STEPHEN BUYNIE, et al. v. AIRCO, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3193-05T13193-05T1

STEPHEN BUYNIE, PETER MARTORANA,

MELVIN BANAS, NICHOLAS LEWIS, JR.,

MIKE RAPAVI and JOE GENARDI,

Plaintiffs-Appellants,

vs.

AIRCO, INC.; AIR PRODUCTS AND

CHEMICALS, INC.; ALLSTATE

INSURANCE COMPANY; HONEYWELL

SSEC and as successor to

ALLIEDSIGNAL, INC.; THE

AMERICAN CHEMISTRY COUNCIL,

f/k/a THE CHEMICAL MANUFACTURERS

ASSOCIATION and the MANUFACTURING

CHEMISTS ASSOCIATION; B.F.

GOODRICH COMPANY; BORDEN CHEMICAL,

INC.; BRIDGESTONE/FIRESTONE, INC.,

individually and as successor in

interest to THE FIRESTONE TIRE &

RUBBER COMPANY and FIRESTONE PLASTICS

COMPANY, a division of THE FIRESTONE

TIRE & RUBBER COMPANY; CHEVRON

U.S.A., INC., as successor to

GULF OIL COMPANY; CONDEA VISTA

COMPANY; CONOCO, INC., individually

and as successor in interest

to the CONTINENTAL OIL COMPANY and

THOMPSON-APEX COMPANY and CONOCO

CHEMICALS; THE DOW CHEMICAL COMPANY,

in its own right and as successor

to UNION CARBIDE CORP.;

ETHYL CORPORATION, a corporation

organized and existing under and by

virtue of the laws of the State of

Virginia; GENCORP, individually

and as successor in interest to

GENERAL TIRE AND RUBBER COMPANY;

POLYONE CORPORATION, f/k/a THE GEON COMPANY;

GEORGIA GULF CORPORATION; THE GOODYEAR

TIRE AND RUBBER COMPANY; GULF OIL

CORPORATION; MONSANTO COMPANY; NEW

JERSEY MANUFACTURERS INSURANCE CO.;

OCCIDENTAL CHEMICAL CORPORATION, a

Corporation organized and existing under

and by virtue of the laws of the State of

New York, individually and as successor

in interest to OCCIDENTAL ELECTROCHEMICALS

CORPORATION, HOOKER CHEMICALS & PLASTICS

CORPORATION, HOOKER CHEMICAL CORPORATION,

DIAMOND SHAMROCK CHEMICALS COMPANY,

DIAMOND CHEMICALS COMPANY, DIAMOND

SHAMROCK CORPORATION, and DIAMOND

ALKALI COMPANY; OCCIDENTAL

ELECTROCHEMICALS CORPORATION;

OLIN CORPORATION; PANTASOTE, INC.;

PPG INDUSTRIES, INC.; RHONE-POULENC,

INC., individually and as

successor-in-interest to STAUFFER

CHEMICAL COMPANY; SHELL OIL COMPANY;

SHINTECH INC.; LIBERTY MUTUAL

CORPORATION; THE SOCIETY OF

THE PLASTICS INDUSTRY, INC.; TENNECO INC.;

PACTIV CORPORATION; EPEC POLYMERS, INC.,

as successor to TENNECO OIL COMPANY;

SENTRY INSURANCE COMPANY; UNION CARBIDE

CORPORATION; UNIROYAL, INC., individually

and as successor in interest to U.S.

RUBBER COMPANY; WHITTAKER CORPORATION,

as successor to GREAT AMERICAN

CHEMICAL CORPORATION; and ZENECA, INC.,

f/k/a ICI AMERICAS, INC., a corporation

organized and existing under and by

virtue of the laws of the State of

Delaware,

Defendants-Respondents.

 

 

Argued: April 25, 2007 - Decided August 10, 2007

Before Judges Cuff, Fuentes and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5502-03.

Mark R. Cuker argued the cause for appellants (Williams Cuker Berezofsky, attorneys; Mr. Cuker, of counsel and on the brief).

