SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 1, 2004 -- Decided April 8, 2004
Long, J., writing for a unanimous Court.
In this products liability case, the sole issue before the Court is whether the expert testimony adduced by plaintiff Stanley Clark fell within the witness's sphere of expertise.
On April 3, 1992, Clark was working as an auto mechanic. While
cleaning a carburetor, Clark placed the metal parts in a metal dip basket.
Wearing heavy, large rubber gloves, long sleeves and eye protection, Clark submerged the
basket into "Carburetor and Cold Parts Cleaner 609" (cleaner), a product manufactured by
defendant Safety-Kleen. Still wearing the gloves, Clark removed the parts from the basket
and rinsed them with warm water. He then took the parts to his
workbench and blew them dry with a compressed air device. Because he had
difficulty manipulating the small air nozzle on the dryer while wearing the gloves,
Clark removed the glove from his right hand to operate the nozzle, but
kept his left hand (which held the carburetor components) gloved. After the parts
were dry, Clark removed his left glove with his bare right hand and
reassembled the carburetor.
Before that day, Clark had noticed a small cut on the index finger
of his right hand, but the cut showed no signs of infection. A
few hours after cleaning the carburetor, Clark noticed a tingling sensation in the
finger, so he changed the band-aid and ointment that he had been using
to make sure the cut was clean. That evening, the sensation in the
finger was more persistent, so Clark cleaned the finger with hydrogen peroxide and
water and went to bed. At approximately 11:00, Clark woke suffering from excruciating
pain. He went to a hospital and was quickly transferred to Thomas Jefferson
University Hospital in Philadelphia. Clark was diagnosed with chemical infection and streptococcal infection.
Four surgeries later, Clark had lost substantial function in the finger. Clark's work
was significantly affected from the loss of fine motor manipulation.
Clark filed this lawsuit alleging that the cleaner was unsafe for its intended
use because it created an ultrahazardous condition in that the product was so
harsh and caustic that it destroyed and infected the skin. Clark claimed also
that Safety-Kleen failed to give adequate warning of the nature and extent of
the danger. At trial, Stanley Tocker, Ph.D., a retired research chemist, was called
by Clark to testify regarding the cleaner. In addition to his multiple chemistry
degrees, Dr. Tocker was employed as a research chemist for Dupont for thirty-seven
years, during which he engaged in research relating to various chemicals. He worked
with both cresols and cresylic acid and observed the damage that cresylic acid
could do to human tissue. Dr. Tocker was familiar also with chemical labeling
and material safety data sheets from his work experience. Clark offered Dr. Tocker
as an expert in the fields of chemistry, the effects of chemicals and
cleaning products on human tissue, and the design of chemical products and cleaning
products. During voir dire, Dr. Tocker admitted that he was not a toxicologist
or an industrial hygienist, and that he had not personally tested the chemicals
in the cleaner at issue. Among other extensive testimony about the properties of
the chemical in the cleaner, Dr. Tocker stated that if Clark removed his
left glove with the ungloved and cut right hand, that exposure alone would
have been sufficient to cause severe damage to his finger. Dr. Tocker also
testified that the hospital records failed to mention the precise chemical that injured
Clark "probably" because the hospital would not have had chemical analytical equipment to
perform such tests. Dr. Tocker testified further that once human tissue is opened
and the chemical has an opportunity to operate in an open wound, it
is susceptible to infection by bacteria, including strep and staph. Dr. Tocker's testimony
was buttressed by the testimony of Clark's treating physician, an orthopedic surgeon specializing
in hand surgery.
The jury returned a verdict in favor of Clark, finding that the
cleaner was defectively designed and that there was an inadequate warning on the
product. The Appellate Division reversed. In part, the panel ruled that the requirement
of proving the existence of a feasible alternative design was not met and,
therefore, Safety-Kleen's motion for a voluntary dismissal of Clark's defective design claim should
have been granted. That ruling by the panel was not considered by the
Supreme Court. The panel found also that the jury's conclusion on the medical
causation element of the failure to warn claim was fatally flawed by the
wrongful allowance of Dr. Tocker's causation testimony. The Supreme Court granted Clark's petition
for certification limited to the issues arising out of the alleged failure to
warn and medical causation.
174 N.J. 42 (2002).
HELD : The expert testimony by plaintiff's research chemist concerning the effects of cresylic
acid on human skin and his conclusion that plaintiff's injuries were consistent with
exposure to that chemical were admissible because they rested primarily on the toxicological
properties of the chemical, a subject well within the witness's special qualification.
1. In a products liability case, the duty to warn is premised on
the notion that a product is defective absent an adequate warning for forseeable
users that the product can potentially cause injury. The defect alleged here was
the presence of cresylic acid in the cleaner without an adequate warning. The
question presented is whether Dr. Tocker could testify about Clark's claim of injury
by the cresylic acid. (Pp. 24—25).
2. In the past, this Court has held that non-physicians may testify regarding
medical causation if the circumstances warrant it. The Court also has previously permitted
medical causation testimony by research scientists, upholding the Appellate Division's determination that the
expert was more qualified than a medical doctor by virtue of the expert's
specialization and research background. The Court's only caveat was that the expert's conclusion
derive from a methodology that was supported by some consensus of experts in
the field. Finally, the Court has explained that admissibility depends on the facts
and the expert's qualifications. The expert must be sufficiently qualified by education, knowledge,
training and experience in the specific field of science, and likewise must possess
a demonstrated professional capability to assess the scientific significance of the underlying data
and information, to apply the scientific methodology, and to explain the bases for
the opinion reached. (Pp. 25—27).
