Reynolds Metals Company v. Yturbide

• Decision Date: 13 October 1958
• Docket Number: No. 14990-14992.,14990-14992.
• Citation: 258 F.2d 321
• Parties: REYNOLDS METALS COMPANY, Appellant, v. Paula Martin YTURBIDE, Appellee. REYNOLDS METALS COMPANY, Appellant, v. Verla MARTIN, Appellee. REYNOLDS METALS COMPANY, Appellant, v. Paul MARTIN, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

258 F.2d 321 (1958)

REYNOLDS METALS COMPANY, Appellant, v. Paula Martin YTURBIDE, Appellee.

REYNOLDS METALS COMPANY, Appellant, v. Verla MARTIN, Appellee.

REYNOLDS METALS COMPANY, Appellant, v. Paul MARTIN, Appellee.

Nos. 14990-14992.

United States Court of Appeals Ninth Circuit.

June 5, 1958.

Certiorari Denied October 13, 1958.

King, Miller, Anderson, Nash & Yerke, Frederic A. Yerke, Jr., Clifford N. Carlsen, Jr., David R. Tillinghast, Portland, Or., Joseph H. McConnell, Gustav B. Margraf, W. Tobin Lennon, Richmond, Va., for appellant.

George W. Mead, Irving Rand, Portland, Or., for appellees Paul Martin, Verla Martin, and Paula Martin.

Frank L. Seamans, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Pa., Gordon Johnson, R. W. Koskinen, Oakland, Cal., Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., E. J. Spielman, Torrance, Cal., R. E. McCormick, New York, N. Y., Turner McBaine, Pillsbury, Madison & Sutro, San Francisco, Cal., Edward W. Rothe, Veder, Price, Kaufman & Kammholz, Chicago, Ill., amici curiae.

EN BANC. — Before STEPHENS, Chief Judge, and HEALY, POPE, LEMMON, CHAMBERS, BARNES and HAMLEY, Circuit Judges.

Certiorari Denied October 13, 1958. See 79 S.Ct. 66.

POPE, Circuit Judge.

In July, 1946, Reynolds Metals Company, a Delaware corporation, acquired through lease, an aluminum plant belonging to the Government and located at Troutdale, Oregon. It commenced operation of its first potline for the production of aluminum in September of that year. In the operation of the plant chemical compounds containing aluminum were collected in the reduction cells of the so-called "pots" and were reduced or separated by the process of electrolysis or passage of current through the cell. In the process, temperatures up to 1775° F. were developed. As the compounds with which the cells were charged, (cryolite or sodium fluoride or calcium fluoride and aluminum fluoride) contain large percentages of fluorine ranging around 50 percent, a considerable portion of fluoride material was volatilized in the process and reached the atmosphere.¹

Shortly after the operation of the plan began, and in December, 1946, the appellees in these three appeals, Paul Martin, his wife, Verla Martin, and his daughter, Paula Martin (now Mrs. Yturbide), moved to their cattle farm or ranch near Troutdale located about a mile to a mile and one-half from the aluminum plant, and they resided there until November, 1950. The law suits out of which these appeals grew were based upon claims that during the period of their residence on the farm they were poisoned by fluorides which originated at the appellant's plant and were borne on the air to the farm where they breathed these fluoride effluents claimed to be highly toxic and also ate vegetables growing in their garden which also had been absorbing the same toxic elements.²

The principal question presented here is whether the evidence adduced at the trial below, (the three cases were tried together and upon the same evidence) was sufficient to permit the case to go to the jury. Upon the part of the appellant it is contended, (1) that there was insufficient proof to demonstrate that the damage to the persons of the plaintiffs, of which they complain, was caused by the fluorides escaping from defendant's plant; and (2), that there was no evidence of any negligence, or any other breach of duty, on the part of the defendant.

With respect to the question of causation: — whether the escaping fluorides did in fact cause plaintiffs' injuries, — the evidence was sufficient to warrant the jury's conclusion that the escaping fluorides were the cause of the injuries. It was not disputed, in fact it was stipulated, that "fluorides in some quantities and forms, did escape, when the potlines of said plant were operating, from defendant's plant." The pre-trial stipulation, after stating the specific fluoride combinations which did escape in the form of gases, liquids and solids, and which became air-borne, recited that "portions thereof have settled at various times upon the lands" of the Martins.

