Walker v. Kerr-McGee Chemical Corp.

• Decision Date: 08 May 1992
• Docket Number: Civ. A. No. EC 87-176-D-D.
• Citation: 793 F. Supp. 688
• Parties: Mickey D. WALKER, Plaintiff, v. KERR-McGEE CHEMICAL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

793 F. Supp. 688

Mickey D. WALKER, Plaintiff, v. KERR-McGEE CHEMICAL CORPORATION, Defendant.

Civ. A. No. EC 87-176-D-D.

United States District Court, N.D. Mississippi, E.D.

May 8, 1992.

COPYRIGHT MATERIAL OMITTED

Charles D. Easley, Jr., Columbus, Miss., for plaintiff.

Kenneth E. Milam, Jackson, Miss., for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

Kerr-McGee Chemical Corporation ("Kerr-McGee"), the named defendant in the above-captioned negligence suit, moves this court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.¹ Original diversity jurisdiction rests with this court under 28 U.S.C. § 1332. Plaintiff Mickey DeWayne Walker ("Walker") asserts Alabama citizenship, defendant acknowledges the state of Delaware as its place of incorporation,² and the amount in controversy exceeds $50,000.

Based on its thorough review of the pleadings, briefs, depositions, authorities, the record as a whole and its own research, the court hereby denies defendant's summary judgment motion.³ Genuine issues of material fact exist concerning defendant's alleged negligence and plaintiff's awareness and assumption of risk. Set out below is the court's opinion.

I. PROCEDURAL AND FACTUAL HISTORY

A. Organizational Background

Plaintiff Walker was employed with Sunland Services, Inc. ("Sunland") as an ironworker. Sunland had recently merged with ISI, Inc. ("ISI"). Prior to its merger with Sunland, ISI had entered into a construction agreement with Kerr-McGee to serve as the chemical company's general contractor for construction work at Kerr-McGee's Hamilton, Mississippi facilities. Pursuant to merger, Sunland replaced ISI as general contractor.

B. The Accident

Walker sustained personal injuries at defendant Kerr-McGee's Hamilton, Mississippi pigment plant on or about August 12, 1985, when he was exposed to a cloud of chemical fumes. The fumes were released when a Kerr-McGee worker opened a valve, apparently with no warning, and permitted spent sulfuric acid to flow into a full pigment tank to either lower or raise the pH level of the paint pigment.⁴ The combination of the acid and pigment created a thick cloud of smoke that rose from the tank and engulfed the area. Walker was standing on a work platform approximately six to ten feet above and five feet to the side of the pigment tank; he was sanding and cleaning the shafts of a motor and aligning a gearbox when the fumes emitted. Exposure to the chemical vapors reportedly caused plaintiff to experience a burning sensation in his eyes, lungs and chest.⁵

Prior to this incident, Walker and other crew members on several occasions complained of chlorine like vapors "burning our lungs or making our eyes burn." (Walker Dep., Sept. 16, 1987, p. 24.) They raised these complaints during Sunland's safety meetings, held routinely every Monday morning. Apparently a vacuum system attached to the tank was not working properly and had been disconnected. (Id. at 17.) When operative, the mechanism is designed to consume the chemical fumes caused when the acid mixes with the liquids stored in the pigment tank. In place of the malfunctioning vacuum, a polyurethane tent was erected to entrap the fumes; the vapors, however, were still escaping.

Arrangements had been made to bring in a safety representative from Kerr-McGee in Oklahoma City, Oklahoma, who would review the problem and meet with the Sunland workers. Walker objected to working in the area but was told "you got to go in there and do it." (Walker Dep. at 24)

C. The Medical Treatment

Upon descending the platform, Walker was assisted out of the building and taken to Kerr-McGee's first-aid station where his eyes were flushed with water. At the insistence of Sunland's general foreman Mike Walker, plaintiff Walker was subsequently transported to the Golden Triangle Medical Center emergency room located in Columbus, Mississippi⁶ where he was examined by Albert H. Laws, M.D., a local ophthalmologist. Dr. Laws initially treated Walker for chemical keratoconjunctivitis.⁷ As his treating physician, Laws provided Walker with further medical care. An examination three days after the incident revealed some improvement and fewer corneal abrasions. Laws advised his patient that he could return to work on August 19, 1985.

