Stevens v. Arch Wood Protection, Inc. et al
Filing
205
MEMORANDUM OPINION & ORDER, 1) Defendant's Motions for s/j on Product Identification [156 and 163] is SUSTAINED; 2) Plaintiff's having failed to demonstrate a prima facie element of their case sufficient to survive s/j all other pending mo tions DE 157,158,159,160,161,162,164,165,166,167,168 are OVERRULED AS MOOT 3) Judgment is entered in defendant's favor and this matter is stricken from the active docket of the Court.. Signed by Judge Henry R. Wilhoit, Jr on 9/28/16.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at ASHLAND
Civil Action No. 12-46-HRW
DERRICK STEVENS,
Administrator of the Estate of
Paul E. Stevens,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
ARCH WOOD PROTECTION, INC., et al.
DEFENDANTS.
This is a failure to warn products liability action wherein Plaintiff alleges the decedent, Mr.
Paul E. Stevens (Mr. Stevens), sustained harm from being occupationally exposed to toxic levels of
a chemical used to preserve the wood in utility poles. [Docket No. 1]. The Court has before it
several fully briefed motions. Specifically, Defendants, two chemical manufacturers and three
wood-treating companies, have filed Motions for Summaiy Judgment challenging different aspects
of causation, including product identification and medical causation, and argue the employer's
failure to properly train and warn Mr. Stevens was the superseding cause of his injuries. [Docket
Nos. 156, 159, 161, 162 and 163]. Defendants have also filed a Motion for Summaiy Judgment
arguing Plaintiff cannot establish his failure to warn claim against the chemical manufacturers
because his expert admitted his opinion was not directed to them. [Docket No. 159]. In addition,
both Plaintiff and Defendants have filed Daubert Motions challenging the admissibility of ce1iain
testimony of their opponents' expetis. [Docket Nos. 157, 158, 160, 162, 164, 165, 166, 167, and
168].
In considering these various challenges, the issue of product identification looms large.
Plaintiff is unable to present sufficient evidence supporting a reasonable inference that he was
exposed to these Defendants' specific products. Thus, for the reasons more fully set fo1th below,
the Court finds that the Defendants are entitled to judgment as a matter oflaw. As the lack of product
identification is dispositive of the case, the other challenges regarding causation and opinion
testimony are moot.
I.
FACTS
Mr. Stevens worked as a pole climber and a supervisor on a line crew for Kentucky Power
Company (Kentucky Power) from May 11, 1981, until May 19, 2011. [Docket Nos. 1, ~ 6, 139-4,
pg. 10 and 180-1). Plaintiff Derrick Stevens, as the administrator of his father's estate, claims that
during Mr. Stevens's employment at Kentucky Power he was exposed to arsenic, chromium and
copper contained in cln·omated copper arsenate (CCA)~a substance used to preserve the wood in
utility poles and cross-arms. [Docket Nos. 1, ~~ 5, 7 and 139-4, pgs. 10-11). Mr. Stevens was
allegedly exposed to CCA while handling, sawing, and drilling CCA-treated wood as part of his
employment duties, as well as tln·ough fighting fires on the CCA-treated utility poles. 1 Id. Plaintiff
alleges that Mr. Stevens was diagnosed with "systemic adverse health effects consistent with
exposure to arsenic from the CCA treated wood," including malignant melanoma. [Docket No. 1,
'Various employees of Kentucky Power testified that from the late 1990s until 2012 utility pole fires
started occurring more frequently due to faulty equipment that was being installed on the poles. [Deposition
of William Lynch, Docket No. 180-4, pg. 33-34 (Mr. Lynch testified pole fires began in the late 1990s and
were still a problem when he retired in 201 O); Deposition of William Fraley, Docket No. 180-3, pg. 18-19
(Mr. Fraley testified "prime time" for pole fires was in 2008 to 2012); Deposition of Lloyd McCarty, Docket
No. 180-2, pg. 46-47 (Mr. McCarty testified pole fires first started in late 1990s, but became more frequent
starting in 2008 because of faulty insulators installed on the poles)].
2
~~
8, 9]. Mr. Stevens died on October 6, 2012, at the age of 55, due to complications from his
malignant melanoma.2 [Docket Nos. 36 and 186-2, pg. 2].
Mr. Stevens filed this action against three producers of CCA (the chemical-manufacturing
Defendants: Arch Wood Protection, Inc. (Arch), Osmose Inc. (Osmose), and Chemical Specialties,
Inc. (CSI)) and three companies that purchased CCA from the producers (the wood-treating
Defendants: Koppers, Inc. (Koppers), Langdale Forest Products Company (Langdale), and T.R.
Miller Mill Company, Inc. (T.R. Miller)) and used it to treat utility poles and cross-arms. 3 [Docket
No. l]. Plaintiff claims that Defendants knew of the health hazards caused by CCA exposure, but
failed to warn of the dangers. [Id.
at~~
12, 14-17, 19-21, 24-25, and 27-31].
Defendants Arch and Osmose admit in their respective Answers that they manufactured CCA
and sold it to certain of the wood-treating Defendants. [Docket Nos. 39, pgs. 2-3 and 41, pgs. 2-3].
Defendants Koppers, Langdale, and T.R. Miller admit that they purchased CCA preservative from
Arch, Osmose or CSI to treat utility poles that were sold to Kentucky Power. 4 [Docket Nos. 13, pgs.
3-5; 40, pgs. 2-3; 42, pgs. 2-3; 180-7, pgs. 3-4; 180-8, pgs. 3-4 and 180-11, pgs. 4-5]. Specifically,
Koppers and T.R. Miller admit they bought CCA from Arch. [Docket Nos. 180-7, pg. 3 and 180-8,
'Upon Mr. Stevens death, Derrick Stevens, Administrator of the Estate of Paul E. Stevens, was
substituted as Plaintiff herein. [Docket No. 36].
'On July l, 2013, Chemical Specialties, Inc. was voluntarily dismissed from this case pursuant to
its settlement with Plaintiff. [Docket No. 68].
4
It is not clear from Plaintiffs briefing whether there are three or four companies licensed to
manufacture and sell CCA in the United States. Plaintiff cites to an EPA Notice of Cancellation Order, 68
Fed. Reg. 17366-01 (Apr. 9, 2003), which references a fourth registrant, Phibro-Tech, Inc., as being licensed
to manufacture and sell CCA in the United States. [Docket No. 180, pg. 4]. However, later in his briefing,
Plaintiff states Arch and Osmose are two of three CCA manufacturers licensed to sell CCA in the United
States. See id. at pg. 10. Regardless, the wood-treating Defendants do not identify having purchased CCA
from a fourth manufacturer.
