The opinion of the court was delivered by: Stein, J.
A-115/116/117/118/119/120 September Term 1997
On certification to the Superior Court, Appellate Division, whose opinion is reported at 301 N.J. Super 512 (1997).
The critical issue presented by this appeal concerns the specificity of proofs required to entitle plaintiff to a jury trial on the question whether decedent's stomach and liver cancer was proximately caused by prolonged, frequent and repetitive exposure to defendants' petroleum and chemical products that contained no warning of their hazardous propensities. Defendants contend that the lack of proof of the specific content of their individual products and lack of proof of specific exposure to each product justified the Law Division's grant of summary judgment.
Over the course of his twenty-six years of employment with Bessemer Processing Company, Inc. (Bessemer), decedent Walter James (James) was exposed on a daily basis to a wide array of residues of petroleum products and other chemical substances, many allegedly containing benzene, polycyclic aromatic hydrocarbons and other human carcinogens. On February 8, 1990, at the age of fifty-two, James died of stomach and liver cancer. James's widow, plaintiff Ida James, brought this survivorship and wrongful death action against multiple defendants, alleging that they failed to warn of the dangerous propensities of the substances they shipped to Bessemer and that James's continuous exposure to those substances was the cause of his illness and death.
The Law Division granted summary judgment to all defendants on the ground that plaintiff would be unable to establish that James's cancer was caused by specific products manufactured by specific defendants. That court issued separate orders dismissing defendant's complaint against various defendants on procedural grounds. The Appellate Division reversed the summary judgment order dismissing plaintiff's complaint against all named defendants. James v. Chevron U.S.A., Inc., 301 N.J. Super. 512, 522-23 (1997). The defendants affected by the summary judgment order reversed by the Appellate Division were the following petroleum manufacturers: Shell Oil Company (Shell), Exxon Company, USA (Exxon), Amoco Corporation (Amoco), CITGO Petroleum Corporation (CITGO), Chevron U.S.A., Inc. (Chevron), Texaco, Inc. (Texaco), Sun Company, Inc. (Sunoco), and Mobil Oil Corporation (Mobil)(collectively "the petroleum defendants"). Also affected were the following manufacturers and suppliers of various other chemical substances: Ashland Chemical, Inc. (Ashland), Occidental Chemical Corporation (Occidental)(successor to named defendant Hooker Chemical Company), Daicolor-Pope, Inc. (Daicolor-Pope), Pride Solvents & Chemical Company of New Jersey, Inc. (Pride), MacArthur Petroleum & Solvent Company (MacArthur), and North American Paint Company (North American Paint) (collectively "the chemical defendants"). *fn1 Additionally, the Appellate Division reversed the separate orders dismissing defendant's complaint on procedural grounds in favor of defendants Texaco and Chevron, remanding for a hearing to determine whether Chevron and Texaco were prejudiced by plaintiff's untimely service of process upon them. Id. at 523. The Appellate Division's holding reversing an additional order of the Law Division granting summary judgment on procedural grounds to Daicolor-Pope, MacArthur and North American Paint is not under review by this Court.
The primary issue posed by this appeal is whether a plaintiff in a toxic-tort, failure-to-warn case can establish a prima facie case on the element of "medical causation" by satisfying the "frequency, regularity and proximity" test pronounced by the Appellate Division in Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (1989), absent evidence that the illness was caused by specific products manufactured by specific defendants. Additionally, we must determine whether a showing of prejudice to the moving parties is required to support a trial court's determination to dismiss a plaintiff's complaint without prejudice pursuant to Rule 4:4-1.