Walker was seen again by Laws on August 29, September 5 and November 5, 1985.⁸ During these examinations, the patient continued to complain of blurred vision even though all of the corneal abrasions had healed. On the first of these three visits, Dr. Laws had discovered that Walker had an "unusual inflammatory collection of white blood cells" in the far periphery of the left retina. Clinically known as pars planitis, the condition is commonly referred to as snowballs.⁹ (Dep. of Albert H. Laws, M.D., March 12, 1986, p. 15.) He referred Walker to a retinal specialist in Memphis, Tennessee, David Meyer, M.D. (Id. at 16), who confirmed the diagnosis. Plaintiff sought further medical care from Connie McCAA, M.D., a physician at the University of Mississippi School of Medicine. She too has diagnosed Walker's condition as pars planitis.¹⁰ (Dep. of Connie Smith McCAA, M.D., October 21, 1986, p. 5.)

The cause of pars planitis is unknown.¹¹ More importantly for present purposes, there is no known correlation between the inflammatory eye condition and exposure to chemical fumes. None of the above-named physicians believe that Walker's exposure to the fumes caused his pars planitis; concurrently, they are unable to say that it did not cause it. While Dr. Laws does not know how the exposure to chemical fumes and the inflammatory eye condition relate, he remarked that the "chronological fashion is certainly suspicious that they might be related." (Laws Dep. at 20.) Similarly, Dr. McCaa, when asked during her deposition whether Walker's accident caused his eye condition, stated, "I cannot state that it caused it. I also cannot state that it didn't cause it." (McCaa Dep. at 21-22.)

Though somewhat tenuous, the medical testimony seems to suggest that a relationship between the accident and the eye disease is at least plausible. Coupled with the absence of any prior eye trouble in Walker's personal medical history, the court cannot comfortably hold that there is no "genuine issue" where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Matsushita v. Zenith, 475 U.S. 574, 587, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538, 552 (1986). Thus, an award of summary judgment would be inappropriate.

D. The Claims

1. Workers' Compensation

As an employee, plaintiff sought recovery against Sunland under the Mississippi workers' compensation laws; his claim was, however, denied. The administrative law judge ("A.L.J.") who heard the case, T.W. Pace, found no causal connection or relationship between the pars planitis condition and plaintiff's exposure to toxic gases at Kerr-McGee's pigment facility. Following the initial workers' compensation ruling, Walker undertook a series of unsuccessful appeals beginning with his petition to the Mississippi Workers' Compensation Commission for review of the A.L.J.'s decision. The Commission affirmed the A.L.J. and Walker appealed to Circuit Court on December 8, 1987. The Circuit Court of Monroe County affirmed the Commission on August 30, 1990. On appeal to the Mississippi Supreme Court, the Circuit Court judgment was affirmed on June 26, 1991.

2. The Negligence Suit

Walker also commenced an action for damages arising from his exposure to chemical fumes against Kerr-McGee in this federal district court on June 3, 1987, alleging negligence. Based on the state court decision finding no causal connection between the chemical accident and plaintiff's pars planitis, defendant asserts that Walker is collaterally estopped from "relitigating the issue of whether his injuries were caused by exposure to chemical fumes."¹² (Def.'s Mem.Supp. MSJ, p. 13.) Contending that Walker was aware of and, therefore, assumed the risks and hazards of exposure to the chemical fumes, the company denies any liability to Walker for any injuries he may have sustained.

II. LEGAL DISCUSSION

A. The Full Faith and Credit Clause, U.S.C. Art. 4, § 1 and 28 U.S.C. § 1738

28 U.S.C. § 1738 has been construed as requiring federal courts to "give preclusive effect to state court judgments whenever the courts of the state from which the judgments emerged would do so." Collard v. Incorporated Village of Flower Hill, 604 F.Supp. 1318, 1322 (E.D.N.Y. 1984), quoting Allen v. McMurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980). According to 28 U.S.C. § 1738,

... judicial proceedings of any court of any such State.... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken ...

To determine in a particular case whether a prior state court judgment is to be accorded preclusive effect in the later federal proceeding, reference is had to state law since the rules of preclusion are founded on the premise that a state court judgment is to be given the same preclusive effect in federal court as the judgment would have in the courts of the state from which the judgment emerged. Metro Charities Inc. v. Moore, 748 F.Supp. 1156, 1160 (S.D.Miss.1990). In conjunction with 28 U.S.C. § 1738, the court considers the companion doctrine of collateral estoppel in determining whether issue preclusion applies in Walker's case.

B. Collateral Estoppel

Res judicata and collateral estoppel both deal with the question of whether the adjudication of certain matters is precluded by a prior adjudication. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889-90 n. 6, 72 L.Ed.2d 262 (1982). Under the doctrine of res judicata, parties and their privies are precluded from relitigating claims that were or could have been raised...