THE SUPREME COURT OF PRINCETON

Moot Court Case, The First.

Ross McELWAIN and Edith McElwain, husband and wife, Plaintiff-Appellants,

v.

GEORGIA-PACIFIC CORPORATION, a corporation, Defendant-Respondent.

Brief for the Plaintiff-Appellants

Asad Zafar Haider

Attorney for the Plaintiff-Appellants (pro hac vice)

Argued: March 13th, 2017

Core Theory:
The testimony of the defendants in-house expert and suspect timing of the installation of
pollution controls by the defendant constitute sufficient evidence of the possibility of malicious
action qua wrongful acts done intentionally for the issue of punitive damages to be heard by a
jury.

Statement of Facts:
Georgia-Pacific Corporation began operating its Paper plant circa January 1st, 1958. The
palntiff-appelants, Ross and Edith McElwain own approximately 2.5 acres of land directly east
of the mill, and reside in a dwelling on this land. They allege that almost since the beginning of
the operation of the mill, 'certain noxious and toxic gases, fumes and smoke and particles' have
been emitted by the plant and been blown onto their property, resulting in the death of trees and
vegetation on their property as well as [depreciation of] the value of the property generally.
McElwain v. Georgia-Pacific 245 Or. 247, 421 P.2d 957 (1966). The McElwains sued, arguing
that the defendants actions constituted both nuisance and trespass and thereby sought both the
recovery of $35,000 in compensatory damages as well as a further $20,000 in punitive damages.
The Circuit Court, Lincoln County, Stewart Weiss, J. presiding, gave judgment in favor of
the plaintiff after withdrawing the issue of punitive damages from the jury. The jury awarded the
McElwains $2,000 in compensatory damages. The McElwains appeal the withdrawal of punitive
damages from consideration of the jury by the trial Court was erroneous. Consequently the
question before the Court is this. What is the standard for deciding whether a plaintiffs is
entitled to have their suit for punitive damages heard by a jury, and have the McElwains met this
standard?

