Vispisiano v. Ashland Chemical Co.

• Decision Date: 29 June 1987
• Citation: 107 N.J. 416,527 A.2d 66
• Parties: , Prod.Liab.Rep. (CCH) P 11,529 John VISPISIANO and Barbara Vispisiano, his wife, Plaintiffs-Appellants, and Gene Conlon and Nan Conlon, his wife, Plaintiffs, v. ASHLAND CHEMICAL CO., M & M Mars, Marktex Corporation, Elco Solvents, Becton Dickinson Company, Celanese Corp., Maas & Waldstein Company, Alpha Metals Inc., General Foods Corporation, Inmont Corporation, Johnson & Johnson, Kaiser Aluminum & Chemical, FMC Corp., Air Products & Chemicals, Inc., Charles of the Ritz, Rowe International, Inc., Emulsitone Company, Warner-Chilcott Labs, ITT Rayonier Inc., Sun Chemical Company, Sealed Air Corporation, American Cyanamid Co., Ortho Pharmaceutical Corp., Ortho Diagnostics Inc., Sterling Drug Inc., American Hoechst Corp., Alcan Aluminum Corporation, Exxon Corp., Cosmair Inc., J.B. Williams Co., Inc., Lilly Industrial Coatings Co., Inc., and Congoleum Industries, Inc., Defendants-Respondents, and Stranahan Foil Company, Haward Corporation, Nassau Chemical Corporation, Arvey Corporation, Napco Chemical Division, Tenneco Chemicals Incorporated, Tempil, Sandoz-Wander Incorporated, Bates Manufacturing Company, Diamond Shamrock Corporation, Mennen Company, National Starch & Chemical Company, Reichhold Chemicals Incorporated, Bristol Meyers Products, Milton Can Company, Aluminum Shapes Incorporated, Lightman Drum Company, and Thiokol Corporation, Defendants.
• Court: New Jersey Supreme Court

Page 416

107 N.J. 416

527 A.2d 66, Prod.Liab.Rep. (CCH) P 11,529

John VISPISIANO and Barbara Vispisiano, his wife, Plaintiffs-Appellants, and Gene Conlon and Nan Conlon, his wife, Plaintiffs, v. ASHLAND CHEMICAL CO., M & M Mars, Marktex Corporation, Elco

Solvents, Becton Dickinson Company, Celanese Corp., Maas &

Waldstein Company, Alpha Metals Inc., General Foods

Corporation, Inmont Corporation, Johnson & Johnson, Kaiser

Aluminum & Chemical, FMC Corp., Air Products & Chemicals,

Inc., Charles of the Ritz, Rowe International, Inc.,

Emulsitone Company, Warner-Chilcott Labs, ITT Rayonier Inc.,

Sun Chemical Company, Sealed Air Corporation, American

Cyanamid Co., Ortho Pharmaceutical Corp., Ortho Diagnostics

Inc., Sterling Drug Inc., American Hoechst Corp., Alcan

Aluminum Corporation, Exxon Corp., Cosmair Inc., J.B.

Williams Co., Inc., Lilly Industrial Coatings Co., Inc., and

Congoleum Industries, Inc., Defendants-Respondents,

and

Stranahan Foil Company, Haward Corporation, Nassau Chemical

Corporation, Arvey Corporation, Napco Chemical Division,

Tenneco Chemicals Incorporated, Tempil, Sandoz-Wander

Incorporated, Bates Manufacturing Company, Diamond Shamrock

Corporation, Mennen Company, National Starch & Chemical

Company, Reichhold Chemicals Incorporated, Bristol Meyers

Products, Milton Can Company, Aluminum Shapes Incorporated,

Lightman Drum Company, and Thiokol Corporation, Defendants.

Supreme Court of New Jersey.

Argued Jan. 23, 1986.

Decided June 29, 1987.

Jane B. Cantor, East Brunswick, for appellants (Garuto, Galex & Cantor, attorneys; Jane B. Cantor and Carol F. Gerity, on the briefs).

