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O'DELL v. HERCULES INC.

June 15, 1988

Steven O'Dell, et al., Plaintiffs,
v.
Hercules Inc., et al., Defendants, Ruby Bridges, et al., Plaintiffs, v. Hercules Inc. et al., Defendants



The opinion of the court was delivered by: RUBIN

 CARL B. RUBIN, CHIEF UNITED STATES DISTRICT JUDGE.

 This matter is before the Court upon motions for a new trial by both the Bridges plaintiffs (doc. no. 177) and the O'Dell plaintiffs (doc. no. 179) pursuant to Federal Rule of Civil Procedure 59. These motions have been opposed and supported with respective memoranda (doc. nos. 178, 180, 181, 182, 183, 184).

 Plaintiffs submit the following reasons as the bases of their motions for new trial:

 1) The jury verdict was against the preponderance of the evidence and is a miscarriage of justice;

 2) The admission of evidence concerning plaintiff Mr. Steven O'Dell's use of controlled substances was prejudicial error;

 3) Evidence of the O'Dell plaintiffs exposure to dioxin and other toxic chemicals was excluded from trial and such exclusion was prejudicial; and

 4) Evidence concerning remedial measures affecting the plant site was excluded from trial and such exclusion was prejudicial.

 Initially all plaintiffs submit as the bases of their motion for new trial that the jury verdict was against the preponderance of the evidence and is further a miscarriage of justice. The proper standard for a motion for a new trial on the ground that the verdict is against the weight of the evidence is well established in the United States Court of Appeals for the Eighth Circuit. In determining whether a new trial is in order, such a motion should only be granted when the verdict is against the "clear weight, overwhelming weight, or great weight of the evidence." McBryde v. Carey Lumber Co., 819 F.2d 185, 189 (8th Cir. 1987); Cole v. Williams, 798 F.2d 280, 282 (8th Cir. 1986); Goldsmith v. Diamond Shamrock Corp., 767 F.2d 411, 416 (8th Cir. 1985). "When through judicial balancing the trial court determines that the first trial has resulted in a miscarriage of justice, the Court may order a new trial, otherwise [the Court may] not." Cole, 798 F.2d at 282; McBryde, 819 F.2d at 189; Diamond Shamrock, 767 F.2d at 415; Fireman's Fund Insurance Co. v. AALCO Wrecking Co., Inc., 466 F.2d 179, 187 (8th Cir. 1972) cert. denied, 410 U.S. 930, 35 L. Ed. 2d 592, 93 S. Ct. 1371 (1973). Furthermore, a motion for new trial is committed to the sound discretion of the trial Court. McGee v. Hester, 815 F.2d 1193, 1197 (8th Cir. 1987) cert. denied, 484 U.S. 963, 108 S. Ct. 451, 98 L. Ed. 2d 392 (1987); Ryko Mfg. Co. v. Eden Services, 823 F.2d 1215 (8th Cir. 1987) cert. denied, 484 U.S. 1026, 108 S. Ct. 751, 98 L. Ed. 2d 763 (1987).

 This Court has exhaustively reviewed the evidence presented during this eleven day trial. A recitation of such evidence is unnecessary. The Court observes, however, that sufficient evidence was presented to support the jury's verdict in favor of the defendant. Thus, in accordance with the foregoing standard, this Court finds that a jury verdict rendered in favor of defendant Hercules Inc. is not against the clear, overwhelming or great weight of the evidence.

 Second, plaintiffs argue that a new trial should be granted because the admission of evidence concerning Mr. Steven O'Dell's use of controlled substances was prejudicial error. (Doc. nos. 178, 180). *fn1"

 Plaintiffs first point of contention is that Mr. O'Dell's use of controlled substances was not relevant to any issue at this trial; i.e., whether defendant created a risk of harm by releasing hazardous chemicals and whether releasing those chemicals was negligence (doc. nos. 178, 180). Conversely, defendant Hercules submits that this testimony was relevant to the question of ultrahazardous activity (or risk of serious harm). *fn2" Defendant further suggests that the risk of harm of prolonged exposure to "TCDD" around the plant site is relevant to the much less hazardous use of controlled substances. In addition, there arises the collateral issue of the voluntary or involuntary encountering of a serious risk of harm.

 In light of these issues, the decision to admit or exclude evidence is within the sound discretion of the trial Court. Green v. American Airlines, 804 F.2d 453 (8th Cir. 1986). Any ruling by the trial Court must take into account all matters pending before the Court at the time of such ruling. This Court finds that the very carefully controlled and closely scrutinized inquiry into Mr. O'Dell's use of controlled substances was indeed relevant to the plaintiffs claims with respect to the issues that were presented to the Court. Thus this Court is not persuaded by plaintiffs' argument.

 Plaintiffs' second point of prejudicial error is that Mr. O'Dell's use of controlled substances was not properly admissible for impeachment purposes. Defendant Hercules emphasizes that Mr. O'Dell was not cross examined ...


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