Appendix VOL I — Schudel v. General Electric Co.

n \ PILED

No. 2 21 41 0 FEB 2 3 1998

ON GC- OFTHE CLERK

In The

Supreme Court of the United States

OCTOBER TERM, 1997

DAVID SCHUDEL; DANIEL GLASS; TIMOTHY SCHUDEL:

SANDRA SCHUDEL, husband and wife, and the marital community

composed thereof. KATHRENE RAE HOWELL: CRAIG A.

THOMPSON, DEBBIE GUARGANA (WILLIAMS), JOHN

HOPKINS; RUTH HOPKINS; husband and wife, and the marital

community composed thercof,

Plaintiffs

MERLIN E. CARLSON, JR.

Plaintiff-Petitioner

v.

GENERAL ELECTRIC COMPANY, a forcign corporation:

KAISER ALUMINUM AND CHEMICAL CORPORATION,

a foreign corporation,

Defendants-Respondents

On Petition for Writ Of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

APPENDIX VOLUME f

Marcia M. Meade

Attorney for Petitioner/Counsel of Record

DAWSON & MEADE

1300 W. Dean

Spokane, Washington 99201-2015

(509) 328-4266

APPENDICES

APPENDIX A

Schudcl. et al., v. General Electric and Kaiser

Aluminum and Chemical Corp. 120 F.3d 991}

(9"" Cir. 1997) (Opinion)

Schudel. ct al.. v. General Electric and Kaiser

Aluminum and Chemical Corp.. No. 92-00081, (E.D. Wash..

Nov. 25, 1994) (Order Re: Post-Trial Motions)

Schudel, et al.. v. General Electric and Kaiser

Aluminum and Chemical Corp.. No. 92-00081. (E.D. Wash

Nov. 25, 1994) (Order Re: Motions to Amend and Certify)

APPENDIX B

Schudel. ct al.. v. General Electric and Kaiser

Aluminum and Chemical Corp.. Nos. 95-35092, 95-35145

(9" Cir. 1995) (Order On Jurisdiction)

Schudel. ct al.. v. General Electric and Kaiser

Aluminum and Chemical Corp.. Nos. 95-35092. 95-35 145

(9" Cir. 1997) (Order Denying Rehearing)

APPENDIX C

Schudel, ct al.. v. Gencral Electric and Kaiser

Aluminum and Chemical Corp.. No. 92-00081. (E.D. Wash.

July 13. 1994) (Judgment in a Civil Case)...

Schudel, et al.. v. General Electric and Kaiser

Aluminum and Chemical Corp.. No. 92-00081. (E.D. Wash.

July 13, 1994) (Special Verdict Carlson)

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S0a

.. 58a

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APPENDIX D

U.S Constitution Seventh Amendment | 62a

US. Constitution Fifth Amendment 62a

US Constitution Article I] 62a

Fed R Civ P. &(a) 64a

Fed R_ Civ P. 49a) 64a

Fed. R Civ P. S0(a) (b) 1963 version 65a

Fed R-Ciwv P. 50(a)(b) 1991 version 66a

Fed R.Civ P. 50(aXb) 1995 version 67a

Fed R.Civ P. 59(d) 1966 version 68a

Fed. R.Civ.P. 59(d) 1995 version 69a

28 USC. § 2072 68a

Wash. Const. Art. | § 21 70a

Rev. Code Wash. 5.40.050 70a

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

__FOR THE NINTH CIRCUIT

DAVID SCHUDEL. ct al.

Plaintiffs,

and

No. 95-35092

DEBORAH GUARAGNA-WILLIAMS.

Plaintiff- Appellee, D.C. No.

CV-92-00081-F VS

GENERAL ELECTRIC CO.. a forcign

corporation: KAISER ALUMINUM

AND CHEMICAL CORPORATION. a

forcign corporation.

Defendanits- Appellants, |

DAVID SCHUDEL: DANIEL GLASS: |

MERLIN E. CARLSON: TIMOTHY |

SCHUDEL: SANDRA SCHUDEL.

husband and wife. and the marital

community composed thereof.

KATHRENE RAE HOWELL: CRAIG A D.C. No.

THOMPSON. JOHN HOPKINS: RUTH CV-92-00081-FVS

HOPKINS. husband and wife. and the

marital community composed thereof.

Plaintiffs-. Appellants, OPINION

No. 95-35145

GENERAL ELECTRIC CO.. a forcign

corporation. KAISER ALUMINUM

AND CHEMICAL CORPORATION. a

forcign corporation.

Defendants-. lppellees

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Appcals from the United States District Court

for the Eastern District of Washington

Fred Van Sickle, District Judge, Presiding

Argued and Submitted

October 8. 1996—Scattle. Washington

Filed July 23, 1997

Before. James R. Browning. Dorothy W. Nelson. and

Ferdinand F. Fernandez. Circuit Judges

Opinion by Judge Browning

SUMMARY

Civil Litigation and Procedure/Motions

The court of appeals dismissed appeals. vacated a

judgment. and reversed orders of the district court The court held

that in considering a Rule 50(b) post-verdict motion for judgment

notwithstanding the verdict (JNOV). a district court should not

ignore crroncously admitted evidence

Appellees David Schudel. Deborah Williams and others

sucd appellants General Electric Co. and Kaiser Aluminum and

Chemical Corp. for damages. alleging injurics from exposure to

toxic substances and loss of consortium.

At trial, the only evidence on causation on behalf of

appellants Daniel Glass. C raig Thompson. and David. Tim. and

Sandra Schudel (Schudel plaintiffs) was the testimony of Dr

Paula Lantsberger. She based her expert opinions on two theories:

specific condition causation and “whole person aggravation.~

In addition to Dr. Lantsberger. Drs. Morton and Goldstein

testificd on neurological symptom causation on behalf of

Williams. The district court approved their reliance on intervicw

data relating to the plaintiffs’ symptoms that was collected by

Diane Nebel while she was investigating an incident of

Legionnaire’s discase at Kaiscr’s facility

Drs. Goldstcin and Lantsberger testified that the Nebel

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data were the kind that toxicologists consider reliable and

regularly rely on. Dr. Morton testificd that Williams suffered

from brain damage that was “morc probably than not” caused by

cxposurc to solvents (TCA and Perc) that General Electric had

uscd to clean up toxic substances at Kaiser's facility.

Dr. Goldstein conceded that none of the organic solvents

involved in this case had been proven to be neurotonic. that it

would be improper to make inferences as to the toxicity of TCA _

and Perc based on the toxic nature of othcr solvents: and that

repeated exposure to organic solvents over a long period must be

documented to establish a causal rclationship. Two studics cited

by Dr. Goldstein (Altman and Kalifant studies) involved TCA and

Perc. The Altman study found no relationship between exposure

to Pere and the brain damage or loss of consciousness alleged by

the plaintiffs. The Kalifant study involved long-term. repetitive

exposure to TCA at high levels

A jury returned verdicts for the plaintiffs. On defense

motions for JNOV or a new trial. the district court affirmed the

verdict for Williams. but granted JNOV with respect to

respiratory injurics alleged by appellant Merlin Carlson. and as to

neurological injurics asserted by appellant Kathrene Froese. John

Hopkins. and Ruth Hopkins (Froese plaintiffs). The court vacated

the verdicts for them on the ground that they were “tainted” by

evidence of injurics as to which JNOV had been granted. and

ordered a new trial. Lastly. the court granted JNOV on all the

claims of the Schudel plaintiffs. In doing so. the court exercised

Dr. Lantsberger’s testimony relating the “whole person

aggravation theory. having concluded that it was inadmissible.

Both sides appealed

|1]| The court of appcals has jurisdiction to review final

judgments on entire claims. not on individual issues. An order

adjudicating only one issuc that is not determinative of an entire

claim is not appcealable. [2] Litigants who advance a single Iegal

theory of liability applied to onc sct of facts allege a single claim.

Carlson and Froese alleged a singlc claim of negligence. not

scparate claims for neurological injury and respiratory injurv.

The Hopkinscs alleged claims for negligence and loss of

consortium. not scparate claims for neurological injury and

respiratory injury as to cach claim.

[3] The district court granted JNOV as to issucs related

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to certain injuries allegedly suffered by the plaintiffs because of

the defendants negligence. The court of appcals had no

jurisdiction to review the district court's rulings on those issucs

because the claims for negligence and the derivative claims for

loss of consortium were not finally determined. The order

granting a new trial was also intcrlocutory and not immediately

appealable

|4] When deciding a JNOV motion, a trial court may not

ignore cvidence crroncously admitted at trial. Excluding evidence

after the verdict is unfair to a party who may have rclicd on the

determination that the evidence was inadmissible. |S] The record

should be taken as it existed when the trial closed

[6] The district court properly concluded that Dr.

Lantsberger s testimony based on the “whole person aggravation”

theory should have been excluded However. once the jurv

rendered its verdict based on the improperly admitted evidence, the

district court crred in excising that evidence when ruling on the

JNOV motion. Considering all the evidence. there was sufficient

evidence to support the verdict in favor of the Schudel plaintiffs

|7| Nonetheless. these verdicts could not stand. The

district court erred in denving the defendants’ motion for a new

trial. A new trial should be granted when the erroncous admission

of evidence affected the substantial rights of the partics. Dr

Lantsberger s testimony was the only evidence of causation: its

crroncous admission was undoubtedly prejudicial

[8] The trial yudge must determine that proposed

scicntific expert testimony will be both reliable and relevant. [9]

Scientific knowledge is reliable if it is grounded in the methods

and procedures of science and connotes more than subjective

belicf or unsupported speculation. In determining reliability. the

focus must be solcly on principles and methodology. not on the

conclusions that they generate.

[10] Evidence of scientific knowledge is relevant if the

rcasoning or methodology properly can be applied to the facts in

issuc. A court's determination of relevance must consider the

applicable substantive standard. Under Washington tort law. a

plaintiff must show that the act complained of “probably” or

“more likely than not” caused the subsequent disability.

|11] The Nebel data provided the basis for much of the

scicntific testimony presented by Williams’ experts. [12] The

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district court acted within its discretion in approving the usc of the

data by Williams® expert witnesses. Dr. Morton's testimony met

the relevance requirement. However, it did not mect the

requirement of reliability

[13] Dr. Morton's conclusions were based on

extrapolations from studics that involved solvents other than TCA

or Perc and examined long-term exposure at relatively low

concentrations. or short-term exposure at very high

concentrations. rather than short-term, modcrate-level exposure

sustained by Williams. Dr. Morton did not establish that it was

scientifically acceptable to draw gencral conclusions about the

neurotoxicity of TCA and Pere from studics of other chemicals

(14] The district court erroncously reasoned that because

there was evidence that acute exposure to TCA and Pere can

cause toxic encephalopathy. whether Williams exposure was

sufficient to cause her symptoms was a question for the jury

Williams’ exposure was neither long cnough nor intense cnough to

fall within the ranges described in the studics Dr. Morton relied

upon. Extrapolation was necessary to make the studics relevant.

and there was no showing that the necessary extrapolation was

scientifically acceptable

115] Dr. Goldstcin acknowledged that the mechanism of

neurotoxicity from TCA and Perc had not been demonstrated

116] Dr Lantsberger’s testimony failed to mect the relevance

requirement. She testified that it was only a “possibility.” not a

“probability.” that Williams suffered from brain damage from

exposure to solvents. Dr. Lantsberger admitted that she could not

testify to a specific cause and effect relationship between

Williams’ exposure and health problems. She relied on a “w hole

person aggravation” theory without establishing that it had a

scientific basis. [17] Dr. Lantsberger’s testimony regarding the

hazards of TCA and Perc was inadmissible. Like Dr. Goldstein.

she relied on the Altman and Kalifant studies to reach her

conclusions. and admitted that medical science had not determined

the effects of short-term exposure to the solvents.

[18] Only one of the expert witnesses whose testimony

was not challenged provided causation testimony. and it rclated

only to Williams’ respiratory injury. [19] Considering all the

evidence admitted at trial. the district court properly denied the

defendants’ JNOV motion with respect to Williams. However.

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admission of the challenged testimony was prejudicial because it

was the sole causation evidence with respect to Williams’

neurological symptoms.

COUNSEL

Donald W. Fowler and Joe G. Hollingsworth. Spriggs &

Hollingsworth, Washington D.C., and James B King. Keefe. King

& Bowman, Spokane, Washington. for the defendants-appellants-

cross-appellees

Craig F. Schauermann, Schauermann & Thayer. Vancouver.

Washington, and Marcia M. Meade. Dawson & Meade. Spokane.

Washington, for plaintiffs-cross-appellants David Schudel.

Timothy Schudel. Danicl Glass, Sandra Schudel. Merlin Carlson.

Kathrene Howell. and Craig Thompson

Thomas C. Phelan. Vancouver, Washington. for plaintiffs-cross-

appellants John and Ruth Hopkins

Craig F. Schaucrmann, William K Thayer, and David I. Gedrose.

Schauecrmann & Thayer. Vancouver. Washington, for plaintiff-

appellee Deborah Guaragna-Williams

Kit A. Pierson. Jenner & Block. Washington D.C.. for the amicus

curiae

OPINION

BROWNING. Circuit Judge:

This diversity case involves claims for damages from

negligence and loss of consortium against defendants General

Electric Company and Kaiser Aluminum and Chemical

Corporation. Kaiscr contracted with General Electric to clean up

polychlorinated biphenyls (PCBs) at Kaiscr’s Trentwood facility

in Spokane, Washington. Nine of the ten plaintiffs were employed

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by Gencral Electric on the cleanup.'! These plaintiffs alleged they

developed various neurological and respiratory problems from

exposure to two cleaning solvents, trichlorocthane (TCA) and

perchlorocthylene (Perc).

A jury returned verdicts for the plaintiffs. The defendants

moved for JNOV or new trial. The district court affirmed the

verdict in favor of one plaintiff. Deborah Williams. The court

granted JNOV with respect to respiratory injurics? asserted by

Merlin Carlson (“Carlson”) and with respect to ncurological

injurics* asserted by Kathrene Froese. John Hopkins. and Ruth

Hopkins (“the Froese plaintiffs’). The court ordered a new trial

with respect to injurics of Carlson and the Froese plaintiffs as to

which JNOV had not been granted Finally. the court granted

JNOV on all claims asserted by the five remaining plaintiffs (“the

Schudel plaintiffs)

Defendants appeal the verdict in favor of plaintiff

Williams. The other plaintiffs appcal the granting of motions for

JNOV or new trial. We address four issues: (1) whether the

district court had jurisdiction over the defendants’ motions for

JNOV or new trial: (2) whether we have jurisdiction to review the

district court's order for JNOV and new trial as to Carlson and the

Frocse plaintiffs: (3) whether the district court crred by granting

JNOV against the Schudcl plaintiffs without considering expert

testimony the court concluded after trial had been crroncously

admitted: and (4) whether the district court properly admitted

expert testimony on behalf of plaintiff Williams

l. District Court Jurisdiction Over the Defendants’

Motions For JNOV or New Trial

Plaintiffs argue the district court lacked jurisdiction to

! The tenth plaintif¥, Sandra Schudel. did not work at the site. but asserted a

loss of consortium claim as the wife of Pamtifl Tim Schudel

2 With respect to Carlson, the term “respiratory injuries” applies to respiratory

injuries, fatigue. overall body pain, and all other all alleged juries that do not

fall within the term “neurological imyuries.~

3 With respect to these plaintills, the term “neurological injunes” applies to

neurological myuries. headaches. rashes, and all other alleged myuries that do

not tall within the term “respiratory injuries. ~

4 David Schudel. Tim Schudel, Sandra Schudel. Daniel Glass. and Craig

Thompson

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consider defendants” motions for JNOV or new trial because the

motions were not properly served.’ When the motions were filed,

Federal Rules of Civil Procedure 50 and 59 required the

defendants to both file and serve such motions within ten days

after entry of judgment. Defendants filed the motions and

delivered them to Federal Express for service on the tenth day

aftcr judgment. Whilc personal delivery or delivery to the U.S.

