Brown v. Arch Wood Protection, Inc. et al
MEMORANDUM OPINION & ORDER: 1. Defendants' Motion for Summary Judgment on Product Identification DE 159 is SUSTAINED. 2. Plaintiff having failed to demonstrate a prima facie element of his case sufficient to survive summary judgment, al l other pending Motions DEs 154, 157, 160, 161, 162, 163, 164, 165, 189, are OVERRULED AS MOOT; and 3. Judgment is entered in Defendants' favor and this matter is stricken from the active docket of the Court. Signed by Judge Henry R. Wilhoit, Jr on 9/25/17.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 13-61-HRW
KEVIN W. BROWN,
MEMORANDUM OPINION AND ORDER
ARCH WOOD PROTECTION, INC., et al.
This is a failure to warn products liability action wherein Plaintiff Kevin Brown, who
works for a utility company, alleges he sustained harm from being occupationally exposed
to toxic levels of arsenic contained in a chemical used to preserve the wood in utility poles
on which he worked. [Docket No. 1]. The Court now has before it several fully briefed
motions. Specifically, three chemical preservative manufacturer Defendants and three woodtreating company Defendants have filed Daubert motions challenging the admissibility of
certain testimony of Plaintiff's experts, and these Defendants contend the exclusion of this
testimony requires judgment be entered in their favor as a matter oflaw. [Docket Nos. 163,
164, 165]. In addition, Defendants have filed summmy judgment motions arguing that Mr.
Brown's products liability claim fails on the issue of product identification and that his
employer's failure to properly train and warn him was the superseding cause of his injuries.
[Docket Nos. 159, 162]. Certain Defendants have also filed summmy judgment motions
arguing that because Mr. Brown's expert on warnings admitted his opinion was not directed
to the chemical manufacturers and Defendant Langdale, Plaintiff cannot establish his failure
to warn claim against them. [Docket Nos. 160 and 161].
Mr. Brown also has dispositive motions pending. Specifically, Mr. Brown filed two
summary judgment motions arguing that he is entitled to judgment as a matter oflaw on two
issues: that he suffered cacosmia 1 as a result of his exposure to the arsenic in the chemical
used to treat utility poles; and that two of the chemical manufacturers failed to warn of the
hazards caused by splinters from wood treated with the chemical. [Docket Nos. 154 and
157]. In addition, after the close of all discovery and the filing of dispositive motions, Mr.
Brown moved for an order compelling initial disclosures by the Defendants, specifically
insurance policies from 1985 to the present. 2 [Docket No. 189].
In considering these various motions, the Court finds its ruling in Stevens v. Arch
Wood Protection, 0: 12-cv-46-HRW, 2016 WL 5660362 (E.D. Ky. Sept. 28, 2016) is directly
on point. The plaintiff there alleged his decedent was harmed from his exposure to the
chemical used to preserve the wood in the utility poles on which he worked. This Court held
defendants were entitled to judgment as a matter of law because plaintiff failed to present
sufficient evidence supporting a reasonable inference that plaintiff's decedent was exposed
to the defendants' products. Further, plaintiff had not established the requirements to support
Dr. Timothy Allen testified that cacosmia is "a disordered sense of smell in which typically nonnal
or pleasant smells are interpreted as offensive or noxious." [Docket No. 157-11, pg. 4). Dr. Christopher
Allen similarly defined it as an "aversion to smells that typically arc perceived as pleasant." [Docket No. 1632, pg. 22).
This Motion is not directed at Chemical Specialties, Inc. as it provided Plaintiff with the
information he requested.
his concert of action theory against the two chemical-manufacturing defendants involved in
As explained below, Mr. Brown's claims suffer from the same deficiencies. That is,
Mr. Brown has not pointed to any evidence supporting a reasonable inference that he was
exposed to any of these Defendants' specific products. Nor has he raised any issues of fact
on his concert of action theory. Thus, for the reasons more fully set forth below, the Court
will grant Defendants' Motion for Summary Judgment on Product Identification. [Docket
Nos. 159]. Because lack of product identification is dispositive of the case, the parties'
respective challenges on causation, failure to warn and Plaintiff's opinion testimony are
moot, as is Plaintiff's Motion seeking to compel initial disclosures.
Mr. Brown alleges that during his employment at Kentucky Power Company
(Kentucky Power) he was exposed to arsenic, chromium and copper contained in the
chromated copper arsenate (CCA) chemical compound used to preserve the wood in utility
poles and cross-arms. [Docket No. 1, iJiJ 13-14, 47 and Deposition of Kevin Brown, Docket
No. 159-2, pgs. 20, 34-37]. Mr. Brown began working for Kentucky Power in 1981 and is
still so employed. [Docket No. 159-2, at pgs. 7, 47]. He began his career on the line crew
with Kentucky Power's Ashland Division, and he remained on the line crew until
This factual summary is taken in large part from those set forth in Defendants' Motion because
Plaintiff has "accept[ed] the Statement of Undisputed Facts of the Joint Defendants in their Motion for
Summary Judgment on Product Identification." [Docket No. 168, pg. 3].
approximately 2003 or 2004. [Docket No. 159-2, pgs. 47-48]. In addition to building new
facilities, line crews at that time had the responsibility for extinguishing pole fires. 4 [Id. and
Docket No. 159-3, pgs. 3-4]. Mr. Brown moved from the line crew to a servicing position
in 2003 or 2004. [Docket No. 159-2, pg. 63]. In his servicing position, Mr. Brown still
climbs poles, including CCA-treated poles, but rarely, if ever, fights pole fires. 5 [Id. at pgs.
8, 18, 63].
Mr. Brown alleges he was diagnosed with "adverse health effects consistent with
significant exposure to arsenic from the CCA utility poles he handled, sawed, drilled, and
extinguished fires [on]." [Docket No. I,
Mr. Brown testified his adverse health
effects include shortness of breath, fatigue, burning eyes, sensitivity to smells, numbness and
tingling in his hands and feet, stiff joints in his neck, hip, ankles and knees, lower back pain
and scarring from splinters. 6 [Docket No. 159-2, pgs. 4-6, 8-19, 29-30]. Mr. Brown stated
he believes his health ailments are all caused by his exposure to the chemicals contained in
Mr. Brown explained pole fires were generally caused by a cutout or insulator failure on the pole,
but could also be caused by lightning. [Docket No. 159-2, pgs. 54-55, 61]. Over the years, pole fires have
become less frequent due to the installation of a new epoxy-style cutout on the poles and preventative
maintenance. [Id. at pgs. 61, 63).
' Mr. Brown testified that in the last several years, he has not had to address a pole fire because
servicemen now call the fire department to put out the fires. [Docket No. 159-3, pg. 63].
While Mr. Brown alleged in his Complaint that he also suffered from a "loss of concentration and
diffuse feelings with the need for psychosocial testing to test for cognitive or psychodynamic depression"
[see Docket No. I, pg. 11~33], he stated in his Response to the Joint Motion to Exclude the Testimony of
C. Christopher Allen and for Summary Judgment on Cognitive Impairment and Cacosrnia that he is not
asserting a separate claim for cognitive impairment. [Docket No. 173, pg. 41 ].
CCA-treated utility poles, and he places specific emphasis on the arsenic in the CCA. 7 [Id.
at pgs. 20, 26-27, 29-32].
Mr. Brown filed this action against three producers of CCA (the chemicalmanufacturing Defendants: Arch Wood Protection, Inc. (Arch), Osmose Inc. (Osmose), and
Chemical Specialties, Inc. (CSI)) and three purchasers of CCA who used it to treat utility
poles (the wood-treating Defendants: Koppers, Inc. (Koppers), Langdale Forest Products
Company (Langdale), and T.R. Miller Mill Company, Inc. (T.R. Miller)). [Docket No. I,
2-3]. Plaintiff claims that Defendants knew of the health hazards caused by CCA
exposure, but failed to warn of these dangers. [Id.
15, 17-18, 24, 31, 35-38, 46, 47, 49,
Defendants Arch, CSI, and Osmose admit in their respective Answers that they
manufactured CCA and sold it to certain of the wood-treating Defendants. [Docket Nos. 48,
pgs. 1-2; 49, pgs. 1-2 and 51, pgs. 1-2]. Defendants Koppers, Langdale, and T.R. Miller
admit that they purchased CCA preservative from Arch, Osmose or CSI to treat utility poles
they sold to Kentucky Power.
