United States District Court, S.D. Mississippi, Southern Division
MICHAEL YARBROUGH, JR.; et al. PLAINTIFFS
HUNT SOUTHERN GROUP, LLC formerly known as Forest City Southern Group, LLC; et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT are the  Motion for Summary Judgment filed by
Defendants Hunt Southern Group, LLC and Hunt MH Property
Management, LLC and  Motion for Summary Judgment filed
by Defendant Forest City Residential Management, LLC. The
Motions argue that there are no material issues of fact and
the Defendants are entitled to summary judgment on each and
every one of Plaintiffs' claims. The Motions are fully
briefed. Having considered the submissions of the parties,
the record, and relevant law, the Court finds that
Defendants' Motions for Summary Judgment should be
granted. Plaintiffs' claims will accordingly be
plaintiffs in this case - Michael Yarbrough, Jr., Ann
Yarbrough, Alizelyia Yarbrough, Michael Yarbrough, III, and
James Yarbrough - allege that they were exposed to mold while
living in on-base housing at Keesler Air Force Base in
Biloxi, Mississippi. This is one of fourteen pending similar
cases filed by military families at Keesler. The defendants
are alleged to have owned or managed the subject on-base
housing since its construction was completed in 2011. Forest
City Southern Group, LLC (“Forest City Southern”)
purchased the structures from the Air Force on September 30,
2011 and obtained a 50-year lease on the land underlying the
structures. In February 2016, the ownership of the
housing structures and the lease of the underlying land were
purchased from Forest City Southern (presumably by a parent
company of Hunt Southern Group, LLC), and Forest City
Southern's name was changed to Hunt Southern Group, LLC
(“Hunt Southern”). Forest City Residential
Management, LLC (“FCRM”), which had managed and
operated the property for Forest City Southern, ceased
managing and operating the property with its sale, and Hunt
MH Property Management, LLC (“Hunt Management”)
became manager and operator for Hunt Southern.
commenced a lease of their residence on October 1, 2011.
(See Military Lease Agreement 1, ECF No. 196-1.)
Plaintiffs assert they repeatedly requested that Defendants
address maintenance concerns involving mold and water damage
in their residence. Defendants sent maintenance technicians,
who reported that the mold and leaks were resolved. However,
say Plaintiffs, Defendants never actually fixed the cause of
the mold - air conditioning ductwork that sweat because it
was poorly insulated - instead simply cleaning up the visible
mold with soap and water each time. Plaintiffs contend that
Defendants' agents fraudulently misrepresented that mold
problems had been rectified when, in fact, they had not.
Plaintiffs state that because of Defendants actions and
inactions, they were exposed to elevated levels of toxic
mold. As a result, Plaintiffs say they were forced to leave
their home and suffered and continue to suffer physical and
emotional injuries, medical expenses, and property damage.
assert claims for negligence, gross negligence, breach of
contract, civil conspiracy, alter ego, fraudulent
concealment, intentional endangerment, constructive eviction,
violation of § 3951 of the Servicemembers Civil Relief
Act (“SCRA”), breach of agreement to repair, and
third-party beneficiary breach of contract.
Motion for Summary Judgment filed by Hunt Southern and Hunt
Management argues that they are entitled to summary judgment
because, among other things, (1) Plaintiffs have put forward
no evidence that mold present in their home rendered it
dangerous or unsafe, (2) Plaintiffs cannot establish that the
Hunt Defendants breached a duty of care because they do not
have the necessary expert testimony, (3) Plaintiffs cannot
establish that any of their injuries were proximately caused
by mold exposure, (4) Plaintiffs cannot establish that the
Hunt Defendants breached the lease agreement, (5) Plaintiffs
cannot establish an underlying tort for a civil conspiracy
claim, (6) Plaintiffs cannot establish a claim for
constructive eviction or SCRA claim because they were never
evicted (constructively or otherwise), (7) Plaintiffs'
third-party beneficiary claim is expressly disclaimed by the
Master Development and Management Agreement entered into by
the Air Force and Forest City Southern, and (8) Plaintiffs
claims for alter ego, fraudulent concealment, and intentional
endangerment are not independent causes of action. FCRM makes
the same arguments in its Motion for Summary Judgment, but
also asserts that it was never party to the lease agreement
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
is appropriate “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). “When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “[T]he nonmovant
must go beyond the pleadings and designate specific facts
showing that there is a genuine issue for trial.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
genuine dispute of material fact means that ‘evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.'” Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). If the evidence presented by the nonmovant
“‘is merely colorable, or is not significantly
probative,' summary judgment is appropriate.”
Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating
Co., 671 F.3d 512, 516 (5th Cir. 2012) (quoting
Anderson, 477 U.S. at 249). In deciding whether
summary judgment is appropriate, the Court views the evidence
and inferences in the light most favorable to the nonmoving
party. RSR Corp. v. Int'l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010).
threshold issue not directly addressed by the parties is the
impact of Keesler Airforce Base's status as a federal
enclave on the choice of substantive law for Plaintiffs'
personal injury claims. See United States v. Tax
Comm'n of Miss., 421 U.S. 599, 600-01 (1975).
“Generally, when an area in a State becomes a federal
enclave, ‘only the [state] law in effect at the time of
the transfer of jurisdiction continues in force' as
surrogate federal law.” Parker Drilling Mgmt.
Servs., Ltd. v. Newton, 139 S.Ct. 1881, 1890 (2019)
(quoting James Stewart & Co. v. Sadrakula, 309
U.S. 94, 100 (1940)). “Existing state law typically
does not continue in force, however, to the extent it
conflicts with ‘federal policy.' And going forward,
state law presumptively does not apply to the enclave.”
Id. (citations omitted). “This approach
ensures ‘that no area however small will be without a
developed legal system for private rights,' while
simultaneously retaining the primacy of federal law and
requiring future statutory changes to be made by
Congress.” Id. (quoting Sadrakula,
309 U.S. at 100; citing Tax Comm'n of Miss., 412
U.S. at 370 n.12).
has eliminated the need to determine Mississippi personal
injury law at the time Keesler became a federal enclave. 28
U.S.C. § 5001 provides that current state law governs
actions for personal injuries that occur “in a place
subject to the exclusive jurisdiction of the United States
within a State.” 28 U.S.C. § 5001; see
Rodriguez v. Nationwide Homes, Inc., 765 Fed.Appx. 782,
785 (10th Cir. 2018); La. United Bus. Ass'n Cas. Ins.
Co. v. J & J Maint., Inc., 133 F.Supp.3d 852, 863-64
(W.D. La. 2015). Thus, § 5001 adopts and incorporates
current Mississippi law governing personal injury actions.
Vasina v. Grumman Corp., 644 F.2d 112, 117 (2d Cir.
1981) (addressing § 5001's predecessor, 16 U.S.C.
§ 457); Voelkel v. Gen. Motors Corp.,
846 F.Supp. 1468, 1473 (D. Kan.), on
reconsideration, 846 F.Supp. 1482 (D. Kan. 1994),
aff'd, 43 F.3d 1484 (10th Cir. 1994) (same).
Plaintiffs' Tort Claims Fail Because They Do Not Have
Expert Evidence of Specific Causation
negligence and gross negligence claims are claims for
personal injury caused by their alleged exposure to toxic
mold in their leased premises. “Such a claim is one for
toxic tort.” Shed v. Johnny Coleman Builders,
Inc., 761 Fed.Appx. 404, 406 (5th Cir. 2019). “In
any tort case, identifying and proving the source of the harm
that proximately caused a plaintiff's injuries is
essential.” Smith v. Union Carbide Corp., 200
So.3d 1035, 1041 (Miss. 2016) (quoting Miss. Valley
Silica Co. v. Reeves, 141 So.3d 377, 382 (Miss. 2014)).
“To establish causation in toxic tort cases, general
causation first must be shown, then specific causation.
General causation means that a substance is capable of
causing a particular injury; specific causation looks to
whether the substance caused the specific plaintiff's
injury.” Shed, 761 Fed.Appx. at 406 (citing
Knight v. Kirby Inland Marine Inc., 482 F.3d 347,
351 (5th Cir. 2007)); see also Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 670 (5th Cir. 1999).
Mississippi law, actions involving ‘medically
complicated' injuries require expert testimony on
causation.” Savage v. Pilot Travel Centers,
L.L.C., 464 Fed.Appx. 288, 290-91 (5th Cir. 2012);
see also Cole v. Superior Coach Corp., 234 Miss.
