ARCHER et al v. MEAD CORPORATION et al

Filing 138

MEMORANDUM AND/OR OPINION RE: MOTION FOR SUMMARY JUDGMENT (DOC. #105). SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/28/2011. 7/29/2011 ENTERED AND COPIES MAILED, E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
:
LIABILITY LITIGATION (No. VI) :
:
:
RICHARD ARCHER
:
:
:
v.
:
:
:
:
MEAD CORPORATION, ET AL.
:
ALFRED MCGUFFIE
v.

MEAD CORPORATION, ET AL.
REBEKKAH RIGGS
v.

MEAD CORPORATION, ET AL.

Consolidated Under
MDL DOCKET NO. 875

Civil Action No. 09-cv-70093
Transferred from the Northern
District of Alabama

:
:
:
:
:
:
:
:

Civil Action No. 09-cv-70095

:
:
:
:
:
:
:
:

Civil Action No. 09-cv-70094

Transferred from the Northern
District of Alabama

Transferred from the Northern
District of Alabama

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

July 28, 2011

Before the Court is Defendant MW Custom Papers, LLC’s
Motion for Summary Judgment in the above-captioned cases, and
1

Plaintiffs’ Response.
I.

BACKGROUND
Plaintiffs in the instant cases have asserted claims

based on alleged exposure to asbestos at the Cement Asbestos
Products Company (“CAPCO”) and National Cement plants in Ragland,
Alabama.

It is undisputed that The Mead Corporation (“Mead”) as

Corporate predecessor to named Defendant MeadWestvaco
Corporation, was a shareholder of the above-mentioned plants from
1963 to 1974.
CAPCO manufactured pipes that were a mix of asbestos,
cement, and silica.

(Permit Appl. for Manufacturing or

Processing, Pl.’s Ex. 10, doc. no. 118-12, at 8.)1

Raw asbestos

was delivered in bags to the facilities, where it was mixed with
cement and silica into a “slurry,” and then rolled in to pipe
form.

(Id.)

About 6,000 tons of asbestos were used per year in

the manufacturing process at CAPCO.

(Id.)

There is testimony on

record that the worksite was consistently very dusty.

(See Dep.

of Ferrell Riggs, Oct. 17, 1997, doc. no. 118-46, pp. 51-52,
testifying that he believes he was exposed to asbestos dust
“everywhere” because he could see the dust everywhere in the
plant.)
Plaintiffs originally filed the instant cases in

1

All citations to the record are from the Archer docket,
09-70093.
2

Alabama state court in 2005, following the diagnoses of various
asbestos-related diseases.

The cases were removed individually

based on federal question jurisdiction pursuant to the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) and transferred to the Eastern District of
Pennsylvania as part of MDL 875 In Re: Asbestos on June 12, 2009.
After discovery was completed, Mead moved for summary judgment in
all three cases on identical legal grounds.

This memorandum

explains the legal principles relevant to all three cases and
applies them to each case.
This Court has supplemental jurisdiction over
Plaintiffs’ non-CERCLA state law claims pursuant to 28 U.S.C. §
1367.

Alabama law applies to the state-law claims at issue.

See

Felder v. Casey, 487 U.S. 131, 151 (“Under Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938), when a federal court exercises
diversity or pendent jurisdiction over state-law claims, ‘the
outcome of the litigation should be substantially the same . . .
as it would be if tried in federal court.’”).
A.

Charles Archer’s Work History
Plaintiff Charles Archer worked as a machinist at CAPCO

from 1964 to 1976 and was then employed at National Cement from
1976 to 2002.

3

B.

Farrell Riggs’s Work History
Plaintiff Farrell Riggs was employed as a laborer and

operator at CAPCO from 1977 to 1982, when it closed.

He was

responsible for cleaning up asbestos, including sweeping the
floors.

C.

Alfred McGuffie’s Work History
Plaintiff Alfred McGuffie was employed at CAPCO from

1968 to 1982, when it closed.
labor foreman.

He was a laborer, clerk, and a

He was responsible for opening bags of asbestos,

unloading them, and cleanup.

