UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALVATORE E. ROTA; CONNIE S.

ROTA, individually and on behalf of

and as next friend for CHASITY R.

ROTA, a minor; KRISTI S. ROTA,

Plaintiffs-Appellants,

No. 98-1807

v.

CONSOLIDATION COAL COMPANY, a

corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Frederick P. Stamp, Jr., Chief District Judge.

(CA-96-33-1)

Argued: January 25, 1999

Decided: April 5, 1999

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: J. Michael Benninger, WILSON, FRAME, BENNINGER

& METHENY, P.L.L.C., Morgantown, West Virginia, for Appellants.

Robert Mason Steptoe, Jr., STEPTOE & JOHNSON, Clarksburg,

West Virginia, for Appellee. ON BRIEF: Herbert G. Underwood,
Amy M. Smith, Stephen D. Williams, STEPTOE & JOHNSON,

Clarksburg, West Virginia; Robert M. Vukas, CONSOL, INC., Pittsburgh, Pennsylvania, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Salvatore Rota, his wife, and his two dependent children sued Mr.

Rota's employer, Consolidation Coal Company (Consol) in West Virginia state court, claiming that Consol deliberately exposed Mr. Rota

to a toxic chemical that accelerated permanent damage to his liver.

Consol removed the case to federal court on the basis of diversity of

citizenship and amount in controversy. The district court denied the

Rotas' motion to remand and granted Consol's motion for summary

judgment. We affirm.

I.

Rota worked as an underground coal miner for Consol from 1975

to 1993. In 1988 he was diagnosed with liver disease. In 1990 Rota

began working on a longwall unit where he was required to handle

a hydraulic fluid containing a chemical called Solcenic 3A. Solcenic

3A contains an agent called MIBC. Rota remained with the longwall

unit until 1993, when he injured his back. When he saw a doctor in

1994 to obtain clearance to return to work, Rota was diagnosed with

chronic Hepatitis C. Following that diagnosis, the Rotas filed suit in

West Virginia state court, claiming that Mr. Rota's preexisting liver

condition had been exacerbated by his work in Consol's mines. Specifically, they alleged that Mr. Rota's exposure to Solcenic 3A (containing MIBC) caused his liver disease to advance more quickly than

it otherwise would have. The Rotas sued the company under section

23-4-2 of the West Virginia Code, which allows an employee to

 2
recover from his employer for workplace injury, if the employer, with

"deliberate intention," exposed the employee to a "specific unsafe

working condition." The Rotas did not specify the amount of damages

they sought.

Consol immediately removed the case to federal court, and the

Rotas filed a motion to remand, asserting that the district court lacked

jurisdiction because Consol had not established that the amount in

controversy would exceed $50,000. The district court denied the

motion to remand. After discovery the district court granted Consol's

motion for summary judgment on the grounds that the Rotas' claims

were barred by the statute of limitations and that the Rotas could not

establish the essential elements of a claim under section 23-4-2 of the

West Virginia Code. The Rotas now appeal the district court's summary judgment order and its denial of their motion to remand.1

II.

The Rotas first argue that this case was not properly before the district court because Consol did not show that the Rotas' claims

exceeded the $50,000 value required to establish diversity jurisdiction.2

The Rotas, who did not allege a specific damage figure in their complaint, argue that the district court's estimate of their damages as

greater than $50,000 was speculative. This estimate was particularly

speculative, they add, because any state workers' compensation Mr.

Rota received would have reduced the amount recoverable under section 23-4-2. We disagree with the Rotas' analysis.

Mr. Rota's lost wages for the period in question total more than

$90,000, according to an unrefuted affidavit submitted by Consol. Mr.

Rota responds that he had applied for workers' compensation,3 and a

_________________________________________________________________

1 The motions of the parties to supplement the record on appeal are

granted.

2 At the time of removal, the amount in controversy had to exceed

$50,000 for diversity jurisdiction. Since that time, Congress has

increased the amount to $75,000. See 28 U.S.C. § 1332 (1993 & Supp.

1998); Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,

§ 205 (1996).

