June 13, 2008
BETTY ANN KEARNEY, EXECUTRIX OF THE ESTATE OF WILLIAM KEARNEY, DECEASED, AND INDIVIDUALLY, CATHERINE KEARNEY, AN INFANT BY HER GUARDIAN AD LITEM, BETTY ANN KEARNEY, AND WILLIAM KEARNEY, AN INFANT BY HIS GUARDIAN AD LITEM, BETTY ANN KEARNEY, PLAINTIFFS-APPELLANTS,
BAYWAY REFINING COMPANY, TOSCO REFINING COMPANY, PHILLIPS PETROLEUM, CONOCOPHILLIPS COMPANY, DEFENDANTS-RESPONDENTS, AND EXXON CORP., DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-365-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007
Before Judges Payne, Sapp-Peterson and Messano.
Plaintiff, Betty Ann Kearney, appeals from an order of summary judgment dismissing the wrongful death and survivorship action instituted by her on behalf of herself, her deceased husband, and her two minor children against Exxon Corporation and against ConocoPhillips and its predecessors, Phillips Petroleum, Tosco Refining Company, and Tosco's wholly-owned subsidiary, Bayway Refining Company, as failing to meet the context prong of the Millison/Laidlow exception to the workers' compensation bar set forth in N.J.S.A. 34:15-8. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177-79 (1985) and Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002).
Plaintiff's former husband, William Kearney (Kearney), was employed at the Bayway Refinery continuously from 1974 until he was diagnosed as suffering from adenocarcinoma of the esophagus in February 2001. In 1980, Kearney was promoted to management, and from 1986 to his cessation of employment, Kearney worked as a shift superintendent. In that capacity, Kearney was responsible for the operation of the entire refinery, especially during off hours; he served as incident commander for plant emergencies; and he was responsible for notifying and meeting with all state, local and federal agencies, dealing with the press, and coordinating any unit start-ups or shut-downs as the existing situation demanded. Kearney died on February 9, 2002 at the age of 49. During his employment, the Bayway refinery was first owned by Exxon, which was dismissed from this suit by order of summary judgment from which there has been no appeal. In 1993, Exxon sold the refinery to Bayway Refining, a wholly-owned subsidiary of Tosco. In April 2001, the refinery was sold to Phillips Petroleum, and in 2002, Phillips merged with Conoco to form ConocoPhillips.
ConocoPhillips has assumed the liabilities of Bayway Refining and Tosco, neither of which presently exist. However, the claims forming the basis for this appeal emanate solely from the period of ownership by Bayway Refining/Tosco. In essence, plaintiff alleges that her husband's cancer was the result of workplace exposure to volatile organic compounds (VOCs) occurring as the result of the failure by Bayway Refining/Tosco to promptly repair leaking valves at the facility.
In most circumstances, the New Jersey Workers' Compensation Act, N.J.S.A. 43:15-1 to -128, serves as a worker's sole and exclusive remedy against an employer for a work-related injury, including an occupational disease. Millison, supra, 101 N.J. at 169; N.J.S.A. 34:15-8 (surrender of other remedies); N.J.S.A. 34:15-31 (occupational diseases). However, N.J.S.A. 34:15-8 provides a limited exception to the exclusive-remedy provisions of the Act if the plaintiff can demonstrate that the injury or death results from an "intentional wrong."
The application of the intentional wrong exception was articulated by the Supreme Court in its decisions in Millison and Laidlow, where it was established that, to avoid the workers' compensation bar, a plaintiff must demonstrate that (1) the employer knew that its acts were substantially certain to result in injury or death (the conduct prong) and (2) the resulting injury and the circumstances of its infliction on the worker were "(a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize" (the context prong). Laidlow, supra, 170 N.J. 617; see also Millison, supra, 101 N.J. at 177-79.
As the Court stated in Laidlow:
In general, the same facts and circumstances will be relevant to both prongs of Millison. However, as a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar.
Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted. [Laidlow, supra, 170 N.J. at 623.]
In a thoughtful written opinion granting summary judgment to defendants in this matter, the motion judge concluded that plaintiff had offered evidence sufficient to raise an issue of fact as to whether the conduct prong had been met, requiring trial on that issue, but that because evidence sufficient to meet the context prong was absent, summary judgment was appropriate.
On appeal, plaintiff claims that (1) summary judgment should not have been granted to Tosco or Bayway Refinery because no motion was made on behalf of either; (2) summary judgment was premature because plaintiff sought further discovery; and (3) the conduct of Tosco and Bayway Refinery met both prongs of the Millison/Laidlow test. We disagree and affirm.
We address plaintiff's first two arguments only briefly, finding them of insufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
Because Kearney's illness manifested in 2001, and his employment essentially ceased at that time, as a factual matter, plaintiff cannot establish direct liability on the part of Phillips Petroleum or ConocoPhillips; liability, if any, can exist in the factual circumstances of this case (the conduct of Exxon having been excused) only as the result of the actions of Bayway Refining, operating as a subsidiary of Tosco. Although only ConocoPhillips answered plaintiff's complaint, it did so in its capacity as the successor to Bayway Refining, Tosco and Phillips, and it has acknowledged that it would be subject to vicarious successor-corporation liability should the conduct of its predecessors be found actionable. Throughout the discovery phase of the action, the parties operated with the tacit understanding that ConocoPhillips was responding not only on its own behalf but also on behalf of the predecessor entities for which it retained potential liability. Because Kearney's employment at Bayway spanned the period of the refinery's control by Bayway Refining from 1993 to 2001, as a practical matter, the discovery that was directed to ConocoPhillips, and that entity's ensuing summary judgment motion and the evidence supporting that motion focused upon that period of time. In these circumstances, we find no fault with the determination of ConocoPhillips to seek summary judgment only in its own name and to offer a statement of uncontested material facts in that capacity. It was clear to all, and most particularly to the motion judge, which entities were the focus of plaintiff's claims.
We further find no abuse of discretion on the part of the motion judge when he, in effect, denied the further extension of discovery sought by plaintiff by granting summary judgment to defendants, rendering such an extension moot. At the time, factual discovery had been extended on numerous occasions,*fn1 and no discovery requests upon ConocoPhillips remained pending. ConocoPhillips had provided answers to three sets of interrogatories, produced 50,000 documents, and six of its employees had given their depositions. Although plaintiff expressed a need for additional discovery at the time of summary judgment, her attorney at the time attested in a certification in support of his firm's withdrawal from representation that she had never reviewed the 12,643 pages of documents that had been offered by ConocoPhillips in a supplemental production in January 2006. Moreover, plaintiff failed to specify to the motion judge or to us what documents or other discovery she sought or their relevance to the issue presented. Nothing in the record before us suggests that plaintiff was in any way hindered in her ability to prove her case by either the court or the parties. Wilson v. Amerada Hess Corp., 168 N.J. 136, 252-54 (2001). We thus reject plaintiff's claims that summary judgment was granted improperly and prematurely.
Plaintiff also argues on appeal that the evidence produced in opposition to summary judgment not only satisfied the conduct prong of the Millison/Laidlow test, as found by the motion judge, but also its context prong. In this regard, plaintiff claims that Bayway Refining/Tosco engaged in deceptive conduct that rendered Kearney's illness more than a fact of life of industrial employment that the Legislature sought to immunize from tort liability. In particular, plaintiff notes that for purposes of the motion ConocoPhillips has conceded that oil refineries can cause esophageal cancer.*fn2 She then contends Bayway Refining/Tosco "concealed the dangers of exposure to volatile organic chemicals from its employees and deceived relevant regulatory agencies with regard to the extent of equipment leaks and the resulting exposures." In her brief, plaintiff argues:
In four ways, it was apparent that the exposures experienced by William Kearney were not a fact of life of industrial employment, and were well beyond anything the Legislature intended the Workers' Compensation Act to immunize. First, ConocoPhillips*fn3 misled its employees about the dangers of chemical exposures. Second, Tosco discouraged, and in fact punished, candid reporting of safety concerns. Third, Defendants deceived relevant regulatory agencies about the extent of exposures from its facility. Finally, in an unrebutted report, Plaintiff's expert, Dr. David Rigle, opined as to the wanton behavior of Defendants.
