Opinion
Civil Action No. 90-5620, ASBESTOS CASE.
August 30, 2004
MEMORANDUM
I. BACKGROUND
This asbestos case is brought by Charles Hutchinson ("Plaintiff"), administrator of the estate of his deceased mother, Catherine Hutchinson. Catherine Hutchinson, who was employed in the gasket production division of a plant owned by Garlock Sealing Technologies LLC ("Garlock") located in Camden, New Jersey, died from mesothelioma. The Complaint filed in this action on August 29, 1990, alleges that Catherine Hutchinson contracted mesothelioma as a result of her exposure to asbestos during her employment. The Complaint seeks relief from numerous Defendants. However, only two Defendants, Garlock and Rogers Corporation, remained in the action by the eve of trial. This case was scheduled for trial on Wednesday, August 4, 2004. On Tuesday, August 3, 2004, oral argument was held in this Court addressing all of the pending motions. The oral argument, and intermittent settlement conference in chambers, resulted in a settlement agreement being reached between Plaintiff and Rogers Corporation. (Tr. 8/3/04, p. 56). As for Garlock, upon consideration of the parties' arguments and pleadings, I granted its Motion for Summary Judgment on the merits, and it was dismissed with prejudice from the case. (Doc. No. 109). My ruling was made on the record and no Memorandum Opinion was issued. I proffer this Memorandum Opinion as a written explanation for my granting of summary judgment in Garlock's favor.
Mesothelioma is "a malignant tumor derived from mesothelial tissue (peritoneum, pleura, pericardium)." THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY 445 (1987). "Pleural mesotheliomas have been linked to exposure to asbestos." Id.
Prior to Catherine Hutchinson's employment with Garlock, she was employed by the Philadelphia Naval Shipyard as a clerk on ships. (Compl. ¶ 11(a)). However, Catherine Hutchinson's employment with the Philadelphia Naval Shipyard will not be discussed because this Memorandum Opinion solely addresses Catherine Hutchinson's alleged occupational exposure to asbestos while employed by Garlock. Plaintiff also alleges that Catherine Hutchinson was exposed to asbestos dust due to her washing and handling of work clothing worn by her husband and sons, whose employment included contact with asbestos products or asbestos-containing products. (Id., ¶ 12). Like Catherine Hutchinson's employment with the Philadelphia Naval Shipyard, her alleged exposure to asbestos through her interaction with the work clothing of her husband and sons will not be addressed because this Memorandum Opinion solely addresses Catherine Hutchinson's alleged occupational exposure to asbestos while employed at Garlock.
A large portion of the Defendants were ceratin manufacturers and suppliers of asbestos. (See Compl.)
Rogers Corporation allegedly manufactured and supplied asbestos and/or asbestos-containing products used by the gasket production division of Garlock.
The pending motions included the following: Garlock's Motion for Summary Judgment; Garlock's Motion in Limine; Rogers Corporation's Motion to Preclude Letters and Envelopes of Catherine Hutchinson; Plaintiff's Motions in Limine; and Plaintiff's Motion to Amend the Complaint.
Due to the settlement between Plaintiff and Rogers Corporation, and my granting of summary judgment in Garlock's favor, I denied all outstanding motions as moot. (Doc. No. 110).
II. STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party.Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law.Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
Jurisdiction of this matter is based upon diversity of citizenship. See 28 U.S.C. § 1332. "A federal court sitting in diversity must apply state substantive law and federal procedural law." Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citation omitted). It is undisputed that New Jersey law governs this case. "The federal court [sitting in diversity] may not impose its view of what the state law should be, but must apply existing state law as interpreted by the state's highest court in an effort to determine how the state court would decide the precise legal issue before the federal court." Walsh v. Strenz, 63 F. Supp.2d 548, 551 (M.D. Pa. 1999) (citation omitted).