D.

Plaintiffs’ Claims Against Mead
Plaintiffs are pursuing claims against Mead under four

separate theories of liability.

First, that Mead voluntarily

undertook a duty to provide a safe work environment at CAPCO and
National Cement, and negligently failed to provide a safe work
environment.
premises.

Second, that Mead negligently inspected the

Third, that a division of Mead sold asbestos-

containing gaskets to CAPCO.

Fourth, that Plaintiffs were

exposed to an asbestos at a dumpsite owned and operated by Mead,
where asbestos waste from CAPCO and National Cement was
deposited.

4

II.

DISCUSSION
As a threshold matter, Mead asserts that Plaintiffs’

claims are time-barred.

Mead additionally asserts that the

doctrine of shareholder immunity under Alabama law protects them
from liability for injuries occurring at the worksites at issue.

A.

Statute of Limitations
Under Alabama law, all claims for pre-1979 exposure to

asbestos must be filed within one year of the last date of
exposure.

For any exposure to asbestos after May 17, 1980, the

claim accrues upon discovery of an asbestos-related disease.
Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979); Johnson v.
Garlock, Inc., 682 So. 2d 25 (Ala. 1996); Henderson v.
MeadWestvaco Corp., 23 So. 3d 625, 629 (Ala. 2009); see also
Corley, 10-61113, doc. no. 86.
Two facts regarding the statute of limitations defense
are undisputed: (1) Plaintiffs have alleged exposure to asbestos
at CAPCO and National Cement after 1979; (2) Mead sold all of its
interest in CAPCO and National Cement in 1974, and there is no
evidence of Mead’s involvement with CAPCO or National Cement
after 1974.
Mead argues that because it ceased all activity at
these worksites in 1974, the pre-1979 “last exposure” rule
applies.

Plaintiffs respond that because they can show post-1979

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exposure to asbestos at these worksites, the discovery rule
applies.

The central question is whether the relevant date for

statute of limitations purposes is the date on which the
defendant’s allegedly tortious activity occurred, or the date on
which plaintiff suffered an injury and the claim accrued.
It is clear that the relevant date for statute of
limitations purposes is the date of plaintiff’s injury.

The

Alabama Supreme Court’s decision in Henderson, 23 So. 3d 625, is
instructive on this point.

The Henderson case involved the same

defendant (Mead), the same worksite (CAPCO), and the same
theories of liability (duty to provide a safe worksite and
negligent inspection) as the instant cases.

Plaintiff worked at

CAPCO during the summers of 1971 and 1972 while he was in
college.

Id. at 627.

Plaintiff asserted that Mead had

“voluntarily assumed a duty to inspect the CAPCO plant and to
ensure compliance with safety standards.”

Id. at 628.

The

Alabama Supreme Court, however, found that Plaintiff’s claims
were time-barred, because “based on the law as it then existed,
[Plaintiff]’s claim of personal injury resulting from exposure to
asbestos would have accrued in 1972, on the date of his last
exposure to asbestos at CAPCO.”

Id. at 630.

Therefore, in

Henderson, Plaintiff’s claim was time-barred, based on the last
date of exposure to asbestos.
The instant cases are distinguishable from Henderson,

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because Plaintiffs here have raised at least a genuine issue of
fact as to whether Plaintiffs were exposed to asbestos after
1979.

Plaintiff Farrell Riggs and Plaintiff Alfred McGuffie

worked at CAPCO until it closed in 1982.

Plaintiff Charles

Archer worked at National Cement until 2002.2

Under Alabama law,

when a plaintiff shows post-1979 exposure to asbestos, his or her
action does not “accrue” until the individual knew or should have
known of an asbestos-related disease.
(1993).

Ala. Code 1975 § 6-2-30

As there is a genuine issue of material fact as to

whether post-1979 exposure to asbestos occurred as alleged, Mead
is not entitled to summary judgment on this ground.
The Court notes that Mead’s lack of involvement at the
worksites after 1974 may be relevant on the issue of proximate
cause.

