Bradley v. Armstrong Rubber Co.

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-60233.
Bessie G. BRADLEY, et al., Plaintiffs-Appellants-Cross-Appellees,
v.
The ARMSTRONG RUBBER COMPANY (Now Pirelli Armstrong Tire Company)
and Condere Corporation, d/b/a Fidelity Tire and Manufacturing
Company, Defendants-Appellees-Cross-Appellants.
Dec. 17, 1997.
Appeals from the United States District Court for the Southern
District of Mississippi.
Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendant Armstrong Rubber Company ("Armstrong"), now Pirelli
Armstrong Tire Company, operated a tire factory in Natchez,
Mississippi, from 1937 to 1987. The plaintiffs lived in the
neighborhood surrounding the factory and brought claims for
trespass, nuisance, strict liability, and negligence, alleging that
Armstrong blew carbon black onto their properties and introduced a
plume of petroleum naphtha into the soil and water under their
properties. The district court granted summary judgment for the
defendants on most of these claims but allowed a claim for trespass
to go to trial.
Plaintiffs appeal the summary judgment. We affirm the summary
judgment on the strict liability and negligence claims and on the
petroleum naphtha nuisance claims and reverse and remand on the air
and particulate trespass and nuisance claims and on the petroleum
naphtha trespass claim.
Armstrong cross-appeals, claiming that the district court
erred in refusing to grant summary judgment on the basis of res
judicata against plaintiff Laura Hardin. Armstrong also seeks a
new trial or judgment as a matter of law ("j.m.l.") on the ground
that the evidence presented was insufficient to sustain the jury
verdict. We reverse the denial of summary judgment against Laura
Hardin and the denial of the motion for new trial.
I.
A.
In the course of its operations, Armstrong routinely released
small amounts of a fine black powder known as "carbon black" into
the air. Several times during 1990 to 1992, the Mississippi
Department of Environmental Quality ("MDEQ") informed Armstrong
that its carbon black emissions were above regulatory limits and
that repairs were needed. According to the plaintiffs' expert real
estate appraiser, Douglass Upchurch, Armstrong's release of carbon
black has resulted in a layer of black powder on the plaintiffs'
residences, making them appear dingy, dirty, and in need of paint.
Armstrong claims that when its emissions of carbon black comply
with MDEQ regulations, the amount released is negligible.
Plaintiffs have produced no witnesses who saw carbon black
transmitted from the plant to the plaintiffs' property. The
defendants admit, however, that the plant emits a small amount of
carbon black, and MDEQ reports of substantial buildup of carbon
black on plant property strongly suggest that significant
additional amounts of carbon black were emitted in 1990 and 1992.
In addition, testimony of plant employees suggests that at other
times as well, emissions might have been higher than the
regulations allow.
The plaintiffs produced no expert testimony to prove that the
substance on their properties was carbon black. MDEQ examined the
properties and took samples of the black powder, but the record
does not establish whether tests were conducted or, if so, what
they revealed.1 There is evidence that the neighborhood was
industrial, containing, in addition to the tire plant, a pecan
processing plant, a metal processing yard with open fires, and
traffic created by large trucks.
The district court granted defendants' motion for summary
judgment on the air particulate claims, holding "that carbon black
is a chemical substance for which some expert testimony would be
required to prove that a given substance is carbon black ..." and
pointing out that the substance on the plaintiffs' property could
have come from another source.
B.
The plaintiffs also bring claims for nuisance and trespass
1
Memoranda from MDEQ employees state that two samples were
taken and delivered to a laboratory for testing but do not mention
the results of either of these samples. One of the samples was
taken by Ethyl Clark rather than by MDEQ employees. The collection
method used for the other sample is not revealed.
One earlier memorandum discusses the results of a sample
whose collection method and testing date is not revealed.
This memo states only that "[s]amples taken at Mrs. Clark's
house were not conclusion [sic ]." Several of the memoranda
mention that samples could not be taken because there were not
enough deposits, with homeowners mentioning that fallout had
been lighter than usual and that recent rains had reduced the
pollution.
resulting from the introduction of petroleum naphtha into the soil
and water beneath their properties. Before 1989, an underground
tank containing naphtha, a raw material similar to gasoline used in
Armstrong's manufacturing process, developed a leak. Armstrong
brought this problem to the attention of the MDEQ in 1989, after an
environmental survey by a potential buyer of the plant discovered
it, and MDEQ ordered Armstrong to remediate contamination in the
ground water affected by the leak.
