No. A-3967-14T3.

GWENDOLYN SEYMOURE, individually and as Executrix and Executrix ad Prosequendum of the Estate of James F. Seymoure, Plaintiff-Respondent, v. A.O. SMITH WATER PRODUCTS COMPANY, ARVIN-MERITOR, INC., f/k/a Arvin Industries, Inc., as successor-in-interest to Rockwell International Automotive, ASBESTOS CORPORATION, LTD., BELL ASBESTOS MINES, LTD., BORG WARNER MORSE TEC, f/k/a Borg Warner, BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC, as successor-in-interest to Bridgestone/Firestone, Inc. and Worldbestos Corporation, CARLISLE COMPANIES INCORPORATED, a/k/a Carlisle Braking Products, CENTRAL JERSEY SUPPLY CO., CERTAINTEED CORPORATION, DANA COMPANIES, LLC, individually and as successor-in-interest to Victor Gaskets and Spicer Clutches, EASTERN EXPRESS, INC. (DISCOVERY ONLY), EASTERN FREIGHT WAYS, INC. (DISCOVERY ONLY), EATON CORPORATION, FISHER SCIENTIFIC COMPANY, LLC, FORD MOTOR COMPANY, GOODRICH CORP., f/k/a B.F. Goodrich, THE GOODYEAR TIRE AND RUBBER CO., HOLLINGSWORTH & VOSE COMPANY, HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., as successor-in-interest to the Bendix Corporation, INTERNATIONAL PAPER COMPANY, KAISER GYPSUM, KENTILE FLOORS, INC., LIPE AUTOMATION, f/k/a Lipe Rollway Corporation, MCCORD CORPORTAION, MACK TRUCKS, INCORPORATED, MAREMONT CORPORATION, individually and as successor to Grizzly, METROPOLITAN LIFE INSURANCE COMPANY, MITSUI & CO. (USA), INC., OCCIDENTAL CHEMICAL CORP., OVERNIGHT (DISCOVERY ONLY), PACCAR, INCORPORATED, individually and as successor to Kenworth Truck Company and Peterbilt Motor Company, PNEUMO-ABEX, LLC, RYDER SYSTEM, INC., T.I.M.E. D.C., INC. (DISCOVERY ONLY), UNIROYAL HOLDINGS, INC., f/k/a Uniroyal, Inc., WYETH HOLDINGS CORPORATION, f/k/a American Cyanamid Corp., and RYDER TRUCK RENTAL, INC., Defendants, and UNION CARBIDE CORPORATION, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Decided April 20, 2016.

Attorney(s) appearing for the Case

Craig A. Woods (Mayer Brown LLP) of the Illinois bar, admitted pro hac vice, argued the cause for appellant (Caruso Smith Picini PC and Mr. Woods, attorneys; Richard D. Picini , of counsel and on the brief).

Robert E. Lytle argued the cause for respondent (Szaferman, Lakind, Blumstein & Blader, P.C., and Levy Konigsberg, LLP, attorneys; E. Elizabeth Sweetser , on the brief).

Before Judges Guadagno and Vernoia.


Defendant Union Carbide Corporation (UCC) appeals from the Law Division's February 24, 2015 order denying reconsideration of its August 29, 2014 order denying UCC's motion for a protective order to restrict dissemination of certain medical records filed in workers' compensation cases. While the judge denied UCC's motion, she fashioned an alternative protective order requiring notification to the former employees. If they failed to object or respond, the former employees were deemed to have waived all privacy interests in their medical records. UCC sought reconsideration, which the court denied. UCC now appeals. Because the judge's order does not provide the privacy protection required by N.J.S.A. 34:15-128.3 when disclosing workers' compensation medical information, we reverse.

We glean the following facts from the record. James F. Seymoure (decedent), was married to plaintiff Gwendolyn Seymoure. In June 2012, decedent died from mesothelioma, a cancer of the lung caused by asbestos. Decedent had worked as a truck driver for various companies over several decades.

