Ball v. Joy Mfg. Co., Civ. A. No. 1:87-0268

• Citation: 755 F. Supp. 1344
• Decision Date: 08 November 1990
• Docket Number: 1:88-0133 and 1:88-1691.,Civ. A. No. 1:87-0268
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Rodney D. BALL, Sr., et al., Plaintiffs, v. JOY MANUFACTURING CO., a Pennsylvania Corporation, Defendant. Robert E. THOMPSON and Geneva Ann Thompson, Plaintiffs, v. JOY TECHNOLOGIES, INC. (formerly Joy Manufacturing Company), a Pennsylvania Corporation, Defendant. William R. LEVITT and Shirley Levitt, Plaintiffs, v. JOY TECHNOLOGIES, INC., a Delaware Corporation (formerly Joy Manufacturing Company, a Pennsylvania Corporation), Defendant.

755 F. Supp. 1344

Rodney D. BALL, Sr., et al., Plaintiffs, v. JOY MANUFACTURING CO., a Pennsylvania Corporation, Defendant.

Robert E. THOMPSON and Geneva Ann Thompson, Plaintiffs, v. JOY TECHNOLOGIES, INC. (formerly Joy Manufacturing Company), a Pennsylvania Corporation, Defendant.

William R. LEVITT and Shirley Levitt, Plaintiffs, v. JOY TECHNOLOGIES, INC., a Delaware Corporation (formerly Joy Manufacturing Company, a Pennsylvania Corporation), Defendant.

Civ. A. Nos. 1:87-0268, 1:88-0133 and 1:88-1691.

United States District Court, S.D. West Virginia, at Bluefield.

September 18, 1990.

As Amended November 8, 1990.

COPYRIGHT MATERIAL OMITTED

James B. Lees, Jr., James A. McKowen and David L. Stuart, Hunt & Wilson, Charleston, W.Va., for plaintiffs.

Dennis C. Sauter, Jackson & Kelly, Charleston, W.Va., for defendant.

MEMORANDUM ORDER AND OPINION

HALLANAN, District Judge.

This matter is before the Court via the Defendant's motion for summary judgment, the Plaintiffs' motion to certify questions of West Virginia law, and the Plaintiffs' motion to reconsider and/or amend judgment. After careful consideration of the pleadings filed relative thereto, as well as the oral argument of counsel addressing the motion for summary judgment, the Court is now prepared to render its ruling. For the reasons listed below, it is hereby ORDERED that the Defendant's motion for summary judgment is GRANTED, the Plaintiffs' motion to certify questions of West Virginia law is DENIED, and the Plaintiffs' motion to reconsider and/or amend judgment is DENIED.

SUMMARY OF FACTS

On or about the year of 1965, the Defendant Joy Manufacturing Company hereinafter "Defendant" began to manufacture and sell mining equipment. The Defendant utilized motors in its mining equipment which were manufactured and initially serviced by Reliance Electric and Engineering Company of Cleveland, Ohio. Some of these motors used a substance known as polychlorinated biphenyls hereinafter "PCBs" as a coolant.

In December, 1968, the Defendant purchased a building in Bluefield, West Virginia, from Hart Electric in part for the purpose of repairing and rebuilding these motors itself. Part of the repairing and rebuilding process required the Defendant to degrease various parts of the motors. The vapor degreasor it used for this purpose utilized trichloroethylene hereinafter "TCE" as a solvent.

In 1975, the Defendant began construction of a new facility in Bluefield, Virginia. The new plant was completed in 1977 and all operations and activities were transferred there by March, 1978, except for the tear-down and cleaning of fluid filled motors which continued at the West Virginia plant until September, 1980. A new vapor degreasor which used 1,1,1 trichloroethane, rather than TCE, was purchased for use at the Virginia plant. The Defendant had been a subscriber to the West Virginia Workers' Compensation plan and contemporaneously with the move to Virginia became a subscriber to its Workers' Compensation plan. The Bluefield, West Virginia, facility was subsequently sold to Elwin Aliff.

PCBs have been manufactured and used extensively throughout the world since the late 1920's. The use of PCBs as a coolant in underground mining motors offered unique safety advantages because of its high flash point. Its use for this purpose was designated as permissible by the Mine Safety and Health Administration. However, in the late 1960's the scientific and medical communities discovered that PCBs were widely disbursed and persistent in the environment. This discovery led the communities to begin studies to determine whether exposure to PCBs causes any potential adverse human health effects.

In October, 1976, Congress passed the Toxic Substances Control Act hereinafter "TSCA". Implementing regulations concerning PCB marking and disposal were established in February, 1978. A PCB ban rule, with an effective date of July, 1979, was promulgated in May, 1979. In addition to finalizing regulations implementing the provisions of TSCA, it also incorporated, recodified and modified the PCB marking and disposal rules.

