Stuart Calwell
John Skaggs
Vincent Trivelli
The Law Offices of Stuart Calwell, PLLC
Charleston, West Virginia
Attorneys for the Appellants
Thomas E. Scarr
Michael A. Frye
Jenkins Fenstermaker, PLLC
Huntington, West Virginia
Attorneys for the Appellee,
ACF Industries, Inc.
John R. McGhee, Jr.
Kay, Casto & Chaney, PLLC
Charleston, West Virginia
Attorney for the Appellee,
Carboline Company
Marc E. Williams
Rodney L. Baker
Huddleston, Bolen, Beatty, Porter & Copen
Huntington, West Virginia
Attorneys for the Appellee,
Fina Oil and Chemical Company
The Opinion of the Court was delivered Per Curiam.
JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
1. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. “A motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co.,
148 W.Va. 160, 133 S.E.2d 770 (1963).
3. “A plaintiff may establish 'deliberate intention' in a civil action against an
employer for a work-related injury by offering evidence to prove the five specific
requirements provided in W.Va. Code § 23-4-2(c)(2)(ii) (1983).” Syl. Pt. 2, Mayles v.
Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15 (1990).
4. “[W]hile a plaintiff may choose to introduce evidence of prior similar
incidents or complaints to circumstantially establish that an employer has acted with deliberate
intention, evidence of prior similar incidents or complaints is not mandated by W.Va. Code,
23-4-2(c)(2)(ii) [1994].” Syl. Pt. 2, in part, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608,
550 S.E.2d 398 (2001).
5. “[A] plaintiff attempting to impose liability
on the employer must present sufficient evidence, especially with regard to
the requirement that the employer had a subjective realization and an appreciation
of the existence of such specific unsafe working condition and the strong probability
of serious injury or death presented by such specific unsafe working condition.
This requirement is not satisfied merely by evidence that the employer reasonably
should have known of the specific unsafe working condition and of the strong
probability of serious injury or death presented by that condition. Instead,
it must be shown that the employer actually possessed such knowledge.”
Syl. Pt. 3, in part, Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633,
408 S.E.2d 385 (1991).
Per Curiam:
Appellants, James and Nancy Tolley, appeal from the
July 27, 2001, order of the Circuit Court of Kanawha County granting summary
judgment to Appellee ACF Industries, Inc. (“ACF”) in connection
with their “deliberate intention” statutory cause of action.
(See footnote 1) In
the underlying cause of action, Appellants alleged that, as a result of his
employment in the paint department of ACF, Mr. Tolley sustained certain breathing
ailments, including aggravation of preexisting asthma and hypersensitivity
pneumonitis. Appellants seek a reversal of the lower court's ruling, arguing
that they demonstrated genuine issues of fact sufficient to defeat the summary
judgment motion. Upon our review of the arguments raised in conjunction with
the record submitted in this case, we find no error and, accordingly, affirm.
After December 1, 1995, Mr. Tolley was unable to work
due to acute prostatitis. While off work due to that condition, he sought
treatment for certain breathing difficulties on April 1, 1996, and was diagnosed
as having allergic asthma. Mr. Tolley returned to work on April 22 and 23,
1996, but those were his last two days of employment at ACF.
(See footnote 4)
On May 6, 1996, Mr. Tolley's treating physician diagnosed him as unable to
work due to asthma and hypotension, but noted that this medical disability did not arise from
his employment. After being diagnosed with severe obstructive disease and asthma in July
1996, Mr. Tolley filed a workers' compensation claim upon Dr. Ranavya's finding that he was
permanently and totally disabled as a result of occupational lung disease. Dr. Zaldivar, the
physician who evaluated Mr. Tolley at the request of the Workers' Compensation Fund,
concluded that, although Mr. Tolley stated he had hypersensitivity pneumonitis, his condition appeared to be asthma unrelated to occupation.
(See footnote 5) Notwithstanding Dr. Zaldivar's conclusion,
Mr. Tolley's workers' compensation claim was ruled compensable.
On March 17, 1997, Appellants filed a cause of action against ACF and various other corporate entities that allegedly manufactured paint products used at ACF during the relevant period (See footnote 6) of Mr. Tolley's employment at ACF. (See footnote 7) Appellants alleged injury against ACF on grounds of “deliberate intention,” products liability, and negligence. By order entered on December 1, 1998, the circuit court dismissed with prejudice the negligence and products liability claims asserted by Appellants against ACF, finding that workers' compensation benefits and a civil action for excess damages allegedly caused by the “deliberate intention” of the employer are “the sole and exclusive remedies available to an injured employee who alleges that his injury occurred in the work place.” (See footnote 8)
On January 27, 2000, ACF filed a motion for summary judgment. Following
hearings on March 20 and 29, 2000, the circuit court issued its decision on July 27, 2001,
granting summary judgment to ACF. Through this appeal, Appellants seek a ruling reversing
that decision and permitting them to proceed to trial against ACF.
