R. McGhee, Jr.
Morgantown, West Virginia Kay Casto & Chaney
Stuart Calwell Charleston, West Virginia
Charleston, West Virginia Attorney for Appellee Carboline
Attorneys for Appellants
Paula L. Durst
L. Baker II
James S. Crockett, Jr. Huddleston, Bolen, Beatty, Porter
Beth Ann Rauer & Copen
Spilman Thomas & Battle Huntington, West Virginia
Charleston, West Virginia Attorney for Appellee Fina Oil
Attorneys for Appellee E.I. DuPont
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
circuit court's entry of summary judgment is reviewed de novo. Syllabus
point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
'Collateral estoppel will
bar a claim if four conditions are met: (1) The issue previously decided is
identical to the one presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party against whom
the doctrine is invoked was a party or in privity with a party to a prior action;
and (4) the party against whom the doctrine is raised had a full and fair opportunity
to litigate the issue in the prior action.' Syl. Pt. 1, State v. Miller,
194 W. Va. 3, 459 S.E.2d 114 (1995). Syllabus point 1, Haba v.
Big Arm Bar and Grill, Inc., 196 W. Va. 129, 468 S.E.2d 915 (1996).
defeat summary judgment, an affidavit that directly contradicts prior deposition
testimony is generally insufficient to create a genuine issue of fact for
trial, unless the contradiction is adequately explained. To determine whether
the witness's explanation for the contradictory affidavit is adequate, the
circuit court should examine: (1) Whether the deposition afforded the opportunity
for direct and cross-examination of the witness; (2) whether the witness
had access to pertinent evidence or information prior to or at the time of
his or her deposition, or whether the affidavit was based upon newly discovered
evidence not known or available at the time of the deposition; and (3) whether
the earlier deposition testimony reflects confusion, lack of recollection or other
legitimate lack of clarity that the affidavit justifiably attempts to explain. Syllabus
point 4, Kiser v. Caudill, 215 W. Va. 403, 599 S.E.2d 826 (2004).
James and Nancy Tolley, husband and wife, appellants/plaintiffs below (hereinafter referred to as the Tolleys), appeal an order of the Circuit Court of Kanawha County granting summary judgment in favor of Carboline Company, E.I. DuPont De Nemours and Company, and Fina Oil and Chemical Company, appellees/defendants below (hereinafter referred to as the Appellees). The Tolleys contend that genuine issues of material fact were in dispute, and, therefore, summary judgment was inappropriate. After thoroughly reviewing the record designated for appellate review and the pertinent authorities, we affirm the circuit court's decision to grant summary judgment.
The claim against ACF was filed
as a deliberate intent cause of action pursuant to W. Va. Code § 23-4-2(c)(2)(ii)
(1983). The claim filed against the Appellees was premised upon the theories
of negligence, failure to warn, breach of warranty, and strict liability. After
a period of discovery, both the Appellees and ACF moved for summary judgment.
The Appellees contended that summary judgment was appropriate because the evidence
proved only that Mr. Tolley had a mere possibility of exposure to the
chemicals isocyanates and phthalic anhydrides. Similarly, ACF argued that summary
judgment was appropriate as there was no actual evidence that Mr. Tolley
was exposed to isocyanates and phthalic anhydrides. The circuit court granted
ACF's motion for summary judgment. However, the circuit court denied the summary
judgment motion filed by the Appellees.
