RICHARD G. KELLY v. POLYLITE ROOF DECKS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6323-07T16323-07T1

RICHARD G. KELLY and

SANDRA M. ABEL-KELLY,

Plaintiffs-Appellants,

v.

POLYLITE ROOF DECKS, INC.;

E.R. BARRETT, INC.; BARRETT

COMPANY; BFS DIVERSIFIED

PRODUCTS, L.L.C.; FIRESTONE

BUILDING PRODUCTS COMPANY;

HONEYWELL INTERNATIONAL, INC.;

KARNAK CORPORATION; OWENS-CORNING;

TRUMBULL ASPHALT COMPANY; and

W.P. HICKMAN SYSTEMS, INC.,

Defendants-Respondents.

_______________________________________________

 

Argued October 20, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8739-02.

Stephen T. Sullivan, Jr. argued the cause for appellants (Keefe Bartels, attorneys; Mr. Sullivan and Patrick J. Bartels, on the brief).

Christopher Gibson argued the cause for respondents BFS Diversified Products, L.L.C. and Firestone Building Products Company (Archer & Greiner, attorneys; Mr. Gibson, of counsel and on the brief; Patrick M. Flynn, on the brief).

Nancy Giacumbo argued the cause for respondent Karnak Corporation (McGivney & Kluger, P.C., attorneys; Ms. Giacumbo, William D. Sanders and Eric M. Gernant, II, on the brief).

Robert W. Rowan argued the cause for respondents Owens-Corning and Trumbull Asphalt Company (Kelley Jasons McGowan Spinelli & Hanna, LLP, attorneys; W. Matthew Reber, of counsel and on the brief; Mr. Rowan, on the brief).

Gary Potters argued the cause for respondent W.P. Hickman Systems, Inc., (Potters & Della Pietra LLP, attorneys; Mr. Potters, of counsel and on the brief; Drew Krause and Michele DeLuca, on the brief).

Edward J. Bilinkas, attorney for respondent E. R. Barrett, Inc., joins in the brief of respondents Owens-Corning and Trumbull Asphalt Company.

Gibbons, P.C., attorneys for respondent Honeywell International, Inc., join in the brief of respondents W.P. Hickman Systems, Inc., BFS Diversified Products, L.L.C., Owens-Corning and Trumbull Asphalt Company.

Respondent Polylite Roof Decks, Inc., did not file a brief.

Respondent Barrett Company did not file a brief.

PER CURIAM

Plaintiffs Richard G. Kelly and his wife, Sandra M. Abel-Kelly, appeal from the July 25, 2008 order of the Law Division that dismissed with prejudice their second amended complaint against defendants Polylite Roof Decks, Inc. (Polylite); E.R. Barrett, Inc. and Barrett Company (collectively, Barrett); BFS Diversified Products, L.L.C. (BFS); Firestone Building Products Company (Firestone); Honeywell International, Inc. (Honeywell); Karnak Corporation (Karnak); Owens-Corning; Trumbull Asphalt Company (Trumbull); and W.P. Hickman Systems, Inc. (Hickman) (collectively, defendants), for failure to comply with a previously-entered case management order. Having considered the record and arguments of counsel, we reverse.

I.

This litigation has proceeded for more than six years. Plaintiff's second amended complaint, filed in February 2004, generally alleged that while working as a roofer for defendants Polylite and Barrett, he developed acute myelogenous leukemia (AML) from occupational exposure to products manufactured by the other defendants that contained carcinogens, including benzene. Discovery has been ongoing, and the litigation has been actively case-managed by a series of judges with numerous case management orders entered as a result.

One such order required plaintiff to produce, by October 29, 2003, the reports of any treating physicians or experts demonstrating a nexus between "exposure to substances contained in roofing products" used by plaintiff during his employment with Barrett, and the onset of his disease. A second case management order extended the deadline for experts' reports, but required plaintiff to complete discovery directed at the manufacturer defendants "as to the issue of causation" by November 15, 2003.

