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Rubanick v. Witco Chemical Corp.

Decided: June 1, 1990.

PATRICIA RUBANICK, EXECUTRIX OF THE ESTATE OF RONALD G. RUBANICK, AND PATRICIA RUBANICK, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR DAMIEN RUBANICK AND RONALD C. RUBANICK, INFANTS, PLAINTIFFS-APPELLANTS,
v.
WITCO CHEMICAL CORP., DEFENDANT, AND MONSANTO CO., DEFENDANT-RESPONDENT. OMBRA DEMAIO, EXECUTRIX OF THE ESTATE OF ANTHONY DEMAIO AND OMBRA DEMAIO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, V. WITCO CHEMICAL CORP., DEFENDANT, AND MONSANTO CO., DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Middlesex County, whose decision is in part reported at 225 N.J. Super. 485 (Law Div. 1988).

Petrella, Havey and Stern. The opinion of the court was delivered by Petrella, P.J.A.D. Stern, J.A.D., concurring. Havey, J.A.D., dissenting.

Petrella

[242 NJSuper Page 39] In these toxic tort cases, consolidated for purposes of this appeal, plaintiffs appeal from orders for summary judgment which dismissed their respective wrongful death actions against defendant Monsanto Company. Plaintiffs' respective decedents, Ronald G. Rubanick and Anthony DeMaio, had been employed at the Witco Chemical*fn1 plant in Perth Amboy during a period when the Witco plant had polychlorinated biphenyl

(PCB) contamination. The PCBs had been sold to Witco by Monsanto starting in 1969. Plaintiffs alleged in their complaints that their decedents' exposure to the PCBs caused decedents' colon cancers and ultimate untimely deaths.

Immediately before the start of the Rubanick trial, peremptorily scheduled for September 8, 1987, Monsanto moved for an Evidence Rule 8 hearing to challenge the qualifications and competence of plaintiffs' expert in that case, Dr. Earl Balis, a Ph.D. biochemist with primary research responsibilities. Dr. Balis was also listed as the plaintiffs' proposed expert in the DeMaio matter. After a three day in limine hearing conducted on September 9, 10 and 14, 1987, Judge Hamlin, in an opinion reported as Rubanick v. Witco Chemical Corp., 225 N.J. Super. 485, 542 A.2d 975 (Law Div.1988), concluded that while Dr. Balis may offer an opinion as to human carcinogenesis generally, he was not qualified to testify as to specific causation in individual humans because he lacked the requisite education, training and experience in treating cancer patients. Id. at 493-495, 542 A.2d 975.

Judge Hamlin also excluded the testimony because Dr. Balis had offered a "novel scientific opinion" as to causation which had not been accepted by at least a "substantial minority of the applicable scientific community." Id. at 495-503, 542 A.2d 975. Upon exclusion of Dr. Balis' testimony, Monsanto subsequently moved for summary judgment to dismiss both the Rubanick and DeMaio complaints, reasoning that in neither action could the plaintiffs establish a prima facie case without Dr. Balis' testimony. Judge Hamlin agreed and dismissed both complaints. Plaintiffs then appealed.

We agree with that part of the trial judge's opinion which concludes that the expert witness proffered by the plaintiffs in these consolidated cases may express his opinion as to human carcinogenesis. We reverse the judge's conclusion that Dr. Balis may not testify as to specific causation in individual humans and remand for trial.

Although we do not necessarily agree with the motion judge's opinion about the need for a "substantial minority"*fn2 view for the opinion expressed by the expert, we conclude that in the field of causation of cancers novel opinions may be expressed by nonmedical expert testimony, if based on adequate education, training, or experience of the witness, unless the opinion proffered would be either illogical, outlandish or totally speculative such that no reasonable jury could accept the opinion. Dr. Balis' proffered opinion in this case would thus be admissible. We hasten to add that Dr. Balis had testified that the general concept that PCBs are carcinogenic and that they could either cause cancer directly or by promoting cancer was neither created by him nor a unique theory.

The facts developed at the hearing were that Monsanto had sold Witco PCB fluids, under the trade name Therminal, beginning in 1969, but discontinued shipments some time prior to 1976. Rubanick, supra, 225 N.J. Super. at 497, 542 A.2d 975. Therminal is a product name for the PCB compound Arochlor, and during the applicable period Monsanto shipped Arochlor 1242 and 1248, which was said to contain 42% and 48% chlorination respectively. Ibid.

Ronald Rubanick worked at Witco from 1974 through 1979, when he was diagnosed as suffering from colon cancer. He was a non-smoker with no family history of cancer. Rubanick died of the cancer on July 23, 1980, at the age of 29. About two and one-half years after Rubanick's death, Anthony DeMaio, a thirty year Witco employee, was also diagnosed as suffering from colon cancer. He died of the cancer on June 29, 1984, at the age of 52.

