People v. Warner-Lambert Co.
| Citation | 417 N.Y.S.2d 997,69 A.D.2d 265 |
| Decision Date | 09 July 1979 |
| Docket Number | WARNER-LAMBERT |
| Parties | The PEOPLE, etc., Appellant, v.COMPANY, doing business under the name and style of Warner-Lambert Co., American Chicle Division et al., Respondents. |
| Court | New York Supreme Court Appellate Division |
Mudge, Rose, Guthrie & Alexander, New York City (John P. Hederman, Leonard Garment, William P. Laino and William J. Brennan, New York City, of counsel), and Schulte & McGoldrick, New York City (Robert Kasanof, New York City, of counsel), for respondent Warner-Lambert Company (one brief).
Andrew M. Lawler, Jr., New York City (Dennis E. Milton, New York City, of counsel), for respondents O'Mahoney and O'Rourke.
Arkin & Arisohn, P. C., New York City (Stanley S. Arkin, Mark S. Arisohn and Arthur T. Cambouris, New York City, of counsel), for respondents Kraft and Harris.
Before SUOZZI, J. P., and O'CONNOR, LAZER, GULOTTA and SHAPIRO, JJ.
This is an appeal by the People (1) from an order of the Supreme Court, Queens County, dated February 15, 1978, which granted the defendants' omnibus motion, Inter alia, to inspect the Grand Jury minutes and, upon inspection, dismissed the indictment against them, and (2) from so much of a further order of the same court, dated July 26, 1978, as upon reargument, adhered to its original determination.
The question presented on this appeal is whether the evidence before the Grand Jury was legally sufficient to warrant the indictment of each of the defendants on six counts of manslaughter in the second degree Criminal Term held that the evidence was not sufficient and dismissed the indictment. Because we conclude that the evidence is sufficient, we reverse and direct that the indictment be reinstated.
and six counts of criminally negligent homicide.
The corporate defendant, Warner-Lambert Company (Warner-Lambert), maintains a plant at 30-30 Thompson Avenue in Long Island City, Queens. At that facility several products, including Freshen-Up Chewing Gum (Freshen-Up), are manufactured. The defendant Arthur Kraft (Kraft) is Warner-Lambert's vice- president in charge of manufacturing. Defendant Ed Harris (Harris) is the Director of Corporate Safety and Security for Warner-Lambert. Both Kraft and Harris have their offices at Warner-Lambert's corporate headquarters in Morris Plains, New Jersey. James O'Mahoney (O'Mahoney) is the plant manager of the manufacturing facility in Long Island City, and John O'Rourke (O'Rourke) is its plant engineer.
On November 21, 1976 Freshen-Up was being manufactured on the fourth floor of the Long Island City plant. On that date an explosion occurred which resulted in the death of six employees and injury to numerous others. The indictment stems from these six deaths.
In 1974 a pilot project for the manufacture of Freshen-Up was begun by the corporate defendant using machines known as Uniplast tabletting machines. At first a single machine, located on the first floor of the plant, was used. Eventually six machines (designated A, B, C, D, E and F) were put into operation on the fourth floor of the Long Island City plant. The machines were operated 24 hours a day (in three eight-hour shifts), six days a week. The only time during the work week that a particular machine would not be in operation was when it was being cleaned or if it had broken down.
In the actual manufacturing process, a slab of gum is produced by a "gum-mixing" machine, after which a section of the slab is passed along to a "hopper" which forms a hollow center in the "rope" of gum. The hollow center is then filled with a jelly-like substance. The rope is next fed into a bed filled with magnesium stearate (MS), a dry lubricant, which is applied by hand to prevent the finished pieces of gum from adhering either to themselves or the machinery. The Uniplast machines have die-cut punches which form the gum into square tablets, encasing the jelly center. Liquid nitrogen is used as a cryogenic or cooling agent to prevent the gum from sticking to the punches of the Uniplast machines.
It is undisputed that the use of magnesium stearate created a "dust condition" on the fourth floor of the corporate defendant's plant. Some of the MS tended to accumulate at the base of the machines and on the overhead pipes (thus becoming inert), but the remainder of the dust remained ambient, that is, dispensed throughout the atmosphere in the area. In bulk or settled form, MS does not create a risk of explosion and if ignited, will either smolder or burn. If MS is airborne at or above a certain concentration, however, it creates a serious risk of explosion if ignited. The point at which an explosion can occur is known as the "lower explosion level" (LEL).
