On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication May 27, 1997.
Before Judges Havey, Kestin and Eichen. The opinion of the court was delivered by Havey, P.j.a.d.
The opinion of the court was delivered by: Havey
The opinion of the court was delivered by
In this toxic-tort, failure-to-warn case, plaintiff appeals from summary judgment dismissing her survivorship and wrongful death complaint against defendants Shell Oil Company, Exxon Corporation, Amoco Corporation, CITGO Petroleum Corporation, Chevron U.S.A., Inc., Texaco, Inc., Sun Company, Inc., (Sunoco) and Mobil Oil Corporation (the Shell defendants). She also appeals from separate orders dismissing her complaint against various defendants on procedural grounds. On their cross-appeals, defendants Chevron, Texaco and the Pride defendants challenge separate orders entered in favor of plaintiff.
Plaintiff's husband, decedent Walter James (James) was exposed to benzene-containing petroleum products and other chemical substances during his twenty-six years of employment with Bessemer Processing Company, Inc. (Bessemer). He died of stomach and liver cancer in 1990. In her complaint, plaintiff claims that the Shell defendants sent numerous fifty-five-gallon drums to Bessemer for reconditioning. The drums contained residue of petroleum products manufactured by the Shell defendants. She asserts that defendants jointly and severally failed to warn of the dangerous propensities of the substances, and that James' cancer was caused by his exposure to the products.
In granting summary judgment to all defendants, the motion Judge concluded that plaintiff had failed to establish that James' death by cancer was causally connected to a specific product manufactured by a specific defendant. We reverse the summary judgment order and remand for further proceedings.
We reverse separate orders dismissing plaintiff's complaint on procedural grounds in favor of defendants Daicolor-Pope, Inc., Macarthur Petroleum & Solvent Company, North American Paint Manufacturing Company, Texaco and Chevron. We remand for a hearing to determine whether Chevron and Texaco were prejudiced by plaintiff's untimely service of process upon them. We also reverse the order denying the Pride defendants' motion for summary judgment and remand for a hearing and findings as to whether plaintiff may utilize R. 4:26-4 to assert claims against these newly-identified defendants. We affirm: (1) the order dismissing the complaint against defendant American Cyanamid Company; (2) a protective order limiting the scope of discovery; and (3) the order denying plaintiff's application to amend her complaint to name additional "Amoco" defendants.
Considering plaintiff's evidentiary material submitted in opposition to summary judgment in a light most favorable to her, see Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995), these are the facts.
James worked for twenty-six years with Bessemer at its Newark facility, performing various jobs as a general laborer. Bessemer, a subsidiary of Kingsland Drum and Barrel (Kingsland), is engaged in the reconditioning of used and empty fifty-five-gallon drums for further use by the oil industry. "Closed head" and "open head" drums were sent to Kingsland by various producers of petroleum products. Approximately thirty percent of those drums were sent thereafter to Bessemer for processing. The "open head" drums, which had removable tops and which contained stickier and more viscous residues, were sent to Bessemer because Bessemer was best equipped to remove the residue by incineration and blasting.
The drum reconditioning process first involved emptying of residue from the drums. Although, pursuant to federal regulations, the "empty" drums sent by the oil producers were to have no more than one inch of residue, Bessemer employees stated in depositions that most drums contained as much as four to five gallons of waste material when received at the Bessemer plant. After the drums were "uncapped," the residue was dumped into a "slop hole" which collected beneath a conveyor. During the process, waste material spilled onto the clothing of the workers. Bessemer workers emptied the residue pit twice a month by use of shovels and buckets. James was often involved in the pit cleaning operation.
The uncapped drums were turned upside down and placed in a drag chain conveyor transporting them to a "tunnel incinerator" where the drums' residue was burned and charred by high temperature flames. According to James' co-employees, the fumes from this burning process were "strong and foul" and permeated the incinerator area. The drums were then blasted to remove all of the charred material. This process released dust and fumes into the air to which the Bessemer workers were exposed. After the reconditioning process was completed, the drums were transported back to the oil companies.
During his twenty-six years with Bessemer, James functioned as a "utility man" and "did some of everything that needed to be done," switching from position to position as the operation required. In October 1989, James was diagnosed as having stomach cancer. He died on February 8, 1990; the cause of death was "carcinoma with metastasis to the liver and peritoneum." He was fifty-two years of age at the time of his death.