Armstrong agreed to complete the remediation. The time for
cleanup is not known, in part because the planned remediation will
affect only the water, not the surrounding soil, and the
contaminated soil will contaminate the ground water. Expert
testimony by Russell Smith of the MDEQ suggests that it will take
at least ten years, perhaps twenty, to complete the remediation.
Even when the remediation is complete, the chemicals released by
the naphtha leak will not be completely removed.
The parties agree there is a slight chance that toxic elements
in the soil could "volatilize," moving either up to the surface or
down to the ground water and deeper soil. It is also possible that
contaminated ground water eventually will reach drinking water.
The contamination of the water and soil does not currently
affect the plaintiffs' use of their properties; the contamination
is below the surface of their land and cannot be seen, smelled, or
otherwise sensed. The plaintiffs offered no substantiation for
their claims that the contamination interferes with their use and
enjoyment of the property. The district court found baseless the
plaintiffs' claims that their health has been adversely affected,
and the plaintiffs do not contest this finding.
C.
In addition to their claims for interference with use and
enjoyment, the plaintiffs allege that the naphtha spill reduced the
market value of their homes. Plaintiffs' expert, Upchurch,
testified that after the naphtha spill, these homes had a negative
market value, whereas before the spill their values ranged from
$30,000 to $60,000.
On cross-examination, Upchurch was asked to explain his
methodology. He stated that the first phase of appraisal of
contaminated property is an estimation of the cost to clean up the
contamination, the cost of monitoring, and the availability of
financing, and that because these factors alone made the value of
the properties negative, he "just stopped there." Also on
cross-examination, Upchurch admitted that in his capacity as a
broker, he would not advise a particular plaintiff whose home had
originally been worth $60,000 to sell it for less than that,
especially if he had a wife and children to support.
The plaintiffs and their expert also emphasized the existence
of a requirement in Mississippi that homeowners disclose
contamination on their properties to potential buyers. Both of the
post-contamination buyers testified that, had the contamination
been disclosed as required by law, they would not have bought their
homes. Upchurch stated that potential buyers would be unable to
get a mortgage for the property, concluding from this fact that
there would be no market for the houses. He also suggested that,
in addition, the homes would suffer from a phenomenon known as
"market stigma."
In addition to cross-examining the plaintiffs' expert
appraiser, the defendants produced their own expert, Robert Haltom,
who testified that each of the houses had increased in value since
the naphtha leak. Haltom admitted on cross-examination, however,
that the defendants' attorneys had instructed him to disregard the
existence of contamination when drawing his conclusions, because
"that's what this case is about."
D.
This suit follows another proceeding related to the Armstrong
tire plant, Jackson v. The Armstrong Rubber Co., Civ. Ac. No. J90-
129(B) (S.D.Miss.) (unpublished), which closely resembled this case
and involved similarly situated plaintiffs and identical claims
based on the naphtha leak. In Jackson, the court dismissed all
claims by off-plume plaintiffs, allowing the claims of one on-plume
plaintiff, Laura Hardin, to go to the jury. On the eve of trial,
Hardin voluntarily dismissed her claim, and a final judgment
dismissing with prejudice was entered in 1993.
Freddie Hardin, who was not a party to the 1990 Jackson suit,
joined the instant suit, but died in 1994, and his wife, Laura
Hardin, sues on his behalf. Freddie and Laura owned their property
by a tenancy by the entirety. Freddie was fully aware of Laura's
participation in the Jackson suit and cooperated by discussing
details of the property with her expert appraiser (Upchurch, who
provided identical testimony regarding the property in this suit).
The defendants in the instant case unsuccessfully moved for summary
judgment against her on the ground of res judicata.
The jury decided for the plaintiffs on the naphtha trespass
claim. It found that each of the houses had decreased in value by
75% because of the contamination.
II.
A.
We review a summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir.1992). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED. R. CIV. P. 56(c). The
party seeking summary judgment carries the burden of demonstrating
that there is an absence of evidence to support the non-moving
party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). After a proper motion
for summary judgment is made, the non-movant must set forth
specific facts showing that there is a genuine issue for trial.
