Petition for Writ of Certiorari — Upsher v. Grosse Pointe Public School System

Supreme Court, U.8.

FILED

|

iad QO oe

In the

E OF JHE CLERK

Supreme Court of the Unite tutes

JESSE UPSHER; ANNIE ABRAHAM; EDWARD BRODZIK; JEANETTE

BRODZIK; HENRY HUCZEK; AURELIA HUCZEK; STEPHEN KALMUS;

CATHERINE KALMUS; KAREN KOHL; TRACY THACKER; JOHN

O'LOUGHLIN,

Petitioners,

v.

GROSSE POINTE PUBLIC SCHOOL SYSTEM; GROSSE POINTE BOARD

OF EDUCATION; SUZANNE KLEIN; CHRISTIAN FENTON; TIMOTHY

HOWLETT; PAUL PAGEL; CARL ANDERSON; JACK RYAN; JOHN

MILLS; CYNTHIA PANGBORN; SEARS TAYLOR; MARY BETH

HERMAN; JAY JEFFRIES; STEVE MATTHEWS; ED SHINE; LARRY

YANKAUSKAS, individually and in their respective capacities,

Respondents.

ON PETITION FOR A Writ OF CERTIORARITO THE __

UnrrED STATES CouRT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Philip Chaffee Marina Tramontozzi

31] Orchard Hill, S.E. Counsel of Record

Grand Rapids, MI 49506 c/o Curry & Taylor

(616) 299-4489 Suite 520

1112 16 Street, N.W.

Washington, D.C. 20036

(202) 393-4141

Attorneys for Petitioners

Curry & TayYLor @ (202) 3923-41416 HTTPLY/UsSSsCINFO.cOM

i

QUESTIONS PRESENTED

Petitioners are custodial workers, including two

students, employed at Grosse Pointe South High School in

Grosse Pointe, Michigan in 1995. Petitioners, who include

spouses of some workers, were exposed to life threatening

levels of asbestos when they were unlawfully ordered, over

repeated protests, to prepare a floor containing over 3,000

square feet of asbestos tiles for the new carpet after New

York Carpet World walked off the job once it discovered that

the tiles contained 25% asbestos. The EPA and the Michigan

Department of Public Health issued citations to Respondents,

who admitted violating OSHA air monitoring requirements,

among others. As a result of the exposure, Respondents

require medical monitoring, the cost of which is solely on the

backs of Petitioners in the face of the lower court rulings

granting summary judgment to Respondents..

1. Whether the judgment of the Sixth Circuit should be

vacated and reversed as it is in conflict with other decisions

from other Circuits regarding the evidence necessary to

circumstantially prove intent in a 1983 action including, but

not limited, the Secona Circuit’s decision in LaBounty v

Conklin, infra, a 1983 action involving alleged exposure to

asbestos? :

2. Whether the judgment of the Sixth Circuit should be

vacated and reversed as it is conflict with decisions of this

Court and in conflict with applicable Michigan decisions cited

as controlling authorities in Petitioners’ brief below, but

never addressed, discussed or distinguished in the Sixth

Circuit’s opinion?”

3. Whether the judgment of the Sixth Circuit should be

vacated and reversed for “plain error” as it incorrectly found,

among other things, that Petitioners’ 1983 claim was

predicated exclusively on the Due Process Clause when

Petitioners argued below that “a plain reading of the statute

[1983] indicates that it encompasses deprivations of any

rights under all “laws” as well as_ those under the

Constitution?

u

TABLE OF CONTENTS

QUESTIONS PRESENTED ..000i++0scesessosossssssesesoosencosassncesesssesoesosenenserens i

TABLE OF CONTENTS. esscssscsecsesssesessssssecsensseeeeenee nenevesepnoniaenestos ii

TABLE OF AUTHORITIES ..........cccssssccceseocosvesovescenscssensesssscosesorooonss iii

OPINIONS BELOW ....ccccssscssessscssesvonsesscessessssovevesvosoonsessccsusesseneusoonsnes ]

JURISDICTION. ..cccccesssescosevssssesesonessssebecneovosescosonasossscseesaveoosssesoseosneses 1

STATUTORY PROVISION INVOLVED ............ccssscsosssscssccessesesesesesesess 1

STATEMENT OF THE CASE. ...0.:ssenssssopsssessressonseneseseosvosuossevevensovonnsense 2

REASONS FOR GRANTING THE WRIT ...........c.ssssssssssssscssseeeeseeeeneees 18

COIN CLIIBION ..cccesersscrasesessoosssssssqoussesssorssostonntentanabeantevetbacssmmnuneuste 26

APPENDIX

CIRCUIT COURT DECISION ...:ccccsssoscvcserossesensensscosocsieoneonossseoseons la

DISTRICT COURT GRIIBR: ovececssoseesecvneserssescsoursonnssbtncusessecensereee 13a

DISTRICT COURT BENCH RULING ....socccscosvscessocassoessecsovevsseneees 15a

sa

TABLE OF AUTHORITIES

FEDERAL CASES

COLLINS V HARKER HEIGHTS, 503 U.S.

Nisa saree scinnssucsannsnicnsseenvonsnievoxcannnssssonansene 4

FRISBY V SCHULTZ, 487 U.S. 474 (1988) .cscccccosecsccssssssssssssecccosesse 26

GULDEN V CROWN ZELLERBACH CORP.,

890 F.2D 195 (QTH CIR 1989) ....ccccccssssscsssssesscssecsessecccsssecececesse 25

LABOUNTY V COUGHLIN, 137 F.3D 68 (2D

SGN ge 4

ROGERS V MISSOURI P. R. Co., 352 U.S.

SSI 26

STATE CASES

PALAZZOLA V KARMAZIN, 223 MICH APP

141 (1997) voecccsccccsssesee. LEAN. EEA NE 25

TRAVIS V DRIES AND KRUMP MFG. Co.,

453 MICH 149 (1996)........ccccsccesssssssssssscsesesssesssssssesscsescnessseecce 19

FEDERAL STATUTES

OE, TN FRI oo asccscnsesescnevsnssvcconsesscansaseosecareceoaseecsss ce 1

TRG, TI OI casa csanssscssescsarccecovcesascccscssssesocossesacs 1

STATE STATUTES

MICHIGAN WORKERS DISABILITY

COMPENSATION ACT, MICH. COMP.

LAWS ANN. SECTION 418.131(1) .......ccccccccscssssscssssssessssesseseceessces 2

FEDERAL REGULATIONS

iv :

CLEAN AIR ACT. 36 FED. REG. 5931

Suey Ivsnshaclnnisettinetesecicelpieihaneesceshesicsaaebiisimnptnbiaanilaniaahinneiionies 6

ule ins SRLeN bah eerie be i

1

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorayi to

review the judgment of the United States Court of Appeals for

the Sixth Circuit in this case.

OPINIONS BELOW

The decision of the United States Court of Appeals for the

Sixth Circuit dated April 4, 2002, is set forth the Appendix,

p.la. The Order of the United States District Court for the

Eastern District of Michigan, Southern Division dated May 30,

2000, and the transcript of the court's bench opinion are set

forth in the Appendix.

STATEMENT OF JURISDICTION

The statutory provision for this Court’s jurisdiction is 28

U.S.C. Section 1254. The United States Court of Appeals for

the Sixth Circuit issued its decision on April 4, 2002. This

Petition was timely filed.

STATUTORY PROVISIONS INVOLVED

Fourteenth Amendment, United States Constitution:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States, nor shall any

State deprive any person of life, liberty, or

property, without due process of law....

Statutory issues under 42 U.S.C. Section 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State ... subjects, or causes to be subjected,

2

any citizen of the United States or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceedings for redress.

Intentional tort exception of Michigan Workers Disability

Compensation Act, Mich. Comp. Laws Ann. Section

418.131(1):

The right to recovery of benefits as provided

in this act shall be the employee’s exclusive

remedy against the employer for a personal

injury or occupational disease. The only

exception to this exception is an intentional

tort.

STATEMENT OF THE CASE

Procedural History

The case was initially before Judge Hood of the U.S.

District Court for the Eastern District of Michigan, Southern

Division. At the scheduling conference, it was revealed that

one of the defense counsel assigned to the case by

Respondents’ attorneys had clerked for Judge Hood and

attended the church where Judge Hood’s husband was a

minister/member. Judge Hood indicated that she could

preside over the case impartially. However, when

Respondents filed a motion for summary judgment, Judge

Hood inexplicably recused herself and the case was

reassigned to Hon. Anna Diggs Taylor.

Judge Taylor denied Respondents’ initial motion for

summary judgment with respect to Respondents’ 1983 claim,

stating “as Plaintiffs’ counsel has aptly argued, could possibly

go forward on a case of deliberate indifference.” Following

3

extensive discovery, including the depositions of Petitioners’

experts whose testimony was unrefuted in this case,

Respondents filed a renewed motion for summary judgment.

Despite the testimony of the former Head of Industrial

Hygiene for Ford Motor Company that the Respondents acted

with “total and callous disregard” and “deliberately” exposed

Petitioners to respirable asbestos, the trial court concluded

that Respondents had not made a sufficient showing of intent

to cause harm to establish a 1983 action. Apparently, the trial

court was not as shocked as the former Head of Ford Motor

Company’s Industrial Hygiene at the actions, and just as

importantly inactions, of Respondents in this case.

Similarly, the trial court found that Respondents had

sustained no injuries as a result of the exposure in the face of

the unrefuted testimony from another expert, with a Masters

Degree in Public Health from Harvard, whose opinion is that

the degree of exposure puts Petitioners, particularly the two

students, at “significant risk” of asbestos related disease and

necessities annual medical monitoring. The trial court

dismissed the damage claims without so much as a scintilla

of evidence to the contrary from Respondents.