[Docket Nos. 38, pgs. 3-4; 50, pg. 2 and 52, pg. 2].
Specifically, Koppers and T.R. Miller admit they bought CCA from Arch. [Docket Nos. 50,
In his Response, Mr. Brown explains that "[t]he product at issue in this case is arsenic.
Specifically, the product is inorganic arsenic in the forms of: (!) pcntavalent arsenic; and (2) trivalent
arsenic. . . . Pentavalent arsenic was used to treat the kiln-dried southern yellow pine utility poles.
Pentavalent arsenic converted to the more toxic form of trivalent arsenic when the utility poles were burned."
[Docket No. 168, pgs. 1-2].
pg. 2 and 52, pg. 2). Defendant Langdale admits it bought CCA from CSI and Osmose.
[Docket No. 38, pg. 3).
The wood-treating Defendants contend, and Plaintiff does not dispute, that while they
sold CCA-treated poles to Kentucky Power, they were not the only pole suppliers to
Kentucky Power. . Defendants presented records demonstrating that Kentucky Power
purchased poles from at least seven other suppliers from 1992 to 2003. [Docket Nos. 159-4).
Further, testimony was provided that there is no way to know where any particular pole
purchased by Kentucky Power is installed. [Deposition of Timothy Weinmann, Docket No.
159-5, pg. 19).
Mr. Brown explained in his Answers to Kopper's First Set of Interrogatories that
while employed with Kentucky Power he has been exposed to arsenic, chromium and copper
in CCA-treated utility poles through handling, drilling, sawing and climbing the poles.
(Docket No. 159-6, pgs. 12-13). He also stated he inhaled smoke while drilling the poles and
while putting out fires on the poles. [Id.]. Mr. Brown stated his exposures occurred in
Kentucky Power's Ashland Service Area, and he also mentioned he worked storm restoration
for other utility companies outside the area. [Docket No. 159-6, pgs. 12-13).
Mr. Brown testified that he attended hundreds of pole fires over the years, but he has
not made any effort to identify the specific poles on which he fought fires. [Docket No. 1593, pgs. 8, 55; see also Plaintiff's Objections and Responses to Defendant Kopper's First
Requests for Admissions, Docket No. 159-7, pg. 4 (Mr. Brown admitted he "ha[s) not
identified any specific utility pole that caused [his] alleged illness(es) in this lawsuit.")]. Mr.
Brown also testified that he did not have any documents identifying the poles on which he
fought fires. [Docket No. 159-3, pg. 8].
Defendants state they took the depositions of24 of Mr. Brown's co-workers, but none
of them could recall a specific pole fire they worked with Mr. Brown. Defendants filed six
depositions as being representative of the testimony provided. 8 [Deposition of Carl Davis,
Docket No. 159-10, pg. 14 (did not recall working a pole fire with Brown, but "sure [he]
probably did"); Deposition of Bill Fraley, Docket No. 159-11, pgs. 10, 12 (could not recall
a specific pole fire Mr. Brown worked on, but recalled him working fires); Deposition of
Lloyd Rayburn, Docket No. 159-12, pg. 8 (could not recall a specific pole fire he worked on
with Mr. Brown, but assumes they did work fires together because they were on the same
crew); Deposition of Tony George, Docket No. 159-13, pg. 14 (saw Mr. Brown fight a lot
of fires from a bucket truck, but could not recall a specific pole fire); Deposition of George
Johns, Docket No. 159-14, pgs. 7, 14 and 21 (could not recall encountering a pole fire with
Mr. Brown, but probably did); Deposition of Phillip Tolliver, Docket No. 159-15, pg. 35 (no
specific recollection of seeing Mr. Brown responding to a pole fire)].
Defendants seek summaiy judgment, arguing that because Mr. Brown has not
produced any evidence he was exposed to their specific products, he cannot meet his burden
Defendants did not file all 24 depositions in the record, but offered to do so upon the Court's
request. [Docket No. 159-1, pg. l 0 n.9]. Given the representative depositions provided and Plaintiffs
acceptance of Defendants' presentation of facts, see Docket No. 168, pg. 3, the Court finds the additional
depositions are not needed to adjudicate the pending Motion.
of proving any of the Defendants' products specifically were a substantial cause of his
injuries. [Docket No. 159-1]. In response, Plaintiff does not point to any evidence of his
exposure to Defendants' products specifically, but argues he is not required to do so. He
instead maintains that under a concert of action theory, the burden shifts to Defendants to
prove their product was not the cause of his injuries. [Id. at pgs. 7-8].
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 C01p. 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 party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The moving party has the ultimate burden of persuading the
court that there are no disputed material facts and that he is entitled to judgment as a matter
oflaw. Id. Once a party files a motion for summary judgment properly supported by either
affirmatively negating an essential element of the nonmoving party's claim or establishing
an affirmative defense, "the adverse party must set forth 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.
Mr. Brown Has Not Presented Any Evidence Demonstrating That He Was
Exposed to Defendants' Products Specifically.
This Court set forth the applicable law on product identification for a Kentucky
products liability claim in Stevens, 2016 WL 5660362, at **4-5, a case factually similar to
the case at bar. Specifically, this Court explained:
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) [(citing Holbrookv. W.A.
Rose, 458 S.W.2d 155, 158 (Ky. 1970)]; see also In 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 link it to a
particular defendant); In re j\;fartin v. Cincinnati Gas & Elec. Co., No. 02-201,
2006 WL 6353627, at *l (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 summaiy
judgment.") (citing Roberts v. Owens-Corning Fiberglas C01p., 726 F. Supp.
172, 174 (W.D. Mich. 1989)). To that end, a plaintiff is required to show, for
each defendant, thathe 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 [v. Eaton Corp., No. 2013-CA-002005-MR,] 2016 WL 3887037,
at **3-4 [(Ky. Ct. App. July 15, 2016) ("Simply put, the plaintiff must prove
that the defendant supplied the product that caused the plaintiffs disease or
injury.") (unpublished) (citing Lindstrom, 424 F.3d at 492) (the plaintiff is
required to prove exposure to a "specific product" attributable to the
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 S.W.2d
141 (Ky. 1980)); Restatement (Second) of Torts§ 431 (l)(a). While causation
is generally a question of fact for the jury, 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)).
Stevens, 2016 WL 5660362, at **4-5.
Stevens is directly on point. In Stevens, the plaintiff alleged his decedent, Mr. Stevens,
who was Mr. Brown's co-worker, was harmed from his exposure to CCA used in the wood
utility poles on which he worked. This Court held plaintiff failed to present sufficient
evidence supporting a reasonable inference that Mr. Stevens was exposed to the defendants'
products specifically, finding it fatal to plaintiffs products liability claim that he could not
point to a single pole Mr. Stevens worked on that was supplied by one of the wood-treating
defendants and he had not pointed to any evidence placing defendants' products in his
immediate work environment. This Court held that "[m]erely stating that [d]efendants'
products were somewhere at Kentucky Power was not sufficient to demonstrate their
presence at the specific work sites where he worked." Stevens, 2016 WL 5660362, at **5-9.
Plaintiff had not submitted sufficient evidence to permit a jury to reasonably infer that Mr.
Stevens was exposed to defendants' particular products and thus he could not demonstrate
their products were a substantial factor in causing Mr. Stevens's harm. Id. at *9. Thus,
summary judgment was granted to defendants.
Mr. Brown's products liability claim suffers from the same product identification
deficiency as Stevens-he has not identified a single pole that he worked on and thus cannot
connect his injuries to any of the Defendants' products. Mr. Brown admitted he has not
identified a specific pole that caused any of his illnesses. (Docket No. 159-7, pg. 4]. He also
testified that while he could drive around and point out poles on which he fought fires, he has
not made any effort to identify any such poles. [Docket No. 159-3, pg. 8]. Further, he
testified he has no documents in his possession that indicate on which poles he fought fires.
