*1 HQ5 WRIGHT, Individually, Louis E. and as
Parent and Next Friend of Jamie L. Carolyn
Wright, Wright, E. Clinton
Wright, Raymond Burton, Appel
lees, INDUSTRIES,
WILLAMETTE
INC., Appellants.
No. 95-4227. Appeals,
United States Court of
Eighth Circuit. 11,
Submitted March 1996. Aug.
Decided 1996.
Rehearing Suggestion Rehearing for
En Sept. Banc Denied 1996. Julian, Rock, AR, argued
Jim L. Little (Janie Willbanks and Michael T. McFarlin Jackson, brief), appellant. on the for Swindoll, Rock, AR, James F. Little ar- (H.L. Slate, brief), gued appellee. on the for *2 1106 sustaining HEANEY, no reasonable inferences MAGILL, tible of and Before Mfg. v. ARNOLD, Wrights’ position. Jacobs Co. See Circuit
MORRIS SHEPPARD
(8th
Co.,
1259,
19 F.3d
1263
Brown
Sam
Judges.
denied,
-,
Cir.),
115 S.Ct.
cert.
-U.S.
ARNOLD, Circuit
SHEPPARD
(1994);
MORRIS
487,
Dakota
L.Ed.2d 399
First
130
Judge.
Paul Fire & Marine Ins.
Nat’l Bank v. St.
(8th Cir.1993);
Co.,
801,
Fed.
2 F.3d
808-09
in this toxic tort
significant issue
most
The
50(b).
R.Civ.P.
Wright fami-
of the
members
case is whether
trial, produced
prevailed
ly, plaintiffs who
course, had the bur
Wrights,
The
of
negligence
to submit
sufficient
in
proving proximate cause
order
den of
they
did not
jury.
find
to the
We
claim
negligence theory. See
under their
recover
judgment
of
reverse
and therefore
Co.,
Packing
F.2d
Anchor
994
v.
Jackson
district court.
Cir.1993)
(8th
1295, 1301-02
(applying Arkan
law);
Brothers Truck Lines v.
Ellsworth
sas
I.
243,
1055, 1057, 437
Canady, 245 Ark.
S.W.2d
cause in Arkansas is
244
Proximate
a fi-
Industries owns
Appellant Willamette
“
which, in a natural and
as a ‘cause
defined
manufacturing plant
the town
near
berboard
damage
sequence, produces
continuous
Arkansas.
in western
Willamette
of Malvern
damage
would not
without which
shavings
pulp and re-
pine wood
takes
” Rogers Armstrong
v.
World In
occurred.’
fiber,
dried.
into a
which is then
fines them
(E.D.Ark.
dus., Inc.,
901,
F.Supp.
904
744
formaldehyde is mixed with
A
of urea
resin
1990)
Jury
(quoting
Instr.Civil 3d
Ark.Model
drying.
undisput-
just prior to
It is
the fiber
501).
ed.
matter,
particulate
plant emits
ed that
formal-
has been treated with
part of which
contends, among other
Willamette
Wrights live a
dehyde, into the air. The
things, that in order to shift the costs of their
plant and claim to
distance from the
short
Wrights had to
Willamette
from a number of afflictions
have suffered
exposure
actual
to a toxic sub
demonstrate
headaches,
throats,
eyes,
watery
{e.g.,
sore
plant at
emitted from Willamette’s
stance
noses, dizziness,
of
running
and shortness
produce
harms like
levels that are known
breath)
emissions
blame on the
Wrights complain.
ones of which the
Wrights brought suit on
from the
emphasis
exposure levels is a
Willamette’s
prevailed
variety of theories and
on their
a
one that is reflected
a number
jury awarded the five
negligence claim. The
See, e.g.,
v.
of
toxic tort cases.