In July 2013, plaintiff filed a complaint against several defendants, including UCC, alleging they were manufacturers, suppliers, or distributors of asbestos products that decedent used or was exposed to. Among the allegations in plaintiff's complaint are claims that decedent was exposed to asbestos while making deliveries and pick-ups at UCC's Bound Brook facility.

In 2013, plaintiff filed a broad discovery request seeking workers' compensation records of UCC employees. A special master recommended compelling UCC to provide the records, but limited production to its Bound Brook facility and to the times when decedent made deliveries to that plant. UCC appealed, and the Law Division judge upheld the recommendation and ordered production of the records.

UCC then moved for a protective order, seeking to limit disclosure of the files for any purpose other than this litigation. On August 29, 2014, the judge entered an order denying UCC's motion for a protective order, but added the following handwritten provisions:

1.Defendant to advise former/current employees of production of documents w/in 7 days 2. Defendant may redact social security #s only. In the event defendant determines non relevant medical information, shall advise π's counsel and bring issue to [special master] 3. Documents to be produced w/in 14 days

UCC moved for reconsideration or, in the alternative, a stay pending a motion for leave to appeal. In an order entered February 24, 2015, the judge denied both of UCC's motions. In an accompanying decision, the judge reiterated that "to the extent any medical records may have been filed in Workers' Compensation Court, those records, absent any protective orders are part of the public record."

On March 4, 2015, we granted UCC's motion for leave to appeal and a stay of that portion of the court's protective order permitting disclosure of the records to third parties pending disposition of this appeal. UCC now raises the following points:


UCC acknowledges that it must produce its workers' compensation records for plaintiff's use in this litigation, but contends that the records are confidential in nature, and are thus entitled to a protective order prohibiting further dissemination beyond this litigation. Specifically, UCC contends that its current and former employees have a reasonable expectation of privacy in their workers' compensation records, and that the court erred in holding that those files and documents are "part of the public record" once they have been filed in workers' compensation court. UCC argues that the court should have weighed the privacy interests of the employees against plaintiff's interest in public disclosure using the factors articulated in Doe v. Poritz, 142 N.J. 1, 87-88 (1995). Finally, UCC argues that a proper weighing of the interests under Doe v. Poritz demonstrates that the ad hoc protective order put in place by the court was inadequate to secure the privacy of defendant's employees.

Plaintiff disputes UCC's arguments and claims the issue is not yet ripe for appeal because the court has not yet had occasion to hear the arguments of an objecting employee. We address the ripeness argument first.

To determine if a case is ripe for judicial review, the court must evaluate the fitness of the issues for judicial decision and the hardship to the parties caused by withholding court consideration. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 2030, 155 L. Ed. 2d 1017, 1024 (2003). A claim is not ripe for adjudication if the facts illustrate that the rights of the parties are "future, contingent, and uncertain." Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J.Super. 295, 302 (App. Div. 2005). A case is fit for review if the "issues in dispute are `purely legal,' and thus `appropriate for judicial resolution' without developing additional facts." Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 99 (2010) (quoting Abbott Labs v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L. Ed. 2d 681, 691 (1967)).

No additional facts are required for our review. Moreover, the trial court order requires UCC to notify former employees that their medical records are subject to disclosure and relies on those employees to come forward to challenge that disclosure. Under the judge's order, failure to respond is treated as a waiver of any privacy rights the former employee may have in the records. We are satisfied that this issue is fit for judicial review and there is a potential for hardship if review is withheld.

In her four-page decision denying reconsideration, the motion judge held that UCC's former and current employees would not have their privacy violated by disclosure because "to the extent any medical records may have been filed in Worker's Compensation Court, those records, absent any protective orders, are part of the public record."

While we agree that N.J.S.A. 34:15-62 requires that all workers' compensation hearings "shall be open to the public," it does not follow that, by participating in such a hearing, an employee forfeits all expectation of privacy in medical records introduced therein. A participant in a workers' compensation hearing who agrees to the disclosure of medical records does so for the limited purpose of establishing a right to benefits, and does not intend or anticipate the release of that information for use in unrelated litigation.

