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Prescott v. Leaf River Forest Products Inc.

March 04, 1999

EVELYN PRESCOTT, JAMES EDWARD NICKELSON, JACK LONG, EARLINE KEITH, EDDIE KELLEY, JAMES MIKE ANDERS, GARY WAYLON HOWELL, RAY MYRICK, CLARENCE M. SHOWS, GEORGE R. PARKER, ROY D. DICKENSON, DARNELL PRESCOTT, DEBRA D. PRESCOTT, AMON D. MERRITT, SANDRA MERRITT, RONALD E. WEST, WANDA JO WEST, BRENDA J. FORTENBERRY, CHARLES F. FORTENBERRY, SR., CARROL C. KEITH, ELVIN KEITH, EVA DEE KEITH, KENNIS KEITH, CAROL W. KEITH (RITCHIE), HILDA B. LONG, JESSIE JACK LONG, BETTY FRANK WELBORN, JERALD LEON WELBORN, BRUCE R. WILLCUTT, BILLY A. ALBAIR, JR., FRANCES ALBAIR, JOSEPH A. VAYDA, SR., RUTH M. VAYDA, ELVA MAE VERRETT, LINDA DIANE ALLMAN, RANDALL ALLMAN, EMELIE DIXON, JAMES JOE DIXON, ARLIE D. HODGES, DARRYL HURT, MARY F. HURT, CAROLYN KEITH, DELTON KEITH, ROGER KEITH, CLARA P. KELLEY, EDDIE L. KELLEY, FRANCES DARLENE KELLEY, SAMUEL MARK KELLEY, FRANK F. RODLER, BILLIE ELAINE ROGERS, WILLIAM H. ROGER, JR., RAYMOND K. SCHNEIDER, ROSALAND C. SCHNEIDER
v.
LEAF RIVER FOREST PRODUCTS, INC., LEAF RIVER CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, GEORGIA-PACIFIC CORPORATION, WARREN RICHARDSON, AND ACKER SMITH GERALD D. WICKS, MERLIN JOSEPH WAGNER, SR., KENNETH DEE MCQUIRE, W. W. WILLIAMS, JR., RUSSELL H. HUBBARD, JR., RAYMOND E. KRAFT, SR., MACK A. BUCKLEY, JAMES FRANK WILLIAMS, JOSEPH D. MCQUEEN, EVELYN BARADELL, ISOM CLIFTON, JOHN PAUL MCDONALD, CLIFTON EDWARD RATCLIFF, JR., LARRY V. BRELAND, RODNEY GEORGE CARTER, SUSAN CARTER, CHARLES HARTSFIELD, JR., LETA HARTSFIELD, NANCY JOYCE WICKS, GRACE L. HUDGINS, HERMAN N. HUDGINS, DOROTHY DELL MARTIN, JAMES O. SHEPARD, PAMELLA LYNN WAGNER, GENE WHITEHURST, JEANNIE WHITEHURST, ELSIE J. MCQUIRE, SYBIL ADKINS, CURTIS ANDREW ARCHEY, MARTHA ARCHEY, ROBERT E. BARTON, NELSA BRANNON, MARY FIRTH, PATRICIA L. GOODWIN, RONALD D. GOODWIN, KARIA RENEE HAMRAC, RONALD EDWARD HAMRAC, ELIZABETH WILLIAMS, ETHEL WOZENCRAFT, JOHN WOZENCRAFT, LUCY WOZENCRAFT, PAMELA HUBBARD, FRANCES MCQUEEN, J. D. MCQUEEN, SR., LORI ATES, STEVE ATES, OREE BAUCUM, JR., WANDA BAUCUM, HELEN BEXLEY, BOBBIE JEAN BOLTON, LUCY BOLTON, EZRA B. BOND
v.
LEAF RIVER FOREST PRODUCTS, INC., LEAF RIVER CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, GEORGIA-PACIFIC CORPORATION, WARREN RICHARDSON, AND ACKER SMITH CASSANDRA DILLON, KENNETH R. MILLER, J. CLARK DAUGHDRILL, THURMAN H. BRISTER, T. A. WILDER, JR., JIMMIE P. JAMES, JIMMY A. ELLZEY, SHIRLEY L. ELLZEY, CLEON A. HARTLEY, EVELYN HARTLEY, DAVID W. SIMMONS, LOURDES DELCARMEN SIMMONS, PATRICIA A. BRISTER, CASSIE E. DAUGHDRILL, WILLIAM MARION DAUGHDRILL, BENJAMIN A. EUBANKS, BRUCE L. EUBANKS, BUFORD L. EUBANKS, CHARLES E. EUBANKS, DAWN EUBANKS, HORRACE R. EUBANKS, MARY E. EUBANKS, OWEN M. EUBANKS, OWEN EUBANKS, SHARON K. EUBANKS, SHERYL P. EUBANKS, TERI C. EUBANKS, LEE ANN FARRIOR, CATHERINE S. GREEN, SAMUEL C. GREEN, JEAN WEBB LOTT, JERRY W. LOTT, KENNETH R. MILLER, MARLENE MILLER, JERRY MORRISON, PEGGY MORRISON, CHESTINE O'NEAL, JERALD O'NEAL, HOLLIS L. WELFORD, ROSIE M. WELFORD, T. A. WILDER, JOYCE JAMES, MAXINE SYLVESTER AND WILMER SYLVESTER
v.
LEAF RIVER FOREST PRODUCT, INC., LEAF RIVER CORPORATION, GREAT NORTHERN NEKOOSA CORPORATION, GEORGIA-PACIFIC CORPORATION, WARREN RICHARDSON, AND ACKER SMITH



