Millison v. E.I. du Pont de Nemours & Co.
| Decision Date | 02 April 1984 |
| Citation | 101 N.J. 161,501 A.2d 505 |
| Parties | , 54 USLW 2327 William B. MILLISON and Marie Millison, his wife; Vernon G. Kronmaier and Dorothy Kronmaier, his wife; Harold Schwebel and Susan Schwebel, his wife; Clarence Schwebel and Geraldine Schwebel, his wife; Frank Baptiste and Catherine Baptiste, his wife; and Edward B. Agar and Eileen Agar, his wife, Plaintiffs-Appellants, v. E.I. du PONT de NEMOURS & COMPANY; William E. Neeld, Jr., M.D.; G.F. Reichwein, M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiberglass Corporation; Keene Corporation; Celotex Corporation; Raybestos-Manhattan Corporation; Sepco Corporation; Amatex Corporation; Phillip Carey Company; Limpet Corporation; H.J. Stein, M.D.; John Doe, M.D.; Richard Roe, M.D.; John Doe Corporation; and Richard Roe Corporation, Defendants. Evan TAYLOR and Rosina Taylor, his wife; Joseph J. Kuczmarski and Louise Kuczmarski, his wife; John Still and Anna L. Still, his wife; Louis Walat and Catherine Walat, his wife; Norris M. Hildebrand and Hilda Hildebrand, his wife; Pasquale S. Chilliri, Sr., and Mary Chilliri, his wife; Antonio DiPietro; Robert McKibbin and Anna McKibbin, his wife; Robert Tanner and Rosemary Tanner, his wife; Louis J. Kirsch and Edith Kirsch, his wife; Howard H. Amos and Ann Amos, his wife; Harold Knorr and Eleanor Knorr, his wife; George Sullivan and Pauline Sullivan, his wife; Louis P. Faverio and Dolores Faverio, his wife; Arthur Kirner and Margery Kirner, his wife; Earl Stanton and Madeline Stanton, his wife; Daniel Mullen and Shirley Mullen, his wife; George Milton Gross and Alice M. Gross, his wife; Calvin R. Shaw and Dolores Shaw, his wife; Paul Donald Long and Grace Long, his wife; David Robert Ramsey and Virginia Ramsey, his wife; and Eugene Bleckley, Plaintiffs- Appellants, v. E.I. du PONT de NEMOURS & COMPANY; William E. Neeld, Jr., M.D.; G.F. Reichwein, M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiberglass Cor |
| Court | New Jersey Supreme Court |
David Jacoby, Haddonfield, for plaintiffs-appellants (Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, attorneys; William Tomar, Haddonfield, of counsel; James Katz, Haddonfield, on briefs).
Thomas L. Morrissey, Newark, for defendants-respondents (Carpenter, Bennett & Morrissey, Newark, attorneys; Rosemary A. Hall, Newark, on briefs).
Verice M. Mason, Asst. Deputy Public Advocate, for amicus curiae Public Advocate (Joseph H. Rodriguez, Public Advocate, attorney; Verice M. Mason and Michael L. Perlin, Sp. Counsel to the Com'r, Trenton, of counsel and on brief).
Sebastian P. Lombardi, Short Hills, submitted a brief on behalf of amicus curiae Edwin Davis Merrill, M.D., (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Short Hills, attorneys).
The opinion of the Court was delivered by
The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Compensation Act), contains an exclusive-remedy provision in N.J.S.A. 34:15-8. The issue in these consolidated cases is whether that provision precludes employees who have suffered occupational diseases from maintaining a separate tort action against their employer and against company physicians. The employees charge the employer and physicians with intentionally exposing the employees to asbestos in the workplace, deliberately concealing from employees the risks of exposure to asbestos, and fraudulently concealing specific medical information obtained during employee physical examinations that reveal diseases already contracted by workmen. We hold that although the employees are limited to workers' compensation benefits for any initial occupational-disease disabilities related to the hazards of their employment experience, the Compensation Act does not bar plaintiffs' cause of action for aggravation of those illnesses resulting from defendants' fraudulent concealment of already-discovered disabilities.
Plaintiffs are former E.I. du Pont de Nemours (du Pont) employees and their spouses (reference to plaintiffs henceforth is to the employees). Defendants are du Pont and its company physicians who had worked at the du Pont plants at which plaintiffs-employees were stationed. Also named as defendants are certain manufacturers and suppliers of asbestos. Plaintiffs' claims against those defendants are unaffected by the disposition of this appeal; therefore, all subsequent references to defendants will include only du Pont and its company physicians.