See Hanks, 953 F.2d at 997.
We begin our determination by consulting the applicable
substantive law to determine what facts and issues are material,
then review the evidence relating to those issues, viewing the
facts and inferences in the light most favorable to the non-movant.
See King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). If the
non-movant sets forth specific facts in support of allegations
essential to his claim, a genuine issue is presented. See Brothers
v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994).
B.
If the plaintiffs could prove that the substance on their
properties was carbon black, their case for causation would be
strong enough for submission to the jury. Without compelling
evidence from the defendants that the carbon black was more likely
to have come from another source, we would allow the jury to infer
causation from the closeness of the affected property to the
source.2 But because the plaintiffs have not produced such
evidence, their case is weak, and the district court concluded that
without expert testimony demonstrating that the substance was
carbon black, the case could not go to trial.
Whether the air particulates on the plaintiffs' property are
actually carbon black is, in itself, irrelevant. If the
particulates are some other substance, but the substance came from
the defendants and caused harm, the test for trespass is met, for
there is no requirement that the particulates be a regulated
substance such as carbon black.3 Therefore, the question is
whether the similarity of the substances may be considered by the
jury in lieu of expert testimony demonstrating that the substance
2
See Shutes v. Platte Chem. Co., 564 So. 2d 1382, 1384
(Miss.1990), in which the plaintiffs brought suit for nuisance and
trespass against the only producer of the chemical linuron in the
neighborhood and produced evidence of linuron damage to their
properties. The court stated that "crumbs on the floor around the
dining room table may be reasonably supposed to have fallen from
the table." Id.
3
See RESTATEMENT (SECOND) OF TORTS § 258-59, at 277-81 (1965)
(noting that one is subject to liability for trespass when he
intentionally causes "a thing" to enter land in the possession of
another and that trespass may be committed on, beneath, or above
the surface); Alabama Great S.R.R. Co. v. Broach, 238 Miss. 618,
119 So. 2d 923 (1960) (holding that introduction of dirt onto land
constitutes trespass).
on the homes is actually carbon black. Although the question is a
close one, we conclude that the jury must be allowed to decide this
material issue of fact.
In Cooper Tire & Rubber Co. v. Johnston, 234 Miss. 432, 106
So. 2d 889 (1958), a rug cleaner sued a tire plant for nuisance and
trespass arising from its emissions of carbon black. The
defendants admitted causation; the opinion does not tell us what
the defendant argued or what evidence the plaintiffs produced to
obtain this admission. It says only that the carbon
black-producing plant was located "not over 125 feet away" and that
the defendants "necessarily concede that the trial court was
warranted, on conflicting facts in finding that their plant
constituted a nuisance for which they were liable in damages." Id.
106 So.2d at 891.
In the instant case, the plaintiffs' evidence presumably could
have included expert testimony to the effect that the black powder
on their residences was the same substance being produced by the
tire plant. Instead, we have concessions by the defendants'
employees to the fact that carbon black was produced and, if enough
was produced with the wind blowing the right way, it probably would
land on the plaintiffs' property.
Without an explanation why obtaining such evidence would be
unduly costly or technologically infeasible, the plaintiffs'
failure to produce stronger evidence that the substance was carbon
black permits an inference that the plaintiffs have information to
suggest it is not carbon black. On the other hand, plaintiffs'
burden of proof at summary judgment should not require expert
testimony when observation of the available evidence might lead a
reasonable person to conclude that the two substances, which look,
smell and feel similar, are the same.
Unlike some substances, carbon black can be seen and touched.
If scientific testing were not possible,4 a jury could examine
evidence about the physical properties of each material to decide
whether the particulates on the plaintiffs' property,
hypothetically, were in fact "crumbs" from the "table" of the
defendants' plant. If, hypothetically, the plaintiffs offered
testimony that the defendant was using yellow spray paint in the
vicinity of their houses, and that their houses were now yellow, we
would not require expert testimony in order for the plaintiffs to
survive summary judgment. Instead, we would allow the plaintiffs
to decide whether they thought the jury needed proof that the
substance on the houses was yellow paint.
