Before Judges Baime, Wefing and Braithwaite.
The opinion of the court was delivered by: Baime, P.j.a.d.,
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Plaintiffs Ella McAdams-Smith and Fred Harris brought this action to recover damages for injuries sustained as a result of their exposure to sulfur dioxide (SO2) and hydrogen sulfide (H2S) which were allegedly emitted by a chemical facility owned and operated by defendant Peridot Chemical, Inc. (Peridot). Following a protracted trial, a jury found that defendant was negligent and awarded plaintiffs approximately two million dollars. Defendant appeals. We affirm but remand the matter to the Law Division for recalculation of post-judgment interest.
Plaintiffs were employed by Hoechst-Celanese as chemical operators responsible for loading and unloading petrochemicals to and from trucks, rail cars and ships. At approximately 8:30 a.m. on September 9, 1991, Smith was working on an elevated platform located a short distance from the boundary line fence separating her employer's facility from defendant's plant. Although her memory of the precise events was somewhat unclear, Smith recalled that she was loading a tank truck with formaldehyde or glycol, when she was suddenly overcome by the odor of "rotten eggs." Harris, who was working some distance away, noticed the same odor and, upon observing Smith in distress, immediately called for assistance using a "walkie talkie."
Smith was transported by ambulance to a nearby hospital where she received emergency room treatment. She was discharged later the same day. Over the ensuing months, Smith developed persistent headaches, dizziness, nausea and diarrhea. She also began to suffer lengthy spells of coughing marked by a sensation that her throat was closing. During this period, plaintiff was treated with oral steroids and bronchodilators. Her condition was diagnosed as "bronchitis due to sulfur dioxide and hyperactive airways." Although she continued to experience these symptoms, Smith ultimately felt her condition was improving and thus returned to work.
A second incident occurred shortly before noon on July 7, 1992. Smith and Harris were unloading butylene glycol, an odorless and essentially harmless chemical, from a tank car when Smith suddenly smelled and tasted "rotten eggs." Harris was at the top of the car when he heard Smith scream, "they are releasing this stuff." Initially, Harris was unable to smell anything unusual, but when he "turned [his] head toward" defendant's plant he too experienced the sensation of "smell[ing] and tast[ing] . . . rotten egg[s]." Harris recalled that the odor of the substances "took [his] breath away." Despite his own distress, Harris noticed Smith "staggering" about "like a drunk person." Upon reaching Smith, Harris observed that her "eyes [had rolled] back in[to] her head" and she was "gasp[ing] for air." Other workers in the area came to the rescue and evacuated Smith and Harris from the work site.
Harris and Smith were taken by ambulance to separate hospitals. Smith was admitted to the intensive care unit, where she was maintained on a respirator for several days. Her admitting diagnosis was "sulfur dioxide inhalation." Pulmonary studies disclosed marked airway obstruction and impaired diffusing capacity. Lung examinations revealed "inspiratory crackles" indicative of alveoli damage. Smith was discharged nine days after her admission with a diagnosis of "sulfur dioxide inhalation." Within weeks of her discharge, Smith's hair fell out in large patches or "chunks."
Harris was admitted with complaints of upper and lower respiratory symptoms and neurologic sequelae such as general weakness and dizziness. The admitting diagnosis was "severe fume inhalation." Harris was treated with oxygen, steroids and bronchodilators. He was released after an eleven day confinement, but was readmitted shortly thereafter with complaints of respiratory distress. The principal diagnosis upon readmission was "occupational asthma, upper airway edema secondary to sulfur dioxide, diabetes mellitus, chemical conjunctivitis" and "hypertension." Harris was discharged seven days after his readmission.
