Freeman v. Blue Ridge Paper Products, Inc.

Filing 304

MEMORANDUM OPINION AND ORDER granting (139) Motion for Summary Judgment in case 2:08-cv-00035; granting (130) Motion for Summary Judgment in case 2:08-cv-00036; granting (133) Motion for Summary Judgment in case 2:08-cv-00037; gr anting (130) Motion for Summary Judgment in case 2:08-cv-00038; granting (130) Motion for Summary Judgment in case 2:08-cv-00039; granting (120) Motion for Summary Judgment in case 2:08-cv-00291. Signed by District Judge J Ronnie Greer on 9/13/2012. Associated Cases: 2:08-cv-00035 et al. (RET)

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

BETH FREEMAN
v
BLUE RIDGE PAPER
PRODUCTS, INC.

)
)
)
)
)
)

NO: 2:08-CV-35
CONSOLIDATED

MEMORANDUM OPINION AND ORDER
The defendant filed a “Second Motion for Summary Judgment as to All Claims–Failure of
Proof and No Proximate Cause,” [Doc. 139], on June 15, 2012. The defendant frames the issue as
“[d]id Plaintiff provide sufficient eviden[ce] to create a genuine issue of material fact as to what the
condition of the water in the Pigeon River is when it flows into Tennessee and through Cocke
County, Tennessee.”

The defendant has rephrased the issue more specifically as follows:

“[P]laintiffs in an environmental nuisance action should not be allowed to establish proximate cause
without showing (1) the chemical composition, concentration, and origin of the alleged interference;
and (2) the scientifically verifiable health risks created by the exposure.” The defendant asserted
at the August 23, 2012 hearing on the motion that expert proof is needed to show these two things.
Of course, the plaintiff disagrees. For the reasons that follow, this Court agrees with the defendant.
As such, the motion for summary judgment is GRANTED, [Doc. 139].
I. Facts
The plaintiff and class members own real property along the Pigeon River in Cocke County,
Tennessee. The defendant operates a paper mill in Canton, North Carolina, twenty-six miles upriver
from the North Carolina-Tennessee state line. The defendant discharges effluent into the Pigeon

River pursuant to a permit issued by the State of North Carolina. Plaintiff alleges that this effluent
contains “pollutants” that pose “dangers” and “chemicals” with “potentially adverse health effects.”
Defendant claims the water of the Pigeon River is “not adversely impacted by any action of the
Canton Mill.”
Plaintiff brings this action for private nuisance. She claims that “Defendant’s annual
discharges into the Pigeon River of tens of millions of pounds of chemicals in its effluent directly
results in a substantial and unreasonable interference with Plaintiff and Class members’ lands in
Cocke County, Tennessee.” However, plaintiff admits that she has no test data to support her
claims.
Nonetheless, plaintiff disclosed several experts who she plans to call as witnesses. First, the
plaintiff disclosed John McElligott, M.D., F.A.C.P., M.P.H. as a medical doctor specializing in
occupational health and safety. He was expected to testify to the genotoxic effect of the mill’s
effluent and the plaintiff’s fear of the river’s water.1 However, it is undisputed that Dr. McElligott
has not tested the water in Tennessee. It is also undisputed that Dr. McElligott does not have any
documents or materials that indicate what substances are in the water as it flows through Cocke
County.
Second, the plaintiff intends to call Mr. Jerry Clark, CSP, CIH, a certified industrial
hygienist. Mr. Clark was expected to testify to the genotoxic effects of the chemicals discharged
by the mill. He admits, however, that he is “not aware of a scientifically designed, comprehensive
environmental study of the quantity and concentrations of agents discharged in the Blue Ridge Paper

1

On August 15, 2012, the United States Magistrate Judge filed an Order, [Doc. 249], granting Defendant’s
motion to exclude Dr. John McElligott from testifying at trial as an expert witness for the Plaintiff. The plaintiff has
appealed this Order, [Doc. 271]. The Court has not yet ruled on this objection. However, for the purposes of this
motion, the Court will assume that Dr. McElligott’s testimony is admissible despite the magistrate judge’s decision.

