Hollingsworth et al v. Hercules, Inc.

Filing 114

ORDER denying 65 Motion to Exclude; denying 67 Motion to Exclude Signed by District Judge Keith Starrett on 1/3/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

LEE HOLLINGSWORTH, et al.
V.

PLAINTIFFS
CIVIL ACTION NO. 2:15-CV-113-KS-MTP

HERCULES, INC..

DEFENDANT
MEMORANDUM OPINION AND ORDER

For the reasons below, the Court denies Plaintiffs= Motion to Exclude [65] testimony of Dr.
David Garabrant and denies Plaintiffs= Motion to Exclude [67] testimony of Dr. Glenn Millner.
I. BACKGROUND
This is a toxic tort case. Plaintiffs own property in Hattiesburg, Mississippi, near the site of a
chemical plant that Defendant operated from 1923 until approximately 2009.1 Plaintiffs allege that
Defendant improperly disposed of numerous hazardous waste products, contaminating the soil and
groundwater beneath its facility. Plaintiffs contend that these hazardous waste products migrated through
several environmental pathways and contaminated the soil, air, and groundwater of their properties.
Plaintiffs allege that they have suffered property damage, loss of income, and emotional distress. They
specifically asserted counts of negligence, gross negligence, nuisance, and trespass.
The parties filed numerous dispositive and evidentiary motions. The Court granted in part and

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This is one of several toxic tort suits against Defendant in this Court. See, e.g. Complaint,
Blackard v. Hercules, Inc., No. 2:12-CV-175-KS-MTP (S.D. Miss. Oct. 2, 2012), ECF No. 1;
Complaint, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D. Miss. May 9, 2014), ECF No. 3.

denied in part [110] Defendant=s Motion for Partial Summary Judgment [72] and denied Plaintiffs=
Motion for Partial Summary Judgment [69]. The Court now addresses Plaintiffs= Motions to Exclude
[65, 67] certain testimony by Defendant=s expert witnesses.
II. MOTION TO EXCLUDE TESTIMONY OF DR. DAVID GARABRANT [65]
Plaintiffs argue that the Court should exclude any testimony from Defendant=s expert, Dr. David
Garabrant, regarding the risk of illness from exposure to contaminants at various concentrations.
Plaintiffs contend that such testimony is irrelevant to the issues to be decided by the jury insofar as they
have not asserted a personal injury claim.
Plaintiffs did not assert a personal injury claim, and the Court granted summary judgment [110]
as to any claim for emotional damages caused by fear of future health problems. However, the health
risk posed by the alleged contaminants is relevant to the value of the properties at issue and, therefore,
Plaintiffs= damages.
Plaintiff Lee Hollingsworth testified that contaminants on the properties are Aa concern and a
worry@ about which Plaintiffs will Afeel obligated to tell@ renters. Exhibit 2 to Motion for Partial
Summary Judgment at 4, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept.
29, 2016), ECF No. 72-2. He stated: AI know if I was renting a house and somebody told me that there
was a harmful chemical in the attic, I=d be kind of skeptical about renting.@ Id. Likewise, Plaintiff Scott
Hollingsworth testified that any contamination Acould actually have a B a huge impact on ongoing
rentals.@ Exhibit 3 to Motion for Partial Summary Judgment at 3, Hollingsworth v. Hercules, Inc., No.

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2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-3. Scott Hollingsworth also stated in
his responses to Defendant=s interrogatories 1) that Plaintiffs Ahave lost a total of $2,725 in rental
income,@ 2) that the Aamount will continue to accrue until such a time as the contamination is removed
from the propert[ies],@ 3) that the Arental value at 138 W. 8th Street has currently decreased by $125 per
month,@ and 4) that at least one renter has moved out because of the alleged contamination on the
property. Exhibit 4 to Motion for Partial Summary Judgment at 6-7, Hollingsworth v. Hercules, Inc.,
No. 2:15-CV-11-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-4.
Finally, Plaintiffs= expert, Joe Parker, stated in his appraisals of the properties that Aas local
residents become aware of the contamination, many will opt to move away from the health and safety
hazards associated with and perceived to be associated with toxic chemical contamination.@ Exhibit 11
to Motion for Partial Summary Judgment at 18, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KSMTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-11; Exhibit 12 to Motion for Partial Summary Judgment
at 18, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF
No. 72-12; Exhibit 13 to Motion for Partial Summary Judgment at 18, Hollingsworth v. Hercules, Inc.,
No. 2:15-CV-113-KS-MTP (S.D. Miss. Sept. 29, 2016), ECF No. 72-13. He concluded: AGiven the
nature of the reported contamination on the Hercules site and on the proximate properties, it is our
judgment that demand for homes in this area will decrease and that the sales prices of those homes that
do sell will also decrease in the near term.@ Exhibit 11 [72-11] at 19; Exhibit 12 [72-12] at 19; Exhibit
13 [72-13] at 19.

