Bobo v. Tenn. Valley Auth., Civil Action No. CV 12-S-1930-NE

• Decision Date: 29 September 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

138 F.Supp.3d 1285

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, N.D. Alabama, Northeastern Division.

Signed September 29, 2015

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 Defendants.

MEMORANDUM OPINION

C. Lynwood Smith, Jr., United States District Judge

Barbara Bobo, now deceased, commenced this action during her lifetime. The gravamen of her complaint was that she suffered from malignant pleural mesotheliomaas a result of being "wrongfully exposed" to airborne asbestos fibers, "an inherently dangerous toxic substance."¹ She alleged that the fibers came from the Browns Ferry Nuclear Plant operated by the Tennessee Valley Authority ("TVA") on the north shore of the Tennessee River near Athens, in Limestone County, Alabama. Mrs. Bobo, however, had never been inside the Browns Ferry Nuclear Plant. In fact, she had never worked for TVA in any capacity. Instead, her claims were derivative: they grew out of her practice of laundering the asbestos-laden work clothes worn by her husband, James Bobo, every week during the twenty-two years that he was employed by TVA as a laborer at its Browns Ferry Nuclear Plant.² Such allegations are typical of so-called "secondary exposure," or "take-home exposure" claims, as distinguished from "direct exposure" claims.³

I. JURISDICTION

Mrs. Bobo's original complaint asserted claims against TVA and eight other defendants, seven of which had developed, manufactured, marketed, distributed, or sold asbestos-containing products,⁴ and one, the Metropolitan Life Insurance Company, that allegedly had "conspired with other asbestos suppliers and product manufacturers to mislead the public as to the hazards of asbestos."⁵ Mrs. Bobo was a resident of the State of Alabama on the date this action was commenced, and the defendants other than TVA were corporate citizens of states other than Alabama. Apparently for that reason, Mrs. Bobo's attorneys premised jurisdiction on the diversity statute, 28 U.S.C. § 1332.⁶ Mrs. Bobo's claims against the eight, non-TVA defendants were dismissed at various stages of these proceedings pursuant to stipulations for dismissal,⁷ thus leaving TVA as the only defendant. TVA's status as a wholly-owned corporate agency and instrumentality of the United States created pursuant to an act of Congress⁸ places subject matter jurisdiction under the federal question statute, 28 U.S.C. § 1331, as opposed to the diversity statute. See, e.g., Union Pacific Railroad Co. v. Myers , 115 U.S. 1, 11, 5 S.Ct. 1113, 29 L.Ed. 319 (1885)(the so-called "Pacific Railroad Removal Case," holding that a suit by or against a corporation of the United States is a ground for federal question jurisdiction); Government National Mortgage Association v. Terry , 608 F.2d 614, 620–21 & n.10 (5th Cir.1979)(same);⁹ Jackson v. Tennessee Valley Authority , 462 F.Supp. 45, 50–51 (M.D.Tenn.1979)("The courts have consistently relied upon the Pacific Railroad decision in finding jurisdiction over tort actions against TVA under sections 1331and 1337") (citations omitted); Monsanto Co. v. Tennessee Valley Authority , 448 F.Supp. 648, 651 (N.D.Ala.1978)(observing that "the precedents going back over a hundred and fifty years establish that any claim, even one created by state law ,^{[10 ]} against a federally created corporation arises under federal law") (emphasis and footnote supplied, citations omitted).

II. PROCEDURAL HISTORY

Mrs. Bobo died about fifteen months after filing suit,¹¹ 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.¹² A timely motion to substitute Melissa Ann Bobo and Shannon Jean Cox as plaintiffs was granted pursuant to Federal Rule of Civil Procedure 25(a)(1).¹³

Following denial of TVA's motions for summary judgment,¹⁴ the case proceeded to a bench trial¹⁵ on plaintiffs' claims that their mother had contracted malignant plural mesotheliomaas a result of TVA's negligence that allowed her to be exposed to a large quantity of asbestos fibers while laundering the work clothing of her husband each week throughout the years he worked at TVA's Browns Ferry Nuclear Plant.¹⁶ Upon consideration of the parties' pleadings, pre-trial evidentiary submissions, trial testimony and exhibits, briefs, arguments of counsel, and independent research, the court makes the following findings of fact and enters conclusions of law.

