White v. The Dow Chemical Company , 321 F. App'x 266 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1165
MELODEE WHITE, Administratrix of the Estate of John H.
White, deceased, individually and as next friend and
guardian of M. W., an infant under the age of eighteen,
Plaintiff - Appellant,
v.
THE DOW CHEMICAL COMPANY, a foreign corporation; DOW
AGROSCIENCES L.L.C., a foreign corporation,
Defendants – Appellees,
and
JOHN DOE HERBICIDE AND CHEMICAL MANUFACTURING CORPORATION;
JOHN DOE HERBICIDE AND CHEMICAL DISTRIBUTING CORPORATION;
E.I. DUPONT DE NEMOURS & COMPANY, INCORPORATED, a foreign
corporation; ASPLUNDH TREE EXPERT COMPANY, a foreign
corporation; ARBORCHEM PRODUCTS COMPANY, a foreign
corporation; MONSANTO COMPANY, a foreign corporation;
PHARMACIA CORPORATION, a foreign corporation,
Defendants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:05-cv-00247)
Argued: January 28, 2009 Decided: April 8, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur L.
ALARCÓN, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Samuel A. Hrko, SEGAL LAW FIRM, Charleston, West
Virginia, for Appellant. Dean Taylor Barnhard, BARNES &
THORNBURG, Indianapolis, Indiana, for Appellees. ON BRIEF:
Scott S. Segal, SEGAL LAW FIRM, Charleston, West Virginia, for
Appellant. Joseph G. Eaton, William A. Hahn, BARNES &
THORNBURG, Indianapolis, Indiana; Paul J. Loftus, Marc E.
Williams, HUDDLESTON BOLEN, L.L.P., Huntington, West Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Melodee White (“Plaintiff”) appeals from the district
court’s order granting summary judgment in favor of the Dow
Chemical Company and Dow Agrosciences L.L.C. (the “Dow
Defendants”). Mrs. White, a citizen of Randolph County, West
Virginia, filed this products liability action on March 24, 2005
against the Dow Defendants, E.I. du Pont de Nemours and Company,
a foreign corporation (“DuPont”), Arborchem Products Co., a
foreign corporation, Monsanto Company, a foreign corporation,
Pharmacia Corporation, a foreign corporation, Asplundh Tree
Expert Co., a foreign corporation (“Asplundh”), John Doe
Herbicide and Chemical Manufacturing Corporation(s), and John
Doe Herbicide and Chemical Distributing Corporation(s), as the
Administratrix of the estate of her deceased husband, John W.
White, and in her individual capacity and as next friend and
guardian of her minor child. She filed this action in the
United States District Court for the Southern District of West
Virginia pursuant to 28 U.S.C. § 1332, based on the district
court’s diversity of citizenship jurisdiction over causes of
action between citizens of different states where the amount in
controversy exceeds the sum of $75,000, exclusive of interest
and costs.
Plaintiff alleged in her complaint that Mr. White died of
chronic myelogenous leukemia as a result of the defendants’
3
negligence, breach of warranty, and strict liability, because he
was exposed to their herbicides and/or pesticides while he was
employed by Asplundh. Subsequently, Plaintiff amended her
complaint naming only the Dow Defendants, DuPont, Asplundh, and
the John Doe Herbicide and Chemical Distributing Corporation(s).
In the amended complaint, Plaintiff alleged the same causes of
action.
The district court granted summary judgment in favor of the
Dow Defendants. It held that Plaintiff failed to show that her
husband’s injuries were caused by the Dow Defendants’ products.
Plaintiff contends that the district court erred in granting the
Dow Defendants’ motion for summary judgment because she
presented sufficient evidence “from which a reasonable juror
could return a verdict in favor of the Plaintiff.” We affirm
because we conclude that the evidence presented by Plaintiff in
opposition to the Dow Defendants’ motion for summary judgment
was insufficient under West Virginia’s products liability law to
demonstrate that any of the Dow Defendants’ herbicides caused
Mr. White’s illness.
