Bobo v. AGCO Corporation et al

Filing 218

MEMORANDUM OPINION the court finds in favor of plaintiffs; a Judgment consistent with this memorandum of opinion will be entered contemporaneously herewith. Signed by Judge C Lynwood Smith, Jr on 9/29/2015. (AHI)

FILED
2015 Sep-29 AM 10:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MELISSA ANN BOBO and
SHANNON JEAN COX, as
Co-Personal Representatives of the
Estate of Barbara Bobo, deceased,
Plaintiffs,
vs.
TENNESSEE VALLEY
AUTHORITY,
Defendant.

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Civil Action No. CV 12-S-1930-NE

MEMORANDUM OPINION
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 airborne asbestos fibers,
“an inherently dangerous toxic substance.”1 She alleged that the fibers came from the
Browns Ferry Nuclear Plant operated by the Tennessee Valley Authority (“TVA”) on
the north shore of the Tennessee River near Athens, in Limestone County, Alabama.
Mrs. Bobo, however, had never been inside the Browns Ferry Nuclear Plant. In fact,
she had never worked for TVA in any capacity. Instead, her claims were derivative:
they grew out of her practice of laundering the asbestos-laden work clothes worn by
1

Doc. no. 1 (Complaint), ¶ 12; doc. no. 171 (Amended Complaint), ¶ 12.

her husband, James Bobo, every week during the twenty-two years that he was
employed by TVA as a laborer at its Browns Ferry Nuclear Plant.2 Such allegations
are typical of so-called “secondary exposure,” or “take-home exposure” claims, as
distinguished from “direct exposure” claims.3
I. JURISDICTION
Mrs. Bobo’s original complaint asserted claims against TVA and eight other
defendants, seven of which had developed, manufactured, marketed, distributed, or
sold asbestos-containing products,4 and one, the Metropolitan Life Insurance
2

See doc. no. 171 (Amended Complaint), ¶ 12(a) (alleging that Barbara Bobo’s husband was
employed by TVA “from 1975-1997”); doc. no. 174 (Memorandum Opinion and Order), at 3
(observing that the amended complaint expanded the amount of time during which plaintiff alleges
that she was exposed to airborne asbestos fibers brought into her home on the person and clothing
of her husband, a former TVA employee, from ten to twenty-two years: “that is, from 1975 to 1997,
as opposed to the period of 1975 to 1985 alleged in the original complaint”).
3

In the typical “direct exposure” case, a plaintiff who works with or around products
containing asbestos alleges that manipulation of the products caused asbestos fibers to become
airborne and inhaled; and, that, following a long latency period, the ingested fibers caused an
aggressive form of cancer called mesothelioma. In contrast, the plaintiff in a “secondary,” or “takehome,” exposure case does not personally work with or around asbestos-containing products.
Instead, such plaintiffs typically are family members like Mrs. Bobo, who wash the clothes of the
laborer in direct contact with the asbestos-containing products. (Such cases sometimes are referred
to as “bystander exposure” claims.)
4

The seven defendants that developed, manufactured, marketed, distributed, or sold asbestoscontaining products were: (i) Agco Corporation, formerly known as Allis Calmers Company, and
sued as successor to Massey Ferguson Limited (“Agco”) (doc. no. 1 (Complaint), ¶ 3); (ii) CBS
Corporation, formerly known as Viacom, Inc., and sued as the successor-by-merger to CBS
Corporation, formerly known as Westinghouse Electric Corporation (“CBS”) (id. ¶ 4); (iii) Conopco,
Inc., doing business as Unilever United States, Inc., and sued both individually, and, as successorby-merger to Helene Curtis Industries, Inc. (“Conopco”) (id. ¶ 5); (iv) Consolidated Aluminum
Corporation, also known as Conlaco, Inc. (“Consolidated Aluminum”) (id. ¶ 6); (v) Dana Companies
LLC, sued both individually, and, as successor-in-interest to Victor Gasket Manufacturing Company
(“Dana”) (id. ¶ 7); (vi) Ford Motor Company (“Ford”) (id. ¶ 8); and (vii) Unilever United States, Inc.,

2

Company, that allegedly had “conspired with other asbestos suppliers and product
manufacturers to mislead the public as to the hazards of asbestos.”5 Mrs. Bobo was
a resident of the State of Alabama on the date this action was commenced, and the
defendants other than TVA were corporate citizens of states other than Alabama.
Apparently for that reason, Mrs. Bobo’s attorneys premised jurisdiction on the
diversity statute, 28 U.S.C. § 1332.6 Mrs. Bobo’s claims against the eight, non-TVA
defendants were dismissed at various stages of these proceedings pursuant to
stipulations for dismissal,7 thus leaving TVA as the only defendant. TVA’s status as
a wholly-owned corporate agency and instrumentality of the United States created
pursuant to an act of Congress8 places subject matter jurisdiction under the federal
question statute, 28 U.S.C. § 1331, as opposed to the diversity statute. See, e.g.,
sued both individually, and, as successor-by-merger to Helene Curtis Industries, Inc. (“Unilever”)
(id. ¶ 11).
5

Doc. no. 1 (Complaint), ¶ 9.

6

See id. ¶¶ 18-20; see also doc. no. 171 (Amended Complaint) ¶¶ 18-20.

7

The following defendants were dismissed in accordance with stipulations of dismissal filed
by Mrs. Bobo and the defendants noted: doc. no. 18 (Ford); doc. no. 19 (Order Dismissing Ford);
doc. no. 44 (AGCO); doc. no. 45 (Order Dismissing AGCO); doc. no. 47 (Conopco and Unilever);
doc. no. 48 (Order Dismissing Conopco and Unilever); doc. no. 53 (Consolidated Aluminum); doc.
no. 56 (Order Dismissing Consolidated Aluminum); doc. no. 60 (CBS); doc. no. 61 (Order
Dismissing CBS); doc. no. 62 (Dana Companies); doc. no. 64 (Order Dismissing Dana Companies);
doc. no. 78 (MetLife); doc. no. 79 (Order Dismissing MetLife).
8

See 16 U.S.C. § 831 (creating “a body corporate by the name of the ‘Tennessee Valley
Authority’”); § 831r (referring to TVA as “an instrumentality and agency of the Government of the
United States for the purpose of executing its constitutional powers”). See also, e.g., United States
ex rel TVA v. An Easement & Right-of-Way Over Two Tracts of Land, 246 F. Supp. 263, 269 (W.D.
Ky. 1965) (observing that TVA “is a wholly owned corporate agency and instrumentality of the
United States”) (citations omitted), aff’d, 375 F.2d 120 (6th Cir. 1967).

3

Union Pacific Railroad Co. v. Myers, 115 U.S. 1, 11 (1885) (the so-called “Pacific
Railroad Removal Case,” holding that a suit by or against a corporation of the United
States is a ground for federal question jurisdiction); Government National Mortgage
Association v. Terry, 608 F.2d 614, 620-21 & n.10 (5th Cir. 1979) (same);9 Jackson
v. Tennessee Valley Authority, 462 F. Supp. 45, 50-51 (M.D. Tenn. 1979) (“The
courts have consistently relied upon the Pacific Railroad decision in finding
jurisdiction over tort actions against TVA under sections 1331 and 1337”) (citations
omitted); Monsanto Co. v. Tennessee Valley Authority, 448 F. Supp. 648, 651 (N.D.
Ala. 1978) (observing that “the precedents going back over a hundred and fifty years
establish that any claim, even one created by state law,[10] against a federally created
corporation arises under federal law”) (emphasis and footnote supplied, citations
9

The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981, in Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
10

With regard to the statement that any claim, “even one created by state law,” that is
asserted against a federally-created corporation “arises under federal law,” see 16 U.S.C. § 831c-2,
providing that:
An action against the Tennessee Valley Authority for injury or loss of
property, or personal injury or death arising or resulting from the negligent or
wrongful act or omission of any employee of the Tennessee Valley Authority while
acting within the scope of this office or employment is exlusive [sic] of any other
civil action or proceeding by reason of the same subject matter against the employee
or his estate whose act or omission gave rise to the claim. Any other civil action or
proceeding arising out of or relating to the same subject matter against the employee
or his estate is precluded without regard to when the act or omission occurred.
16 U.S.C. § 831c-2(a)(1).

4

omitted).
II. PROCEDURAL HISTORY
Mrs. Bobo died about fifteen months after filing suit,11 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.12 A timely motion to substitute Melissa Ann Bobo and
Shannon Jean Cox as plaintiffs was granted pursuant to Federal Rule of Civil
Procedure 25(a)(1).13
Following denial of TVA’s motions for summary judgment,14 the case
proceeded to a bench trial15 on plaintiffs’ claims that their mother had contracted
malignant plural mesothelioma as a result of TVA’s negligence that allowed her to
11

See, e.g., doc. no. 201 (Agreed and Stipulated Facts), ¶ 10.

12

See Ala. Code § 6-5-462 (1975) (“In all proceedings not of an equitable nature, all claims
upon which an action has been filed and all claims upon which no action has been filed on a contract,
express or implied, and all personal claims upon which an action has been filed, except for injuries
to the reputation, survive in favor of and against personal representatives; and all personal claims
upon which no action has been filed survive against the personal representative of a deceased
tort-feasor.”); doc. no. 178-1 (Letters Testamentary, In re Estate of Barbara J. Bobo, Case No.
20091, Probate Court for Lauderdale County, Alabama).
13

See doc. no. 178 (Motion to Substitute Party), and doc. no. 179 (Order Granting Motion
to Substitute Party).
14

See doc. no. 69 (TVA’s Motion for Summary Judgment on Discretionary Function
Grounds), granted in part and denied in part by doc. no. 174 (Memorandum Opinion and Order);
see also doc. no. 122 (TVA’s Motion for Summary Judgment), denied by doc. no. 187
(Memorandum Opinion and Order).
15

See doc. no. 65 (TVA’s Motion to Dismiss Punitive Damages Claims and to Strike Jury
Demand), granted by doc. no. 75 (Memorandum Opinion and Order).

5

be exposed to a large quantity of asbestos fibers while laundering the work clothing
of her husband each week throughout the years he worked at TVA’s Browns Ferry
Nuclear Plant.16 Upon consideration of the parties’ pleadings, pre-trial evidentiary
submissions, trial testimony and exhibits, briefs, arguments of counsel, and
independent research, the court makes the following findings of fact and enters
conclusions of law.
III. FINDINGS OF FACT
Plaintiffs’ decedent, Barbara Wear Bobo, was born on March 3, 1942, and
lived with her father, Clifton Wear, on the family farm until she married James Bobo
on September 28, 1964.17 They purchased a home in Florence, Alabama the
following year,18 and lived together as husband and wife until Mr. Bobo died on

16

See doc. no. 191 (Pretrial Order), ¶ 5(b), at 5-6. See also doc. no. 174 (Memorandum
Opinion and Order Denying TVA’s Motion for Summary Judgment), at 56 (permitting the case to
proceed on the claim that TVA was negligent in at least the following respects: (1) TVA violated
Occupation Safety and Health Administration regulations concerning permissible levels of asbestos
exposure; (2) TVA failed to follow mandatory directives governing the monitoring of an employee’s
exposure to asbestos; (3) TVA failed to provide employees who were exposed to airborne asbestos
fibers protective clothing and equipment, as well as separate locker rooms and shower facilities; and
(4) TVA failed to administer annual medical examinations to employees exposed to airborne
asbestos fibers).
17

Doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 11; doc. no. 201 (Agreed and
Stipulated Facts), ¶¶ 5, 12(b). James Bobo sometimes was referred to during his lifetime and
pleadings in this case as “Neal Bobo.”
18

Doc. no. 123 (Barbara Bobo’s May 30, 2013 Deposition), at 16; doc. no. 201 (Agreed and
Stipulated Facts), ¶ 6.

6

September 7, 1997,19 from lung cancer induced by asbestosis:20

“a form of

pneumoconiosis (silicatosis) caused by inhaling fibers of asbestos” and “associated
with pleural mesothelioma.”21
Mrs. Bobo did not remarry and continued to reside in the marital home until her
own death.22 She was diagnosed with malignant pleural mesothelioma in November
of 2011, and died as a result of that disease nearly two years later, on September 7,
2013.23 She was seventy-one years of age.24
Defendant, 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 the navigability of the Tennessee River and

19

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 9.

20

See doc. no. 145-3 (James Bobo Deposition) at 59, 70-71; Trial Transcript, Day 1, at 181

(ll 9-14).
21

Dorland’s Illustrated Medical Dictionary 161 (30th ed. 2003) (The entire definition of
asbestosis reads as follows: “a form of pneumoconiosis (silicatosis) caused by inhaling fibers of
asbestos, marked by interstitial fibrosis of the lung varying in extent from minor involvement of the
basal areas to extensive scarring; it is associated with pleural mesothelioma and bronchogenic
carcinoma”).
22

See doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 16-17, 29-30; doc. no.
201 (Agreed and Stipulated Facts), ¶¶ 9-10.
23

Doc. no. 178 (Motion to Substitute Party); doc. no. 179 (Order Granting Motion to
Substitute Party); doc. no. 201 (Agreed and Stipulated Facts), ¶ 10.
24

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 67.

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its tributaries; flood control; improvement of marginal lands; reclamation of lands
ravaged by erosion; reforestation; and agricultural and industrial development of the
region served by TVA — an area of the nation 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.25

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,”26 and “[t]o produce, distribute, and sell electric power.”27 All real
property acquired by TVA is held “in the name of the United States of America,” and
is “entrusted to the [Authority] as the agent of the United States to accomplish the
purposes of the [TVA Act].”28
The land upon which the Browns Ferry Nuclear Plant was constructed is among
the real estate owned by the United States and entrusted to TVA for management and
25

See 16 U.S.C. § 831n and § 831n-4. See also, e.g., doc. no. 201 (Agreed and Stipulated
Facts), ¶ 12.
26

16 U.S.C. § 831c(i).

27

16 U.S.C. § 831d(l) (alteration supplied). See also 16 U.S.C.A. § 831h-1; doc. no. 201
(Agreed and Stipulated Facts), ¶ 13.
28

16 U.S.C. § 831c(h) (alterations supplied). See also doc. no. 201 (Agreed and Stipulated
Facts), ¶ 14.

8

operational control.29 The Browns Ferry facility was the Authority’s first nuclear
power plant and, when it began operation in 1974, the largest in the world. It also
was the first nuclear plant to generate more than one billion watts of electric power.30
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, thereby producing steam that is piped to turbines, which in turn spin
generators to produce electricity.31
A.

Asbestos
The Toxic Substances Control Act of 1976, 15 U.S.C. § 2641 et seq., defines

asbestos as the asbestiform varieties of chrysotile (serpentine), crocidolite
(riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite, or
actinolite. 15 U.S.C. § 2642(3)(A)–(F). “Asbestiform” is a mineralogical term

29

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 15; doc. no. 31 (TVA Answer), ¶ 10.

30

TVA intended to construct seventeen nuclear reactors during the 1950s and ‘60s, but
completed only five. The plans for the Browns Ferry facility were approved by the Nuclear
Regulatory Commission on June 17, 1966; construction began in September of that year; and the
plant became operational in 1974. See, e.g., https://www.tva.gov/Energy/Our-Power-System/Nuclear/Browns-Ferry-Nuclear-Plant (last visited Sept. 29, 2015). As of the date of this opinion, TVA
operated six nuclear reactor units at three sites: three at Browns Ferry; two at the Sequoyah Plant
in Soddy-Daisy, Tenn.; and one at the Watts Bar Plant near Spring City, Tenn. (a second unit is
under construction). Together, those plants contribute about 6,600 megawatts of electricity to the
power grid, and generate about 30% of TVA’s power supply. Those plants alone make enough
electricity to power more than three million homes in the Tennessee Valley, thereby making the
“Nuclear Power Group” an integral part of TVA’s seven-state power system.
See
http://www.tva.com/power/nuclear/index.htm (last visited Sept. 29, 2015).
31

See, e.g., http://www.tva.gov/sites/brownsferry.htm (last visited Sept. 23, 2015).

9

meaning that the fibers are long, thin, and possess high tensile strength.32 Asbestos
fibers are flexible, and can be woven together. They also are resistant to heat and
most chemicals. “Because of these properties, asbestos fibers have been used in a
wide range of manufactured goods, including roofing shingles, ceiling and floor tiles,
paper and cement products, textiles, coatings, and friction products such as
automobile clutch, brake and transmission parts.”33 The use most relevant to the
issues of this case was the installation or replacement of insulation materials
wrapping the boilers, pipes, and other equipment involved in the transfer of hightemperature steam to the turbines driving TVA’s electrical generating equipment.
B.

