Backes v. Valspar Corporation

Between 1976 and 1978, three of the Backeses’ children developed illnesses while living on the Johnson property. Valspar Corporation (defendant), a paint manufacturer, stored wastes of phenols and lead on the adjoining Tipton property until 1972. One child, Kathy, had lead in her bloodstream, and she developed rheumatoid arthritis. Royal Backes (plaintiff) sued Valspar on behalf of his children. Dennis Johnson, not related to the Johnson property, was a chemist formerly employed by the Illinois Environmental Protection Agency. In 1975 Dennis told the Johnsons not to drink the water after tests showed phenol contamination of the water. Other wells near the Johnson property were also contaminated. In 1980 Dennis found phenolic paint residue on the Johnson property, which he determined came from drums that Valspar placed on the Tipton property. Dennis’s affidavit stated that the wells on the Johnson property were contaminated when the Backeses lived there and that the children’s medical problems might or could have been caused by drinking the well water. Dennis’s affidavit mentioned that he testified for the Johnsons in their suit against Valspar. His affidavit further stated that the Backes children’s problems were consistent with the Johnsons’ medical problems, and that the phenol waste was one of the probable causes for the children’s medical problems. Valspar argued that only Kathy, who developed arthritis, had lead in her body. Valspar submitted an affidavit from a chemist stating that Valspar’s manufacturing used “minute quantities of lead” that produced the wastes stored on the Tipton property. Valspar also pointed out that no doctor suggested that any of the children’s symptoms were related to the water they drank, and that a lab report stated that its water sample did not contain unsafe levels of either bacteria or nitrates. The judge discounted Dennis’s affidavit on the ground that Dennis was not qualified to testify about Valspar’s wastes or the probable causes of the children’s illnesses. The district court granted summary judgment for Valspar on the ground that Royal had not presented evidence that Valspar’s wastes had caused the children’s ailments. Royal appealed.