Goewey v. US

• Citation: 886 F. Supp. 1268
• Decision Date: 11 May 1995
• Docket Number: Civ. A. No. 2:92-2543-22.
• Court: U.S. District Court — District of South Carolina
• Parties: Stephen L. GOEWEY, a Minor, By His Next Friend, Julie A. Goewey, and Kevin D. Goewey and Julie A. Goewey, Both as Individuals and as Parents of Stephen L. Goewey, Plaintiffs, v. UNITED STATES of America, Fluor Daniel Corporation, FD Services, Incorporated, Defendants.

886 F. Supp. 1268

Stephen L. GOEWEY, a Minor, By His Next Friend, Julie A. Goewey, and Kevin D. Goewey and Julie A. Goewey, Both as Individuals and as Parents of Stephen L. Goewey, Plaintiffs, v. UNITED STATES of America, Fluor Daniel Corporation, FD Services, Incorporated, Defendants.

Civ. A. No. 2:92-2543-22.

United States District Court, D. South Carolina, Charleston Division.

May 11, 1995.

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Wheeler M. Tillman, North Charleston, SC, Michael D. Block, Block, Krockey, Cernugel & Cowgill, P.C., Joliet, IL, for plaintiffs.

John H. Douglas, Asst. U.S. Atty., Charleston, SC, William E. Michael, Judith N. Macaluson, Bridget S. Bade, James C. Brennan, Torts Branch, Civ. Dept., U.S. Dept. of Justice, Washington, DC, for defendant U.S.

Andrew S. Halio, Halio & Halio, Charleston, SC, for defendants Fluor Daniel and FD Services.

ORDER

CURRIE, District Judge.

This is an alleged toxic tort case resulting from an infant's accidental exposure to a roofing sealant substance.¹ Plaintiffs assert several claims against the United States of America (hereinafter "the USA") under the Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. § 2671 et seq. Jurisdiction for the FTCA claims is based on 28 U.S.C. § 1346(b). Plaintiffs also assert several claims against Fluor Daniel Corporation, and its associated company, FD Services, Incorporated, (collectively "FD"). Jurisdiction as to those claims is based on diversity of citizenship, 28 U.S.C. § 1332, as well as ancillary jurisdiction to the FTCA claims.

The matter came before the court for hearing on January 26, 1995, at which all counsel appeared. Nine separate motions were pending, of which three were dispositive motions.² The dispositive motions include:

1. The USA's Motion to Dismiss Plaintiffs' Complaint for Lack of Subject Matter Jurisdiction, filed December 7, 1994 2. FD's Motion for Summary Judgment on the Issue of Medical Causation, filed December 7, 1994;

3. The USA's Motion for Summary Judgment, filed December 7, 1994.

The court has reviewed the voluminous filings,³ heard argument of counsel, and studied the applicable law. For the reasons given below, the court orders that the USA's Motion to Dismiss is GRANTED, FD's Motion for Summary Judgment is GRANTED; the USA's Motion for Summary Judgment is MOOT, because of the court's dismissal of the claims against the USA on subject matter jurisdiction grounds.⁴ The remaining, non-dispositive motion, FD's Motion to Compel, filed January 9, 1995, and taken under advisement at the hearing, is MOOT.

BACKGROUND

The following facts are drawn from the complete record before the court, including the pleadings, affidavits, depositions, and other materials. Where applicable, all inferences are drawn in Plaintiff's favor.

In 1989, one-year old Stephen Goewey, his parents Julie and Kevin Goewey, and his siblings, resided in U.S. Navy housing located at 73 Lafayette Street, Men Riv Housing Project, Charleston Naval Weapons Station, Goose Creek, South Carolina. In August 1989, Julie Goewey made a routine service call to the Navy's Housing Department requesting that someone fix an apparent water leak in a bedroom. The Housing Department issued a work order to FD Services to "Waterproof above and below ground foundation leak." On two occasions workers for FD Services, a contractor retained by the Navy to perform housing maintenance for the Navy's military housing at that location, responded to the call. The workers applied Lowe's fibered roof coating to the exterior. The workers' customary practice in such cases was to dig a trench down to the foundation and apply roof sealant to the foundation to prevent further water intrusion. They applied sealant to the outer brick wall to a depth of approximately three feet below the ground surface, and several inches above the ground surface. The work was completed by September 5, 1989, and Mrs. Goewey signed off on the worksheet noting the project's completion. Mrs. Goewey knew that some "black stuff", Defs' Exh. 22 at 122, had been applied along the back foundation.

