|||New Jersey Superior Court, Appellate Division
|||573 A.2d 196, 240 N.J.Super. 289, 1990.NJ.
|||Decided: April 20, 1990.
|||MARY ANN VUOCOLO, AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE
OF LUCY VUOCOLO, PLAINTIFF-APPELLANT,
DIAMOND SHAMROCK CHEMICALS COMPANY, DEFENDANT-RESPONDENT, AND CHEMICALAND CORP., DEFENDANT
|||On appeal from the Superior Court of New Jersey, Law Division, Essex
|||Fredric J. Gross argued the cause for appellant Mary Ann Vuocolo.
|||George W. C. McCarter argued the cause for respondent Diamond Shamrock
Chemicals Company (McCarter and English, attorneys; George W. C. McCarter,
on the brief).
|||Michels, Deighan and Brochin. The opinion of the court was delivered
by Michels, P.J.A.D.
|||[240 NJSuper Page 290] Plaintiff
Mary Ann Vuocolo, as Administratrix ad prosequendum for the estate of Lucy
Vuocolo, appeals from a summary judgment of the Law Division entered in
favor of defendant Diamond Shamrock Chemicals Company in this personal
injury toxic tort case brought pursuant to N.J.S.A. 2A:15-3. Plaintiff,
on behalf of the estate of her mother, Lucy Vuocolo (decedent),
|[240 NJSuper Page
|sought to recover damages for pain and suffering
which occurred during her mother's lifetime as a result of contracting
pancreatic cancer. She alleged that dioxin, a toxic substance which defendant
released into the environment, substantially increased decedent's risk
of contracting cancer. The trial court, on cross-motions for summary judgment,
held that plaintiff had failed to establish her claim and dismissed the
|||In 1955, defendant's predecessor, Diamond Alkali, put into operation
a chemical plant at 80 Lister Avenue in the Ironbound section of Newark.
In 1960, an explosion at the Lister Avenue plant released a large amount
of dioxin, a dangerous by-product of the chemical process, into the environment.
An additional amount of dioxin was dispersed some time later when the building
was destroyed and removed from the site. Although the explosion occurred
in 1960, it was not until 1983 that the explosion and the dioxin release
became public knowledge. Thereafter, the New Jersey Department of Environmental
Protection (DEP) conducted tests in the area surrounding the Lister Avenue
plant. On September 16, 1985, the DEP took soil samples from decedent's
property and tested them for dioxin. By letter dated November 22, 1985,
the DEP informed plaintiff that only harmless trace amounts of dioxin were
discovered in the samples and that remedial action was not necessary. The
DEP also determined that there were no harmful concentrations of dioxin
in the other homes it sampled. Nonetheless, it conducted a street sweeping
operation to rid the area of any contaminated dirt and dust.
|||In 1971, more than 10 years after the explosion, decedent moved into
a home at 60 Joseph Street, which is located less than two blocks from
defendant's Lister Avenue plant. Decedent was active in the neighborhood
and was frequently outside working or walking. Sometime after moving to
|[240 NJSuper Page
|decedent was diagnosed as having pancreatic cancer
from which she died on January 23, 1981.
|||In 1985, plaintiff instituted this action on behalf of her mother's
estate against defendant. Although plaintiff was unable to quantify decedent's
ingestion of dioxin or even establish that she in fact ingested any amount
of dioxin or was even exposed to dioxin, plaintiff claimed, based on principles
discussed in Evers v. Dollinger, 95 N.J. 399,471
A.2d 405 (1984) and Hake v. Manchester Township, 98
N.J. 302,486 A.2d 836 (1985), that it was
unnecessary to show causation in the traditional sense as long as she could
establish that defendant put decedent at risk and decedent was ultimately
injured. In support of plaintiff's claim, Dr. Deborah Barsotti, a pathologist,
submitted a report in which she concluded:
|||[It] is my opinion that Mrs. Vuocolo was exposed to TCDD in sufficient
quantities to develop clinical toxicity as demonstrated by chloracne. Furthermore,
Diamond Alkali's accident that released TCDD into the surrounding area
is responsible for the preponderance of TCDD to which Mrs. Vuocolo was
exposed. Subsequently, Mrs. Vuocolo died of adenocarcinoma of the pancreas.
