Ferguson v. Bayer CropScience, L.P.
MEMORANDUM OPINION & ORDER granting the defendant, Bayer CropScience, L.P.'s 111 MOTION to Dismiss or in the alternative, Motion for Summary Judgment. Signed by Judge Joseph R. Goodwin on 9/26/2011. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:11-cv-00087
BAYER CROPSCIENCE, L.P.,
MEMORANDUM OPINION & ORDER
Pending before the court is a Motion to Dismiss, or in the alternative, Motion for
Summary Judgment, by the defendant, Bayer CropScience, L.P. (“BCS”) [Docket 111]. For the
reasons set forth below, the court GRANTS the defendant’s Motion for Summary Judgment.
The defendant runs a chemical facility in Institute, West Virginia and formerly operated a
methyl isocynate (“MIC”) unit at the plant. On August 28, 2008, an explosion at the chemical
facility was felt throughout the region. The explosion caused “windows to break in a 7 mile
radius” and resulted in “an intense fire that burned for more than four hours sending flames 200
hundred feet in the air.” (Second Am. Compl. [Docket 110], at 2.) One plant employee was
killed immediately and a second employee died forty-one days later from injuries obtained in the
incident. The explosion prompted reviews by government agencies, including the United States
Chemical Safety Board (“CSB”) and the House Committee on Energy and Commerce,
Subcommittee on Oversight and Investigations.
The plaintiff, Mr. Ferguson, lives near the plant, and the plaintiff’s wife, Gail Marie
Ferguson, was at their house on August 28, 2008, when the explosion occurred. (Id. at 7 ¶ 19.)
Mrs. Ferguson began having difficulty breathing approximately three days after the explosion,
and she died on October 11, 2008. (Def.’s Mem. in Support of Mot. to Dismiss or Summ. J.
[Docket 112], at 3, 5.) After Mrs. Ferguson’s death, the plaintiff had an autopsy performed on
Mrs. Ferguson because he believed that the explosion at the chemical facility had damaged her
health. (Def.’s Mot. to Dismiss or Summ. J. [Docket 111-1), at Ex. A, p. 33 ¶¶ 17-24.)
This case was originally filed by the plaintiff, Mr. Ferguson, and fifteen others on
February 8, 2011. The original action requested a temporary restraining order prohibiting the
defendant from restarting the MIC unit at the chemical facility in Institute. (Compl. [Docket 1],
at 13 ¶ 25.) The temporary restraining order was granted by the court on February 10, 2011
[Docket 16], and the original plaintiffs amended their Complaint to include personal injury and
property damage claims and to request medical monitoring. (Def.’s Mem. in Support of Mot. to
Dismiss or Mot. Summ. J. [Docket 112], at 2.) On March 18, 2011, this court denied the original
plaintiffs’ request for preliminary injunction because BCS revealed that it did not plan to restart
the MIC unit. (Id. at 3.) After the denial of the motion for preliminary injunction, each plaintiff,
with the exception of Mr. Ferguson, dismissed their claims against the defendant without
On April 20, 2011, the plaintiff filed a Second Amended Complaint, bringing a wrongful
death claim against the defendant for his wife’s death. (Second Am. Compl. [Docket 110].) The
defendant filed a Motion to Dismiss, or in the Alternative, for Summary Judgment on May 11,
2011 (Def.’s Mot. to Dismiss or Mot. Summ. J. [Docket 111].) The motion is now ripe for
Summary Judgment Standard of Review
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). In considering a motion for summary judgment, the court will not Aweigh the
evidence and determine the truth of the matter.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986).
Although the court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some Aconcrete
evidence from which a reasonable juror could return a verdict in his [or her] favor.@ Anderson,
477 U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of
proof on an essential element of his or her case and does not make, after adequate time for
discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The nonmoving party must satisfy this burden of proof by offering more than a
mere Ascintilla of evidence@ in support of his or her position. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987); Ross v. Comm=ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985), abrogated on other grounds, 490 U.S. 228 (1989).
The defendant asserts that the statute of limitations bars the plaintiff’s wrongful death
claim. In contrast, the plaintiff claims that the statute of limitations on his wrongful death claim
did not begin to accrue until April 23, 2009, the time at which the plaintiff asserts that he learned
of the defendant’s “negligent operation of the Institute chemical plant” in a public hearing. (Pl.’s
Resp. to Def.’s Mot. to Dismiss or Mot. for Summ. J. [Docket 115], at 1 ¶ 1.) The plaintiff filed
his Second Amended Complaint, asserting the wrongful death claim, on April 20, 2011. Thus,
the plaintiff argues that his wrongful death claim was filed three days before the claim was
barred by the statute of limitations.
In West Virginia, the statute of limitations for a wrongful death claim is two years,
running from the date of the deceased’s death. W. Va. Code § 55-7-6(d). However, the
discovery rule may toll the running of the statute of limitations.
Mack-Evans v. Hilltop
Healthcare Ctr., Inc., 226 W. Va. 257, 262 (2010); Gaither v. City Hosp., Inc., 199 W. Va. 706,
711-12 (1997). Under the discovery rule:
the statute of limitations begins to run when the decedent’s representative knows or by
the exercise of reasonable diligence should know (1) that the decedent has died; (2) that
the death was the result of a wrongful act, neglect, or default; (3) the identity of the
person or entity who owed the decedent a duty to act with due care and who may have
engaged in conduct that breached that duty; and (4) that the wrongful act, neglect, or
default of that person or entity has a causal relation to the decedent’s death.