3. Dr. Tocker's education, experience and research broadly qualified him to address the
subject of the effect of cresylic acid on human skin. The solvent's chemical
properties are uniquely within a chemist's expertise and it is those chemical properties
that essentially determine the toxicological and occupational health effects of a product. Moreover,
Dr. Tocker was not a substitute for a medical witness. Dr. Schneider performed
that function. It was for Dr. Tocker to link Clark's testimony regarding the
use of the cleaner and the chemical exposure to the symptoms reported by
Clark and verified in the medical records. Moreover, Dr. Tocker testified to the
scientific materials that he consulted in preparation for the case and stated that
they were the types of data an expert in his field would rely
on in formulating an opinion. Dr. Tocker's conclusions regarding the effect of cresylic
acid on human skin were not only reached by a method accepted in
the medical community, but his very conclusion essentially was uncontroverted. Likewise, his conclusion
that Clark's injury was consistent with such chemical exposure was identical to the
conclusion of Dr. Schneider, whose testimony was properly admitted. (Pp. 27—29).
4. In respect of Dr. Tocker's statement that hospitals do not typically have
access to chemical apparatuses, the testimony was arguably admissible because a research chemist
could be expected to know which machines typically are used to perform tests
to identify a particular compound and the kinds of institutions that have access
to such equipment. But even if the statement was speculation, it was harmless
overall because the reason why the hospital did not test for cresylic acid
was essentially irrelevant. It is uncontroverted that no chemical test took place. Finally,
Dr. Tocker's testimony that it was not unusual for streptococcal infection to follow
upon chemical exposure requires reversal as beyond Dr. Tocker's ken. However, his statement
was nothing more than an iteration of the commonly accepted notion that wounds
are breeding grounds for infection and the Court believes the jury understood it
as such. Given the dual diagnoses in the hospital, the potential for infection
and chemical exposure to coexist is obvious. Nothing in Dr. Tocker's testimony could
have tainted the jury's deliberations. (Pp. 29 to 31).
The judgment of the Appellate Division directing that a new trial be held
on the failure to warn claim is REVERSED. The matter is REMANDED to
the trial court for the reinstatement of the verdict.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in
JUSTICE LONG's opinion.
SUPREME COURT OF NEW JERSEY
A-
139 September Term 2001
STANLEY CLARK,
Plaintiff-Appellant,
v.
SAFETY-KLEEN CORP., a New Jersey Corporation,
Defendant-Respondent,
and
JOHN DOE I, a fictitious person; and XYZ CORPORATION, a fictitious entity,
Defendants.
Argued March 1, 2004 – Decided April 8, 2004
On certification to the Superior Court, Appellate Division.
Gary F. Piserchia argued the cause for appellant (Parker, McCay & Criscuolo, attorneys;
Stacy L. Moore, Jr., on the briefs).
John L. Slimm argued the cause for respondent (Marshall, Dennehey, Warner, Coleman &
Goggin, attorneys).
JUSTICE LONG delivered the opinion of the Court.
In this products liability case, the sole issue before us is whether the
expert testimony adduced by plaintiff fell within the witness’s sphere of expertise. The
Appellate Division held that it did not and invalidated a jury verdict in
plaintiff’s favor. That conclusion too narrowly interpreted our decisions in Rubanick v. Witco
Chemical Corp.,
125 N.J. 421 (1991), and Landrigan v. Celotex Corp.,
127 N.J. 404 (1992), which recognized that the testimony of a non-physician scientist could be
admitted with respect to medical causation if the particular expertise or skill of
the witness so warranted. Here, a research chemist testified to the effects of
cresylic acid on human skin and concluded that plaintiff’s injuries were consistent with
exposure to that chemical. Although some individual statements by the expert were improper,
the bulk of his testimony rested primarily on the toxicological properties of the
chemical, a subject well within his special qualification. We are therefore satisfied that
his testimony was admissible and, thus, we reverse.
I
On April 3, 1992, plaintiff Stanley Clark sustained an injury to his finger
after using “Carburetor and Cold Parts Cleaner 609” (Cleaner 609) manufactured by defendant
Safety-Kleen. In a subsequent Complaint filed against Safety-Kleen in 1994, Clark alleged that
Cleaner 609 was “unsafe for its intended use [because it] created an ultrahazardous
condition, in that the product was so harsh and caustic that it destroyed
and infected the skin on the hands of [Clark], and thereby caused a
gangrenous condition to develop . . . .” Clark also alleged that Safety-Kleen
had “failed to give [Clark] and other users of the product adequate warning
of the nature and extent of the danger resulting from the use of
the product.” At the heart of those claims was Clark’s assertion that the
precise chemical formulation of Cleaner 609, which contained cresylic acid,
See footnote 1 caused the damage
to his finger.
A trial was conducted from September 21-27, 1999. Much of the testimony adduced
bore on the issue of design defect, which is not before us. Only
the evidence relevant to our inquiry will be recounted. Clark testified that in
1992, he was employed as an auto mechanic at Triboro Pontiac in Cinnaminson,
a job he had held since 1984. In the course of his work,
he customarily performed all manner of automotive repairs, including cleaning carburetors. At the
time, Clark typically used Cleaner 609 to clean and degrease a carburetor.
Around noontime on April 3, 1992, Clark “removed the carburetor from the vehicle,
disassembled it, and placed the metal parts in a metal dip basket. Wearing
heavy, large rubber gloves, long sleeves and eye protection, [Clark] submerged the basket
in a five-gallon bucket of Safety-Kleen 609.” Clark immersed the carburetor components for
approximately one-half hour. Still wearing his protective gloves, he removed the parts from
the basket and rinsed them with warm water. He then took the parts
to his workbench and blew them dry with a compressed air device. Because
Clark had difficulty manipulating the small air nozzle on the air dryer in
the bulky gloves, he removed the glove from his right hand to operate
the nozzle on the air dryer, but kept his left hand (which held
the individual carburetor components) gloved. After the parts were dry, Clark removed his
left glove with his bare right hand and reassembled the carburetor. He used
no other chemical products on that day, or on the preceding day.
