Anglado v. Leaf River Forest Products, Inc.
| Decision Date | 04 June 1998 |
| Docket Number | No. 96-CA-00595-SCT,96-CA-00595-SCT |
| Citation | 716 So.2d 543 |
| Parties | George ANGLADO, Jr., Gloria Anglado, James E. Bailey, Jr., Billie Jean Bailey, Emmett B. Bonewitz, Martha L. Bonewitz, Henry Davis, Evelyn Davis, Catherine Suzanne Drummond, John R. Fayard, Jr., John R. Fayard, Sr., Alice Ferrill, Harl Hicks, Bert D.J. Landry, Boyce Landry, Doris Landry, Mona Lisa Landry, Jerry Lee, William F. Mcdonnell, Jr., William Moore, Lula Moore, Joyce Muse, Andrew J. Overmeyer, Bernice B. Overmeyer, Carl Prehoda, Linda Prehoda, Robert G. Randolph, Joann T. Randolph, Francis W. Toon, Norma K. Toon, Barney J. Varnado, Max T. Walters, Sr., Brenda L. Walters, David Adrian Warren, and Catherine Randell West v. LEAF RIVER FOREST PRODUCTS, INC., Leaf River Corporation, Great Northern Nekoosa Corporation, Georgia-Pacific Corporation, Warren Richardson and Acker S. Smith. |
| Court | Mississippi Supreme Court |
Robert H. Tyler, Biloxi, John I. Donaldson, Madison, for Appellants.
James H. Heidelberg, Colingo Williams Heidelberg Steinberger & McElhaney, Pascagoula, W. Wayne Drinkwater, Jr., Laura L. Gibbes, Lake Tindall & Thackston, Jackson, Joe Sam Owen, Owen & Galloway, Gulfport, for Appellees.
En Banc.
BANKS, Justice, for the Court:
¶1 The defendants in the case below were granted judgment on the pleadings and summary judgment by the circuit court. The plaintiffs appeal the summary judgment portion of that ruling. We conclude that a supporting affidavit which was not submitted with the defendants' first summary judgment motion was nevertheless properly submitted in their second motion. Moreover, in order to establish a claim for common law trespass or nuisance, the plaintiffs must present sufficient evidence not only that their properties were exposed to chemicals but also that those chemicals came from the defendants' pulp mill. Because they failed to show evidence meeting this burden, we affirm the grant of summary judgment.
¶2 A joint Complaint was filed in this tort action in the First Judicial District of the Circuit Court of Harrison County, Mississippi, on July 23, 1992. The plaintiffs are thirty-five riparian owners of twenty-three parcels of land that abut or adjoin Poticaw Bayou and/or the West Pascagoula River in Jackson County, Mississippi (Anglado Plaintiffs). The named defendants are Leaf River Forest Products (LRFP), Leaf River Corporation (LRC), Great Northern Nekoosa Corporation (GNNC), Georgia-Pacific Corporation (Georgia-Pacific), Warren Richardson and Acker Smith (all defendants collectively referred to as the "Leaf River Defendants"). 1 The Leaf River Defendants filed a joint Answer on August 26, 1992. Since 1984, LRFP has operated a pulp mill on the Leaf River near New Augusta in Perry County, Mississippi, approximately one hundred river miles upstream from the Anglado Plaintiffs' properties. The mill processes timber into market pulp and discharges treated wastewater, known as "effluent," into the Leaf River pursuant to a permit issued by the Mississippi Department of Environmental Quality (DEQ). 2 ¶p 3 In their initial joint Complaint, the Anglado Plaintiffs alleged that they and their properties were exposed to 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) and other chemicals which were discharged by the mill into the Leaf River. None of the plaintiffs had been diagnosed with any physical disease or medically cognizable mental illness. Nevertheless, they sought recovery for increased risk of future disease, for emotional distress arising from a fear of future disease, and for medical monitoring. The plaintiffs also sought recovery for diminished property values, for loss of use and enjoyment of their properties, and fraud. They also made claims for punitive damages.
¶4 On December 21, 1993, the Leaf River Defendants filed two separate dispositive motions. One of the motions sought judgment on the pleadings, or in the alternative for summary judgment, on the plaintiffs' claims for possible future disease, medical monitoring and emotional distress based on fear of disease. The other motion sought summary judgment based on the plaintiffs' lack of competent evidence of exposure. The primary basis of this motion was that the Anglado Plaintiffs could not maintain their claims without objective proof that their persons or properties had been exposed to TCDD. Since no such proof of exposure existed, the defendants' asserted that they were entitled to summary judgment. 3 A hearing on the defendants' motions was scheduled for February 14, 1994.