The medical monitoring costs recommended by

Petitioners’ expert are staggering. For the two students, such

monitoring amounts to over $100,000 during a lifetime.

Respondents have steadfastly refused to pay for any

monitoring costs. The trial court’s decision in this case leaves

Petitioners with no source for recovering expenses brought

about by Respondents admittedly unlawful conduct.

The trial courts judgment was timely appealed to the

Court of Appeals for the Sixth Circuit, which affirmed the

trial court’s decision. However, in doing so, the Court of

Appeals tacitly reversed the trial court's finding that

Petitioners had sustained no injuries as a result of their

unlawful exposure to respirable asbestos, stating that:

4

“[Tjhe plaintiffs’ expert reported that as a

result of the exposure, the plaintiffs are at a

significant increased risk of developing, inter

alia, lung cancer, Mesothelioma, kidney

cancer, leukemia, and lymphoma - all

requiring expensive medical monitoring.”

Although it recognized Petitioners’ need for “expensive

medical monitoring,” the Sixth Circuit’s decision, like the trial

court’s decision, leaves Petitioners without any third party

source to recoup expenses for expert recommended medical

monitoring as Respondents have refused to pay for any such

monitoring, even though the monitoring was necessitated by

Respondents’ admitted violation of applicable federal health

and safety laws

Significantly, the Court of Appeals flatly rejected and did

even discuss, other than note the existence of, a decision in

conflict with its opinion in this case rendered by the Second

Circuit in a 1983 action involving exposure to asbestos,

stating:

“The plaintiffs urge that the Second Circuit’s

decision in LaBounty v Coughlin, 137 F.3d 68

(2d Cir. 1998), requires reversal of the district

court’s judgment: however we conclude that

our decision in Lewellen demands the

opposite result.”

The Court of Appeals further noted that, unlike the

plaintiff who was before this Court in Collins v Harker

Heights, 503 U.S. 115, 120 (1992), Petitioners’ allegations that

Respondents’ actions were “willful, wanton, malicious and

demonstrated complete, utter and reckless disregard for

health and safety” make our a violation of 1983. Specifically,

the Court of Appeals stated: “we conclude that a ‘fair reading’

of the plaintiffs’ complaint, unlike the complaint in Collins,

does allege a willful violation.”

5

For whatever reason, the Sixth Circuit erroneously

concluded that Petitioners’ 1983 claim was predicated solely

on a violation of the Due Process Clause of the Fourteenth

Amendment and not violations of applicable federal laws

such as AHERA as well. Respondents’ position was clearly

articulated in the brief filed with the Court of Appeals and in

the trial court, which recognized in denying the initial motion

that “So I have to deny the motion on the 1983 claim. It is not

simply based on the environmental law statutes, but on the

law of deliberate indifference as well.” (Tr 11-15-99 at 57: JA

pp 407-422).

The Court of Appeals was equivocal about the precise

Standard to be applied in a 1983 action. It questioned, but

never stated, whether the “deliberate indifference” standard

suggested at the trial court level by Respondents and used by

the-taal court in granting summary judgment was applicable,

Stating that “the more exact standard was arbitrary conduct

designed to punish or conscious shocking behavior.” A fair

reading of the opinion truly leaves one wondering what

standard to apply in future cases.

Like the trial court, the Court of Appeals ignored the

unrefuted testimony of the former Head of Industrial Hygiene

for Ford Motor Company and Professor at Wayne State

Medical School that the Respondents actions in this case

were “with total and callous disregard for grave human health

hazards [and] with cavalier disregard for that hazard and

deliberately exposed these gentlemen.” Although Mr. Wabeke

testified that not once in his 30 plus year career had he

“observed such disdainful behavior by managers of an ACM

[asbestos containing materials] facility where armed with

clear evidence of the presence of ACM, proceeded to place

workers in harm’s way by skirting the regulations and

ducking the law,” the Court of Appeals did not even discuss

application of the “conscious shocking” standard articulated

in the decision.

With respect to Petitioners’ contention that the

intentional tort exception to Michigan's Workers Diszbility

Compensation Act applied to their state law claims, the Court

of Appeals recognized that Petitioners’ exposure to over 3,000

square feet of tiles containing 25% asbestos during the 10 day

period the job was performed could constitute a “continually

operative dangerous condition.” In such circumstances, the

Michigan Supreme Court has held that an employer has a

duty to inform workers about the dangerous condition so that

they might take steps from being injured.

The Court of Appeals, however, found “no evidence” in

the record that Respondents knew of a condition that would

cause injury and refrained from informing Respondents. This

finding, like others, is baffling in light of the uncontested fact

that the two students who were employed for the summer

were not informed until 5 months after the job that the tiles

they were tearing up with knives, hammers and shovels

contained asbestos. Some full time custodians were not

aware until government investigations commenced, as they

never even received notification from Respondents.

Without such basic knowledge, students John O’Loughlin

and Jessie Upshur and other workers most ot who knew little

more than the students, could not and did not take any

measures to protect themselves and were exposed to

unlawful levels of breathable asbestos, necessitating medical

monitoring that the school system now will not provide. Even

when the students were informed, the letter conveying such

information was misleading, stating, among other things that

the “appropriate tests were taken” when, in fact, no air

monitoring was performed during the 10 day removal

process. The students bore the bulk of the heavy work like

hammering and chiseling of tiles containing 25% asbestos, as

they were young summer help and others sweeping up

asbestos fibers by hand with no respirator or other protection

did not know any better themselves or else they and the

students would not have been playing “Russian Roulette”

with tiles containing 25% asbestos, which was declared by

Congress to be a “dangerous toxic chemical” and was listed

as a “hazardous air pollutant” in the regulations to the Clean

Air Act. 36 Fed. Reg. 5931 (1971).

7

Defendants Were Well Aware of the Ultra Hazardous

Nature t

The Grosse Pointe Public School System (“GPPSS”) was

well aware of, but did not communicate to workers,

principals, teaches, parents and students, the hazards

associated with working with asbestos containing materials

as well as applicable federal and state laws, rules and

regulations. Indeed, the Grosse Pointe Public School System

received a pamphlet entitled the “ABC’s of Asbestos in

Schools” published by the EPA, National Education

Association and National Parent Teacher Association 6 years

prior to Plaintiffs’ unlawful exposure. Page 17 states, in part,

that “an ill-conceived or poorly conducted removal can

actually increase rather than eliminate risk.” Had

Respondents minded the ABC’s set forth in the manual,

Petitioners would not be before this Court.

Other incriminating documents in Defendants’ files

included materials from a training seminar sponsored by the

Institute for Environmental Assessment, and attended by

Defendant Fenton, Asbestos Manager for the Grosse Pointe

Public School System, five years prior to the incident in

question. (R36: Brief in Support, Exhibit 6 —Training Book

from Institute of Environmental Assessment and Exhibit 7-

Fenton Dep p12; JA pp269-282 & 518-530). With respect to

the risks associated with low-level exposure, the materials

confirmed, and Defendants were thus acutely aware, that

“asbestos is known to be hazardous” and that “there is no

level of exposure below which the risks of contracting an

asbestos related disease are not zero. That is, there is no

threshold level of exposure.”

In what has to be shocking to any reasonable person,

Asbestos Manager Fenton did nothing, until after the

unlawful asbestos exposure, to convey such information to

Petitioners. In fact, the school system was cited by the EPA

for failure to notify teaches, workers, parents and students of

the location of a plan showing asbestos containing materials

in the school. Assistant Principal Pagel, who ordered the job

8

done, did not even know that there was such a thing as a plan

showing the location of asbestos containing materials

throughout the school, which literally ranged from floor (the

tiles in question) to ceiling (the tiles in the gym that were

occasionally disturbed during gym, etc.). (R.36: Brief in

Support, Exhibit 8 —- Kohl Dep p21; JA pp622-643).

The seminar materials specifically warned attendees like

Asbestos Manager Fenton, who were becoming certified

managers of asbestos containing public facilities, that:

“Use of in-house staff in lieu of outside experts

may be a serious mistake and may result in

legal liability if the in-house staff is

unqualified. AHERA Regulations require that

all maintenance and custodial personnel

receive at least 2 hours of awareness training,

with an additional 14 hours of training

mandated for personnel whose work activity

may disturb asbestos.” (Emphasis added).

Despite being now warned at least twice about the

dangers of letting untrained workers handle asbestos

materials, Asbestos Manager Fenton never promulgated any

rules, . regulations or procedures nor did he issue any

warnings or instructions about asbestos containing materials

until after Plaintiffs were unlawfully exposed to asbestos.

lronically, the Grosse Pointe Public School System was cited

by the EPA and admitted responsibility for violating the very

AHERA regulations Asbestos Manager Fenton had studied at

a seminar 5 years earlier when he became certified and had

read about 6 years earlier in the ABC’s of Asbestos in

Schools. A more callous disregard for worker health, safety

and welfare is had to imagine, particularly when it involves a

carcinogenic substance like asbestos that is life threatening

even in the case of low level exposure.

9

In 1995, it was decided that the main office area at Grosse

Pointe South High Schoo! (“South”) would be re-carpeted. To

that end, Defendant Paul Pagel (Assistant Principal) was

given the task of selecting and installing new carpet. Mr.

Pagel chose New York Carpet World (NYCW), which came

out to the job site and took a sample of the tiles underlying

the carpet. NYCW subsequently walked off the job and

refused to rip up the old carpet and prepare the floor for the

installation of new carpet because the underlying floor tiles

contained asbestos. (R.21: Brief in Support, Exhibit 17-

Findings of MIOSHA and Exhibit 13-Memo Fenton to Shine;

JA pp326-330 & 321-323).