Five separate complaints were filed by different sets of plaintiffs. But for the identities and descriptions of the plaintiffs, these complaints are identical in their basic allegations, and whatever differences there may be are irrelevant to our discussion.
Plaintiffs' brief before this Court summarizes their claims as follows:
The gravamen of the plaintiffs' claims [is] that du Pont and its doctors intentionally injured the plaintiffs by deliberately exposing them to asbestos and aggravated these injuries by conspiring to [conceal] and fraudulently concealing from the plaintiffs knowledge of diseases known by these defendants to have been caused by asbestos exposure and already contracted by the plaintiffs. Plaintiffs have suffered grievous and irreversible injuries both as a result of their initial exposure to asbestos and the failure of du Pont and its doctors to reveal diseases already contracted by the plaintiffs and known to the defendants.
Defendants filed a motion for summary judgment in the Millison case and moved in the four companion matters to dismiss plaintiffs' complaints for failure to state a claim upon which relief could be granted. Defendants' argument in support of their motions was that plaintiffs' exclusive remedy was recovery under the Compensation Act. The trial court consolidated all claims for the purpose of disposing of the motions for dismissal. It originally denied the motions without prejudice and instructed plaintiffs to depose the defendants-physicians in order to create a more complete factual record. When defendants later renewed their motions to dismiss, the trial court granted summary judgment to du Pont but refused to dismiss the claims against the company doctors.
All parties sought interlocutory review in the Appellate Division, where their motions for leave to appeal were denied. Thereafter, we granted leave to appeal and summarily remanded the matter to the Appellate Division for consideration on the merits, 91 N.J. 181, 450 A.2d 520 (1982).
In an unreported opinion, the Appellate Division reversed the trial court's denial of the physicians' motion for summary judgment and affirmed the trial court's judgment in favor of du Pont. We granted plaintiffs' petition for certification, 94 N.J. 604, 468 A.2d 236 (1982), and now affirm in part and reverse in part.
Under Rule 4:46-2 the court shall grant summary judgment if a discriminating search of the merits in the pleadings, depositions, and admissions on file, together with the affidavits submitted on the motion, clearly shows that there is no genuine issue of material fact requiring disposition at a trial. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954); see Robbins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957). It is with this standard in mind that we examine plaintiffs' specific allegations.
Plaintiffs-employees are all past or present workers at defendant du Pont's Chamber Works or Repauno plants. Both plants are involved in the manufacture of chemicals; each contains an extensive amount of piping through its facilities. As asbestos was often used for insulation purposes, the pipes in these plants were at one time surrounded by asbestos. It is therefore reasonably inferable that certain employees at the Chamber Works and Repauno plants were exposed to the asbestos insulation and inhaled asbestos fibers.
Defendants-physicians are Dr. W.E. Neeld, the medical director for the Chamber Works plant, and Drs. G.F. Reichwein and A. Smulkstys, former du Pont physicians at the Repauno plant. As medical director of Chamber Works, Dr. Neeld was required to supervise a medical staff of thirty-eight people responsible for meeting the health-care needs of the approximately 4,800 Chamber Works employees. The duties of Drs. Reichwein and Smulkstys, as plant physicians, included...
To continue reading
Request your trial
-
Jeffrey N. Brookover and Susan Brookover v. Flexmag Industries, Inc.
...... constitute an "intentional wrong"'"). (quoting Millison v. E.I. du Pont de Nemours & Co . (1985), 101 N.J. 161, 177, 501 A.2d ......
-
Lucenti v. Laviero
......'s leading decision articulating the substantial certainty test, Millison v. E.I. du Pont de Nemours & Co. , 101 N.J. 161, 178–79, 501 A.2d 505 ......
-
Bishop v. Okidata, Inc.
...... Millison v. E.I. du Pont Nemours & Co., 101 N.J. 161, 170-73, 501 A.2d 505 (1985). ......
-
Grillo v. National Bank of Washington
......Dow Chem. Co., supra, 427 Mich. 1, 398 N.W.2d 882; Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 177-79, 501 A.2d 505, 514 ......
-
Beyond Workers' Compensation: Workplace Comparative Fault & Third-party Claims
...such a high level that it is practically certain that some employee would be injured." (citing Millison v. E.I. du Pont DeNemoors & Co., 501 A.2d 505 (1985))). The court in Laidlow specifically approved of the decision in Mabee v. Borden, 720 A.2d 342, 348 (N.J. Super. Ct. App. Div. 1998). ......