Opinion
CIVIL ACTION NO. 95-2849 (JBS).
August 16, 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, ESQS., Newark, N.J. Attorney for Third-Party Defendant American Mineral Spirits Company.
Christopher M. DiMuro, Esquire, James E. Tyrrell, Jr., Esquire, LATHAM WATKINS, Newark, N.J., Attorneys for Third-Party Defendants Monsanto Company and Solutia, Inc.
O P I N I O N
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 contracted, or fear contracting, cancer as a result of that exposure. The plaintiffs filed negligence and strict liability claims against Armstrong World Industries ("Armstrong"), the company which manufactured the ceiling tiles coated with a plasticizer called Aroclor 1254 from which the plaintiffs allege the PCB exposure came. Armstrong filed a Third Party Complaint against American Mineral Spirits ("AMSCO"), a distributor of Aroclor 1254, and Monsanto Company ("Monsanto"), the manufacturer of Aroclor 1254.
In this Opinion, the Court rules upon Armstrong's motion for partial summary judgment as to plaintiffs' time-of-sale product- liability claims. Plaintiffs' original and amended complaints allege that Armstrong "did design, manufacture, assemble and/or otherwise distribute or cause to be distributed, the aforesaid ceiling tiles" and that the ceiling tiles "were not safe for their intended use in that they were improperly designed, contained no instructions for their proper use and no warnings about their improper use and were otherwise defective." (Plaintiffs' Ex. Z at 2-3.) Plaintiffs contend that these provisions of the complaint and amended complaints state three different time-of-sale product liability claims: for manufacturing defect, design defect, and failure to warn. Armstrong seeks summary judgment on each of these claims.
As an initial matter, this Court notes that because Armstrong limits the motion to time-of-sale claims, this Court will not address whether summary judgment would have been appropriate as to the post-sale duty to warn claims which plaintiffs have also brought. For the reasons that follow, this Court will grant partial summary judgment for Armstrong on plaintiffs' claims for manufacturing defect, and will deny summary judgment as to design defect and failure to warn.
I. Discussion
In order to establish a prima facie case of time-of-sale product liability, plaintiffs are required to demonstrate the existence, at the time the ceiling tiles were sold, of a manufacturing flaw, a design defect, or a failure to warn. Feldman v. Lederle Labs., 97 N.J. 429, 449 (1984). Armstrong contends that plaintiffs have not done so, both because plaintiffs have not alleged a manufacturing flaw and because they have not made a showing of the essential elements of their failure to warn and design defects claims. The Court agrees that plaintiffs have failed to allege a manufacturing defect claim; the facts alleged in the complaint and amended complaints, as well as the development of plaintiffs' arguments over the five year history of this case, do not support a manufacturing defect claim. Plaintiffs have, however, come forth with evidence from which a jury could hold Armstrong liable for failure to warn and design defect.
A. Manufacturing Defect
Armstrong maintains that plaintiffs have never asserted a manufacturing defect claim during the course of this litigation, and that this is a case about alleged design defect, not manufacturing defect, because plaintiffs allege that the product was defective not because the product deviated from manufacturing specifications, but rather because the product (which was manufactured the way Armstrong intended) had bad effects. See Cepeda v. Cumberland Engineering Co., 76 N.J. 152, 169 (1978), overruled on other grounds, Suter v. San Angelo Foundry Mach. Co., 81 N.J. 150 (1979).
Plaintiffs respond that they have alleged a manufacturing defect claim, for the original and amended complaints allege that Armstrong "did design, manufacture, assemble and/or otherwise distribute or cause to be distributed, the aforesaid ceiling tile," and further allege that the ceiling tiles "were not safe for their intended use in that they were improperly designed, contained no instructions for their proper use and no warnings about their improper use and were otherwise defective." Given that Armstrong has consistently argued that it had no duty to warn of the potential discharge of PCBs because it did not know that the PCBs could escape, plaintiffs contend, it should be inferred that Armstrong did not intend for the PCBs to leave the tile, and therefore this was a manufacturing defect, which is defined as consisting of a variance, latent or patent, from the manufacturer's intent. Cepeda, 76 N.J. at 169. If, plaintiffs argue, a jury were to determine that Armstrong did not intend for the toxic chemical to leave the tile, then the issue of a manufacturing defect arises.