To be held liable under a negligent inspection theory, a

plaintiff must show that a defendant (1) undertook inspections
(2) did so negligently and (3) “that such negligence was the
proximate cause of his injuries.”

2

Glover v. Silent Hoist & Crane

Both parties’ moving papers focus on Mead’s involvement at
CAPCO, and do not provide as much information regarding Mead’s
involvement in the closely-related National Cement plant.
However, as Mead has conceded that it had an ownership interest
in National Cement and did not move for summary judgment
specifically on its duty (or lack thereof) with respect to
National Cement. View the factual record in the light most
favorable to Plaintiffs, as the Court must, the Court accepts for
purposes of the motion that Plaintiffs’ theories apply equally to
CAPCO and National Cement.

7

Co., Inc., 471 F. Supp. 457, 459 (N.D. Ala. 1979)(finding that
insurer’s safety recommendations were not the proximate cause of
plaintiff’s injuries).

A jury may determine that the significant

gap in time between Mead’s actions and Plaintiffs’ injuries
renders the causal relationship too attenuated.

However, Mead

has not moved for summary judgment on proximate cause and, in any
event, it is traditionally a question reserved for the jury under
Alabama law.

See, e.g, Mobile Gas Serv. Corp. v. Robinson, 20

So. 3d 770 (Ala. 2009)(“Ordinarily, it is a jury question whether
consequences of an act are reasonably foreseeable . . . .”).3

B.

Grounds for Liability

1.

Sale of Asbestos-Containing Gaskets

Mead additionally moves for summary judgment on
Plaintiffs’ claims that Mead sold asbestos-containing gaskets to
CAPCO.

Mead has produced the testimony of Anthony Oliver, Vice

President and Assistant Treasurer of MW Custom Papers LLC

3

Having decided that Plaintiffs’ claims are not barred by
the Alabama statute of limitations, the Court need not address
Plaintiffs’ alternative argument that the federal statute of
limitations pursuant to the Comprehensive Environmental Response
Compensation and Liability Act (“CERCLA”) governs their claims.
Plaintiffs’ claims regarding exposure to dumpsites under Alabama
law is addressed below, II(B)(4).

8

(successor in interest to Mead) stating that, “MW is in
possession of no documents or information that indicate that
there was an asbestos component to any gaskets sold by Murray
Rubber to CAPCO” and that a review of documents in possession
revealed that the gaskets were made of rubber, and were not
asbestos-containing.
¶ 1, ¶ 17.)

(Decl. of Anthony Oliver, doc. no. 111, at

Plaintiffs have produced invoices of gasket sales to

CAPCO, but provide no evidence that the gaskets were asbestoscontaining.

As Plaintiffs have failed to point to evidence of

record that the gaskets at issue were asbestos-containing, Mead
is entitled to summary judgment on this ground.

2.

Mead Voluntarily Undertook the Duty to Provide a
Safe Workplace

Plaintiffs’ Complaint “alleges direct liability under
Alabama Law for negligence in [Mead’s] independent and voluntary
assumption of duties over management supervision, safety concerns
and safety inspections at the CAPCO facility.”

(Pl.’s Resp. at

21.)
Mead responds that it was a “mere shareholder” of
CAPCO, and that Alabama law prevents an imposition of liability
under these circumstances.

Mead relies on the Supreme Court of

Alabama’s decision in In Re Birmingham Asbestos Litigation,
wherein the court held that the corporate veil could not be

9

pierced to allow asbestos plaintiffs to hold parent corporations
liable for the acts of their subsidiaries.
1993).

619 So. 2d 1360 (Ala.

However, this argument misses the mark.

Plaintiff’s

theory of liability in this case is not based solely on the
corporate relationship between Mead and CAPCO, but rather on
Mead’s voluntary undertaking of a duty.

