Petition for Writ of Certiorari — Cooper v. Armstrong Rubber Co.

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States

October Term, 1993

J. WESLEY COOPER, MARGARET COOPER

and JAMES CARTER

Petitioners

THE ARMSTRONG RUBBER COMPANY

Respondent

PETITION FOR ISSUANCE OF A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STUART H. SMITH

Counsel of Record

200 BROADWAY # 226

New Orleans, LA 70118

(504) 866-8200

Jack W. Harang

1001 Howard Ave., Suite 3710

New Orleans, LA 70118

Council for Petitioners

December 19,1993

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether The Comprehensive, Environmental Response,

(ompensation and Liability Act, 42 U.S.C. § 9601 et. Seq., requires

that a plaintiff who Sustains response costs must own the con-

taminated property in order to recover costs under the act?

district Courts summary dismissal of petitioners claims in direct

contradiction to one hundred years of state law jurisprudence?

ili

TABLE OF CONTENTS

STATEMENT OF THE ISSUES. ...........:scccsccssecsscsssessossseeeeesseeeeccceeen.. i

TABLE OF AUTHORITIES. ..00....0..c.ccccccsssessssscsssesocssseeseeeesseecccc iv

sd setts tars IS a 1

STATEMENT OF JURISDICTION. .........c-cscesssssesscsseoeseeeeeeeeceeccccn.. 1

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED....0........ccssccscesescsssssssessssesccseccoseesoeseccceg.. ]

STATEMENT OF THE CASE. ..0.....0..sscscsssssesssssessssecceseceeeeeceeccccecc. 3

REASONS FOR GRANTING THE WRIT ..-..e-cccccsssssecseeeecsseeccess... 16

I. THIS COURT SHOULD DECIDE WHETHER FEDERAL

COURTS POSSESS INHERENT JUDICIAL POWER TO ALTER

ACTS OF CONGRESS, TO IGNORE EVIDENCE, AND, IN A

DIVERSITY CASE, TO ERADICATE 100 YEARS OF STATE

Se I PEE oo ccecsseesscieese cstsoevensibndesse Nosesesils. 16

Il. THE FIFTH CIRCUIT IGNORED LEGISLATIVE INTENT

AND ENGAGED IN JUDICIALLEGISLATION IN DISMISSING

PETITIONERS RESPONSE COST CLAIMS UNDER

COBR-C.L.A (42 U.S.C. §9601)..........ccccsscccsvesessesscceeesoeeeseeeesccecc.... 17

Ill. THE FIFTH CIRCUIT APPLYING A RESULT ORIENTED

DECISION MAKING PROCESS ERRONEOUSLY DETERMINED

THAT RESPONDENTS WERE ENTITLED TO A JUDGMENT,

AS MATTER OF LAW, ON PETITIONERS STATE LAW CLAIMS

AND ERRONEOUSLY REFUSED TO GRANT THE RELIEF RE-

QUESTED IN THE PETITION FOR REHEARING EVEN AFTER

BEING CONFRONTED WITH THE REALITY THAT MOST, IF

NOT ALL OF IT’S FACTUAL AND LEGAL FINDINGS WERE

NOT SUPPORTED BY THE RECORD OR THE JURISPRU-

Neda cisseesivevrer basiastrivoseseseesevevreecieeenencinec oman, 22

TABLE OF AUTHORITIES

Cases

Amoco Oil Co. v. Borden, Inc. 889

I Sc cesuhempnenebnciin 12,18

Anderson v. Liberty Lobby Inc.,477 U.S.

y RRR EAN Rist See REA cn 01 nC 12,23

Binum v. Mandrel Industries, 241 So.2d

gg RRR Oct RI Se ce CE 25

Brock v. Merrell Dow Pharmaceuticals, Inc.

Fe ee ae Hirde ihseittiteareecticceinnnescisncisdtenees 16

cert. denied 494 U.S. 1046 (1990)... cece 16

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...........cccccceee 23

Central Oi! Co. v. Shows, 149 So.2d 306 (1963).............. 13, 24

Christopherson v. Allied-Signal Corp., 939

Ee ane ea 16,17

cert. denied 112 S.Ct. 1280 (1992)..00...00ccccceceeeeeeeeeeee 16

City of Jackson v. Filtrol Corp., 624 F.2d

Fee Re i csdaaiets ecsapainicercascbicssteotendncsensincnvisuconene 13, 24

City of Oxford v. Spears, 87 So.2d 914 (1956)...........cccceee 13

City of Philadelphia v. Stephan Chem. Co.,

eo BO Ty: 21

Cochran v. Consumer’s Wirebound Box Co.,

ge RE R COO ae eee cee 13, 24

D & W Jones, Inc. v. Collier, 372 So.2d 288

MARS ee nnn ae on Se oN 24

Daubert et ux v. Merril Dow, -U.S.-, 113 U.S. S.ct

RRA rere err roe Seat aR a ee RF 13,14

Dedham Water Co. v. Cumberland Farms

Dairy, 889 F.2d. 1146 (1st. Cir. 1989)... eects 19

Dennery v. Hughes, 59 So.2d 316 (1952)...........:.ccccceseeeeseeees 13

Edge v. City of Booneville, 83 So.2d 801

ah HL READY 22 SCRE la eR OORT 25

Erie Railroad v. Thompkins, 304 U.S.

ial See aa a, SIROTA SOO IER SS NASR Ee 23

TABLE OF AUTHORITIES

Cases

Jackson v. John-Mansville Sales Corp.,

727 F.2d 506 (5th Cir. 1984)

cert. denied, 478 U.S. 1022 (1986)............cccceecceeeeeeeeenes 24

Kelly v. Thomas Solvent, Co., 727 FSupp

ee I cdiiiccrsiset nanseesininianitnasponerearnepeneenecnangins 21

Love Petroleum, Co. v. Jones, 205 So.2d

ik siiaalar venindidiialaiaicehiaiasiiieabaiiaapaaramticeionnscornentiate 13,24

Maples v. Quinn, 64 So.2d 711, 712 (Ms. 1953)... 26

Masonite Corp. v. Burnham, 164 Ms.

840,858-860, 146 S0.613, 614 (1936)............cceeeeeeeeeeereeeeeees 13

Masonite Corp. v. Dennis, 168 So.613 (Ms. 1936)........... 13, 25

Masonite Corp. v. Steede, 23 So.2d 756 (Ms. 1945)........ 13, 25

Mississippi Mills Company v. Smith, 69

Ms. 299, 303-305, 11 So. 26, 27 (1891)................sseeceeeee 13, 25

New Orleans & N.E.R. Co. v. Burge,

Fe iia etetissnnscntcrreconivenenssnsedtdiesmaneney 24

Oliver v. Miles, 110 So. 666, 50 ALR 357

Ns Bee cick taree arerianhalsicacssuionkencasiespionitonienmearatel 24

Osburn v. Anchor Laboratories, Inc.

825 Fed. 2d 908 (5th Cir. 1987)

cert. denied 485 U.S. 1009 (1989)..........cccceeeeeeeeeeeees 16

New York v. Exxon Corp., 766 F.Supp

177 CEERI, TOPE) a sccrccneresaretesecmanineveinnionssateensccsnestevensmionsvess 20

Perry v. Jones, 43 So.2d 565 (MS. 1949)........ccccsscesseseeereneneneeeans 26

Philadelphia Electric Co. v. Hercules Inc.,

762 E28 SOB Bed. CHE, TI cccreccccvsscosenstoscoerstsecersceenscootanes 13

Phillip v. Davis Timber Co., 468 So.2d 72 (1985)..........-+ 13

Planter’s Wholesale Grocery v. Kincade,

SO S0.2d 57GB (Milas. BIST). ceccesscensesverccnrssasessresssorncesenerneonears 24

Shutes v. Platte Chemical Co., 564 So.2d

FR siciccccccnminnnaninannnademaaadaaimnamdliel 13

TABLE OF AUTHORITIES

Cases

State ex rel Brown v. Georgeoff, 562

FSP TSOOCIN.D. Of io 1963)....ccccssnscressscorsecererescnssoseseneese 21

Randolph v. Laeisz, 896 F.2d 964

SR RN a eee eL Mie eT DR em A 16

United States v. Alcan Aluminum,

990 F.2d 711 (2nd Cir. 1993)

964 F.2d 252 (3rd Cir. 1992)

PPE F Bg FEE GNU: Gee BOD iecciccsorscssencvesesepsonesnsscveninen 20

U.S. v. Hardage, 733 FSupp 1424

I Sra ischcntvnscnnsinnsanisnnigresscdetevesqenmvesieuiedithinis 18, 21

United States v. Hardy, 733 Fed. Supp.

ETT iiniirinkanencsesenisenintpineibinde cmsoonentonisebevieesenieuspiindnssieguibiie’ 11

US. v. Marisol, Inc. 725 F.Supp. 833

Ey I naekcsivconveunsbapigiiatiedinmnnsdedarenesenionanaasiesinensiiediioes 18

Vitterbro v. Dow Chemical Company, 646

i. he) et ® ._ ; REE eeraerarenEen 16

Violet v. Picalo, 684 Fed. Supp. 1283 (R.1.1986)............cccceee 11

Walls v. Waste Resource Corp., 761 F.2d. 311

SERS SEIN Sa REE Nene 21

Washington v. Armstrong World Industries,

Ook piri | S| ee 16

Wellesley Hills Realty Trust v. Mobil Oil

Corp., 747 F.Supp 93 ( D. Mass. 1990)... 21

Young v. Weaver, 32 So.2d 202 (1947)..........cccccseescseceeeeeeeees 13

Rules, Regulations and Constitutions

Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C §9601 et. seq... 1,3, 17

Federal rule of Civil Procedure 56..................c0cc0008- 2, 8, 9, 10

Vil

Rules, Regulations and Constitutions (Cont.):

Mississippi Code Anmnot. § 17-17-17........:ccccccescesseecesseeseeeees 26

United States Constitution Amendment Seven........... 2, 23

Miscellaneous

A legislative history of the Comprehensive Environmen-

tal Response, Compensation and Liability (Superfund)

Act of 1989, 8 Colum. J. Envtl. L.1 (1982).......... eee 18

Recovery of Hazardous Waste Cleanup Costs: ThePrivate

Right of Action Under ERCLA, Ecology Law Quarterly,

Titi DUE sosexsiniinrstashishesssineasintaeiinsinapiacremnmmmienaeionanicnaaaniamncdaad 21

Common Law Remedies for Environmental Wrongs:

The Role of Private Nuisance, 59 Miss. Law Journal

Shinn csinincisastintiaicbintaevensehiotnancaneadaidaietiaainnaalisniany 25

OPINIONS BELOW

The opinion of the United States Court of Appeal for the Fifth

Circuit, affirming the District Court’s grant of summary judg-

ment for respondent, is reported at 989 F.2d 822, and is reprinted

as Appendix A, at page A1. (References to the Appendices bound

with this Petition are styled “A___”). The memorandum deci-

sion and order of the United States District Court for the South-

ern District of Mississippi, from which Appeal was taken, was

not reported and is reprinted as Appendix B, beginning at page

Al5.

JURISDICTION

The decision of the Court of Appeals was announced on Ma y

3, 1993. A timely petition for rehearing was denied on September

20, 1993. The jurisdiction of this Court is invoked under 28 US.C.

§ 1254(1).

STATUTORY AND CONSTITUTIONAL PROVISIONS

Comprehensive Environmental Response, Compensation, and

Liability Act. P.L. 96-510 Title 1, Section 101 (1980), 42 US.C

§9601 et. seq.

§ 9601(14) Hazardous Substance means, (A) any substance des-

ignated pursuant to Section 1321(B)(2)(A) of Title 33, (B) any ele-

ment, compound,mixture, solution, substance designated pur-

suant to Section 9602 of this title, (C) any hazardous waste hav-

ing the characteristics identified under or listed pursuant to Sec-

tion 3001 of the Solid Waste Disposal Act [42 USCA Section 6921]

-. any toxic pollutant listed under Section 1317(a) of Title 33, (E)

any hazardous air pollutant listed under Section 112 of the Clean

Air Act [42 USCA Section 7412], and (F) any imminently hazard-

ous chemical substance or emission with respect to which the

administrator has taken action pursuant to Section 2606 of Title

§ 9607 (3) any person who by contract, agreement, or otherwise

arranged for disposal or treatment... of a hazardous substance

owned or possessed by such person . . . from which there is a

release, or a threatened release which causes the incurrence of

response costs, shall be liable for (B) any other necessary cost of

response incurred by any othe: person consistent with the na-

tional contingency plan.

The Seventh Amendment to the United States Constitution

provides that:

In Suits at common law, where the value in controversy shall ex-

ceed twenty dollars, the right of trial by jury shall be preserved,

and no fact tried by jury, shall be re-examined in any Court of the

United States, than according to the rules of the common law.

The Rules of Decision Act, 28 U.S.C. §1652 (1988) provides, in

relevant part:

§ 1652. State laws as rules of decision.

The laws of the several states, except where the Constitution

or treaties of the United States or Acts of Congress otherwise re-

quire or provide, shall be regarded as rules of decision in civil

actions in the courts of the United States, in cases where they

apply.

Rule 56 of the Federal Rules of Civil Procedure provides, in

relevant part, that:

pleading, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. . .

(e)... When a motion for summary judgement is made and sup-

ported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of the adverse party’s plead-

ing, but the adverse party’s response, by affidavits or otherwise

provided by this rule, must set forth specific facts showing that

there is a genuine issue for trial. If the adverse party does not so

respond, summary judgment, if appropriate, shall be entered

against the adverse.

STATEMENT OF THE CASE

1. Petitioners sought relief pursuant to the Comprehen-

sive Environmental Response, Compensation and Liability

Act, 42 U.S.C. §9601, et seq., and under the common law of

the State of Mississippi for response costs and damages oc-

casioned by the uncontrolled release of hazardous and toxic

chemicals into the open environment « f Adams County,

Miss. The facts leading to the lawsuit are undisputed. These

releases indisputably contained hazardous substances and

occurred over a forty year period. The petitioners estab-

lished that they had incurred response costs and were en-

titled to a declaratory judgment pursuant to 42 U.S.C.

§9613(g)(2).

2. The petitioners by way of affirmative proof, present

in the record, established that there had been a release of a

“hazardous substance”, that the defendant was the “re-

sponsible party”, that the site constituted a “facility” and

that petitioners had sustained “response costs.” The peti-

tioners also presented to the Court by way of direct and

expert testimony the following facts: The defendant's haz-

ardous waste stream was admittedly dumped at the Cain,

Carter and Batieste sites. Hazardous substances as defined

by the Comprehensive, Environmental Response Compen-

sation and Liability Act have been identified in soils, sedi-

ments, ground water and surface water on and adjacent to

the sites. Petitioner Carter is the owner of the Carter Haz-

ardous Waste Site.

3. The same compounds in elevated concentrations have

been identified in surface water running through the Coo-

per homestead and in the homesteads well water. As a re-

sult of the investigation conducted and paid for by Mr. Coo-

per, it was learned that Armstrong, at times in direct viola-

tion of the law, had dumped in excess of one million

(1,000,000) pounds of hazardous wastes into these sites. The

Mississippi Department of Environmental Quality (formerly

the Mississippi Bureau of Pollution Control and hereinaf-

ter referred to as the Mississippi DEQ) has documented that

CERCLA hazardous substances have been released at these

sites. In fact, according to internal documents of the Mis-

sissippi Department of Environmental Quality it has been

determined that the sites meet “superfund category status”.

