Petition for Writ of Certiorari — Mead ex rel. Mead v. United States

7,

e \ 4 ipreme Ci a

85-424 Y | ‘r LE D

an | AUG 1 31985

JOSEP F-SPANIAQL, gR.

CLERK.

In the \

Supreme Court of the Gnited States

October Term, 1985

JONATHAN D. MEAD, a minor by

WILKIN MEAD, JR., his father

and next friend,

Peiitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

EDWARD J. KIONKA

Winters & Garrison

111 West Main Street

P.O. Box 700

Marion, IL 62959

(618) 997-5611

Attorney for Petitioner

August 1, 1985

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JONATHAN D. MEAD, a minor by

WILKIN MEAD, JR., his father

and next friend,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_ The petitioner JONATHAN D. MEAD, a

minor by WILKIN MEAD, JR., his father and

next friend, respectfully prays that a

writ of certiorari issue to review the

judgment and opinion of the United States

Court of Appeals for the Seventh Circuit

entered in this proceeding on May 3, 1985.

whe

QUESTION PRESENTED

The sole issue presented for review

is whether the district court erred in |

restricting plaintiff's direct examination

of his key expert witness, Dr. John

Davies, and in substituting Dr. Davies'

deposition for his available in-court

testimony.

TABLE OF CONTENTS

QUESTION PRESENTED. . .. «© © ee ee 2

OPINION BELOW . .... +c se ee © e « 4

JURISDICTIONAL GROUNDS. .....+e..s.. 4

STATUTES OR RULES INVOLVED. ...... 4

STATEMENT OF THE CASE ....-e« «e+e e 9

THE QUESTION IS SUBSTANTIAL ...... 9

A. The District Court's Ruling

Directly Contravenes This Court's

Mandate In Federal Rule of Civil

Procedure 4@3(@). « «.s 6+ se eses ®

B. The Ruling of the Seventh Circuit

Court of Appeals Creates a Conflict

Between the Circuits. ....... 14

C. The Importence of the Question. 22

CONCLUSION. . * - . e * e a e . ° ° °o a 25

APPENDIX:

Opinion of the United States Court of

Appeals, Seventh Circuit. . . . Appendix 1

District Court's Findings of Fact and

Conclusions of Law. ... . . . Appendix 7

District Court's Oral Findings.Appendix 17

TABLE OF AUTHORITIES

Statutes or Rules Involved

Federal Rule of Civil Proc. 43(a) ... 9

Federal Rule of Civil Proc. 32(a)(3) 11-12

Cases

Frechette v. Welch, 621 F.2d ll

re en -. « - 2 = «© « s-e «6 ow ow

United States v. International

Bus. Mach. Corp., 90 F.R.D.

eee See, EO ola ale ko Se ew tw ct IB

Arnstein v. Porter, 154 F.2d

ee PE eg es eg eg gt gf cue AS

Salsman v. Witt, 466 F.2d 76

(10th cae. 1972). . . e\ e e * + . 7 ” « 21

Other Authorities

4A J. Moore, Moore's Federal Practice,

qT 32.05 (2a ed. 1984) ° » + ° . e ° 12-13

OPINION BELOW

The opinion of the United States

Court of Appeals for the Seventh Circuit,

which appears beginning at Appendix l, was

an unpublished order. The district court

did not file or publish any opinion; its

findings of fact and conclusions of law do

not refer to the issue involved in this

appeal.

JURISDICTIONAL GROUNDS

The judgment of the Court of Appeals

for the Seventh Circuit was entered on May

3, 1985. This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTES OR RULES INVOLVED

Federal Rule of Civil Procedure 43(a):

(a) Form and Admissibility. In all

trials the testimony of witnesses shall be

taken orally in open court, unless other-

wise provided by an Act of Congress or by

these rules, the Federal Rules of Evi-

dence, or other rules adopted by the

Supreme Court.

Federal Rule of Civil Procedure 32(a)(3):

(e) The deposition of a witness, whether

or not a party, may be used by any party

for any purpose if the court finds: (A)

that the witness is dead; or (B) that the

witness is at a greater distance than 100

miles from the place of trial or hearing,

or is out of the United States, unless it

appears that the absence of the witness

was procured by the party offering the

deposition; or (C) that the witness is

unable to attend or testify because of

age, illness, infirmity, or imprisonment;

or (D) that the party offering the depo-

Sition has been unable to procure the

attendance of the witness by subpoena; or

(E) upon application and notice, that

such exceptional circumstances exist as to

make it desirable, in the interest of

justice and with due regard to the impor-

tance of presenting the testimony of wit-

nesses orally in open court, to allow the

deposition to be used.

