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Vispisiano v. Ashland Chemical Co.

Decided: June 29, 1987.

JOHN VISPISIANO AND BARBARA VISPISIANO, HIS WIFE, PLAINTIFFS-APPELLANTS, AND GENE CONLON AND NAN CONLON, HIS WIFE, PLAINTIFFS,
v.
ASHLAND CHEMICAL CO., M & M MARS, MARKTEX CORPORATION, ELCO SOLVENTS, BECTON DICKINSON COMPANY, CELANESE CORP., MAAS & WALDSTEIN COMPANY, ALPHA METALS INC., GENERAL FOODS CORPORATION, INMONT CORPORATION, JOHNSON & JOHNSON, KAISER ALUMINUM & CHEMICAL, FMC CORP., AIR PRODUCTS & CHEMICALS, INC., CHARLES OF THE RITZ, ROWE INTERNATIONAL, INC., EMULSITONE COMPANY, WARNER-CHILCOTT LABS, ITT RAYONIER INC., SUN CHEMICAL COMPANY, SEALED AIR CORPORATION, AMERICAN CYANAMID CO., ORTHO PHARMACEUTICAL CORP., ORTHO DIAGNOSTICS INC., STERLING DRUG INC., AMERICAN HOECHST CORP., ALCAN ALUMINUM CORPORATION, EXXON CORP., COSMAIR INC., J.B. WILLIAMS CO., INC., LILLY INDUSTRIAL COATINGS CO., INC., AND CONGOLEUM INDUSTRIES, INC., DEFENDANTS-RESPONDENTS, AND STRANAHAN FOIL COMPANY, HAWARD CORPORATION, NASSAU CHEMICAL CORPORATION, ARVEY CORPORATION, NAPCO CHEMICAL DIVISION, TENNECO CHEMICALS INCORPORATED, TEMPIL, SANDOZ-WANDER INCORPORATED, BATES MANUFACTURING COMPANY, DIAMOND SHAMROCK CORPORATION, MENNEN COMPANY, NATIONAL STARCH & CHEMICAL COMPANY, REICHHOLD CHEMICALS INCORPORATED, BRISTOL MEYERS PRODUCTS, MILTON CAN COMPANY, ALUMINUM SHAPES INCORPORATED, LIGHTMAN DRUM COMPANY, AND THIOKOL CORPORATION, DEFENDANTS



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Stein. Opposed -- None. Clifford, J., concurring. Clifford, J., concurring in the result.

Per Curiam

[107 NJ Page 419] The "discovery rule" is an equitable principle by which the accrual of a cause of action is delayed "until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an actionable claim." Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)). This appeal involves the application of the "discovery rule" to a toxic-tort case. Plaintiffs are John Vispisiano and his wife, Barbara. "Plaintiff" hereafter is intended to indicate John; Barbara Vispisiano will be referred to as plaintiff's wife. (A

companion case of plaintiffs Gene Conlon and Nan Conlon, his wife, is not part of this appeal.)

Plaintiff seeks recovery of damages for medical complications and bodily injuries resulting from his exposure to toxic chemical wastes during his six-months employment at a toxic-waste disposal site. His complaint against numerous suppliers, processors, manufacturers, and distributors of toxic-waste materials was dismissed as having been filed beyond the time allowed by the applicable statute of limitations, and the Appellate Division affirmed. We granted certification, 101 N.J. 323 (1985). We now reverse.

I

Plaintiff's exposure to the offending materials occurred during the period of his employment with Chemical Control Corporation in Elizabeth from October 1977 to April 14, 1978. He started this suit, based on negligence and willful and wanton misconduct, on March 12, 1982, almost four years after the final date of his employment with Chemical Control. The issue is whether by application of the "discovery rule" it may be said that the date on which plaintiff filed his complaint falls within the two-year period next after plaintiff's cause of action accrued, as required by N.J.S.A. 2A:14-2, the statute of limitations governing personal injury actions. Put differently, the question is whether plaintiff's cause of action accrued before March 12, 1980, as defendants contend and as the courts below determined, or after that date, as plaintiff argues.

The fact-sensitive nature of our inquiry requires a careful review of the evidence as disclosed at the so-called Lopez hearing, conducted in keeping with the procedures established in Lopez v. Swyer, supra, 62 N.J. 267 to determine if plaintiff's cause of action accrued more than two years prior to the date on which he filed his complaint. The record of that hearing includes not only the testimony of plaintiff and his treating physician but also various medical records, excerpts from testimony

in other proceedings and from depositions and answers to interrogatories, and part of a journal kept by plaintiff's wife.

At the time of the Lopez hearing plaintiff was thirty-four years old. His employment duties during his six months at Chemical Control included unpacking fifty-five gallon drums of various types of bottled chemicals packed in vermiculite, pumping flammable liquid chemicals from drums into a large holding tank, and "help[ing] out" when somebody needed assistance. By way of significant medical history we note that in 1968 he experienced migraine headaches as the result of an automobile accident, and that between 1968 and 1977 he was treated for headaches "a couple of times."

On January 17, 1978, plaintiff sought medical treatment for para-nasal congestion. The physician's note related that plaintiff "works at Chemical Control * * * near vermiculite * * *." The prescribed treatment required Vispisiano to stop using a nasal spray and to return for a follow-up visit.