Further, the Mississippi DEQ has reported these sites to the

U.S. Environmental Protection Agency as potential uncon-

trolled hazardous waste sites.

4. Mr. Cooper upon discovering the contamination, im-

mediately reported the sites to Mississippi DEQ who began

their own investigation. Mr. Cooper also participated in

the investigation by organizing digs with heavy equipment

to remove buried waste and having testing done by ana-

lytical chemists. Mr. Cooper incurred and paid thousands

of dollars in costs associated with earth moving equipment

used to dig up contaminated soils and drums and analyti-

cal testing.

5. There is overwhelming evidence in the record that

wastes from the Cain, Carter, and Batieste sites have trav-

eled offsite into cemetery bayou which contaminated Coo-

per property. The following tables illustrate just some of

the particularized findings present in the record which estab-

lishes that hazardous and toxic substances have invaded the

Carter and Cooper properties. The following tables based

directly on data summaries compiled by the Mississippi

DEQ and petitioner's expert analytical chemist, Mrs. Wilma

Subra, completely refutes the factual basis for the Court’s

dismissal of the Cooper plaintiffs common law and CERCLA

claims. These results are all independently admissible and

not subject to a Rule 703 attach.

PETITIONER COOPER DATA:

eee eee NS

Above

Location | Compound Amount | Background Y/N

Hazardous At or Above EPA

Stina * Standards

Yes/no Y/N

Cooper Cadmium 10,20 Y

Well Y ug/l Y

Cooper Mercury 3 ug/l Y

Well Y Y

Cooper Selenium 30,17. 1 Y

Well Y ug/l Y

Cooper Arsenic 12,12 Y

Well Y - 6,3 ”

ug/l

Cooper Phenol 100,1. 2 Y

Well Y ug/l ?

Cooper Benzene 2480 Y

Well Y ug/l Y

Cooper Arsenic 70,73 Y

Stream Y ug/l Y

Cooper Cadmium 10,20

Stream Y ug/l

Cooper Lead 50,42 J

Stream Y ug/l Y

Cooper Selenium 42.8 Y

Stream Y ug/l Y

Cooper Benzene 551 Y

| Stream Y u Y

DATA SUMMARY BY MISSISSIPPI DEPARTMENT OF ENVI-

RONMENTAL QUALITY AND MRS. WILMA SUBRA;* 40 CFR

§302.4 table, ALL COMPOUNDS ALSO PRIORITY TOXIC POL-

LUTANTS ; **40 CFR §141.32(e),§141.63

ETIT X A:

Location Above Background Y/N

| oe Amount | tor Above EPA

Yea/ne Standards **

Y/N

Carter Arsenic 50 Y

Carter Barium 910 Y

Soil Y mg/L Y

| Carter Cadmium 1.69 Y

Soil Y mg/L Y

Carter Chromium 134 ¥

| Soil Y mg/L Y

| Carter Lead 294 Y

Soil Y mg/L Y

| Carter Arsenic 275, 70 Y

| Drum Y mg/L Y

Samp.

Carter Barium 160, 140 Y

| Drum Y mg/L Y

| Samp.

| Carter Cadmium 1.69 Y

Drum Y mg/L Y

Samp.

Carter Chromium 101 Y

} Drum Y mg/L Y

Samp.

Carter Lead 161,7 Y

Drum Y mg/L :

Samp.

*40 CFR §302.4 table,(toxic waste) ALL COMPOUNDS ALSO

RCRA HAZARDOUS WASTES (40 CFR §261.33) and PRIORITY

TOXIC POLLUTANTS

** 40 CFR § 261.24

PETITIONER CARTER HAZARDOUS SUBSTANCE

DATA:

Location Compound

Carter Soi! Acetone

| Carter Soil Ethyl benzene

Carter Stream Chloroform

Sediment,Drum

Contents.

Carter Stream Toluene

Sediment,Drum

Contents.

Carter Soil, Chrysene Yes

Stream Sediment,

Drum contents

arter Drum Benzo(a)pvrene Yes

cont.

Carter Drum Benzo(ghi)per Yes

cont. ylene

Carter Drum Nitrodiphenyl Yes

cont. amine

Carter Drum Xylene Yes

cont.

*40 CFR §302.4 table

5. Respondent Armstrong filed a motion for summary

judgment on all issues in the case pursuant to F.R.C.P. 56(c)

accompanied by requests to strike petitioners expert wit-

nesses pursuant to E.R.E. 703. Respondent argued that the

levels of pollution which had been discovered did not pose

a public health threat. Armstrong at no time argued that no

hazardous substances were dumped at petitioner Carters

farm. Armstrong also at no time contested the qualifications

of the plaintiffs experts.

6. Petitioners presented the District Court with the fol-

lowing expert testimony in opposition to the motion for

summary judgement:

Dr. George, director of toxicology at Tulane Medical center

stated:

“Mr. Wesley Cooper’s well water and the stream sample at

his property site contained non-natural amounts of natural

substances, some of which are known to cause cancer. These

compounds are part of the Armstrong R's * Waste Stream

as identified in an internal memorandum “som Armstrong

and are found at the Cain, Carter and Batieste sites... That

after personally visiting and viewing the sites, observing

rusted barrels containing wastes being excavated at the

Carter site and reviewing test results of other samples from

the sites there is no doubt in my mind that hazardous, toxic

and/or carcinogenic compounds were released into the en-

vironment by Armstrong rubber Company at the Cain,

Carter and Batieste sites.”,'(emphasis added).

! Dr. George testified in his deposition that, the finding of these hazar dous

substances at the Cain, Carter and Batieste sites, the finding of the same sub-

stances in monitoring wells, stream samples, stream sediments and in Mr.

Cooper’s well, lead him to the logical and inescapable conclusion that the gr ound

water had been impacted by these sites and that Mr . Wesley Cooper ‘s well con-

tained remnants of the defendant's hazar dous waste stream.

A review of Dr. George’s deposition would establish that at the Carter

site,”arsenic and chromium were above the EPA toxic values in soil.” Dr. George

also testified that the sediment in the Cemetery Bayou which flows thr ough

Mr. Cooper's plantation, contained chlor oform, methylene chloride, toluene,

Mrs. Wilma Subra, an analytical chemist, performed test-

ing at the sites and reviewed the analytical data compiled

by both parties and the State of Mississippi. Mrs. Subra re-

lying on this hard data, which is independently admissible

and not subject to a Rule 703 attack, stated unequivicobly

that Hazardous substances and wastes were deposited on

petitioner Carters farm.2

Dr. Ralph Pike, an assistant vice-chancelor at Louisiana

State University, and a chemical engineer confirmed Mrs.

Subra and Dr. Georges opinions as to property contamina-

tion of the plaintiffs properties.

chloral benzene, xylene. Dr. George testified that these are above the EPA stan

dards. Dr. George found at the Cain site, the following cancer causing agents:

benzopyrene, chloroform, methylene chloride, naphthalene, nitr odisomines,

arsenic, cadmium, chromium, lead, which exceeded the EP A toxic standard.

Dr. George further testified that arsenic, chr omium and nickel were found in

monitoring wells around the site. Dr. George found that the presence of these

compounds at the sites and in the water wer e a significant problem because the

people in the area drink ground water through their wells.

Dr. George specifically discussed which of the compounds he felt had mi-

grated to the ground water. Dr. George felt that the presence of these compounds

at the site and in the ground water, especially since some wer e known to cause

cancer, were of serious concern and that significant amounts of said chemicals

were present at the Carter and Cain sites. He specifically described how at the

Cain site, chromium was found twenty times higher than the EP A standard. R-

Vol. 8, page 3006. Dr . George unequivocally stated that the tested sites wer e

dirty and had to be cleaned up. The defendants ar e unable to refute these facts.

2 In her affidavit Mrs. Subra stated, “As a chemist who has r eviewed all the

pertinent testimony, test results and personally viewed the sites in question,

there is no question in my mind that ther e has been a release of hazardous, toxic

and carcinogenic compounds at the Cain, Carter and Batieste sites. The perti

nent testimony in question and the undisputed test r esults and facts establish

conclusively that, in fact, the Armstrong Waste Stream contained hazardous,

toxic and carcinogenic chemicals and that said chemicals wer e deposited at the

Cain, Carter and Batieste sites. Therefore, any decision to the contrary would

not be supported by the record as I have reviewed it.”

3 Dr. Pike testified in his Rule 56(e) af fidavit as follows: “As a chemical engi-

neer who has reviewed all the pertinent testimony , test results and personally

viewed the sites in question, there is no question in my mind that there has

been a release of hazardous, toxic and carcinogenic compounds, at the Cain,

Dr. Aughenbaugh, a full professor of geological engi-

neering at the University of Mississippi confirmed that the

hazardous wastes which were openly dumped by respon-

dent have reached the ground water. He confirms that these

hazardous substances have impacted the Cooper home-

stead.4

The Petitioners also provided the Court with the affida-

vit and appraisal of Mr. William Upchurch a licensed real

estate appraiser who testified that the Carter farm and the

Cooper homestead had sustained property damage and

devaluation as a result of Respondents pollution. Respon-

dent produced no expert reports and no evidence to contra-

dict this opinion.

7. On this record the District Court granted summary

judgment and entered a final judgment dismissing petition-

ers claims with prejudice. The District Courts primary

ground was that all of the Plaintiffs expert testimony was

Carter and Batieste sites. . . to my knowledge, the defendants, nor BPC have

ever disputed these facts.”

4 Dr. Aughenbaugh in his Rule 56(e) af fidavit stated: “The probable paths of

the pollutants as described above ar e supported by the scientific literatur e and

basic hydrogeologic principles. The movement of water and liquids fr om the

surface to the subsurface takes many dif ferent routes. The fact that Cooper ’s

well water when tested has shown pollution by many dif ferent elements that

are confirmed to be present at the Carter, Cain and Batieste dump sites defi-

nitely establishes the pollutants have migrated by one or mor e of the routes

outlined above from the dumps to the well. No amount of modelling based

upon a multitude of assumptions not relevant to the hydrogeology can prove

otherwise...The issue now is not if the hazar dous wastes dumped at the Cain,

Carter and Batieste sites have caused pollution of the gr oundwater and the

wells being supplied from it but rather what has been the magnitude of this

pollution. Armstrong Rubber Company reportedly has been doing uncontr olled

dumping at the Cain, Carter and Batieste sites from about 1943 to 1971. The

company produced approximately 1 ton of hazar dous wastes a month and much

waste oils. These waste materials wer e regularly taken to the sites and dumped

The magnitude of the wastes dumped is tremendous. Much of these wastes

were liquids that immediately would start flowing down the bayous or per co-

late into the Losses.”

inadmissible under the Federal Rule of Evidence 703 and

that Plaintiffs had failed to prove sufficient contamination

to establish a public health threat. (A38). The District Court

in dismissing the Plaintiffs property damage claims found

that the ground water was not contaminated and that the

sites did not indicate a public health threat existing in the

use and consumption of the area ground water. “The Court

thus concludes that Upchurches assumption of hazardous

waste and contamination of the Carter property are not ad-

missible”. (A35). The District Court, ignoring the testimony

and affidavits of Plaintiffs expert toxicologist, chemist, and

chemical engineer dismissed plaintiffs common law prop-

erty damage, nuisance, and trespass claims. (A36).

8. Thus, the District Court ruled that Petitioners could

not state a cause of action for negligence, nuisance or tres-

pass under the Mississippi Common Law. The District Court

further held that Plaintiffs could not state a CERCLA cause

of action in order to recover response costs; because, Plain-

tiffs must show that the hazardous substances pose an “im-

minent and substantial threat to the public health and wel-

fare”, relying on a 1989 Oklahoma District Court case, and

a 1986 Rhode Island District Court decision (A38). See United

States v. Hardy, 733 Fed. Supp. 1424 (W.D.OKL. 1989); Violet

v. Picalo, 684 Fed. Supp. 1283, (R.I 1986).

9. The District Court held that “Plaintiffs did not iden-

tify any hazardous chemicals present at the home sites which

present any significant risk to health.” (A39) The District

Court ignored the analytical results in the record and the

expert testimony which has partially been presented to this

court in the Petitioners statement of the case. The Respon-

dent and the District Court never denied that there were

hazardous substances on the petitioner Carters’ site. The

District Court apparently felt that the hazardous substances

did not pose an imminent substantial threat.°

10.The District Court, without oral argument, without

an evidentiary hearing, ignored and/or disallowed the tes-

timony of five (5) of Petitioners highly qualified experts,

and refused to allow Petitioner to recover the thousands of

dollars of response costs indisputably incurred as a result

of the investigation surrounding the disposal of respondents

admitted hazardous waste stream. The District Court fur-

ther taxed Petitioners with costs of $11,414.00.

11. The case, containing 14 full volumes of materials, test

results, expert reports and factual statements of witnesses,

was taken to the Court of Appeals. In the Fifth Circuit, the

Plaintiffs attacked the District Courts erroneous and im-

proper findings of fact. Petitioners further alleged that the

District Court had ignored clear legislative intent and clear

jurisprudence from the Court of Appeals when it dismissed

Plaintiffs C.E.R.C.L.A. claim, and clearly erred when it re-

lied on an opinion from another jurisdiction related to,

5 The District court ignored Dr. Pike's affidavit in which he stated that r espon-

dent had disposed of between 1,920-4,480 dr ums of material based upon defen-

dants hazardous waste manifests. A review of the petitioners statement of the

case cited above, in view of memorandum opinion and or der of the District

Court would establish evidence of clear judicial overr eachingand failure to

follow this courts requirements for summary judgments under r ule 56(c). See

Anderson v. Liberty Lobby, Inc.., 477 U.S. 242(1986).

6 A review of the District Courts opinion would establish beyond doubt that

the Court simply chose to be the ultimate trier of fact and law; disr egarding its

mandate under Article 7 of the Constitution, 28 U.S.C §1446, and this Court's

jurisprudence. The Court accepted the unsupported factual allegations of Re-

spondent without review of the test results, expert reports and the statements

of the Mississippi Department of Envir onmental Quality establishing hazar d-

ous substance on the Carter homestead and the Cooper str eam and well.

7 It is incontrovertible that the District Court completely sidestepped the con-

trolling authority in the Fifth Circuit on C.E.R.C.L.A in formulating it’s Cercla

test. See, Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir. 1989). The District

Court's test relied on older district court opinions from another Circuit and

Amoco was never cited in the opinion.

plaintiff’s Mississippi common law Nuisance claims.8 Pe

itioners argued in the Appellant Court, as they now argue

here, that the evidentiary rulings applied to petitioners ex-

pert testimony were inappropriately applied to evidence

relevant to the property damages issues. Petitioner pointed

the Appellant Court directly to the relevant parts of the

record which indisputably established contamination of the

Carter site and the Cooper well stream.

12. It should be noted that the Court of Appeals had con-

solidated two cases, and that the opinion disposes of two

cases. Those cases are James Berry, et al v. Amstrong, et el, and

Wesley Cooper, et al v. Armstrong. This petition for Certiorari

is being filed by the plaintiffs in Cooper. Unfortunately, con-

solidation of the appeals is a cause of the error of the Court

of Appeals since the records were indisputably confused

by the Appellate Court. The Court of Appeals affirmed the

District Court’s summary dismissal of the plaintiff’s claims

by relying on the now overruled frye rule and without per-

forming a de novo review of the record (A10).

