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Maertin v. Armstrong World Industries

May 3, 2000

JOAN MAERTIN, ET AL., PLAINTIFFS,
v.
ARMSTRONG WORLD INDUSTRIES, INC., DEFENDANT,
v.
AMERICAN MINERAL SPIRITS COMPANY, MONSANTO COMPANY, AND SOLUTIA, INC. THIRD-PARTY DEFENDANTS.



HONORABLE JEROME B. SIMANDLE

OPINION

SIMANDLE, District Judge

This lawsuit was instituted by people who were exposed to polychlorinated biphenyls ("PCBs") while working at Burlington Community College ("BCC") and who allege that they have either contracted, or fear contracting, cancer as a result of that exposure. The case has grown and grown over the years, as plaintiffs were added and as third party defendants were implead. This Court has decided many motions in this case, and many more, summary judgment and in limine alike, remain to be decided. The subject of the instant opinion are motions by Monsanto Company and Solutia Inc. (hereinafter "Monsanto"), Armstrong World Industries ("AWI"), and American Mineral Spirits ("AMSCO") for summary judgment dismissing the personal injury, loss of consortium, and/or wrongful death claims asserted by or on behalf of plaintiffs Vincent Sollimo, Patricia Sollimo, Claire Correale, Lothar Maertin, Joan Maertin, Elizabeth Leedy, Harold Leedy, James Stewart, John Hopen, Robert Scully, Marcia Scully, Gabrielle Nappo, and Frank Nappo, based on their alleged failure to comply with the applicable New Jersey statute of limitations relating to each of their claims.

Plaintiffs do not dispute the fact that their personal injury claims were commenced more than two years after they were formally diagnosed with cancer, and thus arguably out of time under N.J.S.A. 2A:14-2. Plaintiffs seek, however, the benefit of the "discovery rule" exception, arguing that they neither knew nor should have known within the two-year period preceding the filing of their claims that they had been exposed to PCBs at such a level that such exposure might have been causally connected to their cancers, and that they did file their lawsuit within two years of actually learning of the possibility of causation. While plaintiffs concede that the information on which their lawsuit is based was available for their viewing at any time in the college's "Right to Know Act" files, they argue that there would have been no reason for them to go look at those files and discover the possible connection between PCBs and their cancer any sooner than they did. The issue on this summary judgment motion is whether each of these plaintiffs, regarded individually, is entitled to the benefit of the discovery rule. Following careful consideration of each plaintiff's circumstances, and for the reasons stated herein, the motions for summary judgment based on the statute of limitations will be denied.

I. BACKGROUND *fn1

A. Introductory Background

From approximately August 1968 through April 1970, Armstrong World Industries ("AWI") manufactured and distributed Travertone Sanserra ceiling tiles coated with a plasticizer coating which incorporated Aroclor 1254, a chemical containing PCBs. Monsanto manufactured Aroclor 1254, and the chemical was supplied to AWI by Monsanto and third-party defendant American Mineral Spirits ("AMSCO"). Armstrong manufactured and sold the PCB-containing ceiling tiles to Burlington County College ("BCC") and installed in the Louis M. Parker Center ("Parker Center"), on the campus of BCC, shortly before its opening in August of 1971.

B. The August 25, 1985 Fire

On Sunday, August 25, 1985, an intense fire broke out in a chemical storage vault in the Parker Center, as a result of which the chemical vault was severely burned and approximately 16,000 square feet of the Parker Center sustained smoke damage. The fire, subsequent cleanup, and PCB remediation were widely reported in the local press and prompted a series of bulletins from BCC's then-President, Harmon Pierce, to the faculty, staff, and students. The fire and clean-up were described by numerous people, including plaintiff Sollimo, as extremely disruptive, as the building was largely closed off during the cleanup, eventually being opened up in selected parts as the cleanup continued. Classes were rescheduled to other buildings, including temporary buildings.

Since the fire occurred in a chemical vault, BCC retained a waste management firm, O.H. Materials, Co. ("OHM") to conduct the cleanup because of the possibility of chemical contamination. OHM representatives, each in a fully-enclosed, self-contained breathing apparatus -- which several plaintiffs have described as "space suits" --entered sealed-off areas of the building to assess the damage and to determine whether any hazardous conditions existed which required immediate attention. Over the next several weeks, numerous tests were conducted, during which the Parker Center remained temporarily closed.

