SEYMOUR, Chief Judge, HENRY, Circuit Judge, and COOK, Senior District Judge.
H. DALE COOK, Senior District Judge.
The plaintiffs in this case were over 500 individuals alleging exposures of their persons and property to hazardous emissions of a uranium mill owned by the defendant corporation, Cotter Corporation (Cotter). Most of the plaintiffs demanded medical monitoring on account of radiation exposure but generally the plaintiffs did not allege physical illnesses. The plaintiffs brought an action alleging violations of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1990) and the Price Anderson Act, 42 U.S.C. § 2210 (1990) as well as state law claims including negligence, trespass and nuisance.
Certification of a class was proposed and denied on three occasions. After a trial to a jury for eight bellwether plaintiffs a verdict was returned in which all eight plaintiffs prevailed on negligence, six prevailed on trespass and three on nuisance. The plaintiffs appeal the denial of class certification, the refusal of the trial judge to allow them to depose an attorney for the defendant, the refusal of the trial judge to admit evidence of the fears of the plaintiffs of contracting disease to show damages and the trial judge's decision to grant summary judgment on the issue of piercing the corporate veil. We affirm.
I. CLASS CERTIFICATION
Although the plaintiffs concede that there are individual issues relating to the calculation of damages for those who were exposed to the uranium mill emissions they contend that there are common issues related to the liability of the defendants that should be tried as a class action. They argue that issues of whether the defendants behaved in
The plaintiffs contend that there are three such models: One to determine air exposure, another to determine water exposure and a third to determine "uptake" or how much of a harmful substance is taken into the body. The defendants argue that the plaintiffs' approach is too simplistic and that many models would be needed.
If the lower court did not apply an improper standard the court's decision is reviewed for an abuse of discretion. Pilots Against Illegal Dues v. Air Line Pilots, 938 F.2d 1123, 1134 (10th Cir.1991). The plaintiffs conceded in their opening brief that this was the appropriate standard of review. The discretion granted to the trial court on the certification issue leaves the decision as to what method of trial is most efficient primarily to the court that is in the best position to determine the facts of the case, to appreciate the consequences of alternative methods of resolving the issues of the case and that is in the best position to select the most efficient method for their resolution.
In her December 18, 1991 order, the judge below refused to certify a class under FED. R.CIV.P. § 23(b)(3), finding that individual questions predominated over common questions of liability; such individual issues including whether purchasers were aware contamination existed, the extent and nature of injuries, the degree and length of exposure, the prevalence of contamination and proof of ownership to water rights. With regard to plaintiffs' argument that common liability issues could be tried as a class with individual issues of damages determined separately, the judge decided that this was not appropriate because there was not a single course of conduct alleged to have caused the injuries, identical with respect to each plaintiff; the judge said that the plaintiffs alleged that their injuries derived from more than one source and that it could not be shown that the claims of the proposed class members were all based upon one legal or remedial theory.
The plaintiffs argue that the abuse of discretion standard is one that has teeth, citing the case of Esplin v. Hirschi, 402 F.2d 94 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969) — the first case we decided on the issue under Rule 23 after the 1966 amendments — where we required certification under Rule 23 notwithstanding the trial judge's decision to the contrary.
Of course, a decision to deny certification may, under certain circumstances, constitute an abuse of discretion. Nevertheless, it is not clear that we were applying the current abuse of discretion standard in deciding Esplin v. Hirschi. Our opinion in that case did not acknowledge discretion in the trial judge on the certification question except for discretion on whether to apply the 1966 amendments to pending cases.
