Freeman v. Blue Ridge Paper Prods., Inc., 12-6259

• Decision Date: 09 July 2013
• Docket Number: No. 12-6259,12-6259
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: BETH FREEMAN, Individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. BLUE RIDGE PAPER PRODUCTS, Inc., Defendant-Appellee.

BETH FREEMAN, Individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. BLUE RIDGE PAPER PRODUCTS, Inc., Defendant-Appellee.

No. 12-6259

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Filed: July 9, 2013

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0635n.06

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF TENNESSEE

OPINION

BEFORE: COLE and COOK, Circuit Judges; KATZ, District Judge.^*

KATZ, District Judge. This is a class action for nuisance under North Carolina law in which the Plaintiff-Appellants, real property owners on the Pigeon River in Cocke County, Tennessee, appeal from the Eastern District of Tennessee's entry of summary judgment in favor of Defendant-Appellee Blue Ridge Paper Products, Inc. (hereinafter, "Defendant"), a paper mill located on the Pigeon River in North Carolina, twenty-six miles upriver from the Tennessee / Cocke County line. The district court held that Plaintiffs did not introduce sufficient evidence to prove causation, and therefore entered summary judgment in favor of Defendant. We AFFIRM.

I.

Defendant operates a paper mill that is located on the Pigeon River in Canton, North Carolina. As part of its operations, and pursuant to "a lawful permit issued by the state of North Carolina under the auspices of the United States Environmental Protection Agency," Defendant discharges an effluent into the river that contains a laundry list of chemicals.¹

Plaintiff class members are 300 real property owners in Cocke County, Tennessee, whose property sits along the Pigeon River approximately twenty-six miles downstream from Defendant's paper mill. Plaintiffs complain that the river in Cocke County is black or brown in color, that it emanates a foul odor and that it contains recurrent foam. Plaintiffs attribute the conditions to Defendant, and also claim to experience fear, stress, annoyance and anxiety as a result of Defendant's effluent. Plaintiffs therefore seek damages for nuisance under North Carolina law.²

Prior to the instant lawsuit, the same Plaintiffs brought a class action in Tennessee state court seeking North Carolina nuisance damages for a six year period covering June 1, 1999 throughAugust 16, 2005. That case resulted in a $2 million dollar jury verdict for Plaintiffs. See generally Freeman v. Blue Ridge Paper Prods., Inc., 229 S.W.3d 694 (Tenn. Ct. App. 2007) (hereinafter "State Ct. Op."). Thereafter, Plaintiffs filed five separate lawsuits in Tennessee state court seeking nuisance damages for five consecutive six-month periods, the first of which began on August 17, 2005 (the day after the close of the prior suit). After a series of removals, remands and an appeal to this Court, see generally Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405 (6th Cir. 2008) (finding Plaintiffs artificially broke-up the five cases to avoid CAFA, and that damages from each of the cases should therefore be aggregated), the cases were consolidated and ultimately landed in the U.S. District Court for the Eastern District of Tennessee as a class action for North Carolina nuisance covering a seven year period beginning on August 17, 2005, and running through the anticipated date of trial in 2011.

At the district court, Defendant moved for summary judgment on the basis of a "Failure of Proof and No Proximate Cause." In analyzing the motion, the district court held that, under the facts sub judice, North Carolina's nuisance law required Plaintiffs to: (1) prove that Defendant was the sole source or cause of the nuisance; and (2) prove causation by expert evidence. The district court took inventory of the parties' expert evidence as follows:

First, the plaintiff disclosed John McElligott, M.D., F.A.C.P., M.P.H. as a medical doctor specializing in occupational health and safety. He was expected to testify to the genotoxic effect of the mill's effluent and the plaintiff's fear of the river's water. However, it is undisputed that Dr. McElligott has not tested the water in Tennessee. It is also undisputed that Dr. McElligott does not have any documents or materials that indicate what substances are in the water as it flows through Cocke County.

Second, the plaintiff intends to call Mr. Jerry Clark, CSP, CIH, a certified industrial hygienist. Mr. Clark was expected to testify to the genotoxic effects of thechemicals discharged by the mill. He admits, however, that he is "not aware of a scientifically designed, comprehensive environmental study of the quantity and concentrations of agents discharged in the Blue Ridge Paper Product, Inc. waste stream into the Pigeon River and their downstream concentrations or environmental fate." Further, he made no attempt to quantify the actual or theoretical risk to the health of the downstream receptors.