James Bobo’s Pre-TVA Employment and Exposure to Asbestos
Barbara Bobo’s husband James was employed as a machine operator at the

“Alabama Wire” plant in Florence, Alabama for about ten years, from 1965 until
April 15, 1975, when he was hired by TVA.34 During that period, he was exposed to
airborne asbestos fibers that emanated from such products as: Careytemp pipe
covering, insulating cement, and block insulation;35 GAF Building Materials

32

See https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=PREAMBLES
&p_id=785 (last visited Sept. 17, 2015).
33

http://www.epa.gov/superfund/asbestos/compendium/basic_information.html.

34

Doc. no. 123 (Barbara Bobo’s May 30, 2013 Deposition), at 52-70.

35

Doc. no. 123-2 (Barbara Bobo Declaration in Support of Exposure to Celotex Corporation
Asbestos-Containing Products), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts), ¶¶ 16-17.

10

Corporation pipe covering, insulating cement, and block insulation;36 H.K. Porter
cloth;37 Kaiser Aluminum & Chemical Corporation block insulation;38 Keene
Corporation pipe covering, insulating cement, and block insulation;39 and Raymark
gaskets.40
C.

James Bobo’s TVA Employment and Exposure to Asbestos
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, 1997:41 the
day on which he died from lung cancer induced by asbestosis.42 He worked primarily
36

Doc. no. 123-3 (Barbara Bobo Declaration in Support of Exposure to GAF Building
Materials Corporation Asbestos Related Products), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts),
¶ 17.
37

Doc. no. 123-4 (Barbara Bobo Declaration in Support of Exposure to H.K. Porter Asbestos
Related Products), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts), ¶ 17.
38

Doc. no. 123-5 (Barbara Bobo Declaration in Support of Exposure to Kaiser Aluminum
& Chemical Corporation Asbestos Related Products), ¶ 4; doc. no. 201 (Agreed and Stipulated
Facts), ¶ 17.
39

Doc. no. 123-6 (Barbara Bobo Declaration in Support of Exposure to Keene Corporation
Asbestos Related Products), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts), ¶ 17.
40

Doc. no. 123-7 (Barbara Bobo Declaration in Support of Exposure to Raymark Asbestos
Related Products), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts), ¶ 17.
41

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 28; doc. no. 83-3 (Exhibits to Priscilla
Carthen Deposition), at ECF 24. NOTE: “ECF” is an acronym formed from the initial letters of the
name of a filing system that allows parties to file and serve documents electronically (i.e.,
“Electronic Case Filing”). Bluebook Rule 7.1.4 allows citation to page numbers generated by the
ECF header. The Bluebook: A Uniform System of Citation, at 21 (Columbia Law Review Ass’n et
al. eds., 19th ed. 2010). Even so, the Bluebook recommends against citation to ECF pagination in
lieu of original pagination. Consequently, unless stated otherwise, this court will cite to the original
pagination in the parties’ pleadings. When the court cites to pagination generated by the ECF
header, it will, as here, precede the page number with the letters “ECF.”
42

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 9; see also notes 19-21, supra, and
accompanying text.

11

in the Browns Ferry Nuclear Plant.43 Numerous products and materials containing
asbestos fibers were present in that facility:44 for example, thermal pipe coverings
and insulation; roofing cement; packing materials; and gasket packing materials.45
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 objectively measurable units.46
Mr. Bobo held at various times job positions classified as “laborer,” “dual rate
laborer foreman,” and “laborer foreman.”47 He never held jobs classified as either
“asbestos worker” or “insulator.”48
Mr. Bobo’s duties while working as a “laborer” included, among other things,
general clean-up work, tool decontamination, and the packing and storing of
radiological waste.49 Moreover, he often was directed to assist TVA employees who

43

Doc. no. 83-3 (Exhibits to Priscilla Carthen Deposition), at ECF 24; doc. no. 201 (Agreed
and Stipulated Facts), ¶ 28.
44

Doc. no. 175 (Answer to Amended Complaint), ¶ 10; doc. no. 201 (Agreed and Stipulated
Facts), ¶ 31.
45

Doc. no. 83-2 (James Bobo Deposition), at 34-35. TVA’s 1967 Safety Manual noted that
asbestos thermal insulation was used at the plant and that “[e]xposures occurre[d] during application
and removal of insulation.” Doc. no. 91-1, at ECF 5 (alterations supplied).
46

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 32.

47

Id. ¶ 33.

48

Id. ¶ 34.

49

Id. ¶ 35.

12

installed insulation materials made from (or that contained) asbestos fibers.50
Occasionally, he would assist the insulators in such work; but, more often than not,
Mr. Bobo was directed to clean up after the insulators had completed their duties by
sweeping insulation residue that had fallen to the floor.51 The act of sweeping
generated airborne “dust” containing asbestos fibers.52 Mr. Bobo was often present
when insulators mixed refractory cement,53 a process that also generated airborne
asbestos fibers.
Mr. Bobo worked at various times in parts of the nuclear facility that contained
radiologically contaminated materials: areas that are referred to in this record as “C
-Zones.”54 Whenever Mr. Bobo did so, he was required to wear personal protective
gear — i.e., clothing and equipment worn to prevent or mitigate exposure to radiation
and radiological contamination.55 Whenever Mr. Bobo swept insulation residue that
50

Doc. no. 83-2 (James Bobo Deposition), at 36.

51

Id. at 36-38. Laborers cleaned up the insulation residue using brooms, rags, and mops.
Doc. no. 83-4 (Jimmy Myhan Deposition), at 60.
52

Doc. no. 83-2 (James Bobo Deposition), at 34, 100, 109; doc. no. 83-4 (Jimmy Myhan
Deposition), at 61.
53

Doc. no. 83-2 (James Bobo Deposition), at 144-45, 147.

54

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 36.

55

Id. ¶ 37 (“Mr. Bobo was required to wear over-garment protection while working in CZones for purposes of preventing personal radiological contamination.”). See also, e.g., U.S. Dept.
of Health & Human Services website on “Radiation Emergency Medical Management,” found at
http://www.remm.nlm.gov/radiation_ppe.htm (last visited June 12, 2015). The term contamination
refers to particles of radioactivity deposited where they are not supposed to be. See, e.g.,
http://nuclear.duke-energy.com/2012/08/21/radiation-protection-for-nuclear-employees (last visited
Sept. 29, 2015).

13

was not in a C-Zone, however, he wore only street clothes, with no over-garment
protective coverings,56 even though such gear would have prevented airborne asbestos
fibers from adhering to and contaminating his personal clothing.57 Mr. Bobo’s
clothing always was clean when he departed his residence for work each morning, but
the same garments generally were “pretty dirty” when he returned home.58
Jimmy Myhan was a TVA employee who worked with James Bobo 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.59 Mr. Myhan testified that, during both periods he and James Bobo
worked together — i.e., 1976-78, and, 1980 through 1993 — James Bobo worked at
least once each week in a C-Zone, and at all other times he worked in one of the three
units of the nuclear plant where he cleaned up white pipe insulation.60 Mr. Myhan’s
description of the 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
56

Trial Transcript, Day 2, at 13-16.

57

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 38.

58

Trial Transcript, Day 2, at 28-29, 136-37.

59

Doc. no. 201 (Agreed and Stipulated Facts), ¶¶ 29-30.

60

Trial Transcript, Day 2, at 11-16.

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in the Unit 1 reactor,61 and that the insulating materials made from (or containing)
asbestos fibers were white in color.62 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 at the nuclear plant on a daily basis.63 Indeed, TVA’s own
documentation confirms that asbestos insulation was used pervasively throughout the
Browns Ferry Nuclear Plant, including the three reactor units in which Mr. Bobo
worked.
A list of TVA employee fatalities shows that, in 1977, a labor foreman (a
position sometimes held by Mr. Bobo) died of asbestosis, and an electrician foreman
died of mesothelioma.64 A 1978 internal memorandum notes that an evaluation of the
Browns Ferry insulator shop revealed the presence of airborne asbestos fibers.65 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
61

The operating license for the Unit 1 reactor was issued by the U.S. Nuclear Regulatory
Commission on Dec. 20, 1973, and a renewal license issued on May 4, 2006. The current licence
is due to expire on Dec. 20, 2033. See http://www.nrc.gov/info-finder/reactor/bf1.html (last visited
June 12, 2015).
62

Trial Transcript, Day 1, at 163-67.

63

Trial Transcript, Day 3, at 12-13, 21.

64

Plaintiffs’ Exhibit 531, at 5.

65

Plaintiffs’ Exhibit 530.

15

known to exist for years and [were] still not abated.”66 A 1980 draft of TVA’s
“Hazard Control Standard 407” for asbestos allowed the purchase of asbestos
insulation, but only if no suitable, non-toxic substitute existed. It also required nonasbestos 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.67 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.”68 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.69 Finally, even
though non-asbestos “mineral wool” was sometimes used during construction of the
Browns Ferry Nuclear Plant, it was covered (encased) with asbestos mud and asbestos
cloth.70
The preponderance of the evidence presented at trial established that a
66

Plaintiffs’ Exhibit 531, at 45 (alterations supplied).

67

Plaintiffs’ Exhibit 533, at 3, 9.

68

Plaintiffs’ Exhibit 536, at 4 (emphasis and alteration supplied).

69

Plaintiffs’ Exhibit 543; Trial Transcript, Day 2, at 57-59.

70

Trial Transcript, Day 1, at 164.

16

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 all reactor units at the
Browns Ferry Nuclear Plant.
D.

Barbara Bobo’s Exposure to Airborne Asbestos Fibers That Originated
From Sources Other Than TVA’s Browns Ferry Nuclear Plant
Barbara Bobo, like many Americans above the age of sixty, probably was

exposed to products containing some amount of asbestos at various times throughout
her life.71

Plaintiffs’ counsel admitted that she experienced non-occupational

exposures to asbestos from 1965 until April 15, 1975, when her husband was
employed as a machine operator at the Alabama Wire plant, through laundering his
work clothes and traveling in the family automobile.72 Her exposures to asbestoscontaining products during that period, however, occurred thirty-five to forty-five
71

For example, it was alleged in both complaints filed in the present action that Barbara Bobo
was exposed to “asbestos-containing friction products” during the decades of the 1940s and 1950s
as a result of “observing her Father, who worked as a farmer, performing maintenance to his
tractors.” Doc. no. 1 (Complaint), ¶ 12(b), and doc. no. 171 (Amended Complaint), ¶ 12(b). See
also Rebecca Leah Levine, Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure
Litigation, 86 WASH. L. REV. 359, 363 (2011) (“Because of the widespread past and present use of
asbestos, low levels of asbestos are present in air, soil, and water, and each person is exposed to it
at some point during his or her life.”) (emphasis supplied, footnote omitted). The same
commentator observed in the omitted footnote, however, that “[m]ost people do not become ill from
their exposure. People who become ill from asbestos are usually those who are exposed to it on a
regular basis, most often through a job where they work directly with the material or through
substantial environmental contact.” Id. at 363 n. 36 (alteration supplied) (citing National Cancer
Institute, U.S. Department of Health & Human Services, ASBESTOS EXPOSURE AND CANCER RISK
FACT SHEET, at 2 (2009)).
72

Doc. no. 123 (Barbara Bobo’s May 30, 2013 Deposition), at 52-70; doc. no. 201 (Agreed
and Stipulated Facts), ¶ 18.

17

years before the date on which she was diagnosed with malignant pleural
mesothelioma.73
In addition, Mrs. Bobo worked as a beautician for various employers from
1976 until 1983, when she opened her own beauty salon in a building adjacent to the
home that she shared with James Bobo.74 From then until 2011 she was selfemployed as a beautician under the trade name of “Barbara’s Beauty Shop.”75 During
the approximately thirty-five 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.76 Mrs. Bobo used stationary hair dryers on her patrons twenty-five to thirty
times each day, and she inhaled dust particles while doing so.77 She also inhaled dust
while cleaning hair dryer filters each month: a maintenance procedure that involved
removing, cleaning, and reinserting the filters.78 The record does not indicate whether
the particles inhaled by Mrs. Bobo while performing such functions in her beauty
salon contained asbestos fibers, and neither the Bobo residence nor Mrs. Bobo’s salon
73

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 21.

74

Doc. no. 123 (Barbara Bobo’s May 30, 2013 Deposition), at 16; doc. no. 201 (Agreed and
Stipulated Facts), ¶ 7.
75

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 19.

76

Doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 28, 31; doc. no. 201 (Agreed
and Stipulated Facts), ¶ 20.
77

Doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 26-28; doc. no. 201 (Agreed
and Stipulated Facts), ¶ 20.
78

Doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 29-30; doc. no. 201 (Agreed
and Stipulated Facts), ¶ 20.

18

was ever tested for the presence of that substance.79
E.

Barbara Bobo’s Exposures to Airborne Asbestos That Originated 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 large quantity of those inherently dangerous toxic substances to
which she was subjected through her practice of laundering James Bobo’s work
clothes over the course of the twenty-two years that he worked for TVA at its Browns
Ferry Nuclear Plant.80 The laundry room located in the center of the Bobo home was
small: its floor dimensions were only about four feet by five feet (twenty square
feet).81 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 laundry room, shut the door, empty
the pockets, shake the clothing to remove loose dirt particles, and place the articles
in the washing machine.82 Mrs. Bobo testified in her deposition that she inhaled

79

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 40; doc. no. 83-1 (Barbara Bobo’s Sept. 25,
2012 Deposition), at 41-42; doc. no. 51 (Plaintiff’s Answer to Interrogatories), at 3.
80

See doc. no. 171 (Amended Complaint), ¶ 12; doc. no. 201 (Agreed and Stipulated Facts),
¶¶ 22, 39.
81

Doc. no. 201 (Agreed and Stipulated Facts), ¶¶ 23-24; doc. no. 83-1 (Barbara Bobo’s Sept.
25, 2012 Deposition), at 18.
82

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 24; doc. no. 83-1 (Barbara Bobo’s Sept. 25,
2012 Deposition), at 19.

19

“dust” while performing those tasks.83 She described the atmosphere of the laundry
room as “[f]oggy,” but said she “just thought it was dust.”84 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 she did so.85 Again, the record does not indicate whether
that “dust” contained asbestos fibers, and the Bobo residence was never tested for the
presence of that substance.86 Even so, the preponderance of the evidence indicates
that James Bobo’s clothing was encased in asbestos fibers by the time he returned
home from the nuclear plant each evening. It is more likely than not that Mrs. Bobo
unknowingly inhaled dangerous concentrations of asbestos fibers as she “shook out”
her husband’s clothing while sequestered within the small space of her laundry room.
F.

Plaintiff’s Expert
Dr. Eugene Mark testified, based upon his review of depositions, medical

records, and other materials in the case, that Mrs. Bobo was exposed to asbestos by
laundering her husband’s clothes for more than twenty-two years.87 He also testified
that studies in the scientific literature link mesothelioma to asbestos exposure from
83

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 25; doc. no. 83-1 (Barbara Bobo’s Sept. 25,
2012 Deposition), at 20.
84

Doc. no. 83-1 (Barbara Bobo’s Sept. 25, 2012 Deposition), at 19 (alteration supplied).

85

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 26; doc. no. 83-1 (Barbara Bobo’s Sept. 25,
2012 Deposition), at 20.
86

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 40; doc. no. 83-1 (Barbara Bobo’s Sept. 25,
2012 Deposition), at 41-42; doc. no. 51 (Plaintiff’s Answer to Interrogatories), at 3.
87

Trial Transcript, Day 1, at 86.

20

laundering the clothes of a person who works with asbestos.88 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 occupational
exposure cases.89 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.”90
Dr. Mark concluded 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.91
G.

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 OSH Act. 29 U.S.C. § 668(a).92
88

Id. at 87, 141, 145-51.

89

Id. at 158.

90

Id. (alteration supplied).

91

Id. at 97.

92

The remainder of that same section of the OSH Act mandates that the head of each Federal

agency:

21

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 as 29 U.S.C. § 668. Id. (alterations supplied).
Yet another Executive Order promulgated 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

(1) provide safe and healthful places and conditions of employment,
consistent with the standards set under section 655 of this title;
(2) acquire, maintain, and require the use of safety equipment, personal
protective equipment, and devices reasonably necessary to protect employees;
(3) keep adequate records of all occupational accidents and illnesses for
proper evaluation and necessary corrective action;
(4) consult with the Secretary with regard to the adequacy as to form and
content of records kept pursuant to subsection (a)(3) of this section; and
(5) make an annual report to the Secretary with respect to occupational
accidents and injuries and the agency's program under this section. Such report shall
include any report submitted under section 7902(e)(2) of Title 5.
29 U.S.C. § 668(a).

