City of Neodesha v. BP Corp. North America, Inc.

No. 109,111
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF NEODESHA, KANSAS,
Individually and as Representative of Those Persons and Entities Similarly Situated,
Appellants,
v.
BP CORPORATION NORTH AMERICA,
INCORPORATED, f/k/a BP
AMOCO CORPORATION, et al.,
Appellees.
SYLLABUS BY THE COURT
1.
K.S.A. 2012 Supp. 60-250(a) allows a trial court to enter judgment as a matter of
law against a party when the court finds there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party on that issue. When ruling on such motions the
trial court must resolve all facts and inferences reasonably drawn from the facts in favor
of the party against whom the ruling is sought. If reasonable minds could reach different
verdicts based on the evidence, the motion must be denied. An appellate court must
undertake a similar analysis when reviewing the ruling on such a motion.
2.
Under Supreme Court Rule 181 (2013 Kan. Ct. R. Annot. 277), a juror may be
called to testify at a hearing on a posttrial motion only if the court—after a hearing to
determine whether all or any jurors should be called—grants a motion to call the juror.
3.
K.S.A. 2012 Supp. 60-259(a)(1)(C) grants the trial court authority to order a new
trial when the jury verdict was given under the influence of passion or prejudice.
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4.
An appellate court reviews the trial court's decision on a motion for a new trial for
an abuse of discretion.
5.
If jury misconduct causes a fundamental failure of the trial process that is
substantially prejudicial to the complaining party, the trial court may order a new trial.
6.
An appellate court will use a two-step process in determining whether a
challenged jury instruction is clearly erroneous. First, the court must determine whether
there was any error at all by considering whether the subject instruction was legally and
factually appropriate, employing an unlimited review of the entire record. If the court
finds error, it must assess whether it is firmly convinced that the jury would have reached
a different verdict had the instruction error not occurred. The party claiming error in the
instruction has the burden to prove the degree of prejudice necessary for reversal.
7.
The trial court is required to properly instruct the jury on a party's theory of the
case. Errors regarding jury instructions will not require reversal unless they result in
prejudice to the appealing party. Instructions in any particular case are to be considered
together and read as a whole, and where they fairly instruct the jury on the law governing
the case, error in an isolated instruction may be disregarded as harmless. If the
instructions are substantially correct and the jury could not reasonably have been misled
by them, the instructions will be approved on appeal.
8.
It is the appellant's burden to designate the record to establish any claim of error.
Without a record, this court will not presume error.
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9.
When the trial court denies a motion in limine and the subject evidence is
introduced later at trial, the moving party must object at trial to the admission of the
evidence in order to preserve the issue for appeal.
10.
K.S.A. 60-404 generally precludes an appellate court from reviewing an
evidentiary challenge unless there appears of record an objection to the evidence, timely
interposed, and so stated as to make clear the specific ground of objection.
11.
Under K.S.A. 2012 Supp. 60-226(b)(4), documents prepared in anticipation of
litigation or for trial by or for a party are not discoverable by another party in the absence
of some specific showing of need. The work-product rule is not an absolute privilege but
rather a limitation on discovery.
12.
K.S.A. 60-456(a) states that if a witness is not testifying as an expert, his or her
testimony in the form of opinions or inferences is limited to such opinions or inferences
the judge finds (a) may be rationally based on the perception of the witness and (b) are
helpful to a clear understanding of his or her testimony. This statute permits opinion
testimony by a nonexpert witness if the opinion is incidental to the witness' actual
knowledge of the facts and circumstances of the case.
13.
The qualification of an expert witness and the admission of that witness' testimony
are matters within the broad discretion of the trial court.
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14.
Failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority or in the face of contrary authority is akin to failing to brief
the issue.
15.
Sanctions should be designed to accomplish the objectives of discovery rather than
for the purpose of punishment. The dismissal or granting of a default judgment is a
drastic remedy to impose as a discovery sanction and should be used as a last resort when
other lesser sanctions are clearly insufficient to accomplish the desired outcome.
Appeal from Wilson District Court; DANIEL D. CREITZ, judge. Opinion filed August 22, 2014.
Affirmed.
David W. Edgar, of Edgar Law Firm LLC, of Denver, Colorado, John M. Edgar, John F. Edgar,
and Matthew J. Limoli, of Kansas City, Missouri, and James P. Frickleton, of Bartimus, Frickleton,
Robertson & Gorny, P.C., of Leawood, for appellants.
Richard C. Hite, Arthur S. Chalmers, and F. James Robinson, Jr., of Hite, Fanning & Honeyman,
L.L.P., of Wichita, and Richard C. Godfrey, Andrew B. Bloomer, Catherine L. Fitzpatrick, Michael Chu,
and Megan M. New, of Kirkland & Ellis, LLP, of Chicago, Illinois, for appellees.
Before HILL, P.J., ATCHESON and BRUNS, JJ.
HILL, J.: Everything in our world moves. This means the pollutants and poisons
produced by a century of oil refining rarely stay in one place, safely secured in some snug
unseen underground cell. Instead, such noxious compounds slowly migrate, leaching
from one substratum to another. No neighbor is safe from this march of toxins. These
moving subsurface fields of pollution, euphemistically called "plumes" by some, are
dangerous for these feathers are toxic.
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Fortunately, what is done by human effort can be, for the most part, undone by
human effort. Messes can be cleaned up. Pollutants, even those buried deep below the
surface, unseen but nonetheless lethal, can be diverted, contained, and reduced. When
engaged in such efforts, questions arise. Is there pollution at this site? If so, what are the
pollutants and how extensive is the danger? What can be done to protect the public?
Finally, who is going to pay for these measures?
When a group of citizens, some businesses, and two local governments sued BP
Corporation North America (BP), a company that owns a closed oil refinery in Neodesha,
Kansas, they sought answers to those questions. After a 17-week jury trial, the jury
determined that BP was not legally responsible to do more than what it was already
doing.
In an interlocutory appeal of the trial court's posttrial order granting a new trial to
the Plaintiffs on the theory of strict liability, the Kansas Supreme Court reversed, holding
the Plaintiffs were not entitled to a new trial on that theory. Upon the case's return to the
district court, the Plaintiffs moved for a new trial for many reasons. This appeal arises
from the trial court's denial of that motion.
HISTORICAL BACKGROUND
When the Supreme Court reviewed this case, the court offered a detailed history,
beginning in 1897, of the background of this growing environmental problem. We need
not repeat all of those facts here. See City of Neodesha v. BP Corporation, 295 Kan. 298,
300-02, 287 P.3d 214 (2014) (Neodesha I).
In late 2002, certain city officials began questioning BP's remediation efforts.
Several officials and citizens visited Sugar Creek, Missouri, another site where BP had
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been remediating wastes from a former refinery. It was at this time the City of Neodesha
(the City) retained the services of the Technical Outreach Services for Communities
(TOSC) group, an advisory group from Kansas State University, to review BP and
Kansas Department of Health and Environment materials and educate the City about the
issues.
In the summer of 2003, an advisory group composed of various representatives of
Neodesha industry, citizenry, and governmental entities held meetings with BP and
Department of Health and Environment officials concerning the environmental
conditions around the old refinery. The group unanimously approved BP's proposed
"Corrective Action Study" that created a detailed cleanup plan. About that same time,
Neodesha's mayor and city administrator requested that BP provide financial
"reinvestments" within the City that did not directly tie into the ongoing remediation
work. In light of the City's request, BP formed a working group in an effort to negotiate a
settlement. When subsequent negotiations failed, this lawsuit followed.
THIS LAWSUIT WAS LARGE IN SCOPE.
In March 2004, the City filed this action on behalf of itself and all other real
property owners in Neodesha. The trial court granted the Plaintiffs' motion for class
certification, defining the class as "[a]ll persons and entities who owned real property on
or after March 19, 2004, which has been exposed to or otherwise suffered economic harm
from the hazardous wastes released from the [BP] operations in and around Neodesha,
Kansas." Although the Plaintiffs' petition was amended several times, the allegations
against BP ultimately included claims of negligence, strict liability, nuisance, trespass,
violation of K.S.A. 65-6203 (a statute creating legal liability for accidental release or
discharge of materials detrimental to water or soil), unjust enrichment, fraudulent
concealment/fraud by silence, breach of fiduciary duty, and breach of contract. The
Plaintiffs also sought declaratory and injunctive relief.
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The Plaintiffs based their claims on allegations that BP and its predecessors
released petroleum, petroleum products, and hazardous substances into the soil and
groundwater from the refinery which was located within the city. The Plaintiffs also
claimed that BP had failed to adequately remediate the damages created by its
contamination.
The trial court granted summary judgment to BP on some issues. It ruled that the
Plaintiffs could not pursue an unjust enrichment claim and that the statute of repose
barred any claims regarding what had occurred when the refinery was operational.
After a 17-week trial, the jury returned a verdict in favor of BP on all counts. The
Plaintiffs alleged many trial errors and jury misconduct. They sought a new trial. The trial
court denied these motions. But, the trial court did grant the Plaintiffs' motion for
judgment as a matter of law on their strict liability claim. Our Supreme Court later
overturned this ruling in Neodesha I, 295 Kan. 298. The Court ruled: "Strict liability
claims in tort alleging water contamination require application of the abnormally
dangerous activity tests set forth in Restatement (Second) of Torts §§ 519 and 520
(1976). Language to the contrary in Koger v. Ferrin, 23 Kan. App. 2d 47, 926 P.2d 680(1996), is disapproved." After the mandate from the Supreme Court arrived at the district
court, the court entered judgment in favor of BP on the strict liability claim and affirmed
its prior denials of the Plaintiffs' other posttrial motions.
We see three categories of attack by the Plaintiffs on the trial court's judgments.
First, the court made many errors in its legal rulings. Next, the court failed to fully
investigate the Plaintiffs' claims of jury misconduct. And finally, the court abused its
discretion in many ways during and after the trial.
Naturally, after such a long trial, we must cope with a huge record on appeal and
many allegations of error. There are 203 volumes in the record on appeal, with 70
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volumes of transcripts of the jury trial and more than 1,000 exhibits. We will first
examine the various legal rulings that the Plaintiffs complain about. Next, we will review
the question of possible jury misconduct. Finally, we will look at the many discretionary
rulings made by the trial court that are the grounds for the Plaintiffs' request for a new
trial. We cannot conclude that this was a perfect trial, but we see no good reason to
conclude that the court should have granted a new trial.
THE PLAINTIFFS ARGUE THAT BP IS STRICTLY LIABLE.
Citing the "abnormally dangerous activity" standard mentioned by the Supreme
Court in Neodesha I, the Plaintiffs contend the undisputed facts establish that BP's
ongoing storage of hazardous and carcinogenic pollutants on its property is abnormally
dangerous. Therefore, the Plaintiffs claim the trial court erred in not granting their motion
for judgment as a matter of law on this theory.
Indeed, K.S.A. 2012 Supp. 60-250(a) allows a trial court to enter judgment as a
matter of law against a party when the court finds there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue. When ruling on
such motions the trial court must resolve all facts and inferences reasonably drawn from
the evidence in favor of the party against whom the ruling is sought. If reasonable minds
could reach different verdicts based on the evidence, the motion must be denied. We, as
an appellate court, must undertake a similar analysis when reviewing the ruling on such a
motion. Neodesha I, 295 Kan. at 319.
In its response, BP argues that the law-of-the-case doctrine prevents our review of
this issue. The law-of-the-case doctrine prevents relitigation of the same issues within
successive stages of the same lawsuit. Thoroughbred Assocs. v. Kansas City Royalty Co.,
297 Kan. 1193, 1212, 308 P.3d 1238 (2013). This doctrine is similar to collateral
estoppel. Collateral estoppel prevents parties from relitigating an issue a court has
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decided on the merits in another action. Estate of Belden v. Brown County, 46 Kan. App.
2d 247, 266, 261 P.3d 943 (2011). The law-of-the-case doctrine serves essentially the
same function within a single case on issues a court has considered and decided. State v.
West, 46 Kan. App. 2d 732, 735-36, 281 P.3d 529 (2011).
In order to rule on this matter, we must review some case history. Each of the
Plaintiffs' petitions and amended petitions contained a strict liability count. Essentially,
the petitions alleged that BP allowed contamination from its property to escape and that
because the treatment and storage of the contaminants were not matters of common usage
and the activity was inappropriate for the location, it was an abnormally dangerous
activity and thus BP was strictly liable. The final pretrial order contained a strict liability
claim based on BP's alleged pollution of ground water and for engaging in abnormally
dangerous activities in the storage and treatment of the refinery contamination.
