Bradley v. Armstrong Rubber Co.

REVISED
United States Court of Appeals,

Fifth Circuit.

No. 96-60233.

Bessie G. BRADLEY, et al., Plaintiffs-Appellants-Cross-Appellees,

v.

The ARMSTRONG RUBBER COMPANY (Now Pirelli Armstrong Tire Company)
and Condere Corporation, d/b/a Fidelity Tire and Manufacturing
Company, Defendants-Appellees-Cross-Appellants.

Dec. 17, 1997.

Appeals from the United States District Court for the Southern
District of Mississippi.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Armstrong Rubber Company ("Armstrong"), now Pirelli

Armstrong Tire Company, operated a tire factory in Natchez,

Mississippi, from 1937 to 1987. The plaintiffs lived in the

neighborhood surrounding the factory and brought claims for

trespass, nuisance, strict liability, and negligence, alleging that

Armstrong blew carbon black onto their properties and introduced a
plume of petroleum naphtha into the soil and water under their

properties. The district court granted summary judgment for the

defendants on most of these claims but allowed a claim for trespass

to go to trial.

Plaintiffs appeal the summary judgment. We affirm the summary

judgment on the strict liability and negligence claims and on the

petroleum naphtha nuisance claims and reverse and remand on the air

and particulate trespass and nuisance claims and on the petroleum
naphtha trespass claim.

Armstrong cross-appeals, claiming that the district court

erred in refusing to grant summary judgment on the basis of res

judicata against plaintiff Laura Hardin. Armstrong also seeks a

new trial or judgment as a matter of law ("j.m.l.") on the ground

that the evidence presented was insufficient to sustain the jury

verdict. We reverse the denial of summary judgment against Laura

Hardin and the denial of the motion for new trial.

I.

A.

In the course of its operations, Armstrong routinely released

small amounts of a fine black powder known as "carbon black" into

the air. Several times during 1990 to 1992, the Mississippi

Department of Environmental Quality ("MDEQ") informed Armstrong

that its carbon black emissions were above regulatory limits and

that repairs were needed. According to the plaintiffs' expert real

estate appraiser, Douglass Upchurch, Armstrong's release of carbon

black has resulted in a layer of black powder on the plaintiffs'

residences, making them appear dingy, dirty, and in need of paint.

Armstrong claims that when its emissions of carbon black comply

with MDEQ regulations, the amount released is negligible.

Plaintiffs have produced no witnesses who saw carbon black

transmitted from the plant to the plaintiffs' property. The

defendants admit, however, that the plant emits a small amount of

carbon black, and MDEQ reports of substantial buildup of carbon

black on plant property strongly suggest that significant

additional amounts of carbon black were emitted in 1990 and 1992.
In addition, testimony of plant employees suggests that at other

times as well, emissions might have been higher than the

regulations allow.

The plaintiffs produced no expert testimony to prove that the

substance on their properties was carbon black. MDEQ examined the

properties and took samples of the black powder, but the record

does not establish whether tests were conducted or, if so, what

they revealed.1 There is evidence that the neighborhood was

industrial, containing, in addition to the tire plant, a pecan

processing plant, a metal processing yard with open fires, and

traffic created by large trucks.

The district court granted defendants' motion for summary

judgment on the air particulate claims, holding "that carbon black

is a chemical substance for which some expert testimony would be

required to prove that a given substance is carbon black ..." and

pointing out that the substance on the plaintiffs' property could

have come from another source.

B.

The plaintiffs also bring claims for nuisance and trespass

1
Memoranda from MDEQ employees state that two samples were
taken and delivered to a laboratory for testing but do not mention
the results of either of these samples. One of the samples was
taken by Ethyl Clark rather than by MDEQ employees. The collection
method used for the other sample is not revealed.

One earlier memorandum discusses the results of a sample
whose collection method and testing date is not revealed.
This memo states only that "[s]amples taken at Mrs. Clark's
house were not conclusion [sic ]." Several of the memoranda
mention that samples could not be taken because there were not
enough deposits, with homeowners mentioning that fallout had
been lighter than usual and that recent rains had reduced the
pollution.
resulting from the introduction of petroleum naphtha into the soil

and water beneath their properties. Before 1989, an underground

tank containing naphtha, a raw material similar to gasoline used in

Armstrong's manufacturing process, developed a leak. Armstrong

brought this problem to the attention of the MDEQ in 1989, after an

environmental survey by a potential buyer of the plant discovered

it, and MDEQ ordered Armstrong to remediate contamination in the

ground water affected by the leak.

