Marmo v. Tyson Fresh Meats, Inc.

Decision Date03 August 2006
Docket NumberNo. 05-1906.,No. 05-3649.,05-1906.,05-3649.
Citation457 F.3d 748
PartiesCarol MARMO, Appellant, v. TYSON FRESH MEATS, INC., f/k/a IBP, Inc., Appellee. Carol Marmo, Appellant, v. Tyson Fresh Meats, Inc., f/k/a IBP, Inc., Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Michael D. Goodstein, argued, Washington, DC (Stacey H. Myers of Washington, D.C., Richard A. DeWitt, Scott D. Jochim and David J. Skalka, Omaha, NE, and Thomas A. John, Indianapolis, IN, on the brief), for appellant.

Steven D. Davidson, argued, Omaha, NE (James W. Mizgala and Sherry A. Knutson, Chicago, IL, on the brief), for appellee.

Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,1 District Judge.

MAGNUSON, District Judge.

Carol Marmo appeals from the final judgment entered on a jury verdict awarding her $17,500.00 on a nuisance claim against Tyson Fresh Meats, Inc., f/k/a IBP, Inc. ("IBP"). She also appeals the subsequent award of costs. We affirm.


Marmo commenced this action in the District Court of Dakota County, Nebraska, in September 2000. IBP timely removed the case to the United States District Court for the District of Nebraska.2 The case was consolidated for discovery and pretrial purposes with twelve similar cases, but each case is to be tried individually. This is the first, and thus far only, case to proceed to trial.

The complaint alleged three theories of recovery: nuisance, negligence, and strict liability. In each claim, Marmo asserted that she had been damaged by hydrogen sulfide gas emitted from the wastewater treatment lagoons at IBP's beef processing plant. Marmo later attempted to amend the complaint to add an unjust enrichment claim based on a pollution easement theory. Specifically, Marmo claimed that IBP inequitably saved $70 million by not installing appropriate pollution control equipment. The district court rejected the proposed amendment as futile, concluding that the unjust enrichment claim based on the facts presented was a novel cause of action that the Nebraska courts had not recognized.

The initial progression order established a staggered schedule for expert witness disclosures. The order required Marmo to submit her expert disclosures first, followed by IBP's expert disclosures. Thereafter, either party could disclose additional expert witnesses if "necessary to refute the disclosed opinions of any expert witness of an opponent." (Marmo App. in Appeal No. 05-1906 at 77.) The order was amended numerous times to provide both parties extensions to the disclosure deadlines.

In March 2002, Marmo submitted disclosures for seven expert witnesses, including Dr. Kaye Kilburn, a physician who examined Marmo, and Dr. Harriet Ammann, a toxicologist. IBP disclosed its expert witnesses on various dates between August and November 2002. Marmo disclosed several rebuttal experts, including Dr. William Meggs, in April 2004.

In May 2004, IBP moved to strike several of Marmo's rebuttal witnesses, including Dr. Meggs, on the ground that their opinions offered replacement, and not rebuttal, testimony. In opposition to the motion, Marmo asserted that "the rebuttal reports . . . disclose quintessential rebuttal testimony" and that Dr. Meggs's reports were "classic rebuttal testimony." (IBP App. in Appeal No. 05-1906 at 94, 96.) The magistrate judge denied the motion to strike without prejudice, deferring the issue until trial.

In November 2004, IBP filed motions in limine to exclude the testimony of Dr. Kilburn and to preclude Dr. Ammann from offering an opinion on medical causation. In response, Marmo withdrew Dr. Kilburn as a witness for her case-in-chief and moved to re-designate Dr. Meggs as a primary witness. The district court denied the motion to re-designate, finding that modification of the progression order was not supported by good cause and would have substantially prejudiced IBP. The district court also ruled that Dr. Ammann was not qualified to testify on medical causation.

IBP moved for partial summary judgment on the strict liability and negligence claims, as well as on the issue of permanent physical injury. The district court granted summary judgment on the strict liability claim, finding that IBP did not engage in an ultrahazardous activity in the operation of its wastewater treatment facility. The district court also granted summary judgment on the physical injury issue, reasoning that Marmo could not present necessary medical causation evidence, in light of the denial of re-designation and the in limine ruling relating to Dr. Ammann. However, the district court denied summary judgment on the negligence claim, concluding that issues of fact remained concerning when the applicable four-year limitations period commenced.

