Double Exposure

When it rains, it pours.

In early April, a Passaic County, N.J., civil jury awarded a $3.5 million verdict against two companies that operate a recycling plant, stemming from a 1997 explosion at the facility that killed one worker and left another severely injured.

A week later, a county grand jury handed up an indictment charging two plant managers and the companies with aggravated manslaughter, assault and environmental offenses arising from the blast.

In December 1997, Darisz Wisniewski was compacting paper and cans of hairspray in a baler at a facility operated by Joseph Damato Paperstock Inc. (JDPI), Paterson, N.J. Nearby, a co-worker, Victor Lopez, climbed onto a forklift and started it. A spark from the ignition process ignited the isobutane vapors that had leaked from the cans during compaction. The explosion killed Wisniewski and left Lopez with burns that severely scarred and disfigured his face, hands and legs.

Lopez and the estate of Wisniewski filed separate lawsuits against JDPI, its subsidiary, Annex Paperstock, which directly employed the victims, and Philip Damato Realty Co., which owned the property on which the plant was located. The suits accused JDPI of negligently allowing the aerosol cans to be mixed with the paper prior to baling, among other claims. The civil cases languished for years as the parties awaited the outcome of an ongoing criminal investigation.

"We started discovery a year after the accident but couldn't complete discovery because the criminal matter came first," said Montvale, N.J., attorney Richard Weiner, who represented Lopez. "It was investigated for several years [by] the state and county ... the U.S. Attorney and the [U.S.] Environmental Protection Agency ... but never acted on," he added.

The Passaic County Superior Court consolidated the civil cases into a single proceeding. The six-day trial ended with a finding of negligence against JDPI, Annex and the realty firm — entities owned by Philip Damato. The jury awarded $3 million to Lopez and $500,000 to Wisniewski's estate. The criminal indictments name JDPI, Annex and two plant managers — Joseph P. Damato and Joseph F. Damato, both of whom are related to Philip Damato.

Much of the evidence from the civil trial likely will reappear in the criminal proceeding, particularly testimony from experts on the handling of flammables. Indeed, criminal investigators attended the civil trial.

Civil cases usually do not precede criminal trials on the same subject matter. However, Passaic County Senior Assistant Prosecutor Paul S. Chiaramonte, who presented the case before the grand jury, cited "intervening factors," including review by EPA for the delay. "Criminal investigations take as long as they need," he said.

JDPI and Annex are represented by North Bergen, N.J., attorney Jim Segretto, who told The National Law Journal that prosecutors were facing a deadline under the statute of limitations. "We had an accident, but to suggest it was done with gross indifference to human life is ridiculous," he said.

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].