3
pg. 3]. Defendant Langdale admits it bought CCA from CSI and Osmose. [Docket Nos. 180-11, pg.
3 and Deposition of James Hickman, 180-14, pgs. 7-8]. Mr. Hickman, Langdale' s technical director,
testified that in the mid-1980s Langdale purchased CCA from both Osmose and CSL [Docket No.
180-14, pgs. 3, 12-13]. Mr. Hickman testified it is his understanding that from 2000 to 2007
Langdale was buying its CCA almost exclusively from CSI, and in 2007 it began buying its CCA
almost exclusively from Osmose. Id. at pg. 13. 5
The wood-treating Defendants contend that while they sold CCA-treated poles to Kentucky
Power, they were not the only suppliers. Plaintiff provided records from Kentucky Power of its
purchases of CCA-treated utility poles during the period February 20, 1992 to April 2003, and
Defendants provided excerpts of these same records. 6 [Docket Nos. 139-2, 180-15 and 180-16, pg.
5]. These records demonstrate that Kentucky Power purchased CCA poles during this time period
from at least 9 suppliers, including the three wood-treating Defendants Koppers, T.R. Miller and
Langdale. [DocketNos.139-2, 180-15and180-16,pg. 5-7].
Plaintiff admitted in response to Defendant Kopper's discovery requests that he"[d]oes not
know the specific locations or addresses where the alleged exposures occurred. "7 [Docket No. 1394, pg. 12]. Instead, Plaintiff points to the deposition testimony of Mr. Stevens's co-workers as
5
Plaintiff states it is probable that there were times when the CCA from CS! and Osmose were
intermixed in the holding tank at Langdale when a new supply of CCA was delivered from one company
while chemical from the other remained in the holding tank. [Docket No. 180, pg. 5 n.3 (citing Deposition
of Nathaniel Runyan, Docket No. 180-9, pgs. 39, 60)]. In suppo1t, Plaintiff references invoices from 2009
that suggest CCA from CSI and Osmose were intermixed. Id. However, as Defendants note, Kentucky
Power was not purchasing CCA-treated poles in 2009. [Docket No. 180-16, pg. 5]. Nevertheless, the Comt
will assume such a situation could have occurred at other times.
6
ln April 2003 Kentucky Power stopped purchasing CCA poles altogether. [Docket No. 180-16, pg.
5].
'Mr. Stevens died before he could be deposed in this case.
4
demonstrating he had daily contact with CCA-treated utility poles during his employment. As a
lineman at Kentucky Power, Mr. Stevens would have built new power lines, repaired storm trouble,
and set poles. [Deposition of Lloyd McCarty, Docket No. 180-2, pgs. 19, 29-30]. In doing so, he
would have come into contact with CCA poles, as well as creosote and pentachlorophenol ("penta")
poles. 8 Id.
Mr. Fraley, a line crew supervisor who worked with Mr. Stevens "quite often," testified that
he worked with Mr. Stevens on pole fires "a lot." [Docket No. 180-3, pgs. 10-12, 17]. Mr. Fraley
had a specific recollection of Mr. Stevens being in a bucket truck during a pole fire and putting the
fire out by pouring water on it. Id. at pgs. 45-46. He recalled Mr. Stevens pouring water on pole
fires an estimated six times. Id. at pg. 46. Mr. Fraley also testified that drilling a CCA utility pole
was a routine part ofhisjob. Id. at pg. 100. He testified he saw Mr. Stevens drill utility poles, a task
he described as a daily part of Mr. Stevens'sjob. Id. at pg. 101. Mr. Fraley did not know how many
poles Mr. Stevens climbed in his career or how many pole fires he attended. Id. at pg. 84. He also
was not aware of anyone having tried to identify which poles Mr. Stevens climbed or extinguished
fires on during his career. Id.
Mr. Lynch, another line crew supervisor, also testified that Mr. Stevens was often on his
crew. [Docket No. 180-4, pgs. 8, 19]. Mr. Lynch testified that he saw Mr. Stevens work a pole fire
'Creosote and penta are two other types of treated utility poles used at Kentucky Power over the
years. [Deposition of Lloyd McCarty, Docket No. 180-2, pgs. 26-29]. The types of poles can be identified
by their color: CCA poles are green; penta poles are brown, and creosote poles are black. Mr. McCarty
testified that all three types of poles were already in use in 1988 when he started with Kentucky Power. Id.
pgs. 26-27. He also stated that from 1988 to about 2004, all of the new poles were CCA poles. In April
2003, Kentucky Power switched from CCA poles to penta poles because they were easier to work on; the
CCA poles were harder to climb and to drill. [Docket No. 180-16, pg. 5; see also Deposition of Ronald
Canfield, Docket No. 180-20, pgs. 17-18].
5
"many times"- he "worked a lot of them and he was always the man in the bucket truck" hying to
put the fire out. Id. at pgs. 32-33, 65. Mr. Lynch did not remember Mr. Stevens climbing a pole to
put a fire out. Id. at pg. 66. Mr. Lynch was also not aware of anyone trying to identify the poles on
which Mr. Stevens worked to extinguish fires. Id. at pgs. 100-01.
Mr. McCarty also testified that over the years he worked on crews with Mr. Stevens. [Docket
No. 139-7, pgs. 23-24, 31-34, 44-45]. Mr. McCarty recalled seeing Mr. Stevens climb a CCAtreated pole, and would assume he extinguished pole fires because eve1y lineman did. [Docket Nos.
139-7, pgs. 73-74, 86 and 139-9, pgs. 133-34]. While Mr. McCa1iyrecalled Mr. Stevens was on his
crew and thus knew he had to work pole fires as a member of his crew, he could only specifically
recall Mr. Stevens working two pole fires. [Docket No. 139-7, pgs. 156-57]. Mr. McCarty recalled
Mr. Stevens putting out one fire with bottled water after the burning portion of the pole was lowered
to the ground, but he could not recall the name of the road where the fire occurred and did not
identify the manufacturer of that pole. [Docket Nos. 139-7, pgs. 156-57 and 139-9, pgs. 135-36].
Mr. McCarty also recalled Mr. Stevens working a pole fire on Route 503, but did not identify a
specific pole or manufacturer. [Docket Nos. 139-7, pg. 157].