Plaintiffs' complaint and amended complaints do not directly state a claim for manufacturing defect. They state, instead, that Armstrong designed, manufactured, and distributed the ceiling tiles and that those tiles were not safe because of improper design and lack of proper instructions and warnings. If the complaint and amended complaints allege manufacturing defect at all, that allegation would fall only in the more general statement that the ceiling tiles "were otherwise defective."
That provision, however, does not state a claim for manufacturing defect. Moreover, plaintiffs have fallen into the common trap of confusion over the difference between manufacturing and design defect claims. In Cepeda, the New Jersey Supreme Court explained the "careful distinction between ordinary manufacturing defects and defects of design. . . . [D]efects of the former type [are] where the product contains a variance, latent or patent, from the manufacturer's intent. . . . [In the] latter, . . . the product is made as intended, but is asserted to be dangerous in some way." Cepeda, 76 N.J. at 169 (citations omitted). The distinction is this: in the case of a design defect, the product is manufactured exactly as the manufacturer designed it but it still has dangerous consequences; in the case of a manufacturing defect, the dangerous consequences arise only because the product was not manufactured according to the manufacturer's design. See also Volkswagen of America Inc. v. Young, 321 A.2d 737 (Md.Ct.App. 1974).
Plaintiffs in this case do not allege that Armstrong designed a ceiling tile that would have prevented the PCBs in it from escaping but that the allegedly dangerous PCBs nevertheless escaped because of a flaw in the manufacturing process. There is no evidence, of course, that Armstrong actually intended for its customers to be exposed to PCBs, and thus it might be said in a general sense that Armstrong intended for PCBs to not escape from the ceiling tiles. In that sense, plaintiffs have alleged that the final product, from which PCBs allegedly did escape, varied from Armstrong's general intent for the tiles.
That is not the crux of plaintiffs' argument, however. Plaintiffs' argument, as laid out carefully in dozens of briefs throughout the history of this case, is that Armstrong designed a ceiling tile with a plasticizer that contained PCBs, that this PCB-containing plasticizer was used instead of other fire- retardant coatings because of its aesthetic qualities, and that PCBs vaporized from the ceiling tiles, contributing to the cancers of the plaintiffs and their decedents. Armstrong's design for the ceiling tiles specifically included PCBs. Plaintiffs do not allege that the ceiling tiles as designed would have been harmless but for a mistake in the manufacturing process; they allege instead the very design of including PCBs in the ceiling tiles was dangerous. That is a design defect claim, not a manufacturing defect claim. Discovery in this case has been concluded, and plaintiffs have come forward with no evidence of a manufacturing defect in Armstrong's product. Therefore, the Court will grant partial summary judgment in favor of Armstrong to the extent to which plaintiffs attempt to allege time-of-sale manufacturing defect.
B. Failure to Warn
Next, Armstrong argues that it is entitled to summary judgment with respect to claims of failure to warn at the time- of-sale. As Armstrong points out, it is firmly established in New Jersey that at the time-of-sale, a product manufacturer is only obligated to warn against those risks that were reasonably ascertainable at the time of sale.Feldman, 97 N.J. at 451-54. The plaintiffs bear the burden of coming forward with evidence that "knowledge of the defect existed within the relevant industry." Coffman v. Keene Corp. 133 N.J. 581, 599 (1993). If plaintiffs cannot show that knowledge of the defect existed in the relevant industry at the time of sale, then there was no time-of-sale duty to warn.
New Jersey also imposes a post-sale duty to warn in certain circumstances, based upon information that a manufacturer knew or should have known after the time of sale. Post-sale duty to warn claims are not at issue in this motion.
In order to show this, Armstrong contends, plaintiffs would have to identify experts to testify to the state of knowledge in the ceiling tile or building products manufacturing industries in 1970-71, and plaintiffs have not done so. Further, Armstrong argues, plaintiffs have not offered expert testimony that it was reasonably ascertainable at that time that Aroclor 1254 would escape the hardened plastisol coating in the ceilings. All plaintiffs' expert Dr. Ian Nesbit has said, Armstrong argues, is that Armstrong should have known that Aroclor 1254 could pose general health risks, not that Aroclor 1254 could escape from the ceiling tiles. Thus, there was no expert testimony that Armstrong could have known at the time of sale that plaintiffs would actually be exposed to Aroclor 1254. To the contrary, Armstrong contends, it itself has introduced expert testimony from Michael Scott that Armstrong could not have known at the time-of-sale that PCBs could escape from the ceiling tiles at ambient conditions. Thus, says Armstrong, there is thus no disputed issue of fact, and the products liability claims for failure to warn at time of sale should be dismissed.
