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Brown v. Arch Wood Protection, Inc.

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

September 25, 2017

KEVIN W. BROWN, PLAINTIFF,
v.
ARCH WOOD PROTECTION, INC., et al. DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wilhoit, Jr. United States District Judge

         This is a failure to warn products liability action wherein Plaintiff Kevin Brown, who works for a utility company, alleges he sustained harm from being occupationally exposed to toxic levels of arsenic contained in a chemical used to preserve the wood in utility poles on which he worked, [Docket No. 1], The Court now has before it several fully briefed motions. Specifically, three chemical preservative manufacturer Defendants and three wood-treating company Defendants have filed Daubert motions challenging the admissibility of certain testimony of Plaintiff s experts, and these Defendants contend the exclusion of this testimony requires judgment be entered in their favor as a matter of law. [Docket Nos. 163, 164, 165]. In addition, Defendants have filed summary judgment motions arguing that Mr. Brown's products liability claim fails on the issue of product identification and that his employer's failure to properly train and warn him was the superseding cause of his injuries. [Docket Nos. 159, 162]. Certain Defendants have also filed summary judgment motions arguing that because Mr. Brown's expert on warnings admitted his opinion was not directed to the chemical manufacturers and Defendant Langdale, Plaintiff cannot establish his failure to warn claim against them. [Docket Nos. 160 and 161].

         Mr. Brown also has dispositive motions pending. Specifically, Mr. Brown filed two summary judgment motions arguing that he is entitled to judgment as a matter of law on two issues: that he suffered cacosmia[1] as a result of his exposure to the arsenic in the chemical used to treat utility poles; and that two of the chemical manufacturers failed to warn of the hazards caused by splinters from wood treated with the chemical. [Docket Nos. 154 and 157]. In addition, after the close of all discovery and the filing of dispositive motions, Mr. Brown moved for an order compelling initial disclosures by the Defendants, specifically insurance policies from 1985 to the present.[2] [Docket No, 189].

         In considering these various motions, the Court finds its ruling in Stevens v. Arch Wood Protection, 0:12-cv-46-HRW, 2016 WL 5660362 (E.D. Ky. Sept. 28, 2016) is directly on point, The plaintiff there alleged his decedent was harmed from his exposure to the chemical used to preserve the wood in the utility poles on which he worked. This Court held defendants were entitled to judgment as a matter of law because plaintiff failed to present sufficient evidence supporting a reasonable inference that plaintiffs decedent was exposed to the defendants' products. Further, plaintiff had not established the requirements to support his concert of action theory against the two chemical-manufacturing defendants involved in that case.

         As explained below, Mr. Brown's claims suffer from the same deficiencies. That is, Mr, Brown has not pointed to any evidence supporting a reasonable inference that he was exposed to any of these Defendants' specific products. Nor has he raised any issues of fact on his concert of action theory. Thus, for the reasons more fully set forth below, the Court will grant Defendants' Motion for Summary Judgment on Product Identification. [Docket Nos. 159], Because lack of product identification is dispositive of the case, the parties' respective challenges on causation, failure to warn and Plaintiff's opinion testimony are moot, as is Plaintiffs Motion seeking to compel initial disclosures.

         I. FACTS [3]

         Mr. Brown alleges that during his employment at Kentucky Power Company (Kentucky Power) he was exposed to arsenic, chromium and copper contained in the chromated copper arsenate (CCA) chemical compound used to preserve the wood in utility poles and cross-arms. [Docket No. 1, ¶¶ 13-14, 47 and Deposition of Kevin Brown, Docket No. 159-2, pgs. 20, 34-37]. Mr. Brown began working for Kentucky Power in 1981 and is still so employed. [Docket No. 159-2, at pgs. 7, 47], He began his career on the line crew with Kentucky Power's Ashland Division, and he remained on the line crew until approximately 2003 or 2004. [Docket No. 159-2, pgs. 47-48]. In addition to building new facilities, line crews at that time had the responsibility for extinguishing pole fires.[4] [Id. and Docket No. 159-3, pgs. 3-4]. Mr, Brown moved from the line crew to a servicing position in 2003 or 2004. [Docket No. 159-2, pg. 63]. In his servicing position, Mr. Brown still climbs poles, including CCA-treated poles, but rarely, if ever, fights pole fires.[5] [Id. at pgs. 8, 18, 63].

