(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 16, 1998 -- Decided July 27, 1998
STEIN, J., writing for a unanimous Court.
The issue on appeal is whether a plaintiff in a toxic-tort, failure-to-warn case can establish a prima
facie case on the element of "medical causation" by satisfying the "frequency, regularity and proximity" test
announced by the Appellate Division in Sholtis v. American Cyanamid Co., absent evidence that the illness
was caused by specific products manufactured by specific defendants. The Court also addresses whether a
showing of prejudice to the moving parties is required to support a trial court's determination to dismiss a
plaintiff's complaint without prejudice pursuant to Rule 4:4-1.
Decedent, Walter James, was employed by Bessemer Processing Company, Inc. (Bessemer) for
twenty-six years. Bessemer, a wholly-owned subsidiary of Kingsland Drum and Barrel, was engaged in the
cleaning and reconditioning of used and empty fifty-five gallon drums for further use by the petroleum
industry and certain other chemical manufacturers. Kingsland sent to Bessemer drums that had residue that
was more sticky and viscose, requiring incineration, blasting and/or recontouring.
During the course of his employment with Bessemer, decedent was exposed on a daily basis to a
wide variety of residues of petroleum products and other chemical substances, many allegedly containing
benzene, polycyclic aromatic hydrocarbons (PAHs) and other human carcinogens. On February 8, 1990, at
the age of fifty-two, decedent died of stomach and liver cancer. Decedent's widow, Ida James (plaintiff),
brought this survivorship and wrongful death action against multiple defendants, alleging that defendants
failed to warn of the dangerous propensities of the substances they shipped to Bessemer and that decedent's
continuous exposure to those substances was the cause of his illness and death.
The Law Division granted summary judgment to all defendants on the basis that plaintiff would be
unable to establish that decedent's cancer was caused by specific products manufactured by specific
defendants. The court issued separate orders dismissing plaintiff's complaint against various defendants on
procedural grounds. On appeal, the Appellate Division reversed the summary judgment order dismissing
plaintiff's complaint against all named defendants. The defendants affected by the summary judgment order
reversed by the Appellate Division were the following petroleum manufacturers: Shell, Exxon, Amoco,
CITGO, Chevron, Texaco, Sunoco and Mobil (collectively "the petroleum defendants"). Also affected were
the following manufacturers and suppliers of various other chemical substances: Ashland, Occidental,
Daicolor-Pope, Pride, MacArthur and North American Paint. Additionally, the Appellate Division reversed
the separate orders dismissing plaintiff's complaint on procedural grounds in favor of Texaco and Chevron,
remanding for a hearing to determine whether Chevron and Texaco were prejudiced by plaintiff's untimely
service of process on them.
The Supreme Court granted certification.
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.
1. Because this matter arises from the granting of summary judgment in favor of defendants, the Court
reviews the evidentiary record in the light most favorable to plaintiff. (pp. 6-18)
2. As an environmental tort action, this lawsuit is excluded from coverage under the 1987 Products Liability
Act. Thus, plaintiff may base her action in common law on grounds of negligence, strict liability, or both.
Plaintiff has asserted both causes of action. In a failure-to-warn case, in order to establish a cause of action
in strict liability, plaintiff must prove that the product left the manufacturer in a defective state; that defect
being the manufacturer's failure to provide a warning to unsuspecting users of the product's potential to
cause injury. A plaintiff must prove that the absence of the warning was the proximate cause of his or her
harm. A plaintiff is also afforded a heeding presumption: that the injured party would have followed an
adequate warning had one been provided. To rebut that presumption, a defendant must produce evidence
that the warning would not have been heeded. (pp. 18-21)
3. Product-defect-causation in the failure-to-warn context is presumed on proof that the defendant had a
duty to warn. Proof of actual causation is not required to satisfy the plaintiff's burden on that element. A
plaintiff must introduce evidence that the defendant's failure to warn of the hazards of its product led to
plaintiff's exposure only if it becomes necessary to defeat a defendant's attempt to rebut the heeding
presumption. Whether decedent or his superiors at Bessemer would have heeded warnings from defendant
manufacturers had adequate warnings been provided during the course of employment and exposure, is a
jury question and the burden of proof lies with defendants. (pp. 21-23)
4. In addition to product-defect causation, a plaintiff must prove "medical causation:" that plaintiff's injuries
were proximately caused by defendants' products. Because of the difficult burden of proving medical
causation as to a specific product manufactured by a specific defendant, the Appellate Division adopted the
"frequency, regularity and proximity" test to establish liability in the multi-defendant asbestos-exposure
context. This test assigns liability only to those defendants to whose products the plaintiff can demonstrate
that he or she was intensely exposed. Sholtis is not limited to asbestos-exposure cases. (pp. 23-30)
5. Plaintiff has provided prima facie proof of "product-defect causation." To proceed with her strict-liability
claim, she need only demonstrate that knowledge of the potential hazards of exposure to defendants'
products existed within the petroleum industry at the relevant times. The evidence provided by plaintiff's
experts clearly are sufficient to survive a summary judgment on the element of product-defect causation. The
evidence is also sufficient to present a fact question for the jury regarding whether each individual defendant
knew or should have known of the potential hazards of its products. Therefore, plaintiff's negligence claim
also survives summary judgment on the element of product-defect causation. (pp. 31-32)
6. The deposition testimony and sworn statements of decedent's co-employees, in combination with the
deposition testimony of the Bessemer and Kingsland executives provided substantial evidence that decedent
was frequently, regularly and proximately exposed to petroleum-based products of each of the petroleum
defendants. The reports of plaintiff's experts provided medical and scientific evidence that decedent's
cumulative exposure to benzene and PAHs present in those petroleum products caused his liver and stomach
cancer. Thus, on the issue of liability, plaintiff's proofs provided sufficient product identification in respect of
the petroleum defendants to survive summary judgment as to those defendants. (pp. 32-39)
7. Plaintiff's evidence implicating the chemical defendants is far less developed. With the exception of
American Cyanamid, plaintiff has not yet engaged in extensive discovery as to the chemical defendants.
