July 31, 2007
RICHARD D'APUZZO AND JOANN D'APUZZO, HUSBAND AND WIFE, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
UNION CAMP CORPORATION, E.I. DUPONT DE NEMOURS & CO., INC., EASTMAN KODAK CO., ANCHOR/LITHKEM-KO, INC., POLYCHROME CORPORATION, RYCOLINE SOLVENT & CHEMICAL COMPANY, INC., DEFENDANTS,
AND ASHLAND, INC., UNOCAL CORPORATION, WHITAKER OIL COMPANY, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 6, 2007
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 disclosed benzene at detectable levels. The judge observed: "Whether the test [Anchor] used was right or wrong[,] in my view it was incumbent upon Anchor to do the appropriate testing."
Further, Judge Smith held that, despite plaintiff's allegations of potential exposure to benzene vapors, there had been no proof supplied that benzene evolving from the hexane sold by Whitaker exceeded permissible limits.
The judge stated:
I question whether Whitaker's obligation insofar as warning is concerned would've been to warn Mr. D'Apuzzo. I don't know how [Whitaker] would've identified him, and his employer. His employer is more logical, but again, there's no citation to any cases that says that [the supplier of] a component of a part that's used in a finished product has a duty to warn the end user . . . and there's no proof that Whitaker had any reason to believe that the percentage of benzene in the hexane was equal to/or in excess of .1 percent.
In light of what I've indicated there is no basis for arguing that Whitaker should have warned Anchor and by extension there's no evidence which would require a warning to Mr. D'Apuzzo or Union Camp, his employer.
Having provided to Anchor a reasonably anticipated, sophisticated user all of the information that it had available to it relating to the hexane, Whitaker cannot be held liable to plaintiff for failure to provide a warning, whether the warning is to plaintiff, plaintiff's employer or Anchor.
There is no evidence of notice to Whitaker that the benzene concentration exceeded or equaled .1 percent. There is no evidence that [Whitaker] deviated from any industry standard in relying on the hexane manufacturer's advice and there is no evidence that Whitaker failed to act reasonably and there is no evidence that an excessive benzene level was present.
Accordingly, summary judgment was granted to Whitaker on November 4, 2005.
Almost immediately, plaintiff moved for reconsideration, and following extensive supplemental briefing and argument, the motion was denied by Judge Smith in an oral opinion placed on record on December 5, 2005, at the same time that he ruled on motions for summary judgment filed on behalf of Ashland and Unocal, which we will next discuss, along with additional evidence and arguments produced by plaintiff with respect to Whitaker.
Ashland, like Whitaker, supplied hexane as a distributor to Anchor for use in Anchor's FilmKleen, with a possible sale in 1986 and the remainder commencing in the 1990s. Additionally, Ashland supplied a petroleum naphtholene-containing product called Kwik-Dri 66 to defendant, Polychrome Corporation. Unocal*fn2
supplied Polychrome with naphthol spirits. Both were used by Polychrome in the formulation of its product, #257 Plate Cleaner.
Ashland has indicated that, at the time it was selling hexane to Anchor, its hexane was purchased from C.H. Chemicals, Inc., Phillips 66 Company, Phibro Energy, and Shell Chemicals. The product data sheets produced in connection with this litigation, although not complete, all reveal concentrations of benzene well below reportable levels, ranging from "nil" to ten ppm. Ashland's expert reports that, whereas records indicated higher benzene concentrations in earlier years, by 1984, two years before Ashland's isolated 1986 sale to Anchor, "typical concentrations of total aromatics in hexane were reported as .1%." In 1988, "a spot check of trace benzene in hexane from a barge indicated levels at less than .001%." As stated previously, Anchor's tests never disclosed the presence of benzene either in the hexane it purchased or in the FilmKleen it produced utilizing that ingredient.
Ashland's evidence regarding the benzene content of its Kwik-Dri consists of a February 27, 1978 memo stating that it contained none that was detectable in the ppm range. Additionally, Ashland's expert reports that in 1989, trace benzene was reported for Kwik-Dri at less than .050 ppm. Ashland contends plaintiff never produced any evidence to suggest greater concentrations were present.