For purposes of the in limine hearing, Judge Hamlin accepted the fact that Rubanick, while working for Witco, had walked

through an area in the work place which had a high degree of PCB contamination "primarily in the earth." Ibid. In his testimony Balis summarized the information given to him about the quantity of PCBs to which Rubanick had been exposed in the following terms:

At the in limine hearing Monsanto presented its three experts first. It produced Dr. Thomas Fahey,*fn3 a board certified internist, with experience in the diagnosis and treatment of colon cancer; Dr. Raymond Harbison, a Ph.D. toxicologist who had knowledge and experience with human exposures to PCBs; and Dr. Philip Cole, an epidemiologist, with a M.D. and a Ph.D. who indicated he was conversant with the medical and epidemiological literature as to cancer causation and PCB exposure. Id. at 490-491, 542 A.2d 975. Each of these experts testified that they were aware of no "statistically significant" study which had concluded that PCBs cause cancer, and particularly colon cancer, in human beings. Dr. Harbison declined to recognize the International Agency for Research of Cancer (I.A.R.C.) as a valid scientific authority. Id. at 491, 542 A.2d 975. Dr. Cole does not recognize I.A.R.C.*fn4 as completely authoritative in

human cancer causation. Ibid. Their qualifications were challenged not by cross-examination, but by the testimony of Dr. Balis, which was largely elicited as rebuttal testimony.

Dr. Balis has a Ph.D. and worked as a biochemist for the Sloan-Kettering Institute for Cancer Research for over 37 years, specializing in cancer research. He was head of a research group which was primarily concerned with investigating the cause, treatment and diagnosis of colon cancer, and has published extensively on the topic of carcinogenesis. Some of his extensive qualifications are referred to in the published opinion of the trial judge. Id. at 492, 542 A.2d 975.

Balis' opinion that PCB contamination at Witco caused Rubanick's cancer was essentially based on four factors: (1) the extreme rarity of colon cancer in males under the age of 30, particularly when the male is a non-smoker and not from a "cancer family";*fn5 (2) the fact that 5 out of 105 employees at Witco suffered some type of cancer during the pertinent period; (3) "a very large body of evidence" showing that PCBs produced cancer in experimental animals, and (4) the fact that there is not only a variance of the types of cancers in a PCB exposed population, but as he described them -- "unusual cancers." The witness cited various publications, including 13 studies of the effect of PCBs on animals and humans in support of his opinion, with particular emphasis on an epidemiological study by Bertazzi, Riboldi, Pesatori, Radice & Zocchetti, "Cancer Mortality of Capacitor Manufacturing Workers," 11 Amer.J.Indus.Med. 165 (1987).

Balis testified, referring to the Bertazzi study and what happened at the Witco site:

. . . one can extrapolate based upon the federal government rules that if a compound is found to cause cancer in experimental animals it's presumed to be carcinogenic to man and it is banned, and secondly, the statistical data indicating in two cases groups of people who were exposed to P.C.B. came down with amounts of cancer where, which were so huge statistically that they cannot be attributed to chance.

In rejecting Dr. Balis' theory of causation, Judge Hamlin considered it "novel" and relied on Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 522 A.2d 405 (1987). He considered "general acceptance" to be acceptance by a substantial minority of the applicable scientific community. Rubanick, supra, 225 N.J. Super. at 500, 542 A.2d 975. Although Judge Hamlin did not spell out what the "applicable" scientific community was he reasoned:

Logic and policy dictate such a construction. If admissibility (as opposed to jury fact finding) were limited only to majority scientific opinions then admissibility would be a simple issue of arithmetic. By opening jury consideration to expert opinions embraced by a substantial minority scientific acceptance, there will be a testing in the advocacy arena of new ideas without prejudicing a party opposing the disfavored or novel principle. [ Ibid. ]

The question here is not the acceptance of the "general acceptance" standard but whether there are sufficient factual and scientific underpinnings to the expert's causation theory, recognizing that in experimentation and study of known or suspected cancer causing agents as a rule they are not intentionally administered to humans because of the risks involved. In other words, experiments in the field are not, as far as we know, performed directly on humans in order to see if cancer will result.

