SUSIE HARRIS v. ADVANCE PROCESS SUPPLY, CO.

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0584-07T30584-07T3

SUSIE HARRIS,

LAWRENCE MILES, SR.,

SARA AND BARBARA PEASE,

SYLVIA PIGFORD,

CHRISTINE R. COLLINS,

R. MANGELISO DAVIS,

THERESA FLORES,

THERESA HOKE SANCHEZ,

FANNY BERMUDEZ,

CARMEN ORTIZ,

ROY L. JONES and IVAN FOSTER,

Plaintiffs-Appellants,

v.

ADVANCE PROCESS SUPPLY, CO.,

6900 RIVER ROAD CORPORATION

c/o CSC UNITED STATE CORPORATION,

WATCO L.L.C., ALUMINUM SHAPES, L.L.C.,

SUPER TIRE SERVICES, INC.,

SHELBY WILLIAMS INDUSTRIES,

PLYWOOD PANEL, INC.,

Defendants,

and

ALPHA TOOL & MACHINE, CO.,

AMERICAN STANDARD, INC.,

A&H BLOOM CONSTRUCTION COMPANY,

THE BLOOM ORGANIZATION,

SL INDUSTRIES, INC.,

SL SURFACE TECHNOLOGIES, COOK

COMPOSITES AND POLYMERS CO.,

SL OSBORN CHEMICAL, CO.,

CJ OSBORN CHEMICAL CO.,

J.M.J. WAREHOUSE ASSOCIATES,

FISHER DEVELOPMENT, INC.,

BOISE-CASCADE CORPORATION,

WEYERHAEUSER COMPANY, INC.,

UNITED STEEL & WIRE CO.,

AMERADA HESS CORPORATION,

THE GLIDDEN COMPANY,

PENNSAUKEN SOLID WASTE MANAGEMENT AUTHORITY/

POLLUTION CONTROL FINANCING AUTHORITY OF

CAMDEN COUNTY, CITY OF CAMDEN

and JAMES D. MORRISEY, INC.,

Defendants-Respondents.

_________________________________________

 

Argued May 11, 2009 - Decided

Before Judges Reisner, Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3815-02.

Gerald J. Williams argued the cause for appellants (Williams Cuker Berezofsky, Merovitz, Cedar & Gruber, L.L.C. and Frost & Zeff, attorneys; Mr. Williams, Wendy E. Carr, Samuel Merovitz, David Cedar, Mark B. Frost and Gregg L. Zeff, of counsel and on the brief).

Marc D'Angiolillo and Deborah L. Shuff argued the cause for respondents United Steel & Wire Company, SL Industries, Inc., SL Surface Technologies, The Glidden Co., n/k/a Akzo Nobel Paints, L.L.C., American Standard Companies n/k/a Trane, Inc. Cook Composites and Polymers Co., CJ Osborn Chemical Co., Boise-Cascade; Weyerhaeuser Company, Fisher Development Corporation, and Hess Corporation f/k/a Amerada Hess Corp,. (Riker Danzig Scherer Hyland & Perretti, L.L.P., Saul Ewing, Drinker, Biddle & Reath, L.L.P., Archer & Griener, Wilentz, Goldman & Spitzer, Wolff & Samson and Chris McDonald (Shook Hardy & Bacon) of the Kansas and Missouri bars, admitted pro hac vice, Coughlin, Duffy, and Lowenstein Sandler, attorneys; Mr. D'Angiolillo, Andrea Lipuma, Christopher R. Gibson, James M. Graziano, Sean D. Moriarty, Robert Selvers, Diana L. Buongiorno, Mr. McDonald, Robert W. Muilenburg, Michael D. Lichtenstein, Kristina D. Pasko, Priya Masilamani, and Ms. Shuff, on the joint brief).

Evan H. Lechtman argued the cause for respondent City of Camden (Blank Rome, L.L.P., attorneys; Mr. Lechtman and Steven D. Weinstein on the brief).

Marks, O'Neill, O'Brien & Courtney, P.C., attorneys for respondent JMJ Warehouse Associates (Michael A. Kosar and Daniel A. Baylson, on the brief).

