Segal McCambridge Legal Blog

A divided Delaware Supreme Court has ruled against the wife of a former DuPont Co. worker in “take-home” asbestos exposure case on grounds that a “special relationship” did not exists and by drawing a distinction between misfeasance and nonfeasance.

The court, relying on its past decision in the Riedel v. ICI Americas Inc. 968 A.2d 17 (Del. 2009) ruled 3 to 2 on Monday that Patricia Price could not change a claim of nonfeasance against DuPont into a claim of misfeasance.

Plaintiff’s husband worked as a maintenance technician for E.I. du Pont de Nemours & Co. at its Chestnut Run, Delaware facility from 1957 until 1991. During his employment, Plaintiff’s spouse worked with and around products containing asbestos. Allegedly, Plaintiff’s spouse transported asbestos fibers home on his clothing, vehicle, and skin. Plaintiff alleges that years of living with her husband, exposure to the asbestos dust and fibers her husband brought home from work and handling and washing his work clothes, exposed her to the fibers and caused her to allegedly suffer from bilateral interstitial fibrosis and bilateral pleural thickening of the lungs.

The Delaware Supreme Court held that nonfeasance involves the failure to protect someone with whom you have a special relationship and to whom you owe a duty. Misfeasance involves a general affirmative duty to protect others against harm.

The Delaware high court said DuPont’s alleged failures to prevent Plaintiff’s spouse from taking asbestos fibers home on his clothing or to warn the Plaintiffs about asbestos do not support a claim of misfeasance. It also said Plaintiff’s nonfeasance claim must fail because DuPont had no special relationship with her and owed her no legal duty.

Some selected portions from the opinion:

Here, Mrs. Price’s allegations, stripped of all reformatory recharacterization, are that: (1) Mr. Price, an employee of DuPont, worked with and around products containing asbestos for 34 years, (2) asbestos fibers settled on his skin, clothing, and vehicle, (3) DuPont did not provide locker rooms, uniforms, or warnings to the Prices regarding the dangers of asbestos, (4) DuPont did not prevent Mr. Price from transporting the asbestos fibers home on his skin, clothing, and vehicle, and (5) Mrs. Price, because she lived with Mr. Price and washed his clothes, developed several diseases from her exposure to the asbestos he brought home from work.
These allegations generate a reasonable inference that DuPont wrongfully (negligently) failed either to prevent Mr. Price from taking asbestos home or to warn the Prices of the dangers associated with Mr. Price wearing his work clothes home. That, according to our Riedel opinion, is pure nonfeasance—nothing more.

As of July 13, 2011, the Delaware Supreme Court opinion can be found here

The oral argument in the Delaware Supreme Court can be heard here

On June 22, 2011, in a 2-1 decision, the Illinois Appellate Court for the Fourth District reversed a judgment against Honeywell and Abex, jointly and severally, in the amount of $1,543,361.66 in a household, secondary exposure case. Holmes v Pneumo Abex L.L.C., No. 4-10-0462 (June 22, 2011).

The background from the opinion:

In May 2006, plaintiff filed a complaint against defendants and others for the wrongful death of his mother, Jean Holmes. The complaint alleged decedent’s husband, Donald Holmes, worked at an asbestos plant operated by Union Asbestos & Rubber Company, later known as Unarco Industries, Inc. (Unarco). During his employment, Holmes was exposed to asbestos and brought the fibers home on his clothes and person, which exposed decedent to the asbestos. Decedent was diagnosed with mesothelioma, and she died in April 2006.

Plaintiff alleged defendants, along with Unarco, Johns-Manville Corporation (Johns-Manville), Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.) (Raybestos), Owens Corning, Owens-Illinois, and Metropolitan Life Insurance Company (MetLife), conspired to suppress information about the harmful effects of asbestos and refused to warn employees about the hazards of asbestos. Plaintiff claimed defendants’ agreements and acts done in furtherance thereof proximately caused decedent’s injury and death. Honeywell is the successor by merger to the Bendix Corporation (Bendix), which manufactured automotive brakes and brake linings. At the relevant times, brake linings, including those made by Bendix, were made with chrysotile asbestos. Bendix’s largest supplier of raw chrysotile was Johns-Manville. Abex is the successor to a variety of entities, the original being American Brake Shoe & Foundry Company. Abex made automotive brake products and brake linings with chrysotile asbestos.

