Moore, Jr. et al v. Alcatel-Lucent USA, Inc. et al

Filing 177

MEMORANDUM OF DECISION AND ORDER granting #162 Alcatel-Lucent USA, Inc.'s Motion for Summary Judgment, and the Plaintiff's claims against this Defendant are hereby DISMISSED WITH PREJUDICE. Signed by District Judge Martin Reidinger on 9/29/2017. (khm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00157-MR-DLH
HOWARD MILTON MOORE, JR. and
LENA MOORE,

)
)
)
Plaintiffs,
)
)
vs.
)
)
ALCATEL-LUCENT USA, INC., et al., )
)
Defendants.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Alcatel-Lucent USA, Inc.’s
Motion for Summary Judgment [Doc. 162].
I.

PROCEDURAL BACKGROUND
The Plaintiffs Howard Milton Moore, Jr. and Lena Moore filed this

action on June 9, 2016, alleging that Mr. Moore developed mesothelioma as
a result of exposure to asbestos during his work from 1965 to 1995 while
employed as a cable installer by Western Electric and its subsidiary Bell Labs
(collectively, “Western Electric”). [Doc. 1]. The Defendant Alcatel-Lucent
USA, Inc. (“Alcatel-Lucent” or simply “Defendant”) appears in this case as
successor to Western Electric. Alcatel-Lucent now moves for summary
judgment, arguing that the North Carolina Workers’ Compensation Act bars

all of the Plaintiffs’ claims. [Doc. 163]. The Plaintiffs oppose Alcatel-Lucent’s
motion, arguing that they have presented a question of fact as to whether
their claims are excepted from the exclusivity bar pursuant to Woodson v.
Rowland, 329 N.C. 330, 344, 407 S.E.2d 222, 230 (1991). [Doc. 168].
Having been fully briefed, this matter is now ripe for disposition.
II.

STANDARD OF REVIEW
Summary judgment is proper “if 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). A fact is “material” if it “might
affect the outcome of the case.” News and Observer Pub. Co. v. RaleighDurham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine dispute”
exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
A party asserting that a fact cannot be genuinely disputed must support
its assertion with citations to the record.

Fed. R. Civ. P. 56(c)(1).

“Regardless of whether he may ultimately be responsible for proof and
persuasion, the party seeking summary judgment bears an initial burden of
demonstrating the absence of a genuine issue of material fact.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If
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this showing is made, the burden then shifts to the non-moving party who
must convince the court that a triable issue exists. Id. Finally, in considering
a party’s summary judgment motion, the Court must view the pleadings and
materials presented in the light most favorable to the non-moving party, and
must draw all reasonable inferences in favor of the non-movant as well.
Adams. v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 556 (4th
Cir. 2011).
III.