Garlock's Motion for Summary Judgment is premised upon the argument that, as an employer, it is protected from suit by the exclusive remedy provision of the New Jersey Worker's Compensation Act ("the WCA"), N.J.S.A. § 34:15-8. Thus, the issue to be determined is whether the exclusive remedy provision of the Workers' Compensation statute bars Plaintiff from filing a common law tort action against Catherine Hutchinson's employer, Garlock. Plaintiff argues that he is entitled to bring a suit against Garlock because its conduct during Catherine Hutchinson's employment fell within the "intentional wrong" exception to the exclusive remedy provision of the WCA. Relying upon the exclusivity provision of the WCA, Garlock moved for summary judgment arguing that its conduct did not amount to an "intentional wrong." After examining the parties' documentation and evidence, and after hearing oral argument, Garlock is entitled to summary judgment because Plaintiff has not proven that the "intentional wrong" exception to the exclusive remedy provision of the WCA applies under the facts of this case.
N.J.S.A. 34:15-8, commonly referred to as the "exclusive remedy provision," provides as follows:
[s]uch agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee's death shall bind the employee's personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer's business during bankruptcy or insolvency.
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
N.J.S.A. § 34:15-8 (emphasis added).
A. The "Intentional Wrong" Exception to the Exclusive Remedy Provision of the New Jersey's Worker's Compensation Act.
"Under New Jersey's workmen's compensation scheme, N.J. Stat. Ann. § 34:15-1, et seq., an employee's exclusive remedy against [his] employer for ordinary work injuries is a statutory remedy without regard to fault. In return, the employee forgoes a common law tort remedy." Roma v. U.S., 344 F.3d 352, 363 (3d Cir. 2003) (quotation and internal quotation marks omitted). "The Workers' Compensation System has been described as an historic `trade-off' whereby employees relinquish their right to pursue common-law remedies in exchange for prompt and automatic entitlement to benefits for work-related injuries." Laidlow v. Harriton Mach. Co., Inc., 170 N.J. 602, 605, 790 A.2d 884, 886 (2002) (citing Millison v. E.I. du Pont de Nemours Co., 101 N.J. 161, 501 A.2d 505 (1985)). Such a characterization is only broadly accurate because "not every worker injured on the job receives compensation benefits and not all conduct by an employer is immune from common-law suit." Id. at 605, 790 A.2d at 886. For example, conduct that will not be insulated from common-law suit is when "an employer . . . causes the death or injury of an employee by committing an `intentional wrong.'" Id. at 606, 790 A.2d at 887 (citing N.J.S.A. 34:15-8; Millison, 101 N.J. at 169, 501 A.2d at 505).
In order to determine whether a defendant's conduct satisfies the "intentional wrong" standard, "[i]t is by now settled that . . . a plaintiff must meet a two-prong test first articulated inMillison v. E.I. du Pont de Nemours Co., 101 N.J. 161, 179, 501 A.2d 505, 514 (1985), that focuses on the nature of the employer's conduct and the context within which that conduct occurred." Fisher v. Sears, Roebuck Co., 363 N.J. Super. 457, 464-65, 833 A.2d 650, 654 (citing Laidlow, 170 N.J. 602, 790 A.2d 884) (emphasis in original). Regarding the two separate conduct and context inquiries a trial court must make when deciding a motion for summary judgment, the Laidlow Court stated as follows:
[t]he first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard creates a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied, if not, it should be granted.Laidlow, 170 N.J. at 623, 790 A.2d at 898.
"[A]n `intentional wrong' is not limited to the traditional assault and battery, or to actions taken with a subjective intent to harm, but also includes instances where an employer knows that the consequences of its acts are substantially certain to result in harm or injury to an employee." Fisher, 363 N.J. Super. at 465, 833 A.2d at 655 (citing Laidlow, 170 N.J. at 613, 617-18, 790 A.2d at 894). "On the other hand, the standard does not reach conduct evincing mere knowledge and appreciation of a risk, or even a strong probability of risk." Id. at 465, 833 A.2d at 655 (citation and internal citations omitted). Thus, "[w]hile such an awareness or recognition may define negligence or recklessness, it does not constitute an `intentional wrong,' coming up short on the `substantial certainty' prong." Id. at 466, 833 A.2d at 655. "Indeed, substantial certainty equates to a `virtual certainty.'" Id. at 466, 833 A.2d at 655 (quoting Millison, 101 N.J. at 178-79, 501 A.2d at 514-15). A determination as to an "intentional wrong" requires a case-by-case analysis grounded in the totality of the facts. Id. at 469, 833 A.2d at 657 (citingLaidlow, 170 N.J. at 619-23, 790 A.2d at 896-98).
