James v. Bessemer Processing Co., Inc.

Page 279

155 N.J. 279

714 A.2d 898, Prod.Liab.Rep. (CCH) P 15,310

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.

Supreme Court of New Jersey.

Argued March 16, 1998.

Decided July 27, 1998.

James Crawford Orr, Newark, for defendants-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, Newark, for defendant-appellant Chevron U.S.A. Inc. (Slowinski Atkins, attorneys; Matthew S. Slowinski, of counsel).

Ronald M. Gutwirth, Orange, for plaintiff-respondent.

Mark L. Czyz, Newark, on behalf of defendant-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, Union, submitted a letter in lieu of brief on behalf of defendants-appellants Pride Solvents & Chemical Co. of New Jersey, Inc. (O'Brien, Liotta & Mandel, attorneys).

Joel R. Clark, Hackensack, submitted a brief on behalf of defendants-appellants MacArthur Petroleum & Solvents Company (McGivney & Kluger, Florham Park, attorneys, Mr. Clark and Charles M. McGivney, Jr., on the brief).

David S. Osterman on behalf of defendant-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, Newark, 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 plaintiff'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, 694 A.2d 270 (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"). ¹ Additionally, the Appellate Division reversed the separate orders dismissing plaintiff'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, 694 A.2d 270. 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, 568 A.2d 1196 (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.

I

As this appeal arises from the Law Division's order of summary judgment in favor of defendants, we review the evidentiary record in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995). James began his employment with Bessemer in September 1963 at the age of twenty-five and worked as a general laborer at Bessemer's Newark facility for twenty-six years until his illness forced his retirement in October 1989. Bessemer, a wholly-owned subsidiary of Kingsland Drum and Barrel (Kingsland), 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. Generally, Kingsland would retain those drums that could be cleaned through a hot water and caustic washing process, and would forward to Bessemer those drums that either contained stickier and more viscous residues requiring incineration and blasting, or those drums that needed to be recontoured because of physical damage. In all, Kingsland forwarded to Bessemer approximately thirty percent of the drums it received from its customers. The entities supplying drums to Kingsland for reconditioning had no direct contact with Bessemer, because all drums were originally sent to Kingsland and Kingsland billed the entities who supplied the drums for the reconditioning services performed by Bessemer.

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- 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...