A few days prior to that incident, Clark had noticed a small cut
on the index finger of his right hand that he was treating with
antiseptic ointment and a band-aid. Before April 3, 1992, the cut showed no
signs of infection. At around 3:00 p.m. on the 3rd, Clark noticed a
tingling sensation in his finger, so he changed the band-aid and ointment to
make “sure it was clean.” At approximately 8:00 p.m., Clark observed that the
sensation in his finger was “a little more persistent” so he cleaned the
finger thoroughly with water and hydrogen peroxide and went to bed. At “approximately
11:00, 11:30, [Clark] woke up out of a dead sleep and the pain
was excruciating. . . . It felt like somebody holding a lighter to
the end of your finger, and there was nothing you could do about
it.”
Clark went to a local hospital that quickly transferred him to Thomas Jefferson
University Hospital in Philadelphia after performing an X-ray and administering antibiotics. That night,
his finger was very swollen – in his words, “like a hot dog on
[a] grill,” portions of the finger had turned black and cold, the entire
hand had begun to swell, and a red streak could be seen from
his finger to the middle of his forearm. On admission to Thomas Jefferson
hospital, Clark was diagnosed with a severe finger infection, variously identified in his
medical records as “early tenosynovitis” (swelling of the tendon sheath), “finger cellulitis” (an
infection of the skin and underlying tissues), and “right index finger chemical infection.”
On April 5, 1992, doctors surgically drained Clark’s finger, releasing a large amount
of clear fluid. That fluid was tested and found to contain a strain
of streptococcal bacteria. Doctors decided against immediate amputation, and Clark was released from
the hospital on April 10, 1992. The records from Clark’s hospital stay contained
several diagnoses including chemical infection and streptococcal infection. Later examination “revealed necrosis [tissue
death] of the distal portion of his finger,” and surgeons had to remove
that dead tissue from the end of Clark’s finger. After the surgery, Clark
was left with very little skin on his right index fingertip. In a
third surgery, doctors performed a “thenar flap” procedure, in which Clark’s finger was
sewn into the palm of his hand so that the skin from the
palm would graft to the fingertip. Clark underwent four surgical procedures in all.
The procedures were largely successful but Clark’s treating physician, Dr. Lawrence Schneider, “estimated
the objective loss of function of the right index finger to be about
35% as an impairment evaluation. This will remain permanent. . . . [Clark’s]
actual loss in terms of practical purposes would be somewhat more, about 50%
loss of the finger.”
Clark experiences pain whenever he uses tools that vibrate, and the finger remains
cold to the touch and embarrassing in appearance. He has no sensation for
approximately three-quarters of an inch at the tip of the finger. He experiences
“a lot of pain” whenever he inadvertently hits or bumps the injured finger
“because [his] bone is so close to the end of [his] finger, it’s
very delicate there.” Furthermore, because the injury was sustained by the index finger
of his dominant right hand, Clark “cannot work in his job as a
mechanic as he did before, since he can no longer engage in fine
motor manipulation, he has difficulty holding and manipulating small objects such as nuts,
washers or tools, and he drops things at work.” Because Clark is paid
on a flat rate per job (rather than per hour), his inability to
“work as quickly and obtain payment on the ‘flat rate’ basis” means that
his ability to earn at the same rate as he had prior to
the accident was hampered significantly by the injury to the finger. Clark testified
at trial that he had read and understood the warnings on the Safety-Kleen
label and thus had followed the recommended safety procedures. He was not aware
that getting the solvent on a cut on his hand “would result in
that much damage.”
Dr. Stanley Tocker, Ph.D., a retired research chemist was called by Clark to
testify regarding Cleaner 609. Dr. Tocker holds a B.A. in Chemistry from Johns
Hopkins University, a M.S. in Chemistry from Virginia Polytechnic Institute, and a Ph.D.
in Organic Chemistry from Florida State University. He was employed as a research
chemist for Dupont for thirty-seven years before he retired. While at Dupont, Dr.
Tocker engaged in research relating to plastics, pesticides, biochemicals, chemical synthesis, and chemical
formulation. He worked with both cresols and cresylic acid and observed the damage
that cresylic acid could do to human tissue.
In addition, Dr. Tocker was familiar with chemical labeling and “Material Safety Data
Sheets” (MSDS worksheets)See footnote 2 from his experience in the agricultural products division of Dupont.
Clark offered Dr. Tocker as an expert “in the fields of chemistry, the
effects of chemicals and cleaning products on human tissue, . . . and
the design of chemical products and cleaning products.” During
voir dire, Dr. Tocker
admitted that he was neither a toxicologist nor an industrial hygienist, and that
he had not personally tested the chemicals in Cleaner 609 on human skin.
He outlined for the court the documents he reviewed in preparation for his
testimony:
I reviewed Mr. Clark’s medical records. I reviewed the complaint, the interrogatories and
answers. I reviewed the deposition of Stanley Clark on February the 22nd, 1995;
James Fisher, March the 10th, 1995; Michael Hurley, February the 20th, 1995; Vincent
Gallagher, July 31st, 1997. I reviewed reports from Vincent Gallagher of March the
8th, 1996 and John Slimm, July 23rd, 1992. I reviewed the [MSDS] documents
and label of Safety-Kleen cleaner 609. I reviewed all the Safety-Kleen literature that
was furnished to me. I also reviewed the deposition of Dennis Brinkman, March
the 9th, 1999; the Ullmann’s Encyclopedia of Industrial Chemistry on Cresols and Xylenols,
I also reviewed the report by S.H. Rabinovitz, Ph.D. of Sandler Occupational Medical
Associates, July the 25th, 1996, the report by the WARF Institute on skin
corrosion tests of Safety-Kleen 609 on rabbits dated September the 9th, 1997.
I also reviewed a great many other documents in my company’s library relating
to the safety of cresol and the other ingredients in 609. This involved
Saks Chemical Desk Reference, Ullmann’s Encyclopedia of Chemistry, the Merck Index, Internet documents
from the EPA and OSHA. And many other pieces of literature that I
found in my library as well as on the Internet.
