Opinion
CIVIL ACTION NO. 95-2849(JBS)
May 3, 2000
Gary D. Ginsberg, Esquire, Mount Laurel, N.J., Attorney for Plaintiffs.
J. Shane Creamer, Jr., Esquire, Frank A. Luchak, Esquire, Alison R. Petriycki, Esquire, Craig F. Turet, Esquire, DUANE MORRIS HECKSCHER, Cherry Hill, N.J., Attorney for Defendant Armstrong World Industries.
James Crawford Orr, Esquire, WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, Newark, N.J., Attorney for Third-Party Defendant American Mineral Spirits Company.
Christopher M. DiMuro, Esquire, Matthew T. Martens, Esquire, LATHAM WATKINS, Newark, N.J., Attorneys for Third-Party Defendants Monsanto Company and Solutia, Inc.
James Edward Tyrrell, Jr., Esquire, PITNEY, HARDIN, KIPP SZUCH, PC, Morristown, N.J., Attorney for Third-Party Defendant Monsanto Company.
OPINION
This lawsuit was instituted by people who were exposed to polychlorinated biphenyls ("PCBs") while working at Burlington Community College ("BCC") and who allege that they have either contracted, or fear contracting, cancer as a result of that exposure. The case has grown and grown over the years, as plaintiffs were added and as third party defendants were implead. This Court has decided many motions in this case, and many more, summary judgment and in limine alike, remain to be decided. The subject of the instant opinion are motions by Monsanto Company and Solutia Inc. (hereinafter "Monsanto"), Armstrong World Industries ("AWI"), and American Mineral Spirits ("AMSCO") for summary judgment dismissing the personal injury, loss of consortium, and/or wrongful death claims asserted by or on behalf of plaintiffs Vincent Sollimo, Patricia Sollimo, Claire Correale, Lothar Maertin, Joan Maertin, Elizabeth Leedy, Harold Leedy, James Stewart, John Hopen, Robert Scully, Marcia Scully, Gabrielle Nappo, and Frank Nappo, based on their alleged failure to comply with the applicable New Jersey statute of limitations relating to each of their claims.
Plaintiffs do not dispute the fact that their personal injury claims were commenced more than two years after they were formally diagnosed with cancer, and thus arguably out of time under N.J.S.A. 2A:14-2. Plaintiffs seek, however, the benefit of the "discovery rule" exception, arguing that they neither knew nor should have known within the two-year period preceding the filing of their claims that they had been exposed to PCBs at such a level that such exposure might have been causally connected to their cancers, and that they did file their lawsuit within two years of actually learning of the possibility of causation. While plaintiffs concede that the information on which their lawsuit is based was available for their viewing at any time in the college's "Right to Know Act" files, they argue that there would have been no reason for them to go look at those files and discover the possible connection between PCBs and their cancer any sooner than they did. The issue on this summary judgment motion is whether each of these plaintiffs, regarded individually, is entitled to the benefit of the discovery rule. Following careful consideration of each plaintiff's circumstances, and for the reasons stated herein, the motions for summary judgment based on the statute of limitations will be denied.
Monsanto submitted a Statement of Material Facts Not in Issue in accordance with Local Civil Rule 56.1. Plaintiffs did not respond to that Statement, and thus those facts, which are backed up by evidence, are deemed admitted. Indeed, plaintiffs' brief largely accepts the facts as stated by Monsanto, with some exceptions. For example, plaintiffs agree with defendants that numerous newspaper articles discussed the presence of PCBs at the school, and thus plaintiffs do not challenge Monsanto's statement of facts regarding these articles. Plaintiffs point out (and submit evidence showing), however, showing that many of these same newspaper articles which discuss PCBs also noted that the level of PCB contamination was very low. Monsanto's recitation of the facts and description of the articles left out that detail. To the extent that facts are truly undisputed, then, this Court will simply state them without citation to evidence. This Court will cite to particular pieces of evidence where disputes arise.
A. Introductory Background
From approximately August 1968 through April 1970, Armstrong World Industries ("AWI") manufactured and distributed Travertone Sanserra ceiling tiles coated with a plasticizer coating which incorporated Aroclor 1254, a chemical containing PCBs. Monsanto manufactured Aroclor 1254, and the chemical was supplied to AWI by Monsanto and third-party defendant American Mineral Spirits ("AMSCO"). Armstrong manufactured and sold the PCB-containing ceiling tiles to Burlington County College ("BCC") and installed in the Louis M. Parker Center ("Parker Center"), on the campus of BCC, shortly before its opening in August of 1971.
B. The August 25, 1985 Fire
On Sunday, August 25, 1985, an intense fire broke out in a chemical storage vault in the Parker Center, as a result of which the chemical vault was severely burned and approximately 16,000 square feet of the Parker Center sustained smoke damage. The fire, subsequent cleanup, and PCB remediation were widely reported in the local press and prompted a series of bulletins from BCC's then-President, Harmon Pierce, to the faculty, staff, and students. The fire and clean-up were described by numerous people, including plaintiff Sollimo, as extremely disruptive, as the building was largely closed off during the cleanup, eventually being opened up in selected parts as the cleanup continued. Classes were rescheduled to other buildings, including temporary buildings.
Since the fire occurred in a chemical vault, BCC retained a waste management firm, O.H. Materials, Co. ("OHM") to conduct the cleanup because of the possibility of chemical contamination. OHM representatives, each in a fully-enclosed, self-contained breathing apparatus _- which several plaintiffs have described as "space suits" — entered sealed-off areas of the building to assess the damage and to determine whether any hazardous conditions existed which required immediate attention. Over the next several weeks, numerous tests were conducted, during which the Parker Center remained temporarily closed.
Approximately two months after the fire, on October 13, 1985, President Pierce was notified by OHM that certain chemical tests revealed the presence of PCBs on the upper surfaces of ceiling tiles in several locations in the Parker Center. The Parker Center was closed so that further chemical testing could be conducted. The faculty and staff of BCC were invited to a briefing in the college gymnasium that afternoon, where President Pierce informed all who attended that test results had revealed the presence of PCBs in the Parker Center. On October 15, 1985, OHM representatives conducted an additional briefing concerning PCBs for the BCC faculty and staff, which included a handout. One of the Fear of Cancer Plaintiffs, Charles Perrone (whose claims have since been dismissed), testified that he attended the OHM meeting, and that OHM "must have" discussed health risks associated with PCB exposure.
C. Media Coverage and the BCC Memoranda
The detection of PCBs in the Parker Center sparked a second flurry of media attention and the issuance of additional memoranda from BCC President Pierce. For example, on October 16, 1985, an article in the Burlington County Times entitled "PCBs Force Closing of BCC Center," reported "the discovery of polychlorinated biphenyls (PCBs)," a chemical with "toxic and carcinogenic properties," in the air and ceiling tiles at the Burlington County College's main building." (DiMuro Certif. at Ex. 22.) That article noted that "[i]n experiments with rats and mice, PCBs were found to promote liver cancer." (Id.) This same article described the fact that the "federal Occupational Safety and Health Administration (OSHA) has a workplace standard of 500 parts per million, while the National Institute of Occupational Safety and Health (NIOSH) has a recommended standard of one part per million," and stated that "[t]est crews discovered from two to four parts per million in the air of the rooms tested." (Id.)
