Melissa Ann Bobo v. Tennessee Valley Authority

Citations: 855 F.3d 1294; 41 I.E.R. Cas. (BNA) 1781; 2017 U.S. App. LEXIS 7364; 2017 WL 1488237Docket: 15-15271

Court: Court of Appeals for the Eleventh Circuit; April 26, 2017; Federal Appellate Court

Original Court Document: View Document

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The case involves Barbara Bobo and her estate against the Tennessee Valley Authority (TVA), stemming from claims of negligence concerning asbestos exposure. Barbara Bobo's husband, James “Neal” Bobo, a TVA employee for over 22 years, died from a heart attack following a diagnosis of asbestos-induced lung cancer. Barbara was later diagnosed with malignant pleural mesothelioma in 2011 and underwent painful treatments, including chemotherapy and surgery, ultimately leading to her death in 2013. Before her passing, she filed a lawsuit alleging that TVA's negligence allowed her to be exposed to “take-home” asbestos from washing her husband’s work clothes.

The case was heard in the United States District Court for the Northern District of Alabama, where the court found in favor of the plaintiffs after a three-day bench trial, leading TVA to appeal. Key evidence presented included testimonies from co-workers and TVA staff confirming that James Bobo's work involved handling asbestos insulation, which would have contaminated his clothing. The district court concluded there was a "preponderance of the evidence" that asbestos fibers accumulated on Mr. Bobo's clothes, contributing to his wife's exposure and subsequent illness.

Mrs. Bobo washed her husband’s work clothes, which were contaminated with asbestos, approximately two thousand times over twenty-two years. She testified that shaking out the dust from these clothes made the laundry room appear “foggy,” and she inhaled some of the dust. The district court found it likely that she unknowingly inhaled dangerous asbestos concentrations during this process. 

During Mr. Bobo’s employment at TVA from 1975 to 1997, OSHA implemented regulations to address asbestos exposure, requiring employers to provide protective measures for employees, including laundering contaminated clothing in a manner that prevented airborne asbestos release. TVA had internal policies mirroring OSHA regulations, such as providing separate lockers for contaminated work clothes and street clothes, and mandating the use of respirators.

However, TVA failed to comply with its own safety directives, not providing protective clothing or separate facilities for workers not in designated high-risk areas. After Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011, she sued TVA and eight other defendants, alleging her illness was caused by take-home asbestos exposure. Although she dismissed claims against the other defendants, her case against TVA proceeded based on negligence. After her death in 2013, her daughters took over as plaintiffs. Following a three-day trial, the court found TVA liable, establishing that TVA owed a duty of care to Mrs. Bobo to prevent take-home asbestos exposure, as the risk of harm was foreseeable under Alabama law.

The court found that TVA breached its duty by not enforcing safety protocols to prevent asbestos exposure at Browns Ferry, which significantly contributed to Mrs. Bobo's mesothelioma. The initial damages awarded to the plaintiffs totaled $3,410,832.56, later amended to $3,391,420.31 due to post-trial settlements. TVA challenged the judgment on multiple grounds, arguing that the district court improperly considered Mr. Bobo's state court deposition and relied on expert testimony regarding causation. 

Regarding Mr. Bobo's deposition, although the court ruled it inadmissible prior to trial, its consideration was deemed harmless due to substantial other evidence proving his exposure to asbestos, including testimony regarding his work with asbestos-containing materials. TVA admitted that asbestos was present during Mr. Bobo’s employment, and multiple witnesses confirmed the use of asbestos insulation at the plant. 

On the issue of expert testimony from Dr. Eugene Mark, TVA claimed his opinion on causation was unreliable. However, the court reviews expert testimony admissibility for abuse of discretion and found that TVA mischaracterized Dr. Mark's opinion, which did not simply assert that any exposure was a substantial factor in causing mesothelioma.

Dr. Mark testified that there is no established threshold level of asbestos exposure that guarantees zero risk of mesothelioma, asserting that all significant exposures contribute to its causation. However, he clarified that an isolated exposure to a single asbestos fiber is not considered "special" or "significant." He emphasized the importance of the "dose-response relationship" and the challenges in quantifying when an exposure becomes significant, noting that cumulative exposure over time, rather than isolated instances, is more relevant. While he affirmed that significant exposures contribute to mesothelioma, he did not claim that every exposure is a substantial factor in causing the disease. His testimony was supported by scientific literature and included discussions on laundering asbestos-contaminated clothing and take-home exposure risks. Dr. Mark concluded that Mrs. Bobo’s 22 years of laundering her husband's work clothes exposed her to asbestos in a manner that substantially contributed to her mesothelioma. The district court's admission of Dr. Mark's expert testimony was upheld, particularly in the context of a bench trial where the judge serves as the factfinder. TVA contested the district court's finding that it had a duty under Alabama law to prevent Mrs. Bobo's exposure to take-home asbestos, a legal determination reviewed de novo. The district court sought clarification from the Alabama Supreme Court on two questions regarding premises liability and causation standards related to multiple asbestos exposures. The Alabama Supreme Court declined to answer these questions without explanation.