I
A
Plaintiff filed her original complaint against John Doe
Herbicide and Chemical Manufacturing Corporation(s); John Doe
Herbicide and Chemical Distributing Corporation(s); The Dow
4
Chemical Company, a foreign corporation; Dow Agrosciences,
L.L.C., a foreign corporation; E. I. du Pont de Nemours and
Company, a foreign corporation; Asplundh Tree Expert Co., a
foreign corporation; Arborchem Products Co., a foreign
corporation; Monsanto Company, a foreign corporation; Pharmacia
Corporation, a foreign corporation.
She alleged in Count I that each of the defendants except
for Asplundh (“The Chemical Defendants”) were liable for their
negligence in manufacturing, processing or supplying toxic
chemicals that Mr. White used as an Asplundh employee which
caused him to develop chronic myelogenous leukemia, which was
the cause of his death.
In Count II, Plaintiff alleged that the Chemical Defendants
were liable for breach of warranty for impliedly warranting that
their herbicides and pesticides were of good and merchantable
quality.
In Count III, Plaintiff alleged that the Chemical
Defendants were strictly liable in tort for manufacturing,
processing, selling, or supplying chemicals that were in
defective condition and were unreasonably dangerous and unfit
for their intended use and were deleterious, poisonous and
highly harmful to Mr. White; and his exposure to their chemicals
caused his death from chronic myelogenous leukemia.
5
In Count IV, Plaintiff alleged that Asplundh demonstrated a
deliberate intention to expose Mr. White to unsafe working
conditions by: 1) using herbicides and other chemicals to
control unwanted vegetation without warning him of the hazards
posed by exposure to herbicides and other toxic chemicals; 2)
failing to provide him with adequate safety equipment; and, 3)
failing to conduct periodic physical examinations to monitor his
blood chemistry and health for signs of changes in his health as
the result of such exposure.
In Count V, Plaintiff alleged that each of the Defendants
should be ordered to pay damages for causing Mr. White conscious
pain and suffering, and mental and emotional distress prior to
his death.
In Count VI, Plaintiff alleged that Plaintiff is entitled
to wrongful death damages under West Virginia Code § 55-7-6.
B
On August 22, 2005, the Dow Defendants filed a motion
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
for a more definite statement “identifying the particular Dow
product(s) that Plaintiff contends caused or contributed to the
injuries at issue in this lawsuit.” Plaintiff filed a response
to the Dow Defendants’ motion on September 8, 2005. She
asserted that the allegations in the complaint “provide[d] Dow
with sufficient notice under Rule 8(a) of the substance of her
6
cause of action.” The district court denied the Dow Defendants’
motion for a more definite statement on September 16, 2005.
C
The Dow Defendants filed their answer to Plaintiff’s
complaint on September 26, 2005. Apart from admitting the
identity of the parties, the Dow Defendants denied each of the
substantive allegations set forth in paragraphs 1 to 40. In
response to paragraph 5 of the complaint, the Dow Defendants
alleged that they lack “knowledge or information sufficient to
form a belief as to the truth of the allegations that John W.
White used any products manufactured by The Dow Chemical Company
in his workplace, and therefore den[y] the same.”
D
On November 7, 2005, the district court ordered that
discovery should proceed in stages. Counsel were directed to
“submit to the court an agreed preservation order, which will
include provisions to assure preservation and retention of
documents and electronic records, including email, which are
relevant to this civil action.” The district court ordered that
“[f]rom January 3, 2006 through March 17, 2006, counsel shall
engage in informal discovery with respect to identifying the
substances to which John W. White was exposed prior to his
diagnosis.” The district court also ordered that “depositions
of individuals with knowledge of the substances to which John W.
7
White was exposed prior to his diagnosis” should be taken during
the week of March 13-17, 2006.
At a scheduling conference conducted on May 15, 2006, it
was agreed that “[p]rior to the next status conference, counsel
for Plaintiff[] will interview John White’s former co-workers to
determine to which substances, if any, John White was exposed
during his employment.”