22

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 executive agencies, and to allow for detailed evaluations of such programs by
the Secretary of the Department of Labor. See id.
It was not until the promulgation of Executive Order 12,196 in February of
1980, however, that federal executive agencies were explicitly required to comply
with the regulations of the Occupational Safety and Health Administration. See 45
Fed. Reg. 12,769 (Feb. 26, 1980) (providing that the head of each agency must
“[c]omply with all standards issued under section 6 of [the OSH Act],” now codified
as 29 U.S.C. § 668 (alterations supplied)).
H.

The Evolution of OSHA Standards
The Occupational Safety and Health Administration (“OSHA”) promulgated

an emergency temporary standard for exposure to asbestos fibers under Section 6 of
the OSH Act in 1971 (now codified as 29 U.S.C. § 668). 36 Fed. Reg. 23,207
(December 7, 1971). The temporary standard provided that an employee’s exposure
could not exceed five fibers longer than five micrometers in length per milliliter of
air over an eight-hour, time-weighted average, and could not exceed a peak
concentration level of ten fibers longer than five micrometers in length per cubic
23

centimeter of air. See 36 Fed. Reg. 23,208.93 The concentration level of airborne
asbestos fibers was to be determined by “the membrane filter method at 400-450x
magnification (4 millimeter objective) phase contrast illumination.” Id.
The exposure limits stated in the 1971 temporary standard became final in
1972, when OSHA notified employers to prepare for the following reductions in
exposure limits that were to take effect, initially, on July 7, 1972, and then be further
reduced four years thereafter, on July 1, 1976:
(b) Permissible exposure to airborne concentrations of asbestos fibers
(1) Standard effective July 7, 1972. The 8-hour time-weighted
average airborne concentrations of asbestos fibers to which any
employee may be exposed shall not exceed five fibers, longer than 5
micrometers, per cubic centimeter of air, as determined by the method
prescribed in paragraph (e) of this section.
(2) Standard effective July 1, 1976. The 8-hour time-weighted
average air-borne concentrations of asbestos fibers to which any
employee may be exposed shall not exceed two fibers, longer than 5
micrometers, per cubic centimeter of air, as determined by the method
prescribed in paragraph (e) of this section.
(3) Ceiling concentration. No employee shall be exposed at any
given time to airborne concentrations of asbestos fibers in excess of 10
fibers, longer than 5 micrometers, per cubic centimeter of air, as
determined by the method prescribed in paragraph (e) of this section.
29 C.F.R. § 1910.93a(b) (1972), recodified as 29 C.F.R. § 1910.1001 (1975)
93

The Federal Register notice issued by OSHA announced the creation of 29 C.F.R. §
1910.93a (1971), recodified as 29 C.F.R. § 1910.1001 (1975). The emergency temporary standard
for exposure to asbestos fibers was codified as 29 C.F.R. § 1910.93a(a).

24

(emphasis supplied).94
OSHA also specified requirements for protective equipment and clothing for
employees, such as James Bobo, who were exposed to airborne concentrations of
asbestos fibers that exceeded the permissible exposure levels prescribed in Section
1910.93a(b).
(d)(3) Special clothing: The employer shall provide, and require
the use of, special clothing, such as coveralls or similar whole body
clothing, head coverings, gloves, and foot coverings for any employee
exposed to airborne concentrations of asbestos fibers, which exceed the
ceiling level prescribed in paragraph (b) of this section.
(4) Change rooms: (i) At any fixed place of employment exposed
to airborne concentrations of asbestos fibers in excess of the exposure
limits prescribed in paragraph (b) of this section, the employer shall
provide change rooms for employees working regularly at the place.
(ii) Clothes lockers: The employer shall provide two separate
lockers or containers for each employee, so separated or isolated as to
prevent contamination of the employee’s street clothes from his work
clothes.
(iii) Laundering: (a) Laundering of asbestos contaminated
clothing shall be done so as to prevent the release of airborne asbestos
fibers in excess of the exposure limits prescribed in paragraph (b) of this
section . . . .
29 C.F.R. § 1910.93a(d) (1972), recodified as 29 C.F.R. § 1910.1001 (1975).
In addition, OSHA mandated particular methods of measuring and monitoring
94

At the time OSHA notified employers to prepare for the upcoming reductions in exposure
limits, it also amended 29 C.F.R. § 1910.93a to eliminate the provision containing the temporary
standard. See 37 Fed. Reg. 11,318-20 (June 7, 1972).

25

the concentrations of airborne asbestos fibers.
(e) Method of measurement. All determinations of airborne
concentrations of asbestos fibers shall be made by the membrane filter
method at 400-450 x (magnification) (4 millimeter objective) with phase
contrast illumination.
(f) Monitoring — (1) Initial determinations. Within 6 months of
the publication of this section, every employer shall cause every place
of employment where asbestos fibers are released to be monitored in
such a way as to determine whether every employee’s exposure to
asbestos fibers is below the limits prescribed in paragraph (b) of this
section . . . .
(2) Personal monitoring — (i) Samples shall be collected from
within the breathing zone of the employees, on membrane filters of 0.8
micrometer porossity mounted in an open-face filter holder. Samples
shall be taken for the determination of the 8-hour time-weighted average
airborne concentrations and of the ceiling concentrations of asbestos
fibers.
(ii) Sampling frequency and patterns. After the initial
determinations required by subparagraph (1) of this paragraph, samples
shall be of such frequency and pattern as to represent with reasonable
accuracy the levels of exposure of employees. In no case shall the
sampling be done at intervals greater than 6 months for employees
whose exposure to asbestos may reasonably be foreseen to exceed the
limits prescribed by paragraph (b) of this section.
29 C.F.R. §§ 1910.93a(e)-(f) (1972), recodified as 29 C.F.R. § 1910.1001 (1975).
The 1972 OSHA standard for asbestos exposure also contained a mandate for
employer-provided medical examinations: i.e., “[E]very employer shall provide, or
make available, comprehensive medical examinations to each of his employees

26

engaged in occupations exposed to airborne concentrations of asbestos fibers.” 29
C.F.R. § 1910.93a(j)(3) (alteration supplied).
I.

TVA Internal Policies
TVA has an internal safety organization that is “responsible for establishing

TVA policies and procedures for assuring safe and healthful work conditions for all
employees on TVA properties (TVA safety practices).”95 Such safety practices “are
organized generally into three tiers: agency safety practices established by the TVA
safety organization; business unit safety practices established by major business units
such as nuclear power . . . ; and site specific safety practices established by local
facilities such as Browns Ferry . . . .”96 Further, many of those safety practices
address specific standards relating to the use of asbestos at TVA properties, such as
the Browns Ferry Nuclear Plant.97
1.

TVA Hazard Control Standard 407

TVA adopted “Hazard Control Standard 407” for asbestos on April 15, 1974.98
Paragraph 1.0 of that standard stated that it applied “primarily, but not exclusively,
to operations where asbestos or insulating material containing asbestos is handled,
95

Doc. no. 68 (Christopher Jeter Affidavit), ¶ 2.

96

Id. ¶ 3; doc. no. 201 (Agreed and Stipulated Facts), ¶ 44.

97

Doc. no. 68 (Christopher Jeter Affidavit), ¶ 4; doc. no. 201 (Agreed and Stipulated Facts),

¶ 45.
98

Doc. no. 68 (Christopher Jeter Affidavit), ¶ 4; see also Plaintiffs’ Exhibit 528 (TVA
Hazard Control Standard 407); doc. no. 68-1 (same).

27

mixed, sprayed, applied, removed, cut, or scored.”99 Paragraph 4.1.2 noted that the
following materials are examples of substances that may contain asbestos: heat
insulating materials; fireproofing materials; transite;100 limpet fibers;101 calcium
silicate block and pipe insulation; asbestos cement, mortars, wire covers, grouting,
paper, blankets, tape, and plaster; and vehicle brake linings.102 Paragraph 4.3 of
Hazard Control Standard 407 prescribed the permissible exposure level for airborne
concentrations of asbestos in the following terms:
4.3.1 The 8-hour time-weighted average airborne concentration of
asbestos fibers to which an employee may be exposed shall not
exceed five fibers, each longer than five micrometers, per cubic
centimeter of air. (On July 1, 1976, the permissible concentration
for asbestos will be reduced from five fibers to two fibers, each
longer than five micrometers, per cubic centimeter of air.)
4.3.2 An employee shall not be exposed for any length of time to
airborne concentrations of asbestos fibers in excess of the ceiling
limit of 10 fibers, each longer than five micrometers, per cubic
centimeter of air without appropriate personal protective
equipment as described in paragraph 4.5 of this standard.103
99

Plaintiffs’ Exhibit 528 (TVA Hazard Control Standard 407), at 1 (alteration supplied).

100

“Transite” originated as a trade name for a line of asbestos-cement products, but over time,
it became a generic term for “a hard, fireproof composite material” and “fiber cement boards” that
were frequently used in wall construction. See http://en.wikipedia.org/wiki/Transite (last visited
Sept. 29, 2015).
101

“Limpet” is a mixture of cement and asbestos, and it was often used in a spray-form. See
Geoffrey Tweedale, Limpet Asbestos: Spraying Ill-Health World-Wide, World Asbestos Report,
http://worldasbestosreport.org/conferences/gac/gac2000/A5_8_182.php (last visited Sept. 29, 2015).
It was often used for insulation, sound-proofing, fireproofing, and condensation control. Id.
102

See Plaintiffs’ Exhibit 528 (TVA Hazard Control Standard 407), at 2.

103

Id. at 2-3.

28

Paragraph 4.4 provided instructions on the proper use of asbestos-containing
products:
4.4.1 Engineering controls, except when technically not feasible, shall
be utilized to ensure that each individual working with or near
materials containing asbestos is not exposed to concentrations of
asbestos dust in excess of the permissible limits. Administrative
controls shall be used only if engineering controls are not
feasible.
4.4.2 When both respiratory protection and control of exposure time are
practicable, control of exposure time shall be used. The
permissible exposure time can be determined by allowing a
precalculated length of exposure to airborne concentrations of
asbestos above the permissible concentration (but in no case,
above the ceiling limit), followed by a comparable period of no
exposure. Accurate records of exposure times and airborne
asbestos concentrations shall be maintained.
4.4.3 Asbestos and materials containing asbestos shall be handled,
mixed, applied, removed, cut, scored, or otherwise used in a wet
state (except where impracticable or where the usefulness of the
product would be diminished) to prevent airborne concentrations
of asbestos fibers in excess of the permissible limits . . . .104
Paragraph 4.5 of Hazard Control Standard 407 defined the requirements for
personal protective equipment as follows:
4.5.1.1 The use of respiratory protection for controlling employee
exposure to asbestos shall be limited to the following conditions:
A.

104

Prior to implementation of engineering controls or work
methods designed to maintain airborne asbestos
concentrations within the permissible limits required by

Id. at 3 (emphasis supplied).

29

paragraph 4.3 of this standard.
B.

Where engineering controls or administrative controls are
technically not feasible.

C.

In emergency situations.

D.

Prior to determining the airborne concentrations of
asbestos in a work environment.

4.5.2 Employees exposed to airborne concentrations of asbestos fibers
greater than the ceiling limit shall be provided with and required
to use personal protective equipment to protect the eyes, head,
hands, feet, and trunk from asbestos . . . . Protective clothing shall
be utilized for exposures of undetermined concentrations until it
has been proven by tests that the activity will not produce
concentrations above the ceiling limits.105
Paragraph 4.6.2 contained standards for changing rooms, and stated that
“[e]ach employee exposed to airborne concentrations of asbestos in excess of the
ceiling limit shall be provided with two separate lockers or containers so separated
or isolated [as] to prevent contamination of the employee’s street clothes from his
work clothes.”106
Paragraph 4.7 established requirements for “Personal and Environmental
Monitoring,” and provided that:
Initial and continuing monitoring shall be performed by the TVA Hazard
Control Branch which will quantitatively determine airborne asbestos
105

Id. at 3-5 (emphasis supplied).

106

Plaintiffs’ Exhibit 528 (TVA Hazard Control Standard 407), at 5 (alterations and emphasis

supplied).

30

fiber concentration in the breathing zone of exposed employees, and in
areas of a work environment which are representative of airborne
concentrations which may reach the breathing zone of employees.
Eight-hour time-weighted average and ceiling concentrations shall be
determined. Such evaluations shall be accomplished at least
semiannually and shall represent with reasonable accuracy the levels of
exposure of employees.107
TVA also was required to “maintain records of personal monitoring and
environmental monitoring.”108
Paragraph 4.9, addressing the subject of “Housekeeping,” provided that “the
use of air jets or dry sweeping to clean up asbestos accumulations is prohibited.”109
Finally, Paragraph 4.10.2 of Hazard Control Standard 407 mandated that
“[e]mployees exposed to airborne concentrations of asbestos fibers shall receive an
annual medical examination.”110 Significantly, TVA was required to retain records
of those medical examinations for twenty years.111
2.

TVA nuclear power safety and hazard control manual

TVA’s Nuclear Power Division adopted a safety and hazard control manual on
May 8, 1978.112 The threshold limit for airborne asbestos concentrations under the
107

Id. at 5 (emphasis supplied).

108

Id. at 6.

109

Id. (emphasis supplied).

110

Id. (alteration supplied).

111

Id.

112

See Plaintiffs’ Exhibit 529 (Division of Nuclear Power Safety and Hazard Control
Manual); doc. no. 86-4 (same); doc. no. 68-2 (TVA Asbestos Standards – Browns Ferry Nuclear

31

standards of that manual was “five fibers per cubic centimeter, greater than five
micrometers in length.”113 Requirement number 4 specified that “[e]mployees
exposed to airborne concentrations of asbestos shall wear an approved respirator and
protective coveralls . . . .”114 Additionally, requirement number 12 mandated that
“[e]ach employee exposed to airborne concentrations of asbestos shall be provided
with two separate lockers. One locker shall be used for street clothes and must not
be contaminated with asbestos.”115 Similarly, a 1979 internal plant memorandum
stated that “[l]ocker and shower facilities separate from other plant facilities should
be provided for all insulators and designated cleanup laborers.”116
3.

Browns Ferry Standard Practice 14.45

“Standard Practice 14.45,” adopted by the Browns Ferry Nuclear Plant on
October 15, 1980, is a reference point that established site-specific policies and
procedures governing the use of asbestos and asbestos-containing materials.117 That
standard set the threshold limit value for airborne asbestos concentrations at “five
Plant (1975-1985)).
113

Plaintiffs’ Exhibit 529 (Division of Nuclear Power Safety and Hazard Control Manual),

at 2965.
114

Id. (alteration supplied).

115

Id. at 2966 (alteration and emphasis supplied).

116

Plaintiffs’ Exhibit 530 (alteration and emphasis supplied).

117

See Plaintiffs’ Exhibit 534 (Browns Ferry Nuclear Plant Standard Practice 14.45), at 1;
doc. no. 90-2 (same), at ECF 2; doc. no. 68-2 (TVA Asbestos Standards – Browns Ferry Nuclear
Plant (1975-1985)).

32

fibers per cubic centimeter, greater than five micrometers in length.”118 In addition,
the same standard provided that “[e]mployees exposed to airborne concentrations of
asbestos shall wear an approved respirator and protective coveralls . . . .”119 Annual
medical examinations were also mandated for “employees exposed to airborne
concentrations of asbestos fibers.”120 Although other requirements in Standard
Practice 14.45 applied to “concentrations of asbestos dust in excess of the permissible
limits,” the respirator and coveralls requirement did not make that distinction.121
Thus, that requirement applied to any quantity of asbestos exposure.
4.

1984 memorandum – “TVA Policy on Asbestos”

A 1984 memorandum entitled “TVA Policy on Asbestos” established
“additional requirements to better protect employees from exposure to asbestos
fibers.”122 The first requirement lowered the agency target for asbestos to “no more
than 0.5 fibers, longer than 5 micrometers, per cubic centimeter of air (f/cc) as the
permissible 8-hour time-weighted average (TWA) airborne concentration of all forms
of asbestos. The ceiling level will be lowered from 10 f/cc to 5 f/cc.”123 Employees
118

Plaintiffs’ Exhibit 534 (Browns Ferry Nuclear Plant Standard Practice 14.45), at 1.

119

Id. (alteration supplied).

120

Id. at 2.

121

Id. at 1.

122

See TVA’s Exhibit 67 (Memorandum by W.F. Willis), at 1; doc. no. 90-3 (same), at 1;
doc. no. 68-2 (TVA Asbestos Standards – Browns Ferry Nuclear Plant (1975-1985)), at 1.
123

TVA’s Exhibit 67 (Memorandum by W.F. Willis), at 1.

33

who could “reasonably be expected to be exposed above a TWA of .1 fiber/cc” were
to be identified, given initial and annual training, and offered medical
examinations.124
J.