Therefore, summary judgment was premature. (pp. 39-41)
8. In view of the Legislature's choice to preserve joint and several liability in environmental tort actions,
except where fault can be apportioned, the shifting of the burden of apportionment to the defendants is
consonant with New Jersey law and with the Comparative Negligence Act. (pp. 41-43)
9. In view of the uncertainty in respect of whether Chevron and Texaco were prejudiced by the untimely
service of process, the Appellate Division was correct in remanding for an evidentiary hearing. (pp. 44-48)
Judgment of the Appellate Division is AFFIRMED. The matter is REMANDED to the Law Division
for proceedings consistent with this opinion and with the opinion of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN and COLEMAN join
in JUSTICE STEIN'S opinion. JUSTICE GARIBALDI did not participate.
SUPREME COURT OF NEW JERSEY
A-115/116/117/118/119/
120 September Term 1997
IDA JAMES, individually and as
Administratrix The Appellate
Division Prosequendum and General
Administratrix of the ESTATE OF
WALTER JAMES,
Plaintiff-Respondent,
v.
BESSEMER PROCESSING CO., INC.,
ROMAN HEART, BAKER LITE CO.,
AMERICAN CYANAMID COMPANY, LINDE
GASES OF THE MID-ATLANTIC, INC.,
MELLEN CHEMICALS, INC., POPE
CHEMICAL, now known as DAICOLOR-POPE, INC. and JOHN DOES 1-200,
Defendants,
and
HOOKER CHEMICAL CO., now known as
OCCIDENTAL CHEMICAL CORP., STANDARD
OIL, now known as EXXON COMPANY,
USA, TEXAS OIL, now known as TEXACO
INC., SHELL OIL, now known as SHELL
OIL COMPANY, CHEVRON OIL, now known
as CHEVRON U.S.A., INC., SUN OIL,
now know as SUN COMPANY INC., MOBIL
OIL, now known as MOBIL OIL
CORPORATION, MACARTHUR PETROLEUM,
now known as MACARTHUR PETROLEUM &
SOLVENTS COMPANY, PRIDE SOLVENTS,
now known as PRIDE SOLVENTS &
CHEMICAL CO. OF NEW JERSEY, INC.,
ASHLAND CHEMICAL, now known as
ASHLAND CHEMICAL, INC., AMOCO, now
known as AMOCO CORPORATION, CITGO,
now known as CITGO PETROLEUM
CORPORATION, NORTH AMERICAN PAINT
MANUFACTURING CO., now known as
NORTH AMERICAN PAINT COMPANY,
Defendants-Appellants.
Argued March 16, 1998 -- Decided July 27, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
301 N.J. Super 512 (1997).
James Crawford Orr argued the cause for
appellants Exxon Company, U.S.A., Occidental
Chemical Corp, Shell Oil Company, Mobil Oil
Corporation, Sun Company Inc., Ashland
Chemical, Inc., Texaco Inc., North American
Paint Company (Wilson, Elser, Moskowitz,
Edelman & Dicker, attorneys; Susan Karlovich,
on the brief).
Sally H. Atkins argued the cause for
appellant Chevron U.S.A. Inc. (Slowinski
Atkins, attorneys; Matthew S. Slowinski, of
counsel).
Ronald M. Gutwirth argued the cause for
respondent.
Mark L. Czyz on behalf of appellant CITGO
Petroleum Corporation relied upon the brief
submitted by Exxon Company, U.S.A.,
Occidental Chemical Corp, Shell Oil Company,
Mobil Oil Corporation, Sun Company Inc.,
Ashland Chemical, Inc., Texaco Inc., North
American Paint Company (Mattson & Madden,
attorneys).
Richard M. Mandel submitted a letter in lieu
of brief on behalf of appellants Pride
Solvents & Chemical Co. of New Jersey, Inc.
(O'Brien, Liotta & Mandel, attorneys).
Joel R. Clark submitted a brief on behalf of
appellants MacArthur Petroleum & Solvents
Company (McGivney & Kluger, attorneys, Mr.
Clark and Charles M. McGivney, Jr., on the
brief).
David S. Osterman on behalf of appellant
Amoco Corporation relied upon the brief
submitted by Exxon Company, U.S.A.,
Occidental Chemical Corp, Shell Oil Company,
Mobil Oil Corporation, Sun Company Inc.,
Ashland Chemical, Inc., Texaco Inc., North
American Paint Company (McCarter & English,
attorneys).
Michael D. Loprete submitted a brief on
behalf of amicus curiae Chemical
Manufacturers Association (Crummy, Del Deo,
Dolan, Griffinger & Vecchione, attorneys;
Mr. Loprete, Anthony P. LaRocco and Heather
L. Akawie, on the brief).
The opinion of the Court was delivered by
STEIN, J.