W. Ray Persons (King & Spalding) of the Georgia bar, admitted pro hac vice, argued the cause for all respondents (Lowenstein Sandler, and Mr. Persons, attorneys for respondents American Chemistry Council, The Dow Chemical Co., B.F. Goodrich Corp. f/k/a The B.F. Goodrich Co., PPG Industries, Inc., Shell Oil Co., Union Carbide Corp., Uniroyal, Inc. and Zeneca, Inc. f/k/a ICI Americas Inc., and Liaison Counsel for remaining respondents; David W. Field and Priya R. Masilamani, of counsel and on the joint brief).

Patton Boggs, attorneys for respondents Pharmacia Corporation f/k/a Monsanto Company, Shintech Incorporated and The Goodyear Tire & Rubber Company, and Liaison Counsel for remaining respondents (Christopher M. DiMuro, of counsel and on the joint brief).

Riker Danzig Scherer Hyland Perretti, attorneys for respondents Occidental Chemical Corporation, Bridgestone/Firestone, Inc. and Georgia Gulf Corporation (Kelly S. Crawford, on the letter joining in brief of Liaison Counsel).

Graham Curtin, attorneys for respondents Honeywell International, Inc. f/k/a Allied Signal, Inc. (Robert W. Mauriello, Jr., on the letter joining in brief of Liaison Counsel).

Connell Foley, attorneys for respondents Hexion Specialty Chemicals, Inc. f/k/a Borden Chemicals, Inc. (Timothy E. Corriston, on the letter joining in brief of Liaison Counsel).

McLaughlin & Cooper, attorneys for respondents Pactiv Corporation, Tenneco Automotive, Inc. and Epec Polymers, Inc. (Michael E. Downey, on the letter joining in brief of Liaison Counsel).

Morgan, Lewis & Bockius, attorneys for respondent Rhone-Poulenc Inc. (n/k/a Bayer CropScience, Inc.) as corporate successor by merger to Stauffer Chemical Company (Glen R. Stuart, on the letter joining in brief of Liaison Counsel).

PER CURIAM

Plaintiffs seek establishment of a fund for the creation of a medical monitoring program to detect occupational diseases, including a rare form of liver cancer, caused by exposure to vinyl chloride during their employment at Pantasote, Inc. in Passaic. Plaintiffs commenced suit against their former employer, Pantasote, a host of suppliers of vinyl chloride, and workers' compensation carriers. Plaintiffs contend that defendants knew of the danger posed by vinyl chloride to workers at the Pantasote facility and conspired to fraudulently conceal the risks of exposure. They appeal from an order denying their motion for class certification and transferring the matter to the Division of Workers' Compensation. We affirm the order denying class certification because the proposed class lacks the cohesiveness required for class certification. We reverse the order transferring the case to the Division of Workers' Compensation except the claim for medical monitoring from occupational exposure to vinyl chloride against their employer and remand for further proceedings.

Pantasote operated a facility in Passaic where it manufactured poly vinyl chloride (PVC) products, including PVC resins, vinyl film and sheeting, plasticized compounds and thermoformed products. It began using poly vinyl in various processes in 1956. Poly vinyl film and sheeting were sold for use in a wide variety of products, including household accessories, wall coverings, apparel, and watertight liners. Pantasote manufactured "panta-packs" or rigid packing trays and sold this packing material to fruit packers and other food distributors. Pantasote used vinyl chloride monomer (VCM) from 1956 to 1984, when the Pantasote facility was sold.

An April 1992 Environmental Protection Agency document describes the hazards of VCM. It is described as "a colorless gas with a mild sweet odor" and possessing an "odor threshold" of "3,000 ppm [parts per million]." Occupational exposure "may occur in those workers concerned with the production, use, transport, storage, and disposal of the chemical." It "can be detected in urine and body tissues, but the tests are not reliable indicators of total exposure."

Under the heading "Health Hazard Information," the document reported that the acute effects of high levels of vinyl chloride exposure to humans through inhalation include "dizziness, drowsiness, headaches, and giddiness." Exposure to extremely high levels "has caused loss of consciousness, lung and kidney irritation, and inhibition of blood clotting in humans and cardiac arrhythmias in animals." Listed among non-cancerous chronic effects in "[a] small percentage of individuals occupationally exposed to high levels of vinyl chloride in air" is the development of

a set of symptoms termed "vinyl chloride disease," which is characterized by Raynaud's phenomenon (fingers blanch and numbness and discomfort are experienced upon exposure to the cold), changes in the bones at the end of the fingers, joint and muscle pain, and scleroderma-like skin changes (thickening of the skin, decreased elasticity and slight edema).