13. Petitioners timely requested a rehearing based upon

the clear error in interpreting the record, the apparent con-

fusion of the Court in differentiating the distinct records in

the consolidated appeals, and Daubert et ux v. Merril Dow,

—_US.___ 113 S.ct 2786 (1993). Petitioners suggested that

8 The District Court’s incongr uous legal reasoning becomes apparent where

reliance was placed on a 1952 nuisance case involving a cemetery and a case

from a different circuit. (A36-37)See, Dennery v. Hughes, 59 So.2d 316 (Miss. 1952);

Shutes v. Platte Chemical Company , 564 So.2d 1382 (Miss.1990) ; Phillips v. Davis

Timber Company, 468 So.2d 72 (Miss.1985). Philadelphia Electric Co. v. Hercules,

Inc., 762 F.2d 303 (3rd Cir. 1985).

Mississippi has a 100 year line of cases inapposite to the r easoning of the

district court. See, Shutes v. PlatteChemical, Co., 564 So.2d. 1382 (Ms. 1990);

Phillips v Davis Timber Co., 468 So. 2d 72 (Miss. 1985); Cochran v Consumer's

Wirebound Box Co., 149 So. 2d 844 (Miss. 1983) ; City of Jackson v Filtrol Corp. ; 624

F.2d 1384 (5th Cir. 1980); Love Petroleum, Co. v Jones, 205 So. 2d 274 (Miss. 1967);

Central Oil Co. v Shows, 149 So. 2d 306 (Miss. 1963); City of Oxford v Spears , 87

So. 2d 914 (Miss. 1956); Young v Weaver, 32 So. 2d 202 (Miss. 1947); . Masonite

Corp. v Steede, 23 So. 2d 756 (Miss. 1945); Masonite Corp. v Dennis , 168 So. 613,

614 (Miss. 1936); Masonite Corp. v Burnham , 164 Ms. 840, 858-860, 146 So. 292,

296 (Ms. 1933); Mississippi Mills Company v Smith, 69 Ms. 299, 303-305, 11 So. 26,

27 (Ms. 1891).

since Daubert clearly addressed the evidentiary issues in a

new light, that the evidence should be reevaluated by the

Court, or the case should have been remanded to the Dis-

trict Court. In an apparent refusal to abandon Frye and com-

ply with this Courts authority, the Court of Appeals with-

out comment refused to conduct a reevaluation of the record

in light of Daubert. As will become apparent, the legal basis

of the Appellate Court’s opinion falls in light of Daubert and

the independently admissible facts which indubitably es-

tablish extensive contamination of the petitioners proper-

ties.

14. In a decision which can only be described as a pure

reflection of a result oriented decision making process, the

Fifth Circuit, (in an opinion authored by a fellow district

judge from Texas), affirmed the decision of the District

Court. However, the Fifth Circuit did not affirm the deci-

sion of the District Court based upon the facts and law as

cited by the District Court in its opinion. Interesting enough,

the Court of Appeals simply changed the factual findings

of the District Court in order to legally justify dismissal of

petitioners claims. The Court of Appeals decided that there

were not contaminates present and then relied on jurispru-

dence which had been ignored by the District Court, but

cited in Plaintiffs brief to affirm the dismissal of Plaintiffs

property damage claims and denial of response costs. The

Appellate Court completely ignored the testimony of Dr.

George and Mrs. Suber which was based on first hand ob-

servations and which relied on otherwise admissible test

results to establish property contamination. The Appellate

Court held the Petitioners failed to provide the District Court

with sufficient admissible evidence that pollutants were in

Plaintiffs land or in their ground water to establish a genu-

ine issue of material fact. The Appellant Court at one point

in its decision refused to admit that any contamination was

present on Petitioner Carters farm; even though, the Appel-

lant Court makes several references to the ‘Carter site.’ In

one part of the opinion that the Appellant Court admits that

there is a “Carter site”, yet later in the opinion finds that

Petitioner Carter could not establish any contamination on

his property.” There can be no question that the Appellant

and District Court opinions in this case will not serve to

fulfill the legislative intent ir passing CERCLA.

If anything, the Appellant Courts refusal to acknowledge

contamination which is indisputably present in the record

and its decision that Petitioners can not recover response

costs will do nothing but to dissuade “any persons” in the

Fifth Circuit from bringing private party cost recovery ac-

tions.

9 The Appellant Court stated:

“However, Carter claims that Armstrong also dumped barr els containing

toxic chemicals without his knowledge, and that this dumping r educed the value

of his land.” 989 F.2d at 828.

The Appelate Court seems to suggest that Mr. Carter’s claim of toxic dump-

ing on his property is disputed. It is not. Armstrong admitted in answers to

interrogatories and in it’s deposition, and the testing by the State of Mississippi!

and Ms. Subra have verified, that hazardous and toxic substances from

Armstrong’s waste stream were deposited on the plaintiff Carter ’s homestead.

The Court of Appeals went on to state, “The summary judgment r ecord

contains the results of numerous tests performed by state and federal agencies.

Tl ts ; id that the Cain, Bati iC , é

taminated the adjacent properties, property owned by plaintif fs....In both Berry

and Cooper, plaintiffs failed to provide evidence of tests performed on plain-

tiffs’ properties that showed particularized findings that hazardous or toxic

substances were present... The Cooper and Berry plaintif fs failed to show such

evidence of an ‘invasion’ by Armstrong to withstand summary judgment.” 989

F.2d at 828, 830 (emphasis added)

The Carter site is owned by the plaintif f Mr. Carter! There is indisputable

evidence in the record that the Carter site is contaminated with Armstrong's

waste which indisputably contained hazar dous and toxic substances. There is

also overwhelming evidence in the record that wastes from Cain, Carter, and

Batieste traveled of fsite into cemetery bayou which contaminated Cooper pr op-

erty. Mr. Cooper stated in opposition to Defendant’s Motion for Summary judg-

ment,

“ All of the run off from the Cain site goes into Cemetery Bayou, which is

the southern boundary of my pr operty. It was here that the State of Mississippi

tested the stream beside my property and did find contaminants pr esent”.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD DECIDE WHETHER FED-

ERAL COURTS POSSESS INHERENT JUDICIAL

POWER TO ALTER ACTS OF CONGRESS, TO IGNORE

EVIDENCE, AND, IN A DIVERSITY CASE, TO ERADI-

CATE 100 YEARS OF STATE COURT JURISPRUDENCE.

This case provides this court with an opportunity to

speak with a clear voice about the limits of inherent judicial

power and the disposition of complex litigation involving

federal and state law issues pursuant to Federal Rule of Civil

procedure 56(C). In a long line of cases, the Fifth Circuit

has repeatedly erected barriers to Plaintiffs in toxic tort cases

through a result oriented reinterpretation of the federal rules

of civil procedure and the federal rules of evidence. 10

Petitioners do not contend that all the decisions in these par-

ticular cases were wrong. What Petitioners do contend is

that the line of these decisions, many of the judicial under-

pinnings of which were eliminated or modified by Daubert

evidence a policy of the Fifth Circuit which mitigates against

toxic tort cases. That judicial policy has now been expanded

beyond the bounds of the seventh amendment, the federal

rules of civil procedure, the federal rules of evidence, and

CERCLA to encompass nuisance, property damage, and

trespass claims under state law. These areas of law, exclud-

ing the response cost claim, predate the constitution and

are an area of common law specifically reserved to the states.

The issue of nuisance, trespass and the resultant damages

have traditionally been a question of fact to be determined

by a jury comprised of members of the community.

10 See Christophersen v. Allied-Signal Corp., 939 Fed. 2d 1106 (Sth Cir. 1991), cert.

denied, Christophersen v. Allied-Signal Corp., 112 S. Ct. 1280 (U.S. 1992); Brock v.

Merrell Dow Pharmaceuticals,Inc ., 884 F.2d 167 (5thCir. 1989),cert. den., 494 US.

1046 (1990), Randolph v. Laeisz, 896 F.2d 964 (Sth Cir.1990) Washington v. Armstrong

World Industries, Inc ., 839 F.2d 1121, (5th Cir. 1988), Osburn v. Anchor Laborato-

ries, Inc, 825 Fed. 2d. 908 (5th Cir. 1987), cert. den. 485 U.S. 1009, (1988) Vitterbro

v. Dow Chemical Company , 646 F.Supp. 1420, Affmd., 826 F.2d, (5th. Cir. 1987). In

re Air Crash Disaster at New Orleans” ,” 795 F.2d. 1230 (Sth Cir. 1986).

This policy was expressly pointed out and criticized by

the Four member dissent in the hotly contested en banc de-

cision of the Fifth Circuit in Christophersen v. Allied-Signal

Corp., 939 F.2d. 1106, (5th Cir. 1991) (en banc). Judge Reavley

for the dissent stated, “The judges of this court have in re-

cent years been sending warning signals about their dis-

pleasure with expert testimony. Today the court takes hold

of expert testimony by taking over. The per curiam opinion

effectively allows judges to decide the ‘reliability’, ‘weight,

‘and relative merit of expert opinions’, at least in toxic tort

cases. And with such control, we signal a willingness to in-

crease the proof and persuasion burdens of the disfavored

party. The author of the per curiam claims to introduce no

new concepts to our jurisprudence. Surely my colleagues

know better, or at least they should know that their use of

these concepts confuses the admissibility of evidence with

the sufficiency of evidence, changes the rules of evidence

without benefit of amendment, denies Mrs. Christophersen

her right to trial by jury, and eliminates substantive rights

in tort cases where federal courts have only diversity juris-

diction.”

After being advised by this court that the legal under-

pinnings of the Christofferson decision were incorrect, the

fifth Circuit refused to remand or rehear the Cooper and

Carter cases in light of Daubert.11

Il. THE FIFTH CIRCUIT IGNORED LEGISLATIVE

INTENT AND ENGAGED IN JUDICIAL LEGISLATION

{N DISMISSING PETITIONERS RESPONSE COST

CLAIMS UNDER C.E.R.C.L.A (42 U.S.C. §9601).

11. It was specifically pointed out to the panel upon r equest for rehearing that

its’ reliance upon Frye, Christofferson and F.R.E. 703 as providing a legal basis

for affirming this case had been specifically overr uled by this court.

The law governing this cause of action was passed by

Congress in order to effectuate the discovery, inspection and

remediation of disposal areas which contained hazardous

substances and/or which may present a threat to the public

health or the environment. H.R. Rep. 1016, 96 Congress 2nd

Session, P.T. | at 17-18 (1980), 1980 U.S. Code, Congressional

and Administrative News 6119, 6120. See, Grad, A legisla-

ture history of the Comprehensive, Environmental Response, Com-

pensation and Liability (Superfund) Act of 1989, 8 Colum J.

Envtl. L. 1 (1982)

In order to present a prima facia CERCLA claim, the fifth

circuit had previously stated, “a plaintiff must prove (1) that

the site is a ‘facility’ as defined in Section 9601(9); (2) that

the defendant is a responsible person under Section 9607(a);

(3) that a release or threatened release of hazardous sub-

stance has occurred; (4) that the release or threatened re-

lease has caused plaintiff to occur response cost... If plain-

tiff establishes each of these elements and the defendant is

unable to establish the applicability of one of the defenses

listed in Section 9607(b), the plaintiff is entitled to a sum-

mary judgment on the liability issue...” Amoco Oil, Inc. v

Borden, Inc., 889 Fed. 2d 664, 668 (5th Cir. 1989); See also,

U.S. v. Marisol, Inc., 725 F.Supp 833 (M.D. Pa. 1989); U.S. v.

Hardage, 733 F.Supp 1424 (W.D.Okla 1989).

Here instead of affirming the test of the district court

which required an immanent and substantial threat, the fifth

circuit rearranged the first prong of the test so that it now

requires that the contaminants be on plaintiffs inp Song for

the site to constitute a facility under the act.1 (A13). The

12. The panel specifically found:

“The district court dismissed the plaintif fs’ CERCLA claims because, despite

almost two years of discovery, plaintiffs failed sufficiently to prove the pres-

ence of any hazardous substances on their pr operty to withstand summary judg-

ment. A site cannot be a facility unless a hazar dous substance has been depos-

ited stored disposed of or placed or otherwise came to be located. . . at the site.

Amoco, 889 F.2d at 668, n. 4. As a matter of law, plaintiffs cannot meet the first

requirement of a CERCLA claim. In both Berry and Cooper, plaintiffs failed to

test applied by the Fifth Circuit and the award of over

$11,000.00 in costs against petitioners must be rejected and

reversed in order to avoid frustrating the attempts of con-

cerned citizens in the Fifth Circuit to clean up and protect

their health and environment. As it now stands, the test

applied by the Fifth Circuit in this case could govern the

prosecution of all future CERCLA actions in this circuit,

thereby frustrating congressional intent and the clear policy

of the United States. Nowhere in the statute passed by con-

gress does it say that response costs, to be recoverable, must

be incurred in the testing or cleaning of the plaintiffs prop-

erty.

The fifth circuits ruling in this case directly contra-

dicts the ruling of the first circuit in Dedham Water Co.

v. Cumberland Farms Dairy, 889 F.2d. 1146 (1st. Cir. 1989),

and its’ progeny in other circuits. In Dedham, supra,

after an exhaustive review of the legislative history of

the CERCLA, the first circuit correctly interpreted the

statute to allow recovery of response costs if there has

been a release or threatened release of a hazardous

substance irrespective of whether the plaintiff owned

the land upon which the contaminates were released.

The first circuit stated, “A literal reading of the statute

imposes liability if releases or threatened releases from

defendants facility cause the plaintiff to incur response

costs: it does not say that liability is imposed only if

the defendant causes actual contamination of the

plaintiff’s property... To our knowledge every court

that has addressed this issue, with the exception of the

district court in the instant case, has held that it is not

necessary to prove actual contamination of plaintiffs

property by defendants waste in order to estab-

provide evidence of tests performed on plaintiffs’ properties that showed particular -

ized findings that hazar dous or toxic substances wer e present. The district court’s

summary judgment dismissing plaintif fs’ CERCLA claim is therefore affirmed.”

(A12)(emphasis added) Dedham, 3 F.3d. at 1152-1154.

lish liability under CERCLA Dedham, 889 F.2d. at 1152,1154.

See also, United States v. Alcan Aluminum, 990 F.2d 711, 721

(2nd. Cir. 1993); United States v. Alcan Aluminum, 964 F.2d

252, 265 (3rd. Cir. 1992) _—‘ The fifth circuit without any le-

gal authority cited, apparently rejected Dedham and its

progeny, and created its own much more restrictive test.

The fact that there is a conflict among circuits on the issue

of liability in CERCLA was confirmed by the fifth circuit in

Matter of Bell Petroleum Services, Inc., 3 F.3rd. 889 (5th. Cir.

1993). In Matter of Bell, supra, the fifth circuit claimed to have

the authority to recast the joint and several liability provi-

sions of the CERCLA as drafted by congress to develop its’

own equitable system. In the conclusion of his dissent, Judge

Parker stated, “contrary to congressional intent and tradi-

tional judicial doctrine -not to mention the bedrock prin-

ciple of a prudent separation of federal governmental pow-

ers- The majority has usurped for itself the special powers

of the executive and the trial court as well. Matter of Bell, 3

f.2d at 922.

