Michael ABRAMS, Plaintiff, and Harry Ayers, III; Charles M. Baker; Connie J. Baker; Catherine Bell; Chantelle Blackburn; Denver Blanton; Denzil Blanton; Beth Bostic; Kenneth Brammer; Jeremy Burt; Randy Bush; Melissa Byrd; Randall Byrd; Francisco Caballero; Stacy Clark; Vincent D. Clark; Alissa Columber; Robert Cunningham; Russell Davis; Cynthia Deemer; Marcus Deemer; Shane Dickerson; Amanda Dunn; Jesse Lee Dutton; Kristin Edens; Ernest L. Elkins; Charles Elliott; Michele Fetter; Brittany Fischer; Jeremy Foster; Derek Frazee; Jodi Frazee; David Garrison; Linda Garrison; Jim Gattshall; William Gattshall; Carol Gekler; Ronald Gekler; Teresa Gendrow; Tracy Graham; Michael Greene; Janet S. Gullett; Chantell Hall; Ronald E. Hall; Ronald Hall, Jr.; Jerry Hanahan; Jeanna Hanshaw; Kattie Harmon; Ryan Harmon; Diana Hart; Richard Hart; Carol Heenan; Brook Hesson; Cecil Holt; Lyndee Holt; Sasha Huffman; Velma Hughes; Beverly Isaly; Jeffrey Jackson; Judy Jackson; Geraldine Johnson; Dora Jones; Steve Kilgore; Matthew Kincaid; Penny King; Jack Kyser, Jr.; Cathryn Lindsay; Mary C. Mackan; Elizabeth Malone; Wendell Malone; Cory Marks; James Maze; Linda Maze; Margart Meadows; Bonita Monahan; Shyla Monahan; Gladys Montgomery; Larry Montgomery; Ralph B. Morrow; Phyllis Murphy; Carolyn Oskins; Barbara Parker; Kenneth Parker, Sr., Kenneth Ferrail Parker; Shinerr Parker; Jennie Parr; Todd Parr; Chloris Price; Ray Price; Katrina Priesler; Charlotte A. Quick; Luetta Quick; Michael Quick; Christopher Reed; Karen Reynolds; Tonya Sandy; Jane Scharf; Richard L. Schwadgrer; Joanne Scott; Laura Sedlock; Joseph Skatzes; Barbara Smith; Charlene Smyth; Gregg Snare; Mary Sontag; Donna Sutherland; Justin Tanner; Tahitja Tanner; Ronald Tolle; Jane Weston; Jacqueline Whitaker; Bonnie White; Lewis Williams; Nancy Williams; Courtney Wise; and Melinda Wood, Plaintiffs-Appellants, v. NUCOR STEEL MARION, INC., Defendant-Appellee.
No. 15-4422
United States Court of Appeals, Sixth Circuit.
Filed May 25, 2017
694 Fed. Appx. 974
Marc J. Kessler, Hahn, Loeser & Parks, Columbus, OH, Derek E. Diaz, Hahn, Loeser & Parks, Cleveland, OH, for Defendant-Appellee
BEFORE: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges:
SUHRHEINRICH, Circuit Judge.
In this diversity class-action lawsuit alleging state-law claims of indirect trespass and nuisance,1 Plaintiffs-Appellants, Randal Bush and Ronald Tolle (Plaintiffs), appeal several unfavorable pre-trial evidentiary rulings. After the district court issued these rulings, Plaintiffs and Defendant-Appellee Nucor Steel Marion, Inc. (Defendant), agreed that if they proceeded to trial, it would result in a directed verdict for Defendant. Consequently, Plaintiffs stipulated to a final judgment in favor of Defendant, which led to this appeal. For the reasons set forth below, we affirm the judgment of the district court.
I. Background
A. Facts
In 2009 and 2010 the Ohio EPA (OEPA) sent Defendant a number of “notices of violation” alleging emission-regulations infractions by Defendant at its mini-mill in Marion, Ohio (the Facility). Defendant resolved these allegations by entering into a negotiated settlement with the OEPA: the “Director‘s Final Findings and Orders” (DFFO). In the DFFO, Defendant agreed to comply with the OEPA‘s orders and waived any rights to appeal in return for full settlement of the disputed claims and without any “admission of fact, violation or liability.” R. 74-2 at 1624.