Argument:
Recovery of punitive damages is sanctioned where there is evidence of malice, which is nothing
more than a wrongful act done intentionally, without just cause or excuse. Syfert v. Solomon, 95
Cal.App. 228, 27i P. 810 (1928); Wendelken v. Stone, 88 N.J.L. 267, 86 A. 376 (1913); Beetschen
v. Shell Pipe Line Corp. (Mo.App.) 248 S.W.2d 66 (1952). Moreover, [where] there is proof of
an intentional, unjustifiable infliction of harm with deliberate disregard of the social
consequences, the question of award of punitive damages is for the jury. Vaughn v. Missouri
Power & Light Co. (Mo.App.) 89 S.W.2d 699 (1935); Funk v. Kerbaugh, 222 Pa. 18, 70 A. 953,
22 L.R.A,N.S., 296 (1908); Yazoo & M.V.R. Co. v. Sanders, 87 Miss. 607, 40 So. 163, 3
L.R.A.,N.S., 1119 (1906); McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 172 P.2d 758
(1946); Louisville & N.R. Co. v. Bolton, 18 Ky.Law Rep. 824, 38 S.W. 498 (1897); Krebs v.
Bambrick Bros. Const. Co., 144 Mo.App. 649, 129 S.W. 425 (1910). i Accordingly, the
McElwains need to demonstrate Georgia-Pacifics actions were intentional and unjustified and
therein demonstrated a deliberate disregard for the McElwains, to receive punitive damages.
However, this isnt the question before this Court. It is whether the McElwains have the right to a
jury trial for punitive damages. They must only demonstrate to this Court that it isnt reasonably
impossible that Georgia-Pacific acted maliciously. That Georgia-Pacific act in a manner that a
reasonable person would consider malicious is not something that they need to convince this
Court of today. Instead, it will fall on them to convince the reasonable persons in a jury of their
peers, of Georgia-Pacifics malice, should the Court uphold their sixth and seventh amendment
rights to do so today. This is hardly a radical suggestion it is a matter of settled and deeply
revered law, a fact to which the defense will surely stipulate!
I. Let the Court disregard, arguendo, all the facts in evidence and consider only the
judgment of the lower Court with regards to guilt and the award of compensatory damages. Per
the aforementioned judgment, Georgia-Pacific is enjoined to pay $2,000 to the McElwains
because they were found guilty of trespass; we know a fortiori they acted either acted
intentionally or with gross negligence. Similarly, we can conclude a fortiori from the judgment
that there was harm caused to the McElwains. By definition, compensatory damages are only
awarded as compensation for some damage caused (as opposed to being awarded to discourage
certain behaviors or punish the defendant that is either accomplished through other remedies,
notably injunctions or punitive damages, or is the purview of criminal law).
Therefore, using only the judgment, it can be seen that Georgia-Pacific intentionally or
through gross negligence harmed the defendants (the evidence shows it is the former case, not
the latter). In the former case, Georgia-Pacific has intentionally committed a wrongful act. In the
latter case, although Georgia-Pacific has not committed a wrongful act intentionally, it has
nonetheless intentionally chosen to disregard the social consequences of its actions.
Per the cases discussed at the beginning of this section, all that remains to be shown to
prove the possibility of malice is that Georgia-Pacifics actions were unjustified. For this, no
special intelligence or knowledge is required only common sense. If someone were to dump
their trash in your garden for five years, it wouldnt be your burden to prove why it they were
unjustified in doing so it would be your neighbors to prove why her actions were acceptable.
The only difference is that Georgia-Pacific did it with gas, not solid waste. If anything, what
Georgia-Pacific is worse; garbage only smells bad it does not kill your plants, unlike the
effluents from the mill. In short, the burden is never on the plaintiff to show that the harm done
to them was unjustified the infliction of harm is unjustified per se, until proven otherwise. The
burden rests on the defendant to show why their intentional disregard of the person, rights and
dignity does not merit punition. Therefore, it is natural to conclude from only the judgment of
guilt that Georgia-Pacific intentionally or grossly negligently harm the McElwains and was
possibly unjustified in doing so.
These three conditions fulfill the standard provided by the Court for negligence. Vaughn
v. Missouri Power & Light Co. (Mo.App.) 89 S.W.2d 699 (1935); Funk v. Kerbaugh, 222 Pa. 18,
70 A. 953, 22 L.R.A.,N.S., 296 (1908); Yazoo & M.V.R. Co. v. Sanders, 87 Miss. 607, 40 So.
163, 3 L.R.A.,N.S., 1119 (1906); McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247, 172 P.2d 758
(1946); Louisville & N.R. Co. v. Bolton, 18 Ky.Law Rep. 824, 38 S.W. 498 (1897); Krebs v.
Bambrick Bros. Const. Co., 144 Mo.App. 649, 129 S.W. 425 (1910). Syfert v. Solomon, 95
Cal.App. 228, 27i P. 810 (1928); Wendelken v. Stone, 88 N.J.L. 267, 86 A. 376 (1913); Beetschen
v. Shell Pipe Line Corp. (Mo.App.) 248 S.W.2d 66 (1952). Not only should the McElwains have
the right to a trial for punitive damages based solely on the judgment of the trial Court re
compensatory damages, but that ceteris paribus, a judgment of guilt in cases of trespass and an
attendant award of compensatory damages prima facie confers a right to a jury hearing for
punitive damages.
II. The preceding section considers the general class of cases where the defendant has been
convicted of knowingly polluting the plaintiffs property, and consequently harming the plaintiff,
and made to pay compensatory damages. We respectfully urge the Court not to disregard this
argument, but should it do so, the particular facts of this case, hitherto disregarded, nonetheless
entitle the McElwains to a jury hearing for the recovery of the punitive damages they seek.
There question of fact at issue here is simple. Would it be impossible for a reasonable
jury to come to any conclusion other than that Georgia-Pacific acted with the regard for the
social consequences of its profitable operations? Could a reasonable jury answer in the
affirmative to both questions despite a prior conviction for trespass and award of compensatory
damages on the very same issue? To this effect, there are two key witness testimonies, from Dr.
Taylor, head of Georgia-Pacifics pollution control program, and Dr. Hatchard, head of the air
quality control section of the Oregon State Sanitary Authority and one piece of evidence, namely
the timeline of the installation of the pollution control equipment in the mill.
Dr. Taylor readily testified that [particulates] have been escapingsince we started up.
When asked about the adequacy of the control, did the element of cost enter into
consideration? He responded we take into consideration cost, yes. He added, [pollution
control measures] were adequate, but it was at least my desire to do a better job. So, not only
was Georgia-Pacific aware of its pollutant activities, it was capable of doing a better job but may
not have due to profit considerations. Further evidence supports this; the installation timeline
indicates that 7 separate kinds of pollution control were added or repaired during the initial trial.
Save for one of these, the defendants offered no explanation as to why these could not reasonably
have been installed in the three years between the last installation prior to the trial, in 5/60, and
the first one after it began, in 4/63. To a reasonable person, this might seem like a cover-up of
five years of deliberate disregard for the consequences of the mills operation. Whether this is
true is irrelevant - that a plausible question of fact (not of law) exists mandates prima facie a trial
by jury.
Dr. Hatchard offered some explanation; when asked if, controlling emissionsis that
something where youpick up a piece of equipment that is readily available and that solves the
problem? He responded that [It wasnt] quite the case. When asked if it was a trial and
error process, he said, each mill is somewhat differenthas to be designedstudied, tested,
and often smaller test runs have to be made to know whether it will do what [is] needed.
Whether this explanation is sufficient to explain Georgia-Pacifics activities is yet another
question of fact. It is not, however, proof that Georgia-Pacific acted in a manner that could not
possibly be reproached by a reasonable person. Since the standards are so fluid, as Dr. Hatchard
said, it becomes even less clear what standard Georgia-Pacific should be held to! Georgia-
Pacifics conduct was clearly a subjective response to an arbitrary standard. That does not prove
clear lack of malice on the balance of the evidence it proves a lack of clear evidence to balance,
which is precisely the task of a jury. McElwain v. Georgia-Pacific 245 Or. 247, 421 P.2d 957
(1966).
III. In Becker v. Pearson, 241 Or. 215, 405 P.2d 534, 537 (1965) this court has held that
punitive damages are not favored in the law, a fact that plaintiffs are cognizant of. However,
Georgia-Pacifics actions have ruined the McElwains home. Such conduct merits at least the
consideration of punitive damages if it does not then, then there seems to very little short of
criminal activity that might merit punitive damages, rendering them effectively unusable, which
would run counter to a hundreds of years of precedent. Punitive damages may not be favored in
the law, but they are very much in it.
Punitive damages, when awarded, have the potential to shut down industries, an outcome
that is rarely, if ever, acceptable. Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn.
331, 83 S.W. 658; State of Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51
L.Ed. 1038; 237 U.S. 474, 35 S.Ct. 631, 59 L.Ed. 1054; 240 U.S. 650, 36 S.Ct. 465, 60 L.Ed.
846. That is by no means what the McElwains want. The amount they have asked for in
damages, $20,000, would be unlikely to shut down Georgia-Pacific, if it is awarded at all. But
such a question should by answered by experts, not assumed by lawyers, which can only happen
in a trial by jury. Further, if it is possible that a reasonable jury can find so much evidence of
malice that it would award punitive damages in amounts that could potentially shut down
Georgia-Pacifics mill, then there clearly must be sufficient evidence for the case to go trial in the
first place. And if it is not the case, then concern of shutting down the industry vanishes.
Moreover, if a jury were to err to egregiously as to award punitive damages without merit, the
defendant can appeal to this court. But to deny the McElwains their full day in court over
hypothetical concerns would be profoundly unjust.
Personal Opinion:

It seems to me that this case is straightforward. The trial judge seems

partisan; as Chief Justice McAllister points out in his opinion, the trial judge
excluded much of the evidence about the nature of the effluent deposited on
the McElwains land. I cannot think of why this is mentioned, other than to
point out some error in a backhanded manner. The question itself need not
be addressed in the opinion, as McAllister again alludes to, since the retrial
will come possibilities of rehearing about evidence etc. The salient point is
here is that the judges JMOL and evidentiary rulings indicate a partisan
stance that may be favoring the defendant.

It seems to me that this case is straightforward. Regardless of the trial

judges leanings, whether the preponderance of evidence is in the favor of
the defendant or not is reasonably questionable. I would expect to hear
differing opinions if I were to ask any 12 people. Therefore I would remand
and order a retrial for punitive damages. I would expect the jury to deny
punitive damages, or at the very worst, award a few thousand dollars.
i Note to the instructor: I was unsure as to how exactly to cite things from the McElwain decision. It wasnt clear to me if the
judge was quoting the cases cited directly in his opinion and I should therefore quote him, and by extension, the opinions he was
citing. For lack of further knowledge, Ive quoted the McElwain opinion directly where there is explanation or mention of some
point of law that is referenced. The purpose of this note is simply to let you know that the direct quotations from the McElwain
opinions may be improper, but are not intended to be dishonest in any way.