A horticulturist from the Oregon State College, in the years 1948, 1949 and 1950 made test samples of plants grown on selected plots in the vicinity of the Martin property, for the purpose of determining the fluorine content of such plants. Some of the test plots used were on the Martin property and as close as 1.1 miles from the aluminum plant. Others located in the same direction from the plant were farther away. Those plants tested on plots nearest the aluminum plant showed substantial amounts of fluorine content. The plants tested on plots which were farther away from the plant showed a subtantially decreasing fluorine content, thus indicating that relatively speaking the nearer the aluminum plant the greater the concentration of the gases, fumes and particulates, (i. e. fine solids). In making such test, plants which readily absorbed fluorine compounds such as buckwheat and gladioli were used so as to facilitate the testing. The results therefore did not indicate the quantities of fluorine which would likely be found in garden vegetables such as those the Martins grew in their garden plot for their domestic use.

In general there was an absence of proof as to just what quantities of fluorides contained in these gases, fumes, and particulates, passed over the Martin land or were inhaled by them or ingested from the garden vegetables eaten by them. There was, however, proof that these fluorides were toxic. One of the chemists who testified stated without challenge that hydrofluoride acid or hydrogen fluoride, one of the effluents from the plant, was "quite toxic" and that "the books on chemistry warned against inhaling it." Appellant concedes that such fluorides "are poisonous in excessive amounts."

That very large quantities of these gases, fumes, and particulates, did leave the plant and were diffused into the air, was unquestioned. Appellant's own exhibits disclose that with the equipment which was used to control the escape of gases during the period that the Martins lived on their farm, hundreds of pounds of these effluents escaped each day. Thus in the year 1947, the amount of fluorine alone escaping per day from the plant averaged 2845 pounds. Comparable amounts escaped in the years 1948-1949 and throughout the first half of 1950, after which time the appellant began the installation of a new control system which was much more efficient in arresting the escape and fall-out.

There is no showing as to where these large quantities of effluents finally settled. The experiments mentioned above would indicate that the greater portion settled on those areas nearest the plant, and those areas included the Martin farm. That the effluents did have some degree of toxic or harmful effect was indicated by proof that cattle upon the Martin place showed damage from fluorosis. Generally with respect to cattle it does not appear to have been controverted that cattle damage from an aluminum plant is a fairly common phenomenon.³

Of course it does not follow from mere proof of some damage to cattle on the Martin place that the plaintiffs' physical injuries were due to excessive amounts of fluorides from the plant. Cattle get their whole food from grass and ingest large quantities. A human diet contains a relatively small proportion of vegetables. For the purpose of this opinion we assume that the evidence that cattle on the Martin place showed injury to health from fluorides has no significance here other than to show the fluorides did reach the Martin place in some quantity and that in some quantity the ingestion of affected plants may possibly cause illness in a mammal.⁴

A significant bit of testimony adduced was proof that glass in the Martin home became etched by acid, probably hydrofluoric acid which was one of the effluents from the aluminum plant. One of the expert witnesses, the British doctor who had some prior experience with similar etching of glass located near industrial plants abroad, testified that the glass from the Martin window which he was shown during the testimony was an indication of excessive quantities of fluoride contamination in the atmosphere.

Although the cases of the Martins are unique in that they were unable to produce either from medical literature or expert witnesses histories of persons situated as they were, namely, persons not working in the plant but simply living outside and near the plant, who developed symptoms similar to theirs in consequence of the fall-out of emanations from an aluminum plant, (see footnote 5a infra) nevertheless they did produce substantial medical testimony which did connect their disabilities and physical injuries with the fluorides escaping from the plant. Of course there was also testimony to the contrary, but the evidence adduced on their behalf, principally from the British medical expert referred to in footnote 3, supra, and from a Dr. Capps, a Chicago specialist on diseases of the liver, was substantial, and in our view, fully worthy of credit. Dr. Capps had been consulted by the Martins in November, 1951; Dr. Hunter, the British expert, examined the Martins shortly before the time of the trial; he also reviewed the laboratory and other tests made with respect to them by Dr. Capps and by other physicians who had examined them. Their's was not the only medical testimony adduced in support of the claims of the Martins, but it was probably the most complete. Their qualifications to testify was not only adequate but their experience with the subject upon which they testified was outstanding.⁵ For the purposes of this opinion it is sufficient to say that the evidence clearly warranted the jury in accepting the testimony and conclusions of these doctors. Hence there is no point in undertaking to detail their testimony at length.⁶

The medical witnesses expressed confidence in their conclusions because of the fact that they...