___________ No. 95-4227

___________ Louis E. Wright, Individually, * and as Parent and Next Friend * of Jamie L. Wright, Carolyn * Appeal from the United States Wright, Clinton E. Wright, * District Court for the and Raymond Burton, * Western District of Arkansas. * Appellees, * * v. * * Willamette Industries, Inc., * * Appellants. *

___________ Submitted: March 11, 1996 Filed: August 2, 1996

___________ 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 m embers of the Wright family, plaintiffs who prevailed at trial, produce d sufficient evidence to submit their negligence c laim 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 manufacturingplant near the town of Malv ern 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

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mixed with the fiber just prior to drying. It is undisputed that the plan t emits particulate matter, part of which has been treated with formaldehyde , into the air. The Wr ights live a short distance from the plant and claim to h ave suffered from a number of afflictions ( e.g. , headaches, sor e throats, watery eyes, running noses, dizziness, and shortness of breath) which they blame on the emissions from the plant. The Wrights brought sui t
on a variety of theories and prevailed on their negligence claim. The jur y awarded the five plaintiffs a total of $226,250. 00 in compensatory damages for their personal injuries.

Willamet te made a number of post-verdict motions for judgment as a matte r of law, which the district court denied. On appeal, Willamett e 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 applie d 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 u nless all the evidence points its way and is susceptible of n o reasonable inferences sustaining the Wrights' position. See Jacobs Mfg. Co. v. Sam Brown Co. , 19 F.3d 1259, 1263 (8th Cir.), cert. denied , 115 S. Ct. 487 (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 burd en of proving proximate cause in order to recover under their negligence theory. See Jackson v. Ancho r Packing Co. , 994 F.2d 1295, 1301-02 (8th Cir. 1993) (applying Arkansa s 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

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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).

Willamett e contends, among other things, that in order to shift the costs of their injuries to Willamette the Wrights had to demonstrate actua l exp osure to a toxic substance emitted from Willamette's plant at level s that are known to produce harms like the ones of which the Wright s
com plain. Willamette's emphasis on exposure levels is a reasonable on e that is reflected in a number of recent toxic tort cases. See, e.g. , Abua n
v. General Elec. Co. , 3 F.3d 329, 332-34 (9th Cir. 1993), cert. denied , 11 4 S. Ct. 1064 (1994); C hikovsky 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 leve l of exposu re to the defendant's toxic substance before he or she ma y
recover.
The Wrights cite two Arkansas cases, Worthington v. Roberts , 30 4 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 prop osition that Arkansas does not require proof of the level of exposure in to xic tort cases. In Smith , a tele phone company sprayed vegetation under its telephone lines, afte r 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 whi ch 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 t o animals or plants. The argument that defendants make in this case wa s simply not

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advanced in these previous Arkansas cases, and they are therefore of n o 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 h ow much harm, or what kind of harm, some specific amount of that substance might reasonably b e expected to cause to some particular kinds of persons or even to an averag e or an ordinary person . Such legislation would presumably, as an ordinary matter, survive judicial scrutiny as a rational exercise of the polic e power. S ee, e.g. , Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456 , 464-70 (1981); UnitedStates v. Carolene Prods. Co. , 304 U.S. 144, 147-54 (1938); Borden's Co. v. Baldwin , 293 U.S. 194, 2 09-10 (1934). Indeed, the lack of precise infor mation about the extent of a risk might well be seen
as bol stering the legitimacy of a legislative prohibition rather tha n under mining it. There is an argument, however, that if the governmen t 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 relevan t substance altogether. In other words, it is possible that a court might hold it irrational to prohibit the exercise of individual choice whe n bargaining parties are informed and market exchanges are possible. Whatever may be the considerations t hat ought to guide a legislature in its determination of what the general good re quires, courts and juries, in deciding cases, traditionally make more particularized inquiries into matters of cause and effect. Actions in tort for damages focus on th e question of whether t o 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 othe r things, that it is more likely than not that another individual has

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caused him or her harm. It is therefore not enough for a plaintiff to sho w that a certain chemical agent sometimes causes t he kind of harm that he or she is complaining of. At a minimum, we think t hat there must be evidence fromwhich the factfinder can conclude that the plaintiff was exposed to leve ls of that agent that are known to cause the kind of harm that th e plaintiff claims to have suffered. See Abuan v. General Elec. Co. , 3 F.3d at 333. We do not re quire a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person cou ld conclude that a defendant's emission has probably caused a particular plaintiff the kind of harm of which he or she complain s before there can be a recovery.

In thi s case, while the Wrights proved that they were exposed t o defendant's emissions and that wood fibers from defendant's plant were in their house, their sputum, and their urine, they failed to produce evidenc e that they were exposed to a hazardous level of formaldehyde from the fiber s emanat ing from Willamette's plant. Their experts' information on thi s subject was simply insufficient. Dr. Fred Fowler, an industrial hygienist , and Dr. Jimmie Valent ine, a pharmacologist, did offer testimony about the lev els of gaseous formaldehyde that might be expected to cause symptom s like the ones that pl aintiffs claim to have experienced. But the Wrights do not claim to have been injured from breathinggaseous formaldehyde, and theymake no reference to any studies that reveal the levels of exposure to wood fibers impregnated with formaldehyde that are likely to produc e adverse c onsequences. It is true that Dr. Frank Peretti, after a grea t deal of prodding, testified that the Wrights' complaints were more probabl y than not related to exposure to formaldehyde, but that opinion was no t based on any knowledg e about what amounts of wood fibers impregnated with form aldehyde involve an appreciable risk of harm to human beings wh o breathe them. The trial court should therefore have excluded Dr. Peretti' s testimony, as Willamette requested it to do, because it was not based on scientific knowledge. See Daubert v. Merrill

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Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589-91 (1993); Fed. R. Evid. 702; Fede ral Judicial Center, Reference Manual on Scientific Evidence 47-4 8 (199 4). Dr. Peretti's testimony regarding the probable cause of th e Wrights' claimed injuries was simply speculation.

