Arvidson v. Reynolds Metals Company

• Decision Date: 19 October 1954
• Docket Number: Civ. No. 1415,1653.
• Citation: 125 F. Supp. 481
• Parties: Albert A. ARVIDSON, et al., Plaintiffs, v. REYNOLDS METALS COMPANY, a corporation, Defendant. W. J. WHITEAKER, et al., Plaintiffs, v. REYNOLDS METALS COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

125 F. Supp. 481

Albert A. ARVIDSON, et al., Plaintiffs, v. REYNOLDS METALS COMPANY, a corporation, Defendant.

W. J. WHITEAKER, et al., Plaintiffs, v. REYNOLDS METALS COMPANY, a corporation, Defendant.

Civ. Nos. 1415, 1653.

United States District Court, W. D. Washington, S. D.

October 19, 1954.

Schafer & Cronan, Portland, Or., and Paul M. Reeder, Hillsboro, Or., Eisenhower, Hunter, Ramsdell & Duncan, Tacoma, Wash., for plaintiffs.

King, Miller, Anderson, Nash & Yerke, Portland, Or., Henderson, Carnahan, Thompson & Gordon, Tacoma, Wash., and Walter Rice and W. Tobin Lennon, Richmond, Va., for defendant.

BOLDT, District Judge.

Plaintiffs in the Arvidson case operate fourteen farms in Clark County, Washington. Their complaint filed in December, 1950 seeks damages and injunctive relief against defendant because of alleged damage to lands and cattle claimed to have been caused by fluorides discharged from defendant's aluminum plant at Troutdale, Oregon. The Whiteaker complaint was filed in November, 1952 by plaintiffs operating four farms in Cowlitz County, Washington seeking the same relief under similar allegations relating to the operation of defendant's aluminum plant at Longview, Washington. The cases consolidated for trial involve generally identical questions of law and fact. Seventy five witnesses testified and 342 exhibits were admitted in evidence. The court visited every farm involved, saw many of the cattle and inspected both aluminum plants with particular attention to their fume control systems. Prior to the trial, on motion and after full hearing, the applicable statute of limitations was determined by the court. Extensive briefs on the liability issues, together with a transcript of 2,500 pages, were submitted. Following the argument on liability the court indicated orally and at some length its then view of the controlling facts, reserving final decision on all points for written opinion.

A detailed analysis of the evidence would greatly lengthen this opinion and would not serve any useful purpose. The evidence was closely followed as it was presented, copious notes taken and at the conclusion of the evidence the court made a memorandum summarizing its impression of each witness and the weight and value to be given to his testimony. The facts as now found are based on extended study and consideration of the entire record, which will be summarized largely in general terms.

The Troutdale plant was constructed for the United States in 1941-1942 by Aluminum Company of America and operated by that company from May, 1942 to September, 1945 when operations were shut down. Defendant commenced operation of the plant under a lease in September, 1946 and with various short interruptions has continued the operation ever since. The plant was purchased from the government and deeded to defendant in June, 1950. The Longview plant was constructed by defendant and commenced operation in 1941. With various shutdowns defendant has operated the plant to the present time. In both plants aluminum is produced by processes which unavoidably cause gases, fumes and airborne particulates to be formed, some part of which are discharged into the atmosphere from the plant stacks. The effluence contains fluorides in some form and amount which eventually may be deposited on lands within a radius of ten miles or more of the plant, but the course, quantity and distribution thereof cannot be directly observed or known. Fluorides of some of the types escaping from the plants, if ingested in excessive quantities, are capable of causing damage to cattle.

Prior to defendant's first operation of the Troutdale plant in 1946 substantial improvements in the fume control system were installed at an expense of nearly $300,000. At the same plant defendant, at a cost of over two million dollars, completed installation in November, 1950 of an elaborate fume control system said to be as advanced and efficient as presently exists in the aluminum industry. From time to time various improvements in the fume control system at the Longview plant have been installed, the latest in 1949. Whether the measures taken by defendant to minimize the escape of fluorides from its plants are the maximum possible consistent with practical operating requirements is yet to be determined, but apparently American industry has not yet developed anything better. The record shows that the United States has a very important interest in the continued operation of these plants for their large scale production of aluminum essential to national defense. Because thereof the government has contractual obligations to defendant concerning claims of the character presented in these cases and for reacquisition of the Troutdale plant in the event operation thereof be enjoined. The conclusions reached by the court as to the facts and law controlling of these particular cases make it unnecessary to decide defendant's contention that because of the commitments referred to the United States is a necessary party in the Arvidson case, but the circumstances just stated indicate the lawful and important character of defendant's operations. For the same reason, consideration of defendant's contentions as to the effect of the releases executed by plaintiffs is not required.

