Sterling v. Velsicol Chemical Corp.

OPINION AND ORDER GRANTING JUDGMENT TO PLAINTIFFS

HORTON, District Judge.

This class action lawsuit was originally filed by plaintiffs against Velsicol Chemical Corporation in the Circuit Court of Hardeman County, Tennessee, on December 4, 1978.

Plaintiffs are a class of persons who owned property or lived within a three mile radius of the northern most boundary line of a 242 acre chemical waste burial site in Hardeman County, Tennessee, owned and operated by Velsicol from late 1964 until it was closed as hazardous in 1973 by order of the State of Tennessee. Plaintiffs in this class action seek damages for personal injury and damages to their property allegedly suffered when water in their home wells became contaminated by hazardous chemicals which escaped from Velsicol’s burial site. Chemical waste from Velsieol’s Memphis manufacturing plant was placed in fifty-five gallon metal drums, (some dry waste was placed in boxes or other containers), loaded on trucks and hauled from Velsicol’s Memphis plant to Velsicol’s chemical waste burial site in Hardeman County, near Toone, Tennessee.

The lawsuit was removed from the Circuit Court of Hardeman County, Tennessee, to this Court by Velsicol on allegations of diversity of citizenship and requisite amount in controversy. The Court finds it has jurisdiction over the lawsuit and the parties to this properly certified class action.

The claims of the five plaintiffs against Velsicol have been fully presented to the Court over a period of sixty-five trial days and are representative of all of the claims of the party plaintiffs to this class action.

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While Veliscol claims the jurisdictional amount requirement of

Zahn v. International Paper Co.,

414 U.S. 291 , 94 S.Ct. 505 , 38 L.Ed.2d 511 (1973),

[see also Zahn v. International Paper Co.,

469 F.2d 1033 (2nd Cir., 1972), and

Zahn v. International Paper Co.,

53 F.R.D. 430 (D.Vermont 1971)], has not been met, the Court finds the pleadings are proper in this class action, the jurisdictional amount requirement has been met as to these plaintiffs, and the notice requirements of

Eisen v. Carlisle & Jacquelin,

417 U.S. 156 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974), have been complied with in all respects.

This class action proceeded to trial with five representative plaintiffs selected because their claims are generally representative of the claims of all class members. The five representative plaintiffs are:

1) Steve Sterling

2) James E. Wilbanks

3) Curry A. Ivy

4) Daniel R. Johnson

5) James O. Maness, Jr.

Based upon the Court’s consideration of all of the material evidence presented in this case during the sixty-five day trial, the findings of fact and conclusions of law submitted by the parties, upon consideration of the applicable law, and upon the entire record, the Court finds Velsicol is liable to plaintiffs upon the legal theories of strict liability, common law negligence, trespass and nuisance.

In an effort to fairly compensate each of the five plaintiffs for the injuries suffered as a result of ingesting, inhaling, using and being otherwise injured by water contaminated by hazardous chemicals which escaped from Velsicol’s burial site, the Court awards the following damages to each plaintiff:

1) Steve Sterling $ 673,492.50

2) James E. Wilbanks 675.000. 00

3) Curry A. Ivy 350.000. 00

4) Daniel R. Johnson 1.275.000. 00

5) James O. Maness, Jr. 2.300.000. 00

The Court has concluded that a single award of punitive damages is appropriate and should be awarded in this case. The Court finds this decision appropriate, because it has heard all of the evidence on all of the significant issues that can be presented for decision in this class action. The Court finds Velsicol’s actions in locating, creating, maintaining and operating its chemical waste burial site constituted gross negligence and a wilful and wanton disregard for the health and well being of plaintiffs and the adjacent environment. This is particularly true when the Court considers Velsicol’s superior knowledge about chemicals used in its manufacturing process. The Court agrees with Mr. William Howard Bealsey, III, Vice Chairman of the Board, Velsicol Chemical Corporation, who, in a letter dated April 23, 1979, (Ex. 176), addressed to “Dear Senators” stated:

On the other hand, the social costs imposed by improperly disposed of chemicals are high even though they are difficult to quantify. Additionally, the economic consequences for existing, financially responsible firms for previously improperly disposed of chemicals can be severe. Because of these consequences, it is difficult for me to imagine a responsible company knowingly disposing of chemicals in an improper way. For all of these many reasons, social as well as economic, there can be no substitute for the proper manufacture and disposal of chemicals.

While the Velsicol chemical site in Hardeman County has been called a landfill by Velsicol, a burial site by the Court and a dump by plaintiffs, the Court concludes the substantial evidence in this record shows plaintiffs are correct. The site is in fact nothing more than a chemical waste dump. The amount of punitive damages which all plaintiffs in the class are entitled to receive is

$7,500,000.00

The Court has also determined that in the exercise of its informed discretion, plaintiffs are entitled to recover pre-judg

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ment interest at the rate of eight (8)% per annum on all compensatory damages awarded to each plaintiff in this lawsuit from July, 1965.

The Court will further explain the award of compensatory damages in a later part of the opinion.

Plaintiffs Contentions

The substance of plaintiffs’ claims is that they have suffered physical injury, bodily harm, mental and emotional anguish, property damage, and loss and destruction of an entire community and a way of life, all proximately resulting from Velsicol’s grossly negligent selection, implementation, operation and burial of more than 300,000 fifty-five gallon drums filled with ultrahazardous chemical waste, and hundreds of boxes of ultrahazardous dry chemical waste on its burial site which adjoined plaintiffs’ homes and property. Plaintiffs contend Velsicol was grossly negligent in the selection and implementation of its chemical waste burial site, in the manner in which it containerized chemical waste, in its burial operations, and in allowing ultra hazardous and highly toxic chemical waste to escape from the burial site, infiltrate into and contaminate their underground well water.

Plaintiffs contend that as a result of their drinking, bathing, cooking, canning, cleaning, breathing steam from hot water, and otherwise using their home wellwater contaminated by hazardous chemicals from Velsicol’s burial site, over a period of years — from on or about August 24, 1964 . until June 1, 1973 — they have suffered severe and permanent physical injuries, mental and emotional anguish, and damage to and loss of their property. Plaintiffs contend these injuries are permanent and they are left with an enhanced risk of future disease and cancer and remain frightened as to what the future holds for their lives. It is plaintiffs’ contention that Velsicol’s negligence and gross negligence, emanating from the totality of the circumstances surrounding Velsicol’s site selection, its creation and operation of the chemical waste burial site and the escape and infiltration of hazardous and highly toxic chemicals from the site into their underground wellwater injured them, disrupted their lives and completely destroyed, not only their peaceful rural home community, but a way of life.

Plaintiffs contend that among the hazardous and highly toxic chemicals buried in the burial site are:

1) carbon tetrachloride

2) chloroform

3) chlorobenzene

4) hexachlorobutadiene

5) hexachloroethane

6) hexachloronorobornadiene

7) napthalene

8) tetrachloroethylene

9) toluene

10) endrin

11) heptachlor

Plaintiffs predicate this lawsuit and their right to recover damages from Velsicol upon the following legal theories:

1) strict liability

2) common law negligence

3) trespass

4) nuisance

Plaintiffs claim they are entitled to both compensatory and punitive damages from Velsicol. Generally, plaintiffs claim Velsicol was grossly negligent in the way it selected the site for its chemical waste burial. Plaintiffs contend there was no site selection study before Velsicol acquired its site in rural Hardeman County and commenced its chemical waste burial operations. There was no hydrogeologic study to determine if the chemical waste site was being located on top of a water aquifer. Plaintiffs claim Velsicol was grossly negligent in not putting chemical waste in drums that would contain the chemicals and that drums selected and used were inadequate and not corrosion resistant. Plaintiffs claim the drums were often leaking chemical contaminants when they were hauled from Velsicol’s Memphis Plant to the burial site and, that drums and boxes of waste were recklessly dumped into

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trenches and were often battered and ripped open while being buried and covered with dirt by a bulldozer. Finally, plaintiffs contend Velsicol was grossly negligent in its failure to monitor the chemical waste burial site for a long time after the burial site was in operation.

Plaintiffs assert claims of trespass, nuisance, common law negligence and strict liability. Plaintiffs contend that Velsicol is strictly liable because its burial site for chemical waste was a non-natural use of the land, a nuisance and an abnormally dangerous activity and Velsicol allowed dangerous, ultra hazardous and highly toxic chemical waste to escape from its burial site and cause actual harm, personal injury and property loss to plaintiffs and the class of persons they represent.

In addition to compensatory damages, plaintiffs contend they are entitled to, and Velsicol is liable to them for punitive damages. Plaintiffs base their claim for punitive damages upon their allegations, among others, that Velsicol knew and had every reason to know it was operating a dangerous and ultra hazardous activity on the chemical waste burial site and, even when faced with knowledge of that fact, blatantly continued burial dumping operations. Plaintiffs contend Velsicol, in selecting and operating its chemical waste disposal site, wilfully failed to comply with the known state of the art existing at the time.

Plaintiffs charge Velsicol supplied the State of Tennessee with false information about its chemical waste dumping activities. Plaintiffs contend Velsicol informed officials of the State of Tennessee that it was dumping solid and semi-solid waste when, in fact, it was dumping liquid waste as well. Plaintiffs contend Velsicol informed the state it was using corrosion resistent containers when, in fact, it was not. Plaintiffs contend Velsicol did not inform the State of Tennessee what chemicals were being dumped into the site.

Plaintiffs claim Velsicol did not provide the Environmental Protection Agency (EPA) with a true and exact listing of chemicals buried on the site. Plaintiffs contend that when Velsicol actually knew or should have known that chemical waste was leaking and/or leaching from the site, Velsicol continued expanding its burial operations on the site. Plaintiffs contend Velsicol never advised people living in the area of the burial site of its dangerous and hazardous potential. In fact, plaintiffs contend Velsicol maintained there was never any hazard. Plaintiffs contend that when the State of Tennessee issued an order, pursuant to Tennessee law, directing Velsicol to stop its burial operations, Velsicol continued its chemical waste burial operations for months in defiance of the order. Plaintiffs claim Velsicol’s conduct was wilful, wanton, oppressive and so reckless as to evidence a conscious indifference to the consequences of its actions on the burial site.

Velsicol’s Contentions

Velsicol has admitted, almost from the beginning of this lawsuit, that some of the wells along the Toone-Teague Road, used by families as a source of home water supply, were and are contaminated with chemicals from its waste burial site. On September 11, 1981, during a hearing before Chief Judge Robert M. McRae, Jr., Mr. James W. Gentry, Jr., chief trial counsel for Velsicol, stated:

And it is obvious to the Court, and Velsicol is prepared to admit, that some of those wells along Toone-Teague Road were indeed, adulterated. And we are prepared to argue that there has been a nuisance visited upon a number who are in the local aquifer.

Again, during that hearing, Mr. Gentry stated:

But there are, indeed, people along the Toone-Teague Road who were affected by the existence of the Velsicol landfill, and they were damaged by invasion of their property, i.e., their water table. And within that particular aquifer, I must be very careful, because I have my general counsel here, but I believe within that particular aquifer, we may be prepared to admit our chemicals could be expected to be found there.

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Hearing on Area of Notice, September 11, 1981, (Tr. pp. 53, 56-57).

During the making of Velsicol’s opening statement at the beginning of this trial on June 21, 1982, at Jackson, Tennessee, Mr. Gentry referred to the fact that the State of Tennessee had declared the operation of Velsicol’s waste burial site to be a public nuisance. (Tr. 75). He then went on to say: “We would respectfully suggest to the Court, that on the basis of that factual circumstance the Court will find and should find that it’s a permanent nuisance.” (Tr. 77).

In Velsicol’s proposed Findings of Fact and Conclusions of Law, Part II, Footnotes, p. 3, Velsicol states in part: “It has admitted its liability to some members of the class under the theories of nuisance and trespass.” Also, on page 102 of that document, Velsicol admits liability to two of the five representative plaintiffs, Daniel R. Johnson and Steve Sterling. Velsicol proposed to the Court:

That Daniel R. Johnson is entitled to an award of_due to the anxiety and concern that he suffered as a result of defendant’s trespass.

That Steve Sterling is entitled to an award of_due to the anxiety and concern that he suffered as a result of the defendant’s trespass and further due to the inconvenience he experienced and the diminution of the value of his property which occurred because of the defendant’s trespass.

The consequence of these admissions, which was a Velsicol theme throughout the trial, is that Velsicol admits liability to some of the members of the class of this lawsuit. Velsicol also admits liability to two of the five representative plaintiffs of the class. This apparent admission of liability is limited and is predicated upon its admission to trespassing upon plaintiffs’ property and creating a nuisance.

With these asserted admissions forming a framework of reference, the Court turns to Velsicol’s contentions. First, Velsicol asserts a state of the art defense. Velsicol contends it exceeded the then known state of the art in its selection, implementation and operation of its chemical waste burial site in Hardeman County, Tennessee. Specifically, Velsicol contends expert testimony in the case demonstrated that its site selection, the manner of its disposal of chemical waste and the existence of a monitoring well exceeded what was at that time, the state of the art in the disposal of chemical waste. Further, Velsicol contends its acquisition, implementation and burial operations from 1964 until June of 1973 were not considered inherently or abnormally dangerous. Velsicol contends the Court must view this particular activity as it was looked upon from 1964 until 1973 and not as it might appear to the Court at the time of the trial of the lawsuit.

Second, during the relevant times, Velsicol contends there is only one inherently dangerous activity defined in Tennessee law — and that is blasting. Velsicol contends it had a legal right to do what it did on its Hardeman County property so long as it did not create a public nuisance.

Third, Velsicol contends it had a legal right to use its property as it did during the years 1964-1973. Velsicol contends it had a legal right to rely upon Tennessee’s Solid Waste Disposal Act (T.C.A. § 68-31-101, et seq.) and the Water Quality Control Act (T.C.A. § 69-3-101, et seq.) both enacted during the time Velsicol operated its chemical waste burial site.

Fourth, while Velsicol admits that among the various chemicals buried on its site are carbon tetracholoride and choloroform, Velsicol questions whether these chemicals are health hazards and whether they had any adverse impact upon the health of plaintiffs, considering the dosages they suffered. Velsicol contends carbon tetracholoride was used for years and years for dry cleaning. Velsicol contends choloroform was used in toothpaste and that the New Orleans, Louisiana, water supply has a substantial amount of choloroform in it.

Conclusions of Law

The Court heard all of the evidence presented during the course of the sixty-

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five days trial of this case. The Court has spent many hours and days reviewing the record in this case, including the proposed findings of fact and conclusions of law submitted by the parties. Based upon its extensive participation in this lawsuit, its knowledge of the case, its numerous conferences with all of the attorneys for the parties, and upon the entire record, the Court makes the following conclusions of law:

1. Velsicol is guilty of common law negligence in the creation, implementation, operation and closure of its chemical waste burial site in Hardeman County, Tennessee.

2. Velsicol’s acts of common law negligence were the proximate cause of the injuries inflicted upon Steve Sterling, James E. Wilbanks, Curry A. Ivy, Daniel R. Johnson and James 0. Maness, Jr.

3. Velsicol was carrying on an abnormally dangerous activity when it created, implemented, operated and closed its chemical waste burial site in Hardeman County, Tennessee.

4. The operation of such an abnormally dangerous activity by Velsicol makes Velsicol strictly liable to the plaintiffs for all injuries caused thereby.

5. Velsicol’s acts in operating such an abnormally dangerous activity were the proximate cause of each of plaintiffs’ injuries.

6. The creation, location, operation and closure of Veliscol’s chemical waste burial site containing highly toxic and ultrahazardous chemicals, immediately adjacent to the plaintiffs’ properties, is an interference with the right of plaintiffs for the enjoyment of their lives and property, therefore, a nuisance.

7. Velsicol is guilty of trespassing upon the property of plaintiffs by the allowance of the escape of their toxic and hazardous chemicals from their waste burial site in Hardeman County, Tennessee, to the property of the plaintiffs.

8. Velsicol’s acts in so trespassing upon the properties of the plaintiffs is a proximate cause of each plaintiff’s injuries.

9. The location, creation, operation, closure and maintenance, of Velsicol’s chemical waste burial site containing highly toxic and ultrahazardous chemicals immediately adjacent to plaintiffs’ properties created a common law private nuisance.