The Court has declined to accept the second certified question regarding the existence of a duty under Alabama law, referencing precedents such as Sheffield v. Owens–Corning Fiberglass Corp. and Owens–Corning Fiberglass Corp. v. Gant. The plaintiffs interpreted the Court's refusal to answer the first certified question as an implicit agreement with the district court's analysis that recognized a duty. However, the Court clarified that it merely exercised its authority to decline answering the question, and the district court had not made a definitive determination on the existence of a legal duty. Instead, the district court highlighted the need for the Alabama Supreme Court to address whether policy considerations regarding duty to family members in take-home asbestos cases outweigh foreseeability of injury.

The Court emphasized that determining the existence of a duty of care is a legal question essential for negligence claims in Alabama. It reiterated that without a duty, negligence cannot be established. Courts must consider various factors, including public policy and foreseeability, with foreseeability being the key factor in Alabama law. Although there is no Alabama appellate case on duty to prevent take-home asbestos exposure, other jurisdictions have recognized such a duty based on foreseeability. The Tennessee Supreme Court case Satterfield v. Breeding Insulation Co. is cited as an example where foreseeability was deemed critical in determining an employer's duty to prevent harm from take-home asbestos exposure.

The Supreme Court of California's Kesner decision establishes that employers have a duty to protect employees' household members from take-home asbestos exposure based on a duty analysis that considers seven factors, with foreseeability being paramount. The court found it foreseeable that employees handling asbestos could carry fibers home, thus supporting the imposition of a duty of ordinary care toward household members. Other jurisdictions, including Kentucky and Texas, applied a foreseeability-based approach but determined that the specific facts of those cases did not establish foreseeable harm. Illinois courts similarly dismissed a case due to the plaintiff's insufficient allegations regarding foreseeability.

In contrast, several states have declined to impose such a duty, with some codifying this position. This trend suggests a divergence in judicial interpretation, with Alabama courts likely leaning toward the majority view, which traditionally does not impose a duty in these circumstances. However, the Alabama Supreme Court has shown a focus on foreseeability as a critical factor in determining duty, indicating that if the facts warranted it, a duty could be recognized in Alabama as well. Overall, the legal landscape regarding employer duty concerning take-home asbestos exposure is complex, with foreseeability remaining a central theme in duty analyses across jurisdictions.

Courts adhering to the “majority” view prioritize the relationship between parties over foreseeability when determining duty of care, as exemplified in cases like Quiroz. In contrast, Alabama courts emphasize foreseeability, particularly regarding employer responsibilities to prevent take-home asbestos exposure, especially when public policy considerations favor establishing such a duty. The district court determined that TVA foresaw potential injuries to Mrs. Bobo from asbestos exposure. Foreseeability does not require anticipation of specific harm, but rather acknowledges general harm that could arise. TVA was aware of OSHA regulations designed to protect both workers and their families and recognized the heightened risk of cancer for family members due to asbestos carried home on work clothes. Although TVA implemented policies to mitigate this risk, such as requiring separate lockers for street clothes, these policies were not enforced. The collective understanding of these regulations and policies indicates that TVA acknowledged the risk of exposing employees' household members to asbestos. The Alabama Supreme Court supports the notion that when a defendant's actions directly contribute to foreseeable harm, a duty arises. TVA's use of asbestos-containing products and its failure to prevent exposure substantiate a breach of duty toward Mrs. Bobo. Furthermore, public policy considerations reinforce the necessity of imposing a duty on TVA, as it possessed the knowledge and means to mitigate risks associated with take-home asbestos exposure but neglected to comply with both regulatory and internal safety requirements.

TVA has a legal duty to prevent harm to foreseeable third parties, which is supported by Alabama public policy. The Alabama Supreme Court identifies the relationship between parties, the nature of the defendant's activity, and the type of injury as key factors in determining negligence. This duty does not require a formal legal relationship, as established in cases like Taylor and Kelly, where foreseeability of harm led to the imposition of a duty of care. In this case, TVA's employment of Mrs. Bobo's husband and the exposure to asbestos that ultimately caused her death establishes a sufficient relationship to impose such a duty.

TVA argues that recognizing this duty would result in greater liability, but this liability is not limitless and is confined to foreseeable victims, such as family members of employees. The prospect of increased liability serves a deterrent function consistent with tort law principles. The Hinton decision, which denied a claim for medical monitoring due to lack of present injury, does not apply here since Mrs. Bobo has already suffered and died from the effects of TVA's negligence.

Finally, TVA's assertion that recognizing this duty would expand Alabama law is misplaced, as federal circuit court decisions are not binding, and no relevant state court decisions support this claim.

As a federal court adjudicating diversity cases, the responsibility is to interpret state law as the state’s highest court would. In this case, it is predicted that the Alabama Supreme Court would recognize a duty of care related to the exposure to take-home asbestos. Alabama law emphasizes foreseeability, the creation of risk by the defendant, and public policy considerations in duty analysis. The court agrees with the district court that TVA had a duty not to expose Mrs. Bobo to asbestos and failed in that duty.