B. Analysis of the "Intentional Wrong" Exception to the Exclusive Remedy Provision of the New Jersey's Worker's Compensation Act in this Action 1. Analysis of Millison
The landmark case of Millison is paramount to this Court's determination that the exclusive remedy provision of the WCA bars Plaintiff from filing a common law tort action against Garlock. In Millison, employees asserted civil suits against their employer, E.I. du Pont de Nemours Co. ("du Pont"), and its company physicians. 101 N.J. 161, 501 A.2d 505. The employees alleged that their employer and its physicians intentionally exposed them to asbestos in the workplace, deliberately concealed the risks of exposure to asbestos and fraudulently concealed specific medical information obtained during employee physical examinations that revealed diseases already contracted by the employees. Id. at 165, 501 A.2d at 507. Count I of the complaint alleged that defendants intentionally concealed all of the information regarding the health hazards of asbestos from plaintiffs. Id. at 168, 501 A.2d at 509. Specifically, Count I stated that defendants knew, or should have known, of the dangers associated with exposure to asbestos and, therefore, had a duty to inform plaintiffs and to protect them from those dangers.Id. at 168, 501 A.2d at 509. In Count II, plaintiffs averred that du Pont and its company physicians fraudulently concealed from plaintiffs the fact that company medical examinations revealed that certain plaintiffs-employees had contracted asbestos-related diseases. Id. at 181, 501 A.2d at 516. By fraudulently concealing the plaintiffs' asbestos-related diseases, plaintiffs alleged that their initial asbestos-related infirmities were left untreated and aggravated by additional exposure to asbestos as a result of defendants sending them back to work after failing to provide medical treatment for its employees. Id. at 181, 501 A.2d at 516.
Relying upon the exclusive remedy provision of the WCA, the New Jersey Supreme Court upheld the dismissal of plaintiffs' Count I reasoning that their seeking of damages beyond those available through Worker's Compensation for their initial work-related occupational diseases must fail because "plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit." Id. at 179, 501 A.2d at 514-15. As for Count II, the Millison Court concluded that plaintiffs pleaded a valid cause of action for aggravation of their initial occupational diseases as a result of their allegations that the defendants fraudulently concealed from plaintiffs knowledge of already-contracted diseases because "an employer's fraudulent concealment of diseases already developed is not one of the risks an employee should have to assume. . . . [because] [s]uch intentionally-deceitful action goes beyond the bargain struck by the Compensation Act." Id. at 182, 501 A.2d at 516. The New Jersey Supreme Court differentiated between plaintiffs' Counts I and II by concluding "that plaintiffs' allegations that defendants fraudulently concealed knowledge of already-contracted diseases are sufficient to state a cause of action for aggravation of plaintiffs' illnesses, as distinct from any claim for the existence of the initial disease, which is cognizable only under the Compensation Act." Id. at 182, 501 A.2d at 516.
a.) Analysis of Millison and the Instant Action
The New Jersey Supreme Court's decision in Millison, which squarely addresses the issue at bar, is critical to the instant action because the allegations against Garlock in the underlying Complaint parallel the allegations contained in Count I of theMillison Complaint. Notably, the Millison Court determined that such allegations did not assert a viable cause of action in common law against an employer due to the exclusivity bar found in the WCA. Like Count I in Millison, the instant action deals with the exclusive remedy provision of the WCA in the context of an occupational disease caused by exposure to asbestos during employment. Also similar to the plaintiffs' argument inMillison is Plaintiff's contention that Garlock's alleged knowing exposure of its employees to asbestos falls within the "intentional wrong" exception to the exclusive remedy provision of the WCA. Due to the virtual parallelism of the instant action with Count I in Millison, this Court is compelled to follow the New Jersey Supreme Court's conclusion in Millison which stated that "[a]s to so much of plaintiffs' complaints as seek damages for deliberate exposure to asbestos and to the risks associated with that exposure . . . those claims are compensable exclusively under the Compensation Act." Id. at 188, 501 A.2d at 519.
