JEANETTE BLACKSHEAR v. SYNGENTA CROP PROTECTION, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JEANETTE BLACKSHEAR, As

Administratrix of the ESTATE

OF KEITH BLACKSHEAR (Deceased),

JEANETTE BLACKSHEAR, Individually,

and JEANETTE BLACKSHEAR, As

Guardian Ad Litem for BRYONNA

BLACKSHEAR and KEITH BLACKSHEAR,

Plaintiff-Appellant,

v.

SYNGENTA CROP PROTECTION, INC.,

SPECKOZ, INC., WHITMIRE MICRO-GEN

RESEARCH LABORATORIES, INC., SANDOZ

AGRO, INC., PRENTISS INCORPORATED,

BAYER ENVIRONMENTAL SCIENCE, BELL

LABORATORIES, LIPHATECH, INC.,

WELLMARK INTERNATIONAL, DOW

AGROSCIENCES, ENVIRONMENTAL HEALTH

PRODUCTS, and JT EATON & CO., INC.,

Defendants,

and

CORBETT EXTERMINATING,

Defendant-Respondent.

_______________________________________

October 6, 2014

Argued May 21, 2014 Decided

Before Judges Grall, Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket

No. L-1659-09.

Joseph D. Monaco argued the cause for appellant (Rinaldo Law Firm, attorneys; Richard P. Rinaldo, on the briefs; Jeff Thakker, on the brief).

H. Lockwood Miller, III, argued the cause for respondent (Goldberg Segalla, LLP, attorneys; Mr. Miller, of counsel and on the brief; Leah A. Brndjar, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Keith Blackshear was a New Jersey licensed exterminator employed by defendant Corbett Exterminating. Following Blackshear's death from brain cancer in 2007, his wife, plaintiff Jeanette Blackshear, brought a wrongful death and survivorship action against several pesticide manufacturers and Corbett. Plaintiff appeals from the entry of summary judgment dismissing her complaint against Corbett pursuant to the exclusivity bar of the Workers Compensation Act, N.J.S.A. 34:15-1 to -128.5. Because we agree that plaintiff's proofs were insufficient to establish the intentional wrong exception to the exclusivity bar as a matter of law, we affirm.

The essential facts can be briefly summarized. Blackshear worked for Corbett as an exterminator from 1995 until 2006. He was licensed by the State of New Jersey, Department of Environmental Protection, as a commercial pesticide applicator, certified in the areas of CORE or general, ornamentals and turf, termites and other wood destroying insects, and general and household pest control. Blackshear participated in the State's certification program "designed to facilitate, demonstrate, and maintain an acceptable competency in the safe use of pesticides by certified pesticide applicators," passed the required examination to obtain his commercial pesticide applicator license and maintained his certifications through required recertification courses provided six or seven times a year by Corbett.

Corbett provided Blackshear with the material safety data sheets and labels for the pesticides used by the company1 and a variety of personal protective equipment, including latex gloves, rubber gloves, Tyvex coveralls, shoe coverings, goggles, respirators and caps.2 Corbett also provided its employees with daily laundry service so that they were not required to launder their uniforms at home with other clothes. Numerous employees testified at deposition that Blackshear followed the safety protocols of the pesticide labeling and instructed other employees to do the same. It is undisputed that no other Corbett employee in the thirty-four year history of the company had ever made a claim arising out of occupational exposure to pesticides.

Blackshear first fell ill in 2001. He complained of wheezing and was diagnosed with "probable sarcoidosis."3 In 2004, doctors implanted an automatic implantable cardioverter defibrillator to treat a heart arrhythmia. In November 2006 he was admitted to the hospital following a series of headaches and hallucinations. Doctors discovered a cancerous tumor in the right temporal lobe of his brain. He underwent surgery to remove the tumor, but by January 2007 a new tumor had appeared in the same place. Surgeons again operated and Blackshear subsequently underwent radiation therapy. He succumbed to his illness in February 2007.

Plaintiff submitted several expert reports causally connecting her husband's death to the pesticides to which he was exposed at Corbett, particularly Dursban4. Although acknowledging that it is not possible to "determine prospectively just when and exactly which members of the population will be affected" by exposure to certain chemicals, plaintiff's experts opined that Blackshear's fatal brain tumor was to a reasonable degree of medical certainty "caused or contributed to be caused by his exposures to pesticides and/or their 'other' (or 'inert') ingredients." Plaintiff's experts further opined that gloves are recommended when handling pesticides and that of various glove types, "natural rubber shows the least resistance to permeation." The experts also cited studies concluding "that latex gloves were predominantly least effective and if alternatives exist, latex gloves should not be used as protective gear against pesticides."