Such a voluntary

undertaking is unrelated to Mead’s status as a shareholder.
Therefore, Mead’s assertion of “shareholder immunity” is
misplaced, and does not preclude Plaintiffs’ claims.
Under Alabama law, an employer’s duty to provide a safe
workplace is generally nondelegable, although it has been
established that an employer can delegate the responsibility to
someone within the business such as “supervisory co-employees.”
Procter & Gamble Co. v. Staples, 551 So. 2d 949, 952 (Ala. 1989).
Additionally, outside parties, such as separately incorporated
but related business entities, may have a duty to provide a safe
workplace if they exercise “control or custody” of the workplace.
Id. at 953. In Procter, the Court analyzed whether the parent
company defendant had exercised “custody and control” of the
premises of a separately incorporated, wholly owned facility.
Id. at 950.

The court found that it did not.

The evidence

regarding defendant’s custody and control was that it assisted
the employer in setting up a safety program during the

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construction of the plant, provided safety literature,
implemented a “tracking system” to monitor safety programs, and
provided a safety policy which the employer chose to adopt.
at 953.

Id.

After the plant was opened, defendant answered a few

safety-related questions and made two visits to the plants to
discuss safety.

Id. at 953-54.

The Court found that this record

was insufficient to find that defendant “undert[ook] to provide
plaintiff’s decedent a safe place to work.”

Id. at 954.

In the instant cases, the record is clear that Mead had
some level of oversight regarding safety issues at CAPCO.

In

1963, Woodward Corporation (“Woodward”) and American Smelting and
Refining Company (“Asarco”) entered into an agreement for the
creation of CAPCO.

Woodward was already in the pipe business,

and wanted to “expand its manufacturing to include the production
and sale of cement asbestos products, especially cement asbestos
pipe.”

(Pl.’s Ex. 3).

Asarco was to supply the asbestos, via

its subsidiary Lake Asbestos of Quebec, Ltd.

(Id.)

The division

of the ownership of the plant was 60% Woodward/40% Asarco.

(Id.)

The agreement provided that CAPCO “will be operated as a selfsufficient entity, the parties recognize that CAPCO can be
operated with substantially greater economy and efficiency if
Woodward will supply direct management supervision on a
consultant basis, which it is willing to do . . . .”

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(Id.)(emphasis added).

Generally, “the affairs of CAPCO will be

under the general management of the board of directors of six
individuals, of whom three will always be designated by Asarco.”
(Id.)
On November 30, 1968, Woodward and The Mead Corporation
(“Mead”) entered into a merger agreement, wherein Mead, as the
surviving corporation, took over “all the rights, privileges,
immunities, powers, franchises, and authority” of Woodward.
(doc. no. 118-9, at 1.)
Both prior to and after the merger, Woodward, and then
Mead, employed a Director of Safety, Stanley Mooney.
Resp., doc. no. 11-2 at 7.)

(Pl.’s

Mooney performed safety inspections

twice a month, would talk about any unsafe practices with
employees, and would send a written report regarding his
inspection.

Under these circumstances, it is apparent that there

was a corporate relationship between CAPCO and Mead that involved
safety consulting.

The central question before the Court is

whether this consulting rose to the level of “custody or control”
over safety at CAPCO.
This Court previously granted summary judgment in favor
of Mead in the instant cases, finding that Mead’s actions with
respect to CAPCO did not rise to the level “control or custody”
over the worksite to support a finding that Mead voluntarily

12

assumed the duty of providing a safe worksite at CAPCO.
70093, doc. no. 41, at 10.

See, 09-

Plaintiffs had produced numerous

pieces of correspondence between Mooney and various Woodward/Mead
and CAPCO executives.

For example, on June 18, 1971, directed

all divisions of the company to send monthly safety reports and
inspection reports to Woodward, but emphasized that OSHA reports
should just be kept on file.
1.)

(Pl.’s Ex. 20, doc. no. 118-22, at

Other correspondence included advice on OSHA compliance, and

inquiries into general industrial hygiene measures being taken.
This Court noted that “Plaintiffs assume rather than
explain why the documents [produced] actually created” a
relationship of custody or control over CAPCO’s operations.
However, this Court later granted Plaintiffs’ Rule 60(b) Motion,
vacating the grant of summary judgment, in light of Plaintiffs’
pending motion to compel which was outstanding but had not been
addressed at the time of the summary judgment decision.