Prior to trial, BP argued that the 2-year statute of limitations and the 10-year
statute of repose barred the Plaintiffs' strict liability claims. BP argued that any claims
based upon activities relating to plant operations which terminated in 1970 or for other
events prior to March 19, 2002, were legally barred. BP also argued in the alternative that
the disposal of wastes on the plant's property was not an abnormally dangerous activity as
defined by the Restatement (Second) of Torts §§ 519-520 as adopted in Kansas.
Just before trial, the trial court partially granted BP's summary judgment motion
on these issues. The court rejected BP's assertions that the statute of repose and the
statute of limitations completely barred the Plaintiffs' strict liability claims. The court
held that the statute of repose barred a portion of the Plaintiffs' claims—to the extent they
related to discontinued refinery operations. But the court ruled that it was a question for
the jury to decide whether BP was strictly liable for its management of the remediation
project and that such liability would be "'limited to the kind of harm the possibility of
which makes the activity abnormally dangerous.' [Citation omitted.]." The trial court also
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found that there were questions of fact on whether BP was estopped from asserting the 2-
year statute of limitations with respect to its remediation efforts. Finally, the court held
that a "strict liability" analysis was still applicable in cases involving contamination of
water.
Accordingly, the trial court instructed the jury on the strict liability claim. In the
general claims instruction, the court told the jury that the Plaintiffs claimed BP was
strictly liable "for [its] clean up of the refinery contamination." The court gave a special
instruction on strict liability that stated the Plaintiffs were required to prove BP's
remediation constituted an "abnormally dangerous activity" and listed the various factors
used to consider whether an activity is abnormally dangerous.
It is important at this point to review what the Supreme Court stated on this issue
in Neodesha I:
"[T]he general rule imposing strict liability in tort law for abnormally dangerous
activities stated in the Restatement (Second) of Torts § 519 provides: (a) One who carries
on an abnormally dangerous activity is subject to liability for harm to the person, land, or
chattels of another resulting from the activity, although he or she has exercised the utmost
care to prevent the harm; and (b) this strict liability is limited to the kind of harm the
possibility of which makes the activity abnormally dangerous.
"In determining whether an activity may be determined abnormally dangerous,
the Restatement (Second) of Torts § 520 sets forth the following factors: (a) existence of
a high degree of risk of some harm to the person, land, or chattels of others; (b)
likelihood that the harm that results from it will be great; (c) inability to eliminate the risk
by the exercise of reasonable care; (d) extent to which the activity is not a matter of
common usage; (e) inappropriateness of the activity to the place where it is carried on;
and (f) extent to which its value to the community is outweighed by its dangerous
attributes." 295 Kan. at 318-19.
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Of course, after hearing all of the evidence the jury returned a verdict finding BP
was not liable to the Plaintiffs under a strict liability claim or any other claim.
With all of this in mind, the Plaintiffs are precluded from asserting they are
entitled to judgment as a matter of law under an abnormally dangerous activity theory.
The Plaintiffs never sought judgment as a matter of law in the district court under the
abnormally dangerous activities standard. Both in their pre- and postverdict motions their
arguments were based solely on their perception that Kansas law created a per se liability
for contamination of groundwater. Neither motion addressed the Restatement (Second) of
Torts factors for abnormally dangerous activities. We cannot say the trial court erred in
denying a motion under K.S.A. 2012 Supp. 60-250 on a theory that the Plaintiffs never
asserted.
We must also point out that after the trial court received the mandate in Neodesha
I, the Plaintiffs did not file a new motion based upon the abnormally dangerous standard.
We can find nothing in the record that reveals the Plaintiffs filed any motion reiterating
the alternative basis for strict liability in applying the trial evidence to the Restatement
(Second) of Torts standards. It appears the Plaintiffs have improperly tried to raise this
issue for the first time on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375,
403, 266 P.3d 516 (2011).
Finally, the Supreme Court reviewed the trial evidence and found that disputed
facts existed with regard to the abnormally dangerous activity issue. As a result, the court
found the jury's verdict rejecting the strict liability theory should not be disturbed.
Neodesha I, 295 Kan. at 325. Thus, the Supreme Court's determination that the facts on
the issue were disputed is the law of the case, and that determination cannot be
challenged in this appeal. The Plaintiffs fail to cite any explicit testimony from the trial
that established, as a matter of law, that the factors relating to the abnormally dangerous
activity were proved as a matter of law.
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We see no reason to reverse on this issue.
THE TRIAL COURT DID NOT NEED TO RECALL THE ENTIRE JURY.
The Plaintiffs contend that the trial court failed to properly investigate their claims
of jury misconduct by refusing to recall the entire jury panel. The Plaintiffs also claim the
trial court abused its discretion in denying their motion for a new trial as a result of jury
misconduct.
Indeed, under Supreme Court Rule 181 (2013 Kan. Ct. R. Annot. 277) a juror may
be called to testify at a hearing on a posttrial motion only if the court—after a hearing to
determine whether all or any jurors should be called—grants a motion to call the juror.
And K.S.A. 2012 Supp. 60-259(a)(1)(C) grants the trial court authority to order a new
trial when the jury verdict was given under the influence of passion or prejudice. In fact,
jurors cannot be called for hearings on posttrial motions without an order of the court that
is entered after a motion and a Rule 181 hearing. Williams v. Lawton, 288 Kan. 768, Syl.
¶ 10, 207 P.3d 1027 (2009).
We review the trial court's decision on a motion for a new trial for an abuse of
discretion. Duncan v. West Wichita Family Physicians, 43 Kan. App. 2d 111, 114, 221
P.3d 630 (2010), rev. denied 291 Kan. 910 (2011). A judicial act constitutes an abuse of
discretion if the action is: (1) arbitrary, fanciful, or unreasonable—i.e., if no reasonable
person would take the view adopted by the trial court; (2) based on an error of law—i.e.,
if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of
fact—i.e., if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292
Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
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Recalling jurors after their service has ended is not common and should be
undertaken only for just cause. Williams, 288 Kan. at 788.
In 1915, the United States Supreme Court explained the important policy
considerations that made shielding jury deliberations from public scrutiny a necessity.
"[L]et it once be established that verdicts solemnly made and publicly returned into court
can be attacked and set aside on the testimony of those who took part in their publication
and all verdicts could be, and many would be, followed by an inquiry in the hope of
discovering something which might invalidate the finding. Jurors would be harassed and
beset by the defeated party in an effort to secure from them evidence of facts which might
establish misconduct sufficient to set aside a verdict. If evidence thus secured could be
thus used, the result would be to make what was intended to be a private deliberation, the
constant subject of public investigation; to the destruction of all frankness and freedom of
discussion and conference." McDonald v. Pless, 238 U.S. 264, 267-68, 35 S. Ct. 783, 59
L. Ed. 1300 (1915).
Later, the Supreme Court described the well-established common-law rule.
"By the beginning of this century, if not earlier, the near-universal and firmly
established common-law rule in the United State flatly prohibited the admission of juror
testimony to impeach a jury verdict. . . .
"Exceptions to the common-law rule were recognized only in situations in which
an 'extraneous influence' [citation omitted] was alleged to have affected the jury." Tanner
v. United States, 483 U.S. 107, 117, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987).
If jury misconduct causes a fundamental failure of the trial process that is
substantially prejudicial to the complaining party, the trial court abuses its discretion if it
fails to order a new trial. See Bell v. State, 46 Kan. App. 2d 488, 490-91, 263 P.3d 840(2011), rev. denied 296 Kan. 1129 (2012).
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When ruling on motions such as this, a court must follow two statutes, K.S.A. 60-
441 and K.S.A. 60-444. The first, K.S.A. 60-441, bars the receipt of evidence that shows
the effect of any statement, conduct, event, or condition upon the mind of a juror as an
influence on his or her verdict or as it concerns the mental processes by which the verdict
was determined. In other words jurors cannot be compelled to relate their thought
processes. But the second, K.S.A. 60-444, permits a juror to testify about the conditions
or occurrences either within or outside of the jury room having a material bearing on the
validity of the verdict. This would permit evidence of any "extraneous influence," as
mentioned by the United States Supreme Court, to come to light. See Tanner, 483 U.S. at
117.
HOW THIS ISSUE AROSE
These concerns came to the trial court's attention when the Neodesha city
administrator filed an affidavit that stated he had been approached shortly after the trial
by Juror No. 11 who disagreed with the verdict and asserted that some of the jurors
denied others the ability to review the exhibits during deliberations. Another
representative of the Plaintiffs met Juror No. 2 at a local store, and Juror No. 2 told the
representative that the jury did not discuss or review the evidence during deliberations
and the votes on one of the claims changed over the holiday break from a verdict for the
Plaintiffs to a defense verdict.
Over BP's objections, the trial judge interviewed Juror No. 11 in the presence of a
court reporter. Juror No. 11 mostly confirmed the administrator's affidavit and told the
judge that she believed four jurors bullied others by wanting to constantly vote on the
claims, "shoot[ing] down" anyone who expressed a different viewpoint, and rushing
jurors who wished to look at exhibits during the discussions. Juror No. 11 told the judge
she simply told them to shut up and leave her alone while she was looking at the exhibits.
Juror No. 11 stated she was bolder than others and did what she thought was right. Juror
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No. 11 also reported that on the first 2 days of deliberations they had gone through the
verdict form down to the nuisance claim; at that time, a poll of the jurors resulted in a
majority voting to award the Plaintiffs damages on that claim. When the jurors returned
from the holiday break several days later, one or more jurors expressed uncertainty over
that claim, and they decided to go back over the question. The vote then changed to a 10-
2 verdict for BP. Still, Juror No. 11 indicated that the verdict affirmed at the end of the
trial was correct and that 10 or more persons voted in favor of BP on every claim.
After all of this came to light, the trial judge conducted similar interviews with
Jurors Nos. 1, 2, and 7. All three of those jurors told the judge they remembered being
polled after the verdict was announced and agreed that 10 or more jurors agreed on the
verdicts. Although not every issue was unanimous, they still affirmed during the
interviews that the verdict read was a correct reflection of their votes.
These three jurors all agreed that every juror had the opportunity to look at the
exhibits, although other jurors did not want them to take too long and stall the process.
The three jurors agreed that several jurors had agreed in favor of the Plaintiffs on the
nuisance or trespass issue, but some of the jurors' views changed after the holiday break.
After the break, the vote was 10 or more again voting for a defense verdict on that claim.
All three agreed the jurors discussed the evidence and any juror who wanted to say
something was allowed to do so. Further, the jury panel discussed the instructions and the
verdict form during this process, even though they did not always agree. No one in the
jury room used abusive language or personally attacked another juror. None of these
jurors had any reason to believe other jurors ignored the judge's admonishment not to
discuss the issues over the break. No matters outside the evidence were discussed.
Finally, none of these jurors felt coerced, although Juror No. 1 asserted that
whatever viewpoint she raised, the majority always seemed to reject it and she believed
other jurors were very strong in their viewpoint and could have overpowered weaker
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jurors. Some of the jurors made negative remarks about the Plaintiffs' counsel, seeing him
as a bully.
The trial court provided copies of the transcripts from the juror interviews to
counsel for both sides, and counsel had the opportunity to review those transcripts before
the scheduled hearings on the Plaintiffs' posttrial motions when this issue was argued.
On the day before the hearing on the Plaintiffs' posttrial motion, the Plaintiffs filed
a motion seeking to withdraw their motion to recall the entire jury. The Plaintiffs gave no
reason why they were withdrawing the motion. At the hearing, the Plaintiffs' counsel was
asked if this was a waiver of the entire issue. In response he stated:
"Your Honor, the pleading is as the pleading states, we are withdrawing our 181
motion. We recognize the Court's admonition in which the Court indicated it would not
grant a motion on—based on the affidavits and things that had gone before without a
pursuit of a 181 motion. So we were acknowledging that section II-E of our amended
new trial motion goes to that issue. Just acknowledging for the benefit of the Court and
benefit of the other side that we therefore would not burden the Court with any argument
on that issue, the Court having already indicated its intent. But that is the extent of what
we intended to do by that sentence."
Accordingly, the Plaintiffs did not argue jury misconduct during that hearing.
After the hearing, even though the Plaintiffs had withdrawn their motion to recall the
jury, the trial court addressed that issue in its order. The court denied any relief, finding
the Plaintiffs did not carry their burden of proving just cause to recall the entire jury in
light of the jurors' affidavits presented by both parties. Although the court noted that it
did not consider the transcripts of the ex parte interviews with the jurors, the judge
indicated he would have reached the same conclusion even if he had considered the
interviews. The court also separately addressed and rejected the concerns of juror
misconduct in connection with Juror No. 9.
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To us, the Plaintiffs contend the trial court erred in failing to carry out its duty to
fairly investigate allegations of jury misconduct. They base their contention on three
points: (1) Juror No. 9 and perhaps others prejudged the case; (2) the jury suddenly
changed directions after the holiday recess; and (3) dissenting jurors were bullied into
submission to a defense verdict.