We address the evidence supporting plaintiff's contentions in turn.
A. Bayway Refining Misled Its Employees.
In support of her claim that Bayway Refining misled its employees about the risks of exposures, plaintiff relies on the deposition of Curt Greder, president of the refinery's Teamster's Union Local 877 from approximately 1996 to November 2005. In the course of that deposition, Greder indicated that he was unaware of any information suggesting that exposure to substances at the refinery could cause esophageal cancer, although he noted that the company had "come out with something that stated that there's no correlation" - a finding that, as we have previously noted, was set forth in studies of mortality at the facility commissioned by ConocoPhillips and conducted by ExxonMobil Biomedical Sciences in 2003 and the National Institute of Safety and Health (NIOSH) in 2005. Nonetheless, Greder was well aware, for instance, that benzene, found at the refinery, was a carcinogen and that other substances found there were "bad actors."
Greder additionally testified that, during Exxon's ownership of the facility, morbidity and mortality statistics were provided to the union as part of the union contract. After Bayway Refining/Tocso purchased the refinery, but prior to Greder's presidency, the right to those statistics was "bargained away," and while Greder was union president, the union had gone to the bargaining table "at least once" to ask for the statistics under Tosco. According to Greder, "it was told to us they're not really necessary to have, you don't need them." The statistics were not provided.
However, Greder additionally testified that the subject of deaths and illnesses at the facility was actively discussed by employees. He acknowledged that material safety data sheets (MSDS)*fn4 were available to employees, and he noted in particular that employees could access the forms on the plant's yearly safety day. Additionally, Greder testified that a fugitive emission testing program existed. He stated:
Well, the fugitive emissions - I don't know what you'd call it - project or - it's an ongoing project that's - when that was brought into existence, people were trained in the operation of fugitive emission testing equipment, Mobile Fugitive Emission Testing Equipment. And they went out to the various units and tested the - the valves for leaks.
Greder stated that the emissions testing had initially been conducted by refinery employees, but was outsourced after Bayway Refining/Tosco assumed control.
Greder additionally testified that the facility had been equipped since 1977 with an alarm system to detect leaks, and that he was one of the employees responsible for repairs to that system. Although he was presently aware of a hydrogen sulfide alarm that had not operated properly for several months because of parts problems, that was not something that happened often. Under Exxon, Greder testified, the facility would be shut down every three or four years for a "gold-plated" turn-around when everything was fixed. Once Bayway Refining/Tosco took over, those turn-arounds ceased. Maybe, Greder speculated, "the industry has chosen not to do that anymore." However, Greder stated that individual unit shutdowns occurred.
Plaintiff additionally relies on the testimony of William Reilly, a refinery employee from 1969 to 2003. Reilly testified that the repair of fugitive leaks was governed by regulations that required an initial attempt to repair within the first five days of discovery of the leak, up to fifteen days for a second attempt, and placement of the valve on the "turn-around list" thereafter if it could not be repaired. Valves on the turnaround list were given tags that told workers that the valve was leaking, the date the leak was discovered and "any information that you needed to know."*fn5 If the leak were benzene, a substance upon which the company "put a lot of emphasis," the area was roped off and respirator use was required.
Reilly was not aware of any connection between the substances that could have leaked from the valves and esophageal cancer until rumors started to spread a couple of years before Reilly stopped working in 2003. However, he was aware that exposure to benzene caused leukemia. Additionally, Reilly testified that it was well-known that exposure to hydrogen sulfide could "kill you right on the spot," and that there were "a lot of precautions given to that." Additionally, he acknowledged that precautions were in place for carbon monoxide, caustic soda, nitrogen, chlorine, non-asbestos insulation, asbestos, lead, and light hydrocarbons. Reilly also confirmed that MSDS sheets were available to employees. "[T]hey had the books right on every unit. The operators were familiar with it. . . . [T]hey were all over the place."