Windmere, Inc. v. International Ins. Co., supra, 105 N.J. 373, 522 A.2d 405, does not preclude the type of proffered testimony involved here. The Supreme Court in Windmere observed that in the trial there the testimony of the experts concerned the reliability of a scientific device for voice print analysis and that the proffered experts had very limited experience on the subject. Moreover, although the court recognized that no general acceptance within the professional community of voice print analysis had been established, the admission of

the voice prints into evidence had not constituted prejudicial error. The Court affirmed the verdict in favor of the defendant insurer. The use of voice prints was acknowledged to be highly debated and that this type of evidence was not yet found to be of sufficient stature to validate the equipment used and the results obtained as had been the case with the breathalyzer, Romano v. Kimmelman, 96 N.J. 66, 78, 474 A.2d 1 (1984); and radar equipment, State v. Dantonio, 18 N.J. 570, 115 A.2d 35 (1955).

When Windmere discussed the "required reliability in terms of its general acceptance within the professional community" it was talking about the required reliability of a device or machine, i.e., the voice print machine. 105 N.J. at 379, 522 A.2d 405. Windmere does not necessarily preclude novel opinions or testimony by the first proponent of any particular theory. It recites various ways in which reliability may be established.

There must also be a factual and scientific basis for an expert's opinion. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981). The Supreme Court in Windmere was not concerned "with the qualifications of the experts but with the limited breadth of their experience and their potential bias." In any event, there is a difference between considering the reliability of a device and medical opinion as to the cause of cancer when the human body is exposed to known or suspected toxic or carcinogenic substances. It has been widely considered that PCBs are a carcinogenic substance. See Winter, "Cancer-Causing Agents -- A Preventive Guide," 156 (1979) (discussion of PCBs "Polyclorinated Biphenyls"). Bertazzi, supra "Cancer Mortality of Capacitor Mfg. Workers," 11 Am.J.Indus.Med. 165-176 (1987) (possibility of PCBs posing a carcinogenic risk to humans); Gustavson, Hogstedt & Rappe, "Short-Term Mortality and Cancer Incidence in Capacitor Mfg. Workers Exposed to Polychlorinated Biphenyls (PCBs)," 10 Am.J.Indus.Med. 341-344 (1986) (cannot rule out possibility of a carcinogenic risk from PCB exposure).

It appears that it is an improper focus to say that a known carcinogen*fn6 attacks only a particular target or targets in the body. For instance, although cigarette smoking has been widely discussed as a cause for lung cancer, the lung and pulmonary tract are not the only areas in the body that may be subjected to harm by cigarette smoking. See Sweeting, "A Values Approach to Health Behavior," 124 (1990); Winter, "Cancer-Causing Agents," 187-188 (1979). Nor should the fact that other cases have involved instances where other types of cancer, for instance cancer of the liver, biliary tract and gall bladder, as potentially causally associated with exposure to PCBs, mean that testimony of the cancer causing propensity of exposures to PCBs should be limited to cases involving only such organ specific cancers.*fn7

Part of the problem arises in this case because of the fact that an in limine hearing was held at which testimony was taken. We have previously expressed our reservations about the increased frequency of in limine hearings on evidence matters. See Bellardini v. Krikorian, 222 N.J. Super. 457, 464, 537 A.2d 700 (App.Div.1988). There is no doubt that if objections to the expert's qualifications occurred at trial a Rule 8 hearing could have been held. See Windmere, Inc. v. International Ins. Co., supra, 105 N.J. at 381, 522 A.2d 405. However, the difficulty presented here is that this in limine hearing was extensive and was more than an Evidence Rule 8 hearing on an expert's qualifications. It forced the trial judge

to become not only the determiner of the expert qualifications of the witness and the existence of a scientific basis for his opinion (which appears to us sufficiently established to result in a jury question), but to become a fact-finder. The judge had to choose between conflicting testimony of experts and substituted himself for the jury's function on the ultimate issue. This is clear from the three days of testimony in an adversary-type proceeding in which Monsanto actually presented the testimony of its three witnesses first and sought to carry the burden of defending against plaintiffs' expert's testimony before he even got in the witness stand. The judge had stated:

The burden of proof to proceed and to demonstrate by the preponderance of the evidence that Dr. Balis' testimony or proffered testimony would not be proper is upon Monsanto. Therefore, they have the duty of going forward, and the duty of persuading me by the evidence that indeed his testimony should not be admitted as expert testimony for the jury.

Monsanto's attorney disagreed that they had the burden of proof at this hearing, and the judge rephrased his statement so that Monsanto had "the duty of going forward to convince me [that plaintiff's expert's testimony] has not reached that level" of admissibility.

The potential confusion between an Evidence Rule 8 hearing and a trial is emphasized when the trial judge pointed out in his opinion that Balis "has previously served on a research team with Dr. Nancy Kemeny, Rubanick's treating physician at Sloan-Kettering. Dr. Kemeny was not offered as a witness in this case." 225 N.J. Super. at 492, 542 A.2d 975.

