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Rubanick v. Witco Chemical Corp.

Decided: April 29, 1988.

PATRICIA RUBANICK, EXECUTRIX OF THE ESTATE OF RONALD G. RUBANICK, AND PATRICIA RUBANICK, GUARDIAN AD LITEM FOR DAMIEN RUBANICK AND RONALD C. RUBANICK, INFANTS, PLAINTIFFS,
v.
WITCO CHEMICAL CORP. (FOR DISCOVERY), WITCO CHEMICAL CORP., MONSANTO COMPANY (FORMERLY MONSANTO CHEMICAL CORP.), ABC CORP. (A FICTITIOUS CORPORATION); DEF CORPORATION (A FICTITIOUS CORPORATION); JOHN DOE (IDENTITY UNKNOWN) AND CARL DOE (IDENTITY UNKNOWN), DEFENDANTS



Hamlin, J.s.c.

Hamlin

Defendant Monsanto Chemical Company brings this motion in limine to exclude the testimony of plaintiff's sole expert in this toxic tort wrongful death action. Plaintiff's decedent, Ronald Rubanick, was employed by Witco Chemical Company from 1974 to 1979 at its Perth Amboy facility. In 1979 Rubanick was diagnosed as suffering from colon cancer which had reached stage four, having already metastasized to other sites. Despite aggressive treatment at local hospitals and the Sloan-Kettering Cancer Institute in New York City his condition steadily declined and he expired on July 23, 1980 at age 29. Plaintiff is decedent's widow and brings this action in her own right and as guardian ad litem for her two minor children. The complaint alleges that during Rubanick's employment at Witco he was exposed to a toxic chemical compound, polychlorinated biphenyls (PCBs), manufactured by Monsanto and sold to Witco for use as a heat transfer fluid. It is plaintiff's contention that PCBs are generally a carcinogen in humans and specifically the proximate cause of Rubanick's colon cancer and his resultant death. Plaintiff's only proffered evidence as to causation is Earl Balis, Ph.D., a biochemist cancer researcher.

Defendant seeks to bar the testimony of Dr. Balis on the following theories:

1.) That a biochemist is not a qualified expert pursuant to Evid.R. 56 to testify generally as to human cancer causation.

2.) That a biochemist is not a qualified expert pursuant to Evid.R. 56 to testify as to cancer causation in relation to a specific individual.

3.) That Dr. Balis has expressed a novel scientific opinion not generally accepted by the scientific community.

4.) That Dr. Balis' opinion is not supported by an adequate scientific and factual basis.

Those questions require the Court to resolve issues of novel impression as to the degree of expertise necessary to testify as to human cancer causation and to determine the state of medical research regarding carcinogenic effects of PCB exposure. In dealing with these issues an extensive Rule 8 hearing was held wherein the Court received testimony from physicians, a toxicologist, an epidemiologist and a biochemist. Prior depositions, medical records, numerous esoteric laboratory studies and employment records were received in evidence. The testimony covered three days and shall be referenced by volume number, (Vol. I, 9/9/87, Vol. II, 9/10/87, Vol. III, 9/14/87) and page. As the moving party Monsanto had the burden of going forward with sufficient evidence to call into question the admissibility of the proffered testimony. Having so done the burden of proof switched to plaintiff to satisfy the Court by the preponderance of the credible evidence as to his witness' expertise, both generally and specifically, the adequacy of the factual foundation for his opinion and scientific acceptance of the theory that formed the basis of his proffered opinion. Evid.R. 19, 56(2).

In brief Dr. Balis offers the opinion that PCBs are a human carcinogen in general and specifically that Rubanick's exposure to PCBs during his employment at Witco was a proximate cause of his colon cancer and resultant death. Monsanto asserts that there is no general or substantial minority acceptance by the scientific community of human carcinogenicity of PCBs and further that Balis' factual basis as to exposure and contact by Rubanick, given accepted medical standards, is fatally deficient.

The motion is critical to the litigation. If Dr. Balis is not permitted to testify as to his opinion plaintiff cannot prevail in this action. The question is ripe for disposition.

In sustaining its prima facie burden, Monsanto produced three witnesses. Dr. Thomas Fahey is a licensed physician and a board certified internist. He is the deputy physician in charge of the Memorial Hospital at Sloan-Kettering and Associate Dean of Medicine at Cornell University Medical College. He has been continuously associated with Sloan-Kettering during his professional career with principal emphasis on clinical care of oncology patients. He has broad and deep experience in the diagnosis and treatment of cancer generally and colon cancer specifically. He has participated in research protocols and publications on patients with endocrine related cancers. He has performed no bench laboratory research and has published nothing on carcinogenesis. Dr. Fahey is familiar with epidemiological principles and their scientific uses but he has published nothing in the field and does not hold himself out to be an expert in the field. Although he has done no prime research in carcinogenesis he is familiar with the scientific literature and is familiar with identified human carcinogens. He has done no research on the specific issue of the effect of PCB exposure on humans or animals. Dr. Fahey concedes that a biochemist with primary research responsibilities would be more conversant with carcinogenesis literature than a treating clinical physician.

