Amicus Curiae Brief — Metro-North Commuter R. Co. v. Buckley

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

METRO-NORTH COMMUTER RAILROAD COMPANY,

Petitioner,

Vv.

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

OWENS-ILLINOIS, INC.

IN SUPPORT OF PETITIONER

Of Counsel: W. DONALD MCSWEENEY *

PHILIP MCWEENY RoBeERT H. RILEY

OWENS-ILLINOIS, INC. SCHIFF HARDIN & WAITE

One Sea Gate 7200 Sears Tower

Toledo, OH 43666 Chicago, IL 60606

(419) 247-1004 (312) 876-1000

Attorneys for Amicus Curiae

Owens-Illinois, Inc.

December 16, 1996 * Counsel of Record

WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

STATEMENT OF INTEREST OF AMICUS CURIAE..

SUMMARY OF ARGUMENT .....0

ARGUMENT. FE EEE EEE EERE SETHE EEE EEE EEE EEE OEE H EEE RHEE EEE EEE EEE EEE EEE HEH

I. THE ASBESTOS LITIGATION IS UNMAN-

AGEABLE ONLY WHEN PERSONS WHO

ARE NOT PHYSICALLY IMPAIRED ARE

NONETHELESS ALLOWED TO MAINTAIN

ePID serrentecqneypnoniirnenmetanetinliparegecaiainanignizens

MR. BUCKLEY’S EXPOSURE TO ASBESTOS

WILL NOT AUTOMATICALLY—OR EVEN

A. Mr. Buckley Is Not Presently Impaired........

B. Exposure Does Not Equal Disease ...

ONLY PERSONS WHO ARE PHYSICALLY

IMPAIRED HAVE A COMPENSABLE TORT

SE caniceppmcregremcncrnaitiineeatinenepeniateecieninnlatin

A. Unimpaired Plaintiffs Have No Compen-

B. The Line For Compensable Tort Injury

Should Be Drawn At Physical Impairment...

THE COSTS OF MEDICAL MONITORING

SHOULD BE LIMITED TO PERSONS WITH

Vv. MEDICAL MONITORING IS NOT JUSTI-

FIED ON THIS RECORD ..............

CONCLUSION .............20..:00-0-0000-

ii

TABLE OF AUTHORITIES

CASES Page

Ayers v. Township of Jackson, 525 A.2d 287 (N.J.

GD, ccisntectsunitiitiietahinie, Hikermnintavinidhiiepeincncptiaaininatinane

Ball v. Joy Technologies, Inc., 958 F.2d 36 (4th

Cir. 1991), cert. denied, 503 U.S. 1033 (1992)... 21

Burns v. Celotezx Corp., 587 N.E.2d 1092 (Ill.

App.), appeal denied, 596 N.E.2d 626 (Ill.

I crctrccocctiideucsercdenscsonvacensanetaniinhasancannstatianamaigiadioe 8

Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz.

1987), review dismissed, 781 P.2d 1373 (1989) 8, 18, 20

Catasauqua Area “chool Dist. v. Eagle-Picher

Indus., Inc., No. 85-8748, 1988 WL 102689 (E.D.

SS | SR ee 21

Caterinicchio v. Pittsburgh Corning Corp., 605

A.2d 1092 (N.J. 1992)... n---.c-cceccccccccccccseeneeeeenes 7,18

Dafler v. Raymark Indus. Inc., 611 A.2d 136 (N.J.

Super. 1992), aff’d, 622 A.2d 1305 (N.J. 1993). 24

Hagerty v. L & L Marine Services, Inc., 788 F.2d

Ff SEE 21

Hansen v. Mountain Fuel Supply Co., 858 P.2d

es 21

Hayes v. AC&S, Inc., No. 95-CH-1835 (Cook

County, Ill. Oct. 30, 1996) aE IRB: 1 Oph Rlns Ta 22

Herber v. Johns-Manville Corp., 785 F.2d 79 (3d

De hiicecencpbleibbhsisedeittddirccdiadeicinagarctsimaenes 18

In re Asbestos Cases (Mulligan), 586 N.E.2d 521

Ci SN TIED siisitiaiesiesscntinehipesecrnsnenetecunguenaatngagnapecee x

In re Asbestos II Consol. Pretrial, 142 F. R. D. 152

(N.D. Ill. 1991) .. 8,17

In re Asbestos Litig. “(Mancari and ‘Gajeweki),

No. 347, 1995 Del. LEXIS 323 (Del. Sept. 5,

REET Pa ES APs Sy ae ay Se 7

In re Asbestos Products Liab. Litig. (No. V1),

No. MDL 875, 1996 WL 239863 (E.D. Pa. May

OD * I ib iii bine iccnatidemneasiniorigaemimimaanatittetanseeee 3,9

In re Asbestos Products Liab. Litig. (No. V1),

No. MDL 875, 1996 WL 589589 (E.D. Pa.

Sept. 16, 1996) . 6-7

In re Hawaii Federal Asbestos Cases, 134 F. ‘Supp.

1563 (D. Hawaii 1990) 2.222.222.2202. 7, 8,17

iii

TABLE OF AUTHORITIES—Continued

Page

J.H. France Refractories Co. v. Allstate Ins. Co.,

gilli et I SE as 16

Marinari v. Asbestos Corp., 6.2 A.2d 1021 (Pa.

Super. 1992) .. 19

Mauro v. Raymark Industries, ‘Ine., 561 A2d 257

cenit ee ee 21

Meganthaler v. Asbestos Corp., 480 A.2d 647

MAIR Se SRE SS CE ke IS 22

Meyerhoff v. Turner Const. Co., 584 N.W.2d 204

(Mich. App. 1995), appeal denied, 550 N.W. 2d

REISER Os A emits 20-21

Owens-Illinois, Inc. v. Armstrong, 591 A.2d 544

(Md. App.), rev’d on other grounds, 604 A.2d

47 (Md. 1991), cert. denied, 506 U.S. 871

Ee A a EE al ie cS th a telli al 17

Pollock v. Johns-Manville Sales Corp., 686 F. Supp.

ga iri lie el taeda 19

Potter v. Firestone Tire and Rubber Co., 862 P.2d

RR eT cet Le cil lh 21

Purjet v. Hess Oil Virgin Islands Corp., No. 1985/

284, 1986 WL 1200 (D.V.I1. Jan. 8, 1986)... ss—s«o221-22

Redland Soccer Club v. United States Dep’t of

the Army, 55 F.3d 827 (3d Cir. 1995), cert.

denied, 116 S. Ct. 772 (1996) 21

Schweitzer v. Consolidated Rail Corp., 758 F.2d

936 (3d Cir.), cert. denied, 474 U.S. 864

A ee lcm NC, ci art ls tA ects Sil 8, 18

Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996) 1,7, 8,

18, 21

Thomas v. FAG Bearings Corp., Inc., 846 F. Supp.

ne Ce 21

Werlein v. United States, 746 F. Supp. 887 (D.

