Handley v. Union Carbide Corp.

• Decision Date: 17 October 1985
• Docket Number: Civ. A. No. 84-2270.
• Citation: 620 F. Supp. 428
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Sherman L. HANDLEY and Linda L. Handley, Plaintiffs, v. UNION CARBIDE CORPORATION, Defendant.

620 F. Supp. 428

Sherman L. HANDLEY and Linda L. Handley, Plaintiffs, v. UNION CARBIDE CORPORATION, Defendant.

Civ. A. No. 84-2270.

United States District Court, S.D. West Virginia, Charleston Division.

October 17, 1985.

Alfred B. McCuskey, II, St. Albans, W.Va., for plaintiffs.

W.T. Shaffer, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

This is a Mandolidis -type¹ action brought under the workers' compensation laws of the State of West Virginia. W.Va. Code, § 23-4-2.² That section of the Code was extensively amended in 1983. This action arises under the amended version.

The trial was bifurcated pursuant to the holding of Mooney v. Eastern Associated Coal Corp., 326 S.E.2d 427 (W.Va.1984).³ Trial on the issue of liability was held the week of August 5, 1985. At the conclusion of the Plaintiffs' case and again at the close of all the evidence, the Defendant moved for a directed verdict. The Court reserved ruling on the motion pending submission of the case to the jury. The jury returned a verdict in favor of the Plaintiffs. The Defendant now brings before the Court a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Inasmuch as the Court's ruling on the motion for judgment n.o.v. is dispositive of the case, the Court will not address the Defendant's companion motion for a new trial.

I. Background

The Plaintiff, Sherman Handley,⁴ worked at Union Carbide from April 20, 1981, to August 1, 1984. He worked in the Specialty Catalyst Unit (Building 156) as a chemical operator at Carbide's plant in South Charleston, West Virginia.

As a chemical operator at Carbide, Handley's duties included transferring chemicals in and about Building 156. Frequently, railroad tanker cars or tanker trucks (tankers) would bring chemicals into the plant. Handley and others would then transfer the chemicals from the tankers to storage tanks near Building 156. The transfer was accomplished by the use of hoses, siphons, drums and piston pumps. The Carbide employees would connect hoses to the tankers and pump the chemicals to the storage tanks. They would also move the chemicals to tanks where "blends" were made of chemicals. This blending involved mixing several chemicals together pursuant to a "recipe."

On or about January 18, 1984, Handley began to experience problems in breathing. R.Vol. 1, 47. He also became exhausted after climbing stairs. R.Vol. 1, 54. He was first diagnosed as having pneumonia. R.Vol. 1, 50. After treatment for pneumonia and bed rest produced no relief from his symptoms, he was admitted to an area hospital. There, diagnosis was made of schleroderma.⁵ Schleroderma is a rare lung disease which, because of scar tissue on the lungs, diminishes the amount of oxygen which is processed by the lungs. R.Vol. 1, 56. As a result, Handley must at all times be tethered to an external supply of oxygen. R.Vol. 4, 52

Handley brought suit against Carbide on July 9, 1984, claiming that the company had acted with deliberate intent, as defined in W.Va.Code, § 23-4-2, in causing the disease which he now suffers.

II. Standard of Review

Before turning to the merits of this case, a few comments must be made as to this Court's role and standard of review in regard to a motion for judgment notwithstanding the verdict. A judgment n.o.v. is, in essence, a delayed directed verdict.⁶ The standard in passing on a motion for judgment n.o.v. is the same as a motion for directed verdict.⁷ Indeed, a motion for judgment n.o.v. cannot be granted if one for a directed verdict could not have been granted. A court's motivation for delaying a ruling on the directed verdict motion can be placed under the heading of judicial economy. Although it will appear proper in many cases to direct a verdict, in a close case, if that ruling is reversed on appeal, the entire case must be retried. On the other hand, if the case is submitted to the jury and its verdict nullified by the Court, a reversal on appeal will only necessitate a reinstatement of the original jury verdict.⁸

Motions for judgment n.o.v. should be sparingly granted.⁹ In reviewing the motion, a court should not retry the case or replace the jury's decision with its own. Neither should the Court determine the credibility of witnesses nor weigh the evidence generally.¹⁰ Rather, the Court should only determine whether there was sufficient evidence for the matter to have gone to the jury in the first instance.

