Paducah Gaseous Diffusion Plant Radiation Litigation Electronic Brief

Transcription

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
WARREN SMITH, et al.,
Plaintiffs,
vs.
CARBIDE AND CHEMICALS
CORPORATION, et al.,
Defendants.
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Case No. 5:97CV-3-M
PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM OF AUTHORITIES IN
SUPPORT OF TESTIMONY OF JOE SLOAN’S REAL ESTATE APPRAISAL
TESTIMONY
Plaintiffs present this supplemental memorandum of authorities in connection
with the Daubert hearing on the admissibility of the real estate appraisal testimony of
Plaintiffs’ expert Joe Sloan. Plaintiffs would show that well-reasoned cases demonstrate
that the methodologies used by Sloan -- the “before and after” and “highest and best
use” models of appraisal -- are reliable and accepted under Daubert and are in fact the
most appropriate models applicable to cases of partial taking, contamination and
property impairment. More specifically the before-and-after rule, requires measuring the
difference in the value of the land immediately before and immediately after the taking. In
this case Sloan’s use of the date of August 9, 1999 as the specific appraisal date was
appropriate as that date represents the date of “complete injury” or taking based upon
the revelations of contamination that occurred on August 8, 1999 in the Washington Post
and August 9, 1999 in the Louisville Courier-Journal.1
1
See Restatement (Second) of Torts § 930 (3) (“ The damages for past and prospective
invasions of land include compensation for:
(a) the harm caused by invasions prior to the time when the injurious situation became
In a recent Texas case, Westtex 66 Pipeline Co. v. Baltzell, 2002 WL 21665312 (Tex.
Ct. App. , July 17, 2003) a gas company sought to condemn a 50 foot wide strip of the
plaintiff’s property for a pipeline. The court considered Daubert challenges to the expert
real estate appraisers for the land owners (experts Kangieser and Edmonds) who used
a comparable sales approach (as used by the defendants in this case) instead of a
“before and after” method. The court reasoned that the before and after method [as
used by Sloan in this case] was the appropriate real estate appraisal method (requiring
complete and comparatively enduring, , and (b) either the decrease in the value of the
land caused by the prospect of the continuance of the invasion measured at the time
when the injurious situation became complete and comparatively enduring, or the
reasonable cost to the plaintiff of avoiding future invasions..”). Section 930 also
provides, at comment b (“Obviously, the standard, to be fair to the injured person, must
not look to a time before the invasions have begun and the effects of the injurious
conditions have been revealed in their full extent. At the time when the injurious
situation has become complete and comparatively enduring, the amount of depreciation
because of the prospect of future invasion can be determined with greatest accuracy.”).
Section 930 of the RESTATEMENT (SECOND) OF TORTS was cited with approval in Nieman
v. NLO, Inc.. 108 F. 3d 1546, 1557 (6th Cir. 1997):
When there is a continuing trespass, such as that caused by the erection of a
structure upon the land of another or when there is a series of harms caused by
the existence of a structure or by the operation of a business outside the land, the
time when the statute of limitations begins to run depends on the rules stated in
§ 161 (continuing trespass) and those stated in § 930.Restatement (Second) of
Torts § 899 cmt. d (1979). Comment d also states that "when there is a series of
continuing harms the plaintiff, under the rules stated in § 161 and § 930, has an
election to recover or is permitted to recover damages only for harm to the use of
the land up to the time of trial. In cases of this type, the statute does not run from
the time of the first harm except for the harm then caused." Id. Section 930, which
addresses "Damages for Future Invasions," also does not preclude the view that a
plaintiff need not show continuing conduct to state a claim for continuing
trespass: If one causes continuing or recurrent tortious invasions on the land of
another by the maintenance of a structure or acts or operations not on the land of
the other and it appears that the invasions will continue indefinitely, the other
may at his election recover damages for the future invasions in the same action
as that for the past invasions. Restatement (Second) of Torts § 930(1) (1979).
Moreover, the comments to section 930 provide that "for continuing wrongs the
injured person can ordinarily bring successive actions for the invasions or series
of invasions as they occur." Id. cmt. a. Thus, under the Restatement, a claim for
continuing trespass is not defeated where the defendant's last affirmative act of
2
analysis of sales before and immediately after) and held that the use of a comparable
sales model was improper :
Since the parties filed their principal briefs in this appeal, the Texas Supreme
Court issued its opinion in Exxon Pipeline Co. v.. Zwahr, a case strikingly similar
to the present one. 88 S.W.3d 623 (Tex.2002). Just as we must do, the Zwahr court
determined whether the trial court had abused its discretion in admitting the
opinion testimony of Brad Kangieser. As here, Kangieser testified in Zwahr
regarding the fair market value of a pipeline easement taken by condemnation.
*4 In Zwahr, the supreme court restated the well-established legal standards
applicable to valuing a pipeline easement in a condemnation proceeding. In this
regard, the Zwahr court stated as follows:
Compensation for land taken by eminent domain is measured by the fairmarket value of the land at the time of the taking. The general rule for
determining fair-market value is the before-and-after rule, which requires
measuring the difference in the value of the land immediately before and
immediately after the taking. When, as here, only part of the land is taken for
an easement, a partial taking occurs.
Id. at 627-28 (internal citations omitted).
Applying these legal principles, the Zwahr court concluded that Kangieser's
testimony was irrelevant, and therefore inadmissible, to determining the value of
the land taken from the Zwahrs; thus, the trial court had abused its discretion in
admitting Kangieser's testimony. Id. at 631. The Zwahr court provided two
reasons for its holding: (1) Kangieser had impermissibly premised his valuation
of the easement on the fact of Exxon's taking, in violation of the projectenhancement rule and (2) Kangieser had failed to utilize the before-and-after method in
valuing the easement. Id. at 630-31.
. . .
Both Kangieser and Edmonds used the "sales comparison approach," otherwise
known as the "market approach," in valuing the condemned property. Using
such approach, Kangieser and Edmonds arrived at a fair-market value for the
condemned property by evaluating and comparing the sales of pipeline
easements similar to the WesTTex easement. . . .
Neither expert determined the value of the condemned property before or after
the taking. As such, Kangieser and Edmonds determined the value of the
easement to WesTTex, not the value of the loss to the Jenkses for the taking of the
easement. See id. at 631. Kangieser failed to apply the before-and-after valuation
method, which would have required him to evaluate the condemned property as
a proportionate part of the entire 735 acres. [FN8] For these reasons, and
wrongdoing precedes the filing of the complaint by a period longer than the
statute of limitations.
3
applying the standards enunciated in Zwahr, we conclude that Kangieser's and
Edmonds's opinion testimony was irrelevant to determining the value of the
property taken by WesTTex; therefore, the testimony was inadmissible under
Rule of Evidence 702. [FN9] See id. Accordingly, we hold that the trial court
abused its discretion in admitting the testimony.
[FN8] The Jenkses contend that the appropriate valuation method was the
comparable sales approach used by Kangieser and Edmonds. Contrary to the
Jenkses' contention, the Zwahr court explicitly stated that the before-and-after
valuation method is the appropriate method for valuing a pipeline easement in a
condemnation proceeding. 88 S.W.3d at 627.
Westtex 66 Pipeline Co. v. Baltzell, 2002 WL 21665312 at *4-7 (Tex. Ct. App. , July 17, 2003)
(emphasis supplied).
In Stevenson v. E.I. DuPont de Nemours, 327 F. 3d 400 (5th Cir. 2003) the Fifth
Circuit considered the proper method of appraisal in a case in which the plaintiffs sued
DuPont for airborne contamination to their land from particles from DuPont’s
pertrochemical plant. In ordering a new trial after a verdict for the land owners, the
court explained that the before and after method required an analysis of the market
value of the land immediately before and after the airborne contamination: “Texas law is
very clear that the proper measure of damages for permanent trespass is "the difference
in the market value of the land immediately before and immediately after the trespass."
Porras, 675 S.W.2d at 504.” Stevenson v. E.I. DuPont de Nemours, 327 F. 3d 400, 409 (5th
Cir. 2003). Mr. Sloan has precisely applied this model.
In Bonette v. Conoco, Inc., 837 So. 2d 1219 (La. 2003) the Louisiana Supreme Court
considered a case of airborne land contamination from asbestos. The court approved the
appraiser’s opinion based upon
a diminution of market value under the
unimpaired/impaired –before and after analysis methodology (used by Mr. Sloan in
this case):
In its final assignment of error, Conoco argues that the trial court erred in
awarding plaintiffs damages for diminution in property value. Conoco contends
that the expert testimony presented by plaintiffs and relied upon by the trial
court is based upon an unproven assumption "that the presence of some small
4
pieces of transite in a yard located in a neighborhood where other houses are
totally encased in the same material has the same 'blight' effect as a high
probability of flooding." Additionally, Conoco asserts that plaintiffs' expert did
not consider the valuable improvements Conoco made to plaintiffs' properties
during its abatement activities.
Plaintiffs called Mr. Leonard E. Pauley, Jr. as an expert in real estate appraisal.
Mr. Pauley appraised each plaintiff's property using a typical Fannie Mae report
to ascertain the market value of the property. Mr. Pauley performed the first
appraisal as if the properties were free of any "outside influence," and then
prepared a report to ascertain a "stigma adjustment." Mr. Pauley testified that
plaintiffs' property suffered a 10% diminution in value following the events in
question, assuming that all asbestos fibers were cleaned from the properties. Mr.
Pauley based his opinion on the impact that the floods of 1980 and 1982 had on
the Cherryhill Subdivision, which is located in the same general area as plaintiffs'
properties. Mr. Pauley stated that after the flood, the houses decreased in value,
and potential home buyers were reluctant to buy homes in that subdivision. He
concluded that the slow sales "implies that there was more resistance towards
purchasing in the subdivision after the flood, which leads me to believe that the
public opinion was adversely affected because of the flood even though this had
never happened before this time period and has not happened since." Mr. Pauley
opined that plaintiffs' property values would be lower even after the propertym
had been remediated due to the "stigma effect" the presence of asbestos would
have on the properties. He explained that when plaintiffs attempt to sell their
properties, they will have to disclose the fact that the property had once been
contaminated with asbestos-containing soil. He stated that in his opinion, the
buying public would demonstrate some resistance to buying the property once
the disclosure is made. He also stated that most prudent buyers would be more
likely to buy a house that has never been contaminated with a hazardous
substance than one that has been contaminated and remediated. He stated that
the word "asbestos" is frightening to people because most people are aware that
it is a carcinogen, and even if it is cleaned up, people are still concerned. Mr.
Pauley agreed that the improvements Conoco made to plaintiffs' properties
during remediation enhanced the outward appearance of the homes and could
make the homes more sellable." However, he testified that a home that is more
sellable is not necessarily more valuable. Mr. Pauley stated that improving the
looks of a home does not necessarily
change its value.
Conoco called Mr. Charles N. Cummings as an expert in real estate appraisal,
including the appraisal and evaluation of property that has been allegedly
environmentally impacted. Mr. Cummings concluded that none of plaintiffs'
properties suffered any diminution in value due to the contamination of the soil.
Mr. Cummings testified that the stigma effect diminishes rapidly after the
remediation process is complete. He then testified as to the post-remediation
value of plaintiffs' properties, taking into consideration a potential stigma effect
on each of the properties. Mr. Cummings stated that, in fact, Conoco's
remediation efforts, which included landscaping, added value to plaintiffs'
properties. Thus, Mr. Cummings concluded that plaintiffs' properties were not
5
adversely affected by the stigma of having had asbestos-containing materials on
their contaminated and remediated over one that has never been remediated. He
explained that property that has been remediated has been declared "safe," while
it is unknown whether that which has never been remediated is safe.
After considering the above testimony regarding the value of plaintiffs' property
values following the placement of contaminated soil on their lawns and
subsequent remediation, the trial court concluded that the properties suffered a
10% devaluation due to the stigma of having been contaminated with asbestos.
In reaching this conclusion, the trial court found that the only credible evidence
presented regarding this issue was the testimony of Mr. Pauley. The court
specifically found the testimony of Mr. Cummings was not credible, stating, It is
significant to note that this Court finds that the direct examination testimony of
Conoco's real estate expert was totally incredible. Mr. Charles Cummings
testified that it was his opinion that future purchases of the plaintiffs' properties
would be more likely to buy a home that had been contaminated with asbestos
and cleaned, than a home never contaminated with asbestos. In addition, it is
important to note Mr. Cummings was viewed by this Court by his demeanor,
overall presence as a direct examination witness, and his apparent lack of candor
under cross-examination.
This Court finds that the only credible testimony given by Mr. Cummings as to
causation, came while he was pressed under cross-examination to admit that all
of this findings were based upon removal of all asbestos materials from the
properties and that he had never been informed by Conoco that asbestos may
have remained in the plaintiffs' homes. The court of appeal concluded it was in
agreement with the trial court's findings as to the diminution of plaintiffs'
property values and affirmed the trial court's judgment in this respect.
The principle that questions of credibility are for the trier of fact to resolve
applies to the evaluation of expert testimony, unless the stated reasons of the
expert arepatently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853
(La.1990). Where two permissible views of the evidence exist, the factfinder's
choice between them cannot be manifestly erroneous or clearly wrong. Stobart,
617 So.2d at 883. In the instant case, the trial court was clearly presented with
two permissible views of the evidence, and it is apparent that the court found
one expert credible and one incredible. Therefore, we find the trial court's award
of property damages based on a 10% diminution in value due to the "stigma
effect" was neither manifestly erroneous norclearly wrong. Accordingly, the
judgment of the court of appeal affirming the trialcourt's award for property
damage is affirmed.
Bonette v. Conoco, Inc., 837 So. 2d 1219, 1238-1240 (La. 2003)
In Adams v. NVR Homes, Inc., 141 F. Supp. 554 (D. Md. 2001) property owners
sued a builder for diminution in property values from methane gas seepage into the
Plaintiffs’ homes. The court rejected a Daubert to the Plaintiffs’ real estate expert who
6
used the same methods employed by Mr. Sloan in this case:
Bernard Page, Jr. is an experienced and certified real estate appraiser who
performed appraisals of the value of plaintiffs' homes. As to each plaintiff family,
he expressed four general opinions, including (1) the current unimpaired value
of their home; (2) the current impaired value of their home; (3) the length of time
that the value of the home would be impaired; and (4) the potential relocation
costs of each family. Page's expert testimony will be presented during Phase II of
the trial. In their motion in limine, the Ryan Defendants seek to exclude only the
testimony of Page relating to his opinion as to the length of time that the value of
plaintiffs' homes will be impaired. In his report, Page concluded that the stigma
associated with plaintiffs' homes "could last ten or perhaps more than ten years."
This opinion is derived from Page's application of several factors, including his
experience, his examination of other residential properties in Maryland in which
perceived environmental problems have been reported to the public, and his
review of the expert reports of Dr. Kester, Dr. Libicki and Raymond DeStephen.
According to the Ryan Defendants, Page's subjective conjecture as to the period
of time into the future that the value of plaintiffs' homes will be impaired due to
the stigma of being located in Calvert Ridge does not satisfy the standards of
Daubert and Kumho. After considering the parties' arguments, this Court will not
limit the expert opinion to be rendered by Page at the trial in the manner
suggested by the Ryan Defendants. The Court is satisfied that the opinion in
question is grounded upon " 'a reliable basis in the knowledge and experience in
the discipline.' " Kumho, 526 U.S. at 149, 119 S.Ct. 1167 (quoting Daubert, 509 U.S.
at 592, 113 S.Ct. 2786). Although Daubert commands that in court science must do
the speaking and not merely the scientist, see Cavallo, 892 F.Supp.at 761, the
discipline of real estate appraisal is not essentially scientific. Some aspects of
Page's expert testimony are therefore inherently subjective and less susceptible to
objective and independent validation. On the record here, this Court is satisfied
that there is a reliable and reasonable nexus between Page's expert testimony
and the underlying data.Some of Page's data may be questioned because it is
derived from the expert reports of Dr. Kester and Dr. Libicki which suggest that
plaintiffs are presently at risk because of the existence of methane in the soil.
Defendants also contend that Page has little or no first-hand experience in
evaluating stigma arising as a result of negative publicity due to environmental
contamination. However, considerations of this sort go to the weight and not to
the admissibility of Page's testimony. Page's opinions are based on other
reliable information such as facts pertaining to other properties which have
suffered a long-term diminution in value as a result of the stigma associated with
environmental contamination. Even though evidence may not exist as to any
present danger to plaintiffs posed by the possible existence of methane gas in the
vicinity of their homes, negative publicity about Calvert Ridge is a reliable factor
which might lead to a decrease in the value of plaintiffs' homes. Accordingly, the
Court has concluded that Page's ten-year projection for the time needed for
plaintiffs' homes to return to their full market value is admissible testimony. For
these reasons, the Ryan Defendants' motion in limine will be denied as to the
expert opinions of Bernard Page.
7
Adams v. NVR Homes, Inc., 141 F. Supp. 554, 567 (D. Md. 2001)
Mr. Sloan’s use of the “highest and best use” methodology is likewise in
accordance with reliable and acceptable methods of real estate appraisal. See e.g., United
Technologies Corp. v. Town of East Windsor, 807 A. 2d 955, 965 (Conn. 2002) (extensive
discussion of highest and best use method ; THE DICTIONARY OF REAL ESTATE APPRAISAL
(3d Ed.1993) p. 171, defines "highest and best use" as "the reasonably probable and legal
use of vacant land or an improved property, which is physically possible, appropriately
supported, financially feasible, and that results in the highest value.").
Respectfully submitted,
DAVID RANDOLPH SMITH & ASSOCIATES
By: _______________________________
David Randolph Smith
#011905
Edmund J. Schmidt III
#021313
1910 Acklen Avenue
Hillsboro Village
Nashville, Tennessee 37212
(615) 742-1775
web: http://www.drslawfirm.com
e-mail: [email protected]
Ronald Simon
1797 North Street, NW
Washington, D.C. 20036
#945238
James W. Owens
#53290
730 Clark Street
P.O. Box 2757
Paducah, KY 42002-2757
8
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been served upon the
following on this _____ day of December , 2003 by hand deliveryl:
Robert E. Tait, Esq.
Gail Ford, Esq.
Alan Harrington, Esq.
VORYS, SATER, SEYMOUR AND PEASE LLP
52 E. Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
G. Wilson Horde, Esq.
KRAMER, RAYSON, LEAKE, RODGERS & MORGAN
P.O. Box 629
Knoxville, TN 37901
Joseph DiStefano, Esq.
6001 Tracy’s Landing Road
Tracy’s Landing, MD 20779
___________________________________
Edmund J. Schmidt, III
9
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 1
Supreme Court of Louisiana.
Jimmy and Brenda BONNETTE, et al.
v.
CONOCO, INC., et al.
No. 2001-C-2767.
Jan. 28, 2003.
Property owners brought action against refinery owner for damages arising from exposure
to asbestos contained in dirt the property owners purchased from contractor used by
refinery owner to remove and replace soil from site of demolished houses near refinery.
After a bench trial, the Fourteenth Judicial District Court, Parish of Calcasieu, No.
95-4112, Gregory D. Lyons, J., entered judgment awarding property owners compensatory
personal injury damages, property damages, damages for fear of cancer, damages for
increased risk of a future injury, and punitive damages. Refinery owner appealed. The
Court of Appeal, 801 So.2d 501, affirmed. Certiorari was granted. The Supreme Court,
Kimball, J., held that: (1) compensatory damages for increased risk of contracting cancer
in the future were not warranted; (2) property owners could not recover for mental
anguish; (3) refinery's conduct was not wanton and reckless, and thus, statutory punitive
damages were not warranted; but (4) evidence established 10 percent diminution in value.
Court of Appeal affirmed in part, reversed in part.
Johnson, J., concurred in part, dissented in part, and assigned reasons.
West Headnotes
[1] Certiorari
42(3)
73k42(3) Most Cited Cases
Refinery, by merely relegating to a footnote in its application for writ of certiorari the
issue of whether expert scientific testimony should have been excluded under Daubert,
rather than including the argument with its other arguments in the application, failed to
properly place the issue before the Supreme Court, and thus, the Supreme Court would not
consider the issue. Sup.Ct.Rules, Rule 10, §§ 1(a, b), 3, subd. 3, 8 LSA-R.S.
[2] Appeal and Error
1008.1(5)
30k1008.1(5) Most Cited Cases
1008.1(7)
The court of appeal should not set aside the factual findings of a trial court absent
manifest error or unless clearly wrong.
893(3)
If a court of appeal finds that the trial court committed a reversible error of law or
manifest error of fact, the court of appeal must ascertain the facts de novo from the
record and render a judgment on the merits.
987(4)
Copr. © West 2003 No Claim to Orig. U.S. Govt. Works
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 2
Although appellate courts should accord deference to the factfinder, they nonetheless have
a constitutional duty to review facts.
1008.1(5)
1010.2
30k1010.2 Most Cited Cases
Because appellate courts must perform the constitutional function of reviewing facts, they
have every right to determine whether the trial court verdict was clearly wrong based on
the evidence or clearly without evidentiary support.
1008.1(5)
1008.1(7)
The appellate court, to perform the constitutional function of reviewing facts, must do
more than simply review the record for some evidence which supports or controverts the
trial court's findings; it must instead review the record in its entirety to determine
whether the trial court's finding was clearly wrong or manifestly erroneous.
996
30k996 Most Cited Cases
The issue to be resolved by a reviewing court is not whether the trier of fact was right
or wrong, but whether the factfinder's conclusion was reasonable.
[8] Damages
24
Compensatory damages cannot be recovered for a slight exposure to asbestos which places
plaintiffs at a slightly increased risk of contracting cancer in the future, in the
absence of evidence that any plaintiff currently has cancer or any other asbestos-related
condition.
[9] Damages
24
Homeowners' exposure to asbestos fibers in dirt hauled from refinery and spread on their
lawns was only slight, and their risk of contracting cancer in the future was only
slightly increased by such exposure, so that, in absence of evidence that any homeowner
currently had cancer or any other asbestos-related condition, homeowners could not recover
compensatory damages for increased risk of developing a future disease; soil, air, and
dust samples showed presence of only small amount of asbestos, though it was possible that
activities performed by homeowners could have resulted in release of asbestos fibers, that
released fibers would be respirable, and that homeowners could have inhaled respirable
asbestos fibers.
[10] Damages
50
In order for plaintiffs to recover emotional distress damages in the absence of a manifest
physical injury, they must prove their claim is not spurious by showing a particular
likelihood of genuine and serious mental distress arising from special circumstances.
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 3
[11] Damages
49.10
Homeowners did not establish that their exposure to asbestos fibers in dirt hauled from
refinery and spread on their lawns created a likelihood of genuine and serious mental
distress arising from special circumstances, and thus, homeowners, in absence of manifest
physical injury, could not recover damages for past, present, and future mental anguish;
homeowners merely had generalized fear of contracting an asbestos-related disease, they
had sought no medical treatment except for chest X-rays arranged by their counsel in the
weeks before trial, and they had failed to have asbestos originating from sources other
than refinery's dirt removed from window caulking, floor tiles, and drinking water.
[12] Damages
87(1)
The statute providing for exemplary damages for wanton and reckless disregard for public
safety in storage, handling, or transportation of hazardous or toxic substances must be
strictly construed, as it imposes a penalty. LSA-C.C. art. 2315.3 (Repealed).
[13] Damages
91(1)
To obtain award of exemplary or punitive damages for wanton and reckless disregard for
public safety in storage, handling, or transportation of hazardous or toxic substances,
plaintiff must prove: (1) defendant's conduct was wanton and reckless, by proving
defendant proceeded in disregard of high and excessive degree of danger, either known to
him or apparent to reasonable person in his position, or defendant engaged in highly
unreasonable conduct, involving extreme departure from ordinary care, in situation where
high degree of danger is apparent; (2) danger created by defendant's wanton or reckless
conduct threatened or endangered public safety; (3) defendant's wanton or reckless
conduct occurred in storage, handling, or transportation of hazardous or toxic substances;
and (4) plaintiff's injury was caused by defendant's wanton or reckless conduct. LSA-C.C.
art. 2315.3 (Repealed).
[14] Damages
91(1)
Refinery's conduct, relating to dirt purchased by homeowners, hauled from refinery, and
spread on homeowners' lawns, was not wanton and reckless, and thus, homeowners were not
entitled to statutory exemplary or punitive damages for wanton and reckless disregard for
public safety in storage, handling, or transportation of hazardous or toxic substances;
refinery performed Level I site assessment before excavation, which revealed existence, on
exterior of two abandoned houses on site, of product containing crystalline silica, but
Level II assessment involving soil sample collection was not required by law, and although
refinery never told haulers asbestos had been found on site, refinery did not violate
Department of Environmental Quality (DEQ) asbestos regulations and once DEQ notified
refinery that asbestos had been found in homeowners' soil, refinery's response exceeded
what DEQ would have required refinery to do. LSA-C.C. art. 2315.3 (Repealed).
[15] Damages
188(2)
[15] Evidence
571(7)
Trial court's finding that "stigma effect," of asbestos having been present in dirt which
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 4
homeowners purchased from refinery and spread on their lawns, led to 10 percent diminution
in value of their properties was not manifestly erroneous nor clearly wrong; real estate
appraisal expert testified that other homes in same general area sold more slowly after
flooding and that even if all asbestos fibers were removed from homeowners' properties,
there would be 10 percent diminution in value because homeowners would have to disclose
their properties had once been contaminated and the word "asbestos" frightened potential
purchasers.
[16] Evidence
570
The principle that questions of credibility are for the trier of fact to resolve applies
to the evaluation of expert testimony, unless the stated reasons of the expert are
patently unsound.
1011.1(7)
Where two permissible views of the evidence exist, the factfinder's choice between them
cannot be manifestly erroneous or clearly wrong.
West Codenotes
Prior Version's Limitation Recognized
LSA-C.C. art. 2315
*1221 Kenneth R. Spears, SWIFT, SPEARS & HARPER, Lake Charles; Mark R. Zehler, Robert E.
Arceneaux, Joseph E. LeBlanc, Jr., Eric E. Jarrell, Timothy S. Madden, Elizabeth S.
Wheeler, New Orleans, Counsel for Applicant.
William B. Baggett, Roger G. Burgess, BAGGETT, MCCALL, BURGESS & WATSON, Lake Charles,
Counsel for Respondent.
Keith Borman, Leah Lorber, Luis A. Perez-Hernandez, Sherman Joyce, Counsel for American
Tort Reform Association (Amicus Curiae).
Keith Borman, Mark A. Behrens, Quentin Riegel, Victor E. Schwartz, Luis A.
Perez-Hernandez, Counsel for National Association of Manufacturers (Amicus Curiae).
Keith Borman, Leah Lorber, Luis A. Perez-Hernandez, Mark A. Behrens, Counsel for Chamber
of Commerce of the United States (Amicus Curiae).
Keith Borman, Leah Lorber, Mark A. Behrens, Luis A. Perez- Hernandez, Victor *1222 E.
Schwartz, Counsel for American Petroleum Institute (Amicus Curiae).
Keith Borman, Luis A. Perez-Hernandez, Jr., Victor E. Schwartz, Leah Lorber, Mark A.
Behrens, Counsel for Louisiana Association of Business & Industry (Amicus Curiae).
Keith Borman, Luis A. Perez-Hernandez, Counsel for Louisiana Midcontinental Oil & Gas
Association (Amicus Curiae).
M. Dwayne Johnson, Charles S. McCowan, Jr., Shannan Sweeney Rieger, Baton Rouge, James R.
Young, Uma M. Subramanian, Counsel for Louisiana Chemical Association, Louisiana Chemical
Industry Alliance, American Chemistry Council, American Petroleum Institute (Amicus
Curiae).
M. Dwayne Johnson, Baton Rouge, Luis A. Perez-Hernandez, Shannan S. Rieger, Baton Rouge,
837 So.2d 1219
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Page 5
Uma M. Subramanian, James R. Young, Charles S. McCowan, Jr., Baton Rouge, Louisiana
Mid-Continent Oil & Gas Association (Amicus Curiae).
Carmack M. Blackmon, Baton Rouge, Counsel for Louisiana Railroads Association (Amicus
Curiae).
Martha Y. Curtis, James M. Garner, Keith A. Kornman, New Orleans, Counsel for Murphy Oil
USA Inc. (Amicus Curiae).
Stephen A. Bokat, Counsel for National Chamber Litigation Center Inc.
(Amicus Curiae).
Luis A. Perez-Hernandez, Counsel for Coalition for Asbestos Justice Inc., and Louisiana
Chapter of the National Federation (Amicus Curiae).
**1 KIMBALL, Justice. [FN*]
FN* Retired Justice Walter F. Marcus, Jr., assigned as Justice ad hoc, sitting for
Associate Justice Jeanette T. Knoll, recused.
This case arises out of the delivery of soil, which was discovered to contain solid
pieces of transite, [FN1] to numerous residents of Westlake, Louisiana. One hundred
forty-three plaintiffs filed suit, alleging that they were exposed to asbestos derived
from pieces of transite from abandoned houses near the Conoco refinery in Westlake. After
a bench trial on the merits, the trial court concluded plaintiffs were entitled to several
items of damage, including damages for increased risk of contracting an asbestos-related
disease, damages for mental anguish, punitive damages and property damages. The court of
appeal affirmed the judgment of the trial court. After reviewing the record in its
entirety, we reverse those portions of the judgment of the **2 court of appeal that affirm
the trial court's awards for increased risk of contracting an asbestos-related disease,
emotional distress, and punitive damages. We affirm that portion of the judgment of the
court of appeal that affirms the trial court's award of property damages.
FN1. Transite is a product that contains crystalline silica, which is considered a
hazard when inhaled and can be carcinogenic to humans.
Facts and Procedural History
The record reveals that in the spring of 1994, Conoco, Inc. ("Conoco") initiated the
pre-construction phase of a Lube Oil Hydrocracker Project ("LOHC"). Completion of the
project required the demolition of abandoned houses on property owned by Conoco, as well
as the excavation and removal of approximately 400,000 cubic yards of soil. Consequently,
Conoco contracted with Daigle Brothers, Inc. ("Daigle") and two other individual dump
truck drivers to excavate and remove the soil from the project site.
Plaintiffs purchased some of the soil from Daigle and spread it on the lawns of their
homes. Several months later, a Westlake resident discovered solid pieces *1223 of
material containing asbestos in the soil originating from the project site.
Upon receiving inquiries about whether the soil from its project site contained asbestos,
Conoco set up a hotline designed for concerned citizens. The hotline provided a vehicle
for testing soil suspected of containing asbestos. According to the testimony of Ms.
Angela Queenan, the project manager for the "clean-up," Conoco also offered to remediate
any lawns believed to contain soil from the LOHC site. Conoco sent certified asbestos
inspectors to the homes of individuals who suspected that they had received soil from the
site to inspect the properties for the presence of transite. If no transite or other
837 So.2d 1219
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Page 6
asbestos-containing materials were found during a visual inspection, Conoco offered to
send a crew to the residences to sample the soil. In cases where the test results were
negative, no further steps were taken. In **3 situations where transite was found, Conoco
offered to either remove the soil and replace it with new soil or leave the soil in place
and "cap" it by placing six additional inches of topsoil over the original soil. All of
the plaintiffs represented herein elected to have their soil removed and replaced. The
remediation for the properties of these four families has been completed, and there are no
issues regarding the quality of the remediation in this case.
On July 31, 1995, plaintiffs filed a petition for class action against Conoco and Daigle,
alleging that the soil they purchased contained "harmful and dangerous materials,
including asbestos and/or lead." [FN2] Plaintiffs claimed defendants were negligent in
that they knew or should have known: (1) that the soil was contaminated before allowing
it to be transported; and (2) that the soil from the project site should not have been
deposited in residential areas or any other areas outside the Conoco premises. Plaintiffs
further contended that defendant should have tested the soil prior to allowing it to be
transported from the Conoco premises. Additionally, plaintiffs alleged that defendants
were strictly liable for depositing the hazardous soil throughout Westlake and Calcasieu
Parish because defendants were the owners and/or custodians of the soil and the hazardous
properties of the soil, along with the failure of notice, caused the soil to be
unreasonably dangerous. Plaintiffs sought **4 punitive damages for defendants' reckless
and wanton disregard for public safety in the storage, handling, and transportation of
hazardous substances. In addition to punitive damages, plaintiffs also sought
compensatory damages for, inter alia, damage to their property and landscape, exposure to
the contaminated soil, and "emotional fears worrying about the presence of the dirt on
their property and the contaminants therein."
FN2. Plaintiffs' petition proposed the following class:
All persons in Calcasieu Parish who purchased from Daigle that came from Conoco
which contained hazardous constituents such as asbestos and lead and who were not
warned or apprised of the hazardous nature of the dirt; all persons in Calcasieu
Parish who lived on or visited sites where the aforedescribed dirt was placed; and
all persons in Calcasieu Parish who were exposed to and/or whose property was
damaged by the aforedescribed dirt.
Defendants, their employees and agents, and any entity in which defendants had a
controlling interest or franchise relationship were specifically excluded from the
proposed class.
The claims of four families were
*1224 bench trial was held on the
ensued. Following the trial, the
court made the following specific
the subject of the instant trial. [FN3] A six-week
merits, during which a virtual "battle of the experts"
trial court ruled in favor of plaintiffs. The trial
findings:
FN3. The individual adult plaintiffs are Heather Lambert, David Lambert, Christine
Goodness, David Goodness, Lasalle Williams, Betty Williams, Glenda Williams, Kathy
Shephard, and George Shephard. The Shephards also brought claims on behalf of their
three minor children, Donovan Shephard, Kendrick Shephard, and George Shephard, Jr.
1. Conoco knew or should have known that the soil being excavated from the project site
was being delivered to local residents.
2. The soil that was delivered to plaintiffs from the Conoco site was contaminated with
asbestos-containing material and free asbestos fibers.
3. Asbestos can be cancer causing and extremely dangerous to the health of those who are
exposed to it.
4. Conoco had a duty to determine whether or not its soil contained asbestos.
5. Conoco had a duty to ensure that the soil was disposed of in a proper fashion.
837 So.2d 1219
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Page 7
6. Effective means of testing could have determined the **5 contents of the soil prior
to its excavation and transportation to plaintiffs' property.
7. Conoco had a duty to determine whether or not the soil being excavated and
transported contained asbestos or other hazardous materials.
8. Conoco knew or should have known that soil leaving its properties would ultimately
contain asbestos particles and fibers.
9. Conoco breached its duty to plaintiffs by failing to take reasonable and prudent
steps to determine whether or not the soil contained asbestos prior to excavating and
transporting it.
10. Conoco breached its duty to plaintiffs by failing to test the soil before
transporting it to plaintiffs.
11. Conoco breached its duty to inform Daigle and the other haulers that the soil
potentially contained asbestos particles or asbestos fibers.
12. The contamination of plaintiffs' yards and the insides of their homes led to a
significant devaluation of their properties.
13. Plaintiffs' homes are still contaminated with asbestos fibers and
asbestos-containing materials which originated from the contaminated soil distributed by
Conoco.
14. Plaintiffs were exposed to some asbestos fiber count which exceeded that of normal
ambient air for the entire period of time that the asbestos contaminated soil remained
on their properties.
15. Plaintiffs' everyday use of their lawns and driveways caused asbestos fibers to be
released into the air.
16. Plaintiffs were exposed to asbestos during the normal activities on their properties
and brought asbestos fibers and particles into their homes.
17. Plaintiffs' additional exposure to asbestos fibers was "slight."
18. But for the failure of Conoco to prevent the release of the asbestos- containing
soil, plaintiffs would not have experienced this increased exposure to harmful
respirable asbestos fibers over and above those found in ambient air.
**6 19. It is more probable than not that plaintiffs have suffered a "slight" increased
risk of developing an asbestos-related disease due to their exposure to an increased
asbestos fiber count.
20. Plaintiffs have a reasonable fear that they are more likely to develop cancer than
had they not been exposed to the asbestos fibers in question.
21. Plaintiffs are entitled to punitive damages because Conoco was reckless in some
degree.
The trial court uniformly fixed the general damages for past, present, and future mental
anguish for the adult plaintiffs, except George Shephard, at $12,500.00. *1225
Thereafter, the court awarded each adult plaintiff $10,000.00 for "physical injury and an
increased risk of developing asbestos related cancer." Damages awarded to the three minor
children were fixed at $20,000.00 for past, present, and future mental anguish, and
$20,000.00 for "physical injury and an increased risk of developing asbestos related
cancer." The court found that plaintiffs' properties suffered a 10% diminution in value as
a result of receiving contaminated soil. The court specifically declined to award any sum
for abatement of the asbestos contained in plaintiffs' homes. Each plaintiff was also
awarded $7,500.00 in punitive damages. Additionally, individual damages for the adult
plaintiffs were awarded as follows:
Heather Lambert:
Past Medical Expenses--$1,500.00;
Future Medical Expenses (psychotherapy)--$4,000.00;
Property Damage--$1,300.00
David Lambert:
Past Medical Expenses--$900.00;
Property damage--$1,300.00
Christine Goodness:
837 So.2d 1219
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Page 8
**7 David Goodness:
Lasalle Williams:
Betty Williams:
Glenda Williams:
Past Medical Expenses--$900.00
Kathy Shephard:
Property Damage--$700.00
George Shephard:
Property Damage--$700.00
Conoco appealed the trial court's judgment, and the court of appeal affirmed the
judgment. Bonnette v. Conoco, Inc., 01-0297 (La.App. 3 Cir. 9/12/01), 801 So.2d 501. The
court of appeal held that punitive damages were warranted pursuant to La. C.C. art. 2315.3
due to Conoco's unreasonable and reckless behavior in removing and transporting the
asbestos-contaminated soil from the project site. The court of appeal also held that the
trial court did not abuse its discretion by awarding each plaintiff $7,500.00 for punitive
damages. Additionally, the court of appeal affirmed the trial court's ruling that
plaintiffs' exposure to asbestos, along with the psychological trauma resulting from the
exposure, warranted recovery for fear of contracting cancer. Next, the court of appeal
found no error in the trial court's award of compensatory damages for increased risk of
developing an asbestos-related disease. Finally, the appellate court held that the
property owners were entitled to **8 damages for decreased value of their homes.