Postal Service would have satisfied the service requirement.

delivery to Fedcral Express did not. Magnuson v. Video

Yesteryear, 85 F.3d 1424, 1431 (9" Cir. 1996).

Rules 50 and 59 were amended in 1995, however. to

require only that such motions be filed. not served. no later than

10 days after entry of judgment. See Fed. R. Civ. P. 50(b). 59(b).

The amendments took effect December 1. 1995. and “govern all

proceedings in civil cases thereafter commenced and. insofar as

just and practicable. all proceedings in civil cases then pending.”

S. Ct. Order. Amendments to the Federal Rules of Civil Procedure

(Apr. 27. 1995).

This proceeding was pending on December |. 1995. and

no prejudice will result from application of the amendments. All

partics have bricfed the substantive. non-jurisdictional arguments

in detail. No additional action on the part of tie court or the

partics is required to proceed. We have applicd amended federal

rules of appellate procedure retroactiv cly in similar circumstances.

see Schroeder v. McDonald. 55 F 3d 454. 459-60 (9" Cir. 1995):

Wallis v. LR. Simplot Co.. 26 F.3d 885. 888 (9th Cir. 1994). and

do so here.

I. Appellate Jurisdiction Over Order Granting JNOV

and New Trial to Carlson and the F roese Plaintiffs.

The district court granted JNOV with respect to

respiratory injuries allegedly sustained by Carlson and with

respect to neurological injuries allegedly sustained by the Froese

plaintiffs. The court vacated the verdicts for these plaintiffs on

> Plaintiff Carlson does not raise this issue: his atlomey was timely served

® See former Fed. R. Civ. P 3b) (“Such a motion [for judgment as a matter

of law] may be renewed by service and filing not later than 10 days after entry

of judgment.”): former Fed. R. Civ. P. $9(b) (“A motion for a new trial shall

be served not later than 10 days after the entry of judgment.)

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the ground that they were “tainted” by the evidence of the injurics

as to which JNOV had been granted. and ordered a new trial as to

Carlson's neurological injurics and the Froese plaintiffs”

respiratory injurics. The court certificd appcals from the orders

for new trial pursuant to Federal Rule of Civil Procedure 54(b).’

|1] We have jurisdiction to revicw final judgments on

entirc claims. not on individual issucs. An ordcr adjudicating only

onc tssuc that 1s not determinative of an entire claim is not

appcalable even if a district court certifics the order under Rule

54(b). Arizona State Carpenters Pension Trust Fund v. Miller,

938 F.2d 1038. 1039 (9" Cir. 1991). We must determine

independently whether a certified judgment is final as to a

particular claim.*® /d.

|2] Litigants who advance a single legal theory of liability

applicd to onc sct of facts allege a single claim. Liberty Mut. Ins.

Co. v. Wetzel. 424 U.S. 737. 743 (1976). Carlson and Frocse

alleged a single claim of negligence. not separate claims for

ncurological injury and respiratory injury. Similarly. the

Hopkinses alleged claims for negligence and loss of consortium.

not separate claims for neurological injury and respiratory injury

as to cach claim

|3| The district court granted JNOV as to issue related to

certain injurics allegedly suffered by plaintiffs because of

defendants’ negligence. We have no jurisdiction to review the

court's rulings on these issucs because the claims for negligence

and the derivative claims for loss of consortium have not been

finally determined. The order granting new trial is also

interlocutory and not immediately appcalable. A/lied Chem. Cor.

7 Under Fed. R. Civ. P. 54(b), when a lawsuit involves multiple claims or

multiple parties, a district court “may direct the entry of a final judgment as to

one or more but fewer than all the claims or parties only upon an express

determination that there is no just reason for delay and upon an express

direction for the entry of judgment.”

8 Carlson and the Froese plaintiffs argue the standard of review is not de novo.

but abuse of discretion. We review the certification of an appeal under Rule

54(b) for abuse of discretion. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797 (9"

Cir. 1991). Even though a decision ts certified under Rule 54(b), however. we

must independently ensure that we are dealing with a final judgment before

exercising jurisdiction. Arizona State Carpenters, 938 F.2d at 1039

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Aktiengesellschafi, 781 F.2d 670, 671 (9" Cir 1985) 9

lll. Excising Testimony in Granting JNOV

The Schudel plaintiffs arguc the district court erred in

excising the previously admitted testimony of Dr. Paula

Lantsberger before granting defendants” motion for JNOV. We

agree

Dr. Lantsberger was the only witness on causation on

behalf of the Schudel plaintiffs. Dr Lantsberger described

symptoms and offered specific testimony regarding causation

under two theories: a specific condition causation theory: and a

“whole person aggravation” theory. The defendants filed a motion

to exclude Dr. Lantsberger’s causation testimony prior to trial and

a motion to strike the testimony during trial. The district court did

not rule on these motions.

After the jury returned verdicts in favor of plaintiffs and

defendants moved for JNOV. the court held that Dr Lantsberger’s

causation testimony based on the “whole body ageravation™ theorn

had been admitted erroncously. The court then considered the

sufficiency of the remaining evidence to support the Jury verdicts

and granted the motion for JNOV. The court denied defendants”

alternative request for a new trial

I4] Four circuits have held that. when deciding a motion

for JNOV. a trial court may not ignore evidence crroncoushy

admitted at trial, reasoning that excluding evidence after the

verdict is unfair to a party who may have relied on the

determination that the evidence was admissible.'” “If evidence is

® Carlson and the Froese plaintitts argue this court has jurisdiction to review a

conditional grant of a new trial under Fed. R. Civ. P. S0(c). See Air-Sea

lorwarders, Inc. vy. Air. Isia Co., 880 F 2d 176. 190 n.15(9" Cir 1989)

(stating that appellate courts may review conditional new trial orders because

the plain language of Rule Sc 1) expressly pennits this review). The

district court ordered a new trial under Rule $0(b), not Rule SO(cx 1) The

order Was not conditioned on reversal of the order granting INOV. Rule S0(b)

does not provide for review of non-conditional new trial orders

10 See Jackson v. Pleasant Grove Health Care Ctr. 980 F 2d 692. 695-96

C11" Cir 1993). Douglas v. Eaton ¢ ‘orp. 950 F.2d 1339, 1343-44 (6" Cir

1992). Sumitomo Bank v. Product Promotions, Inc... 717 ¥ 2d 2} 5.218 (5"

Cir 1983). Afidcontinent Broadcasting Co. v. North Cent Airlines, Inc., 47)

F 2d 357. 358-59 (8" Cir, 1973) The Third Circuit has held that such

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ruled inadmissible during the course of the trial, the plaintiff has

the opportunity to introduce new evidence. However. when that

evidence ts ruled inadmissible in the context of deciding a motion

for JNOV. the plaintiff. having relied on the evidence already

introduced. is unable to remedy the situation.” Jackson v.

Pleasant Grove Health Care Cir.. 980 F.2d 692. 696 (11"" Cir.

1993).

[5] We recently indicated we would abide by the same

tule. See Central Office Tel.. Inc. v. American Tel. & Tel. Co.

108 F.3d 981, 993 (9" Cir. 1997). We now hold that when ruling

on a Rule 50(b) motion. a district court should not exclude

evidence crroncously admitted at trial. The record should be taken

as it cxisted when the trial closed. This rule promotes certainty:

litigants need not supplement conditionally admitted evidence.

perhaps unnecessarily: and district courts need not speculate as to

what other evidence might have been offered if the evidence had

been excluded at trial. The rule promotes fairness: punishing a

litigant for the courts erroncous admission of evidence is unfair:

and the remedy of a new trial is available to put both sides on an

equal footing. Jackson. 980 F.2d at 696 n.4.

[6] The district court properly concluded that Dr.

Lantsberger’s testimony based on the “whole person aggravation”

theory of causation did not mect the standard of Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (Daubert 1).

(outlined in Part IV of this opinion). and should have been

excluded. Once the jury rendered its verdict based on the

improperly admitted evidence. however. the district court erred in

excising that cvidence when ruling on the motion for JNOV.

Considering all the evidence admitted at trial. including Dr.

Lantsberger’s “whole person aggravation” thcory testimony. we

conclude there was sufficient evidence to support the jury verdicts

in favor of the Schudel plaintiffs.

[7] Nonctheless. these verdicts may not stand. The

district court erred in denying defendants’ motion for new trial. A

new trial should be granted when the erroneous admission of

eNclusion is proper as long as other evidence relating to the same issue was not

harred during tnal as cumulative, reasoning that the moving party has a

competing interest in litigating a case only once and expressing doubt that

litigants would hold back significant evidence at tral. Lighting Lube, Inc., v.

Witco Corp., 4 F.3d 1153, 1199-1200 (3d Cir. 1993)

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evidence affected the substantial right of the parties. Fed. R. Civ.

P.61. Dr. Lantsberger’s testimony was the only evidence of

Causation; its crroncous admission was undoubtedly prejudicial.

IV. The Defendants’ Appeal

Defendants argue the neurological symptom causation

testimony of Dr. William Morton. Dr. Danicl Goldstcin. and Dr.

Lantsberger underlying the jury verdict for Deborah Williams was

not admissible under Federal rule of Evidence 702"!

A.

[8] The Supreme Court held in Daubert 1.509 US. at

590-91. that Rule 702 requires the trial Judge to determine that

proposed scicntific expert testimony will be both reliable and

relevant. See also Daubert v. Merrell Dow Pharm. 43 F.3d

1311. 1313 (9" Cir. 1995) (Daubert I),

[9] Scientific knowledge is reliable if it is “ground| cd] in

the methods and procedures of science” and “connotes more than

subjective belicf or unsupported speculation.” Daubert 1. 509

U.S. at 590. In determining reliability. “|t}he focus . . . must be

solely on principles and methodology. not on the conclusions that

they generate.” Jd. at 595.

[10] Evidence of scientific knowledge is relevant if the

“reasoning or methodology properly can be applicd to the facts in

issue.” Jd. at 593: see also Daubert Il. 43 F.3d at 1315 (evidence

of scientific knowledge must “logically advance] | a material

aspect of the proposing party's case”). A court's determination of

rclevance must consider the applicable substantive standard. See

id. at 1320. Under Washington tort law. a plaintiff must show

that the “the act complained of ‘probably or “more likely than

not caused the subsequent disability.” O Donoghue v. Riggs,

440 P.2d 823. 830 (Wash. 1968). This is virtually the same as

the standard under California tort law applied in Daubert I]. See

43 F.3d at 1320. Under this standard. we held in Daubert J] that

expert testimony offered to prove causation did not satisfy the

') Defendants also argue the trial court should have held a pretrial hearing on

the admissibility of the testimony of Williams’ experts. Because we conclude

the expert testimony should have been excluded. we do not decide whether a

pretrial hearing should have been held.

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relevance requirement because the evidence suggested only that

usc of the drug at issue “could possib/y have caused plaintiffs’

injuries.” rather than “morc likely than not” caused the injuries.

i.c., that use of the drug more than doubled the likclihood the

injurics would occur. 43 F.3d at 1320-22.

B.

[11] The district court approved reliance by Williams”

experts on interview data collected by Diane Nebel. Nebel

contacted many of the workers at the Kaiscr facility aftcr one of

the project supervisors fell ill with Legionnaire’s discase. Nebel

found no evidence of Legionnaire’s outbreak. but did discover that

some of the workers. including the plaintiffs. suffered from

various medical symptoms. The data collected in Nebel’s

Legionnaire’s discasc investigation provided the basis for much of

the scicntific testimony presented by Williams’ experts at trial.

112] The district court acted within its discretion in

approving the usc of this data by Williams’ expert witnesses. Dr.

Goldstcin and Dr. Lantsberger both testified the data was of the

type toxicologists consider reliable and regularly rely upon. See

Fed. R. Evid. 703.

Dr. Morton testified that plaintiff Williams suffered from

solvent-induced toxic encephalopathy which “more probably than

not” was caused by exposure to Pere and TCA. Dr. Morton's

testimony met Daubert ’s relevance requirement. However, it did

not mect Daubert 's requirement of reliability.

{13] Dr. Morton's conclusions were based on

extrapolation from studies that: (1) involved organic solvents other

than TCA or Perc: and (2) examined long-term exposure at

relatively low chemical concentrations or short-term exposure at

very high concentrations, rather than the short-term.

modecratc-level exposure sustained by Williams. Dr. Morton did

not establish it was scientifically acceptable to draw gencral

conclusions about the neurotoxicity of TCA and Perc from studies

of other chemicals: indeed. the testimony indicated small

differences in molecular structure often have significant

consequences.

[14] As to differences in length and intensity of exposure.

the district court crroncously reasoned that because there was

evidence that acute exposure to TCA and Perc can cause toxic

CT

A-14

encephalopathy. whether Williams’ cxposure was sufficicnt to

causc her symptoms was a question for the jury. Williams’

exposure was ncither long enough nor intense enough to fall within

the ranges described in the studics Dr Morton rclied upon.

Extrapolation was necessary to make the studics relevant. and

there was no showing that the necessary extrapolation was

scientifically acceptable. !2

Dr. Goldstein's testimony suffered from similar

deficicncies. Dr. Goldstein conceded that only five organic

solvents. none of which were involved in this case. had been

Proven to be neurotoxic. He also testificd that it would be

improper to infcr conclusions as to the toxicity of TCA and Perc

based on the toxicity of other solvents. and that repeated exposure

to nonpersistcnt toxins such as organic solvents over a long period

must be documented to establish a causal rclationship.

[15] Dr. Goldstein acknow ledged that the biochemical

mechanism of ncurotonicity from TCA and Perc has not been

demonstrated. Only two studics cited by Dr. Goldstein involved

TCA and Perc. and neither met / Jaubert standards. The Altman

study found no rclationship between Cxposure to Perc and the

toxic encephalopathy or loss of consciousness alleged by the

plaintiffs. The Kalifant Study involved long-term (7-15 vcars).

repetitive exposures to TCA at high levels.

[16] Dr. Lantsberger’s testimony failed to mect

Daubert’s relevance requircment. She testified it was only a

“possibility.” not a “probability.” that Williams suffered organic

brain damage from xposurc to solvents at the facility. Dr.

Lantsberger admitted she could not testify to a specific cause and

effect relationship between Williams’ exposure and health

problems. She rclicd instcad on a “whole pcrson aggravation™

theory without establishing that the theory had a scientific basis.

[17] Dr. Lantsberger’s testimony regarding the hazards

of TCA and Perc was inadmissible under Daubert. Dr.

Lantsberger, like Dr. Goldstein. relicd on the Altman and Kalifant

articles to reach her neurotoxicity conclusions. and like Dr.

Goldstein, admitted that medical science has not determined the

, - ms " e ;

l2 Given our analysis of the admissibility of Dr. Morton's testimony, We need

not consider defendants” contention that his testimony should have been

e\cluded because lestumony based on case reports is not admissible under

Daubert

os

A-15

effects of short-term exposure to the solvents involved.