10. Velsicol’s acts in creating such a private nuisance were a proximate cause of plaintiffs’ injuries which included the interference with plaintiffs’ right to the uninterrupted enjoyment of their lives and property.

11. The acts of Velsicol in creating, implementing, operating and closing its chemical waste burial site in Hardeman County, Tennessee, constituted gross, wilful, oppressive and wanton misconduct and entitle plaintiffs to recover punitive or exemplary damages.

Discussion of Legal Theories

The Court concludes Velsicol is liable to plaintiffs and the class of persons they represent upon the legal theories of strict liability, common law negligence, trespass and nuisance. The Court will discuss those theories in this part of this opinion.

Strict Liability Theories

Plaintiffs in this action argue Velsicol should be held responsible for damages, without regard to fault, on the theory of strict liability. The genesis of that theory stems from the “non-natural uses of lands” principle set forth in the landmark English case,

Rylands v. Fletcher,

L.R. 3 H.L. 330 (1868). Lord Blackburn authored the opinion for the Exchequer Chamber and an abridged version is contained in

W. Prosser, J. Wade & V. Schwartz, Cases and Materials on Torts,

Ch. 14, at 712-13 (7th Ed.1982).

BLACKBURN, J. * * * It appears from the statement in the case, that the

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plaintiff was damaged by his property being flooded by water which, without any fault on his part, broke out of a reservoir constructed on the defendants’ land by the defendants’ orders, and maintained by the defendants. * * *

The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. * * *

We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn'is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his neighbor’s privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor’s, should be obliged

Prosser’s text also contains an abridged version of Lord Chancellor Cairns’ opinion affirming the judgment of the Court of Exchequer Chamber. Lord Cairns stated:

[I]f the defendants, not stopping at the

natural use

of their [land] had desired to use it for any purpose which I may term a non-natural use ... and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the [land] of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril; and, if in the course of their doing it the evil arose ... then for the consequence of that, in my opinion, the defendants would be liable.

W. Prosser, supra,

at 715 (emphasis added). In summary, the rule of law from

Rylands v. Fletcher

allows for the imposition of liability for damages proximately caused by the defendant’s dangerous, non-natural use of land regardless of the standard of care defendant utilized in conducting that activity. Generally, modern courts have applied this strict or absolute liability to activities “variously characterized as

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‘perilous,’ ‘ultra or extra-hazardous,’ or ‘abnormally dangerous.’ ”

C. Morris & C.R. Morris, Morris on Torts,

Ch. IX, at 231 (2d ed. 1980). “The judicial rationalization seems to be that one who conducts a highly dangerous activity should prepare in advance to bear the financial burden of harm proximately caused to others by such an activity.”

Id.

The Restatement (Second) of Torts also adopts a rule of strict liability for damages resulting from certain activities. Section 519 states:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(b) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Section 520 lists the factors to be considered in determining what constitutes an abnormally dangerous activity:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) the extent to which its value to the community is outweighed by its dangerous attributes.

Comment (f) to § 520 provides guidances in the application of these factors:

In determining whether the danger is abnormal, the factors listed in clauses (a) and (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any exact definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for harm which results from it, even though it is carried on with all reasonable care.

The rationale for imposing strict liability under the Restatement is similar to that under

Rylands v. Fletcher.

It is “founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant’s enterprise, in other words, is required to pay its way by compensating for the harm it causes because of its special, abnormal and dangerous character.” Restatement (Second) of Torts § 519, Comment (d) (1977).

Tennessee Law

While research revealed no Tennessee cases that expressly adopts

Rylands v. Fletcher

or Restatement (Second) of Torts § 519, several cases indicate strict or absolute liability is an accepted theory of recovery under Tennessee law. Initially, it should be noted Tennessee has adopted the Restatement (Second) of Torts § 402A, the strict products liability section.

See Ellithorpe v. Ford Motor Company,

503 S.W.2d 516, 519 (Tenn.1973). In

Ellitkorpe

the court was faced with the issue of what defenses were available to strict products liability claims and in discussing § 402A, noted:

the Restatement, at comment m to Sec. 402A, states that strict products liability is “similar in nature” to the absolute liability imposed upon defendants who conduct ultrahazardous or abnormally dangerous activities ... Such activities are generally not excusable on the basis of a plaintiff’s ordinary contributory neg

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ligence. 3 Restatement (First) of Torts, Sections 515 and 524 (1938). Contributory negligence is not available as a defense to those types of conduct which are not based on negligence; for the same reasons, we think it should not be available to defendants in cases where strict products liability is imposed.

503 S.W.2d 522 (citations omitted)

In

Thomason v. Wayne County,

611 S.W.2d 585 (Tenn.Ct.App.1980),

cert. denied,

(1981), the plaintiff sought recovery under negligence, nuisance and strict liability for injuries received when decedent plaintiffs car collided with a temporary highway guardrail. In addressing plaintiffs strict liability claim, the court stated:

By strict liability the appellant refers to cases where the defendant was engaged in certain ultrahazardous activities such as storing explosives, blasting, or impounding water on land where it creates a highly dangerous situation.

Rylands v. Fletcher,

3 Hurl. 4 C 774 (1865); L.R. 1 Ex. 265 (1866); L.R. 3 H.L. 330 (1868).

We are of the opinion that this is not such a case. Here the defendants were not storing substances or carrying on activities that are inherently dangerous. This case is one of negligence and does not fall within that class of cases.

611 S.W.2d at 587 .

In another products liability case,

Caldwell v. Ford Motor Company,

619 S.W.2d 534 (Tenn.Ct.App.),

cert. denied,

(1981), the Court had occasion to discuss the rationale underlying strict liability. Citing

Ellithorpe ,

the Court noted the similarity between strict products liability and absolute liability associated with ultrahazardous or abnormally dangerous activities and then stated:

Professors Noel and Phillips in their textbook

Products Liability

— Cases

and Materials

(West Publishing Co., 1976), agree with Ellithorpe’s equation of causation in the products liability context with the risk of loss associated with the maintenance of an inherently dangerous condition. Their explanation of the theory is as follows:

Another reason for application of the foreseeability rule ... is that given by Harper and James in a similar context — that of the vicarious liability of the employer for the acts of the employee. They write: “We are not here looking for the master’s fault but rather for risks that may be fairly regarded as typical of or broadly incidental to the enterprise he has undertaken. Now one of the purposes for such a quest is to mark out in a broad way the extent of tort liability (as a cost item) that it is fair and expedient to require people to expect when they engage in such an enterprise, so there can be a reasonable basis for calculating this cost. And while many things may enter into the matters of fairness and expediency besides what men at any point may reasonably expect, ... yet fairness probably cannot be altogether divorced from some kind of foreseeability. What is reasonably foreseeable in this context, however, is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence. In the first place, we are no longer dealing with specific conduct but with the broad scope of a whole enterprise. Further, we are not looking for that which can and should reasonably be avoided, but with the more or less inevitable toll of a lawful enterprise. The foresight that should impel the prudent man to take precautions is not the same measure as that by which he should perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his part.

Ch. 8, p. 528.

Accord: Prosser, supra,

Strict Inability,

ch. 13, at 522.4 ”

619 S.W.2d at 541-42 . Footnote 4, citing Professor Prosser’s

Strict Liability

at page 522, is as follows:

The explanation must lie in part in the element of wilful creation of an unreasonable risk to others by abnormal conduct which is inherent in most of the

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strict liability cases; and in part in the policy which places the absolute responsibility for preventing the harm upon the defendant, whether his conduct is regarded as fundamentally anti-social, or he is considered merely to be in a better position to transfer the loss to the community. The statutory policy of workmen’s compensation acts, which places all risk upon the defendant, finds a parallel in strict liability at common law.

619 S.W.2d at 542 n. 4.

Finally, in the most recent Tennessee case found dealing with strict liability,

Summit Hill Association v. Knoxville Utility Board,

667 S.W.2d 91 (Tenn.Ct. App.1983),

cert. denied,

(1984), the Tennessee Court of Appeals reviewed the issue of whether the lower court should have applied the doctrine of strict liability. The court ultimately concluded strict liability was not applicable to suits for damages resulting from ruptured water lines. In reaching that conclusion the court discussed “the extent to which the American courts have applied the principles laid down in the English case of

Rylands v.

Fletcher” and quoted Dean Prosser as follows:

On the other hand, the conditions and activities to which the American courts have refused to apply

Rylands v. Fletcher,

whether they purport to accept or reject the case in principle, have been with few exceptions what the English courts would regard as “natural” use of land, and not within the rule at all. They include water in household pipes, the tank of a humidity system, or authorized utility mains ... The conclusion is, in short, that the American decisions, like the English ones, have applied the principle of

Rylands v. Fletcher

only to the thing out of place, the abnormally dangerous condition or activity which is not a “natural” one where it is.

667 S.W.2d at 94 -95 (quoting

W. Prosser, Law of Torts

510-12 (4th ed.1971)). From the court’s discussion and treatment of cases from other jurisdictions, it is clear the refusal to apply strict liability to a ruptured water line case was based on the conclusion such activity was not “non-natural,” “ultrahazardous,” or “abnormally dangerous.”

Conclusion

As noted earlier, no Tennessee cases were found expressly adopting

Rylands v. Fletcher

or the Restatement (Second) of Torts § 519. However, the cases discussed herein lead to the inescapable conclusion that under Tennessee law, Velsicol would be subject to strict or absolute liability for the non-natural, ultrahazardous and abnormally dangerous activities it conducted which gave rise to this action. The facts in the present case align squarely with both the application and the rationale underlying the rule of strict or absolute liability as that doctrine is viewed by Tennessee courts.

Dr. Clark testified, and the Court adopts as a finding that the disposal of hazardous liquid waste could be a dangerous activity

viz:

Yes, it could be, it could be dangerous all along the way from generation of the waste, transport of the waste, to the ultimate disposal or storage of the waste, whichever the process was designed to be. (Tr. 1055).

In fact, Mr. John M. Rademacher, Velsicol’s Vice President for Environmental Health and Regulatory Affairs agreed that the chemical waste dumped on the farm from 1964 through 1973 “would be characterized as hazardous waste.” (Tr. 4355). And Velsicol, in belatedly complying with Tennessee law in 1975, filed a statement on June 28, 1975 with the Hardeman County Registrar of Deeds entitled “Notice of a Former Landfill Site.” That notice stated,

inter alia:

“The materials deposited in and under the [farm dump] consisted of chemical process by-products which are hazardous.” (Ex. 171). The Court holds that the creation, location, operation and closure of the toxic chemical dump site by defendant was and is an inherently and abnormally dangerous activity.

Moreover, the Court concludes that Velsicol’s activity on the farm was not only

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ultrahazardous activity, but also abnormally dangerous activity and therefore the defendant is strictly liable for any damages that have occurred. This conclusion is made for

inter alia

the following reasons:

1. There was a high degree of risk of some harm to the person, land or chattels of others, particularly after the 1967 USGS report:

2. There was a likelihood that the harm that results would be great, such as the increased risk of many diseases including cancer, and the destruction of plaintiffs’ quality of life;

3. The inability to eliminate the risk by the exercise of reasonable care;

4. The extent to which the activity at the dump was not a matter of common usage and as a means of disposal and violated the state of the art;

5. The inappropriateness of the location of the dump where it was carried out; and

6. The extent to which its value to the community (none) was outweighed by its dangerous attributes (great).

Common Law Negligence

The Court concludes the doctrine of common law negligence applies to this case and Velsicol is clearly guilty of negligence in this case for the following reasons:

1. The Court concludes that there was a duty, a standard of conduct, imposed by law on Velsicol to protect others from unreasonable harm arising from the dumping of the chemicals on it’s farm; and

2. The Court further concludes that defendant breached that duty by it’s failure to do the following:

a. Defendant failed to investigate the geological makeup or strata under the dumpsite prior to its purchase or operation;

b. Defendant failed to investigate the hydrological, or water bearing zones under the dumpsite prior to its purchase or operation;

c. Defendant failed to hire knowledgeable persons to investigate the geological and hydrogeological area under the dumpsite prior to its purchase or operation;

d. Defendant failed to install proper monitoring procedures in and around the dumpsite prior to commencing dumping operations at the dumpsite;

e. Defendant failed to investigate the geological and hydrogeological situation at the dumpsite after being warned by the USGS in 1967 that their chemicals were escaping from their burial trenches and were in fact contaminating the local water table aquifer;

f. Defendant failed to hire professional geologists or hydrogeologists at the time the 1967 USGS was circulated to properly analyze the data generated therein as any reasonable person would do;

g. Defendant failed to heed the warning in said report by continuing to dump and even expanding the size of the dump;.

h. Defendant failed to heed the warning of the USGS and the State of Tennessee personnel about the expansion of the dumpsite to the south site, in March of 1971;

i. Defendant failed in the selection, location, operation and maintenance of the dumpsite under the prevailing state of the art for such operation during the entire length of time the dump-site was open from 1964 to 1973;

j. Defendant failed to obey the administrative order, which the defendant agreed to in May of 1972, by its continuing to dump in the southern site of the farm and its continuation to dump hazardous materials from August of 1972 until June 1, 1973. This activity was illegal and amounted to negligence

per se;

k. Defendant failed to take steps in 1967 to halt the leakage that was already occurring from the dumpsite;

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l. Defendant failed to properly monitor the dumpsite from its opening in October of 1964 to it’s closing in June of 1973;

m. Defendant failed to monitor the dumpsite at all from June of 1973 to the forced monitoring imposed on them by the State of Tennessee in 1980;

n. Defendant failed to operate said dumpsite according to the state of the art methods to protect the plaintiffs by their failure to cover their wastes daily thereby allowing an increase in the infiltration rate;

o. Defendant failed to properly close the dumpsite in 1973 pursuant to the state of the art;

p. Defendant failed to timely register the dumpsite as a hazardous waste disposal site as required by the State of Tennessee;

q. Defendant failed to timely, completely and correctly respond to the. requests of governmental agencies as to what was put into the dumpsite;

r. Defendant failed to warn plaintiffs that they should watch their water for the presence of any chemical odors or tastes as early as 1967;

s. Defendant failed to transport the chemicals from their plant site in Memphis, Tennessee to the dumpsite in Hardeman County, Tennessee in a safe and proper manner to insure the safety of plaintiffs and their property as the defendant allowed said chemicals to spill out of the trucks on to the roadway;

t. Defendant failed to contain their chemicals within the boundaries of their property in Hardeman County and did allow them to escape and pollute the drinkable ground water used by plaintiffs; and

u. Defendant failed to contain their chemicals within the boundaries of their property in Hardeman County and did allow the fumes from said chemicals to escape into the air which drifted onto the property and into the houses of the plaintiffs.

3. The Court further concludes that defendant’s breach of the above duties were in fact the proximate cause of plaintiffs’ injuries.

The Court concludes that the landmark case which sets the stage for recovery for exposure of persons to hazardous chemical substances is

Rylands v. Fletcher,

3 H. & C. 774, 159 Eng.Rep. 737 (1865), revised L.R. 1 Ex. 265 (1866), Aff’d. L.R. 3 H.L. 330 (1868). The English Court reasoned:

We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at its peril and if he does not do so its prima facie answerable for all the damage which is the natural consequence of its escape.

In

Bangor, an A.R. Company v. Ship Fernview,

455 F.Supp. 1043 (D.C.Md.1978), defendant chemical manufacturer was held to be causally negligent by producing chemical emissions from its plant which obstructed visibility at the area of the collision of a dry cargo vessel with a pier while the ship was attempting to dock.

Trespass

A number of the plaintiffs in this class action are attempting to hold Yelsicol liable for damages to their real property, chattel and person under various legal theories; one of those is trespass. Plaintiffs state “[t]he tort of trespass is defined as intentional invasion and interference with an individual’s exclusive right to possession of his property.” See Plaintiffs’ Findings of Fact and Conclusions of Law, at pg. 478. “Trespass is an intentional harm, and where there is no intentional act, in the sense of an act voluntarily done, there is no trespass.”

Kite v. Hamblen,

192 Tenn. 643 , 241 S.W.2d 601, 603 (1951). “Plaintiff need not show that the act was done out of malice or any wrongful intent. So far as the right to maintain trespass is concerned, it is sufficient if it were done without a lawful or justifiable cause, though it may have been done accidently or by mistake.” 24 TennJur.