(B) That the employer had a subjective
realization and an appreciation of the existence of
such specific unsafe working condition and of the
high degree of risk and the strong probability of
serious injury or death presented by such specific
unsafe working condition;
(C) That such specific unsafe working condition was a
violation of a state or federal safety statute, rule or regulation,
whether cited or not, or of a commonly accepted and well-known
safety standard within the industry or business of such employer,
which statute, rule, regulation or standard was specifically
applicable to the particular work and working condition involved,
as contrasted with a statute, rule, regulation or standard generally
requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C) hereof, such employer
nevertheless thereafter exposed an employee to such specific
unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury
or death as a direct and proximate result of such specific unsafe
working condition.
W.Va. Code § 23-4-2(c)(2)(ii).
In its lengthy judgment order, the circuit court separately
addressed these five statutory factors and concluded, in each instance, that
Appellants had failed to establish the requisite element. Appellants argue
that the decision of ACF not to monitor for the presence of a specific type
of chemical -- isocyanates -- is the underlying reason for the lower court's
conclusion that they cannot meet the statutory factors. In response to the
circuit court's finding that Appellants failed to demonstrate that the ACF
plant had excessive levels of isocyanates,
(See footnote 9) which in turn caused an unsafe working
condition, and further failed to produce evidence that Mr. Tolley was ever
exposed to isocyanates during his employment in the ACF paint department,
Appellants contend that they only have to demonstrate the opportunity for
exposure and not actual levels of exposure. We proceed to examine each of
the five factors required to demonstrate a “deliberate intention”
action under West Virginia Code § 23-4- 2(c)(ii) to determine whether
Appellants raised genuine issues of material fact as to each of the five elements
-- a necessary prerequisite to jury consideration of this type of case.
With no specific references to actual evidence submitted, Appellants state
simply “[i]t is clear that ACF violated these Material Safety Data Sheets.” In similar
conclusory fashion, Appellants assert that “ACF's actions violated fundamentals of basic
industry standards regarding industrial hygiene and safety.”
As to the decision not to monitor specifically for isocyanates, the circuit court
found the following:
1. Plaintiffs have presented no evidence that plaintiff James
Tolley was actually exposed to isocyanates or phthalic anhydrides
(See footnote 10) either in the Exterior Finish Booth, or
in the Exterior Prime Booth, or in open areas within the Paint Department.
At most, the plaintiffs can establish that plaintiff had the “potential”
or “opportunity” for such exposure.
2. No facts or evidence have been produced to support plaintiffs'
general allegation that plaintiff James Tolley was exposed to
hazardous levels of isocyanates or phthalic anhydrides while
working at ACF's Paint Department. While plaintiff generally
testifies that he believes he was exposed to the chemicals at issue
in this case and that he was exposed to hazardous levels,
plaintiff's causation and liability experts indicate that the extent
of their opinions is that there was a “potential” or “opportunity”
for exposure.
3. While there is evidence that ACF was aware that exposure to
certain hazardous chemicals could cause respiratory problems,
the evidence indicates that as a result of that awareness, ACF took
various precautionary remedial measures to eliminate this
potential hazard. . . .
4. Plaintiffs allege that ACF should have tested directly for the
chemicals at issue in this case, i.e. isocyanates and phthalic
anhydrides, rather than relying on solvent testing to estimate the
amount and levels of these chemicals, and failure to do so
violates 29 CFR 1910.134. However, as plaintiffs' experts
acknowledge, 29 CFR 1910.134 does not expressly require an
employer to monitor specifically for these chemicals; plaintiffs'
experts simply infer such a requirement.
5. Levels of isocyanates were not specifically measured because
ACF determined that based on its knowledge and information
concerning the nature and chemical characteristics and amount of
the isocyanates used, and certain inherent testing problems effecting the accuracy of such monitoring,
(See footnote 11) specific testing for isocyanates was not
necessary or practical.
6. Based on the specific testing performed for solvents and other
chemicals, and based on its institutional knowledge concerning
the known concentration of the isocyanates in the coatings, their
chemical characteristics, ventilation and other engineering
controls in place, ACF concluded that the isocyanates were below
safe and permissible exposure levels and/or threshold limit
values, and therefore there was no meaningful opportunity for
overexposure to isocyanates.