A similar article entitled "More areas of college center may be closed for chemical cleanup" appeared in the October 17, 1985 edition of the Courier-Post, and reported that "[l]ow levels of toxic polychlorinated biphenyls [were] found during the cleanup of a fire in the Parker Center of Burlington County College." (Id. at Ex. 23.) This article also advised that "PCBs were banned by the federal government in 1976 after they were linked to skin lesions, birth defects and reproductive failure in laboratory animals." (Id.) It additionally noted that the levels of PCBs found in the Parker Center were far below OSHA's maximum and above NIOSH's limit, and it quoted a college spokesperson as saying that "its [sic] not felt that there's any immediate [sic] danger to anybody." (Id.) Similar articles appeared in the October 17th editions of the Burlington County Times and the Trentonian, which described PCBs as a "known carcinogen" and as being a "chemical with toxic and carcinogenic properties," respectively. (Id., Exs. 24 and 25.) On October 17th and 18th, various television news programs televised reports regarding "[l]ow level PCB contamination" in the Parker Center and "traces of toxic PCBs at . . . the Parker Center." (Id. at Exs. 27 and 28.)
On October 18, 1985, President Pierce released a memorandum directed to the faculty, staff, and students, advising them that "air sampling tests [had] disclosed the presence of low levels of PCB in the air near the ceiling in certain areas of the Parker Center. (Id. at Ex. 19.) The memorandum also did note potential health implications from PCBs, stating that
It has been reported that workers occupationally exposed to high levels of PCB have demonstrated a variety of health problems. Contradictorily, it has also been reported that with the exception of high occurrences of acne at bodily points of high exposure, no consistent abnormal findings have been found among workers continually exposed to PCB.
(Id.) However, the letter also noted that "I must stress that the levels of PCB found in Parker Center are extremely low. Indeed, they are many, many times below the present acceptable occupational standard." (Id.) In the memorandum, President Pierce also stressed that "NO PCBs WERE OR HAVE BEEN DETECTED AT `HEAD HEIGHTS' OR BREATHING HEIGHTS IN THE AIR." (Id. (emphasis in original).)
On October 20, 1985, an article appeared on the front page of the Sunday edition of the Burlington County Times, which again reported that "tests found low levels of PCBs in the [Parker Center]." (Id. at Ex. 30.) The next day, President Pierce issued another memorandum to the students and employees. In that memorandum, he indicated that though one test found PCB in an air sample, "SUBSEQUENT EXTENSIVE TESTING THROUGHOUT THE WEEK SHOWED NO PCB PRESENT IN THE AIR IN ANY AREA OF PARKER CENTER. However, low levels were detected on surfaces in a few locations." (Id. (emphasis in original)). The memorandum further explained that Pierce, along with "State and County Health Officials, Department of Higher Education Officials, OHM specialists and others," decided that "[s]ince the air in Parker Center does not contain detectable levels of PCB, it was decided that employees could have open access to the building . . . ." (Id.) The letter repeated the same "Health Implications" listed in the October 18, 1985 memorandum.
Numerous other articles appeared as well, including an October 24, 1985 article in the Burlington County Times entitled "BCC cleanup halted pending further PCB testing," a front page article in the October 1985 edition of the BCC student newspaper, The Word, three additional articles in The Word about the discovery and cleanup of PCBs at the BCC, and October 30, 1985 articles in the Philadelphia Inquirer and the Burlington County Times. The October 30th articles noted that "state inspectors found unusually high levels of PCBs in air and surface samples. `They are definitely levels above what would normally be found in a public building. It would be most prudent to clean it up,' said Alice Freund, a state health official overseeing the inspection at the college." (Id. at Ex. 34.) The article went on to note that "[h]igh levels of PCBs, according to some studies, can harm the respiratory and digestive tracts and cause chloracne, headaches and impotence." Similarly, the Burlington County Times reported that BCC's insurance company refused to pay for the PCB cleanup because "the potentially dangerous PCBs may date from the college's construction." (Id. at Ex. 35.)
By mid-November 1985, the Parker Center fire and cleanup had ignited a firestorm of controversy between the Burlington County Freeholders and the BCC Board of Trustees, which ultimately resulted in the ouster of the Board's President. Several articles which discussed the controversy also identified PCBs as "potentially carcinogenic" or "suspected carcinogens." (Id. at Ex. 36.)
Throughout December 1985 and into early 1986, the college and local press, including the Burlington County Times, The Trenton Times, Courier-Post, and The Word, continued to report on the PCB cleanup and testing process. For example, a January 31, 1986 Trenton Times article noted that "PCBS — suspected carcinogens — were found in the ceiling tiles in the building by the New Jersey Department of Health in October 1985." (Id. at Ex. 38.) The article also noted that the level was between two and four micrograms per cubic meter, which is below OSHA's standards but above that set by NIOSH. (Id.) Though the majority of the article focused on the cost of clean-up and the practical difficulty to teachers and students of having classes shifted around or held in trailers, the article also quoted a state senator as noting that this is "dangerous contamination." (Id.)
Another article, a February 18, 1986 front-page article in The Word entitled "Controversy Rises During PCB Testing," gave more information about the presence of PCBs. It quoted a New Jersey State Department of Health official as noting that certain areas of the building of which use would be prohibited: "`These areas include the cafeteria, library, administrative offices, some classrooms, snack bar, and kitchen,' [the official] said. `These areas have been determined in excess of the recommended health criteria of PCB's.'" (Id. at Ex. 40.) The article did note that studies of PCBs "showed that the substance did cause cancer in low concentrations of lab animals, but no cases of individuals developing cancer from being exposed to PCBs on a regular basis arose." (Id.) The article also quoted Alan Todd, an industrial hygienist, as "suggest[ing] the likelihood of ingesting PCB particles is severely [sic] low. A very low concentration of the chemical in the form of dust is airborn. . . . [T]he dust would have to be eaten or inhaled to have an effect on an individual, and the college's clean environment thwarts the possibility for the dust to accumulate." (Id.)
D. Discovery of Source of PCBs and Coverage Thereof
During this same time period, President Pierce continued issuing bulletins to the community updating them on the PCB cleanup in the Parker Center. On March 10, 1986, he issued a Special Bulletin to the staff and students of BCC that was distributed to all faculty and staff. (Id. at Ex. 42.) In that bulletin, he announced that the source of the PCB contamination of the Parker Center had been identified as coming from certain types of ceiling tiles that were installed between 1969 and 1971 when the Parker Center was under construction. (Id.) Pierce also noted that further testing would be done to determine how much PCB-laden dust was lying around. (Id.) A copy of a press release was attached to the bulletin, noting the presence of PCBs in the ceiling tiles. (Id.) The press release also quoted an industrial hygienist as noting that "[t]here is no immediate danger to those working in the Parker Center," but that the PCBs would be removed because of environmental regulations (id.), information which had also been contained in the March 10th bulletin itself.
