CHARLESTON (Legal Newsline) – A plaintiff in a personal injury case against Wal-Mart has had his case dismissed by the United States District Court for the Southern District of West Virginia.

The Plaintiff, Dwight Graley, Sr. complained he was “overcome by fumes” that were due to tile being laid at a Wal-Mart store in which he was shopping. On June 10, 2011, he filed suit against Wal-Mart and the construction company in the Circuit Court of Kanawha County.

Graley alleged that he “was hospitalized and sustained injuries of a severe and permanent nature” and continued to “suffer emotional distress, anguish, sorrow, grief, psychological and emotional trauma, and loss of enjoyment of life, among other damages.”

Wal-Mart and the construction company, Goins Rash & Cain, filed a notice of removal to federal court on Nov. 16, 2011, because neither Wal-Mart nor Goins Rash & Cain are citizens of West Virginia and because, although the complaint does not specify monetary damages sought, it was obvious from Graley’s account of his injuries, the amount “in controversy” would exceed $75,000 – the baseline amount required for a federal court claim.

Subsequently, the defendants filed a Motion for Summary Judgment alleging that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Although Graley did not file a response to the Wal-Mart summary judgment motion and “the failure of the party to respond to a summary judgment motion may leave uncontroverted those facts established by the motion,” the court still had to review the motion to see if the defendants were still “entitled to a judgment as a matter of law.”

Chief Judge Joseph R. Goodwin wrote, “As I have previously noted, “[i]n toxic tort litigation, a plaintiff must establish by a preponderance of evidence (1) the presence of the injury-causing substance, (2) that he or she has been exposed to the substance, and (3) that the exposure has caused certain injuries.

“The plaintiff has failed to provide sufficient proof as to any of these three elements. First, the plaintiff has not been able to point to what substance injured him... In fact, during oral arguments, plaintiff’s counsel admitted he lacked the evidence to identify whether the plaintiff was harmed by dust in the air, a chemical compound in the glue, or a chemical compound related to the tile.

“Second, because he does not know what harmed him, the plaintiff has not provided any evidence concerning his exposure to it, such as 'the amount, duration, intensity, and frequency of exposure.'

“Finally, the plaintiff has not provided sufficient evidence that his exposure to the unknown substance is what caused his injury. As the defendants noted, the plaintiff has not provided any evidence that his 'current condition is medically distinguishable' from his earlier health problems, and therefore 'it appears equally likely that Plaintiff’s current condition is either the result of the natural progression of his prior condition, or that his condition is actually unchanged, e.g., his physicians simply prescribed additional treatment, i.e., oxygen, upon his release from the hospital after the incident.'”

Marvin W. Masters and Christopher L. Brinkley of The Masters Law firm represented the plaintiff and Tanya Hunt Handley and John L. MacCorkle of MacCorkle, Lavender & Sweeney represented the defendants.

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