UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN T. GRASS, JR.,

Plaintiff-Appellant,

v.

No. 96-2228

E. I.DUPONT DE NEMOURS AND

COMPANY, INCORPORATED, a Delaware

Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CA-94-472-2)

Argued: May 5, 1997

Decided: June 4, 1997

Before HALL, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Stephen Skeen, South Charleston, West Virginia,

for Appellant. Paula Durst Gillis, SPILMAN, THOMAS & BATTLE,

Charleston, West Virginia, for Appellee. ON BRIEF: David B.

Thomas, SPILMAN, THOMAS & BATTLE, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

In this personal injury action removed to the district court from the

Circuit Court of Kanawha County, West Virginia, John T. Grass, Jr.,

appeals the summary judgment granted to E.I. duPont de Nemours &

Co., Inc. We affirm.

I.

Grass worked at duPont's chemical plant in Belle, West Virginia,

for approximately ten years, until November 18, 1983. Grass's health

has deteriorated since his termination, and he is currently afflicted

with a host of cardiovascular and respiratory ailments; Grass's difficulties are compounded as the result of a debilitating stroke he suffered in early 1995.

Grass believes that duPont, by insisting that he work in extreme

heat and in proximity to certain hazardous materials, is responsible

for his infirmities. He seeks recovery under W. Va. Code § 23-4-

2(c)(2), which excepts from workers' compensation immunity those

employers that act with "deliberate intention" to harm an employee.

II.

As an initial matter, Grass maintains that an action brought pursuant to § 23-4-2(c)(2) arises "under the workmen's compensation laws"

of West Virginia and is, therefore, not susceptible to removal to the

district court. See 28 U.S.C. § 1445(c). He asks that we reconsider our

decision to the contrary in Arthur v. E.I. duPont de Nemours & Co.,

58 F.3d 121, 128 (4th Cir. 1995). We must decline Grass's request,

for we are bound to faithfully apply circuit precedent until it is either

overruled en banc or superseded by a decision of the Supreme Court.

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Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 337 n.7 (4th Cir.

1996).

III.

Grass next asserts that the district court abused its discretion by not

enforcing against duPont Fed. R. Civ. P. 26(a)(1), which dictates that

all parties to a civil action disclose, more or less concurrently, certain

information at the initial stages of discovery. The plain language of

the rule, however, permits its default requirements to be amended by

stipulation of the parties, and that is precisely what occurred here. On

September 25, 1995, the parties filed with the district court a report

of their discovery planning meeting, held pursuant to Fed. R. Civ. P.

26(f), wherein it was agreed that

[t]he plaintiff will make initial disclosures as required by

Rule 26(a)(1) . . . on or before October 9, 1995. Such disclosures . . . will include . . . (1) a list of the specific chemical(s) to which the plaintiff was exposed, (2) the location of

each such chemical exposure, (3) the time and duration of

each such chemical exposure, (4) the resulting disease process, and (5) proof of causation of each disease process. . . .

The Defendant will make initial disclosures thirty days after

plaintiff has provided initial disclosures.

(emphasis supplied). Grass did provide some information to duPont,

but, as the district court found, these disclosures fell short of what the

agreement required. Consequently, duPont was not compelled to

make any disclosures at all.

Moreover, Grass, through counsel, represented to the district court

that further discovery would bear neither on duPont's motion for summary judgment nor on his own cross-motion. In so doing, Grass

essentially gambled that the materials already before the court were

sufficient to permit his claims to proceed to trial. Having lost that

gamble, Grass cannot now be heard to complain that he should have

been prevented from placing the bet.

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IV.

Moving finally to the merits of Grass's claims, we affirm the district court's grant of summary judgment to duPont for the reasons

stated by that court in its memorandum opinion. Grass v. E.I. duPont

de Nemours & Co., No. 2:94-0472 (S.D. W. Va., August 7, 1996).*

AFFIRMED

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*Less than four weeks prior to the entry of judgment below, the

Supreme Court of Appeals of West Virginia rendered its decision in

Persinger v. Peabody Coal Co., 474 S.E.2d 887 (W. Va. 1996). The

court in that case, answering questions certified by the United States District Court for the Southern District of West Virginia, held that the

immunity afforded employers under the state's Workers' Compensation

Act does not extend to claims that the employer has fraudulently misrepresented facts to the Workers' Compensation Fund, intending to deprive

the employee of benefits rightfully due. Id. at 897. The district court did

not consider, in light of Persinger, the viability of Grass's claim that

duPont knew about, but fraudulently concealed, a myocardial infarction

that he had allegedly suffered during his employment.

We need not engage in an extensive analysis of Persinger, for it is

clear that the probative value of Grass's evidence is so lacking that he

cannot prevail even if his claim is legally cognizable. The sole evidence

of fraudulent concealment on the part of duPont consists of a notation in

the company's records concerning its medical staff's examination of

Grass in 1976. The notation states "Probable increase in cardiac shadow.

Advised to see family physician." (emphasis supplied). On its face, then,

Grass's "evidence" contradicts his theory of liability.

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