Latsha Davis Yohe & McKenna, P.C., attorneys for respondent Alpha Tool & Machine Co., join the briefs by other respondents.

Ballard, Spahr, Andrews & Ingersoll, L.L.P., attorneys for respondents A&H Bloom Construction Company and The Bloom Organization, join in the briefs by other respondents.

Brown & Connery, L.L.P. attorneys for respondent Pennsauken Solid Waste Management Authority/Pollution Financing Authority of Camden County, join in the brief of respondents J.M.J. Warehouse Associates and City of Camden.

Giansante & Cobb, L.L.C., attorneys for respondent James D. Morrissey, Inc. successor to Ward Sand and Materials Company, Inc., join in the briefs of all respondents.

PER CURIAM

Plaintiffs, current or former residents of Camden, New Jersey, appeal from two trial court orders, the first of which denied class certification on July 10, 2006, and the second of which granted summary judgment dismissing plaintiffs' complaint on statute of limitations grounds on August 15, 2007.

To summarize, plaintiffs as a class sought medical monitoring, and for a sub-class sought refunds of their water bills, based on pollution of their drinking water in Camden between the years 1974 and 1998. Due to the claimed water pollution, they asked the court to require the City of Camden and the other defendants to pay for medical monitoring for the "approximately 50,000 to 80,000 City residents" who used city water between 1974 and 1998. Plaintiffs claimed they first had notice of pollution in the Puchack Well Field (PWF), from which Camden drew a part of its water supply, through a November 2001 report issued by the Department of Health and Senior Services (DHSS). As a result, plaintiffs contended that under the discovery rule, their May 30, 2002 complaint was timely. Judge Kassel rejected that argument.

In an oral opinion placed on the record on January 26, 2007, the judge held that a two-year statute of limitations applied to the medical monitoring claim, N.J.S.A. 2A:14-2, and a six-year limitation period applied to the bill-refund claim. N.J.S.A. 2A:14-1. In oral opinions placed on the record on January 26 and February 26, 2007, he addressed plaintiffs' contention that, under the discovery rule, the statute of limitations should run from a date later than the last possible exposure to the polluted water in 1998.

Applying principles from Lopez v. Swyer, 62 N.J. 267 (1973), to the undisputed evidence concerning eleven of the twelve plaintiffs, the judge concluded that these plaintiffs' personal observations of their water, plus numerous newspaper articles, as well as bill inserts from the local water utility, put them on notice of the pollution and its potential health impacts years before the November 2001 report was issued. He also concluded that, at the latest, all of the eleven plaintiffs knew or were on constructive notice prior to May 30, 2000, a date two years before the lawsuit was filed. After holding a testimonial Lopez hearing with respect to the twelfth plaintiff, Ivan Foster, the judge also concluded that the complaint was not timely as to Foster either. See Lopez, supra, 62 N.J. at 275-76.

The judge further found that the proposed class was not cohesive with respect to the class members' various alleged medical problems and histories, that a medical class action would present almost insurmountable practical difficulties, and that it would be too difficult to manage the sub-class seeking bill refunds, due to proof issues as to their residency in Camden. And, with respect to the public entity defendants, he concluded that plaintiffs had not filed timely notices under the Tort Claims Act, N.J.S.A. 59:8-8.

On this appeal, we affirm the dismissal of the complaint, because we agree with Judge Kassel that the complaint is untimely and the discovery rule does not excuse the untimely filing in this case. In light of those conclusions, we do not address the trial court's additional rulings concerning class certification.

I

We will review in some detail the evidence concerning the timeliness issue, beginning with the document plaintiffs claim first put them on notice of their alleged injury.

The November 30 2001, Draft Public Health Assessment

In a Summary to the Draft Public Health Assessment of the PWF, the DHSS reported:

The Puchack Well Field (PWF) site was one of several primary water supply sources for the City of Camden, Camden County, New Jersey. The PWF site occupies an area of approximately 10 acres located in a commercial/residential area of Pennsauken Township, Camden County, New Jersey. Until 1998, the PWF was a part of a blended system serving approximately 50,000 of the 80,000 people in the City of Camden.