Following NYCW’s refusal to prepare the floor for new

carpet installation, Assistant Principal Pagel did absolutely

nothing to ascertain whether any other licensed and trained

outside contractor would prepare the floor for new carpet

installation as the school had done in the past when it knew

beforehand that the floor tiles contained asbestos. Incredibly,

Assistant Principal Pagel did not even bother to consult with

anyone within the school system such as Asbestos Manager

Fenton or Superintendent of Buildings Yankauskus, despite

admittedly knowing that the floor tiles contained asbestos

and that NYCW would not touch the job. (R.36: Brief in

Support, Exhibit 3-Yankauskus Dep. and Exhibit 12-Pagel

Dep.; JA pp693-703 & 644-661).

Instead of taking any precautionary measures, and in the

face of NYCW’s flat out refusal to perform the work, Assistant

Principal Pagel ordered the custodial workers at South High

School, who included two students, John O'Loughlin and

Jesse Upshur, to prepare the floor for new carpet installation.

Significantly, Pagel did not tell any of the Respondents that

the tiles had tested positive for asbestos or that New York

Carpet had walked off the job because 25% of the floor tiles

were asbestos. He simply threatened and intimidated them

into doing the job, and at no time gave them any “heads up”

as to the presence of asbestos in floor tiles that they would

have to come into contact in order to start the job of

removing the old carpet and the tack board and such nailed

10

into the tiles, one-fourth of which contained a substance to

which there was no safe level of exposure, a fact Congress

recognized a quarter of a century earlier.

Pagel did not know whether the custodians had proper

training to handle a known carcinogenic substance — they did

not and federal and state officials thereafter cited the school

because they did not. When told to perform the work, Steve

Kalmus (Foreman) immediately raised a concern about

exposure to asbestos fibers and protested the job to Pagel.

Three other custodians overheard Kalmus’ protest and

reported it to the EPA investigator. (R.36: Brief in Support of

Response, Exhibit 11 — EPA Investigation and Exhibit 12

Pagel Dep; JA pp348-366 & 644-661).

Despite Kalmus’ protest, and without checking any

further with anyone in the school system, Pagel directed

Head Engineer Jay Jeffrey and foreman Kalmus to have the

workers prepare the floor for new carpet installation. He did

so knowing full well that the job entailed contact with

asbestos containing floor tiles that could release airborne

asbestos fibers, which caused cancer. (R.36; Brief in Support,

Exhibit 12-Pagel Dep; JA pp644-661). Pagel did not even stay

around while the work was performed but promptly left for

vacation and was unreachable thereafter. (R.21: Brief in

Support, Exhibit 16-Jeffrey Notes; JA p325).

Before the job began, another one of the custodians,

Charles Eriksen, asked the principal’s secretary to contact

the Central Office where the Asbestos Manager, Building

Superintendent and Board of Education were housed. Mr.

Eriksen wanted a letter of assurance that the removal was

safe in regard to the health. and welfare of the parties

involved. No response was forthcoming. (R.36: Brief in

Support, Exhibit 3-Yankauskus Dep, and Exhibit 11- EPA

Investigation; JA pp693-703 & 348-366).

According to the principal’s secretary, Tudi Harwood, she

and Defendant, Jay Jeffrey (Head Engineer), reviewed

regulations published by the Michigan equivalent of OSHA

11

before and after the job was started, which regulations

contained OSHA’s air monitoring requirement violated here.

Despite having done so, and asbestos training two years

earlier, Head Engineer Jeffrey, who was in charge of the

project, did nothing to halt the protested job but waltzed right

ahead and oversaw the violation of the MIOSHA book he had

consulted twice as well as federal laws like AHERA which

also were admittedly violated in this case. (R36: Brief in

Support, Exhibit 1-Harwood Dep; JA pp531-546). Like

Assistant Principal Pagel before him, Head Engineer Jeffrey

had little or no concern for the welfare and being of the

workers beneath him. He testified at his deposition that if he

had it to do it all over again, he would run the floor

preparation job the same way.

Midway through the project, Tudi Harwood, called

defendant Yankauskus (Building Superintendent) and asked

him to come over to South High School and look into

concerns Plaintiffs were then expressing for a third time over

the exposure to asbestos R.36: Brief in Support, Exhibit 1,

Harwood Dep. pgs 24 (25; JA pp531-546). Building

Superintendent Yankauskus went to South High School and

spoke briefly with the principal and her secretary but did not

even enter Plaintiffs’ work area and did not attempt to

approach Plaintiffs (R.36: Brief in Support, Exhibit 3,

Yankauskus Dep; JA pp693-703).

Yankauskus did virtually nothing about halting the job,

which he admittedly knew NYCW refused to perform. He

also knew that the job was “dangerous,” and attempted to

contact Asbestos Manager Fenton and Assistant Principal

Pagel “about a situation that could be hazardous” (R, 36: Brief

Support, Exhibit 3, Yankauskus Dep p66; JA pp693-703).

Superintendent of Buildings Yankauskus was unsuccessful in

reaching Fenton or Assistant Principal Pagel and did nothing

else - such as telling the workers in front of him that the job

was “dangerous” and “could be hazardous.” As a result,

Plaintiffs continued to be exposed to asbestos in excess of

EPA’s permissible exposure limit as they completed the floor

preparation work in further violation of federal health and

12

safety laws like AHERA, which Yankauskas, as one certified

in the 14 hour asbestos awareness class that even Head

Engineer Jeffrey had not yet taken, clearly knew as he

confessed in the trial court were “dangerous” and

“hazardous.”

The entire project took up to ten days and involved 3,000

square feet and eight to ten rooms. Some floor tiles started

coming up immediately with the carpet. Other floor tiles

stuck and had to be removed by hand with hammers, chisels,

etc. One of workers used a jackhammer during the removal

process. According to an EPA investigator, the use of such a

device would be assumed to have resulted in the release of

“friable” asbestos and a response item triggering a host of

mandatory actions mandated by AHERA and other asbestos

related laws.

Head Engineer Jeffrey himself used an ice spud to

pulverize the tiles. Because they were so ill trained,

Petitioners were not even aware that they were engaging in

unsafe work practices and exposing themselves to cancer

causing fibers. (R.36: Brief ui Support, Exhibit 11-EPA

Investigation; JA pp348-366). The students were not informed

beforehand and did not know that they were handling floor

tiles containing asbestos until 5 months later when

Respondents sent a self-serving and misleading letter that

told them there was nothing to worry about as “all

appropriate testing” had been done, when, in fact. Federally

mandated air monitoring had not been performed. As

amazing as the tardiness of the letter to the students may

seem, some workers did not yet received any notification

from the Grosse Pointe Public School System and only

learned of their exposure once governmental investigations

were getting underway.

One worker has stated that he and Plaintiff John

O’Loughlin, a student with absolutely no asbestos training,

“chipped, pounded and pulverized the broken tiles into 10,000

pieces” thereby causing the asbestos in the tile to become

“friable” or airborne and breathable. Another worker who

13

hand swept the dust from the project had a bag break and

cover his head with asbestos when he went to throw it in a

dumpster. :

All workers agree that the conditions were unbearable as

they were inundated with dust and debris from the tiles

containing 25% asbestos. (R.36: Brief in Support, Exhibit 11-

EPA Investigation and Exhibit 14- Excerpts from Plaintiffs’

Deps; JA pp 348-366 & 462-481, 547-562, 581-616 and 622-643).

The workers were not provided with any protection

whatsoever such as respirators or disposable clothing and no

equipment such as a HEPA vac to collect the asbestos fibers

otherwise circulating throughout the school building. (R.36:

Brief in Support, Exhibit 15, 2-9-96 Letter from Sue Baldwin:

JA pp326-330). Under regulations pending at the time, of

which the Grosse Pointe Public School System was fully

aware, Respondents would have violated six additional

regulations requiring such basic safety equipment as air

monitors, barriers for containment and respirators for

workers, bold warning signs of “HAZARDOUS MATERIAL”

surrounding the workplace and a HEPA vacuum to collect

asbestos fibers that had been released rather than the hand

brooms used by some.

Defendants Admittedly Violated Federal and State

Laws

At the insistence of Plaintiffs, a complaint was lodged

with the Michigan Department of Public Heaith on or about

December 13, 19985. The complaint resulted in an

investigation by the Department of Public Health. Citations

were subsequently issued for: (1) failure to perform

exposure monitoring required by the Federal OSHA Asbestos

Construction Standard and (2) failure to instruct employees

in the recognition and avoidance of unsafe conditions

involving asbestos. Defendants would have received an

additional six citations if pending regulations, of which they

were fully aware, had been in full force and effect. (R.36:

Brief in Support, Exhibit 15-MIOSHA Letter and Exhibit 18

Complaint; JA pp341-343).

14

At Plaintiffs’ request, a representative of the U.S. EPA

also conducted an inspection of the tile removal in question

to determine compliance with applicable federal laws, rules

and regulations. The inspection resulted in the issuance of a

Notice of Noncompliance for Violation of 40 C.F.R. The

investigator found that: (1) the custodial supervisor and

workers who removed the asbestos containing floor tile had

not received the 14 hours of asbestos training required before

conducting such activities; (2) the bulk samples of suspected

asbestos material were not collected by the school by an

accredited inspector; (3) bulk samples collected by the

school were not analyzed by an accredited facility; and (4)

written notices to parent, teacher and employee

organizations did not specify as required by law where the

schools asbestos management plans were available for

review (perhaps explaining why Assistant Principal Pagel did

not know the school had a plan, such as it was). (R.36: Brief

in Support, Exhibit 11-EPA Investigation and Exhibit 19-

Notice of Non-Compliance; JA pp 344-366).

aintiffs We pli .

Containing Floo es

In support of their claims, Plaintiffs retained the services

of Roger Wabeke, former Supervisor of Industrial Hygiene for

Ford Motor Company and a Professor of Industrial Hygiene

and Environmental Toxicology at Wayne State School of

Medicine (R.35 and 36: Response and Amended Response,

Wabeke Expert Report and Dep; JA pp180-197&665-692). Mr.

