Anderson v. Beatrice Foods Co., No. 88-1070

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore TORRUELLA and SELYA, Circuit Judges, and BOWNES; SELYA
Citation900 F.2d 388
Docket NumberNo. 88-1070
Decision Date07 February 1990
Parties, 31 ERC 1584, 16 Fed.R.Serv.3d 572, 20 Envtl. L. Rep. 20,806 Anne ANDERSON, et al., Plaintiffs, Appellants, v. BEATRICE FOODS CO., Defendant, Appellee. . Heard

Page 388

900 F.2d 388
31 ERC 1161, 31 ERC 1584, 16
Fed.R.Serv.3d 572,
20 Envtl. L. Rep. 20,806
Anne ANDERSON, et al., Plaintiffs, Appellants,
v.
BEATRICE FOODS CO., Defendant, Appellee.
No. 88-1070.
United States Court of Appeals,
First Circuit.
Heard Feb. 7, 1990.
Decided March 26, 1990.
Opinion on Denial of Rehearing April 30, 1990.

Page 390

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.

I

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....

Page 391

... [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.

II

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

Page 392

belief that it can--or should--be wrenched out of the case's context.

The clearly erroneous standard governs our review of the finding that defendant's misconduct did not result in substantial interference with the preparation and presentation of plaintiffs' case. This means that:

If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); see also Keyes v. Secretary of the Navy, 853 F.2d 1016, 1019-20 (1st Cir.1988). Thus, "where the conclusions of the [trier] depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts, appellate courts should defer to such fact-intensive findings, absent clear error." Irons v. FBI, 811 F.2d 681, 684 (1st Cir.1987).

In this case, it was eminently reasonable to posit the strength or weakness of plaintiffs' evidence on disposal as an important factor bearing on the determination of whether nondisclosure amounted to a substantial interference. For the tannery site to be a source of actionable contamination, or for there to be a "nexus" between the tannery and the wells, Anderson v. Cryovac, Inc., 862 F.2d at 932, it was incumbent upon plaintiffs first to prove that the tannery used, and disposed of, the complaint chemicals. The dearth of evidence on this point, coupled with the lack of any obvious connection between the Report and sources of knowledge as to tannery operations, seems a good indication that, even armed with the Report, plaintiffs would not have been able to prove the essential elements of a "tannery" case. The district court so found. That finding, whether or not inevitable, was "plausible," that is, satisfactorily rooted in the record and completely consistent with common sense. A contrary finding--that the Report might have...

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155 practice notes
  • McCullen v. Coakley, No. 08-2310.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 8, 2009
    ...not presented an argument to the district court, she may not unveil it in the court of appeals."); Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.1990) (holding that an appellant's briefs fix the scope of the issues appealed and that, therefore, an appellant cannot breathe ......
  • U.S. v. Padilla, No. 03-1918.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 25, 2005
    ...makes it unseemly for us to reexamine Meléndez-Santana's finding of error on an eleventh-hour request. Cf. Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.1990) (opinion on denial of rehearing) (explaining that a party generally is not permitted to raise a new issue for first tim......
  • Calzone v. Summers, No. 17-2654
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 1, 2019
    ...only the uncompensated-lobbyist issue, is not a "forfeiture" of the panel's rationale.14 See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990) ("[A]n appellant's brief on appeal fixes the scope of issues appealed so that an appellant cannot resurrect an omitte......
  • American Policyholders Ins. Co. v. Nyacol Products, Inc., No. 92-1949
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 9, 1992
    ...Co., 924 F.2d 1161, 1169 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 69, 116 L.Ed.2d 44 (1991); Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.), 498 U.S. 891, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990). That rule has particular pertinence here because, following oral argument......
  • Request a trial to view additional results
153 cases
  • McCullen v. Coakley, No. 08-2310.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 8, 2009
    ...has not presented an argument to the district court, she may not unveil it in the court of appeals."); Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.1990) (holding that an appellant's briefs fix the scope of the issues appealed and that, therefore, an appellant cannot breathe l......
  • U.S. v. Padilla, No. 03-1918.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 25, 2005
    ...makes it unseemly for us to reexamine Meléndez-Santana's finding of error on an eleventh-hour request. Cf. Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.1990) (opinion on denial of rehearing) (explaining that a party generally is not permitted to raise a new issue for first tim......
  • Calzone v. Summers, No. 17-2654
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 1, 2019
    ...raised only the uncompensated-lobbyist issue, is not a "forfeiture" of the panel's rationale.14 See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990) ("[A]n appellant's brief on appeal fixes the scope of issues appealed so that an appellant cannot resurrect an omitted claim ......
  • American Policyholders Ins. Co. v. Nyacol Products, Inc., No. 92-1949
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 9, 1992
    ...Co., 924 F.2d 1161, 1169 (1st Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 69, 116 L.Ed.2d 44 (1991); Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.), 498 U.S. 891, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990). That rule has particular pertinence here because, following oral argument......
  • Request a trial to view additional results

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