In February 2009, plaintiff’s case proceeded to a jury trial. As the parties are familiar with the facts in this case, we will set forth only those facts necessary for the proper disposition of this appeal. The parties do not dispute that decedent developed peritoneal mesothelioma, which caused her death at age 93. Peritoneal mesothelioma has been associated with exposure to asbestos. It was also undisputed that decedent’s only exposure to asbestos fibers was on the work clothes of her husband, who worked at the Unarco manufacturing plant in Bloomington from 1962 to 1963. The asbestos was supplied to Unarco by Johns-Manville and Raybestos. It was undisputed that decedent and her husband were never exposed to any Bendix or Abex products.

Plaintiff presented evidence that showed multiple companies, including Johns-Manville, Raybestos, and Abex entered into a written agreement in 1936 with the Saranac Laboratory (Saranac agreement) to sponsor research on industrial dusts. The evidence showed an agreement among some of the companies to reduce or de-emphasize references to asbestosis in a 1935 asbestos industry study prepared by Dr. Anthony Lanza of MetLife; to have references to lung cancer in animals and asbestosis or cancer in humans deleted from a 1948 asbestos study prepared by Dr. Leroy Gardner and Dr. Arthur Vorwald of Saranac Laboratory and to keep the study and its underlying data from being disseminated to the public; and to prevent publication from 1935 to 1969 of any articles about the dangers of asbestos in Asbestos magazine.

Evidence showed Unarco, Johns-Manville, Raybestos, and Abex did not change their business practices concerning asbestos or attempt to warn their employees. Plaintiff also presented evidence as to the activities of Owens Corning and Owens-Illinois. Owens-Illinois received a 1948 report from Dr. Vorwald that concluded its asbestos-containing Kaylo pipe and block insulation was a potentially hazardous material and capable of producing asbestosis. In various journals, Owens-Illinois and Owens Corning sold Kaylo insulation stating it was “nonirritating” and “nontoxic.”

Plaintiff’s expert, Dr. Barry Castleman, a consultant specializing in toxic substances control, testified he had no information that Bendix was aware of communications that were taking place between Raybestos, Johns-Manville, and MetLife as to the study by Dr. Lanza. He was not aware of Bendix being involved in any effort to prevent Asbestos magazine from publishing articles about asbestos. Dr. Castleman had no knowledge that Bendix ever knew or approved of the Saranac agreement or that it had known about Dr. Gardner’s critical study. He also had no knowledge of any communication between Bendix and Owens-Illinois or Owens Corning.

Dr. Castleman testified Bendix was a member of the Friction Materials Standards Institute (FMSI), a trade organization made up of brake-lining manufacturers. Joel Charm testified Bendix and American Brake Shoe & Foundry Company had a single member of their respective board of directors in common from 1930 to 1934. Bendix and Johns-Manville also had a single member in common on their board of directors from 1959 to 1963.

William Dyson, an industrial hygienist, testified for defendants. He stated he prepared a bibliography of household exposure articles and listed a 1960 article by Dr. J.C. Wagner that spoke to mesothelioma as a result of take-home exposure to a family member.

Following closing arguments, the jury found for plaintiff and against both defendants. The jury assessed $2,632,611.66 in damages. The trial court later entered an amended judgment against defendants, jointly and severally, in the amount of $1,546,361.66. In May 2009, Honeywell and Abex filed posttrial motions, which the court denied. This appeal followed.

The Fourth District found that no relationship existed between the defendants and the decedent and thus, defendants owed no duty to decedent. The Fourth District analogized its decision in Holmes with the Second District’s decision in Nelson v. Aurora Equipment Co., 391 Ill.App.3d 1036, 1037, 909 N.E.2d 931, 933 (2d Dist.2009). The Holmes and Nelson opinions, however, are counter to the Fifth District’s opinion in Simpkins v CSX Corp., 401 Ill.App.3d 1109, 1119, 929 N.E.2d 1257, 1266 (5th Dist. 2010) which found a duty to individuals such as Mrs. Holmes. Simpkins is on appeal to the Illinois Supreme Court.

Further, the Holmes court stated that even if they were to find a relationship between the parties, there would be no duty because the danger of household exposure was not reasonably foreseeable until after decedent’s husband worked at the UNARCO plant. Plaintiff’s own expert, Dr. Castleman testified that the first epidemiological study applicable to “take-home” exposures was at the earliest the Newhouse and Thompson publication in October 1964.

In dissent, Justice Knecht indicated his agreement with the Fifth District’s opinion in Simpkins. The Justice stated, “One does not require an epidemiological study to recognize disease and death from asbestos exposure dating back to the nineteenth century.â€�

James Wylder of Wylder Corwin and Kelly represents the Holmes family and the case was tried in McLean County, located in the Fourth Appellate District.