In the DFFO, the OEPA noted that manganese levels in the Marion area were “at elevated levels that are unacceptable for protecting public health.” Id. at 1617. However, the DFFO did not address the source of the elevated levels of manganese or find Defendant in violation of any regulatory obligation.
B. Procedural History
On December 26, 2012, Plaintiffs’ attorneys filed the class-action complaint in the Marion County Court of Common Pleas, alleging nuisance and indirect-trespass claims under Ohio law. The claims were based solely on harm to their property from manganese. On January 18, 2012, Defendant timely removed this case to the United States District Court for the Northern District of Ohio, Western Division. Prior to discovery, the class action was transformed into a bellwether trial,2 and Plaintiffs were designated as the bellwether plaintiffs to test the claims of the class.
Following the close of discovery, Defendant moved to exclude Plaintiffs’ expert toxicology witness, Dr. Jonathan Rutchik.3 Dr. Rutchik was Plaintiffs’ key witness, as he was to provide the evidence necessary to establish the alleged damages to Plaintiffs’ property. Perhaps sensing that the district court was likely to exclude Dr. Rutchik, and that without his testimony they would not be able to make out a prima facie case, Plaintiffs attempted to bolster the record before the district court.
First, they indicated to the district court that they would now also be relying on the DFFO to establish damages to their properties from manganese. Second, Plaintiffs “adjusted” their theory of liability by alleging property damage from Defendant‘s particulate-matter emissions, or PM,4 as a whole (of which the manganese here is only one component). To this end, one month before trial, and after discovery had closed, Plaintiffs (1) disclosed four OEPA fact witnesses, who presumably5 would have testified to Nucor‘s standing with the OEPA and testified about the DFFO; (2) began to claim and speak of harm to their properties from PM, rather than from only manganese, in documents submitted to the court;6 (3) sought judicial notice of eight U.S. EPA documents addressing PM and two more documents concerning manganese in particular (presumably to take the place of expert testimony on the subject); and (4) asked the district court to judicially estop Defendant from advancing arguments that allegedly contradicted litigation positions concerning PM that Defendant had taken in unrelated lawsuits. As a result, Defendant moved to exclude the DFFO and the OEPA witnesses, restrict Plaintiffs’ claims to harm from manganese alone, and deny Plaintiffs’ motions for judicial notice and judicial estoppel.
In the second order, the district court first excluded the DFFO because it is a consent decree and is therefore inadmissible under
On appeal, Plaintiffs challenge the district court‘s: (1) characterization of the proofs needed to establish damages in an Ohio indirect-trespass claim; (2) exclusion of Dr. Rutchik as an expert witness; (3) exclusion of the four OEPA fact witnesses; (4) restriction of their theory of liability; and (5) denial, without prejudice, of their motion for judicial notice and request for judicial estoppel.
II. Analysis
Unless Plaintiffs can prevail on the first two issues here, it is extremely doubtful that they will be able to show damages and make out a prima facie case under a theory of harm from manganese. Plaintiffs’ last three challenges on appeal, much like their corresponding course of action on these issues in the district court, represent a “Hail Mary” attempt to get their case to trial in the absence of Dr. Rutchik.
A. Proofs Needed to Establish Damages in an Ohio Indirect Trespass Claim
Plaintiffs contend that the district court erred by “requiring general and specific causation proof that a contaminant deposited on a particular property caused a specific personal injury to a specific owner to establish the fact that a contaminant is ‘harmful to humans’ in order to establish their indirect trespass claim for property damages. Appellants’ Br. 16-17. Citing Baker v. Chevron U.S.A. Inc., 533 Fed. Appx. 509 (6th Cir. 2013) and Little Hocking Water Ass‘n, Inc. v. E.I. du Pont Nemours & Co., 91 F. Supp. 3d 940 (S.D. Ohio 2015), the district court ruled that to establish damages, “Plaintiffs will need to
Under Ohio law, trespass is an unlawful entry upon the property of another. Chance v. BP Chems., Inc., 77 Ohio St. 3d 17, 21, 670 N.E.2d 985, 991 (1996). Unlike suits for direct trespass where damages are presumed, to establish indirect trespass a plaintiff must show that a substance invaded the land due to defendant‘s intentional act and caused “some type of physical damages or interference with the use [of the property].” Id. at 993; Brown v. Scioto Cty. Bd. of Comm‘rs, 87 Ohio App. 3d 704, 622 N.E.2d 1153, 1161-62 (1993). Furthermore, the damage or interference must be “substantial.” Baker, 533 Fed. Appx. at 522-23 (citing Lueke v. Union Oil Co. of Cal., No. OT-00-008, 2000 WL 1545077, at *7 (Ohio Ct. App. Oct. 20, 2000)); Brown, 622 N.E.2d at 1161 (quoting Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 530 (Ala. 1979)). What constitutes “substantial” interference or damage to a plaintiff‘s property is determined on a case-by-case basis. See Chance, 670 N.E.2d at 993. But, a plaintiff “ha[s] to show something more than the ‘mere detection’ of [the invading substance] on [his] propert[y] to establish the physical damage prong of an indirect trespass claim.” Baker, 533 Fed. Appx. at 522-23.
