Brown v. Arch Wood Prot., Inc.

265 F.Supp.3d 700

Kevin W. BROWN, Plaintiff,

v.ARCH WOOD PROTECTION, INC., et al., Defendants.

Civil Action No. 13–61–HRW

United States District Court, E.D. Kentucky, Northern Division. at Ashland.

Signed September 25, 2017

Filed September 26, 2017

David S. McCrea, McCrea & McCrea, Bloomington, IN, Richard L. Masters, Masters, Mullins & Arrington, Louisville, KY, for Plaintiff.

Anthony G. Hopp, Jeremy S. Goldkind, Robert L. Shuftan, William R. Andrichik, Steptoe & Johnson, Chicago, IL, David Eugene Crittenden, Michael Scott Jackson, Robert D. Bobrow, Robert Estes Stopher, Boehl, Stopher & Graves, Robert M. Croft, Jr., Anne K. Guillory, Dinsmore & Shohl, LLP, Louisville, KY, James Michael Inman, Ronald L. Green, Green, Chesnut & Hughes PLLC, Lexington, KY, Aviva L. Wernick, Jeffrey B. Goldberg, Nicolas Swerdloff, Hughes, Hubbard & Reed LLP, Miami, FL, for Defendants.

MEMORANDUM OPINION AND ORDER

Henry R. Wilhoit, Jr., United States District Judge

This is a failure to warn products liability action wherein Plaintiff Kevin Brown, who works for a utility company, alleges he sustained harm from being occupationally exposed to toxic levels of arsenic contained in a chemical used to preserve the wood in utility poles on which he worked. [Docket No. 1]. The Court now has before it several fully briefed motions. Specifically, three chemical preservative manufacturer Defendants and three wood-treating company Defendants have filed Daubert motions challenging the admissibility of certain testimony of Plaintiff's experts, and these Defendants contend the exclusion of this testimony requires judgment be entered in their favor as a matter of law. [Docket Nos. 163, 164, 165]. In addition, Defendants have filed summary judgment motions arguing that Mr. Brown's products liability claim fails on the issue of product identification and that his employer's failure to properly train and warn him was the superseding cause of his injuries. [Docket Nos. 159, 162]. Certain Defendants have also filed summary judgment motions arguing that because Mr. Brown's expert on warnings admitted his opinion was not directed to the chemical manufacturers and Defendant Langdale, Plaintiff cannot establish his failure to warn claim against them. [Docket Nos. 160 and 161].

Mr. Brown also has dispositive motions pending. Specifically, Mr. Brown filed two summary judgment motions arguing that he is entitled to judgment as a matter of law on two issues: that he suffered cacosmia¹ as a result of his exposure to the arsenic in the chemical used to treat utility poles; and that two of the chemical manufacturers failed to warn of the hazards caused by splinters from wood treated with the chemical. [Docket Nos. 154 and 157]. In addition, after the close of all discovery and the filing of dispositive motions, Mr. Brown moved for an order compelling initial disclosures by the Defendants, specifically insurance policies from 1985 to the present.² [Docket No. 189]

In considering these various motions, the Court finds its ruling in Stevens v. Arch Wood Protection , 0:12–cv–46–HRW, 2016 WL 5660362 (E.D. Ky. Sept. 28, 2016) is directly on point. The plaintiff there alleged his decedent was harmed from his exposure to the chemical used to preserve the wood in the utility poles on which he worked. This Court held defendants were entitled to judgment as a matter of law because plaintiff failed to present sufficient evidence supporting a reasonable inference that plaintiff's decedent was exposed to the defendants' products. Further, plaintiff had not established the requirements to support his concert of action theory against the two chemical-manufacturing defendants involved in that case.

As explained below, Mr. Brown's claims suffer from the same deficiencies. That is, Mr. Brown has not pointed to any evidence supporting a reasonable inference that he was exposed to any of these Defendants' specific products. Nor has he raised any issues of fact on his concert of action theory. Thus, for the reasons more fully set forth below, the Court will grant Defendants' Motion for Summary Judgment on Product Identification. [Docket Nos. 159]. Because lack of product identification is dispositive of the case, the parties' respective challenges on causation, failure to warn and Plaintiff's opinion testimony are moot, as is Plaintiff's Motion seeking to compel initial disclosures.

I. FACTS³

Mr. Brown alleges that during his employment at Kentucky Power Company (Kentucky Power) he was exposed to arsenic, chromium and copper contained in the chromated copper arsenate (CCA) chemical compound used to preserve the wood in utility poles and cross-arms. [Docket No. 1, ¶¶ 13–14,47 and Deposition of Kevin Brown, Docket No. 159–2, pgs. 20, 34–37]. Mr. Brown began working for Kentucky Power in 1981 and is still so employed. [Docket No. 159–2, at pgs. 7, 47]. He began his career on the line crew with Kentucky Power's Ashland Division, and he remained on the line crew until approximately 2003 or 2004. [Docket No. 159–2, pgs. 47–48]. In addition to building new facilities, line crews at that time had the responsibility for extinguishing pole fires.⁴ [Id. and Docket No. 159–3, pgs. 3–4]. Mr. Brown moved from the line crew to a servicing position in 2003 or 2004. [Docket No. 159–2, pg. 63]. In his servicing position, Mr. Brown still climbs poles, including CCA-treated poles, but rarely, if ever, fights pole fires.⁵ [Id. at pgs. 8, 18, 63].

