Adkisson v. Jacobs Eng'g Grp., Inc.
| Decision Date | 19 September 2018 |
| Docket Number | No.: 3:16-CV-636-TAV-HBG, No.: 3:15-CV-420-TAV-HBG, No.: 3:15-CV-17-TAV-HBG, No.: 3:13-CV-666-TAV-HBG, No.: 3:16-CV-635-TAV-HBG, No.: 3:14-CV-20-TAV-HBG,No.: 3:13-CV-505-TAV-HBG, No.: 3:15-CV-460-TAV-HBG, No.: 3:15-CV-462-TAV-HBG, No.: 3:15-CV-274-TAV-HBG,: 3:13-CV-505-TAV-HBG |
| Citation | 342 F.Supp.3d 791 |
| Parties | Greg ADKISSON, et al., Plaintiffs, v. JACOBS ENGINEERING GROUP, INC., Defendant. Kevin Thompson, et al., Plaintiffs, v. Jacobs Engineering Group, Inc., Defendant. Joe Cunningham, et al., Plaintiffs, v. Jacobs Engineering Group, Inc., Defendant. Bill Rose, Plaintiff, v. Jacobs Engineering Group, Inc., Defendant. Craig Wilkinson, et al., Plaintiffs, v. Jacobs Engineering Group, Inc., Defendant. Angie Shelton, as wife and next of Kin on behalf of Mike Shelton, et al., Plaintiffs, v. Jacobs Engineering Group, Inc., Defendant. Johnny Church, Plaintiff, v. Jacobs Engineering Group, Inc., Defendant. Donald R. Vanguilder, Jr., Plaintiff, v. Jacobs Engineering Group, Inc., Defendant. Judy Ivens, as sister and next of kin, on behalf of Jean Nance, deceased, Plaintiff, v. Jacobs Engineering Group, Inc., Defendant. Paul Randy Farrow, Plaintiff, v. Jacobs Engineering Group, Inc., Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
Gary A. Davis, James S. Whitlock, Davis & Whitlock, PC, Asheville, NC, Jeff Friedman, Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, AL, Keith D. Stewart, John B. Dupree, Stewart Dupree, PA, John Tyler Roper, Burroughs, Collins & Newcomb, PLC, James K. Scott, James K. Scott Assoc., P.A., Knoxville, TN, for Plaintiffs.
Alejandro L. Sarria, Pro Hac Vice, Kurt J. Hamrock, Pro Hac Vice, Covington & Burling, LLP, Washington, DC, James F. Sanders, James Issac Sanders, Marie T. Scott, Neal & Harwell, PLC, Jefferson C. Orr, Pro Hac Vice, Joshua K. Chesser, S. Joseph Welborn, Pro Hac Vice, Smith Cashion & Orr, PLC, Nashville, TN, for Defendant.
This matter is before the Court on defendant's two pending dispositive motions: one for summary judgment on the issue of general causation [Doc. 237], and one for judgment on the pleadings with respect to plaintiffs' strict liability claims [Doc. 251]. Plaintiffs oppose both motions [Doc. 253 (summary judgment); Doc. 254 () ]. Defendant replied for the summary judgment motion only [Doc. 263]. Recently, at the Court's request, the parties simultaneously filed supplemental briefs addressing biological plausibility and bioavailability, two matters relating to general causation [Doc. 296 (plaintiffs); Doc. 295 (defendant) ].
Defendant's summary judgment motion will be denied because plaintiffs have put forward evidence from which a reasonable jury could find that plaintiffs' exposure was capable of causing the complained-of diseases. Defendant's motion for judgment on the pleadings will be granted because plaintiffs do not have a cognizable strict liability claim under Tennessee state law. After a brief background, each motion will be addressed in turn.
The facts and procedural history of this case are long, complicated, and well-documented in numerous other court filings [E.g. , Doc. 39, at 2–16; Doc. 279, at 3–8]. The background necessary for resolving these motions follows.
Plaintiffs, who worked, or had spouses or next of kin who worked, on the fly ash1 cleanup, removal, and recovery project at the Kingston Fossil Fuel Plant following the December 22, 2008, ash spill in Roane County, Tennessee [see Doc. 59], brought these actions against defendant. Plaintiffs' claims are for negligence, negligence per se, recklessness, fraud, misrepresentation, and strict liability for ultrahazardous or abnormally dangerous activity [Id. at ¶ 70–125]. They allege that defendant's failings as construction manager caused plaintiffs' personal injuries, including pulmonary injuries, leukemia, sinus injuries, and skin problems, as a result of "continuous, unlawful exposure to arsenic, the neurotoxin mercury, barium, strontium, thallium, lead, silica, quartz, asbestos, radioactive material, selenium, aluminum oxide, iron oxide, calcium oxide, boron and other hazardous substances associated with" fly ash while working on the cleanup [Doc. 59 at ¶ 48, 89].