As of June 30, 2011, the Holmes opinion can be found here

From the Madison Record

Illinois Supreme Court deciding ‘take home’ asbestos case; CSX says if allowed would create ‘unlimited universe’ of plaintiffs

SPRINGFIELD – Illinois Supreme Court Justices must decide whether to allow claims that asbestos caused disease in families of workers who brought fibers home on their clothing.

CSX Transportation seeks to reverse appeals judges who ruled that the railroad should have warned the late Annette Simpkins about hazards her late husband Ronald Simpkins brought home.

“The list of potential plaintiffs is endless,” Kurt Reitz, of Thompson and Coburn in Belleville, wrote for CSX in February.

He wrote that in asbestos litigation, “once a duty is recognized, it will quickly become a magnet for new attempts to expand its scope.”

Ronald Simpkins worked for B&O Railroad from 1958 to 1964.

He and Annette divorced in 1965.

In 2007, she sued CSX and 72 other companies in Madison County.

She blamed CSX for “take home” exposure, as successor to B&O.

CSX moved to dismiss, denying it owed any duty to warn families of employees.

Annette Simpkins died three months after suing, and Circuit Judge Daniel Stack substituted daughter Cynthia as plaintiff.

At a hearing, CSX argued that only appellate courts or legislatures can create new causes of action.

Stack dismissed the case and said, “It sounds like a great argument for the Supreme Court.”

Fifth District judges in Mount Vernon reversed Stack last year, finding B&O should have foreseen a risk to Annette while Ronald worked for the railroad.

“CXS argues that the B&O Railroad did not know of the dangers of take-home asbestos while Ronald Simpkins worked for it,” Justice Melissa Chapman wrote.

“The question, however, is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether, through reasonable care, it should have foreseen the risk,” she wrote.

“While apparently the likelihood of contracting mesothelioma or another asbestos related lung disease through take-home exposure varies depending on the duration of exposure, these cases also demonstrate that the likelihood of developing such a disease from anything more than incidental exposure is not remote,” she wrote.

“We do not believe that the issue of whether anyone other than a member of an employee’s immediate family is owed a duty is before us,” she wrote.

“Whether harm to any such person is foreseeable depends on an assessment of circumstances not presented in this case,” she wrote.

“While we do not expressly limit the duty to immediate family members, we decide today only that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure,” she wrote.

“Should a proper case arise, we can consider whether the duty extends to others who regularly come into contact with employees who are exposed to asbestos containing products,” she wrote.

“Duty is not the equivalent of liability; she must still prove a breach and proximate cause,” she wrote.

Justices James Donovan and James Wexstten concurred.

Reitz appealed to the Supreme Court, writing that the decision “creates a specter of massive liability to an unlimited universe of potential plaintiffs.”

He wrote that Simpkins died of lung cancer after smoking a pack and a half a day for 41 years.

Heath Hooks, a colleague of Reitz at Thompson Coburn in Belleville, also represents CSX.

So do Michelle Odorizzi of Chicago and Andrew Tauber of Washington, both with the firm of Mayer Brown.

John Barnerd and Amy Garrett, both of John Simmons’s firm in East Alton, and Charles Chapman of Lakin Chapman in Wood River, represent Cynthia Simpkins.

Here is the Madison Record article

From NWI.com

CROWN POINT | A Lake Circuit Court jury awarded nearly $31 million to the family of three boys who fell through the ice at Lake Holiday at Lakes of the Four Seasons nearly 10 years ago.

Andrew Kennedy, 11, died while his younger brother James, then 10, was left permanently brain-damaged.

Andrew’s twin brother, Christopher, fell through the ice first, prompting his brothers’ efforts to help. He survived.

The boys walked onto the ice the morning of March 11, 2001. The family filed the suit in March 2003 against the Lakes of the Four Seasons Property Owners Association.

Friday’s jury verdict may be a record, according to the family’s attorney, Timothy Schafer of Schafer & Schafer in Merrillville.

“I know of no other such award in the county,” Schafer said. “The importance of this is that James will be protected and get the care he needs.”

James has the capacity of a third- or fourth-grader and requires daily care, according to trial testimony.

Opposing attorney Daniel Glavin could not be reached for immediate comment after the verdict, but Schafer said Galvin was hired by the company insuring the LOFS Property Owners Association.

The insurance company will be responsible for the entire amount — not the POA — because the insurer opted to forgo a settlement offer in which the family would have accepted the policy’s cap of $6 million, Schafer said.