In concluding, from plaintiffs' failure to give scientific
proof that the substance was carbon black, that they surely must
have evidence that the substance was not carbon black, the district
court improperly construed conflicting evidence in favor of the
non-moving party. It is possible that the plaintiffs did not have
the particulates tested because it was too expensive, or that
carbon black is difficult to identify when combined with other
substances that doubtless touched plaintiffs' property. Although
there is a strong possibility that carbon black either is not
present or is not a significant cause of the plaintiffs' dirty
4
The record does not contain evidence about how easy it is to
identify carbon black positively through scientific tests.
homes, that inference must be drawn by the jury after a trial, not
by the district court on summary judgment, where all evidence must
be interpreted favorably to the non-movant.
III.
A.
Plaintiffs argue that the summary judgment on their nuisance
claims was improper, but they fail to explain how the existence of
the naphtha plume under their properties interferes with their use
and enjoyment of the properties. The summary judgment on the
nuisance claims based on the naphtha leak is therefore affirmed.
Because the district court did not consider whether the carbon
black emissions interfered with the plaintiffs' use and enjoyment
of their properties, the summary judgment with respect to the
carbon black nuisance is reversed, and the issue is remanded for
trial.
B.
Plaintiffs argue that "the same facts that establish the
viability of [their] claims for trespass and nuisance demonstrate"
that their claims for negligence and strict liability were
sufficient to withstand summary judgment. They aver that whether
the defendants acted reasonably was a question for the jury. The
district court correctly noted the plaintiffs' failure to state a
case on these issues.
Mississippi law requires participation in an ultrahazardous
activity before strict liability can be imposed for harm from
industrial operations. We have defined the concept of
"ultrahazardous activity" fairly narrowly.5 Plaintiffs offer no
cases or evidence to support their position that defendants engaged
in an ultrahazardous activity. Finding no error, we affirm the
summary judgment on this claim.
On the negligence claims, the plaintiffs failed to prove a
duty owed to them, let alone a breach of such a duty. A suit for
negligence in Mississippi requires that a duty exist and be
breached.6 The summary judgment on this issue is therefore
affirmed.
IV.
A.
Defendants also argue that their motion for j.m.l. should have
been granted on the ground that Upchurch's testimony was inadequate
to provide the basis for a jury verdict. They argue that the
verdict was not supported by the evidence, because the expert
testimony did not meet minimum standards.
We review the district court's decision de novo, applying the
same standard used in deciding the motion for judgment
notwithstanding the verdict, the substantial evidence standard of
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en
banc). If there is substantial evidence to support the verdict,
5
See Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409, 414
(5th Cir.1987) (holding that storage of large quantities of
anhydrous ammonia was not an ultrahazardous activity under
Mississippi law where substance was poisonous only if inhaled in
large concentrations and was commonly used in wide variety of
agricultural, industrial, and commercial applications).
6
People's Bank & Trust Co. v. Cermack & Container Eng'g Corp.,
658 So. 2d 1352, 1360 (Miss.1995) (citing May v. V.F.W. Post No.
2539, 577 So. 2d 372 (Miss.1991)).
the challenge to it must be denied. Id. at 374. "Substantial
evidence" means evidence of such quality and weight that reasonable
and fair-minded persons in the exercise of impartial judgment might
reach different conclusions; a mere scintilla of evidence is
insufficient. Id.; see also Maxey v. Freightliner Corp., 665 F.2d
1367, 1371 (5th Cir.1982).
B.
Defendants criticize the basis for Upchurch's expert
testimony. On cross-examination, he stated that he considered the
cost of cleanup in arriving at the negative value he attributed to
the plaintiffs' properties after the naphtha leak. The defendants
argue, inter alia, that because the testimony was based on an
incorrect assumption that the property owners would be required to
pay cleanup costs, it did not rest on a reliable foundation and was
not relevant to the after-contamination value of the properties.
Although Upchurch mentioned several factors that might lower
the value of the property even if the owners were not required to
pay cleanup costs, the numbers he suggested were based on the
erroneous assumption. Without those numbers, the jury was left
with nothing but testimony to the effect that buyers would have
difficulty getting financing and that the properties would suffer
from "market stigma."
The phenomenon of "market stigma" is a reduction in market
price caused by the public's fear of contaminated property, which
lingers even after contamination has been remediated. Whether
market stigma is a recoverable element of damages has been the
subject of considerable debate.
