The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 05/03/96 TRIAL JUDGE: HON. JERRY OWEN TERRY SR. COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION AFFIRMED - 6/4/98
MOTION FOR REHEARING FILED:
¶1. The defendants in the case below were granted judgment on the pleadings and summary judgment by the circuit court. The plaintiffs appeal the summary judgment portion of that ruling. We conclude that a supporting affidavit which was not submitted with the defendants' first summary judgment motion was nevertheless properly submitted in their second motion. Moreover, in order to establish a claim for common law trespass or nuisance, the plaintiffs must present sufficient evidence not only that their properties were exposed to chemicals but also that those chemicals came from the defendants' pulp mill. Because they failed to show evidence meeting this burden, we affirm the grant of summary judgment.
¶2. A joint Complaint was filed in this tort action in the First Judicial District of the Circuit Court of Harrison County, Mississippi, on July 23, 1992. The plaintiffs are thirty-five riparian owners of twenty-three parcels of land that abut or adjoin Poticaw Bayou and/or the West Pascagoula River in Jackson County, Mississippi (Anglado Plaintiffs). The named defendants are Leaf River Forest Products (LRFP), Leaf River Corporation (LRC), Great Northern Nekoosa Corporation (GNNC), Georgia-Pacific Corporation (Georgia-Pacific), Warren Richardson and Acker Smith (all defendants collectively referred to as the "Leaf River Defendants"). *fn1 The Leaf River Defendants filed a joint Answer on August 26, 1992. Since 1984, LRFP has operated a pulp mill on the Leaf River near New Augusta in Perry County, Mississippi, approximately one hundred river miles upstream from the Anglado Plaintiffs' properties. The mill processes timber into market pulp and discharges treated wastewater, known as "effluent," into the Leaf River pursuant to a permit issued by the Mississippi Department of Environmental Quality (DEQ). *fn2
¶3. In their initial joint Complaint, the Anglado Plaintiffs alleged that they and their properties were exposed to 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) and other chemicals which were discharged by the mill into the Leaf River. None of the plaintiffs had been diagnosed with any physical disease or medically cognizable mental illness. Nevertheless, they sought recovery for increased risk of future disease, for emotional distress arising from a fear of future disease, and for medical monitoring. The plaintiffs also sought recovery for diminished property values, for loss of use and enjoyment of their properties, and fraud. They also made claims for punitive damages.
¶4. On December 21, 1993, the Leaf River Defendants filed two separate dispositive motions. One of the motions sought judgment on the pleadings, or in the alternative for summary judgment, on the plaintiffs' claims for possible future disease, medical monitoring and emotional distress based on fear of disease. The other motion sought summary judgment based on the plaintiffs' lack of competent evidence of exposure. The primary basis of this motion was that the Anglado Plaintiffs could not maintain their claims without objective proof that their persons or properties had been exposed to TCDD. Since no such proof of exposure existed, the defendants' asserted that they were entitled to summary judgment. *fn3 A hearing on the defendants' motions was scheduled for February 14, 1994.
¶5. On February 1, 1994, the Anglado Plaintiffs were granted a continuance of the hearing on the defendants' motions. The plaintiffs then engaged Athena Technology, Inc. to collect and analyze sediment samples from Poticaw Bayou and the Pascagoula River. Athena Technology, in turn, retained Triangle Laboratories of RTP, Inc. to conduct the analysis of the samples to determine the presence of dioxin. The test results of these sediment analyses were submitted as an exhibit to the Plaintiffs' Opposition to Defendants' Motions for Summary Judgment. The plaintiffs also submitted the affidavit of Dr. Arthur Hume, who reviewed the test results. Dr. Hume testified that the sample sediments contained varying levels of dioxin, including TCDD, and stated that "use and enjoyment of the Plaintiffs' properties and the River by any of the Plaintiffs would result in some level of exposure to dioxin." *fn4
¶6. On March 23, 1994, approximately two weeks after the plaintiffs provided the test results and affidavits in opposition to the defendants' motions for summary judgment, the Leaf River Defendants served upon plaintiffs' counsel their Reply Brief. Attached to this brief were two new affidavits executed by Christoffer Rappe and Yves G. Tondeur. *fn5 Dr. Rappe concluded that the "low levels" of dioxins identified in the plaintiffs' soil samples are levels that one would expect to find as background levels in soil in a rural area along a river such as the Pascagoula.
¶7. As an expert on dioxin "fingerprinting" or source identification, Dr. Rappe also testified as to the source of the dioxin in the Anglado Plaintiffs' soil samples. Based on his study of the effluent data from the mill, the plaintiffs' test results and underlying data, and the distance of the plaintiffs' properties from the mill, Dr. Rappe concluded that "the Leaf River Mill is not the source of the low levels of dioxins and furans found in Plaintiffs' soil samples." Dr. Tondeur, Vice-President of Triangle Laboratories, also stated in his ...