SIMS v. VC 999 PACKAGING SYSTEMS et al
Filing
75
OPINION. Signed by Judge Jerome B. Simandle on 1/24/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRIAN C. SIMS,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 17-2636 (JBS/JS)
v.
VC999 PACKAGING SYSTEMS, et
al.,
OPINION
Defendants.
APPEARANCES:
Gary Frederick Piserchia, Esq.
Thomas F. Flynn, III, Esq.
FLYNN & ASSOCIATES, PC
2091 Springdale Rd., Ste. 2
Cherry Hill, NJ 08003
Attorneys for Plaintiff Brian C. Sims
Robert V. Dell’Osa, Esq.
COZEN AND O’CONNOR
Liberty View
457 Haddonfield Road, Suite 300
Cherry Hill, NJ 08002
-andMichael P. Nolan, Esq. (pro hac vice)
HUSCH BLACKWELL LLP
The Plaza in Clayton
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Attorneys for Defendant Express Scripts, Inc.
SIMANDLE, District Judge:
Plaintiff Brian C. Sims (hereinafter, “Plaintiff”) brings
this case against Defendants VC 999 Packaging Systems, Eagle
Technologies Group, and Express Scripts, Inc., alleging that
Defendants VC 999 Packaging Systems and Eagle Technologies Group
manufactured, designed, distributed, or installed an industrial
machine that was defectively designed or which they failed to
adequately warn about, which resulted in serious bodily injury
to Plaintiff. As relevant here, Plaintiff alleges that his
employer, Defendant Express Scripts, Inc. (hereinafter, “ESI” or
“Defendant ESI”), willfully altered, removed, or permitted the
non-existence of safety features on the same industrial machine
and was substantially certain such action could result in harm
to its employees, including the injury suffered by Plaintiff
while utilizing the industrial machine. Defendant ESI moved to
dismiss the Amended Complaint, arguing that Plaintiff failed to
state a claim upon which relief may be granted because the New
Jersey Workers’ Compensation Act, N.J.S.A. § 34:15-1, et seq.,
establishes the sole remedy available against his employer for
his injury during the course of his employment. The principal
issue to be decided is whether Plaintiff has stated a claim of
relief within the exception to the Workers’ Compensation Act
permitting a covered employee’s suit against his or her employer
for “intentional wrongs,” as permitted by N.J.S.A. § 34:15-8.
For the following reasons, the Court finds that Plaintiff has
not stated such a claim and will grant Defendant ESI’s motion to
dismiss without prejudice.
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FACTUAL AND PROCEDURAL BACKGROUND1
The Amended Complaint arises out of an on-the-job injury
Plaintiff suffered on August 24, 2015, while working for ESI.
(Amend. Compl. at ¶¶ 11, 17.) Plaintiff was either working on or
utilizing an industrial machine, referred to in the Amended
Complaint as an “Order Sort to Wrap Seal” or “Wrap Seal 8”
industrial machine, on ESI’s premises when his hand was caught
in the machine, resulting in the amputation of his left hand and
wrist. (Id.) Plaintiff alleges this injury was caused by the
machine not being “reasonably fit, suitable or safe for its
intended purpose because it deviated from design specifications,
formula, or performance standards of manufacturers of like
equipment” and, alternatively, that the machine “failed to
contain adequate warnings and/or instructions and/or was
designed in a defective manner.” (Id. at ¶ 12.) Plaintiff
further alleges that Defendant ESI owned and/or exclusively
possessed and controlled the industrial machine, and that ESI
“willfully, intentionally, and/or deliberately” altered,
removed, and/or permitted the “non-existence of safety features”
1
The Court accepts as true for the purposes of the instant
motion the following facts as alleged in the Amended Complaint.
[Docket Item 29.] The Court also considers any materials either
“integral to or explicitly relied upon in the complaint” or
matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014); In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997).
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on that machine in such a manner that allowed a co-worker to
remotely activate the machine in a way that harmed Plaintiff.
(Id. at ¶¶ 16, 18.) Plaintiff alleges that ESI was substantially
certain its conduct would result in injury to its employees.
(Id.)
Plaintiff initially filed a Complaint in Burlington County
Superior Court on March 6, 2017, and Defendant ESI subsequently
removed the case to this Court, with consent of all other named
defendants, on the basis of diversity jurisdiction pursuant to
28 U.S.C. §§ 1332 and 1441. [Docket Item 1.] On April 24, 2017,
ESI moved for dismissal of the Complaint. [Docket Item 9.] On
July 6, 2017, the Honorable Joel Schneider, U.S.M.J., granted
Plaintiff’s request to file an Amended Complaint [Docket Item
26], which Plaintiff filed the following day. [Docket Item 29.]