One of the two main substantive privacy interests protected by the Due Process Clause of the Fourteenth Amendment is "the individual interest in avoiding disclosure of personal matters[.]" Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L. Ed. 2d 64, 74 (1977). "[A]n employee's medical records, which may contain intimate facts of a personal nature, are well within the ambit of materials entitled to privacy protection." United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980).

N.J.S.A. 34:15-128(a)(1) prohibits disclosure of workers' compensation records by the Division of Workers' Compensation, unless "[t]he information is provided in a manner which makes it impossible to identify any claimant." In 2002, the Legislature enacted the Workers' Compensation Medical Information Confidentiality Act, which provides in pertinent part:

a. In any case of an individual seeking workers' compensation from an employer, it shall be unlawful for the employer, the workers' compensation insurance carrier of the employer, a health care provider treating or evaluating the individual in connection with the case, or a third party in the case, or their agents, to disclose any medical information regarding the individual to any person other than a participant in that workers' compensation case, a reinsurer, the health care provider, medical and non-medical experts retained in connection with the case, the division, or the Compensation Rating and Inspection Bureau, except under the following circumstances: (1) The information is disclosed in a manner that makes it impossible to ascertain the identity of the individual[.] [N.J.S.A. 34:15-128.3].

When UCC submitted a proposed protective order, it contained a provision limiting the use of confidential information "only for preparation and trial of this case." At oral argument before the motion judge, counsel for plaintiff suggested that the proposal was "unworkable" because he sought to use records obtained in this case in other litigation against UCC:

That means that the next time I have a case — and this is why I — the procedure proposed. . . is unacceptable to us. The next time I have a worker — a Union Carbide case where the same expert is used, in order to fulfill my professional obligation, I can't forget that these records are there. And I can't fulfill my ethical obligations to my clients by destroying those records that I know are relevant or that I know are useful in cross-examining an expert or if I am co-counsel in a case in Chicago, Illinois, in using those.

In plaintiff's brief, her counsel admits that he intends to use the employee medical records obtained in this case "to prove [UCC's] liability in other litigation." During oral argument before us, plaintiff's counsel explained that this was necessary because victims of mesothelioma have a short life expectancy and it is important to avoid discovery delays.

The order entered by the motion judge places no restrictions on future use of medical records obtained in this matter. Former employees who consent to use of medical records in this case or fail to respond, risk having those records used in other litigation, without limitation.

As the judge's protective order fails to adequately protect the privacy interests of UCC's former employees, we are remanding this matter for the entry of a more comprehensive protective order. Both N.J.S.A. 34:15-128 and N.J.S.A. 34:15-128.3(a) prohibit disclosure of workers' compensation records unless all personal identifying information has been removed. Thus, a protective order would require the redaction of all personal identifying information of the employee.

Should plaintiff seek disclosure of medical records which could possibly identify the former employee, and that individual has not consented to disclosure, the trial judge should only order production after consideration of the factors set forth in Doe v. Poritz, supra:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. [142 N.J. at 88 (quoting Faison v. Parker, 823 F.Supp. 1198, 1201 (E.D. Pa. 1993)).]

UCC notes that most of the impacted former employees have not worked for UCC for several decades and many of them are deceased. While privacy interests are not automatically extinguished by death, the legal protection accorded to this type of privacy interest is lessened once the employee is deceased.

Finally, the interest that plaintiff's counsel has in expediting other asbestos litigation against UCC does not outweigh the privacy interests the former employees have in their medical records. Unless the former employees specifically consent to the use of their records beyond this litigation, the use will be limited to this matter. We are not convinced that plaintiff has demonstrated a legitimate need for disclosure beyond that secured by defendant's proposed protective order.

Reversed and remanded for entry of a protective order consistent with this opinion. We do not retain jurisdiction.


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases