SIMS v. VC 999 PACKAGING SYSTEMS et al

Filing 278

OPINION. Signed by Judge Renee Marie Bumb on 3/11/2020. (rtm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

BRIAN C. SIMS,
Plaintiff,

Civil No. 17-2636 (RMB/KMW)

v.
OPINION
VC999 PACKAGING SYSTEMS, et
al.,
Defendants.

RENÉE MARIE BUMB, District Judge

I.

INTRODUCTION
This matter comes before the Court on the Motion for Summary

Judgment brought by Defendant Express Scripts, Inc. [Docket No.
209]. For the reasons set forth below, the Court will deny the
motion.

II.

BACKGROUND 1
This suit stems from a workplace accident that resulted in

the below-the-elbow amputation of Plaintiff Brian C. Sims’ left

The Court presents the below version of facts, some of which
are disputed, in the light most favorable to Mr. Sims, because
he is the party opposing summary judgment. See generally L. CIV.
R. 56.1(a).
1

arm. At the time of the accident, Mr. Sims was employed by Express
Scripts, Inc. (“ESI”), a national mail-order pharmacy that fills,
packages, and distributes prescriptions. Mr. Sims worked as an
electromechanical

technician

(“EMT”)

and

his

duties

included

maintaining, servicing, and repairing large industrial machines at
the ESI facility in Florence, New Jersey. The accident in question
occurred on August 24, 2015, while Mr. Sims was servicing a machine
called the Wrap Seal 8. Although Mr. Sims has received over $1
million in workers’ compensation benefits since the accident, he
seeks

to

hold

ESI

also

liable

for

this

accident

under

the

“intentional wrong” exception under the Workers’ Compensation Act,
described below. In that regard, Mr. Sims claims that ESI is liable
because of its policies, modifications of a particular safety
feature, and handling of OSHA’s post-accident investigation. These
issues are discussed in turn below.
A.

Wrap Seal 8 and the Accident

Briefly, the Wrap Seal 8 is an industrial machine that is
used to prepare mail-order prescriptions for delivery. The Wrap
Seal 8 is made up of several component parts, some of which were
designed and manufactured by co-defendants VC999 Packaging Systems
(“VC999”) and Eagle Technologies Group (“Eagle”). At the time of
the accident, Mr. Sims was working on a portion of the Wrap Seal
8 that is comprised of a top and bottom die (or plate), both of
which were heated to approximately 250 degrees Fahrenheit. When
2

activated, the two die would come together to heat pieces of
plastic used to package prescriptions. Conversely, when the Wrap
Seal 8 was not in use, there was some distance between the two
die, such that Mr. Sims could fit his arm between them and attempt
to make repairs. This is what Mr. Sims was doing at the time of
the accident. However, while Mr. Sims’ arm was between the die,
his coworker Robert Nolthenius activated the Wrap Seal 8, causing
the die to come together. This trapped Mr. Sims’ arm between the
two 250-degree dies, causing severe burns and crushing injuries
that ultimately resulted in the below-the-elbow amputation of Mr.
Sims’ left arm.
B.

Lock Out, Tag Out Policy

Mr. Sims admits that the Wrap Seal 8 is equipped with multiple
safety features that, if utilized properly, could have prevented
this accident. Particularly relevant to this motion is the Wrap
Seal 8’s “Lock Out, Tag Out” (“LOTO”) feature, as well as what the
parties refer to as Safety Guard #2. LOTO is a safety procedure by
which machine maintenance workers can turn off a machine before
commencing a repair and insert a personalized padlock to physically
prevent anyone from turning the machine back on. Mr. Sims admits
that had he used LOTO, the accident would not have occurred.
However, Mr. Sims and two other EMTs each testified that ESI had
an unwritten policy to avoid using LOTO because it would require
the machine to be shut down for upwards of 45 minutes, which
3

negatively affected productivity. Mr. Sims presents evidence that
at least one EMT had expressed concern to ESI about the lack of
LOTO usage, but ESI did not address these concerns until after the
accident.
C.

Safety Guard #2 Modification

Safety Guard #2 is an interlocked safety guard on the Wrap
Seal 8, located in the general area where Mr. Sims was working at
the time of the accident. 2 By design, when the safety cover is
removed, electricity to the machine is cut off. This is because
the interlock mechanism works via two magnets, one installed on
the machine and one installed on the safety guard. When the guard
is removed from the machine such that the magnetic force is broken,
the electricity to the system is interrupted.
In early 2014, ESI set out to modify certain aspects of the
Wrap Seal 8, which Mr. Sims alleges stemmed from an effort to
increase productivity. This modification in turn required the
removal, modification, and, in theory, replacement of Safety Guard
#2 with a modified version of it. VC999, which manufactured the
unmodified version of Safety Guard #2, indicated to ESI that it
would not be held responsible for the ramifications of such a
modification: “[I]f ESI cuts the guards down after installation,
ESI will have to assume the safety responsibility.” [Docket No.