In the past, practices of handling and discharging hazardous substances by various nearby commercial and industrial facilities have resulted in contamination of the underlying Potomic-Raritan-Magothy (PRM) aquifer, which the Puchack Well Field utilized. Contamination of the well field was first reported in the 1970's when trichloroethylene (TCE), 1, 2-dicloroethane, tetrachloroethylene (PCE), mercury and hexavalent chromium were detected in well number 6. The contamination subsequently spread to the other five supply wells at the PWF.

Groundwater contamination resulted in the closure of . . . all six supply wells. Use of most wells ended in 1984. The last supply well to be taken out of service was well number 1 in May 1998. From 1984 to 1988, well number 1 was pumped intermittently at a rate of one million gallons per day to prevent the spread of contamination to nearby well fields. The pumped water from well number 1 was blended with water from other wells for distribution in the city's water supply or was discharged untreated to an infiltration basin.

In 1997, the New Jersey Department of Environmental Protection (NJDEP), in cooperation with the United States Geological Survey (USGS), initiated an investigation to obtain additional information on the extent of groundwater contamination related to PWF. Twenty-six monitoring wells were installed and sampled. Twenty-nine additional existing monitoring wells were also sampled. To date, these efforts have not pinpointed the source or sources of the contaminants that have been detected in the well field.

The site was proposed for listing to the National Priorities List (NPL) in September 1997, and was placed on the NPL on March 6, 1998. The United States Environmental Protection Agency (USEPA) has begun a Remedial Investigation/Feasibility Study (RI/FS) to determine the scope of contamination, identify sources, and design possible remedial alternatives.

The Public Health Assessment evaluates existing groundwater, well field, and drinking water distribution system data, human exposure pathways, and the potential public health issues related to the PWF site. Based on a review of these data, the PWF site is considered by the Agency for Toxic Substances and Disease Registry (ATSDR) and the New Jersey Department of Health and Senior Services (NJDHSS) to have represented a public health hazard because of past exposures. This determination is based on the presence of a completed exposure pathway in the past to PCE, TCE, mercury, and chromium to a potentially large population at levels in exceedance of health based comparison values.

Current conditions indicate that exposure to contaminants from the PWF site is no longer occurring since the exposure pathway through use of the PWF was interrupted by the closure of all production wells. For this reason, the ATSDR and the NJDHSS are categorizing the PWF site as no apparent public health hazard under present conditions. However, the groundwater contamination plume affecting the PWF site has not yet been fully delineated.

Plaintiffs did not rely exclusively on the November 2001 DHSS report to support their claims. They retained several experts, who provided reports concerning the extent and significance of the pollution in the PWF and the City's overall water supply, and made recommendations for extensive medical monitoring. Defendants obtained expert reports providing contrary opinions. It is not clear on this record why plaintiffs did not retain their experts earlier, based on information available to them years before the report was issued. Compare Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 150-51 (1988). We review that information below, beginning with information available to the plaintiffs through local newspaper articles.

Public Knowledge of Contaminated Water

A. Newspaper Articles

1. An August 8, 1985 article in the Philadelphia Inquirer entitled "Chromium Shuts Wells In Camden" reported:

A string of tiny brick pump houses sits in the shadow of the Betsy Ross Bridge, and on these summer days--when Camden's water demand is at its peak--the pumps whir away.

But three of the seven wells sit silent. During the last few years, they have been shut because of spreading chromium pollution in the [Puchack Run] well field.

In fact, in the last seven years, this area near the Delaware River--which serves as a water source for Camden and Pennsauken--has been plagued by one of the most troublesome groundwater pollution problems in New Jersey.

"The groundwater situation in this area is so complex that we really aren't sure what is happening . . . or where the pollution is coming from," said Robert Richards, a supervising water-resources engineer in the New Jersey Department of Environmental Protection.

