Stevenson v. E.I. Dupont De Nemours & Co.

• Decision Date: 03 April 2003
• Docket Number: No. 02-40569.,02-40569.
• Parties: H.E. STEVENSON, et al., Plaintiffs, H.E. Stevenson, Dianna Stevenson, and Sharon Harper, Plaintiffs-Appellees, v. E.I. DuPONT DE NEMOURS AND COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

327 F.3d 400

H.E. STEVENSON, et al., Plaintiffs, H.E. Stevenson, Dianna Stevenson, and Sharon Harper, Plaintiffs-Appellees, v. E.I. DuPONT DE NEMOURS AND COMPANY, Defendant-Appellant.

No. 02-40569.

United States Court of Appeals, Fifth Circuit.

April 3, 2003.

COPYRIGHT MATERIAL OMITTED

Waren Todd Hoeffner, Hoeffner, Bilek & Eidman, Houston, TX, for Plaintiffs-Appellees.

Russell Joe Manning, Hornblower, Manning & Ward, Corpus Christi, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DeMOSS and STEWART, Circuit Judges, and FALLON, District Judge.¹

DeMOSS, Circuit Judge:

Before the Court is the appeal of Defendant-Appellant E.I. DuPont De Nemours & Co. ("DuPont") from a jury verdict finding the defendants liable for trespass on the Plaintiffs-Appellees' property. The Plaintiffs-Appellees in this case are H.E. Stevenson, Dianna Stevenson, and Sharon Harper (referred to collectively as "Plaintiffs"). Carried with DuPont's appeal is the Plaintiffs' motion for recovery of damages and costs under F.R.A.P. 38. The Plaintiffs brought suit against DuPont alleging that its Victoria, Texas, plant emits heavy metal particulates, which contaminated the Plaintiffs' properties located nearby and affected their health as well as the health of their animals. Their theories of recovery included negligence, nuisance, and trespass. Following a six-day jury trial, the jury found for the Plaintiffs only on the trespass theory and awarded the Stevensons $168,000 and Harper $96,000 in damages for the diminished value of their property.

DuPont appeals challenging the sufficiency of the evidence of the jury verdict. It contends first that, as a matter of law, the Plaintiffs cannot recover for trespass based on contamination by airborne particulates. Second, appellant asserts that the Plaintiffs' evidence of causation was insufficient to show that DuPont's factory emissions actually contaminated the Plaintiffs' properties. Finally, it alleges that the Plaintiffs presented insufficient evidence regarding damages for the diminution of property values.

Plaintiffs, in response, have moved for damages and costs as a result of a frivolous appeal. Specifically, the Plaintiffs contend that DuPont's challenges regarding the causation evidence are actually Daubert challenges regarding the admissibility of the evidence, and, because the defendant waived its Daubert challenge during a hearing on the matter, this Court cannot now review these findings. Second, Plaintiffs argue that DuPont's point of error on evidence of a temporary trespass as opposed to permanent trespass was waived when DuPont failed to request that the Court submit such an issue to the jury.

For the reasons set forth below, we AFFIRM the district court's denial of DuPont's motion for judgment as a matter of law. We REVERSE the jury's award for damages, and REMAND for a new trial on damages.

BACKGROUND & PROCEDURAL HISTORY

H.E. and Dianna Stevenson purchased 28 acres of land in Victoria, Texas in 1970 or 1971. Mr. Stevenson built a house on the property, and the family moved into that house in 1976. Mr. Stevenson used the property primarily to raise race horses. Sharon Harper purchased 16 acres of land approximately a block to block-and-a-half from the Stevensons' property in 1982. She resides in a house on the property, along with her daughter, who lives in a separate house on the property. During her time on the property, she raised cows, horses, goats, chickens, and various other animals.

DuPont opened a petrochemical plant in Victoria, Texas, in 1951. The plant is approximately one and one-half miles from the Plaintiffs' properties, which are the closest lands to the plant. The plant produces "intermediate products" for shipping to offsite customers. Throughout its operation, the plant has emitted heavy metals as a result of burning hazardous waste. The emissions from the factory contain barium, cerium, chromium, copper, lead, manganese, and zinc.