At issue was the role of an overflow crib in the lake that maintains the level of the lake.

Excess lake water flows into the crib where a pipe drains the water into a creek on the other side of an earthen dam.

The boys, who had tested the ice by throwing rocks into the lake before walking on the ice, fell into the ice some 30 feet from the crib, where water was flowing under the ice but could not be seen, Schafer said.

During closing remarks Friday, Schafer told jurors, “This is a case about the safety of children.”

Schafer charged LOFS with failing to post a warning about potential danger, failing to restrict access and failing to provide safety equipment.

The tragedy could have been prevented by the $70 cost of a warning sign and a rope pulley with which the boys may have been able to save themselves, he said.

Schafer told jurors the community violated dam safety protocol in use for 50 years in the U.S. and Canada.

Ten years later, no warning, restrictions or safety equipment marks the location where the overflow crib may compromise safety, he said.

Glavin argued the circulating water did not play a role in compromising the integrity of the ice. The boys fell in because of changing temperatures to the ice, he said.

Glavin told jurors the tragedy had nothing to do with the crib.

“Ice is dangerous no matter where it is,” Glavin said.

Ice is unpredictable and inconsistent, he said.

Glavin argued there was no reason for the POA to know of a potential problem since neither the LOFS Fire Department nor the DNR had been called to the area in at least 25 years.

“Nobody ever had a problem in that area before,” he said.

As of 2/25/11, the article can be accessed here

Illinois lawyers might get new asbestos theory

From Legal Newsline.com

SPRINGFIELD, Ill. (Legal Newsline) – A coming ruling from the Illinois Supreme Court could offer asbestos attorneys with a new group of plaintiffs.

Insurers, business groups and tort reform associations recently filed an amicus brief in a lawsuit that alleges secondhand exposure. The plaintiff is the estate of a woman who alleged she was exposed to asbestos fibers caught on her husband’s clothes when he came home from working at a railroad company.

Former Madison County Judge Daniel Stack dismissed the case, but the Fifth District Appellate Court reversed the decision. The decision made no determination if the railroad breached its duty to prevent Annette Simpkins, who died of mesothelioma in 2007, from being exposed to asbestos, only that Simpkins’ case could proceed with her claim that the company did.

If the appellate court’s decision is affirmed, “Illinois employers would be subject to potentially limitless and indefinite liability, needlessly prolonging the asbestos litigation and adding to the already huge number of Illinois filings,” the brief says.

The case is an example of asbestos attorneys crafting new legal theories to sustain asbestos litigation, the brief says. It adds that the highest courts of Delaware, Georgia, Iowa, Michigan and New York have rejected “take-home” exposure claimants.

“Claims such as the instant appeal are generally failing across the board because courts and legislatures have appreciated that allowing a new cause of action against landowners by remote plaintiffs injured off-site would be inconsistent with traditional duty rules and worsen the asbestos litigation,” the brief says.

Among the organizations signing the brief are the Illinois Civil Justice League, the American Tort Reform Association, the National Association of Mutual Insurance Companies, the National Association of Manufacturers and the U.S. Chamber of Commerce. Legal Newsline is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

The Fifth District sided with the plaintiff in a decision filed June 10. CSX Transportation is the defendant, after having taken on the liability responsibilities of B&O Railroad after the two merged.

“Whether a relationship exists between the parties that will justify the imposition of a duty depends on four factors: (1) the foreseeability of the harm, (2) the likelihood of the injury, (3) the magnitude of the burden involved in guarding against the harm, and (4) the consequences of placing on the defendant the duty to protect against the harm,” the decision says.

“Our determination of duty is informed by public policy considerations. As a matter of public policy, it is best to place the duty to protect against a harm on the party best able to prevent it. Applying these principles, we find the out-of-state cases that have found a duty in similar circumstances to be more persuasive than those that have not.”

The Fifth District said it was most persuaded by decisions in Tennessee and New Jersey.

“The question… is not whether the employer actually foresaw the risk to Annette Simpkins; rather, the question is whether through reasonable care, it should have foreseen the risk,” the decision says.

From the Courier Journal.com

In a lawsuit filed 14 years ago, a Floyd County jury has awarded $23.5 million to a New Albany family for severe illnesses to two children caused by a pesticide that was sprayed in their Prestwick Square apartments unit in the mid-1990s.

The award came Thursday in a trial that didn’t begin until Aug. 17, following years of motions and delays. It is expected to be appealed.

