Brandi Herrington v. Leaf River Forest Products, Inc., A Foreign

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CA-00976-SCT
BRANDI HERRINGTON
v.
LEAF RIVER FOREST PRODUCTS, INC., A FOREIGN CORPORATION; WARREN
RICHARDSON, AN INDIVIDUAL; ACKER SMITH, AN INDIVIDUAL; LEAF RIVER
CORPORATION, A FOREIGN CORPORATION; GREAT NORTHERN NEKOOSA
CORPORATION, A FOREIGN CORPORATION; AND GEORGIA PACIFIC
CORPORATION, A FOREIGN CORPORATION, SUCCESSOR OF GREAT NORTHERN
NEKOOSA CORPORATION
DATE OF JUDGMENT: 07/29/96
TRIAL JUDGE: HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN M. DEAKLE
WILLIAM R. COUCH
PATRICK W. PENDLEY
CURTIS R. HUSSEY
LARRY O. NORRIS
ATTORNEYS FOR APPELLEES: W. WAYNE DRINKWATER, JR.
MARGARET STEWART OERTLING
JOE SAM OWEN
JAMES H. HEIDELBERG
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 2/25/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 4/12/99
BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. Appellant Brandi Herrington brought a civil action against Leaf River Forest Products, et. al. in the
Circuit Court of Jones County, Mississippi. After recusal of the trial judge, the action was transferred to
Jackson County. Herrington's action was one of hundreds brought against Leaf River Forest Products
complaining that its pulp mill discharged 2,3,7,8-tetra-chlorodibenzo-p-dioxin ("dioxin") into the Leaf River
in Perry County. The trial court granted a motion for summary judgment in favor of Leaf River Forest
Products and stated that those plaintiffs with physical injury, including Herrington, had claims which lacked
legally sufficient evidence to show their exposure or the mill's release of dioxin into the Leaf River. The court
stated, ". . .such Plaintiffs have no medical or scientific evidence that their diseases were caused by dioxins
or other chemicals of the kind discharged by the Leaf River Mill." From the lower court's grant of summary
judgment, Brandi Herrington appeals assigning the following as error:
I. WHETHER THE TRIAL COURT ERRED IN DENYING HERRINGTON'S MOTION
FOR A STAY OR IN THE ALTERNATIVE AN EXTENSION BEFORE RULING ON
THE SUMMARY JUDGMENT MOTION.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF LEAF RIVER FOREST PRODUCTS, INC.
STATEMENT OF THE FACTS
¶2. Brandi Herrington lived in her father's cabin and later in her grandmother's cabin, both on the Leaf River
near New Augusta, Mississippi, from 1983 through 1989. During this period, Herrington alleges Leaf River
Forest Products, Inc. released dioxin into the Leaf River. Both cabins were approximately one and a half
river distance miles downstream from the Leaf River pulp mill. Herrington's father often fished in the river,
and she frequently ate the fish he caught. When deposed, however, Herrington's father stated that after the
mill started up and the water became smelly, he went above the mill to fish and never fished below the mill
again. Any contaminants from fish caught above the mill cannot be attributed to Leaf River Forest Products.
However, Herrington says she also remembers the river flooding the land around the cabins and remembers
water sometimes entering the cabins.
¶3. The family moved to Hattiesburg, Mississippi, in 1989. In 1990, Herrington moved to South Carolina,
and she was diagnosed with Hodgkin's disease in 1991. She underwent five surgeries, and in March 1994,
doctors determined she was cured. Herrington believes her exposure to fish and water from the Leaf River
caused her to develop Hodgkin's disease. From the lower court's summary disposition of her action against
Leaf River Forest Products, Inc. et. al., she appeals.
STANDARD OF REVIEW
¶4. When reviewing the lower court's decision to grant summary judgment, we employ a de novo standard.
