O'Dell v. Sun Refining and

Tenth Circuit

O'Dell v. Sun Refining and

CourtCourt of Appeals for the Tenth Circuit

DecidedMarch 31, 2000

Docket99-5048

StatusUnpublished

This text of O'Dell v. Sun Refining and (O'Dell v. Sun Refining and) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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O'Dell v. Sun Refining and, (10th Cir. 2000).

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Opinion

F I L E D United States Court of Appeals Tenth Circuit MAR 31 2000 UNITED STATES COURT OF APPEALS PATRICK FISHER TENTH CIRCUIT Clerk ____________________

RONALD E. O’DELL and PAULA O’DELL, husband and wife,

Plaintiffs-Appellants, No. 99-5048 (D.C. No. 98-CV-487-B(J)) vs. (N.D. Okla.)

SUN REFINING AND MARKETING COMPANY, a Pennsylvania corporation,

Defendant-Appellee. ____________________

ORDER AND JUDGMENT* ____________________

Before TACHA and BRISCOE, Circuit Judges, and ROGERS, Senior District Judge.** ____________________

This is an appeal from a 1999 district court order dismissing plaintiffs’ complaint to

vacate a judgment entered by the district court in 1991 following a jury trial. Three issues

are raised by plaintiffs: 1) whether the district court erred in determining that the complaint

failed to state a claim upon which relief could be granted; 2) whether the court erred in

concluding that the complaint was not filed in a reasonable time; and 3) whether the court

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3. ** The Honorable Richard D. Rogers, Senior United States District Judge for the District of Kansas, sitting by designation. improperly considered material outside the pleadings in granting the motion to dismiss. After

careful review, we shall affirm the district court’s order without reaching the final two

issues.

BACKGROUND

This action seeks relief from a judgment entered in a case plaintiffs filed alleging

damages from a release of hydrogen fluoride gas on March 19, 1988 by the defendant Sun

Refining and Marketing Company at its refinery facility in Tulsa, Oklahoma. This complaint

was filed on July 6, 1998. The original action, Ronald E. O’Dell and Paula O’Dell v. Sun

Refining and Marketing Company and E.I. DuPont De Nemours and Company, Case No. 89-

C-434-B (“O’Dell I”), was filed May 24, 1989. In O’Dell I, plaintiffs alleged injury and loss

of consortium from the hydrogen fluoride (HF) release. Ronald O’Dell alleged exposure to

the gas as he was performing his duties as a police officer. His wife, Paula O’Dell, claimed

loss of consortium. The jury, which found gross negligence on the part of defendant,

returned a verdict for Ronald O’Dell, but only for $1.00. Zero damages were awarded to

Paula O’Dell.

PLAINTIFFS’ ALLEGATIONS

In the case now on appeal, the lengthy complaint alleges that defendant “with the aid

and assistance of its attorneys” perpetrated a fraud on the court, plaintiffs, the Environmental

Protection Agency and the Occupational Safety and Health Administration with regard to the

true volume of the HF release and the operating conditions which permitted the gas to be

2 routinely vented into the atmosphere. This occurred, the complaint alleges, when defendant

“through its attorneys” failed to produce documents in defendant’s possession which would

have demonstrated that the HF release was significantly larger than asserted by defendant.

These documents were withheld, according to the complaint, under wrongful claims of

privilege or by denying that the documents existed. It is further asserted that defendant

through its attorneys placed witnesses on the stand and made presentations to the court which

misrepresented the volume of the HF release on March 19, 1988. Plaintiffs further assert that

the withholding of documents made it difficult to buttress the deposition testimony of a

former Sun employee who stated there was a “massive carryover” of HF on the day in

question. More specifically, the complaint asserts that the following documents were

withheld from plaintiffs in spite of plaintiffs’ efforts to discover them.

Calculations Regarding the Volume of the March 19, 1988 Release. Plaintiffs claim

that a “Form R” report (also known as a SARA report) regarding the amount of HF emitted

was in defendant’s possession but was not produced in response to interrogatories which

requested: (in interrogatory 17)“[A]ll writings or documents submitted by you to any

governmental agency or representatives thereof in connection with such agencies’

investigation of the hydrogen fluoride release . . . . [and in interrogatory 23] documents

utilized in analyzing and determining . . . amounts of hydrogen fluoride released . . . . [and

in interrogatory 24] the source of information relied upon . . . in determining [the] amount

of hydrogen fluoride released . . .” Defendant identified or promised to make available some

3 sources of information in response to the interrogatories, but did not produce or identify the

“Form R” report. Defendant also objected that the interrogatories were overbroad, an

objection frequently repeated in connection with plaintiffs’ discovery requests.

Insurance Claims Associated with the March 19, 1988 HF Release. Plaintiffs assert

that defendant had telephone contact logs with names, phone numbers, and addresses of

persons who claimed to have incurred damages from the HF release but did not reveal all of

this information in response to an interrogatory. Defendants did respond to the interrogatory

with a list of 84 names. Thirty-six of the names were listed with addresses. Sixteen of the

names were listed with phone numbers. Plaintiffs assert that defendants only produced a

partial listing of damage claims.

Technical Materials Regarding HF Fog Formation. Plaintiffs assert that an

information booklet published by DuPont (the maker of HF) and titled “HF Fog Formation”

was in defendant’s possession but not produced in response to interrogatory 29, which asked

for documents pertaining to HF, and a request for production of safety programs (including

booklets and pamphlets). Defendant identified eighteen publications in response to

interrogatory 29 and produced a list of safety training videos and documents in response to

the request for production.

Investigation Reports Regarding the March 19, 1988 HF Release. Plaintiffs allege

that a safety marshal’s log and a memo with a report describing the emergency response to

the HF release were not produced in response to a request for a production of documents

4 including, “All records concerning the General Accounting Office Investigation referred to

by Tom McCollough in his deposition.” This request for production was objected to as not

relevant, privileged and unduly burdensome. Apparently, this response was not challenged

with a motion to compel.

Logs and Inventory of HF Relating to Alky Unit #2. Plaintiffs allege that five

documents (an acid log, a supervisor’s log, a safety marshal’s log, Du Pont HF invoices, and

an Alky Unit #2 log) were produced in other litigation arising from the HF release but not

produced in O’Dell I. Plaintiffs list four requests for production which plaintiffs contend

should have covered these documents. Of these requests, defendant responded affirmatively

to two and labeled a third as “repetitive”. The fourth request for production asked for a

“supervisor’s daily sheet from November 1, 1987 to June 1, 1988.” Defendant indicated that

it did not have that document.

Mock HF Release Drill. Plaintiffs allege that defendant did not produce notes or

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