STATEMENT OF THE CASE

This is a tort action brought under

the Federal Tort Claims Act, 28 U.S.C. §

1291, et seg., in the United States Dis-

trict Court for the Southern District of

Illinois. Most of the facts are not dis-

puted, and were found in plaintiff's favor

in the district court. In August of 1978,

plaintiff, then an infant of one year,

resided with his adoptive parents in

government housing at Scott Air Force Base

near Belleville, Illinois. Just prior to

the Mead's occupancy, the government

treated the premises with a termite

poison containing a chemical called

chlordane. Plaintiff claimed that the

government was guilty of extreme and

outrageous conduct in that it knew of the

danger to which it exposed plaintiff and

his family but allowed them to reside in

the treated apartment and did not notify

them of the danger. Plaintiff alleged

that, as a result of his exposure to the

chlordane, he sustained permanent

debilitating injuries, as well as pain

and suffering and emotional distress.

At trial, plaintiff called as his

principal expert witness Dr. John Davies.

Plaintiff had taken the deposition of Dr.

Davies prior to trial, in case Dr. Davies

(a Florida resident) was unavailable at

the time of trial. Dr. Davies’ deposi-

tion, along with all other depositions,

had been supplied prior to trial to Judge

Beatty at the judge's request, in order

that he could familiarize himself with the

case. During plaintiff's examination of

Dr. Davies at triai, plaintiff sought to

question him in detail concerning the key

elements of his claim that the toxic

chlordane was the cause of plaintiff's

injuries. However, the district court

sustained the government's objections to

Dr. Davies' testimony on the ground that

the matters to which he sought to testify

were already contained in his deposition.

The court ruled that Dr. Davies would not

be allowed to testify to any matter

covered in his deposition. Plaintiff made

an offer of proof as to what Dr. Davies'

testimony at trial would have been. The

offer of proof was denied.

At the conclusion of the trial, Judge

Beatty found that the government was guil-

ty of the negligence charged in the com-

plaint and that plaintiff had been exposed

to an excessive amount of chlordane.

However, Judge Beatty entered judgment for

the defendant and against plaintiff on the

ground that plaintiff had not proved that

the chlordane had caused his injuries.

Judgment was entered March 15, 1984, and

plaintiff€'s post-trial motion was denied

on April 27, 1984.

Plaintiff appealed to the United

States Court o: Appeals for the Seventh

Circuit on the sole issue of whether the

trial court had erred in refusing to hear

Dr. Davies’ oral testimony regarding mat-

ters covered in his deposition. The

Seventh Circuit accepted defendant's rep-

resentation that there had been a pre-

trial agreement between counsel to the

effect that, in exchange for defendant's

agreement to waive all Rule 26(b)(4) ob-

jections to the Davies deposition, plain-

tiff would submit the deposition as evi-

dence in lieu of Dr. Davies’ live testi-

mony. This alleged agreement is not a

part of the record in this case, and was

described for the first time in the gov-

ernment's brief on appeal and in oral

argument before the court of appeals.

Counsel for plaintiff, in his reply brief

and also in oral argument, vigorously

denied that the alleged agreement was

made. The court of appeals, in its unpub-

lished order, appears to have accepted the

government's assertion dehors the record,

and concluded that plaintiff suffered no

prejudice from the trial court's ruling on

the deposition. Citing the district

court's broad discretion in admitting and

excluding evidence, the court of appeals

affirmed the district court's judgment for

defendant.

THE QUESTION IS SUBSTANTIAL

A. The District Court's Ruling

Directly Contravenes This Court's

Mandate In Federal Rule of Civil

Procedure 43(a).

The sole issue on appeal is whether

the trial court improperly refused to

admit the live testimony of Dr. Davies

regarding matters covered in his deposi-

tion. Federal Rule of Civil Procedure

43(a) expresses this Court's strong pre-

ference for oral testimony, in providing

in “all trials the testimony of witnesses

shall be taken orally in open court, un-

less otherwise provided" by rule or sta-

tute. Fed. R. Civ. P. 43(a) (emphasis

added). The decision of the district

court to bar the expert's live testimony

=304

as to those matters contained in his depo-

sition is in direct contravention of the

clear mandate of Rule 43.

This policy is so strong that, ordi-

narily, even the express agreement of the

parties is not permitted to override it.

Thus, in the instant case, even if there

had been an agreement as alleged by the

government, the district court was still

required, absent circumstances not present

here, to hear the oral testimony of Dr.

Davies.

There is o discretion in this mat-

ter. Testimony must be taken in open

court unless the provisions of some other

statute or rule allow otherwise. Here,

the only possible statute or rule is

Federal Rule of Civil Procedure 32(a)(3),

which provides for the use of depositions

where the witness is dead, farther than

100 miles from the place of trial or hear-

-ll-

ing, or is unable to attend, where the

party offering the deposition cannot sub-

poena the witness, or

where such exceptional circumstances

exist as to make it desirable, in the

interest of justice and with due

regard to the importance of present-

ing the testimony of witnesses orally

in open court, ....

Fed. R. Civ. P. 32(a)(3) (emphasis added).

Because Dr. Davies, in fact, did appear at

trial, it cannot be argued that any of the

provisions, other than the last, allowing

use of depositions as evidence applied in

this case. In discussing the meaning of

this final provision, Moore discussed the

legislative history of the rule, and con-

cluded that the strong policy preference

for oral testimony would extend even to

situations where the parties have agreed

to substitute depositional evidence for

live testimony.

