O'Dell v. Hercules, Inc., s. 88-1958

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation904 F.2d 1194
Docket Number88-2123,Nos. 88-1958,s. 88-1958
Parties30 Fed. R. Evid. Serv. 1124 Steven O'DELL, Jana O'Dell, Tim O'Dell, Paul O'Dell, Ruby Bridges, et al., Appellants, v. HERCULES INCORPORATED, Appellee. Steven O'DELL, Jana O'Dell, Tim O'Dell, Paul O'Dell, Appellants, Ruby Bridges, et al., v. HERCULES INCORPORATED, Appellee.
Decision Date10 May 1990

Phillip H. McMath, Little Rock, Ark., for appellants.

Eugene Partain, Atlanta, Ga., for appellee.

Before LAY, Chief Judge, BOWMAN and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Appellants, the Bridges 1 and the O'Dells, 2 appeal the district court's 3 order 4 denying a new trial, after the liability phase of a jury trial in consolidated and bifurcated Arkansas personal injury and property damage actions alleging exposure to dioxin, a by-product of Agent Orange manufacturing. 687 F.Supp. 450. The jury, in returning a verdict in favor of Hercules, Incorporated (Hercules), 5 found that Hercules had not created a risk of harm to the health of any of the plaintiffs and had not been negligent. The district court's final order denied appellants' motions requesting a new trial on grounds that the method of bifurcation, limitations on proof, introduction of inadmissible evidence, and exclusion of admissible evidence constituted abuses of judicial discretion.

This appeal is taken from the denial of a new trial. Appellants do not contest the judgment on the jury verdict in favor of Hercules. We affirm.


From 1962 through 1969, Hercules produced Agent Orange 6 at a chemical manufacturing plant in Jacksonville, Arkansas. Beginning in 1971, Transvaal, Inc. (Transvaal), a functioning subsidiary of Vertac Chemical Corporation (Vertac), leased the plant from Hercules. Transvaal purchased the facility in 1976.

Hercules and Vertac disposed of chemical waste 7 on the plant site and in the Graham Road and Rogers Road landfills, operated by the city of Jacksonville and located in North Pulaski County, Arkansas. The Rogers Road landfill had been closed by the city of Jacksonville in 1959. However, unofficial dumping occurred at Rogers Road. The Graham Road landfill operated from 1959 to 1973.

Leaking drums of stillbottoms were buried on the plant site and disposed of in the landfills. Chemical waste had been poured into trenches in a marshy area and also buried. The trenches led into Rocky Branch Creek 8 and contaminated the ground water. In addition, drums were often taken off the sites and used by the general public. Chemical contents of these drums were burned in the open air. Neighborhood children played on the sites. No warning signs or fences existed at the landfills.

In 1979, eight years after Hercules ceased operation of the plant site, the Centers for Disease Control (CDC) conducted four separate exposure and endangerment studies and reported that the dioxin releases and levels in the environment around the plant site and the landfills created a significant risk to public health. A United States district court in eastern Arkansas ordered Vertac to undertake remedial action to arrest the chemical leakage from the disposal sites. United States v. Vertac Chem. Corp., 489 F.Supp. 870 (E.D. Ark.1980) (preliminary injunctive relief). 9 ADPCE had compiled a Technical Data Summary (TDS) in 1982 and listed the plant site as

"contaminated" because of the presence of 2,4,-D, 2,4,5-T and dioxin. The district court subsequently ordered Vertac to immediately implement a remedial plan. United States v. Vertac Chem. Corp., 588 F.Supp. 1294 (E.D. Ark.1984). The 1985 EPA Field Investigation Team (FIT) report indicated high levels of dioxin in both landfills. The EPA placed both landfills on the 1985 National Priority List (NPL) 10 for Superfund Clean-up, sixteen years after Hercules ceased producing Agent Orange and dumping chemical waste from the process in the landfills.

The ninety-five Bridges plaintiffs were present and former residents of the vicinity in and around the Graham Road and Rogers Road landfills. On June 25, 1985, the Bridges plaintiffs commenced an action claiming exposure to toxic chemicals, and alleging that defendants knowingly dumped toxic chemical manufacturing waste without warning area residents and allowed toxic chemicals to escape into the air, ground and water.

The four O'Dell plaintiffs had lived near the plant site since 1973. Steven and Jana O'Dell also lived adjacent to the Graham Road landfill. On August 1, 1986, the O'Dells filed a complaint alleging exposure to toxic chemicals from the landfills and subsequently filed an amended complaint further alleging exposure from the plant site. 11

Hercules moved without opposition to consolidate the two cases and bifurcate the liability and damages issues for purposes of trial. The district court granted consolidation. Bifurcation was granted by the trial court. However, no formal bifurcation order detailing specific findings in support of bifurcation was entered. Plaintiffs' subsequent motion to sever was denied.

