Bobo v. Tenn. Valley Auth.

• Decision Date: 22 June 2015
• Docket Number: Civil Action No. CV 12-S-1930-NE
• Parties: MELISSA ANN BOBO and SHANNON JEAN COX, as Co-Personal Representatives of the Estate of Barbara Bobo, deceased, Plaintiffs, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Northern District of Alabama

MELISSA ANN BOBO and SHANNON JEAN COX,
as Co-Personal Representatives of the Estate of Barbara Bobo, deceased, Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY, Defendant.

Civil Action No. CV 12-S-1930-NE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

June 22, 2015

MEMORANDUM OPINION

Barbara Bobo, now deceased, commenced this action during her lifetime. The gravamen of her complaint was that she suffered from malignant pleural mesothelioma as a result of being "wrongfully exposed" to asbestos fibers, "an inherently dangerous toxic substance,"¹ that originated in the Browns Ferry Nuclear Plant operated by the Tennessee Valley Authority. Mrs. Bobo, however, never worked for the Tennessee Valley Authority in any capacity. Moreover, she was never inside its Browns Ferry Nuclear Plant. Instead, her claims were derivative: that is, they grew out of her weekly practice of laundering the asbestos-laden work clothes worn by her husband during the twenty-two years that he was employed at the

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Browns Ferry Nuclear facility.²

Mrs. Bobo's original complaint asserted claims against nine defendants, seven of which had allegedly developed, manufactured, marketed, distributed, or sold asbestos-containing products,³ and one (the Metropolitan Life Insurance Company) that had allegedly "conspired with other asbestos suppliers and product manufacturers to mislead the public as to the hazards of asbestos."⁴ All of Mrs. Bobo's claims against those other defendants were dismissed at various stages of the proceedings pursuant to stipulations for dismissal.⁵

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Mrs. Bobo departed this life about fifteen months after filing suit,⁶ but her claims were not extinguished by death and survived in favor of her daughters, who were appointed co-personal representatives of their mother's estate by the Probate Court of Lauderdale County, Alabama.⁷ A timely motion to substitute them as plaintiffs was granted pursuant to Federal Rule of Civil Procedure 25(a)(1).⁸ The case thereafter proceeded to a bench trial on plaintiffs' claim that their deceased mother had contracted malignant plural mesothelioma as a result of negligence on the part of the Tennessee Valley Authority.⁹ Following consideration of the parties' pleadings, pre-trial evidentiary submissions, trial testimony and exhibits, briefs, and

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arguments of counsel, this court observed that the outcome of plaintiffs' claims turns upon, and will be controlled by, two unsettled questions of Alabama tort law.

Certification by a federal court of questions of state law is permitted under Article VI, § 6.02(b)(3) of the 1901 Alabama Constitution, as amended,¹⁰ and Alabama Rule of Appellate Procedure 18, providing, in pertinent part, as follows:

(a) When Certified. When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified question the Supreme Court of this State, by written opinion, may answer.

. . . .

(c) Method of Invoking Rule. The provisions of this rule may be invoked by any of the federal courts upon its own motion or upon the suggestion or motion of any interested party when approved by such federal court.

Ala. R. App. P. 18.

Moreover, the Eleventh Circuit has observed that, whenever there is "substantial doubt about a question of state law upon which a case turns," the issue "should be resolved by certifying the question to the state supreme court. Resolution

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in this way avoids the unnecessary practice of guessing the outcome under state law and offers the state court an opportunity to explicate state law." Jones v. Dillard's, Inc., 331 F.3d 1259, 1268 (11th Cir. 2003) (citations omitted); see also, e.g., Sultenfuss v. Snow, 35 F.3d 1494, 1504 (11th Cir. 1994) (en banc) (Carnes, J., dissenting) ("Only through certification can federal courts [obtain] definitive answers to unsettled state law questions. Only a state supreme court can provide what we can be assured are 'correct' answers to state law questions, because a state's highest court is the one true and final arbiter of state law.") (alteration supplied).

