Smith v. Monsanto Co.

Decision Date29 September 1992
Docket NumberCiv. A. No. 2:91-0524.
Citation822 F. Supp. 327
CourtU.S. District Court — Southern District of West Virginia
PartiesBlanche SMITH, Administratrix of the Estate of William E. Smith, deceased, Plaintiff, v. MONSANTO COMPANY, a Delaware corporation, Defendant.

W. Stuart Calwell, Charleston, WV, for plaintiff.

Charles M. Love, III, Charleston, for defendant.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on the motions of the defendant, Monsanto Company, for summary judgment.

I. Background

Plaintiffs, William and Blanche Smith, originally filed this action against the defendant, Monsanto Company (hereinafter "Monsanto"), on May 14, 1991. Following Mr. Smith's death on December 14, 1991, an amended complaint was filed which substituted Blanche Smith, Administratrix of the Estate of William E. Smith, in the place and stead of her deceased husband.1

In the amended complaint, plaintiff contends that Mr. Smith was employed by Monsanto at its Nitro, West Virginia, facility from 1945 to 1981, and that, between the years of 1945 and 1955, Mr. Smith was exposed to a chemical referred to as paraaminobiphenyl or "PAB" which was used by Monsanto in the manufacture of various chemical products. See Complaint at ¶ 4.2 According to the complaint, Mr. Smith developed bladder cancer in approximately November, 1989, as a direct result of PAB exposure.

Factually, there is no dispute between the parties that PAB was an important chemical utilized in the manufacture of such products as Ajone-C and Santoflex-B at Monsanto's Nitro, West Virginia plant from the 1930's until approximately July 1, 1955. PAB was manufactured by Monsanto at its Queeny and Krummick plants in St. Louis, Missouri, and was shipped by tank cars to the Nitro plant where it was utilized in the manufacture of Ajone-C and other PAB-containing products.

In Count I of the amended complaint, plaintiff asserts that, sometime prior to October, 1953, Monsanto became aware that employees who were exposed to PAB were at a high risk of developing bladder cancer. As a result, Monsanto commenced a medical monitoring program (hereinafter "PAB program") in approximately 1952 in order to detect precancerous conditions in individual employees before the condition reached an "invasive" or "frank" stage. Plaintiff alleges, however, that Monsanto was negligent in its operation of the PAB program and never notified Mr. Smith of the program and the opportunity for medical monitoring. See Amended Complaint at ¶ 8. Plaintiff contends that, as a result of Monsanto's alleged negligence, Mr. Smith's cancer was not detected until it had reached an invasive stage.

In Count II of the amended complaint, plaintiff alleges that Monsanto acted with deliberate intention to cause William Smith's injuries and death inasmuch as Monsanto had knowledge of a high degree of risk and strong probability that exposure to PAB could cause serious injury, and, nonetheless, continued to expose him to that hazard. See Amended Complaint at ¶ 16. Moreover, plaintiff contends, prior to 1955, Monsanto had a subjective realization and appreciation of the existence of a specific unsafe working condition at the Monsanto workplace, namely, the opportunity for exposure to PAB. Plaintiff asserts that the opportunity for employee exposure to that chemical at Monsanto's Nitro plant prior to its cessation of the production of PAB in 1955 was in violation of commonly accepted and well known safety standards applicable to the use of and exposure to known bladder carcinogens. Id. at ¶¶ 17-19.

Monsanto has filed separate motions for summary judgment on each of the two substantive counts of plaintiff's complaint. With respect to Count I, Monsanto argues that the allegations of negligence asserted with respect to its operation of the PAB program fail as a matter of law due to the statutory immunity afforded employers from negligence based causes of action under W.Va. Code § 23-2-6. With respect to Count II, Monsanto contends that the plaintiff has failed to introduce sufficient evidence on one of the five requisite elements of proof of "deliberate intention" under W.Va.Code § 23-4-2(c)(2).