In any event, it is not necessary for us to critically examine Esplin v. Hirschi at this time because, even assuming that the case applied an abuse of discretion standard and was otherwise correctly decided, we find that the facts of that case are easily distinguished. Esplin v. Hirschi was a securities fraud case. The notes of the advisory committee accompanying the 1966 amendments state that predominance of common issues over individual issues would be necessary for the economies of the class action device under Rule 23(b)(3) to be achieved, and specifically stated: "In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action ..." On the contrary, only a few sentences later the advisory committee notes caution that "[a] `mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting
Cook v. Rockwell Int'l Corp., 151 F.R.D. 378 (D.Colo.1993), cited by the plaintiffs, is not to the contrary because it is a district court decision, certifying a medical monitoring class under Rule 23(b)(2) and a property class under Rule 23(b)(3); the issue on appeal here is not whether the trial court could have certified a class but whether it was an abuse of discretion not to certify. The plaintiffs seek, among other things, the certification of a class for medical monitoring under Rule 23(b)(2). Although it is not necessary for common issues to predominate over individual issues under Rule 23(b)(2), provided that the trial judge does not apply an improper standard the decision whether to certify is still discretionary. Adamson v. Bowen, 855 F.2d 668 (10th Cir.1988) (where a decision not to certify was vacated because the trial court incorrectly held that predomination of common issues was a prerequisite to certification under Rule 23(b)(2) and the case was remanded for the trial court to exercise discretion under a correct interpretation of the law).
The trial judge, in her order filed December 18, 1991, considered and rejected certification under Rules 23(b)(1), (2) and (3).
Under Rule 23(b)(3) the trial judge held that individual issues predominated over common issues. She noted that the "[p]laintiffs allege that their injuries derive from more than one source, and questions of injuries and liability may differ depending upon where individual plaintiffs reside." (emphasis added) Although the wording of the opinion does not state expressly that discretion is being exercised and essentially states that the plaintiffs failed to meet the statutory prerequisites for certification under Rule 23(b)(3) so that certification would be legally improper, it has been held that a trial court's determination that common issues do not predominate is also reviewed under the abuse of discretion standard. "This is so
The plaintiffs contend that the defendants' own experts "could [not] testify as to the impact the actions of the Defendant had on any individual plaintiff. [footnote citation omitted] Rather, each and every defense expert spoke of the harm done to the community as a whole." Aplt.Brief 14. Nevertheless, the transcript of the direct examination of defense expert Adrian Brown contains several pages of testimony regarding the "individual bellwethers in this case." Aplt.App. 2350-2356. In this testimony the witness gave his opinion that certain properties were not affected by materials from the Cotter mill and that other properties were affected in varying degrees.
The plaintiffs cite Cook v. Rockwell, 147 F.R.D. 237, 244 (D.Colo.1993) for the proposition that dose reconstruction can rarely be based solely on measurements of existing levels of contaminants in the air, soil and bodies of individual plaintiffs. However, the fact remains that individual measurements can be quite relevant evidence in determining the extent of an individual's level of exposure and that such measurements may vary from individual to individual. The testimony that particular individuals' properties were not exposed to particular kinds of emissions might, on at least some of the claims alleging common law torts, have defeated liability.
II. DEPOSITION OF DEFENSE COUNSEL
The lower court issued a protective order prohibiting the plaintiffs from taking the deposition of Edward McGrath, outside counsel representing the defendants in this matter. The plaintiffs appeal that decision. The decision of a trial judge to enter a protective order under Rule 26(c) is reviewed for abuse of discretion. Florida v. Kerr-McGee Corp., 669 F.2d 620, 623 (10th Cir. 1982).
The plaintiffs argue that Mr. McGrath should have been deposed because of his role as spokesperson for Cotter Corporation before regulatory agencies and the press and because of his involvement in helping Cotter prepare its various license applications and giving "business advice" to Cotter on the location of a new mill on the site of the old one. The plaintiffs in their motion for leave to take McGrath's deposition gave four areas of inquiry for which the deposition was sought:
Notwithstanding plaintiffs' claims that McGrath had other roles, the lower court treated McGrath as an attorney for Cotter subject to the protection of Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The record supported the lower court's treatment of McGrath's status. David P. Marcott, who was executive vice president and general manager of Cotter from February 1956 until February 1980, said, "Mr. McGrath operated solely as an attorney. He made no operating decisions."
Both sides cite the rule of Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986).
Id., at 1327.
FED.R.CIV.P. § 26(c) provides that a court may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... that the disclosure or discovery not be had." Rule 26(c) is broader in scope than the attorney work product rule, attorney-client privilege and other evidentiary privileges because it is designed to prevent discovery from causing annoyance, embarrassment, oppression, undue burden or expense not just to protect
The defendants have argued that the Shelton criteria were not met in this case because the plaintiffs failed to seek the information they desired from other sources. The plaintiffs argue in response that they should not be required to question many witnesses who may not possess the necessary information and that, in any event, no one other than the lawyer himself can explain what he meant by what he said.
The record indicates, however, that the plaintiffs did not even fully explore those matters upon which they wished to inquire of defendant's counsel with the witnesses they did depose.
The plaintiffs argue that McGrath's testimony was essential to their claims for punitive damages. Even assuming that proof of a fraud by McGrath acting as an agent is relevant to punitive damages claims against the principal corporation in what the plaintiffs have characterized as a nuisance/trespass case, in order to demonstrate that McGrath's state of mind was crucial to their case the plaintiffs would first have to establish as many other elements of the fraud as possible, including the nature of the statements made, through alternative sources. The failure of the plaintiffs to make a substantial effort to establish as many elements of the alleged wrongs as was possible through alternative sources before seeking the testimony of defendants' counsel not only undermines the argument that all the information sought from him was exclusively within his possession, it also undermines the argument that the particular information (if there was any) that was exclusively within his possession would be proof of a crucial link or corroborative of a weak link in a chain of proven elements to establish punitive damages. Inquiry could at least have been directed to the officers and directors first; knowledge or fraudulent intent on their part would be more directly probative of the corporation's liability for punitive damages and during their questioning they could also have been asked about any nonprivileged statements McGrath may have made regarding his intentions and knowledge. Only after such questioning would the district court have been fully able to assess whether McGrath's deposition was crucial to their case. Accordingly, we affirm the decision to grant the protective order.
III. EXCLUSION OF EVIDENCE OF FEAR OF CANCER AND DISEASE
The plaintiffs appeal from the decision of the trial court to exclude evidence of the plaintiffs' fears of cancer or other disease as annoyance and discomfort damages under nuisance and trespass theories of recovery.
In the case before us, however, the plaintiffs allege that the trial court based its decision on a clear error regarding Colorado law that was crucial to the court's assessment of relevance of the excluded evidence. While a ruling on the relevance of the evidence is reviewed for abuse of discretion, McEwen v. City of Norman, Oklahoma, supra, whether damages are allowed for fear of cancer or other disease as "annoyance and discomfort" in a nuisance or trespass case is a question of law that we review de novo.
Damage issues in tort claims arising under state law are determined by the applicable state law. Union Oil Co. of California v. Heinsohn, 43 F.3d 500, 506 (10th Cir.1994). In this case Colorado law applies. Colorado allows damages for annoyance and discomfort in cases of injury to real property. Weld County Board of County Commissioners v. Slovek, 723 P.2d 1309, 1318 (Colo.1986). The lower court, however, held that "annoyance and discomfort" did not include unfounded fears of cancer or other disease.
The plaintiffs argue that even though their emotional distress claims were dismissed they should be permitted to introduce evidence of fear of cancer and other disease because there is a distinction between proof of liability on an emotional distress claim through evidence of fear of disease (which the lower court did not permit in a decision that the plaintiffs have not challenged on appeal) and proof of damages in a nuisance case through evidence of fear of disease (which the plaintiffs argue is permissible). Ironically, although the plaintiffs argue that the lower court confused proof of liability and proof of damages, the plaintiffs, in support of their position cite RESTATEMENT OF THE LAW, TORTS 2D § 821F comment f, a comment dealing not with damages but rather with proof of liability in a nuisance case. That passage reads as follows:
Although the Restatement is quite clear that unfounded fears of disease can be taken into account in determining liability in a nuisance case the comment dealing with annoyance and discomfort damages has no similar language. RESTATEMENT OF THE LAW, TORTS 2D § 929, comment e. Further, two of the cases cited by the plaintiffs, Park v. Stolzheise, 24 Wn.2d 781, 167 P.2d 412 (1946) and Armory Park v. Episcopal Community Services, 148 Ariz. 1, 712 P.2d 914 (1985), both granted injunctive relief and neither held that fears of disease could constitute annoyance and discomfort damages.