For all of the foregoing reasons, this court concludes that it is advisable to certify to the Alabama Supreme Court the question of the scope of duty owed by premises owners to non-employees for hazards created at the workplace, and the question of the appropriate causation standard when a plaintiff's injury is the result of multiple exposures to a toxic agent, such as asbestos. There are no clear, controlling precedents in the decisions of the Alabama Supreme Court on these issues, and their significance extends beyond the present case.

I. CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA PURSUANT TO ARTICLE VI, § 6.02(b)(3) OF THE ALABAMA CONSTITUTION OF 1901, AND RULE 18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE

TO THE SUPREME COURT OF THE STATE OF ALABAMA AND THE

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HONORABLE JUSTICES THEREOF:

In order to assist the Justices of the Alabama Supreme Court in their consideration of the certified questions, and in accordance with Alabama Rule of Appellate Procedure 18,¹¹ the following post-trial findings of fact are provided.¹²

A. Barbara Bobo

Barbara Wear Bobo was born on March 3, 1942, and lived with her father, Clifton Wear, on the family farm until she married James "Neal" Bobo on September 28, 1964.¹³ The couple purchased a home in Florence, Alabama, in 1965.¹⁴ James Bobo died on September 7, 1997,¹⁵ from lung cancer induced by asbestosis¹⁶ — "a form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos," and "associated with pleural mesothelioma."¹⁷ Mrs. Bobo did not remarry following the

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death of her husband, and continued to live in the same home she had shared with Mr. Bobo until her own death.¹⁸ She was diagnosed with malignant pleural mesothelioma in November of 2011, and died as a result of that disease on September 7, 2013,¹⁹ the sixteenth anniversary of her husband's death. She then was 71 years of age.²⁰

B. TVA

The Tennessee Valley Authority ("TVA" or "the Authority") is a constitutionally authorized instrumentality of the United States created pursuant to the Tennessee Valley Authority Act of 1933, 16 U.S.C. § 831 et seq. ("the TVA Act"), which broadly charges the Authority with the accomplishment of several important missions, including: improving navigability on the Tennessee River and any of its tributaries; flood control; reforestation; improvement of marginal lands; and agricultural and industrial development of the region served by TVA,²¹ an area that was particularly affected by the Great Depression, and which covers most of Tennessee, portions of Alabama, Mississippi, and Kentucky, and small slices of Georgia, North Carolina, and Virginia.

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To assist in the accomplishment of its Congressionally-mandated purposes, the TVA Act specifically authorizes the Authority "to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects at any point along the Tennessee River, or any of its tributaries,"²² and "[t]o produce, distribute, and sell electric power."²³ All real property acquired by TVA for the purpose of accomplishing its statutory purposes is held "in the name of the United States of America," and is "entrusted to [TVA] as the agent of the United States to accomplish the purposes of the [TVA Act]."²⁴

The Browns Ferry Nuclear Plant located on the North shore of the Tennessee River near Athens, in Limestone County, Alabama, is one of the properties owned by the United States and entrusted to TVA for management and operational control.²⁵ The Browns Ferry facility was the Authority's first nuclear power plant, and the largest in the world when it began operation in 1974. It also was the first nuclear plant in the world to generate more than one billion watts of power.²⁶ The plant's

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three operating units are General Electric boiling water reactors. They produce electricity by splitting uranium atoms, and the heat generated by that process boils water, producing steam that is piped to turbines, which spin generators to produce electricity.²⁷

C. James Bobo's Employment History and Exposure to Asbestos

Barbara Bobo's husband, James "Neal" Bobo, was employed as a machine operator at the Alabama Wire Plant in Florence, Alabama for about ten years between 1965 and April 15, 1975, the date on which he was hired by TVA.²⁸ During that period, he was exposed to several products containing asbestos: e.g., Careytemp asbestos-containing pipe covering, insulating cement, and block...