We granted Conoco's application for certiorari to address the correctness of the judgment
of the court of appeal. Bonnette v. Conoco, Inc., 01-2767 (La.1/11/02), 804 So.2d 649.
Discussion
Motion to Strike Daubert Issue
[1] After the briefs were filed in the matter, but prior to oral argument, plaintiffs
filed a Motion to Strike Conoco's argument that the testimonies of two of plaintiffs'
expert witnesses should be excluded, pursuant to Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d
1116 (La.1993). *1226 Plaintiffs urge that Conoco did not include that particular argument
in its application for a writ of certiorari, raising the issue for the first time in this
court in its brief for oral argument. To support their contention, plaintiffs cite this
court's recent decision in Boudreaux v. State, Dept. of Transp. & Dev., 01-1329
(La.2/26/02), 815 So.2d 7.
Conoco opposed the motion, arguing that this case is distinguishable from Boudreaux
because, unlike the defendant in that case, it raised and preserved the Daubert objection
in the lower courts. Conoco also contends that it did not abandon the Daubert issue
because it "expressly reserved" the issue in a footnote in its writ application.
837 So.2d 1219
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Page 9
In Boudreaux, the defendant filed an application for a writ of certiorari in this court,
advancing three writ grant considerations. After this court granted certiorari, the
defendant made numerous other arguments before the court and only argued one of the
considerations previously urged. This court held that the issues advanced in the writ
application, but not briefed for oral argument, were abandoned. This court **9 also found
that the additional questions briefed for oral argument, but not contained in the original
writ application, were not properly before the court, stating:
It is axiomatic that our rules are fashioned to assist us in the exercise of our
discretionary jurisdiction. It is for that reason that we promulgated rules that
mandate assignments of error in the application for writs and a memorandum which
addresses with particularity the reasons why we should exercise our discretionary
jurisdiction. This procedure allows for the best use of our judicial function in
developing Louisiana jurisprudence. Correlatively, if this Court is to sharpen the focus
on those issues most worthy of consideration and hasten the decisional process, it is
imperative that we not be blind sided after we grant a writ application with questions
which did not appear in the application for a writ of certiorari. [FN4]
FN4. As we noted in Boudreaux, this policy is recognized in the rules of the United
States Supreme Court. U.S. Sup.Ct. R. 24.1(a) provides, in pertinent part:
The questions [presented for review under Rule 14.1] shall be set out on the first
page ... The phrasing of the questions presented need not be identical with that in
the petition for a writ of certiorari or the jurisdictional statement, but the brief
may not raise additional questions or change the substance of the questions already
presented in those documents. At its option, however, the Court may consider a
plain error not among the questions presented but evident from the record and
otherwise within its jurisdiction to decide.
Commenting on this rule in Kaisha v. U.S. Philips Corp., 510 U.S. 27, 114 S.Ct. 425,
126 L.Ed.2d 396 (1993), the Court stated:
Even before the first version of Rule 14.1(a) was adopted, we indicated our
unwillingness to decide issues not presented in petitions for certiorari. As we
stated in General Talking Pictures Corp. v. Western Elec. Co., 304 U.S. 175, 179[,
58 S.Ct. 849, 82 L.Ed. 1273] (1938): "One having obtained a writ of certiorari to
review specified questions is not entitled here to obtain decision on any other
issue." And as Justice Jackson stated ... in Irvine v. California, 347 U.S. 128,
129-130[, 74 S.Ct. 381, 98 L.Ed. 561] (1954): "We disapprove the practice of
smuggling additional questions into a case after we grant certiorari. The issues
here are fixed by the petition unless we limit the grant, as frequently we do to
avoid settled, frivolous or state law questions."
Kaisha, 510 U.S. at 32, n. 6, 114 S.Ct. 425, n. 6.
**10 Id. at p. 4-5, 815 So.2d at 10-11 (footnotes omitted).
La. Sup.Ct. R. X, § 1(b), provides, in pertinent part:
The application for writs shall address, in concise fashion, why the case is appropriate
for review under the considerations stated in subsection (a) above....
*1227 Additionally, La. Sup.Ct. R. X, § 3(3) provides that a writ applicant in civil
cases must submit a memorandum containing assignments of error and an "argument of each
assignment of error on the facts and law, addressing particularly why the case is
appropriate for review under the considerations stated in Section 1(a) of this rule." The
procedures contained within these rules provide a standard to aid this court in the
exercise of its discretionary authority. Boudreaux, 01-1329 at p. 3, 815 So.2d at 10.
In this case, Conoco did not particularly address the Daubert issue in its application
for a writ of certiorari. Rather than include this argument along with its other
arguments, Conoco relegated the matter to a footnote, "reserving the right" to challenge
837 So.2d 1219
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Page 10
certain testimony on Daubert grounds should this court grant its writ. We find such a
"reservation of rights" is insufficient to properly place this issue before this court as
the Daubert issue was neither presented in the application for certiorari nor fairly
included in the questions that were presented. For the reasons we stated in Boudreaux, we
find that the Daubert issue is not properly before this court. Therefore, the argument
contained in Conoco's fifth assignment of error in its brief for oral argument will not be
considered by this court.
Standard of Review
[2][3][4][5][6][7] The court of appeal should not set aside the factual findings of a
trial court absent manifest error or unless clearly wrong. **11Arceneaux v. Domingue, 365
So.2d 1330 (La.1978). However, if a court of appeal finds that the trial court committed
a reversible error of law or manifest error of fact, the court of appeal must ascertain
the facts de novo from the record and render a judgment on the merits. LeBlanc v.
Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord
deference to the factfinder, they nonetheless have a constitutional duty to review facts.
Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d
216, 221. Because appellate courts must perform this constitutional function, they have
every right to determine whether the trial court verdict was clearly wrong based on the
evidence or clearly without evidentiary support. Id. at p. 8-9, 639 So.2d at 221. The
reviewing court must do more than simply review the record for some evidence which
supports or controverts the trial court's findings; it must instead review the record in
its entirety to determine whether the trial court's finding was clearly wrong or
manifestly erroneous. Stobart v. State of Louisiana, through Dep't of Transp. & Dev., 617
So.2d 880, 882. The issue to be resolved by a reviewing court is not whether the trier of
fact was right or wrong, but whether the factfinder's conclusion was reasonable. Id. We
have previously emphasized the principle that "if the trial court or jury's findings are
reasonable in light of the record reviewed in its entirety, the court of appeal may not
reverse, even if convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently." Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973
(La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990))).
Damages for Physical Injury and Increased Risk Developing Asbestos-Related Cancer
In its first assignment of error, Conoco argues that the lower courts erred in awarding
damages for increased risk of future injury, as plaintiffs have not yet **12 experienced a
compensable injury. [FN5] Conoco*1228 contends plaintiffs were not exposed to significant
quantities of asbestos and have no increased risk of injury, or, at best, only an
unquantified theoretical increased risk of injury.
FN5. The trial court's judgment awards plaintiffs a sum of damages for "physical
injury and an increased risk of developing asbestos related cancer." Interpreting
this award, plaintiffs contend that "[t]he trial court did not award damages for an
increased risk of future injury, but for an actual insult that occurred when they
inhaled Conoco's asbestos fibers." We find, however, that the trial court's award
was not for an actual physical injury as the term is customarily used, but was
instead for an increased risk of developing asbestos-related cancer that the trial
court believed plaintiffs face. This interpretation is supported by a reading of
the trial court's reasons for judgment as a whole. First, the trial court
summarized one of the "elements" of damage plaintiffs demanded for Conoco's breach
of a duty owed to them as "Physical Injury in the form of an increased risk of
developing asbestos related cancer and other asbestos related illness." The court
went on to state, "This Court finds that the plaintiffs have suffered an injury
because they have been exposed to an asbestos fiber count which places each of them
at an increased risk of developing an asbestos related cancer.... Though the injury
837 So.2d 1219
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Page 11
to the plaintiffs is slight, it is an injury in fact. The Court finds that Conoco's
breach resulted in actual injury to each plaintiff." Finally, in making the award
Conoco complains of in its first assignment of error, the trial court stated,
"[T]his court finds that children are likely to be more susceptible to the
development of an asbestos related cancer, when exposed at a young age. Therefore,
the Court, while awarding each adult plaintiff $10,000.00 for their physical injury,
each child is hereby awarded $20,000.00 for their increased risk." Thus, in light
of all of the above, it appears the trial court equated the award for "physical
injury" with the award for "increased risk of developing asbestos related cancer."
We will therefore treat the award as one commonly understood as an award for
increased risk of developing a future disease.
In Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir.1986), Ernest Adams sued
certain manufacturers and/or marketers of asbestos-containing products, seeking, inter
alia, to recover compensatory damages for increased risk of developing cancer and for fear
of contracting cancer. The trial court excluded all evidence of any alleged increased
risk of cancer and mental anguish resulting from that increased risk, stating:
Plaintiff Adams does not now have cancer and by whatever definition plaintiff wishes to
use, any reference that he may or might have cancer in the future is only a possibility.
There can be no causal link with an injury when that injury hasn't yet occurred....
**13 Adams, 783 F.2d at 591. On original hearing, the United States Court of Appeal,
Fifth Circuit, affirmed the jury verdict in favor of defendants. Adams v. Johns-Manville
Sales Corp., 727 F.2d 533 (5th Cir.1984). On rehearing, the Fifth Circuit submitted to
this court the following questions:
1. Whether Louisiana law permits a plaintiff in a products liability action to recover
damages for an increased risk of contracting cancer in the future in the absence of any
evidence that the plaintiff currently has cancer or, within reasonable medical
probability, will contract cancer in the future.
2. Whether Louisiana law permits a plaintiff in a products liability action to recover
damages for mental anguish arising from his fear of contracting cancer in the future
based on evidence that the plaintiff is at an increased risk of contracting cancer but
in the absence of any evidence that the plaintiff currently has cancer or, within
reasonable medical probability, will contract cancer in the future.
Adams v. Johns-Manville Sales Corp., 756 F.2d 1068, 1069 (5th Cir.1985).
This court declined certification without comment. Adams v. Johns-Manville Sales Corp.,
467 So.2d 529 (La.1985). Thereafter, the federal appellate court, in *1229 considering a
petition for rehearing filed by Adams, stated that Adams' proffered evidence of increased
risk of developing cancer from exposure to asbestos products was inadmissible. Adams, 783
F.2d 589 (5th Cir.1986). The court noted that Adams proffered evidence failed to establish
that his exposure to defendants' products "probably" caused an increased risk of cancer.
The court stated:
Adams' proffer consisted of admittedly "sketchy" testimony to be given by a Dr. Joseph
Wagoner. It stated Dr. Wagoner would rely on an article published in the British
Journal of Industrial Medicine. The article studied asbestos workers certified as
having asbestosis and followed the progression of their disease and the cause of death.
The article then deduced that increases in risk of cancer for such workers correlated
with percentages of disablement suffered by such workers. The proffer, however, failed
to indicate that Adams could prove he suffered any percentage of disablement from
inhalation of asbestos **14 fibers which would establish the probable risk of cancer Dr.
Wagoner would fix for Adams. The second part of Adams' proffer was a statement that Dr.
Comstock would testify "concerning the increased risk of cancer of an insulator with Mr.
Adams' record of exposure to asbestos and Mr. Adams' record of smoking cigarettes."
Again the proffer was left in general terms never made specifically applicable to Adams
in terms of medical probability.
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Page 12
Adams, 783 F.2d at 592.
Several years after the federal court's decision in Adams, this court was presented with
the question of "whether asymptomatic plaintiffs, who have had significant occupational
exposure to asbestos and must now bear the expense of periodic medical examinations to
monitor the effects of that exposure have suffered 'damage' under Louisiana Civil Code
article 2315." Bourgeois v. A.P. Green Industries, Inc., 97-3188 (La.7/8/98), 716 So.2d
355, 357 ("Bourgeois I "). In Bourgeois I, the plaintiffs, past and present employees of
Avondale Shipyards, filed suit alleging that they were exposed to asbestos-containing
products. At the time of the suit, none of the plaintiffs had been diagnosed with any
asbestos-related injury or disease. The principle relief sought by the plaintiffs was the
establishment of a judicially administered fund to cover the costs of regular medical
examinations to facilitate the early detection and treatment of possible latent diseases.
This court stated:
Unlike a car crash, asbestos exposure is an accident almost always without impact.
Nevertheless, it is still an accident that can have consequences every bit as real as
those sustained in a head-on collision. In fact, it is precisely because asbestos can
have such deadly consequences that plaintiffs, regardless of whether or not they are
currently suffering from a disease, are often encouraged to submit to regular diagnostic
testing.
Id. at 358-59. This court went on to conclude that the reasonable cost of medical
monitoring is a compensable item of "damage" in the form of the costs required to **15 pay
for this care, provided that a plaintiff satisfies the following criteria:
(1) Significant exposure to a proven hazardous substance;
(2) As a proximate result of this exposure, plaintiff suffers a significantly increased
risk of contracting a serious latent disease;
(3) Plaintiff's risk of contracting a serious latent disease is greater than (a) the
risk of contracting the same disease had he or she not been exposed and (b) the chances
of members of the public at large of developing the disease;
*1230 (4) A monitoring procedure exists that makes the early detection of the disease
possible;
(5) The monitoring procedure has been prescribed by a qualified physician and is
reasonably necessary according to contemporary scientific principles;
(6) The prescribed monitoring regime is different from that normally recommended in the
absence of exposure;
(7) There is some demonstrated clinical value in the early detection and diagnosis of
the disease.
Id. at 360-61. [FN6]
FN6. Effective July 9, 1999, Acts 1999, No. 989 amended La. C.C. art. 2315 to
provide that "[d]amages do not include costs for future medical treatment, services,
surveillance, or procedures of any kind unless such treatment, services,
surveillance, or procedures are directly related to a manifest physical or mental
injury or disease." Thus, the amendment effectively eliminated medical monitoring
as a compensable item of damage in the absence of a manifest physical or mental
injury or disease. The provisions of the Act were made "applicable to all claims
existing or actions pending on its effective date and all claims arising or actions
filed on and after its effective date."
Subsequently, in Bourgeois v. A.P. Green Industries, Inc., 00-1528 (La.4/3/01), 783
So.2d 1251 ("Bourgeois II" ), this court was called upon to resolve the issue of
whether the legislature's amendment could constitutionally be applied to the
Bourgeois plaintiffs, whose suit was filed on January 23, 1996. This court held
that it could not, concluding that such a retroactive application of the Act would
impermissibly divest the plaintiffs of a vested right in their accrued causes of
action.
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Thus, it is clear that when the instant suit was filed, Louisiana law provided a remedy
in the form of medical monitoring for asymptomatic plaintiffs who had been exposed to
asbestos. However, unlike the Bourgeois plaintiffs, who sought the **16 establishment of
a fund to cover the costs of medical monitoring, plaintiffs herein sought damages,
inclusive of "punitive or exemplary, compensatory, clean-up damages, and other damages
reasonable in the premises, past, present, and future." In turn, the trial court awarded
an assortment of damages to each plaintiff, including damages for physical injury and
increased risk of developing asbestos-related cancer. The trial court stated:
This Court finds that for the entire period of time that the asbestos contaminated soil
remained on the plaintiffs' properties, they were exposed to some asbestos fiber count
which exceeded that of normal ambient air.... This Court finds that the plaintiffs'
additional exposure to asbestos fibers was slight. This Court finds that it is more
probable than not that the plaintiffs have suffered an increased risk of developing an
asbestos related disease but that the increased risk is also slight. This Court finds
that the plaintiffs have suffered an injury because they have been exposed to an
asbestos fiber count which places each of them at an increased risk of developing an
asbestos related cancer.
We find no manifest error in the trial court's conclusions that plaintiffs were exposed
to an asbestos fiber count that slightly exceeded that of normal ambient air and that it
is more probably than not that plaintiffs have suffered a slightly increased risk of
developing an asbestos-related disease.
[8] In this case, then, we are confronted with the question of whether Louisiana law
permits the recovery of compensatory damages for a "slight" exposure to asbestos, which
placed plaintiffs at a "slightly" increased risk of contracting cancer in the future, in
the absence of evidence that any plaintiff currently has cancer, or any other
asbestos-related condition.
A review of jurisprudence from other states reveals that a majority of jurisdictions have
not recognized a cause of action *1231 for increased risk of future injury when the
potential for the occurrence of future injury is speculative or merely **17 "possible."
See Kelley v. Cowesett Hills Ass'n, 768 A.2d 425 (R.I.2001) (holding "that the possibility
of contracting cancer resulting from mere exposure to a carcinogen, although potentially
increasing one's risk of developing cancer, is too tenuous to be a viable cause of
action"); Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997)
(explaining that Pennsylvania law does not recognize claims for increased risk of cancer
"where cancer is not present, thus eliminating the recovery of damages based on a
speculative future event, the possible occurrence of cancer"); Capital Holding Corp. v.
Bailey, 873 S.W.2d 187 (Ky.1994) (finding that plaintiff's cause of action does not accrue
until he can prove some physically harmful result from his exposure to a toxic substance);
Mauro v. Raymark Indus., Inc., 116 N.J. 126, 561 A.2d 257 (1989) (observing that the
majority of courts are uniform in their conclusion that in order to recover damages for
enhanced risk of contracting a serious illness due to exposure, "plaintiff must prove that
the prospective disease is at least reasonably probable to occur").
Turning our attention to the instant case, we decline to extend Bourgeois I to allow the
recovery of compensatory damages for a "slightly" increased risk of developing cancer. In
Bourgeois I, this court allowed recovery under limited circumstances of medical monitoring
costs to plaintiffs suffering an increased risk of contracting a serious latent disease
when they can successfully prove by competent expert testimony, inter alia, that they have
suffered a significant exposure to a hazardous substance and the increased risk of
developing such a disease is significant. We find it would be nonsensical to allow a
plaintiff to recover compensatory damages for an increased risk of developing an
asbestos-related disease upon less proof than that required for recovery of medical
monitoring expenses.
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In the instant case, plaintiffs offered the testimonies of several experts to **18
support their allegation that they were exposed to asbestos fibers, and consequently, they
have an increased risk for developing asbestos- related conditions. Dr. James R.
Millette, an environmental scientist who was accepted as an expert in the fields of
environmental science and microscopy, testified that he performed microscopic testing on
the following samples associated with this case: (1) bulk pieces of transite taken from
the soil in plaintiffs' yards; (2) dust samples obtained from inside of plaintiffs'
homes; (3) air samples taken from plaintiffs' homes; and (4) water samples obtained from
plaintiffs' water supply.
Dr. Millette stated that the soil he tested contained a combination of chrysotile [FN7]
asbestos and asbestos cement. Dr. Millette recorded a videotape depicting his examination
of the samples of the pieces of transite obtained from plaintiffs' lawns. In the
videotape, Dr. Millette pointed out asbestos fibers which were protruding from the edge of
the bulk material. Dr. Millette testified that the asbestos materials were friable [FN8]
in the sense that fibers will be released when they are abraded or scratched. The doctor
demonstrated this in the videotape by rubbing his finger across the fibers, resulting in
some particles falling off, releasing dust fibers. He also demonstrated that asbestos
fibers were released when the bulk pieces were *1232 stepped upon. Dr. Millette explained
that the fibers themselves were too large to be respirable, but they were capable of being
inhaled and broken down into smaller, respirable fibers. He also opined that
respirable-sized fibers are released when the larger fibers are abraded.
FN7. Chrysotile is a form of asbestos that is considered less dusty and more easily
eliminated from the human body than other forms of asbestos.
FN8. Asbestos is considered "friable" if it crumbles or releases fibers when
manipulated.
Dr. Millette testified that his analysis of the settled dust samples from each of the
properties at issue contained various amounts of asbestos. He also stated that the **19
evidence of the asbestos cement material found in the dust was similar to that found in
the soil. Dr. Millette further testified that the air monitoring performed during the
remediation process revealed asbestos in levels below the limit of detection.
Dr. John M. Dement, an industrial hygenist and epidemiologist, also testified on behalf
of plaintiffs. He stated that inhalation is the primary method of exposure to asbestos,
and there is no level of cumulative exposure below which there is no increased risk for
asbestos-related diseases. He stated that any increase in exposure results in a risk
above that for the general population. Dr. Dement also testified that mesothelioma may
result from exposure to low levels of asbestos and from very brief exposures.
Dr. Dement further testified that every person exposed to asbestos will not suffer an
adverse health effect because people differ in their susceptibility to developing a
disease. He also stated that although the level of exposure that plaintiffs in this case
received cannot be quantified, plaintiffs have an increased risk of developing
asbestos-related cancers based on the presence of asbestos in the soil on their lawns and
inside of their homes.
Dr. Richard A. Lemen, an epidemiologist, also testified on plaintiffs' behalf. He stated
that many everyday activities performed by plaintiffs can generate dust, some of which
contained asbestos fibers. He testified that any level of exposure to asbestos will place
an individual at risk for developing asbestos-related conditions. Dr. Lemen further
testified that there is no "safe" level of exposure to any carcinogen because immune
systems vary from person to person, and everyone is in a different state of health. He
also stated that some individuals, particularly young children and older adults, are more
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Page 15
susceptible, and their likelihood of developing disease can be much greater. He further
stated that there have been no studies conducted to show **20 how many asbestos fibers
will be necessary to cause asbestos-related disease.
Conoco introduced the testimony of a barrage of expert witnesses to refute plaintiffs'
allegation that they were exposed to asbestos which places them at an increased risk for
developing asbestos-related disease. Dr. Richard J. Lee examined samples from the soil,
dust, air, and water on behalf of Conoco. He testified that the samples from the soil,
dust, and air were below the limit of detection for asbestos and that the only meaningful
asbestos fibers he detected were found in the water samples of the homes. [FN9] Dr. Lee
opined that since there was asbestos in the water, there would be an on-going source of
asbestos particles in the dust or whereever water is used. He also testified that
asbestos fibers were detected in other sources in some of the homes, such as the window
caulking, floor tiles and linoleum, and roofing materials.
FN9. According to Dr. Lee, the water supply in the region surrounding Lake Charles
is transported via asbestos-containing cement pipes.
*1233 Dr. Lee also testified that the asbestos found in the bulk pieces removed from
plaintiffs' lawns was non-friable and would not release loose fibers unless it was
"severely abraded." When asked what effect would activities such as mowing the lawns,
raking, and shoveling have on the solid pieces of asbestos-containing material, Dr. Lee
responded that when there is a low concentration of material in the soil, there is a
reduced chance that the material would be affected by everyday activities.
Mr. William Coltrin, the program manager for the asbestos and lead section of the
Louisiana Department of Environmental Quality ("DEQ") and a certified asbestos inspector,
also testified. He stated that transite is normally considered non-friable, but he
admitted that it can be rendered friable by "external forces." Mr. Coltrin testified that
if the transite material was subjected to enough pressure, it could be turned "into a
dust, and that dust has potential to become airborne and if the fibers are small enough,
then you can breathe them in...." He further stated that if transite **21 is run over with
a lawnmower, "projectile" and "breakage" problems would result.
Dr. Stanley M. Pier, an expert in the field of environmental toxicology, testified that
plaintiffs have not sustained any significant exposure to asbestos, and they do not have
any increased risk for the development of any disease attributable to asbestos. Dr. Pier
explained that plaintiffs' theory is based on the "no threshold dose response model"
utilized by the United States Department of Labor's Occupational Safety and Health
Administration (OSHA), which indicates that there is no level of exposure below which
there is not some risk of disease. In Dr. Pier's opinion, the no threshold model is
inappropriate in situations involving asbestos.
[9] It is abundantly clear that none of the experts could conclude that any of the
plaintiffs had suffered any "significant" exposure to asbestos fibers. Furthermore, the
experts admittedly could not quantify the degree of exposure that plaintiffs experienced,
if in fact they were exposed. At best, the testimony adduced from plaintiffs' experts
demonstrated: (1) that the soil, air, and dust samples showed the presence of a small
amount of asbestos; (2) that it is possible that activities performed by plaintiffs could
have resulted in the release of asbestos fibers; (3) that if loose fibers were in fact
released, it is possible that some of those fibers were respirable; and (4) that if some
of the fibers were respirable, it is possible that plaintiffs could have inhaled asbestos
fibers during the period that the soil remained on the property. The trial court
therefore correctly determined that plaintiffs' exposure to asbestos fibers in addition to
those found in ambient air, was "slight," and that any increased risk of contracting an
asbestos-related health condition was also "slight." Under the circumstances, plaintiffs
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have failed to prove they are entitled to compensatory damages for an increased risk of
developing an asbestos-related disease. Accordingly, the judgment of the court of appeal
affirming the trial court's award of **22 damages for "physical injury and an increased
risk of developing asbestos related cancer" is reversed.
Mental Anguish Damages
Conoco also contends that the award for damages for past, present, and future mental
anguish was erroneous under the facts of this case. Specifically, Conoco alleges that
plaintiffs' fear, if any, is unreasonable due to the insignificant amount of asbestos they
allegedly inhaled and its insignificant effect on their risk of contracting an
asbestos-related disease.
*1234 In Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), this
court reinstated a trial court's award for anxiety and mental anguish suffered by a
plaintiff whose right hand was permanently disabled by radiation burns resulting from
defendant's negligence. In finding the court of appeal had erred in reversing the trial
court's award for fear of cancer and of future progression of the disability, this court
stated:
We find, for instance, no warrant for the intermediate court to disregard as
noncompensable the fear with which the plaintiff lives every day that the condition in
his hand might start spreading and he might have to lose his fingers. While to a
scientist in his ivory tower the possibility of cancerous growth may be so minimal as to
be untroubling, we are not prepared to hold that the trier of fact erred in finding
compensable this real possibility to this worrying workman, faced every minute of his
life with a disabled and sometimes painful hand to remind him of his fear.
Id. at 353 (internal citation omitted). As can be seen, however, Anderson is
distinguishable from the case at bar as it involved an award for mental anguish
accompanied by a manifest physical injury.
In Moresi v. State, Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La.1990), this court
held that a defendant will generally not be held liable where his conduct is merely
negligent and causes only emotional injury unaccompanied by physical injury. **23 This
court noted deviations from this general rule in various situations, including those cases
that involve "fright or nervous shock, where the plaintiff was actually in great fear for
his personal safety." Id. at 1096. This court concluded that cases allowing exceptions
to the general rule all involve "the especial likelihood of genuine and serious mental
distress, arising from the special circumstances, which serves as a guarantee that the
claim is not spurious." Id.
The problems inherent in awarding damages for mental disturbance in the absence of
manifest physical injury are particularly pronounced in cases involving exposure to
asbestos or other carcinogens. These concerns were confronted by the United States
Supreme Court in Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 434, 117
S.Ct. 2113, 138 L.Ed.2d 560 (1997). In that case, the Court was faced with the issue of
whether the Federal Employers' Liability Act ("FELA") allowed a worker who had been
exposed to asbestos, but did not have any symptoms of a disease, to recover damages for
fear of developing a disease in the future. The Court held that the plaintiff could not
recover under FELA for negligent infliction of emotional distress unless, and until, he
had manifested symptoms of a disease. The Court stated:
[T]he physical contact at issue here--a simple (though extensive) contact with a
carcinogenic substance--does not seem to offer much help in separating valid from
invalid emotional distress claims. That is because contacts, even extensive contacts,
with serious carcinogens are common. They may occur without causing serious emotional
distress, but sometimes they do cause distress, and reasonably so, for cancer is both an
unusually threatening and unusually frightening disease. The relevant problem, however,
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remains one of evaluating a claimed emotional reaction to an increased risk of dying.
An external circumstance--exposure--makes some emotional distress more likely. But how
can one determine from the external circumstance of exposure whether, or when, a claimed
strong emotional reaction to an increased mortality risk ... is reasonable and genuine,
rather than **24 overstated--particularly when the relevant *1235 statistics themselves
are controversial and uncertain (as is usually the case), and particularly since neither
those exposed nor judges or juries are experts in statistics? The evaluation problem
seems a serious one.
Id. at 521 U.S. 434-35, 117 S.Ct. at 2119-20 (internal citations omitted).
Similarly, in Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88 (Tex.1999), a
case in which electrical workers filed suit, based upon an exposure to asbestos products,
the Texas Supreme Court stated:
A person exposed to asbestos can certainly develop serious health problems, but he or
she also may not. The difficulty in predicting whether exposure will cause any disease
and if so, what disease, and the long latency period characteristic of asbestos-related
diseases, make it very difficult for judges and juries to evaluate which exposure claims
are serious and which are not. This difficulty in turn makes liability unpredictable,
with some claims resulting in significant recovery while virtually indistinguishable
claims are denied altogether. Some claimants would inevitably be overcompensated when,
in the course of time, it happens that they never develop the disease they feared, and
others would be undercompensated when it turns out that they developed a disease more
serious even than they feared.... Indeed, most Americans are daily subjected to toxic
substances in the air they breathe and the food they eat. Suits for mental anguish
damages caused by exposure that has not resulted in disease would compete with suits for
manifest diseases for the legal system's limited resources. If recovery were allowed in
the absence of present disease, individuals might feel obliged to bring suit for such
recovery prophylactically, against the possibility of future consequences from what is
now an inchoate risk. [footnote omitted]. This would exacerbate not only the
multiplicity of suits but the unpredictability of results.
Id. at 93.
[10] Thus, under the rule announced in Moresi, which must be stringently applied in
asbestos exposure cases due to their inherently speculative nature, in order for
plaintiffs to recover emotional distress damages in the absence of a manifest physical
injury, they must prove their claim is not spurious by showing a particular likelihood
**25 of genuine and serious mental distress arising from special circumstances.
In the instant case, the trial court failed to apply the correct standard in evaluating
plaintiffs' emotional distress claims. Instead of determining whether plaintiffs proved a
particular likelihood of genuine and serious mental distress arising from special
circumstances, the trial court evaluated the evidence to determine whether plaintiffs'
fears of developing cancer were reasonable. [FN10] Such an evaluation constituted legal
error. In light of this legal error, we must review the record de novo to determine
whether plaintiffs proved they are entitled to emotional distress damages.
FN10. Specifically, the trial court stated:
This Court makes particular note that it was swayed not only by the vast
preponderance of the evidence indicating that the plaintiffs' fears were reasonable,
but also with an abysmal effort of the defendants to attempt to present evidence
that the plaintiffs fears were unreasonable. This Court finds that the reasonable
and prudent man will experience worry and anxiety after learning that he is being or
has been exposed to asbestos. To rule otherwise, this Court would be required to
abandon all logic and reasoning.
[11] The record indicates that while plaintiffs expressed a generalized fear of *1236
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Page 18
contracting an asbestos-related disease, they failed to prove they suffered genuine and
serious mental distress arising from the placement of asbestos-containing soil on their
properties. Except for the chest X-rays arranged by plaintiffs' attorneys in the weeks
prior to trial, plaintiffs did not seek medical treatment for their alleged physical
concerns due to their exposure to the contaminated soil. In fact, the trial court's award
of past medical expenses to each adult plaintiff equaled the amount charged by a
psychiatrist and his associate to evaluate plaintiffs prior to trial at the request of
plaintiffs' counsel. Additionally, while voicing concerns about their exposure to
asbestos, some plaintiffs were exposed to small amounts of asbestos in their window **26
caulking, floor tiles, and drinking water, but failed to have these sources of asbestos
removed. The Lamberts testified they were concerned that asbestos fibers from the soil
were tracked into their home and remained in their carpets, but they have never had the
carpets tested for asbestos or removed. Dr. James M. Anderson, a psychiatrist who
evaluated the adult plaintiffs, with the exception of George Shephard, at the request of
plaintiffs' counsel, testified that some plaintiffs' preexisting anxiety disorders were
aggravated by the stress of the exposure to asbestos and other plaintiffs' preexisting
health conditions were exacerbated by the worry associated with the exposure to asbestos.
Dr. Anderson also testified that some plaintiffs were depressed due to the additional
stress created by the contaminated soil. Based on the evidence presented by plaintiffs
concerning emotional distress they suffered because of the placement of asbestoscontaining soil on their properties, we cannot say they suffered from genuine and serious
mental distress that guarantees their claim for mental distress damages is not spurious.
While we recognize that much of the general public exhibits a degree of anxiety
concerning exposure to asbestos and asbestos-containing materials, it is a fact of modern
life that most of us are exposed to de minimus amounts of asbestos on a daily basis.
Plaintiffs have failed to prove their exposures resulted in a particular likelihood of
genuine and serious mental distress. They are therefore not entitled to emotional distress
damages. The judgment of the court of appeal affirming the trial court's award of damages
for plaintiffs' "past, present, and future mental anguish" is reversed.
Punitive Damages
In its next assignment of error, Conoco contends that the trial court erred in **27
awarding plaintiffs punitive damages pursuant to former La. C.C. art. 2315.3. [FN11]
Prior to its repeal in 1996, Article 2315.3 provided in pertinent part:
FN11. La. C.C. art. 2315.3 was repealed by Acts 1996, 1st Ex.Sess., No. 2, effective
April 16, 1996. Section 2 of that Act provided, "The provisions of this Act shall
only be applicable to causes of action which arise on or after the effective date
hereof." Consequently, the provisions of former Article 2315.3 are applicable to
the instant case.
In addition to general and special damages, exemplary damages may be awarded, if it is
proved that plaintiff's injuries were caused by the defendant's wanton or reckless
disregard for public safety in the storage, handling, or transportation of hazardous or
toxic substances.
Conoco maintains that the award was made in error because its actions did not rise to
the level of "wanton or reckless," and it was not involved in the "storage, handling, or
transportation of hazardous or toxic substances."
[12][13] The statute providing for exemplary damages for wanton and reckless disregard
for public safety in storage, *1237 handling or transportation of hazardous or toxic
substances must be strictly construed, as it imposes penalty. In re New Orleans Train Car
Leakage Fire Litigation, 95-2710, 95-2721, 96-0016, 95-2734, 95-2, 671 So.2d 540 (La.App.
4 Cir. 3/20/96); writ denied, 96-0972, 96-0977, 96-0978, 96-0984, 96-1287, 96- 1311
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(La.6/28/96), 675 So.2d 1120-21; cert. denied, 519 U.S. 1009, 117 S.Ct. 512, 136 L.Ed.2d
402. To obtain an award of exemplary or punitive damages under La. C.C. art. 2315.3, the
plaintiff must prove: (1) that the defendant's conduct was wanton and reckless by proving
that "the defendant proceeded in disregard of a high and excessive degree of danger,
either known to him or apparent to a reasonable person in his position, or that the
defendant engaged in "highly unreasonable conduct, involving an extreme departure from
ordinary care, in a situation where a high degree of danger is apparent;" (2) that the
danger created by the defendant's wanton or reckless conduct threatened or endangered
public safety; (3) that the defendant's **28 wanton or reckless conduct occurred in the
storage, handling or transportation of hazardous or toxic substances; and (4) that the
plaintiff's injury was caused by the defendant's wanton or reckless conduct. Billiot v.
B.P. Oil Co., 93-1118, pp. 16-17 (La.9/29/94), 645 So.2d 604, 613.
It is unclear whether the trial court applied the correct standard to determine whether
Conoco's conduct was "wanton or reckless" under this court's jurisprudence interpreting
La. C.C. art. 2315.3. Without elaborating on its findings, the trial court simply found
that Conoco was "reckless in some degree," but that its recklessness did not rise "to
levels that substantial punitive damages should be awarded." We agree with the court of
appeal's statement that "[t]here are no degrees of recklessness." Bonnette at p. 4, 801
So.2d at 508. We disagree, however, with its decision to evaluate the trial court's
ambiguous finding of "somewhat reckless" conduct under a manifest error standard of review
and find the trial court's award of punitive damages in this case must be reviewed de
novo.
[14] The evidence presented at trial revealed that prior to the excavation of the soil,
Conoco performed a Level I site assessment, in which the properties were visually
inspected. David Williams, the Conoco employee in charge of environmental concerns for
the LOHC project, prepared an asbestos investigation report in which he noted that the
Level I assessment revealed the existence of transite on the exterior of two of the
abandoned houses on the site. However, a Level II assessment, which involves collecting
samples, was not performed. According to Mr. Williams, who had no experience with
asbestos or any asbestos-related training, the Level II assessment was not performed
because it was not required by law. Furthermore, despite Conoco's policy that soil
samples must be taken when an area is excavated and analyzed for hazardous materials, Mr.
Williams admitted that he never told **29 anyone about the presence of asbestos on the
site. Rather, haulers were contracted to haul the soil away, without any indication that
the transite was present at the site from which the soil was taken. It was DEQ that
notified Conoco that hazardous material had been found in the soil from the LOHC project
site after one of the property owners discovered the transite on his property.
Mr. William Coltrin, the program manager for the asbestos and lead section of the DEQ and
a certified asbestos inspector, testified that at the time of the demolition of the homes
at the Conoco site, he was aware that some of the homes contained transite siding. He
offered unrefuted testimony that Conoco did not violate *1238 any DEQ asbestos regulations
in the demolition of the houses because, at the time of the demolition, single family
dwellings were not subject to DEQ regulation. Mr. Coltrin explained that because the
demolition was a non-regulated activity, the removal of the soil was also not subject to
DEQ regulation. Mr. Coltrin stated that because the transite in question was non-friable,
Conoco was permitted to dispose of it in the manner in which it did. He further testified
that once it was discovered that the soil in plaintiffs' yards contained pieces of
transite, Conoco contacted the DEQ to ascertain how to remove and dispose of the soil and
was advised to merely pick up the obvious pieces of transite and dispose of it properly.
However, he testified, "Conoco volunteered to go past that and remove soils and transite
and to put the property back in the same state as it had been when the dirt was put there
and spread." Mr. Coltrin stated that Conoco's actions were "really in excess of what we
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Page 20
would have required of them." Mr. Coltrin further testified that DEQ would likely have
allowed Conoco to leave the soil in plaintiffs' yards once the pieces of transite were
removed.
In light of Mr. Coltrin's uncontroverted testimony, we find that Conoco's **30 conduct
did not rise to the level of "wanton or reckless" as required by La. C.C. art. 2315.3.