Although Corbett disputed the link between Blackshear's cancer and his exposure to pesticides at work, its focus on summary judgment was elsewhere. Corbett contended on summary judgment that the overwhelming evidence in the record demonstrated that Corbett provided safety training, product labeling and material safety data sheets to Blackshear as well as personal protective equipment, and thus plaintiff could not prove the intentional wrong required to vault the exclusivity bar. Plaintiff countered that, viewing the evidence and inferences most favorably to her, as required, there was sufficient evidence for a jury to find that Corbett deliberately deceived Blackshear into believing that the personal protective equipment he was provided was adequate to protect him from the pesticides he was applying, thus constituting an intentional wrong.

Following oral argument, the judge ordered supplemental briefs on the issue of whether Corbett issued personal protective equipment to Blackshear. Following review of those submissions, the court issued a written decision granting summary judgment and dismissing plaintiff's complaint against Corbett with prejudice.5 After reviewing the summary judgment standard and plaintiff's burden to prove intentional wrong under Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 170 (1985), the judge turned to what plaintiff needed to show on the motion. The judge wrote

For an employer to lose immunity it is provided under the [workers' compensation] statute, a plaintiff must show "(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize." Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 617 [(2002)].

The judge found that

Corbett produced evidence in the form of multiple depositions of current and former Corbett employees who testified to the various types of protective personal equipment provided to its employees. Even after allowing supplemental briefing on the subject, Plaintiff[] still [has] failed to offer evidence showing that no protective equipment was provided. Instead, Plaintiff[] continue[s] to argue that Corbett should have provided different equipment to its employees. The argument that Corbett should have provided different protective equipment is not sufficient to overcome the workers' compensation bar. Since Corbett did provide protective equipment to its employee Blackshear, and there is no evidence in the record to suggest otherwise, Corbett did not act in a way knowing substantial injury or death to its employee could result, and therefore the intentional wrong exception to the workers' compensation bar is inapplicable.

On appeal, plaintiff contends that "Corbett 'equipped' Mr. Blackshear with a false sense of security as he confronted a known cancer hazard," and that the judge erred in failing to comprehend "how the record, when viewed in a light most favorable to plaintiff, met the 'conduct' prong" of Millison and Laidlow. Plaintiff also contends that she established the context prong for purposes of summary judgment. We disagree on both points.

We review summary judgment using the same standard the trial court used. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Our task, then, is to determine whether the evidence, viewed in the light most favorable to plaintiff and according her all legitimate inferences, presents a sufficient disagreement to warrant submission of the matter to a jury or "whether it is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

Although the Workers' Compensation Act ordinarily provides the exclusive remedy for injuries sustained by employees in the course of employment, N.J.S.A. 34:15-8 allows relief from the exclusivity bar in cases of intentional wrong. Van Dunk v. Reckson Assocs. Realty Co., 210 N.J. 449, 458-59 (2012). The Supreme Court in Millison held that an intentional wrong occurs when the employer possesses a "substantial certainty" that harm will result from an action. The Court explained that

"the mere knowledge and appreciation of a risk something short of substantial certainty is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if

the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong."

[Millison, supra, 101 N.J. at 177 (quoting W. Prosser and W. Keeton, The Law of Torts, 8 at 36 (5th ed. 1984)).]

The Court reiterated the essential holding of Millison in Laidlow and reaffirmed the now familiar two-prong test applied by the trial court. Laidlow, supra, 170 N.J. at 617.

More recently, in Van Dunk, the Court again expressed its continued allegiance to Millison's holding "that the plaintiffs' claim of intentional exposure to asbestos in the workplace failed to meet the substantial-certainty threshold because such hazards were considered within the risks the Legislature contemplated in passing the Act." Van Dunk, supra, 210 N.J. at 461. The Court in Millison allowed plaintiffs to sue in tort only for their employer's fraudulent concealment of asbestos-related diseases already developed. Millison, supra, 101 N.J. at 182. The Van Dunk Court explained that it had in Millison "noted a distinct and distinguishing 'difference between . . . tolerating in the workplace conditions that will result in a certain number of injuries or illnesses . . . and . . . actively misleading the employees who have already fallen victim to those risks of the workplace.'" Van Dunk, supra, 210 N.J. at 461 (quoting Millison, supra, 101 N.J. at 182). Thus in the context of workplace exposure to hazardous chemicals or substances, "failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease" remains insufficient to vault the Act's exclusivity bar. Millison, supra, 101 N.J. at 182.

The claim of the plaintiffs' complaint the Millison Court found barred by the Compensation Act's exclusivity bar alleged that the defendants "knew or should have known of the dangers associated with asbestos exposure, that they therefore had a duty to inform plaintiffs and to protect them from those dangers, but that they nonetheless acted intentionally to conceal from plaintiffs all information regarding the health hazards of asbestos." Millison, supra, 101 N.J. at 168. Excepting the identity of the hazardous substance, these are precisely the allegations plaintiff makes against Corbett. That plaintiff characterizes Corbett's failure to protect Blackshear from the known hazards of the pesticides he was applying as "deceiving" him into using inadequate personal protective equipment, does not change the nature of the allegation.