[Id.]. In addition, Plaintiff does not dispute that none of his 24 co-workers who were
deposed were able to identify a specific pole on which he fought a fire. Nor has Mr. Brown
pointed this Court to any other evidence, direct or circumstantial, that demonstrates he was,
in fact, exposed to any of the Defendants' products.
While Mr. Brown does not make any argument trying to connect his injury to
Defendants' products specifically, to the extent various factual statements in his briefing can
be read as an attempt to raise sufficient facts from which a jmy could infer he was exposed
to Defendants' products, the statements are not sufficient to raise a permissible inference.
As the plaintiff did in Stevens, Mr. Brown points generally to the fact that Kentucky Power
bought utility poles from the wood-treating Defendants, which poles had been treated with
the chemical-manufacturing Defendants' CCA. But Brown does not dispute that Kentucky
Power also bought poles from at least seven other companies.
Further, while Plaintiff makes a statement in his Response that "evidence and
reasonable inferences from the evidence establish that Kevin Brown was exposed to
hundreds of utility poles that contained arsenic from Arch" and "[t]he same inference applies
to all Defendants," he does not point to any actual evidence upon which the Court could
make such reasonable inferences. 9 [Docket No. 168, pgs. 8-9). Nor does Mr. Brown make
any attempt to connect any of the Defendants' products to a specific exposure. It is well
established that a party opposing a motion for summary judgment must present evidence
supporting his claims-"concluso1y allegations, speculation, and unsubstantiated assertions
are not evidence, and are not sufficient to defeat a well-supported motion for summary
judgment." See cf Jones v. City ofFranklin, 677 F. App'x 279, 282 (6th Cir. 2017) (citing
Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
The only other facts raised by Plaintiff in his Response that arguably could be directed
to product identification concern only Defendant Arch:
Arch was the sole supplier of arsenic to T.R. Miller and Koppers. Arch was
the only warrantor of the chromated copper arsenate utility poles. Arch was
the self-proclaimed leader in the industly (50% of sales). Arch spent millions
of dollars on marketing, which resulted in hundreds of millions of dollars in
sales ofWolmanized® Brand Products. The circumstantial evidence and the
inferences from the evidence establish that Arch supplied a substantial amount
of the arsenic used to treat thousands [of] utility poles sold to Kentucky Power,
to which Kevin Brown was exposed, beginning in 1985.
It is not the role of this Court to scour the record for evidence in support of Brown's assertions.
See Emerson v. Novartis Phann. Co1p., 446 F. App'x 733, 736 (6th Cir. 2011) ("[J]ndges are not like pigs,
hunting for truffles' that might be buried in the record.") (quoting United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991)).
[Docket No. 168, pg. 28]. Mr. Brown also states "the evidence and inferences from the
evidence establish that Arch was a prima1y supplier of arsenic to other wood treaters who
sold chromated copper arsenate utility poles to Kentucky Power." 10 [Id. at pgs. 27-28].
However, even assuming these statements to be true, they do not support an inference that
Plaintiff was exposed to Arch's product or that its product was the substantial cause of his
Like the Stevens case, this case is analogous to Collins v. Ansell, Inc., 2003 WL
22769266. 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 summaiy judgment where the attempted link was based on
speculation. Collins, 2003 WL 22769266. 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 injury by someone moving the gloves from
place to place or by airborne contaminates. Id. at *2. The court noted plaintiffs theories did
not have sufficient evidentiary foundation to sustain the reasonable inferences necessaiy to
support them and, while possible, were mere speculation. Id. at *3. Thus, the fact that the
defendant supplied gloves to the hospital and that they were used somewhere in the hospital
Defendants argue these assertions are Mr. Brown's attempt to advocate for a market share theory.
[Docket No. 175, pgs. 8-l OJ. But as Defendants note, Kentucky law does not recognize such a theory. See
Dawson v. Bristol Labs., Nos. 83-937L, 83-941L, 83-942L, 83-992L, 1988 WL 123929, at *1 (W.D. Ky.
1988) (Kentucky law does not recognize a market share liability theory to bridge the causation gap).
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. 11
Here, like Collins, Mr. Brown has only demonstrated that the wood-treating
Defendants' products, along with those of at least seven other suppliers, were used by his
employer. Also like Collins, Mr. Brown has not presented any evidence that he came into
contact with or was exposed to any of the Defendants' products. Simply pointing to the fact
that Defendants' products were used somewhere at Kentucky Power, without more, does not
make it more likely than not that a wood-treating Defendant's CCA-treated utility poles, or
a specific chemical-manufacturing Defendant's CCA, were a substantial factor in causing
Bryant v. Tri-County Electric Membership C01poratio11, 844 F. Supp. 347 (W.D. Ky.
1994) is also instrnctive on the issue of product identification. In Bryant, 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 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 plaintiffs had no evidence it
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 supported
causation. Colli11s, 2003 WL 22769266, at *3. Because the comt was unsme ifthe additional evidence would
prevent summary judgment, it permitted plaintiff additional time to obtain her evidence. In a later summary
decision, the comt noted plaintiff had not filed additional discovery or a supplemental memorandum, and
entered summary judgment for the defendant glove manufacturer for the reasons stated in the prior decision.
See Collins v. Ansell, Inc., No. 3:98-cv-259, 2004 WL 524912 (W.D. Ky. Mar. 2, 2004).
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 court held
"Kentucky law simply does not permit a jury to hold a party liable on the strength of a onein-six possibility that the party acted itTesponsibly." Id. at 354. The court 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 five other
manufacturers. Id. The court granted summary judgment for Kuhlman, finding plaintiffs
could not identify Kuhlman as the manufachirer of the transformers that allegedly contributed
to plaintiffs' injuries.
B1ym1t is analogous to the matter at hand. Kentucky Power purchased CCA-treated
utility poles from at least ten suppliers from 1992 to 2003, but has no knowledge of where
each pole purchased is located in its large network. Without direct or circumstantial evidence
that Mr. Brown was exposed to any of the wood-treating Defendants' utility poles or to a
specific chemical manufachirer's CCA, there is no basis to present this to a jmy and permit
it to infer that exposure to any of Defendants' products was a substantial factor in the harm
he sustained. "While reasonable inferences are permissible, a jury verdict must be based on
something other than speculation, supposition or surmise." See R & B Aircraft, Inc. v. ABG
Ambulance Services, 949 F.2d 397, 1991 WL 256705, at *4 (6th Cir. 1991) (table decision)
(quoting Huffinan v. SS. Mmy & Elizabeth Hosp., 475 S.W.2d 631, 633 (Ky. 1972)).
In conclusion, Mr. Brown has not pointed to any evidence that he handled, sawed,
drilled or fought a fire on a wood-treating Defendants' CCA-treated utility pole or that he
was otherwise exposed to a specific chemical-manufacturing Defendant's CCA. Kentucky
Power's purchase of CCA-treated poles from the wood-treating Defendants, and its
installation of those poles somewhere in its network, points only to a possibility that Mr.
Brown worked on a pole supplied by one of the wood-treating Defendants. Further, even
though Mr. Brown testified to instances of fighting pole fires, without evidence of who
manufactured any of those poles, this evidence does not establish the probability that the
poles involved in those fires were supplied by a wood-treating Defendant. Mr. Brown's
failure to identify any specific poles that allegedly caused his injuries also precludes him
from identifying the chemical-manufacturer(s) who supplied the CCA for those poles. Thus,
to the extent Mr. Brown's briefing can be read as an attempt to set forth sufficient
circumstantial evidence to permit a jury to reasonably infer that he was exposed to any
particular Defendant's product, his attempt fails.
Concert of Action
The thrust of Mr. Brown's argument in response to Defendants' Motion for Summary
Judgment on Product Identification is that under a concert of action theory, the burden shifts
to Defendants to prove they are not responsible for his injury. 12 [Docket No. 168, pgs. 7-8].
A plaintiff may proceed under a concert of action theory to bypass the causation requirement
if he can prove that the defendants acted tortiously pursuant to an agreement or common
design or that they rendered substantial assistance to others to accomplish a tortious act.
