Karen Kidd Jul. 27, 2016, 10:18am


TRENTON, N.J. – A New Jersey Supreme Court decision reported to extend company responsibility for employees exposed to potentially hazardous material to include their housemates is more subtle than has been widely reported, an insurance attorney says.

"It is important to note what the court did not decide," Kevin J. Bruno, a partner and chair of the Insurance Coverage Practice Group of Blank Rome in New York City, told the Pennsylvania Record.

"It did not decide that the defendant was liable for the take-home toxin theory of liability being alleged by plaintiffs. The court’s ruling was actually very limited in nature, responding to the Third Circuit’s question regarding whether such liability could be extended beyond an employee’s spouse."

The New Jersey Supreme Court handed down its ruling in the case, Schwartz v. Accuratus Corp., July 6, widening liability based on the so-called "take-home toxic-tort" theory. Prior to the state high court's ruling, liability in take-home toxic-tort had been limited to harm to workers' spouses.

The New Jersey court issued its ruling at the request of the U.S. Court of Appeals for the Third Circuit in the case of a Pennsylvania woman, Brenda Ann Schwartz, suing a Warren County ceramics company that had employed her husband and a roommate.

In her lawsuit filed in 2012, Schwartz alleged her chronic beryllium disease was triggered by exposure to a hazardous substance when she laundered her husband's clothes and from living in the same apartment with her husband and roommate during the late 1970s and early 1980s.

The case initially had been thrown out because Brenda and Paul Schwartz were unmarried and, technically, were not living living together when Paul Schwartz was employed at Accuratus Ceramic Corporation. Brenda Schwartz argued she often visited Paul Schwartz's apartment before the two married, doing laundry and other chores. She also claimed she continued to be exposed to beryllium after the two wed because their roommate was employed at Accuratus.

The New Jersey Supreme Court responded to the Third Circuit’s query by clarifying the duty of care established in the Olivio case, specifically that it may extend to a plaintiff who is not married to an employee exposed to hazardous materials.

"The reasoning behind that response is not necessarily surprising," he said.

"Just as we’ve seen in other contexts, the court made clear that its prior holding in the Olivio case was never intended to limit the potential liability of an employer to a ‘spouse.’

"Essentially, the court was saying such liability has nothing at all to do with labels, which frankly makes sense if one were to consider whether a different outcome would have been seen in Olivio if the spouse were instead a live-in girlfriend for several decades or a partner in a same-sex relationship."

In that context, the court’s decision to discard the "spouse" label as a defining part of the liability analysis is understandable, Bruno said.

"The concern that I have is, once we move away from labels, do we find ourselves going down a path where the foreseeability piece of the analysis, which the court acknowledged is critical, starts to be whittled away?" he said.

Some defendants in asbestos cases may need to worry about this decision, Bruno said.

"Much of that will depend on how the Third Circuit, and likely the district court later, evaluate the facts of this case with the N.J. Supreme Court’s response in mind," he said. "In that regard, it is interesting to see the court recognized that no other court in the US had extended this take-home theory of liability beyond the household setting."

Bruno pointed out the state high court noted that chance contact with a worker transporting home a toxic substance from another’s premises should not suffice to create a duty of care.

"To me, the question that remains is whether these comments were cautionary statements designed to place some brackets around the intended scope of the court’s ruling, or rather as a warning that this theory of liability could stretch beyond the typical household setting to include such individuals as frequently invited guests," Bruno said.

"I would like to think the latter is not where we are headed, especially because this is not a particularly socially active court, certainly not like some of the NJ Supreme Courts we have seen in the past. Nevertheless, the idea that this decision might be signaling a move to broaden this theory of liability to encompass non-family members and perhaps even move beyond the household setting is a scary proposition for employers."

The case may also have ramifications beyond the Third Circuit, Bruno said.

"This court is well regarded in its jurisprudence, particularly in the toxic tort and product liability areas," he said. "As such, I would expect that courts in other jurisdictions, which certainly would include those in the Third Circuit, will make note of the court’s holding in deciding how take-home toxin theories of liability should be applied and perhaps expanded going forward."

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