Evidence in support of summary judgment in favor of Unocal, in the form of various product test results, product data sheets and physical property lists, indicates that Unocal's naphthol spirits likewise did not contain more than 10 ppm benzene and thus did not require an OSHA warning. This evidence was not substantially challenged by plaintiff at the trial level or on appeal.
In opposition to Ashland's position with respect to the benzene concentrations in its hexane, plaintiff relies, in part, upon an article written by Dr. Kopstein entitled Potential Uses of Petrochemical Products Can Result in Significant Benzene Exposures: MSDSs Must List Benzene as an Ingredient, accepted for publication in the Journal of Occupational & Environmental Hygiene. That article contains a literature survey that discloses excess benzene concentrations in various forms of hexane from different manufacturers in the 1970s and earlier. A chemical encyclopedia entry also contains a similar entry for the hexane-A of this period. Plaintiff also notes an Occupational Safety and Health guideline for n-hexane, applicable to the year 2006, that states that "[b]enzene may be present in concentrations ranging from one to six percent."*fn3
(Emphasis supplied.) Plaintiff argues: "Although these measurements show great variations, explainable by different oil viscosities and minor variations in oil refinery processes, what is consistent is that benzene levels remained substantially above OSHA limits of 0.1% throughout the entire period."
Plaintiff relies as well on a February 3, 1977, Ashland document reporting the benzene content of hexane at its facility at .15% and an April 26, 1978 document reporting the benzene content of its hexane at .3%. It is unclear whether the hexane in these studies was of the same composition as that much later supplied to Anchor.
Plaintiff's expert, Dr. Kopstein, again disputes whether the tests utilized by various suppliers and Anchor would detect benzene. Dr. Kopstein also asserts that a distinction must be drawn between n-hexane and industrial hexane, the latter generally having concentrations of benzene that far exceed OSHA reporting levels. He asserts further that the hexane distributed by Whitaker and Ashland was of the industrial sort, and that the MSDS sheets and other product information that the distributors supplied were simply wrong when they failed to disclose reportable benzene levels.
Additionally, Dr. Kopstein asserts that concentrations of volatile benzene from hexane may exceed governing TLVs and PELs, even when the concentrations of benzene in the hexane itself do not reach reportable levels. In this regard, he notes an Ashland memo from 1978 stating that it would be impossible to determine the level of volatile benzene in the workplace because of the difficulty in replicating workplace conditions. A Unocal memo, dated January 19, 1977, that sets forth the benzene content of various solvents at .001% or less, and states that "[i]t is difficult to extrapolate solvent benzene levels into TLV values in workroom air," is also cited as triggering a duty to warn.
In a decision placed on the record on December 5, 2005, Judge Smith granted summary judgment to Ashland and Unocal and denied plaintiff's motion for reconsideration of the order of summary judgment granted earlier to Whitaker. With respect to the motion for reconsideration, after analyzing various of plaintiff's "theories" with respect to liability on the part of Whitaker and rejecting them as factually unsupported or withdrawn, Judge Smith stated:
In sum, the only evidence which is neither implausible or improbable shows that Whitaker in supplying hexane to Anchor acted as a conduit from manufacturers, obviously making a profit, to just turn over that which it received in utilizing the information that was provided. As noted, Whitaker supplied its purchasers with product quality reports setting forth determinations regarding basic characteristics such as appearance, specific gravity, distillation point and odor. The product quality reports also set forth the products['] . . . benzene concentration as reported by the hexane manufacturer. In addition, Whitaker provided purchasers with the MSDSs provided by the hexane manufacturers themselves.
Judge Smith noted plaintiff's contention that hexane produced in the 1970s, "a time period when OSHA's new [benzene] regulations came into effect," contained excessive levels of benzene, and plaintiff's further contention that it was incumbent on defendants to demonstrate what produced the change in benzene content that defendants claimed had occurred. However, he also noted that plaintiff had not tested either the hexane supplied to Anchor or Anchor's product, FilmKleen, for trace benzene. Further, Judge Smith observed: "It is clear that all hexane is not created equal." As plaintiff's expert, Dr. Myron A. Mehlman, conceded, "you need to know the source of material, what refinery, what's the source of the crude, what method they use in their [refining]." Judge Smith further noted that, when asked if there was a way of knowing if benzene was present in the hexane used by Anchor, Dr. Mehlman responded: "I would say with a great degree of confidence that it's present but I can't say at what level. I don't know at what level."
