Berry v. Armstrong Rubber Co.

• Decision Date: 03 May 1993
• Docket Number: Nos. 91-1934,91-1996,s. 91-1934
• Citation: 989 F.2d 822
• Parties: , 23 Envtl. L. Rep. 21,117, 38 Fed. R. Evid. Serv. 1157 James BERRY, Sr., et al., Plaintiffs, James Berry, Sr., et al., Plaintiffs-Appellants, v. The ARMSTRONG RUBBER COMPANY, Defendant-Appellee. J. Wesley COOPER, et al., Plaintiffs-Appellants, v. The ARMSTRONG RUBBER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 822

989 F.2d 822

61 USLW 2707, 23 Envtl. L. Rep. 21,117,

38 Fed. R. Evid. Serv. 1157

James BERRY, Sr., et al., Plaintiffs, James Berry, Sr., et al., Plaintiffs-Appellants, v. The ARMSTRONG RUBBER COMPANY, Defendant-Appellee.

J. Wesley COOPER, et al., Plaintiffs-Appellants, v. The ARMSTRONG RUBBER COMPANY, Defendant-Appellee.

Nos. 91-1934, 91-1996.

United States Court of Appeals Fifth Circuit.

May 3, 1993.

Rehearing Denied Sept. 20, 1993.

Stuart H. Smith, Jack W. Harang, New Orleans, LA, Edwin E. Kerstine, Jackson, MS, for plaintiffs-appellants in No. 91-1934.

Ernest G. Taylor, Jr., Robert H. Weaver, Michael T. Dawkins, Watkins, Ludlam & Stennis, Jackson, MS, for defendant-appellee in No. 91-1934.

Stuart H. Smith, Jack W. Harang, New Orleans, LA, for plaintiffs-appellants in No. 91-1996.

Ernest G. Taylor, Jr., Robert H. Weaver, Watkins, Ludlam & Stennis, Jackson, MS, for Armstrong Rubber Co. in No. 91-1996.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and ROSENTHAL, District Judge. ^*

ROSENTHAL, District Judge:

1. Background

This is a consolidated appeal from a grant of summary judgment in favor of defendant Armstrong Rubber Company ("Armstrong") in two separate suits. Armstrong operated a tire manufacturing plant in Natchez, Mississippi, from 1937 through 1987, when it sold the plant. Plaintiffs are individuals who live in Natchez, Mississippi. It is undisputed that from 1937 through the 1970s, Armstrong "dumped" waste materials from this plant into various sites around the Natchez area. It is also undisputed that several of these sites are located near the areas in which plaintiffs live. Plaintiffs claim that this dumping left hazardous chemicals on their land and in their groundwater. Armstrong denies the presence of any harmful level of hazardous materials on plaintiffs' land or in their water.

In 1988, plaintiffs sued Armstrong in two separate cases, James Berry, et al. v. Armstrong Rubber Co., Civ.A. No. J88-0653(B), U.S. District Court, S.D. Miss., Jackson Division, and J. Wesley Cooper, et al. v. Armstrong Rubber Co., Civ.A. No. J88-0464(L), U.S. District Court, S.D. Miss., Jackson Division, alleging a right to recovery under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601-9675, and under Mississippi state law causes of action for nuisance, trespass, personal injury, strict liability, negligence, and property damage. ¹ After almost two years of discovery, the district court dismissed plaintiffs' claims, holding that plaintiffs had not produced sufficient evidence that hazardous substances were present or that such substances caused any injuries. 780 F.Supp. 1097. We affirm the rulings of the trial court.

2. Standard of Review

This court reviews the grant of summary judgment de novo, applying the same Rule 56 standards employed by the district court. See Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir.1991). Evidentiary rulings are reviewed under a manifest error standard. Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991), cert. denied --- U.S. ----, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992); Viterbo v. Dow Chem. Co., 826 F.2d 420 (5th Cir.1987). If the district court's ruling depended on the admissibility of certain evidence, appellate review is a two-tiered process. First, we review the evidentiary rulings under the manifest error standard, then review the trial court's summary judgment decision de novo. Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109.

In granting a motion for summary judgment, the district court is not to weigh the evidence or make credibility choices. Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 223 (5th Cir.1991). This does not mean, however, that the existence of any factual dispute will foreclose summary judgment. The dispute must be genuine, with facts on both sides of a material issue, before a court must submit it to a jury. See Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th Cir.1990).

The trial court held that much of plaintiffs' expert testimony lacked sufficient probative value under Rule 703 of the Federal Rules of Evidence to overcome summary judgment for Armstrong. Viterbo v. Dow Chem. Co., 826 F.2d at 422. Rule 703 does not "make summary judgment impossible whenever a party has produced an expert to support its opinion." Viterbo v. Dow Chemical Co., 826 F.2d at 422 (quoting Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C.Cir.1977)). If the basis for the expert's opinion is so unreliable that no reasonable expert could base an opinion on that data, the opinion may be excluded in the district court's determination of whether there is a genuine issue regarding an essential element of the claim. Viterbo v. Dow Chemical Co., 826 F.2d at 422; see also Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 225 (5th Cir.1991); Christophersen v. Allied-Signal Corp., 939 F.2d at 1113-14.

