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In re In re Joint E. & S. Dist. Asbestos Litig.

Citation: 25 ELR 20828
No. Nos. 93-7829L et al., 52 F.3d 1124/(2d Cir., 04/06/1995)

The court holds that a district court erred in setting aside a jury verdict and ruling that plaintiff presented insufficient epidemiological and clinical evidence to support a causal connection between asbestos exposure and colon cancer. The district court found that plaintiff's evidence regarding strength and consistency of association, dose-response relationship, experiments, plausibility, and coherence did not satisfy any of the sufficiency criteria commonly employed by epidemiologists. The district court determined, therefore, that the sum total of plaintiff's evidence did not justify the jury's findings of causation. The district court granted defendant's Fed. R. Civ. P. 50(b) motion for judgment as a matter of law and reduced the $ 4.51 million jury verdict by $ 1.2 million.

The court first notes that the "admissibility" and "sufficiency" of scientific evidence necessitate different inquiries and involve different stakes. The court also notes that this case is about sufficiency of the evidence, not admissibility. The court finds that although Daubert v. Merrell Dow Pharmaceuticals, 23 ELR 20979 (U.S. 1993) significantly changed the standards governing the admissibility of scientific evidence by expanding district courts' discretion to evaluate the reliability and relevance of contested evidence, Daubert left intact the traditional standard governing the sufficiency of scientific evidence. As applied to the epidemiological studies admitted as evidence in this case, the court states that the question is not whether a study is valid or forceful, but rather whether it would be unreasonable for a rational jury to rely on that study to find causation by a preponderance of the evidence. The court holds that the district court erred in ruling that plaintiff presented insufficient epidemiological and clinical evidence to support the jury's verdict finding causation. The district court impermissibly made a number of independent scientific conclusions in a manner that Daubert does not authorize. Specifically addressing the district court's analysis of the scientific evidence, the court holds that the district court erred in disregarding certain testimony, discrediting certain testimony, disregarding certain studies, placing too much emphasis on other studies, not mentioning federal government agency reports that were before the jury, impermissibly disregarding several statements this court made in a 1992 opinion in this action, placing undue emphasis on defendants' use of animal studies and plaintiff's comparative lack of such evidence, rejecting plaintiff's experts's differential diagnosis, and giving little weight to plaintiff's relatively young age of death.

The court next addresses third-party defendant contractors' challenges to the district court's denial of their claim that there was insufficient evidence to support the jury's finding that they had constructive notice of the dangers of asbestos. The court holds that the evidence in the record, taken together, provides an ample basis for a rational jury to conclude that the contractors had actual, or at least constructive, notice of hazards associated with asbestos dust. There was evidence relating to caution labels on containers of asbestos-containing products, state- and federal-promulgated regulatory measures for asbestos, the presence of the contractors at safety meetings in which asbestos dangers were discussed, and numerous news reports on the hazards asbestos poses. The court holds that the third-party defendant subcontractor, who actually sprayed the asbestos, was clearly on notice. The same factual evidence that demonstrated constructive notice as to the two other third-party defendants was introduced against the subcontractor, and warning labels and an application manual identifying various safety measures gave the subcontractor actual notice. The court also holds that as to the subcontractor's alleged negligence, evidence supported a triable question of fact for the jury. The court holds that the jury's apportionment of faultto the contractors and subcontractor bars the contractors' claims for common-law indemnification from the subcontractor. Finally, the court remands this case to the district court to provide plaintiff the requisite opportunity to decide whether to accept the reduced verdict or submit to a new trial.

Counsel for Plaintiff
Steven J. Phillips
Levy, Phillips & Konigsberg
90 Park Ave., New York NY 10016
(212) 972-1480

Counsel for Defendant
Frank H. Santoro
Danaher, Tedford, Lagnese & Neal
Capitol Pl., 21 Oak St., Hartford CT 06106
(203) 247-3666

Before Newman, Miner and Cabranes, JJ.