Rehearing and Rehearings En Banc Denied October 20, 1988.
RALPH B. GUY, Jr., Circuit Judge, on rehearing.
A number of persons, including these plaintiffs, who either lived or owned property near defendant's landfill, brought a class action for personal injuries and property damage resulting from hazardous chemicals leaking from the landfill and contaminating the local water supply. The district court held the corporation liable upon legal theories of strict liability, common law negligence, trespass, and nuisance. The court awarded five representative members of the class compensatory damages for their personal injuries, as well as property damages, plus prejudgment interest on the entire award. The district court further held the corporation liable to the class as a whole for punitive damages.
Upon a review of the lengthy record in this difficult case, we find that the district court properly held Velsicol liable to the five representative plaintiffs but erred in the nature and amount of the damage awards. Accordingly, we affirm in part, reverse in part, and remand with directions for recalculation of some of the damages.
I.
FACTS
In August, 1964, the defendant, Velsicol Chemical Corporation (Velsicol), acquired 242 acres of rural land in Hardeman County, Tennessee. The defendant used the site as a landfill for by-products from the production of chlorinated hydrocarbon pesticides at its Memphis, Tennessee, chemical manufacturing facility. Before Velsicol purchased the landfill site and commenced depositing any chemicals into the ground, it neither conducted hydrogeological studies to assess the soil composition underneath the site, the water flow direction, and the location of the local water aquifier, nor drilled a monitoring well to detect and record any ongoing contamination. From October, 1964, to June, 1973, the defendant deposited a total of 300,000 55-gallon steel drums containing ultrahazardous liquid chemical waste and hundreds of fiber board cartons containing ultrahazardous dry chemical waste in the landfill.
Shortly after Velsicol began its disposal operations at the landfill site, local residents and county, state, and federal authorities became concerned about the environmental impact of the defendant's activities. As a result of this concern, the United States Geological Survey (USGS), in 1967,
State authorities increasingly became concerned about the defendant's disposal of ultrahazardous chemicals at the site.
In 1976, three years after the state permanently closed the landfill disposal site, the USGS, in conjunction with state authorities, commenced updating the 1967 USGS report. One major concern, which gave rise to the new USGS study, was the possibility of the chemicals migrating toward wells utilized by local residents. In 1978, the USGS issued a written report detailing the 1976 update of the 1967 report. The 1978 report found that the water table of the local aquifer was highly contaminated. The 1978 USGS report also indicated that the local aquifer moved toward the northwest, north, and northeast, rather than just toward the east as earlier indicated in the 1967 USGS report. Consequently, residents' wells, which were previously presumed safe from contamination, were now potentially polluted. In view of the continued complaints by numerous local residents, the Department of Health conducted further well water sampling tests in 1978. These tests revealed the presence of certain chlorinated hydrocarbons in numerous wells. Additionally, in 1978, the state, the USGS, the EPA, and Velsicol all commenced numerous extensive ground water surveys of the site and surrounding area. The surveys collectively identified twelve to fifteen drinking water wells, which were adjacent to the site, as contaminated with high levels of chlorinated hydrocarbons. Specifically, the surveys established that six of these wells were contaminated by carbon tetrachloride in excess of 100 parts per billion and high amounts of chloroform. The users of these wells, and all wells within 1,000 acres around the landfill site, were advised to stop using them for any purpose.
In 1978, forty-two plaintiffs sued Velsicol in the Circuit Court of Hardeman County, Tennessee, on behalf of themselves and all others similarly situated for damages and injunctive relief. The complaint sought $1.5 billion in compensatory damages and $1 billion in punitive damages. The defendant removed the action to the United States District Court for the Western District of Tennessee, alleging diversity of citizenship and the requisite amount in controversy. Shortly after removal, all but fifteen of the original forty-two plaintiffs settled their claims. Plaintiffs' counsel filed an amended complaint for damages and injunctive
After a bench trial of the five claims, the district court found Velsicol liable to the plaintiffs on legal theories of strict liability, common law negligence, trespass, and nuisance. The court concluded that the defendant's hazardous chemicals, which escaped from its landfill and contaminated plaintiffs' well water, were the proximate cause of the representative plaintiffs' injuries. The district court awarded the five individuals compensatory damages totalling $5,273,492.50 for their respective injuries, plus prejudgment interest dating back to July, 1965, of $8,964,973.25. All damages, except for $48,492.50 to one plaintiff for property damage claims, were awarded for personal injuries. The district court also awarded $7,500,000 in punitive damages to the class as a whole. The court deferred to individual hearings, to be held after trial, the issues of causation and injury of any other persons purporting to be members of the class entitled to share in this award.
On appeal, the defendant argues that the district court lacked subject matter jurisdiction over the class members and impermissibly certified the case as a class action. The defendant further argues the district court erred in finding that the plaintiffs were exposed to its chemicals and that there was a causal connection between their exposure, if any, and their resultant injuries. Accordingly, the defendant asserts the district court improperly awarded compensatory damages to the plaintiffs for their alleged injuries. Defendant also asserts that prejudgment interest on the compensatory award and punitive damages should not have been awarded. We address the defendant's arguments seriatim.
II.
SUBJECT MATTER JURISDICTION
The defendant argues that the district court lacked subject matter jurisdiction over all but two of the representative class plaintiffs. Velsicol states the remaining three representative plaintiffs, and all other putative class members, never formally filed any pleadings specifically alleging and justifying that the amount of controversy between each of them and the defendant exceeded $10,000. Velsicol further asserts that, once it challenged the district court's jurisdiction over these plaintiffs, the court was obligated to consider immediately the sufficiency of each plaintiff's claim and dismiss all of those plaintiffs unable to demonstrate a valid claim at that time.
In the instant case, Velsicol filed two separate Fed.R.Civ.P. 12(b)(1) dismissal motions prior to trial. Defendant moved to dismiss all absent plaintiffs who, though they received class action notification, failed to comply with the class certification order and allege claims in excess of the requisite jurisdictional amount. The defendant also moved to dismiss those plaintiffs who subsequently joined in the class action pursuant to Fed.R.Civ.P. 20(a) but failed to assert claims in excess of $10,000 each. The plaintiffs' counsel responded
At a pretrial hearing, the district court decided that the defendant's motion as to the representative class members would be determined at trial and deferred the decision as to all other class members until a later date.
Subsequently, the court held in its August 1, 1986 opinion that the proper pleadings, jurisdictional amount, and notice requirements of the representative class members had been properly complied with in all respects and were indicative of the remaining party plaintiffs' claims. Each of the representative plaintiffs were awarded compensatory damages far in excess of $10,000.
