Anderson v. Cryovac, Inc.

Decision Date28 July 1988
Docket NumberNos. 87-1405,88-1070,s. 87-1405
Citation862 F.2d 910
Parties, 12 Fed.R.Serv.3d 719 Anne ANDERSON, et al., Plaintiffs, Appellants, v. CRYOVAC, INC., et al., Defendants, Appellees. Anne ANDERSON, et al., Plaintiffs, Appellants, v. BEATRICE FOODS CO., Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

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

Lee P. Breckenridge, Chief, Environmental Protection Div., Dept. of the Atty. Gen., Boston, Mass., on brief for the Com. of Mass., amicus curiae.

Jerome P. Facher, with whom Neil Jacobs, Donald R. Frederico and Hale and Door, Boston, Mass., were on briefs for appellees.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Although we disagree with appellants' characterization of the matter before us as a watershed in the law of toxic torts, 1 we find these consolidated appeals to raise perplexing questions--some of novel impression--concerning the scope and operation of certain of the Civil Rules. An exposition of the questions squarely presented, and of our answers to them, follows.


We eschew an exigetic presentation of the litigation's history, secure in the knowledge that the reader with a thirst for further detail may appropriately consult two published table-setter opinions: Anderson v. Cryovac, Inc., 96 F.R.D. 431 (D.Mass.1983) (Anderson I ) and Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D.Mass.1986) (Anderson II ). Rather, we address the facts only insofar as they pertain directly to the issues which confront us.

In 1964, the Commonwealth of Massachusetts and the city of Woburn approved plans to site two municipal water wells, designated "G" and "H," in the Aberjona River Valley. The wells were installed. In 1979, public health officials discovered that the wells were contaminated by toxic solvents. These solvents included trichloroethylene, tetrachloroethylene, 1,2 transdichloroethylene, and trichloroethane. For ease in reference, we shall call them, collectively, the "complaint chemicals." After much investigation, officials of the federal Environmental Protection Agency (EPA) zeroed in on several potential sources of contamination: a manufacturing plant owned by W.R. Grace & Company (Grace), situated northeast of the wells; premises controlled by Unifirst Company, located north of the wells; and a 15-acre parcel of vacant wetland lying west and southwest of the wells. This parcel is a cynosure of the case.

The 15 acres were bordered by the Aberjona River on the east, a railroad embankment on the west, and a facility operated by a trucking company on the north. South of the parcel were a trio of businesses: Aberjona Auto Parts, Murphy Waste Oil, and Whitney Barrel Co. To the southwest, across a set of railroad tracks, lay a tannery which had been operated by the John J. Riley Company (Rileyco). In 1951, Rileyco--then owned and operated by the Riley family--purchased the 15 acres from the city and installed a production well on the site. In December 1978, the tannery became a division of defendant-appellee Beatrice Foods Company (Beatrice). Under the terms of the acquisition agreement, Beatrice obtained the business and real estate and assumed Rileyco's environmental liabilities. John J. Riley, Jr. (Riley) stayed on as the division's chief operating officer. In January of 1983, Beatrice resold the main tannery property. Riley resumed his proprietary operation of the tanning business under the Rileyco name. Simultaneously, the 15-acre wetland was transferred to an entity bearing the elegant name "Wildwood Conservation Corporation" (Wildwood). Like the "new" Rileyco, Wildwood was controlled by Riley.

Plaintiffs (appellants before us) all lived near wells G and H during and prior to 1979. In 1982, they sued Grace, Beatrice, and others in a Massachusetts state court, alleging that complaint chemicals in the water supply had caused them to contract a variety of ailments, leukemia included. Their action was based upon common law tort theories of negligence, nuisance, and strict liability. Because diversity jurisdiction existed, Grace and Beatrice were able to remove the case to federal district court. After several years, trial approached. The district court--confronted with a behemoth of a case--opted to try the matter in three stages. In the first phase, the jury would determine whether defendants were responsible for polluting the wells. The second and third phases, if needed, would be devoted to causation and damages, respectively. A 78-day first-phase trial ensued. Fifty-three days along, at the end of plaintiffs' case in chief, defendants moved for directed verdicts. In a written memorandum and order, the district judge ruled, inter alia:

(1) As to any negligence claim against Beatrice, the jury could only consider conduct occurring after August 27, 1968 (the date when Rileyco, Beatrice's predecessor in interest, first had arguable notice that wastes on the 15 acres could affect the municipal water supply). Anderson v. W.R. Grace & Co., Civ. No. 82-1672-S, slip op. at 2-3 (D.Mass. June 9, 1986) (Anderson III ).