The plaintiffs also cite Bolin v. Cessna Aircraft Co., 759 F.Supp. 692 (D.Kan.1991) where the court, applying Kansas law, allowed damages for annoyance and discomfort without physical injury in a case of groundwater contamination. However, there is no dispute that annoyance and discomfort damages are available in such a case. The issue at hand is whether unfounded fears of disease are a form of recoverable annoyance and discomfort damages. The Bolin case did not address that issue
Clearly the District Court of Kansas, in applying Kansas law, has rejected the plaintiffs'
The ultimate question before us is one of Colorado law, not Kansas law. However, our examination of Colorado cases, while hardly conclusive on this point
In Slovek v. Board of County Commissioners, 697 P.2d 781 (Colo.App.1984), a trespass and negligence case where the plaintiffs' property was flooded, the court did not allow damages for emotional distress but did allow damages for unspecified annoyance and discomfort (to be determined after remand). On appeal at 723 P.2d 1309 (Colo.1986) the Colorado Supreme Court was not confronted with the issue of emotional distress
The trial court also cited Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978). In Towns Colorado held that "naked claims of emotional distress" can be made only where the emotional distress results in physical manifestations or mental illness. Id., at 1164-5. The plaintiffs argue that applying the Towns rule is an error of law here because this is a trespass and nuisance case, not a naked claim of emotional distress. Of course, for that reason, Towns is not on point, however, in view of the lack of authority directly on point from the Colorado Supreme Court the rationale of the Towns case should surely be taken into account. In Towns the court, even while perhaps liberalizing the rule for emotional distress, noted the policies of guarding against speculative and fraudulent claims. The only reason given for not requiring a physical impact as a prerequisite for damages was the court's belief that "the medical profession has made tremendous advances in diagnosing and evaluating emotional and mental injuries." In our judgment the potential for fraudulent or speculative claims that concerns the Colorado Supreme Court could only be effectively limited in a nuisance or trespass case such as this by a rule requiring evidence substantiating that the fears of disease, resulting from the contamination of land, are reasonable and have a sound foundation in medical, scientific or statistical evidence.
IV. PIERCING THE CORPORATE VEIL
The plaintiffs contend that Commonwealth Edison, the sole stockholder of Cotter, should not be protected from liability by the fact that Cotter operated in the corporate form. The plaintiffs argue that Cotter is a mere instrumentality of Commonwealth Edison and that failure to pierce the corporate veil would result in a grave injustice because Commonwealth Edison bought Cotter to benefit the residents of Illinois, and Colorado residents, who live with the contamination caused by Cotter's new mill, will be unable to obtain compensation from Commonwealth Edison.
In this case, alleging torts under Colorado law, the question of piercing the corporate veil must be determined by Colorado law as well. Lowell Staats Mining Co. v. Pioneer
The lower court granted summary judgment for the defendant Commonwealth Edison. A motion for summary judgment is reviewed de novo. Bacchus Industries v. Arvin Industries, 939 F.2d 887, 891 (10th Cir.1991). The court must view the evidence in the light most favorable to the party opposing the motion. Osgood v. State Farm, 848 F.2d 141, 143 (10th Cir.1988).
"[C]orporate veils exist for a reason and should be pierced only reluctantly and cautiously. The law permits the incorporation of businesses for the very purpose of isolating liabilities among separate entities." Cascade Energy and Metals Corp. v. Banks, 896 F.2d 1557, 1576 (10th Cir.1990), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990) (applying Utah law); Skidmore v. Canada Life, 907 F.2d 1026 (10th Cir.1990) (Colorado law). In order to hold Commonwealth Edison liable the plaintiffs must prove that the corporate entity "was used to defeat public convenience, or to justify or protect wrong, fraud or crime." Lowell Staats Mining Co. v. Pioneer Uravan, Inc., 878 F.2d 1259, 1265 (10th Cir.1989). The possibility that the plaintiffs may have difficulty enforcing a judgment against Cotter alone is not the type of injustice that warrants piercing the corporate veil. Id.
Whether a subsidiary is an instrumentality is determined by reference to the following criteria:
Fish v. East, 114 F.2d 177, 191 (10th Cir. 1940).
