900 F.2d 388 (1st Cir. 1990), 88-1070, Anderson v. Beatrice Foods Co.

Docket Nº:88-1070.
Citation:900 F.2d 388
Party Name:Fed.R.Serv.3d 572, 20 Envtl. Anne ANDERSON, et al., Plaintiffs, Appellants, v. BEATRICE FOODS CO., Defendant, Appellee.
Case Date:March 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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900 F.2d 388 (1st Cir. 1990)

Fed.R.Serv.3d 572,

20 Envtl.

Anne ANDERSON, et al., Plaintiffs, Appellants,


BEATRICE FOODS CO., Defendant, Appellee.

No. 88-1070.

United States Court of Appeals, First Circuit

March 26, 1990

Heard Feb. 7, 1990.

Opinion on Denial of Rehearing April 30, 1990.

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[Copyrighted Material Omitted]

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Charles R. Nesson, Cambridge, Mass., with whom Jan Richard Schlichtmann and Schlichtmann, Conway, Crowley, & Hugo, were on brief, for plaintiffs, appellants.

Jerome P. Facher, with whom James L. Quarles III, Neil Jacobs, Richard L. Hoffman, and Hale and Door, Boston, Mass., were on brief, for defendant, appellee.

Before TORRUELLA and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

The appeal before us represents yet another march in a litigatory trek of unusual length and complexity. We recount the case's by-now-familiar itinerary and thereafter proceed to blaze what few new trails remain.


The litigation concerns claims made by residents of the Aberjona River Valley in Woburn, Massachusetts. These residents contend that certain toxic chemicals in the city's water supply (the "complaint chemicals") caused a variety of ailments, including leukemia. Plaintiffs' search for the sources of contamination eventually focused upon a 15-acre parcel of vacant wetland lying west and southwest of two municipal water wells (designated "G" and "H"). To the southeast, across a set of railroad tracks, lay a tannery once operated independently by John J. Riley Company ("Rileyco") and later by Riley family members as a division of defendant-appellee Beatrice Foods Company ("Beatrice"). Plaintiffs sued Beatrice and others no longer before the court.

What ensued has been voluminously documented and memorialized at frequent intervals. See, e.g., Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.1988); Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986); Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D.Mass.1986); Anderson v. Cryovac, Inc., 96 F.R.D. 431 (D.Mass.1983). We begin our capsulated account by noting that, following drawn-out pretrial proceedings and a protracted jury trial, judgments were entered in Beatrice's favor. See Anderson v. Cryovac, Inc., 862 F.2d at 914-15. Plaintiffs appealed. Later, while their appeal was pending, plaintiffs came to believe that grounds existed to set the judgments aside under Fed.R.Civ.P. 60(b)(3). 1 They requested such relief in the district court, asserting that a report prepared for Rileyco in 1983 by an independent consultant, Yankee Environmental Engineering and Research Services, was improperly (and prejudicially) withheld during pretrial discovery. 2 The district court denied the motion. Plaintiffs' appeal was consolidated with their original appeal.

Although we found the appeal on the merits to be unavailing, see Anderson v. Cryovac, Inc., 862 F.2d at 915-22, we concluded that additional factfinding was requisite in order to decide the second appeal. Therefore, we retained jurisdiction over that appeal and remanded for a limited purpose:

On remand, the court must first conduct an evidentiary hearing and determine whether appellee, acting alone or in concert with the Riley interests ..., knowingly or intentionally concealed the Report.... Depending on the outcome of this inquiry, a presumption of substantial interference will or will not arise.... In either event, the court should then proceed to receive an orderly presentation from all parties to decide whether the Report ... is inconsequential vis-a-vis the plaintiffs' claims insofar as they relate to the tannery property....

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... [T]he second-stage determination must be whether lack of access to the Report substantially interfered with plaintiffs' efforts to prepare and present a case as to the nexus between the tannery and the pollution of wells G and H.... Finally, the district court should formulate recommendations, based on its subsidiary findings, as to whether plaintiffs are in its view entitled to any remedy, and if so, the nature and scope thereof. The court shall also furnish us with a recommendation as to the appropriateness vel non of sanctions anent any unexcused discovery violations.

Id. at 932 (footnote omitted).

The district court tackled so thankless a task with incisiveness and vigor. After conducting extensive hearings during the first three months of 1989, Judge Skinner made an initial determination that the discovery infraction comprised deliberate misconduct as we had defined that term of art, id. at 925-26, thus entitling the plaintiffs to a rebuttable presumption that nondisclosure of the Report substantially impaired their preparation for trial, id. at 926, 930. The judge's findings in this regard were contained in a published rescript, Anderson v. Beatrice Foods Co., 127 F.R.D. 1 (D.Mass.1989), and do not bear repeating.

The district court then commenced seven more days of hearings, ultimately concluding that, while the Report might have been marginally helpful to the plaintiffs in establishing the transport of chemicals from the tannery to the wells, there was no competent evidence that Beatrice disposed of the complaint chemicals at either the tannery site or on the 15-acre parcel. Anderson v. Beatrice Foods Co., 129 F.R.D. 394 (D.Mass.1989). Thus, the initial presumption notwithstanding:

Concealment of the Report ... did not constitute substantial interference with the preparation of a tannery case, where the essential predicate of such a case--use and disposal of the complaint chemicals by the defendant--was significantly negated by the evidence developed by the plaintiffs themselves in the course of pretrial investigation and discovery, and has never been otherwise established.

Id. at 402. The district court recommended that its earlier denial of the Rule 60(b)(3) motion be sustained. We ordered supplementary briefing, entertained oral argument, and now accept the lower court's recommendations in their entirety.


The next leg of the journey can be accomplished with some expedition. Given the amount of time, energy, and resources which this litigation has consumed, and the number of pages heretofore written about it by various judges of various courts, we believe that an effort at (relative) brevity would be both a refreshing change and a decided virtue.

It is crystal clear that the district court read our opinion carefully, followed our instructions closely, and faithfully applied the principles which we elucidated. Although appellants assign error to the recommendations in a plethora of respects, their complaints anent the main issue reduce, essentially, to the thesis that the district court, having found that the Report would have been helpful in establishing the flowage of chemicals from the tannery to the wells, was required to find that nondisclosure worked a substantial interference with the full and fair preparation and presentation of appellants' case. Elaborating on the theme, plaintiffs contend that the court's finding as to lack of evidence on use and disposal of the chemicals was irrelevant to the claim that defendants violated Fed.R.Civ.P. Rule 60(b)(3). Put another way, plaintiffs argue that the district court went down a blind alley when it concentrated on the insufficiency of the disposal-related information that plaintiffs had thus far acquired. Proof of disposal, they say, was not the issue; rather, the court should have focused exclusively on the effect of the concealment: whether what plaintiffs failed to learn, due to Beatrice's misconduct, could have contributed significantly to preparation and presentation of their case. Although this was indeed the pivotal question, we do not share plaintiffs' steadfast

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belief that it can--or should--be...

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