Abuan
recent
$226,250.00 compensa-
plaintiffs a total
(9th
Co.,
329,
3 F.3d
332-34
General Elec.
injuries.
tory damages
personal
for their
denied,
Cir.1993),
1116, 114
cert.
post-verdict
a number of
made
Willamette
1064,
case must the levels beings generally II. as are hazardous to human exposure plaintiff’s actual level of well as the a court’s denial of We review district he toxic substance before to the defendant’s judgment as a matter of law a motion for may or she recover. district applying the same standard that the cases, Wrights cite two Arkansas originally. v. Alcan applied Sherbert Roberts, 551, (8th Ark. 803 Worthington v. 304 Corp., 66 F.3d 967 Cir. Aluminum (1991), 1995). Bell 906 and Southwestern motion for as S.W.2d Willamette’s Smith, Ark. 247 Telephone 220 granted not unless Co. a matter of law should (1952), proposition that suscep for the points way and is S.W.2d all the evidence its
H07
require proof
Arkansas does
of the level
al
bargaining
choice when
parties are in-
Smith,
toxic tort cases.
a
formed and
exchanges
market
possible.
telephone company sprayed vegetation under
may
Whatever
be the considerations that
lines,
telephone
its
after which Mr. Smith’s ought
guide
legislature
in its determina-
died;
vegetation
ate the
cows
and in tion of
*3
general
what
good
the
requires,
Roberts, pesticides
strong
a
wind
drifted
juries,
courts
deciding cases,
tradition-
property
crop
onto Mr. Roberts’s
after a
ally
particularized
make more
inquiries into
nearby fields,
sprayed
following
duster
which matters of cause and effect. Actions in tort
vegetation
Mr. Roberts’s trees and
appeared
for damages
question
focus on the
of whether
damaged.
to have been
We believe that
money
to transfer
from one individual to
plaintiffs’ reliance on these cases is mis-
another, and under common-law principles
placed.
reports
of these cases do not
(like the ones that
recognizes)
Arkansas law
plaintiff
any
reveal whether
proof
offered
that
place
transfer can
only
take
if one indi-
concerning what levels of the relevant chemi-
proves,
vidual
among
things,
other
that it is
might
expected
cal
produce
be
to
appreciable
likely
more
than not
another
that
individual
plants.
to
or
argument
harm
animals
has caused him or her harm.
It is therefore
that defendants make in
simply
this ease was
enough
not
plaintiff
for a
to show that a
previous
advanced in
these
Arkansas
certain
agent
ehemical
sometimes causes the
eases,
they
prece-
are therefore of no
kind of harm that he or she is complaining of.
precise question
dential value on the
minimum,
At a
we think that there must be
concerns us here.
evidence from which the factfinder can con-
legislature might
altogether
A
well
outlaw clude
exposed
was
to levels
ground
a
on
substance
that it is known to
agent
of that
that are known to cause the
appreciable
involve a risk of
harm to human
kind of harm that the plaintiff claims to have
beings,
having
without
precise data on the
Co.,
suffered. See Abuan v. General Elec.
3
question
harm,
of how much
or what kind of F.3d at
require
333. We do not
a mathemat-
harm,
specific
some
amount of that substance
ically precise table equating
expo-
levels of
might reasonably
expected
be
to cause to
harm,
sure with levels of
but there must be
particular
some
persons
kinds of
or even to
evidence from which a
person
average or
ordinary person.
an
an
Such
could conclude that a defendant’s emission
legislation
presumably,
would
ordinary
as an
probably
has
particular plaintiff
caused a
matter,
judicial scrutiny
survive
as a rational
kind of harm of
complains
which he or she
See,
police power.
exercise of the
e.g.,
recovery.
before there can
abe
Co.,
v. Clover
Creamery
Minnesota
449
Leaf
case,
In this
Wrights
while the
456, 464-70,
715, 723-27,
U.S.
101 S.Ct.
66
proved
they
exposed
that
were
to defen
(1981);
L.Ed.2d 659
United States v. Caro
dant’s emissions and that wood fibers from
Co.,
144, 147-54,
tene Prods.
