Miller v. Cudahy Co.
| Decision Date | 03 March 1987 |
| Docket Number | Civ. A. No. 77-1212. |
| Citation | 656 F. Supp. 316 |
| Parties | Cecil W. MILLER and Mildred E. Miller, Joint Tenants; Margaret L. Birchenough, Testamentary Trust, Donald L. Birchenough, Ansel Tobias and Walter Wright, Trustees; Ruth M. Hollinger, Individually and as Joint Tenant with Delbert Hollinger; John E. Edwards and Kermit C. Edwards, Joint Tenants; Homer Sharpe; Cecil M. Tobias and Frances Tobias, Joint Tenants; Paul F. Westrup and Ardis B. Westrup, Joint Tenants; Jay Brothers; Lyle Brothers, Individually and as Joint Tenant with Patricia R. Brothers; Alvin Engelland; Ansel Engelland; Jack Engelland and Vivian M. Engelland, Joint Tenants; Gerald M. Jones and Donna Jones, Joint Tenants; Robert A. Johannsen; Raymond E. Tobias; Gary Zwick; Lester Colle; Harvey Willhaus and Marilyn Willhaus, Joint Tenants; Edris Edwards; Edward F. Janda and Anna Mae Janda, Joint Tenants; Harry Zwick; Arthur H. Oden; Jolene J. Ottlinger; and William L. Bemis and Dorothy Bemis, Joint Tenants, Plaintiffs, v. CUDAHY COMPANY, a Delaware Corporation, and General Host Corporation, a New York Corporation, Defendants. |
| Court | U.S. District Court — District of Kansas |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Turner & Boisseau Chartered, Great Bend, Kan., Deborah Carney, Golden, Colo., for plaintiffs.
Ron Campbell, Thomas D. Kitch of Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for defendants.
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.
C. Dickens, Bleak House.
In 1908, the predecessor of American Salt began a salt production operation southeast of Lyons, Rice County, Kansas. Salt production has continued at that location continuously since. Also beginning in 1908, commensurate with the salt production, highly concentrated brine began running Defendants' Trial Exhibit A. This, too, has apparently continued in varying degrees and fashions ever since. By as early as 1927, a neighboring landowner began finding his underground water supply contaminated with chlorides from the brine, and was forced to haul domestic water to his house.
The pollution continued. The Kansas Board of Health became involved in 1933. In the next year, neighboring farmers hired an attorney who protested to the American Salt plant concerning the injury from the salt runoff, and demanded damages. The salt company demurred, claiming that the pollution was not solely its fault, and detailed to the farmers the plant's new pollution control improvements that would cure any pollution problems then in existence. The year was 1935.
The pollution continued. Complaints continued. More state investigations were conducted. The salt plant, in conjunction with the state Board of Health, continued to make "antipollution improvements." The farmers bore children, raised them to adulthood, and died. Their children took over the farming operations. Land was sold, or inherited by new generations. General Host Corporation acquired Cudahy Company, including its American Salt Division. The Board of Health's responsibilities for this problem were assumed by the Kansas Department of Health and Environment KDHE. Irrigation plans were abandoned. Suits were threatened. The pollution continued.
This Dickensian matter was brought to this Court when a complaint was filed on May 31, 1977. Discovery proceeded in a most unusual and contentious manner, and a pretrial order was finally filed on March 9, 1982. Defendants then filed an extremely lengthy motion for partial summary judgment on November 2, 1982, the general thrust of which was that the suit was barred by the statute of limitations. Defendants argued that since they had been polluting the underground aquifer for so long, it was no longer actionable: they had in essence acquired a license to pollute based on long-standing habit. After being deluged with heavy briefing by both sides, this Court squarely rejected defendants' "prescription by pollution" theory, and held that the continuing nature of the pollution emanating from the plant was sufficient to categorize it as a continuing nuisance causing temporary damages, giving rise to a continuing series of causes of action. Miller v. Cudahy Co., 567 F.Supp. 892 (D.Kan. 1983).
The matter was called for a bench trial on March 26, 1984, and concluded on May 15. This Court handed down its opinion in the matter on August 13, 1984. Miller v. Cudahy Co., 592 F.Supp. 976 (D.Kan.1984). Therein, the Court found defendants liable to plaintiffs for actual damages to growing crops in the amount of $3,060,000.00, and also found defendants liable for punitive damages in the amount of $10,000,000.00. Because of trial testimony indicating that a cleanup of the aquifer might be technologically feasible, the Court ordered the punitive damage award held in abeyance pending evaluation of potential cleanup alternatives. The Court ordered the defendants to undertake an investigation of the aquifer in conjunction with an expert to be designated by the plaintiffs, to keep the Court apprised of their discoveries, and to prepare a final report on the available scientific cleanup alternatives. Pending this, the Court retained jurisdiction over the punitive damage award. The Court certified the judgment of liability and the judgment for actual damages as a final appealable judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. After defendants' motion for a new trial had been denied, they filed notice of appeal on March 18, 1985. However, the Tenth Circuit dismissed the appeal as premature on February 3, 1986, so the case is still before this Court in full.