2

Safety Guard #1, which was fully functional, was also in the
general area where Mr. Sims was working.
4

223-4, Exh. G.] Because VC999 would not do the modification for
ESI, ESI ultimately contracted Eagle to do it, which Eagle then
assigned to non-party Brennan Industrial. Some months before the
accident, Safety Guard #2 was removed, presumably by Brennan
Industrial. However, at the time of the accident, it had not been
replaced. Instead, a piece of tape had been placed over the
interlocking magnets, bypassing the safety feature and ensuring
that the machine would operate in Safety Guard #2’s absence.
ESI claims that it did not place the tape over the magnets
and that it did not even know Safety Guard #2 was never replaced.
However, ESI does not dispute that the modification — whether done
successfully

and

to

completion

or

not

—

was

done

at

ESI’s

direction. Moreover, ESI admits that the modified Safety Guard #2
was in its possession; soon after the accident occurred, ESI
installed the modified version. Mr. Sims alleges that, had Safety
Guard #2 been in place, he would have noticed it (as opposed to
the tape) and deactivated the Wrap Seal 8 by removing it before
the accident occurred. All parties agree that, in that scenario,
the accident would have been avoided.
D.

OSHA Investigation

OSHA investigated the accident soon after its occurrence. ESI
admits that by the time of this investigation, Safety Guard #2 had
been replaced with the modification. All photographs that ESI
provided to OSHA depicted the Wrap Seal 8 in its post-accident
5

condition with the modified Safety Guard #2, as opposed to in the
condition that existed at the time of the accident, that is, the
absence of Safety Guard #2. ESI did not provide the videos of the
accident to OSHA. Finally, ESI did not at any point disclose to
OSHA that Safety Guard #2 was not in place at the time of the
accident.

III. STANDARD OF REVIEW
A.

Summary Judgment

Summary judgment is proper if “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A
fact is “material” only if it might impact the “outcome of the
suit under the governing law.” Gonzalez v. Sec’y of Dep’t of
Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A dispute is
“genuine” if the evidence would allow a reasonable jury to find
for the nonmoving party. Id. “In considering a motion for summary
judgment, a district court may not make credibility determinations
or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences
are to be drawn in his favor.’” Marion v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)).
The movant “bears the initial responsibility of informing the
6

district court of the basis for its motion, and identifying those
portions

of

‘the

pleadings,

depositions,

answers

to

interrogatories, admissions on file, together with the affidavits,
if any,’ which it believes to demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (quoting FED. R. CIV. P. 56). Once the movant has met
that burden, the nonmoving party “must ‘make a showing sufficient
to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof
at trial.’”

Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir. 2011)

(quoting Celotex, 477 U.S. at 322).
B.

Intentional Wrong

The

New

Jersey

Workers’

Compensation

Act

(the

“Act”)

represents an implicit quid pro quo agreement between employers
and employees. See N.J. STAT. ANN. § 34:15-1 et seq.; Millison v.
E.I. Du Pont de Nemours & Co., 501 A.2d 505, 512 (1985). The Act
constitutes

a

“trade-off

whereby

employees

relinquish[]

their

right to pursue common-law remedies in exchange for automatic
entitlement

to

certain,

but

reduced,

benefits

whenever

they

suffer[] injuries by accident arising out of and in the course of
employment.” Millison, 501 A.2d, at 512; see N.J. STAT. ANN. §
34:15-8.
However,

the

relinquishment

absolute:
7

of

the

right

to

sue

is

not

If an injury or death is compensable under this article,
a person shall not be liable to anyone at common law or
otherwise on account of such injury or death for any act
or omission occurring while such person was in the same
employ as the person injured or killed, except for
intentional wrong.
N.J. STAT. ANN. § 34:15-8 (emphasis added). The New Jersey Supreme
Court has created a two-prong test to determine whether or not an
employer’s conduct constitutes an “intentional wrong.” See Laidlow
v. Hariton Machinery Co., Inc., 790 A.2d 884, 894 (N.J. 2002)
(citing Millison, 501 A.2d 505). Namely,
(1) the employer must know that [its] actions are
substantially certain to result in injury or death to
the employee, and (2) the resulting injury and the
circumstances of its infliction on the worker must be
(a) more than a fact of life of industrial employment
and (b) plainly beyond anything the Legislature intended
the Workers’ Compensation Act to immunize.
Id.
In deciding a summary judgment motion on the issue of the
intentional wrong exception to the Act, “the trial court must make
two separate inquiries.” Id. at 898. First, it must ask whether a
jury, when viewing the evidence in the light most favorable to the
employee,

could

conclude

that

the

first

prong,

known

as

the

“conduct prong,” has been satisfied. Id. If the court answers that
question affirmatively, then the court must determine whether the
second prong, known as the “context prong,” has been satisfied.
Id. “Resolving whether the context prong . . . is met is solely a
judicial

function.”