Armstrong agreed to complete the remediation. The time for

cleanup is not known, in part because the planned remediation will

affect only the water, not the surrounding soil, and the

contaminated soil will contaminate the ground water. Expert

testimony by Russell Smith of the MDEQ suggests that it will take

at least ten years, perhaps twenty, to complete the remediation.

Even when the remediation is complete, the chemicals released by

the naphtha leak will not be completely removed.

The parties agree there is a slight chance that toxic elements

in the soil could "volatilize," moving either up to the surface or

down to the ground water and deeper soil. It is also possible that

contaminated ground water eventually will reach drinking water.

The contamination of the water and soil does not currently

affect the plaintiffs' use of their properties; the contamination

is below the surface of their land and cannot be seen, smelled, or

otherwise sensed. The plaintiffs offered no substantiation for

their claims that the contamination interferes with their use and

enjoyment of the property. The district court found baseless the

plaintiffs' claims that their health has been adversely affected,
and the plaintiffs do not contest this finding.

C.

In addition to their claims for interference with use and

enjoyment, the plaintiffs allege that the naphtha spill reduced the

market value of their homes. Plaintiffs' expert, Upchurch,

testified that after the naphtha spill, these homes had a negative

market value, whereas before the spill their values ranged from

$30,000 to $60,000.

On cross-examination, Upchurch was asked to explain his

methodology. He stated that the first phase of appraisal of

contaminated property is an estimation of the cost to clean up the

contamination, the cost of monitoring, and the availability of

financing, and that because these factors alone made the value of

the properties negative, he "just stopped there." Also on

cross-examination, Upchurch admitted that in his capacity as a

broker, he would not advise a particular plaintiff whose home had

originally been worth $60,000 to sell it for less than that,

especially if he had a wife and children to support.

The plaintiffs and their expert also emphasized the existence

of a requirement in Mississippi that homeowners disclose

contamination on their properties to potential buyers. Both of the

post-contamination buyers testified that, had the contamination

been disclosed as required by law, they would not have bought their

homes. Upchurch stated that potential buyers would be unable to

get a mortgage for the property, concluding from this fact that

there would be no market for the houses. He also suggested that,

in addition, the homes would suffer from a phenomenon known as
"market stigma."

In addition to cross-examining the plaintiffs' expert

appraiser, the defendants produced their own expert, Robert Haltom,

who testified that each of the houses had increased in value since

the naphtha leak. Haltom admitted on cross-examination, however,

that the defendants' attorneys had instructed him to disregard the

existence of contamination when drawing his conclusions, because

"that's what this case is about."

D.

This suit follows another proceeding related to the Armstrong

tire plant, Jackson v. The Armstrong Rubber Co., Civ. Ac. No. J90-

129(B) (S.D.Miss.) (unpublished), which closely resembled this case

and involved similarly situated plaintiffs and identical claims

based on the naphtha leak. In Jackson, the court dismissed all

claims by off-plume plaintiffs, allowing the claims of one on-plume

plaintiff, Laura Hardin, to go to the jury. On the eve of trial,

Hardin voluntarily dismissed her claim, and a final judgment

dismissing with prejudice was entered in 1993.

Freddie Hardin, who was not a party to the 1990 Jackson suit,

joined the instant suit, but died in 1994, and his wife, Laura

Hardin, sues on his behalf. Freddie and Laura owned their property

by a tenancy by the entirety. Freddie was fully aware of Laura's

participation in the Jackson suit and cooperated by discussing

details of the property with her expert appraiser (Upchurch, who

provided identical testimony regarding the property in this suit).

The defendants in the instant case unsuccessfully moved for summary

judgment against her on the ground of res judicata.
 The jury decided for the plaintiffs on the naphtha trespass

claim. It found that each of the houses had decreased in value by

75% because of the contamination.

II.

A.

We review a summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th

Cir.1992). Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." FED. R. CIV. P. 56(c). The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). After a proper motion

for summary judgment is made, the non-movant must set forth

specific facts showing that there is a genuine issue for trial.