2

Product, Inc. waste stream into the Pigeon River and their downstream concentrations or
environmental fate.” Further, he made no attempt to quantify the actual or theoretical risk to the
health of the downstream receptors.
Third, the plaintiff had disclosed plans to offer Mr. David W. Weekley, RPIH, as a witness.
Mr. Weekley is a registered industrial hygienist who was to address the empirical sampling of water
extracted from the river at various locations. His testimony was to address the quality of the water
as it flows past the plaintiff’s property. However, the plaintiff withdrew Mr. Weekley’s name as one
of her experts in her amended expert disclosures of April 16, 2012. On this same date, the plaintiff
disclosed a laboratory report entitled “Pigeon River Study.” It set forth analysis of water samples
drawn from the Pigeon river on April 11, 2012. Neither Dr. McElligott nor Mr. Clark have reviewed
this study.
Defendant’s expert reports that there are no human health, human welfare or ecological
health concerns that can be related to the mill due to the water quality of the Pigeon River. This
expert opines that many Tennessee tributaries, which do not meet Tennessee water quality standards,
contribute to the river’s color, foam and substantive makeup. Another defense expert would testify
that the mill’s discharge does not represent a threat to human health in the Pigeon River. He further
opines that there are numerous other dischargers downstream from the mill that affect the river. This
expert analyzed the plaintiff’s April 16, 2012 report and concluded that the samples from the river
raise no concern for human health, ecological health or aesthetics. He further concluded that
influences other than the mill have a detrimental effect on the river, namely Waterville Lake, Bethel
and Cosby Schools, Newport treatment facilities, and runoff from urban and agricultural areas.
II. Summary Judgment Standard

3

Summary judgment is proper where “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In ruling on a motion for
summary judgment, the Court must view the facts contained in the record and all inferences that can
be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis,
Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility
of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial
for resolving a material factual dispute. Id. at 322. A mere scintilla of evidence is not enough.
Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797, 800 (6th Cir. 2000). This
Court’s role is limited to determining whether the case contains sufficient from which a jury could
reasonably find for the non-moving party. Anderson, 477 U.S. at 248-49; Nat’l Satellite Sports, 253
F.3d at 907. If the non-moving party fails to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323. If this Court concludes that a fair-minded jury could not return
a verdict in favor of the non-moving party based on the evidence presented, it may enter a summary
judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.
1994).

4

The party opposing a Rule 56 motion may not simply rest on the mere allegations or denials
contained in the party’s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing party must
affirmatively present competent evidence sufficient to establish a genuine issue of material fact
necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists cannot defeat
a properly supported motion for summary judgment. Id. A genuine issue for trial is not established
by evidence that is “merely colorable,” or by factual disputes that are irrelevant or unnecessary. Id.
at 248-52.
III. Analysis
Again, the plaintiff alleges that “‘through operations at its pulp and paper mill . . . located
upstream on the Pigeon River in Canton, North Carolina, [defendant] has substantially interfered
with Plaintiff’s and the proposed Class’ rights to use and enjoy their downstream real property’ by
discharging ‘waste, chemicals, and other contaminants into the Pigeon River,’ making the river
brown in color, odorous and often filled with foam.’” The defendant claims that the plaintiff cannot
prove this private nuisance claim because plaintiff cannot establish that defendant’s actions are the
proximate cause of plaintiff’s damages.
This Court must apply North Carolina substantive law in this case. In North Carolina, “[t]o
recover in nuisance, plaintiffs must show an unreasonable interference with the use and enjoyment
of their property.” Jordan v. Foust Oil Co., Inc., 116 N.C.App. 155, 167, 447 S.E.2d 491, 498 (1994)
(citation omitted). “‘The interference must be substantial and unreasonable. Substantial simply
means a significant harm to the plaintiff and unreasonably means that it would not be reasonable to
permit the defendant to cause such an amount of harm intentionally without compensating for it.’”
Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 553 S.E.2d 431, 455-56 (Ct. App. N.C. 2001)