         Mr. Brown alleges he was diagnosed with "adverse health effects consistent with significant exposure to arsenic from the CCA utility poles he handled, sawed, drilled, and extinguished fires [on]." [Docket No. 1, ¶ 33], Mr, Brown testified his adverse health effects include shortness of breath, fatigue, burning eyes, sensitivity to smells, numbness and tingling in his hands and feet, stiff joints in his neck, hip, ankles and knees, lower back pain and scarring from splinters.[6] [Docket No. 159-2, pgs. 4-6, 8-19, 29-30]. Mr, Brown stated he believes his health ailments are all caused by his exposure to the chemicals contained in CCA-treated utility poles, and he places specific emphasis on the arsenic in the CCA.[7] [Id. at pgs. 20, 26-27, 29-32].

         Mr. Brown filed this action against three producers of CCA (the chemical-manufacturing Defendants: Arch Wood Protection, Inc. (Arch), Osmose Inc. (Osmose), and Chemical Specialties, Inc. (CSI)) and three purchasers of CCA who used it to treat utility poles (the wood-treating Defendants: Koppers, Inc. (Koppers), Langdale Forest Products Company (Langdale), and T.R. Miller Mill Company, Inc. (T.R. Miller)). [Docket No. 1, ¶¶ 2-3]. Plaintiff claims that Defendants knew of the health hazards caused by CCA exposure, but failed to warn of these dangers. [Id. at ¶¶ 15, 17-18, 24, 31, 35-38, 46, 47, 49, 52].

          Defendants Arch, CSI, and Osmose admit in their respective Answers that they manufactured CCA and sold it to certain of the wood-treating Defendants. [Docket Nos. 48, pgs. 1-2; 49, pgs. 1-2 and 51, pgs. 1-2]. Defendants Koppers, Langdale, and T.R. Miller admit that they purchased CCA preservative from Arch, Osmose or CSI to treat utility poles they sold to Kentucky Power. [Docket Nos, 38, pgs. 3-4; 50, pg. 2 and 52, pg. 2]. Specifically, Koppers and T.R. Mi Her admit they bought CCA from Arch. [Docket Nos. 50, pg. 2 and 52, pg. 2], Defendant Langdale admits it bought CCA from CSI and Osmose. [Docket No. 38, pg. 3].

         The wood-treating Defendants contend, and Plaintiff does not dispute, that while they sold CCA-treated poles to Kentucky Power, they were not the only pole suppliers to Kentucky Power. Defendants presented records demonstrating that Kentucky Power purchased poles from at least seven other suppliers from 1992 to 2003. [Docket Nos. 159-4], Further, testimony was provided that there is no way to know where any particular pole purchased by Kentucky Power is installed. [Deposition of Timothy Weinmann, Docket No. 159-5, pg. 19].

         Mr, Brown explained in his Answers to Kopper's First Set of Interrogatories that while employed with Kentucky Power he has been exposed to arsenic, chromium and copper in CCA-treated utility poles through handling, drilling, sawing and climbing the poles. [Docket No. 159-6, pgs. 12-13]. He also stated he inhaled smoke while drilling the poles and while putting out fires on the poles. [Id.]. Mr. Brown stated his exposures occurred in Kentucky Power's Ashland Service Area, and he also mentioned he worked storm restoration for other utility companies outside the area. [Docket No. 159-6, pgs. 12-13].

