McVey v. Phillips Petroleum Company

• Decision Date: 10 March 1961
• Docket Number: No. 18374.,18374.
• Parties: Jackson E. McVEY and H. E. Northway, Appellants, v. PHILLIPS PETROLEUM COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 53 (1961)

Jackson E. McVEY and H. E. Northway, Appellants, v. PHILLIPS PETROLEUM COMPANY, Appellee.

No. 18374.

United States Court of Appeals Fifth Circuit.

March 10, 1961.

James H. Wright, Houston, Tex., for appellants.

F. L. Andrews, Houston, Tex., Anthony Mondello, Atty., Dept. of Justice, Washington, D. C., William B. Butler, U. S. Atty., Houston, Tex., Morton L. Hollander, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

This is an appeal from a judgment in a negligence action entered in accordance with the special findings of a jury.

Plaintiffs, appellants, were employed at the time of the alleged mishap in the South Houston plant of the Nuclear Products Division of M. W. Kellogg Company. Kellogg manufactured a gammaray projector (the "Kel-Ray projector") which was used to detect latent defects in pipe welds. The projector worked on the same principle as an X-ray machine, the rays being emitted from radioisotopes mounted in the projector. The radioisotopes were small pellets ¼" × ¼", which were irradiated by placing them in a nuclear reactor. Kellogg obtained the neutral pellets from an independent supplier and sent them to a nuclear reactor at Idaho Falls, Idaho, which was operated by appellee Phillips Petroleum Company under a contract with the Atomic Energy Commission. After sufficient bombardment in the reactor, the pellets were shipped to the Kellogg South Houston facility.

McVey was a laboratory technician and Northway the office manager of the Kellogg South Houston Nuclear Laboratory. They allege that, on or about March 13, 1957, McVey, in the presence of Northway, was opening a shipment of ten irradiated pellets which had recently arrived from Phillips' reactor, when "there was an unexpected and uncontrolled discharge of radioactive dust into the air inside the Kellogg Laboratory." Plaintiffs allege further that, as a result of this discharge, which they claim was due to negligence on the part of Phillips, they were exposed to radioactive dust, resulting in severe injuries to their respective persons.

On appeal, the first point of error raised is the refusal of the district court to admit certain evidence offered in rebuttal by plaintiffs. Initially, it may be observed that questions as to order of proof are committed to the sound discretion of the trial judge.¹ And we may also note the rule that rebuttal evidence is generally admissible only to meet the evidence brought out in defendant's case in chief.² Thus, we start with an analysis of those portions of the case for the defendant which the proffered evidence purported to rebut.

The first witness for the defense whose testimony is relevant to our inquiry was L. T. Newby, a County Stream and Air Pollution Inspector of the State of Texas. He recalled visiting the South Houston facility on March 18, 1957, approximately five days after the alleged exposure incident involved in this case. He noted that at the time of his visit no one told him of contamination in the area. His testimony was corroborated by his cohort, Mr. Douglas. Dr. Emmert, the first of several medical witnesses, next appeared for the defense. Dr. Emmert could find no physical evidence of exposure to radiation on the part of McVey on March 13, 1957. Mr. Hawkins was the next witness whose testimony is relevant. He was a former office employee at the Kellogg Nuclear Laboratory, and he testified that on a day in March 1957 the alarm bell went off in the laboratory, and at that time Mr. Northway was in the office and not in the laboratory where the alleged exposure incident took place. Hawkins also testified that McVey checked himself for traces of radiation on that day in March 1957, and that he found himself contaminated. Defendant then offered as a witness one Bradley, a representative of the manufacturer of an air monitor device which was in the Kellogg hot lab in South Houston and measured radiation in the air. He testified that an alarm bell would sound when the machine registered above 2,000 counts per minute, although that level was not considered dangerous. Bradley interpreted various charts on which the air monitor recorded the level of radiation in the air. On March 13, 1957, he found a sharp rise in counts per minute from 3,000 to 8,000 — an increase which would normally have set off the alarm bell. Bradley testified that this level was probably due to the fact that sources (i. e., isotopes) were being moved around. He then translated the 8,000 count per minute reading into one-third of a microcurie, which is about three times the amount of radiation given off by a wrist watch with a radium dial. On March 14, the monitor rose to a reading of 10,000 counts per minute — "typically the thing we see following a period in which these capsules have been opened and the personnel are working with them." On the basis of his readings of three charts offered in evidence, covering the periods of August 6-September 8, 1956, October 1-November 1, 1956, and March 11-April 30, 1957, Bradley estimated that the total radiation detected by the monitor was one-fortieth of "the amount that these people — that would have been marginally hazardous for these people to have breathed continuously, not only during their 40 hours a week of occupation, but 168 hours a week throughout their lives. So that a very substantial safety factor is involved here, a very substantial safety factor." After Mr. Bradley, a Dr. Allen testified for Phillips. On the basis of his examinations of McVey and Northway following the alleged March 13, 1957 incident, Dr. Allen concluded that "there was no significant exposure to radiation * * *. They had none of the symptoms that I could refer to radiation syndrome * * *." Dr. Allen was followed by an eye specialist, Dr. Goar. He testified that, because of their shape, he did not believe the "opacities" observed in the eyes of McVey and Northway were caused by irradiation. He also noted that "severe enough radiation to produce lens changes would cause epilation, falling out of the lashes * * *." (In their case in chief, plaintiffs had put in testimony that these opacities were early radiation cataracts.) Next came Dr. Gamble, a hemotologist. On the basis of his blood studies, he found that neither Northway nor McVey were exposed to any significant amounts of radiation. Another physician, Dr. Collins, confirmed that Northway exhibited none of the symptoms of significant radiation exposure. Dr. Harris, an expert on the biological effects of radiation, confirmed this conclusion on the basis of the symptoms manifested by plaintiffs, stating that in his opinion "there was no significant radiation injury in either one of these cases." Dr. Hasterlik agreed.

