United States District Court, M.D. Alabama, Northern Division, Montgomery
THOMAS L. BRANTLEY, et al., Plaintiffs,
INTERNATIONAL PAPER COMPANY,
MEMORANDUM OPINION AND ORDER
C. Reeves, Judge
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.
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).
Plaintiffs' Negligence Claims
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).
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).
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
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.
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.
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.
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
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 ...