A fourth status and scheduling conference was conducted on
June 12, 2006. The district court ordered that “[p]rior to the
next status conference, counsel for Plaintiff[] will continue to
interview John White’s former co-workers to determine to which
substances, if any, John White was exposed during his
employment.” The district court also ordered counsel for the
Dow Defendants, DuPont, Monsanto and Pharmacia to
interview long-time employees with knowledge of the
products marketed . . . to learn: -the identity of
products marketed during the period that John White
was employed by Asplundh; -those products which were
typically mixed with diesel fuel in the application
process. Dow, DuPont, Monsanto and Pharmacia will
produce information and labels for the products
identified.
On June 24, 2006, the district court conducted a fifth
status conference. The court ordered that
[p]rior to the next status conference, counsel for
Plaintiff[] will continue to interview John White’s
former co-workers to determine to which substances, if
any, John White was exposed during his employment.
Within one week, Asplundh will indicate whether
Plaintiff’s counsel may interview certain designated
8
management personnel outside the presence of counsel
for Asplundh. In addition, Asplundh will contact
employees in the Vegetation/Chemical Department for
information concerning that substances used to treat
utility rights-of-way during the period 1974-1993.
A sixth status conference was held August 21, 2006. The
district court issued the following order:
1. On or before August 25, 2006, counsel for Asplundh
will identify to counsel for Plaintiffs the names of
additional employees in the Vegetation/Chemical
Department during the period in question, if any.
2. On or before September 21, 2006, counsel will take
the depositions of four individuals who have executed
affidavits, and such other persons as counsel agree,
at times and places agreed by counsel for the parties.
3. Plaintiffs have leave of court to file an amended
complaint. The amended complaint will be filed on or
about October 6, 2006.
II
A
Plaintiff filed a first amended complaint on October 6,
2006. She named as defendants, the Dow Chemical Company, Dow
Agrosciences L.L.C., E.I du Pont de Nemours and Company,
Asplundh Tree Expert Co., and John Dow Herbicide and Chemical
Distributing Corporation(s). The first amended complaint
alleged that the Dow Defendants and DuPont were liable for
negligence, breach of warranty, and strict liability. It also
alleged that Asplundh was liable for deliberately intending to
expose its employees and Mr. White to unsafe working conditions.
9
Plaintiff eliminated from the first amended complaint Arborchem
Products Co., Monsanto Company, and Pharmacia as party
defendants. The court entered an order on November 6, 2006
dismissing Plaintiff’s claims against DuPont with prejudice at
Plaintiff’s request, and terminating the action against Monsanto
and Pharmacia.
The Dow Defendants filed their answer to the first amended
complaint on October 27, 2006. The Dow Defendants denied that
they were liable for negligence, breach of warranty, or strict
liability based on the condition of its products.
B
The Dow Defendants filed a motion for summary judgment on
January 17, 2007. They alleged that Plaintiff “has been unable
to present admissible evidence identifying any of the Dow
Defendants’ products to which John White was allegedly exposed.”
They also argued that none of the individuals relied upon by
Plaintiff for the purpose of identifying the Dow Defendants’
products “have any personal knowledge of White ever applying any
herbicides while with Asplundh. Further, none of these
individuals can or do testify that they ever saw White using or
being exposed to any of the Dow Defendants’ products on any
particular date or at any particular worksite.”
10
C
Plaintiff filed a response to the Dow Defendants’ motion
for summary judgment on February 5, 2007. She noted that as a
result of the parties named on the first amended complaint, and
orders of dismissal, the only remaining defendants were Asplundh
and the Dow Defendants.
To support her opposition to the Dow Defendants’ motion for
summary judgment, Plaintiff presented the declarations of
Asplundh employees who worked for that company in the same
positions held by Mr. White.
