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Manning v. Arch Wood Protection, Inc.

United States District Court, E.D. Kentucky, Northern Division

August 21, 2014


For Fred L. Manning, Linda Manning, Husband and Wife, Plaintiffs: Matthew Joseph Schad, LEAD ATTORNEY, PRO HAC VICE, Schad & Palmer, PC - New Albany, New Albany, IN; Richard L. Masters, LEAD ATTORNEY, Masters, Mullins & Arrington, Louisville, KY; Robert S. McCrea, LEAD ATTORNEY, PRO HAC VICE, McCrea & McCrea, Bloomington, IN.

For Arch Wood Protection, Inc., Osmose Inc., Koppers, Inc., T.R. Miller Mill Company, Inc., Defendants: Anthony G. Hopp, Robert L. Shuftan, LEAD ATTORNEYS, PRO HAC VICE, Edwards Wildman Palmer LLP, Chicago, IL; James Michael Inman, LEAD ATTORNEY, Ronald L. Green, Green, Chesnut & Hughes PLLC, Lexington, KY, Jeremy S. Goldkind, LEAD ATTORNEY, Edwards Wildman Palmer LLP - IL, Chicago, IL.

For Chemical Specialties, Inc., Defendant: Anne K. Guillory, Robert M. Croft, Jr., LEAD ATTORNEYS, Dinsmore & Shohl, LLP - Louisville KY, Louisville, KY.

For Langdale Forest Products Company, Defendant: Michael Scott Jackson, Robert D. Bobrow, Robert Estes Stopher, LEAD ATTORNEYS, David Eugene Crittenden, Boehl, Stopher & Graves - Louisville KY, Louisville, KY.

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Candace J. Smith, United States Magistrate Judge.

This matter is before the Court on Motion of Defendants Arch Wood Protections, Inc. (" Arch Wood" ), Osmose, Inc. (" Osmose" ), Chemical Specialties, Inc. (" CSI" ), Koppers Inc. (" Koppers" ) and T.R. Miller Mill Co., Inc.'s (" T.R. Miller" ) (collectively " Defendants" ) to Require Plaintiffs to Produce an Expert Opinion on General Causation Before Discovery Commences (" Lone Pine Motion" ) and Defendants' Motion for Oral Argument on their Lone Pine Motion. (R. 43, 44). Plaintiffs filed a Response (R. 47) to which Defendants filed a Reply (R. 50). Having all relevant documents before the Court, the matter is now ripe for consideration. For the reasons that follow, both Motions will be denied.[1]

I. Background

Plaintiff Fred Manning worked as a line mechanic on a line crew for Kentucky Power Company (Kentucky Power) from May 16, 1990, until January 7, 2013. ( See R. 1, at ¶ 12). Manning claims that during his employment at Kentucky Power he was exposed to toxic levels of arsenic contained in chromated copper arsenate (CCA)--a substance used to preserve the wood in utility poles and cross-arms. ( Id. at ¶ ¶ 3, 13). He was allegedly exposed to CCA while handling, sawing, and drilling CCA-treated wood as part of his employment duties, as well as through fighting fires on the CCA-treated utility poles. ( Id. at ¶ 14). He claims he " was poisoned" by his exposure to arsenic in the CCA-treated utility poles and as a result has suffered health problems. ( Id. at ¶ ¶ 13, 33, 47). He specifically alleges that he suffers from such symptoms as: " headache, confusion, visual changes, heart palpitations, nose bleeds, dizziness, joint pain, nausea, skin cancer, severe sinus disease, bloody stools, hearing loss, allergic rhinitis, loss of sensitivity in skin, bronchitis, fatigue, polyps in nose, shortness of breath, cough, depression, anxiety, suicidal thoughts, metallic taste in mouth, and vomiting." ( Id. at ¶ 33).

Plaintiffs allege that Defendants Arch Wood, Osmose and CSI manufactured CCA. ( Id. at ¶ 2). They further allege that from 1981 until 2013, Defendants Koppers, Langdale Forest Products Co., and T.R. Miller purchased the CCA preservative from Arch Wood, Osmose and CSI to treat utility poles and cross-arms that were sold to Kentucky Power. ( Id. at ¶ ¶ 3, 45). Plaintiffs claim that Defendants knew of the health hazards caused by CCA exposure, but failed to warn of the dangers. ( Id. at ¶ ¶ 15, 17-28, 30, 31-38, 46-47).

This Court has three similar cases filed by former Kentucky Power Company employees

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against the Defendants, each claiming injury as a result of work-related exposure to the CCA-treated poles. See Stevens v. Arch Wood Protection, Inc., No. 0:12-46-HRW; McCarty v. Arch Wood Protection, Inc., No. 0:11-109-HRW; and Brown v. Arch Wood Protection, Inc., No. 0:13-61-HRW. Defendants filed a Lone Pine Motion in three of the four cases.[2] In Manning and Brown, Defendants ask that before discovery commences this Court require Plaintiffs to present proof that the CCA-treated wood caused Plaintiffs' injuries. In Stevens, Defendants seek such an order with discovery in progress, the discovery deadline having been extended until September 16, 2014. Defendants submit that if Plaintiffs can, in fact, establish causation, the causation information should be currently available since Plaintiffs' counsel's obligations under Rule 11 of the Federal Rules of Civil Procedure require them to perform an investigation of causation prior to filing suit. In support of their Lone Pine Motions, Defendants argue that ...

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