TVA contests the district court's causation standard regarding the claim that asbestos from the Browns Ferry plant led to Mrs. Bobo's mesothelioma. The Alabama Supreme Court's references to Sheffield and Gant clarify that a plaintiff must demonstrate it is "more likely than not" that the defendant's asbestos product was a substantial factor in the injury. The district court found sufficient evidence, including the frequency of Mrs. Bobo’s laundering of her husband’s asbestos-laden work clothes, which contributed to her exposure. 

TVA argues that the district court incorrectly applied the causation standard, asserting that Alabama would require adherence to the "frequency-regularity-proximity" test established in Lohrmann, which TVA claims the plaintiffs did not meet.

The Fourth Circuit, interpreting Maryland law in Lohrmann, dismissed a plaintiff's circumstantial evidence claim linking his presence at a job site with the use of the defendant’s asbestos product, stating that mere simultaneous presence does not demonstrate actual exposure. The court emphasized that to reasonably infer substantial causation from circumstantial evidence, the plaintiff must show consistent exposure to the specific product over a significant duration and in proximity to their actual work. The evidence presented, indicating the plaintiff worked near the product on ten to fifteen occasions for one to eight hours, failed to meet the established frequency-regularity-proximity criteria.

Subsequently, the Alabama Supreme Court in Kruse v. Vanderbilt Minerals, LLC referenced the Lohrmann decision while discussing exposure standards in asbestos liability cases. The court favored the "direct exposure" standard, asserting that it aligns logically with the requirement for a plaintiff to prove that a product caused their injuries. It noted that the majority of courts follow the frequency-regularity-proximity test from Lohrmann for causation.

In Kruse, the plaintiff demonstrated substantial exposure over thirty-seven years in areas where the defendant's product was utilized, which the Alabama Supreme Court found sufficient to infer exposure, although it distinguished this from proving that the exposure was a substantial cause of the plaintiff’s mesothelioma. The court did not resolve which exposure standard was correct, as the plaintiff's evidence met the criteria of either standard. The document concludes that, similarly, in the current case, the evidence of exposure is adequate to satisfy either exposure standard.

TVA contends that the plaintiffs failed to provide necessary industrial hygiene measurements or quantifiable evidence regarding Mr. Bobo’s exposures at Browns Ferry, including the frequency, duration, and levels of exposure to asbestos. TVA argues that without such evidence, estimates of Mrs. Bobo's exposure are speculative. However, TVA’s own lack of compliance with OSHA’s air monitoring requirements and its “Personal and Environmental Monitoring” obligations contributed to this absence of evidence. During Mr. Bobo’s twenty-two years at Browns Ferry, he handled asbestos-containing materials, resulting in asbestos fibers accumulating on his clothing, which Mrs. Bobo was regularly exposed to. Her credible testimony indicated significant exposure, claiming the air was foggy with dust from shaking out his work clothes. Expert testimony indicated that there is no safe level of asbestos exposure, and the extensive exposure Mrs. Bobo incurred far exceeded any potential safety threshold.

Additionally, TVA seeks to invoke the discretionary function exception to avoid liability, which shields the agency from lawsuits when engaging in certain governmental functions that involve judgment or choice. This exception applies only if the conduct in question is the type that the exception is designed to protect and if no federal statute or regulation explicitly mandates a specific action.

The district court determined that TVA is not liable for failing to provide asbestos training or warnings about take-home exposure but can be held liable for violating mandatory regulations regarding asbestos exposure. TVA argued that liability requires proof of exposure exceeding specified limits, asserting that it had discretion to expose employees to levels below these limits. However, the court found TVA's exposure of Mr. Bobo to asbestos exceeded allowable limits and that no discretion existed regarding actions required to prevent asbestos contamination from leaving the plant. TVA's regulations mandated separate lockers for work and street clothes to prevent asbestos contamination, which TVA failed to enforce, resulting in Mrs. Bobo's exposure and subsequent illness and death.

The court awarded Mrs. Bobo's daughters, as personal representatives of her estate, a total of $3,391,420.31 in damages, with TVA challenging only the medical expenses component of $537,131.82. The parties agreed that the plaintiffs are entitled to recover amounts actually paid for medical expenses, but they dispute the recovery of amounts billed but not paid due to provider adjustments. TVA contends that plaintiffs cannot recover these "written off" amounts, while the plaintiffs argue they are entitled to all such amounts. The treatment of these written off medical expenses is governed by Alabama law.

Under Alabama law, a plaintiff must demonstrate the existence and amount of damages to recover them. Specifically, medical expenses can only be claimed if the plaintiff has paid or is liable for those expenses. Amounts written off by medical providers under contracts with insurers do not count as paid or owed by the plaintiff, thus cannot be included in damages. The collateral source rule allows plaintiffs to recover damages without reducing them by amounts paid by independent sources, such as insurance. The court affirmed the finding of liability against TVA but vacated the damages award due to improper inclusion of amounts written off by medical providers. The case is remanded for recalculation of the damages award, focusing exclusively on the accurate medical expenses. Prior stipulations indicated discrepancies in the amounts paid and written off, necessitating further examination by the district court.