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Donaldson v. Central Illinois Public Service

February 22, 2002

ZACHARY DONALDSON ET AL., APPELLEES,
v.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY ET AL. (CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, APPELLANT).



The opinion of the court was delivered by: Justice Fitzgerald

UNPUBLISHED

Docket No. 89679-Agenda 21-March 2001.

This is a toxic tort case. Plaintiffs are the parents of four children suing, on their own behalf and on behalf of their children, inter alia, Central Illinois Public Service Company (CIPS), the owner of a former manufactured gas plant in Taylorville, Illinois (Site). The plaintiffs alleged that certain acts or omissions by CIPS, and three of its contractors, during the cleanup of the Site caused their children to develop neuroblastoma, a rare form of cancer. The litigation spanned six years and included the exchange of hundreds of thousand of documents and more than 250 depositions of numerous witnesses. After a four-month jury trial, at which 77 witnesses testified, a jury returned a $3.2 million verdict for plaintiffs against CIPS. The appellate court affirmed the trial court judgment (313 Ill. App. 3d 1061), and we granted CIPS's petition for leave to appeal (see 177 Ill. 2d R. 315). For the reasons discussed below, we now affirm the judgment of the appellate court.

BACKGROUND

In this toxic tort case, plaintiffs allege that exposure to an environmental condition caused their children to develop neuroblastoma, a peripheral nervous system cancer. In most cases, neuroblastoma develops in young children and infants. Statistics show that 9 out of every 1 million children born develop neuroblastoma.

Taylorville, located in Christian County, is a town which recorded 520 live births in 1988. Statistically, a case of neuroblastoma occurs one time every 29 years in a community the size of Taylorville. Between March 1989 and August 1991, during approximately a two-year period, three infants and a teenager in Taylorville were diagnosed with neuroblastoma. Zachary Donaldson was conceived in December 1987 and was born on September 7, 1988. Six months later, in March 1989, Zachary was diagnosed with neuroblastoma. At the time of trial, Zachary was in remission from his illness. Chad Hryhorsysak was conceived in April 1989 and was born January 12, 1990. Chad was diagnosed with neuroblastoma six months after his birth, in March 1990. As a result of his illness, Chad is paralyzed from the waist down. Erika May was conceived in February 1989 and was born November 27, 1989. She was diagnosed with neuroblastoma two months later, in January 1990. At the time of trial, she was in remission from her illness. Lastly, Brandon Steele was born on March 17, 1978. On August 9, 1991, at age 13, Brandon was diagnosed with neuroblastoma. Brandon died on January 19, 1993.

Plaintiffs claim that the statistical excess of neuroblastoma cases in Taylorville was caused by their exposure to potent chemical carcinogens released, in part, during the cleanup of the Site. The Donaldsons lived one mile from the Site, the Hryhorsysaks lived three miles from the Site, and between 1985 and 1989 the Mays lived in several locations near the Site, the closest one-half mile away and the farthest eight miles away. During his lifetime, Brandon Steele lived two miles from the Site. We now turn to the Site.

Prior to the widespread use of natural gas, the United States relied upon gas produced from fossil fuels, generally coal, to generate heat and light. In 1892, Taylorville Gas and Electric Company constructed a gas plant on the southern edge of Taylorville. CIPS purchased the Site in 1912 and continued plant operations until 1932. During this 20-year period, CIPS produced gas at the Site through a commonly used gasification process. This process produced tar byproducts called coal tar. Coal tar was often stored in underground tanks and later sold for use as roofing tar, road oil, or weed killer. In 1939, CIPS decommissioned the Site. This included the destruction and dismantling of above-ground structures. However, large underground tanks and containers with 50,000 gallons of residual coal tar were left buried. CIPS used the Site for storage until its sale in 1961, at which time the 50,000 gallons of residual coal tar buried underground was not disclosed.

In 1980, Congress passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) (42 U.S.C. §9601 et seq. (1982)) to facilitate the cleanup of hazardous waste sites. CERCLA imposed retroactive liability for the disposal of hazardous waste and ordered all companies that owned and operated hazardous waste facilities to notify the federal Environmental Protection Agency (USEPA). 42 U.S.C. §9603(c) (1982). An internal CIPS memorandum, dated May 1981, indicates that CIPS understood this reporting provision, but determined that because the notification requirement was not "mandatory," there was "no advantage to be gained in prematurely notifying *** because of the potential consequences of such a disclosure." Therefore, CIPS did not disclose to the USEPA the existence of the underground coal tar storage tanks at the Site.