Dr. Tocker stated that those items constitute the type of record that an
expert in his field would rely on to formulate opinions regarding the effects
of chemicals on human skin. Dr. Tocker’s expert testimony was allowed over defense
counsel’s objection.
Dr. Tocker first testified to the chemical make-up of Cleaner 609 based on
“literature that Safety-Kleen supplied.” He explained that the product contains about twelve percent
cresylic acid, and about thirty-two percent methylene chloride, as well as dichlorobenzene, surfactants,
water, and an alcohol. Those percentages were reflected in Safety-Kleen’s literature. Dr. Tocker
testified that, in his opinion, “the cause of the medical problems was cresylic
acid in the formulation.” More specifically, he stated that “swelling of human tissue,”
“necrosis,” “clear fluid in a wound,” and “redness” would all be consistent with
exposure to cresylic acid. Those conclusions were directly supported by the MSDS worksheets,
the WARF Institute test documents, and Ullmann’s Encyclopedia of Industrial Chemistry. Dr. Tocker
further testified:
Cresylic acid rapidly penetrates human tissue. It will enter human tissue much faster
if the human tissue is abraded or cut. Once it gets into human
tissue, it starts destroying human cells and this includes the blood supply to
the human cells. And when the blood supply is destroyed there’s possibility of
necrosis.
Now the thing that indicated to me that the cresylic acid was the
key offender here and not methylene chloride or something else is the way
Mr. Clark responded. He had a tingling in his finger, not an immediate
burning sensation, which is typical of cresylic acid type burns. And then eventually
hours later he started having excruciating pain. And this is very typical of
cresylic acid. It’s not typical of methylene chloride. It’s not typical of any
of the other ingredients in 609.
The MSDS documents supported that conclusion regarding delayed pain. They observed of cresylic
acid that “[p]artial anesthetic properties may mask effects.” In Dr. Tocker’s opinion, even
if a minimal amount of cresylic acid, “below a milligram,” came in contact
with Clark’s finger, it would “cause the kind of damage [that he suffered].”
Dr. Tocker was then asked to consider the label that was placed on
Cleaner 609. He expressed the opinion that the warning and instructions were inadequate
for a product containing cresylic acid. The label on the five-gallon bucket of
Cleaner 609 contained the following warnings:
DANGER. Contains Cresylic Acids and Chlorinated Hydrocarbons. Harmful or fatal if swallowed – Read
Carefully Additional Cautions on Back Panel.
The warnings continued on the back of the bucket are as follows:
INSTRUCTIONS FOR USE:
Ready to use. It is recommended to use a dip basket with the
Safety-Kleen Carburetor and Cold Parts Cleaner.
Immerse Parts. Place metal parts to be cleaned in a dip basket or
suspend them from hooks. Lower parts into the solvent. Do not place hands
in the solvent. Rubber gloves should be worn while loading and unloading parts.
Let Stand. Do not immerse parts for more than one hour without inspection.
Inspect for metal deterioration. Parts made with aluminum, magnesium, zinc and copper may
deteriorate rapidly if allowed to be immersed too long.
Rinse. When parts are clean they should be thoroughly rinsed with water. Warm
water is preferred. Compressed air may be used to blow dry rinsed parts.
READ—IMPORTANT INFORMATION PRECAUTIONS (SAFETY-INSTRUCTIONS)
1. Use only with adequate ventilation. 2. Do not smoke, drink or eat in work
area. 3. Non-flammable. Keep away from sun or heat. 4. Avoid contact with eyes. Will
cause irritation and/or pain. Wear protective eye wear. 5. Avoid any contact with skin.
May cause irritation or dermatitis. Wear protective rubber gloves and clothing. 6. Harmful or
fatal if swallowed. 7. Avoid repeated and/or prolonged breathing of vapors. Vapors are heavier
than air and will collect in low areas. High vapor concentration can cause
dizziness or unconsciousness. 8. Do not mix with other chemicals such as gasoline,
fuel oils or detergents. 9. Do not immerse plastic or non-metallic parts. Solvent
will attack paint. 10. Do not immerse parts more than one (1) hour
without inspection.
FIRST AID (MEDICAL INSTRUCTIONS)
Description. Safety-Kleen Carburetor and Cold Parts Cleaner Solvent is a blend of chlorinated
hydrocarbons, cresylic acids and surfactants.
Inhalation Overexposure. Remove to fresh air immediately. If breathing is difficult, give oxygen.
Get medical help immediately. If need be CPR should be given by a
qualified person only. Get medical help immediately.
Eye Contact. Flush eyes with water for at least 15 minutes. Get medical
help immediately.
Skin Contact. Remove saturated clothes immediately to prevent skin rash or absorption of
chlorinated solvents into skin. Wash thoroughly with mild soap and water and/or baking
soda water. Saturated clothes should be washed thoroughly and dried out of doors
until the solvent odor is no longer present.
Internally-Swallowing. Do not induce vomiting. If conscious, drink large quantities of water. Get
medical help immediately.
[(emphasis added).]
Additionally, there was a large red diamond on the front of the label,
which read “CORROSIVE” and showed a picture of a test tube pouring a
liquid onto both a flat surface and a hand. In each picture, the
liquid was making a hole into the object and causing it to emit
vapors or smoke.
Dr. Tocker found the label to be inadequate because “there is no admonition
about the possibility of a skin problem in writing” on the front of
the bucket and the instructions on the back of the bucket do not
“say how long the product should have been washed to remove every trace
of cresylic acid. . . . There should have been some indication how
long the product should have been washed to be sure that when the
product was removed from the sink, it was safe to handle.”
Dr. Tocker also testified that the label violated standards promulgated by the American
National Standards Institute (ANSI) which provide that labeling should include information in a
prominent way about the exact effects one can expect from the toxic ingredients
present. “It’s not adequate to say something’s an irritant. One has to say
how much of an irritant or what kind of organ is affected.”