Mead has

now produced the requested documents, and the issue is again ripe
for adjudication.
Plaintiffs’ rely on three new exhibits that were not
previously before the Court, as follows:
(1) Agreement between Woodward and Asarco for the
creation of CAPCO, discussed above. (Pl.’s Ex. 3,
doc. no. 118-5.)
(2) Letter from Stanley Mooney, dated March 29,
1968, noting that the sand blasting done inside the

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CAPCO facility was creating an “atmospheric
condition that “could result in something serious
later” for the men working at CAPCO and his
recommendation that “action be taken to eliminate
this condition as soon as possible.”
(Pl.’s Ex.
60, doc. no. 118-65, at 1.) Attached is a followup letter, directing S.D. Weaver, General Manager
of the plant and Vice President of CAPCO, to “come
up with a proposal to separate this operation from
the shop, giving adequate venting or collection to
the exhaust from this operation.” (Id. at 2.)
(3)
Approval
for
Capital
Expenditures
memo
regarding dust collectors for CAPCO.
(Pl.’s Ex.
62, doc. no. 118-67, at 1.)
Plaintiffs contend
that this speaks to the fact that “Mead financially
controlled the ability to make improvement, such as
repair or replacement of the dust collectors.”
(Pl.’s Resp., doc. no. 118-2, at 27.)
In 1974, Mead sold all of its interest is CAPCO and
National Cement.

In addition to the unsatisfactory performance

at the plant, Mead cited the “adverse development[]” of “asbestos
related cancer publicity.”

(Mead Exec. Cmte. Meeting, Sept. 26,

1974, doc. no. 118-11, at 3.)
The evidence produced by Plaintiffs, even when viewed
as a whole and in a light most favorable to them, fails to rise
to the level at which a reasonable jury could find that Mead had
“custody or control” of the work environment. The documents
creating CAPCO envisioned Mead’s role as a consultant, and the
evidence presented is consistent with that vision.

As part owner

of the plant, Mead periodically inquired as to specific safety
concerns, and was involved in providing advice and guidance on

14

OSHA requirements.

In Procter, the defendant parent company

clearly had a level of involvement at the worksite, and indeed
created the safety program.

However, consulting about safety

concerns does not rise to the level of undertaking the duty to
provide a safe workplace.
In the instant cases, it is clear that CAPCO executives
and employees retained custody and control of the worksite, and
ultimately had the duty to provide a safe working environment.
For example, when asked to name the individuals who promulgated
departmental safety rules at CAPCO, S.D. Weaver, former Vice
President and General Manager of the Plant from 1964 to 1967
named himself “Bill Jemison, Horace Beasley and Richard Creech.”
(Pl.’s Ex. No. 26, doc. no. 118-28, at ¶ 20.)

The policies and

procedures did not come from Mooney or Woodward/Mead, but from
CAPCO executives and employees.

Indeed, in Plaintiffs’ newly-

produced Exhibit 62, the response to Mead employee Mooney’s
concern was to direct S.D. Weaver to create a solution.
Therefore, Mead is entitled to summary judgment on
Plaintiffs’ claim that it had “custody or control” of CAPCO such
that it had a duty to provide a safe workplace.

3.

Mead Voluntarily Undertook a Duty to Inspect the
Premises, and did so Negligently

Plaintiffs additionally assert a theory of negligent

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inspection, a separate and independent theory from the “custody
or control” basis of liability.

See Procter (finding that the

case was tried on separate theories of “allegedly negligent
inspections” and “fail[ure] to provide plaintiff’s decedent with
a safe workplace”); see also Ramirez v. Ala. Power Co., 898 F.
Supp. 1537 (M.D. Ala. 1995)(separately analyzing plaintiff’s
claims of “failure to provide a safe workplace” and “failure to
perform safety inspections”).
In Procter, one month prior to the incident, defendant
conducted an audit of the plant, wherein its agent examined the
compactor that eventually caused the injury and found no problem
with it.

Id. at 955.

There was expert testimony to the effect

that “anybody” familiar with that type of equipment would have
recognized a dangerous condition.