[18] Plaintiff Williams points to other expert witnesses

whosc tcstimony was not challenged by defendants. Only onc of

these experts provided causation testimony. and his testimony

related only to Williams’ respiratory injury.

{19] Considering all the evidence admitted at trial,

including the crroncously admitted evidence. we hold the district

court properly denicd defendants’ motion for JNOV with respect

to Williams. Admission of the challenged expert testimony was

prejudicial, however, becausc it was the sole causation evidence

with respect to Williams’ neurological symptoms. Accordingly.

we vacate the judgment entered on the jury verdict. reverse the

district court's denial of defendants’ motion for a new trial, and

remand.

CONCLUSION

We lack jurisdiction to review the district court's grant of

JNOV and new trial as to plaintiffs Merlin Carlson. Kathrene

Froese. John Hopkins. and Ruth Hopkins. and DISMISS their

appcals.

We REVERSE the grant of JNOV and the denial of the

motions for new trial as to the plaintiffs David Schudel. Tim

Schudel. Sandra Schudcl. Danicl Glass. and Craig Thompson. and

REMAND.

We find plaintiff Deborah Williams’ ncurological cxpert

testimony on causation inadmissible, VACATE the judgment

entcred on the jury verdict in her favor. REVERSE the denial of

the motion for new trial, and REMAND.

DISMISSED in part. and VACATED, REVERSED. and

REMANDED in part. No costs allowed.

A-16

FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NOV 25 1994

JAMES R. LARSEN. CLERK

DEPUTY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DAVID SCHUDEL. ct al. et ux. NO. CS-92-081-FVS

Plaintiffs.

VS

ORDER RE

GENERAL ELECTRIC pOsT-rhiAL

COMPANY and

KAISER ALUMINUM AND MOTIONS

CHEMICAL CORPORATION.

Defendants

BEFORE THE COURT are certain post-trial motions.

They were decided without oral argument on November 22. 1994

Sce Local Rule (“LR”) 7(h)(3).

I. PLAINTIFFS’ MOTION TO STRIKE

A. Background

Judgment was entered on July 13. 1994. On July 27,

1994. the defendants filed motions for both judgments as a matter

~ Of law and a new trial Fed.R.Civ.P. 50(b): Fed R Civ P. 59.

That same day. copies of the motions Were mailed to opposing

counsel via Federal Express

The plaintiffs now move the Court to strike the

defendants” Rule 50(b) and Rule $9 motions. They arguc that the

ORDER l

ee ern meopennnae

a RR ER RA A AT RI RT TT ET NR NU RN A A TR I AR

A-17

motions were not served in a timely manner.

B. Ruling

Motions for judgment as a matter of law and for a new

trial must be filed and served within ten days of the datc judgment

is entered. Fed.R.Civ.P. 50(b): Fed.R.Civ.P. 59(b). In

calculating the ten-day deadline, neither intermediate weckends nor

legal holidays are counted. Fed.R.Civ.P. 6(b). Thus. the

defendants had until the twenty-seventh of July to file and serve

their Ruic 50(b) and Rule 59 motions.

It is undisputed that the defendants mailed copics of their

motions to all opposing parties by Fedcral Express on July 27.

1994. Since “|sJervice by mail is complete upon mailing.”

Fed.R.Civ.P. 5(b). the defendants’ motions would appcar to have

been both filed and served prior to the deadline.

The plaintiffs disagree. They contend that sending

documents by Fedcral Express docs not constitute “mailing”

within the meaning of Rule 5(b).

Notwithstanding the plaintiffs’ disagreement. they have

failed to cite a single decision adopting their interpretation of Rulc

5(b). They are forced to rely upon Transco Leasing Corp. v.

United States, 992 F.2d 552. 554 n.2 (5" Cir. 1993). a case in

which the Fifth Circuit cautioned. in dicta, “that service by

Federal Express may not be service by mail.” 13

The defendants. by contrast. have cited two district courts

decisions that considered — and rejected — the plaintiffs position.

Both held that Rule 5(b) docs not require mailing through the

United States Postal Service. United States v. Certain Real

Property & Premiscs Known As 63-29 Trimble Rd.. 812 F.Supp

332. 334 (E.D.N.Y. 1992): Edmond v. United Statcs Postal Serv..

727 F.Supp. 7. 11 (D.D.C. 1989). rev'd on other grounds. 949

F 2d 415 (1991).

Herc. it was reasonable for the defendants to believe that

the method of service they utilized would be more prompt than

ordinary first class mail, and every bit as rcliable. Given the

plaintiffs’ failurc to citc authority supporting their interpretation

of Rule 5(b). and the fact that two district courts have specifically

rejccted their position. the plaintiffs’ motion to strike will be

!3Professors Wright and Miller mention Transco, but do not analyze

the issue. 4A C. Wright, A. Miller, Federal Practice and Procedure. § 1148

(2d ed. Supp. 1994)

ORDER

No

A-18

denied.

Il. DEFENDANTS’ MOTION FOR JUDGMENT

AS A MATTER OF LAW.

The defendants offer six reasons hy the Court should

grant judgment as a matter of law: Fed.R.Civ.P. 50(b). They are

as follows: (1) the plaintiffs” experts based their opinions upon

unrcliable data: (2) certain experts were not qualified. and their

opinions do not constitute “scientific knowledge” within the

meaning of Rule 702: (3) even if the disputed opinions are

admissible. they fail to establish causation: (4) under Washington

law. many of Dr. Lantsberger’s opinions regarding causation are

legally: insufficient: (5) the plaintiffs were loaned servants: and (6)

Kaiscr owed no duty of care to the plaintiffs.

A. Reliability/Loaned Servant/ Duty

Not all of the defendants" arguments require in-depth

analysis. The first, fifth. and sixth may be disposed of rather

quickly.

/. Reliability of Data

The Court refused to admit the “Nebel” exhibits because

they were hearsay. and the plaintiffs had not demonstrated the

applicability of an exception to the hearsay rule. Moreover, even

if an exception had applied. the exhibits were cumulative (Tr. at

5790-91)

Later, the defendants attempted to impeach Craig

Thompson with statements he made to Ms. Nebel. Sce

Fed. R.Evid. 801 (d) (2) (A) (admission by party-opponent). The

plaintiffs objected. (Tr. at 5970.) In sustaining the objection. the

Court said, in part. “They [the Nebel exhibits] were not admitted

because of concerns about reliability." (Tr. at 5984.)

The defendants have interpreted the court's statement as a

finding that the Nebel exhibits were unreliable. When both

sections of the transcript are read in context. it is evident that no

such finding was intended.

é: Loaned Servant

The jury was instructed Properly on the question of

“loaned servant.” Since there is substantial evidence to support

the jury's determination that the plaintiffs were not loaned

scrvants. there is no basis for granting the defendants judgment on

ORDER 3

SDE OR ANOS I 5 Bie Sittin: da eb

Pi eats SEs ome

A-19

this issuc.

3. Duty of Care

With Respect to the question of “duty.” the defendants

have cited no new authority. The Court is satisfied that a duty

existed.

B. Admissibility of Certain Expert Opinions

The second argument focuses on the admissibility of

opinions given by Drs. Lantsberger. Goldstcin. and Morton. The

defendants submit that these three witnesses were not qualificd to

render opinions regarding toxic encephalopathy. and that their

thcorics of organic brain damage are not supported by the

scientific literature.

Both prongs of the second argument were raised prior to

(and during) trial. After reviewing the matcrials presented by the

partics. the Court ruled against the defendants on both issucs.

Since then, the Ninth Circuit has decided two civil cases.

the outcome in cach hinging on the admissibility of expert

testimony. Both opinions discuss the requirements of Rule 702 in

light of Daubert v. Merrcl Dow Pharmaccuticals, Inc... = US

___. 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Both agree that

expert testimony may not be admitted unless the trial judge first

determines that the expert's conclusions are based upon scientific

knowledge. Hopkins v. Dow Corning Corp.. 33 F.3d 1116. 1124

(9" Cir. 1994): Claar v. Burlington Northern R. Co.. 29 F.3d 499.

502 (9"" Cir. 1994).

Although Hopkins and Claar arc clearly relevant here.

neither dictates a result different than that previously reached by

the Court. As a result, the Court declines to disturb its prior

rulings regarding toxic encephalopathy.

C. Sufficiency of Certain Expert Opinions

(Background)

The third and fourth arguments challenge the sufficiency

of certain expert opinions — primarily those of Dr. Lantsberger.

Because this part of the defendants’ Rule 50(b) motion attacks

sufficiency, it is necessary to describe the disputed opinions in

some detail.

- Dan Glass

Mr. Glass reported a number of symptoms to Dr. Paula

Lantsberger, including heart palpitations, headaches. memory loss.

and respiratory problems. Dr. Lantsberger was the only expert

ORDER 4

a __

A-20

who attempted to link any of Glass” specific symptoms to work at

Kaiser.

(a) Deposition T. estimony

During a deposition in November. 1993. Dr. Lantsberger

testified that she “just [didn't] know what caused [the heart

palpitations]. (Tr. at 2317.)

With respect to a headache Glass complained of during

May. 1990, Dr. Lantsberger testificd that “it was probably a more

migrainous type of headache and that its” probably not [related] to

his exposure.” (Tr. at 2325.)

__Dr. Lantsberger was asked the following question

regarding a headache Glass reported during September, 1991.

“[I]s it true that the headache that he complained of when you last

saw him is unrclated to his industrial exposure at Kaiser?” (Tr. at

3180.) “Truc.” she replied. Id.

Dr. Lantsberger was asked what factors she had

considered in determining whether Glass” brain had been injured

during the cleanup. They included “his function and his

performance since working at Kaiser.” “the absence of any

objective. ncurologic findings.” and “the literature on mixed

organic solvents.” (Tr. at 3181.) Having considered those

factors. she was asked whether it was truc that she had concluded

“that [Dan Glass] did not sustain brain damage as a result of

working at Kaiser in 1988." Id. “Correct.” she said. Id.

Finally. Dr. Lantsberger was asked to review a report

prepared by Dr. Patricia Sparks. a board-certificd specialist in

occupational medicine. (Dr. Sparks had examincd Mr. Glass at

the request of Washington's Department of Labor and Industrics.)

In her report, Dr. sparks had said “that there is no respiratory.

ncurological or mental impairment resulting from [Glass]

previous exposures on a more probable than not basis.” (Tr. at

2350.) Dr. Lantsberger was asked whether she agrced with that

statement. Once again. her response was, “Correct.” Id.

(b) Direct Examination

Dr. Lantsberger’s testimony at trial was dramatically

different. She now said that it was probable that Glass had a

pre-existing lung condition which had been aggravated by

“exposure to chemicals.” (Tr. at 1893.) She now assumed that

Glass* headaches were related to the exposure. (Tr. at 1895.) She

now opined “that there may be a rclationship between his heart

ORDER 5

|

Bish habe Ree Le ges Ls

ot ss ea Be

ees Se

A-21

symptoms while working on the site and his exposure to the

chemicals.” (Tr. at 1897.) Finally, in apparent reference to

allegations of memory loss and difficulty in concentrating. she

now said “that the symptoms that [Glass] was complaining of that

had been a change over his base line would be related to his

exposures.” (Tr. at 1899.)

(c) Cross-examination

Dr. Lantsberger testificd that she first examined Dan

Glass during October, 1989, approximately ten months aftcr the

cleanup project. He did not complain of respiratory problems.

(Tr. at 2288.) His cxamination was essentially normal. (Tr. at

2298.) He had normal pulmonary functions. (Tr. at 2305-06.)

At that point, Dr. Lantsberger did not diagnose any respiratory

injury or discase. (Tr. at 2312.)

Glass next went to Dr. Lantsberger during Mav. 1990.

Once again. he neither mentioned respiratory problems. nor did

Dr. Lantsberger diagnose any. (Tr. at 2326.) Glass did complain

of headaches. However. during cross cxamination. Dr.

Lantsberger conceded that she could not say there was a specific

causc-and-cffect relationship between his industrial exposure and

the headaches he described. (Tr. ait 2326.)

Dr. Lantsberger’s last examination of Mr. Glass occurred

during Scptember. 1991. (Tr. at 2333.) At that time. he made no

mention of respiratory problems. Id. He did. however. report

headaches and memory loss. (Tr. at 2332.)

With respect to the former. Dr. Lantsberger again

conceded that she was unable to find a cause-and-effect

rclationship between Glass’ work at Kaiscr and the headaches he

mentioned. (Tr. at 2334.) With respect to the latter. Dr.

Lantsberger's answers were somewhat coy. Nevertheless. when

pressed by defense counscl, she finally acknowledged that she

agreed with two other cxperts who had reported that Glass had no

neurological or psychological impairment as a dircct result of his

work at Kaiser. (Tr. at 2347-52.)

(da) First Redirect kxamination

On redirect. Dr. Lantsberger said that she thought Mr.

Glass had experienced an “alteration in his level of consciousness”

while working at Kaiser. (Tr. at 3099.) She did not. however.

attcmpt to link that phenomenon with a specific injury.

Later. Dr. Lantsberger was asked whether it made

ORDER 6

A-22

“scientific sense” to determine whether cach condition Mr. Glass”

complained of could be attributed to work at Kaiser. (Tr. at

3138.) She denicd that it did. insisting that “you have to look at

the patient as a whole.” Id.

Insofar as her prior testimony was concerned. Dr.

Lantsberger said. “I was trying to indicate that as a specific.

isolated. single. sole source cause. no. | couldn't ascribe things as

cach individual cause. I had to take them as a whole and as an

aggregate group of. aggregate group of people. to provide the data

I needed to develop my opinions.” Id.

(e) First Recross Second Redirect

During First Recross. Dr. Lantsberger was impcached

with her prior deposition testimony. (Tr. at 3179-8] .) In an effort

to rchabilitate her, counsel for the plaintiffs attempted to show that

the statements quoted by defense counsel referred to an

cxamination requested by the Department of Labor and Industrics.

Plaintiffs’ counsel implied that in the context of a Labor and

Industrics cxamination, a finding of “impairment™ must be based

upon certain limited objective factors. (Tr. at 3203-06.)

At best. the effort at rehabilitation was only partially

successful. As notes above. it is clear that the opinion which Dr.

Lantsberger gave during her deposition (i.¢.. that Mr. Glass had

sustained no brain damage) was based upon both subjective and

objective factors. (Tr. at 3181.).

2. David Schudel

Mr. Schudel has been examined by Dr. Lantsberger on a

number of occasions. Although Schudel described a number of

symptoms. there were (at most)two medical conditions which

Lantsberger was willing to say were more probably than not

caused by his work at Kaiser. Onc was a sensitization to odors:

the other was an “aggravation” of his “whole person.”

(a) Deposition Testimony

David Schudcl had been tested by psychologists Paul Domitor and

Llovd Cripe. Having revicwed that testing. Dr. Lantsberger was

asked whether it was her “medical opinion that Mr. [David]

Schudel does not have brain damage as a result of his industrial

exposure at Kaiser?” (Tr. at 2980.) She replied. “Correct.” Id.

During her deposition. Dr. Lantsberger described

Schudel’s reaction to odors as a “conditioned response. (Tr. at

2989.) She explained it this Way:

ORDER 7

,

;

y

;

}

A-23

I kind of liken it to the Pavlov’s dog theory. Then

you put the dog. ring the bell, associate it with

food. the dog salivates. You take Dave. You put

him out with chemicals. You have somebody's

investigation proceeding where he is secing health

effects that make him scared. Subsequently|.] he

continucs to be scared around chemicals

(Tr. at 2990). Dr. Lantsberger was asked whether it was the

investigation conducted by the county health department which

rang the bell “and sct in motion what has become — what has been

a sort of cascading conditioned response from Mr. Schudel.” Id.