Indeed, the trial judge here recognized that he was deviating from the usual and preferred practice, in part because both sides urged him to do so. He said:

It is generally my custom where challenges of such nature are made, to consider them only when the expert is offered in the context of a trial after a jury has been selected generally because this is [a] fuller and more complete factual record upon which to judge the expert's opinion, rather than a vacuum.

Dr. Balis qualifies by definition as an expert.*fn8 He is a person who by knowledge, training or experience is deemed qualified to testify and express his opinion on cancer development and related scientific matters even if that opinion includes medical subjects. See Sanzari v. Rosenfeld, 34 N.J. 128, 135, 167 A.2d 625 (1961). See also Hake v. Manchester Tp., 98 N.J. 302, 306, 486 A.2d 836 (1985); Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 327-334, 492 A.2d 371 (1985); Ayers v. Jackson Tp., 202 N.J. Super. 106, 124, 493 A.2d 1314 (App.Div.1985), mod. on other grounds 106 N.J. 557, 525 A.2d 287 (1987). Deficiencies in the qualification of an expert is a matter to be weighed by the jury. Sanzari v. Rosenfeld, supra, 34 N.J. at 138, 167 A.2d 625; Carbone v. Warburton, 11 N.J. 418, 426, 94 A.2d 680 (1953).*fn9

It is for the jury to determine the credibility, weight and probative value of the expert's testimony, Savoia v. F.W. Woolworth Co., 88 N.J. Super. 153, 162, 211 A.2d 214 (App.Div.1965); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86, 168 A.2d 423 (App.Div.1961), and the opinion of an expert can rise no higher than the facts and reasoning upon which it is based. Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984). The jury should, as is usually done, be instructed that it is not bound by any expert's opinion, but it is to consider it and give it the weight to which it deems it is entitled, whether that be great or slight, by weighing the

reasons, if any, given for it. The jury is also usually informed that it may reject an expert's opinion, if in its judgment the reasons given for it are unsound, the facts do not exist, or it is not based on knowledge and experience. Polyard v. Terry, 160 N.J. Super. 497, 511, 390 A.2d 653 (App.Div.1978), aff'd o.b. 79 N.J. 547, 401 A.2d 532 (1979); Mohr v. B.F. Goodrich Rubber Co., 147 N.J. Super. 279, 284, 371 A.2d 288 (App.Div.1977), certif. den. 74 N.J. 281, 377 A.2d 685 (1977). It is elementary that it is always within the personal function of the jury to decide whether the facts on which the answer of an expert is based actually exist, and the value or weight of an expert's opinion is dependent upon and no stronger than the facts on which it is predicated. Johnson v. Salem Corp., supra, 97 N.J. at 91, 477 A.2d 1246; Polyard v. Terry, supra, 160 N.J. Super. at 511, 390 A.2d 653.

A "net opinion," which is an expert's opinion unsupported by factual evidence, is inadmissible. Matter of Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184 (1989); Buckelew v. Grossbard, supra, 87 N.J. at 524, 435 A.2d 1150; Jakubowski v. Minnesota Mining & Mfg., 42 N.J. 177, 187, 199 A.2d 826 (1964); Johnson v. Salem Corp., supra; cf. Pearson v. St. Paul, 220 N.J. Super. 110, 116, 531 A.2d 744 (App.Div.1987). This need for supporting data and a factual basis for the expert's opinion is especially important when the opinion is seeking to establish a cause and effect relationship. Tabatchnick v. G.D. Searle & Co., 67 F.R.D. 49, 55 (D.N.J.1975). However, the rule frequently focuses, as in Parker v. Goldstein, 78 N.J. Super. 472, 483-484, 189 A.2d 441 (App.Div.1963), certif. den. 40 N.J. 225, 191 A.2d 63 (1963), on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom. See Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 144-145, 72 A.2d 204 (1950); Castroll v. Franklin Tp., 161 N.J. Super. 190, 193, 391 A.2d 544 (App.Div.1978). See also Sabloff v. Yamaha Motor Co., Inc., Ltd., 113 N.J. Super. 279, 280,

273 A.2d 606 (App.Div.1971), aff'd 59 N.J. 365, 283 A.2d 321 (1971).

Indeed, even if the testimony of an expert is uncontradicted, it is still for the jury to exercise its independent judgment in considering the matter. Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 640, 524 A.2d 841 (App.Div.1987), certif. den. 107 N.J. 148, 526 A.2d 209 (1987); Middlesex County v. Clearwater Village, Inc., 163 N.J. Super. 166, 174, 394 A.2d 390 (App.Div.1978), certif. den. 79 N.J. ...


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