Wabeke’s testified:

“You [counsel for Defendants] might have

to guess. I can give an opinion based on my

experience. *** I don’t want the record to

reflect that I’m speculating or guessing or just

pulling numbers out of the hat. I gave you my

estimates based on the facts as I understood

them to be coupled with my experience and

education and training taking literally

thousands of air samples, many of which were

15

at VAT [floor tile] removal. I’m giving you an

informed judgment call based on those

factors.

SROKK

In spite of laboratory analytical testing

demonstrating the presence of chrysotile

asbestos fibers in the floor tiles, responsible

individuals in the administration of Grosse

Pointe South High School egregiously, and

with total and callous disregard for the grave

human health hazards of asbestos fiber

inhalation, elected not to comply with OSHA

regulations.

se

Your client botched the job from get to go.

They had advance knowledge of the hazards

of asbestos fiber exposure. And armed with

that knowledge they proceeded to waltz right

ahead and deliberately expose plaintiffs in this

action to a Class A carcinogen, which was

easily controlled by standard industrial

hygiene practices that have been known and

recognized for decades. These exposures were

preventable, and I’m going to repeat your

client botched it completely. The school was

on notice from New York Carpet World that

this was an incredibly hazardous project and

they proceeded to act with cavalier disregard

for that hazard and deliberately exposed

theses gentlemen.

KK

Based on my review of the work practices

and the absence of industrial hygiene control

methods, it’s clear to me that these individuals

had excessive exposures, in excess of the

permissible limit-PEL, as we call it, or as

OSHA calls it. (R.35 and 36: Response and

Amended Response, Wabeke Expert report

and Dep; JA pp180-197 & 665-692).”

Plainti Vv

Several of the Plaintiffs have developed respiratory

problems, which they did not have prior to being illegally

exposed to asbestos. One of the Plaintiffs, Stephen Kalmus,

has been so traumatized by the events surrounding this

matter that he suffers from posttraumatic stress syndrome,

cannot work and is on social security disability. It is a matter

of record in the Circuit Court for the County of Wayne in

Wayne County, Michigan, that upon hearing the trial court’s

ruling first hand, Mr. Kalmus was finally pushed over the top,

threatened physical violence for which the Grosse Pointe

Public School System sought and obtained a TRO and

subsequently was hospitalized for medical treatment (R.36:

Brief in Support, Exhibit 20, Kalmus Dep ppd, 6 and 21; JA

pp581-616).

According to expert Dr. Ernest Chiodo, who has a degree

in internal medicine from Wayne State University as well as a

Masters in Public Health from Harvard University:

“However, ultimately, when OSHA derives

a permissible exposure limit in their great

wisdom, they look at such things as relative

risk, I look towards some guideline, some

guidance from OSHA, and OSHA says

exposure above the permissible limit exposes

these people to risks and therefore I have to

make decisions based upon that.”

In the opinion of Dr. Chiodo, Petitioners are at a

“significant increased risk” of a number of diseases including,

but not limited to: asbestosis, lung cancer, mesothelioma,

kidney cancer, leukemia and lymphoma. With the exception

of asbestosis, there is considered to be no threshold level for

development [of asbestos related diseases] I mean, one good

breath of asbestos can cause the development of [diseases].

There is no dose response relationship with asbestos and

[asbestos related diseases]” (R.38: Amended Response-

Chiodo Expert Report and Dep; JA pp 204-225 & 482-517).

17

In view of their uncontested exposure to respirable

asbestos fibers in excess of legal limits, Plaintiffs’ expert

recommends that they undergo medical surveillance. As Dr.

Chiodo opined:

“The fact that one is exposed to a level,

above what OSHA believes is permissible,

exposure limit indicates for my purposes as an

occupational environmental medicine doctor,

that I can safely provide an opinion that these

individuals require medical monitoring. (R.36

and 38:Response and Amended Response-

Chiodo Expert Report and Dep; JA pp 204-225

& 482-517).

Some of Plaintiffs are undergoing monitoring now.

Others cannot afford such costs. The lifetime cost of such

monitoring ranges from $100,000.00 in the case of student

Plaintiffs to $40,000.00 and up for adult Plaintiffs. (R.36 and

38: Response and Amended Response-Chiodo Report; JA

pp204-225). Defendants again presented no evidence in the

trial court that medical monitoring was not the prudent thing

to do under the circumstances, given Plaintiffs’ daily

exposures, for perhaps as long as 10 days, to levels of

asbestos exceeding EPA’s permissible limit.

After supposedly looking at the evidence in this case inn

the light most favorable to Respondents, for starters, the

Sixth Circuit affirmed the decision of the trial court, leaving

Petitioners, coming before this Court in the inequitable

position of having been exposed to life threatening levels of

asbestos by Defendants in violation of applicable federal laws

such as AHERA, but without any source to obtain expert

recommended medical surveillance other than their own

pockets. In this regard, the Grosse Pointe Public School

System has denied former student John O'Loughlin any

further workers compensation benefits unless he can show a

lung related disease (by which time he will probably be dead

if he inhaled a fiber that developed into such a disease).

18

What the Court of Sixth Circuit essentially did was to

weigh the parties’ conflicting interpretations of the evidence

and make determinations regarding matters such as the

Defendants’ intentions or motives that usually entail the

drawing of factual inferences over which reasonable minds

can differ. Courts have traditionally found that issues such as

a party’s knowledge of a dangerous condition, appreciation of

prospective harm and/or awareness of the certainty of harm,

among a multitude of others, are inappropriate for resolution

by summary judgment.

Unlike most courts, the Sixth Circuit in this case

obviously did not feel so constrained and issued an opinion

reflective of the kind of tortured reasoning one has to go

through, and incorrect assumptions one has to make in order

to summarily dismiss the unrefuted testimony of Petitioners’

experts on core issues like intent and grant summary

judgment to Respondents’ admitted violations of federal

health and safety laws going to the heart of this case like air

monitoring, uwaining and notice to Respondents and teachers,

parents, students and others of the location of asbestos

containing materials in a school which was riddled with such

materials. There is a plethora of flawed assumptions and

reasoning in the Sixth Circuit’s decision, which will be more

fully explored if permitted by this Court. The opinion issued

by the Sixth Circuit is contrary to decisions of this Court,

other Circuit Courts, the Supreme Court of Michigan and

contrary to basic notions of justice. Certiorari is therefore

respectfully requested from this Court.

REASONS FOR GRANTING WRIT

The petition should be granted for three reasons. First,

the Sixth Circuit’s decision conflicts with holdings of this

Court and other circuits. Indeed, the Sixth Circuit took pride

in shooting down a decision from the Second Circuit that

Petitioners had relied upon since it involved a 1983 action

and asbestos exposure, just like this case. The major

differences between this case and LaBounty, which involved

19

a prisoner who claimed exposure to asbestos from work

done on pipe near his cell, are that Petitioners in this case

have unrefuted expert testimony regarding liability and

damages, admitted violations of governing federal laws, while

the plaintiff in LaBounty did not. The results of circuit court

cases are just as dramatic — a denial of Defendants motion for

summary judgment in the Second Circuit’s decision in

LaBounty and the granting of summary judgment by the Sixth

Circuit in the case at bar. Surely, this is a conflict needing

resolution by this Court as well as the proper standards to be

applied in 1983 actions throughout the United States of

America.

Second, the Sixth Circuit’s decision is in conflict with

decisions of this Court as well as decisions of the Michigan

Supreme Court, including its holding in Travis v Dries and

Krump Mfg. Co., 453 Mich 149 (1996) that Michigan’s

Workers Compensation Act should not be construed in a way

so as to confine an employer's liability “to those situations

that are true intentional torts” and did not intend the

threshold to be “so rigorous as to preclude all claims of

intentional tort.” One is hard pressed to reconcile the result

in this case with the Michigan Supreme Court's admonition.

For this and other reasons, review should be granted to

correct the defects in the Sixth Circuit’s opinion and to

enunciate the proper standard required in a 1983 action, as

the Sixth Circuit seemed unclear on the matter when issuing

its opinion in this case.

Third, the Sixth Circuit committed plain error in this case.

Among other things, the Sixth Circuit incorrectly assumed in

its opinion that Petitioners’ 1983 actions was predicated

solely on the Due Process Clause. In fact, Petitioners argued

in their appellate brief below that their 1983 claims were also

based on Respondents’ violations of federal health and safety

laws. The trial court certainly was aware of Petitioners’ claim,

as it stated as follows in denying Respondents’ initial motion

for summary judgment: “So I have to deny the motion on the

1983 claim. It is not simply based on environmental law

statutes, but on the law of deliberate indifference itself.”

20

I. Certiorari Is Warranted Because The

Decision Below Conflicts With Decisions Of

This Court And Of Other Circuits And Of The

Michigan Supreme Court

The Sixth Circuit’s opinion acknowledges a conflict with

the Second Circuit’s decision in LaBounty, which involved a

1983 action brought by a prisoner for alleged exposure to

asbestos when pipes around his cell were repaired. In no

uncertain terms, the Sixth Circuit flatly rejected the reasoning

of the Second Circuit on a 1983 claim involving exposure to

asbestos, refusing to even discuss or distinguish a case

involving summary judgment and identical issues of law and

fact. However, both claims are alike in that they involve

duties owed to third persons by persons in control of

asbestos containing facilities such as a prison or school

constructed when asbestos was an ingredient in everything

from floor tiles to ceiling tiles. This acknowledged conflict

obviously needs resolution by this Court so that the proper

standards to be applied in 1983 actions like this one are

uniformly applied and do not depend on whether one is a

prisoner in New York or a custodian in Grosse Pointe,

Michigan (although for purposes of this case, the custodians

would have been better off prisoners in New York).