         Mr. Brown testified that he attended hundreds of pole fires over the years, but he has not made any effort to identify the specific poles on which he fought fires. [Docket No. 159-3, pgs. 8, 55; see also Plaintiffs Objections and Responses to Defendant Kopper's First Requests for Admissions, Docket No. 159-7, pg. 4 (Mr. Brown admitted he "ha[s] not identified any specific utility pole that caused [his] alleged illness(es) in this lawsuit, ")]. Mr. Brown also testified that he did not have any documents identifying the poles on which he fought fires. [Docket No. 159-3, pg. 8].

         Defendants state they took the depositions of 24 of Mr. Brown's co-workers, but none of them could recall a specific pole fire they worked with Mr. Brown. Defendants filed six depositions as being representative of the testimony provided.[8] [Deposition of Carl Davis, Docket No, 159-10, pg, 14 (did not recall working a pole fire with Brown, but "sure [he] probably did"); Deposition of Bill Fraley, Docket No. 159-11, pgs. 10, 12 (could not recall a specific pole fire Mr. Brown worked on, but recalled him working fires); Deposition of Lloyd Ray burn, Docket No. 159-12, pg. 8 (could not recall a specific pole fire he worked on with Mr. Brown, but assumes they did work fires together because they were on the same crew); Deposition of Tony George, Docket No. 159-13, pg. 14 (saw Mr. Brown fight a lot of fires from a bucket truck, but could not recall a specific pole fire); Deposition of George Johns, Docket No, 159-14, pgs. 7, 14 and 21 (could not recall encountering a pole fire with Mr. Brown, but probably did); Deposition of Phillip Tolliver, Docket No. 159-15, pg. 35 (no specific recollection of seeing Mr. Brown responding to a pole fire)].

         Defendants seek summary judgment, arguing that because Mr. Brown has not produced any evidence he was exposed to their specific products, he cannot meet his burden of proving any of the Defendants' products specifically were a substantial cause of his injuries. [Docket No. 159-1]. In response, Plaintiff does not point to any evidence of his exposure to Defendants' products specifically, but argues he is not required to do so. He instead maintains that under a concert of action theory, the burden shifts to Defendants to prove their product was not the cause of his injuries, [Id. at pgs. 7-8].

         II. ANALYSIS

         A. Standard of Review

         Summary judgment is appropriate if the materials in the record "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a), (c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The evidence must be viewed in the light most favorable to the nonmoving party and all reasonable inferences must be drawn in that party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party has the ultimate burden of persuading the court that there are no disputed material facts and that he is entitled to judgment as a matter of law. Id. Once a party files a motion for summary judgment properly supported by either affirmatively negating an essential element of the nonmoving party's claim or establishing an affirmative defense, "the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252.

         B. Mr. Brown Has Not Presented Any Evidence Demonstrating That He Was Exposed to Defendants' Products Specifically.

         This Court set forth the applicable law on product identification for a Kentucky products liability claim in Stevens, 2016 WL 5660362, at **4-5, a case factually similar to the case at bar, Specifically, this Court explained:

In Kentucky, as part of any products-liability claim, a plaintiff must tie his injury to the defendant's product. Collins v. Ansel! Inc., No. 3:98-cv-259-H, 2003 WL 22769266, at *2 (W.D. Ky. Nov. 19, 2003) [(citing Holbrook v. W.A. Rose, 458 S.W.2d 155, 158 (Ky. 1970)]; see also In re Beverly Hills Fire Litig, No. 77-79, 1979 U.S. Dist. LEXIS 15403, at **8-9 (E.D. Ky. Nov. 14, 1979) (plaintiff must identify the product causing the harm and link it to a particular defendant); In re Martin v. Cincinnati Gas &Elec. Co., No. 02-201, 2006 WL 6353627, at *1 (E.D. Ky. 2006) ("Within the context of asbestos litigation, as with product liability generally, a plaintiff must identify the injury-causing product and its manufacturer in order to survive summary judgment.") (citing Roberts v. Owens-Corning Fiberglas Corp., 726 F.Supp. 172, 174 (W.D. Mich. 1989)). To that end, a plaintiff is required to show, for each defendant, that he was exposed to the defendant's product. Cf. Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005), see also Mannahan [v. Eaton Corp., No. 2013-CA-002005-MR, ] 2016 WL 3887037, at **3-4 [(Ky. Ct. App. July 15, 2016) ("Simply put, the plaintiff must prove that the defendant supplied the product that caused the plaintiffs disease or injury.") (unpublished) (citing Lindstrom, 424 F, 3d at 492) (the plaintiff is required to prove exposure to a "specific product" attributable to the defendant)].
After a plaintiff proves his exposure to a defendant's product, he must then establish that the exposure to the product was a substantial factor in causing the harm. Collins, 2003 WL 22769266, at *3 (court found no evidence upon which a reasonable fact finder could conclude the substantial and proximate cause of plaintiff s harm was more likely than not her exposure to defendant's product); see also Moeller v. Gatiock Sealing Tech., 660 F.3d 950, 954 (6th Cir. 2011) (noting, under Kentucky law, a plaintiff is required to prove a defendant's conduct was a substantial factor in bringing about the harm and stating "[c]ausation requires a link between the specific defendant's conduct and the plaintiffs injuries"). The substantial factor test requires the Court "to determine 'whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.'" Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003) (citing Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980)); Restatement (Second) of Torts § 43 l(1)(a). While causation is generally a question of fact for the jury, it "should not go to the jury unless the inference of causation is reasonable: it must 'indicate the probable, as distinguished from a possible cause.'" Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (quoting Briner v. Gen. Motors Corp,, 461 S.W.2d99, 101 (Ky. 1970)).

Stevens, 2016 WL 5660362, at **4-5.

         Stevens is directly on point. In Stevens, the plaintiff alleged his decedent, Mr. Stevens, who was Mr. Brown's co-worker, was harmed from his exposure to CCA used in the wood utility poles on which he worked. This Court held plaintiff failed to present sufficient evidence supporting a reasonable inference that Mr. Stevens was exposed to the defendants' products specifically, finding it fatal to plaintiffs products liability claim that he could not point to a single pole Mr. Stevens worked on that was supplied by one of the wood-treating defendants and he had not pointed to any evidence placing defendants' products in his immediate work environment. This Court held that "[m]erely stating that [defendants' products were somewhere at Kentucky Power was not sufficient to demonstrate their presence at the specific work sites where he worked." Stevens, 2016 WL 5660362, at **5-9. Plaintiff had not submitted sufficient evidence to permit a jury to reasonably infer that Mr. Stevens was exposed to defendants' particular products and thus he could not demonstrate their products were a substantial factor in causing Mr. Stevens's harm. Id. at *9. Thus, summary judgment was granted to defendants.

         Mr. Brown's products liability claim suffers from the same product identification deficiency as Stevens-hc has not identified a single pole that he worked on and thus cannot connect his injuries to any of the Defendants' products. Mr. Brown admitted he has not identified a specific pole that caused any of his illnesses. [Docket No. 159-7, pg. 4]. He also testified that while he could drive around and point out poles on which he fought fires, he has not made any effort to identify any such poles. [Docket No. 159-3, pg. 8]. Further, he testified he has no documents in his possession that indicate on which poles he fought fires. [Id.]. In addition, Plaintiff does not dispute that none of his 24 co-workers who were deposed were able to identify a specific pole on which he fought a fire. Nor has Mr. Brown pointed this Court to any other evidence, direct or circumstantial, that demonstrates he was, in fact, exposed to any of the Defendants' products.