2. A March 12, 1986 Philadelphia Daily News article entitled "N.J. Tainted-Water Study Cites 9 of 630 Suppliers," reported that "[n]ine companies, including the Camden Water Co., supplied water carrying an alarming level of contaminants, officials said."

3. A March 12, 1986 Courier Post article, entitled "Toxins Found In City Water," reported the presence in Camden's water of a "higher-than-anticipated concentration of [tetracholroethylene, a carcinogen and] an industrial degreasing agent." The article reported that while DEP officials said that research data indicated that the finding posed no immediate health hazard, "city water officials have been directed to monitor the system monthly and to install advanced treatment equipment by the end of the year."

4. A September 29, 1990 Courier Post article reported that Camden was the recipient of a $587,000 EPA grant "to test new technology for removing cancer-causing chromium from five municipal wells." The article noted that the wells were "located in Camden's Puchack Run well field, adjacent to the Betsy Ross Bridge in Pennsauken."

5. A June 18, 1991 Courier Post article reported that Camden had "agreed to monitor chromium contamination of its Puchack Run Well Field in Pennsauken as part of an agreement with the state [DEP]."

6. A June 20, 1991 Courier Post article reported that Camden expected to expend up to $375,000 to study contamination at the Puchack Well Field. The article noted that officials hoped that the study, "which involves drilling 10 bore holes deep into the ground, will pinpoint the source of the [chromium] contamination." Chromium, according to the article, could cause "cancer, kidney damage and skin disorders."

7. A June 6, 1993 Courier Post article, entitled "Problems Plague Camden's Water System," noted that

the city and the [DEP] are working out the terms of an administrative consent order to put Camden on a faster track toward constructing new treatment facilities and implementing water conservation plans by 1995.

The draft of the order, . . . noted that the city has not started building treatment facilities for chromium, a carcinogen, found in five wells at its Puchack facility in Pennsauken . . . .

8. A June 2, 1995 Courier Post article reported that officials in Camden, Pennsauken and Merchantville "reacted angrily" to a national study that stated residents of those towns were drinking contaminated water. According to the article, the officials in those towns stressed that "their water is safe and clean."

9. A February 4, 1997 Courier Post article noted that problems with Camden's water treatment system, including age, disrepair and tainted wells, "is so severe that Camden's government might be forced to buy water from outside utilities if this summer's weather is sweltering." The article further recounted that

[a]t Puchack, the wells are contaminated with chromium, a heavy metal that seeped into the groundwater from chrome plating plants that once operated nearby. A single well continues to operate at the Puchack plant, mainly to prevent the "plume" of contamination from migrating further into the surrounding groundwater supply. DEP officials have allowed the one well to be used because chromium in the water is diluted to allowable levels when it is mixed with the rest of the water in the system.

10. A March 9, 1997 Courier Post article, entitled "City Water Project To Be Long And Costly," reported, among other things, that "[t]he projected cost of overhauling the Puchack Run wellfield--now virtually shut down because the portion of the aquifer it draws from is contaminated with chromium from now-defunct industries nearby--is $17 million."

11. The Philadelphia Inquirer reported on August 17, 1998, that Camden residents, appearing at a City Council meeting, questioned the appropriateness of Camden's proposed privatization deal with U.S. Water and complained that the proposal was silent about improving water quality.

12. An October 5, 1998 Philadelphia Inquirer article reported that Camden's decision to privatize water and sewer operations could increase costs. The article noted that "Environmental Protection, which warned the city in late 1995 to fix the system, says the water contains higher than permissible levels of organic contaminants, though it says there is no immediate health hazard."

13. An October 19, 1999 Courier Post article noted that a U.S. Water "federally mandated report on drinking water quality" stated that "since the company took over [in February 1999], the water has always met state and federal standards." The report, according to the article, acknowledged that "some secondary substances that are not health hazards but may make water look or taste bad exceeded state and federal recommended limits."

Having reviewed information available in the news media, we next summarize information provided to plaintiffs from their local water utility.

