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Steven D'agostino and Patricia D'agostino v. Prudential Insurance Company

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 25, 2012

STEVEN D'AGOSTINO AND PATRICIA D'AGOSTINO, PLAINTIFFS-APPELLANTS,
v.
PRUDENTIAL INSURANCE COMPANY, SKYLER PRESS, PROGRESSIVE INSURANCE COMPANY, FORMAT PRINTING, CAPITAL PRINTING, UNION GRAPHICS, UNIMAC, PRINTERS SERVICE, MACDERMID AUTOTYPE AMERICAS, INC., DEFENDANTS, AND DELEET MERCHANDISING CORPORATION, DEFENDANT-RESPONDENT/ THIRD-PARTY PLAINTIFF-CROSS-APPELLANT,
v.
ASHLAND CHEMICAL, PRIDE CHEMICAL, UNIVAR-CHEM CENTRAL, THIRD-PARTY DEFENDANTS, AND HOUGHTON CHEMICAL COMPANY, THIRD-PARTY DEFENDANT-CROSS-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8388-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 1, 2011 - Before Judges Yannotti, Espinosa and Kennedy.

Plaintiffs Steven D'Agostino and his wife, Patricia D'Agostino,*fn1 appeal from an order that granted summary judgment to defendant Deleet Merchandising Corporation (Deleet), dismissing their products liability complaint; an order th at granted summary judgment to third-party defendant Houghton Chemical Company (Houghton), dismissing Deleet's complaint for contribution and indemnification; and an order that denied plaintiffs' motion for reconsideration.*fn2 We affirm on the appeal and dismiss the cross-appeal as moot.

In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Hodges v. Sasil Corp., 189 N.J. 210, 215 (2007) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App.Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. State v. Gandhi, 201 N.J. 161, 176 (2010); Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

Therefore, we begin by summarizing the facts in the record, viewing them in the light most favorable to plaintiff.

Plaintiff was employed in the printing industry from 1977 until 2003. In November 2005, he filed a complaint*fn3 against various companies that had employed him, i.e., Prudential Insurance Company, Skyler Press, Format Printing, Capital Printing, Union Graphics, Unimac, and fictitious defendants engaged in the printing business. In addition, he named two defendants that manufactured and distributed industrial inks and solvents/cleaners: Printers Service, whose products included "Red Magic, Blue Magic, and Craft Wash #3[,]" and Macdermid Autotype Americas, Inc., whose products included "Press Wash." Plaintiff alleged that he developed renal and basal cell carcinoma, as a result of his contact with various "inks, solvents and other toxic substances" during the course of his employment.

Plaintiff filed an amended complaint on January 11, 2008, in which he added Deleet as a defendant. In his answers to interrogatories, dated August 17, 2009, plaintiff identified three cleaning products, Red Magic X, Blue Magic X, and Craft Wash #3,*fn4 as the products distributed by Deleet to which he was exposed. However, plaintiff later conceded that Deleet did not sell Blue Magic X to any of plaintiff's employers and only sold Red Magic X and Craft Wash #3 to Unimac from January 2002 through 2005. Plaintiff was employed by Unimac from 2000 through October 30, 2002.

Plaintiff testified that he used "Red Magic" on a weekly basis during this time. However, he also stated that the "Red Magic" came from an unlabeled, clear bottle that just had a cap on it. Plaintiff identified the product as "Red Magic" based on his experience working with the product for thirty years. He stated, "I know what Red Magic is. I know what it smells like and what it does and what it looks like." Still, plaintiff testified he thought Red Magic was a generic name and that he did not know who manufactured the Red Magic he was using. Plaintiff admitted he generally could not remember how the cleaning products were labeled during his time at Unimac and further, that he did "not know the specific name or manufacturer name of any of the products to which he was allegedly exposed."

Considering the facts in the light most favorable to plaintiff for the purpose of reviewing this summary judgment decision, we view the evidence as showing that, while employed by Unimac, plaintiff was exposed to two products distributed by Deleet, Red Magic X and Craft Wash #3 (the Deleet products), for the period from January 2002 through October 30, 2002.

Plaintiff submitted an expert report by Iris G. Udasin, M.D. In describing plaintiff's occupational history, Dr. Udasin stated, in pertinent part:

He indicated that he was exposed to chemicals and inks all day, and that he would have to clean up ink from rollers and other machine parts. Additionally the buildings were all extremely noisy. He did not use any respiratory or hearing protection. He provided several MSDs [Material Safety Data Sheets]*fn5 and the chemicals used include: propylene glycol monomethylether acetate, petroleum distillates, xylene, dibutyl phtbalate, nonylphenoxypoly (ethyleneoxy0 ethonal, 2-butoxyethanol, and 1, 2, 4 trimethylbenzene).

