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Kelly v. Polylite Roof Decks

January 15, 2010

RICHARD G. KELLY AND SANDRA M. ABEL-KELLY, PLAINTIFFS-APPELLANTS,
v.
POLYLITE ROOF DECKS, INC.; E.R. BARRETT, INC.; BARRETT COMPANY; BFS DIVERSIFIED PRODUCTS, L.L.C.; FIRESTONE BUILDING PRODUCTS COMPANY; HONEYWELL INTERNATIONAL, INC.; KARNAK CORPORATION; OWENS-CORNING; TRUMBULL ASPHALT COMPANY; AND W.P. HICKMAN SYSTEMS, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8739-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2009

Before Judges Grall, Messano and LeWinn.

Plaintiffs Richard G. Kelly and his wife, Sandra M. Abel-Kelly, appeal from the July 25, 2008 order of the Law Division that dismissed with prejudice their second amended complaint against defendants Polylite Roof Decks, Inc. (Polylite); E.R. Barrett, Inc. and Barrett Company (collectively, Barrett); BFS Diversified Products, L.L.C. (BFS); Firestone Building Products Company (Firestone); Honeywell International, Inc. (Honeywell); Karnak Corporation (Karnak); Owens-Corning; Trumbull Asphalt Company (Trumbull); and W.P. Hickman Systems, Inc. (Hickman) (collectively, defendants), for failure to comply with a previously-entered case management order.*fn1 Having considered the record and arguments of counsel, we reverse.

I.

This litigation has proceeded for more than six years. Plaintiff's second amended complaint, filed in February 2004, generally alleged that while working as a roofer for defendants Polylite and Barrett, he developed acute myelogenous leukemia (AML) from occupational exposure to products manufactured by the other defendants that contained carcinogens, including benzene.*fn2

Discovery has been ongoing, and the litigation has been actively case-managed by a series of judges with numerous case management orders entered as a result.

One such order required plaintiff to produce, by October 29, 2003, the reports of any treating physicians or experts demonstrating a nexus between "exposure to substances contained in roofing products" used by plaintiff during his employment with Barrett, and the onset of his disease. A second case management order extended the deadline for experts' reports, but required plaintiff to complete discovery directed at the manufacturer defendants "as to the issue of causation" by November 15, 2003.

On November 28, 2003, plaintiff produced the report of Dr. Richard J. Hamilton. After review of plaintiff's medical records, the Material Safety Data Sheets (the MSDS) provided by his employers, transcripts of plaintiff's deposition, and various scientific literature, Hamilton opined that AML was "a specific form of cancer that can be caused by chemical exposure, and is well described as a result of workplace exposure to benzene." He further concluded that plaintiff's "employment as a roofer exposed him to chemical carcinogens via the lungs . . . and skin . . . , as well as by ingestion (fine dust and debris particles entering the [gastro-intestinal] tract during swallowing)." Noting that coal tar fumes and dust contain benzene, toluene, xylene, and other chemicals, and that benzene was a fractional component of certain roofing adhesives, Hamilton stated that certain Honeywell and Hickman products contained coal tar. He concluded that after being diagnosed with AML, plaintiff's clinical course was "consistent with a chemically induced leukemia" and, within a reasonable degree of medical certainty, "his AML was the result of exposure to environmental carcinogens." Hamilton acknowledged that he could not "be medically certain which specific substance was the source of carcinogens . . . ."

During the ensuing months of early 2004, plaintiff entered into a series of voluntary dismissals without prejudice against several of the manufacturer defendants. However, in November 2004, plaintiff filed a substitution of attorney. After additional discovery, on September 2, 2005, plaintiff moved to reinstate the complaint against all manufacturer defendants previously dismissed. The notice of motion was accompanied by the certification of Melvyn J. Kopstein, Ph.D.

"[U]tilizing materials in the peer[-]reviewed scientific literature, government . . . documents and websites, and textbooks and reference manuals in the field of chemistry and chemical engineering[,]" Kopstein noted that although the MSDS from plaintiff's employer uniformly neglected to list benzene as an ingredient in any of these manufacturers' products, other industrial-grade "petrochemicals" such as toluene, xylene and hexane, all of which contain benzene, were listed as components of the products. Kopstein opined, within a "reasonable degree of scientific certainty," that plaintiff had experienced "high occupational exposure" to several products containing benzene during his employment with Barrett. Plaintiff's motion to restore the complaint against previously dismissed defendants was granted.

After a January 31, 2007 telephonic case management conference, plaintiff submitted a proposed order "agree[ing] to serve . . . expert reports describing defendants' specific causation no later than . . . April 2, 2007." On April 9, plaintiff served all defendants with the report of Dennis M. Stainken, Ph.D., a toxicity expert. Stainken had reviewed plaintiff's deposition, medical records, the MSDS of several products manufactured by defendants, and several scientific articles regarding studies that linked asphalt, coal tar, polycyclic aromatic hydrocarbons, and benzene to AML. Noting that plaintiff worked in daily proximity with "materials containing leukemogens and carcinogens[,]" Stainken opined that "[p]hysical exertion has been recognized as a factor that can influence the inhalation and intake of chemicals as the depth and frequency of breathing alters to accommodate bodily exertions," and that plaintiff's "expos[ure] to multiple agents concurrently" increased the risk. Stainken concluded "with a reasonable degree of scientific certainty" that plaintiff experienced a threshold of benzene exposure during his employment with Barrett that was a causal factor in his development of AML.

Further case management orders were entered as discovery continued. On September 10, 2007, plaintiff served notice on defendants that he had "preliminarily determined to sample defendants' products and conduct constructive testing." On October 15, apparently in response to disagreements as to the production of samples, the judge entered a tenth case management order requiring all parties to convene by November 16, 2007 "to assess ...


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