287, 106 So.2d 71, 72 (1958) (“In all but the simple
and routine cases . . ., it is necessary to establish medical
causation by expert testimony.”). Plaintiffs'
mold-exposure claims allege medically complicated injuries,
which require expert testimony on causation. See
Curtis, 174 F.3d at 670 (“We recognize that
‘[s]cientific knowledge of the harmful level of
exposure to a chemical, plus knowledge that the plaintiff was
exposed to such quantities, are minimal facts necessary to
sustain the plaintiffs' burden in a toxic tort
case.'”); Garrett v. City of Tupelo,
Miss., No. 1:16cv197-DMB-DAS, 2018 WL 3341198, at *8
(N.D. Miss. July 6, 2018) (“Causation in a mold case is
not within common knowledge and expert medical testimony will
be required to establish general and specific
causation.”); Ingram v. Guideone Mut. Ins.
Co., No. 2:06cv117-KS-MT, 2007 WL 4165361, at *5
(S.D.Miss. Nov. 19, 2007) (“In order to prevail on
their claims for physical injury, the plaintiffs must
demonstrate ‘by a reasonable medical probability
through expert testimony that [their] alleged injuries were
caused by mold exposure.'”); Childers v. Ill.
Cent. R.R. Co., __ So.3d __, 2019 WL 2428777, at *2
(Miss. Ct. App. June 11, 2019) (“The causal link
between a cancer diagnosis and exposure to harmful toxins,
however, often requires the expertise and knowledge of a
offer the testimony of two experts. However, neither provides
evidence of specific causation. Joe E. Morgan is a contractor
with significant construction and construction-consulting
experience. His opinion is that defects in the way the HVAC
system was installed in Plaintiffs' residence caused
moisture issues, and Defendants took too long to address
these moisture issues. (See Morgan Report, ECF No.
206-1; Morgan Depo. 50, ECF No. 206-2 (ECF pagination).) Mr.
Morgan's opinion cannot establish general or specific
causation for Plaintiffs' mold-exposure claims. Dr. Paul
Goldstein, Ph.D. is a professor of genetics and toxicology in
the Department of Biological Sciences at the University of
Texas, El Paso. Dr. Goldstein opines that the Yarbroughs have
experienced symptoms - chest pain, sinusitis, congestion,
respiratory problems, rhinitis, fatigue, headache, rash,
allergic reaction, dermatitis, nausea, vomiting, and cough -
consistent with exposure to toxins released by Aspergillus
and Penicillium mold spores found in their residence.
(See Goldstein Report 3-5, ECF No. 216-1.) He also
offers his conclusions that Plaintiffs' exposure to these
toxins more likely than not caused their symptoms.
(Id. at 5.) However, the Court has determined in a
separate, concurrently-entered Memorandum Opinion and Order
that this second opinion - which concerns specific causation
- must be excluded as unreliable under Federal Rule of
Goldstein is prepared to state that the symptoms collectively
experienced by members of the Yarbrough household are
consistent with the symptoms caused by exposure to toxins
released by Aspergillus and Penicillium mold spores. He did
not determine that the specific mold(s) to which individual
plaintiffs were exposed caused the specific symptoms they
experienced. He acknowledges that the testimony of a medical
doctor is required in order to determine whether any
individual person suffered symptoms caused by
exposure to mold. The only medical expert opinion offered in
this case is that of Dr. Chelle P. Wilhelm, M.D., the Rule 35
medical examiner. Dr. Wilhelm clinically examined each of
the Yarbroughs, reviewed their medical records, and concluded
“to a reasonable degree of medical certainty”
that the Yarbrough's documented and reported symptoms
were not caused by exposure to mold in their home at Keesler.
(Wilhelm Rule 35 Reports 6, 24, 36, 55, 65, ECF No. 229-20.)
Goldstein's admissible opinion evidence establishes
general causation - that the mold to which Plaintiffs were
exposed could produce the symptoms they experienced - but
that is all. Plaintiffs' mold-exposure claims require
expert evidence on both general and specific causation, but
Plaintiffs point to no additional expert medical evidence in
the record. In fact, the only medical evidence offered by
either party establishes that exposure to mold was not the
cause of Plaintiffs' injuries. Without an issue of fact
as to specific causation, the Court must grant summary
judgment for Defendants on Plaintiffs' negligence and
gross negligence claims. See Shed, 761 Fed.Appx. at
407 (“Shed's doctors observed that the injuries
were consistent with mold exposure without
concluding that mold was in fact the cause. Therefore, Shed
had failed to produce sufficient evidence to create a
material issue of fact that the mold in his rental unit
caused his physical injury.”) (emphasis in original).
Plaintiffs' Civil Conspiracy Claim Fails Because They