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April 11, 1989

BETTY J. EMIGH, individually and as Administratrix of the Estate of JAMES R. EMIGH, Plaintiff,

The opinion of the court was delivered by: COHILL, JR.


 Presently before us is plaintiff's Motion for a New Trial pursuant to Federal Rule of Civil Procedure 59(a). For the reasons stated below, we will deny plaintiff's motion.


 On January 15, 1983, James R. Emigh died from respiratory failure due to generalized metastasis from squamous cell carcinoma of the lung. From 1942 until 1982, Mr. Emigh had worked as an electrician, machinist, locomotive cleaner and laborer for the defendants Consolidated Rail Corporation and Penn Central Corporation ("Railroad Defendants") at the Conway, Pittsburgh and Pitcairn Shops. Two years after his death, on January 11, 1985, Mr. Emigh's wife, Betty J. Emigh, filed a complaint alleging that her husband's death resulted from forty years of occupational exposure to asbestos. She contended that under the Federal Employers' Liability Act, 1-10, as amended, 45 U.S.C. 51-60, the Railroad Defendants were negligent because they failed to adequately warn her husband of the dangers of asbestos exposure, failed to provide a safe working environment, and failed to implement procedures to minimize asbestos exposure. In addition, plaintiff sought to recover compensatory and punitive damages from other defendants, who were manufacturers and suppliers of asbestos, for injuries caused to her husband by exposure to their asbestos products. She claimed damages against these defendants under theories of strict liability, negligence, breach of warranty and misrepresentation.

 On February 23, 1989, after six days of trial, the jury rendered a verdict on special interrogatories in which it found that exposure to asbestos was not a substantial factor contributing to James R. Emigh's lung cancer and death. Accordingly, judgment was entered in favor of the defendants and against the plaintiff.

 Plaintiff now moves for a new trial on the grounds that prejudicial errors of law were made during the course of the trial. A motion for a new trial may be granted at the discretion of the court, inter alia, if the verdict is against the weight of the evidence, or if there are substantial errors of law in the admission or rejection of evidence. Tevelson v. Life and Health Ins. Co. of America, 643 F. Supp. 779, 782 (E.D. Pa. 1986); 11 C. Wright & A. Miller, Federal Practice and Procedure 2805. The court may set aside the jury's verdict only if manifest injustice will result if the verdict is allowed to stand. American Bearing Co. v. Litton Industries, Inc., 540 F. Supp. 1163, 1168 (E.D. Pa. 1982), aff'd, 729 F.2d 943 (3d Cir. 1984), cert. denied 469 U.S. 854, 83 L. Ed. 2d 112, 105 S. Ct. 178 (1984).

 In support of her motion for a new trial, plaintiff contends that the court erred in excluding the medical findings of Sang Yon Cho, M.D., and Seymour Piwoz, M.D., regarding the cause of Mr. Emigh's lung cancer and death. During the trial, plaintiff attempted to introduce this evidence through her live expert, William D. Fineman, M.D., arguing that he relied on these findings in forming his opinion pursuant to Rule 703 of the Federal Rules of Evidence ("Rule 703"). In her motion, plaintiff reiterates this argument, claiming that the exclusion of the evidence was prejudicial because if the jury had considered "plaintiff's pathological evidence through Dr. Fineman along with the clinical and epidemiological evidence. . . that they would, in fact, have decided that from a preponderance of the evidence that asbestos exposure was a substantial factor contributing to James R. Emigh's lung cancer and death." Plaintiff's Motion for a New Trial at 4.

 During the trial, all parties offered expert testimony regarding the cause of Mr. Emigh's lung cancer and death. Plaintiff initially called William D. Fineman, M.D., who was qualified as a pulmonologist. Dr. Fineman had never actually interviewed or treated Mr. Emigh. Rather, Dr. Fineman testified that he based his opinion as to the cause of Mr. Emigh's death on Mr. Emigh's work history, chest x-rays and medical records from treating physicians. After examining these sources, Dr. Fineman concluded that Mr. Emigh's lung cancer and death were substantially caused by his exposure to asbestos. In addition, at trial, plaintiff's counsel attempted to elicit testimony from Dr. Fineman regarding the findings of Dr. Cho, a pathologist, and Dr. Piwoz, a radiologist. Like Dr. Fineman, Dr. Cho and Dr. Piwoz had never interviewed or examined Mr. Emigh.

 Dr. Cho's findings were recorded in a three-paragraph letter addressed to the plaintiff's counsel, dated August 20, 1985. Plaintiff's Motion for a New Trial, Exhibit A. He wrote that after examining ten tissue slides of Mr. Emigh's lung made at the time of surgical lung operation, he found "several structures which are strongly suggestive of asbestos bodies," and that it was his "feeling that this patient's lung carcinoma is related to the presence of asbestos bodies."

 Similarly, Dr. Piwoz's findings were contained in a two-paragraph letter addressed to Health Scan, Ltd., and dated April 18, 1986. Plaintiff's Motion for a New Trial, Exhibit B. He reviewed Mr. Emigh's posterior, anterior and lateral x-rays taken on September 16, 1982, and reported a mass in the left upper lobe, diffuse bilateral interstitial disease and extensive pleural plaquing. Dr. Piwoz concluded, "the presence of pleural plaquing and squamous cell carcinoma are consistent with asbestos related disease. This proved to be the cause of the patient's death."

 Defendants objected to the admission of the medical reports on the ground that the out-of-court statements of these doctors constituted inadmissible hearsay and that the probative value of the reports was substantially outweighed by unfair prejudice to the defendants. Specifically, defendants argued that the findings of both doctors were contained in letters dated a few years after Mr. Emigh had died. Neither doctor had personally treated Mr. Emigh; rather these doctors were contacted by the plaintiff's lawyers after the commencement of the litigation. Moreover, neither of the doctors were present in court and available for cross examination as to their qualifications and findings. Finally, in accordance with pretrial requirements, Dr. Fineman had prepared two expert reports which disclosed the basis for his findings. However, neither report referred to the reports of Dr. Cho or Dr. Piwoz.

 Plaintiff countered by arguing that she was not attempting to have the letters independently admitted as evidence. Rather, she sought to have the reports admitted as evidence which her live expert witness, Dr. Fineman, relied upon in forming his opinion pursuant to Rule 703.

 The court sustained defendants' objections, holding that the reports failed to meet the minimum standards of reliability and were lacking in probative force. Since the opinions contained in the reports were speculative at best, rendering cross-examination a necessity, the court concluded that the likely harm to the defendants outweighed the probative value of the medical ...

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