Kingsland and Bessemer closed down in the early 1990's because of a lack of business. The early business records originating at Bessemer throughout James' employment were "production documents" which indicated the number of drums which had been reconditioned. These documents, however, did not indicate the name of the corporate customer which had provided the drums to Bessemer for reconditioning. All other records, kept at Kingsland, including bills of lading and billing invoices indicating the number of drums picked up from a particular customer, did not reflect the content of the empty drums. According to Kingsland officials, all records were destroyed after being kept for three years.
Additionally, Kingsland had kept material safety data sheets presented by its customers over the years which purportedly gave warnings of and safety instructions on the potential dangers concerning the residue in the empty drums. However, these safety data sheets did not begin arriving at Kingsland until the late 1980's, around the time that James was diagnosed with stomach cancer.
After Kingsland and Bessemer ceased operations, all of the existing records pertinent to this case were destroyed by Kingsland representatives.
Plaintiff first argues that the motion Judge erred in granting summary judgment, since her "proofs met the required elements of a prima facie case against defendants Shell, Exxon, Amoco, CITGO, Chevron, Texaco, Sunoco and Mobil" (the Shell defendants).
The motion Judge based his grant of summary judgment for all defendants on two grounds. First, he determined that "plaintiff's proofs failed to establish this essential element of a product liability action, namely, to identify the particular product which caused the injury." Specifically, he found:
Although plaintiff's expert witnesses, Dr. Mehlman and Dr. Goodman, offered opinions that the cause of Mr. James' death from cancer was, in significant part, due to exposure to carcinogens which they opined were contained in the various chemicals to which decedent was exposed at Bessemer, they were unable to identify the particular products responsible for decedent's condition, the frequency, duration and extent of exposure required or incurred, or the defendants who supplied such products.
Neither of these experts' reports provides a basis to raise a material issue of fact in respect to the causal relationship between any of the defendants and the decedent's condition. Their reports fail to identify the particular product to which the decedent was exposed. Nor do they suggest the frequency, duration and extent of exposure necessary to constitute a significant cause of the cancer condition which led to decedent's death.
To further confound the issue, plaintiff was unable to ascertain which defendants supplied Bessemer, directly or indirectly, with drums containing specific chemical residue. Neither the kind of chemical residue, nor the amount thereof is known. Indeed, the report of Dr. Mehlman supports the Conclusion that the carcinogens referred to are so widespread that there is no basis upon which a jury could conclude that any of the defendants by any view of the facts was responsible in any significant degree for the damages alleged by the plaintiff.
At the outset, it is important to stress that plaintiff focuses only on certain products produced by the Shell defendants in her argument on this point. This restriction is significant because, in our view, the evidentiary material presented by plaintiff is sufficient, at this posture of the case, to sustain a cause of action against those defendants only and not against the others.
The gravamen of plaintiff's case is that the Shell defendants failed to warn James, as a Bessemer employee, of the dangerous propensities of their petroleum products. In any products liability action, a plaintiff must first "demonstrate so-called product-defect causation -- that the defect in the product was a proximate cause of the injury." Coffman v. Keene Corp., 133 N.J. 581, 594, 628 A.2d 710 (1993). Where the alleged defect is a failure to provide warnings, this product-defect causation element requires the plaintiff "to prove that the absence of a warning was a proximate cause of his harm." Ibid. See also Molino v. B.F. Goodrich, Co., 261 N.J. Super. 85, 98, 617 A.2d 1235 (App. Div. 1992), certif. denied, 134 N.J. 482 (1993).
The motion Judge did not rest his dismissal of plaintiff's complaint on this "product-defect causation" element, perhaps because plaintiff appears to have provided prima facie proof of that element. A plaintiff need present only "a very low threshold of proof in order to impute to a manufacturer sufficient knowledge to trigger the duty to provide a warning of the harmful effects of its product." Coffman, (supra) , 133 N.J. at 599. To trigger the duty to warn, a plaintiff must show merely that "knowledge of the defect existed within the relevant industry." Ibid.
Here, plaintiff's expert in toxicology, Dr. Myron Mehlman, states that decades-old epidemiological studies had revealed a causative link between death from cancer and exposure to benzene and polycyclic aromatic hydrocarbons (PAHs) found in gasoline and petroleum products. He cites several studies dating back to 1928, including a 1948 report from the American Petroleum Institute, indicating that exposure to benzene was a serious health concern.
