United States District Court, W.D. Virginia, Big Stone Gap Division
P. Jones United States District Judge Michael B. Martin,
Martin Walton Law Firm, Houston, Texas, for Plaintiff.
Dan Browning, Stites & Harbison PLLC, Louisville,
Kentucky, for Defendant American Optical Corporation.
Trent Spurlock, Dinsmore & Shohl LLP, Louisville,
Kentucky, for Defendant Mine Safety Appliances Company, LLC.
OPINION AND ORDER
P. Jones United States District Judge.
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.
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.
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”).
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.
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.
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.
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.
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. 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.
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. 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.
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.
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 ...