Beyond the acknowledged conflict with the Second

Circuit, and the need to reconcile the Sixth Circuit's opinion

with holdings of this Court on material issues in this case, the

decision of the Sixth Circuit tramples Michigan law and

decisions of the Michigan Supreme Court and the appellate

courts of Michigan. In this regard, it merits emphasis that the

Sixth Circuit did not address or attempt to distinguish the

Michigan authorities which Petitioners’ contended in their

appellate brief below mandated reversal of the trial court’s

decision granting summary judgment, other than the

Michigan Supreme Court’s decision in Travis.

The Sixth Circuit agreed with Petitioners that one of the

core holdings in the Michigan Supreme Court’s ruling in

Travis could arguably apply to the facts of this case. In Travis,

21

the Michigan Supreme Court held that when an employer

subjects an employee to a continuously operative dangerous

condition that it knows will cause injury (demolition of

asbestos tiles), yet refrains from telling the employee of the

dangerous condition so that he is able to take steps from

being injured, a fact finder may conclude that the employer

had knowledge that an injury was certain to occur.

While the Sixth Circuit acknowledged the applicability of

the holding in Travis to this case, it found that “there is no

evidence that that any of the defendants knew this condition

would cause injury and refrained from informing the

plaintiffs.” Such could not be further from the truth. Asbestos

Manager Fenton knew from training seminars in becoming

certified and reading the ABC’s of Asbesto in Schools that

use of in-house and untrained workers could lead to the very

situation present here, but did not undertake to issue policies

or procedure about the hazards of asbestos or handling

asbestos-containing material until after Petitioners were

ordered to perform work over protest that resulted in their

exposure to asbestos fibers in excess of the EPA’s allowable

limit. Petitioners were thus unaware of the hazardous nature

of the work that they were performing.

Certainly, no one in their right mind would take hammers,

chisels, ice spuds and even a jackhammer to remove asbestos

tiles knowing a small fraction of what should have been told

to them by the person in charge of Asbestos Management,

Christian Fenton as well as others. Things such as that

Congress has know for 25 years that there is “no safe level” of

exposure and what to do if asbestos containing materials are

encountered, which is in the ABC’s of Asbestos put out by the

EPA, National Education Association and National Parent

Teacher Association.

Similarly, Building Superintendent Yankauskus knew that

a professional carpet company had refused the job because

the floor tiles contained asbestos and was called over to the

job site by the principal’s secretary because of concerns

workers were having for a third time about exposure to

22

asbestos from the floor tiles half-way through the tile

removal. Tellingly, he admitted that the job was “dangerous”

and that he attempted to contact Asbestos Manager Fenton

about “a situation that could be hazardous.” However,

Petitioners were never made privy to such information since

the Building Superintendent did not even give them the time

of day but stood off to the side with the principal when he

visited the school because of worker concerns about

exposure to asbestos. Had he told Petitioners that the job was

dangerous or that the situation could be hazardous, they

would have never continued to remove asbestos tiles in a

cave man like fashion with pick, shovels and whatever else

they could lay their hands and continued to expose

themselves to life threatening, friable asbestos fibers

exceeding EPA’s permissible exposure limit.

Assistant Principal Pagel knew when he ordered the floor

preparation work done by untrained school custodians that a

national carpet company refused the work due to the

presence of asbestos in the floor tiles underneath the old

carpet that had to be ripped out prior to the installation of

new carpet. He never advised any of the Petitioners that tile

samples had tested positive for asbestos or that New York

Carpet World had aeclined the work and that they would

have to do it. Thus, even foreman Kalmus was kept in the

dark about the fact that the tile contained 25% asbestos.

Pagel also knew that if asbestos fibers in the floor tiles

were released during the removal process, they could lodge

in the lungs and cause cancer, yet never so informed

Petitioners. Instead, Pagel conveyed the impression that there

was nothing to be concerned about in removing the old

carpet and preparing the floor for the installation of new

carpet. Had Pagel been forthright, Petitioners would have

been aware to take steps to protect themselves and certainly

not used everything from a jackhammer to an ice spud to tear

up the floor tiles in a manner certain to cause the release of

friable asbestos fibers and potentially kill themselves.

23

Last, but not least, is Head Engineer Jeffrey, who read not

once but twice the MIOSHA rules and regulations regarding

the handling of asbestos containing materials like the floor

tiles including the air monitoring required by OSHA. Not to be

deterred, he went ahead and presided over an egregious

violation of fundamental safety principles known for a

quarter of a century before the job in issue. Like Assistant

Principal Pagel, Petitioners were not even aware that the

school had an asbestos plan. None of them knew for certain

at the time that the tiles contained asbestos. Unlike the Head

Engineer, none of them knew that MIOSA rules and

regulations existed and thus were unable to avail themselves

of the opportunity to take precautions for themselves-as

Respondents clearly were not taking any on their behalf.

Again, there is a direct correlation between the

actions/inactions of Respondents and the Petitioners’

unlawful exposure to levels of asbestos fibers exceeding the

EPA’s permissible limit. If Respondents cannot make out a

failure to train case here, then it is impossible for any such

action to be viable under the Sixth Circuit’s ruling.

As demonstrated above, the Sixth Circuit’s conclusion

that there was no record evidence that any of the

Respondents had knowledge of a “dangerous condition” and

“refrained from informing” Petitioners is, simply put, wishful

thinking. This conclusion served as the underpinning for the

Sixth Circuit’s decision not to apply the holding of Golec to

this case and not to give Petioners’ an opportunity to present

their case to a jury. Since the Sixth Circuit’s application of the

Michigan Supreme Court’s decision in Travis to the facts of

this case is flawed, the result in this case is similarly flawed

and in conflict with the Travis.

It is well established that the fact that circuit courts have

reached conflicting results on an issue like the proofs

necessary to show intent in a 1983 action is a substantial

reason for granting certiorari under Supreme Court Rule 10.

Yee v_Edcondido, U.S. (1992). This Court may also grant

certiorari where, as here, there is a need to resolve a conflict

between a circuit court and a state court of last resort or

24

where a lower court has decided a federal question in a way

that conflicts with applicable decisions of this Court. For all

these reasons, the petition in this case should be granted.

II Certiorari Is Warranted Because The Decision

Below Is Predicated on Plain Error

The Sixth Circuit’s finding that the sole basis for

Petitioners’ 1983 claims is the Due process Clause is without

any support in the record and belied by the undisputed facts

in this case. Unlike the plaintiff before this Court in Collins,

Petitioners in the case at bar have never argued that that their

1983 claims were limited to constitutional violations. Rather,

Petitioners have consistently maintained that their 1983

claims are also based on Respondents’ admitted violations of

federal statutory laws like OSHA mandated air monitoring

and did so at pages 18-19 of the appellate brief filed below.

Besides overlooking the arguments made in the appellate

brief below, the Sixth Circuit’s finding overlooks the fact that

a statutory basis for a 1983 claim was argued to the trial

court, which agreed with the argument, stating “So I have to

deny the motion on the 1983 claim. It is not simply based on

the environmental law, but on the law of deliberate

indifference as well.” It is difficult to comprehend how the

Sixth Circuit could have ignored arguments explicitly made

to it by Petitioners and the trial court record. In any event,

the Sixth Circuit’s failure and or refusal to consider

arguments properly before it is plain error.

In rendering its decision, the Sixth Circuit pretty

much ignored or overlooked the Michigan cases cited as

controlling authorities in Petitioners’ brief below with the

exception of Travis. The Sixth Circuit agreed with Petitioners

that the holdings of the case applied to the case at bar, but

misapplied Travis when it took it upon itself to determine one

of the central issues in this case -the existence and weight of

evidence concerning Respondents’ knowledge of a dangerous

condition and failure to inform Petitioners of same. As

25

discussed above, there is evidence in the record from which a

juror could find that each of the individual Respondents was

aware of “dangerous” conditions and failed to provide

Petitioners with information necessary for them to take

precautions for their health, safety and welfare, particularly

since Respondents were not looking out for the safety and

welfare of Petitioners.

The Sixth Circuit's reluctance to deal with the

remainder of the Michigan authorities cited as controlling

authorities in Petitioners’ brief below is understandable.

There simply is no rational basis for distinguishing the cases

cited by Petitioners like: (1) the Michigan Supreme Court's

case in Travis, which as discussed above, if properly applied

to this case would mandate reversal of the trial court’s

decision regarding application of the intentional tort

exception; (2) Palazzola v Karmazin, 223 Mich App 141

(1997), which involved a toxic exposure by workers to a

substance that could be harmful or fatal if ingested or

inhaled, and the court held that a supervisory employee, and

the employer, could be deemed to have “actual knowledge”

that an injury was certain to occur ifa supervisor knew of

the dangers of TCE, knew that the TCE was contained in the

water tank and ordered crew members to make contact with

sludge in the tank despite their hesitation (the precise

situation present in this case with respect to asbestos); and

(3) Gulden v Crown Zellerbach Corp., 890 F.2d 195 (9" Cir

1989), cited with approval by the Michigan Supreme Court as

an example of a case that met Michigan’s intentional tort

exception _and involving a situation where workers were

ordered to scrub a floor knowingly containing PCB’s without

any protections or safeguards after a hazardous waste.

specialist was unsuccessful in removing the PCB’s ( just as

Petitioners were ordered, over protest, to perform floor

preparation work on asbestos tiles that a national carpet

specialist in such matters walked away from).

While this Court normally defers to the construction of a

state statute given by lower federal courts, such deference is

26

not invariably the case, and this Court is particularly

reluctant to so defer where the lower courts have fallen into

“plain error.” Frisby v Schultz, 487 U.S. 474 (1988). Here, the

Sixth Circuit misapplied the Michigan Supreme Court’s

decision in Travis, based on the erroneous assumption that

there was no evidence to support a jury finding that

Respondents knew of a dangerous situation and failed to

inform Petitioners so that that could take steps to protect

themselves.

