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Bobo v. Tennessee Valley Authority

United States Court of Appeals, Eleventh Circuit

April 26, 2017

BARBARA BOBO, et al., Plaintiffs,
v.
TENNESSEE VALLEY AUTHORITY, Defendant-Appellant. MELISSA ANN BOBO, co-personal representative of the Estate of Barbara Bobo, deceased, SHANNON JEAN COX, Plaintiffs-Appellees,

         Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:12-cv-01930-CLS

          Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, [*] District Judge.

          ED CARNES, Chief Judge:

         In return for the loan of life, we each owe God a death.[1] Payment in full is a non-negotiable term of the debt, but the timing and circumstances in which remittance is made varies. The question that lies at the bottom of this case is whether the Tennessee Valley Authority caused Barbara Bobo to die sooner and suffer more in the course of dying than she otherwise would have. The legal issues are more complicated, as legal issues often are, but that question is what the case is about, why it is here.

         Barbara Bobo's husband, James "Neal" Bobo, worked for the TVA for more than twenty-two years.[2] While at TVA, he was diagnosed with asbestos-induced lung cancer and in 1997 died from a heart attack. Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011. She underwent thoracentesis, in which a long needle was used to remove two liters of fluid from the space between the lining of the outside of her lungs and the wall of her chest. She also underwent multiple rounds of chemotherapy, which she referred to as the "Red Devil, " because of the side effects she experienced from it - side effects which included, among other things, pain when drinking fluids and also spitting up raw flesh. In June 2012 her doctor performed a pleurectomy on Mrs. Bobo, removing one of her ribs and the pleural lining of one of her lungs.

         She died from mesothelioma in 2013. Before she died, she filed a lawsuit claiming that TVA's negligence resulted in her being exposed to "take-home" asbestos when she washed her husband's work clothes over the years. After a three-day bench trial, the district court entered judgment against TVA. This is TVA's appeal.

         I.

         We incorporate by reference the facts of this case that are set out in the district court's thorough and well-reasoned opinion, Bobo v. Tennessee Valley Authority, 138 F.Supp.3d 1285 (N.D. Ala. 2015), although for the reader's convenience, we will repeat some of the more significant facts here. From 1975 until 1997, Mr. Bobo worked as a laborer and labor foreman for TVA, primarily at its Browns Ferry Nuclear Plant in Athens, Alabama. His duties included sweeping up insulation residue, which generated dust that would settle onto his clothing. Most of that insulation was white. At times Mr. Bobo worked in a radiologically contaminated area, referred to as a "C-Zone, " where he was required to wear protective clothing. Other times he worked in his own clothes, which typically were clean when he left for work but dirty and dusty when he returned home.

         One of Mr. Bobo's co-workers testified that Mr. Bobo often cleaned up white pipe insulation, and one contractor who installed insulation at Browns Ferry testified that the insulation contained asbestos, and that most of the asbestos insulation was white. A TVA maintenance director also testified that all of the asbestos insulation that was removed from Browns Ferry during TVA's asbestos abatement procedures was white. Based on the witnesses' testimony, along with TVA documents confirming that asbestos products were used throughout the plant, the district court found that the "preponderance of the evidence . . . 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" at Browns Ferry.

         During the twenty-two years her husband worked for TVA, Mrs. Bobo washed his work clothes twice each week, an estimated two thousand times in all.[3]Before putting those clothes in the washing machine, she would shake the dust off of them. She testified in her deposition that there was so much dust when she shook out the clothes the laundry room would appear "foggy."[4] She would inhale some of that dust. Based on her testimony and other evidence, the district court found that Mr. Bobo's work clothes were covered with asbestos fibers and that it was "more likely than not that [she] unknowingly inhaled dangerous concentrations of asbestos fibers as she 'shook out'" his work clothes.

         Before and then during the time of Mr. Bobo's employment at TVA (from 1975 to 1997), the Occupational Safety and Health Administration (OSHA) issued federal regulations, and TVA established internal procedures addressing asbestos exposure. The Occupational Safety and Health Act of 1970 required federal agencies like TVA to establish and maintain occupational health and safety programs consistent with OSHA's standards. See 29 U.S.C. § 668(a).[5] In the years following the enactment of that law, OSHA began issuing regulations to minimize asbestos exposure that included maximum exposure limits, monitoring and testing procedures, and safety protocols. One regulation required employers to provide employees who would be exposed to asbestos above permissible limits with protective clothing, changing rooms, and separate lockers in order to prevent their work clothes from contaminating their "street clothes." The same regulation also required employers like TVA to launder asbestos-contaminated clothing in a way that would "prevent the release of airborne asbestos fibers in excess of the exposure limits." OSHA's asbestos regulations became more stringent over time.

         TVA adopted internal policies similar to the OSHA regulations. For example, in 1978 TVA's Nuclear Power Division adopted a safety manual which, among other things, required that employees exposed to airborne concentrations of asbestos be provided with two separate lockers. It mandated that: "One locker shall be used for street clothes and must not be contaminated with asbestos." Browns Ferry Standard Practice 14.45 also provided that "[e]mployees exposed to airborne concentrations of asbestos shall wear an approved respirator and protective overalls . . . ." The district court found that this requirement applied "to any quantity of asbestos exposure" because it was not explicitly confined to "concentrations of asbestos dust in excess of the permissible limits, " as other requirements in Standard Practice 14.45 were. The court also found that, in violation of the company's own mandatory directives, "TVA did not provide laborers with protective clothing, separate lockers, or separate showers, unless they worked in a C-Zone."