The critical issue presented by this appeal concerns the
specificity of proofs required to entitle plaintiff to a jury
trial on the question whether decedent's stomach and liver cancer
was proximately caused by prolonged, frequent and repetitive
exposure to defendants' petroleum and chemical products that
contained no warning of their hazardous propensities. Defendants
contend that the lack of proof of the specific content of their
individual products and lack of proof of specific exposure to
each product justified the Law Division's grant of summary
judgment.
Over the course of his twenty-six years of employment with
Bessemer Processing Company, Inc. (Bessemer), decedent Walter
James (James) was exposed on a daily basis to a wide array of
residues of petroleum products and other chemical substances,
many allegedly containing benzene, polycyclic aromatic
hydrocarbons and other human carcinogens. On February 8, 1990,
at the age of fifty-two, James died of stomach and liver cancer.
James's widow, plaintiff Ida James, brought this survivorship and
wrongful death action against multiple defendants, alleging that
they failed to warn of the dangerous propensities of the
substances they shipped to Bessemer and that James's continuous
exposure to those substances was the cause of his illness and
death.
The Law Division granted summary judgment to all defendants
on the ground that plaintiff would be unable to establish that
James's cancer was caused by specific products manufactured by
specific defendants. That court issued separate orders
dismissing defendant's complaint against various defendants on
procedural grounds. The Appellate Division reversed the summary
judgment order dismissing plaintiff's complaint against all named
defendants. James v. Chevron U.S.A., Inc.,
301 N.J. Super. 512,
522-23 (1997). The defendants affected by the summary judgment
order reversed by the Appellate Division were the following
petroleum manufacturers: Shell Oil Company (Shell), Exxon
Company, USA (Exxon), Amoco Corporation (Amoco), CITGO Petroleum
Corporation (CITGO), Chevron U.S.A., Inc. (Chevron), Texaco, Inc.
(Texaco), Sun Company, Inc. (Sunoco), and Mobil Oil Corporation
(Mobil)(collectively “the petroleum defendants”). Also affected
were the following manufacturers and suppliers of various other
chemical substances: Ashland Chemical, Inc. (Ashland),
Occidental Chemical Corporation (Occidental)(successor to named
defendant Hooker Chemical Company), Daicolor-Pope, Inc.
(Daicolor-Pope), Pride Solvents & Chemical Company of New Jersey,
Inc. (Pride), MacArthur Petroleum & Solvent Company (MacArthur),
and North American Paint Company (North American Paint)
(collectively “the chemical defendants”).See footnote 1 Additionally, the
Appellate Division reversed the separate orders dismissing
defendant's complaint on procedural grounds in favor of
defendants Texaco and Chevron, remanding for a hearing to
determine whether Chevron and Texaco were prejudiced by
plaintiff's untimely service of process upon them. Id. at 523.
The Appellate Division's holding reversing an additional order of
the Law Division granting summary judgment on procedural grounds
to Daicolor-Pope, MacArthur and North American Paint is not under
review by this Court.
The primary issue posed by this appeal is whether a
plaintiff in a toxic-tort, failure-to-warn case can establish a
prima facie case on the element of "medical causation" by
satisfying the "frequency, regularity and proximity" test
pronounced by the Appellate Division in Sholtis v. American
Cyanamid Co.,
238 N.J. Super. 8 (1989), absent evidence that the
illness was caused by specific products manufactured by specific
defendants. Additionally, we must determine whether a showing of
prejudice to the moving parties is required to support a trial
court's determination to dismiss a plaintiff's complaint without
prejudice pursuant to Rule 4:4-1.
The reconditioning process that took place at Bessemer was multi-staged and, according to Bessemer employees, each stage of the process exposed the workers to noxious fumes and chemicals. The first stage of the process was the emptying of the drums. Although by federal regulation the “empty” drums sent by oil producers were supposed to have no more than one inch of residue, Bessemer employees indicated in depositions that most drums contained as much as four or five gallons of waste material when they arrived at the Bessemer plant. The drums were first brought to the “cutting room” where workers uncapped the heads of the drums. The noxious fumes from the chemicals in the drums pervaded the cutting room, and workers in that room could not avoid inhaling those fumes. After the drums were uncapped, as much residue as could be removed prior to incineration and blasting was dumped into a “slop hole,” a pit approximately six-feet deep that collected beneath a conveyor. During this emptying process, waste material from the drums frequently spilled onto the skin and clothing of the workers. Twice a month, workers would empty or clean out the slop hole, partly with the aid of a front-end loader, and partly by removing the residue manually with shovels and buckets. James was frequently involved in cleaning out the slop hole, both as an operator of the front-end loader and manually with a shovel.
Next, the uncapped drums were turned upside down and placed on a drag-chain conveyor that transported them through a “tunnel incinerator” operated by Bessemer workers where the remaining residue in the drums was burned and charred by high temperature flames. The “strong and foul” smell of the burning chemicals permeated the area surrounding the incinerator and those workers who operated it inhaled the emanating fumes. The drums were then sand blasted to remove all of the charred material, releasing dust and fumes into the air to which the workers also were exposed. The drums were then washed with nitrate and soda, straightened by a “rolling machine,” sealed by a “head up machine” or “heading machine,” welded by a welding machine, and tested for holes by a steamer machine. The drums were then rewashed, placed in an oven to dry, and then painted by Bessemer employees. Following the completion of the reconditioning process, the drums were either resold or returned to the suppliers for reuse.