“Correct.” she said. Id.

(b) Direct :xamination

Dr. Lantsberger’s causation testimony was intcresting,

When asked for the cause of “David Schudcl’s emotional rcaction

to smells.” (Tr.at 1777). she said. “I think that on a reasonable

medical certainty he did not have this before his initial exposure in

1988 and subscqucently to that I think that it’s. on a more probable

than not basis. related to his initial chemical exposure in “88.~)

Id. In other words. since Senudel did not react to odors before

being exposed to chemicals at Kaiser. it must be the exposure

which caused the reaction.

Later, Dr. Lantsberger described certain pulmonary

function tests which had been administered to Mr. Schudel after

the trial was underway. (Tr. at 1840-41.) According to Dr.

Lantsberger, the results indicated that Schudel’s reaction to odors

was not strictly psychological. (Tr. at 1841-42.)

Thercaftcr. Lantsberger was asked two additional

causation questions. The first was “whether David Schudcl’s

physical problems with chemicals, as far as his lungs, is in any

way related to the 1988 clean-up?” (Tr. at 1843.) To this

qucstion she replicd. “I do think that some of the problems that

he’s having with his lungs and reactions are reactions to his, his

lung condition are related to this cxposurcs in the “88 clean-up.”

Id.

As a sccond causation question. Lantsberger was asked

“whether David Schudcl would have these problems that vou've

identified if he was provided with adequate working protective

ORDER 8

A-24

gear in 1988?” (Tr. at 1843-44) Ultimately. she said. “I think

that if they had had respiratory protection equipment at that time

frame, I don’t think that he would be reacting as badly as he has

now. Id. at 1844.

(c) Cross-examination

During the course of cross-examination, Dr

Lantsberger conceded that David Schude! does not have Reactive

Airway Dysfunction Syndrome. (Tr. at 2978). She further

conceded that he did not sustain brain damage while working at

Kaiser. (Tr. at 2979)

Since the Kaiser project. Schudel has had numerous

tests. including methacholine challenge tests. pul’ onary function

tests. ncuropsy chological tests. and chest x-ravs. (Tr. at 2992 )

Dr. Lantsberger acknowledged that prior to trial. nonc of the tests

had revealed any pathology. (Tr. at 2992.) It was not until the

Spring of 1994 (five and one-half years after the cleanup project)

that Dr. Lantsberger was able to produce test results which

“showed some altcration in pulmonary function capabilitics ~ (Tr

at 2993-94 )

By the end of cross examination. Dr. Lantsberger had

begun to back away from her carlier diagnosis When asked

Whether the most recent pulmonary function test results could be

described as a conditioned response. Lantsberger said. “I don’t

ascribe as much of that to the conditioned response now that

We ve got some of the other confounding variables out of the way

We ve gotten the smoking out of the way. and | have data with

him on a work site with nurses monitoring him on the work site.”

(Tr. at 3012.)

(d) Redirect

On redirect. Dr. Lantsberger twice asserted that David

Schudcl had experienced an altcration of consciousness hile

working at Kaiser. (Tr. at 3073. 3098.) No effort was made to

link Schudcl’s alteration of consciousness with Lantsberger’s prior

diagnosis.

Later. counscl for the plaintiffs asked Lantsberger

whether she had been cross-cxamined regarding “David Schudcl

as... a whole. live person or was it to the isolated incidences [sic]

of his cxistence?” (Tr. at 3140-41.) The latter. Lantsberger said.

Id.

Plaintiffs” counsel asked whether it is “scientifically sound to

ORDER 9

§

7

:

)

3

Re OTA Ali iN AOR NE Radics! cnn! Aspe

A-25

consider David Schudel in terms of isolated incidences |sic]?~ Id.

“No,” Dr. Lantsberger said. “it is not. You have to look at him in

a whole.” Id.

Finally, counscl for the plaintiffs asked, “Would you

pleasc tell the jury if you have any opinion as to David Schudcl as

a wholc person in relationship to this exposure to the chemicals in

1988 on a more probable than not basis?” Id. After an objection.

Lantsberger said. “|T]aking . . . into account the totality of his

information and all of the information that was presented. in an

aggregate way. | think that it was more probably than not an

aggravation.” Id.

(e) First Recross Second Redirect

During First Recross. Lantsberger again admitted that

Schudcl sustained no brain damage from working on the cleanup.

(Tr. at 3189.) during Sccond Redirect. Lantsberger was asked to

return to what plaintiffs’ counscl described as “the Pavlov s dog

analogy.” (Tr. at 3218.) Although Lantsberger had appeared to

distance hersclf from that comparison at the close of cross-

examination. she now reiterated the theory. (Tr. at 3219, 3221.)

3. Craig Thompson

Dr. Lantsberger described a varicty of symptoms while

testifying on Mr. Thompson's behalf. Only a limited cffort was

made to link any of them to the cleanup project on a more

probable than not basis.

(a) Deposition Testimony

Dr. Lantsberger first saw Mr. Thompson in October.

1989. He complained of memory loss. among other things. (Tr

at 2655.) With respect to memory loss. Dr. Lantsberger was

asked the following questions during a deposition which took place

in November. 1993. “[I]s it vour testimony that his complaints of

memory loss in 1989 may possibly have been due to his industrial

exposure. but vou can't say with probability that they were?” (Tr.

at 2660.) “Correct.” she replied. Id.

(b) Direct L-xamination

At one point. Dr. Lantsberger said that Thompson

complained to her of feeling “very sleepy” and “high” whilc

working at Kaiser. (Tr. at 1789-90). At another. she said she had

treated him for memory loss. (Tr. at 1800). However.

Lantsberger did not testify that Thompson's mental scnsations

reflected neurologic injury: nor did she say that his memory loss

ORDER 10

A-26

could be attributed (on a more probable than not basis) to work at

Kaiscr

With respect to respiratory impairment. Lantsberger—

testified that Thompson “had indicated to me that he had had an

increase in the symptoms that he’s had since his exposure while he

Was at work.” (Tr. at 1821.) The increase in symptoms was

apparently cnough to persuade Lantsberger “that the exposure on

the work site aggravated his lung conditions.” (Tr. at 1822 )

(c) Cross-examination

Dr. Lantsberger saw Mr. Thompson during October.

1989. The physical examination was normal. with the exception

of “crackles in the bases of his lungs.” (Tr. at 2676.) Besides

doing a physical exam, Dr. Lantsberger ordered a number of tests

While a chest x-ray and pulmonary function tests were normal.

(Tr. at 2679, 2685). a methacholine challenge test was positive

(Tr. at 2680.)

Mr. Thompson went to Dr. Lantsberger during June.

1990. complaining of a sore throat and c ugh. (Tr. at 2694.) She

diagnosed an upper respiratory infection. (Tr. at 2695.) When

asked whether the infection was “probably related or caused by

his industrial exposure.” (Tr. at 2696). she replied. “As a direct.

single affect |sic]. causal rclationship. no.” Id.

During December. 1990. Thompson was scen by one of

Dr. Lantsberger’s colleagues. (Tr. at 2703.) He had an upper

respiratory infection. Id. According to Lantsberger. Thompson

“may have had more sensitive respiratory mucosa. resulting in him

having an increased susceptibility to infection.” (Tr. at 2704.)

However. when questioned by defense counsel. she conceded that

it Was a possible cause not a probable cause. Id.

Thompson went to Lantsberger during January, 199}.

for another respiratory infection. (Tr. at 2706.) Lantsberger was

asked whether it was true that the infection had a possible- - but

not a probable- - relationship to this work at Kaiser Id. She

said. “As a specific single etiology causal factor. correct.” Id.

Thompson went from February. 1991, until September.

1992. without further respiratory problems. (Tr. at 2720.)

During an cxamination in September. 1992. Lantsberger detected

crackles in his lungs. (Tr. at 2721.) However. she conceded that

the crackles were consistent with his “significant” smoking. Id.

(d) Redirect Examination

ORDER 1]

ee ee i eee

i VAS OA) Dm ak ie (eth

A-27

Dr. Lantsberger cxplained her “aggravation” theory

during redirect. She said. “|The fact that he is having problems

that exist now that didn't exist before he had his work at Kaiser

leads me to think that there was some aggravation of these

preexisting conditions as a result of his workplace.” (Tr. at

3083.)

As she had with respect to Dan Glass and David

Schudel. Dr. Lantsberger testified that Thompson had experienced

an altcration of consciousness while working at Kaiscr. (Tr. at

3098.) However, she made no effort to link Thompson's

alteration of consciousness with her prior diagnosis.

(e) lirst Recross

During recross. Dr. Lantsberger repeatedly asserted that

Thompson's condition had been “aggravated” by work at Kaiser

In cach instance. she was confronted with strikingly inconsistcnt

deposition testimony. Sce. c.g.. Tr. at 3164 (“headaches he

complained of in 1989 were different in frequency and severity

and were most likely not related to the headaches that he was

expericncing while he was on the job site’). Tr. at 3165 (possible

that memory loss was duc to industrial exposure. but not

probablc)

4. Tim Schudel

Dr. Lantsberger was the only expert to testify on Tim

Schudcl’s behalf. Whilc on the stand. she listed the various

symptoms he had reported to her. However. when it came to the

qucstion of causation. her testimony was quite tentative

(a) Pirect kxamination

Dr. Lantsberger was asked whether she had “an opinion

based upon reasonable medical probability as to whether there's

any rclationship between Tim Schudcl’s lung problems and

memory problems and his exposure to the chemicals in 1988?”

(Tr. at 1885.) She responded in the following manncr, “He

indicated to me that he hadn't had any problems with memory or

concentration or breathing problems prior to this cmplovment on

the job site.” Id.

Shortly thercaftcr. Dr. Lantsberger was again asked

whether she had “an opinion as to whether there's any relationship

between Mr. Tim Schudcel’s long problems and his memory

problems and the exposure to the chemicals in 1988?” (Tr. at

1888.)

ORDER 12

A-28

She said, “Mr. Schudel had indicated to me in his

history and through the testing process that he had not had any

problems with his lungs nor any problems with his memory prior

to being cxposed in 1988.” Id.

Plaintiffs’ counsel followed up by asking. “So is there a

relationship there?” Id. To which Lantsberger replicd. “I believe

20.” id

(b) (ross-examination

Dr. Lantsberger acknowledged that although Mr.

Schudcl “necded to have a pulmonary work-up by a

pulmonologist.” Tr. at 2841. “|wJc never did gct him in to sce

one. Id.

Mr. Tim Schudel was examined by psychologist Llovd

Cripe. Dr. Cripe asked that Mr. Schudcl be informed “that there

is no Clear indication that his brain has been damaged as a result

of his exposure.” (Tr. at 2847.) Cripe went on to say. “Whilc it

is possible that his previous learning disabilitics have been

cxaccrbated or strained in some manner. it is not possible in a

medical/Icgal manner to be reasonably certain that he has suffered

any kind of appreciable brain dysfunction related to the industrial

toxic exposure.” Id.

Aficr being counseled regarding Dr. Cripe’s report.

Schudel made no further complaints regarding memory loss. (Tr.

at 2850.)

(c) Redirect

Dr. Lantsberger testified that Tim Schudel cxpericnced

an “altcration of consciousness” while exposed to chemicals at

Kaiser. (Tr. at 3097.) As with the other workers. no effort was

made to link that opinion to a specific diagnosis.

With respect to her “aggravation™ opinion. Dr.

Lantsberger said. “In rclationship to him as a whole person in the

totality of the information that was supplicd to me. as a whole. I

think that his condition was. on a more probable than not basis. an

aggravation of his preexisting conditions.” (Tr. at 3140.)

S. Kathrene Froese

Two experts testified regarding Ms. Frocse’s specific

complaints. One was Dr. Jonathan Ostrow. The defendants

concede that he “opined with reasonable medical probability that

Ms. Froese [has] irritant-induced Reactive Airways Dysfunction -

Syndrome.” (Defendants’ Memorandum in Support of Renewed

ORDER 13

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Pika aR at Pah ins Ei at 6 EEN ke tah are

Pn late EMSA a Mil teh AWB Aeon

U Oe ee

A-29

Motion at 76.)

The other expert to testify regarding Ms. Frocse's

complaints was Dr. Lantsberger. She mentioned a number of

non-respiratory problems, including rash (Tr. at 1846-48),

memory loss (Tr. at 1851, 1862-64), hcadaches (Tr. at 2772-73).

and “whole person” aggravation (Tr. at 3144.)

(a) Direct examination of Dr. Lantsberger

Ms. Frocsc told Dr. Lantsberger that she had developed a

rash while working at Kaiser. (Tr. at 1846.) According to Ms.

Froese. the rash appeared on those portions of her body that were

most exposed to the cleaning agents she was using. (Tr. at

1846—47). Although Dr. Lantsberger implicd that the cleaning

agents caused the rash. she was never asked whether she had an

opinion on that matter.

Dr. Lantsberger testificd that Ms. Froese complained of

memory “difficultics.” (Tr. at 1862.) She acknowledged.

however. that “we never were able to do full ncuropsvchological

testing on her. Id.

Plaintiffs’ counsel did not ask Lantsberger whether

Froese’s reported memory difficultics were related to her work at

Kaiser. Plaintiffs’ counscl did ask, however, whether it 1s “harder

to show by objective test” that a person who is not very bright has

“been injured by exposure to chemicals.” Id. Lantsberger said

that it was. clearly implying that the jury could find organic brain

damage notwithstanding the absence of ncuropsychological

testing. (Tr. at 1862-64.)

(b) Cross-examination of Dr. Lantsberger

On cross, Dr. Lantsberger was asked whcther she would

agree that the headaches which Ms. Frocse complained of in 1989

were unrelated to work at Kaiser. Lantsberger equivocated,

saving, “Other than the fact that Ms. Howell indicated that since

the time that she worked there she’s had persistent hcadaches. In

rclationship to the fact that a significant number of the coworkcrs

complained of this. which means specific ctiology causing an

infectious relationship. no, I can't do that.” (Tr. at 2772-73.)

When defense counscl pressed for a more concise answer,

Lantsberger replicd. “As a specific sole cause. no.” (Tr. at 2773.)

Latcr. Dr. Lantsberger was asked by defense counsel

whether Ms. Froese had experienced an alteration of

consciousness during the cleanup. (Tr. at 2828.) In response.

ORDER I4

A-30

Lantsbergcr testified that Frocse “had commented that she had

problems with hcadaches.” (Tr. at 2829.) That led to the

following exchange:

“Was a headache an alteration of consciousness,” defense

counsel wanted to know?

“It's a neurologic symptom.” Lantsberger replicd.

But “|I]s it an alteration of consciousness.” defense

counscl asked?

“Technically of consciousness, no,” Lantsberger said. Id.

(c) Redirect examination of Dr. Lantsberger

On redirect. Lantsberger reversed her position on

altcration of consciousness. With respect to that phenomenon. she

now said. “That's often onc of the symptoms of the chemical that

is affecting the brain is by giving headaches.” (Tr. at 3092.)

After soliciting that statement. counsel for the plaintiffs

asked. “Did you take into account her altcration in level of

consciousness and her low intellect in forming your opinions as to

Kathrene Frocse?” Id.

“Yes.” Lantsberger replicd. “I did.” Id.