3 Mr. Rota's claim for workers' compensation has since been denied.

 3
compensation award would have prevented him from recovering on

his wage claim in this suit. However, jurisdiction is determined as of

the time of removal, see St. Paul Mercury Indemnity Co. v. Red Cab

Co., 303 U.S. 283, 293 (1938) ("[E]vents occurring subsequent to

removal which reduce the amount recoverable . . . do not oust the district court's [diversity] jurisdiction."), and the district court here was

not in a position to forecast the outcome of the workers' compensation claim as of that time.4 Moreover, the Rotas' complaint alleges

other damages including permanent liver injury, medical bills, pain

and suffering, the "loss of ability to enjoy life," and loss of companionship and consortium. These assertions of damage, combined with

Mr. Rota's lost wage claim, establish the required jurisdictional

amount.

III.

The Rotas next argue that the district court erred in granting summary judgment to Consol on the ground that the Rotas failed to establish all of the elements required to prove liability under West

Virginia's "deliberate intention" statute. We also affirm on this issue

because the Rotas have not established that MIBC caused Mr. Rota's

liver condition to deteriorate. Causation is one of the required elements of section 23-4-2 of the West Virginia Code. And although the

Rotas need not show a precise, certain causal link to forestall summary judgment, they still must establish by a "reasonable probability"

_________________________________________________________________

4 There is some debate among the circuits about the proper standard for

assessing the value of an unspecified damage claim. See 14C Charles

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3725, at 89. Some courts have held that the defendant must

prove by a preponderance of the evidence that the amount sought in the

complaint meets the jurisdictional threshold. See e.g., Tapscott v. MS

Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996). Others have

used "legal certainty," "reasonable probability," and even "inverse legal

certainty" standards. See e.g., White v. J.C. Penney Life Ins. Co., 861 F.

Supp. 25, 27 (S.D. W.Va. 1994) (legal certainty); Thompson v. Fritsch,

966 F. Supp. 543 (D.C. Mich. 1997) (reasonable probability); Hale v.

Billups of Gonzales, Inc., 610 F. Supp. 162, 163-64 (D.C. La. 1985)

(inverse legal certainty). This circuit has not addressed the issue. Because

our conclusion in this case would be the same under any of these standards, however, we decline to adopt a particular standard here.

 4
that Consol's chemicals exacerbated Mr. Rota's preexisting liver

injury. See Hovermale v. Berkeley Springs Moose Lodge No. 1483,

271 S.E.2d 335, 340 (W.Va. 1980).

The Rotas have not met their burden under this standard. The

Rotas' gastroenterology expert, Dr. Don Seibert, noted that Mr.

Rota's cirrhotic deterioration was "well within the norm for [his] disease." And although Dr. Seibert noted the "potential for an environmental cofactor," he also testified that he didn't know "[w]hether it

[MIBC] contributed to [Rota's liver disease] in terms of his course."

Dr. Seibert also said that he couldn't "say with a relative degree of

certainty that [MIBC] is an inciting agent," and that "[w]hether it contributed to [the disease] in terms of its course, [he] prefer[red] not to

say no, because [he] d[id]n't know."

Another of the Rotas' experts, Dr. Alan Ducatman, was similarly

equivocal. When asked whether he would testify that MIBC accelerated Mr. Rota's liver disease, Ducatman answered"[u]nknown . . . .

you've asked me to give a yes or no answer to something for which

I don't know the answer and my answer is I don't know and I don't."

Finally, the Rotas' expert toxicologist noted that he was prepared to

testify that MIBC was a toxicologic risk factor, but he offered no

opinion on causation in Mr. Rota's case.

The Rotas note that one of their experts, Dr. Ducatman, considered

MIBC "a risk for the outcome that [Rota] experienced," and that a

report issued by the National Institute of Occupational Safety and

Health stated that while "MIBC is not known to be a liver or kidney

toxin . . . . workers with impaired liver or kidney function should

avoid prolonged exposure" to the chemical. These proffers, however,

are not enough to establish that exposure to MIBC caused Mr. Rota's

liver condition to deteriorate, even under the "reasonable probability"

standard applied on summary judgment.

Because the Rotas failed to establish causation, summary judgment

to Consol was appropriate on their deliberate intention claim under

section 23-4-2 of the West Virginia Code.5 

_________________________________________________________________

5 Because we affirm on the failure to show causation, we need not

reach the statute of limitations question.

 5
IV.

The district court's order denying the motion to remand and its

judgment entered on the award of summary judgment to Consol are

AFFIRMED.

 6