The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Plaintiff Jeanette Blackshear ("Blackshear") filed this suit on behalf of herself individually, as administrator of her late husband's estate, and as guardian ad litem for her minor children. The complaint alleges that her husband became ill and died as a result of exposure to toxic chemicals while he was employed as an exterminator for defendant Corbett Exterminating ("Corbett"). In this motion to dismiss, Corbett argues that the complaint must be dismissed pursuant to the workers' compensation bar of New Jersey's Workers' Compensation Act.
II. Facts and Procedural History
Because this matter is before the Court as a motion to dismiss, the facts are drawn from plaintiff's complaint. Specifically, this Court will refer to plaintiff's third amended complaint. Plaintiff filed a fourth amended complaint after Corbett filed this motion, but that new complaint only added new parties; it did not alter the allegations against Corbett. Therefore, for the sake of consistency with the parties' briefs and because the third amended complaint was operative when this motion was filed, this Court will refer to the third amended complaint.
From October 1996 through December 2007, plaintiff's husband, Keith Blackshear ("decedent"), worked as an exterminator for Corbett, a company "engaged in the business of extermination of insects, rodents and other pests." (Third Am. Compl., Facts, ¶¶ 14, 17.) As part of its extermination business, Corbett purchased many toxic chemicals from the co-defendants in this case. (Third Am. Compl., First Count, ¶ 3.)
In the eleven years decedent worked for Corbett, he suffered direct exposure to these chemicals, which he used on a near-daily basis. (Third Am. Compl., Eighth Count, ¶2.) Corbett and the co-defendants exacerbated the harm from this exposure by "intentionally and fraudulently conceal[ing] from . . . decedent the hazardous nature of, or in the alternative, the extent of the hazardous nature of the . . . chemicals and substances." (Id. ¶ 3.)
In addition, Corbett "willfully, deliberately, and intentionally failed to provide . . . decedent with proper training, equipment, or clothing in order to safely work with and be exposed to the said chemicals and substances." (Id.) Specifically, Corbett often provided decedent with only a paper mask; did not provide him "a NIOSH-certified combination air-purifying respirator" or "a pressure demand atmosphere-supplying respirator"; did not provide him "a respirator with an organic cartridge"; and did not provide him with "chemical resistant gloves, overalls, socks, footwear, and/or headgear." (Id. ¶¶ 5--9.) Plaintiff asserts that it was "palpably unreasonable" for Corbett to fail to provide these items to decedent "[g]iven the nature of the chemicals and substances" that Corbett knew decedent would be using. (Id. ¶ 10.) Plaintiff further asserts that these actions and omissions eventually caused decedent's sickness and death, and that Corbett "well knew [these actions and omissions] created a substantial or virtual certainty of the illness and death of" decedent. (Id. ¶ 11.)
This case includes a lengthy procedural history mostly relating to the twelve named co- defendants not relevant to this motion.
Plaintiff filed this wrongful death and survivorship case in New Jersey Superior Court, Middlesex County, on February 11, 2009. [D.E. 1.] Plaintiff later filed an amended complaint that added defendant LipaTech, Inc. to the case. [D.E. 1.] On July 15, 2010, LipaTech, Inc. removed the case to federal court. [D.E. 1.]
On September 28, 2010, plaintiff filed a second amended complaint. [D.E. 38.] On November 12, 2010, Corbett filed a motion to dismiss the complaint. [D.E. 67.] That motion was administratively terminated after plaintiff filed a third amended complaint on March 11, 2011. [D.E. 89, 91.] On March 25, 2011, Corbett re-filed its motion to dismiss, this time against the third amended complaint. [D.E. 105.] On October 21, 2011, plaintiff filed a fourth amended complaint. [D.E. 181.]
Because Corbett is a New Jersey corporation and plaintiff is a New Jersey resident, this case lacks complete diversity. To address this issue, Magistrate Judge Shwartz entered an order that "if the motion to dismiss is denied, then the United States District Judge may remand the case to New Jersey Superior Court." [D.E. 36.] If Corbett ...