At that point. plaintiffs’ counscl broke off her linc of

questioning. Although she suggested that she would “come back

to that.” she never asked Lantsberger whether Froese’s alteration

of consciousness causcd a specific injury.

The final issuc addressed on redirect was that of

“aggravation.” Counsel for the plaintiffs asked, “Would vou

please tell the jury if you have an opinion. based upon reasonable

medical probability. s to Kathrenc Howell Froese as a whole

person in relationship to her condition and her exposure to the

chemicals at the 1988 clean-up at the Kaiser Trentwood plant?™

(Tr. at 3144.)

After an objection, Lantsberger responded by saying. “As

I had indicated, I have to look at these people as a total. And I

have to look at all of the information as an agercgate. And asa

result of putting all of the information together, I believe that the

problems that she is expericncing are an aggravation of her

preexisting condition. Aggravated as a more probable than not

causc from her exposure."” Id.

ORDER 15

PNP IAL INNS Vr 00s.

A-31

6. Merlin Carlson

Two experts analyzed the symptoms that Merlin Carlson

reported. One was Dr. Danicl Goldstein. Although the defendants

challenge the admissibility of his testimony on a number of other

grounds, thcy concede that he testified - on a more probable than

not basis — that Mr. Carlson sustained brain damage duc to

solvent exposure. (Defendants’ Memorandum in Support of

Renewed Motion at 82.)

The other expert who analyzed Mr. Carlson's symptoms

was Dr. Lantsberger. Not only did she testify about respiratory

problems (Tr. at 1922-23, 1925-26). but she also testificd about

fatigue, headaches. “overall body pain,” and “whole person”

aggravation. (Tr. at 1926. 3143.)

(a) Direct examination of Dr. Lantsherger

On direct, Dr. Lantsberger was asked whether she had an opinion

regarding the cause of Mr. Carlson's “problems with breathing.”

(Tr. at 1925.) She said that she had reached the “same

conclusion” with respect to his “breathing problems” that she had

reached with respect to his “brain injurics.” namely. “|t]hat he has

a similar pattern as the other coworkcrs. and that the overall

cpidemilogical data Icads me to belicve that his exposure in the

work site is the joining factor of all of the physical problems.”

(Tr. at 1926.)

Next. Dr. Lantsbergcr was asked whether there was a

rclationship between Carlson's complaints of “fatigue. hcadachc.

and] overall body pain” and “exposure to chemicals in 1988.” Id.

She replicd. in part, “The other coworkers complaining of the

samc, similar respiratory. cognitive. joing and body aches. leads

me to assume based on epidemiological look at the exposure. the

symptoms beginning about he same time frame and continuing

subscqucntly Icads me to belicve that they are associated with the

exposure.” (Tr. at 1926-27.)

(b) Cross-examination of Dr. Lantsberger

Dr. Lantsberger acknowledged that it was during August. 1991.

that she last made a note regarding Carlson's complaint if of

breathing problems. (Tr. at 2935.) She further acknowledge that

Carlson does not have Reactive Airways Dysfunction Syndrome.

(Tr. at 2935). and that she has never diagnosed asthma. Id.

With respect to “bone pain and joint aches.” she said, “I

don t know what caused these guys to have the aches and pains,

ORDER 16

A-32

but I do now that a significant number of the workers did have

them.” (Tr. at 2936.)

(c) Re-direct examination of Dr. Lanisherger

Dr. Lantsberger denicd that it made sense to look at

Merlin Carlson in terms of “isolated incidences |sic].” (Tr. at

3142-43.) Over objection, she testificd. “In terms of his entire

exposure. his preexisting as, as a consequence of his exposure, |

think that his preexisting problems were aggravatcd by his

cxposure at Kaiser on a more probable that not basis.” (Tr. at

3143.)

7. Deborah Williams

A number of experts testified for Ms. Williams. including

Drs. Lantsberger, Morton and Keppel. Although much of Dr.

Lantsberger’s testimony may be construed as foundation for

opinions given by other experts, she was asked to render opinions

of hcr own. For example. during redirect, she reiterated her theory

of aggravation, saving. “I think in terms of Debbic. again... .

taking it in totality, that on a more probable than not basis. I think

that her conditions as we have outlined them have been aggravated

by her exposure at, by her work at the Kaiser plant.” (Tr. at

3145 )

8. Ruth Hopkins/John Hopkins

The defendants concede that the Hopkins’ principal claims

involved respiratory injuries. The defendants arguc, however, that

the Hopkins also maintained a claim for brain damage. The

record reflects the following concerning the defendants”

contention:

During direct examination. Dr. Samucl Milham was asked

by counsel for the Hopkins to read the conclusion of a study to the

jury. Milham relied. in part. “|T |he severe neurologic injurics

suffered by the workers in the incident arc sobcring reminders that

casily preventable organic solvent related occupational illness

continues to occur in a highly developed country in the late 20"

century.” (Tr. at 1436.) (Emphasis added.)

In addition. the Hopkins” attorney participated actively in

the cross-cxamination of Dr. Neil Rosenberg. the defendant's

expert on the subject of solvent-induced organic brain damage.

(Tr. at 9473-89. 9529-40.) He questioned Rosenberg about

neurologic injury in gencral. (sec. ¢.g.. Tr. at 9481-82). and Mrs.

Hopkins’ case in particular--including magnetic resonance

ORDER 17

aU ake anthtaninil er sinellicd + sd pombe sited

a RA. Beet ae i AL

A-33

imaging (“MRI”.) (Tr. at 9538-39.) He also had Rosenberg

confirm that his testimony had nothing to do with the

“pulmonary aspect of this case.” (Tr. at 9540.)

During closing. the Hopkins’ attorncy devoted most of

his time to pulmonary complaints. He did not restrict himsclf to

that subject. however. For cxample, he asked the jury to think

about Ruth Hopkins’ “memory problems.” (Tr. at 12022.) Later.

he said, “These chemicals can hurt you. They can hurt your

organs. They can hurt your brains.” (Tr. at 12028.)

It was at this point that he asked the jury to discount Dr.

Rosenberg s testimony about magnetic resonance imaging and

Tolucne abusers. In essence, he argued that his clicnts” exposure

to organic solvents was distinguishable from that of the Toluene

abuscrs Dr. Rosenberg had described. thercby implving that it was

of no significance that Mrs. Hopkins’s MRI was normal. (Tr. at

12028-29.)

D. Sufficiency of Certain Expert Opinions (Analysis)

A motion for judgment as a matter of law may be

granted when “a party has been fully heard with respect to an

issuc and there is no /egally sufficient evidentiary basis for a

reasonable jury to have found for that party with respect to that

issuc.... Fed.R.Civ.P. 50(a)(1). See Monticl v. City of Los

Angeles, 2 F.3d 335, 342 (9" Cir.1993). The moving party must

demonstrate that insofar as the verdict is concerned, the evidence

permits but onc reasonable conclusion. Conner v. Sakai, 15 F.3d

1463. 1467 (9" Cir.1993).

1. Dan Glass

Dr. Lantsberger examined Mr. Glass on three

occasions. The first cxamination occurred during October, 1989:

the second during May, 1990: and the third during September.

1991. Mr. Glass did not report respiratory problems on those

occasions, nor did Dr. Lantsberger diagnose pulmonary injury or

disability. Given the record as it now exists. a reasonable jury

could not have found for Mr. Glass on that issuc.

With respect to Mr. Glass” heart palpitations. Dr.

Lantsberger could only say that they may have been related to his

industrial cxposurc. Testimony of that sort is legally insufficient.

Under Washington law. an opinion that a “physical disability

‘might have’ or ‘possibly did® result from the hypothesized cause™

is nothing more than conjecture. O'Donoghue v. Riggs. 73 Wn.2d

ORDER 18

A-34

814. 824, 440 P.2d 823 (1968). “To remove the issue from the

rcalm of speculation, the medical testimony must at least be

sufficiently definite to establish that the act complained of

‘probably or ‘more likely than not’ caused the subsequent

disability.” Id.

Regarding headaches and memory loss, Dr. Lantsberger

was forced to concede that she had been unable to find a cause-

and-cffect relationship between Glass” participation in the Kaiscr

cleanup and his subsequent complaints. Thus. her testimony

concerning those conditions falls short of the O°’ Donoghuc

standard.

Dr. Lantsberger attempted to bridge that causal gap by

suggesting that Glass’ “whole person” had becn “aggravated.”

However, aftcr Daubert and Claar. it is difficult to sec how

Lantsberger’s fall-back thcory can be considered “scientific

knowledge.” If none of Glass’s specific symptoms can be linked

to the cleanup on a more-probable-than-not basis. how is it

possible that his whole person was aggravated?

It is the plaintiffs’ burden to demonstrate that Dr.

Lantsberger arrived at her conclusions “using scientific methods

and procedures.” and that her “conclusion [arc] not mere

subjective beliefs or unsupported speculation.” Claar, 29 F.3d at

502. Insofar as Lantsberger’s aggravation theory is concerned.

the plaintiffs have failed to satisfy that requirement.

In conclusion, a reasonable jury could not have found

for Glass on any of his claims. Dr. Lantsberger’s causation

testimony was legally insufficient, and her aggravation theory is

not scientific knowledge.

2. David Schudel

It is undisputed that Mr. Schudel did not sustain

neurologic injury as a result of his participation in the Kaiser

cleanup. A reasonable jury could not have found for him on that

issuc. Similarly, although Dr. Lantsberger suggested that

Schudcl’s exposure to chemicals caused actual pulmonary injury.

she could say only that his “lung condition” was “related to his

exposures. Given Lantsberger’s uncertainty, a finding for

Schudel on a claim of actual pulmonary injury would have been

nothing more than speculation. O° Donoghuc,. 73 Wn.2d at 824.

Two possibilitics remain. Onc is that Mr. Schudcl has

developed a conditioned response to chemicals as a result of

ORDER 19

alien

A-35

working at Kaiser. The othcr is that his whole person was

aggravated. The latter has already been discussed. It is not sound

science. With respect to the former (i.c.. conditioned responsc).

there arc two serious questions. First. is Dr. Lantsberger qualified

to render an essentially psychiatric opinion? Second. is there

anything in the record to indicate that her opinion reflects

scientific knowledge”

It is clear from Dr. Lantsberger’s testimony that David

Schudel’s response to odors is psychological in nature.

Notwithstanding its psychological nature. plaintiffs counsel made

no effort to show that Dr. Lantsbergcr is qualificd to diagnosc or

treat psychological disorders. Indeed. she freely admitted that she

is not an expert in psychiatry. (Tr. at 2337.)

Even if Dr. Lantsberger was qualified to render a

psychiatric opinion of the sort she gave here, plaintiffs counsel

failed to establish that Lantsberger’s conclusion reflects sound

scicncc. Not onc journal article was offered in support of Dr.

Lantsberger’s opinion. nor was an cffort made to satisfy any of the

other Daubert criteria. As a result. Dr. Lantsberger’s opinion fails

to pass Rule 702 muster.

3. Craig Thompson

Dr. Lantsberger failed to link any of Mr. Thompson's

specific complaints to the Kaiser project on a more-probable-than-

no basis. Her fall-back was “aggravation.” a theory which docs

not mect the standards for admissibility cstablished by Rule 702

It follows that the jury's verdict in Mr. Thompson's favor was

based upon speculation, nothing more.

4. Tim Schudel

Dr. Lantsberger acknowledge that Mr. Schudel “needed

to have a pulmonary work-up by a pulmonologist.” but that she

“never did get him in to sce one.” Notwithstanding the absence of

expert pulmonological evidence, Lantsberger suggested that

Schudel developed respiratory problems as a result of his

exposure to “chemicals.” In that regard. however, she could say

only that he told her that he had not had problems before Kaiser

and that he did have problems after Kaiser.

That Mr. Schudcl’s symptoms appcared after he worked

at Kaiser may establish a temporal link between work and

symptoms. but it docs not establish a causal link. Sec Rohrbough

v. Wycth Laboratories, Inc., 916 F.2d 970. 974 (4" Cir.1990)

ORDER 20

A-36

(mere fact that a child suffered seizures after receiving a

vaccination insufficient to establish causation). Dr. Lantsberger’s

testimony on that point is therefore insufficicnt.

Tim Schudel obtained ncuropsychological testing.

While the psychologist report that it was possible that Schudel’s

previous Icarning disabilitics had becn aggravated, he could not

say that aggravation was reasonably certain. Indeed, as soon as

Schudcl was counscled regarding the report's findings. he quit

complaining of memory loss. Given those undisputed facts. a

rcasonable jury could not have found for Mr. Schudcl on the

question of neurological injury.

That leaves Dr. Lantsberger’s aggravation theory. It is

neither scientifically nor causally sufficient to suport the jury's

verdict

5. Kathrene Froese

A reasonable jury could have found for Ms. Froese on

her respiratory claim. Were that her only claim. no further

discussion would be necessary. However. it was not. Dr.

Lantsberger was asked to testify’ regarding Ms. Frocsc’s

complaints of rash. memory loss. and headaches. With respect to

these symptoms, Dr. Lantsberger was cither never asked about a

causal relationship. or if she was. her testimony fell short of the

O'Donoghue standard

6. Merlin Carlson

Mr. Carlson's principal claim was for toxic

enccphalopathy. He did not stop there. however. Dr. Lantsberger

reported breathing problems. fatigue. headaches. and “overall

body pain.”

With respect to respiratory complaints. Dr. Lantsberger

was forced to concede that Mr. Carlson does not have Reactive

Airways Dysfunction Syndrome or industrially induced asthma.

Similarly, with respect to “bone pain and joint aches.” she could

only say, “I don’t know what caused these guys to have the aches

and pains. but I do know that a significant number of the workers

did have them.” Given the record, a reasonable jury could not

have found for Mr. Carlson on his non-neurological claims.

7. Deborah Williams

Ms. Williams presented claims for organic brain

damage and respiratory injury. A number of experts testificd on

her behalf. Although Dr. Lantsberger opined that Ms. Williams’

ORDER 2]

A-37

“conditions” were aggravated by work at Kaiser. it is questionable

whether her testimony would have had appreciable impact on the

jury s verdict.

8. Ruth Hopkins/John Hopkins

Based upon the evidence presented by the Hopkins, their

cross-cxamination of Dr. Rosenberg. and the manner in which

they argucd their case. a reasonable jury would have assumed the

Hopkins were making a claim for brain damage. Granted. the jury

may not have viewed it as the Hopkins’ principal claim. both the

jury would have understood that it was a very real part of the

Hopkins case. Therein lics the problem. Having chosen to make

a claim for solvent-induced brain damage. the Hopkins were

obligated to prove it. They failed to do so. A reasonable jury

could not have found that the Hopkins suffered neurologic injuries

as a proximate cause of the icfendants’ negligence. The

defendants are thercfore entitled to judgment as a matter of law on

that particular claim

E. Sufficiency of Certain Expert Opinions (Conclusion)

In view of the foregoing. the defendants are entitled to

judgment as a matter of law on a number of claims. Thev include

the following: all claims asserted by Dan Glass. David Schduel.

Craig Thompson and Tim Schudcl: all non-respiratory claims

asscricd by Kathrenc Froese: all non-ncurological claims asserted

by Mcrlin Carlson: and all non-respiratory claims asserted by the

Hopkins

Although several claims must be dismissed. several

remain. The next question is whether a new trial is necessary.