Dawson, 1988 WL 123929, at *3. Plaintiff points to documentary evidence that he alleges
establishes that the Defendants, in various combinations, acted in concert to conceal the
hazards of arsenic in CCA-treated utility poles. Mr. Brown's analysis as to how concert of
action applies in this case, however, is often difficult to follow and/or understand. As
explained more throughly below, the Court has reviewed his arguments and the evidence on
which he relies, and finds Mr. Brown's presentation does not lead to a reasonable inference
that the Defendants, in any combination, acted tortiously pursuant to an agreement or
common design as Mr. Brown asserts.
As discussed in Stevens, Kentucky law recognizes a concert of action theory in
products liability cases. Farmer v. City of Newport, 748 S.W.2d 162 (Ky. Ct. App. 1988).
While Plaintiff alleged in his Complaint that the chemical-manufacturing Defendants acted in
concert to conceal the dangers of arsenic in CCA-treated wood by failing to properly warn of its dangers, he
did not make such allegations against the wood-treating Defendants. Nevertheless, the Court will consider
Plaintiffs arguments as to all Defendants.
In Farmer, the Kentucky Court of Appeals applied the concert of action the01y as set forth
Section 876 of the Restatement (Second) of Torts:
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.
Farmer, 748 S.W.2d at 164 (quoting Restatement (Second) of Torts,§ 876); see also Smith
v. Univar USA, Inc., No. 12-134-ART, 2013 WL 1136624, at *5 (E.D. Ky. Mar. 18, 2013)
(granting motion to dismiss concert of action claim where plaintiff did not allege facts
demonstrating necessaty elements for such a claim).
While Mr. Brown has not stated which provision he is relying on, his assertions appear
to fall under § 876(a) of the Restatement because he argues the Defendants, in different
combinations, acted in concert in various ways to conceal the known hazards of the arsenic
contained in the CCA. [Docket Nos. 168, pgs. 4-26]. Mr. Brown has not alleged facts or
pointed to documents that warrant the application of the other two subsections of the
Restatement. Specifically, he does not argue or point to evidence demonstrating any of the
Defendants provided substantial assistance or encouragement to others to accomplish a
Federal courts in Kentucky have applied three elements in analyzing concert of action
in products liability cases. Stevens, 2016 WL 5660362, at* 1O; 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 plaintiffs injuries ... Second,
plaintiffs must establish that the defendants acted by cooperative or concerted
activities ... Finally, plaintiffs must prove defendants contravened a particular
standard of care.
Eastridge, 2014 WL 4916236, at *3 (quoting Dawson, 658 F. Supp. at I 038-40). 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 concert of action theory.
Smith, 2013 WL 1136624, at *5; 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, 1988 WL 123929, at *3
(W.D. Ky. 1988).
Here, Mr. Brown states he has established the elements under a concert of action
theory. Specifically, he explains:
The Plaintiff, Kevin Brown, has satisfied the first element of the concert of
action the01y ofliability outlined in the Dawson case. The product is inorganic
pentavalent and trivalent arsenic. Arch, Osmose and CSI are the only
manufacturers of the arsenic used by the wood treaters.
The second factor in Dawson that the joint defendants acted in concert is
Kevin Brown has satisfied the third factor that Defendants have contravened
a particular standard of care in failing to communicate adequate warnings
about the nature and extent of the hazard of arsenic.
[Docket No. 168, pg. 8). Mr. Brown contends there are three combinations of Defendants
who acted in concert: I) Arch and Osmose; 2) Arch, Osmose, and CSI; and 3) all Defendants.
Mr. Brown attached 27 documents to his Response that he presumably contends satisfy these
elements and demonstrate Defendants, in the various combinations, acted in concert to
conceal the hazards of arsenic in CCA-treated wood by, among other things, failing to warn
of its known dangers.13 [Docket No. 168).
Defendants respond that Mr. Brown has failed to establish the required elements of
concert of action. First, they argue that Mr. Brown ignores the first element requiring him
"to prove that the defendants' acts in marketing and promoting the allegedly defective
product were a substantial factor in causing [his] injuries." [Docket No. 175, pgs. 6-7). They
also argue that Mr. Brown's conclusory statement that he has established that Defendants
acted in concert in failing to warn of the hazards of arsenic is also not supported by the
evidence. Defendants contend that they are and were competitors in their respective markets
and have independently marketed their products. Defendants contend that while they may,
at times, have overlapping interests, there is no evidence that they acted in concert to commit
a tortious act or that they provided substantial assistance or encouragement to others to
accomplish a tortious act.
While Plaintiffs Response contains 28 exhibits, Exhibit J [Docket No. 168-10 and 170-1] is a
duplicate of Exhibit L [Docket No. 168-12].
While Mr. Brown has not provided a specific analysis as to how the documents he
cites support his argument that a concert of action theory applies in this case, the Court has,
as it is required to do, carefully reviewed the evidence presented on this issue, viewed it in
the light most favorable to Mr. Brown, and drawn all reasonable inferences in his favor. The
Court has not, however, scoured the record for evidence to support Mr. Brown's arguments
and assertions. See Emerson, 446 F. App'x at 735-36 ("a party opposing a motion for.
summary judgment must 'cit[e] to particular parts of materials in the record' .... it [is] not
the district court's duty to track down those facts"). As discussed below, Mr. Brown's
presentation fails to establish that the Defendants, in any combination, acted pursuant to an
agreement or a common plan to conceal the hazards posed by the arsenic in the CCA-treated
Plaintiff has not presented evidence demonstl'ating Arch and
Osmose acted in concert to conceal the hazards of arsenic in CCAtreated wood.
Mr. Brown specifically argues that Arch and Osmose acted in concert in concealing
the dangers of arsenic in CCA-treated wood in two ways. First, he argues they "acted in
concert in denying that arsenic is in [CCA-]lreated wood." [Docket No. 168, pgs. 9-16].
Second, he argues these two Defendants "committed fraud in concealing the hazards of
exposure to arsenic in splinters" from CCA-treated wood. [Id. at pgs. 9, 14-17]. In addition,
while not expressly stating it is evidence of concert of action, Mr. Brown argues Arch and
Osmose had representatives on a subcommittee of American Wood Preservers Institute
[AWPI] when the subcommittee in 1977 provided inaccurate information to the EPA that
there were no reports of adverse effects from the use of various forms of inorganic
pentavalent arsenic as a wood preservative. [Id. atpgs. 24-25]. As discussed below, Plaintiff
has not pointed to any evidence that supports a finding that Arch and Osmose acted by
agreement or in concert to commit a tortious act under any of these circumstances.
Plaintiff has not presented evidence that Arch and Osmose
acted in concert in denying that arsenic is in CCA-treated
Mr. Brown argues Arch and Osmose acted in concert in concealing the hazards of
arsenic by denying that arsenic is in CCA-treated wood. [Docket No. 168, pgs.9-14]. In
support of this argument, Mr. Brown points to two documents: a June 16, 2000, Declaration
of William J. Baldwin, the former vice-president of Arch's predecessor, Hickson
Corporation, 14 which was filed in connection with a 2000 Lanham Act case brought in the
Northern District of Georgia [Id. at pgs.10-11]; and a 1995 Material Safety Data Sheet
(MSDS) of Osmose [Id. at pgs. 11-12]. 15 As discussed below, these documents do not
Mr. Robert Gruber, Arch's Director of Regulatory Affairs and Industry Relations, testified that
in l 989, Koppers Company became Hickson Company ("Hickson"), and Arch purchased Hickson in 2000.
[Deposition of Robert Gruber, Docket No. 178-13, pgs 5-6]. Defendants explain in their Reply that Koppers
Company, Arch's predecessor, is not the same entity as Defendant Koppers, Inc. [Docket No. 176, pg. 5 n.5].
" Mr. Brown also makes reference to Defendants' statements in certain filings in a related case,
Ma1111i11gv. Arch Wood, No. 13-127-HRW-CJS. [Docket No. 168, pgs. 12-13). However, it is not clear what
point Mr. Brown is trying to make with respect to his own case. He seems to be arguing that because the
Defendants have filed joint motions in this and related cases, the representations of one Defendant, regardless
of when made, are assumed to be accepted as the position of all. [Id. at pg. 13 ("With the filing of the Joint
Motion, there is a presumption that all Defendants have 'no conflicts of interest' and accept the position of
Arch and Osmose that [CCA]-treated wood docs not contain arsenic but rather a 'benign in-wood
preservative."'). Plaintiff does not cite any authority for this "presumption." Nevertheless, even assuming
all Defendants agree CCA docs not contain arsenic, Plaintiff has not pointed to any evidence to demonstrate
they reached this consensus by agreement or concerted activities.
support a reasonable inference that these two Defendants acted in concert to conceal the
hazards of arsenic in CCA-treated wood.