See Hanks, 953 F.2d at 997.

We begin our determination by consulting the applicable

substantive law to determine what facts and issues are material,

then review the evidence relating to those issues, viewing the

facts and inferences in the light most favorable to the non-movant.

See King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). If the

non-movant sets forth specific facts in support of allegations

essential to his claim, a genuine issue is presented. See Brothers

v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994).
 B.

If the plaintiffs could prove that the substance on their

properties was carbon black, their case for causation would be

strong enough for submission to the jury. Without compelling

evidence from the defendants that the carbon black was more likely

to have come from another source, we would allow the jury to infer

causation from the closeness of the affected property to the

source.2 But because the plaintiffs have not produced such

evidence, their case is weak, and the district court concluded that

without expert testimony demonstrating that the substance was

carbon black, the case could not go to trial.

Whether the air particulates on the plaintiffs' property are

actually carbon black is, in itself, irrelevant. If the

particulates are some other substance, but the substance came from

the defendants and caused harm, the test for trespass is met, for

there is no requirement that the particulates be a regulated

substance such as carbon black.3 Therefore, the question is

whether the similarity of the substances may be considered by the

jury in lieu of expert testimony demonstrating that the substance

2
See Shutes v. Platte Chem. Co., 564 So.2d 1382, 1384
(Miss.1990), in which the plaintiffs brought suit for nuisance and
trespass against the only producer of the chemical linuron in the
neighborhood and produced evidence of linuron damage to their
properties. The court stated that "crumbs on the floor around the
dining room table may be reasonably supposed to have fallen from
the table." Id.
3
See RESTATEMENT (SECOND) OF TORTS § 258-59, at 277-81 (1965)
(noting that one is subject to liability for trespass when he
intentionally causes "a thing" to enter land in the possession of
another and that trespass may be committed on, beneath, or above
the surface); Alabama Great S.R.R. Co. v. Broach, 238 Miss. 618,
119 So.2d 923 (1960) (holding that introduction of dirt onto land
constitutes trespass).
on the homes is actually carbon black. Although the question is a

close one, we conclude that the jury must be allowed to decide this

material issue of fact.

In Cooper Tire & Rubber Co. v. Johnston, 234 Miss. 432, 106

So.2d 889 (1958), a rug cleaner sued a tire plant for nuisance and

trespass arising from its emissions of carbon black. The

defendants admitted causation; the opinion does not tell us what

the defendant argued or what evidence the plaintiffs produced to

obtain this admission. It says only that the carbon

black-producing plant was located "not over 125 feet away" and that

the defendants "necessarily concede that the trial court was

warranted, on conflicting facts in finding that their plant

constituted a nuisance for which they were liable in damages." Id.

106 So.2d at 891.

In the instant case, the plaintiffs' evidence presumably could

have included expert testimony to the effect that the black powder

on their residences was the same substance being produced by the

tire plant. Instead, we have concessions by the defendants'

employees to the fact that carbon black was produced and, if enough

was produced with the wind blowing the right way, it probably would

land on the plaintiffs' property.

Without an explanation why obtaining such evidence would be

unduly costly or technologically infeasible, the plaintiffs'

failure to produce stronger evidence that the substance was carbon

black permits an inference that the plaintiffs have information to

suggest it is not carbon black. On the other hand, plaintiffs'

burden of proof at summary judgment should not require expert
testimony when observation of the available evidence might lead a

reasonable person to conclude that the two substances, which look,

smell and feel similar, are the same.

Unlike some substances, carbon black can be seen and touched.

If scientific testing were not possible,4 a jury could examine

evidence about the physical properties of each material to decide

whether the particulates on the plaintiffs' property,

hypothetically, were in fact "crumbs" from the "table" of the

defendants' plant. If, hypothetically, the plaintiffs offered

testimony that the defendant was using yellow spray paint in the

vicinity of their houses, and that their houses were now yellow, we

would not require expert testimony in order for the plaintiffs to

survive summary judgment. Instead, we would allow the plaintiffs

to decide whether they thought the jury needed proof that the

substance on the houses was yellow paint.