Id.

In

other

8

words,

“if

the

substantial

certainty standard presents a jury question and if the court
concludes that the employee’s allegations, if proved, would meet
the context prong, the employer’s motion for summary judgment
should be denied; if not, it should be granted.” Id.

IV.

ANALYSIS
ESI makes four main arguments in its motion for summary

judgment. The first is that ESI never committed an “intentional
act” at all. The second is that no reasonable jury could find that
Mr. Sims’ allegations satisfy the conduct prong outlined above.
The third is that, as a matter of law, the context prong cannot be
satisfied. Finally, the fourth is that the actions taken by ESI
were not the proximate cause of Mr. Sims’ injury. The Court is not
persuaded by any of those arguments.
A.

Intentional Act

First, there is a genuine issue of material fact as to whether
ESI committed an intentional act or not. ESI first argues that ESI
itself never removed or failed to replace Safety Guard #2; Brennan
Industrial did. This cat’s paw defense is unavailing. 3 Brennan

3

“The term ‘cat’s paw’ derives from a fable conceived by Aesop,
put into verse by La Fontaine in 1679, and injected into United
States employment discrimination law by [Judge Richard] Posner
in 1990. In the fable, a monkey induces a cat by flattery to
extract roasting chestnuts from the fire. After the cat has done
so, burning its paws in the process, the monkey makes off with
the chestnuts and leaves the cat with nothing.” Staub v. Proctor
Hosp., 562 U.S. 411, 415 n.1 (2011) (citation omitted); see also
9

Industrial

only

acted

at

the

direction

of

ESI,

via

Eagle

Technologies. The Court will not, as a matter of law, absolve ESI
of any responsibility for those instructions simply because ESI
did not carry out the physical work itself. Additionally, ESI
attempts to argue that there is simply no evidence that ESI had an
unwritten policy against EMTs using the LOTO safety procedure. To
the contrary, Mr. Sims has presented testimony from three EMTs
that suggests just that type of unwritten policy. In short, there
are genuine issues of fact as to ESI’s LOTO policy and ESI’s role
in the removal of Safety Guard #2. A jury, not this Court, shall
decide whether those acts are sufficient to establish intentional
acts for the purposes of the law at issue.
B.

Conduct Prong

Second, a reasonable jury could find that the facts of this
case are exactly as laid out above. That is to say a reasonable
jury could conclude that (1) ESI had an unwritten policy against
EMTs using LOTO; (2) ESI wanted to remove Safety Guard #2 in order
to increase production; (3) ESI knew that VC999 would not take
responsibility for the safety risks that came with modifying Safety
Guard #2; (4) ESI had Safety Guard #2 removed and failed to replace
it; (5) ESI either taped over or had Brennan Industrial tape over

Lowe v. Medco Health Solutions of Willingboro, LLC, Civil No.
10-4823 (RMB/AMD), 2012 U.S. Dist. LEXIS 59137, at *44-49, 45
n.16 (D.N.J. Apr. 27, 2012).
10

the

magnetic

strip

of

Safety

Guard

#2

to

bypass

the

safety

mechanism; and (6) ESI deliberately misled OSHA during its postaccident investigation by withholding information about Safety
Guard #2’s status at the time of the accident. That is sufficient
to satisfy the conduct prong.
In Laidlow v. Hariton Machinery Company, Inc., the New Jersey
Supreme Court was faced with a similar set of facts as exist in
this case. 790 A.2d 884 (N.J. 2002). Rudolph Laidlow, an employee
at a manufacturing company, was injured while using a machine
called a rolling mill. Id. at 887. His employer had purchased a
safety guard to protect against such an injury, but purposefully
disengaged it prior to Mr. Laidlow’s injury. Id. at 887-88. Mr.
Laidlow alleged that the guard was only ever in place when OSHA
inspectors came to the plant. Id. at 888. Prior to Mr. Laidlow’s
injury, employees had multiple “close calls,” which the employer
was aware of, but despite employees’ protestations, the employer
refused to replace the guard. Id. The employer admitted to having
done this for “speed and convenience.” Id. Ultimately, the Supreme
Court of New Jersey held that
a reasonable jury could conclude, in light of all
surrounding circumstances, including the prior closecalls, the seriousness of any potential injury that
could occur, Laidlow’s complaints about the absent
guard, and the guilty knowledge of [the employer] as
revealed by its deliberate and systematic deception of
OSHA, that [the employer] knew that it was substantially
certain that removal of the safety guard would result
eventually in injury to one of its employees.
11

