The U.S. Court of Appeals for the 4th Circuit has affirmed a ruling from a federal district judge that went against a worker at an American Electric Power (NYSE:AEP) coal plant.
The worker Roger Hoschar had worked as a boilermaker at subsidiary Appalachian Power (APCO)’s Philip Sporn coal-fired plant . Hoschar had allegedly contracted an infectious lung disease called histoplasmosis while working at the plant.
“We hold that APCO did not have actual or constructive knowledge of a potential histoplasmosis risk, and therefore, APCO did not owe Mr. Hoschar a duty to guard against it,” the three-judge appeals court panel ruled Jan. 7. The 4th Circuit affirmed the lower court ruling against Hoschar.
Roger and Judy Hoschar filed originally filed suit in the Circuit Court of Mason County, West Va. They had filed suit for negligence against APCO and Industrial Contractors, Inc. But APCO had removed the case to U.S. District Court for the Southern District of West Virginia.
The Hoschars, West Virginia residents, tried to keep the case in state court. The plaintiffs argued that APCO’s primary place of business was in Charleston, W.Va. The federal district court, however, denied the motion and ruled that the “nerve center” of APCO operations is in Columbus, Ohio.
After discovery, the district court awarded summary judgment to APCO, holding that, pursuant to West Virginia law, APCO did not owe a duty to Hoschar.
ICI was hired by APCO to perform general maintenance at Sporn, which included welding metal patches to the exterior of the precipitators to prevent fly ash leakage. Hoschar was a boilermaker employed by ICI from March 2006 to March 2007. During that time, he worked exclusively at Sporn.
Hoschar’s work involved welding at the Sporn Unit 5 precipitator while hanging from a suspended platform similar to ones used by window washers. Because Unit 5 is an outdoor structure, pigeons sometimes perched on its steel channels and left their droppings behind.
Hoschar often removed layers of bird manure either by hand, with a wire brush or using compressed air. Hoschar wore a respirator over his face.
In March 2007, Mr. Hoschar was terminated from his employment with ICI. A subsequent chest X-ray revealed a mass in his right lung. A biopsy revealed that the mass was not cancer, but instead was a disease called histoplasmosis.
Histoplasmosis is an infectious disease caused by inhaling the spores of a naturally occurring soil-based fungus called histoplasma capsulatum.
Hoschar had pointed to a National Institute for Occupational Safety and Health (NIOSH) publication that said the disease fungus seems to grow best in soils enriched with bird manure or bat droppings.
But the appeals court said that Hoschar offered “zero evidence that APCO had actual or constructive knowledge of the NIOSH Publication itself or that APCO had actual or constructive knowledge that the histoplasma capsulatum fungus was associated with accumulations of bird manure.”
Knowledge of the existence of birds and bird manure at the unit is not enough to show that APCO should have foreseen the disease risk. “Indeed, APCO cannot be charged with knowledge of what is contained within the NIOSH Publication if APCO had no reason to even be aware of its existence,” the appeals court said.
The appeals court held that the federal district court properly granted APCO’s motion for summary judgment.
Roger and Judy Hoschar versus Appalachian Power and Industrial Contractors Inc.; Case No. 12-2482.