7. While plaintiffs' experts assert that ACF's primary failing was
in using solvent levels as a basis to estimate the levels and
concentrations of other chemicals in the Paint Department, in
essence disagreeing with ACF's exercise of professional
judgment, they readily agree that using professional judgment is
common and an expected industrial hygiene practice.
In its conclusions of law, the trial court further addressed this issue of ACF's
decision not to monitor for isocyanates:
The undisputed evidence indicates that ACF made a
judgment that using solvent testing to estimate levels and
concentrations of other chemicals was appropriate, and that based
on available information, it had eliminated the potential for
excessive exposure to the chemicals at issue in this case. While
plaintiffs' experts disagree with the manner in which ACF
performed its evaluation, plaintiffs' experts admit that good, well
intentioned and well qualified individuals can disagree about the
manner of performing industrial hygiene. Plaintiffs' experts
essentially conclude that ACF “should have” used a different
method of testing for the chemicals at issue in this case.
However, what a person “should have” done is a negligence
question and is insufficient to satisfy the deliberate intent
standard applicable in this case.
Appellants seek to have this Court, with no evidence
of actual exposure to isocyanates,
(See footnote 12) conclude that an unsafe working condition
can be determined to exist merely based on the possibility of exposure to
a harmful chemical. While the case may one day present itself of a chemical
so noxious that non-monitoring is in itself sufficient to constitute an unsafe
working condition, this is not such a case. The nature of the particular chemical
involved here and its specific use at ACF has been demonstrated by the Appellee
to have a very limited temporal period for potential exposure.
(See footnote 13)
This is because the isocyanate at issue -- HDI -- polymerizes quickly and
once the hardening occurs, there is little toxic effect, if any.
(See footnote 14)
This fact, combined with the fact that Mr. Tolley did not work in the part
of the plant where products containing isocyanates were applied,
(See footnote 15)
strongly suggests that his breathing ailments were not caused by isocyanate exposure. In addition, blood testing results
indicated that Mr. Tolley had not been exposed to isocyanates.
(See footnote 16)
When the facts of this case are viewed in conjunction
with the known properties of the chemical at issue, there is, undeniably,
a paucity of evidence to support Appellants' claim of occupational asthma
induced by isocyanate exposure.
(See footnote 17) Absent some evidence of exposure,
(See footnote 18)
an unsafe working condition cannot be even argued to exist. Accordingly, we
find no basis from which to find that the lower court erred in reaching its
conclusion that Appellants failed to produce evidence of an unsafe working
condition sufficient to satisfy the first prong of the five-part “deliberate
intention” statutory cause of action. See W.Va. Code § 23-4-2(c)(2)(ii).
ACF had no basis for knowing that Mr. Tolley was experiencing
any breathing related difficulties due to the fact that he never complained
of symptoms consistent with chemical sensitization
(See footnote 20)
or suffered any episodes of spasmodic coughing or inability to breathe. Although there were multiple opportunities for Mr. Tolley to alert
his employer to a respiratory problem, if one existed, the record demonstrates
that not until 1996, approximately four months after he stopped working at
ACF due to his unrelated prostatitis, is there any evidence of Mr. Tolley
having a respiratory condition.
(See footnote 21)
This Court recently recognized in syllabus point two
of Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550 S.E.2d 398 (2001),
that “while a plaintiff may choose to introduce evidence of prior similar
incidents or complaints to circumstantially establish that an employer has
acted with deliberate intention, evidence of prior similar incidents or complaints
is not mandated by W.Va. Code, 23-4-2(c)(2)(ii) [1994].” In contrast
to the facts demonstrated in Nutter to circumstantially
(See footnote 22)
indicate that the employer had the requisite subjective realization of a specific unsafe working condition,
(See footnote 23) this case does not contain even circumstantial
evidence tending to suggest that ACF was aware of excessive levels of isocyanates.
(See footnote 24)
We made clear in Blevins v. Beckley Magnetite, Inc., 185 W.Va. 633, 408
S.E.2d 385 (1991), that
a plaintiff attempting to impose liability on the employer must
present sufficient evidence, especially with regard to the
requirement that the employer had a subjective realization and an
appreciation of the existence of such specific unsafe working
condition and the strong probability of serious injury or death
presented by such specific unsafe working condition. This
requirement is not satisfied merely by evidence that the employer
reasonably should have known of the specific unsafe working
condition and of the strong probability of serious injury or death
presented by that condition. Instead, it must be shown that the
employer actually possessed such knowledge.