Approximatcly six wecks prior to trial. the Court asked

the plaintiffs to list their claims against the defendants. (Order Re

Daubert Procedure (Ct. Rec. 326) at 7.) The plaintiffs declined to

do so. (Plaintiffs Lists of Claims (Ct. Rec. 334).) Instead. they

presented the jury with a long list of symptoms. only some of

which could be connected to the plaintiffs’\ work at Kaiscr on a

more probable than not basis. Furthermore. when it came time to

instruct the jury, the plaintiffs rejected a suggestion that the jurors

be asked to decide specific claims.

The plaintiffs’ choice of tacties has placed the Court in

an awkward position. Because the jurors were not asked to return

verdicts with respect to cach plaintiff's individual claims. it is now

impossible to scparate the whcat from the chaff. Thus. the Court

ORDER 22

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is forced to conclude that the verdicts in favor of Kathrene Froese.

Mcrlin Carlson. Ruth Hopkins and John Hopkins arc too tainted to

stand. For that reason. the plaintiffs” remaining claims must be

re-tricd.

Ill. DEFENDANTS’ MOTION FOR NEW TRIAL

The defendants give twelve reasons why the Court

should order a new trial. Fed.R Civ.P. $9 They include the

following: First. by urging the jury to “send a message to the

defendants. the plaintiffs injected irrelevant. arbitrary~ and

punitive considerations into the jury's deliberations. Sccond. the

Court failed to instruct the jury on Washington's medical

causation standard. Third. the Court's instructions with respect to

state and federal safety regulations were in crror. Fourth. the

Court failed to instruct the jury on the limited dutics of the

employer of an independent contractor. Fifth. the plaintiffs

violated a pretrial order by introducing evidence regarding Danicl

Skeman. Sixth. the Court applicd Bryan v. John Bean. 566 F 2d

$41 (5" Cir.1978). in an improper manner. Seventh. the

defendants should have been allowed to cross-examine the

plaintiffs regarding inconsistent statements made to Diane Nebel

Eight. the plaintiffs should not have been allowed to offer evidence

regarding symptoms expericnced by non-plaintiff workers. Ninth.

the plaintiffs were permitted to suggcst that a defense expert had

no basis for opining that Mrs. Hopkins’s depression had a cause

other than that suggested by her experts. Tenth. the jury's verdict

Was against the weight of the evidence. Eleventh. the damages

awarded were excessive both as a matter of fact and a matter of

law. Twelfth. the defendants® right to cross-examination was

violated

Giverrthe Court's various rulings with respect to the

defendants" motion for judgment as a matter of law. the

defendants’ alternative request for a new trial is moot with respect

to all but Deborah Williams. Insofar as she is concerned. the

defendants” motion is denicd

Nm

tw

ORDER

A-39

IV. PLAINTIFFS’ REQUEST FOR ATTORNEYS’

FEES AND COSTS

On July 22. 1994, the plaintiffs filed a timely request

for attorneys’ fees, together with a request for costs bevond those

normally awarded to prevailing partics. Fed.R.Civ.P. 53(d). The

defendants have objected to both.

Since then, the Court has granted the defendants” Rule

50(b) motion in substantial part. dismissing a number of the

—plaintiffs’ claims. Only the verdict in favor of Ms. Williams

remains intact. However. because it docs. she may be entitled to

fees and costs.

The Court has two options concerning Ms. Williams's

request. It can defer ruling until aftcr the appellate process has

run its course, or it can decide the matter of fecs and costs at this

juncture. Fed.R.Civ.P. 58 advisory committec’s note (1993

amendment).

The latter is the best course. This lawsuit has gencrated

a number of complex legal questions. among them whether Ms.

Williams is entitled to fees and costs. Instead of presenting them

to the Court of Appeals piccemcal. it is best to resolve as many as

possible now so that they may be reviewed together. Id. (“in many

cases it may be more efficient to decide fee questions before an

appeal is taken”).

One final issuc must be addressed before turning to the

merits of Ms. Williams's request- -the matter of the Court's

jurisdiction. As the advisory committee noted. post-trial fec

requests Can create complicated jurisdictional questions. To avoid

them, Rule 58 permits a district court to treat a request for fees as

a Rule 59 motion and extend the time for appeal from the

underlying judgment. Fed.R.Civ.P. 58. It is appropriate to do so

here, and the Court so orders.

A. Attorneys’ Fees

Ms. Williams submits that her request for fees may be

granted under cither of two theorics. One is based upon state law.

the other upon federal law. The two thcories will be examined

separately.

(a) State Law

When a request for attorneys’ fecs is made in a div crsity action.

and the request arises from the substance of a state-law claim. the

ORDER 24

A-40

request is governed by the law of the forum state. Price v.

Scydel, 961 F.2d 1470, 1475 (9" Cir.1992). Washington follows

the “American Rule.” Dayton v. Farmers Insurance Group, 124

Wn.2d 277, 280, 876 P.2d 896 (1994). According to that rulc. a

court has not power to award attorney fees as a cost of litigation

abscnt a contract. a statute. or some recognized principle in

equity. Id. Herc. there is neither a contractual nor an equitable

basis for awarding fees. If Ms. Williams is to recover attorneys”

fees. she must cite a statute which authorizes them. She attempts

to do just that.

According to Ms. Williams. the defendants violated the

Washington Industrial Safety.and Health Act (“WISHA™)!4 by

failing to provide adequate wamings regarding the solvents used

in the cleanup. She does not assert that the defendants are liable

for fecs under WISHA . however. Instcad, she argues that the

defendants are liable for attornevs’ fees under one of three

entircly separate statutes- - the Worker and Community Right to

Know Act..!> the Hazardous Waste Management Act. 16 or the

Model Toxics Control Act.!7

Although ingenious. Ms. Williams's state-law theory is

without merit. First. the jury did not find that the defendants

violated either WISHA or any regulation promulgated

thereunder. Thus. there would appear to be no basis for Ms.

Williams's assertion that the defendants violated that statute.

Second. while it is truc that the Worker and Community Right to

Know Act. the Hazardous Waste Management Act. and the

Modcl Toxics Control Act authorize fees in certain limited

situations, there is nothing in them to suggest that their

(respective) fee provisions can be invoked based upon a violation

of an entirely separate statute. See. c.g.. RCW 49.70.150 (a civil

action may be brought to “compel compliance with the provisions

of this chapter or any rule promulgated under this chapter”):

RCW 70.105.097 (a “person injured as a result of a violation of

this chapter or the rules adopted thereunder may bring an action .

.. ). RCW 70.105D.00 (“a person may bring a private right of

action . . . for the recovery of remedial action costs”). Finally,

'4 RCW Chapt. 49.17

'S RCW Chapt. 49.70

16 ROW Chapt. 70.105

17 RCW Chapt. 70.105D

ORDER 25

A-41

neither Ms. Williams nor any of the other plaintiffs included the

matter of attorneys’ fees in the pretrial order. Sce Price Dev. Co.

v. Redevelopment Agency. 852 F.2d 1123. 1128 (9" Cir.1988)

(denying request for fees where pretrial order contained no

indication that partics would be secking_fecs).

(b) Federal law

Ms. Williams also secks fees under 28 U.S.C.§ 1927

That statute provides that an “attorney . . . who so multiplies the

procecdings . . . unreasonably and vexatiously may be required by

the court to satisfy personally the excess costs. expenses, and

attorneys feces reasonably incurred because of such conduct.”

Without question. the attorneys for the defendants

mounted a very aggressive defense on behalf of their clients.

There is no evidence. however. that they acted in bad faith. For

that reason. § 1927 is inapplicable here. Sce MGIC Indem. Corp.

v. Moore. 952 F.2d 1120, 1122 (9" Ciri.1991) (§1927 requires a

finding of bad faith)

B. Costs

In light of the Court's prior rulings. it is clear that Ms

Williams will need to revise her request for costs. She should

consider the following in doing so:

Ms. Williams asked for expert witness fees. Since none

of her witnesses were court-appointed. she is limited to the sums

authorized by 28 U.S.C. § 1821. Sce Association of Flight

Attendants v. Horizon Air. 976 F.2d 541. 551-52 (9" Cir.1992)

Ms. Williams secks reimbursement for obtaining copics of

depositions. Although district courts have the authority to tax

such costs. Alflex Corporation v. Underwriters Laboratories, 914

F.2d 175. 177 (9" Cir. 1990). cert.denicd. US. 112

S.Ct. 61. 116 L.Ed.2d 36 (1991), the exercise of that discretion is

often guided by local rule. In this district. “|s]tenographic fees for

depositions may be allowed only when the deposition is used at

trial or hcaring for substantive. as opposed to impeachment

purposes. Only the original deposition shall be taxed.” Local

Rule (“LR”) 54(f) (2).

In addition. Ms. Williams may be asking for other costs

associated with the taking of depositions. If so, she must

demonstrate that the costs were necessarily incurred. Sce Smith v.

Hughes Aircraft Co.. 22 F.3d 1432. 1438-39 (9" Cir. 1993)

Finally, Ms. Williams secks compensation for expenses

ORDER 26

A-42

assumed in obtaining daily transcripts of court procecdings.

Because of the length and complexity of the casc. Ms. Williams is

entitled to an award of costs for thosc portions of the daily

transcript necessary for presentation of her claims. Sce

Independent Iron Works. Inc. v. United States Steel Corporation.

322 F.2d 656. 678 (9" Cir.) (trial transcripts were reasonably

necessary given the complexity and length of procecdings). cert.

denied. 375 U.S. 922. 84 S.Ct. 267. 11 L-Ed.2d 165 (1963)

V. MOTION TO AMEND VERDICT

Kaiser Aluminum and Chemical Corporation is onc legal

entity. Kaiscr Aluminum Corporation is another. Since at Icast

October. 1991. it is Kaiser Aluminum and Chemical Corporation

which has been one of the two named defendants in this action.

The jury returned its verdict on Julw 13. 1994. Judgment

was entered that same day. The judgment refers to Kaiser

Aluminum Corporation, not Kaiser Aluminum and Chemical

Corporation

Defendant Kaiser Aluminum and Chemical C orporation

now moves the Court. pursuant to Rule 60. to amend the judgment

to reflect its true name. The plaintiffs do not object.

Kaiscr aluminum and Chemical Corporation is correct

The wrong corporate entity was listed in the judgment. Asa

result. its motion will be granted and the judgment modified

accordingly

VI. MOTION TO SET DISCOVERY HEARING

The Plaintiffs move the Court to set a hearing to

investigate their allegations that the defendants abused the

discovery process. No authoritics have been cited in support of

this request

Given the Court's previous rulings. the plaintiffs’ motion

1S (at best) premature. Consequently. their motion will be denicd.

ORDER 27

A-43

VII. MOTION TO STAY EXECUTION OF

JUDGMENT

The defendants move the Court to stay any procecdings to

enforcement the judgment pending resolution of their post-trial

motions. Fed.R.Civ.P. 62(b). With entry of this order, the

defendants’ request becomes moot. It will therefore be denicd.

IT IS HEREBY ORDERED:

|. The plaintiffs’ motion to strike defense motions as

untimely (Ct. Rec. 536) is denied.

2. The defendants ‘motion to strike plaintiffs”

memorandum (Ct. Rec. 565) is denied.

3. The plaintiffs’ motion to strike reply (Ct. Rec. 552) is

denied.

4. The defendants’ motion for judgement as a matter of

law (Ct. Rec. 488) is denied in part and granted in part. The

judgments entered hercin are re-opened and modificd as follows:

(a) The defendants are granted judgment as a matter of

law on all claims asserted by Dan Glass. David Schudel. C raig

Thompson and Tim Schudel. Those claims are dismissed with

prejudice.

(b) The defendants are granted judgment as a matter of

law on all non-respiratory claims asserted by Kathrene Froese.

Those claims are dismissed with prejudice.

(c) The defendants arc granted judgment as a matter of

law on all non-ncurological claims asserted by Merlin Carlson.

Those claims are dismissed with prejudice.

(d) The defendants arc granted judgment as a mattcr of

law on all non-respiratory claims asserted by Ruth Hopkins and

John Hopkins. Those claims are dismissed with prejudice.

5. The defendants are granted a new trial on all remaining

claims.

6. The defendants’ motion for new trial or alternative

rclicf (Ct. Rec. 486) is denied.

7. The plaintiffs’ timely request for attorneys” fees and

costs shall have the same effect under Fed.R.App.P. 4(a)(4) as a

Rule 59 motion. and the period for filing a notice of appcal shall

be extended accordingly.

ORDER 28

ee

A-44

8. The plaintiffs’ request for attorneys’ fees and costs is

denied in part and granted in part. Ms. Deborah Williams is

directed to submit a revised cost bill.

9. Defendant Kaiser Aluminum and Chemical

Corporation's motion to amend or correct judgments (Ct. Rec.

513) is granted. The judgments entered hercin shall refer to

“Kaiser Aluminum and Chemical Corporation.” not “Kaiser

Aluminum Corporation.”

10. The plaintiffs’ motion for order shortening time (Ct.

Rec. 555) is denied.

11. The plaintiffs’ motions for order sctting hearing on

discovery abuses (Ct. Recs. 534 and 563) are denied.

12. The defendants’ motion for stay of proceedings to

enforce judgments (Ct. Rec. 490) is denied.

IT IS SO ORDERED. The Clerk is hercby directed to

file this order. enter judgment accordingly. and furnish copies to

counsel.

DATED this 22 day of November 1994.

s/

FRED VAN SICKLE

United States District Judge

ORDER 29

Linh Naa as

A-45

FILED IN THE

US DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

JAN 17 1995

JAMES R. LARSEN. CLERK

_ DEPUTY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DAVID SCHUDEL. et. al.. ct. NO. CS-92-081-FVS

UX...

Plaintiffs.

V.

GENERAL ELECTRIC ORDER RE MOTIONS

COMPANY and KAISER TO AMEND AND

ALUMINUM CORPORATION. | CERTIFY

Defendants.

BEFORE THE COURT arc motions to amend Order Re

Post-Trial Motions.!8 and to authorize appcals from it. All

motions were heard without oral argument on January 13. 1995.

CLAIM OF SANDRA SCHUDEL

Relief Requested

Mr. Timothy Schudel alleged that he suffered various

injuries while working on the Kaiser cleanup project. His wife.

Sandra Schudel. brought separate claims for loss of consortium

based upon the injuries her husband alicgedly suffered. Mrs.

Schudel’s loss-of-consortium claims were not addressed in the

Order Re Post-Trial Motions. Now that Timothy Schudel’s

claims have been dismissed with prejudice. the defendants move

the Court to dismiss Sandra Schudcl’s loss-of-consortium claims.

Ruling

The defendant's motion to amend (Ct. Rec. 574) is

granted. Ms. Sandra Schudcl’s claims against the defendants will

be dismissed with prejudice.

18 The order was entered on November 25, 1994 lt is docketed as pleading

57}.

ORDER |

A-46

MOTION FOR NEW TRIAL

Relief Requested

After the jury returned its verdicts, the defendants moved

for a new trial (Ct. Rec. 486). Except in the case of Deborah

Williams. the Court did not address the merits of the defendants’

motion. (In her case. the defendants motion was denicd.) The

defendants now move the Court. pursuant to Fed.R.Civ.P.

50(c)(1). to issue a conditional ruling with respect to the other

plaintiffs.

Ruling

The defendant's motion for new trial will be denied with

respect to all plaintiffs.

HOPKINS’ MOTION TO RECONSIDER

Relief Requested

Plaintiffs Ruth Hopkins and John Hopkins move the

Court to reconsider its decision vacating the verdicts in their favor

and ordcring a new trial. If the Court declines to do so. Ruth

Hopkins moves the Court to clarify its order regarding her claims.

