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Mass Tort Update
Harris v. Peridot Chemical (New Jersey), Inc.
July 19, 1996
RESULT: A jury awarded Ella McAdams-Smith $ 1,400,000 and the jury awarded Fred Harris $ 395,000. With prejudgement interest, the total award was $ 2,071,840.33.
STATE: New Jersey
SUMMARY: In this toxic tort action, it was charged that plaintiffs, Ella McAdams-Smith and Fred Harris, sustained personal injuries as the result of their exposure to a combination of sulfur dioxide (SO2) and hydrogen sulfide (H2S) which was negligently emitted in an airborne release from a chemical facility, defendant Peridot Chemical - New Jersey, Inc., neighboring their place of employment, Hoechst-Celanese, in Newark, New Jersey.
Peridot Chemical and Hoechst-Celanese operated adjoining chemical facilities on Doremus Avenue; Peridot Chemical operated an MgO regeneration plant just north of the fence line which runs along the northernmost boundary of the Hoechst-Celanese "East Farm" where plaintiffs were working at the time of their exposures.
The first incident occurred on September 9, 1991. Ella McAdams-Smith, a chemical operator employed by Hoechst-Celanese, was working on a "truck platform" situated on the East Farm of the Hoechst-Celanese facility just a short distance from the boundary line fence of Peridot Chemical. She was on the truck loading platform at an elevation approximately 18-20 feet above ground level. The emission source of the combination of S02 and H2S was situated on the Peridot property approximately 210-260 feet from the Ella McAdams-Smith location. The emission source for the September 9, 1991 incident was most probably either a relief valve (not tied into a "stack") or a "start-up stack" on the Peridot MgO regeneration plant approximately 50 feet above ground level.
At about the time of the exposure on September 9, 1991, Ms. McAdams-Smith (and others) noted the presence of a sulfur-pungent odor. She could actually taste sulfur at one point and smelled a rotten egg odor; shortly thereafter she began coughing, gagging, losing her balance, developing a headache, blurred vision, and peculiar waves of emotional feeling. She was taken by ambulance to UMDNJ where she was treated with codeine for severe nausea and vomiting and given a breathing test. Over the ensuing months, she had persistent cough, chest tightness, episodic shortness of breath, and a sensation that her throat was closing. She had persistent headaches, dizziness, nausea, and diarrhea. Her hair and nails became brittle. When she returned to work she developed attacks of coughing and shortness of breath when she was reexposed to sulfur odors emanating from Peridot Chemical. She missed some time from work in this period.
The second incident occurred on July 7, 1992. This time, Ella McAdams-Smith was working with another Hoechst-Celanese chemical operator, Fred Smith, on the Hoechst-Celanese "East Farm." The two employees were working with a railroad tank car rack at ground level. The incident occurred at approximately 12:00 noon.
Again, the individuals, Ella McAdams-Smith and Fred Harris, were exposed to a combination of S02 and H2S -- a nearly fatal dose. The location of Ella McAdams-Smith and Fred Harris at the time of the second incident was at ground level 240 to 290 feet from the emission source. The most likely emission sources were about 50 to 100 feet above ground level.
In reference to this second incident, Ms. McAdams-Smith experienced a metallic taste which she recognized as sulfur. She also encountered a rotten egg smell which lasted several minutes. She was later unable to detect the smell, but was then suddenly unable to breathe and experienced the panic of impending asphyxiation. Fred Harris, in turn, smelled and experienced a sulfur taste shortly after Ms. McAdams-Smith and encountered a rotten egg smell. Ms. McAdams-Smith experienced a brief loss of consciousness, then developed severe respiratory distress, gagging, and repetitive vomiting. Both individuals experienced stumbling, falling, gasping, choking and dizziness. Ambulances were called; the East Farm was shut-down and evacuated; a Hazmat team was called. Ella McAdams-Smith was taken by ambulance to UMDNJ University Hospital with marked tachypnea, anxiety, eye redness and edema, increased lacrimation, runny nose, and stridor; she was admitted to the intensive care unit, intubated, and maintained on a respirator for several days. She developed anemia and leukocytosis. Pulmonary function studies showed obstruction and impaired diffusing capacity; her hospital stay was marked by electrolyte disturbance, severe headache, blurred vision, photophobia, nasal discharge, burning throat and chest pain, difficulty swallowing, wheezing, diarrhea. Her diagnosis included noxious gas inhalation, with upper airway injury and probable tracheitis, and there was a concern that there was a potential for reactive airways dysfunction syndrome or bronchiolitis obliterans. On her fourth day at University Hospital, Ms. McAdams-Smith developed bronchospasm accompanied by sharp chest pain and anxiety and a lung examination disclosed inspiratory crackles. Hospital treatment included steroids, bronchodilators, and Demerol for throat and head pain. She was discharged nine days after admission but thereafter suffered persistent nonproductive cough, dypsnea on exertion, headaches, anxiety attacks, progressive hair loss, nail dystrophy and urticaria. Pulmonary evaluations in March 1993 led to a diagnosis of airway hyperactivity (asthma); in June 1993, diffusion capacity was found to be severely impaired.