I etek ee 21

Wright v. Eagle-Picher Indus., 565 A.2d 377 (Md.

REET Ed li Te A, de ID 8

PUBLICATIONS

K. Brown, Asbestos-Related Disease and the “One

Fibre” Theory, Occupational Health Review

(Oct./Nov. 1987)

ttt hh. LeeLee LL ee

iv

TABLE OF AUTHORITIES—Continued

Centers for Disease Control, Public Health Conse-

quences of Smoking—25 Years of Progress. A

Report of the Surgeon General, 1989 DHHS

Publ. No. (CDC) 89-8411 (1989) —....................

D. Dail and S. Hammar, Pulmonary Pathology (2d

0 Se ey eee ee

R. Doll & J. Peto, Effects on Health of Exposure

to Asbestos (1985) —............-----

D. Eddy, Common Screening Tests (Am. College

of Physicians 1991) ..

S. Martin & J. Martin, Tort Actions for Medical

Monitoring: Warranted or Wasteful?, 20

Colum. J. Envtl. L. 121 (1995) —.......................

B. Mossman, J. Bignon, M. Corn, A. Seaton, J.

Gee, Asbestos: Scientific Developments and

Implications for Public Policy, Science, Jan.

CO EEE

eS SE a ee

5 er ee

Report of the Judicial Conference Ad Hoc Com-

mittee on Asbestos Litigation (March 1991)...

Restatement (Second) of Torts (1965) —..............

V. Roggli, Human Disease Consequences of Fiber

Exposures: A Review of Human Lung Pathol-

ogy and Fiber Burden Data, 83 Envtl. Health

| §.

D. Shopland, H. Eyre, T. Pechacek, Smoking At-

tributable Mortality in 1991: Is Lung Cancer

Now the Leading Cause of Death Among Smok-

ers in the United States?, J. of the Nat'l Cancer

I ( Ry—E—E—R——————EEE EE

U.S. Preventive Services Task Force. Guide to

Clinical Preventive Services (2d ed. Williams

a ee re 2

E. Wiechmann, Curse of the Unsick: Update on

Latent Injury Claims in Toxic Tort Cases, 25

Brief 10 (Summer 1996) ......................................

Page

11

~

In THE

Supreme Court of the United States

OcToBER TERM, 1996

No. 96-320

METRO-NorRTH COMMUTER RAILROAD COMPANY,

¢. Petitioner,

MICHAEL BUCKLEY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

OWENS-ILLINOIS, INC.

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE

Owens-Illinois, Inc. (“Owens-Illinois”) seeks to assist

the Court in its analysis of the medical and scientific issues

that serve as the purported foundation for the right of

recovery announced by the Second Circuit in this case.

Owens-Illinois has substantial experience with those med-

ical and scientific issues. Respondent’s medical expert wit-

nesses often testify against Owens-Illinois in trials of

asbestos-related personal injury cases. Owens-Illinois also

was one of the parties in Simmons v. Pacor,

Inc., 674 A.2d 232 (Pa. 1996), in which the Pennsyl-

vania Supreme Court held that the mere presence of a

physical sign or “marker” of exposure to asbestos that is

detectable by x-ray, but causes no impairment, does not

2

constitute a compensable tort injury. Owens-Illinois’ ex-

case

be helpful to the Court because the Court has only

one-half of a trial record before it. This matter was

Owens-Illinois manufactured asbestos-containing thermal

insulation products for a limited period of time ending

in early 1958. More than two decades after it ceased

manufacturing and selling such products, Owens-Illinois

began receiving literally tens of thousands of personal

injury claims arising from alleged exposure to the asbestos

contained in those products. To date, Owens-Illinois has

resolved more than two hundred thousand such claims.

It nonetheless remains a defendant in more than fifteen

thousand asbestos-related personal injury cases.

One reason Owens-Illinois continues to be plagued by

thousands of asbestos-related claims almost four decades

after it last sold the product giving rise to those claims

is the wave of new filings by individuals who have x-ray

changes consistent with asbestos exposure, but who suffer

no current impairment of any kind. These non-impairment

claims represent a serious challenge to the ability of the

courts of this country to manage asbestos-related litiga-

tion. In many jurisdictions, however, affirmative steps

have been taken to ensure that such claims are dismissed

or placed on administrative dockets so that judicial and

party resources are directed toward the claims of indi-

viduals alleging actual impairment or death due to

asbestos-related diseases.

The decision of the Second Circuit in this matter

threatens to create a new category of claims by permitting

suit by individuals who are not presently impaired and

have no detectable physical signs of asbestos-related dis-

ease. There is virtually no limit to the number of

“exposure only” plaintiffs who would have causes of

SUMMARY OF ARGUMENT

I. PB anes yh, cicg Ayes peng nee tralbayemae

whether who are not sick may nonetheless recover

tort damages simply because they were occupationally

exposed to a potentially harmful substance— in this case,

asbestos.

gue Pines egg Bisey wey aly ay

new to the asbestos litigation. Until now,

however, such claims have generally been limited to plain-

tiffs who have suffered a clinically detectable physical

change caused by asbestos exposure. Most courts that

have confronted the issue have held that asymptomatic

plaintiffs have not suffered a compensable tort injury and

(Indeed, Judge Weiner has overseen the resolution of

more than 40,000 asbestos cases.) In re Asbestos Prod.

Liab. Litig., No. MDL 875, 1996 WL 239863, *1 (E.D.

Pa. May 2, 1996). The courts have held that physical

impairment is the hallmark of compensable tort injury

and that the limited resources of the judiciary and parties

involved in this mass tort problem should be directed at

those claims that involve actual impairment or death.

Il. The Respondent, Mr. Buckley, presents the most

extreme form of non-impairment claim, for he admittedly

has no clinically detectable changes whatsoever from his

alleged asbestos exposure. His is an “exposure only”

4

claim. His “injury” is limited to theoretical health risks

and the fears spawned thereby.