The record in this case makes clear that Appellants have failed to produce the
proof required to meet the subjective knowledge standard, either by direct or circumstantial evidence, of demonstrating that ACF was aware that it was exposing its employees
to excessive levels of isocyanates. See Nutter, 209 W.Va. at 613, 550
S.E.2d at 403; see also Sias v. W-P Coal Co., 185 W.Va. 569, 575, 408
S.E.2d 321, 327 (1991) (recognizing that “[s]ubjective realization, like
any state of mind, must be shown usually by circumstantial evidence”).
Accordingly, we find no error with regard to the lower court's conclusion
that Appellants failed to introduce evidence that ACF had a subjective knowledge
and appreciation of a specific unsafe working condition.
Instead, Appellants attempt to inferentially impose a regulation on ACF to
monitor for isocyanates that does not exist. The trial court found that Appellants' “experts
admit that the alleged requirement for testing for the chemicals at issue in this case is not
actually in the regulation, but is simply an inference.” As the circuit court correctly held, “a
violation of a safety rule, regulation or statute based merely on an 'inference' does not satisfy
the requirements of W.Va. Code § 23-4-2(c)(ii)(C).” See Greene v. Carolina Freight
Carriers, 663 F.Supp. 112, 115 (S.D. W.Va. 1987) (discussing fact that “deliberate intention”
statute explicitly states that 'regulation . . . generally requiring safe [workplaces] . . . is
insufficient'” to establish this cause of action and finding that “statute or standard must
specifically address the unsafe working condition in question”); accord Mayles, 185 W.Va.
at 95, 405 S.E.2d at 22.
Appellants do not cite this Court to any statute, rule, or regulation that would refute the lower court's finding that “nothing contained in the applicable regulations expressly requires an employer to monitor specifically for these chemicals.” Rather, they make generalized, unsupported assertions such as: “The failure to monitor was also contrary to the well-established principals [sic] of industrial hygiene, both as reflected in industry and in the OSHA regulations.” Appellants rely heavily on the safety data sheets and try to infer some regulatory violation associated with such data sheets. The objective of the regulation addressing safety data sheets is clearly to inform employees regarding the identity and nature of specific chemicals being used, as well to identify associated health hazards of exposure.
See 29 C.F.R. § 1910.1200(g). There is no allegation that ACF
failed to prepare and use safety data sheets; instead Appellants seek to create
from this informational-based responsibility a duty to separately monitor
for isocyanates. No such duty exists. Arguably, any such duty would only arise
under a generalized notion of providing a safe workplace and, as discussed
above, a violation of such a general duty does not rise to the level of a
“deliberate intention” action. See W.Va. Code § 23-4-2(c)(ii)(C).
Accordingly, we have no basis from which to conclude that the lower court was
in error in ruling that Appellants had failed to establish a violation of any state or federal safety
statute, rule or regulation or applicable industry standard.
This Court has previously discussed what type of evidence is necessary to meet
the fourth prong of the “deliberate intention” standard. In Mayles, we found sufficient
evidence was introduced where “management at the restaurant knew how the employees were
disposing of the grease, knew that a previous employee had been injured by such practice, had
received employee complaints about the practice, and still took no action to remedy the
situation.” 185 W.Va. at 96, 405 S.E.2d at 23. Similarly, in Sias, we held that the requisite
intentional exposure prong had been met where the plaintiff produced evidence that his coal
employer directed him to work in an unsafe mining area despite having actual knowledge of the
probability and risk of a coal outburst in that particular section of the mine. 185 W.Va. at 575,
408 S.E.2d at 327-28.
Fully recognizing that an allegation of intentional chemical exposure case is factually distinct from the restaurant and coal mining scenarios referenced above, nonetheless there still must be some evidence that, with conscious awareness of the unsafe working condition (here, it is allegedly excessive levels of isocyanates), an employee was directed to continue working in that same harmful environment. Of significance to the court below was the fact that other ACF supervisors worked in the same environment under the same conditions as Mr. Tolley, thereby similarly exposing themselves to the allegedly “harmful” chemicals. Rather than finding evidence of an irresponsible employer who failed to respond to safety concerns and identified problems, the trial court found that the evidence painted a picture of an employer that acted appropriately under the available information:
The undisputed evidence indicates that in an effort to
protect its employees from overexposure to various hazardous
chemicals, ACF adopted and implemented various precautions
and remedial measures, including adopting various policies and
procedures relating to safety training, hazard communications,
personal protective equipment, industrial hygiene and respirator
usage. In addition, all exterior spray painting operations were
conducted in enclosed or at least semi-enclosed paint booths,
which were equipped with exhaust fans, make up air and water
wash systems to reduce overspray. Spray painters were required
to wear full protective paint suits, air hoods and air supplied
respirators during painting operations. Other employees, like
plaintiff James Tolley, who would occasionally and for brief
periods of time go into a paint booth during spray painting
operations were required to wear vapor cartridge respirators.