Our review of the record does not support any of the Plaintiffs' assertions. We note
that there are no allegations of any outside influence on this jury. All of these complaints
are about how this jury conducted its deliberations and not some outside interference or
extraneous matter that would influence their verdict.
The trial court did conduct ex parte interviews with four of the jurors and later
accepted juror affidavits from both parties. Significantly, the Plaintiffs withdrew their
motion to recall the jury on the eve of the arguments on posttrial motions. We can only
view this as a deliberate trial strategy chosen by counsel after consulting with the
Plaintiffs. Even though the court addressed the Rule 181 motion in its ruling, the
Plaintiffs cannot complain the trial court erred in failing to recall the jury when they
withdrew that request. A party may not invite error and then complain of that error on
appeal. Thoroughbred Assocs., 297 Kan. at 1204. For this reason, we reject this point on
appeal.
Besides, the trial court here found that there was simply not enough evidence to
conclude the Defendants' verdict was impeached by these allegations. A panel of this
court noted that, especially in long trials, jurors will continue to act as human beings:
"'[T]he jury being what it is, jurors will act like human beings in the jury room, and will
indulge in bluster and hyperbole and animated irrelevancies. Not only does the law
presume a juror respects the obligation of his oath and votes his convictions, but
generally he in fact does so; and due allowance must be made for some exuberance in
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jury-room discussion or the court must keep on granting new trials in important cases
until a perfectly spiritless jury can be secured.' [Citation omitted.]" Butler v. HCA Health
Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 412, 6 P.3d 871, rev. denied 268 Kan. 885(1999).
Further on this point, "[a]n attempt to persuade a person to vote differently than he
or she feels may seem somewhat coercive, but an attempt to convince a minority member
of the jury of the error of a position, while perhaps uncomfortable for the minority
member, does not constitute juror misconduct." State v. Jones, 29 Kan. App. 2d 936, 940,
34 P.3d 82 (2001), rev. denied 273 Kan. 1038 (2002).
Based on this record and the trial judge's firsthand experience during the trial and
its aftermath, there is no clear evidence for us to conclude that there was any misconduct
by the jurors that was prejudicial to the Plaintiffs. We see no reason to order a new trial
based on jury misconduct. We see no fundamental failure in the trial based on jury
misconduct. There is no substantial prejudice here to the Plaintiffs' right to a fair trial.
WE TURN TO CLAIMS OF JURY INSTRUCTION ERRORS.
The Plaintiffs pursued eight different legal theories on behalf of a broad
assortment of subclasses in this trial. The Supreme Court in Neodesha I commented that
the jury instructions in this case were somewhat inconsistent and confusing. We agree.
Overall, most of the objections concerning the instructions that the Plaintiffs now raise in
their brief were not lodged at trial. This means, ultimately, we must review this issue
under a clearly erroneous standard. After careful consideration we are not persuaded that
a new trial is called for based upon errors in the instructions.
Caselaw instructs that for jury instruction issues, the standards of review on appeal
differ as our analysis progresses:
18
 First, the appellate court should consider the reviewability of the issue from
both jurisdiction and preservation viewpoints, exercising an unlimited
standard of review;
 next, the court should use an unlimited review to determine whether the
instruction was legally appropriate;
 then, the court should determine whether there was sufficient evidence,
viewed in the light most favorable to the requesting party, that would have
supported the instruction; and
 finally, if the district court erred, the appellate court must determine
whether the error was harmless, utilizing the test set forth in Ward, 292
Kan. at 550; Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223(2013).
Importantly, a party must object to the trial court's giving of or failing to give a
jury instruction before the jury retires. K.S.A. 2012 Supp. 60-251(c). The party must state
clearly what matter is objectionable and give the legal grounds for the objection.
Otherwise, a court may only consider an error in the giving or the failure to give the
instruction if the instruction is clearly erroneous and the error affects substantial rights.
K.S.A. 2012 Supp. 60-251(d)(2).
An appellate court will use a two-step process in determining whether the
challenged jury instruction is clearly erroneous. First, the court must determine whether
there was any error at all by considering whether the subject instruction was legally and
factually appropriate, employing an unlimited review of the entire record. If the court
finds error, it must assess whether it is firmly convinced that the jury would have reached
a different verdict had the instruction error not occurred. The party claiming error in the
instruction has the burden to prove the degree of prejudice necessary for reversal. See
State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Therefore, because the
19
Plaintiffs allege instruction error, it is their burden to prove the degree of prejudice
necessary for reversal in this case. They have failed to do so.
We will now review the general claims instruction that the Plaintiffs complain
about and then move on to the instructions covering negligence, strict liability, public and
private nuisance, trespass, and claims made under K.S.A. 65-6203.
Instruction No. 4—the claims instruction
Primarily, the Plaintiffs complain that Instruction No. 4, the general claims
instruction, did not use the exact language the Plaintiffs used in their claims statement
found in the final pretrial order. The Plaintiffs renewed this objection concerning other
theories of recovery as well.
Instruction No. 4 stated in part: "Defendants were negligent by failing to use the
necessary care in the clean up of the refinery contamination . . . ." In their brief, the
Plaintiffs argue that because the instruction did not contain the word "investigate" as the
pretrial order did, the court failed to fully describe their claim to the jury, and that is
reversible error.
Although the Plaintiffs proposed a more detailed claims instruction during the
instruction conference, their counsel only objected to the trial court's use of the term
"remediation" rather than "clean up" in Instruction No. 4. In response, at the Plaintiffs'
request, the court changed the word "remediation" to "clean up" throughout Instruction
No. 4, including the portion of the contention instruction relating to negligence. The
Plaintiffs made no request to the court to include the phrase "investigate and clean up."
In fact, the Plaintiffs specifically objected to BP's arguments that "clean up" was
too vague, inconsistent with the pretrial order, and raised concerns relating to the trial
20
court's ruling on the statute of repose. During this argument, the Plaintiffs emphasized
that the heart of the case was not remediation, but BP's failure to clean up. Again, counsel
did not mention "investigate." In short, Instruction No. 4 complied with all requests the
Plaintiffs made in the instruction conference. We see no legal significance to the
Plaintiffs' complaint about failing to include the term investigate in the general claims
instruction.
We will deal with the additional complaints about Instruction No. 4 as we proceed
with the specific instructions dealing with the specific claims.
Instruction No. 8—negligence
In this instruction, the trial court began: "In performing professional services, the
party undertaking to remediate has a duty to use that degree of care and skill which would
be used by a reasonably competent professional providing similar services in the same
community and acting in similar circumstances." Clearly, the court used the phrase
"undertaking to remediate" instead of the Plaintiffs' proposed instruction that used
"undertaking to investigate and remediate."
During the instruction conference, the Plaintiffs objected to the use of the word
"remediate" but made no mention of the word "investigate." In addressing the use of the
term "remediate," the trial court acknowledged that the Plaintiffs could argue about the
inadequacy of the remediation efforts and that was proper argument.
With this record, we hold that the Plaintiffs failed to adequately object to these
instructions. We therefore must review them using a clearly erroneous standard of
review, later.
21
Instruction No. 9—strict liability
The Plaintiffs make a similar complaint that the pertinent section of Instruction
No. 4 failed to adequately define their strict liability claim because it did not use the
language used in the final pretrial order. Instruction No. 4 advised the jury: "The Plaintiff
Class claims that it sustained damages stemming from Defendants' failure to clean up the
refinery contamination in Neodesha. Specifically, Plaintiff Class claims: . . . (2)
Defendants are strictly liable to the Plaintiff Class for their clean up of the refinery
contamination."
The Plaintiffs' proposed instruction read: "Defendants are strictly liable for having
polluted groundwater as a result of their storage and treatment of the BP contamination."
(Emphasis added.)
Again, during the instruction conference, the Plaintiffs' counsel stated:
"Defendants are strictly liable to plaintiffs' class for their failure to clean up the refinery
contamination." There was no mention of storage at this point. The judge drafted the
instruction as requested. It seems to us, therefore, that the doctrine of invited error bars
the Plaintiffs from challenging this aspect of Instruction No. 4. See Fleetwood Folding
Trailers v. Coleman Co., 38 Kan. App. 2d 30, 47, 161 P.3d 786 (2007).
We move on to the subject instruction, Instruction No. 9. In their brief, the
Plaintiffs argue that BP was strictly liable for choosing not to look for additional
contamination or address the contamination and, therefore, Instruction No. 9 was also
erroneous. That instruction stated, in part:
"A person who engages in an abnormally dangerous activity is strictly liable for
harm to the property of another resulting from the activity, although that person exercised
the utmost care to prevent the harm. To establish liability based upon strict liability, the
22
Plaintiff Class must prove Defendants' remediation constituted an 'abnormally dangerous
activity' as it relates to the Class."
When discussing Instruction No. 9 during the instruction conference, the Plaintiffs
only objected to the use of the term "remediation" rather than "clean-up." The Plaintiffs
expressed concern that the term "remediate" did not include BP's failure to find the rest of
the pollution. The trial court overruled this objection. The Plaintiffs agreed to a change on
the second page of the instruction when the court added language stating that "the
Plaintiff Class must prove that the remediation created a risk that was so unusual . . . ."
(Emphasis added.)
Finally, the Plaintiffs complain that the instruction was confusing because it
contained both the factors from the Restatement (Second) of Torts as well as a strict
liability standard. But we must point out that the Plaintiffs requested language stating that
"Kansas law provides that this strict liability applies to conduct involving contamination
of water resources because of the importance of clean, safe water." BP objected to the
inclusion of the strict liability language, but the Plaintiffs did not. That language was
taken from their proposed instructions. While they now claim it was confusing to place it
in the instruction containing the Restatement's abnormally dangerous activities language,
they made no such objection during the instruction conference. Thus, while the Supreme
Court ultimately rejected this language from Koger concerning strict liability in
Neodesha I, 295 Kan. 298, Syl. ¶ 8, 287 P.2d 214 (2012), it was included at the Plaintiffs'
specific request and, therefore, the invited error doctrine prohibits the Plaintiffs from
complaining about this portion of the instruction. See Fleetwood Folding Trailers, 38
Kan. App. 2d at 47.
These complaints boil down to this: The Plaintiffs' overall objection to Instruction
No. 9 must be limited to whether the trial court's failure to include the term "investigate"
23
was reversible error. The Plaintiffs fail to explain how a "failure to investigate"
constitutes an abnormally dangerous activity for which BP would be held strictly liable.
The statement given later in the same instruction—that the Plaintiffs must prove
the remediation created a risk that was so unusual as to justify the imposition of strict
liability for the harm that resulted from it—would be sufficient to address this concern.
We hold this was not reversible error.
Instructions Nos. 10 and 11—nuisance
The Plaintiffs pursued public and private nuisance claims against BP. Instruction
No. 10 dealt with private nuisance while No. 11 covered public nuisance.
Once again, they challenge Instruction No. 4's failure to mirror the exact language
of the pretrial order. We are puzzled by this argument because the language used in
Instruction No. 4 in describing this claim stated: "Defendants' spread of the
contamination constitutes a nuisance." According to our reading of the record, the trial
court changed the instruction at the Plaintiffs' request. Since the instruction mirrored the
language requested during the instruction conference, any error in this language is
invited. See Fleetwood Folding Trailers, 38 Kan. App. 2d at 47.
Moving on, we note that the Plaintiffs object to the language of Instruction No. 10
because the trial court used the term "remediation." The Instruction stated: " To establish
liability based upon private nuisance, the Plaintiff Class must establish that Defendants'
remediation substantially and unreasonably interfered with the use and enjoyment of the
property of each and every member of the Plaintiff Class . . . ."
This language differed from the language in Instruction No. 4. The Plaintiffs argue
that using the term "remediation," prevented the jury from considering the remediation
24
BP failed to undertake. Again, the Plaintiffs did not object to Instruction No. 10 other
than seeking and receiving the clarification in the first paragraph that it was a "private"
nuisance. In fact, other than arguing about clarification of the time qualification on the
operation of the former refinery on the second page of the proposed instruction, the
Plaintiffs had no other objections.
The instruction also advised the jury that the Plaintiffs must prove that
"Defendants acted negligently in creating or maintaining the nuisance." A failure to
remediate when there is a duty to remediate is negligence and is covered by this part of
the instruction. We do not see this as a fatal flaw in Instruction No. 10.
Moving on, the Plaintiffs agree that Instruction No. 11, dealing with public
nuisance, sets the correct legal standard. But, on appeal, they claim it is tainted by the
error made in the claims instruction, Instruction No 4. The Plaintiffs did not object to
Instruction No. 11 except when the trial court added language that the nuisance could not
be based on the operation of the former refinery. Because the Plaintiffs' only objection to
Instruction No. 4 resulted in the change they requested, we do not see how they can avoid
the invited error doctrine on this instruction.