The Defendant, Union Carbide, urges this Court to adopt a heightened standard in determining whether a jury verdict is supported by "sufficient evidence." As support for a higher standard, Carbide cites the language of W.Va.Code, § 23-4-2(c)(2)(iii)(B), which language reveals a legislative preference for summary judgments and directed verdicts in this type of action:

"Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the Court shall dismiss the action upon motion for summary judgment if it shall find, pursuant to Rule 56 of the Rules of Civil Procedure that one or more of the facts required to be proven by this statute do not exist, and the Court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the Court shall determine that there is not sufficient evidence to find each and every one of the facts required to be proven by this statute."¹¹

From this language, Carbide would have the Court adopt a standard which would require a lesser showing to successfully move for a judgment n.o.v. There are two problems with the Defendant's argument.

First, in urging "higher" or "lesser" burdens on the respective parties, Carbide would have the Court believe that existing procedural standards on judgment n.o.v. motions¹² are somehow changed by the statute's wording. The Court concludes otherwise. The statute speaks of "sufficient evidence," but it does not propose a formula for determining what is sufficient. Nevertheless, the Court opines that the Plaintiff's burden has increased because of the amended statute, but it is a burden imposed substantively rather than procedurally. A plaintiff suing under the "deliberate intent" exception to West Virginia's worker's compensation laws may¹³ have to prove five independent facts¹⁴ to recover. The "sufficiency test" cannot be said to have changed; rather, it is the nature of the evidence to which the test will be applied which has changed. In other words, because a defendant may have to prove five independent and narrowly drawn elements, directed verdicts and judgments n.o.v. may be appropriate more frequently.

Second, in any event, both the Defendant and the Plaintiff ignore the principle that, in a diversity action such as this, federal law sets the standard for the sufficiency of the evidence.¹⁵ In federal courts it has been said time and again that more than a mere scintilla of evidence is required to send an issue to the jury.¹⁶ The test has been phrased as one of whether there is "substantial evidence supporting the verdict." Millers Mutual Ins. Association of Illinois v. Southern Railway Corp., 483 F.2d 1044, 1046 (4th Cir.1973) (quoting C. Wright, Law of Federal Courts, § 95, at 425 (2d Ed.1970)). Substantial evidence in turn has been defined as "evidence of such quality and weight that reasonable and fair-minded people in the exercise of impartial judgment could reasonably return a verdict for the nonmoving party...." Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888, 891 (4th Cir.1980). This would appear to be the test in federal court.

The Court notes that the principle that federal law controls on this procedural point may not compel a decision divergent from what state law would produce. Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). Although the authority is not as abundant as the federal, the West Virginia test would also appear to rest on a "reasonable person" standard. Morgan v. Bottome, 289 S.E.2d 469 (W.Va.1982). Rounding out the state court's role is the directive found in W.Va. Code, § 23-4-2(c)(2)(iii)(B) for the Court to consider "all the evidence" and "every inference legitimately and reasonably raised thereby most favorably to the plaintiff." Again, these two directives would not mark the state process as different than that to be employed by a federal court. Under federal procedural law, a federal court will also consider all the evidence¹⁷ and give the nonmoving party the benefit of all legitimate inferences.¹⁸

III. The Statute

The West Virginia Worker's Compensation Act is similar to that of many states. It was enacted as a response to the many perceived inequities suffered by workers under the common law tort system. Under the worker's compensation system, fault has been removed as a material element. Whether an employer or an employee is negligent is immaterial; an employee receives compensation in either event. The bargain for both sides of the economic picture is appealing: the employee recovers even when he is at fault and the employer is given immunity from a common-law tort action.

From its inception, the Worker's Compensation Act contained an exception to the employer's litigation immunity: if the employer acted with the "deliberate intention" to injure an employee, that employee could bring suit "as if this chapter had not been enacted." W.Va.Code, § 23-4-2(b). In 1978, in the now famous Mandolidis decision, the West Virginia Supreme Court of Appeals defined "deliberate intention" within the meaning of the Worker's Compensation Act as including willful, wanton and reckless misconduct.¹⁹ Mandolidis v. Elkins Industries,...