Mere exposure to a substance that may cause harm

decades later has never been thought sufficient to support

a tort claim, and for good reason. There is no tangible,

discernible injury to moor the proceedings. The plaintiff

does not even suggest that it is more probable than not

that he will someday become functionally impaired, so

the trial devolves into a debate about what is theoretically

possible.

The judicial system is required to guess which of the

“exposure only” plaintiffs that come before it will be the

one in twenty (or one hundred, or ten thousand) who

will someday realize the injury the risk of which all pur-

portedly share—a guess that will, by definition, often

turn out to be wrong. The alternative is to pretend that

all plaintiffs will suffer the threatened fate, a decision that

will overcompensate all but a tiny statistical minority.

All the while, thousands of truly impaired plaintiffs will

be required to wait their turn in the litigation queue.

Ill. The trial court record in this case is a testament to

the futility of litigating risk-as-injury. No one knows what

level of asbestos exposure Mr. Buckley actually had (no

breathing zone measurements were conducted during his

alleged exposure), so his experts made “estimates” based

upon dubious extrapolations from different workers in

different trades in different workplaces at different times.

Even those experts, however, admit that Mr. Buckley’s

exposure is unlikely to lead to any asbestos-related disease.

The rule articulated by the Second Circuit—that people

with “massive” exposure to a potentially harmful sub-

stance have suffered compensable tort injury even in the

absence of physical impairment—is unlimited in scope,

unsupported by the trial court record and virtually unprece-

dented. The better rule of law, and the rule this Court

should reaffirm, is that the tort law has limits; that the

5

judicial system cannot remedy every risk or fear attendant

to living and working in a potentially hazardous world;

that a tort plaintiff must suffer present physical impair-

ment for there to be a compensable injury.

IV. Medical monitoring should be an item of damages

available only to those persons who have a compensable

tort injury. The better reasoned decisions in this area

are based on the principle that only in the context of a

discernible physical impairment can a court deal mean-

ingfully with the concept of future medical expenses.

Medical monitoring is very expensive and, if made avail-

able to people who are not impaired, would divert re-

sources away from compensating those plaintiffs who are

impaired.

V. The record in this case does not support Mr. Buckley’s

claim for the cost of medical monitoring. The theory of

relative risk underlying the claim—that any exposure to

asbestos, no matter how slight, creates “significant” risk

of disease—is both scientifically and logically flawed. Mr.

Buckley’s smoking habit and other occupational exposures

and disease risks were virtually ignored by Respondent's

experts pursuant to the theory that a distinct medical

monitoring program for asbestos disease could be fash-

ioned independent of the complex array of health care

services a person would otherwise require throughout his

or her life. There was no proof offered to support that

theory, or to establish that such monitoring would provide

reliable results or would somehow change the course of

admittedly untreatable diseases.

Moreover, the U.S. Preventive Services Task Force

found that a “routine chest x-day to screen for lung can-

cer”——the exact relief Mr. Buckley seeks—is “ineffective.”

Even Mr. Buckley’s expert at trial admitted that no study

shows that routine x-rays have any benefit for individuals

who, like Mr. Buckley, have both asbestos exposure and

a history of smoking cigarettes. Medical monitoring, if

6

ever appropriate, should be an item of damages only

where the monitoring is shown to be medically appropriate

and beneficial.

ARGUMENT

I. THE ASBESTOS LITIGATION IS UNMANAGE-

ABLE ONLY WHEN PERSONS WHO ARE NOT

PHYSICALLY IMPAIRED ARE NONETHELESS

ALLOWED TO MAINTAIN LAWSUITS

As this Court enters for the first time the thicket of

asbestos-related personal injury litigation, it must be pre-

pared to separate the facis 1rom the hyperbole surrounding

this area of law. Perhaps the most persistent misunder-

standing involves the notion that all asbestos-related claims

are alike and that the judicial machinery of this nation

is grinding to a halt because of the claims of people who

are dead or dying as a result of asbestos exposure. While

it is true that a tragic number of people have contracted

fatal or disabling asbestos-related diseases, their claims

represent a relatively small and shrinking proportion of

pending claims nationwide.

Asbestos litigation dockets are increasingly dominated

by the claims of people, like Mr. Buckley, who are not

sick. Until now, asymptomatic plaintiffs would at least

point to the presence of non-dysfunctional “pleural

plaques” as the basis for their claim. Pleural plaques,

also known as pleural thickening, pleural scarring and

pleural fibrosis, are the most common of the bodily

changes at issue in unimpaired cases. The pleural mem-

brane is a thin tissue covering the lungs and lining the

thorax that separates the lungs from the rib cage and

diaphragm. This membrane secretes a moistening liquid

that allows the lungs to expand during respiration without

rubbing against the chest wall. Pleural plaques are a

benign change to the pleurae and are generally not in

any way disabling or symptomatic. See In re Asbestos

Products Liab. Litig. (No. V1), No. MDL 875, 1996 WL

7

539589, *2 n.8 (E.D. Pa. Sept. 16, 1996); In re Asbestos

Litig. (Mancari and Gajewski), No. 347, 1995 Del. LEXIS

323, *1 (Del. Sept. 5, 1995); Caterinicchio v. Pittsburgh

Corning Corp., 605 A.2d 1092, 1095 (N.J. 1992) (citing

R. Doll & J. Peto, Effects on Health of Exposure to

Asbestos 2 (1985) ).

When pleural thickening is asymptomatic (“benign”),

“individuals are able to lead active, normal lives, with no

pain or suffering, no loss of an organ function, and no

disfigurement due to scarring.” Simmons, 674 A.2d 232,

236 (Pa. 1996) (citing In re Hawaii Federal Asbestos

Cases, 734 F. Supp. 1563, 1567 (D. Hawaii 1990) ).

Indeed, individuals with asymptomatic pleural thickening

cannot feel it; they do not know that they have it; and

it is undetectable without the use of an X-ray.

Even with the long latency periods associated with

asbestos disease, the claims of death or serious illness

arising from occupational exposures from the 1930's

through the 1960's have largely been brought and resolved

over the last decade. They have now been replaced by

even larger numbers of “pleural plaque” claims. It is

widely feit that the sheer volume of claims involving

this non-impairing condition created a “crisis” in docket

control that led to the establishment of MDL 875.