Trespass

§ 3 (1985) (citing cases). “Every entry upon another’s soil

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without lawful authority is a trespass; and it matters not that there is no actual force, for the law in such cases implies force.”

Id.

“An action of trespass presumes a wrongdoer’s active agency in causing the injury complained of and doing of an act wantonly or in total disregard of others’ rights, while an action of trespass on the case assumes that the injury was the result of negligence or nonfeasance, not deliberate intent.”

Id.

at § 5 (citing

Sing v. Headrick,

34 Tenn.App. 187 , 236 S.W.2d 95 (1950)). In

Sing

the court noted the distinction between trespass and trespass on the case was abolished by statute: “All wrongs and injuries to the property and person, in which money only is demanded as damages, may be redressed by an action on the facts of the case.” 236 S.W.2d at 97 . The Court did, however, comment that the distinction must be recognized for the purposes of defenses asserted.

Id.

97-98. In

Kite v. Hamblen,

the court drew a distinction between trespass vi et armis (assault and battery) and trespass on the case, and noted, in the latter, remedy could be sought for consequential injuries resulting from negligence or nonfeasance. 241 S.W.2d at 603 .

While not expressly adopted by Tennessee courts, the Restatement (Second) of Torts § 165 (1965) appears consistent with Tennessee law applicable to the present case. Section 165, Liability for Intrusions Resulting From Reckless or Negligent Conduct and Abnormally Dangerous Activities, states:

One who recklessly or negligently, or as a result of an abnormally dangerous activity, enters land in the possession of another or causes a thing or a third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing or the third person upon the land causes harm to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest.

Comment c. to § 165 also states:

A trespass on land brought about under the circumstances stated in this Section subjects the actor to liability to the possessor of the land if, and only if, harm of the sort herein stated results. The harm may be an impairment of the physical condition of the land or an invasion occurring on the land of some other legally protected interest of the possessor, connected with his interest of exclusive possession. These interests include those in bodily security and freedom from confinement, and in the possession and physical condition of his chattels and the physical condition of members of his family and the servants belonging to his household. This enumeration is not intended to be exclusive. There may be other interests of the possessor which are also protected against invasion by means of an unintended intrusion on the land.

Actual trespass is not an issue in this case. Velsicol admits the movement of certain chemicals from its dump site through the local aquifer and “onto property owned by various plaintiffs and into the sphere of influence of various wells constitutes a trespass under Tennessee law.” See Defendant’s Proposed Findings of Fact and Conclusions of Law, pg. 88. Defendant also states: “Velsicol, in fact, has admitted that such an incursion has occurred with regard to a number of plaintiffs. It has further admitted that the incursion is a trespass to those persons and/or their property affected by this incursion.”

Id.

Velsicol further proposes:

The Court would observe that under Tennessee law, even an innocent and inadvertent trespass is compensable

(Inland Container Corp. v. March,

529 S.W.2d 43 (Tenn.1975)), and that if that trespass leads to a personal injury that naturally and necessarily follows from the trespass, then an action for trespass to the person will also lie. (Of course, if the trespass is a result of a negligent act on the part of the defendant, it would appear that the plaintiff would have a cause of action for either negligence or trespass.)

Defendant’s Proposed Findings, at pg. 88.

Velsicol admits liability in trespass to plaintiffs Sterling and Johnson but claims,

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for various other reasons, liability to others should be limited or found not to exist. However, Velsicol’s interpretation of the theory of trespass recovery under Tennessee law does not appear to be substantially different from that of the plaintiffs’.

In general, Tennessee trespass law as applied to the present case allows for the recovery of damages caused by admitted “incursion” of Velsicol’s chemical waste onto property owned by various plaintiffs within the designated area surrounding Velsicol’s Chemical waste burial site. Those damages may include consequential, special, and with proper showing, punitive damages.

Inland Container Corp. v. March,

529 S.W.2d 43 (Tenn.1975);

Franks v. Burks,

688 S.W.2d 435 (Tenn.Ct. App.1984),

cert. denied,

(1985);

Jones v. Morrison,

458 S.W.2d 434 (Tenn.Ct.App.),

cert. denied,

(1970). Actual damages would include those damages to real property, chattel and persons proximately caused by the trespass of Velsicol’s chemical waste through the water supply onto the plaintiffs’ property.

The doctrine of trespass is applicable to this case. The Court finds Velsicol, by its own admissions, has trespassed upon the property of plaintiffs.

Trespass is closely related to the law of nuisance, and the trespass remains actionable as long as it continues. Restatement of Torts Second, Section 158, comment (m). The Court holds that Velsicol’s interference and said cause of action continues today.

It was agreed at trial that the cause of action for trespass to property might deal only with Steve Sterling’s property in this phase of the trial. This is because the other four flagship plaintiffs had no real property within the impacted zone or had allegedly sold it to Velsicol by the time of trial.

However, the Court believes that certain common questions can and should be decided here:

a. On the basis of Exhibit 279, the Court concludes that the value of all property within the first contaminated zone is reduced to $275 per acre. The basis for this is the Court’s conclusion that with the exception of the value of timber the property has no value at least for the foreseeable future.

b. That the property within the second or intermediate zone is valued at $275 per acre for timber plus 50% for any improvements.

c. That all remaining property, not included in the zones above, but within a three-mile radius of the center point in the northern most line of the defendant’s farm is reduced in value by 10% of the value of the property above $275 per acre.

In addition to the traditional measure of damages for trespass, namely the diminution in value of plaintiffs’ properties, Courts have allowed evidence of emotional distress in environmental cases as proof of damages for trespass and this Court concludes that such damages are recoverable in this case. Also, the Court concludes that plaintiffs’ are allowed to recover for their concerns over diminished property values and their fear of potential health hazards

(Lunda v. Mathews,

46 Or.App. 701 , 613 P.2d 63 (1980) and

Edwards v. Talent Irrigation District,

280 Or. 307 , 570 P.2d 1169 (1977)). See also

Freeman v. Intalco Aluminum Corporation,

15 Wash.App. 677 , 552 P.2d 214 (1976).

This Court further concludes that Tennessee also recognizes the general rule of law that punitive damages are recoverable in actions based upon trespass and the plaintiffs are entitled to recover punitive damages in this case on this theory alone.

Whittington v. Grand Valley Lakes, Inc.,

547 S.W.2d 241 (Tenn.1977).

Nuisance

The doctrine of nuisance applies to this case. The Court finds Velsicol has interfered with plaintiffs’ right to the use and enjoyment of their property — whether owned or leased — by the creation of a nuisance. This fact of nuisance is admitted by Velsicol.

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Occasionally, a nuisance proceeds from a malicious deisre to do harm, but usually a nuisance is intentional in the sense that the defendant has created or continued the condition causing the nuisance with full knowledge that the harm to the plaintiffs’ interest is substantially bound to follow therefrom. A nuisance may also result from conduct which is merely negligence, to-wit: a failure to take precautions against a risk apparent to a reasonable man. Finally, a nuisance may occur when a defendant carries on in an inappropriate place an abnormally dangerous or hazardous activity. The Court finds that the Yelsicol chemical dump meets all of the above requirements which are basic Hornbook nuisance elements. See “Liability Under Federal Law For Hazardous Waste Injuries,” Harvard Environmental Law Review, Vol 6:1, page 4-6.

In

Reynolds Metals Company v. Martin,

337 F.2d 780 (1964), the court upheld the verdict and judgment of the lower court finding that the defendant’s manufacturing operation was responsible for the contamination of the plaintiff’s cattle ranch. Plaintiff contended that the emission of fluoride fumes and particulates from the defendant’s nearby plant caused his land and drinking water to become unfit for consumption by livestock. The judgment was based upon a theory of private nuisance.

The Courts of Tennessee have held that damages are recoverable in Tennessee for the maintenance of a nuisance and they have specifically held that such are recoverable where a defendant has polluted the water of another. See

William I. Love v. Nashville Agricultural Normal Institute et al,

146 Tenn. 550 , 243 S.W. 304 , 23 ALR 887 (1922). In this case the defendant contaminated the plaintiffs spring water with sewage.

The

Love

Case specifically states that:

“Whatever damages have resulted to the complainant have resulted from the maintenance of a nuisance. It is well settled law that if a person renders the water of another impure by filth, offal, or other substances, to his injury, he thereby creates a nuisance, under our statute as well as the common law, ...”

Compensatory Damages

Plaintiffs contend that as a result of the wrongful conduct of Velsicol, they suffered immense damage. The record is replete with evidence of such physical and mental damage. Moreover, the law recognizes that a plaintiff who is awarded a verdict is entitled to damages for the inconvenience and disruption of his or her life and normal activities as a result of the wrongful conduct of defendant.

The elements which are to be considered in determining damages are discussed in detail in the case of

Thompson v. National R.R. Passenger Corp.,

621 F.2d 814 (6th Cir.1980). They are:

(1) Extent of injury and disability and whether such is permanent.

(2) Pain and suffering, physical and emotional.

(3) Impairment of enjoyment of life.

(4) Impairment of earning capacity.

(5) Expenses.

(6) Punitive damages.

Velsicol’s conduct caused chemical contaminants to come in contact with or invade each particular plaintiff’s body, and impacted upon his or her body. Because those contaminants were of such a nature as to cause the reported symptoms and cellular damage, and adverse biological change, (however slight), the Court considers that this ingestion, inhalation or contact caused emotional distress in each plaintiff. See

Robert Laxton et ux, et al, v. Orkin Exterminating Company, Incorporated,

639 S.W.2d 431 (Tenn., 1982).

Moreover, plaintiffs are entitled to recover for fear, distress, or emotional injury because that fear or distress reasonably and naturally flowed or resulted from the disclosure of the nature and possible effects of those chemical contaminants. The Court has considered the nature, extent or duration of such fear of distress, since any award must compensate plaintiffs for any

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distress experienced since the disclosure of the contaminants in the water up to the present time, and even into the future, because the Court finds the medical and scientific evidence provided justifies the conclusion that such fear and apprehension has continued after disclosure and/or will continue into the future. The Court has considered each plaintiff’s age, his ability to perceive or understand the risk involved, as well as his or her family status and any medical history plaintiff may have which impacts upon the issue of emotional distress. The Court has also considered further the reasonableness of each plaintiff’s response to the disclosure of the contaminants in his water. See

Orkin, supra.

Of course, fear of developing a disease in the future, such as cancer, is an established item of damages not only in Tennessee but elsewhere.

Lorenc v. Chemirad Corp.,

37 N.J. 56 , 179 A.2d 401 (1962);

Ferrara v. Galluchio,

5 N.Y.2d 16 , 176 N.Y.S.2d 996 , 152 N.E.2d 249 (1958);

Dempsey v. Hartley,

94 F.Supp. 918 (E.D.Pa.1951);

Flood v. Smith,

126 Conn. 644 , 13 A.2d 677 (1940) (fear of paralysis);

Southern Kansas Railway Company of Texas v. McSwain,

55 Tex.Civ.App. 317 , 118 S.W. 874 (1909) (fear of blood poisoning occurring and proving fatal).

Separate and apart from the viability of the claims for mental and emotional distress

qua

personal injury claims, it is well settled and a traditional principle of law, that damages for anxiety, discomfort and other distress are recoverable in a nuisance action. In other words, such claims are an incidental element of damages to the property damages recoverable when a nuisance is created.

E.g., Dixon v. New York Trap Rock Corp.,

293 N.Y. 509 , 58 N.E.2d 517 (1944);

Alonso v. Hills,

95 Cal.App.2d 778 , 214 P.2d 50 (1950);

Nitram Chemicals Inc. v. Parker,

200 So.2d 220 (Fla.Ct.App.1967);

Riblet v. Spokane-Portland Cement Co.,

45 Wash.2d 346 , 274 P.2d 574 (1954);

Vestal v. Gulf Oil Corp.,

149 Tex. 487 , 235 S.W.2d 440 (1951).

A leading case is

Dixon v. New York Trap Rock Corp., supra.

There, plaintiff’s property was injured by a nuisance maintained by defendants. In addition to the property damage, one of the plaintiffs sought damages for a “neurotic condition known as an anxiety state” which resulted from the nuisance. 293 N.Y. 514 . The New York Court of Appeals stated the applicable principle: “discomfort and inconvenience caused by the disturbance of the property are valid grounds of recovery in an action for nuisance.”

One of the prime reasons a nuisance is actionable is that it adversely affects the occupants’ right to enjoy the property. In the case of a residence, the life of the occupants is disrupted. In a sense, then, although a nuisance is a property action, its gravamen is the disruption of the lives and well being of the residents. The residents may recover damages for the disruption in the quality of their lives caused by the wrongdoing of defendants. It is well-settled that disruption and inconvenience, in addition to the mental injury are compensible items in a nuisance action.

E.g., Dixon v. New York Trap Rock Corp., 293

N.Y. 509, 58 N.E.2d 517 (1944);

Kornoff v. Kingsburg Cotton Oil Co.,

45 Cal.2d 265 , 288 P.2d 507 (1955);

Nailor v. C.W. Blakeslee & Sons, Inc.,

117 Conn. 241 , 167 A. 548 (1933). Simply put, plaintiffs may testify to, and recover damages for, the disruption in their everyday lives and the inconvenience caused by their lack of a potable water supply.

It is imperative at the outset to set forth the exact nature of the item of damages commonly known as “increased susceptibility” or “increased risk.” For once it is understood what that item of damages consists of, it becomes clear those damages are recoverable under traditional principles of damage law. In other words, compensation for increased susceptibility to disease is not a new or novel concept.

To begin with, it must be emphasized that the increased susceptibility to kidney and liver disease and cancer is a presently existing condition in each plaintiff who suffered exposure to the various toxins. Plaintiffs produced scientific experts who

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testified, that, to a reasonable degree of scientific certainty, each plaintiff now has a presently existing condition known as “enhanced or increased susceptibility” to disease. Finally, they testified that the condition resulted from consuming the Velsicol chemicals in the water.

Recognizing that enhanced susceptibility is an existing condition, and not a speculative future injury, Courts have regularly upheld awards for such a claim. A case on this point is

Feist v. Sears Roebuck & Co.,

267 Or. 402 , 517 P.2d 675 (1973), where the Oregon Supreme Court upheld an instruction to the jury “that it could consider susceptibility to menningitis in its award of damages” to a young plaintiff. Id. Specifically, the trial judge charged the jury that:

you can’t compensate the plaintiff for probably having menningitis in this case, but you can compensate if you choose to, and if it’s been proven to you by the evidence that plaintiff has a susceptibility for such a future problem.

In affirming the award of damages, the Court rejected defendants’ argument that “the condition of being susceptible to a disease is not compensible as such, at least in the absence of any present harm caused by the possibility.”

Id.

517 P.2d at 679 . Instead, the Court concluded that once the condition was established to a reasonable probability by expert testimony, it was for the jury to determine whether to award damages.

That same conclusion was reached in Pennsylvania in

Schwegel v. Goldberg,

209 Pa.Super. 280 , 228 A.2d 405 (1967). In that case, compensation was awarded for an enhanced risk of epilepsy. The Court pointed out that, because the enhanced risk presently existed, there was no element of speculation in awarding damages for it: “Nor was the neurosurgeon speculating or guessing when, based on statistics in his field of expertise, he indicated the probabilities of this particular plaintiff suffering from epileptic seizures as a result of a condition caused by this accident.” 228 A.2d at 409 .

Numerous other Courts have routinely upheld compensation for enhanced susceptibility to injury. Indeed, an Illinois Appellate Court recently found it unnecessary to extensively analyze the issue, ruling matter-of-factly that “an increase in the risk of injury traceable to the conduct of a defendant is compensible ...”

Lindsay v. Appleby,

91 Ill.App.3d 705 , 414 N.E.2d 885, 891 (1980);

accord, e.g., Redmon v. Sooter,

1 Ill.App.3d 406 , 274 N.E.2d 200 (1971). And, as long ago as 1947, the Connecticut Supreme Court recognized that although compensation for future injury was not permissible unless development of the disease were probable, recovery for the present fact of enhanced risk was a proper element of damages.

Figlar v. Gordon,

133 Conn. 577 , 53 A.2d 645 (1947). More recently, a federal court in Pennsylvania sustained an award of damages for increased risk of arthritis, noting that the medical expert had testified that the plaintiff’s bone joint

“is

placed at an increased risk for the development of degenerative or wear and tear arthritis.”