Although the actions of Mr. Williams, including his failure to take any steps to inform
anyone of the presence of asbestos on the site, leave much to be desired, it is clear that
Conoco's actions were not in violation of any DEQ regulation. Because Conoco acted in
compliance with DEQ regulations in effect during the events at issue, we cannot say that
defendant's conduct was highly unreasonable or that it involved an extreme departure for
ordinary care. Accordingly, the trial court's award for punitive damages is hereby
reversed. [FN12]
FN12. Because we conclude that Conoco's actions were not wanton and reckless, we
need not reach the issue of whether Conoco was involved in the "storage, handling,
or transportation of hazardous or toxic substances."
Damages for Diminished Property Values
[15] In its final assignment of error, Conoco argues that the trial court erred in
awarding plaintiffs damages for diminution in property value. Conoco contends that the
expert testimony presented by plaintiffs and relied upon by the trial court is based upon
an unproven assumption "that the presence of some small pieces of transite in a yard
located in a neighborhood where other houses are totally encased in the same material has
the same 'blight' effect as a high probability of flooding." Additionally, Conoco asserts
that plaintiffs' expert did not consider the valuable improvements Conoco made to
plaintiffs' properties during its abatement activities.
Plaintiffs called Mr. Leonard E. Pauley, Jr. as an expert in real estate appraisal. Mr.
Pauley appraised each plaintiff's property using a typical Fannie Mae report to ascertain
the market value of the property. Mr. Pauley performed the first appraisal as if the
properties were free of any "outside influence," and then prepared a report to ascertain a
"stigma adjustment." Mr. Pauley testified that plaintiffs' property suffered a 10%
diminution in value following the events in question, assuming that **31 all asbestos
fibers were cleaned from the properties. Mr. Pauley based his opinion on the impact that
the floods of 1980 and 1982 had on the Cherryhill Subdivision, which is located in the
same general area as plaintiffs' properties. Mr. Pauley stated that after the flood, the
houses decreased in value, and potential home buyers were reluctant to buy homes in that
subdivision. He concluded that the slow sales "implies that there was more resistance
*1239 towards purchasing in the subdivision after the flood, which leads me to believe
that the public opinion was adversely affected because of the flood even though this had
never happened before this time period and has not happened since."
Mr. Pauley opined that plaintiffs' property values would be lower even after the property
had been remediated due to the "stigma effect" the presence of asbestos would have on the
properties. He explained that when plaintiffs attempt to sell their properties, they will
have to disclose the fact that the property had once been contaminated with
asbestos-containing soil. He stated that in his opinion, the buying public would
demonstrate some resistance to buying the property once the disclosure is made. He also
stated that most prudent buyers would be more likely to buy a house that has never been
contaminated with a hazardous substance than one that has been contaminated and
remediated. He stated that the word "asbestos" is frightening to people because most
people are aware that it is a carcinogen, and even if it is cleaned up, people are still
concerned. Mr. Pauley agreed that the improvements Conoco made to plaintiffs' properties
during remediation enhanced the outward appearance of the homes and could make the homes
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more sellable." However, he testified that a home that is more sellable is not necessarily
more valuable. Mr. Pauley stated that improving the looks of a home does not necessarily
change its value.
Conoco called Mr. Charles N. Cummings as an expert in real estate appraisal, **32
including the appraisal and evaluation of property that has been allegedly environmentally
impacted. Mr. Cummings concluded that none of plaintiffs' properties suffered any
diminution in value due to the contamination of the soil. Mr. Cummings testified that the
stigma effect diminishes rapidly after the remediation process is complete. He then
testified as to the post-remediation value of plaintiffs' properties, taking into
consideration a potential stigma effect on each of the properties. Mr. Cummings stated
that, in fact, Conoco's remediation efforts, which included landscaping, added value to
plaintiffs' properties. Thus, Mr. Cummings concluded that plaintiffs' properties were not
adversely affected by the stigma of having had asbestos-containing materials on their
lawns. He opined that a potential buyer would prefer a property that has been
contaminated and remediated over one that has never been remediated. He explained that
property that has been remediated has been declared "safe," while it is unknown whether
that which has never been remediated is safe.
After considering the above testimony regarding the value of plaintiffs' property values
following the placement of contaminated soil on their lawns and subsequent remediation,
the trial court concluded that the properties suffered a 10% devaluation due to the stigma
of having been contaminated with asbestos. In reaching this conclusion, the trial court
found that the only credible evidence presented regarding this issue was the testimony of
Mr. Pauley. The court specifically found the testimony of Mr. Cummings was not credible,
stating:
It is significant to note that this Court finds that the direct examination testimony of
Conoco's real estate expert was totally incredible. Mr. Charles Cummings testified that
it was his opinion that future purchases of the plaintiffs' properties would be more
likely to buy a home that had been contaminated with asbestos and cleaned, than a home
never contaminated with asbestos. In addition, it is important to note Mr. Cummings was
viewed by this Court **33 by his demeanor, overall presence as a direct *1240
examination witness, and his apparent lack of candor under cross-examination. This
Court finds that the only credible testimony given by Mr. Cummings as to causation, came
while he was pressed under cross-examination to admit that all of this findings were
based upon removal of all asbestos materials from the properties and that he had never
been informed by Conoco that asbestos may have remained in the plaintiffs' homes.
The court of appeal concluded it was in agreement with the trial court's findings as to
the diminution of plaintiffs' property values and affirmed the trial court's judgment in
this respect.
[16][17] The principle that questions of credibility are for the trier of fact to resolve
applies to the evaluation of expert testimony, unless the stated reasons of the expert are
patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). Where
two permissible views of the evidence exist, the factfinder's choice between them cannot
be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.
In the instant case, the trial court was clearly presented with two permissible views of
the evidence, and it is apparent that the court found one expert credible and one
incredible. Therefore, we find the trial court's award of property damages based on a 10%
diminution in value due to the "stigma effect" was neither manifestly erroneous nor
clearly wrong. Accordingly, the judgment of the court of appeal affirming the trial
court's award for property damage is affirmed.
Decree
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 22
For the foregoing reasons, we reverse those portions of judgment of the court of appeal
that affirm the trial court's awards of damages for "physical injury and an increased risk
of developing asbestos-related cancer," "past, present, and future mental anguish," and
"punitive damages." That portion of the judgment of the court of appeal that affirms the
trial court's awards for "property damage" is affirmed.
**34 AFFIRMED IN PART AND REVERSED IN PART.
JOHNSON, J., concurs in part, dissents in part and assigns reasons.
**1 JOHNSON, Justice, concurring, in part;
dissenting, in part.
I concur with the majority's opinion to the extent that it affirms the trial court's
awards for property damage. Conoco argues that the trial court erred in awarding
plaintiffs damages for diminution in property value. According to Conoco, "the lower
courts' award of stigma damages to plaintiffs' property ignores the uncontroversial
evidence of a net increase in value...." Regarding diminished property value, plaintiffs'
real estate expert, Leonard Pauley, testified that plaintiffs' property suffered a 10%
diminution in value, assuming that all asbestos fibers were cleaned from the properties.
Conversely, defense expert, Charles Cummings, testified that Conoco's remediation efforts
in fact increased plaintiffs' property values.
Regarding Mr. Cummings' testimony, the trial court stated:
[T]his court finds that the direct examination testimony of Conoco's real estate expert
was totally incredible. Mr. Charles Cummings testified that it was his opinion that
future purchasers of the plaintiffs' properties would be more likely to buy a home that
had been contaminated with asbestos and cleaned, than a home never contaminated with
asbestos. In addition, it is important to note Mr. Cummings was viewed by this Court by
his demeanor, overall presence **2 as a direct examination witness, and his apparent
lack of candor under cross-examination. This Court finds that the *1241 only credible
testimony given by Mr. Cummings as to causation came while he was pressed under crossexamination to admit that all of his findings were based upon removal of all asbestos
materials from the properties and that he had never been informed by Conoco that
asbestos may have remained in the plaintiffs' homes.
(Emphasis added)
The trial court was clearly presented with two permissible views of the evidence, and it
is apparent that the court disbelieved the testimony of Conoco's real estate expert.
Based upon my review of the testimony, I cannot say that the trial court's finding was
clearly wrong. Accordingly, I agree with the majority's affirmance of the trial court's
award for diminished property value.
However, I dissent from the results reached by my colleagues herein in all other
respects.
Significant Exposure to a Proven Hazardous Substance.
The trial court, after hearing all of the testimony and the evidence presented, indicated
that it was particularly persuaded by the testimony of plaintiffs' expert witnesses.
After reviewing the record in its entirety, I cannot disagree. It is undisputed that
asbestos is a known hazardous substance. The testimony reveals that inhalation is the
primary method of exposure to asbestos. The contaminated soil remained in place on
plaintiffs' lawns for nearly two years. While none of the experts could quantify
plaintiffs' levels of exposure, many of them conceded that many everyday activities would
have generated loose, respirable asbestos fibers. Defendants contend that any exposure
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 23
that plaintiffs might have is de minimus. What they fail to consider is the fact that
their testing and air sampling was performed after the visible pieces of transite had been
removed from the premises. Furthermore, the samples collected by defendants were
admittedly collected during a time that the soil was being wet down to decrease the
circulation of dust.
**3 Increased risk of contracting a disease.
No particular level of quantification is necessary to satisfy the requirement of
increased risk. Bourgeois, 716 So.2d at 360. A plaintiff need not prove a certain
probability of actually suffering physical harm because of his or her exposure. It is
sufficient that the plaintiff show a significant degree of increased risk. Id. In
addition, the plaintiff must prove that the illness, the risk of which has been increased
by the exposure, is both serious and latent. Id.
Dr. John M. Dement, an industrial hygenist and epidemiologist, testified on behalf of
plaintiffs that the biological effects of exposure to asbestos fibers include asbestosis,
mesothelioma, increased risk of general gastrointestinal cancer, cancer of the larynx, and
cancer of the kidneys. According to Dr. Dement, inhalation is the primary method of
exposure to asbestos, and there is no level of cumulative exposure below which there is no
increased risk for asbestos-related diseases. He stated that any increase in exposure
results in a risk above that for the general population. Dr. Dement testified that
mesothelioma may result from exposures to low levels of asbestos, as evidenced by the
wives of workers who contracted asbestos-related diseases by washing their husbands'
asbestos-contaminated clothing and childre n who contracted asbestos-related diseases from
residing in these households. He also stated that mesothelioma may result from very brief
exposures.
Dr. Dement further testified that every person exposed to asbestos will not suffer an
adverse health effect because people differ in their susceptibility to developing a
disease. He also stated that although the *1242 level of exposure that plaintiffs in this
case received cannot be quantified, plaintiffs have an increased risk of developing
asbestos-related cancers based on the presence of asbestos in the soil on their lawns and
inside of their homes.
Dr. James A. Merchant, a pulmonary physician and epidemiologist also testified **4 that
plaintiffs have an increased risk of developing asbestos- related diseases, particularly
lung cancer and mesothelioma. He stated that the health risk cannot be quantified, and he
opined that plaintiffs should undergo a lifetime of medical surveillance to monitor the
development and progress of any disease. Dr. Merchant also testified that the latency
period for asbestos- induced lung cancer is an average of twenty (20) years; the latency
periods for mesothelioma and asbestos-related pleural disease are approximately twentyfive (25) years. He stated that generally, the lower the dose of exposure, the longer the
latency period is likely to be.
Dr. James D. Crapo, an expert in "general and internal medicine, pulmonary medicine,
diagnosis and treatment of asbestos-related disorders, toxicology, and the application of
epidemiology to pulmonary medicine" testified. He testified that in this case, plaintiffs
have a zero percent increased risk for disease. He stated that the respiratory system is
designed to clean and clear inhaled pollutants.
As mentioned above, plaintiffs lived in close proximity to the soil contaminated with
asbestos for approximately twenty months. Some of the airborne fibers were transported
into their homes. While it may be true that the respiratory system is equipped to cleanse
the body of inhaled pollutants, it is evident from the many cases of asbestos-related
diseases that everyone's system is not capable of doing so. As recognized by the experts,
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 24
the susceptibility for developing such diseases vary on a case by case basis. Thus, I
decline to accept the position that plaintiffs are not at risk because of the human's
innate ability to rid the body of asbestos fibers.
Plaintiff's risk greater than that of public at large.
In this case, we were presented with testimony to show that we are all exposed to
asbestos in that it is a natural product of the environment. The testimony also revealed
that asbestos is present in the ambient air breathed by everyone on a daily basis. There
was also testimony which showed that asbestos fibers were present in **5 much of the water
supply in the Lake Charles area. However, it is clear that, in addition to all of the
asbestos present from other sources, plaintiffs suffered a clearly defined environmental
exposure to asbestos. Asbestos was present in their soil and in the settled dust in their
homes, asbestos which the public at large was not exposed to. Due to that additional
exposure, it stands to reason that plaintiffs' risk of disease would be greater than that
of the general public, with the possible exception of those who live and work in close
proximity of asbestos.
Monitoring procedures/Demonstrated clinical value
As mentioned above, Dr. Merchant recommended x-ray examinations every five years due to
the variability in the onset of asbestos-related diseases. He stated that if an
abnormality is detected, the examinations should be performed more frequently. Dr.
Merchant testified that medical surveillance could provide a means of documenting any
other intercurrent conditions. He further testified that early detection of lung cancer,
along with medical intervention, could result in a possible cure. He admitted that
mesothelioma is almost always fatal, and there is no known effective treatment. Regarding
pleural diseases, Dr. Merchant testified that they are usually not fatal, but they can
cause *1243 pulmonary impairment, and there is no known medical intervention. Whether
medical intervention would be helpful or not, anyone could benefit from the knowledge that
they have a serious or fatal medical condition, if for no other reason than to put their
affairs in order or spend additional time with loved ones.
Based on the foregoing, I am of the opinion that plaintiffs met their burden of proving a
compensable item of damage under the factors set forth in Bourgeois. Accordingly, I
believe that the trial court's award of damages for increased risk of developing
asbestos-related cancer should be affirmed.
Past, Present, and Future Mental Anguish
**6 Conoco argues that the trial court erred in awarding damages for past, present and
future mental anguish based upon the facts of this case. A trial court's findings of fact
may not be reversed absent manifest error or unless they are clearly wrong. Stobart v.
State of Louisiana, through Dep't of Transp. and Dev., 92-1328 (La.4/12/93), 617 So.2d
880. This court has a constitutional duty to review facts. Ambrose v. New Orleans Police
Dep't Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. Because we
have this duty, we must determine whether the verdict was clearly wrong based on the
evidence, or clearly without evidentiary support. Id. The reviewing court must do more
than simply review the record for some evidence which supports or controverts the trial
court's findings; it must instead review the record in its entirety to determine whether
the trial court's finding was clearly wrong or manifestly erroneous. Id. at 882. The
issue to be resolved by a reviewing court is not whether the trier of fact was right or
wrong, but whether the factfinder's conclusion was a reasonable one. Id. The reviewing
court must always keep in mind that "if the trial court's or jury's findings are
reasonable in light of the record reviewed in its entirety, the court of appeal may not
reverse, even if convinced that had it been sitting as the trier of fact, it would have
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 25
weighed the evidence differently." Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973
(La.1991)) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).
As the court of appeal pointed out, Louisiana law clearly recognizes a cause of action
for the fear of contracting cancer. In a landmark decision, Anderson v. Welding Testing
Laboratory, Inc., 304 So.2d 351 (La.1974), this court held that fear of developing cancer
is not an noncompensable injury. In Anderson, the defendant's employee inadvertently left
a radioactive pill at the plaintiff's premises. The plaintiff picked the pill up and kept
it for several days in order to return it to the defendant. As a result of handling the
radioactive material, the plaintiff suffered radiation burns to **7 his hand. The trial
court awarded damages for the physical injury to the plaintiff's hand, as well as damages
for anxiety and mental anguish due to the exposure to hazardous materials and the
possibility of cancer and of future progression of his injury. The court of appeal
reduced the damage award, finding that based on the expert testimony, the possibility of
cancer and of future progression of the disability was reasonably remote and that the
plaintiff's fears were groundless. This court found no abuse of discretion in the trial
court's decision, stating:
We find, for instance, no warrant for the intermediate court to disregard as
noncompensable the fear with which the plaintiff lives every day that the condition in
his hand might start spreading and he might have to lose his fingers. While to a
scientist in his ivory tower the possibility of cancerous growth may *1244 be so minimal
as to be untroubling, we are not prepared to hold that the trier of fact erred in
finding compensable this real possibility to this worrying workman, faced every minute
of his life with a disabled and sometimes painful hand to remind him of his fear.
Id. at 353.
More recently, in Moresi v. State, Through Department of Wildlife and Fisheries, 567
So.2d 1081 (La.1990), this court held that generally, a defendant will not be liable for
emotional injury unaccompanied by a physical injury. However, this court went on to state
that courts may deviate from the general rule in cases involving "fright or nervous shock,
where the plaintiff was actually in great fear for his personal safety." Id. at 1096.
This court went on to state the cases which allow deviations from the general rule all
involve "the especial likelihood of genuine and serious mental distress, arising from the
special circumstances, which serves as a guarantee that the claim is not spurious." Id.
at 1096, citing Prosser & Keeton § 54 at p. 362; W. Malone & L. Guerry, Studies in
Louisiana Tort Law, 45 (1970). In this case, it is undisputed that the soil on
plaintiffs' property contained transite and that asbestos fibers were found in the settled
dust inside plaintiffs' homes. Essentially all of the **8 experts conceded that the
transite, in its solid state, was non-friable, but when abraded, could release respirable
fibers. In fact, Dr. Millette demonstrated for the court that actions such as rubbing the
pieces with a finger and walking on them result in the release of loose fibers. It is
also undisputed that the soil remained on plaintiffs' property for approximately twenty
months while they performed various day to day activities on it. Whether the exposure to
asbestos was significant or not, plaintiffs herein have suffered real and reasonable fear
that they may someday suffer serious health conditions as a result of that exposure.
Accordingly, I believe that this constitutes especial likelihood of genuine and serious
mental distress, arising from the special circumstances" this court referred to in Moresi,
supra.
Additionally, plaintiffs have demonstrated a fear for their personal safety, as well as
the future health and safety of their families. Dr. James A. Anderson, a psychiatrist who
evaluated all of the plaintiffs, with the exception of George Shepard, testified regarding
plaintiff's sessions with him. Dr. Anderson opined that Heather Lambert as "significant
symptoms of anxiety and depression" which are directly attributable to her exposure to the
contaminated soil. Dr. Anderson also stated that Mrs. Lambert's preexisting anxiety
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 26
disorder was aggravated by the stress of worrying about the long-term effects of her
exposure to asbestos and that she "went ballistic" and suffered a "depressive episode"
after her exposure to the substance.
Dr. Anderson described David Lambert as being "apprehensive" about the loose fibers in
the soil. Mr. Lambert, who is concerned about the future consequences of his exposure,
experienced insomnia, nightmares, and shortness of breath at the thought of the
possibility that asbestos fibers could still be inside of his home.
Dr. Anderson testified that Kathy Shepard, who has an uncle who died of asbestos-related
lung cancer, is also fearful of the future consequences of being exposed to asbestos.
Mrs. Shepard reported feelings of depression which she **9 contributed to the contaminated
soil.
Lasalle Williams and Betty Williams, who both suffered from various preexisting health
conditions, were fearful of the effects that the exposure could have on their current
health. Dr. Anderson opined that Mr. Williams' physical symptoms, such as headaches,
shortness of breath, chest pain, have been exacerbated by his exposure to *1245 the
contaminated soil. Mrs. Williams, who has a history of respiratory problems, was anxious
that the exposure to asbestos would affect her breathing. Glenda Williams expressed a
primary concern for future health problems.
Dr. Anderson testified that Christine Goodness has a predisposition to panic disorder and
described her as "psychologically vulnerable." Mrs. Goodness also suffers from panic
attacks and multiple phobias. Dr. Anderson diagnosed her with major depression and
generalized anxiety disorder, and he opined that the stress as a result of her exposure to
asbestos exacerbated her preexisting condition.
Finally, David Goodness reported that the exposure to asbestos is "depressing." Dr.
Anderson testified that Mr. Goodness has a history of chronic depression, and the impact
of the additional stress caused by the exposure to asbestos was magnified by his mood
disorder.
After hearing all of the testimony and reviewing all of the evidence, the trial court
concluded that all of the plaintiffs, except Mr. Shepard, has suffered "mental anguish
arising out of fear of developing asbestos-related disease." The court went on to state:
This fear resulted form the plaintiffs' knowledge of their probable exposure to asbestos
fibers from the contaminated soil and their general knowledge that asbestos fibers can
cause cancer.
In my opinion, the trial court was not clearly wrong in finding that plaintiffs suffered
mental anguish as a result of their exposure to the asbestos contaminated soil. **10
Accordingly, I would affirm the trial court's awards for damages for past, present, and
future mental anguish.
Punitive Damages
Conoco contends that the trial court erred in awarding plaintiffs punitive damages
pursuant to LSA-C.C. art. 2315.3 (repealed in 1996). Prior to its repeal, LSA-C.C. art.
2315.3 granted a right to seek an exemplary or punitive damage award to any person injured
by a defendant's wanton or reckless disregard for public safety in the storage, handling,
or transportation of hazardous or toxic substances. Conoco maintains that the award was
made in error because its actions did not rise to the level of "wanton or reckless," and
it was not involved in the "storage, handling, or transportation of hazardous or toxic
substances."
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 27
The statute providing for exemplary damages for wanton and reckless disregard for public
safety in storage, handling or transportation of hazardous or toxic substances must be
strictly construed, as it imposes penalty. In re New Orleans Train Car Leakage Fire
Litigation, 95-2710, 95-2721, 96-0016, 95-2734, 95-2, 671 So.2d 540 (La.App. 4 Cir.
3/20/96); writ denied, 96- 0972, 96-0977, 96-0978, 96-0984, 96-1287, 96-1311
(La.6/28/96), 675 So.2d 1120- 21; cert. denied, 519 U.S. 1009, 117 S.Ct. 512, 136 L.Ed.2d
402. To recover under this statute authorizing exemplary damages where a plaintiff's
injuries were caused by defendant's wanton or reckless disregard for public safety in the
storage, handling or transportation of hazardous or toxic substances, the plaintiff must
prove: (1) that the defendant's conduct was wanton and reckless, involving extreme
departure from ordinary care in situations where high degree of danger is apparent; (2)
that the danger created by the defendant's conduct threatened or endangered public safety;
(3) that the conduct occurred in the storage, handling or transportation of hazardous or
toxic substances; and (4) that the plaintiff's injury was caused by the defendant's
conduct. **11Billiot v. B.P. Oil Co., 93-1118 (La.9/29/94), 645 So.2d 604; See also
Bourque v. Nan Ya Plastics Corp., America, 906 F.Supp. 348 (M.D.La.1995). For purposes
*1246 of the code section providing for exemplary damages for wanton and reckless
disregard for public safety in storage, handling or transportation of hazardous or toxic
substances, implicit in "storing, handling or transporting" is the requirement that the
hazardous substance be in the possession or control of the person who then handles or
otherwise deals with that substance, though there is no requirement that the defendant be
in possession and control of the hazardous substance at the time of a plaintiff's injury.
In re New Orleans Train Car Leakage Fire Litigation, supra.
The evidence presented at trial revealed that prior to the excavation of the soil, Conoco
performed a Level I site assessment, in which the properties were visual inspected. David
Williams, the Conoco employee in charge of environmental concerns for the LOHC project,
prepared an asbestos investigation report in which he noted that the Level I assessment
revealed the existence of transite on the exterior of two of the abandoned houses on the
site. However, a Level II assessment, which involves collecting samples, was not
performed. According to Mr. Williams, who had no experience with asbestos or any asbestosrelated training, the Level II assessment was not performed because it was not required by
law. Furthermore, despite Conoco's policy that soil samples must be taken when an area is
excavated and analyzed for hazardous materials, Mr. Williams admitted that he never told
anyone about the presence of asbestos on the site. Rather, haulers were contracted to
haul the soil away, without any indication that the transite was present at the site from
which the soil was taken. In fact, after one of the property owners discovered the
transite on his property, it was DEQ which notified Conoco that hazardous material had
been found in the soil from the LOHC project site.
Additionally, one of Conoco's own witnesses, Mr. Coltrin, testified that an **12 owner of
a hazardous substance is responsible for that substance "from the cradle to the grave."
He explained that this meant if Conoco owned the asbestos-containing material from the
time it acquired it until it was properly disposed of at the appropriate landfill.
Based on the foregoing, I believe that the trial court's conclusion that Conoco's
handling of the asbestos-containing material was wanton and reckless was not clearly
wrong. Not only did Conoco fail to hire someone knowledgeable about asbestos to
coordinate the project site, the employee in charge of doing so took no action after he
discovered the presence of asbestos on the site. He did not have the soil tested, nor did
he take any action to find out what to do about the transite, despite his testimony about
the availability of "much more qualified people in the field of asbestos that work for
Conoco." Furthermore, the employee failed to take any steps to prevent the soil from
being disseminated into the public when he failed to inform the haulers of the soil that
it contained asbestos.
837 So.2d 1219
(Cite as: 837 So.2d 1219, 2001-2767 (La. 1/28/03))
Page 28
I would also find that the actions of Conoco and its employee were reckless and
endangered public safety. Despite knowledge that the soil contained pieces of transite,
Conoco contracted with independent contractors to haul the soil without informing them
that the soil was contaminated and without regard for where this soil could eventually end
up. The soil ended up on the lawns of homeowners, who performed everyday activities,
unknowingly endangering their own safety, as well as that of anyone who might visit them.
Next, I believe that the record supports the conclusion that the conduct occurred in the
storage and/or handling of the transite. *1247 It is clear that Conoco knew that at least
two of the houses scheduled for demolition contained transite. The company took no steps
to ascertain whether any of the transite was contained in the soil from the site. It
merely kept the soil at the site, while negotiating with haulers to transport the soil
**13 from the premises. Accordingly, I would affirm the trial court's award of punitive
damage.
CONCLUSION
For the foregoing reasons, I would affirm the trial court's award of damages for
increased risk of developing asbestos-related cancer, mental anguish, punitive damages,
and diminished property value.
837 So.2d 1219, 2001-2767 (La. 1/28/03)
END OF DOCUMENT
141 F.Supp.2d 554
56 Fed. R. Evid. Serv. 1317
(Cite as: 141 F.Supp.2d 554)
Page 1
United States District Court,
D. Maryland.
Robert V. ADAMS, et al. Plaintiffs
v.
NVR HOMES, INC., t/a Ryan Homes, et al. Defendants
No. CIV H-99-846.
April 30, 2001.
Purchasers of homes built over former sand quarry sued builder after they discovered
methane gas seepage caused by organic fill. The District Court, 135 F.Supp.2d 675, Harvey,
Senior District Judge, granted summary judgment for builder on claims other than negligent
misrepresentation. Parties filed various pretrial motions in limine. The Court held that:
(1) evidence of purchasers' arrests, infidelity, and abortions was inadmissible in
liability phase; (2) environmental engineer could not testify for builder during liability
phase concerning builder's reasonable remediation efforts; (3) environmental engineer
could not testify as to duration of purchasers' "window of anxiety"; (4) federal and state
environmental investigations undertaken after methane was discovered, offered by builder,
were inadmissible in liability phase; (5) evidence of children's injuries was
inadmissible; (6) mapping scientist's expert testimony proffered by purchasers was
irrelevant and unreliable; (7) real estate appraiser's forecast of length of impairment to
homes' value was admissible; (8) psychiatrist's epidemiological opinion testimony was
admissible; and (9) psychiatrist could testify as to duration of "window of anxiety."
Ordered accordingly.
West Headnotes
[1] Federal Civil Procedure
170Ak2011 Most Cited Cases
2011
Ruling on motion in limine is no more than preliminary or advisory opinion that falls
entirely within discretion of district court.
2011
Primary purpose of in limine ruling is to streamline case for trial and to provide
guidance to counsel regarding evidentiary issues.
[3] Evidence
146
Undue prejudice requiring exclusion of relevant evidence is found only if there is genuine
risk that emotions of jury will be excited to irrational behavior, and this risk is
disproportionate to probative value of offered evidence. Fed.Rules Evid.Rule 403, 28
U.S.C.A.
[4] Damages
178
[4] Fraud
52
Evidence of homeowners' alleged arrests, infidelity, abortions, and childhood sexual abuse
141 F.Supp.2d 554
Page 2
experiences, offered by defendant builder in owners' negligent misrepresentation action
arising from methane seepage into homes, was irrelevant in liability phase; decision on
admissibility in damages phase, in which owners would seek to show emotional injuries
including sexual dysfunction, would be made prior to that phase. Fed.Rules Evid.Rule 403,
28 U.S.C.A.
[5] Evidence
512
Environmental engineer/expert witness for builder, in homeowners' action against builder
arising from methane seepage into homes and alleging negligent misrepresentations prior to
sale, could not testify during liability phase concerning builder's reasonable remediation
efforts or hazardousness of methane levels detected; however, proposed testimony was
relevant to damages phase. Fed.Rules Evid.Rule 40328 U.S.C.A.
[6] Evidence
537
Environmental engineer/expert witness for builder, in homeowners' negligent
misrepresentation action against builder arising from methane seepage into homes and
seeking emotional distress damages, could not testify as to duration of owners' "window of
anxiety"; expert was not psychologist or psychiatrist, and could testify only to nature
and reasonableness of builder's remedial efforts, from which builder's counsel could argue
that "window" was short. Fed.Rules Evid.Rule 403, 28 U.S.C.A.
[7] Fraud
52
[7] Fraud
57
Results of federal and state environmental investigations undertaken after methane seepage
was discovered in homes, to be offered by builder in homeowners' action alleging negligent
misrepresentations prior to sale, were inadmissible in liability phase, but relevant to
damages phase; however, results would have to accurately quoted, rather than characterized
as, e.g., showing "safety" of homes. Fed.Rules Evid.Rules 103(c), 403, 28 U.S.C.A.
170Ak1636.1 Most Cited Cases
1636.1
Homeowners' record of methane detector readings, in owners' negligent misrepresentation
action against builder arising from methane seepage into homes, was inadmissible where
record had been mistakenly withheld during discovery as privileged attorney work product,
then disclosed only days before close of discovery. Fed.Rules Civ.Proc.Rule 37(c)(1), 28
U.S.C.A.
[9] Fraud
57
Evidence of homeowners' children's school performance problems and other injuries
allegedly due to methane exposure was inadmissible in owners' negligent misrepresentation
action against builder; children themselves had not purchased homes from builder, no
representations had been made to children, and all evidence of children's injuries would
come from owners, not psychiatric experts, physicians, or teachers. Fed.Rules Evid.Rule
403, 28 U.S.C.A.
141 F.Supp.2d 554
Page 3
[10] Evidence
508
[10] Evidence
555.2
In determining admissibility of expert testimony under Daubert, court first makes
essentially a reliability inquiry and determines whether proffered testimony consists of
scientific knowledge; court then inquires further to ascertain whether proposed testimony
is relevant, i.e., will assist trier of fact. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
[11] Evidence
555.2
Factors in making reliability determination as to proffered expert testimony under Daubert
include: (1) whether theory or technique used by expert can be, and has been, tested; (2)
whether theory or technique has been subjected to peer review and publication; (3) known
or potential rate of error of method used; and (4) degree of method's or conclusion's
acceptance within relevant scientific community. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
[12] Evidence
527
[12] Evidence
555.5
Expert testimony by mapping scientist, proffered by homeowners in their negligent
misrepresentation action against builder alleging that organic fill in former sand quarry
beneath homes caused methane seepage into homes, failed to satisfy relevance and
reliability requirements of Daubert and thus was inadmissible; scientist was unable
without stereographic photographs, which had not been made, to determine what areas had
been excavated and contained fill. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
[13] Evidence
555.6(2)
Expert testimony by real estate appraiser, offered by homeowners to show likely length of
time that methane seepage into homes from organic fill in former sand quarry beneath homes
would cause homes' value to be impaired, was admissible in owners' negligent
misrepresentation action against builder, even though it contained inherently subjective
element; testimony was grounded in appraiser's experience and thus satisfied Daubert
reliability criterion. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
[14] Evidence
555.10
[14] Evidence
557
Epidemiological opinion testimony by psychiatrist, offered by homeowners to show emotional
distress from methane seepage into homes, was admissible in owners' negligent
misrepresentation action against builder, even though studies underlying opinions
consisted partly of group analyses; expert derived individual "index of distress" for each
resident studied, and owners would have to establish individual damages during trial.
Fed.Rules Evid.Rules 403, 702, 28 U.S.C.A.
[15] Evidence
532
141 F.Supp.2d 554
Page 4
Psychiatrist/expert witness for homeowners, in owners' negligent misrepresentation action
against builder arising from methane seepage into homes and seeking emotional distress
damages, could testify that owners' "window of anxiety" continued beyond date when
remediation efforts were completed; court would not automatically exclude any evidence of
distress beyond that date. Fed.Rules Evid.Rule 702, 28 U.S.C.A.
*557 Pamela D. Marks, Robert Brager, Mark A. Turco, Baltimore, MD, Beveridge & Diamond,
PC, Monica La Polt, Law Office, Baltimore, MD, Benjamin F. Wilson, Beveridge and Diamond
PC, Washington, DC, for Plaintiffs.
Steven A. Allen, Hodes Ulman Pessin and Kate PA, Arnold M. Weiner, Weltchek, et al.,
Baltimore, MD, Randall M. Lutz, Hodes Ulman Pessin and Katz PA, Towson, MD, Beverly Ann
Turk, Law Office, Baltimore, MD, Susan M. Souder, Law Office of Susan Souder PA,
Catonsville, MD, Mark H. Kolman, Dickstein Shapiro Morina and Oshinsky LLP, Washington,
DC, Robert William Pommer, III, Dickstein, Shapiro, Morin & Oshinsky, Washington, DC,
Edward E. Sharkey, Law Office, Baltimore, MD, John Agar, Law Office, Washington, DC,
Howard G. Goldberg, Goldberg, Pike & Beschee, Baltimore, MD, Sharon K. Engelhard, Goldberg
Pike and Besche PC, Baltimore, MD, Andrew D. Levy, Dana Whitehead McKee, Brown Goldstein
and Levy LLP, Baltimore, MD, Richard L. Nilsson, Brizendine, Berge & Tripoda, Timonium,
MD, Terrence Michael McShane, Lee & McShane, PC, Washington, DC, Laurence C. Fauth, Law
Office, Washington, DC, for Defendants.
MEMORANDUM AND ORDER
HARVEY, Senior District Judge.
This civil action is scheduled for a jury trial to commence on May 7, 2001.
Presently
pending before the Court are the following motions in limine:
(1) Plaintiffs' motion in limine to exclude irrelevant and unduly prejudicial
information;
(2) Plaintiffs' motion in limine to exclude Ryan's expert witness Jack Matson;
(3) Plaintiffs' motion in limine concerning statements before the jury;
(4) The Ryan Defendants' motion in limine to exclude evidence which has not been
produced in discovery;
(5) The Ryan Defendants' motion in limine to exclude testimony of plaintiffs' experts;
(6) The Ryan Defendants' motion in limine to exclude or limit the expert testimony of
plaintiffs' expert Dr. Paul McHugh; and
(7) The Ryan Defendants' motion in limine to preclude plaintiffs from making arguments
or presenting evidence contrary to the undisputed facts as determined by the Court in
its Memorandum and Order of March 22, 2001.
At the pretrial conference held on April 6, 2001, a schedule was set by the Court for the
briefing of these pending motions.
*558 Memoranda and exhibits in support of and in
opposition to these motions have been filed by the parties and reviewed by the Court.
No
hearing is necessary.
See Local Rule 105.6.
Following its review of the parties'
submissions, the Court has concluded that one of the motions should be denied and that the
other motions should be granted in part and denied in part.
I
Applicable Principles
[1][2] A ruling on a motion in limine is no more than a preliminary or advisory opinion
that falls entirely within the discretion of the district court. United States v.
Yannott, 42 F.3d 999, 1007 (6th Cir.1994).
The primary purpose of an in limine ruling is
to streamline the case for trial and to provide guidance to counsel regarding evidentiary
141 F.Supp.2d 554
Page 5
issues. United States v. Luce, 713 F.2d 1236, 1239 (6th Cir.1983), aff'd 469 U.S. 38, 105
S.Ct. 460, 83 L.Ed.2d 443 (1984).
In seeking to exclude evidence which the other side proposes to introduce at the trial,
each side in this case has relied on Rule 403, F.R.E. In its entirety, Rule 403 provides
as follows:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
[3] The decision to exclude relevant evidence pursuant to Rule 403 is committed to the
sound discretion of the trial court. United States v. Love, 134 F.3d 595, 603 (4th
Cir.1998); Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1199 (4th Cir.1982).
In its
consideration of issues presented by Rule 403, the Fourth Circuit has indicated that it
"generally favor[s] admissibility, and will find undue prejudice only if there is a
'genuine risk that the emotions of a jury will be excited to irrational behavior, and this
risk is disproportionate to the probative value of the offered evidence.' " United States
v. Wells, 163 F.3d 889, 896 (4th Cir.1998) (quoting United States v. Bailey, 990 F.2d 119,
123 (4th Cir.1993)).
If evidence is probative, "the balance under Rule 403 should be
struck in favor of admissibility, and evidence should be excluded only sparingly." United
States v. Aramony, 88 F.3d 1369, 1378 (4th Cir.1996).
II
Plaintiffs' Motions
(a)
Plaintiffs' Motion In Limine To Exclude Irrelevant and Unduly Prejudicial
Information
[4] Relying on Rules 402 and 403, F.R.E., plaintiffs have moved for the entry of an Order
excluding the following evidence at the trial: (1) testimony regarding any arrests of
plaintiffs; (2) testimony regarding any allegations of infidelity by any one of the
plaintiffs; (3) testimony regarding any acts of childhood sexual abuse visited upon a
plaintiff; and (4) testimony regarding any abortions undergone by plaintiffs.
According
to plaintiffs, these traumas occurred long ago, and the prejudicial impact of the evidence
outweighs its limited probative value.
Responding to this motion, the Ryan Defendants contend that the evidence in question is
admissible since it is relevant to plaintiffs' claims that they have suffered emotional
and psychological injuries as a result of defendants' allegedly wrongful conduct.
