United States District Court, S.D. Mississippi, Eastern Division
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,
HERCULES, INC.; and ASHLAND, INC., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant Ashland, Inc.'s Motion for Summary Judgment ; Ashland and Defendant Hercules, Inc.'s Motion for Partial Summary Judgment ; and the Plaintiffs' Motion to Exclude and Limit Certain Opinions of Glenn Millner, Ph.D. ("Motion to Exclude") . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that:
1) Plaintiffs' Motion to Exclude  should be granted in part and denied in part;
2) Ashland's Motion for Summary Judgment  should be granted; and
3) Hercules and Ashland's Motion for Partial Summary Judgment  should be granted in part and held in abeyance in part.
The above-captioned Plaintiffs own certain parcels of land located in the City of Hattiesburg, Forrest County, Mississippi. Hercules operated a chemical production facility (the "Facility, " "Plant, " or "Site") in Hattiesburg from 1923 until approximately 2009. Ashland purchased Hercules in 2008.
On October 2, 2012, Plaintiffs filed suit against Hercules and Ashland in this Court. ( See Compl. .) 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 , adding a cost recovery claim under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a).
Plaintiffs move to exclude and limit certain opinions of Glenn Millner, Ph.D. pursuant to Federal Rules of Evidence 403, 702, and 703, and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). ( See Pls.' Mot. to Exclude .) Ashland seeks summary judgment on the grounds that it never owned or operated the Site, and there is no evidence that it caused the alleged contamination of the Plaintiffs' properties. ( See Ashland's Mot. for SJ .) In addition, Hercules and Ashland jointly seek summary judgment on all of the Plaintiffs' claims except those of Bryan Broome and Iris Broome. ( See Defs.' Mot. for Part. SJ .)
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Initially, the movant has "the burden of demonstrating the absence of a genuine issue of material fact." Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the movant meets this burden, the nonmovant must go beyond the pleadings and point out specific facts showing the existence of a genuine issue for trial. Id. "An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). "An issue is genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation omitted).
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary Judgment is mandatory "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex Corp., 477 U.S. at 322).
Admissibility of Expert Testimony
Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the ...