In the Advisory Committee's Prelimina-

ry Draft there was a provision that a

«12<

deposition could be used for any pur-

pose at the trial "if the parties

affected thereby consent thereto with

the approval of court." This provi-

sion was dropped, and the present pro-

vision substituted, apparently because

it was feared that the court would

grant its approval whenever the par-

ties consented to the use of deposi-

tions, and thereby to that extent

nullify the salutary rule that testi-

mony of witnesses shall be taken oral-

ly in open court.

4A J. Moore, Moore's Federal Practice,

{@ 32.05 at pp. 32-30, 32-31 (2a ed. 1984)

(emphasis added). Thus, even if (as the

government claims but plaintiff denies)

there was some pre-trial agreement regard-

ing the use of Dr. Davies‘ deposition, it

would have been unavailing under the cir-

cumstances of this case, where Dr. Davies

appeared at trial and testified to some

matters. The district court would have

been cound to honor the policy in favor of

hearing live testimony where available.

The court of appeals erred in finding that

the restriction of Dr. Davies’ testimony at

1.9

trial was a matter within the district

court's discretion.

B. The Ruling of the Seventh Circuit

Creates a Conflict Between the Circuits.

The Seventh Circuit's approval of the

use of depositional testimony when the

deponent is available at trial and when

the party offering the testimony expresses

an unwillingness to allow the deposition

to take the place of the live testimony

conflicts with rulings of several other

circuit courts of appeals. And at least

One other circuit court of appeals has

expressly held that, even where the par-

ties have stipulated to the use of deposi-

tions where the deponent is available at

the time of trial, the depositions are

inadmissible, and live testimony must be

allowed instead.

First Circuit. In Frechette v.

Welch, 621 F.2d 11 (lst Cir. 1980), the

o}4-

parties stipulated prior to trial that a

videotaped deposition of one of the expert

witnesses would be admissible at trial if

the conditions of the New Hampshire sta-

tute allowing the use of depositions were

met. The state statute provided that all

depositions were admissible as evidence,

unless the objecting party procured the

deponent to attend the trial. The First

Circuit held that the parties' stipulation

did not allow them to circumvent the

Federal Rules of Civil- Procedure and the

clear mandate that live testimony was to

be heard wherever possible. Since the

defendant had failed to prove that any of

the conditions for the use of depositions

contained in Rule 32(a)(3) existed, the

district court's allowance of the use of

depositions as evidence was erroneous.

The court further found that the stipula-

tion, contained verbatim in the record,

~}S~

was insufficiently explicit to constitute

a waiver of plaintiffs' federal rights

under Rule 32. The First Circuit deemed

the signs to present live testimony so

important that it could not be found to

have been waived in the absence of lan-

guage explicitly proclaiming the party's

intention to waive that right.

In the case at bar, the alleged stip-

ulation cannot be deemed sufficiently

explicit to constitute a waiver of plain-

tiff's right to present live testimony

where the witness is available, and, in

fact, does testify at trial. Here, the

conditions of the agreement, if indeed

such an agreement was ever reached, do not

appear anywhere in the record. it is only

clear that the government agreed at some

point prior to trial to waive some of its

objections to Dr. Davies' deposition.

Plaintiff argued that the government

-16-

agreed to waive all objections; the gov-

ernment countered that it had agreed to

waive only its Rule 26(b)(4) objections.

No where in the record does it appear

that, in exchange for this waiver, plain-

tiff agreed to submit the deposition in

lieu of Dr. Davies' live testimony.

Plaintiff's counsel admitted that

discussions concerning defendant's objec-

tions to the deposition had been held, but

explained that no agreement had been

reached. In his reply brief and at oral

at oral argument in the court of appeals

in response to defendant's allegations in

its answering brief, counsel denied having

agreed to this waiver of plaintiff's right

to present direct testimony. However,

despite the absence of any terms of this

alleged agreement in the record, and de-

spite plaintiff's counsel's repeated as-

surances that no such agreement had been

-17-

reached, the court of appeals found that

plaintiff had waived his Rule 43 right to

present live testimony. This conclusion

cannot be reconciled with the the law as

expressed by the First Circuit in

Frechette. In order to Find a waiver of

plaintiff's federal rights to present live

testimony, the court of appeals would have

to have found an express agreement clearly

stating plaintiff's intention to relin-

quish that right. See also, United States

v. International Bus. Mach. Corp., 90

F.R.D. 377 (S.D.N.Y. 1981) (where, al-

though the stipulation to permit use of

depositions was part of the record, the

court refused to find that plaintiff had

waived its right to present live testimo-

ny, where deponents, in fact, testificd at

trial). The facts in this case do not

support a finding that plaintiff clearly

intended to waive this right.

-18-

Second Circuit. In Arnstein v.