5

(quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 88, at 626 (5th ed.1984)).
The defendant argues the lack of proximate cause in two ways. First, it contends there is a
lack of proximate cause as to the chemical composition, concentration, and origin of the alleged
interference. In other words, defendant claims that the plaintiff cannot prove that the chemicals
released by the defendant at the mill are chemicals that are present in the water as it flows by her
property in Cocke County, Tennessee. Second, the defendant states that plaintiff cannot show the
scientifically verifiable health risks created by the exposure to chemicals released from the mill. The
defendant argues that to establish proximate cause in these two situations, the plaintiff must prove
each of these by competent expert proof. Plaintiff counters that expert proof is not required because
the facts in the case are such that any layman of average intelligence and experience would know
what caused plaintiff’s injuries. In other words, plaintiff in essence claims that chemicals dumped
upstream by the mill necessarily flow downstream to Cocke County and beyond2 and no expert
testimony is necessary to establish their presence in the river in Cocke County or their concentration.
Both parties cite several cases to support their respective positions. This Court has thoroughly
reviewed the cases as well as some that were not cited by the parties. A short summary of the
pertinent cases follow. Then the Court will address the first claim of the defendant, for it decides
the motion.
Basically, the cases cited by the petitioner fall into one of two camps–well contamination
cases or flooding cases. Within these two camps, there are cases that could arguably support either

2

During argument on motions before the Magistrate Judge on September 5, 2012, plaintiff’s counsel took the
position that any landowner along any of the waterways through which the Pigeon River flows on its way to the Gulf
of Mexico could maintain a nuisance action against Blue Ridge based on the discharge from the Canton mill and could
always create a jury question without analytical testing to establish the chemical concentration in the water or expert
testimony to establish that defendant’s actions caused substantial damage to the landowner.

6

position. However, after analyzing the cases’ various points of law and factual situations, this Court
finds that the defendant’s position must prevail.
The well contamination cases do not specifically address whether expert proof is necessary
to determine proximate cause. In all of them, however, there was some form of expert proof,
whether it was by testimony or reports. However, the cases are instructive on the amount of
evidence needed to survive summary judgment based on causation.
In Masten v. Texas Co., 140 S.E. 89 (N.C. 1927), the evidence showed that the defendants
installed a gasoline tank and pump one hundred and thirty feet upgradient from the plaintiff's well.
This tank was the only tank “within half a mile or more of the plaintiff’s home,” and the plaintiff's
well became contaminated with gasoline after the installation of the defendant's gasoline tank. Id.
at 90. The court found that this evidence was “more than a scintilla, and sufficient to be submitted
to a jury.” Id.
The North Carolina Supreme Court addressed a similar situation in Wilson v. McLeod Oil
Co., 398 S.E.2d 586, 602-03 (N.C. 1990). In that case, the defendants argued that they were not
responsible for contaminating certain wells because the forecast of evidence indicated that
defendants’ site was downgradient from the wells. Id. at 602. The plaintiffs argued that:
there could be a lower aquifer below the upper aquifer with a
different flow direction from that of the upper aquifer ... [and] that the
depositions of the experts do not foreclose the possibility of the
existence of this lower aquifer whose flow direction might bring the
contamination to the Hill and Pagura properties from the Mini-Mart
property ... which is “downhill” from the Hill and Pagura properties.
Id. at 602. An expert testified by deposition that it was possible that a lower aquifer could run in a
different direction. Id. The court held that evidence of the defendants’ contaminated site as a
“possible” source of the plaintiffs’ contamination is a “slender reed upon which to base causation”
7