Defendants seek summaiy judgment, arguing Plaintiff cannot point to any evidence that Mr.
Stevens was exposed to their specific products and thus cannot meet his burden of proving that
Defendants' products were a substantial cause of Mr. Stevens's injuries. [Docket No. 156-1]. In
response, Plaintiff argues he has presented sufficient evidence from which a jury could reasonably
conclude that Mr. Stevens was exposed to the chemical-manufacturing Defendants' CCA contained
in the wood-treating Defendants' utility poles and that this exposure was a substantial factor in
causing his illness. [Docket No. 180]. Alternatively, Plaintiff argues that each of the two chemical-
6
manufacturing Defendants has the burden of proving its chemical did not cause Mr. Stevens' s illness
under a conceti of action theory. Id.
II.
ANALYSIS
A.
Standard of Review
Summary judgment is appropriate if the materials in the record "show [ ] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a), (c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). The
evidence must be viewed in the light most favorable to the nonmoving party and all reasonable
inferences must be drawn in that patty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The moving party has the ultimate burden of persuading the comi that there are no disputed
material facts and that he is entitled to judgment as a matter oflaw. Id. Once a patiy files a properly
supported motion for summary judgment by either affirmatively negating an essential element of the
nonmoving party's claim or establishing an affirmative defense, "the adverse patiy must set fmih
specific facts showing that there is a genuine issue for trial." Id. at 250. "The mere existence of a
scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must
be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252.
B.
Plaintiff has not presented sufficient evidence that Mr. Stevens was exposed to
Defendants' products.
In Kentucky, as part of any products-liability claim, a plaintiff must tie his injmy to the
defendant's product. Collins v. Ansell Inc., No. 3:98-cv-259-H, 2003 WL 22769266, at *2 (W.D.
Ky. Nov. 19, 2003); see also Jn re Beverly Hills Fire Litig., No. 77-79, 1979 U.S. Dist. LEXIS
15403, at **8-9 (E.D. Ky. Nov. 14, 1979) (plaintiff must identify the product causing the harm and
7
link it to a particular defendant); In re Martin v. Cincinnati Gas & Elec. Co., No. 02-201, 2006 WL
6353627, at* 1 (E.D. Ky. 2006) ("Within the context of asbestos litigation, as with product liability
generally, a plaintiff must identify the injury-causing product and its manufacturer in order to survive
summary judgment.") (citing Roberts v. Owens-Corning Fiberglas Cmp., 726 F. Supp. 172, 174
(W.D. Mich. 1989). 9 To that end, a plaintiff is required to show, for each defendant, that he was
exposed to the defendant's product. Cf Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488, 492
(6th Cir. 2005), see also Mannahan, 2016 WL 3887037, at *3 (quoting Lindstrom, 424 F.3d at 492).
After a plaintiff proves his exposure to a defendant's product, he must then establish that the
exposure to the product was a substantial factor in causing the harm. Collins, 2003 WL 22769266,
at *3 (court found no evidence upon which a reasonable fact finder could conclude the substantial
and proximate cause of plaintiffs harm was more likely than not her exposure to defendant's
product); see also Moeller v. Garlock Sealing Tech., 660 F.3d 950, 954 (6th Cir. 2011) (noting,
under Kentucky law, a plaintiff is required to prove a defendant's conduct was a substantial factor
in bringing about the harm and stating"[c]ausation requires a link between the specific defendant's
conduct and the plaintiffs injuries"). The substantial factor test requires the Court "to determine
'whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as
to whether the conduct of the defendant has been a substantial factor in causing the harm to the
plaintiff."' Pathways, Inc. v. Hammons, 113 S. W.3d 85, 92 (Ky. 2003) (citing Deutsch v. Shein, 597
9
There is a recent consistent Kentucky Court of Appeals decision. Mannahan v. Eaton Corp.,_
S.W.3d _, 2016 WL 3887037, at *3 (Ky. Ct. App. July 15, 2016) ("[T]he threshold question in every
asbestos case is whether the plaintiff was exposed at all to the defendant's[] product. ... Simply put, the
plaintiff must prove that the defendant supplied the product that caused the plaintiffs disease or injury.")
(emphasis original) (citations omitted). However, a motion for discretionary review, filed August 12, 2016,
is pending before the Kentucky Supreme Court in that case and thus it is not yet final.
8
S.W.2d 141 (Ky. 1980)); Restatement (Second) of Torts § 431 (1 )(a)). While causation is generally
a question of fact for the jmy, it "should not go to the jury unless the inference of causation is
reasonable: it must 'indicate the probable, as distinguished from a possible cause."' Martin v.
Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (quoting Briner v. Gen. Motors
Corp., 461 S.W.2d 99, 101 (Ky. 1970)).
Here, Defendants argue that the wood-treating Defendants are entitled to judgment as a
matter oflaw because Plaintiff has not identified a single pole that Mr. Stevens worked on and thus
cmmot connect Mr. Stevens's injury to the wood-treating Defendants' utility poles. Similarly,
Defendants argue that the chemical-manufacturing Defendants are also entitled to summary
judgment because without evidence of what CCA-treated poles Mr. Stevens was exposed to, there
is no evidence from which Plaintiff can identify the CCA preservative used in the treatment process
for those poles. Plaintiff admitted that he does not know the specific location or addresses where
Mr. Stevens's alleged exposures occurred, and he has not pointed this Court to any testimony or
other evidence of Mr. Stevens specifically working on or around one of the wood-treating
Defendants' utility poles. [Docket No. 139-4, pg. 12]. Thus, the Court does not have before it any
direct evidence that Mr. Stevens was exposed to any of the wood-treating Defendants' utility poles
or any of the chemical-manufacturing Defendants' CCA.
Instead, Plaintiff seeks to meet his burden by presenting what he contends is sufficient
circumstantial evidence to present to a jury. Plaintiff maintains that the deposition testimony of Mr.
Stevens' s coworkers demonstrates that he worked on CCA-treated poles in the normal course of his
work, including drilling poles and extinguishing pole fires. None of these employees, however,
9
could recall a specific pole Mr. Stevens worked on and could not testify that he worked on a pole
supplied to Kentucky Power by one of the wood-treating Defendants. This is fatal to Plaintiff's case.