As for cancer risks, "[i]nhaled vinyl chloride has been shown to increase the risk of a rare form of liver cancer (angiosarcoma of the liver) in humans." It has been classified by the Environmental Protection Agency (EPA) "as a Group A, human carcinogen."

According to a report submitted by Doctor Philip Cole, one of defendants' experts, "VCM first was recognized as a human carcinogen in early 1974 as a result of the report of cases of [angiosarcoma of the liver] among employees at a manufacturing facility in Louisville, Kentucky." The Occupational Safety and Health Administration (OSHA) regulations adopted in 1975 established a permissible exposure limit to vinyl chloride as one ppm averaged over an eight-hour period. An "action level" was set at "a 0.5 PPM concentration on a time weighted average 8 hour period." In 1975, OSHA "mandated physical examinations and liver function tests of current employees whose exposure to vinyl chloride exceeded 0.5 ppm, time-weighted average, for an eight-hour workday."

Prior to 1974, engineering and safety controls at the Pantasote Passaic facility included: a closed system for PVC polymerization in Plants 1 and 2; blast-proof walls around the reactor areas; a sprinkler or deluge system and ceiling and side-mounted exhaust fans. Ventilation systems and hooded exhausts were also installed in buildings where calendering, compounding and dicing operations took place. After reports surfaced in the mid-1960's linking vinyl chloride exposure to AOL, Pantasote installed a hydraulic reactor washing system in Plant 2. As early as 1964, Pantasote made an effort to restrict access to the reactor areas and tank farms to essential personnel.

On October 17, 1974, a representative from the National Institute of Occupational Safety and Health (NIOSH) visited the Passaic facility. The visit report stated that Pantasote had an active health, safety and sampling program and was interested in cooperating with a NIOSH survey program. Someone from Pantasote expressed a concern that vinyl chloride levels may be higher than the norm.

An August 1975 NIOSH report stated that "the potential for exposure to vinyl chloride is considerably higher at [Pantasote] than for the other poly vinyl chloride [facilities]." This situation seemed to be related to the proximity of a resin plant.

By the mid-1970s, medical surveillance, including hand x-rays, physicals and blood work, were conducted on Plant 1 and Plant 2 employees. Respirators were available. At this time, Pantasote also instituted industrial and engineering processes to reduce VCM exposures and installed an automatic monitoring system. Signs warning of VCM dangers were posted and bags containing resin were marked with warnings.

On June 23, 2003, plaintiffs Stephen Buynie, Peter Martorana, Melvin Banas, Nicholas Lewis, Jr., Mike Rapavi and Joe Genardi filed a third amended complaint in which they alleged that they were the victims of a conspiracy by their employer, various suppliers and manufacturers of vinyl chloride, trade associations and the vinyl chloride industry, as well as Pantasote's former workers' compensation carriers, to downplay the dangers of vinyl chloride. They sought to certify a class of all Pantasote workers, except full-time office workers, who worked at the Passaic facility for at least one year from 1960 to 1974.

Plaintiffs moved for class certification; the group of defendants referred to as the chemical defendants moved to transfer the complaint to the Division of Workers' Compensation. In an opinion dated January 27, 2006, the motion judge denied class certification and granted the motion to transfer the matter to the Division of Workers' Compensation for adjudication of the claims of the six named plaintiffs for medical monitoring arising from their alleged exposure to vinyl chloride during employment.

In his opinion, the judge found that the four prerequisites for class certification contained in Rule 4:32-1(a), i.e., (1) numerosity, (2) common questions of law and fact, (3) typicality of claims and defenses, and (4) adequacy of representation, were met. The judge held, however, that class certification was not warranted under Rule 4:32-1(b)(2) (hereafter referred to as (b)(2)), or under Rule 4:32-1(b)(3) (hereafter referred to as (b)(3)). He noted that the essence of a (b)(2) class was cohesiveness, which requires homogeneity of the class members' claims in order to maintain class manageability. He also held that a cohesiveness analysis is more rigorous than the initial commonality inquiry. The judge then found that the proposed class was not cohesive because the required relief of medical monitoring requires an examination of each class member's exposure history. Moreover, the passage of time between commencement and cessation of exposure raised a question about the risk of any disease process becoming manifest. Finally, the defendants are discrete entities accused of discrete misconduct with disparate claims to justify relief.