There appears to be no Ohio case that explicitly deals with whether substantial physical harm or interference in an indirect trespass case can be established by demonstrating an invading contaminant‘s harmfulness to human health. However, three federal cases interpreting Ohio law, Baker, Little Hocking, and Brown v. Whirlpool Corp., 996 F. Supp. 2d 623 (N.D. Ohio 2014), have applied Ohio‘s abovementioned principles in this context, and therefore provide us with the most guidance.
In Baker, this court held that the plaintiffs failed to establish the invading contaminant was harmful to human health and were therefore unable to establish a substantial injury to or interference with their property, because there was no evidence that any plaintiff would live under conditions such that the invading contaminant would cause an increased risk of cancer. Baker, 533 Fed. Appx. at 524. Additionally, as the district court in this case noted, Baker makes clear that each plaintiff must make an individualized showing of harm in a bellwether trial. Id. at 523. In Little Hocking, the court rejected the defendant‘s contention that without definitive proof of harm to human health, the plaintiff could not show substantial physical damage to property, thereby implying that something less than definitive proof, i.e., a showing of likelihood of harm to human health, would be sufficient. See Little Hocking, 91 F. Supp. 3d at 982. In Whirlpool Corp., the court dismissed the plaintiffs’ indirect-trespass claim for the invasion of benzaldehyde emissions where the complaint merely alleged detection of the presence of benzaldehyde in the plaintiffs’ attics, and the plaintiffs’ expert report made no mention of, much less established, the “risks to human health from those amounts of benzaldehyde.” Whirlpool Corp., 996 F. Supp. 2d at 641 (emphasis added).
In essence, all three cases interpret Ohio law as saying that in an Ohio indirect-trespass claim, a plaintiff may establish substantial physical damage to, or interfer-
Thus, the real question was, and still remains, whether Plaintiffs have any admissible evidence that can show that the level of manganese on their properties is likely to harm human health and therefore establish substantial physical damage or interference with their property.
B. Exclusion of Dr. Rutchik as an Expert Witness
Plaintiffs put forward Dr. Rutchik‘s expert testimony as the only evidence to “connect the dots” between the manganese levels on each Plaintiffs property and the alleged likely harm to human health caused by that manganese.7 The district court excluded Dr. Rutchik‘s testimony under
First, the district court found that:
Dr. Rutchik is a Board Certified physician in neurology and occupational medicine, and specializes in the “evaluation of individuals and populations with suspected neurological illness secondary to exposure of various agents” (Doc. 68-1 at 1). After reviewing soil testing and air modeling data from Plaintiffs’ environmental expert Lance Traves, medical studies regarding exposure to manganese, regulatory guidelines, and based on his own knowledge and experience in medicine and toxicology, Dr. Rutchik concludes, to a reasonable degree of medical certainty, “that persons who reside full time in the ‘class area’ [0.25 to 0.5 miles from Nucor‘s steel plant] for a period of ten (10) years or more will suffer harm to their health caused by such chronic exposure to such elevated levels of manganese” (id. at 3).
R. 86 at 2884.
The district court then articulated the standards used to evaluate expert testimony:
Expert opinion testimony involves application of “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.”
Federal Evidence Rule 702(a) . Expert testimony is admissible only if the trial court finds the testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 594-95 (1993). Under Rule 702, this Court‘s inquiry is a “flexible one,” focusing on “the principles and methodology [an expert uses], not on the conclusions that they generate.” Id. at 595. This Court gauges reliability according to such factors as “(1) whether the theory or technique has been tested and subjected to peer review and publication, (2) whether the potential rate of error is known, and (3) its general acceptance.” Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). Plaintiffs bear the burden of showing by a preponderance of the evidence that the experts’ testimony is admissible. Daubert, 509 U.S. at 579 & n.10.