Raymond Harbison, who holds a Ph.D. in toxicology, testified on behalf of Monsanto. Dr. Harbison has been a toxicologist for 17 years and is currently Director of Toxicology at the University of Arkansas in conjunction with the National Center for Toxicological Research. In addition to his toxicological training Dr. Harbison holds a degree in pharmacology and has conducted primary research at both the Tulane Medical School and the Vanderbilt University Medical Center. He currently is a consultant for the National Institute of Health, and has been a consultant to the United States Environmental Protection

Agency on the toxic effects on humans of PCB exposure. He has additionally served as a consultant to many state agencies on toxic substances and their regulation. He has special knowledge and experience with human exposure to PCBs and is fully conversant with human epidemiological studies. Dr. Harbison has been directly involved, over the last 6 years, with a medical and toxicological study of employees of a PCB disposal company in Arkansas which disposes of PCBs from all over the United States. He has studied and evaluated over three hundred subjects annually who handle PCBs on a daily basis. As part of the project the study examines workers in the PCB disposal industry as to: their general medical condition, PCB blood levels, dermatological condition and possible liver abnormalities. Dr. Harbison recognizes as valid scientific authorities: The Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the National Institute of Occupational Safety and Health (NIOSH). He does not recognize the International Agency for Research of Cancer (IARC) as a valid scientific authority.

Dr. Philip Cole testified as an expert epidemiologist. Epidemiology is the study of the distribution and determination of causes of diseases of human beings. Dr. Cole is a licensed medical doctor and holds a Ph.D. from the Harvard School of Public Health where he subsequently served as a full-time professor of epidemiology. He currently is the chairman of the Department of Epidemiology at the University of Alabama and chairman of the National Cancer Institute committee on human cancer causes. He previously spent one year in the Department of Epidemiology of the IARC. Dr. Cole is currently a member of the Board of Scientific Counsellors of the Division of Cancer Causes and Research. Dr. Cole is thoroughly familiar with epidemiological principles and conclusions therefrom and is conversant with both the medical and epidemiological literature as to cancer causation and PCB exposure. Dr. Cole does not recognize the IARC as completely authoritative in human cancer causation.

Plaintiff offered Dr. Earl Balis as his sole expert witness. Dr. Balis holds a Ph.D. in biochemistry. Although currently retired, Dr. Balis was engaged for 37 years as a primary cancer researcher at the Sloan-Kettering Cancer Center. During that time he headed up a research group concerned with the investigation of the cause, diagnosis and treatment of colon cancer. He has previously served as chairman of the Department of Biochemistry of the Cornell University Medical College and was an associate editor of the publication General Cancer Research. He has personally authored or participated in the publication of approximately 170 scientific articles of which approximately 15 dealt with carcinogenesis. He has authored nothing specifically on the carcinogenicity of PCBs. Dr. Balis has served on the National Large Bowel Cancer Committee. He has previously served on a research team with Dr. Nancy Keminey, Rubanick's treating physician at Sloan-Kettering. Dr. Keminey was not offered as a witness in this case. Dr. Balis recognizes IARC as authoritative but questions the NIOSH study done by Witco. He is widely conversant with the literature on carcinogenesis. He concedes he does not possess Dr. Cole's qualifications in epidemiology. He has never testified in court as an expert before this case.

1.) May Dr. Balis offer an opinion on human carcinogenesis generally?

While expert testimony should be rejected by a trial court very cautiously, Evid.R. 7, Germann v. Matriss, 55 N.J. 193 (1970), a trial court's discretion will not be lightly disturbed absent clear error. Foley Machinery Co. v. Amland Contractors, Inc., 209 N.J. Super. 70 (App.Div.1986). Dr. Balis has never testified in a court of law as to human medical causation. Nonetheless, Dr. Balis' entire career has been in cancer research. His publications in recognized scientific journals include articles on carcinogenesis. Testimony in the Rule 8 hearing clearly demonstrates the wide ranging scientific study of cancer. While laymen customarily think of physicians as

prime sources of medical theory, it is clear that modern medical conclusions are based upon numerous scientific sources. Clearly epidemiologists and toxicologists may be relied upon to contribute to our understanding of human disease and occurrence. In addition there is cross reliance to many other disciplines. Research done by molecular biologists, pharmacists, radiologists, and chemists make up only part of the body of scientific sources recognized in the continuing investigation of cancer, its causation and treatment. Such reliance by experts on the opinions of others is recognized and accepted by the courts. Evid.R. 56(2). As indicated in comment 7, "* * * the law merely recogniz[ed] that in all scientific inquiry it is common for one expert to premise an opinion on those of fellow technicians in related or cognate fields of science." In this case even defendant's expert Fahey concedes that as to basic research he would rely on competent biochemists who are often more conversant with carcinogenesis research than a clinical physician.

Broad cross qualification is often recognized and accepted. The following cases are instructive: Ayers v. Jackson Twp., 202 N.J. Super. 106 (App.Div.1985), (geologist may testify as to toxic pollutant migration); Rosenberg by Rosenberg v. Cahill, 99 N.J. 318 (1985), (medical doctor may testify as to chiropractic standards held in common). Thus, as to general qualification the Court is satisfied that given the training, experience, research and familiarity of Dr. Balis with the scientific literature on ...


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