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Berry v. Armstrong Rubber Co.

Citation: 23 ELR 21117
No. Nos. 91-1934, -1996, 989 F.2d 822/(5th Cir., 05/03/1993)

The court holds that a former tire manufacturer is entitled to summary judgement on state law and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims because plaintiff property owners failed to establish a claim under CERCLA or Mississippi trespass and nuisance laws, and the district court properly rejected the testimony of the property owner's expert witness. Property owners sued a former tire manufacturer alleging that it had dumped hazardous chemicals on or near their properties which contaminated their land and groundwater. The court holds that the testimony of the property owners' expert witness is inadmissible because the evidence presented relied on work done by others, was not based on tests done on the properties at issue, and was outside the expert's areas of expertise. The court holds that the property owners, even after two years of discovery, did not produce sufficient evidence to support their CERCLA claims. The court also holds that the property owners did not present evidence sufficient to support their nuisance or trespass claims. There is no evidence that a public right has been injured and no showing of a level of pollutants that could endanger the public. Moreover, under Mississippi law, a decrease in market value caused by a "stigma" is not compensable without a showing of physical harm to the property.

Counsel for Plaintiffs-Appellants
Stuart Smith
Uptown Sq.
200 Broadway St., Ste. 226, New Orleans LA 70118
(504) 865-9758

Counsel for Defendant-Appellee
Robert Weaver
Watkins, Ludlam & Stennis
P.O. Box 427, Jackson MS 39205
(601) 949-4900

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and ROSENTHAL, District Judge.*