Plaintiff does not identify a particular substance, present at the refinery, that has been causally connected to esophageal cancer. Thus, she cannot pinpoint a process as to which additional protection was required or establish improper safety procedures implemented in connection with that process.
B. Tosco Discouraged Candid Reporting of Dangerous Conditions
Plaintiff relies for support of her claim that Bayway Refining/Tosco discouraged reporting of dangerous leaks upon information allegedly given to her by a refinery employee, to which plaintiff testified in her deposition. In this regard, she stated that Bayway employee Richard Jennings, whose position she did not know, had reported to her that "if these health issues were reported [by employees] to management above him, that it would reflect in their ranking and their salaries." Jennings additionally stated that an employee known as "Corkie" would use his power in ranking and that, "if you complained about any environmental issues, that it would be reflected in your salary increases and your bonuses and your ranking, which could mean promotions."
The statements reported by plaintiff constitute hearsay, N.J.R.E. 802, that plaintiff has not demonstrated is admissible in evidence. We have held that "evidence submitted in support of a motion for summary judgment must be admissible, Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995), and evidence in opposition to such a motion obviously must be admissible, as well.
C. Tosco Deceived the Department of Environmental Protection
Plaintiff notes that fugitive process emissions are regulated by the New Jersey Department of Environmental Protection, which in N.J.A.C. 7:27-16.18(f) requires the owner and operator of a petroleum refinery to implement a leak detection and repair program, to repair leaks in accordance with the timetables set forth in N.J.A.C. 7:27-16.18(c) and (d), and to report on a quarterly basis information on all components detected to have a regulated leak.*fn6 An incomplete sample of such reports can be found in the record. Plaintiff has offered no competent evidence to suggest that Bayway Refining/Tosco was noncompliant with its reporting requirements, or that it was ever cited for failure to report or for failure to comply with leak detection and repair regulations.
According to plaintiff, she was told by her deceased husband, as well as by Ted Worthington and John Horvath, both of whom are deceased, that once Tosco assumed ownership of the refinery it commenced underreporting fugitive emissions, that she overheard her husband and Worthington talking about second-guessing of maintenance by upper management, and that her husband commented, non-specifically, that "[t]hey're going to kill somebody." Plaintiff gave no details of any sort with respect to the statements of her husband and Worthington regarding underreporting.
Plaintiff testified in her deposition that, in 2003, Horvath also discussed the underreporting of fugitive emissions with her, stating:
That everybody knows, the testing is done, basically that it's a scam, from the training that they get to the equipment they use, that sometimes the men, when it was done by the refinery's own employees, wouldn't even, it was an overtime job. They could just run their pen down the page and go find someplace to go sleep and everyone knew. Everyone encouraged them not to find it because it only meant more work for everybody, budgets would get out of line, bonus program.
Horvath also allegedly stated:
That the refinery intentionally looks the other way. They don't want to find these leaks. They don't want to slow down production. It's common knowledge. That they went in there and told everybody there would be no more gold plated turnarounds.
Horvath did not identify who told him about the change in maintenance policy. The following colloquy also occurred regarding the source of Horvath's information.
Q: Can you identify for me from your conversation with Mr. Horvath a particular person at Tosco who supposedly did not want to find leaks to slow down production?
A: There was one of the refinery managers. I'd have to look at the list of refinery managers to be able to tell you which one.
Q: Is this a name that Mr. Horvath gave you?
A: A name that had came up more than once, but yes, Horvath was one of the people that said it and then somebody else said the same name.
The manager was never identified.
