Holland, et al v. Union Carbide Corp, et al
MEMORANDUM OPINION & ORDER denying  Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 4/23/2013. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:02-CV-00006
CAROL HOLLAND, et al.
UNION CARBIDE CORPORATION, et al.
MEMORANDUM OPINION AND ORDER
This matter is before the court upon Defendant Union Carbide Corporation’s
Motion for Summary Judgment. 1 (Docket No. 26-1.)
For the reasons that follow,
Defendant’s Motion will be DENIED.
Plaintiff Carol Holland, as Executrix of the Estate of Verdie R. Culp and Frances
E. Culp, brings this action against various defendants, alleging that Plaintiff’s decedent,
Verdie Culp, developed asbestos-related disease as a result of exposure to asbestoscontaining products while working at the Paducah gaseous diffusion plant. According to
Plaintiff, Mr. Culp, who died of mesothelioma in 2001, worked at the gaseous diffusion
plant at various times during and throughout the 1950s and 1960s. Plaintiff brings claims
on theories of strict products liability, negligence, and misrepresentation, alleging that
Union Carbide Corporation originally filed this Motion, which it incorporated in its motion in
opposition to remand, in the United States District Court for the Eastern District of Pennsylvania on
September 13, 2011, in the multidistrict litigation matter styled In re: Asbestos Products Liability Litigation
(No. VI), MDL Docket No. MDL 875, Case No. 2:09-CV-80013-ER.
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UCC knew of the hazards of asbestos yet failed to warn the federal government of those
hazards at the Paducah gaseous diffusion plant.
Plaintiff filed her initial complaint in this matter on January 10, 2002. Later that
year, this matter was transferred to the United States District Court for the Eastern
District of Pennsylvania as part of the multidistrict litigation (MDL) matter styled In re:
Asbestos Products Liability Litigation (No. VI), MDL No. 875. (See Docket No. 10.)
The MDL Panel remanded the above-styled action back to this Court by order of
December 19, 2011. (Docket No. 15.) Defendant Union Carbide Company (UCC)
subsequently moved to vacate the MDL Panel’s order of remand, which the Panel denied
by order of February 13, 2011. (Docket No. 26-8.) At the time of remand, UCC’s instant
Motion for Summary Judgment was still pending. 2
In its Motion for Summary Judgment, UCC cites to the “Declaration of Charles
Turok” in support of its principal defense to Plaintiff’s claims. (See Docket No. 26-1, at
10, 224-25.) That Declaration, dated November 14, 2002, was originally submitted as an
exhibit in another matter before this Court, Dexter v. Triangle Insulation & Sheet Metal,
Inc., No. 5:02CV-263-J. (See Docket No. 26-1, at 224.) Plaintiff filed a motion to strike
Turok’s Declaration in this Court on November 12, 2012. (Docket No. 28.) In that
In its February 13, 2011, order, the Panel acknowledged that the instant Motion remained pending,
Union Carbide, however, filed th[is] motion not only after the transferee
court’s issuance of the suggestion of remand, but also months after the deadline for
filing dispositive motions had passed . . . . Although Union Carbide argues that its
counsel and counsel for the . . . Holland plaintiffs informally stipulated to an
extension of that deadline, there is no indication that the transferee court was
informed of the stipulation, much less approved it.
(Docket No. 26-8, at 2.)
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motion, Plaintiff argued that Turok’s Declaration should be stricken for several reasons,
among which that Plaintiff had no opportunity to depose Turok and determine the
veracity of his declarations. (See Docket No. 28.) Plaintiff thereafter filed her response
to UCC’s Motion for Summary Judgment in this Court on November 15, 2012. (Docket
No. 29.) UCC filed a combined reply to Plaintiff’s response to its Motion for Summary
Judgment and response to Plaintiff’s motion to strike Turok’s Declaration. (Docket No.
30.) Despite captioning that filing as a “Reply to Plaintiffs’ Response to Its Motion for
Summary Judgment,” UCC did not address therein the merits of its Motion for Summary
Judgment. (See Docket No. 30.) UCC did, however, state that it had contacted Turok
and that Turok would be available to be deposed on certain dates in December 2012 and
throughout January 2013. (Docket No. 30, at 2.)