A bill was proposed in the state legislature to appropriate $3.5 million for the removal of PCBs. After introduction of the legislation and issuance of President Pierce's press release, articles appeared in the Burlington County Times on March 12th and 17th and in the March 23rd edition of the Courier-Post which reported developments on the cleanup bill (asking the state for funding) and the source of the PCB contamination. The first sentence of the March 12th article notes that the funding would be for the "removal of potentially cancer-causing materials" from the college. (Id. at Ex. 43.) The March 17th article refers to PCBs as "potentially carcinogenic" but also notes that "there is nothing in the findings that indicates any immediate danger to anybody." (Id. at Ex. 44.) The Courier-Post article noted that PCB use was banned "by the federal government 10 years ago after they were linked to birth defects, skin disorders and reproductive failure in laboratory animals." (Id. at Ex. 45.)
On April 2, 1986, a substantial article entitled "The lingering threat of PCBs" appeared in the Philadelphia Inquirer; it was distributed to the faculty of BCC. (Id. at Ex. 46.) The third paragraph of the article notes that "[e]xposure to PCBs has caused cancer and liver problems in laboratory rats. Although there is no conclusive evidence of harm to humans from PCBs other than severe acne, those animal-test results have prompted the state Department of Health to consider PCBs a possible carcinogen in humans." (Id.) The article continued by noting that no one in the Parker Center "has developed a bad case of acne or any other noticeable health problem. But no one, least of all Pierce, is happy to be working under a ceiling tile that could be hazardous to his health." (Id.) Pierce was quoted as saying that "I do not think it is presently a health hazard, but is not something one wants to live with . . . ." (Id.) A State Health Department official was also quoted, noting that "PCB contamination was not an immediate health threat but `it's a level above which people should not be exposed.'" (Id.) In a Special Bulletin dated April 23, 1986, President Pierce continued to advise Students and Staff of BCC of developments regarding the PCB cleanup. (Id. at Ex. 48.) This particular bulletin did not contain information about the amount of PCB contamination or its potential health effects.
On May 17, 1986, in an article entitled "State finds PCB in college ceiling", the Courier-Post reported that "[t]he state Department of Health has found concentrations of [PCBs] . . . in the paint on ceiling tiles at Burlington County College, but at levels not considered dangerous during short-term exposure." (Id. at Ex. 49.) The article went on to note that the levels found were above those recommended by NIOSH. Though the article noted the Department of Health's belief that there was no immediate risk of harm to building occupants, it also noted the Department's statement that "[t]his is one of those situations where long-term exposure, over a period of decades, could possibly cause health problems." (Id.) Additionally, the article commented that PCBS "are known to have caused cancer in laboratory animals." (Id.) A July 18, 1986 article in the Trenton Times also commented that long-term exposure could cause health problems and that "PCBs cause cancer in animals, and national and international health agencies recommend that it be regulated as a carcinogen." (Id. at Ex. 50.)
In August of 1986, BCC's Interim President, Joseph F. Russo, issued a memorandum to the faculty and staff regarding the "status of the . . . PCB cleanup of other areas in the Parker Center," noting his anticipation that clean-up would be complete by the end of the month. (Id. at Ex. 51.)
Eight months later, in a March 29, 1987 article in the Asbury Park Press entitled "N.J. fire reveals major tilemaker used PCBs to fireproof ceiling tiles," it was reported that during "decontamination of the Parker Center, PCB levels ranging from 100 to 750 parts per million were recorded." (Id. at Ex. 52.) The same article noted that this was above NIOSH standards and that the Center for Disease Control in Atlanta had advised that "PCBs are considered a possible human carcinogen and are suspected of causing reproductive problems in laboratory animals.
E. The Immediate Concerns of the BCC Faculty
In late October 1985, shortly after the discovery of PCBs and in the midst of the height of media attention, BCC employees began expressing health concerns to the College administration regarding their exposure to PCBs. In an October 30, 1985 memorandum to President Pierce, Ken McCarty, BCC's Personnel Director, references "four major health issues expressed by BCC employees regarding PCBs." (Id. at Ex. 53.) One of those concerns was whether PCBs could have an adverse effect on an employee "recovering from a mastectomy performed because of cancer." (Id.) Others of these concerns were submitted by Hilda Moore, and employee in the Admissions and Registration Office, in the form of thirteen questions. (Id.) Ms. Moore suggested a meeting with the Department of Health.
Apparently in response, about this time, BCC distributed to its employees a report generated by the Department of Environmental Science at Cook College, Rutgers University, which contained information concerning PCBs, including its properties and alleged health effects. (Id. at Ex. 55.) The report also contained a list of reference materials. (Id.) Possible health effects mentioned in this report were chloracne (a type of acne); disorders of the peripheral nervous system, eye discharges, hyperpigmentation of the skin, nails, and mucous membranes; reproductive failures; gastric disorders; decreased resistance to disease; skin lesions and tumors in laboratory animals; and liver cancer (in experiments with mice and rats). (Id.) The report noted that
Workers occupationally exposed to high PCB concentrations have exhibited cases of chloracne, digestive disturbances, jaundice, impotence, throat and respiratory irritations, and severe headaches. This is in contrast to a recent report by Ecology and Environment, Inc. (1981) which states that other than high incidences of chloracne, no consistent abnormal findings have been found among workers continually exposed to PCB's. According to a study presented at the New York Academy of Sciences Symposium of 1979: Health Effects of Halogenated Aromatic Hydrocarbons, the occurrence of melanomas (a type of malignant tumor) was significantly higher for a test group of occupationally exposed workers than for the general population. As is indicated by the contradictory findings of the aforementioned studies there exists a controversy over the extent of harm which may be caused by PCB's. In fact, it has been suggested that much of the toxicity of PCB's may not be caused by PCB's. In fact, it has been suggested that much of the toxicity of PCB's may be due to impurities particularly polychlorinated dibenzofurane, or PCDF's . . . .
(Id.)
Thereafter, on November 5, 1985, President Pierce issued a Bulletin to "All Students and Staff," which distribution lists indicated was distributed directly to all faculty and staff and to the Student Senate, in response to "a number of questions regarding the effects of PCB on human health." (Id. at Ex. 56.) The bulletin noted that Dr. Timothy Liveright, a physician, would make a presentation and answer questions at a meeting with faculty, staff, students, and a NJDOH representative on November 14, 1985. (Id.) According to Mr. McCarty's notes of the presentation, Dr. Liveright remarked that PCBs adversely affect the reproductive system and encourage tumor growth and cancer cell production." (Id. at Ex. 58.) Dr. Liveright essentially commented on the same health effects noted in the report distributed to employees, focusing on chloracne, liver dysfunction, reproductive changes, and possible tumor production. (Id.) However, he also noted that "[w]hile PCB is potentially risky to health, the levels at BCC generally speaking are not high enough for concern." (Id.) In response to the question "What are all of the possible effects that PCB's can have on an individual's health," Dr. Liveright answered that "[r]epetitive problems include chloracne, liver changes, little glands in the eyes causing extra excretions, pigmentation, offspring problems, and maternal milk." (Id.) He emphasized that the levels at BCC were quite low and unlikely to cause some of the more serious problems. (Id.) Dr. Liveright also explained that the NIOSH standard, to which the exposure levels at BCC were close, "has a 500-fold safety factor built into it; this means that the level must go 500 times above the NIOSH standard to be of danger." (Id.) Overall, the presentation stressed that the problem at BCC was "far more one of politics and finances than one of health" and that the levels of PCBs at the college were not high enough for concern. (Id.)
