Rubanick v. Witco Chemical Corp.

• Decision Date: 01 June 1990
• Citation: 576 A.2d 4,242 N.J.Super. 36
• Parties: Patricia RUBANICK, Executrix of the Estate of Ronald G. Rubanick, and Patricia Rubanick, individually and as guardian ad litem for Damien Rubanick and Ronald C. Rubanick, infants, Plaintiffs-Appellants, v. WITCO CHEMICAL CORP., Defendant, and Monsanto Co., Defendant-Respondent. Ombra DeMAIO, Executrix of the Estate of Anthony DeMaio and Ombra DeMaio, individually, Plaintiffs-Appellants, v. WITCO CHEMICAL CORP., Defendant, and Monsanto Co., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 36

242 N.J.Super. 36

576 A.2d 4

Patricia RUBANICK, Executrix of the Estate of Ronald G.

Rubanick, and Patricia Rubanick, individually and as

guardian ad litem for Damien Rubanick and Ronald C.

Rubanick, infants, Plaintiffs-Appellants, v. WITCO CHEMICAL CORP., Defendant, and Monsanto Co., Defendant-Respondent.

Ombra DeMAIO, Executrix of the Estate of Anthony DeMaio and Ombra DeMaio, individually, Plaintiffs-Appellants, v. WITCO CHEMICAL CORP., Defendant, and Monsanto Co., Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Nov. 13, 1989.

Decided June 1, 1990.

Alfred A. Russo, for plaintiffs-appellants (Russo & Casey, attorneys; Alfred A. Russo of counsel; Timothy M. Casey, Woodbridge, on the brief).

William S. Tucker, Jr., for defendant-respondent (Stryker, Tams & Dill, attorneys; Edith K. Payne, Newark, of counsel and on the brief).

Before Judges PETRELLA, HAVEY and STERN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

In these toxic tort cases, consolidated for purposes of this appeal, plaintiffs appeal from orders for summary judgment which dismissed their respective wrongful death actions against defendant Monsanto Company. Plaintiffs' respective decedents, Ronald G. Rubanick and Anthony DeMaio, had been employed at the Witco Chemical ¹ plant in Perth Amboy during a period when the Witco plant had polychlorinated biphenyl (PCB) contamination. The PCBs had been sold to Witco by Monsanto starting in 1969. Plaintiffs alleged in their complaints that their decedents' exposure to the PCBs caused decedents' colon cancers and ultimate untimely deaths.

Immediately before the start of the Rubanick trial, peremptorily scheduled for September 8, 1987, Monsanto moved for an Evidence Rule 8 hearing to challenge the qualifications and competence of plaintiffs' expert in that case, Dr. Earl Balis, a Ph.D. biochemist with primary research responsibilities. Dr. Balis was also listed as the plaintiffs' proposed expert in the DeMaio matter. After a three day in limine hearing conducted on September 9, 10 and 14, 1987, Judge Hamlin, in an opinion reported as Rubanick v. Witco Chemical Corp., 225 N.J.Super. 485, 542 A.2d 975 (Law Div.1988), concluded that while Dr. Balis may offer an opinion as to human carcinogenesis generally, he was not qualified to testify as to specific causation in individual humans because he lacked the requisite education, training and experience in treating cancer patients. Id. at 493-495, 542 A.2d 975.

Judge Hamlin also excluded the testimony because Dr. Balis had offered a "novel scientific opinion" as to causation which had not been accepted by at least a "substantial minority of the applicable scientific community." Id. at 495-503, 542 A.2d 975. Upon exclusion of Dr. Balis' testimony, Monsanto subsequently moved for summary judgment to dismiss both the Rubanick and DeMaio complaints, reasoning that in neither action could the plaintiffs establish a prima facie case without Dr. Balis' testimony. Judge Hamlin agreed and dismissed both complaints. Plaintiffs then appealed.

We agree with that part of the trial judge's opinion which concludes that the expert witness proffered by the plaintiffs in these consolidated cases may express his opinion as to human carcinogenesis. We reverse the judge's conclusion that Dr. Balis may not testify as to specific causation in individual humans and remand for trial.

Although we do not necessarily agree with the motion judge's opinion about the need for a "substantial minority" ² view for the opinion expressed by the expert, we conclude that in the field of causation of cancers novel opinions may be expressed by nonmedical expert testimony, if based on adequate education, training, or experience of the witness, unless the opinion proffered would be either illogical, outlandish or totally speculative such that no reasonable jury could accept the opinion. Dr. Balis' proffered opinion in this case would thus be admissible. We hasten to add that Dr. Balis had testified that the general concept that PCBs are carcinogenic and that they could either cause cancer directly or by promoting cancer was neither created by him nor a unique theory.