Plaintiff's proofs, viewed indulgently, at most demonstrate that Corbett, by providing Blackshear inadequate personal protective equipment, knowingly exposed him to cancer-causing pesticides and concealed that information from him.6 Those proofs are insufficient, as a matter of law, to meet the conduct prong of the substantial-certainty test. As the Court explained in Millison

Although defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees' health, . . . 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.

[Millison, supra, 101 N.J. at 179.]

As the Court has noted, "[d]espite the fact that in some instances it is an obviously unattractive solution to preclude workers . . . 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." Millison, supra, 101 N.J. at 181.

Although plaintiff's failure to satisfy the conduct prong is dispositive, we address her proofs on the context prong for completeness and likewise find them inadequate. The Millison Court added the context prong to "reinforce the strong legislative preference for the workers' compensation remedy." Van Dunk, supra, 210 N.J. at 473. The context prong can only be overcome when

the court, as the gatekeeper policing the Act's exclusivity requirement, [finds] that as a matter of law an employee's injury and the circumstances in which the injury is inflicted are "plainly beyond anything the [L]egislature could have contemplated as entitling the employee to recover only under the Compensation Act."

[Ibid. (quoting Millison, supra, 101 N.J. at 179).]

Plaintiff was a licensed exterminator. Many, if not most, pesticides are poisonous and their use poses a substantial risk of harm. That risk of harm is undoubtedly one of the reasons the State requires commercial pesticide applicators to be licensed and obtain periodic recertification to "demonstrate, and maintain an acceptable competency in the safe use of pesticides." It also is the reason the federal government requires the promulgation of material safety data sheets and extensive product labeling for pesticides.

The Legislature amended the Compensation Act in 1924 to add nine named occupational diseases to its coverage: anthrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorus poisoning, poisoning from all homologues and derivatives of benzine, wood alcohol poisoning, chrome poisoning, and caisson disease. Millison, supra, 101 N.J. at 174-75. The Compensation Act has since been amended to more broadly define compensable occupational disease to "include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." N.J.S.A. 34:15-31. The Court has noted that "the express inclusion of occupational diseases as part of the Compensation Act reflects a general awareness of potentially-hazardous conditions in the workplace that may result in debilitating diseases necessitating compensation." Millison, supra, 101 N.J. at 175-76.

Assuming as we do for purposes of the motion that Blackshear's brain cancer was as a result of his exposure to pesticides at work due to inadequate personal protective equipment, we cannot conclude that such was "plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act." Id. at 179. Guided by the Legislature's deliberate inclusion of occupational diseases in the Compensation Act and the Court's continued adherence to Millison, we conclude that such exposure may instead "fairly be viewed as a fact of life of industrial employment," for which the quid pro quo recovery under the Compensation Act was designed. See Millison, supra, 101 N.J. at 174 (explaining the quid pro quo of the Compensation Act to be "that employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially larger recovery in a common-law action").

Affirmed.

1 Plaintiff submitted the certifications of two unlicensed former employees of Corbett averring that they never saw a material safety data sheet while working at the company. When later deposed, however, neither of these employees could testify as to whether binders containing material data sheets were maintained in the company's trucks as other current and former employees had testified.

2 Several people testified that employees of Corbett, including Blackshear, also regularly used dust masks. Whether Corbett provided dust masks to employees, and, if so, over what period, was disputed by the parties.

3 Sarcoidosis is a chronic disease of unknown cause characterized by the abnormal growth of inflammatory cells, most commonly in the lungs or lymph nodes. Stedman's Medical Dictionary 1719 (28th ed. 2006).

4 The record reveals that Dursban was a widely used pesticide until 2000, when it was withdrawn for most household uses by consent of the manufacturer. Nothing, however, prohibited sale or use of existing product. Plaintiff's expert noted that Dursban last appeared on a list of chemicals used at Corbett in 2001. The same expert notes that use of chlorpyrifos containing products such as Dursban for structural termite control was not prohibited until December 31, 2005. Although plaintiff asserts in her brief that "Corbett . . . knew that Dursban and Dursban products were not to be used and used them anyway," there is no proof in the record of any illegal use of Dursban by Corbett.

5 Although the order granting summary judgment was entered on October 9, 2012, it did not become appealable as of right until March 14, 2013 when a stipulation of dismissal with prejudice was entered against the last of the defendants.

6 Because there is no dispute that the products Blackshear applied were labeled, it is difficult to see how any alleged inadequacy of personal protective equipment was concealed from him.