Mack-Evans, 226 W. Va. 257, 263 (2010).
In this case, the plaintiff knew of his wife’s death on October 11, 2008. The plaintiff also
knew BCS’s identity and that BCS operated the chemical facility in Institute, West Virginia.
Additionally, in his deposition, the plaintiff admits that he and his wife believed that her
respiratory problems after the explosion were the result of the incident at the chemical facility.
See id. at 33, ¶¶ 9-22 (stating that Mrs. Ferguson told him that “that blast that they had the other
night has really affected me” and revealing that Mrs. Ferguson told him on a later date that “[i]t’s
really affected my breathing”). The plaintiff went so far as to request that an autopsy be
performed on his wife to determine whether her death was causally related to the explosion.
Thus, on October 11, 2008, the plaintiff knew that “the decedent [had] died,” “the identity of the
person or entity who owed the decedent a duty to act with due care,” and that the entity’s actions
may have a “causal relation to the decedent’s death.” See Mack-Evans, 226 W. Va. 257, 263
The plaintiff claims that, before April 23, 2009, he was unaware of Bayer’s alleged
negligence in operating the chemical plant. The explosion at the chemical facility on August 28,
2008, was a traumatic event for the plaintiff and his wife. See Def’s Mot. to Dismiss or Mot.
Summ. J. [Docket 111-1], at Ex. A, p. 26, ¶¶ 12-15 (“It literally almost knocked us off of the
couch. . . . It scared me to death, scared my wife.”). Some events and occurrences are enough to
put a plaintiff on notice that he or she has a possible cause of action.
The discovery rule applies to wrongful death actions; however, its application does not
eliminate a plaintiff’s “affirmative duty . . . to discover or make inquiry to discern additional
facts about his injury when placed on notice of the possibility of wrongdoing.” McCoy v. Miller,
213 W. Va. 161, 165 (2003). The Supreme Court of Appeals of West Virginia has stated that
“[w]here a plaintiff knows of his injury, and the facts surrounding that injury place him on notice
of the possible breach of a duty of care, that plaintiff has an affirmative duty to further and fully
investigate the facts surrounding that potential breach.” Id. When “an injury or wrong occurs of
such a character that a plaintiff cannot reasonably claim ignorance of the existence of a cause of
action,” the plaintiff bears the burden of proving that it is entitled to benefit from the discovery
rule. Gaither v. City Hosp., Inc., 199 W. Va. 706, 712 (1997). Uncommon occurrences put the
plaintiff on notice of the possibility of negligence.
The August 28, 2008, explosion was not a common occurrence. Notably, the explosion
was intense and involved the shattering of windows that were within a seven mile radius of the
blast. In his deposition testimony, the plaintiff describes the blast as so strong that initially he
believed that “a truck, a tractor trailer had run into the end of [his] house.” (Def’s Mot. to
Dismiss or Mot. Summ. J. [Docket 111-1], at Ex. A, p. 25-26, ¶¶ 24, 1-5.) The severity of the
explosion combined with Mrs. Ferguson’s subsequent respiratory problems and death would put
a reasonable person on notice that he or she might have a cause of action. See Def’s Mot. to
Dismiss or Mot. Summ. J. [Docket 111-1], at Ex. A, p. 33, ¶¶ 9-11 (testifying that Mrs. Ferguson
told him that “that blast that they had the other night has really affected me”). Additionally, the
CSB conducted an investigation after the October 11, 2009 incident and the House Committee
on Energy and Commerce, Subcommittee on Oversight and Investigations held a hearing on the
explosion on April 21, 2009. (Second Am. Compl. [Docket 110], at 6 ¶ 5.) However, the
plaintiff failed to take any steps to fulfill his affirmative duty to “fully investigate the facts
surrounding that potential breach.” See McCoy v. Miller, 213 W. Va. 161, 165 (2003).
There is no genuine issue of material fact regarding whether a reasonable person would
be on notice of the possibility of wrongdoing in light of the explosion, Mrs. Ferguson’s
respiratory problems, and the plaintiff’s request for an autopsy of Mrs. Ferguson’s body.
Additionally, there is no genuine issue of material fact that the plaintiff failed to present evidence
that he affirmatively investigated the incident to determine whether the explosion was the result
of a “wrongful act, neglect, or default.” See Mack-Evans, 226 W. Va. 257, 263 (2010). Because
the plaintiff failed to take steps to investigate the incident, the plaintiff is not entitled to the
benefit of the discovery rule. See McCoy, 213 W. Va. at 165 (2003).
Thus, the court FINDS that the statute of limitations began to run on October 11, 2008,
the date of Mrs. Ferguson’s death, as required by W. Va. Code § 55-7-6(d). Because the statute
of limitations began running on October 11, 2008 and the statute of limitations for wrongful
death claims is two years, the plaintiff’s claim would be barred by the statute of limitations after
October 11, 2010. In this case, the plaintiff filed its Second Amended Complaint containing the
wrongful death claim on April 20, 2011, which is after the statute of limitations barred the claim.
Accordingly, the court GRANTS the defendant’s Motion for Summary Judgment.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
September 26, 2011
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