Faulkner v. ABB Inc.

Filing 157

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 4/3/2012. 101 Motion for Summary Judgment as to plaintiff's claim for pain and suffering is DENIED. cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:08-CV-212
NANCY FAULKNER, Individually and as
Administratrix of the Estate of
ROBERT FAVID FAULKNER

PLAINTIFF

v.
ABB INC.

DEFENDANT
MEMORANDUM OPINION & ORDER

This matter is before the Court upon Defendant ABB, Inc.’s motion for summary
judgment as to Plaintiffs’ claim for pain and suffering (DN 101). Plaintiff has responded (DN
103). Defendant has replied (DN 129). This matter is now ripe for adjudication. For the
following reasons, Defendant’s motion is DENIED.
BACKGROUND
Plaintiff, Nancy Faulkner, brought this products liability action against Defendant ABB,
Inc. (“ABB”) after her husband, Robert Faulkner, died in a workplace accident.1 Robert
Faulkner was employed by Arkema, Inc., a chemical plant in Calvert City, Kentucky. On
October 30, 2007, the Arkema facility underwent a plant-wide power shutdown in order to
perform some preventative maintenance. After Robert Faulkner failed to appear for a planned

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Plaintiff originally brought this action in state court against ABB, Inc. ABB subsequently
removed the case to this Court in December 2008 on the basis of diversity jurisdiction. ABB
then received leave of this Court to file a third party complaint against Arkema, Inc. for purposes
of apportionment of fault, contribution, and indemnity. After discovery revealed that contractors
Apex Engineering or Riley Electric may have had some involvement in the installation of the
analyzer shelter, and that either Riley Electric or Morsey Contractors installed the conduit,
Plaintiff filed an amended complaint naming Riley Electric Company, Morsey Contractors, and
Apex Engineering as defendants. In March 2011, this Court dismissed Plaintiff’s claims against
the added defendants for failure to add the defendants within the one-year statute of limitations.
Accordingly, the only remaining parties in this action are Nancy Faulkner and ABB.

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meeting at the end of his shift that day, Plaintiff notified Arkema. Arkema employees searched
the plant grounds and discovered Robert Faulkner unresponsive inside of an analyzer shelter.
Scott Jaco, one of the Arkema employees who first discovered Robert Faulkner, testified that
Faulkner’s skin color was blue and that he was not breathing. Efforts to revive him were
unsuccessful. The investigation determined that Robert Faulkner died of asphyxiation due to
nitrogen gas, which displaced the oxygen in the analyzer shelter during the power shutdown.
The analyzer shelter in question was manufactured by Defendant ABB and purchased by
Arkema in 2001 as part of a plant upgrade project. Arkema ordered various analytical
instruments from ABB which would evaluate gas samples extracted from the smokestack via
sample tubes connected to the instruments. To house these instruments, Arkema also ordered a
prefabricated shelter from ABB.

Once the shelter was delivered to Arkema, outside contractors

completed the connections to the sample lines and utilities, including electricity and instrument
air. Instrument air is air that has been purified and dehumidified for technical applications, such
as purging analytical instruments. There were two cabinets mounted on the exterior wall of the
analyzer shelter. Inside these cabinets were various valves, sample conditioning heaters, and a
small electric pump which propelled gas through the lines. The instrument air constantly flowed
to cool the electric pump. The instrument air system was designed in such a manner that, in the
event of power loss, the instrument air would automatically be replaced by stored nitrogen gas.
During the October 30, 2007 power shutdown, the instrumentation in the analyzer shelter
and the electric pump in the exterior cabinet were shut down; however, the nitrogen gas backup
continued to flow from the instrument air line. Sample tubes passing through the exterior cabinet
entered the analyzer shelter and connected to the analyzing instruments by means of a metal
conduit. Plaintiff contends that, during the power shutdown, nitrogen gas flowed from the

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exterior cabinet and migrated into the shelter through those conduits. The nitrogen then
displaced the oxygen inside the analyzer shelter, creating an oxygen-deficient environment.
In her Complaint, Plaintiff alleged that Robert Faulkner experienced pre-death pain and
suffering, and therefore seeks compensation for such a loss. Dr. Diedre Schluckebier, a former
state medical examiner, testified in her deposition as to the results of the autopsy she performed
on Robert Faulkner on October 31, 2007. Dr. Schluckebier testified that, upon initial
examination, she noticed petechiae, or small, ruptured blood vessels, around Robert Faulkner’s
eyes and forehead. Dr. Schluckebier then explained that petechiae are frequently seen in
asphyxial types of deaths. She then testified that the cause of death was attributed to asphyxia
via suffocation by exposure to vitiated air, which is decreased oxygen content in the air.
Defendant ABB now moves for summary judgment as to Plaintiff’s claim for pain and suffering.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “the movant shows 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). 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).
“[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 his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment: “the 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.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
Finally, while Kentucky state law is applicable to this case pursuant to Erie Railroad v.
Tompkins, 304 U.S. 64 (1938), a federal court in a diversity action 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.W.2d 476 (Ky. 1991).” Gafford v. Gen. Elec. Co., 997 F.2d
150, 165 (6th Cir. 1993).
ANALYSIS
ABB contends that it is entitled to summary judgment as to Plaintiff’s claim for pain and
suffering because there is no evidence that Robert Faulkner experienced any conscious pain or
suffering prior to his death. In response, Plaintiff maintains that Robert Faulkner did endure
physical and mental pain and suffering leading up to his death, evidenced by his ruptured blood
vessels and the confusion, disorientation, and loss of motor skills he experienced prior to being
rendered unconscious.
Under Kentucky law, in a personal injury action, the injured party may recover for any
pain and suffering which is the direct result of the injury. Kentucky Cent. Ins. Co. v. Schneider,
15 S.W.3d 373, 374 (Ky. 2000). To recover for pain and suffering, the plaintiff must have been
sufficiently conscious to have suffered such a loss. Vitale v. Henchley, 24 S.W.3d 651, 659 (Ky.
2000). “Damages for pain and suffering may be awarded, however, ‘if the injured person was