Defendant properly argues that, in accordance with Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and Amen v. City of Dearborn, 532 F.2d 554 (6th Cir.1976), appealed on other grounds, 718 F.2d 789 (6th Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984), each plaintiff in a class action individually must allege a claim in excess of $10,000. Likewise, a judgment may be vacated at any time, even on appeal, for lack of subject matter jurisdiction. See Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984); Basso v. Utah Power & Light Co., 495 F.2d 906 (10th Cir.1974); Canadian Indemnity Co. v. Republic Indemnity Co., 222 F.2d 601 (9th Cir.1955). However, defendant erroneously asserts that once it challenges the district court's jurisdiction with respect to the amount in controversy for each class member, the court must make an immediate determination of the sufficiency of each claim. Fed.R.Civ.P. 12(d) provides that:
(Emphasis added). The method and timetable for deciding a Rule 12(b) motion under Rule 12(d) is left to the sole discretion of the trial judge who may defer that determination until trial. In response to defendant's Rule 12(b) motions, the plaintiffs' counsel repeatedly asserted that each class member alleged a claim in excess of the requisite jurisdictional amount. In determining whether a dismissal is justified for lack of the jurisdictional amounts, the sums posited by the plaintiffs, provided they are made in good faith, control unless it appears to a legal certainty that their claims are, in actuality, for less. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Velsicol failed either to assert that the plaintiffs proffered bad faith damage claims or
III.
CLASS ACTION CERTIFICATION
Velsicol argues that the district court improperly certified this case as a Fed.R.Civ.P. 23(b)(3) class action because common questions of law or fact did not predominate over individual questions. As to the requirements necessary for certification of a Rule 23(b)(3) class action, the district court held in its February 12, 1981 certification order that (1) the class was so large that joinder of all members was impractical (Rule 23(a)(1)), (2) there were questions of law or fact common to the class (Rule 23(a)(2)), (3) representative claims were typical of the claims of the class (Rule 23(a)(3)), and (4) the representative parties would fairly and adequately protect the interests of the class (Rule 23(a)(4)). The court further found that questions of law or fact common to the members of the class predominated over any questions affecting only individual members and that a class action would be superior to other available methods for the fair and efficient adjudication of the controversy (Rule 23(b)(3)).
The procedural device of a Rule 23(b)(3) class action was designed not solely as a means for assuring legal assistance in the vindication of small claims but, rather, to achieve the economies of time, effort, and expense. See, e.g., Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D.Fla.1973), aff'd without opinion, 507 F.2d 1278 (5th Cir.1975); Buford v. American Finance Co., 333 F.Supp. 1243 (N.D.Ga.1971). See also Fed.R.Civ.P. 1. However, the problem of individualization of issues often is cited as a justification for denying class action treatment in mass tort accidents.
The district court retains broad discretion in determining whether an action should be certified as a class action, and its decision, based upon the particular facts of the case, should not be overturned absent a showing of abuse of discretion. See Hopper v. Schweiker, 596 F.Supp. 689 (M.D.Tenn.1984), aff'd, 780 F.2d 1021 (6th Cir.1985), cert. denied, 475 U.S. 1111, 106 S.Ct. 1522, 89 L.Ed.2d 920 (1986); Kentucky Educators Public Affairs Council v. Kentucky Registry of Election Finance, 677 F.2d 1125 (6th Cir.1982); Cross v. National Trust Life Insurance Co., 553 F.2d 1026 (6th Cir.1977). In complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy. However, where the defendant's liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy.
In the instant case, each class member lived in the vicinity of the landfill and allegedly suffered damages as a result of ingesting or otherwise using the contaminated water. Almost identical evidence would be required to establish the level and duration of chemical contamination, the causal connection, if any, between the plaintiffs' consumption of the contaminated water and the type of injuries allegedly suffered, and the defendant's liability. The single major issue distinguishing the class members is the nature and amount of damages, if any, that each sustained. To this extent, a class action in the instant case avoided duplication of judicial effort and prevented separate actions from reaching inconsistent results with similar, if not identical, facts. The district court clearly did not abuse its discretion in certifying this action as a Rule 23(b)(3) class action. However, individual members of the class still will be required to submit evidence concerning their particularized damage claims in subsequent proceedings.
PROXIMATE CAUSATION
The main thrust of Velsicol's argument on appeal is that there was insufficient evidence to support a finding of causation between its disposal of toxic chemicals and plaintiffs' injuries. Velsicol further argues that the various types of injuries identified by the district court were based upon impermissibly speculative and conjectural evidence.
In accordance with Fed.R.Civ.P. 52(a), a finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Oregon State Medical Society, 343 U.S. 326, 339, 72 S.Ct. 690, 698, 96 L.Ed. 978 (1952); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). However, if the district court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949). Indeed, the reviewing court oversteps the bounds of its duty under Fed.R.Civ.P. 52(a) if it undertakes to duplicate the role of the lower court. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). A district court's ultimate and subsidiary findings concerning causation,
Velsicol argues that proof of the plaintiffs' exposure to its chemicals and the causal connection between that exposure, if any, and their subsequent injuries impermissibly was based upon insufficient evidence. Specifically, the defendant asserts that there was no evidence that two known carcinogens (carbon tetrachloride and chloroform) were in the plaintiffs' wells in the late 1960's and early 1970's when they allegedly were consuming the contaminated water. To overcome this lack of evidence, Velsicol contends that the plaintiffs introduced into evidence an invalid water computing model that erroneously concluded that the plaintiffs were exposed to significant levels of contaminants as early as 1970.
On appeal, the defendant not only questions the validity of ground water modeling techniques in general, but also argues that plaintiffs' particular model fatally failed to utilize all of the relevant data. We reject both of Velsicol's arguments. Numerous courts have validated water modeling techniques to predict past levels of contamination in drinking water where the model was both properly conceived and constructed. See e.g., Anderson v. W.R. Grace & Co., 628 F.Supp. 1219 (D.Mass.1986). The plaintiffs carefully devised, calibrated, and tested their model, based upon physical data generated by Velsicol's own consultants, to determine the physical and chemical characteristics beneath the landfill. They properly formulated the various components of the model (the determination of transmissivity, the infiltration rate, the water table configuration, the porosity, the dispersion coefficient, and the ground water velocity) and utilized all relevant data. The plaintiffs' failure to incorporate selected well samplings conducted after 1978 necessarily does not invalidate their model and the conclusions to be drawn therefrom.