Porter, 154 F.2d 464 (2d Cir. 1946), the

Second Circuit quoted with approval

Moore's discussion of the legislative

history of the rule pertaining to deposi-

tional evidence discussed in our preceding

section. Moore maintained that, even if

the parties stipulated to the use of depo-

Sitions, the court could not allow the

substitution of depositional evidence for

live testimony in the absence of one of

the circumstances listed in the rule al-

lowing such use of depositions. In

Arnstein, the court held that even if

defendant sought to substitute his own

deposition for his testimony on the stand

at trial, he could not do so under the

rule. 154 F.2d at 472. As in our case,

the first provisions of the rule would not

permit the substitution, and no argument

under the final provision, for "exception-

-19-

al circumstances," had been advanced. The

court viewed the suggestion that the case

be tried upon depositions and affidavits,

rather than live testimony, as an attempt

to return to the equity practice that

existed in federal courts prior to 1912.

It rejected the possibility that the rule

allowing the use of depositions where the

deponent is unavailable or where "excep-

tional circumstances" exist was intended

to permit this type of "trial by affida-

vits,“* if either party objects. 154 F.2d

at 471.

Here, there is insufficient evidence

in the record to support defendant's argu-

ment and the Seventh Circuit conclusion

that plaintiff had waived his right to

present live testimony through counsel's

stipulation to use Dr. Davies' deposition

in lieu of his live testimony. Moreover,

plaintiff strenuously objected to the

-20-

district court's restriction of his right

to present live testimony on the causation

issue. Under these facts, the decision of

the Seventh Circuit approving the district

court's restriction of plaintiff's exami-

nation of Dr. Davies is contrary to the

law as expressed by the Second Circuit in

Arnstein.

Tenth Circuit. In Salsman v. Witt,

466 F.2d 76 (10th Cir. 1°72:, the Tenth

Circuit stated, in dicta, that even if the

depositions in question had been offered

into evidence (which they were not), they

would not have been admissible substitu-

tions for the deponents' live testimony,

because none of the exceptions listed in

Rule 32(a)(3) was met. In Salsman, the

deponents testified briefly at trial, and

it was obvious that the district court had

supplemented their testimony with informa-

tion taken from their depositions in

=)

reaching its judgment on the case. The

Tenth Circuit held that, because the depo-

sitions would not have been admissible

under Rule 32, the trial court's reliance

upon them constituted reversible error.

Here, also, none of the exceptions to

the use of live testimony existed. The

alleged ‘agreement to substitute Dr.

Davies' deposition for live testimony on

the issues covered in it was, if it exist-

ed at all, insufficiently explicit to

constitute a waiver of plaintiff's right

to present live testimony. Under these

circumstances, the Seventh Circuit's rul-

ing is contrary to the law as expressed by

the Tenth Circuit in Salsman.

C. The Importance of the Question.

This case presents an issue of real

importance in the administration of civil

trials in federal courts. One of the most

fundamental rights of American citizens --

=33<

embodied in the due process clause of the

Constitution and of all state constitu-

tions -- is the right to have a full and

fair hearing of one's justiciable claim or

grievance. The confrontation clause,

although not applicable in civil cases

such as this, reflects the fundamental

value of in-court testimony, where the

witness's demeanor bears strongly on the

credibility of his testimony. Moreover,

in the instant case, it is seriously

unfair to deny the claim of this injured

minor child without giving him the

opportunity to present his evidence.

Plaintiff's counsel had no reason to

suspect that his case would be frozen as

of the time of his expert's deposition.

He had no notice that the expert's live

testimony would be rejected. If he had,

perhaps he would have taken a different

approach with respect to the deposition.

Rule 43(a) is a rule of this Court.

Its terms are clear and unambiguous. If a

district court ignores it, is that not a

direct abuse of the authority of this

Court? If Rule 43(a) can be so easily

ignored, why not the other rules as well?

We respectfully urge that so patent a

violation of so important a principle --

the right to in-court testimony -- should

not be allowed. Moreover, as we have

shown, the circuit court of appeal's

decision is in direct conflict with the

holdings of other courts of appeals on the

same issue. Thus, this case involves both

the rights of this plaintiff and other

persons similarly situated, and the

general public interest in the uniformity

of interpretation so necessary in the

administration of the Federal Rules of

Civil Procedure.

=2i~

CONCLUSION

For the foregoing reasons, petitioner

JONATHAN D. MEAD, a minor, by WILKIN MEAD,

JR., his father and next friend, respect-

fully prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Seventh Circuit entered in this pro-

ceeding on May 3, 1985.

Respectfully submitted,

EDWARD J. KIONKA

Winters & Garrison

111 West Main Street

P. O. Box 700

Marion, IL 62959

(618) 997-5611

Attorney for Petitioner

«33~

APPENDIX

OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Unpublished Order

No. 84-1911

JONATHAN D. MEAD, a minor by

WILKIN MEAD, JR., his father and

next friend,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellee.

