United States District Court, E.D. Kentucky, Northern Division, Ashland
KEVIN W. BROWN, PLAINTIFF,
ARCH WOOD PROTECTION, INC., et al. DEFENDANTS.
MEMORANDUM OPINION AND ORDER
R. Wilhoit, Jr. United States District Judge
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].
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 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. [Docket No, 189].
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.
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.
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. [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. [Id. at pgs. 8, 18, 63].
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. [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. [Id. at pgs. 20, 26-27,
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].
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].
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].
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].
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. [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)].
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].
Standard of Review
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.
Mr. Brown Has Not Presented Any Evidence Demonstrating That
He Was Exposed to Defendants' Products
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.
Stevens, 2016 WL 5660362, at **4-5.
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.
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
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.
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. [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,
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
[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." [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
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
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.
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
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.
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.
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.
Concert of Action
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. [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 ...