In 1978, the EPA tested nineteen of twenty-two domestic wells (not including four USGS wells) for chemical contamination. After 1978, only one of the five wells from which the representative plaintiffs drank or otherwise used water and seven of the nineteen remaining wells were ever again tested. Data showing the level of chemical contamination of these remaining wells was available only upon a limited and sporadic basis. While the plaintiffs did not incorporate these post-1978 well samplings into their model, they thoroughly reviewed and utilized the data to confirm the water table contour component of their model. Plaintiffs also did not utilize soil column studies, such studies having been abandoned by Velsicol itself and found non-credible by the district court. However, the plaintiffs utilized all other relevant data including, but not limited to, the 1964 Rima Study, the 1978 Sprinkle Study, the data generated by the State of Tennessee in 1970, all the information generated by AWARE, and all of the monitoring information by Velsicol, the State of Tennessee, and the EPA. Because the district court carefully considered the plaintiffs' model, including its components and the data it utilized, we cannot say that it erred in using the model in concluding that Velsicol's chemicals contaminated the plaintiffs' wells as early as 1970.
Next, Velsicol argues there was insufficient evidence to prove causation between plaintiffs' ingestion, if any, of Velsicol's chemicals and their alleged resultant injuries. The question of proximate cause is always to be determined on the facts of each case. See Wooten v. United States, 574 F.Supp. 200 (W.D.Tenn.1982), aff'd, 722 F.2d 743 (6th Cir.1983); Ricker v. Zinser Textilmaschinen GmbH., 506 F.Supp. 3 (E.D.Tenn.1978), aff'd, 633 F.2d 218 (6th Cir.1980); Wyatt v. Winnebago Industries, 566 S.W.2d 276 (Tenn.App.1977); Mullins v. Seaboard Coastline Railway, 517 S.W.2d 198 (Tenn.App.1974); Carney v. Goodman, 38 Tenn.App. 55, 270 S.W.2d 572 (1954). On the basis of expert testimony (consisting of treating physicians, medical specialists, scientists, psychiatrists, clinical psychologists, engineers, hydrologists, and the plaintiffs themselves), numerous studies, and extensive literature, the district court concluded that Velsicol's chemicals and the duration of the plaintiffs' exposure to them were capable of causing the types
Thus, the court, as is appropriate in this type of mass tort class action litigation, divided its causation analysis into two parts. It was first established that Velsicol was responsible for the contamination and that the particular contaminants were capable of producing injuries of the types allegedly suffered by the plaintiffs. Up to this point in the proceeding, the five representative plaintiffs were acting primarily in their representative capacity to the class as a whole. This enabled the court to determine a kind of generic causation — whether the combination of the chemical contaminants and the plaintiffs' exposure to them had the capacity to cause the harm alleged. This still left the matter of individual proximate cause to be determined. Although such generic and individual causation may appear to be inextricably intertwined, the procedural device of the class action permitted the court initially to assess the defendant's potential liability for its conduct without regard to the individual components of each plaintiff's injuries. However, from this point forward, it became the responsibility of each individual plaintiff to show that his or her specific injuries or damages were proximately caused by ingestion or otherwise using the contaminated water. We cannot emphasize this point strongly enough because generalized proofs will not suffice to prove individual damages. The main problem on review stems from a failure to differentiate between the general and the particular. This is an understandably easy trap to fall into in mass tort litigation. Although many common issues of fact and law will be capable of resolution on a group basis, individual particularized damages still must be proved on an individual basis.
To the extent that the plaintiffs seek damages for their bodily injuries, they must prove to a "reasonable medical certainty," though they need not use that specific terminology, that their ingestion of the contaminated water caused each of their particular injuries. See Thompson v. Underwood, 407 F.2d 994 (6th Cir.1969); Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241 (1962). This standard implicates the qualifications of the witnesses testifying, the acceptance in the scientific community of their theories, and the degree of certainty as to their conclusions. This standard is of particular importance when dealing with injuries or diseases of a type that may inflict society at random, often with no known specific origin. On numerous occasions, the Tennessee Supreme Court has addressed the degree of certainty of medical testimony required to establish a causal connection between a plaintiff's injuries and a defendant's tortious conduct. See e.g., Lindsey v. Miami Development Corp., 689 S.W.2d 856
While upon review of the record in its entirety we cannot say that the district court abused its discretion in making its determination of the proximate causation between Velsicol's chemical dumping operations, the resultant contamination of the plaintiffs' water supply and the capacity of the contaminated water to cause the harms alleged, we find the district court erred in attributing all of the representative plaintiffs' alleged injuries to drinking or otherwise using the contaminated water. We, therefore, address each category of the district court's damage award.
V.
COMPENSATORY DAMAGES
Velsicol argues that, even assuming proof of a proximate causation, the district court improperly awarded the five representative plaintiffs compensatory damages for their respective injuries and disabilities. The five representative plaintiffs, their exposure to Velsicol's chemicals, and their respective injuries are as follows:
Steven Sterling: Plaintiff Sterling, who was born December 25, 1922, in Hardeman County, Tennessee, utilized a well adjacent to his residence (Sterling well) for drinking purposes until November, 1977, and for all other purposes until November, 1978. During that time, he claimed to have drunk between ten and twelve glasses of the well water each day. He observed that, beginning in 1975, the well water developed a distinct odor, a bad taste, and contained an oily substance. Sterling testified that after ingesting, and otherwise using, the well water for a prolonged period of time, he suffered from headaches, nervousness, stomach and chest pains, shortness of breath, ringing in his ears, fatigue, loss of appetite and weight, nausea, coughing, vomiting, and peripheral neuropathy. Sterling further testified that he suffered from an enlarged liver with abnormal hepatic function, and an eighty percent reduction in his kidney function. Additionally, he developed emphysema in early 1976. Sterling was a heavy smoker for over forty-five years and previously worked in a cotton mill.
James Wilbanks: Plaintiff Wilbanks, who was born in Walton, Mississippi, on June 15, 1931, lived in a mobile home with his family across from the Velsicol landfill from 1968 through 1971. During that time period, both Wilbanks and his family used
Curry Ivy: Plaintiff Ivy, who was born on January 3, 1926, in Chester County, Tennessee, drank contaminated water from three wells (Rosetta Brooks well, Velsicol Farm well, and Tavern well). He moved from the area in 1972. Ivy also was exposed to the ultrahazardous liquid and dry chemicals from January, 1972, through June, 1973, while he was employed by Velsicol to transport chemicals from its plant in Memphis, Tennessee, to its landfill in Hardeman County, Tennessee. Ivy testified that he suffered from headaches, dizziness, nausea, vomiting, nervousness, shortness of breath, fatigue, partial loss of eyesight including optic nerve neuritis and nerve dysfunction, and peripheral neuropathy. Ivy further testified that he suffered from liver and kidney damage and severe emphysema. Ivy's medical history prior to drinking, or otherwise using, any contaminated well water included ulcers, stomach problems, severe emphysema, partial loss of vision, a heart attack, and various psychological problems. Ivy was a heavy smoker and previously worked in a cotton mill.
