                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Tina Marie Leffingwell, in her own capacity,
and as Personal Representative of the Estate                                        FILED
of Robert E. Leffingwell, deceased,                                             October 16, 2015
Plaintiff Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 14-1061 (Cabell County 11-C-446)

SWVA, Inc., a Subsidiary of Steel of West Virginia, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Tina Marie Leffingwell, in her own capacity, and as Personal Representative of
the Estate of Robert E. Leffingwell, deceased, by counsel John H. Skaggs and Omar D. Ahmad,
appeals the Circuit Court of Cabell County’s “Judgment Order” entered on September 5, 2014,
granting summary judgment in favor of respondent. Respondent SWVA, Inc., a Subsidiary of
Steel of West Virginia, Inc. (“SWVA”), by counsel Thomas E. Scarr, filed a response. Petitioner
filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                              Facts and Procedural Background

    This appeal arises from the dismissal of petitioner’s deliberate intent suit1 filed against
SWVA, her deceased husband’s former employer. Petitioner’s husband, Robert E. Leffingwell,


       1
        Under our deliberate intent statute, in order for an employer to lose its workers
compensation immunity, the plaintiff must establish the following five elements:

       (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, prior to the injury, had actual knowledge of the existence
       of the specific unsafe working condition and of the high degree of risk and the
(continued . . .)
                                                1

was diagnosed with lung cancer in March of 2008 and died on June 26, 2009. For a six-year
period during his employment with SWVA, Mr. Leffingwell worked in the “cut to length”
department, where he spent on average between forty-five and sixty minutes per shift polishing,
sanding, and/or grinding carbon steel bars in order to bring them within the customer’s desired
specifications. Mr. Leffingwell spent the remainder of his shift inspecting, measuring, and
gauging steel bars, and unbundling and re-bundling steel bars as they were transported
throughout the plant. In her suit, petitioner claimed that her husband’s cancer and death were
caused by his exposure to Hexavalent Chromium, a carcinogen.

         Chromium, as distinguished from Hexavalent Chromium, is a natural element that can
exist in various states, including elemental chromium and Trivalent Chromium, neither of which
is considered to be hazardous or carcinogenic. SWVA states that, according to the United States
Occupational Health and Safety Administration (“OSHA”), “[c]hrome dust that comes off
products that are polished or grinded is actually elemental chromium, not Hexavalent Chromium,
so polishing and grinding contributes little to airborne Hexavalent Chromium levels.”2


       strong probability of serious injury or death presented by the specific unsafe
       working condition;

       (C) That the 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 the employer,
       as demonstrated by competent evidence of written standards or guidelines which
       reflect a consensus safety standard in the industry or business, 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), inclusive, of this paragraph, the employer nevertheless intentionally
       thereafter exposed an employee to the specific unsafe working condition; and

       (E) That the employee exposed suffered serious compensable injury or
       compensable death as defined in section one [§ 23-4-1], article four, chapter
       twenty-three whether a claim for benefits under this chapter is filed or not as a
       direct and proximate result of the specific unsafe working condition.

W.Va. Code § 23-4-2(d)(2)(ii)(A) through (E).
       2
          We note that SWVA’s reliance on OSHA’s statement is the target of petitioner’s fifth
assignment of error in the present appeal. The statement relied upon by SWVA was part of a
stipulation (referred to in this case as “OSHA Appendix A”) in the settlement of an unrelated
case between OSHA and the Surface Finishing Industry Council, and to which SWVA was not a
party. Petitioner takes issue with SWVA’s reliance on OSHA Appendix A, arguing that SWVA
is reaping the benefits of a settlement to which it was not a party and should be estopped from
(continued . . .)
                                                2

Furthermore, according to record, while overexposure to Hexavalent Chromium can cause lung
cancer, overexposure is quite rare as the formation of Hexavalent Chromium from the more
stable elemental and trivalent states requires extreme environmental conditions -- temperatures in
excess of three-thousand degrees Fahrenheit -- that did not exist at SWVA.

        In granting summary judgment in favor of SWVA, the circuit court found that petitioner
failed to establish that any of the products processed in Mr. Leffingwell’s department contained
Hexavalent Chromium or that the polishing, sanding, or grinding of carbon steel can convert
elemental chromium into Hexavalent Chromium. The circuit court further found that Mr.
Leffingwell was a regular smoker who died due to a type of lung cancer admitted by petitioner’s
expert to be caused by smoking.3 Ultimately, the circuit court found that the conditions in which
Mr. Leffingwell worked did not create, release, or produce Hexavalent Chromium, but even
assuming arguendo that such conditions did exist, petitioner presented no evidence that the
amount of Hexavalent Chromium to which Mr. Leffingwell was allegedly exposed was large
enough to be unsafe. Accordingly, in the context of petitioner’s deliberate intent suit, the circuit
court found “no genuine issue as to any material fact with respect to any one of the elements
which is necessary and must be established for [petitioner] to withstand a motion for summary
judgment[.]” Petitioner now appeals to this Court.