TVA’s Response to OSHA Regulations, Policies, and Procedures
The parties stipulated that no statute, regulation, or policy — including the

Occupational Safety and Health Act of 1970 and regulations promulgated thereunder
by the Occupational Safety and Health Administration — imposed a mandatory
requirement that TVA prevent all exposure to airborne asbestos fibers during the
years that James Bobo worked at Browns Ferry.125 In other words, that Act and the
regulations promulgated thereunder, as well as TVA’s own internal polices and
procedures, allowed employees to be exposed to airborne asbestos fibers at
concentration levels between zero and the permissible exposure levels in effect on the
date of the occupational exposure.126 Even so, TVA was aware of the regulations
promulgated pursuant to the Occupational Safety and Health Act by the Occupational
Safety and Health Administration.127 As early as 1974, TVA knew that there was a

124

Id. at 2.

125

See doc. no. 201 (Agreed and Stipulated Facts), ¶ 46 (1st sentence).

126

Id. (2d sentence) (“In other words, the OSH Act of 1970, OSHA regulations, and TVA
procedures allow for occupational exposures to asbestos at levels between zero and the permissible
exposure levels (PELs) in effect at the time of the occupational exposure.”).
127

Id. ¶ 48.

34

certain amount of airborne asbestos fibers that could land on an employee’s clothing,
and that should be avoided for reasons of the employee’s health.128 TVA first
established an asbestos standard in 1974 as part of its Hazard Control Manual.129
Moreover, as previously discussed in Parts III.I.1. and III.I.2. of this opinion, supra,
TVA’s internal polices required that protective clothing and separate lockers be
provided to employees exposed to any quantity of airborne asbestos fibers. Further,
TVA was aware that, of nine employee deaths that occurred during 1977, two were
attributable to asbestos: a labor foreman died of asbestosis, and an electrician
foreman died of mesothelioma.130 Finally, even though Browns Ferry Nuclear Plant
employees began to use insulation materials that were not made of (or did not
contain) asbestos (generally brown or greenish-brown in color) during the 1980s,131
insulation materials containing asbestos continued to be used and installed until at
least 1991.132
TVA’s industrial hygiene database lists no record of air sampling to determine
concentrations of airborne asbestos fibers prior to October 1979.133

128

Id. ¶ 49.

129

Id. ¶ 50.

130

Id. ¶ 51; see also Part III.C. of this opinion, supra.

131

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 53.

132

Id. ¶ 52.

133

Id. ¶ 55.

35

Indeed,

employees at the Browns Ferry Nuclear Plant were not monitored for asbestos
exposure until at least the early 1980s.134 A 1979 internal plant memorandum stated
that “TVA and Federal safety and health standards require that we provide locker and
shower facilities for insulators and designated cleanup laborers that are separate from
the plant’s regular facilities.”135
The extent to which employees in the Browns Ferry Nuclear Plant were
exposed to airborne asbestos fibers was to be determined by a visual inspection
conducted by supervisory personnel, but plant managers were not provided any
meaningful criteria to measure the concentration levels to which employees were
exposed.136 Further, Browns Ferry supervisors conducted asbestos air monitoring
measurements of only three employees in 1980.137 Only eight employees were
sampled in 1981, and only five in 1982.138 For such reasons, an internal review
conducted in 1988 determined that asbestos monitoring “has been very limited and
does not meet the monitoring requirements of the OSHA asbestos standard.”139
Further, TVA did not provide laborers with protective clothing, separate lockers, or
134

Id. ¶ 56.

135

Id. ¶ 57.

136

Trial Transcript, Day 2, at 62-64, 67, 71.

137

Id. at 65-66. Air monitoring was performed by measuring the number of asbestos fibers
in the air in the work area of the employee. Id. at 57.
138

Id. at 66.

139

Plaintiffs’ Exhibit 536, at 7 (emphasis supplied).

36

separate showers, unless they worked in a C-Zone.140
J.

Plaintiffs’ Damage Claims
Barbara Bobo was subjected to a “thoracentesis” — a procedure in which a

long needle is used to perforate the chest-wall and draw off morbid accumulations of
excess fluid from the pleural space between the inner wall of the chest cavity and the
lungs141 — during November of 2011.142 Approximately two liters of fluid were
removed.143 A November 11, 2011 laboratory analysis of the extracted fluid produced
a diagnosis of mesothelioma:144 “a tumor derived from mesothelial tissue . . . .”145 A
pathological evaluation conducted on December 13, 2011 resulted in a diagnosis of
malignant pleural mesothelioma:146 a condition that is “often the result of excessive
exposure to asbestos,”147 and one that often spreads widely, invading other thoracic
structures. “It is usually fatal within one year.”148 Mrs. Bobo survived nearly twice
that length of time, but the remainder of her term on this earth was filled with pain.
140

See Trial Transcript, Day 2, at 13, 16; Plaintiffs’ Exhibit 530.

141

See http://www.nhlbi.nih.gov/health/health-topics/topics (“What is Thoracentesis?”) (last
visited June 10, 2015).
142

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 58.

143

Id. ¶ 59.

144

Id. ¶ 60.

145

Dorland’s Illustrated Medical Dictionary 1134 (30th ed. 2003).

146

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 61.

147

Dorland’s Illustrated Medical Dictionary 1134 (30th ed. 2003).

148

Id. 1135.

37

She was subjected to multiple rounds of chemotherapy from January through April
of 2012,149 and endured a number of undesirable side effects from the treatments,
including pain when drinking fluids and spitting up raw flesh.150 The therapy became
so painful that she referred to the chemical administered to her as the “Red Devil.”151
Dr. David Sugarbaker performed a pleurectomy on Mrs. Bobo on June 14, 2012,
during which he removed a rib and the pleural lining of one lung.152 Mrs. Bobo was
hospitalized for twenty-two days following that procedure, after which she was
discharged to begin a painful rehabilitation regime.153
Plaintiffs claim $8,000,000 in damages for the physical pain, suffering, mental
anguish, and loss of the enjoyment of life endured by their mother during the twentytwo month period between her diagnosis of mesothelioma and resulting death.154
They also assert a claim for the aggregate amount of $537,131.82 in medical expenses
incurred in the unsuccessful attempt to force Mrs. Bobo’s mesothelioma into
remission.155

149

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 62.

150

Id. ¶ 64.

151

Id. ¶ 63.

152

Id. ¶ 65.

153

Id. ¶ 66.

154

Id. ¶ 68; doc. no. 191 (Pretrial Order), at 6.

155

Doc. no. 180 (Stipulations Regarding Plaintiffs’ Final Medical Expenses Damages Claim
for Purposes of Trial); doc. no. 201 (Agreed and Stipulated Facts), ¶¶ 70-71.

38

Barbara Bobo was insured at all relevant times by Medicare and Blue Cross
Blue Shield of Alabama.156 Those insurers paid or satisfied 99.1% of Mrs. Bobo’s
medical expenses (i.e., $532,131.82 of the $537,131.82 aggregate).157 Medicare
asserts a subrogation claim of $82,793.81 for its payments to her medical providers.158
Plaintiffs retained Garretson Resolution Group, Inc., to represent them in
negotiating with Medicare Secondary Payer Recovery Contractors regarding the
amount of Medicare’s subrogation claim.159 Garretson has contested $1,180.06 of
Medicare’s subrogation claim in an effort to reduce the amount plaintiffs will be
required to pay.160 The amount of the claim recoverable from plaintiffs may be
subject to reduction as provided in 42 C.F.R. § 411.37 (2013).161
L.

Plaintiffs’ Settlements
Barbara Bobo submitted claims for compensation to seventeen asbestos

bankruptcy trusts following her diagnosis of mesothelioma.162 Plaintiffs’ attorneys

156

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 72.

157

Doc. no. 179 (Stipulations Regarding Plaintiffs’ Final Medical Expenses Damages Claim
for Purposes of Trial); doc. no. 201 (Agreed and Stipulated Facts), ¶ 73.
158

Doc. no. 179 (Stipulations Regarding Plaintiffs’ Final Medical Expenses Damages Claim
for Purposes of Trial); doc. no. 201 (Agreed and Stipulated Facts), ¶ 74.
159

Doc. no. 201(Agreed and Stipulated Facts), ¶ 75.

160

Id. ¶ 76.

161

Id. ¶ 77.

162

Doc. no. 81 (Notice of Service of Plaintiff’s Bankruptcy Claims); doc. no. 201 (Agreed
and Stipulated Facts), ¶ 78.

39

prepared and submitted the claims forms to the asbestos bankruptcy trusts for the
purpose of obtaining monetary compensation for Mrs. Bobo’s asbestos-related
injuries.163 As of February 9, 2015, plaintiffs had entered into settlements with
asbestos bankruptcy trusts in the aggregate amount of $136,176.37. Accordingly,
TVA is entitled to an offset in that amount.164
As of February 9, 2015, plaintiffs had seven pending claims with other asbestos
bankruptcy trusts, and potential claims against other bankrupt entities that may, or
may not, establish trusts for the compensation of asbestos victims. TVA is entitled
to an offset in the amount of all payments received by plaintiffs in connection with
any of those pending claims, if any.165
IV. CONCLUSIONS OF LAW
“We bring more than a paycheck to our loved ones and family. We
bring asbestosis, silicosis, brown lung, black lung disease. And
radiation hits the children before they’ve even been conceived.”
“More Than a Paycheck,” sung by Sweet Honey in the
Rock on the Collector Records album entitled We Just
Come to Work Here, We Don’t Come to Die.166

This case proceeded to trial on plaintiffs’ claims that TVA negligently violated

163

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 79.

164

Id. ¶ 80.

165

Id. ¶ 81.

166

See http://www.folkways.si.edu/sweet-honey-in-the-rock/more-than-a-paycheck/americanfolk/music/track/smithsonian (last visited Sept. 17, 2015).

40

numerous regulations and standards promulgated by OSHA, as well as its own
internal policies relating to monitoring and reducing exposure to asbestos and
preventing the transport of asbestos fibers off TVA property. Specifically, plaintiffs
alleged that TVA negligently violated OSHA regulations and its own policies in at
least the following ways: exceeding permissible levels of exposure; failing to follow
mandatory directives governing the monitoring of an employee’s exposure; failing
to administer annual medical examinations to employees who, like James Bobo, were
exposed to airborne asbestos fibers as a result of their work duties; and failing to
provide protective equipment, clothing, lockers, and shower facilities for employees
like James Bobo.167 In order to prevail on any of those claims, plaintiffs were
required to prove by a preponderance of the evidence that: TVA owed a duty of care
to Barbara Bobo; TVA breached that duty; Barbara Bobo was harmed; and TVA’s
breach of duty was the proximate cause of the harm to Mrs. Bobo and of the damages
claimed by plaintiffs. E.g., Ford Motor Co. v. Burdeshaw, 661 So. 2d 236, 238 (Ala.

167

See doc. no. 191 (Pretrial Order) ¶ 5(b), at 6; see also doc. no. 174 (Memorandum Opinion
and Order Denying TVA’s Motion for Summary Judgment), at 56 (permitting case to proceed on
plaintiffs’ claims that TVA was negligent in at least the following respects: (1) TVA violated
Occupation Safety and Health Administration regulations concerning permissible levels of asbestos
exposure; (2) TVA failed to follow mandatory directives governing the monitoring of an employee’s
exposure to asbestos; (3) TVA failed to provide employees who were exposed to airborne asbestos
fibers protective clothing and equipment, as well as separate locker rooms and shower facilities; and
(4) TVA failed to administer annual medical examinations to employees exposed to airborne
asbestos fibers).

41

1995). See also, e.g., Sessions v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002) (“In
[a] premises-liability case, the elements of negligence are the same as those in any tort
litigation: duty, breach of duty, cause in fact, proximate or legal cause, and
damages.”) (quoting Ex parte Harold L. Martin Distributing Co., 769 So. 2d 313, 314
(Ala. 2000) (in turn quoting E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 969
(Ala. 1985)) (alteration in original, internal quotation marks omitted).
In addition to disputing plaintiffs’ proof of the elements of a prima facie case,
TVA contends that the statute of limitations has expired, and that it is shielded from
liability by the so-called “discretionary function doctrine.”
A.

Did TVA Owe Barbara Bobo a Duty of Care?
Plaintiffs must demonstrate that TVA was subject to a legal “duty” in order to

maintain an action based upon a theory of negligence. E.g., Thompson v. Mindis
Metals, 692 So. 2d 805, 807 (Ala. 1997); see also, e.g., Pugh v. Butler Telephone Co.,
512 So. 2d 1317, 1319 (Ala. 1987) (stating that “the existence of a legal duty of care
owed by the defendant to the plaintiff” is fundamental to the maintenance of a
negligence action); Bessemer v. Brantley, 65 So. 2d 160, 165 (Ala. 1953) (observing
that “where there is no duty, there can be no negligence”).
Negligence is a matter of risk — that is to say, of recognizable
danger of injury. It has been defined as “conduct which involves an
unreasonably great risk of causing damage,” or, more fully, conduct
42

“which falls below the standard established by law for the protection of
others against unreasonably great risk of harm.” . . .
William L. Prosser, Law of Torts § 31, at 145 (4th ed. 1971) (emphasis supplied,
footnotes omitted). In the context of the present discussion, the phrase “the standard
established by law for the protection of others against [an] unreasonably great risk of
harm” is synonymous with the concept of “duty.”
TVA denies that it had a duty to avoid harming non-employees like Barbara
Bobo, saying that “no Alabama appellate court has issued an opinion regarding the
availability of take-home claims under Alabama law,”168 and that a majority of the
jurisdictions that have considered similar claims have dismissed them “for lack of [a]
legal duty.”169
168

Doc. no. 128 (TVA’s Brief in Support of Summary Judgment), at 20 (citations omitted);
see also doc. no. 209 (TVA’s Post-Trial Brief), at 19 (“TVA incorporates its summary judgment
briefing that TVA owed no legal duty of care to Mrs. Bobo, who was never present at BFN.”) (citing
doc. no. 128, at 20-30).
169

See doc. no. 128 (TVA’s Brief in Support of Summary Judgment), at 20 (alteration
supplied) (citing Campbell v. Ford Motor Co., 141 Cal. Rptr. 3d 390 (Cal. Ct. App. 2012)
(concluding that “a property owner has no duty to protect family members of workers on its premises
from secondary exposure to asbestos used during the course of the property owner’s business”);
Price v. E.I. DuPont De Nemours & Co., 26 A.3d 162, 170 (Del. 2011) (holding that there was no
legal duty because the plaintiff did not have a “special relationship” with the premises owner); Boley
v. Goodyear Tire & Rubber Co., 929 N.E.2d 448, 453 (Ohio 2010) (holding in accordance with an
Ohio statute that “a premises owner is not liable in tort for claims arising from asbestos exposure
originating from asbestos on the owner’s property, unless the exposure occurred at the owner’s
property”); In re Certified Question from Fourteenth District Court of Appeals of Texas, 740 N.W.2d
206, 222 (Mich. 2007) (“[W]e hold that, under Michigan law, defendant, as owner of the property
. . . did not owe to the deceased, who was never on or near that property, a legal duty to protect her
from exposure to any asbestos fibers carried home on the clothing of a member of her household .
. . .”) (alteration supplied); In re Eighth Judicial District Asbestos Litigation, 815 N.Y.S.2d 815, 817

43

“A legal duty to exercise care . . . arises where the parties are bound by
contract, . . . or where the obligations are expressly or impliedly imposed by statute,
municipal ordinance, or by administrative rules or regulations, or by judicial
decisions.” King v. National Spa & Pool Institute, 570 So. 2d 612, 614 (Ala. 1990)
(citations and internal quotation marks omitted).170 Here, obligations that established
legal duties against which the actions of TVA can be measured were imposed by
regulations promulgated by the Occupational Safety and Health Administration, as
well as by TVA itself.
Moreover, as plaintiffs point out, the cases relied upon by TVA do not place
(N.Y. Sup. Ct. 2006) (holding that employer did not owe duty of care to spouse of employee who
contracted mesothelioma as a result of laundering her husband’s asbestos-laden work clothes); CSX
Transportation, Inc. v. Williams, 608 S.E.2d 208, 210 (Ga. 2005) (“[W]e decline to extend on the
basis of foreseeability the employer’s duty beyond the workplace to encompass all who might come
into contact with an employee or an employee’s clothing outside the workplace.”) (alteration
supplied); Adams v. Owens-Illinois, Inc., 705 A.2d 58, 66 (Md. Ct. Spec. App. 1998) (holding that
a steel company did not owe a duty of care to an employee’s wife to maintain a safe workplace for
its employees); see also Kan. Stat. Ann. § 60-4905(a) (2012) (“No premises owner shall be liable
for any injury to any individual resulting from silica or asbestos exposure unless such individual’s
alleged exposure occurred while the individual was at or near the premises owner’s property.”); Ohio
Rev. Code Ann. § 2307.941(A)(1) (“A premises owner is not liable for any injury to any individual
resulting from asbestos exposure unless that individual’s alleged exposure occurred while the
individual was at the premises owner’s property.”)).
170

See also I Thomas Atkins Street, The Foundations of Legal Liability, at 92 (1906):

In every situation where a man undertakes to act or to pursue a particular course he
is under an implied legal obligation or duty to act with reasonable care, to the end
that the person or property of others may not be injured by any force which he sets
in operation or by any agent for which he is responsible. If he fails to exercise the
degree of caution which the law requires in a particular situation, he is held liable for
any damage that results to another just as if he had bound himself by an obligatory
promise to exercise the required degree of care.

