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Adams v. American Optical Corp.

United States District Court, W.D. Virginia, Big Stone Gap Division

May 28, 2019

GARY ADAMS, Plaintiff,
v.
AMERICAN OPTICAL CORPORATION, ET AL., Defendants.

          James P. Jones United States District Judge Michael B. Martin, Martin Walton Law Firm, Houston, Texas, for Plaintiff.

          Carol Dan Browning, Stites & Harbison PLLC, Louisville, Kentucky, for Defendant American Optical Corporation.

          M. Trent Spurlock, Dinsmore & Shohl LLP, Louisville, Kentucky, for Defendant Mine Safety Appliances Company, LLC.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         In this diversity action, plaintiff Gary Adams, a former coal miner, alleges that he developed pneumoconiosis and silica-induced airway obstruction after wearing faulty respirators manufactured, designed, and sold by defendants American Optical Corporation and Mine Safety Appliances Company. The defendants have moved for summary judgment, arguing that the plaintiff's claims are barred by Virginia's two-year statute of limitations for personal injury actions. For the reasons that follow, I will grant the defendants' Motions for Summary Judgment.

         I.

         The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the plaintiff as the nonmoving party.

         From 1981 to 2014, plaintiff Gary Adams worked as a coal miner. During this time, he worked for various coal mining companies as a roof drill helper, mine helper and operator, electrician helper, roof bolter operator, section foreman, and mine foreman. He worked underground and was exposed to silica, coal dust, and other dust during the course of his employment. To protect his lungs, he wore respirators manufactured, designed, marketed, and sold by defendants American Optical Corporation (“American Optical”) and Mine Safety Appliances Company (“MSA”).

         Beginning in 1991, Adams regularly participated in a National Institute of Occupational Safety and Health (“NIOSH”) program that offered free X rays to miners at mining sites. After an X ray in April 2000, Adams received three letters dated June 2000. One of the letters, from NIOSH, informed him that NIOSH would report to him “any significant findings other than pneumoconiosis” and that a physician who reviewed his X ray found possible evidence of granulomas. Def. MSA's Mot. Summ. J. Ex. B, Adams Dep. Ex. 6, ECF No. 76-2. The second letter, also from NIOSH, informed him that physicians found “Category 1, simple coal workers' pneumoconiosis.” Id. at Adams Dep. Ex. 8, ECF No. 76-2. The third letter was from the Mine Safety and Health Administration (“MSHA”), and stated that Adams' X ray showed that he “HA[D] ENOUGH COAL WORKERS' PNEUMOCONIOSIS (“BLACK LUNG”) TO BE ELIGIBLE FOR THE ‘OPTION TO WORK IN A LOW DUST AREA' OF A MINE.” Id. at Adams Dep. Ex. 4, ECF No. 76-2.[1]

         In September 2006, Adams received another letter from MSHA informing him that a NIOSH X ray taken in June 2006 showed that he “HA[D] ENOUGH COAL WORKERS' PNEUMOCONIOSIS” to be eligible to work in a low-dust area. Id. at Adams Dep. Ex. 7, ECF No. 76-2. Adams also received a letter from NIOSH in September 2006 regarding this X ray, which stated that it “shows DEFINITE EVIDENCE of CATEGORY 1 PNEUMOCONIOSIS.” American Optical's Mot. Summ. J. Ex. 6, Sept. 14, 2006, NIOSH Letter 2, ECF No. 75-6.

         In August 2007, due to this letter or a similar one from NIOSH, Adams began seeing pulmonologist Dr. Mahmood Alam to have his lung condition evaluated. Dr. Alam's notes from this visit state that Adams had underlying coal workers' pneumoconiosis (“CWP”), cough, and shortness of breath. During the visit, Dr. Alam performed a pulmonary workup on Adams, which included lung capacity testing, called spirometry, and a computerized tomography (“CT”) scan of his chest. Dr. Alam's interpretation of the spirometry was mild breathing restriction, and he recommended that Adams stop working in the mines or work in a less dusty environment. In his deposition in this case, Dr. Alam testified that he believes the breathing restriction was related to occupational lung disease. However, he also testified that spirometry alone cannot provide a diagnosis, and its results must be correlated with X rays and CT scans to determine how they relate to changes in the lungs.

         At a follow-up visit in September 2007, Dr. Alam told Adams that his CT scan was negative for CWP but there were calcified granulomas in his lungs. Dr. Alam's notes from this follow-up visit state that Adams has a history of CWP and chronic bronchitis. At his deposition, Dr. Alam testified that it was reasonably probable that the chronic bronchitis was caused by exposure to coal dust.[2]

         In June 2009, Adams again received a letter from MSHA notifying him that an X ray taken in April 2009 showed enough CWP to make him eligible to work in a low-dust area. After receiving this letter, Adams opted to exercise his Part 90 option because he was getting more winded than he had been in the past. He also made another appointment with Dr. Alam. Dr. Alam performed another CT scan, which showed that Adams still had calcified granulomas but was negative for CWP. Dr. Alam's notes from this visit list chronic obstructive pulmonary disease (“COPD”), emphysema, and CWP as his assessment, or differential diagnosis, of the potential causes of Adams' abnormal X rays. In his deposition, Dr. Alam testified that all of these diseases are caused by occupational exposure to dust. Dr. Alam also testified that CT scans are more sensitive and accurate than X rays, and X rays cannot be used to make diagnoses without being clinically correlated by looking to the patient's history, a CT scan, or tissue diagnosis, among other things.[3] Thus, he stated that Adams' NIOSH X rays suggested abnormalities in his lungs but could not be used to diagnose CWP by themselves. However, Dr. Alam also testified that X rays may be used to make a differential diagnosis, that is, a list of possible diagnoses. He also explained that his notes from Adams' 2007 and 2009 visits meant that since Adams had been a coal miner for over 20 years, was a nonsmoker, and had shortness of breath, CWP was part of his differential diagnosis.

         When asked about the letters that Adams received from NIOSH and MSHA, Dr. Alam testified that they represented a finding by NIOSH's X ray readers of simple clinical pneumoconiosis, or stage one pneumoconiosis, which manifests as scarring on the lungs, and he had no reason to doubt the accuracy of that finding. He also characterized the letters as finding entry-level pneumoconiosis. Dr. Alam explained that the NIOSH X ray readings on which these letters were based assigned Adams a perfusion rating of 1/0, which indicates minimal perfusion, or nodules on the lungs.[4] He also expressed that a 1/0 rating was very common for coal miners, and miners almost always had some coal dust on their lungs. He explained that although the X rays upon which the letters were based suggested stage one pneumoconiosis, the more accurate CT scans that he performed were negative for CWP, and thus there was no clinical correlation to support the suggestion from the X rays.

         Dr. Alam also testified that calcified granulomas, which appeared on Adams' 2007 and 2009 CT scans, are small scars on the lungs that could represent any number of health problems, including fungal infections in the lungs, a history of smoking, or pneumonia. He testified that CWP does not cause calcified granulomas. However, Dr. Alam also agreed that there was a reasonable medical probability “as of 2007 or 2009 that Mr. Adams had some degree of CWP scarring in his lungs.” Def. MSA's Mot. Summ. J. Ex. C, Alam Dep. 208:4-13, ECF No. 76-3.

         In 2009 and 2010, Adams had office visits with Dr. April Hall, his primary care physician and a colleague of Dr. Alam. In her records, Dr. Hall noted that Adams had a history of CWP. In Dr. Alam's deposition, he testified that this mention of CWP was in Adams' records from day one, likely because it had always been part of his differential diagnosis. Adams confirmed this ...


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