Id. at 2883-84.
Dr. Rutchik‘s opinion is not admissible under
Federal Evidence Rule 702 . His comparison of the results of Traves’ air and soil analyses with the EPA‘s reference concentration for manganese and eight scientific articles is not “the product of reliable principles and methodology.”Federal Evidence Rule 702 ; cf. Best v. Lowe‘s Home Ctrs., Inc., 563 F.3d 171, 180 (6th Cir. 2009) (finding medical expert‘s opinion and deferential diagnosis methodology were sufficiently reliable to warrant admissibility). Dr. Rutchik‘s opinion is conclusory and his assertion that all Plaintiffs have been adversely affected by Nucor‘s manganese emissions is too broad, general, and vague to be helpful to the trier of fact. See Baker, 533 Fed. Appx. at 523-24 (excluding expert testimony for similar reasons). Dr. Rutchik‘s opinion that Plaintiffs “will suffer harm to their health” is not based on any examination or testing and does not address the type or degree of harm Plaintiffs will suffer (see Doc. 68-9 at 6). Nor is Dr. Rutchik‘s opinion supported by the record. See In re Scrap Metal, 527 F.3d 517, 530 (6th Cir. 2008) (holding that to be admissible under Rule 702, the expert‘s opinion must find factual support in the record). For instance, Plaintiffs, each of whom lived in Marion for over ten years, do not present any symptoms of illness relating to any alleged manganese exposure (see Bush Dep. (Doc. 68-7) at 13-15; Tolle Dep. (Doc. 68-8) at 14).Rutchik‘s failure to “test [his] hypothesis in a timely and reliable manner or to validate [his] hypotheses by reference to generally accepted scientific principles as applied to the facts of the case renders [his] testimony ... inadmissible.” Pride v. BIC Corp., 218 F.3d 566, 577-78 (6th Cir. 2000) (finding expert‘s theory unsupported by reliable testing); see Brown v. Raymond Corp., 432 F.3d 640, 648 (6th Cir. 2005) (affirming exclusion of expert‘s testimony and finding that expert‘s “failure to empirically test his theories ... undermined the reliability of his testimony“).
Id. at 2884-85.
Based on the foregoing analysis, we hold that the district court did not abuse its discretion in excluding Dr. Rutchik. As the district court explained, Dr. Rutchik failed to support his hypothesis with any actual proof and thereby made his testimony unreliable. See Pride, 218 F.3d at 578 (affirming the exclusion of expert witnesses for failing to test their hypotheses).
We now turn to Plaintiffs’ remaining arguments.
C. Exclusion of OEPA Fact Witnesses
Plaintiffs challenge the district court‘s sanction imposed under
(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party‘s explanation for its failure to disclose the evidence.
Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015).
The district court determined that Plaintiffs’ last-minute disclosure of the OEPA witnesses was not harmless or substantially justified. We agree, as none of the abovementioned factors weigh in Plaintiffs’ favor.
First, Defendant could only have known about three of the witnesses because they had authored one of the notices of violation sent to Defendant in 2009 or 2010, or they had been carbon copied on one of those notices. Nothing in the record indicates that Defendant knew or could have known about the existence of the fourth witness. Further, there is no evidence that Defendant knew, or could have known, what these witnesses would say at trial. The surprise to Defendant is obvious.
Additionally, at this stage of litigation, allowing the witnesses to testify would delay and disrupt the trial. Not only would Defendant need time to depose the four witnesses, but Defendant would also have to be given the opportunity and time to find rebuttal evidence or testimony. Moreover, given that the content of the proposed testimony of these witnesses has never been disclosed or even hinted at by Plaintiffs, it is impossible to weigh the importance of this evidence. Finally, Plaintiffs did not offer any justification for their tardiness, but simply alleged that Defendant could “easily guess what the substance of [the witnesses‘] testimony would be.”
In short, we find no abuse of discretion.
D. Restriction of Plaintiffs’ Theory of Liability
Plaintiffs object to the district court‘s repudiation of their attempt to expand the case‘s theory of liability upon the eve of trial. As the district court noted, in their opposition to Defendant‘s motion to exclude Dr. Rutchik‘s testimony, Plaintiffs recast the harm alleged as coming from “particulate matter” or “PM,” as opposed to manganese, without moving to amend their pleadings. Plaintiffs argue that harm from PM can be inferred by looking at the totality of the complaint, or in the alternative, that they are entitled to relief based on a theory of harm from PM under
A plaintiff‘s complaint need not contain a formal legal theory of the harm alleged, Johnson v. City of Shelby, Miss., 574 U.S. 10, 135 S. Ct. 346, 346-47, 190 L. Ed. 2d 309 (2014), however, this does not give a plaintiff carte blanche. Complaints must provide defendants with sufficient notice of the type of harm alleged. See In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014).
