United States District Court, Western District of Pennsylvania
REPORT AND RECOMMENDATION
ROBERT C. MITCHELL United States Magistrate Judge
It is respectfully recommended that the motion for summary judgment filed on behalf of the defendants (ECF No. 21) be denied.
Plaintiff, Scott Williams, brings this toxic tort, personal injury action against Defendants, Owens-Illinois, Inc. and its wholly-owned subsidiary, Owens Brockway Glass Container, Inc., (OBGC), alleging that he was injured when he was exposed to monobutyltin trichloride (“MBTC”) while he was working at OBGC’s glass bottle facility in Toano, Virginia during the period January to February 2009. He raises claims of negligence and premises liability.
Presently pending before the Court is a motion for summary judgment, filed by the Defendants. They contend that Plaintiff is collaterally estopped from raising his claims in this case because he raised and lost the same claims in a workers’ compensation claim against his employer, E.W. Bowman. For the reasons that follow, Defendants’ motion should be denied.
MBTC is an organotin compound. (WC Decision Finding of Fact #1.) Plaintiff alleges that, while he was working for E.W. Bowman in January and February 2009 performing lehr furnace repair and maintenance at OBGC’s glass bottling plant in Toano, Virginia, he was exposed to MBTC through inhalation and dermal absorption, which caused him to develop neurogenic bladder, gastritis, pancreatitis and dermatitis. (Am. Compl. ¶¶ 5, 8, 12, 19.)
Plaintiff filed a workers’ compensation (“WC”) claim against his employer arising out of the alleged MBTC exposure. He also filed another claim that he sustained a cervical injury during the course of his employment on February 12, 2009 and the two claims were consolidated for purposes of hearing and disposition. (WC Decision Findings of Fact #3, 5; D. Williams Decl. ¶ 4.) He presented both lay and expert testimony and evidence seeking to establish that he was exposed to MBTC and that the exposure had caused him injury. (WC Decision Findings of Fact #6, 7, 9, 10, 11, 13.)
In a decision rendered on November 30, 2011, Workers’ Compensation Judge Anne Coholan (“WCJ Coholan”) concluded that Plaintiff “has failed to establish that he had toxic chemical exposure while he worked at the Toano, Virginia plant in January and February, 2009. I further find that [he] has failed to establish that he has sustained any injuries due to any chemical exposure he may have had at the Toano, Virginia plant in January and February, 2009.” (WC Decision Finding of Fact #13; see also WC Decision Conclusion of Law #3.) Specifically, WCJ Coholan found that:
the claimant has not been able to personally identify any specific chemicals or substances to which he was exposed at the Toano, Virginia plant in January or February, 2009. In addition, even though the claimant and [field service representative Robert] Holmes have verified that there were some discussions that suggested that [MBTC] may have been present at the plant, neither the claimant nor Mr. Holmes were able to verify whether that was true or not. In addition, all of the testimony that the claimant and Mr. Holmes have provided about the possible presence of [MBTC] at the plant has been based on hearsay statements.
Furthermore, even though the claimant is relying upon the opinions of Dr. Alan Ducatman concerning his toxic exposure claim, Dr. Ducatman has not been able to confirm that the claimant had organotin exposure at the Toano, Virginia plant. In addition, even though Dr. Ducatman has indicated that the claimant provided him with history information indicating that the claimant thought he had chemical exposure, the claimant has not demonstrated himself to be a particularly reliable historian in this matter with respect to dates or details. As such, I find that any history information the claimant may have provided to Dr. Ducatman about possible chemical exposures that he had, may not have been accurate. Furthermore, even though Dr. Ducatman has made reference to hair tests and testing that was performed upon the claimant’s clothing, for purposes of concluding that the claimant had had some chemical exposure at the Toano, Virginia plant, I find that Dr. Ducatman’s opinions, based upon such tests results, are not credible or convincing because it is not clear when the hair testing or clothing testing was performed. Also, there is no indication in the record as to how the hair samples or clothing samples were obtained or how they were preserved prior to the testing. In addition, there is no clear evidence of record that establishes who performed the testing or how the testing was performed. Also, it is not clear from Dr. Ducatman’s testimony whether he actually reviewed the results from the testing itself, or if he relied upon what the claimant told him about the test results. As such, there are too many unknown variables pertaining to the hair testing and clothing testing for Dr. Ducatman to have credibly relied upon those test results for purposes of concluding that the claimant had chemical exposure at the Toano, Virginia plant.
Also, quite significantly, Dr. Donald McGraw, who prepared an extremely thorough 25-page report in this matter, has concluded that the claimant did not sustain any type of clinical condition as a result of a toxic workplace exposure. Accordingly, Dr. McGraw’s opinions are ...