New Jersey Supreme Court Opens the Door for Non-Spouses to Assert Claims “Take Home Exposures&
So far, 2016 has been a tough year for defendants in mass tort claims. The most recent example arises from a New Jersey Supreme Court ruling last week that plainly expanded the possibilities for “take home” claims by persons who are not spouses. In it, the court confronted certified questions about New Jersey precedent (Olivo) and recent federal court claims arising from a woman diagnosed with beryllium disease after living in an apartment with two males who worked in plants that used beryllium. She later married one of the two, and further exposure allegedly occurred through doing laundry, etc. She also alleged having done laundry for both before marrying one of the two.
The ruling is covered in detail in a July 8, 2016 article in the New Jersey Law Journal. See the article for more history and detail, but it explained the basics as follows:
“The July 6 ruling in Schwartz v. Accuratus came through a request by the U.S. Court of Appeals for the Third Circuit, which asked the court to settle a question of law. The Third Circuit asked the court to rule whether Olivo was limited to spousal relationships only. Justice Jaynee LaVecchia, writing for the court, said the issue could not be completely addressed in a question of law.”
“While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings. Our response to the question asked by the Third Circuit will have to be limited to clarifying that the duty of care encompassed by Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse. …LaVecchia also was the author of the ruling in Olivo.”
The article also provided some “local color” in the form of comments from lawyers on both sides of the issues:
“It’s an excellent opinion that expresses our interpretation of Olivo,” said Schwartz’s attorney, Ruben Honik. “It allows us to pursue the circumstances of our own case in the Eastern District of Pennsylvania,” said Honik, of Golomb & Honik in Philadelphia.
“The court did place some restrictions and did not say that Olivo should be fully as extended as the plaintiff sought in this case,” said Accuratus’ attorney, Joseph Harraka Jr. of the Cherry Hill office of Becker LLC. “It’s a fair compromise based on various factors that would be taken into consideration, such as foreseeability and fairness.”
Mr. Harrak’s comments for the defense reflect a fine effort to find some victory in a defeat. Other defense lawyers may want to borrow his analysis when other courts take up these issues.