Joiner v. General Elec. Co.

• Decision Date: 16 September 1994
• Docket Number: Civ. No. 1:92-CV-2137-ODE.
• Citation: 864 F. Supp. 1310
• Parties: Robert K. JOINER and Karen P. Joiner v. GENERAL ELECTRIC COMPANY Westinghouse Electric Corporation, and Monsanto Company.
• Court: U.S. District Court — Northern District of Georgia

864 F. Supp. 1310

Robert K. JOINER and Karen P. Joiner v. GENERAL ELECTRIC COMPANY Westinghouse Electric Corporation, and Monsanto Company.

Civ. No. 1:92-CV-2137-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

September 16, 1994.

Michael J. Warshauer, Burge & Wettermark, Atlanta, GA, for plaintiffs.

Anthony L. Cochran, Gary Gage Grindler, Chilivis & Grindler, Atlanta, GA, for defendant General Elec. Co.

David H. Flint, Alexander Jackson Simmons, Jr., Schreeder Wheeler & Flint, Atlanta, GA, for defendant Westinghouse Elec. Corp.

Joseph Claude Freeman, Jr., Joanne Beauvoir Brown, Freeman & Hawkins, Atlanta, GA, for defendant Monsanto Co.

ORDER

ORINDA D. EVANS, District Judge.

This diversity action is before the court on Defendants' joint motion for summary judgment, Defendants' request for oral argument on their motion for summary judgment, Plaintiffs' request for oral argument on Defendants' motion for summary judgment, and General Electric Company's motion requesting supplemental brief. Plaintiffs have filed a response in opposition to Defendants' motion for summary judgment; Plaintiffs' time to respond to the motion requesting supplemental brief has not yet expired.

Unless otherwise noted, the evidence of record shows that the following facts are not in dispute: Robert K. Joiner ("Joiner") was born on February 9, 1954. Joiner smoked cigarettes for approximately eight years. He quit in 1980 or 1981. For the last two to three years before he quit, Joiner smoked one pack of cigarettes a day. Both of Joiner's parents smoked around Joiner while he was growing up. Joiner's father, who died when Joiner was 12, smoked throughout the time Joiner knew him. Plaintiff's mother, who died of lung cancer when Joiner was 23, smoked up to the time of her death. Joiner's maternal uncle also died of lung cancer.

Since 1973, Joiner has worked for the City of Thomasville, Georgia ("City") in the City's Water & Light Department. For the last seven to eight years, Joiner has held the title of Chief Electrician. As an incident of his job Joiner has frequently worked with and around the City's electrical transformers and voltage regulators. Joiner testified that work on electrical transformers consumed 40 to 50% of his time, while work on voltage regulators took 1% of his time.¹

As a rule, a transformer is filled with a "dielectric fluid" that both cools and insulates the mechanism inside the transformer. This fluid typically has been a petroleum-based, flammable mineral oil. However, transformers filled with flammable mineral oil present a fire hazard when used in certain locations. Relatively early in this century a fire-resistant dielectric fluid was developed that did not contain mineral oil. Polychlorinated biphenyls ("PCBs"), a man-made chemical, were one component of the fire-resistant fluid. However, the PCB-based dielectric fluid was never widely used; "the EPA has estimated that less than two-tenths of a percent (0.2%) of all utility transformers were PCB transformers. See 47 Fed.Reg. 17426, 17428 (1982), `Polychlorinated Biphenyls (PCBs): Use in Electrical Equipment.'" (Defendants' Joint Memorandum in Supp. of Summ.Judg. "Defendants' Brief" at 6.)

With limited exceptions, Congress banned the production and sale of PCBs on January 1, 1978. 15 U.S.C. § 2605(e)(2)(A). Congress took this action because in its view PCBs "present an unreasonable risk of injury to health or the environment." See 15 U.S.C. § 2605(a).

Monsanto manufactured PCBs from 1935 to 1977.² General Electric Company ("GE") and Westinghouse Electric Corporation ("Westinghouse") manufacture both transformers and fire-resistant fluid. From the 1930s to the 1970s, both GE and Westinghouse marketed fire-resistant fluid containing PCBs; GE's product carried the trade name "Pyranol," while Westinghouse's carried the trade name "Inerteen."

Throughout the time of Plaintiffs employment, all of the City's transformers have used mineral oil-based dielectric fluid, which should be free of PCBs. However, beginning in 1983, the City discovered, via systematic testing, that the dielectric fluid in some of its transformers was contaminated with PCBs.³ From 1983 to 1993, the City tested approximately 2,668 of its transformers.⁴ Approximately half of the transformers tested showed PCB contamination. However, the EPA considers any transformer that contains PCBs at a level less than 50 ppm to be a "non-PCB transformer" which is not subject to regulation. 40 C.F.R. § 761.3 (1993). Of all the transformers tested, about 2.5% contained levels of PCBs above 500 parts per million ("ppm"), while about 16.7% contained levels above 50 ppm.⁵ Thus, almost one out of every five (i.e., 19.2%) of the transformers the City tested presented a PCB hazard.