At the pretrial conference, the trial court limited the proof in phase I of the trial to evidence pertaining to the issues of generic causation and liability. 12 The trial court defined the general standard of proof for phase I and advised counsel of its intent to consider the admissibility of specific evidence when proffered. The trial court ruled that the central issue was causation and the parties were to produce evidence bearing on whether Hercules, by its emissions of a dangerous substance, caused a health or economic hazard in the air, surface water, ground water, or soil in sufficient quantities to cause injury.

In phase I, the trial court permitted generic proof of plaintiffs' exposure to toxic chemicals in the form of significant routes of exposure. Plaintiffs' experts 13 testified that exposure may have been significant and would have created health risks. Defendant's expert, Dr. Raymond Harbison, testified to the contrary that no health risk existed based on estimations of the exposure of a hypothetical O'Dell plaintiff.

Phase I of trial extended from February 15, 1988 to February 29, 1989, producing 2,213 pages of transcript and 619 voluminous trial exhibits. Plaintiffs called seventeen of the twenty-seven trial witnesses. Ex-employees of both Hercules and Vertac testified to actually physically carrying chemical waste materials to the landfills. Tr. at 247-545.

Plaintiffs' expert, Dr. Morris Cranmer, an environmental toxicologist and consultant, who had done work for the EPA, Hercules and Vertac, and served as Director of the National Center for Toxicology Dr. Carl Stapleton, an environmental health scientist, testified about the relationship between the quality of the environment and the potential health effects that could occur when exposure to potential pollutants takes place. Dr. Stapleton testified regarding the FIT reports, the ADPCE TDS, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) HRS, and the CDC health assessments. Dr. Stapleton opined that "toxics have existed in quantities at that site and have been transported from the site and individuals have been exposed both on the site and off the site to these toxics that have posed a significant public health risk to those individuals." Tr. at 1226.

Research, testified that the landfills had been placed on the EPA's 1985 NPL. He was permitted to testify regarding the chemical nature of the dioxin, 2,3,7,8-TCDD, its function in the Agent Orange manufacturing process, and its persistence in the environment. He also testified regarding the toxicity (i.e., adverse health effects on organisms) of dioxin, due to both acute and chronic exposure. He classified dioxin in his expert opinion as a carcinogen. On the basis of epidemiological studies, he also testified that he believed dioxin was genotoxic, hepatotoxic, neurotoxic, and teratogenic. Specifically, he testified regarding the neurotoxic epidemiological effects of dioxin prior to 1971. Dr. Cranmer was not precluded from analyzing the 1985 FIT reports 14 on the landfills and detailing the methodology employed in the investigation. He expressed his belief that data from the FIT reports was insufficient for accurate modeling (i.e., defining the degree of harm possible under certain circumstances). He additionally commented on the probability of adverse health effects for persons living near the landfills, during their period of operation, to receive waste material from 2,4-D and 2,4,5-T production, but was precluded from testifying regarding the health records of individual plaintiffs. He commented on the toxicological significance (i.e., a variety of adverse health consequences) of exposure to levels of dioxin found by EPA and CDC reports on the plant site and landfills as well as environmental studies of the surrounding area. He also testified regarding a report he authored in 1980 regarding the compliance of the Vertac plant with Occupational Safety and Health Administration (OSHA) regulations.

Without objections, the jury was instructed on risk of harm, negligence, and landowner

                liability.  Tr. at 2175-82.  The jury returned a verdict in favor of Hercules. 15   Judgment was entered on the verdict.  The trial court denied plaintiffs' motion for a new trial and from this denial appellants appeal

Appellants seek a new trial alleging four principal instances of prejudicial trial error in evidentiary rulings and in bifurcation.

Deciding a motion for a new trial is a matter committed to the sound discretion of the trial court. McGee v. Hester, 815 F.2d 1193 (8th Cir.), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 392 (1987). Therefore, the district court's decision denying plaintiffs' motion for a new trial must constitute an abuse of discretion in order to undergo reversal by this court. Green v. American Airlines, Inc., 804 F.2d 453 (8th Cir.19...

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    ...of evidence was prejudicial where there has been a clear abuse of discretion. Warner, 739 F.2d at 1350. O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir.1990). This court will consider Traum's specific objections to evidentiary rulings a. Testimony of plaintiff's expert In one of his ......
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