Leaf River Forest Products, Inc. v. Ferguson

• Court: United States State Supreme Court of Mississippi
• Citation: 662 So.2d 648
• Docket Number: No. 92-CA-00387-SCT,92-CA-00387-SCT
• Parties: LEAF RIVER FOREST PRODUCTS, INC., Great Northern Nekoosa Corporation and Georgia-Pacific Corporation v. Thomas Dixon FERGUSON, Jr. and Bonnie Jane Ferguson.
• Decision Date: 19 October 1995

Page 648

662 So.2d 648

LEAF RIVER FOREST PRODUCTS, INC., Great Northern Nekoosa

Corporation and Georgia-Pacific Corporation v. Thomas Dixon FERGUSON, Jr. and Bonnie Jane Ferguson.

No. 92-CA-00387-SCT.

Supreme Court of Mississippi.

Oct. 19, 1995.

Lee Davis Thames, Butler Snow O'Mara Stevens & Cannada, Jackson, W. Wayne Drinkwater Jr., Lake Tindall & Thackston, Jackson, Joe Sam Owen, Owen Galloway & Clark, Gulfport, for Appellant.

John M. Deakle, Hattiesburg, Patrick W. Pendley, Plaquemine, LA; Lawrence E. Abernathy, III, Laurel, Curtis R. Hussey, Hattiesburg, for Appellee.

Luther T. Munford, Phelps Dunbar Firm, Jackson, Carlton W. Reeves, Jackson, John H. Price, Jr., Price & Zirulnik, Jackson, for Amicus Curiae.

EN BANC.

PITTMAN, Justice, for the Court:

Eleven plaintiffs sued Georgia-Pacific Corporation, Great Northern Nekoosa Corporation, Leaf River Corporation, and Leaf River Forest Products, Inc., in Jackson County Circuit Court, alleging that the defendants had, through operation of the Leaf River Paper Mill, discharged harmful substances into the Leaf and Pascagoula Rivers, thereby causing the plaintiffs personal injury and property damage. After filing two amended complaints the three remaining plaintiffs were Thomas Ferguson, Jr., his wife, Bonnie Jane Ferguson, and Louise H. Mitchell. After a trial the jury found in favor of the appellants, Leaf River Forest Products, Inc., et al. as to all of the claims made by the appellee, Louise H. Mitchell. Further, the jury found in favor of the appellants, Leaf River Forest Products, Inc., et al. as to any trespass committed against the appellee's property by the placing of any foreign substance on the said property. The jury did award the Fergusons $10,000.00 each on their nuisance claim; $90,000.00 each on their emotional distress claim; and $3,000,000.00 in punitive damages. After consideration of the briefs, a voluminous record and oral argument, we find that the evidence is insufficient to support verdicts based either on infliction of emotional distress or nuisance. Accordingly, we reverse and render judgment in favor of the defendants/appellants.

THIS COURT'S FINDINGS

We have before found that emotional distress inflicted either negligently or intentionally is compensable. However, emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger, and be supported by medical or scientific evidence so that there is a rational basis for the emotional fear. We do not harm and, in fact, preserve a recovery for emotional distress when the same is based on such a foundation. We, therefore, reverse and render any award made based on emotional distress caused by a future illness and allow the claimants to await a manifestation of such future illness.

We find as to nuisance that there is little evidence and scarce testimony of any invasion by substance or odor by the defendants as to the appellants specific property. Without such there can be no nuisance.

PROCEDURAL HISTORY

In 1984 the Leaf River Paper Mill began operation in New Augusta, Perry County, Mississippi. The mill is located on the Leaf River, which eventually combines with the Chickasawhay River to form the Pascagoula River. The mill processes timber into a paper pulp product for domestic and foreign sale. In 1985 2,3,7,8-tetrachlorodibenzo-p-dioxin ("dioxin"), a toxic substance, was detected in the sludge, or solid waste material, produced by certain paper mills in Maine. It was subsequently determined that this type of dioxin was a by-product of the pulp-making process, particularly resulting where chlorine was used to bleach pulp to make it whiter. Dioxin was eventually found in the effluent, or waste water, and sludge produced by the Leaf River mill. Testing for dioxin was subsequently performed on fish caught in the Leaf River. As a result of these tests the Mississippi Department of Wildlife and Fisheries closed the Leaf, Pascagoula and Escatawpa Rivers to commercial fishing from October 1990 to January 1991, and issued consumption advisories for fish caught from the Leaf and Pascagoula Rivers. The consumption advisory for the Pascagoula

