Toxic Tort Alert
August 31, 2010
Author:
Michael E. Waller
michael.waller@klgates.com
+1.973.848.4132
Joanne Roman Jones
New Jersey Appellate Division Affirms “Dual
Persona” Analysis and Allows Take-Home
Claim Despite Workers’ Compensation Bar to
Direct Exposure Claim
joanne.romanjones@klgates.com
+1.973.848.4137
K&L Gates includes lawyers practicing out
of 36 offices located in North America,
Europe, Asia and the Middle East, and
represents numerous GLOBAL 500,
FORTUNE 100, and FTSE 100
corporations, in addition to growth and
middle market companies, entrepreneurs,
capital market participants and public
sector entities. For more information,
visit www.klgates.com.
On August 20, 2010, the Superior Court of New Jersey, Appellate Division, in
Bonnie Anderson and John R. Anderson v. A.J. Friedman Supply Co., Inc., et
al.,1 upheld a jury verdict of $7,000,000 for the wife of an Exxon Mobil
employee diagnosed with peritoneal mesothelioma, as well as the $500,000
awarded to her husband for his loss of consortium claims. Of particular
significance is that in doing so, the Court affirmed the trial court’s novel “dual
persona” analysis, allowing Plaintiffs to assert their “take-home” exposure claim
against Exxon Mobil, despite what would otherwise be claims subject to the
workers’ compensation bar. The Appellate Division found that the concept of
“dual personas” applied, because Exxon Mobil took on a “completely separate
and independent role with respect to the employee” concerning Mrs. Anderson’s
claimed non-employment related asbestos exposure.2
Factual Background
Plaintiffs married in 1967. From 1969 until his retirement in 2004, Mr.
Anderson worked in various positions at a refinery owned by Exxon Mobil
Corporation (the “Refinery”). After a three-month training period, he worked as
a chemical process operator until 1975. This work involved the removal of
external insulation associated with the repair of pumps and filters. Mr. Anderson
also dumped raw asbestos into tanks and coffee cans, as part of his duties in
repairing filters. Mr. Anderson worked in his street clothes, and he brought those
clothes home to be laundered by Mrs. Anderson.3
From 1975 to approximately 1978, Mr. Anderson worked as a console operator
inside a control room. However, he continued to work overtime removing
insulation and repairing equipment. Plaintiffs claimed that Exxon Mobil never
advised Mr. Anderson about hazards associated with taking his work clothes
home from work. From 1979 until 2004, Mr. Anderson worked as an instrument
technician; and although his clothes were cleaner, he continued to be in contact
with asbestos-containing insulation. Although Exxon Mobil was supplying
lockers, showers, and uniforms at this time, Mr. Anderson never used the
1
2
3
--- A.2d ----, 2010 WL 3289061, 2010 N.J. Super LEXIS 173 (August 20, 2010).
Id. at *23.
Id. at *2-3.
Toxic Tort Alert
showers and brought his laundry home because,
he claimed, the laundry chemicals Exxon Mobil
used caused him discomfort.4
Mrs. Anderson worked at the Refinery from 1975
to 1986. She trained for three years in different
capacities around the Refinery, but never worked
in the chemical plants. She had no recollection of
working with or around asbestos-containing
insulation during this time. From approximately
1978 to 1986, Mrs. Anderson worked as an
electrician, but claimed she did not disturb
insulation during her work. Mrs. Anderson
worked as a school librarian from 1986 until
2004.5 In 2001 Mrs. Anderson was diagnosed
with malignant peritoneal mesothelioma.6
Plaintiffs filed a complaint against Exxon Mobil
as well as against numerous manufacturers and
suppliers of asbestos-containing products. Exxon
Mobil moved for summary judgment, arguing that
the workers’ compensation act provided the
exclusive remedy, and that it barred Plaintiffs’
claim. Judge Ann G. McCormick denied the
motion without prejudice. After discovery, the
company moved again for summary judgment on
the same grounds, with the same result. As all
other Defendants resolved with Plaintiffs prior to
trial, the matter proceeded to trial only against
Exxon Mobil.7
At trial, Plaintiffs alleged that Mrs. Anderson
developed mesothelioma as a result of (1) her own
personal employment at the Refinery from 1975
to 1986, (2) through “take-home” exposure
incurred by laundering her husband’s clothes
during his own employment at the Refinery from
1969 to 2004, or (3) both. At trial both parties
offered witnesses to argue liability and causation.
Exxon Mobil moved for judgment at the close of
Plaintiffs’ case and again at the close of all
4
5
6
7
Id. at *3-4.
Id. at *4-5.
Id. at *6.