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Therefore, according to Plaintiffs= own testimony and their expert=s appraisals, the human health
risks of exposure to the alleged contaminants is relevant to the value of Plaintiffs= properties B an issue
to be addressed by the jury. Accordingly, the Court denies Plaintiffs= motion to exclude Garabrant=s
testimony regarding human health risk. However, if either party wants the Court to give a limiting
instruction as to evidence of human health risk posed by the alleged contaminants, they are free to
request such at trial.
Plaintiffs also argue that Garabrant=s testimony regarding Anon-detect@ lab results should be
excluded on the basis that it will not help the jury determine a fact in dispute. Plaintiffs contend that
Garabrant does not disagree with their expert regarding the conclusion to be drawn from Anon-detect@
lab results and, therefore, there is no factual dispute regarding this issue.
Garabrant stated in his report that test results Abelow the limit of detection (LOD), or below the
method detection limit (MDL), indicate that the [contaminant] was not found and that the analytic
method was capable of reliably finding the [contaminant] only at concentrations above the LOD or
MDL.@ Exhibit A to Memorandum at 27, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KS-MTP
(S.D. Miss. Sept. 29, 2016), ECF No. 66-1. He continued: AWhen [a contaminant] can not be found in
a sample . . . no reliable inferences can be made that the [contaminant] was present, or about the
concentration at which it was present.@ Id. Accordingly, Garabrant characterized Plaintiff=s expert=s
opinion that Athere could be a presence of that compound at a concentration lower than that detection
reporting level@ as Anothing more than speculation,@ and opined that he Ahad no basis for claiming that

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the chemical was present or for making any claims about the concentration of that chemical in the
sample.@ Id.
At the very least, Garabrant disagrees with the conclusions that Plaintiff=s expert drew from the
Anon-detect@ lab results. Accordingly, his testimony regarding the same would help the jury to resolve
a factual dispute. Plaintiffs= motion is denied.2
III. MOTION TO EXCLUDE TESTIMONY OF DR. GLENN MILLNER [67]
First, Plaintiffs argue that the Court should exclude any testimony from Defendant=s expert, Dr.
Glenn Millner, regarding the human health risks of exposure to contaminants at various concentrations.
Plaintiffs contend that such testimony is irrelevant to the issues to be decided by the jury insofar as they
have not asserted a personal injury claim. The Court disagrees for the same reason provided above.
Millner=s testimony regarding the human health risks of exposure to contaminants at various
concentrations is relevant to the value of Plaintiffs= properties and, therefore, Plaintiffs= damages.
Plaintiffs also argue that Millner=s opinion regarding remediation of the properties is irrelevant
and contrary to Mississippi law. Millner intends to testify that the Aconcentrations of toxaphene and
dioxathion detected in attic dust at the plaintiffs= properties are not a risk to the health of individuals
living at these properties,@ and, therefore, Athere is no scientific basis to remediate attic dust at these

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Plaintiffs represented in briefing that the parties could possibly enter a stipulation regarding
the interpretation of Anon-detect@ lab results. The Court encourages the parties to discuss this issue
before trial, but it will not exclude expert testimony on the basis of a stipulation to which the parties
have not yet agreed. If the parties agree to a stipulation, Plaintiffs may reassert any objection they
have to Garabrant=s testimony.
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properties.@ Exhibit A to Memorandum at 6, Hollingsworth v. Hercules, Inc., No. 2:15-CV-113-KSMTP (S.D. Miss. Sept. 29, 2016), ECF No. 68-1. Plaintiffs contend that they are entitled to remediation
even in the absence of demonstrable harm to their property.
As Plaintiffs= counsel is aware, the Court has previously addressed this issue. In Phillips, the
Mississippi Supreme Court affirmed a lower court=s finding that Athere were sub-lethal levels of PCP
produced into Phillips= lake and that the proof was not sufficient to require a restoration of the lake and
its previous unpolluted state.@ Phillips v. Davis Timber Co., 468 So. 2d 72, 79 (Miss. 1985). However,
the plaintiff was Aentitled to an injunction enjoining and prohibiting further PCP pollution into his lake
. . . .@ Id. Therefore, Millner=s Aopinions may be relevant to the Court=s consideration of whether the
Plaintiffs are entitled to a mandatory permanent injunction, requiring the Defendant to remediate the
Plaintiffs= properties.@ Blackard v. Hercules, Inc., No. 2:12-CV-175-KS-MTP, 2014 U.S. Dist. LEXIS
97110, at *15-*16 (S.D. Miss. July 17, 2014) (citing Phillips, 468 So. 2d at 79).
Moreover, Millner=s opinion regarding the need for remediation is relevant to the value of the
properties and, therefore, Plantiffs= damages. In his appraisal of 138 W. 8th Street, Plaintiffs= expert,
Joe Parker, considered the Aanalytical reports and remediation recommendations for the propert[ies]@ in
forming his opinion as to the property=s current value. Exhibit 11 [72-11] at 38. He stated that an
Ainformed buyer will not buy the property when an equally desirable alternative property exists that
does not have the noted environmental problems or require environmental remediation.@ Exhibit 11 [7211] at 39.

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Therefore, the Court denies Plaintiffs= motion, but if either party wants the Court to give a
limiting instruction for testimony regarding remediation, they are free to request such at trial.
IV. CONCLUSION
For these reasons, the Court denies Plaintiffs= Motion to Exclude [65] testimony of Dr. David
Garabrant and denies Plaintiffs= Motion to Exclude [67] testimony of Dr. Glenn Millner.
rd

SO ORDERED AND ADJUDGED this

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day of January, 2017.

s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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