In the Northern District of Georgia Lanham Act case, Hickson filed suit against a
wood-treating company that sent an advertisement to retailers and distributors of CCAtreated wood, implying Hickson's product contained arsenic and that it, the advertiser, used
a preservative that did not contain arsenic. Hickson Co. v. Northern Crossarm Co., Inc., 235
F. Supp. 2d 1352, 1358-59 (N.D. Ga. 2002), reversed in part, 357 F.3d 1256 (I !th Cir. 2004)
(vacating summary judgment on Lanham Act claim, finding that while advertisement was
not literally false, court overlooked evidence on whether the advertisement was literally true
but misleading). Hickson argued that this advertisement was false and misleading in
violation of the Lanham Act. In a declaration filed in that case, Mr. Baldwin stated that
"Wolmanized® pressure-treated wood does not contain arsenic." 16 [Docket Nos. 168, pg.
10-14 (citing Hickson Co., 235 F. Supp. 2d at 1358-59); 168-3). Mr. Brown argues this
contention was rejected by the judge in that case, who found the undisputed facts before him
demonstrated that wood treated with Hickson's product did contain pentavalent arsenic.
[Docket No. 168, pg. 14]. 17
The court in Hickson explained that Hickson sold a brand of CCA that, upon being applied to
wood, was known as "Wolmanizcd" pressure treated wood. Hickson, 235 F. Supp. 2d at 1355.
The court's decision notes that Hickson explained its position regarding arsenic not being in its
CCA-treated wood. While Hickson initially alleged that its CCA-treated wood did not contain arsenic, in
response to defendant's motion for summary judgment Hickson clarified that its CCA-treated wood does not
contain "arsenic as understood by lay persons, i.e., the white powdery poison." Hickson, 235 F. Supp. 2d
at 1358-59. In reaching its findings that the evidence before it demonstrated the product contained
pentavalent arsenic, the court did not specifically address Mr. Baldwin's declaration.
Mr. Brown argues "Osmose agrees with the Declaration of William J. Baldwin" and
points to Osmose's 1995 MSDS, wherein it explains arsenic pentoxide is not in wood treated
with its CCA. [Id. at pg. 11 ]. Specifically, in explaining why wood treated with Osmose's
CCA does not require reporting of its storage and usc to state authorities under the Superfund
Amendment and Reauthorization Act of 1986 (SARA), Osmose stated in its MSDS:
Title III of SARA requires. companies to report to their state agencies the
storage of specific chemicals stored in volumes equal to or greater than the
Threshold Planning Quantity (TPQ). One of the specific chemicals is arsenic
The MSDS for Osmose Brand Pressure Treated Wood clearly indicates that the
product contains arsenic pentoxide. THIS IS INCORRECT but for a reason.
Osmose Brand Pressure Treated Wood contains arsenic in the form of a
chromium arsenate complex with the wood as a result of the fixation chemical
reactions of chromated copper arsenate and wood.
The MSDS refers to arsenic pentoxide because the A WP A Standard calls for
the expression of chromated copper arsenate retention in the treated wood on
the oxide basis, regardless of the form of chemicals used to formulate the
chromated copper arsenate wood preservative. These chemical forms are
always expressed on the oxide basis, i.e., ... arsenic pentoxide (As20s). The
arsenic as found in Osmose Brand Pressure Treated Wood is a chromium
copper arsenate complex. However, in order to comply with the A WP A
standards, the form of arsenic is merely expressed as the arsenic pentoxide
equivalent on the MSDS.
Since Osmose Brand Pressure Treated Wood does not contain arsenic
pentoxide but rather a chromium arsenate complex, you are not required to
report your storage of the same under Title III of SARA. However, if you
want, you may do so ....
[Docket No. 168-4, pgs. 5-6].
Mr. Brown argues that Osmose's statements "compare" with Arch's description of
its product, which Arch declared was "benign as compared to arsenic." [Docket No. 168, pg.
12). Mr. Brown also states Baldwin's declaration and Osmose's 1995 MSDS reflect a '"state
of mind' that knowingly conceals the hazard of arsenic," and he also emphasizes that Arch's
predecessor's claim that its pressure-treated wood "does not contain arsenic is a bald-faced
prevarication." [Id. at pgs. 13-14]. While not entirely clear, Mr. Brown seems to imply that
because Arch's predecessor denied arsenic is in its CCA-treated wood and Osmose explained
in an MSDS why arsenic pentoxide is a listed ingredient but did not require state reporting,
both viewed by Plaintiff as acts to conceal that arsenic is in CCA-treated wood, they must
have acted in concert. These documents, however, do not support such an implication.
Of note, in contrast to Mr. Baldwin's declaration, Osmose's 1995 MSDS does not
state that no form of arsenic is in its CCA, but explains why state reporting is not necessary
despite arsenic pentoxide being listed as an ingredient. Specifically, Osmose explains that
state reporting is not necessary because the wood "contains arsenic in the form of a
chromium arsenate complex," not arsenic pentoxide. Mr. Brown does not point to evidence
demonstrating the 1995 Osmose MSDS was incorrect, other than relying on another court's
factual finding in a 2000 Lanham Act case that the evidence before it in that case
demonstrated that Hickman's Wolmanized® pressure treated wood contained pentavalent
Further, Mr. Baldwin's declaration is dated almost five years after Osmose's MSDS
and does not suggest Hickman had any communications with Osmose, let alone an
agreement, regarding the representations made in this filing. Nor does either document
suggest the two worked in concert in reaching their conclusions or in making their respective
In fact, the purposes of the respective filings are completely different, and do not
suggest that the parties had an agreement or common design between them in making their
assertions. As discussed, Osmose was explaining why, despite the MSDS listing of arsenic
pentoxide as an ingredient in its CCA, state reporting was not required. Mr. Baldwin,
however, was explaining in the course of litigation why its competitor's advertisement that
suggested Hickman's product contained arsenic was false. This evidence does not support
a finding that Arch or its predecessor and Osmose had any interaction, let alone an agreement
or common design, to deny that arsenic is in CCA-treated wood. At most, the evidence
demonstrates Arch and Osmose may have made similar representations, which is insufficient
to support a concert of action theory. See Smith, 2013 WL 1136634, at *5 (granting motion
to dismiss concert of action claim, finding allegations of parallel activity were insufficient
to state such a claim) (citing Dawson, 658 F. Supp. at I 040).
Plaintiff has not pointed to evidence that demonstrates Arch
and Osmose acted in concert in concealing the hazards of
arsenic in splinters from CCA-treated wood.
Mr. Brown argues Arch and Osmose "committed fraud" in concealing the hazards of
arsenic in splinters from CCA-treated wood by their "use of the same half-truth in
Health/Safety Alerts." [Docket No. 168, pgs. 9, 14-18]. Specifically, Mr. Brown argues that
"[i]n obvious concert of action," Arch and Osmose included in their respective literature a
warning that "handling may cause splinters," which he contends is a "half-truth," in order to
conceal the hazards caused by the arsenic found in the splinters. [Id. at 14-16 (citing Docket
Nos. 168-7 (1992 MSDS of Arch's predecessor) and 168-8 (Osmose's July 25, 1994
environmental newsletter)]. Mr. Brown asserts that this "half truth" amounts to fraud. He
argues no warning was necessary for the obvious risk of getting a splinter from the wood, but
that a warning was necessary, and not provided, for the hazard the arsenic in the CCA posed
to a person getting a splinter. 18
Despite Plaintiff's contention to the conh·my, "the mere fact Arch and Osmose warned
that handling CCA-treated poles may cause splinters, in and of itself, is not evidence that
they acted in concert in formulating their respective warnings or in their decision not to
provide different warnings on the hazards of splinters from CCA-treated wood. In fact,
Arch's director of regulatory affairs and indushy relations testified that the statement
"handling may cause splinters" is the same cautionary statement contained on the MSDS for
Mr. Brown points to CSI's warnings for hazards caused by CCA splinters in its MSDS for 2001
and 2004 as examples of what he contends more accurately warn of the hazards of splinters caused by the
arsenic in the CCA. The mere fact CSI provides more thorough warnings in its 2001 and 2004 MSDS docs
not further Mr. Brown's concert of action theory against Arch and Osmose for warnings they issued in 1992
and 1994 respectively.
untreated wood. [Deposition of Robert Gruber, Docket No. 178-13, at pg. 20-21]. He
explained the statement refers generally to the handling of wood, treated or untreated. [Id.
at pgs. 21, 51].