See Report of the Judicial Conference Ad Hoc Committee

on Asbestos Litigation 22, 26-27 (March 1991).

fectively transferred to plaintiffs’ counsel, the only con-

venient hedge that the lawyers have against the risk

non-recovery is volume. A large award of “risk” or “fear”

damages in a single non-impairment case would subsidi

the cost of seeking such awards in all such cases, so the

low probability of winning the lottery can be offset by

playing often.

Experience in a growing number of jurisdictions has

shown, however, that the huge flood of claims by plaintiffs

who are unimpaired can effectively be stemmed through

a variety of means. As will be discussed more fully below

(see-pp. 17-20, infra), most courts that have confronted

the issue have concluded—as Owens-Illinois submits this

Court should—that claims by plaintiffs who are not ‘Il must

be dismissed. See, e.g., Simmons, 674 A.2d at 23 | In re

Hawaii Federal Asbestos Cases, 734 F. Supp. at 1567-

69; Burns v. Jaquays Mining Corp., 752 P.2d 28, 31

(Ariz. 1987), review dismissed, 781 P.2d 1373 (1989);

Wright v. Eagle-Picher Indus., 565 A.2d 377, 380-81

(Md. App. 1989); Schweitzer v. Consolidated Rail Corp.,

758 F.2d 936, 942 (3d Cir.), cert. denied, 474 U.S. 864

(1985). Other courts have placed such unimpaired claims

on inactive dockets until such time (if ever) that an

asbestos-related illness develops. See, e.g., In re Asbestos

Il Consol. Pretrial, 142 F.R.D. 152 (N.D. Ill. 1991);

In re Asbestos Cases (Mulligan), 586 N.E.2d 521, 523

n.4 (Ill. App. 1991) (noting existence of such inactive

dockets in numerous other jurisdictions); Burns v. Celotex

Corp., 587 N.E.2d 1092 (Ill. App.), appeal denied, 596

N.E.2d 626 (Ill. 1992).

Perhaps the most innovative, fair and practical responses

to the challenges of asbestos-related litigation have come

from Judge Charles Weiner in the context of MDL 875, the

multidistrict litigation that has, since 1991, encompassed

all asbestos-related claims pending in the federal courts.

Judge Weiner has overseen resolution of more than

40,000 of the almost 59,000 asbestos-related cases that

2,

9

have been brought before him. In re Asbestos Products

Liab. Litig. (No. VI), No. MDL 875, 1996 WL 239863,

*1 (E.D. Pa. May 2, 1996). When faced with more

than 18,000 maritime cases from claimants who, accord-

ing to the materials produced by the plaintiffs’ counsel,

~ were not ill, Judge Weiner “administratively dismissed”

those cases without prejudice and with all statutes of lim-

itation tolled. Jd. at *4. Judge Weiner’s answer to the

problem of unimpaired claims, which explicitly preserves

the right of the plaintiffs to “msintain an action should

their circumstances warrant the furtherance of their case,”

id., is precisely the type of resolution calibrated to retain

fairness and balance in the asbestos-related litigation.

Mr. Buckley’s case, of course, represents a new and even

more extreme version of the non-impairment claim: as

discussed below, he does not even have pleural plaques.

Mr. Buckley’s only purported tort injury is the mere fact

of exposure to a potentially harmful substance.

This case therefore squarely presents the question

whether asbestos-related personal injury litigation should

be restricted to plaintiffs who at least claim to be pres-

ently impaired, or whether it should be thrown open to

plaintiffs who admittedly are functionally normal. Many

lower courts have taken responsible steps to restrict the

litigation to those who can show present physical impair-

ment, and that answer to the problem is equally appli-

cable here. This Court should be careful not to undue

the work of Judge Weiner and his colleagues in the federal

and state judiciaries who have found ways to avert a real

asbestos crisis.

Il. MR. BUCKLEY’S EXPOSURE TO ASBESTOS WILL

NOT AUTOMATICALLY—OR EVEN PROBABLY-—

LEAD TO ILLNESS

A. Mr. Buckley Is Not Presently Impaired

It is undisputed that Mr. Buckley is not sick or in any

way impaired by his exposure to asbestos. His Amended

Se TE ee eG TT ee a

10

Complaint admits that fact: “[TJhe plaintiff is not bring-

ing a cause of action or claiming damages for the actual

clinically diagnosed condition of asbestosis, lung cancer,

or other asbestos-related disease or illness.” (J.A. 17)

(emphasis added).

His own expert witness, Dr. Markowitz, testified that

Mr. Buckley’s breathing and chest x-rays are both “nor-

inal” (J.A. 73-74) and that Mr. Buckley exhibits “ab-

solutely no [evidence of] asbestos-related disease.” (J.A.

118). Indeed, Mr. Buckley is able to walk fifteen to

twenty miles per week and can climb seven flights of stairs

“with no difficulty.” (J.A. 173).

B. Exposure Does Not Equal Disease

Mr. Buckley’s good health is hardly surprising, common

misconceptions about asbestos-related disease notwith-

standing. Asbestos exposure is ubiquitous in this country:

“Everyone in any urban environment has some asbestos

exposure.” (J.A. 108). Even if one considers only oc-

cupational exposures, the plaintiff's proof was that, in just

seven industries, more than 16 million individuals have

asbestos exposure. (J.A. 280-81).

Asbestos exposure, however, simply is not the equiva-

lent of asbestos disease. The body has extensive, multi-

faceted defense mechanisms that protect us from inhaled

substances, including asbestos. (J.A. 109). Standard

texts in the field conclude that these mechanisms clear

from the lungs the overwhelming majority of inhaled

asbestos fit»: +:

Many inhaled asbestos fibers, as with dust in general,

are also effectively entrapped and cleared. A study

by Evans, et al. in an animal model suggested that

two-thirds of the inhaled fibers were trapped in the

larger airways, thus greatly limiting the potential

peripheral burden. By the end of the first month,

it was further observed that clearance had eliminated

three-fourths of the particles that reached the distal

airways.

11

D. Dail and S. Hammer, Pulmonary Pathology 919 (2d

ed. 1994 )(footnote omitted).' Those fibers that remain

are then attacked at the cellular level by scavenger cells

called macrophages. (J.A. 79).

Even Mr. Buckley’s expert witnesses admit that the in-

cidence of asbestos-related disease is dose-related. (J.A.

110). Beyond that factor lie questions of individual sus-

ceptibility, for it is undisputed that people with virtually

identical exposure histories experience dramatically differ-

ent results for reasons medical science cannot explain.

