Mercer v. Rockwell Intern. Corp., CIV. A. 187CV-106-H.

• Decision Date: 01 September 1998
• Docket Number: No. CIV. A. 187CV-106-H.,CIV. A. 187CV-106-H.
• Citation: 24 F.Supp.2d 735
• Parties: Dora and Connis MERCER, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Kentucky

24 F.Supp.2d 735

Dora and Connis MERCER, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant.

No. CIV. A. 187CV-106-H.

United States District Court, W.D. Kentucky.

September 1, 1998.

COPYRIGHT MATERIAL OMITTED

Charles E. English, Jr., English, Lucas, Priest & Owsley, Bowling Green, Janet Jobe Crocker, Crocker & Wilkey, Franklin, Daniel R. Dolan, II, Dolan & Domenici, El Paso, TX, for Plaintiffs.

M. Stephen Pitt, J. Anthony Goebel, Donald J. Kelly, Wyatt, Tarrant & Combs, Louisville, Barry P. Goode, McCutchen, Doyle, Brown & Enersen, San Francisco, CA, for Defendants.

MEMORANDUM OPINION

HEYBURN, District Judge.

Defendant has once again moved for a dismissal. To begin, the Court has reviewed its previous opinions in this case to better assess their consistency throughout and now to better assess their application to the actual proof. Thereafter, the Court has completely reviewed its most important legal finding — the elements required for finding negligent trespass in these circumstances. That review of this complex subject confirms in general the Court's legal conclusions, but with some refinements. Finally, the Court has thoroughly reviewed the evidence — most particularly Plaintiffs' expert witnesses — which is now transcribed. Then, the Court applied that testimony to the applicable law. It is this task which has occupied the Court's time and concern.

Defendant has moved for Judgment as Matter of Law pursuant to Federal Rule of Civil Procedure 50. The motion is more like one for judgment notwithstanding the verdict based upon the evidence at the first trial which is now transcribed. Rule 50 allows a court to enter a Judgment as a Matter of Law pre- and post-verdict. A court can enter such judgment at the close of trial even when the jury did not return a verdict. See Fed.R.Civ.P. 50(b)(2)(B). In considering Defendant's Motion, the Court must exercise a de novo review. See American and Foreign Ins. Co. v. Bolt, 106 F.3d 155, 157 (6th Cir. 1997). To grant Defendant's Motion the Court must find that "viewing the admissible evidence most favorable to the party opposing the motion, a reasonable trier of fact could draw only one conclusion." Id. (citations omitted). The Sixth Circuit has also stated that "sufficient evidence for submission to the jury will be found `unless, when viewed in the light of those inferences most favorable to the non-movant, there is either a complete absence of proof on the issues or no controverted issue of fact upon which a reasonable person could differ.'" Id. (citations omitted). The Court should only consider issues raised in the pre-verdict motions. Thus, the Court should not consider evidence which might be presented in a future trial. Cf. Id. at 160.

I.

From 1957 to 1989, Defendant operated a plant in Russellville, Kentucky, which manufactured gas meter components and typewriter housings. In that process, Defendant used die cast machines to mold molten aluminum. These machines required hydraulic fluid to operate. Between 1959 and 1971, Defendant purchased at least 377,000 pounds of PCB containing products. Eventually, massive amount of this product either leaked from the plant or was stored in a lagoon nearby.

Due to Defendant's negligence or possibly gross negligence, a substantial amount of the PCB laden waste escaped into the drainage system and contaminated the Town Branch of the Mud River. Defendant's delay in doing anything about the problem further contributed to the spread of the PCB waste. As a consequence of separate enforcement action filed by the Kentucky Natural Resources and Environmental Protection Cabinet, Defendant is now acting under order of the Franklin Circuit Court which requires Defendant to characterize and remediate ground water, surface water, sediments and flood plain soils along Town Branch, in accordance with the court's standards. The court also ordered continued characterization of sediments and flood plain soils along the Mud River and remediation of all "hot spots."

Our case is one vastly different — both factually and legally — from the one which the Franklin Circuit Court entertained, though both have their genesis in the same egregious conduct. From the very beginning of this case, the various Plaintiffs have had difficulty finding any evidence of medical problems arguably caused by exposure to PCB's or even any evidence that PCB's existed on their property. This should not have been surprising since these properties are located on the lower Mud River some 50 miles downstream from Town Branch which then runs about 3½ miles up to the former Rockwell plant.