Starlings v. Ski Roundtop Corp.,

493 F.Supp. 507, 510 (M.D.Penn. 1980). The Court recognized that this testimony satisfied the “reasonable probability” standard and that there was no impermissible speculation involved.

The enhanced risk of liver and kidney disease and cancer suffered by the five flagship plaintiffs fits squarely within the rule articulated in those decisions, and plaintiffs are entitled to be compensated for the condition.

In sum, it is generally recognized that a plaintiff is entitled to damages for an enhanced risk of injury occasioned by a defendant’s wrongdoing. There is simply no element of speculation in awarding those damages between the condition and defendant’s wrongdoing.

Punitive Damages

The actions and/or inactions of Velsicol amounted, not only to negligence, but also to gross, wilful and wanton negligence. As the evidence clearly showed, Velsicol’s actions between 1964 and the trial of this case were controlled by the defendant’s

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overriding concern for keeping its Memphis plant operating at the expense of human health and the environment. In this regard, the Court notes that in paragraph 7 of its Answer, Velsicol admitted that it gave “no consideration as to the contamination which it was creating until it finally ceased dumping in June of 1972 under a direct order from the Tennessee Department of Health.”

The general principles underlying the award of punitive damages in nuisance actions are found in 31 A.L.R.3d at page 1349. The principal requirements for the recovery of punitive damages are:

(1) Proof of an independent cause of action, since there is no cause of action for punitive damages only, 22 Am. Jur.2d Damages § 241.

(2) Proof of actual or compensatory damages, 22 Am.Jur.2d Damages § 241, 242.

(3) Evidence that the defendant’s wrongful act was characterized by either willfulness, wantonness, maliciousness, gross negligence or recklessness, oppression, outrageous conduct, insult, indignity, or fraud, 22 Am. Jur.2d Damages §§ 249, 250.

In Tennessee, punitive damages are awarded in cases involving fraud, gross negligence or oppression,

Knoxville Traction Co. v. Lane,

103 Tenn. 376 , 53 S.W. 557 (1899); or where a wrongful act is done with such bad motive or so recklessly as to imply a disregard of social obligations,

Stepp v. Black,

14 Tenn.App. 153 (1931); or where there is such wilful misconduct or entire want of care as to raise the presumption of conscious indifference to consequence.

Honaker v. Leonard,

325 F.Supp. 212 (E.D.Tenn.1971);

Inland Container v. March,

529 S.W.2d 43 (Tenn.1975).

In the State of Tennessee, punitive damages are not recoverable as a matter of right but rest within the sound discretion of the trier of fact. The theory of punitive damages is not to compensate an injured plaintiff for personal injury or property damages but to punish a defendant, to deter him from committing acts of a similar nature and to make a public example of him.

Huckeby v. Spangler,

563 S.W.2d 555 (Tenn.1978). Damages of this type are placed upon a defendant for his wrongful conduct and with a view to prevent similar wrongs in the future. They are not allowed as a matter of course, but only when there are some features of aggravation, e.g., the wrong is done wilfully and maliciously, under circumstances of rudeness or oppression, or in a manner which evinces a wanton and reckless disregard of the plaintiff’s rights.

Liberty Mutual Insurance Company v. Stevenson,

368 S.W.2d 760 (Tenn.1963). Factors informing the sound discretion of the Court are matters such as the nature of the case, the nature or character of the act, the malice or wantonness of the act, the motive for the act, the manner in which it was committed, the injury intended or likely to result from a disregard of duty, and the character and extent of the injury.

Booth v. Kirk,

53 Tenn.App. 139 , 381 S.W.2d 312 (1963).

The Court concludes that Velsicol’s actions in creating, maintaining and operating its chemical waste burial site, with superior knowledge of the highly toxic and harmful nature of the chemical contaminants it disposed of therein, and specifically its failure to immediately cease dumping said toxic chemicals after being warned by several state and federal agencies several years prior to the final cessation of such abnormally hazardous and harmful activity, constituted gross, wilful and wanton disregard for the health and well-being of the plaintiffs, and therefore is supportive of an award of punitive and exemplary damages.

The Court further concludes that Velsicol’s attempts to allege that the plaintiffs were guilty of assuming the risk, or were guilty of contributory negligence is without factual basis and so outrageous as to subject the defendant to punitive damages.

In addition the Court further finds that Velsicol has also attempted to shift the liability and causation for the psychological

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disorders suffered by the plaintiffs to the local, state and federal authorities, claiming that the defendant cooperated with them in their attempts to monitor the situation and persuade Velsicol to limit its activities. They contend that news coverage of this case specifically caused the post-traumatic stress disorders. The Court concludes that these attempts by Velsicol are also so outrageous that punitive damages should be imposed.

If there has ever been a civil action filed in this Court that justifies the levy of punitive damages, it is the case at bar. All of the elements necessary to an award of punitive damages are present in this lawsuit. In fact, failure to award punitive damages in this case would, in itself, be an act of injustice.

Moreover, the general rule followed by a majority of jurisdictions that have considered the issue is that evidence of a defendant’s wealth or financial state is admissible on the issue of punitive damages.

Odom v. Gray,

508 S.W.2d 526 (Tenn.1974).

Although the usual action in which punitive damages are levied is often predicated upon the general misconduct of a defendant, here an obvious measure of punitive damages was given by Velsicol itself. Throughout this case, Velsicol has taken the position that without the farm, the Memphis plant would close. Thus, the Court believes that it would be appropriate to deprive Velsicol of a reasonable part of the profit it made by improperly disposing of those chemical wastes to keep that plant open.

Mr. William Howard Bealsy, III, then Vice-Chairman of the Board of Velsicol, wrote a letter to the United States Committee on Environment and Public Works (Ex. 176). While the underlying data specifically referred to PCL waste, waste that Velsicol had admitted contained carbon tetrachloride and chloroform (Interrogatory Answer 2), the Court concludes that such cost estimates apply across the board today. Certainly, Mr. Beasley did not limit the comparisons to any specific chemical.

Mr. Bealsy was quite specific. He stated:

Attached is a current comparison between the disposal cost using a landfill and the disposal cost using incineration. This is an actual situation and represents what outside contractors are now charging. I feel that this is a relevant comparison, since these costs should represent full costs of disposal including operating costs, capital costs, and future maintenance of the site. This analysis shows that landfilling costs approximately $66 per barrel, while incineration costs $210, or over three times as much. If transportation costs are excluded, the costs are $46 versus $183, or four times as much. Due to the short supply of acceptable secure landfills, I would expect the landfill costs to escalate more rapidly in the future than the cost of incineration. However, this large gap is not likely to disappear in the foreseeable future. It should be noted that it takes 66 gallons of fuel oil to burn 50 gallons of residue and obviously the cost of fuel will increase substantially in the future.

Plaintiffs claim that because the testimony appears to imply that some heptachlor catalyst cannot be incinerated that the award for unjust profits falls between $23,-800,000 and $63,000,000. The median of those figures, according to plaintiffs, is $44,000,000. This is computed by 300,000 barrels times both $66 and the $210 figures. Thus, plaintiffs assert this figure should be $44,000,000 to $66,000,000. At no time did Velsicol present any testimony claiming such figures were inaccurate or not applicable. Indeed, Mr. Beasley reaffirmed them. These figures also do not take into account the interest which this money earned subsequent to use of the chemical waste burial site.

Pre-Judgment Interest

The Court concludes pre-judgment interest should be granted beginning in July, 1965. Pre-judgment interest is a proper element of damages under the statutory and common law of the State of Tennessee,

Tenn.Code Ann.

§ 47-14-123. That code

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section provides that pre-judgment interest, i.e., interest as an element of, or in the nature of, damages, as permitted by statutory and common laws of the State as of April 1,1979, may be awarded by courts or juries in accordance with the principles of equity at any rate not in excess of the maximum effective rate of ten percent (10%) per annum:

Pre-judgment interest, i.e., interest as an element of, or in the nature of, damages, as permitted by the statutory and common laws of the state as of April 1, 1979 may be awarded by courts or juries in accordance with the principles of equity at any rate not in excess of a maximum effective rate of ten percent (10%) per annum; provided, however, that with respect to contracts subject to § 47-14-103, the maximum effective rates of prejudgment interest so awarded shall be the same as set by that section for the particular category of transaction involved. In addition, contracts may expressly provide for the imposition of the same or a different rate of interest to be paid after breach or default within the limits set by § 47-14-103. [Acts 1979, ch. 203, § 22.]

The Court finds there are four starting points to determine when prejudgment interest should begin to run in this case:

(1) Interest should begin to run from the first wrongful act of Velsicol. As Mr. Jones of the Tennessee Department of Health testified:

“Q. But the actual pollution that you were concerned with, when ... was the starting point?”

“A. When the first barrel was dumped...”. (Tr. 1453).

Thus, prejudgment interest should commence running from October 24, 1964.

(2) The Federal Water Pollution Control Agency, as pointed out

supra,

in July 1965 found some chemicals dumped by Velsicol were already in Steve Sterling’s well including the pesticides Endrin and Dieldrin (Ex. 85). Prejudgment interest should at least begin to run at this point, if not before.

(3) Third, and in any event, prejudgment interest should begin to run on the date the chemicals were predicted to arrive at the wells by computer modeling. The date calculated by plaintiffs’ water model was 1969 (see Exs. 374 and 375) for at least the Sterling and Johnson wells.

(4) The fourth possibility is to start prejudgment interest running from 1974, the date that Velsicol’s own water model indicates that the chemicals arrived at the Sterling and Johnson wells.

The principles of equity, when applied to the facts in this case, dictate that prejudgement interest in this case should be awarded and should begin to run from July, 1965, when some Velsicol chemicals were found in Steve Sterling’s home well water.

Explanation of Compensatory Damages Awarded

Steve Sterling

Plaintiff Sterling was sixty years old at the time of trial. While he might not have been a highly educated man, he was a good family man and provider. He had seen fit to own enough real property so as to provide land and homes for his five children as they grew up, married and had families. These homes were together on the Toone-Teague Road and used a common well for water.

Mr. Sterling was born December 25th, 1922 at the place where he still lives, namely Hardeman County on the Toone-Teague Road. He has been a farmer and carpenter all of his life and has continued to live at the same location. Mr. Sterling was normal at birth and was a healthy child and physically active. After his formal schooling, he went to work farming with his father. This is still his present occupation, although his activities are now somewhat restricted.

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He drank from the Sterling Well (his own well), and he drank between ten to twelve glasses of water a day. He stated that he increased his fluid intake when he was working outside to over a gallon a day in 1975 to 1976. He stated that his “kidney’s hurt” and that he had to go to the hospital with a kidney infection. He testified that he noticed an oily substance on the water from the well in 1975 to 1976, and that he pulled the pump in early 1976 because of this but didn’t find anything wrong with the pump. Later that year he noticed there was odor to the water and that it had developed a bad taste. He has a bathtub, but does not have a shower.

Mr. Sterling stated that with the exposure to Velsieol’s chemicals he became very tired, very listless, with marked shortness of breath. These symptoms have become worse, and now he states that he is too weak to even go fishing. He also noticed headaches beginning in 1975 to 1976. These headaches were bilateral temporal in position. While these have improved over the past several years, he still has instances of severe headaches.

Mr. Sterling started wearing glasses in 1964, but noticed considerable decrease in his vision since 1977. He also had some ringing in his ears during 1976 to 1978, with a decrease in his hearing during that period of time as well as since then. The ringing, however, has disappeared. At the time of the exposure there was some soreness of his mouth, and he noticed a loss of taste.

He has had diffuse chest pain with severe cough over the past few years. This is a productive cough, with hemoptysis, or bleeding in his sputum, every few weeks. Marked shortness of breath is present with recurrent respiratory infection. This has been present since 1976, but he states that it has become worse in the last few years. The burning in his chest with a deep breath has cleared somewhat since he stopped using the water.

His appetite is poor and has been since the water was at its worst. He stated that he had some nausea and vomiting, which was most marked in 1977-78, but that has improved. These symptoms have caused a weight loss of approximately fifteen to twenty pounds, from which he stated he has not recovered.

He has some urinary frequency, with some urgency and burning on urination, and has noticed that he has to get up at night now some to void. He has noticed some tingling of his hands and feet since 1978, but no pain or discomfort in his legs with walking.

Mr. Sterling had an elevated BUN which is a rough measurement of kidney function. There are two areas of the kidney that form urine, and one of them is a filtering plant, which is the glomerulus, and the other are the tubules, and the BUN is a rough estimate of kidney function. It takes about three-fourths destruction of the kidney before the BUN becomes elevated, and with the elevation that Mr. Sterling has, Dr. Rhamy testified that Mr. Sterling has about only twenty percent of normal renal function still present. That loss of kidney function, according to Dr. Rhamy, was most probably due to the chemical exposure.

Defendant’s wilful and wanton poisoning of Steve Sterling has wrecked his health. He suffers constant reminders of poor health due to splitting headaches and shortness of breath. His immune surveillance system has been destroyed. He worries continually about his family, his children and grandchildren. He had a lifetime expectancy, without the effects of these chemicals, of 17.2 years at the time of trial. Moreover, the record is also replete with instances of inconveniences caused to Mr. Sterling by Velsicol’s actions. And, his property is worthless except for its timber value.

Steve Sterling testified Yelsicol opened the chemical dump site in the Toone-Teague Road area in the early part of 1960. (2045). He said he visited the dump site regularly because he had friends who worked on the site. He described the dumping operations as follows:

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Q. Did you know the people that were there that were employed by Velsicol?

A. The which now?

Q. The people that were employed at the dump that were employed by Velsicol, the managers?

A. I still didn’t understand.

Q. Did you know the people who worked at the dump that worked for Velsicol?

A. Yes, sir.

Q. Did anyone ever tell you that the chemicals were dangerous?

A. No.

Q. Did anyone tell you not to go down there — not to come down there and go on the dump?

A. No, sir.

Q. Were those people who worked for Velsicol down at the dump at the times that you would be down there?

A. Yes, sir.

Q. Would you tell the court what you recall about the drums that the chemicals were in?

A. Well, they were just steel drums, and they just hauled them in there and backed the truck up to the ditch and dumped them over in there, and my brother-in-law most of the time was running the dozer covering them up, and of course, they would cover the barrels up, and most of the time pretty close, you know, all of them, and most of the time just leave them laying out there, and the next time they went to dumping, they would just dump against that, you know, and cover it on up and down, just like that. You could see some of the barrels at all times.

Q. Did all of the barrels have tops on them?

A. No.

Q. Did you ever see any of the contents of the barrels on the ground?

A. Yes.

Mr. Sterling described his family’s various uses of water from the Woodrow Sterling well and the consequences of using that water: (2048-2053)

Q. Steve, will you tell the Court what all the things were that you used the well water for?

A. Well, we used it for everything at the house, cooking, taking baths, washing cars, cleaning carpets, floors, and washing the clothes, just everything you can think of that you would use water for in a household.

Q. During those years did you drink very much water?

A. Well, I did, on up to somewhere in this period of time about ’77, I couldn’t drink the water.

Q. How about iced tea, did you drink much iced tea?

A. Got to where you couldn’t drink that either; coffee and everything changes taste.

Q. When was the first time that you noticed something unusual about the water?

A. Well, I couldn’t recall just the time I noticed something unusual about it, but we kept trying to use it and use it, oh, up until around ’77 and I thought maybe it was the well, so we done everything we could to the well, redone it over, changed the motor and all in it, thought maybe it was leaking, you know, in it, but nothing we done helped it.

Q. Steve, would you explain for me and for the Court what it was that caused you to think there might be something wrong with the well or with your pump?

A. Well, everybody that come out there kept telling us that there’s nothing wrong with the water, you know, it’s all right, there’s nothing wrong with it. Nobody would drink none of it. We just, you know, had an idea that maybe you know, something was wrong with the well

Q. Tell the judge, if you would, what it smelled like.

A. Well, really, I don’t know, like cotton poison or some kind of chemical, you know, that you would kill bugs with, garden spray. It had all kinds of smells to it. You couldn’t really tell.

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Q. When you overhauled your well and pump did the smell change?