What medical science can and does explain, however, is

that asbestos-related disease does not occur, except at cer-

tain discernible levels of exposure. See, e.g., B. Mossman,

J. Bignon, M. Corn, A. Seaton, J. Gee, Asbestos: Scien-

tific Developments and Implications for Public Policy,

Science, Jan. 1990, at 198. A standard text on occupa-

tional lung disorders states, “The threshold of exposure

below which clinical evidence of asbestos would not ap-

pear has been put conservatively at 25 fibres/ml years.”

Epidemiological evidence suggests a slightly higher ex-

posure threshold for increased lung cancer risk.” W.

Parkes, Occupational Lung Disorders 482 (3d ed. 1994)

(citations omitted). That same text also states, “The low-

est estimated cumulative exposure on record resulting in

a mesothelioma appears to be of the order of 5 fibres/ml

year....” Id. at 474.

While the plaintiff’s experts did not contest much of the

foregoing (e.g., “[L]ower levels of exposure are needed for

1One of the authors of that text, Dr. Hammar, is commonly

called by the plaintiffs to testify in asbestos-related personal injury

trials.

2 Exposure levels are customarily expressed in terms of the num-

ber of asbestos fibers per milliliter of air. The cumulative exposure

of any individual is customarily expressed as the average exposure

level experienced by the individual over the course of his/her work-

ing life, multiplied by the years of exposure. For example, an

average exposure of 5 fibers/ml for 5 years would result in a

cumulative exposure of 25 fibers/m! years.

12

mesothelioma than to produce asbestosis” (J.A. 66)),

im that a hypothetical risk of disease—as op-

posed to actual incidence of disease—occurs at any level

of exposure, no matter how slight. According to Dr.

is no established safe level . . . [I}f

there is any exposure, there is some level of risk.” (J.A.

58). Dr. Nicholson went even further, claiming that ex-

posure to barely measurable levels of asbestos in the am-

one of us in the United States” at risk of developing an

asbestos-related disease. (J.A. 310-11). The level at

which risk begins, according to Dr. Nicholson, is “any

exposure to asbestos whatsoever.” (J.A. 336).

There are, in the eyes of the medical and scientific

community, many difficulties with Dr. Nicholson’s “one

fiber” theory of asbestos risk. See generally K. Brown,

Asbestos-Related Disease and the “One Fibre” Theory,

Occupational Health Review (Oct./Nov. 1987). For pres-

ent purposes, the most telling shortfall is one admitted by

Dr. Nicholson himself:

Q. You don’t have any hard data to support this

do you?

A. Other than the linearity of data at higher

exposures, . . . a specific experiment to validate

effect, to identify effects for low exposure, is not

feasible.

x # * * *

Q. you would agree that there is [sic] no data

currently available that actually reports the incidence

of asbestos-related cancers beyond that expected at

exposure below .025 fibres per milliliter?

A. Icompletely agree with that.

(J.A. 336, 352).

The most that can be said, then, about the evidence

before the trial court is that the plaintiff did not even

suggest, much less prove, that exposure to asbestos in-

evitably, or even likely, results in disease. Rather, if the

13

plaintiff's experts are to be believed (despite an admitted

lack of supporting data), Mr. Buckley—like virtually

every other American—has a theoretical possibility of de-

veloping an asbestos-related disease. That risk, argues

the plaintiff, should be held to constitute a compensable

injury.

Ill. ONLY PERSONS WHO ARE PHYSICALLY IM-

PAIRED HAVE A COMPENSABLE TORT INJURY

A. Unimpaired Plaintiffs Have No Compensable

li jury

This case centers on the question, when, if ever, does

an asbestos-exposed individual suffer a compensable tort

injury? Does every person who has been exposed to

asbestos have a compensable tort injury for emotional

distress or fear of disease, simply because we know, to a

reasonable degree of scientific certainty, that exposure to

asbestos causes some kind of change to their bodies at

the cellular level? If not, what sensible line can be drawn

to distinguish those asbestos-exposed persons who have

compensable tort injuries from those who have no such

injury?

Owens-Illinois submits that the line must be drawn at

physical impairment—plaintiffs who do not claim to be

sick should not be allowed to recover damages. Mr. Buck-

ley, and other unimpaired plaintiffs, would draw the line

much differently, but their notions of compensable injury

are so broad as to be wholly unworkable.

In this case, Mr. Buckley faced the quandary of show-

ing that he had suffered a “physical impact” from his

asbestos exposure without the benefit of any “verifiable

clinical signs” of that exposure. (J.A. 641). Indeed, as

demonstrated in Section II supra, Mr. Buckley could offer

no proof of bodily change—much less physical impair-

ment—as a result of his exposure to asbestos.

In the absence of illness or even a detectable bodily

change, the Second Circuit drew the compensable injury

Ht

Hi

a

i

RE

THISTLE

were, i ,

was entitled to recover because his asbestos exposure

“massive, lengthy and tangible.” (J.A. 645). sae eumst

record to draw a distinction between “massive” exposure

versus “moderate” or “limited” exposure. a oe

181). It was, he opined, “roughly equivalent to the kind

of . exposure that :

(J.A. 189).

15

(J.A. 236-38, 255). Dr. Nicholson admitted that these

lent to eight hours of insulators’ asbestos application work.

(J.A. 236-38). He then made an adjustment based upon

the supposed “fact” that all insulators worked for twenty-

Dr. Nicholson was sot yet finished. He opined that

by asbestos, for he extrapolated Mr. Buckley's asbestos-

related cancer risk to be 3/2S5ths (the supposed exposure

ratio of Mr. Buckley to all insulators) of 30%, or 2.3%.

(J.A. 243-44). Admitting some “uncertainty” in his

calculation, he expanded the range of increased cancer

risk to “1 percent to 5 percent.” (J.A. 244).

No legal standard based upon this form of statistical

sleight-of-hand can bear rational scrutiny or be applied

fairly in the myriad factual circumstances of the thousands

of “exposure only” claims that are sure to Dr.

Nicholson's exposure “estimate” flies in the face of the

dust counts actually taken in Grand Central Station during

the relevant period (albeit not specifically during Mr.

Buckley's alleged exposure)—all of which or

below .01 fibres/ml (less than 1/10,000th of

son’s high-end estimates for removal work). (J.A. 334).

Dr. Nicholson’s own published exposure levels for in-

sulators were only 3 fibres/ml, a fraction of the level he

assumed in his “estimate.” (J.A. 324-25).