As this appeal arises from the Law Division's order of summary judgment in favor of defendants, we review the evidentiary record in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). James began his employment with Bessemer in September 1963 at the age of twenty-five and worked as a general laborer at Bessemer's Newark facility for twenty-six years until his illness forced his retirement in October 1989. Bessemer, a wholly-owned subsidiary of Kingsland Drum and Barrel (Kingsland), was engaged in the cleaning and reconditioning of used and empty fifty-five-gallon drums for further use by the petroleum industry and certain other chemical manufacturers. Generally, Kingsland would retain those drums that could be cleaned through a hot water and caustic washing process, and would forward to Bessemer those drums that either contained stickier and more viscous residues requiring incineration and blasting, or those drums that needed to be recontoured because of physical damage. In all, Kingsland forwarded to Bessemer approximately thirty percent of the drums it received from its customers. The entities supplying drums to Kingsland for reconditioning had no direct contact with Bessemer, because all drums were originally sent to Kingsland and Kingsland billed the entities who supplied the drums for the reconditioning services performed by Bessemer.
The reconditioning process that took place at Bessemer was multi-staged and, according to Bessemer employees, each stage of the process exposed the workers to noxious fumes and chemicals. The first stage of the process was the emptying of the drums. Although by federal regulation the "empty" drums sent by oil producers were supposed to have no more than one inch of residue, Bessemer employees indicated in depositions that most drums contained as much as four or five gallons of waste material when they arrived at the Bessemer plant. The drums were first brought to the "cutting room" where workers uncapped the heads of the drums. The noxious fumes from the chemicals in the drums pervaded the cutting room, and workers in that room could not avoid inhaling those fumes. After the drums were uncapped, as much residue as could be removed prior to incineration and blasting was dumped into a "slop hole," a pit approximately six-feet deep that collected beneath a conveyor. During this emptying process, waste material from the drums frequently spilled onto the skin and clothing of the workers. Twice a month, workers would empty or clean out the slop hole, partly with the aid of a front-end loader, and partly by removing the residue manually with shovels and buckets. James was frequently involved in cleaning out the slop hole, both as an operator of the front-end loader and manually with a shovel.
Next, the uncapped drums were turned upside down and placed on a drag-chain conveyor that transported them through a "tunnel incinerator" operated by Bessemer workers where the remaining residue in the drums was burned and charred by high temperature flames. The "strong and foul" smell of the burning chemicals permeated the area surrounding the incinerator and those workers who operated it inhaled the emanating fumes. The drums were then sand blasted to remove all of the charred material, releasing dust and fumes into the air to which the workers also were exposed. The drums were then washed with nitrate and soda, straightened by a "rolling machine," sealed by a "head up machine" or "heading machine," welded by a welding machine, and tested for holes by a steamer machine. The drums were then rewashed, placed in an oven to dry, and then painted by Bessemer employees. Following the completion of the reconditioning process, the drums were either resold or returned to the suppliers for reuse.
During his employment with Bessemer, James functioned predominantly as a "utility man," available to fill in for absent workers at any position in the plant as required by his employer. Daniel Stewart, who worked for Bessemer from 1949 until 1984, indicated that he saw defendant perform every job required at the Bessemer plant, including cutting the heads off drums; operating the incinerator, sand blaster, rolling machines, and heading machines; welding and painting drums; and, as previously described, cleaning the slop hole. James was diagnosed with stomach cancer in October 1989. He died at the age of fifty-two on February 8, 1990. The cause of his death was "carcinoma with metastasis to the liver and peritoneum."
Due to a lack of business, Kingsland and Bessemer ceased operations in June 1992. The business records that had been kept at Bessemer throughout the period of James's employment were "production documents" that indicated the number of drums that had been reconditioned. However, they did not indicate the name of the corporate customer that had provided to Kingsland the drums that were reconditioned at Bessemer, nor did they indicate the specific chemical residue contained in any particular drum. All other records were kept at Kingsland, including bills of lading and billing invoices indicating the number of drums picked up by Kingsland drivers from a specific customer, but not reflecting the content of the empty drums. Pursuant to the requirements of the Resource Conservation Recovery Act (RCRA), 42 U.S.C.A. 6901, et seq., each shipment of drums picked up by Kingsland contained a certification from the supplier of the drums attesting that the supplier used its best efforts to remove the residue in the drums. However, the RCRA certifications did not indicate the nature of the residue in the drums.