Recall that the period of plaintiff's employment with Chemical Control was October 1977 to April 14, 1978. Sometime between the beginning of his employment and March 1, 1978, plaintiff began to experience swelling in various parts of his body, and to break out in rashes. He suffered from insomnia as well. Therefore, on March 1, 1978, he consulted Dr. Sandra Moss, an internist at the Rutgers Community Health Plan (RCHP), for treatment of the swelling and rashes and for diagnosis of those conditions. Dr. Moss was unable to pinpoint a cause of plaintiff's symptoms, but she considered plaintiff's recent marriage and new occupational responsibilities as possible causative factors. (Plaintiff's wife attributed the rashes to sun poisoning.) In a clinical note that was not disclosed to plaintiff Dr. Moss wrote: "Note marked chemical exposure."

On March 18, 1978, Vispisiano was rushed to the St. Peter's Medical Center Emergency Room suffering from severe migraine headaches. There he underwent several tests and was

eventually admitted by Dr. Philip Thurston. As evidenced by the doctor's report, plaintiff had previously suffered migraines:

This is a 29 year old white male, * * * who had a sudden onset of the worse[sic] headaches of his life * * * 6 days ago. This accompanied by vomiting, no loss of consciousness. * * * Approximately 3 days ago the patient had a similar sudden severe headache * * * and at that time he was admitted to St. Peter's * * *.

The diagnosis was vascular headaches, migraine variant. After a three to four day stay Vispisiano was discharged and directed to take aspirin and Caforgot, a drug used to combat migraines. Significantly, the discharge summary sheet listed the final clinical diagnosis as "Headaches undetermined etiology."

On both March 31 and June 7, 1978, plaintiff saw Dr. Thurston. The March 31 visit was a follow-up at which the doctor learned that the headaches had subsided. By the time of the June visit the headaches had vanished. Dr. Thurston's clinical note of March 31 reads: "I do not believe this patient has any significant health problems," and the one from June Seventh indicates that when plaintiff quit work at Chemical, the headaches ceased. Specifically, Dr. Thurston testified at the Lopez hearing that Vispisiano's "headaches got better because he had -- had changed or quit this job * * *." As the doctor recalled it, "I thought that his headaches might have been related to the stress of his job, you know, vascular headaches are made worse by high emotional stress." This theory was communicated to plaintiff, who then interpreted it to mean "[the doctors] just came up, I think, with migraine, but I had stress from the chemicals."

It was not until February 16, 1980, after plaintiff had consulted other RCHP physicians -- the record is uninformative on the purpose of those visits -- that plaintiff returned to Dr. Thurston. This appointment was prompted by plaintiff's complaint of foot pain and swelling. Early testing for gout proved inconclusive.

Thereafter, some time between February 25 and March 4, 1980, Vispisiano visited Eugene Conlon, a former Chemical Control employee and friend, who was hospitalized at St. Peter's.

During the visit plaintiff learned that Conlon was exhibiting symptoms similar to his own. Their discussion raised the possibility that those symptoms might have been caused by chemicals. Vispisiano testified, however, that in "speaking to my doctors, they said no." Plaintiff further expressed the thought that the source of the rashes and swelling might have been food, detergent, soap, or "men's problems." Finally, the record contains plaintiff's wife's deposition testimony that she and her husband had considered chemical contamination as a possible cause of his complaints, but because they "didn't get any answers from the doctors as to these illnesses," they speculated that the source of the problem might be food allergies. In fact, beginning in May 1981, plaintiff's wife kept a daily log of her husband's "health, things [he] ate."

As a result of his conversation with Conlon, Vispisiano called Dr. Thurston on March 4, 1980, and left the following message:

re. [illegible word] Swollen foot. Had blood work done. Works for Chem. Co. Thinks he has Chem. contamination in system and co-workers in hospital presently has same symptoms. Wants to speak to you.

When the doctor returned the call, an appointment was set up for March 13, 1980. The clinical note for that examination reads:

Pt very concerned because a former co-worker was recently admitted to the hospital because of constitutional SX & wt loss, extensive. W/u proved negative. Pt worried about future fertility because his friend had testicular swelling & pt had also had this in past -- thinks there may be a problem because of exposure to chemicals.

According to Dr. Thurston's testimony at the Lopez hearing, he did not "draw any conclusions" about a possible connection between plaintiff's condition and his exposure to chemicals. The doctor was specific on this point: he did not imply to plaintiff any opinion that such exposure was the cause of his problems, and in fact Dr. Thurston did not believe, on March 13, 1980, that plaintiff's condition was related to chemical exposure. His note on the medical record of his consultation that date reads: "doubt any significant pathology, but patient will need reassurance." The doctor testified that ultimately he

diagnosed plaintiff's condition as angio-edema, a condition with a number of causes but one that in seventy per-cent to eighty per-cent of the cases is labelled "ideopathic, meaning the cause is unknown." Finally, Dr. Thurston said that a test he performed in April 1981 for a "familial" form of angio-edema yielded a normal result.

At Dr. Thurston's suggestion plaintiff was examined on May 21, 1981, by Dr. Okie, an allergist, whose clinical note following that examination reads (to the extent that it is legible):

angioedema 3 yrs-duration. No pattern -- on feet testicles -- mouth & hands -- worked for toxic chemical company -- got worse after working -- worked for over 1 year now doesn't.

Several lines below the foregoing, and over Dr. Okie's signature, is the notation "Suspect autoimmune to chemicals," followed by what may be a prescription for medication. Dr. Okie saw plaintiff on two additional occasions, on June 2, 1981, and probably (the date on the record is unclear) July 16, 1981. According to plaintiff, Dr. Okie "wouldn't rule out" chemical exposure as the cause of his symptoms, but "he checked into it" and then consulted with Dr. Daum, another RCHP physician. It was she who ultimately related plaintiff's condition to toxic chemical exposure, in August 1982.

On the basis of the evidence recited above the trial court granted defense motions for dismissal of plaintiff's complaint as time-barred. Pertinent portions of the ...


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