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Blackard v. Hercules, Inc.

United States District Court, S.D. Mississippi, Eastern Division

April 24, 2014

MARY FRANCES BLACKARD; ERVIN BOOTH; LYNN BOOTH; MILDRED ELAINE BOOTH; BRYAN BROOME and IRIS DEZILE BROOME; LIGHTHOUSE RESCUE MISSION, INC.; JASON LEE SHOWERS; EDGAR SMITH; KENNETH THRONSON; and ALKEN WATTS, PLAINTIFFS
v.
HERCULES, INC.; and ASHLAND, INC., DEFENDANTS

Page 577

For Mary Frances Blackard, Alken Watts, Kenneth Thronson, Edgar Smith, Jason Lee Showers, Lighthouse Rescue Mission, Inc., Iris Dezile Broome, Bryan Broome, Mildred Elaine Booth, Lynn Booth, Ervin Booth, Plaintiffs: James Coleman King - PHV, Justin L. Jones - PHV, Keith M. McKerall - PHV, LEAD ATTORNEYS, PRO HAC VICE, KING, WILEY, WILLIAMS & MCKERALL, Jasper, AL; John Mann Johnson - PHV, William Larkin Radney - PHV, IV, William S. Cox - PHV, LEAD ATTORNEYS, PRO HAC VICE, Clinton Timothy Speegle - PHV, PRO HAC VICE, LIGHTFOOT, FRANKLIN & WHITE, L.L.C. - Birmingham, Birmingham, AL; Winston James Thompson, III, LEAD ATTORNEY, THE COCHRAN FIRM - Jackson, Jackson, MS; Nichon Shannon, LAW OFFICE OF NICHON SHANNON, LLC, Madison, MS.

For Hercules, Inc., a foreign corporation, Defendant: Richard F. Yarborough, Jr., LEAD ATTORNEY, Amy Lewis Champagne, Ashley C. Tullos, Michael V. Bernier, William N. Reed, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC - Jackson, Jackson, MS.

For Ashland, Inc., a foreign corporation, Defendant: Richard F. Yarborough, Jr., LEAD ATTORNEY, Amy Lewis Champagne, Ashley C. Tullos, Michael V. Bernier, William N. Reed, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC - Jackson, Jackson, MS; Intervenor, The Murray Law Firm, New Orleans, LA; Timothy Brown, MURRAY LAW FIRM, New Orleans, LA; William Joseph Kerley, KERLEY & CLARK - Jackson, Flowood, MS.

OPINION

Page 578

MEMORANDUM OPINION AND ORDER

Keith Starrett, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on the Defendants Hercules, Inc. and Ashland, Inc.'s Motion to Strike Expert Witness Testimony (" Motion to Strike" ) [199]. Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the motion should be granted.

I. RELEVANT BACKGROUND

The above-captioned Plaintiffs own certain parcels of land located in the City of Hattiesburg, Forrest County, Mississippi. Defendant Hercules operated a chemical production facility (the " Facility" ) in Hattiesburg from 1923 until approximately 2009. Defendant Ashland purchased Hercules in 2008.

On October 2, 2012, Plaintiffs filed suit against Hercules and Ashland in this Court. ( See Compl. [1].) Subject matter jurisdiction is asserted on the basis of diversity of citizenship under Title 28 U.S.C. § 1332. Plaintiffs allege, inter alia, that the Defendants improperly disposed of hazardous substances at the Facility; that the hazardous substances contaminated the soil and groundwater underneath the Facility; and, that the substances migrated through the environment and damaged their properties. The Complaint asserts the following state law causes of action: negligence; gross negligence; negligence per se; private nuisance; and trespass. Plaintiffs subsequently filed their First Amended Complaint [21], adding a cost recovery claim under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a).

On November 20, 2013, Plaintiffs designated several individuals as expert witnesses, including Dr. Tresa Roebuck-Spencer and Dr. Jonas Kalnas. ( See Doc.

Page 579

No. [187-1].) Dr. Roebuck-Spencer was designated as a neuropsychologist to " testify regarding plaintiffs' mental and emotional reactions to knowledge of contamination on and around their properties originating from the Hercules facility." (Doc. No. [187-1] at p. 2.) Dr. Roebuck-Spencer evaluated nine (9) of the individual Plaintiffs to determine " the emotional/psychological impact of information and belief that" hazardous substances emanating from the Facility were damaging their properties. (Doc. No. [252-3 at ECF pp. 1, 13, 26, 38, 52, 64, 76, 87, 99].) Dr. Roebuck-Spencer determined that six (6) of the Plaintiffs experienced either significant or negative emotional reactions upon learning that their properties may have been contaminated by hazardous waste from the Facility; that one (1) of the Plaintiffs experienced a limited emotional reaction upon learning of the possible contamination of his property; that one (1) of the Plaintiffs had pre-existing psychiatric conditions that precluded any conclusive determination of the Plaintiff's emotional reaction; and, that the remaining Plaintiff's evaluation was ...


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