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DOCKET NO. A-4009-05T54009-05T5















KLM 1-10, and LABORATORY GHI 1-10,









Argued October 22, 2007 - Decided:

Before Judges Stern, A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6247-01.

Leonard Dauerman argued the cause for appellants.

Michael A. Tanenbaum argued the cause for respondents (Sedgwick, Detert, Moran & Arnold, attorneys; Mr. Tanenbaum, of counsel and on the brief; Christopher J. Keale, on the brief).


This is the second appeal arising from the catastrophic injuries sustained by Yan Ping Wang, beginning on July 8, 1999. She and her husband John Zhang (collectively "plaintiffs") sued several defendants alleging liability for her injuries as well as the death of her unborn twins. In the first appeal, plaintiffs challenged the trial court's entry of summary judgment dismissing their claims against Bristol-Myers Squibb, Inc. (BMS), Dr. M. Erika Beko, BMS's Medical Director, and John Trela, BMS's Safety and Industrial Hygiene Manger (collectively "BMS defendants"). We reversed the summary judgment and remanded. No. A-2736-02T5 (App. Div. July 8, 2004). In this appeal, plaintiffs challenge the March 31, 2006 order by Judge Yolanda Ciccone, granting summary judgment to BMS, Beko and Trela. We affirm.

The facts are fully set forth in our earlier opinion. In summary, Wang was thirty-six years old and in her sixteenth week of pregnancy, carrying twins after a voluntary reduction of a third fetus two weeks earlier. She worked as a chemist for BMS. On July 8, 1999, there was a small party at BMS for their employees. At the party, she ate some cake with strawberries. Afterwards, she felt nauseous and dizzy. She reported to the BMS infirmary that afternoon where she was seen by Dr. Beko. Dr. Beko asked about her symptoms, took vital signs and did a finger stick to test plaintiff's blood glucose. Wang rested in the infirmary for the rest of the afternoon.

At about 5:00 p.m., Wang's obstetrician-gynecologist recommended that she be taken to the emergency room at St. Peters University Hospital. Dr. Angela Ranzini, an obstetrician-gynecologist on duty at the hospital, conducted the initial examination of Wang and found nothing alarming. However, the hematology report revealed a white blood count (WBC) of 42,000, one of the highest readings that Dr. Ranzini had ever seen. Immediately thereafter, Wang developed significant swelling and was transferred to the intensive care unit (ICU). After being hydrated, her blood pressure dropped and her arms, lips and eyelids swelled. Her physicians were stumped at the cause of these conditions.

Dr. Ranzini asked Wang whether she had been exposed to any chemicals at work. Wang told her there had been a small chemical spill, less than one cc, the prior day. According to Wang, there was no exposure to her skin because she was wearing gloves. Dr. Ranzini placed a call to Jonathan Josephs, Wang's supervisor at BMS. He corroborated Wang's version of the events, adding that the chemical was an HIV inhibitor.

The treating physicians began exploring other causes for Wang's condition, including infection. Because Wang had undergone an earlier elective reduction of a third fetus, the physicians considered, but later ruled out, sepsis after an amniocentesis was performed. Two hours later, however, both fetuses spontaneously aborted. Wang's condition continued to deteriorate.

Around the same time, Dr. Beko arrived at work at BMS. There was a note on her desk from Josephs. Dr. Beko immediately called the hospital and spoke with Dr. Ranzini. Dr. Ranzini asked whether Wang had contact at work with any biologicals or viruses. Dr. Beko indicated that she would do a worksite evaluation.

Dr. Beko telephoned Trela to tell him Wang was in intensive care. She requested an immediate worksite evaluation of Wang's laboratory. Trela examined the laboratory, the projects on which Wang worked, and her garbage pail. However, the prior day's garbage had already been collected. Trela completed his report and gave it to Dr. Beko. The report indicated that none of the chemicals, compounds or solvents in Wang's laboratory could be harmful to her or her fetuses. He found no biological specimens or viruses present.

The next day, Wang was in considerable pain and the swelling continued in all four extremities. Wang was taken to the operating room to have fasciotomies of her arms and legs in order to prevent nerve damage from the swelling.

A week later, Wang was returned to the operating room to close up the wounds on her arms and legs from the fasciotomies. The operating room physicians discovered that Wang's condition necessitated above knee amputations and above elbow amputations of the extremities. Approximately a week after the amputations, Wang "suffered a code" and was "reintubated." She was stabilized, but her cognitive status was permanently impaired. Then, Wang suffered a heart attack and was comatose for weeks. When she awoke, she could not see or speak and was only able to communicate by blinking her eyes. She was discharged to a rehabilitation facility eighty days after her admission.