The principal question presented at trial concerned the origin or source of the noxious fumes that caused injury to the plaintiffs. Plaintiffs contended that chemical processes at defendant's plant caused sulfur dioxide and hydrogen sulfide to be released in an airborne state. They asserted that these noxious gases migrated to their work site directly south of defendant's facility. Defendant claimed that the sulfur dioxide produced by chemical reactions at its plant were recaptured by its internal system and could not have migrated to plaintiffs' work stations at the neighboring Hoechst-Celanese plant. Defendant further contended that its facility did not have the capacity to produce hydrogen sulfide, and that the injuries sustained must have resulted from other sources including perhaps plaintiffs' failure to exercise reasonable care while loading or unloading chemicals at their work site. Much of the evidence presented at trial thus focused upon the operational procedures and chemical processes utilized by defendant and neighboring facilities.
The accidents occurred in a heavily industrial section of Newark situated along the banks of the Passaic River. Hoechst- Celanese operated a huge chemical plant at its Newark terminal. Plaintiffs' work site, known as the "east farm," was located on the east side of Doremus Avenue immediately south of the Peridot facility. While Hoechst-Celanese distributed a variety of petrochemicals and manufactured formaldehyde in various forms, none of its chemicals included sulfur or was sulfur-based. Moreover, none of those chemicals smelled like sulfur. Sulfur dioxide presents a pungent sulfur smell akin to the odor of a burnt match. Hydrogen sulfide smells like "rotten eggs." Plaintiffs' evidence indicated that no such odors emanated from any process carried on at the Hoechst-Celanese facility.
Reichold Chemicals, Inc. is located directly to the south of the Hoechst-Celanese facility. Reichold Chemicals never produced or manufactured sulfur-based products at its Newark plant. By defendant's own account, Reichold Chemicals was never the source of sulfur-like odors. The record contains nothing to suggest that Reichold Chemicals was the source of the noxious fumes that caused plaintiffs' injuries.
Quantum Chemical Company is located directly to the north of defendant's plant. Uncontradicted evidence disclosed that Quantum Chemical did not produce sulfur products. Nor was Quantum Chemical the source of pungent sulfur odors. Additional evidence was presented indicating that no facility upwind of defendant's plant was a likely or even remotely suspected source of sulfur gases. Moreover, no source or facility northwest of Peridot originated sulfur-like odors.
In contrast, defendant was engaged in the business of manufacturing, processing, shipping and storing sulfur-based chemicals. The five basic chemicals produced at defendant's Newark facility were sulfuric acid, liquid sulfuric oxide, ultra high purity sulfuric acid, aluminum sulfate and magnesium oxide. Virtually all of defendant's processes involved sulfur-based chemicals.
Defendant generated magnesium oxide for Philadelphia Electric Company. Production of magnesium oxide (MgO) was conducted in the MgO regeneration unit on the east side of Doremus Avenue. The MgO unit was situated nearest to the south-side fence or boundary of defendant's facility, directly adjacent to the Hoechst-Celanese east farm. Defendant's MgO unit is an irregular assemblage of structures and equipment. The unit was designed to recycle magnesium sulfite (MgSO3) to yield magnesium oxide for reuse by Philadelphia Electric as a stack scrubbant. The magnesium sulfite, in the form of fine powder, was trucked to the MgO plant. It was then air-blown with special equipment into silos, and then placed in a large pre-heated brick-lined vessel known as a calciner where it was subjected to extremely high temperatures and converted into sulfur dioxide in gaseous form and magnesium oxide in powder form. Those substances then followed an elaborate route through additional equipment. The sulfur dioxide exited the system through an interface valve into an on-site sulfuric acid plant where it contributed to the production of marketable sulfuric acid. The magnesium oxide was processed into a silo and later transported to Philadelphia Electric's facility. When the MgO unit was operating steadily, "more than 8,000 pounds of sulfur dioxide" could be processed in one hour. In just six minutes, the unit could produce 250 pounds of sulfur dioxide.
The MgO plant had several valves or pressure release points through which emissions could be released into the atmosphere. We need not describe in detail the mechanical design of the various valves, release points and stacks. Suffice it to say that six atmospheric outlets or emission points were clustered at a location directly upwind of Hoechst-Celanese's east farm.
