___________

No. 95-4227

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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. *

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 Submitted: March 11, 1996

 Filed: August 2, 1996

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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
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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, 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 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
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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).

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, 114

S. Ct. 1064 (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
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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 (1981); United States v. Carolene Prods. Co., 304 U.S. 144, 147-54

(1938); Borden's Co. v. Baldwin, 293 U.S. 194, 209-10 (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
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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 industrial hygienist,

and Dr. Jimmie Valentine, a pharmacologist, did offer testimony about the

levels of gaseous formaldehyde that might be expected to cause symptoms

like the ones that plaintiffs claim to have experienced. But the Wrights

do not claim to have been injured from breathing gaseous formaldehyde, and

they make no reference to any studies that reveal the levels of exposure

to wood fibers impregnated with formaldehyde that are likely to produce

adverse consequences. It is true that Dr. Frank Peretti, after a great

deal of prodding, testified that the Wrights' complaints were more probably

than not related to exposure to formaldehyde, but that opinion was not

based on any knowledge about what amounts of wood fibers impregnated with

formaldehyde involve an appreciable risk of harm to human beings who

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;

Federal Judicial Center, Reference Manual on Scientific Evidence 47-48

(1994). Dr. Peretti's testimony regarding the probable cause of the

Wrights' claimed injuries was simply speculation.

The jury could therefore only have speculated about whether the

amount of formaldehyde from Willamette's plant to which each plaintiff was

exposed was sufficient to cause their injuries or, 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 infirm for the same reason, namely, failing to offer proof that the

plaintiffs were exposed to wood fibers at levels capable of causing

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

reasonable inference in favor of the jury's implicit finding against

Willamette on the causation issue.

III.

Judge Heaney, in his dissenting opinion, disagrees with our

characterization of this case as being about money, and expresses the view

that this "fails to acknowledge the important human elements regarding the

injuries at issue." But lawsuits, unless they seek only a declaratory

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 asked for was money. Our characterization of the case

is therefore the plaintiffs' characterization of it. Money, moreover, is

not properly to be contrasted with human or humane concerns. To the

contrary, the reason that we compensate people (that is, transfer money

from defendants to plaintiffs) is because rights that are grounded in

considerations of humanity have been violated. We believe that it is

humane to monetize welfare losses associated
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with grief, pain and suffering, humiliation, mental anguish, and other

intangible injuries so that we can make plaintiffs whole. What we do not

do, again for reasons grounded in humanity, is force a defendant to

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 district

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 jury

returned verdicts in favor of the Wright family. The defendants then moved

the district court for judgment notwithstanding the jury verdict for

substantially the same reasons that are raised on this appeal. The

district court judge, who had presided over the entire trial, denied the

defendant's motion. I believe the jury's and the judge's first-hand

impression of the evidence should be sustained in this case. Therefore, I

respectfully dissent.

It is undisputed that the Willamette plant emits minute wood fibers

laced with formaldehyde. It is also undisputed that because Willamette

failed to install equipment that would have significantly lowered the

emissions, the levels of formaldehyde emitted from the plant exceeded

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 emissions

could be seen on cars. Fibers from the plant
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were also found in the Wrights' air conditioner. The Wright family was

examined by physicians and significant levels of toxic emissions from the

plant were found in their sputum and urine. The Wright family suffered

from headaches, sore throats, watery eyes, runny noses, dizziness, and

shortness of breath, which the treating physician testified were more

probably than not related to their exposure to the plant emissions. This

testimony was properly received.

Having heard all of the above evidence, the jury determined that the

Wright family's disabilities were a direct result of the constant exposure

to the formaldehyde that 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 majority 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 breathe

them. There are at least two answers to this argument. First, there was

abundant testimony that distinguished the effects on human health of dust

and other nontoxic air pollutants from formaldehyde. The former being

largely benign and the latter being harmful. Second, the State of Arkansas

has made a determination that it is harmful to health to discharge

formaldehyde minute particles and gases into the atmosphere. Of course,

there must be testimony that the toxins found their way into the bodies of

the humans, but there was more than sufficient evidence on this score.

I do not disagree with the majority's statement that there must be

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 Wright

family suffered. 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 are

dangerous to the health 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 emissions

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 more

probable than not that their illness was caused by the formaldehyde. Thus,

the circle was complete and proximate cause established. Dr. Peretti may

or may not have been prodded to relate the Wrights' illnesses to

formaldehyde, but he did; and the jury could have rejected his testimony

if it did not believe him.

Finally, the majority dehumanizes the 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 issue and the responsibility of Willamette to comply with properly

established health and safety standards that can be met by installing state

of the art equipment.

For all of the reasons stated above, I would affirm the district

court and permit the jury verdict to stand.

A true copy.

Attest:

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