Moore ex rel. Benton County v. Renick, 626 So. 2d 148, 151 (Miss. 1993). The argument underlying a
request for summary judgment is that there are no issues of material fact. Brown v. Credit Center, Inc.,
444 So. 2d 358, 362 (Miss. 1983). Before summary judgment is granted, the lower court must determine if
there are material factual questions in issue over which reasonable jurors could disagree. Russell v. Orr,
700 So. 2d 619, 624 (Miss. 1997) (citing Carpenter v. Nobile, 620 So. 2d 961, 965 (Miss. 1993)).
The non-moving party is given the benefit of every reasonable doubt which arises as to whether there is an
issue of material fact. Brown, 444 So. 2d at 362 . On review of a grant of summary judgment, our only
determination is whether there are material issues of fact to be tried. Mink v. Andrew Jackson Casualty
Insurance Co., 537 So. 2d 431, 433 (Miss. 1988).
I. WHETHER THE TRIAL COURT ERRED IN DENYING HERRINGTON'S MOTION
FOR A STAY OR IN THE ALTERNATIVE AN EXTENSION BEFORE RULING ON
THE SUMMARY JUDGMENT MOTION.
¶5. Leaf River Forest Products, Inc. included in its motion and renewed motion for summary judgment the
affidavit of Dr. Joseph Rodricks, an expert in dioxin analysis, two affidavits of Warren Richardson, the pulp
mill manager, and the affidavit of Professor Chirstopher Rappe, head of the Institute for Environmental
Chemistry in Umea, Sweden. Herrington contends she should have been given an extension or stay in order
to investigate the validity of Dr. Christopher Rappe's affidavit and to depose Dr. Rappe. Leaf River Forest
Products contends summary judgment was proper even without the affidavit of Dr. Rappe. We agree with
Leaf River.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF LEAF RIVER FOREST PRODUCTS, INC.
A. Burden of Proof
¶6. Leaf River relies on our prior decisions involving its pulp mill and contends Herrington was required to
undergo blood tests to establish causation. In Beech v. Leaf River Forest Products, Inc., 691 So. 2d
446, 451(Miss. 1997), we held: ". . . the plaintiffs' failure to produce any proof through blood tests or other
medical evidence was fatal to their claims for mental and emotional distress and fear of future disease."
Herrington contends this case is one of first impression since the facts are distinct from prior cases involving
Leaf River Forest Products. Because Herrington's theory of recovery is negligence and not emotional
distress, nuisance, or trespass, this factual distinction is readily apparent.
¶7. In Leaf River Forest Products, Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995), we dealt with
infliction of emotional distress and nuisance claims. We dealt with nuisance and trespass claims in Leaf
River Forest Products, Inc. v. Simmons, 697 So. 2d 1083 (Miss. 1996). In Beech, we were not called
on to deal with the negligence claim. 691 So. 2d at 446. In Anglado v. Leaf River Forest Products,
Inc., 716 So. 2d 543 (Miss. 1998), we discussed trespass and nuisance. Therefore, we must address the
burden of proof required to withstand summary judgment when the theory of recovery is negligence and the
damages asserted are physical injuries.
¶8. Citing our prior holdings in slip and fall cases and the language of the Fifth Circuit Court of Appeals in
asbestos litigation, Herrington contends circumstantial evidence is sufficient to establish causation.
Circumstantial evidence consists of "evidence of a fact, or a set of facts, from which the existence of another
fact may reasonably be inferred." Hardy v. K Mart Corp., 669 So. 2d 34, 38 (Miss. 1996)(quoting
Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 585, 156 So. 2d 734, 736 (1963)).
However, the circumstantial evidence must be such that it creates a legitimate inference that places it beyond
conjecture. Hardy, 669 So. 2d at 38.
¶9. In 1934, we addressed circumstantial evidence and toxic contamination in another case involving the
Leaf River and a plant which produced masonite boards and released effluent into the river. Masonite
Corp. v. Hill, 170 Miss. 158, 154 So. 295 (1934). In that case, we observed :
. . .as to inferences deduced from the facts, it is not the unqualified rule that an inference may not be
based upon another inference. Numerous cases of circumstantial evidence found in our books, and
many trials in the everyday experience of our bench and bar, disclose that inference upon inference is
availed and is enforced.
