Hollingsworth v. Hercules
| Decision Date | 22 December 2016 |
| Docket Number | CIVIL ACTION NO. 2:15-CV-113-KS-MTP |
| Parties | LEE HOLLINGSWORTH, et al. PLAINTIFFS v. HERCULES, INC.. DEFENDANT |
| Court | U.S. District Court — Southern District of Mississippi |
For the reasons below, the Court grants in part and denies in part Defendant's Motion for Partial Summary Judgment [72].
This is a toxic tort case. Plaintiffs own property in Hattiesburg, Mississippi, near the site of a chemical plant that Defendant operated from 1923 until approximately 2009.1 Plaintiffs allege that Defendant improperly disposed of numerous hazardous waste products, contaminating the soil and groundwater beneath its facility. Plaintiffs contend that these hazardous waste products migrated through several environmental pathways and contaminated the soil, air, and groundwater of their property. Plaintiffs allege that they have suffered property damage, loss of income, and emotional distress. They specifically asserted counts of negligence, gross negligence, nuisance, and trespass.
The parties filed numerous dispositive and evidentiary motions, and they are allripe for review. The Court presently addresses Defendant's Motion for Partial Summary Judgment [72].
Rule 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). "An issue is material if its resolution could affect the outcome of the action." Sierra Club, Inc., 627 F.3d at 138. "An issue is 'genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, "the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
First, Defendants argue that Plaintiffs can not prove claims of trespass or nuisance with respect to the groundwater on their property because they have noevidence of contaminants in the groundwater on their property. As this Court has previously ruled,2 a "trespass requires an actual physical invasion of the plaintiff's property." Prescott v. Leaf River Forest Prods., 740 So. 2d 301, 310 (Miss. 1999).3 It appears to be undisputed that Plaintiffs have no evidence of contaminants in the groundwater on their property. Therefore, the Court grants Defendant's motion for summary judgment as to any trespass claim with respect to the groundwater on Plaintiffs' property.
Plaintiffs contend that they are not required to present evidence of an actual physical invasion of their property. Rather, they contend that evidence of groundwater contamination on property immediately adjacent to their own is sufficient to create a genuine dispute of material fact as to their groundwater trespass claims. As stated above, Mississippi law requires evidence of an "actual physical invasion of the plaintiff's property." Prescott, 740 So. 2d at 310. Plaintiffs decry this standard as "hyper-technical," but, regardless of Plaintiffs' opinion, it remains the law.
Defendant also argues that Plaintiffs have insufficient evidence to support aclaim of decreased property value caused by the alleged contamination. First, Defendant argues that Plaintiffs' expert only provided appraisals of 106 McLaurin Street and 452 Columbia Street without any contamination. Defendant contends that Plaintiffs can not maintain a claim of decreased property value without also presenting an expert opinion of the properties' value after contamination.
In response, Plaintiffs represent that they intend to provide their own expert testimony as to the contaminated, "as is" value of their properties. Indeed, "the opinion testimony of a landowner as to the value of his land is admissible without further qualification." LaCombe v. A-T-O, Inc., 679 F.2d 431, 434 (5th Cir. 1982). "The fields of knowledge which may be drawn upon" for expert testimony "extend to all 'specialized' knowledge," including "landowners testifying to land values." FED. R. EVID. 702 advisory committee's note.
In reply, Defendant contends that Plaintiffs failed to adequately disclose their opinions regarding the value of the properties. However, Local Rule 26 provides: "Challenges as to inadequate disclosure of expert witness(es) must be made no later than thirty days before the discovery deadline or will be deemed waived." L.U.Civ.R. 26(a)(3). The discovery deadline was September 15, 2016, Defendant first raised this issue on October 27, 2016, when it filed its reply brief. Accordingly, Defendant waived any argument regarding the inadequate disclosure of Plaintiffs' testimony regarding the value of their own properties.
Defendant also argues that Plaintiff can not prove a diminution in value of 138 West 8th Street. Plaintiff's appraiser concluded that the property was worth $35,000without any contamination, and $0.00 as is. See Exhibit 11 to Motion for Partial Summary Judgment at 3, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-11. He concluded that the property currently had no value because the "minimal remediation costs . . . exceed the unimpaired value of the property." Id. at 39. Defendant contends that the appraiser's opinion as to the property's current value is based upon the estimated cost of "monitoring" the property for a trespass at some point in the future, and it argues that Mississippi does not permit recovery of damages for monitoring based on the risk of future injury. See Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 5 (Miss. 2007).
Assuming that the appraiser's opinion of the current value of the house is inadmissible, Plaintiffs can still meet their burden of proof. Plaintiffs presented an affidavit from Plaintiff Lee Hollingsworth, one of the owners of 138 W. 8th Street, in which he provided his own opinion that the property would "likely sell for at least 25-30% less than" it would if it were not contaminated. Exhibit 5 to Response at 3, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Oct. 20, 2016), ECF No. 86-5. As explained above, Hollingsworth's opinion as to the property's value "is admissible without further qualification." LaCombe, 679 F.2d at 434. When combined with the appraiser's estimate of the property's unimpaired value - which Defendant does not challenge in the current motion - Plaintiff can demonstrate a diminution in the property's value.
Next, Defendant argues that Plaintiffs can not recover emotional damages. Theparties appear to agree that there are two routes to recovery of emotional damages - as damages recoverable on Plaintiffs' ordinary negligence claims or via a claim of intentional infliction of emotional distress ("IIED").4 According to their disclosures, Plaintiffs suffered emotional distress because 1) the contamination of their property caused a decrease in their rental revenue, and 2) they fear for their own health.
First, Plaintiffs now deny that they seek emotional damages based on their fear of future health problems, despite explicitly stating as much in their initial disclosures. See Exhibit 9 to Motion for Partial Summary Judgment at 11, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-9. Regardless, the Mississippi Supreme Court "has never allowed or affirmed a claim of emotional distress based solely on a fear of contracting a disease or illness in the future, however reasonable." Paz, 949 So. 2d at 5. Therefore, to the extent Plaintiffs asserted a claim for emotional damages based on their fear of future health problems,the Court grants Defendant's motion for summary judgment as to it.
Emotional distress "is a nebulous concept and requires substantial proof for recovery." Wilson v. Gen Motors Acceptance Corp., 883 So. 2d 56, 64 (Miss. 2004). To recover emotional damages on an ordinary negligence claim, "the plaintiff must prove some sort of injury or demonstrable harm, whether it be physical or mental, and that harm must have been reasonably foreseeable to the defendant." Blackard v. Hercules, Inc., 17 F. Supp. 3d 576, 582 (S.D. Miss. 2014). Phrased differently, the plaintiff must, at the very least, "prove that he has incurred a mental or emotional injury," that is "medically cognizable and treatable." Paz, 949 So. 2d at 4.
Defendant argues that Plaintiffs can not recover emotional damages for their negligence claims because there is no evidence that they have suffered a demonstrable mental or physical injury. Indeed, Plaintiffs testified that they have neither suffered a physical injury nor sought medical treatment or counseling for their alleged mental anguish. See Exhibit 3 to Motion for Summary Judgment at 5, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-3; Exhibit 2 to Motion for Summary Judgment at 5, Hollingsworth v. Hercules, No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-2.
In their briefing, Plaintiffs made no attempt to demonstrate that they have suffered any reasonably foreseeable physical or mental harm as a result...
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