Michael D. Loprete, Newark, for respondents (Crummy, Del Deo, Dolan, Griffinger & Vecchione, for Johnson & Johnson, Ortho Pharmaceutical Corp., and Ortho Diagnostics Inc., Pitney, Hardin, Kipp & Szuch, Morristown, for J.B. Williams Co., Inc., Tompkins, McGuire & Wachenfeld, Newark, for Lilly Indus. Coatings Co., Inc., Connell, Foley & Geiser, Roseland, for Emulsitone Co., Dughi & Hewit, Cranford, for Congoleum Industries, Inc. and Warner-Chilcott Labs, Hanlon, Dempsey & McHeffey, Edison, for General Foods Corp., Hoagland, Longo, Oropollo & Moran, New Brunswick, for Maas & Waldstein Co., Lasser Hochman, Marcus, Guryan & Kuskin, Roseland, for Alpha Metals Inc. and Kaiser Aluminum & Chemical, Levinson, Conover, Axelrod & Wheaton, Edison, for Inmont Corp., McCarter & English, Newark, for Alcan Aluminum Corp., Paul X. McMenaman, Spring Lake, for Sun Chemical Co., Melli & Doyne, Hackensack, for Charles of the Ritz, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, Livingston, for American Hoechst Corp., Ashland Chemical Co. and ITT Rayonier Inc., Morley, Cramer, Tansey, Haggerty & Fanning, Woodbridge, for Elco Solvents, Moser, Roveto, McGough & von Schaumburgh, Union City, for M & M Mars, Purcell, Ries, Shannon & Mulcahy, Pluckemin, for Sterling Drug Inc., Ronca, McDonald, Judge & Hanley, Livingston, for Marktex Corp., Scanlon & Robinson, for Cosmair Inc., Sills, Beck, Cummis, Zuckerman, Radin & Tischman, Newark, for Becton Dickinson Co., Kirsten, Simon, Friedman, Allen, Cherin & Linken, Newark, for Sealed Air Corp., Wilson, Elser, Moskowitz, Edelman & Dicker, Newark, for Air Products & Chemicals, Inc., American Cyanamid Co., Celanese Corp., Exxon Corp. and FMC Corp., Michael D. Loprete, Newark, Robert L. Hollingshead, Morristown, and Claire T. Barile, Newark, on the brief).

Peter A. Piro, West Orange, submitted a letter in lieu of brief on behalf of respondent Rowe Intern., Inc. (Haskins, Hack, Piro, O'Day, Merklinger & Wallace, attorneys).

PER CURIAM.

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." Viviano v. CBS, Inc., 101 N.J. 538, 546, 503 A.2d 296 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272, 300 A.2d 563 (1973)). This appeal involves the application of the "discovery rule" to a toxic-tort case. Plaintiffs are John Vispisiano and his wife, Barbara. "Plaintiff" hereafter is intended to indicate John; Barbara Vispisiano will be referred to as plaintiff's wife. (A companion case of plaintiffs Gene Conlon and Nan Conlon, his wife, is not part of this appeal.)

Plaintiff seeks recovery of damages for medical complications and bodily injuries resulting from his exposure to toxic chemical wastes during his six-months employment at a toxic-waste disposal site. His complaint against numerous suppliers, processors, manufacturers, and distributors of toxic-waste materials was dismissed as having been filed beyond the time allowed by the applicable statute of limitations, and the Appellate Division affirmed. We granted certification, 101 N.J. 323, 501 A.2d 975 (1985). We now reverse.

I

Plaintiff's exposure to the offending materials occurred during the period of his employment with Chemical Control Corporation in Elizabeth from October 1977 to April 14, 1978. He started this suit, based on negligence and willful and wanton misconduct, on March 12, 1982, almost four years after the final date of his employment with Chemical Control. The issue is whether by application of the "discovery rule" it may be said that the date on which plaintiff filed his complaint falls within the two-year period next after plaintiff's cause of action accrued, as required by N.J.S.A. 2A:14-2, the statute of limitations governing personal injury actions. Put differently, the question is whether plaintiff's cause of action accrued before March 12, 1980, as defendants contend and as the courts below determined, or after that date, as plaintiff argues.