During his employment with Bessemer, James functioned predominantly as a “utility man,” available to fill in for absent workers at any position in the plant as required by his employer. Daniel Stewart, who worked for Bessemer from 1949 until 1984, indicated that he saw defendant perform every job required at the Bessemer plant, including cutting the heads off drums; operating the incinerator, sand blaster, rolling machines, and heading machines; welding and painting drums; and, as previously described, cleaning the slop hole. James was diagnosed with stomach cancer in October 1989. He died at the age of fifty-two on February 8, 1990. The cause of his death was “carcinoma with metastasis to the liver and peritoneum.”
Due to a lack of business, Kingsland and Bessemer ceased operations in June 1992. The business records that had been kept at Bessemer throughout the period of James's employment were “production documents” that indicated the number of drums that had been reconditioned. However, they did not indicate the name of the corporate customer that had provided to Kingsland the drums that were reconditioned at Bessemer, nor did they indicate the specific chemical residue contained in any particular drum. All other records were kept at Kingsland, including bills of lading and billing invoices indicating the number of drums picked up by Kingsland drivers from a specific customer, but not reflecting the content of the empty drums. Pursuant to the requirements of the Resource Conservation Recovery Act (RCRA), 42 U.S.C.A. 6901, et seq., each shipment of drums picked up by Kingsland contained a certification from the supplier of the drums attesting that the supplier used its best efforts to remove the residue in the drums. However, the RCRA certifications did not indicate the nature of the residue in the drums.
Beginning some time in the late 1980's, around the time that James was diagnosed with cancer, Kingsland began receiving Material Safety Data Sheets (MSDSs) from both the companies supplying drums for reconditioning and the companies supplying various products used in the reconditioning process. The MSDSs contained warnings of and safety instructions regarding the hazards of the residues and products received. However, although such MSDSs were provided for each substance that Kingsland potentially might receive, they did not necessarily indicate which specific products or residues a supplier had provided to Kingsland or in what quantities drums containing such residues may have been supplied. Kingsland officials indicated that all records generally were kept for three years and then destroyed. At some time within a few months after the cessation of operations at Kingsland and Bessemer in June 1992, Kingsland representatives destroyed all of the existing records that may have been pertinent to this litigation. Those defendant suppliers and manufacturers that responded to plaintiff's interrogatories all indicated that they knew of no records kept by their companies indicating the quantities, trade names or chemical compositions of any of the residues contained in drums sent to Bessemer by Kingsland for reconditioning.
Many of the drums that arrived at Bessemer had labels that listed the contents of the drum, displayed the name of the manufacturer of the contents, and contained some general health warnings that became more specific around the late 1980's. Those labels were removed as part of the incineration process. In November 1989, Kingsland received a citation from the Occupational Safety and Health Administration (OSHA) for failure to have a hazardous communication plan describing to its workers the hazards of residues contained in the drums with which they worked daily.
Because of the lack of documentation concerning the identity of the suppliers of the drums that were reconditioned at Bessemer and the identity of the material in those drums, plaintiff was required to rely predominantly on the memory of Bessemer employees and executives in her efforts to obtain discovery regarding that information. Before joining Bessemer as a defendant in this action, plaintiff served interrogatories on Bessemer, one of which asked for the identity of the chemical compositions and trade names of all of the substances to which James was exposed during his employment with Bessemer. Bessemer answered by explaining that James
was subject to exposure from any type of material that might be shipped in 55 gallon steel drums, except herbicides, pesticides and hazardous materials described in 49 C.F.R. 261.33(e)(acutely hazardous materials). Empty drums whose previous contents held the aforementioned material were not accepted at Bessemer. The majority of the empty drums, from 1960 to the mid eighties would have contained petroleum based products. From the early eighties to 1989, the mixture of the drum residues became highly varied, and included but [was] not limited to: resins, dyes, paints, solvents, fragrances and unknown substances.
Plaintiff deposed Glenn Richard, the environmental and
regulatory affairs officer for both Kingsland and Bessemer
between 1984 and 1992, who identified Shell, Exxon, Chevron,
Texaco, Sunoco, CITGO, Gulf and Mobil as entities that
historically had provided drums to Kingsland. He testified that
those drums generally contained residues from finished oil
products or from raw material constituents of finished products.
Richard further indicated that although Kingsland never dealt
directly with Amoco, the Kingsland and Bessemer plants may have
received for reconditioning drums containing residues of Amoco
products. Richard identified Ashland Chemical, American Cyanamid
Company, MacArthur Petroleum and Mellen Chemicals (acquired in
1990 by defendant Pride Solvents & Chemical Company) as entities
that supplied drums containing chemicals and solvents. He
indicated that Pope Chemical sent drums containing residues of
blue and yellow dyes, and that North American Paint, Pan
Chemical, Whittaker Chemical and Rising Star Coating provided the
paints and liners used in the reconditioning process. Richard
indicated that during peak years as many as 150,000 drums per
year were sent to Bessemer for reconditioning, with 1,200 drums
being reconditioned on a “good day.”
Irving Klein, president and half-owner of Bessemer, who
began working for Kingsland as a salesman in 1954, indicated that
Texaco, Exxon and Shell were Kingsland's three biggest customers,
with CITGO, Mobil and Sunoco not far behind. Klein testified
that Texaco, Exxon, Shell and CITGO were customers for
approximately forty years, American Cyanamid Company for thirty-five years, and Pope Chemical for over twenty years. Chevron and
Baker Lite Company had been customers for approximately twenty-five years. Ashland Chemical and Prime Lube, an entity that
filled orders for Amoco and Arco, had been customers for six
years, MacArthur Petroleum & Solvent and Mellen Chemicals for
four years, and Mobil for two years. Klein also recalled buying
paint from North American Paint and Rising Star Coating, as well
as selling reconditioned drums to North American Paint. Klein
did not identify Occidental or Linde Gases as customers or
suppliers.
