Millison v. E.I. du Pont e Nemours & Co Case Brief
Summary of Millison v. E.I. du Pont e Nemours & Co, 501 A. 2d 505 
Relevant Facts: Pls are employees and their families. Dfs are Du Pont, and their physicians. Pl’s worked at Chamber and Repauno plants involved in the manufacturing of chemical; each contains an extensive amt of piping. That piping was insulated w/ asbestos. Certain ee’s were exposed to asbestos insulation and inhaled asbestos fibers. The medical director was required to supervise the medical staff of 38, responsible for meeting the health needs of the 4800 ees. Physicians duties included examining, treating ees, providing physical exams, and making sick calls. These examinations included x-rays, pulmonary function tests, EKG’s, urine analyses, and blood tests.
Legal Issue(s): Whether employees’ were precluded by Compensation Act from maintaining a separate tort action against their employer and company physicians for fraud, concealment, and intentionally exposing the ees to asbestos?
Court’s Holding: If “intentionally,” is strictly proven at trial.
Procedure: Following remand, Sup Ct, App Div, reversed denial of physicians’ motion for summary, affirmed summary in favor of employer. Affirmed part, reversed part and remanded.
Law or Rule(s): When, by express or implied agreement, the parties have accepted the provision of the Compensation Act and the ee qualifies for benefits, the ee shall ordinarily be barred from the pursuit of other remedies, except when ee can prove an “intentional wrong.”
Court Rationale: What is being tested is not the degree of gravity or depravity of the Er’s conduct, but the narrow issue of intentional versus accidental quality of the event producing injury. The authorities do not enjoy a rigid consistency in their treatment of “intentionally wrong.” Whatever formulation is used represents a conscious effort to impose severe restrictions on the exception. Historically employees relinquished their right to pursue CL remedies in exchange for automatic entitlement to reduced benefits. If “intentional wrong” is interpreted too broadly, this single exception would swallow up the entire “exclusivity” provision of the Act, and include virtually all ee accidents, injuries, and sicknesses. The reality is that industry knowingly exposes workers to the risks of injury and disease. If the actor desires to cause the consequences of his act or is substantially certain such will result = intent. Every undertaking involves risk, but willful Er misconduct was not meant to go undeterred. The dividing line btwn negligent or reckless conduct is Virtual Certainty. Cts must examine not only the conduct of the Er but also the context that conduct takes place: is the result a fact of life of industrial employment, or is it beyond anything the Leg contemplated. In the absence of Constitutional defects, the initial work-related injury-disease claim apart from the Act must fail.
If the Pls can prove their allegations of fraudulent concealment of known diseases by df-Drs, this goes well beyond failing to warn of potentially dangerous conditions. There is a difference btwn tolerating workplace conditions that will result in a certain number of injuries and actively misleading those who have already fallen victim. The Leg could not have intended to insulate such conduct from tort liability. The Pls must prove their allegations, and it is wholly proper if so, that dfs be held to answer for their misconduct.
Plaintiff’s Argument: du Pont and its Drs. Intentionally injured the pls by deliberately exposing them to asbestos and aggravated these injuries by conspiring to conceal from the pls knowledge of diseases known by the dfs to have been caused by asbestos exposure.
Defendant’s Argument: Pl’s exclusive remedy is recovery under the W. C. Act.
DISSENT: The effect of the Cts decision is to impose a level of knowledge of resultant harm that is virtually akin to a showing of subjective intent or actual purpose to inflict injury. When Pls have raised an issue which requires that if dfs possessed or concealed information indicating exposure was “substantially certain,” to cause the disease.