The Tolleys appealed the
dismissal of their cause of action against ACF. This Court heard the appeal
and affirmed the summary judgment ruling in Tolley v. ACF Industries,
Inc., 212 W. Va. 548, 575 S.E.2d 158 (2002) (per curiam) (hereinafter
referred to as Tolley I). Subsequent to this Court's decision
in Tolley I, the Appellees filed a renewed motion for summary judgment
before the circuit court. The Tolleys responded to the renewed summary judgment
motion by filing supplemental affidavits from experts. The trial court reconsidered
the motion and concluded that rulings made in Tolley I were dispositive
of the claims against the Appellees. The circuit court therefore granted
the Appellees' renewed motion for summary judgment. From this second ruling,
the Tolleys now appeal. (See
The Tolleys are correct
in asserting that a deliberate intent cause of action requires proof of elements
which are unnecessary to establish a claim for negligence, failure to warn,
breach of warranty, or strict liability. (See
footnote 4) However, there is one requirement that exists in a deliberate intent cause of action that also exists in the claims asserted
against the Appellees. That requirement is proximate cause. See Aikens
v. Debow, 208 W. Va. 486, 491, 541 S.E.2d 576, 581 (2000) (discussing
requirement of proximate cause in negligence cause of action); City Nat'l.
Bank of Charleston v. Wells, 181 W. Va. 763, 771, 384 S.E.2d 374,
382 (1989) (discussing requirement of proximate cause in breach of warranty
cause of action); Ilosky v. Michelin Tire Corp., 172 W. Va. 435,
443, 307 S.E.2d 603, 611 (1983) (discussing requirement of proximate cause
in failure to warn cause of action); Morningstar v. Black & Decker
Mfg. Co., 162 W. Va. 857, 883, 253 S.E.2d 666, 680 (1979) (discussing
requirement of proximate cause in strict liability cause of action).
Although the issue of proximate
cause in a deliberate intent cause of action is statutory, the definition
of proximate cause set out in the statute is the common law definition adopted
by this Court. (See
footnote 5) We have held that 'the proximate cause
of an event is that cause which in actual sequence, unbroken by any independent
cause, produces the event and without which the event would not have occurred.' Johnson
v. Mays, 191 W. Va. 628, 633, 447 S.E.2d 563, 568 (1994) (quoting Matthews
v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 654-55, 77
S.E.2d 180, 189 (1953)). The burden of establishing proximate cause is always on the plaintiff. See Syl. pt. 2, Walton v. Given,
158 W. Va. 897, 215 S.E.2d 647 (1975) (The burden is on the plaintiff
to prove by a preponderance of the evidence that the defendant was negligent
and that such negligence was the proximate cause of the injury.); Whetstine
v. Gates Rubber Co., 895 F.2d 388, 393 (7th Cir. 1990) (A
plaintiff who fails to establish the element of proximate cause . . .
has not sustained his burden of making a prima facie case[.]). Further, [s]ummary
judgment is proper against a party who fails to make a showing sufficient
to establish the existence of an element essential to the party's case and
on which that party will bear the burden of proof at trial. Grandbois & Grandbois,
Inc. v. City of Watford City, 685 N.W.2d 129, 135 (S.D. 2004).
In Tolley I we clearly found that the Tolleys failed to establish proximate cause. In fact, we held that the Tolleys failed to present any evidence to show that, while Mr. Tolley was working for AFC, he was exposed to any of the chemicals that allegedly caused or exacerbated his breathing problems. The opinion addressed the proximate cause issue as follows:
The lower court found that [the
Tolleys] failed to prove the fifth prong of the deliberate intention standard
based on the fact that their medical experts were unable to identify with the
necessary specificity the cause of Mr. Tolley's medical condition[:]
Plaintiffs have failed to establish proximate cause because plaintiffs' medical causation expert cannot identify the actual cause of the plaintiff's respiratory condition. Plaintiffs' medical expert simply opined that 'there were three potential causes' for the plaintiff's alleged aggravation of his preexisting asthma: exposure to phthalic anhydrides or isocyanates or chronic exposure to unidentified non-specific irritants.
In response to this finding, [the Tolleys] contend that by identifying exposure to at least three different products that can cause his condition, they met the proximate causation requirement.
As the circuit court correctly ruled, the law is clear that a mere possibility of causation is not sufficient to allow a reasonable juror to find causation. Just as [the Tolleys] relied solely on the opportunity for exposure in arguing that they demonstrated an unsafe working condition, they similarly rely on indeterminate expert testimony on causation that is based solely on possibility.