She notes that the Order Re Post-Trial Motions dismisscs all non-

respiratory claims. She wants to know whether the Court intended

to preclude her from recovering for depression (allegedly)

spawned by her respiratory problems.

Ruling

The Hopkins" motion for reconsideration (Ct. Rec. $80) is

denicd except with respect to Ruth Hopkins’s request for

clarification of the Court's ruling regarding recovery of damages

for depression. If. upon retrial. Ruth Hopkins proves that she

suffered depression as a result of respiratory problems caused by

the defendants, she may recover damages for her depression.

RULE 54(b)

Relief Requested

Both sides move the Court to authorize appcals of the |

judgments adjudicating the claims of Deborah Williams. Dan |

Glass. David Schudel, Craig Thompson, Tim Schudel. and Sandra

ORDER 2

ee ae ae

——, oe of

A-47

Schudel. Fed.R.Civ.P. 54(b) (1994).!9 In addition, plaintiffs

Kathrene Froese, Mcrlin Carlson, Ruth Hopkins, and John

Hopkins move the Court to permit them to appeal the order

granting a new trial.

Analysis

Under Rule 54(b), the Court must first determine whether

a final judgment exists. Curtiss-Wright Corp. v. Gencral Elec.

Co.. 446 U.S. 1. 7. 100 S.Ct. 1460, 1464. 64 L.Ed.2d 1 (1980).

Once that task has been completed. the Court must decide whether

there is any just reason to delay the appellate process. Id. at 8.

100 §.Ct. at 1465. In doing so, the Court must consider both the

administrative impact of releasing claims for appeal. and “the

equitics involved.” Id. at 8. 100 S.Ct. at 1465.

1. Existence of final judgments

The claims of ten plaintiffs are at issuc in this action.

Now that the Court has entered its Order Re Post-Trial Motions.

the claims of Deborah Williams, Dan Glass. David Schudel. Craig

Thompson. Tim Schudel, and Sandra Schidel have been fully

adjudicated. What of the claims of Kathrenc Froese. Merlin

Carlson. Ruth Hopkins. and John Hopkins?

In its order. the Court ruled that these four plaintiffs (ic.

Kathrene Frocse. Merlin Carlson. Ruth Hopkins. and John

Hopkins) could not recover damages for certain (alleged) injuries.

The judgments which had been entered in their favor were vacated.

and a new trial was ordered. In other words. the order limited

damages. but left their negligence claims otherwise unresolved

pending a new trial. As a result. insofar as Kathrene Froese.

Merlin Carlson, Ruth Hopkins. and John Hopkins are concerned.

the ordcr is not a final judgment. Sec Arizona State Carpenters

Pension Trust Fund v. Miller. 938 F.2d 1038. 1040 (9" Cir.1991)

(holding that an order dismissing a claim for punitive damages

was not final).

2. No just reason for delay

(a) Dan Glass. David Schudel. Craig Thompson. Tim

Schudel, and Sandra Schudcei

19 Rule 54(b) states, in pertinent part, “When more than one claim for relief is

presented in an action, ..., or When multiple parties are involved, the court

may direct the entry of a final judgment as to one or more but fewer than all of

the claims or parties only upon an express determination that there is no just

reason for delay and upon an express direction for the entry of judgment.”

ORDER 3

(PO em en te ay ee hee 8 eet ON ter see ee

A-48

The record is now complcte with respect to these five

claims. Nothing that might occur in district court will affect

appcllate review of these dismissals. It is now up to the Court of

Appcals to determine whether cach dismissal was proper. In

doing so. the Court of Appeals will have to review cach claim

scparately. Consequently. authorizing these five plaintiffs to

appeal will not result in unwarranted duplication of appellate

cffort.

(b) Deborah Williams

The verdict in favor of Ms. Williams was upheld.

Appcllate review of that verdict will facilitate adjudication of

those claims which must be retried.

3. The four remaining claims

The Court ordered a new trial with respect to the claims of

Kathrene Froese. Merlin Carlson, Ruth Hopkins, and John

Hopkins. An order granting a new trial is interlocutory. As a

general rulc, it is not appcalable under 28 U.S.C. §1291. Roy v.

Volkswagenwerk Aktiengescllschaft. 781 F.2d 670. 671 (9""

Cir.1985): Eaton v. National Stccl Products Company. 624 F.2d

863. 864 (9" Cir.1980). There is an cxception to that rule,

however. An order granting a new trial may be appealed if the

district court no longer had jurisdiction to do so. Sec Eaton. 624

F.2d at 864.

Here. the plaintiffs moved to strike the defendants” post-

trial motions. arguing that they were untimely. The Court denied

the plaintiffs’ motion. and granted post-trial relicf. Should the

Court of Appcals disagree with this Court's asscssment of the

timcliness of the defendants” post-trial motions. the Court of

Appcals will have to determine whether this Court had authority to

enter its Order Re Post-Trial Motions. Thus. the Eaton exception

applics.

Ruling

There is no just reason to delay appeal of the Order Re

Post-Trial motions.

COST BILLS

Plaintiff Deborah Williams has submitted a revised cost

bill. No objections have been filed. Ms. William's request will

therefore be approved.

The defendants are now the prevailing partics with respect

ORDER 4

a

A-49

to the claims asserted by Dan Glass. David Schudel. C raig

Thompson, Tim Schudel, and Sandra Schudel. The defendants

move the Court (Ct. Rec. 274) for an order indicating that they

have ten days from Rule 54(b) certification to file cost bills. Their

request will be granted.

IT IS HEREBY ORDERED:

1. The defendants” motion to amend (Ct. Rec. 574) is

granted. Ms. Sandra Schudel’s claims against the defendants are

dismissed with prejudice.

2. The defendants* motion for a conditional ruling (Ct

Rec. 574) is granted in part. The defendants” prior motion for a

new trial (Ct. Rec. 486) is denied with respect to all plaintiffs.

3. The Hopkins’ motion for reconsideration (Ct. Rec.

580) is denicd except as indicated above.

4. The parties respective motions for Rule 54(b)

certification (Ct. Recs. 574. 577) are grantcd.

(a) There is no just reason to delay appellate review of

the Court's Order Re Post-Trial Motions (Ct. Rec. 571): and

(b) Since the Clerk has already entered judgment as

directed by the Order Re Post-Trial Motions. that judgment (Ct

Rec. 572) will become the final judgment for purposcs of Rule

54(b) upon entry of this order.

5. Deborah Williams's cost bill is approved

6. The defendants are to submit a cost bill with respect

to the claims of Dan Glass. David Schudel. Craig Thompson. Tim

Schudel. and Sandra Schudcl within ten days of entry of this

ordcr. Ise

7. Any other pending motions are denied as moot.

IT IS ORDERED. The Clerk is hereby directed to file

this order. furnish copics to counsel. and close the case

DATED this 13 dav of January 1995

s/

FRED VAN SICKLE

United States District Judge

ORDER S

FILED

MAR 24 1995

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 94-36250

95-35010

95-35092

95-35145

DAVID SCHUDEL. ct al.

Plaintiffs/Appcellants/

Cross-Appellces.

)

)

)

)

)

) DC# CV-92-81-FVS

VS. ) Eastern Washington

) (Spokanc)

GENERAL ELECTRIC )

COMPANY. a forcign )

)

)

)

)

)

corporation. ct al.. ~

ORDER

Defendants/Appellecs/

Cross-Appellants.

Before: SNEED. POOLE. and BRUNETTI. Circuit Judges.

Appeal Nos. 94-36250 and 95-35010 are dismissed as

duplicative. All pending motions in these appeals are denied as

moot.

Appellants’ motions filed in appcal No. 95-35092 to a

rcmand this casc to the district court are denied without prejudice

to the partics raising this or any jurisdictional issuc in the briefs on

the merits.

The motion of cross-appellec Deborah Williams to

dismiss cross-appeal No. 95-35145 for lack of a timcly notice of

appeal is denied. Sce Fed. R. App. P. 4(a)(4).

A-51

Cross-appcllant General Electric's motion to dismiss

appeal No. 95-35092 for lack of jurisdiction is denied. See

Freeman v. Hittle, 747 F.2d 1299, 1301-02 (9" Cir. 1984). 94-

36250, 95-35010, 95-35092, 95-35145

A

Appcllant/Cross-Appcllecs’ motion to strike Gencral

Electric s motion to dismiss appcal No. 95-35092 is denied.

The bricfing schedules previously cstablished in appcal

Nos. 95-35092 and 95-35145 respectively shall be vacated. The

Clerk shall establish a new cross-appcal bricfing schedule in these

appeal.

A-52

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCHUDEL. et al.

Plainuffs.

and

DEBORAH GUARAGNA-WILLIAMS.

Plaintiff-Appellee.

GENERAL ELECTRIC CO.. a foreign

corporation. KAISER ALUMINUM

AND CHEMICAL CORPORATION. a

forcign corporation.

Defendants-Appel!ants

DAVID SCHUDEL: DANIEL GLASS.

MERLIN E. CARLSON: TIMOTHY

SCHUDEL: SANDRA SCHUDEL.

husband and wife. and the marital

community composed thereof,

KATHRENE RAE HOWELL: CRAIG

A. THOMPSON: JOHN HOPKINS:

RUTH HOPKINS. husband and wife.

and the marital community composed

thereof.

Plaintiffs-Appellants.

GENERAL ELECTRIC CO.. a forcign

corporation. KAISER ALUMINUM

AND CHEMICAL CORPORATION. a

forcign corporation.

Defendants-Appellecs

FILED

NOV 24 1997

CATHY A CATTERSON,

CLERK

U.S. COURT OF APPEALS

No. 95-35092

D.C. No.

CV-92-00081-F VS

No. 95-35145

D.C. No.

CV-92-00081-FVS

ORDER

Before: BROWNING, D.W. NELSON, and FERNANDEZ.

Circuit Judges

The petition for rehearing of Merlin E. Carlson, Jr. is

DENIED.

The panel has voted to DENY the petition for rehearing of

David Schudel, Timothy Schudel, Sandra Schudel, Danicl Glass.

Craig Thompson, Deborah Williams, and Kathrene Froese. Judge

Browning and Judge Fernandez have voted to deny the suggestion

for rehearing en banc. and Judge Nelson so recommends

The panel has voted to DENY the petition for rehearing of

John Hopkins and Ruth Hopkins. Judge Browning and Judgc

Fernandez have voted to deny the suggestion for rehearing en

banc, and Judge Nelson so recommends.

The full court has been advised of the suggestions for

rchearing cn banc, and no judge of the court has requested a vote

on the suggestions for rehearing en banc. Fed. R. App. P. 34(b).

The petitions for rehearing are DENIED and the

suggestions for rchcaring en banc are REJECTED.

A-54

FILED IN

U.S. DISTRICT COURT

EASTERN DISTRICT OF

WASHINGTON

JUL 13 1994

JAMES R. LARSEN. CLERK

DEPUTY

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

DAVID SCHUDEL; DANIEL

GLASS: MERLIN E. CARLSON.

TIMOTHY L. SCHUDEL and

SANDRA SCHUDEL, husband and

wife and the marital community

composed thereof. KATHRENE

FROESE: CRAIG A. THOMPSON.

DEBORAH GUARANGA

WILLIAMS: and JOHN HOPKINS

and RUTH HOPKINS, husband and

wife and the marital community

composed thereof,

JUDGMENT IN A

CIVIL CASE

CASE NUMBER:

CS-92-008 |

Plaintiff (s) .

VS

GENERAL ELECTRIC

COMPANY, a forcign corporation:

and KAISER ALUMINUM

CORPORATION. a forcign

corporation,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Defendant (s) )

)

This action came on for trial before the Court and a jury.

Honorable Fred Van Sickle. District Judge. presiding. and the

CR-10 CIVIL JUDGMENT — JURY VERDICT

A-55

issucs having been duly tried and the jury having duly rendered its

verdict, ~

IT IS ORDERED AND ADJUDGED that the plaintiff.

Tim Schudet, recover of the defendants Gencral Electric Company

and Kaiscr Aluminum Corporation, the sum of One Million Fifty-

Onc Thousand Two Hundred Seventy Dollars ($1.051,270.00),

with interest thereon at the rate of §.31% as provided by law. and

his costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

Sandra Schudel, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation. the sum of Fifty

Thousand Dollars ($50,000.00) on her claim for loss of

consortium, with interest thercon at the rate of 5.31% as provided

by law, and her costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff,

John Hopkins, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of One

Million Three Hundred Forty-Eight Thousand Twenty Dollars

($1.348,020.00). with interest there on at the rate of 5.31% as

provided by law. and his costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff,

Ruth Hopkins. recover of the defendants General Electric

Company and Kaiscr Aluminum Corporation, the sum of Six

Hundred Two Thousand Two Hundred Fifty Doilars

($602.250.00) on her claim for loss of consortium, with interest

thercon at the rate of 5.31% as provided by law, and her costs of

action:

IT IS ORDERED AND ADJUDGED that the plaintiff,

Ruth Hopkins, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of One

Million Four Hundred Four Thousand Forty Dollars

($1.404,040.00) with intcrest thereon at the rate of 5.31% as

provided by law. and her costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

John Hopkins. recover of the defendants General Electric

Company and Kaiser Aluminum Corporation. the sum of Six

Hundred Two Thousand Two Hundred Fifty Dollars

($602.250.00) on his claim for loss of consortium. with interest

thercon at the rate of 5.31% as provided by law. and his costs of

action:

CR-10) CIVIL JUDGMENT | JURY VERDICT

A-56

IT IS ORDERED AND ADJUDGED that the plaintiff.

Merlin Carlson, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of Two

Million Seven Hundred Seventy-Five Thousand Seven Hundred

Sixty-Eight Dollars ($2,775,768 00), with interest thereon at the

rate of 5.31% as provided by law, and his costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

Danicl Glass, recover of the defendants General Electric Company

and Kaiser Aluminum Corporation, the sum of Nine Hundred

Fifty-Six Thousand One Hundred Forty-Six Dollars

($956,146.00). with interest thereon at the rate of 5.31% as

provided by law, and his costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

Deborah Guaragna Williams, recover of the defendants General

Electric Company and Kaiser Aluminum Corporation, the sum of

One Million Nine Hundred Seven Thousand Seven Hundred

Eighty-Three Dollars ($1.907,783 00). with interest thereon at the

rate of 5.31% as provided by law. and her costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

Kathrene Froese, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of One

Milhon Four Hundred Fifty-Nine Thousand Three Hundred

Thirty-Two Dollars ($1.459.332.00), with interest thereon at the

rate of 5.31% as provided by law, and her costs of action:

IT IS ORDERED AND ADJUDGED that the plaintiff.

David Schudel. recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of One

Million One Hundred Thirty Thousand Seven Hundred Eleven

Dollars ($1,130,711.00), with interest thereon at the rate of 5.31%

as provided by law, and his costs of action: and

CR-10) CINIE JUDGMENT JURY VERDICI

>

pe

A-57

IT IS ORDERED AND ADJUDGED that the plaintiff.