Id. at 897-98.
While the circumstances are not exactly the same in this case
as they were in Laidlow, they do not need to be for a jury to
conclude that the conduct prong is satisfied. As the Laidlow court
wrote, “To be sure, reports of prior accidents like prior ‘closecalls’ are evidence of an employer’s knowledge that death or injury
are substantially certain to result, but they are not the only
such evidence.” Id. at 897 (emphasis added). The facts in this
case, when considered in the light most favorable to Mr. Sims, are
sufficient to create a jury question as to whether the conduct
prong is satisfied. It is not for the Court to decide that factual
question at this stage. As a result, summary judgment cannot be
granted in ESI’s favor on that basis.
C.

Context Prong

The Laidlow court then analyzed the context prong of the
Millison standard. The court held that
if an employee is injured when an employer deliberately
removes a safety device from a dangerous machine to
enhance profit or production, with substantial certainty
that it will result in death or injury to a worker, and
also deliberately and systematically deceives OSHA into
believing that the machine is guarded, we are convinced
that the Legislature would never consider such actions
or injury to constitute simple facts of industrial life.
On the contrary, such conduct violates the social
contract so thoroughly that we are confident that the
Legislature would never expect it to fall within the
Worker’s Compensation bar.
Id. at 898. The court was careful to note that it was not creating
12

“a

per

se

rule

that

an

employer’s

conduct

equates

with

an

‘intentional wrong’ within the meaning of [N.J. STAT. ANN.] § 34:158 whenever that employer removes a guard or similar safety device
from equipment or machinery, or commits some other OSHA violation.”
Id. Instead, courts shall ground their decisions on the context
prong “in the totality of the facts contained in the record and
the satisfaction of the standards established in Millison” and
Laidlow. Id.
This Court finds that the circumstances of this case, if
proven by Mr. Sims, meet the high standard of the Millison context
prong. At trial, Mr. Sims will seek to prove that ESI knew about
the dangers of removing Safety Guard #2, had it removed, taped
over it, and misled OSHA about it, all while ignoring employee
complaints about an unwritten policy against using LOTO. If these
facts are proven, this Court is “convinced that the Legislature
would never consider such actions or injury to constitute simple
facts of industrial life.” See id. Like the conduct alleged in
Laidlow, the conduct alleged here, if proven, “violates the social
contract so thoroughly that [this Court is] confident that the
Legislature would never expect it to fall within the Worker’s
Compensation bar.” See id.
To be clear, the Court notes that “the proofs at trial may
not track the employee’s allegations” in this motion. See id. In
other words, the allegations that the Court is relying on to deny
13

ESI’s motion for summary judgment might not be proven at trial.
Nevertheless, a jury could still find the conduct prong to be
satisfied by whatever facts are proven at trial. The Laidlow court,
with that reality in mind, stressed the importance that “the court
should secure from the jury a resolution of those conflicts by way
of

a

carefully

crafted

jury

verdict

form.”

Id.

This

Court

appreciates that need and will act accordingly at trial. But, for
the purposes of this motion and considering the evidence in the
light most favorable to Mr. Sims, the Court finds that the context
prong has been satisfied here. Thus, ESI’s motion for summary
judgment will not be granted on that basis.
D.

Proximate Causation

Finally, ESI argues that it is entitled to summary judgment
because its actions were not the proximate cause of Mr. Sims’
injuries. As above, the Court is convinced that this constitutes
a genuine issue of material fact. Mr. Sims claims that he would
have utilized LOTO if not for ESI’s alleged policy against it and
that he would have removed Safety Guard #2 if it had not been taped
over. Either of those actions would have prevented the accident
from occurring as it occurred. ESI claims that Mr. Sims’ “testimony
is nothing more than an attempt at revisionist speculation.”
[Docket No. 209-3, at 33.] That is precisely the type of factual
question that falls within the province of the jury, and not the
Court. Therefore, the issue of proximate cause cannot be the basis
14

for granting summary judgment in favor of ESI.

V.

CONCLUSION
For the reasons set forth above, the Court will deny ESI’s

motion for summary judgment. An accompanying Order shall issue.

March 11, 2020
Date

s/Renée Marie Bumb
RENÉE MARIE BUMB

15