In the early 1980s, the carcinogenic potential of coal tar gained increased publicity and concern in the utility and regulatory industries. For example, one newspaper article, entitled "Coal Gasification May Yield Cancer-Causing Chemicals," discussed coal tar and its cancer-causing potential. CIPS internally circulated this article and noted that the issue was generating increased "concern at the national and state level." Additionally, a published study in the Handbook on Manufactured Gas warned that some chemicals in coal tar "are among the most powerful carcinogens known to exist." Aware of the risk, CIPS, through its environmental affairs department, conducted an independent on-site investigation of its manufactured gas plants and drafted a final report discussing the condition of, and potential risk at, each of its abandoned gas-manufacturing sites, including the Site. CIPS forwarded this report to its insurer and applied for "Gradual Environmental Impairment" insurance to cover "potential claims." CIPS did not report the coal tar sites to any state or federal agency or notify current owners of the potential risk.

In October 1985, contamination was discovered at the Site by its then owner, Apple Contractors. A contractor for Apple Contractors, while attempting to place a private septic line in the ground for sewage disposal, noticed strong odors, discolored soil, and a dark viscous material throughout the soil. Unaware that the soil was hazardous, the contractor removed the surface soil and transported it to a farm in nearby Moweaqua, Illinois. At the same time the surface soil was disturbed, Taylorville authorities recorded complaints about strange odors near the Site and in the adjacent public park. Notably, the Site is bordered by private residences to the north, a wooded area to the south where some homes exist, and Manners Park, a public recreation area to the east.

Less than one month later, in November 1985, CIPS notified the Illinois Environmental Protection Agency (IEPA) that the Site contained buried contaminants. CIPS hired an independent contractor, Hanson Engineering, Inc. (Hanson), to complete a "remedial investigation/feasibility study" to assess the extent of soil contamination at the Site and the area south of the Site. Monitoring revealed extremely high concentrations of volatile chemicals on the Site, in the area surrounding the Site, and in the adjacent public park to the east. In some areas, monitoring detected soil contamination at a depth of 95 feet. A Hanson employee recommended "use of the lot south of the building be immediately prohibited." A second contractor, hired by CIPS to detect and minimize emissions, observed that the presence of such high levels of volatile agents, coupled with the Site's close proximity to residents living to the north, required "a strong effort to detect and reduce these emissions."

Soon after, CIPS met with the IEPA. The IEPA notified CIPS that it would review cleanup activities to ensure their adequate completion. Before beginning soil excavation, CIPS assessed the Site to determine the extent of contamination in the soil, tank, and groundwater, and to identify potential off-site contamination. CIPS called this assessment "Phase I." Coal tar may contain up to 10,000 different chemicals; CIPS tested for approximately 190 different compounds. This testing detected the presence of various carcinogenic compounds, including polynuclear organic (aromatic) hydrocarbons (PAHs) and volatile organic compounds (VOCs). Although contained in initial drafts of the Phase I report, risk assessment and health information was deleted from the final report submitted to the IEPA.

Approximately six months later, in July 1986, the IEPA issued a notice under section 4(q) of the Illinois Environmental Protection Act (hereinafter, 4(q) Notice) (415 ILCS 5/4(q) (West 2000)), a formal administrative order. The 4(q) Notice imposed deadlines and reporting requirements and required that CIPS conduct an "immediate removal action" to excavate the underground structures and other contaminated material on the Site before April 1987. CIPS was required to submit cleanup plans, including air monitoring, safety and quality assurance plans, and a feasibility study for the immediate removal action. Cleanup plans were developed by CIPS's contractors, approved by CIPS, and submitted to the IEPA to guarantee regulatory compliance. Five months later, CIPS completed its assessment and submitted a "Phase II" report to the IEPA. This final report detailed the substances at the Site, discussed their impact upon the public and the environment, and outlined procedures planned for the immediate remedial action.

As part of the immediate removal action, CIPS implemented an air-monitoring plan to measure particulate emissions and identify the ambient air quality during the excavation. Emissions particles vary in size, such that matter may be small enough to be easily respirable and undetectable to sensory perception such as smell, taste, or sight. Particles, including coal tar chemicals, may bond to soil particles. Moreover, wind speed and temperature influence emissions. Therefore, CIPS approved the use of stationary equipment placed in trailers to monitor emissions 24 hours a day, while technicians also performed spot testing several times a day with portable hand-held instruments. If the ambient air quality reached certain levels, defined within the remediation plan, workers took safety precautions and the Site was shutdown.