F. The BCC "Right to Know Act" Files Regarding the Fire and PCB Remediation
Since the mid-1980s, BCC's "Right to Know" files existed, and BCC has had a "Right to Know Officer" since at least 1986. The office is a place where, pursuant to N.J.S.A. 34:5A-1, certain disclosures regarding hazardous substances in the workplace are maintained in a file accessible to employees.
During November 1993, plaintiffs Harry Schmoll (a part-time lawyer who has taught business law and criminal justice at BCC since 1974 and who was the faculty association president in 1993- 1994) and Kathleen Sweeney visited the office of Safety Officer John Wambach to review the "Right to Know" files pertaining to the 1985 Parker Center fire and PCBs. Schmoll and Sweeney wanted to see if there were any toxic substances contained in the carpeting or other materials in a new building called the Academic Building. (Schmoll Dep. at 48:23 — 49:2.) According to Mr. Schmoll, after the fire in 1985, the building was shut down and then reopened in 1986, and
[w]e were never told anything about PCBs. We were never told anything about health aspects.
All we were told was that it was okay for us to resume our activities in the building. We were never — there were never any meetings held by the administration or by Armstrong to advise us or give us any information about the possible effects of PCBs or that it was a dangerous carcinogenic. And then here we are — then people got sick, people were getting sick and . . . [in June 1993] I — I wrote a memo in — right after becoming president of the college in May of 1983, I wrote a letter to the chairman of the board of trustees, Steven Lee, with a copy to President Robert Messina, sent a memo to them indicating to them that some of our faculty members were very ill and had cancer and I asked them to look into it.
(Id. at 56:19 — 57:22.) According to Schmoll, he never knew anything about PCBs, but he wrote to the Board of Trustees because he wondered if some environmental aspect of the school might be causing the fairly rare forms of cancer which three faculty members had. (Id. at 57:23 — 58:21.) At the time Schmoll wrote the letter, he did not talk to anybody else about it. (Id. at 58:22 — 59:6.)
According to Sweeney, however, before she reviewed the "Right to Know" files, she had researched PCBs in the Merck Index which she alleged described "a correlation between concentrations of [PCBs] and liver cancer." (Sweeney Dep. 41:8-25.) She testified at her deposition that it was this information which caused her to focus upon PCBs during her search of the "Right to Know" files. (Id.)
When Schmoll and Sweeney were in the "Right to Know office," Schmoll testified at his deposition, they accidentally discovered a large amount of information on PCBs in the Parker Center, including testing results, reports, and studies. (Schmoll Dep. at 61-64.) This included documents generated in the 1986-1987 time period which were available in the "Right to Know" files for many years. Schmoll testified that they were shocked to learn that the real reason that carpeting in the building had been replaced in 1988 (when the carpeting was only two years old) was not for redecorating purposes, as they had previously been told, but because "they were saturated with PCBs . . ." (Id.) According to Sweeney, however, when Sweeney and Schmoll went to the "Right to Know" office, Sweeney asked for information regarding PCBs in tiles because of what she had read in the Merck Index. (Sweeney Dep. at 40:15-17.) In December of 1993, Schmoll requested copies of various PCB reports. The information Sweeney and Schmoll perused included letters from Armstrong indicating that they were the company that supplied the PCB-containing ceiling tiles that were installed on the Parker Center. (Schmoll Dep. at 63-64.)
At a February 1994 faculty meeting, Schmoll explained the significance of the documents he had discovered in the "Right to Know" office and how shocking it was to him personally. (Id. at 67:25 — 68:22.) As a result of this talk, a resolution was passed by the faculty to investigate whether the Parker Center was in fact a safe place to work. (Id. at 69:16-20.) The support staff passed a similar resolution. (Id. at 72:22-25.) In response, the college hired a company to conduct testing for PCBs in the Parker Center and a speaker, Dr. Mohr, to discuss workplace safety concerns. (Id. at 72:7-20.)
G. The Cancer Plaintiffs and Their Diagnoses
After the fire, several BCC faculty and staff (now plaintiffs here) were diagnosed with various forms of cancer. The undisputed facts concerning these plaintiffs which are pertinent to the instant motion are set forth below.
1. Vincent Sollimo
Dr. Sollimo, a chemistry professor at BCC, was diagnosed with non-Hodgkins lymphoma on April 28, 1992. His claims were in the initial complaint filed on March 31, 1995, as were claims for loss of consortium filed by his wife, Patricia.
Dr. Sollimo has taught chemistry at BCC since 1969. He was aware of the fire in August of 1985 and he saw people in "space suits" cleaning up after the fire. Dr. Sollimo testified at his deposition that he believed that the reason the Parker Center had been closed was because chemicals in the storage vault had incinerated and spread throughout the center. (Sollimo Dep. at 129:20-25.) After the fire, Dr. Sollimo recalled attending a meeting discussing the fire and its aftermath but did not recall the specific chemicals that were discussed. (Sollimo Dep. at 163.) He also received information from the NJDOH in verbal briefings for the entire staff. (Id. at 163:19-25.) He recalls that there was at least one meeting in which people where invited to ask questions. (Id. at 164:2-7.) However, as a result of the meeting, he was reassured that everything was done to protect the safety and health of the employees of the college. (Id. at 164:17 — 165:6.)
Despite his presence at the verbal briefings and the fact that Sollimo testified that he had a strong practice of reading memos form the administration because it is his responsibility to do so (id. at 216:20-24), Sollimo testified that he did not learn of the PCBs until Dr. Schmoll sent a memo regarding them in early 1994. (Id. at 158-160.) He stated that if he had read the administration's memos, he would have known that PCBs were present in the Parker Center prior to 1994. (Id. at 216:16-19.)
Prior to being diagnosed with cancer, Sollimo did not have any of the symptoms typically associated with PCB exposure (like chloracne). He did not raise the issue of PCBs with his doctor until after he learned of his exposure in 1994.
2. Claire Correale
Claire Correale, a chemistry and geology professor at BCC from 1987 to 1997, was diagnosed with basal cell carcinoma on her left ear sometime in 1987. The cancer recurred in 1992, and her ear was removed on February 22, 1993. In the Third Amended Complaint filed on June 12, 1995, Correale asserted only a fear of cancer claim. In the Fifth Amended Complaint on May 23, 1996, her fear of cancer claim was amended to state a personal injury cancer claim.