(2) The jury could not consider failure to warn as evidence of Beatrice's negligence, because plaintiffs had not shown the existence of a special relationship that would support the imposition of such a duty. Id. at 3.

(3) The jury could not consider the strict liability claim against Beatrice, because there was no evidence of purposeful contamination. Id. at 3-4.

These rulings, coupled with other rulings vis-a-vis Grace (which we need not discuss), hampered plaintiffs to some extent, but did not extinguish their claims. The defendants' case went forward. When the evidence was closed, the court and the parties spent the best part of three days conferring over proposed jury instructions and related matters. The jury ultimately received the case on eight special interrogatories, four of which concerned Beatrice's liability. The first read as follows:

1. Have the plaintiffs established by a preponderance of the evidence that any of the following chemicals were disposed of at the Beatrice site after August 27, 1968 and substantially contributed to the contamination of Wells G and H by these chemicals prior to May 22, 1979?

(a) Trichloroethylene Yes___ No___

(b) Tetrachloroethylene Yes___ No___

(c) 1,2 Transdichloroethylene Yes___ No___

(d) 1,1,1 Trichloroethane Yes___ No___

The jury answered in the negative as to each chemical and, in accordance with the court's instructions, went no further as to Beatrice. 2 Appellee sought immediate entry of judgment, Fed.R.Civ.P. 54(b), but plaintiffs objected. They argued that yet another question should be propounded to the jury. The district judge made certain findings under Fed.R.Civ.P. 49(a), 3 rebuffed plaintiffs' overture, and entered the requested judgment. Anderson v. Beatrice Foods Co., No. 82-1672-S, memorandum and order (D.Mass. Sept. 17, 1986) (Anderson IV ). Plaintiffs prosecuted an appeal (No. 87-1405).

Soon thereafter, a new cloud darkened the horizon: plaintiffs essayed a further appeal from the district court's denial of a Rule 60(b) filing (No. 88-1070). The proceedings have been consolidated. We address them seriatim.


On their first appeal, plaintiffs argue that they deserve a new trial because the district court improperly foreclosed jury consideration of various legal theorems. We find it unnecessary to reach all of plaintiffs' substantive points, however, because the jury's answers to the special interrogatory, combined with the factual findings supportably made by the district judge under Fed.R.Civ.P. 49(a), fully disposed of plaintiffs' claims against Beatrice. Error as to peripheral matters--and we do not suggest that any occurred--was therefore harmless.

We approach this facet of our inquiry by looking to Fed.R.Civ.P. 49(a), see supra note 3, and to the standard of review applicable to the district court's findings thereunder. We then examine the findings and assess their legal adequacy and effect.

A. Special Verdicts: A Perspective.

At common law, special verdicts could not support a judgment unless the jury made findings of fact on every material issue in the case. E.g., Graham v. Bayne, 59 U.S. (18 How.) 60, 63, 15 L.Ed. 265 (1855). Waiver was not presumed: omission from the interrogatories of a fact necessary to support the judgment--even if the fact had been conceded--constituted grounds for reversal. See Hodges v. Easton, 106 U.S. (16 Otto) 408, 412, 1 S.Ct. 307 (1883); see also 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2507 (1971). These barriers marked a thinly-veiled distrust of jury interrogatories and deprived special verdicts of many of their natural advantages. Consequently, end-of-trial interrogatories were seldom seen.

The adoption of the Civil Rules put an end to this desuetude. Rule 49 recognized the value of the special verdict, judiciously employed. At the rule's core lay the policy of honoring special verdicts rendered upon agreed questions. In contrast to former practice, Rule 49 "put[ ] the burden of securing a jury verdict on all of the issues squarely on the parties." Id. at 505. Efficacious use of the new modality demanded, of course, that the nisi prius court be permitted to make interstitial findings of fact. To this end, Rule 49(a) ensures that, if the submitted questions omit any material issue of fact, the district court may itself make a finding (or, if it fails to do so, shall be deemed to have made a finding) consistent with the judgment entered pursuant to the special verdict. See Graphic Products Distributors, Inc. v. ITEK Corp., 717 F.2d 1560, 1569 (11th Cir.1983); Guidry v. Kem Manufacturing Co., 598 F.2d 402, 406 (5th Cir.1979), cert....

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