Critical to establishing exposure to a toxic chemical is knowledge of the dose or exposure amount and the duration of the exposure. . . . In this case, there is absolutely no evidence to demonstrate that Mr. Tolley was ever exposed to isocyanates. Without that crucial evidence and certainly without any indication of isocyanate antibodies in his blood, there is no basis from which a jury could begin to conclude that Mr. Tolley's breathing condition resulted from exposure to isocyanates.
Dr. Lockey, an expert witness upon whom [the Tolleys] rely for causation, testified that he had no knowledge of any of the factors that would impact on issues of exposure. For example, he did not know how often Mr. Tolley was in the Exterior Finish Booth where the HDI containing top coat was applied; how close Mr. Tolley was to the Prime Booth or to the paint sprayers; the type of ventilation equipment used; or the frequency and level of exposure. Acknowledging that this was a case of potential exposure, Dr. Lockey based his causation testimony on Mr. Tolley's general representation that he was in and out of the area on a regular basis. Other than a single pulmonary function test, Dr. Lockey did not review any of Mr. Tolley's medical records for the relevant time period.
Dr. Lockey, as the trial court specifically found, testified that the plaintiff's current respiratory problems could be aggravation of preexisting asthma, predating his employment at ACF, exacerbated by non-specific irritants irrespective of any exposure at ACF to the chemicals at issue. Given the lack of any evidence of exposure in this case combined with the inability of [the Tolleys'] experts to connect his medical symptoms to the alleged exposure, we simply cannot find that the lower court erred in concluding that [the Tolleys'] general conclusion [that Mr. Tolley had the opportunity for exposure to asthma sensitizers] does not establish actual exposure and does not satisfy the proximate cause requirement of the West Virginia Workers' Compensation Act.
Tolley I, 212 W. Va. 558-59, 575 S.E.2d at 168-69. (See footnote 6)
In the instant case, the
trial court held that because Tolley I adopted the findings of fact
that the lower court had made in the Tolleys' claim against ACF, any
contrary findings of fact or conclusions of law on the causation issue [against
the Appellees] would violate principles of collateral estoppel (issue preclusion). (See
We previously have noted that [t]he doctrine of collateral estoppel applies to preclude the litigation of an issue that has been previously resolved. Stillwell v. City of Wheeling, 210 W. Va. 599, 605, 558 S.E.2d 598, 604 (2001). 'Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit.' Stillwell, 210 W. Va. at 605-06, 558 S.E.2d at 604-05 (quoting Lane v. Williams, 150 W. Va. 96, 100, 144 S.E.2d 234, 236 (1965)). This Court has held that
'[c]ollateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.' Syl. Pt. 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
Syl. pt. 1, Haba v. Big Arm Bar & Grill, Inc., 196 W. Va. 129, 468 S.E.2d 915 (1996).
We believe that all four elements
of collateral estoppel were satisfied in this case. First, in the instant case
the issue of whether or not Mr. Tolley's breathing problems were proximately
caused by isocyanates or phthalic anhydrides is the same issue that was presented
in Tolley I. Second, there has been a final adjudication on the merits
of the Tolley I action, insofar as this Court affirmed the summary judgment
order in favor of ACF. See Stemler v. Florence, 350 F.3d 578, 587
(6th Cir. 2003) (A summary judgment order is a decision on the
merits.). Third, the Tolleys are the plaintiffs in the instant action,
and they were the plaintiffs in Tolley I. Finally, the Tolleys had a full
and fair opportunity to litigate the proximate cause issue in Tolley I.