170 Miss. at 166, 154 So. at 298 (citations omitted). However, we also noted:
[W]here a party, who has the burden of proof, has the power to produce evidence of a more explicit,
direct, and satisfactory character than that which he does introduce and relies on, he must introduce
that more explicit, direct, and satisfactory proof, or else suffer the presumption that, if the more
satisfactory evidence had been given, it would have been detrimental to him and would have laid open
deficiencies in, and objections to, his case, which the more obscure and uncertain evidence did not
disclose.
170 Miss. at 167, 154 So. at 298 (citations omitted).
¶10. We have also held:
On the issue of the fact of causation, as on other issues essential to the cause of action for negligence,
the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was
a cause in fact of the result. A mere possibility of such causation is not enough . . . .
Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987)(quoting W. Keeton, Prosser & Keeton on
Torts, § 41 (5th ed. 1984)).
¶11. Herrington relies heavily on a United States Court of Federal Claims case, Land v. United States,
37 Fed. Cl. 231 (1997), discussing circumstantial evidence and toxic exposure. Herrington construes the
following language in that opinion in her favor:
Thus, whether plaintiffs chose to prove their case by direct evidence or by circumstantial evidence,
plaintiffs still have the burden to prove causation. . . . Plaintiffs, however, did not present any
circumstantial evidence showing that their alleged illnesses were consistent with the symptoms of
poisoning by either DIMP, mustard gas, nerve gas, pesticides, heribicides, elemental mercury, or any
other chemical found at the Arsenal.
Land, 37 Fed. Cl. at 236. Herrington asserts the testimony of Dr. Hayes, her oncologist, satisfied the
requirement missing in Land and was sufficient evidence of causation to defeat summary judgment here.
¶12. Herrington also cites the Fifth Circuit decision which set the standard of proof for products liability and
asbestos claims. In asbestos cases, the causation test adopted by most jurisdictions was the "frequency-
regularity-proximity" test. Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991).This test,
used with products liability cases involving asbestos, was applied when plaintiffs had established or
defendants had conceded that asbestos was present in the areas where the plaintiffs worked or lived. Id.
Herrington's evidence is insufficient to show there were abnormally high levels of dioxin in the Leaf River
near her family's cabin. Therefore, this standard is of no use in deciding the validity of Herrington's claim.
B. Herrington's Proof
¶13. Herrington's proof consists of the testimony of Dr. Hayes, her pediatric oncologist, who relied on
literature on dioxin contamination, and Herrington's testimony that she was exposed to water that came
down the Leaf River from the mill. Herrington also relies on the deposition of Dr. James Pinson who is
associated with the American Laboratories and Research Services group whose tests purported to show
Leaf River placed dioxin into the river. We find no evidence in the deposition of Dr. Pinson to support the
conclusion that there was an abnormally high level of dioxin released into the river. Dr. Pinson's evaluation is
inconclusive and deals mostly with coloration of the water.
¶14. Herrington presents the court with no scientifically verifiable evidence that there was dioxin in the river
near her cabin or in her body although she no doubt knew she could undergo tests to support her claim. The
Ferguson and Simmons cases, on which the lower court waited to begin a summary judgment hearing in
Herrington's case, both clearly identified the need for testing and scientific proof in similar contamination
actions. Ferguson, 662 So. 2d at 657; Simmons, 697 So. 2d at 1085 ("Simmons, like Ferguson,
presented no evidence of dioxin tests conducted on his property or his person"). Even in her reply brief,
Herrington states that if we find her evidence insufficient, we should remand to give her a chance to produce
such direct evidence. Herrington had an obligation to present this type of evidence before the hearing on the
summary judgment motion since it was readily available. Since she did not, we must presume it would have
been detrimental to her case. See Hill, 154 So. at 298.