The original the complaint, filed some eleven years ago, contained about fifteen (15) property damage claims. Many of these are already dismissed after initial discovery because no PCB's could be found on the property. Originally, the complaint contained over 20 claims of personal injury, none of which could be supported by any evidence. Thus, it is fair to say that the parties come to this point having had many opportunities to present all the evidence remotely relevant to this case. Consequently, some of this Court's prior considerations of that evidence provides a valuable context to the Court's current task.

In its January 22, 1997, Memorandum and Order, the Court concluded that "Dr. Birge's report establishes contamination, [however] ... whether the PCB's levels are significant is also disputed. During the course of the litigation no one has established a relationship between any medical or physical problem and exposure to PCB's. Plaintiffs have produced no proof of disease in the fish, or damage to animals or crops. Plaintiffs could not establish the presence of metals, dibenzodioxins or diobensfurans in quantities sufficient to represent a hazard." As a consequence of this and later findings, the Court dismissed all personal injury claims.

On September 16, 1997, the Court considered Defendant's motion to exclude Plaintiffs' expert witnesses. In doing so, the Court also reviewed the sufficiency of the evidence as to the medical monitoring and properties damage claims. After first reviewing the elements of a claim for medical monitoring, the Court ultimately determined that the individual Plaintiff's failed to present evidence that they "were significantly exposed to a proven hazardous substance [and] suffered a significantly increased risk of contracting a serious latent disease as a result of the exposure." The Court granted summary judgment for Defendant as to the medical monitoring claim.

In the process of reaching this last conclusion, the Court reviewed the opinions of Drs. George Rodgers, Larry Robertson and Michael Kelly. Of critical importance in that analysis was the question of whether Plaintiffs' exposure to PCB's was sufficient to cause a significantly increased risk to Plaintiffs' health. Central to this issue was Rodgers' contention that even one molecule of PCB's is sufficient to cause an increased health risk. The Court analyzed that proposition as follows:

Plaintiffs remind the Court that in Paoli II the Third Circuit found that an expert testifying that even one molecule is sufficient to cause an increased health risk is admissible. Rodgers seems to make this statement in the Daubert hearing (Daubert hearing at 1161). This Court cannot agree that such a standard is appropriate or scientifically reliable. The Court finds no human or animal studies which demonstrate that such low levels of PCB exposure increased one's risk of cancer or other diseases, for that matter. Proof of more than such limited exposure must be required, unless the hazardous substance is demonstrated to cause injury or disease even in small doses. Such a standard is necessary if liability for the tort is to be something more than the whim of the jury.

As to the property damage claims, the Court determined that Dr. Birge's study established an actual contamination, even though the levels of PCB's on the properties were quite low. The Court concluded that Dr. Rodgers could not establish that these Plaintiffs were sufficiently exposed to PCB's to cause an increased risk to their health. The Court did not conclude that such an increased risk could not exist.

Prior to trial the Court directed a verdict in favor of Plaintiff on the issue of Defendant's negligence. After all the evidence was presented, the Court instructed the jury on the elements of negligent trespass and, among other things, required that it find the "PCB's from Defendant's facility are present on a Plaintiff's property in levels sufficient to cause real harm." Moreover, the Court instructed the jury that "evidence concerning fair market value must have a foundation in fact rather than being based merely upon subjective belief or a perceived stigma." After the jury could not reach a decision, the Court was forced to declare a mistrial.

On November 13, 1997, the Court considered and again rejected Defendant's motion for directed verdict. The Court did everything but sustain that motion. It noted the many weaknesses of the case, any number of which could have been viewed as fatal. Ultimately the Court did not feel comfortable dismissing the case. Referring to Dr. Rodgers' testimony, the Court concluded that "Plaintiffs have presented some evidence that even at levels this low, PCB's can be harmful." Ultimately, it is this last conclusion which this Court will re-examine.

Reviewing all these memoranda, the Court finds that it has dealt very consistently with difficult legal issues and rather inconclusive evidence. Some of the issues present difficult problems, such as the difference, as applied to these facts, between the standard of proof for a personal medical monitoring claim and a negligent trespass claim as to property. The Court will discuss that issue in Section III of this Memorandum Opinion. First, the Court will analyze the legal standard of proof under Plaintiff's claim for negligent...