On September 12, 1989, Stephen, his brothers and two other children, were playing in the backyard while Mrs. Goewey was inside the house. Stephen got into a puddle of the sealant, which had exuded from beneath dirt that FD workers had scattered on the ground surface over the sealant. Mrs. Goewey found Stephen sitting on the ground covered in sealant. Although approximately 80-85% of his body was covered in sealant, none was in his mouth, eyes, or ears, and he appeared in no apparent distress. After unsuccessful attempts to remove the sealant with soap and water, Mrs. Goewey had Stephen taken immediately to the Navy Hospital, where the sealant was removed with mineral oil. His skin appeared normal after the tar was removed. For the next few months Stephen appeared perfectly normal and did not require medical treatment other than for a respiratory infection. On January 19, 1990, Mrs. Goewey reported to the Navy Hospital that Stephen appeared to be falling frequently. Plaintiffs contend that Stephen's brief encounter with the roof sealant produced neurotoxic effects of catastrophic proportions, which manifested months after the September 12 event.

Although Plaintiffs have advanced numerous theories of toxic exposure, many of which had been abandoned by the time of the January 26, 1995, hearing,⁵ Plaintiff's current primary theory of liability is that Stephen was exposed to tri-ortho-cresyl phosphate ("TOCP") through the roof sealant, which caused him progressive neurological impairment. To explain why Stephen did not manifest symptoms of the toxic exposure earlier, Plaintiffs assert that the TOCP compound produced a delayed toxic reaction described as an organo-phosphate induced delayed neuropathy ("OPIDN").

I. The USA's RULE 12(B)(1) MOTION TO DISMISS

A. STANDARD OF REVIEW

Plaintiffs bear the burden or persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1). Williams v. United States of America, 50 F.3d 299 (4th Cir.1995), Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991) ("the party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity"). In ruling on a Rule 12(b)(1) motion, the court may consider exhibits outside the pleadings. Williams, 50 F.3d 299. Indeed, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. The court's consideration of materials outside the pleadings, such as affidavits, depositions, or live testimony, does not convert the Rule 12(b)(1) motion into a motion for summary judgment. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

B. DISCUSSION

The parties submitted a voluminous record on the Navy's contract with FD, FD's responsibilities, the Navy's inspection of FD's work, and the repair work executed at Plaintiffs' residence. After examining the record, the court finds the following facts material to the ruling on the USA's Motion to Dismiss.

Federal acquisition regulations permit the Navy to delegate responsibility for family housing maintenance to contractors. Defs' Exh. 3 at 93. Pursuant to industrial study findings showing that the Navy could most economically accomplish this function through delegating family housing maintenance responsibility to a contractor, the Navy delegated responsibility to a contractor such as FD. Id.

The maintenance contract at issue here, N62467-86-D-0402, was awarded to FD on September 17, 1986, and was effective from October 1, 1986. The Navy awarded this contract under a so-called "source selection procedure," which is calculated to lower costs, ensure higher quality, and avoid contract administration difficulties. Decl. of Anonie, Defs' Exh. 5 at ¶ 6. Under source selection procedure the Navy may conduct random inspections of the contractors' work, and deduct payments based on the percentage of unsatisfactory work encountered.

Men Riv residents placed work orders by calling the Navy Housing Office. The Housing Office generated a work order ticket. The work ticket contained a description of the complaint. Although the function of the work ticket was not to direct the manner in which FD performed the work, on occasion the ticket might contain a description of the recommended procedure, particularly where, as here, FD had already responded to previous water intrusion complaints by digging a trench and applying roof sealant. FD had ultimate authority to decide what work would be done, and to supervise the necessary work. Defs' Exh. 3 at 74; Defs' Exh. 5 at 8; Defs' Exh. 12 at 21. Importantly, FD employees were instructed not to take instructions from Navy inspectors or Housing Office personnel. Defs' Exh. 18 at 39.

FD Services was required under the contract to "furnish all personnel, supervision, management, equipment, materials, parts, tools, transportation and supplies ..." for the work. Defs' Exh. 6 at §§ C.2 & H.13. FD hired its own workers, who received all employment benefits, compensation, and other benefits from FD. Defs' Exh. 18 at 38; Defs' Exh. 19 at 40.

Several contractual provisions established that FD was responsible for managing the total work product, see Defs' Exh. 6, §§ C.2 ("administration, operation, equipment installation, maintenance, repair, alteration and work in the primary functional areas"), C.10 ("the Contractor is responsible for managing the total work effort associated with the maintenance and other services"), C.11 ("Contractor is responsible for implementing all necessary work control procedures to ensure timely accomplishment of work requirements, as well as to permit tracking of work in progress."), H.9 ("Contractor is responsible for planning and scheduling work to assure material and labor is available to complete work...