On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-6187-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard, Payne and Graves.
Plaintiff, Richard D'Apuzzo, contracted kidney and colon cancer in 1997 after employment from 1974 to 1997 by defendant, Union Camp Corporation, in its cardboard container printing plant. Claiming that the cancer was caused by workplace exposure to benzene and various other chemicals, plaintiff filed suit against companies supplying chemical products to his employer. Following settlement with five of the defendants, the remainder, defendants Ashland, Inc., Unocal Corporation and Whitaker Oil Company, suppliers of ingredients utilized in products manufactured by defendants Anchor/Lith-Kem-Ko and Polychrome Corporation, moved before Judge Lawrence D. Smith, at various times, for summary judgment, arguing that plaintiff's claims of liability premised on failure to warn of the presence of benzene in their products above permissible Occupational Safety and Health Administration's (OSHA) Hazard Communication Standards (HCS) could not be factually supported. Their motions were granted, and a motion for reconsideration of the order of summary judgment in favor of Whitaker was denied. Plaintiff and his wife, Joann D'Apuzzo, suing per quod, have appealed.
Plaintiff conceded in connection with defendants' motions, in accordance with the opinion of his expert, Melvyn Kopstein, Ph.D., that OSHA's guidelines constitute the "gold standard" for determining whether products are defective. OSHA's HCS requires that a company note, in a Material Safety Data Sheet (MSDS) that accompanies a product and elsewhere, when benzene is present as a component in the product at a concentration of 0.1% (1,000 parts per million (ppm)) or greater. 29 C.F.R. § 1910.1200(d)(5)(iv). Additionally, OSHA requires notification, when a product consists of a mixture, "of all ingredients which have been determined to be health hazards, and which comprise less than 1% (0.1% for carcinogens) of the mixture," if there is evidence that the ingredient(s) could be released from the mixture in concentrations which would exceed an established OSHA permissible exposure limit (PEL) or ACGIH*fn1 Threshold Limit Value (TLV) or could present a health risk to employees. 29 C.F.R. § 1910.1200(g)(2)(i)(C)(2). The reportable TLV for benzene is a time-weighted average of one ppm over an eight-hour day.
Plaintiff did not test any of the defendants' products at issue for the presence of benzene, served no interrogatories on defendants, and did not seek the test results of defendants' bulk suppliers. Nonetheless, plaintiff indicated on November 4, 2005, at the time of oral argument on Whitaker's motion for summary judgment, that he contemplated no additional discovery. The discovery period was thus closed at that time.
The record demonstrates that, commencing in the mid-1980s, Whitaker, a distributor, obtained hexane from Citgo, which Whitaker in turn furnished to defendant Anchor/Lith-Kem-Ko, without modification or packaging, in bulk shipments from Whitaker's Panama City facility, for use in Anchor's product, FilmKleen. The FilmKleen was utilized by plaintiff in his employment duties. Whitaker did not independently test the hexane that it sold, relying on the manufacturer for that purpose, but furnished purchasers with the manufacturer's MSDS forms, along with Whitaker's Product Quality Reports that contained information provided by the manufacturer regarding the chemical composition of the hexane, including benzene concentration. In accordance with its document retention policy, Whitaker had destroyed applicable MSDS forms and Product Quality Reports from the years in which it sold hexane to Anchor prior to the cessation of plaintiff's employment. However, it produced multiple Product Quality Reports applicable to the years 2000 to 2002. Additionally, Anchor produced two MSDS forms supplied to it from this period. None indicated reportable levels of benzene.
The deposition of Henry Ray Brady, a chemist employed by Anchor, commencing in 1983, whose work focused on Anchor's solvent products, disclosed that Anchor routinely tested the hexane supplied to it by gas chromatographic analysis, and had never detected benzene, toluene or xylene in that analysis. Anchor did not relay the MSDS forms transmitted by Whittaker and originated by Whittaker's suppliers, but instead created its own for use with its product, SafetyKleen. Multiple Anchor MSDS forms, which commence in 1986 and span the years in issue, appear in the record. None reveals the presence of benzene. Inhalation warnings appear on the MSDS forms. Anchor also created its own warnings, its own labels, and it supplied its product with those warnings and labels, together with its MSDS forms, to Union Camp. According to Brady, none reflected the presence of any carcinogenic materials because the evidence disclosed none. The labels, like the MSDS forms, contain a cautionary inhalation warning.
Whitaker also produced the certifications of its own expert and a plant employee attesting that the chromatographic method used by its supplier was adequate to disclose the presence of benzene.
In opposition, plaintiff challenged the methodology utilized by Whitaker's supplier to test benzene, as well as the test methodology utilized by Anchor when no detectable levels of benzene were revealed. Plaintiff also pointed to literature from the 1970s and earlier disclosing that levels of benzene in hexane have varied widely over the years and have many times exceeded OSHA limits, and he argued that Whitaker had never tested for airborne benzene vapors emanating from the hexane it sold, which could have exceeded applicable limits.
In granting summary judgment, Judge Smith recognized that, pursuant to indisputably applicable federal regulations, a distributor that does not modify a product in any fashion is entitled to rely on the up-stream manufacturer for an analysis of and report on the composition of the product, which the distributor may then pass on to its own customer, as Whitaker did in this case. The judge found that the only information available to Whitaker was that the benzene concentration in the hexane that it purchased from Citgo, and possibly others, was below reportable limits. This information was provided to Anchor, which performed its own gas chromatographic testing on the hexane supplied to it. That testing never ...