The
Ryan Defendants maintain that the testimony which plaintiffs seek to exclude has a direct
bearing on plaintiffs' mental and emotional state.
Defendants *559 argue that the
probative value of the evidence is not substantially outweighed by the other factors set
forth in Rule 403.
Pursuant to the Order of Bifurcation entered by the Court, Phase I of the trial will not
involve consideration by the jury of the damages issues. Clearly, the evidence which
plaintiffs seek to exclude may not be used by counsel for the Ryan Defendants in
cross-examining any one of the plaintiffs following his or her direct testimony during
Phase I of the trial.
Moreover, counsel for Defendants may not mention the evidence in
question either during counsel's opening statement at the outset of Phase I or during
counsel's opening statement at the outset of Phase II.
Whether or not this evidence can be presented after a plaintiff has testified during
Phase II of the trial will not be determined by the Court until after that plaintiff has
presented testimony concerning the emotional damages which he or she has sustained.
At
141 F.Supp.2d 554
Page 6
that time, the Court will consider out of the presence of the jury Defendants' proffer
concerning the expected cross- examination of that plaintiff.
The Court will then apply
the principles of Rule 403 and will weigh the prejudicial effect of the evidence against
other pertinent factors.
Several plaintiffs will apparently claim at the trial that their sexual life has been
disrupted as a result of the wrongful conduct of the Ryan Defendants. Evidence of a male
plaintiff's impotence, evidence of spousal infidelity, evidence of childhood sexual abuse
visited upon a female plaintiff and evidence of a spouse's alcoholism may or may not be
admissible under Rule 403 at Phase II of the trial, depending upon the direct testimony of
that particular plaintiff.
It is doubtful that evidence of arrests will satisfy the
requirements of Rule 403, but this question also must await presentation during Phase II
of the trial of the direct testimony of the plaintiff who was arrested.
(b)
Plaintiffs' Motion in Limine to Exclude Ryan's Expert Witness Dr. Jack Matson
[5] Plaintiffs seek to exclude entirely any opinion testimony of Dr. Jack Matson, Ph.D.,
an expert witness of the Ryan Defendants, on grounds that the proffered testimony is
irrelevant and unreliable.
It is argued that this Court's March 22, 2001 Memorandum and
Order has rendered the proposed testimony of Dr. Matson irrelevant under Rules 401 and
402.
In addition, plaintiffs claim that the opinions offered by Dr. Matson do not meet
the requirements for admissibility under Rule 702, and do not meet the standards for the
reliability of expert testimony set forth by the Supreme Court in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); General Electric Co.
v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); and Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
After methane was discovered at Calvert Ridge in September 1998, Dr. Matson was engaged
by the Ryan Defendants upon the recommendation of a Howard County government official.
[FN1] On behalf of the Ryan Defendants, Dr. Matson reviewed the situation at Calvert
Ridge and participated in *560 efforts to remediate the site.
Pursuant to Rule 26(a)(2),
F.R.Civ.P., Dr. Matson prepared an expert report which expressed three primary opinions as
follows:
FN1. Dr. Matson is a professor of environmental engineering at Pennsylvania State
University.
He has a B.S. and M.S. in chemical engineering and a Ph.D. in
environmental engineering.
Dr. Matson has testified as an expert witness in
numerous courts throughout the country, and he has authored many publications,
including Effective Expert Witnessing, (3rd ed.1999).
Opinion 1
Ryan Homes exercised reasonable and prudent care in response to the discovery of methane
gas in the Calvert Ridge subdivision.
Opinion 2
The methane gas initially detected would not have created an explosive hazard, and it
will not be a threat in the future.
Opinion 3
Plaintiffs' experts do not support their opinions with facts and data to show there is a
health and safety concern at Calvert Ridge.
Matson Report at 1. [FN2] These three opinions are based upon documents supplied by
counsel, peer reviewed scientific literature, reports of plaintiffs' experts and Dr.
Matson's own education and experience. Id. at 1.
FN2. At his deposition, Dr. Matson stated that his expert report contains at least
two corollaries to these opinions: (1) "On-site soil and gas sampling results
141 F.Supp.2d 554
Page 7
indicate no health and safety threat from toxics or methane at Calvert Ridge," and
(2) "Overall, the gas detectors tested by Brook in the homes did alarm below 25% LEL
... [and] a significant number had much greater sensitivities than specified, which
may account for alarm activations in the absence of [Howard County Fire Department]
verifications."
Matson Report at 14-15.
After considering the parties' arguments, the Court concludes that Dr. Matson may not
testify during Phase I of the trial.
As indicated by the Court's Order of Bifurcation,
the issues to be presented to the jury are whether the Ryan Defendants made negligent
misrepresentations to one or more of the plaintiffs and whether the Ryan Defendants acted
negligently in their sale of homes to one or more of the plaintiffs.
Dr. Matson's
opinion that defendants exercised reasonable and prudent care in response to the discovery
of methane gas in the Calvert Ridge subdivision is not relevant to the liability
determinations which the jury will be asked to make in Phase I of the trial. At issue is
the conduct of the Ryan Defendants before homes were sold to the plaintiffs.
Dr. Matson
has no expertise with respect to how a subdivision should be developed when built over a
reclaimed quarry.
The expert testimony proffered in support of Dr. Matson's Opinion 1 is
relevant only to the standard of care for remediating a site after contamination has been
discovered but is not relevant to acts and statements of the Ryan Defendants before
construction even began.
Accordingly, the Court concludes that the testimony in question
is irrelevant and may not be presented during Phase I of the trial, inasmuch as that
testimony does not shed light on the standard of care to be followed by a professional
builder during the process of developing and selling residential dwellings in a
subdivision.
However, Dr. Matson may testify in support of his Opinion 1 at Phase II of
the trial.
With reference to Dr. Matson's Opinion 3, plaintiffs have now indicated that they do not
intend to offer the expert testimony of Dr. Kester and Dr. Libicki during Phase I of the
trial. [FN3] Evidence will apparently not be presented by plaintiffs relating to any
health and safety risks posed by the presence of methane-generating material at Calvert
Ridge before the homes were purchased.
There is accordingly no need *561 for Dr. Matson
to present his Opinion 3 during Phase I. Since Dr. Kester and Dr. Libicki will not be
testifying, there would be no relevancy to Dr. Matson's testimony that facts and data do
not support the opinions of these two experts that health and safety concerns existed at
Calvert Ridge.
FN3. Plaintiffs assert that the testimony of Dr. Kester and Dr. Libicki would be
presented only if Dr. Matson were to testify during Phase I and if it was then
necessary to rebut his expert opinion.
Nevertheless, the Court has concluded that Dr. Matson would be entitled to testify during
Phase II of the trial.
During Phase II, he may present testimony in support of his
Opinion 2 and testify that the methane gas detected in September of 1998 and thereafter
remediated would not thereafter have created an explosion hazard and that it would not be
a threat in the future. His opinions would be germane to establishing the reasonableness
and duration of the plaintiffs' claims that they sustained emotional injuries.
At Phase
II of the trial, Dr. Matson may present his expert opinion concerning the generation and
mitigation of methane gas at Calvert Ridge and his knowledge of related facts, including
any information communicated to plaintiffs concerning the success of the remediation
efforts undertaken by the Ryan Defendants.
He may also testify at Phase II that any
methane which existed in the vicinity of plaintiffs' homes is emanating from land owned by
the Brantly Defendants and that any injuries sustained by plaintiffs were therefore
proximately caused by conduct of the Brantly Defendants.
[6] However, Dr. Matson may not render an opinion concerning the duration of plaintiffs'
reasonable "window of anxiety," as discussed by the Court of Appeals of Maryland in Faya
141 F.Supp.2d 554
Page 8
v. Almaraz, 329 Md. 435, 455-56, 620 A.2d 327 (1993).
Dr. Matson is not a psychologist
nor a psychiatrist and is not qualified to offer an expert opinion as to any aspect of
plaintiffs's mental condition.
Based on Dr. Matson's testimony concerning the nature,
extent, reasonableness and effectiveness of defendants' remedial efforts undertaken after
September of 1998, counsel for the defendants may argue to the jury that the "window of
anxiety" was a short one.
However, no opinion as to the duration of this period of time
may be presented by Dr. Matson.
Whether or not injury after a certain date "became
extremely unlikely and thus, as a matter of law, might be deemed unreasonable," Faya, 329
Md. at 455, 620 A.2d 327, is a question which the parties may raise with the Court after
all relevant evidence has been presented.
There is no merit to plaintiffs' contention that Dr. Matson's testimony during Phase II
of the trial should be excluded under Daubert and its progeny. The Court is satisfied
that Dr. Matson is well qualified to render the opinions proffered by him and that the
scientific testimony to be presented by him is both relevant and reliable.
The Court
concludes that the testimony to be presented by Dr. Matson at Phase II of the trial will,
pursuant to Rule 702, assist the trier of fact.
For these reasons, plaintiffs' motion in limine to exclude the testimony of Dr. Jack
Matson will be granted in part and denied in part.
(c)
Plaintiffs' Motion in Limine Concerning Statements Before the Jury
[7] Plaintiffs have also moved the Court to enter an Order prohibiting counsel or
non-governmental witnesses from making assertions in the presence of the jury about
governmental determinations as to whether Calvert Ridge is a safe place to live.
Relying
on Rule 103(c), F.R.E., plaintiffs seek the entry of an Order prohibiting counsel or
non-governmental witnesses from asserting in the presence of the jury that the United
States Environmental *562 Protection Agency (the "EPA"), the Maryland Department of the
Environment (the "MDE") and the Howard County government have all concluded that Calvert
Ridge is a safe place to live.
According to plaintiffs, none of these governmental
agencies has ever opined that Calvert Ridge is a safe place to live.
In response, the Ryan Defendants contend that they should be permitted to introduce
evidence pertaining to investigations made by the MDE and the EPA, as well as evidence
pertaining to the determinations made by these agencies as to the condition of the Calvert
Ridge properties.
According to the Ryan Defendants, the evidence in question is relevant
to both liability and damages issues in this case.
The investigations in question were undertaken after methane was detected in the Calvert
Ridge subdivision in September of 1998.
The evidence in question therefore may not be
presented during Phase I of the trial.
However, this evidence is relevant to the damages
issues presented and it may be introduced by the Ryan Defendants during Phase II of the
trial.
Although evidence pertaining to the MDE and EPA investigations and determinations is
relevant and admissible during Phase II, the actual contents of reports made by these
agencies should be accurately characterized by counsel for the Ryan Defendants.
None of
these reports state that Calvert Ridge is a "safe place to live."
Some of the reports
state that "hazardous waste" or "hazardous substances" were not found at the site.
In
referring to these reports, counsel for the Defendants should accurately quote the precise
language used.
However, counsel would thereafter be permitted to argue by inference that
these government agencies concluded that Calvert Ridge was a safe place to live.
Counsel
for plaintiffs in turn would then be permitted to challenge that argument and contend that
no such conclusion was ever reached by the agencies in question.
141 F.Supp.2d 554
Page 9
III
Motions of the Ryan Defendants
(a)
The Ryan Defendants' Motion to Exclude Evidence which has not been Produced in
Discovery
The Ryan Defendants have moved for the entry of an Order excluding from presentation at
the trial the following evidence which they claim was not produced in discovery: (1) the
so-called Angeletti documents; (2) evidence relating to any alleged injuries or damages
suffered by plaintiffs' minor children; and (3) evidence not produced during discovery
relating to other alleged injuries or damages.
(i)
Angeletti Documents
[8] Donald and Kathleen Angeletti are plaintiffs in this action. According to the Ryan
Defendants, two documents exist which relate to the alleged detection of methane in the
Angeletti's house during the period from July 2, 1999 to August 28, 1999.
One or more of
these documents indicates that the Angelettis used a private digital meter which detected
methane in their house during the July-August, 1999 period.
Information relating to the
use of this digital reader was provided by Kathleen Angeletti during her deposition which
was taken on October 2, 2000.
However, copies of certain documents mentioned by her in
her deposition were not produced at the time, but were withheld on the ground that they
were privileged.
Later, during the deposition of James Chan on December 21, 2000 (merely
nine days before the close of discovery), counsel for plaintiffs *563 showed counsel for
the Ryan Defendants the notes in question which had previously been withheld as
privileged.
The Ryan Defendants argue that the documents in question should not have been withheld in
October, 2000 and that, when they were finally produced, it was too late to question other
witnesses and experts about them.
Relying on Rule 37(c)(1), the Ryan Defendants argue
that the documents in question should be excluded as evidence to be presented at the
trial.
This Court would agree.
Ms. Marks, one of plaintiffs' attorneys, asked the Angelettis in June of 1999 to place in
their basement a methane monitor with a digital display.
She requested at the time that
Kathleen Angeletti maintain a record or log of the meter's readings.
The log was marked
"Attorney-Client Work Product." [FN4] Although she segregated the log from materials
produced to the Defendants, she forgot about its existence.
When Mrs. Angeletti's
deposition was taken on October 2, 2000, Mr. Brager, a partner of Ms. Marks, was at the
time unaware of the existence of both the digital meter and the log.
It was not until
December 21, 2000 that the log in question was produced.
FN4. No privilege log was provided at the time to counsel for the Defendants as
required by Rule 26(b)(5).
Under the circumstances here, the Court will exclude the documents in question which
should have been produced during the deposition of Mrs. Angeletti on October 2, 2000.
Indeed, plaintiffs now concede that the log itself was not privileged, and they have
belatedly produced it.
The Ryan Defendants should not be prejudiced by the forgetfulness
of Ms. Marks when the log was first provided to her by Mrs. Angeletti, nor by the fact
that Ms. Marks and Mr. Brager did not communicate with each other concerning the existence
of either the digital meter or the log prior to the taking of Mrs. Angeletti's deposition.
Counsel for the Ryan Defendants had the right to have the log produced at an early stage
of the case so that they and their experts could have reviewed its contents and so that
they and their experts would have been in a better position to challenge plaintiffs'
witnesses who might testify at the trial concerning the contents of the log.
141 F.Supp.2d 554
Page 10
(ii)
Damages Claimed by Plaintiffs' Minor Children
[9] The Ryan Defendants further contend that plaintiffs should not be permitted to
introduce at the trial any evidence relating to any alleged injuries or damages suffered
by the plaintiffs' minor children.
According to the Ryan Defendants, such evidence
should be excluded because it was not produced during discovery in this case.
The Court
would agree that plaintiffs' minor children are not entitled to recover damages in this
case, not because discovery as to such damages has not been provided, but because
plaintiffs have not presented competent evidence that their minor children have been
injured as a result of the Ryan Defendants' negligence.
In their opposition to this
motion in limine of the Ryan Defendants, plaintiffs refer to their responses to
defendants' interrogatories and to the deposition testimony of plaintiffs taken in this
case.
In their answers to interrogatories and in depositions, plaintiffs indicate that
they are seeking to recover in this case damages for emotional harm suffered by their
children.
The evidence in question includes the following subjects: (1) children's
activities impeded during their play *564 in yards and in basements; (2) distractibility,
nervousness and sleeping problems of children; (3) disruption of children's performance
in school; (4) reactions of children at birthday parties when the Fire Department
responded to methane alarms; and (5) nightmares and migraine headaches suffered by
certain children.
On the record here, this Court concludes that all of this evidence
must be excluded.
Although children of some of the plaintiffs were named as additional plaintiffs in this
case, the children themselves did not purchase homes from the Ryan Defendants.
No
actionable representations, whether negligent or otherwise, were made by the Ryan
Defendants to plaintiffs' children. Moreover, it is questionable whether the duty of due
care owed by the Ryan Defendants to the adult plaintiffs as the purchasers of homes at
Calvert Ridge was likewise owed to plaintiffs' children.
Whether or not plaintiffs'
children may maintain a claim of negligence against the Ryan Defendants, proof of
emotional damage suffered by them is lacking.
Only the adult plaintiffs are expected to
testify in support of the children's claims of emotional distress.
No psychiatric
experts are being called by plaintiffs to testify about the children's emotional problems.
Plaintiffs have not identified in the Pretrial Order any of the children's physicians or
any mental health professionals or school teachers who will be called to testify in this
case in support of damages claimed by the children.
None of the children themselves will
be testifying.
Under the circumstances, the Court is satisfied that the adult plaintiffs
must be precluded from testifying concerning any impact which their housing situation
might have had on their minor children.
For these reasons, the Court concludes that plaintiffs will not be permitted to introduce
at the trial any evidence relating to alleged injuries or damages suffered by their minor
children.
(iii)
Other Evidence Not Produced During Discovery
The Ryan Defendants further contend that plaintiffs may attempt to introduce other
factual evidence of damages or injury as to which no discovery has been provided.
They
request that the Court require plaintiffs to proffer factual evidence intended to be
introduced at the trial to support plaintiffs' claims for damages.
That request will be
denied.
Plaintiffs agree that the Court should exclude evidence in the possession of the other
side which was requested and was held back during discovery. However, it is premature for
the Court to attempt to identify each item of evidence which has been questioned and to
141 F.Supp.2d 554
Page 11
decide at this time whether that evidence should be excluded.
At the trial, the parties
may object to the admission of evidence which has not been properly identified and
produced during discovery.
The Court will be in a much better position at that time to
rule on these matters.
(b)
The Ryan Defendants' Motion in Limine To Exclude the Testimony of Plaintiffs'
Experts
By way of this motion, the Ryan Defendants have asked the Court to enter an order
excluding the expert testimony of three of plaintiffs' named experts, namely Janet Kester,
Ph.D., Shari Libicki, Ph.D. and Thomas Jones.
They also ask the Court to limit the
expert testimony of Bernard A. Page, Jr. In support of this motion, the Ryan Defendants
rely on Rules 104(a), 401, 402, 702 and 703, F.R.E. They further contend that the expert
testimony in question is not admissible because the opinions rendered by these experts do
not satisfy the requirements of Daubert, Joiner and Kumho.
*565 [10][11] Daubert requires that when considering the admissibility of an expert
opinion under Rule 702, a federal judge must exercise a "gatekeeping responsibility" to
insure that scientific, technical or other testimony based on specialized knowledge is
both relevant and reliable. 509 U.S. at 589, n. 7, 600, 113 S.Ct. 2786.
Before the Court
can consider expert opinions of the sort relied upon here by plaintiffs, threshold
standards for the admissibility of such evidence must be met.
In performing its
"gatekeeping" task, a district judge must engage in a two-part analysis. United States v.
Dorsey, 45 F.3d 809, 813 (4th Cir.), cert. denied, 515 U.S. 1168, 115 S.Ct. 2631, 132
L.Ed.2d 871 (1995).
The Court must first make essentially a reliability inquiry and
determine whether the proffered expert testimony consists of "scientific knowledge." Id.
Second, the Court must inquire further to ascertain whether the proposed testimony is
relevant, that is, whether under Rule 702 it will "assist the trier of fact." Dorsey, 45
F.3d at 813.
In determining whether scientific expert evidence properly satisfies the
reliability component of the test, the Supreme Court in Daubert held that a trial court
should consider several factors: (1) whether the theory or technique used by the expert
can be, and has been, tested; (2) whether the theory or technique has been subjected to
peer review and publication; (3) the known or potential rate of error of the method used;
and (4) the degree of the method's or conclusion's acceptance within the relevant
scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786; Dorsey, 45 F.3d at
813.
(i)
Dr. Kester and Dr. Libicki
Dr. Kester is a toxicologist and risk assessor who has coauthored guidelines for
evaluating and remediating contaminated sites pursuant to the requirements of certain
federal statutes.
Based upon information provided to her, she has suggested that it is
not possible to conclude that Calvert Ridge is a safe place to live.
She has
characterized the conditions at Calvert Ridge as an immediate and short term threat to
human health, safety or sensitive environmental receptors because of the existence of
methane gas in the soil.
Dr. Libicki is a chemical engineer who has proffered testimony
that the concentration of methane gas found in soil in and near plaintiffs' yards presents
a risk of explosion and fire.
Her testimony discusses how buried organic waste can
generate methane gas which can travel through the ground into the homes of Calvert Ridge
families.
According to Dr. Libicki, once methane is accumulated inside a house and mixed
with oxygen, a spark can ignite gases which are at concentrations above the lower
explosive limits.
In responding to this motion in limine of the Ryan Defendants, plaintiffs have agreed not
141 F.Supp.2d 554
Page 12
to call Dr. Kester and Dr. Libicki as expert witnesses during either Phase I or Phase II
of the trial.
They have, however, reserved the right to present the testimony of these
experts as rebuttal witnesses.
The Court will not at this time rule on the admissibility of the testimony of Dr. Kester
and Dr. Libicki if called as a part of plaintiffs' rebuttal case. There are many factors
which must be considered before this Court will permit plaintiffs to present evidence by
way of rebuttal to evidence presented by the Ryan Defendants in either Phase I or Phase II
of the trial.
If the plaintiffs intend to call either Dr. Kester or Dr. Libicki as
rebuttal witnesses and if the Court permits them to do so, the *566 Ryan Defendants may at
that time present objections to the admissibility of that testimony based on the Federal
Rules of Evidence or on Daubert principles.
Rulings on any such objections will be made
during the trial itself.
(ii)
Jones
[12] Thomas Jones has been identified by plaintiffs as a certified mapping scientist.
In the Pretrial Order, Jones has not been listed as an expert who will necessarily be
called to testify by the plaintiffs.
Instead, both the expert testimony of Jones and his
report [FN5] have been identified for use only as the need arises.
FN5. According to his deposition testimony, Jones himself did not prepare the expert
report produced by him in discovery.
This report was written by Pamela Marks,
Esq., one of plaintiffs' attorneys, and was then sent to him for review.
Jones reviewed aerial photographs of the Calvert Ridge site which had been taken between
1964 and 1998 in order to determine when and where there had been a "disturbance" or
"disruption of normal surface cover."
Since, as he testified at his deposition, a
disturbance could be created by many innocuous activities such as cutting down trees and
pulling up grass, Jones was unable to determine which of the plaintiffs' lots were located
over an area which had previously been mined for sand and gravel nor could he express an
opinion as to what areas had been excavated and as to what areas contained fill material.
Jones further testified at his deposition that in order to do a really complete analysis
of the site, he would need to look at some stereographic photos. However, he did not
utilize this technique.
According to Jones, stereographic photography would have enabled
him to see objects in three dimensions and therefore be able to see depths and heights and
to recognize features which would not necessarily be recognized by one looking at
monoscopic photographs.
Following its review of Jones' deposition testimony, this Court concludes that it does
not satisfy either the relevance component or the reliability component of the Daubert
test.
Jones was unable to determine which of the plaintiffs' lots were located over the
area that had been previously mined for sand and gravel.
He could not even express an
opinion as to what areas had been excavated and what areas contained fill material. Since
plaintiffs' claims are predicated upon the existence of a quarry and not upon the
existence of general areas of "disturbance," the proffered testimony of Jones is
irrelevant under Rule 702.
It is not likely to assist the trier of fact to understand or
determine a fact in issue.
See Daubert, 509 U.S. at 592, 113 S.Ct. 2786.
Moreover, Jones' proffered testimony also fails to meet the reliability factors
established by Daubert and its progeny.
In his deposition, Jones admitted that to do a
really complete analysis of the site, he would need to look at stereographic photographs.
As he testified, stereographic photography would have enabled him to see objects in three
dimensions and be able to recognize features which could not be recognized by looking at
ordinary photographs.
Since Jones did not employ stereographic photography, he has not
141 F.Supp.2d 554
Page 13
utilized generally accepted scientific methodology, and his expert testimony is therefore
not admissible under Rule 702. Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th
Cir.1998); see also Cavallo v. Star Enterprise, 892 F.Supp. 756, 760-61 (E.D.Va.1995),
aff'd in part, 100 F.3d 1150, 1159 (4th Cir.1996).
For these reasons, the Court will grant the motion in limine of the Ryan Defendants *567
as to the proffered expert opinions of Thomas Jones.
(iii)
Page
[13] Bernard Page, Jr. is an experienced and certified real estate appraiser who
performed appraisals of the value of plaintiffs' homes. As to each plaintiff family, he
expressed four general opinions, including (1) the current unimpaired value of their home;
(2) the current impaired value of their home; (3) the length of time that the value of
the home would be impaired; and (4) the potential relocation costs of each family.
Page's expert testimony will be presented during Phase II of the trial.
In their motion in limine, the Ryan Defendants seek to exclude only the testimony of Page
relating to his opinion as to the length of time that the value of plaintiffs' homes will
be impaired.
In his report, Page concluded that the stigma associated with plaintiffs'
homes "could last ten or perhaps more than ten years."
This opinion is derived from
Page's application of several factors, including his experience, his examination of other
residential properties in Maryland in which perceived environmental problems have been
reported to the public, and his review of the expert reports of Dr. Kester, Dr. Libicki
and Raymond DeStephen.
According to the Ryan Defendants, Page's subjective conjecture as
to the period of time into the future that the value of plaintiffs' homes will be impaired
due to the stigma of being located in Calvert Ridge does not satisfy the standards of
Daubert and Kumho.
After considering the parties' arguments, this Court will not limit the expert opinion to
be rendered by Page at the trial in the manner suggested by the Ryan Defendants.
The
Court is satisfied that the opinion in question is grounded upon " 'a reliable basis in
the knowledge and experience in the discipline.' " Kumho, 526 U.S. at 149, 119 S.Ct. 1167
(quoting Daubert, 509 U.S. at 592, 113 S.Ct. 2786).
Although Daubert commands that in
court science must do the speaking and not merely the scientist, see Cavallo, 892 F.Supp.
at 761, the discipline of real estate appraisal is not essentially scientific.
Some
aspects of Page's expert testimony are therefore inherently subjective and less
susceptible to objective and independent validation.
On the record here, this Court is
satisfied that there is a reliable and reasonable nexus between Page's expert testimony
and the underlying data.
Some of Page's data may be questioned because it is derived from the expert reports of
Dr. Kester and Dr. Libicki which suggest that plaintiffs are presently at risk because of
the existence of methane in the soil.
Defendants also contend that Page has little or no
first-hand experience in evaluating stigma arising as a result of negative publicity due
to environmental contamination.
However, considerations of this sort go to the weight
and not to the admissibility of Page's testimony.
Page's opinions are based on other
reliable information such as facts pertaining to other properties which have suffered a
long-term diminution in value as a result of the stigma associated with environmental
contamination.
Even though evidence may not exist as to any present danger to plaintiffs
posed by the possible existence of methane gas in the vicinity of their homes, negative
publicity about Calvert Ridge is a reliable factor which might lead to a decrease in the
value of plaintiffs' homes.
Accordingly, the Court has concluded that Page's ten-year
projection for the time needed for plaintiffs' homes to return to their full market value
is admissible testimony.
141 F.Supp.2d 554
Page 14
For these reasons, the Ryan Defendants' motion in limine will be denied as to the expert
opinions of Bernard Page.
*568 (c)
The Ryan Defendants' Motion in Limine To Exclude or Limit the Expert Testimony
of Plaintiffs' Expert Dr. Paul McHugh
[14] The Ryan Defendants have also filed a motion in limine seeking to exclude or limit
the expert testimony of Dr. Paul McHugh.
Dr. McHugh is being called to testify during
Phase II of the trial concerning the emotional damages sustained by the plaintiffs.
Plaintiffs propose to offer the testimony of Dr. McHugh as a psychiatric expert to prove
that each of them has suffered emotional injury and to establish a causal link between the
Calvert Ridge situation and plaintiffs' emotional state.
The Ryan Defendants seek to limit Dr. McHugh's expert testimony in two ways. First, they
ask the Court to exclude any epidemiological opinion evidence on grounds that it is
irrelevant, confusing, prejudicial and will have minimum probative value.
Second,
relying on Faya v. Almaraz, 329 Md. at 455-56, 620 A.2d 327, the Ryan Defendants argue
that any evidence that plaintiffs may have suffered psychological injury after the spring
or summer of 1999 should be excluded as "unreasonable as a matter of law" on the ground
that it does not fall within the plaintiffs' "reasonable window of anxiety."
Since 1975, Dr. McHugh has been Professor of Psychiatry, Psychiatrist- in-Chief and
Director of the Department of Psychiatry at the Johns Hopkins University School of
Medicine and the Johns Hopkins Hospital.
He is a member of numerous professional boards
and has authored more than one hundred papers in the field of psychiatry. Since 1993, Dr.
McHugh has testified as an expert in court in some eleven different cases.
Dr. McHugh, in collaboration with Dr. Paul Romanoski, prepared an expert report (the
"Report") in this case summarizing his findings and the bases for them.
That Report has
been produced pursuant to Rule 26(a)(2).
Dr. Romanoski is an Associate Professor of
psychiatry at both the Johns Hopkins University School of Medicine and its School of
Public Health.
According to the Report, Dr. Romanoski "has extensive training,
experience, and expertise in psychiatric epidemiology--in which the unit under study is a
population rather than an individual, and in the measurement and classification of
psychiatric symptoms."
Report at 1.
The contents of the Report are based upon half-hour clinical interviews with each
plaintiff as well as "two standard assessment questionnaires--the Eysenck Personality
Inventory as a means of estimating aspects of the enduring temperament of the subject, and
the General Health Questionnaire (GHQ) as an external estimate of the subject's recent
emotional state." Id. at 2. According to the deposition testimony of Dr. McHugh, the GHQ
is a reliable and valid measure of psychiatric and psychological distress, which is "a
general term for anxiety, worry, depression, discouragement, demoralization, fear, all of
the imaginable emotional distress states ...." Id. at 45.
Dr. McHugh and Dr. Romanoski together conducted the interviews of each plaintiff which
were described in the Report as "a psychiatric interview ... that systematically reviewed
the family history and 'life story' of each subject from birth through present, the
history of any previous physical or mental disorder and its treatment, pattern of
substance use, and life circumstances." Id. at 2. Based on the interviews, Dr. McHugh
determined that all of the plaintiffs had experienced emotional distress in September 1998
when elevated levels of methane gas were first discovered *569 in three houses at Calvert
Ridge. "This distress took the form of worry--and uncertainty--about financial, safety,
and health implications of the discovery that their family homes were built over a waste
dump." Id. at 3. The Report indicates that the type and degree of distress among the
141 F.Supp.2d 554
Page 15
plaintiffs varied due to their own individual differences as well as due to differences in
the number and frequency of methane alarms sounding in their homes.
After each
interview, Dr. McHugh and Dr. Romanoski discussed "the state of mind of each patient, the
degree of distress" and then "independently decided on an index of distress" before
reviewing the written results from the Eysenck and GHQ assessments.
McHugh Deposition at
77, 118.
The index of distress ("ID") ratings consist of a number between 0 and 4 that
was assigned to each plaintiff.
A score of 0 means "no psychiatric symptoms meeting
threshold" and a score of 4 indicates "symptoms as severe as those found in most patients
presenting for psychiatric treatment."
Report at 6. According to Dr. McHugh's deposition
testimony, the average ID rating for the plaintiffs was 1.52, which translates into a
"minimum amount of symptoms" of distress. Id. at 177.
The scale for the ID ratings was based upon a scale using numbers 1 to 5 which was
originally published in the early 1980s in connection with the Epidemiological Catchment
Area ("ECA") program. Dr. Romanoski worked on the ECA program, which was a national
research study organized by the National Institutes of Health in five cities, including
Baltimore, that attempted to "discern the amount of psychiatric disorder in the
population."
McHugh Dep. at 29.
As part of the study, more than 3,000 people in the
Baltimore area completed written psychological tests, including the GHQ, and underwent
clinical interviews.
Similar to the plaintiffs here, the participants in the ECA program
were assigned an index of distress based upon their interview and the results of their
tests.
Dr. McHugh compared the plaintiffs' ID scores with a "scientifically selected probability
sample of 810 domiciled persons from the general population examined by psychiatrists in
Baltimore in the ECA study."
Report at 6. He found that "the number and severity of
psychiatric symptoms in the Calvert Ridge subjects to be more than twice that found in the
ECA population." Id.
Dr. McHugh and Dr. Romanoski acknowledge in the Report that plaintiffs as individuals
differ "in some particulars of concern and degree of distress." Id. at 6-7.
Nevertheless, they determined that "identical provocation and the similar forms of mental
distress that [plaintiffs] all report identify them as a group afflicted by a general
anxious, depressed state of demoralization and discouragement due to their circumstances."
Id. at 7. Summarizing, the Report concluded that "(1) These subjects have suffered and
continue to suffer significant psychological distress caused by their housing situation;
(2) This affliction is persistent and waxes and wanes; (3) Its resolution depends on the
resolution of the housing situation; and (4) Until this housing situation is resolved, we
anticipate that the affliction will continue." Id.
This Court will not on the record here exclude or limit the expert testimony of Dr.
McHugh.
The Court is satisfied that the epidemiological opinion testimony to be offered
by him is admissible under Rule 403 because its probative value is not substantially
outweighed by the danger of unfair prejudice, confusion of the issues or the misleading of
the jury.
The Ryan Defendants argue that Dr. McHugh's analysis involved the measurement *570 and
classification of psychiatric symptoms for a group and that no single plaintiff is
entitled to a recovery for his or her alleged psychological injury by relying on evidence
that he or she was part of a group which as a whole suffered non-specific, generalized
psychological distress. Undoubtedly, the damages sustained by each individual plaintiff
must be assessed separately.
Indeed, plaintiffs concede that each of them must establish
his or her own injury.
Nevertheless, Dr. McHugh assigned an individual ID to each
plaintiff after personally conducting an interview, and he also analyzed each plaintiff's
written test results.
Although Dr. McHugh's comparison of these findings with the
control group from the ECA study may be questioned, such a challenge would go to the
141 F.Supp.2d 554
Page 16
weight rather than the admissibility of his expert testimony and would not require that
his testimony be excluded under either Rule 403 or Rule 702.
This Court accordingly
concludes that the epidemiological evidence to be presented by Dr. McHugh is relevant to
his opinion that each plaintiff sustained emotional damage as a result of the conditions
at Calvert Ridge.
In support of their motion to exclude or limit the expert testimony of Dr. McHugh, the
Ryan Defendants refer to that part of his deposition testimony which indicated that the
rating given by him to each plaintiff applied only to the evidence of distress shown by
the plaintiff on the date of the interview. Defendants note that Dr. McHugh was unable to
say during his deposition what the condition of each interviewed plaintiff was on any
other date, and that he acknowledged that this litigation has contributed to the
plaintiffs' stress. Defendants also argue that Dr. McHugh's testimony ignored unique and
personal pre-existing factors which may have contributed to or even caused the emotional
distress of certain plaintiffs.
But these challenges to the validity of Dr. McHugh's
opinions go to the weight and not to the admissibility of Dr. McHugh's testimony.
During
cross-examination of Dr. McHugh, Defendants may challenge his opinions by making the same
contentions as they have advanced here in support of their motion in limine.
[15] The Court further concludes that it should not prohibit Dr. McHugh from giving his
views concerning the duration of plaintiffs' emotional distress.
As a result of his
background, his epidemiological studies, and his interviews of the plaintiffs, Dr. McHugh
is qualified to render an opinion as to the legitimate "window of mental anxiety" during
which each plaintiff suffered emotional distress.
Plaintiffs' damages "must be confined
to injuries suffered during [their] legitimate window of mental anxiety" and after that
point "any lingering injuries, as a matter of law, are no longer related to fear that is
reasonable." Faya, 329 Md. at 459, 620 A.2d 327.
The Court is not, before hearing all
the evidence, prepared to consider Defendants' contention that as a matter of law each
plaintiff may not recover for mental distress suffered after the spring and summer of 1999
when remediation efforts were concluded.
This issue will be addressed after all of the
evidence has been presented during Phase II of the trial, and an appropriate instruction
will be given to the jury.
Dr. McHugh's opinion concerning the duration of plaintiffs'
emotional distress is relevant to that issue and may be presented during Phase II.
For the reasons stated, the Ryan Defendants' motion in limine to exclude or limit the
expert testimony of Dr. McHugh will be denied. [FN6]
FN6. There is no merit to Defendants' generalized contention that Dr. McHugh's
expert testimony should be excluded or limited because it does not satisfy the
requirements of Daubert and Rule 702.
*571 (d)
The Ryan Defendants' Motion in Limine To Preclude Plaintiffs from Making
Arguments Or Presenting Evidence Contrary to Undisputed Facts As Determined
by the Court
The Ryan Defendants have also asked the Court to enter an Order precluding plaintiffs
from making arguments or offering evidence contrary to certain facts determined by the
Court in its Memorandum and Order of March 22, 2001. According to the Ryan Defendants,
plaintiffs in the Pretrial Order have indicated that they intend to ignore findings made
by the Court in ruling on the parties' motions for summary judgment.
In support of this motion in limine, the Ryan Defendants have presented a list of certain
findings contained in the Court's 83-page Memorandum and Order of March 22, 2001.
Many
of those findings were made by the Court when it considered evidence relied upon by the
plaintiffs in support of counts of the amended complaint which have now been dismissed.
141 F.Supp.2d 554
Page 17
It is not possible for the Court at this stage of the case to know what statements will be
made by plaintiffs' attorneys in their opening statement nor the nature and extent of the
evidence to be presented in support of the claims asserted by plaintiffs under Counts VII
and XII of the amended complaint.
The parties are indeed bound by ultimate findings made
by the Court as a matter of law in its prior ruling, so long as those findings have
relevance to the issues of negligent misrepresentation and negligence which will be
presented to the jury. Findings which were made by the Court and which pertained to
elements of claims other than Counts VII and XII are not necessarily binding on the
parties during either the Phase I or the Phase II trial.
Accordingly, the Court
concludes that plaintiffs are entitled to present evidence in support of their claims of
negligent misrepresentation and negligence so long as that evidence does not contradict
earlier determinations which were made by the Court as a matter of law and which are
directly relevant to the negligence and damages claims being tried.
In granting the Ryan Defendants' motion for summary judgment as to Count I of the amended
complaint, the Court determined "that the conditions at Calvert Ridge do not present an
imminent and substantial endangerment" and that plaintiffs had not "presented credible
evidence that an immediate and serious risk of harm now exists if remedial action is not
taken." (Slip op. at 21). In granting the Ryan Defendants' motion for summary judgment as
to Count III of the amended complaint, the Court determined that a public nuisance does
not exist at Calvert Ridge, inter alia, because "methane will explode only if it is mixed
with oxygen in a confined space and then ignited" and because such "circumstances do not
exist near the roads and sidewalks in Calvert Ridge." (Slip op. at 24-25).