Correale testified at her deposition that she recalled the fire and seeing people in protective clothing cleaning the building, but she thought that they were cleaning up the chemicals contained in the chemistry stockroom. (Correale Dep. at 50-52; 53; 60-61.) All she remembers is that in order to explain why faculty and students could not go into the building, the administration told her "that there was chemical residue and they were cleaning the building after the fire." (Id. at 61:4_14.) The only chemical she remembers being involved in the fire was mercury. (Id. at 131.) Correale testified that she had known from teaching that PCBs are carcinogenic, but she testified that she did not hear about the PCBs in the Parker Center until Harry Schmoll told her in 1994. (Id. at 36:9 — 41:15.) It was at the meeting in 1994, Correale said, that she made the connection between her cancer and her exposure to PCBs. (Id. at 159-160.)
Correale also testified that she did not read newspapers during her tenure at BCC except for the Sunday New York Times. (Id. at 99-100.) She does not recall reading any articles or receiving any memos concerning the fire. (Id. at 128-129; 172- 173; 177-178.) She explained that "lots of times" things at BCC were not put in individual mailboxes but rather were just "dumped" in the general vicinity of the mailboxes, leading everyone to ignore them. (Id. at 175:25 — 176:23.) It was her practice to read things put in her mailbox. (Id.)
Correale never mentioned PCBs to any of her physicians before 1994. Other than cancer, she did not have any symptoms that had been listed as associated with PCB exposure (such as chloracne).
3. John Hopen
John Hopen, who has taught sociology at BCC since 1969 (but who only taught in the Parker Center from 1991 on), was diagnosed with a malignant melanoma of his right arm on or about April 22, 1991. He testified at his deposition that he first learned of a possible link between exposure to PCBs in general and potential adverse health effects when he spoke to Harry Schmoll in 1994. (Hopen Dep. at 96:11 — 99:9.) Schmoll gave Hopen the name of the firm of Gary Ginsberg to discuss the possible link between his cancer and PCBs in more detail. (Id. at 99:21 — 100:15.) His personal injury cancer claim was in the first complaint filed on March 31, 1995.
Prior to seeing the Ginsberg firm, Mr. Hopen did not read any literature relating to PCBs and their effect on humans. (Id. at 107:2-18.) He did not subscribe to any local papers between 1985 and 1991, as he would only read the Wall Street Journal, New York Times, and Sunday Philadelphia Inquirer. (Id. at 108:2-22.) He testified that he did not learn that PCB-containing ceiling tiles were being removed from the Parker Center until 1994. (Id. at 112-115.) Prior to meeting with the Ginsberg firm, he did not recall reading any document concerning the presence of PCB- containing ceiling tiles in the college, nor did he discuss the topic with administrators or attend meetings where there was a discussion of PCBs. (Id. at 121.)
Additionally, Mr. Hopen never mentioned PCBs to any of his physicians prior to 1994, and he did not experience other symptoms associated with PCB exposure, such as chloracne.
4. James Stewart
Mr. Stewart, who taught business studies at BCC from 1975 through 1987, began developing a non-healing lesion on his left eyebrow in 1980 that was ultimately diagnosed on April 16, 1987 as basal cell carcinoma. His claim for personal injuries from cancer was included in the original, March 31, 1995, complaint.
Stewart testified that he learned of the fire in the Parker Center through "word of mouth" within a day or so after the fire. (Stewart Dep. at 56:19 — 57:9.) He saw the furniture from his office out of the lawn of the school and was told that they could have been contaminated because of a chemical fire. (Id. at 59:6- 20.) He was not allowed to handle the draperies or other cloth materials because they would absorb the chemicals. (Id. at 60:16 — 61:7.) Stewart testified that he did not recall anyone mentioning the chemicals involved in the fire (id. at 64:16-22), and that he had no understanding that ceiling tiles and carpeting were removed. (Id. at 75-77.) He did not recall seeing men in protective clothing in the Parker Center (id. at 76:19-25), nor did he attend any meetings concerning the fire or its aftermath. (Id. at 83:24 — 84:10.) He learned of the presence of PCBs in the Parker Center at the end of 1994 when Harry Schmoll called him. (Id. at 84:18 — 85:7.)
Prior to his cancer, Stewart had none of the other medical problems associated with PCB exposure, such as chloracne.
5. Robert Scully
Robert Scully taught in the Business Department at BCC from 1982 until 1989, and he returned again for the 1991-1992 school year. In June of 1970, he had been diagnosed with basal cell carcinoma and carcinoma in situ c/w Bowen's disease," something which, if left untreated, is likely to develop into squamous cell carcinoma. (Urbach Dep., DiMuro Certif. Ex. 82.) Between 1970 and 1984, more than twenty cancerous tumors of one sort or another were removed from Mr. Scully's skin. (Id.) Around January 20, 1992, a crusty patch of skin that had been present for approximately two years on the second toe of Mr. Scully's left foot was diagnosed as squamous cell carcinoma. (DiMuro Certif. Ex. 84.) His personal injury claims for cancer were contained in the original complaint on March 31, 1995. His wife, Marcia, asserted a loss of consortium claim.
Scully became involved in this lawsuit after speaking with Harry Schmoll in the summer of 1994. (Scully 1997 Dep. at 13:19 — 19:1.) Prior to speaking with Mr. Schmoll, he had no conversations about PCBs with anyone. (Id. at 17.) He had no prior knowledge about claims regarding ceiling tiles in the Parker Center. (Id. at 18.) Although he remembered a fire that involved chemicals, he also knew that the building was evacuated and cleaned and that everything returned to normal. (Id. at 25:25 — 26:7.) He did not recall any of the specific chemicals involved with the fire (id. at 188:12-16), nor does he recall any presentations on the cleanup after the fire. (Id. at 186-188.)
Scully never mentioned PCBs to his doctors prior to the summer of 1994. He did not have any of the other health effects (such as chloracne) associated with PCB exposure.
6. Gabrielle Nappo
Ms. Nappo was a part-time faculty member and computer programmer at BCC from 1978 through 1984. She first learned of the fire at the Parker Center from her husband (G. Nappo Dep. at 77), who has been employed continuously at BCC since 1970. (F. Nappo Dep. at 12, 13, 16.) She stated that the fire was not a significant event for her because she had very little contact with people at the college. (Id. at 77-81.) She saw no memos, articles, or news programs concerning the fire at the Parker Center or its cleanup. (Id.) She testified that she was first informed of the link between PCBs and the ceiling tiles in the Parker Center from her husband in 1994; he is the only person with whom she spoke about the link, and she had not spoken about the link with anyone else (including her physicians) since that time. (Id. at 82-87; 88; 177-180; 186-189.) Her husband admits knowing about the presence of PCBs a year after clean-up was completed. (Id. at 39.)
In April of 1986, Ms. Nappo had a basal cell carcinoma removed from her left anterior chest wall. (DiMuro Certif. Ex. 86.) On December 9, 1993, she was diagnosed with a carcinoid tumor of the lung. (Id. at Ex. 87.) She came to the Ginsberg law firm in the fall of 1995. (Id. at 157.) Her claim for fear of cancer was first stated in the Fifth Amended Complaint filed on May 23, 1996. The claim was amended to one for personal injury from cancer in the Sixth Amended Complaint filed on September 23, 1996. In that complaint, her husband Frank asserted a loss of consortium claim.
Other than the cancer, Ms. Nappo did not experience any of the other health effects reported to be associated with PCB exposure.
