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Clark v. Safety-Kleen Corp.

April 08, 2004

STANLEY CLARK, PLAINTIFF-APPELLANT,
v.
SAFETY-KLEEN CORP., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT,
AND JOHN DOE I, A FICTITIOUS PERSON; AND XYZ CORPORATION, A FICTITIOUS ENTITY, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Long, J., writing for a unanimous Court.

In this products liability case, the sole issue before the Court is whether the expert testimony adduced by plaintiff Stanley Clark fell within the witness's sphere of expertise.

On April 3, 1992, Clark was working as an auto mechanic. While cleaning a carburetor, Clark placed the metal parts in a metal dip basket. Wearing heavy, large rubber gloves, long sleeves and eye protection, Clark submerged the basket into"Carburetor and Cold Parts Cleaner 609" (cleaner), a product manufactured by defendant Safety-Kleen. Still wearing the gloves, Clark removed the parts from the basket and rinsed them with warm water. He then took the parts to his workbench and blew them dry with a compressed air device. Because he had difficulty manipulating the small air nozzle on the dryer while wearing the gloves, Clark removed the glove from his right hand to operate the nozzle, but kept his left hand (which held the carburetor components) gloved. After the parts were dry, Clark removed his left glove with his bare right hand and reassembled the carburetor.

Before that day, Clark had noticed a small cut on the index finger of his right hand, but the cut showed no signs of infection. A few hours after cleaning the carburetor, Clark noticed a tingling sensation in the finger, so he changed the band-aid and ointment that he had been using to make sure the cut was clean. That evening, the sensation in the finger was more persistent, so Clark cleaned the finger with hydrogen peroxide and water and went to bed. At approximately 11:00, Clark woke suffering from excruciating pain. He went to a hospital and was quickly transferred to Thomas Jefferson University Hospital in Philadelphia. Clark was diagnosed with chemical infection and streptococcal infection. Four surgeries later, Clark had lost substantial function in the finger. Clark's work was significantly affected from the loss of fine motor manipulation.

Clark filed this lawsuit alleging that the cleaner was unsafe for its intended use because it created an ultrahazardous condition in that the product was so harsh and caustic that it destroyed and infected the skin. Clark claimed also that Safety-Kleen failed to give adequate warning of the nature and extent of the danger. At trial, Stanley Tocker, Ph.D., a retired research chemist, was called by Clark to testify regarding the cleaner. In addition to his multiple chemistry degrees, Dr. Tocker was employed as a research chemist for Dupont for thirty-seven years, during which he engaged in research relating to various chemicals. He worked with both cresols and cresylic acid and observed the damage that cresylic acid could do to human tissue. Dr. Tocker was familiar also with chemical labeling and material safety data sheets from his work experience. Clark offered Dr. Tocker as an expert in the fields of chemistry, the effects of chemicals and cleaning products on human tissue, and the design of chemical products and cleaning products. During voir dire, Dr. Tocker admitted that he was not a toxicologist or an industrial hygienist, and that he had not

personally tested the chemicals in the cleaner at issue. Among other extensive testimony about the properties of the chemical in the cleaner, Dr. Tocker stated that if Clark removed his left glove with the ungloved and cut right hand, that exposure alone would have been sufficient to cause severe damage to his finger. Dr. Tocker also testified that the hospital records failed to mention the precise chemical that injured Clark"probably" because the hospital would not have had chemical analytical equipment to perform such tests. Dr. Tocker testified further that once human tissue is opened and the chemical has an opportunity to operate in an open wound, it is susceptible to infection by bacteria, including strep and staph. Dr. Tocker's testimony was buttressed by the testimony of Clark's treating physician, an orthopedic surgeon specializing in hand surgery.