In a number of cases previously heard in this and other courts in this area awards for fluorine damage resulting from operation of the Troutdale and Longview plants have been allowed, but every such case involved periods when little, if any, fume control measures were taken and before the installation of the later of the fume control improvements referred to.

Plaintiffs' farms are located at various distances up to seven miles from defendant's plants. During various periods up to several years prior to the filing of the complaints plaintiffs grazed dairy and beef cattle on their farms. Most of the cattle claimed to have been damaged were on the farms the whole of a two-year period prior to commencement of the actions.

Plaintiffs had the burden of establishing by a preponderance of the evidence that the market value of their farms was depreciated and/or that the physical condition and milk producing capacity of their cattle were damaged by fluorides emanating from defendant's plants. Extensive evidence was introduced for such purpose. Defendant's evidence, equally extensive, was to the effect that no depreciation in market value of plaintiffs' farms had occurred and that the maximum possible ingestion of fluorine by plaintiffs' cattle, whether attributable to defendant's plants or otherwise, was well within the amount cattle can take without damage either as to physical condition or milk producing capacity. Plaintiffs' veterinarians testified that plaintiffs' cattle had and were suffering from various conditions ascribed to fluorine; and dairy records purporting to show a loss in milk production were presented. Veterinarians engaged by defendant flatly denied that the physical defects in plaintiffs' cattle were due to fluorine and ascribed them, as well as any apparent decline in milk production, to poor husbandry and other causes and conditions unrelated to fluorine.

The expert testimony, in some instances given by scientists of national eminence, was in sharp conflict. Plaintiffs' experts testified that damage to plaintiffs' cattle could and did follow from ingestion of fluorine in the quantities shown by forage sampling in the area of plaintiffs' farms. Defendant's experts unequivocally and without reservation testified to the contrary.

All of the plaintiffs testified to personal observations of physical ailments and milk production performance of their cattle. Plaintiffs may have been sincere in believing that all of the ills of their cattle and all of the unsatisfactory conditions in their dairy operations were due to fluorine damage; however, rarely did a plaintiff voluntarily or readily acknowledge any cattle ailment, damage or unsatisfactory condition as being due to any other cause, no matter how apparent it might be. On the whole, the court was not favorably impressed with the personal testimony of plaintiffs. Almost every plaintiff on cross examination was badly discredited in various respects but primarily by (a) testimony at the trial directly contrary to testimony given by pretrial deposition; (b) reluctant admission of conditions and causes unrelated to fluorine accounting in many instances for the damage or condition complained of; (c) admission of substantial increases in income from dairy products during the years complained of as contrasted to earlier periods when fluoride effluence was as much or greater; and (d) the testimony of some plaintiffs in the Arvidson case that no injurious effects or damage were observed from 1942 to 1945 during the period Alcoa was operating the Troutdale plant without the fume control improvements installed by defendant when fluoride effluence must have been very much greater than during the period complained of. It would appear from the testimony last referred to that the cattle injury and loss of milk production complained of were either not due in any material degree to fluorine or were the result of an accumulation of fluorine deposits in forage over a period including several years prior to the limitation period. In this connection it should be noted that the experts produced by plaintiffs testified that fluorine deposits on forage dissipate rapidly and do not accumulate over any great length of time, particularly in areas subject to frequent rainfall.

Each of the veterinarians examined all of the dairy cattle in plaintiffs' herds and cattle urine was tested for fluorine by defendant's veterinarians at various intervals during the period in question. Plaintiffs' veterinarians found a variety of physical conditions in the cattle which they considered evidence of fluorine ingestion and damage resulting therefrom. Defendant's veterinarians accounted...