ESI’s first motion to dismiss was subsequently dismissed as moot
[Docket Item 35.] On July 27, 2017, ESI filed a second motion to
dismiss Plaintiff’s claims against it [Docket Item 36], which is
now pending before the Court.
STANDARD OF REVIEW
When considering a motion to dismiss for failure to state a
claim upon which relief can be granted under Fed. R. Civ. P.
12(b)(6), a court must accept as true all well-pleaded
allegations in the complaint and draw all reasonable inferences
in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89,
4
93-94 (2007) (per curiam). A motion to dismiss may only be
granted if a court concludes that the plaintiff has failed to
set forth fair notice of what the claim is and the grounds upon
which it rests that make such a claim plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
Although the Court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). A plaintiff should plead sufficient facts to
"raise a reasonable expectation that discovery will reveal
evidence of the necessary element," Twombly, 550 U.S. at 556,
and "[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do." Iqbal, 556 U.S. at 678.
DISCUSSION: THE WORKERS’ COMPENSATION ACT BAR AND ITS
EXCEPTION FOR AN EMPLOYER’S “INTENTIONAL WRONGS”
Defendant ESI moves to dismiss Plaintiff’s Amended
Complaint for two reasons. First, Defendant ESI argues that
Plaintiff’s claim is barred by the existence of an exclusive
remedy for his injury under the New Jersey Workers’ Compensation
Act, N.J.S.A. § 34:15-1, et seq. Second, Defendant ESI asserts
that Plaintiff fails to plead sufficient facts to state a claim
that would establish an exception to that exclusive remedy.
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The relevant exception, established by N.J.S.A. § 34:15-8,
states that employees who can be compensated under the Workers’
Compensation Act must exclusively use those means and cannot
utilize common-law remedies “except for intentional wrong.” This
is based on the theory that the system established by the
statute is a “trade-off”: employees are promptly and
automatically entitled to benefits when injured, but in exchange
relinquish the right to pursue common-law remedies against their
employer. Laidlow v. Hariton Mach. Co., Inc., 170 N.J. 602, 605
(2002) (quoting Millison v. E.I. du Pont de Nemours & Co., 101
N.J. 161, 174 (1985)).
To define an “intentional wrong” in the context of this
statute, New Jersey courts look to both “conduct” and “context.”
Mull v. Zeta Consumer Prods., 176 N.J. 385, 391 (2003). The
“conduct” prong is satisfied if the employer knew his actions
were “substantially certain” to result in the injury or death of
employees. Laidlow, 170 N.J. at 617. The “context” prong is
likewise satisfied if the “injury and the circumstances of its
infliction” are “more than a fact of life of industrial
employment” and plainly beyond the legislative intent of the
Workers’ Compensation Act. Id. Plaintiff fails to plead
sufficient facts to satisfy either the “conduct” or “context”
prong, and thereby fails to assert a claim that the N.J.S.A. §
34:15-8 exception is applicable to this matter.
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With respect to the “conduct” prong, Plaintiff makes only
conclusory statements that ESI acted “knowing with substantial
certainty” that injury would result from its actions; he alleges
no facts or circumstances to support that claim, only stating
that ESI “willfully, intentionally and/or deliberately
alter[ed], remove[d] and/or permit[ted] the non-existence of
safety features on the subject industrial machine . . .
including but not limited to, instructing its employees not to
deactivate the subject industrial machine, the removal of safety
guards, and the deactivation of emergency stop features.”
(Amend. Compl. at ¶ 18.) Notably, Plaintiff fails to indicate
what specific safety features were missing,2 who allegedly
altered or removed them, when and why the safety features were
allegedly removed or altered, and how these safety features
might have prevented Plaintiff’s injury. Plaintiff’s mere
recital of a requirement of the “intentional wrong” exception
cannot survive ESI’s motion to dismiss. See Iqbal, 556 U.S. at
2
In Plaintiff’s brief, he refers to an “emergency stop button”
on the machine. (Pl.’s Opp. Br. at 2.) In the Amended Complaint,
Plaintiff referred generally to “emergency stop features,” but
never mentioned any “button.” (Amend. Compl. at ¶ 18.)
“Plaintiff cannot add factual allegations in Opposition; the
mechanism for curing pleading deficiencies is to file an amended
complaint pursuant to Fed. R. Civ. P. 15(a).” Ocean City Exp.