Id.

Despite defendant’s

argument that it performed a general audit, the Court found that
defendant had indeed performed a “safety inspection,” and that
the duty “once assumed, is one of inspecting and reporting.”
at 956 (internal citations omitted).

Id.

The Court found that the

jury was properly instructed on the negligent inspection claim.
In the instant cases, the record reveals that Mead
voluntarily undertook inspections of CAPCO, and there remains a
genuine issue of material fact as to whether Mead did so
negligently.

16

In answers to interrogatories from an unrelated case,
S.D. Weaver, CAPCO Executive, stated the following regarding
inspections of the CAPCO plant:
During the time I was employed by Capco at its
Ragland facility, the safety director of Woodward
Iron, Dan Mooney [sic], would conduct a safety
inspection of the facility twice per month.
I
would generally accompany him on his inspection.
The inspection included all aspects of plant safety
and housekeeping.
If Mr. Mooney observed any
unsafe work practice, he would discuss it with the
employee.
Mr. Mooney would then send a written
report concerning his inspection.
In addition,
safety was always a concern to all management
personnel. If any manager observed an unsafe work
practice it would be pointed out and the employee
would be told how to do what they were doing
safely. I believe that OSHA inspectors and Alabama
State inspectors visited the Ragland facility from
time to time. (Pl.’s Ex. No. 26, at ¶ 13).
Plaintiffs have produced evidence that the
decision to put off taking any dust counts at CAPCO was
“discussed with Stan Mooney after a visual inspection tour.”
(Pl.’s Ex. 24, doc. no. 118-26, at 2, letter dated January
25, 1971.)

In 1972, CAPCO reported to the Alabama Air

Pollution Control Commission that 6,000 tons of asbestos
were used each year in its manufacturing process.

(Permit

Appl. for Manufacturing or Processing, Pl.’s Ex. 10. doc.
no. 118-12, at 8.)

Plaintiff Ferrell Wade Riggs testified

that, notwithstanding the presence of visible asbestos dust
in the air, no breathing devices of any kind were issued,

17

and that he used “one little old cloth mask one time” at his
own request, but that there was no standard respiratory
protective gear issued or recommended.

(Dep. of Ferrell

Wade Riggs, Oct. 17, 1997, 40:14-16; 41:5-7, doc. no. 11846.)

On the factual record presented, there is at least a

genuine issue of material fact as to whether Mead undertook
to inspect the worksite, performed the inspections
negligently and that such inspections were the proximate
cause of Plaintiffs’ asbestos-related injuries.

Glover v.

Silent Hoist & Crane Co., Inc., 471 F. Supp. 457, 459 (N.D.
Ala. 1979).
4.

Exposure at Dumpsites

Plaintiffs additionally allege that Mead is liable for
injuries caused by exposure to asbestos at Mead’s owned and
operated dumpsite.
Mr. Archer testified that after he left CAPCO he “went
around the area up there outside the plant where the dump and
everything is.

I quail hunted and I quail hunted a lot up in

there and we – we shot some doves up in there.
shoot.”
at 5.)

They had a dove

(Dep. of Charles Archer, Nov. 17, 2003, doc. no. 118-47,
Plaintiff Iris McGuffie, wife of Alfred McGuffie,

testified that she and her husband would “take limbs cut from our
trees to the CAPCO dumpsite.”

(Aff. of Iris McGuffie, Apr. 4,

18

2011, doc. no. 118-52.)
This testimony evinces a minimal level of contact with
the CAPCO dumpsite.

From this evidence, no reasonable jury could

find that exposure to asbestos dust at the CAPCO dumpsite was a
substantial contributing factor to Plaintiffs’ asbestos-related
injuries, as required by Alabama law.

Blackston v. Shook &

Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir. 1985).

III. CONCLUSION
Based on the foregoing, Plaintiffs’ claims are not
time-barred, as they have presented evidence that may show post1979 exposure.

However, Mead is entitled to summary judgment on

all of Plaintiffs’ claims except that Mead voluntarily undertook
a duty to inspect the premises, and did so negligently.

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