In addition, the Sixth Circuit ignored and/or overlooked

controlling Michigan precedent cited in Petitioners appellate

brief, which also constitutes “plain error.” It has been

recognized that special and important reasons for the grant of

certiorari are present when lower federal courts have

deprived litigants of their right to a jury determination.

Rogers v Missouri P. R. Co., 352 U.S. 500 esta

CONCLUSION

Suprerne Court Rule 10, which discusses the

considerations governing the grant or denial of certiorari,

emphasizes the necessity of a substantial question before

certiorari will be granted. It declares that certiorari will be

granted “only when there are special and important reasons”

therefore, that as to Federal Courts of Appeal, certiorari may

be granted to resolve conflicts between circuits and that

certiorari may be granted to settle “important” federal law

issues.

There are “special and important” reasons for granting

certiorari in the case at bar. Indeed, this case cries out for

intervention by this Court. Among other things Petitioners

have been exposed to friable asbestos in quantities exceeding

the EPA permissible exposure limit for 10 days in violation of

federal laws requiring air monitoring and training like

Asbestos Manager Fenton received 5 years prior to the

incident at issue in becoming a certified asbestos manager,

yet are without any remedy for covering the cost of medical

27

monitoring recommended by expert with a Masters Degree

from the Harvard School of Public Medicine. Beyond

Petitioners, the Courts and litigants throughout the Country

need to know whether to follow the Second or Sixth Circuit

decision on issues involving intent in a 1983 action so that

justice does not depend on where you live or are a prisoner in

New York or student summer help in Grosse Pointe,

Michigan. Standards obviously need to be articulated further

as the Sixth Circuit appeared confused as to what standard

applied and when. "

The Sixth Circuit’s opinion that there was “no evidence”

to support a jury finding that Respondents were aware of a

dangerous condition and did not inform Petitioners so that

they could take care of themselves is preposterous and

contrary to the unrefuted testimony of Petitioners’ experts

and the fact that not a single one of the Petitioners was told

beforehand that the tiles had tested positive for the presence

of asbestos or to take any special precautions. Similarly, the

Sixth Circuit’s determination that Petitioners’ 1983 claims

were based solely on the Due Process Clause is legal

legerdemain at its best and contrary to the arguments made

in Petitioners’ Appellate brief below and the trial court record

where the court took note that Petitioners’ 1983 claims were

not predicated exclusively on environmental laws. Plainly,

the Sixth Circuit has reversibly erred in making such

determinations and others.

Finally, the decision in this case is contrary to the

Michigan Supreme Court’s admonition in Travis that the

intentional tort exception was not to be construed so

rigorous as to preclude all claims of intentional tort and was

not limited to “true” intentional tort cases. The Sixth Circuit’s

decision in this case virtually eliminates the exception. For all

the reasons noted herein, Petitioners pray that their writ of

certiorari be granted.

28

Respectfully Submitted,

Marina Tramontozzi

Counsel of Record

c/o Curry & Taylor

Suite 520

1112 16” Street, N.W.

Washington, D.C. 20036

(202) 393-4141

la

(any footnotes trail end of each document)

Nos. 00-1763 / 00-1764 / 00-1765

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JESSE UPSHER; ANNIE ABRAHAM; EDWARD BRODZIK;

JEANETTE BRODZIK; HENRY HUCZEK; AURELIA

HUCZEK; STEPHEN KALMUS; CATHERINE KALMUS;

KAREN KOHL; TRACY THACKER; JOHN O'LOUGHLIN,

Plaintiffs-Appellants,

V.

GROSSE POINTE PUBLIC SCHOOL SYSTEM; GROSSE

POINTE BOARD OF EDUCATION; SUZANNE KLEIN;

CHRISTIAN FENTON; TIMOTHY HOWLETT; PAUL PAGEL;

CARL ANDERSON; JACK RYAN; JOHN MILLS; CYNTHIA

PANGBORN; SEARS TAYLOR; MARY BETH HERMAN; JAY

JEFFRIES; STEVE MATTHEWS; ED SHINE; LARRY

YANKAUSKAS, individually and in their respective capacities,

Defendants-Appellees.

January 29, 2002, Argued

April 4, 2002, Decided

April 4, 2002, Filed

COUNSEL:

ARGUED: Philip E. Chaffee, LAW OFFICE OF PHILIP E.

CHAFFEE, Grand Rapids, Michigan, for Appellants.

Timothy D. Wittlinger, CLARK HILL PLC, Detroit, Michigan,

for Appellees.

ON BRIEF: Philip E. Chaffee, LAW OFFICE OF PHILIP E.

CHAFFEE, Grand Rapids, Michigan, for Appellants.

Timothy D. Wittlinger, Evelyn L. Sullen, CLARK HILL PLC,

Detroit, Michigan, for Appellees.

2a

JUDGES:

Before: RYAN and GILMAN, Circuit Judges; POLSTER,

District Judge. *

* The Honorable Dan A. Polster, United States District Judge

for the Northern District of Ohio, sitting by designation.

OPINIONBY:

RYAN

OPINION:

RYAN, Circuit Judge. Jesse Upsher, Annie Abraham, Edward

Brodzik, Henry Huczek, Stephen Kalmus, Karen Kohl, Tracy

Thacker, and John O'Loughlin (hereinafter collectively

referred to as "the plaintiffs") are custodians employed by the

Grosse Pointe Public School System. They brought a 42

U.S.C. § 1983 action against the Grosse Pointe Public School

System, the Grosse Pointe Board of Education, and various

individually named defendants (hereinafter collectively

referred to as "the defendants") for alleged injuries from

exposure to friable asbestos during a carpet removal job at

Grosse Pointe's South High School. Their spouses also

brought derivative claims. The district court entered

summary judgment for the defendants from which the

plaintiffs now appeal.

We must decide whether the plaintiffs' evidence establishes

material issues regarding the defendants’ liability under both

42 U.S.C. § 1983 and the intentional tort exception to the

Michigan Worker's Disability Compensation Act, MICH.

COMP. LAWS ANN. § 418.131(1) (MWDCA). We conclude

that it does not and therefore we will affirm the judgment of

the district court.

I.

FACTUAL BACKGROUND

A.

The Parties

Plaintiffs Annie Abraham, Edward Brodzik, Henry Huczek,

Stephen Kalmus, Karen Kohl, and Tracy Thacker were

.

’

‘

4

;

3a

custodians employed by the Grosse Pointe Public School

System in Grosse Pointe, Michigan. Plaintiffs Jesse Upsher

and John O'Loughlin were students at South High School and

were employed as temporary custodians. Plaintiff Stephen

Kalmus was the foreman and supervised the other

custodians. Plaintiffs Jeanette Brodzik, Aurelia Huczek, and

Catherine Kalmus are spouses of the allegedly injured

custodians who asserted derivative claims of loss of

consortium.

The individually named defendants are: Dr. Suzanne Klein

(assistant superintendent for the School System during the

summer of 1995); Christian Fenton (assistant superintendent

for business and support services and designated asbestos

coordinator for the School System); Paul Pagei (assistant

principal at South High School and administrative supervisor

of custodians); Mary Beth Herman (principal at South High

School); Jay Jeffries (head engineer at South High School);

Dr. Edward Shine (Dr. Klein's. predecessor); Larry

Yankauskas (supervisor of buildings and grounds for the

School System); and named, past and present Grosse Pointe

school board members: Timothy Howlett, Carl Anderson,

Jack Ryan, John Mills, Cynthia Pangborn, Sears Taylor, and

Steve Matthews.

B.

The Incident

In early 1995, Grosse Pointe's South High School determined

that it would replace the carpeting located in the main office

area. Assistant principal Pagel solicited bids from a number

of carpeting suppliers and ultimately selected New York

Carpet World to remove, replace, and install the new

carpeting. After performing initial tests on the viny! floor tile

located beneath the carpeting, New York Carpet World

informed Pagel that it refused to complete the project

because the machine scrapers it used to remove the carpet

might disturb the underlying asbestos-containing tiles.

Thereafter, Pagel met with custodial foreman Kalmus, and

head engineer Jeffries, and instructed them that South High's

custodial staff would complete the carpet removal.

Although the plaintiffs claim that they protested prior to

beginning the work, they nevertheless started removing the

4a

carpet around July 19, 1995. When they started to remove the

carpet, they noticed that some of the underlying vinyl floor

tiles were sticking to the back of the old carpeting. To

remove these tiles, the plaintiffs chiseled, chipped, pounded,

pulverized, hammered, and jackhammered the tiles causing

breakage, flying debris, and dust. The defendants did not

provide the plaintiffs with particulate air vacuums to clean up

the dust and debris or any protective clothing or respirators.

All of the plaintiffs except the two student-plaintiffs had

received two hours of asbestos awareness training, but none

of them had received the additional 14 hours of training

required by the Asbestos Hazard Emergency Response Act of

1986 (AHERA), 40 C.F.R. § 763.92(a)(2), before conducting

activities that would result in the disturbance of asbestos-

containing building materials (ACBM).

The plaintiffs allege that they suffer from respiratory

irritations, posttraumatic stress disorder, and other physical

and psychological problems resulting from their exposure to

potentially harmful levels of friable asbestos. Subsequent

testing conducted by EMSL, an accredited National Voluntary

Laboratory Accreditation Program (NVLP) laboratory,

located in Ann Arbor, Michigan, revealed that the tiles

contained anywhere between 10-25% asbestos. Additionally,

the plaintiffs’ experts reported that as a result of exposure to

the asbestos, the plaintiffs are at a significant increased risk

of developing, inter alia, asbestosis, lung cancer,

mesothelioma, kidney cancer, leukemia, and lymphoma — all

requiring expensive medical monitoring.