¶5 On February 1, 1994, the Anglado Plaintiffs were granted a continuance of the hearing on the defendants' motions. The plaintiffs then engaged Athena Technology, Inc. to collect and analyze sediment samples from Poticaw Bayou and the Pascagoula River. Athena Technology, in turn, retained Triangle Laboratories of RTP, Inc. to conduct the analysis of the samples to determine the presence of dioxin. The test results of these sediment analyses were submitted as an exhibit to the Plaintiffs' Opposition to Defendants' Motions for Summary Judgment. The plaintiffs also submitted the affidavit of Dr. Arthur Hume, who reviewed the test results. Dr. Hume testified that the sample sediments contained varying levels of dioxin, including TCDD, and stated that "use and enjoyment of the Plaintiffs' properties and the River by any of the Plaintiffs would result in some level of exposure to dioxin." 4
¶6 On March 23, 1994, approximately two weeks after the plaintiffs provided the test results and affidavits in opposition to the defendants' motions for summary judgment, the Leaf River Defendants served upon plaintiffs' counsel their Reply Brief. Attached to this brief were two new affidavits executed by Christoffer Rappe and Yves G. Tondeur. 5 Dr. Rappe concluded that the "low levels" of dioxins identified in the plaintiffs' soil samples are levels that one would expect to find as background levels in soil in a rural area along a river such as the Pascagoula.
¶7 As an expert on dioxin "fingerprinting" or source identification, Dr. Rappe also testified as to the source of the dioxin in the Anglado Plaintiffs' soil samples. Based on his study of the effluent data from the mill, the plaintiffs' test results and underlying data, and the distance of the plaintiffs' properties from the mill, Dr. Rappe concluded that "the Leaf River Mill is not the source of the low levels of dioxins and furans found in Plaintiffs' soil samples." Dr. Tondeur, Vice-President of Triangle Laboratories, also stated in his affidavit that "it is more likely than not that the Mill is not the source of the dioxins and furans in plaintiffs' samples." (emphasis in original).
¶8 On August 15, 1994, oral arguments at last were heard on the defendants' dispositive motions as well as a motion by the plaintiffs' to strike the Tondeur affidavit. At the conclusion of the hearing all motions were taken under advisement by the court. On December 29, 1994, the plaintiffs filed a motion to submit additional evidence in opposition to the defendants' pending dispositive motions. This motion sought leave to file additional affidavits contradicting the affidavits of Rappe and Tondeur. This motion was never ruled upon. Instead, on December 30, 1994, the presiding judge entered an Order denying the Leaf River Defendants' motions for summary judgment. 6
¶9 On October 19, 1995, the Mississippi Supreme Court decided Leaf River Forest Products v. Ferguson, 662 So.2d 648 (Miss.1995), and on November 17, 1995, the Leaf River Defendants filed their Second Motion of Defendants for Judgment on the Pleadings, or, in the Alternative, Summary Judgment. This motion stated that "with the exception of several recent cases to which defendants would like to draw the Court's attention, this Motion rests on the same arguments and authorities as the previous motions." The defendants included with their second summary judgment motion the affidavits of Rappe and Tondeur.
¶10 After obtaining an extension of time, the Anglado Plaintiffs filed their response on December 15, 1995. The plaintiffs conceded that the decision in Ferguson foreclosed recovery for their claims for increased risk of future disease, emotional distress arising from a fear of future disease, and medical monitoring. The plaintiffs also conceded that Ferguson foreclosed recovery of punitive damages. Thus, the plaintiffs' only remaining claims were those for continuing toxic trespass, public and private nuisance, property damage and fraud.
¶11 On March 1, 1996, oral argument was heard on the defendants' second summary judgment motion before Judge Jerry O. Terry. During the course of this hearing plaintiffs' counsel argued that the affidavits of Rappe and Tondeur were not properly before the court because they were not attached to the original motions for summary judgment filed in December of 1993, but rather had been "submitted in rebuttal" to the plaintiffs' test results and the affidavit of Dr. Hume. Plaintiffs' counsel complained that they had never been given a chance to respond to the affidavit of Dr. Rappe, and requested that the court grant them an opportunity to do so.
¶12 The trial court entered its Judgment and Findings of Fact and Conclusions of Law on May 3, 1996. In light of Ferguson, the court granted judgment on the pleadings on the plaintiffs' personal injury claims and dismissed those claims with prejudice. The court also dismissed the plaintiffs' claims for punitive damages. In disposing of the remaining claims, the court found that "Plaintiffs' lack of legally sufficient proof of exposure and causation entitles the Leaf River Defendants to summary judgment on all of Plaintiffs' claims." This appeal followed.
¶13 This Court employs a de novo standard in reviewing a grant of summary judgment. Allen v. Mac Tools, Inc., 671 So.2d 636, 640 (Miss.1996); National Farmers Union Property & Cas. Co. v. First Columbus Nat'l Bank, 669 So.2d 767, 769 (Miss.1996); Owen v. Pringle...
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...law does not recognize a claim for medical monitoring based on increased risk of future disease. In Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543, 546 (Miss.1998), during the trial court determination of whether to grant summary judgment for the defendants on the plaintiffs' cl......
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