Of particular concern, Dr. Tocker noted, was that “cresylic acid and two of
the other ingredients are insoluble in water and difficult to remove by water,”
so that during the rinsing process “some 609 [would] remain[] on the carburetor,
and then when the carburetor is subjected to an air stream, it would
remove the volatile part of the formulation which is methylene chloride, and water.
See footnote 3
Leaving behind a higher concentration of cresylic acid and dichlorobenzene.” Thus, rinsing the
carburetor and blowing it dry does not guarantee that it will be safe
to handle. Dr. Tocker also testified that if Clark removed his left glove
with the ungloved and cut right hand, as he testified that he did,
that exposure alone would have been sufficient to cause severe damage to his
finger.
On cross-examination, Dr. Tocker acknowledged that although the Thomas Jefferson Hospital summary identified
Clark’s principle diagnosis as “right index finger chemical infection”, it did not contain
any reference to Cleaner 609 or to cresylic acid in general. On redirect
examination, Dr. Tocker explained that the hospital’s failure to mention the precise chemical
that injured Clark was “probably” because the hospital would not “have [had] chemical
analytical equipment to determine the nature or the chemical composition of an irritant
that gets into an open wound. They don’t have high performance liquid chromatography,
spectrographic equipment or anything like that.”
Dr. Tocker also was questioned on redirect examination about the dual diagnoses that
seem to have been made in some of the hospital records, showing both
a chemical injury and a bacterial infection. Over defense counsel’s objection, and after
the trial court asked Dr. Tocker if he felt “qualified to answer” the
question, the court allowed Clark’s attorney to ask if it “would [] be
unusual to have a secondary diagnosis of streptococcus infection after a principal diagnosis
of right index finger chemical infection?” Dr. Tocker answered: “Once the tissue in
the human hand is opened, and the chemical irritant had an opportunity to
operate in the open wound, the open wound was very susceptible to infection
by bacteria, any kind of bacteria, strep, staph, anything.”
Dr. Lawrence Schneider, Clark’s treating physician at Thomas Jefferson Hospital, also testified on
his behalf. Safety-Kleen’s counsel moved twice before trial to bar Dr. Schneider’s testimony
on the ground that it was based on “unaccepted scientific methodology and inadequate
data” and that it was not based on the facts. Both motions were
denied. At trial, Safety-Kleen again moved to bar Schneider from testifying because his
written report, summarizing his treatment of Clark, opined that the injury to Clark’s
finger was consistent with the solvent’s being injected into the finger from a
pinhole in a pressurized spray gun. Safety-Kleen argued that, although it is uncertain
how the injury to Clark was caused, he never sprayed the Cleaner 609
out of a pressurized hose.
The trial court ruled that, although Dr. Schneider had initially made an erroneous
assumption regarding the mechanism of injury, that assumption was not material to the
conclusions that Dr. Schneider made, and that “[i]t’s a distinction without a difference
or a difference without a distinction whether the solvent entered the finger as
a result of high pressure. . . . It really doesn’t make a
bit of difference.” The court further stated that any shortcomings in Dr. Schneider’s
testimony went “not to admissibility but to credibility and the jury can hear
his opinions . . . .”
Dr. Schneider testified that he is an orthopedic surgeon specializing in hand surgery.
He has extensively studied and written on high-pressure injection injuries to the hand.
Dr. Schneider first examined Clark in the emergency room on April 4, 1992.
When Clark failed to respond to antibiotics, Dr. Schneider decided to surgically explore
the finger. During that surgical procedure, he testified, “we found a lot of
clear fluid throughout the soft tissues of the finger, . . . [The
fluid] did not look like puss or the kind of material you see
with an infection.” When asked whether “that clear fluid [was] consistent with a
chemical solvent,” Dr. Schneider answered “Yes.” Dr. Schneider also testified that in his
opinion, to a reasonable degree of medical certainty, Clark’s injury had all the
appearances of chemical toxicity “causing this gangrenous condition at the tip of the
finger.”
On cross-examination, Safety-Kleen’s counsel noted the apparent contradiction between Dr. Schneider’s testimony and
the summary letter he had earlier written to Clark’s counsel regarding the case.
Dr. Schneider’s letter to Clark’s attorney stated: “[Clark’s] injury had much of the
characteristics of a high-pressure chemical injury to the distal end of his right
index finger. At surgery there was clear fluid demonstrated in the pulp of
his index finger, which we presumed was a chemical solvent.” However, after it
had been pointed out to Dr. Schneider at his
de bene esse deposition
that there was no high-pressure injection of the solvent into Clark’s hand, he
clarified:
[T]he thing that made me suspect [injection] in the beginning was the intense
pain that [Clark] had and the sudden onset, which really goes along with
some kind of reaction like that. My presumption was that it was injected.
It may not have been, but with the cut there it could have
had the same effect.
[(emphasis added).]
Dr. Schneider concluded that “there’s no question in my mind” that Clark’s injury
resulted from exposure to a chemical solvent.
Safety-Kleen called Dr. Scott Jaeger, an orthopedic surgeon and hand specialist, who evaluated
Clark briefly prior to the trial. Much of Dr. Jaeger’s testimony went to
the severity of Clark’s injury and his level of disability, subjects not at
issue before this Court. Dr. Jaeger concluded, based on a review of Clark’s
medical records, that “the characteristics of the wound and the descriptions by the
physicians at Jefferson [were] not typical of one that was made worse by
a corrosive substance such as cresylic acid . . . .” In fact,
Dr. Jaeger stated that
it was quite clear that the patient had a cut in his finger
which was relatively shallow associated with a callous. It became infected with the
strep bacteria. His – the course of what happened to him is very, very
classic in that at first he felt some tingling at the fingertip, but
then as the bacteria got to that tendon sheath, it immediately had access
to the whole finger ‘cause once you get into that tendon sheath, the
bacteria can move very rapidly to the entire finger, and it causes tenosynovitis
which is an emergency because if you don’t release the fluid that has
the bacteria in it from that sheath, it can cause the finger to
totally freeze up, and then he had a red line up his arm.
