Brantley v. Int'l Paper Co.

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
PartiesTHOMAS L. BRANTLEY, et al., Plaintiffs, v. INTERNATIONAL PAPER COMPANY, Defendant.
Docket NumberCivil Action No. 2: 09-230-DCR
Decision Date24 May 2017

THOMAS L. BRANTLEY, et al., Plaintiffs,

Civil Action No. 2: 09-230-DCR


May 24, 2017


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The plaintiffs filed this action in March 2009, alleging that Defendant International Paper Company ("IP") caused them personal injuries and damaged their properties by releasing hazardous substances into the environment. The plaintiffs consist of more than 300 residents of Prattville, Alabama, where IP operates a mill, which uses a kraft pulping process to make paper for various products. The plaintiffs have alleged claims of trespass, public nuisance, private nuisance, negligence, wantonness, negligence per se, abnormally dangerous activity, and fraudulent suppression.1 On May 15, 2009, IP filed a motion to dismiss, which

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the Court granted in part and denied in part. [Record No. 33] Specifically, the Court dismissed with prejudice the negligence per se claims and dismissed without prejudice the trespass, nuisance, negligence, wantonness, and fraudulent suppression claims. [Record No. 41] On September 21, 2009, the plaintiffs filed an Amended Complaint, reasserting the claims that were dismissed without prejudice. [Record No. 42]

Thereafter, the parties were permitted to select a group of 40 "test plaintiffs" to streamline the discovery process. These plaintiffs would constitute the first phase of litigation and would be the focus of the case up through the filing of dispositive motions. [Record No. 92, p. 5] A handful of the test plaintiffs later dropped their claims voluntarily or left the group for other reasons, reducing the group of test plaintiffs to 26.

In October 2011, the plaintiffs moved the Court to take judicial notice of approximately 150 scientific facts which appear to be excerpted primarily from EPA and Alabama Department of Environmental Management publications, as well as the mill's operating permit. [Record No. 182] On October 28, 2011, IP moved for summary judgment on the plaintiffs' claims of negligence, wantonness, nuisance, trespass, and abnormally dangerous activity. [Record No. 183] The same day, IP filed separate motions for summary judgment regarding the plaintiffs' personal injury claims [Record No. 185], fraudulent suppression claims [Record No. 187],

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and the test plaintiffs' property damage claims [Record No. 189]. IP also filed motions to exclude the testimony of the plaintiffs' expert witnesses. [Record Nos. 191, 193, 195]

The plaintiffs then filed a second motion for judicial notice [Record No. 197], as well as a motion for partial summary judgment [Record No. 201]. The plaintiffs also moved to exclude the testimony of IP's expert witnesses. [Record Nos. 203, 205, 210, 212, 216, 218] In September 2012, Judge Thompson, who recently had been assigned the case, temporarily denied all pending motions without prejudice.2 At that time, the Court advised that the motions would be "sua sponte reinstated . . . one by one or in groups." Id.

On November 8, 2013, the plaintiffs moved the Court to set a trial date. [Record No. 271] IP opposed the motion and asked the Court to rule on the numerous motions that were denied temporarily in September 2012. [Record No. 272] The matter was reassigned from Judge Thompson to the undersigned in August 2016. [Record No. 274] Thereafter, a conference was held during which the parties discussed their positions regarding the status of the case. [Record No. 282] The parties asked the Court to defer ruling on the pending motions for a brief period so that they might discuss informal resolution of the matter. Shortly after the

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conference, the plaintiffs filed a status report indicating that resolution of the claims had not been accomplished. [Record No. 284] Accordingly, the Court will now address all pending motions.

