Ball v. Joy Technologies, Inc., 90-1537

• Decision Date: 12 February 1992
• Docket Number: No. 90-1537,90-1537
• Parties: Rodney D. BALL, Sr.; Harless V. Belcher; Junior F. Billings; Lynn S. Combs; Ronald J. Davis; Theodore H. Harris; Jerry W. Holmes; Eddie D. Kirk; Larry E. Oliver; Gerald H. Proffitt; Donald R. Rolen; Frank E. Roop, Jr.; Jessie F. Stamper; Roger L. Taylor; Horace G. White, Jr.; Johnnie Williams; Robert E. Thompson; Geneva A. Thompson; William R. Levitt; Shirley Levitt, Plaintiffs-Appellants, v. JOY TECHNOLOGIES, INCORPORATED, Formerly Joy Manufacturing Company, a Pennsylvania Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

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958 F.2d 36

Rodney D. BALL, Sr.; Harless V. Belcher; Junior F Billings; Lynn S. Combs; Ronald J. Davis; Theodore H Harris; Jerry W. Holmes; Eddie D. Kirk; Larry E. Oliver Gerald H. Proffitt; Donald R. Rolen; Frank E. Roop, Jr. Jessie F. Stamper; Roger L. Taylor; Horace G. White, Jr.; Johnnie Williams; Robert E. Thompson; Geneva A. Thompson; William R. Levitt; Shirley Levitt, Plaintiffs-Appellants, v. JOY TECHNOLOGIES, INCORPORATED, Formerly Joy Manufacturing Company, a Pennsylvania Corporation, Defendant-Appellee.

No. 90-1537.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1991.

Decided Aug. 5, 1991.

Amended by order filed Feb. 12, 1992.

James Anthony McKowen, Hunt & Wilson, Charleston, W.Va., argued, for plaintiffs-appellants.

Dennis Charles Sauter, Jackson & Kelly, Charleston, W.Va., argued (Robert L. Stewart, Jr., on brief), for defendant-appellee.

Before WILKINSON, Circuit Judge, CHAPMAN, Senior Circuit Judge, and HILTON, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

HILTON, District Judge:

The plaintiffs in this consolidated action are eighteen former employees of the defendant Joy Technologies, Inc. and two spouses of former employees. The plaintiffs allege that while employed at the defendant's corporate facilities in Bluefield, West Virginia, and Bluefield, Virginia, they were wrongfully exposed to and absorbed various toxic chemicals. The district court granted Joy's motion for summary judgment finding that the plaintiffs had not sustained any physical injury from their exposure to toxic chemicals and having suffered no physical injury, the common law of West Virginia and Virginia would not allow them to recover damages for emotional distress or the costs of medical surveillance. The plaintiffs appealed. Finding no error in the granting of summary judgment in favor of Joy Technologies, we affirm.

I.

The defendant Joy Technologies, Inc. (hereinafter "defendant" or "Joy") began to manufacture and sell mining equipment in 1965. The mining equipment manufactured by Joy contained electric motors that used polychlorinated biphenyls (hereinafter "PCBs") as a coolant. In December of 1968, Joy purchased the Hart Electric building in Bluefield, West Virginia. Joy utilized the facility in Bluefield to repair and rebuild the motors used in the mining equipment it manufactured. The defendant used a vapor degreaser on the motors that contained trichloroethylene (hereinafter "TCE").

In 1975, Joy began construction on a new facility in Bluefield, Virginia. Joy transferred its manufacturing and repair operations to the new plant in 1988. Joy utilized a new vapor degreaser that contained 1,1,1 trichloromethane at the Bluefield, Virginia facility. The teardown and cleaning of motors continued at the Bluefield, West Virginia plant until September 1980. Joy's Bluefield, West Virginia facility was subsequently sold to Elwin Aliff.

The Bluefield, West Virginia plant was tested for PCB contamination in October, 1985. In January, 1986, the Environmental Protection Agency (hereinafter "EPA") conducted an inspection of the West Virginia site. On February 20, 1986, the EPA issued a Superfund Cleanup order to Elwin Aliff and Lin-Elco Corporation of which Aliff was president. Aliff retained Remcor, Inc. to conduct a clean-up of the site. The clean-up effort generated publicity revealing that Joy employees had been exposed to toxic chemicals.

On March 17, 1987, sixteen former employees of Joy filed suit in the United States District Court for the Southern District of West Virginia (Ball, et al. v. Joy Manufacturing Company, Civil Action No. 1:87-0268). The Ball case was consolidated by court order on August 10, 1989, with Thompson v. Joy Technologies, Inc., Civil Action No. 1:88-0133, and Levitt v. Joy Technologies, Inc., Civil Action No. 1:88-1691. (The consolidated action included twenty plaintiffs, eighteen of whom were former employees of Joy at either the Bluefield, West Virginia, or Bluefield, Virginia site, while the other two plaintiffs were spouses of former employees.) The plaintiffs alleged that while employed at Joy's corporate facilities in Bluefield, West Virginia, and Bluefield, Virginia, they were wrongfully exposed to and absorbed various toxic chemicals including PCBs, dioxins, furans, TCE, and 1,1,1 trichloromethane. Plaintiffs claimed that their exposure to such toxic chemicals constituted a physical injury and sought to recover damages for their resultant emotional distress and for the costs of medical surveillance allegedly necessitated by their exposure.

On September 18, 1990, the district court granted summary judgment for the defendant Joy Technologies, 755 F.Supp. 1344. The district court found that the plaintiffs claimed their exposure to toxic chemicals was an injury in and of itself and that none of the plaintiffs alleged that they sustained any physical injuries apart from their exposure. The district court concluded that the mere exposure to toxic chemicals did not constitute a physical injury. Having suffered no physical injury, the district court ruled that the common law of West Virginia and Virginia would not allow the plaintiffs to recover damages for emotional distress or the costs of medical surveillance.

II.

The plaintiffs claim that their exposure to toxic chemicals and the increased risk of developing cancer and other diseases resulting from such exposure constituted an injury that would entitle them to recover damages for emotional distress. The plaintiffs contend on appeal that the district court erred in holding that damages for emotional distress could not be recovered.

Courts in West Virginia and Virginia have recognized that damages for emotional distress may be recovered in three specific instances: (1) where the emotional disturbance results from an actual physical injury caused by the impact or occurrence of the tort; (2) where there is no initial impact or injury but physical injury thereafter results as the causal effect of the defendant's wrong; and (3) where there is no impact or physical injury but emotional disturbance results from an intentional or wanton wrongful act caused by the defendant. Monteleone v. Cooperative Transit Co., 128 W.Va. 340, 36 S.E.2d 475, 478 (1945); Hughes v. Moore,...