Trial occurred in February 2005. During opening statements, IBP's counsel remarked that no physician would testify about Marmo and her health. The next day, Marmo objected to the statement, arguing that it created a false inference that no medical evidence existed to support her claims. To rebut the inference Marmo requested that Dr. Meggs testify in her case-in-chief or that she elicit testimony from IBP's experts. The district court denied the request. Thereafter, Marmo attempted to call Dr. Meggs as a rebuttal expert. However, the district court refused to allow Dr. Meggs to testify, reasoning that IBP had presented no evidence for Dr. Meggs to rebut.

During trial, Marmo admitted that she was aware in the early 1990s of her alleged difficulties with hydrogen sulfide and linked her symptoms to emissions from IBP. Accordingly, the district court granted a directed verdict for IBP on Marmo's negligence claim, finding that the statute of limitations had run well before Marmo filed suit in September 2000.

Marmo's nuisance claim for the four-year period preceeding September 2000 was submitted to the jury, which returned a verdict of $17,500.00 for Marmo. The district court then awarded Marmo $23,006.56 in costs.

A. Denial of Leave to Amend to Add an Unjust Enrichment Claim

Marmo sought leave to amend her complaint to add an unjust enrichment claim based on the theory that IBP unjustly profited from its failure to install adequate pollution control equipment. The district court denied leave, reasoning that the attempt was futile because Nebraska law did not recognize an unjust enrichment claim based on the theory advanced by Marmo.

A district court should grant leave to amend freely "when justice so requires." Fed.R.Civ.P. 15(a). However, denial of leave to amend may be justified when the amendment is futile. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 557-58 (8th Cir.2006) (citing United States ex rel. Gaudineer & Comito, L.L.P. v. Iowa, 269 F.3d 932, 936 (8th Cir.2001)). Although we review a denial of leave to amend for an abuse of discretion, we review de novo the underlying legal conclusion of whether the proposed amendment to the complaint would have been futile. Id. at 555 (citations omitted).

An unjust enrichment claim embodies the equitable doctrine that one will not be allowed to profit or enrich oneself unjustly at the expense of another.3 Hoffman v. Reinke Mfg. Co., 227 Neb. 66, 416 N.W.2d 216, 219 (1987) (citing Haggard Drilling, Inc. v. Greene, 195 Neb. 136, 236 N.W.2d 841, 845 (1975)). When the inequitable and unconscionable retention of a benefit occurs, Nebraska law requires the recipient to pay for the reasonable value of the benefit received. Bush v. Kramer, 185 Neb. 1, 173 N.W.2d 367, 369 (1969). "Unjust enrichment requires restitution, which measures the remedy by the gain obtained by the defendant, and seeks disgorgement of that gain." Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807, 834 (2004) (citations omitted). Thus, a defendant will be liable for the unjust benefit it receives — and not the harm sustained by the plaintiff. Id. at 834-35 (citation omitted).

Marmo admits that neither the Nebraska Supreme Court nor the Nebraska Legislature has recognized an unjust enrichment claim based on a pollution easement theory, but nonetheless argues that Nebraska case law supports her claim. Nebraska courts have recognized an unjust enrichment claim to allow a purchaser who made valuable improvements to a property to recover the reasonable value of the improvement. See McIntosh v. Borchers, 201 Neb. 35, 266 N.W.2d 200, 203 (1978). They have also recognized an unjust enrichment claim to require payment for land use when an individual disavowed an obligation to pay for the use. Bush, 173 N.W.2d at 369.

However, no Nebraska state court has recognized a negative unjust enrichment claim based on the pollution easement theory, which seeks disgorgement of profits unjustly saved by a polluter.4 Rather, Nebraska courts focus on how the pollution injures the plaintiff, and that claim is properly brought under the law of nuisance. See Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478, 486 (1998); Karpisek v. Cather & Sons Constr., Inc., 174 Neb. 234, 117 N.W.2d 322, 326-27 (1962). There is no indication that the Nebraska Supreme Court would recognize an unjust enrichment claim on the facts of this case. Thus, the proposed amendment would have been futile, and the district court did not err in denying Marmo leave to amend the complaint.

B. Dismissal of the Negligence Claim

The district court found that Marmo learned of the irritant effects of hydrogen sulfide and linked her symptoms with the emissions from IBP by November 1994. Because Marmo did not commence her action until September 2000, the district court directed a verdict on the negligence claim, finding it barred by the statute of limitations.

We review the grant of a motion for directed verdict de novo. Randall v. Federated Retail Holdings, Inc., 429 F.3d 784, 787 (8th Cir.2005) (citations omitted). A directed verdict is appropriate "if during a trial by jury a party has been heard on an issue and there is no legally...

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