The Millison Court throughly analyzed the exclusivity provision of the WCA in the context of an occupational disease caused by exposure to asbestos during employment. In order to determine whether plaintiffs stated a cause of action under the "intentional wrong" exception to the exclusive remedy provision of the WCA, the Court examined the history and goals of the Worker's Compensation System. Id. at 173-78, 501 A.2d at 512-15. Mindful of the purpose of the WCA, the Court examined the conduct of du Pont. Id. at 179, 501 A.2d at 514-15. In determining what level of risk-exposure is so egregious as to constitute an "intentional wrong," the Court adopted the substantial certainty standard. Id. at 178, 501 A.2d at 514. Justice Clifford writing for the majority, stated:
[i]n adopting a `substantial certainty' standard, we acknowledge that every undertaking, particularly certain business judgments, involve some risk, but that willful employer misconduct was not meant to go undeterred. The distinctions between negligence, recklessness, and intent are obviously matters of degree, albeit subtle ones, as the thoughtful dissent so powerfully points out. In light of the legislative inclusion of occupational diseases within the coverage of the Compensation Act, however, the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. We must demand a virtual certainty.Id. at 178, 501 A.2d at 514 (citations omitted). Examining the conduct taken by du Pont, the Millison Court applied the "substantial certainty" standard to the facts of the case and concluded that:
[a]lthough defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees' health, as we have observed heretofore the mere knowledge and appreciation of a risk — even the strong probability of a risk — will come up short of the `substantial certainty' needed to find an intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute.Id. at 179, 501 A.2d at 514-15.
As for the context prong of the Millison test, the Court examined the context in which du Pont's conduct took place. Id. at 179, 501 A.2d at 514-15. The Court's context analysis focused upon whether the resulting injury or disease, and the circumstances in which it was inflicted on the worker, can fairly "be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act[.]" Id. at 179, 501 A.2d at 514. After examination, the Millison Court concluded as follows:
[i]n the face of the legislature's awareness of occupational diseases as a fact of industrial employment, we are constrained to conclude that plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit.Id. at 179, 501 A.2d at 515. Acknowledging the harsh reality of their decision, the Millison Court affirmed the dismissal of plaintiffs' Count I stating that "[d]espite the fact that in some instances it is an obviously unattractive solution to preclude workers such as are represented by the plaintiffs before us from suing at common law for full reparation for their initial illnesses, the express terms and underlying purposes of the Compensation Act compel that result." Id. at 181, 501 A.2d at 516. Enforcing what it deemed as the "legislative will," theMillison Court stated as follows:
[w]e acknowledge a certain anomaly in the notion that employees who are severely ill as a result of their exposure to asbestos in their place of employment are forced to accept the limited benefits available to them through the Compensation Act. Despite the fact that the current system sometimes provides what seems to be, and at times doubtless is, a less-than-adequate remedy to those who have been disabled on the job, all policy arguments regarding any ineffectiveness in the current compensation system as a way to address the problems of industrial diseases and accidents are within the exclusive province of the legislature.Id. at 179-80, 501 A.2d at 515.
The thorough analysis in Millison, which is factually on-point with the instant case, dictates the conclusion that the exclusive remedy provision of the Workers' Compensation statute bars Plaintiff from filing a common law tort action against Catherine Hutchinson's employer, Garlock. During oral argument, Plaintiff's counsel conceded the factual similarity between the instant action and Millison. (Tr. 8/3/04, p. 18). Although factually similar, Plaintiff's counsel attempted to distinguish the instant case from Millison. Plaintiff's counsel argued that Garlock was a manufacturer of asbestos, whereas du Pont was merely an employer who used asbestos on its premises and was not an asbestos manufacturer. (Id., p. 16). Plaintiff's counsel also attempted to distinguish the two cases by arguing that Garlock allegedly had knowledge that asbestos caused cancer, while the record contained within the Millison Memorandum Opinion did not reveal that senior du Pont officials had knowledge that asbestos could cause cancer. (Id.).