44

the same emphasis upon the foreseeability of the risk of harm as do the courts of
Alabama.171 In this State, the “key factor” for determining whether a duty should be
imposed as a matter of law in novel factual circumstances is the “foreseeability” of
the harm that might result if care is not exercised. DiBiasi v. Joe Wheeler Electric
Membership Corp., 988 So. 2d 454, 461 (Ala. 2008) (quoting Patrick v. Union State
Bank, 681 So. 2d 1364, 1368 (Ala. 1996) (in turn quoting Smitherman v. McCafferty,
622 So. 2d 322, 324 (Ala. 1993)); see also, e.g., Yanmar America Corp. v. Nichols,
166 So. 3d 70, 83 (Ala. 2014) (observing that “[t]he ultimate test of duty to use [due]
care is found in the foreseeability that harm may result if care is not exercised”)
(quoting King, 570 So. 2d at 615 (in turn quoting Bush v. Alabama Power Co., 457
So. 2d 350, 353 (Ala. 1984)) (alterations in original)); see also, e.g., Taylor v. Smith,
892 So. 2d 887, 892 (Ala. 2004) (holding that, when determining whether a duty
exists, “[t]he key factor is whether the injury was foreseeable by the defendant”)
(emphasis in original, citations and internal quotation marks omitted, alteration
supplied).
The foreseeability of the harm to Mrs. Bobo was evident from the very nature
of the relevant OSHA regulations and TVA’s internal standards, all of which
171

See doc. no. 211 (Plaintiffs’ Post-Trial Brief), at 22-23 (citations omitted); see also doc.
no. 145 (Plaintiffs’ Brief in Opposition to Summary Judgement) at 27-30 (citations omitted). See
supra note 169 for a listing of the cases relied upon by TVA.

45

mandated, among other things, that TVA provide two lockers for each employee, so
separated or isolated as to prevent contamination of the employee’s street clothes
from his work clothes, separate changing facilities, and showers for its employees.
The common thread linking those rules was the goal of preventing asbestos fibers
from clinging to an employee’s street clothes, skin, or hair, and being carried off of
TVA property. Other regulations, such as those setting limits on airborne asbestos
concentrations at the nuclear plant, and those requiring periodic medical
examinations, clearly contemplated that TVA employees would be exposed to and
inhale airborne asbestos fibers while at work. Note well, however, that no reasonable
person can argue that the regulations which sought to prevent the transport of
asbestos fibers off TVA property did not contemplate that employees’ household
members would be exposed to asbestos originating at the plant.
Plaintiffs argue, based upon the Alabama Supreme Court’s repeated
characterization of the foreseeability of an injury as the “key factor” in determining
whether a duty exists under novel factual circumstances, that this State likely will join
those jurisdictions holding that the employers of persons exposed to asbestos during
the performance of their work responsibilities owe a duty of reasonable care to nonemployees in “take-home cases” such as this one.172 See, e.g., Simpkins v. CSX Corp.,
172

See doc. no. 145 (Plaintiffs’ Brief in Opposition to Summary Judgment), at 27-30.

46

929 N.E.2d 1257, 1263-64 (Ill. App. Ct. 2010) (“[W]e believe that it takes little
imagination to presume that when an employee who is exposed to asbestos brings
home his work clothes, members of his family are likely to be exposed as well. Thus,
the general character of the harm to be prevented was reasonably foreseeable.”)
(alteration supplied); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367
(Tenn. 2008) (holding that the harm to the plaintiff was foreseeable, because she was
regularly in contact with asbestos-contaminated work clothes for extended periods
of time); Olivo v. Owens-Illinois, Inc., 895 A.2d 1143, 1149 (N.J. 2006) (holding that
a premises owner owed a duty to spouses handling asbestos-contaminated work
clothes based on the foreseeable risk of harm arising from such exposures); Zimko v.
American Cyanamid, 905 So. 2d 465, 483 (La. App. 2005) (same). In fact, “[i]n
nearly every case in which a court has used foreseeability as the primary
consideration in duty analysis, the court has recognized a duty of care in take-home
exposure cases.” Meghan E. Flinn, A Continuing War with Asbestos: The Stalemate
Among State Courts on Liability for Take-Home Asbestos Exposure, 71 WASH. & LEE
L. REV. 707, 719 (2014).
In the final analysis, the determination of the issue of whether a duty was owed

Because TVA incorporated its brief in support of summary judgment into its post-trial arguments,
this court will also consider plaintiffs’ brief in opposition to summary judgment.

47

by TVA to Mrs. Bobo and others like her under the circumstances of this case is
“strictly a legal question” to be answered by the court. DiBiasi, 988 So. 2d at 460;
see also, e.g., William L. Prosser, Palsgraf Revisited, 52 MICH. L. REV. 1, 15 (1953)
(“There is a duty if the court says there is a duty; the law, like the Constitution, is
what we make it.”).173 In exercising that responsibility, this court does not find the
cases relied upon by TVA to be persuasive predictors of what Alabama appellate
courts will hold. For example, when deciding that no duty was owed to nonemployees in a take-home exposure claim similar to the present action, the Supreme
Court of Erie County, New York (a trial court), stated that “[d]uty in negligence
cases is not defined by foreseeability of injury . . . . Rather, foreseeability determines
merely ‘the scope of the duty once it is determined to exist . . . .’” In re Eighth
Judicial District Asbestos Litigation, 815 N.Y.S.2d 815, 938-39 (N.Y. Sup. Ct. 2006)
(internal citations omitted, alteration supplied).174 Further, while the Supreme Court
173

Benjamin N. Cardozo, while serving as a Judge of the New York Court of Appeals (but
later nominated and confirmed as a Justice of the United States Supreme Court), spoke generally of
the scope of the risk of harm that must be guarded against in the classic case of Palsgraf v. Long
Island R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. Ct. App. 1928), saying that “the orbit of the danger
as disclosed to the eye of reasonable vigilance would be the orbit of the duty. . . . The risk
reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to
another or to others within the range of apprehension. . . .” Id. at 343-44, 162 N.E. at 100.
174

Indeed, New York does not include the foreseeability of harm in its calculus for
determining whether a duty exists in novel factual circumstances, as indicated by the following
quotation from Holdampf v. A.C. & S., Inc., 5 N.Y.3d 486 (N.Y. Ct. App. 2005):
The threshold question in any negligence action is: does defendant owe a
legally recognized duty of care to plaintiff? Courts traditionally fix the duty point by

48

of Georgia declined to extend an employer’s duty to provide a safe workplace beyond
its employees based on policy considerations, that court did not place the same
emphasis on foreseeability that an Alabama court would. See CSX Transportation,
Inc. v. Williams, 608 S.E.2d 208, 210 (Ga. 2005) (“[W]e decline to extend on the
basis of foreseeability the employer’s duty beyond the workplace to encompass all
who might come into contact with an employee or an employee’s clothing outside the
workplace.”). Finally, even though the California Court of Appeals assumed that a
property owner could “reasonably be expected to foresee the risk of latent disease to
a worker’s family members secondarily exposed to asbestos used on its premises,” it
concluded that “strong public policy considerations counsel against imposing a duty
of care on property owners for such secondary exposure.” Campbell v. Ford Motor
Co., 141 Cal. Rptr. 3d 390, 402-03 (Cal. Ct. App. 2012). Notably, however, the
California court did not characterize foreseeability of the risk as the “key factor” in
balancing factors, including the reasonable expectations of parties and society
generally, the proliferation of claims, the likelihood of unlimited or insurer-like
liability, disproportionate risk and reparation allocation, and public policies affecting
the expansion or limitation of new channels of liability. Thus, in determining
whether a duty exists, courts must be mindful of the precedential, and consequential,
future effects of their rulings, and limit the legal consequences of wrongs to a
controllable degree” . . . .
Further, “[f]oreseeability, alone, does not define duty — it merely determines
the scope of the duty once it is determined to exist” . . . .
Id. at 493 (quoting Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 (N.Y. Ct. App. 2001))
(alteration in original).

49

its determination.
Policy factors relied upon by jurisdictions that decline to recognize a legal duty
in take-home exposure cases include preventing unfairness to defendants and further
clogging of court dockets. This court finds, however, that other policy factors are of
higher importance in this, and similar, cases: e.g., the mandatory nature of the
alternative conduct; the fact that TVA, a government entity provably aware of OSHA
regulations (as evidenced by TVA internal memoranda reciting OSHA findings and
regulations concerning asbestos exposure and TVA’s promulgation of its own
exposure reduction policies), was in a far better position to protect Mrs. Bobo than
either James Bobo or Mrs. Bobo herself; and the relatively simple, low-cost methods
which, if implemented as directed both by federal law and TVA internal policy, may
have prevented Barbara Bobo’s contraction of mesothelioma.
In contrast to TVA, plaintiffs rely upon cases that are actually persuasive
because, in the opinions they cite, the courts emphasized the foreseeability of an
injury, while also considering public policy. See Satterfield, 266 S.W.3d at 373-75
(observing that “Tennessee’s courts rely heavily on foreseeability when determining
the existence and scope of a duty,” and that “the existence of a duty to exercise
reasonable care to avoid the risk of harm to another involves considerations of
fairness and public policy”); Olivo, 895 A.2d at 1148 (“Foreseeability is significant
50

in the assessment of a duty of care to another,” and “[o]nce the ability to foresee harm
to a particular individual has been established . . . considerations of fairness and
policy govern whether the imposition of a duty is warranted.”) (alteration supplied).
Furthermore, as the Tennessee Supreme Court recognized, there is no danger
to the business community in finding that “a sophisticated [employer] that was aware
of, or should have been aware of, the risk to others that could result from exposure
to asbestos fibers, . . . knew its employees’ work clothes contained significant
quantities of asbestos fibers, and [] understood the danger of transmitting these
asbestos fibers to others” outside the workplace, owes a duty to protect members of
its employees’ families in take-home exposure claims. Satterfield, 266 S.W.3d at
371; see also Olivo, 895 A.2d at 1150 (“Although Exxon Mobil fears limitless
exposure to liability based on a theory of foreseeability built on contact with
Anthony’s asbestos-contaminated clothing, such fears are overstated. The duty we
recognize in these circumstances is focused on the particularized foreseeability of
harm to plaintiff’s wife, who ordinarily would perform typical household chores that
would include laundering the work clothes worn by her husband.”) (emphasis
supplied); Simpkins, 929 N.E.2d at 1266 (dismissing policy concerns of “limitless
liability to ‘the entire world’” based upon the fact that “the scope of liability will be
inherently limited by the foreseeability of the harm”). Finding that employers have
51

a duty to exercise reasonable care to prevent foreseeable harm to their employees’
spouses does not raise a “specter of limitless liability.”175 A bright-line rule, limiting
liability to an employee and the members of his household (nuclear family) is both
appropriate and manageable. The liability of entities like TVA is also restricted by
the discretionary function doctrine and a plaintiff’s burden of proving that an
employer’s conduct was both the factual and proximate cause of his or her injuries.
This court also finds that the policy considerations that might weigh against the
recognition of a duty of reasonable care to family members of employees in takehome asbestos exposure cases do not outweigh either the foreseeability of the risk of
harm in a jurisdiction like Alabama that relies heavily on that consideration as “the
key factor” in its duty analysis,176 or policy considerations that weigh in favor of
175

Meghan E. Flinn, A Continuing War with Asbestos: The Stalemate Among State Courts
on Liability for Take-Home Asbestos Exposure, 71 WASH. & LEE L. REV. 707, 724 (2014).
176

In recognition of the fact that there were no clear, controlling, precedents by Alabama’s
appellate courts, and that the significance of this issue extended beyond the present case, this court
concluded following trial that the question should be certified to the State’s highest court. See, e.g.,
Jones v. Dillard’s, Inc., 331 F.3d 1259, 1268 (11th Cir. 2003) (observing 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”) (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 get 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.”). Accordingly, the following question was
presented to the Alabama Supreme Court pursuant to Article VI, § 6.02(b)(3) of the 1901 Alabama
Constitution, as amended, and Alabama Rule of Appellate Procedure 18:

52

recognizing such a duty. In the present case, TVA: treated mandatory federal
regulations as discretionary guidelines, and nullified its own exposure reduction
standards by failing to implement them; had actual knowledge that asbestos was
carcinogenic, and that its employees were daily coming into contact with that
substance and taking it home to their spouses and children; and did not use that
knowledge to enact low-cost measures to restrict airborne asbestos concentrations to
permissible levels at the Browns Ferry Nuclear Plant or prevent its employees from
transporting asbestos to their homes after work. Individuals like Mrs. Bobo — who
did not work at the nuclear plant or ever enter TVA’s premises — cannot be made
whole for TVA’s derelictions, if a common law negligence claim is unavailable.
Finally, even though the Alabama Supreme Court has not spoken to the precise
issue of duty in take-home exposure cases, it has not always limited the finding of a
legal duty to situations in which there was a contractual, or employer-employee,
relationship between an identifiable victim and the defendant. See, e.g., Wyeth v.
WHETHER A PREMISES OWNER HAS A DUTY TO PROTECT THE
FAMILY MEMBERS OF PERSONS WHO WORK ON THE PROPERTY
OWNER’S PREMISES FROM SECONDARY EXPOSURE TO A TOXIC
AGENT, SUCH AS ASBESTOS, USED DURING THE COURSE OF THE
PROPERTY OWNER’S BUSINESS?
Doc. no. 215 (Memorandum Opinion Submitting Certified Questions), at 53 (emphasis in original).
Regrettably, the Alabama Supreme Court declined to accept that question. Cf. Price v. Time, Inc.,
416 F.3d 1327, (11th Cir. 2005) (observing that, “[t]o the disappointment of the district court (and
this one as well), the Alabama Supreme Court declined to answer the certified question”) (alteration
supplied).

53

Weeks, 159 So. 3d 649, 675 (Ala. 2014) (the absence of a contractual relationship
does not mean there is no duty); Taylor v. Smith, 892 So. 2d 887, 895 (Ala. 2004)
(differentiating between situations in which the defendant did not create the risk of
harm and, thus, owed no duty to a plaintiff, and other situations in which the
defendant performs “an affirmative act which creates the risk that unidentifiable third
parties might be injured,” and stating that, under the latter circumstance, “there is,
most certainly, a duty to unidentifiable third parties who might be injured as a result”)
(emphasis in original); State Farm Fire & Casualty Co. v. Owen, 729 So. 2d 834, 839
(Ala. 1998) (“Determining whether there is a duty necessarily requires analyzing the
factual background of the case. In that sense, whether a duty exists is a mixed
question of law and fact.”).
In light of the Alabama Supreme Court’s emphasis on foreseeability, that
Court’s recognition of a duty where a defendant creates the risk of harm, and the very
serious public policy considerations at issue, this court holds that TVA owed a duty
of reasonable care to Barbara Bobo, and others like her.
B.

Did TVA Breach the Duty of Reasonable Care Owed to Barbara Bobo?
Plaintiffs contend that TVA breached its duty of care to Mrs. Bobo by failing

to prevent her exposure to asbestos fibers that contaminated her husband’s clothes
during his employment at the Browns Ferry Nuclear Plant. Plaintiffs argue that Mrs.
54

Bobo was exposed to asbestos because TVA: violated OSHA regulations concerning
the permissible levels of asbestos exposure; failed to follow mandatory directives
governing the monitoring of an employee’s exposure to asbestos (including both
OSHA regulations and TVA’s internal policies); failed to provide special, protective
clothes; failed to provide two lockers for each employee, so separated or isolated as
to prevent contamination of the employee’s street clothes from his work clothes;
failed to provide separate change rooms and showers for workers exposed to asbestos;
failed to provide facilities for laundering asbestos-contaminated clothing inside the
Browns Ferry facility, rather than being worn home and laundered there; and, failed
to administer annual medical examinations to employees exposed to airborne asbestos
fibers.177
TVA’s initial response was that plaintiffs failed to present sufficient evidence
showing that James Bobo was exposed to asbestos while working inside the Browns
Ferry Nuclear Plant.178
Because Mrs. Bobo’s alleged second hand exposures are derivative of
her husband’s occupational exposures, Plaintiffs must first prove that
her husband had occupational exposures to asbestos and that those
exposures were the result of TVA’s negligent conduct and were not, for
example, occupational exposures to asbestos at levels allowed under
OSHA regulations and TVA procedures in effect at that time. (Stip.
Fact 46, Doc. 201 at 10-11.) Plaintiffs also must show that any
177

See doc. no. 211 (Plaintiffs’ Post-Trial Brief), at 25-26.