The jury returned a verdict in favor of Clark, finding that the cleaner was defectively designed and that there was an inadequate warning on the product. The Appellate Division reversed. In part, the panel ruled that the requirement of proving the existence of a feasible alternative design was not met and, therefore, Safety-Kleen's motion for a voluntary dismissal of Clark's defective design claim should have been granted. That ruling by the panel was not considered by the Supreme Court. The panel found also that the jury's conclusion on the medical causation element of the failure to warn claim was fatally flawed by the wrongful allowance of Dr. Tocker's causation testimony. The Supreme Court granted Clark's petition for certification limited to the issues arising out of the alleged failure to warn and medical causation. The opinion of the court was delivered by: Justice Long

Argued March 1, 2004

In this products liability case, the sole issue before us is whether the expert testimony adduced by plaintiff fell within the witness's sphere of expertise. The Appellate Division held that it did not and invalidated a jury verdict in plaintiff's favor. That conclusion too narrowly interpreted our decisions in Rubanick v. Witco Chemical Corp., 125 N.J. 421 (1991), and Landrigan v. Celotex Corp., 127 N.J. 404 (1992), which recognized that the testimony of a non-physician scientist could be admitted with respect to medical causation if the particular expertise or skill of the witness so warranted. Here, a research chemist testified to the effects of cresylic acid on human skin and concluded that plaintiff's injuries were consistent with exposure to that chemical. Although some individual statements by the expert were improper, the bulk of his testimony rested primarily on the toxicological properties of the chemical, a subject well within his special qualification. We are therefore satisfied that his testimony was admissible and, thus, we reverse.

I.

On April 3, 1992, plaintiff Stanley Clark sustained an injury to his finger after using "Carburetor and Cold Parts Cleaner 609" (Cleaner 609) manufactured by defendant Safety-Kleen. In a subsequent Complaint filed against Safety-Kleen in 1994, Clark alleged that Cleaner 609 was "unsafe for its intended use [because it] created an ultrahazardous condition, in that the product was so harsh and caustic that it destroyed and infected the skin on the hands of [Clark], and thereby caused a gangrenous condition to develop...." Clark also alleged that Safety-Kleen had "failed to give [Clark] and other users of the product adequate warning of the nature and extent of the danger resulting from the use of the product." At the heart of those claims was Clark's assertion that the precise chemical formulation of Cleaner 609, which contained cresylic acid,*fn1 caused the damage to his finger.

A trial was conducted from September 21-27, 1999. Much of the testimony adduced bore on the issue of design defect, which is not before us. Only the evidence relevant to our inquiry will be recounted. Clark testified that in 1992, he was employed as an auto mechanic at Triboro Pontiac in Cinnaminson, a job he had held since 1984. In the course of his work, he customarily performed all manner of automotive repairs, including cleaning carburetors. At the time, Clark typically used Cleaner 609 to clean and degrease a carburetor.

Around noontime on April 3, 1992, Clark "removed the carburetor from the vehicle, disassembled it, and placed the metal parts in a metal dip basket. Wearing heavy, large rubber gloves, long sleeves and eye protection, [Clark] submerged the basket in a five-gallon bucket of Safety-Kleen 609." Clark immersed the carburetor components for approximately one-half hour. Still wearing his protective gloves, he removed the parts from the basket and rinsed them with warm water. He then took the parts to his workbench and blew them dry with a compressed air device. Because Clark had difficulty manipulating the small air nozzle on the air dryer in the bulky gloves, he removed the glove from his right hand to operate the nozzle on the air dryer, but kept his left hand (which held the individual carburetor components) gloved. After the parts were dry, Clark removed his left glove with his bare right hand and reassembled the carburetor. He used no other chemical products on that day, or on the preceding day.

A few days prior to that incident, Clark had noticed a small cut on the index finger of his right hand that he was treating with antiseptic ointment and a band-aid. Before April 3, 1992, the cut showed no signs of infection. At around 3:00 p.m. on the 3rd, Clark noticed a tingling sensation in his finger, so he changed the band-aid and ointment to make "sure it was clean." At approximately 8:00 p.m., Clark observed that the sensation in his finger was "a little more persistent" so he cleaned the finger thoroughly with water and hydrogen peroxide and went to bed. At "approximately 11:00, 11:30, [Clark] woke up out of a dead sleep and the pain was excruciating.... It felt like somebody holding a lighter to the end of your finger, and there was nothing you could do about it."

