Long v. Johnson & Johnson Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GREGORY J. LONG, )
)
Plaintiff, ) C.A. No. N19C-09-255 MAA
)
v. )
)
JOHNSON & JOHNSON SERVICES, )
INC., NORAMCO, INC., and JANSSEN )
PHARMACEUTICALS, INC., )
)
Defendants. )
Submitted: February 19, 2020
Decided: April 24, 2020
Upon Defendant Noramco’s Motion to Dismiss Plaintiff’s Complaint:
Denied
MEMORANDUM OPINION
Philip T. Edwards, Esq., MURPHY & LANDON, Wilmington, Delaware, Paul
Bucci, II, Esq., LAFFEY, BUCCI & KENT, LLP, Philadelphia, Pennsylvania,
Attorneys for Plaintiff.
Brian D. Tome, Esq., REILLY, MCDEVITT, AND HENRICH, P.C., Wilmington,
Delaware, Attorney for Defendant Noramco, Inc.
Adams, J.
1
This case involves alleged injury from exposure to silica and toluene during
Plaintiff Gregory J. Long’s (“Plaintiff”) employment at a pharmaceutical
manufacturing facility. The central issue at this stage is whether Defendant
Noramco, Inc. (“Noramco”) is immune from this suit under Delaware’s Workers’
Compensation statute. For the reasons stated herein, the Court DENIES Noramco’s
Motion to Dismiss.
FACTS AND PARTIES’ CONTENTIONS
Plaintiff alleges in the Complaint that Defendants Johnson & Johnson
Services, Inc. (“Johnson & Johnson”), Noramco and Janssen Pharmaceuticals, Inc.
(“Janssen Pharmaceuticals”) “allowed, caused and/or permitted dangerous,
excessive and significant amounts of airborne silica dust and toluene to be used and
be present on, near and/or around Plaintiff in their course of controlling, managing,
owning, operating and/or supervising the pharmaceutical manufacturing facility[…]
thereby unreasonably exposing [Plaintiff] to these known health hazards.”
Plaintiff alleges that each of the named Defendants owned, managed, operated
and/or controlled the facility “individually, as successors-in-interest to other entities,
as subsidiaries and/or operating arms of, in partnership with, or otherwise in
connection with other entities and/or each other.” Plaintiff does not allege in the
Complaint who was Plaintiff’s employer or allege specific details of the parties’
2
relationships to each other.1 Plaintiff is also involved in litigation before the
Industrial Accident Board against Johnson & Johnson.2
Under the Delaware Workers’ Compensation statute, actions by an employee
against his employer for injuries caused by “all compensable occupational diseases”
are barred.3 Noramco asserts that it is immune under the statute as Plaintiff’s
employer and Plaintiff has, therefore, failed to state a claim under Superior Court
Civil Rule 12(b)(6).
Plaintiff does not dispute that Noramco states accurately the current state of
the law regarding the Delaware Workers’ Compensation statute. Rather, Plaintiff
contends Noramco’s arguments involve issues of fact that are inappropriate for
resolution at the motion to dismiss stage. Plaintiff argues that the Court should deny
Noramco’s Motion to Dismiss because it is not possible at this stage to determine
whether Noramco is Plaintiff’s employer for the purposes of immunity under the
Workers’ Compensation statute.
1
Plaintiff asserts in both this Opposition to the Motion to Dismiss and supplemental
briefing that he named both Noramco and Johnson & Johnson as defendants because
there is confusion as to the identity of his employer during the relevant time period.
2
See Tr. 17:4–19:9-13. Plaintiff also acknowledged during oral argument that
Noramco is listed, in addition to Johnson & Johnson, on one of the IAB litigation
documents. Plaintiff is represented by different counsel in the present matter.
3
Noramco Mot. to Dismiss ¶ 2 (citing 19 Del. C. § 2304; Kofron v. Amoco
Chemicals Corp., 441 A.2d 226 (Del. 1982)).
3
PROCEDURAL POSTURE
Plaintiff filed his Complaint on September 25, 2019. Noramco filed its
Motion to Dismiss on October 25, 2019.4 Pending before the Court is Defendant
Noramco, Inc.’s (“Noramco”) Motion to Dismiss the Complaint. The Court held
oral argument on the Motion to Dismiss on January 31, 2020. The Court ordered
additional briefing on the issue of whether Noramco is immune from this suit under
Delaware’s Workers’ Compensation statute as Plaintiff’s employer. The parties
completed briefing on this issue on February 19, 2020 and this matter is now ripe
for decision.
ANALYSIS
On a motion to dismiss under Superior Court Civil Rule 12(b)(6), the Court
“will accept all well-pleaded factual allegations in the complaint as true” and “will
draw all reasonable inferences in favor of the plaintiff.”5 The Court will deny a
12(b)(6) motion to dismiss “unless the plaintiff could not recover under any
reasonably conceivable set of circumstances susceptible of proof.”6 “As a general
rule, vagueness and lack of detail are insufficient grounds for dismissal.”7
4
The remaining defendants, Johnson & Johnson and Janssen Pharmaceuticals, filed
answers to the Complaint.
5
Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings, LLC, 27 A.3d 531,
536 (Del. 2011).
6
Id.
7
Anderson v. Airco, Inc., 2004 WL 1551484, at *2 (citing Evans v. Perillo, 2000
WL 973245, at *2 (Del. May 26, 2000)).