178

See doc. no. 209 (TVA’s Post-Trial Brief), at 3.

55

exposures resulting from TVA’s negligent conduct caused the clothes
that Mr. Bobo wore home from work to be burdened with asbestos
fibers. In other words, that the occupational exposures did not occur in
a C-Zone where Mr. Bobo would have been wearing protective over
garments that would have prevented asbestos fibers from burdening his
personal clothing.
Doc. no. 209 (TVA’s Post-Trial Brief), at 3-4 (boldface emphasis in original). See
also, e.g., Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th
Cir. 1985) (“Regardless of the theory of liability in [asbestos-related tort] cases, the
threshold for every theory is proof that an injured plaintiff was exposed to asbestoscontaining products for which the defendant is responsible.”) (alteration supplied).
This court finds, however, that a preponderance of the credible evidence clearly
established that James Bobo was exposed to airborne asbestos fibers when he swept
insulation residue containing that inherently dangerous toxic substance — which was
pervasive throughout the nuclear plant, in areas other than the C-Zones — and that
he was not provided protective work-clothing and equipment, separate lockers for
work and personal clothing, showers, or on-site laundry facilities. Further, the
evidence clearly and convincingly established that Barbara Bobo was exposed to
airborne asbestos fibers over the course of more than twenty-two years, when
laundering her husband’s work clothes. Accordingly, TVA breached its duty of care
to Mrs. Bobo by failing to implement eminently reasonable and minimally expensive

56

safety procedures that would have prevented her exposure to asbestos fibers carried
home on her husband’s work clothes.
C.

Causation
As to what is the cause of an event, philosophers and logicians
may differ from jurists. John Stuart Mill, in his work on Logic, says, in
substance, that the cause of an event is the sum of all the antecedents,
and that we have no right to single out one antecedent and call that the
cause. Whether from the standpoint of philosophy or logic Mr. Mill is
right is a question which it does not concern us here to discuss. His
view cannot be adopted as a working rule by courts. On that view no
tortfeasor would be regarded as the cause of any damage. The practical
question for a jurist is whether the tortious conduct of any human being
has had such an operation in subjecting a plaintiff to damage as to make
it just that the tortfeasor should be held liable to compensate the
plaintiff.
“The lawyer cannot afford to adventure himself with
philosophers in the logical and metaphysical controversies
that beset the idea of cause.”
If, for practical legal purposes, we reject the philosophic view of
causation, and instead adopt the juristic view, it follows that the
defendant’s tort [breach of duty], in order to be regarded as the legal
cause of the damage, need not be the sole cause, need not be the only
causative antecedent. . . .

Jeremiah Smith, Legal Cause of Actions of Tort, 25 HARV. L. REV. 103, 104 (1911)
(quoting Sir Frederick Pollock, The Law of Torts 36 (6th ed. 1890)) (other citations
omitted, alteration and emphasis supplied).
More specifically, one commentator has observed that toxic tort cases such as

57

the present one
present major challenges to tort law and the judicial system. Causation
requirements pose one such challenge. Proving the cause of injuries that
remain latent for years, are associated with diverse risk factors, and
occur at background levels even without any apparent cause, is the
“central problem” for toxic tort plaintiffs. . . .
Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion,
and Statistical Evidence, YALE L.J. 376, 376-77 (1986).
In approaching the issue of causation, therefore, a distinction must be made
between “general causation,” on the one hand, and “proximate causation,” on the
other. “General causation” refers to the question of whether an allegedly toxic
substance has the potential to cause injury. In that regard, the Eleventh Circuit has
observed that
toxic tort cases usually come in two broad categories: first, those cases
in which the medical community generally recognizes the toxicity of the
drug or chemical at issue, and second, those cases in which the medical
community does not generally recognize the agent as both toxic and
causing the injury plaintiff alleges. Examples of the first type include
toxins like asbestos, which causes asbestosis and mesothelioma; silica,
which causes silicosis; and cigarette smoke, which causes cancer. . . .
McClain v. Metabolife International, Inc., 401 F.3d 1233, 1239 (11th Cir. 2005)
(emphasis and ellipsis supplied); see also, e.g., Chapman v. Procter & Gamble
Distributing, LLC, 766 F.3d 1296, 1303 (11th Cir. 2014) (same); doc. no. 201
(Agreed and Stipulated Facts), ¶ 82 (“[A]sbestos is generally recognized in the
58

medical community as having the potential to cause mesothelioma.”) (alteration
supplied).
In order to recover on a claim of negligence, however, plaintiffs must also
prove “proximate causation” by demonstrating that TVA’s conduct “naturally and
probably brought about the harm,” and that “the harm would not have happened
without the conduct.” 2 Alabama Pattern Jury Instructions — Civil § 33.00 (3d ed.
2013). Accord Lingefelt v. International Paper Co., 57 So. 3d 118, 122-23 (Ala. Civ.
App. 2010) (“Proximate cause is an act or omission that, in a natural and continuous
sequence, unbroken by any new independent causes, produces the injury and without
which the injury would not have occurred.”) (quoting Martin v. Arnold, 643 So. 2d
564, 567 (Ala. 1994)); Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala.
1976) (“Liability will be imposed only when negligence is the proximate cause of
injury; injury must be a natural and probable consequence of the negligent act or
omission which an ordinarily prudent person ought reasonably to foresee would result
in injury.”); City of Mobile v. Havard, 268 So. 2d 805, 810 (Ala. 1972) (“For an act
to constitute actionable negligence, there must be not only some causal connection
between the negligent act complained of and the injury suffered, but also the
connection must be by a natural and unbroken sequence, without intervening,
efficient causes, so that, but for the negligence of the defendant, the injury would not
59

have occurred.”).
Even though the foregoing standards for determining proximate causation are
appropriate in most actions based upon a theory of negligence, the parties do not
agree on the question of whether Alabama would apply traditional “but-for”
causation, or “substantial factor” causation, where multiple exposures to a toxic
agent, such as airborne asbestos fibers, combine to produce the plaintiffs’ injuries.179
The Alabama Supreme Court has addressed that issue, but did so in the context of
maritime law, in connection with the claims asserted against shipowners by three
former seamen under the Jones Act, 3 U.S.C. § 688,180 and alleging injury as a result
of exposure to asbestos products while serving on board the defendants’ ships.
Sheffield v. Owens–Corning Fiberglass Corp., 595 So. 2d 443 (Ala. 1992). The
shipowners sought indemnity and contribution under principles of maritime law, and
filed third-party complaints against twenty-seven entities that manufactured asbestoscontaining products that could have been on board the ships on which the plaintiffs
served. In turn, the plaintiffs amended their complaints to allege claims under general

179

TVA incorporates its summary judgment briefing regarding the causation standard that
should apply in this case. Doc. no. 209 (TVA’s Post-Trial Brief), at 8 n.9. Plaintiffs, likewise,
incorporate their summary judgment briefing regarding that issue. Doc. no. 213 (Plaintiffs’
Response to TVA’s Post-Trial Brief), at 7-8.
180

The Jones Act “extend[s] to seamen the rights accorded railway workers under the Federal
Employers’ Liability Act, 45 U.S.C. §§ 51-60.” Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th
Cir. 1975), clarified on other grounds, 546 F.2d 675 (5th Cir. 1977) (alteration supplied).

60

maritime law against the same twenty-seven manufacturers. See id. at 446.
Several of the manufacturers, including Crane and OCF [OwensCorning Fiberglass Corporation], moved for summary judgments on the
ground that there was insufficient evidence linking the plaintiffs’
injuries to any particular manufacturer’s product. On February 22, 1991,
the trial court granted the motions of Crane and OCF and certified its
summary judgments as final, pursuant to Ala.R.Civ.P. 54(b). The issues
presented on appeal from those summary judgments are (1) whether
maritime law controls the claims of the plaintiffs and shipowners against
OCF and Crane, and (2) whether evidence of a causal connection
between products manufactured by Crane and OCF was sufficiently
established in each plaintiff’s case to preclude summary judgment.
Id. at 446-47 (alteration supplied). The Alabama Supreme Court initially addressed
the law that applied to the issues raised by the shipowners’ indemnity claims against
third-party defendants Owens-Corning Fiberglass Corporation (“OCF”) and another
manufacturer of asbestos products, John Crane, Inc. (“Crane”), and concluded that
those claims — like the underlying Jones Act claims of the seamen against the
shipowners — were governed by federal maritime law:
Although the claims of the plaintiffs against the shipowners for
Jones Act negligence and unseaworthiness are not at issue in this appeal,
it is undisputed that federal law governs those claims. It follows,
therefore, that federal maritime law also governs the indemnity claims
of the shipowners against OCF and Crane. Vaughn v. Farrell Lines,
Inc., 937 F.2d 953, 956 (4th Cir. 1991) (where the “underlying tort
claims from which the indemnity claim is derived . . . are maritime tort
claims,” the “‘indemnity claim arising therefrom is similarly a maritime
claim’”); White v. Johns-Manville Corp., 662 F.2d 243, 247 (4th Cir.
1981); Swogger v. Waterman S.S. Corp., 151 A.D.2d 100, 546 N.Y.S.2d
80 (1989); T. Schoenbaum, Admiralty and Maritime Law § 4-15, at 146
61

(1987) (“There is admiralty jurisdiction over controversies involving
contribution and indemnification if jurisdiction exists over the
underlying primary cause of action”).
In our view, the underlying claims in this suit are the plaintiffs’
claims against the shipowners alleging Jones Act negligence and
unseaworthiness; therefore, the above-cited authorities fully answer the
question regarding the applicable law. However, because the strenuous
arguments of OCF and Crane focus principally on the product liability
claims involved in this suit, as if those claims formed the “underlying
primary cause of action,” we will, out of deference to OCF and Crane,
inquire whether the product liability claims of the plaintiffs against OCF
and Crane, standing alone, would be subject to admiralty jurisdiction.
Sheffield, 595 So. 2d at 447 (footnotes omitted).
The maritime law basis of the Sheffield opinion confused the issue of whether
its causation principles also applied in a case like the present one. Indeed, TVA
argues that “[t]here is no indication in that opinion that the Alabama Supreme Court
would deviate from Alabama’s traditional causation standard (requiring conduct
without which the injury would not have occurred) in an asbestos case against a
premises owner governed by Alabama negligence law.”181
Accordingly, in an attempt to ascertain the standard that the Alabama Supreme
Court would apply in cases involving multiple exposures to a toxic agent, this court
certified the following question to the Alabama Supreme Court:

181

Doc. no. 128 (TVA’s Brief in Support of Summary Judgment), at 14 n.6 (emphasis
supplied); see also doc. no. 209 (TVA’s Post-Trial Brief), at 8 n.9 (“TVA incorporates its summary
judgment briefing regarding the causation standard that should apply in this case.”).

62

WHAT CAUSATION STANDARD APPLIES WHEN MULTIPLE
EXPOSURES TO A TOXIC AGENT, SUCH AS ASBESTOS,
COMBINE TO PRODUCE THE PLAINTIFF’S INJURY?
Doc. no. 215 (Memorandum Opinion Submitting Certified Questions), at 53
(emphasis in original). Regrettably, the Alabama Supreme Court declined to accept
the question. Even so, its order included citations that directed this court to
reconsider the Sheffield opinion, and its proper scope:
IT IS FURTHER ORDERED that the Court declines to accept the
second certified question. See Sheffield v. Owens-Corning Fiberglass
Corp., 595 So. 2d 443, 450 (Ala. 1992). See also Owens-Corning
Fiberglass Corp. v. Gant, 662 So. 2d 255, 256 (Ala. 1995).
Doc. no. 217 (Alabama Supreme Court Order Declining Certified Questions) (all
emphasis in original). The Sheffield pincite references Part III of the Court’s opinion,
discussing “PROOF OF CAUSATION” in the following manner:
At the outset, we point out that although these three plaintiffs
have outstanding Jones Act claims against their employers, the
applicable standard of proof of causation in all these claims against
nonemployer manufacturers is the standard of proof applicable under
general principles of maritime law, not, as the shipowners seem to
imply, under the standard of proof for Jones Act negligence. See Brief
of Appellants, at 31.
The principles of maritime law are “[d]rawn from state and
federal sources” and represent an “amalgam of traditional
common-law rules, modifications of those rules, and newly created
rules.” East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S.
858, 864-65, 106 S. Ct. 2295, 2299, 90 L. Ed. 2d 865 (1986). In
formulating the corpus of maritime law, “[a]dmiralty courts have felt
63

free to cull what they considered the best principles from the
decisions of various courts and from treatise and textwriters.” Watz
v. Zapata Off-Shore Co., 431 F.2d 100, 113 (5th Cir. 1970). Courts
sitting in admiralty, therefore, apply “the general law of torts” when
those general principles are consistent with admiralty’s policies and
purposes. Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d
968, 977 (5th Cir. 1978); Spinks v. Chevron Oil Co., 507 F.2d 216, 222,
222 n.8 (5th Cir. 1975), clarified on other grounds, 546 F.2d 675 (5th
Cir. 1977).
The general tort law to which the admiralty courts often look
for the substantive standards of proof of causation is the
Restatement (Second) of Torts § 431 (1965). See, e.g., Chavez v. Noble
Drilling Corp., 567 F.2d 287 (5th Cir. 1978); Harrison v. Flota
Mercante Grancolombiana, S.A., 577 F.2d 968 (5th Cir. 1978); Spinks
v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975), clarified on other
grounds, 546 F.2d 675 (5th Cir. 1977); Watz v. Zapata Off-Shore Co.,
431 F.2d 100 (5th Cir. 1970); Anderson v. Whittaker Corp., 692 F. Supp.
734 (W.D. Mich. 1987), aff’d, 894 F.2d 804 (6th Cir. 1990).
Section 431 provides that “[t]he actor’s negligent conduct is
a legal cause of harm to another if . . . his conduct is a substantial
factor in bringing about the harm.” (Emphasis added.) In order to
prevail, the plaintiff “must make it appear that it is [1] more likely
than not that the conduct of the defendant was [2] a substantial
factor in bringing about the harm.” Restatement (Second) of Torts §
433B, comment a (emphasis added).
Sheffield, 595 So. 2d at 450 (italicized emphasis and bracketed alterations in original,
boldface emphasis supplied, footnotes omitted). The emphasized language from the
Sheffield Court’s discussion of causation hollows TVA’s contention that substantial
factor causation is confined to the context of maritime cases. If the Alabama Supreme
Court desired to indicate that the concept of substantial factor causation applies only
64

to maritime cases, then it would not have instructed this court to “See Sheffield v.
Owens-Corning Fiberglass Corp., 595 So. 2d 443, 450 (Ala. 1992),” in response to
this court’s certification of a question governed by Alabama negligence law.
Moreover, as plaintiffs noted, even though Sheffield was a maritime case, the
Alabama Supreme Court followed the rationale of that decision in the second case
cited in the Court’s response to this court’s certified question, i.e., “Owens-Corning
Fiberglass Corp. v. Gant, 662 So. 2d 255, 256 (Ala. 1995),” which determined the
sufficiency of the evidence needed to create a jury question on proximate cause in an
asbestos case.182 See doc. no. 145 (Plaintiff’s Brief in Opposition to Summary
Judgment), at 24-25.
TVA contends that, even if the Alabama Supreme Court adopted substantial

182

Gant was an appeal that arose from the trial of four asbestos personal injury actions that
had been consolidated for trial, and in which the jury returned verdicts in favor of the plaintiffs.
Owens Corning Fiberglass Corporation (“OCF”) contended that the trial judge had erred when
denying its motion for a directed verdict on the issue of proximate cause, and argued that plaintiffs
had failed to prove sufficient exposure to OCF’s asbestos-containing product, “Kaylo.” The
Alabama Supreme Court rejected that argument, and cited its opinion in Sheffield approvingly.
OCF contends that it was entitled to a directed verdict on the issue of
proximate cause, arguing that the plaintiffs failed to prove sufficient exposure to
OCF’s asbestos-containing product, Kaylo. We have carefully and thoroughly
studied the record. We conclude that the trial court properly sent the cases to the
jury. See Sheffield v. Owens–Corning Fiberglass Corp., 595 So. 2d 443, 456 (Ala.
1992); Rule 50, A. R. Civ. P.; K.S. v. Carr, 618 So. 2d 707, 713 (Ala. 1993); Bailey
v. Avera, 560 So. 2d 1038, 1039 (Ala. 1990); Woodruff v. Johnson, 560 So. 2d 1040,
1041 (Ala. 1990); Timmerman v. Fitts, 514 So. 2d 907, 910 (Ala. 1987).
Gant, 662 So. 2d at 256.

