Cunningham v. Masterwear Corp.

• Decision Date: 23 June 2009
• Docket Number: No. 08-1924.,08-1924.
• Citation: 569 F.3d 673
• Parties: Billy J. CUNNINGHAM and Mary Ann Cunningham, Plaintiffs-Appellants, v. MASTERWEAR CORPORATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

569 F.3d 673

Billy J. CUNNINGHAM and Mary Ann Cunningham, Plaintiffs-Appellants, v. MASTERWEAR CORPORATION, et al., Defendants-Appellees.

No. 08-1924.

United States Court of Appeals, Seventh Circuit.

Argued October 29, 2008.

Decided June 23, 2009.

Ronald J. Waicukauski (argued), Price Waicukauski Riley & Debrota, Indianapolis, IN, for Plaintiffs-Appellants.

Bruce L. Kamplain (argued), Norris, Choplin & Schroeder, Indianapolis, IN, for Defendants-Appellees.

Before POSNER, MANION, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs, a couple named Cunningham, appeal from the dismissal, on the defendants' motion for summary judgment, of a suit for common law nuisance. Jurisdiction is founded on diversity of citizenship. Indiana law would govern the substantive issues if there were any—but the only issues presented by the appeal are procedural.

From 1986 to the beginning of 2004, the plaintiffs operated a photographic studio in Martinsville, Indiana. The studio was next door to a building that until 1991 had contained a dry-cleaning business operated by defendant Masterwear. (The other defendants are Masterwear's owners, and can be ignored.) In 1994 the plaintiffs began living in the building that housed their studio. Soon they began having severe headaches, plus a hacking cough in the case of Mr. Cunningham and asthma in the case of his wife. In December 2003, the EPA warned them that their building contained perchloroethylene (PCE) vapors in a concentration of 200 parts per billion and that "this amount of the compound could be significant and pose a health concern over the long term." The vapors were apparently the result of improper storage of chemicals by Masterwear. Upon receiving the letter the plaintiffs moved out of the building and put it up for sale. (It was sold the following year.) They claim not to have had the symptoms of which they complain before they lived in the building and that after they moved out the symptoms diminished.

They seek damages both for the damage to their health and for what they contend is the depressed price at which they were forced to sell the property because of its contamination. The district court granted summary judgment for the defendants after disqualifying the plaintiffs' expert medical witness under Fed.R.Evid. 702 and ruling that the hearsay rule barred the plaintiffs from testifying about the valuation of their property by appraisers.

When ruling on whether the plaintiffs' medical expert, Dr. D. Duane Houser, a physician who specializes in the treatment of respiratory diseases, would be permitted to testify about the cause of the symptoms about which the plaintiffs complain, the judge had before him Dr. Houser's expert report plus deposition testimony. From these materials and Houser's curriculum vitae we learn that he is an experienced physician who has never however treated a respiratory illness caused or aggravated by exposure to PCE. He has nevertheless formed the definite opinion that all the symptoms of which the plaintiffs complain were caused by that exposure. A test of air samples in the plaintiffs' home in 1996 found that the air contained a level of PCE far above what the Indiana environmental agency considers the safe level of exposure to the chemical. (The plaintiffs say they were not told the results of the study and that if they had been told they would not have waited until 2004 to move out.) The EPA found that the concentration of PCE in the plaintiffs' home in September 2003 was lower than it had been in 1996; but it still was higher than the Indiana agency considers safe. Apparently the EPA has not made its own determination of what the maximum safe level is, beyond the warning in its letter to the plaintiffs that "this amount of the compound [the amount in their building] could be significant and pose a health concern over the long term."

Even if the plaintiffs were exposed to an unsafe level of PCE, it would not follow that it was the cause of their ailments. One would have to know what the specific dangers were that had led the Indiana department to pick the safe level it did; and about that, Houser's report and testimony are silent. Suppose that a concentration of some chemical above a certain level has been found to increase the incidence of birth defects, and as a result that level is fixed as the maximum safe level of exposure to the chemical; a person who was exposed to a higher level of the chemical and developed asthma could not attribute his ailment to his exposure.

Houser is not a toxicologist and did not present, either directly or by citation to a scientific literature, a theory that would link the level and duration of the exposure of the plaintiffs to PCE to their symptoms. He did cite a report by the United States Agency for Toxic Substances and Disease Registry which states that "levels of 216 ppm [parts per million] [of PCE] or more produce respiratory tract irritation" and that headaches "have been observed at exposures of 100 to 300 ppm." But the plaintiffs were exposed to only 200 parts per billion, which is only one-fifth of one part per million. Moreover, the report lists a variety of ailments unrelated to the plaintiffs'...