and an insufficient forecast of evidence. Id. The court stated that “[t]o allow a jury to consider the
question of whether there is a lower aquifer flowing in a different direction, when the only expert
testifying on this matter refuses to answer that very question based on the data collected, is
improper.” Id.
In Ammons v. Wysong & Miles Co., 431 S.E.2d 524 (N.C. Ct. App. 1993), landowners sued
an adjacent landowner seeking damages for well contamination allegedly caused by the adjacent
landowner’s manufacturing activities. Noting that causation is an element of the nuisance claim
asserted by the plaintiff, i.e. that “in order to sustain an action for nuisance, a plaintiff must show
that defendants’ actions caused him substantial damage,” id. at 528, the Court held, relying on
Wilson v. McLeod Oil Co., that expert testimony which established only that contaminants “could”
travel to plaintiff’s property, not that they actually traveled, was insufficient for plaintiff to avoid
summary judgment. Id. at 528-29. However, in James v. Clark, 454 S.E.2d 826 (N.C. Ct. App.
1995), expert testimony identified the defendant's site as the only potential source of contamination
for the plaintiff’s well. Thus, this was sufficient to create a genuine issue of material fact.
The last well contamination case to discuss is Ellington v. Hester, 487 S.E.2d 843, 846 (N.C.
Ct. App. 1997). In that case, the plaintiffs sued defendants for allegedly contaminating their well
water with gasoline from defendant’s underground storage tank. Id. at 843. The properties were
adjacent to each other, and they shared a common aquifer. Id. When the plaintiffs noticed problems
with their water, they contacted the Division of Environmental Management of the North Carolina
Department of Environment, Health, and Natural Resources (“DEHNR”). Id. DEHNR performed
several tests on the water samples taken and concluded that the plaintiffs’ water contained
components of gasoline and petroleum products. Id. at 843-44. Steve Williams, with DEHNR,

8

investigated the matter. Id. at 844. Two underground storage tanks (“UST”) were located on the
defendant’s property. Id. Neither contained gasoline at the time of the investigation. Id. However,
they had contained gasoline at one time, and they were located “a couple hundred feet upgradient
from the Ellington well.” Id. The USTs were subsequently removed from the defendant’s property,
and the soil tested around where the tanks had been located. Id. These tests revealed that gasoline
had leaked from the larger tank. Id. The defendants then began procedures to clean up the site. Id.
The next year, the plaintiffs filed suit for nuisance and other claims based on the presence of
gasoline in their well water. Id.
At the end of the trial, the trial court granted the defendant’s motion for a directed verdict,
and the plaintiffs appealed. Id. The court of appeals upheld the trial court’s decision. Id. at 845.
The court stated:
Here, the plaintiffs have failed to show that a release of
gasoline from the UST located on the defendants' property caused the
contamination in the plaintiffs' well water. Plaintiffs offered the
testimony of several expert witnesses at trial. Steve Williams, a
hydrologist employed by DEHNR, investigated potential sources of
contamination of the plaintiffs' well water. Mr. Williams testified that
the plaintiffs' well water was contaminated with gasoline and that soil
tests indicated that there had been a release of gasoline from the
defendants' 1000 gallon tank sufficient to leave “a strong odor of
gasoline in the soil” removed from underneath the excavated tank.
Although Mr. Williams testified that after he “looked around the
area” he “didn't see any other possible source ... [o]f contamination,”
when asked if he was willing to state an opinion “that Mr. Hester's
gasoline around there was the cause of the Ellington's problem,” he
answered that he did not have “sufficient evidence” to determine that
the Hesters' UST was the source of the contamination of the Ellington
well.
The plaintiffs also offered the expert testimony of J.D. Barker,
an environmental engineer employed by S & ME Environmental
Consulting. Mr. Barker never actually visited either the Hester or the
Ellington properties, but had reviewed the information collected by
DEHNR. Mr. Barker testified that he had not been able to determine
9

