Rubanick v. Witco Chemical Corp.
| Decision Date | 01 August 1991 |
| Citation | 593 A.2d 733,125 N.J. 421 |
| Court | New Jersey Supreme Court |
| Parties | , 60 USLW 2112, 22 Envtl. L. Rep. 20,222 Patricia RUBANICK, Executrix of the Estate of Ronald G. Rubanick, and Patricia Rubanick, individually and as Guardian Ad Litem for Damien Rubanick & Ronald G. Rubanick, infants, Plaintiff-Respondent, v. WITCO CHEMICAL CORP., (for Discovery), Witco Chemical Corp., ABC Corp., (a fictitious corporation); DEF Corp., (a fictitious corporation); Alan Doe, (identity unknown); Carl Doe, (identity unknown), Defendants, and Monsanto Company, (formerly Monsanto Chemical Corp.), Defendant-Appellant. Ombra DeMAIO, Executrix of the Estate of Anthony DeMaio, and Ombra DeMaio, individually, Plaintiff-Respondent, v. WITCO CHEMICAL CORP., (for Discovery), Witco Chemical Corp., ABC Corp., (a fictitious corporation); DEF Corp., (a fictitious corporation), Alan Doe, (identity unknown), Carl Doe, (identity unknown), Defendants, and Monsanto Company (formerly Monsanto Chemical Corp.), Defendant-Appellant. |
Clyde A. Szuch, for defendant-appellant (Pitney, Hardin, Kipp & Szuch, attorneys, Clyde A. Szuch, Elizabeth J. Sher, and Mary Anne Broderick, on the briefs), Morristown.
Alfred F. Russo, for plaintiffs-respondents (Russo & Casey, attorneys, Timothy M. Casey, on the brief), Woodbridge.
Eugene M. Haring, Newark and Kenneth S. Geller, Jersey City, a member of the District of Columbia bar, submitted a brief on behalf of amici curiae The Business Roundtable, The Chamber of Commerce of the U.S., The Chemical Mfrs Ass'n, The Nat. Ass'n of Mfrs, and The Product Liability Advisory Council, Inc. (McCarter & English, attorneys, Newark).
The opinion of the Court was delivered by
In this case, the Court must determine the standard governing the admissibility of expert evidence relating to the causation of cancer in toxic-tort litigation. The survivors of two men who had worked at a chemical plant where they had been exposed to a toxic substance, polychlorinated biphenyls (PCBs), claim that their decedents' fatal colon cancer was caused by that exposure. The Law Division conducted a hearing to determine whether plaintiffs' expert testimony that PCBs had caused the fatal colon cancer of the victims was admissible. Applying the conventional rule for determining the admissibility of such testimony, the court found that the expert's theory of causation was not sufficiently reliable because it had not been "accepted by at least a substantial minority of the applicable scientific community," and granted summary judgment for defendants. See 225 N.J.Super. 485, 542 A.2d 975 (1988).
A divided panel of the Appellate Division reversed the trial court. It determined that the conventional "general acceptance" test of reliability for theories of causation that are novel and controversial is inadequate in toxic-tort cases. It concluded that a different test of testimonial reliability, one focusing on the soundness of the foundation for the novel scientific theory of causation, is required in toxic-tort litigation. Finding plaintiffs' expert testimony admissible under that standard, it remanded the case to trial. See 242 N.J.Super. 36, 576 A.2d 4 (1990).
Ronald G. Rubanick worked for the Witco Chemical Corporation (Witco) at its plant in Perth Amboy from 1974 through 1979. In 1979 he was diagnosed as suffering from colon cancer. He died of the cancer on July 23, 1980, at the age of twenty-nine. About three-and-one half years after Rubanick's death, Anthony DeMaio, a thirty-year Witco employee, was also diagnosed as suffering from colon cancer. He died of the disease on June 29, 1984, at the age of fifty-two.
Plaintiffs, survivors of Rubanick and DeMaio, brought separate actions, which were heard together in the Appellate Division. Each complaint alleged that the individual decedent's exposure to PCBs caused the decedent's colon cancer and ultimate death. Defendant Monsanto Company (Monsanto) had sold Witco PCB fluids, under the trade-name Therminal, beginning in 1969 and continuing until some time prior to 1976.
Before the Rubanick trial, the court granted Monsanto's motion for an Evidence Rule 8 hearing to assess the qualifications and competence of plaintiff's expert in the case, Dr. Earl Balis. The hearing consumed three days. The court put the burden on Monsanto, the moving party, to present sufficient evidence to call into question the admissibility of the proffered testimony. The court therefore first received testimony from Monsanto's three experts (who were already familiar with Dr. Balis's theory, apparently from deposition testimony). Dr. Balis then testified as plaintiff's sole witness.
