McGuffie v. Mead Corp., Civil Action No. CV–05–S–2473–M.

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Citation998 F.Supp.2d 1232
Docket NumberCivil Action No. CV–05–S–2473–M.
PartiesIris McGUFFIE, as personal representative of the Estate of Alford Ray McGuffie, deceased, Plaintiff, v. MEAD CORPORATION, et al., Defendants.
Decision Date21 February 2014

998 F.Supp.2d 1232

Iris McGUFFIE, as personal representative of the Estate of Alford Ray McGuffie, deceased, Plaintiff,
MEAD CORPORATION, et al., Defendants.

Civil Action No. CV–05–S–2473–M.

United States District Court,
N.D. Alabama,
Middle Division.

Feb. 21, 2014.

[998 F.Supp.2d 1235]

Martin K. Berks, Environmental Attorneys Group PC, Birmingham, AL, Cletus P. Ernster, III, Washington & Ernster PLLC, Houston, TX, for Plaintiff.

John A. Smyth, III, H. Thomas Wells, Jr., Thomas J. Butler, Maynard Cooper & Gale, Birmingham, AL, for Defendants.


LYNWOOD SMITH, JR., District Judge.

This case is before the court on motions for summary judgment filed by defendants MW Custom Papers, LLC, and MeadWestvaco Corporation,1 as well as two motions to strike 2 The action was originally filed in the Circuit Court of St. Clair County, Alabama.3 The caption of the complaint named only Alford Ray McGuffie as plaintiff,4 but two persons actually were

[998 F.Supp.2d 1236]

identified in the body of that pleading as plaintiffs: i.e., Alford and his wife, Iris McGuffie.5 Seventeen claims were asserted against numerous defendants, including The Mead Corporation and MeadWestvaco Corporation.6 The gravamen of all of the claims was the allegation that Alford McGuffie had contracted mesothelioma as a result of his exposure to airborne asbestos fibers, originating from the use of raw asbestos fibers or asbestos-containing materials in a pipe manufacturing facility in Ragland, Alabama, known as The Cement Asbestos Products Company (“CAPCO”). Mesothelioma is a cancerous disease of the lining of the lungs caused by exposure to airborne asbestos fibers that usually is fatal.7

The case was removed to this court on December 1, 2005, by defendant MeadWestvaco Corporation (“MeadWestvaco”).8 It should be noted that MeadWestvaco parenthetically referred to itself in the notice of removal as “Mead”: i.e., “Defendant MeadWestvaco Corporation ( hereinafter referred to as ‘Mead’) hereby notices removal of this civil action from the Circuit Court of St. Clair County Alabama....” 9 The removal was based upon the contention that this court possessed “exclusive original jurisdiction over all controversies arising under” the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”).10 The pertinent portions of the Notice of Removal read as follows:

[998 F.Supp.2d 1237]

14. On November 2, 2005, Plaintiffs' [ sic ] filed their Complaint in the Circuit Court of St. Clair County (Alabama). Mead accepted service on November 15, 2005. (See letter attached as Exhibit A.)

Paragraphs fifty-eight and fifty-nine of Plaintiffs' Complaint state:

58. Pursuant to 42 U.S.C. § 7412(b)(1), asbestos is a hazardous air pollutant, and is therefore a “hazardous substance” as defined by Section 101(14) of U.S.C. § 9601(14).

59. Within the community of Ragland Alabama, there exists a pipeline connecting residences and local businesses to various utilities. The pipeline existing in Ragland, Alabama is a “facility” with the meaning of Section 101(9) of CERCLA, 42 U.S.C. § 9601(9). This pipeline is composed of asbestos and asbestos products sold/manufactured by the Defendants.

(Complaint, Attached as Exhibit “B”)

5. Paragraphs fifty-eight and fifty-nine of Plaintiffs' Complaint are drafted so as to expressly state a claim under federal law. Plaintiffs' claims thus fall within the original jurisdiction of the district courts.11

Notwithstanding those statements, all counts of the complaint clearly were premised upon state-law theories of recovery.12

For such reasons, plaintiff's counsel quickly filed an “Emergency Joint Motion” asking this court to remand the case to state court, as well as to permit counsel to perpetuate the testimony of Alford McGuffie in the present case, and Charles Richard Archer in the companion case of Archer vs. Mead Corporation, et al., Civil Action No. CV–05–S–2466–M (N.D.Ala.), based upon the allegation that both men were near death from mesothelioma.13 With regard to the issue of remand, counsel argued that MeadWestvaco's notice of removal

was improper as to both Plaintiffs because: (a) notice was never received by plaintiffs' counsel; (b) plaintiffs' counsel believes the cases were removed on defense counsels' assertion that the case contains allegations under CERCLA. However, on its face, the Complaints contain no CERCLA count, and thus were improperly removed. Even, assuming arguendo, that the complaint did contain a CERCLA [count], it would still

