Appeal from judgment of Court of Common Pleas of Berks County, Aug. T., 1962, No. 312, in case of Wilbur F. Heck and Ruth E. Heck v. The Beryllium Corporation.
Seymour I. Toll, with him B. Nathaniel Richter, Edward L. Wolf, John J. McCarty, John A. McMenamin, and Richter, Lord & Cavanaugh, for appellants.
George P. Williams, III, with him John S. McConaghy, Samuel Kagle, Oscar Brown, and Schnader, Harrison, Segal & Lewis, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this concurring and dissenting opinion.
Plaintiff contracted a disease caused by inhalation of beryllium and, alleging defendant's liability for the resultant loss, instituted this suit. The lower court after a jury verdict for the plaintiff, granted judgment
notwithstanding the verdict. The trial court also found that a new trial would be proper and that the verdict was excessive, but it denied the motion for a new trial because it had granted judgment n.o.v.
Between 1939 and trial plaintiff resided within several miles of a plant of the defendant Beryllium Corporation. During that time, except for the period 1942-1943 when she laundered the workclothes of her brother who was then employed at the plant, she inhaled beryllium only from emissions of the substance from the plant. The record shows that the defendant knew of the toxicity of beryllium in 1947 and perhaps earlier. However, the toxicity level which was unsafe was not known to defendant until the Atomic Energy Commission, on March 30, 1950, issued tentative recommendations stating that the average monthly concentration should not exceed .01 micro-grams per cubic meter (mc3) for out-plant areas. The testimony shows that a safety factor of eight to ten was used in determining the recommended figure.*fn1
Plaintiff was only able to show (because of limitations on data available) that from the years 1951 to 1955 the defendant's emissions of beryllium exceeded the .01 mc3 standard at the location where plaintiff resided (although such emissions did not exceed the safety factor). Thus, her showing of any negligence was limited to that period.
In its opinion the lower court held, first, that defendant was not negligent before March 30, 1950. This ruling is correct. However, relying on the testimony of plaintiff's expert to the effect that if plaintiff had not been exposed before 1951 an exposure from that time to the date of trial in the intensity of her exposure from 1951 to 1955 would not have caused her illness,
the court then held that any negligence of defendant after March 30, 1950, could not have ...