Later in her deposition, plaintiff retracted her statement that Horvath had told her that employees failed to conduct tests while indicating that they were performed, stating that a person named Jennings had given the statement - "I think it was Jennings" - a person whose first name plaintiff did not know. But then, the following colloquy occurred:
Q: Okay. So Mr. Horvath allegedly told you that the supervisor, whose name you don't know, knew what was happening was that the union employees were not really doing the testing but were falsifying the paperwork?
A: Yes. And that it was known by the management.
Q: Who in management?
A: I don't know who it is. But I'm sure if you find out who supervised them, I'm sure it's an answer you can find out.
Still later, plaintiff also denied that Horvath had informed her of inadequate training and equipment to detect leaks. She also answered "no" when asked: "Did [Horvath] ever tell you that the company tested for fugitive emissions, got results and didn't report them to the government?"
On appeal, plaintiff claims that all of the foregoing hearsay is admissible pursuant to N.J.R.E. 804(a)(4) as constituting statements by witnesses unavailable as the result of their death. However, N.J.R.E. 804(b)(6) only recognizes as evidential "a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy." Our review of the record satisfies us that none of the above statements would be admissible, either because they were not based upon first-hand knowledge, or because they were not trustworthy. In the latter respect, we are convinced of plaintiff's good faith in bringing her claims and of the extent of her endeavors to prove its merits. However, a fair reading of plaintiff's deposition transcript discloses not only plaintiff's bias, but also her inability to accurately convey the details of information that she had allegedly obtained in the course of her extended investigation. The summary of plaintiff's deposition testimony regarding the statements of Horvath is illustrative of this point. Further, plaintiff has not demonstrated the admissibility of the statements attributed to Jennings, which constituted inadmissible double hearsay, N.J.R.E. 805, reported by one who has not been shown to be deceased.
In addition to the statements of deceased witnesses and Jennings, plaintiff also relies in support of her contention that Bayway Refining/Tosco deceived the DEP upon the statement of Curt Greder that "gold-plated" turnarounds ceased when Exxon sold the refinery. Finally, she relies upon a discussion at the deposition of the refinery's regulatory and engineering services manager, Hank Van Handle, regarding a 2003 Mid-Atlantic Regional Management Association (MARMA) report that disclosed that in the years 1999, 1000 and 2001, the refinery had the highest emissions in the region. Van Handle testified that the number resulted from conservative estimating methods employed by the refinery in producing data for use in the report, its size in comparison to other refineries whose emissions were reported, and the inclusion of storage tanks and two storage terminals. Moreover, the authors of the MARAMA report stated:
These variations [in emissions] are not unexpected, as no two refineries are alike. Refineries differ in both size and by the type of separation, conversion, and treatment processes used. The emissions at a particular refinery are determined by the composition of the crude oil received and the chosen slate of commodities produced (i.e., gasoline, kerosene, fuel oil, chemical feed stock, etc.).
In addition to the physical differences in refineries, another explanation for the variability in refinery VOC emissions is differences in emission estimation methodologies.*fn7
Following an "uproar" regarding the report, Van Handle testified that the refinery submitted revised data, utilizing "more sophisticated and more precise estimating tools," that brought the refinery's emissions into line with those of other refineries. Although Van Handle stated that the revised data was "pro-actively submitted to the state," nothing suggests any inaccuracy in the revised data, and no punitive or penalty consequences stemmed from the submission of either report.*fn8
D. Report of Plaintiff's Expert, Dr. David Rigle, M.D.
In opposition to summary judgment and on appeal, plaintiff also offers the report of her expert, David Rigle, M.D., who opined that "Bayway excessively exposed Mr. Kearney knowingly" to carcinogenic chemicals, demonstrating a "reckless disregard for his life." Dr. Rigle also stated in the concluding section of his report:
The wanton behavior displayed by Bayway Refinery is evident. For example, in 1998, of the 500 facilities in New Jersey which filed data, Bayway Refinery was the fourth highest releaser of toxic chemicals into the environment. Additionally, the EPA report on toxic releases to air, water and land from 1998 demonstrates that Bayway Refinery released 2.1 million pounds of benzene into the air, the second highest in New Jersey of 582 facilities.