Daniel Johnson: Plaintiff Johnson, who was born May 18, 1938, in Algoma, Mississippi, lived in Hardeman County from 1976 through 1978. During that time, Johnson and his family used water from a well adjacent to his property (Johnson well) for drinking and bathing purposes. Johnson testified that he suffered from headaches, loss of balance, fatigue, nausea, vomiting, numbness, nervousness, skin irritation, coughing, and partial loss of eyesight including optic nerve dysfunction. Johnson further testified that he suffered liver and kidney damage. Additionally, the Missouri Department of Health certified that, as of 1980, he was totally disabled and unable to continue employment as a result of psychological injuries. Johnson's wife and daughter developed breast and uterus tumors. Mrs. Johnson previously suffered from fibrocystic disease.
James Maness, Jr.: Plaintiff Maness, who was born on September 1, 1976, drank and was bathed in water obtained from two wells (Sterling well and Mosier well) until approximately 1978. Additionally, while Maness' mother was pregnant, she drank water obtained from the same wells. Maness allegedly suffered from frequent headaches, dizziness, nose bleeds, sore throat, nausea, and frequent vomiting. Additionally, Maness suffered from severe allergies, epilepsy, diabetes, blood discrasias, and an abnormally enlarged liver.
Based upon these findings, the district court awarded the five representative plaintiffs compensatory damages for the following injuries:
Sterling Wilbanks Ivy Johnson Maness
Extent of Injury and Disability,
Including Increased
Risk of Cancer
and Disease $ 150,000 $150,000 $ 75,000 $ 150,000 $ 250,000
Immune System Impairment 75,000 75,000 75,000 150,000 500,000
----------------------------------------------------------------------------------------------
Post-Traumatic Stress
Disorder 50,000 25,000 50,000 250,000 --
Fear of Increased Risk of
Cancer and Disease 75,000 100,000 50,000 250,000 250,000
----------------------------------------------------------------------------------------------
Physical Pain Emotional Suffering $ 125,000 250,000 50,000 125,000 150,000 Impaired Quality of Life 150,000 75,000 50,000 100,000 500,000 ---------------------------------------------------------------------------------------------- Real Property 48,492.50 -- -- -- -- Lost Wages Earning Capacity -- -- -- 250,000 500,000 Learning Disorders -- -- -- -- 150,000 ---------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------- TOTAL: $673,492.50 $675,000 $350,000 $1,275,000 $2,300,000
A. Extent of Injury and Disability
Velsicol asserts there was insufficient medical proof of the causal connection between ingestion of contaminated water and certain injuries. First, we focus upon that portion of the award attributed to the plaintiffs' actual physical injuries and then upon the portion of the award attributed to their increased susceptibility to cancer and other diseases.
1. Presently Ascertainable Injuries
As a portion of its award for the extent of their injuries and disabilities proximately caused by ingesting the contaminated water, the district court awarded the five representative plaintiffs damages for their presently ascertainable injuries. In its opinion and order granting judgment to the plaintiffs, with respect to plaintiffs Sterling, Johnson, and Maness, the district court merely referred to the "extent of [their] injury and disability" without further indicating which specific injuries were included in this category. However, the district court clarified the basis of its award by adopting and incorporating into its opinion findings of fact submitted by the plaintiffs' counsel. By adopting such findings, the court credited plaintiffs' evidence that plaintiffs Sterling, Johnson, and Maness each suffered from kidney and liver damage and numerous central nervous system injuries. In its opinion and order with respect to plaintiff Wilbanks, the court referenced the "loss of one kidney already to cancer and optic atrophy and neuritis" as some of the elements of its award and, with respect to plaintiff Ivy, the court referenced "optic atrophy and neuritis" as some of the elements of its award. The court further adopted the plaintiffs' proposed findings to the effect that plaintiffs Wilbanks and Ivy also suffered from kidney and liver damage and numerous central nervous system injuries.
In seeking damages for actual physical injuries, a plaintiff must prove to a reasonable medical certainty that his or her injuries were caused by a defendant's acts or omissions. To this extent, an award is not insulated from review merely because the trial court refrains from particularizing the basis of a general injury award. If, for example, a plaintiff fails to establish sufficient causation between a defendant's acts and a specific injury, we may, nonetheless, remand the entire award to exclude that portion of the award, if any, attributed to that specific injury for which proof is lacking.
Velsicol specifically avers that the plaintiffs failed to prove to a reasonable medical certainty that Wilbanks' kidney cancer, all of the plaintiffs' loss of kidney and liver functions and central nervous system injuries, and Wilbanks' and Ivy's optic atrophy and neuritis were caused by ingesting contaminated water. With respect to Wilbanks' kidney cancer, plaintiffs' testifying physician, Dr. Rhamy, stated that "based upon a reasonable medical certainty ... its more likely [that Wilbanks' kidney cancer] was caused by the chemicals...." While Dr. Rhamy conceded that "[n]o one knows what causes cancer of the kidney," his testimony that Wilbanks' environmental exposure to carbon tetrachloride was the reasonable and probable cause for his kidney cancer constitutes sufficient medical proof. The plaintiffs' testifying physicians, Drs. Balistreri, Clark, Rhamy, and Rodricks, further testified to a reasonable medical certainty that each of the plaintiff's loss of kidney and liver functions and
However, the plaintiffs failed to prove to a reasonable medical certainty that either Wilbanks' or Ivy's optic atrophy and neuritis were caused by ingesting or otherwise using the contaminated water. While plaintiffs' own expert neuroopthamologist, Dr. Drewery, stated that Ivy's eye problems and his exposure to carbon tetrachloride were causally related and that his reduction in visual acuity and visual field were compatible with toxic exposure, Dr. Drewery, based upon his own tests, concluded that Ivy did not have optic atrophy. Indeed, no physician diagnosed Ivy as suffering from optic atrophy. Dr. Drewery's statement that he was unable to "uncover any ... other medically probable explanation for Mr. Ivy's visual problems than chemical exposure," when considered in view of his negative diagnosis, and Dr. Rhamy's observation that Ivy had a paleness of the optic disc (which Dr. Drewery did not observe) does not constitute sufficient medical proof. Similarly, no physician diagnosed or testified to a reasonable medical certainty that Wilbanks' visual difficulties were caused by his exposure to contaminated water. While plaintiffs Johnson's, Maness', and Sterling's presently ascertainable injuries were all sufficiently substantiated by competent medical testimony, the district court's award to plaintiffs Wilbanks and Ivy is remanded for recalculation to exclude that portion of the award attributed to the specific injuries we have found to be unsupported by sufficient medical proof.
2. Increased Risk of Cancer and Other Diseases
Plaintiffs sought to recover damages for the prospect that cancer and other diseases may materialize as a result of their exposure.
