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Johnson v. Tipton

MODIFIED OPINION FILED ON DENIAL OF REHEARING FEBRUARY 16, 1982.

MARVIN JOHNSON ET AL., PLAINTIFFS-APPELLANTS,

v.

WALTER TIPTON ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiffs, members of a farm family, claim that they were injured in their health and property by heavy metal and phenol pollution resulting from storage of defendant Valspar Corporation's manufacturing wastes on the adjoining farm occupied by the defendant, Walter Tipton. A jury returned a verdict in favor of both defendants, upon which the trial court entered judgment. Subsequently, the court denied post-trial motions for judgment n.o.v. or, in the alternative, for a new trial. Plaintiffs appeal, contending that the verdict is against the manifest weight of the evidence and that various trial errors necessitate a new trial. Additionally, plaintiffs contend that the court erred in dismissing two members of the family, Elizabeth Johnson Schoon and Rebecca Johnson Hampton, who sought to be added as parties plaintiff in the amended complaint.

The plaintiffs moved to their farm on Wempleton Road in Winnebago County in early 1954. They used a 36-foot well ("the shallow well") for family purposes, including drinking, cooking, and bathing, without any problems until 1968, when they began noting an occasional off-taste and odor. They drank the water until May 16, 1972, when they noticed a strong foul taste and switched to using a neighbor's water. They drilled a deep well in March of 1974 and used water from it until September 1975 when they went back to hauling water. In March of 1976, plaintiffs moved from their farm.

The plaintiffs, after discovering the foul taste in 1972, made various attempts to obtain expert opinions as to any possible contamination of their water supply. In May of 1972, Gerald Kehoe of the EPA sampled water from the shallow well and found no abnormal concentrations of heavy metals. The EPA took samples in April of 1973 and at other times, and, according to Mrs. Johnson's testimony at trial, generally told the Johnsons that their water was within legal standards for drinking water.

Craig Loudat of the Illinois Department of Public Health inspected the shallow well in April of 1973 and arranged for an analysis of a water sample from the well. The analysis indicated no traces of heavy metals, but did reveal the presence of bacteria and "extremely high" levels of nitrates. The Winnebago County Health Department's analyses of water samples from the plaintiffs' well, also conducted in 1973, indicated negligible odor and no traces of heavy metals.

Rudy Loher, then of the Erickson Chemical Company, tested water samples and investigated the premises sometime before February 1, 1974. He noted the similarity of the odor of water from the shallow well and that of Tipton's quarry. Loher's subsequent analysis revealed 1.9 ppb of mercury in the water, above the 1973 discharge limits of .5 ppb. He advised the Johnsons not to drink the water from the shallow well. His analysis also revealed the presence of phthalate, a substance quite similar chemically to phenols. Loher also investigated the water in June of 1974, finding under .1 ppb of mercury and a low level of lead in the new well.

Dennis Johnson, then of the Illinois EPA, began investigations of the Johnson wells and property in July 1975, taking samples of water from both wells in September 1975. On his trip to the Johnson farm, Dennis Johnson observed the storage of wastes in both the quarry and hedgerow on the Tipton farm. He noticed that water from the shallow well had a distinct odor and "residual taste." He was also able to identify solidified resins in soil that he dug up from the hedgerow area.

Johnson broke off a piece of resin and had a laboratory analyze its chemical content. The sample was found to contain 290 ppb of phenol, which Johnson testified to as "hazardous" and toxic, and 290 times the 1972 Federal recommended standard of one ppb. Samples from the wells showed phenol concentrations of 6 ppb in the deep well and 7 ppb in the shallow well. The samples also showed mercury levels of 0.2 ppb in the shallow well and 0.0 ppb in the deep well.

Johnson testified that, in his opinion, "phenols, depending on their molecular structure, can be either one hundred percent soluble in water or limited to a fifty percent solubility" and that "fifty percent of a phenolic family of phenolic chemicals would be soluble in water." Valspar offered testimony by Frederick Heiss, who was in charge of Valspar's paint lab in the early seventies that its phenols were not water-soluble.

James Daugherty of the Illinois EPA analyzed four samples collected from barrels on the Tipton premises on December 10, 1975. The tests showed a phenol concentration of as much as 80,000 ppm.

Plaintiffs ascribe a large number of ailments to themselves and their farm animals to water from the shallow and deep wells. The plaintiffs' hogs developed breeding problems and birth defects beginning in 1968; the plaintiffs' cow occasionally gave milk with an off-taste before 1969 and was sold in 1970 because of failure to breed; in 1969 her six-month old calf convulsed and died. Chickens and family pets, including a canary, a gerbil, and two parakeets also developed a variety of physical ailments in the early 1970's.

Violet Johnson developed several ailments, beginning in 1967 with an allergy that caused swelling in her lip and loss of her voice. She began feeling tired and experiencing chills and stomach pains shortly thereafter up through 1974, and had one tumor or "polyp" removed between 1971 and 1972 and another removed in 1977. Her condition appears to have improved after 18 chelation treatments by physician John Olwin between November of 1978 and April of 1980.

Marvin Johnson started noticing problems with his health in 1969 with tiredness, headaches, trembling in his hands and had difficulty sleeping. He developed chest pains in 1973. A lump in his urine passage was removed in 1979.

Fred Johnson developed an allergy in 1967, along with a rash, stomach pains, and tiredness.

Donald Johnson's problems began in January 1970 with pains in the heels, difficulty walking, headaches, a sore throat, a rash, slurred speech, and allergies. In 1975 he was given an EEG; the result was abnormal. Dr. Hambrook, a neurologist, and Dr. Bender, a neurosurgeon, found no signs of heavy metal intoxication when they tested him in 1974. After seeing Dr. Olwin for treatment, Donald improved and felt "pretty good" by trial time.

Rebecca Johnson started experiencing stomach pains along with listlessness and a lack of strength in 1968. Her condition began to improve around 1973.

Elizabeth Johnson started feeling ill about 1967, experiencing stomach pains and a virus from which she recovered slowly, in addition to a skin rash and nervousness.

Dr. Olwin, the family physician, found high levels of lead in the urine of each family member and believed that the ill health of the family, except for Rebecca's, was linked to the high levels of lead. Dr. Ann Reynolds of Ohio State University testified that blood and hair samples from the plaintiffs indicated very high levels of mercury for Fred, Donald, Rebecca and Mrs. Johnson and that organic mercury in the water was a possible ...


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