This information certainly does not support a conclusion that
ACF intentionally exposed plaintiff James Tolley to hazardous
chemicals. Instead, it indicates that ACF acted to protect the
safety of its workers, including James Tolley, even if in hindsight
it ultimately turns out that ACF may have been wrong in any of its
industrial hygiene practices or decisions.
The facts of this case are clearly not on the level of those discussed above in the
Mayles or Sias cases where a conscious decision was made to require an employee to work
in a situation that presented an unsafe working condition. In marked contrast to those
decisions, this case is without a shred of evidence to suggest that ACF was aware of excessive
levels of isocyanates, and when fully apprised of such information, then made a decision to
subject Mr. Tolley to excessive levels of isocyanates. Under the facts of this case, we have
no basis from which to conclude that the lower court was in error in ruling that Appellants had
failed to establish that ACF intentionally exposed Mr. Tolley to a specific unsafe working
condition.
As the circuit court correctly ruled, “the law is clear that a mere possibility of
causation is not sufficient to allow a reasonable juror to find causation.” Just as Appellants
relied solely on the “opportunity” for exposure in arguing that they demonstrated an unsafe
working condition, they similarly rely on indeterminate expert testimony on causation that is
based solely on possibility. Critical to establishing exposure to a toxic chemical is knowledge
of the dose or exposure amount and the duration of the exposure. See Yeater v. Allied
Chemical Co., 755 F.Supp. 1330, 1338 (N.D. W.Va. 1991) (recognizing that critical factor in
determining whether employee was exposed to unsafe working condition is evidence of
intensity of exposure to chemicals or concentration levels ). In this case, there is absolutely
no evidence to demonstrate that Mr. Tolley was ever exposed to isocyanates. Without that
crucial evidence and certainly without any indication of isocyanate antibodies in his blood,
there is no basis from which a jury could begin to conclude that Mr. Tolley's breathing
condition resulted from exposure to isocyanates.
Dr. Lockey, an expert witness upon whom Appellants rely for causation, testified
that he had no knowledge of any of the factors that would impact on issues of exposure. For
example, he did not know how often Mr. Tolley was in the Exterior Finish Booth where the
HDI containing top coat was applied; how close Mr. Tolley was to the Prime Booth or to the
paint sprayers; the type of ventilation equipment used; or the frequency and level of exposure.
Acknowledging that this was a case of “potential exposure,” Dr. Lockey based his causation
testimony on Mr. Tolley's general representation that he “was in and out of the area on a
regular basis.” Other than a single pulmonary function test, Dr. Lockey did not review any of
Mr. Tolley's medical records for the relevant time period.
Dr. Lockey, as the trial court specifically found, “testified that the plaintiff's
current respiratory problems could be aggravation of preexisting asthma, predating his
employment at ACF, exacerbated by non-specific irritants irrespective of any exposure at ACF
to the chemicals at issue.” Given the lack of any evidence of exposure in this case combined
with the inability of Appellants' experts to connect his medical symptoms to the alleged
exposure, we simply cannot find that the lower court erred in concluding that Appellants'
“general conclusion [that Mr. Tolley had the opportunity for exposure to asthma sensitizers]
does not establish actual exposure and does not satisfy the proximate cause requirement of the
West Virginia Workers' Compensation Act.”
As the trial court correctly recognized, this case, due to the lack of sufficient
evidence meeting each of the five prongs of the “deliberate intention” standard, is one that
squarely falls within the legislative mandate included in the subject statute: “[T]he court shall
dismiss the [“deliberate intention”] action upon motion for summary judgment if it finds,
pursuant to Rule 56 of the Rules of Civil Procedure that one or more of the facts required to
be proved by the provisions of subparagraphs (A) through (E) of the preceding paragraph (ii)
[W.Va. Code § 23-4-2(c)(ii)] do not exist.” W.Va. Code § 23-4-2(c)(iii)(B).
Based on the foregoing, the decision of the Circuit Court of Kanawha County
is hereby affirmed.
While we appreciate that fact that the lack of exposure evidence is attributable, in part, to ACF's decision not to monitor for isocyanates, Appellants did not avail themselves during the discovery phase of this case of the opportunity to conduct any air monitoring of the plant for isocyanate levels. ACF observes additionally that Appellants “never performed any modeling using information regarding work site ventilation” or “attempted in any way to estimate the amount of chemical to which [Mr.] Tolley was allegedly exposed.”
decision on the issue of subjective realization of the unsafe working condition at issue. See 209 W.Va. at 613, 550 S.E.2d at 403.