the direction of the ground water flow under the Hester property. He
also testified that he was not aware of any contamination in the two
wells located on the defendants' property and that “there's not been
any contamination in the Williard well which is the next-door
neighbor to the Ellingtons.” Mr. Barker also testified that he had not
“been able to identify the source of the contamination” of the
plaintiffs' well. Furthermore, the S & ME “Preliminary Site
Assessment” dated 23 February 1996 states “[a]t this time, there is
insufficient data to identify the cause or combination of causes for the
presence of groundwater contaminants” in the plaintiffs' well water.
Id. at 846
Thus, the court found that the expert testimony offered did not present sufficient evidence
to establish a causal connection between the release of gasoline from the defendants’ UST to the
contaminants found in plaintiff’s well. Id. at 847. None of the experts could testify definitively that
the contamination actually came from the defendant’s tank. Id. As such, the court held that
plaintiffs had failed to present a sufficient forecast of evidence to survive the motion for summary
judgment. Id.
The flooding cases do address whether expert proof is needed to establish proximate cause.
Whether expert testimony is required to establish the element of causation in flooding cases differs
based upon the complexity of the facts presented. See Banks v. Dunn, 630 S.E.2d 1 (N.C. Ct. App.
2006); BNT Co. v. Baker Precythe Dev. Co., 564 S.E.2d 891 (N.C. Ct. App. 2002); Davis v. City of
Mebane, 512 S.E.2d 450 (N.C. Ct. App. 1999). In Davis v. City of Mebane, the plaintiffs’ properties
were repeatedly flooded after a hydroelectric dam was constructed upstream from their respective
properties. 512 S.E.2d at 451. The plaintiffs asserted it was due to the negligent design and location
of the dam. Id. at 451-52. They solely relied upon lay testimony for proof. Id. The defendants
argued that “lay testimony that there was no flooding before the dam was built and significant
flooding after the dam was built [was] not sufficient to survive a motion for summary judgment.”
10

Id. at 453. The North Carolina Court of Appeals held that “lay testimony would not be sufficient
to explain changes in the watershed or in the downstream water flow.” Id. The court held that expert
testimony was required to establish causation “[w]here ... the subject matter ... is ‘so far removed
from the usual and ordinary experience of the average man that expert knowledge is essential to the
formation of an intelligent opinion ... as to the cause of ... [the] condition.’ ” Id. (quoting Gillikin
v. Burbage, 139 S.E.2d 753, 760 (1965)).
In Banks and BNT, the North Carolina Court of Appeals came to an opposite conclusion
based on the facts of those cases. In BNT, the Court distinguished its facts from the facts presented
in Davis. Id. at 895. There, the plaintiffs owned 12 acres immediately south of the defendant's
17.472 acre tract. Id. at 894. The defendant intentionally closed a drainage ditch located on its
property, which caused repeated flooding and substantial damage to plaintiffs' properties. Id. at 894.
Defendant’s expert witness testified that the closing of the ditch had “an insignificant effect” on the
plaintiffs' properties during the major storm events and that the flooding was due to “low elevation.”
Id. at 894. The defendant argued that the plaintiffs failed to prove causation by expert testimony. Id.
at 895. The court stated that “[u]nlike the unusual circumstances in Davis, the facts of the instant
case are such that a layperson could form an intelligent opinion about whether the flooding was
caused by the closing of the ditch.” Id.
The North Carolina Court of Appeals reached a similar decision in Banks. Plaintiff’s
property was located behind defendant’s gas station at the bottom of a steep hill. 630 S.E.2d at 2.
The property line was marked by a small waterway. Id. The defendant dumped sixty-eight
truckloads of fill dirt on the hill behind the gas station. Id. The plaintiff claimed that her property
had never flooded until the dumping of the dirt. Id. There was testimony from an environmental

