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Widow Loses Dependency Claim Based on Failure to Prove That Her Husband Was Exposed to Asbestos

By on July 12, 2018 in Claims with 0 Comments

Dennis Lomet worked for Lawes Coal Company from 1987 to 2012 when he died of lung cancer at the age of 47.  He installed, removed, or repaired heating and air conditioning equipment.  He never smoked cigarettes.  Before he died, he told one of his treating physicians that he thought he had been exposed to chemicals, soot and asbestos in the course of his employment.  One of his friends testified at trial that he believed he and the decedent were exposed to asbestos during the period from 1987 to 1992.

Mr. Lomet’s widow, Michelle Lomet, testified that her husband would be so dirty when he returned home from work that he would need to take two showers.  When he would blow his nose, there was black material on the tissues.

Petitioner’s expert, Dr. William Lerner, did not give strong testimony regarding exposure to asbestos.  He seemed to assume there was exposure to asbestos:  “In somebody who is exposed to chemicals like that and asbestos with no other smoking history and no other known cause for his lung cancer, a reasonable probability of these carcinogens causing Dennis’s lung cancer. . . is not unreasonable as a conclusion.”

Respondent’s expert, Dr. Jack Goldberg, testified that there was no evidence of asbestos exposure in this case.  He said that if asbestos fibers enter the lung and cause cancer, plaques are visualized on radiographical films.  He said there were none in petitioner’s studies.  He also said that none of the pathological studies indicated exposure to asbestos.  Finally, he said that there were no radiological studies showing that the decedent’s cancer was caused by chemical exposure either.

The Judge of Compensation concluded that there was no objective medical evidence showing that asbestos exposure caused or contributed to the decedent’s lung cancer.  The Judge stated that this is “a case where there is zero medical evidence and 100% medical speculation.”

Petitioner appealed and argued that there was sufficient credible evidence in the record showing exposure to asbestos.  The Appellate Division affirmed the dismissal of petitioner’s dependency claim.  “We have examined the evidence, and concur with the judge of compensation’s finding there was no evidence of substance that causally links Dennis’s lung cancer to asbestos or other chemicals to which he may have been exposed while working for Lawes.”  The Court also said that there was also no evidence of the extent of any exposure, even if there was exposure.

The case is interesting in that it focused on the threshold issue in every asbestos-related pulmonary claim: namely proof of asbestos exposure.  The Court did not believe that statements by the decedent and co-worker that they thought they were exposed to asbestos was sufficient proof of exposure.  Rather, they insisted on objective evidence.  There was no proof of any asbestos remediation project and no showing of any asbestos products in the workplace.  By far the most damaging element of the case was that the radiographic studies showed no asbestos-related plaques in the decedent’s lungs.

The case can be found at Lomet v. Lawes Coal Company, A-1169-16T1 (App. Div. July 11, 2018).

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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