In concluding, from plaintiffs' failure to give scientific

proof that the substance was carbon black, that they surely must

have evidence that the substance was not carbon black, the district

court improperly construed conflicting evidence in favor of the

non-moving party. It is possible that the plaintiffs did not have

the particulates tested because it was too expensive, or that

carbon black is difficult to identify when combined with other

substances that doubtless touched plaintiffs' property. Although

there is a strong possibility that carbon black either is not

present or is not a significant cause of the plaintiffs' dirty

4
The record does not contain evidence about how easy it is to
identify carbon black positively through scientific tests.
homes, that inference must be drawn by the jury after a trial, not

by the district court on summary judgment, where all evidence must

be interpreted favorably to the non-movant.

III.

A.

Plaintiffs argue that the summary judgment on their nuisance

claims was improper, but they fail to explain how the existence of

the naphtha plume under their properties interferes with their use

and enjoyment of the properties. The summary judgment on the

nuisance claims based on the naphtha leak is therefore affirmed.

Because the district court did not consider whether the carbon

black emissions interfered with the plaintiffs' use and enjoyment

of their properties, the summary judgment with respect to the

carbon black nuisance is reversed, and the issue is remanded for

trial.

B.

Plaintiffs argue that "the same facts that establish the

viability of [their] claims for trespass and nuisance demonstrate"

that their claims for negligence and strict liability were

sufficient to withstand summary judgment. They aver that whether

the defendants acted reasonably was a question for the jury. The

district court correctly noted the plaintiffs' failure to state a

case on these issues.

Mississippi law requires participation in an ultrahazardous

activity before strict liability can be imposed for harm from

industrial operations. We have defined the concept of
"ultrahazardous activity" fairly narrowly.5 Plaintiffs offer no

cases or evidence to support their position that defendants engaged

in an ultrahazardous activity. Finding no error, we affirm the

summary judgment on this claim.

On the negligence claims, the plaintiffs failed to prove a

duty owed to them, let alone a breach of such a duty. A suit for

negligence in Mississippi requires that a duty exist and be

breached.6 The summary judgment on this issue is therefore

affirmed.

IV.

A.

Defendants also argue that their motion for j.m.l. should have

been granted on the ground that Upchurch's testimony was inadequate

to provide the basis for a jury verdict. They argue that the

verdict was not supported by the evidence, because the expert

testimony did not meet minimum standards.

We review the district court's decision de novo, applying the

same standard used in deciding the motion for judgment

notwithstanding the verdict, the substantial evidence standard of

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en

banc). If there is substantial evidence to support the verdict,

5
See Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409, 414
(5th Cir.1987) (holding that storage of large quantities of
anhydrous ammonia was not an ultrahazardous activity under
Mississippi law where substance was poisonous only if inhaled in
large concentrations and was commonly used in wide variety of
agricultural, industrial, and commercial applications).
6
People's Bank & Trust Co. v. Cermack & Container Eng'g Corp.,
658 So.2d 1352, 1360 (Miss.1995) (citing May v. V.F.W. Post No.
2539, 577 So.2d 372 (Miss.1991)).
the challenge to it must be denied. Id. at 374. "Substantial

evidence" means evidence of such quality and weight that reasonable

and fair-minded persons in the exercise of impartial judgment might

reach different conclusions; a mere scintilla of evidence is

insufficient. Id.; see also Maxey v. Freightliner Corp., 665 F.2d

1367, 1371 (5th Cir.1982).

B.

Defendants criticize the basis for Upchurch's expert

testimony. On cross-examination, he stated that he considered the

cost of cleanup in arriving at the negative value he attributed to

the plaintiffs' properties after the naphtha leak. The defendants

argue, inter alia, that because the testimony was based on an

incorrect assumption that the property owners would be required to

pay cleanup costs, it did not rest on a reliable foundation and was

not relevant to the after-contamination value of the properties.

Although Upchurch mentioned several factors that might lower

the value of the property even if the owners were not required to

pay cleanup costs, the numbers he suggested were based on the

erroneous assumption. Without those numbers, the jury was left

with nothing but testimony to the effect that buyers would have

difficulty getting financing and that the properties would suffer

from "market stigma."