A. Couldn’t tell no difference either.

Q. Did it ever get better?

A. No, got worse.

Q. Was there ever any time that you had to drink more water than usual?

A. Yes, I took something wrong with my kidneys and I went to the doctor and he told me to drink all the water I could, try to drink a gallon a day.

Q. What doctor was that?

A. That was Barham in Bolivar.

Q. About what year and month, if you recall, was it that he had you drinking a gallon of water a day?

A. That was I think in '77 too.

Q. Steve, what type of — well, let me ask you this. About how many baths or showers would you take in a week’s time? How many times were you noticing the smell in the water?

A. Usually you take one nearly averaging, you know, once a day, sometimes you’d miss, not hardly ever, but it got along in ’77, why, I got to where I wouldn’t take a bath because I couldn’t stand the bathroom. I would open the door and I couldn’t stand it, it would just smother me to death.

Q. Tell the Court, if you would, please, what it was that was smothering you.

A. Well, when you run that warm water in the tub, really it wasn’t that hot, but I mean you get a little steam like, you know, it just smothered me and it would irritate me breathing in my throat, and of course after you took a bath, why, you would just be dry as a bone and that night you couldn’t sleep because you would itch all night long and scratch, and then the next morning you would be scaly, you noticed flaking like on your body, and—

Q. Had you ever had any problems with your skin like that before?

A. No.

Q. Did you put any lotion on it? What did you do for your skin problem?

A. Well, I rubbed alcohol on me and lotion and just everything that I could think of, but it didn’t seem to anything do it any good.

Q. Did any of it help?

A. I couldn’t tell you that it did.

Q. Steve, you said that your throat would be irritated. Would you explain what you mean by that?

A. Well, I would do a lot of coughing. I would get started to coughing and smothering and just, well, like you had had a real bad cold or something or other and, you know, just got raw down in your chest.

Q. Did taking a bath or shower cause you any problems with your eyes?

A. Yes, my eyes would burn when I was in trying to take a bath, especially — well, you could let that water run, in the kitchen or anything, washing your hands, and if it was real hot and you didn’t just really notice it, you know, and run too much hot water and it would come up and hit you in your eyes, it would burn your eyes.

Q. What are all the other uses around the house that you were putting water to at that time?

A. Well, we was putting it in the washing machine, dishwashers, well, in just really everything that you would use water in a house for, I mean we used it for everything.

Q. Did you wash your car?

A. Yes, washed my car in it. And when you would — if you was out in the yard and everything, you had been out all day and you would come in, like if there was a washing in the house, of course the clothes washer was setting just in the — well, it wasn’t in the kitchen, a little utility room made with the kitchen there, you couldn’t hardly stay in the house if you had been out all day and you just run in there and they had that washing machine odor or open that dishwasher, I knew I had to get out of there.

Q. You could tell when you opened the door that your wife had been washing that day?

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A. Yes.

Q. What did that smell like?

A. That same old smell, just some kind of chemicals, you know, spray or something or other.

Q. Did you and Nancy ever complain to anyone about the water?

A. Oh, we talked about it just every day. We argued about it and everything else because, you know, I couldn’t believe it was in there and she kept telling me it’s got to be on account of that dump, and I said, no, that’s too far, that can’t be getting in that water.

Q. When you had these discussions did you ever go and check anybody else’s water?

A. Yes, I went all over the country drinking water and all and nobody — all but any distance was all right as far as I could tell, but right there all of them, and finally got to where when I went up to J.D.’s from our’n, and up at the Johnson well, it was in the same shape.

Q. Do you know where Hut King lives?

A. Yes.

Q. Did you ever check his well?

A. Yes, checked his well. So a lot of friends around, I went and checked their wells. Then, of course, we went there and took baths, round about, went to Chickasaw, took baths up there. That was after we just plumb quit using it.

Q. Did it get so bad you couldn’t use it anymore?

A. Yes, it just got to where you could not use it.

He said they stopped using the water in 1977. (2055).

On November 2, 1978, the Regional Administrator, Environmental Protection Agency, (EPA), notified the Sterlings by letter not to use water from the Woodrow Sterling well. That letter reads:

“Dear Mr. Sterling: In August 1978 a water sample taken from the Woodrow Sterling well, which you use, was found to contain 4800 parts per billion (ppb) of carbon tetrachloride. It is the opinion of this Agency’s Regional Toxicologist that water containing this amount of carbon tetrachloride should

not

be used for any human contact. This includes bathing, washing dishes and clothes as well as food preparation and drinking. Also, the water should not be used by any animals, especially those used as a source of human food.

“I have directed that water samples be collected on Wednesday, November 1, 1978, from all the known drinking water supply wells in the vicinity of the Hardeman County landfill in order to determine the extent of chemical contamination and to confirm the high concentration of carbon tetrachloride found in your well water. The results of the analysis of these samples for organic chemicals will be provided to each of the well owners as soon as they become available. In addition, an advisory on further use of the water from each well will be provided based upon the analysis of the chemicals found.

“Also, this Agency is contacting the Department of Housing and Urban Development and the Farmers Home Administration in order to expedite the construction of the permanent water system extension to your property.

“I am enclosing a copy of a letter to Woodrow Sterling directing him not to use the water for any human contact.

“If you have any questions concerning this matter, please contact Ms. Kitty Taimi of my staff.

“Sincerely yours, John C. White.”

Carbon copy to Dr. Eugene Fowinkle, Tennessee Bureau of Environmental Health Services, Dr. Elmo Luma, Tennessee Department of Public Health, and Michael Cody, U.S. Attorney for the Western District of Tennessee.

The Regional Administrator mailed Steve Sterling a follow-up letter dated November 9, 1978, confirming the presence of the chemical Carbon Tetrachloride in the Woodrow Sterling well (2062-63).

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On November 5, 1978, the Tennessee Department of Public Health notified Mr. Sterling by letter that water in the Woodrow Sterling well should not be used (2064-65):

MR. GARRETY: It is a letter to Woodrow Sterling from the Department of Public Health, Environmental Health Services, 646 Old Hickory and U.S. 45 Bypass, Jackson, Tennessee.

It is dated October 5th, 1978.

(Reading) “The sample collected from your well on August 14, 1978, has been tested and found to contain the chemicals shown on the attached sheet. In comparing this data with that taken in April, some of the chemicals appear to have increased in concentration while others have decreased. At this time we can offer no explanation as to why some increased while others did not.

“It is still our position that the water from your well should not be used for consumption or food preparation. If you have any questions, please do not hesitate to contact me or Pat Patrick.

“Sincerely yours,

“Wayne Max

“Environmental Engineer

“Division of Water

Quality Control”

The inability to use water from the well caused the Sterling family severe inconvenience (2067):

Q. Did having to haul your water and having to go someplace else to take showers and take baths, did that have any effect on scheduling what you were going to do or your social activities at all?

A. Yes, it did. Well, sometimes it was just plumb, you know, difficult, because knowing you had something else that you needed to be doing, and you would have to go get water and have to drive to take a bath, and it was — well, it was just, you know, something that kept you uncertain what you was even going to get to do.

Mr. Sterling described his health as follows:

Q. Steve, would you tell the Judge what your health problems are today?

A. Well, really I have been sick ever since ’70 — well, some before that, but I got really sick in ’77, and I started going to doctors and they started giving me medicine and tell me to drink water, and the more water I drunk, the sicker I got. I am real nervous, and I have a hurting in my chest, and I stay sick a lot in the upper part of my stomach, and I have a headache, and have deadness in my arm and leg, and my nerves, I mean they are real bad.

Q. Would you describe your headaches, please?

A. Well, it hurts mostly in my temples here and around my eyes (indicating). Of course, it hurts some, you know, all over. But the worst place I have is right in my temples and seems like behind my eyes that I have a lot of headaches.

Q. How often do you have those, Steve?

A. I would say some every day, some days are worse than others.

Q. Did you have headaches before 1977?

A. I never did, as I know of. I didn’t have hardly any. You know, my head never did bother me.

Q. You mentioned problems with shortness of breath and your chest. Would you explain how that affected you?

A. Well, now, I just — I ain’t got not wind. I mean, I can’t hardly do anything. I just walk a little piece and I am out of wind, and if I am going upgrade, I can’t go nowhere. I just run slam out of wind, and when I breathe, it just seems like I am raw, you know. You get to hurting in here (indicating), or trying to hurt, and then I get started to coughing and just run plumb out of air.

Q. Has this running out of air had any effect on your ability to go hunting and fishing and those things that you talked about earlier?

A. Practically stopped it.

Q. Did you enjoy that?

A. Yes.

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He participated in a medical health study conducted by Dr. Scott Clark, a professor of the University of Cincinnati (2071).

On cross-examination, Sterling testified he has smoked cigarettes for years (2096-97). He has emphysema (2097) which was first diagnosed in 1976 (2098). He testified Velsicol replaced some plumbing and household applicances in their home in 1978 (2103), and purchased their canned and frozen foods (2105).

During the time Mr. Sterling’s well water was smelling and tasting bad, he pulled his water pump out of the ground. He described what he observed (2108-09).

Q. When the water was smelling bad and tasting bad and you thought it might be something with the well, did you pull that pump up?

A. Yes.

Q. Now, when you pulled it did you find anything unusual on it?

A. Yes, it had just a slum and all in the pipes, the whole pump. Well, it’s an inch pipe and the hole wasn’t through it, you couldn’t stick your little finger down in it, there was just an old slummy looking stuff all in the pipe.

Q. Did you clean it?

A. No, we run a wire through it and pulled a mop through it and mopped it out and cleaned it as we could.

Q. Did you put that same pump back?

A. No, not the same motor. We put the same pipes back in.

Nancy Sterling,

wife of Steve Sterling, testified she knew there was something wrong with their water. She said, (2114-15):

But the water, I could not hardly drink it, I knew down deep in my heart that there was something wrong with that water, I knew it had to be.

Q. Do you remember what year that was?

A. . That was in 1977.

Q. What did it taste like?

A. Cotton poison, oak spray, shoe polish, tractor fuel, I don’t know. It was just all combined. It’s hard to explain as to what it tasted like.

Q. Did it have an odor to it?

A. Yes, it did.

Q. Did the smell stay the same?

A. No, it gradually got worse.

Q. Was it any difference to you, Nancy, between the hot water and the cold water?

A. Yes, it was. The vapors from the hot water was just absolutely stifling. It hurt you so bad to breathe. Your eyes would burn so bad, and your nostrils would burn.

Q. Did you own a dishwasher?

A. Yes,. I did.

Q. When you opened the dishwasher, did you notice anything about the smell?

A. Yes. Also, there would be a substance on the dishes like a powder — maybe a face powder, a dust, a white dust.

Q. Had you ever had any of these problems with dishes before?

A. No.

Q. Had you changed your dishwashing powder?

A. No.

Q. You were using the same kind?

A. Right.

She described the water when it was used for bathing and for showers and how her hair started falling out (2116-17):

Q. Tell the court about the bath and shower water?

A. Now, that was really terrible. You would go in the bathroom, close the door, and run your bathwater, and when you would go in there, it would just — it would take your breath, almost. But you had to take a bath for sure, and it would also make you so weak you would just want to just get out and sit down and not get up. You didn’t have energy enough to get up. Your skin was so dry until it felt like it would break.

Q. How close in time did the problem with the skin develop in relation to when you first smelled the water?

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A. Very shortly. Por a long time you would take a bath, and you would say, what the heck, my hair is all falling out. Look, the brush is full. I am going bald. You look at your skin and you would say, what is happening to it. It’s breaking. Well, maybe it’s this and maybe it’s that, and pinpoint it all down. It’s water. You wash your hair, and you dry it, and the towel is full of hair. You brush it and your brush is full of hair.

Q. Now, on this problem of the hair, did that change when you got off the water from the house and had to go someplace else to take a bath or shower?

A. Yes, it did. It really did. It didn’t completely stop, but it really helped it.

Mrs. Sterling had problems with headaches and her personal energy level (2119): Q. When did you first notice these headaches that you were having?

A. My headaches started approximately 1974. I was working at Kilgore, and during that time, day by day by day, I hated to go to work, even worse every day, because I did not absolutely have energy to go all day, to do eight hours work there and to do the work I had to do at home.

Mrs. Sterling testified that Dr. Dan Marks, chemist at Velsicol, declined and refused to taste the water when he visited her home (2135-36):

Q. Nancy, when the water began to taste and smell enough that you thought it was the water, did you complain to any public officials?

A. Yes, we did.

Q. Who came out on behalf of the County or the State to look at your water?

A. Well, in November Steve carried some water to the Health Department at Bolivar. In December Mr. George Wallace and some guys from Nashville came out to our house and got some water. And I think in January 1978 Mr. Wallace came back, I was at Woodrow’s house, he and two other guys, one of them was Mr. Dan Marks that was on the witness stand here the other day, and got water and—

Q. Would any of those people drink the water?

A. No. Mr. Dan Marks, I asked him if he could smell the water. He said no, he couldn’t smell it because he worked for Velsicol in the chemicals and he got to where he couldn’t smell it.

I said, “Maybe you can taste it. Why don’t you have a drink?” He said, “No way. I probably wouldn’t live until I got back to Memphis.”

Mrs. Sterling described the changes and fears of her and her family as a result of this experience:

Q. Nancy, you have lived out there a long time and if you would, would you tell the Judge what changes have taken place out there on the road since Velsicol moved up there and what this has meant to you.

A. It has just about completely destroyed everything that my husband and I have worked for for the past forty years. It has about destroyed what my children worked for, the life in their lifetime since they have been there. We have worked hard, we all shared in the work to build what we have out there. We were happy. Overnight our water was contaminated, our lives were completely changed, and they will never be the same no matter what.

Q. Are you concerned about your grandchildren?

A. I’m concerned more about my grandchildren than I am myself. I’ve lived my life, just about. I’ve had a good life up until 1977.

My grandchildren haven’t lived their life; they are just beginning. My oldest one is seventeen years old. My youngest one’s five years old. What will it do to them?

The Court awards the following monies to Steve Sterling in an attempt to compensate him for his injuries:

1. Personal

a. Extent of injury and disability, including increased risk of disease and cancer in the sum of $150,000;

b. Impairment of Mr. Sterling’s immune system in the sum of $75,000;

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c. Psychiatric damage.

(1) Post traumatic stress disorder in the sum of $50,000;

(2) Fear of increased risk of disease and cancer in the sum of $75,000;

d. Physical pain and emotional suffering in the sum of $125,000;

e. Impairment of Mr. Sterling’s quality of life in the sum of $150,000.

2. Real Property in the sum of $48,-492.50.

James E. Wilbanks

Plaintiff Wilbanks and his family were the first to be stricken by Velsicol’s dumping, for the Velsicol chemicals didn’t have to go through the aquifer. Those chemicals were washed from the Velsicol well and from the road at the gate near the tavern well and somehow contaminated the tavern well. This alone necessitated the replacement of three hot water heaters at the tavern from 1969-1972.

Mr. Wilbanks was born in Walton, Mississippi, on July 15, 1931. In 1938 he moved to Selmer, Tennessee. In 1952 he moved to Henderson, Tennessee, and in 1968 he moved to a trailer behind the tavern across from the entrance to the Velsicol dumpsite.

He had a normal childhood without illness. He went to work on his father’s farm after completing the fourth grade of school. He went to work then in a sawmill in 1948 where he worked until 1968, when he went to work for Mr. Mills at the tavern. He worked there until 1977, when he moved and went to work at the Hardeman County Jail, where he still works.

His history of water intake was that he drank from the well located on the tavern property and used that water for his showers. He states that an odor was noticed by him and his wife as well as the customers as early as in 1969. Mr. Wilbanks stated that he stopped drinking the water in 1978 and remained in fairly good health with a minimum of visits to his doctor until January of 1981, when he noticed the appearance of blood in his urine. He immediately sought consultation and was seen by a neurologist in Jackson, Tennessee, who admitted him to the hospital and performed a urogram, which is a picture of the kidneys, and on January 23, 1981 an operation was performed removing one of his kidneys because of cancer. He had twenty-five cobalt treatments and other chemotherapy.

During the time of exposure he stated that he felt very weak, had dizzy spells and experienced severe headaches. In addition he had severe leg cramps. He just felt bad all the time, and was having considerable nervousness, which caused marital conflicts. This improved after stopping the water ingestion.