The jury could therefore only have speculated about whether th e amount of formaldehyde from Willamette's plant t o which each plaintiff was exposed was sufficient to cause their injuries o r, indeed, any injuries at all. (To the extent that plaintiffs' theory of causation and harm related to the wood fibers rather than the formaldehyde on those fibers, the proof
was infir m for the same reason, namely, failing to offer proof that th e plaintiffs were exposed to wood fibers at levels capable of causin g injury .) Without proving hazardous levels of exposure to Willamette' s formaldehyde, the Wrights failed to carry their burden of proof at trial
on the issue of causation because the evidence failed to support a
reason able inference in favor of the jury's implicit finding agains t Willamette on the causation issue.

III. Judge H eaney, in his dissenting opinion, disagrees with ou r characterization of this case as being about mon ey, and expresses the view that this "fails to acknowledge the important human elements regarding the injur ies at issue." But lawsuits, unless they seek only a declarator y judgment, are always either about money or some form of specific relief. Those are the only kinds of relief that a court can give, and in this case all the plaintiffs as ked for was money. Our characterization of the case is therefore the plai ntiffs' characterization of it. Money, moreover, is not pr operly to be contrasted with human or humane concerns. To th e
con trary, the reason that we compensate people (that is, transfer mone y fromde fendants to plaintiffs) is because rights that are grounded i n considerat ions of humanity have been violated. We believe that it i s humane to monetize welfare losses associated

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with g rief, pain and suffering, humiliation, mental anguish, and othe r intangible injuries s o that we can make plaintiffs whole. What we do not do, again for reasons grounded in humanity, is force a defendant t o compensate a plaintiff if the plaintiff does not show that the defendant has probably done something to him.

IV. For the foregoing reasons, we reverse the judgment of the distric t court.
HEANEY, Circuit Judge, dissenting.
For eight days, an Arkansas jury listened to the evidence presented by both parties. The case was submitted to the jury on instructions that
were not objected to by the defendant. After deliberation, the jur y returned verdicts in favor of the Wright family. The defendants then move d the di strict court for judgment notwithstanding the jury verdict fo r substanti allythe same reasons that are raised on this appeal. Th e district court judge, who had presided over the entire trial, denied the defe ndant's motion. I believe the jury's and the judge's first-han d impression of the evi dence should be sustained in this case. Therefore, I respectfully dissent.

It is und isputed that the Willamette plant emits minute wood fibers lac ed with formaldehyde. It is also undisputed that because Willamett e failed to install equipment that would have significantly lowered th e emissi ons, the levels of formaldehyde emitted from the plant exceede d levels permitted by industry and state standards.
The Wright family lives within three-quarters of a mile of the plant. There is uncontradicted evidence that emissions from the plant fell like "snow" on the Wrights' property to the extent that overnight emission s could be seen on cars. Fibers from the plant

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were also found in the Wrights' air conditioner. The Wright family wa s examined by physician s and significant levels of toxic emissions from the plant wer e found in their sputum and urine. The Wright family suffere d fromh eadaches, sore throats, watery eyes, runny noses, dizziness, an d shortn ess of breath, which the treating physician testified were mor e probably than not rel ated to their exposure to the plant emissions. This testimony was properly received.
Having heard all of the above eviden ce, the jury determined that the Wright family's disabilities were a direct resul t of the constant exposure to the formaldehyde t hat was emitted from the Willamette plant. Clearly, the evidence presented was sufficient to sustain the verdict. We should not substitute our judgment for that of the jury.
The major ity argues that the jury verdict must be set aside because
no scientific studies were introduced to establish that formaldehyde-laced , minute fibers involve an appreciable risk of harm to humans who breath e them. There are at l east two answers to this argument. First, there was abundant testimony th at distinguished the effects on human health of dust and other nontoxic air pollutants from formaldehyde. The former bein g largely benign and the latter being harmful. Second, the State of Arkansa s has made a determination that it is harmful to health to discharg e formaldehyde minute particles and gases into the atmosphere. Of course, there must be testimony that the toxins found th eir way into the bodies of the humans, but there was more than sufficient evidence on this score.

I do no t disagree with the majority's statement that there must b e evidence from which the jury could find that the Wrights were exposed to levels of formaldehyde that are known to cause the harm that the Wrigh t fam ilysuffered. In fact, however, the required evidence was produced

. The State of Arkansas has

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determined that no plant shall emit formaldehyde because such emissions ar e dangerous to the heal th of persons who ingest them. Willamette failed to install available equipment to control the discharge of this particulate matter in either the solid or gaseous form. The formaldehyde emission s found their way to the Wrights' property. They were found in the family's air conditioner, and more importantly, in the family's sputum and urine. Competent medical testimony was presented that stated that it was mor e probable than not that their illness was caused by the formaldehyde. Thus , the circle was comple te and proximate cause established. Dr. Peretti may
or may not have been prodded to relate the Wrights' illnesses t o formaldehyde, but he did; and the jury could have rejected his testimony if it did not believe him.
Finally, the majority dehumanizes th e issues in this case by stating that the focus on cases of this type is the transference of money. This fails to acknowledge the important human elements regarding the injuries at issu e and the responsibility of Willamette to comply with properl y established health and safety standards that can be met by installing stat e of the art equipment.

For al l of the reasons stated above, I would affirm the distric t court and permit the jury verdict to stand.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.