Todd and Cynthia Ebling and their children, Christina, then 2 years old, and Alex, then 6 months old, moved into Prestwick Square in February 1994. Soon, both children began to suffer seizures and other neurological problems.

According to the Eblings’ attorneys, the children’s problems were caused by exposure to Creal-O, a chemical based on the pesticide Diazinon. The Environmental Protection Agency banned the pesticide from residential use in 2004.

The Floyd Superior Court jury that heard the case, with Judge Susan Orth presiding, awarded $500,000 each to Todd and Cynthia Ebling, $16 million to Christina Ebling and $6.5 million to Alex Ebling.

Projected future medical costs for Christina are about $14 million, Pardieck and co-counsel Matthew Schad said. But they said it would likely be a long time before any money changes hands because of anticipated appeals.

The story can be found here

The 5th District of Illinois decision of Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill. App. June 10, 2010), overturned the dismissal of a case brought by the estate of the wife of a worker who allegedly brought home asbestos on his clothes and body, causing the wife to be exposed. The wife contracted mesothelioma and her estate sued the worker’s employer. The court discussed general duty principles, stressing foreseeability. The 5th District followed decisions from Tennessee and New Jersey, but did not discuss opposing cases from elsewhere including two appellate cases from the 1st and 2nd Districts of the Illinois Appellate Court.

In 2009, the 2nd District of Illinois issued its decision in Nelson v. Aurora Equipment, 909 N.E.2d 931 (2nd Dist. 2009) In this case, the plaintiffs, Vernon Nelson and John Nelson were the special administrators of the estate of Eva Nelson, deceased. The plaintiffs appealed from an order of the circuit court of Kane County granting summary judgment in favor of defendant, Aurora Equipment Company. As noted in the opinion, this was a case of first impression in Illinois, specifically where the plaintiffs sought an extension of duty in a premises liability case to a person who did not have contact with the premises but who was allegedly injured by asbestos fibers and dust that escaped from the premises. The 2nd District declined the invitation and affirmed the judgment of the circuit court.

In 2008, the 1st District in Gregory v. Beazer East, 892 N.E.2d 563 (1st Dist. 2008) affirmed summary judgment on behalf of a premises owner. In Gregory, the plaintiff brought failure to warn negligence action against manufacturer of joint compound and owner of oil refinery after her husband, a pipe fitter died from mesothelioma due to exposure to asbestos. The Appellate Court held that the owner of refinery did not retain the degree of control over pipe fitter’s work necessary to owe a duty to warn pipe fitter, employed by independent contractors, of asbestos exposure; the owner of refinery did not breach duty it owed to invitees to use reasonable care to maintain its premises in a reasonably safe condition.

Eads and Atterholt v. Community Hospital, a 5-0 decision written by retiring Justice Boehm:

A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey’s Account Statute.

The opinion is here

9/9/10 Update: Legalnewsline.com has a story on this case here

On August 31, the Washington Court of Appeals found that a genuine issue of material fact existed in a case involving the premises owner, Lockheed, and its control over the “common area” and the safety and work of its subcontractors and reversed a grant of summary judgment in a case involving a deceased asbestos insulator.

Marjorie Arnold and her son Daniel, appealed the trial court’s order granting summary judgment to Lockheed. The Arnolds sued Lockheed after Reuben Arnold (Marjorie’s husband and Daniel’s father) died from mesothelioma. Reuben Arnold had been an union asbestos insulator from the mid-1950s until his retirement in 1987. He was never an employee of Lockheed.

Together with Reuben’s claims stemming from his work as an insulator at Lockheed’s shipyard, the Plaintiffs asserted injuries from “take home exposure�—i.e. exposure to asbestos that Reuben brought home on his clothing. Additionally, Daniel asserted a primary exposure claim against Lockheed based on his work as an insulator at Lockheed’s shipyard.

The Court of Appeals affirmed the trial court’s grant of summary judgment to Lockheed with regard to Daniel’s primary exposure claim but reversed with regard to the Plaintiffs’ other claims. Specifically those other claims involving the Plaintiffs contention that Lockheed owed them a duty to ensure a safe workplace as the general contractor at the Seattle shipyard and that it had a statutory obligation to provide a safe workplace. Further, the Plaintiffs argued that Lockheed is liable because Reuben was an invitee on Lockheed’s premises.

The Court of Appeals concluded that the Plaintiffs presented a genuine issue of material fact with regard to whether Lockheed owed Reuben a duty both as a landowner and as a general contractor.

The opinion is here

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