II. Analysis

Chapter 23 of the West Virginia Code removes from the common law tort system "all disputes between ... employers and employees regarding compensation to be received for injuries or death. See W.Va.Code § 23-4-2(c). This result is achieved by virtue of section 23-2-6 of West Virginia's Workers' Compensation Act (hereinafter "the Act") which provides statutory immunity from suit for those employers who either subscribe to the West Virginia Workers' Compensation Fund (hereinafter "the Fund") or elect to be a self-insurer and comply fully with the requirements of the Act. The provision of the Act conferring employer immunity expressly states:

Any employer subject to this chapter who shall subscribe and pay into the workmen's compensation fund the premiums provided by this chapter or who shall elect to make direct payments of compensation as herein provided shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing and during any period in which such employer shall not be in default in the payment of such premiums or direct payments and shall have complied fully with all other provisions of this chapter.

W.Va.Code § 23-2-6.

West Virginia's Supreme Court has recognized that the legislative immunity afforded employers by the Act is "designed to remove negligently caused industrial accidents from the common law tort system," see Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907, 911 (1978) (emphasis in original), and that "the benefits of this system accrue to both the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits." Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625, 638 (1983).

Under the Act, an employer who is otherwise entitled to immunity under § 23-2-6 may lose that immunity in only one of two ways: (1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, see W.Va.Code § 23-2-8, or (2) by deliberately intending to produce injury or death to the employee. See W.Va.Code § 23-4-2. It is against this statutory framework that the propriety of Monsanto's motions for summary judgment with respect to both Counts I and II must be considered.

A. Motion for Summary Judgment on Count I

As noted previously, Count I is predicated upon allegations of negligence on the part of Monsanto in its administration of the PAB program. In support of its motion, Monsanto has tendered an affidavit certifying its good standing with the Fund and its compliance with the requirements of the Act at all times during the pendency of William Smith's employment. See Affidavit of Gretchen O. Lewis, attached as Exhibit A to Monsanto's motion for summary judgment on Count I (hereinafter "Lewis affidavit"). Plaintiff has not submitted a counter-affidavit or other evidence to refute the averments in the Lewis affidavit, nor otherwise contested the accuracy of the factual assertions therein. Consequently, inasmuch as W.Va.Code § 23-2-6 confers statutory immunity from common law negligence action upon employers who are in good standing with the Fund and have otherwise complied with the requirements the Act, Monsanto contends that there is no genuine issue of fact to preclude the granting of summary judgment in its favor on the negligence claims asserted by the plaintiff in Count I.

In an effort to overcome Monsanto's statutory immunity from negligence based causes of action, plaintiff seeks to invoke the "dual capacity" or "dual persona" doctrine, arguing that Monsanto's implementation of the PAB program went beyond the confines of the employer-employee relationship and established a relationship akin to that of physician-patient.

The "dual capacity" or "dual persona" doctrine is a legal fiction applied by some courts which have held that an employer may, in effect, become "a third person," vulnerable to a tort suit by an employee notwithstanding the statutory immunity otherwise owing to the employer under state compensation laws but "if—and only if—he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." See Deller v. Naymick, 176 W.Va. 108, 342 S.E.2d 73, 78 (1985) (citing 2A A. Larson, The Law of Workmen's Compensation, § 72.81 (1983) and cases cited therein).

In Deller v. Naymick, West Virginia's Supreme Court considered and rejected the dual capacity doctrine in a case in which an injured employee brought a negligence based cause of action against a company physician. The court concluded that the company physician was an "employee" within the meaning of the Act and that the immunity from tort liability provided to employees under W.Va. Code § 23-2-6a (1949) is "the same as the immunity from tort liability provided by W.Va.Code § 23-2-6 (1974) to an employer."3 In declining to "carve out an exception" to that immunity under the facts before it, the Deller court noted that "the legislature, not this Court, is the appropriate tribunal for deciding this fairly debatable issue," and that, by not excepting doctors or other professional employees from the statutory immunity afforded by the Act, "the legislature has decided the issue in favor of immunity." 342 S.E.2d at 77-78.

Plaintiff contends that the rationale and holding in Deller was limited to situations involving negligence actions against co-employees who are entitled to statutory immunity under W.Va.Code § 23-2-6a and is not dispositive of the applicability of the dual capacity doctrine in cases where the negligence action has been asserted...

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