Bobo v. AGCO Corporation, 5:12-cv-01930

Background

Plaintiff Barbara Bobo (now deceased; estate substitution ordered) sued TVA after developing pleural mesothelioma allegedly from laundering her husband James Bobo’s TVA work clothes; James worked at TVA’s Browns Ferry Nuclear Plant from 1975–1997 and regularly returned home in dusty clothes.
TVA had internal asbestos standards (Hazard Control Standard 407, Nuclear Power Safety Manual, Browns Ferry Standard Practice 14.45) and implemented varying policies from the 1970s–1980s; OSHA asbestos standards evolved in the 1970s and Executive Order 12196 (1980) required federal agencies to follow OSHA.
Key factual disputes concern whether TVA: (1) adopted OSHA-prescribed exposure limits and monitoring methods; (2) performed required monitoring, provided protective clothing/lockers, and administered annual medical exams; and (3) trained employees about asbestos hazards.
TVA moved for summary judgment invoking the discretionary-function doctrine (immunity for policy-based governmental decisions) and argued lack of proof linking TVA exposures to plaintiff’s mesothelioma; the court addressed the discretionary-function motion first.
The court applied the two-step Gaubert/Berkovitz framework to decide which TVA decisions were protected as discretionary policy choices and which were mandatory directives (non-discretionary) actionable at law.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to warn spouses of asbestos risks	TVA should have warned spouses like Bobo of take-home asbestos hazards	Decision not to warn is policy-based and immune under discretionary-function doctrine	Dismissed — failure-to-warn claim barred by discretionary-function doctrine
Compliance with OSHA permissible exposure limits	TVA policies (e.g., Browns Ferry 14.45) violated mandatory OSHA exposure limits (TVA used 5 f/cc vs OSHA 2 f/cc)	TVA decisions about safety thresholds are discretionary	Summary judgment DENIED — court found a mandatory OSHA exposure limit applicable, so discretionary-function does not shield TVA for adopting a noncompliant limit
Monitoring and recordkeeping of employee asbestos exposure	TVA failed to conduct required quantitative air monitoring, semiannual sampling, and retain monitoring records	Monitoring program design is discretionary	Summary judgment DENIED — TVA violated mandatory monitoring directives (and negligent implementation of its own monitoring policy) for periods at issue, so not discretionary
Protective equipment, clothing, lockers, and annual medical exams	TVA failed to provide respirators, protective clothing/lockers, and annual medical exams as required by TVA policies/OSHA	Provision and implementation of protective measures involve policy choices and day-to-day discretion	Summary judgment DENIED (genuine issues remain). Court held decisions to provide equipment/lockers/exams were mandatory to the extent the rules used "shall"; implementation evidence disputed so claims survive.
Employee training on asbestos hazards	TVA failed to train employees (no records; co-worker testimony)	Training content, scope, and implementation are discretionary policy matters	Dismissed — claims about lack of training are protected by the discretionary-function doctrine

Key Cases Cited

United States v. Gaubert, 499 U.S. 315 (1991) (established two-part test for discretionary-function exception)
Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary-function exception in FTCA applies unless statute/regulation "specifically prescribes" course of action)
Varig Airlines v. United States, 467 U.S. 797 (1984) (discretionary-function doctrine marks boundary of liability and focuses on nature of conduct)
Indian Towing Co. v. United States, 350 U.S. 61 (1955) (once gov't establishes a service/policy, negligent implementation may be actionable)
Johns v. Pettibone Corp., 843 F.2d 464 (11th Cir. 1988) (TVA power-generation decisions can be covered by discretionary-function doctrine)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard: movant entitled to judgment if no genuine issue of material fact)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for determining genuine disputes of material fact at summary judgment)