7. Elizabeth Leedy
Elizabeth Leedy was a telephone operator/communications coordinator at BCC from November 1974 through her resignation in 1993. She was diagnosed with breast cancer on June 5, 1985, and she died on May 6, 1994. Her husband, Harold, as executor of his wife's estate, asserted a claim for personal injuries from PCB exposure on his wife's estate's behalf, as well as his own claims for loss of consortium and wrongful death, in the original March 31, 1995 complaint.
Mr. Leedy testified that his wife did inform him of the fire in the Parker Center in 1985, but she never mentioned PCBs or any other specific chemicals involved with the fire. (Leedy Dep. at 50:15 — 51:9, 53:9-16.) Neither Mr. Leedy nor his wife were much of newspaper-readers (id. at 51-53), and Mr. Leedy never heard any information about potential ceiling tile contamination (id. at 54:11-16) until Harry Schmoll called him in February of 1995 and told him that there was a cancer-causing agent at the college and that he should contact the Gary Ginsberg firm. (Id. at 55:3 — 56:6.) He was shocked and surprised to hear this news. (Id. at 57:4-5.)
To Mr. Leedy's knowledge, his wife was not aware of the presence of PCBs at the college. (Id. at 183:15-17.) Her medical records do not contain any reference to PCBs. Mrs. Leedy did not have any other symptoms associated with PCB exposure.
8. Lothar Maertin
Mr. Maertin was a member of the BCC mathematics department faculty from 1970 through his death in early 1994. Mr. Maertin, who had a clinical history of dysphagia (difficulty swallowing), was diagnosed with esophageal cancer on June 25, 1992, and died on January 4, 1994. As set forth in the initial Complaint, Joan Maertin, as executrix of her husband's estate, seeks damages for personal injuries sustained by Mr. Maertin as a result of his alleged PCB exposure. That claim, as well as her own claims for loss of consortium, wrongful death, and fear of cancer (since dismissed) were all brought in the original complaint on March 31, 1995.
Ms. Maertin testified that she recalled the fire that occurred in the chemical vault at the Parker Center in 1985, when she was a student at the college. (Maertin I Dep. at 77-82.) She testified that neither she nor her husband ever received any information about PCBs after the fire in 1985 (id. at 84-85); her husband never knew that PCBs were in the ceiling tiles at the college. (Maertin II Dep. at 122-123; Maertin I Dep. at 85:10- 11.) She first learned of the possible causal connection between her husband's death and PCBs in the Parker Center on April 23, 1994 from Judith Nelson. (Maertin I Dep. at 95.) She then finally thought she had the answer to her husband's question of "I don't understand how this happened," and she spoke with Kathleen Sweeney about it. (Id. at 99-105.)
Mr. Maertin never mentioned PCBs to any of his doctors prior to his death, and he did not have any other health effects (such as chloracne) associated with PCB exposure.
II. DISCUSSION
A. Summary Judgment Standard of Review
Monsanto, Armstrong, and AMSCO brought their motions as ones for summary judgment, and, normally, the standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
In Lopez v. Swyer, 62 N.J. 267, 272 (1973), however, the New Jersey Supreme Court held that "whenever a plaintiff claims a right to relief from the bar of the statute of limitations by virtue of the so-called `discovery' rule, the question as to whether such relief is properly available shall be deemed an issue for determination by the court rather than the jury." See also Dattoli v. Yanelli, 911 F. Supp. 143, 145 (D.N.J. 1995); Axelrod v. CBS Publications, 185 N.J. Super. 359, 367 (App.Div. 1982). The Court has the task, under New Jersey law, of determining the facts pertinent to the discovery rule, based upon all material facts of record. If, on the basis of those factual and legal determinations, the Court finds that the discovery rule is applicable, the motions for summary judgment shall be denied. If the Court finds, however, that the statute of limitations has run and that the discovery rule is not applicable, then the Court shall grant the motions for summary judgment.
The burden of proof with respect to the "discovery rule" exception rests with the party seeking to claim the benefit of that rule." Lopez, 62 N.J. at 276. Thus, on the defendant's motion for summary judgment on the basis of the statute of limitations, "it is the plaintiff who then bears the burden of pointing to specific facts of record that would justify the factfinder in concluding that the suit is timely" under the discovery rule." Estate of Arocco v. General Elec. Co., 939 F. Supp. 91, 95 (D.Mass. 1996). Generally, the inquiry into the discovery rule requires that the Court hold a hearing and take testimony. Lopez, 62 N.J. at 275-76. However, "[w]here credibility is not involved, affidavits, with or without depositions may suffice; it is for the trial judge to decide . . . ." Id. According to the New Jersey Supreme Court in that case, "[t]he determinative factors may include but need not be limited to: the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant." Id. at 276.
In the present case, the Court has the benefit of deposition testimony on these issues from each plaintiff or surviving spouse, as well as comprehensive documentary discovery, organizing all facts and circumstances in an orderly way. In the exercise of discretion, the Court finds that this record is more than adequate to apply the relevant principles of New Jersey law to this factual record, without additional testimony.
B. The Statute of Limitations and the Discovery Rule
Pursuant to N.J.S.A. 2A:14-2, a personal injury suit must "be commenced within two years next after the cause of any such action . . . accrue[s]." A cause of action "in tort accrues at the time when a right first arises to institute and maintain an action against a wrongdoer." Tevis v. Tevis, 79 N.J. 422, 431 (1979) (internal citations omitted). As explained in Vispisiano v. Ashland Chem. Co., 107 N.J. 416 (1987), the purpose of the rule is to encourage litigants to diligently pursue their claims, and to free courts from stale claims, for "[w]hen an injured person sleeps on his rights so long as to let the customary period of limitations expire, `the pertinent considerations of individual justice as well as the broader considerations of repose coincide to bar his action.'" Id. at 426 (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111 (1973)).
In certain cases, it is easy to know when the cause of action accrues. For example, if the personal injury at issue is that a hospital left an instrument in a patient's body after surgery, it is quite clear when the injury occurred and that a cause of action has accrued. In other cases, however, it is not so easy, due to the "nature of the injury and the difficulty inherent in discovering certain types of injuries."Vispisiano, 107 N.J. at 428. This is especially true of toxic tort cases and other cases of complex medical causation. In cases of complex medical causation, it is not at all self-evident that the cause of injury was '(a) the fault of (b), a third party. Not only is the nature of the injury generally unclear, its very existence is frequently masked.'"Mancuso v. Neckles, 163 N.J. 26, 2000 WL 175279, *3 (N.J. Feb. 16, 2000). Further,
[t]oxic tort victims do not become aware of their injuries until decades after the tortious act. Thus, not simply the occasional plaintiff, but instead an entire class of plaintiffs is deprived of its claims by a toxic tort statute of limitations that bars suit before injuries so much as manifest themselves. Such a deprivation cannot be justified on the traditional ground that the victims "slept on their rights," until after their claims were barred. Nor can a toxic tortfeasor demand psychological protection from "surprise" suits brought against him decades after the tortious act when, like so many asbestos manufacturers in the 1950's, he was or should have been aware that he was exposing to others a substance that would cause a statistically predictable incidence of latent disease.Id. (quoting Note, The Fairness and Constitutionality of Statutes of Limitations for Toxic Tort Suits, 96 Harv. L. Rev. 1683, 1685 (1983)). As the New Jersey Supreme Court pointed out in Vispisiano, there are over five million organic chemicals and inorganic substances used today, with more being created yearly, and many diseases which are caused by or worsened by exposure to certain toxic substances are very similar to diseases which may be caused by other agents. Id. at 429. Cancer is one of those diseases for which there are many, many causes, some genetic and some environmentally-caused and some of unknown etiology. The mere fact that one has been diagnosed with cancer does not necessarily put someone on notice that any particular element is to blame.
