Melissa Ann Bobo v. Tennessee Valley Authority, 855 F.3d 1294

Background

James "Neal" Bobo worked at TVA's Browns Ferry plant (1975–1997); his duties included sweeping insulation residue that contained asbestos. TVA documents and witness testimony established asbestos use and fiber accumulation on his clothes.
Barbara Bobo laundered his work clothes twice weekly for ~22 years; she testified shaking them out produced visible dust and inhalation exposure. She was diagnosed with malignant pleural mesothelioma in 2011 and died in 2013.
Plaintiffs sued TVA for take-home asbestos exposure (negligence among other claims); after a three-day bench trial the district court found TVA liable and awarded ~$3.39 million (later adjusted). TVA appealed.
On appeal TVA challenged (inter alia) consideration of a state-court deposition, admissibility of plaintiffs’ expert causation testimony, whether Alabama law imposes a duty to prevent take‑home exposure, the causation/exposure standard, the discretionary-function defense, and the recoverability of medical bills written off by providers.
The Eleventh Circuit affirmed liability: it held (1) any error in considering the deposition was harmless; (2) the plaintiffs’ expert testimony was admissible; (3) under Alabama law TVA owed a duty to prevent foreseeable take‑home asbestos exposure; (4) the evidence met causation standards; and (5) TVA was not shielded by the discretionary-function exception.
The court vacated and remanded only the medical‑expenses portion of damages for recalculation to exclude amounts written off by providers (not paid by plaintiff or insurer).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Mr. Bobo’s state-court deposition	Deposition corroborative of exposure; admissible in context	District court erred by considering deposition not in federal record	Any error was harmless—ample other admissible evidence of exposure
Admissibility/reliability of expert causation testimony (Dr. Mark)	Expert reasonably explained dose-response, relied on literature, tied facts to opinion	Opinion unreliable because it allegedly treats any asbestos exposure as causal	Admissible—opinion explained limits, cited literature, and bench-trial factfinder less constrained
Duty under Alabama law to prevent take‑home asbestos exposure	Duty exists where harm was foreseeable and public policy favors protection	TVA argued no duty or that recognizing duty improperly expands Alabama law	Duty exists where injury is foreseeable and policy considerations support it; Alabama likely would impose it here
Causation / exposure standard	Plaintiffs: substantial-factor standard (Sheffield/Gant) suffices given regular laundering and testimony of heavy dust	TVA: plaintiffs must meet Lohrmann frequency-regularity-proximity test and provide industrial-monitoring data	Evidence here satisfies either standard; district court properly found TVA exposure a substantial factor in causing mesothelioma
Discretionary-function exception	TVA’s failure to follow mandatory asbestos policies was non-discretionary	TVA claimed conduct involved discretionary government functions	Exception inapplicable where TVA violated specific mandatory regulations/policies requiring non‑discretionary measures (lockers, separate laundering)
Recoverability of written-off medical bills	Plaintiffs sought full billed amounts including write-offs	TVA: written-off amounts not recoverable because plaintiff did not pay and is not liable	Written-off amounts are not recoverable under Alabama law; remand to recalculate medical-expense award excluding write-offs

Key Cases Cited

Berkovitz v. United States, 486 U.S. 531 (1988) (framework for discretionary‑function exception)
Gaubert v. United States, 499 U.S. 315 (1991) (application of discretionary‑function test)
Sheffield v. Owens‑Corning Fiberglas Corp., 595 So. 2d 443 (Ala. 1992) (Alabama standard that defendant’s product must be shown to be a substantial factor)
Owens‑Corning Fiberglas Corp. v. Gant, 662 So. 2d 255 (Ala. 1995) (addressing sufficiency of exposure evidence under Sheffield)
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (frequency‑regularity‑proximity test for circumstantial exposure evidence)
Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973) (medical testimony recognizing cumulative effect of asbestos exposures)
Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008) (recognizing duty to prevent foreseeable take‑home asbestos harm)
Kesner v. Superior Court, 384 P.3d 283 (Cal. 2016) (California Supreme Court imposing duty to prevent take‑home exposure)
Kruse v. Vanderbilt Minerals, LLC, 189 So. 3d 42 (Ala. 2015) (Alabama Supreme Court on exposure proof and choice between Sheffield and Lohrmann‑type standards)