So what happened is that the strep got into the fingertip through this
little crack and then moved very rapidly down the finger and caused necrosis
of the tip of his finger, actually ate up the tip of his
finger, . . .
Dr. Jaeger went on to state that
if the cresylic acid were the cause of the bacteria getting into this
tendon sheath . . . you would need a fistula that was conical
shaped showing where the original cresylic acid got into the split [in the
skin] . . . it would have had to have eaten a hole
in the skin which would have been larger at the surface and bored
its way down into the place where the sheath is.
Dr. Sheldon Rabinovitz, M.D., testified for Safety-Kleen as an expert in industrial hygiene
and toxicology. Dr. Rabinovitz opined that the Cleaner 609 label “more than met
the requirements of the OSHA hazard communication standard” because the words used on
the label, the description of adverse effects, and the identification of the product’s
contents were all sufficient to warn the potential consumer. Dr. Rabinovitz also testified
that, based on a review of this case and Clark’s medical records,
it is not possible for sufficient amounts of the cresylic acid to have
gotten into his finger to have caused any harm. The reason for that
is primarily if for no other reason this carburetor was dipped in water
following the cleaning. And so when he was applying the air pressure to
the carburetor, what he was primarily cleaning was water. There might have been
a very minor amount of cresylic acid in there, but very, very low.
Dr. Rabinovitz acknowledged that both OSHA and the ACGIH (American Conference of Governmental
Industrial Hygienists) standards state there should be absolutely no contact between the skin
and cresylic acid because of its corrosive effect. Dr. Rabinovitz also agreed with
Dr. Tocker that cresylic acid (as a component part of the solvent) is
absorbed readily into the skin, and “if [the skin is] cut it’s even
worse.” His exact words were “[c]resols are different, because even when the skin
isn’t cut it can get in. But if the skin is cut it’s
going to get in even easier.” Dr. Rabinovitz also indicated that, in his
opinion, Clark would have experienced immediate pain if his finger had been exposed
to cresylic acid.
Dr. Dennis Brinkman, the Director of Technical Development for Safety-Kleen testified to the
constituent elements of Cleaner 609, verifying Dr. Tocker’s testimony on that subject. He
stated that the product was made to military specifications and also identified the
MSDS worksheets for the product that are provided to customers. Those sheets underscore
the corrosive effects of cresols and the control measures (e.g., gloves, eye-protection) that
users are instructed to employ. According to Brinkman, the constituent elements of Cleaner
609 are all “found throughout nature. . . . in plants, flowers [and]
trees.” However, Brinkman acknowledged the corrosive effect of cresylic acid and agreed to
the volatility and solubility conclusions of Dr. Tocker - that as the methylene
chloride evaporated during the air-blowing phase of a carburetor cleaning, it would leave
behind a higher concentration of cresylic acid.
Additional evidence that was submitted to the jury without objection included photocopies of
the Cleaner 609 label that Clark had read, reports from the WARF Institute
regarding the corrosiveness of Cleaner 609 as shown in tests on rabbits, technical
information about Cleaner 609 and its component compounds from MSDS worksheets, and Ullmann’s
Encyclopedia of Industrial Chemistry.
See footnote 4 Clark’s medical records were also submitted.
The jury returned a verdict in favor of Clark, finding that Cleaner 609
was defectively designed and that there was an inadequate warning on the product,
which proximately caused Clark’s injury. The jury awarded damages in the amount of
$400,000. Those damages included stipulated medical bills of $34,812 and net lost wages
of $12,000. Judgment in favor of Clark was entered reflecting the jury verdict.
Safety-Kleen moved for judgment notwithstanding the verdict, for a new trial, and for
remittitur. The trial court denied those motions although it acknowledged that “some of
the calls were close and I made them as best as I could
at the time of trial.”
Safety-Kleen appealed the judgment and the denial of the post-trial motions. The Appellate
Division reversed. In so doing, the court ruled that the requirement of proving
the existence of a feasible alternative design was not met and, therefore, Safety-Kleen’s
motion for a voluntary dismissal of Clark’s defective design claim should have been
granted. That issue is not before us.
Regarding medical causation, the court focused on Dr. Tocker’s testimony. In the Appellate
Division’s view, some of Dr. Tocker’s testimony, namely, the chemical composition of Cleaner
609 and the chemical properties of cresylic acid, was perfectly appropriate. However, his
testimony related to “medical diagnoses, discussions of bacterial infections and comments on hospital
analytical equipment” was found to be more troubling.
The Appellate Division concluded that, although the trial court “did not commit manifest
error in qualifying Dr. Tocker to testify about chemistry, warnings, and labeling,” “allowing
Dr. Tocker to testify to medical causation was beyond the scope of his
qualifications as a research chemist. The judge’s decision to admit this testimony was
a mistaken exercise of discretion.”
The Appellate Division also addressed Safety-Kleen’s argument that “Dr. Schneider’s testimony, concerning medical
causation, should not have been admitted because it was based on an incorrect
factual premise and a flawed theory of causation.” The court held that “[t]he
primary basis for Schneider’s opinion, the clinical appearance of plaintiff’s injury and its
response to treatment, was not undermined by the revelation that plaintiff was not
working with a high pressure spraying apparatus. For that reason, the trial judge
properly allowed Dr. Schneider’s testimony on causation.”
Despite the fact that Schneider’s medical causation testimony was admissible, the Appellate Division
nevertheless determined that the jury’s conclusion on that element of the failure to
warn claim was fatally flawed by the wrongful allowance of Dr. Tocker’s causation
testimony. We granted Clark’s petition for certification, “limited to the issues arising out
of the alleged failure to warn and medical causation.” 174
N.J. 42 (2002).
II
Clark argues that the Appellate Division’s reversal and remand on the inadequate warning
claim was improper because Dr. Tocker’s qualifications in organic chemistry, his personal familiarity
with “the medical damages that occur from exposure to cresylic acid,” and the
specific research he conducted in preparation for his testimony qualified him to testify
on the effects of cresylic acid on the human body. Further, Clark contends
that to the extent that Dr. Tocker’s testimony exceeded his expertise, the error
was harmless because Dr. Schneider fully corroborated his conclusions.
