Handley v. Union Carbide Corp., s. 85-2333

Citation804 F.2d 265
Decision Date31 October 1986
Docket NumberNos. 85-2333,s. 85-2333
PartiesSherman L. HANDLEY and Linda L. Handley, his wife, Appellants, v. UNION CARBIDE CORPORATION, a New York corporation, Appellee. Sherman L. HANDLEY and Linda L. Handley, his wife, Appellees, v. UNION CARBIDE CORPORATION, a New York corporation, Appellant. (L), 85-2334.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

M. Elizabeth Medaglia (Jackson & Campbell, P.C., Washington, D.C., Alfred B. McCuskey, II on brief), for appellants/cross appellees.

Robert L. Stewart, Jr. (W.T. Shaffer, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., on brief), for appellee/cross appellant.

Before PHILLIPS, SPROUSE and CHAPMAN, Circuit Judges.

SPROUSE, Circuit Judge:

Sherman L. Handley and his wife Linda appeal from the district court's grant of judgment notwithstanding the verdict to Union Carbide Corporation, the defendant in their diversity action to recover for injuries caused by workplace exposure to toxic chemicals. Handley was employed from April 20, 1981 to August 1, 1984 as a chemical operator at Carbide's plant in South Charleston, West Virginia. In March 1984, he was diagnosed as having schleroderma, a rare, progressive pulmonary disease that severely limits the amount of oxygen processed by the lungs. Handley brought this action against Carbide on July 9, 1984, alleging that his disability was a result of Carbide's deliberate actions in exposing him to dangerous chemicals under unsafe working conditions. 1 At trial, the district court reserved ruling on Carbide's motions for a directed verdict and submitted the case to the jury. 2 After the jury returned a verdict for the plaintiffs, the district court granted Carbide's motion for judgment notwithstanding the verdict. We affirm.

The Handleys' cause of action is statutory. It arises in its entirety under the "deliberate intention" provisions of the West Virginia Workers' Compensation Act. 3 Like other workers' compensation laws, the West Virginia statute grants covered employers a general immunity from common law tort actions brought by injured employees seeking damages for their workplace injuries. Since its inception, however, the West Virginia Act has reserved a right of action in favor of employees who are injured as a result of the employer's deliberate and intentional conduct in causing the injury. The principal question in this appeal is whether Handley has presented sufficient evidence upon which a jury could find that Carbide acted with the requisite "deliberate intention" in causing his injuries so as to lose the immunity that is normally available to it under the Workers' Compensation Act. 4

I.

Handley worked as a chemical operator in Carbide's Specialty Catalyst Unit (Building 156), which produced ethyl silicate and a catalyst known as A99 NYAX. His principal task was to transfer chemicals, either from tankers 5 to storage tanks, or from storage tanks to reactors located inside Building 156. 6 At trial, Handley attempted to prove that Carbide intentionally exposed him to various chemicals under unsafe working conditions. While there is no dispute that most, if not all, of the chemicals that Handley worked with are dangerous to human health, his evidence at trial and his claims on appeal focus on the handling of two specific chemicals--silicon tetrachloride and metaphenylenediamine (MPDA).

Silicon tetrachloride is a liquid chemical used in the production of ethyl silicate. 7 As with all chemicals used by Carbide, the company's engineers accumulated data about the properties of silicon tetrachloride and detailed them in a "Standard Operating Procedure" manual that was then made available to chemical operators. 8 Information relating to potential dangers associated with the chemical was derived from the manual, condensed, and printed on safety data sheets that were also distributed to the chemical operators. The narrative portion of the safety data sheet on silicon tetrachloride provides as follows:

Silicon tetrachloride causes eye and skin irritations and is harmful if inhaled. Avoid contact by use of proper protective equipment. In case of accidental contact, flush affected areas well with water and report to the Medical Department. In case of inhalation, administer oxygen if needed.

Silicon tetrachloride reacts violently with water, causing a rapid release of heat and HCl [hydrogen chloride] vapors.