In a strongly analogous case, the Third Circuit has held that,
where a physical injury to land such as chemical contamination has
occurred, damages for diminution in a property's value caused by
market stigma may be recovered if the plaintiff can demonstrate
that repairing the damage will not restore the property to its
original market value. See In re Paoli R.R. Yard P.C.B. Litig., 35
F.3d 717, 796-98 (3d Cir.1994). That case, like this one, involved
chemical contamination of homeowners' properties, and remediation
that was expected to reduce the contamination to levels not
considered hazardous, but that would not eliminate the
contamination completely. Id. at 795. The district court
identified a tension between EPA standards—which suggested reducing
the risk of cancer to ten times below the risk expected after
remediation (from 1 in 100,000 to 1 in 1,000,000)—and FDA
standards, which allowed similar levels of the chemical in food
packaging, poultry, and animal feed.
The court held that this tension created a fact issue for the
jury to resolve—whether there was a continuing health risk that
could constitute "permanent injury," bringing the claim within the
scope of Pennsylvania's traditional permanent injury requirement
for diminution in value damages. Id. at 796. In the alternative,
the court stated that the stigma itself could be a permanent
injury, at least if some risk of further injury remained, where the
stigma stemmed from an initial physical injury. Id. at 798.
Unlike most courts considering the permanent/temporary injury
distinction, the court held that the diminution in value itself was
a permanent injury, rendering it unnecessary for plaintiffs to show
any permanent damage in the form of continuing health risks.
Several other courts, including the Mississippi Supreme Court,
have suggested that stigma damages might be allowed as part of the
diminution of value that may be recovered when a trespass or
nuisance of a permanent nature physically injures the property.
For instance, in Leaf River Forest Prods., Inc., 662 So. 2d 648, 664
(Miss.1995), the court held that "mere stigma, supported by tests
showing dioxin contamination no closer than eighty river miles
north of the alleged damage, is not sufficient evidence of
compensable injury."
The court quoted extensively from Berry v. Armstrong, 989 F.2d
822 (5th Cir.1993), which involved alleged dumping of toxic wastes
by the defendant in this case, Armstrong. Although Armstrong
dumped waste material from its plant at various sites in the
Natchez area, the plaintiffs could not demonstrate that this
dumping had resulted in the presence of toxic chemicals on their
property. Because the plaintiffs did not allege that the dumping
occurred directly on their property, they could not show physical
damage to it unless the waste disposal had resulted in hazardous
chemicals being introduced to their land and groundwater.
Upchurch, providing his expertise to the plaintiffs in that case as
well, testified that the public perception of the presence of
hazardous chemicals reduced the market value of the properties.
In Berry, we did not reject the plaintiffs' argument that a
decrease in market value from stigma was compensable, but we stated
that no Mississippi case "allows recovery for a decrease in
property value caused by a public perception without accompanying
physical harm to the property." Id. at 829.7 Several courts have
considered market stigma a relevant factor in determining the value
of property for eminent domain and bankruptcy purposes. In these
cases, the issue is reducing the damages for a taking or reducing
the value of property as collateral, but the same considerations
apply, particularly in the eminent domain context. All of these
cases have held that market stigma may reduce the value of
property.8
Because none of the Fifth Circuit or Mississippi cases
involved fact patterns actually meeting this requirement, we are
not bound to allow recovery for market stigma. We are convinced,
however, that Mississippi would allow recovery for diminution of
value from market stigma under these circumstances.
Mississippi, like the states that have decided this issue,
allows damages for diminution in value where permanent injury to
property has occurred.9 Mississippi's policy of granting a remedy
to property owners who have suffered an economic loss from a
neighbor's trespass or nuisance would be thwarted by a rule holding
that the plaintiffs' losses cannot be recovered. The requirements
7
See also Adams v. Star Enter., 51 F.3d 417, 423 (4th
Cir.1995) (applying Virginia law); Adkins v. Thomas Solvent Co.,
440 Mich. 293, 487 N.W.2d 715, 727 (1992); Santa Fe Partnership v.
ARCO Prods. Co., 46 Cal. App. 4th 967, 984, 54 Cal. Rptr. 2d 214 (Cal.
Ct.App.—2d Dist.1996) (no diminution in value where damages not
permanent; statute of limitations expired for claim of permanent
injury); FDIC v. Jackson-Shaw Partners No. 46 Ltd., 850 F. Supp.
