The opinion of the court was delivered by: Hon. Jerome B. Simandle Steele,
This action arises from Plaintiff Brian Steele's ("Plaintiff") alleged exposure to toluene while transporting print shop towels from Defendant Quad Graphics ("Quad" or "Defendant") to a laundering facility. This matter is currently before the Court on two motions for reconsideration of this court's March 29, 2012 Opinion and Order. In that opinion, the court held that the Plaintiff could not base his negligence claim against Quad by arguing that free liquid toluene was present in the drums of print shop towels being transported because the Plaintiff presented no evidence to support this allegation. However, the court allowed Plaintiff to proceed with his negligence claim against Quad based on Quad's failure to properly seal the drums with the print shop towels prior to transport. In addition, the court precluded testimony of all of Plaintiff's experts with the exception of one of Plaintiff's medical experts and the court struck Plaintiff's affidavit pursuant to Fed. R. Civ. P. 37.
Plaintiff Brian Steele's motion for reconsideration is limited to the holding which bars Plaintiff from proceeding with its theory of negligence against Quad Graphics under the West Virginia One Drop Rule, specifically Plaintiff's claim that free liquid toluene was present in the drums Plaintiff transported. [Docket Item 95.] Defendant Quad Graphics motion for reconsideration is also limited in scope and argues that the court erred in allowing Plaintiff to proceed with his negligence claim against Quad for failing to properly seal the drums with the print shop towels prior to transport. [Docket Item 97.] Both parties argue, for different reasons, the court misinterpreted the West Virginia Shop Towel Policy in analyzing whether summary judgment was appropriate as to Plaintiff's negligence claim.
A. Statement of the Facts
The procedural history and underlying facts of this case are described in detail in the Court's March 29, 2012 opinion, see Steele v. Aramark, Civ. No. 09-4340, 2012 WL 1067879, 2012 U.S. Dist. LEXIS 43429 (D.N.J. March 29, 2012), and are reviewed herein only to the extent necessary to serve as a context for the motions for reconsideration before the court.
The instant action arises out of injuries suffered by Plaintiff Brian Steele ("Plaintiff" or "Steele") while working as a substitute truck driver for Defendant Aramark Uniform & Career Apparel. Defendant Aramark is a corporation engaged in the business of leasing, supplying, delivering, cleaning and transporting of business and industrial uniforms and other cloth products to and from businesses and other organizations. Defendant Quad is a printing company and uses Aramark's services to launder its print shop towels. During his time as a substitute truck driver, Plaintiff Steele transported used print shop towels from Quad's facility in West Virginia to Aramark's facility in New Jersey to be laundered.
Between 2007 and 2009, Steele would occasionally drive the route to Quad Graphics in Martinsburg, West Virginia when the regular route driver was unavailable. Steele operated the Quad Graphics route on a normal basis (two times per week) for five months, from April 1, 2007 until August 31, 2007.
As part of Steele's route responsibilities for Quad Graphics, Steele maintains that he retrieved the print towels, which he alleges were soaked in chemicals, including toluene, in 55-gallon drums. On each trip, Steele would spend four to five hours in the Quad facility wherein he would unload the clean print towels and collect the toluene soaked towels by emptying drums that were only partially full into others until he had full drums to take back to Aramark. The drums were then loaded into the back of his delivery truck which had open airflow between the storage compartment and the cabin.
Steele alleges that the lids to the drums were defective and could not be properly sealed which resulted in them fitting loosely on the top. The drums that transported the print towels from Quad's facilities to Aramark were provided by Aramark. In order to keep the lids attached to the drum, Quad employees provided Plaintiff with duct tape and Plaintiff would then duct tape the lids to the drums. As a result of the loose fitting lids, Steele testified that during his three hour drive from the Quad facility in West Virginia to the Aramark facility in New Jersey, he smelled a strong chemical odor and experienced headaches and lightheadedness.
In August 2007, Plaintiff Steele was diagnosed with Focal and Segmented Glomerulonephritis ("FSGS") which has developed into End Stage Renal Disease requiring dialysis treatment.
Two years later, in July of 2009, Steele received a pamphlet from Aramark called "What's the Big Deal about Print Towels: The Do's and Don'ts of Print Towel Transport and Processing." This document explained Aramark's policy for handling solvent soaked print towels and informed employees of the danger of exposure to solvents. The document also explains how print towels should be transported in "sealed and covered" containers. Prior to receiving this pamphlet in July 2009, Steele did not receive any training on how to transport print towels safely or about the dangers of handling solvents.
