Renaud v. Martin Marietta Corp., Inc.

• Decision Date: 04 August 1992
• Docket Number: No. 91-1007,91-1007
• Citation: 972 F.2d 304
• Parties: , 25 Envtl. L. Rep. 20,936, 36 Fed. R. Evid. Serv. 349 James Earl RENAUD, et al., Plaintiffs-Appellants, v. MARTIN MARIETTA CORPORATION, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 304

972 F.2d 304

35 ERC 1900, 25 Envtl. L. Rep. 20,936,

36 Fed. R. Evid. Serv. 349

James Earl RENAUD, et al., Plaintiffs-Appellants, v. MARTIN MARIETTA CORPORATION, INC., et al., Defendants-Appellees.

No. 91-1007.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 1992.

Michael Hausfeld of Cohen, Milstein, Hausfeld & Toll, Washington, D.C. (Richard Lewis and Anthony Z. Roisman of Cohen Milstein, Hausfeld & Toll, Washington, D.C., Kathleen Mullen, John R. Holland, Denver, Colo., William Finger of Frank & Finger, Evergreen, Colo., with him on the brief), for plaintiffs-appellants.

Daniel S. Hoffman (Daniel J. Dunn, R. Craig Ewing, and John D. McCarthy, with him on the brief), of Holme Roberts & Owen, Denver, Colo., for defendant-appellee Martin Marietta Corp.

Arthur R. Karstaedt III of Hall & Evans (Robert W. Harris, Chris A. Mattison and Christopher Cipoletti of Hall & Evans; Michael L. Walker, Henry C. Teigen, Casey S. Funk of the Denver Water Dept., Denver, Colo., with him on the brief), for defendant-appellee City and County of Denver.

Before: SEYMOUR and ANDERSON, Circuit Judges, and OWEN, District Judge. ^*

OWEN, District Judge.

In this major toxic tort action against the Martin Marietta Corporation ("Martin") and the City and County of Denver, Colorado, acting through its board of water commissioners, the Denver Water Board ("DWB"), plaintiffs allege that as residents of the Friendly Hills suburb of Denver, they suffered catastrophic injuries as a result of their drinking and other use of water contaminated at Martin's Waterton plant and thereafter supplied to residents by DWB's Kassler Water Treatment Plant.

Plaintiffs severally allege that as children and adults in Friendly Hills over the period between 1979 and 1986, they developed cancer or leukemia or seizure disorders or birth defects of the heart. Two children died of cancer. They attribute these tragic occurrences to hydrazines in their water due to Martin's gross failure to properly dispose of hazardous wastes (concededly including hydrazines) resulting from Martin's manufacture of the Titan missile and other aerospace equipment. DWB is charged with inadequately sampling and treating the contaminated water at its Kassler plant.

In an unusually structured procedural setting, the District Court granted summary judgment to both defendants, dismissing the action with prejudice concluding that the proffer by plaintiffs of certain expert testimony fell short of admissibility, and, this proffer being the sole proof on the essential element of plaintiffs' exposure to contaminated water, the action failed. The District Court's opinion, familiarity with which is presumed, is reported at Renaud v. Martin Marietta Corp., 749 F.Supp. 1545 (D.Colo.1990).

Certain facts are undisputed. Martin's facility, in Waterton, Colorado, is two miles uphill and upstream from Kassler. Two of Kassler's sources of water were Brush Creek, flowing through Martin's facility and used by Martin in its hazardous waste treatment process, and alluvial ground water, much of which originated in or passed through Martin's property. This water at Kassler percolated through infiltration galleries into a five-sided well where it was treated and mixed with substantial amounts of filtered water.

Kassler's water was thereafter chlorinated and distributed to a number of metropolitan Denver neighborhoods. Some received all of their water from Kassler, while others received a mix of waters from Kassler and other DWB sources. These latter neighborhoods included Friendly Hills, plaintiffs' community, over ten miles from Kassler, which never received more than ten percent of its water from Kassler, and that only for the periods June 1977 through December 1980, and from June 1982 through mid-February 1983. Most of Friendly Hills' water came from the Marston Water Treatment Plant, located less than two miles away from Friendly Hills.

In January, 1985, the Colorado Department of Health discovered trichloroethene, ¹ a solvent, in water being treated at Kassler. Kassler was immediately closed and has not reopened. In 1985, the state of Colorado charged Martin with past and continuing violations of the Colorado Hazardous Waste Act causing significant contamination of ground water, and the Federal Environmental Protection Agency issued a cease and desist order to Martin for unpermitted discharge of hydrazine waste water into Brush Creek. In 1986, Martin entered into a compliance agreement with the state of Colorado and paid $1 million in civil penalties.