Regarding Plaintiff's first point of differentiation, Plaintiff's counsel does not explain how Garlock's status as an asbestos manufacturer alters the ruling in Millison as it applies in the employer-employee context. Millison's ruling clearly applies to the employer-employee relationship, and makes no attempt to narrow its application regarding the employer's field of business. Since there is no material explanation as to why Garlock's business as an asbestos manufacturer affects theMillison decision as it applies in the employer-employee context, the first distinction by Plaintiff's counsel holds no weight. As for the second distinction regarding the contention that Garlock allegedly knew that asbestos caused cancer and du Pont officials apparently did not possess such information, this distinction is questionable. The exact knowledge regarding asbestos and its link to cancer known by both Garlock and du Pont, during the respective time periods, is not clear. Nevertheless, as I pointed out during oral argument, theMillison decision appears to presume that du Pont officials possessed knowledge regarding the dangers of asbestos. (Id., p. 20). Even presuming that officials at du Pont had knowledge regarding the serious risks attendant with exposure to asbestos, the Millison Court concluded that the plaintiffs' claims seeking damages for deliberate exposure to asbestos and to the risks associated with that exposure were only compensable under the Compensation Act. 101 N.J. at 189, 501 A.2d at 519. An analysis of the distinctions set forth by Plaintiff reveals that the instant action does not materially differ from Millison. Since Millison is factually on-point, and continues to be the law in the State of New Jersey, I must follow the dictates elicited in Millison and conclude that the exclusive remedy provision of the Worker's Compensation statute bars Plaintiff from filing a common law tort action against Garlock.
2. Analysis of Laidlow
In addition to unsuccessfully attempting to differentiate the instant case and Millison, Plaintiff argues that Laidlow, a case decided seventeen years subsequent to Millison, expands upon the statutory exception to the Worker's Compensation bar making it easier for plaintiffs to reach a jury against their employer. (Pl.'s Mem. Opp'n Garlock's Mot. Summ. J. at 4). Like Millison, Laidlow is also a key case regarding the applicability of the exclusive remedy provision of the WCA.Laidlow dealt with a plaintiff, an employee, who was seriously injured at his place of employment when his gloved hand became caught in a rolling mill. Laidlow, 170 N.J. at 606, 790 A.2d at 887. The plaintiff, and another employee, had both escaped previous similar injuries from the same rolling mill. Id. at 607, 790 A.2d at 888. Both previous close calls had been reported to the employer before the serious injury was incurred by plaintiff. Id. at 608, 790 A.2d at 888. Thirteen years prior to plaintiff's injury, a safety guard for the rolling mill had been purchased by the employer, but was purposefully kept disengaged.Id. at 608, 790 A.2d at 888. The safety guard was placed in its proper position only when the plant was visited by Occupational Safety and Health Administration ("OSHA") inspectors. Id. at 608, 790 A.2d at 888. On three occasions prior to his accident, plaintiff had requested to his supervisors that they restore the guard to its proper working position. Id. at 608, 790 A.2d at 888. Plaintiff's requests were ignored and the employer conceded "that the guard was removed for `speed and convenience.'" Id. at 608, 790 A.2d at 888. The Laidlow Court concluded that a jury could find that the employer knew that it was "substantially certain that the removal of the safety guard would result eventually in injury to one of its employees," based upon the evidence revealing "prior close calls, the seriousness of any potential injury that could occur, Laidlow's complaints about the absent guard, and the guilty knowledge of [the employer] as revealed by its deliberate and systematic deception of OSHA."Id. at 622, 790 A.2d at 897-98.
Notably, Laidlow does not overturn Millison.
"Laidlow resolved certain conflicting interpretations of the Court's prior decision in Millison." Fisher, 363 N.J. Super. at 465, 833 A.2d at 655 (citations omitted). Regarding what actions constitute an "intentional wrong," the Laidlow Court clarified that "that [it] is not limited to the traditional assault and battery, or to actions taken with a subjective intent to harm, but also includes instances where an employer knows that the consequences of its acts are substantially certain to result in harm or injury to an employee." Id. at 465, 833 A.2d at 655 (citation omitted). "On the other hand, the standard does not reach conduct evincing mere knowledge and appreciation of risk . . . or even a strong probability of risk." Id. at 465, 833 A.2d at 655 (citations and internal citations omitted).
a.) Analysis of Laidlow and the Instant Action Laidlow is factually distinct from the instant case.Laidlow does not confront the exclusive remedy provision of the WCA in the context of an occupational disease caused by exposure to asbestos during employment like Millison, but confronts the provision in the industrial-manufacturing context. Likewise, unlike the instant case, Laidlow dealt with an employer who removed a safety guard from a piece of industrial machinery and possessed the "guilty knowledge" regarding the substantial certainty that such removal would eventually result in an injury to one of its employees. The instant case does not involve such intentionally deceitful action as found inLaidlow. The factual disparities between Laidlow and this case, as opposed to the factual parallelism found between the instant action and Millison, is pivotal.