839, 844 (N.D.Cal.1994) (same).
8
See, e.g., Tennessee v. Brandon, 898 S.W.2d 224, 227
(Tenn.Ct.App.1994); Florida Dept. of Transp. v. Finkelstein, 629
So. 2d 932, 934 (Fla. Ct.App.—4th Dist.1993).
9
See Phillips v. Davis Timber Co., 468 So. 2d 72, 79 (1985);
Bynum v. Mandrel Indus., 241 So. 2d 629, 634 (Miss.1970).
of permanent and physical injury to property ensure that this
remedy does not open the floodgates of litigation by every property
owner who believes that a neighbor's use will injure his property.
The requirements of permanent and physical injury are
satisfied in this case. The petroleum naphtha physically entered
the plaintiffs' properties and created a health hazard. Although
the contamination is being remediated, the duration of the
remediation is unknown, and the remediation will not completely
remove the contamination. The MDEQ believes that remediation
eventually will reduce the contamination to "safe" levels, but it
has stated that it will not certify the properties' safety to
potential purchasers, even after the remediation is completed.
C.
Nevertheless, we agree that plaintiffs failed to produce
evidence sufficient to sustain the verdict. Convincing evidence of
market stigma affecting the sale price and availability of
financing for the properties may support damages for diminution in
the value of permanently injured property. In this case, however,
the plaintiffs' expert provided no estimate of the amount by which
the value of the homes was reduced. His estimate of "after" value
did not differentiate between the diminution resulting from the
non-existent cost of cleanup, and the diminution caused by market
stigma. Therefore, the jury's selection of a 75% reduction in
value rested on no evidentiary foundation. Diminution of value
damages, like all damages, must be proven with reasonable certainty
in Mississippi.10
Despite this, j.m.l. is inappropriate where, as here, some
damage has been proven, and the plaintiffs' failure to offer
sufficiently concrete testimony regarding damages was not entirely
their fault. Although the defendants' primary criticism of
Upchurch's testimony goes to its admissibility, they did not object
to the testimony when it was given. Instead, they waited until
their motion for j.m.l. to raise the issue. Had the defendants
objected to the testimony's admissibility at trial, plaintiffs
could have offered expert testimony based on the valid factors of
market stigma, without the erroneous assumption regarding cost of
cleanup. Such testimony could have supported a jury verdict.
As plaintiffs point out, the defendants never objected at
trial to the qualifications of the witness or the admissibility of
his testimony. Defendants argue that this is beside the point,
because they do not object to the admissibility of the testimony,
but to its qualification as the basis for a jury verdict.
Defendants start out by characterizing their argument as one based
on sufficiency of the evidence: "The movant does not have to
establish that there is no evidence supporting the verdict, "but
whether there is evidence upon which the jury properly could find
a verdict for that party' " (citing 9A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 2524, at 249 (2d ed.1995)).
Defendants also indirectly rely upon FED. R. EVID. 703 by
10
See, e.g., City of Jackson v. Keane, 502 So. 2d 1185, 1187
(Miss.1987); Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175
So. 2d 471, 475 (1965); Mississippi State Highway Comm'n v. Engell,
251 Miss. 855, 171 So. 2d 860, 862-63 (1965).
citing Berry, 989 F.2d at 827, which used rule 703 as the basis for
excluding expert testimony in evaluating the evidence on motion for
summary judgment. Defendants try to avoid using the term
"inadmissible," but their objections to Upchurch's testimony (aside
from the district court's irrelevant characterization of it as
"ridiculous" and "unbelievable") are admissibility objections: The
testimony "should be rejected since it does not rest on a reliable
foundation and it is not relevant to the task at hand. It is based
on speculation and conjecture." They then reprint excerpts of
cross-examination that demonstrate that Upchurch based his opinion
substantially on an incorrect assumption that the homeowners would
be responsible for cleanup costs and monitoring, and otherwise
neglected to follow the standard procedures in his profession.