Charles McKinney declared in an affidavit that he worked
with Mr. White from around 1976 to 1979. He and Mr. White had
similar duties including the spraying of foliage with various
chemicals. During that time period, the Dow chemicals were
mixed with fuel oil or diesel fuel. This mixture was sprayed on
foliage. During spring and summer, Asplundh employees would
spray every day. While spraying, or walking through sprayed
foliage, diesel fuel and chemicals would get on the worker’s
clothing and body.
In his subsequent deposition testimony, reported on October
31, 2006, Mr. McKinney testified that he never observed Mr.
White while he was working. Mr. McKinney also testified that he
did not recall any chemical being mixed with diesel fuel.
11
Walter Lee Matthews declared in an affidavit that he worked
in the vegetation department of Asplundh. His duties were to
procure and distribute products in the field. During the 1970s
and 1980s, Dow products were used by the workers in the field.
When Mr. Matthews entered the chemical department of Asplundh in
1970, 70% of the herbicides were mixed with oil and 30% were
mixed with water. Later, the ratio changed; 98% were mixed with
water and 2% were mixed with oil. He never saw Mr. White in the
field. Mr. Matthews also never saw anyone spray the chemical
products that he provided Asplundh employees.
Michael E. Kline declared in an affidavit that he worked at
Asplundh beginning in 1980 through 1983. He again worked at
Asplundh from 1989 to 2001. He used Dow products mixed with
diesel fuel during the time period of 1980 to 1983. The
chemical and diesel fuel mixture would get on a worker’s body
when it was sprayed, or when a person walked through the foliage
after it was sprayed. Mr. Kline also testified that he never
worked on a crew with Mr. White, nor did he ever see him apply
herbicides.
Willis Cooley, Jr. testified that Mr. White was his general
foreman at Asplundh during the summer of 1997 and from April to
August of 1998. Mr. Cooley used Dow products in spraying
foliage. When Mr. White would visit work sites the spraying
12
would stop while he spoke to the crew, but residual spray would
get on him. Mr. Cooley never saw Mr. White spray herbicides.
James W. Orr stated in his affidavit that since 2000, he
has served as the general manager of the Technical Services
Division of Asplundh. In that capacity he provides information
relating to the biology and botany of trees and vegetation.
Since 1986, Asplundh has not used diesel fuel for treatments
calling for an oil dilutant. Instead, it uses Arborchem Basal
Oil – a mixture that does not include diesel fuel.
D
The district court denied the Dow Defendants’ January 17,
2007 motion for a summary judgment on March 9, 2007. It
concluded that the motion was premature because the completion
of discovery was not scheduled until June 19, 2007, and the
deadline for the filing of a motion for summary judgment and
other dispositive motions was set for August 23, 2007.
III
A
The Dow Defendants filed a renewed motion for summary
judgment on October 5, 2007. They alleged that “Plaintiff has
been unable to present admissible evidence identifying any Dow
product to which John White was exposed.” The Dow Defendants
noted that the district court had declined to address the merits
13
of their initial motion for summary judgment because discovery
was still ongoing. They asserted that “[d]iscovery is now
closed, yet the factual record remains the same.”
B
On October 19, 2007, Mrs. White filed an opposition to the
Dow Defendants’ renewed motion for a summary judgment. She
submitted her own affidavit that was sworn to on October 18,
2007. In her affidavit, Mrs. White alleged that she was married
to Mr. White in 1976. At that time, Mr. White was employed by
Asplundh. She declared that up until the early 1990s, Mr. White
“would come home at least three times a week, reeking of diesel
fuel.” Mr. White’s work clothes were placed in garbage bags and
laundered separately. Because she was unable to get the diesel
fuel smell and stains out of his clothing, she would frequently
discard them after several uses. Mr. White also complained that
his skin was burning from being exposed to diesel fuel. In
addition, Mr. White’s work vehicle smelled strongly of diesel
fuel.
In her response to the Dow Defendants’ motion, she argued
that a genuine issue of material fact exists as to whether or
not John White was exposed to products manufactured by the Dow
Defendants because “[t]he Affidavits of the Asplundh employees
indicate that Dow products were used on projects within the
relevant time period and the relevant geographical locations.”