Judge Smith further rejected plaintiff's claim that manufacturers' test results were wrong.
While plaintiff contends the manufacturers may have fabricated test results acting, I suppose, in some sort of conspiratorial manner, that thesis is pure speculation unsupported and totally implausible. The product of those manufacturers could at any time be tested by anyone in the distributive chain as well as by OSHA or other State or Federal agencies. There is no evidence to suggest that results were fabricated.
The judge concluded with respect to Whitaker:
Plaintiff has offered no evidence that Whitaker deviated from any industry standard in relying on its suppliers' test results. Plaintiff has offered nothing to show that those results were inaccurate or that Whitaker had reason to believe results were inaccurate. There is no evidence of an excessive benzene level in any hexane Whitaker supplied to Anchor, and there is no evidence that the concentration of benzene that was reported could result in an excessive release.
On this basis, Judge Smith reaffirmed the summary judgment previously granted to Whitaker. Turning to Ashland and Unocal, the judge found no evidence that would suggest that, during the relevant time period, the benzene content in the hexane and Kwik-Dri 66 sold by Ashland or the napthol spirits sold by Unocal was at a level that would require disclosure, or that a vapor release in excess of permissible limits could occur. Although the judge again acknowledged the existence of studies from the 1970s indicating excess benzene levels in various products, he stated: "OSHA regulations had changed and the changes required that manufacturers had to reduce benzene levels."
After discussing the evidence pertaining to defendants Ashland and Unocal and incorporating relevant analysis of evidence conducted in connection with plaintiff's motion for reconsideration of his ruling on claims against Whitaker, Judge Smith concluded:
Whether we view Ashland as a chemical manufacturer or supplier or responsible party, as those terms were discussed by OSHA in the regulations, there is no evidence from which a reasonable fact-finder could conclude with probability that the product Ashland supplied or the product Unocal supplied or the product Whitaker supplied exceeded the limit which would trigger a duty to warn either in connection with the composition of the product or in connection with a vapor release.
Summary judgment was therefore granted to Ashland and Unocal, as well.
Our review of the arguments of counsel and the record in this matter satisfies us that Judge Smith was correct in his decisions. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We affirm substantially on the basis of the judge's comprehensive opinion.
In a case such as this, premised on breach of a duty to warn, plaintiff has the initial burden of demonstrating the existence of a duty. James v. Bessemer Processing Co., 155 N.J. 279, 297 (1998). Although to establish that duty, plaintiff must satisfy "a very low threshold of proof," ibid. (quoting Coffman v. Keene Corp., 133 N.J. 581, 599 (1993)), we do not find that threshold to have been met here. It has been conceded that OSHA's HCS standards govern the obligation to warn in this matter.*fn4 Further, plaintiff has conceded the right of product distributors to rely on information and warnings provided by their up-stream suppliers when selling a product without modification. The evidence, when viewed in light of those concessions, does not permit the conclusion that any of the defendants ever had a duty to warn of the presence of trace amounts of benzene in the products that they sold, whether in the products themselves or their vapors.
While plaintiff's experts, Drs. Mehlman and Kopstein have opined otherwise, their opinions have been demonstrated to have been based upon different products, different manufacturers, or different periods of manufacture -- most occurring before the promulgation by OSHA of standards governing benzene in 1978 -- or to have been net in nature, commencing with a presumption of the presence of excess benzene and attempting, with that presumption in view, to account for defendants' contrary evidence by claiming, without proof, that it related to the wrong product, was the result of improper testing, or was otherwise faulty. Thus, although expert evidence may defeat summary judgment, Ziemba v. Riverview Medical Ctr., 275 N.J. Super. 293, 302 (App. Div. 1994), it can do so only if a genuine issue of material fact is thereby created. Here, there is none of substance.*fn5
Accordingly the orders of summary judgment entered in this matter are affirmed.