III. FINDINGS OF FACT

Plaintiffs' decedent, Barbara Wear Bobo, was born on March 3, 1942, and lived with her father, Clifton Wear, on the family farm until she married James Bobo on September 28, 1964.¹⁷ They purchased a home in Florence, Alabama the following year,¹⁸ and lived together as husband and wife until Mr. Bobo died on September 7, 1997,¹⁹ from lung cancerinduced by asbestosis:²⁰ "a form of pneumoconiosis(silicatosis) caused by inhaling fibers of asbestos" and "associated with pleural mesothelioma."²¹

Mrs. Bobo did not remarry and continued to reside in the marital home until her own death.²² She was diagnosed with malignant pleural mesotheliomain November of 2011, and died as a result of that disease nearly two years later, on September 7, 2013.²³ She was seventy-one years of age.²⁴

Defendant, 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 the navigability of the Tennessee River and its tributaries; flood control; improvement of marginal lands; reclamation of lands ravaged by erosion; reforestation; and agricultural and industrial development of the region served by TVA—an area of the nation 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.²⁵ 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,"²⁶ and "[t]o produce, distribute, and sell electric power."²⁷ All real property acquired by TVA is held "in the name of the United States of America," and is "entrusted to the [Authority] as the agent of the United States to accomplish the purposes of the [TVA Act]."²⁸

The land upon which the Browns Ferry Nuclear Plant was constructed is among the real estate owned by the United States and entrusted to TVA for management and operational control.²⁹ The Browns Ferry facility was the Authority's first nuclear power plant and, when it began operation in 1974, the largest in the world. It also was the first nuclear plant to generate more than one billion watts of electric power.³⁰ The plant's 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, thereby producing steam that is piped to turbines, which in turn spin generators to produce electricity.³¹

A. Asbestos

The Toxic Substances Control Act of 1976, 15 U.S.C. § 2641 et seq .,defines asbestos as the asbestiform varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite, or actinolite. 15 U.S.C. § 2642(3)(A)–(F). "Asbestiform" is a mineralogical term meaning that the fibers are long, thin, and possess high tensile strength.³² Asbestos fibers are flexible, and can be woven together. They also are resistant to heat and most chemicals. "Because of these properties, asbestos fibers have been used in a wide range of manufactured goods, including roofing shingles, ceiling and floor tiles, paper and cement products, textiles, coatings, and friction products such as automobile clutch, brake and transmission parts."³³ The use most relevant to the issues of this case was the installation or replacement of insulation materials wrapping the boilers, pipes, and other equipment involved in the transfer of high-temperature steam to the turbines driving TVA's electrical generating equipment.

B. James Bobo's Pre-TVA Employment and Exposure to Asbestos

Barbara Bobo's husband James was employed as a machine operator at the "Alabama Wire" plant in Florence, Alabama for about ten years, from 1965 until April 15, 1975, when he was hired by TVA.³⁴ During that period, he was exposed to airborne asbestos fibers that emanated from such products as: Careytemp pipe covering, insulating cement, and block insulation;³⁵ GAF Building Materials Corporation pipe covering, insulating cement, and block insulation;³⁶ H.K. Porter cloth;³⁷ Kaiser Aluminum & Chemical Corporation block insulation;³⁸ Keene Corporation pipe covering, insulating cement, and block insulation;³⁹ and Raymark gaskets.⁴⁰

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

James Bobo was employed by TVA as either a temporary or annual employee for more than twenty-two years, from April 15, 1975 until September 7, 1997:⁴¹ the day on which he died from lung cancerinduced by asbestosis.⁴² He worked primarily in the Browns Ferry Nuclear Plant.⁴³ Numerous products and materials containing asbestos fibers were present in that facility:⁴...