Instruction No. 12—trespass
The Plaintiffs' objections to the trespass instruction are consistent with their earlier
complaints. Again, the Plaintiffs complain that Instruction No. 4 did not mirror the exact
language set forth in the pretrial order. Here, however, the Plaintiffs assert that the trial
court inadvertently directed a verdict for BP.
Once again, the Plaintiffs did not object to the trespass section of Instruction No. 4
during the instruction conference. In addition, the instruction stated that the class claimed
"it sustained damages stemming from Defendants' failure to clean up the refinery
25
contamination in Neodesha. Specifically, the Plaintiff Class claims . . . (4) Defendants
trespassed onto the Plaintiff Class' property." With no objection made, we will only
review for clear error.
Instruction No. 12 told the jury: "A person who causes foreign matter to intrude
upon the land of another is liable for trespass when that person acts knowing that such
acts will, to a substantial certainty, result in foreign matter entering the land of another."
At one point in their brief, the Plaintiffs argue that this instruction could be
confusing to the jury because employees from BP and its contractors frequently visited
these affected properties. We are not persuaded that a rational juror would consider a
human being as "foreign matter."
Additionally, the Plaintiffs did not object to Instruction No. 12 except for the time
limitation referring to "operation of the former refinery." Therefore, on this point, based
on the lack of contemporaneous objection, any error in the instruction must rise to the
level of clear error before it can be reversible. We will address clear error later.
Instruction No. 13—K.S.A. 65-6203 claims
After repeating their challenge to Instruction No. 4's description of their claim as
well as challenging Instruction No. 13, the Plaintiffs argue that the instructions, as given,
effectively directed a verdict for BP on this claim. The statute in question, K.S.A. 65-
6203, is a public health law making anyone who accidentally releases or discharges
materials detrimental to the quality of the water or soil in this state responsible to the
owner of the affected property for compensatory damages.
The pertinent portion of Instruction No. 4 stated: "Defendants' clean up violated
K.S.A. 65-6203 by causing the release and discharge of the refinery contamination onto
26
the Plaintiffs' property." The trial court rewrote that section of Instruction No. 4 based on
the Plaintiffs' requests. The Plaintiffs disputed the use of the term "clean-up" and
requested it be changed to "spread of contamination," but the court found that to be
nonsensical. The court did agree to change the instruction to "Defendants' failure to clean
up violated 65-6203." Evidently, that change did not make it into the final draft, which
still read that BP's cleanup violated the statute.
Moving on, the Plaintiffs make two challenges to Instruction No. 13. First, the
Plaintiffs dispute the use of the term "remediation" in the introductory paragraph. That
section states: "To establish liability under K.S.A. 65-6203 relating to discharge of
materials from the remediation, the Plaintiff Class must prove . . . ."
The Plaintiffs also object to subparagraph (4) that states the Plaintiffs must show
that any release occurred without contribution to the contamination by the owner or
owner-permitted occupant. The Plaintiffs did not object to this portion of the instruction
during the instruction conference. The Plaintiffs now argue that this subparagraph of the
instruction introduces a defense that BP never raised. We do not agree. In the pretrial
order, BP identified as a factual issue "[w]hat contamination is attributable to
Defendants." There was oft-repeated evidence during the trial, even from the Plaintiffs'
experts, that there were plumes of contaminants from other sources, including businesses
in the industrial park and underground storage tanks at various fueling locations
(including the City's fire station), that had to be accounted for.
We do not see this to be reversible error.
Overall impact of Instruction No. 4
From our review of the record, we find that the only instruction objection made
and ultimately overruled by the trial court was the Plaintiffs' request that the reference in
27
Instruction No. 4 to the K.S.A. 65-6203 claim should read: "Defendants' failure to clean
up violated 65-6203. . . ." The court originally agreed to this but failed to include the
revision in the instruction read to the jury. The next morning, the court found that the
unedited version of that part of Instruction No. 4—"Defendants' clean up violated K.S.A.
65-6203 by causing the release and discharge of the refinery contamination . . . ."—was
correct. This requested language was legally appropriate in explaining the Plaintiffs'
claim against BP, and there was sufficient evidence to present the K.S.A. 65-6203 claim
before the jury. So we see no error in this point.
We are mindful that instructions in any particular action are to be considered
together, read as a whole, and where they fairly instruct the jury on the law governing the
case, error in an isolated instruction may be disregarded as harmless. If the instructions
are substantially correct and the jury could not reasonably have been misled by them, the
instructions will be approved on appeal. Wood v. Groh, 269 Kan. 420, 423-24, 7 P.3d
1163 (2000).
Even though subparagraph (5) of Instruction No. 4 lacks the requested language of
"failure to clean up," the introductory paragraph to the Plaintiffs' claims section
specifically states that the Plaintiffs claimed damages "stemming from Defendants'
failure to clean up the refinery contamination in Neodesha." Similarly, Instruction No. 13
correctly states the law under K.S.A. 65-6203 that there was an accidental release of
materials detrimental to soil or water, that BP was responsible, and that the Plaintiffs
owned property where the release or discharge occurred. In addition, the court
specifically added the italicized language in Instruction No. 23, the damage instruction,
which stated: "You may only consider awarding damages that arise from Defendants'
remediation or alleged failure to remediate. You may not award the Plaintiff Class
damages from any activity of Defendants related to the operation of the Refinery."
(Emphasis added.)
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We see no clear error.
The Plaintiffs did not object to many of these instructions. The trial court is
required to properly instruct the jury on a party's theory of the case. Errors regarding jury
instructions will not require reversal unless they result in prejudice to the appealing party.
Instructions in any particular case are to be considered together and read as a whole, and
where they fairly instruct the jury on the law governing the case, error in an isolated
instruction may be disregarded as harmless. If the instructions are substantially correct
and the jury could not reasonably have been misled by them, the instructions will be
approved on appeal. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60,
81, 274 P.3d 609 (2012).
With all of that in mind, and based upon the instructions read as a whole, it
appears that even though the instructions were complex and lengthy, they advised the
jury of the nature of the Plaintiffs' claims and adequately and correctly explained the
applicable legal principles for the jury to apply to the evidence. Even though these were
difficult instructions to read and understand, the Plaintiffs have not persuaded us that
there was clear error in reading these instructions as a whole that would cause us to
reverse and order a new trial. We cannot conclude that these instructions misled this jury.
Nor are we firmly convinced that the jury would have returned a different verdict had the
instructions not been given. See Smyser, 297 Kan. at 204.
We will now review a series of pretrial and trial discretionary rulings that the
Plaintiffs contend are erroneous.
RULING THAT A LAWYER'S MEMORANDUM WAS PRIVILEGED
During discovery, a document was inadvertently produced that the parties now
refer to as "The Book of Common Prayer" for some reason that escapes us. This
29
document does not appear in the record on appeal. But, based on the recorded attorneys'
discussions, it is clear that the document was a memo issued on May 5, 2003, and written
by Evan Westerfield. Westerfield was an outside counsel for BP. The document was sent
to several BP and to RETEC Group employees involved in the Neodesha project. RETEC
Group, Inc. (RETEC) was BP's remediation contractor on this project. Evidently, this
document was created after it appeared that the City was considering litigation. It
included a 12-page summary of prior positions and statements made by BP regarding
issues affecting its environmental remediation efforts in Neodesha. The summaries were
accompanied by requests from Westerfield for additional information from the
employees.
In Westerfield's affidavit, he averred the document was drafted in order to have a
consolidated document for purposes of "issues to be addressed by the community
relations team" and "legal advice and [] impressions concerning which of these issues
would be the focus of the pending litigation." This was done so that additional
investigation could be undertaken.
The trial court entered a detailed order concerning this document. It found the
exhibit was protected by both the attorney-client and work-product privilege. The
Plaintiffs were ordered to deliver all copies of the document in their possession to the
court to be placed under seal. BP was ordered to produce to the Plaintiffs copies of the
document with redactions of the attorney's comments, his mental impressions, and his
work product. The court then ruled that the Plaintiffs could question witnesses about
factual information in the document, but they could not inquire about the content of any
conversations with counsel concerning the document.
The Plaintiffs' failure to attach a copy of the document that was proffered and
made part of the record denies this court an opportunity to review a challenge to its
exclusion from use at the trial. See K.S.A. 60-405; Manhattan Ice, 294 Kan. at 74. As the
30
blind men in the parable could not adequately describe an elephant, we cannot judge
whether the trial court erred in ordering the document returned to BP. Nor can we decide
if the redacted copy was inadequate for discovery. It is the Plaintiffs' burden, as appellant,
to designate the record to establish any claim of error, and without such record, this court
will not presume error. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
644-45, 294 P.3d 287 (2013).
But this issue does not end with one document. The Plaintiffs filed a motion
seeking disclosure of all documents which BP claimed were attorney-client
communications. They alleged that the crime-fraud exception of K.S.A. 60-426(b)(1)
applied. Obviously, application of that rule would abrogate the privilege against
disclosure.
This motion was accompanied by three notebooks of exhibits that included
numerous press releases and nonprivileged documents, as well as BP's privilege log dated
March 2005 and supplemental privilege log dated December 2006. The log lists over
1,100 documents from 1933 to 2003 for which BP was claiming attorney-client and/or
work-product privilege. The Plaintiffs have not identified a single document that they
believed substantiated their allegation that the crime-fraud exception applied.
In response to all of this, the trial court gave a detailed ruling in May 2007, finding
that the Plaintiffs had failed to identify any specific misrepresentation to support their
claim that the crime-fraud exception applied.
The Plaintiffs renewed this motion after discovery closed. Once again, after
reviewing all of the evidence, the trial court concluded that although the Plaintiffs made a
prima facie case of fraud, they failed to establish a connection between the allegedly
fraudulent acts and the attorney-client communications. The court denied that motion. In
31
turn, the Plaintiffs' posttrial motion for a new trial on the same grounds was also denied
for the same reasons.
It appears that the Plaintiffs' theory was that BP was deliberately or recklessly
misrepresenting the nature and extent of the contamination from the refinery through a
long-term public relations campaign in which counsel participated in order to avoid or
delay a lawsuit and to avoid cleaning up the contamination.
Even though the Plaintiffs in their brief have failed to summarize the types of
documents included in BP's privilege log, we have done so:
 Documents regarding the shutdown of the refinery, cleanup issues
immediately upon closure, and the potential transfer or possible leases
relating to the refinery property, all dated shortly before or after 1970.
 Documents between other attorneys and Amoco/BP during the 1980s and
1990s about remediation.
 Documents from in-house counsel, Janice McLain, to agents regarding
semiannual groundwater monitoring and other remedial measures
beginning in 1999, deed restrictions, other activities, and presuit settlement
negotiations.
 Documents involving attorney Westerfield, including memos dating from
April 2000 to September 2003 discussing the quitclaim deed to the City;
access agreements and water wells; Agency for Toxic Substances and
Disease Registry reports and meetings; responses to letters to the editor;
deed restrictions for refinery property; easement agreements; zoning issues;
establishing and operating a property protection program; indoor testing
consent agreement; creation of an advisory board; a summary of Kansas
regulations and proposals for amendments to regulations; remediation
activities; contamination issues at New Beginnings; groundwater well
32
surveys, city sewer issues; proposed water well ordinance; potential
Neodesha litigation; research of the lawfirm regarding pursuing potential
litigation; prelitigation negotiations with the City; post-lawsuit issues; and
invoices for services rendered.
 Additional Westerfield documents relating to legal advice regarding a
public meeting flyer, public meeting powerpoint documents, discussions of
NEAT meeting, community update letter, Q & A documents, draft press
releases, community relations schedule, advisory board retreat, and public
affairs plans.
 Documents to other outside counsel during settlement negotiations and
actual litigation.
We also note that the Plaintiffs did not ask the trial court to conduct an in-camera
inspection of BP's documents. The Plaintiffs failed to identify for the trial court—or this
court—any specific document or group of documents to support their claims. A trial court
may conduct an in-camera inspection of alleged confidential communications to
determine whether the attorney-client privilege applies. Freebird, Inc. v. Cimarex Energy
Co., 46 Kan. App. 2d 631, 638, 264 P.3d 500 (2011). Importantly, the Plaintiffs have not
shown that the trial judge's decision that they failed to establish a connection between the
multitude of privileged documents and the alleged misrepresentations made by BP was
improper. Based on all of this, we do not find that the trial court's ruling upon this issue
was an abuse of discretion. This was not a good reason to order a new trial in this case.
WE REVIEW THE CLAIMS OF TRIAL ERRORS.
