United States District Court, N.D. Alabama, Northeastern Division
MELISSA ANN BOBO and SHANNON JEAN COX, as Co-Personal Representatives of the Estate of Barbara Bobo, deceased, Plaintiffs,
TENNESSEE VALLEY AUTHORITY, Defendant.
C. LYNWOOD SMITH, Jr., District Judge.
Barbara Bobo, now deceased, commenced this action during her lifetime. The gravamen of her complaint was that she suffered from malignant pleural mesothelioma as a result of being "wrongfully exposed" to asbestos fibers, "an inherently dangerous toxic substance, " that originated in the Browns Ferry Nuclear Plant operated by the Tennessee Valley Authority. Mrs. Bobo, however, never worked for the Tennessee Valley Authority in any capacity. Moreover, she was never inside its Browns Ferry Nuclear Plant. Instead, her claims were derivative: that is, they grew out of her weekly practice of laundering the asbestos-laden work clothes worn by her husband during the twenty-two years that he was employed at the Browns Ferry Nuclear facility.
Mrs. Bobo's original complaint asserted claims against nine defendants, seven of which had allegedly developed, manufactured, marketed, distributed, or sold asbestos-containing products,  and one (the Metropolitan Life Insurance Company) that had allegedly "conspired with other asbestos suppliers and product manufacturers to mislead the public as to the hazards of asbestos." All of Mrs. Bobo's claims against those other defendants were dismissed at various stages of the proceedings pursuant to stipulations for dismissal.
Mrs. Bobo departed this life about fifteen months after filing suit,  but her claims were not extinguished by death and survived in favor of her daughters, who were appointed co-personal representatives of their mother's estate by the Probate Court of Lauderdale County, Alabama. A timely motion to substitute them as plaintiffs was granted pursuant to Federal Rule of Civil Procedure 25(a)(1). The case thereafter proceeded to a bench trial on plaintiffs' claim that their deceased mother had contracted malignant plural mesothelioma as a result of negligence on the part of the Tennessee Valley Authority. Following consideration of the parties' pleadings, pre-trial evidentiary submissions, trial testimony and exhibits, briefs, and arguments of counsel, this court observed that the outcome of plaintiffs' claims turns upon, and will be controlled by, two unsettled questions of Alabama tort law.
Certification by a federal court of questions of state law is permitted under Article VI, § 6.02(b)(3) of the 1901 Alabama Constitution, as amended,  and Alabama Rule of Appellate Procedure 18, providing, in pertinent part, as follows:
(a) When Certified. When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified question the Supreme Court of this State, by written opinion, may answer.
(c) Method of Invoking Rule. The provisions of this rule may be invoked by any of the federal courts upon its own motion or upon the suggestion or motion of any interested party when approved by such federal court.
Ala. R. App. P. 18.
Moreover, the Eleventh Circuit has observed that, whenever there is "substantial doubt about a question of state law upon which a case turns, " the issue "should be resolved by certifying the question to the state supreme court. Resolution in this way avoids the unnecessary practice of guessing the outcome under state law and offers the state court an opportunity to explicate state law." Jones v. Dillard's, Inc., 331 F.3d 1259, 1268 (11th Cir. 2003) (citations omitted); see also, e.g., Sultenfuss v. Snow, 35 F.3d 1494, 1504 (11th Cir. 1994) ( en banc ) (Carnes, J., dissenting) ("Only through certification can federal courts [obtain] definitive answers to unsettled state law questions. Only a state supreme court can provide what we can be assured are correct' answers to state law questions, because a state's highest court is the one true and final arbiter of state law.") (alteration supplied).
For all of the foregoing reasons, this court concludes that it is advisable to certify to the Alabama Supreme Court the question of the scope of duty owed by premises owners to non-employees for hazards created at the workplace, and the question of the appropriate causation standard when a plaintiff's injury is the result of multiple exposures to a toxic agent, such as asbestos. There are no clear, controlling precedents in the decisions of the Alabama Supreme Court on these issues, and their significance extends beyond the present case.
I. CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA PURSUANT TO ARTICLE VI, § 6.02(b)(3) OF THE ALABAMA CONSTITUTION OF 1901, AND RULE 18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE
TO THE SUPREME COURT OF THE STATE OF ALABAMA AND THE HONORABLE JUSTICES THEREOF:
In order to assist the Justices of the Alabama Supreme Court in their consideration of the certified questions, and in accordance with Alabama Rule of Appellate Procedure 18,  the following post-trial findings of fact are provided.