Plaintiff deposed or received statements from five former
Bessemer employees, each of whom had some recollection of the
nature of the substances to which the employees were regularly
exposed, as well as the manufacturers and/or suppliers of those
substances. Daniel Stewart regularly observed drums from Shell,
Exxon, Chevron and Texaco that generally contained gasoline and
motor oil, and recalled that other entities that regularly
supplied drums included American Cyanamid, Hooker Chemical, Roman
Heart and Baker Lite. Stewart's certification stated that
virtually all of the 55-gallon drums received by Bessemer had
product residue left inside, usually amounting to four or five
gallons of residue material, and that all drums emitted strong
odors. The odor from some drums was so foul that they had to be
stored outside for two to three days before they could be
processed.
Roosevelt Lewis, a Bessemer employee from 1963 until 1992,
testified at deposition that he saw drums from Shell, Texaco,
Chevron, Exxon, Sunoco, Amoco, Mobil, CITGO, American Cyanamid
and Pope Chemical “every day” at the Bessemer plant. He recalled
that the drums from the petroleum defendants contained residues
including light and dark oils, gasoline, and antifreeze. He
recognized the gasoline and oil residues by sight and smell,
describing the oil residues as “burned, black and sticky,” and
noting that the fumes from the drums sent by Exxon, Shell, Texaco
and CITGO were “pretty strong,” and that drums from those
manufacturers at times contained “quite a bit of residue.” He
indicated that the drums from Pope contained blue, black and
green dyes. On cross-examination, Lewis indicated that not all
of the drums had labels, but that he identified some regular
suppliers based on overhearing the dispatcher who sent trucks to
the suppliers for pickups.
Eddie Kennedy, who worked at Bessemer for the entire period
of its operations, recalled seeing on a regular basis drums from
Chevron, CITGO, Mobil, Texaco, Exxon, Sunoco, Shell, Amoco and
Gulf that contained “oil residue which was light to dark black in
color.” He described “frequently” seeing Texaco drums containing
oils, black oils and gasoline.
Thomas Mewborn, a maintenance man and shop steward at
Bessemer from 1977 until 1992, often unloaded drums arriving at
the plant that contained gasoline, crude oil, diesel fuel,
hydraulic oil and antifreeze. Although he could not specifically
recall which entities supplied drums containing which residues,
Mewborn regularly observed drums from Exxon, Shell, Texaco and
CITGO. Johnny Ramey, a Bessemer employee from 1976 until 1990,
recalled seeing drums from Exxon, Shell, Texaco, Chevron, Gulf,
and CITGO. He testified specifically that the Exxon drums
contained gas and oil, and he described using oil residue from
some of the drums to operate his personal car.
James Davis, James's brother-in-law, worked as a drum
inspector at Kingsland from 1965 until 1990. He recalled that
the drums forwarded to Bessemer included drums from Texaco,
Shell, Exxon, Mobil, Chevron and Sunoco. Those drums contained
such substances as heavy industrial oil, machine oil,
transmission oil, motor oil and antifreeze. Davis also traveled
approximately once a week to the Bessemer plant, where he recalls
having seen drums from those oil companies, as well as from
American Cyanamid and Hooker Chemical. Davis recalled drums from
Hooker Chemical that emitted such a strong and foul odor that
employees needed to wear masks in order to handle the drums.
Additionally, Lewis, Kennedy, Mewborn and Davis each
recalled seeing drums containing formaldehyde residue, but could
not identify the entity or entities that supplied those drums.
Mewborn indicated that the fumes from the formaldehyde drums were
particularly strong, and that employees handling those drums
would wear charcoal filter masks. Lewis, Kennedy and Stewart
each observed drums containing embalming fluid, but could not
identify the entity or entities from which those drums came.
In addition to the information elicited during discovery
from lay witnesses, the record before the Law Division on
defendants' motion for summary judgment included the reports of
plaintiff's toxicological, medical and economic experts.
Plaintiff's expert in toxicology, Dr. Myron Mehlman, reviewed
summaries of James's medical records, summaries of deposition
transcripts and witness statements, as well as scientific,
governmental and medical literature on the carcinogenicity of
various chemicals to which James was exposed during his
employment at Bessemer. Dr. Mehlman cites several studies dating
back as far as 1928 indicating the health risks of benzene
exposure and describes decades-old epidemiological studies
revealing a causative link between cancer and exposure to benzene
and polycyclic aromatic hydrocarbons (PAHs) found in gasoline and
petroleum products.
The toxicologist's report explains that “[b]enzene is
present in many petroleum products, petroleum distillates, jet
fuels, diesel fuels, crude oil, and is a significant component of
gasoline (up to 6"),” and that “[b]enzene is currently classified
by the Environmental Protection Agency (EPA), the American
Conference of Governmental Industrial Hygenists (ACGIH), and IARC
[the International Agency for Research on Cancers] as a human
carcinogen.” The report adds that “[a]nimal studies . . . have
clearly and without question demonstrated the carcinogenic
effects of benzene . . . .”
Dr. Mehlman indicated that “PAHs are a group of chemicals
that are present in oil, petroleum products, and tobacco smoke.
