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SHETTERLY v. SONY ELECTRONICS

September 13, 2005.

SHAWN SHETTERLY, et. al. Plaintiffs,
v.
SONY ELECTRONICS, INC., Defendant.



The opinion of the court was delivered by: JOY FLOWERS CONTI, District Judge

MEMORANDUM OPINION

The issue submitted to the court in the two motions for summary judgment filed by defendant Sony Electronics, Inc. ("defendant" or "Sony") is whether plaintiffs Shawn Shetterly ("Shetterly")*fn1 and Arlyn Buss ("Buss")*fn2 (collectively "plaintiffs") presented sufficient evidence to create a genuine issue of material fact with respect to whether their fraudulent misrepresentation claims come within an exception to the exclusivity provision of the Pennsylvania Workmen's Compensation Act, 77 P.S. § 481(a).*fn3 Plaintiffs contend that their claims are actionable under the narrow exception to the exclusivity provision set forth in Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992). For the reasons set forth below, the court will grant defendant's motion for summary judgment with respect to the claims of Buss and his wife, Judith B. Fleehr, and deny defendant's motion with respect to the claims of Shetterly and his wife, Bobbie Jo Shetterly.

Background

  I. Plaintiffs' exposure to lead oxide

  Defendant, a Delaware corporation with its principal place of business in Park Ridge, New Jersey, manufactures televisions at its plant in Mount Pleasant, Pennsylvania (the "plant"). In or around May 1999, defendant unveiled a new glass processing operation at the plant. Jt. Stip. of Material Facts ("J.S.") (Doc. No. 126) ¶ 1. The new operation utilizes a Panel Funnel ("PF") Seal Machine, an automated machine that uses high voltage and heat to seal together three pieces of glass (a neck, a panel, and a funnel) into 7 inch "bulbs." Id. ¶¶ 1-2. These three glass pieces work in tandem to create the image that is reflected off of a mirror inside the television and onto the television screen. Pl.'s App. (Doc. No. 112) Ex. A at 21. Defendant was aware that the glass pieces contained lead, as lead is an element that protects television consumers from the emission of otherwise-harmful x-rays. Def.'s App. (Doc. No. 99) Ex. A at 11. Furthermore, defendant was aware that lead oxide was created as a by-product of the PF seal process. J.S. ¶ 3. In July 1999, Sony began pilot production using the PF Seal Machine; in September 1999, full production began. Id. ¶ 8. Shetterly transferred to the new glass processing unit as a glass technician in May 1999, and Buss began working in the glass processing area in September 1999. Id. ¶¶ 8-9. Plaintiffs were primarily responsible for monitoring the automated equipment, cleaning and maintaining the equipment, and troubleshooting in the event problems arose. Id. ¶ 10.

  Plaintiffs contend that Sony was aware of the existence of unhealthy lead levels in the processing area prior to receiving elevated blood lead level test results from several technicians in February-March 2000, yet concealed such information from plaintiffs because of production problems. See e.g. Pl.'s App. Ex. C at 100; Ex. D at 123. Sony engineer/technician Vince Stabley stated that he observed a powdery substance attached to the burner stations and the stainless steel back plates for the head rotation assembly in the PF Seal assembly area as early as June 1999. Pl.'s App. Ex. B at 22-23. Stabley further stated that there were numerous discussions between engineers and technicians in the plant regarding the existence of the lead powder in June 1999. Id. at 23-24.*fn4 Lead powder manifested itself as a "grayish, white-yellowish powder" caked on the PF Seal Machine, as well as in the form of an orange-colored residue inside the bulbs. Pl.'s App. Ex. D 171-72. Each of the technicians in the glass processing area noticed the residue and asked either Stabley or Sony Health and Safety Administrator Stephen Ramer about it.*fn5 Although Stabley contends that technician Wilbert Roth was aware the residue on the machine was lead oxide in June 1999, Roth stated that he was unaware it was lead oxide because the residue on the PF Seal Machine looked completely different from the substance he previously encountered on the Automatic Gun Seal ("AGS") machine. Pl.'s Dep. Ex. C at 212, 215.*fn6 Furthermore, Roth stated that when he asked Stabley about the residue in the summer of 1999, Stabley told Roth that he was unsure as to what the residue was on the machine. Id. at 212. Roth and technician Martin Switzer were later told that the powder was "oxide," but not that it was "lead oxide." Pl.'s App. Ex. G at 116-17; Pl.'s App. Ex. C 120-21. Buss asked Ramer about the substance in October 1999, and was told "don't worry about it, it won't hurt you." Pl.'s App. Ex. E at 72-73.

  At around the same time the technicians were asking questions about the nature of the residue on the machine and on the bulbs, several technicians were also making complaints about health symptoms they were experiencing while working in the glass processing area. Switzer told Ramer and Stabley that he was experiencing muscle cramps, nausea, and a metallic taste in his mouth. Pl.'s App. Ex. G at 60-61, 114-15; Pl.'s Supp. Aff. ¶ 5 (Doc. No. 127) Shetterly also told Ramer that he was experiencing nausea, leg cramps, cramps, and a metallic taste in his mouth. Pl.'s App. Ex. D at 14-15; Pl.'s Supp. Aff. ¶¶ 6-9.*fn7 Buss reported having headaches, [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] muscle cramps, nausea, and a metallic taste in his mouth. Pl.'s App. Ex. E at 82-83; Pl.'s Supp. Aff. ¶¶ 4-5. When Shetterly told Ramer about his conditions in September 1999, Ramer told him he was experiencing his conditions because he was not yet acclimated to the heat in the processing area. Pl.'s App. Ex. D at 14-15.*fn8 Following complaints from Buss about headaches and muscles cramps, Sony provided the technicians with "Squencher" drinks upon Buss's request ostensibly to combat the effects of the heat in the processing area. Pl.'s App. Ex. E at 82. Although Buss's headaches dissipated after he began drinking the "Squencher" drinks, his muscle cramps remained. Id.