Third, the plaintiff had disclosed plans to offer Mr. David W. Weekley, RPIH, as a witness. Mr. Weekley is a registered industrial hygienist who was to address the empirical sampling of water extracted from the river at various locations. His testimony was to address the quality of the water as it flows past the plaintiff's property. However, the plaintiff withdrew Mr. Weekley's name as one of her experts in her amended expert disclosures of April 16, 2012. On this same date, the plaintiff disclosed a laboratory report entitled "Pigeon River Study." It set forth analysis of water samples drawn from the Pigeon river on April 11, 2012. Neither Dr. McElligott nor Mr. Clark have reviewed this study.

Defendant's expert reports that there are no human health, human welfare or ecological health concerns that can be related to the mill due to the water quality of the Pigeon River. This expert opines that many Tennessee tributaries, which do not meet Tennessee water quality standards, contribute to the river's color, foam and substantive makeup. Another defense expert would testify that the mill's discharge does not represent a threat to human health in the Pigeon River. He further opines that there are numerous other dischargers downstream from the mill that affect the river. This expert analyzed the plaintiff's April 16, 2012 report and concluded that the samples from the river raise no concern for human health, ecological health or aesthetics. He further concluded that influences other than the mill have a detrimental effect on the river, namely Waterville Lake, Bethel and Cosby Schools, Newport treatment facilities, and runoff from urban and agricultural areas.

District Court Mem. Op., R.304 at 2-3, Page ID 7120-21 (footnote omitted).³

After analysis, the district court entered summary judgment against Plaintiffs on all claims. First, the court concluded that Plaintiffs failed to introduce the requisite expert proof of causation,noting that none of Plaintiffs' experts would testify that Defendant's effluent caused the color, odor or foam, nor that any of the chemicals from Defendant's effluent were even present in the river in Cocke County. Id. at 12. Second, the court found that the expert testimony Plaintiffs did offer—that Defendant's chemicals may cause genotoxic and carcinogenic effects, and that Defendant's discharges may reasonably harm economic and emotional well being—could not support an action. Specifically, Plaintiffs' experts would not testify that the chemicals at issue were present in Cocke County, or that they were otherwise present in quantities that would cause the risks complained of. Therefore, the court found that such testimony did not demonstrate a "scientifically verifiable risk," and was thus insufficient to defeat summary judgment. Plaintiffs appeal.

II.

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This Court reviews a district court's entry of summary judgment de novo. Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999).

III.

A.

The parties agree that "[t]o recover in nuisance [in North Carolina], [P]laintiffs must show an unreasonable interference with the use and enjoyment of their property." Jordan v. Foust Oil Co., Inc., 447 S.E.2d 491, 498 (N.C. Ct. App. 1994). Plaintiffs contend, however, that the district courtcontrived an erroneous standard of causation by requiring Plaintiffs to: (1) prove that Defendant was the sole source or cause of the nuisance; and (2) prove causation by expert evidence.

Plaintiffs are correct that North Carolina law does not require them to show that Defendant was the sole source or cause of the alleged nuisance. Neither the cases cited by the district court, nor any other North Carolina authority offered to this Court, support the proposition that Plaintiffs must show Defendant to be the sole source or cause. Indeed, the district court never actually applied this requirement to its analysis, and Defendant makes no argument in support of such a standard on appeal. Instead, Defendants correctly argue that any error in declaring a sole source requirement was harmless because the district court properly required proof of causation by expert evidence. See 28 U.S.C. § 2111 ("The court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."); Cox v. CSX Transp., Inc., No. 88-6235, 1989 U.S. App. LEXIS 15696, at *8 (6th Cir. Oct. 12, 1989) (citing id.).⁴

As to the second requirement imposed by the district court, it was proper to require a showing of expert evidence to prove causation, and was likewise proper to enter summary judgment against Plaintiffs' claims regarding the river's color, odor and foam. Expert evidence is required where "the subject matter . . . is 'so far removed from the usual and ordinary experience of the average man that...