Therefore, the New Jersey courts developed the "discovery rule," an equitable principle which "provides that in an appropriate case a cause of action will not be held to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). The question is "whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another. The standard is basically an objective one whether plaintiff `knew or should have known' of sufficient facts to start the statute of limitations running."Martinez v. Cooper Hospital- University Medical Center, 163 N.J. 45, 2000 WL 175278, *3 (N.J. Feb. 16. 2000). The rule can be applied in situations where the plaintiff does not know of the injury itself or where the plaintiff knows of the injury but does not know that another is at fault for that injury. "[K]nowledge of fault for purposes of the discovery rule has a circumscribed meaning: it requires only the awareness of facts that would alert a reasonable person exercising ordinary diligence that a third party's conduct may have caused or contributed to the cause of the injury and that conduct itself might possibly have been unreasonable or lacking in due care." Savage v. Old Bridge-Sayreville Medical Group, P.A., 134 N.J. 241, 248 (1993).
This does not mean that a plaintiff's statute of limitations starts running only when the plaintiff is certain about who is at fault or that another is at fault at all. Id. at 961. Discovering that one might have a basis for an actionable claim means perceiving an injury and believing, — or having reason to believe — with a degree of firmness that would lead a reasonable person to investigate the matter if he is interested in seeking redress — that his injury was probably caused by the fault of another." Id. Medical confirmation of the cause of injury is not necessary. Vispisiano, 107 N.J. at 437. In Vispisiano, which concerned chemical poisoning, the New Jersey Supreme Court said: "We hasten to add that we do not insist on medical confirmation as such: a physician's willingness to include chemical poisoning in the differential diagnosis would probably suffice, as would any other reasonably reliable source of information." Id.
C. Application of the Discovery Rule in This Case
In this case, each of the Cancer Plaintiffs was injured — diagnosed with cancer — more than two years prior to the date on which their actions were filed. Each of them claims the benefit of the discovery rule, each contending that he or she was not — and should not have been — aware of facts sufficient to file suit prior to varying points in 1994, after Kathleen Sweeney and Harry Schmoll "discovered" information about PCB saturation in the Right to Know files and a cluster of other cases began to emerge. It is undisputed that much of the information on which plaintiffs in this case rely — the information which Schmoll and Sweeney "discovered" in the Right to Know files — was available for any of the plaintiffs to see for many years, long before any of the plaintiffs filed the instant action. Until Schmoll and Sweeney looked at the files in late 1993, driven by their concern regarding the apparent cluster of cancer victims at BCC, none of these plaintiffs looked in those files. Monsanto argues, in part, that because these files were always available for the plaintiffs' perusal, a reasonable person using ordinary diligence would have had sufficient facts to know that their cause of action had accrued.
The mere existence of the information in the files, however, does not mean that a reasonable person using ordinary diligence would have sufficient knowledge to suspect that his or her cancer — which could come from so many causes or from no known cause — was attributable to the fire and exposure years earlier. Rather, the question is whether a reasonable person using ordinary diligence would have gone in search of those Right to Know files in the first place. See Martinez, 2000 WL 175278 at *7 ("Although Ms. Martinez could have read the 300 pages of medical reports, she had no reason to do so.").
Monsanto contends that given the plethora of news stories and memoranda from President Pierce concerning the presence and cleanup of PCBs in the Parker Center, each of the Cancer Plaintiffs would have — or at least reasonable persons in their situations should have — investigated the possible link to PCBs further upon being diagnosed with cancer. Undisputedly, many of the memoranda, news articles, and speakers at BCC discussed the presence of PCBs in the Parker Center, the fact that they were coming from the ceiling tiles, and possible health effects from PCB exposure.
Most of the plaintiffs testified at their depositions that they did not receive the memoranda, that they did not read the newspaper articles, and that they were otherwise not aware of the presence of PCBs and the effects thereof. These contentions are supported by the fact that none of these plaintiffs even mentioned PCBs to their doctors prior to 1994, which bespeaks the fact that whatever information was out there did not impress upon these plaintiffs that they were in any real danger. Indeed, despite arduous efforts by the defense, there is no evidence that any of these cancer plaintiffs mentioned any suspicion to anyone about the PCBs before 1994. This Court's ultimate conclusions regarding the application of the discovery rule to each plaintiff, however, are unaffected by the plaintiffs' protestations that they (or the decedents on whose behalf they have stated claims) did not read the newspaper articles or memoranda concerning the PCBs in the Parker Center.
Were this Court to rely on those contentions, this Court would be required to hold a hearing, taking testimony from each of the plaintiffs regarding their knowledge or that of the decedents on whose behalf they have sued, in order to make findings regarding credibility. Because this Court's ultimate conclusions are not based on plaintiffs' contentions regarding newspaper articles and memoranda, but rather on a finding that a reasonable person using ordinary diligence would not have necessarily investigated further even if they had read and recalled the various conflicting newspaper articles and memoranda years before, this Court need not make credibility determinations. This Court relies instead on the arguments briefed by the parties, affidavits, deposition testimony transcripts, and other evidence of record.
Even if this Court were to assume that each of the plaintiffs had read the newspaper, reviewed the memoranda, and attended the discussions regarding PCBs, this Court would need to determine if the information in those newspaper articles, memoranda, and discussions would have caused a reasonable person using ordinary diligence to inquire further upon learning that he or she had cancer. This Court finds that the information disseminated in these media, much of which downplayed the degree of exposure, the overall risks, or both, would not have necessarily caused a reasonable person using ordinary diligence to make the link between their previous possible exposure to PCBs and cancer — or at least to look in the Right to Know files.
It is true that the newspaper articles, memoranda, and speakers of the school discussed the presence of PCBs in the school and their possible health effects, including chloracne, skin lesions, birth defects, reproductive failure, harm to respiratory and digestive tracts, headaches, and impotence. Many of these media also called PCBs "suspected carcinogens" and noted that tests had shown low percentages of cancer in lab rats and mice exposed to PCBs. However, with the exception of one newspaper article, all of the articles and memoranda also contained additional information which would quell a reasonable person's urge to link PCBs and cancer.