Plaintiffs’ First Amended Complaint averred liability arising out of damage caused to Plaintiffs’ properties as the result of contamination from “hazardous” and “ultra-hazardous levels of manganese.” R. 6 at 124-36. Further, during discovery, Plaintiffs sought evidence and produced expert testimony based on a theory of harm solely from manganese. Plaintiffs filed a Second Amended Complaint, in which they made two oblique references to “particulates,” R. 34 at 617, 632; however, the Second Amended Complaint was later retracted, and Plaintiffs stipulated that the First Amended Complaint controls, R. 40 at 691.
Plaintiffs now argue that because the manganese emitted by Defendant comes in the form of PM, the harm alleged in the First Amended Complaint should be understood as encompassing PM emissions from the Facility as a whole. Here, harm from manganese is a much narrower claim of liability than harm from PM. The PM emitted by Defendant, according to an air-dispersion modeling analysis conducted by Defendant and submitted to the OEPA, contained at least nineteen air toxics, of which manganese was only one. Further, of the PM emitted, manganese constituted only 4.93% of its concentration, as measured by weight.
Thus, because the harm as pleaded, and used throughout litigation, is much narrower than the harm Plaintiffs wish this Court to infer, Plaintiffs’ pleadings could not have given Defendant sufficient notice of this type of harm. Consequently, the district court was correct to forbid Plaintiffs from arguing harm based on PM, absent a successful motion for leave to amend the pleadings.8
2. Entitlement to Relief under Rule 54(c)
Plaintiffs argue in the alternative that they are entitled to relief based on a theory of harm from PM under
Plaintiffs misunderstand the meaning of “relief” in
In arguing that they are entitled to relief based on a theory of harm from PM, Plaintiffs are not asking for a type of relief they failed to plead; rather they are asking for the same type of relief but based on a factual allegation they did not plead, and which Defendant has not had an opportunity to challenge. Therefore,
E. Denial of Plaintiffs’ Motion for Judicial Notice and Request for Judicial Estoppel
Lastly, Plaintiffs challenge the district court‘s denial without prejudice of their motion for judicial notice and judicial estoppel. Plaintiffs asked the district court to take judicial notice of 451 pages of U.S. EPA documents concerning PM and manganese, and of court documents from other litigation concerning Defendant‘s alleged emission of PM. Based upon these latter set of documents, Plaintiffs also asked the district court to judicially estop Defendant from making allegedly contradictory assertions in this litigation. The district court refused to take judicial notice of either set of documents because Plaintiffs failed to show how these documents were relevant to their claims concerning damage to property caused by Defendant‘s emission of manganese, as it had already ruled that Plaintiffs could not claim harm based on PM. However, the district court made this denial without prejudice, subject to a later showing of relevance, and invited Plaintiffs to “confer [with Defendant] regarding joint stipulations to be read to the jury, including any EPA findings or matters of public record relevant to this case.” R. 86 at 2888 (emphasis added). As the parties entered into a stipulated judgment prior to trial, the parties never produced jury stipulations.
To preserve an alleged error on a conditional ruling by the trial court, counsel must affirmatively raise the objection. United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). Because Plaintiffs failed to preserve their objection to this error in the stipulated judgment, they cannot raise it now. See Jolivette v. Husted, 694 F.3d 760, 770 (6th Cir. 2012) (“As a rule, we will not review issues if they are raised for the first time on appeal.“). And although an appellate court may take notice of a plain error by the lower court affecting a substantial right, despite the issue not properly being preserved,
Plaintiffs have “ma[d]e no argument” about plain error, and therefore have “not satisfied [their] burden to establish [their] entitlement to relief.” United States v. Threadgill, 572 Fed. Appx. 372, 389 (6th Cir. 2014). Therefore, we decline to consider the issue, and we affirm the district court‘s denial of Plaintiffs’ motion for judicial notice and request for judicial estoppel.
III. Conclusion
For the foregoing reasons, Plaintiffs are unable to make out a prima facie case.
SUHRHEINRICH
CIRCUIT JUDGE