Clark went to a local hospital that quickly transferred him to Thomas Jefferson University Hospital in Philadelphia after performing an X-ray and administering antibiotics. That night, his finger was very swollen - in his words, "like a hot dog on [a] grill," portions of the finger had turned black and cold, the entire hand had begun to swell, and a red streak could be seen from his finger to the middle of his forearm. On admission to Thomas Jefferson hospital, Clark was diagnosed with a severe finger infection, variously identified in his medical records as "early tenosynovitis" (swelling of the tendon sheath), "finger cellulitis" (an infection of the skin and underlying tissues), and "right index finger chemical infection."

On April 5, 1992, doctors surgically drained Clark's finger, releasing a large amount of clear fluid. That fluid was tested and found to contain a strain of streptococcal bacteria. Doctors decided against immediate amputation, and Clark was released from the hospital on April 10, 1992. The records from Clark's hospital stay contained several diagnoses including chemical infection and streptococcal infection. Later examination "revealed necrosis [tissue death] of the distal portion of his finger," and surgeons had to remove that dead tissue from the end of Clark's finger. After the surgery, Clark was left with very little skin on his right index fingertip. In a third surgery, doctors performed a "thenar flap" procedure, in which Clark's finger was sewn into the palm of his hand so that the skin from the palm would graft to the fingertip. Clark underwent four surgical procedures in all.

The procedures were largely successful but Clark's treating physician, Dr. Lawrence Schneider, "estimated the objective loss of function of the right index finger to be about 35% as an impairment evaluation. This will remain permanent.... [Clark's] actual loss in terms of practical purposes would be somewhat more, about 50% loss of the finger."

Clark experiences pain whenever he uses tools that vibrate, and the finger remains cold to the touch and embarrassing in appearance. He has no sensation for approximately three quarters of an inch at the tip of the finger. He experiences "a lot of pain" whenever he inadvertently hits or bumps the injured finger "because [his] bone is so close to the end of [his] finger, it's very delicate there." Furthermore, because the injury was sustained by the index finger of his dominant right hand, Clark "cannot work in his job as a mechanic as he did before, since he can no longer engage in fine motor manipulation, he has difficulty holding and manipulating small objects such as nuts, washers or tools, and he drops things at work." Because Clark is paid on a flat rate per job (rather than per hour), his inability to "work as quickly and obtain payment on the 'flat rate' basis" means that his ability to earn at the same rate as he had prior to the accident was hampered significantly by the injury to the finger. Clark testified at trial that he had read and understood the warnings on the Safety-Kleen label and thus had followed the recommended safety procedures. He was not aware that getting the solvent on a cut on his hand "would result in that much damage."

Dr. Stanley Tocker, Ph.D., a retired research chemist was called by Clark to testify regarding Cleaner 609. Dr. Tocker holds a B.A. in Chemistry from Johns Hopkins University, a M.S. in Chemistry from Virginia Polytechnic Institute, and a Ph.D. in Organic Chemistry from Florida State University. He was employed as a research chemist for Dupont for thirty-seven years before he retired. While at Dupont, Dr. Tocker engaged in research relating to plastics, pesticides, biochemicals, chemical synthesis, and chemical formulation. He worked with both cresols and cresylic acid and observed the damage that cresylic acid could do to human tissue.

In addition, Dr. Tocker was familiar with chemical labeling and "Material Safety Data Sheets" (MSDS worksheets)*fn2 from his experience in the agricultural products division of Dupont. Clark offered Dr. Tocker as an expert "in the fields of chemistry, the effects of chemicals and cleaning products on human tissue,... and the design of chemical products and cleaning products." During voir dire, Dr. Tocker admitted that he was neither a toxicologist nor an industrial hygienist, and that he had not personally tested the chemicals in Cleaner 609 on human skin.