Plaintiffs sued BMS, Trela, Dr. Beko, St. Peters Hospital, and various physicians based on negligence and medical malpractice theories. No Workers' Compensation Claim petition was filed.

BMS, Trela and Dr. Beko moved for summary judgment, asserting the Workers' Compensation Act's (WCA) exclusive remedy, which bars common law tort actions against the employer or fellow employees and that the claim did not fit the intentional wrong exception to this bar. N.J.S.A. 34:15-8. The judge granted summary judgment, concluding that plaintiffs did not produce sufficient proofs to substantiate a proximate cause between the alleged wrongful conduct by BMS and its employees, and the injuries sustained.

On appeal, we found that the proofs presented were not sufficient to establish proximate cause or the intentional wrong exception to the WCA's bar. Wang v. Bristol-Myers Squibb, Inc., No. A-2736-02T5 (App. Div. July 8, 2004). But, we did not affirm the dismissal of the complaint. Rather, we noted that the discovery conducted by plaintiffs' counsel was "sparse and inadequate." Id. at slip op. at 24. We stated:

we confess to a lingering doubt that [Wang] has had her full opportunity to seek justice in redress of her injuries. Fairness in our view mandates a short but reasonable period for additional discovery . . . .

Our conclusion shall not be interpreted as an indication that summary judgment would be inappropriate once the record is expanded. While it is understandable to fix responsibility and seek redress for an unexpected and tragic event . . . experienced by this plaintiff, the law requires that legal responsibility be assessed in accordance with statutes adopted by our Legislature and precedents developed over time by case law. And it may be that responsibility for [Wang's] devastating condition cannot be assessed because there is no fault beyond the fact that some terrible things in life are understood only as a tragic mystery.

[Id. at slip op. at 25-26.]

On remand, the case was assigned to a different judge, Yolanda Ciccone. She issued multiple case management orders, permitting plaintiffs to serve interrogatories upon BMS and several of its employees and ordered BMS to produce "any documents identifying the compounds that were analyzed by [Wang] during the week prior to her hospital admission." BMS produced the requested documents. On the same day, plaintiffs filed for summary judgment. BMS opposed the motion. Judge Ciccone denied plaintiffs' motion.

At a subsequent case management conference, Judge Ciccone discovered that plaintiffs had not conducted the deposition of Josephs in a timely manner. She granted BMS leave to re-file a motion for summary judgment and barred any attempts to depose Josephs. Plaintiffs moved for leave to appeal. We granted the motion and summarily reversed the order barring the deposition of Josephs. No. M-4394-04 (App. Div. May 17, 2005). We also ordered BMS to produce a certified list identifying each substance with which Wang had worked for the eight days prior to her hospitalization.

Josephs was deposed and BMS provided the certified list. After all discovery deadlines were extended by the trial judge, plaintiffs moved for a default judgment against the BMS defendants, asserting the following grounds:

I. The defendants' defenses are obviated because they lied about key facts under oath on facts material and relevant to the disposition of this case that have been the major cause of over 4 years of lengthy and costly litigation.

II. The defendants did not comply with the Appellate Division order dated May 17, 2005.

The BMS defendants re-filed their motion for summary judgment. After Judge Marina Corodemus was unable to resolve the matter through mediation, Judge Ciccone granted the BMS defendants' motion for summary judgment and denied plaintiffs' motion for default judgment. The judge gave the following reasons:

There is no prima facie case here. [I]t's only based on the accusations of the plaintiff's counsel. The accusations that [BMS], Dr. Beko, John Trela, all acted intentionally to conspire to sacrifice the life of Ms. Wang is absolutely without merit. The fear that the FDA would stop production of a drug, again, conjecture.

The moving party had no knowledge of the spill. That's another allegation here. And the act is intentionally to harm Ms. Wang following the spill in the laboratory. To meet the burden of proof plaintiff must establish that Dr. Beko, John Trela and [BMS] knew there was a spill and that she had cleaned it up. All those parties have been deposed. There's hundreds of interrogatories, they have been answered, four years of litigation, not one shred of evidence shows that and gives any, any credence to that issue.

Work site evaluation played no role in . . . Ms. Wang's treatment. Discovery established that the work site evaluation had nothing to do with the medical treatment that Ms. Wang received.

After reviewing all of the documents carefully and case managing this matter every step of the way for the last two years, it is the finding of this court that no jury could find the defendants, [BMS], John Trela or [Dr.] Beko, acted purposely, maliciously or intentionally to cause harm to Ms. Wang. Absent this proof, this type of conduct by the defendants, the plaintiff's claims fail as a matter of law.