The plaintiffs filed a complaint with the Michigan Department

of Public Health, which resulted in citations for: (1) failure to

perform exposure monitoring to determine the airborne

concentrations of asbestos required by the Occupational

Safety and Health Administration (OSHA) Asbestos

Construction Standard, 29 C.F.R. § 1926.1101(f); and (2)

failure to instruct employees in the recognition and

avoidance of unsafe conditions involving asbestos and the

specific asbestos regulations applicable to the worksite that

have been established to control or eliminate the hazards

associated with exposure to asbestos. On February 11, 1998,

the Environmental Protection Agency (EPA) issued a similar

5a

notice of noncompliance pursuant to Section 15 of the Toxic

Substances Control Act (TSCA), as amended, 15 U.S.C. § §

2601-2629, for violations of 40 C.F.R. § 763, Subpart E.

The plaintiffs filed a complaint in the United States District

Court for the Eastern District of Michigan alleging violations

of: (1) the Asbestos Hazard Emergency Response Act of 1986

(AHERA), 15 U.S.C. § § 2641-2656; (2) the Asbestos School

Hazard Abatement Act of 1984 (ASHAA), 20 U.S.C. § § 4011-

4022; (3) Section 7003 of the Resource Conservation and

Recovery Act of 1976 (RCRA), 42 U.S.C. § 6973; (4) the Clean

Air Act (CAA), 42 U.S.C. § § 7401-7671q; (5) the Solid Waste

Disposal Act (SWDA), 42 U.S.C. § § 6901-6992k; (6) the Civil

Rights Act, 42 U.S.C. § 1983; (7) strict liability, gross

negligence, and willful and wanton misconduct; (8) ultra-

hazardous activity; (9) intentional misconduct; and (10)

conspiracy. The defendants moved for partial summary

judgment, following which, the district court dismissed the

plaintiffs’ environmental law claims, concluding that the

plaintiffs had no private right of action and/or that the

plaintiffs had not exhausted their administrative remedies.

The court reserved its ruling on the plaintiffs’ civil rights

claim, the claim of intentional tort, and the accompanying

derivative claims until after discovery. Following discovery

and upon the defendants' renewed motion for summary

judgment, the district court dismissed all of the plaintiffs’

remaining claims. The plaintiffs appeal only the district

court's grant of summary judgment to the defendants on their

42 U.S.C. § 1983 claim and the intentional tort exception to

the MWDCA.

Il.

ANALYSIS

This court reviews a district court's grant of summary

judgment de novo. Owens Corning v. Nat'l Union Fire Ins.

Co. of Pittsburgh, Pa. 257 F.3d 484, 491 (6th Cir. 2001).

Summary judgment is proper "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c); see Nix

v. O'Malley, 160 F.3d 343, 347 (6th Cir. 1998). In reviewing a

6a

motion for summary judgment we draw all justifiable

inferences in a light most favorable to the nonmoving party.

Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 837

(6th Cir. 2002).

A.

42 U.S.C. § 1983

First, we review whether the district court erred when it

concluded that the plaintiffs' evidence did not sufficiently

establish a material issue of fact with regard to the

defendants' liability under 42 U.S.C. § 1983. Section 1983

provides, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and.

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress... .

42 U.S.C. § 1983 (West Supp. 2001).

Cousequently, to state a viable claim under 42 U.S.C. § 1983,

plaintiffs must produce evidence that: (1) they were deprived

of a night, privilege, or immunity secured by the federal

Constitution or law of the United States, and (2) the

deprivation was caused by a person while acting under the

color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57,

56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978); see Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 120, 117 L. Ed. 2d 261, 112

S. Ct. 1061 (1992). Section 1983 is not self-executing, but

rather provides a remedy "for vindicating federal rights

elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271,

127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (citation omitted). The

Supreme Court has cautioned courts to carefully scrutinize

so-called substantive due process claims brought under §

1983 "because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended." Collins,

503 U.S. at 125. "It is important, therefore, to focus on the

allegations in the complaint to determine how [the plaintiff]

describes the constitutional right at stake and what the

7a

[governmental actor] allegedly did to deprive |the plaintiff] of

that right." Id.

We begin, therefore, by looking at how the plaintiffs describe

the constitutional right at stake in their complaint. The

plaintiffs allege that the defendants, in ordering the plaintiffs

to remove the asbestos-containing materials, caused injury to

the plaintiffs which was "willful, wanton, malicious and

demonstrated complete, utter and reckless disregard for

[their] health and safety," in violation of § 1983. In their

appellate briefing, the plaintiffs clarify that their § 1983 claim

rests on Section 1 of the Due Process Clause of the

Fourteenth Amendment, specifically the substantive

component that protects against deliberate decisions of

government officials to "deprive any person of life, liberty, or

property, without due process of law . .. ." U.S. Const. amend.

XIV, § 1. We conclude that a "fair reading" of the plaintiffs'

complaint, unlike the complaint in Collins, does allege a

willful violation. See Collins, 503 U.S. at 125.

Our next inquiry, therefore, is whether the plaintiffs' proof is

sufficient as a matter of law to state a question of fact

regarding the defendants' liability under 42 U.S.C. § 1983.

This court made clear in Lewellen v. Metropolitan

Government of Nashville and Davidson County, Tenn., 34

F.3d 345 (6th Cir. 1994), that in a non-custodial setting, in

order to establish liability for violations of substantive due

process under § 1983, a plaintiff must prove that the

governmental actor either intentionally injured the plaintiff or

acted arbitrarily in the constitutional sense. Id. at 350-51; see

Gazette v. City of Pontiac, 41 F.3d 1061, 1067 (6th Cir. 1994).

The Lewellen court expressed doubt as to whether, in a non-

custodial case, "deliberate indifference" could give rise to a

violation of substantive due process. Lewellen, 34 F.3d at 350

n.4; see Stemler v. City of Florence, 126 F.3d 856, 869 (6th

Cir. 1997). We point this out because the district court, in

ruling on the defendants' initial motion for partial summary

judgment, stated that "the 1983 claim . . . could possibly go

forward as a case of deliberate indifference." We believe the

more exact standard, announced in Lewellen, is that in order

to succeed on a § 1983 claim in a non-custodial setting, a

plaintiff must prove either intentional injury or ‘arbitrary

8a

conduct intentionally designed to punish someone - e.g.,

giving a worker ‘a particularly dangerous assignment in

retaliation for a political speech . . . or because of his or her

gender." Lewellen, 34 F.3d at 351 (quoting Collins, 503 U.S. at

119). Or, as stated in Stemler, a plaintiff must prove

"conscience shocking" behavior. Stemler, 126 F.3d at 869

(quoting Collins, 503 U.S. at 128).

The plaintiffs urge that the Second Circuit's decision in

LaBounty v. Coughlin, 137 F.3d 68 (2d Cir. 1998), requires a

reversal of the district court's judgment; however, we

conclude that our decision in Lewellen demands the opposite

result. In Lewellen, this court considered whether an injured

employee could maintain a 42 U.S.C. § 1983 claim after the

government decided to build a school in the immediate

vicinity of a high voltage conductor line. The plaintiff-

employee in Lewellen argued that "if negligence lies at one

end of a spectrum and intent at the other . . ., the conduct of

the defendants . .. was far enough away from negligence, and

close enough to intentional infliction of bodily injury, to

constitute a violation of the Constitution." Lewellen, 34 F.3d

at 349 (internal citation omitted). Despite uncontested

evidence that the applicable safety and electrical code

standards had been violated, this court upheld the district

court's grant of summary judgment in favor of the

government, reasoning that "the defendants obviously did not

make a deliberate decision to inflict pain and bodily injury .. .

. The defendants may have been negligent, but it is now firmly

settled that injury caused by negligence does not constitute a

‘deprivation' of any constitutionally protected interest." Id. at

348 (citing Collins, 503 U.S. at 125-27; DeShaney v.

Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201-02,

103 L. Ed. 2d 249, 109 S. Ct. 998 (1989); Daniels v. Williams,

474 U.S. 327, 332, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)). The

Lewellen court recognized that, even assuming that the

defendants had been "deliberately indifferent to

‘unreasonable risks of harm,'" the defendants would not be

liable for a constitutional violation as contemplated by

Collins. Lewellen, 34 F.3d at 351.

Similarly, here, we cannot find, nor was our attention invited

to, any evidence in the record which suggests that any of the

9a

defendants made a deliberate decision to inflict pain or

bodily injury on any of the plaintiffs. Neither is there proof

that the defendants engaged in arbitrary conduct

intentionally designed to punish the plaintiffs: — conduct

which we have recognized may result in the deprivation of a

constitutionally protected interest. Id. Without more, we

conclude that the plaintiffs' evidence establishes, at best, a

case sounding in negligence and not a constitutional tort

under § 1983.

B.

MICH. COMP. LAWS ANN. § 418.131(1)

We next consider whether the district court erred when it

concluded that the plaintiffs' evidence did not sufficiently

establish a material issue of fact with regard to the

defendants’ liability under the intentional tort exception to

the MWDCA.

As we have said, the plaintiffs' § 1983 claim fails because, in

part, they were not able to prove an intentional injury. We

recognize it would be anomalous if the plaintiffs' MWDCA

claim did not likewise fail, but we nevertheless offer a brief

analysis of why, in our estimation, the plaintiffs' proof does

not sufficiently state an intentional tort as specifically defined

by the MWDCA. :

In the early twentieth century, the Michigan legislature

implemented a no-fault workers' compensation system as the

exclusive remedy for employees injured while on the job.

1912 (1st Ex. Sess.) PA 10, part 1, § 4; 1915 CL 5426.-In

exchange, employees gave up the right to sue their employers

for certain occupational injuries. Bazinau v. Mackinac Island

Carriage Tours, 233 Mich. App. 743, 593 N.W.2d 219, 222

(Mich. Ct. App. 1999). Largely in response to the Michigan

Supreme Court's decision in Beauchamp v. Dow Chemical

Co., 427 Mich. 1, 398 N.W.2d 882 (Mich. 1986), the Michigan

legislature amended the MWDCA, excepting intentional torts

from MWDCA's exclusive remedy provision. Travis v. Dreis

& Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132, 139 (Mich.