Plaintiff maintains this case is analogous to asbestos cases and argues that summary judgment
can be avoided for lack of product identification by demonstrating that a defendant's product is in
the "immediate work area" of the plaintiff. [Docket No. 180, pg. 16 (citing Martin, 2006 WL
6353627, at **3-4)]. Plaintiff states that it is undisputed. that during the relevant time period the
wood-treating Defendants supplied CCA-treated poles, poles treated with the
chemical-
manufacturing Defendants' CCA, to Kentucky Power's Ashland location where Mr. Stevens
worked. 10 He also points to evidence that Kentucky Power was able to identify 18 pole fires where
Mr. Stevens was known to be on site. [Docket No. 180-18]. Plaintiff argues this evidence is
sufficient, given the nature of his cumulative exposure, to defeat a motion for summary judgment
based on lack of product identification, as a jury can reasonably infer that exposure to Defendants'
products was a substantial factor in causing Mr. Stevens's injuries. [Docket No. 180, pgs. 10-11].
In support of his argument, Plaintiff relies on Martin, 2006 WL 6353627. In klartin, the
executor of an estate of a decedent who died of mesothelioma brought claims against General
Electric Company (GE). Plaintiff's claims against GE stemmed from "household" or "bystander"
'°Specifically, Plaintiff points to: I) the wood-treating Defendants' admissions that they each
supplied CCA-treated poles to Kentucky Power that were treated by one or more of the chemicalmanufacturing Defendants' CCA [Docket Nos. 180-7, pgs. 3-4, 180-8, pgs. 3-4 and 180-11, pgs. 4-5]; 2)
Kentucky Power's purchasing records evidencing that it purchased CCA-treated poles from the wood-treating
Defendants during the time period of February 1992 and March 2003, and that some of the poles were
delivered to Kentucky Power's Ashland location [Docket No. 180-15]; 3) Defendant Koppers' production
of749 pages in response to a discovery request seeking all invoices from 1985 to 2011 of CCA utility poles
to Kentucky Power [Docket Nos. 180-21 and 180-22]; and 4) an April 14, 1989, internal trip repo1t from
American Electric Power, wherein the author repmted on his trip to inspect five present or potential suppliers
of poles, including its then current suppliers Koppers and T.R. Miller (whom the repo1t stated were
"currently providing roughly 20% of [their] system distribution poles") [Docket No. 180-17].
10
exposure where he alleged the decedent was exposed to asbestos contained in GE's products when
his father, having been exposed to such products at work, carried the fibers home on his work
clothes. Id at *1. The decedent's father worked for the Cincinnati Gas & Electric Company
(CG&E) and, during the relevant time frame, he spent much of his time working in manholes,
substations, and transformer vaults. Plaintiff alleged it was in such places that the decedent's father
was exposed to GE's asbestos-containing products.
GE sought summary judgment on grounds that plaintiff failed to offer sufficient evidence
connecting the decedent to any of its asbestos-containing products. 11 The decedent's father had
testified that he could not recall who manufactured the insulating material he worked with in the
manholes and he believed insulation was the only asbestos-containing material he came in contact
with. A representative of CG&E testified that other asbestos materials were used in the manholes,
but he too could not identify the manufacturer or supplier of the materials. To connect GE to the
decedent's illness, plaintiff submitted internal memoranda, invoices, order forms, and instruction
manuals that purpo1iedly connected GE's asbestos-containing products with the decedent's father's
"immediate work environment." Plaintiff also offered evidence of asbestos abatement, which
indicated that asbestos materials had been found during the relevant time frame in "areas in which
[the decedent's father] was known to have worked."
The Court recognized that "[w]ithin the context of asbestos litigation, as with product
liability generally, a plaintiff must identify the injury-causing product and its manufacturer in order
to survive summary judgment. Id. at *3 (citing Roberts, 726 F. Supp. at 174). The court further
11
The court noted there was little dispute that the decedent's cause of death was mesothelioma and
that it is caused by asbestos.
11
noted that [u]nder Section 431 [Restatement (Second) of Torts], a plaintiff cannot establish the
requisite connection between his injuty and a particular asbestos product manufacturer by merely
showing that the manufacturer's product was present somewhere at his place of work ... a plaintiff
must establish that the manufacturer's asbestos product was used at the specific site within the
workplace where he worked." Id. (quoting Roberts, 726 F. Supp. at 174). Looking to the evidence,
the court concluded that the plaintiff had presented sufficient circumstantial evidence that GE
manufactured and/or supplied at least some of the asbestos-containing materials "found in the
manholes in which [the decedent's father) worked." Id. at *5. Thus, the couti found sufficient
evidence of the identity of the manufacturer/supplier of the allegedly harmful products. Id.
Plaintiff argues Martin is important because of its factual similarity to the case at bar and
demonstrates that summaiy judgment based on product identification can be defeated in toxic tort
cases by pointing to "circumstantial evidence that a particular defendant supplied some of the
harmful product the plaintiff was exposed to." [Docket No. 180, pg. 10). Plaintiff argues Mr.
Stevens's injury was not caused by one specific pole, but by eve1y CCA pole he came in contact with
over the years, resulting in cumulative exposure "as high as 500 paits per billion per day measured
over a two-week work week." Id. at. pg. 11 (citing report of exposure expert John P. Wargo, PhD).
Plaintiff further argues that he has presented sufficient circumstantial evidence from which a jmy
could conclude Mr. Stevens was exposed to Defendants' products by pointing to evidence that
Kentucky Power purchased CCA utility poles from the wood-treating Defendants, treated with the
chemical-manufacturing Defendants' CCA, that Mr. Stevens regularly worked on CCA-treated poles,
and identifying specific locations where Mr. Stevens fought fires. Id. at pgs. 10-16.
12
Defendants argue Martin is distinguishable because it is an asbestos case, involving
mesothelioma, a signature condition from asbestos exposure. [Docket No. 185, pg. 7]. Defendants
point out that because of the friable nature of asbestos fibers, the court found it was sufficient, in the
asbestos context, that plaintiff place the defendants' products in the plaintiffs vicinity. Defendants
explain the same reasoning does not apply in this case because, unlike asbestos, CCA-treated utility
poles are identifiable and melanoma is not a signature condition of arsenic exposure. Id.
Notwithstanding any distinction that can be made as to the applicability of asbestos cases to
the case at bar, Martin is distinguishable. In Martin, the court stated that the plaintiff had provided
exhibits purporting to connect GE's asbestos-containing products "with [the decedent's father's]
immediate work environment." The court concluded plaintiff had presented circumstantial evidence
,(
that GE provided at least some of the asbestos-containing material "found in the manholes in which
[decedent's father] was known to have worked." Here, however, while Plaintiff has demonstrated
that the wood-treating Defendants sold CCA-treated utility poles to Kentucky Power, he has not
pointed to any evidence demonstrating that any of the wood-treating Defendants' utility poles were
used at the specific sites where he worked.