Craig Thompson, recover of the defendants General Electric

Company and Kaiser Aluminum Corporation, the sum of Five

Hundred Fifty-Six Thousand One Hundred Nincty-Nine Dollars

($556,199.00), with interest thereon at the rate of 5.31% as

provided by law. and his costs of action

Dated: July 13, 1994 JAMES R. LARSEN. Clerk

Sa ke

Charles L. Randazzo

Deputy Clerk

CR-10) CIVIL JUDGMENT JURY VERDICT

A-58

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

AT SPOKANE

DAVID SCHUDEL: DANIEL

GLASS: MERLIN E. CARLSON:

TIMOTHY L. SCHUDEL and

SANDRA SCHUDEL, husband and

wife and the marital community

NO 92-CS-0081-FVS

composed thereof. KATHERENE SPECIAL VERDICT

FROESE. CRAIG A. THOMPSON: FORM MERLIN

DEBORAH GUARAGNA CARLSON

)

)

)

)

)

)

)

)

WILLIAMS: and JOHN and RUTH _ )

HOPKINS. husband and wife and the — )

marital community composed thereof. — )

)

)

)

)

)

)

)

)

)

)

Plaintiffs

\

GENERAL ELECTRIC

COMPANY. a forcign corporation:

and KAISER ALUMINUM

CORPORATION. a foreign

corporation.

Defendants

We, the jury, make the following answers to the questions

submitted by the court on the claim of Merlin Carlson:

QUESTION NO. 1: Were cither of the defendants

- negligent? Answer “ves” or “no” after the name of cach

defendant

Answer Yes No

Defendant General Electric Co

Defendant Kaiser Aluminum Corp

A-59

If you answer Question No. | “no” as to both defendants sign and

return this verdict. If you answer Question No. | “ves” as to one

or both of the defendants. then answer Question No. 2.

QUESTION NO. 2: Was such negligence a proximate

causc of injury to Merlin Carlson” ‘

Answer “yes” or “no” after the name of cach defendant

Answer Yes No

Defendant General Electric Co

Defendant Kaiser Aluminum Corp.

If vou have answered “yes” to cither defendant on Question No. 2.

then answer Question No. 3. If you-have answered “no” as to

both defendants then sign and return this verdict

QUESTION NO. 3: We the jury find for the plaintiff.

Merlin Carlson. in the sum of $ 2.775.768 00

If vou answer Question No. 3 with any amount of money.

answer Question No. 4. If you find no damages, sign and

rcturn this verdict

QUESTION NO. 4: Was Merlin Carlson the loaned

servant of General Electric Company?

Answer “ves” or “no” NO

Sign and return this verdict

DATED this 13TH day of July . 1994.

s/Diana Waura

Presiding Juror

PUBLISHER’S NOTE:

THE FOLLOWING PAGES WERE UNAVAILABLE

FOR FILMING:

A462

APPENDIX D

U.S. CONSTITUTION AMENDMENT VII

CIVIL TRIALS

In Suits of common law. where the value and controversy

shall exceed $20.00. right of trial by jury shall be preserved and

no fact tried by a jury, shall be otherwise re-cxamined in any

Court of the United States, than according to the rules of the

common law

U.S. CONSTITUTION AMENDMENT V

IV.]

Capital crimes; double jeopardy; self-incrimination; due

process; just compensation for property

No person shall be held to answer for a capital. or

otherwise infamous crime. unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia. when in actual service in time of War or

public danger. nor shall any person be subject for the same

offence to be twice put in jcopardy of life or limb. nor shall be

compelled m any criminal case to be a witness against himself. nor

be deprived of life. liberty. of property without duc process of law.

nor shall private property be taken for public use. without just

compensation

U.S. CONSTITUTION ARTICLE Ill

§ 1. Judicial power; Tenure of office

Section |. The judicial Power of the United States, shall

be vested in one supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish. The judges.

both of the supreme and inferior Courts. shall hold their offices

during good Behaviour, and shall, at stated Times, receive for

their Services. a Compensation. which shall not be diminished

during their Continuance in Office

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§ 2. Jurisdiction

Section 2. The judicial Power shall extend to all Cases, in

Law and Equity. arising under this Constitution, the Laws of the

United States. and Treatics made, or which shall be made, under

their Authority:—to all Cases affecting Ambassadors, other public

Ministers and Consultants:—to all Cases of admiralty and

maritime Jurisdiction:—to Conservatorics between two of morc

Statcs.—between a State and Citizens of another State:—between

citizens of different States. between citizens of the same State

claiming Lands under Grants of different States. and between a

State, of the Citizens thereof, and forcign States, Citizens of

Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls. and those in which a State shall be Party.

the supreme Court shall have original Jurisdiction. In all the other

Cases before mentioned. the supreme Court shall have appellate

Jurisdiction. both as to Law and Fact. with such Exceptions, and

under such Regulations as the Congress shall make

The Trial of all Crimes. except in Cases of Impeachment.

shall be by Jury: and such Trial shall be held in the State where

the said Crimes shall have been committed. but when not

committed within any State. the Trial shall be at such Place or

Places as the Congress may by Law have directed

§ 3. Treason; proof and punishment

Section 3. Treason against the United States. shall consist

only in levying War against them, or in adhcring to their Encmices,

giving them Aid and Comfort. No person shall be convicted to

Treason unless testimony of two witnesses to the same Act. of on

Confession in open Court.

The Congress shall have power to declare the Punishment

of Treason, but no Attainder of Treason shall work Corruption of

Blood. of Forfeiture except during the Life of the Person attainted.

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FEDERAL RULES OF CIVIL PROCEDURE

Rule 8. General Rules of Pleading

(a) Claims for Relief. A pleading which sets forth a claim

for rclicf. whether an original claim, counterclaim. cross-claim. or

third-party claim. shall contain (1) a short and plain statement of

the grounds upon which the court's jurisdiction depends. unless

the court already has jurisdiction and the claim needs no new

grounds of jurisdiction to support it. (2) a short and plain

statement of the claim showing that the pleadcr is entitled to relicf.

and (3) a demand for judgment for the relief the pleader secks.

Relicf in the alternative or of several different types may be

demanded.

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple,

concise, and direct. No technical forms of pleading or

motions are required.

(As amended Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987.

eff. Aug. 1, 1987.)

Rule 49. Special Verdicts and Interrogatories

(a) Special Verdicts. The court may requir a jury to return

only a special verdict in the form of a special finding upon

cach issuc of fact. In that event the court may submit to the jury

Written questions susceptible of categorical or other bricf answer

or may submit written forms of the several special findings which

might properly be made under the pleadings and evidence: or it

may usc such other method of submitting the igsucs and requiring

the written findings thercon as it deems most a propriate. The

court shall give to the jury such explanation and instruction

concerning the matter thus submitted as may b¢ necessary to

enable the jury to makc its findings upon cach issuc. If in so

doing the court omits any issuc of fact raised by the pleadings or

by the evidence. cach party waives the right to a trial by jury of

the issue so omitted unless before the jury retires the party

demands its submission to the jury. As to an issue omitted

without such demand the court may make a finding: or, if it fails

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to do so, it shall be deemed to have made a finding in accord with

the judgment on the special verdict.

(As amended Jan. 21, 1963, cff. July 1, 1963: Mar. 2. 1987. eff

Aug. |. 1987.)

Rule 50. Motion for a Directed Verdict and for Judgment

Notwithstanding the Verdict (Pre-1991 Amendment)

(a) Motion for Directed Verdict: When Made; Effect. A

party who moves for a directed verdict at the close of the evidence

offered by an opponent may offer evidence in the event that the

motion is not granted, without having reserved the right so to do

and to the same extent as if the motion had not been made. A

motion for a directed verdict which is not granted is not a waiver

of trial by jury even though all partics to the action have moved

for directed verdicts. A motion for a directed verdict shall state

the specific grounds therefor. The order of the court granting a

motion for a directed verdict is effective without anv assent of the

jury. |

(b) Motion for Judgment Notwithstanding the Verdict.

Whenever a motion for a directed verdict made at the close of all

the evidence is denied or for any reason is not granted. the court is

deemed to have submitted the action to the Jury subject to a later

determination of the legal questions raised by the motion. Not

later than 10 days after entry of judgment. a party who has moved

for a directed verdict may move to have the verdict and any

judgment entered thercon sct aside and to have judgment entered in

accordance with the party's motion for a directed verdict: or if a

verdict was not returned such party. within 10 days after the jury

has been discharged, may move for judgment in accordance with

the party's motion for a directed verdict. A motion for a new trial

may be joined with this motion. or a new trial may be praved for

in the alternative. If a verdict was returned the court may allow

the judgment to stand or may reopen the judgment and cither order

a new trial or direct the entry of judgment as if the requcsted

verdict had been directed. If no verdict was returned the court

may direct the entry of judgment as if the requested verdict had

been directed or may order a new trial.

(As amended Jan. 21. 1963. cff. July 1. 1963: Mar. 2. 1987. cff

Aug.1. 1987.)

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Rule 50. Judgment as a Matter of Law in Actions Tried by

Jury; Alternative Motion for New Trial; Conditional

Rulings

(1991 Amendment Version)

(a) Judgment as a Matter of Law.

(1) — If during a trial by jury a party has been fully

hcard on an issuc and there is no Icgally sufficient evidentiary

basis for a rcasonable jury to find for that party on that issuc.

the court may determine the issuc against that party and may

grant a motion for judgment as a matter of law against that

party with respect to a claim or defense that cannot under the

controlling law be maintained or defeated without a favorable

finding on that issuc

(2) | Motions for judgment as a matter of law may be

made at any time before submission of the case to the jury

Such a motion shall specify the judgment sought and the law

and the facts on which the moving party is cntitled to the

judgment.

(b) Renewal of Motion for Judgment After Trial; Alternative

Motion for New Trial. Whenever a motion for judgment as a

matter of law made at the close of all the evidence is denied or for

any reason is not granted. the court is deemed to have submitted

the action to the jury subject to a later determination of the legal

questions raiscd by the motion. Such a motion may be renewed by

service and filing not later than 10 days after entry of judgment.

A motion for a new trial under Rule 59 may be joined with a

renewal of the motion for judgment as a matter of law. or a new

trial may be requested in the alternative. If a verdict was returned.

the court may. in disposing of the renewed motion. allow the

judgment to stand or may reopen the judgment and cither order a

new trial or direct the entry of judgment as a matter of law. If no

verdict was returned, the court may. in disposing of the renewed

motion, direct the entry of judgment as a matter of law or may

order a new trial.

(As amended Jan. 21. 1963. cff. July 1. 1963. Mar. 2. 1987, eff.

Aug. 1. 1987: Apr. 30. 1991. eff. Dec. 1. 1991: Apr. 22. 1993. eff

Dec. 1. 1993.)

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Rule 50. Judgment as a Matter of Law in Jury

Trials; Alternative Motion for New Trial;

Conditional Rulings

(December 1995 Version)

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on

an issuc and there is no legally sufficicnt evidentiary basis for a

reasonable jury to find for that party on that issuc. the court may

determine the issue against that party and may grant a motion for

judgment as a matter of law against that party with respect to a

claim of defense that cannot under the controlling law be

maintained or defeated without a favorable finding on that issue.

(b) Renewing Motion for Judgment After Trial; Alternative

Motion for New Trial. If. for anv rcason. the court docs not

grant a motion for judgment as a matter of law made at the close

of all the evidence. the court is considered to have submitted the

action to the jury subject to the court's later deter deciding the

legal questions raised by the motion. The movant may renew its

request for judgement as a mattcr of law by filing by filing a

motion no later than 10 days after entry of judgement- and may

alternatively request a new trial or join a motion for a new trial

under Rule 59. In ruling on a renewed motion. the court may:

(1) if. a verdict was returned:

(A) allow the judgment to stand.

(B) order a new trial. or

(C) direct entry of judgment as a matter of law: or

(2) if no verdict was returned:

(A) order a new trial. or

(B) direct entry of judgment as a matter of law.

(As amended Jan. 21. 1963. cff. July 1. 1963: Mar. 2. 1987. cff

Aug. |, 1987: Apr. 30. 1991. eff. Dec. 1. 1991: Apr. 22, 1993.

eff. Dec. 1. 1993: Apr. 27. 1995, eff. Dec. 1. 1995.)

i

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Rule S59. New Trials; Amendment of Judgments

(1966 Version)

(a) Grounds. A new trial may be granted to all or any of the

partics and on all or part of the issues (1) in an action in which

there has been a trial by jury, for any of the reasons for which new

trials have heretofore been granted in actions at law in the courts

of the United States: and (2) in an action tricd without a jury. for

any of the reasons for which rehearings have heretofore been

granted in suits in cquity in the courts of the United States. Ona

motion for a new trial in an action tried without a jury, the court

may open the judgment if one has been entered. take additional

testimony. amend findings of fact and conclusions of law or make

new findings and conclusions, and direct the entry of a new

judgment

(d) On Initiative of Court. Not later than 10 davs after entry

of judgment the court of its own initiative may order a new trial

for any reasons for which it might have granted a new trial on

motion of a party. After giving the partics notice and an

opportunity to be heard on the matter. the court may grant a

motion for a new trial. timely served. for a reason not stated in the

motion. In cither case, the court shall specify in the order the

grounds therefore

(e) Motion to Alter or Amend the Judgment. A motion to

alter or amend the judgment shall be served not later than 10 davs

after entry of the judgment.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948: Feb. 28, |

966, eff. July 1, 1966)

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Rule 59 New Trials; Amendment of Judgments

(1995 Version)

(d) On Court's Initiative; Notice; Specifying Grounds. No

later than 10 days after entry of judgment the court. on its own.

may order a new trial for any reason that would justify granting

one on a party's motion. After giving the partics notice and an

opportunity to be heard, the court may grant a timely motion for a

new trial for a rcason not stated in the motion. When granting a

new trial on its own initiative or for a reason not stated in a

motion. the court shall specify the grounds in its order.

(As amended Dec. 27, 1946. cff. Mar. 19, 1948: Feb. 28. | 966.

cff. July 1. 1966: Apr. 27. 1995. cff. Dec. 1. 1995.)

28 U.S.C. § 2072. Rules of procedure and evidence; power to

proscribe

(a) The Supreme Court shall have the power to prescribe general

rules of practice and procedure and rules of evidence for bases in

the United States district courts (including proceedings before

magistrates thercof) and courts of appcals.

(b) Such rules shall not abridge. enlarge or modify any

substantive right. All laws in conflict with such rules shall be of

no further force or effect after such rules have taken effect.

(c) Such rules may define when a ruling of a district court is final

for the purposes of appcal under section 1291 of this title.

(Added Pub.L. 100-702. Title IV. § 401(a). Nov. 19. 1988. 102

Stat. 46-48, and amended Pub.L. 101-650. Title Hl. § 315. Dec.

1. 1990. 104 Stat. 5115.)

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REVISED CODE OF WASHINGTON ANNOTATED

Art. 1, § 21

21. Facts and facts issues

Courts cannot trench on providence of jury upon

questions of fact under this provision. State v. Furth (1940) 5

Wash.2d |. 104 P.2d 925.

Right to trial by jury must mcan that accused has right to

have jury pass upon every substantive fact going to question of his

guilt or innocence, otherwise this provision would be rendcred

void and utterly fail in purpose which our people have always

belicved it was intended to accomplish. State v. Strasburg (1910)

36 Wash. 106. 110 P. 1020, Ann. Cas. 1912B 917.

5.40.050. Breach of duty-Evidence of negligence-Negligence

per se

A breach of a duty imposed by stature. ordinance. or

administrative rule shall not be considcred negligence per se. but

may be considered by the trier of fact as evidence of negligence:

however. any breach of duty as provided by statute, ordinance, or

administrative rule relating to clectrical fire safety. the usc of

smoke alarms. or driving while under the influence of intoxicating

liquor of any drug. shall be considered negligence per se.

Enacted by Laws 1986. ch. 305. § 901.