There are more than 100 different PAH compounds. Usually humans
are not exposed to an individual PAH alone, but to a mixture of
PAHs.” The report indicates PAHs can enter the body through
inhalation or skin contact, and that the primary exposure to PAHs
occurs in the workplace. Many of the PAHs have been found to
cause cancer in animals, and “[r]eports on humans show that
individuals exposed to PAHs by inhalation or skin contact for
long periods [or] to mixtures that contain PAHs and other
compounds can also develop cancer.” The Department of Health and
Human Services has determined that six PAH compounds are
carcinogens. IARC classifies thirteen PAH compounds as “having
sufficient evidence for carcinogenicity (meaning they are human
carcinogens).” The EPA has also determined that those thirteen
PAH compounds are “probable human carcinogens,” meaning that they
more likely than not cause cancer.
Based on the testimony of Bessemer workers and the MSDSs
provided in discovery by Shell and Exxon, Dr. Mehlman determined
that the chemicals and products to which James was exposed
included black oils, motor oils, PAHs, solvents and
formaldehydes. He noted that many of the MSDSs provided by Exxon
“indicate that numerous products contained extremely high levels
of benzene and PAH's.” Based on the evidence obtained by
plaintiff during discovery and on numerous epidemiological and
animal studies, Dr. Mehlman concluded that
workplace exposures to various petroleum
products (i.e., benzene, gasoline, mineral
spirits, mineral oils) and chemicals, which
contain gasoline, aromatic hydrocarbons, such
as benzene, toluene, xylene, ethyl benzene,
naphtha, acrylonitrile, formaldehyde,
polycyclic aromatic hydrocarbons (i.e.,
benzo-alpha-pyrene), light cat-cracked
naphtha (“LCCN”) and other chemicals caused
Mr. James to suffer from stomach and liver
cancer.
Plaintiff also presented two reports of her medical expert,
Dr. Rowland Goodman. Relying on the evidence obtained during
discovery and on the report of the toxicological expert, Dr.
Goodman concluded that
the patient absorbed one or more of these
carcinogens through his gastrointestinal
tract and through his lungs. These chemicals
then spread to his stomach causing a
derangement of the DNA mechanism such that
one or more of the cells grew in an
uncontrolled fashion clinically known as
cancer.
Finally, plaintiff offered the report of an economic expert,
Dr. Frank Tinari, who estimated “the total present value of the
projected losses resulting from the death of Walter James” at
$1,243,830. That amount included estimated values for loss of
income, loss of household services, and loss of companionship to
plaintiff.
II
[U]nder strict liability, the seller's knowledge is presumed; it is “assume[d] the seller knew of the product's propensity to injure as it did.” In negligence cases, such knowledge must be proved; the standard is what the manufacturer “knew or should have known.”
[Id. at 239 (quoting Phillips v. Kimwood
Machine Co.,
525 P.2d 1033, 1039 (Or.
1974)).]
Here, plaintiff alleges that defendants failed to warn James
of the dangerous propensities of their products, the residues
contained in the drums sent for reconditioning, and the products
sold for use in the reconditioning process, and that those
products were the cause of James's cancer and of his death from
that illness. She asserts both strict-liability and negligence
claims.
[t]o establish a cause of action in strict liability for a defective product, a plaintiff must prove that the defect existed when the product left the defendant's control and that the defect caused injury to a reasonably foreseeable user. In a failure-to-warn case, the alleged product defect is not a flaw in the structure or design of the product itself. Rather, the defect is the absence of a warning to unsuspecting users that the product can potentially cause injury. Nevertheless, the same elements to establish a cause of action apply when a plaintiff's claim concerning a defective product is based on a failure to warn.
[c]ausation is a fundamental requisite for establishing any product-liability action. The plaintiff must demonstrate so-called product-defect causation--that the defect in the product was a proximate cause of the injury. When the alleged defect is the failure to provide warnings, a plaintiff is required to prove that the absence of a warning was a proximate cause of his harm.
with respect to the issue of product-defect causation in a product-liability case based on a failure to warn, the plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning had one been provided, and that the defendant in order to rebut that presumption must produce evidence that such a warning would not have been heeded.
We stressed that the effect of the heeding presumption would be to “direct factual inquiries to the real causes of injury in a failure-to-warn case.” Id. at 601. In other words, it would shift the plaintiff's burden on the element of causation away from proof that the defendant's failure to warn caused the plaintiff's exposure to the defendant's product (product-defect causation), and toward proof that the defendant's product caused the plaintiff's injury or illness (medical causation), infra at ___ (slip op. at 22-30).
As a result of the heeding presumption, the burden on a plaintiff to establish product-defect causation in the failure-to-warn context is not an onerous one. Initially, the plaintiff must establish that the defendant had a duty to warn. To establish such a duty, the plaintiff must satisfy “a very low threshold of proof in order to impute to a manufacturer sufficient knowledge to trigger the duty to provide a warning of the harmful effects of its product.” Id. at 599. In cases proceeding under a theory of strict liability, knowledge of the harmful effects of a product will be imputed to a manufacturer on a showing that “knowledge of the defect existed within the relevant industry.” Ibid. Once proof of such knowledge in the industry has been established, triggering the duty to warn, the plaintiff must show that an adequate warning was not provided. When proceeding under a theory of negligence, the plaintiff must demonstrate that the specific defendant knew or should have known of the potential hazards of the product. Freund, supra, 87 N.J. at 239. Then, assuming that the heeding presumption is unrebutted, it may be presumed that the defendant's failure to warn caused the plaintiff's harmful exposure to the product. Thus, “product-defect causation” in the failure-to-warn context is presumed upon proof that the defendant had a duty to warn and does not require proof of actual causation to satisfy the plaintiff's burden on that element. A plaintiff must introduce evidence that the defendant's failure to warn of the hazards of its product led to plaintiff's exposure only if it becomes necessary to defeat a defendant's attempt to rebut the heeding presumption with its own proofs.