Plaintiff worked as a lineman, stationed out of the Ashland Service Center, but the work he
performed on utility poles was at work sites, which spanned a large geographic area "from Morehead
to South Shore," covering thousands of poles. [Deposition of Fred Manning, Docket No. 139-5, pg.
17; Deposition of Lloyd McCarty, Docket No. 180-2, pg. 19]. While Kentucky Power supplied
records that provided information from which Plaintiff could locate the specific work sites where
Mr. Stevens fought fires, there is no evidence Plaintiff used these records to try to identify the
supplier of any of the utility poles located at those work sites.
13
Specifically, Mr. Canfield, a 30(b)(6) witness for Kentucky Power, reviewed a report of the
outage cases forthe period May 6, 1997, to September 5, 2014, and identified431 instances of a pole
fire. 12 [Docket Nos. 180-19 and 180-20, pgs. 22-30]. He testified that the outage reports do not
identify the individuals working each job. Id. at pg. 31. However, Mr. Canfield explained that in
2003, Kentucky Power starting tracking pole fires on work orders by using a specific project number,
1785, for pole fires. Id. at pgs. 34-40. At some point, Kentucky Power stopped using a specific
. project number for pole fires and switched back to using a general project number, 1818, for all
trouble calls, which would include fires as well as other problems.
Mr. Canfield was able to perform a search from 2007 to the "present time" of all employees
who charged time to the two project numbers. 13 Id. at pgs. 70-79. From this report, Mr. Canfield
asce1iained that Mr. Stevens charged time on 18 work orders reflecting he was present at a pole fire.
Id. at pgs. 77-78, 101 and Docket No. 180-18. In addition, the record reflects that from 2007 until
he left Kentucky Power in 2011, Mr. Stevens charged time to 11 work orders reflecting he worked
a trouble call, which may or may not have involved a pole fire. [Docket No. 180-18]. Plaintiff has
not pointed to any evidence of who manufactured any of the utility poles involved in the work orders
to which Mr. Canfield testified Mr. Stevens charged time. As Defendants point out, the evidence
12 Mr. Canfield stated this number may underrepresent the total number of pole fires because his
calculation was based solely on his review of the descriptions on outage repo1ts. !fa data provider did not
include the words "pole fire" or "burned pole" he did not count it as a fire. [Docket No. 180-20, pgs. 22-30].
In addition, he recognized that he may have missed a few entries referencing a pole fire while performing
his manual review. Id. at pg. 27.
13
Mr. Canfield testified that Exhibit 7 to his deposition, Docket No. 180-18, reflects all of the work
orders that Mr. Stevens charged time to under the project number for either a pole fire or a trouble call from
2007 to "the present time." (Docket No. 180-20, pgs. 77-78]. Mr. Canfield's deposition was taken on
October 23, 2014. Thus, this document appears to reflect all pole fires Kentucky Power has a record of Mr.
Stevens working from 2007 until his last day of work on May 19, 201 l. Id.; see also Docket No. 139-4, pg.
11.
14
supplied by Kentucky Power contained information from which Plaintiff could have determined the
location of at least some of the 18 pole fires and 11 trouble calls, and the Co mt' s review of these
documents revealed that some include pole numbers, street/road names and maps. [Docket Nos.
180-18, 180-24 and 180-25]. Indeed, Plaintiff admitted in his Response that not only do Kentucky
Power's records identify "specific locations" where Mr. Stevens worked a pole fire, but that each
CCA utility pole has a supplier's identifying mark on it. [Docket No. 180, pgs. 6, 11-12]. Thus,
Plaintiff could have determined the supplier of at least some of the utility poles present at his work
sites, but apparently did not undertake that task. Consequently, Plaintiff has not pointed to evidence
placing Defendants' products in Mr. Stevens's "immediate work enviromnent." Merely stating that
Defendants' products were somewhere at Kentucky Power is not sufficient to demonstrate their
presence at the specific work sites where he worked. See Martin, 2006 WL 6353626, at *3 (citing
Roberts, 726 F. Supp. at 174).
This case is more analogous to Collins v. Ansell Inc. In Collins, the Western District of
Kentucky found the plaintiffs circumstantial evidence attempting to link the defendant latex glove
manufacturer with her latex allergy was insufficient to withstand summary judgment where such
a link was based on speculation. Collins, 2003 WL 22769266. In Collins, the plaintiff admitted she
had no evidence that she had direct contact with defendant's gloves, but argued that because the
gloves had been supplied to her hospital employer and were used in the hospital (although in a
different building), it was possible they had caused her injmy by someone moving the gloves from
place to place or by airborne contaminates. Id. at *2. The court noted plaintiffs theories did not
have an adequate evidentiary foundation to sustain the reasonable inferences necessaiy to support
them. Id at *3. Thus, the fact that the defendant supplied gloves to the hospital and that they were
15
used somewhere in the hospital where plaintiff worked was insufficient, on its own, to demonstrate
her injury more likely than not was caused by her exposure to defendant's product. 14
Plaintiff attempts to distinguish Collins by arguing he has presented ample evidence that the
wood-treating Defendants' CCA-treated utility poles were present in Mr. Stevens's workplace and
that he had daily contact with CCA-treated poles. [Docket No. 180, pg. 11 n.6]. Collins is not so
easily distinguished however. As in Collins, Plaintiff has only demonstrated that the wood-treating
Defendants' products, along with those of at least 6 other suppliers, were used by Mr. Stevens's
employer. Also like Collins, Plaintiff has not presented any evidence that he came into contact with
or was exposed to these particular Defendants' products. As the Collins comi concluded, simply
pointing to the fact that Defendants' products were used somewhere at Kentucky Power, without
more, does not make it more likely than not thatthe 3 wood-treating Defendants' CCA-treated utility
poles, or the chemical-manufacturing Defendants' CCA, were a substantial factor in causing Mr.
Stevens' s injuries.