In order for the Tolleys
to overcome the application of collateral estoppel, [t]here must be additional and strong fact evidence, which has not
been shown to have been supplied to the [trial] court [in Tolley I]. Molinaro
v. Fannon/Courier Corp., 745 F.2d 651, 655 (Fed. Cir. 1984). The Tolleys
contend that in the instant proceeding they did in fact produce additional
evidence on the proximate cause issue that was not presented in Tolley
I. Accordingly, we shall examine this contention in the next section.
1. Dr. Lockey's affidavit. Dr. Lockey's deposition testimony was considered in Tolley I. In this Court's decision in Tolley I we found that Dr. Lockey was only able to state that 'there were three potential causes' for the plaintiff's alleged aggravation of his preexisting asthma: exposure to phthalic anhydrides or isocyanates or chronic exposure to unidentified non-specific irritants. Tolley I, 212 W. Va. at 558, 575 S.E.2d at 168. Therefore, we rejected Dr. Lockey's opinion as indeterminate expert testimony on causation that is based solely on possibility. Id.
In response to this Court's rejection of Dr. Lockey's deposition testimony on the issue of proximate cause in Tolley I, the Tolleys obtained and proffered a new affidavit from Dr. Lockey wherein the following was opined:
It is my opinion within a reasonable
degree of medical probability that the recurrence of Mr. Tolley's asthmatic condition
was a result of his past exposure to isocyanates, past exposure to phthalic anhydride,
and past chronic exposure to irritants which in an atopic individual can increase
the risk for recurrence of asthma due to chronic airway inflammation and resultant
The Tolleys contend that this opinion was sufficient to withstand summary judgment. If Dr. Lockey's affidavit had been properly before the trial court, we might have a basis for resolving this issue differently from the decision in Tolley I. (See footnote 10) However, as is evident from the record, Dr. Lockey's affidavit falls within the definition of an improper sham affidavit.
In the reply of the Appellees to the Tolleys' response to the summary judgment motion, the Appellees objected to the introduction of the affidavit based upon footnote 12 of our decision in Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). In the Williams opinion, Justice Cleckley observed that when a party has given clear answers to unambiguous questions during a deposition or in answers to interrogatories, he does not create a trialworthy issue and defeat a motion for summary judgment by filing an affidavit that clearly is contradictory, where the party does not give a satisfactory explanation of why the testimony has changed. Williams, 194 W. Va. at 60 n.12, 459 S.E.2d at 337 n.12. This Court recently elevated footnote 12 of Williams into a syllabus point of law in Kiser v. Caudill, 215 W. Va. 403, 599 S.E.2d 826 (2004). In Syllabus point 4 of Kiser we held:
To defeat summary judgment, an
affidavit that directly contradicts prior deposition testimony is generally insufficient
to create a genuine issue of fact for trial, unless the contradiction is adequately
explained. To determine whether the witness's explanation for the contradictory
affidavit is adequate, the circuit court should examine: (1) Whether the deposition
afforded the opportunity for direct and cross-examination of the witness; (2)
whether the witness had access to pertinent evidence or information prior to
or at the time of his or her deposition, or whether the affidavit was based upon
newly discovered evidence not known or available at the time of the deposition;
and (3) whether the earlier deposition testimony reflects confusion, lack of
recollection or other legitimate lack of clarity that the affidavit justifiably attempts to explain.
215 W. Va. 403, 599 S.E.2d 826. We explained in Kiser that '[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.' Kiser, 215 W.Va. at 408, 599 S.E.2d at 831 (quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969)). Consequently, the 'sham affidavit' rule precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous deposition testimony of the affiant. Kiser, 215 W. Va. at 409, 599 S.E.2d at 832.