Mr. Brown asserts that Arch's and Osmose's use of the same language in their
warning regarding splinters, which he contends constitutes a "half-truth," demonstrates
"obvious concert of action." [Docket No. 168, pg. 15]. The Court disagrees. Plaintiff has
not pointed to any testimony or documents from which a reasonable inference can be made
that Arch and Osmose had any collaboration with respect to the warning they provided
regarding splinters; let alone that such collaboration was a joint effort to conceal the dangers
of arsenic in the splinters. Concert of action requires more than parallel or imitative activity.
Brown is required to put forth some evidence that these Defendants acted in some
cooperative or concerted manner and these documents do not meet that burden. See Dawson,
1988 WL 123929, at *2 (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.").
Similarly, Mr. Brown's reference to a September 20, 1993, letter from John Butala to
Dr. Dale Hooper [Docket Nos. 168-12, 170-1] does not evidence Arch and Osmose had an
agreement, or otherwise acted cooperatively, to conceal the hazard of arsenic in splinters
from CCA-treated wood. 19 [Docket No. 168, pgs. 16-18]. At most, Mr. Brown's assertions
In this letter, Mr. Butala states he is following up with Dr. Hooper regarding their conversation
about one of Dr. Hooper's patients who suffered from multiple-site ulcerative lesions on his lower leg who
regarding this letter suggest Mr. Butala was hired by Arch to respond to Dr. Hooper
regarding his report of a complaint of a splinter injury by one of Dr. Hooper's patients.
Plaintiff suggests in his Response that Mr. Butala intentionally concealed the fact he was
hired by Arch when responding to Dr. Hooper. Plaintiff also finds of import that Mr.
Butala's letterhead contains contact information that suggests he is writing from the School
of Pharmacy at Duquesne University, but yet the telephone and fax numbers provided on the
letterhead match those provided on his curriculum vitae for his business, Toxicology
Even assuming Mr. Butala intentionally concealed that he had been hired by Arch to
provide information to Dr. Hooper regarding the health effects of CCA, this letter does
nothing to advance Mr. Brown's argument that Arch and Osmose acted in concert to hide the
dangers of arsenic in splinters from CCA-treated wood. Plaintiff does not assert that Osmose
had any involvement in the representations made by Mr. Butala. Nor does Plaintiff argue
Arch and Osmose had an agreement on how to respond to such inquiries. Instead, Plaintiff
argues that Arch's and Osmose's "half-truth" that "handling can cause splinters" was
exacerbated by Arch's strategy in responding to complaints of splinter injuries. Mr. Brown's
also has a history of getting a splinter from CCA-treated wood five years earlier. [Docket No. 170-1]. Mr.
Butala explains in his letter that "all indications to date from both human experience and controlled
laboratory studies show without exception wood properly treated with CCA-C does not produce effects that
can be produced by the pesticide used to treat the wood." Mr. Butala explains a critical feature ofCCAtrcated woo.d is fixation and that an important feature of fixation is that once the "preservative metals are
effectively bound in wood fiber they are not available for biological absorption by the user of the wood no
matter how intimate [the] contact with treated wood may be." [Id. at pg. 1-2]. He also states that as they
discussed, he considered a hypothetical arsenic dose delivered in a wood splinter assuming a total failure of
fixation, and determined the exposure would be equivalent to a normal daily dietary intake of arsenic.
reference to this letter simply does not advance his theory that Arch and Osmose acted in
Mr. Brown has not demonstrated that Arch and Osmose
acted in concert in their communications to the EPA in 1977
of there being no reports of adverse effects having been
caused by the arsenic in CCA-treated wood.
Without specific discussion of concert of action, Mr. Brown argues that Arch and
Osmose were both involved in a 1977 filing with the EPA that stated there had been no
reports of adverse effects from the arsenic used in wood preservatives when, in fact, reports
of adverse effects had been made. [Docket No. 168, pgs. 24-25]. Mr. Brown specifically
references a 1977 memorandum filed with the EPA by the Environmental Programs Task
Group, Subcommittee No. I of A WPI (the "Committee"). 20 The memorandum identifies the
members of the Committee and indicates that both Arch's predecessor, Koppers Company,
and Osmose had at least one representative on the Committee at the time of the 1977 filing.
[Docket No. 168-24, pg. 7 (Koppers Company had two representatives: Mr. Robert Arsenault
and Mr. Gerald Daugherty; Osmose had one representative: Mr. George Fahlstrom)]. In the
memorandum, the Committee stated that "[i]norganic pentavalent arsenical compounds of
varying formulation have been used as wood preservatives in substantial quantities for more
than 35 years with no reports of adverse effects." [Docket No. 168-24, pg. 9].
The memorandum states it "is responsive to the EPA's request for environmental information
relevant to the reregistration of arsenical wood preservatives." [Docket No. 168-24, pg. 8].
Mr. Brown argues there is evidence to refute the representations made to the EPA in
the Committee's memorandum. He appears to be arguing that both Koppers Company and
Osmose were aware at the time the memorandum was filed with the EPA that reports of
adverse effects from exposure to CCA-treated wood had, in fact, been made. Specifically,
Mr. Brown points to a July 25, 1977, "memo to file" from Robert Arsenault, a former
employee of Koppers Company who was on the Committee in 1977. [Docket No. 168-25].
Mr. Arsenault's "memo to file" outlines three incidents of CCA dust toxicity that had been
reported to him involving workers who were exposed to CCA dust through sawing, sanding
or planing the material. [Docket No. 168-25]. Mr. Brown emphasizes that this "memo to
the file" predates the August 1977 memorandum from the Committee filed with the EPA.
He does not, however, point to any evidence that suggests Mr. Arsenault informed the
Committee, his employer, or someone at Osmose of this information.
Mr. Brown also points to a December 7, 1989, Indiana Supreme Court decision as
support for his position that there is evidence refuting the Committee's 1977 representation
to the EPA of no reports of adverse effects from the arsenic in CCA-treated wood. [Docket
No. 168, pg. 25 (quoting Sipes v. Osmose Wood Preserving Co. ofAm., 546 N.E.2d 1223,
1225 (Ind. 1989)]. In Sipes, the Indiana Supreme Court reversed the trial court's grant of
"judgment on the evidence" to Osmose on the issue of punitive damages, not concert of
action, finding the plaintiff had presented sufficient evidence to go to the jmy on the issue.
Sipes, 546 N.E.2d at 1225. While the Court in Sipes discussed several pieces of evidence
presented in that case on the issue of punitive damages against Osmose, Mr. Brown focuses
on the Indiana Supreme Court's discussion of two instances involving injury to people
working with CCA-treated wood that he asserts were known to Gerald Daugherty, a former
employee of both Koppers Company and Osmose. [Docket No. 168, at 25].
Mr. Brown does not provide any argument, however, as to how Mr. Daugherty's
knowledge of these two incidents furthers a concert of action the01y in this case. Assuming
Mr. Brown is pointing to the Sipes decision for the purpose of demonstrating that Osmose
also had knowledge of at least one of the incidents described in Mr. Arsenault's "memo to
file" at the time the Committee filed its 1977 memorandum with the EPA, Plaintiff does not
cite to where the evidence presented in Sipes is contained in the record here.