The judge also held that the class was not amenable to certification under (b)(3). He cited an overwhelming number of individual issues, legal claims and defenses.

I

Here, the judge found, and defendants concede, that the proposed class satisfies the first tier of requirements for certification of a class action: numerosity, commonality, typicality, and adequacy of representation. R. 4:32-1(a). The issue in this appeal is whether plaintiffs satisfied the requirements of Rule 4:32-1(b)(2). They do not challenge the denial of class certification for medical monitoring pursuant to Rule 4:32-1(b)(3); they do contend, however, that they satisfied the criteria for certification of their punitive damage claim pursuant to Rule 4:32-1(b)(3).

On appeal, plaintiffs claim that the judge applied improper standards in his ruling. They also assert that the judge decided disputed issues of fact, including accepting and rejecting expert opinions proffered by the opposing parties.

"The class action is an 'exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103 (2007) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545, 2558, 61 L. Ed. 2d 176, 193 (1979). Rule 4:32-1 governs class actions in this State. Although the class action device is considered an exception to the manner in which litigation is prosecuted, the rule is liberally construed. Ibid. Such an approach furthers the purpose of a class action and reflects its equitable origin as a means to adjudicate claims where the number of those interested is go great. Ibid.

Rule 4:32-1(b)(2) provides:

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of paragraph (a) are satisfied, and in addition:

. . . .

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; . . . .

The plaintiff bears the burden of establishing class status. Iliadis, supra, 191 N.J. at 106. A court asked to certify a class must undertake a "rigorous analysis" to determine if the party seeking class certification meets the requirements of the rule. Id. at 106-07 (citing Carroll v. Cellco P'ship, 313 N.J. Super. 488, 494-95 (App. Div. 1998)); Goasdone v. Am. Cyanamid Corp., 354 N.J. Super. 519, 527 (Law Div. 2002). In Iliadis, Justice Zazzali explained:

That scrutiny requires courts to look "beyond the pleadings [to] . . . understand the claims, defenses, relevant facts, and applicable substantive law." [Carroll, supra, 313 N.J. Super. at 495.] Although class certification does not occasion an examination of the dispute's merits, Olive v. Graceland Sales Corp., 61 N.J. 182, 189 (1972); see also Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (noting "unremarkable proposition that the strength of a plaintiff's claim should not affect the certification decision"), a cursory review of the pleadings is nonetheless insufficient.

[Iliadis, supra, 191 N.J. at 107.]

In other words, a court considering a request for class certification must pierce the pleadings. Ibid.

A party who invokes Rule 4:32-1(b)(2) for class certification must be seeking declaratory or injunctive relief and the defendant(s) must have acted or refused to act on grounds generally applicable to the class. This latter requirement is generally referred to as the need for cohesiveness. Amchem. Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117 S. Ct. 2231, 2250, 138 L. Ed. 2d 689, 713 (1997); Barnes v. Am. Tobacco Co., 161 F.3d 127, 142-43 (3d Cir. 1998); Goasdone, supra, 354 N.J. Super. at 531. Thus, we examine whether the remedy sought is in the nature of injunctive relief and then whether the proposed class is cohesive enough to allow class certification.

In their complaint, plaintiffs seek a court-administered fund to implement a medical monitoring regime to screen plaintiffs and other Pantasote employees for illnesses and conditions associated with vinyl chloride exposure. Other courts that have examined the amenability of class action certification for claims that seek medical monitoring or surveillance distinguish between a monetary award to defray the costs of periodic medical examinations and an order establishing a court-administered fund to defray these expenses. Barnes, supra, 161 F. 3d at 138-39; Goasdone, supra, 354 N.J. Super. at 532-33. The former is considered an award of compensatory damages; the latter an award of injunctive relief. Only the latter is amenable to class certification pursuant to Rule 4:32-1(b)(2).