Petitioners have indisputably established that defendant

was responsible for disposing in excess of one million

pounds of hazardous substances from this facility during

the relevant time periods which has caused petitioners to

incur response costs. It is undisputed that Armstrong’s Waste

Stream is and was hazardous, that Armstrong was the only

manufacturer of tire and rubber products in Natchez, Mis

sissippi, and that Armstrong disposed of its hazardous waste

stream for 40 years by open dumping directly into the envi-

ronment. It is respectfully suggested that these facts estab-

lish a release of a hazardous substance to invoke the rem-

edies of CERCLA as a matter of law. 13

13. According to the District Court in City of New York v. Exxon Corp., 766 F Supp

177 (S.D. N.Y. 1991), Any substance containing cadmium, chr omium or lead is

a “hazardous substance” under CERCLA. In this case it is irr efutable that de-

fendants’ hazardous waste stream contained cadmium and lead and that these

substances have been found on the Carter farm and in the Cooper well and/ or

stream above E.P.A. standards. City of Philadelphia v. Stephan Chem. Co. , 544 FSupp

In dismissing this case, the Federal Courts have con-

demned this community to live with these materials in the

open environment without a judicial resolution of the com-

munities safety and health concerns. Plaintiffs are entitled

to a trial on the declaratory judgment action as to those sites

under CERCLA. 42 U.S.C. §9613(g)(2), 40 C.ER. §300 et. seq.

See Gaba, Recovery Hazardous Waste Clean-Up Cost: The Pri-

vate Cause of Action Under CERCLA Ecology Law Quarterly,

13:181, page 215.

Congress recognizing the fact that the lack of resources

available to private parties would frustrate application of

CERCLA, requires only that parties sustain some response

costs to be entitled to a declaratory judgment on liability.

State ex rel Brown v. Georgeoff, 562 F.Supp 1300 (N.D.Ohio

1983); Kelly v. Thomas Solvent, Co., 727 FSupp 1532 (W.D.

Mich. 1989); Wellesley Hills Realty Trust v. Mobil Oil Corp.,

747 FSupp 93 (D.Mass 1990); U.S. v. Hardage, 733 F.Supp

1424 (W.D. Okla 1989)

The record contains overwhelming and undisputed

proof that hazardous substances were released at these sites.

Defendant’s truck drivers admitted dumping hazardous

materials at these sites. In fact, one truck driver described

the fires which occurred at the dump sites when volatile

organics were discharged. 14

According to Ms. Subra, plaintiff’s expert chemist, “It is

irrefutable that massive quantities of hazardous and toxic

1135 (E.D. Pa 1982). See also, U.S. v. Alcan Aluminum Corp., 755, FSupp 531

(N.D. N.Y. 1991), Walls v. Waste Resource Corp., 761 F.2d. 311 (6th Cir 1985)

14. The Court of Appeal ignored the public health threat issues and failed to

discuss or take into account the undisputed fact that all of the sites sit atop a

designated Sole Source Aquifer. According to the EPA, “The Southern Hills

Regional Aquifer System is a principle source of drinking water for an area

comprising ten parishes in Southeast Louisiana and all or parts of 14 counties

in Southwest Mississippi and that this Aquifer, if contaminated, would create a

significant hazard to public health...” Federal Register Vol. 53 No. 130, Thurs-

day July 7, 1988 pg. 25538.

substances were placed at the Cain, Carter and Batieste sites.

In fact, the State of omg, 9 confirms this in their orders

which were not opposed”.

An example of the appellate court’s inability to grasp

the issues at hand is it’s insistence that no hazardous wastes

were present at the Carter farm. It was the responsibility of

the appellate court to completely review this record de novo

and to take control of this litigation, in order to insure that

the public policy of the United States was followed. This

policy requires the judicial protection of the health and en-

vironment of Adams County and the sole source aquifer. If

the appellate court’s decision is allowed to stand, nothing

further will be done and Armstrong would have success-

fully avoided liability for cleaning up its hazardous waste

sites.

II. THE FIFTH CIRCUIT APPLYING A RESULT ORI-

ENTED DECISION MAKING PROCESS ERRONE-

OUSLY DETERMINED THAT RESPONDENTS WERE

ENTITLED TO A JUDGMENT, AS MATTER OF LAW,

ON PETITIONERS STATE LAW CLAIMS AND ERRO-

NEOUSLY REFUSED TO GRANT THE RELIEF RE-

QUESTED IN THE PETITION FOR REHEARING EVEN

AFTER BEING CONFRONTED WITH THE REALITY

THAT MOST, IF NOT ALL OF IT’S FACTUAL AND LE-

GAL FINDINGS WERE NOT SUPPORTED BY THE

RECORD OR THE JURISPRUDENCE.

The petitioners would respectfully suggest, that a review

15. Mrs. Subra testified: “The sites identified must be cleaned up to pr otect the

public health and environment of Adams County. However, in order to do a

remedial plan which would be submitted to the pr oper governmental authori-

ties, a tremendous amount of resources would have to be available. Such re-

sources in private party cases are generally not available until ther e has been a

finding of liability. Once liability is established, the necessary testing and char -

acterization of the sites can begin. Once this is accomplished, a r emediation

plan will be provided to the governmental authorities and the work will be put

of the facts in this record, will lead to the inescapable con-

clusion that the appellate court improperly made findings

of fact which were not supported by the record in violation

of the seventh amendment, 28 U.S.C §1442, and this court’s

clear jurisprudence. Anderson v. Liberty Lobby, Inc., 477

U.S.242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

These findings of fact were disputed and supported only

the defendant in direct contradiction to the jurisprudence

interpreting Rule 56 of the Federal Rules of Civil Procedure.

The court of appeals refused to apply Mississippi statu-

tory and common law to the facts in conformance with the

jurisprudence of the Mississippi Supreme Court as is re-

quired by this court in diversity cases. Erie Railroad v.

Thompkins, 304 U.S. 64 (1938). In reviewing a District Court's

summary dismissal of a complaint, the record must be re-

viewed in light of the fact that the District Court has deter-

mined that the plaintiffs cannot avail themselves to their

constitutional rights to a jury trial.

In affirming a summary judgment, an appellate court

should exercise great care in examining the record for all

evidence, both direct, and circumstantial which supports

the non-moving party’s position. The appellate court, as

did the district court, has an obligation to inquire into all

factual assertions present in the record. In this case, the

appellate and district court is totally failed to follow the cor-

rect factual analysis based on the record as mandated by

the Constitution and this Honorable Court's jurisprudence.

It was incumbent upon the appellate court to review the

entire record in this case under the same standards which

should have guided the district court. The evidence in this

case should have been independently reviewed in the light

most favorable to the petitioners with the realization that

up for bid. At that time, a government appr oved private party cleanup will

begin as envisioned by the Compr ehensive Environmental Response, Compen-

sation and Liability Act (Cercla).”

summary judgement is rarely appropriate in strict liability

and negligence cases.

Mississippi Law recognizes that the defendant's actions

need only be a proximate cause or contributing cause of the

force which is a substantial and contributing factor in pro-

ducing the harm. Jackson v. John-Mansville Sales Corp., 727

Fed. 2d 506 (5th Cir. 1984); Vacated and modified, 781 F.2d

394, cert. denied, Johns-Manville Sales Corp. v. Jackson, 478 U.S.

1022 (1986); New Orleans & N.E.R. Co. v. Burge, 2 So. 2d 825

(Miss. 1941). Further, if the defendant’s negligence put into

operation the force which caused the harm, even if that force

concurred with other causes which produces the injury, the

defendant is still liable. Oliver v. Miles, 110 So. 666, 50 ALR

357 (Miss. 1926); Planter’s Wholesale Grocery v. Kincade, 50

So. 2d 578 (Miss.1951); D & W Jones, Inc. v. Collier, 372 So. 2d

288 (Miss. 1979),

In a nuisance and /or trespass case, Mississippi Law only

requires a showing that defendant'’s activities in disposing

of its toxic waste has caused damage to plaintiff's legally

protected interests. Young v. Weaver, 32 So. 2d 202 (Miss.

1947); City of Oxford v. Spears, 87 So. 2d 914 (Miss. 1956);

Phillips v. Davis Timber Co., 468 So. 2d 72 (Miss. 1985).

Under the doctrine established in City of Oxford, supra

and Phillips, supra, it is irrelevant whether the pollution is

harmful. Plaintiffs need only show an invasion of their

rights. It is even irrelevant whether plaintiffs establish ac-

tual damages since Mississippi law recognizes that even

absent actual damage, when there has been an invasion of

plaintiff's interest, plaintiffs are entitled to nominal dam-

ages. City of Jackson v Filtrol Corp., 624 F.2d. 1384 (5th Cir.

1980); Cochran v. Consumer's Wirebound Box, 149 So. 2d 844

(Miss. 1983); Central Oil Co. v. Shows, 149 So. 2d 306, 311

(Miss. 1963); Love Petroleum Co. v. Jones, 205 So. 2d 274, 275

(Miss. 1967).

Mississippi law is clear and unequivocable that mon-

etary damages are appropriate where a landowner’s prop-

erty has been impaired. Masonite Corp. v Steede, 23 So. 2d

756(Miss. 1945); Masonite Corp. v. Dennis, 168 So. 613 (Miss.

1936); Masonite Corp. v. Burnham, 146 So. 292, 296 (Miss. 1933);

Mississippi Mills Company v. Smith, 11 So. 26, 27 (Miss. 1891).

These monetary damages include decreased market value

caused by the stigma associated with the public discovery

that hazardous wastes were placed on a property. Binum v.

Mandrel Industries, 241 So. 2d 629 (Miss. 1970); Phillips, supra,

468 So. 2d at 1379. Further, it is irrelevant whether there

has been a migration of chemicals. Edge v. City of Booneville,

83 So. 2d 801 (Miss. 1955)

The appellate court appears to hold that the presence of

hazardous substances under a citizen’s home, in a citizens

well, or in a citizen’s stream is not a “confirmed physical

property damage”, under Mississippi common law. The

decision is not only illogical, not supported by the case law,

but defies common sense. Market value is determined by

what a willing buyer would pay to a willing seller. If the

buyer knows that hazardous substances are on the land, or

in the streams, and is aware of the potential for clean up,

common sense dictates that he will not buy or will pay much

less. In this case, the analytical testing and expert testimony

establish that Mr. Carters farm, and Mr. Coopers plantation

have been invaded by defendant’s hazardous waste.

A review of the Mississippi Supreme Court jurispru-

dence will establish conclusively that the plaintiffs have

stated a claim pursuant to the Mississippi Common Law

Doctrine of Nuisance. Plaintiffs, under the Private and Public

Nuisance Doctrine, have a viable claim for property dam-

age, annoyance, inconvenience and mental distress result-

ing from the defendant's activities. See Common Law Rem-

edies for Environmental Wrongs: The Role of Private Nuisance,

59 Miss. Law Journal 657 (1989).

The petitioners also stated a viable claim under the doc-

trine of public nuisance. Under the doctrine of public nui-

sance, plaintiffs may recover the same damages as in a pri-

vate nuisance case, and need only show that the defendant's

activities has worked in an obstruction or injury to a right

or the public. Certainly, it cannot be disputed that the pub-

lic has a right not to have hazardous wastes disposed of on

top of their drinking water aquifers. Also, the Mississippi

Legislature has deemed the defendant Armstrong’s activi-

ties with regard to waste disposal as a “public nuisance per

se”. See, Mississippi Statutes Ann. Sec. 17-17-17.

The citizens of Mississippi are statutorily entitled to re-

cover damages under the public nuisance doctrine. Miss

Code Annot. § 95-3-5, Perry v. Jones, 43 So.2d 565 (Miss. 1949).

A private litigant can sue based on public nuisance when

the plaintiff’s injury differs in kind from those suffered by

the public at large. Maples v. Quinn, 64 So.2d 711, 712 (Miss.

1953). In this case, the plaintiff’s also sought injunctive re-

lief under the common law for an abatement of the nuisance

created by defendant's conduct.

The appellate court did not fully consider the implica-

tions of the jurisprudence from the Mississippi Supreme

Court and statutes passed by the Mississippi Legislature in

making it’s decision. The court completely ignored and did

not address petitioners rights pursuant Miss. Code Annot.

§ 17-17-17 which declares these dumps a public nuisance

per se and statutorily provides plaintiffs with a cause of

action.

CONCLUSION

The abuse of federal judicial power presented in this writ,

mitigates in favor of this Courts granting the petition.

Appelate Courts’ should not be allowed to engage in such

flagrant abuse of the policies of the United Staes as encom-

passed within the statutory provisions enacted by congress

and this courts jurisprudence.

STUART H. SMITH

Counsel of Record

200 BROADWAY # 226

New Orleans, LA 70118

(504) 866-8200

APPENDICES

APPENDIX A

Decision of the United States Court of

Appeals for the Fifth Circuit, affirming

the district court's grant of summary

judgment for respondent, dated

PO Be tO vniccseecbensiurchiovannciccustuiiiessdedesadiedetiadaldncseninens Al

APPENDIX B

Memorandum and Order of the United

States District Court for the Southern

District of Mississippi, granting summary

judgment for respondent, dated

FONG Ble BOW cectarnictnitasidtsnsnistnsacsascsinciecsercenonenevomsens Al5

APPENDIX A

James BERRY, Sr., et al., Plaintiffs-Appellants, v. The

ARMSTRONG RUBBER COMPANY, Defendant-Appellee. J.

Wesley COOPER, et al., Plaintiffs-Appellants, v. The

ARMSTRONG RUBBER COMPANY, Defendant-Appellee.

NOS. 91-1934, 91-1996.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

May 3, 1993, Decided and Filed

Before: REYNALDO G. GARZA and GARWOOD, Circuit

Judges, and ROSENTHAL,

District Judge. *

OPINION: ROSENTHAL District Judge:

1. Background

This is a consolidated appeal from a grant of sum-

mary judgment in favor of defendant Armstrong Rubber

Company (Armstrong) in two separate suits. Armstrong op-

erated a tire manufacturing plant in Natchez, Mississippi,

from 1937 through 1987, when it sold the plant. Plaintiffs

are individuals who live in Natchez, Mississippi. It is un-

disputed that from 1937 through the 1970s,

* District Judge of the Southern District of Texas, sitting by

designation.

Armstrong dumped waste materials from this plant into

various sites around the Natchez area. It is also undisputed

that several of these sites are located near the areas in which

plaintiffs live. Plaintiffs claim that this dumping left haz-

ardous chemicals on their land and in their groundwater.

Armstrong denies the presence of any harmful level of haz-

ardous materials on plaintiffs’ land or in their water.

In 1988, plaintiffs sued Armstrong in two separate cases,

James Berry, et al.v. Armstrong Rubber Co., Civ.A. No.

]88-0653(B), U.S. District Court, S.D. Miss., Jackson Division,

and J. Wesley Cooper, et al. v. Armstrong Rubber Co., Civ.A.

No. J88-0464(L), U.S. District Court, S.D. Miss., Jackson Di-

vision, alleging a right to recovery under the Comprehen-

sive Environmental Response, Compensation, and Liabil-

ity Act (CERCLA), 42 U.S.C. @ 9601-9675, and under Mis-

sissippi state law causes of action for nuisance, trespass,

personal injury, strict liability, negligence, and property dam-

age.! After almost two years of discovery, the district court

dismissed plaintiffs’ claims, holding that plaintiffs had not

produced sufficient evidence that hazardous substances

were present or that such substances caused any injuries.