Approximately two months after the fire, on October 13, 1985, President Pierce was notified by OHM that certain chemical tests revealed the presence of PCBs on the upper surfaces of ceiling tiles in several locations in the Parker Center. The Parker Center was closed so that further chemical testing could be conducted. The faculty and staff of BCC were invited to a briefing in the college gymnasium that afternoon, where President Pierce informed all who attended that test results had revealed the presence of PCBs in the Parker Center. On October 15, 1985, OHM representatives conducted an additional briefing concerning PCBs for the BCC faculty and staff, which included a handout. One of the Fear of Cancer Plaintiffs, Charles Perrone (whose claims have since been dismissed), testified that he attended the OHM meeting, and that OHM "must have" discussed health risks associated with PCB exposure.

C. Media Coverage and the BCC Memoranda

The detection of PCBs in the Parker Center sparked a second flurry of media attention and the issuance of additional memoranda from BCC President Pierce. For example, on October 16, 1985, an article in the Burlington County Times entitled "PCBs Force Closing of BCC Center," reported "the discovery of polychlorinated biphenyls (PCBs)," a chemical with "toxic and carcinogenic properties," in the air and ceiling tiles at the Burlington County College's main building." (DiMuro Certif. at Ex. 22.) That article noted that "[i]n experiments with rats and mice, PCBs were found to promote liver cancer." (Id.) This same article described the fact that the "federal Occupational Safety and Health Administration (OSHA) has a workplace standard of 500 parts per million, while the National Institute of Occupational Safety and Health (NIOSH) has a recommended standard of one part per million," and stated that "[t]est crews discovered from two to four parts per million in the air of the rooms tested." (Id.)

A similar article entitled "More areas of college center may be closed for chemical cleanup" appeared in the October 17, 1985 edition of the Courier-Post, and reported that "[l]ow levels of toxic polychlorinated biphenyls [were] found during the cleanup of a fire in the Parker Center of Burlington County College." (Id. at Ex. 23.) This article also advised that "PCBs were banned by the federal government in 1976 after they were linked to skin lesions, birth defects and reproductive failure in laboratory animals." (Id.) It additionally noted that the levels of PCBs found in the Parker Center were far below OSHA's maximum and above NIOSH's limit, and it quoted a college spokesperson as saying that "its [sic] not felt that there's any immediate [sic] danger to anybody." (Id.) Similar articles appeared in the October 17th editions of the Burlington County Times and the Trentonian, which described PCBs as a "known carcinogen" and as being a "chemical with toxic and carcinogenic properties," respectively. (Id., Exs. 24 and 25.) On October 17th and 18th, various television news programs televised reports regarding "[l]ow level PCB contamination" in the Parker Center and "traces of toxic PCBs at ... the Parker Center." (Id. at Exs. 27 and 28.)

On October 18, 1985, President Pierce released a memorandum directed to the faculty, staff, and students, advising them that "air sampling tests [had] disclosed the presence of low levels of PCB in the air near the ceiling in certain areas of the Parker Center. (Id. at Ex. 19.) The memorandum also did note potential health implications from PCBs, stating that

It has been reported that workers occupationally exposed to high levels of PCB have demonstrated a variety of health problems. Contradictorily, it has also been reported that with the exception of high occurrences of acne at bodily points of high exposure, no consistent abnormal findings have been found among workers continually exposed to PCB. (Id.)

However, the letter also noted that "I must stress that the levels of PCB found in Parker Center are extremely low. Indeed, they are many, many times below the present acceptable occupational standard." (Id.) In the memorandum, President Pierce also stressed that "NO PCBs WERE OR HAVE BEEN DETECTED AT `HEAD HEIGHTS' OR BREATHING HEIGHTS IN THE AIR." (Id. (emphasis in original).)

On October 20, 1985, an article appeared on the front page of the Sunday edition of the Burlington County Times, which again reported that "tests found low levels of PCBs in the [Parker Center]." (Id. at Ex. 30.) The next day, President Pierce issued another memorandum to the students and employees. In that memorandum, he indicated that though one test found PCB in an air sample, "SUBSEQUENT EXTENSIVE TESTING THROUGHOUT THE WEEK SHOWED NO PCB PRESENT IN THE AIR IN ANY AREA OF PARKER CENTER. However, low levels were detected on surfaces in a few locations." (Id. (emphasis in original)). The memorandum further explained that Pierce, along with "State and County Health Officials, Department of Higher Education Officials, OHM specialists and others," decided that "[s]ince the air in Parker Center does not contain detectable levels of PCB, it was decided that employees could have open access to the building...." (Id.) The letter repeated the same "Health Implications" listed in the October 18, 1985 memorandum.