The Second Circuit’s resort to mere adjectives to estab-

lish the line between compensable tort injury and no cause

of acti A ton eet Gnd ible” ;

understandable in the face of Dr. Nicholson’s “estimate.”

It remains, however, no standard at all.

no

If functional impairment is to be abandoned as the

essence of tort injury, why draw the line at “massive

exposure"? Why exclude “moderate” exposure? The

honest answer is that, once the requirement of functional

substances) almost immediately. See, e.g., J.H. France

(Pa. 1993). These advances, while stretching our scien-

17

by fear of an impairing asbestos-related illness that he or

does not have. The asbestos litigation “lottery” would

be expanded, and the transactions costs of litigating

the speculative claims of non-impaired plaintiffs would be

As a growing number of jurisdictions have come to

tion testing. See, e.g., In re Asbestos I] Consol. Pretrial,

142 F.R.D. at 156-57.

Among the most influential decisions in this area is

In re Hawaii Federal Asbestos Cases. That court found:

Plaintiffs must show a compensable harm by adducing

testimony of a functional impairment due to asbestos

exposure. A claimant’s subjective testimony as to

shortness of breath and fatigue without more is not

sufficient. In other words, the mere presence of as-

bestos fibers, pleural thickening or pleural plaques

in the lung unaccompanied by an objectively verifi-

able functional impairment is not enough.

734 F. Supp. at 1567 (emphasis in the original).

The Maryland Court of Special Appeals also found

that asymptomatic pleural thickening is not a legally

compensable injury. Owens-Illinois, Inc. v. Armstrong,

591 A.2d 544, 561 (Md. App.), rev'd on other grounds,

604 A.2d 47 (Md. 1991), cert. denied, 506 U.S. 871

(1992). That court pointed to Section 7 of the Restate-

ment (Second) of Torts (1965), noting that it identifies

“harm” as a necessary element in a cause of action for

negligence and strict liability. Comment b to Section 7

further explains that: “‘[hjarm’ implies a loss or detri-

oe 2 ee ee a ae ee ae

in some physical person ... In so far as physical changes

18

have a detrimental effect on a person, that person suffers

harm.’” Id. Moreover, as other courts and commenators

have noted, “ ‘[t}he threat of future harm, not yet realized,

is not enough.”” Jaquays, 752 P.2d at 30 (quoting

Prosser and Keeton on the Law of Torts § 30 at 165

(Sth ed. 1984)).

Another major decision on this subject was the Pennsyl-

vania Supreme Court’s recent ruling i: Simmons v. Pacor,

Inc. That court denied recovery for asymptomatic pleural

thickening, holding that illness is required for recovery

in asbestos-related litigation, including claims for emo-

tional distress damages. 674 A.2d 237-38. The Third

Circuit issued a landmark statement on this issue in

Schweitzer:

It is true that the possible existence of subclinical

asbestos-related injury prior to manifestation may

be of interest to a histologist. [citations omitted]

Likewise, the existence of such injury may be of

as a necessary element of an asbestos-related tort

action . . . best serves the underlying purpose of tort

law: the compensation of victims who have suffered.

Schweitzer, 758 F.2d at 942 (emphasis added); see also

Caterinicchio, 605 A.2d at 1096 (finding no reported

decision holding that pleural thickening constitutes a com-

pensable injury); Herber v. Johns-Manville Corp., 785

F.2d 79, 89 (3d Cir. 1986) (district court properly ex-

cluded evidence of increased risk of future cancer where

plaintiff had pleural thickening but could not establish

that he would be more likely than not to experience can-

cer in the future); Jaguays, 752 P.2d at 31 (finding “no

reason to depart from traditional tort concepts and allow

recovery for injuries before any disease becomes mani-

19

fest”); Pollock v. Johns-Manville Sales Corp., 686 F.

Supp. 489, 491-92 (D.N.J. 1988) (plaintiff with pleural

thickening could not litigate the issue of increased risk

of cancer because he could not show the risk was more

probable than not).

recognized that asbestos litigation transaction costs are

As courts have noted, to rule otherwise would inevita-

bly result in a gross misallocation of compensatory dam-

ages. See, e.g., Marinari v. Asbestos Corp., 612 A.2d

1021, 1026-27 (Pa. Super. 1992). Those who never actu-

20

Will reversing the Second Circuit’s decision serve as a

panacea for the asbestos litigation problem confronting

the nation’s courts? No, there is no simple, comprehensive

answer that any court or party has yet devised to this

seemingly intractable problem.

A strong statement from this Court rejecting claims by

unimpaired plaintiffs will, however, make a bad situation

materially better. Such a statement will help ensure

that lower courts and the parties will be able to concen-

trate scarce resources on claims of actual illness and

that progress in reducing the backlog of such claims

will not simply be erased by the next wave of unimpaired

claims.

IV. THE COSTS OF MEDICAL MONITORING SHOULD

BE LIMITED TO PERSONS WITH A COMPEN-

SABLE TORT INJURY

If this Court finds that plaintiffs who are not ill from

exposure to asbestos have no compensable tort injury, it

should also find that such claimants cannot recover for

the costs of a lifetime of medical monitoring. The Second

Circuit’s decision to allow Mr. Buckley to recover on his

claim for medical monitoring is a departure from the

traditional and sound legal principle that there can be no

cause of action for damages in tort without the presence

of actual physical injury at the time of the suit.

Although the lower courts are divided as to whether

unimpaired plaintiffs can recover for medical monitoring,’

*Some courts, including the Second Circuit below, have held

that proof of mere exposure to a harmful substance is sufficient

to recover medical monitoring costs. (J.A. 649) (allowing recovery

for medical monitoring “despite the fact that [Buckley]! has yet

to suffer an asbestos-related disease”); see also Jaquays, 752 P.2d

at 33-34 (allowing recovery for medical monitoring despite reject-

ing other compensatory damages claims); Meyerhoff v. Turner

Const. Co., 584 N.W.2d 204, 206 (Mich. App. 1995) (allowing

medical monitoring costs for exposure to asbestos absent present

21

the better-reasoned decisions have barred such claims based

on a compensable injury requirement. For example, the

Fourth Circuit, in rejecting medical monitoring damages in

a toxic exposure case, found that “{a] claim for medical

surveillance costs is simply a claim for future damages .. .

such relief only is available where a plaintiff has sustained

a physical injury that was proximately caused by the

defendant.” Ball v. Joy Technologies, Inc., 958 F.2d 36,

39 (4th Cir. 1991), cert. denied, 503 U.S. 1033 (1992).