Dr. Lockey's affidavit
is a classic example of a sham affidavit. Consequently, it should not have
been considered by the trial court under Williams, nor with regard
to our subsequent decision in Kiser. (See
footnote 11) In Tolley I this Court specifically
found that Dr. Lockey testified during his deposition that there were three
possible causes for Mr. Tolley's breathing problems: phthalic anhydrides, isocyanates or chronic exposure to unidentified
non-specific irritants. Through a subsequent affidavit Dr. Lockey has contradicted
his deposition testimony by stating affirmatively that Mr. Tolley's breathing
problems were caused by his exposure to isocyanates, phthalic anhydrides,
and chronic exposure to irritants. The Tolleys have offered no explanation
as to the contradiction in Dr. Lockey's deposition testimony and his affidavit. (See
footnote 12) Therefore, Dr. Lockey's affidavit could
not be used to defeat summary judgment for the Appellees, because such affidavit clearly contradict[ed]
[Dr. Lockey's] own deposition testimony and can only be considered to have
been tailored to avoid the consequences of h[is] earlier testimony[.] Phillips
v. Bronx Lebanon Hosp., 701 N.Y.S.2d 403, 405 (2000).
2. Dr. Harrison's affidavit. In response to the renewed motion for summary judgment, the Tolleys submitted the affidavit of Dr. Harrison, a chemist. The Appellees objected to the affidavit stating that Dr. Harrison was an expert witness not disclosed in accordance with the scheduling order entered in this case. Although the trial court found the evidence to be untimely, it was nevertheless considered. However, after considering Dr. Harrison's affidavit, the trial court found that it did not present a factual dispute on the issue of causation. We agree. In his affidavit, Dr. Harrison gave the following opinion:
That based on his personal experience,
knowledge of the literature, and professional experience as a chemist, it is
his opinion that applying heat stress to materials coated with activated polyurethane
and epoxy resin coating products, including but not limited to heat from welding,
produces a range of products of decomposition, including, but not limited to,
components of the paints, and that such products include, in the case of epoxy
resin coating products which use anhydride curing agents, phthalic acid anhydride
and similar anhydrides, and, in the case of activated polyurethane products,
monomers of isocyanates.
The Appellees contend, and we agree, that the affidavit of Dr. Harrison at best establishes that the possibility exists that isocyanates or acid anhydrides could be released during welding or burning activities if certain paints or coatings are used. Dr. Harrison's affidavit did not say that Mr. Tolley was actually exposed to isocyanates or phthalic anhydrides, (See footnote 13) or that such exposure caused Mr. Tolley's breathing problems. (See footnote 14) In other words, Dr. Harrison's affidavit, standing alone, did not have any relevancy on the dispositive issue of proximate cause. Only disputes over facts that might affect the outcome of the suit . . . will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Consequently, we find that the trial court was correct in finding that Dr. Harrison's affidavit did not create a disputed genuine issue of fact on the proximate cause issue. See McHale v. Westcott, 893 F. Supp. 143, 150 (N.D.N.Y. 1995)) ([P]laintiffs . . . must produce some evidence 'sufficient to permit a finding of proximate cause based not upon speculation, but upon the logical inferences to be drawn from the evidence.'(quoting Ellis v. County of Albany, 613 N.Y.S.2d 983, 984-85 (1994))).
(A) That a specific unsafe
working condition existed in the workplace which presented a high degree
of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.
W. Va. Code § 23-4-2(c)(2)(ii).
An expert witness's understanding of a case, and
testimony on a legal opinion, can change with time. An expert witness, who
is unfamiliar with a particular issue in a deposition, can become familiar
with the issue after a deposition by doing additional research or testing.
An expert brings experience to the courtroom, and uses that experience to
assist the jury in understanding the facts. If the expert's experience changes,
resulting in a change in the expert's opinion or other deposition testimony,
then the party offering the expert is entitled to amend the expert's testimony
through use of an affidavit. But that affidavit had also better list some
pretty good reasons for the change in the expert's testimony.
. . . .
. . . [I]f a witness's
deposition testimony is in error, or needs modification, and counsel wishes
to correct or alter that testimony by use of an affidavit, counsel cannot
create a genuine issue of material fact by simply sticking a conclusory statement
in the affidavit that contradicts the deposition testimony. Counsel must
make certain that the witness's affidavit fully accounts for the change in
Kiser, 215 W.Va. at 411-12, 599 S.E.2d at 834-35 (Starcher, J., concurring) (emphasis added).