Mr. Brown alleges he was diagnosed with "adverse health effects consistent with significant exposure to arsenic from the CCA utility poles he handled, sawed, drilled, and extinguished fires [on]." [Docket No. 1, ¶ 33]. Mr. Brown testified his adverse health effects include shortness of breath, fatigue, burning eyes, sensitivity to smells, numbness and tingling in his hands and feet, stiff joints in his neck, hip, ankles and knees, lower back pain and scarring from splinters.⁶ [Docket No. 159–2, pgs. 4–6, 8–19, 29–30]. Mr. Brown stated he believes his health ailments are all caused by his exposure to the chemicals contained in CCA-treated utility poles, and he places specific emphasis on the arsenic in the CCA.⁷ [Id. at pgs. 20, 26–27, 29–32].

Mr. Brown filed this action against three producers of CCA (the chemical-manufacturing Defendants: Arch Wood Protection, Inc. (Arch), Osmose Inc. (Osmose), and Chemical Specialties, Inc. (CSI)) and three purchasers of CCA who used it to treat utility poles (the wood-treating Defendants: Koppers, Inc. (Koppers), Langdale Forest Products Company (Langdale), and T.R. Miller Mill Company, Inc. (T.R. Miller)). [Docket No. 1, ¶¶ 2–3]. Plaintiff claims that Defendants knew of the health hazards caused by CCA exposure, but failed to warn of these dangers. [Id. at ¶¶ 15, 17–18, 24, 31, 35–38, 46, 47, 49, 52].

Defendants Arch, CSI, and Osmose admit in their respective Answers that they manufactured CCA and sold it to certain of the wood-treating Defendants. [Docket Nos. 48, pgs. 1–2; 49, pgs. 1–2 and 51, pgs. 1–2]. Defendants Koppers, Langdale, and T.R. Miller admit that they purchased CCA preservative from Arch, Osmose or CSI to treat utility poles they sold to Kentucky Power. [Docket Nos. 38, pgs. 3–4; 50, pg. 2 and 52, pg. 2]. Specifically, Koppers and T.R. Miller admit they bought CCA from Arch. [Docket Nos. 50, pg. 2 and 52, pg. 2]. Defendant Langdale admits it bought CCA from CSI and Osmose. [Docket No. 38, pg. 3].

The wood-treating Defendants contend, and Plaintiff does not dispute, that while they sold CCA-treated poles to Kentucky Power, they were not the only pole suppliers to Kentucky Power. Defendants presented records demonstrating that Kentucky Power purchased poles from at least seven other suppliers from 1992 to 2003. [Docket Nos. 159–4]. Further, testimony was provided that there is no way to know where any particular pole purchased by Kentucky Power is installed. [Deposition of Timothy Weinmann, Docket No. 159–5, pg. 19].

Mr. Brown explained in his Answers to Kopper's First Set of Interrogatories that while employed with Kentucky Power he has been exposed to arsenic, chromium and copper in CCA-treated utility poles through handling, drilling, sawing and climbing the poles. [Docket No. 159–6, pgs. 12–13]. He also stated he inhaled smoke while drilling the poles and while putting out fires on the poles. [Id. ]. Mr. Brown stated his exposures occurred in Kentucky Power's Ashland Service Area, and he also mentioned he worked storm restoration for other utility companies outside the area. [Docket No. 159–6, pgs. 12–13].

Mr. Brown testified that he attended hundreds of pole fires over the years, but he has not made any effort to identify the specific poles on which he fought fires. [Docket No. 159–3, pgs. 8, 55; see also Plaintiff's Objections and Responses to Defendant Kopper's First Requests for Admissions, Docket No. 159–7, pg. 4 (Mr. Brown admitted he "ha[s] not identified any specific utility pole that caused [his] alleged illness(es) in this lawsuit.") ]. Mr. Brown also testified that he did not have any documents identifying the poles on which he fought fires. [Docket No. 159–3, pg. 8].

Defendants state they took the depositions of 24 of Mr. Brown's co-workers, but none of them could recall a specific pole fire they worked with Mr. Brown. Defendants filed six depositions as being representative of the testimony provided.⁸ [Deposition of Carl Davis, Docket No. 159–10, pg. 14 (did not recall working a pole fire with Brown, but "sure [he] probably did"); Deposition of Bill Fraley, Docket No. 159–11, pgs. 10, 12 (could not recall a specific pole fire Mr. Brown worked on, but recalled him working fires); Deposition of Lloyd Rayburn, Docket No. 159–12, pg. 8 (could not recall a specific pole fire he worked on with Mr. Brown, but assumes they did work fires together because they were on the same crew); Deposition of Tony George, Docket No. 159–13, pg. 14 (saw Mr. Brown fight a lot of fires from a bucket truck, but could not recall a...