As noted by the court below, the fact that Bessemer may have failed its employees by not warning or instructing them regarding the hazards of toxic exposure in the workplace does not necessarily relieve defendants from liability for failure to warn. James, supra, 301 N.J. Super. at 539-41. In the employment context, a manufacturer's duty to warn of the dangers posed by its products extends to both the employer and the employees of the recipient entity. Coffman, supra, 133 N.J. at 606-09. The heeding presumption also applies to both the employer and the employee. Id. at 607. Again, that heeding presumption is rebuttable with respect to either the employer or the employee. We held in Coffman that
to overcome the heeding presumption in a failure-to-warn case involving a product used in the workplace, the manufacturer must prove that had an adequate warning been provided, the plaintiff-employee with meaningful choice would not have heeded the warning. Alternatively, to overcome the heeding presumption, the manufacturer must show that had an adequate warning been provided, the employer itself would not have heeded the warning by taking reasonable precautions for the safety of its employees to take measures to avoid or minimize the harm from their use or exposure to the dangerous product.
This Court has emphasized for over a decade the “extraordinary and unique burdens facing plaintiffs who seek to prove causation in toxic tort litigation.” Rubanick v. Witco Chem. Corp., 125 N.J. 421, 433 (1991); see also Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992)(noting that in toxic-tort context “proof that a defendant's conduct caused decedent's injuries is more subtle and sophisticated than proof in cases concerned with more traditional torts”); Ayers v. Jackson Township, 106 N.J. 557, 585-87. In Ayers, we elaborated on the unique difficulties facing toxic-tort plaintiffs:
By far the most difficult problem for plaintiffs to overcome in toxic tort litigation is the burden of proving causation. In the typical tort case, the plaintiff must prove tortious conduct, injury and proximate cause. Ordinarily, proof of causation requires the establishment of a sufficient nexus between the defendant's conduct and the plaintiff's injury. In toxic tort cases, the task of proving causation is invariably made more complex because of the long latency period of illnesses caused by carcinogens or other toxic chemicals. The fact that ten or twenty years or more may intervene between the exposure and the manifestation of disease highlights the practical difficulties encountered in the effort to prove causation.
The problem of proving medical causation with respect to a specific defendant's products is further compounded where, as here, a plaintiff has been exposed to multiple products of multiple defendants over an extended period of time. See, e.g., Sholtis, supra, 238 N.J. Super. at 14-16 (reviewing facts evincing plaintiffs' occupational exposure over more than four decades to asbestos products of multiple defendants). In such a case, the burden of proving that the plaintiff's exposure to the products of any single defendant was a “substantial factor” causing or exacerbating the plaintiff's illness is a formidable one. The Appellate Division panel in Sholtis relied on a Fifth Circuit decision that had addressed a similar issue in determining causation in a multiple-defendant, asbestos-exposure context. Id. at 26-27. In Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed.2d 107 (1974), the court stated:
In the instant case, it is impossible, as a practical matter, to determine with absolute certainty which particular exposure to asbestos dust resulted in injury to Borel. It is undisputed, however, that Borel contracted asbestosis from inhaling asbestos dust and that he was exposed to the products of all the defendants on many occasions. It was also established that the effect of asbestos dust is cumulative, that is, each exposure may result in an additional and separate injury. We think, therefore, that on the basis of strong circumstantial evidence the jury could find that each defendant was the cause in fact of some injury to Borel.
Consistent with the reasoning of the court in Borel, and
borrowing language from the Fourth Circuit's opinion in Lohrmann
v. Pittsburgh Corning Corp.,
782 F.2d 1156, 1162-63 (4th Cir.
1986), the court in Sholtis, supra, 238 N.J. Super. at 28-29,
adopted a “frequency, regularity and proximity” test to establish
liability in the multiple-defendant, asbestos-exposure context.
Under that test, in order to prove that exposure to a specific
defendant's product was a substantial factor in causing or
exacerbating the plaintiff's disease, the plaintiff is required
to prove “an exposure of sufficient frequency, with a regularity
of contact, and with the product in close proximity” to the
plaintiff. Id. at 28. The court reemphasized that its adoption
of such a standard was required by the unique difficulties faced
by a plaintiff attempting to establish causation in the toxic-tort context: “Since proof of direct contact is almost always
lacking . . . courts must rely upon circumstantial proof of
sufficiently intense exposure to warrant liability.” Id. at 29
(footnote omitted).
In the context of occupational asbestos-exposure cases, the
“frequency, regularity and proximity test” first pronounced in
Lohrmann, supra, 782 F.