He outlined for the court the documents he reviewed in preparation for his testimony:

I reviewed Mr. Clark's medical records. I reviewed the complaint, the interrogatories and answers. I reviewed the deposition of Stanley Clark on February the 22nd, 1995; James Fisher, March the 10th, 1995; Michael Hurley, February the 20th, 1995; Vincent Gallagher, July 31st, 1997. I reviewed reports from Vincent Gallagher of March the 8th, 1996 and John Slimm, July 23rd, 1992. I reviewed the [MSDS] documents and label of Safety-Kleen cleaner 609. I reviewed all the Safety-Kleen literature that was furnished to me. I also reviewed the deposition of Dennis Brinkman, March the 9th, 1999; the Ullmann's Encyclopedia of Industrial Chemistry on Cresols and Xylenols, I also reviewed the report by S.H. Rabinovitz, Ph.D. of Sandler Occupational Medical Associates, July the 25th, 1996, the report by the WARF Institute on skin corrosion tests of Safety-Kleen 609 on rabbits dated September the 9th, 1997.

They are written in order to "ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees." Id. at § 1910.1200(a)(1).

I also reviewed a great many other documents in my company's library relating to the safety of cresol and the other ingredients in 609. This involved Saks Chemical Desk Reference, Ullmann's Encyclopedia of Chemistry, the Merck Index, Internet documents from the EPA and OSHA. And many other pieces of literature that I found in my library as well as on the Internet.

Dr. Tocker stated that those items constitute the type of record that an expert in his field would rely on to formulate opinions regarding the effects of chemicals on human skin. Dr. Tocker's expert testimony was allowed over defense counsel's objection.

Dr. Tocker first testified to the chemical make-up of Cleaner 609 based on "literature that Safety-Kleen supplied." He explained that the product contains about twelve percent cresylic acid, and about thirty-two percent methylene chloride, as well as dichlorobenzene, surfactants, water, and an alcohol. Those percentages were reflected in Safety-Kleen's literature. Dr. Tocker testified that, in his opinion, "the cause of the medical problems was cresylic acid in the formulation." More specifically, he stated that "swelling of human tissue," "necrosis," "clear fluid in a wound," and "redness" would all be consistent with exposure to cresylic acid. Those conclusions were directly supported by the MSDS worksheets, the WARF Institute test documents, and Ullmann's Encyclopedia of Industrial Chemistry. Dr. Tocker further testified:

Cresylic acid rapidly penetrates human tissue. It will enter human tissue much faster if the human tissue is abraded or cut. Once it gets into human tissue, it starts destroying human cells and this includes the blood supply to the human cells. And when the blood supply is destroyed there's possibility of necrosis.

Now the thing that indicated to me that the cresylic acid was the key offender here and not methylene chloride or something else is the way Mr. Clark responded. He had a tingling in his finger, not an immediate burning sensation, which is typical of cresylic acid type burns. And then eventually hours later he started having excruciating pain. And this is very typical of cresylic acid. It's not typical of methylene chloride. It's not typical of any of the other ingredients in 609.

The MSDS documents supported that conclusion regarding delayed pain. They observed of cresylic acid that "[p]artial anesthetic properties may mask effects." In Dr. Tocker's opinion, even if a minimal amount of cresylic acid, "below a milligram," came in contact with Clark's finger, it would "cause the kind of damage [that he suffered]."

Dr. Tocker was then asked to consider the label that was placed on Cleaner 609. He expressed the opinion that the warning and instructions were inadequate for a product containing cresylic acid. The label on the five-gallon bucket of Cleaner 609 contained the following warnings:

DANGER. Contains Cresylic Acids and Chlorinated Hydrocarbons. Harmful or fatal if swallowed - Read Carefully ...


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