celotex, appellee.

John W. Jordan, IV, Pittsburgh, for Raybestos, appellee.

Cercone, President Judge, and Spaeth, Hester, Cavanaugh, Wickersham, Wieand and Hoffman, JJ. Cavanaugh, J., files a concurring and dissenting opinion. Wieand, J., files a concurring and dissenting opinion, in which Hester, J., joins.

Author: Spaeth

[ 322 Pa. Super. Page 353]

This case arises on an appeal and cross-appeal. Appellant, Joseph Edward Martin,*fn1 seeks compensatory and punitive damages for asbestosis and related diseases. He received a verdict, but in his view it was inadequate and he asks us to reverse the trial court's denial of his motion for a new trial limited to the issue of damages. He argues that the trial court erred in: (1) excluding evidence that he might develop bronchogenic carcinoma as a result of his exposure to asbestos; (2) instructing the jury that it could reduce its award of damages to reflect the amount of harm attributable to his cigarette smoking; (3) refusing to submit the issue of punitive damages to the jury; and (4) refusing to admit certain medical exhibits into evidence. Cross-appellant, Combustion Engineering, Inc., also an appellee, argues that the trial court erred in refusing to grant its motion for judgment n.o.v. and in refusing to remove the verdict that had been directed in favor of Raybestos-Manhattan, Inc. As to appellant: We hold that the trial court did not err with respect to the medical exhibits but did err in excluding evidence that appellant might develop bronchogenic cancer and in refusing to submit the issue of punitive damages to the jury. (We need not reach the cigarette smoking issue.) We therefore reverse and remand for a new trial limited to the issue of damages. As to cross-appellant: We find no error and therefore as to it, we affirm.

-1-

Joseph Edward Martin was an insulation worker whose work brought him into repeated contact with asbestos fibers. In August 1978 he brought this trespass action, seeking compensatory and punitive damages for asbestosis and related diseases. The action was tried to a jury, which awarded compensatory damages of $67,000 against all of the defendants other than Raybestos-Manhattan, Inc.

Appellant argues, first, that the trial court erred in granting appellees' motion in limine to exclude evidence that his

[ 322 Pa. Super. Page 354]

    exposure to asbestos increased his risk of contracting bronchogenic carcinoma. We agree.

It is settled that a plaintiff in a personal injury action may introduce expert testimony that as a result of the past injury for which he seeks compensation, he may experience certain adverse physical effects in the future.*fn2 Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971); Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405 (1967); Boyle v. Pennsylvania R. Co., 403 Pa. 614, 170 A.2d 865 (1961). The reason for permitting expert testimony regarding the plaintiff's prognosis was well-stated in Schwegel:

There is nothing evidentially improper about this testimony. If we were to rule it out we would be holding that such possible future effects are not entitled to any consideration as a matter of substantive law. See II Wigmore, Evidence ยง 663(1), (3d Ed. 1940). That would be unfair since the action must be brought within the time limitations fixed by our law and all damages, past, present and future, must be determined in that one action.

Id. 209 Pa. Super. at 287, 228 A.2d at 409.

See also Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 296, 450 A.2d 681, 688 (1982) ("[N]ew limitation period does not start to run each time a new disease develops from the same tortious conduct of the defendant."); Shadle v. Pearce, 287 Pa. Super. 436, 430 A.2d 683 (1981) (same).

[ 322 Pa. Super. Page 355]

In opposition to appellees' motion to exclude any "reference to cancer," N.T. 32, appellant's counsel submitted the following offer of proof:

MR. CAROSELLI: In the report of Dr. Sachs, which has been offered and attached to our pretrial statement, there is an indication that this man is at risk of contracting cancer. Pennsylvania courts have adopted that the risk of cancer is, in fact, damage in personal injury cases and in this regard I believe that any testimony in that regard ought to be allowed.

THE COURT: Anybody else wish to speak to it?

THE COURT: Mr. Caroselli, are you going to have any evidence whatsoever that this plaintiff of yours has or ever had any cancer?

