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Buynie v. Airco

August 10, 2007

STEPHEN BUYNIE, PETER MARTORANA, MELVIN BANAS, NICHOLAS LEWIS, JR., MIKE RAPAVI AND JOE GENARDI, PLAINTIFFS-APPELLANTS,
v.
AIRCO, INC.; AIR PRODUCTS AND CHEMICALS, INC.; ALLSTATE INSURANCE COMPANY; HONEYWELL SSEC AND AS SUCCESSOR TO ALLIEDSIGNAL, INC.; THE AMERICAN CHEMISTRY COUNCIL, F/K/A THE CHEMICAL MANUFACTURERS ASSOCIATION AND THE MANUFACTURING CHEMISTS ASSOCIATION; B.F. GOODRICH COMPANY; BORDEN CHEMICAL, INC.; BRIDGESTONE/FIRESTONE, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE FIRESTONE TIRE & RUBBER COMPANY AND FIRESTONE PLASTICS COMPANY, A DIVISION OF THE FIRESTONE TIRE & RUBBER COMPANY; CHEVRON U.S.A., INC., AS SUCCESSOR TO GULF OIL COMPANY; CONDEA VISTA COMPANY; CONOCO, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO THE CONTINENTAL OIL COMPANY AND THOMPSON-APEX COMPANY AND CONOCO CHEMICALS; THE DOW CHEMICAL COMPANY, IN ITS OWN RIGHT AND AS SUCCESSOR TO UNION CARBIDE CORP.; ETHYL CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF VIRGINIA; GENCORP, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO GENERAL TIRE AND RUBBER COMPANY; POLYONE CORPORATION, F/K/A THE GEON COMPANY; GEORGIA GULF CORPORATION; THE GOODYEAR TIRE AND RUBBER COMPANY; GULF OIL CORPORATION; MONSANTO COMPANY; NEW JERSEY MANUFACTURERS INSURANCE CO.; OCCIDENTAL CHEMICAL CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF NEW YORK, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO OCCIDENTAL ELECTROCHEMICALS CORPORATION, HOOKER CHEMICALS & PLASTICS CORPORATION, HOOKER CHEMICAL CORPORATION, DIAMOND SHAMROCK CHEMICALS COMPANY, DIAMOND CHEMICALS COMPANY, DIAMOND SHAMROCK CORPORATION, AND DIAMOND ALKALI COMPANY; OCCIDENTAL ELECTROCHEMICALS CORPORATION; OLIN CORPORATION; PANTASOTE, INC.; PPG INDUSTRIES, INC.; RHONE-POULENC, INC., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO STAUFFER CHEMICAL COMPANY; SHELL OIL COMPANY; SHINTECH INC.; LIBERTY MUTUAL CORPORATION; THE SOCIETY OF THE PLASTICS INDUSTRY, INC.; TENNECO INC.; PACTIV CORPORATION; EPEC POLYMERS, INC., AS SUCCESSOR TO TENNECO OIL COMPANY; SENTRY INSURANCE COMPANY; UNION CARBIDE CORPORATION; UNIROYAL, INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO U.S. RUBBER COMPANY; WHITTAKER CORPORATION, AS SUCCESSOR TO GREAT AMERICAN CHEMICAL CORPORATION; AND ZENECA, INC., F/K/A ICI AMERICAS, INC., A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF DELAWARE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5502-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 25, 2007

Before Judges Cuff, Fuentes and Baxter.

Plaintiffs seek establishment of a fund for the creation of a medical monitoring program to detect occupational diseases, including a rare form of liver cancer, caused by exposure to vinyl chloride during their employment at Pantasote, Inc. in Passaic. Plaintiffs commenced suit against their former employer, Pantasote, a host of suppliers of vinyl chloride, and workers' compensation carriers. Plaintiffs contend that defendants knew of the danger posed by vinyl chloride to workers at the Pantasote facility and conspired to fraudulently conceal the risks of exposure. They appeal from an order denying their motion for class certification and transferring the matter to the Division of Workers' Compensation. We affirm the order denying class certification because the proposed class lacks the cohesiveness required for class certification. We reverse the order transferring the case to the Division of Workers' Compensation except the claim for medical monitoring from occupational exposure to vinyl chloride against their employer and remand for further proceedings.

Pantasote operated a facility in Passaic where it manufactured poly vinyl chloride (PVC) products, including PVC resins, vinyl film and sheeting, plasticized compounds and thermoformed products. It began using poly vinyl in various processes in 1956. Poly vinyl film and sheeting were sold for use in a wide variety of products, including household accessories, wall coverings, apparel, and watertight liners. Pantasote manufactured "panta-packs" or rigid packing trays and sold this packing material to fruit packers and other food distributors. Pantasote used vinyl chloride monomer (VCM) from 1956 to 1984, when the Pantasote facility was sold.

An April 1992 Environmental Protection Agency document describes the hazards of VCM. It is described as "a colorless gas with a mild sweet odor" and possessing an "odor threshold" of "3,000 ppm [parts per million]." Occupational exposure "may occur in those workers concerned with the production, use, transport, storage, and disposal of the chemical." It "can be detected in urine and body tissues, but the tests are not reliable indicators of total exposure."

Under the heading "Health Hazard Information," the document reported that the acute effects of high levels of vinyl chloride exposure to humans through inhalation include "dizziness, drowsiness, headaches, and giddiness." Exposure to extremely high levels "has caused loss of consciousness, lung and kidney irritation, and inhibition of blood clotting in humans and cardiac arrhythmias in animals." Listed among non-cancerous chronic effects in "[a] small percentage of individuals occupationally exposed to high levels of vinyl chloride in air" is the development of a set of symptoms termed "vinyl chloride disease," which is characterized by Raynaud's phenomenon (fingers blanch and numbness and discomfort are experienced upon exposure to the cold), changes in the bones at the end of the fingers*fn1 , joint and muscle pain, and scleroderma-like skin changes (thickening of the skin, decreased elasticity and slight edema).

