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DIAZ v. JOHNSON MATTHEY

November 18, 1994

JERRY DIAZ and CATHY DIAZ, Plaintiffs
v.
JOHNSON MATTHEY, INC. and JOHNSON MATTHEY, PLC, Defendants


JOSEPH E. IRENAS, U.S.D.J.


The opinion of the court was delivered by: JOSEPH E. IRENAS

IRENAS, District Judge:

 Plaintiff, Jerry Diaz, worked in New Jersey for defendant, Johnson Matthey, Inc. ("JMI"), from 1981 to 1990. Defendant, Johnson Matthey, PLC ("JM PLC"), is JMI's parent corporation. Plaintiff seeks damages for the long term health effects of on-the-job exposure to platinum salts. *fn1" Diaz claims that employees of both JMI and JM PLC advised him that the condition was temporary and that he would have no further health problems related to the allergy when he stopped working for JMI and was no longer exposed to platinum salts. On November 9, 1992, plaintiffs filed suit in Camden County Superior Court for fraud and conspiracy to defraud against both defendants, intentional infliction of harm by JMI, and negligence by JM PLC. That same day defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(a). *fn2"

 Presently before the Court are defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56. JMI's motion is granted because plaintiff's exclusive remedy against his employer is under the provisions of the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-8 (Supp. 1994). Summary judgment on plaintiffs' fraud, conspiracy, and punitive damages claims is denied because plaintiffs have adduced sufficient evidence which, if believed by the trier of fact, would sustain a cause of action based on fraud or negligence. Issues relating to the need for or the admissibility of expert testimony, or to the qualifications of any proposed expert witness, are reserved for the time of trial or an appropriate motion in limine. Summary judgment on the conspiracy claim against JM PLC is granted since plaintiffs fail to produce evidence of any agreement between JMI and JM PLC to defraud JMI employees.

 I. FACTUAL BACKGROUND

 From 1981 through 1990 plaintiff worked in New Jersey for JMI, first at its plant in Winslow and after 1984 in its West Deptford facility. JMI is in the business, inter alia, of refining, recovering and marketing precious metals, including platinum. JMI's parent, JM PLC, is an English corporation with headquarters in London.

 At the core of this litigation is the question of whether those who develop an allergic reaction to platinum salt exposure will continue to suffer adverse health consequences if they are no longer exposed to the irritant. Diaz alleges that long before he was hired, the chief medical officer of JM PLC and a JMI advisor, Dr. E. Glynn Hughes, was aware of the continuing impact of the platinum allergy:

 
Q: Do you recall when you became aware that prolonged exposure to platinum salts, after sensitization, could lead to long-term health effects?
 
A: I suspected that this may be the case in the early 1970's, certainly prior to 1972.

 (Hughes Dep. at 14; Plaintiffs' Br. at Ex. 4). By October of 1979 Dr. Hughes was aware that at least one former employee of a JM PLC platinum refinery still had platinum allergy symptoms after leaving employment. (Plaintiffs' Br. at Ex. 7.)

 In 1981, the National Institute of Occupational Safety and Health ("NIOSH") began conducting a platinum allergy study which tested present and former workers at JMI, including Diaz. An interim report distributed, but not published, in May of 1982, stated that there may be long term effects from the platinum allergy. (Plaintiffs' Br. at Ex. 9). In early 1984, Dr. Hughes attended a lecture given by Dr. Stuart M. Brooks, one of the NIOSH doctors involved in the 1981 study. Dr. Brooks revealed ongoing lung problems among platinum refinery workers for as long as three years after exposure. (Plaintiffs' Br. at Ex. 15)

 In June of 1990 NIOSH finally published the results of the study started in 1981:

 
It has generally been concluded that asthma in terminated platinum refinery workers does not persist once work exposure has ceased. Our findings are contrary to this conclusion. . . . These findings suggest that allergic sensitization with asthma symptoms and the presence of nonspecific airway hyperresponsiveness in affected workers may continue for years after leaving the industry.

 Brooks et al., Cold Air Challenge and Platinum Skin Activity in Platinum Refinery Workers, Chance, June 1990, at 1405 (Plaintiffs' Br. at Ex. 18) (emphasis added). This conclusion was consistent with a 1985 study by the National Centre for Occupational Health in South Africa which found that "certain South African workers were continuing to have asthmatic symptoms up to thirteen months after ceasing exposure." (Plaintiffs' Br. at Ex. 10.) *fn4"

 Despite the NIOSH and South African studies, the question of how long the allergic symptoms endure after cessation from exposure remains unresolved. In 1982-1983, Dr. A. J. Newman Taylor was commissioned by JM PLC to conduct a study similar to the one started by NIOSH. Although it is alleged that Dr. Newman Taylor's initial work suggested the possibility of chronic effects from exposure to platinum salts, his final study found no evidence of long term respiratory problems. *fn5" Even the medical advisor to Diaz's former union has testified that "the issue of whether platinum exposure has long term health effects has still not been resolved." (Joint Final Pre-Trial Order at P 87.)