Dr. Rigle gives no support for his claim of wanton behavior on the part of Bayway Refining/Tosco in his report, and he did not supplement that report after its inadequacies were recognized by plaintiff and defendants, alike.
Plaintiff concedes that Dr. Rigle's "assertion was indeed conclusory and possibly a net opinion," but she claims that, because defendants declined to take the doctor's deposition, they have waived such an objection. We disagree, finding no legal support for the argument that a defendant must explore the bases for an opposing expert's conclusory opinion before utilizing its lack of factual foundation in support of summary judgment. In this regard, we note that we are not bound by the Law Division opinion in Ferrante v. Sciaretta, 365 N.J. Super. 601, 609 (2003), upon which plaintiff relies to support her argument that discovery must occur before a net opinion objection can be raised. Moreover, the decision in Ferrante did not arise in a summary judgment context. Rather, the court's determination that defendants "ha[d] no standing" to claim that plaintiff's expert's opinion was net in nature occurred in the far different context of plaintiff's use, with ample notice and no prior objection, of an expert's opinion in a post-judgment motion to establish the negative tax consequences of her lump-sum back- and front-pay damage award in a discrimination case, and it appears to have been based on principles of estoppel that are inapplicable here. We likewise distinguish the other decision upon which plaintiff relies, McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987), a case in which we reversed the determination of a trial judge to limit the testimony of defendant's expert to a rebuttal of the claims of the expert upon whom plaintiff relied, finding that determination to have been fundamentally unfair in circumstances in which the foundation of the opinion of the defense expert could be explored on cross-examination. The procedural context of the present matter in no respect resembles that of McCalla.*fn9
Our review of the foregoing facts, offered in support of plaintiff's position, satisfies us that the motion judge was correct in determining as a matter of law that plaintiff did not meet the context prong of the Millison/Laidlow test. We accept, for purposes of our analysis, plaintiff's claims that Bayway Refining/Tosco had knowledge that excess cancer-causing fugitive emissions were emanating from its facility, thereby endangering its employees. We also accept plaintiff's assertion that there was a qualitative difference between Exxon's gold-plated turnarounds and the maintenance practices adopted by Bayway Refining/Tosco. However, we cannot meaningfully distinguish this conduct from DuPont's knowing exposure of its employees to asbestos - conduct that the Millison Court found insufficient to overcome the workers' compensation bar. As the Court stated there:
In the face of the legislature's awareness of occupational diseases as a fact of industrial employment, we are constrained to conclude that plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit. [Millison, supra, 101 N.J. at 179.]
Plaintiff seeks to avoid Millison's holding by arguing that Bayway Refining/Tosco engaged in deceptive conduct that removes its actions from the protections of workers' compensation. In that regard, plaintiff relies on the fact that morbidity and mortality studies were not circulated after Bayway Refining/Tosco took over the facility. However, she does not refute the fact, evident from the testimony of witnesses sympathetic to her position as well as others, that workers at the refinery were well aware of the presence of cancer-causing agents on the premises and of the concomitant need for protection from their effects. She is likewise unable to refute evidence of the availability of MSDS sheets to facility employees. Without doubt, the evidence produced in this case reveals the refinery to be a dangerous place. However, we do not find from plaintiff's evidence, viewed in a light most favorable to her position, that the employees were deceived with respect to that danger. We likewise find the competent evidence insufficient to support a claim that fugitive emissions were intentionally underreported or that any other form of regulatory deception occurred.
We thus conclude that plaintiff has failed to demonstrate that the conditions to which Kearney was exposed were more than a fact of life of industrial employment and beyond anything the Legislature intended the Workers' Compensation Act to immunize. We decline to address whether plaintiff's proofs met the conduct prong of the Millison/Laidlow test, finding such an analysis unnecessary to the resolution of this appeal.