Dr. Usadin's report was dated May 25, 2007, well before the amended complaint was filed in January 2008 that named Deleet as a defendant. She did not identify any products that contained any of the chemicals she listed in her report, and specifically did not name any products distributed by Deleet that contained any of these chemicals. No supplemental expert report was submitted after Deleet was added as a defendant or after Deleet's third-party complaint was filed.

We recite Dr. Usadin's "assessment" in its entirety:

Mr. D'Agostino is a 53 year old man with a history of almost thirty years of working hi [sic] the printing industry who was diagnosed with kidney cancer. Several studies indicate an excess of kidney and bladder cancer in the printing industry. Additional studies cite excess solvent exposure as being a risk factor for urologic cancers. While smoking may be considered a risk factor in some studies, this is not consistent throughout the medical literature. Considering the duration of his exposure in poorly ventilated buildings, with a reasonable degree of medical probability, I believe that his renal cancer was caused by his exposure to chemicals used hi [sic] his work in the printing industry.

The record also contains copies of the MSDSs reviewed by Dr. Usadin for Red Magic X and Craft Wash #3.

The MSDS for Red Magic X stated that its "reportable components"*fn6 were propylene glycol mono methyl ether acetate, aliphatic petro distillate, aromatic petro distillate, xylene, cumene and trimethylbenzene. The MSDS identified the health hazards of chronic exposure as "may cause liver and kidney problems" but also stated that it was not regulated by the Occupational Safety and Health Administration (OSHA) and was not carcinogenic. The only "medical condition[] generally aggravated by exposure" identified in the MSDS was dermatitis.

The MSDS for Craft Wash #3 indicated that its "reportable components" were aliphatic petro distillate, aromatic petro distillate and nohylphenoxpoly (ethyleneoxy) ethanol. Like Red Magic X, it was reported not to be a carcinogen. The hazards identified with chronic exposure were that it "may cause liver and kidney problems" but the only medical condition identified as "generally aggravated" by exposure was dermatitis.

After its initial motion for summary judgment was denied, Deleet filed a third-party complaint in January 2009, seeking contribution and indemnification, against four manufacturers, including third-party defendant Houghton, who obtained raw materials and blended the products on behalf of Deleet.

Houghton blended Red Magic X pursuant to an agreement with Deleet during the time period that Deleet supplied Red Magic X and Craft Wash #3 to Unimac and plaintiff was employed there.

Both Houghton and Deleet moved for summary judgment. In his written decision, the trial judge found that plaintiffs failed to show "the exposure to each defendant's product was a 'substantial factor in causing or exacerbating [plaintiff's] disease.'" The judge observed that the expert report relied upon by plaintiffs did "not mention the names of the Defendants, nor does it otherwise attempt to show that the exposure to Deleet or Houghton's products have exacerbated the disease." The court therefore granted summary judgment to both Deleet and Houghton.

Plaintiffs filed a motion for reconsideration. Deleet also argued for reconsideration in the event that the court granted plaintiff's motion. The court reiterated its prior ruling, finding that the expert report "fails to draw the necessary correlation between the chemicals listed in the MSDSs and those purportedly contained in Deleet's products." It further noted that the report "lacks the requisite degree of specificity when discussing 'chemicals used in [plaintiff's] work in the printing industry.'" Accordingly, the court denied both motions.

In this appeal, plaintiffs argue that the trial court erred in granting summary judgment because there was sufficient proof that plaintiff's exposure to Deleet products was a substantial factor in causing his illness; Dr. Udasin's report was not an inadmissible net opinion; and her report did show a causal link between Deleet's products and his illness. Deleet cross-appeals from the order of summary judgment that dismissed its third-party complaint against Houghton. After reviewing the record in light of the applicable legal principles, we are satisfied that plaintiffs' arguments lack merit. As a result, we need not address the cross-appeal.

Plaintiff's complaint against Deleet alleged that Deleet had placed a defective product into the stream of commerce (count one); had done so without adequate warnings (count two); had breached an implied warranty that the product was of merchantable quality (count three); and was liable under common law principles of negligence (count four). To establish a prima facie case of strict liability in the products liability claims, plaintiffs were required to show (1) the product was defective; (2) the defect existed when the product was distributed by and under the control of the defendant; and (3) the defect caused injury to plaintiff. See Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394 (1982); see also Becker v. Baron Bros., 138 N.J. 145, 151 (1994). The summary judgment motions challenged the adequacy of plaintiffs' proofs as to causation, an element essential to both his common law negligence claim, see Stevens

v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div. 2003) (defining the traditional common law elements of negligence as duty, breach, foreseeability and causation), and his products liability claims.