To fmiher support their position, Defendants cite to Bryant v. Tri-County Electric
Membership Corporation, 844 F. Supp. 347 (W.D. Ky. 1994). The Court also finds Blyant
instructive on this issue. In B1J1ant, the owners of a sawmill brought a claim against a manufacturer
of electrical transformers, Kuhlman, arguing a 1988 fire that destroyed the sawmill was caused by
a defect in transformers that were used at the sawmill prior to their removal in October 1986. Id. at
14
The court withheld entering judgment on behalf of the movant latex manufacturer, however,
because Plaintiff was awaiting discovery from the multi-district litigation that she claimed supp011ed
causation. Collins, 2003 WL 22769266, at *3. Because the court was unsure if the additional evidence would
prevent summary judgment, it permitted plaintiff additional time to obtain her evidence. In a later summary
decision, the court noted plaintiff had not filed additional discovery or a supplemental memorandum, and
granted summary judgment in favor of the defendant glove manufacturer for the reasons stated in the prior
decision. See Collins v. Ansell, Inc., 2004 WL 524912 (W.D. Ky. Mar. 2, 2004).
16
353-54. The owners maintained the transformers gradually caused damage to a switch, and the
switch eventually exploded causing the fire. Kuhlman sought summary judgment arguing plaintiff
had no evidence it manufactured the defective transformers. Plaintiffs admitted they did not have
direct evidence Kuhlman manufactured the defective transformers, but argued the fact that Kuhlman
was one of six manufacturers the electric company purchased transformers from in 1986 was
sufficient to raise a question of fact as to whether the defective transformers were Kuhlman
transformers. Id.
The court disagreed, finding that Kuhlman being one of a limited number of transformer
manufacturers who supplied transformers to the electric company did not support an inference that
Kuhlman manufactured the defective transformers at issue. The couti held "Kentucky law simply
does not permit a jury to hold a party liable on the strength of a one-in-six possibility that the party
acted irresponsibly." Id at 354. The cou11 noted plaintiff offered no evidence of distinctive
characteristics of the transformers that would allow a reasonable jury to decide they were made by
Kuhlman as opposed to one of the other five manufacturers. Id. The couti granted summary
judgment for Kuhlman, finding plaintiffs could not identify Kuhlman as the manufacturer of the
transformers that allegedly contributed to plaintiffs' injuries.
B1yant is analogous to the situation at hand. Kentucky Power purchased CCA-treated utility
poles from at least nine suppliers from 1992 to 2003, but has no knowledge of where each pole
purchased is located in its vast network. The onus is upon Plaintiff to demonstrate Defendants'
products caused his harm. Plaintiffs position seems to be that the jmy will assume Mr. Stevens had
to have had exposure to Defendants' products because it is undisputed they were supplied to
Kentucky Power. Without more, this is not a permissible evidentiaiy inference to argue before a
17
Jmy. While it is undisputed that Kentucky Power bought CCA-treated utility poles from the three
wood-treating Defendants, it is also undisputed that it purchased CCA-treated utility poles from at
least six other suppliers. In addition, the chemical-manufacturing Defendants are two of four
producers of CCA. Without direct or circumstantial evidence that Mr. Stevens was exposed to any
of the wood-treating Defendants' utility poles [not to mention fought a pole fire or drilled or
manipulated the pole] or to the chemical manufacturers' CCA, there is no basis to present this to a
jury and permit it to infer that exposure to any of Defendants' products was a substantial factor in
the harm he sustained.
A jury verdict must be based on something other than speculation,
supposition or surmise.
Further, Plaintiff cites to the repo1i of John P. Wargo, PhD., his exposure expe1t who
provided an assessment of Mr. Stevens's exposure to CCA to support his argument that Mr.
Stevens' s harm was caused by cumulative exposure. But this does not aid in his burden to prove Mr.
Stevens' s exposure to Defendants' products was a substantial factor in causing his harm. Dr. Wargo
opined on various pathways of Mr. Stevens' s exposure to inorganic arsenic on CCA poles in general
for purposes of demonstrating sufficient exposure to CCA to suppo1t medical causation. [Docket No.
180-6]. Dr. Wargo did not opine as to Mr. Stevens's exposure to each of the wood-treating
Defendants' utility poles or the chemical-manufacturing Defendants' CCA. In fact, Dr. Wargo's
report does not even specifically mention the Defendants and does not aid in product identification.
In conclusion, Plaintiff has not pointed to any evidence that Mr. Stevens handled, sawed,
drilled or fought a fire on a wood-treating Defendants' CCA-treated utility pole or that he was
otherwise exposed to the chemical-manufacturing Defendants' CCA. Kentucky Power's purchase
of CCA-treated poles from the wood-treating Defendants and its installation of those poles
18
somewhere in its network, points only to a possibility rather than the probability that Mr. Stevens
worked on a pole supplied by one of the wood-treating Defendants and treated with CCA produced
by a chemical-manufacturing Defendant.
Further, the record produced by Kentucky Power
identifying 18 instances where Mr. Stevens charged time to a pole-fire project number establishes
the probability only that the poles involved in those fires were supplied by a wood-treater, the 3
wood-treating Defendants here being a 3 in 9 chance of supplying. In fact, Plaintiff has not
presented any evidence of what company supplied the poles that are referenced in that rep01i, despite
the fact the suppo1ting documents contained information from which he could have located at least
some of the poles and identified their suppliers. Plaintiff has not set fotih sufficient circumstantial
evidence to permit a jury to reasonably infer that Mr. Stevens was exposed to Defendants' particular
products, and thus he cannot demonstrate that their products were a substantial factor in causing Mr.
Stevens's harm. Accordingly, summary judgment is warranted.
C.
Plaintiff has not established the essential elements of "concert of action" .
In Count II of his Complaint, captioned "punitive damages," Plaintiff alleges that the
chemical-manufacturing Defendants, Arch, Osmose and CSI (who has now been dismissed) "acted
in concert to prevent warning labels from being affixed to the CCA treated utility poles and crossarms, knowing [they] were necessary to safeguard utility workers, including Paul Stevens, from the
proven hazards of exposure to arsenic on and in the CCA treated wood." [Docket No. 1, ~~ 26-31].
Plaintiff argues such acts and omissions demonstrate "a high degree of moral turpitude warranting
the imposition of punitive damages." Id.
at~
31. Given its caption, the chemical-manufacturing
Defendants interpreted this as asserting a claim for punitive damages for their failure to warn and
19
therefore did not address it specifically in the Motion for Summary Judgment on Product
Identification. [Docket No. 156-1].
However, in response to Defendants' Motion for Summary Judgment on Product
Identification, Plaintiff argues he can establish the elements of a concert of action theory against
Arch and Osmose, via the allegations in Count II. [Docket No. 180, pgs. 17-20]. Thus, while
labeling Count II as a punitive damage claim, Plaintiff is relying upon the themy of "concert of
action" as a means of meeting his burden of product identification as to Arch and Osmose. While
it is not clear whether Plaintiff initially intended Count II to set forth a concert of action themy in
support of his product liability claim against Arch and Osmose as he now argues, the Court will
nevertheless construe Count II as raising concert of action.