Dr. Balis holds a doctorate in biochemistry. Although recently retired at the time of the Evidence Rule 8 hearing, Dr. Balis had been a primary cancer researcher at the Sloan-Kettering Cancer Center in New York City for over thirty-seven years. He had headed a research group primarily concerned with investigating the cause, diagnosis, and treatment of colon cancer. He had also served as chairman of the Department of Biochemistry of the Cornell University Medical College. He was a member of the National Large Bowel Cancer Committee, and an associate editor of the publication General Cancer Research. He has personally authored or participated in the publication of approximately 170 scientific articles, of which approximately fifteen concern carcinogenesis. Dr. Balis was also part of a research team with Dr. Nancy Keminey, Rubanick's treating physician, who was not offered as a witness in this case. Dr. Balis never personally examined Rubanick. This was the first time that Dr. Balis had testified as an expert witness (he told the court he hoped it would be his last).
Dr. Balis's opinion that exposure to PCBs caused Rubanick's colon cancer was essentially based on the following factors: (1) the extremely low incidence of cancer in males under thirty; (2) Rubanick's personal history, e.g., his diet, the fact that he was a non-smoker, and that he did not come from a "cancer family" (i.e., a family whose members are at a high risk of cancer due to genetic predisposition to the disease); (3) the fact that 5 out of 105 employees at Witco developed some kind of cancer during the relevant period; (4) "a very large body of evidence" showing that PCBs produce cancer in experimental animals and (5) thirteen articles on the effects of exposure to PCBs on animals and human beings that, according to Dr. Balis, supported his opinion that PCBs are human carcinogens. Dr. Balis also summarized the evidence concerning the quantity of PCBs to which Rubanick had been exposed as follows:
that there was some thirty-five thousand parts per million PCBs in the soil around there, that he would come home covered with this stuff and the material was oozing out of his clothes, according to I guess it was his wife's testimony, it was something, and I think that report that he lifted these heavy drums and slopping around in this muddy PCB mix, and you also showed me some document about the State of New Jersey, some agency complaining about contamination from that stuff.
The trial court asked Dr. Balis whether his theory that PCBs cause cancer in human beings finds support in the scientific community. Answering that most of the scientific community "pays [no] attention to PCBs whatsoever," Dr. Balis noted that thirteen of the thirty-nine papers he had reviewed on the subject supported his opinion.
Monsanto's first witness was Dr. Thomas Fahey, a licensed physician and board certified internist. At the time of the hearing, Dr. Fahey was the deputy physician in charge of the Memorial Hospital at the Sloan-Kettering Cancer Institute and Associate Dean of Medicine at Cornell University Medical College. He had also served as associate chairman of the Department of Medicine at Memorial Hospital, where his responsibilities included overview of the hospital's oncology services. As an internist at the hospital, he had been directly involved in the care of patients suffering from different types of cancer, including colon cancer. Dr. Fahey, although familiar with epidemiological principles and their scientific uses, did not purport to be an expert in the field of epidemiology. He had done no primary research on carcinogenesis, nor had he ever conducted or participated in research involving the effects of PCBs on humans.
Although he acknowledged that a biochemist with primary research responsibilities would be more conversant with carcinogenesis literature than a treating clinical physician, Dr. Fahey testified that he was nonetheless familiar with the literature. He testified that there are no published scientific studies to suggest that colon cancer has any relationship to PCB exposure, and that there is very little in the literature suggesting that PCBs are directly related to carcinogenesis in humans. Reviewing the studies and data on which Dr. Balis had based his conclusion that PCBs caused Rubanick's colon cancer, Dr. Fahey asserted that that conclusion was "really untenable from the scientific standpoint." He stated that
there is no evidence that I have seen to this date that would definitively suggest that the individual actually did have extensive exposure to PCBs, and there's no evidence to suggest that his disease was different in any way from the usual ordinary run-of-the-mill colon cancer that we see in over a hundred forty thousand individuals a year in this country.
He found particularly objectionable Dr. Balis's use of studies showing that PCBs had caused cancer in animals, testifying that "it's well accepted now in the cancer field that you cannot extrapolate findings in one species to that of another." In response to the court's question whether there is "a substantial body of scientific thought that accepts as a proposition that human exposure to PCBs will give rise to any form of cancer," Dr. Fahey...
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