780 F. Supp. 1097. We affirm the rulings of the trial court.

2. Standard of Review

This court reviews the grant of summary judgment de

novo, applying the sameRule 56 standards employed by the

district court. See Stout v. Borg-Warner Corp., 933 F.2d 331,

1 The Berry lawsuit initially included claims under other federal envir onmen-

tal acts and state common law nuisance claims. On May 17, 1989, thedistrict

court dismissed plaintiffs’ statutory claims under the federal envir onmental

acts and plaintiffs’ state common law nuisance claims. Plaintif fs do not appeal

the dismissal of the statutory claims under federal envir onmental acts. The dis-

trict court granted Armstrong’s second motion for summary judgmenton July

30, 1989, dismissing all claims.

334 (Sth Cir.1991). Evidentiary rulings are reviewed under

a manifest error standard. Christophersen v. Allied-Signal

Corp., 939 F.2d 1106,1109 (5th Cir.1991), cert. denied -US.-,

112S. Ct. 1280, 117 L. Ed. 24506 (1992); Viterbo v. Dow Chem.

Co., 826 F.2d 420 (5th Cir.1987). If the district court’s ruling

depended on the admissibility of certain evidence, appel-

late review is a two-tiered process. First, we review the

evidentiary rulings under the manifest error standard, then

review the trial court’s summary judgment decision de novo.

Christophersen v. Allied-Signal Corp., 939 F.2d 1106,1109.

In granting a motion for summary judgment, the

district court is not to weigh the evidence or make credibil-

ity choices. Orthopedic & Sports Injury Clinic v. Wang, 922

F.2d 220, 223 (5th Cir.1991). This does not mean, however,

that the existence of any factual dispute will foreclose sum-

mary judgment. The dispute must be genuine, with facts

on both sides of a material issue, before acourt must submit

it to a jury. See Lewis v. Glendel Drilling Co., 898 F.2d 1083,

1088 (5th Cir.1990).

The trial court held that much of plaintiffs’ expert

testimony lacked sufficient probative value under Rule 703

of the Federal Rules of Evidence to overcome summary judg-

ment for Armstrong. Viterbo v. Dow Chem. Co., 826 F.2d at

422. Rule 703 does not “make summary judgment impos-

sible whenever a party has produced an expert to support

its opinion.” Viterbo v. Dow Chemical Co., 826 F.2d at 422

(quoting Merit Motors, Inc. v. Chrysler Corp., 187 U.S. App.

D.C. 11, 569 F.2d 666, 673 (D.C.Cir.1977)). If the basis for the

expert’s opinion is so unreliable that no reasonable expert

could base an opinion on that data, the opinion may be ex-

cluded in the district court’s determination of whether there

is a genuine issue regarding an essential element of the claim.

Viterbo v. Dow Chemical Co., 826 F.2d at 422: see also Or-

thopedic & Sports Injury Clinic vy. Wang, 922 F.2d 220, 225

(Sth Cir.1991).

We conclude that the district court correctly granted

defendant’s summary judgment motion. Because the evi-

dence presented by the Berry and the Cooper plaintiffs is in

some respects distinct, we analyze the issues of proof as to

each case separately.

3. Berry

Plaintiffs James Berry, Sr., James Berry, Jr., Dwight

Berry, and Tangela Berry, live at 103 Downing Rd. in the

Mayfair Subdivision in Natchez. Plaintiffs Charles and

Bessie Prater live across the street at 102 Downing Rd. These

plaintiffs, the Berry plaintiffs claim that their homes rest on

top of and/or near fil! material containing toxic wastes left

by Armstrong, and that their health and property values

have suffered as a result.

It is undisputed that these plaintiffs’ lots have never

been tested to determine whether any toxic chemicals are

present. Plaintiffs admit that there is no test data of soil or

water taken from their lots. Plaintiffs instead relied on ex-

pert testimony to provide circumstantial evidence of the

presence of hazardous substances in a quantity sufficient to

cause the alleged harm.

One of plaintiffs’ experts, Dr. Ralph Pike, a chemical

engineer, reviewed tests of soil samples by the Mississippi

Bureau of Pollution Control (BPC) and the United States

Environmental Protection Agency (EPA). These samples

were taken from lots along Hampton Court, approximately

one-half mile northwest of the Mayfair subdivision. Dr. Pike

reviewed these samples and stated in an affidavit that it was

more probable than not that the chemicals found in the

Hampton Court area were produced by the tire manufac-

turing industry in Natchez Mississippi and that it was more

probable than not that some of the chemicals were hazard-

ous and/or toxic materials. (Vol. III, p. 569).

Dr. Pike admitted that he did not know where Mayfair

was, whether any testing had been done there, or where

plaintiffs lived. (Vol. III, p. 632-33). It is undisputed that he

relied on data from tests he did not do, of soil taken from

property not involved in this case. It is also undisputed that

based on these same tests, the BPC concluded that there was

no imminent threat to the public health or the environment

and that no type of emergency response action was war-

ranted. (Vol. IV, p. 1135).

Dr. Pike also reviewed tests by the Mississippi Office

of Pollution Control(OPC), the successor to the BPC, in the

Hampton Court, George F. West Boulevard, and Mayfair

areas. Soil vapor samples taken at two lots in Mayfair, nei-

ther of which belonged to plaintiffs, indicated the presence

of trace amounts of hydrogen sulfide. (Vol. IV, pp. 116-17).

One sample taken from a lot located a quarter mile north-

west of Mayfair showed a hydrogen sulfide concentration

over 200 times greater than that found in Mayfair. The OPC

found that this was due to a gas pipeline leak and the pres-

ence of sewer and store drains. (Vol. IV, p.1141). The OPC

concluded that the site does not pose any significant risk to

the public health or the environment. (Vol. IV, p. 1143). Dr.

Pike stated by affidavit that the hydrogen sulfide could be a

by-product of the tire manufacturing waste stream. (Vol. IV,

p. 1123). He did not, however, dispute the OPC’s conclu-

sion that no threat to health or the environment was present

in the area.

Plaintiffs also relied on the expert testimony of Wilma

A. Subra, a chemist, who concluded that it was more prob-

able than not that hazardous components of Armstrong’s

waste stream were deposited in the land fills on which plain-

tiffs’ homes were built. (Vol. III, p. 810-12). Like Dr. Pike,

Ms. Subra did not conduct any chemical analyses of soil

samples from plaintiffs’ home sites. Unlike Dr. Pike, she did

not even base her conclusions on any chemical analysis or

testing performed by a third party. (Vol. III, p. 653-54). In-

I ie aiiaceiieataeasiieiinaiinianaleaaaill

stead, she relied solely on physical observations of waste at

a site unrelated to this case, with no chemical analysis of

the waste to determine whether it was toxic. Id.

Beyond the opinions of their experts, there is little in

the summary judgment record to evidence the presence of

hazardous wastes on plaintiffs’ land. Plaintiff James Berry

stated in his deposition that he saw rubber and stuff dug up

from his back yard. (Vol. III, p. 607) Plaintiffs point to the

testimony of various witnesses that they either participated

in or saw Armstrong dumping tires and barrels in the gen-

eral area of plaintiffs’ homes some 30 to 40 years earlier.

Based on such evidence, plaintiffs and their experts surmise

that wherever Armstrong disposed of tires, it probably also

disposed of toxic chemicals. Because tires and barrels were

removed from James Berry’s lot, plaintiffs asked the district

court to infer that chemicals from the Armstrong plant were

also present on plaintiffs’ lots. (Vol. III, pp. 810-12).

The plaintiffs’ property damage claim was based on

the testimony of William Douglas Upchurch, a real estate

expert. He stated that in the Natchez real estate market, the

plaintiffs’ properties were perceived to be contaminated by

toxic wastes, and concluded that a negative market stigma

significantly reduced the market values of plaintiffs’ prop-

erties. (Vol. III, p. 661-69). However, this testimony provided

no evidence that toxic or hazardous wastes were present on

plaintiffs’ property.

4. Cooper

The Cooper plaintiffs Wesley Cooper, his wife, Mar-

garet Cooper, and his mother, Estelle Cooper, live on prop-

erty located two-thirds of a mile south-southeast from a

waste disposal site that Armstrong used from 1939 to the

early 1970s. This site, known as the Cain site is separated

from the Cooper property by another tract of land. Plain-

tiffs Warren Benson and his wife, Leslie Mae Benson, live

on property across a public road from the Coopers.

Wesley Cooper claims that hazardous materials from

the Cain site have contaminated his private well water and

resulted in his stomach cancer. He also claims damages from

a reduction in the value of his property. The Bensons do not

own the property on which they live, but claim they have

suffered personal injury due to exposure to the Cain site.

Plaintiff James Carter lives on and owns property

known as the Carter site. This is next to the Batieste site

where Armstrong sought and paid for permission to dump

wastes. Carter acknowledges that he gave Armstrong per-

mission to dump tires on his property, for which Armstrong

paid. However, Carter claims that Armstrong also dumped

barrels containing toxic chemicals without his knowledge,

and that this dumping reduced the value of his land.

The summary judgment record contains the results

of numerous tests performed by state and federal agencies.

These tests found no evidence that the Cain, Batieste, and

Carter sites contaminated the adjacent properties, property

owned by plaintiffs. The investigation of the Cain site be-

gan on November 6, 1986. Following initial testing, the

United States EPA Region Four Technical Assistance Team

(TAT) took samples at the Cain and Carter sites. On July

11, 1987, an EPA representative advised the State Bureau of

Pollution Control that the sampling indicated no contami-

nants that approach a level of concern. The U.S. Agency for

Toxic Substances and Disease Registry analyzed the same

data and concluded that the ground water posed no public

health threat.

On October 17, 1988, the chief of the Hazardous Waste

Division of the BPC stated as follows:

As indicated by the ongoing investigation and the outstand-

ing orders, the BPC is of the opinion that the Armstrong

sites warrant further investigation, but the data collected

and analyzed to date indicates that there is no imminent

threat to human health at these sites (Vol. 1, R. 0045).

On July 20, 1989, a representative of the Hazardous

Waste Division of Mississippi Department of Environmen-

tal Quality (DEQ), wrote to each private well owner in the

area advising that the water was safe to drink and that the

chemicals identified in water were naturally occurring and

within normal levels. Studies of the Cain site continued. (Vol.

1, R. 38-346; Vol. 7, R. 2509-2530). As of November 3, 1990,

the Fidelity Tire Company, which purchased the Armstrong

plant in 1987, had installed eight monitoring wells at these

sites, taken over fifteen soil samples, over fifty soil borings,

and over forty groundwater samples, at a cost of $ 520,000.

(Vol. 7, R. 2506-2531; Vol. 1, R. 38-346).

Plaintiffs produced no direct evidence that

Armstrong dumped any wastes on the Cooper or Benson

land. Their only basis for alleging that hazardous chemicals

were present on their land was that chemicals were dumped

in other sites, travelled into the groundwater, and contami-

nated plaintiffs’ soil and well water (Vol. VI, p. 2189). Plain-

tiffs’ expert, Dr. Nolan Aughenbaugh, a professor of

geotechnical engineering, stated that certain unusual geo-

logic conditions could exist which could allow the migra-

tion of toxic chemicals to plaintiffs’ land. His conclusion was

not based on any studies done on plaintiffs’ land.

The district court found that Dr. Aughenbaugh’s tes-

timony was.in the area of geochemistry or hydrogeology,

which require the use of models to determine the move-

ment of water-borne substances. (Vol. X, p. 4139-4140). Dr.

Aughenbaugh had no expertise or credentials in that area

and admitted that he did not know how to use such mod-

els. (Vol. 6, p. 2309). The district court noted that the experts

from the state and federal agencies who did perform tests

concluded that the groundwater under the Armstrong

dumpsites flowed northwest, toward the Mississippi River

and away from plaintiffs’ land. (Vol. X, p. 4143-44). The dis-

trict court rejected Dr. Aughenbaugh’s contrary speculations

under Rule 703, holding them insufficient to create a genu-

ine issue of fact (Vol. X, p.4140).

Dr. Aughenbaugh’s testimony provided the only ba-

sis for Dr. William George, a toxicologist, and Dr. Lawrence

George agreed with defendant's experts that the chemicals

found in Wesley Cooper’s well were at such low levels that

they posed no health threat. (Vol. 6, R. 2377-80).

Ms. Subra offered the same Opinion as she offered in

Berry,with the same lack of analysis that the district court

found disqualifying in Berry. William Upchurch also offered

his expert opinion as a real estate appraiser on the effect of

the perception that toxic substances were present on the

Cooper and Carter Properties.

5. Admissibility of Expert Testimony

(1) Whether the witness is qualified to express an

expert opinion, Fed.R.Evid.702:;

A10

(2) whether the facts upon which the expert relies

are the same type as are relied upon by other

experts in the field, Fed.R.Evid. 703;

(3) whether in reaching his conclusion the expert used

a well-founded methodology, Frye; and

(4) assuming the expert's testimony has passed

Rules 702 and 703, and the Frye test, whether

under Fed.R.Evid. 403 the testimony’s poten-

tial for unfair prejudice substantially out

weighs its probative value. 939 F.2d at 1110.

Plaintiffs offered the deposition and /or affidavit testimony

of five expert witnesses: Dr. Ralph Pike, a chemical engi-

neer; Dr. William George, a toxicologist; Dr. Lawrence Miller,

a medical doctor; Dr. Nolan Aughenbaugh, a professor of

geotechnical engineering; Wilma Subra, an analytical chem-

ist; and William Upchurch, a real estate appraiser. Armstrong

did not challenge the Rule 702 qualifications of these expert

witnesses to testify in their specified areas of expertise.

Armstrong argued that Dr. Aughenbaugh, Dr. George, and

Ms. Subra stepped outside of their areas of expertise.

Armstrong also argued that all these experts relied upon

improper facts of a sort not relied upon by experts in their

field and failed to use an accepted methodology, in viola-

tion of Rule 703 and Frye.

The court correctly noted that Dr. Pike’s opinions

were not based on tests he performed, or even tests of the

properties at issue. Ms. Subra’s conclusions were not based

on her own expert area of chemical analysis, and were not

based on tests of the plaintiffs’ properties. Dr. Aughenbaugh

testified as a geochemist or hydrogeologist, areas in which

he was not qualified, using data and methodology not rec-

ognized by experts in those fields. Dr. George and Dr. Miller

relied on the work by these experts to form their opinions

as to medical causation. Dr. Miller also reached conclusions

that the district court found to be unsupported by accepted

All

methodology. The district court did not commit manifest

error in ruling that these experts’ opinions were insufficient

to overcome summary judgment. See Brock v. Merrell Dow

Pharmaceuticals, Inc., 874 F.2d 307, 312-13 (5th Cir.1989),

cert. denied 494 U.S. 1046, 1105S. Ct. 1511, 108 L. Ed. 2d 646

(1990).

6. Personal Injury Claims

Only one plaintiff, Wesley Cooper, alleged that he

had a specific physical problem resulting from drinking well

water polluted from Armstrong dump sites.2

The summary judgment evidence failed to show

harmful levels of any toxic or hazardous substance in the

well water. Plaintiffs presented no evidence beyond

conclusory allegations that Armstrong caused dangerous

levels of any chemical or substance in plaintiffs’ groundwa-

ter.