 For the time period relevant to this case (1981-1990), JMI attempted to avoid hiring individuals with a tendency to develop allergies, and prior to 1988 JMI had a policy of discharging any individual who became allergic to platinum salts. Diaz alleges that JMI did not follow this termination policy because he and many other JMI employees known by JMI to have the platinum allergy were not discharged.

 In April of 1981, Diaz applied for employment in the maintenance department of JMI. Prior to receiving his job offer from JMI, Diaz had an interview with the plant nurse and underwent a physical examination. During the interview, the nurse discussed the potential health hazards of platinum salt exposure. She also informed Diaz about the symptoms associated with the platinum allergy and the medical termination policy at JMI. The nurse told Diaz to report any symptoms of the allergy to her. Diaz's pre-employment medical exam included a pulmonary function test and a skin prick test to determine if he was atopic (sensitive to common household allergens). Records of the skin prick test cannot be located (Diaz believes the result was non-atopic). Although JMI claims that Diaz's pulmonary function tests were marginal, Diaz was certified fit for employment and started work at JMI on May 18, 1991.

 Shortly after he began work at JMI, Diaz participated in the NIOSH platinum allergy study being conducted at JMI. After his physical examination, NIOSH informed Diaz that he was sensitive to various common household allergens and that he possibly suffered from rhinitis and asthma due to his exposure to platinum salts, although it was "likely that Mr. Diaz did not have platinum allergy." (Joint Final Pre-Trial Order at P 38.) While Diaz never disclosed this information to JMI, he did discuss the test results with members of the United Steelworkers Union ("the Union") which represented JMI's employees and which had been concerned since 1980 about the platinum allergy problem at JMI.

 In late 1981-early 1982, Diaz viewed a videotaped lecture presented by Dr. Hughes discussing the platinum allergy in detail. This lecture stated that the platinum allergy "does not cause chronic lung disease." (Plaintiffs' Br. at Ex. 1.) In 1983, Diaz claims that he received a JMI document distributed to JMI employees stating that removal from exposure to platinum compounds would eliminate the effects of the platinum allergy. (Plaintiffs' Br. at Ex. 19.)

 By September 1983, Diaz knew that he had the platinum allergy. JMI claims that Diaz never reported his allergy symptoms to the company, but plaintiff counters that he reported his symptoms to the plant nurse on several occasions. Until 1988 the Union opposed periodic skin prick tests on current employees to determine sensitivity to platinum salts, probably because a positive finding might result in employee termination. JMI did, however, conduct periodic physical examinations of their employees, including a pulmonary function test. Decrease in lung functions from prior tests can be an indication of the platinum allergy.

 JMI alleges that, prior to taking certain lung function tests, Diaz used Primatine Mist to deceive JMI regarding his symptoms. As a result, Diaz's tests would often be normal. Diaz argues that JMI knew that he used the medication, and there is a notation on a JMI document regarding his use of Primatine Mist.

 Diaz was an active union member who was its Vice President in 1988 and became President the following year. As part of his review of Union documents, Diaz saw the NIOSH interim report and other JM PLC documents regarding the platinum allergy in 1988 or 1989, and possibly earlier. *fn6" In his capacity as Vice President of the Union, Diaz claims that in 1988 he met with Dr. Hughes' successor as chief medical officer of JM PLC, Dr. Morag Stewart. Dr. Stewart allegedly told Diaz that after removal from exposure to platinum salts, Diaz could expect a full recovery. Sometime after May 1989, Dr. Stewart again allegedly told Diaz that the effects of the platinum allergy were only temporary. Id.

 Diaz was actively involved in the collective bargaining sessions between the Union and JMI held in the fall of 1988. Periodic skin prick testing was one of the topics discussed during these negotiations. Dr. David Parkinson, an occupational physician, provided advice to the Union during negotiations. Diaz alleges that Dr. Hughes withheld from Dr. Parkinson material information regarding the long term health problems of the platinum allergy. On Dr. Parkinson's recommendation the skin prick testing program was accepted by the Union.

 In April of 1989, all JMI employees were skin prick tested for the platinum allergy. Diaz tested positive. JMI referred Diaz to a private physician specializing in allergies, Dr. Robert Perin. Dr. Perin saw Diaz once a month for six months, at which point he concluded that any remaining symptoms were due to other allergies. Diaz left Dr. Perin's care with the caution to avoid further exposure to platinum salts.

 During the last twelve months of his employment JMI sought to identify non-exposure areas of the plant where Diaz could work without risk of further allergic reactions. Notwithstanding the change in work assignment, plaintiff's symptoms persisted, and in August of 1990 Dr. Perin recommended that Diaz terminate his employment with JMI, which he did on October 29, 1990.

 In September 1990, Joe Molle, the human resources manager at JMI informed Diaz's subsequent employer that the medical condition which forced him to leave JMI was unique to the platinum refinery business ...


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