         While Mr. Brown does not make any argument trying to connect his injury to Defendants' products specifically, to the extent various factual statements in his briefing can be read as an attempt to raise sufficient facts from which a jury could infer he was exposed to Defendants' products, the statements are not sufficient to raise a permissible inference. As the plaintiff did in Stevens, Mr. Brown points generally to the fact that Kentucky Power bought utility poles from the wood-treating Defendants, which poles had been treated with the chemical-manufacturing Defendants' CCA. But Brown does not dispute that Kentucky Power also bought poles from at least seven other companies.

         Further, while Plaintiff makes a statement in his Response that "evidence and reasonable inferences from the evidence establish that Kevin Brown was exposed to hundreds of utility poles that contained arsenic from Arch" and "[t]he same inference applies to all Defendants, " he does not point to any actual evidence upon which the Court could make such reasonable inferences.[9] [Docket No. 168, pgs. 8-9]. Nor does Mr. Brown make any attempt to connect any of the Defendants' products to a specific exposure. It is well established that a party opposing a motion for summary judgment must present evidence supporting his claims-"conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment." See cf. Jones v. City of Franklin, 617 F.App'x 279, 282 (6th Cir. 2017) (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

         The only other facts raised by Plaintiff in his Response that arguably could be directed to product identification concern only Defendant Arch:

Arch was the sole supplier of arsenic to T.R. Miller and Koppers. Arch was the only warrant or of the chromated copper arsenate utility poles. Arch was the self-proclaimed leader in the industry (50% of sales). Arch spent millions of dollars on marketing, which resulted in hundreds of millions of dollars in sales of Wolmanized® Brand Products. The circumstantial evidence and the inferences from the evidence establish that Arch supplied a substantial amount of the arsenic used to treat thousands [of] utility poles sold to Kentucky Power, to which Kevin Brown was exposed, beginning in 1985.

[Docket No. 168, pg. 28]. Mr. Brown also states "the evidence and inferences from the evidence establish that Arch was a primary supplier of arsenic to other wood treaters who sold chromated copper arsenate utility poles to Kentucky Power."[10] [Id. at pgs. 27-28], However, even assuming these statements to be true, they do not support an inference that Plaintiff was exposed to Arch's product or that its product was the substantial cause of his injuries.

         Like the Stevens case, this case is analogous to Collins v. Ansell, Inc., 2003 WL 22769266, In Collins, the Western District of Kentucky found the plaintiffs circumstantial evidence attempting to link the defendant latex glove manufacturer with her latex allergy was insufficient to withstand summary judgment where the attempted link was based on speculation. Collins, 2003 WL 22769266. The plaintiff admitted she had no evidence that she had direct contact with defendant's gloves, but argued that because the gloves had been supplied to her hospital employer and were used in the hospital (although in a different building), it was possible they had caused her injury by someone moving the gloves from place to place or by airborne contaminates. Id. at *2. The court noted plaintiffs theories did not have sufficient evidentiary foundation to sustain the reasonable inferences necessary to support them and, while possible, were mere speculation. Id. at *3. Thus, the fact that the defendant supplied gloves to the hospital and that they were used somewhere in the hospital where plaintiff worked was insufficient, on its own, to demonstrate her injury more likely than not was caused by her exposure to defendant's product.[11]

         Here, like Collins, Mr. Brown has only demonstrated that the wood-treating Defendants' products, along with those of at least seven other suppliers, were used by his employer. Also like Collins, Mr. Brown has not presented any evidence that he came into contact with or was exposed to any of the Defendants' products. Simply pointing to the fact that Defendants' products were used somewhere at Kentucky Power, without more, does not make it more likely than not that a wood-treating Defendant's CCA-treated utility poles, or a specific chemical-manufacturing Defendant's CCA, were a substantial factor in causing his injuries.