Plaintiffs’ own expert, Dr. George, acknowledged that

exposure to chemicals at the levels found in the Cooper well

were too low to cause cancer. (Vol. X, p. 4138). Dr. Miller,

plaintiffs’ expert physician, agreed that the chemicals found

would have to be present in much higher levels to cause

stomach cancer. We affirm the district court’s ruling that Dr.

Aughenbaugh’s conclusions are insufficient to create a fact

issue as to the presence of toxins on plaintiffs’ land. Viterbo,

826 F.2d at 422. Dr. George and Dr. Miller’s conclusions de-

pended on Dr. Aughenbaugh’s testimony. The medical ex-

perts also found an inadequate level of chemicals in

Cooper’s well to cause his cancer and is similarly insuffi-

cient to create a fact issue.

2 Only the Cooper plaintiffs appeal the district court’s grant of summary judg-

ment as to their personal injury claims. The Berry claimants do not appeal on

this issue. (Appellant's Reply Brief at 1).

Al12

Dr. Miller stated that the chemicals would have to be

significantly above the background levels revealed in the

soil and water testing to cause cancer. (Vol. 6, R. 2390). Dr.

George offered similar testimony. (Vol. 6, R. 2377-80). We

affirm the district court’s grant of summary judgment.

7. CERCLA

A plaintiff must show four elements to establish a

claim for relief under CERCLA; 42 U.S.C. @ 9601-9675:

1. the site in question is a facility;

2. the defendant is a responsible person;

3. a release or threatened release of a hazardous sub

stance occurred; and

4. the release or threatened release has caused the

plaintiff to incur response costs.Amoco Oil Co.

v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989).

The district court dismissed the plaintiffs’ CERCLA

claims because, despite almost two years of discovery, plain-

tiffs failed sufficiently to prove the presence of any hazard-

ous substances on their property to withstand summary

judgment. A site cannot be a facility unless a hazardous sub-

stance has been deposited stored disposed of or placed or

otherwise came to be located. . . at the site. Amoco, 889 F 2d

at 668, n. 4. As a matter of law, plaintiffs cannot meet the

first requirement of a CERCLA claim. In both Berry and

Cooper, plaintiffs failed to provide evidence of tests per-

formed on plaintiffs’ properties that showed particularized

findings that hazardous or toxic substances were present.

The district court’s summary judgment dismissing plain-

tiffs’ CERCLA claim is therefore affirmed.

8. Mississippi Trespass and Nuisance Claims

A13

Plaintiffs point to Phillips v. Davis Timber Co., Inc.,

468 So.2d 72 (Miss.1985), to support their common law nui-

sance and trespass claims. In that case, the Mississippi Su-

preme Court held that a plaintiff could state a claim for nui-

sance even if the levels of toxins found on the land did not

reach dangerous levels. However, a plaintiff must present

evidence of an invasion by defendant in order to withstand

summary judgment. Phillips, 468 So.2d 72, 79. The Cooper

and Berry plaintiffs failed to show such evidence of an in-

vasion by Armstrong to withstand summary judgment.

A cause of action for public nuisance is predicated

on a showing that the defendant's activities have injured a

public right. See Comet Delta, Inc. v. Pate Stevedore Co. of

Pascagoula, Inc., 521 So.2d 857, 860 (Miss.1988). The sum-

mary judgment record of testing by many agencies and or-

ganizations showed no threat to human health. Plaintiffs

presented no evidence of test results showing a level of pol-

lutants on plaintiffs’ property that could endanger the pub-

lic. The summary judgment dismissing the nuisance claim

is affirmed.

9. Property Damage

Plaintiffs’ expert appraiser, William Upchurch, con-

tended that the stigma attached to plaintiffs’ property had

significantly reduced its value. The district court concluded

that even if this expert testimony was accepted as true, plain-

tiffs could not recover under Mississippi law for reduced

market value caused by a stigma absent some physical dam-

age to plaintiffs’ land caused by the defendant.

Plaintiffs point to two Mississippi cases to support

the claim that a decrease in market value caused by a stigma

is compensable. See Phillips v. Davis Timber Co., 468 So.2d

72, 78 (Miss.1985); Bynum v. Mandrel Ind., Inc., 241 So.2d

629, 633 (Miss.1970). In both these cases, the defendant

physically damaged the plaintiff’s property. Plaintiffs have

Al4

cited no case, and the court has found none, holding that

Mississippi common law allows recovery for a decrease in

property value caused by a public perception without ac-

companying physical harm to the property. The district

court's dismissal of the state law property claims is affirmed.

CONCLUSION

Despite two years of discovery, plaintiffs failed to pro-

vide the district court with sufficient admissible evidence

that pollutants were on plaintiffs’ land or in their ground-

water to establish a genuine issue of material fact. Plain-

tiffs’ conclusory, unsupported allegations are insufficient to

avoid summary judgment. The opinion of the district court

is AFFIRMED.

Al15

APPENDIX B

J. WESLEY COOPER, ET AL., PLAINTIFFS , VS.

ARMSTRONG RUBBER COMPANY, DEFENDANT.

CIVIL ACTION NO. J88-0464(B)

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

August 13, 1991

MEMORANDUM

Barbour, Chief Judge.

This cause is before the Court on the Motion of De-

fendant Armstrong Rubber Company (“Armstrong”) for

Partial Summary Judgment and for Summary Judgment

pursuant to Rule 56 of the Federal Rules of Civi] Procedure.

Having considered the Motions together with supporting

and opposing memoranda and documentation, the Court

is of the opinion that the Motion for Partial Summary Judg-

ment should be granted and that the Motion for Summary

Judgment should be granted for the reasons as set forth be-

low.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiffs, J. Wesley Cooper, Estelle Cooper, Marga-

ret Cooper, Carolyn Cooper Guido, James Carter, Warren

G. Benson, and Leslie Mae Benson, are citizens of Adams

County, Mississippi. These Plaintiffs, and others who were

subsequently nonsuited, claimed that the dumping of in-

Al6

dustrial wastes by Armstrong on sites known as the Cain,

Carter, and Batieste sites and other sites scattered through-

out the City of Natchez and Adams County have caused

them both personal injury and property damages.

Armstrong began dumping wastes from its Natchez, Mis-

sissippi, tire plant at the Cain site in rural Adams County at

an undetermined time after the plant began operations in

1939 and continued dumping there until the early 1970s.

The Carter and Batieste properties are to the northwest of

the Cain site. Armstrong dumped at both of these sites in a

smaller volume and over a more limited period of time than

at the Cain site.

In their original Complaint, Plaintiffs asserted a num-

ber of environmental claims as well as common law claims.

Armstrong filed a Motion to Dismiss and first Motion for

Summary Judgment. The Court, by Order dated February

1, 1989, dismissed claims under the National Environmen-

tal Policy Act of 1969, 42 U.S.C. § 4321 et seq.; Clean Water

Act, 33 U.S.C. § 125 et seq.; Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. § 136S(a); Clean Air Act,

42 U.S.C. § 7401 et seq.; Safe Drinking Water Act, 42 U.S.C. §

300f et seg.; Toxic Substances Control Act, 15 U.S.C. § 2601

et seg.; Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.;

Resource Conservation and Recovery Act of 1976, 42 U.S.C.

§ 6901 et seg. (“RCRA”), and federal common law nuisance

claims. After the ruling on the first Motion for Summary

Judgment, the only claims remaining were the Comprehen-

sive Environmental Response, Compensation and Liability

Act (“CERCLA”) citizen suit claim for response costs pur-

suant to Section 9607(a)(iv)(b) and a claim for nuisance un-

der Mississippi common law. Subsequent to this ruling,

Plaintiffs have amended their Complaint twice, resulting in

the following claims being asserted: (1) the CERCLA claim;

(2) nuisance; (3) a claim for strict liability asserting

ultrahazardous activity; (4) trespass; (5) non-natural use of

land; and (6) negligence.

i hl

A17

This suit was filed on September 6, 1988. After the

first summary judgment opinion was issued, the Court held

a status conference on February 6, 1990, which resulted in a

scheduling order which allowed all parties to complete dis-

covery. Discovery has been completed. On November 5,

1990, Defendant filed its second Motion for Summary Judg-

ment and Motion for Partial Summary Judgment. Defen-

dant presents a number of arguments in support of its claims.

II. ANALYSIS

A . STANDARD FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure

states in relevant part that summary judgment “shall be ren-

dered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.” The United States Supreme

Court has held that this language “mandates the entry of

summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Moreover, the party moving for summary

judgment “always bears the initial responsibility of inform-

ing the district court of the basis for its motion, and identi-

fying those portions of ‘the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact. Id. at 323.

Summary judgment can be granted only if everything

in the record demonstrates that no genuine issue of mate-

rial fact exists. The district court, therefore, must not “re-

solve factual disputes by weighing conflicting evidence, ...

Al18

since it is the province of the jury to assess the probative

value of the evidence.n Kennett Murray Corp. v. Bone, 622

F.2d 887, 892 (5th Cir. 1980). The Fifth Circuit has stated the

standard as follows:

[Rule] 56(c) mandates summary judgment in any case

where a party fails to establish the existence of an

element essential to his case and on which he bears

the burden of proof. A complete failure of proof on

an essential element renders all other facts immate-

rial because there is no longer a genuine issue of

material fact. Rule 56(c) requires the district court to

enter summary judgment if the evidence favoring the

nonmoving party is not sufficient for the jury to en-

ter a verdict in his favor. When the moving party has

carried his burden under Rule 56(c), his opponent

must present more than a metaphysical doubt about

the material facts.

Washington v. Armstrong World Industries, Inc., 839 F.2d 1121,

1122-23 (5th Cir. 1988) (citations omitted). Summary judg-

ment is improper when the court believes it unlikely that

the opposing party will prevail at trial. National Screen Ser-

vice Poster Exchange. Inc., 305 F.2d 647, 651 (5th Cir. 1962).

The summary judgment motion permits adjudication

without prolonging the action with a time-consuming and

expensive trial where there is no genuine issue of material

fact. Rule 56(e) states in relevant part:

When a motion for summary judgment is made and

supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of

the adverse party’s pleadings, but the adverse party’s

response, by affidavits or as otherwise provided in

this rule, must set forth specific facts showing that

Al19

there is a genuine issue for trial.

Rule 56(e) does not permit mere conclusory allegations that

a factual dispute exists to defeat an otherwise properly sup-

ported motion for summary judgment. “Courts are particu-

larly indisposed to allowing conclusory allegations to de-

feat summary judgment after there has been—as here—op-

portunity for discovery. “ In re Agent Orange Product Liabil-

ity Litiaation, 611 F Supp. 1223, 1258 (E.D.N.Y. 1985), aff'd,

818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988).

B . MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant filed its Motion for Partial Summary Judg-

ment on the claims of Plaintiffs J. Wesley Cooper, Margaret

Cooper, Estelle Cooper, Carolyn Cooper Guido, James

Carter, Warren G. Benson, and Leslie Mae Benson arising

out of 59 of 64 sites identified by Wesley Cooper seeking

dismissal of all claims relating to these sites. On May 23,

1989, Plaintiffs filed a Motion for Class Certification, seek-

ing certification of a class comprised of all persons who have

owned land near dump sites on which Defendant allegedly

dumped hazardous wastes. The Court denied the class cer-

tification motion as well as a related consolidation claim.

The case has proceeded on the individual claims of the

named Plaintiffs. Counsel for Plaintiffs sought to add an

additional thirty or forty parties, but the Court denied the

proposed amendment by Order entered April 3, 1990. De-

fendant argues that by pursuing claims relating to sites scat-

tered throughout Adams County Plain class certification.

During the course of discovery, which ended on Oc-

tober 5, 1990, Plaintiff Wesley Cooper identified 64 sites in

Natchez and Adams County which he contends were con-

taminated by Defendant. The instant Motion for Partial Sum-

mary Judgment seeks dismissal of all claims arising out of

59 of these 64 sites which are not adjacent to or near Plain-

tiffs’ residences and which have not been shown to have

A20

caused injury to Plaintiffs or their properties. Excluded from

this Motion are claims based on the Cain and Batieste sites

which are in the same area where the three Cooper Plain-

tiffs live and the Carter site located on Plaintiff Carter’s farm.

These he subject of the separate (second) Motion for Sum-

mary Judgment. The 64 sites are identified in Addendum 1

by numbers 1 through 64 which correspond to the site-iden-

tifying numbers placed on the City of Natchez Map and the

general Highway Map, Adams County. SEE Exhibit 1 and

Exhibit 2 to the deposition of Wesley Cooper.'

Defendant contends that Plaintiffs have produced

no evidence that hazardous substances are present at any

of the sites and that Plaintiffs have produced no evidence

that Plaintiffs or their properties have been injured or dam-

aged as the result of anything emanating from these sites.

Defendant notes that, after more than two years of

discovery, none of the Plaintiffs has tested or investigated

the soil, water, or air at any of the 59 sites. Plaintiffs’ Reply

Brief refers the Court to the record which they say estab-

lishes conclusively that Defendant's waste stream “contains

toxic, hazardous and carcinogenic compounds along with

other plant waste such as reject tires, scrap rubber, burnt

rubber, etc.” In support of this argument, Plaintiffs filed an

unsworn and unsigned document which purports to be the

affidavit of their expert, Wilma Subra. Subra concludes,

without identifying any of the 59 sites which are the subject

of the Motion for Partial Summary Judgment, that massive

quantities of hazardous and toxic substances were placed

at the Cain, Carter, and Batieste sites and that since rem

! The 59 specific sites which are the subject of this Motion are sites: 1, 2, 3, 4,

5, 6,7, 8,9, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33,

34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 44A, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54,

55, 56, 57, 58, 59, 60, 61, 62, 63, and 74. The Sadie V.. Thompson School

property was identified by Plaintiffs as site number 74, probably an error

since numerically it is the 64th site. Excluded fr om this Motion are sites 10

(Cain), 11, 12, 13 (Batieste), and 14 (Carter).

A21

nants of the tire waste stream (scrap rubber and tires) have

been found these products-should be viewed as markers.

Subra concludes that “this leads to the obvious conclusion

that where there are remnants of the tire plant waste stream

which is reject tire and rubber wastes in order to protect the

environment and public health it must be assumed that there

has also been a release of hazardous materials at the other

sites identified by Mr. Cooper.” She does not draw her con-

clusions from any test data but relies on an inference that

remnants of a waste stream are reliable indicia of a release

of hazardous materials. Having no factual basis for her

conclusory remarks and having conducted no scientific in-

vestigation, her opinion is inadmissible. Expert testimony

will not salvage a plaintiff’s case from summary judgment

unless that testimony would be admissible into evidence.

Viterbo v. Dow Chemical Co., 646 F. Supp. 1420, 1424 (E.D.

Tex. 1986), aff'd, 826 F.2d 420 (5th Cir 1987); Fed. R. Civ. P

56(e). Although Federal Rule of Evidence 703 broadens the

acceptable bases of expert opinion, “this does not extend to

‘make summary judgment impossible whenever produced

an expert to support its position.” Viterbo, 826 F.2d at 422

(queting Merit Motors. Inc. v. Chrysler Corp., 569 F.2d 666,

673 (D.C. Cir. 1977)). Conclusory opinions by qualified ex-

perts are insufficient to defeat a motion for summary judg-

ment.