The opinion of the court was delivered by: Banks, Justice

CONSOLIDATED WITH NO. 96-CA-00977-SCT NO. 96-CA-00978-SCT

DATE OF JUDGMENT: 07/29/1996

TRIAL JUDGE: HON. JAMES W. BACKSTROM

COURT FROM WHICH APPEALED: GEORGE COUNTY CIRCUIT COURT COURT FROM WHICH APPEALED: GREENE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY

DAMAGE

DISPOSITION: REVERSED AND REMANDED - 3/4/99

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. We have for review a motion for summary judgment granted against property owners along the Leaf River claiming damages resulting from chemical wastes deposited into the Leaf River during the operations of a pulp mill. We find that the Appellants failed to produce legally sufficient evidence in support of their claims of emotional distress arising out of a fear of future disease and their claims of trespass and nuisance for exposure to dioxin. However, we find that the trial court erred in granting the motion for summary judgment on Appellants's claims of private and public nuisance resulting from discoloration of the river and sandbars. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

I.

¶2. In September 1984, Leaf River Forest Products ("LRFP") began operating a pulp mill along the Leaf River near New Augusta, Mississippi. The mill processes timber into market pulp, which is then sold globally to be used in the production of paper and paper related products. As part of the manufacturing process the pulp was bleached by being exposed to chlorine in the presence of heat. A byproduct of the bleaching process was a chemical called 2,3,7,8-tetrachlorodibenzo-p-dioxin, commonly known as dioxin. Pursuant to a permit issued by the Mississippi Department of Environmental Quality the mill discharges treated waste water, known as "effluent", into the Leaf River.

¶3. Starting in 1990, John Deakle, Esq. and associated counsel filed thirty-six (36) separate complaints, on behalf of approximately 5,500 plaintiffs (the "Deakle Group"), against the Leaf River Defendants. The various Complaints claimed that the mill's effluent contained large quantities of dioxin and other chemicals and deposited on properties belonging to members of the Deakle Group and resulted in the discoloration of the river. The Deakle Group further alleged that fish downstream from the mill ingested dioxin and were subsequently consumed by some members of the Deakle Group, thereby exposing them to dioxin. The Deakle Group sought actual and punitive damages on theories which included negligent or intentional infliction of emotional distress arising from a fear of future disease; assault and battery; and interference with the recreational use and aesthetic enjoyment of the Leaf and Pascagoula Rivers by a public and a private nuisance.

