Environmental Nuisance Claims — It Helps To Have Experts

The old warning that “past performance is no guarantee of future results” apparently applies not only to investments but also to environmental nuisance suits in Tennessee.  In Freeman v. Blue Ridge Paper Products, a class of 300 residents living 26 miles downriver from a paper mill plant had obtained a $2 million jury verdict in state court on the ground that the paper mill had interfered with the use and enjoyment of their property from 1999 to 2005 by putting chemicals into the river that caused odors, foam, and discoloration of the water leading plaintiffs to suffer anxiety, stress, and fear.   Emboldened by that result, the plaintiff class brought a new action for the next period of time from 2005 to 2011.  That action was removed to federal court.  Notwithstanding the earlier state court verdict, the federal district court granted summary judgment dismissing the case on the ground that plaintiffs had failed to come forward with the required expert evidence of causation.

In an unpublished decision last week, the Sixth Circuit affirmed.   Although the plaintiffs had identified several industrial hygenists to testify as experts as to the harmful nature of the chemicals discharged into the river by the paper mill and the anxiety that such discharges caused the plaintiffs living downriver, the court noted that the plaintiffs had failed to identify any expert who would testify that the chemicals discharged by the paper mill had actually travelled the 26 miles in the river to where the plaintiffs  lived.  Noting that expert evidence is required where the subject matter is so far removed from the usual and ordinary experience of the average man, the court found that lay testimony that the river in front of plaintiffs’ homes had foam, odor, and discloration which started roughly at the time the paper mill commenced operations was not sufficient to establish that the chemicals from the paper plant 26 mills away had caused those effects.  Rejecting the argument that the prior jury verdict was sufficient to establish causation, the Sixth Circuit noted that what was true between 1999 and 2005 was not necessarily true thereafter.

Sometimes trying the same case a second time isn’t as easy as you expect.


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