14
C
The district court granted the Dow Defendants’ renewed
motion for summary judgment in an order issued on November 29,
2007. The district court held that, under West Virginia
substantive law, which it was required to apply in exercising
its diversity jurisdiction over Plaintiff’s state law claims
pursuant to Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938),
Plaintiff failed to prove the probability of the element of
causation. 1 In explaining its conclusion, the district court
stated: “In this case there is simply no evidence that Mr. White
was ever exposed to Dow products. All that is known is that Mr.
White may have been exposed to a variety of herbicides and
pesticides while in Asplundh’s employ.” 2
Plaintiff filed a timely notice of appeal on December 27,
2007. We have jurisdiction over the district court’s final
judgment pursuant to 28 U.S.C. § 1291.
1
In its order, the district court explained that “both
Asplundh and Dow have only been able to produce documents that
go back as far as 1999 and 1997, respectively, due to
destruction of documents that would yield this information.”
2
Asplundh filed a motion for summary judgment on October 5,
2007. It was denied as moot on October 19, 2007. Plaintiff and
Asplundh filed a petition to approve a settlement agreement on
January 25, 2008. It was approved on April 24, 2008.
15
IV
A
Plaintiff contends that the district court erred in
determining that the evidence presented in opposition to the Dow
Defendants’ motion for a summary judgment was insufficient to
demonstrate that Mr. White was exposed to Dow products.
Plaintiff argues that the district court did not view the
circumstantial evidence presented in opposition to the motion
for summary judgment in the light most favorable to the non-
moving party.
We review an appeal from an order granting summary judgment
de novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 283 (4th Cir. 2004). We must review the evidence in
the light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The party opposing summary judgment must produce
“evidence that would support a jury verdict.” Anderson v.
Liberty Lobby, 477 U.S. 242, 256 (1986). “The mere existence of
a scintilla of evidence in support of plaintiff’s position will
be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Id. at 252.
B
Under West Virginia law, a claim for negligence, breach of
warranty, and strict liability requires that the element of
16
causation be satisfied. Tolley v. Carboline Co., 617 S.E.2d
508, 511-12 (W. Va. 2005) (“Tolley II”). 3 Proximate cause is the
“cause which in actual sequence, unbroken by any independent
cause, produces the event and without which the event would not
have occurred.” Johnson v. Mays, 447 S.E.2d 563, 568 (W. Va.
1994). In toxic exposure cases, providing adequate evidence of
exposure is required to prove the element of causation and
survive a motion for summary judgment. See Tolley v. ACF
Indus., 575 S.E.2d 158, 168-69 (W. Va. 2002) (“Tolley I”);
Tolley II, 617 S.E.2d at 512-13.
In determining whether sufficient evidence of exposure
exists, a plaintiff must present evidence that shows more than a
“mere possibility” of exposure. Tolley I, 575 S.E.2d at 168-69.
“In a long line of decisions in this circuit, we have emphasized
that proof of causation must be such as to suggest ‘probability’
rather than mere ‘possibility,’ precisely to guard against raw
speculation by the fact finder.” Sakaria v. Transworld
3
See Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va. 2000)
(discussing requirement of proximate cause in negligence cause
of action); City Nat’l Bank of Charleston v. Wells, 384 S.E.2d
374, 382 (W. Va. 1989) (discussing requirement of proximate
cause in breach of warranty cause of action); Illosky v.
Michelin Tire Corp., 307 S.E.2d 603, 611 (W. Va. 1983)
(discussing the requirement of proximate cause in failure to
warn cause of action); Morningstar v. Black & Decker Mfg. Co.,
253 S.E.2d 666, 680 (W. Va. 1979) (discussing requirement of
proximate cause in strict liability cause of action).
17
Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993). To meet this
evidentiary burden, a plaintiff must demonstrate the amount,
duration, intensity, and frequency of exposure. See Lohrmann v.
Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)
(“To support a reasonable inference of substantial causation
from circumstantial evidence, there must be evidence of exposure
to a specific product on a regular basis over some extended
period of time in proximity to where the plaintiff actually
worked.”); Yeater v. Allied Chem. Co., 755 F. Supp. 1330, 1338
(N.D. W. Va. 1991) (holding that the “intensity of the exposure
is a critical factor” when determining whether an employee was
exposed); Tolley I, 575 S.E.2d at 169 (“Critical to establishing
exposure to a toxic chemical is knowledge of the dose or
exposure amount and the duration of the exposure.”).
In Tolley I, the plaintiff sued his employer and a number
of paint manufacturers alleging that his exposure to paint fumes
caused his breathing ailments. 575 S.E.2d at 160-61; Tolley II,
617 S.E.2d at 510-11. The trial court granted summary judgment
in favor of the employer. The Supreme Court of Appeals of West
Virginia affirmed summary judgment for the employer and later,
in Tolley II, affirmed summary judgment for the manufacturers
under the theory of collateral estoppel. Tolley I, 575 S.E.2d
at 169; Tolley II, 617 S.E.2d at 517. The Supreme Court of
Appeals of West Virginia held in each of the Tolley appeals that
18
the plaintiff failed to meet the proximate cause requirement
because he was exposed “to at least three different products
that can cause his condition.” Tolley I, 575 S.E.2d at 168;
Tolley II, 617 S.E.2d at 512.
Plaintiff contends that Roehling v. National Gypsum
Company, 786 F.2d 1225 (4th Cir. 1986), supports her contention
that she presented sufficient evidence to defeat the Dow
Defendants’ motion for summary judgment. Plaintiff argues that
in Roehling, this circuit held that direct evidence was not
required to prove that a plaintiff was exposed to an injurious
substance.
In Roehling, the plaintiff’s co-workers declared that they
and the plaintiff “worked in the same areas at the same time
adjacent to one another.” Id. at 1227. They also testified
that they were exposed to the defendants’ asbestos-containing
products. Id. This court held in Roehling that although the
plaintiff “could not himself remember what asbestos products
were used in this work area, the witnesses, who handled the
materials, have distinct memories: Owens-Illinois and National
Gypsum products. Such evidence raises a question of fact as to
whether Roehling was exposed to defendants’ products.” Id. at
1228.
Under Roehling, a plaintiff “need only establish that [he
or she] was in the same vicinity as witnesses who can identify
19
the products causing the asbestos dust that all the people in
the area, not just the product handlers, inhaled.” Id.Roehling is readily distinguishable from the question
presented in this appeal. This court held in Roehling that the
circumstantial evidence presented by plaintiff was sufficient to
withstand a motion for summary judgment because the plaintiff’s
co-workers identified the product he was exposed to when he
worked with them in the same area and at the same time. Id.Unlike the evidence in Roehling, there is no evidence, direct or
circumstantial, that Mr. White was exposed to the Dow
Defendants’ herbicides.
In her affidavit, Plaintiff alleged that Mr. White smelled
like fuel when he returned from work. She did not identify the
product that caused the odor as a Dow herbicide. The record
shows that Asplundh employees also mixed Krenite, manufactured
by DuPont, with diesel fuel. Indeed, Plaintiff alleged that Mr.
White reeked of diesel fuel until the early 1990s – well after
1986 when Asplundh stopped mixing herbicides with diesel fuel.
The district court allowed discovery to take place for two
years to allow Plaintiff an opportunity to develop facts
relating to product identification. Despite having had ample
time for discovery, Plaintiff was unable to identify the
specific herbicides Mr. White was actually exposed to while
working for Asplundh. In the absence of any evidence that Mr.
20
White was exposed to Dow herbicides, the element of causation
was not demonstrated in Plaintiff’s opposition to the Dow
Defendants’ motion for summary judgment.
V
Because we conclude that Plaintiff’s circumstantial
evidence was insufficient to demonstrate that there is a real
probability that Mr. White was exposed to a Dow product, we must
affirm.
AFFIRMED
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