May 3, 1985

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. WILLIAM J. JAMESON, Sr. Dist. Judge

| ORDER

In an action biouyght under the Feder-

al Tort Claims Act, 28 U.S.C. § 1291 et

seg. (19 ), plaintiff alleged that the

government negligently applied an insecti-

APPENDIX 1

cide containing clordane [sic] to the

military base apartment assigned to plain-

tiff's family and that as a result of

exposure to the chlordane plaintiff sus-

tained permanent brain damage. Plaintiff

also sued for pain and suffering and emo-

tional distress resulting from the expo-

sure and injury. After a bench trial the

district court found that the government

had negligently applied the insecticide

and that plaintiff had been exposed to an

excessive amount of chlordane, but that

plaintiff had not proved that the chlor-

dane had caused his injuries, and there-

fore the court entered judgment for the

defendant. The sole issue on appeal is

whether the district court erred by re-

stricting plaintiff's direct examination

of one of his expert witnesses, Dr. John

Davies. The trial court did not allow Dr.

Davies to testify as to matters contained

APPENDIX 2

LL

in a deposition he had given which had

already been admitted into evidence. We

affirm the judgment of the district court.

The underlying facts of this lawsuit

are not relevant to this appeal; there-

fore, we will discuss only the salient

circumstances surrounding the ruling which

plaintiff contests. Prior to trial the

district judge requested each party to

submit all depositions which they intended

to introduce at trial. Plaintiff submit-

ted the deposition of Dr. John Davies to

the court and later informed defendant and

the court that he intended to introduce it

at trial as an evidentiary deposition.

Apparencly concerned about objections to

the deposition made by defendant at the

time it was taken, plaintiff obtained an

oral agreement from defendant that defen-

dant would waive these objections if the

deposition would be admitted into evidence

APPENDIX 3

in lieu of Dr. Davies's live testimony.

Plaintiff subsequently submitted the depo-

sition to the court and it was admitted

into evidence before plaintiff called his

first witness.

During the trial, plaintiff called

Dr. Davies to the witness stand in order

to rebut the testimony of one of defen-

dant's expert witnesses. Once on the

stand, however, plaintiff began asking Dr.

Davies questions which were contained in

his deposition, the answers to which were

therefore already admitted into evidence.

The court sustained defendant's objection

that this testimony was cumulative.

Plaintiff now claims that this ruling

amounted to reversible error.

A trial court's evidentiary rulings

will not be reversed on appeal absent a

clear showing of abuse of discretion.

United States v. Cannon, 715 F.2d 1228,

APPENDIX 4

re —E

1232 (7th Cir. 1983). Rule 403 of the

Federal Rules of Evidence permits the

exclusion of relevant evidence if that

evidence is merely cumulative. Under Rule

403 "{t]he District Court retains consid-

erable latitude even with admittedly rele-

vant evidence in rejecting that which is

cumulative." Hamling v. United States,

418 U.S. 87, 127 (1974). We find that the

trial judge's ruling which plaintiff now

challenges was not an abuse of cne trial

judge's considerable discretion.

As stated above, the testimony which

the trial judge excluded was merely a

recitation of statements already admitted

into evidence through plaintiff's deposi-

tion of Dr. Davies. It is not apparent,

as plaintiff now asserts, that plaintiff

suffered any prejudice simply because the

court considered Dr. Davies's statements

in written rather than oral form. More-

APPENDIX 5

over, plaintiff tendered the deposition as

evidence with the understanding that it

would be used instead of live testimony

from Dr. Davies as part of an agreement

with the defendant of which the trial

judge was apprised.

Under the agreement, defendant waived

its objections to the deposition and Dr.

Davies was not to be called as a witness

to testify as to matters contained there-

in. Thus, it was plaintiff's trial strat-

egy that the court consider this evidence

in the form of a deposition rather than in

the form of testifying from the witness

stand. For these reasons, the judgment of

the district court is affirmed.

APPENDIX 6

No. 80-5270

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JONATHAN D. MEAD, a minor by WILKIN

MEAD, JR., his father and next friend,

JOHNNIE RUTH MEAD, and WILKIN MEAD, JR.,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

March 15, 1984

I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came on for trial before

the Honorable William Beatty, District

Judge, presiding, on a three count, third

amended complaint. The first count of

said complaint alleges that as a result of

the negligent and outrageous acts on the

part of the United States of America in

exposing the plaintiffs to chlordane, the

APPENDIX 7

plaintiff, Johnathan [sic] D. Mead, is

certain to contract cancer; has suffered

severe and permanent injury and damage to

his entire body and to his central nervous

system, and that he will in the future

have psychic damage and mental and emo-

tional anguish and distress as a result of

necessarily observing the physical and

mental sufferings of his mother, Johnnie

Ruth Mead, and his father, Wilken Mead,

Jr., as set out in Counts II and III of

plaintiff's complaint. “he second count

of said complaint alleges that as a result

of the negligent and outrageous acts on

the part of the United States of America

in exposing the plaintiffs to chlordane,

the plaintiff Wilkin Mead, Jr., has and

will in the future have psychic damage,

mental and emotional anguish and distress

as a result of observing the physical and

mental sufferings of his son, Johnathan D.

