James v. Chevron U.S.A., Inc.
| Decision Date | 27 May 1997 |
| Docket Number | No. A-2475-94T2,A-2475-94T2 |
| Parties | , Prod.Liab.Rep. (CCH) P 14,996 Ida JAMES, individually and as administratrix ad prosequendum and general administratrix of the Estate of Walter James, Plaintiff-Appellant/Cross-Respondent, v. CHEVRON U.S.A., INC.; Sun Company, Inc.; Ashland Chemical, Inc.; Mobil Oil Corporation; North American Paint Manufacturing Company; Pride Solvents & Chemical Co. of New Jersey, Inc.; CITGO Petroleum Corporation; Amoco Corporation; and Daicolor-Pope, Inc., Defendants-Respondents/Cross-Appellants, and Occidental Chemical Corp.; Texaco, Inc.; American Cyanamid Company; Shell Oil Company; Exxon Corporation; and Macarthur Petroleum & Solvent Company, Defendants-Respondents, and Bessemer Processing Co., Inc.; Linde Gases of the Midlantic, Inc.; Hooker Chemical Co.; Roman Heart; Baker Lite Co.; Mellen Chemicals, Inc.; Standard Oil; Texas Oil; and Pope Chemical, Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
Ronald M. Gutwirth, Orange, argued the cause for appellant/cross-respondent (Mr. Gutwirth, on the brief).
James C. Orr, Newark, argued the cause for respondents/cross-appellants Exxon Corp. U.S.A., Occidental Corp., Shell Oil Co., Mobil Oil Corp., Sun Co., Inc., Ashland Chemical Inc., Texaco Inc., and North American Paint Co. (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Carolyn F. O'Connor, of counsel; Susan Karlovich, on the brief).
Sally H. Atkins, Newark, argued the cause for respondent/cross-appellant Chevron U.S.A., Inc. (Slowinski & Atkins, L.L.P., attorneys; Matthew S. Slowinski, of counsel; Ms. Atkins, on the brief).
James J. Maron, Wilmington, DE, argued the cause for respondent/cross-appellant Amoco Corporation (McCarter & English, attorneys; Charles F. Rysavy, of counsel, Newark; Mr. Maron, on the brief).
Mark L. Czyz, Newark, argued the cause for respondent/cross-appellant CITGO Petroleum Corporation .
Dean Constantine, Livingston, argued the cause for respondent/cross-appellant Dailcolor-Pope, Inc. (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Liskowski, attorneys; Richard E. Arvidson, of counsel; Mr. Constantine, on the brief).
Richard M. Mandel, Union, argued the cause for respondent/cross-appellant Pride Solvents & Chemical Co. of New Jersey, Inc. (O'Brien, Liotta & Mandel, attorneys; Mr. Mandel, of counsel and on the brief with Marie Seitz).
Keith J. Miller, Newark, argued the cause for respondent American Cyanamid Co. (Robinson, Lapidus & Livelli, attorneys; Steven L. Lapidus and Mr. Miller, on the brief).
Charles M. McGivney, Florham Park, argued the cause for respondent Macarthur Petroleum & Solvent Company 1 (McGivney & Kluger, P.C., attorneys; Mr. McGivney, on the brief).
Before Judges HAVEY, KESTIN and EICHEN.
The opinion of the court was delivered by
HAVEY, P.J.A.D.
In this toxic-tort, failure-to-warn case, plaintiff appeals from summary judgment dismissing her survivorship and wrongful death complaint against defendants Shell Oil Company, Exxon Corporation, Amoco Corporation, CITGO Petroleum Corporation, Chevron U.S.A., Inc., Texaco, Inc., Sun Company, Inc. (Sunoco) and Mobil Oil Corporation (the Shell defendants). She also appeals from separate orders dismissing her complaint against various defendants on procedural grounds. On their cross-appeals, defendants Chevron, Texaco and the Pride defendants challenge separate orders entered in favor of plaintiff.
Plaintiff's husband, decedent Walter James (James) was exposed to benzene-containing petroleum products and other chemical substances during his twenty-six years of employment with Bessemer Processing Company, Inc. (Bessemer). He died of stomach and liver cancer in 1990. In her complaint, plaintiff claims that the Shell defendants sent numerous fifty-five-gallon drums to Bessemer for reconditioning. The drums contained residue of petroleum products manufactured by the Shell defendants. She asserts that defendants jointly and severally failed to warn of the dangerous propensities of the substances, and that James' cancer was caused by his exposure to the products.