The phenomenon of "market stigma" is a reduction in market

price caused by the public's fear of contaminated property, which

lingers even after contamination has been remediated. Whether

market stigma is a recoverable element of damages has been the

subject of considerable debate.
 In a strongly analogous case, the Third Circuit has held that,

where a physical injury to land such as chemical contamination has

occurred, damages for diminution in a property's value caused by

market stigma may be recovered if the plaintiff can demonstrate

that repairing the damage will not restore the property to its

original market value. See In re Paoli R.R. Yard P.C.B. Litig., 35

F.3d 717, 796-98 (3d Cir.1994). That case, like this one, involved

chemical contamination of homeowners' properties, and remediation

that was expected to reduce the contamination to levels not

considered hazardous, but that would not eliminate the

contamination completely. Id. at 795. The district court

identified a tension between EPA standards—which suggested reducing

the risk of cancer to ten times below the risk expected after

remediation (from 1 in 100,000 to 1 in 1,000,000)—and FDA

standards, which allowed similar levels of the chemical in food

packaging, poultry, and animal feed.

The court held that this tension created a fact issue for the

jury to resolve—whether there was a continuing health risk that

could constitute "permanent injury," bringing the claim within the

scope of Pennsylvania's traditional permanent injury requirement

for diminution in value damages. Id. at 796. In the alternative,

the court stated that the stigma itself could be a permanent

injury, at least if some risk of further injury remained, where the

stigma stemmed from an initial physical injury. Id. at 798.

Unlike most courts considering the permanent/temporary injury

distinction, the court held that the diminution in value itself was

a permanent injury, rendering it unnecessary for plaintiffs to show
any permanent damage in the form of continuing health risks.

Several other courts, including the Mississippi Supreme Court,

have suggested that stigma damages might be allowed as part of the

diminution of value that may be recovered when a trespass or

nuisance of a permanent nature physically injures the property.

For instance, in Leaf River Forest Prods., Inc., 662 So.2d 648, 664

(Miss.1995), the court held that "mere stigma, supported by tests

showing dioxin contamination no closer than eighty river miles

north of the alleged damage, is not sufficient evidence of

compensable injury."

The court quoted extensively from Berry v. Armstrong, 989 F.2d

822 (5th Cir.1993), which involved alleged dumping of toxic wastes

by the defendant in this case, Armstrong. Although Armstrong

dumped waste material from its plant at various sites in the

Natchez area, the plaintiffs could not demonstrate that this

dumping had resulted in the presence of toxic chemicals on their

property. Because the plaintiffs did not allege that the dumping

occurred directly on their property, they could not show physical

damage to it unless the waste disposal had resulted in hazardous

chemicals being introduced to their land and groundwater.

Upchurch, providing his expertise to the plaintiffs in that case as

well, testified that the public perception of the presence of

hazardous chemicals reduced the market value of the properties.

In Berry, we did not reject the plaintiffs' argument that a

decrease in market value from stigma was compensable, but we stated

that no Mississippi case "allows recovery for a decrease in

property value caused by a public perception without accompanying
physical harm to the property." Id. at 829.7 Several courts have

considered market stigma a relevant factor in determining the value

of property for eminent domain and bankruptcy purposes. In these

cases, the issue is reducing the damages for a taking or reducing

the value of property as collateral, but the same considerations

apply, particularly in the eminent domain context. All of these

cases have held that market stigma may reduce the value of

property.8

Because none of the Fifth Circuit or Mississippi cases

involved fact patterns actually meeting this requirement, we are

not bound to allow recovery for market stigma. We are convinced,

however, that Mississippi would allow recovery for diminution of

value from market stigma under these circumstances.

Mississippi, like the states that have decided this issue,

allows damages for diminution in value where permanent injury to

property has occurred.9 Mississippi's policy of granting a remedy

to property owners who have suffered an economic loss from a

neighbor's trespass or nuisance would be thwarted by a rule holding

that the plaintiffs' losses cannot be recovered. The requirements

7
See also Adams v. Star Enter., 51 F.3d 417, 423 (4th
Cir.1995) (applying Virginia law); Adkins v. Thomas Solvent Co.,
440 Mich. 293, 487 N.W.2d 715, 727 (1992); Santa Fe Partnership v.
ARCO Prods. Co., 46 Cal.App.4th 967, 984, 54 Cal.Rptr.2d 214 (Cal.
Ct.App.—2d Dist.1996) (no diminution in value where damages not
permanent; statute of limitations expired for claim of permanent
injury); FDIC v. Jackson-Shaw Partners No. 46 Ltd., 850 F.Supp.
839, 844 (N.D.Cal.1994) (same).
8
See, e.g., Tennessee v. Brandon, 898 S.W.2d 224, 227
(Tenn.Ct.App.1994); Florida Dept. of Transp. v. Finkelstein, 629
So.2d 932, 934 (Fla. Ct.App.—4th Dist.1993).
9
See Phillips v. Davis Timber Co., 468 So.2d 72, 79 (1985);
Bynum v. Mandrel Indus., 241 So.2d 629, 634 (Miss.1970).
of permanent and physical injury to property ensure that this