Due to the rare nature of the cancer and the male preponderance, it is
my opinion that Mrs. Vuocolo's exposure to TCDD substantially increased
her risk of developing adenocarcinoma and may have caused or promoted this
|||Defendant conceded that it released dioxin into the atmosphere and
that decedent died from pancreatic cancer. However, defendant denied responsibility
for decedent's death and maintained that plaintiff was not entitled to
recovery as she did not establish a causal link between decedent's cancer
and the dioxin release. Judge Thompson in the Law Division denied cross-motions
for summary judgment to enable plaintiff to complete discovery, but indicated
that he would grant summary judgment if the proofs remained the same. The
judge, in part, reasoned:
|||It is fundamental that a plaintiff's burden of proof includes a showing
that she has suffered an injury proximately caused by defendants' acts
or omissions. Germann v. Matris [Matriss], 55 N.J. 193,
205 [260 A.2d 825] (1970). Similarly, plaintiff must
present proof to a reasonable degree of medical probability that she has
suffered an injury proximately caused by defendant. Johnesee v. Stop and
Shop Co., 174 N.J. Super. 426, 431 [416
A.2d 956] (App.Div.1980).
|[240 NJSuper Page
|In response to defendants' motion, plaintiff contends
that her answer to interrogatories and the unsigned report of Dr. Deborah
Barsotti, Ph.D. establish solid factual foundations for each element plaintiff
must prove and therefore defeat defendants' claim for summary judgment.
Dr. Barsotti concludes that Mrs. Vuocolo exposure to dioxin "substantially
increased her risk of developing adenocarcinoma and may have caused or
promoted this disease."
|||It is well established that when a moving party demonstrates a right
to summary judgment, the opponent of the motion must show by competent
evidential material that a genuine issue of material fact exists. James
Talcott Inc. v. Shulman, 82 N.J. Super. 438,
443 [198 A.2d 98] (App.Div.1964). Dr. Barsotti's report
falls short of that which is necessary to satisfy a plaintiff's burden
of proof in this type of litigation.
|||The burden of proof rests upon a plaintiff to prove causal relationship
by a preponderance of the evidence. Proof of "possibility" is not enough.
Such proof must be "probability." Evers v. Dollinger, 95
N.J. 399 [471 A.2d 405] (1984) and Hake
v. Manchester Township, 98 N.J. 302 [486
A.2d 836] (1985) have not reversed the basics of the law. However,
unless plaintiff has completed discovery, summary judgment can not be granted.
See Salomon v. Eli Lilly & Co., 98 N.J. 58
[484 A.2d 320] (1984). If discovery is completed at
a future date and the proofs remain in this posture, then at that time
it would be appropriate to grant the motion.
|||After discovery was completed, defendant and plaintiff renewed their
motions for summary judgment. Since plaintiff failed to proffer any additional
evidence as to a causal relationship between the release of the dioxin
and decedent's death from cancer in 1981, the trial court granted defendant's
motion for summary judgment and dismissed this action with prejudice. This
|||Plaintiff contends that the trial court erred in granting summary judgment
in favor of defendant and in denying her cross-motion for summary judgment.
She seeks a reversal of the judgment in favor of defendant, the entry of
judgment in her favor and a remand of the matter to the trial court for
a determination of damages. According to plaintiff, legal causation is
established where a defendant "substantially increases" the risk of disease
or death and the disease or death becomes a reality. We disagree and affirm
the summary judgment in favor of defendant.
|[240 NJSuper Page
|||It is fundamental that in order to visit tort liability upon a defendant
a "plaintiff must prove tortious conduct, injury and proximate cause."
Ayers v. Jackson Township, 106 N.J. 557, 585, 525
A.2d 287 (1987); see Prosser and Keeton on the Law of Torts
§ 30 at 164-165 (5th ed. 1984). "Proximate cause" has been defined
as "any cause which in the natural and continuous sequence, unbroken by
an efficient intervening cause, produces the result complained of and without
which the result would not have occurred." Fernandez v. Baruch, 96
N.J. Super. 125, 140, 232 A.2d 661
(App.Div.1967), rev'd on other grounds, 52 N.J. 127,244
A.2d 109 (1968) (Emphasis supplied). Thus, a plaintiff must
show that a defendant's conduct constituted a cause in fact of a decedent's
disease and subsequent death because an act or omission is not regarded
as a cause of an event if the event would have occurred without such act
or omission. Kulas v. Pub. Serv. Elec. & Gas Co., 41
N.J. 311, 317, 196 A.2d 769 (1964);
Battista v. Olson, 213 N.J. Super. 137, 148-149, 516
A.2d 1117 (App.Div.1986); Henderson v. Morristown Memorial Hosp., 198
N.J. Super. 418, 428-429, 487 A.2d 742
(App.Div.), certif. den., 101 N.J. 250, 501 A.2d 922 (1985). See also Prosser
& Keeton on the Law of Torts, supra, § 41 at 265. This rule has
been tempered by decisions holding that, even if damage would have occurred
in the absence of a defendant's negligence, liability may be imposed upon
a showing that the negligent conduct was a substantial factor in causing
the harm alleged. State v. Jersey Cent. Power & Light Co., 69
N.J. 102, 110, 351 A.2d 337 (1976);
Henderson v. Morristown Memorial Hosp., supra, 198 N.J.