A. Barbara Bobo
Barbara Wear Bobo was born on March 3, 1942, and lived with her father, Clifton Wear, on the family farm until she married James "Neal" Bobo on September 28, 1964. The couple purchased a home in Florence, Alabama, in 1965. James Bobo died on September 7, 1997,  from lung cancer induced by asbestosis - "a form of pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos, " and "associated with pleural mesothelioma." Mrs. Bobo did not remarry following the death of her husband, and continued to live in the same home she had shared with Mr. Bobo until her own death. She was diagnosed with malignant pleural mesothelioma in November of 2011, and died as a result of that disease on September 7, 2013,  the sixteenth anniversary of her husband's death. She then was 71 years of age.
The Tennessee Valley Authority ("TVA" or "the Authority") is a constitutionally authorized instrumentality of the United States created pursuant to the Tennessee Valley Authority Act of 1933, 16 U.S.C. § 831 et seq. ("the TVA Act"), which broadly charges the Authority with the accomplishment of several important missions, including: improving navigability on the Tennessee River and any of its tributaries; flood control; reforestation; improvement of marginal lands; and agricultural and industrial development of the region served by TVA,  an area that was particularly affected by the Great Depression, and which covers most of Tennessee, portions of Alabama, Mississippi, and Kentucky, and small slices of Georgia, North Carolina, and Virginia.
To assist in the accomplishment of its Congressionally-mandated purposes, the TVA Act specifically authorizes the Authority "to acquire real estate for the construction of dams, reservoirs, transmission lines, power houses, and other structures, and navigation projects at any point along the Tennessee River, or any of its tributaries, " and "[t]o produce, distribute, and sell electric power." All real property acquired by TVA for the purpose of accomplishing its statutory purposes is held "in the name of the United States of America, " and is "entrusted to [TVA] as the agent of the United States to accomplish the purposes of the [TVA Act]."
The Browns Ferry Nuclear Plant located on the North shore of the Tennessee River near Athens, in Limestone County, Alabama, is one of the properties owned by the United States and entrusted to TVA for management and operational control. The Browns Ferry facility was the Authority's first nuclear power plant, and the largest in the world when it began operation in 1974. It also was the first nuclear plant in the world to generate more than one billion watts of power. The plant's three operating units are General Electric boiling water reactors. They produce electricity by splitting uranium atoms, and the heat generated by that process boils water, producing steam that is piped to turbines, which spin generators to produce electricity.
C. James Bobo's Employment History and Exposure to Asbestos
Barbara Bobo's husband, James "Neal" Bobo, was employed as a machine operator at the Alabama Wire Plant in Florence, Alabama for about ten years between 1965 and April 15, 1975, the date on which he was hired by TVA. During that period, he was exposed to several products containing asbestos: e.g., Careytemp asbestos-containing pipe covering, insulating cement, and block insulation; GAF Building Materials Corporation asbestos-containing pipe covering, insulating cement, and block insulation; H.K. Porter asbestos-containing cloth; Kaiser Aluminum & Chemical Corporation asbestos-containing block insulation; Keene Corporation asbestos-containing pipe covering, insulating cement, and block insulation; and Raymark gaskets.
James Bobo was employed by TVA as either a temporary or annual employee for more than twenty-two years, from April 15, 1975 until September 7, 1997,  which also was the date of his death from lung cancer induced by asbestosis. He worked primarily in the Browns Ferry Nuclear Plant. Products and materials that contained asbestos fibers ( e.g., thermal pipe coverings, insulation, roofing cement, packing materials, and gasket packing materials) were present throughout that facility. Even so, there is no record of air monitoring measurements demonstrating either the fact of Mr. Bobo's exposure to airborne asbestos fibers during his TVA employment, or the extent of any such exposure in some measurable units.