In addition to this testimony, the defendant introduced the readings from each of the plaintiffs' pocket dosimeters for the week ending Friday, March 15, 1957. These meters make daily records of the amount of radioactivity to which the wearers are exposed. McVey's total exposure for the week ending March 15 was 270 milliroentgens. Northway's dosimeter recorded 45 milliroentgens for the same week. The maximum permissible weekly accumulation is 300 milliroentgens. These exposure readings were confirmed by weekly reports of exposure to radiation taken from the film badges which appellants wore. For the week ending March 15, 1957, McVey's film badge reflected exposure to 270 milliroentgens of radiation, Northway's to 15 milliroentgens.

The proffered rebuttal evidence consisted of testimony by a representative of Tracerlab, an organization specializing in the detection and measurement of radioactivity. In late April 1957, Tracerlab made an examination of the Northway and McVey residences and discovered substantial amounts of radioactivity both in their homes and on their clothing. This evidence was offered, so plaintiffs argue, to rebut the thrust of the defense which they viewed to be the claim that plaintiffs were not exposed to a sufficient amount of radioactivity to cause them injury. Defendant contends that this is an erroneous view of its position. Defendant's claim is that it defended on two main grounds: 1) the alleged incident on March 13, 1957 never occurred, and 2) the injuries of which plaintiffs complain are not the result of exposure to radiation. The district judge ruled in favor of the defendant. "I think the objection that it was not brought up in the defendant' (sic) case is well founded. If it was evidence that you needed to support your case-in-chief, you should have put it on before you rested." We agree with the district judge that the substance of the defense was as appellee, defendant, argues, and that the proffered evidence was not proper rebuttal. In any event, we cannot hold that the district judge abused his discretion in barring its admission.

Plaintiffs, appellants next charge that the district court erred in "instructing the jury to consider only appellants' exposure to radiation which occurred on March 13, 1957, and in refusing to permit the jury to consider any subsequent exposures to radiation proximately resulting from the incident of March 13, 1957." The jury's question was as follows: "We wish to know under Interrogatory No. 1(a) if alleged injury must have occurred on March 13, 1957 only, or if subsequent exposures due to the March 13th incident are to be considered. C. C. Anderson, Foreman." The court invited counsels' comments and considerable discussion between bench and bar took place before the court read the following answer to the jury:

"This suit is based on an alleged incident occurring March 13, 1957 when two radioactive pellets upon opening the reactor can became pulverized and contaminated the air as radioactive dust. You should limit your consideration to the exposure to radiation on March 13, 1957 and the injuries resulting from such exposure even though the symptoms of such

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