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Stanley v. Ameren Illinois Co.

United States District Court, N.D. Illinois, Eastern Division

October 22, 2013

CHRISTINE STANLEY, individually and as personal representative of the estate of PETER STANLEY, Plaintiffs,
v.
AMEREN ILLINOIS CO., MIDAMERICAN ENERGY CO., SARGENT & LUNDY LLC, and EECI SERVICES INC., Defendants

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For Christine Stanley, individually and as Personal Representative of the Estate of Peter Stanley, Plaintiff: Glenn S. Draper, LEAD ATTORNEY, Vanessa Firnhaber-oslund, Bergman Draper Ladenburg, Seattle, WA; Jackson Schmidt, Jeffrey M Odom, Pepple Cantu Schmidt PLLC, Seattle, WA.

For Ameren Illinois Company, an Illinois Corporation, as successor-in-interest to Central Illinois Public Service Company (CIPSCO), Defendant: Jeffrey Hebrank, LEAD ATTORNEY, Helper Broom, Edwardsville, IL; Michael Thomas Antikainen, LEAD ATTORNEY, HeplerBroom, LLC, Chicago, IL; Patrick Wayne Stufflebeam, LEAD ATTORNEY, Heplerbroom Llc, Edwardsville, IL; Thomas Patrick Briddick, PRO HAC VICE, Hepler Broom, Edwardsville, IL.

For Midamerican Energy Company, an Iowa Corporation, as successor-in-interest to Iowa Power and Light Company and Iowa Public Service, Defendant: Jason Lorne Kennedy, LEAD ATTORNEY, Segal, McCambridge, Singer & Mahoney, Ltd., Chicago, IL; Adam J Jagadich, Jill Marie Felkins, Segal, McCambridge, Singer & Mahoney, Chicago, IL; Brian M Nye, Segal Mccambridge Singer Mahoney, Ltd., Chicago, IL; Mark Coad Sampson, Jr., Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL.

For Sargent & Lundy, LLC, an Illinois Corporation, Defendant, Counter Defendant, Cross Defendant: Derek J. Meyer, LEAD ATTORNEY, Aron J Frakes, Brian Alexander Fogerty, McDermott, Will & Emery LLP (Chicago), Chicago, IL.

For EECI Services, Inc., as successor-in-interest to Electronic Bond and Share Company (EBASCO), Defendant: Earl B. Thames, Jr., LEAD ATTORNEY, Tracy Jonathan Cowan, Hawkins Parnell Thackston & Young Llp, St. Louis, MO; Christa D Hykaway, PRO HAC VICE, Hawkins Parnell Thackston & Young Llp, Dallas, TX; Eric Todd Hawkins, PRO HAC VICE, Hawkins Parnell Thackston Young, Atlanta, GA; Jason James Irvin, PRO HAC VICE, Hawkins Parnell Thackston & Young, Dallas, TX; Paul Saxon Guerriere, PRO HAC VICE, Hawkins Parnell Thackston Young, Dallas, TX.

For Ameren Illinois Company, an Illinois Corporation, as successor-in-interest to Central Illinois Public Service Company (CIPSCO), Counter Defendant, Cross Defendant: Michael Thomas Antikainen, LEAD ATTORNEY, HeplerBroom, LLC, Chicago, IL.

For Midamerican Energy Company, an Iowa Corporation, as successor-in-interest to Iowa Power and Light Company and Iowa Public Service, Counter Defendant, Cross Defendant: Adam J Jagadich, Jill Marie Felkins, Segal, McCambridge, Singer & Mahoney, Chicago, IL; Mark Coad Sampson, Jr., Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL.

For Midamerican Energy Company, an Iowa Corporation, as successor-in-interest to Iowa Power and Light Company and Iowa Public Service, Cross Defendant: Jason Lorne Kennedy, LEAD ATTORNEY, Segal, McCambridge, Singer & Mahoney, Ltd., Chicago, IL; Jill Marie Felkins, Segal, McCambridge, Singer & Mahoney, Chicago, IL; Mark Coad Sampson, Jr., Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL.