The lower court held that Cotter was not an instrumentality of Commonwealth Edison because Cotter was adequately capitalized, had repaid loans from Commonwealth Edison regularly and had scrupulously observed all the legal requirements of a corporation. The plaintiffs do not dispute that the corporate formalities were observed but do dispute that loans were repaid regularly and that Cotter was adequately capitalized.
The plaintiffs contend that Cotter's repayment of its indebtedness was illusory
The plaintiffs' argument, however, ignores that preferred stock is not debt and that the claims of creditors, including any successful plaintiffs, will have priority over the claims of preferred stockholders for the return of their capital. The purchase of preferred stock by a sole stockholder is not, as the plaintiffs contend, "like a consumer buying a sofa for cash and then going back and giving the store more money years after the purchase;" rather it is like a consumer buying a sofa for cash and then going back and paying the store more money years after the purchase to have the sofa reupholstered. The purchase of preferred stock, whether for cash or in exchange for the discharge of indebtedness, adds value to the company and leaves it better able to meet its obligations to all its creditors.
The plaintiffs also contend that the balance sheet for Cotter overstates its current assets because inventories cannot be considered current assets. The plaintiffs argue that the mill has not been operating for years and, therefore, amounts listed as inventories cannot be expected to be consumed within one year, which is necessary, by definition, for them to be current assets. The plaintiffs offer no authority regarding the standard accounting practice for characterization of inventories under these circumstances, but rather stand solely on their semantic argument. In any event, however, we find that their argument misses the point. Regardless of how these assets should be treated on the balance sheet the mere fact that a business becomes "undercapitalized" solely because of the recharacterization of assets when it ceases to operate does not prove that the business was set up in a manner so that it would be undercapitalized, nor does it show that the corporation "was used to defeat public convenience, or to justify or protect wrong, fraud or crime." We hold that the Fish v. East criteria must be examined in light of the principles and policies underlying the doctrine of piercing the corporate veil and in light of those policies the plaintiffs' argument that Cotter is (or was) undercapitalized is unavailing.
The plaintiffs cite Friedman & Son, Inc. v. Safeway Stores, 712 P.2d 1128 (Colo.App. 1985) as authority that the corporate veil may be pierced where the first, second and seventh Fish criteria are met. While it is true that the opinion is Safeway relies on these three criteria and it is also true that on the record before us under the summary judgment standard these three criteria are satisfied, Safeway is distinguishable on its facts because the subsidiary in that case was not only owned by the parent but was also incorporated as a wholly owned subsidiary to operate a baling system to prepare the parent's waste cardboard for recycling (Fish criterion number four). In the case before us the subsidiary, Cotter Corporation, existed as an independent corporation for years before it was purchased by Commonwealth Edison.
To summarize, reading the record in the light most favorable to the plaintiffs for purposes of this decision, it appears to us that of the criteria in the Fish v. East case the third (parent financing) and ninth (taking direction from parent) are somewhat qualifiedly present here. The sixth (that the parent pays salaries, expenses or losses of the subsidiary) appears partly present in the sense that the parent was required to reimburse Cotter for expenses incurred in mining operations for its benefit but there is nothing to suggest that the formal separateness of the corporations was disregarded. Two entirely independent corporations could have an arrangement for reimbursement of expenses such as that agreed to here without becoming one corporation.
The first (parent ownership), second (interlocking boards), seventh (substantially no business except with the parent) and eighth (subsidiary is referred to as such in papers of parent) criteria of the Fish case are present here as well. However, the fourth (parent organizes or subscribes to all of subsidiary's stock), fifth (grossly inadequate capital) and tenth (lack of formalities) criteria are not satisfied.
In applying the ten criteria in a case such as this we do not determine the winner by a numerical score, as in a ball game. We must view all the factors and even if a majority favor the party seeking to pierce the corporate veil that party does not necessarily prevail if the criteria — when taken as a whole with due regard to the extent to which they were and were not fully satisfied — do not demonstrate that the corporate form "was used to defeat public convenience, or to justify or protect wrong, fraud or crime." In the case before us we hold as a matter of law, that on the record before us piercing the corporate veil was not warranted.
We have reviewed all four issues presented to us on this appeal and we find no error.
