Maddy v. Vulcan Materials Co.

Decision Date25 May 1990
Docket NumberNo. 86-1636-K.,86-1636-K.
Citation737 F. Supp. 1528
PartiesLauri E. MADDY and Michael E. Maddy, Plaintiffs, v. VULCAN MATERIALS COMPANY, Defendant.
CourtU.S. District Court — District of Kansas

Craig Shultz, of Shultz & Webb, Wichita, Kan., for plaintiffs.

David B. Bartel, Frank J. Daily, James Lucke, Ralph A. Weber, Michael L. Zaleski, of Quarles & Brady, Milwaukee, Wis., Alexander B. Mitchell, Wichita, Kan., for defendant.


PATRICK F. KELLY, District Judge.

Originally, the court was presented with motions for summary judgment on a wide variety of issues, filed on behalf of the 31 plaintiffs and defendant Vulcan Materials Company. Since that time, the "Fahnholz plaintiffs," a group representing all but two of the plaintiffs, have reached a settlement agreement with the defendant and have dismissed with prejudice their claims against Vulcan. The remaining plaintiffs, Lauri and Michael Maddy, assert claims against Vulcan alleging trespass, nuisance, and absolute liability.

A number of the summary judgment motions are relevant only to the claims of the Fahnholz plaintiffs, and are therefore moot as a consequence of the dismissal of those claims. These motions include Vulcan's separate summary judgment motions on: (1) the groundwater contamination claims asserted by eight of the Fahnholz plaintiffs, (2) the past and present illness claims of the Fahnholz plaintiffs, and (3) the claims of the Fahnholz plaintiffs for future medical monitoring and surveillance.

There remain for resolution by the court three summary judgment motions of Vulcan, and one summary judgment motion filed by the Maddys. Arguments relating to these motions were presented to the court at a hearing held May 18, 1990. Consistent with the statements of the court at that time, and for the reasons discussed herein, the motions for summary judgment of defendant Vulcan are hereby granted. The summary judgment motion of the Maddys relating to comparative fault is granted as to the claim for nuisance, but denied in all other respects.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R. Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Personal Injury

Plaintiff Michael Maddy makes no claim for personal injury. Lauri Maddy, however, contends that exposure to chemicals emitted by Vulcan caused her to suffer, or exacerbated existing, respiratory ailments. Reviewing all the evidence in the light most favorable to plaintiff Lauri Maddy, there is insufficient evidence to support her claim for personal injury, and Vulcan's summary judgment motion on that issue should be granted.

Lauri Maddy has identified only one medical expert in support of her personal injury claim, Dr. Stephen M. Polland. Dr. Polland is an osteopath specializing in pulmonary medicine. He initially treated Maddy for a respiratory ailment in November, 1984, and remains her primary treating physician.

In his deposition, Dr. Polland repeatedly denied any particular expertise in determining whether exposure to chemicals caused or contributed to Maddy's respiratory problems. When asked if he could testify that chemicals caused or exacerbated Maddy's injuries, Dr. Polland responded, "I am not here to speak as an expert on toxic fumes, gases or similar substances as a cause of lung disease, no. I am not an expert in that area." (Polland Depo., pp. 23-24.) Later in the deposition, Dr. Polland again disavowed any status as an expert on the subject, and stated that he did "not have the background to made a determination as to what the etiology of her underlying lung disease was." (Polland Depo., p. 49.)

Dr. Polland also repeatedly denied holding any opinion, within a reasonable degree of medical probability, as to whether exposure to chemicals caused or contributed to Maddy's respiratory problems. Dr. Polland stated that he did not know the cause of Maddy's underlying respiratory condition. On several instances during the deposition, Dr. Polland stated that he was not able to testify, to a reasonable degree of medical certainty, that exposure to chemicals in the environment aggravated Maddy's underlying condition.

Q. And it's still your position that you can't say what really caused her exacerbation?
A. I can't, from what we have talked about to this point, tell you that the chemicals caused her condition, no.
Q. Okay. And you also can't say that the chemicals, in fact, did cause her exacerbation?
A. Well, I'm concerned that they may have.
Q. But you can't, Doctor, can you, to a reasonable degree of medical and scientific certainty, say, you know, yes, that chemicals did, in fact, cause her exacerbation? As we said earlier, you just don't have enough information to say that?
A. At this point I don't have enough information, that's correct.

(Polland Depo., pp. 99-100.)

Dr. Polland also testified that Maddy's smoking, her proximity to farm animals, or her living in an old farm house with a cistern and an old heating system could have caused an aggravation of her respiratory problems. "I think another way to say that," Dr. Polland testified, "would be to say I don't know what caused her underlying lung condition. But that her condition appeared to be aggravated by living on the farm." (Polland Depo., p. 79.)

Lauri Maddy has also consulted Dr. Howard D. Waite, seeking his opinion as to whether chemicals emitted by Vulcan contributed to her respiratory problems. Dr. Waite is a board-certified pulmonary disease specialist, and practices at the National Jewish Hospital in Denver, Colorado. When she saw Dr. Waite, Maddy gave him a list of chemicals she believes are being emitted by Vulcan, and lists of chemicals allegedly produced by other manufacturers.

Dr. Waite testified that he found no relationship between the chemicals allegedly emitted and Maddy's respiratory condition. Dr. Waite testified that in his opinion the alleged chemical exposure neither caused nor exacerbated Maddy's respiratory condition. Dr. Waite was unable to identify any possible mechanism from which he could relate chemical exposure to her illness. He also testified that before a chemical could exacerbate Maddy's condition, it would have to be a respiratory irritant and that none of the volatile organic compounds allegedly emitted from Vulcan were respiratory irritants. According to Dr. Waite, it is more likely than not that Maddy's respiratory condition was caused by a virus.

In response to Vulcan's motion for summary judgment, Maddy initially moved to strike the motion, contending that the motion was untimely. Maddy argued that the deposition of Dr. Polland had not been completed, and she therefore had "absolutely no opportunity to question or examine" Polland as to causation. (Motion to Strike, at 1.) The motion to strike is utterly without merit. Dr. Polland is Maddy's witness. There is no indication that Maddy was prevented from contacting Polland and obtaining his opinion. And, indeed, Maddy relies on an affidavit of Dr. Polland in her response to Vulcan's motion for summary judgment. The motion to strike is therefore denied.

Following her motion to strike, Maddy responded to Vulcan's summary judgment motion. This response admits all but one of the contentions of fact raised by Vulcan, denying that Dr. Polland was unable to conclude that chemical exposure caused or contributed to Maddy's illness. This denial is based upon the affidavit of Dr. Polland. No other evidence is offered in support of the response. Dr. Polland's one-page affidavit offers the following conclusion:

Based upon the history and description of onset of Lauri's respiratory problems and exacerbation of such problems, it is my opinion to a reasonable degree of medical probability, that her condition has been exacerbated by exposure to chemicals which are, upon description of said chemicals, emitted or produced by Vulcan Chemical Company.

This opinion, of course, completely contradicts Dr. Polland's statements during his deposition. Under...

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