Only one newspaper article contained different information: the March 29, 1987 article in the Asbury Park Press entitled "N.J. fire reveals major tilemaker used PCBs to fireproof ceiling tiles." (Di Muro Certif. Ex. 52.) This article noted that PCB levels in the Parker Center ranged from 100 to 750 parts per million, numbers far higher than any other article or memorandum had announced. Given that only one newspaper article (amidst the flurry of media attention on the subject of PCBs in the Parker Center) stated this information and that there is no evidence that any of the plaintiffs actually read this article, the Court finds that this one article is not enough to say that the plaintiffs knew or should have known to investigate further, given the overwhelming weight of the other evidence, discussed below. Further, the Asbury Park Press is a local newspaper in Monmouth County, while the fire occurred 30-40 miles away in Burlington County.
Many articles and memoranda noted that while the levels of PCBs found (at the time, the amount found was noted as approximately two to four parts per million) surpassed NIOSH limits, they were well under OSHA's limits of 500 parts per million; Dr. Liveright, in his presentation, explained that the NIOSH standard has a 500-fold safety factor built in, such that levels must go 500 times above the NIOSH standard to be of danger. Although the potential effects of PCB exposure were stated, staff, faculty, and students of BCC — as well as readership of the various newspapers — were also told, over and over again, that there was no immediate danger, that PCBs were being removed only because of environmental regulation, that no PCBs were detected at breathing heights in the air, and that the level of exposure was very, very low. Chloracne was emphasized much more than was cancer. Additionally, where health effects were mentioned, it was also noted that the discussed effects accompanied large-scale PCB exposure, as opposed to the low levels to which plaintiffs were exposed. Dr. Liveright told attendees of his discussion that the problem was "far more one of politics and finances than of health" and that the levels of PCBs at the college were not high enough for concern. (Id. at Ex. 56.) Finally, one article noted that although some heightened incidence of cancer was found in lab rats, "there is no conclusive evidence of harm to humans from PCBs other than severe acne . . ." (Id. at Ex. 46.)
Articles and memoranda discussed effects on "workers occupationally exposed to high levels of PCBs" (Di Muro Certif. Ex. 19), but they also said that levels were "extremely low . . . . many, many times below the present acceptable occupational standard" ( id . ), that the "likelihood of ingesting PCB particles is severely low" ( id . at Ex. 40), that "the college's clean environment thwarts the possibility for the dust to accumulate" ( id . ), and that PCBs were found at "levels not considered dangerous during short-term exposure" ( id . at Ex. 49).
Other than cancer, none of the Cancer Plaintiffs (or the decedents whom they represent) had any of the other health effects which the articles and memoranda stressed as being associated with PCBs at high levels of exposure, most noticeably chloracne. More importantly, given the barrage of statements that the level of exposure was very low and not a danger, reasonable persons in plaintiffs' situations would be forewarned to be vigilant for developing cancer as a result. See Martinez, 2000 WL 175278, at *7 (doctors' assurances that "they did all they could" to plaintiff whose ex-husband died "would tend to deflect an ordinary person's attention from the hospital's conduct). See also Abboud v. Viscomi, 111 N.J. 56, 65 (1988) (noting that dentist's oft-repeated statements that plaintiff's post-extraction pain was normal added to delay in plaintiff's discovery of permanent nerve damage); Lynch v. Rubacky, 85 N.J. 65, 74-76 (1981) (doctor's repeated statements that plaintiff's condition resulted from the normal "healing process" slowed plaintiff's discovery of doctor's fault).
Therefore, this Court finds that even assuming each of the individual plaintiffs (or the decedents they represent) had read the newspaper articles and memoranda and attended the lectures/discussions in 1985-1987, those articles, memoranda, and speeches would not cause a reasonable person using ordinary diligence to believe, with a degree of firmness impelling further investigation, that his or her injury was probably caused by the PCB exposure years earlier.
Until Schmoll and Sweeney looked at the Right to Know files in the end of 1993 and told others throughout 1994, no other information was disseminated that would cause a reasonable, ordinary person in plaintiffs' situations to inquire further, to go look at the Right to Know files. Schmoll and Sweeney went to look in late 1993 because, by that time, several of their colleagues had developed cancer. The beginnings of what seemed to them to be a "cluster" of cancer at the school is what caused them to become concerned, to think about what at the school could have caused cancer in several faculty members, and to look at the Right to Know files. Until 1994, there was nothing that should have caused reasonable persons — including plaintiffs — to look at those files.
Additionally, this Court notes that there is no prejudice to Monsanto in allowing plaintiffs the benefit of the discovery rule. Proofs have not been lost; indeed, five years into this case, discovery is complete, experts retained, the parties ready to go. As the New Jersey Supreme Court said in Mancuso, an alleged toxic tortfeasor cannot "demand psychological protection from `surprise' suits brought against him decades after the tortious act when, like so many asbestos manufacturers in the 1950's, he was or should have been aware that he was exposing to others a substance that would cause a statistically predictable incidence of latent disease." 2000 WL 175279 at *3.
The remaining question is whether each of these plaintiffs filed their personal injury actions within two years of discovering that they might have a basis to sue. A review of the facts upon the record of this case, delineated in this Opinion, indicates that each of the plaintiffs did file their causes of action for personal injuries, loss of consortium, or wrongful death within two years of discovering they might have a claim. Therefore, the motions filed by Monsanto, AWI, and AMSCO for summary judgment on the basis of the statute of limitations will be denied.
III. CONCLUSION
For the foregoing reasons, this Court will deny the motions filed by Monsanto, AWI, and AMSCO for summary judgment against plaintiffs Vincent Sollimo, Patricia Sollimo, Claire Correale, Estate of Lothar Maertin, Joan Maertin, Estate of Elizabeth Leedy, Harold Leedy, James Stewart, John Hopen, Robert Scully, Marcia Scully, Gabrielle Nappo, and Frank Nappo on the basis of the statute of limitations. Applying the discovery rule, each of these plaintiffs filed their claims for personal injuries, loss of consortium, or wrongful death within two years of discovering that they might have a basis for legal action. The accompanying Order is entered.
ORDER
This matter having come before the Court upon motions filed by Monsanto Company and Solutia, Inc. ("Monsanto") (docket entry 361-1), Armstrong World Industries ("AWI") (docket entry 364-1), and American Mineral Spirits ("AMSCO") (docket entry 363-1) for summary judgment on the basis of the statute of limitations on claims for personal injuries, loss of consortium, and wrongful death filed by or on behalf of Vincent Sollimo, Patricia Sollimo, Claire Correale, Lothar Maertin, Joan Maertin, Elizabeth Leedy, Harold Leedy, James Stewart, John Hopen, Robert Scully, Marcia Scully, Gabrielle Nappo, and Frank Nappo; and this Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this day of May 2000 hereby
ORDERED that the motions filed by Monsanto, AWI, and AMSCO (appearing on the docket as entries 361-1, 363-1, and 364-1) for summary judgment against plaintiffs Vincent Sollimo, Patricia Sollimo, Claire Correale, Estate of Lothar Maertin, Joan Maertin, Estate of Elizabeth Leedy, Harold Leedy, James Stewart, John Hopen, Robert Scully, Marcia Scully, Gabrielle Nappo, and Frank Nappo be, and hereby are, DENIED.
_________________________ Date
_________________________ JEROME B. SIMANDLE U.S. District Judge