Beginning some time in the late 1980's, around the time that James was diagnosed with cancer, Kingsland began receiving Material Safety Data Sheets (MSDSs) from both the companies supplying drums for reconditioning and the companies supplying various products used in the reconditioning process. The MSDSs contained warnings of and safety instructions regarding the hazards of the residues and products received. However, although such MSDSs were provided for each substance that Kingsland potentially might receive, they did not necessarily indicate which specific products or residues a supplier had provided to Kingsland or in what quantities drums containing such residues may have been supplied. Kingsland officials indicated that all records generally were kept for three years and then destroyed. At some time within a few months after the cessation of operations at Kingsland and Bessemer in June 1992, Kingsland representatives destroyed all of the existing records that may have been pertinent to this litigation. Those defendant suppliers and manufacturers that responded to plaintiff's interrogatories all indicated that they knew of no records kept by their companies indicating the quantities, trade names or chemical compositions of any of the residues contained in drums sent to Bessemer by Kingsland for reconditioning.
Many of the drums that arrived at Bessemer had labels that listed the contents of the drum, displayed the name of the manufacturer of the contents, and contained some general health warnings that became more specific around the late 1980's. Those labels were removed as part of the incineration process. In November 1989, Kingsland received a citation from the Occupational Safety and Health Administration (OSHA) for failure to have a hazardous communication plan describing to its workers the hazards of residues contained in the drums with which they worked daily.
Because of the lack of documentation concerning the identity of the suppliers of the drums that were reconditioned at Bessemer and the identity of the material in those drums, plaintiff was required to rely predominantly on the memory of Bessemer employees and executives in her efforts to obtain discovery regarding that information. Before joining Bessemer as a defendant in this action, plaintiff served interrogatories on Bessemer, one of which asked for the identity of the chemical compositions and trade names of all of the substances to which James was exposed during his employment with Bessemer. Bessemer answered by explaining that James was subject to exposure from any type of material that might be shipped in 55 gallon steel drums, except herbicides, pesticides and hazardous materials described in 49 C.F.R. 261.33(e)(acutely hazardous materials). Empty drums whose previous contents held the aforementioned material were not accepted at Bessemer. The majority of the empty drums, from 1960 to the mid eighties would have contained petroleum based products. From the early eighties to 1989, the mixture of the drum residues became highly varied, and included but [was] not limited to: resins, dyes, paints, solvents, fragrances and unknown substances.
Plaintiff deposed Glenn Richard, the environmental and regulatory affairs officer for both Kingsland and Bessemer between 1984 and 1992, who identified Shell, Exxon, Chevron, Texaco, Sunoco, CITGO, Gulf and Mobil as entities that historically had provided drums to Kingsland. He testified that those drums generally contained residues from finished oil products or from raw material constituents of finished products. Richard further indicated that although Kingsland never dealt directly with Amoco, the Kingsland and Bessemer plants may have received for reconditioning drums containing residues of Amoco products. Richard identified Ashland Chemical, American Cyanamid Company, MacArthur Petroleum and Mellen Chemicals (acquired in 1990 by defendant Pride Solvents & Chemical Company) as entities that supplied drums containing chemicals and solvents. He indicated that Pope Chemical sent drums containing residues of blue and yellow dyes, and that North American Paint, Pan Chemical, Whittaker Chemical and Rising Star Coating provided the paints and liners used in the reconditioning process. Richard indicated that during peak years as many as 150,000 drums per year were sent to Bessemer for reconditioning, with 1,200 drums being reconditioned on a "good day."