1996). The amended statute provides, in relevant part:

The right to the recovery of benefits as provided in this act

shall be the employee's exclusive remedy against the

employer for a personal injury or occupational disease. The

10a

only exception to this exclusive remedy is an intentional tort.

An intentional tort shall exist only when an employee is

injured as a result of a deliberate act of the employer and the

employer specifically intended an injury. An employer shall

be deemed to have intended to injure if the employer had

actual knowledge that an injury was certain to occur and

willfully disregarded that knowledge. The issue of whether an

act was an intentional tort shall be a question of law for the

court.

MICH. COMP. LAWS ANN. § 418.131(1) (emphasis added).

In the seminal case construing the statute, the Michigan

Supreme Court interpreted the amended statute as providing

two avenues whereby injured employees can prove an

intentional tort. Travis, 551 N.W.2d at 141-43. The first

sentence of the intentional tort exception provides: "An

intentional tort shall exist only when an employee is injured

as a result of a deliberate act of the employer and the

employer specifically intended an injury." MICH. COMP.

LAWS ANN. § 418.131(1). The Travis court held that this

sentence requires that an employee prove that his employer

deliberately acted or failed to act with the purpose or

inflicting an injury upon the employee. Travis, 551 N.W.2d at

141-42.

An employee can also establish an intentional tort by proving

that "the employer had actual knowledge that an injury was

certain to occur and willfully disregarded that knowledge."

MICH. COMP. LAWS ANN. § 418.131(1). This second avenue

of proof is "a legislative recognition of a limited class of cases

in which liability is possible despite the absence of a classic

intentional tort and as a means of inferring an employer's

intent to injure from the surrounding circumstances in those

cases." Travis, 551 N.W.2d at 143. This approach requires that

an employee show that his employer (1) had "actual

knowledge"; (2) that an injury was "certain to occur"; and (3)

"willfully disregarded that knowledge." MICH. COMP. LAWS

ANN. § 418.131(1); see Travis, 551 N.W.2d at 143.

The district court concluded:

There is no question of any fact raised concerning specific

intent of the Defendants to cause any injury to the Plaintiffs,

lla

and there's also no question of fact raised of any actual

knowledge by the Defendants that an injury was certain to

occur, and that they willfully disregarded such knowledge in

proceeding to the work assignments of the Plaintiffs.

The plaintiffs did not present any direct evidence that the

defendants intended to injure them, but instead offered

circumstantial evidence to prove that the defendants had

actual knowledge that injury was certain to occur and that

the defendants willfully disregarded that knowledge. Our

review, therefore, focuses on the district court's conclusion

as it relates to this second avenue of establishing an

intentional tort — whether the defendants had actual

knowledge that injury was certain to occur and willfully

disregarded that knowledge.

The plaintiffs rely upon Golec v. Metal Exchange

Corporation, 551 N.W.2d 132 (Mich. 1996), the companion

case to Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 551

N.W.2d 132, a case the Michigan Supreme Court concluded fit

within the narrow confines of the MWDCA exception. We do

not agree, however, that Golec controls. In Golec, the

plaintiff-employee sued for injuries he sustained after an

explosion "showered" him with molten aluminum after he

loaded wet scrap metal containing aerosol cans into a

furnace. Golec, 551 N.W.2d at 136-37. Three hours before this

explosion a similar, minor explosion occurred, resulting in

slight burns to the plaintiff's left hand. 551 N.W.2d at 137.

_ After this earlier, minor explosion, the plaintiff notified the

shift leader who, in turn, notified his immediate supervisor.

Id. The supervisor ordered the plaintiff to return to work. Id.

The Michigan court held:

When an employer subjects an employee to a continuously

operative dangerous condition that it knows will cause an

injury, yet refrains from informing the employee about the

dangerous condition so that he is unable to take steps to keep

from being injured, a factfinder may conclude that the

employer had knowledge that an injury is certain to occur.

551 N.W.2d at 145. The court consequently affirmed denial of

the defendant's motion for summary judgment because the

12a

"plaintiff [] presented evidence that, despite knowledge of the

earlier explosion, defendant failed to remedy the condition

that caused it." 551 N.W.2d at 148.

Here, however, even if we assume the asbestos-containing

tiles constituted a "continuously operative dangerous

condition," a fact we do not resolve, there is no evidence that

any of the defendants knew this condition would cause injury

and refrained from informing the plaintiffs. The supervisor in

Golec ordered the plaintiff to return to work with full

knowledge that the operating condition had recently resulted

in an injury-causing explosion. Here, the plaintiffs' proof

shows merely that: (1) the defendants (and we note only

some of the individually named defendants) knew of the

general dangers associated with asbestos exposure; (2) the

defendants did not provide adequate training regarding the

proper method for removing asbestos-containing tiles; and

(3) the defendants did not provide adequate protective

devices such as clothing, air respirators, air monitoring, and

the like. While the defendants' actions may have been

negligent, or even grossly negligent, we conclude that the

plaintiffs' proof fails to establish that the defendants had

actual knowledge that injury was certain to occur and

willfully disregarded that knowledge. The plaintiffs,

therefore, are subject to the exclusive remedies provided

under the MWDCA and may not recover in this action.

Ii. .

CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

13a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION |

ANNIE ABRAHAM; EDWARD BRODZIK; JEANETTE

BRODZIK; HENRY HUCZEK; AURELIA HUCZEK; STEPHEN

KALMUS; CATHERINE KALMUS; KAREN KOHL; TRACY

THACKER;

Plaintiffs-Appellants,

V.

GROSSE POINTE PUBLIC SCHOOL SYSTEM; GROSSE

POINTE BOARD OF EDUCATION; SUZANNE KLEIN:

CHRISTIAN FENTON; TIMOTHY HOWLETT; PAUL PAGEL;

CARL ANDERSON; JACK RYAN; JOHN MILLS; CYNTHIA

PANGBORN; SEARS TAYLOR; MARY BETH HERMAN; JAY

JEFFRIES; STEVE MATTHEWS; ED SHINE; LARRY

YANKAUSKAS, individually and in their respective capacities,

Defendants-Appellees.

ORDER

At a session of said Court held in the Theodore Levin

United States Courthouse, in the City of Detroit, Wayne

County, Michigan on: MAY 30, 2000

PRESENT: Hon. Anna Diggs Taylor

This matter having come before the Court on

Defendants’ Renewed Motion for Summary Judgment, for the

reasons stated on the record at a hearing held on Monday,

May 8, 2000, and the Court being fully advised in the

premises;

IT IS HEREBY ORDERED that Defendants’ renewed

motion for summary judgment is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Complaint

is dismissed with prejudice.

l4a

SO ORDERED.

15a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JESSE UPSHUR,

Plaintiff,

V.

GROSSE POINTE PUBLIC SCHOOL SYSTEM; GROSSE

POINTE BOARD OF EDUCATION; SUZANNE KLEIN;

CHRISTIAN FENTON; TIMOTHY HOWLETT; PAUL PAGEL;

_ CARL ANDERSON; JACK RYAN; JOHN MILLS; CYNTHIA

PANGBORN; SEARS TAYLOR; MARY BETH HERMAN; JAY

JEFFRIES; STEVE MATTHEWS; ED SHINE; LARRY

YANKAUSKAS, individually and in their respective capacities,

Defendants-Appellees.

DEFENDANT'S RENEWED MOTION FOR SUMMARY

JUDGMENT BEFORE THE HONORABLE ANNA DIGGS

TAYLOR, JUDGE

Monday, May 8, 2000 - Detroit, Michigan

this. “I think the answer to your question is that for purposes

of determining their need for medical monitoring, that these

studies clearly illustrate the increased risk of lung cancer

with asbestos exposure, whether it’s work-related, non-work-

related environmental asbestos exposure, and that the fact

that on is exposed to a level above what OSHA believes is a

permissible exposure limit, indicates, for my purposes as an

occupational environmental medicine doctor, that I can

safely provide an opinion that these individuals require

medical monitoring.”

And based upon the violation of the PEL set by the

EPA, he’s concluded that they have increased risk of a

number of asbestos-related diseases. Some of them are

response-related; some of which are not, Your Honor. Thank

you.

16a

THE COURT: Thank you. Anything else?

MR. WITTLINGER: No proof of intent.

THE COURT: This is a renewal of a motion that was

made earlier for summary judgment in this case, and which

the Court, at that time, denied on the basis that the Plaintiff

should have opportunity to make complete discovery on their

questions that are particularly relevant here of intent, and the

facts that will take this case out of the coverage of the

Michigan Workers’ Compensation law, or other law

pertaining to simple negligence.

Discovery has now been concluded, and | think for all

of the reasons that have been briefed and answered — briefed

and argued by the Defendant, the Court is constrained to

grant the motion for summary

judgment.

There is no question of any fact raised concerning

specific intent of the Defendants to cause any injury to the

Plaintiffs, and there’s also no question of fact raised of any

actual knowledge by the Defendants that an injury was

certain to occur, and that they willfully disregarded such

knowledge in proceeding to the work assignments of the

Plaintiffs.

Also, there is no question of fact raised as to an actual

injury presented by any of the Plaintiffs.

For those reasons, and all the others that the

Defendant has variably briefed and argued, I have to grant the

motion for summary judgment.

MR. WTTTLINGER: Thank you, Your Honor.

MR. CHAFFEE: Thank you.

THE COURT: Present an order, would you?

17a

MR. WITTLINGER: I will. (Proceedings concluded at

11:01 a.m.)

at lal

ee Ea EP eee

0

a

i

4

7

.