The Plaintiffs claim 16 trial errors. They argue that each error is sufficient reason
to grant a new trial. But, taken all together, the Plaintiffs allege these errors show that
they did not receive a fair trial. Because of the large number of claimed errors, we have
grouped the issues into four general categories. We begin with pretrial matters and then
33
move to the trial court's assorted evidentiary rulings. Following that, we examine the
Plaintiffs' complaints about how the court conducted the trial. At the end, we review the
claim of error concerning the verdict.
Kansas Department of Health and Environment and federal agency reports
In this issue, the Plaintiffs contend the trial court improperly admitted evidence
from the Kansas Department of Health and Environment and the Agency for Toxic
Substances and Disease Registry, an agency within the United States Department of
Health and Human Services. We refer to this group as the Agency. The Plaintiffs now
contend that the reports from these bodies were opinion evidence, lacking in foundation,
and were improperly admitted. The Plaintiffs claimed they could not cross-examine any
of the opinions contained within those reports. The Plaintiffs also claim all of this
information was impermissible hearsay. The Plaintiffs never objected to use of this
evidence at trial.
We note that prior to trial the Plaintiffs filed motions in limine seeking to exclude
the reports from both the Department of Health and the Agency. The trial court denied
the motion in limine and stated it would rule on objections to hearsay at the trial.
In their brief, the Plaintiffs cite different points during the trial where they claim
that these agency reports were improperly admitted. Our review of the record reveals
there were no objections at any point during the cited testimony or closing arguments.
When the trial court denies a motion in limine and the subject evidence is introduced later
at trial, the moving party must object at trial to the admission of the evidence in order to
preserve the issue for appeal. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130(2009).
34
Interestingly, the Plaintiffs presented to the jury the video deposition of a
Department of Health employee, Kurt Limesand. In addition, Limesand and another
Health Department geologist, Pamela Chaffee, testified personally in court. Both of the
geologists were involved in the regulatory approval of the Neodesha remediation efforts.
The record reveals that a group of citizens in the Neodesha community had asked
the Agency to evaluate the contamination. Then they asked TOSC, the group from
Kansas State University dealing with hazardous substance issues, to act as an
intermediary between the City and the Agency. The Agency released health consultation
documents for public comment in 2003. City officials reviewed all of these documents.
Agency representatives came to Neodesha several times and released health consultation
reports discussing potential lead contamination at a daycare facility in 2006.
The Plaintiffs' toxicology expert, Dr. James Dahlgren, testified that he considered
the Agency documents and the Department of Health documents while forming his
opinion regarding the contamination risks even though he disagreed with the reports'
conclusions. Dr. Dahlgren admitted he relied on the Agency's toxicological profile
regarding arsenic and air testing results while forming his opinion. He found that report
useful to the extent it summarized relevant literature and contained reference sources,
although he again questioned the reliability of some of the final reports in light of the
report of the Plaintiffs' other expert, Dr. Daniel Stephens.
Dr. Stephens, a hydrologist, relied upon and discussed the standards and reports
made by the Department of Health. Dr. Stephens also referred to the Corrective Action
Study approved by the Department. The Plaintiffs elicited some of this testimony and
then did not object when BP referred to it. The Plaintiffs did object when BP tried to
discuss the Department report involving a contamination plume from Airosol, a local
company. The trial court admitted that evidence to impeach Dr. Stephens' testimony
35
about which contaminants were attributable to BP and which to Airosol. Dr. Stephens
also agreed that the Agency reports provided information on health toxicology.
In their brief, the Plaintiffs focus only on the 2007 Agency report on updated soil
testing results. This was a follow-up report on Agency data that was previously presented
to the City. The report was sent to City officials but the City administrator and City
commissioner did not recall reviewing the report because it was delivered when the City
was in the middle of a flood. Later, the City commissioner testified he did not review the
document because it relied on BP for all of its data and he and the City administrator did
not trust it. Finally, the Plaintiffs objected to the Agency document for lack of foundation
and hearsay. We note that the Plaintiffs offered an exhibit during its redirect examination
of Dr. Dahlgren that was a copy of the 2007 Agency report, and it was admitted into
evidence.
From our view, we cannot see that these admissions were erroneous. In light of all
of the experts' consideration of these many documents in the formulation of their
opinions and the extensive dealings the City had with TOSC and the Agency for
independent testing, the reports do not appear to be improperly admitted.
In conclusion, we must point out that K.S.A. 60-404 generally precludes an
appellate court from reviewing an evidentiary challenge "'unless there appears of record
objection to the evidence timely interposed and so stated as to make clear the specific
ground of objection.'" State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012). Simply
put, the Plaintiffs did not object to this evidence, and therefore we will not review the
matter any further.
36
Admission of the "wish lists"
The Plaintiffs claim that the trial court erred when it admitted documents covering
prelawsuit settlement negotiations between the Plaintiffs and BP. The City and BP
engaged in settlement negotiations beginning in July 2003. The Plaintiffs now complain
that the court improperly compelled them to produce internal documents relating to those
settlement negotiations which were then improperly used by BP at trial. Knowledge of
the circumstances is important to understand this claim.
The facts surrounding these settlement negotiations are muddy at best. The record
does reflect that in September 2002, BP asked permission to discharge fluids through the
City's sewer system. The City agreed if BP would pay $620,000 to help upgrade the
system. When BP declined, it raised a "red flag" for City Commissioner J.D. Cox. After
that, some City officials visited Sugar Creek, Missouri, in November 2002 and became
aware of the large amount of money BP had invested in that community in addition to
that spent on remediating the contamination. Then, in November and December 2002,
emails were exchanged between various City officials discussing "wish lists" to present
to BP asking for similar community reinvestment projects for Neodesha. At this point,
the City had retained an attorney, Jeff Kennedy, to obtain some additional education
regarding the issues concerning other environmental cleanup sites for which BP was
responsible. There is an affidavit of City Commissioner Casey Lair in the record that
stated the City was considering litigation beginning in June 2003.
While this was going on, an advisory board composed of a variety of citizens and
representatives of the City, the county, the Department of Health, and BP came together
to study the situation. BP and the Department of Health suggested the formation of this
advisory board to provide a community review of BP's proposed remediation plan. This
plan was called the Corrective Action Study. This group started its review in April 2003
and concluded sometime in August or September 2003. The advisory board unanimously
37
approved the Corrective Action Study. Ultimately, the Department of Health approved
the study.
Meanwhile, some City officials approached BP about City projects at some point
in mid-2003. In July 2003, in response to the City's requests, BP's representative
suggested another group be formed that included various representatives of different
constituencies to study these subjects. After discussions between the working group and
BP stalled, the Plaintiffs filed this lawsuit.
The Plaintiffs asked for a protective order barring the discovery of these
documents in May 2007. The Plaintiffs contended that BP was improperly questioning
various witnesses in its depositions about settlement negotiations. The Plaintiffs claimed
three privileges: attorney-client, work-product, and deliberative privileges. At this point,
they also claimed the information was inadmissible under K.S.A. 60-453 as it was related
to settlement negotiations.
The trial court granted the Plaintiffs' motion for a protective order with respect to
discussions and thought processes of the members of the BP work group based on K.S.A.
60-452 and K.S.A. 60-453. However, the trial court also ordered the Plaintiffs to produce
their documents identified by BP for an in-camera inspection to evaluate the applicability
of any of the privileges. After examining the documents, the trial court ordered some
produced for discovery.
On appeal, the Plaintiffs specifically complain about the admission of Exhibits
1024, 1038, 1041, 1048, 1053, and 1056. None of these exhibits are included in the
various volumes of trial exhibits included in the record on appeal. Similarly, the Plaintiffs
fail to cite to the record where such documents can be found. From the testimony,
however, we deduce:
38
 Exhibit 1048 was a June 4, 2003, e-mail from Cox to City Administrator
Joe Kerby, City Commissioner Casey Lair, and City Commissioner Jim
Schuessler about a position paper asking BP to pay for developing a
comprehensive plan for the City and the industrial park, as well as the
creation of Neodesha Lake as an alternative water source.
 Exhibit 1053 was a December 2003 e-mail from Lair to industrial
representative Ted Peitz that included an earlier e-mail from Peitz about his
"wish list."
 Exhibit 1041 was a document that listed Peitz', Lair's, and Kerby's "wish
lists"; the date of the document is not specified.
 Exhibit 1024 was a copy of the various "wish lists" placed side by side.
 Exhibit 1056 was a timeline put together by Cox, but the date is unknown.
The Plaintiffs limit their objections to these exhibits to a claim these are
documents regarding settlement negotiations and are not discoverable under the work-
product doctrine.
We note that the work-product doctrine, K.S.A. 2012 Supp. 60-226, is a discovery
rule. Under K.S.A. 2012 Supp. 60-226(b)(4), documents prepared in anticipation of
litigation or for trial by or for a party are not discoverable by another party in the absence
of some specific showing of need. The work-product rule is not an absolute privilege but
rather a limitation on discovery. Wichita Eagle & Beacon Publishing Co. v. Simmons,
274 Kan. 194, 218, 50 P.3d 66 (2002). Certainly by implication the rule precludes any
idea of extending the work-product doctrine to reports or statements, even if written,
obtained by the client or his or her investigators which are not prepared under the
supervision of an attorney in preparation for trial. 274 Kan. at 220.
We must point out that we cannot tell from the record whether the documents
ordered produced by the trial court were the same documents now at issue. The Plaintiffs
39
have failed to adequately designate a record for us to review this issue. The record does
reveal that the trial judge ordered the production of documents for in-camera inspection
in the same order granting the Plaintiffs' motion for a protective order precluding
questioning about settlement negotiations.
We also note that the Plaintiffs object because the documents and testimony were
inadmissible under K.S.A. 60-453. That statute provides that evidence a person has
offered to accept a sum of money or any other thing, act, or service in satisfaction of a
claim is inadmissible to prove the invalidity of the claim or any part of it. Obviously the
purpose of the statute is to promote settlement without fear the settlement will be used in
evidence against the settling parties. See Lytle v. Stearns, 250 Kan. 783, 791, 830 P.2d
1197 (1992).
BP argues this evidence was admissible to impeach the Plaintiffs' witnesses
regarding their motives in filing the lawsuit and to directly contradict their testimony
about the nonexistence of "wish lists." In addition, it appears that a document containing
similar information was admitted and not challenged by the Plaintiffs on appeal. This
includes the Plaintiffs' Exhibit 1045 given to BP's representatives by Cox and Lair even
though the advisory group was still meeting and reviewing BP's remediation plan. In
addition, Cox testified about "wish lists" being drafted as early as November and
December 2002, six months before City officials admitted they were contemplating
litigation and actually attempted to initiate settlement negotiations.
Additionally, the Plaintiffs did not object to the testimony of several witnesses
about what was on the lists and how they were compiled. The admission of the lists
themselves might have been cumulative but not so prejudicial as to require reversal.
By using these documents, BP opened the door for the Plaintiffs to present
extensive testimony about BP's contamination issues in litigation concerning plants in
40
Sugar Creek, Missouri, and Casper, Wyoming. The trial court had, in a pretrial ruling,
prohibited such evidence. But because of BP's use of these documents, the Plaintiffs were
able to present evidence about the lawsuits in Wyoming and Missouri through its
examination of various witnesses. The Plaintiffs used this information to their
considerable advantage. Given this record, we conclude that if there was error in the
admission of these exhibits, we are not convinced the jury's verdict would have changed
had they not been admitted. See Kansas City Mall Assocs. v. Unified Gov't of Wyandotte
County/KCK, 294 Kan. 1, 8, 272 P.3d 600 (2012).
Thus, we see no abuse of discretion in the trial court denying the motion for a new
trial on these grounds.
Opinion testimony offered by three witnesses
Next, the Plaintiffs claim the trial court erred in permitting three BP witnesses to
offer opinion testimony during the trial: Tammy Brendel, Stan Flagel, and DeWayne
Prosser. These three were not designated as expert witnesses. The Plaintiffs point out that
permitting their testimony was prejudicial to Plaintiffs' case because these three witnesses
were the only ones that criticized the testimony of the Plaintiffs' expert, Dr. Stephens. We
will review their testimony in order.
A brief review of the law is helpful at this point. K.S.A. 60-456(a) states that if the
witness is not testifying as an expert, his or her testimony in the form of opinions or
inferences is limited to such opinions or inferences the judge finds (a) may be rationally
based on the perception of the witness and (b) are helpful to a clear understanding of his
or her testimony. This statute permits opinion testimony by a nonexpert witness if the
opinion is incidental to the witness' actual knowledge of the facts and circumstances of
the case. See Pullen v. West, 278 Kan. 183, 211, 92 P.3d 584 (2004). Of course, whether
a witness, expert or layperson, is qualified to testify as to his or her opinion is to be
41
determined by the trial court in the exercise of its discretion. That discretion is not subject
to review except for abuse of that discretion. Blue Cross & Blue Shield of Kansas, Inc. v.