"Cases interpreting the `intentional wrong' standard have arisen for the most part in the manufacturing sector and generally have involved the circumstances of an employer intentionally removing or disabling a safety device on a piece of industrial production machinery used in the employer's business."Fisher, 363 N.J. at 466, 833 A.2d at 655. "Outside the industrial-manufacturing context, however, courts have generally been reluctant to find satisfaction of the `intentional wrong' standard." Id. at 470, 833 A.2d at 658.
In setting forth the proper standard by which to examine the "intentional wrong" exception to the exclusive remedy provision of the WCA, I previously cited to the law contained withinLaidlow. See supra Part III.A. Even if I was not confined to the applicable ruling of the New Jersey Supreme Court inMillison, Plaintiff's claim against Garlock would fail. If Plaintiff was able to successfully establish the conduct prong of the Millison analysis by presenting evidence, viewed in a favorable light, which could lead a jury to conclude that Garlock acted with knowledge that it was substantially certain that an employee would suffer injury, he could not get beyond the context prong of the analysis. If the conduct prong is answered affirmatively, the context issue is solely a judicial function to determine whether, if the Plaintiff's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar. Laidlow, 170 N.J. at 623, 790 A.2d at 898. Relying upon both the Millison Court's Memorandum Opinion and its thorough analysis of the legislative history of the WCA, and in light of the fact that no evidence or case law was presented which altered the analysis, I defer to the New Jersey Supreme Court's conclusion that an occupational disease resulting from exposure to asbestos "must be considered the type of hazard of employment that the legislature anticipated would be compensable under the terms of the Compensation Act and not actionable in an additional civil suit."Millison, 101 N.J. at 179, 501 A.2d at 515. Since I conclude that Plaintiff's allegations would not meet the context prong, Garlock is entitled to summary judgment.
I am assuming that Plaintiff is able to successfully establish the conduct prong of the Millison analysis solely for purposes of this Memorandum Opinion. It remains questionable whether Plaintiff would actually be able to successfully establish the conduct prong set forth in Millison andLaidlow.
IV. CONCLUSION
During oral argument, Plaintiff's counsel acknowledged that there are no New Jersey cases that have applied the legal tenets set forth in Millison in such a manner as to permit a common law suit against an asbestos employer in light of the exclusive remedy provision of the WCA. (Tr. 8/3/04, p. 15). When questioned about whether Millison has ever been applied by a New Jersey court in the situation in which Plaintiff was requesting it be applied in this case, Plaintiff's counsel admitted that it had never been applied in such a situation. (Id.). Relying conclusively upon the Millison decision and giving weight to the fact that the case has never been applied in such a manner as requested by Plaintiff, I concluded the August 3, 2004 oral argument by stating that "[i]t is my feeling that after carefully going over the cases from the State of New Jersey dealing with this issue, that the courts there have carefully decided not to go any further into the asbestos realm with the invading the province of the Workers' Compensation field and for that reason, I am granting [Garlock's Motion for Summary Judgment]." (Id., p. 56, lines 3-10). As a federal court sitting in diversity, I must apply the existing state law as interpreted by the New Jersey Supreme Court. See supra n. 7. The existing state law regarding the precise legal issue in this action has been squarely set forth by the Millison Court. Following the legal tenets elicited in Millison, as well as in Laidlow, Plaintiff's common law action is barred by the exclusive remedy provision of the WCA. As a result, Garlock is entitled to summary judgment. I proffer this Memorandum Opinion analyzing the instant action under the auspices of both Millison and Laidlow to further support and explain my previous grant of summary judgment made from the bench on August 3, 2004.