For Ameren Illinois Company, an Illinois Corporation, as successor-in-interest to Central Illinois Public Service Company (CIPSCO), Cross Defendant: Michael Thomas Antikainen, LEAD ATTORNEY, HeplerBroom, LLC, Chicago, IL; Thomas Patrick Briddick, PRO HAC VICE, Hepler Broom, Edwardsville, IL.

For EECI Services, Inc., as successor-in-interest to Electronic Bond and Share Company (EBASCO), Cross Defendant: Christa D Hykaway, PRO HAC VICE, Hawkins Parnell Thackston & Young Llp, Dallas, TX.

For EECI Services, Inc., as successor-in-interest to Electronic Bond and Share Company (EBASCO), Cross Defendant: Earl B. Thames, Jr., LEAD ATTORNEY, Tracy Jonathan Cowan, Hawkins Parnell Thackston & Young Llp, St. Louis, MO.

OPINION

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MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge.

Peter Stanley, a boiler engineer who worked at a number of Midwestern power plants throughout the 1960s, died of mesothelioma on March 9, 2013. This lawsuit, which he filed with his wife after his diagnosis but before his death, seeks damages in negligence [1] for his exposure to asbestos dust and fibers while on the job. Two of the remaining defendants--Ameren and MidAmerican--currently own power plants at which Peter Stanley claims he was exposed; a third, EECI, was the general contractor during the construction of one of MidAmerican's plants; the fourth, Sargent & Lundy, designed two of the plants. These four defendants all move for summary judgment. As explained in the following opinion, the Court grants summary judgment in favor of all four defendants.

FACTS

Peter Stanley was a boiler startup engineer, or boiler field engineer, employed from 1961 to 1967 by Babcock & Wilcox in its Chicago District, which comprises all or part of several Midwestern states. During that time period, Stanley worked commissioning various types of boilers on-site at many power plants. In May 2012, Stanley was diagnosed with malignant mesothelioma, an incurable cancer that is caused by exposure to asbestos. Sadly, he died less than a year later. In addition to prosecuting Peter's claims on behalf of his estate, Christine Stanley brings her own claim for loss of consortium. In this opinion, the Court will refer to her as " Plaintiff," in her dual capacity, and to Peter Stanley as " Stanley."

Before recounting the defendant-specific facts, the Court notes that at this stage there is no factual dispute about whether Stanley was exposed to asbestos dust and fibers while working at the defendants' plants. Whether the amount and duration of the exposure at any of the respective plants was sufficient to be a legal cause of Stanley's cancer, however, is very much in dispute, although only MidAmerican disputes causation at the summary judgment stage. Therefore, although Plaintiff's statement of additional material facts contains many facts relating to dusty conditions at the plants and Stanley's exposure to asbestos, much of that information is not material to the defendants' primary arguments. For that reason, the Court's factual summary largely omits the details of Stanley's asbestos exposure, except as relevant for background.

A. Coffeen Unit 1: Defendant Ameren[2]

Defendant Ameren Illinois Company (" Ameren" ), formerly known as Central

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Illinois Public Service Company (" CIPS" ), is a power company. Peter Stanley worked on the initial construction of Unit 1 at the CIPS's Coffeen powerhouse in 1965 and 1966. Sargent & Lundy, an architecture and engineering firm (and co-defendant) was hired to design and provide construction specifications for the plant and to provide " field supervision and expediting of material and equipment."

CIPS contracted with Babcock & Wilcox to design, develop, and build a steam generating boiler for Coffeen Unit 1. CIPS's contracts with Babcock & Wilcox are dated May 17, 1962, and October 1, 1963. The contracts provide that Babcock & Wilcox was " an independent contractor and not an agent or employee" of CIPS. They further provide that Babcock & Willis was to furnish all of its own labor, materials, and equipment related to the boiler, though CIPS would provide scaffolding, hoists, and other riggings and tools. CIPS had the right to inspect and test, and accept, reject, or change the work covered by the contract.

