Wright v. Willamette Industries, Inc.

• Decision Date: 19 September 1996
• Docket Number: No. 95-4227,95-4227
• Citation: 91 F.3d 1105
• Parties: 45 Fed. R. Evid. Serv. 377 Louis E. WRIGHT, Individually, and as Parent and Next Friend of Jamie L. Wright, Carolyn Wright, Clinton E. Wright, and Raymond Burton, Appellees, v. WILLAMETTE INDUSTRIES, INC., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1105

91 F.3d 1105

45 Fed. R. Evid. Serv. 377

Louis E. WRIGHT, Individually, and as Parent and Next Friend of Jamie L. Wright, Carolyn Wright, Clinton E Wright, and Raymond Burton, Appellees, v. WILLAMETTE INDUSTRIES, INC., Appellants.

No. 95-4227.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1996.

Decided Aug. 2, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

19, 1996.

Jim L. Julian, Little Rock, AR, argued (Janie Willbanks McFarlin and Michael T. Jackson, on the brief), for appellant.

James F. Swindoll, Little Rock, AR, argued (H.L. Slate, on the brief), for appellee.

Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The most significant issue in this toxic tort case is whether members of the Wright family, plaintiffs who prevailed at trial, produced sufficient evidence to submit their negligence claim to the jury. We find that they did not and therefore reverse the judgment of the district court.

I.

Appellant Willamette Industries owns a fiberboard manufacturing plant near the town of Malvern in western Arkansas. Willamette takes pine wood shavings and pulp and refines them into a fiber, which is then dried. A resin of urea formaldehyde is mixed with the fiber just prior to drying. It is undisputed that the plant emits particulate matter, part of which has been treated with formaldehyde, into the air. The Wrights live a short distance from the plant and claim to have suffered from a number of afflictions (e.g., headaches, sore throats, watery eyes, running noses, dizziness, and shortness of breath) which they blame on the emissions from the plant. The Wrights brought suit on a variety of theories and prevailed on their negligence claim. The jury awarded the five plaintiffs a total of $226,250.00 in compensatory damages for their personal injuries.

Willamette made a number of post-verdict motions for judgment as a matter of law, which the district court denied. On appeal, Willamette emphasizes, among other things, that the Wrights failed to make out a submissible case on the issue of proximate cause.

II.

We review a district court's denial of a motion for judgment as a matter of law by applying the same standard that the district court applied originally. Sherbert v. Alcan Aluminum Corp., 66 F.3d 965, 967 (8th Cir.1995). Willamette's motion for judgment as a matter of law should not be granted unless all the evidence points its way and is susceptible of no reasonable inferences sustaining the Wrights' position. See Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259, 1263 (8th Cir.), cert. denied, 513 U.S. 989, 115 S.Ct. 487, 130 L.Ed.2d 399 (1994); First Dakota Nat'l Bank v. St. Paul Fire & Marine Ins. Co., 2 F.3d 801, 808-09 (8th Cir.1993); Fed.R.Civ.P. 50(b).

The Wrights, of course, had the burden of proving proximate cause in order to recover under their negligence theory. See Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301-02 (8th Cir.1993) (applying Arkansas law); Ellsworth Brothers Truck Lines v. Canady, 245 Ark. 1055, 1057, 437 S.W.2d 243, 244 (1969). Proximate cause in Arkansas is defined as a " 'cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.' " Rogers v. Armstrong World Indus., Inc., 744 F.Supp. 901, 904 (E.D.Ark.1990) (quoting Ark.Model Jury Instr.Civil 3d ed. 501).

Willamette contends, among other things, that in order to shift the costs of their injuries to Willamette the Wrights had to demonstrate actual exposure to a toxic substance emitted from Willamette's plant at levels that are known to produce harms like the ones of which the Wrights complain. Willamette's emphasis on exposure levels is a reasonable one that is reflected in a number of recent toxic tort cases. See, e.g., Abuan v. General Elec. Co., 3 F.3d 329, 332-34 (9th Cir.1993), cert. denied, 510 U.S. 1116, 114 S.Ct. 1064, 127 L.Ed.2d 383 (1994); Chikovsky v. Ortho Pharmaceutical Corp., 832 F.Supp. 341, 345-46 (S.D.Fla.1993); Mateer v. U.S. Aluminum, Civ. No. 88-2147, 1989 WL 60442 (E.D.Pa. June 6, 1989). We agree with Willamette that a plaintiff in a toxic tort case must prove the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover.

The Wrights cite two Arkansas cases, Worthington v. Roberts, 304 Ark. 551, 803 S.W.2d 906 (1991), and Southwestern Bell Telephone Co. v. Smith, 220 Ark. 223, 247 S.W.2d 16 (1952), for the proposition that Arkansas does not require proof of the level of exposure in toxic tort cases. In Smith, a telephone company sprayed vegetation under its telephone lines, after which Mr. Smith's cows ate the vegetation and died; and in Roberts, pesticides drifted in a strong wind onto Mr. Roberts's property after a crop duster sprayed nearby fields, following which Mr. Roberts's trees and vegetation appeared to have been damaged. We believe that plaintiffs' reliance on these cases is misplaced. The reports of these cases do not reveal whether the plaintiff offered any proof concerning what levels of the relevant chemical might be expected to produce appreciable harm to animals or plants. The argument that defendants make in this case was simply not advanced in these previous Arkansas cases, and they are therefore of no precedential value on the precise question which concerns us here.

A legislature might well altogether outlaw a substance on the ground that it is known to involve a risk of appreciable harm to human beings, without having precise data on the question of how much harm, or what kind of harm, some specific amount of that substance might reasonably be expected to cause to some particular kinds of persons or even to an average or an ordinary person. Such legislation would presumably, as an ordinary matter, survive judicial scrutiny as a rational exercise of the police power. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464-70, 101 S.Ct. 715, 723-27, 66 L.Ed.2d 659 (1981); United States v. Carolene Prods. Co., 304 U.S. 144, 147-54, 58 S.Ct. 778, 780-85, 82 L.Ed. 1234 (1938); Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 209-10, 55 S.Ct. 187, 191-92, 79 L.Ed. 281 (1934). Indeed, the lack of precise information about the extent of a risk might well be seen as bolstering the legitimacy of a legislative prohibition rather than undermining it. There is an argument, however, that if the government could disseminate what information there is on the subject to the public in a relatively costless manner, or if the market were already providing it, then it would not be rational to prohibit trade in the relevant substance altogether. In other words, it is possible that a court might hold it irrational to prohibit the exercise of individual choice when bargaining parties are informed and market exchanges are possible.

Whatever may be the considerations that ought to guide a legislature in its determination of what the general good requires, courts and juries, in deciding cases, traditionally make more particularized inquiries into matters of cause and effect. Actions in tort for damages focus on the question of whether to transfer money from one individual to another, and under common-law principles (like the ones that Arkansas law recognizes) that transfer can take place only if one individual proves, among other things, that it is more likely than not that another individual has caused him or her harm. It is therefore not enough for a plaintiff to show that a certain chemical agent sometimes causes the kind of harm that he or she is complaining of. At a minimum, we think that there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered. See Abuan v. General Elec. Co., 3 F.3d at 333. We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant's emission has probably caused a particular plaintiff the kind of harm of which he or she complains before there can be a recovery.

In this case, while the Wrights proved that they were exposed to defendant's emissions and that wood fibers from defendant's plant were in their house, their sputum, and their urine, they failed to produce evidence that they were exposed to a hazardous level of formaldehyde from the fibers emanating from Willamette's plant. Their experts' information on this subject was simply insufficient. Dr. Fred Fowler, an...