  The technicians cleaned the PF Seal Machine either by using a compressed air hose that produced a dust cloud, or by using a Shop-Vac vacuum cleaner with a funnel. Pl.'s App. Ex. D at 165-168; Pl.'s App. Ex. E at 90-91. Although there were exhaust hoods in the processing area, the hoods were not connected to an active exhaust system until after the positive blood lead level test results came back in March 2000. Pl.'s Ex. I at 25. Each of technicians complained to either Ramer or Sony Glass Technician Taichi Tamura about the dust conditions in the processing area. Pl.'s Ex. C at 220-21; Pl.'s App. Ex. D at 170-71; 232-34; Pl.'s Ex. E at 90-91; Pl.'s Ex. G at 49-50. In response, the technicians were told to use dust masks and to vacuum the area frequently using a funnel that Ramer designed. The cleaning measures used in the processing area, however, were insufficient to prevent a build-up of lead oxide on the PF Seal Machine. As a result, the machine did not work properly causing approximately 80% of the bulbs produced by the machine to break. Pl.'s App. Ex. D at 155. In order to correct this problem, Sony instructed the technicians to clean the machine with the D-lead cleaning product. Id. It was at this time that the technicians first realized that the residue on the machine was lead. Id; Pl.'s App. Ex. C at 173; 211-15. Even after this point, Ramer reassured the technicians in the processing area that there was an insufficient amount of lead to harm them. Pl.'s App. Ex. D at 162. Ramer did check with the environmental department to determine where the technicians could clean the lead oxide from the hoods on the PF Seal Machine, and to determine whether the lead could be washed down the drain. Pl.'s App. Ex. P at 73.

  On February 24, 2000, the Sony medical department inadvertently took a blood lead level draw from Roth in connection with his annual physical examination. J.S. ¶ 13. Prior to February 24, 2000, Sony did not take blood lead levels of any of the glass technicians in the new glass processing area. Id. ¶ 18. Sony also did not take any air samples in the new area to test the amount of lead oxide in the air. Id. ¶ 19; Def.'s App. Ex. D at 57.*fn9 Ramer stated that Sony did not initially monitor the air in the PF seal area because although "there was the ability to liberate lead from sealing, . . . the information available never indicated that it could be at a quantity during liberation that would be considered hazardous or close to hazardous. It was an accumulation condition." Def.'s App. Ex. D at 57.*fn10 Roth's blood lead level measured 44μg/100g-4μg/100g above the threshold limit set by OSHA 40μg/100g. Id. Following a second test on February 28, 2000, Roth's blood lead level measured 45μg/100g. After this second elevated measurement, Sony arranged to test the blood lead levels of the remaining three technicians in the area, including Buss and Shetterly. Id. ¶ 14.*fn11 Shetterly's test revealed a blood lead level of 49μg/100g, and Buss had a blood lead level of 34μg/100g. Id. ¶¶ 15-16.

  Following the positive test results in March 2000, the glass processing area was shut down for approximately one month. J.S. ¶ 21. During this time period, Sony instituted a medical surveillance program in accordance with OSHA regulations. See 29 C.F.R. § 1910.1025(j). Sony also contends that it "implemented a rigorous testing protocol to monitor the lead levels and determine the effectiveness of remediation." J.S. ¶ 21. Sony took personal air samples of the technicians, notified the technicians of the results, and continued to monitor blood lead levels of the technicians in the glass processing area. Id. On April 1, 2000, Sony restarted the glass processing unit. Id. ¶ 22. Shetterly's blood lead level rose to a high of 82.5μg/100g on April 3, 2000, and remained above 40 μg/100g throughout the course of April 2000. Barceloux Ex. Rep. of Shetterly Table 1.*fn12 Shetterly was prescribed chelation therapy between April 24, 2000 — May 12, 2000. Id. On April 28, 2000, Shetterly's blood lead level dropped to 22μg/100g. Id. Shetterly's blood lead level remained below 40μg/100g (with a high measured at 23.3μg/100g on December 17, 2000) until March 5, 2001, when it was measured at 54.3μg/100g. Id. After a measurement of 47μg/100g on March 12, 2001, Shetterly's physician again placed him on chelation therapy. Id.*fn13 After this second round of chelation, Shetterly's blood lead level did not measure over 10μg/100g through July 9, 2003. Id. In comparison, Buss's blood lead level rose slightly to 35.4μg/100g on March 10, 2000. Barceloux Ex. Rep. of Buss Table 1. Following that measurement, Buss' blood lead level did not exceed 27μg/100g through July 29, 2003. Unlike Shetterly, Buss was never prescribed chelation therapy by his physician.

  Standard of Review

  Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing WRIGHT AND MILLER, FEDERAL PRACTICE § 2721); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1956), cert.denied, 355 U.S. 964 (1956) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence.") (emphasis added). Analysis

  I. The exclusivity provision of the Pennsylvania Workmen's Compensation Act

  The statutory scheme set forth in the Pennsylvania Workmen's Compensation Act (the "Act") provides that workers' compensation benefits shall be the exclusive remedy for all injuries suffered by employees in the workplace. Section 303 of the Act, which contains what commonly is referred to as the Act's "exclusivity provision," provides in relevant part as follows:
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next ...

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