The lower court did not address Rule 23(b)(1)(A) which provides that a class action may be maintained if inconsistent adjudications could establish incompatible standards of conduct for the party opposing the class (in this case, the defendant). The defendants, who should be the ones most concerned about any such potential inconsistency do not appeal the decision. In addition, at oral argument on appeal the plaintiffs contended that the defendants would be bound by the adjudications below on common issues, a result that would preclude the possibility of inconsistent adjudications. In taking this position the plaintiffs implicitly waived any argument for certification under Rule 23(b)(1)(A).
In holding that the trial judge generally at least has discretion to issue such a protective order when the Shelton criteria are met we also need not and do not, by implication, exclude the possibility that a trial judge would have discretion to issue such a protective order in other appropriate situations where the criteria are not met.
One of the past officers mentioned by Magistrate Schauer was David P. Marcott, who was present at the public meeting where plaintiffs suspect that McGrath may have intentionally made false statements. In denying the plaintiffs' motion for leave to take McGrath's deposition by Order dated March 30, 1992, Chief Magistrate Judge Abram, after noting several avenues of inquiry by deposition not yet pursued by the plaintiffs, pointed out that in their deposition of Mr. Marcott the plaintiffs did not attempt to refresh Mr. Marcott's recollection of statements made by Edward McGrath at a public meeting when Marcott said he did not specifically remember those statements. The magistrate judge found that the plaintiffs had failed to show a "substantial effort" to obtain the information sought from other sources and this finding appears reasonable on the record before us.
On page 28 of their opening brief plaintiffs cite a couple of points in the transcript of Mr. Marcott where he did not remember a specific statement of McGrath or could not comment on the state of mind of McGrath regarding an issue faced by Cotter, but not in reference to any inquiry about a particular statement made by McGrath. These citations do not contradict the findings of the chief magistrate judge. Although in an earlier statement not referenced by the plaintiffs Marcott said that he had no recollection of any statements McGrath made at the public hearing the transcript also shows, as the chief magistrate judge pointed out, that Marcott could recall some discussions with McGrath when his memory was refreshed.
The plaintiffs gave no citation for their assertion that George Rifakes (also present at the public meeting) was also unable to testify as to the matters for which they sought to question McGrath. The two transcripts of the depositions of Rifakes total to well over 350 pages. The burden is on the plaintiffs to establish that the Shelton criteria are met and we need not search the record to substantiate plaintiffs' claim. Gilbert v. Shalala, 45 F.3d 1391, 1395 (10th Cir. 1995), Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1513 (10th Cir.1990). See also U.S. v. Voigt, 877 F.2d 1465, 1470 (10th Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989) (not the task of the court to search the record for error where a party cites to the court "approximately 400 pages of transcript and identifies no particular instance.")
Rule 26(c), upon which we premise our decision, applies by its terms only to discovery, however, "[i]t is axiomatic that the trial court also has considerable discretion in determining how a trial is to be conducted." Blair v. Eagle-Picher Industries, Inc., 962 F.2d 1492, 1500 (10th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 464, 121 L.Ed.2d 372 (1992); Palmer v. Krueger, 897 F.2d 1529, 1538 (10th Cir.1990); Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir.1987) where the court said "the direction of the trial court will not be disturbed absent a manifest injustice to the parties." This discretion has been held to extend to limiting the number of expert witnesses. Chapman v. United States, 169 F.2d 641, 642-43 (10th Cir.1948), cert. denied, 335 U.S. 860, 69 S.Ct. 134, 93 L.Ed. 406 (1948); Blair, supra. It would be an anomalous holding to say that the trial court was within its discretion in preventing the deposition of opposing counsel and on the other hand to hold that the trial court exceeded its discretion in protecting opposing counsel from being called as a witness at trial. Accordingly, we hold that where the Shelton criteria are not all met during trial it will ordinarily be permissible to protect opposing counsel from being compelled to testify at trial as well.
The plaintiffs contend that McGrath's testimony was essential for the identification and admission of a relevant and important exhibit, a conference report on a waste disposal study. The plaintiffs, however, fail to explain the importance of this exhibit to their case or to show any prejudice resulting from the trial court's decision. Accordingly, we conclude that the Shelton criteria were neither met before trial nor at the trial.