APPENDIX 8

Mead, and his wife, Johnnie Ruth Mead.

The third count of said complaint alleges

that as a result of the negligent and

outrageous acts on the part of the United

States of America in exposing the plain-

tiffs to chlordane, the plaintiff, Johnnie

Ruth Mead, was rendered lame and disor-

dered, suffered and sustained severe and

permanent injury and damage to her entire

body and to her central nervous system,

that she is reasonably certain to contract

cancer and, that she has and will in the

Future suffer great psychic pain and an-

guish and distress of her mind and emo-

tional system as a result of necessarily

observing the physical and mental suffer-

ing of her son, Johnathan D. Mead, and her

husband, Wilkin Mead, Jr., as set forth in

Counts I and II of plaintiffs' complaint.

This suit is brought against the United

States of America for alleged negligence

APPENDIX 9

by the United States Department of the Air

Force in applying a termite poison, chlor-

dane, at air force housing in which the

plaintiffs resided.

On August 24, 1978, unit 5543 F in

Wherry Housing was treated with chlordane

to control termites. Wherry Housing units

are a part of the base housing at Scott

Air Force Base. Those housing units were

constructed on concrete slabs and the

heating unit in those housing units at all

times referred to herein consisted of a

downfloor furnace and subslab ductwork.

The ductwork in Unit 5543 F was encased in

concrete. Unit 5543 F was treated with

chlordane by drilling holes through the

concrete slab and injecting chlordane into

those holes and thereafter placing plugs

into those holes. Those holes should have

been drilled into the subsoil so that the

chlordane would have been injected into the

APPENDIX 10

subsoil. The Court finds however that the

chlordane did not infiltrate either the

heating duct or the cold air return ducts

after injection into the subsoil, but was

in fact injected directly into the heating

ducts due to the failure of the applica-

tors, the people applying chlordane, to

drill in the proper places.

The Court further finds that apart

from negligence in treating the unit the

Government through its various agencies

was aware that questions had been raised

about the dangers of exposure to chlor-

dane. As early as the first or second

week in September, 1978, officials at

Scott Air Force Base became aware of odors

at the housing unit. Officials at Scott

Air Force Base were negligent in not re-

moving the plaintiffs from the unit as

soon as they were advised of the fact that

there was potential chlordane exposure

APPENDIX 11

there.

Having found negligence the Court has

considered the following findings in de-

termining whether or not that negligence

caused the injury complained of.

On August 25, 1978, when Johnathan

Mead moved into unit 5543 F in Wherry

Housing, he appeared to be in good health.

The day before, August 24, 1978, that unit

had been treated with chlordane.

The Court, taking into consideration

its common experience, concludes that

there would have been little, if any, need

to operate the heating system during that

month so that although there was chlordane

exposure beginning on August 25, 1978,

that exposure would have been relatively

limited. However, on or about September

30, 1978, Johnathan Mead developed, in

order, an inflammatory tonsillitis condi-

tion, 105 fever, and the first reported

APPENDIX 12

seizure. The fever was reduced through

usual methods and Johnathan Mead was re-

turned to anit 5543 F.

The Court, again taking into consid-

eration its common experience, concludes

that during October, November and December

the exposure to chlordane would not only

have continued but would have been sub-

stantially elevated. This conclusion is

based upon the assumption that plaintiffs’

theory about the chlordane being in the

heating ducts is correct and that the

chlordane was coming out of the heat

ducts. During October, November and

December the heating system would be oper-

ating more and the amount of chlordane

blown into the air and from the air fall-

ing on to the carpets, and getting on the

toys, would increase. During those three

months, however, Johnathan Mead was per-

fectly normal, no health problems were

APPENDIX 13

eh ee

reported and he was apparently in good

health.

On or about January 7, 1979, Johna-

than Mead again had a fever followed by

flu-like problems other than what might be

caused by chlordane. The child's mother

had a flu-like illness at approximately

the same time,

On or about January 10, 1979, had

staring spells lasting from 15-20 seconds

with eyelid blinking. On or about January

12, 1979, Johnathan Mead had a seizure

which left his brain damaged. Johnathan

Mead was then taken to Wilford Hall Medi-

cal Center and the diagnosis was a seizure

disorder probably due to encephalitis and

a post infectious encephalopathy. Johna-

than Mead remained at Wilford Hall Medical

Center for about three weeks and was re-

turned home to unit 5543 F and the expo-

sure to chlordane continued until on or

APPENDIX 14

about April 5, 1979. During the time

period between the time Johnathan Mead

returned from Wilford Hall Medical Center

and leaving unit 5543 F he had no

seizures. Approximately six months after

being removed from unit 5543 F, and while

he is still taking a drug to control

seizures, Johnathan Mead had still another

seizure.