Praeger, 276 Kan. 232, 271, 75 P.3d 226 (2003).
Brendel was the site manager at Neodesha for BP's remediation management
group and was responsible for overseeing contamination cleanup and community
relations related to the cleanup. After she joined BP, Brendel was trained to oversee
environmental consultants such as geologists or hydrogeologists, to work with state
agencies, and to deal with various third parties. She testified that BP would have periodic
meetings to exchange information, present technical experts, and otherwise learn from
consultants.
Brendel was accused of making false statements to the Plaintiffs. In response, BP's
counsel asked her whether she knew, prior to the lawsuit being filed, where the
contamination plume was and whether she currently knew where the contamination was
located. Based upon her personal knowledge of the files, she testified she was
comfortable in saying where the contamination plume was and that it was stable. She was
then asked if she was comfortable in saying there was no risk. At this point, the Plaintiffs
objected because she was not an expert qualified to testify about risk. The trial court
overruled the objection, and Brendel testified that based upon her review of the files,
including the risk assessment, she was comfortable in saying there was and currently is
no risk. As her final point, Brendel testified that BP was cleaning up the contamination. A
fair reading of the testimony reveals that Brendel's statements were based on her personal
knowledge from working as the BP site manager and by being familiar with BP's records
regarding the site. This testimony appears to be relevant to responding to the Plaintiffs'
allegations that she, along with other BP employees, made prior misrepresentations on
these subjects. The weight given to her testimony, of course, was for the jury to decide.
42
Brendel also testified from her experience that all refineries did not look for off-
site contamination plumes before 1990 because that was when governmental regulations
changed. The Plaintiffs objected based upon hearsay and lack of foundation. This
objection was overruled. The Plaintiffs also objected when Brendel was asked what her
understanding was about the effect of clay under the contamination site and to her
statement that the presence of the clay was another reason why she believed there was no
risk. Finally, Brendel was permitted to testify that as site manager and based upon her
own experience it would not be appropriate to guess how long it would take to remove
the contamination.
Next, the Plaintiffs complain about the testimony of Flagel, a hydrogeologist who
worked for BP's contractor RETEC. Flagel worked at the Neodesha site from 2001
through 2007. The Plaintiffs objected when the trial court allowed Flagel to testify that
the water from the groundwater testing wells set by BP was not potable under current
Kansas health regulations. These were wells he had tested. The Plaintiffs also objected
when Flagel was permitted to testify that based on comparing groundwater monitoring
reports from 2000 and 2006 with his observations at the site, benzene concentrations at
the test wells had decreased. These opinions were based on Flagel's own knowledge and
his perception of the testing that he helped monitor.
Moving on, the Plaintiffs also complain about certain portions of the testimony of
Prosser, a local pastor and former City commissioner and county commissioner. We note
that Prosser and his church opted out of the class action. The Plaintiffs challenge
Prosser's testimony about his personal observations of several of the churches claiming
damages that were constructing new buildings on the BP plume site after the lawsuit was
filed. Prosser's cited testimony related to his personal observation about the rebuilding
and clearly was not opinion testimony. The trial court sustained objections to BP's
attempt to get Prosser to testify about the extent of damage caused by a flood in 2007.
43
Based on our review of the record and the nature of the testimony presented, the
Plaintiffs have failed to establish that the trial court erred in admitting this testimony. In
each instance, the opinions appear to be based upon the witness' actual knowledge of the
facts and circumstances of the case. See Pullen, 278 Kan. at 211. We find no abuse of
discretion here and certainly insufficient grounds to grant a new trial.
Testimony of Louis L. Wilde
The Plaintiffs contend that the trial court erred when it permitted BP to present the
testimony of Dr. Louis Wilde concerning any drop in the value of real estate in Neodesha
due to the contamination caused by the oil refinery. We note that the Plaintiffs do not
claim that Dr. Wilde's testimony affected the jury's determination that BP was not liable
under any of their theories.
The qualification of an expert witness and the admission of that witness' testimony
are matters within the broad discretion of the trial court. Manhattan Ice & Cold Storage
v. City of Manhattan, 294 Kan. 60, 70, 274 P.3d 609 (2012). In order to testify as an
expert, the witness must testify within the scope of the individual's "special knowledge,
skill, experience or training." K.S.A. 60-456(b).
The record reveals that Dr. Wilde graduated from the University of Iowa with a
B.A. in mathematics in 1968 and from the University of Rochester with a graduate degree
in economics in 1977. He received his doctorate and became an assistant professor at the
California Institute of Technology. At that school, he taught various economics classes in
the undergraduate program and also taught microeconomic and public finance courses to
graduate students. One of the classes he taught was environmental economics, which
focused on figuring out how to deal with environmental problems that might arise that the
market cannot address. This includes developing taxes, penalties, subsidies, and other
solutions for environmental issues.
44
By 1992, Dr. Wilde had moved into consulting work. In this case, he was hired to
analyze the real estate market in Neodesha and determine whether property values had
dropped due to the discovery of the off-site contamination from the oil refinery. The
Plaintiffs objected to Dr. Wilde's qualifications because he was not an appraiser and his
studies had not been in real estate. The trial court concluded Dr. Wilde could testify as an
economist and allowed him to display certain slides to the jury as visual aids to his
testimony. The court excluded other slides because they invaded the province of the jury.
Basically, Dr. Wilde compared the real estate markets in Fredonia and Neodesha
by statistically comparing the appreciation rates between the housing markets in the two
communities. He discussed the appreciation rates between the two markets and noted
them moving together between 1997 and 1999. He testified that Fredonia's appreciation
rate swept up between 2000 to 2002 and Neodesha's rate lagged for a couple of years but
by 2002 the two communities' appreciation rates were the same and continue to remain
the same except for a brief bump-up in Neodesha's values in 2006.
Put quite simply, the Plaintiffs have failed to persuade us that Dr. Wilde was
unqualified to express the opinions he presented. Dr. Wilde established his training and
experience in the economic analysis of real estate affected by environmental issues. The
Plaintiffs do not cite any portion of Dr. Wilde's testimony where he exceeded this
background and training. Nor do the Plaintiffs cite any authority that supports their
assertion that the only way to measure property value damages in this case is through the
real estate appraisal process. The Plaintiffs' citation of K.S.A. 79-503a is not helpful
because that statute deals with controlling the value of property for ad valorem tax
purposes and does not pertain to the issues here.
Additionally, since the jury found BP not liable on any theory, we doubt if the jury
ever got to the issue of damages and even considered this evidence.
45
Based on this record, we hold the Plaintiffs have failed to establish the trial court
abused its discretion by allowing Dr. Wilde to testify.
Speculation about lost tax revenues
In this issue, the Plaintiffs challenge the trial court's ruling that evidence
concerning possible lost tax revenues was inadmissible. Prior to trial, BP, in a motion in
limine, sought to exclude evidence relating to any governmental entity's claim of lost tax
revenue. BP argued that lost tax revenues are not a recoverable claim for damages
because the claims are solely derivative of the losses suffered by third parties. The trial
court agreed and ruled that the Plaintiffs' claim of $61 million in lost tax revenue is a
derivative claim and would not be recoverable. In other words, the calculation of such a
claim would depend upon too many variables beyond the subject of the lawsuit and any
award for such would be the result of mere speculation.
To us, the Plaintiffs provide no citation to any legal authority that supports their
position that lost tax revenue is a direct and foreseeable result of BP's failure to live up to
its commitment to the "long term economic development of Neodesha." Failure to
support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).
The case cited by the Plaintiffs to the trial court, Hawkinson v. Bennett, 265 Kan.
564, 962 P.2d 445 (1998), is not helpful. In that case, the Supreme Court ruled that a
business' claims for lost past and future profits were not too speculative to be allowed.
The claims were based on testimony of someone who had personal knowledge of the
financial and sales history of his franchise. The jury was free to give whatever weight, if
any, to the testimony. 265 Kan. at 592.
46
In contrast, we hold the trial court correctly assessed this evidence as being
speculative in this case because the value of lost tax revenues would depend entirely upon
the value of any third party's property, the disposable income of the residents, the
national and local economy, and the tax laws in effect at the time of assessment. All of
these are subjects not covered by the evidence presented in this lawsuit.
Other courts have rejected such claims. See, e.g., Wyoming v. United States Dept.
of Interior, 674 F.3d 1220, 1234-35 (10th Cir. 2012). In that case, the court ruled that a
lost future tax revenue claim was too speculative and did not give the petitioners standing
to challenge the regulation limiting snowmobile use in national parks.
Finding no authority to support the Plaintiffs' position, we hold that this is not
grounds for a new trial.
Evidence of flood and subsequent FEMA efforts
Floodwaters inundated Neodesha in 2007. As a consequence, the Federal
Emergency Management Agency, FEMA, provided help for the community. The
Plaintiffs now argue that any evidence concerning either the flood or the remediation
efforts by FEMA was irrelevant and designed to confuse the issues. In their view, such
evidence was inadmissible.
The Plaintiffs complain in their brief that BP improperly cross-examined witnesses
on this topic, but they fail to cite to any support for those assertions in the record. Under
our appellate rules, facts must be keyed to the record by volume and page so as to make
verification reasonably convenient. Any material statement made without such a
reference may be presumed to be without support in the record. See Rule 6.02(a)(4)
(2013 Kan. Ct. R. Annot. 39); Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 623-
24, 244 P.3d 642 (2010).
47
The Plaintiffs confine their complaint about this to a small portion of the
testimony of Prosser, a former City commissioner, a county commissioner, and a pastor
of a local church. Indeed, Prosser testified about the flood in June 2007 and the actions
taken by various churches that collected clothing, furniture, and other items for flood
victims. After the flood, Prosser saw that the local Nazarene church no longer used its old
parsonage but started building a new parsonage within BP's designated plume area.
Prosser also testified that within the last 2 years after the lawsuit was filed, he noted the
local Catholic church had built a fellowship hall within the BP plume area.
Our reading of the record discloses no reference in Prosser's testimony about
FEMA.
We note that the Plaintiffs' own witnesses also stated that a flood occurred in
Neodesha after the filing of this lawsuit. The Plaintiffs' witnesses also proffered exhibits
about the cost to construct new churches and public buildings as part of the Plaintiffs'
damage claim. Thus, the testimony that two of the churches chose to construct a new
building on the surface above the acknowledged BP contamination plume after suit was
filed would be relevant to those claims for damages as well as the Plaintiffs' claim
regarding the perceived health risks of buying or building property in Neodesha. In our
view, Prosser's testimony on this point is a small part of a 17-week jury trial.
This limited reference to a natural disaster was not prejudicial to the Plaintiffs'
claims. We are not persuaded that the admission of this evidence is grounds for ordering
a new trial.
48
Attacks trying to discredit Dr. Dahlgren
During trial the Plaintiffs presented the testimony of a toxicologist, Dr. Dahlgren.
The Plaintiffs contend that BP improperly presented evidence in an attempt to discredit
Dr. Dahlgren.
Dr. Dahlgren is a licensed California physician who has practiced internal
medicine and toxicology since 1972. Dr. Dahlgren testified at length about the risks of
exposure to benzene and other refinery-related pollution at the Neodesha site, even
though no one made a personal injury claim in this case. BP's counsel cross-examined
him extensively.
One of the topics of cross-examination focused on Dr. Dahlgren's website for his
B-Well Clinic. During cross-examination, Dr. Dahlgren confirmed that the clinic
provides services such as naturopathic and traditional Chinese medicine and gave people
advice about improving their health through diet, exercise, and lifestyle. The clinic also
offers detoxification services that include sauna-based detoxification, niacin treatments,
and high doses of antioxidants, as well as cold-pressed oils to remove lipid-based toxins.
The website advertises Chinese medical treatment such as cupping and Jin Shin. Dr.
Dahlgren admitted that he did not understand these therapies and traditional Chinese
medicine was not scientifically proven but did achieve results with some patients.
Our reading of the record indicates that the only objection the Plaintiffs made
during Dr. Dahlgren's cross-examination was to an exhibit concerning an advertisement
for his services for evaluating populations exposed to environmental pollutants. The
Plaintiffs' objection was that the exhibit was not on BP's exhibit list. The trial court
overruled the objection because it was presented for impeachment purposes. The
Plaintiffs did not assert any other objection during the cross-examination about Dr.
Dahlgren's clinic and his one-time association with a Chinese doctor at the clinic.
49
Based upon this, we think the Plaintiffs' failure to contemporaneously object to
this portion of Dr. Dahlgren's cross-examination precludes our appellate review on this
point. Kansas appellate courts have repeatedly relied upon K.S.A. 60-404, which requires
a timely and specific objection to challenged evidence. State v. Holman, 295 Kan. 116,
126, 284 P.3d 251 (2012).