Had the defendants objected to the admissibility of this
evidence, their case would be strong. The record shows that
defendants have admitted responsibility for all cleanup costs, that
monitoring has been conducted by the MDEQ and Armstrong, not by
homeowners, and that the district court considered costs of cleanup
irrelevant to the question of damages. Thus, the probative value
of Upchurch's "after" value was quite limited:
Certainly nothing in Rule 703 requires a court to admit an
opinion based on facts that are indisputably wrong. Even if
rule 703 will not require the exclusion of such an unfounded
opinion, general principles of relevance will. In other
words, an opinion based totally on incorrect facts will not
speak to the case at hand and hence will be irrelevant.
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114 (5th
Cir.1991) (en banc) (overruled on other grounds, Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 n. 5, 113 S. Ct. 2786,
2793 n. 5, 125 L. Ed. 2d 469 (1993)).11 The defendants failed to make
such an objection, however, and the testimony was admitted.
Because the defendants' claim that Upchurch's testimony did
not meet rule 703's requirements is an admissibility objection, it
should have been raised at trial. Defendants' counsel were present
at the in limine hearing at which plaintiffs' counsel told the
court that their expert would have to consider the cost of cleanup
in performing his appraisal, so they had notice and time to prepare
their objection.
Even if the defendants were not aware of the bases for the
opinion before Upchurch's testified, they could have asked to have
the testimony stricken from the record once its bases were revealed
at trial. Instead, the defendants skillfully cross-examined
Upchurch and hoped the jury would respond negatively to his
"ridiculous" testimony. Defendants may not quietly let the
inadmissible testimony enter the record, perhaps hoping it will
work in their favor, and then obtain a j.m.l. on the basis of an
untimely admissibility motion cloaked in the language of
"sufficiency."
Defendants cite no case involving expert testimony failing
rule 703's requirements in which a court granted j.m.l. without
excluding the expert testimony (and hence implicitly finding it
inadmissible). Rule 703's requirements are usually addressed at
the summary judgment stage of a proceeding or on a motion to
11
The same objection could and should have been made to the
defendants' expert appraiser, who presented testimony regarding
"before" and "after" values of plaintiffs' properties without
considering the effect of contamination.
exclude evidence at trial.12
Once evidence—even if not admissible—is presented at trial,
it must be considered for purposes of a j.m.l. if the affected
party did not object properly. The only panel in this circuit to
review such a motion after the inclusion of inadmissible evidence
held that the inadmissible evidence must be considered, stating
that "[i]t was incumbent on the trial court to consider all of the
evidence before the jury, as it was in fact presented to the
jury...." Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215,
218 (5th Cir.1983). There, the proponents of the judgment objected
to the evidence at trial, but the evidence was later revealed to be
inadmissible on a different ground not mentioned in the party's
original objection.
Here, defendants never objected to introduction of Upchurch's
testimony on any ground. Therefore, the evidence must be
considered in weighing the evidence on motion for j.m.l.
Given that the jury probably based its verdict on testimony
that was not only inadmissible, but also erroneous, it was error to
let the verdict stand. The appropriate remedy under these
circumstances is a new trial, however, and not j.m.l. The court
has discretion to order a new trial rather than judgment as a
matter of law when the defect in the nonmoving party’s proof might
12
See, e.g., Berry, 989 F.2d at 824; Orthopedic & Sports
Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224-25 (5th
Cir.1991) (rule 703 applied to evidence at summary judgment);
Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C.Cir.1996) (same);
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1329 (5th Cir.1996)
(limiting testimony of witness at trial to testimony with reliable
foundation).
be remedied at a second trial.13
Defendants' failure to make a timely objection deprived
plaintiffs of effective notice that their expert's testimony did
not meet rule 703's requirements. Had the defendants initially
objected to the testimony of Upchurch on the basis of his erroneous
assumptions, the plaintiffs could have asked him or another expert
to focus solely on the market stigma aspect of damages. Such
testimony would have been admissible and possibly sufficient to
sustain a jury verdict. Accordingly, we remand for proceedings in
which the plaintiffs may attempt to prove market stigma damages.
V.
A.
Prior to trial, the defendants filed a motion for partial
summary judgment seeking the dismissal of the Hardin claims based
on res judicata. The district court carried the motion with the
case and denied it after the close of plaintiffs' case in chief,
holding that because Freddie and Laura Hardin owned their home as
tenants by the entirety, Laura had no authority to bring the
Jackson suit without joining Freddie, so the judgment of dismissal
in that suit was void.