In granting summary judgment to all defendants, the motion judge concluded that plaintiff had failed to establish that James' death by cancer was causally connected to a specific product manufactured by a specific defendant. We reverse the summary judgment order and remand for further proceedings.
We reverse separate orders dismissing plaintiff's complaint on procedural grounds in favor of defendants Daicolor-Pope, Inc., Macarthur Petroleum & Solvent Company, North American Paint Manufacturing Company, Texaco and Chevron. We remand for a hearing to determine whether Chevron and Texaco were prejudiced by plaintiff's untimely service of process upon them. We also reverse the order denying the Pride defendants' motion for summary judgment and remand for a hearing and findings as to whether plaintiff may utilize R. 4:26-4 to assert claims against these newly-identified defendants. We affirm: (1) the order dismissing the complaint against defendant American Cyanamid Company; (2) a protective order limiting the scope of discovery; and (3) the order denying plaintiff's application to amend her complaint to name additional "Amoco" defendants.
Considering plaintiff's evidentiary material submitted in opposition to summary judgment in a light most favorable to her, see Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540, 666 A.2d 146 (1995), these are the facts.
James worked for twenty-six years with Bessemer at its Newark facility, performing various jobs as a general laborer. Bessemer, a subsidiary of Kingsland Drum and Barrel (Kingsland), is engaged in the reconditioning of used and empty fifty-five-gallon drums for further use by the oil industry. "Closed head" and "open head" drums were sent to Kingsland by various producers of petroleum products. Approximately thirty percent of those drums were sent thereafter to Bessemer for processing. The "open head" drums, which had removable tops and which contained stickier and more viscous residues, were sent to Bessemer because Bessemer was best equipped to remove the residue by incineration and blasting.
The drum reconditioning process first involved emptying of residue from the drums. Although, pursuant to federal regulations, the "empty" drums sent by the oil producers were to have no more than one inch of residue, Bessemer employees stated in depositions that most drums contained as much as four to five gallons of waste material when received at the Bessemer plant. After the drums were "uncapped," the residue was dumped into a "slop hole" which collected beneath a conveyor. During the process, waste material spilled onto the clothing of the workers. Bessemer workers emptied the residue pit twice a month by use of shovels and buckets. James was often involved in the pit cleaning operation.
The uncapped drums were turned upside down and placed in a drag chain conveyor transporting them to a "tunnel incinerator" where the drums' residue was burned and charred by high temperature flames. According to James' co-employees, the fumes from this burning process were "strong and foul" and permeated the incinerator area. The drums were then blasted to remove all of the charred material. This process released dust and fumes into the air to which the Bessemer workers were exposed. After the reconditioning process was completed, the drums were transported back to the oil companies.
During his twenty-six years with Bessemer, James functioned as a "utility man" and "did some of everything that needed to be done," switching from position to position as the operation required. In October 1989, James was diagnosed as having stomach cancer. He died on February 8, 1990; the cause of death was "carcinoma with metastasis to the liver and peritoneum." He was fifty-two years of age at the time of his death.
Kingsland and Bessemer closed down in the early 1990's because of a lack of business. The early business records originating at Bessemer throughout James' employment were "production documents" which indicated the number of drums which had been reconditioned. These documents, however, did not indicate the name of the corporate customer which had provided the drums to Bessemer for reconditioning. All other records, kept at Kingsland, including bills of lading and billing invoices indicating the number of drums picked up from a particular customer, did not reflect the content of the empty drums. According to Kingsland officials, all records were destroyed after being kept for three years.
Additionally, Kingsland had kept material safety data sheets presented by its customers over the years which purportedly gave warnings of and safety instructions on the potential dangers concerning the residue in the empty drums. However, these safety data sheets did not begin arriving at Kingsland until the late 1980's, around the time that James was diagnosed with stomach cancer.
After Kingsland and Bessemer ceased operations, all of the existing records pertinent to this case were destroyed by Kingsland representatives.
Plaintiff first argues that the motion judge erred in granting summary judgment, since her "proofs met the required elements of a prima facie case against defendants Shell, Exxon, Amoco, CITGO, Chevron, Texaco, Sunoco and Mobil" (the Shell defendants).
The motion judge based his grant of summary judgment for all defendants on two grounds. First, he determined that "plaintiff's proofs fail[ed] to establish this essential element of a product liability...
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