Altiere v. Fibreboard Corp.

OPINION PER CURIAM:

John Altiere, in a “reverse bifurcated” trial, was awarded damages in the amount of three hundred fifty thousand ($350,-000) dollars for pleural thickening, pulmonary asbestosis, with consequent exertional dyspnea (shortness of breath), and the risk of future asbestos related diseases, including cancer, against various manufacturers of asbestos products. Although the claim was thereafter settled by most manufacturer defendants, Fibreboard Corporation proceeded to trial on the issue of liability. The jury thereafter found that Fibreboard and twelve (12) other non-bankrupt defendants had contributed to Altiere’s asbestos related injuries. Post-trial motions were denied, and judgment was entered in favor of Altiere and against Fibreboard in the amount of $43,265.00. Fibreboard appealed.

The Altiere case was tried jointly with a claim which had been made by Elmer Ottavio, and this Court, in the Ottavio case,1 has already reviewed a contention by Fibreboard as to the alleged insufficiency of the evidence to support the jury’s finding that Fibreboard’s asbestos products were a substantial factor in causing asbestos related injury to Altiere and Ottavio. This Court has also reviewed and found to be without merit claims that the trial court erred by (1) allowing the trial to be completed before a jury of less than eight (8) jurors, and (2) refusing to allow liability to be apportioned among defendant manufacturers who were in bankruptcy and did not participate in the trial.

*299Altiere’s claim was for a disease which was no longer asymptomatic. On the contrary, he was already experiencing pulmonary asbestosis and consequent shortness of breath. Altiere, however, was a heavy smoker. Therefore, Fibreboard defended the Altiere claim on grounds that any damages for the fear and/or risk of future cancer could be and should be apportioned between his smoking habit and his job-related exposure to asbestos.2 The trial court refused to permit the jury to make such an apportionment. Fibreboard argues on appeal that this was error. It contends that with respect to the fear of future cancer and the risk of future cancer, the evidence was sufficient to allow the jury to make an apportionment between appellant’s smoking of cigarettes and his exposure to asbestos.

Preliminarily, it has been suggested that our recent adoption of the separate disease rule for asbestos actions in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), has changed the basis of recovery in asbestos cases. Claims for the “risk of future cancer” or “fear of cancer” would no longer form the basis of recovery in asbestos cases where cancer was not present. It has also been suggested, on the basis of Marinari, that any discussion of apportionment is unnecessary. It may well be.

However, these suggestions do not change the past. Here, Fibreboard defended against such charges by raising an appropriate apportionment defense, just as they were entitled to do at the time of trial, in February, 1990. On appeal, Fibreboard charges that (1) the statistical evidence given by Dr. Auerbach was sufficient to warrant an apportionment instruction, and, (2) the trial court’s error in refusing such apportionment instruction could have significantly affected the size of the verdict. Fibreboard is entitled to a review of these issues on the merits notwithstanding that asbestos litigation in this Commonwealth may follow a different course now that the two disease rule in Marinari has been adopted.

*300We now turn to the issue raised in this appeal. Section 433A of the Restatement (Second) of Torts provides:

§ 433A. Apportionment of Harm to Causes
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

In Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), the Supreme Court of Pennsylvania adopted § 433A of the Restatement and held that a trial court had erred when it permitted a jury to apportion damages without evidence to establish a reasonable basis on which to make an apportionment between asbestosis and emphysema. The Martin court reasoned:

The jury, although presented with a great deal of testimony concerning appellant’s history and physical condition, was provided no guidance in determining the relative contributions of asbestos exposure and cigarette smoking to appellant’s disability. In fact, two experts testified that such a determination was not possible. A situation analagous [sic] to the instant case arose in Offensend v. Atlantic Refining Co., supra [322 Pa. 399, 185 A. 745 (1936) ]. There, a jury award of damages for aggravation of an existing tubercular condition was modified (reduced), because the expert testimony did not address the duration of the aggravation. “If the doctors were not in a position to make an estimate of the extent of the aggravation in point of time, the jury should not have been allowed to hazard a guess beyond the period shown with reasonable certainty.” Id., 322 Pa. at 404, 185 A. 745. Here, as in Offensend, the jury cannot be expected to draw conclusions which medical experts, relying on the same evidence, could not draw. The causes of disability in this case do not lend themselves to separation by lay-persons on any reasonable basis. Thus, common sense and common experience possessed by a jury do not *301serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. “Rough approximation” is no substitute for justice.

Id. at 515 Pa. 384-385, 528 A.2d at 950 (footnotes omitted). See also: Taylor v. Celotex Corp., 393 Pa.Super. 566, 591, 574 A.2d 1084, 1097 (1990).

In the present case, when Altiere’s expert, Dr. Donald Auerbach, was asked about the increased risk of lung cancer following occupational exposure to asbestos, Dr. Auerbach responded by postulating a baseline risk in the population. Dr. Auerbach then proceeded from this hypothetical baseline to establish various multiples of this same hypothetical baseline as the risk factors, submitting that: (1) in a group of people exposed to neither cigarette smoke nor asbestos, the incidence of cancer each year would be eleven (11) persons in a population of 100,000; (2) in a group exposed to cigarette smoke and not asbestos the incidence of cancer each year would be 120 persons in a population of 100,000; (3) in a group exposed to asbestos and not cigarette smoke the incidence of cancer each year would be 55 persons in a group of 100,000; and finally, (4) in a group exposed to both asbestos and cigarette smoke, as was Altiere, the incidence of cancer each year would be 600 persons in a population of 100,000. N.T., 2/13/90 at 20-22.

We are not persuaded that this testimony sufficed to allow the jury to consider the apportionment of damages for a fear and/or likelihood of a future asbestos related cancer, since we are reluctant to conclude, without more, that this constitutes reliable statistical evidence which would support a Section 433A “apportionment of harm” charge to the jury.

Furthermore, we must observe, as did the trial court, that Fibreboard made no attempt to offer its own apportionment testimony, but instead relied upon Dr. Auerbach, the appellees’ witness to do the job for them. The trial court noted that “[s]ince Dr. Auerbach did not apportion causation” himself, his evidence was insufficient to support an apportionment charge. Trial Court Opinion, dated October 31, 1991, at 8. *302The jury cannot be permitted to draw conclusions which medical experts could not draw if they relied upon the same evidence.

Concluding that the present record provides no basis upon which to instruct the jury that damages could be apportioned for the fear and/or risk of cancer between Altiere’s employment-related asbestos exposure and cigarette smoking, we find the trial court to have properly refused to give the jury the apportionment instruction requested by Fibreboard. Finding no other error, the judgment must be, as it is,

Affirmed.

KELLY, J., files a concurring statement. WIEAND, DEL SOLE and TAMILIA, JJ., file a dissenting opinions.

. See: Ottavio v. Fibreboard Corp., et al., 421 Pa.Super. 284, 617 A.2d 1296 (1992).

. Fibreboard has not argued on appeal that it was error for the trial court to refuse to instruct the jury that Altiere had a right to bring a second action if he developed future asbestos related injury; and, therefore, that issue is not before this Court in this appeal.