B. Notices from United Water Camden L.L.C. (United Water)

According to the undisputed affidavit of Daniel Pfleiderer, United Water's Regional Operations Manager, beginning in 1999 the utility sent water quality reports to all of its customers. On December 20, 1998, Camden entered into a long-term agreement with Camden Water L.L.C. (now United Water) to operate Camden's water distribution and wastewater systems. In accordance with state and federal Safe Drinking Water Regulations, United Water issued water quality reports.

According to Pfleiderer's affidavit:

17. On October 19, 1999, United Water issued a Water Quality Report for 1998 to each and every customer receiving water from the City's distribution system.

18. The report, which was separately mailed to all residents receiving a water bill, specifically advised City residents that the sources of their drinking water had included the Puchack Run Water Treatment Plant, and that the Puchack Water Treatment Plant had recently been taken out of service due to "contamination." [footnote omitted] . . . .

19. The report further advised City residents that some of the data contained in the report showed that drinking water samples taken from the water distribution system "did not always meet state or federal standards." . . . .

20. Finally, the report specifically warned City residents that certain persons exposed to contaminants in their drinking water were at an increased risk of suffering adverse health effects, and directed them to contact their health care provider or the Safe Drinking Water Hotline:

Special Warning

Some people may be more vulnerable to contaminants in their drinking water than the general population. Immuno-compromised persons such as persons with cancer undergoing chemotherapy, persons having undergone organ transplants, people with HIV/AIDS or other immune system disorders. Some elderly, and infants can be particularly at risk from infections. These people should seek advice about their drinking water from their healthcare providers. . . .

21. For the next three (3) years, from 2000 to 2002, United Water issued a similar Water Quality Report for 1999, 2000 and 2001 to each and every customer receiving bills for the use of water from the City's distribution system. . . .

22. Like the 1998 report, each subsequent Water Quality Report issued by United Water identified the Puchack Water Treatment Plant as a source of drinking water for City residents and specifically advised that the Puchack plant had been taken out of service due to "contamination." . . . .

23. Further, like the 1998 report, each subsequent Water Quality Report contained the identical "Special Warning" which advised City residents that some persons exposed to contaminants in their drinking water were at an increased risk of suffering adverse health effects. . . .

Copies of United Water's 1998, 1999 and 2000 reports were provided with Pfleiderer's affidavit.

Next, we turn to the undisputed evidence concerning the plaintiffs, focusing on what they knew about their water supply and when they knew it.

The Plaintiffs

1. Pease: Pease lived in Camden since 1964. In the early 1970's she first noticed that the water had an unusual odor, intermittently. When the water ran dark, Pease would let it run for twenty minutes. She read the Courier Post just about every day since 1964 and recalled reading articles about contaminated water as far back as the 1980s.

2. Bermudez: A Camden resident since 1970, Bermudez first noticed that the water had a "chocolate" color and a bad odor in 1978. While she experienced stomach aches and nausea in the past, she did not associate these conditions with the water until her doctor advised her to buy bottled water "like three years ago." She began to suffer from itchy skin in 1995.

Bermudez installed a water filter on her kitchen sink in 1996 and began using bottled water in 1998, because it cost $25 to change the filter every three months. She read articles about Camden's bad water, in the Philadelphia Inquirer and in the Courier Post, approximately four years and two-to-three years, respectively, prior to her June 2003 deposition. Six or seven years before her deposition, Bermudez stated to the City Council at a "big meeting" that "[i]f they want to kill us, and it's a shame they represent . . . [her] and then they don't care about the whole mess we have with the water."

3. Flores: Flores lived in Camden since 1988 with the exception of a two-year residence in Cherry Hill between 1998 and 2000. More than two and less than ten years prior to her June 2003, deposition, Flores received a flyer from the North Camden Community Center warning people to let water run before they drink it and to boil it. Sometime between 1988 and 1997, when she lived at 544 York Street in Camden, Flores began to use rain water to water her flowers because she believed that tap water killed them. Flores stopped drinking tap water on January 6, 2000, when she was diagnosed with HIV. She sees a doctor every three months. Flores is a newspaper reader and watches the news on television.