                                            Discussion

         Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is
proper when the record demonstrates “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.” W.Va.R.Civ.P. 56(c), in part.
“Summary judgment is appropriate if, from the totality of the evidence presented, the record
could not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the case that
it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d
329 (1995). With respect to deliberate intent claims, this Court has held that

       a court shall dismiss a deliberate intention action “upon motion for summary
       judgment if it finds . . . that one or more of the facts required to be proved by the
       provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this
       subdivision do not exist.” W.Va. Code § 23-4-2(d)(iii)(B). Each of the five
       statutory factors “is an essential element of a ‘deliberate intention’ cause of
       action, which a plaintiff has the ultimate burden to prove. Therefore, at the


referencing the document. We disagree. SWVA offered OSHA Appendix A, not to obtain some
legal benefit to which it was not entitled, but rather to factually and scientifically establish that
grinding steel produces elemental chromium, not Hexavalent Chromium.
       3
         According to the findings of the circuit court, Mr. Leffingwell’s lung cancer was a non-
small cell adenocarcinoma, “which is the most common histologic type of lung cancer, and its
most common cause is exposure to tobacco smoke, accounting for 40% of all lung cancers
diagnosed.”


                                                 3

       summary judgment stage, if a defendant should establish that no material issue of
       fact is in dispute on any one of the factors, and such a finding is in favor of the
       defendant, summary judgment must be granted to the defendant.” Mumaw v. U.S.
       Silica Co., 204 W.Va. 6, 11, 511 S.E.2d 117, 122 (1998). Finally, “‘in order to
       withstand a motion for summary judgment, a plaintiff must make a prima facie
       showing of dispute on each of the five factors.’” Marcus v. Holley, 217 W.Va.
       508, 520, 618 S.E.2d 517, 529 (2005) (citation omitted) (footnote omitted).

Smith v. Apex Pipeline Services, Inc., 230 W.Va. 620, 628, 741 S.E.2d 845, 853 (2013). “A
circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994).

        On appeal, petitioner raises five assignments of error, the first of which challenges the
circuit court’s finding that petitioner failed to establish actual exposure to an unsafe working
condition, namely, Hexavalent Chromium.4 Upon our review of the record, we reject petitioner’s
first assignment of error. We agree with the circuit court that petitioner failed to establish a
genuine issue of material fact with respect to West Virginia Code § 23-4-2(d)(2)(ii)(A), the first
element of the deliberate intent statute requiring petitioner to show “[t]hat 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[.]” The record reinforces the circuit court’s finding that

       [petitioner] has presented no evidence that, while employed at SWVA’s
       Huntington facility, Mr. Leffingwell was actually exposed to Hexavalent
       Chromium, let alone exposed to hazardous levels. At most, even with the
       supporting testimony of her causation and liability experts, [petitioner] has only
       argued that Mr. Leffingwell had the “potential” or “opportunity” for such
       exposure.

Additionally, the record supports the circuit court’s finding that

       4
         Petitioner’s assignments of error all focus to a large extent on SWVA’s Material Safety
Data Sheet (“MSDS”), which referred to chromium and exposure limits in a general sense,
without drawing the distinction between elemental chromium and Hexavalent Chromium.
Petitioner makes similar arguments in support of each of her assignments of error as to how the
MSDS creates an issue of fact as to all five deliberate intent elements. Despite the fact that the
objective science supports the distinction between the potential harms caused by exposure to
elemental chromium versus Hexavalent Chromium, petitioner argues that, because SWVA did
not draw such a distinction in the MSDS, SWVA and the circuit court were foreclosed from
drawing such a distinction below. As SWVA argues, the MSDS is broad in scope and does not
specifically pertain to chromium, let alone Hexavalent Chromium. Second, the MSDS contains
no causal links between any of the hazardous materials identified and any form of cancer.
Importantly, the MSDS does not indicate that grinding carbon steel can create the extreme
conditions necessary to form Hexavalent Chromium. In Tolley v. ACF Industries, 212 W.Va.
548, 575 S.E.2d 158 (2002), this Court rejected the argument that causation is established by
reference to the general warnings contained in a safety data sheet.


                                                  4

       none of Mr. Leffingwell’s medical records indicate that his lung cancer was
       caused or contributed to by workplace exposure to any substance or chemical. Mr.
       Leffingwell did not file a workers’ compensation claim because neither he nor his
       treating physician believed his condition to be related to a workplace exposure. In
       fact, both Mr. Leffingwell and his treating physician indicated that his lung cancer
       was not work-related in statements submitted for Mr. Leffingwell’s Long-Term
       Disability Claim.

        In the present case, petitioner did not meet her burden to designate specific facts showing
a genuine issue of material fact that Mr. Leffingwell was actually exposed to Hexavalent
Chromium, the alleged unsafe working condition. W.Va. Code § 23-4-2(d)(2)(ii)(A).
Accordingly, summary judgment in favor of SWVA was proper. Because we find that petitioner
failed to establish actual exposure to an unsafe working condition, we need not address
petitioner’s remaining assignments of error.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 16, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis




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