Plaintiffs
state that they will not attempt to litigate those issues at the trial, and they have
offered to refrain from introducing at the trial the testimony of experts who would
address those determinations.
Insofar as the other items of evidence listed by the Ryan Defendants in their motion are
concerned, it will be necessary for the Court to await the presentation by plaintiffs of
their case before it considers the arguments now advanced by the Defendants.
In support
of their claim that *572 they are entitled to recover damages for emotional distress,
plaintiffs themselves are indeed entitled to testify at Phase II of the trial that they
fear for their safety and that this fear is based on reasonable concerns.
The Ryan
Defendants in turn will be permitted by cross-examination or otherwise to present to the
jury evidence indicating that plaintiffs were overly sensitive, that they have overreacted
to existing conditions at Calvert Ridge and that their fears are irrational.
IV
Conclusion
For all the reasons stated, it is this ______ day of April, 2001 by the United States
District Court for the District of Maryland,
ORDERED:
(1) That plaintiffs' motion in limine to exclude irrelevant and unduly prejudicial
information is hereby granted in part and denied in part;
(2) That plaintiffs' motion in limine to exclude Ryan's expert witness Jack Matson is
hereby granted in part and denied in part;
(3) That plaintiffs' motion in limine concerning statements before the jury is hereby
granted in part and denied in part;
(4) That the Ryan Defendants' motion in limine to exclude evidence which has not been
produced in discovery is hereby granted in part and denied in part;
(5) That the Ryan Defendants' motion in limine to exclude testimony of plaintiffs'
experts is hereby granted in part and denied in part;
(6) That the Ryan Defendant' motion in limine to exclude or limit the expert testimony
of plaintiffs' expert Dr. Paul McHugh is hereby denied; and
141 F.Supp.2d 554
Page 18
(7) That the Ryan Defendants' motion in limine to preclude plaintiffs from making
arguments or presenting evidence contrary to the undisputed facts as determined by the
Court in its Memorandum and Order of March 22, 2001 is hereby granted in part and denied
in part.
141 F.Supp.2d 554, 56 Fed. R. Evid. Serv. 1317
END OF DOCUMENT
327 F.3d 400
33 Envtl. L. Rep. 20,165, 60 Fed. R. Evid. Serv. 1521
(Cite as: 327 F.3d 400)
Page 1
United States Court of Appeals,
Fifth Circuit.
H.E. STEVENSON, et al., Plaintiffs,
H.E. Stevenson, Dianna Stevenson, and Sharon Harper, Plaintiffs-Appellees,
v.
E.I. DuPONT DE NEMOURS AND COMPANY, Defendant-Appellant.
No. 02-40569.
April 3, 2003.
Landowners sued manufacturer for trespass, alleging that its petrochemical plant emitted
heavy metal particulates that contaminated their properties and affected their health as
well as the health of their animals. Following trial, the jury found for landowners on the
trespass theory and awarded damages for the diminished value of their property, and the
United States District Court for the Southern District of Texas, Janis Graham Jack, J.,
entered judgment accordingly and, subsequently, denied manufacturer's motions for a new
trial and judgment as a matter of law. Manufacturer appealed. Landowners moved for damages
and costs as a result of a frivolous appeal. The Court of Appeals, DeMoss, Circuit Judge,
held that: (1) under Texas law, as predicted by the Court of Appeals, landowners were not
required to show substantial damage to their property in order to recover for trespass;
(2) entry upon land by airborne particulates constitutes a "trespass" under Texas law; (3)
the evidence supported the jury's finding of trespass; (4) it was not error for the jury
to consider only damages for permanent, as opposed to temporary, trespass; (5) absent
proof of the value of the land before the trespass, the evidence was not sufficient to
justify the award of damages; and (6) manufacturer's appeal was not frivolous.
Affirmed in part, reversed in part, and remanded; motion for frivolous appeal damages
denied.
West Headnotes
[1] Federal Courts
776
170Bk776 Most Cited Cases
Fifth Circuit reviews de novo the district court's ruling on a motion for judgment as a
matter of law.
[2] Federal Courts
801
2609
When an action is tried by a jury, a motion for judgment as a matter of law is a challenge
to the legal sufficiency of the evidence supporting the jury's verdict, and the Court of
Appeals should consider the evidence drawing all reasonable inferences and resolving all
credibility determinations in the light most favorable to the nonmoving party.
[3] Federal Courts
763.1
170Bk763.1 Most Cited Cases
Court of Appeals' standard of review with respect to a jury verdict is especially
deferential.
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 2
[4] Federal Courts
763.1
170Bk763.1 Most Cited Cases
Reversal of a jury verdict is proper only if no reasonable jury could have arrived at the
verdict.
[5] Trespass
14
Under Texas law, absent any assertion that state law set the levels of contamination
necessary for landowners' recovery, landowners were not required to show substantial
damage to their property in order to recover for trespass by airborne heavy metal
particulates from manufacturer's petrochemical plant.
[6] Trespass
12
To constitute "trespass" under Texas law, there must be some physical entry upon the land
by some "thing."
[7] Trespass
12
Entry upon land by airborne particulates constitutes a "trespass" under Texas law.
[8] Federal Courts
629
Party's waiver of any challenges to the admissibility of expert testimony does not
preclude the Court of Appeals from reviewing the record to determine the sufficiency of
the evidence.
[9] Trespass
46(1)
Finding that manufacturer trespassed on landowners' properties, under Texas law, via
airborne heavy metal particulates from its petrochemical plant, was supported by evidence
that the subject properties were in the area showing the heaviest concentration of
manufacturer's emissions in the air, that higher- than-normal levels of metallic
particulates were found on the properties, that the metals found on the properties matched
the metals known to be emitted by manufacturer's factory, and that the concentrations on
landowner's roof were higher than the concentrations on the ground.
[10] Trespass
46(1)
Finding that manufacturer trespassed on landowner's property, under Texas law, via
airborne heavy metal particulates from its petrochemical plant, was supported by
landowner's testimony that she had to replace a metal roof because of corrosion and that
her metal fence was heavily corroded, and by evidence that the rust and corrosion was
heaviest on the side of the land facing manufacturer's factory.
[11] Trespass
50
Under Texas law, if a permanent trespass occurred, plaintiffs may recover the difference
in the market value of the land immediately before and immediately after the trespass.
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 3
[12] Trespass
47
Under Texas law, recovery for temporary trespass is limited to the amount necessary to
place the owner of the property in the same position he occupied prior to the injury.
[13] Trespass
44
[13] Trespass
50
Under Texas law, plaintiff claiming trespass does not have the burden of presenting
evidence that the trespass was permanent or, in the case of trespass via airborne
particulates, that the pollution could have been removed from plaintiff's property to
restore the property to its previous condition.
[14] Trespass
50
Where manufacturer, that had been sued for trespass under Texas law by means of airborne
heavy metal particulates from manufacturer's petrochemical plant, neither presented any
evidence to support a temporary trespass, nor requested a jury charge on such an issue, it
was not error for the jury to consider only damages for permanent trespass.
[15] Trespass
46(3)
Under Texas law, absent proof of the value of landowners' property before the permanent
trespass via airborne particulates from manufacturer's petrochemical plant, the evidence
was not sufficient to justify an award of damages of $6,000 per acre for each plaintiff;
the jury was presented with testimony about only one value for the property.
[16] Federal Courts
947
Court of Appeals has discretion to order a new trial rather than judgment as a matter of
law when the defect in the nonmoving party's proof might be remedied at a second trial.
2839
Court of Appeals only rarely finds an appeal to be frivolous.
2840
Where the Court of Appeals was reversing the district court's judgment as to damages, the
Court could not find that the appeal was frivolous.
*402 Waren Todd Hoeffner, Hoeffner, Bilek & Eidman, Houston, TX, for
Plaintiffs-Appellees.
Russell Joe Manning, Hornblower, Manning & Ward, Corpus Christi, TX, for
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before DeMOSS and STEWART, Circuit Judges, and FALLON, District Judge. [FN1]
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 4
FN1. District Judge of the Eastern District of Louisiana, sitting by designation.
DeMOSS, Circuit Judge:
Before the Court is the appeal of Defendant-Appellant E.I. DuPont De Nemours & Co.
("DuPont") from a jury verdict finding the defendants liable for trespass on the
Plaintiffs-Appellees' property. The Plaintiffs-Appellees in this case are H.E. Stevenson,
Dianna Stevenson, and Sharon Harper (referred to collectively as "Plaintiffs"). Carried
with DuPont's appeal is the Plaintiffs' motion for recovery of damages and costs under
F.R.A.P. 38. The *403 Plaintiffs brought suit against DuPont alleging that its Victoria,
Texas, plant emits heavy metal particulates, which contaminated the Plaintiffs' properties
located nearby and affected their health as well as the health of their animals. Their
theories of recovery included negligence, nuisance, and trespass. Following a six-day
jury trial, the jury found for the Plaintiffs only on the trespass theory and awarded the
Stevensons $168,000 and Harper $96,000 in damages for the diminished value of their
property.
DuPont appeals challenging the sufficiency of the evidence of the jury verdict. It
contends first that, as a matter of law, the Plaintiffs cannot recover for trespass based
on contamination by airborne particulates. Second, appellant asserts that the Plaintiffs'
evidence of causation was insufficient to show that DuPont's factory emissions actually
contaminated the Plaintiffs' properties. Finally, it alleges that the Plaintiffs
presented insufficient evidence regarding damages for the diminution of property values.
Plaintiffs, in response, have moved for damages and costs as a result of a frivolous
appeal. Specifically, the Plaintiffs contend that DuPont's challenges regarding the
causation evidence are actually Daubert challenges regarding the admissibility of the
evidence, and, because the defendant waived its Daubert challenge during a hearing on the
matter, this Court cannot now review these findings. Second, Plaintiffs argue that
DuPont's point of error on evidence of a temporary trespass as opposed to permanent
trespass was waived when DuPont failed to request that the Court submit such an issue to
the jury.
For the reasons set forth below, we AFFIRM the district court's denial of DuPont's motion
for judgment as a matter of law. We REVERSE the jury's award for damages, and REMAND for
a new trial on damages.
BACKGROUND & PROCEDURAL HISTORY
H.E. and Dianna Stevenson purchased 28 acres of land in Victoria, Texas in 1970 or 1971.
Mr. Stevenson built a house on the property, and the family moved into that house in 1976.
Mr. Stevenson used the property primarily to raise race horses. Sharon Harper purchased
16 acres of land approximately a block to block-and-a-half from the Stevensons' property
in 1982. She resides in a house on the property, along with her daughter, who lives in a
separate house on the property. During her time on the property, she raised cows, horses,
goats, chickens, and various other animals.
DuPont opened a petrochemical plant in Victoria, Texas, in 1951. The plant is
approximately one and one-half miles from the Plaintiffs' properties, which are the
closest lands to the plant. The plant produces "intermediate products" for shipping to
offsite customers. Throughout its operation, the plant has emitted heavy metals as a
result of burning hazardous waste. The emissions from the factory contain barium, cerium,
chromium, copper, lead, manganese, and zinc.
In January 2001, the Plaintiffs filed suit against DuPont for contamination of their
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 5
person, property, and livestock. Their theories of recovery were negligence, nuisance,
and trespass. During the trial, [FN2] James Miller, DuPont's environmental *404
consultant, testified as the employee most knowledgeable about the air emissions from the
stacks. He admitted that all air dispersion reports, including DuPont's, showed that the
Plaintiffs' properties were within the maximum level of impact for emissions from DuPont's
factory. This dispersion modeling showed that the emissions were most heavily
concentrated in the air over the Plaintiffs' properties.
FN2. Various testimony was heard during the trial regarding the health effects of
the contamination on the Plaintiffs and their animals. However, the jury found in
favor of the defendant on these issues, and this part of the verdict is not before
this Court on appeal. Accordingly, discussion of this testimony is omitted.
Michael Stringer was offered as the Plaintiff's expert on soil sampling. He collected
samples from the Stevensons' property, including a sample of dirt from their roof, and he
also collected soil samples from DuPont's plant and from a background source about 25 to
30 miles from the plant. He testified that concentrations of heavy metallic particles
were higher on the Stevensons' property than on the DuPont's property and much higher than
on the background property. Further, the types of metals found on the ground matched
those emitted by DuPont. Dr. Edwin Smith also testified for the Plaintiffs regarding soil
and roof samples taken from the Stevensons' property. He opined that the metallic
concentrations on the roof were higher than the concentrations on the ground, indicating
that the cause of the contamination was airborne in nature. No soil samples were taken
from Mrs. Harper's property, and Stringer testified that he did not analyze the samples
collected on her roof because it was metallic and would contain metallic particles anyway.
Mr. Stevenson testified that he had continuous upkeep problems at his house because the
paint would keep peeling off, and his window screens continually corroded. Sharon Harper
testified that she had continuous rust problems on her roof and pipe fence, with the worst
corrosion being on the side facing the DuPont factory.
To prove damages, the Plaintiffs offered the testimony of John Fox, a real estate
appraiser. Fox based his opinion solely on a letter provided by the executive director of
the Port of Victoria Industrial Park regarding the range of prices available for land in
the same area as the Plaintiffs. The letter stated that property in the area sold for
approximately $10,000 to $15,000 per acre. Fox then "placed that same range on the
Stevenson property, which would be 10 to 15,000 per acre." He then applied the same range
to value Mrs. Harper's property. The defendant's expert conducted an appraisal of the
properties in this case and concluded that the Fox's appraisal should be discounted
approximately 40 percent.
At the conclusion of the trial, the jury returned a partial verdict in the Plaintiffs'
favor. The jury found that DuPont was not negligent, and that its actions did not
constitute a nuisance. The jury did find that a trespass had occurred on the Plaintiffs'
lands, but did not find that the trespass was willful or wanton. The jury further denied
recovery for the Plaintiffs' physical pain and mental anguish as well as for injury to
their animals, but the jury did award the Stevensons $168,000 and Harper $96,000 for "the
difference in the market value of the property ... immediately before and after the damage
... proximately caused by DuPont's operation of the Victoria Plant."
The District Court entered judgment in favor of the Stevensons and Harper in these
amounts. DuPont promptly moved for a new trial and judgment as a matter of law, and the
District Court denied the motions. DuPont then timely appealed to this Court to review
the sufficiency of the evidence.
DISCUSSION
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 6
I. Whether the district court erred in denying DuPont's motion for judgment as a matter
of law.
[1][2][3][4] This Circuit reviews de novo the district court's ruling on a motion for
judgment *405 as a matter of law. See Cozzo v. Tangipahoa Parish Council-President
Government, 279 F.3d 273, 280 (5th Cir.2002). However, when an action is tried by a jury,
such a motion is a challenge to the legal sufficiency of the evidence supporting the
jury's verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir.2000). Accordingly,
the Court should consider the evidence "drawing all reasonable inferences and resolving
all credibility determinations in the light most favorable to the non-moving party." Id.
Furthermore, the Court's "standard of review with respect to a jury verdict is especially
deferential." Id. Thus, reversal is proper "only if no reasonable jury could have arrived
at the verdict." Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.1998).
DuPont argues that a trespass traditionally requires a direct and physical invasion by
tangible matter onto another person's property, while a cause of action for nuisance
requires a showing of indirect invasion and intangible intrusion. DuPont relies on Adams
v. Cleveland-Cliffs Iron Co., 237 Mich.App. 51, 602 N.W.2d 215 (1999), to support its
claims that the intrusion of airborne particles onto Plaintiff's land does not constitute
a trespass. Adams, a Michigan case, declined to follow recent Michigan case law expanding
the tort of trespass and held that the invasion of dust particles was not sufficient
evidence of trespass because these particles do not present a "significant physical
intrusion." Id. at 223. Defendant contends that this traditional view of trespass law
would preclude Plaintiffs' recovery.
The current case law that Adams rejected in reaching its decision does hold that a
trespass occurs when particulate matter is present on another's property; however, those
cases also modify "traditional" trespass law by requiring "substantial damage to the res."
J.H. Borland v. Sanders Lead Co., 369 So.2d 523, 530 (Ala.1979). See also Bradley v.
American Smelting & Refining Co., 104 Wash.2d 677, 709 P.2d 782, 791 (1985) (adopting the
holding of Borland requiring substantial damage for trespass caused by airborne
particulates). DuPont relies on Borland, an Alabama case, and Bradley, a Washington state
case, to suggest the modern view of trespass law would support the cases of the Stevensons
and Harper, but would require a showing of substantial damage.
[5] DuPont admits that Texas courts have not decided this particular issue. However, it
contends that under either theory, the Plaintiffs cannot recover in this case. Under the
old theory, the injury must be direct and tangible, which precludes recovery because the
airborne particles are neither direct nor tangible. Further, under the new theory, the
Plaintiffs have failed to establish the substantial damage requirement. Significantly,
however, the defendant cannot point to any Texas case specifically adopting these
requirements. DuPont argues that Texas courts have adopted the substantial damage
requirement, but the cases it relies on in support of that contention involved situations
in which the state had set the minimum levels of damage necessary to maintain a cause of
action in trespass. See, e.g., Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 780 (Tex.
Ct.App.-San Antonio 1999, writ denied) (holding that because the Plaintiff did not prove
contamination above state action levels, recovery for trespass was not possible); Z.A.O.,
Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531, 543-44 (Tex. Ct.App.-El Paso
2001, no writ) (same). In this case, there is no assertion that Texas law sets the
required levels of contamination necessary for recovery by the Plaintiffs. Thus, the
Plaintiffs were not required to show substantial damage to their property.
*406 [6][7] DuPont's arguments also fail because this Court is required to apply the law
of Texas as it currently stands. The Texas Supreme Court set forth the following
definition of trespass with its decision in Railroad Comm'n of Texas v. Manziel, 361
S.W.2d 560 (Tex.1962): "To constitute trespass there must be some physical entry upon the
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 7
land by some 'thing.' " Id. at 567. Research shows no Texas cases adopting a "direct and
tangible" requirement to prove trespass. Because the only showing necessary is entry over
land by some "thing," Texas law would permit recovery for airborne particulates.
II. Whether sufficient evidence was presented to the jury to prove that the emissions
from DuPont deposited heavy metal particulates on the Plaintiffs' properties.
DuPont first attacks the methodology used by Plaintiffs' air modeling expert, Johnny
Sanders. It contends that his methods were not sufficiently reliable to determine that
the concentrations of metals would move from DuPont's property to the Plaintiffs'
properties. DuPont cites several examples of his testimony to show that it is unreliable.
First, it points out that Sanders did not do any depositional modeling, which would have
confirmed whether the particles actually landed on the Plaintiffs' properties. Second,
DuPont asserts that Sanders used improper data in reaching his calculations and that he
disregarded the actual data he was given by DuPont. Third, Sanders' testimony had
mathematical errors, which skewed his analysis.
DuPont also contends that Plaintiffs' experts Stringer and Smith were not reliable when
they testified regarding the presence of heavy metals on the Plaintiffs' properties.
First, DuPont points out that Dr. Smith's analysis of the soil sample was improper because
it was delivered to him by the Stevensons, who did not create a chain of custody document
for the sample. Second, DuPont argues that Dr. Smith failed to inquire or determine
whether the metals could have come from any alternative sources. Finally, DuPont points
out that Stringer only tested two soil samples from the Stevensons' property.
[8] Plaintiffs contend first that DuPont lost its right to challenge the reliability of
its expert testimony when it waived its Daubert challenges during a hearing on the
admissibility of expert testimony. Plaintiffs characterize defendant's arguments as
challenges to the admissibility of the evidence disguised as challenges to the sufficiency
of the evidence. Its arguments, however, on this point are not persuasive. Although
DuPont lost the right to challenge the admissibility of the evidence, it did not lose the
right to challenge the sufficiency of the evidence.
In In re Joint Eastern & Southern District Asbestos Litigation, 52 F.3d 1124 (2d
Cir.1995), the Second Circuit thoroughly examined the interaction between the standards
enunciated in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), and the sufficiency of the evidence. Plaintiffs in the asbestos
litigation sought damages for colon cancer allegedly caused by asbestos products
manufactured by the defendants. The jury found in favor of the Plaintiff, and the
defendant promptly moved for judgment as a matter of law. The district court granted the
motion and set aside the jury verdict finding that the Plaintiff's epidemiological
evidence was insufficient to support a causal connection between asbestos and colon
cancer.
The Second Circuit reversed finding that the district court had improperly taken the case
away from the jury and overstepped its role as contemplated by Daubert. *407Id. at 1126.
The court noted that a sufficiency inquiry asks whether the collective weight of a
litigant's evidence is adequate to present a jury question. Id. at 1132. Further, the
court found that Daubert did not change the traditional role of a sufficiency inquiry, but
only expanded the trial court's role regarding the admissibility of expert evidence. Id.
The court quoted the following passage from Daubert to illustrate the proper method of
attacking questionable-but-admissible expert evidence: " '[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof' " are
the traditional and appropriate means of attacking shaky but admissible evidence. Id. at
1132 (quoting Daubert, 509 U.S. at 599, 113 S.Ct. 2786).
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 8
Following these guidelines, this Court may review the record to determine the sufficiency
of the evidence; the defendant's waiver of any challenges to the admissibility of the
expert testimony does not preclude such a sufficiency review by this Court. Defendant
properly preserved its rights to challenge the sufficiency of the evidence when it moved
for a judgment as a matter of law in the trial court. However, as we noted above, this
Court must draw all inferences from the evidence in favor of the Plaintiffs. Brown, 219
F.3d at 456.
[9] As noted above, the testimony of all air modeling experts in this case, including
DuPont's expert, James Miller, showed that the Plaintiffs' properties were in the area
showing the heaviest concentration of DuPont's emissions. Thus, the defendant's arguments
regarding discrepancies or improper modeling techniques in Sanders' opinions and testimony
is not persuasive. His testimony is supported by that of the other experts in the case.
DuPont correctly points out that the air modeling testimony only showed that the airborne
particulates were in the air over Plaintiffs' properties, not that it actually landed on
the ground. However, the testimony of Dr. Smith and Mr. Stringer established that point.
Their testimony showed higher-than-normal levels of metallic particulates on the
Plaintiffs' property; the metals found on Plaintiffs' land also matched the metals known
to be emitted by DuPont's factory. Further, Dr. Smith opined that because the
concentrations on the Stevensons' roof were higher than the concentrations on the ground,
the contamination was airborne in origin. A jury could reasonably infer that the
particles on the ground were from DuPont's factory because the Stevensons' property was in
the area most heavily covered by the airborne particulates.
DuPont argues that Dr. Smith's testimony was improper because he analyzed only a single
sample, and no chain of custody was created. DuPont never objected to the admission of
this testimony, and the record shows that DuPont's counsel adequately cross-examined Dr.
Smith on his techniques. DuPont's challenges go to the weight of the evidence, and this
Court should defer to the jury's findings that this testimony indicated the particular
result.
DuPont also asserts that the Plaintiffs failed to present any evidence showing the
background levels of heavy metal particulates in the air before the wind reached the
DuPont factory. Further, it contends that the Plaintiffs' experts started with the
conclusion that the contamination came from the DuPont factory and crafted their testimony
to justify that. This argument fails again, however, because DuPont's own evidence showed
that its emissions were most heavily concentrated over the Plaintiffs' properties. The
jurors were not required to rule out all other potential causes, only to find that the
defendant's emissions more probably than not landed on the Plaintiffs' *408 lands. Thus,
the jury's findings have a basis in fact.
[10] DuPont's final point concerns the findings of trespass with respect to Harper's
property. It is true that no soil or roof samples were tested from her land. However,
Harper herself testified that she had to replace a metal roof because of corrosion, and
she testified that her metal fence was heavily corroded. In both cases, the evidence
showed that the rust and corrosion was heaviest on the side of the land facing the DuPont
property. Harper's testimony was consistent with the Stevensons' testimony regarding the
effects of corrosion. Drawing the inferences in favor of the Plaintiffs, and noting that
they were neighbors, it was reasonable for the jury to conclude that if DuPont's
contamination affected the Stevensons, it also affected Harper. Thus, there is an
evidentiary basis for finding a trespass on the Harper property.
In conclusion, the evidence presented at trial supports a finding of trespass on the
Plaintiffs' properties. Testimony showed that the emissions from DuPont's factory were
most heavily concentrated over the Plaintiffs' property and that their property showed
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 9
evidence of heavy metal contamination that was most likely airborne in nature.
Accordingly, the jury could reasonably infer that a trespass was committed, and the jury's
findings is affirmed.
III. Whether the evidence presented was sufficient to justify the award of damages.
[11][12] DuPont raises two issues on appeal regarding the jury's award of damages.
First, it contends that no evidence was presented to determine whether the trespass was
permanent or temporary in nature. If a permanent trespass occurred, the Plaintiffs could
recover "the difference in the market value of the land immediately before and immediately
after the trespass." Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984). Recovery for
temporary trespass is limited to the "amount necessary to place the owner of the property
in the same position he occupied prior to the injury." Kraft v. Langford, 565 S.W.2d 223,
227 (Tex.1978).
[13][14] DuPont argues that the Plaintiffs should have presented evidence that the
trespass was permanent or that the pollution could have been removed from the Plaintiffs'
properties to restore that property to its previous condition. However, that is not the
burden placed on a Plaintiff claiming trespass. In Sadler v. Duvall, 815 S.W.2d 285 (Tex.
Ct.App.- Texarkana 1991, writ denied), the court held that "in absence of proof that
repair is actually or economically feasible, the injury may be deemed permanent." Id. at
292. In this case, DuPont neither presented any evidence to support a temporary trespass,
nor requested a jury charge on such an issue. Accordingly, it was not error for the jury
to consider only damages for permanent trespass.
[15] DuPont's second issue with respect to damages is that the evidence was insufficient
to support the damages awarded. The Stevensons were awarded $168,000, and Sharon Harper
was awarded $96,000; this amounts to an award of $6,000 per acre for each Plaintiff. The
jury form stated that these damages were given for the "difference in the market value of
the property ... immediately before and immediately after the damage." As noted above,
the Porras court held that this is the proper standard for the measurement of damages from
permanent trespass.
The Plaintiffs again argue that DuPont waived its right to challenge any expert testimony
regarding damages. However, *409 as noted above, this argument goes only to admissibility
of the evidence and does not affect consideration of the sufficiency of the expert's
testimony to support the jury's verdict.
The Plaintiffs' only proof as to the value of their properties was the testimony of John
Fox, who opined that the value of the properties was between $10,000 to $15,000.
Plaintiffs' brief characterizes Fox's testimony as showing the value of the property
without pollution. The Plaintiffs also argue that their land is now worthless because
they so testified. DuPont argues that the Plaintiffs description of Fox's testimony is
misleading. DuPont contends that Fox valued the property as of the present time,
including any possible contamination by DuPont. As to the Plaintiffs' valuation of their
own properties, DuPont contends that its testimony is simply inconsistent with that of
Fox, who testified as to the properties' values.
A review of the record does not support Plaintiffs' characterization of Fox's testimony.
He never testifies that his values were for the property without any pollution. Fox's
testimony discussed the value of the property in an industrial area, but he never
mentioned that some properties were valued differently because of any potential pollution
problems. Accordingly, Plaintiffs' arguments are without merit. Furthermore, Plaintiffs
describe DuPont's expert's 40 percent discount as based on industrial factors. DuPont's
expert only adjusted the value to note the value of residential improvements due to
external obsolescence. Again, Fox never mentioned that these values assumed no pollution
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 10
had occurred.
In any event, neither method is a proper method of calculating damages. Texas law is
very clear that the proper measure of damages for permanent trespass is "the difference in
the market value of the land immediately before and immediately after the trespass."
Porras, 675 S.W.2d at 504. Here, the jury was presented with testimony about only one
value for the property. No evidence was presented to show the value of the land before
the trespass began. As such, the jury could not reasonably have awarded the damages it
did in this case.
[16] In these circumstances, "[t]he court has discretion to order a new trial rather than
judgment as a matter of law when the defect in the nonmoving party's proof might be
remedied at a second trial." Bradley v. Armstrong Rubber Co., 130 F.3d 168, 178 (5th
Cir.1997). We hold that the damages award, therefore, should be vacated and the case
remanded for a new trial on damages.
IV. Whether DuPont's appeal should be dismissed as frivolous.
In addition to DuPont's appeal, the Plaintiffs have also filed a Motion for Recovery of
Damages and Costs for Frivolous Appeal Under F.R.A.P. 38. Further, Plaintiffs have also
moved to strike DuPont's response to the motion as untimely. First, without undertaking a
lesson in applying F.R.A.P. 27 and F.R.A.P. 26(c), we note that DuPont's response was
timely filed. Second, regardless of whether DuPont's response was timely, we must still
address Plaintiffs' motion. The motion is predicated on two arguments: (1) DuPont cannot
appeal the trial court's findings regarding admissibility of evidence, even when couched
in terms of an appeal on the sufficiency of the evidence; and (2) DuPont cannot appeal
the district court's failure to give an instruction on temporary trespass when it failed
to preserve the right on appeal.
[17][18] As to the first point, a distinction exists between the admissibility of the
*410 evidence and its sufficiency to sustain a jury verdict. This point was addressed
above. Plaintiffs arguments do not solely address the reliability of the evidence or its
admissibility. Although some of their arguments concern reliability, their briefs, taken
as a whole, argue specific facts in the testimony, not just the reliability or
admissibility of the testimony. Finally, this Court only rarely finds an appeal to be
frivolous. See, e.g., Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1161 (5th
Cir.1985). For example, in Stelly v. Commissioner, 761 F.2d 1113 (5th Cir.1985), the
Court held an appeal frivolous only because a great weight of the authority in the case
was clearly on point and did not favor the Plaintiff. Id. at 1116. This is not one of
those cases. This Court has previously and repeatedly denied points of error because the
appellant failed to preserve the issue in the court below. In those instances, the Court
merely denied the appeal without a finding of frivolity. This case should be no
different.
Finally, because this Court is reversing the judgment as to damages, this Court cannot
find that the appeal was frivolous. The reversal is a clear indication that the appeal
has merit. Therefore, the motion for damages and costs is denied.
CONCLUSION
Based on the foregoing discussion, DuPont's point of error regarding the proper
definition of trespass and its arguments concerning the sufficiency of the evidence to
support a finding of trespass are without merit, and the district court's denial of the
judgment as a matter of law and the jury's findings of trespass are AFFIRMED. However,
the Plaintiffs did not carry their burden of proving damages because they failed to prove
the value of the land before the trespass. Accordingly, we REVERSE on this point and
327 F.3d 400
(Cite as: 327 F.3d 400)
Page 11
REMAND for a new trial on the damages sustained by the Plaintiffs. Because we find that
the damages were not properly proved, this appeal cannot be frivolous, and the Plaintiff's
motion is DENIED.
AFFIRMED in part, REVERSED in part, and REMANDED.
327 F.3d 400, 33 Envtl. L. Rep. 20,165, 60 Fed. R. Evid. Serv. 1521
END OF DOCUMENT
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 1
Supreme Court of Connecticut.
UNITED TECHNOLOGIES CORPORATION
v.
TOWN OF EAST WINDSOR.
No. 16761.
Argued Sept. 13, 2002.
Decided Nov. 5, 2002.
Taxpayer, who was lessee of improved real estate, appealed decision of town board of
assessment appeals upholding tax assessor's determination of fair market value of property
for property tax purposes. The Superior Court, Judicial District of New Britain, Arnold W.
Aronson, Judge Trial Referee, determined that property was not overassessed and dismissed
appeal. Taxpayer appealed. After transferring appeal, the Supreme Court, Norcott, J., held
that: (1) trial court properly determined that property's highest and best use was its
continued use as industrial facility as presently used by taxpayer, and (2) report by
appraisers for board was relevant to determination of property's value, and thus report
was admissible.
Affirmed.
West Headnotes
[1] Taxation
493.7(8)
In appeals of property tax assessment, trial court tries matter de novo and ultimate
question is ascertainment of true and actual value of taxpayer's property. C.G.S.A. §
12-117a.
[2] Taxation
493.7(4)
At de novo proceeding before trial court in taxpayer's appeal of property tax assessment,
taxpayer bears burden of establishing that assessor has overassessed taxpayer's property.
C.G.S.A. § 12-117a.
[3] Taxation
493.9
Once taxpayer challenging property tax assessment has demonstrated aggrievement by proving
that its property was overassessed, trial court will then undertake further inquiry to
determine amount of reassessment that would be just. C.G.S.A. § 12-117a.
[4] Taxation
493.8
Trier of fact, in taxpayer's appeal of property tax assessment, must arrive at its own
conclusions as to value of property by weighing opinion of appraisers, claims of parties
in light of all circumstances in evidence bearing on value, and his own general knowledge
of elements going to establish value. C.G.S.A. § 12-117a.
1008.1(5)
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 2
Under "clearly erroneous standard of review," Supreme Court does not examine record to
determine whether trier of fact could have reached a conclusion other than the one
reached; rather, Court focuses on conclusion of trial court, as well as method by which
trial court arrived at that conclusion, to determine whether conclusion is legally correct
and factually supported.
1008.1(5)
Finding of fact is "clearly erroneous" when there is no evidence in record to support it
or when although there is evidence to support it, reviewing court on entire evidence is
left with definite and firm conviction that mistake has been committed.
[7] Taxation
348(3)
Trial court properly determined that improved property's highest and best use was its
continued use as industrial facility as presently used by taxpayer who was appealing
property tax assessment, since facility was built for needs of specific tenant, present
use continued to be legally feasible under zoning law, and taxpayer was profitably using
property. C.G.S.A. § 12-117a.
[8] Taxation
348(3)
"Fair market value," for purposes of determining property tax assessment, is defined as
price that willing buyer would pay willing seller based on highest and best possible use
of land assuming, of course, that market exists for such optimum use.
[9] Taxation
493.8
Trier's determination of property's highest and best use, in taxpayer's appeal of property
tax assessment, is question of fact that Supreme Court will not disturb unless
determination is clearly erroneous. C.G.S.A. § 12-117a.
[10] Taxation
493.8
Supreme Court, in reviewing taxpayer's appeal of property tax assessment, would apply
clearly erroneous standard of review, not plenary review, to review trial court's
determination of highest and best use of taxpayer's property, since controlling legal
definitions and principles were generally not at issue, and taxpayer's arguments were
grounded in an attack on trial court's factual analysis and conclusions. C.G.S.A. §
12-117a.
[11] Trial
382
In case tried to court, trial court is privileged to adopt whatever testimony court
reasonably believes to be credible.
994(1)
1122(2)
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 3
On appeal, Supreme Court does not retry facts or pass on credibility of witnesses.
[13] Taxation
493.7(2)
Report by appraisers for town board of assessment appeals regarding value of taxpayer's
improved industrial property was relevant to determination of property's value, and thus
report was admissible in taxpayer's appeal of property tax assessment. C.G.S.A. §
12-117a.
970(2)
[14] Trial
43
Trial court is given broad latitude in ruling on admissibility of evidence, and Supreme
Court will not disturb such a ruling unless it is shown that ruling amounted to abuse of
discretion.
[15] Evidence
99
"Relevant evidence" is evidence that has logical tendency to aid trier in determination of
issue.
[16] Evidence
99
Evidence need not exclude all other possibilities to be relevant; it is sufficient if it
tends to support conclusion for which it is offered, even to a slight degree.
[17] Evidence
99
Fact that evidence is susceptible of different explanations or would support various
inferences does not affect its admissibility, although it obviously bears upon its weight.
[18] Evidence
99
So long as evidence may reasonably be construed in such manner that it would be relevant,
it is admissible.
[19] Evidence
99
Evidence is not rendered inadmissible because it is not conclusive; all that is required
is that evidence tend to support relevant fact even to slight degree, so long as it is not
prejudicial or merely cumulative.
[20] Taxation
493.5
Taxpayer failed to preserve for appellate review its claim that trial court, in taxpayer's
appeal of property tax assessment, erred by admitting into evidence report by appraisers
for town board of assessment appeals regarding value of taxpayer's improved industrial
property when report did not satisfy relevance and liability standards for admission of
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 4
expert testimony, where taxpayer's objection at trial was not based on rules of evidence.
169
Supreme Court is not bound to consider claims of law not made at trial.
230
In order to preserve evidentiary ruling for review, trial counsel must object properly.
Practice Book 1998, § 5-5.
231(3)
In objecting to evidence, counsel must properly articulate basis of objection so as to
apprise trial court of precise nature of objection and its real purpose, in order to form
adequate basis for reviewable ruling. Practice Book 1998, § 5-5.
232(2)
Once trial counsel states authority and ground of his objection to evidence, any appeal
will be limited to ground asserted. Practice Book 1998, § 5-5.
230
Proper preservation of claims for appellate review requires that trial court be
effectively alerted to claim of potential error while there is still time for court to
act.
**957 Gregory F. Servodidio, with whom were Julie A. Morgan and, on the brief, Elliott B.
Pollack, Bridgeport, for the appellant (plaintiff).
Frank W. Murphy, Norwalk, with whom was Kara T. Murphy, Branford, for the appellee
(defendant).
BORDEN, NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.
NORCOTT, J.
The principal issue in this appeal is whether the trial court's conclusion about the
subject property's highest and best use was improperly restrictive, forcing it to ignore
relevant market data when valuing the property.
The plaintiff, United Technologies
Corporation, [FN1] brought this action against the defendant, *13 the town of East
Windsor, pursuant to General Statutes § 12-117a, [FN2] appealing from the decision of
**958 the board of assessment appeals of the town of East Windsor (board) *14 upholding
the assessor's determination of the fair market value of the plaintiff's aftermarket
support facility.
The trial court determined that the plaintiff's property was not
overassessed and dismissed the plaintiff's appeal.
The plaintiff appealed from that
judgment to the Appellate Court, and we transferred the appeal to this court pursuant to
Practice Book § 65-1 and General Statutes § 51-199(c). We affirm the judgment of the
trial court.