The Court in considering the afore-

mentioned time sequences, the fever blis-

ter type sores that Johnathan Mead had and

the high fever finds that Dr. Ferrendel-

li's testimony and diagnosis of post-

infectious encephalopathy is very reason-

able and the most logical and preferential

diagnosis of Johnathan Mead's illness and

residual brain damage. This conclusion is

based also upon the fact that the plain-

tiffs' expert concedes that there is no-

thing in the medical literature that shows

APPENDIX 15

a residual central nervous system chronic

or acute effect from exposure to chlordane

at the levels Johnathan Mead was exposed to

and the reported cases of acute exposure

do not support plaintiffs' position be-

cause there was no permanent damage to the

central nervous system.

The Court finds that there is no

evidence in the record from which it can

find that it is more probably true than

not true that chlordane caused Johnathan

Mead's brain damage nor is there any evi-

dence in the record to support the remain-

ing allegations of plaintiffs' complaint

that chlordane caused injury or damage to

Wilkin Mead, Jr. or Johnnie Ruth Mead as

alleged.

WHEREFORE, for the foregoing reasons

the Court rules in favor of the defendant

and against the plaintiff and judgment

will be entered accordingly.

APPENDIX 16

CC

II. TRIAL COURT'S ORAL FINDINGS

THE COURT: The Court in trying a

bench trial is bound by the same standards

as would a jury be under similar circum-

stances. The Court must take heed of the

same instructions that would be given to a

jury in a similar case, that is to say

that the Court must follow the same law

that the jury follows, which means we must

resolve the question of negligence.

I find from the evidence that there

is ample material to put the Government on

notice of, number one, the problems in

treating slab dwellings with chlordane.

The Government, in fact, knew of this as

is evidenced by certain exhibits that the

plaintiff put in evidence.

Counsel for the Government makes much

of the fact that the heating ducts in this

particular dwelling were encased in con-

crete. All that means is that to me at

APPENDIX 17

ETE

pene

DR it

least, is that the chlordane did not infil-

trate either the heating duct or the cold

air return ducts after injection into the

sub-soil but was in fact injected directly

into the heating ducts due to the failure

of the applicators, the people applying

this substance drilling in the right

places. It's clear that the substance was

injected through holes that were drilled

in the concrete floor. Tho:;:e holes should

have been drilled into the sub-soil so

that the material would have been injected

in the sub-soil. If the heating ducts

were in fact encased in concrete, it would

not have infiltrated. It's obvious to me

that in drilling these holes, at least one

or more places, they drilled into the

heating ducts, the chemical was injected

into the heating ducts, and from there it

was distributed into the house environ-

ment. Apart from the negligence, and I

APPENDIX 18

find there was negligence in treating the

houses, but apart from that, there was

ample material available, the Government

through its various agencies knew that

there was certainly some question about

the dangers of exposure to chlordane.

As early as the first week or two in

September, the officials at Scott Field

knew that there was some problem with this

housing unit. They had reports of odors,

and I think that they were negligent in

not removing these people from the unit

immediately as 300n as they were advised

of the fact that there was a potential

chlordane exposure there.

Unfortunately, that's the easy part

of the case, but having found negligence

is not to say that that negligence caused

the injury complained of. I want to say

at the outset that in thirteen years of

trying cases I have never been confronted

APPENDIX 19

with more quote qualified medical testimo-

ny. Both Dr. Davies and Dr. Ferrendelli

were emanately well-qualified. I was

extremely impressed with their sincerity,

their honesty. They were not the ordinary

run of the mill professional witness that

we usually see in cases of this type, and

I am convinced that both of them were

absolutely sincere and objective in the

opinions and testimony that they gave.

In approaching the question of causa-

tion, we have to keep in mind as counsel

has recognized that the burden of proof is

on the plaintiff. The burden of proof is

to show that the cause for which he speaks

is more probably true than not true.

Dr. Horenstein, I think, can be sub-

stantially discounted as far as causation

is concerned, and I don't think that

plaintiff seriously contends that he adds

a great deal of weight to the case for

APPENDIX 20

causation. Dr. Horenstein, I think we can

assume that his opinion is based substan-

tially on the opinion of Dr. Davies, and I

think that the plaintiff's case has to

stand or fall with Dr. Davies, and I think

with Dr. Davies, the plaintiff makes,

certainly makes a prima facie case. Dr.

Davies clearly and unequivocally states

his opinion that the chlordane exposure

could or might have caused the condition

of illbeing that the plaintiff now com-

plains of. Later he made even a stronger

statement that he feels that this is of

the possible causes, that this is the most

probable in his opinion.

Dr. Ferrendelli is equally convinced

that the chlordane exposure did not cause

it and could not have caused it. Both

doctors concede that there is little, if

any, medical literature on the subject.

We have only three, maybe four reported

APPENDIX 21

cases. Dr. Davies concedes that there is

nothing in the medical literature to show

a residual central nervous system effect

from exposure to chlordane, either chroni-

cally or acutely.

The three or four reported cases of

acute exposure do not support the plain-

tiff's position in this case because there

was no permanent damage at least to the

central nervous system from the exposure.

