Wildewood Litigation, In re
| Decision Date | 18 April 1995 |
| Docket Number | No. 93-2459,93-2459 |
| Parties | In re WILDEWOOD LITIGATION. Bruce K. BENESH, Individually; Susan V. Benesh, Individually; Sharon C. Helms, Individually; Wayne Sharpe; Del A. Rosebrock, Individually; Deborah T. Rosebrock, Individually; David C. Marble; Caron H. Marble, Individually; Ronald L. Taylor; Deanna W. Lanier-Taylor; Salvatore G. Cilella, II, Individually; Mary Winifred Cilella, Individually; Karl V. Doskocil; Mary T. Doskocil; Edward F. Sullivan, Jr., Individually; Eileen B. Sullivan, Individually; Hwa Ja Kim, Individually and as Guardian ad Litem for Soo Yung Kim, a minor under age of 18 years; Duk Yung Kim; Duk Hyun Kim; Duk Jin Kim; Linton S. Boatwright; Harriette M. Boatwright; Gandhi Gondi; Raghava Gondi, Plaintiffs-Appellants, and Bruce K. Benesh and Susan V. Benesh, as Guardians ad Litem for Barbara Grace Benesh, Donna Constance Benesh and John William Benesh, minors under the age of 14 years; James O. Helms, Individually and as Guardian ad Litem for Michael Wayne Helms and James O. Helms, Jr.; Sharon C. Helms, as Guardian ad Litem for Michael Wayne Helms and James O. Helms, Jr.; Del A. Rosebrock and Deborah T. Rosebrock, as Guardians ad Litem for Allyson Rosebrock and Ashley Rosebrock, minors under the age of 14 years; Caron H. Marble, as Guardian ad Litem for Allison Marble, a minor under the age of 18 years; Salvatore G. Cilella, II and Mary Winifred Cilella, as Guardians ad Litem for Peter Cilella, a minor under the age of 18 years; Edward F. Sullivan, Jr. and Eileen B. Sullivan, as Guardians ad Litem for Keith Edward Sullivan, a minor under the age of 18 years; Hwa Yung Kim; Christa C. Helms; Salvatore G. Cilella, III; John Melvin Doskocil; Frank Alan Doskocil; Lauren Elizabeth Sullivan, Plaintiffs, v. AMPHENOL CORPORATION; Allied Signal, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: James Hanjo Lengel, Holler, Olive, Lengel & Garner, Columbia, SC, for appellants. Charles E. Carpenter, Jr., Richardson, Plowden, Grier & Howser, P.A., Columbia, SC, for appellees. ON BRIEF: William R. Applegate, West Columbia, SC; J.C. Coleman, Columbia, SC; Cheryl F. Perkins, Columbia, SC; Russell H. Putnam, Jr., Columbia, SC, for appellants. F. Barron Grier, III, Michael A. Pulliam, Deborah Harrison Sheffield, Richardson, Plowden, Grier & Howser, P.A., Columbia, SC, for appellees.
Before WIDENER, WILKINSON and WILKINS, Circuit Judges.
Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judges WILKINSON and WILKINS joined.
Appellants (plaintiffs), 11 property owners (the owners), brought suit against Amphenol and Allied Signal, (Amphenol) alleging nuisance, trespass, and negligence for the release by Amphenol's plant of trichloroethane (TCE) into the groundwater in and surrounding the owners' properties. The jury returned a verdict for Amphenol. The owners appeal from the district court's denial of their motions for judgment as a matter of law and for new trial, as well as several other issues. We affirm the district court's judgment in all respects.
Plaintiffs are property owners in the WildeWood subdivision near Columbia, South Carolina, all surrounding a small man-made lake. The subdivision is located at the bottom of a hill on which defendants' predecessor in 1967-68 built and began operating the plant in question. The process engaged in by the plant included the use of TCE, a volatile and evaporative organic chemical. After the TCE was used, it was put into a percolation basin, a depression dug in the ground, and left to evaporate. Amphenol expected that any amounts that did not evaporate would be "bound in the soil" and "would not move to other groundwater systems." This process was used from 1968 to May 1979, and an estimated 352 gallons of TCE were discharged into the pit during this time.
In 1983, Amphenol learned that TCE had entered the groundwater beneath the percolation basin, and by 1986 it was clear that the TCE was migrating in a subterranean plume, 1 in the direction of the subdivision. Between 1988 and 1991, the plaintiffs learned of the TCE plume. The South Carolina Department of Health and Environmental Control (DHEC) installed monitoring wells and posted no swimming signs near a small stream in the subdivision. TCE levels on some of the owners' properties and in the lake fall within a range near or above EPA and DHEC drinking water contamination levels. The drinking water of the plaintiffs, however, is not contaminated by the TCE at issue here.
In June 1971, the Pollution Control Authority (PCA), the predecessor of the DHEC, implemented a regulation prohibiting any waste amenable to treatment or control from being discharged into the waters of the State without such treatment or control. See Rules and Regulations of the Pollution Control Authority, South Carolina Acts and Joint Resolutions, 1887 p 3 (1971). Amphenol never treated TCE to alter its chemical composition before releasing it into the percolation basin, and does not deny that TCE is amenable to treatment or control.
The owners produced the testimony of an expert real estate appraiser describing 60% to 80% decreases in the values of the plaintiffs' properties as the result of the TCE plume.
The owners commenced suit against Amphenol on theories of, inter alia, negligence, trespass, and nuisance, seeking compensatory and punitive damages. The suits were consolidated for trial. The court excluded evidence proffered by the owners regarding a preliminary remediation plan devised by Amphenol to clean up the TCE in the subdivision. The district court also excluded the owners' expert testimony regarding a certain allegedly comparable sale in the subdivision. Amphenol was permitted over objection to introduce evidence comparing the risks of TCE-contaminated water to the risks of Columbia drinking water generally.
The district court directed verdicts for Amphenol on the nuisance and punitive damages claims, and the negligence and trespass claims were submitted to the jury. During deliberations, the jury requested that the court define the term negligence, and after a hearing, the court gave the jury the definition of simple negligence.
The jury returned verdicts for Amphenol on all claims. The district court denied the owners' motion for judgment as a matter of law or a new trial.
The owners appeal the denial of their post-trial motions, the district court's response to the jury's request for clarification, the directed verdicts on the nuisance and punitive damages claims, and the abovementioned evidentiary determinations. We address these issues in turn.
There is some dispute as to the appropriate standard of review of the first two issues raised by the owners, whether the owners were entitled to judgment as a matter of law or a new trial on the question of negligence per se. The grant or denial of judgment as a matter of law is reviewed in this circuit de novo. White v. County of Newberry, 985 F.2d 168, 172 (4th Cir.1993). We must determine whether there is substantial evidence in the record upon which the jury could find for Amphenol. White, 985 F.2d at 172. The question is whether a jury, viewing the evidence in the light most favorable to Amphenol, could have properly reached the conclusion reached by this jury. Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). The grant or denial of a new trial is reviewed for abuse of discretion. Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.1994).
The claim of negligence per se was given to the jury, which...
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