On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, Deighan and Brochin. The opinion of the court was delivered by Michels, P.J.A.D.
[240 NJSuper Page 290] Plaintiff Mary Ann Vuocolo, as Administratrix ad prosequendum for the estate of Lucy Vuocolo, appeals from a summary judgment of the Law Division entered in favor of defendant Diamond Shamrock Chemicals Company in this personal injury toxic tort case brought pursuant to N.J.S.A. 2A:15-3. Plaintiff, on behalf of the estate of her mother, Lucy Vuocolo (decedent),
sought to recover damages for pain and suffering which occurred during her mother's lifetime as a result of contracting pancreatic cancer. She alleged that dioxin, a toxic substance which defendant released into the environment, substantially increased decedent's risk of contracting cancer. The trial court, on cross-motions for summary judgment, held that plaintiff had failed to establish her claim and dismissed the action.
In 1955, defendant's predecessor, Diamond Alkali, put into operation a chemical plant at 80 Lister Avenue in the Ironbound section of Newark. In 1960, an explosion at the Lister Avenue plant released a large amount of dioxin, a dangerous by-product of the chemical process, into the environment. An additional amount of dioxin was dispersed some time later when the building was destroyed and removed from the site. Although the explosion occurred in 1960, it was not until 1983 that the explosion and the dioxin release became public knowledge. Thereafter, the New Jersey Department of Environmental Protection (DEP) conducted tests in the area surrounding the Lister Avenue plant. On September 16, 1985, the DEP took soil samples from decedent's property and tested them for dioxin. By letter dated November 22, 1985, the DEP informed plaintiff that only harmless trace amounts of dioxin were discovered in the samples and that remedial action was not necessary. The DEP also determined that there were no harmful concentrations of dioxin in the other homes it sampled. Nonetheless, it conducted a street sweeping operation to rid the area of any contaminated dirt and dust.
In 1971, more than 10 years after the explosion, decedent moved into a home at 60 Joseph Street, which is located less than two blocks from defendant's Lister Avenue plant. Decedent was active in the neighborhood and was frequently outside working or walking. Sometime after moving to Joseph Street,
decedent was diagnosed as having pancreatic cancer from which she died on January 23, 1981.
In 1985, plaintiff instituted this action on behalf of her mother's estate against defendant. Although plaintiff was unable to quantify decedent's ingestion of dioxin or even establish that she in fact ingested any amount of dioxin or was even exposed to dioxin, plaintiff claimed, based on principles discussed in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984) and Hake v. Manchester Township, 98 N.J. 302, 486 A.2d 836 (1985), that it was unnecessary to show causation in the traditional sense as long as she could establish that defendant put decedent at risk and decedent was ultimately injured. In support of plaintiff's claim, Dr. Deborah Barsotti, a pathologist, submitted a report in which she concluded:
[It] is my opinion that Mrs. Vuocolo was exposed to TCDD in sufficient quantities to develop clinical toxicity as demonstrated by chloracne. Furthermore, Diamond Alkali's accident that released TCDD into the surrounding area is responsible for the preponderance of TCDD to which Mrs. Vuocolo was exposed. Subsequently, Mrs. Vuocolo died of adenocarcinoma of the pancreas. Due to the rare nature of the cancer and the male preponderance, it is my opinion that Mrs. Vuocolo's exposure to TCDD substantially increased her risk of developing adenocarcinoma and may have caused or promoted this disease.
Defendant conceded that it released dioxin into the atmosphere and that decedent died from pancreatic cancer. However, defendant denied responsibility for decedent's death and maintained that plaintiff was not entitled to recovery as she did not establish a causal link between decedent's cancer and the dioxin release. Judge Thompson in the Law Division denied cross-motions for summary judgment to enable plaintiff to complete discovery, but indicated that he would grant summary judgment if the proofs remained the same. The judge, in part, reasoned:
It is fundamental that a plaintiff's burden of proof includes a showing that she has suffered an injury proximately caused by defendants' acts or omissions. Germann v. Matris [Matriss], 55 N.J. 193, 205 [260 A.2d 825] (1970). Similarly, plaintiff must present proof to a reasonable degree of medical probability that she has suffered an injury proximately caused by ...