remedy does not open the floodgates of litigation by every property

owner who believes that a neighbor's use will injure his property.

The requirements of permanent and physical injury are

satisfied in this case. The petroleum naphtha physically entered

the plaintiffs' properties and created a health hazard. Although

the contamination is being remediated, the duration of the

remediation is unknown, and the remediation will not completely

remove the contamination. The MDEQ believes that remediation

eventually will reduce the contamination to "safe" levels, but it

has stated that it will not certify the properties' safety to

potential purchasers, even after the remediation is completed.

C.

Nevertheless, we agree that plaintiffs failed to produce

evidence sufficient to sustain the verdict. Convincing evidence of

market stigma affecting the sale price and availability of

financing for the properties may support damages for diminution in

the value of permanently injured property. In this case, however,

the plaintiffs' expert provided no estimate of the amount by which

the value of the homes was reduced. His estimate of "after" value

did not differentiate between the diminution resulting from the

non-existent cost of cleanup, and the diminution caused by market

stigma. Therefore, the jury's selection of a 75% reduction in

value rested on no evidentiary foundation. Diminution of value

damages, like all damages, must be proven with reasonable certainty
in Mississippi.10

Despite this, j.m.l. is inappropriate where, as here, some

damage has been proven, and the plaintiffs' failure to offer

sufficiently concrete testimony regarding damages was not entirely

their fault. Although the defendants' primary criticism of

Upchurch's testimony goes to its admissibility, they did not object

to the testimony when it was given. Instead, they waited until

their motion for j.m.l. to raise the issue. Had the defendants

objected to the testimony's admissibility at trial, plaintiffs

could have offered expert testimony based on the valid factors of

market stigma, without the erroneous assumption regarding cost of

cleanup. Such testimony could have supported a jury verdict.

As plaintiffs point out, the defendants never objected at

trial to the qualifications of the witness or the admissibility of

his testimony. Defendants argue that this is beside the point,

because they do not object to the admissibility of the testimony,

but to its qualification as the basis for a jury verdict.

Defendants start out by characterizing their argument as one based

on sufficiency of the evidence: "The movant does not have to

establish that there is no evidence supporting the verdict, "but

whether there is evidence upon which the jury properly could find

a verdict for that party' " (citing 9A CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE § 2524, at 249 (2d ed.1995)).

Defendants also indirectly rely upon FED. R. EVID. 703 by

10
See, e.g., City of Jackson v. Keane, 502 So.2d 1185, 1187
(Miss.1987); Chevron Oil Co. v. Snellgrove, 253 Miss. 356, 175
So.2d 471, 475 (1965); Mississippi State Highway Comm'n v. Engell,
251 Miss. 855, 171 So.2d 860, 862-63 (1965).
citing Berry, 989 F.2d at 827, which used rule 703 as the basis for

excluding expert testimony in evaluating the evidence on motion for

summary judgment. Defendants try to avoid using the term

"inadmissible," but their objections to Upchurch's testimony (aside

from the district court's irrelevant characterization of it as

"ridiculous" and "unbelievable") are admissibility objections: The

testimony "should be rejected since it does not rest on a reliable

foundation and it is not relevant to the task at hand. It is based

on speculation and conjecture." They then reprint excerpts of

cross-examination that demonstrate that Upchurch based his opinion

substantially on an incorrect assumption that the homeowners would

be responsible for cleanup costs and monitoring, and otherwise

neglected to follow the standard procedures in his profession.