11

specialist that in his opinion the dumping of the dirt caused the flooding. Id. at 3. The court
distinguished the facts of the case from those in Davis, and held that expert proof was not required
to establish causation, for the flooding “implicates no scientific principle more complex than the
truism that water flows downhill.” Id. at 4.
None of the cases are exactly on point. However, after considering the cases in conjunction,
this Court gleans the following:

(1) A plaintiff must offer competent proof that defendant’s

property or the defendant’s actions were the sole source or cause of the contamination or
interference; and (2) In so showing, a plaintiff must have expert proof of causation if the situation
is complex, or beyond the usual and ordinary experience of the average man.
Here, the plaintiff’s claim of nuisance is based on the quality of the Pigeon River’s water.
Essentially, the plaintiff argues that the defendant admits it discharges a very substantial quantity
of substances into the water. The course of the river flows from the mill for several miles then by
her house. The water in Cocke County has an objectionable odor, foam and color. Plaintiff admits
that she has no evidence that the defendant caused any objectionable odor, foam or color in the water
in front of her house. Moreover, the plaintiff has no expert who will testify that any chemicals or
compounds in the defendant’s effluent are even present in the water in front of her house and
actually cause the odor, foam or color. The defendant’s expert will testify that other sources which
discharge into the water could cause such things.
This is not a situation where the plaintiff’s and defendant’s properties are adjacent and there
are no intervening factors that could cause the problems complained of or be the source of the odor,
foam or color. In addition, the analysis of an effluent’s composition, examination of other sources’
discharges into the water, and the study of chemical reactions of various compounds present in water

12

at various points along miles of a river to determine the causes of odor, foam or color at another
specific place on the river are not simple examinations which a lay person could conduct. These
determinations would have to be made in order to prove that the defendant’s actions of discharging
its effluent in North Carolina caused the interference complained of at the plaintiff’s property in
Tennessee. As stated above, the plaintiff cannot offer such proof. Accordingly, this Court finds that
plaintiff has failed to present a sufficient forecast of evidence to survive the motion for summary
judgment.
Plaintiff makes an additional argument that needs to be addressed. Plaintiff asserts that, even
if expert testimony is required to prove a causal link between defendant’s discharges from the
Canton mill and plaintiff’s alleged injuries, she has offered proof from a medical doctor and certified
industrial hygienist who will testify to opinions that there are harmful substances in the Pigeon River
and “that those substances can reasonably be traced to the Canton mill’s discharges,” creating a
“classic battle of the experts” such that a jury must “evaluate what weight and credibility each expert
opinion deserves.”
Unfortunately for the plaintiff, this does not merely come down to a “battle of the experts”
from which a jury must decide who it believes. According to the record presently before the Court,
the plaintiff’s experts never actually opine that chemicals from the mill actually reach Cocke County
or cause a verifiable risk to the plaintiff class. For example, Jerry H. Clark, an industrial hygienist,
offered the following opinions in his report:
A brief review of the substances that are admittedly
discharged into the Pigeon River by Blue Ridge Paper Products, Inc.
shows that many of the substances are suspected of or known to
cause genotoxic and/or carcinogenic effects.
....
13