I. Regulatory Background

Before delving into the parties' filings, it is helpful to examine the regulatory context in which the Prattville mill operates. The federal Clean Air Act, 42 U.S.C. § 7401 et seq., is the primary statutory scheme under which air emissions in the United States are managed. North Carolina v. TVA, 615 F.3d 291, 298 (4th Cir. 2010). Under this Act, the EPA develops acceptable levels of airborne emissions, known as National Ambient Air Quality Standards ("NAAQS"), "the attainment and maintenance of which . . . are requisite to protect the public health." Id. at 298-99. There are primary NAAQs which are intended to protect individuals, and secondary NAAQS which are intended to protect the environment. The EPA has set NAAQS for six "criteria air pollutants" or CAPS. These include: carbon monoxide (CO); lead; nitrogen dioxide (NO2), ozone (O3), particle pollution (PM2.5 and PM10), and sulfur dioxide (SO2). NAAQS are meant to set a uniform level of air quality to ensure both a healthy populace and environment. Id. at 299. Primary NAAQS protect the health of "sensitive" populations such as asthmatics, children, and the elderly. See Mississippi Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 146 n.2 (D.C.C. 2015).

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Congress has recognized that air pollution prevention and control is the primary responsibility of the states. North Carolina, 615 F.3d at 299 (citing 42 U.S.C. § 7410(a)(3)). Accordingly, decisions regarding how to meet NAAQS are left to the individual states. Each state must develop a State Implementation Plan ("SIP"), which is submitted to the EPA for approval. See 42 U.S.C. § 7410. See also Ala. Envtl. Council v. Adm'r, U.S. EPA, 711 F.3d 1277, 1280 (11th Cir. 2012). SIPs must include "enforceable emission limitations and other control measures, means, or techniques" to ensure that each state meets NAAQS. 42 U.S.C. § 7410(a)(2)(A). The Alabama Department of Environmental Management ("ADEM") oversees the Alabama Air Pollution Control Act of 1971, Ala. Admin. Code. § 335-3-1 et seq. (SIP codified at 40 C.F.R. § 52.69).

The National Emissions Inventory ("NEI") is a "comprehensive and detailed estimate of air emissions of criteria pollutants, criteria precursors, and hazardous air pollutants3 from air emissions sources." National Emissions Inventory, (last visited May 22, 2017). The NEI is released every three years based on data collected from state and local agencies for sources in their jurisdictions, and

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supplemented by data developed by the EPA.

The Emergency Planning and Community Right to Know Act ("EPCRA"), 42 U.S.C. § 11001 et seq. was passed in 1986 in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. Under EPCRA, owners and operators of certain facilities are required to submit toxic release inventory ("TRI") reports for listed chemicals that are "manufactured, processed, or otherwise used," above specified threshold levels. 42 U.S.C. § 11023(a). "In general, chemicals covered by the TRI program are those that cause one or more of the following: cancer or other chronic human health effects; significant adverse human health effects; significant adverse environmental effects." See (last visited May 22, 2017). See 40 C.F.R. § 372.65 (listing specific chemicals subject to reporting requirements).

II. Admissibility of Expert Testimony

Federal Rule of Evidence 702 provides that: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise." In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court created a special gatekeeping role for trial courts, intended to

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"keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1311-12 (11th Cir. 1999).

The Daubert Court provided four non-exhaustive factors that courts should consider in assessing reliability under Rule 702: (1) whether the expert's theory or technique can and has been tested; (2) whether it has been subjected to peer review; (3) whether it has a high known or potential rate of error; and (4) whether the theory or technique has gained general acceptance within the relevant scientific community. Daubert, 509 U.S. at 593-94. The reviewing court's primary focus should be on the expert's principles and methodology—not the conclusions reached. Allison, 184 F.3d at 1312. Factors that may negatively impact reliability are improper reliance on anecdotal evidence or temporal proximity, or engaging in improper extrapolation. See id. Additionally, the expert's testimony must "logically advance[] a material aspect of the proposing party's case." Id. Evidence must have a "valid scientific connection" to disputed facts in the case—otherwise it is not helpful to the jury. See id.

When analyzing a challenge under Daubert, the court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that

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characterizes the practice of an expert in the relevant field." McClain v. Metabolife Intern., Inc., 401 F.3d 1233, 1237 (11th Cir. 2005). Although the trial court should act as a gatekeeper, "its role is not intended to supplant the adversary system or the role of the jury," and "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Allison, 184 F.3d at 1311...

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