MR. CAROSELLI: I don't know, your Honor. He has some symptomatology that is consistent with perhaps having cancer.

Dr. Sachs indicated in his report he had hemoptysis --

THE COURT: What is that?

MR. CAROSELLI: Coughing of blood. I believe it will be Dr. Sachs' testimony that based on the exposure that he has had, based on the symptomatology that he has, that there may, in effect, be cancer which exists now, which is not detectable but he is most certainly at risk.

THE COURT: The motion to exclude any reference to cancer by any of the witnesses is granted.

MR. CAROSELLI: May I have a clarification on that. Do you mean that Dr. Sachs cannot talk about the risk of this man?

THE COURT: There will be no mention of cancer in any shape or form.

N.T. at 32-35.

In explaining this ruling, the trial court states that appellant's offer of proof was inadequate: "The Plaintiff did not offer to introduce any other evidence or testimony of the possibility of developing cancer as a result of asbestos

[ 322 Pa. Super. Page 356]

    exposure, such as a statistical or an epidemiological analysis of the risk." Slip op. at 5.

An offer of proof is adequate if it "state[s] the purpose [of the testimony sought to be introduced] in such a manner that the court may perceive its relevancy . . . ." Germantown Dairy Co. v. McCallum, 223 Pa. 554, 561, 72 A. 885 (1909), quoted in Cockcroft v. Metropolitan Life Insurance Co., 133 Pa. Super. 598, 602, 3 A.2d 184, 186 (1938). See also Societa Palmolese Di Protezione E. Beneficenza v. Maiale, 143 Pa. Super. 403, 17 A.2d 925 (1941); Barrilo v. Frank, 116 Pa. Super. 461, 177 A. 58 (1935). Here, appellant's offer was adequate to inform the trial court that the purpose of his expert's testimony would be to show that his exposure to asbestos increased his risk of contracting cancer, and that his hemoptysis indicated that he might already have cancer. Indeed, the court's opinion reveals that it understood this to be the purpose of the testimony. Thus the court states: "In opposition to the defendants' motion in limine, the plaintiff relied solely upon the Sachs report and Sachs' proposed testimony consistent therewith. The plaintiff indicated that Sachs' testimony regarding Martin's risk of developing cancer would be based upon Martin's history of asbestos exposure and the incidence of hemoptysis." Slip op. at 4-5. In addition, the proffered testimony was patently relevant to the question whether appellant was entitled to recover damages to compensate for the risk that he might suffer adverse effects in the future as a result of his past exposure to asbestos. The trial court therefore erred in ruling that appellant's offer of proof was inadequate.

Appellees argue, however, that the trial court's ruling was nonetheless proper under Rule 212 of the Allegheny County Rules of Civil Procedure, which provides:

A. Plaintiff, within thirty (30) days after notice of a pre-trial conciliation conference as provided in Paragraph II hereof:

[ 322 Pa. Super. Page 357]

(1) Shall serve upon all parties a written statement containing:

(d) The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings and conclusion of the expert.

E. Witnesses whose identities have not been revealed as provided in paragraph VI.A.(1)(b) and VI.C.(1)(a), or whose reports have not been furnished under VI.A.(a)(c) and (d) and VI.C.(1)(c) and (d), supra will not, under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case.

Appellees do not argue that appellant failed to notify them that Dr. Murray Sachs would testify as an expert witness on their behalf, or that appellant failed to provide them with a copy of Dr. Sachs's report. Rather, they argue that the statements in Dr. Sachs's report that appellant suffered from "chronic obstructive lung disease with asbestosis," and that he could not "exclude the possibility of bronchogenic carcinoma and [that] this diagnosis must be considered particularly in light of his recent hemoptysis," did not represent a sufficient statement of "findings and conclusions" to the effect that appellant might contract cancer as a result of his exposure to asbestos.

The purpose of Rule 212 was stated in Sindler v. Goldman, 309 Pa. Super. 7, 12, 454 A.2d 1054, 1056 ...


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