While working for TVA, Mr. Bobo held at various times job positions classified as "laborer, " "dual rate laborer foreman, " and "laborer foreman." He never held jobs classified as either "asbestos worker" or "insulator." His duties while working as a laborer included, among other things, general clean-up work, tool decontamination, and packing and storing of radiological wastes. Moreover, Mr. Bobo was often directed to assist TVA employees who installed (or removed) insulation materials that were made from (or that contained) asbestos. Occasionally, he would assist the insulators in such work, but more often than not he was directed to clean up after the insulators had completed their duties by sweeping insulation residue that had fallen to the floor. The act of sweeping generated airborne "dust" containing asbestos fibers. Additionally, Mr. Bobo was often present when insulators mixed refractory cement that contained asbestos fibers: a process that also generated airborne contaminants.
Mr. Bobo worked at various times in parts of the nuclear facility that contained radiologically contaminated materials: areas that were referred to in this record as "C-Zones." Whenever Mr. Bobo did so, he was required to wear protective clothing and equipment to prevent or mitigate exposure to radiation. Whenever Mr. Bobo swept insulation residue that was not within a C-Zone, however, he wore only his personal clothing and no over-garment protective coverings,  even though such gear would have prevented airborne asbestos fibers from adhering to and contaminating his personal clothing. Mr. Bobo's clothes were always clean when he left for work in the morning, but usually "pretty dirty" when he returned home in the evening. Jimmy Myhan was a TVA employee at Browns Ferry from March 16, 1976 until October 1, 1993, except for a two-year time period between October 1978 and August 1980 when Myhan left TVA for other employment. Mr. Myhan testified that, during both periods that he and James Bobo worked together - i.e., 1976-78, and 1980 through the mid-to-late 1980s - Mr. Bobo worked at least once each week in a C-Zone, but at all other times he worked in one of the three units of the Nuclear Plant where he cleaned up white pipe insulation. Mr. Myhan's description of the pipe insulation as "white" in color is significant, because heat-absorbing materials made from (or containing) asbestos fibers generally are "white" in color. For example, Frank Mecke testified that the contractor he worked for during construction of the Browns Ferry facility ("Shook & Fletcher") installed all insulation in the Unit 1 reactor,  and that insulating materials made from (or containing) asbestos fibers were white in color. In like manner, Steven Brown, Director of Maintenance at the Browns Ferry Nuclear Plant, testified that all asbestos insulation removed during abatement procedures was white in color, and that he encountered asbestos insulation throughout the nuclear plant on a daily basis. Indeed, TVA's own documentation confirms that asbestos insulation was used pervasively throughout the Browns Ferry facility, including the three reactor units in which Mr. Bobo worked.
A list of TVA employee fatalities shows that, in 1977, a labor foreman (a job position sometimes held by Mr. Bobo) died of asbestosis, and an electrician foreman died of mesothelioma. A 1978 internal memo notes that an evaluation of the Browns Ferry insulator shop revealed that the atmosphere in the shop contained airborne asbestos fibers.
A 1979 evaluation of TVA facilities by the Occupational Safety and Health Administration noted that "asbestos exposure at numerous power plants" was one of "[a] number of recognized and documented hazards within TVA [that] have been known to exist for years [but which] still [had] not [been] abated."
A 1980 draft of TVA's "Hazard Control Standard 407" for Asbestos allowed the purchase of asbestos insulation if no suitable substitute existed. It also required non-asbestos materials to be designated as such, and required warning signs to be posted in areas where airborne asbestos fiber concentrations might exceed the permissible exposure level.
A 1988 "Asbestos Control Program Review Report" stated that "all insulation (usually gray) is [to be] treated as asbestos unless bulk sample analysis indicates otherwise, " and noted that "insulation containing asbestos was sometimes substituted in some areas being insulated with asbestos-free insulation during construction."
Even though air monitoring measurements were usually obtained after wet methods had eliminated most of the airborne dust, elevated levels of asbestos fibers still were detected in every reactor unit of the plant. Moreover, even though non-asbestos "mineral wool" was sometimes used during construction of the Browns Ferry Plant, it was covered (encased) with asbestos mud and asbestos cloth.
The preponderance of the evidence presented at trial established that a significant quantity of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue in the non-C-Zone areas of Browns Ferry.
D. Barbara Bobo's Exposures to Asbestos Originating in Sources Other Than TVA's Browns Ferry Nuclear Plant
Although Barbara Bobo, like many Americans over the age of sixty, probably was exposed to products containing some amount of asbestos at various times throughout her life,  plaintiffs' counsel admitted that she experienced non-occupational exposures to asbestos during the eleven-year period that her husband was employed as a machine operator at the Alabama Wire Plant through laundering his work clothes and traveling in the family car. Her exposures during that period, however, occurred 35 to 45 years before the date on which she was diagnosed as suffering from malignant pleural mesothelioma.