See also Thomas v. FAG Bearings Corp., Inc., 846 F.

Supp. 1400, 1410 (W.D. Mo. 1994) (“fe]Jntitlement to

the costs of future medical monitoring requires plaintiff

to prove actual present injury and an increased risk of

future harm”); Werlein v. United States, 746 F. Supp.

887, 904 (D. Minn. 1990) (permitting medical monitor-

ing only where “a given plaintiff can prove that he has

present injuries”); Catasauqua Area School Dist. v. Eagle-

Picher Indus., Inc., No. 85-3743, 1988 WL 102689 at *1

(E.D. Pa. Sept. 28, 1988) (mere exposure to asbestos

is not an injury that supports medical monitoring); Purjet

injury), appeal denied, 550 N.W.2d 535 (Mich. 1996); Redland

Soccer Club v. United States Dep't of the Army, 55 F.3d 827, 845-

48 (3d Cir. 1995) (allowing recovery for medical monitoring

claim despite lack of present injury where plaintiff can prove

“significant exposure”), cert. denied, 116 S. Ct. 772 (1996) ; Hansen

v. Mountain Fuel Supply Co., 8568 P.2d 970, 980 (Utah 1993)

(allowing recovery for medical monitoring despite lack of injury

where plaintiff can show that a reasonable physician would

prescribe a different monitoring regime than if not exposed). The

Pennsylvania Supreme Court in Simmons suggested that medical

monitoring should be available to individuals with occupational

exposure to asbestos and non-dysfunctional pleural plaques. 674

A.2d at 289.

Other courts have required the plaintiff to prove that an injury

is “reasonably certain to occur” as a result of toxic exposure or

that there is a “reasonable medical probability” of it occurring.

E.g., Hagerty v. L & L Marine Services, Inc., 788 F.2d 315, 319

(5th Cir. 1986) ; Mauro v. Raymark Industries, Inc., 561 A.2d 257,

266 (N.J. 1989); Potter v. Firestone Tire and Rubber Co., 863

P.2d 795, 821-23 (Cal. 1998).

22

v. Hess Oil Virgin Islands Corp., No. 1985/284, 1986

WL 1200, at *4 (D.V.I. Jan. 8, 1986) (medical monitor-

ing only appropriate where there is an actual injury);

Meganthaler v. Asbestos Corp., 480 A.2d 647, 651 (Del.

1984) (summary judgment in favor of defendant where

plaintiff alleged no present injury); Hayes v. AC&S, Inc.,

No. 95-CH-1835, at 13-14 (Cook County, Ill. Oct. 30,

1996) (rejecting claim for medical monitoring for ex-

posure without manifest symptoms).

These decisions flow from the principle that only in

the context of a discernible physical impairment can the

courts deal meaningfully with the concept of future medical

expenses. The physical impairment requirement moors the

inquiry to a specific condition and course of treatment.

While consideration of future medical expenses is perhaps

inherently speculative, the courts have properly reasoned

that the present impairment requirement provides the

necessary boundaries to ensure rational results.

The Second Circuit ignored those boundaries, choosing

instead to link medical monitoring to subjective character-

izations of exposure provided by the plaintiff himself,

augmented by an “estimate” of exposure (and consequent

risk) worthy of Rube Goldberg. That rule has no mean-

ingful limiting principles and should be rejected by this

Court.

There is an inaccurate perception that medical mon-

itoring is a relatively inexpensive means for providing

compensation to individuals who have been exposed to a

toxic substance; in fact, the costs for medical monitoring

in toxic tort cases can be “staggering.” E. Wiechmann,

Curse of the Unsick: Update on Latent Injury Claims in

Toxic Tort Cases, 25 Brief 10, *44 (Summer 1996). In

the seminal medical monitoring decision by the New

Jersey Supreme Court, the total compensatory damages

awarded at the trial level were $24,058,892, with more

than one-third ($8,204,500) attributable to medical mon-

23

itoring costs. Ayers v. Township of Jackson, 525 A.2d

287, 291 (N.J. 1987).

Permitting damages for medical monitoring where there

is no evidence of an actual asbestos-related illness could

divert untold millions of dollars away from compensation

to the injured and toward costly medical tests—or straight

cash awards—for the uninjured. The result would be a

windfall for healthy plaintiffs who never manifest injury

and insufficient compensation for those who are sick now

or become sick later.

Perhaps the most significant question raised by Mr.

Buckley’s bid for medical monitoring damages is where

this type of compensation would stop. If Mr. Buckley

is able to recover money for his future medical care based

solely on his exposure to asbestos, could he then recover

further medical surveillance costs for his alleged exposure

to other toxic substances?

The Amended Complaint alleged that Mr. Buckley “has

and will in the future incur medical expenses for the

testing and monitoring of his medical condition related

to his exposure to harmful amounts of hazardous mate-

rials, including but not limited to asbestos.” (J.A. 17)

(emphasis added). As one set of commentators has

pointed out, with an estimated thirty-eight percent of all

cancers attributable to occupational exposure to toxic

chemicals and 50,000 hazardous waste sites in the United

States, “in the very near future we may all have reason-

able grounds to allege that some negligent business ex-

posed us to hazardous substances and to get medical

experts to testify that the exposure Significantly increased

our risk of disease .. . .” §. Martin & J. Martin, Tort

Actions for Medical Monitoring: Warranted or Wasteful?,

20 Colum. J. Envtl. L. 121, 130 (1995). To follow the

Second Circuit’s view of when medical monitoring costs

should be awarded would be to fill the courts with cases

of dubious merit and to allow an ever-increasing per-

24

centage of damages awards to go to litigation expenses

instead of for truly compensatory purposes.

Vv. MEDICAL MONITORING IS NOT JUSTIFIED ON

THIS RECORD

Bad factual records make bad law, as this case threatens

to prove. The plaintiff's proof was not that “massive,

lengthy and tangible” exposure to asbestos creates the

type of disease risk that justifies medical monitoring.

Rather, it was that virtually any exposure to asbestos—

even exposure below the OSHA standard of .1 fiber/ml—

creates “a significant risk” of disease. (J.A. 356).