Numerous other articles appeared as well, including an October 24, 1985 article in the Burlington County Times entitled "BCC cleanup halted pending further PCB testing," a front page article in the October 1985 edition of the BCC student newspaper, The Word, three additional articles in The Word about the discovery and cleanup of PCBs at the BCC, and October 30, 1985 articles in the Philadelphia Inquirer and the Burlington County Times. The October 30th articles noted that "state inspectors found unusually high levels of PCBs in air and surface samples. `They are definitely levels above what would normally be found in a public building. It would be most prudent to clean it up,' said Alice Freund, a state health official overseeing the inspection at the college." (Id. at Ex. 34.) The article went on to note that "[h]igh levels of PCBs, according to some studies, can harm the respiratory and digestive tracts and cause chloracne, headaches and impotence." Similarly, the Burlington County Times reported that BCC's insurance company refused to pay for the PCB cleanup because "the potentially dangerous PCBs may date from the college's construction." (Id. at Ex. 35.)

By mid-November 1985, the Parker Center fire and cleanup had ignited a firestorm of controversy between the Burlington County Freeholders and the BCC Board of Trustees, which ultimately resulted in the ouster of the Board's President. Several articles which discussed the controversy also identified PCBs as "potentially carcinogenic" or "suspected carcinogens." (Id. at Ex. 36.)

Throughout December 1985 and into early 1986, the college and local press, including the Burlington County Times, The Trenton Times, Courier-Post, and The Word, continued to report on the PCB cleanup and testing process. For example, a January 31, 1986 Trenton Times article noted that "PCBS -- suspected carcinogens -- were found in the ceiling tiles in the building by the New Jersey Department of Health in October 1985." (Id. at Ex. 38.) The article also noted that the level was between two and four micrograms per cubic meter, which is below OSHA's standards but above that set by NIOSH. (Id.) Though the majority of the article focused on the cost of clean-up and the practical difficulty to teachers and students of having classes shifted around or held in trailers, the article also quoted a state senator as noting that this is "dangerous contamination." (Id.)

Another article, a February 18, 1986 front-page article in The Word entitled "Controversy Rises During PCB Testing," gave more information about the presence of PCBs. It quoted a New Jersey State Department of Health official as noting that certain areas of the building of which use would be prohibited: "`These areas include the cafeteria, library, administrative offices, some classrooms, snack bar, and kitchen,' [the official] said. `These areas have been determined in excess of the recommended health criteria of PCB's.'" (Id. at Ex. 40.) The article did note that studies of PCBs "showed that the substance did cause cancer in low concentrations of lab animals, but no cases of individuals developing cancer from being exposed to PCBs on a regular basis arose." (Id.) The article also quoted Alan Todd, an industrial hygienist, as "suggest[ing] the likelihood of ingesting PCB particles is severely [sic] low. A very low concentration of the chemical in the form of dust is airborn....[T]he dust would have to be eaten or inhaled to have an effect on an individual, and the college's clean environment thwarts the possibility for the dust to accumulate." (Id.)

D. Discovery of Source of PCBs and Coverage Thereof

During this same time period, President Pierce continued issuing bulletins to the community updating them on the PCB cleanup in the Parker Center. On March 10, 1986, he issued a Special Bulletin to the staff and students of BCC that was distributed to all faculty and staff. (Id. at Ex. 42.) In that bulletin, he announced that the source of the PCB contamination of the Parker Center had been identified as coming from certain types of ceiling tiles that were installed between 1969 and 1971 when the Parker Center was under construction. (Id.) Pierce also noted that further testing would be done to determine how much PCB-laden dust was lying around. (Id.) A copy of a press release was attached to the bulletin, noting the presence of PCBs in the ceiling tiles. (Id.) The press release also quoted an industrial hygienist as noting that "[t]here is no immediate danger to those working in the Parker Center," but that the PCBs would be removed because of environmental regulations (id.), information which had also been contained in the March 10th bulletin itself.

A bill was proposed in the state legislature to appropriate $3.5 million for the removal of PCBs. After introduction of the legislation and issuance of President Pierce's press release, articles appeared in the Burlington County Times on March 12th and 17th and in the March 23rd edition of the Courier-Post which reported developments on the cleanup bill (asking the state for funding) and the source of the PCB contamination. The first sentence of the March 12th article notes that the funding would be for the "removal of potentially cancer-causing materials" from the college. (Id. at Ex. 43.) The March 17th article refers to PCBs as "potentially carcinogenic" but also notes that "there is nothing in the findings that indicates any immediate danger to anybody." (Id. at Ex. 44.) The Courier-Post article noted that PCB use was banned "by the federal government 10 years ago after they were linked to birth defects, skin disorders and reproductive failure in laboratory animals." (Id. at Ex. 45.)