In response, plaintiffs make three arguments. First, plaintiffs argue that in a failure to warn context, they need only prove that knowledge of the defect existed within the building products manufacturing industry (not that Armstrong itself was cognizant of the defect), such that customers of Aroclor 1254 using the product as a component part in paint, sealants, and coatings, could have knowledge of PCBs' ability to escape or migrate from its coating. Coffman, 133 N.J. at 599. Once plaintiffs show that, it would be Armstrong's burden to come forth with proof that it lacked actual or constructive knowledge of the defect because the information was not reasonably available. Feldman, 97 N.J. at 455-56.
As discussed in numerous other opinions in this case, including the Court's June 23, 2000 Opinion denying Armstrong's motion for partial summary judgment on plaintiffs' punitive damages claims, the record contains plenty of evidence from which factfinders could find that Armstrong knew that PCBs were potentially dangerous. Plaintiffs have put forth evidence that the industry knew or should have known that PCBs could escape, including the following:
The Court found that based on the totality of the evidence, a reasonable juror could find that Armstrong acted with culpable indifference to the risk of harm to the plaintiffs. (6/23/00 Opinion at 20-21.) This included evidence of both time- of-sale and post-sale information. Of course, for the instant motion, only time-of-sale information is relevant. The June 23rd Opinion describes such time-of-sale information, including that Armstrong learned over and over again of reported health and environmental concerns for PCBs (including that PCBs are considered carcinogenic), that Monsanto told Armstrong not to use PCBs in connection with food and water sources, and that Monsanto warned Armstrong of the effects of vaporization. ( See id . ) Although each of these facts is in dispute, the plaintiffs, as the parties opposing this summary judgment motion, are entitled to the reasonable inference that these facts are true.
• The Interdepartmental Task Force of the EPA put out a report in May of 1972 entitled "Polychlorinated Biphenyls and the Environment," which indicated that "vaporization from paints, coatings, plastics, etc. [Nisbet and Sarofim, 3] estimate that as much as 20% may be vaporized." (Plaintiffs' Ex. M.) The report also cited various industrial "accidents" where PCB's escaped into the environment and into food through PCBs in coatings in silos. The report also noted high levels of PCBs in house dust, meaning it was probably inhaled.
• Ian Nisbet, Ph.D., an environmental scientist renowned for his work with PCBs, concluded that in his professional opinion, "Armstrong had sufficient information by June 16, 1970, to recognize that continued use of Aroclor 1254 in its product intended for indoor use could pose health risks and that these risks would be expanded by increasing Armstrong's stockpile to maintain production for a longer period. Subsequently, abundant information was available to Armstrong to make it clear that the continued presence of the product in indoor environments would lead to continued exposure of people living or working in these environments to PCBs, and consequently could cause serious harm." (Plaintiffs' Ex. N.) He specifically mentioned numerous PCB-escape incidents well known in the scientific community at the time, including PCBs escaping from carbonless copy paper known in 1970, and PCBs escaping through the solid material of marine paint, escape from paints and sealants in grain silos because the PCBs leach out of the paints or sealants. He explained how PCBs vaporized from the sealant or paint, and noted that all of this was known prior to June of 1970. (Id.)
The record contains evidence from which a reasonable finder of fact could find that Armstrong knew that it was using a product which contained PCBs, which the industry knew or should have known was dangerous, and that Armstrong turned a blind eye to available evidence that their product was exposing people to PCBs. Armstrong's motion for partial summary judgment on the time-of-sale failure to warn claims will be denied.