In October, 1985, various samples were taken at and around the Bluefield, West Virginia site by Elwin Aliff, the Defendant, and the West Virginia Department of Natural Resources to be tested and analyzed for PCB contamination. The various tests conducted on the samples revealed PCB contamination. On January 23 and 24, 1986, the United States Environmental Protection Agency hereinafter "EPA" conducted an inspection at and around the site. As a result, on February 20, 1986, Region III of the EPA issued a Superfund Cleanup order to the Defendant, Elwin Aliff and Lin-Elco Corporation of which Elwin Aliff was president. Part of the EPA's findings of fact and conclusions of law included the following:

10. PCBs are toxic chemicals which are extremely stable and persistent in the environment. In laboratory animals, PCBs have been demonstrated to cause cancer, suppression of the immune system, liver damage, birth defects, impairment of reproductive capacity, and other illnesses and injuries. In aquatic organisms, PCBs are toxic and can cause death, reduced growth and impairment of reproductive capacity and other biological functions. PCBs are also toxic to humans, and can cause liver damage, adverse dermatological effects and changes in other biological functions. PCBs are regarded by EPA as a probable human carcinogen. Exposure to PCBs results in bioaccumulation, which means that the substance accumulates over time in living tissues in concentrations higher than the concentrations to which the organisms are exposed in the environment.

. . . . .

14. The disposal of PCBs at and around the Route 52 site West Virginia plant, the presence of PCBs off-site and the potential migration of additional PCBs off-site all constitute releases and threatened releases of hazardous substances into the environment.

15. In order to protect the public health, welfare, and the environment, it is necessary that certain actions be taken to abate the release and threatened release of hazardous substances from the Route 52 site.

Exhibit 2 to Plaintiffs' Opposition to Defendant's Motion For Summary Judgment.

In response to the Superfund Cleanup order, the Defendant retained Remcor, Inc. to conduct a remedial clean-up of the site. Prior to this time, in 1984, Elwin Aliff had filed suit against the Defendant in the United States District Court for the Southern District of West Virginia alleging false representation in conveying the building. In September, 1987, Elwin Aliff was awarded a jury verdict against the Defendant.

Plaintiffs allege that "because of the publicity surrounding Mr. Aliff's suit and Remcor's remedial cleanup of Joy's former facility in Bluefield, West Virginia, many employees and former employees of Joy realized for the first time that during their employment with the defendant they had been exposed to highly toxic, carcinogenic chemicals without adequate ventilation, protective equipment, sanitation or safety instruction." Plaintiffs' Opposition To Defendant's Motion For Summary Judgment at 3.

The leading case in this consolidated action, Ball, et al. v. Joy Manufacturing Company, Civil Action No. 1:87-0268, consists of the claims of sixteen (16) Plaintiffs¹ all of whom are present or former employees of the Defendant and was filed on March 17, 1987, in the United States District Court for the Southern District of West Virginia. By Order of this Court entered on August 10, 1989, the Ball case was consolidated with Thompson v. Joy Technologies, Inc.,² Civil Action No. 1:88-0133, and Levitt v. Joy Technologies, Inc.,³ Civil Action No. 1:88-1691. In total, this consolidated action includes twenty (20) Plaintiffs. Eighteen (18) of whom have actually been employees of the Defendant hereinafter "Occupational Plaintiffs", while the other two (2) are spouses of two (2) of the Occupational Plaintiffs hereinafter "Spouse Plaintiffs".

The Occupational Plaintiffs claim that their exposure to these allegedly toxic chemicals while working for the Defendant constitutes a physical injury.⁴ Because of this "injury," the Occupational Plaintiffs claim they now have an increased risk of developing various illnesses, including cancer. While not seeking damages for the alleged increased risk of future disease, in and of itself, they do seek damages for their emotional distress caused by their "injury" and for the costs of medical monitoring during the remainder of their lifetime which they claim is necessitated by such injury. The Occupational Plaintiffs allege that such exposure occurred in both West Virginia and Virginia. The Spouse Plaintiffs both claim damages for loss of consortium, while in addition, Spouse Plaintiff Thompson claims damages for emotional distress and medical monitoring alleging that she was also exposed to these chemicals, i.e., injured, because her husband carried them home on his body, clothing and other personal effects.

The parties agree that it is widely accepted today in the medical and scientific communities that exposure to PCBs can cause a skin disorder known as chloracne. Chloracne, however, is reversible and is not malignant. Plaintiffs in part allege that a genuine question of material fact exists as to whether the chemicals involved in this case cause other adverse human health effects, such as cancer, and that therefore Defendant's motion for summary judgment should be denied on that basis alone. Unsurprisingly, both sides have marshalled an impressive list of expert witnesses to support their various positions. Plaintiffs claim that at trial their experts "... will testify, to a reasonable degree of medical certainty, based on their general knowledge and experience, on animal studies,⁵ clinical work, and human epidemiological studies, that PCBs cause a variety of adverse health effects in human beings, including cancer, ... liver damage and impairment of...