Id. at *9.
evidence. The judge denied the first motion and
reserved decision on the second.8
The jury awarded $500,000 in compensatory
damages to Mrs. Anderson only. Plaintiffs
moved for, and were granted, a new trial on
damages. Exxon Mobil’s leave to appeal the new
trial order was denied. Exxon Mobil’s motion for
a new trial on all issues was also denied by the
trial judge. Leave to appeal that decision was
also denied.9 After the second trial on damages, a
different jury awarded Mrs. Anderson $7,000,000
and Mr. Anderson $500,000. The judge ordered
prejudgment and post-judgment interest. Exxon
Mobil appealed, arguing that workers’
compensation act barred Plaintiffs’ recovery, and
that the judge erred in her ruling on several
evidentiary issues and in granting Plaintiffs a new
trial on damages while denying Exxon Mobil’s
motion for a new trial on all issues.10
The Decision
The Appellate Division affirmed the decision of
the trial court and rejected all of Exxon’s
arguments.
Exxon Mobil first argued on appeal that the trial
court should have granted summary judgment
because the claim was barred by the exclusivity
provisions of the workers’ compensation act. The
Appellate Division disagreed. The Appellate
Division found that the facts in this case showed
an injury caused by one (or both) of two different
means of exposure. The Appellate Division
noted that the “source of the responsible exposure
ultimately controls the legal basis of recovery.”11
The Appellate Division noted on appeal that
Judge McCormick had correctly characterized the
issue at trial as “dual exposure” and had found
that the New Jersey Supreme Court’s ruling in
8
9
Id. at *16.
Id. at *17.
10
11
Id. at *18.
Id. at *18.
August 31, 2010
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Toxic Tort Alert
Olivo12 made clear that secondary exposure could
be a basis for a cause of action. The Appellate
Division further noted that the issue before the
trial court was whether Mrs. Anderson could
assert her claim against Exxon Mobil from her
alleged secondary exposure from washing her
husband’s clothes, which included the time she,
herself, was an employee. In response to this
issue at trial, Judge McCormick discussed the
“dual persona doctrine” as detailed in a workers’
compensation treatise.13 Although the trial judge
found no illuminating or factually similar case
law, she nevertheless found that Exxon Mobil
indeed had a “dual persona,” as it held both an
employer relationship and a bystander relationship
to Mrs. Anderson. As a result of this analysis, the
Appellate Division noted that the trial judge
correctly permitted the case to proceed based on
Mrs. Anderson’s claims of bystander (or “takehome”) exposure, which was unrelated to her
employment at the Refinery.14
After reviewing the lower court decision, the
Appellate Division agreed with the trial court’s
analysis. It found that the “dual persona doctrine
would apply in situations when the employer has
undertaken a completely separate and independent
role with respect to the employee.”15 The
Appellate Division found that this application of
the “dual persona” doctrine is supported by the
New Jersey Supreme Court’s decision in Olivo “to
impose a separate duty on employers for injuries
to a worker’s spouse caused by bystander
exposure to the asbestos brought home on work
clothes.”16 In sum, although the workers’
compensation bar eliminated Exxon Mobil’s
liability with respect to Mrs. Anderson’s direct
exposure while present on the Refinery premises,
Exxon Mobil could be held liable pursuant to
Olivo and with respect to Mrs. Anderson’s
secondary exposure to asbestos brought home by
her husband. Therefore, the Appellate Division
affirmed the trial court’s denials of Exxon
Mobil’s motions for summary judgment on this
basis.17
Conclusion
The Superior Court of New Jersey, Appellate
Division’s decision in Anderson establishes the
availability of the “dual persona” analysis in
asbestos claims brought by an employee against
an employer. Because of the unique factual
scenario, this case may be limited to its facts.
However, the decision may be employed by
plaintiffs’ counsel in future attempts to
circumvent the workers’ compensation bar in
other claims brought in New Jersey, as well as
other jurisdictions. It remains to be seen whether
Exxon Mobil will seek to appeal this decision to
New Jersey’s highest court.
12
Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143
(2006) (In Olivo, the New Jersey Supreme Court found a duty
of care was owed by the premises owners for injuries to a
worker’s spouse in take-home cases.)
13
Arthur Larson, Larson’s Workers’ Compensation Law, Vol.
6, § 113.01[1], p. 113-2 (2009).
14
15
16
Id. at *23.
Id. at *23.
Id. at *24.
17
Other issues were addressed in the opinion that are not
discussed in this alert, including the trial court’s decision to
limit the testimony of a defense medical expert, Dr. Gerald
Kerby, regarding the causes of peritoneal mesothelioma in
women, which was also upheld on appeal.
August 31, 2010
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Toxic Tort Alert
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August 31, 2010
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