Timothy Corriston Succeeds on Appeal Vindicating Momentive Specialty Chemicals, Inc.

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ROSELAND, N.J./August 1, 2011 -- Connell Foley partner Timothy E. Corriston successfully overturned a lower court decision denying a motion for summary judgment seeking dismissal of a civil conspiracy claim. Connell Foley represented Hexion Specialty Chemicals, Inc., formerly known as Borden Chemical, Inc. and now known as Momentive Specialty Chemicals, Inc. in the matter brought by plaintiff Jeanette Lewis on behalf of her late husband whose death she attributes to his occupational exposure to Vinyl Chloride Monomer (“VCM”) while employed at Pantasote. A copy of the decision is available here.

Mrs. Lewis filed a complaint against the companies that manufactured and/or supplied VCM to her husband’s employer, Pantasote. Mrs. Lewis also filed suit against numerous companies such as Hexion, which did not manufacture or supply the VCM utilized at Pantasote, but who she claimed purportedly engaged in an industry wide civil conspiracy to fraudulently conceal the health risks associated with exposure to VCM.

At the close of discovery, Hexion filed a motion for summary judgment seeking dismissal of plaintiff’s civil conspiracy claim. The basis of the dismissal was the plaintiff could not prove a fraud claim and therefore there was no underlying intentional tort upon which to predicate a claim for civil conspiracy.

Despite dismissing the fraud claim, the lower court did not dismiss plaintiff’s civil conspiracy claim holding that plaintiff’s civil conspiracy claim could be predicated on her strict liability and inadequate warning claim. The motion judge acknowledged that no New Jersey case law supported the decision, but elected to adopt the rationale followed by several out-of-state decisions.

On appeal, in a unanimous decision, the Appellate Court reversed the denial of Hexion’s motion for summary judgment and entered judgment in Hexion’s favor. Initially, the Appellate Court recognized that the New Jersey Supreme Court had not specifically addressed whether the tort underlying a civil conspiracy can be anything other than an intentional tort. The Court went on to accept Hexion’s argument that the rationale adopted by the majority of Courts that have addressed the issue is more persuasive and that the underlying tort in a civil conspiracy claim must be an intentional tort.

Corriston is a member of the firm's Mass and Toxic Tort Litigation, Environmental Law, Product Liability and Tort Law, and Commercial Litigation practice groups.

For more information, contact Timothy Corriston at 973-535-0500 or tcorriston@connellfoley.com.

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