When a transformer was in need of repair, it was ... Joiner's duty to open it up, drain out the dielectric fluid, bake the core of the transformer dry of dielectric fluid, make repairs which were within his skills, refill the transformer with fresh mineral oil dielectric fluid, and then test the transformer for proper operation. The process of repairing transformers required that ... Joiner stick his hands and arms into the dielectric fluid to perform necessary repairs and disassembles. The next step required the separation of the core of the transformer from the tank so that it could be dried, cleaned, inspected and repaired. This step also exposed ... Joiner to the dielectric fluid....

In order to dry the transformer, a process called "baking out" was followed. During the baking out process, the dielectric fluid which covered the core after it was untanked was baked off the transformers, for several days at a time, with the intense heat of football field lights, to the point of smoking, until the core was dry. Baking out is a recommended maintenance practice.

(Plaintiffs' Brief in Opp. to Defendants' Motion for Summ.Judg. "Plaintiffs' Brief" at 20-21.)⁶

In 1991, at the age of 37, Joiner was diagnosed with lung cancer. Defendants assert that Joiner's ailment is of a variety known as "small cell lung cancer." In response, Plaintiffs argue that "a description of the particular cancer as being `small cell' cannot be admitted as lung cancer cannot readily be catalogued this simply." (Plaintiffs' Response to Defendants' Statement of Material Facts, etc., ¶ 8.) Plaintiffs offer no evidence to support their objection. Moreover, through the affidavit of Joanne Beauvoir Brown, counsel for Monsanto Company ("Monsanto"), Defendants have submitted a pathology report that contains the following diagnosis:

We performed routine H & E staining on one slide and immunohistochemical staining for cytokeratin, T-cell antigen (UCHL) and B-cell antigen (L26) on the others. The routine H & E stained slide shows a poorly differentiated malignant tumor present within soft tissue. There is extensive crush artifact that makes interpretation difficult. However, the tumor is composed of small cells with dispersed nuclear chromatin pattern and scant cytoplasm. The cells infiltrate between adipose tissue and lack cohesion. The differential diagnosis on the routine stain is between a small cell carcinoma and a lymphoblastic lymphoma. Our immunohistochemical stains show weak staining in the cells for cytokeratin and negative staining for the lymphoid markers. These findings confirm the epithelial nature of the tumor and support a diagnosis of small cell carcinoma.

(Brown Aff., Ex. A.) Given this evidence, the court finds that there is no genuine dispute over the fact that Joiner suffers from small cell lung cancer.

Dr. Arthur L. Frank (M.D.) is one of Plaintiffs' experts. His affidavit provides in part as follows:

Lung cancer, like other cancers, begins with an initiated cell. The initiator can be any number of things including, but not limited to, tobacco smoke. An initiated cell does no harm by itself until it is promoted. An initiated cell can survive for a number of years without any harmful effects on the body. There are a wide variety of known and suspected promoters of lung cancer.

Epidemiology studies and statistics, and my own personal observations and experience, indicate that lung cancer is extremely rare for a thirty seven year old white male in the United States. This is true even for persons with a history of tobacco use. Lung cancer, as a general rule, is not seen until much later in life.

....

... It is more likely than not, given Mr. Joiner's limited tobacco use, and also considering his second hand tobacco smoke exposure, and given his age at the onset of lung cancer, 37 years, that tobacco smoke served only as the initiator of the cancer and that some other agent served as the promoter of the initiated cells. It was the promotion of the initiated cells which caused Mr. Joiner to be harmed.

(Frank Aff., ¶¶ 5, 6, 8.) Plaintiffs' theory, as stated by their experts, is that PCBs and their derivatives—polychlorinated dibenzofurans ("PCDFs" or "furans") and polychlorinated dibenzodioxins ("PCDDs" or "dioxins") —served as promoters of Joiner's lung cancer.

On August 5, 1992, Plaintiffs filed this action in the State Court of Fulton County, Georgia. Defendants timely removed the action to this court. The complaint contains the following counts:

Count One—Strict liability against GE and Westinghouse.

Count Two—Negligence against GE and Westinghouse.

Count Three—Fraud against GE and Westinghouse.

Count Four—Strict liability against Monsanto.

Count Five—Negligence against Monsanto.

Count Six—Loss of consortium against all Defendants.

Count Seven—Punitive damages against all Defendants.

On August 24, 1993, Plaintiffs, with leave of court, amended their complaint. This amendment made Count Seven a claim of battery against all Defendants, while the punitive damages claim became Count Eight.

Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with...