The fact-sensitive nature of our inquiry requires a careful review of the evidence as disclosed at the so-called Lopez hearing, conducted in keeping with the procedures established in Lopez v. Swyer, supra, 62 N.J. 267, 300 A.2d 563, to determine if plaintiff's cause of action accrued more than two years prior to the date on which he filed his complaint. The record of that hearing includes not only the testimony of plaintiff and his treating physician but also various medical records, excerpts from testimony in other proceedings and from depositions and answers to interrogatories, and part of a journal kept by plaintiff's wife.

At the time of the Lopez hearing plaintiff was thirty-four years old. His employment duties during his six months at Chemical Control included unpacking fifty-five gallon drums of various types of bottled chemicals packed in vermiculite, pumping flammable liquid chemicals from drums into a large holding tank, and "help[ing] out" when somebody needed assistance. By way of significant medical history we note that in 1968 he experienced migraine headaches as the result of an automobile accident, and that between 1968 and 1977 he was treated for headaches "a couple of times."

On January 17, 1978, plaintiff sought medical treatment for para-nasal congestion. The physician's note related that plaintiff "works at Chemical Control * * * near vermiculite * * *." The prescribed treatment required Vispisiano to stop using a nasal spray and to return for a follow-up visit.

Recall that the period of plaintiff's employment with Chemical Control was October 1977 to April 14, 1978. Sometime between the beginning of his employment and March 1, 1978, plaintiff began to experience swelling in various parts of his body, and to break out in rashes. He suffered from insomnia as well. Therefore, on March 1, 1978, he consulted Dr. Sandra Moss, an internist at the Rutgers Community Health Plan (RCHP), for treatment of the swelling and rashes and for diagnosis of those conditions. Dr. Moss was unable to pinpoint a cause of plaintiff's symptoms, but she considered plaintiff's recent marriage and new occupational responsibilities as possible causative factors. (Plaintiff's wife attributed the rashes to sun poisoning.) In a clinical note that was not disclosed to plaintiff Dr. Moss wrote: "Note marked chemical exposure."

On March 18, 1978, Vispisiano was rushed to the St. Peter's Medical Center Emergency Room suffering from severe migraine headaches. There he underwent several tests and was eventually admitted by Dr. Philip Thurston. As evidenced by the doctor's report, plaintiff had previously suffered migraines:

This is a 29 year old white male, * * * who had a sudden onset of the worse[sic] headaches of his life * * * 6 days ago. This accompanied by vomiting, no loss of consciousness. * * * Approximately 3 days ago the patient had a similar sudden severe headache * * * and at that time he was admitted to St. Peter's * * *.

The diagnosis was vascular headaches, migraine variant. After a three to four day stay Vispisiano was discharged and directed to take aspirin and Caforgot, a drug used to combat migraines. Significantly, the discharge summary sheet listed the final clinical diagnosis as "Headaches undetermined etiology."

On both March 31 and June 7, 1978, plaintiff saw Dr. Thurston. The March 31 visit was a follow-up at which the doctor learned that the headaches had subsided. By the time of the June visit the headaches had vanished. Dr. Thurston's clinical note of March 31 reads: "I do not believe this patient has any significant health problems," and the one from June Seventh indicates that when plaintiff quit work at Chemical, the headaches ceased. Specifically, Dr. Thurston testified at the Lopez hearing that Vispisiano's "headaches got better because he had--had changed or quit this job * * *." As the doctor recalled it, "I thought that his headaches might have been related to the stress of his job, you know, vascular headaches are made worse by high emotional stress." This theory was communicated to plaintiff, who then interpreted it to mean "[the doctors] just came up, I think, with migraine, but I had stress from the chemicals."

It was not until ...