In reading Dr. Davies' deposition, I

get the impression that without the supple-

mental statistics from Dr. Kutz, Dr.

Davies would have been hard put to con-

clude that this was caused by the chlor-

Ginn ney ae ine BN te cA cane

dane.

So what we get down to is that his

final opinion is almost entirely based

upon a supplemental figures from Dr. Kutz

which show that there is an abnormal con-

centration of chlordane in the fat biopsy

APPENDIX 22

aac

from this child, but even if we accept

that, even if we accept the reliability of

Dr. Kutz' later figures, even if we accept

the credibility of the sampling and all

those factors, we are still left with what

Dr. Davies concedes is a problem, We have

five or ten percent of the children, or

even as high as sixteen percent of the

children that have higher levels than this

child and we transpose that into the popu-

lation, we would have thousands of children

with seizures and brain damage.

On the other side, Dr. Ferrendelli

recognizes that there is no reported lit-

erature on it, he takes what appears to me

to be a more reasonable approach. There

is an obvious recognized causation, that

is post-infectious encephalopathy, and he

chooses that diagnosis.

Now apart from the medical cr scien-

tific evidence, I am impressed more by my

APPENDIX 23

a

own logical analysis of the chronology of

the events, and I think it is highly sig-

nificant. We have a child who on August

the 25th appeared to be in goou health.

He moved into a house which had the day

before been treated with chlordane. Keep

in mind that this is in September at Scott

Field and although there is no evidence

about what the weather was in 1978, '79,

the Court will take its common experience

and conclude that there would hve been

little, if any, need to operate the heat-

ing system during that month.

So, that although there probably

wasn't exposure to chlordane beginning on

August 25th, that exposure would, it seems

to me, have been relatively limited, and

yet on or about the 30th of September the

child developed in this order an inflamma-

tory tonsillitis condition, one hundred

and five fever, and the first reported

APPENDIX 24

seizure. The child was taken to the emer-

gency room, the fever was reduced with the

usual methods. He was returned to the

home. Now we're into October, November,

December.

Again drawing on my common exper-

ience, during those three months the expo-

sure would not only have continued, but

would have been substantially elevated

because this of course is assuming that

the plaintiffs' theory about cause of the

exposure is correct, but it was coming out

of the heating ducts and I think all the

evidence indicates that in these three

months the exposure is going to be ele-

vated because the heating system is going

to be operating, the amount of chlordane

blown into the air and from the air fall-

ing onto the carpets, getting onto the

toys. It is going to substantially in-

crease. But during those three months,

APPENDIX 25

the child is perfectly normal. There is

no report of problems. He is in good

health. It is not until the first week or

ten days of January that we again have an

incident, again, fever, a little question

about the child's condition, but we know

that the mother had a flu-like illness and

there is some suggestion that the child

had some problems at that time other than

what might be caused by the chlordane, but

it's preceded by the fever.

Then again we have a seizure and then

in a short period of time the final sei-

zure that sequence which left him brain

damaged.

Then he goes to Wilford Hall. He is

down there, I have forgotten how long, but

he's back in the home and the exposure

continues then until April.

Now during that time, there are no

seizures and even accepting counsel's

APPENDIX 26

theory that this could be because he is on

the phenobarbital, I think that is sort of

a neutral thing, but then I think what is

more significant is that he is removed

from the environment in April and six

months later, after he is presumably with-

drawn from the exposure for six months, he

has a final seizure, and he is still on

phenobarb, or some other agent that we can

control the seizures, whether is phenobar-

bital or Valporic Acid or whatever it is.

Just looking at that time sequence, it

seems very reasonble, and also taking into

account the fever blister type sores that

the baby had, the high fevers, it seems to

me that Dr. Ferrendelli's choice of post-

infectious encephalopathy is very reason-

able and the most logical diagnosis, pre-

ferential diagnosis. It may well be that

ten years down the road we may have docu-

mentation and reports that would support

APPENDIX 27

plaintiffs’ position in this case. We may

not have. We may have just the opposite.

Medical science may advance to this state

ten years from now where we can tell that

this wasn't chlordane and it wasn't post-

infectious encephalopathy, it was sugar or

chocolate or honey. The point I am making

is we don't know what caused it. There is

no evidence from the record from which I

can find that it is more probably true

than not true that the chlordane caused

it. It is not necessary for me to find

it, but I think that if I had to make a

finding as to what did cause it, it is

more probably true than not that it was

the result of either a post-infectious

allergic reaction, or an idiopathic sei-

zure. These are tough cases. I don't

know, I seem to have had several of these

cases with children, and I think we're all

sympathetic to the children's condition,

APPENDIX 28

——————

but I think we have to follow the law, so

for the reasons stated I find the issues

in favor of the defendant and against the

plaintiff.

Mr. Simpkins, you or Mr. Coleman will

prepare a suggested findings of fact and

conclusions of law and submit them to

counsel for the plaintiff for their ap-

proval as to form. That's all.

APPENDIX 29