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Miller v. Cudahy Co.

Citation: 19 ELR 20177
No. Nos. 87-1502, -2283, 858 F.2d 1449/28 ERC 1344/(10th Cir., 09/28/1988) Aff'd in part

The court upholds the award of compensatory and punitive damages for tort claims based on salt contamination of irrigation water supplies. Farmers claimed that a neighboring salt manufacturing plant had added excessive levels of salt to the groundwater used by the farmers for irrigation. The court first holds that Kansas' two-year statute of limitations does not bar these tort claims, since the salt pollution is a continuing nuisance causing recurring, temporary damages. The court next holds that the correct measure of damages is the reasonable cost of repairing the damage. Although Kansas law makes the decrease in fair market value the measure of damages for permanent injury to real property, where the damage is temporary the measure is the reasonable cost of repairing the property and may also include the value of lost use of the property during the time concerned. The decrease in fair market value is not a cap on the damages that may be calculated and awarded for temporary damages. The damage calculations at issue here were proper, based on the different net value of the crops that were actually grown on the property compared to the crops that could have been grown but for the contaminated groundwater. The court next upholds the award of punitive damages, because the salt manufacturing plant persistently maintained the nuisance it had created with reckless disregard for the rights of others. Punitive damages cannot be reduced on the basis of events occurring after the trial. Kansas' punitive damages law is not made unconstitutional by the lack of a cap on the amount of punitive damages. The issue of whether liability may attach to the corporate parent of the subsidiary operating the salt plant is not properly before the court, since it was not timely raised at trial. Finally, the court holds that fees of expert witnesses not appointed by the court are subject to the statutory limits set out in 28 U.S.C. §§ 1821 and 1920.

[District court opinions in this case appear at 15 ELR 20050 and 17 ELR 21242.]

Counsel for Plaintiffs-Appellees
H. Lee Turner
Turner and Boisseau
3900 Broadway, Great Bend KS 67530
(316) 792-2441

Counsel for Defendants-Appellants
John Logan O'Donnell
Olwine, Connelly, Chase, O'Donnell & Weyher
299 Park Ave., New York NY 10171
(212) 207-1800

Before LOGAN, BARRETT and BALDOCK, Circuit Judges.