4
Under the Delaware Workers’ Compensation statute, “every employer and
employee […] shall be bound by this chapter respectively to pay and to accept
compensation for personal injury or death by accident arising out of and in the course
of employment […] to the exclusion of all other rights and remedies.”8 However,
“[a]lthough the exclusivity provision prevents an injured employee from suing the
employer for the employer's negligence, it does nothing to alter the injured party's
right to bring a negligence action against a third-party tortfeasor,” even if the injury
occurred in the workplace.9
Noramco asserts multiple arguments related to its purported status as
Plaintiff’s employer.10 First, Noramco argues that current and former employers are
equally immune under the Workers’ Compensation statute. Second, Noramco
argues that a successor-in-interest is immune under the statute unless the dual
persona doctrine applies. Third, Noramco argues for the application of the four-
factor Neal test11 to determine Plaintiff’s employment status with regard to the
Defendants. Finally, Noramco argues that if Plaintiff is attempting to pierce the
8
19 Del. C. § 2304.
9
Stayton v. Clariant Corp., 10 A.3d 597, 600, 603 (Del. 2010).
10
Noramco also asserts that these arguments are only relevant with regard to the
other Defendants because the affidavit Noramco attached to its additional briefing
response proves that Noramco was Plaintiff’s employer. This affidavit is outside the
pleadings and the Court will not consider it in making its decision on the Motion.
Furthermore, the affidavit does nothing to resolve this contested factual matter, even
if the Court were to consider it at this time.
11
Lester C. Newton Trucking Co. v. Neal, 204 A.2d 393, 395 (Del. 1964).
5
corporate veil in suing a parent company for the actions of its subsidiary, the Court
would have no subject matter jurisdiction over such a claim because Plaintiff has not
alleged direct liability. The Court will address each of Noramco’s arguments in turn.
First, Noramco asserts that current and former employers share the same
immunity under the statute. At this stage, the record is not sufficiently developed
for the Court to determine whether Noramco, or any other Defendant, was Plaintiff’s
employer, at any time, under the Workers’ Compensation statute. The Court is,
therefore, unable to determine whether Noramco is immune as a former or current
employer at this time.
Second, with regard to Noramco’s successors-in-interest argument, the dual
persona doctrine provides that an employer becomes a third person and may lose its
immunity under the statute only if “it possesses a second persona so completely
independent from and unrelated to its status as an employer that by established
standards the law recognizes that persona as a separate legal person.”12 The
pleadings contain almost no information about the nature of Noramco’s relationship
with the other named Defendants and it is premature for the Court to engage in this
analysis at this stage.
12
Stayton, 10 A.3d 597, 601 (quoting Arthur Larson, Larson’s Workers’
Compensation Law, 6 § 113.01[1], p. 113–2).
6
Third, the pleadings also lack the facts necessary to make a determination
under the Neal test.13 In Anderson v. Airco, the Court was asked to apply the Neal
test to determine whether plaintiff was an employee of a parent company, in addition
to being the employee of the subsidiary-employer defendant. The complaint,
however, provided “little factual guidance” for the Court in making a determination
as to whether the plaintiff was an employee of the parent company. 14 The fact that
the complaint in Anderson did not allege facts sufficient for the Court to apply the
Neal test, however, did not warrant a dismissal under 12(b)(6) because “the
Complaint serves only a notice function” and the plaintiffs were not required to
“prove their case within it.”15 The Anderson court denied the motion to dismiss in
order to allow the further development of the record with regard to the question of
employment.16
Similarly, the Complaint here does not set forth facts sufficient to undertake
the Neal analysis to determine whether Noramco is an employer for the purposes of
immunity under the Workers’ Compensation statute.
13
Delaware courts use the following four-factor test to determine whether an
employer-employee relationship exists: (1) who hired the employee; (2) who may
discharge the employee; (3) who pays the employee’s wages; and (4) who has the
power to control the conduct of the employee when he is performing the particular
job in question. See Lester C. Newton Trucking Co. v. Neal, 204 A.2d 393, 395 (Del.
1964).
14
Anderson, 2004 WL 1551484, at *10.
15
Id.
16
Id.
7
Finally, although Noramco asserts that Plaintiff is not alleging direct liability
of the parent company, the allegations set forth in the Complaint suggest otherwise.
Plaintiff has alleged that each Defendant is directly liable for his injuries and does
not appear to be asserting a veil piercing argument.
The test to determine whether an employer-employee relationship exists “is
an issue of law that depends on the facts and circumstances of the particular case,
with no single element being decisive.”17 The Complaint does not provide the Court
with enough information to answer the questions posed by the Neal test, nor is it
required to.18 Neither the parties nor the Court are able to determine which
Defendant (or Defendants, as the case may be)19 qualifies as Plaintiff’s employer for
purposes of immunity under the Workers’ Compensation, even after oral argument
and two rounds of briefing. The Court will, therefore, deny Noramco’s Motion to
Dismiss.
17
Barnard v State, 642 A.2d 808, 813 (Del. Super. 1992) (citing Gooden v. Mitchell,
21 A.2d 197 (Del. Super. 1941)). See also Patterson v. Blue Hen Lines, Inc., 1986
WL 2274, at *2 (Del. Super. Jan. 28, 1986) (“The determination of an employer-
employee relationship almost always is a question of fact.”); Dickinson v. Eastern
R. R. Builders, Inc., 403 A.2d 717, 721 (Del. 1979) (“[T]he test for the employer-
employee relationship is ordinarily a factual one.”).
18
See Anderson, 2004 WL 1551484, at *10.
19
See Farrall v. Armstrong Cork Co., 457 A.2d 763, 766 (Del. Super. 1983)
(discussing circumstances in which an employee is simultaneously employed by two
or more employers).
8
CONCLUSION
For the foregoing reasons, Noramco’s Motion to Dismiss is DENIED.
9