On symptom review, he had severe bilateral headaches daily, which caused him to become faint at times with dizziness noticed somewhere around 1973 to 1975. In 1974 he had one episode of passing out for a few minutes. He noticed some numbness of the right side of his face in 1981. He testified that his eyes were going bad and he couldn’t see to read. He has some ringing in his ears until after he stopped drinking the water. He had some burning of the nose with smelling hot water, particularly when he was in the shower, along with soreness of his throat as well as hoarseness.

He had soreness of the mouth with coating of his tongue, with difficulty in swallowing during the period of time of odor to the water. Like others, Mr. Wilbanks just lost taste. There wasn’t any taste to the food. He described this in approximately 1974. He stated that this persisted until after he moved away from the tavern area and stopped drinking the water.

He does have some shortness of breath with exertion and some questionable nocturnal paroxysmal dyspnea since the mid-1970’s. This is a shortness of breath in the middle of the night, and he would sit up in a chair and try to gain easier breathing. He also stated that he had some pedal edema, swelling of his feet, late in the day.

During the time that he was drinking the water he had nausea and vomiting with approximately a fifteen pound weight loss,

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but he gained this back and the nausea and vomiting disappeared after stopping drinking the water, but has recurred again after he had his x-ray and cobalt treatments for his kidney cancer. He has some urinary frequency with cloudy urine, and he first had the blood in his urine in January of 1981. He has pain in his low back. He has pain in both lower extremities.

During the time that he was using the water he described a rash of the skin, itching, with tingling particularly immediately after the shower. He changed soaps because of this, but the symptoms did not go away, until he stopped using the water. He has had tingling and paresthesias of both upper and lower extremities.

Mr. Wilbanks has already lost one kidney to cancer which the Court finds was the result of Velsicol’s contamination. He was also forced to move his family away from the Toone-Teague Road. He lives with the fear that his other kidney will fail. At the time of trial, his life expectancy was 23.2 years, without the effects of these chemicals.

Mr. Wilbanks testified he started having dizzy spells in 1973 (2210). He blacked out. His wife helped him up and he went to see a physician (2211). He has suffered headaches the past seven or eight years. His eye sight is failing. His weight was normally about 165 pounds (2212). When he moved away from the Toone-Teague area, his weight had dropped to 148 pounds. He said his legs hurt a lot from his hips down (2214). Then, he described a bleeding episode (2214-15):

Q. In 1981, state whether or not you had any bleeding?

A. Yes, sir.

Q. Tell the court about that. How did that happen?

A. Well, I started bleeding from my kidneys.

Q. And where did this bleeding first occur? Where were you?

A. I was at home.

Q. I want you to describe in detail to the court what happened? What did you experience?

A. Well, that was on a Saturday evening. You want me to just tell the way it happened and everything, the way it started? Q. Yes.

A. Well, I was at home there, and I just started bleeding, and so I didn’t say anything—

Q. Was that in the area of your privates?

A. Yes, sir. So I didn’t tell my wife or kids nothing about it, because they had set up to go to the skating rink that night. So I went ahead and got ready, and we went on up there and got them all with their skates on, and I was sitting there and I got me a coke. We were sitting there, and I started cramping and hurting, and I went to the bathroom, and it locked up on me, and I finally got it unlocked, and I went and told my wife that I had to go to the doctor fast. So they took me up there to the Bolivar emergency room, and admitted me in the hospital. I stayed there about three days, the best I can remember, and they got hold of Dr. Driver.

After a kidney was surgically removed, he underwent twenty-five treatments of chemotherapy or cobalt treatments (2218):

Q. After January 18th, 1981, Mr. Wilbanks, did you have certain chemotherapy or cobalt treatments?

A. I took twenty-five treatments.

Q. And over how long a period of time were these twenty-five chemotherapy or cobalt treatments?

A. It took five weeks.

He described the physical effect of these treatments upon him (2220).

Q. What effect did these twenty-five cobalt treatments have on your physical system, Mr. Wilbanks? How did they make you feel, how did the cobalt treatments make you feel?

A. They made me sick, and then when I would comb my hair, the hair would come out. Before I got through with them, the hair started coming out.

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Q. Did they ever make you nauseous or sick to your stomach, the cobalt treatments?

A. Yes, sir. I quit eating. I just got to where I didn’t want anything to eat.

Q. Did it ever make you weak?

A. Yes, sure did.

Q. And how about your hearing? Did you ever have any trouble with your hearing?

A. Real bad.

Q. State what period of time that you had problems with your hearing as far as these cobalt treatments were concerned?

A. Well, it started going bad on me just right after I had the cobalt, the best I remember. It started going bad on me the last year and a half or two years, my hearing, really falling back on me, getting worse.

He also described his condition further as it has affected his family

(2222):

Q. What effect has this operation and the uncertainty over this had upon you and your wife and your family, Mr. Wilbanks? Just tell the court?

A. Well, I slowed up on some of my work, slowed up on some of my work around there. I changed a lot. I know I have. When a man has got cancer, you know he studies about it, just wondering where it’s going to hit him next — the other kidney or what.

Q. What effect has that had on your wife, that you have observed?

A. Well, it changed me and her both, you know. I don’t think I can get along with her half the time, because I, you know, changed a lot. A lot of times she wants to sit down and talk a conversation, and I start, and I don’t never finish it out.

Mr. Wilbanks admitted he tasted moonshine whisky (2242) and smoked cigarettes about twenty-five years (2251).

The Court awards the following monies to James E. Wilbanks in an attempt to compensate him for his injuries:

a. Extent of injury and disability, including the loss of one kidney already to cancer and optic atrophy and neuritis and the increased risk of disease and risk of cancer to his other kidney and organs in the sum of $150,000;

b. Impairment of Mr. Wilbanks’ immune system in the sum of $75,000;

c. Psychiatric damages:

(1) Post traumatic stress disorder in the sum of $25,000;

(2) Fear of increased risk of disease and cancer in the sum of $100,000;

d. Pain and emotional suffering including 25 cobalt treatments in the sum of $250,000.

2. Impairment of Mr. Wilbanks’ quality of life in the sum of $75,000.

Curry A. Ivy

Plaintiff Ivy is the one plaintiff who not only was subjected to the drinking of the Velsicol chemicals in water but also was occupationally exposed to heavy doses of those same chemicals. He not only suffers from increased risk of disease and cancer as do the other plaintiffs, he has optic nerve damage and optic neuritis which is a known effect of exposure to carbon tetrachloride.

Mr. Ivy was born on January 3, 1926, in Chester County, Tennessee, where he lived until 1942 when he moved to Madison County. He lived there until 1966 when he moved to the Rosetta Brooks property on the Toone-Teague Road. He moved to Toone, Tennessee in 1972 but continued to drink from the well at the Rosetta Brooks property as well as the Velsicol farm well.

In 1971 he started driving a truck, hauling chemicals from the Velsicol plant in Memphis, Tennessee to the dumpsite, and he hauled approximately two to three loads per day. He drank from the Brooks well as well as the Johnson well, and since he was around chemicals all the time and his clothes were saturated with these, he did not notice any particular change in the odor of the water until sometime in 1978.

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He described his symptoms of exposure as that he got very tired and very irritable when he was hauling these materials. His nerves got very bad, and he said that this caused problems between him and his wife. He had severe headaches while driving the truck, and there was some dizziness associated with this. The headaches persist, but they are better when he is not around the chemicals.

He has worn glasses since 1946, but feels that his vision is worse at the present time, and he had marked burning of his eyes when he was around the chemicals, as well as some discomfort to light or photophobia. He described his hearing as being poor with some ringing in his ears, and some burning and pain in the nose when around the chemicals, and at that time he had some episodes of nosebleeds, but has had none at present.

At the time he was around the chemicals, he had some soreness of his tongue, but did not describe other changes. He had some nausea, particularly when he was hauling the chemicals, but it had gotten better since he had been away from the chemicals, and at that time he also experienced some diarrhea. As far as his extremities were concerned, he had noticed some tingling of his lower extremities, as well as “pins and needles” type sensation. On physical examination he had multiple sebaceous cysts around the area of his head, with his eyes demonstrating the disc to be poor, with decrease in his optic fields and his peripheral vision.

Upon examination, he was slightly tender over his liver, but his liver could not be felt to be enlarged. His current (1982) laboratory studies were within normal limits as far as his liver enzymes and his kidney enzymes, and he had a neuro-opthalmology by Dr. Drewry, which did show decrease in visual acuity, as well as decrease in optic peripheral fields.

In 1979, Mr. Ivy’s SGGT, the albumin, the SGPT, the SGOT, and the C02 combining power, and the BUN as well as the non-fasting SLCC were all abnormal as far as the laboratory norms given with this examination. This was evidence that indeed there was liver injury and damage even by 1979 examinations were drawn, and particularly with the bile acids, that this was conformatory of the other liver enzymes.

Insofar as Mr. Ivy’s eyes were concerned, the discs looked pale to Dr. Rhamy and in examination of the optic field, it appeared to Dr. Rhamy that they were indeed restricted; that there was a decrease from normal.

Mr. Ivy’s life expectancy is 19.3 years.

Mr. Ivy testified he washed dirt and chemical waste off the bulldozer treads at the burial site (Tr. 2266). He described Velsicol’s burial operations at the site (2267):

Q. Did you ever see the bulldozer driving over any of the barrels?

A. That’s right.

Q. What would happen to the barrels when that would happen?

A. Well, it’s just like any other barrel you would drive a bulldozer over, it would mash.

Q. Did you ever see chemicals coming out of the barrels?

A. Yes, sir.

Q. How far was the tavern from the entrance to the dump?

A. I’d say a hundred yards, maybe 200, somewheres in that neighborhood.

Q. When you were driving up from Memphis with a full load, which way would you be turning off the Toone-Teague Road to get into the dump?

A. I would be turning right.

Q. When you made that turn would any of the chemicals ever leak from the truck?

A. Yes, sir, it leaked all up and down the road.

He said he could smell the chemicals when he was driving the truck hauling chemicals waste to the site (Tr. 2269). He described his health problems as follows (2269-70):

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Q. Would you tell the Court, Curry, what health problems you noticed while you were hauling for Mr. Thomas and working up there on the dump site?

A. Well, I had eye problems. My eyes would burn and hurt me all the time. A lot of times I would lay down at night, I would have to put damp cloths on my eyes to keep them from burning.

And I got short of breath, I couldn’t hardly breathe. I got extremely nervous.

Q. Did you have any throat problems?

A. Well, not too much throat problem. My throat would burn some, but, you know, not too much throat problem. I never had too much throat problem.

A. You mentioned a problem with your eyes. Did you notice any effect on your eyesight or your ability to see during that time?

A. Yes, sir, my eyes would get blurry. They wouldn’t clear up.

Q. When you stopped hauling for Mr. Thomas, did that have any effect on your health problems?

A. Well, it seemed like I got some better about my seeing.

Q. Did you ever get back to where you felt you were before you started hauling?

A. No.

He testified he suffers emphysema (2283) and has smoked cigarettes for years (2284).

The Court awards the following monies to Mr. Ivy in an attempt to compensate him for his injuries:

a. Extent of injury and disability, including optic atrophy and neuritis and the increased risk of disease and risk of cancer in the sum of $75,000;

b. Impairment of Mr. Ivy’s immune system in the sum of $75,000;

c. Psychiatric damage:

(1) Post traumatic stress disorder in the sum of $50,000;

(2) Fear of increased risk of disease and cancer in the sum of $50,000;

d. Physical pain and emotional suffering in the sum of $50,000;

e. Impairment of Mr. Ivy’s quality of life in the sum of $50,000.

Daniel R. Johnson

Mr. Johnson was gainfully employed as an experienced heavy duty equipment operator until stricken by Velsicol’s chemicals. Without repeating the facts above, he is now a mental cripple. Until his death, he must depend on the good will and graces of his wife and children who themselves have already had cancer to escape from the confines of his immediate environment. He also suffers from the fear that his children will get cancer.

Mr. Johnson was born on May 18, 1938, in Algoma, Mississippi. In 1940 his family moved to Memphis. They remained there until 1945, when his family went into the military and was stationed in Arkansas, Missouri and Texas. In 1948 they returned to Mississippi, where he left school while in the sixth grade and went to work for his father on the farm.

In 1954 he went to Pascagoula, Mississippi, where he worked with heavy machinery. He did this for approximately one year and returned to Algoma, where he again worked on the farm and stayed there until 1962, when he went to Memphis, Tennessee, where he again worked with heavy machinery until 1964, when he moved to St. Louis, Missouri, where he worked in a service station. He then moved to Hardeman County on the Toone-Teague Road and lived there from 1976 to 1979. He has since then moved back to Missouri to West Plains, Missouri.

During his early life he was in good health. In 1955 he had a right inguinal hernia repaired. He feels that his health was good until the time of drinking water from the dump. He moved with his family to the dump area in 1976. He was farming as well as working in a service station after moving to the Toone-Teague Road.

They had a deep well which gave cool water, he stated, and in early 1977 he noticed an oily substance appearing on the surface of the water. They also noticed an

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odor in 1977 which became worse during 1978. Because of the oily substance, they called the county agent in 1977, who told them then that the water was all right.

In 1978 Mr. Johnson stated the water smelled like Black Flag insecticide and that they called the State Health Department, who tested the water and the air in his living room and told them to stop drinking the water and to move out of the house and they moved, he stated, in 1979. Mr. Johnson stated he did not drink water from any other source until the National Guard hauled water into them and their consumption of water was from his own well, the Johnson Well.

As you look at the number of times that he has been to a physician over the years, he had only been there one or two times at the most per year until 1980, when he started then going ten to twelve times per year and in ’81 he stated he went twelve to fifteen times a year. He does not smoke. He drank a little at age seventeen, but then quit. His diet is normal. He does take BC powders for headaches and Tylenol Number 3 occasionally for backache. He developed headaches in 1977 to 1978 along with an upset stomach, extreme weakness and “problems with his nerves at that time.”

There were and are a great deal of family problems because the family, Mr. Johnson stated, is always sick. Evidently the family is also very anxious about their illness and this causes a great deal of friction within the family. He is currently disabled by the State of Missouri and receives some sort of disability because of a psychiatric condition. He is probably unable to engage in gainful employment for the rest of his life.

He denies any previous problems other than the congenital right inguinal hernia which was repaired in 1955 and 1974 and a pulled back muscle in 1974. As far as symptoms related to the head were concerned, he said until 1976 and ’77 he had had no problems, but then started to develop severe bilateral temporal headaches daily. These were worse during and for several hours after taking a shower. This caused him to get dizzy and to feel faint. On one occasion he stated that he passed out.

He stated that he had intense burning of the eyes, which was present all of the time but was worse when he was bathing. He stated his eyes were bloodshot and he “felt like there was sand in my eyes” most of the time. There was some photophobia present and he states that since ’77-78 he has noticed some deterioration in his sight.

As far as the ear, nose and throat, there was some decrease in hearing being noticed with ringing of his ears at the time of the exposure. His nose burned all the time during exposure, being much worse when taking a shower. Those symptoms have disappeared since he has moved away from this area and has stopped using the water. His throat became sore and remained so with hoarseness during that period of time, but that also has cleared. His throat and mouth tingled during that period of time and that has also cleared.

His teeth were hard to keep clean and he stated he had a coating on his tongue which was so bad that he had to use a toothbrush on his tongue and he lost all taste for a while during the period of 1977 to 1978. He has had marked problems with his teeth since 1977 and 1978 and he has been seen by a dentist in Missouri, and has had almost a full mouth extraction by that dentist.

As far as his chest was concerned, he had marked coughing during 1977 to 1979, particularly when taking showers, but that has completely cleared. At the time of exposure he states that he had an increased number of upper respiratory infections and that it hurt to take a deep breath. That also has cleared.

He had nausea and vomiting which was severe during the period of 1977 and 1978 when the odor and the taste of the water were the worst. As far as his skin was concerned, he stated that he had a rash during the period of exposure. He would get blisters with taking a shower, with intense itching. There were red blotches

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all over his body and his skin would become very dry and scaly. He stated that the family, in order to try to avoid the symptoms, tried boiling the water and stated that that did not relieve the irritation when bathing.

And as far as his neurological symptoms were concerned, he does have some tingling of his hands, particularly on the left, as well as his legs. He has some problems with balance and states that he is still very weak and that he cannot do fine movement with his hands.