Super. at 429,487 A.2d 742. This "substantial
factor" exception to the general rule of proximate causation rests largely
on the acceptance of the following tort principles:
|||[An] actor's negligent conduct is a legal cause of harm to another
if (a) his conduct is a substantial factor in bringing about the harm.
. . . [ Restatement, Torts 2d, § 431 at 428 (1965)].
|||(2) If two forces are actively operating one because of the actor's
negligence, the other not because of any misconduct on his part, and each
of itself is sufficient to bring about harm to another, the actor's negligence
may be found to be a substantial factor in bringing it about. [ Restatement,
Torts 2d, supra, § 432 at 430 (Emphasis supplied)].
|||These principles have been utilized broadly to justify a relaxation
of a plaintiff's burden of proof in certain situations. Thus, in medical
malpractice cases, because of complicated proof problems, our courts have
adopted the "lost chance" doctrine or applied the "substantial factor"
exception to reduce a plaintiff's burden of proof as to causation. For
example, in Evers v. Dollinger, supra, plaintiff sued her physician alleging
that the delay in treatment caused by his failure to diagnose properly
her breast cancer enhanced the risk that the cancer would recur. Because
plaintiff's cancer did recur during the proceedings, the Supreme Court
did not consider or decide whether "the unquantified (and unquantifiable)
but nevertheless certain increase in the risk, standing alone, is sufficient
injury to sustain plaintiff's cause of action." Evers v. Dollinger, supra, 95
N.J. at 406,471 A.2d 405. However, relying
largely upon Pennsylvania law, the Court held "that when there is evidence
that a defendant's negligent act or omission [increases] the risk of harm
. . . and . . . the harm [is] sustained, 'it becomes a question for the
jury as to whether or not that increased risk was a substantial factor
in producing the harm.'" Id. at 414-415, 471 A.2d 405
(citing Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286 (1978)).
Agreeing with Hamil, the Court distinguished "the more routine tort case,
in which the law requires proof that the result complained of probably
would not have occurred 'but for' the negligent conduct of the defendant,"
id. 95 N.J. at 415,471 A.2d 405,
from the medical malpractice case at issue by noting that in the latter,
the physician is "charged with having failed in a duty to protect against
harm from another source. . . ." Id. Accordingly,
|[240 NJSuper Page
|the Court held that the physician could be held
liable if it were established
|||within a reasonable degree of medical probability, that the seven months
delay resulting from defendant's failure to have made an accurate diagnosis
and to have rendered proper treatment increased the risk of recurrence
or of distant spread of plaintiff's cancer, and that such increased risk
was a substantial factor in producing the condition from which plaintiff
currently suffers. [ Id. at 417, 471 A.2d 405].
|||In Hake v. Manchester Township, supra, which was decided a year after
Evers, the Supreme Court removed the lost chance doctrine from the exclusive
realm of medical malpractice cases and applied it to a wrongful death action.
There, plaintiffs sued Manchester Township and several of its police officers
claiming that the defendants' failure to render prompt emergency care to
their son, when the police discovered him unconscious in his jail cell,
deprived him of a chance to be revived. Although holding that plaintiffs
had a viable claim, the Court limited the applicability of the doctrine
to cases where there exists a duty to save a life and there is a substantial
possibility of rescue and stressed that the doctrine applies only to a
"narrow class of cases of lost chance of survival. . . ." Hake v. Manchester
Township, supra, 98 N.J. at 311,486
A.2d 836. Thus, the Court held "that in establishing causation
it suffices for plaintiffs to show that defendants' negligent conduct negated
a substantial possibility that prompt rescue efforts would have been successful,
thereby constituting a substantial factor in causing decedent's death."
Id. at 306, 486 A.2d 836.
|||In Ayers v. Jackson Township, supra, which concerned a toxic tort suit
under the Tort Claims Act, the Supreme Court "[declined] to recognize [a]
cause of action for the unquantified enhanced risk of disease. . . ." Ayers
v. Jackson Township, supra, 106 N.J. at 598, 525 A.2d 287.