4. Jones: A Camden resident between 1965 and 1980 and from 1983 to the present, and an "activist" since 1966, Jones ran for mayor of Camden in 1984. Jones raised questions and spoke at a public hearing on the proposed privatization of the Camden water system on August 11, 1998. At that hearing, a Camden resident and Councilman Ali Sloan El raised concerns about the quality of the water.

5. Davis: Davis lived in Camden since 1942. While living at 1134 Empire Avenue in Camden from 1975 until 1980 and later at 506 Benson Street in Camden from 1980 to 1985, Davis stopped drinking tap water. He began buying bottled water and boiled tap water for cooking while living at Empire Avenue. Later he used bottled water for drinking and cooking while living at 523 Pearl Street in Camden because the tap water was "black." Seven or eight years prior to Davis's March 2004, deposition, he discussed the quality of the tap water with his doctor who said that the water was "pretty much messed up."

Davis recalled that when defendant Jones ran for mayor in 1984, a "testing engineer" attended a community meeting and told the candidates that they needed to focus on the poor quality of Camden water.

6. Miles: Miles lived in Camden continuously since 1971. He was a daily newspaper reader and watcher of television news. He recalled "a big write up" about contaminated wells in the Courier Post around 1991. He also recalled community meetings at City Hall about the water supply.

7. Ortiz: A Camden resident since 1973, Ortiz knew that there was something wrong with the water from the very beginning "just because of the way . . . [her] wash looked." Besides looking dirty, Ortiz described the water as "smelly" and having a "strange taste." In or about 1979, Ortiz's brother told her not to drink the water because it was contaminated.

8. Harris: A Camden resident since 1964, Harris testified at her deposition that for ten years prior to her May 2003, deposition, the water had an odor and tasted "terrible." She switched to bottled water in 1999 or 2000 because of the taste and smell of the tap water. Harris reads the Courier Post on weekends and watches the morning and evening news on Channel 6.

9. Collins: A Camden resident since 1954, Collins, since she first moved to Camden and at least prior to 1975, had heard neighbors and co-workers complain that the water was polluted. People complained about the water's odor and the fact they could "see stuff moving in the water." Although she believed that the water was unsafe for drinking from the time she moved to Camden, she did not begin to buy bottled water until 1999. Her grandson presented her with a water filter for Christmas 1999 and warned her not to drink unfiltered water because it had "too many chemicals in it."

10. Pigford: A Camden resident since 1974, Pigford and her family, from 1974 to 1998, used twelve gallons of bottled water a month for drinking and cooking. Camden water was used for washing clothes and bathing. Beginning in 1974 the water would run brown three or four times a month and it would have to run "for about a good two hours before it cleared up."

Pigford testified at her deposition that she received a notification from the Camden County Municipal Utilities Authority about contaminated water along with her water bill. She bought the Courier Post every other day except Sundays and Saturdays since 1974.

11. Theresa Hoke Sanchez: Sanchez had been a Camden resident between 1964 and 1977, and had lived in Camden from 1981 to the present. She read about contaminated water conditions in the Courier Post within three years prior to her October 2003 deposition. After she had read an article about water contamination in the newspaper, Sanchez attended a meeting relating to water quality in approximately 2001.

Sanchez complained to Camden officials in the early 1980s and again in the early 1990s that the water was dirty and was staining the wash. She was told that "Red X," a cleaning compound, could be obtained at the community center.

More than five years prior to her deposition, Sanchez would borrow water for her children from her mother. Sanchez's mother had a water filter installed in the 1980s because "the water was dirty."

12. Foster: The trial court considered the timing and extent of Foster's knowledge of contaminated water in connection with evidence adduced at a Lopez hearing. Foster moved to Camden in 1989, after his release from prison. He moved to Glassboro in 1994, but returned to Camden in "'95 or '96" and lived there with his wife in the same house for the next several years. He admitted to being an avid reader and a community activist. However, he testified that he never noticed any problems with Camden tap water, never read any newspaper articles about problems with the water, and never saw any of the water bills that were delivered to the house. After considerable questioning on cross-examination, he admitted to participating in a protest in July 2000, concerning the poor quality of the city's water. Among other things, members of the protest group claimed that the water "brings death."