[998 F.Supp.2d 1238]

be an improper basis upon which to remove the case to federal court.14

This court permitted counsel to schedule video depositions on days, and at times and places, permitted by the physicians providing treatment to Messrs. McGuffie and Archer, as well as the administrators of the hospital in which they were housed, but held that aspect of their joint motion seeking remand in abeyance, pending compliance with a briefing schedule addressing that issue. 15

Before the remand question became ripe for decision, however, the case was transferred on or about January 24, 2006, to the Eastern District of Pennsylvania (“the MDL court”) by the Judicial Panel on Multidistrict Litigation (“the MDL Panel”), for the purpose of promoting coordinated and consolidated pretrial proceedings among thousands of similar actions. 16 Accordingly, this court heard nothing more of plaintiff's claims until sometime after September 16, 2011, when the remnants of the prior action were remanded by the MDL Panel.17

A summary of pertinent proceedings conducted in the MDL court is found in the following parts of the brief submitted by MW Custom Papers, LLC (“MW”): 18

4. On March 2, 2010, MW filed its first Motion for Summary Judgment based on Alabama's shareholder immunity defense and the Alabama Supreme Court's holding in Henderson v. MeadWestvaco, 23 So.3d 625 (Ala.2009), which applied Alabama's one year from the date of last exposure statute of limitations applicable to pre–1979 asbestos exposures to the wrongful death claims of a former CAPCO worker under similar facts. (E. Dist. Pa. Docket Entry 7).

5. On August 13, 2010, the MDL court granted MW's Motion for Summary Judgment based on Alabama's shareholder immunity defense, and thus did not address MW's other bases for summary judgment. (E. Dist. Pa. Docket Entry 32).

[998 F.Supp.2d 1239]

6. On August 23, 2010, Plaintiff filed a Motion for Reconsideration asking the MDL court to vacate its order granting summary judgment and order MW to respond to Plaintiff's discovery requests. (E. Dist. Pa. Docket Entry 34).

7. On January 14, 2011, the MDL court granted Plaintiff's Motion for Reconsideration, denied MW's motions for summary judgment without prejudice, and required MW to respond to Plaintiff's discovery requests. (E. Dist. Pa. Docket Entry 75).

8. MW filed a Renewed Motion for Summary Judgment on March 15, 2011, based on Alabama's shareholder immunity defense and Alabama's pre–1979 statute of limitations for asbestos exposure cases. (E. Dist. Pa. Docket Entry 79).

9. On April 28, 2011, Plaintiff Iris McGuffie filed a Suggestion of Death and Motion to Substitute Proper Party, notifying the MDL court that Mr. McGuffie passed away on January 23, 2006, and requesting that she be substituted as Personal Representative of his estate. (E. Dist. Pa. Docket Entry 92).

10. On July 29, 2011, the MDL court issued its Order addressing MW's Renewed Motion for Summary Judgment. (E. Dist. Pa. Docket Entry 121, 122). The court found that “Plaintiffs' claims are not [barred by the pre–1979 exposure rule], as they have presented evidence that may show post–1979 exposure.” (E. Dist. Pa. Docket Entry 121 at p. 19). The MDL court found that MW was entitled to summary judgment on Plaintiff's theories of liability based on product liability, voluntary assumption of the workplace safety obligations of CAPCO, and premises liability claims relating to exposures that allegedly occurred at Mead-owned dumpsites. Id. However, the MDL court allowed Plaintiff's negligent safety inspection claim to stand. Id.

11. On August 11, 2011, the MDL court issued an Order to the Clerk for the United States Judicial Panel on Multidistrict Litigation, suggesting that this case be remanded back to this Court “for resolution of all matters pending within this case except punitive damages.” (E. Dist. Pa. Docket Entry 123).

12. MW filed a Motion for Reconsideration on August 12, 2011, which was denied by the MDL court on August 31, 2011. (E. Dist. Pa. Docket Entry 124, 127). In denying the Motion, the MDL court failed to substantively address whether, applying the post–1979 “discovery rule” statute of limitations, the instant claims were time barred because of Mr. McGuffie's 1996 lawsuit that alleged personal injuries as a result of asbestos exposure at the CAPCO plant.

13. On September 7, 2011, the MDL court granted Plaintiff's motion to substitute Iris McGuffie as the proper party to represent the Estate of Alford McGuffie. (E. Dist. Pa. Docket Entry 128).

14. On September 16, 2011, the Clerk of the Judicial Panel on Multidistrict Litigation issued an order remanding the case from the MDL and reopening it in this Court. (Doc. 99).

15. Following remand to this Court, the parties jointly designated documents from the Eastern District of Pennsylvania's docket for inclusion in the files to be remanded to the Northern District of Alabama on October 14, 2011, pursuant to Rule 10.4(a) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation. (E. Dist. Pa. Docket Entry 130).19

[998 F.Supp.2d 1240]

According to the MDL Panel's remand order, the only claim that remains pending in this once sprawling suit against numerous defendants is an allegation that The Mead Corporation voluntarily undertook a duty to conduct safety inspections at the CAPCO plant, but did so negligently,20asserted against Mead Westvaco (the corporate successor to The Mead...

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