65

factor causation as the proper standard, plaintiffs failed to satisfy that standard under
either “the Bostic ‘doubling of the risk’ standard,”183 or “the Lohrmann ‘frequency,
regularity, and proximity’ test.”184 Doc. no. 209 (TVA’s Post-Trial Brief), at 8-11.
However, neither the Alabama Supreme Court, nor any of the lower courts in that
State, has ever cited either the Bostic “doubling of the risk” standard, or the
183

See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014), concluding that

in all asbestos cases involving multiple sources of exposure, including mesothelioma
cases, the standards for proof of causation in fact are the same. In reviewing the legal
sufficiency of the evidence:
•

proof of “any exposure” to a defendant’s product will not suffice and
instead the plaintiff must establish the dose of asbestos fibers to which he was
exposed by his exposure to the defendant’s product;

•

the dose must be quantified but need not be established with
mathematical precision;

•

the plaintiff must establish that the defendant’s product was a
substantial factor in causing the plaintiff’s disease;

•

the defendant’s product is not a substantial factor in causing the
plaintiff’s disease if, in light of the evidence of the plaintiff’s total exposure
to asbestos or other toxins, reasonable persons would not regard the
defendant’s product as a cause of the disease; [and]

•

to establish substantial factor causation in the absence of direct
evidence of causation, the plaintiff must prove with scientifically reliable
expert testimony that the plaintiff’s exposure to the defendant’s product more
than doubled the plaintiff’s risk of contracting the disease.

Id. at 353 (emphasis and alteration supplied); see also doc. no. 209 (TVA’s Post-Trial Brief), at 8-9
(same).
184

See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986) (“To
support a reasonable inference of substantial causation from circumstantial evidence, there must be
evidence of exposure to a specific product on a regular basis over some extended period of time in
proximity to where the plaintiff actually worked.”).

66

Lohrmann “frequency, regularity, and proximity” test.
In summary, based upon the guidance contained in the Alabama Supreme
Court’s pincite references to its holdings in Sheffield and Gant, it appears that the
language of Section 431 of the Restatement (Second) of Torts, without
embellishment, states the proper causation standard in a negligence case involving
multiple exposures to asbestos: that is, “the actor’s negligent conduct is a legal cause
of harm to another if . . . his conduct is a substantial factor in bringing about the
harm.” See Restatement (Second) of Torts § 431 (1965) (emphasis supplied). By
definition, substantial factor causation takes more than one exposure or cause into
account. And, when a plaintiff proves by a preponderance of the evidence that one
particular exposure, or pattern of exposures, was a “substantial factor in bringing
about the harm,” then that plaintiff satisfies the element of proximate causation. See
Holland v. Armstrong International, Inc., No. 2:11–67221–ER, 2012 WL 7761438,
at *1 (E.D. Pa. Nov. 28, 2012) (observing that, even though the Alabama Supreme
Court had not definitively addressed the causation standard to be applied in asbestos
cases, that Court “has held under maritime law that proof that defendant’s
asbestos-containing product caused plaintiff’s injuries is an essential element to any
claim based on asbestos exposure”).
TVA additionally argues that there is no reason to deviate from Alabama’s
67

traditional “but-for” causation standard, and that the Alabama Supreme Court will
adopt the following adaptation of that standard in a multiple exposure toxic tort case:
either “(1) that the illness would not have occurred without exposure to the
defendant’s asbestos or (2) that exposure to the defendant’s asbestos was
independently sufficient to cause the illness.” Doc. no. 128 (TVA’s Brief in Support
of Summary Judgment), at 17 (emphasis supplied).185 See, e.g., Ford Motor Co. v.
Boomer, 736 S.E.2d 724 (Va. 2013); Wilcox v. Homestake Mining Co., 619 F.3d
1165, 1169 (10th Cir. 2010) (applying New Mexico but-for causation standard to a
toxic tort case involving radiation exposure). The standard advocated by TVA
appears, however, to be the minority position in asbestos cases. See, e.g., Lindstrom
v. A-C Product Liability Trust, 424 F.3d 488, 492 (6th Cir. 2005) (applying
substantial factor test under maritime law); Lohrmann v. Pittsburgh Corning Corp.,
782 F.2d 1156, 1162-63 (4th Cir. 1986) (upholding substantial factor test in a
Maryland asbestos case); Rando v. Anco Insulations, Inc., 16 So. 3d 1065, 1088 (La.
2009); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773-74 (Tex. 2007);
Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 (Cal. 1997); Thacker v. UNR
Indus., Inc., 603 N.E.2d 449, 455 (Ill. 1992).
Moreover, the causation standard advocated by TVA does not “recognize the
185

See also doc. no. 209 (TVA’s Post-Trial Brief), at 8 n. 9 (“TVA incorporates its summary
judgment briefing regarding the causation standard that should apply in this case.”).

68

proof difficulties accompanying asbestos claims. The long latency period for
asbestos-related diseases, coupled with the inability to trace precisely which fibers
caused disease and from whose product they emanated, make this process inexact.”
Borg-Warner Corp., 232 S.W.3d at 772. The Illinois Supreme Court addressed some
of those issues in the Thacker case, saying that:
Courts throughout the country . . . have struggled with how a
plaintiff in an asbestos case can fairly meet the burden of production
with regard to causation. Several factors complicate the analysis . . . .
First, because asbestos fibers are friable and may float in the air, it is
possible that even those who do not come into direct physical contact
with asbestos products may suffer from asbestos poisoning. Second,
due to the microscopic size of asbestos fibers, asbestos cannot always be
seen drifting in the air or entering a plaintiff’s body. The small size of
these fibers also means that asbestos fibers from different sources are
generally indistinguishable from one another, even when removed from
a plaintiff’s body and examined through a microscope. Third, asbestos
injury takes an extended time period to manifest itself. Evidence
presented to the jury showed that the time between when asbestos fibers
are first inhaled and when scarring in the lungs becomes symptomatic
is commonly between 25 and 30 years. This means that a plaintiff
injured by asbestos fibers often does not know exactly when or where
he was injured and therefore is unable to describe the details of how
such injury occurred. In addition, we note that even when a plaintiff is
able to narrow the circumstances of exposure to a single event or
circumstance, the extended passage of time between exposure and
illness often means that witnesses are no longer readily available or that
the memories of those who are available have become unreliable.
Thacker, 603 N.E.2d at 455-56 (emphasis and alterations supplied).
In light of such issues, as well as the Alabama Supreme Court’s apparent

69

adoption of Sheffield’s “substantial factor causation” standard in a case involving jury
verdicts against a major manufacturer of asbestos products and in favor of plaintiffs
who had sustained personal injuries as a result of exposure to that company’s asbestos
products, Owens-Corning Fiberglass, Corp. v. Gant, supra, this court presumes that
the Alabama Supreme Court would apply the substantial factor causation standard in
cases like this one.
Under that standard, plaintiffs must show that TVA’s conduct, more likely than
not, was a substantial factor in causing Mrs. Bobo’s harm. See Sheffield, 595 So. 2d
at 450. TVA argues that plaintiffs cannot meet that standard, because they did not
offer sufficient evidence “that Mr. Bobo experienced occupational exposures to
asbestos at [the Browns Ferry Nuclear Plant], and no evidence quantifying the amount
of asbestos fibers that potentially burdened his personal clothing” to satisfy the
“frequency, regularity, and proximity” test.186
Contrary to TVA’s argument, however, a single exposure to asbestos fibers can
be, under Alabama law, a “substantial factor” contributing to the development of
mesothelioma, without having to satisfy either Bostic’s stringent “doubling of the
risk” standard, or Lohrmann’s “frequency, regularity, and proximity” test. Indeed,

186

Doc. no. 209 (TVA’s Post-Trial Brief), at 8-11 (quoting Bostic v. Georgia-Pacific Corp.,
439 S.W.3d 332, 353 (Tex. 2014), and Lohrmann v. Pittsburgh Corning Corp., 782 F.3d 1156 (4th
Cir. 1986)).

70

the Alabama Supreme Court observed in its Sheffield opinion that evidence showing
that a plaintiff was “close to” a person who worked with asbestos insulation, “coupled
with expert testimony that ‘each and every exposure to asbestos contributes in a
causally significant and substantial manner to asbestos-related lung impairment,’”
is sufficient to find that “airborne asbestos fibers from [the defendant’s] product
[were] a substantial factor in producing the disease from which [the plaintiff] claims
to suffer.” Sheffield, 595 So. 2d at 456 (emphasis and alterations supplied). In that
regard, the evidence in this case established that one of Mr. Bobo’s primary duties
during the years that he worked in the Browns Ferry Nuclear Plant was cleaning up
the residue left by insulators and asbestos workers. Further, some of the residue he
swept from the floor contained asbestos, and fibers of that toxic substance clung to
his work clothing. Mr. Bobo came home from work wearing “dusty” clothing, and
Mrs. Bobo laundered that clothing twice each week for more than twenty-two years.
In addition, this court previously found, based upon the testimony of plaintiffs’
expert, Dr. Eugene Mark, that studies in generally-accepted scientific literature link
mesothelioma to asbestos exposure from laundering the clothes of a person who, like
Mr. Bobo, worked with asbestos. One study relied upon by Dr. Mark (Gunnar
Hillerdal’s article entitled “Mesothelioma Cases Associated with Non-Occupational
and Low-Dose Exposures”) reported that asbestos fiber concentrations in domestic
71

exposure cases might be as high as in occupational exposure cases.187 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.”188 Dr. Mark ultimately
concluded, based upon his review of depositions, medical records, and other materials
in the case, that Mrs. Bobo’s exposure to asbestos fibers that originated in the Browns
Ferry Nuclear Plant, but which were bought into her home on her husband’s work
clothes, was a substantial factor contributing to cause the disease that claimed her life,
malignant pleural mesothelioma.
TVA contends, nevertheless, that Dr. Mark’s testimony did not prove causation
because he did not opine that Mrs. Bobo’s mesothelioma was caused by her exposure
to non-discretionary asbestos: i.e., a concentration of asbestos fibers above the
permissible exposure limits established by mandatory federal regulations:
At all times during Mr. Bobo’s TVA employment, the mandatory
Federal regulations applicable to TVA allowed for the release (and
resultant employee exposure) of “some” asbestos fibers. (Stip. Fact 46,
Doc. 201 at 10-11); see also Botts v. United States, No. C12-1943JLR,
2013 WL 6729002, at *10 (W.D. Wash. Dec. 20, 2013) (holding in
mesothelioma case involving the discretionary function doctrine that
“the Navy’s rules were not intended to prevent all asbestos
contamination”). In Botts, plaintiffs’ expert witness did not distinguish
between actionable exposures (e.g., exposures for which the government
187

Trial Transcript, Day 1, at 158.

188

Id. (alteration supplied).

72

may not be found liable on discretionary function grounds [sic]), on the
one hand, and on-actionable exposures, on the other. Without this
distinction, plaintiffs’ expert failed to show that plaintiff’s [sic]
mesothelioma was caused by any actionable exposures from mandatory
rule violations. Botts, 2013 WL 6729002, at *9 (granting discretionary
function immunity to the Navy because plaintiff did not present
sufficient causation evidence linking plaintiff’s mesothelioma to
exposures arising from mandatory rule violations; “[o]nly the percentage
of [plaintiff’s] exposure to asbestos at the Shipyard due to rule
violations is relevant to the causation analysis”). In the absence of such
distinction, the extent to which actionable exposures contributed to
plaintiff’s disease “amounts to little more than a guessing game.” Id. at
*10.
Here, the parties have stipulated that “the OSH Act of 1970,
OSHA regulations, and TVA procedures allow for occupational
exposures to asbestos at levels between zero and the permissible
exposure levels (PELs) in effect at the time of the occupational
exposure.” (Stip. Fact 46, Doc. 201 at 10-11.) As in Botts, Plaintiffs
failed to meet their causation burden because they offered no expert
testimony that distinguished between legally permissible exposures to
asbestos (e.g., exposures below a PEL) and alleged exposures in
violation of a mandatory Federal obligation (e.g., exposures in excess of
a PEL).189
TVA’s internal policies, however, prohibited the activities that led to Mr. Bobo
taking asbestos fibers home, on his work clothes, and thereby exposing Mrs. Bobo
to the inherently dangerous toxic substances. In light of those policies, it is
inconsequential that Dr. Mark did not opine that Mrs. Bobo’s exposure to asbestos
was above the permissible exposure limits established by the Occupational Safety and

189

Doc. no. 209 (TVA’s Post-Trial Brief), at 11-12 (first two alterations supplied, last two
alterations in original).

73

Health Administration, because TVA had no discretion to expose Mrs. Bobo to any
asbestos when Mr. Bobo left the Browns Ferry Nuclear Plant.
Finally, TVA argues that Dr. Mark’s opinion testimony is not reliable because
he opined that
all exposures to asbestos preceding a mesothelioma diagnosis “that are
reasonable or significant . . . contribute to the cause of the
mesothelioma.” Dr. Mark does not, however, quantify the number of
fibers or level of exposure that he considers to be significant other than
to acknowledge that it must be greater than a single fiber.
Doc. no. 209 (TVA’s Post-Trial Brief), at 12-13 (quoting Trial Transcript, Day 1, at
77) (ellipsis in original). This court previously rejected TVA’s argument when it was
raised in TVA’s motion to exclude Dr. Mark’s specific causation opinion.190 In doing
so, this court held that
Dr. Mark did not opine that every asbestos fiber inhaled causes
mesothelioma, or that the inhalation of a single asbestos fiber was
sufficient to cause mesothelioma. Instead, based upon a review of the
report, the court concludes that Dr. Mark’s opinion, in sum, is that each
“significant” exposure to asbestos constitutes a substantial contributing
factor to the development of diffuse malignant mesothelioma. Dr. Mark
defined “significant” exposures as the type of exposures which have
been proven by science to cause mesothelioma, including those rising
to the level of occupational or para-occupational exposures. In Dr.
Mark’s opinion, each of those “significant” exposures contributes to the
total dose of asbestos fibers that causes diffuse malignant mesothelioma
in a given patient and, therefore, shortens the period of time necessary
for the disease to develop. Therefore, Dr. Mark concluded that each
significant exposure to asbestos is a substantial contributing factor to the
190

See doc. no. 129 (Motion to Exclude); doc. no. 188 (Order Denying Motion to Exclude).

74

development of the disease that actually occurred, when it occurred.
In addition, both the former Fifth Circuit and the Alabama
Supreme Court have accepted expert testimony that each exposure to
asbestos can contribute to the development of asbestos-related diseases.
See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083
(5th Cir. 1973) (“[T]he effect of the disease may be cumulative since
each exposure to asbestos dust can result in additional tissue changes.”)
(alteration supplied); Sheffield v. Owens-Corning Fiberglass, 595 So. 2d
443, 456 (Ala. 1992) (holding that a jury question existed regarding
causation because of the plaintiff’s expert’s opinion that each exposure
to asbestos was causative).
Further, the court does not find Dr. Mark’s opinions regarding the
cumulative nature of asbestos diseases and the effect that each
significant exposure of asbestos has on the development of such
diseases to be inherently unreliable. Indeed, Dr. Mark not only provided
an extensive summary of both James and Barbara Bobo’s exposures to
asbestos as a result of Mr. Bobo’s employment with TVA, but also
ample citations to scientific literature and studies to support each of the
underlying bases to his opinion. In addition, Dr. Mark devoted an entire
section of his report to scientific studies regarding the risks of household
exposures to asbestos from laundering clothing laden with asbestos. Dr.
Mark also relied on numerous epidemiological studies finding that even
relatively low cumulative exposures to asbestos can cause
mesothelioma.
Doc. no. 188 (Order Denying Motion to Exclude), at 20-22 (alteration, emphasis, and
footnote in original). In other words, this court concludes that Dr. Mark did not
substitute the adjective “significant” for the phrase “single fiber.” Instead, he defined
“significant exposures” as those which have been proven by science to cause
mesothelioma, including those rising to the level of occupational or para-occupational

75

exposures — such as those exposures shown in this case, through Mrs. Bobo’s
practice of laundering her husband’s dirty work clothing twice each week, for more
than twenty-two years, in a small, confined, four-by-five foot space.
Based upon the evidence presented, this court concludes that plaintiffs have
established that Barbara Bobo’s exposure to asbestos originating in TVA’s Browns
Ferry Nuclear Plant and carried home on her husband’s work clothing was, more
likely than not, a substantial factor contributing to the development of the disease that
claimed her life and, consequently, the proximate cause of her injuries.
D.