The trial will take place in two phases [Doc. 136]. "Phase I will involve issues and evidence relating to: (1) whether defendant owed plaintiffs a legal duty; (2) whether defendant breached that duty; and (3) whether defendant's breach was capable of causing plaintiffs' alleged injuries" [Doc. 136 at 7]. "Phase II will involve issues and evidence relating to: (1) specific causation with respect to individual plaintiffs; (2) each plaintiff's alleged injuries; and (3) the extent to which individual plaintiffs are entitled to damages" [ Id. ]. In other words, Phase I will deal with, among other things, the issue of general causation, and Phase II will deal with, among other things, specific causation concerning each individual plaintiff [ Id. ]. Phase I of the trial is currently scheduled for October 16, 2018 [Doc. 265]. Phase II would begin at some undetermined date thereafter.
Discovery disputes have ensued, all the details of which need not be recounted. Plaintiffs have withdrawn all of their experts, except for one: Dr. Paul Terry, an epidemiologist who will testify about general causation [Doc. 261, at 1, 5–6]. Magistrate Judge Guyton described Dr. Terry's expert report2 as follows:
Dr. Terry's general causation analysis, which seeks to answer whether "exposure to a chemical or other factor [can] cause a disease," now employs an extensive literature review methodology to determine whether specific components of coal fly ash reported to be present at the Site—fine particulate matter, arsenic, cadmium, chromium, lead, nickel, vanadium, and naturally occurring radioactive materials—are causally associated with the specific diseases reported by Plaintiffs, including hypertension, coronary artery disease, lung cancer, leukemia, non-melanoma skin cancer, allergic contact dermatitis, peripheral neuropathy, asthma, chronic obstructive pulmonary disease, and various respiratory conditions such as cough, sore throat, dyspnea on exertion, chest pain or discomfit, bronchitis, and emphysema.
[Doc. 279, at 4-6]. Defendants, arguing that Dr. Terry's opinions were not reliable, moved to exclude his report and testimony under Rule 702 and Daubert [Doc. 241]. Magistrate Judge Guyton issued an order denying that motion [Doc. 279]. Defendant's objections to that order were overruled [Doc. 291]. In the meantime, the Court took judicial notice of the existence of the Administrative Order on Consent [Doc. 287].
Defendants have two experts on general causation. Dr. Scott D. Phillips, a board-certified physician in internal medicine and medical toxicology, opines that "[p]laintiffs have not been exposed at Kingston Fossil Plant to levels of fly ash sufficient to cause illness," and that "[m]etals are bound to the fly ash particles and are not dissolving out of the particles and into the body to cause illness" [Doc. 237-7, at 6 of 90]. Dr. David. G. Hoel, an epidemiologist, has not addressed Dr. Terry's latest report, but states, "The scientific literature does not support Dr. Terry's conclusions about fly ash exposures at low exposure levels" [Doc. 237-8, at 7 of 41]. Dr. Hoel's report also generally discusses the science of epidemiology and epidemiological methods [Id. at 7–11].
Before the Court is defendant's motion for summary judgment on the issue of general causation, and also defendant's motion for judgment on the pleadings on its strict liability for ultrahazardous or abnormally dangerous activity. For the reasons that follow, the summary judgment motion will be denied, but the motion for judgement on the pleadings will be granted.
Summary judgment is not proper here because there is evidence in the record from which a reasonable jury could conclude that plaintiffs have met their burden on general causation. Plaintiffs have presented evidence that they, in general and as a group, were exposed to large amounts of coal and fly ash at the Kingston site and were not allowed to wear protection. Defendant concedes that the toxic constituents found in that ash can, under certain circumstances, cause the complained-of diseases. Moreover, Dr. Terry's report discusses the levels of various toxic constituents found within the Kingston fly ash, and concludes, based on his review of hundreds of epidemiological studies, that those levels can cause many of the complained-of diseases. Defendant's counterarguments—concerning biological plausibility and bioavailability—are unavailing, as a causal association can exist without either, and there is enough evidence for a reasonable jury to draw that conclusion here. For these reasons, summary judgment on the issue of general causation will be denied.
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper "if the movant shows 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). The moving party—here, defendant—bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett , 477 U.S. 317, 330 n.2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Moore v. Philip Morris Cos., Inc. , 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party, here, the plaintiffs.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Burchett v. Kiefer , 310 F.3d 937, 942 (6th Cir. 2002).
"Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations." Curtis Through Curtis v....
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