On appeal from the Superior Court of New Jersey, Law Division, Camden County.
O'Brien, Skillman and Landau.
Plaintiffs appeal from an order granting judgment in favor of defendants*fn1 notwithstanding the jury's verdict in favor of plaintiffs. Defendants cross appeal from the denial of their motions for a new trial. We affirm.
In this product liability, failure-to-warn case, plaintiff Elwood Malin alleges that he became afflicted with photocontact dermatitis from exposure to a chemical manufactured by defendants. This chemical was contained in an epoxy resin which was used by plaintiff's employer, DeVoe Marine Coating Company (DeVoe), in the preparation of a patching compound. The alleged offending chemical is known as diglycidyl ether of bisphenol A, or "083". The defendants stipulated to their manufacture and distribution of "083," each under their own registered names. The patching compound prepared by DeVoe has two components, MD 3487 which is white in color, and MD 3486 which is black in color. For simplicity at trial these components were
referred to as the "white material" and the "black material." It is only the "black material" which contains "083."
The proofs established that Malin, who worked as a filler, was filling one-quart containers with hot "white material" on September 30, 1980 and was exposed to fumes and steam from the hot product which came up into his face. At the same time, there was another mixing tank approximately six to ten feet away, which allegedly contained the "black material." Fumes were emanating from the top of this tank which looked like steam. On one occasion when Malin stood up to stretch his legs, he walked over and looked inside the mixing tank containing the "black material." It is alleged that this exposure to the "black material" containing "083" caused Malin's photocontact dermatitis.*fn2
Malin had been employed by DeVoe for approximately three and one-half years. He began as a maintenance man, but later became a filler. He had suffered from contact dermatitis for many years prior to the incident in question from exposure to various chemicals used by his employer. He had previously seen a number of doctors for treatment. He first came under the care of Dr. Herbert Allen for contact dermatitis on January 5, 1980, over eight months before he was exposed to defendant's products.
Plaintiff conceded that he only worked with the "white material" on one day, which his employer's records identified as September 30, 1980. He never worked with the "black material" containing "083." He was only exposed to the "black material" when he looked into the container mixing the "black material" on September 30, 1980.*fn3 Dr. Allen testified that
Malin contracted photocontact dermatitis and became a persistent light reactor from his exposure to heated epoxy resin containing "083." However, on cross-examination Dr. Allen conceded that he could not say that the limited exposure to the "black material" containing the "083," as described my Malin, was a competent producing cause of the condition. He did say, however, "It may be enough exposure to do it" and "I am not sure, but, I think, it is enough to say it may be possible." [Emphasis supplied.]
There was no dispute that "083" could cause contact dermatitis. One of the defendants' material safety data sheets, received into evidence, stated that "083" may be a skin sensitizer. The DeVoe label affixed to the "black material" specifically states: "May cause eye and skin irritation, sensitization or other allergic responses."
Malin contends that the "083" contained in the "black material" was defective because of a failure to provide an adequate warning that it could cause photocontact dermatitis. Malin acknowledged he had contracted contact dermatitis from exposure to some one or more of the many chemicals to which he was exposed in the DeVoe plant.*fn4 Thus the issues presented were extremely narrow, i.e., did plaintiff's short exposure on September 30, 1980 to the "black material" containing "083" cause his photocontact dermatitis, and did defendants have a duty to warn that their product could cause photocontact dermatitis. Defendants contend that "083" does not cause photocontact dermatitis. Furthermore, defendants contend they carried their burden of proving there was no information reasonably available or obtainable that their product could cause photocontact dermatitis. Thus they conclude they should not
be deemed to know of such alleged dangerous propensity, ...