CIPS initiated air monitoring, in part, to "minimize liability from `real' or frivolous lawsuits." Internal documents encouraged "minimal data collection necessary to quantitatively document the principal compounds of concern, thus providing a data base for use in response to potential inquiries or claims from the nearby residents or Manners Park users" because "without [emissions data] they [CIPS] have no data if neighbors claim damages." By the time of discovery, the computer data base and original data had disappeared. In its place, CIPS offered a summary of the data, prepared internally, called the Air Monitoring Report, as its "best evidence." The report was offered during trial, and to government agencies during final remediation discussions, as a basis to show that exposure did not occur.

CIPS began the remediation on January 20, 1987. Workers removed building debris, an above-ground gas holder, two underground structures (separators), and 9,000 cubic yards of soil. CIPS required the use of gas masks and protective clothing during removal of the buried structures. Hanson and Parsons Engineering Services, Inc. (Parsons), the on-site contractors, recommended relocating residents during removal of the buried structure, but CIPS declined to follow their suggestion. Excavated material and soil were removed from the Site by truck, and soil that was not trucked away at the end of the day was covered with plastic foam.

Air monitoring detected emissions above the National Air Quality Standards (NAAQS) primary health based standard for particulate emissions on seven days during the first three months of excavation. Additionally, on February 8, 1987, a Site security guard reported that high winds blew dust "all over." Two days later, on February 10, 1987, an air-monitoring station reported a NAAQS exceedance, and a local resident was hospitalized with an intense headache, nausea, blurred vision, and convulsions. She was diagnosed with an acute attack caused by some toxic cause. The Site diary indicates that CIPS was advised of the incident. On February 11, 1987, the Site project manager expressed "great concern" about air emissions at the Site, and "wanted to be on record as pushing for shutdown and resident relocation." During this same time, truck drivers removing the soil and waste complained of nausea. As a result, the drivers were advised to wear respirators once they crossed the railroad tracks near the Site. However, residents living in this same area were not warned or relocated. At trial, CIPS maintained that NAAQS exceedances were the result of other sources, such as truck exhaust and burning leaves, and not the excavated soil.

The Site was shutdown, and the initial cleanup completed, on March 2, 1987. CIPS did not backfill the excavation with soil. CIPS and the IEPA disagreed about the scope of further remediation and the proper depth of excavation; the IEPA believed that further excavation and soil removal were necessary. Internal CIPS documents state that the meetings were "adversarial (swearing, rolling of eyes, threats of bad communication)." The IEPA attributed CIPS's refusal to conduct further remediation to "economic concerns rather than best judgment." During this conflict, with IEPA approval, CIPS covered the hole with styrofoam and plywood sheets to reduce dust emissions and volatilization.

For two years, between March 1987 and spring 1989, plywood and stryofoam covered the hole. CIPS and the IEPA continued to disagree about further remediation measures. In July 1987, CIPS discontinued particulate testing and dismantled the air-monitoring program and, instead, took weekly emission measurements around the perimeter of the Site. CIPS discontinued particulate matter testing because once excavation was completed, CIPS felt that an increase in particulate matter was not likely. The readings gathered from the weekly tests did not detect unusual emissions or NAAQS violations. Eventually, in April 1989, the IEPA granted CIPS approval to permanently backfill the hole.

The Illinois Department of Public Health (Department) examined the unusually high statistical incidence of neuroblastoma cases in Taylorville. Initially, the Department studied the genetic relatedness between families; scientific testing defeated this theory. In June 1990, the Department prepared a final draft "Preliminary Health Assessment" report for the Site. The report was available to the public for review and made available to CIPS for comment. The report concluded that the Taylorville "population had been exposed to *** dust entrained contaminants *** largely as the result of limited remedial action on the part of CIPS." Further, the report stated that the Site "is considered to be of potential public health concern because of the risk to human health caused by the possibility of exposure to hazardous substances. *** The contaminants are present at the site in large quantities and the presence of significant quantities of contaminated soils represents a source of continuing release to the environment."