The facts developed at the hearing were that Monsanto had sold Witco PCB fluids, under the trade name Therminal, beginning in 1969, but discontinued shipments some time prior to 1976. Rubanick, supra, 225 N.J.Super. at 497, 542 A.2d 975. Therminal is a product name for the PCB compound Arochlor, and during the applicable period Monsanto shipped Arochlor 1242 and 1248, which was said to contain 42% and 48% chlorination respectively. Ibid.

Ronald Rubanick worked at Witco from 1974 through 1979, when he was diagnosed as suffering from colon cancer. He was a non-smoker with no family history of cancer. Rubanick died of the cancer on July 23, 1980, at the age of 29. About two 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 cancer on June 29, 1984, at the age of 52.

For purposes of the in limine hearing, Judge Hamlin accepted the fact that Rubanick, while working for Witco, had walked through an area in the work place which had a high degree of PCB contamination "primarily in the earth." Ibid. In his testimony Balis summarized the information given to him about the quantity of PCBs to which Rubanick had been exposed in the following terms:

... 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 some document about the State of New Jersey, some agency complaining about contamination from that stuff.

At the in limine hearing Monsanto presented its three experts first. It produced Dr. Thomas Fahey, ³ a board certified internist, with experience in the diagnosis and treatment of colon cancer; Dr. Raymond Harbison, a Ph.D. toxicologist who had knowledge and experience with human exposures to PCBs; and Dr. Philip Cole, an epidemiologist, with a M.D. and a Ph.D. who indicated he was conversant with the medical and epidemiological literature as to cancer causation and PCB exposure. Id. at 490-491, 542 A.2d 975. Each of these experts testified that they were aware of no "statistically significant" study which had concluded that PCBs cause cancer, and particularly colon cancer, in human beings. Dr. Harbison declined to recognize the International Agency for Research of Cancer (I.A.R.C.) as a valid scientific authority. Id. at 491, 542 A.2d 975. Dr. Cole does not recognize I.A.R.C. ⁴ as completely authoritative in human cancer causation. Ibid. Their qualifications were challenged not by cross-examination, but by the testimony of Dr. Balis, which was largely elicited as rebuttal testimony.

Dr. Balis has a Ph.D. and worked as a biochemist for the Sloan-Kettering Institute for Cancer Research for over 37 years, specializing in cancer research. He was head of a research group which was primarily concerned with investigating the cause, treatment and diagnosis of colon cancer, and has published extensively on the topic of carcinogenesis. Some of his extensive qualifications are referred to in the published opinion of the trial judge. Id. at 492, 542 A.2d 975.

Balis' opinion that PCB contamination at Witco caused Rubanick's cancer was essentially based on four factors: (1) the extreme rarity of colon cancer in males under the age of 30, particularly when the male is a non-smoker and not from a "cancer family"; ⁵ (2) the fact that 5 out of 105 employees at Witco suffered some type of cancer during the pertinent period; (3) "a very large body of evidence" showing that PCBs produced cancer in experimental animals, and (4) the fact that there is not only a variance of the types of cancers in a PCB exposed population, but as he described them--"unusual cancers." The witness cited various publications, including 13 studies of the effect of PCBs on animals and humans in support of his opinion, with particular emphasis on an epidemiological study by Bertazzi, Riboldi, Pesatori, Radice & Zocchetti, "Cancer Mortality of Capacitor Manufacturing Workers," 11 Amer.J.Indus.Med. 165 (1987).

Balis testified, referring to the Bertazzi study and what happened at the Witco site Y(3)27 one can extrapolate based upon the federal government rules that if a compound is found to cause cancer in experimental animals it's presumed to be carcinogenic to man and it is banned, and secondly, the statistical data indicating in two cases groups of people who were exposed to P.C.B. came down with amounts of cancer where, which were so huge statistically that they cannot be attributed to chance.

In rejecting Dr. Balis' theory of causation, Judge Hamlin considered it "novel" and relied on Windmere, Inc. v. International Ins. Co., 105 N.J. 373, 522 A.2d 405 (1987). He considered "general acceptance" to be acceptance by a substantial minority of the applicable scientific community. Rubanick, supra, 225 N.J.Super. at 500, 542 A.2d 975. Although Judge Hamlin did not spell out what the "applicable" scientific community was he reasoned:

Logic and policy dictate such a construction. If admissibility (as opposed to jury fact finding) were limited only to majority scientific opinions then admissibility would be a simple issue of arithmetic. By opening jury consideration to expert opinions embraced by a substantial minority scientific acceptance, there will be a testing in the advocacy arena of new ideas without prejudicing a party opposing the disfavored or novel principle. [Ibid.]

The question here is not the acceptance of the "general acceptance" standard but whether there are sufficient factual and scientific...