         II.

         After Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011, she sued TVA and eight other defendants in federal court, alleging take-home asbestos exposure caused her illness. She brought claims based on, among other things, strict liability, premises liability, negligence, breach of warranty, and conspiracy. At various points in the proceedings, Mrs. Bobo stipulated to the dismissal of her claims against the eight other defendants. The case ultimately proceeded to trial against TVA on her negligence claim.

         After Mrs. Bobo died from mesothelioma in 2013, the court substituted her two daughters, who are serving as personal representatives of her estate, as plaintiffs. Following a three-day bench trial, the court held TVA liable based on three analytical steps. First, it concluded that, under Alabama law, TVA owed Mrs. Bobo a duty of care to prevent take-home asbestos exposure because, among other reasons, the risk of harm was reasonably foreseeable. Second, the court found that TVA breached that duty by failing to enforce mandatory safety protocols that were designed to prevent asbestos from leaving Browns Ferry. Third, it concluded that exposure to asbestos attributable to TVA was a "substantial factor" that contributed to Mrs. Bobo's development of mesothelioma.

         The district court initially awarded the plaintiffs damages of $3, 000, 000 for pain and suffering, plus $547, 008.93 in medical expenses, less an offset of $136, 176.37, for a total amount of $3, 410, 832.56. The court later amended the judgment in light of post-trial settlements, which resulted in a final total damages award of $3, 391, 420.31.

         III.

         TVA challenges the district court's judgment on multiple grounds. To begin with, it contends that the district court erred in two respects regarding the evidence used to support the findings in favor of Mrs. Bobo. TVA argues that the district court should not have considered Mr. Bobo's state court deposition because it was not part of the record of this federal trial. TVA also argues that the court abused its discretion in relying on expert testimony the plaintiffs offered to support a finding that exposure to asbestos was the proximate cause of Mrs. Bobo's mesothelioma.

         A.

         We start with TVA's argument that the district court erred in considering the state court deposition testimony of Mr. Bobo to support its finding that he had been exposed to asbestos while employed by TVA. The court had ruled before trial that deposition testimony was inadmissible but then considered that testimony at trial. Assuming that was an abuse of discretion, see, e.g., United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006), it was harmless because there was plenty of other evidence proving the same fact.

         At his deposition, Mr. Bobo testified about his exposure to asbestos. He explained that he was directed to assist employees who installed insulation materials made from (or that contained) asbestos fibers; that he was directed to sweep up insulation residue, which generated airborne dust containing asbestos fibers; and that he was present when insulators mixed refractory cement, a process which generated asbestos fibers.

         TVA admitted that "asbestos-containing materials present at [Browns Ferry] at the commencement of [Mr. Bobo's] TVA work period were purchased prior to [his] TVA work period and that additional asbestos-containing materials for use at [Browns Ferry] were purchased between 1975 and 1980, " which were five of the years he worked there. A number of witnesses testified that white asbestos insulation was used at the Browns Ferry plant, and a co-worker of his testified that Mr. Bobo routinely swept up white insulation residue. TVA's 1967 safety manual stated that the "[d]usts most likely to be encountered" included asbestos, and that asbestos "[e]xposures occur during application and removal of insulation." Because Mr. Bobo's state court deposition testimony was simply cumulative of abundant evidence that was admitted, the district court's consideration of it was harmless. See L & C Marine Transp., Ltd. v. Ward, 755 F.2d 1457, 1463 (11th Cir. 1985). Put somewhat differently, based on the evidence that was properly considered, the district court did not err in finding that, more likely than not, Mr. Bobo had been exposed to asbestos at Browns Ferry.

         B.

         TVA next argues that the district court erred in admitting the testimony of Dr. Eugene Mark, the plaintiffs' expert, who testified about the proximate cause of Mrs. Bobo's illness. TVA asserts that his opinion was unreliable. We review only for abuse of discretion a district court's rulings regarding the admissibility of expert testimony and the reliability of an expert opinion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004).

         TVA mischaracterizes Dr. Mark's opinion as essentially that "any exposure" to asbestos is a substantial factor in causing mesothelioma, which it says makes his opinion scientifically unreliable. That is not what he said. He testified there is no evidence that there is a threshold level of exposure below which there is zero risk of mesothelioma, and that all "significant" exposures to asbestos "contribute to cause mesothelioma." But he also stated that he would not consider an isolated exposure to a single fiber of asbestos to be "special" or "significant."

         Dr. Mark testified about the significance of the "dose-response relationship" and explained the difficulty with quantifying exposure in asbestos cases. He talked about the problem with quantifying the exact moment when an exposure becomes "significant, " explaining that: "[Y]ou cannot talk about one fiber, you cannot talk about one minute of exposure because the minutes add up. And a person who has a job for 20 years, it doesn't prove useful to talk about the exposure last May 1st." While Dr. Mark testified that all significant exposures to asbestos contribute to causing mesothelioma, he did not say that any exposure to asbestos is a substantial factor in causing mesothelioma, or even that every significant exposure causes it. Our predecessor court accepted similar expert testimony as reliable. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1083 (5th Cir. ...


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