         Bryant v, Tri-County Electric Membership Corporation, 844 F.Supp. 347 (W.D. Ky. 1994) is also instinctive on the issue of product identification. In Bryant, the owners of a sawmill brought a claim against a manufacturer of electrical transformers, Kuhlman, arguing a 1988 fire that destroyed the sawmill was caused by a defect in transformers that were used at the sawmill prior to their removal in October 1986. Id. at 353-54. The owners maintained the transformers gradually caused damage to a switch, and the switch eventually exploded causing the fire, Kuhlman sought summary judgment, arguing plaintiffs had no evidence it manufactured the defective transformers. Plaintiffs admitted they did not have direct evidence Kuhlman manufactured the defective transformers, but argued the fact that Kuhlman was one of six manufacturers the electric company purchased transformers from in 1986 was sufficient to raise a question of fact as to whether the defective transformers were Kuhlman transformers. Id.

         The court disagreed, finding that Kuhlman being one of a limited number of transformer manufacturers who supplied transformers to the electric company did not support an inference that Kuhlman manufactured the defective transformers at issue. The court held "Kentucky law simply does not permit a jury to hold a party liable on the strength of a one-in-six possibility that the party acted irresponsibly." Id. at 354. The court noted plaintiff offered no evidence of distinctive characteristics of the transformers that would allow a reasonable jury to decide they were made by Kuhlman as opposed to one of the five other manufacturers. Id. The court granted summary judgment for Kuhlman, finding plaintiffs could not identify Kuhlman as the manufacturer of the transformers that allegedly contributed to plaintiffs' injuries.

         Bryant is analogous to the matter at hand. Kentucky Power purchased CCA-treated utility poles from at least ten suppliers from 1992 to 2003, but has no knowledge of where each pole purchased is located in its large network. Without direct or circumstantial evidence that Mr. Brown was exposed to any of the wood-treating Defendants' utility poles or to a specific chemical manufacturer's CCA, there is no basis to present this to a jury and permit it to infer that exposure to any of Defendants' products was a substantial factor in the harm he sustained, "While reasonable inferences are permissible, a jury verdict must be based on something other than speculation, supposition or surmise." See R & B Aircraft, Inc. v. ABG Ambulance Services, 949 F.2d 397, 1991 WL 256705, at *4 (6th Cir. 1991) (table decision) (quoting Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W, 2d 631, 633 (Ky. 1972)).

         In conclusion, Mr, Brown has not pointed to any evidence that he handled, sawed, drilled or fought a fire on a wood-treating Defendants' CCA-treated utility pole or that he was otherwise exposed to a specific chemical-manufacturing Defendant's CCA. Kentucky Power's purchase of CCA-treated poles from the wood-treating Defendants, and its installation of those poles somewhere in its network, points only to a possibility that Mr. Brown worked on a pole supplied by one of the wood-treating Defendants. Further, even though Mr. Brown testified to instances of fighting pole fires, without evidence of who manufactured any of those poles, this evidence does not establish the probability that the poles involved in those fires were supplied by a wood-treating Defendant. Mr. Brown's failure to identify any specific poles that allegedly caused his injuries also precludes him from identifying the chemical-manufacturer(s) who supplied the CCA for those poles. Thus, to the extent Mr. Brown's briefing can be read as an attempt to set forth sufficient circumstantial evidence to permit a jury to reasonably infer that he was exposed to any particular Defendant's product, his attempt fails.

         C. Concert of Action

         The thrust of Mr. Brown's argument in response to Defendants' Motion for Summary Judgment on Product Identification is that under a concert of action theory, the burden shifts to Defendants to prove they are not responsible for his injury.[12] [Docket No. 168, pgs. 7-8]. A plaintiff may proceed under a conceit of action theory to bypass the causation requirement if he can prove that the defendants acted tortiously pursuant to an agreement or common design or that they rendered substantial assistance to others to accomplish a tortious act. Dawson, 1988 WL 123929, at *3. Plaintiff points to documentary evidence that he alleges establishes that the Defendants, in various combinations, acted in concert to conceal the hazards of arsenic in CCA-treated utility poles, Mr. Brown's analysis as to how concert of action applies in this case, however, is often difficult to follow and/or understand. As explained more throughly below, the Court has reviewed ...


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