Here, as in Goasdone, plaintiffs seek a court supervised medical monitoring program for all members of the class to screen for certain conditions and disease processes associated with exposure to vinyl chloride. This is the only relief they seek. It is not ancillary to a request for compensatory damages. Accordingly, the remedy sought is in the nature of injunctive relief and meets the requirements for certification of a class pursuant to (b)(2). Ayers v. Twp. of Jackson, 106 N.J. 557, 608-09 (1987); Goasdone, supra, 354 N.J. Super. at 533.

Certification pursuant to Rule 4:32-1(b)(2) also requires that the class be cohesive. In fact, the need for cohesiveness is enhanced for a (b)(2) because individual class members have no ability to opt out of the class. Barnes, supra, 161 F.3d at 142-43.

Amchem and Barnes provide guidance on the cohesiveness criteria for certification of a class. In Amchem, the Supreme Court addressed class certification of a Fed. R. Civ. P. 23(b)(3) class in the context of review of an order decertifying a settlement class exposed to asbestos. Amchem, supra, 521 U.S. at 597, 117 S. Ct. at 2237, 138 L. Ed. 2d at 697. The class included potentially hundreds of thousands, if not millions of people and their families, who had been exposed to asbestos products manufactured by defendants and who had not been parties to any prior litigation. The Court emphasized that predominance and superiority are the paramount criteria in consideration of a proposed (b)(3) class and that cohesiveness is a prominent feature of the predominance criterion. Id. at 615-16, 117 S. Ct. at 2246, 138 L. Ed. 2d at 708. The Court then remarked that cohesiveness cannot be obtained when there are a greater number of questions peculiar to individual class members and those disparate questions, such as individual medical history, may be of legal significance. Id. at 624, 117 S. Ct. at 2250, 138 L. Ed. 2d at 713.

The Court proceeded to identify the factors that undermined class cohesion in that case. Those factors included exposure to different asbestos-containing products, exposure for different amounts of time and in different ways and over different periods of time. Ibid. Other factors cited by the Court included the highly disparate consequences of exposure ranging from no injury to asymptomatic conditions to disabling and life-threatening disease processes. Finally, the Court identified the different history of cigarette use of each class member as a significant issue due to its impact on causation of any asbestos-related disease, and the different medical expenses incurred based on individual medical history and need for treatment. Ibid.

Soon thereafter, in Barnes, the Court of Appeals for the Third Circuit considered whether a medical monitoring class should be certified under Fed. R. Civ. P. 23(b)(2). Barnes, supra, 161 F.3d at 130. The proposed class consisted of cigarette smokers who filed suit against various tobacco companies. Id. at 130-31. The court held that the District Court properly decertified a class because the proposed class lacked the requisite cohesion required by the rule. Id. at 143. It also recognized that the discussion of cohesiveness in Amchem was equally, if not more, applicable to consideration of a (b)(2) class. Id. at 142-43.

Ultimately, the court concluded "that addiction, causation, the defenses of comparative and contributory negligence, the need for medical monitoring and the statute of limitations present too many individual issues to permit certification." Id. at 143. In reaching this conclusion, the court emphasized that state law required that each class member must prove that the monitoring program is different than that normally recommended in the absence of exposure and to do that requires consideration of many facts and circumstances unique to each person. Id. at 146.

Following Amchem and Barnes, Judge Chambers declined to certify a class of tobacco users who sought creation of court administered fund for a medical monitoring program to screen for bladder cancer. Goasdone, supra, 354 N.J. Super. at 533. Judge Chambers found that the requisite cohesiveness could not be met because "[r]esolution of this case will require the fact finder to resolve a number of individual issues concerning the significance and extent of exposure by each class member to defendants' products, and whether medical monitoring is reasonable and necessary for each class member based on the class member's unique medical history . . . ." Id. at 537.

Defendants urge that the facts of this appeal are markedly similar to the asbestos exposed plaintiffs in Amchem and the tobacco users in Barnes and Goasdone and this similarity requires affirmance. In certain significant respects, however, the tobacco user plaintiffs in Barnes and Goasdone are different from the occupationally exposed plaintiffs in Amchem and in this case. The foremost difference is that the initial use of tobacco is a voluntary act. The next significant difference is that continued use of the product normally leads to addiction. By contrast, occupational exposure to toxic substances cannot fairly be considered a voluntary act. Nevertheless, as in Amchem, the exposure history and the personal habits that bear on causation vary so markedly within the class that the proposed class lacks the requisite cohesion to allow the matter to proceed as a class.

