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Daisey v. Keene Corp.11/1/1993
Following a five-day trial on plaintiffs' asbestos personal injury action, the jury found that plaintiff Willis Daisey did not have an asbestos-related injury. Plaintiffs appeal that verdict and we affirm.
We need not recount in detail all of the evidence presented during the trial. It is undisputed that during his employment from 1939 to 1964, plaintiff had been substantially exposed to asbestos. It is also undisputed that that occupational asbestos exposure has resulted in pleural thickening in his lungs. What injuries plaintiff has sustained as a result of that thickening and whether any other conditions and injuries are related to his asbestos exposure, was hotly contested.
Dr. Guidice, plaintiffs' expert, testified that prior chest x-rays showed bilateral interstitial fibrosis, pleural thickening and pleural plaques, all related to the asbestos exposure. He noted that pulmonary function testing showed obstructive lung disease caused by both cigarette smoking and asbestos exposure. He explained that plaintiff's productive cough and occasional wheezing were not attributable to asbestos exposure. But he concluded that plaintiff's shortness of breath was consistent with occupational asbestos exposure. Dr. Guidice diagnosed plaintiff as suffering from pleural asbestosis, asbestosis pleural plaque formation and parenchymal asbestosis.
Defendants' medical expert, Dr. Alan Pope, agreed with Dr. Guidice that the prior x-rays showed evidence of pleural thickening and interstitial fibrosis. He disagreed that they showed anything more. Dr. Pope acknowledged that some of the pleural thickening was associated with plaintiff's occupational asbestos exposure. When questioned whether "when we talk about pleural asbestosis or pleural asbestos disease, we're talking about scarring in the pleura caused by asbestos fibers," Dr. Pope responded in the affirmative. However, he disagreed that the interstitial fibrosis was evidence of asbestosis and opined that it was caused by non-asbestos-related obstructive lung disease. Dr. Pope further
opined that plaintiff's cough, chronic bronchitis and shortness of breath were not asbestos-related conditions but were caused by plaintiff's earlier cigarette smoking. Pulmonary function tests, he said, did not show evidence of an asbestos-related disease. The jury obviously found Dr. Pope's testimony credible.
I.
After all the evidence was presented, plaintiffs moved for a directed verdict on an asbestos-related injury, pointing out that both Dr. Guidice and Dr. Pope agreed plaintiff had pleural thickening related to his asbestos exposure. Plaintiffs contend the trial Judge's denial of that application was error. We disagree. See Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 437, 605 A.2d 1092 (1991); Sullivan v. Combustion Engineering, 248 N.J. Super. 134, 140, 590 A.2d 681 (App.Div.), cert. denied, 126 N.J. 341, 598 A.2d 897 (1991). It is for the jury to determine whether pleural thickening constitutes an injury. Ibid.
Caterinicchio is dispositive. There, as here, the medical experts agreed that plaintiff had pleural thickening related to asbestos exposure. Plaintiff's expert opined that plaintiff suffered from asbestos-related disease while the defense expert concluded that plaintiff's pleural changes caused no disability or impairment. The trial court granted plaintiff's motion for a directed verdict, holding that pleural thickening constituted an injury as a matter of law, and allowed the jury to determine only the e
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