In addition, Mrs. Bobo worked as a beautician for various employers from approximately 1976 through 1983, when she opened her own beauty salon in a building adjacent to the home she and James Bobo shared. From then until 2011, she worked as a self-employed beautician under the trade name of "Barbara's Beauty Shop." During the thirty-five or so years that Mrs. Bobo was employed as a beautician, she generally worked five and a half days each week, with a typical work day of eight hours. Mrs. Bobo used stationary hair driers on her patrons 25 to 30 times each day, and she inhaled dust particles while doing so. She also cleaned hair dryer filters on a monthly basis: a maintenance procedure that involved removing, cleaning, and reinserting the filters. Mrs. Bobo also inhaled dust while performing that task.
E. Barbara Bobo's Exposures to Asbestos Originating in TVA's Browns Ferry Nuclear Plant
Plaintiffs contend that their deceased mother's exposure to airborne asbestos fibers from those sources sketched in the preceding section was not significant in comparison to the quantity to which she was subjected through her practice of laundering her husband's work clothes over the course of the twenty-two years that he was employed by TVA. The washroom located in the center of the Bobo home was small: its floor dimensions were only about four feet by five feet (20 square feet). Mrs. Bobo washed her husband's clothes twice each week, but her daily practice was to pick-up the dirty clothing that he had removed at the end of the preceding work day, carry those articles into the washroom, shut the door, empty the pockets, shake the clothing to remove loose dirt particles, and place the items into the washing machine. Mrs. Bobo recalled inhaling "dust" while performing those actions: that is, she described the atmosphere of the laundry room as "[f]oggy, " but said that she "just thought it was dust." She also dry-swept the washroom floor with a small broom and dustpan prior to mopping it, and said that the air became dusty when doing so. Mrs. Bobo had no knowledge that the "dust" on her husband's work clothing or the floor of her washroom contained asbestos fibers, and her home was never tested for the presence of that substance.
Dr. Eugene Mark, plaintiffs' expert, reviewed depositions, medical records, and other file materials, and testified that Mrs. Bobo was exposed to asbestos by laundering her husband's clothes twice each week for more than twenty-two years. He also testified that studies in scientific literature that are generally accepted as authoritative in the field link mesothelioma to asbestos exposure from laundering the clothes of a person who works with asbestos. One study relied upon by Dr. Mark (an article by Gunnar Hillerdal entitled "Mesothelioma Cases Associated with Non-Occupational and Low-Dose Exposures") reported that asbestos fiber concentrations in domestic exposure cases might be as high as in occupation exposure cases. The same study reported that "[o]rdinary vacuum cleaning is not effective in removing asbestos fibers, which can remain for years in the house and be airborne again whenever disturbed. Thus, domestic exposure is not low exposure." Dr. Mark concluded, based upon his review of case materials, that Mrs. Bobo's exposure to asbestos from her husband's work at TVA was a substantial factor contributing to the development of her mesothelioma.
F. The Application of Regulations Promulgated by the Occupational Safety and Health Administration to TVA's Operations
The Occupational Safety and Health Act of 1970 ("the OSH Act") required "the head of each Federal agency... to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 665" of the Act. 29 U.S.C. § 668(a). Executive Order 11, 612, promulgated in 1971, observed that, "[a]s the Nation's largest employer, the Federal Government has a special obligation to set an example for safe and healthful employment." 36 Fed. Reg. 13, 891 (July 26, 1971) (alteration supplied). For that reason, the order required the head of each federal department and agency to "establish an occupational safety and health program... in compliance with the requirements of... section 19(a) of [the OSH Act], " and the programs were required to "be consistent with the standards prescribed by section 6 of [the OSH Act], " now codified at 29 U.S.C. 668. Id. (alterations supplied).
Yet another Executive Order issued three years later recognized that "even greater efforts" were needed in order to establish occupational safety and health programs that were consistent with the standards prescribed by Section 6 of the OSH Act. Executive Order No. 11, 807, recorded at 39 Fed. Reg. 35, 559 (Sept. 28, 1974) (alteration supplied). Thus, this 1974 Executive Order was designed to provide additional guidance to ensure effective occupational safety and health programs within ...