The absence of the requisite cohesion is manifest when we examine the nature of the remedy sought by plaintiffs. This State has long recognized a claim for medical surveillance expenses based on an enhanced risk of harm due to exposure to toxic substances. Ayers, supra, 106 N.J. at 603-04, 606. The essence of the claim is to "recover the cost of periodic medical examinations intended to monitor plaintiffs' health and facilitate early diagnosis and treatment of disease." Id. at 599. In recognizing this claim, the Court remarked that such a claim was entirely consistent with the public interest. Id. at 604.

Whether medical intervention in the form of a medical surveillance program is reasonable depends on several factors, including the likelihood of disease, the significance and extent of exposure to a toxic substance, the toxicity of the substance, the seriousness of the diseases associated with exposure to the substances, and the value of early diagnosis. Id. at 606. In short, medical monitoring is appropriate

where the proofs demonstrate through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.

[Ibid.]

Later, in Theer v. Philip Carey Co., 133 N.J. 610, 627 (1993), the Court noted that the costs of medical surveillance is designed to address "the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals." A plaintiff must show that the exposure caused "a distinctive increased risk of future injury" and requires a course of medical surveillance independent of the ordinary regimen of protective screens and tests. Ibid. To be sure, medical monitoring programs can be devised when multiple people are exposed to similar toxic substances. Ayers illustrates that an effective program can be devised. Notably, however, in Ayers, the plaintiffs assembled the requisite evidence to meet their burden of proof. Ayers, supra, 106 N.J. at 606-07. Here, even after extensive discovery, plaintiffs have not been able to demonstrate that the relief they seek can be fashioned to meet the needs of the purported class.

In support of class certification, plaintiffs rely on the report of Dr. James Melius, who opined that the proposed class had been exposed to significant concentrations of vinyl chloride, that vinyl chloride is a known potent carcinogen, and that a medical monitoring program "directed at the health consequences of exposure to vinyl chloride monomer" is in order. Melius described the program as follows:

The standard requires that each worker be provided with a general medical examination focusing on signs and symptoms of adverse health effects caused by vinyl chloride and specific laboratory tests to evaluate liver abnormalities . . . . These medical requirements do not differentiate the required medical surveillance based on individual medical history although that information can inform the interpretation of the test results and subsequent follow-up.

At his deposition, Dr. Melius testified that he had not been asked to devise a medical monitoring program for this class of Pantasote workers. He acknowledged that a program would likely resemble in some respects an ordinary annual physical exam. He also acknowledged that there was no known screening test for early detection of brain cancer. He would include liver function studies to screen for angiosarcoma of the liver but acknowledged that liver function studies are not unique to this condition or to exposure to vinyl chloride.

Dr. Michael Hodgson opined that a medical monitoring program should include "disease detection strategies," and "elements to address viral disease prevention, obesity and weight reduction, and alcohol use." At his deposition, he stated that the medical monitoring program would include an occupational medical history, a physical examination, blood tests and urinalysis and liver injury tests. He also acknowledged that vinyl chloride disease occurs only during active exposure and that he would not expect to discover any cases of occupational acroosteolysis at this time. As to this issue, he agrees with defendants' expert, Dr. James Seebold, who testified that vinyl chloride disease is an acute reaction to vinyl chloride exposure and remits on cessation of exposure. He also acknowledged that the mortality rate for brain cancer is very high; therefore, early detection is not likely to alter the outcome. Furthermore, there is no way to screen for a soft-tissue sarcoma, such as angiosarcoma, except through general questions about weight loss.

Plaintiffs contend that this inquiry into the effectiveness of a medical monitoring program goes beyond the required rigorous analysis. Several recent cases, however, have considered the lack of effective medical monitoring programs as impediments to class certification.

In In re: Prempro Products Liability Litigation, 230 F.R.D. 555, 556-58 (E.D. Ark. 2005), plaintiffs, consumers of estrogen drugs, sought (b)(2) certification for a medical monitoring class comprised of breast cancer and dementia subclasses in their suit against a pharmaceutical manufacturer. In denying the motion, the judge commented at length about the proposed medical monitoring plan. He emphasized that the program differed only slightly from normal recommended examinations and that certain conditions that created an enhanced risk of harm subsided on discontinuation of use of the product. Id. at 571.