In a products liability toxic-tort action, a plaintiff must prove both (1) product-defect causation, and (2) medical causation. James v. Bessemer Processing Co., 155 N.J. 279, 299 (1998). To prove product-defect causation, a plaintiff "must demonstrate that his or her injuries were proximately caused by exposure to defendant's . . . product." Vassallo v. Am. Coding & Marking Ink Co., 345 N.J. Super. 207, 214 (App. Div. 2001) (internal quotation marks and citations omitted). "The contact between a plaintiff and the defective product must be sufficiently significant so that a reasonable jury could determine that the product was a substantial factor in bringing about the plaintiff's injury." Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 21 (App. Div. 1989). Medical causation requires proof "'that the exposure [to each defendant's product] was a substantial factor in causing or exacerbating the disease.'"

James, supra, 155 N.J. at 299 (citing Sholtis, supra, 238 N.J. Super. at 30-31). In James, supra, the Supreme Court held, [A] plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation by establishing: (1) factual proof of the plaintiff's frequent, regular and proximate exposure to a defendant's products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff's condition. [155 N.J. at 304.]

In this case, the moving parties argued that plaintiffs cannot establish either product-defect causation or medical causation. Defendants argued further that plaintiffs failed to show sufficient proof of medical causation because Dr. Usadin's report was an inadmissible net opinion.

To successfully oppose summary judgment "where there has been exposure to multiple products over an extended period of time," plaintiff must prove that "[his] exposure to defendant's product was a substantial factor causing or exacerbating the plaintiff's illness. . . ." Vassallo, supra, 345 N.J. Super. at 215 (internal citation and quotation marks omitted). We are satisfied that plaintiffs' proofs fail to meet this standard.

Dr. Usadin's report was written before Deleet was added as a plaintiff and, understandably, identified no facts in the record to establish the threshold premise that plaintiff had "frequent, regular and proximate exposure" to the product distributed by Deleet. Instead, Dr. Usadin referred to plaintiff's career of nearly thirty years in the printing industry and his exposure to chemicals and inks, including specific chemicals. Her assessment that plaintiff's renal cancer was caused by his exposure to chemicals used in the printing industry is supported only by the following:

Several studies indicate an excess of kidney and bladder cancer in the printing industry. Additional studies cite excess solvent exposure as being a risk factor for urologic cancers.

The studies relied upon are unidentified. No detail is supplied to define what is meant by an "excess" of kidney cancer or solvent exposure. Further, Dr. Usadin's references to plaintiff's exposure to the chemicals are to his thirty-year history of working in the industry. As noted, the evidence provides a much narrower window for plaintiff's exposure to product distributed by Deleet, January to October 2002. To present prima facie proof of causation, plaintiff had to present evidence that his exposure for that period of time was a substantial factor in causing his renal cancer. Neither Dr. Usadin's report nor any other evidence in the record provides support for an inference that plaintiff's ten-month exposure to products distributed by Deleet was sufficiently "frequent, regular and proximate" to be a substantial factor in causing plaintiff's illness.

Moreover, Dr. Usadin's assessment is contradicted by the very reports she relies upon. One of the purposes of the MSDSs is to "communicat[e] information concerning hazards and appropriate protective measures to employees[.]" 29 C.F.R. § 1910.2000(a)(2). The regulation sets out detailed requirements for the information to be provided on the safety data sheet. Among the categories of required information is a Description of the various toxicological (health) effects and the available data used to identify those effects, including:

(e) Whether the hazardous chemical is listed in the National Toxicology Program (NTP) Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest edition), or by OSHA. [Id. § 1910.1200, Appendix D, Table D.1, 11(e).]

The MSDSs for both Red Magic X and Craft Wash #3 reflect that neither is listed on the NTP report on carcinogens and neither has been found to be a potential carcinogen in the IARC monographs or by OSHA. Therefore, these documents refute the contention that plaintiff's exposure to Red Magic X and Craft Wash #3 caused his cancer.

"The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (internal quotation marks omitted). An expert report that "is based on a factually inaccurate and unjustifiable assertion" is worthless and "does not create a genuine issue of material fact precluding the grant of summary judgment." Brill, supra, 142 N.J. at 544; see also N.J.R.E. 703 (to be admissible, an expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing"). Because Dr. Usadin's opinion is unsupported by any factual evidence - and in fact, refuted by the very reports she relied upon - it is an inadmissible "net opinion," Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008), "to which no weight need be accorded." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). It was, therefore, manifestly insufficient to create a genuine issue of fact as to causation that would defeat summary judgment.

Affirmed.


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