Where the basis for awarding damages is the potential risk of susceptibility to future disease, the predicted future disease must be medically reasonably certain to follow from the existing present injury. While it is unnecessary that the medical evidence conclusively establish with absolute certainty that the future disease or condition will occur, mere conjecture or even possibility does not justify the court awarding damages for a future disability which may never materialize. Tennessee law requires that the plaintiff prove there is a reasonable medical certainty that the anticipated harm will result in order to recover for a future injury. See Thompson v. Underwood, 407 F.2d 994 (6th Cir.1969); Maryland Casualty Co. v. Young, 211 Tenn. 1, 362 S.W.2d 241 (1962); see also Shelton v. College Station, 765 F.2d 456 (5th Cir.1985). Therefore, the mere increased risk of a future disease or condition resulting from an initial injury is not compensable. While neither the Tennessee courts,
In the instant case, the district court found an increased risk for susceptibility to cancer and other diseases of only twenty-five to thirty percent. This does not constitute a reasonable medical certainty, but rather a mere possibility or speculation. Indeed, no expert witnesses ever testified during the course of trial that the five representative plaintiffs had even a probability — i.e., more than a fifty percent chance — of developing cancer and kidney or liver disease as a result of their exposure to defendant's chemicals.
For the foregoing reasons, the district court's award of compensatory damages to each of the five representative plaintiffs is remanded for recalculation to exclude that portion of the damage award attributed to increased susceptibility to cancer and other diseases.
B. Fear of Increased Risk of Cancer and Other Diseases
Velsicol next argues that the district court erroneously awarded the five representative plaintiffs compensatory damages or, in the alternative, excessive damages for fear of increased risk of contracting cancer and other diseases.
In Tennessee, damages for fear arising from an increased risk of disease are recoverable. Laxton v. Orkin Exterminating Co., 639 S.W.2d 431 (Tenn.1982). In Laxton, the plaintiffs' water supply was contaminated by the carcinogens chlordane and heptachlor when defendant serviceman sprayed the exterior of plaintiffs' house for termites. The Department of Water Quality Control told plaintiffs to cease using the water for any purpose and to obtain a new water source. As a result of ingesting the contaminated water for over a period of eight months, the plaintiffs worried about their health and the health of their children. The court awarded the plaintiffs $6,000 each for their mental suffering resulting from their reasonable apprehension of the harmful effects to their own and their children's health due to consuming or otherwise using the contaminated water. The Laxton court noted that the period of "mental anguish" deserving compensation was confined to the time between the discovery of ingestion of toxic substances and the determination that puts to rest the fear of future injury.
In the instant case, the plaintiffs' fear clearly constitutes a present injury. Each plaintiff produced evidence that they personally suffered from a reasonable fear of contracting cancer or some other disease in the future as a result of ingesting Velsicol's chemicals. Consistent with the extensive line of authority in both Tennessee and other jurisdictions, we cannot say that the district court erred in awarding the five representative plaintiffs damages for their reasonable fear of increased risk of cancer and other diseases.
The evidence credited by the court shows that each of the plaintiffs suffered from, and should be compensated for, a reasonable fear of contracting cancer or some other diseases in the future. The only issue is the amount of reasonable compensation. In Laxton, the court limited the amounts of recovery to $6,000 for each plaintiff's reasonable fear of future disease from ingesting known carcinogens over an extended period of time. In the instant case, the district court awarded plaintiffs damages ranging from $50,000 to $250,000. We find these awards to be excessive, particularly where plaintiffs failed to prove at trial that they have a significant increased risk of contracting cancer and other diseases. Upon a review of the opinion and the adopted findings of fact, we are unable to find any basis upon which the district court differentiated its damage awards to each plaintiff for his or her fear of increased risk of cancer and other diseases. The Laxton court awarded each plaintiff $6,000 for his or her fear of increased susceptibility to cancer from consuming known carcinogens for a duration of eight months. Using Laxton as a guidepost, we, accordingly, vacate the district court's award and award each of the five representative plaintiffs damages based upon the duration of their exposure to the contaminated water. Plaintiff Johnson, who was exposed to the chemicals for a period of approximately two years, is awarded $18,000 versus the district court's award of $250,000; plaintiff Maness, who was exposed for approximately three years (two years during infancy and approximately one year while his mother was exposed to the chemicals during pregnancy), is awarded $27,000 versus the district court's award of $250,000; plaintiff Ivy, who was exposed for approximately four years, is awarded $36,000 versus the district court's award of $50,000; plaintiff Wilbanks, who was exposed for approximately six years, is awarded $54,000 versus the district court's award of $100,000; and plaintiff Sterling, who was exposed for approximately eight years, is awarded $72,000 versus the district court's award of $75,000.
C. Immune System Impairment and Learning Disorders
Velsicol argues that the district court erroneously awarded all of the plaintiffs damages for alleged impairment to their immune systems and to plaintiff Maness for his additional learning disorders due to his immune system impairment. Velsicol specifically alleges that the court improperly admitted and relied upon testimony which purported to show Velsicol's chemicals harmed plaintiffs' immune systems because the principles upon which the experts based their conclusions were not in conformity to a generally accepted explanatory theory.
The admissibility of expert testimony is governed by Fed.R.Evid. 702 which provides:
In accordance with Rule 702, a four-part test must be met to uphold the admission of "expert testimony": (1) a qualified expert (2) testifying on a proper subject (3) which is in conformity to a generally accepted explanatory theory (4) the probative value of which outweighs its prejudicial effect. United States v. Kozminski, 821 F.2d 1186, 1194 (6th Cir.), cert. granted on other grounds, 484 U.S. 894, 108 S.Ct. 225, 98 L.Ed.2d 185 (1987); United States v. Brown, 557 F.2d 541 (6th Cir.1977); United States v. Green, 548 F.2d 1261 (6th Cir.1977). With respect to the third criterion, the principles upon which the scientific evidence is based must be sufficiently established to have gained wide acceptance in the field to which it belongs. As we reasoned in United States v. Brown:
557 F.2d at 556, quoting United States v. Baller, 519 F.2d 463, 466 (4th Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975). A review of the record reveals that plaintiffs failed to meet the third criterion of the test.
Plaintiffs' testifying expert immunologist, Dr. Levin, and testifying pediatrician, Dr. Crook, stated that, on the basis of clinical ecological tests, Velsicol's chemicals damaged plaintiffs' immune systems.