C. Design Defect
Finally, Armstrong asks for summary judgment with respect to design defect claims because plaintiffs have not come forward with competent evidence "either that the product's risk outweighed its utility or that the product could have been designed in an alternative manner so as to minimize or eliminate the risk of harm," Lewis v. American Cyanamid Co., 155 N.J. 544, 570 (1998), and plaintiffs have not come forward with expert testimony regarding the design of the tiles or to show that another product design was available, or that the conduct was unreasonable. According to Armstrong, expert testimony is "crucial,"Finley v. NCR Corp., 964 F. Supp. 882, 884 (D.N.J. 1996); H.T. Rose Enters., Inc. v. Henny Penny Corp., 317 N.J. Super. 477, 494 (App. Div.), certif. denied, 158 N.J. 74 (1999) (affirming judgment as a matter of law where plaintiff failed to offer expert testimony regarding safer alternative design). Court have summarily dismissed design defect claims when plaintiff has failed to offer expert testimony of design defect.Ridenour v. Bat Em Out, 309 N.J. Super. 634 (App.Div. 1998) ("absent an expert's support, we agree that summary judgment was properly awarded to Rowe on the issue of . . . design defect"); Macri v. Ames McDonough Co., 211 N.J. Super. 636, 641 (App.Div. 1986) (since plaintiff's expert failed to establish that "the risks posed by the hammer outweighed its utility . . . there was no issue of design defect for the jury to determine").
Here, Armstrong contends, while plaintiffs' experts have contended that the design was generally defective, none proposed an alternative design for the ceiling tiles. Armstrong further contends that plaintiffs' failure to come forward with proof of an alternative design is dispositive of a design-defect claim, for the Appellate Division has explained that New Jersey's design-defect law "can be summarized as merely imposing the duty upon plaintiff to prove [an alternative design,]" because the existence of a design defect is determined by "whether the proposed design was reasonable." Fiorino v. Sears Roebuck Co., 309 N.J. Super. 556, 565 n. 3 (App.Div. 1998). The plaintiffs must prove that the proposed alternative design is "reasonable," meaning both practical (commercially viable at the time of sale in light of all relevant circumstances) and feasible (technically possible) according to the state of knowledge in the industry at the time, Lewis, 155 N.J. at 568, in addition to satisfying the product's performance requirements.Fiorino, 309 N.J. Super. at 563. Armstrong contends that the plaintiffs have not come forward with expert testimony to this regard, and that they cannot rely on Armstrong's later-reformulated plastisol as evidence of "alternative design" because plaintiffs have not put forth expert testimony that the new formula was feasible, practical, and met performance requirements at the time of sale.
Additionally, Armstrong argues, without expert testimony, plaintiffs cannot show that Armstrong acted unreasonably in designing and marketing the product, because that is determined by comparing the actual design with other possible alternative designs, and expert testimony is required for this. Fiorino, 309 N.J. Super. at 564-65.
In response, plaintiffs contend that while expert testimony may help, New Jersey's Products Liability Act 2A:58(c)(3), et seq., and case law do not impose an absolute requirement of such testimony. Design defect is defined as a danger inherent in a product which has been manufactured as intended when that danger, as public policy matter, is greater than can be justified by the product's utility. Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. at 173. Plaintiffs submit it is enough that they have put forth evidence that these tiles, covered with a coating containing PCBs, were not capable of containing the only industrial chemical banned by an Act of Congress (the Toxic Substances Control Act), when the occupants of the building were unknowingly exposed to it over a long period of time, especially in light of the fact that there is evidence that the function of that particular PCB was only to enhance the look or design of the tile and that a multitude of other flame retardant plasticizers were available. Thus, plaintiffs contend that the design defect is self-evident. Engaging in classic risk/utility analysis, seeGrier v. Cochran Western Corp., 308 N.J. Super. 308, 232 (App.Div. 199 8), there is evidence that the PCBs in the tile were useful for aesthetics and fire retardancy, but that other products were also available, and in fact were actually used, for fire retardancy, so Armstrong could have removed the PCBs and still had a fire retardant tile, instead of exposing the unsuspecting BCC employees, who could not avoid the danger, to dangerous PCBs.
As explained in this Court's earlier Opinions, Armstrong employee Thomas Greenwalt testified that the reason that Aroclor 1254 was chosen instead of non-PCB containing plasticizers, was because it enhanced the embossed effect of the tiles.
As this Court has previously explained in other Opinions, there is evidence in the record that: Armstrong was the only ceiling tile manufacturer, among thirteen others, to use PCBs in a coating formulation; Armstrong made similar tiles before and after without PCBs; both Monsanto employees and Armstrong employees acknowledged that phosphate plasticizers were utilized, available, and performed as well as, or better than, the Aroclor 1254 containing plasticizer; and Armstrong developed a non-PCB containing coating formulation by December 14, 1970, nine months prior to the first exposure at BCC.