Statute of Limitations
TVA contends that “injuries arising from asbestos exposure that occurred prior

to May 19, 1980, are time barred if they were not brought within one year of the date
of exposure,” and that “Plaintiffs introduced insufficient evidence at trial showing
that Mr. Bobo worked with or around asbestos containing materials after May 19,
1980.”191 Contrary to those assertions, however, plaintiffs established that James
Bobo was exposed to asbestos into at least the mid-to-late 1980s.192
Alabama Code § 6-2-30(b) provides that, on May 19, 1980 and after, actions
for asbestos exposure “shall be deemed to accrue on the first date the injured party,
through reasonable diligence, should have reason to discover the injury giving rise
191

Doc. no. 209 (TVA’s Post Trial Brief), at 19.

192

See supra Part III.C.

76

to such civil action.” Personal injury claims must be brought within two years of
accrual. Ala. Code § 6-2-38 (1975). Barbara Bobo first discovered her injury in
November of 2011, when she was diagnosed with mesothelioma.193 This lawsuit was
filed less than one year later, on May 21, 2012.194 Accordingly, plaintiffs are allowed
to recover for all injuries proximately caused by her exposure. See Cazalas v. JohnsManville Sales Corp., 435 So. 2d 55, 57-58 (Ala. 1983) (“[W]e rule that the plaintiffs
should not be limited to a recovery for injuries occurring after May 19, 1979, but
should be allowed to recover all injuries proximately caused by exposure to
asbestos”) (alteration supplied, emphasis in original).
E.

Discretionary Function Doctrine
This court previously dealt extensively with the contours of the “discretionary

function” exception to the tort liability of governmental entities when ruling upon
TVA’s first motion for summary judgment.195 That analysis will not be reiterated

193

Trial Transcript, Day 1, at 190; see also doc. no. 83-1 (Deposition of Barbara Bobo), at
40-41 (stating that a physician pronounced the diagnosis of “pleural mesothelioma” in November
of 2011).
194

See doc. no. 1 (Complaint).

195

See doc. no. 69 (“TVA’s Motion for Summary Judgment on Discretionary Function
Grounds”), and doc. no. 174 (Memorandum Opinion and Order), at 21-56 (subsequently reported
as Bobo v. AGCO Corp., 981 F. Supp. 2d 1130, 1143-59 (N.D. Ala. 2013) (Smith, J.)). Pursuant to
the discretionary function doctrine, the United States is not liable for “[a]ny claim . . . based upon
the exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a) (1948) (alteration and emphasis supplied). See also Mays
v. Tennessee Valley Authority, 699 F. Supp. 2d 991, 1006 (E.D. Tenn. 2010).

77

here, except to say in summary that the claims surviving summary judgment included
plaintiffs’ contentions that TVA exceeded its discretion by violating regulations
promulgated by the Occupational Safety and Health Administration and TVA’s own,
internal guidelines: (1) setting a mandatory, numeric limit for employees’ exposure
to asbestos fibers; (2) governing the means of monitoring and determining the
concentration of airborne asbestos fibers in the work environment; (3) requiring
protective equipment and clothing, as well as separate lockers and shower facilities
for employees exposed to asbestos fibers; and (4) mandating annual medical
examinations for all employees whose work duties exposed them to airborne asbestos
fibers. See doc. no. 174 (Memorandum Opinion and Order), at 36-56 (subsequently
reported as Bobo v. AGCO Corp., 981 F. Supp. 2d 1130, 1150-59 (N.D. Ala. 2013)
(Smith, J.)).
The trial evidence established that TVA exceeded its discretion by violating
OSHA regulations and its own internal policies regarding three separate activities.
First, prior to October 1, 1980, TVA’s occupational health and safety program was
required to be consistent with OSHA standards, see Executive Order 11612, 36 Fed.
Reg. 13891 (July 28, 1971). On and after October 1, 1980, TVA’s occupational
health and safety program was required to comply with those standards. See
Executive Order 12196, 45 Fed. Reg. 12769 (Feb. 26, 1980). Although the OSHA
78

standard for permissible exposure levels to asbestos was 2 fibers per cubic centimeter
of air in 1980, see 29 C.F.R. § 1910.93a(b)(2) (1972), recodified as 29 C.F.R. §
1910.1001 (1975), TVA set a standard for permissible levels at 5 fibers per cubic
centimeter.196
Second, TVA failed to follow mandatory directives governing the monitoring
of each employee’s exposure to asbestos. The 1972 OSHA asbestos standard
provided that “[a]ll determinations of airborne concentrations of asbestos fibers shall
be made by the membrane filter method at 400–450x (magnification) (4 millimeter
objective) with phase contrast illumination,” and that monitoring should occur within
six months of publication of the asbestos standard, and repeated every six months for
exposed employees. 29 C.F.R. §§ 1910.93a(e), (f) (1972), recodified as 29 C.F.R. §
1910.1001 (1975) (alteration supplied). Further, the 1987 TVA guidelines provided
that employees with “any exposure” to asbestos must be monitored to determine their
exposure levels.197 Despite those requirements, no one within the Browns Ferry
Nuclear Plant conducted an analysis of the airborne concentrations of asbestos fibers
prior to October of 1979. Instead, the concentration of airborne asbestos fibers to
which TVA employees were exposed was determined by a visual inspection
conducted by supervisory personnel, who were not provided objectively meaningful
196

See Plaintiffs’ Exhibit 534.

197

Plaintiffs’ Exhibit 542, at 6-7.

79

criteria to consider in “estimating” the extent of exposure. Further, TVA only
conducted asbestos air monitoring of three employees at Browns Ferry in 1980, eight
employees in 1981, and five employees in 1982. A 1988 internal review determined
that asbestos monitoring within the nuclear facility “ha[d] been very limited and [did]
not meet the monitoring requirements of the OSHA asbestos standard.”198
Finally, TVA failed to provide either protective equipment and clothing, or
separate lockers and shower facilities for employees exposed to asbestos fibers as
required by OSHA regulations and TVA’s own internal policies. For employees
whose exposures exceeded the limits prescribed by OSHA regulations, TVA was
required to provide special work clothing such as coveralls, changing rooms, and two
lockers for each exposed employee, and launder asbestos-contaminated clothing
within the Browns Ferry facility, in order to prevent asbestos fibers exceeding the
prescribed exposure limits from being carried off TVA property on the clothing of
employees. 29 C.F.R. §§ 1910.93a(d) (1972), recodified as 29 C.F.R. § 1910.1001
(1975). Further, the 1974 TVA asbestos policy stated that “[e]mployees engaged in
. . . the removal or demolition of asbestos insulation or coverings . . . shall be
provided respiratory protection and special clothing.”199 That same policy also
required employees exposed to asbestos in concentrations greater than ten fibers per
198

Plaintiffs’ Exhibit 536, at 7 (alterations supplied).

199

Plaintiffs’ Exhibit 528, at 988 (alteration supplied).

80

cubic centimeter to be provided with special clothing, changing rooms, two lockers,
and separate shower facilities, and employees exposed to undetermined
concentrations of asbestos were required to be provided with protective clothing until
tests established that their work activities did not expose them to concentrations
above ten fibers per cubic centimeter.200 TVA’s 1979 Division of Power Safety and
Hazard Control Manual provided that “[e]ach employee exposed to airborne
concentrations of asbestos shall be provided with two separate lockers. One locker
shall be used for street clothes and must not be contaminated with asbestos.”201 That
policy did not set a permissible exposure limit for application in the Browns Ferry
Nuclear Plant.202 A 1979 internal plant memorandum stated that “[l]ocker and shower
facilities separate from other plant facilities should be provided for all insulators and
designated cleanup laborers.”203 Despite those federal requirements and internal
regulations, TVA did not provide laborers with protective clothing, separate changing
rooms, lockers, or showers, unless they were working in a C-Zone.204 As previously
shown, however, asbestos was present above the threshold limits in places other than

200

Id. at 988-90.

201

Plaintiffs’ Exhibit 529, at 2966 (alteration supplied).

202

Trial Transcript, Day 2, at 73-74.

203

Plaintiffs’ Exhibit 530 (alteration supplied).

204

See Trial Transcript, Day 2, at 13, 16; Plaintiffs’ Exhibit 530.

81

C-Zones.205
TVA contends that it is not sufficient for plaintiffs “to merely show conduct
in violation of a rule; they must also show that Mrs. Bobo’s exposures resulting from
that non-discretionary conduct caused her illness.”206

The court has already

determined, however, that plaintiffs demonstrated by a preponderance of the evidence
that: (1) James Bobo worked within areas of the plant where he was exposed to
asbestos in excess of the permissible exposure limits; (2) notwithstanding this, TVA
failed to provide him the required protective clothing, changing rooms, separate
lockers, separate shower facilities, or in-plant laundry services; (3) as a result, he
carried asbestos fibers home on his work clothes; and (4) Mrs. Bobo was exposed to
those same fibers when laundering those clothes.207
In summary, a governmental agency retains discretion to adopt rules and
guidelines as its sees fit, but once it decides to promulgate mandatory regulatory
guidelines, its failure to comply with those rules exposes the agency to liability. Once
promulgated, an agency should be required to follow its own, mandatory procedures
and guidelines. For all of the foregoing reasons, TVA is not shielded from liability
by the discretionary function doctrine.
205

See supra Part III.C.

206

Doc. no. 209 (TVA’s Post-Trial Brief), at 17.

207

See supra Parts III.C., III.E.

82

F.

Damages
Plaintiffs seek the following damages for the injuries sustained by Barbara

Bobo as a result of TVA’s negligence: $547,008.93 in medical bills for the diagnosis
and treatment of her disease, and $8,000,000 for physical pain, suffering, mental
anguish, and loss of the enjoyment of life.208 TVA is entitled to an offset in the
amount of $136,176.37, representing the aggregate amount received by plaintiffs or
their decedent from settlements with various asbestos bankruptcy trusts.209
Additionally, as of February 9, 2015, plaintiffs had seven pending claims with other
asbestos bankruptcy trusts, and potential claims against other bankrupt entities that
may or may not establish trusts for the compensation of asbestos victims. In the event
plaintiffs enter into additional settlements with such trusts, or judgment should be
entered in favor of plaintiffs against such entities, TVA may be entitled to additional
offsets in the aggregate amount of such settlements or judgments.210
Although Barbara Bobo died prior to trial, plaintiffs are entitled to recover
damages under the Alabama survival statute for the personal injuries that their mother
suffered before her death. See Ala. Code § 6-5-462 (1975).211 In Alabama, “all

208

See doc. no. 191 (Pretrial Order), at 6.

209

Doc. no. 201 (Agreed and Stipulated Facts), ¶ 80.

210

Id. ¶ 81.

211

See supra note 12.

83

injurious residuals proximately resulting from permanent injury negligently inflicted
by one party upon another, properly plead and proved, are due to be considered by the
[court] in arriving at its verdict.” Beloit Corp. v. Harrell, 339 So. 2d 992, 998 (Ala.
1976) (alteration supplied). Those “injurious residuals” include mental anguish,
physical pain and suffering, impaired health, diminished earning or working capacity,
mutilation or disfigurement, and medical expenses. Id. (citing Alabama Great
Southern Railroad Co. v. Flinn, 74 So. 246 (Ala. 1917)).
Mrs. Bobo’s medical expenses for medical care, services, and treatment of her
mesothelioma totaled $537,131.82. Mrs. Bobo’s health insurers satisfied virtually all
of those expenses (i.e., $532,131.82), but Medicare asserts a subrogation claim in the
amount of $82,793.81 for its payments to Mrs. Bobo’s healthcare providers. TVA
contends that, “[b]ecause Plaintiffs have no obligation to pay amounts that were
written off, any judgment awarding damages for medical expenses that may be
entered in their favor should be limited to the amount of the Medicare subrogation
claim of $82,793.81, plus [Mrs. Bobo’s] out-of-pocket expenses of $5,000.00.”212
This court disagrees: “damages recoverable by plaintiff[s] should not be diminished
by the fact that [they have] been wholly or partially indemnified for [their] loss by
hospital insurance to which defendant did not contribute.” Roland v. Krazy Glue,

212

Doc. no. 209 (TVA’s Post-Trial Brief), at 20 (alterations supplied).

84

Inc., 342 So. 2d 383, 386 (Ala. Civ. App. 1977) (alterations supplied). Accordingly,
the court will award plaintiffs the full amount of Mrs. Bobo’s medical expenses:
$537,131.82.
Plaintiffs contend that they also are entitled to recover damages to compensate
for Mrs. Bobo’s permanent injury and disfigurement.213 The Pretrial Order, however,
does not include a damages claim for permanent injury and disfigurement.214 Under
the Federal Rules of Civil Procedure, “a final pretrial order . . . supersede[s] all prior
pleadings and ‘control[s] the subsequent course of the action.’” Rockwell
International Corp. v. United States, 549 U.S. 457, 474 (2007) (quoting former
Federal Rule of Civil Procedure 16(e)) (alterations supplied).215 As plaintiffs
concede, theories of damages not included in the Pretrial Order are waived, even if
they appeared in the complaint.216 Accordingly, the court will not award plaintiffs
any amount as damages for Mrs. Bobo’s permanent injury and disfigurement.
Finally, plaintiffs are entitled to recover damages for Mrs. Bobo’s mental
anguish, physical pain and suffering, and loss of the enjoyment of life. The Supreme

213

Doc. no. 211 (Plaintiffs’ Proposed Findings of Fact and Conclusions of Law), at 28-29.

214

Doc. no. 191 (Pretrial Order), at 6.

215

Federal Rule of Civil Procedure 16(e) was amended in 2007, after the Rockwell opinion,
“as part of the general restyling of the Civil Rules to make them more easily understood and to make
style and terminology consistent throughout the rules. These changes [were] intended to be stylistic
only.” Fed. R. Civ. P. 16, 2007 Advisory Committee Notes (alteration supplied).
216

See doc. no. 213 (Plaintiffs’ Response to TVA’s Post-Trial Brief), at 13.

85

Court of Alabama has long held that
“[t]here is no fixed standard for ascertainment of compensatory damages
recoverable . . . for physical pain and mental suffering” and that “the
amount of such [an] award is left to the sound discretion of the jury,
subject only to correction by the court for clear abuse or passionate
exercise of that discretion.”
Black v. Comer, 38 So. 3d 16, 27 (Ala. 2009) (quoting Daniels v. East Alabama
Paving, Inc., 740 So. 2d 1033, 1044 (Ala. 1999)) (alterations and omissions in
original). Because this case was tried without a jury, the court assumes the role of
finder of fact. See, e.g., Prickett v. United States, 111 F. Supp. 2d 1191, 1192 (M.D.
Ala. 2000), aff’d without opinion, 268 F.3d 1066 (11th Cir. 2001). Thus, the
ascertainment of damages for pain and suffering is left to the court’s sound discretion.
Here, Mrs. Bobo was diagnosed with malignant pleural mesothelioma in
November of 2011, and was subjected to numerous rounds of chemotherapy from
January through April of 2012. She referred to the initial rounds of that treatment as
the “Red Devil,” because she experienced many adverse side effects, including
reduced appetite, pain when drinking fluids, and spitting up raw flesh. In June of
2012, Dr. David Sugarbaker removed one of Mrs. Bobo’s ribs and the pleural lining
of one of her lungs. She was hospitalized for 22 days following that procedure, and
then was discharged to begin rehabilitation. Mrs. Bobo died on September 7, 2013.
The court finds that $3,000,000 is an appropriate award for the physical pain and
86

suffering Mrs. Bobo endured during her mesothelioma treatment, and will award
plaintiffs that amount in compensatory damages.217
V. CONCLUSION
For the reasons stated in this opinion, the court finds in favor of plaintiffs. A
Judgment consistent with this memorandum of opinion will be entered
contemporaneously herewith.
DONE and ORDERED this 29th day of September, 2015.

______________________________
United States District Judge

217

The court notes that this award is consistent with other damage awards for pain and
suffering in similar mesothelioma cases. See, e.g., Crane v. Hardick, 722 S.E.2d 610, 622 (Va.
2012) (affirming award of $2,000,000 in damages for pain and suffering in a mesothelioma case
where the plaintiff was diagnosed with the disease in February of 2007, and died in March of 2009).
See also Goede v. Aerojet Gen. Corp., 143 S.W.3d 14, 27 (Mo. Ct. App. 2004) (affirming award of
$2,000,000 in damages for pain and suffering in a mesothelioma case where the plaintiff’s
mesothelioma manifested in May of 2001, and she died in March of 2002).

87