Similarly, the court in In re: Baycol Products Litigation, 218 F.R.D. 197, 212 (D. Minn. 2003), in denying a class certification motion noted the absence of a defined protocol of medical monitoring for users of the subject drug. Finally, in Wyeth, Inc. v. Gottlieb, 930 So. 2d 635 (Fla. Dist. Ct. App. 2006), review denied, 950 So. 2d 413 (Fla. 2007), the court stated that "neither the FDA, nor any other medical organization, has recommended or developed a medical monitoring program for current or former Prempro users." Id. at 642. Thus, the court reversed an order certifying a class of Prempro users. Id. at 643.

Plaintiffs also seek medical monitoring due to the enhanced risk of liver damage associated with vinyl chloride exposure. The record demonstrates, however, that this risk is not confined solely to plaintiffs' occupational exposure and that personal habits, such as alcohol use, and personal medical history, such as a history of hepatitis, enhance the risk of liver damage. These facts raise not only individual causation issues, but also demonstrate that a separate screening program to detect liver injury is not required.

II

Plaintiffs, citing Strawn v. Canuso, 140 N.J. 43 (1995), contend that the judge erred by not certifying a (b)(3) punitive damages class. We disagree.

The Baycol court specifically determined that "individual issues of fact and law predominate with respect to punitive damages:"

To succeed on a punitive damages claim, a plaintiff must prove that the defendant's conduct toward him/her rises to the level required by law. . . . [A] determination of punitive damages is based on individual issues.
 
The Supreme Court's decision in State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 155 L. Ed. 2d 585, 123 S. Ct. 1513 (2003) further illustrates this point. First, the Court reiterated that the reasonableness of a punitive damages award must be based, in part, on the "disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award". Id. at 1520. Another factor relevant to the reasonableness of a punitive damages award is "the degree of reprehensibility of the defendant's misconduct." Id. With respect to this factor, the Court held that a punitive damages verdict cannot be based on conduct that bore no relation to the plaintiff's harm. Id. at 1523. "A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties' hypothetical claims against a defendant under the guise of the reprehensibility analysis. . . .". Id.

 
[Baycol, supra, 218 F.R.D. at 215.]

In Strawn, the Court did not certify a punitive damages class and commented that "[t]he trial court may have to consider whether class members, as a condition to pursuing the matter as a class action, should agree on a method for allocation of compensatory and punitive damages, although it will be difficult to ground punitive damages on an unintentional failure to disclose information." Strawn, supra, 140 N.J. at 68. Accordingly, the motion judge did not abuse his discretion to deny class certification for the punitive damage claim.

III

Finally, plaintiffs contend that the court erred in transferring their medical monitoring claim to the Division of Workers' Compensation (Division). They protest that this transfer cut off their statutory rights under the Workers' Compensation Act to pursue third-party claims.

In his ruling on defendants' cross-motion to transfer the case to the Division, the judge observed that Buynie had filed a claim "alleging pulmonary and internal injuries resulting from occupational exposure" at Pantasote and that other plaintiffs had also filed claims "for other miscellaneous injuries suffered during the course of their respective employments." The judge held that the Compensation Act recognizes occupational "exposure--illnesses" as compensable and medical monitoring as a remedy. The judge ruled that the Division is the preferred forum for dealing with medical monitoring because it was "granted exclusive original jurisdiction for any claim for compensation as a result of an injury, occupational disease or exposure . . . [arising] out of and during the course of . . . employment" and was "the exclusive and superior mechanism for the resolution and provision of the [medical monitoring] remedy . . . sought . . . by the . . . individual plaintiffs."

The judge acknowledged that plaintiffs also asserted a products liability claim against third parties but found that claim did not bar transfer because the Division had the authority to require medical monitoring. He also observed that while plaintiffs might face statute of limitations issues before the Division, such would not bar a transfer of this case, because plaintiffs were susceptible to the same defense in court proceedings.

