Norma Bootenhoff1 & Eugene Bootenhoff v. Hormel Foods Corp.

NORMA BOOTENHOFF¹ and EUGENE BOOTENHOFF, Plaintiffs, v. HORMEL FOODS CORPORATION, et al., Defendants.

Case No. CIV-11-1368-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

July 30, 2014

ORDER

Before the Court is Defendant International Paper Company's Motion for Summary Judgment [Doc. Nos. 230, 231]. Plaintiffs have responded to the Motion [Doc. No. 239] and Defendant has filed a reply [Doc. No. 247]. Also before the Court is Defendant International Paper Company's Combined Motion to Strike and Memorandum of Law in Support [Doc. No. 246] and Plaintiffs response thereto [Doc. No. 249]. These matters are fully briefed and ready for decision.

I. Background

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. Plaintiffs seek to impose liability on Defendant International Paper Company (IPC), throughits predecessor companies, Wehyerhaueser and Hoernher Waldorf, and allege that the asbestos exposure occurred during Eugene Bootenhoff's former employment with these companies.²

Plaintiffs bring a negligence claim against IPC and seek to recover compensatory and punitive damages. IPC moves for judgment as a matter of law on Plaintiffs' negligence claim. IPC also moves for judgment as a matter of law, construing Plaintiffs' Second Amended Complaint to allege strict liability claims for products liability and/or engaging in an ultrahazardous activity. In responding to IPC's summary judgment motion, Plaintiffs do not address any strict liability claim and expressly concede they do not seek recovery against IPC on the basis of products liability. See Plaintiffs' Response at p. 9 ("Plaintiffs are not making product liability claims against [IPC]."). Therefore, the sole issue before the Court is whether IPC is entitled to judgment as a matter of law on Plaintiffs' negligence claim.

II. Standard Governing Summary Judgment

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 drawreasonable 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 that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

III. The Record Before the Court

In its motion, IPC sets out a "Statement of Material Undisputed Facts" and identifies fourteen facts supported by citation to the summary judgment record. Plaintiffs, in their response brief, did not include a section stating which, if any of IPC's facts are either undisputed or immaterial, ignoringthe requirements of the Local Civil Rules of this Court.³ 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).⁴ 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), IPC's Statement of Fact Nos. 1-14 are deemed admitted for purposes of this motion. These and additional facts discussed infra, are established by the summary judgment record.

Material and Undisputed Facts

IPC is a Delaware corporation. IPC is a defendant in this action because of its acquisition of a Weyerhaeuser box manufacturing plant in Austin, Minnesota and a Hoerner Waldorf box manufacturing plant in Denver, Colorado. The parties agree that, as to IPC and its predecessors, anyalleged asbestos exposure occurred in either Minnesota or Colorado.⁵ They do not contend that any exposure occurred in Oklahoma. However, IPC states that Eugene Bootenhoff worked "as plant manager of the Hoerner Waldorf/Champion International box plant in Oklahoma City from 1976 until his retirement in 1998." According to IPC, "[t]his is the very same IPC legacy company that owned the plant in Denver, Colorado." See IPC's Reply [Doc. No. 247] at p. 5 n. 5.⁶

Eugene Bootenhoff worked at Weyerhaueser in Austin, Minnesota from 1955 through 1966. He held three different jobs during the period of his employment. First, he was a printing press operator from 1955 until 1958. He did not work with or around any asbestos-containing products in this position. Next, he worked in quality control in 1959. On two different occasions while in this position, Eugene Bootenhoff removed and installed asbestos-containing pipe insulation on a corrugating machine at the warehouse. The work lasted an hour or two on each occasion. It is the only direct exposure to asbestos he experienced during his employment at either of IPC's predecessors. Finally, he worked as a plant supervisor from 1960 until 1966. While a plant supervisor, Eugene Bootenhoff did not personally handle asbestos-containing products.

By 1972, the Bootenhoffs had moved to Colorado, and from 1972 until 1976 Eugene Bootenhoff worked as a plant supervisor at Hoerner Waldorf. He did not personally handle asbestos-containing products in this position.

Significantly, neither Weyerhaueser nor Hoerner Waldorf manufactured asbestos -containing products. Instead, the record shows that asbestos was "more likely than not" present at their facilities in pipe insulation and in insulation contained within equipment used in operations at these facilities for the manufacturing of boxes.⁷ There is no evidence that the boxes manufactured by the companies contained asbestos. As stated, the undisputed facts show that after 1959 Eugene Bootenhoff had no direct exposure and that the two occasions in 1959 during which he did experience direct exposure were limited. In addition, Norma Bootenhoff was never directly exposed to asbestos at Weyerhaeuser or Hoerner Waldorf.

It is further undisputed that the Bootenhoffs have lived in Oklahoma since 1976. Norma Bootenhoff's estate was probated in Oklahoma and Eugene Bootenhoff continues to reside in Oklahoma.

Finally, it is undisputed that Norma Bootenhoff was first diagnosed with mesothelioma in August 2009, while domiciled in Oklahoma. Plaintiffs have presented no evidence that Norma discovered the disease, or suffered symptoms of the disease, while she resided in either Minnesota or Colorado. Moreover, the record shows that Eugene Bootenoff does not have an asbestos-related disease or any other medical condition as a result of his work with or around equipment or materials containing or utilizing asbestos.

IV. Discussion

A. Choice of Law

The parties dispute the applicable law governing Plaintiffs' negligence claim. Plaintiffs contend the claims are governed by Minnesota or Colorado law where Eugene Bootenhoff worked for Weyerhaeuser and Hoerner Waldorf, respectively.⁸ IPC urges application of Oklahoma law because Oklahoma is where Plaintiffs have been domiciled and where IPC contends the injury to Norma occurred.

"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.⁹

Oklahoma's Most Significant Relationship Test

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) ("[T]he rights and liabilities of parties with respect to a particular issue in tort should be determined by the law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties.") (internal quotationmarks omitted). This test, adopted from the Restatement (Second) of Conflict of Laws § 145 (1971), 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. (...