FN1. The action was brought by the Hamilton Standard Division of United Technologies
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 5
Corporation.
FN2. General Statutes § 12-117a provides: "Any person, including any lessee of real
property whose lease has been recorded as provided in section 47-19 and who is bound
under the terms of his lease to pay real property taxes, claiming to be aggrieved by
the action of the board of tax review or the board of assessment appeals, as the
case may be, in any town or city may, within two months from the date of the mailing
of notice of such action, make application, in the nature of an appeal therefrom,
with respect to the assessment list for the assessment year commencing October 1,
1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1,
1994, or October 1, 1995, and with respect to the assessment list for assessment
years thereafter, to the superior court for the judicial district in which such town
or city is situated, which shall be accompanied by a citation to such town or city
to appear before said court.
Such citation shall be signed by the same authority
and such appeal shall be returnable at the same time and served and returned in the
same manner as is required in case of a summons in a civil action.
The authority
issuing the citation shall take from the applicant a bond or recognizance to such
town or city, with surety, to prosecute the application to effect and to comply with
and conform to the orders and decrees of the court in the premises.
Any such
application shall be a preferred case, to be heard, unless good cause appears to the
contrary, at the first session, by the court or by a committee appointed by the
court. The pendency of such application shall not suspend an action by such town or
city to collect not more than seventy-five per cent of the tax so assessed or not
more than ninety per cent of such tax with respect to any real property for which
the assessed value is five hundred thousand dollars or more, and upon which such
appeal is taken.
If, during the pendency of such appeal, a new assessment year
begins, the applicant may amend his application as to any matter therein, including
an appeal for such new year, which is affected by the inception of such new year and
such applicant need not appear before the board of tax review or board of assessment
appeals, as the case may be, to make such amendment effective. The court shall have
power to grant such relief as to justice and equity appertains, upon such terms and
in such manner and form as appear equitable, and, if the application appears to have
been made without probable cause, may tax double or triple costs, as the case
appears to demand; and, upon all such applications, costs may be taxed at the
discretion of the court.
If the assessment made by the board of tax review or
board of assessment appeals, as the case may be, is reduced by said court, the
applicant shall be reimbursed by the town or city for any overpayment of taxes,
together with interest and any costs awarded by the court, or, at the applicant's
option, shall be granted a tax credit for such overpayment, interest and any costs
awarded by the court.
Upon motion, said court shall, in event of such overpayment,
enter judgment in favor of such applicant and against such city or town for the
whole amount of such overpayment, together with interest and any costs awarded by
the court.
The amount to which the assessment is so reduced shall be the assessed
value of such property on the grand lists for succeeding years until the tax
assessor finds that the value of the applicant's property has increased or
decreased."
The record reveals the following facts and procedural history relevant to the disposition
of this appeal.
The plaintiff is the lessee of improved real estate located at 97
Newberry Road in East Windsor.
The plaintiff uses this property as an aftermarket
support facility for the manufacturing, repairing, and reconditioning of jet engine fuel
injectors and propellers for aircraft piston engines.
The plaintiff also manufactures
testing equipment and performs ancillary administrative tasks at the facility.
The
property is located in a primarily industrial area on the north side of Newberry Road in
East Windsor, just east of Route 5. Route 5 is a commercial highway that provides ready
807 A.2d 955
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Page 6
access to Interstates 84 and 91, as well as nearby Bradley International Airport in
Windsor Locks.
Several other major corporations also have facilities in this area of
East Windsor, which is zoned for light industrial use with a minimum lot size of 60,000
square feet.
As the trial court aptly stated, the plaintiff's property is "not the normal
run-of-the-mill plant."
It is a 278,025 square foot light industrial facility located on
39.41 acres of land with an on-site, tax-exempt **959 wastewater *15 treatment facility.
The facility is a one-story building, 78.2 percent (217,455 square feet) of which is
devoted to manufacturing, with the remaining 21.8 percent (60,570 square feet) allotted
for office space.
The structure also contains an 8000 square foot interior mezzanine.
The ceiling height inside the building is fourteen feet in the offices and more than
twenty-six feet in the manufacturing area.
The facility includes environmentally
controlled "clean rooms," blast-resistant doors, explosion- containing walls for a
chemical storage area, a reinforced concrete floor designed for heavy loads, heating and
air conditioning for the entire building, the highest quality plumbing infrastructure,
floor drainage systems with emergency tanks to contain chemical spills, and full fire
suppression capabilities, including sprinklers and a fire warden's station.
In June, 1987, the plaintiff entered into a fifteen year lease with Beckenstein
Enterprises (Beckenstein).
Under the terms of the lease, Beckenstein was to construct
the facility in accordance with the plaintiff's plans and specifications.
In November,
1987, Beckenstein completed the purchase of the necessary land on which the plaintiff's
facility is located for $1,400,000, which is equal to $35,523 per acre.
The construction
was financed with funds provided by Prudential Insurance Company of America (Prudential).
[FN3] Construction was completed in 1988, and the plaintiff took occupancy in 1989.
The
lease itself is a modified triple net lease under which the plaintiff is responsible for
all operating expenses, including taxes.
As lessor, Beckenstein, remains responsible for
insurance and structural repairs.
FN3. The premises, which are owned by Beckenstein, are subject to a nonrecourse
mortgage with Prudential as the mortgagee, executed in September, 1994.
The
mortgage's principal amount is $26,000,000, which is secured solely by the property.
*16 The initial rent under the lease for the first five years was based on the cost of
construction, including change orders.
Thereafter, the rent was adjustable for the
balance of the lease period, depending on the mortgage to Prudential.
In 1994,
Beckenstein and the plaintiff executed the fifth amendment to the lease. [FN4] Under this
amendment, the annual rent for each of the remaining ten years on the lease was
$4,251,687.
The amendment also provided the plaintiff with an option to purchase the
property for $25,344,000 or a mutually agreed upon price at the termination of the lease,
or, in the alternative, a right of first refusal.
FN4. This amendment was executed in settlement of a dispute between Beckenstein and
the plaintiff over earlier lease terms.
On the list of October 1, 1995, John Valente, an independent appraiser hired by the town
of East Windsor, assessed the property pursuant to General Statutes § 12-63b [FN5] and
FN5. General Statutes § 12-63b provides: "(a) The assessor or board of assessors in
any town, when determining the present true and actual value of real property as
provided in section 12-63, which property is used primarily for the purpose of
producing rental income, exclusive of such property used solely for residential
purposes, containing not more than six dwelling units and in which the owner
resides, and with respect to which property there is insufficient data in such town
based on current bona fide sales of comparable property which may be considered in
807 A.2d 955
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Page 7
determining such value, shall determine such value on the basis of an appraisal
which shall include to the extent applicable with respect to such property,
consideration of each of the following methods of appraisal: (1) Replacement cost
less depreciation, plus the market value of the land, (2) the gross income
multiplier method as used for similar property and (3) capitalization of net income
based on market rent for similar property. The provisions of this section shall not
be applicable with respect to any housing assisted by the federal or state
government except any such housing for which the federal assistance directly related
to rent for each unit in such housing is no less than the difference between the
fair market rent for each such unit in the applicable area and the amount of rent
payable by the tenant in each such unit, as determined under the federal program
providing for such assistance.
"(b) For purposes of subdivision (3) of subsection (a) of this section and,
generally, in its use as a factor in any appraisal with respect to real property
used primarily for the purpose of producing rental income, the term 'market rent'
means the rental income that such property would most probably command on the open
market as indicated by present rentals being paid for comparable space.
In
determining market rent the assessor shall consider the actual rental income
applicable with respect to such real property under the terms of an existing
contract of lease at the time of such determination."
**960 *17 12-62a [FN6] and determined that the total fair market value [FN7] of the
property was $22,236,770, with an assessed value of $15,565,740. Valente testified before
the trial court that he used the cost approach [FN8] to appraise the property because he
felt it was best adapted to "[deal] with [the] specific features or subtle characteristics
of [the] property...." He also performed an evaluation using the income capitalization
approach, [FN9] but did not use the market sales approach [FN10] to determine a valuation
because he concluded that there were no sales of properties comparable to the plaintiff's.
FN6. General Statutes § 12-62a (b) provides in relevant part: "Each ... municipality
shall assess all property for purposes of the local property tax at a uniform rate
of seventy per cent of present true and actual value, as determined under section
12-63."
FN7. This calculation included the fair market values of the land, buildings,
on-site wastewater treatment facility, and outbuildings.
The wastewater treatment
facility is valued but not taxed.
FN8. Under the cost approach to valuation, the appraiser estimates the current cost
of replacing the subject property, with adjustments for depreciation, the value of
the underlying land, and entrepreneurial profit.
See J. Eaton, Real Estate
Valuation in Litigation (2d Ed.1995) p. 157.
FN9. "The income capitalization approach is a procedure that appraisers use to
develop an indication of market value by applying a rate or factor to the
anticipated net income from a property."
J. Eaton, Real Estate Valuation in
Litigation (2d Ed.1995) p. 194.
Appraisers arrive at the anticipated net income by
considering the property's actual rental income, as well as the rental income for
comparable properties in the vicinity, property expenses, and allowances for vacancy
and collection losses.
Id. Valente's income capitalization valuation used the
discounted cash flow method that accommodates the risks of payment over time under
long-term lease arrangements by considering each year's individual cash flows.
It
also requires a market analysis of comparable leases.
Valente testified that he
used the actual lease income negotiations between the plaintiff and Beckenstein as
"comparable to market," because he found no comparable leases within the relevant
market.
807 A.2d 955
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Page 8
FN10. The market sales approach is also known as the "sales comparison approach" or
the "market data approach."
J. Eaton, Real Estate Valuation in Litigation (2d
Ed.1995) pp. 197-98.
Under the market sales approach, the subject property's
appraised value is derived from a comparison to recently sold similar properties in
the vicinity, with appropriate value adjustments "based on the elements of
comparison." Id., at p. 197.
*18 The plaintiff appealed from Valente's determination to the board seeking a reduction
of the assessment.
The board did not reduce the property's assessed value.
The
plaintiff then appealed from the board's decision to the trial court. [FN11]
FN11. The plaintiff subsequently filed amendments to the tax appeal in the month of
October of 1996, 1997, 1998, 1999 and 2000, to revise the assessment lists to
reflect the most current valuation.
The trial court framed the primary issue as whether Valente's valuation of the property
**961 was excessive.
The plaintiff and the defendant each presented the expert testimony
and reports of two independent appraisers. Arnold J. Grant and William N. Kinnard
testified for the plaintiff, and Christopher K. Kerin and Ronald B. Glendinning testified
for the defendant. The defendant also presented testimony by Valente, who made the
original assessment, and Joseph Gambino, a construction expert.
The starting point of the trial court's analysis of the town's valuation was a
determination of the property's highest and best use [FN12] at the time of the
assessment.
The plaintiff's and the defendant's appraisers each testified to a highest
and best use for the property.
They then arrived at estimates of the property's fair
market value, following the same basic analytical framework; see footnotes 8 through 10
of this opinion; but reaching ultimately divergent conclusions.
FN12. We previously have defined "highest and best use" as "the use that will most
likely produce the highest market value, greatest financial return, or the most
profit from the use of a particular piece of real estate." (Internal quotation
marks omitted.) Metropolitan District v. Burlington, 241 Conn. 382, 390, 696 A.2d
969 (1997).
The plaintiff's experts, Grant and Kinnard, concluded in a joint report submitted into
evidence that the fair market value of the property was $13,825,000.
They arrived at
that conclusion by valuing the property at *19 $13,825,000 under the market sales
approach, [FN13] $13,800,000 under the income capitalization approach, [FN14] and
$14,100,000 under the cost approach. [FN15] The plaintiff's experts ultimately adopted
the value from the market sales approach as their conclusion because it was, in their
view, the "preferred approach" when "sufficient numbers of comparable sales transactions
data are available in appropriate quality and reliability."
FN13. Under their market sales approach, Grant and Kinnard analyzed nine sales of
improved industrial properties in northern central Connecticut between January,
1992, and September, 1995.
They then compared the properties to the plaintiff's
property, using adjustment factors for differences in the date of sale (market),
size, building age at date of sale, percentage of the building devoted to office
space, vehicular access, ceiling height, and the ratio of land area to building
area. Their comparable sales analysis showed the market value of the subject
property to be $50 per square foot, which computed to a rounded figure of
$13,825,000.
FN14. Under their income capitalization approach, Grant and Kinnard analyzed eleven
market rents from other industrial facilities in Connecticut that they considered
807 A.2d 955
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Page 9
comparable to the subject property.
They elected not to consider the property's
contract rent of $15.46 per square foot because, in their opinion, that figure was
"dramatically above the upper limits to the range of reported rentals in the entire
Greater Hartford Suburban Industrial Market Area, under market conditions as of the
October 1, 1995 Valuation Date."
FN15. Under their cost approach,
land and then used data from the
replacement cost of the building
$14,100,000 after adjustment for
Grant and Kinnard analyzed the value of the vacant
Marshall Valuation Service to compute the
itself, ultimately arriving at an estimate of
depreciation.
The defendant's expert appraisers, Kerin and Glendinning, performed their valuation
analysis using the same three approaches as the plaintiff's experts and concluded that the
property had a fair market value of $25,800,000 on October 1, 1995.
They did not utilize
a market sales approach because, in their opinion, the plaintiff's facility is a "limited
market" property with no comparable property sales at or near the valuation date.
Kerin
and Glendinning arrived at fair market values of $26,000,000 under the income **962
capitalization approach, [FN16] *20 and $25,700,000 under the cost approach, [FN17] which
they reconciled to their final estimate of $25,800,000.
FN16. The income capitalization approach of Kerin and Glendinning used a discounted
cash flow analysis to create a present value indication from the property's expected
future income.
The trial court noted that they considered discounted cash flow
analysis "most reflective of the valuation process a typical buyer utilizes when
contemplating the purchase of an income-generating investment property."
They
determined that the contract rent was in line with the rent charged for what they
deemed to be the only comparable property in Connecticut, namely, the Allied Signal
facility in Cheshire.
The trial court stated that it was particularly impressed
with this approach because it reflected the " 'arms length' " bargaining that occurs
between two knowledgeable and sophisticated parties, like the plaintiff and
Beckenstein.
FN17. The cost approach used by Kerin and Glendinning considered both the Marshall
Valuation Service data and the actual historic cost of construction.
The historic
cost analysis used the actual cost of construction from 1988, obtained from the
plaintiff's own data, and trended it forward to reflect a 1995 value.
The historic
cost analysis value differed from the estimate Kerin and Glendinning obtained using
the Marshall Valuation Service by less than 1 percent. Kerin and Glendinning then
added an estimate of entrepreneurial profit, 15 percent of total project cost, to
the construction cost to reflect the benefits and profits to the plaintiff as a
result of the facility's construction.
After adjustment for depreciation, the
value of the plaintiff's added improvements, and the value of the site itself, Kerin
and Glendinning arrived at a rounded value of $25,700,000.
The trial court adopted the opinion of the defendant's appraisers that a market sales
approach was inapplicable in this case because there were no comparable sales.
The court
deemed the plaintiff's experts' opinion to the contrary as "not credible."
The trial
court also determined that the income capitalization analysis of Kerin and Glendinning was
more credible, stating that "the rentals used by Grant and Kinnard involved properties
with dissimilar sizes and uses to the subject property."
Finally, the trial court found
the use by Kerin and Glendinning of the historic construction costs, in addition to the
Marshall Valuation Service data utilized by both sides in their cost approach analyses, to
be a more credible way to determine value.
See footnote 17 of this opinion.
The trial court concluded that the fair market value of the subject property on October
1, 1995, was *21 $22,636,600.
The court arrived at that figure by using the cost
807 A.2d 955
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Page 10
analysis of Kerin and Glendinning, substituting its own finding of the vacant land value
from Beckenstein's original purchase and omitting entrepreneurial profit. [FN18] The
court then concluded that its fair market value of $22,636,600 was "compatible" with the
town assessor's original appraisal of $22,236,770.
Accordingly, the trial court
dismissed the plaintiff's appeal after the five day trial, concluding that "[the
plaintiff] has not met its burden of showing that the property was overvalued."
FN18. The trial court stated that, in its opinion, entrepreneurial profit was
already incorporated into the rent and, therefore, did not need to be accounted for
separately in valuing the property.
On appeal, the plaintiff claims that the trial court's conclusion as to the highest and
best use was improperly restrictive because it failed to consider that the property could
be put to other industrial uses, forcing the court to ignore relevant market data in
contravention of General Statutes §§ 12-63 [FN19] and 12-63b when valuing the **963
property.
See footnote 5 of this opinion for the text of § 12-63b.
The plaintiff also
claims that the trial court improperly admitted the defendant's appraisers' report as
relevant evidence because it was based on an improperly restrictive highest and best use
standard.
The plaintiff further claims that the trial court improperly: (1) concluded
that the report satisfies the standards for admissibility of expert testimony under § 7-2
*22 of the Connecticut Code of Evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589-92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Porter, 241 Conn.
57, 69, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645
(1998); and (2) denied the plaintiff a meaningful opportunity to challenge the
admissibility of that report.
We disagree with the plaintiff's first two claims and
conclude that the latter claims were not properly preserved for appellate review.
Accordingly, we affirm the judgment of the trial court.
FN19. General Statutes § 12-63(a) provides: "The present true and actual value of
land classified as farm land pursuant to section 12- 107c, as forest land pursuant
to section 12-107d, or as open space land pursuant to section 12-107e shall be based
upon its current use without regard to neighborhood land use of a more intensive
nature, provided in no event shall the present true and actual value of open space
land be less than it would be if such open space land comprised a part of a tract or
tracts of land classified as farm land pursuant to section 12-107c. The present true
and actual value of all other property shall be deemed by all assessors and boards
of assessment appeals to be the fair market value thereof and not its value at a
forced or auction sale." (Emphasis added.)
I
The plaintiff's principal claim is that the trial court, when determining the highest and
best use of the property, arrived at an improperly restrictive conclusion because it
failed to consider that the property could be put to other industrial uses, thereby
forcing the trial court to ignore relevant market data in contravention of Connecticut
law.
We disagree.
A
[1][2][3][4] Before discussing the plaintiff's specific highest and best use claim, we
briefly explore the legal framework governing tax appeals taken pursuant to § 12-117a, as
well as the applicable standard of review.
In § 12-117a tax appeals, "the trial court
tries the matter de novo and the ultimate question is the ascertainment of the true and
actual value of the [taxpayer's] property.... At the de novo proceeding, the taxpayer
bears the burden of establishing that the assessor has overassessed its property."
(Citations omitted; internal quotation marks omitted.) Xerox Corp. v. Board of Tax
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 11
Review, 240 Conn. 192, 204, 690 A.2d 389 (1997); Ireland v. Wethersfield, 242 Conn. 550,
556, 698 A.2d 888 (1997); Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 104,
626 A.2d 1292 (1993); see *23Burritt Mutual Savings Bank of New Britain v. New Britain,
146 Conn. 669, 675, 154 A.2d 608 (1959).
Once the taxpayer has demonstrated
aggrievement by proving that its property was overassessed, "the trial court [will] then
undertake a further inquiry to determine the amount of the reassessment that would be
just." Ireland v. Wethersfield, supra, at 558, 698 A.2d 888. "The trier of fact must
arrive at [its] own conclusions as to the value of [the taxpayer's property] by weighing
the opinion of the appraisers, the claims of the parties in light of all the circumstances
in evidence bearing on value, and his own general knowledge of the elements going to
establish value...." (Internal quotation marks omitted.) Xerox Corp. v. Board of Tax
Review, supra, at 204, 690 A.2d 389.
[5][6] We review the trial court's conclusion in a tax appeal pursuant to the well **964
established clearly erroneous standard of review.
Under this deferential standard, "[w]e
do not examine the record to determine whether the trier of fact could have reached a
conclusion other than the one reached. Rather, we focus on the conclusion of the trial
court, as well as the method by which it arrived at that conclusion, to determine whether
it is legally correct and factually supported." (Internal quotation marks omitted.)
First Bethel Associates v. Bethel, 231 Conn. 731, 744, 651 A.2d 1279 (1995). "A finding
of fact is clearly erroneous when there is no evidence in the record to support it ... or
when although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed."
(Internal quotation marks omitted.) Melillo v. New Haven, 249 Conn. 138, 151, 732 A.2d
133 (1999); First Bethel Associates v. Bethel, supra, at 744, 651 A.2d 1279; Bugryn v.
Bristol, 63 Conn.App. 98, 103, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143,
cert. denied, 534 U.S. 1019, 122 S.Ct. 544, 151 L.Ed.2d 422 (2001). Accordingly, we will
review the trial court's thoughtful and comprehensive decision *24 in this tax appeal
utilizing the deferential clearly erroneous standard of review.
B
[7] The following additional facts are necessary for the resolution of the plaintiff's
claim.
At trial, the plaintiff's appraisers, the defendant's appraisers, and the court
utilized substantially the same standard [FN20] for determining the highest and best use
of the subject property as improved real estate. [FN21] The defendant's appraisers, Kerin
and Glendinning, were of the opinion that the property's best use, as improved, on the
date of valuation was "its continued present use as an industrial facility by [the
plaintiff] or some comparable entity taking advantage of the special-purpose improvements
in place."
They based that conclusion on: the fact that the property's improvements
were designed and constructed to the plaintiff's specifications; the continued legal
feasibility of the present use under East Windsor zoning laws; the continued financial
feasibility of the present use; and the fact that their highest and best use determination
reflects the "the market value contribution of the special-purpose features in the subject
property."
By contrast, the plaintiff's appraisers, Kinnard and Grant, reached a more
generalized highest and best use conclusion, which was the property's "continued *25 use
as an industrial manufacturing-repair-office facility with a single user-occupant."
In
arriving at their more general conclusion, Kinnard and Grant utilized the same factors and
made very similar observations as those of Kerin and Glendinning.
In its written
memorandum of decision, the trial court ultimately adopted a determination closer to that
of the defendant's appraisers, concluding that "the highest and best use of the subject
premises as **965 improved would be ... its continued use as an industrial facility as
presently used by [the plaintiff]."
FN20. Both the plaintiff's and the defendant's appraisers utilized the definition
807 A.2d 955
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Page 12
set forth in The Dictionary of Real Estate Appraisal (3d Ed.1993) p. 171, which
defines "highest and best use" as "the reasonably probable and legal use of vacant
land or an improved property, which is physically possible, appropriately supported,
financially feasible, and that results in the highest value."
The appraisers'
definition is virtually identical to the highest and best use standard utilized by
our courts.
See, e.g., Metropolitan District v. Burlington, 241 Conn. 382, 390,
696 A.2d 969 (1997).
FN21. The trial court also made a determination of the property's highest and best
use as vacant land.
That determination is not at issue in this appeal because the
parties and the trial court all agree that, the highest and best use of the property
as vacant land would be its development as a single tenant or owner occupied
industrial facility.
[8][9][10] A property's highest and best use is commonly accepted by real estate
appraisers as the starting point for the analysis of its true and actual value.
Metropolitan District v. Burlington, 241 Conn. 382, 390, 696 A.2d 969 (1997). "[U]nder
the general rule of property valuation, fair [market] value, of necessity, regardless of
the method of valuation, takes into account the highest and best value of the land."
(Internal quotation marks omitted.) Id. A property's highest and best use is commonly
defined as "the use that will most likely produce the highest market value, greatest
financial return, or the most profit from the use of a particular piece of real estate."
(Emphasis added; internal quotation marks omitted.) Id. The highest and best use
determination is inextricably intertwined with the marketplace because "fair market value"
is defined as " 'the price that a willing buyer would pay a willing seller based on the
highest and best possible use of the land assuming, of course, that a market exists for
such optimum use.' " Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 34, 633
A.2d 1368 (1993), quoting Mazzola v. Commissioner of Transportation, 175 Conn. 576,
581-82, 402 A.2d 786 (1978). The highest and best use conclusion necessarily affects the
rest of the valuation process because, as the major factor in determining the scope of the
market for the property, it dictates which *26 methods of valuation are applicable. [FN22]
Finally, a trier's determination of a property's highest and best use is a question of
fact that we will not disturb unless it is clearly erroneous. [FN23] See, e.g., Carol
Management Corp. v. Board of Tax Review, supra, at 38, 633 A.2d 1368; Stamford Apartments
Co. v. Stamford, 203 Conn. 586, 592, 525 A.2d 1327 (1987); Peter Rock Associates v. North
Haven, 59 Conn.App. 1, 4, 756 A.2d 290, cert. denied, 254 Conn. 933, 761 A.2d 754 (2000).
FN22. For example, an extremely narrow highest and best use conclusion might result
in a very small or even nonexistent market, thereby eliminating the availability of
market sales analysis as a useful valuation tool.
See J. Eaton, Real Estate
Valuation in Litigation (2d Ed.1995) p. 242 ("A special-purpose property is one with
a physical design peculiar to a specific use, no apparent market other than sale to
an owner-user, and no financially feasible alternative use.
The lack of comparable
sales data is generally the key in distinguishing a special-purpose property.").
FN23. The plaintiff argues that the trial court's highest and best use conclusion
violated the law because it was improperly restrictive, and urges that we apply
plenary review to the trial court's determination of the property's highest and best
use.
The plaintiff, however, acknowledges throughout its brief that the
controlling legal definitions and principles are generally not at issue in this
appeal.
Its arguments are "essentially factual, and recount the evidence and
arguments presented at trial." Newbury Commons Ltd. Partnership v. Stamford, supra,
226 Conn. at 98, 626 A.2d 1292.
Inasmuch as the plaintiff's arguments are grounded
in an attack on the trial court's factual analysis and conclusions, we, accordingly,
adhere to the clearly erroneous standard of review in our review of the trial
807 A.2d 955
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Page 13
court's highest and best use finding.
[11][12] In the present case, we conclude that the trial court's highest and best use
determination is not clearly erroneous.
The trial court carefully considered the
testimony and written reports of four expert appraisers. "It is well established that
[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific testimony.... The credibility and the
weight of expert testimony is judged by the same standard, and the trial court is
privileged to adopt whatever **966 testimony he reasonably believes to be credible.... On
appeal, we do not retry the facts or pass on the credibility of witnesses." (Citations
*27 omitted; internal quotation marks omitted.) Newbury Commons Ltd. Partnership v.
Stamford, supra, 226 Conn. at 99, 626 A.2d 1292. Furthermore, the trial court's findings
as to the property's special features as expressed in its written memorandum have strong
support in the record and in the reports of all the appraisers.
The court conducted an
exhaustive inquiry into the design and construction of the plaintiff's facility,
ultimately concluding, "we have a top of the line, class A building constructed in 1988
for the needs of a specific tenant ... [and] based upon all the factors discussed in this
opinion, as well as our analysis of the appraisers' efforts in determining valuation and
our own knowledge regarding values ... [the plaintiff] has not met its burden of showing
that the property was overvalued." (Citations omitted.)
The plaintiff's reliance on Commissioner of Transportation v. Towpath Associates, 255
Conn. 529, 767 A.2d 1169 (2001), and Connecticut Printers, Inc. v. Redevelopment Agency,
159 Conn. 407, 270 A.2d 549 (1970), for the proposition that the trial court improperly
failed to consider the marketplace in reaching its highest and best use determination, is
misplaced.
Both of those cases involved the well established proposition that in the
eminent domain context, the "special adaptability of land for a particular purpose" will
only be properly considered in valuation "if there is a reasonable probability that the
land could be so used within a reasonable time and with economic feasibility." (Internal
quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, supra, at
544, 767 A.2d 1169; see also Connecticut Printers, Inc. v. Redevelopment Agency, supra,
at 412-13, 270 A.2d 549.
In Towpath Associates, we reversed a trial court's
determination that the highest and best use for condemned land with an old bridge abutment
was a future use as a bridge site. Commissioner of Transportation v. Towpath Associates,
supra, at 554, 767 A.2d 1169.
We concluded *28 that the trial court's determination was
improperly speculative because there was no evidence that anyone other than the condemnor
would use the site for a bridge, and noted that even the two property owners in that case
no longer used their properties as bridge sites. Id., at 552-53, 767 A.2d 1169.
Similarly, in Connecticut Printers, Inc., the plaintiff wanted its building's special
features as a printing plant taken into account when valuing its property for purposes of
compensation after a governmental taking. Connecticut Printers, Inc. v. Redevelopment
Agency, supra, at 411-12, 270 A.2d 549.
The trial referee found that the building's
highest or best use could not be as a printing plant because "no printing or bookbinding
concern would build or lease a ... building of this type, at this location, on the date of
the taking." Id., at 413, 270 A.2d 549.
We deferred to the trial court's decision in
that case, concluding that it was supported by ample evidence. Id. In the present case,
the plaintiff's continued profitable use of its East Windsor property supports the trial
court's highest and best use conclusion.
We conclude that because the trial court gave
careful consideration to the expert testimony and reports, and its findings are amply
supported in the record, its highest and best use determination is not clearly erroneous
and will therefore not be disturbed on appeal.
II
[13] The plaintiff also claims that the trial court improperly admitted into evidence as
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 14
relevant the defendant's appraisers' report in that it was based on an **967 unduly
restrictive highest and best use standard.
We disagree with this claim.
[14] "It is well settled that the trial court's evidentiary rulings are entitled to great
deference.... The trial court is given broad latitude in ruling on the admissibility of
evidence, and we will not disturb such a ruling unless it is shown that the ruling
amounted to an abuse *29 of discretion." (Citation omitted.) Pestey v. Cushman, 259
Conn. 345, 368-69, 788 A.2d 496 (2002); State v. Copas, 252 Conn. 318, 326, 746 A.2d 761
(2000).
[15][16][17][18][19] The law of relevance is well settled. "Relevant evidence is
evidence that has a logical tendency to aid the trier in the determination of an issue....
[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if
it tends to support the conclusion [for which it is offered], even to a slight degree....
[T]he fact that evidence is susceptible of different explanations or would support various
inferences does not affect its admissibility, although it obviously bears upon its weight.
So long as the evidence may reasonably be construed in such a manner that it would be
relevant, it is admissible." (Internal quotation marks omitted.) State v. Copas, supra,
252 Conn. at 326-27, 746 A.2d 761. "Evidence is not rendered inadmissible because it is
not conclusive.
All that is required is that the evidence tend to support a relevant
fact even to a slight degree, so long as it is not prejudicial or merely cumulative."
(Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 686, 800 A.2d 1160
(2002).
The trial court plainly did not abuse its discretion by admitting the defendant's
appraisers' report into evidence.
In light of our holding in part I B of this opinion
that the trial court's finding as to the property's highest and best use was not improper,
the defendant's appraisers' report is logically relevant to the determination of the
property's value.
III
[20] The plaintiff further argues that the trial court improperly admitted the
defendant's appraisers' report into evidence because it did not satisfy the relevance and
reliability standards for admissibility of expert testimony under § 7-2 of the Connecticut
Code of Evidence, *30Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. at
589-92, 113 S.Ct. 2786, and State v. Porter, supra, 241 Conn. at 69, 698 A.2d 739.
The
plaintiff also claims that the trial court improperly denied it an opportunity to
challenge the admissibility of the report claim by failing to hold a meaningful hearing on
the issue and by refusing to allow it to file a motion in limine to preclude the report,
thus abusing its discretion by abandoning its Porter gatekeeping responsibilities.
We
decline to reach these claims because we find that the plaintiff did not properly raise
them in the trial court, thus leaving them unpreserved for appellate review.
[21][22][23][24] "The standard for the preservation of a claim alleging an improper
evidentiary ruling at trial is well settled.
This court is not bound to consider claims
of law not made at the trial.... In order to preserve an evidentiary ruling for review,
trial counsel must object properly.... In objecting to evidence, counsel must properly
articulate the basis of the objection so as to apprise the trial court of the precise
nature of the objection and its real purpose, in order to form an adequate basis for a
reviewable ruling.... Once counsel states the authority and ground of his objection, any
appeal will be limited to the ground asserted." (Internal quotation marks omitted.)
Pestey v. Cushman, supra, 259 Conn. at 365, 788 A.2d 496; **968State v. Bush, 249 Conn.
423, 427-28, 735 A.2d 778 (1999); see Practice Book § 5-5.
[25] Our review of the record indicates that, when the plaintiff objected to the
807 A.2d 955
(Cite as: 262 Conn. 11, 807 A.2d 955)
Page 15
introduction of the defendant's appraisers' report, it made absolutely no reference at any
time to the court's gatekeeping role under Porter when stating the basis for its
objection.
The plaintiff's arguments were not based on the rules of evidence, [FN24]
but, rather, on the highest and best use conclusion that *31 formed the basis for the
report.
The trial court did in fact permit the plaintiff to conduct a voir dire
examination of Glendinning, who coauthored the report.
The plaintiff confined that
inquiry to the highest and best use conclusion.
The closest the plaintiff ever came to
arguing a Porter issue during the trial was when it requested the court's permission to
reserve for a later time its right to make a motion to preclude. [FN25] Proper
preservation of claims for appellate review requires that "the trial court [be]
effectively ... alerted to a claim of potential error while there [is] still time for the
court to act." Pestey v. Cushman, supra, 259 Conn. at 367, 788 A.2d 496.
Because the
plaintiff failed to preserve properly these claims, we decline to review them.
FN24. We note that the plaintiff also failed to move for articulation of the
evidentiary grounds for the trial court's ruling or for any kind of limitation on
the use of the appraisers' report.
FN25. When the trial court denied the plaintiff's request, it stated: "I'm not
going to have the witness qualify as an expert witness, have his appraiser report
introduced, and then have you challenge whether or not that report should have been
introduced to begin with.
We'll deal with it now.
If you have any offer of proof
that this witness is violating the laws of the state of Connecticut, as you have
alleged, I'll hear ... your argument.
But I will not let this ... objection rest
to another time. I'll decide the issue right now."
The judgment is affirmed.
In this opinion the other justices concurred.
807 A.2d 955, 262 Conn. 11
END OF DOCUMENT
REST 2d TORTS § 930
Restatement (Second) of Torts § 930 (1979)
(Publication page references are not available for this document.)
Page 1
Restatement of the Law -- Torts
Restatement (Second) of Torts
Current through August 2003
Copyright © 1979-2003 by the American Law Institute
Division 13. Remedies
Chapter 47. Damages
Topic 3. Compensatory Damages For Specific Types Of Harm
§ 930. Damages For Future Invasions
Link to Case Citations
(1) If one causes continuing or recurrent tortious invasions on the land
the maintenance of a structure or acts or operations not on the land of the
appears that the invasions will continue indefinitely, the other may at his
recover damages for the future invasions in the same action as that for the
invasions.
of another by
other and it
election
past
(2) If the future invasions would not be enjoined because the defendant's enterprise is
affected with a public interest, the court in its discretion may rule that the plaintiff
must recover for both past and future invasions in the single action.
(3) The damages for past and prospective invasions of land include compensation for
(a) the harm caused by invasions prior to the time when the injurious situation
became complete and comparatively enduring, and
(b) either the decrease in the value of the land caused by the prospect of the
continuance of the invasion measured at the time when the injurious situation became
complete and comparatively enduring, or the reasonable cost to the plaintiff of
avoiding future invasions.
Comment on Subsection (1):
a. Damages for past invasions as the ordinary remedy. As in cases of isolated
incursions, such as a fire, flood or explosion, so when the wrong is a continuing one,
such as a dam producing recurring floods or a smelter sending over continual destructive
fumes, the normal remedy is to recover for harm flowing from the past invasions. Thus for
continuing wrongs the injured person can ordinarily bring successive actions for the
invasions or series of invasions as they occur. If the threat of continued invasions
appears merely transient, the assessment or successive assessments of damage merely on
this basis of past harms is adequate and practical.
b. Plaintiff's election to recover for future invasions. When the private structure or
enterprise that is producing the invasions is substantial and relatively enduring in
character and not readily alterable so as to avoid future injury, its maintenance or
operation ordinarily indicates that the owner intends to continue indefinitely to cause
invasions upon the neighboring land. "Indefinitely," as used in this Section does not mean
that the situation may be expected to last forever, but merely that there is no reason to
expect its termination at any definite time in the future. Under these conditions, relief
in the form of successive actions, repeated indefinitely, for invasions as they occur,
ceases to be adequate. The alternative of a suit for injunction is open to him, it is
true, and in such a proceeding he could obtain damages for harm that had already accrued.
(See § 951). But this relief is discretionary, and the burden of convincing the court that
Copr. © 2002 The American Law Institute.
Page 2
an enterprise, perhaps economically beneficial to the community, should be closed down, is
a difficult one. It is reasonable to allow him the option of seeking compensation based
upon the assumption that one who has created a damaging situation of substantial and
lasting character will maintain it for an indefinite time in the future. Consequently,
when it appears that the wrong will probably continue indefinitely, the person injured is
empowered to elect to be compensated once and for all, for the prospective invasions. This
is usually fined at the depreciation in the salable value of the land, as contrasted with
damages for past invasions of which the main item is usually the loss of the value of the
use or the loss of rental value during some past period.
As a foundation for the election, the pleading and proof must establish the enduring
character of the wrong, but the election may be made at the trial. Obviously, however, the
defendant is at liberty to dispute the averment that the situation is one that will
probably continue indefinitely as by proof that he has remedied the cause of harm or is
about to do so, and if the fact is so found, the plaintiff will be confined to damages for
past invasions.
The exercise of the power of election, followed by satisfaction of a judgment for
damages for prospective invasions, confers an easement or privilege to continue the
invasions thus paid for in advance. This power to transfer an interest in the land passes
to a grantee when the land invaded is conveyed. The grantor thereafter could recover only
for the invasions occurring before the conveyance.
c. Damage to neighboring landowners is frequently incident to the construction and
operation of establishments employed in necessary public service, which nominally have the
right of taking land by eminent domain. A railway embankment with an inadequate culvert
diverts water upon nearby land; a municipal electric plant sends smoke and fumes into
homes and factories; a city sewage disposal system pollutes a stream to the injury of
bordering landowners. If the damage results from some minor feature of construction or
management, so that it could be averted at slight expense, the normal remedy of successive
actions for past invasions or relief by injunction would alone be available, as is also
true if the harm results from an improper and unnecessary method of operation. But if the
invasions are caused by some substantial and relatively enduring feature of the plan of
construction or from an essential method of operation, then it will usually not be
abatable by injunction and the desirability of granting the injured person complete
compensation for past and future invasions is apparent.