Further, to the extent Mr. Brown may be arguing that because former Osmose
employee Gerald Daugherty had knowledge of at least one of the incidents described in the
Arsenault "memo to file," it can be inferred that Koppers Company and Osmose acted in
concert by way of their involvement in the Committee's 1977 memorandum filing, this
argument fails. Plaintiff's own briefing states Mr. Daugherty worked for Koppers Company,
not Osmose, at the time of the 1977 filing. [Docket No. 168, pg. 25 ("Gerald Daughtery [sic]
 formerly worked for Koppers Co. and in 1981 was employed by Osmose")]. In addition,
the Committee's 1977 memorandum identifies Mr. Arsenault and Mr. Daugherty as being
representatives of Koppers Company, not Osmose. [Docket No. 168-24, pg. 7].
Thus, what Mr. Daugherty knew in 1977 about reports of adverse effects of CCAtreated wood does not demonstrate Osmose had any knowledge in 1977 of those reports, and
Plaintiff has not pointed to any other evidence in this case that demonstrates Osmose or the
Committee had such knowledge at the time of the Committee's 1977 EPA filing.
Accordingly, the Court rejects any argument that the 1977 memorandum of the Committee
evidences that Arch and Osmose, through their representatives on the Committee, acted in
concert to conceal the hazard of arsenic in CCA-treated wood.
Plaintiff has not pointed to evidence that demonstrates Arch,
Osmose and CSI acted in concert to conceal the hazards of arsenic
in CCA-treated wood by their involvement in an administrative
challenge to an EPA proposal requiring warning labels on
Without specific argument as to how it supports his concert of action theory, Mr.
Brown points out that Arch, Osmose and CSI were all petitioners in an administrative
proceeding before the EPA. In that proceeding, they objected to the EPA's proposal to
require warning labels on CCA-treated wood under the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA). According to Brown, they did so despite knowing that warning
labels were necessary to protect users from injury. 21 [Docket No. 168, pg. 23 (citing In re
Chapman Chemical Co., FIFRA Docket No. 529 ( 1985)) and 168-21 ]. Mr. Brown explains
the petitioners in the administrative proceeding successfully challenged the EPA's authority
Plaintiff appears to con lend these Defendants knew warning labels were needed to protect users
because two lawsuits had already been filed alleging such al the time the administrative decision was entered.
[Docket No. 168, pg. 23].
under FIFRA to require labels on CCA-treated wood. Mr. Brown contends the only
reasonable inference from these Defendants' opposition to the EPA's proposal is that they
knew the EPA's recmrunendation requiring warning labels on CCA-treated wood would "end
the marketing" of their products. [Id.]. But to the extent Plaintiff is arguing that the
involvement of these Defendant's in the administrative challenge is evidence they acted in
concert to commit a tortious act, Brown has not pointed to any evidence that would
reasonably lead to such an inference.
In Stevens, this Court rejected a similar argument and held the administrative case did
not support a concert of action theory against the chemical manufacturers. Their mere
involvement in the challenge did not indicate they had formed an agreement or acted in
concert to prevent warning labels from being placed on the poles. Stevens, 2016 WL
Instead, the Court found the EPA administrative decision, at most,
suggested the chemical-manufacturing defendants were involved in parallel activity to legally
challenge the EPA 's authority to regulate labeling of treated wood as part of its registration
process. Mr. Brown has not argued that the reasoning in Stevens on this issue is incorrect
and has not attempted to distinguish his argument from that presented in Stevens. The
Court's reasoning in Stevens applies equally to the case at bar. 22
The only nuance in Mr. Brown's argument here that was not presented in Stevens is that he
provided a "list of addressees" who received a copy of the administrative decision upon its issuance. The
list includes, as well as dozens of others, persons identified as counsel for the chemical-manufacturing
Defendants. In Stevens, plaintiff did not present evidence demonstrating that Arch and Osmose had any role
in the administrative challenge.
As this Court explained in Stevens, it found another case from this district instructive.
Stevens, 2016 WL 5660362, at *11 (citing Smith, 2013 WL 1136624, at *1). In Smith, the
court dismissed a concert of action claim where plaintiffs alleged only that the defendants
engaged in parallel activity to conceal the dangers of a chemical used in their products. The
plaintiffs did not allege facts suggesting an agreement or common design between the
defendants or demonstrating the defendants provided substantial assistance to others to
commit a tortious act. See Smith, 2013 WL 1136624, at * 1. 23
This Court also found in Stevens that another case was persuasive on the issue.
Stevens, 2016 WL 5660362, at 11 (citing Rastelli v. Goodyear Tire & Rubber Co., 591
N.E.2d 222, 223-25 (N.Y. 1992)). In Rastelli, the appellate court held the trial court erred
in not granting summary judgment to a manufacturer on concert of action based on parallel
activities of defendants and other manufacturers directed to a government agency as well as
lobbying efforts. Rastelli v. Goodyear Tire & Rubber Co., 591N.E.2d222, 223-25 (N.Y.
1992) (citing Restatement (Second) of Torts § 876). There, a manufacturer of a multipiece
tire rim that separated, explosively killing plaintiffs decedent, was held not subject to
concerted action liability based on the defendant's and other manufacturers' lobbying efforts.
Specifically, the plaintiff had alleged and submitted evidence that the rim manufacturers had:
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 about the health risks" of the chemicals. Id. at* 1.
campaigned through their trade association for OSHA to make employers rather than
manufacturers responsible for safe !luck maintenance; decided not to issue warnings;
successfully lobbied against a ban on production of multipiece rims; and declined to
voluntarily recall the rims at issue. Id. The court found these activities were insufficient to
support the plaintiffs claim of concert of action because plaintiffs evidence demonstrated
only parallel activity by the rim manufacturers; 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, Mr. Brown's citation to the administrative decision challenging the
EPA's authority to require labeling on CCA-treated wood as a requirement for registration
of the preservatives at issue under FIFRA does not evidence the chemical-manufacturing
Defendants acted by agreement or common design. Further, even if these Defendants had
pursued the administrative proceeding pursuant to an agreement or common design, the EPA
administrative decision demonstrates a successful effort to legally challenge the EPA's
exercise of unauthorized authority, which is not tortious activity. See c.f Senart v. Mobay
Chemical Co1p., 597 F. Supp. 502 (D. Minn. 1998) (defendants' conduct in working to
persuade OSHA to reject a proposal for more stringent exposure standards was not t01iious,
but "sought only permissible ends and acted only through permissible means," and was
"clearly permissible" under the First Amendment right to petition). Thus, Mr. Brown's
citation to the administrative decision does not further his concert of action theo1y against
the chemical-manufacturing Defendants.
Plaintiff has not presented evidence demonstrating "all
Defendants" acted in concert to conceal the dangers of arsenic in
Mr. Brown makes several conclus01y statements that "all Defendants" knew and
concealed the nature and extent of the hazards caused by exposure to the arsenic in the CCAc
treated wood by, among other things, failing to affix warning labels to the utility poles.
[Docket No. 168, pgs. 2-3, 7-9, 22]. Mr. Brown has failed, however, to support his argument
with evidence demonstrating Defendants acted by agreement or common design.
Accordingly, as explained more thoroughly below, Mr. Brown has failed to demonstrate a
concert of action theory against "all Defendants."
First, Mr. Brown argues that despite "arsenic-treated wood" being a more accurate and
descriptive term for CCA-treated wood, the Defendants identified their products using terms
that concealed the existence of arsenic in the products:
Wolmanized® wood (Arch),
GreenWoodTM (CSI) and Osmose brand pressure treated wood (Osmose). [Docket No. 168,
pgs. 2, 6]. He also states that both Arch and Osmose used the term "salt-treated wood" to
describe CCA-treated wood, which he contends is an "unprecedented misnomer in deceptive
marketing," as the wood does not contain table salt, but a salt form of arsenic. [Id.].
However, even assuming all of the Defendants marketed their CCA-treated wood under
names that did not identify arsenic as an ingredient of the CCA, Mr. Brown has not pointed
to evidence that demonstrates or supports a reasonable inference the Defendants did so
because of an agreement or common design, let alone that such an agreement was for the
purpose of concealing the dangers of arsenic. See Dawson, 1988 WL 123929, at *2 (granting
summmy judgment where plaintiffs did not "show the court any memorandum, any letter,
any shred of an agreement that would imply the defendants cooperated or acted in concert.").
Thus, this argument does not further his concert of action the01y against all Defendants.
In addition, Mr. Brown references three documents he contends evidence the
Defendants' "[s]tate of [m]ind" and that "[t]hey had a [d]uty to [c]ommunicate the [h ]ealth
[h]azards of [e]xposure to [i]norganic [a]rsenic."24 [Docket No. 168, pgs. 18-19]. While not
clear if Mr. Brown intends for these documents to be considered as evidence in support of
his contention that the Defendants acted tortiously pursuant to an agreement or common
design, they do not provide such support. Specifically, these documents do not evidence an
agreement or common scheme among the Defendants.
Mr. Brown also argues the Defendants acted in concert to conceal the hazards of the
arsenic in the CCA-treated wood by not referencing in their respective MSDS certain
Mr. Brown references an Amendment of Notice ofintent to Cancel Registrations, published in the
Federal Register, wherein the EPA reports on its investigation of wood preservatives, including those using
inorganic arsenicals. [Docket No. 168, pgs. 18-19 (citing Creosote, Pentachlorophcnol, and Inorganic
Arsencials; Amendment ofNotice oflntent to Cancel Registrations ("Amended Notice"), 51 Fed. Reg. 1334348 (Jan. 10, 1986)]. He also quotes from the Consumer Information Sheet (CIS) appended to the EPA's
1986 Amended Notice, which CIS warns that inorganic arsenic is in the treated wood and exposure may
present certain hazards. He further points to a June 29, 2001, letter from the EPA to the president of A WP!
that contains suggested changes to the CIS to include an additional warning that "some chemical may migrate
from treated wood into surrounding soil over time and may also be dislodged from the wood surface upon
contact with skin." [Docket No. 168-14, pgs. 6-9].
publications reporting adverse effects from exposure to CCA-treated wood and by failing to
warn that burning CCA-treated wood converts the pentavalent arsenic to the more toxic
trivalent arsenic. [Docket No. 168, pgs. 19-23]. Mr. Brown contends that because none of
the Defendants provided this information/warning the "concert of action by all Defendants
is self-evident." [Id. at pgs. 22, 23]. The Court disagrees. "[P]laintiffl] must show that the
defendants acted by cooperative or concerted activities. Allegations of parallel activity or
independent adherence to industry-wide standards will not meet this requirement." See
Dawson, 1988 WL 123929, at **2-3 (granting summary judgment, finding plaintiff failed
to present any evidence that would imply the defendants cooperated or acted in concert).
Simply because none of the Defendants provided this information/warning to the end users
does not in and of itself evidence concerted action. Id. Plaintiff has not pointed to any
evidence that suggests the Defendants acted pursuant to an agreement or common scheme
to exclude this information from their MSDS or other literature. He simply surmises that
since none of them included the information/warning in their MSDS they must have acted
in concert. Again, at most, this would suggest parallel activity, which is insufficient to
establish concert of action. See Smith, 2013 WL 1136624, at *5 (citing Dawson, 658 F.
Supp. at 1040).
Plaintiffs reliance on Sipes, 546 N.E.2d at 1225, does not further his argument that
all Defendants acted in concert. Sipes involved the issue of whether under Indiana's rules
of trial procedure the trial court properly granted a "motion for judgment on the evidence"
and dismissed plaintiffs punitive damages claim against Osmose. Sipes did not involve a
finding that Osmose acted in concert with other chemical-manufacturers or wood-treaters.
The court in Sipes found the evidence was sufficient to present a jmy question on whether,
under Indiana law, the necessary elements for an award of punitive damages against Osmose
had been shown. This conclusion by the Sipes court, based upon the circumstances presented
there, does nothing to further an argument here that such evidence is sufficient to present a
jury question on the issue of concert of action.
Lastly, Mr. Brown refers the Court to a 1981 Response of AWPI to the EPA's
proposal under the Toxic Substances Control Act to require warnings with respect to the use
of treated wood products. [Docket No. 168, pgs. 25-26 and 168-27]. While not clear, Mr.
Brown appears to contend that A WPI knowingly made a false statement in this Response
when it stated "there is no evidence of any significant adverse effects from burning treated
[Docket No. 168-27, pgs. 11-12].
He further contends this statement was
"amplified" by other statements indicating the problem the EPA was seeking to address was
merely esthetic and not a health issue. 25 Mr. Brown contends that a reasonable inference
from these statements establishes that "Defendants knew and concealed the fact that burning
He argues A WP! "amplified" this statement by also stating in its submission that "[b]ecause of the
smoke and smell it only rarely would be used as firewood. The problem aimed at by the EPA's warning on
burning is anesthetic rather than a health issue." [Docket No. 168, pg. 26 (quoting Docket No. 168-27, pg.
13)]. He contends A WPI's position that burning CCA-wood is anesthetic problem because it smells bad is
"outside the boundary of acceptable conduct." Id.
[CCA-]treated wood converts the pentavalent arsenic to trivalent arsenic, which is more
hazardous than pentavalent arsenic." [Id.].
However, even assuming A WPI had knowledge of adverse effects from burning CCAtreated wood at the time it made its 1981 submission to the EPA, Plaintiff has not identified
evidence of an agreement among the Defendants to conceal the health effects from burning
CCA-treated wood. The fact that the Defendants may have all belonged to the same trade
association is not sufficient to support a concert of action claim. Instead, the Plaintiff must
point to evidence from which it can reasonably be inferred that the Defendants acted by
agreement to commit a tortious act. See Eastridge, 2014 WL 4916236, at *4. Other than
inferring Defendants were members of AWPI at the time of the 1981 Response, Mr. Brown
has not pointed to any evidence that any of the Defendants participated in developing or were
otherwise involved inAWP I's Response to the EPA proposal. Mere membership in the same
trade group does not demonstrate concert of action. Id.; Rastelli, 591N.E.2d224-25 (finding
allegations and exhibits demonstrating that trade association campaigned for OSHA to place
responsibility for safety precautions on maintenance employers and not the manufacturers
was not sufficient to raise issue of fact as to whether rim manufacturers were parties to an
agreement or common scheme to commit a tort). Accordingly, Plaintiff's reference to
AWPI's Response to an EPA proposal regarding warnings for treated wood products does
not further a concert of action theory against the Defendants.
Mr. Brown does not point to any other evidence that he contends demonstrates a
concert of action the01y against "all Defendants." Because none of the evidence he points
to demonstrates the Defendants acted cooperatively or in concert to carry out a tortious act
or provided substantial assistance to others to accomplish a tortious act, he cannot proceed
under a concert of action theory. 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").
Mr. Brown has not presented any evidence to support a reasonable inference that he
was exposed to any of the Defendants' products specifically. In addition, his effort to
demonstrate a concert of action theory against the Defendants fails because he has not
pointed to any evidence that demonstrates the Defendants, in any combination, acted in
concert or pursuant to a common design to cany out a tortious act or that they provided
substantial assistance to others to accomplish a tortious act as is necessary to maintain such
For these same reasons, Mr. Brown cannot prevail on his summary judgment motions.
Mr. Brown sought summary judgment on two issues: that he suffered cacosmia as a result
of his exposure to the arsenic in the CCA-treated utility poles on which he worked; and that
Arch and Osmose failed to warn of the hazards caused by splinters from wood treated with
the chemical. [Docket Nos. 154 and 157]. Unable to demonstrate that he was exposed to any
of the Defendants' specific products or that he has a viable concert of action theory, Mr.
Brown cannot prove any of the Defendants' products caused his cacosmia or that he was
harmed by any deficiency in Arch's and/or Osmose's warnings regarding splinters, which is
required to prevail on these Motions. Accordingly,
IT IS ORDERED that:
Defendants' Motion for Summary Judgment on Product Identification [Docket
No. 159] is SUSTAINED;
Plaintiff having failed to demonstrate a prima facie element of his case
sufficient to survive summary judgment, all other pending Motions [Docket Nos. 154, 157,
160, 161, 162, 163, 164, 165, 189] are OVERRULED AS MOOT; and
Judgment is entered in Defendants' favor and this matter is stricken from the
active docket of the Court.
thi~ft'y of September, 2017.
C:\Users\Bcnu Rellan\AppData\Local\Te1np\notes24EO 14\13-61-HR \V M003.final.\vpd
Henry R. Wilhoit. Jr.
Unlted States Dl•trlot Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?