Although the Colorado Supreme Court has cited the Restatements in this kind of case, it has not followed the Restatements slavishly (see Weld County Board v. Slovek, 723 P.2d 1309, 1318 (Colo.1986) questioning the Restatements rule that a nonoccupant-owner cannot recover annoyance and discomfort damages) and we are not convinced that it would follow this particular comment from two decades ago, allowing compensation for wholly unfounded fears. The Supreme Court of Michigan, which decided a case allowing a nuisance claim based on unfounded fears of a "pesthouse", or hospital for contagious diseases, many years ago (Birchard v. Lansing Board of Health, 204 Mich. 284, 169 N.W. 901, 4 A.L.R. 590 (1918)) recently decided not to allow a claim of nuisance based on the depreciation in real property values caused by unfounded fears of third party potential buyers of the real property due to publicity about nearby contamination. Adkins v. Thomas Solvent Company, 440 Mich. 293, 487 N.W.2d 715 (1992).
The Supreme Court of Michigan was careful to point out that the plaintiffs in that case had not made claims based on their own fears, but rather based on the effect on property values of the fears of third parties. Nevertheless, the form of the court's argument calls into question whether a court might continue to follow the Restatements rule, let alone adopt it, today. The court said:
Adkins, supra 487 N.W.2d at 726 (emphasis added, footnotes omitted).
The Michigan court cited the case of Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 218 A.2d 383 (1966) where the court denied an injunction against a half way house for selected parolees even though the plaintiffs alleged their own fears that the residents of the half way house would commit criminal acts in the neighborhood. The court there, like the court below in the case before us, required some evidence to substantiate the fears.
The referenced Tables 1, 2 and 3 all confirm this statement. Eight kinds of cancer were studied and the notes to all three tables clearly state: "Observed/Expected ratios that have a 95% Confidence Interval that brackets the value 1.00 are not considered statistically high or low." Id., at 2008-12. In every table for every kind of cancer for which there were observed cases the confidence interval included the value of 1.00; none of the observed levels of cancer were elevated to a statistically significant level.
The referenced report also says that "[f]ewer cases of all cancers combined are observed compared to expected." Id. at 2001. The report did find that residents, especially men, might be at moderately increased risk for lung cancer, but "the risk estimate is imprecise." Id., at 2002. The Jarvis report also states: "The finding of a modest increase in risk for lung cancer in Lincoln Park, even with imprecise estimates of the risk, begs the question whether exposure to millderived radioactive substances may be a cause of neoplasia in this community." Id., at 2003. After noting possible causes the report continues: "However, Figures 1 and 2 do not demonstrate either an unusual age distribution of lung cancer cases or a clustering of time diagnosis, both of which might be expected with an outbreak of lung cancer due to a point source environmental exposure." Id., at 2004.
Even if the elevated levels of lung cancer for men had been statistically significant a court might well take account of the statistical "Texas Sharpshooter" fallacy in which a person shoots bullets at the side of a barn, then, after the fact, finds a cluster of holes and draws a circle around it to show how accurate his aim was. With eight kinds of cancer for each sex there would be sixteen potential categories here around which to "draw a circle" to show a statistically significant level of cancer. With independent variables one would expect one statistically significant reading in every twenty categories at a 95% confidence level purely by random chance. Therefore, a court might reasonably look for some medical or other scientific evidence that the alleged exposure would be expected to cause lung cancer in men to be affected differently than other forms of cancer and lung cancer in women before concluding that higher rates for just this one form of cancer in this one segment of the population were anything more than a coincidence.
The plaintiffs did not argue that any other evidence of the likelihood of future cancer was introduced and given their statement that contamination has occurred for 30 years the absence of evidence of a past or present health effect is especially conspicuous.
The plaintiffs do argue that the area in which they live has been placed on the National Priorities List of the Environmental Protection Agency (EPA) and that this is evidence of the hazard to them. However, proof of damage to the environment is not equivalent to proof of danger to humans. The plaintiffs failed to show that the EPA status of their area demonstrates a human health hazard.