The record reveals that plaintiff Maness was borderline retarded and suffered from a severe learning disorder. The sole evidence allegedly linking Maness' learning problems to his chemical exposure was offered by clinical ecologist, Dr. Crook. Dr. Crook testified that Maness' and his mother's ingestion of toxic chemicals "so compromised his resistance that it set him up for a variety of health problems" — in essence immune system dysregulation. Dr. Crook based his conclusions on two examinations in which he determined Maness' physical condition was normal and Maness' general medical history which was provided by his grandmother. He performed no scientific tests to determine the source of Maness' learning disorder. Despite the testimony of other physicians which attributed Maness' learning disorder to other factors, Dr. Crook dismissed the evidence reasoning that "those physicians are unaware of the role of chemical sensitivity in triggering health problems ... I feel I have knowledge of [Maness] that they don't have." Despite his personal speculations, Dr. Crook provided no medical basis justifying his conclusion that Maness' learning disorder was caused by ingesting or otherwise using the contaminated water.
Accordingly, we reverse the district court's award of damages to all of the plaintiffs for immune system impairment and to plaintiff Maness for his learning disorder arising out of impairment to his immune system.
D. Post-Traumatic Stress Disorder
Velsicol argues that the district court improperly awarded four of the five representative plaintiffs damages for post-traumatic stress disorder (PTSD). Both this court and the courts of Tennessee are familiar with, and have awarded compensatory damages for, PTSD. See, e.g., Richardson v. Heckler, 750 F.2d 506 (6th Cir.1984); Crump v. B & P Construction Co., 703 S.W.2d 140 (Tenn.1986); State v. Spawr, 653 S.W.2d 404 (Tenn.1983). On appeal, Velsicol specifically argues that the plaintiffs failed to prove the requisite elements of PTSD.
As medically defined, PTSD concerns the development of characteristic symptoms following a psychologically traumatic event generally outside the range of usual human experience. A PTSD diagnosis, according to the American Psychiatric Association definition as relied upon by plaintiffs' experts, requires the satisfaction of all four of the following criteria:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 236, 238 (3d ed. 1980). Upon review of the record and relevant case authority, we find plaintiffs failed to meet the requisite criteria for a PTSD diagnosis.
Plaintiffs' drinking or otherwise using contaminated water, even over an extended period of time, does not constitute the type of recognizable stressor identified either by professional medical organizations or courts. Examples of stressors upon which courts have based awards for PTSD include rape, assault, military combat, fires, floods, earthquakes, car and airplane crashes, torture, and even internment in concentration camps, each of which are natural or man-made disasters with immediate or extended violent consequences. See, e.g., Smith v. Smith, 830 F.2d 11 (2d Cir.1987); Howard v. Chesapeake & Ohio Railway, 812 F.2d 282 (6th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 78, 98 L.Ed.2d 40 (1987); Bode v. Pan American World Airways, 786 F.2d 669 (5th Cir.1986); Richardson v. Secretary of Health and Human Services, 8 Soc.Sec.Rep.Ser. 156, 750 F.2d 506 (6th Cir.1984). Whereas consumption of contaminated water may be an unnerving occurrence, it does not rise to the level of the type of psychologically traumatic event that is a universal stressor. A plaintiff's claim that a particular event or series of events caused him PTSD must be subjected to the closest scrutiny. The court must demand that a plaintiff produce sufficient authority that the particular event constitutes a "recognized stressor" or a psychologically traumatic event which would produce significant symptoms of distress in almost everyone experiencing such an event. In the instant case, the plaintiffs produced none, and this court can identify no relevant authority that the consumption of contaminated water is a recognized stressor upon which an award of PTSD can rest. Additionally, plaintiffs' experts presented no evidence establishing that any of the plaintiffs were, in fact, "retraumatized" through recurrent and intrusive recollections or dreams of drinking the contaminated water. Plaintiff Johnson's nightmares about "what was happening to [his] children and [constant preoccupation] with what their condition was and ... might be in the future" merely describe his reasonable fear of increased risk of cancer and other diseases. Since each plaintiff failed to satisfy all of the criteria necessary for a diagnosis of PTSD, we reverse the district court's award of damages.
E. Impaired Quality of Life
Velsicol argues that the district court erred in awarding three non-resident representative plaintiffs damages for impaired quality of life based upon a nuisance theory. Velsicol specifically alleges that plaintiffs Ivy and Maness, who were never residents of the affected area, and plaintiff Wilbanks, who relocated before state authorities counselled residents to locate an alternative water source, were not entitled to this category of damages as they had no standing to bring a nuisance action. In awarding plaintiffs damages for impaired quality of life, the district court stated in pertinent part:
647 F.Supp. at 321 (emphasis added) (citations omitted).
While Tennessee recognizes impairment of enjoyment of life as an element of intangible damages, Martin v. Southern Railway, 225 Tenn. 77, 463 S.W.2d 690 (1971); Dixie Feed & Seed Co. v. Byrd, 52 Tenn.App. 619, 376 S.W.2d 745 (1963), cert. denied, Tenn.S.Ct., cert. denied, 379 U.S. 15, 85 S.Ct. 147, 13 L.Ed.2d 84 (1964), the court may not award this category of damages to non-residents on the theory of a nuisance action. Courts that have awarded damages on this basis have properly limited their award to residents of the area affected by the nuisance. See Kornoff v. Kingsbury Cotton Oil Co., 45 Cal.2d 265, 288 P.2d 507 (1955); Nailor v. C.W. Blakeslee & Sons, Inc., 117 Conn. 241, 167 A. 548 (1933); Dixon v. New York Trap Rock Corp., 293 N.Y. 509, 58 N.E.2d 517 (1944), reh'g denied, 294 N.Y. 654, 60 N.E.2d 385 (1945); Riblet v. Spokane-Portland Cement Co., 45 Wn.2d 346, 274 P.2d 574 (1954). The district court erred in awarding damages to non-resident plaintiffs on the basis of a nuisance theory. Accordingly, we reverse the district court's award of damages for impairment of quality of life to plaintiffs Ivy, Maness, and Wilbanks.
F. Lost Wages and Earning Capacity
Velsicol argues that the district court erroneously awarded damages to plaintiffs Johnson and Maness for lost wages and earning capacity as such award was impermissibly based upon speculation. Without any discussion whatsoever of either the basis for or the calculations involved, the district court awarded plaintiffs Johnson and Maness $250,000 and $500,000 respectively for lost wages and earning capacity. With respect to Johnson, the extent of plaintiff's proof consisted of his income tax forms from 1972-1975 and the Missouri Division of Family Services' certification that, as of 1980, Johnson was no longer able to continue gainful employment. Plaintiff failed to produce income tax forms or any figures of his annual income for the years during which he lived in Hardeman County, Tennessee, and the years for which he claimed disability. With respect to Maness, plaintiff produced no evidence as to the lifetime earning capacity of a "normal" person of Maness' age and socioeconomic condition. Moreover, Maness failed to prove that his learning disability, which constitutes the single most important factor contributing to his loss of earning capacity, was proximately caused by his ingestion or other usage of the contaminated water or his mother's ingestion of the contaminated water during the term of her pregnancy. Indeed, for neither Johnson nor Maness did the plaintiffs set forth any basis for the amount of damages sought for lost wages and earning capacity.
