Bobo v. Agco Corp.

• Decision Date: 29 October 2013
• Docket Number: Civil Action No. CV 12–S–1930–NE.
• Parties: Barbara BOBO, Plaintiff, v. AGCO CORPORATION f/k/a Allis Chalmers Company (as successor to Massey Ferguson Limited), et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

981 F.Supp.2d 1130

Barbara BOBO, Plaintiff,

v.AGCO CORPORATION f/k/a Allis Chalmers Company (as successor to Massey Ferguson Limited), et al., Defendants.

Civil Action No. CV 12–S–1930–NE.

United States District Court,

N.D. Alabama,

Northeastern Division.

Oct. 29, 2013.

Charles E. Soechting, Jr., Christopher J. Panatier, Jay Stuemke, Rachel Perkins, Simon Greenstone Panatier Bartlett PC, Dallas, TX, Rebekah Keith McKinney, Watson McKinney LLP, Huntsville, AL, for Plaintiff.

Edward C. Meade, Edwin W. Small, James S. Chase, Tennessee Valley Authority, Knoxville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

CHARLES LYNWOOD SMITH, JR., District Judge.

Barbara Bobo commenced this action against nine defendants.¹ Eight of those were dismissed pursuant to stipulations for dismissal,² leaving only her claims against the Tennessee Valley Authority (“TVA”). TVA filed two motions for summary judgment. The first is based upon the so-called “discretionary function doctrine.” ³ The second motion argues that Mrs. Bobo does not have sufficient evidence to give rise to a genuine issue of material fact: that is, the question of whether her mesothelioma was caused by “exposures to asbestos originating from a TVA-owned facility.” ⁴ Oral argument on those motions and other issues was conducted on May 20, 2013.

Subsequently, on September 17, 2013, while this court was researching the issues addressed in the present opinion, TVA filed notice “of the reported death of Plaintiff Barbara Bobo on September 7, 2013.” ⁵Rule 25 of the Federal Rules of Civil Procedure speaks to such contingencies, and provides that:

If a party dies and the claim is not extinguished,⁶ the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.

Fed.R.Civ.P. 25(a)(1) (footnote and emphasis supplied). Accordingly, this court entered an order directing plaintiff's counsel to substitute the duly-appointed personal representative of the estate of Barbara Bobo, deceased, on or before December 16, 2013, failing which the action would be dismissed. ⁷

This court also entered an order granting plaintiff's motion to reconsider the previous denial of her motion for leave to amend her complaint,⁸ and directed the Clerk to file plaintiff's “First Amended Complaint.” ⁹ The amended complaint expands the amount of time during which plaintiff alleges that she was exposed to airborne asbestos fibers brought into her home on the person and clothing of her deceased husband, a former TVA employee, by a period of some twelve years: that is, from 1975 to 1997, as opposed to the period of 1975 to 1985 alleged in the original complaint. Even so, the basic principles underlying the issues of law that are addressed in this opinion remain the same, regardless of the beginning and ending dates of the injuries alleged. For that reason, and based upon the assumption that plaintiff's counsel will file a timely motion to substitute the real party in interest, this court proceeds to address TVA's first motion for summary judgment.¹⁰ Upon consideration of that motion, the parties' briefs, the evidentiary submissions, and the oral arguments of counsel, the court concludes that TVA's motion is due to be granted, but only in part.

I. STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that a court “shall grant summary judgment 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)). “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Additionally,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (alteration supplied); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

II. SUMMARY OF FACTS

Barbara Bobo never worked for TVA as an employee, a contractor, or subcontractor. Moreover, she was never permitted to enter the Authority's “Browns Ferry Nuclear Plant” located on the North shore of the Tennessee River near Athens, in Limestone County, Alabama.¹¹ Instead, her claims are derivative: that is, they grow out of the exposure of her late husband, James “Neal” Bobo, to asbestos and asbestos-containing products while he worked in that facility.¹²

A. James Bobo's Exposure to Asbestos

James Bobo was employed by TVA as a laborer at its Browns Ferry Nuclear Plant for more than twenty-two years, from April 15, 1975 until September 7, 1997. During all of that time he was exposed to asbestos and products that contained asbestos fibers, such as thermal pipe coverings, insulation, roofing cement, packing materials, and gasket packing materials.¹³ Laborers such as James Bobo worked all over the nuclear facility, primarily performing clean-up duties.¹⁴ Mr. Bobo was often directed to assist those TVA employees who installed insulation materials that were made from (or which contained) asbestos.¹⁵ Occasionally, he would assist the insulators in such work; but, more often than not, Mr. Bobo was directed to clean up after the insulators had completed their duties by sweeping up the insulation that had fallen on the floor.¹⁶ The act of sweeping generated airborne dust containing asbestos fibers.¹⁷ Mr. Bobo also was often present when the insulators mixed asbestos-containing refractory cement.¹⁸

Significantly, Mr. Bobo did not change clothing at the end of each work day. Instead, he drove to his home wearing the same clothes that he had worked in during the day.¹⁹

B. Plaintiff's Exposure to Asbestos

Although plaintiff, like many Americans above the age of fifty, probably was exposed to products containing some amount of asbestos at various times throughout her life, she alleges that she was involuntarily subjected to an excessive quantity of asbestos while laundering her husband's dusty work clothes at least twice each week throughout the years he worked for TVA at Browns Ferry.²⁰ The washroom in plaintiff's home was small. The floor dimensions were only approximately four feet by five feet (20 square feet). ²¹ Plaintiff's practice was to pick-up the dirty clothing that her husband removed at the end of a work day, carry those clothes into the washroom, shut the door, empty the pockets, shake the articles, and then place them into the washing machine.²² Mrs. Bobo recalled inhaling “dust” while thus laundering her husband's clothes.²³ She described the air of the laundry room as “[f]oggy. I just thought it was dust.” ²⁴ She also dry-swept and mopped the washroom floor, and she said that the air also became dusty when she swept it.²⁵

A physician diagnosed plaintiff as suffering from “pleural mesothelioma” in November of 2011.²⁶ “Mesothelioma” is defined as “a tumor derived from mesothelial tissue.... Malignant varieties [ e.g., pleural mesothelioma] are often the result of excessive exposure to asbestos.” Dorland's Illustrated Medical Dictionary 1134 (30th ed. 2003) (alteration supplied). “Pleural mesothelioma” is characterized by the same, generally-accepted treatise as “a malignant mesothelioma of the pleural space, often spreading widely and invading other thoracic structures; ... It is usually fatal within one year.” Id. at 1135.

C. The Tennessee Valley Authority

The Tennessee Valley Authority is a constitutionally authorized corporate agency and instrumentality of the United States. See16 U.S.C. §§ 831–831ee (1933). It provides electricity for more than nine million people in seven southeastern states at prices generally below the national average. Congress placed broad responsibilities on TVA, both for the nation as a whole and for the Tennessee Valley region. See United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546, 553, 66 S.Ct. 715, 90 L.Ed. 843 (1946) (“The broad responsibilities placed on the Authority relate to navigability [of the Tennessee River and its tributaries], flood control, reforestation, [producing fertilizer for] marginal lands, and agricultural and industrial development of the whole Tennessee Valley.”) (alterations supplied); see also United States ex rel. Tennessee Valley Authority v. Three Tracts of Land, 377 F.Supp. 631, 634 (N.D.Ala.1974) (observing that “16 U.S.C. § 831n and § 831n–4, indicate that [TVA has] ... broad responsibilities for the advancement of the national defense and the physical, social and economic development of the...