We conclude that the district court correctly granted defendant's summary judgment motion. Because the evidence presented by the Berry and the Cooper plaintiffs is in some respects distinct, we analyze the issues of proof as to each case separately.

3. Berry

Plaintiffs James Berry, Sr., James Berry, Jr., Dwight Berry, and Tangela Berry, live at 103 Downing Rd. in the Mayfair Subdivision in Natchez. Plaintiffs Charles and Bessie Prater live across the street at 102 Downing Rd. These plaintiffs, the "Berry plaintiffs," claim that their homes rest on top of and/or near fill material containing toxic wastes left by Armstrong, and that their health and property values have suffered as a result.

It is undisputed that these plaintiffs' lots have never been tested to determine whether any toxic chemicals are present. Plaintiffs admit that there is no test data of soil or water taken from their lots. Plaintiffs instead relied on expert testimony to provide circumstantial evidence of the presence of hazardous substances in a quantity sufficient to cause the alleged harm.

One of plaintiffs' experts, Dr. Ralph Pike, a chemical engineer, reviewed tests of soil samples by the Mississippi Bureau of Pollution Control (BPC) and the United States Environmental Protection Agency (EPA). These samples were taken from lots along Hampton Court, approximately one-half mile northwest of the Mayfair subdivision. Dr. Pike reviewed these samples and stated in an affidavit that it was "more probable than not" that the chemicals found in the Hampton Court area were produced by the "tire manufacturing industry in Natchez, Mississippi," and that it was "more probable than not" that some of the chemicals were hazardous and/or toxic materials. (Vol. III, p. 569).

Dr. Pike admitted that he did not know where Mayfair was, whether any testing had been done there, or where plaintiffs lived. (Vol. III., p. 632-33). It is undisputed that he relied on data from tests he did not do, of soil taken from property not involved in this case. It is also undisputed that based on these same tests, the BPC concluded that "there was no imminent threat to the public health or the environment and that no type of emergency response action was warranted." (Vol. IV, p. 1135).

Dr. Pike also reviewed tests by the Mississippi Office of Pollution Control (OPC), the successor to the BPC, in the Hampton Court, George F. West Boulevard, and Mayfair areas. Soil vapor samples taken at two lots in Mayfair, neither of which belonged to plaintiffs, indicated the presence of trace amounts of hydrogen sulfide. (Vol. IV, pp. 116-17). One sample taken from a lot located a quarter mile northwest of Mayfair showed a hydrogen sulfide concentration over 200 times greater than that found in Mayfair. The OPC found that this was due to a gas pipeline leak and the presence of sewer and store drains. (Vol. IV, p. 1141). The OPC concluded that "the site does not pose any significant risk to the public health or the environment." (Vol. IV, p. 1143). Dr. Pike stated by affidavit that the hydrogen sulfide could be a by-product of the tire manufacturing waste stream. (Vol. IV, p. 1123). He did not, however, dispute the OPC's conclusion that no threat to health or the environment was present in the area.

Plaintiffs also relied on the expert testimony of Wilma A. Subra, a chemist, who concluded that it was "more probable than not" that hazardous components of Armstrong's waste stream were deposited in the land fills on which plaintiffs' homes were built. (Vol. III, p. 810-12). Like Dr. Pike, Ms. Subra did not conduct any chemical analyses of soil samples from plaintiffs' home sites. Unlike Dr. Pike, she did not even base her conclusions on any chemical analysis or testing performed by a third party. (Vol. III, p. 653-54). Instead, she relied solely on physical observations of waste at a site unrelated to this case, with no chemical analysis of the waste to determine whether it was toxic. Id.

Beyond the opinions of their experts, there is little in the summary judgment record to evidence the presence of hazardous wastes on plaintiffs' land. Plaintiff James Berry stated in his deposition that he saw "rubber and stuff" dug up from his back yard. (Vol. III, p. 607) Plaintiffs point to the testimony of various witnesses that they either participated in or saw Armstrong dumping tires and barrels in the "general area" of plaintiffs' homes some 30 to 40 years earlier. Based on such evidence, plaintiffs and their experts "surmise" that wherever Armstrong disposed of tires, it "probably" also disposed of toxic chemicals. Because tires and barrels were removed from James Berry's lot, plaintiffs asked the district court to infer that chemicals from the Armstrong plant were also present on plaintiffs' lots. (Vol. III, pp. 810-12).

The plaintiffs' property damage claim was based on the testimony of William Douglas Upchurch, a real estate...