# Petition for Writ of Certiorari — Cooper v. Armstrong Rubber Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1718%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1117 ## Text IN THE Supreme Court of the United States October Term, 1993 J. WESLEY COOPER, MARGARET COOPER and JAMES CARTER Petitioners V. 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 iV 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 vi 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 D. § 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 2 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: (c) .. . The judgment sought shall be rendered forthwith if the 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. 4 3 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 4 (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. 5 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 8 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, 9 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, 10 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.” 11 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- 12 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. 13 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). 14 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 15 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”. 16 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). 17 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. 18 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 19 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. 20 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 21 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. 22 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 la 23 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).” 24 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). 25 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- 26 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. 27 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 Al 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. A2 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. A3 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). i A4 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). A5 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 A6 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 A7 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 A8 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 A9 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1718%3A1. Public record. Not legal advice.