Safety-Kleen counters that the Appellate Division’s reversal of the failure to warn determination
based on the admission of faulty medical causation testimony was correct, and consistent
with our prior jurisprudence. More specifically, Safety-Kleen contends that Dr. Tocker’s testimony regarding
the method by which the chemical reached Clark’s finger, as well as his
failure to test the precise compound of chemicals in Cleaner 609, led to
impermissible jury speculation. Moreover, Safety-Kleen criticizes Dr. Tocker’s testimony regarding whether it “would
[] be unusual to have a secondary diagnosis of streptococcus infection after a
principal diagnosis of right index finger chemical infection.” According to Safety-Kleen, Dr. Tocker’s
answer to that question “was a key element in the case where the
court was permitting a non-medical doctor who possessed no specialized expertise in bacteriology,
toxicology, medical diagnoses or clinical technology to offer an opinion on the key
issue in the case.” As a result, Safety-Kleen argues that “that testimony prejudiced
the defense and mislead the jury.” According to Safety-Kleen, “[t]hat trial error had
the capacity to, and did taint the entire verdict since it allowed the
jury to speculate on causation.”
III
In a products liability case, the duty to warn is premised on the
notion that a product is defective absent an adequate warning for forseeable users
that “the product can potentially cause injury.” Coffman v. Keene Corp.,
133 N.J. 581, 593-94 (1993) (citing Freund v. Cellofilm Props., Inc.,
87 N.J. 229, 242
(1981)).
Ordinarily the resolution of an inadequate-warning products liability claim involves first the determination
of the defect in a product sold or marketed by defendants, i.e. the
evaluation of the adequacy of the warning, then an assessment of the plaintiff’s
conduct, and finally a determination of how each may have proximately caused the
accident.
[Vallillo v. Muskin Corp.,
212 N.J. Super. 155, 158 (App. Div. 1986).]
The defect alleged here was the presence of cresylic acid in Cleaner 609
without an adequate warning. The gist of Clark’s claim was that he was
injured by the cresylic acid in the product. The question presented is whether
Dr. Tocker could testify about that injury.
In the past, we have held that non-physicians may testify regarding medical causation
if the circumstances warrant it. In initially laying out a guideline to govern
such testimony, we established that
a reliable expert opinion on the lifesaving potential of emergency first aid services
can be given by a witness whose competence as an expert in this
field is demonstrated by education, training or experience, and that a professional license
or degree in medicine is not a prerequisite to establish sufficient knowledge to
qualify as an expert. Accordingly, plaintiffs should be permitted to demonstrate that their
witness has the requisite specialized knowledge, training or experience to qualify as an
expert.
[Hake v. Manchester Twp.,
98 N.J. 302, 306 (1985).]
That principle was expanded to embrace more explicitly the medical causation testimony of
research scientists in Rubanick, supra, where the Court found that a research biochemist
was qualified to give expert testimony that polychlorinated biphenyls could cause colon cancer.
In that case, we affirmed the Appellate Division’s holding that “by virtue of
[the expert’s] specialization and research background in cancer [, the expert] was more
qualified than a medical doctor who is involved with the care and treatment
after the fact of cancer development in patients . . . .” 125
N.J. at 452. Our only caveat was that the expert’s conclusion derive from
a methodology that is supported by some consensus of experts in the field.
Id. at 449-50. Rubanick changed the focus of the inquiry from the scientific
community’s acceptance of the substance of the opinion to its acceptance of the
methodology and reasoning underlying it.
In a subsequent case involving an asbestosis claim, we remanded with instructions that
the trial court provide a hearing on the issue of whether a non-physician
epidemiologist was sufficiently qualified to offer causation testimony regarding a particular plaintiff’s colon
cancer. In so doing, we found it instructive that “[c]ourts of other jurisdictions
also permit non-physician scientists to testify on matters of individual causation when their
training and experience indicate sufficient expertise to support a reliable opinion.” Landrigan, supra,
127 N.J. at 423. In other words, the admissibility of expert testimony will
depend on the facts and on the expert’s qualifications. More particularly, the expert
must be sufficiently qualified by education, knowledge, training, and experience in the specific
field of science. He likewise “must possess a demonstrated professional capability to assess
the scientific significance of the underlying data and information, to apply the scientific
methodology, and to explain the bases for the opinion reached.” Id. at 414
(citing Rubanick, supra, 125 N.J. at 449).
IV
We turn now to the facts of this case. Dr. Tocker was offered
specifically as an expert in “chemistry, the effects of chemicals and cleaning products
on human tissue, warnings regarding chemical products and cleaning products, and the design
of chemical products and cleaning products.” The Appellate Division agreed that he was
well qualified to offer an opinion on the chemical composition and chemical properties
of Cleaner 609 and cresylic acid and on the issue of the sufficiency
of the warnings and label. At issue is his testimony regarding the basic
toxicological effects of the chemical on human skin.
It seems clear to us that Dr. Tocker’s education, experience, and research broadly
qualified him to address the subject of the effect of cresylic acid on
human skin. The chemical properties of such a solvent is a subject uniquely
within a chemist’s expertise and it is those chemical properties that essentially determine
the toxicological and occupational health effects of a product.
Dr. Tocker was not a substitute for a medical witness. Dr. Schneider
performed that function. However, because Schneider could only testify to Clark’s “chemical” exposure,
it was for Dr. Tocker to link Clark’s testimony regarding the use of
Cleaner 609 and cresylic acid exposure to the symptoms reported by Clark and
verified in the medical records. That was well within the margins of his
expertise.
Moreover, he testified to the scientific materials that he consulted in preparation for
the case and stated that they were the types of data an expert
in his field would rely on in formulating an opinion. Indeed, that documentation
was made up of the same materials relied on by the defense experts,
and plainly established the corrosive effects of cresols on skin. In short, Dr.