In January 2001, the Plaintiffs filed suit against DuPont for contamination of their person, property, and livestock. Their theories of recovery were negligence, nuisance, and trespass. During the trial,² James Miller, DuPont's environmental consultant, testified as the employee most knowledgeable about the air emissions from the stacks. He admitted that all air dispersion reports, including DuPont's, showed that the Plaintiffs' properties were within the maximum level of impact for emissions from DuPont's factory. This dispersion modeling showed that the emissions were most heavily concentrated in the air over the Plaintiffs' properties.

Michael Stringer was offered as the Plaintiff's expert on soil sampling. He collected samples from the Stevensons' property, including a sample of dirt from their roof, and he also collected soil samples from DuPont's plant and from a background source about 25 to 30 miles from the plant. He testified that concentrations of heavy metallic particles were higher on the Stevensons' property than on the DuPont's property and much higher than on the background property. Further, the types of metals found on the ground matched those emitted by DuPont. Dr. Edwin Smith also testified for the Plaintiffs regarding soil and roof samples taken from the Stevensons' property. He opined that the metallic concentrations on the roof were higher than the concentrations on the ground, indicating that the cause of the contamination was airborne in nature. No soil samples were taken from Mrs. Harper's property, and Stringer testified that he did not analyze the samples collected on her roof because it was metallic and would contain metallic particles anyway.

Mr. Stevenson testified that he had continuous upkeep problems at his house because the paint would keep peeling off, and his window screens continually corroded. Sharon Harper testified that she had continuous rust problems on her roof and pipe fence, with the worst corrosion being on the side facing the DuPont factory.

To prove damages, the Plaintiffs offered the testimony of John Fox, a real estate appraiser. Fox based his opinion solely on a letter provided by the executive director of the Port of Victoria Industrial Park regarding the range of prices available for land in the same area as the Plaintiffs. The letter stated that property in the area sold for approximately $10,000 to $15,000 per acre. Fox then "placed that same range on the Stevenson property, which would be 10 to 15,000 per acre." He then applied the same range to value Mrs. Harper's property. The defendant's expert conducted an appraisal of the properties in this case and concluded that the Fox's appraisal should be discounted approximately 40 percent.

At the conclusion of the trial, the jury returned a partial verdict in the Plaintiffs' favor. The jury found that DuPont was not negligent, and that its actions did not constitute a nuisance. The jury did find that a trespass had occurred on the Plaintiffs' lands, but did not find that the trespass was willful or wanton. The jury further denied recovery for the Plaintiffs' physical pain and mental anguish as well as for injury to their animals, but the jury did award the Stevensons $168,000 and Harper $96,000 for "the difference in the market value of the property ... immediately before and after the damage ... proximately caused by DuPont's operation of the Victoria Plant."

The District Court entered judgment in favor of the Stevensons and Harper in these amounts. DuPont promptly moved for a new trial and judgment as a matter of law, and the District Court denied the motions. DuPont then timely appealed to this Court to review the sufficiency of the evidence.

DISCUSSION

I. Whether the district court erred in denying DuPont's motion for judgment as a matter of law.

This Circuit reviews de novo the district court's ruling on a motion for judgment as a matter of law. See Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 280 (5th Cir. 2002). However, when an action is tried by a jury, such a motion is a challenge to the legal sufficiency of the evidence supporting the jury's verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir.2000). Accordingly, the Court should consider the evidence "drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party." Id. Furthermore, the Court's "standard of review with respect to a jury verdict is especially deferential." Id. Thus, reversal is proper "only if no reasonable jury could have arrived at the verdict." Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.1998).

DuPont argues that a trespass traditionally requires a direct and physical invasion by tangible matter onto another person's property, while a cause of action for nuisance requires a showing of indirect invasion and intangible intrusion. DuPont relies on Adams v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215 (1999), to support its claims that the intrusion of airborne particles onto Plaintiff's land does not constitute a trespass. Adams, a Michigan case, declined to follow recent Michigan case law expanding the tort of trespass and held that the invasion of dust particles was not sufficient evidence of trespass because these particles do not present a "significant physical intrusion." Id. at 223. Defendant contends that this traditional view of trespass law would preclude Plaintiffs' recovery.

The current case law that Adams rejected in reaching its decision does hold that a trespass occurs when particulate matter is present on another's property; however, those cases also modify "traditional" trespass law by requiring "substantial damage to the res." J.H. Borland v. Sanders Lead Co., 369 So.2d 523, 530 (Ala.1979). See also Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 709 P.2d 782, 791 (1985) (adopting the holding of Borland...