694 F. App'x 974
6th Cir.2017Background
- In 2009–2010 the Ohio EPA (OEPA) issued notices of violation to Nucor Steel Marion and the parties resolved those matters by a consent order (DFFO) that did not admit liability or identify Nucor as the source of elevated manganese.
- Plaintiffs (Bush and Tolle), Marion property owners, filed an Ohio-state-law class action alleging property damage from manganese contamination (indirect trespass and nuisance); the action was removed to federal court and the plaintiffs were designated bellwether plaintiffs.
- Plaintiffs primary evidence of health risk and property damage was expert toxicologist Dr. Jonathan Rutchik; the district court excluded his testimony under Rule 702 as unreliable and conclusory.
- On the eve of trial plaintiffs attempted to (a) broaden liability theory from manganese to particulate matter (PM), (b) disclose four OEPA fact witnesses after discovery closed, and (c) seek judicial notice/estoppel from EPA documents and other litigation; the court (i) barred the new witnesses under Rule 37, (ii) forbade expanding the theory without amending the complaint, and (iii) denied judicial notice/estoppel without prejudice.
- Plaintiffs stipulated to final judgment for Nucor (anticipating a directed verdict at trial) and appealed the evidentiary and pleading rulings; the Sixth Circuit affirmed, holding plaintiffs could not make a prima facie case without admissible evidence linking manganese levels on each property to likely harm to human health.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Standard for proving damages in Ohio indirect trespass | Plaintiffs contend the court wrongly required proof of likely harm to human health (general and specific causation) to show property damage. | Nucor argued plaintiffs must show substantial physical damage or interference (not mere detection), which can be shown by demonstrating contaminant concentrations likely to harm human health. | Court: Affirmed that under Ohio law plaintiffs must show substantial physical damage/interference; evidence that contaminant levels are likely to harm human health is a permissible and appropriate way to establish that element. |
| 2. Exclusion of Dr. Rutchik (Rule 702/Daubert) | Rutchik's opinions connect manganese levels to health risk; plaintiffs say he is qualified and his methods are reliable. | Nucor argued Rutchik's opinions were conclusory, unsupported by testing or record evidence, and not reliably applied to individual plaintiffs. | Court: Affirmed exclusion—Rutchik's opinion was too general, not validated by testing, lacked factual support, and thus unreliable. |
| 3. Exclusion of four OEPA fact witnesses (Rule 26/37) | Plaintiffs argued the testimony was foreseeable and defendants could "easily guess" their substance. | Nucor argued late disclosure after close of discovery was unfair prejudice and would disrupt trial. | Court: Affirmed sanction excluding the witnesses—late disclosure was not substantially justified or harmless under the Howe factors. |
| 4. Restriction of theory to manganese (pleading/Rule 15 & Rule 54(c)) | Plaintiffs sought to expand to PM (particulate matter) and alternatively sought relief under Rule 54(c). | Nucor argued the complaint alleged harm from manganese only; PM is a broader, different theory that defendants were not put on notice of. | Court: Affirmed restriction—plaintiffs could not broaden theory to PM without leave to amend; Rule 54(c) does not permit changing factual basis of claim absent notice and opportunity to respond. |
| 5. Denial without prejudice of judicial notice and judicial estoppel | Plaintiffs sought judicial notice of EPA documents and estoppel based on other litigation and the DFFO. | Nucor contended the documents were irrelevant to the manganese-only claim and could not substitute for admissible evidence. | Court: Affirmed denial without prejudice; plaintiffs failed to preserve a later objection and did not argue plain error, so issue not reviewed. |
Key Cases Cited
- Pride v. BIC Corp., 218 F.3d 566 (6th Cir. 2000) (expert testimony must be tested and validated; untested hypotheses may be excluded)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court gatekeeping standard for expert reliability)
- Chance v. BP Chems., Inc., 670 N.E.2d 985 (Ohio 1996) (distinguishing direct and indirect trespass; indirect trespass requires substantial physical damage or interference)
- Baker v. Chevron U.S.A. Inc., [citation="533 F. App'x 509"] (6th Cir.) (under Ohio law, mere detection is insufficient; plaintiffs must show likely harm to health to establish substantial injury in indirect trespass)
- Little Hocking Water Ass'n, Inc. v. E.I. du Pont Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015) (interpreting Ohio trespass principles in contamination context; likelihood of harm to health can suffice)