Even if any of the materials at the site had been tested

and determined to be hazardous, Plaintiffs have not offered

any proof that their properties have been harmed or that

they have sustained personal injuries by the eondition at

these sites. Plaintiffs have raised no genuine issues of mate-

rial fact. The Court, therefore, grants the Motion of Defen-

dant for Partial Summary Judgment on the elaims for

nuisanee, trespass, negligenee, non-natural use of land, and

ultrahazardcus activity conneeted with all of the 59 sites.

Defendant asserts that Plaintiffs have failed to raise

genuine issues of material fact concerning a “release or

A22

threatened release of hazardous substances” on any of the

59 sites. Plaintiffs seek to recover “response costs” under

CERCLA for cleaning up the environment. They contend

that there have been releases of hazardous substances into

the environment and that they have sustained response

costs. Before Plaintiffs can recover for such costs, they are

required to show that there has been a “release or a threat-

ened release of hazardous substances” as defined in the

CERCLA statute. 42 U.S.C. § 9601 et seq. See Prudential In-

surance Co. of America v. United States Gypsum, 711 F. Supp.

1244, 1251 (D.N.J. 1989); Artesian Water Co. v. New Castle

County, 659 F. Supp. 1269, 1281 (D. Del. 1987).

Under CERCLA a “release” is defined as “any spilling,

leaking, pumping, pouring, emitting, emptying, discharg-

ing, injecting, escaping, leaching, dumping, or disposing into

the environment .. .” 42 U.S.C. § 9601(22). A “hazardous

substance” is defined under CERCLA in technical terms:

(A) Any substance designated pursuant to §

1321(b)(2)(A) of Title 33, (B) any element, compound, mix-

ture, solution, or substanee designated pursuant to § 9602

of this title, (C) any hazardous waste having the character-

istic~ identified under or listed pursuant to § 3001 of the

Solid Waste Disposal Act [42 U.S.C.A. 6921] (but not in-

cluding any waste the regulation of which under the Solid

Waste Disposal Act [42 U.S.C.A. § 9601 et seq.] has been

suspended by act of Congress), (D) any toxic pollutant listed

under § 1317(a) of Title 33, (E) any hazardous air pollutant

listed under § 112 of the Clean Air Act [42 U.S.C.A. § 7412],

and (F) any eminently hazardous chemical substance or

mixture with respect to which the administrator has taken

action pursuant to § 2606 of Title 15.

42 U.S.C. § 9601(14). In other words, Plaintiffs can-

not simply point to tires, rubber scraps, and drums and es-

tablish a release or threatened release of hazardous sub-

stances. As to these 59 sites, the record is silent as to the

release of hazardous substances into the environment. Plain-

tiffs have failed to present proof that listed substances, or

substances which are recognized by statute or regulation as

being hazardous, are actually present at one or more of the

59 sites in quantities which exceed regulatory standards.

Accordingly, partial summary judgment on all CERCLA

claims arising out of these 59 sites will be granted.

The Court notes that in response to the Motion for

Partial Summary Judgment Plaintiffs urge that “defendant

has come forward with no evidence to support its position

pursuant to Rule 56 of the Federal Rules of Civil Procedure.”

On the contrary, Defendant filed an Appendix with its Mo-

tion that establishes Plaintiffs have not cited any specific

hazardous substances at the 59 sites, they have not been

harmed by any condition at the sites, and their property

has not been adversely affected. Plaintiffs’ evidence in sup-

port of their CERCLA claim is predicated on Subra’s

conclusory assertions. The Court has determined that

Subra’s affidavit is inadmissible. However, even were it

admissible, her opinion, based upon a series of inferences,

does not create a fact issue on whether any release of a haz-

ardous substance has occurred at any of the 59 sites. And in

a CERCLA case a plaintiff is required to establish a release

of a hazardous substance at the site involved. In the instant

case Plaintiffs have failed to present admissible evidence

raising a material dispute as to that issue.

The United States Supreme Court has stated that a

nonmoving party which bears the burden of proof at issue

“must [when a summary judgment motion is filed] go be-

yond the pleadings and by her own affidavits . . designate

specific facts showing that there is a genuine issue for trial.”

Id. at 274. Plaintiffs have not established by affidavit or oth-

erwise that there has been a release or a threatened release

of a hazardous substance onto any of the 59 sites. Accord-

ingly, the Court determines that there is no genuine issue of

material fact and that the CERCLA claims arising out of the

A24

59 sites should be dismissed.

The Court concludes that Defendant Armstrong is

entitled to summary judgment as to all claims under

CERCLA, nuisance negligence, non-natural use of land,

and ultrahazardous activity which arise out of the 59 sites.

C. MOTION FOR SUMMARY JUDGMENT

Defendant contends that Plaintiffs have produced

insufficient evidence and can prove neither damages nor a

causal link between Armstrong's disposal practices and

Plaintiffs’ claimed damages on the properties owned by

Plaintiffs (sites 10, 11, 12, 13, and 14). Defendant argues that

Plaintiffs have not offered admissible evidence to support

their allegation that there is a causal link between actions of

Defendant and any alleged personal injury or property dam-

age of Plaintiffs. After two years of discovery, Defendant

argues, Plaintiffs have at best raised a “metaphysical doubt”

as to the existence of actual damages and are incapable of

establishing the essential causal link.

Defendant asserts that all personal injury claims

should be dismissed. James Carter does not assert a per-

sonal injury claim. Mr. and Mrs. Benson claim that they have

suffered personal injury from exposure due to their prox-

imity to the Cain site. Neither, however, have produced any

evidence at all in support of their personal injury claims.

There is no medical nor toxicological or other expert evi-

dence to link the Bensons’ various physical complaints to

the dumping practices of Armstrong. Wesley Cooper claims

that drinking the well water allegedly contaminated with

arsenic, cadmium, chromium, and nickel over a period of

years caused him to have stomach cancer. Neither Cooper’s

wife, mother, nor daughter have produced any evidence

concerning personal injury claims. Neither Plaintiffs’ toxi-

cologist, Dr. William George, nor their internist, Dr. Larry

Miller, has examined any medical evidence or records other

than those of Mr. Cooper. They have, therefore, rendered

A25

no opinions on any medical claims other than those of Mr.

Cooper. In order to survive summary Judgment on his per-

sonal-injury claim, Wesley Cooper must present sufficient

proof of eausation. In response Plaintiffs argue that all Plain-

tiffs should be entitled to recover for emotional distress, but

Plaintiffs do not attempt to refute their admissions that, with

the exception of Wesley Cooper, they have no mediecal,

toxieological, or other expert evidenee to link their various

physical complaints to Armstrong’s waste disposal at the

subjeet sites. Plaintiffs’ brief argues that Wesley Cooper’s

stomach cancer was caused by his drinking his well water

which was contaminated by chemicals from the Cain site.

In support of this argument, they rely on the deposition tes-

timony of Dr. George and the affidavit of Dr. Miller. Both

Drs. George and Niller recognize that for the chemicals at

issue to have caused Cooper’s caneer his drinking water

had to have concentrations above background levels of the

chemicals in question.

Defendant cites the affidavit of their expert toxicolo-

gist, Dr. Raymond D. Harbison, and medical doctor, Harris

Busch, as stating the basic steps a scientist must go through

to determine the cause of cancer. These include the follow-

ing:

(1) that the chemical in question is capable of

producing the disease in questior in hu

mans;

(2) that the individual was exposed to the chemical

in question;

(3) that the exposure resulted in a dose;

(4) that the dose was of sufficient magnitude to

have caused the disease (dose-response);

(5) for chronic effects, that the exposure was of

sufficient duration to have caused the dis

ease;

(6) that alternative confounding or contributing

A26

factors to the disease have been considered

and eliminated; and

(7) that the alleged effect is biologically plausible.

Assuming all of these factors have been evaluated and an-

swered affirmatively, in order to attribute the chemical ex-

posure to a specific source, the following additional step

must be considered:

that alternate sources of exposure to the chemical

have been considered and eliminated.

The rnost salient item in the checklist is that the per-

son who has a disease must have been exposed to the chemi-

cal which is accused of causing the disease in a high enough

level and for a sufficient duration to have caused the dis-

ease. In order to defeat this motion for summary judgment

on the personal injury claims, Wesley Cooper must present

evidence that the dose he received, i.e., the concentrations

of chemicals from his well water that he drank, were suffi-

cient to cause cancer. Drs. Busch and Harbison in their affi-

davit explain that the necessary dose-response relationship

cannot be proven as to the subject chemicals. In the major-

ity of analyses conducted on Mr. Cooper’s well water, ar-

senic, cadmium, chromium, and nickel were not detected

in the water. Moreover, due to their natural occurrence in

the environment the general populace is regularly exposed

to the chemicals arsenic, cadmium, chromium, and nickel

everyday. Both Defendant and Plaintiffs’ experts agree that

proof of the dose-response relationship is essential for cau-

sation. The maximum exposures that Mr. Cooper may have

received from his drinking water, does not exceed back-

ground levels that we all are faced with every day.

Dr. Miller, Mr. Cooper’s medical expert, agreed that

in order for the chemicals to cause cancer the exposure

would have to be above background levels—” in fact, sig-

A27

nificantly above those levels.” At the end of his deposition,

Dr. George, Plaintiffs’ toxicologist who had previously

speculated that combinations of the chemicals in question

at sufficient concentrations could cause cancer, acknowl-

edged that the exposure from the low levels of these chemi-

cals found in Cooper’s well water was not adequate to cause

his cancer:

Q: And at these levels of concentration, you

question whether or not his drinking, that

water would have caused his cancer?

A: ...in answer to your question, presently at

those lower concentrations I don’t think that

I could make the statement that those con

centrations had caused that effect.

Dr. Miller does not state that exposure to the low

levels of chemicals found in Mr. Cooper’s well will cause

cancer. Dr. Miller’s affidavit is deficient since he cites no

references to accepted medical studies to support his opin-

ion that the chemicals in question cause stomach cancer, nor

does he cite any epidemiological study to support his posi-

tion. Brock v. Merrell Dow Pharmaceuticals. Inc., 874 F.2d 307,

312-13 (5th Cir. 1989), cert. denied, NOS. Ct. 1511 (1990) (lack

of epidemiologic proof of a link between exposure to

bendectin and birth defects was fatal to plaintiffs’ case);

Washington v. Armstrong World Industries. Inc., 839 F.2d 1121,

1123 (5th Cir. 1988) (expert’s causation opinion was excluded

for summary judgment purposes since the expert’s affida-

vit revealed no evidence of causation that he could produce

at trial). Dr. Miller now bases his opinion on the assump-

tion that Cooper’s water was contaminated by high levels

of chemicals from 1950 through the 1970s. He relies on the

affidavit of Dr. Nolan Aughenbaugh, Plaintiffs’ geotechnical

engineer, to establish his opinion.

A28

The Court notes that Dr. Aughenbaugh cannot es-

tablish a proper foundation for his opinions and the Court

thus rejects his testimony. As of the date of his deposition,

Aughenbaugh had not been to the sites nor had he ever

worked on a geological study in Adams County. The sole

basis for his opinion was his review of the Malcolm Pirnie

studies, which after only a few hours of study and no inde-

pendent research in the field or review of the field data he

rejected. Without providing any facts or data or accepted

scientific methodology, he offers unqualified conclusions.

His opinions have no basis in fact or data and, therefore,

must be rejected. Rule 703 of the Federal Rules of Evidence.

Aughenbaugh is in the same position as the plain-

tiffs’ expert in Washington. His geological opinions are not

linked to the actual facts at the Cain, Carter, and Batieste

sites. He simply speculates, based primarily on experience

with sites in Illinois, that certain exceptional geological con-

ditions could exist and, if they did, they could cause Malcolm

Pirnie’s conclusions to be in error. Speculation followed by

speculation, unlinked to the case specific facts, should be

rejected. Malcolm Pirnie, who conducted extensive studies

in the field, is in the role of the examining physicians in

Washinaton. Aughenbaugh is in the role of the

nonexamining physician who speculates and draws nega-

tive inferences. 839 F.2d at 1123-24. His testimony is, accord-

ingly, rejected.

Furthermore, Plaintiffs’ experts have failed to rule

out alternate causes of stomach cancer. This omission is sig-

nificant because stomach cancer occurs regularly in the gen-

eral population. Cigarette smoking is a factor generally as-

sociated with stomach cancer and Mr. Cooper has over a

forty-year continuing smoking history.

The Fifth Circuit requires proof from the plaintiff that

the plaintiff was exposed to the accused substance in an

amount and of such a duration to have caused the alleged

injury. In Osburn v. Anchor Laboratories. Inc., 825 F.2d 908,

A29

910 (Sth Cir. 1987), cert. denied, 485 U.S. 1009 (1988), it was

undisputed that the plaintiff had used chloramphenicol to

treat cattle and had spilled the drug on his hands during

treatment, providing the requisite exposure. In Thompson v,

Southern Pacific TransDortation Co., 809 F.2d 1167 (Sth Cir.),

cert. denied, 484 U.S. 819 (1987), plaintiff’s expert, a chemical

engineer, testified how the plaintiff could have been exposed

to dioxin through ingestion, inhalation, absorption into the

body. However, the engineer and plaintiff's toxicologist were

unable to testify as to the amount and duration of the

plaintiff's actual exposure:

The engineer did not testify, however, about

Thompson’s degree of exposure to dioxin; he did not

know where Thomp~on worked at Luling or the

amount of time Thompson spent at the plant site. In

short, his testimony simply indicated that someone

working around dioxin-contaminated soil mj

velop porphyria and described how that possibility

could be established without specifically addressing

Thompson’s exposure.

A second expert, a toxicologist, did testify that di-

oxin caused Thompson’s porphyria. He based his

opinion on the fact that Thompson worked at a site

where dioxin was found and therefore “definitely

could have come into contact with it.” He did not,

however, have any knowledge about the amount or

duration of Thompson’s exposure. There was, then,

an insufficient factual basis for his opinion.

Id. at 1169 (emphasis added). Accordingly, the Fifth Circuit

reversed the district court and granted the defendant's mo-

tion for judgment notwithstanding the verdict. Id.

In the instant case Wesley Cooper’s personal injury

claims and the personal injury claims of the other Plain-

A30

tiffs must fail because they have failed to create a genuine

issue of material fact. Plaintiffs have failed to produce

evidence of a causal link sufficient to withstand summary

judgment on the strict liability and negligence claims. See

Early-Gary. Inc. v. Walters, 294 So. 2d 181, 186 (Miss. 1974)

(under Mississippi law, in strict liability and negligence

cases, plaintiff has burden to prove injury was caused by

acts or omissions of defendant). Without some proof to

support the element of causation, the strict liability and

negligence-claims must fail. Accordingly, the Motion for

Summary Judgment as to all claims for personal injury is

granted.

Defendant asserts that all property damage claims

should be dismissed. In their response Plaintiffs “voluntar-

ily dismiss” the property damage claims of Warren G.

Benson, Leslie Mae Benson, Estelle Cooper, and Carolyn

Guido. Thus, the only claims before the Court are those of

Wesley Cooper and Margaret Cooper and Tom Carter.

William Upchurch, Plaintiffs’ real estate expert, sur-

mises that based on the assumptions that the ground water

is polluted and that a stigma is attached to the Cooper prop-

erty the property is worth only 28% to 33% of its normally

appraised value. Upchurch states that, absent water pollu-

tion and the stigma, the property would be worth its full

appraised value and continue to appreciate. As discussed

above, Plaintiffs rely on Aughenbaugh’s affidavit to sup-

port their assertion that the chemicals which allegedly con-

taminate Cooper’s well came from the Cain site. The Court

has determined that Aughenbaugh’s affidavit fails to create

a genuine issue of material fact.