It mattered not to the plaintiff's experts, for example,

that the absolute risk of lung cancer from asbestos expo-

sure among a population of insulators (not pipefitters)

is, according to their selected authorities, only 55 per

100,000 of population per year—a risk of approximately

1/20th of 1%. Dafler v. Raymark Indus. Inc., 611 A.2d

136, 140 (N.J. Super. 1992), aff'd, 622 A.2d 1305

(N.J. 1993). It was enough that asbestos exposure pur-

portedly increases the relative risk of lung cancer five

times over background. (J.A. 62).*

It also mattered not to the plaintiff's experts that Mr.

Buckley smoked approximately a pack of cigarettes per

day for twenty years, because he had recently cut back

to one cigarette per day. According to Dr. Markowitz,

Mr. Buckley had only “some risk” of smoking-related

cancer, a risk that supposedly was less than three to five

times that of a non-smoker. (J.A. 163). According to

Dr. Nicholson, eighty to ninety percent of that excess

4 Even this five-fold relative increase is based on a single study

published seventeen years ago and premises the increased risk on

four lung cancer deaths in insulation workers. (J.A. 150-57).

Moreover, these were insulation workers who, although they may

have smoked cigarettes, in the estimation of the researchers they

“never smoked regularly.” (J.A. 156).

25

smoking risk would disappear within ten years of quitting

the smoking habit. (J.A. 250-51).

Even a cursory review of the Surgeon General’s most

recent data on smoking-related cancer risks shows that the

Second Circuit was palpably misled. Current male smok-

ers who smoke 1 to 20 cigarettes per day have 18.8 times

the lung cancer risk of non-smokers. D. Shopland, H.

Eyre, T. Pechacek, Smoking Attributable Mortality in

1991: Is Lung Cancer Now the Leading Cause of Death

Among Smokers in the United States?, J. of the Nat'l

Cancer Inst. 83, 1143 (Aug 21, 1991) (quoting data

from Centers for Disease Control, Public Health Conse-

quences of Smoking—25 Years of Progress. A Report of

the Surgeon General, 1989, DHHS Publ. No. (CDC)

89-8411 (1989)).

During the first year of quitting smoking, that lung can-

cer risk actually goes up to 26.7 times background. /d.

Ten years after quitting, the risk is still 8.7 times back-

ground. /d.

The point here is that Mr. Buckley has a dramatically

increased risk of lung cancer due solely to his smoking

habit. As one author has noted, of the hundreds of thou-

sands of lung cancers occurring in this country annually,

“85 to 90% .. . are attributable to cigarette smoking,

whereas as few as 2% of cases may be related to asbestos

exposure.” V. Roggli, Human Disease Consequences of

Fiber Exposures: A Review of Human Lung Pathology

and Fiber Burden Data, 84 Envtl. Health Perspective 301

(1990) (citation omitted).

It is one thing to suggest that asbestos defendants pro-

vide the functional equivalent of HMO services to individ-

uals with diagnosed, impairing asbestos-related diseases.

In the face of such confounding hazardous exposure, to

suggest that they do so where no such present injury from

asbestos exposure exists is uprecedeted and unfair.

The problems with Mr. Buckley’s medical monitoring

claim, and the Second Circuit’s opinion concerning same,

26

do not end there. The purpose of medical monitoring is

supposed to be to improve the plaintiff's prognosis through

early detection of disease. The record here, however, is

that monitoring will confer no meaningful benefit because

the asbestos-related diseases about which Mr. Buckley

claims to be concerned are untreatable: “Lung cancer is

still largely an incurrable disease.” (J.A. 60). As for

mesothelioma, “There is no successful treatment in the

sense of a cure.” (J.A. 56). Unfortunately, the same is

also true for asbestosis: “[T]Jhere is nothing we can do

about it.” (J.A. 65).

The Second Circuit took no account of the fact that,

when medical monitoring is viewed not as a litigation con-

struct, but rather as a scientific discipline, important gov-

erning principles emerge. According to the U.S. Preven-

tive Services Task Force, monitoring procedures can only

be justified where they have proven effectiveness, they pro-

duce neither false positives nor false negatives at unac-

ceptable levels, they “avoid[] harm to asymptomatic

patients,” and they have been shown that “they improve

clinical outcome.” U.S. Preventive Services Task Force.

Guide to Clinical Preventive Services xxxi (2d ed. Wil-

liams & Wilkins 1996).

Applying these principles, the Task Force specifically

found that a “routine chest x-ray to screen for lung can-

cer”—the very relief sought here—is “ineffective.” /d.

The Task Force is not alone in reaching this conclusion:

Because of the available evidence, virtually all or-

ganizations concur that screening for lung cancer is

not justified. For example, the American Cancer

Society, the American College of Radiology, the

National Cancer Institute, the U.S. Preventive Serv-

ices Task Force, and the Canadian Task Force on

the Periodic Health Examination all decline to recom-

mend lung screening with any test at any frequency.

D. Eddy, Common Screening Tests 322 (Am. College of

Physicians 1991) (citations omitted). Even Dr. Marko-

27

witz admits that no study has been conducted to support

the alleged utility of chest x-rays for indivduals with a

combination of asbestos exposure and a history of ciga-

rette smoking. (J.A. 164).°

Owens-Illinois respectfully submits that recharting the

course of asbestos-related litigation to encompass medical

monitoring for all asbestos-exposed individuals who can

find an expert witness to declare their “estimated” ex-

posure to be “significant” is both unwise and unnecessary.

No scientific principles articulated in this record justify

such a step. No material benefit to plaintiffs has been

shown. The transactions costs of litigating the medical

monitoring rights of all exeosed persons would threaten

to overwhelm both the judicial resources of the civil jus-

tice system and the financial resources of that subset of

asbestos defendants who have thus far avoided bankruptcy.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

Of Counsel: W. DONALD MCSWEENEY *

PHILIP MCWEENY ROBERT H. RILEY

OWENS-ILLINOIS, INC. SCHIFF HARDIN & WAITE

One Sea Gate 7200 Sears Tower

Toledo, OH 43666 Chicago, IL 60606

(419) 247-1004 (312) 876-1000

Attorneys for Amicus Curiae

Owens-Illinois, Inc.

December 16, 1996 * Counsel of Record

* As noted supra, Dr. Nicholson takes the extreme position that

any exposure to a carcinogen will produce cancer: he also believes

that this “no safe level” analysis applies equally to radiation.

(J.A. 261). The logical implication of those views is that annua!

chest x-rays as part of a medical monitoring regime would actually

generate cancers.