Moreover, the public interest, which actuates the courts to deny an injunction
calculated to interfere with an essential public service, requires also that the utility
enterprise be permitted, when sued for past invasions, to have the court ascertain and
award complete compensation for the continuing injury, instead of awaiting successive
actions. This is most obviously true when the damage is a necessary incident of the lawful
operation of the enterprise, in which case the allowance of full damages has the effect of
the exercise of the power of eminent domain. Even when, however, the damaging feature
cannot be said to be authorized by law but it is incident to the use of the existing plant
and not avoidable by reasonable effort or expense, the court may determine that the public
convenience requires that the plaintiff submit to be compensated completely, once for all.
If the plaintiff sues for an injunction against an enterprise engaged in public
service, it is for the court to determine whether, upon a balance of individual and public
interests, the specific relief should be granted with compensation for past harms or
denied and complete compensation awarded for past and future invasions.
Page 3
d. Depreciation in the value of the damaged land is the usual standard of compensation
when the injured person recovers full damages for the continuance of the invasions.
Normally this will be gauged by calculating how much less a reasonable purchaser would
give for the land because of the prospect that the land would be subjected to the
invasions permanently or for an indefinite time in the future. Manifestly, this element of
depreciation is distinct from the loss in value brought by the actual effects of past
invasions (see Comment on § 929) such as damage by floods to the soil's fertility.
The former type of depreciation, due to the prospect of invasions, will often be
greater or less, according to the time fixed for contemplating the results of an imaginary
purchase. Obviously, the standard, to be fair to the injured person, must not look to a
time before the invasions have begun and the effects of the injurious conditions have been
revealed in their full extent. At the time when the injurious situation has become
complete and comparatively enduring, the amount of depreciation because of the prospect of
future invasion can be determined with greatest accuracy. That time also limits the period
for compensation for actual invasions; the invasions occurring prior to that time are
compensable but those happening thereafter are not. Thus no incentive is given to the
landowner to delay the time of making his election after the injury is complete.
Illustration:
2. The A company, making illuminating gas from coal, established its plant near B's
extensive greenhouse and florist establishment in 1930. The operations of the gas plant
began in 1931 and fumes and smoke invaded the greenhouse and damaged the flowers. This
damage, small at first, reached a peak in June, 1932, when the gas plant first began to be
operated to full capacity. It has since been carried on at the same level and the damage
to B's business has continued. In 1933 B sues A for damages and at the trial elects
complete compensation, once for all. B's damages will be measured by the loss of flowers
and loss of profits down to June, 1932, and in addition by the difference between what a
reasonable purchaser would have given for the property and business in June, 1932, in view
of the existing and prospective nuisance and what he would have given if it were not
there. No damages will be given for loss of flowers and profits from June, 1932, down to
the time of trial.
Case Citations
Reporter's Notes, Case Citations & Cross References Through December 1977
Case Citations 1978 -- June 1990
Case Citations July 1990 -- June 2002
Reporter's Notes, Case Citations & Cross References Through December 1977:
REPORTER'S NOTE
The Section has been reworded in the interest of clarity.
Comment b: Plaintiff's election to recover for future invasions. See Spaulding v.
Cameron, 38 Cal.2d 265, 239 P.2d 625 (1952); Kafka v. Bozio, 191 Cal. 746, 218 P. 753
(1923); Strange v. Cleveland, C.C. & St. L.R. Co., 245 Ill. 246, 91 N.E. 1036 (1910);
Ottumwa v. Nicholson, 161 Iowa 473, 143 N.W. 439 (1913).
Comment c: Defendant entitled to exercise eminent domain. See Reynolds Metals Co. v.
J.B. Wand, 308 F.2d 504 (9th Cir.1962); Caldwell v. Knox Concrete Products, Inc., 54
Tenn.App. 393, 391 S.W.2d 5 (1964); Cheskov v. Port of Seattle, 55 Wash.2d 416, 348 P.2d
673 (1960); Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969); Jost v.
Page 4
Dairyland Power Cooperative, 45 Wis.2d 164, 172 N.W.2d 647 (1969). Courts often talk here
only in terms of whether the structure was permanent.
Comment d: Measure of damages. With Illustration 1, compare Spaulding v. Cameron, 38
Cal.2d 265, 239 P.2d 625 (1952); Brown v. Virginia-Carolina Chemical Co., 162 N.C. 83, 77
S.E. 1102 (1913); City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57 (1931); Akers v.
Ashland Oil & Ref. Co., 139 W.Va. 682, 80 S.E.2d 884 (1954).
On costs of avoiding future invasions, see Nally & Gibson v. Mulholland, 399 S.W.2d 293
(Ky.1966).
COURT CITATIONS TO RESTATEMENT, SECOND
Tentative Draft 19
N.H.1973. Subsec. (1) cit. in sup. In an action for trespass brought by a landowner
against the owner of an adjoining airport who established a "clear zone" on plaintiff's
land, thereby destroying or removing shrubs and trees, boundary lines and fences, fouling
a brook, and creating a permanent nuisance from unreasonably low aircraft overflights, the
defendant appealed an adverse judgment on the ground, inter alia, that the verdict was
excessive. Where the wantonness of defendant's act allowed the compensatory damages to
reflect the aggravating circumstances and where there was evidence of the overflights'
interference with the use and enjoyment of plaintiff's entire residential estate, the
court held that plaintiff was entitled to compensation for the reduction in the fair
market value of his residential property for past, present, and future overflights. Morris
v. Ciborowski, 113 N.H. 563, 311 A.2d 296, 299.
N.H.1976. Com. (d) cit. in sup. Plaintiffs brought an action for trespass and nuisance
due to encroachment of buildings. Plaintiffs and defendants owned adjoining property.
Plaintiffs alleged that defendants' new addition to their hotel encroached on plaintiffs'
property, that the construction of the roof caused flooding on plaintiffs' land, and that
the air conditioners protruded over plaintiffs' property. The jury found for plaintiffs,
and the Supreme Court overruled defendants' exceptions. The court noted that though the
Restatement adopts the view that the test of damage is to be applied when the injurious
effects have been fully revealed, the trial court did not err in choosing the time of
trial test in its instructions. Though the trial court stated two measures of damage--the
difference in fair market value of plaintiffs' property before the trespass and the fair
market value after the trespass, and the difference in fair market value of plaintiffs'
property with the trespass and nuisance and without the trespass and nuisance, determined
as of the day of trial--the later was mentioned last, received the most emphasis by the
court, and did not mislead the jury. On rehearing the court affirmed the former result.
Soucy v. Royal, 116 N.H. 170, 359 A.2d 198, 200.
Cross References to
1. Digest System Key Numbers
C.J.S. Damages §§ 84, 88.
West's Key No. Digests, Damages
110.
Case Citations 1978 -- June 1990:
Cal.1985. Cit. in sup. Residents near an airport sued the airport authority for
inverse condemnation and nuisance caused by noise, smoke, and vibrations from flights over
their homes. The trial court sustained the airport's demurrers, holding that the airport
could not be liable for inverse condemnation because it lacked the statutory authority for
Page 5
eminent domain. The court further held that because this particular nuisance was not
subject to judicial abatement, it was a permanent nuisance upon which the statute of
limitations had run when the plaintiffs filed their claims. Reversing, this court held
that because condemnation was grounded on the constitutional proscription against taking,
it could not be limited by statute, and that the characterization of a nuisance as
permanent or continuing depended not on privilege, but on the type of harm suffered, and
in cases of doubt as to characterization, the plaintiff may elect. Baker v.
Burbank-Glendale- Pasadena Airport, 218 Cal.Rptr. 293, 705 P.2d 866, 871, cert. denied 475
U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986).
Idaho, 1983. Cit. in disc. in diss. op. The defendant had earlier given the plaintiff
permission to tap into its water line but later filed an action alleging that the
plaintiff was a trespasser. The earlier trial court dismissed the defendant's claims.
The defendant, purportedly revoking the plaintiff's license, then severed the plaintiff's
water connection. The plaintiff brought this action arguing that the defendant was
precluded from raising the revocation issue because of the earlier judgment's res judicata
effect. The defendant prevailed and the plaintiff appealed. This court affirmed, finding
that the actual severing of the water line was necessary before the issue of revocation
was judicially recognizable. A dissent noted that the defendant sought damages in the
first action up to the time the plaintiff's water line was disconnected. Such prospective
damages, while entirely proper, clearly showed that the defendant had considered and
addressed the revocation issue. Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P.2d 287,
295.
Miss.1987. Subsec. (3)(b) quot. in sup. A landowner sued a city for failing to
maintain a creek, resulting in erosion damage to the plaintiff's property. The trial court
found for the landowner and awarded him damages for both diminution in land value and the
cost of repair. Reversing on the damages issue, this court held that the landowner could
recover only the reasonable and necessary expenses incurred in his attempt to prevent
future damages, so long as those expenses did not exceed the diminution in value the
property would suffer if the preventive measures were not undertaken. City of Jackson v.
Keane, 502 So.2d 1185, 1188.
N.H.1979. Cit. in disc. and coms. (a) and (b) cit. in disc. Plaintiff littoral and
riparian owners brought suit against defendant town, which operated a sewage treatment
plant that discharged nutrient-laden effluent into a brook upstream from the riparian
owners. Plaintiffs sought recovery of damages on theories of private nuisance and inverse
condemnation. The jury returned a verdict for plaintiffs, and defendant's exceptions were
transferred by the superior court. The trial court did not allow the defense of the
statute of limitations, ruling instead that the condition in the lake was abatable. On
appeal, defendant argued that the trial court had erred in refusing to grant its motions
for directed verdicts, specifically asserting that the condition in the lake was permanent
and had become so more than six years prior to the commencement of the action, and that,
therefore, the present suit should have been barred by the statute of limitations. This
court overruled defendant's exceptions, holding that the lower court had been correct in
characterizing the nuisance as abatable and in allowing recovery for all past harm; thus
defendant's statute of limitations argument was rendered moot. Regarding the nature of
plaintiffs' remedy in private nuisance, the court stated that, although plaintiffs can
recover in one action for all harm sustained where the nuisance is characterized as
permanent, the general rule is that recovery may be had only for past harm, with the
injured party bringing successive actions to recover for injuries as they occur. Sundell
v. Town of New London, 119 N.H. 839, 409 A.2d 1315, 1320, 1321.
N.C.App.1983. Cit. in sup. A landowner brought an action against an oil company that
had constructed a refinery on adjacent property, obstructing the natural drainage of her
Page 6
property and causing water to pond on the property. The trial court granted the
defendant's motion for summary judgment, and this court reversed and remanded. The court
ruled that since the ponding of water on the plaintiff's property occurred irregularly and
variably, it was an intermittent trespass for which the plaintiff could recover any
damages suffered within three years prior to the filing of her action. The court also
instructed the trial court for remand that, should the plaintiff prevail below, she could
alternatively recover damages for the permanent injury done her property from a date three
years prior to filing and up to the instant date, especially if the court below decided
against ordering removal of the obstruction on the defendant's land. Galloway v. Pace Oil
Co., Inc., 62 N.C.App. 213, 302 S.E.2d 472, 476.
N.D.1985. Cit. in sup. After landowners had settled an action against adjacent
landowners for "actual and continuing" damages resulting from flooding of their property
due to the neighbors' unnatural condition of their land, they brought another action
against the same defendants alleging subsequent trespasses resulting from the continued
maintenance and improvement of the defendants' land. The trial court entered summary
judgment for the defendants on the ground that the action was barred by res judicata.
Affirming, this court held that the pleadings in the first action, which requested
continuing damages, constituted an election by the plaintiffs to seek recovery in a single
lawsuit for all past and future damages. Peacock v. Sundre Tp., 372 N.W.2d 877, 879.
Case Citations July 1990 -- June 2002:
C.A.6, 1997. Cit. generally in ftn., subsec. (1) cit. in headnote and quot. in disc.,
com. (a) quot. in disc. A landowner who alleged that a massive leak of uranium from a
nuclear processing facility had damaged and continued to damage his property sued the
former operator of the facility for continuing trespass. The district court dismissed on
limitations grounds. Affirming in part and reversing in part, this court held, inter alia,
that plaintiff stated a claim for continuing trespass, since, under Ohio law, a claim for
continuing trespass could be supported by proof of continuing damages and need not be
based on allegations of continuing wrongful conduct. Nieman v. NLO, Inc., 108 F.3d 1546,
1547, 1557.
C.A.10, 1994. Cit. in headnote but dist. An oil company, as holder of an oil and gas
lease on a property, sued owners of a portion of the property surface for a declaratory
judgment seeking a determination as to whether oil company would be liable to surface
owners if it built and operated a sour gas processing plant on the property. Owners
counterclaimed and brought third-party claims against two other oil companies alleging
nuisance. District court, among other dispositions, awarded future personal damages for
temporary nuisances. This court reversed in part and remanded, holding, inter alia, that
such future damages should not have been awarded and that plaintiffs' punitive damages
claim should not have been submitted to the jury. It noted that this case did not involve
changes in the value of real estate. Union Oil Co. of California v. Heinsohn, 43 F.3d 500,
501, 506.
N.D.Ga.1994. Quot. in case quot. in sup., subsec. (1) quot. in case quot. in sup. The
owner of commercial property located near an airport sued the airport for, among other
claims, taking of property and continuing nuisance, alleging that planes flew over his
property frequently and at close proximity, subjecting the property to high levels of
noise, dust, exhaust, and vibrations. This court granted in part and denied in part
defendant's motion for judgment on the pleadings, holding, inter alia, that plaintiff had
alleged a viable cause of action for continuing nuisance because, given that no clear rule
existed for distinguishing in specific cases between continuing and permanent nuisances,
plaintiff was allowed to choose how it wished to construe defendant's alleged nuisance.
Provident Mut. Life Ins. Co. v. City of Atlanta, 864 F.Supp. 1274, 1287.
Page 7
N.D.Ga.1995. Com. (c) cit. in disc. Owner of a commercial office complex that was in the
direct flight path of aircraft using a city's airport sued the city for nuisance, inter
alia, claiming that high levels of noise, dust, exhaust, and vibrations from the planes
had injured its use and enjoyment of its property. Granting defendant's renewed motion for
summary judgment, the court held, inter alia, that plaintiff's nuisance claim for
continuing harm was barred by the statute of limitations. The cause of action accrued on
plaintiff's receipt of its injuries, which were immediately apparent upon the initiation
of a particular runway's operation prior to the limitations period, and the extent of the
nuisance had not increased within the limitations period. Provident Mut. Life Ins. of
Philadelphia v. Atlanta, 938 F.Supp. 829, 833.
E.D.Tenn.1992. Quot. in sup., cit. in case cit. in sup. Property owners brought class
action against corporation which operated a pulp and paper mill on a river, asserting that
corporation was interfering with their property rights by contaminating the river with
toxic substances. This court denied defendant's motion to dismiss plaintiffs' claims for
permanent damages, holding, inter alia, that North Carolina nuisance law gave plaintiffs
the right to elect the type of damages, at trial, after the court had ruled on whether or
not to issue injunctive relief. If the court declined to enjoin corporation's anticipated
future invasions of their property, plaintiffs would elect to recover for both past and
future invasions in this single suit. Shults v. Champion Intern. Corp., 821 F.Supp. 517,
519.
D.V.I.1995. Cit. in headnote, com. (b) quot. in disc. and cit. in ftn. A lawsuit was
brought against, among others, a corporation in connection with the contamination of an
aquifer. This court denied the corporation's motion for summary judgment, holding, inter
alia, that fact issues existed as to whether the two-year statute of limitations
applicable to plaintiffs' claims had expired. The court was unable to determine on the
record whether the injuries resulting from the alleged continuing tortious conduct of the
corporation were temporary, indefinitely recurring, or permanent in nature. It stated that
so long as the injuries resulting from a recurring tort are temporary, the statute of
limitations will not begin to run regardless of the measure of damages sought by the
plaintiff. In re Tutu Wells Contamination Litigation, 909 F.Supp. 980, 981, 989, 990.
Mich.App.1991. Cit. in sup. A landowner sued an adjoining landowner for damages he
incurred as the result of defendant's lodge building encroaching on his land. As the
result of the encroachment, the plaintiff was unable to secure title insurance and
financing for a proposed project to erect multiple-unit dwellings on the property. The
trial court found in favor of plaintiff and, inter alia, awarded damages. This court
reversed the trial court's award of damages and remanded for trial on that issue. The
court stated that where, as here, the trespass was continuing, and the harm caused was
repairable, the appropriate measure of damages was the actual damages incurred, if
measurable. Those damages included the difference in value between the land before the
harm and after the harm, or the cost of restoration that may be reasonably incurred, and
the value of the lost use of the land and discomfort and annoyance to the landowner. The
court said that damage for lost use should include a reasonable rent on the real property
encroached upon, or the net rental loss where the trespass caused injury to rental
property, and lost profits. Kratze v. Independent Order of Oddfellows, 190 Mich.App. 38,
475 N.W.2d 405, 409.
(1979)
END OF DOCUMENT
Courier-Journal Local News
12/21/03 3:43 PM
The Courier-Journal
Monday, Aug. 9, 1999
LOCAL NEWS
Local News Index | Local News Archives
C-J Extra | The Courier-Journal Home Page
Suit over uranium plant brings action
Energy chief to visit workers; inquiry ordered
By JAMES MALONE, The Courier-Journal
PADUCAH, Ky. -- A lawsuit containing some of the most detailed and potentially
damaging allegations to date of problems at the federal government's uraniumenrichment plant near Paducah has revived hope among critics that officials may be
forced to confront a legacy of problems.
They expressed anger yesterday at the government and contractors it hired to run the
Paducah Gaseous Diffusion Plant in the past.
"You wouldn't know how my husband suffered," said Clara Harding, whose husband, Joe
Harding, died in 1980 of illnesses he contended were related to his exposure to
radiation at the plant.
Also yesterday, U.S. Energy Secretary Bill Richardson ordered an immediate
investigation of reports that thousands of unsuspecting employees at the plant were
exposed on the job to cancer-causing plutonium. He said that he would go to Paducah -though the time was not specified -- to meet with plant workers.
Richardson also said he would ask the National Academy of Sciences to investigate the
links between workers' illnesses and exposure to radiation that occurred over decades
at the plant.
In addition, Richardson called for expansion of a new program to provide health
screening and treatment to thousands of workers who might have been endangered at
Paducah and similar plants.
"I have long maintained that we must correct the sins of the past by compensating
workers who have been medically damaged," Richardson told The Washington Post
yesterday. "I don't want this to be known as the department of excuses."
Workers at the plant allege in a sealed lawsuit in federal court that radiation
contamination was widespread, persisting at the 47-year-old plant well into the 1990s,
the Post reported in a story also published yesterday by The Courier-Journal.
file://localhost/Users/davidsmith/Library/Mail/[email protected]/INBOX.mbox/Currier_-Journal.mimeattach/990809nuke.html
Page 1 of 4
12/21/03 3:43 PM
As a result, thousands of workers were exposed, without being told, to plutonium and
other highly radioactive metals, and contamination spread into surrounding land and
water, the newspaper reported.
THE LAWSUIT
was filed in June against Lockheed Martin and Martin Marietta, which managed the plant
for the government during the 1980s and 1990s, the Post said. The suit does not target
the plant's original manager, Union Carbide. The Post said none of the three companies
would comment on the suit.
The suit was filed as a whis-tle-blow-er action by three management workers now at
the plant, Ronald Fowler and Charles Deuschle of Paducah and Garland "Bud" Jenkins of
Benton. Fowler and Jenkins declined to comment yesterday. Deuschle could not be
reached.
The suit was filed under seal to give the Justice Department an opportunity to decide
whether to join the suit or begin a criminal investigation, the Post reported.
Al Puckett said the suit confirms his suspicions about the plant. Puckett, who worked at
the plant 12 years and lives in nearby Kevil, said his well water was contaminated with
waste from the plant but officials there covered it up.
"That's the way they operated," said Puckett, who is one of several of the plant's
neighbors suing its previous operators over alleged contamination of land and water.
AS A RESULT
of the Post's story, "I suspect a lot of people will be more suspicious; I was suspicious
all along," Puckett said.
Though the plant's mission is to enrich uranium -- a mildly radioactive metal -- uranium
ore was scarce in the early years after the plant was established, the newspaper
reported. So the government relied on leftover uranium from weapon production at
other plants and that apparently contained far more dangerous elements, including
plutonium, it said.
News organizations, including The Courier-Journal, have reported on numerous
environmental problems at the plant.
Yesterday, the Energy Department, which is responsible for the environmental cleanup
at the plant, issued a written statement from site manager Jimmie Hodges that said a
DOE review of "DOE-controlled areas" at the plant found that "there are no imminent
threats to the public health, worker safety or the environment."
Hodges was unavailable for interviews and did not respond to a telephone message left
at his home.
David Fuller, president of Local 3-350 of the Paper, Allied Industrial, Chemical and
Page 2 of 4
12/21/03 3:43 PM
Energy Workers Union, which represents hourly workers at the plant, said he was
stunned by the Post's story.
"I reacted with some degree of surprise and shock -- and if the reports are true, we've
been exposed to plutonium contamination," he said. "I've been there for 31 years, and I
did not know that. It's kind of scary to learn that in this way."
The question for workers and the government now is, "What are we going to do from
here?" Fuller said. "The department needs to take responsibility to help workers pol-icywise and moneywise . . . if they've insulted the environment and hurt workers and
caused illness."
ENERGY
Department spokesman Steve Wyatt said "there are various estimates" of plutonium
discharges at the plant. Asked whether the department has misled workers or the public
about the health effects, he said, "I don't think so."
Clara Harding said the new allegations further indicate that the government knew the
dangers of what was going on at the plant "but wasn't telling the truth."
Her husband sometimes came home with dust on his work clothes, and he would say: "
'It's the stuff I wade in. I work in it. I eat it,' " she said.
After fighting the government in court for a decade, seeking compensation for her
husband's death, she said she ended up with about $9,000 in workers' compensation.
Merryman J. Kemp, a Paducah financial adviser and member of the uranium plant's
community advisory board, said after reading the Post's story: "It says what I've
thought to be true. . . . I've been concerned about it for years."
The plant was built in 1952 at the height of the Cold War to enrich uranium for nuclear
weapons. It later was converted to enrich low-grade fuel for nuclear power plants. It's
currently operated and managed by the United States Enrichment Corp.
Throughout its history, the plant has been a key employer in Western Kentucky. It
currently has about 1,600 workers, down from a peak of about 2,200 a decade ago.
FOUR DECADES
of nuclear production has wreaked havoc on the environment, and the government has
estimated it could cost hundreds of billions of dollars to clean up.
Problems include contaminated landfills, buildings and ground water, stored waste and a
plume of underground water that is moving toward the Ohio River and has cancercausing solvents and low-level radiation.
The Courier-Journal reported three years ago that plutonium had been discovered in
deer killed near the plant.
Page 3 of 4
12/21/03 3:43 PM
In 1996, Vickie Jones, who then coordinated the annual environmental report for the
plant, said she had told her superiors about the plutonium in the deer taken in 1994.
She said at the time that the amounts found were not a problem and officials did not
order further inquiry.
In 1997, some residents of the area sued the plant's then-operator, Lockheed Martin,
and its former operator, Union Carbide, over alleged contamination of water and land.
That suit alleged that the plant's operators had tried to deceive the public about the
dangers of possible off-site pollution and contaminated water wells. Plant spokesmen
denied the allegations.
That lawsuit is still unresolved.
The Washington Post contributed to this story.
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Page 4 of 4
In Harm's Way, And in the Dark; Workers Exposed to
Plutonium at U.S. Plant:[FINAL Edition]
Joby Warrick. The Washington Post. Washington: Aug 8,
1999. pg. A.01
Full Text (4450 words)
Copyright The Washington Post Company Aug 8, 1999
Thousands of uranium workers were unwittingly exposed to
plutonium and other highly radioactive metals here at a federally
owned plant where contamination spread through work areas, locker
rooms and even cafeterias, a Washington Post investigation has
found.
Unsuspecting workers inhaled plutonium-laced dust brought into the
plant for 23 years as part of a flawed government experiment to
recycle used nuclear reactor fuel at the Paducah Gaseous Diffusion
Plant, according to a review of court documents, plant records, and
interviews with current and former workers. The government and its
contractors did not inform workers about the hazards for decades,
even as employees in the 1980s began to notice a string of cancers.
Radioactive contaminants from the plant spilled into ditches and
eventually seeped into creeks, a state-owned wildlife area and
private wells, documents show. Plant workers contend in sealed
court documents that radioactive waste also was deliberately
dumped into nearby fields, abandoned buildings and a landfill not
licensed for hazardous waste.
The sprawling Kentucky plant on the Ohio River represents an
unpublished chapter in the still-unfolding story of radioactive
contamination and concealment in the chain of factories across the
country that produced America's Cold War nuclear arsenal. Opened
in 1952 in an impoverished region, the 750-acre plant built a fiercely
loyal work force of more than 1,800 men and women who labored in
hot, stadium-sized buildings turning trainloads of dusty uranium
powder into material for bombs.
Today, the Department of Energy contends that worker exposure
was minimal and that contamination is being cleaned up. A lawsuit
filed under seal in June by three current plant employees alleges
that radiation exposure was a problem at Paducah well into the
1990s.
The Post's investigation shows that contractors buried the facts
about the plutonium contamination, which occurred from the
mid-1950s to the mid-1970s, in reports filed in archives. Plutonium,
a core ingredient in nuclear bombs, is a highly radioactive metal that
can cause cancer if ingested in quantities as small as a millionth of
an ounce. The Paducah plant was designed to handle only uranium,
a mildly radioactive metal.
"The community to this day has no idea of the kinds of contaminants
they were exposed to," said James W. Owens, a Paducah lawyer
representing residents whose water has been polluted by the plant.
Health consequences remain unclear. No comprehensive study of
worker medical histories has been attempted at Paducah. In
neighborhoods where older workers live, stories abound of cancer
clusters and unusual illnesses. One 20-year veteran worker who died
in 1980 compiled a list of 50 employees he worked with who had
died of cancer.
"Everything was so safe, so riskless," the worker, Joe Harding, said
in an interview just before his death. "Today we know the truth about
those promises. I can feel it in my body."
Even though the plant's procedures and purpose have changed -Paducah's enriched uranium is now used in commercial nuclear
power plants -- problems have continued. Workers weave between
makeshift fences that cordon off hundreds of radioactive "hot spots"
scattered across the complex. In one corner of the plant, mildly
radioactive runoff trickles from a nearly half-mile-long mound of
rusting barrels that still contain traces of uranium.
"The situation is as close to a complete lack of health physics as I
have observed outside of the former Soviet Union," Thomas
Cochran, nuclear program director for the Natural Resources
Defense Council, said in documents filed in the lawsuit.
The Department of Energy, which owns the plant, said it could not
comment on allegations made in the suit because of the
court-ordered seal. The agency is investigating the charges and
dispatched a team to Paducah to determine if conditions posed an
immediate threat to workers or the public.
Energy Secretary Bill Richardson said the agency's national security
goals had "sent many of our workers into harm's way," but he said
the agency must now live up to its responsibility to "right the wrongs
of the past." Two weeks ago, Richardson pledged millions of dollars
for medical monitoring of nuclear workers who were exposed to
beryllium, a highly toxic metal.
"The Department of Energy will continue to take any actions that are
necessary to ensure the protection of public health, the workers and
the environment," he said.
Still, agency officials, in a written response to questions from The
Post, strongly defended past safety practices at Paducah and said
no workers are at risk today.
"The plant's monitoring data did not indicate an accumulation of
{plutonium and other highly radioactive wastes} in the workplace or
the environment that would be a health concern to workers or to the
public," the DOE said.
That position is vigorously contested in more than 2,000 pages of
documents filed in the lawsuit by two of the plant's health physicists,
or radiation safety experts, and a veteran worker who had his
esophagus removed after three decades of work inside contaminated
buildings. Copies of the documents were obtained by The Post from
government sources.
"The management line for years has been there was an insignificant
amount" of plutonium at Paducah, said Mark Griffon, a health
physicist at the University of Massachusetts at Lowell who is
participating in a federal study of radiation conditions at nuclear
weapons plants, including Paducah. Griffon reviewed plant
documents provided by The Post.
"If the levels were this significant," he said, "it raises an important
question: Why weren't workers ever monitored?"
The two health physicists suing the plant say in court documents
they tried to call attention to the radiation problems but were
confronted by a culture of unconcern.
"I was told by my superior . . . in so many words that `this is
Paducah -- it doesn't matter here,' " said one of the physicists,
Ronald Fowler, 50, who came to the plant in 1991.
The suit was brought under a law that allows employees to collect
payment for exposing fraud against the government. It was filed
under seal to give Justice Department officials an opportunity to
decide whether to join the suit or begin a criminal investigation.
The suit names Lockheed Martin and Martin Marietta, which
managed the uranium enrichment plant during the 1980s and 1990s.
It does not name the original manager, Union Carbide, which ran the
facility for a 32-year period during which the bulk of the
contamination occurred. None of the companies had been served
with the suit and none would comment on the allegations.
The current plant operator, U.S. Enrichment Corp., a governmentchartered private company that assumed management this year,
concedes past problems but says safeguards are now in place.
USEC, which sold shares to the public last year, says it has fully
disclosed the plant's environmental problems to regulators, workers
and stockholders.
"It was acknowledged by all sides that contaminated conditions
existed, . . . but USEC wasn't responsible for them," said Jim Miller,
USEC executive vice president.
Paducah is the latest DOE facility to be rocked by lawsuits and
revelations of contamination. Cleaning up the complex is expected
to cost $240 billion and take at least 75 years.
Measured by the gram, the contamination at Paducah isn't nearly as
extreme as that in plutonium production plants such as Washington
state's Hanford Nuclear Reservation, where vast swaths of land have
been sealed off from humans. But unlike the workers at those
plants, employees at Paducah did not know of the risks in the
uranium dust they breathed every day.
Worker exposure to such dust has cost the government in the past.
The Energy Department paid a $15 million settlement five years ago
to former workers who had breathed uranium dust at the Fernald
Feed Materials Production Center near Cincinnati.
The difference between the dust at Fernald and that at Paducah
comes down to one word: plutonium.
For 2 Decades, Freight Cars
Brought Unknown Danger
The Paducah complex was the second of three U.S. government
plants designed after World War II to create enriched uranium. The
plants were operated for the government by private contractors who
over time were paid bonuses for running safe, efficient facilities.
In the beginning, uranium ore was scarce. The Atomic Energy
Commission, forerunner of today's Energy Department, tried to fill
the gap by "recycling" leftover uranium -- from nuclear reactors that
made plutonium for bombs -- through the enrichment process at
Paducah.
From 1953 to 1976, more than 103,000 metric tons of used uranium
was shipped to Paducah, records show. It arrived in freight cars as a
fine black powder. Unknown to workers, the powder contained
dangerous substances left over from the plutonium-making process
-- fission byproducts such as technetium-99 and heavy metals known
as "transuranics": neptunium and plutonium.
"Plutonium is roughly 100,000 times more radioactive per gram than
uranium," said Arjun Makhijani, president of the Institute for Energy
and Environmental Research.
Over time, through spills and waste discharges, the contaminants
accumulated in the miles of pipes used to gasify and enrich
uranium, around loading docks and in ditches, documents show.
Plant officials were aware of the plutonium and other contaminants
as early as the mid-1950s -- it made their recycled uranium less
efficient. But they believed the amounts were too small to pose a
health threat.
Today, the DOE is able to rely only on a contractor's estimate of the
total amount of contaminants introduced in that period: 12 ounces of
plutonium, 40 pounds of neptunium and 1,320 pounds of technetium99.
The government today takes the same position as it did in the
1950s: The amounts were most likely not enough to harm workers.
"The general protection provided to workers from the hazardous
effects of uranium would have provided adequate protection" from
the contaminants, the DOE statement said.
But documents obtained by The Post show that plant officials
became increasingly concerned about the contaminants. A 1992
report by Martin Marietta concluded that they caused "significant"
environmental problems and "also pose a radiation hazard to the
workforce." A 1988 study done for the DOE by a private contractor
said the plutonium could "represent a significant internal dose
concern even at very low mass concentrations."
Plant records draw an instructive comparison that underlines the
hazards posed by plutonium: The 12 ounces of plutonium in the
black powder delivered more than twice as much radiation into the
environment as the 61,000 pounds of uranium that flowed out of the
plant in waste water into the Ohio River between 1952 and 1987.
Bosses Took Threat
With a Grain of Salt
In the noisy, cavernous buildings where uranium was processed,
workers did not receive the warnings. The conditions there were
"extremely dusty . . . sometimes to the point where it was very
difficult to see or breathe," said Garland "Bud" Jenkins, 56, a 31year-veteran uranium worker and one of the three employees
involved in the lawsuit against Lockheed Martin.
To protect their skin from the uranium dust, workers wore cotton
coveralls and gloves. But respiratory protection was optional -- old
Army gas masks, which fit poorly and were seldom used, former and
current workers said.
At lunchtime, workers brushed black powder or green uranium dust
off their food. "They told us you could eat this stuff and it wouldn't
hurt you," said Al Puckett, a retired union shop steward. To
dramatize the point, he said, some supervisors "salted" their bread
with green uranium dust.
The workers took the dust home at shift's end.
"We frequently discovered that our bed linens would be green or
black in the morning, from dust that apparently absorbed into our
skin," Jenkins said.
Exposure to uranium dust decreased after the late 1970s, when the
plant stopped receiving the black powder and began processing a
more refined form of uranium. In 1989, the DOE adopted more
stringent worker safety rules.
By then the plutonium had permeated the land around the plant. In
the 1960s and 1970s, when the powder spilled, workers would
shovel it up and wash the remnants into the nearest ditch, Jenkins
said. More than a dozen ditches flow directly from the plant onto
state property and private lands.
There are no nationwide limits for plutonium in soil; cleanup
standards depend on modeling the degree of public access to the
contaminated spot. But the DOE has set cleanup limits at nuclear
blast sites in the South Pacific of 15 picocuries of plutonium per
gram of soil.
Contractors measured plutonium at levels up to 47 picocuries in
ditches outside the plant and 500 picocuries on plant grounds.
Those measurements were made after the first evidence of
environmental problems outside the plant surfaced in 1988, when a
county health inspector found technetium and chemical carcinogens
from the plant in a farmer's well. The discovery of the poisoned wells
prompted a multimillion-dollar ground-water cleanup under the
Environmental Protection Agency's oversight.
Although plant managers posted creeks and ditches with warning
signs in the early 1990s, the signs do not refer to plutonium or any
other radioactive contaminants. Some warn of possible
contamination with cancer-causing chemicals; others merely caution
against eating local fish.
Lawsuit Alleges
Deliberate Dumping
In addition to the substances that flowed or spilled out of the plant
through the drainage ditches, the employees contend in their lawsuit
that a wide variety of contaminated substances were deliberately
dumped into the environment. Spilled black powder and empty
radioactive waste containers allegedly were placed in dumpsters and
trucked to a sanitary landfill on DOE property licensed only for trash
and garbage. Rubble from demolished buildings and contaminated
railroad ties allegedly were dumped in nearby woods and fields. Slag
from uranium smelters was put in abandoned concrete bunkers in a
state wildlife area outside the plant, according to the lawsuit.
"There was only one dumpster for all waste, whether radioactive,
hazardous, toxic or ordinary," Jenkins said.
Plant records describe at least two dozen unlicensed radioactive
debris piles on state lands outside the plant. Last year, groundwater tests turned up technetium directly beneath the sanitary
landfill.
A 1990 DOE audit of Paducah found inadequate controls over waste
disposal and a faulty system for tracking contamination that forced
managers to rely on "word of mouth."
Charles Deuschle, 56, a health physics technician and the third
employee in the lawsuit, said he was "shocked" when his surveys
discovered radioactive contamination in such places as the plant's
cafeteria.
"I saw conditions that would never have been tolerated in any other
nuclear location where I have worked," Deuschle, who came to
Paducah in 1992, said in court documents.
Internal plant surveys included in the suit found high levels of
radiation on street surfaces, manhole covers and loading docks and
in locker rooms as recently as 1996.
The plant's current managers maintain that all significantly
contaminated areas have been addressed. "Hot" surfaces have been
coated with absorbent paint, and warning signs have been posted,
they said. Rope fences keep passersby away from radioactive
equipment rusting in the open. Drain pipes and fire hydrants are
coated with warning paint. Two dilapidated buildings where the black
powder was once processed are padlocked. In 1997, regulatory
oversight of the plant was transferred to the Nuclear Regulatory
Commission, which declined to comment on allegations in the sealed
lawsuit.
Even the employees involved in the suit concede that safeguards
have improved recently. But they insist that problems remain. This
spring, elevated radioactivity was found in a parking area near the
administration building, plant documents show.
Soil collected from a ditch outside the plant's fence by The Post in
June and analyzed at a commercial lab contained 2.6 picocuries of
plutonium, slightly higher than the NRC's suggested guideline for
cleaning up nuclear sites.
The Post, using two hand-held detectors, also found sharply
elevated radiation levels in the debris piles on the state wildlife
lands. One such area was an unmarked pile of rotting railroad
timbers near fishing ponds and campgrounds.
Public Reports Tell
Only Part of the Story
Environmentalists, plant workers and neighbors claim that plant
officials play down the hazards.
"They cloak it in jargon," said Mark Donham, a member of a citizens
advisory board that meets monthly with plant cleanup officials. "You
have to order the documents and then spend hours and hours
looking at them to learn anything."
DOE officials say the facts and figures about the plutonium
contamination inside the plant have been duly recorded since 1991
in thick inspection reports. But these are kept in archives rarely
visited by the public.
In the annual environmental reports that circulate to the public, the
contamination is described as "trace" amounts of "radionuclides," a
catchall term that can include mildly radioactive uranium as well as
highly radioactive plutonium.
A 1991 "site investigation" report, done by the plant's contractor and
stored in the archives, shows much higher levels of plutonium than
the annual environmental reports. The DOE said the reports use
different methods and measure different things.