was lifted in December 1990, but remained in effect for the Leaf River

On March 1, 1991, eleven plaintiffs, including Thomas Ferguson, Jr., his wife, Bonnie Jane Ferguson, and Louise H. Mitchell filed suit in Jackson County Circuit Court against Leaf River Forest Products, Inc.; Warren Richardson; Acker Smith; Great Northern Nekoosa Corporation; and Georgia-Pacific Corporation. The plaintiffs alleged that the defendants, through the operation of the Leaf River mill, had discharged toxic chemicals into the Leaf River, causing injury to the plaintiffs, who lived along the Pascagoula River. The complaint was based on negligence, strict liability, nuisance and trespass. The plaintiffs alleged that they had suffered emotional distress and were entitled to actual and punitive damages totaling approximately $560,000,000.00. Louise Mitchell's property was located approximately one hundred miles down river from the mill; the Fergusons' property was approximately one hundred twenty-five miles downriver from the mill.

Defendants answered and denied the allegations of the plaintiffs, raising several affirmative defenses. Plaintiffs' first amended complaint was filed on July 30, 1991. The amended complaint added Leaf River Corporation as a defendant. The defendants admitted that Leaf River Forest Products operated the mill; that Leaf River Forest Products was a wholly owned subsidiary of Leaf River Corporation; that Leaf River Corporation was a wholly owned subsidiary of Great Northern Nekoosa Corporation; and that Great Northern Nekoosa Corporation was a wholly owned subsidiary of Georgia-Pacific. Trial began on January 7, 1992.

PLAINTIFFS/APPELLEES

Thomas Ferguson, Jr., was born in Georgia but had lived in south Mississippi since 1945. In 1960, Ferguson purchased fifteen acres of land on the Pascagoula River. He cleared the land and built bayous, two boat sheds, a house, a bait shop and a trailer park. He had hoped to leave the property to his son. He stated that he could no longer swim or fish in the river and he had developed a fear of cancer, as he had eaten large amounts of fish caught in the Pascagoula before knowing about the dioxin problem. Ferguson also stated that his property had flooded several times recently and this had worsened his fear that his property was contaminated with dioxin.

Ferguson testified that if he had known that the mill was discharging dioxin into the river, he would have made "different arrangements with [his] lifestyle." He had first noticed the river water getting darker in 1986-87. Ferguson had seen Dr. Charlton Stanley, a psychologist, and Dr. Donald Guild, a psychiatrist, but had not taken the medicine prescribed for him. He had not been informed of any kind of evaluation or diagnosis until his pretrial deposition was taken. Ferguson had not had his property or his well water tested for dioxin, and had not tried to sell his property. He had not had his blood tested for determination of dioxin levels. Ferguson had a separate fear of cancer claim in asbestos-related litigation, and he had been tested in connection with that particular claim.

Bonnie Jane Ferguson, wife of Thomas Ferguson, Jr., was born and raised in south Mississippi. She was a housewife and she also ran their marina, which included collecting the rent and keeping the records of the rent money. She stated that over the past few years the river had gotten darker, a light coffee color, and the fish did not bite like they once had. She had first noticed the change in the color of the river in 1985. Her greatest sense of loss came from the belief that the property she and her husband had planned to leave to their son was now worthless. She had declined Leaf River's offer to pay for her blood to be tested, stating that if dioxin was in her system and could not be removed she did not want to know about it. She claimed to have developed a fear of cancer because of the large amount of catfish she had eaten which had been caught in the Pascagoula. The fear was not something that paralyzed her or kept her from functioning.

We must note a lack of evidence as to substance on the Ferguson's property or dioxin in their body. The Fergusons testify only to a mental fear, a fear without foundation in fact.

OTHER RIVER RESIDENTS

O.V. Stringer had been fishing and camping on the Pascagoula River since 1940. Stringer had first noticed a change in the color of the Pascagoula in 1990. He had also noticed that the sandbars were copper or dark tea-colored from where the water had settled on them, and that the water had turned the color of dark, strong tea. He had also noticed in 1987 a decline in the fishing quality of the river. He particularly noticed a scarcity of catfish and a large quantity of dead mussels. Stringer agreed that he was also suing Georgia-Pacific, that members of his family were also dioxin plaintiffs, and that Mr. Deakle, lead counsel for the Fergusons, was his attorney.

Kenneth McGuire had come to south Mississippi from Kansas in 1959 for military service and had settled on the Pascagoula. He and his wife had owned a fishing camp on the Pascagoula for twelve years. McGuire noticed a change in the river color in 1985 or 1986. He stated that the river at that time was "about the consistency and the color of Tang drink" for about three or four weeks and there had been a fish kill. He said that the river had become darker over recent years and had developed a fibrous consistency. There were fewer fish being caught and some of those being caught had open sores. McGuire testified that he was a plaintiff in the dioxin litigation against Georgia-Pacific and that he had "a financial interest in the outcome of this case and the litigation in general."

APPELLEES' EXPERTS

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