2d at 1162-63, has often been applied in
other jurisdictions. See, e.g., Shetterly v. Raymark Indus.,
Inc.,
117 F.3d 776, 780 (4th Cir. 1997)(applying Maryland law);
Jackson v. Anchor Packing Co.,
994 F.2d 1295, 1301 (8th Cir.
1993)(applying Arkansas law and noting that “a majority of courts
have adopted the 'frequency, regularity and proximity'
standard”); Tragarz v. Keene Corp.,
980 F.2d 411, 420 (7th Cir.
1992)(indicating that Illinois has adopted frequency, regularity
and proximity test, but noting “it is not a rigid test with an
absolute threshold level necessary to support a jury verdict”);
Slaughter v. Southern Talc Co.,
949 F.2d 167, 171 & n.3 (5th Cir.
1991)(adopting frequency-regularity-proximity test for causation
in asbestos cases and noting that “[c]ourts in every circuit but
the D.C. Circuit, and the First, Second and Fifth Circuits have
adopted the Lohrmann test. In addition, Michigan, Massachusetts,
New Jersey, Illinois, Pennsylvania, Maryland, Nebraska, and
Oklahoma have adopted the test.”); Robertson v. Allied Signal,
Inc.,
914 F.2d 360, 380 (3d Cir. 1990)(applying Pennsylvania law
and noting that frequency, regularity and proximity analysis
applies to expert scientific testimony as well as to co-worker
testimony of exposure). Cf. Ingram v. ACandS, Inc.,
977 F.2d 1332, 1343-44 (9th Cir. 1992)(rejecting frequency, regularity and
proximity test where Oregon law applied because causation burden
under Oregon law is less stringent, requiring only evidence that
defendant's asbestos was present in workplace to create jury
question).
We stress that the “frequency, regularity and proximity”
test bears no relationship to theories of collective liability
that some courts have adopted in contexts where the specific
tortfeasor or tortfeasors that caused the plaintiff's injury
cannot be identified. The “frequency, regularity and proximity”
test assigns liability only to those defendants to whose products
the plaintiff can demonstrate he or she was intensely exposed.
The court in Sholtis invoked the apt analogy of a multi-vehicle
accident:
What we have before us are not products
of unknown manufacturers whose responsibility
must be reconstructed by reference to
industry market percentages, but rather known
manufacturers' products whose contact with
plaintiff must be proven or reasonably
approximated by inference. . . . This
situation bears some resemblance to a
plaintiff being injured in a multi-vehicle
accident caused by several culpable parties,
whose conduct and defective products all
contributed to the eventual injuries.
at least for summary judgment purposes, we are convinced that the Sholtis analysis is relevant to the “medical causation” issue in a toxic-tort case, such as this, involving occupational exposure to cancer-causing substances manufactured by a determinant number of defendants, all of whom, it is alleged, acted tortiously by failing to warn of the dangerous propensities of their products.
We recognize that the dynamics and causative
effects of exposure to asbestos dust may
differ from the disease process resulting
from exposure to chemicals containing known
carcinogens. However, these differences
should not cause rejection of the “frequency,
regularity and proximity” model. Based on
circumstantial evidence, the jury may find in
any toxic-tort case, that a plaintiff in the
workplace was exposed to the cancer-causing
products of defendant-manufacturers on many
occasions, and that the exposures were a
substantial factor in causing plaintiff's
cancer. Application of the “frequency,
regularity and proximity” test necessarily
focuses on the cumulative effects of exposure
to the carcinogen over a prolonged period of
time, the dosage of exposure and mode of
absorption into the human body. Bernard D.
Goldstein and Mary Sue Henifin, Reference
Manual on Sci. Evid. 181 (Federal Judicial
Center 1994). . . . Whether the claim is
asbestosis or stomach cancer, the frequency,
regularity and proximity of exposure will be
an important and fundamental factual link in
plaintiff's experts' analysis and methodology
in reaching an ultimate theory of causation.
We agree with the reasoning and conclusion of the Appellate Division, and hold that 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.
A
when deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party.
The deposition testimony and sworn statements of James's co-employees, supra at ___ (slip op. at 6-7, 11-14), in combination
with the deposition testimony of the Bessemer and Kingsland
executives, supra at ___ (slip op. at 9 - 11), provided
substantial evidence that James was frequently, regularly and
proximately exposed to petroleum-based products of each of the
petroleum defendants. James's duties exposed him every workday
to fumes from the residues in the drums reconditioned at the
Bessemer plant. Specifically, his work cleaning the slop hole
often would have resulted in residue making direct contact with
his skin and clothing. Each of the petroleum defendants was
specifically identified by multiple fact witnesses as regularly
having provided drums containing residues of petroleum-based
gasoline or oil products. Shell, Exxon and Texaco were
identified as suppliers by every lay witness affiliated with
Kingsland and Bessemer. CITGO was identified as a supplier by
every witness except Daniel Stewart; Mobil and Sunoco by every
witness except Stewart, Thomas Mewborn and Johnny Ramey; and
Chevron by every witness except Mewborn. Glenn Richard and
Irving Klein indicated that drums containing residues of Amoco
products were supplied to Kingsland and Bessemer by
intermediaries, and Amoco products were also identified by
Roosevelt Lewis, Eddie Kennedy and James Davis. The Bessemer
workers also described the nature of the residues contained in
those drums as specifically as they were able. Daniel Stewart
described the residues as gasoline and motor oil; Roosevelt Lewis
as light and dark oils, gasoline and antifreeze; Eddie Kennedy as
oils, black oils and gasoline; Thomas Mewborn as gasoline, crude
oil, diesel fuel, hydraulic oil and antifreeze; Johnny Ramey as
gas and oil; and James Davis as heavy industrial oil, machine
oil, transmission oil and antifreeze. James's co-workers also
testified regarding the frequency and intensity of the workers'
exposure to those products, either through inhalation of fumes or
by direct contact with the skin and clothing.
The reports of plaintiff's experts, supra at ___ (slip op.
at 14-17), provided medical and scientific evidence that James's
cumulative exposure to benzene and PAHs present in those
petroleum-based products caused James's stomach and liver
cancer.See footnote 2 Plaint