Other than their "claim" for punitive damages, plaintiffs only sought medical monitoring to be funded by defendants including, among others, Pantasote, their former employer, and defendants which allegedly supplied VCM to Pantasote. Plaintiffs espouse no other claim.

The fact that plaintiffs asserted a claim against their former employer does not require transfer. Under certain circumstances an employee may maintain a common law action against his or her employer. As the Supreme Court recently noted in Charles Beseler Company v. O'Gorman & Young, Inc., 188 N.J. 542, 546-47 (2006):

We have described the workers' compensation system "as an historic 'trade-off' whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries." Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605 (2002) (citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)); see also N.J.S.A. 34:15-7 to -8. That system, however, is not without exception. When a worker's injuries have been caused by an employer's "intentional wrong," that "intentional wrong" voids the "trade-off" and the employee may seek both workers' compensation benefits and common-law remedies. N.J.S.A. 34:15-8.

The test for "intentional wrong" has evolved. In Millison, supra, we defined "intentional wrong" as an action, committed with deliberate intent, that had a "substantial certainty" of causing injury. 101 N.J. at 178-79. In Laidlow, supra, we clarified that an "intentional wrong" included "actions taken with a subjective desire to harm" as well as "instances where an employer knows that the consequences of those acts are substantially certain to result in such harm." 170 N.J. at 613 (citing W. Prosser and W. Keeton, The Law of Torts 80 at 569 (5th ed. 1984)).

In Millison, the Supreme Court considered whether N.J.S.A. 34:15-8 "precludes employees who have suffered occupational disease from maintaining a separate tort action against their employer and against company physicians" based on charges that "the employer and physicians . . . intentionally expos[ed] the employees to asbestos in the workplace, deliberately conceal[ed] from employees the risks of exposure to asbestos, and fraudulently conceal[ed] specific medical information obtained during employee physical examinations that reveal[ed] diseases already contracted by workmen." Millison, supra, 101 N.J. at 165.

The Supreme Court held:

These allegations go well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease. There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen victim to those risks of the workplace. An employer's fraudulent concealment of diseases already developed is not one of the risks an employee should have to assume. Such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act. But for defendants' corporate strategy of concealing diseases discovered in company physical examinations, plaintiffs would have minimized the dangers to their health. Instead, plaintiffs were deceived -- or so they charge -- by corporate doctors who held themselves out as acting in plaintiffs' best interests. The legislature, in passing the Compensation Act, could not have intended to insulate such conduct from tort liability. We therefore conclude that plaintiffs' allegations that defendants fraudulently concealed knowledge of already-contracted diseases are sufficient to state a cause of action for aggravation of plaintiffs' illnesses, as distinct from any claim for the existence of the initial disease, which is cognizable only under the Compensation Act.
 
[Id. at 182.]

 

Moreover, an injured employee may maintain an action against a third person. Thus, N.J.S.A. 34:15-40 provides in part:

Where a third person is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein.

"The employee . . . is guaranteed recovery for his common-law damages against contributing third-party tortfeasors or for his compensation award, whichever is greater, but he may not duplicate these recoveries." Schweizer v. Elox Div. of Colt Indus., 70 N.J. 280, 287 (1976).

To the extent that plaintiffs' claims against Pantasote fall within the exclusive jurisdiction of the Division, the court did not err in the transfer. While Pantasote is no longer in business, its compensation carriers, in all probability, remain viable entities. On the other hand, plaintiffs charged Pantasote with intentional acts including: 1) the willful and deliberate exposure of employees "to the extreme dangers of vinyl chloride" while knowing that such exposure "was substantially certain to result in injury to its workers;" 2) the deliberate and systematic deception of its workers "into believing that working conditions were reasonably safe and that the levels of vinyl chloride to which they were not [sic] exposed [were] likely to cause injury," and 3) participation in a wide-spread "cover-up" conspiracy.

To the extent plaintiffs have viable common law claims against Pantasote, those claims should be determined by the trial court in the first instance and those claims should not have been transferred to the Division. Furthermore, to the extent that plaintiffs have third-party claims against supplier-defendants, the court erred in transferring those to the Division. The court has jurisdiction over these two categories of claims.

Affirmed in part; reversed and remanded in part.

 

This is known as acro-osteolysis (AOL).

(continued)

(continued)

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A-3193-05T1

August 10, 2007