(Emphasis in original). Although the Court recognized the extreme difficulties
facing toxic tort plaintiffs, it did not "decide whether a claim based
on enhanced risk of disease that is supported by testimony demonstrating
that the onset of the disease is reasonably probable could be maintained
under the Tort Claims Act." Id. at
|[240 NJSuper Page
|599, 525 A.2d 287. (Citation
omitted). The Court demonstrated its reluctancy to increase the applicability
of this doctrine by noting "that the recognition of an enhanced risk' cause
of action, particularly when the risk is unquantified, would generate substantial
litigation that would be difficult to manage and resolve." Id. at 597, 525
|||The Supreme Court recently revisited these issues in Mauro v. Raymark
Indus., Inc., 116 N.J. 126,561 A.2d
257 (1989). There, plaintiff, a state employee, was exposed
to materials containing asbestos during the course of his employment. In
1981, he was examined by a state-employed physician. Although the results
of the tests performed were "normal," the report stated: "[Your] exposure
to asbestos has been significant and there is some evidence that this exposure
may increase the risk of development of lung cancer." Mauro v. Raymark
Indus., Inc., supra, 116 N.J. at 129,561
A.2d 257. Plaintiff instituted suit against several manufacturers
of asbestos products based on injuries allegedly sustained as a result
of his exposure to asbestos. At trial, "plaintiff's expert testified that
there was a high probability' that plaintiff had an increased risk of contracting
cancer during his lifetime. The expert was unable to testify that it was
probable that plaintiff would contract cancer. . . ." Id. at 128, 561
A.2d 257. (Emphasis in original). As a result, the trial court
refused to allow plaintiff's claim for enhanced risk of developing cancer
to go to the jury. We affirmed the judgment. Mauro v. Owens-Corning Fiberglass
Corp., 225 N.J. Super. 196,542 A.2d
16 (App.Div.1988). We refused to recognize plaintiff's claim
for enhanced risk of cancer because plaintiff's expert "was unable to quantify
plaintiff's enhanced risk of cancer and to predict, within a degree of
reasonable probability that plaintiff will develop cancer. . . ." Mauro
v. Owens-Corning Fiberglass Corp., supra, 225 N.J. Super.
at 205,542 A.2d 16.
|||Although the Mauro Court recognized the existence of claims based on
enhanced risk of disease, it held specifically that damages are only recoverable
in those cases where there is
|[240 NJSuper Page
|evidence establishing the future occurrence of
disease as a reasonable medical probability. As the Court explained, a
claim for damages predicated upon enhanced risk of disease is
|||conceptually analogous to the claim of a personal-injury plaintiff
with a damaged knee to recover damages for the prospective onset of an
arthritic condition that may result from the knee injury. See Jackson v.
Johns-Manville Sales Corp., 781 F.2d 394, 412 (5th Cir.) (describing General
Motors Acceptance Corp. v. Layton, 353 So.2d 749 (Miss.1977) -- where plaintiff
with bruised knee recovered damages for prospective arthritis -- as "indistinguishable"
from asbestos plaintiffs' claim for prospective cancer), cert. denied,
478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986). Under our case
law, the personal-injury plaintiff conceivably could claim medical-surveillance
damages and emotional-distress damages on the basis that the knee injury
might cause arthritis, but could not recover damages for the prospective
arthritic condition -- the "enhanced risk" of arthritis -- unless its occurrence
was established as a matter of reasonable medical probability. Coll v.
Sherry, supra, 29 N.J.  at 174-75 [148
A.2d 481 (1959)]. Thus, the fact that Mauro's claims for medical
surveillance and emotional distress, attributable to his enhanced risk
of cancer, were submitted to the jury does not exhaust his claim for damages
based on the prospective occurrence of cancer -- the "enhanced risk" of
cancer. Accord Herber v. Johns-Manville Corp., supra, 785
F.2d  at 82 [(3rd Cir.1986)]. The question before us is
whether that component of the claim should have been submitted to the jury
in the absence of evidence establishing the future occurrence of cancer
as a reasonable medical probability. We hold that the prospective-cancer
component of plaintiff's enhanced-risk claim was properly withheld from
the jury. [ Mauro v. Raymark Indus., Inc., supra, 116 N.J.
at 138-139,561 A.2d 257].
|||Applying these principles here, we are satisfied that the trial court
properly dismissed plaintiff's claim. First, this is not a lost chance
case. Although defendant released dioxin into the environment and decedent
died of pancreatic cancer, there is no proof of a neglected duty on the
part of defendant to save decedent's life as was required by Evers, supra,
and Hake, supra. Likewise, plaintiff's expert could not quantify decedent's
enhanced risk of cancer nor state to a reasonable medical probability that
the release of dioxin caused decedent's cancer and death. The fact that
decedent actually contracted cancer and died of the disease is irrelevant.