In an order entered December 12, 2012, the Court denied Plaintiff’s motion to
strike Turok’s Declaration and granted Plaintiff leave to depose Turok through the end of
January 2013. (Docket No. 31, at 2.) The Court also granted Plaintiff leave to file a
supplemental response to UCC’s Motion for Summary Judgment “no later than 14 days
after Mr. Turok’s deposition is completed,” and granted UCC leave to file a supplemental
reply “no later than 14 days after Plaintiffs’ supplemental response is filed.” (Docket No.
31, at 2.) On December 14, 2012, Plaintiff filed a notice to take Turok’s deposition on
January 18, 2013, (Docket No. 32), and Turok was deposed as scheduled, (See Docket
No. 34-1, at 1). The Court thereafter held a telephonic conference on January 25, 2013,
during which counsel for both parties was present, and by order of January 28, 2013,
ordered that Plaintiff’s supplemental response “be filed by February 8, 2013” and
UCC’s supplemental reply “by February 22, 2013.” (Docket No. 33 (emphasis in
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original).) The Court further instructed that “Counsel filing the last pleading shall notify
the Court by letter, with a copy to the opposing counsel, when the matter is ripe for a
decision.” (Docket No. 33, at 1.) Plaintiff filed her supplemental response on February
26, 2013. (Docket No. 34.) Despite that this filing was some two-and-a-half weeks after
the Court’s deadline, UCC has not contested its timeliness. Furthermore, UCC has not
filed a supplemental reply since Turok’s deposition was taken.
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine issue
of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
The test is whether the party bearing the burden of proof has presented a jury question as
to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The
plaintiff must present more than a mere scintilla of evidence in support of her position;
she must present evidence on which the trier of fact could reasonably find for her. Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will
not suffice to defeat a motion for summary judgment: “[T]he mere existence of a
colorable factual dispute will not defeat a properly supported motion for summary
judgment. A genuine dispute between the parties on an issue of material fact must exist to
render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., Inc., 681 F.3d 312 (6th Cir. 2012).
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In determining whether summary judgment is appropriate, a court must resolve all
ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a] party
asserting that a fact cannot be or is genuinely disputed must support the assertion by . . .
citing to particular parts of materials in the record . . . or showing that the materials cited
do not establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
“The court need consider only the cited materials, but it may consider other materials in
the record.” Fed. R. Civ. P. 56(c)(3).
Finally, while the substantive law of Kentucky is applicable here pursuant to Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity applies the
standards of Fed. R. Civ. P. 56, not “Kentucky’s summary judgment standard as
expressed in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W2d 476 (Ky. 1991).”
Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir. 1993), abrogated on other grounds
by Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010).
UCC’s instant Motion seeks summary judgment on the ground that Plaintiff’s
claims against it are barred by the “military contractor defense.” (See Docket No. 26-1.)
Plaintiff argues that UCC is not entitled to immunity under that defense because (1) there
is no evidence the federal government specified the use of asbestos-containing products;
(2) those products were not “military equipment,” but instead were developed for use in
the private sector; (3) UCC has offered not proof that it warned the federal government of
the hazards associated with those products; and (4) Kentucky tort law under which UCC
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may be held liable does not create a “significant conflict” with any federal interest and,
thus, should not be displaced. (Docket No. 29, at 2, 8.)
The United States Supreme Court addressed the “military contractor defense,”
also called the “government contractor defense,” in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988). This defense is implicated in situations where a plaintiff seeks to
hold liable under state tort law a contractor providing military equipment to the federal
government. See id. at 502. In Boyle, the Supreme Court held:
Liability for design defects in military equipment cannot be
imposed, pursuant to state law, when (1) the United States
approved reasonable precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier warned the
United States about the dangers in the use of the equipment that
were known to the supplier but not to the United States.
Id. at 512. The Court reasoned that the basis for this defense lies in the “discretionary
function” exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), which protects
the United States from liability for its agents’ performance of duties involving
discretionary functions. See id. at 511-13. The military contractor defense has since been
universally accepted and applied by United States courts, including courts in this Circuit.
See In re Aircraft Crash Litig., 752 F. Supp. 1326, 1336 (S.D. Ohio 1990), aff’d 935 F.2d
269 (6th Cir. 1991). A defendant asserting this defense has the burden of proving its
applicability. Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp. 959, 966 (W.D.
Ky. 1993) (citing Bailey v. McDonnell Douglas Corp., 989 F.2d 794 (5th Cir. 1993)).
UCC argues that it is entitled to the military contractor defense because the
Paducah gaseous diffusion plant was constructed at the direction of the Atomic Energy
Commission (AEC) for the purpose of producing weapons-grade uranium for the United
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UCC has presented evidence that the AEC, and its successor, the
Department of Energy (DOE), exercised oversight and control over UCC’s operation of
the plant. UCC insists that it merely received direction from the federal government and
that it was required to follow the guidelines developed by the AEC/DOE. This argument,
however, does not establish the applicability of the military contractor defense to shield
UCC from liability.
In Lamb v. Martin Marietta Energy Systems, Inc., this Court
addressed and rejected an analogous argument:
This argument is deficient for two reasons. First, assuming that the
DOE personnel gave its approval for every activity at the plant,
such approval does not necessarily constitute a discretionary
function. “[C]onduct cannot be discretionary unless it involves an
element of judgment or choice. . . . Moreover, assuming that the
challenged conduct involves an element of judgment, a court must
determine whether that judgment is of a kind that the discretionary
function exception was designed to shield.” Berkovitz v. United
States, 486 U.S. 531, 536–37 (1988).
The second flaw in the defendants’ argument is that even if the
DOE had approved of all activities that were to take place at the
plant, the defendants have failed to show that contractor personnel
faithfully adhered to all DOE’s orders.
835 F. Supp. at 966-67 (citations omitted).
Similarly, in Dexter v. Triangle Insulation & Sheetmetal Co., this Court held, in
the context of a motion to remand, that UCC had not presented a colorable claim to a
defense under federal law. Order, No. 5:09CV-263-R (W.D. Ky. June 5, 2003) (Russell,
J.). 3 The Dexter plaintiff likewise sued UCC for alleged asbestos exposure at the
This Order is attached as an exhibit to Plaintiff’s response to UCC’s Motion for Summary Judgment.
(See Docket No. 29-12.)
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Paducah gaseous diffusion plant during the 1950s. UCC removed pursuant to 28 U.S.C.
§ 1442, asserting that it was entitled to federal agent removal because its actions were
directed by the federal government. In support of its notice of removal, UCC attached
the Declaration of Charles Turok—the same Declaration it attaches to its instant Motion
and that was the subject of Plaintiff’s previously discussed motion to strike. In Dexter,
UCC also pointed to the 1983 Supplemental Agreement, which it likewise attaches to its
instant Motion. This Court rejected UCC’s position in Dexter:
Mr. Turok’s declaration and the articles from a 1983 contract fail to
provide enough support for this Court to conclude that the federal
government had direct control over the Defendants’ actions during
the time period when the Plaintiffs’ injuries allegedly occurred.
The contract, as the Plaintiffs note, speaks only to the situation
after 1983, not in the early 1950s. While it would seem to provide
evidence of direct federal control after 1983, it does not meet the
burden of proof required. Mr. Turok’s declaration does not recount
the sort of detail necessary for this Court to determine whether the
control in question was “pursuant to an officer’s direct orders or to
comprehensive and detailed regulations.” As Judge Weinstein
noted [in Ryan v. Dow Chem. Co., 781 F. Supp. 934, 947 (E.D.N.Y.
1992)], “a person or corporation establishing only that the relevant
acts occurred under the general auspices of a federal office or
officer [does not present a colorable claim to a defense under
No. 5:02CV-263-R, at 1-3.
In effect, UCC now presents the same evidence in support of its Motion for
Summary Judgment that it presented 20 years ago in opposition to remand. And although
having since deposed Turok, UCC did not file a supplemental reply in support of its
instant Motion. The Court in 1993 found this exact evidence insufficient to defeat
remand. Accordingly, today, this evidence is all the more insufficient to establish that
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UCC is entitled to immunity under the military contractor defense and, thus, is
insufficient to warrant judgment as a matter of law.
Furthermore, even if UCC had or could establish the first two prongs of Boyle, it
makes no argument why Boyle’s third prong is met. Plaintiff argues that “the record is
devoid of any evidence UCC provided any warning to the federal government concerning
the hazards of asbestos.” (Docket No. 29, at 12.) UCC does not contest this point in its
reply, (see Docket No. 30), nor did UCC bother to file a supplemental reply after Turok
was deposed. Therefore, the Court finds that UCC has failed to show that the military
contractor defense is applicable here. As such, UCC has not demonstrated that summary
judgment is warranted on the ground that Plaintiff’s claim is barred by that defense.
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant Union
Carbide Corporation’s Motion for Summary Judgment, (Docket No. 26-1), is DENIED.
April 23, 2013
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