Had the defendants objected to the admissibility of this

evidence, their case would be strong. The record shows that

defendants have admitted responsibility for all cleanup costs, that

monitoring has been conducted by the MDEQ and Armstrong, not by

homeowners, and that the district court considered costs of cleanup

irrelevant to the question of damages. Thus, the probative value

of Upchurch's "after" value was quite limited:

Certainly nothing in Rule 703 requires a court to admit an
opinion based on facts that are indisputably wrong. Even if
rule 703 will not require the exclusion of such an unfounded
opinion, general principles of relevance will. In other
words, an opinion based totally on incorrect facts will not
speak to the case at hand and hence will be irrelevant.

Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114 (5th

Cir.1991) (en banc) (overruled on other grounds, Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 n. 5, 113 S.Ct. 2786,
2793 n. 5, 125 L.Ed.2d 469 (1993)).11 The defendants failed to make

such an objection, however, and the testimony was admitted.

Because the defendants' claim that Upchurch's testimony did

not meet rule 703's requirements is an admissibility objection, it

should have been raised at trial. Defendants' counsel were present

at the in limine hearing at which plaintiffs' counsel told the

court that their expert would have to consider the cost of cleanup

in performing his appraisal, so they had notice and time to prepare

their objection.

Even if the defendants were not aware of the bases for the

opinion before Upchurch's testified, they could have asked to have

the testimony stricken from the record once its bases were revealed

at trial. Instead, the defendants skillfully cross-examined

Upchurch and hoped the jury would respond negatively to his

"ridiculous" testimony. Defendants may not quietly let the

inadmissible testimony enter the record, perhaps hoping it will

work in their favor, and then obtain a j.m.l. on the basis of an

untimely admissibility motion cloaked in the language of

"sufficiency."

Defendants cite no case involving expert testimony failing

rule 703's requirements in which a court granted j.m.l. without

excluding the expert testimony (and hence implicitly finding it

inadmissible). Rule 703's requirements are usually addressed at

the summary judgment stage of a proceeding or on a motion to

11
The same objection could and should have been made to the
defendants' expert appraiser, who presented testimony regarding
"before" and "after" values of plaintiffs' properties without
considering the effect of contamination.
exclude evidence at trial.12

Once evidence—even if not admissible—is presented at trial,

it must be considered for purposes of a j.m.l. if the affected

party did not object properly. The only panel in this circuit to

review such a motion after the inclusion of inadmissible evidence

held that the inadmissible evidence must be considered, stating

that "[i]t was incumbent on the trial court to consider all of the

evidence before the jury, as it was in fact presented to the

jury...." Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215,

218 (5th Cir.1983). There, the proponents of the judgment objected

to the evidence at trial, but the evidence was later revealed to be

inadmissible on a different ground not mentioned in the party's

original objection.

Here, defendants never objected to introduction of Upchurch's

testimony on any ground. Therefore, the evidence must be

considered in weighing the evidence on motion for j.m.l.

Given that the jury probably based its verdict on testimony

that was not only inadmissible, but also erroneous, it was error to

let the verdict stand. The appropriate remedy under these

circumstances is a new trial, however, and not j.m.l. The court

has discretion to order a new trial rather than judgment as a

matter of law when the defect in the nonmoving party’s proof might

12
See, e.g., Berry, 989 F.2d at 824; Orthopedic & Sports
Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224-25 (5th
Cir.1991) (rule 703 applied to evidence at summary judgment);
Ambrosini v. Labarraque, 101 F.3d 129, 131 (D.C.Cir.1996) (same);
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1329 (5th Cir.1996)
(limiting testimony of witness at trial to testimony with reliable
foundation).
be remedied at a second trial.13

Defendants' failure to make a timely objection deprived

plaintiffs of effective notice that their expert's testimony did

not meet rule 703's requirements. Had the defendants initially

objected to the testimony of Upchurch on the basis of his erroneous

assumptions, the plaintiffs could have asked him or another expert

to focus solely on the market stigma aspect of damages. Such

testimony would have been admissible and possibly sufficient to

sustain a jury verdict. Accordingly, we remand for proceedings in

which the plaintiffs may attempt to prove market stigma damages.

V.

A.

Prior to trial, the defendants filed a motion for partial

summary judgment seeking the dismissal of the Hardin claims based

on res judicata. The district court carried the motion with the

case and denied it after the close of plaintiffs' case in chief,

holding that because Freddie and Laura Hardin owned their home as

tenants by the entirety, Laura had no authority to bring the

Jackson suit without joining Freddie, so the judgment of dismissal

in that suit was void.