In my opinion, plaintiffs downstream from Blue Ridge Paper
Products, Inc. have legitimate and reasonable concerns regarding the
safe use of and access to the surface waters of the Pigeon River due
to chemicals and agents discharged in the Blue Ridge Paper Products'
plant effluent. It seems reasonable to conclude that these conditions
may be causing a negative effect on the economic and emotional well
being of those individuals whose lands abut the Pigeon River due to
impaired opportunity to use the river resource to its fullest potential.
(Emphasis added.) Clark offers no opinion, however that the substances discharged from the
Canton mill 26 miles upstream are present in the river when it reaches Cocke County (rather than
from one of the other discharge points between the mill and Cocke County) nor is he able to say,
even if the substances are present, what their concentration is.
Dr. McElligott, a medical doctor, offers the following opinions listed in the plaintiff’s expert
disclosures:
(I) the chemicals/elements/compounds set forth above which are
discharged into the Pigeon River by Blue Ridge Paper Products, Inc.
are known to cause a myriad of acute, chronic, and/or genotoxic
health problems;
(II) the chemicals/elements/compounds set forth above which are
discharged into the Pigeon River by Blue Ridge Paper Products, Inc.
have the potential to cause a myriad of acute, chronic, and/or
genotoxic health problems on people who live on, near, wade in,
swim in, fish in, or sit in the Pigeon River downstream in Cocke
County, Tennessee from the Canton Mill plant in North Carolina;
(III) it would be reasonable for any landowner on the Pigeon River
in Cocke County, Tennessee downstream from the Canton Mill plant
to: (i) have a fear of being in contact with the water in the Pigeon
River; and (ii) have a fear of using, drinking, eating from, or
swimming in the Pigeon River.
(Emphasis added.) Dr. McElligott was questioned by the defendant about his opinions in his
February 16, 2011 deposition. At that deposition the following exchange took place:
17

Q. Do you know the quantity of any
14

18
19
20
21
22
23
24
25

chemical that is contained within the paper mill's
discharge?
A. No.
Q. Is that something, as a medical
doctor, you would be interested in knowing?
A. Yes. I read your experts, and they
didn't know either. I was hoping I would find
something.

1
2
3"
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Q. The fact that a particular chemical
is present in the discharge at the paper mill, that
doesn't necessarily mean that that chemical is
present when the Pigeon River water flows into
Tennessee, does it, sir?
A. If it's discharged in North
Carolina, and you are saying it's not in Tennessee?
Q. The fact that there may be a
substance or chemical in the discharge of the paper
mill in North Carolina doesn't equate to the fact
that that same chemical is in the water in
Tennessee, does it, sir?
MR. SCOTT: Object to the form.
THE WITNESS: It does not equate to
it, but does not disprove it either.
BY MR. KRIEG:
Q. What testing data have you seen of
what is contained in the water of the Pigeon River
in Cocke County, Tennessee?
A. There's been none done.
Q. What testing have you done?
A. None.
Q. What testing has anyone else done,
to your knowledge?
A. None, to my knowledge.

1
2
3
4
5
6
7
8
9

Q. Have you ever reviewed any data of
testing of water in Tennessee?
A. No.
Q. So it would surprise you to learn
that the Tennessee Department of Environment and
Conservation, through their tests, have determined
that there are no harmful effects either to aquatic
life or human life from the water in the Pigeon
River in Tennessee?
15

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

MR. SCOTT: Object to the form.
THE WITNESS: Have I read that?
BY MR. KRIEG:
Q. Would it surprise you to know that
their tests have concluded that?
A. No. I have seen some of their
tests before that I vaguely remember when we did the
previous case, but I don't know what the grade of
the river is at this point in time, and I don't know
that there's been any sediment testing done, that I
have seen, and I think those are all still up in the
air. Again, I have not reviewed the current
literature on what's going on with the river, but if
this proceeds further, I will certainly do that.
Q. Do you have any documents or any
materials that indicate what substances are in the

1
2
3

water as it flows down the Pigeon River through
Cocke County, Tennessee?
A. No.

Deposition Pages 20-23 (emphasis added).
Based on the above evidence, this Court cannot conclude that the plaintiff has offered
sufficient expert proof of a causal link between the discharges from defendant’s mill and harm to
the plaintiff class nor of the scientifically verifiable health risks created by the exposure to
chemicals released from the mill in order to withstand summary judgment. The experts merely
opine that chemicals like those discharged by the mill may or have been known to cause harmful
effects. However, there is no testimony to show that the chemicals discharged from the mill, (1) are
present in the water in Cocke County, Tennessee; and (2) are present in quantities which cause the
health risks described.
IV. Conclusion
For the reasons set forth above, the defendant’s motion is GRANTED, [Doc. 139], and the
class plaintiffs’ case is DISMISSED on the merits.
16

So ordered.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

17