On physical examination he had some decreased vision with decreased optic fields. His blood pressure was 158 over 100. There was some tenderness in what we call the right upper quadrant in the area of his liver. He has weakness of both hands and legs and on neurological examination he had decreases in his reflexes in the lower extremities. His current liver enzymes at trial were within normal limits.

He has decrease in visual acuity which cannot be explained by an aberration of the lens of his eye, plus a decrease in his visual fields. On discussion with Dr. Drewry, as well as Dr. Rhamy’s impression, the Court believes that this is evidence of optic nerve dysfunction, most probably due to the chemicals.

During the period of the ingestion, particularly in 1977-78, Mr. Johnson became somewhat nervous. Mr. Johnson wasn’t concerned as much about himself but that he just couldn’t get out of his mind that his kids are going to develop cancer. He didn’t say they might. Mr. Johnson feels that his kids are going to develop cancer and he is extremely concerned about their future health. For example, he has a daughter who already has had an ovarian tumor which was removed. Mr. Johnson is absolutely convinced that she got this tumor because of the exposure to chemicals and he is almost psychotic about his concern and apprehension for his family.

At the time of trial, Mr. Johnson’s life expectancy was 29 years.

Patsy Faye Johnson,

wife of Daniel Johnson, testified during the trial she and her husband had been married 20 years and have 5 children (2296-97). She said they moved from Memphis, Tennessee, to the Toone-Teague area in August of 1976 (2287). She said the home had a well for water supply. At first, the water was fine and all members of her family were in good health (2298). Daniel Johnson was a heavy equipment operator (2299). In 1977, she noticed her children were not as energetic as they had been (2301). She described what happened in her family (2302-08):

Q. You mentioned that the children didn’t seem to have as much energy. Did they have any specific medical or health problems that they had not had before?

A. Yes, sir. Over towards I guess the fall of ’77 they started having medical problems.

Q. What were those?

A. Well, Pamela took a cold and she got down real sick, so we took her to doctors and they couldn’t find anything wrong with her. She missed a month of school. I sat by her side for a month because of the way she was doing. She would start choking and coughing, she couldn’t breathe. She would fight me just like a person drowning. And she would be vomiting, she would vomit up green slime, phlegm, whatever you call it. And where she would vomit on a wood floor, it would be bleached white.

Q. Did any of the other children develop problems?

A. Yes, sir.

Q. What types of problems would they have?

A. Well, we all had headaches and nausea; some vomited, but mostly nausea at the time; and Dan was sick; we all had the same thing, upset stomachs.

Q. At this period of time, you said toward the fall of 1977, Patsy, had you noticed any changes in the water?

A. Yes, sir, we noticed it — well, Dan first noticed it. When we watered the dogs, the kids always took care of them. Dan got onto them because the pan, he said, wasn’t

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clean, it had an oily film on it. And it was the same way the next day and he had washed it, so we—

Q. Go ahead.

A. So we called Hardeman County Health Department to come out and check it.

Q. Who came out, if you know?

A. I believe it was Mr. Wallace. It’s been so long, so much has happened. He came out and checked it I guess the first part of the fall and didn’t seem too concerned about it. He lit a piece of paper and put it under the faucet, I don’t know what he was doing, let it burn under the faucet for a little while. And that’s all.

Q. Did anyone from the County ever tell you that there was ever anything wrong with your water?

A. No, sir.

Q. What did the water smell like?

A. The water to us smelled like fly spray or bug spray and it was stronger — you know, the longer we stayed there the stronger it got.

Q. This film that you testified first appeared in the dog pan, did that ever show up anywhere else?

A. Yes, inside on some of the dishes. You could get a glass of water and empty it and it would leave a film, you know, in the dishes or whatever you had it in.

Q. Did the taste and odor change over time?

A. Yes.

Q. What was the change?

A. Well, as time went on, you know, it got worse, got stronger. I know at one time Dan and I both were afraid that we were going to lose Pam, that’s how bad she got. She would walk across the yard and her legs would give out, she’d fall, she couldn’t go.

Q. Would drinking the water while she was sick have any effect on her problem while she was having this sickness that you testified about?

A. I think it did, it made her worse, because we didn’t know nothing about the chemicals at that time. And we were steadily — well, the way Dan looks at it now, we were steadily poisoning our kids ourselves and didn’t know it because nobody had told us.

Q. Did you ever boil your water?

A. Yes, sir. We thought maybe if it was sewer or bacteria in the water, by boiling it might help, you know. We boiled it for a long time.

Q. Was this after the time that you had called Mr. Wallace?

A. Yes, sir. We boiled it until someone, I don’t remember exactly who, told us we made it twice as worse, that’s after we found out, and we had made it twice as bad on us by boiling it.

Q. Do you recall who that person was?

A. I couldn’t be positive, I will have to say.

Q. Were they with some agency, State or—

A. I would say EPA was who told us.

Q. You testified to some of the problems that particularly Pam was having and some of the other children, headaches. What were the problems that you noticed in Dan?

A. Well, Dan, he could go down the hill, it’s not that far, and I would look out and he would be sitting down, he couldn’t make it back up the hill, he would be fatigued, you know, whatever you want to call it. He would have to be so tired he would have to sit down and rest. And I don’t know, it caused a lot of problems between us. Dan was — after we found out about it, I think he kind of blamed himself, you know, for moving us there.

Q. You say nervous?

A. Yes.

Q. What were some of the things that you could see as a wife that led you to believe he was nervous?

A. He was depressed a lot, but due to what happened he kind of took it out on us, I think, his frustrations over — after all this has happened, not being able to work now and take care of us. It depressed him. I

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don’t know, he just worried s.o much about the kids and what had happened.

Q. Did he have any problems with his eyesight?

A. Yes.

Q. What happened to that?

A. Well, they have been daily getting worse. We have all had problems with our eyes. The doctor told me my girls was like the blind leading the blind.

Q. Did the State ever test the water, to your knowledge?

A. Yes, sir, I’m sure they did.

Q. During this time, Patsy, would you tell the Judge all of the things that you were using water for in and around the house?

A. We used it for everything, cooking, bathing, washing dishes and clothes, mopping the floors, just everything that you would use water for, washing our vehicles, we used it for that, feeding our dogs.

Q. How old were the four children that you had in 1976?

A. At that time?

Q. Yes.

A. Oh, let’s see. It’s been five or six years since we lived there, moved there. It would be — I’d say Danny was about 14, Pam about 13, and Sandy and Connie about 10 and 9, just off the top of my head. Q. How many loads of wash would you do in a week?

A. With four kids I washed two or three loads a day.

Q. Did the washing machine going through its cycle have any effect? Could you smell the water from the washing machine?

A. When you first opened it, it was pretty strong, after washing.

Q. How often would your children and you and Dan take a bath or a shower?

A. Well, Dan and I usually once a day, but the kids usually twice a day, especially when it was warm.

Q. Did that have any effect on their skin?

A. Well, at the last when they kept taking baths they would break out in rashes, the skin would be flaky, you know, and dry. They would come out of the bathroom, they couldn’t hardly see straight, they would be so — the steam, you could smell it so strong they would have to come out, they would be dizzy when they come out of the bathroom.

Q. Could you smell it when they opened the door?

A. Uh-huh. The way our living room and bathroom is situated, if you were standing there when they opened the bathroom door and the steam, you could smell it real strong.

Q. How about Da-’s skin, did he have any rashes and itching.'1 A. Yes, sir.

On April 16, 1978, she received a letter warning her that water in her family well contained chemicals (2309-10). She described the effects of this trauma upon her family (2310-11):

Q. As a result of receiving that letter, did you stop using the water for drinking?

A. Yes, sir.

Q. Where would you go to get your water?

A. Well, we’ve hauled it from the Chickasaw State Park and we’ve hauled it from Memphis, we’ve hauled it from Bolivar, anywhere we could get it.

Q. Was that inconvenient to you?

A. Of course, yes, sir.

Q. Did it cause a change in your daily life and routine?

A. Yes, sir. When we first left Memphis to come to Toone-Teague, we had never had a home in our life. It was the first time we ever had. We was proud of it. The kids liked their schools, our neighbors. Dan liked it because he could get out closer to his fishing and hunting. And when all this fell through when we drank that water that had the chemicals in it, Dan was disappointed, we were all disappointed, but Dan, when he realized what effects it could have on us and our children, he — I don’t

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know how to describe it. He changed. It caused our whole family to change. We lost everything.

She described Daniel Johnson’s health as follows:

Q. What is Dan’s health like today?

A. It’s not good.

Q. Would you tell the judge what type of problems he is having?

A. Well, Dan has had a lot of problems with his stomach — headaches, his eye problems, and he has had a lot of numbness in his left hand and arm. It goes up in here (indicating). He has had a lot of problems mentally, also, worrying about the kids.

Q. Did he have any of these problems before you moved to Toone-Teague and started having the problems?

A. No. He didn’t have no worries about medical problems, or anything like that, and Dan has got worse, as we learned more about the chemicals, and Pamela developed a tumor, an ovarian tumor, and they removed it.

Q. Have you developed any tumors?

A. Yes. I have three tumors now at this time in my legs. I had a tumor in my breast. They operated and told me it was in the early stages of malignancy, and they operated, which I was lucky at that time, because I have fibrocystic disease, and I have to watch it real close.

On November 9, 1978, she stopped using water from the well completely after receipt of the following letter from the Environmental Protection Agency (2317):

A. (Reading) “These analyses confirm the presence of carbon tetrachloride in your well. The analysis of your well shows 1.7 parts per million of carbon tetrachloride. This constitutes an imminent health hazard and all usage of the well water should be discontinued. This affirms my letter to you of November 2nd, 1978, in which I requested that you discontinue all uses of the water until additional tests could be performed. It is my understanding that you or your attorney was informed of this latest information in a meeting in Mr. John Wilder’s office in Somerville, Tennessee, on Saturday, November 4th, 1978.”

They moved from the home immediately (2319). Mrs. Johnson described how all this has affected Daniel Johnson:

Q. How old is he now?

A. Forty-two.

Q. Would you describe for the Court, Patsy, what’s Dan’s emotional and nervous condition like today?

A. Compared to what it was five or six years ago, his condition today is pretty bad.

Q. Would you tell the Court some examples of changes that you noticed in him and the effect it’s had on the life of you and your family?

A. Since Dan and I found out about the chemicals, he moved us up here and let us drink it, it’s caused him to be depressed a lot, it’s caused problems between us, his nerves are bad, due to worry about it all, I guess, what the future is going to be for the kids.

Q. Has it affected his sleep?

A. Yes, sir. He’s anxious. He don’t know what to expect, which none of us do, really.

The Court awards the following monies to Mr. Johnson in an attempt to compensate him for his injuries:

a. Extent of injury and disability, including increased risk of disease and cancer in the sum of $150,000.

b. Impairment of Mr. Johnson’s immune system in the sum of $150,000.

c. Psychiatric damage:

(1) Post traumatic stress disorder and severe trauma in the sum of $250,000;

(2) Fear of increased risk of disease and cancer in the sum of $250,000.

d. Physical pain and emotional suffering in the sum of $125,000.

e. Loss of earnings capacity and lost wages in the sum of $250,000.

f. Impairment of Mr. Johnson’s quality of life in the sum of $100,000.

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James 0. Maness, Jr.

This seven year old plaintiff was bathed by Velsicol's chemicals even while he was still in the uterus of his mother.

Jimmy Maness was bom on September 1, 1976 and lived at Steve Sterling’s home much of the time in his early life. He drank from the Sterling well as well as the Maness well. His birth was normal, but his birth weight was three pounds two ounces and his early development was somewhat slow, with severe allergies, blood discrasias, as well as an episode of seizures in early 1982.

His mother spent much of her time at the Steve Sterling home during her pregnancy and drank from his well. His symptomatology was that he had frequent headaches, they were particularly in the frontal area, with some dizziness, with episodes of seizures during which he passes out. His eyes during the period of when he was bathing in the water during the time of odor were bloodshot, with photophobia being noticed. He had nosebleeds, had a sore throat, he had hoarseness of his throat or his voice, and his tongue was coated. His skin was like leather as a baby. He had lymph node adnopathy, including enlargement of the nodes of the neck. He has a chronic cough with some shortness of breath. He had some nausea and vomiting at the time of the exposure and supposedly had some black tarry stools during the first three years of life. He also had some urinary frequency, dysuria, some urgency and nocturia.

On physical examination this child had a rather thin facial appearance as well as an enlarged liver. It was the opinion of the medical witnesses that the description of headaches, the description of bloodshot eyes, the description of nosebleeds, the upper respiratory irritation are symptoms which are associated with breathing and drinking of the Velsicol chemicals in significant concentrations. The boy’s liver was abnormally large and he had on examination an elevated alkaline phosphatase, which is approximately three times the upper limits of normal. This may be due to the fact that he is a child and he is growing, but he also has an elevation of the SGGT as well as the SGOT and as well as the LDH. The SGGT is hard to ascribe to anything other than liver damage.

Dr. Rhamy knew of no other origin for this boy’s liver problems other than the exposure to chemicals during his early infancy and during the time that he was being carried by his mother

in útero.

Dr. Rhamy also believed that it was more probable than not that Jimmy Maness’ condition are related to the exposure to chemicals. He also believed Jimmy was at increased risk of cancer in his later life.

As in the case of the other plaintiffs, Jimmy Maness’ immune surveillance system has been destroyed. His normal life expectancy is 74.4 more years.

For the reasons set forth, the Court awards the following monies to Master Maness in an attempt to compensate him for his severe personal injuries:

a. Extent of injury and disability, including increased risks of disease and cancer in the sum of $250,000.

b. Impairment of Jimmy Maness’ immune system in the sum of $500,000.

c. Psychiatric damage:

(1) Learning disorders in the sum of $150,000;

(2) Fear of increased risk of disease and cancer in the sum of $250,000;

c. Physical pain and emotional suffering in the sum of $150,000;

d. Loss of earnings capacity in the sum of $500,000;

e. Impairment of Jimmy Maness’ quality of life in the sum of $500,000.

The Court read the proposed findings of fact and conclusions of law submitted by counsel for plaintiffs and for Velsicol. Having made its own independent determination that a preponderance of the evidence in the record proves that Velsicol is liable to plaintiffs on the legal theories of strict liability, common law negligence, trespass and nuisance; and, having determined that Velsicol’s hazardous chemicals escaped from the burial site and contaminated the

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wellwater of plaintiffs; and, having determined those hazardous chemicals were and are the proximate cause of injuries and damages suffered by plaintiffs; and, having determined that Velsicol was, in its chemical waste disposal program, engaged in an ultrahazardous and abnormally dangerous activity, the Court finds the proposed findings and conclusions presented by plaintiffs support the Court’s findings and judgment in this case. The Court therefore adopts and incorporates into this opinion the following findings of fact (numbered 1 through 719) submitted by plaintiffs:

A.

FINDINGS OF FACT

I. BACKGROUND AND ISSUES TRIED

1. This action was originally filed on December 4, 1978 in the Circuit Court of Hardeman County, Tennessee as a class action seeking damages and other relief from defendant’s dumping and abandoning the equivalent of an estimated 300,000 55-gallon drums (1.6 million gallons) of chemical waste on a farm owned by defendant and located along the Toone-Teague Road in Hardeman County, Tennessee. (Petition for Removal).

2. Defendant removed the action to this Court, the Federal District Court for the Western District of Tennessee, on December 8,1978 alleging,

inter alia,

diversity of citizenship and that the matter in controversy exceeded the sum of $10,000, exclusive of interest and costs. (Petition for Removal).

3. The amended complaint, filed in this Court, tracked the original complaint filed in the Circuit Court of Hardeman County, Tennessee. It asked for the certification of a class and sought both compensatory and punitive damages and injunctive relief due to the involuntary exposures of plaintiffs to certain chemical substances known to cause cancer, effect the central nervous system and permanently damage other organs of the human body. It also sought damages for the loss of value to the real property owned by plaintiffs in the region affected by the chemicals. The complaint is bottomed upon the theories of strict liability, negligence, trespass and nusiance.