The cases cited by the district court are not relevant. One,
Ayers v. Petro, 417 So. 2d 912 (Miss.1982), dealt with a woman's
attempt to buy, at a foreclosure sale, the home she had previously
owned, as joint tenant with right of survivorship, with her former
13
See Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801,
809, 69 S. Ct. 1326, 1330, 93 L. Ed. 1704 (1949); CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 2538 AT 357-
59 (2d ed. 1995)
husband before their divorce. The woman, who remained a joint
cotenant with her husband in the property, was not permitted to
purchase the property for her individual benefit. Id. at 916. The
second, In re Estate of Childress, 588 So. 2d 192 (Miss.1991),
involved the question whether the signature of both parties is
required to sever a tenancy by the entirety.
The defendants urge that we should look, instead, to the many
cases holding that a person need not have title to real property in
order to sue for trespass. See, e.g., Ingram-Day Lumber Co. v.
Cuevas, 104 Miss. 32, 61 So. 4, 5 (1913); 75 AM.JUR.2D Trespass §
38. As long as the plaintiff was in actual possession of the land,
she need not have had complete title to the property in order to
maintain a valid suit.
Furthermore, as defendants also point out, the district
court's fear that a rule permitting one party to bring suit would
allow double recovery is unfounded. As Ayers demonstrates, any
recovery that one cotenant by the entirety obtains redounds to the
benefit of the other. This means the cotenant is in privity with
the suitor, and would be barred from bringing a subsequent suit.
David v. Nemerofsky, 41 A.2d 838 (D.C.1945).
Although no Mississippi case has considered this proposition,
we find it highly unlikely that Mississippi would deny the privity
of tenants by the entirety, thus allowing two suits for an injury
to the same property. Such a result would be inconsistent with
principles followed throughout the country, and would result in
grave injustice should a tenant by the entirety be abandoned by his
cotenant.
In such a case, the statute of limitations might expire before
the cotenant could be joined in the suit or the tenancy by the
entirety abolished. Furthermore, Mississippi law establishes that
complete ownership is not required in a trespass case.
Accordingly, the Jackson dismissal was not void merely because
Freddie Hardin did not participate in the suit.
B.
Because the Jackson result stands, we must decide which
claims, if any, have already been decided. Federal law applies to
the res judicata effect of a prior federal court judgment, and that
law requires (1) identical parties, (2) jurisdiction for the prior
judgment, (3) a final judgment on the merits, and (4) the same
cause of action. Russell v. SunAmerica Sec., Inc., 962 F.2d 1169
(5th Cir.1992); Stovall v. Price Waterhouse, 652 F.2d 537 (5th
Cir. Unit A Aug.1981).
The only questionable requirements here are identical parties
and same cause of action. Parties in privity count as identical
parties for federal res judicata purposes.14 Furthermore, the "same
cause of action" test is easily met on the naphtha claims, because
those claims were identical in the two suits. The same expert
appraiser was used, the same before and after property values were
alleged, and the same relief was sought. Thus, we reverse the
denial of summary judgment and render partial summary judgment for
the defendants on the Hardin naphtha claims.
14
See Russell, 962 F.2d at 1173; United States v. Shanbaum,
10 F.3d 305, 310 (5th Cir.1994); Gulf Island-IV, Inc. v. Blue
Streak-Gulf, 24 F.3d 743, 746 (5th Cir.1994), cert. denied, 513
U.S. 1155, 115 S. Ct. 1112, 130 L. Ed. 2d 1076 (1995).
To the extent that Freddie Hardin alleged trespass or nuisance
claims based on the carbon black emissions, however, those claims
should survive summary judgment, as they were not brought in the
original action and did not arise out of the same operative facts.
With respect to these claims, we affirm the denial of summary
judgment.
VI.
In accordance with the foregoing, the summary judgment for
defendants on the trespass and nuisance claims is REVERSED. The
denial of the motion for new trial is REVERSED. We REMAND for a
trial on the air and particulate trespass and nuisance claims and
for a new trial on the naphtha trespass claim. The summary
judgment on the strict liability and negligence claims and on the
petroleum naphtha trespass claim is AFFIRMED. The denial of
summary judgment on the Hardin claims is REVERSED in part, and
summary judgment is RENDERED on the Hardin naphtha trespass claims.