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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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