¶15. She also fails to present any evidence that even if dioxin in fact caused her Hodgkin's disease, any
dioxin present came from the mill owned by Leaf River Forest Products. She simply states she was
exposed to fish in the river downstream from the mill in contradiction to her father's testimony, states her
belief that there was dioxin in the river from the plant, and states she was diagnosed and cured of Hodgkin's
disease. We have repeatedly held post hoc ergo propter hoc (after this consequently by reason of this) is a
misplaced argument in modern tort law. Western Geophysical Co. v. Martin, 253 Miss. 14, 174 So. 2d
706, 716 (Miss. 1965); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 497, 186 So. 625, 627 (1939)
. "It is not enough that negligence of one person and injury to another coexisted, but the injury must have
been caused by the negligence." Wilkins, 184 Miss. at 497, 186 So. at 627. Further, Herrington has
wholly failed to show negligence of Leaf River or injury at the time of the alleged negligence.
¶16. The testimony of Dr. Hayes, Herrington's pediatric oncologist, is not supported by substantial
evidence, and the trial judge correctly ruled it was insufficient to show causation. As a basis for his
testimony, Dr. Hayes identifies literature he has reviewed. He suggests the literature shows a correlation
between dioxin exposure and cancers of the lymphnoid system. We have held, "Only sworn denials
providing a credible basis in evidence will suffice to create an issue of fact." Strantz v. Pinion, 652 So. 2d
738, 742 (Miss. 1995)(citing Brown, 444 So. 2d at 364.) Allegations without "detailed and precise facts"
will not prevent summary judgment. Strantz, 652 So. 2d at 742 (citing Crystal Springs Ins. Agency,
Inc. v. Commercial Union Ins. Co., 554 So. 2d 884, 885 (Miss. 1989)). The testimony offered by Dr.
Hayes fails to give any detailed or specific facts and gives no credible basis in evidence. He merely
speculates from reading journal articles about other patients.
¶17. Dr. Hayes testified there was a correlation between dioxin exposure and lymphoid cancer based on his
literature review. However, his testimony fails to address the critical link, proof of dioxin exposure, with
anything more than speculation. Therefore, the trial court was correct in finding his testimony insufficient to
show causation.
¶18. Herrington suggests that upon finding her evidence insufficient, we should remand for blood tests
which would determine whether there is any dioxin in her body. While blood tests are not necessarily
required to meet the burden of proof in every case, these tests would have helped Herrington carry her
burden of proof. Herrington refused to undergo and introduce these tests done at her own peril.
¶19. Herrington was required to bring any information she could attain to the court's attention prior to the
summary judgment hearing. We presume any evidence she failed to present was detrimental to her case.
The time when Herrington could have submitted to blood tests or conducted tests on the river to support
her claim is past. As we have stated before, the hearing on a summary judgment motion is the flashpoint
when the plaintiff's proof is evaluated. Brewton v. Reichhold Chemicals, Inc., 707 So. 2d 618, 620
(Miss. 1998). Since Herrington failed to provide the lower court with sufficient evidence to support her
claim at the hearing, there were no factual questions in issue over which reasonable jurors could disagree,
and the motion was properly granted. No continuance was warranted since summary judgment was
appropriate even without the affidavit of Dr. Rappe. Therefore, we find no error in the Jackson County
Circuit Court's grant of summary judgment.
CONCLUSION
¶20. We fully recognize a party's right to a common law negligence action against any or all actors including
entities such as Leaf River Forest Products. However, as the trial court stated in its order granting summary
judgment, "[Herrington has] no medical or scientific evidence that [her] diseases were caused by dioxins or
other chemicals of the kind discharged by the Leaf River Mill." Herrington failed to carry her burden of
proof. The failure of Herrington's evidence leaves no questions of material fact to be decided by a jury.
Therefore, the grant of summary judgment by the Jackson County Circuit Court was proper and is affirmed.
¶21. AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.