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partly conscious, had intervals of consciousness, or was conscious for a short time before death.”
Id.
Thus, to recover for Robert Faulkner’s pain and suffering, Plaintiff must show that
Robert Faulkner was conscious for some period of time prior to his death. ABB argues that
there is no competent evidence upon which a jury could determine the length of time between
Robert Faulkner’s initial exposure to the oxygen-deficient atmosphere and his loss of
consciousness; thus, ABB contends, any award for pain and suffering could only be based on
speculation. However, ABB does not point to any case law to support such an argument.
Other courts have allowed awards for pain and suffering even though there was no
evidence of the precise amount of time the decedent was conscious before death. In Caldecott v.
Long Island Lighting Co., the decedent was injured in an explosion and ultimately died of
suffocation and burns. 417 F.2d 994 (2d Cir. 1969). Although there was no affirmative evidence
that the decedent survived the explosion by a precise amount of time or of for how long he was
conscious after the explosion, there was evidence that he survived long enough to breathe in soot
from the fire into his lungs. Id. at 996. Although the Second Circuit found that the $50,000
award for pain and suffering was excessive and must be set aside unless a remittitur of $40,000
was filed, it did not find that an award for pain and suffering was unsupported by the evidence.
Id. at 996-97. Likewise, other courts have allowed damages for asphyxiation or suffocation due
to drowning when there is evidence that the decedent was conscious when he or she entered the
water. See e.g., Kline v. Maritrans CP, Inc., 791 F.Supp. 455, 463 (D. Del. 1992) (“Thus, the
Court finds that a jury could reasonably infer that upon entry into the water, for some period of
time, Kline experienced some pain and suffering.”); Freed v. D.R.D. Pool Service, Inc., 974 A.2d
978 (Md. App. 2009).

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Here, Dr. Schluckebier testified that a normal atmosphere contains between 20-20%
oxygen. Referencing notes made during the investigation immediately following the discovery
of Robert Faulkner’s body, Dr. Schluckebier stated that, with the door to the analyzer shelter shut
for four hours, the oxygen level in the air was 11.7%. Twelve hours after Robert Faulkner’s
body was discovered, the oxygen level was at 7%. Dr. Schluckebier testified that, if a person
were to breathe air with an oxygen content of only 11.7%, the person’s judgment and
coordination would become impaired and then the person would lose consciousness and
eventually die. Dr. Schluckebier further testified that if a person were to breathe air with an
oxygen content between 8-10%, the person would lose consciousness. If a person were to
breathe air with an oxygen content of less than 8%, death would usually occur. When asked how
long a person could be exposed to such an oxygen-deficient environment before death would
occur, Dr. Schluckebier stated that in an environment with an oxygen content of 5%, a person
would lose consciousness within approximately 40 seconds and death would occur within
minutes. However, Dr. Schluckebier testified that there was no way of determining the actual
oxygen level within the shelter when Robert Faulkner entered.
Viewing Dr. Schluckebier’s testimony and the evidence in the light most favorable to
Plaintiff, there is a genuine issue as to the following material facts: (1) the oxygen level in the
analyzer building at the time Robert Faulkner entered it, (2) the length of time that passed before
Robert Faulkner lost consciousness, and (3) the pain and suffering experienced by Robert
Faulkner during any period of pre-death consciousness. Regardless of whether or not it is
scientifically possible to determine the exact level of oxygen in the air at the time Robert
Faulkner entered the analyzer shelter, there is evidence that he would have been conscious for at
least several seconds and perhaps even minutes before his death. Dr. Schluckebier’s testimony

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that a person exposed to air with a 5% oxygen content would lose consciousness after 40
seconds, combined with the evidence of the oxygen content of the air inside the analyzer shelter
in the hours after Robert Faulkner’s death, is sufficiently precise for a jury to determine that
Robert Faulkner was conscious at least for a short time prior to his death. Because there is
evidence on which a reasonable jury could conclude that Robert Faulkner consciously
experienced at least some degree of pain and suffering before he died, summary judgment is
inappropriate.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion for
summary judgment as to Plaintiff’s claim for pain and suffering (DN 101) is DENIED.

April 3, 2012

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