The result has been that the DOE can claim full disclosure about the
contamination while plant workers and neighbors remain in the dark,
said Owens, the attorney for the plant's neighbors.
"The company has engaged in a cynical disinformation campaign
that centered on downplaying risks and presenting confusing and
misleading information," he said.
Inside the plant, the first disclosure of plutonium to workers came
around 1990 after managers summoned top union leaders to discuss
the results of tests ordered after the state found the poisoned wells.
"They took it seriously," a union official, speaking on the condition of
anonymity, said of Martin Marietta's presentation. But "the health
effects weren't viewed as serious. We just vehemently stressed that
the contamination should be cleaned up."
Plant managers insist that workers today are fully aware of the
potential hazards. USEC cites worker training programs that it says
include a briefing on plutonium and other radioactive hazards at the
plant.
But officials with the union's Washington office contend workers still
don't know a fraction of what they were exposed to. "What we're
seeing now," said Daniel Guttman, former staff director of the federal
Advisory Committee on Human Radiation Experiments, "is the
outcropping of the glacier."
Deficient Monitoring
Compounded the Risk
The health effects for Paducah workers remain an open question.
The DOE said 442 Paducah workers were tested in 1997 and only 8
percent displayed measurable amounts of radiation. It said screening
tests since 1992 have found no evidence of plutonium exposure in
workers.
But the greatest exposure to workers would have occurred before
the enhanced monitoring that began in the late 1980s.
In 1990, the DOE audited safety practices at Paducah and found
scores of deficiencies in radiation monitoring and worker protection.
The audit team said Paducah failed to properly monitor radiation to
workers' internal organs -- even though plant managers had been
repeatedly warned to do so.
Radiation-measuring equipment was either missing or not properly
calibrated, the report said, and workers weren't being tested for the
kinds of radiation known to exist at Paducah. Whether the plant's
equipment and personnel were even capable of detecting exposure
to plutonium and other transuranics was "questionable," the audit
said.
Bolstering claims by workers that they had been left in the dark
about radioactive hazards, the report found no mention of
transuranics in plant safety procedures.
"Onsite environmental radiological contamination conditions are
largely unknown," the report said. "A formal program with welldefined monitoring, sampling and analysis requirements does not
exist."
Independent experts are investigating Paducah as part of two
national studies of environmental and safety issues in the U.S.
nuclear weapons complex. Both studies are relying primarily on data
supplied by the plant. Officials brought in two years ago to review
past radiation hazards told The Post they were not informed that
Paducah workers may have been exposed to significant amounts of
plutonium.
Neither was Harold Hargan, a plant worker for 37 years. Hargan was
one of about six workers who he says were told in 1990 that a test
had found plutonium in their urine.
"It surprised me. Hell, it surprised the doctor," Hargan said.
"Everybody knew there was no plutonium at Paducah."
What Happened Inside the Plant
Uranium is a naturally radioactive element that comes mainly in two
forms, or isotopes: uranium-238 and a small amount of uranium235. Only U-235 is fissile, or capable of being split in a nuclear chain
reaction. To make bombs or nuclear fuel, uranium must be
"enriched" by increasing the proportion of U-235.
The Mission: Uranium Enrichment
1. Uranium ore from mines is milled in a process to extract uranium
oxide, known as yellowcake. The yellowcake is sent to Paducah.
2. At the Paducah plant, yellowcake is burned with hydrogen to form
uranium dioxide, a black powdery substance called "black oxide."
3. The black oxide is mixed with hydrofluoric acid to make uraniun
tetrafluoride, known as greensalt.
4. The greensalt is burned with fluorine to make uranium
hexafluoride
Since the late 1970s, Paducah has purchased uranium hexafluoride
from other companies. Today, the enrichment process begins here.
5. Finally comes the gaseous diffusion process for which the plant is
named: The liquid uranium hexafluoride is heated and passed
through a series of barriers, which separate and concentrate the U235 isotope. The low-enriched uranium is condensed to a solid and
packed into drums for shipping.
The enriched uranium is shipped to another plant for further
enrichment to make commercial nuclear fuel. In the past, some was
converted to highly enriched uranium for bombs.
4%-5%U235 Nuclear fuel for power plants
90%U235 Nuclear weapons
Enormous amounts of uranium are left over after enrichment.
The processes used at Paducah also can move backward, turning
uranium hexafluoride back into greensalt, or into depleted uranium
metal for use in armor-piercing munitions or armor plating.
Uranium hexafluoride mixed with magnesium yields
greensalt,uranium metal and slag.
Contamination Spreads
Beginning about 1953, uranium from spent nuclear fuel was sent to
Paducah to be enriched. Each shipment contained small amounts of
plutonium and other radioactive contaminants.
Worker exposure
Processing uranium generated large amounts of contaminated
airborne dust inside the buildings. Also, radioactive material often
was spilled, then swept up by hand, hosed into gutters or placed in
regular trash receptacles, whistle-blowers say.
Workers carried uranium home on their skin and clothes.
Metals Recovery
Old nuclear warheads were dismantled at Paducah, where the
radioactive material was extracted and gold and other precious
metals were recovered.
The recovered gold was melted into bars. Whistle-blowers allege
some was shipped away without being measured for radiation.
Tens of thousands of drums used to ship uranium are stored
outdoors at the plant. Many drums still contain radioactive material.
This "depleted" uranium -- still radioactive -- is stored in tens of
thousands of cylinders in open lots.
The plant continues to store significant amounts of various
recovered metals deemed too contaminated to ship.
The concrete-like gray slag, a contaminated
byproduct of the process, allegedly was trucked to sanitary landfills
and dumped in public areas near the plant. Large amounts of
contaminated slag remain on the site.
Hazards Inside the Plant
For decades, plutonium and other radioactive hazards quietly spread
through this Kentucky uranium plant, exposing unsuspecting workers
to an invisible and potentially lethal threat. Red areas on this
diagram denote contamination that was detected around the main
work areas in 1992.
`Barrel Mountain': A nearly half-mile mound of large piles of rusted
metal scrap and other waste materials, some of it contaminated.
Classified burial ground: This landfill contains nuclear weapons
components. Workers who dismantled weapons may have been
exposed to beryllium, a highly toxic metal.
Burial pits: Enormous amounts of radioactive material lie in shallow
landfills on plant grounds, and some are believed to be leaching into
ground water. One pit contains hundreds of barrels of a highly
flammable form of uranium stored in PCB-tainted oils.
Waste-water discharges: Company documents acknowledge the
release of tens of thousands of pounds of uranium into creeks. Toxic
chemicals and metals also were discharged in waste water.
Dirty runoff: Rain washes uranium and other hazards into ditches
that flow past outdoor scrap yards. Some of the ditches are posted
as radioactive inside the plant fence, while just outside the fence
there are no such warnings.
Fouled ditches: Uranium, plutonium and other radioactive materials
were flushed into ditches, such as this one, that flow into tributaries
of the Ohio River. A test commissioned last month by The
Washington Post found plutonium here. Earlier tests of the ditch
inside plant grounds found plutonium at a level 100 times above
what the government certifies as safe.
One of the most contaminated buildings still in use, C-400 contained
chemical solvent tanks for cleaning radioactive equipment. Workers
this year found an old canister that contained radioactive technetium
at levels millions of times above the safety standard.
Outdoor hazards: Plant officials recently discovered radioactive
contamination in this gravel parking lot near the main administration
building. Dozens of "hot spots" around the plant grounds mark the
sites of old spills or dumps.
Buildings 410 and 420: Hundreds of workers were exposed to
radioactive dust in these buildings, which were used to process
uranium before enrichment.
Contaminated buildings: Elevated radiation levels have been found in
hundreds of areas frequented by workers, including a cafeteria.
Tainted wells: Two large plumes of contaminated ground water
extend more than a mile north of the plant into residential
neighborhoods. The water is contaminated with chemical and
radiological wastes.
Cylinder piles: More than 30,000 metal tanks containing a toxic mix
of depleted uranium and fluorine are stacked in open lots. Until
recently, some were stored in a nearby residential neighborhood.
Process buildings: The heart of the plant, these stadium-sized
buildings now enrich uranium for commercial nuclear fuel. The truck
alleys along the sides of each building are contaminated from spills
during deliveries.
Chemical spills: Thousands of gallons of toxic chemicals -- including
suspected carcinogens -- were released into the environment in a
series of leaks and spills. Some ended up in nearby creeks.
Airborne releases: Exhaust fans vented radioactive dust into the
atmosphere. Workers say the biggest releases were always at night.
Switchyards: The plant requires enormous amounts of electricity -two generating plants are dedicated to its needs. As recently as
1996, the plant also was the nation's largest single emitter of freon,
the coolant blamed for damaging the Earth's ozone layer.
SOURCES: "Radiological Survey of Selected Outdoor Areas,
Paducah Gaseous Diffusion Plant, Paducah, Kentucky," prepared by
Oak Ridge Associated Universities, April 1992; Washington Post
research. Satellite photo from U.S. Geological Survey.
Spreading Toxins
Radioactively contaminated slag and rubble from demolished
buildings was dumped outdoors in more than two dozen places
around the plant. For decades, waste water containing uranium,
plutonium and cancer-causing chemicals was discharged into ditches
and creeks that flow into the Ohio River, three miles away.
[Illustration]
INFO-GRAPHIC; INFO-GRAPHIC; WILLIAM MCNULTY,
PATTERSON CLARK, JACKSON DYKMAN; INFO-GRAPHIC
Credit: Washington Post Staff Writer
Reproduced with permission of the copyright owner. Further
reproduction or distribution is prohibited without permission.
Subjects:
Locations:
Paducah Kentucky
Article types:
News
Dateline:
PADUCAH, Ky.
Section:
A SECTION
ISSN/ISBN:
01908286
Text Word Count 4450
Not Reported in S.W.3d
(Cite as: 2003 WL 21665312 (Tex.App.-Hous. (1 Dist.)))
Page 1
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
CORRECTED MEMORANDUM OPINION
Court of Appeals of Texas,
Houston (1st Dist.).
WESTTEX 66 PIPELINE CO., Appellant,
v.
Maylee O. BALTZELL, Individually and as Trustee of the George N. Jenks Living
Trust; Sally M. Barbarich, as Trustee of the George N. Jenks Living Trust;
Edgar R. Jenks, Individually and as Trustee of the George N. Jenks Living
Trust; George B. Jenks; and Molly E. Jones, Appellees.
No. 01-01-00826-CV.
July 17, 2003.
Gas pipeline company petitioned to condemn 50-foot-wide strip of owners' property for an
easement to construct 12-inch oil and gas pipeline. Owners objected to special
commissioners' award of $5,244. The County Court County Court at Law No. 2 and Probate
Court, Brazoria County, granted partial summary judgment confirming pipeline company's
right to condemn, and entered judgment on jury verdict awarding owners $154,636 less
$5,244 previously deposited in court registry. Pipeline company appealed. The Court of
Appeals, Laura Carter Higley, J., held that: (1) opinions of two real estate appraisal
experts for owners impermissibly used condemnation itself to define parameters of economic
unit and the highest and best use of that unit, and thus were inadmissible; (2) pipeline
company's valuation evidence was conflicting, precluding determination of fair market
value of condemned property as a matter of law; but (3) Court of Appeals could suggest a
remittitur.
Conditionally affirmed.
[1] Evidence
555.6(3)
Opinions of two real estate appraisal experts as to value of condemned strip of property
to construct gas pipeline impermissibly used condemnation itself to define parameters of
economic unit and the highest and best use of that unit, thereby reflecting enhancement of
the property's value that occurred only because of the pipeline project, rather than using
before-and-after valuation method, which would have valued the condemned 5.47-acre tract
as a proportionate share of property owners' entire 735 acres, and thus, opinions were
inadmissible in eminent domain proceeding; experts determined value of easement to
pipeline company instead of loss to property owners. Rules of Evid., Rule 702.
[2] Eminent Domain
221
Valuation evidence presented by gas pipeline company in proceeding to condemn portion of
owners' property for a pipeline easement was conflicting, precluding trial court from
determining, as a matter of law, the fair market value of the condemned property, even
though testimony of property owners' experts was inadmissible.
Page 2
[3] Eminent Domain
263
While inadmissibility of the only evidence supporting award of damages in condemnation
proceeding was reversible error, Court of Appeals could suggest a remittitur, rather than
reversing and remanding, where there was sufficient evidence to support a lower valuation.
On Appeal from the County Court At Law No. 2 and Probate Court, Brazoria County, Texas,
Trial Court Cause No. 24,427G.
Frederick D. Junkin, Andrews & Kurth, LLP, Todd Hamilton Colvard, Andrews & Kurth, Joseph
Patterson, Patterson & Edquist, for Westtex 66 Pipeline Co.
William D. Noel, for Maylee O. Baltzell.
Panel consists of Justices TAFT, KEYES, and HIGLEY.
CORRECTED MEMORANDUM OPINION
LAURA CARTER HIGLEY, Justice.
*1 We withdraw our opinion of May 22, 2003 and issue this one in its stead.
In this eminent-domain case, WesTTex 66 Pipeline Company (WesTTex) acquired a 50 foot
wide, permanent pipeline easement across the Jenkses' [FN1] property. Applying the
standards enunciated by the Texas Supreme Court in Exxon Pipeline Co. v. Zwahr, [FN2] we
determine whether the trial court abused its discretion in admitting the opinion testimony
of the Jenkses' two real estate appraisal experts regarding the value of the property
taken.
FN1. The appellees in this case are Maylee O. Baltzell, Individually and as Trustee
of the George N. Jenks Living Trust; Sally M. Barbarich, as Trustee of the George N.
Jenks Living Trust; Edgar R. Jenks, Individually and as Trustee of the George N.
Jenks Living Trust; George B. Jenks; and Molly E. Jones. For ease of reference, we
refer to the appellees collectively as "the Jenkses."
FN2. 88 S.W.3d 623 (Tex.2002).
We suggest a remittitur of damages. Conditioned on the suggestion of remittitur, we
affirm the trial court's judgment.
Factual and Procedural Background
The Jenkses owned a 735-acre tract of land in Brazoria County. The land had been owned by
the Jenks family since 1906 and was used for agricultural purposes. WesTTex desired to
construct a 12-inch oil and gas pipeline on the Jenkses' property. After it could not
reach an agreement with the Jenkses, WesTTex petitioned the county court to condemn a
50-foot-wide strip of land on the property for the pipeline. The land that WesTTex sought
to condemn had a surface area of 5.47 acres. The county court appointed three special
commissioners to determine the value of the land that WesTTex sought to condemn. Following
a hearing, the commissioners awarded the Jenkses $5,244. On August 28, 1998, WesTTex
deposited this amount into the registry of the court, thereby establishing the date of the
taking. [FN3] The Jenkses filed objections to the commissioner's award and requested a
jury trial. Before trial, the trial court granted a partial summary judgment confirming
WesTTex's right to condemn the Jenkses' land.
FN3. See Tex. Prop.Code Ann. § 21.021(a)(2) (Vernon 1984).
Page 3
The pipeline easement obtained by WesTTex contained three previously constructed
pipelines. WesTTex laid its pipeline completely within the preexisting pipeline easements.
The strip of land containing the WesTTex pipeline, and the three preexisting pipelines, is
adjacent to three additional pipelines; thus, there were six preexisting pipelines in the
vicinity where WesTTex laid its pipeline. The six preexisting pipelines and the WesTTex
pipeline lay between a highway and electrical power lines. The Jenkses never made any
efforts to segregate the portion of the property where the six preexisting pipelines lay.
The entire 735 acre tract, including the land where the preexisting pipelines lay, had
been used for agricultural purposes for several decades. And, after the installation of
the WesTTex pipeline, the surface of the 5 .47-acre pipeline easement continued to be used
for agricultural purposes.
The case proceeded to trial solely on the issue of the amount due the Jenkses for the
easement taking by WesTTex. Before trial, WesTTex filed motions to exclude the testimony
of the Jenkses two real-estate appraisal experts: Brad Kangieser and Tom Edmonds. WesTTex
attacked the reliability of both experts' opinions regarding (1) the fair market value of
the easement acquired by WesTTex and (2) the value of the right to assign the easement,
which WesTTex also acquired. In particular, the motions presented the following arguments
challenging Kangieser's and Edmonds's opinions as to the fair market value of the
easement: (1) Kangieser and Edmonds did not employ the judicially approved
"before-and-after" valuation method; (2) Kangieser and Edmonds improperly considered the
WesTTex pipeline project; and (3) Kangieser and Edmonds improperly assumed the highest and
best use for the 5.47 acres subject to the WesTTex easement was a pipeline easement.
WesTTex challenged the experts' opinions as to the value of the right to assign the
easement on the following grounds: (1) the right to assign the easement should not be
valued separately from the fair-market value of the easement, and (2) Kangieser and
Edmonds each relied on an unreliable valuation model in appraising the right to assign the
easement.
*2 As evidence to support its motions, WesTTex attached the reports and deposition
testimony of Kangieser and Edmonds. In his deposition and report, Kangieser opined that
the fair-market value of the WesTTex easement was $109,837 and that the value of the right
to assign the easement was $41,006. The total compensation owing the Jenkses, according to
Kangieser, was $150,843. Similarly, Edmonds's report and deposition showed that he
believed that the fair-market value of the easement was $131,805 and that the value of the
right to assign the easement was $22,831, totaling $154,636.
The trial court conducted a pre-trial hearing on WesTTex's motions to exclude Kangieser's
and Edmonds's testimony, at which hearing counsel for the parties presented oral argument.
On the first day of trial, the trial court denied the motions to exclude. Over the
objections of WesTTex, Kangieser and Edmonds testified at trial; each testified
consistently with his deposition testimony offered in support of the motions to exclude.
WesTTex also offered the testimony of two real-estate appraisal experts: Albert Allen and
David Dominy. Allen and Dominy both opined that the highest and best use for the condemned
property was agricultural purposes. Applying the "before-and-after" approach to appraising
the property, Dominy testified that the Jenkses were entitled to $2,751 in compensation;
Allen opined that $5,244 was the appropriate amount, which was also the amount awarded by
the special commissioners.
The jury found that the fair-market value of the pipeline easement was $154,636, the
exact figure provided by Edmonds. After deducting the $5,244 that WesTTex had previously
deposited into the court registry, the trial court rendered judgment awarding the Jenkses
$149,392 plus pre- and post-judgment interest.
In eight issues, WesTTex contends that the trial court erred in admitting the testimony
Page 4
of Edmonds and Kangieser; complains that the trial court erred in denying WesTTex's
post-verdict challenges requesting the trial court to disregard the jury's finding and
enter judgment for $5,244; and challenges omissions from and inclusions in the jury
charge.
Discussion
A. Admissibility of Expert Testimony
[1] In issues one and two, WesTTex complains that the trial court erred in admitting
Kangieser's and Edmonds's opinion testimony as to the value of the property taken. In
support of these issues, WesTTex contends as follows: (1) Kangieser and Edmonds
impermissibly included project enhancement in their valuations by relying on WesTTex's
condemnation to compute the easement's fair- market value; (2) Kangieser's and Edmonds's
conclusion that the property's highest and best use was for a pipeline easement was
flawed; (3) Kangieser and Edmonds failed to use the "before-and-after" approach to valuing
the easement; and (4) Kangieser's and Edmonds's opinions as to the value of the right to
assign the easement were unreliable.
1. Standards Applicable to Expert Opinion Evidence
*3 In Gammill v. Jack Williams Chevrolet, Inc., our supreme court held that all expert
testimony must be relevant and reliable under Rule of Evidence 702. 972 S.W.2d 713, 727
(Tex.1998). This holding includes the testimony of expert appraisal witnesses in
condemnation actions. Guadalupe- Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807
(Tex.2002). Appraisal expertise is a form of "specialized knowledge [used to] assist the
trier of fact to determine a fact in issue." Id. (quoting Tex.R. Evid. 702). It is
therefore subject to Gammill 's relevance and reliability requirements. Kraft, 77 S.W.3d
at 807. The proponent of expert testimony must show that the opinions are both relevant to
the issues and based upon a reliable foundation. Id.; E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting analysis of Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)). The
trial court must make the threshold determination of whether the testimony meets both the
relevancy and reliability standards for admissibility under Rule 702. Robinson, 923 S.W.2d
at 557. We review the trial court's decision to admit the testimony for an abuse of
discretion. Kraft, 77 S.W.3d at 806. A court abuses its discretion when it acts without
reference to any guiding rules or principles. Robinson, 923 S.W.2d 549 at 558. Although
the trial court serves as an evidentiary gatekeeper by screening out irrelevant and
unreliable expert evidence, it has broad discretion to determine the admissibility of that
evidence. Id.
The relevance requirement, which incorporates traditional relevancy analysis under Rules
of Evidence 401 and 402, is met if the expert testimony is "sufficiently tied to the facts
of the case that it will aid the jury in resolving a factual dispute." Id. at 556.
Evidence that has no relationship to any issue in the case does not satisfy rule 702 and
is thus inadmissible under rule 702, as well as under rules 401 and 402. Id.
When the reliability of an expert's testimony is challenged, the trial court must "gauge"
the expert's reliability by ensuring "that the opinion comports with applicable
professional standards outside the courtroom." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486,
499 (Tex.2001) (quoting Gammill, 972 S.W.2d at 725-26). In applying this reliability
standard, however, the trial court does not decide whether the expert's conclusions are
correct; rather, the trial court determines whether the analysis used to reach those
conclusions is reliable. Gammill, 972 S.W.2d at 728. Expert testimony is also unreliable
if there is too great an analytical gap between the data upon which the expert relies and
the opinion offered. Id. at 727.
Page 5
2. Exxon Pipeline Co. v. Zwahr: Standards for Valuing a Pipeline Easement in Condemnation
Cases
Since the parties filed their principal briefs in this appeal, the Texas Supreme Court
issued its opinion in Exxon Pipeline Co. v.. Zwahr, a case strikingly similar to the
present one. 88 S.W.3d 623 (Tex.2002). Just as we must do, the Zwahr court determined
whether the trial court had abused its discretion in admitting the opinion testimony of
Brad Kangieser. As here, Kangieser testified in Zwahr regarding the fair market value of a
pipeline easement taken by condemnation.
*4 In Zwahr, the supreme court restated the well-established legal standards applicable
to valuing a pipeline easement in a condemnation proceeding. In this regard, the Zwahr
court stated as follows:
Compensation for land taken by eminent domain is measured by the fair-market value of
the land at the time of the taking. The general rule for determining fair-market value
is the before-and-after rule, which requires measuring the difference in the value of
the land immediately before and immediately after the taking. When, as here, only part
of the land is taken for an easement, a partial taking occurs. In this situation, the
before-and-after rule still applies, but compensation is measured by the market value of
the part taken plus any diminution in value to the remainder of the land.
In determining market value, the project-enhancement rule provides that the factfinder
may not consider any enhancement to the value of the landowner's property that results
from the taking itself. This is because the objective of the judicial process in the
condemnation context is to make the landowner whole. To compensate a landowner for value
attributable to the condemnation project itself, however, would place the landowner in a
better position than he would have enjoyed had there been no condemnation....
On the other hand, the factfinder may consider the highest and best use to which the
land taken can be adapted. The existing use of the land, ... is its presumed highest and
best use, but the landowner can rebut this presumption by showing a reasonable
probability that when the taking occurred, the property was adaptable and needed or
would likely be needed in the near future for another use.
Finally, Texas law permits landowners to introduce testimony that the condemned land is
a self-sufficient separate economic unit, independent from the remainder of the parent
tract with a different highest and best use and different value from the remaining land.
In this situation, the market value of the severed land can be determined without
reference to the remaining land. But when the portion of the land taken by eminent
domain cannot be considered as a separate economic unit, the before-and-after method
requires determining market value by evaluating the taken land as a proportionate part
of the remaining land.
Id. at 627-28 (internal citations omitted).
Applying these legal principles, the Zwahr court concluded that Kangieser's testimony was
irrelevant, and therefore inadmissible, to determining the value of the land taken from
the Zwahrs; thus, the trial court had abused its discretion in admitting Kangieser's
testimony. Id. at 631. The Zwahr court provided two reasons for its holding: (1) Kangieser
had impermissibly premised his valuation of the easement on the fact of Exxon's taking, in
violation of the project-enhancement rule and (2) Kangieser had failed to utilize the
before-and-after method in valuing the easement. Id. at 630-31.
*5 Of particular relevance to the Zwahr court was Kangieser's testimony that Exxon's
condemnation defined the parameters of the economic unit. Id. at 629-30. Kangieser
testified that the 1.01 acre easement that Exxon acquired was a separate economic unit
that had a "highest and best use" as a pipeline easement. Id. at 626, 629. Kangieser
stated that Exxon's taking "created the economic unit." Id. at 630. Similarly, here,
Kangieser and Edmonds also utilized WesTTex's condemnation to define the parameters of the
Page 6
economic unit. Each testified in their respective depositions that the 5.47-acre easement
was a separate economic unit with a highest and best use as a pipeline easement. In this
regard, Kangieser testified that "WesTTex created the economic unit that I valued." [FN4]
More particularly, Kangieser testified as follows:
FN4. All references to Kangieser's and Edmonds testimony in this case are from their
respective depositions, which were offered in support of WesTTex's motions to
exclude.
Q: Did you determine that the 5.47 acres subject to the easement was a separate economic
unit?
A: Yes.
Q: And what did you look at or how did you arrive at that determination?
A: Basically WesTTex has defined the parameters of the easement that they're taking, and
I just valued what they had defined.
Q: Did you do any analysis or give any consideration to the fact that the economic unit
should be larger or smaller than what WesTTex is acquiring?
A: No. I mean, the only thing that I can say is that we--that I've looked at other
easements in the marketplace and 50-foot wide easements in the marketplace is not an
uncommon width.
Q: Okay. So basically, as I understand your testimony, you relied on WesTTex and its
description of the easement rights it's acquiring to determine the economic unit that
you valued.
....
A: I was asked to value the 5.47-acre easement taking and that's what I did.
Q: If WesTTex had acquired a 30-foot easement rather than a 50-foot easement, would you
have considered the 60-foot easement to be the economic unit?
A: Yes.
Kangieser's deposition testimony clearly demonstrates that his valuation of the property
taken by WesTTex was premised on the WesTTex project.
Likewise, Edmonds testified that he adopted the WesTTex pipeline easement as his economic
unit. He stated that the fact that a pipeline is being placed on the 5.47-acre strip of
land is what makes it a separate economic unit.
As did the landowners in Zwahr, the Jenkses contend that Kangieser and Edmonds based
their respective highest-and-best-use opinions on the fact of the preexisting pipeline
easements in the vicinity of the WesTTex easement, not on the WesTTex project itself.
[FN5] The record shows that in determining highest-and-best-use for the 5.47 acres, both
Kangieser and Edmonds testified that the preexisting pipelines increased the likelihood of
another pipeline's being installed in that area. But we conclude, as did the Zwahr court,
that such reliance on preexisting pipelines does not refute the fact that WesTTex's
condemnation itself created the economic unit used by both experts for determining highest
and best use. See id. at 630.
FN5. In a related argument, the Jenkses contend that they were entitled to any
"project enhancement" created by the preexisting pipelines. As set out above, the
project-enhancement rule provides that the factfinder may not consider any
enhancement to the value of the landowner's property that results from the taking
itself. Zwahr, 88 S.W.3d at 627 (citing City of Fort Worth v. Corbin, 504 S.W.2d
828, 830 (Tex.1974)). Thus, the issue that we examine here is whether the experts
impermissibly considered aspects of the current WesTTex condemnation project in
developing their valuation opinions. We conclude that the experts' valuation
opinions in this case relied on the WesTTex project. Further, although not entirely
clear from the briefing, to the extent that the Jenkses contend that the limited
exceptions to the project-enhancement rule found in Fuller v. State apply to the
Page 7
instant case, we hold that such exceptions do not apply under the facts of this
case. See Fuller v. State, 461 S.W.2d 595, 598- 99 (Tex.1970) (discussing narrow
exceptions to project-enhancement rule).
*6 In addition, as in Zwahr, the expert testimony here reveals that, besides relying on
the preexisting easements, Kangieser and Edmonds relied on the condemnation at issue in
determining not only the condemned property's highest and best use, but also its value.
See id. When asked what factors he considered in determining the value of the subject
property, Edmonds stated that "you look at the rights that [the pipeline company] is
acquiring." Edmonds's also testified that the size of the pipeline being installed and
whether the particular easement is "exclusive" or "non-exclusive" are factors in
determining the value of the easement. [FN6] As such, Edmonds's testimony and report make
clear that the value that he assigned to the condemned property was tied to the particular
attributes of the condemnation project at issue.
FN6. Edmonds testified
holder has no right to
non-exclusive easement
within the preexisting
that an exclusive easement is one in which the underlying fee
sell any additional pipeline easements, whereas, a
allows the underlying fee holder to sell additional easements
easements.
Like Edmonds's, Kangieser's valuation opinion was affected by the WesTTex condemnation
project. Kangieser testified that the size of the pipeline being installed, and whether
the easement rights being acquired were exclusive or non-exclusive, impacted the value
that he assigned. Kangieser stated that, if WesTTex had been installing a 14 inch
pipeline, rather than a 12 3/4 inch pipeline, [FN7] he would have given the easement
taking a higher value.
FN7. The record otherwise indicates that the pipeline installed by WesTTex was a
12-inch pipeline.
Kangieser's and Edmonds's appraisal reports also show that they relied on project
enhancement in valuing the taking. Both Kangieser and Edmonds used the "sales comparison
approach," otherwise known as the "market approach," in valuing the condemned property.
Using such approach, Kangieser and Edmonds arrived at a fair-market value for the
condemned property by evaluating and comparing the sales of pipeline easements similar to
the WesTTex easement. In this regard, Edmonds's appraisal report provided the following
explanation for the method that he employed in valuing the property: "The pipeline
easement as though vacant was valued using the sales comparison (market) approach. Sales
involving pipeline easements considered most comparable to the subject [WesTTex easement]
were selected and analyzed." Similarly, Kangieser's report stated the following with
regard to comparable sales that he used to value the condemned property: "The pipeline
easement sales listed on the previous pages were considered to be similar to the subject
[WesTTex easement] and a representative cross section of the sales available." The
Jenkses' experts premised their valuation opinion on the WesTTex pipeline project by
utilizing the sales of pipeline easements similar to the WesTTex easement.
Because Kangieser and Edmonds relied on WesTTex's condemnation in establishing a separate
economic unit and in assigning a value to that unit, their final opinions reflected
enhancement in the condemned property's value that occurred only because of the WesTTex
project. Value that exists because of the condemnation project is not, under the
project-enhancement rule, value for which a landowner may recover. Id.
*7 After Kangieser and Edmonds determined that the 5.47-acre tract was a separate
economic unit, they each evaluated it without reference to the Jenkses' entire 735-acre
tract. Both experts provided a value for the condemned property as it existed on August
28, 1998, the date of WesTTex's taking. Neither expert determined the value of the
Page 8
condemned property before or after the taking. As such, Kangieser and Edmonds determined
the value of the easement to WesTTex, not the value of the loss to the Jenkses for the
taking of the easement. See id. at 631. Kangieser failed to apply the before-and-after
valuation method, which would have required him to evaluate the condemned property as a
proportionate part of the entire 735 acres. [FN8] For these reasons, and applying the
standards enunciated in Zwahr, we conclude that Kangieser's and Edmonds's opinion
testimony was irrelevant to determining the value of the property taken by WesTTex;
therefore, the testimony was inadmissible under Rule of Evidence 702. [FN9] See id.
Accordingly, we hold that the trial court abused its discretion in admitting the
testimony.
FN8. The Jenkses contend that the appropriate valuation method was the comparable
sales approach used by Kangieser and Edmonds. Contrary to the Jenkses' contention,
the Zwahr court explicitly stated that the before-and-after valuation method is the
appropriate method for valuing a pipeline easement in a condemnation proceeding. 88
S.W.3d at 627.
FN9. Edmonds's valuation opinion as to the right to assign the easement was derived
from applying a 20-percent discount rate and a three percent growth rate to the
fair-market value that he gave the easement. Similarly, Kangieser's opinion as to
the value of the right to assign the easement was calculated utilizing the same
underlying data that he used to calculate the fair market value of the easement.
Because Kangieser's and Edmonds's testimony regarding the value of the right to
assign the easement is derivative of their opinions regarding the fair-market value
of the easement, such testimony is also irrelevant and thus inadmissible.
We sustain WesTTex's issues one and two.
B. Denial of Post-Trial Motions
[2] In issues three and four, WesTTex complains that, because "no competent evidence"
exists to support the jury's award, the trial court erred in denying its post-trial
motions to disregard the jury's damages finding and in refusing to modify the judgment to
award the Jenkses $5,244.
WesTTex filed a motion for judgment notwithstanding the verdict (JNOV) and a motion to
modify the judgment. Subject to the denial of those motions, WesTTex also filed a motion
for new trial. As in its motions to exclude, WesTTex argued in its post-trial motions that
the opinion testimony of Kangieser and Edmonds, as to the fair-market value of the
property taken, was inadmissible because the experts' opinions were based on flawed
methodology. On this basis, WesTTex asked the trial court to disregard the jury's finding
as to the fair-market value of the condemned property and to modify the judgment to award
the Jenkses $5,244, the higher of the two amounts provided by WesTTex's valuation expert.
The trial denied the post-trial motions.
Undeniably, the only evidence that tended to support the jury's award of $154,636 was
Kangieser's and Edmonds's opinion testimony. As discussed above, the testimony of the
Jenkses' two experts was inadmissible; thus, it constituted "no evidence." See Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). A trial court is allowed to
render judgment notwithstanding the verdict and to substitute its own judgment of the
proper measure of damages only in certain circumstances. State v. Huffstutler, 871 S.W.2d
955, 961 (Tex.App.-Austin 1994, no writ). A JNOV is proper when a directed verdict would
have been proper. Tex.R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818
S.W.2d 392, 394 (Tex.1991). A directed verdict is proper when the evidence conclusively
proves a fact that establishes a party's right to judgment as a matter of law. Cliffs
Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex.App.-Houston [1st Dist.] 1996, no writ).
Page 9
Under the same rationale, a motion for JNOV should be granted when the evidence is
conclusive and one party is entitled to judgment as a matter of law. See Mancorp, Inc. v.
Culpepper, 802 S.W.2d 226, 227 28 (Tex.1990). The evidence conclusively establishes an
issue when the evidence is such that there is no room for ordinary minds to differ as to
the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors
& Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).
*8 The record reveals that the evidence presented at trial did not conclusively establish
that the Jenkses were entitled to judgment of $5,244, as WesTTex contends. As previously
mentioned, conflicting valuation testimony was presented by WesTTex's own appraisal
experts. Dominy testified that the Jenkses were entitled to $2,751; Allen opined that the
fair-market value of the property was $5,244. Although WesTTex stated in its post-trial
motions that it was agreeable to awarding the Jenkses the higher of the two figures
provided by its experts, it would have been improper for the trial court to conclude, as a
matter of law, that the fair-market value of the condemned property was $5,244. See
Huffstutler, 871 S.W.2d at 961. Accordingly, we cannot conclude that the trial court erred
in denying WesTTex's motion for JNOV and in refusing to modify the judgment.
We overrule issues three and four. [FN10]
FN10. Because of the disposition of issues one through four, we need not reach
WesTTex's issues five through eight, pertaining to jury-charge error. See Tex.R.App.
P. 47.1.
C. Disposition of Appeal
[3] Although we have resolved all issues necessary to the disposition of this appeal, we
are still left to determine the correct appellate remedy. That is, should we reverse and
render or remand? We begin our analysis by holding that the admission of Kangieser's and
Edmonds's testimony as to the fair market value of the condemned property was reversible
error; it was the only evidence supporting the trial court's award of damages. See
Tex.R.App. P. 44.1(a)(1).
As it did in the trial court, WesTTex requests this Court to reverse the trial court's
judgment and render judgment awarding the Jenkses $5,244. Alternatively, WesTTex requests
us to remand for further proceedings. The rules of appellate procedure provide that a
reversal requires the rendering of a judgment unless a remand is necessary for further
proceedings. Tex.R.App. P. 43.3. In the context of a case such as the instant one, we can
render judgment only if there is no evidence to support the award made and if the evidence
conclusively establishes the amount of the loss. Hill v. Spencer & Son, Inc., 973 S.W.2d
772, 776 (Tex.App.-Texarkana 1998, no pet.); Wegner v. State, 829 S.W.2d 922, 923
(Tex.App.-Tyler 1992, writ denied). As discussed above, because WesTTex's valuation
experts presented inconsistent evidence at trial, the evidence was not conclusive. We
cannot conclude, as a matter of law, that the higher figure given by WesTTex's experts is
the correct damage award. See Wegner, 829 S.W.2d at 923; compare Hill, 973 S.W.2d at 773.
Therefore, we cannot render judgment as requested by WesTTex.
An appellate court may suggest a remittitur on its own motion when an appellant complains
that there is insufficient evidence to support an award and the appellate court agrees,
but there is sufficient evidence to support a lesser award. See Tex.R.App. P. 46.3; see
also Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex.App.-San Antonio 1995,
no writ); David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838-39 (Tex.App.-Dallas
1984, writ ref'd n.r.e.). The party prevailing in the trial court must be given the option
of accepting the remittitur or having the case remanded. See Larson v. Cactus Utility Co.,
730 S.W.2d 640, 641 (Tex.1987). Here, the evidence is sufficient to support an award of
damages in the amount of $5,244. Subtracting $5,244 from the jury's award of $154,636
Page 10
reveals a difference of $149,392. Accordingly, we suggest a remittitur in the amount of
$149,392.
Conclusion
*9 We affirm the judgment of the trial court conditioned on the remittitur of $149,392.
See Tex.R.App. P. 46.3. If the Jenkses file a remittitur of $149,392 with the Clerk of
this Court by July 31, 2003, we will reform the trial court's judgment and, as reformed,
affirm. See id. If the Clerk of this Court does not receive the Jenkses' remittitur by
July 31, 2003, we will reverse the trial court's judgment and remand the cause to the
trial court for further proceedings.
2003 WL 21665312 (Tex.App.-Hous. (1 Dist.))
END OF DOCUMENT

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