DISCUSSION
Section 97-9 of the North Carolina Workers’ Compensation Act (the

“Act”) provides that employers subject to the Act “shall only be liable to any
employee for personal injury or death by accident to the extent and manner”
specified in the Act. N.C. Gen. Stat. § 97-9. Section 97–10.1 provides that
“the rights and remedies herein granted to the employee, his dependents,
next of kin, or personal representative shall exclude all other rights and
remedies of the employee, his dependents, next of kin, or representative as
against the employer at common law or otherwise on account of such injury
or death.” N.C. Gen. Stat. § 97–10.1. These exclusivity provisions “preclude
an employee from seeking potentially larger damages awards in civil
actions.” Southern ex rel. Estate of Southern v. Metromont Materials, LLC,
331 F. Supp. 2d 386, 393-94 (W.D.N.C. 2004). “This exclusion of alternative
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remedies is balanced in the Act by other provisions which provide for an
injured employee’s certain and sure recovery without having to prove
employer negligence or face affirmative defenses.” Id. (citation and internal
quotation marks omitted).
The North Carolina Supreme Court recognized an exception to the
exclusivity provisions of the Act in Woodson v. Rowland, 329 N.C. 330, 407
S.E.2d 222 (1991). In Woodson, an employee was working to dig a trench
to lay sewer lines. 329 N.C. at 334, 407 S.E.2d at 225. The employer knew
that the trench in which the employee was working was unstable and should
have included a trench box for protection. Id. at 335, 407 S.E.2d at 225.
Though a trench box was available on site, the employer made the conscious
decision to direct its employees to dig the trench without using the trench
box. Id. The trench collapsed, killing the employee. Id. at 336, 407 S.E.2d
at 225-26. Following the employee’s death, his wife filed a civil suit against,
among others, her deceased spouse’s employer. Id. at 336, 407 S.E.2d at
226.
Based on the fact that the employer intentionally and expressly
directed the employee to proceed with the work despite direct knowledge
that the decedent was working in an unstable trench without protection, the
North Carolina Supreme Court held as follows:
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[W]hen an employer intentionally engages in
misconduct knowing it is substantially certain to
cause serious injury or death to employees and an
employee is injured or killed by that misconduct, that
employee, or the personal representative of the
estate in case of death, may pursue a civil action
against the employer.
Such misconduct is
tantamount to an intentional tort, and civil actions
based thereon are not barred by the exclusivity
provisions of the Act.
Id. at 340-41, 407 S.E.2d at 228.
As subsequently explained by the North Carolina Supreme Court, the
so-called “Woodson exception” to the exclusivity provisions of the Act is
extremely narrow:
The Woodson exception represents a narrow holding
in a fact-specific case, and its guidelines stand by
themselves. This exception applies only in the most
egregious cases of employer misconduct. Such
circumstances exist where there is uncontroverted
evidence of the employer’s intentional misconduct
and where such misconduct is substantially certain
to lead to the employee’s serious injury or death.
Whitaker v. Town of Scotland Neck, 357 N.C. 552, 557, 597 S.E.2d 665, 668
(2003). The Woodson exception is in fact so narrow that North Carolina
courts routinely have refused to apply the exception since its inception well
over thirty years ago. See, e.g., Shaw v. Goodyear Tire & Rubber Co., 225
N.C. App. 90, 102, 737 S.E.2d 168, 176 (2013) (“[T]his Court is unaware of
a single litigant in any case which has been subject to appellate review who
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has successfully pursued a Woodson claim since the exception to the
exclusivity provisions was set out in 1991.”). For example, the North Carolina
Supreme Court refused to apply the Woodson exception in a case where an
employer knowingly failed to provide adequate safety equipment to its
employees, in violation of OSHA regulations. See Pendergrass v. Card
Care, Inc., 333 N.C. 233, 239-40, 424 S.E.2d 391, 395 (1993). In so doing,
the Court made clear that the Woodson exception requires a plaintiff to show
more than willful, wanton, or reckless conduct. Pendergrass, 333 N.C. at
239-240, 424 S.E.2d at 395. In Whitaker v. Town of Scotland Neck, the
North Carolina Supreme Court held that a showing that the employer knew
that injury or death was possible or even probable was not sufficient to state
a Woodson claim. 357 N.C. at 558, 597 S.E.2d at 669 (“simply having
knowledge of some possibility, or even probability, of injury or death is not
the same as knowledge of a substantial certainty of injury or death”).
Here, the Plaintiffs have presented a forecast of evidence that Western
Electric manufactured and/or supplied numerous asbestos-containing
products that were used by Mr. Moore and other cable installers; that the
installation process required installers to cut into asbestos-containing
products, creating dust which the installers would then breathe; that Western
Electric gave no warnings to its employees regarding the hazards of
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breathing asbestos; that in light of its scope of operations in various
jurisdictions, Western Electric would have been aware of applicable state
and federal laws and regulations pertaining to asbestos; that given its
membership in various professional and industrial organizations, Western
Electric would have learned of the various scientific studies linking asbestos
exposure and mesothelioma; that Western Electric’s own investigation and
testing revealed that installers were subjected to high levels of asbestos
exposure, in excess of applicable OSHA standards; that Western Electric
eventually discontinued the installation of asbestos cable hole covers but did
not warn its employees of the risk involved in working on asbestos cable hole
covers that were already installed; that Western Electric issued instructions
that installers should wear goggles and respirators but did not take adequate
steps to ensure that such safety equipment was actually used; and that after
discontinuing the use of asbestos cable hole covers, Western Electric never
conducted the additional monitoring required by OSHA to determine whether
installers were still being exposed to high levels of asbestos. [See Doc. 168
at 1-22].
The Plaintiffs’ forecast of evidence fails to support an application of the
Woodson exception in this case. At best, the Plaintiffs have presented a
forecast of evidence that Alcatel-Lucent was aware of the potential dangers
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posed by asbestos exposure and yet failed to provide adequate warnings
and safety equipment to Mr. Moore. While the Plaintiffs’ forecast of evidence
may suggest that Alcatel-Lucent knew that such exposure was possibly or
even probably harmful, it is not sufficient to establish that Alcatel-Lucent
intentionally engaged in misconduct knowing it was substantially certain to
cause serious injury or death to Mr. Moore. See, e.g., Whitaker, 357 N.C. at
558, 597 S.E.2d at 669; Pendergrass, 333 N.C. at 239, 424 S.E.2d at 395.
IV.

CONCLUSION
In sum, the Plaintiffs have failed to produce a forecast of evidence that

would support application of the Woodson exception to this case. Therefore,
the exclusivity provisions of the North Carolina Workers’ Compensation Act
bar the Plaintiffs’ claims. Accordingly, the Court will grant Alcatel-Lucent’s
motion for summary judgment.

ORDER
IT IS, THEREFORE, ORDERED that Alcatel-Lucent USA, Inc.’s
Motion for Summary Judgment [Doc. 162] is GRANTED, and the Plaintiffs’
claims against this Defendant are hereby DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.
Signed: September 29, 2017

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