     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