On November 28, 2003, plaintiff produced the report of Dr. Richard J. Hamilton. After review of plaintiff's medical records, the Material Safety Data Sheets (the MSDS) provided by his employers, transcripts of plaintiff's deposition, and various scientific literature, Hamilton opined that AML was "a specific form of cancer that can be caused by chemical exposure, and is well described as a result of workplace exposure to benzene." He further concluded that plaintiff's "employment as a roofer exposed him to chemical carcinogens via the lungs . . . and skin . . . , as well as by ingestion (fine dust and debris particles entering the [gastro-intestinal] tract during swallowing)." Noting that coal tar fumes and dust contain benzene, toluene, xylene, and other chemicals, and that benzene was a fractional component of certain roofing adhesives, Hamilton stated that certain Honeywell and Hickman products contained coal tar. He concluded that after being diagnosed with AML, plaintiff's clinical course was "consistent with a chemically induced leukemia" and, within a reasonable degree of medical certainty, "his AML was the result of exposure to environmental carcinogens." Hamilton acknowledged that he could not "be medically certain which specific substance was the source of carcinogens . . . ."

During the ensuing months of early 2004, plaintiff entered into a series of voluntary dismissals without prejudice against several of the manufacturer defendants. However, in November 2004, plaintiff filed a substitution of attorney. After additional discovery, on September 2, 2005, plaintiff moved to reinstate the complaint against all manufacturer defendants previously dismissed. The notice of motion was accompanied by the certification of Melvyn J. Kopstein, Ph.D.

"[U]tilizing materials in the peer[-]reviewed scientific literature, government . . . documents and websites, and textbooks and reference manuals in the field of chemistry and chemical engineering[,]" Kopstein noted that although the MSDS from plaintiff's employer uniformly neglected to list benzene as an ingredient in any of these manufacturers' products, other industrial-grade "petrochemicals" such as toluene, xylene and hexane, all of which contain benzene, were listed as components of the products. Kopstein opined, within a "reasonable degree of scientific certainty," that plaintiff had experienced "high occupational exposure" to several products containing benzene during his employment with Barrett. Plaintiff's motion to restore the complaint against previously dismissed defendants was granted.

After a January 31, 2007 telephonic case management conference, plaintiff submitted a proposed order "agree[ing] to serve . . . expert reports describing defendants' specific causation no later than . . . April 2, 2007." On April 9, plaintiff served all defendants with the report of Dennis M. Stainken, Ph.D., a toxicity expert. Stainken had reviewed plaintiff's deposition, medical records, the MSDS of several products manufactured by defendants, and several scientific articles regarding studies that linked asphalt, coal tar, polycyclic aromatic hydrocarbons, and benzene to AML. Noting that plaintiff worked in daily proximity with "materials containing leukemogens and carcinogens[,]" Stainken opined that "[p]hysical exertion has been recognized as a factor that can influence the inhalation and intake of chemicals as the depth and frequency of breathing alters to accommodate bodily exertions," and that plaintiff's "expos[ure] to multiple agents concurrently" increased the risk. Stainken concluded "with a reasonable degree of scientific certainty" that plaintiff experienced a threshold of benzene exposure during his employment with Barrett that was a causal factor in his development of AML.

Further case management orders were entered as discovery continued. On September 10, 2007, plaintiff served notice on defendants that he had "preliminarily determined to sample defendants' products and conduct constructive testing." On October 15, apparently in response to disagreements as to the production of samples, the judge entered a tenth case management order requiring all parties to convene by November 16, 2007 "to assess what . . . materials will be produced in response to plaintiff[']s . . . request for product exemplars . . . ."

After two other case management conferences in March and April, the judge entered an eleventh order on April 15, 2008. It directed plaintiff to "identify [his] method of exposure" and "provid[e] a list of products allegedly causing and/or contributing to [his] AML" by May 2. On April 29, 2008, plaintiff served defendants with a supplemental report of Stainken dated March 31. Stainken again identified plaintiff's methods of exposure as "dermal contact" and "inhalation" as a result of plaintiff's frequent and regular proximity to various roofing products that contained coal tar and asphalt. The supplemental report reiterated that plaintiff's "physical activity and exertion resulted in increased inhalation and dermal intake of chemicals . . . ."

Another case management conference ensued on May 21, resulting in the twelfth case management order entered on June 3. That order: 1) extended discovery to December 31, 2008; 2) required depositions of the defendants' corporate representatives to be completed by August 31; 3) required plaintiff to produce "all expert reports by September 30"; 4) required defendants to "produce their expert reports by November 30"; and 5) required defendants to file "any motions pertaining to plaintiff[']s compliance with the April 15, 2008[] Case Management Order" by June 4.

On June 3 and 4, Karnak and Hickman moved to dismiss the complaint for failure to comply with the April 15, 2008 case management order. See R. 4:23-2(b)(3). On June 24, BFS also moved to dismiss the complaint on the same grounds, "or, in the alternative, for entry of an Order compelling plaintiff . . . to comply with the April 15, 2008 Case Management Order."

Plaintiff's counsel submitted a certification in opposition to the motion, attaching as exhibits Stainken's two reports, copies of the MSDS's furnished by Hickman and Karnak, and the deposition of plaintiff that was taken over three days in 2002. We briefly summarize some of that testimony.

Plaintiff worked for Barrett from 1996 until he became ill in 2001, mostly removing, repairing, or installing commercial roofs. Plaintiff worked on several different kinds of roofs, including rubber roofs using Firestone products, hot tar roofs, which were either asphalt or pitch, and some metal roofs. Plaintiff estimated that half his time was spent on rubber roofs, while the other half was spent installing asphalt or pitch roofs. Plaintiff estimated that he had worked on approximately forty to sixty pitch roofs, and approximately eighty to ninety asphalt roofs, during his tenure with Barrett. Frequently, the old roof that had to be removed was itself made of asphalt or pitch.

Plaintiff did not wear protective gear or a mask when removing a roof; he would wear gloves if available, though Barrett did not provide any gloves or protective gear. At least fifty percent of the time, hot asphalt was used so the insulation would adhere to the roof. Plaintiff's eyes would burn and his skin would itch as result of using the adhesive.

The pitch material would be melted in big pots emitting "smoke and fumes . . . ." In particular, the pitch manufactured by Hickman would emit "green smoke." The Hickman pitch was, in plaintiff's opinion, "probably . . . the worst . . ." with which to work. Plaintiff came in close proximity to the actual pitch product because "each sheet that [he] applied [was] attached via some kind of pitch material." He was constantly breathing in the fumes created by the hot pitch tar, and would "get sick to [his] stomach." His eyes would water. Plaintiff would also get chemical burns on his face and he would sometimes vomit if he inhaled enough of the smoke, which he described as "pretty hard to stay away from." Plaintiff would also get headaches. His reactions worsened during his last six months of employment.

Plaintiff could not recall all of the specific brands of asphalt or pitch that were utilized, though he approximated that the Hickman product was used on seventy-five percent of the pitch roof jobs, and the Trumbull asphalt was used on seventy- five percent of the asphalt roof jobs. He also estimated that Karnak roof cement was utilized on about seventy-five percent of the hot asphalt and pitch roof jobs collectively. Plaintiff did not recall any physical symptoms associated with his use of the Karnak roof cement.

Plaintiff also worked on rubber roofs fifty percent of the time and Firestone was the main manufacturer of those roofs. Installation of these roofs involved the use of a bonding adhesive, which was also manufactured by Firestone. Plaintiff estimated that he was exposed to this bonding adhesive at least a few hours during two days out of every six day work week. Whenever he would work near the bonding adhesive, he would go home with a headache, and, on occasion, his hands would shake.

Plaintiff was diagnosed with AML in October 2001 when he was thirty-four-years old. He underwent a successful bone marrow transplant in February 2002, and, at the time of his deposition, his leukemia was in remission.

Oral argument on defendants' motions was held on July 18, 2008. Counsel for Hickman took the lead, and recited the procedural history of the litigation at some length. Although reiterating that the motion sought dismissal for plaintiff's failure to comply with the April 15 order, and was not a motion for summary judgment, counsel noted that in order to prove a prima facie case, plaintiff had to demonstrate "[f]requency, regularity and proximity to the product" that allegedly caused his AML. He further argued, "No amount of discovery from any defendant over any amount of time is [going to] help [plaintiff] . . . meet that burden." Counsel concluded his argument by contending that "plaintiff[] cannot and will never be able to meet his burden on the manner of exposure . . . . If [plaintiff] could meet [his] burden under [James v. Bessamer Processing, Co.], and state a prima facie case, he most certainly would have. [He] can't . . . ." Counsel for Karnak followed and argued that plaintiff "can't give us a method of exposure[,] [a]nd that's why the complaint should be dismissed." Counsel for BFS argued that plaintiff could not establish "that causation element."

Plaintiff's counsel responded by noting that the defense arguments assumed something that "wasn't specifically . . . in the [April 15] order," that is that plaintiff had to "prepare and present . . . a prima facie case" by a certain date. Such an obligation "was nowhere in the case management order." Counsel argued that defendants' motion was limited solely to whether plaintiff "complied with the [c]ourt's case management order." He claimed he had. Counsel cited plaintiff's deposition testimony as proof of "methods of exposure" to defendants' products, "how the product was used, when the product was used, . . . where it was used." He noted that Stainken had supplied a supplemental report and that discovery was not yet completed under the case management order.

The judge initially reserved decision on the motion, subsequently placing her oral decision on the record on July 25. She noted that dismissal was warranted under Rule 4:23-2(b) if plaintiff's "failure to comply with the Court order was egregious, long standing, willful and/or deliberate . . . ." She further considered "[t]he [well-settled] law governing plaintiff['s] burden of going forward" on his products liability claim. She found, "Plaintiff . . . fails to describe, with any degree of certainty or even consistent approximation, that he was frequently, regularly or proximately exposed to any of the manufacturer defendant[s'] products."

The judge then cited portions of plaintiff's deposition testimony, pointing out inconsistencies between that and Stainken's report. She concluded that the expert's report "makes no clear correlation between plaintiff's infrequent close proximity to benzene contained in tar pitch and the average latency period of AML." Despite these numerous references to plaintiff's failure to adduce sufficient proof as to causation, the judge emphasized she was not applying "the standard for summary judgment."

Returning to the April 15 order, the judge noted that it was "designed to place the defendant[s] in a position where they could review a report and know what to respond to." She concluded, "plaintiff's theory of liability that was hinted at [six] years ago, is no closer to articulation [six] years, several experts, several [a]ttorneys and numerous motions later . . . ." The judge dismissed plaintiff's complaint with prejudice, and this appeal ensued.

II.

Plaintiff argues that dismissal was unwarranted because he did not violate the April 15 case management order, but rather complied fully with its terms; and, even if he did not comply, dismissal was not appropriate because the violation was not "egregious, long-standing, willful and deliberate." Lastly, plaintiff contends that the judge "impermissibly reviewed the merits" of his claims, making "factual and legal findings" that were inappropriate.

Defendants' responses vary. Hickman argues that the judge appropriately exercised her discretion in dismissing plaintiff's complaint because of "discovery violations"; it also argues that although its motion only sought dismissal under Rules 4:23-2(b) and 4:37-2(a), and did not seek summary judgment, "plaintiff['s] proofs failed . . . to state a prima facie case . . . . " Similarly, Karnak argues that the judge did not mistakenly exercise her discretion in dismissing the complaint because plaintiff "failed to comply with the April 15 . . . case management order," and failed "to satisfy [his] burden to establish a prima facie case." Owens-Corning and Trumbull echo these arguments. BFS, however, essentially confines its argument to plaintiff's alleged violation of the case management order, and the judge's appropriate exercise of her discretion to dismiss the complaint with prejudice as a sanction for that violation.

"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). Rule 4:23-2(b) provides a panoply of possible sanctions for a party's failure to abide by a discovery order, including the entry of "[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof with or without prejudice . . . ." R. 4:23-2(b)(3).

"'[D]ismissal with prejudice is the ultimate sanction.'" Abtrax, supra, 139 N.J. at 514 (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). Dismissal of a complaint with prejudice is only appropriate "in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious" and "when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party . . . . " Abtrax, supra, 139 N.J. at 514 (quotations omitted); see Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 11 (App. Div. 2007) ("[T]he sanction of dismissal with prejudice for a procedural violation must be a recourse of last resort." (citing Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003))); see also Pressler, Current N.J. Court Rules, comment 2 on R. 4:23-2 (2010) (observing "the court must be loathe to impose the ultimate sanction of dismissal" for violation of the Rule). "If a lesser sanction than dismissal suffices to erase the prejudice to the non-delinquent party, dismissal of the complaint is not appropriate and constitutes an abuse of discretion." Georgis v. Scarpa, 226 N.J. Super. 244, 251 (App. Div. 1988) (citations omitted).

Specifically, the April 15 case management order, which was submitted to the court by Hickman's counsel, required plaintiff to "identify [his] method of exposure" no later than May 2, 2008. It did not specify anything further in this regard.

Plaintiff's counsel sent a letter to all counsel dated April 29, in which he specifically noted that "pursuant to" the case management order, he was enclosing "the supplemental expert report" of Stainken outlining plaintiff's "methods of exposure." Counsel also stated that pursuant to the April 15 order, plaintiff was relying upon the depositions of plaintiff and other witnesses, the expert reports of Stainken and Kopstein, the MSDS furnished by defendants, and answers to interrogatories and document requests.

This response was somewhat unfocused because it was intended to meet all the discovery obligations contained in the April 15 order, not just the requirement that plaintiff "identify [his] method of exposure." If defendants believed plaintiff should have been required to respond in a more direct manner, they could have sought such relief; however, only BFS sought, as an alternative to dismissal, an order forcing plaintiff to comply more fully with the April 15 order.

We think it is obvious that plaintiff attempted to comply with the case management order by listing the discovery and the experts he intended to rely upon to prove his "method of exposure." Certainly, it cannot be fairly stated that plaintiff willfully refused to comply with the order, or responded in a contumacious or evasive manner. Thus, dismissal of the complaint with prejudice pursuant to Rule 4:23-2(b)(3) was inappropriate and a mistaken exercise of the judge's discretion.

It is, of course, a different question whether plaintiff's proofs sufficiently established a prima facie case of causation. It is well-settled that "in products-liability litigation, [a plaintiff] 'must demonstrate that his or her injuries were proximately caused by exposure to defendant's . . . product.'" Vassallo v. Am. Coding & Marking Ink Co., 345 N.J. Super. 207, 214 (App. Div. 2001) (quoting Coffman v. Keene Corp., 133 N.J., 581, 594 (1993)). Specifically, "[i]n workplace toxic exposure cases, [courts] have adopted the 'frequency, regularity and proximity' test . . . ." Vasallo, supra, 345 N.J. Super. at 215 (quoting Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 28-29 (App. Div. 1989)). "At least for summary judgment purposes, where there has been exposure to multiple products over an extended period of time, plaintiff has the burden of proving that h[is] exposure to [a] defendant's product was a 'substantial factor' causing or exacerbating the plaintiff's illness . . . ." Vassallo, supra, 345 N.J. Super. at 215 (quoting James, supra, 155 N.J. at 300-03). Although defendants argue that the judge properly dismissed the complaint for failure to comply with the case management order, all but BFS specifically argue, as they did below, that plaintiff failed to "carry his burden" as to causation. Defendants relied upon the very cases we have cited, and continue to rely upon them before us, to argue that plaintiff's response to the case management order's requirement to identify a "method of exposure" was inadequate.

Similarly, although the trial judge claimed she was not applying "the standard for summary judgment," she fully reviewed portions of plaintiff's deposition testimony, and his experts' reports, and concluded that plaintiff "fail[ed] to describe, with any degree of certainty or even consistent approximation, that he was frequently, regularly or proximately exposed to any of the manufacturer defendant[s'] products." In reaching her conclusion, the judge, too, cited to the cases we have referenced.

We note that all of the cited cases were decided in the context of whether the plaintiff's proofs could withstand the defendant's motion for summary judgment. We have no disagreement with the legal principles articulated in the cases. We only disagree as to their relevance to the issues presented in this case. Simply put, defendants never moved for summary judgment.

Although defendants contend that they should not have to bear the burdens of engaging in further extensive, costly discovery if plaintiff cannot prove causation, a remedy exists to avert that problem. Rule 4:46-1 specifically permits defendants to move for summary judgment "on all or any part" of plaintiff's claim. Defendants are free to move, as they see fit, for summary judgment based upon the alleged inadequacies of plaintiff's proofs on the issue of causation. We hasten to add that we express no opinion whatsoever on the issue.

Whether the matter is ripe for summary disposition, in light of the fact that when the complaint was dismissed, the case management order anticipated five more months of discovery, is another subject upon which we express no opinion. We commend to the trial judge's discretion all issues regarding outstanding additional discovery, and whether any of that anticipated discovery necessarily impacts the fair determination of whether plaintiff's proofs on the critical issue of causation are sufficient to deny summary judgment.

 
Reversed and remanded; we do not retain jurisdiction.

The order under review also dismissed the pleadings as to Garland Industries, Inc., apparently a third-party defendant. The appellate record provides no pleading in which that party is actually named.

Sandra M. Abel-Kelly's claim is limited to per quod damages as a result of the loss of her husband's consortium. The singular, "plaintiff," throughout the opinion refers to Richard G. Kelly.

Hickman's motion also cited Rule 4:37-2(a) as a basis for dismissal of the complaint.

155 N.J. 279 (1998).

Hickman also sought dismissal pursuant to Rule 4:37-2(a). While that rule permits dismissal of a complaint for failure to "comply with . . . any order of court," the dismissal is routinely without prejudice. In any event, the same analysis applies to consideration of the issue since "[t]he procedural dismissal of a cause . . . is not a favored remedy and lesser sanctions should be imposed whenever practical." Pressler, supra, comment 1 on R. 4:37-2.

(continued)

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January 15, 2010