¶4. On July 5, 1996, the Leaf River Defendants filed a motion for summary judgment claiming that the Deakle Group lacked scientific evidence to support the assertions that they or their properties had been exposed to dioxins discharged by the mill, as allegedly required by Leaf River Forest Products, Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995). In support of the Motion for Summary Judgment the Leaf River Defendants relied on, among other things, the affidavit of Professor Christoffer Rappe, a Swedish Professor involved in researching dioxin formation. Professor Rappe's affidavit stated that his research in regards to samples collected in and around the Leaf River areas showed to a reasonable degree of scientific certainty that, although the samples contained detectable levels of dioxin, the Leaf River Mill was not the source of the dioxins found in the area. Professor Rappe explained that there are many sources of dioxins, some are natural, such as forest fires and natural decomposition, while other sources are man-made, such as waste incineration, sewage sludge, production and use of chlorine, and some industrial facilities. Human exposure to dioxin is usually attributable to the consumption of such foods as milk, meat, cheese, eggs and seafood. Professor Rappe further stated that dioxins can be detected accurately and with relative ease, in soil and humans through the scientific evaluation of soil samples and blood tests.

¶5. The Deakle Group filed, on July 11, 1996, a motion to stay the proceedings or alternatively to extend the time in which to respond to the summary judgment motion. The Deakle Group argued that the undecided appeal of Leaf River Forest Products, Inc., v. Simmons, 697 So. 2d 1083 (Miss. 1996), involved unresolved legal issues relevant to the present action. On July 19, 1996, after a hearing, the trial court denied the Deakle Group's motions to stay the proceeding or for an extension. The Deakle Group sought reconsideration claiming that under the Scheduling Order for the case the Leaf River Defendants were not yet required to designate any experts and that the Deakle Group had not had an opportunity to conduct discovery regarding the allegations contained in the Motion for Summary Judgment, especially regarding the assertions made by Professor Rappe in his affidavit. The Motion for Reconsideration was also denied.

¶6. On July 25, 1996, the Deakle Group responded to the motion for summary judgment, arguing that circumstantial evidence of exposure to dioxin, as opposed to direct scientific evidence, was sufficient to withstand a motion for summary judgment. In support of their objection to granting the motion for summary judgment the Deakle Group referenced and submitted during the hearing a number of exhibits which had been relied on in the Ferguson trial. They offered the affidavit of John Crutcher ("Crutcher"), a paralegal in the Deakle law firm, describing various photographs and a video tape which had been submitted in Ferguson. The photographs and video tape allegedly depicted color changes in the river and stains on sandbars, at or near the properties belonging to the members of the Deakle Group. The Deakle Group also quoted a Leaf River Inter-Office Communication in which there is a Discussion regarding the fact that the effluent changed the color of the Leaf River. The Deakle Group also argued that they were in close proximity to the Mill, unlike the Ferguson plaintiffs who were 125 miles downstream from the Mill.

¶7. The Deakle Group further alleged that one of the members of the Group had contracted Hodgkin's disease and that a pediatric hematologist had opined that exposure to dioxin was a significant contributing factor. This member's appeal from the grant of the summary judgment motion is beginning considered separately by this Court. However, the Deakle Group admits that the remaining members have no proof that they are suffering from a dioxin caused illness or that dioxin has been detected in their blood.

¶8. After the hearing on the motion for summary judgment the trial court entered a Judgment, on July 29, 1996, granting the Leaf River Defendants's motion, on the grounds that the Deakle Group lacked legally sufficient evidence of exposure or causation. The trial court found that the claims for emotional distress resulting from a fear of future disease were not compensable under Mississippi law. The trial court further found that even if Mississippi recognized such a claim the Deakle Group failed to offer proof that they suffered from a present illness resulting from exposure to dioxin or other chemical, that they had been exposed to any substance discharged by the Leaf River Mill, and failed to offer medical or scientific evidence of a likelihood of developing future illness resulting from exposure to dioxin, as required by Ferguson. The trial court also found that the Deakle Group had offered no proof that their properties were physically invaded by chemicals or that the Leaf River Mill was the source of any such chemicals. It was also held that in claiming a public nuisance for the changes to the Rivers the Deakle Group had failed to offer proof that they suffered harm different from that suffered by the general public or that the Leaf River Mill caused the changes to the Rivers. Having granted the Leaf River Defendants' summary judgment on the Deakle Group's actual damage claims the trial court also dismissed the claims for punitive damages. Aggrieved, 533 of the Deakle Group plaintiffs filed this appeal from the Judgment of the trial court.

II ...


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