This Court agrees with plaintiffs that while Armstrong is entitled to rebut the claim with evidence that there was no technically feasible alternative design, ultimately it is a jury question. Lewis, 294 N.J. Super. at 70. Likewise, the reasonableness of Armstrong's design is a jury question. In the usual case, expert testimony will be needed to prove that an adequate alternative design was available. However, "[e]xpert testimony is only required to support a claim when the subject matter is so esoteric that jurors of common judgment and experience are unable to make a determination without the benefit of the information and opinions possessed by as person with specialized knowledge. . . . [W]here a plaintiff alleges that there is a defect in a product, he is `not necessarily confined to the explanation his expert may advance.'" Macri, 211 N.J. Super. at 642-43 (citations omitted). In Ventura v. Ford Motor Corp., 180 N.J. Super. 45 (App.Div. 1981), the Appellate Division rejected a contention by Ford that plaintiff failed to establish "that a defective mechanism for which Ford was responsible caused the engine to hesitate and stall" just because the plaintiff lacked expert proof of that contention. Id. at 53. "This conclusion," the court wrote, "could be reached by inferences from the evidence." Id. at 54.
Likewise here, no expert testimony by plaintiff is required to introduce evidence of alternative designs of fire retardant ceiling tile not using PCBs. In the usual case, expert testimony might be necessary because the record lacks any other evidence from which jurors could determine what alternative designs were possible. Here, on the other hand, the record is replete with evidence from which a jury could determine that an alternative design was available at the time of sale, including evidence that a Monsanto employee suggested to Armstrong that phosphate plasticizers were available and performed as well as, if not better than, PCB-containing plasticizers. The Court recognizes that any "alternative design" must be shown to be able to meet the performance requirements of the product at the time of sale. Armstrong contends that its performance requirements were related to fire retardancy, and there is evidence in the record from which a juror could reasonably determine, without help from an expert witness, that other products were available at the time that could make the tiles fire retardant.
Plaintiffs have contended in this case that the reason why Armstrong chose this particular plasticizer over phosphate- containing plasticizers was because of the aesthetic effects of Aroclor 1254: the PCBs enhanced the embossed look of the tile. Armstrong has denied this argument, focusing on its reasoning that Aroclor 1254 was the only product that could meet its fire retardant-performance requirements at the time. The Court thus assumes that Armstrong will not attempt to argue that no alternative design was possible because plasticizers which did not include Aroclor 1254 could not meet Aroclor's ability to enhance the aesthetic effect of the tile. Even if Armstrong did attempt such an argument, it would fail, for aesthetic effect is not a "performance" requirement as such and because under "risk utility" analysis, the risk of danger from PCBs (if plaintiffs prove that PCBs cause harm to humans) could not outweigh a manufacturer's desire to make it's product pretty.
As there is a genuine dispute of material fact as to whether Armstrong's design was dangerous and whether Armstrong could have designed a safer product at the time, this Court will deny Armstrong's motion for partial summary judgment on plaintiffs' time-of-sale design defect claims.
II. Conclusion
For the foregoing reasons, this Court will grant partial summary judgment for Armstrong on plaintiffs' claims for manufacturing defect, and will deny summary judgment as to design defect and failure to warn. The accompanying Order is entered.
ORDER
This matter having come before the Court upon a motion filed by defendant Armstrong World Industries, Inc. ("Armstrong") for partial summary judgment on plaintiffs' time-of-sale product liability claims [appearing on the docket as entry 333-1]; and the Court having considered the parties' submissions; and for reasons expressed in an Opinion of today's date;
IT IS this day of August 2000 hereby
ORDERED that Armstrong's motion for partial summary judgment on plaintiffs' time-of-sale product liability claims [appearing on the docket as entry 333-1] be, and hereby is, GRANTED IN PART AND DENIED IN PART, as follows: partial summary judgment is GRANTED in favor of Armstrong on plaintiffs' time-of-sale manufacturing defect claims, and partial summary judgment for Armstrong is DENIED as to plaintiffs' time-of-sale failure to warn and design defect claims.
_________________________ Date
_________________________ JEROME B. SIMANDLE U.S. District Judge