Plaintiff also provided proof that explicit warnings concerning the health dangers of residues contained in empty drums were not given to Bessemer until the late 1980's. Bessemer's environmental officer, Glenn Richard, testified at depositions that the safety information contained on the drum labels received by Bessemer increased over his eight-year career with Bessemer from 1984 to 1992, as governmental regulations required more and more disclosure. However, he acknowledged that the drum labels did not at any point in time contain as much health-related information as was present on the material safety data sheets that Richard requested and received during the late 1980's.
According to Eddie Kennedy, a Bessemer employee since 1960, prior to OSHA's *fn2 involvement drum labels indicated only the name of the company that sent the drum. After OSHA's intervention, Bessemer's customers applied labels to the drums indicating their content and possible health hazards associated with those contents.
In our view, all of this evidence established at least a fact question concerning the Shell defendants' duty to warn of the dangers of benzene, PAHs and other chemicals contained in the drums. Thus, there was a prima facie showing that the duty to warn had been breached by the Shell defendants during the period of James' working life.
In addition to product-defect causation, a plaintiff in products-liability litigation must demonstrate that his or her injuries "were proximately caused by exposure to defendant's . . . product." *fn3 Coffman, (supra) , 133 N.J. at 594. This is known as medical causation. See Becker v. Baron Bros., 138 N.J. 145, 152, 649 A.2d 613 (1994); Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 30-31, 568 A.2d 1196 (App. Div. 1994). To prove "medical causation," plaintiff must show "that the exposure was a substantial factor in causing or exacerbating the disease" or physical injury. Sholtis, (supra) , 238 N.J. Super. at 30-31. In other words, "a plaintiff must demonstrate exposure to a defendant's product and biological processes from the exposure which result in disease." Lineaweaver v. Plant Insulation Co., 31 Cal. App. 4th 1409, 37 Cal. Rptr. 2d 902, 906 (Ct. App. 1995); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986); see also Restatement (Second) of Torts, § 431 (1965).
Here, plaintiff argues that she established a prima facie case of "medical causation" by satisfying the "frequency, regularity and proximity" test pronounced by us in Sholtis. There, we held that, to prove that exposure to a particular asbestos product was a substantial factor in causing the workers' asbestos disease, plaintiffs must prove "an exposure of sufficient frequency, with a regularity of contact, and with the product in close proximity" to the plaintiff. Sholtis, (supra) , 238 N.J. Super. at 28, 31. See also Coffman v. Keene Corp., 257 N.J. Super. 279, 291-92, 608 A.2d 416 (App. Div. 1992), aff'd, 133 N.J. 581, 628 A.2d 710 (1993). It is not sufficient for plaintiff to have shown that the product was merely supplied to the workplace by the named defendants. Goss v. American Cyanamid, Co., 278 N.J. Super. 227, 236, 650 A.2d 1001 (App. Div. 1994); Lohrmann, (supra) , 782F.2d at 1162. It must also be demonstrated that plaintiff was exposed to those products frequently, on a regular basis, and with sufficient proximity so as "to demonstrate the requisite causal connection between the exposure" and the disease plaintiff suffered. Goss, (supra) , 278 N.J. Super. at 236-37. See also Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 315-19, 689 A.2d 757 (App. Div. 1997) and cases cited therein. A plaintiff's satisfaction of this "frequency, regularity, and proximity" test serves to demonstrate that the plaintiff was more than just casually or minimally exposed to a defendant's toxic product. Sholtis, (supra) , 238 N.J. Super. at 28-29. Satisfaction of the test indicates "sufficiently intense exposure." Id. at 29. Of course, to complete the proof of medical causation of disease or physical injury, the plaintiff must provide "competent evidence, usually supplied by expert proof, establishing a nexus between the exposure and plaintiff's condition . . . ." Id. at 31.
Sholtis involved employee exposure to friable asbestos fibers. Thus, Sholtis might be read as limiting the "frequency, regularity and proximity" test to cases involving exposure to asbestos because of the cumulative nature of the effects of that exposure. Id. at 29-30.
Nevertheless, at least for summary judgment purposes, we are convinced that the Sholtis analysis is relevant to the "medical causation" issue in a toxic-tort case, such as this, involving occupational exposure to cancer-causing substances manufactured by a determinant number of defendants, all of whom, it is alleged, ...