Fred Harris, in turn, was taken by separate ambulance to St. James Hospital where he was admitted with complaints of upper and lower respiratory symptoms and neurologic symptoms such as dizziness and weakness. Physical examination revealed an indurated oropharynx and bronchoscopy showed severe tracheobronchitis with extremely friable mucosa. Pulmonary function tests disclosed a restrictive process with evidence of air trapping; within three days of first admission, he showed evidence of airway hyperactivity; a diagnosis of severe fume inhalation with tracheobronchitis secondary to sulfur inhalation was made; he was treated with oxygen, steroids, and bronchodilators. Mr. Harris was discharged after an eleven day confinement, but his private physicians almost immediately readmitted him to Orange Memorial Hospital for persistent respiratory complaints, neurologic complaints and polyuria. An opthalmologic assessment reported, among other things, chemical burns of the cornea and conjunctiva, lids and periocular tissues. The diagnoses included poisonous gas intoxication, occupational asthma, upper airway edema due to sulfur dioxide, diabetes mellitus, chemical conjunctivitis and hypertension. He was discharged July 27, 1992.
Defendant Peridot Chemicals (New Jersey), Inc. was engaged in the business of manufacturing, processing, shipping and storing sulfur-based chemicals at its facility located on Doremus Avenue, Newark, New Jersey.
The Newark facility of Peridot Chemicals (New Jersey), Inc. in the years 1991 and 1992 produced magnesium oxide for sale to Philadelphia Electric Company. Production of magnesium oxide at the Newark facility of Peridot Chemicals (New Jersey), Inc. in the years 1991 and 1992 was conducted in a part of the facility referred to as the Mgo regeneration plant on the east side of Doremus Avenue.
The MgO regeneration plant was the Peridot process located nearest to the south-side fence or boundary of the Peridot facility. The MgO regeneration plant was intended to recycle magnesium sulfite (or MgSO3) to yield magnesium oxide (or MgO) for re-use by Philadelphia Electric as a scrubbant. During the MgO regeneration process, sulfur dioxide (SO2) was also recovered as an intended byproduct of the process and was intended to be used in the manufacture of sulfuric acid.
Although defendant Peridot Chemical's production and handling of massive quantities of S02 (sulfur dioxide) was undisputed, defendant Peridot Chemical adamantly denied that its plant was capable of producing H2S (hydrogen sulfide). While S02 (sulfur dioxide) is an extraordinarily hazardous chemical and an asphyxiant which may cause permanent or fatal effects, H2S (hydrogen sulfide) became an issue of particular concern to the defense because it has the capacity to cause lasting neurologic damage -- including brain damage. Plaintiffs' medical and neuropsychological experts found that both plaintiffs have been afflicted with permanent encephalopathy causally-related to H2S exposure.
Peridot Chemical was alleged to be liable based on its failure properly to use HAZOP techniques familiar to the industry, its failure to identify and protect against the presence of H2S in its process gases, its failure to employ gas scrubber systems in combination with its "start-up stacks," its improper execution of "start-up" procedures, and its negligent operation of the system. As to negligent operation of the system, Dr. Davidson's analysis included, by way of example only, reference to Peridot Chemical's failure sensibly to size and locate the "stacks," its failure to install feed forward sensors at the points of emission with cascading alarms and to establish community evacuation protocols and training, its reliance on incomplete and undisciplined purging procedures, its reckless reliance on an air dispersion analysis which was not applicable to near-field neighbors, its hazardous procedures for timing the activation of two key blowers, its virtually useless (and as to one incident belated) installation of two uninformative S02 monitors separated by many hundreds of feet along the southside fence abutting its neighbors, and its reckless reliance on a pro forma "What-if Analysis" which posited worst case scenarios not remotely consistent with the true hazards of the process and the potential volumes of process gas that could be released.
Although defendant Peridot Chemical admitted the existence of several atmospheric outlets (e.g., a north start-up stack, a south start-up stack, and pressure safety relief valves) in its system, it denied that S02 (sulfur dioxide) or any other process gases could escape to the atmosphere due to an elaborate set of interlocks, permissives, and protocols (Standard Operating Procedures or SoPs) associated with its system; it also claimed that its personnel were trained and safety-conscious and that the plant conditions of both September 9, 1991 and July 7, 1992 represented, in essence, a complete "shut-down" of the calciner "feed" so that S02 (and any other hazardous process gases) cannot have been transitting the system.
Despite defendant Peridot Chemical's general denials on this subject, its own managerial personnel supplied party admissions (and documents) which directly and inferentially established both negligence and proximate cause. These party admissions point to failed protocols and recklessness during procedures for critical system "start-up" phases -- each coinciding precisely with the two incidents under review.
While defendant generally denied that its Mgo regeneration plant was capable of releasing harmful process gases through its system's emission points, it nevertheless argued that, even if process gases were emitted, air dispersion computer modeling techniques established that any puff release equivalent to particular quantities drawn from its own "worst case scenario," could not have reached the sites of the victims' exposures at a parts-per-million level which could have caused the victims' harms.
Apart from the expert testimony in this case, there was considerable testimony from Hoechst-Celanese workers, technicians and managers with several decades of experience in chemicals and the Doremus Avenue industrial neighborhood. These witnesses provided relevant evidence on the history of the MgO regeneration plant's longstanding, frequently-criticised and harmful emission of sulfur-based odors. These same witnesses explained relevant aspects of the Hoechst-Celanese inventory of chemicals, their smells, their chief characteristics, their quantities, their locations, the safe protocols observed in handling them and the Material Safety Data Sheets applicable to them.
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