According to testimony presented by defendant's plant manager, there had never been an occasion when the safety relief valves opened because of over-pressure during operations. Moreover, when the system was not working, it would be purged of existing processed gases by three giant blowers or movers, thereby routing such gases into the on-site sulfuric acid plant.
It was nevertheless possible that sulfur dioxide could escape into the atmosphere. The six emission points could release sulfur dioxide gases in situations in which the MgO unit was not running in a steady state. The "start-up" system, for example, required that the equipment be heated before the magnesium sulfite was routed into the calciner. If the system had not been purged of sulfur dioxide before its last shut-down, the start-up process itself would cause the existing sulfur dioxide in the pipes to be exhausted into the atmosphere. Specifically, the various blowers or fans could cause trapped gases to be released from the south stack. But even if the system had been purged prior to start-up, the blowers could not possibly rid all of the pipes and ancillary equipment of all trapped sulfur dioxide. Defendant's plant manager candidly conceded that "purging [was] never perfect [and that there were] always dead spots, bypass zones and dead-ended [areas] in which residuals" would remain.
The six emission points could also release sulfur dioxide gases in situations in which the MgO plant was running in a steady state. It was theoretically possible that the pressure relief valves could exhaust sulfur dioxide in the event of "over-pressure." Further, while the MgO unit was running at a steady state, sulfur dioxide could be emitted through leaky start-up valves or gaskets at the foot of the start-up stacks or through the pressure relief valves.
It is against this backdrop that we describe the operations of the MgO unit at or near the time of the two accidents. Prior to the September 9, 1991 incident, the MgO plant had been shut down. All witnesses agreed that "a cold start-up took place over a period of two or three days" before the accident. Defendant's employees were under instructions to start feeding magnesium sulfite into the calciner as soon as the appropriate temperature was reached. Log sheets indicated that sometime between 7:00 a.m. and 9:00 a.m. the operators had managed to establish a suitable temperature in the calciner. Additional entries confirmed that all three blowers were operating. Defendant's "MgO feed clock," the device that measures the quantity of magnesium sulfite fed into the calciner, indicated that the "feed" had commenced by this time.
Evidence was presented suggesting that at approximately the time the accident occurred, the MgO unit operators were experiencing difficulty in closing a start-up stack. The log sheets contained a notation indicating that defendant's lead operator, Thomas Busby, was attempting to "fix" sticky gas booster fan vanes that had been stuck in their open positions since the prior day. As we understand it, these "vanes" consisted of louvers that, when open, could allow a volume of processed gases to be "jetted downstream." Although other entries in the logbook did not disclose any particular problem or "overpressurization," after 9:00 a.m. the super-heated temperature in the calciner was allowed to drift downward. The MgO unit was not fully restarted to operations until 5:00 p.m.
At approximately 8:00 a.m., several Hoechst-Celanese employees detected pungent sulphur odors downwind of the atmospheric outlets of the MgO unit. One worker, Val Dziuba, complained of an odor coming from Peridot. The smell was described as "like [the odor] when [a] match is ignited." Other workers and truckers indicated that they smelled a pungent sulphur odor at about the same time. Evidence presented indicated that although the winds were light, they were coming from north to south.
The circumstances relating to operation of the MgO unit on July 7, 1992 are shrouded in mystery. Defendant's main control logs disclosed no significant entries for systems usually monitored for operations. Hourly readings were not recorded that day between 8:00 a.m. and 2:00 p.m. for "critical sections of the main control room log sheets concerning pressures, flows, gas compositions, amp readings [and] temperatures." Moreover, most of the entries between 2:00 p.m. and 3:00 p.m. were made in pencil rather than pen.