Irving Klein, president and half-owner of Bessemer, who began working for Kingsland as a salesman in 1954, indicated that Texaco, Exxon and Shell were Kingsland's three biggest customers, with CITGO, Mobil and Sunoco not far behind. Klein testified that Texaco, Exxon, Shell and CITGO were customers for approximately forty years, American Cyanamid Company for thirty-five years, and Pope Chemical for over twenty years. Chevron and Baker Lite Company had been customers for approximately twenty-five years. Ashland Chemical and Prime Lube, an entity that filled orders for Amoco and Arco, had been customers for six years, MacArthur Petroleum & Solvent and Mellen Chemicals for four years, and Mobil for two years. Klein also recalled buying paint from North American Paint and Rising Star Coating, as well as selling reconditioned drums to North American Paint. Klein did not identify Occidental or Linde Gases as customers or suppliers.
Plaintiff deposed or received statements from five former Bessemer employees, each of whom had some recollection of the nature of the substances to which the employees were regularly exposed, as well as the manufacturers and/or suppliers of those substances. Daniel Stewart regularly observed drums from Shell, Exxon, Chevron and Texaco that generally contained gasoline and motor oil, and recalled that other entities that regularly supplied drums included American Cyanamid, Hooker Chemical, Roman Heart and Baker Lite. Stewart's certification stated that virtually all of the 55-gallon drums received by Bessemer had product residue left inside, usually amounting to four or five gallons of residue material, and that all drums emitted strong odors. The odor from some drums was so foul that they had to be stored outside for two to three days before they could be processed.
Roosevelt Lewis, a Bessemer employee from 1963 until 1992, testified at deposition that he saw drums from Shell, Texaco, Chevron, Exxon, Sunoco, Amoco, Mobil, CITGO, American Cyanamid and Pope Chemical "every day" at the Bessemer plant. He recalled that the drums from the petroleum defendants contained residues including light and dark oils, gasoline, and antifreeze. He recognized the gasoline and oil residues by sight and smell, describing the oil residues as "burned, black and sticky," and noting that the fumes from the drums sent by Exxon, Shell, Texaco and CITGO were "pretty strong," and that drums from those manufacturers at times contained "quite a bit of residue." He indicated that the drums from Pope contained blue, black and green dyes. On cross-examination, Lewis indicated that not all of the drums had labels, but that he identified some regular suppliers based on overhearing the dispatcher who sent trucks to the suppliers for pickups.
Eddie Kennedy, who worked at Bessemer for the entire period of its operations, recalled seeing on a regular basis drums from Chevron, CITGO, Mobil, Texaco, Exxon, Sunoco, Shell, Amoco and Gulf that contained "oil residue which was light to dark black in color." He described "frequently" seeing Texaco drums containing oils, black oils and gasoline.
Thomas Mewborn, a maintenance man and shop steward at Bessemer from 1977 until 1992, often unloaded drums arriving at the plant that contained gasoline, crude oil, diesel fuel, hydraulic oil and antifreeze. Although he could not specifically recall which entities supplied drums containing which residues, Mewborn regularly observed drums from Exxon, Shell, Texaco and CITGO. Johnny Ramey, a Bessemer employee from 1976 until 1990, recalled seeing drums from Exxon, Shell, Texaco, Chevron, Gulf, and CITGO. He testified specifically that the Exxon drums contained gas and oil, and he described using oil residue from some of the drums to operate his personal car.
James Davis, James's brother-in-law, worked as a drum inspector at Kingsland from 1965 until 1990. He recalled that the drums forwarded to Bessemer included drums from Texaco, Shell, Exxon, Mobil, Chevron and Sunoco. Those drums contained such substances as heavy industrial oil, machine oil, transmission oil, motor oil and antifreeze. Davis also traveled approximately once a week to the Bessemer plant, where he recalls having seen drums from those oil companies, as well as from American Cyanamid and Hooker Chemical. Davis recalled drums from Hooker Chemical that emitted such a strong and foul odor that employees needed to wear masks in order to handle the drums.
