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Cooke v. Wilentz

Decided: December 21, 1992.


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Michels, Havey and Conley. The opinion of the court was delivered by Conley, J.A.D.


Plaintiff appeals a final judgment dismissing his complaint against defendant for legal malpractice. He had sued defendant for its failure to timely file a toxic tort personal injury lawsuit against the manufacturer of certain products he was exposed to at his workplace. Following the completion of plaintiff's case at a Lopez*fn1 hearing, the trial Judge concluded the statute of limitations had expired prior to plaintiff's retention of defendant and granted defendant's motion for "a directed verdict." We reverse.

Plaintiff Glenn Cooke worked for Jersey Central Power & Light Company for thirty-five years before his retirement in 1986. During his tenure he worked primarily in auto body repair and painting. In the early or mid-1970's plaintiff started having reactions after exposure to certain of the painting products he worked with. The reactions consisted of shortness of breath that would last two to four hours, and occurred when plaintiff mixed Imron paints two or three times per week.

During his workers' compensation trial in October 1981, plaintiff acknowledged he had first started to notice the reactions "I would say several years ago, maybe four, five years ago when we were exposed to the new product from Dupont called Imron, and, in fact, I don't -- I stopped using Imron for some time because it affected me so badly." But as he explained during the Lopez hearing when asked if he was aware at that time of a relationship between his episodic reactions to the chemical and a particular medical condition:

No, I wasn't, because I worked with so many products that might cause temporary -- whatever you would call it -- you'd step outside and get some fresh air or it would pass. But, you see, in 1980, '81, I felt I had a persistent problem that wasn't going away . . . .

And so, in 1980, after seeing his family doctor several times because the problem had become more persistent, plaintiff concluded "this is more than just an occasional thing." As he testified, he suspected the problem "might be work related." His request to see a company doctor was denied, according to plaintiff because he did not work with "hazardous materials."

Plaintiff then sought legal advice and retained the firm of Wilentz, Goldman & Spitzer (defendant) in February 1981. A worker's compensation action was filed in May 1981, which described plaintiff's injury as "chronic obstructive pulmonary disease" resulting from exposure to "lacquers, paint thinners, toluene, various plastic resin compounds and enamel reducers."*fn2

In connection with this claim, plaintiff saw several doctors. Dr. Rowland Goodman examined plaintiff on May 6, 1981 and recorded the following:

It is my opinion that there is a causal relationship between the plaintiff's present pulmonary condition and the exposure [to the chemicals listed on the claims petition].

In July 1981 plaintiff was treated by Dr. Daniel Markowitz who made a diagnosis of probable mild industrial asthma. In his report, the doctor observed there was "very little question from this man's history that he is becoming sensitized to one of the chemicals that he works with." When plaintiff was subsequently examined by Dr. Paul Friedman, an associate of Dr. Markowitz, in March 1983, Dr. Friedman wrote to his employer:

Recently Mr. Glen Cooke has returned to see us in our office. He is a 51 year old man who states that he has noticed for the last five or six years shortness of breath, wheezing and chest tightness after exposure to the various fumes that are encountered during his job. Although he does not know all the chemicals involved he has identified Toluene, Diisocyanate as one of the chemicals. Diisocyanate is now well known to be toxic to human lung. Mr. Cooke first came to see us in July 1981 complaining of the above symptoms and at that time our [sic] physical exam he appeared completely normal. Pulmonary function tests were done which measured his lung function and these too proved to be normal. Mr. Cooke states that since then he has tried to avoid these fumes while at work but reports that he still came in contact with them. He states that his respiratory symptoms have become gradually but progressively worse and in addition notes that he finds that his lungs are now sensitive to many other substances which never seemed to bother him before. For example he finds that fumes from automobiles or buses and various pollens now cause him to get shortness of breath and wheezing. Mr. Cooke returned to my office in February 1983 and on physical exam then wheezing in the lungs were noted. A pulmonary function test was then obtained which showed a mild but significant decrease in pulmonary function especially when compared to his 1981 study. He is presently taking medication which indeed has given him some relief.

I have strongly recommended to him to completely avoid these industrial fumes otherwise his symptoms will ...

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