The cases cited by the district court are not relevant. One,

Ayers v. Petro, 417 So.2d 912 (Miss.1982), dealt with a woman's

attempt to buy, at a foreclosure sale, the home she had previously

owned, as joint tenant with right of survivorship, with her former

13
See Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801,
809, 69 S.Ct. 1326, 1330, 93 L.Ed. 1704 (1949); CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 2538 AT 357-
59 (2d ed. 1995)
husband before their divorce. The woman, who remained a joint

cotenant with her husband in the property, was not permitted to

purchase the property for her individual benefit. Id. at 916. The

second, In re Estate of Childress, 588 So.2d 192 (Miss.1991),

involved the question whether the signature of both parties is

required to sever a tenancy by the entirety.

The defendants urge that we should look, instead, to the many

cases holding that a person need not have title to real property in

order to sue for trespass. See, e.g., Ingram-Day Lumber Co. v.

Cuevas, 104 Miss. 32, 61 So. 4, 5 (1913); 75 AM.JUR.2D Trespass §

38. As long as the plaintiff was in actual possession of the land,

she need not have had complete title to the property in order to

maintain a valid suit.

Furthermore, as defendants also point out, the district

court's fear that a rule permitting one party to bring suit would

allow double recovery is unfounded. As Ayers demonstrates, any

recovery that one cotenant by the entirety obtains redounds to the

benefit of the other. This means the cotenant is in privity with

the suitor, and would be barred from bringing a subsequent suit.

David v. Nemerofsky, 41 A.2d 838 (D.C.1945).

Although no Mississippi case has considered this proposition,

we find it highly unlikely that Mississippi would deny the privity

of tenants by the entirety, thus allowing two suits for an injury

to the same property. Such a result would be inconsistent with

principles followed throughout the country, and would result in

grave injustice should a tenant by the entirety be abandoned by his

cotenant.
 In such a case, the statute of limitations might expire before

the cotenant could be joined in the suit or the tenancy by the

entirety abolished. Furthermore, Mississippi law establishes that

complete ownership is not required in a trespass case.

Accordingly, the Jackson dismissal was not void merely because

Freddie Hardin did not participate in the suit.

B.

Because the Jackson result stands, we must decide which

claims, if any, have already been decided. Federal law applies to

the res judicata effect of a prior federal court judgment, and that

law requires (1) identical parties, (2) jurisdiction for the prior

judgment, (3) a final judgment on the merits, and (4) the same

cause of action. Russell v. SunAmerica Sec., Inc., 962 F.2d 1169

(5th Cir.1992); Stovall v. Price Waterhouse, 652 F.2d 537 (5th

Cir. Unit A Aug.1981).

The only questionable requirements here are identical parties

and same cause of action. Parties in privity count as identical

parties for federal res judicata purposes.14 Furthermore, the "same

cause of action" test is easily met on the naphtha claims, because

those claims were identical in the two suits. The same expert

appraiser was used, the same before and after property values were

alleged, and the same relief was sought. Thus, we reverse the

denial of summary judgment and render partial summary judgment for

the defendants on the Hardin naphtha claims.

14
See Russell, 962 F.2d at 1173; United States v. Shanbaum,
10 F.3d 305, 310 (5th Cir.1994); Gulf Island-IV, Inc. v. Blue
Streak-Gulf, 24 F.3d 743, 746 (5th Cir.1994), cert. denied, 513
U.S. 1155, 115 S.Ct. 1112, 130 L.Ed.2d 1076 (1995).
 To the extent that Freddie Hardin alleged trespass or nuisance

claims based on the carbon black emissions, however, those claims

should survive summary judgment, as they were not brought in the

original action and did not arise out of the same operative facts.

With respect to these claims, we affirm the denial of summary

judgment.

VI.

In accordance with the foregoing, the summary judgment for

defendants on the trespass and nuisance claims is REVERSED. The

denial of the motion for new trial is REVERSED. We REMAND for a

trial on the air and particulate trespass and nuisance claims and

for a new trial on the naphtha trespass claim. The summary

judgment on the strict liability and negligence claims and on the

petroleum naphtha trespass claim is AFFIRMED. The denial of

summary judgment on the Hardin claims is REVERSED in part, and

summary judgment is RENDERED on the Hardin naphtha trespass claims.