58
house,
defendant’s
were
their
claimed IV. only spec- jury could therefore have The reasons, the foregoing we reverse For the of formal- the amount ulated about whether judgment of the district court. plant to which dehyde from Willamette’s to exposed was sufficient each was HEANEY, Judge, dissenting. Circuit indeed, or, any injuries at their cause jury eight days, an Arkansas listened For (To theory plaintiffs’ of that all. the extent by presented parties. both to the evidence fi- to wood and harm related the causation jury in- to the on was submitted case formaldehyde those the on rather than bers objected by the were not structions that fibers, infirm for the same proof was the deliberation, jury the re- After defendant. reason, namely, failing proof to offer that the family. Wright in favor of the turned verdicts exposed to wood fibers plaintiffs were the district court then moved The defendants injury.) causing capable of Without levels jury notwithstanding the ver- for exposure of to Wil- proving levels hazardous substantially the reasons dict for same formaldehyde, the failed lamette’s appeal. this The district are on raised carry proof at trial on the their burden trial, presided the entire judge, had over who the failed issue of because causation I the believe denied defendant’s motion. the favor of support a inference in judge’s impression first-hand jury’s the and finding against jury’s implicit the Willamette in this should be sustained of the evidence on the causation issue. Therefore, respectfully dissent. I case. plant undisputed It that the Willamette III. is with formal- wood fibers laced emits minute Heaney, opinion, Judge dissenting his undisputed that because dehyde. It is also of this disagrees with our characterization equipment that failed to install Willamette expresses being money, and case as about significantly lowered the emis- would have acknowledge the this “fails to the view that sions, emitted levels the regarding in- important elements the by permitted plant exceeded levels the lawsuits, juries But unless at issue.” and state standards. industry always declaratory judgment, only are seek three-quar- family Wright lives specific within money or some form of either about is uncon- of the There of a mile only of relief that ters Those the kinds relief. ingest tradicted evidence emissions from the them. Willamette failed to install plant Wrights’ proper- like fell “snow” the equipment available to control discharge ty overnight to the extent emissions particulate of this matter in either the solid plant could seen on cars. Fibers from the gaseous or form. The emis- Wrights’ were found air condition- also way sions found to Wrights’ proper- their Wright family by er. The was examined ty. They family’s were found in the air physicians significant and of toxic conditioner, levels importantly, and more in the plant emissions from the found their family’s sputum Competent and urine. medi- sputum Wright family and urine. The suf- testimony presented cal was that stated that headaches, throats, watery fered from sore it probable was more than not that noses, dizziness, eyes, runny shortness illness was formaldehyde. caused breath, treating physician which the testified Thus, complete proximate circle was probably were more than not related to their cause Dr. may may established. Peretti or to the emissions. This testi- prodded have been Wrights’ relate the mony properly received. formaldehyde, did; illnesses to but he jury rejected could his if evidence, Having heard all of the above it did not believe him. jury Wright family’s determined dis- abilities were a direct result of constant Finally, majority dehumanizes the is- *5 formaldehyde exposure to the that was emit- by sues this stating case that the focus on plant. Clearly, ted from the Willamette type eases of this is the transference mon- presented evidence was sufficient to sustain ey. This to acknowledge important fails the verdict. should our substitute regarding elements jury. for that of the responsibility issue and the of Willamette to comply with properly established health and majority argues jury verdict safely standards that can be met install- must set aside because no be scientific stud- ing equipment. state of the art ies were introduced to establish formal- dehyde-laced, appre- minute fibers an involve above, For all of the reasons stated I ciable risk of harm to humans who breathe affirm permit would the district court and them. There are at least two answers this jury to stand. verdict First, argument. there was abundant testi- mony distinguished on hu- effects
man health of dust and other nontoxic air
pollutants formaldehyde. from The former
being largely benign being and the latter Second,
harmful. the State of Arkansas has America, Appellee, UNITED STATES of made determination that it is harmful to v. discharge formaldehyde health to minute Joyce BROWN, Appellant. A. particles gases into the atmosphere. Of course, there must America, Appellee, UNITED STATES way toxins found their into the bodies of the humans, but there was more than sufficient evidence this score. BUCKHANAN, Appellant. Elizabeth disagree majority’s I do not with the state- Nos. 95-4170. ment that there must be evidence Appeals, United States Court of could jury find that Eighth Circuit. exposed to levels of that are Wright known to cause the harm that June Submitted 1996. family fact, however, suffered. the re- Aug. Decided 1996. quired produced. The State of Arkansas has determined that no shall
emit because such emissions dangerous persons to the health of who