In this case the plaintiff has provided no evidence to the court to support any of its theories and, therefore, the defendants' motion for summary judgment should be granted and the plaintiff's motion to enter default judgment is in fact denied because all of the allegations and arguments are without merit.

After summary judgment was granted, plaintiffs withdrew her claim against all other defendants.

On appeal, plaintiffs contend that Judge Ciccone: (1) abused her discretion in following our mandate; (2) abused her discretion by failing to enforce the Appellate Division order of May 17, 2005; and (3) abused her discretion by granting summary judgment without analyzing the plaintiffs' prima facie case. We disagree.

The core of plaintiffs' allegation is that the BMS defendants and related companies deliberately misled plaintiffs and their doctors about the cause of Wang's condition in order to avoid disclosure of dangers and hazards related to their pharmaceutical product under development. Plaintiffs alleged that "BMS' cover-up was to protect a potential blockbuster HIV inhibitor, Reyataz."

Plaintiffs argued that the Law Division improperly applied our July 2004 remand order; that "the trial court's dismissal predicated on the . . . [workers'] compensation law immunity . . . is arbitrary and capricious because no party, no witness, nor any doctor has stated that [plaintiff] sustained any job-related injury"; that "the trial court's denial of the plaintiffs' motion for default judgment was arbitrary and capricious . . . because the defendants offer[ed] no defense timely"; that "the trial court abused its discretion by failing to enforce [our] order of May 17, 2005"; and that summary judgment was improperly granted to defendants.

We have carefully examined the proofs in the record and conclude that the evidence presented by plaintiffs, viewed in the light most favorable to them, does not "unmistakably favor" them. We agree with Judge Ciccone that a fair-minded jury could not return a verdict for the plaintiffs because no evidence presented would permit a rational fact finder to resolve the "alleged disputed issue" in favor of plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). Thus, we affirm substantially for the reasons expressed by Judge Ciccone in her March 31, 2006 oral opinion.

Plaintiffs also contend that the judge erred by dismissing the complaint based upon "the New Jersey Workmen's Compensation Law immunity." N.J.S.A. 34:15-1. Specifically, plaintiffs argue that the judge's decision was arbitrary and capricious because no witness has stated that Wang sustained any job-related injury. We disagree.

It is well settled that "an employee's only remedy against his employer for a work related accident is workers' compensation; tort suits, . . . are therefore barred against the employer." Petrocco v. AT&T Teletype, Inc., 273 N.J. Super. 613, 615 (Law Div. 1994). The WCA created a bar to recovery in tort by workers injured in the scope of their employment with an exception made for an intentional wrong by the employer or their fellow employees. Basil v. Wolf, 193 N.J. 38, 54 (2007). However, Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161 (1985), delineated how elusive a finding of intentional behavior can be.

Although 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 possibility 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.]

Here, plaintiff's assertion that her claim against the BMS defendants falls within the intentional wrong exception, rests on theories that are unsupported by the proofs. Plaintiffs argue that discussions of the WCA is inapposite because "[t]here has been no evidence presented whatsoever that Ms. Wang was injured on the job by any party." However, it is clear to us that if Wang's injuries were caused by exposure at a worksite, and plaintiffs are unable to prove that the "intentional wrong" exception applies to this case, then their sole remedy is pursuant to the WCA.

In Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), the Supreme Court held that "intentional wrong" was not limited to a subjective desire or deliberate intent to injure, but rather also includes instances when the employer knows with substantial certainty that its action will result in harm to the employee. Id. at 613 (citing W. Prosser and W. Keeton, The Law of Torts, 80 at 569 (5th ed. 1984)). Therefore, the judge must make two separate inquiries: (1) whether 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; and (2) if the employee's allegations are proved, then the trial court must determine whether "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, supra, 170 N.J. at 623; see also Crippen v. Central Jersey Concrete Pipe Co., 350 N.J. Super. 313, 315 (App. Div. 2002), rev'd on other grounds, 176 N.J. 397 (2003) (holding that deliberate intent to injure or knowingly exposing an employee to risk is required before a plaintiff can overcome the exclusive remedy provision of the Workers' Compensation Act).

We conclude, once again, that plaintiff has not met her burden. Therefore, we affirm the grant of summary judgment dismissing her complaint.

Plaintiffs also contend that the denial of the motion for default judgment was arbitrary and capricious. We determine that this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


Identified in the complaint as "Yan Ping Wang/Fetus I Zhang (decedent) and Yan Ping Wang/Fetus II Zhang (decedent) as a collective unit."





June 9, 2008


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