Tocker’s conclusions regarding the effects of cresylic acid on human skin were not
only reached by a method accepted in the scientific community, but his very
conclusion essentially was uncontroverted. Likewise, his conclusion that Clark’s injury was “consistent” with
such chemical exposure was identical to the conclusion of Dr. Schneider whose testimony
was properly admitted by the trial court.
However, we recognize that the fact that Dr. Tocker was generally qualified to
address the issues in the case does not mean that every word out
of his mouth was appropriate. Indeed, Safety-Kleen advances several specific arguments addressing particulars
of Dr. Tocker’s testimony, which it claims tainted the outcome here. The Appellate
Division reached a similar conclusion.
We turn now to those specifics. Safety-Kleen argues that Dr. Tocker’s opinion about
how the cresylic acid got onto Clark’s skin was speculation. That argument misconstrues
Dr. Tocker’s testimony. Like any expert, his opinion was based on the facts
in the record. Included among those facts was Clark’s uncontroverted statement that he
removed the glove from his left hand with his ungloved and cut right
hand. Dr. Tocker specifically stated that he understood those to be the facts.
Those facts, in turn, supported Dr. Tocker’s conclusion regarding Clark’s exposure to cresylic
acid as consistent with his symptoms. That testimony was fully admissible. See Vuocolo
v. Diamond Shamrock Chems. Co.,
240 N.J. Super. 289, 300 (App. Div. 1990)
(holding that expert opinion may only be admitted if it is based on
proper factual foundation).
It is also argued that Dr. Tocker’s testimony that hospitals do not typically
have access to chemical apparatuses is problematic. We conclude that that testimony arguably
was admissible because a research chemist could be expected to know which machines
typically are used to perform tests to identify a particular chemical compound, and
the kinds of institutions that have access to such highly specialized equipment. But
even if that was not the case and the statement was rank speculation,
it was harmless overall because the reason why the hospital did not test
for cresylic acid essentially was irrelevant. Although the dual hospital diagnoses referred to
streptococcal infection and to chemical exposure, it is uncontroverted that no chemical test
took place and that there is no “scientific” proof of cresylic acid in
Clark’s finger. That is the point underlying the defense. Thus, any error in
the admission of Dr. Tocker’s explanation was inconsequential.
Finally, Safety-Kleen urges us to conclude that Dr. Tocker’s testimony that it was
not “unusual” for streptococcal infection to follow upon chemical exposure requires reversal. Obviously,
that kind of conclusion was beyond Dr. Tocker’s ken. However, in context, we
view his isolated statement as nothing more than an iteration of the commonly
accepted notion that wounds are breeding grounds for infection, and we believe that
the jury understood it as such. In fact, what Dr. Tocker said was
just that: “the open wound was very susceptible to infection by bacteria, any
kind of bacteria, strep, staph, anything.” Given the dual diagnoses in the hospital,
the potential for infection and chemical exposure to coexist is obvious. It was
for the jury to assess which was more likely to have been the
precipitating cause of Clark’s injuries. In short, we are satisfied that nothing in
Dr. Tocker’s testimony could have tainted the jury’s deliberations.
That is not to suggest that Dr. Tocker’s opinion would not have benefited
from some more careful curbing. However, we are satisfied that the brief portions
to which we have adverted were either admissible or harmless in light of
the real issues in the case, and that the reversal by the Appellate
Division based on that testimony was unwarranted.
V
The judgment of the Appellate Division directing that a new trial be held
on the failure to warn claim is reversed. The matter is remanded to
the trial court for the reinstatement of the verdict.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-139 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
STANLEY CLARK,
Plaintiff-Appellant,
v.
SAFETY-KLEEN CORP., a New
Jersey Corporation,
Defendant-Respondent,
And
JOHN DOE I, a fictitious
Person; and XYZ CORPORATION,
A fictitious entity,
Defendants.
DECIDED April 8, 2004
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
Cresylic acid, a mixture of various chemicals including cresols and xylenols, is
used as a metal degreaser and as an “agent[] for removing carbonization deposits
from internal combustion engines.” A8
Ullmann’s Encyclopedia of Industrial Chemistry 25, 46 (5th
ed. 1997). Cresols and xylenols burn and corrode human skin. Id. at 44,
53.
Footnote: 2
MSDS worksheets are written reports that provide information regarding hazardous chemicals. The
United States Department of Labor’s Occupational Safety & Health Administration (OSHA) requires “[c]hemical
manufacturers and importers [to] obtain or develop a material safety data sheet for
each hazardous chemical they produce . . . .” 29
C.F.R. § 1910.1200(g)(1) (1994).
They are written in order to “ensure that the hazards of all chemicals
produced or imported are evaluated, and that information concerning their hazards is transmitted
to employers and employees.” Id. at § 1910.1200(a)(1).
Footnote: 3
The volatility of a chemical is a measurement of its tendency to
evaporate. Both water and methylene chloride (which, together, make up about 40 percent
of the Cleaner 609 compound) would evaporate faster when subjected to an air
stream, than would the less volatile (and more corrosive) chemicals.
Footnote: 4
The first MSDS report clearly indicated that because Cleaner 609 contains cresylic
acid, it is a health hazard to skin and “is corrosive to living
tissue.” Those conclusions were supported by the WARF Institute’s tests on Cleaner 609.
Likewise, the second MSDS report denominated Cleaner 609 as hazardous to skin, declaring
it “[c]orrosive to living tissue and . . . rapidly absorbed through the
skin causing systemic poisoning. Contact with unprotected skin can cause discoloration, irritation, blistering
and slow healing chemical burns. Partial anesthetic properties may mask effects.” Ullmann’s Encyclopedia
stated that “cresols [cresylic acid] burn the skin and mucous membranes through degradation
of proteins, similarly to phenols. Initially white, and later brownish black necroses appear
on the skin.” Ullmann’s Encyclopedia, supra, at 53.