4. The answer admitted many of the factual allegations of the complaint. The allegations that were admitted include the following:

a. That plaintiffs were all residents or property owners of Hardeman County, Tennessee and lived on or owned property within the close proximity of the farm owned by Velsicol and where Velsicol dumped its chemical waste. That farm is located in the northern part of Hardeman County on the Toone-Teague Road. Plaintiffs had enjoyed the benefits of clean well water on their own property (Am. Comp’t para. 1; Answer para. 1). Although defendant objected to characterizing the farm dump as a “hazardous waste dumping site” in its answer (Am. Comp’t para. 1), in ultimately complying with State law in 1973, Velsicol filed a statement on June 28, 1975 with the Hardeman County Registrar of Deeds entitled “Notice of a Former Landfill Site”. That Notice stated

inter alia:

“The materials deposited in and under the [farm dump] consisted of chemical process by-products which are hazardous.” (Ex. 171)

b. That for many years Velsicol has operated a chemical plant in Memphis, Tennessee wherein certain pesticides are manufactured. As a result of such manufacturing, there occurs certain wastes or by-products. (Am. Comp’t para. 3, Answer para. 3) Velsicol refused to admit in its answer that the by-products or wastes were “ultra-hazardous to the health and well-being of the public.” (Am. Comp’t, para. 3).

c. That from October 1964 to June 1972, Velsicol deposited the wastes and byproducts associated with its manufacturing facility in Memphis on a Hardeman County farm. (Am. Comp’t para. 4; Answer para. 4) Velsicol refused to

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admit that at least some of this material was liquid in form. (Answer para. 4)

d. That in 1967 a report was prepared by the United States Geological Survey to study the potential contamination effects of the wáste that had been dumped up to that time. (Am. Comp’t para. 6, Answer para. 6)

e. That since the 1967 study, of which Velsicol had actual knowledge, Velsicol continued to dump more waste into its disposal in the same manner as it had done before

with no consideration as to the contamination which it was creating

until it finally ceased dumping in June of 1973 under a order from the Tennessee Department of Public Health. (Am.Comp’t para. 7; answer para. 7). (Emphasis Supplied).

f. That during the period from 1962 to 1973, Velsicol more than doubled the size of the disposal site. Velsicol between 1964 and 1973 cleared the land of trees, and the surface soil texture was disturbed by excavation and back-filling of numerous trenches. The site clearing and trenching have brought about both a decrease in the rate of transpiration from the site and an increase in the rate of infiltration of precipitation through the disturbed soil. In addition, depressions formed over the disposal trenches owing to compaction and soil subsidence around the water drums. There depressions tended to increase infiltration either by allowing ponding of rain water on the surface or by providing ready access to the subsurface by water flow through tension cracks associate with the depressions, all of which were pointed out as contributing factors to the situation in Hardeman County discussed in the 1978 report of the United States Geological Survey.

Velsicol refused to admit in its answer that the farm dump in Hardeman County was a “terrible contamination problem” but alleged that the Farm was only a “situation.” (Am. Comp’t, para. 8; Answer, para. 8).

5. In addition, defendant’s counsel made the following admissions or assertions relevant to the issues raised by the pleadings and during the trial namely:

a.

“

these people that were in the original lawsuit were discomfitted, had their life thrown out of kilter, and they are entitled to something.” (Tr. 90).

b. “Velsicol admits there is a plume out there, and admits that it has damaged certain people. The amount of the damage, of course, is in dispute.” (Tr. 3535).

c. “The defendant feels that the people within the plume, the original plainitffs, have in all likelihood experienced a trespass and if there is property damage as a result of that trespass, if the court feels that personal injury is a result of that trespass, i.e., drinking of the water damage and the like, then trespass is truly the cause of action that should be pursued in this Court.” (Tr. 3538).

d. “ ... we would agree that that [real] property has experienced some damage. The question will be the extent of that damage.” (Tr. 5412)

e. “As we view this case, the negligence and strict liability aspect of it really aren’t too important because the defendant in the case may have liability to some or all of the members of the class, irrespective of whether we are guilty of any acts of negligence, or irrespective of whether the strict liability concepts are met by the plaintiffs’ proof” (Statement by Velsicol’s counsel. (Tr. 5406)

6. On the other hand, at trial and as pointed out below, the position taken by Velsicol’s witnesses and counsel showed an unrepentant and almost abusive or callous attitude towards plaintiffs’ rights. Velsicol under no theory had any basis to abuse these rights, particularly with the arguments that Velsicol had the right to make a profit. or that Velsicol’s actions were of economic necessity to it. For example:

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a. “Think solely [Your Honor] in terms of carbon tet, chloroform, what it really does to a human being at those levels in the water. Sure, it’s bad to taste, but does it have any lasting effects. (Tr. 90) (Mr. Gentry in his opening statement).

b. “ ... you know, I’ve been trying not to use that word dump, but the news media just finally rubbed off on me, I guess. I really take exception to the use of the word dump for the Hardeman County landfill because in my opinion it is really not a dump, its a landfill. It was not operated like a dump” (Tr. 4172) (Testimony of Charles R. Hanson, former plant manager and present Director of Velsicol’s Environmental Center).

c. “Several of the names are those of people who are extreme conservationists and would consider a stone throw in a brook a matter of great importance” (Ex. 165; letter of Mr. Anthony, plant manager referring to persons invited by the State to attend the March 4 , 1971 meeting concerning the dump. These individuals were

all

federal or state or local health officials concerned with Velsicol’s use of the dump).

d. “As you know from experience with the Overton Park expressway deal, minor groups seem to have overwhelming power” (Ex. 165; Mr. Anthony’s letter referring to the local citizenry and authorities that were trying to curtail the dumping on the farm). See the exercise of such power by “minor groups” referred to by Mr. Anthony in

Citizens to Preserve Overton Park vs. Volpe

401 U.S. 402 , 28 L.Ed. 136 , 91 S.Ct. 814 (1971).

e. In having his objection overruled to introduction of financial information showing incineration was more costly than the costs of a landfill, Velsicol’s counsel stated: “I understand Mr. Gilreath’s position to be that any corporation that is striving to save money is guilty of negligence.” (Tr. 1761).

f. Dr. Francis C.P. Roe, identified by Velsicol’s counsel as “a world expert [in cancer] and we are lucky to have him for such a short time in Memphis” (Tr. 8397) testified that cancer “is probably one of nature’s many ways of eliminating sexually effete individuals who would otherwise in nature’s view compete for available food resources without advantage to the species as a whole.” (Tr. 8445-46). He further explained that the statement means “people or animals that are past the point at which they reproduce the species. They are no longer capable of reproducing.” (Tr. 8446). Such individuals “would certainly be women after menopause” (Tr. 8450) but as to Winston Churchill: “I have no idea when he became sexually effete. I think he kept it up until his deathbed.” (Tr. 8452)

g. Velsicol alleges that “inflammatory and distorted” newspaper articles, describing Velsicol’s activities, the dissolution of a federal task force studying health effects of plaintiffs without presenting to plaintiffs any written conclusions (Velsicol was a member or participant) and Dr. Clark’s study which Velsicol claims to be “gross negligence” were “separate, independent and efficient intervening causes” creating the damage to plaintiff’s real property and the post traumatic stress disorders which Velsicol has now conceded in its defense actually did occur to plaintiffs. Thus the effects are not the result of Velsicol’s deliberate and indiscriminate dumping. (Second Amended Answer and Supplemental Pleading (If 9)).

7. This Court issued an order on February 12, 1981 granting class certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure (Judge Robert M. McRae). In that order, Judge McRae stated, in pertinent part:

In the opinion of this Court, the factor which compels class certification is that common questions of law and fact overshadow issues affecting only individual members. Each class member will have

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lived in the vicinity of the landfill and will have suffered damages, whether to person or property as a result of contact with water contaminated by toxic chemical wastes. For each, almost identical evidence will be required to establish the source of contamination, defendant’s responsibility, and proximate causation____ The major issue distinguishing the class members is the amount of damages sustained (Order on Class Certification, filed February 12, 1981).

8. On September 11, 1981, Judge McRae held a hearing to determine the geographic area to be used to devise the notice for the ultimate determination of the class. Judge McRae after hearing testimony from four witnesses and arguments from all parties determined that:

What I would like to do is, based on being totally arbitrary, I would like to send it to a three mile radius, measured from the centermost point in the north line of the Velsicol property. My theory being, I think from, this hearing I have learned that there is more risk to the north, and start from that, and then that will mean it won’t come as far south. (Tr. 70).

9. By Order filed on June 2, 1982, the Court established the manner in which the case was to be tried. In pertinent part, that order stated:

1. The first phase of the trial will commence on June 21, 1982 with the Plaintiffs’ attorneys selecting representative members of the class and presenting proof as to the issue of liability on behalf of each representative and the entire class, their claims for individual compensatory damages for personal injury and where applicable, property damage. Additionally, the issue of punitive damages, for the entire class will be tried at that time.

2. The initial phase of the trial will concern itself with the question of the defendant’s liability under the plaintiff’s theories of negligence, strict liability, trespass and nuisance as to be outlined in the Plaintiffs’ theory of liabilities in the final Pre-Trial order.

4. The manner and mode of the subsequent phases of the trial, including, but not limited to the establishment of sub-classes, a future fund, damages to wildlife, the establishment of compensatory damages to the remaining members of the class, if applicable, and the division of the punitive damage award, if any shall be deferred until after the initial phase of the trial is completed.

10. Plaintiffs timely designated five (5) representatives of the class and trial of the first phase of this action begun on June 21, 1982. Evidence was received for these five representatives and the class as follows:

(a) Proof to determine liability as to all members of the class;

(b) Assuming liability for damages on the part of defendant, proof was introduced to show the damages of the 5 flagship plaintiffs, both personal and property; and

(c) On behalf of the class concerning liability for punitive damages and the amount that should be levied.

11. After 65 days of taking testimony, the trial was concluded on December 16, 1983. A total of 97 witnesses gave testimony. The trial transcript consists of over 10,000 pages as of February 3, 1984. There are 536 exhibits.

II. THE CAST OF PRINCIPAL CHARACTERS

A. Plaintiffs and the five designated representatives of the class

12. Plaintiffs all resided or owned property or both within close proximity of a farm purchased by defendant Velsicol on July 18, 1964 and located along the eastern side of Toone-Teague Road in the northern part of Hardeman County, Tennessee. (Am. Comp’t para. 1; Answer para. 1).

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13. The five designated flagship plaintiffs, together with a brief description of their injuries and life expectancies, are:

a. Mr. Steve Sterling, property damage, personal injury which includes liver damage and destruction of his body’s immune surveillance system and psychological damage. He was born on December 25, 1922 with a life expectancy at the time of trial of 17.2 years (Ex. 269, Tr. 3206);

b. Mr. James E. Wilbanks, personal injury, which includes the removal of one kidney caused by cancer, destruction of his body’s immune surveillance system and psychological damage. He was born on July 15, 1931 with a life expectancy at the time of trial of 23.2 years (Ex. 269, Tr. 3206);

c. Mr. Curry A. Ivy, personal injury, which includes optic nerve damage, optic neuritis, damage to the central nervous system and destruction of his body’s immune surveillance system. He was born on January 3, 1926 with a life expectancy at the time of trial of 19.3 years (Ex. 269, Tr. 3206);

d. Mr. Daniel R. Johnson, personal injury which includes nerve damages, optic damage, headaches, rashes, destruction of his body’s immune surveillance system and psychological damage. He was born on May 18, 1938 with a life expectancy at the time of trial of 29.0 years (Ex. 269, Tr. 3206); and

e. Master James 0. Maness, Jr. a seven year old boy at the time of trial, personal injury which includes allergies, seizure-type activities, psychological and learning disorders and destruction of his body’s immune surveillance system. He was born on September 1, 1976 with a life expectancy at the time of trial of 74.4 (Ex. 269).

14. Although some twelve to fifteen drinking water wells were ultimately contaminated and closed by the authorities (Tr. 1526), some five wells for the purposes of this phase of the trial were of major importance because it was from those wells that the five flagship plaintiffs had obtained their water. These wells were designated as:

1. The Steve (or Woodrow) Sterling well from which plaintiffs Steve Sterling and James O. Maness, Jr., drank their water;

2. The Daniel Johnson well upon which plaintiff Daniel Johnson and his family drank their water;

3. The Mosier well upon which plaintiff James O. Maness, Jr., drank some of his water;

4. The Brooks well from which plaintiff Curry A. Ivy drank “a whole lot of water” (Tr. 997) and plaintiff James E. Wilbanks also drank (Tr. 2245-46); and

5. The Tavern well from which plaintiff James E. Wilbanks and his family and plaintiff Curry A. Ivy (Tr. 997) drank water for many years.

15. Most of the five flagship plaintiffs live or once lived near the area of the dump on the north-northwest side of the farm. For the convenience of the reader, the Court finds that the following map illustrates, in general, the area and wells at issue.

16. Evidence was also received relevant to the issues concerning punitive damages and future health monitoring of all individuals in the class and their offspring exposed to the chemicals.

17. As to these flagship plaintiffs (excepting James Wilbanks), Yelsicol has

never

alleged nor claimed that they were not exposed to the chemicals hauled to or emanating from the farm dump. In fact, all five were exposed and over a lengthy period of time. Presumably therefore, defendant’s counsel’s observations are apposite namely:

... Velsicol originally and at the present time is not taking the position that carbon tetrachloride and chloroform did not trespass upon certain of the plaintiffs.

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We think there are fifteen or twenty people who are involved in that trespass who are still in court, and, candidly, the primary thrust, if I can use state of the art — we have used it, and I am not sure we have defined it yet, but we will attempt to do that this morning — the primary thrust of Velsicol’s presentation of that, of course, goes to good faith and punitive damages as opposed to a complete defense or defense to the trespass of these fifteen or twenty people who have actually been affected by the landfill that are still in court. (Tr. 4705-06).

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B. Defendant Velsicol (sometimes “defendant”)

18. Velsicol Chemical Corporation, defendant in this action, is a corporation organized under the laws of the State of Delaware. It is wholly owned by Northwest Industries (Tr. 3670) and has its principal place of business in Chicago, Illinois. (Ans. para. 2).

1.

Velsicol’s Chicago Employees

19. Mr. Howard H. Beasley, is now Vice-Chairman of Northwest Industries. In 1978, Mr. Beasley was working for Ben Heineman, Chairman of the Board of Northwest Industries. Mr. Beasley “was directed to come to Velsicol as vice-chairman of the board, responsible for the environmental affairs of Velsicol, in about 1978. I believe it was at Mr. Heineman’s direction that Mr. Beasley came to Velsicol.” (Tr. 4189) In 1980 he became President of Velsicol before returning to Northwest Industries. (Ex. 320).

20. Mr. John M. Rademacher, Vice-President of Environmental Health and Regulatory Affairs for Velsicol since November 14, 1979. (Tr. 4251). Although he claimed that he had been “Regional Administrator for Region VII, Kansas City, MO, both for EPA and its predecessor agency, the Federal Water Quality Administration” (Ex. 312), he admitted that he had never been so. He was rather an “interim regional coordinator” during the short period of time after the EPA was created and before appointments could be made by the newly appointed Administrator William D. Ruckelshaus. (Tr. 4331-33).

21. Mr. Eugene J. Nesselson, the corporate environmental manager for Velsicol during the period of time from 1964 through 1971. (Tr. 365). He visited Memphis and the dump from time to time (Tr. 365; 3723). He was supposedly retired from Velsicol at the time of trial, and no attempt was made by Velsicol to call him as a witness nor explain his absence. He was the primary individual to whom Mr. William Anthony, the Memphis plant manager, reported in the purchase and operation of the farm dump. Moreover, he was the individual who made or relayed the 1966 Velsicol decision to the Memphis employees that Velsicol would not pay to drill a well at the farm to monitor the local water aquifer. (Ex. 9)

22. Mr. Neil R. Mitchell, Vice President and General Counsel for Velsicol prior to 1964 and until December 1, 1982. He was indicted along with five other Velsicol employees and Velsicol itself for having made false statements to EPA concerning adverse health effects arising from the pesticides heptachlor and chlordane, conspiracy to make those false statements and violations of the mail fraud statute. In re

November 1979, Grand Jury

616 F.2d 1021 (7th Cir., 1980). That indictment was quashed for prosecutorial misconduct before the grand jury.

U.S. v. Gold

470 F.Supp. 1336 (N.D., Ill., 1979). A plea to a lesser crime was accepted by Velsicol and an individual defendant in settlement.

23. Mr. C.L.

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