On April 2, 1986, a substantial article entitled "The lingering threat of PCBs" appeared in the Philadelphia Inquirer; it was distributed to the faculty of BCC. (Id. at Ex. 46.) The third paragraph of the article notes that "[e]xposure to PCBs has caused cancer and liver problems in laboratory rats. Although there is no conclusive evidence of harm to humans from PCBs other than severe acne, those animal-test results have prompted the state Department of Health to consider PCBs a possible carcinogen in humans." (Id.) The article continued by noting that no one in the Parker Center "has developed a bad case of acne or any other noticeable health problem. But no one, least of all Pierce, is happy to be working under a ceiling tile that could be hazardous to his health." (Id.) Pierce was quoted as saying that "I do not think it is presently a health hazard, but is not something one wants to live with...." (Id.) A State Health Department official was also quoted, noting that "PCB contamination was not an immediate health threat but `it's a level above which people should not be exposed.'" (Id.) In a Special Bulletin dated April 23, 1986, President Pierce continued to advise Students and Staff of BCC of developments regarding the PCB cleanup. (Id. at Ex. 48.) This particular bulletin did not contain information about the amount of PCB contamination or its potential health effects.

On May 17, 1986, in an article entitled "State finds PCB in college ceiling", the Courier-Post reported that "[t]he state Department of Health has found concentrations of [PCBs]...in the paint on ceiling tiles at Burlington County College, but at levels not considered dangerous during short-term exposure." (Id. at Ex. 49.) The article went on to note that the levels found were above those recommended by NIOSH. Though the article noted the Department of Health's belief that there was no immediate risk of harm to building occupants, it also noted the Department's statement that "[t]his is one of those situations where long-term exposure, over a period of decades, could possibly cause health problems." (Id.) Additionally, the article commented that PCBS "are known to have caused cancer in laboratory animals." (Id.) A July 18, 1986 article in the Trenton Times also commented that long-term exposure could cause health problems and that "PCBs cause cancer in animals, and national and international health agencies recommend that it be regulated as a carcinogen." (Id. at Ex. 50.)

In August of 1986, BCC's Interim President, Joseph F. Russo, issued a memorandum to the faculty and staff regarding the "status of the ... PCB cleanup of other areas in the Parker Center," noting his anticipation that clean-up would be complete by the end of the month. (Id. at Ex. 51.)

Eight months later, in a March 29, 1987 article in the Asbury Park Press entitled "N.J. fire reveals major tilemaker used PCBs to fireproof ceiling tiles," it was reported that during "decontamination of the Parker Center, PCB levels ranging from 100 to 750 parts per million were recorded." (Id. at Ex. 52.) The same article noted that this was above NIOSH standards and that the Center for Disease Control in Atlanta had advised that "PCBs are considered a possible human carcinogen and are suspected of causing reproductive problems in laboratory animals.

E. The Immediate Concerns of the BCC Faculty

In late October 1985, shortly after the discovery of PCBs and in the midst of the height of media attention, BCC employees began expressing health concerns to the College administration regarding their exposure to PCBs. In an October 30, 1985 memorandum to President Pierce, Ken McCarty, BCC's Personnel Director, references "four major health issues expressed by BCC employees regarding PCBs." (Id. at Ex. 53.) One of those concerns was whether PCBs could have an adverse effect on an employee "recovering from a mastectomy performed because of cancer." (Id.) Others of these concerns were submitted by Hilda Moore, and employee in the Admissions and Registration Office, in the form of thirteen questions. (Id.) Ms. Moore suggested a meeting with the Department of Health.

Apparently in response, about this time, BCC distributed to its employees a report generated by the Department of Environmental Science at Cook College, Rutgers University, which contained information concerning PCBs, including its properties and alleged health effects. (Id. at Ex. 55.) The report also contained a list of reference materials. (Id.) Possible health effects mentioned in this report were chloracne (a type of acne); disorders of the peripheral nervous system, eye discharges, hyperpigmentation of the skin, nails, and mucous membranes; reproductive failures; gastric disorders; decreased resistance to disease; skin lesions and tumors in laboratory animals; and liver cancer (in experiments with mice and rats). (Id.) The report noted that

Workers occupationally exposed to high PCB concentrations have exhibited cases of chloracne, digestive disturbances, jaundice, impotence, throat and respiratory irritations, and severe headaches. This is in contrast to a recent report by Ecology and Environment, Inc. (1981) which states that other than high incidences of chloracne, no consistent abnormal findings have been found among workers continually exposed to PCB's. According to a study presented at the New York Academy of Sciences Symposium of 1979: Health Effects of Halogenated Aromatic Hydrocarbons, the occurrence of melanomas (a type of malignant tumor) was significantly higher for a test group of occupationally exposed workers than for the general population.

As is indicated by the contradictory findings of the aforementioned studies there exists a controversy over the extent of harm which may be caused by PCB's. In fact, it has been suggested that much of the toxicity of PCB's may not be caused by PCB's. In fact, it has been suggested that much of the toxicity of PCB's may be ...


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