In order to hold a defendant liable under the principle of enhanced risk
(regardless of whether the disease actually manifests itself) plaintiff
must demonstrate to a reasonable medical probability that
|[240 NJSuper Page
|defendant's activities substantially increased
the risk of disease. Plaintiff has not done this notwithstanding the trial
court's affording her ample opportunity to conduct further discovery and
present the necessary proofs. Quite simply, the matter is more akin to
a traditional personal injury tort case. Because plaintiff has not and
apparently cannot establish a causal link between defendant's conduct and
decedent's disease and ultimate death, she is not entitled to recover against
|||Beyond the fact that plaintiff's expert, Dr. Barsotti, could not testify
to a reasonable medical probability that defendant had substantially increased
decedent's risk of contracting cancer, her report is a net opinion, which
does not provide a proper medical foundation to support plaintiff's claim.
Historically, courts have refused to admit expert medical testimony based
on mere speculation or possibility, unsupported by the evidence. As one
commentator has noted:
|||It seems universally agreed that an expert medical opinion as to the
cause of death, disease, or other physical condition is inadmissible if
it is solely an unsupported conclusion of the witness, since however well
qualified the witness is, and however scientific or abstruse the subject
matter is, an opinion must have reference to the material facts of the
case as reflected by the evidence. [Annotation, "Opinion Evidence -- Disease
or Injury," 66 A.L.R.2d 1082, 1086 (1959)].
|||See Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236,
241 (1979) (holding "[expert] testimony should not be received if it appears
the witness is not in possession of such facts as will enable him to express
a reasonably accurate conclusion as distinguished from a mere guess or
conjecture. The witness should not be allowed to express an opinion on
an inadequate basis. . . ."). Put in different terms:
|||Expert medical opinion evidence as to causation between an event and
death, disease, or a physical condition is inadmissible if it would amount
to the expression of a pure conclusion, without reference to factual causative
antecedents incorporated in questioning or unsupported by evidence in the
record, inasmuch as admission would amount to an invasion of the fact-finding
|[240 NJSuper Page
|of the jury. [Annotation, "Opinion Evidence --
Disease or Injury," 66 A.L.R.2d, supra, at 1116-1117].
|||New Jersey has followed the majority rule and has declined to admit
expert opinion without a proper factual foundation. In Gribbin v. Fox, 130
N.J.L. 357,32 A.2d 853 (Sup.Ct.1943) aff'd, 131
N.J.L. 187,35 A.2d 719 (E. & A.1944),
the former New Jersey Supreme Court excluded the testimony of an expert
witness who was unable to state definitely the cause of the plaintiff's
blood deficiency. The court held that the "evidence was improperly admitted
in that all that it did was to establish a possible cause for the condition
and it failed to negative other possible causes." Gribbin v. Fox, supra, 130
N.J.L. at 359,32 A.2d 853.
|||This prohibition against speculative expert opinion has been labeled
by modern courts as the "net opinion rule." Under this doctrine, expert
testimony is excluded if it is based merely on unfounded speculation and
unqualified possibilities. In Johnesee v. Stop & Shop Cos., 174
N.J. Super. 426, 431, 416 A.2d 956
(App.Div.1980), we held that "medical-opinion testimony must be couched
in terms of reasonable medical certainty or probability; opinions as to
possibility are inadmissible." Courts considering the issue since the Johnesee
case have agreed that expert opinion, unsubstantiated by medical certainties
or probability, is inadmissible. See State v. Freeman, 223
N.J. Super. 92, 116, 538 A.2d 371
(App.Div.1988). See also State v. Smith, 210 N.J. Super.
43, 57, 509 A.2d 206 (App.Div.), certif.
den., 105 N.J. 582, 523 A.2d 210 (1986); Schrantz v. Luancing, 218
N.J. Super. 434, 439, 527 A.2d 967
|||Analyzed in this light, plaintiff's expert opinion is nothing more
than mere speculation and possibility. Dr. Barsotti's opinion is not even
phrased in terms of reasonable medical certainty or probability and as
such, is not admissible to substantiate plaintiff's claim or save plaintiff's
case from summary judgment. Moreover, although Dr. Barsotti's report is
lengthy, it is very generalized and focuses much more on the nature and
history of dioxin rather than upon the 1960 explosion and its
|||In short, we are unpersuaded that subjecting the Ordinance to the power
of referendum granted by N.J.S.A. 40:69A-185 would violate any implied
legislative intent. We accordingly reverse the judgment and remand the
matter to the Law Division for the entry of judgment directing the City
Clerk to process plaintiffs' petition as provided by law.