Additionally, Lewis, Kennedy, Mewborn and Davis each recalled seeing drums containing formaldehyde residue, but could not identify the entity or entities that supplied those drums. Mewborn indicated that the fumes from the formaldehyde drums were particularly strong, and that employees handling those drums would wear charcoal filter masks. Lewis, Kennedy and Stewart each observed drums containing embalming fluid, but could not identify the entity or entities from which those drums came.
In addition to the information elicited during discovery from lay witnesses, the record before the Law Division on defendants' motion for summary judgment included the reports of plaintiff's toxicological, medical and economic experts. Plaintiff's expert in toxicology, Dr. Myron Mehlman, reviewed summaries of James's medical records, summaries of deposition transcripts and witness statements, as well as scientific, governmental and medical literature on the carcinogenicity of various chemicals to which James was exposed during his employment at Bessemer. Dr. Mehlman cites several studies dating back as far as 1928 indicating the health risks of benzene exposure and describes decades-old epidemiological studies revealing a causative link between cancer and exposure to benzene and polycyclic aromatic hydrocarbons (PAHs) found in gasoline and petroleum products.
The toxicologist's report explains that "[b]enzene is present in many petroleum products, petroleum distillates, jet fuels, diesel fuels, crude oil, and is a significant component of gasoline (up to 6%)," and that "[b]enzene is currently classified by the Environmental Protection Agency (EPA), the American Conference of Governmental Industrial Hygenists (ACGIH), and IARC [the International Agency for Research on Cancers] as a human carcinogen." The report adds that "[a]nimal studies . . . have clearly and without question demonstrated the carcinogenic effects of benzene . . . ."
Dr. Mehlman indicated that "PAHs are a group of chemicals that are present in oil, petroleum products, and tobacco smoke. There are more than 100 different PAH compounds. Usually humans are not exposed to an individual PAH alone, but to a mixture of PAHs." The report indicates PAHs can enter the body through inhalation or skin contact, and that the primary exposure to PAHs occurs in the workplace. Many of the PAHs have been found to cause cancer in animals, and "[r]eports on humans show that individuals exposed to PAHs by inhalation or skin contact for long periods [or] to mixtures that contain PAHs and other compounds can also develop cancer." The Department of Health and Human Services has determined that six PAH compounds are carcinogens. IARC classifies thirteen PAH compounds as "having sufficient evidence for carcinogenicity (meaning they are human carcinogens)." The EPA has also determined that those thirteen PAH compounds are "probable human carcinogens," meaning that they more likely than not cause cancer.
Based on the testimony of Bessemer workers and the MSDSs provided in discovery by Shell and Exxon, Dr. Mehlman determined that the chemicals and products to which James was exposed included black oils, motor oils, PAHs, solvents and formaldehydes. He noted that many of the MSDSs provided by Exxon "indicate that numerous products contained extremely high levels of benzene and PAH's." Based on the evidence obtained by plaintiff during discovery and on numerous epidemiological and animal studies, Dr. Mehlman concluded that workplace exposures to various petroleum products (i.e., benzene, gasoline, mineral spirits, mineral oils) and chemicals, which contain gasoline, aromatic hydrocarbons, such as benzene, toluene, xylene, ethyl benzene, naphtha, acrylonitrile, formaldehyde, polycyclic aromatic hydrocarbons (i.e., benzo-alpha-pyrene), light cat-cracked naphtha ("LCCN") and other chemicals caused Mr. James to suffer from stomach and liver cancer.
Plaintiff also presented two reports of her medical expert, Dr. Rowland Goodman. Relying on the evidence obtained during discovery and on the report of the toxicological expert, Dr. Goodman concluded that the patient absorbed one or more of these carcinogens through his gastrointestinal tract and through his lungs. These chemicals then spread to his stomach causing a derangement of the DNA mechanism such that one or more of the cells grew in an uncontrolled fashion clinically known as cancer.
Finally, plaintiff offered the report of an economic expert, Dr. Frank Tinari, who estimated "the total present value of the projected losses resulting from the death of Walter James" at $1,243,830. That amount included estimated values for loss of income, ...