Kentucky law recognizes a concert of action theo1y in product liability cases. Farmer v. City
of Newport, 748 S.W.2d 162 (Ky. Ct. App. 1988). In Farmer, the Kentucky Court of Appeals
adopted on Section 876 Restatement (Second) of Torts, which provides:
For harm resulting to a third person from the tortious conduct of another, one is
subject to liability ifhe (a) does a tortious act in concert with the other or pursuant
to a common design with him, or (b) knows that the other's conduct constitutes a
breach of duty and gives substantial assistance or encouragement to the other so to
conduct himself, or (c) gives substantial assistance to the other in accomplishing a
tortious result and his own conduct separately considered, constitutes a breach of
duty to the third person.
Id. (quoting Restatement (Second) of Torts,§ 876).
Plaintiffs assertions fall under§ 876(a) of the Restatement because he alleges Arch and
Osmose acted in concert to prevent warning labels from being affixed to CCA-treated utility poles
and concealed the known hazards ofCCA. [Docket Nos. 1, if29 and 180, pgs. 18-19]. There are no
allegations that warrant the application of the other two subsections of the Restatement.
20
Federal courts in Kentucky have applied three elements in analyzing concert of action in
product liability cases. 15 Eastridge v. Goodrich Corp., No. 3:12-cv-862-S, 2014 WL 4916236, at
*3 (W.D. Ky. Sept. 30, 2014); Dawson v. Bristol Labs, 658 F. Supp. 1036, 1039-40 (W.D. Ky.
1987); In re Beverly Hills, 1979 U.S. Dist. LEXIS 15403. These elements are:
First, plaintiffs must identify the product causing the harm and prove that the
defendants' acts in marketing and promoting the allegedly defective product were a
substantial factor in causing the plaintiff's injuries ... Second, plaintiffs must
establish that the defendants acted by cooperative or conce1ied activities ... Finally,
plaintiffs must prove defendants contravened a particular standard of care.
Eastridge, 2014 WL 4916236, at *3 (quoting Dawson, 658 F. Supp. at 1038-40). Allegations of
mere parallel activity of two or more defendants, without more, are insufficient to prove defendants
acted by cooperative or concerted activities under the conce1i of action themy. Smith v. Univar USA,
Inc, No. 12-134-ART, 2013 WL 1136624, at *5 (E.D. Ky. Mar. 18, 2013); Dawson, 658 F. Supp.
at 1039-40. To show concerted action, a plaintiff must point to evidence suggesting an agreement
or common design between the defendants. Smith, 2013 WL 1136624, at *5; Dawson v. Bristol
Labs., Nos. 83-937L, 83-941L, 83-942L, 83-992L, 1988 WL 123929, at* 3 (W.D. Ky. 1988).
Plaintiff argues he can establish the above elements with three documents. The Couti has
reviewed these documents and they do not suppmi a finding that Arch and Osmose acted by
cooperative or concerted activities to commit a tortious act. Specifically, as discussed below, they
15
Defendants argue that concert of action only applies where a plaintiff has an absolute inability to
identify the particular defendant that caused his injury. [Docket No. 185, pg. 12 (citing In re Beverly Hills,
1979 U.S. Dist. LEXIS 15403)). However, Judge Forester considered a similar argument in a cigarette
product liability case and stated he believed defendant was reading Dawson v. Bristol Laboratories, 658 F.
Supp. 1036 (W.D. Ky. 1987), stating the same concept, too narrowly and in a manner inconsistent with
Kentucky law. Barnes v. Philip Morris, Inc., No. 98-106, 1999 WL 34813784, at *3 (E.D. Ky. Mar. 24,
1999) (citing Farmer, 748 S. W.2d at 164 (holding that plaintiffs stated a claim based on concert of action
"[ d]espite the fact that [plaintiffs] could identify the specific manufacturer of the [product]")).
21
fail to prove that Arch and Osmose acted in concert "to prevent warning labels from being affixed
to the CCA treated utility poles" or to "conceal[] the known hazards of the CCA chemical ." [Docket
No. 180 pg. 18].
First, Plaintiff points to a 1985 administrative decision from the Environmental Protection
Agency ("EPA") as evidence that Arch and Osmose acted by cooperative or concerted activities to
prevent warning labels from being affixed to CCA-treated utility poles and to conceal the hazards
of CCA. [Docket Nos. 180, pg. 19 (citing In re Chapman Chemical Co., FIFRA Docket No. 529
(1985)) and 180-27]. Plaintiff infers that the chemical-manufacturing Defendants were involved in
this administrative challenge to the EPA' s authority to regulate CCA-treated wood. That challenge
was successful, and the administrative law judge held, among other things, that the EPA did not have
authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to require labels
to be placed on pressure-treated wood as a requirement for registration of the preservatives at issue.
[Docket No. 180-27, pgs. I, 30, 60].
Defendants argue that "lawful participation in the political process, including lobbying
individually or through industry trade groups, is a far ciy from evidence of cooperative or concerted
activities under the second prong of the concert of action theo1y." Id. In support of their argument,
Defendants cite Smith v. Univar USA, Inc. In Smith, the plaintiffs alleged the defendants acted in
concert to conceal the dangers of the chemicals they made and sold to their employer without proper
warning by: 1) substantially assisting the others' efforts to keep consumers ignorant of the dangers
of the chemicals; 2) sponsoring its own misleading research about the chemicals' dangers to
substantiate the other defendants' inadequate warnings; and 3) creatingjoint defense agreements and
coordinating their responses to government agencies to "present false or misleading information
22
about the health risks" of the chemicals. Id at *1. The court dismissed the claim, noting parallel
activity was insufficient to state a concert of action and finding there were no factual allegations
suggesting an agreement or common design between the defendants or any allegations of what
substantial assistance each defendant gave to the other defendants.