As for cancer risks, "[i]nhaled vinyl chloride has been shown to increase the risk of a rare form of liver cancer (angiosarcoma of the liver) in humans." It has been classified by the Environmental Protection Agency (EPA) "as a Group A, human carcinogen."

According to a report submitted by Doctor Philip Cole, one of defendants' experts, "VCM first was recognized as a human carcinogen in early 1974 as a result of the report of cases of [angiosarcoma of the liver] among employees at a manufacturing facility in Louisville, Kentucky." The Occupational Safety and Health Administration (OSHA) regulations adopted in 1975 established a permissible exposure limit to vinyl chloride as one ppm averaged over an eight-hour period. An "action level" was set at "a 0.5 PPM concentration on a time weighted average 8 hour period." In 1975, OSHA "mandated physical examinations and liver function tests of current employees whose exposure to vinyl chloride exceeded 0.5 ppm, time-weighted average, for an eight-hour workday."

Prior to 1974, engineering and safety controls at the Pantasote Passaic facility included: a closed system for PVC polymerization in Plants 1 and 2; blast-proof walls around the reactor areas; a sprinkler or deluge system and ceiling and side-mounted exhaust fans. Ventilation systems and hooded exhausts were also installed in buildings where calendering, compounding and dicing operations took place. After reports surfaced in the mid-1960's linking vinyl chloride exposure to AOL, Pantasote installed a hydraulic reactor washing system in Plant 2. As early as 1964, Pantasote made an effort to restrict access to the reactor areas and tank farms to essential personnel.

On October 17, 1974, a representative from the National Institute of Occupational Safety and Health (NIOSH) visited the Passaic facility. The visit report stated that Pantasote had an active health, safety and sampling program and was interested in cooperating with a NIOSH survey program. Someone from Pantasote expressed a concern that vinyl chloride levels may be higher than the norm.

An August 1975 NIOSH report stated that "the potential for exposure to vinyl chloride is considerably higher at [Pantasote] than for the other poly vinyl chloride [facilities]." This situation seemed to be related to the proximity of a resin plant.

By the mid-1970s, medical surveillance, including hand x-rays, physicals and blood work, were conducted on Plant 1 and Plant 2 employees. Respirators were available. At this time, Pantasote also instituted industrial and engineering processes to reduce VCM exposures and installed an automatic monitoring system. Signs warning of VCM dangers were posted and bags containing resin were marked with warnings.

On June 23, 2003, plaintiffs Stephen Buynie, Peter Martorana, Melvin Banas, Nicholas Lewis, Jr., Mike Rapavi and Joe Genardi filed a third amended complaint in which they alleged that they were the victims of a conspiracy by their employer, various suppliers and manufacturers of vinyl chloride, trade associations and the vinyl chloride industry, as well as Pantasote's former workers' compensation carriers, to downplay the dangers of vinyl chloride. They sought to certify a class of all Pantasote workers, except full-time office workers, who worked at the Passaic facility for at least one year from 1960 to 1974.

Plaintiffs moved for class certification; the group of defendants referred to as the chemical defendants moved to transfer the complaint to the Division of Workers' Compensation. In an opinion dated January 27, 2006, the motion judge denied class certification and granted the motion to transfer the matter to the Division of Workers' Compensation for adjudication of the claims of the six named plaintiffs for medical monitoring arising from their alleged exposure to vinyl chloride during employment.

In his opinion, the judge found that the four prerequisites for class certification contained in Rule 4:32-1(a), i.e., (1) numerosity, (2) common questions of law and fact, (3) typicality of claims and defenses, and (4) adequacy of representation, were met. The judge held, however, that class certification was not warranted under Rule 4:32-1(b)(2) (hereafter referred to as (b)(2)), or under Rule 4:32-1(b)(3) (hereafter referred to as (b)(3)). He noted that the essence of a (b)(2) class was cohesiveness, which requires homogeneity of the class members' claims in order to maintain class manageability. He also held that a cohesiveness analysis is more rigorous than the initial commonality inquiry. The judge then found that the proposed class was not cohesive because the required relief of medical monitoring requires an examination of each class member's exposure history. Moreover, the passage of time between commencement and cessation of exposure raised a question about the risk of any disease process becoming manifest. Finally, the defendants are discrete entities accused of discrete misconduct with disparate claims to justify relief.

The judge also held that the class was not amenable to certification under (b)(3). He cited an overwhelming number of individual issues, legal claims and defenses.

I.

Here, the judge found, and defendants concede, that the proposed class satisfies the first tier of requirements for certification of a class action: numerosity, commonality, typicality, and adequacy of representation. R. 4:32-1(a). The issue in this appeal is whether plaintiffs satisfied the requirements of Rule 4:32-1(b)(2). They do not challenge the denial of class certification for medical monitoring pursuant to Rule 4:32-1(b)(3); they do contend, however, that they satisfied the criteria for certification of their punitive damage claim pursuant to Rule 4:32-1(b)(3).

On appeal, plaintiffs claim that the judge applied improper standards in his ruling. They also assert that the judge decided disputed issues of fact, including accepting and rejecting expert opinions proffered by the opposing parties.

"The class action is an 'exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103 (2007) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 2558, 61 L.Ed. 2d 176, 193 (1979). Rule 4:32-1 governs class actions in this State. Although the class action device is considered an exception to the manner in which litigation is prosecuted, the rule is liberally construed. Ibid. Such an approach furthers the purpose of ...


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