K.S.A. 60-404 similarly applies to the trial court's consideration of a new trial
motion. We think this rule also applies to the situation when a trial court considers a
motion for a new trial. See State v. Cook, 286 Kan. 1098, 1109, 191 P.3d 294 (2008). For
want of an objection, we will not review the matter.
Evidence of BP's safety record and honesty
The Plaintiffs aver that the trial court erred in excluding certain evidence about
BP's poor safety record in response to BP employees who testified that BP's primary
focus was on safety. The Plaintiffs contend the trial court's ruling minimized the effect of
negative evidence which they wanted to present to the jury. The Plaintiffs have not
properly framed this issue for our court.
The Plaintiffs' brief fails to detail any of the documents or argue why the trial
court's handling of them was contrary to any statute or was an abuse of discretion. The
brief refers to a number of documents that the Plaintiffs downloaded from the BP website
that they wanted to use for impeachment purposes. The record reveals that the trial court
excluded some of the documents as irrelevant, some as unduly prejudicial, and some as
improper under K.S.A. 2012 Supp. 60-455. But, we note the trial court did allow the
Plaintiffs to cross-examine at least one BP employee regarding some of the statements
made in the documents by BP executives. Simply put, the Plaintiffs have failed to
specifically identify any of the documents or adequately explain their impeachment value
or argue any basis to establish the trial court's specific rulings that were erroneous or an
50
abuse of discretion. A point raised incidentally in a brief and not argued therein is
deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645,
294 P.3d 287 (2013).
We question if this amounts to reversible error. The trial court did permit the
Plaintiffs to use downloaded documents to cross-examine BP's witnesses. One witness
was cross-examined about a website document discussing the discovery of oil in
deep-water drilling off the coast of Angola, comparing the depth of their drilling for oil to
the depth of the field in Neodesha. The witness agreed safety was always an issue and
could always be improved. The witness was asked about BP's chairman of its board of
directors 2007 comments to the board that BP continued to "face a series of regulatory
issues in the U.S.—a perfect storm, if you like, but mostly of our own making." In
addition, the Plaintiffs were permitted to inquire about and admit documents reflecting
other comments of the chairman of the board about the company setting high standards
"in the way in which we interact with [the] communities in which we operate . . . [but]
have failed to live up to those standards."
In our view, the trial court used an even-handed approach in dealing with this
issue. We note that by relying on the "wish list" documents, the trial court allowed the
questioning of BP witnesses about lawsuits arising from a series of contamination sites in
Casper, Wyoming, and Sugar Creek, Missouri. These other contamination sites were
discussed repeatedly with BP employees and others. Similarly, the trial court permitted
another Neodesha witness, Ted Peitz, to testify that his father died of lymphoma and his
concerns that he and two of his employees might have a genetic disposition to lymphoma.
Consequently, Peitz' company pays for screenings for those men at a special clinic.
We do not see this as reversible error.
51
Denying the deposition of Lord Browne
In a closely related issue, the Plaintiffs complain that the trial court unreasonably
refused their request to depose Lord John Browne, the chief executive officer of BP p.l.c.,
BP's parent corporation.
BP objected to the motion to compel Lord Browne's testimony. BP argued that
Lord Browne was a subject who resided in the United Kingdom and that BP p.l.c. was
not a party to this action. BP made similar arguments with respect to a request to depose
Tony Hayward, who replaced Lord Browne as CEO in 2007. No subpoenas in this case
were issued according to the Hague Service Convention, as required for international
legal process.
The Plaintiffs say they wanted to depose Lord Browne because he created the BP
Code of Conduct, which was cited frequently by BP during its community relations
campaign. The Plaintiffs pointed out he ended up resigning as CEO after he was caught
lying to the parent corporation's board of directors. According to the transcript, Lord
Browne was terminated after the London newspapers reported that he had a homosexual
affair. Browne was reportedly terminated by the board for lying about the relationship.
We see nothing in the record that persuades us that the trial court's ruling was
incorrect on this point. The Plaintiffs have made no showing of any alter ego that would
allow them to pursue the parent corporation. The trial court's refusal to grant a new trial
on this basis is not an abuse of discretion.
Limiting closing arguments to 4 hours
The Plaintiffs contend that the trial court abused its discretion in limiting closing
arguments to 4 hours per side. The record reflects the judge announced the 4-hour limit
52
after conferring with the parties on the final version of the jury instructions. At no time
did the Plaintiffs assert to the judge that the 4-hour limit was insufficient to present their
case. The Plaintiffs never requested additional time for a rebuttal because of any
arguments made by BP's counsel.
We view this as a matter of discretion by the trial court. The proper length of
closing argument is an issue left to the sound discretion of the trial court. State v. Trotter,
245 Kan. 657, 662, 783 P.2d 1271 (1989). Here, 4 hours does not appear unreasonable,
especially in light of the fact neither party objected to the time allotted. We see no
reversible error here.
Insufficient sanctions imposed on BP
The Plaintiffs argue that the trial court abused its discretion by not imposing a
more severe sanction upon BP because it produced a huge number of documents just
before the trial started. In the Plaintiffs' view, BP produced thousands of pages of
documents on the "eve of trial." They now argue that the trial court should have struck
BP's pleadings and entered default judgment in their favor.
The decision to impose sanctions for discovery abuses rests within the sound
discretion of the trial court. We, as an appellate court, review such sanctions to see if
there is an abuse of discretion. See Schuerholz v. Hinzman 295 Kan. 786, Syl. ¶ 11, 289
P.3d 1155 (2012). As we have stated before, a judicial act constitutes an abuse of
discretion if the action is arbitrary, fanciful, or unreasonable—i.e., if no reasonable
person would take the view adopted by the trial court—or is based on an error of law or
an error of fact. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied
132 S. Ct. 1594 (2012).
53
The record on appeal reflects that 6 weeks before the trial started the Plaintiffs
sought sanctions against BP for failing to timely produce documents. Sometime in March
2007, the Plaintiffs requested certain documents from the American Petroleum Institute,
the records of BP employee John Lamping, and documents relating to the environmental
assessment of other Amoco refineries. In reply, BP raised various objections to the
requests. Then, in April 2007, the Plaintiffs sent a "golden rule" letter to BP again
demanding the documents. They followed this in May 2007 with a motion to compel the
production of the documents.
The trial court heard the matter in July 2007 and ruled that the documents were
subject to discovery and must be produced by July 20, 2007. After receiving that ruling,
the Plaintiffs then filed a request for sanctions, contending that BP had failed to produce
the requested documents by the date ordered by the court. Instead, BP advised the
Plaintiffs that the documents were available in offices in Cleveland, Ohio, and
Wilmington, Delaware. There were about 45 boxes of documents available. At this point,
the Plaintiffs requested the trial court enter whatever sanctions it deemed appropriate and
specifically requested that the court order BP to immediately deliver all the documents to
the Plaintiffs' office at BP's expense.
The trial court ordered BP to immediately copy and deliver to the Plaintiffs' office
copies of all documents at BP's expense. After the trial court issued that order, BP filed a
notice of compliance and explained it had experienced a variety of issues in compiling,
copying, and transferring documents saved on microfilm. BP also contested the motion
for sanctions.
At this point, the Plaintiffs filed another motion claiming that BP had still failed to
produce numerous documents and had lied to the trial court. The Plaintiffs also
complained that some of the documents recently produced were related to their first
request for production of documents. Then, in the second week of August, the Plaintiffs
54
filed five more motions for discovery sanctions against BP. The separate motions
involved various subjects, such as three rolls of microfilm that were not copied when an
employee was on vacation and BP's failure to designate a corporate witness as required
by K.S.A. 60-230(b)(5). The Plaintiffs again asked that all documents withheld based on
attorney-client privilege be produced.
At the hearing on these motions, the Plaintiffs' counsel agreed that a number of the
late produced documents had been produced previously but came from a different storage
site, although some had additional notes written on them. BP's counsel responded in
detail concerning the manner in which documents were produced and where errors were
made. BP also argued that some documents were produced early in the case but the
Plaintiffs' attorneys did not tag them for copying. BP reported that it had spent over
$50,000 already in its efforts to comply with the order compelling discovery.
The trial court ruled in a straightforward fashion. After accepting the blame for not
appointing a special master to monitor and handle discovery issues for this massive case,
the trial court refused to strike BP's pleadings as a sanction. Likewise, the trial court
refused to strike the privilege log. The trial court did order that any document produced
after July 17 would be deemed authenticated and its relevancy would be evaluated at
trial. The trial court also noted that if the Plaintiffs wanted to list a statement of costs
associated with the discovery issues, the judge would consider it. The trial court then
spent time discussing the K.S.A. 60-230(b)(5) deposition issue and the identity of
anybody else that the Plaintiffs wanted to depose and pressed the Plaintiffs for an
explanation of how the information they had received prejudiced them. After that, the
trial court declined to order further sanctions.
Sanctions should be designed to accomplish the objects of discovery rather than
for the purpose of punishment. Shay v. Kansas Dept. of Transportation, 265 Kan. 191,
194, 959 P.2d 849 (1998). The dismissal or granting of a default judgment is a drastic
55
remedy to impose as a discovery sanction and should only be used as a last resort when
other lesser sanctions are clearly insufficient to accomplish the desired outcome. Canaan
v. Bartee, 272 Kan. 720, 727, 35 P.3d 841 (2001).
From our reading of the record, the Plaintiffs filed a request for production of
documents in April 2007 and waited 6 weeks before trial to file a motion to compel.
While it is true that BP was late in delivering documents, it produced a huge number of
documents in response to the trial court's order compelling discovery. During this process
additional documents were produced that were responsive to earlier document requests.
But BP made a showing that all but 14 of the new documents had been previously
produced from another source. As far as we can tell, the Plaintiffs complain that the trial
court refused to permit depositions of other witnesses related to the K.S.A. 60-230(b)(5)
depositions about the relationships between the corporations, not depositions about the
new documents.
After examining the record on appeal and the extensive rulings made by the trial
court in response to the seven different motions for sanctions, we quite frankly see no
abuse of discretion. This was obviously an important stage of this proceeding, and the
district judge worked tirelessly to ensure that discovery would take place. No doubt the
trial court could have used a special master here, as the judge opined, but one was not
appointed. We do not believe that there was an abuse of discretion that would call for a
new trial in this particular case based upon the late production of documents by BP.
This matter was tried to the jury for 17 weeks. The Plaintiffs have not convinced
us that they have been forced to abandon some reasonable argument based on this "late
production" of documents. We recognize that the Plaintiffs received a huge number of
documents before trial. But our review of the record convinces us they were able to
overcome this disadvantage with skill and zeal.
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We cannot agree that refusing to strike BP's pleadings and to enter a default
judgment against BP was an abuse of discretion.
Cross-examination about Industrial Commission meetings
The Plaintiffs also complain about the trial court permitting BP's attorney to use
notes from the Neodesha Industrial Commission meetings to impeach the credibility of
Peitz, the owner of Neodesha Plastics, Inc. Neodesha Plastics, Inc. is a named plaintiff.
The Plaintiffs contend that Peitz was not present at the meetings and the meeting notes
were improperly used to impair Peitz' credibility. Again, the Plaintiffs argue this without
citing any legal authority other than K.S.A. 2006 Supp. 60-460.
In order to effectively rule upon this issue, we must consider all of the
circumstances. During his direct testimony, Peitz testified that his business employed
over 200 employees. He stated that the City of Neodesha was important to him and his
company was an excellent corporate citizen in the community. Peitz stated that he needed
more space for his expanding company but he was unwilling to expand at the current
industrial site because of the contamination. He did admit that when he bought the
building in 1995, the City did not tell him there was contamination on the property. He
testified that he had considered moving because of the contamination and the inability to
expand his business at that site. He also testified that there was no other reason he would
move his business, but as a contingency plan he has purchased a right to buy 80 acres on
U.S. Highway 400, where he could get more reasonable utility rates.
In turn, during cross-examination Peitz was asked about the potential new site he
mentioned on direct examination. At one point during cross-examination, Peitz was asked
to review minutes from a December 2006 Industrial Commission meeting. The trial court
overruled the Plaintiffs' objection based on hearsay and relevancy. The trial court found
the document relevant and that Casey Lair had authenticated it in his testimony. In
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addition, J.D. Cox, another attendee at the meeting, was the Plaintiffs' designated
representative throughout the entire trial; thus, he was available to be cross-examined
about the minutes' accuracy.
After reviewing the document, Peitz admitted he had asked nearly every City
administrator to reduce the charge for his business' electricity and "alienated every [one]
. . . over the price they charge me for electricity." Peitz pointed out that the meeting
minutes were just statements of a number of people who speculated about what they
could do to help his company and they were not his statements. Peitz also testified that he
could get a better electric rate at the new location but it did not make mathematical sense
to move and build a new facility to replace the current facility just for lower electric rates.