CIPS argued to the Department that its report was misleading, stating that more recent CIPS air-monitoring data contradicted the Department's assessment and that the report "should be based on current Site conditions." CIPS maintained that this current data was available in its Air Monitoring Report, the only available source of information regarding ambient air at the Site. Based upon CIPS's Air Monitoring Report, the Department's report was modified to state that "the lack of likely completed exposure pathways makes the CIPS site an unlikely cause of the neuroblastoma excess." The Department's report was finalized as modified despite commentary from the USEPA that because "air emissions occurred during the excavation and likely occurred while the excavation was left open for two years, it appears to be likely that some exposure occurred to residents surrounding the Site."

In 1991, the May and Hryhorsak families filed a complaint against CIPS and Hanson in Christian County. This complaint contained counts of negligence, nuisance, conspiracy, willful and wanton conduct, and spoliation of evidence. Approximately four years later, plaintiffs voluntarily dismissed this lawsuit, and refiled a second action three months later in Sangamon County, adding conspiracy and negligent remediation counts, as well as additional plaintiffs, the Donaldson and Steele families, and additional defendants, Haztech, Inc., and Parsons. In 1996, upon CIPS's joint motion to tranfer for forum non conveniens, the cause was transferred to Christian County.

Prior to trial, Haztech, Inc., settled with plaintiffs, and the trial court dismissed the Steeles' claims against Hanson and Parsons. Further, the trial court denied plaintiffs' claims for punitive damages. At trial, plaintiffs called three experts to connect the neuroblastomas to the toxins at the Site. Plaintiffs called Dr. Shira Kramer, an epidemiologist specializing in childhood cancers; Dr. Harlee Sue Strauss, a toxicologist specializing in molecular biology; and Dr. Thomas Winters, a physician specializing in occupational and environmental medicine. CIPS responded with numerous experts and plaintiffs' own treating physicians, all of whom testified that the cause of neuroblastoma is unknown, and that they could not testify within a reasonable degree of medical certainty that exposures from the Site caused the particular neuroblastomas in this case.

At the close of plaintiffs' case, the trial court denied CIPS's motion to strike plaintiffs' expert testimony and its motion for a directed verdict. The jury returned a $3.2 million verdict in favor of plaintiffs against CIPS alone, finding CIPS liable for negligence and public nuisance. The trial court entered judgment on the verdict on March 27, 1998, and CIPS appealed.

On appeal, the appellate court affirmed the judgment of the circuit court on both negligence and public nuisance. 313 Ill. App. 3d 1061. The appellate court concluded that "there was adequate evidence of causation," and that the verdict was not contrary to the manifest weight of the evidence. 313 Ill. App. 3d at 1079. This appeal followed. See 177 Ill. 2d R. 315.

ANALYSIS

I. The Admission of Expert Testimony

As an initial matter, CIPS suggests that the trial court committed reversible error when it denied CIPS's motion for a Frye evidentiary hearing to determine whether the testimony of plaintiffs' experts, Drs. Kramer, Winters, and Strauss, was admissible. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under the circumstances of this case, we conclude that any error was harmless.

CIPS filed its Frye motion two weeks before trial. On October 21, 1997, the trial court denied the motion. As observed by the appellate court, on October 21 the trial court "dealt with 30 separate motions or issues and [the order] was nine pages in length." We also recognize, as did the appellate court, that CIPS's late effort played a part in the trial court's ruling: "[a] Frye hearing would not only be extremely time consuming in light of the time remaining until trial, but it would be a considerable expense to the parties."

Furthermore, in effect, although informally, the trial judge conducted a Frye hearing. The hearing transcripts from October 21 indicate that the issues subject to the Frye hearing were discussed during the hearing and previously addressed on numerous occasions by the court in the months before the trial. CIPS conceded during the hearing that it was motivated to seek a Frye hearing simply to "create a good articulable record that is zeroed in on those very points [Frye issues]." In prior motions before the trial court, such as CIPS's "Motion to Exclude Testimony of Plaintiffs Expert Witnesses Kramer, Strauss, and Winters" and its "Joint Motion for Summary Judgment on Issue of Generic Causation," the trial court addressed the same issues subject to a Frye hearing. In ruling on these motions, the trial judge examined thousands of pages of deposition testimony, including four depositions of Dr. Kramer, two depositions of Dr. Strauss, and three depositions of Dr. Winters. As a result, the trial judge was well ...


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