While Tennessee compensates victims for the loss of the capacity to earn, Thompson v. National Railroad Passenger Corp., 621 F.2d 814 (6th Cir.), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980); Southern Coach Lines, Inc. v. Wilson, 31 Tenn.App. 240, 214 S.W.2d 55, cert. denied, Tenn.S.Ct. (1948), a plaintiff must produce the best evidence available to offer a reasonable basis for estimating the extent of his loss. Western Sizzling, Inc. v. H.A. Harris, No. 85, 741 S.W.2d 334 (Tenn.App.1987). We set forth the formula for determining the amount of an award for loss of earning capacity in Imperial Oil, Ltd. v. Drlik, 234 F.2d 4 (6th Cir.), cert. denied, 352 U.S. 941, 77 S.Ct. 261, 1 L.Ed.2d 236 (1956):
Id. at 11 (emphasis added).
While an award of damages can never be based upon conjecture and speculation, Redbud Cooperative Corp. v. Clayton, 700 S.W.2d 551 (Tenn.App.1985); Maple Manor Hotel, Inc. v. Metropolitan Government of Nashville and Davidson County, 543 S.W.2d 593 (Tenn.App.1975), where it is shown the plaintiff suffered an injury because of defendant's conduct, mere uncertainty as to the amount of damages sought will not prevent recovery if the evidence is of such certainty as to enable the trier of fact to make a fair and reasonable assessment of damages. Wilson v. Farmers Chemical Association, 60 Tenn.App. 102, 444 S.W.2d 185 (1969). To this extent, there exists a clear distinction between the measure of proof necessary to establish that the plaintiff suffered some injury and the measure of proof necessary to enable the trier of fact to assign an amount of damages due as a result of the injury. Stevens v. Moore, 24 Tenn.App. 61, 139 S.W.2d 710 (1940). However, the amount of damages must be susceptible of ascertainment by some method other than by mere conjecture or surmise and by reference to some fairly definite standards. In assessing a plaintiff's lost wages and earning capacity, the court should consider, among other characteristics, the plaintiff's record of employment, avenues of occupation open to him, and his physical capacity to perform his job at the time he was injured and thereafter. Clinchfield Railroad v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966), cert. denied, Tenn.S.Ct. (1967). In the instant case, plaintiffs produced no evidence whatsoever from which the court could have made a reasonable determination of the amount of lost wages for plaintiff Johnson, and the impairment of projected future earnings for both plaintiffs. Accordingly, as the plaintiffs failed in their burden of proof to present sufficient evidence to substantiate the amount of damages sought, we reverse the district court's award of loss of wages and impaired earning capacity to plaintiffs Johnson and Maness.
G. Diminution of Property Value
Velsicol asserts that the district court erred in finding that the current value of one of the representative plaintiff's property was limited to its value as that of timberland. Velsicol asserts that, given the fact that the plaintiff continues living on the property and that the county tax assessor devalued the property by only twenty-eight percent, meant the property had a higher value. Velsicol further asserts that the district court's formula for calculating the diminution of property value for all property owners in the putative class was arbitrary and impermissibly speculative. We disagree with the defendant's contentions.
The district court found that the value of all property within one mile of Velsicol's landfill, the "contaminated zone," had been rendered valueless except for $275 per acre for timber bearing potential; the value of all property outside of the "contaminated zone" but within two miles of the landfill, the "affected zone," had been reduced fifty percent over its timberland value; and the value of all property outside the "affected zone" but within three miles of the landfill, the "tertiary zone," had been reduced ten percent over its timberland value. Sterling, who owned both a home and a rental property in the "contaminated zone," was the only plaintiff owning an identifiable interest in real estate within a three-mile radius of Velsicol's landfill. Based upon the difference in the market value of Sterling's 15.3 acres of residential and rental property before and after Velsicol's chemicals contaminated the area surrounding his properties, the district court awarded him $48,492.50.
Under Tennessee law, the measure of damages for injury to realty is the difference
VI.
PREJUDGMENT INTEREST
Velsicol asserts that the district court erred not only in awarding prejudgment interest on its award of compensatory damages to the plaintiffs for their personal injuries and property damage claims, but also in using July, 1965, as the date from which prejudgment interest, if any, should accrue. In a diversity case, a federal court is bound by state law on the question of prejudgment interest. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Glens Falls Insurance Co. v. Danville Motors, Inc., 333 F.2d 187 (6th Cir.1964). Tennessee Code Annotated § 47-14-123 provides in pertinent part:
(Emphasis added). While statutory law does not provide for it, in accordance with common law the trier of fact may, in his discretion, award prejudgment interest on a claim for loss or injury to property even where the claim is not certain and is unliquidated. See, e.g., Irving Pulp & Paper, Ltd. v. Dunbar Transfer & Storage Co., 732 F.2d 511 (6th Cir.1984); Farmers Chemical Association v. Maryland Casualty Co., 421 F.2d 319 (6th Cir.1970); Johnson v. Tennessee Farmers Mutual Insurance Co., 556 S.W.2d 750 (Tenn.1977); B.F. Myers & Sons, Inc. v. Evans, 612 S.W.2d 912 (Tenn.App.1980). While the district court did not abuse its discretion in awarding Sterling prejudgment interest on his property damage claim, it erred in using July, 1965, as the date from which to calculate the accrual of interest.
Prejudgment interest on a property damage award accrues from the date that the defendant's tortious conduct effectively operates to destroy or diminish either the resale value, the rental value, or even the personal use and enjoyment of the plaintiff's property. See, e.g., Louisville & Nashville Railroad v. W.A. Fort, 112 Tenn. 432, 80 S.W. 429 (1903); City of Columbia v. Lentz, 39 Tenn.App. 350, 282 S.W.2d 787 (1955). Determining the date
Accordingly, the district court's award of prejudgment interest on Sterling's property damage claim is remanded to determine the date, not earlier than January 1, 1978, when the public sufficiently became aware of the chemical contamination of Sterling's well so as to effectively depreciate the market resale or rental value of his property. To the extent that other class members present property damage claims, the district court further is instructed to ascertain when the chemical contamination of that particular class member's property served to depreciate its market resale or rental value in setting an accrual date for an award, if any, of prejudgment interest.
With regard to the district court's award of prejudgment interest for the representative plaintiffs' personal injuries, no statutory or common law in Tennessee provides for prejudgment interest on compensatory awards for physical or emotional damages.
Id. at 38, 17 S.W. at 883 (emphasis added).