Liquid nitrogen, which was also used in the manufacturing process, is nontoxic, noncombustible, and vaporizes quickly at room temperature. Normally, its usage is not considered hazardous.
It appears without contradiction that ambient MS dust will not explode unless an external source of ignition (e. g., a spark or lit match) is supplied. However, it also appears that a dust-type explosion can be precipitated by a cryogenic phenomenon known as "liquefaction", which occurs when highly volatile liquid oxygen is formed as a result of the condensation of air due to its exposure to a source of intense cold, for example, liquid nitrogen. The liquid oxygen can then collect, and if subjected to ignition, will explode. Moreover, because of its own volatile properties, the liquid oxygen will detonate easily, e. g., as the
result of a sharp impact. This primary explosion could, in turn, supply the ignition which could set off a secondary explosion of sufficiently concentrated MS dust.
The Uniplast machines used by Warner-Lambert at its Long Island City plant were sold to it by the Robert Bosch Packaging Corporation, which designed the machines for the manufacture of hard candy rather than gum. The seller's representative testified before the Grand Jury that the machines were not suitable for operation at very low temperatures and that when put to normal use they would operate at between 150 degrees and 160 degrees Fahrenheit. Other testimony indicated that the temperature of the liquid nitrogen inside the "D" machine (the situs of the explosion) was Minus 320 degrees Fahrenheit, cold enough, incidentally, for liquefaction to occur. In addition, the Bosch representative stated that the machines were not designed for use in conjunction with either liquid nitrogen or magnesium stearate, and that the manufacturer had not modified the machines to accommodate those substances. The motors of the Uniplast machines were described as not being "dust proof" but were capable of such modification had the user so desired.
The plant's chief electrician testified that he had observed the use of MS in the pilot "Freshen-Up" project, and had specifically asked defendant O'Rourke if the machines and the wiring in the Freshen-Up department should be dust proofed. O'Rourke allegedly answered in the negative. 1
On the day before the explosion one of the employees who worked in the area noticed that the "D" machine was smoking or burning, but was told by his foreman not to worry about its condition. Other evidence indicating that the "D" machine was not operating normally included the following: The floor on which that machine was resting was some 12 inches thick, and yet the paint on the ceiling below that spot was peeling. This peeling was attributed to the fact that the "D" machine was operating at a colder temperature than the others.
Immediately prior to the explosion only the "D" machine was operating and certain of defendants' employees were involved in clearing away the settled MS dust by the use of push brooms and airhoses. The use of airhoses to clear away the magnesium stearate had the effect of blowing the settled dust back into the air, thus increasing the ambient concentration.
An expert in cryogenics confirmed the fact that the "peeling paint" was due to the "D" machine having gotten too cold from the use of liquid nitrogen, and stated that his post-explosion examination of that machine revealed that its cast iron base had become fractured, possibly as a result of the extreme cold. Once liquefaction has occurred, it was his opinion that a breakage of metal in the area of the base could provide a sufficient impact to cause an explosion.
As for the quantity of ambient MS dust, there was evidence that the foregoing was at or above the lower explosion level during normal operating conditions, and that an inspection by Warner-Lambert's insurer in February of 1976 (during which the inspector met with O'Rourke and representatives of Harris's office) resulted in written recommendations designed to reduce the ambient MS hazard. Among the recommendations were the following: (1) installation of a central vacuuming system for continuous dust collection; (2) a "housekeeping" program to try to reduce the level of ambient dust; (3) upgrading the electrical equipment so that it would be suitable for use in a dusty atmosphere; and (4) some form of "explosion venting" to relieve pressure in the event of an explosion. A formal report prepared on the basis of this inspection was mailed to Harris in May of 1976 and a letter Also in June of 1976, the plant's operations manager sent a memorandum to O'Mahoney discussing the problem of dust control and concluding that the use of magnesium stearate should be eliminated. 2 Warner-Lambert did not act upon this memorandum, although a "coarser" form of magnesium stearate was apparently substituted in an attempt to alleviate the situation.
accompanying that report specifically stated that there was A hazard of explosion due to the level of MS dust. A second letter sent to Harris...
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