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$7.5 million verdict upheld in 'dual persona' asbestos exposure suit

September 2010

On August 20, 2010, the New Jersey Appellate Division affirmed a multimillion-dollar take-home asbestos verdict against Exxon Mobil in its role as a premises owner in the case Anderson v. A.J. Friedman, 2010 N.J. Super. LEXIS 173 (App Div). The plaintiff, who worked at one of Exxon's facilities in New Jersey, had sued the company, claiming she developed the lung disease mesothelioma as a result of exposure to asbestos. There was evidence available that the plaintiff experienced dual, but separate, exposures to asbestos – as an employee of Exxon and/or as a spouse who laundered the work clothes of her husband, who also worked at Exxon.

 

Exxon had asserted the plaintiff's claim was strictly a workers' compensation matter stemming from her exposure to asbestos as an employee. Therefore, she should not have been allowed to bring a lawsuit citing the additional exposure from her husband's work clothes. Exxon had sought summary judgment on those grounds, which was denied by the trial court. In affirming the lower court's denial of Exxon's motion, the appellate court allowed an award of $7.5 million to the plaintiff to stand.

 

The appellate court agreed with the trial court that the plaintiff's dual persona, as an employee andas a spouse, permitted her to proceed against Exxon. In Olivo v. Owens Illinois, Inc., 186 N.J. 394 (2006), the New Jersey Supreme Court previously permitted a wife to assert a claim against a premises owner for injuries resulting from laundering her husband's asbestos-laden work clothes.

 

Importantly, the trial court found that, as long as Mrs. Anderson's exposure as a spouse was a substantial cause of her mesothelioma, the workers' compensation bar did not prevent her claim. If, however, the jury were to find that her exposure as an employee was the sole cause of her injury, the trial court instructed that a verdict for Exxon should be returned based upon the workers' compensation bar.

 

At trial, the plaintiff's expert testified that it was impossible to separate out which exposures caused the plaintiff's injury, and that each and every exposure to asbestos contributes to mesothelioma. The jury concluded that the asbestos brought home on Mr. Anderson's clothes was a substantial contributing factor in Mrs. Anderson's mesothelioma.

 

The Appellate Division also rejected Exxon's argument that it should be listed on the verdict sheet twice, allowing the jury to allocate Exxon's liability between Mrs. Anderson's exposure as a spouse and her exposure as an Exxon employee. The court reasoned that Exxon cannot be a party to a negligence action pursuant to New Jersey's workers' compensation system, and thus cannot be considered a joint tortfeasor for purposes of allocation.

 

For further information or assistance with toxic tort/asbestos litigation, please contact Joseph T. Hanlon via e-mail at joseph.hanlon@wilsonelser.com or Carolyn F. O'Connor at carolyn.oconnor@wilsonelser.com. They may also be reached in our New Jersey office at 973.624.0800.

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