In an oral opinion placed on the record on July 31, 2007, Judge Kassel found that Foster knew about the problems with Camden's water prior to May 2000. He did not believe Foster's testimony to the contrary, concluding that Foster's credibility was "eviscerated in cross-examination."

II

On this appeal, plaintiffs raise the following points for our consideration:

POINT I: THE LAW DIVISION MISAPPLIED THE STATUTE OF LIMITATIONS AND DISCOVERY RULE IN GRANTING SUMMARY JUDGMENT ON ALL CLAIMS.

A. The Law Division Misapplied The Discovery Rule's Constructive Knowledge Prong.

B. The Law Division Misapplied The Discovery Rule's Actual Knowledge Prong.

C. The Law Division Erred By Failing To Apply The Doctrine Of Laches To Plaintiffs' Equitable Claims for a Medical Monitoring Program.

D. The Law Division Erred In Dismissing Plaintiffs' Claims Against The City.

POINT II: THE LAW DIVISION ERRED IN DENYING CLASS CERTIFICATION.

A. The Law Division Misapplied Rule 4:32-1(b)(2) To Plaintiffs' Medical Monitoring Claims.

B. The Law Division Misapplied Rule 4:32-1(b)(3) To Plaintiffs' Refund Damages Claims.

Our review of the trial judge's grant of summary judgment is de novo, employing the standard set forth in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). On the other hand, we must defer to the trial judge's factual findings based on a testimonial hearing, unless those findings are not supported by substantial credible evidence, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we owe particular deference to the trial judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 474 (1999). In either situation, we owe no deference to a trial judge's interpretation of the law. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Based on these legal principles, we find no error in the trial judge's legal determination that plaintiffs' medical monitoring and breach of contract claims are subject to the respective six-year and two-year statutes of limitations set forth in N.J.S.A. 2A:14-1 and N.J.S.A. 2A:14-2. We find no merit whatsoever in plaintiffs' argument that the medical monitoring claim is not subject to any statute of limitations, but rather is only subject to principles of "laches." At oral argument plaintiffs' counsel was unable to cite a single case adopting this novel theory, and we have found none. Ayers v. Jackson Township, 106 N.J. 557 (1987), cited in plaintiffs' brief, reaffirmed the applicability of the discovery rule to toxic tort lawsuits but did not hold that no limitations period applied. Id. at 583-84. See also Barnes v. Am. Tobacco Co., 161 F.3d 127, 150-51 (3rd Cir. 1998), cert. denied, 526 U.S. 1114, 119 S. Ct. 1760, 143 L. Ed. 2d 791 (1999).

This is not a case in which the exposure to alleged toxins is continuing into the present. At the latest, the exposure ended in 1998. Therefore, absent proof supporting equitable tolling under the discovery rule, the statute of limitations would, at the latest, begin to run from 1998. See Ayers, supra, 106 N.J. at 583. In that context, laches would be a consideration in judging plaintiffs' claim of equitable tolling. See Fox v. Passaic Gen. Hosp., 71 N.J. 122, 127-28 (1976); Lopez, supra, 62 N.J. at 274-76.

We next turn to the judge's decision on the tolling issue. "The 'discovery rule' is an equitable principle by which the accrual of a cause of action is delayed 'until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an actionable claim.'" Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 419 (1987)(citations omitted). The court must undertake an individualized consideration of the facts of the case in which plaintiff seeks to invoke the rule. Id. at 420-21.