Investigation towards a possible cleanup began, and a status conference was held before this Court the month after judgment was entered, on September 11, 1984. Defendants procured the expertise of Paul Roux of Roux Associates, Inc., New York, New York, ground water geologists; and of Leonard Eder of Eder Associates Consulting Engineers, p.c., Locust Valley, New York. Plaintiffs retained the services of Dr. Dan Raviv, a ground water hydrologist from West Orange, New Jersey, to monitor and evaluate what the defendants were doing. Plaintiffs had used Dr. Raviv extensively in discovery and trial, and the Court had already found his credibility high and his integrity impeccable. Almost immediately, the remedial investigation became a problem in its own right. Continual controversies arose over plaintiffs' denying defendants access to their lands for the purposes of conducting their investigations, and regarding damages resulting from such access. Progress reports were filed, but it became apparent that the ecological situation was more complex than originally envisioned. The Court had initially ordered that a final report on available alternatives be filed within eight months of the August 13, 1984 Opinion and Order, but it was not until November 20, 1985 that defendants' four volume proposed remedial action plan with supporting documents was filed. That plan, and the subsequent developments of proposed plans, will be discussed later in this Opinion.
In the meantime, numerous motions, related to the cleanup only tangentially if at all, inundated the Court. Following the Court's Order in August of 1984, the expected motions for an amended judgment or new trial, along with motions regarding costs taxed by the Clerk, were filed. But in August of 1985, defendants filed their second (though not last) motion for a new trial. From then until this past summer not a month went by without one of the parties filing a substantive motion of some form for this Court's determination: motions to compel, to quash, to strike; motions for Court appointed experts, for evidentiary hearings, for temporary restraining orders; motions to preclude evidence, to disqualify law firms, to strike affidavits. In the month of February, 1986, alone, six substantive motions, not including motions for extension of time (which inevitably engendered their own controversies), were filed for this Court's consideration. Each motion required responsive filings, some necessitated hearings, all consumed vast amounts of the parties' and the Court's time. While not intimating that the parties' filings of these motions were procedurally impermissible, the Court nonetheless found them frustrating to the original intent of retaining jurisdiction over the case for the sole purpose of considering remedial cleanup plans for potential...
To continue reading
Request your trial
-
American Motorists Ins. Co. v. General Host Corp.
...court orders, of which three may be found in the West publications: 567 F.Supp. 892 (D.Kan.1983), 592 F.Supp. 976 (D.Kan.1984) and 656 F.Supp. 316 (D.Kan.1987). For purposes of this matter, it is sufficient now to say that this Court found for plaintiffs in Miller, and awarded them $3.06 mi......
-
Miller v. Cudahy Co.
...American Salt and area farmers, described the historical background of this case as "Dickensian" in nature. Miller v. Cudahy Co., 656 F.Supp. 316, 319 (D.Kan.1987) (Miller III ). Final resolution of this lawsuit itself required nearly a decade. On May 31, 1977, appellees filed their complai......
-
Sunshine Jr. Stores, Inc. v. State, Dept. of Environmental Regulation
...to take reasonable steps necessary to apprise oneself of the true state of facts is justified. An instructive case is Miller v. Cudahy Co., 656 F.Supp. 316 (D.Kan.1987), aff'd in part relevant herein, rev'd in part, 858 F.2d 1449 (10th Cir.1988), cert. denied, 492 U.S. 926, 109 S.Ct. 3265, ......
-
Federated Mut. Ins. Co. v. Botkin Grain Co., Civ. A. No. 91-1223-MLB.
...and brought to the attention of the insurance company during the term of the policy. Id. 9 The district court's opinion is reported at 656 F.Supp. 316. ...
-
Environmental Liabilities in Probate: Serious Risks for the Probate Lawyer
...must make some inquiry about the existence of hazardous wastes when obtaining an interest in real property"). 36. Miller v. Cudahy Co., 656 F.Supp. 316 (D.Kan. 1987) (200-year cleanup plan involving many parties). Column Ed.: Jane I. Caddell of Lentz Evans & King, P.C., Denver---(303) 861-4......
-
CHAPTER 1 OVERVIEW OF GROUNDWATER CONTAMINATION AND BASIC CONCEPTS OF WATER LAW
...Western Petroleum, Inc., 657 P. 2d 267 (Utah 1982). [89] Tarlock at 4-27. [90] Miller v. Cudahey Co., 592 F. Supp. 976 (D. Kan. 1984), 656 F. Supp. 316 (D. Kan. 1987). [91] Tarlock at 4-25. ...