CIPS did not directly supervise Peter Stanley's work as a boiler engineer during the construction of Coffeen Unit 1. According to Stanley, however, CIPS was " in control of" the construction project because " they are the ones that issued the purchase order for the contract" and there were not " any other people on that site clearly in charge." Safety issues were important to CIPS, and CIPS wanted to be informed of any safety issues created or observed by contractors on the site. CIPS employees were present at the site throughout the construction of the plant. CIPS maintained offices in a trailer that it shared with Sargent & Lundy employees. CIPS conducted weekly meetings with supervisors of the subcontractors. The CIPS plant supervisor, John Kramer, and assistant plant supervisors, who did not have responsibilities related to construction, regularly walked through the job site during construction to observe. The Babcock & Wilcox boiler had to be chemically cleaned before use; the chemical cleaning contractor held a pre-cleaning meeting with both Babcock & Wilcox and CIPS. Kramer recommended that levels of certain chemical (hydrazine) be adjusted, Babcock & Wilcox wanted to increase the level of acid used to clean excessive iron dioxide from the boiler, it discussed the acid levels with another CIPS supervisor.

B. Coffeen Unit 1 and Kincaid Unit 1: Defendant Sargent & Lundy

Defendant Sargent & Lundy LLC is an engineering firm that provides design consulting and engineering services primarily for the electric power industry. Sargent & Lundy is not a construction contractor and does not supply components for the power plants that it designs. Sargent & Lundy designed and provided construction specifications for Coffeen Unit 1, pursuant to a contract with CIPS. Unit 1 was designed as a brand new structure. Baldwin-Ehret-Hill, Inc. provided and installed the thermal insulation at Coffeen Unit 1, pursuant to a 1964 contract with CIPS.

Sargent & Lundy also designed the Kincaid power plant (owned by former defendant Commonwealth Edison), another plant at which Peter Stanley worked during its initial construction. Sargent & Lundy performed " certain engineering and design services" in connection with the original construction of Kincaid Unit 1 between 1963 and 1967. Armstrong Contracting and Supply Corporation provided

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and installed the thermal insulation for Kincaid Unit 1. Peter Stanley worked at the Kincaid construction site in 1966 and 1967.

C. DPS-2 and Neal-1 Plants: Defendant MidAmerican

Defendant MidAmerican Energy Company (" MidAmerican" ) is the successor to Iowa Power and Light Company, owner of Des Moines Power Station Unit 2 (" DPS-2" ), and Iowa Public Service Company, owner of George Neal Plant Unit 1 (" Neal-1" ). At DPS-2, Babcock & Wilcox erected a new industrial boiler that had been constructed to its specifications by Power Service Corporation. Stanley supervised the commissioning, or start-up, of the boiler, during parts of 1963 and 1964; the erection of the boiler was nearly complete before he began his work. While working at DPS-2, Stanley was employed by Babcock & Wilcox, which controlled his work orders and schedule, paid him, and provided all necessary tools and materials for his work. The engineering consulting firm Black & Veatch was the general contractor for the plant's construction, and Iowa Power & Light employees did not work on the construction or supervise or instruct Stanley in his work. According to Stanley, however, IPL retained " control" over the project, but he provided no further evidentiary detail to support that opinion. At DPS-2, Stanley never saw anyone take airborne asbestos samples or segregate the area where asbestos work was being performed.

At the Neal-1 site, Peter Stanley worked on commissioning a new boiler; most of the work took place in four months in 1964, with a few days of work in 1963 and 1965. Babcock & Wilcox supplied the boiler and supervised its erection. The plant's designer and general contractor, Ebasco Services, Inc., issued the specifications for the boiler, and its employees erected it under Babcock & Wilcox's supervision. Babcock & Wilcox supervised and controlled Peter Stanley's work, paid him, and supplied the necessary tools. According to Stanley's coworker Richard Fockler, IPS was " in charge" of the job site, and employees of IPS were there throughout construction. IPS did not provide any instruction on how to do the work, but IPS employees would tell Babcock & Wilcox when it could run certain tests and how to " integrate" their work " with other suppliers." At the site, no effort was made to segregate workers from the asbestos dust created by the cutting and installation of thermal insulation. MidAmerican's corporate representative testified that Ebasco was " ...


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