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Brantley v. International Paper Co.

United States District Court, M.D. Alabama, Northern Division, Montgomery

August 3, 2017

THOMAS L. BRANTLEY, et al., Plaintiffs,


          Danny C. Reeves, Judge

         This matter is pending for consideration of the plaintiffs' Motion to Alter or Amend [Record No. 290] the Memorandum Opinion and Order of May 24, 2017 [Record No. 288]. Specifically, the plaintiffs ask the Court to vacate its rulings which granted summary judgment in favor of the defendant on the plaintiffs' claims of negligence, public nuisance, and trespass. The plaintiffs also ask the Court to vacate its rulings regarding the admissibility of expert testimony regarding medical causation. For the reasons that follow, the motion will be denied.


         Under Rule 59(e) of the Federal Rules of Civil Procedure, a party may ask a court to alter or amend its prior rulings in a pending case based on newly discovered evidence or manifest errors of law. In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). The remedy provided under Rule 59(e) is extremely narrow and is not intended to be used to re-litigate matters or present arguments or evidence that could have been raised previously. Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). In fact, to prevail on a motion to reconsider, the aggrieved party must “demonstrate a justification for relief so compelling that the court was required to grant the motion.” Maradiaga v. United States, 286');">679 F.3d 1286, 1291 (11th Cir. 2012).


         A. Plaintiffs' Negligence Claims

         The plaintiffs contend that the Court manifestly erred by granting summary judgment in favor of IP regarding their negligence claims. However, expert testimony is required to establish the appropriate standard of care concerning matters involving specialized knowledge that is outside the common experience of a layperson. See Glenn Constr. Co., LLC v. Bell Aerospace Servs., Inc., 85 F.Supp.2d 1258');">785 F.Supp.2d 1258, 1282-83 (M.D. Ala. 2011). See also In re Amtrak Sunset Ltd. Train Crash, 88 F.Supp.2d 1341');">188 F.Supp.2d 1341, 1349 (S.D. Ala. 1999). Expert witnesses may rely upon applicable state or federal regulations or industry customs as bases for opining on the standard of care. See Trinidad v. Moore, No. 2: 15-cv-323, 2016 WL 5239866, *5-*6 (M.D. Ala. Sept. 20, 2016).

         The plaintiffs contend that a jury could “find negligence” based on the sheer volume of fugitive emissions IP has released. This claim is based, in large part, on the assertion that the mill utilizes “short stacks.” However, after reviewing all of the evidence, there is no genuine issue of material fact that the defendant breached any duty with respect to stack height. The plaintiffs' proposed standard-of-care expert (Cheremisinoff) reported that “tall stacks” promote better dispersion of chemical emissions, but conceded that they are typical at power plants. [Record No. 200-8, 20');">p. 20] Further, he did not examine customary stack heights within the paper industry. [Record No. 306-2, p. 216]. See Kerns v. Sealy, 2d 1306');">496 F.Supp.2d 1306, 1316 (S.D. Ala. 2007) (applying industry standards to establish standard of care).

         Cheremisinoff expressly declined to comment on whether IP's stack heights were adequate for the mill. [Record No. 306-2, pp. 214-15] He also abstained from offering an opinion regarding whether any particular emission control practice complied with an industry standard. [Record No. 200-22, p. 15] The plaintiffs contend that Cheremisinoff still could offer an opinion that IP was negligent with respect to operations in general, but such an opinion must be based on evidence that IP breached an applicable standard of care in some manner.

         The plaintiffs focus significant attention on Cheremisinoff's statements regarding fugitive emissions. These are defined as emissions “which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.” 40 C.F.R. § 52.21(b)(20). However, Cheremisinoff relied on NEI data which characterized emissions passing through stacks less than 10 feet in height as fugitive emissions. Consequently, the plaintiffs contend that half of the mill's emissions from 1988 through 2002 were fugitive. [Record No. 291, p. 4] The plaintiffs assert that these emissions did not disperse as well as emissions from tall stacks because they were released closer to the ground. The plaintiffs also contend that an unknown volume of fugitive emissions came from “leak[s] from piping components, ” which were not scrubbed or reduced by pollution-reducing devices contained in stacks. The plaintiffs argue that the jury could infer negligence based on this “high volume” of fugitive emissions released from the mill.

         The plaintiffs failed to present any evidence that the mill did not comply with federal or state requirements regarding stack heights or emission standards. Although compliance with statutory standards does not preclude negligence claims, see Morrison v. Drummond, Inc., No. 2: 14-CV-406, 2015 WL 1345721, at *3 (N.D. Ala. March 23, 2015), compliance is evidence of due care. See Adinolfe v. United Techs. Corp., 8 F.3d 1161');">768 F.3d 1161, 1174 (11th Cir. 2014) (citing Restatement (Second) Torts § 288C (1979)). Further, Cheremisinoff declined to offer an opinion that “any of the stacks at the IP mill should be taller than they are.” [Record No. 306-2, pp. 214-15] This seriously undermines the plaintiffs' argument that half of IP's emissions were characterized as fugitive due to insufficient stack height. Additionally, the plaintiffs did not attempt to quantify the alleged fugitive emissions based on leaks and Cheremisinoff concedes that he did not visit the facility or evaluate any particular emissions source. Id. at pp. 14, 50.

         Although the plaintiffs fault the paper mill for using “short stacks” and having too many fugitive emissions, they have not provided evidence that would give jurors a reasonable basis to determine that IP's actions fell below an accepted standard of care. Put simply, the plaintiffs' failure to provide expert testimony regarding the standards recognized in the pulp and paper industry would force a jury to engage in speculation regarding the appropriate standards of care. Because such speculation is prohibited, the plaintiffs cannot prove their claims of negligence. See Griggs v. Washington Metro. Area Transit Auth., No. 99-1552, 2002 WL 31174533, at *5 (D.D.C. Sept. 30, 2002) (citing Nat'l Tel. Coop. Assoc. v. Exxon Mobil Corp., 244 F.3d 153');">244 F.3d 153, 154-55 (D.C. Cir. 2001)).

         The plaintiffs also make a passing argument that IP also could be negligent based on its “failure to develop programs to reduce acid aerosols . . . failure to investigate odor complaints and develop programs to reduce the number of complaints, and [the] failure to determine whether its releases were harming the community and to take steps to cure this harm.” [Record No. 291, p. 8] To the extent the plaintiffs did not develop an argument to support this contention, it is waived. Hartmann v. Prudential Ins. Co. of America, 207');">9 F.3d 1207, 1212 (7th Cir. 1993) (“Failure to press a point (even if it is mentioned) and to support it with proper argument and authority forfeits it.”). See also Taul ex rel. United States v. Nagel Enters., Inc., No. 2: 14-cv-061, 2016 WL 304581, at *10 (N.D. Ala. Jan. 25, 2016). Regardless, it appears that these issues suffer from the same infirmities as those previously discussed because Cheremisinoff did not provide a standard of care.

         The plaintiffs' Rule 59 argument regarding their public nuisance claim is premised on the proposition that the Court must vacate its decision regarding negligence. [Record No. 291, pp. 9-10] Accordingly, the ...

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