The record indicates that the MgO unit's operators had experienced problems earlier that morning, and had reported difficulties in the acid plant, which received sulfur dioxide through the interface valve. At 7:45 a.m. the acid plant reportedly shut down. It was reported that the "big blue baby," the system gate valve located downstream of the wet electrostatic precipitator, had closed at 8:15 a.m. Although the testimony concerning the subject can fairly be characterized as arcane and hypertechnical, the record suggests that with the "big blue baby" in a closed state, a potential existed for "deadended" gases to be emitted from the "south start-up stack" if blowers upstream of the gate were placed in operation.
At approximately 8:00 a.m., the acid plant became operational. A "hot start-up" commenced at noon. In a hot start-up, the calciner has not substantially cooled and there is thus no need for an extended period to elapse in order to raise its temperature. Instead, the "back end" of the system is heated, the interface valve is opened and trapped gases flow into the acid plant. At 1:15 p.m., the feed was started again. It was undisputed that the wind was blowing from a northerly direction at the time of the second incident. Like the earlier September incident, numerous Hoechst-Celanese employees detected pungent sulfur odors at the time of the second accident.
Much of the evidence presented consisted of expert testimony. Plaintiffs' chemical engineering expert, Dr. Burton Davidson, testified that both sulfur dioxide and hydrogen sulfide are highly toxic substances. He theorized that a single fixed point 22.7 pound puff release of a combination of sulfur dioxide and hydrogen sulfide from one of the three vents or valves at the south start-up stack of defendant's MgO unit was the likely cause of both accidents. Davidson scaled the magnitude of the release in terms of a symbolic twelve foot diameter globe, using universal principles of ideal gas law. Based upon the MgO unit's log book entries, his study of the facility's operations and wind directions prevalent at the time of the incident, Davidson thought it highly probable that on both dates such a bubble was released, containing between eight to thirteen percent sulfur dioxide, and between three-tenths of a percent and three percent hydrogen sulfide and that the emission migrated to the area in which plaintiffs were working. The witness explained that the puff release immediately began wafting and spreading in the turbulent eddy fields, taking a tortuous path from north to south. Davidson cautioned that he was not suggesting the "center of this sphere contacted the breathing zones" of the plaintiffs, but that "a portion of that ball or a trace of it" meandered to their work site. The witness testified that the gaseous emission would not necessarily have been detected by monitors in place at the time of the second accident, noting that the puff release was "affected by rear field turbulen[ce]" which caused the gases to "loop" over the buildings "before it came to ground level" at the east farm of the Hoechst-Celanese plant.
Davidson determined that both accidents could have been avoided had defendant installed a "scrubber system" or "feed-forward sensors." As explained by the witness, a "scrubber" is an arrangement of equipment and processes designed to capture discharged process gases and strip them of their hazardous properties. Such a system "would have chemically neutralized [the] captured gases before they enter[ed] the environment." According to Davidson, raising the stack height as defendant had done in the interval between the two accidents was insufficient to alleviate the danger.
Davidson concluded that in the absence of a scrubber system, defendant should have installed "an early warning system" so that those in the field of an advancing release could be evacuated. The witness asserted that all of Peridot's emission points should have been channeled or funneled to a single location at which forward sensors should have been installed. According to Davidson, the proper placing of such monitors would not be at the "fence line" separating defendant's plant from the Hoechst-Celanese facility. The fence line monitors that defendant had installed in the period between the two accidents were considered the "least desirable mode." Davidson opined that, instead, the sensors should have been placed at the foot of the inside of the stacks to detect discharges at their inception. The witness added that such sensors could be equipped with cascading alarms to alert personnel and permit rapid evacuation.
