Segal McCambridge Legal Blog

On August 20th, the New Jersey Appellate Division affirmed a $7.5 million verdict against ExxonMobil (”Exxon”) in a take-home and occupational asbestos exposure case involving the spouse of an employee who was also employed by Exxon.

In a unique exposure setting, Plaintiff Bonnie Anderson (who was diagnosed with peritoneal mesothelioma) was allegedly exposed to asbestos from laundering the asbestos-contaminated clothing of her husband who worked at the Exxon Bayway Refinery in New Jersey from 1969 to 2003. Ms. Anderson also claimed first-hand exposure to asbestos during her employment with Exxon between 1974 and 1986.

Of note, Exxon moved for summary judgment, arguing that plaintiffs’ claims were barred by the exclusive remedy provisions of the Workers’ Compensation Act (WCA), N.J.S.A. 34:15-1 to -69.3. The trial court Judge denyied the motion without prejudice. After the close of discovery, Exxon moved for summary judgment again, renewing its argument that plaintiffs’ claims were barred by the WCA. Again, the judge denied the motion in a January 12, 2007 oral decision.

At the end of the “first” trial, the jury found that: plaintiffs had proven that Bonnie has “asbestos related Peritoneal Mesothelioma;” Exxon breached a duty owed to Plaintiffs; Exxon’s breach was a proximate cause of Bonnie’s disease; Bonnie was awarded $500,000 in compensatory damages. The jury did not award John damages for past and future loss of consortium. There was an immediate trial on punitive damages before the same jury. The jury awarded no punitive damages. At which point the Plaintiffs moved for a new trial on damages or, in the alternative, for additur, and the trial court granted a new trial on damages. The Appellate Division denied Exxon’s motion for leave to appeal. Exxon moved for a new trial on all issues. The trial court denied that motion. Finally, the Appellate Division denied Exxon’s motion for leave to appeal as to the all issues trial denial.

In the second trial on damages, the jury heard from plaintiffs, Taub, and Mary Hesdorffer, a nurse practitioner involved in Bonnie’s care. Exxon presented Dr. Allen Robert Gibbs, an expert in pathology and in the clinical course and survival of women with mesothelioma. Neither Hesdorffer nor Gibbs had testified at the previous trial (in the first trial, Plaintiffs had called Dr. Jacqueline Moline, M.D and Barry Castleman, Ph.D.. Exxon had called Dr. Gerald Kerby, Dr. Gerhard Raabe and William Dyson).

The second “damages only” jury awarded Bonnie Anderson $7 million and John Anderson $500,000. The judgment ordered prejudgment interest of $1,717,397.26 for Bonnie and $122,671.23 for John, and post-judgment interest.

Exxon appealed, arguing that the exclusive remedy provisions of the WCA barred plaintiffs’ recovery and that the judge erred in several evidentiary rulings and by granting plaintiffs’ motion for a new trial on damages while denying Exxon’s motion for a new trial on all issues.

The Appellate Division rejected all of Exxon’s contentions in affirming the judgment.

The decision in .pdf format is here

Roche Holding AG won reversal of a $10.5 million verdict over its Accutane acne drug because a judge improperly barred the company from using evidence about the medication’s use, an appeals court ruled.

Roche’s lawyers should have been able to use data about how many acne sufferers had used Accutane over the years throughout Kamie Kendall’s 2008 trial of her lawsuit over the drug, the New Jersey Superior Court Appellate Division ruled today. The decision prompted a judge in Atlantic City, New Jersey, to delay the trial of an actor’s suit alleging the medication causes inflammatory bowel disease.

“Roche was unduly impeded at this trial from adducing and advocating numerical proofs that could have potentially and reasonably led a jury to reach a different verdict,� the appeals court said in an 89-page unpublished decision.

The unpublished opinion from the Kendall v, Hoffman-La Roche, et al., case can be found here

A story on this decision from Bloomberg News can be found here