Mauro v. Raymark Industries, Inc.

Supreme Court of New Jersey · 1989 · Torts

Tortstoxic tortsasbestos exposureenhanced risk of diseasemedical surveillanceemotional distressenhanced riskfuture injury

Facts

Roger Mauro was exposed to asbestos-containing products while working as a repairman and plumber-steamfitter at Ancora State Psychiatric Hospital from 1964 through the mid-to-late 1970s. Testing later revealed bilateral chest-wall thickening and diaphragmatic calcification, and plaintiff's pulmonary expert diagnosed pleural asbestosis. The expert testified that Mauro had an increased or high probability of being at risk for asbestos-related cancers, but he could not say that Mauro probably would contract cancer. The trial court also barred the expert from testifying about statistical studies correlating asbestos disease with cancer because those studies had not been disclosed in discovery.

Issue

May a plaintiff who has a present asbestos-related injury recover damages now for an enhanced risk of future cancer when the evidence shows only an increased risk, but does not establish to a reasonable medical probability that cancer will occur? Also, was the trial court justified in excluding undisclosed statistical and epidemiological studies from the expert's testimony?

Rule

In New Jersey, damages for prospective personal injury are recoverable only when the future harm is shown to be reasonably probable, not merely possible or unquantified. In toxic-tort cases, enhanced-risk damages for a future disease are therefore not recoverable absent proof that the disease is reasonably medically probable to occur, although medical-surveillance damages and emotional-distress damages based on present physical injury may still be available.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, Daniel Ortiz worked for years around industrial solvents and now has a diagnosed chemical-related lung scarring condition. His toxicology expert testifies that Daniel faces a substantially increased lifetime risk of liver cancer but cannot say that Daniel will probably develop liver cancer.

If Daniel seeks present damages for the future liver cancer itself, how should the court rule?

Explanation. The majority rule is that damages for prospective personal injury are recoverable only when the future disease is shown to be reasonably probable, not merely possible or increased in likelihood. A claim for enhanced risk seeks damages for the future disease itself, so proof of a substantial or high risk without testimony that the disease will probably occur is insufficient. (Derived from Mauro v. Raymark Industries, Inc. (n.d.).)