Norma Bootenhoff1 & Eugene Bootenhoff v. Hormel Foods Corp.
| Decision Date | 01 August 2014 |
| Docket Number | Case No. CIV-11-1368-D |
| Parties | NORMA BOOTENHOFF and EUGENE BOOTENHOFF, Plaintiffs, v. HORMEL FOODS CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Before the Court is the Motion for Summary Judgment of Defendants Meadwestvaco Corporation and MW Custom Papers, LLC and Brief in Support [Doc. No. 190]. Plaintiffs have responded to the Motion [Doc. No. 198] and Defendants have filed a reply [Doc. No. 212]. Also before the Court is Defendants' Motion to Strike Certain Exhibits in Plaintiffs' Evidentiary Materials and Brief in Support [Doc. No. 213], Plaintiffs' response thereto [Doc. No. 218] and Defendants' reply [Doc. No. 221]. These matters are fully briefed and ready for decision.
This is a "take-home" or "secondary" asbestos exposure case. Plaintiffs contend Eugene Bootenhoff's clothing was contaminated with asbestos that he took home from the workplace and that his wife, Norma Bootenhoff, was exposed to asbestos when she laundered her husband's work clothes. Norma Bootenhoff was diagnosed with mesothelioma many years later and Plaintiffs allege she contracted the disease as a result of her exposure to asbestos.
Plaintiffs seek to impose liability on Defendants Meadwestvaco Corporation and MW Custom Papers, LLC (the Mead Defendants) and allege that the asbestos exposure occurred, in part, during Eugene Bootenhoff's former employment with Mead Container, owned by the Mead Corporation, a predecessor to these companies.2
Plaintiffs bring a negligence claim against the Mead Defendants and seek to recover compensatory and punitive damages. The Mead Defendants move for judgment as a matter of law on Plaintiffs' negligence claim.3
The Court has addressed by separate order the motion for summary judgment of Defendant International Paper Company (IPC).4 IPC's predecessor companies, Weyerhaueser and Horner Waldorf, are two of the former employers of Eugene Bootenhoff where Plaintiffs also allege exposure to asbestos occurred. Plaintiff worked at Mead Container in between his periods of employment with Weyerhaueser and Horner Waldorf. As more fully set forth below, in responding to the Mead Defendants' motion for summary judgment, Plaintiffs rely upon much of the same evidence as that presented in their response to IPC's motion for summary judgment, particularly with respect to the issue of foreseeability. Where appropriate and as indicated herein, the Court adoptsthe analysis set forth in its Order granting IPC's Motion for Summary Judgment (the IPC Order) [Doc. No. 272].
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way," and it is material "if under the substantive law it is essential to the proper disposition of the claim." Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In making this determination, the Court must view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the party opposing summary judgment. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
"The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998) (citation omitted). The burden then shifts to the nonmovant to "go beyond the pleadings and 'set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Id. at 671 (citations omitted); see also Fed. R. Civ. P. 56(c)(1)(A). The nonmovant must identify facts by reference to affidavits, deposition transcripts or specific exhibits. Id. "The court need consider only the cited materials, but may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). The Court's inquiry is whether the facts and evidence identified by the parties present "a sufficient disagreement to require submission to a jury or whether it is so one-sided thatone party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
In its motion, the Mead Defendants set out a "Statement of Material Undisputed Facts" and identify seven facts supported by citation to the summary judgment record. Plaintiffs, in their response brief, did not include a section stating which, if any, of those facts are either undisputed or immaterial, ignoring the requirements of the Local Civil Rules of this Court.5
Moreover, Plaintiffs have submitted 42 exhibits in response to the Mead Defendants' motion. More than half of those exhibits are not cited anywhere in Plaintiffs' response brief. Many of the uncited exhibits are voluminous. For example, Exhibit 41 is 763 pages in length. The Court admonishes counsel for the careless and excessive presentation of evidentiary materials resulting in needless expense of client and judicial resources.
When challenging the movant's assertion that a fact is undisputed, the responding party has the burden "to ensure that the factual dispute is portrayed with particularity, without . . . depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283,1290 (10th Cir.2004) (quotations omitted).6 If a nonmovant "fails to properly address another party's assertion of fact as required by Rule 56(c)," the fact may be deemed admitted for purposes of the motion. Fed.R.Civ.P. 56(e)(2). Accordingly, pursuant to LCvR 56.1 and Fed. R. Civ. P. 56(e)(2), the Mead Defendants' Statement of Fact Nos. 1-7 are deemed admitted for purposes of this motion. These and additional facts discussed infra, are established by the summary judgment record.
The parties agree that, as to the Mead Defendants, any alleged asbestos exposure occurred in Arkansas during Mr. Bootenhoff's employment at Mead Container. They do not contend that any exposure occurred in Oklahoma.
Eugene Bootenhoff worked at Mead Container from 1966 through mid-summer 1972. He was a plant superintendent and was in charge of operations and administrations. He spent approximately 35 percent of his time in an office and the remaining 65 percent of his time on the production floor. He did not perform any hands-on work with any of the machinery. However, he was sometimes present when the boiler was opened up for work and when pumps were serviced by others.
The Mead Container plant manufactured boxes. There is no evidence in the record that the boxes contained asbestos. Rather, the alleged exposure resulted from the presence of asbestos in pipe insulation and the boiler used to operate machinery at the facility. See Plaintiffs' Response at p. 4 ( ) (citing deposition testimony of Eugene Bootenhoff). There is no evidence in the record that Mr. Bootenhoff experienced any direct exposure to asbestos during his employment at Mead Container. And, Eugene Bootenhoff did not personally handle any asbestos-containing products during his employment there.
Norma Bootenhoff visited Mead Container only a couple of times a year. Mr. Bootenhoff could not recall her ever being present when the boiler was open for maintenance or when a pump was being serviced.
It is further undisputed that the Bootenhoffs have lived in Oklahoma since 1976. Norma Bootenhoff was diagnosed with mesothelioma while domiciled in Oklahoma and she later died from the disease. At the time of her death Norma Bootenhoff was domiciled in Oklahoma and Eugene Bootenhoff continues to reside in Oklahoma. In this action, Mr. Bootenhoff is not making any claims that he has suffered from any asbestos-related disease.
The parties dispute the applicable law governing Plaintiffs' negligence claim."A federal court sitting in diversity . . . must apply the substantive law of the forum state, including its choice of law rules." Otis Elevator Co. v. Midland Red Oak Realty Inc., 483 F.3d 1095, 1101 (10th Cir.2007). Thus, the Court looks to Oklahoma's choice-of-law rules in determining what law to apply.
Plaintiffs contend the claims are governed by Arkansas law where Eugene Bootenhoff worked for Mead Container. The Mead Defendants urge application of Oklahoma law becauseOklahoma is where Plaintiffs have been domiciled and where the Mead Defendants contend the injury to Norma Bootenhoff occurred.
This Court has previously conducted a thorough choice-of-law analysis in its order ruling on the motion for summary judgment filed by Defendant International Paper Company (IPC). The Court concluded that Oklahoma law governs Plaintiffs' negligence claim against IPC.
For substantially the same reasons set forth in that order, the Court finds Oklahoma law governs the claims here. As more fully discussed in the IPC Order, under Oklahoma's choice-of-law rules, this Court must apply the tort law of the state with the most significant relationship to the occurrence and the parties. See Hightower v. Kan. City Southern Ry. Co., 70 P.3d 835, 842 (Okla. 2003). This test requires the consideration of four factors: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties occurred. Id. (internal quotation marks omitted); see also Brickner v. Gooden, 525 P.2d...
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