Plaintiffs commenced this action in January of 1987. Given its broad nature, the Court, consulting with counsel, eventually determined that the most expeditious procedure to advance the case would be to hold a series of summary judgment proceedings at which evidence would be taken. Plaintiffs were to present their prima facie case on causation as if they were presenting the case to the jury at trial, with the Court to determine whether, on the record thus presented, a reasonable juror could have a basis for concluding that plaintiffs had been exposed to contaminants from Martin's plant--that is, that the water coming out of plaintiffs' taps contained contaminants in sufficient quantities to probably cause the injuries plaintiffs alleged. If the Court determined that plaintiffs had met their prima facie burden, then the Court would schedule a test trial in which all of the claims of one or two representative plaintiffs would be tried to a jury.

In accordance with this procedure, a five-day evidentiary hearing was held in July 1990. The evidence plaintiffs presented was categorized by the Court below as follows:

1. factual evidence of contamination at Waterton; 2. expert testimony regarding the levels of contamination at Waterton and the proportion of these contaminants that were transported to Kassler (chemical fate and transport testimony); 3. Kassler water that was actually received by Friendly Hills residents and the levels of contaminants that were in this water (water distribution testimony); and 4. expert testimony regarding the probable cause of plaintiffs' primary injuries (medical causation testimony).

Renaud, 749 F.Supp. at 1548.

To this evidence, the Court below applied certain basic legal principles: 1) Any dispute as to a fact material to the outcome would require denial of summary judgment. See Florom v. Elliott Mfg., 867 F.2d 570, 574 (10th Cir.1989); 2) there must be a basis, on any view of the evidence, upon which a reasonable juror could conclude that contaminants from Martin reached the plaintiffs' taps in quantities sufficient to cause the alleged injuries. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); 3) there must be a basis upon which a reasonable juror could find proximate cause. Under Colorado law, an event is regarded as the proximate cause of an injury "if in the natural and probable sequence of things, it produced the claimed injury. It is an event without which the injury would not have occurred." See In re Swine Flu Immunization Products Liability, 495 F.Supp. 1188, 1206 (D.Colo.1980). Or, defined as "causation" in a toxic tort case, there must be a basis in plaintiffs' evidence that would support a reasonable juror's conclusion that defendants had caused plaintiffs' exposure to toxic contamination and that such exposure had caused, or contributed to, plaintiffs' injuries. See Brafford v. Susquehanna Corp., 586 F.Supp. 14, 17-18 (D.Colo.1984). In sum, in this summary judgment setting, the Court below saw itself as being required to deny the motion should there be a prima facie evidentiary showing by the plaintiffs that would support a jury finding that it was reasonably probable that the plaintiffs' injuries resulted from, or were caused by, Martin's contamination in combination with Kassler's neglect. See Swine Flu, 495 F.Supp. at 1206.

The District Court, applying the foregoing to the plaintiffs' evidence, concluded:

Certain issues were clearly established at the hearing. Despite defendants' assertions to the contrary, the evidence was overwhelming that there was massive contamination at Waterton. The evidence of observed discharges and the discovery of trichloroethene in the Kassler water supply constituted ample evidence that Martin's hazardous waste standard operating procedures were not followed, its hazardous waste treatment system was mechanically flawed, or some combination of both. The existence of plaintiffs' injuries, other than the alleged seizure disorders, was uncontested. However, proof that Martin committed reprehensible acts coupled with evidence of injury is not enough to prevail on a tort claim. Plaintiffs must prove that the reprehensible acts caused, or increased the likelihood of, the alleged injuries.

Renaud, 749 F.Supp. at 1551.

Plaintiffs' evidence on causation, which the Court below had before it to answer the question left open above, consisted of expert postulation that waste water containing a constant concentration of hydrazines and other contaminants had been discharged by Martin into Brush Creek on a regular basis over an 11-year period and that these contaminants in somewhat smaller percentages arrived at Kassler and were thereafter delivered in measurable quantities to Friendly Hills residents. ² This 11-year postulation by plaintiffs was extrapolated back by their experts from a single water sample, taken from Martin's waste water Pond T8-A in 1985, two years after plaintiffs in Friendly Hills had gotten their last water from Kassler. ³

As to this, which constituted plaintiffs' entire presentation of direct evidence of causation, the Court below concluded that an 11-year fate and transport model, supported by only a single data...