One of Handley's duties at Carbide was to transfer silicon tetrachloride from tankers that delivered the chemical into storage tanks located outside of Building 156. To unload the chemical, Handley would connect a hose from a valve on the storage tank to a valve on the top of the tanker. After testing the hose and valves for leaks with pressurized nitrogen, the tanker itself would be pressurized, forcing the silicon tetrachloride through the hose into the storage tank. After the transfer was complete, the valves and hose were again purged with nitrogen and the hose would then be disconnected. Handley and several of his co-workers testified that despite the purging process small amounts of silicon tetrachloride nearly always spilled when the hose was disconnected.

When silicon tetrachloride is spilled it reacts with the moisture in the air, producing hydrochloric acid vapors in a visible cloud of white "smoke." 9 According to Handley, Carbide instructed the chemical operators to "knock down" the hydrochloric acid vapors from small spills by spraying large quantities of water on the vapor, sending the acid into the industrial sewer. If the vapors could not be knocked down, the operators would run away from the cloud to avoid breathing its fumes. They would then return wearing an external air source before undertaking further steps to control the spill. The operators did not wear these external air sources as a routine precaution. 10

Handley's work also brought him into close proximity with MPDA, a strong dying agent used by Carbide in the manufacture of a chemical catalyst known as A99 NYAX. At first, Carbide received fifty-pound drums of granular MPDA, which Handley and his co-workers emptied directly into the reactor that produced A99 NYAX. The original safety data sheet that Carbide distributed on MPDA contained the following pertinent information:

Use proper protective equipment to avoid contact. Thermal burns may result from contact with molten material. In case of accidental contact, wash affected areas well with water and contact the Medical Department. Use respiratory protection if necessary to avoid breathing dust.

If the material is exposed to fire or intense heat, toxic vapors may be evolved.

When the first MPDA shipment arrived the operators wore hard hats, goggles, and dust masks during the unloading process. Despite these precautions, several of the workers subsequently experienced discoloration of their skin, hair, and urine. Thereafter, the operators wore oxygen masks, vinyl coveralls, boots, and two pairs of gloves while emptying the drums. 11 After an incident in which some MPDA dust escaped from Carbide's property and damaged the paint on cars parked nearby, Carbide arranged with its supplier to receive MPDA in molten form. It later revised its safety data sheet to include information about the chemical's staining capacity and to address the properties of the chemical in liquid form. 12

Molten MPDA was unloaded in a process similar to that used for silicon tetrachloride, but the process was complicated by the fact that the chemical had to be maintained at a temperature above 140?F. Therefore, the transferring hoses and valves were heated externally with steam to keep the chemical in a liquid state. Nevertheless, the MPDA "froze" on several occasions. Normally, the application of additional external heat was sufficient to start the chemical flowing again. 13 Handley testified that he applied steam to the frozen hose on four or five occasions, and that he was exposed to the chemical in molten form. 14

Handley's respiratory problems began in January 1984. 15 Carbide's company doctor initially treated him for pneumonia and, when Handley did not improve, referred him to Presbyterian University Hospital in Pittsburgh. At trial, Handley presented expert medical testimony that attributed his respiratory disease to the inhalation of silicon dioxide particulates and amine vapors 16 at Carbide's South Charleston plant.

II.

As noted earlier, the West Virginia Workers' Compensation Act contains an exception to the covered employer's immunity from suit for workplace injuries inflicted on employees with "deliberate intention." 17 In 1978, the West Virginia Supreme Court of Appeals issued a far-reaching decision in Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907 (1978). It ruled that deliberate intention "must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or willful, wanton, and reckless misconduct." Id. at 706, 246 S.E.2d at 914 (footnotes and citations omitted). This holding stimulated much public debate and, in 1983, the West Virginia Legislature amended the compensation statute with the express intent of modifying the standard adopted in Mandolidis. The statute now states that "in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct." 18 The parties agree that this action is governed by the amended statute. 19

Under the new provisions, there are two alternative methods of proving deliberate intent. W.Va.Code Sec. 23-4-2(c)(2) (1985 Replacement Vol.). First, the statute provides that an employer may be held liable if it acts "with a consciously, subjectively and deliberately formed intention to...

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