For four years the United States Environmental Pro-

tection Agency (“EPA”), the Mississippi Bureau of Pollu-

tion Control (“MBPC”), and, pursuant to MBPC orders and

supervision, Malcolm Pirnie Engineers, Inc., a national en-

vironmental consulting firm employed by Armstrong, have

been studying the Cain, Carter, and Batieste sites to deter-

A31

mine if they present a risk to human health.’ A-basic fact

emanating from the study is that the Natchez aquifer, which

lies approximately 150 feet below the surface and from

which the local residents, including Mr. Cooper, pump their

private well water, flows in a west-northwest direction.

Any contaminants that make their way through the

150 feet of soil to the Natchez aquifer below the Cain site

would flow to the west, away from Mr. Cooper’s house,

toward the Mississippi River. The observed flow in the eight

monitoring wells drilled at the Cain and Batieste sites con-

firm this west-northwest flow direction. The logs for these

eight wells, made by the geologist in the field who studied

and charted the soil as the wells were being drilled, estab-

lish that the reason the aquifer flows to the west-northwest

is because that is the downhill direction. These eight wells

show that as you go west from Monitoring Well 5, located

to the east of the Cain site, to Monitoring Well 4A and on to

the three wells at the Batieste site, the aquifer continually

drops in elevation. While underground aquifers flow

through rocks and sands and are different in certain respects

from surface streams, they do flow downhill just like sur

face water.

Aughenbaugh speculates that the Natchez aquifer is

polluted. These speculations are refuted by the Malcolm

Pirnie’sstudies; defendant’s hydrogeologist, Dr. Robert

Sterrett’s Affidavit; the Affidavit of Sam Mabry, the Chief of

the hazardous Waste Division of the BPC; and the action of

the MBPC, which in letters from Trey Fleming to local resi-

dents advised that their water was safe to drink.

2 This has been an exhaustive study costing over $520,000. Both the EP A and

MBPC have collected their own samples and made independent analyses of

the field data. Malcolm Pirnie Engineers, Inc. has drilled water wells, taken

surface samples, made borings, and taken water samples pursuant to the

professional protocol used throughout the country for envir onmental site

studies.

A32

Aughenbaugh attempts to question whether the

natural flow of the aquifer can be reversed and whether such

a reversal could be sustained over a period of years so that

Cooper’s well could be contaminated. Aughenbaugh sur-

mises that either of two phenomena could reverse that flow:

(1) Mr. Cooper’s well or wells in the area could pump at a

sufficient rate to cause a reversal of the flow back to his well;

and/or (2) the Mississippi River at high water could cause

the water to back up to Cooper’s well. The Court observes

that this is sheer speculation about the possible, not a study

of the data or application of any scientific methodology. Dr.

Sterrett, using Malcolm Pirnie field-tested data, refutes the

argument that Cooper’s well could back up the natural flow

sufficiently to effect groundwater under the Cain site and

demonstrates that the backup of the Mississippi River at

the highest level in the last fifty years would not even cause

an impact on water from the Batieste site, the closest site to

the river.

Aughenbaugh’s response to this is that the math-

ematical models used for these purposes do not always

work. He bases his response on the necessity for the correct

data being plugged in order to generate the correct answers.

Aughenbaugh’s refutation is based on speculation- and gen-

eralized assumptions. The United States Supreme Court has

recently stated the law regarding conclusory allegations:

In ruling upon a Rule 56 motion, “a District Court

must resolve any factual issues of controversy in fa-

vor of the non-moving party” only in the sense that,

where the facts specifically averred by that party con-

tradict facts specifically averred by the movant, the

motion must be denied. That is a world apart from

“assuming” that general averments embrace the

“specific facts” needed to sustain the complaint. . . .

Rule 56(e) provides that judgment ~shall be entered”

against the nonmoving party unless affidavits or

A33

other evidence “set forth specific facts showing that

there is a genuine issue for trial.n The object of this

provision is not to replace conclusory allegations of

the complaint or answer with conclusory allegations

of an affidavit.

It will not do to “presume” the missing facts because

without them the affidavits would not establish the

injury that they generally allege. That converts the

operation of Rule 56 to a circular promenade:

plaintiff's complaint makes general allegations of

injury; defendant contests through Rule 56 existence

of specific facts to support injury; plaintiff responds

with affidavit containing general allegation of injury,

which must be deemed to constitute averment of req-

uisite specific facts since otherwise allegation of in-

jury would be unsupported (which is precisely what

defendant claims it is) .

Lutan v. National Wildlife Federation, 111 L.Ed.2d 695,

716-17 (1990). Plaintiffs predicate their attempt to defeat the

Motion for Summary Judgment on conclusory allegations

that are unsupported by specific facts. Aughenbaugh’s ar-

guments that Malcolm Pirnie’s study was flawed is an at-

tempt to obfuscate the fact that there is no factual basis for

Wesley Cooper’s property damage claim. There is no evi-

dence that Defendant’s dumping one-third of a mile, ac-

cording to Plaintiffs, or two-thirds of a mile, according to

Defendant, away from Wesley Cooper’s house poses any

threat to his house since the only route in which her prop-

erty could realistically be exposed would be through the

groundwater and the groundwater runs away from his prop-

erty, not towards it. Plaintiff Wesley Cooper has failed to

create a genuine issue of material fact on his claim for prop-

erty damages. Accordingly, the Motion for Summary Judg-

ment is granted on Wesley and Margaret Cooper's prop-

A34

erty damage claims.

James Carter’s claim for property damages is pre-

mised on the appraisal of his property by Plaintiffs’ Will-

iam Upchurch. Upchurch assumes that waste located on the

property is hazardous and that a cleanup of the property

sary. Based on these assumption, Upchurch contends that

the property would have a negative value due to a neces-

sary cleanup costing hundreds of thousands of dollars. De-

fendant asserts that Upchurch’s assumptions are unfounded

in fact and should be disregarded with respect to the Carter

property.

Plaintiffs agree that Mr. Carter permitted Armstrong

to dump industrial waste on his property. Plaintiffs assert

that Armstrong property, but they do not specify what haz-

ardous substance was dumped. Well samples, stream

samples, and drum content samples have been taken by

MBPC from the Carter property. The Mississippi Depart-

ment of Environmental Quality has recently given notice

that:

This letter is to inform you that the above referenced

site has been referred to the Non-Hazardous Waste

Unit of the Office of Pollution Control for further

agency oversight and management. Existing site in-

formation provides no indication that hazardous sub-

stances were managed or disposed on the Carter

property.

The Technical Assistance Team of the EPA sampled

the Carter site. As a result of the testing, the Superfund

branch of the EPA concluded that the sampling revealed no

contaminates that “approach a level of concern.” Likewise,

the Agency for Toxic Substances and Disease Registry con-

cluded that the sample results did “not indicate that a pub-

A35

lic health threat exists from the use and consumption of the

area groundwater.” The Court thus concludes that

Upchurch’s assumptions of hazardous waste contamination

of the Carter property are not admissible.

The only claim for property damage remaining is

whether “devaluation” caused by a stigma attaching to

property is compensable if the basis for the stigma is not

grounded in fact. Defendant contends that this perceived

property value reduction is not a compensable damage to

property under Mississippi law.

No Mississippi case has addressed the issue of re-

covery for reduced market value caused by stigma. Defen-

dant, however, cites Dennery v. Huahes, 59 So. 2d 316 (Miss.

1952), as indicating that this would not be a compensable

damage under Mississippi law. In Dennery the plaintiffs

sought to enjoin the establishment of a cemetery in the vi-

cinity of their homes, alleging that the cemetery would cause

them to suffer irreparable damage to their property values.

The Mississippi Supreme Court held that there is no pri-

vate nuisance “when the only basis of complaint is that the

market and rental value of neighboring residential prop-

erty is lowered because of the depressing psychological in-

fluence whicha cemetery exerts.” Id. at 318. Plaintiffs’ proof

of damage is Upchurch’s opinion that a stigma has dimin-

ished the market value of the property. Plaintiffs point out

that Dennery states that a cemetery would be a nuisance if

drainage from the cemetery would contaminate the waters

of adjoining property owners. As discussed above, Plain-

tiffs have not produced sufficient proof on the presence of

the alleged hazardous wastes on Plaintiffs’ properties in

order to survive summary judgment on the toxic waste

claims. The proof presented on the contamination issue is

insufficient.

The cases cited by both Plaintiffs and Defendant lead

the Court to the conclusion that the Supreme Court of Mis-

sissippi, if presented with this issue, would hold that a mar-

A36

ket stigma is not a compensable damage absent a confirmed

physical property damage or a confirmed threat of physical

property damage. In the instant case, the appraisal reduc-

tion is based on the general beliefs that there are dangerous

chemicals in the area causing health problems. However,

Plaintiffs have not identified such substances on either

Carter’s property or the property of Wesley and Margaret

Cooper. Accordingly, the property damage claims for strict

liability asserting ultrahazardous activities and non-natu-

ral use of land are dismissed.

Plaintiffs allege that Defendant is liable for creating

a nuisance. Nuisance is one party’s unreasonable interfer-

ence with use and enjoyment of one~s property. The com-

mon law of nuisance does not protect a landowner from

interference or harm resulting from a previous use of his

property by a prior landowner. See Philadelphia Electric Co.

v. Hercules. Inc., 762 F.2d 303 (3d Cir.), cert. denied, 474 US.

980 (1985) (prior owner and producer of wastes not liable to

successors in title). Plaintiffs’ claims involve a previous use

of property, and, furthermore, Armstrong was not a previ-

ous owner of the subject properties. Accordingly, the Court

grants summary judgment on Plaintiffs’ nuisance claims.

Plaintiffs allege “trespassory” invasions of their prop-

erty. As the Court observed in Sashfras v. Armstrona Rubber

Co.. et al., under Mississippi law, “where there is no actual

physical invasion of the plaintiff’s property, the cause of

action is for nuisance rather than trespass.” Blue v. Charles F.

Hayes & Associates. Inc., 215 So. 2d 426, 429 (Miss. 1968).

Migration of substances from the property of one landowner

to that of another does not constitute a “physical invasion.”

Id. Furthermore, the transportation of wastes onto Plaintiff

Carter’s land is not a trespassory invasion because such

dumping was performed with Carter’s consent. Further-

more, for the reasons as set forth above, Plaintiffs’ trespass

claims cannot be considered as nuisance claims. Therefore,

the Court grants summary judgment on the trespass claims.

A37

Defendant contends that with regard to the CERCLA

claim the Court should defer to the primary jurisdiction of

the Mississippi Department of Environmental Quality

(“DEQ”) and its Pollution control agency, the MBPC. The

doctrine of primary jurisdiction is “concerned with promot-

ing proper relationships between the courts and adminis-

trative agencies charged with particular regulatory duties.”

United States v. Western Pacific Railroad, 352 U.S. 59, 63 (1956).

In the first Memorandum Opinion and Order entered in this

case on February 1, 1989, the Court stated, after dismissing

most of the federal environmental causes of action, that “ju-

dicial resolution of the remaining claims will not unduly

interfere with ongoing administrative proceedings.” The

Court is still of that opinion. Accordingly. the Court will not

stay Proceedings in this case as to the CERCLA issues.

Plaintiffs assert that they are entitled to clean up costs

and remediation at the sites pursuant to CERCLA. CERCLA

only imposes liability where a (1) “hazardous substance”

or is threatening release, (3) the hazardous substance is

found on the site (4) in a quantity which exceeds some fed-

eral or state standard, (5) the hazardous substance found

on the site . same type of a substance disposed of by defen-

dant on the site, (5) the presence of the hazardous substance

on the site poses an imminent and substantial threat to health

or the environment. Violet v. Picillo, 648 F. Supp. 1283, 1289

(D.R.I. 1986). If any one of these factors is absent, the entire

CERCLA claim must be dismissed, as a matter of law.

Plaintiffs cite as authority for their position United

States v. Hardage, 733 F. Supp. 1424, 1429 (W.D. Okla. 1989).

In that case is was undisputed that hazardous substances

had been release into the groundwater at the site and that

the hazardous substances had migrated off the site. Defen-

dant contends that those facts are not present herein. De-

fendant argues that there is no evidence that hazardous sub-

stances have contaminated the groundwater or migrated

off site. Hardage recognizes that for response costs to be

A38

awarded the plaintiffs must establish that hazardous sub-

stances “pose an imminent and substantial threat to the

public health and welfare.” 733 F. Supp. at 1431. Defendant

asserts that no such threat exists at the sites at issue herein.

Plaintiffs offer the affidavit of Dr. Ralph Pike con-

cern for the magnitude of wastes at the Cain site. Wilma

Subra argues that insufficient testing has been done and that

there needs to be more investigation. Any assertion by Plain-

tiffs’ that more discovery and investigation will reveal facts

to support their conclusion will not serve, in and of itself, to

defeat a summary judgment motion. The Fifth Circuit has

stated on this issue that “[a] claim that further discovery or

a trial might reveal facts which the plaintiff is currently un-

aware of is insufficient to defeat the motion [for summary

judgment].” Washington, 839 F.2d at 1123 (citing Woods v.

Federal Home Loan Bank Board, 826 F.2d 1400, 1414-15 (5th

Cir. 1987)). Plaintiffs have not identified any hazardous

chemicals present at the home sites which present signifi-

cant risks to health.

Rather than presenting an analysis which they gen-

erated, Plaintiffs complain that all actions so far have been

by Malcolm Pirnie, which was hired by Defendant. Plain-

tiffs point out that the priority toxic pollutant list used by

Malcolm Pirnie as a listing of analytical parameters for these

sites did not include the various tire industry waste of con-

cern. Thus, argues Plaintiffs, the MBPC and Defendant have

spent three years looking for compounds at the site which

are not representative of the wastes which would be ex-

pected from a tire manufacturing plant. Consequently,

Plaintiff's experts Pike and Subra both maintain that a large

percentage of material at these sites and in the ground wa-

ter have not been identified. The Court is of the opinion

that if Plaintiffs believed that an inadequate investigation

has been conducted by Defendant then it was incumbent

on Plaintiffs to conduct their on investigation in order to

present proof of their claims to this Court.

——— OO = =~Ss\—s¥—s—eeeesetstststs—‘—

- . Boat:

A39

The results of the investigations are that chemicals at

the site do not pose an imminent hazard to human health.

Plaintiffs have had ample time and opportunity to develop

adequate evidence. Plaintiffs attempt to cover their inabil-

ity to present admissible proof by arguing that Armstrong's

investigation is inadequate. There must be more than a

metaphysical doubt as to material facts to defeat a motion

for summary judgment. Matsushita Electric Industrial Co. v.

Zenith Radio Corp., 475 U.S. 574 (1986). Without an identifi-

cation of a hazardous substance on the site, the CERCLA

claim must fail. Accordingly, the Motion of Defendant for

Summary Judgment is granted as to Plaintiffs’ CERCLA

claims.

IT IS, THEREFORE, ORDERED that the Motion of

Defendant for Summary Judgment is hereby granted as to

all claims of Plaintiffs. A separate judgment will be entered

in this cause. SO ORDERED this the 13th day of August,

1991.

Signed

William H. Barbour, Jr.

CHIEF JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.