Our reading of the record reveals that BP tried to impeach Peitz' credibility about
his desire to remain in Neodesha. He admitted he had discussed moving his facility
elsewhere. The document in question confirms that the Industrial Commission was
worried about the possibility of Peitz moving his business elsewhere. However, it appears
the document had little impact beyond Peitz' own testimony and that he ably deflected
any inference that his concerns about moving would be based on electricity rates rather
than the contamination.
For these reasons, we do not view the document as inadmissible hearsay and,
indeed, it was relevant in an attempt to impeach Peitz. We affirm the trial court's ruling
upon this point. In addition, we must point out that even if the trial court erred in
allowing this cross-examination, we view it as rather ineffectual and find it unlikely that
it had any impact on the Plaintiffs' substantial rights.
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SUMMARY JUDGMENT WAS PROPER ON THE CLAIMS OF UNJUST ENRICHMENT.
The Plaintiffs claim that Kansas law recognizes a claim for unjust enrichment
based upon the expenses BP would save by leaving the contamination it created under the
Plaintiffs' property. Thus, the trial court erred by granting summary judgment to BP on
this point.
Generally, recovery under a theory of unjust enrichment may occur only after
proof of:
 a benefit conferred upon the defendant by the plaintiff;
 an appreciation or knowledge of the benefit by the defendant; and
 the acceptance or retention by the defendant of the benefit under such
circumstances as would make it inequitable for the defendant to retain the
benefit without payment of its value. Haz-Mat Response, Inc. v. Certified
Waste Services Ltd., 259 Kan. 166, 177, 910 P.2d 839 (1996).
Primarily, the Plaintiffs rely on Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181(1961). In Ablah, the plaintiffs filed a replevin action seeking possession of various
books, records, and other documents and personal property held by the defendant, a
certified public accountant. The sheriff seized the documents and personal property
identified by the plaintiffs, and the property was ultimately turned over to them. The
defendant pursued a counterclaim, asserting he only possessed working papers that he
had prepared while performing an audit as an independent contractor for the plaintiffs
and he was entitled to sole possession of his records.
In response, the court found that the defendant had pled sufficient facts to establish
title and ownership of the papers when the plaintiffs started the replevin action. In an
effort to determine damages, the Supreme Court acknowledged that if the accountant's
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damages were confined only to the invasion of his right to exclusive possession of his
personal property, such a ruling would not take into account the benefits the plaintiffs
would receive from the use of his work found in the papers. Citing the older "resulting
benefit" rule, the Supreme Court stated that no one should be allowed to enrich himself
unjustly at the expense of another whose property he has wrongfully detained. 188 Kan.
at 678-79. Thus, the law imposes a duty to return the property and to pay the value of the
use of the returned property, which may be treated as the result of an implied contract.
188 Kan. at 678-79.
We must point out that the Plaintiffs do not explain how Ablah and the resulting
benefit rule apply to the facts of this case.
The Plaintiffs also rely on Beck v. Northern Natural Gas Co., 170 F.3d 1018 (10th
Cir. 1999). In Beck, the landowners cross-appealed, challenging the district court's ruling
that the fair rental value of the Simpson formation was the proper measure of damages
for both their trespass and their unjust enrichment claims. The court rejected the
landowners' claims to profits the producer derived from the gas stored under their
properties. 170 F.3d at 1024.
Basically, the Plaintiffs contend that BP is actually "storing" contaminants under
their property and is thus unjustly enriched by failing to remove them. The Plaintiffs
ignore that BP is actively engaged in the remediation actions approved by the Department
of Health and the local advisory group. Thus, the question remains whether, as a matter
of law, the third element of unjust enrichment can be satisfied. In other words, the
question becomes whether under such circumstances it is inequitable for BP to retain the
benefit without payment for its value. See Haz-Mat Response, Inc., 259 Kan. at 177.
We view this as an equitable claim and, generally, an equitable remedy is not
available when an adequate remedy exists under another legal claim. See Nelson v.
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Nelson, 288 Kan. 570, 597, 205 P.3d 715 (2009). We question whether this is "storage."
After all, the testimony indicated these "plumes" were all moving. In any event, the
remedies of law for negligence, nuisance, and violations of K.S.A. 65-6203 were all
available to the Plaintiffs to attempt their recovery.
We see no error in the trial court granting summary judgment to BP on this point.
THE VERDICT WAS NOT CONTRARY TO THE WEIGHT OF THE EVIDENCE.
For this issue, the Plaintiffs contend the trial court erred in denying their motion
for a new trial on their claim that the jury's verdict, especially on the strict liability and
trespass counts, was contrary to the evidence. They argue that no reasonable juror could
find that BP was not strictly liable for the contamination of the groundwater and that a
trespass occurred.
We turn to Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, Syl. ¶ 12, 266 P.3d
516 (2011), for guidance of our review on such questions:
"When a verdict is challenged for insufficiency of evidence or as being contrary
to the evidence, it is not the function of the appellate court to weigh the evidence or pass
on the credibility of the witnesses. If the evidence, with all reasonable inferences to be
drawn therefrom, when considered in the light most favorable to the prevailing party,
supports the verdict, it will not be disturbed on appeal."
We are not persuaded to order a new trial with respect to this issue for several
reasons. First, the Plaintiffs' discussion concerning strict liability limits itself to the
rejected Koger standard that strict liability exists for groundwater pollution without
applying any of the Williams factors. This position was explicitly rejected by the
Supreme Court in Neodesha I. 295 Kan. at 313-19.
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In this argument, the Plaintiffs now fail to refer to any of the Restatement
(Second) of Torts factors. Additionally, our Supreme Court in Neodesha I did review the
evidence under the Restatement factors and found the matter was clearly one for the jury
to decide. 295 Kan. at 323-25. We certainly cannot alter that holding.
Concerning the continuing trespass claim, the Kansas Supreme Court has held:
"'The concept of trespass should be used, if at all, only where defendant intends to have
the foreign matter intrude upon the land , or where defendant's "act is done with
knowledge that it will to a substantial certainty result in the entry of foreign matter."'
[Citation omitted.] Liability for a continuing trespass is premised on the original intrusion
being trespassory. [Citation omitted.] Thus, if the original intrusion is not trespassory,
mere knowledge that a substance reached the land of another is insufficient to establish a
continuing trespass." United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725,
729-30, 915 P.2d 80 (1996).
In conformity with this ruling, a panel of our court held that when a claim of
trespass is based on foreign matter intruding on another's land, the plaintiff must show
that "the defendant intended the foreign matter to intrude on the plaintiff's land or that the
defendant performed the act with knowledge that the act would, to a substantial certainty,
result in the foreign matter entering the plaintiff's land." Muhl v. Bohi, 37 Kan. App. 2d.
225, 229-30, 152 P.3d 93 (2007).
The statute of repose bars the Plaintiffs from claiming trespass with respect to
actions taken while the refinery was operational. There is no evidence in this huge record
on appeal that we can find that suggests BP or its predecessors intentionally released
foreign matter onto or under the property of another.
Put simply, the Plaintiffs are in an unenviable position of making claims long after
the refinery closed. The law bars any legal liability resulting from the actions or failure to
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act during the refinery's operation. For example, assuming there was contamination in the
soil when the refinery was closed, it could not constitute a trespass when the site was
quit-claimed to Neodesha for an industrial park because the pollutants were already there.
Even the Plaintiffs' experts did not opine when the pollutants started to spread from the
property.
Viewing the record in the light most favorable to BP, the prevailing party, as
required by Wolfe Electric, Inc., 293 Kan. 375, Syl. ¶ 12, there is adequate evidence in
the record that shows BP's remediation activities after the refinery closed were such that
BP did not know its contamination had spread to other properties or that there was a
substantial certainty such dissemination would occur. We see no reversible error here.
ATTORNEY MISCONDUCT.
The Plaintiffs contend that BP's attorneys conducted themselves in such an
unprofessional, prejudicial manner that the trial court should have granted the Plaintiffs a
new trial because of this professional misconduct. Basically, the Plaintiffs complain that
BP's attorneys
 failed to timely produce discovery documents;
 took contrary positions during the trial concerning RETEC's agency status;
 attempted to decertify the class in the middle of the trial;
 refused to cooperate in drafting jury instructions and unprofessionally
vilified the Plaintiffs and their counsel; and
 tampered with some depositions.
The major purpose of the introduction of evidence at trial is to arrive at the truth.
Hurlburt v. Conoco, Inc., 253 Kan. 515, 533, 856 P.2d 1313 (1993). The jury gleans the
facts from that evidence, and the jury is to apply the facts to the law as instructed by the
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court. Constrained by our ethical rules, counsel must present his or her client's case in the
light most favorable to the client. We recognize that these are hard-fought contests.
We will not readdress the issue of late production of documents since we have
dealt with this previously. We will now turn to the question of "inconsistent positions"
taken by BP regarding RETEC.
We understand that at one point prior to trial, the Plaintiffs argued that the "Book
of Common Prayer" was not privileged because it had been provided to RETEC, the
contractor hired to perform soil and water sampling at the site. Later, during the trial at a
bench conference, counsel for BP argued that RETEC's status as a contractor did not
allow the Plaintiffs to forego foundation requirements, and counsel lodged an objection to
RETEC's documents based on foundation or hearsay grounds. The court excused the jury.
Once outside the presence of the jury, the trial court noted that defense counsel might not
have been aware of a pretrial ruling on RETEC's status as an agent of BP for privilege
purposes and the trial court would not change that ruling.
We do not see how this denied the Plaintiffs a fair trial. This large record shows
there were a number of bench conferences throughout the trial, some of which were so
long that the trial court excused the jury early in the afternoon so the issue could be
addressed for the remainder of the day. It is true that BP's counsel took an inconsistent
position, but we see no harm coming from it, especially in light of how the trial court
adeptly handled the miscue.
Next, it is true that in July 2007, just before the trial but after the close of
discovery, BP moved to decertify the class because of a claimed lack of commonality and
typicality across the range of class members, which included: governmental entities,
individuals, and churches. The trial court, once again, denied this motion. But in October
2007, during the middle of the trial, the Kansas Supreme Court issued two decisions:
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Smith v. Kansas Gas Service Co., 285 Kan. 33, 169 P.3d 1052 (2007), and Gilley v.
Kansas Gas Service Co., 285 Kan. 24, 169 P.3d 1064 (2007). In both of those class action
cases, damages among class members were not necessarily typical or similar. Based on
their reading of cases, the Plaintiffs filed a motion for the creation of subclasses for
purposes of deciding damages. In response, BP filed a combined motion to dismiss and
decertify the class. The trial court once again refused to grant the order decertifying the
class and granted the Plaintiffs' motion for the creation of subclasses.
From our vantage point, BP's position was consistent and warranted based upon
the implications of the rulings in Smith and Gilley. We are not persuaded that BP's
position was unprincipled or inconsistent even though it was unsuccessful. Its attempt to
decertify the class was certainly not grounds for a new trial. After all, a trial court retains
the ability to modify a class at any time before final judgment. Critchfield Physical
Therapy v. The Taranto Group, Inc., 293 Kan. 285, 308, 263 P.3d 767 (2011). As one
treatise points out, the ability of a court to reconsider initial class rulings is a vital
ingredient in the flexibility of courts to realize the full potential benefits flowing from the
judicious use of class actions. 3 Newberg on Class Actions § 7:47, pp. 154, 159 (4th ed.
2002).
We now turn to the allegations that BP tampered with videotaped depositions. It
appears to us that the trial court correctly resolved this issue. The trial court compared the
statements on the video and determined that although there were obvious redactions, the
video presentation itself was consistent with the written transcript. The trial court
concluded that there was no tampering of the depositions, and we agree.
We believe that attorneys on both sides zealously represented their clients. Both
sides filed a large number of motions regarding numerous discovery, evidentiary, and
trial procedure issues. The depositions used as evidence in this case display aggressive
questions by attorneys from both sides. A fair reading of the briefs leads us to conclude
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that there is some animosity between counsel. But, we do not see any grounds for
ordering a new trial here. The matters that the Plaintiffs complain about on this point did
not deny them a fair trial.
CONCLUSION.
This was a massive lawsuit in every respect. Huge claims involving many
subclasses were tried, requiring weeks of testimony and hundreds of exhibits. Evidence
was often complicated and technical. In the end, though, the Plaintiffs could not prove
their case to the satisfaction of the jury.
In this appeal, the Plaintiffs ask us to overturn the trial court and grant them a new
trial. Their claims of error are unconvincing. We commend the patience and skill
displayed by the trial judge who had to struggle with this huge case. The errors we have
noted do not compel us to order a new trial.
Affirmed.
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