As we noted earlier, defendant denied that its MgO unit was capable of producing hydrogen sulfide. However, plaintiffs presented Dr. Jeffrey Schwartz, a Princeton University chemistry professor, who testified to the contrary. Dr. Schwartz concluded it was a scientific certainty that defendant's MgO unit produced gases containing hydrogen sulfide, downstream of the calciner. According to the witness, the process gases produced at the plant had a hydrogen sulfide content "in the range of about three-tenths to three percent, or in the order of 3,000 to 30,000 parts per million." Schwartz added that because of the toxicity of hydrogen sulfide, even 2,600 parts per million, or about one- quarter of one percent, presented an acute danger. Much of Schwartz's testimony concerning the chemical reactions that took place in the recycling of magnesium oxide was extremely technical, and we describe only the bare outline of the Conclusions he reached. According to the witness, the components in the process gases were sulfur dioxide and water, which "react[ed] to give hydrogen sulfide." Schwartz stressed that this reaction was not the subject of theory, but rather rested upon "direct experimental observation by the leading figures in the history of chemistry." The witness noted that authoritative technical writers in the flue gas desulfurization industry were acutely sensitive to the "unstoppable" formation of hydrogen sulfide. The witness explained that minimization of hydrogen sulfide formation was heavily dependent upon the maintenance of super-high temperatures. Hydrogen sulfide formation increases as the components of the process encounters lower temperatures. Schwartz theorized that hydrogen sulfide was formed as the process gases cooled in their approximately two minute, 672 foot route to the interface valve after exiting the calciner.
Plaintiffs presented Dr. Richard Peskin as their expert in air dispersion science. Peskin discounted the applicability of "Gaussian plume" computer models which, as we understand, tended to negate the possibility that plaintiffs would have been effected by an emission from the MgO unit. A "Gaussian plume" refers to a description of the possible movement of a pollution contaminant in the atmosphere. Peskin testified that Gaussian plume computer models do not reflect the air dispersion of a contaminant in the "near field." More specifically, Peskin explained that plaintiffs' exposures - at 300 feet from the possible emission points - could not be discounted or ruled out through the use of Gaussian plume computer models, as suggested by defendant's experts.
Plaintiffs' expert in occupational and environmental medicine, Dr. Elaine Panitz, described at length the toxicity of sulfur dioxide and hydrogen sulfide. She described sulfur dioxide as heavier than air and "a highly irritating, colorless, soluble chemical." The substance may present an acute danger when it penetrates beyond the "upper respiratory tract" to the "deep parts of the lung." Panitz explained that sulfur dioxide is considered "an irritant gas" rather than an asphyxiant, and that it does not have the capacity to damage the brain.
In contrast, Panitz described hydrogen sulfide as an asphyxiant gas, meaning that it has the capacity to cut off the utilization of oxygen within the body. She characterized the substance as "a very fast-acting poison," capable of causing workers "to literally drop dead in their tracks." Because hydrogen sulfide does not easily dissolve in water, it has the capacity to travel quickly from the upper respiratory tract to the deep lung areas. Panitz further explained that contact with the chemical often leads to brain impairment and dysfunction.
Panitz described how those two gases are "created in the work place" based on her study of toxicology literature within occupational medicine. Specifically, she noted that hydrogen sulfide was created as a result of "sulfur products processing," an industry of which Panitz said defendant was a part. According to the witness, hydrogen sulfide was "the number one hazard in sulfur processing plants" and was "so dangerous that the working recommendation is that it be monitored continuously." The witness added that as a result of its toxic qualities, "people in the field of occupational medicine consider hydrogen sulfide to be even more hazardous than cyanide gas."
As to this latter point, Panitz concluded that Smith's condition, toxic encephalopathy, and symptoms were "almost totally consistent with the symptomatology exhibited in case reports in the medical literature of other individuals with high level acute gas exposure who survived long enough to tell about it." Because both plaintiffs had "significant pulmonary and neurologic symptoms," as well as many of the neurologic symptoms mentioned in a "high level exposure category" set forth in a 1992 toxicology treatise, Panitz placed them within that category of probable exposure to 500 to 1000 ppm of hydrogen sulfide. That component, along with the duration of exposure, served as the predicates to her Conclusion as to "the measurement or amount of exposure." Because Panitz's authorities indicated that at 500 to 600 ppm "it takes only 8.5 minutes to kill animals or humans," she opined that Smith's exposure ...