Similarly, in Rastelli v. Goodyear Tire & Rubber Co., 591N.E.2d222 (N. Y. 1992), the court
held a trial comi erred in not granting summaty judgment to a manufacturer on conceti of action
based on a defendant's and other manufacturers' parallel activities directed to a government agency
as well as lobbying effotis. The court held a manufacturer of a multipiece tire rim that separated
explosively killing plaintiffs decedent could not be subject to concerted action liability based on the
defendant's and other manufacturer's lobbying effotis. The plaintiff had alleged and submitted
evidence that the rim manufacturers had: campaigned through their trade association for OSHA to
make employers rather than manufacturers responsible for safe truck maintenance; decided not to
issue warnings; successfully lobbied against a ban on production of mulitpiece rims; and declined
to voluntarily recall the rims at issue. Id. The comi concluded that these activities were insufficient
to support the plaintiffs claim of conceti of action because plaintiffs evidence demonstrated only
parallel activity by the rim manufactures, it did not "raise an issue of fact as to whether the rim
manufacturers were parties to an agreement or common scheme to commit a tort." Id. at 224-25.
Similarly, here, Plaintiffs have not pointed to any evidence demonstrating that Arch or
Osmose acted by agreement or common design to prevent warning labels from being affixed to CCA
poles or to conceal the dangers of CCA as alleged. At most, the EPA administrative decision
suggests both Arch and Osmose were involved in a legal challenge to the EPA' s authority to regulate
labeling of treated wood as part of its registration process. However, a review of the administrative
23
case does not suggest Arch, Osmose and/or any other chemical manufacturers formed an agreement
or acted in concert to prevent warning labels being placed on the poles. Moreover, there is no
showing of any specific involvement by Arch and Osmose in this process, or that what involvement
they presumably did have was anything other than parallel activity to legally challenge the EPA's
exercise of unauthorized authority. Nor is the Court inclined to speculate in this regard.
Second, Plaintiff asserts that a 2001 Memorandum from American Wood Preservers Institute
(A WPI) is evidence that the chemical-manufacturer's acted cooperatively or by concerted activity
to prevent warning labels from being affixed to CCA-treated poles or to otherwise conceal known
hazards ofCCA. [Docket No. 180-28). In the memorandum, A WPI's President and CEO explained
that A WPI, Arch, Osmose and CSI had been working with the EPA to develop an enhanced
consumer awareness program for CCA-preserved lumber. Id. The memorandum then explains the
aspects of the new program, including labeling with "new key safety statements" for certain
products, and encouraged its members to implement the new program promptly. To the extent
Plaintiff argues this memorandum demonstrates Arch and Osmose were working in concert, that is
not enough. The Plaintiff must demonstrate that the "manufacturers acted to1tiously, pursuant to a
common design .... " Farmer, 748 S.W.2d at 164; see also Rastelli, 591 N.E.2d at 225 (must prove
activity was to1tious in nature).
To the extent Plaintiff implies that because the new program referenced in the memorandum
did not include labeling for CCA utility poles is evidence of Arch and Osmose's concerted action
to preclude labeling on utility poles, the memorandum does not support his argument. In fact, the
memorandum demonstrates the new program was not intended to preclude labeling of utility poles.
The memorandum provides:
24
[S]everal pole or piling treaters have asked [] about the new enhanced consumer
awareness program. Certainly, you should begin using the Consumer Safety
Information Sheets. And if you want to include the new labels on your poles and
pilings, that would be fantastic.
[Docket No. 180-28]. The fact the chemical manufacturers worked with the EPA to develop a
voluntary consumer awareness program and to develop industry standards in this regard does not
demonstrate a concerted action to commit a tortious act or to aid another in wrongful conduct. See
cf Dawson, 1988 WL 123929, at *2 (W.D. Ky. 1988) (granting summary judgment finding the fact
all defendants adopted same warning language proposed by FDA did not demonstrate conceited
action).
Lastly, Plaintiff claims that a document identified as technical data on CCA-treated poles,
which he claims constitutes evidence that Arch and Osmose "have produced marketing materials
advertising their product as being safe," but that they "contradict safety information about the
hazards of the CCA chemical and CCA utility poles." [Docket No. 180 pg. 18]. Although Plaintiff
argues that this document is evidence of Arch and Osmose's marketing materials, this document
does not suggest in any way that they had an agreement or otherwise worked in conceit to produce
marketing materials. A review of the pamphlet reveals that it is was produced solely by Arch. There
is nothing in the pamphlet that references Osmose or otherwise suggests Arch and Osmose were
working together to either prevent warning labels from being affixed to CCA-treated utility poles
or to conceal known hazards of the poles. Nor has Plaintiff pointed to any testimony suggesting that
this pamphlet establishes such an agreement or joint effort to this end. Even if Plaintiff could prove
that Osmose produced a pamphlet or other materials containing information similar to that contained
in the pamphlet produced by Arch, this would be insufficient to establish that Arch and Osmose
25
acted in conce1i, absent some evidence of a tacit or express agreement between the two Defendants.
Again, at most, this would suggest parallel activity, which, as discussed herein, is insufficient to
establish conce1i of action. See Smith, 2013 WL 1136624, at *5 (citing Dawson, 658 F. Supp. at
1040).
These three documents are the extent of the evidence Plaintiff points to in his eff01i to
demonstrate a concert of action theo1y against Arch and Osmose. As discussed, these documents
do not evidence any agreement, tacit or otherwise, between Arch and Osmose to preclude warning
labels from being affixed to CCA-treated utility poles or to conceal the dangers of CCA. Thus,
Plaintiff has not demonstrated he has any evidence to prove these Defendants acted cooperatively
or in conce1i to carry out a tortious act as is necessary to maintain a concerted action theory. At
most, the evidence demonstrates these two manufacturers engaged in parallel action, which is not
sufficient. Without proving concert of action, Plaintiffs claims against Arch and Osmose on this
the01y cannot survive Defendants' Motions for Summmy Judgment on Product Identification. See
Dawson, 1988 WL 123929, at* 3 (granting summary judgment, finding "plaintiffs have not shown
the court any memorandum, any letter, any shred of an agreement that would imply the defendants
cooperated or acted in concert").
III.
CONCLUSION
IT IS ORDERED that:
1.
Defendants' Motions for Summmy Judgment on Product Identification [Docket Nos.
156 and 163] is SUSTAINED;
26
2.
Plaintiffs having failed to demonstrate a prima facie element of their case sufficient
tosurvivesummmyjudgment,allotherpendingMotions [DocketNos.157, 158, 159, 160, 161, 162,
164, 165, 166, 167, 168) are OVERRULED AS MOOT; and
3.
Judgment is entered in Defendants' favor and this matter is stricken from the active
docket of the Court.
<}J~
Dated thi~ day of September, 2016.
Signed By:
Henry R. Wilhoit. Jr.
United States District Judge
27
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