Vispisiano v. Ashland Chemical Co.

527 A.2d 66, 107 N.J. 416, 1987 N.J. LEXIS 356
CourtSupreme Court of New Jersey
DecidedJune 29, 1987
StatusPublished
Cited by117 cases

This text of 527 A.2d 66 (Vispisiano v. Ashland Chemical Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vispisiano v. Ashland Chemical Co., 527 A.2d 66, 107 N.J. 416, 1987 N.J. LEXIS 356 (N.J. 1987).

Opinions

PER CURIAM.

The “discovery rule” is an equitable principle by which the accrual of a cause of action is delayed “until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he may have a basis for an actionable claim.” Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)). This appeal involves the application of the “discovery rule” to a toxic-tort case. Plaintiffs are John Vispisiano and his wife, Barbara. “Plaintiff” hereafter is intended to indicate John; Barbara Vispisiano will be referred to as plaintiff’s wife. (A [420]*420companion case of plaintiffs Gene Conlon and Nan Conlon, his wife, is not part of this appeal.)

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

I

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

The fact-sensitive nature of our inquiry requires a careful review of the evidence as disclosed at the so-called Lopez hearing, conducted in keeping with the procedures established in Lopez v. Swyer, supra, 62 N.J. 267 to determine if plaintiff’s cause of action accrued more than two years prior to the date on which he filed his complaint. The record of that hearing includes not only the testimony of plaintiff and his treating physician but also various medical records, excerpts from testi[421]*421mony in other proceedings and from depositions and answers to interrogatories, and part of a journal kept by plaintiff's wife.

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

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

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

On March 18, 1978, Vispisiano was rushed to the St. Peter’s Medical Center Emergency Room suffering from severe migraine headaches. There he underwent several tests and was [422]*422eventually admitted by Dr. Philip Thurston. As evidenced by the doctor’s report, plaintiff had previously suffered migraines:

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

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

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

It was not until February 16,1980, after plaintiff had consulted other RCHP physicians — the record is uninformative on the purpose of those visits — that plaintiff returned to Dr. Thurston. This appointment was prompted by plaintiff’s complaint of foot pain and swelling. Early testing for gout proved inconclusive.

Thereafter, some time between February 25 and March 4, 1980, Vispisiano visited Eugene Conlon, a former Chemical Control employee and friend, who was hospitalized at St. Pe[423]*423ter’s. During the visit plaintiff learned that Conlon was exhibiting symptoms similar to his own. Their discussion raised the possibility that those symptoms might have been caused by chemicals.

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Bluebook (online)
527 A.2d 66, 107 N.J. 416, 1987 N.J. LEXIS 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vispisiano-v-ashland-chemical-co-nj-1987.