Co., Inc. v. Atlas Van Lines, Inc., 2013 WL 3873235, at *3
(D.N.J. July 25, 2013). Accordingly, the Court will not consider
Plaintiff’s factual allegations about an “emergency stop button”
in evaluating this motion.
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678; see also Celestin v. West Deptford Twp., 2016 WL 5539584,
at *2 (D.N.J. Sept. 29, 2016) (“A court need not credit either
‘bald assertions’ or ‘legal conclusions’ in a complaint when
deciding a motion to dismiss.”) (citing In re Burlington Coat
Factory, 114 F.3d at 1429-30)).
Plaintiff argues that this Court should follow the New
Jersey Appellate Court’s decision in Mabee v. Borden, Inc., 316
N.J. Super. 218 (App. Div. 1998), and find the “intentional
wrong” exception applicable to his case. There, the Mabee Court
found that where a defendant removed safety devices on an
industrial machine for “profit motive or production concerns,”
and where circumstances permitted the inference that the
defendant was “substantially certain” of potential injury to its
workers using that machine, the Workers’ Compensation Act bar
did not apply. Id. at 230-231.
The Court disagrees that Plaintiff’s allegations against
ESI set forth circumstances that would make the Mabee Court’s
conclusions applicable here. As the New Jersey Supreme Court
explained in Laidlow v. Hariton Machinery Co., Inc., Mabee’s
holding does not stand for a general principle that removal of a
safety guard per se meets the “intentional wrong” standard;
rather, as the Laidlow Court indicated, whether such removal
meets the “intentional wrong” exception “requires a case-by-case
analysis” based on the facts presented. 170 N.J. 602, 619
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(2002); see also Shorter v. Quality Carrier, 2014 WL 7177330, at
*3 (D.N.J. Dec. 16, 2014) (stating that Laidlow indicates
removal of a safety feature is not, in itself, sufficient to
establish an “intentional wrong”). Here, Plaintiff has not
identified what specific safety device was allegedly removed or
altered and for what reason, nor has Plaintiff alleged
circumstances that would permit an inference that ESI was
“substantially certain” that injury to its workers would occur
as a result of such conduct. Since this Court is obligated to
apply New Jersey law, which indicates that as a matter of law
the employer’s removal of a safety device, standing alone, does
not rise to the level of an “intentional wrong,” the Court is
constrained to find that Plaintiff has failed to plead
sufficient facts to meet the “conduct” prong.
With respect to the “context” prong, the New Jersey Supreme
Court has explained that there is “a high threshold for the
contextual analysis” necessary in determining if the
circumstances of an injury are beyond the legislative intent of
the Workers’ Compensation Act. Van Dunk v. Reckson Assocs.
Realty Corp., 210 N.J. 449, 473-74 (2012). In the past, courts
have found certain extreme conduct has been sufficient for an
injury to fall outside the norms of “industrial life.” See,
e.g., Blackshear v. Syngenta Crop Protec., Inc., 2011 WL
5238801, at *4 (D.N.J. Oct. 31, 2011) (finding allegations that
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a defendant was inferably aware of the risk associated with
chemicals based on years in the extermination business, did not
disclose this risk to employees, and did not supply certain
safety equipment equated to a sufficient pleading that defendant
committed an “intentional wrong”); Laidlow, 170 N.J. at 622
(holding that a company only utilizing a mandated safety device
during OSHA inspections and having experienced reported closecalls of injuries similar to the plaintiff’s pushed the injury
beyond the norms of industrial life). But Plaintiff has not made
any such allegations in the Amended Complaint and the context of
his injury appears to be the very type of on-the-job injury the
New Jersey legislature likely envisioned as being “a fact of
life of industrial employment.” Thus, Plaintiff fails to satisfy
the requirements of the “context” prong, as presently plead.
CONCLUSION
Since Plaintiff failed to allege an “intentional wrong,”
Plaintiff’s claims against ESI are barred by the Workers’
Compensation Act. Accordingly, Defendant ESI’s motion to dismiss
is granted without prejudice. Because it is not clear that any
attempt to amend the complaint against ESI would be futile,
Plaintiff should have one last opportunity to state a sufficient
factual basis for the “conduct” and “context” of the employer’s
alleged “intentional wrong,” if counsel can do so within the
constraints of Fed. R. Civ. P. 11(b). The Court will dismiss
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Plaintiff’s claims against ESI without prejudice to Plaintiff’s
right to seek leave to amend its Amended Complaint in a manner
that is consistent with the Court’s Opinion within fourteen (14)
days hereof. The accompanying Order will be entered.
January 24, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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