The Wallace decision has not been overruled nor has its result been changed by statute. Plaintiffs' policy argument that the Wallace rule, which denies the recovery of prejudgment interest on personal injury awards, should no longer stand is more appropriately made before the Tennessee courts or the state legislature. Accordingly, we reverse the district court's award of prejudgment interest on any of the compensatory damage awards for personal injuries as there is no common law or statutory authority to make such an award.
VII.
PUNITIVE DAMAGES
Lastly, Velsicol argues that the district court erred in awarding the entire class punitive damages on the grounds of Velsicol's conduct during the course of litigation, upon the baseless conclusion it willfully and wantonly violated state law in disposing its chemicals, and before determining compensatory damages to the entire class.
In awarding punitive damages, the district court stated in pertinent part:
647 F.Supp. at 307. The district court noted there were at least three possible justifications for such an award and then based the award upon a portion of the profits Velsicol earned as a result of utilizing the landfill rather than incinerating the chemicals.
In assessing its award of punitive damages, the district court stated:
647 F.Supp. at 323-24.
Punitive damages are allowed under Tennessee law and are given in excess of, and in addition to, compensatory damages. They are awarded in cases involving fraud, malice, gross negligence, or oppression, Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899), or where a wrongful act is done with a bad motive or recklessly as to imply a disregard of social obligation, Stepp v. Black, 14 Tenn.App. 153 (1931), or where there is such willful misconduct as to raise a presumption of conscious indifference. Honaker v. Leonard, 325 F.Supp. 212 (E.D.Tenn.1971); Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975). In the state of Tennessee, punitive damages are not recoverable as a matter of right, but are within the sound discretion of the trial judge. We will not reverse an award of punitive damages without proof of an abuse of discretion. Moreover, in reviewing a trial court's justification for awarding such damages, we view the record in its entirety rather than each particular factor in isolation. The theory behind awarding punitive damages is not to compensate an injured plaintiff for personal injury but to punish a defendant and deter him from committing acts of similar nature. Huckeby v. Spangler, 563 S.W.2d 555 (Tenn.1978); Booth v. Kirk, 53 Tenn.App. 139, 381 S.W.2d 312 (1963).
While the court may award punitive damages when a party's conduct during the course of litigation is either frivolous or in bad faith, Reynolds v. Pegler, 223 F.2d 429 (2d Cir.1955); Universal City Studios, Inc. v. Nintendo Co., 797 F.2d 70 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986), a review of the entire record does not suggest that defendant's conduct warranted such punitive sanctions. Unlike Universal City Studios, in which the Second Circuit held punitive damages were appropriate where defendant threatened suit alleging trademark infringement despite a prior judicial holding that its trademark was in the public domain, Velsicol's defenses during the course of litigation did not constitute an abuse of process.
There is no evidence that Velsicol's defense was contrived in bad faith. In deciding whether counsel's positions at trial warrants awarding punitive damages, too strict a standard might unduly chill an attorney's advocacy, especially for those advancing unpopular arguments. This determination requires sensitivity on the part of the court. See, e.g., Blake v. National Casualty Co., 607 F.Supp. 189 (C.D.Cal.1984). Velsicol's conduct in the instant case is an impermissible basis in and of itself for awarding punitive damages.
There is, however, evidence supporting the district court's determination that Velsicol violated state law in establishing, utilizing, and refusing to cease disposal
For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for recalculation of damages.
NATHANIEL R. JONES, Circuit Judge, concurring.
While concurring in the judgment and much of the reasoning of the majority, I must write separately to set out my view of the appropriate degree of proof on damages. The majority concludes that certain of plaintiffs' alleged injuries were not proven to a reasonable medical certainty. Accordingly, the majority would remand for recalculation of the damage awards to exclude those portions of the awards attributed by the district court to injuries the majority finds unsupported by sufficient medical testimony.
My difficulty with the majority's treatment of the damages issue is the overly rigid way in which it applies the conceded legal standard of proof of a reasonable medical certainty. The majority correctly states that before there can be recovery, causation must be shown to a reasonable medical certainty. This court pointed that out in Thompson v. Underwood, 407 F.2d 994 (6th Cir.1969). However in Thompson we noted that this was a "general rule" and, further, that the substance of a doctor's testimony should not be disregarded "merely because he fails to use the magic words `reasonable medical certainty.'" Id. at 997.
There were several descriptive terms used by the medical experts in this case, though I acknowledge the absence of the magic words "reasonable medical certainty." However, if, as this court held in Thompson, the requirement is general and magic words are not necessary, the district court, as the fact finder, is free to reach Rome by an alternate route, so long as there is proof of exposure to the chemicals and of various injuries. The sufficiency of that proof, I would leave to the trier of fact, be it a judge or a properly instructed jury. It seems to me that the general standard of proof can be met, on a prima facie basis, where the record contains expert testimony on the chemicals and its properties, and proof of exposure to the chemicals supported by some medical testimony. It seems to me that at this point a rebuttable presumption of proximate causation ought to arise. The failure of the defendant to rebut this presumption would then give rise to a conclusion of reasonable medical certainty.
On remand, I would not foreclose the district court from engaging in burden shifting as discussed above, if it finds that the record as a whole demonstrates a rebuttable presumption of proximate causation for the injuries allegedly attributable to defendant's chemicals. In the event the defendant fails to rebut the presumption, the fact finder may find that the presumption becomes conclusive.
FootNotes
Adv.Comm.Note, 39 F.R.D. 69, 103 (1966).
Carbon tetrachloride: The principal acute effects of ingesting or inhaling carbon tetrachloride are liver and kidney necrosis and dysfunction, and depression of the central nervous system. Exposure also produces alterations in the activity of the liver microsomal enzyme system, development of fatty liver, liver enlargement, and changes in blood enzyme. Carbon tetrachloride is a well-documented carcinogen.
Chloroform: Inhalation of large doses of chloroform can result in narcosis, anesthesia, gastrointestinal upset, cardial sensitization, and damage to the kidney and liver. Chronic exposure to chloroform most typically results in liver damage.
Chlorobenzene: Chlorobenzene is a central nervous system depressant which causes symptoms typical of its anesthetic effect. Exposure to this chemical may cause headaches, upper respiratory tract irritation, eye irritation, numbness and eventual loss of consciousness.
Tetrachloroethylene: Exposure to tetrachloroethylene produces effects primarily on the nervous system, including unconsciousness, dizziness, headache, vertigo or light narcosis. Other effects occur in the liver, mucous membranes, eyes, lungs, kidney, heart and skin.
Hexachloroethane: Exposure to this chemical causes eye irritation, including the inability to close the eyelid, tearing, inflammation, and visual intolerance to light.
647 F.Supp. at 321-22.
647 F.Supp. at 320-21 (citations omitted).
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