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Vispisiano v. Ashland Chemical Co.6/29/1987
[107 NJ Page 419] 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
companion 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
Plaintiff's 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 plaintiff's 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 testimony
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 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 * * *." Th
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