B. Procedural History and the Court's March 29, 2012 Opinion
The Plaintiff then filed the instant action in state court and the action was subsequently removed on the basis of diversity jurisdiction. [Docket Item 1.] In Count I of the complaint, Steele alleges that Aramark and Quad acted intentionally, willfully, wantonly, and/or with callous indifference by not warning Steele or employing reasonable safety measures to protect Steele from exposure to hazardous chemicals endemic to his job. The second count alleges Aramark and Quad were negligent in failing to employ reasonable safety measures, and/or to apply industry standards of safety, in protecting plaintiff from exposure to hazardous chemicals endemic to his job. Count III alleges the defendants conduct was outrageous and shocking to the conscience whereby the Plaintiff demands punitive damages. Count IV is a loss of consortium claim brought by Steele's wife, Judikaelle Steele. [Docket Item 1-1.]
The Defendants Quad and Aramark filed motions for summary judgment and to bar Plaintiff's experts as well as a motion to bar Plaintiff's late-filed affidavit wherein Plaintiff alleged for the first time that he observed free liquid toluene in the drums of print shop towels. In its March 29, 2012 opinion, the court decided all the pending motions and largely granted summary judgment to the Defendants and dismissed most of Plaintiff's complaint. [Docket Items 91 and 92.]
Specifically, the court granted the Defendants' motion to bar Plaintiff's July 19, 2011 affidavit as it was filed in violation of Fed. R. Civ. P. 26, the information withheld was significant and the prejudice and surprise to the Defendants were great. The court also granted Aramark's motion for summary judgment as Plaintiff's claims against his employer, Aramark, were statutorily barred by the New Jersey's Worker Compensation Act, N.J.S.A. § 34:15-8.
The court granted in part and denied in part Quad's motion to bar Plaintiff's experts and motion for summary judgment. The Plaintiff presented four experts in support of his case, including two medical experts, an occupational health and safety expert and an industrial hygienist expert. The court granted Quad's motion to bar three of Plaintiff's four experts and only permitted one of Plaintiff's medical experts to testify. The court held Plaintiff's medical expert, Dr. Wedeen, would be permitted to testify that toluene exposure was a contributing cause of Plaintiff Steele's FSGS. However, the court barred Plaintiff's remaining experts, including all of Plaintiff's workplace liability experts.
As a result, the court granted in part and denied in part Quad's motion for summary judgment. The court dismissed Counts I and III of Plaintiff's complaint as there was no evidence that Quad acted intentionally in allegedly exposing Plaintiff to toluene vapors. Therefore, the Plaintiff could not establish that any of the alleged conduct by Quad was outrageous or shocking to the conscience.
However, the court did not grant summary judgment as to Plaintiff's negligence claim. Giving all favorable inferences to the Plaintiffs, the court concluded that there was a genuine issue of material fact as to whether Quad was negligent in failing to make sure the drums containing the print shop towels were properly sealed prior to transport.
The court began by noting that Plaintiff's negligence claim was based on two separate premises. First, the Plaintiff argued that Quad failed to comply with the one drop rule of the West Virginia Shop Towel Policy by leaving free liquid toluene in the drums. The court stated that the only evidence of free liquid toluene in the drums was Plaintiff Steele's affidavit which was excluded by the court. Therefore, no admissible evidence supported this aspect of Plaintiff's negligence claim and summary judgment was appropriate to dismiss this theory of liability.
Next, the Plaintiff argued that Quad failed to make sure that the containers were tightly sealed prior to transport. The court found that under the West Virginia Shop Towel Policy, Quad, as the generator of the print shop towels, had a duty to make sure the drums were properly sealed to prevent the release of fugitive air emissions. The Plaintiff presented evidence that Quad employees knew the lids to the drums did not seal and provided Plaintiff with duct tape to attach the lids rather than giving the Plaintiff functioning and sealable drums. Further, the court found that Plaintiff's medical expert provided enough evidence to create a genuine issue of material fact as to whether Plaintiff's exposure to toluene caused or contributed to causing Plaintiff's FSGS. Therefore, the court held that the Plaintiff's negligence claim could survive summary judgment.
The instant motions for reconsideration of this court's March 29, 2012 Opinion and Order seek only to reconsider the court's conclusion ...