Having reviewed the record, we find no basis on which to disturb the trial judge's determinations, set forth in his oral opinions of January 26, February 26, 2007 and July 31, 2007, explaining in detail as to each individual plaintiff, the reasons for rejecting each plaintiff's claim of equitable tolling under the discovery rule. Except as discussed below, plaintiffs' appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In Vispisiano, supra, 107 N.J. at 428-29, the Court recognized the difficulty plaintiffs may have in filing toxic tort claims in a timely manner, since toxic chemicals may not produce harmful effects until years after exposure. However, the Court also provided some guidance concerning the application of the discovery rule in such cases:

Given our requirement that before a toxic-tort-case plaintiff may be deemed, in a "discovery rule" context, to have the requisite state of knowledge that would trigger the running of the statute of limitations his impression of the nature of the injury and of its cause must have some reasonable medical support, we are convinced that defendants were not entitled to summary judgment. We hasten to add that we do not insist on medical confirmation as such: a physician's willingness to include chemical poisoning in the differential diagnosis would probably suffice, as would any other reasonably reliable source of information.

[Id. at 437.]

In this case, plaintiffs are not claiming to have suffered any actual medical injuries as a result of the allegedly polluted water. Rather, they seek medical monitoring in case they may develop any harmful medical conditions in the future as a result of ingesting Camden water years ago. We agree that this claim is time-barred, because, as Judge Kassel found, the pollution of Camden's water supply was widely reported for years before this lawsuit was filed. Plaintiffs believed there were toxic substances in the water and received water quality reports confirming the presence of chemicals in the water years before the DHSS report was issued in November 2001.

Most of the plaintiffs knew, or were on notice, of the problems with the city's water quality in ample time to file a medical monitoring lawsuit within two years after the statute began to run in 1998. At the latest, they were all on notice prior to May 30, 2000, a date two years before the filing of this lawsuit. Further, as counsel candidly conceded at oral argument, there is no evidence that any plaintiff was misled, or lulled into withholding legal action, by reassurances about the water supply appearing in the media or in the utility's bill inserts. See Lynch v. Rubacky, 85 N.J. 65, 75-76 (1981). To the contrary, based on what plaintiffs read and observed, they believed that the water was polluted and unhealthful, to the point that many of them would not drink it. In fact, Foster participated in a public demonstration at which protesters claimed that the water "caused death." See Lapka v. Porter Hayden Co., 162 N.J. 545, 555-57 (2000); In re Burbank Envtl. Litig., 42 F. Supp 2d 976, 981-82 (C.D. Cal. 1998).

In light of our decision on the statute of limitations issue, we also agree with Judge Kassel that plaintiffs' Tort Claim notices were untimely. See N.J.S.A. 59:8-8. We note that class certification in this case would present the same problems found to bar certification in Goasdone v. American Cyanamid Corp., 354 N.J. Super. 519 (Law Div. 2002). However, as we previously indicated, since the individual plaintiffs' claims are all time-barred, we need not decide the issue of class certification.

Affirmed.

 

Aluminum Shapes filed for bankruptcy. Appeal dismissed by order dated April 15, 2008.

The twelve plaintiffs are: Susie Harris; Lawrence Miles, Sr.; Sarah Ann Barbara Pease; Sylvia Pigford; Christine R. Collins; Fanny Bermudez; Theresa Flores; Theresa Hoke Sanchez; Carmen Ortiz; Ivan Foster; R. Mangaliso Davis, and Roy L. Jones. According to their third amended complaint, plaintiffs were all long-time residents of Camden and, except for Davis who was a lessee, all had owned their residences. Plaintiffs further alleged that water was supplied to all of them by Camden and/or its water department and that all paid periodic water bills issued by Camden.

The Final Release of the Public Health Assessment, dated June 12, 2002, noted that the draft "was released for public comment during the period from November 7, 2001, through January 9, 2002."

None of the plaintiffs claimed to have actually developed any medical condition as a result of drinking the water. Rather, they sought medical monitoring to address the increased risk of developing medical problems due to the water pollution. Plaintiffs' epidemiology expert recommended that all members of the proposed plaintiff class undergo an extensive list of tests of virtually every system of the body.

As Judge Kassel observed during the motion hearings, his decision in this case would not preclude a future suit by a plaintiff who actually develops medical problems caused by toxins in the water. See Ayers, supra, 106 N.J. at 583.

(continued)

(continued)

3

A-0584-07T3

June 25, 2009