H.E. Stevenson v. E.I. Dupont De Nemours & Co.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 3, 2003

Charles R. Fulbruge III
For the Fifth Circuit Clerk

No. 02-40569

H E STEVENSON, ET AL,
Plaintiffs,

H E STEVENSON, DIANNA STEVENSON, AND SHARON HARPER,

Plaintiffs-Appellees,

VERSUS

E I DUPONT DE NEMOURS AND COMPANY,

Defendant-Appellant.

Appeal from the United States District Court
For the Southern District of Texas, Victoria

Before DeMOSS and STEWART, Circuit Judges, and FALLON, District

Judge.1

DeMOSS, Circuit Judge:

Before the Court is the appeal of Defendant-Appellant E. I.

1
District Judge of the Eastern District of Louisiana,
sitting by designation.

1
DuPont De Nemours & Co. ("DuPont") from a jury verdict finding the

defendants liable for trespass on the Plaintiffs-Appellees'

property. The Plaintiffs-Appellees in this case are H. E.

Stevenson, Dianna Stevenson, and Sharon Harper (referred to

collectively as "Plaintiffs"). Carried with DuPont’s appeal is the

Plaintiffs' motion for recovery of damages and costs under F.R.A.P.

38. The Plaintiffs brought suit against DuPont alleging that its

Victoria, Texas, plant emits heavy metal particulates, which

contaminated the Plaintiffs’ properties located nearby and affected

their health as well as the health of their animals. Their

theories of recovery included negligence, nuisance, and trespass.

Following a six-day jury trial, the jury found for the Plaintiffs

only on the trespass theory and awarded the Stevensons $168,000 and

Harper $96,000 in damages for the diminished value of their

property.

DuPont appeals challenging the sufficiency of the evidence of

the jury verdict. It contends first that, as a matter of law, the

Plaintiffs cannot recover for trespass based on contamination by

airborne particulates. Second, appellant asserts that the

Plaintiffs’ evidence of causation was insufficient to show that

DuPont’s factory emissions actually contaminated the Plaintiffs’

properties. Finally, it alleges that the Plaintiffs presented

insufficient evidence regarding damages for the diminution of

property values.

Plaintiffs, in response, have moved for damages and costs as

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a result of a frivolous appeal. Specifically, the Plaintiffs

contend that DuPont’s challenges regarding the causation evidence

are actually Daubert challenges regarding the admissibility of the

evidence, and, because the defendant waived its Daubert challenge

during a hearing on the matter, this Court cannot now review these

findings. Second, Plaintiffs argue that DuPont’s point of error on

evidence of a temporary trespass as opposed to permanent trespass

was waived when DuPont failed to request that the Court submit such

an issue to the jury.

For the reasons set forth below, we AFFIRM the district

court's denial of DuPont's motion for judgment as a matter of law.

We REVERSE the jury's award for damages, and REMAND for a new trial

on damages.

BACKGROUND & PROCEDURAL HISTORY

H. E. and Dianna Stevenson purchased 28 acres of land in

Victoria, Texas in 1970 or 1971. Mr. Stevenson built a house on

the property, and the family moved into that house in 1976. Mr.

Stevenson used the property primarily to raise race horses. Sharon

Harper purchased 16 acres of land approximately a block to block-

and-a-half from the Stevensons’ property in 1982. She resides in

a house on the property, along with her daughter, who lives in a

separate house on the property. During her time on the property,

she raised cows, horses, goats, chickens, and various other

animals.

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 DuPont opened a petrochemical plant in Victoria, Texas, in

1951. The plant is approximately one and one-half miles from the

Plaintiffs’ properties, which are the closest lands to the plant.

The plant produces "intermediate products" for shipping to offsite

customers. Throughout its operation, the plant has emitted heavy

metals as a result of burning hazardous waste. The emissions from

the factory contain barium, cerium, chromium, copper, lead,

manganese, and zinc.

In January 2001, the Plaintiffs filed suit against DuPont for

contamination of their person, property, and livestock. Their

theories of recovery were negligence, nuisance, and trespass.

During the trial,2 James Miller, DuPont’s environmental consultant,

testified as the employee most knowledgeable about the air

emissions from the stacks. He admitted that all air dispersion

reports, including DuPont’s, showed that the Plaintiffs’ properties

were within the maximum level of impact for emissions from DuPont’s

factory. This dispersion modeling showed that the emissions were

most heavily concentrated in the air over the Plaintiffs’

properties.

Michael Stringer was offered as the Plaintiff’s expert on soil

sampling. He collected samples from the Stevensons’ property,

2
Various testimony was heard during the trial regarding the
health effects of the contamination on the Plaintiffs and their
animals. However, the jury found in favor of the defendant on
these issues, and this part of the verdict is not before this
Court on appeal. Accordingly, discussion of this testimony is
omitted.

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including a sample of dirt from their roof, and he also collected

soil samples from DuPont’s plant and from a background source about

25 to 30 miles from the plant. He testified that concentrations of

heavy metallic particles were higher on the Stevensons’ property

than on the DuPont’s property and much higher than on the

background property. Further, the types of metals found on the

ground matched those emitted by DuPont. Dr. Edwin Smith also

testified for the Plaintiffs regarding soil and roof samples taken

from the Stevensons’ property. He opined that the metallic

concentrations on the roof were higher than the concentrations on

the ground, indicating that the cause of the contamination was

airborne in nature. No soil samples were taken from Mrs. Harper’s

property, and Stringer testified that he did not analyze the

samples collected on her roof because it was metallic and would

contain metallic particles anyway.

Mr. Stevenson testified that he had continuous upkeep problems

at his house because the paint would keep peeling off, and his

window screens continually corroded. Sharon Harper testified that

she had continuous rust problems on her roof and pipe fence, with

the worst corrosion being on the side facing the DuPont factory.

To prove damages, the Plaintiffs offered the testimony of John

Fox, a real estate appraiser. Fox based his opinion solely on a

letter provided by the executive director of the Port of Victoria

Industrial Park regarding the range of prices available for land in

the same area as the Plaintiffs. The letter stated that property

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in the area sold for approximately $10,000 to $15,000 per acre.

Fox then "placed that same range on the Stevenson property, which

would be 10 to 15,000 per acre." He then applied the same range to

value Mrs. Harper’s property. The defendant’s expert conducted an

appraisal of the properties in this case and concluded that the

Fox’s appraisal should be discounted approximately 40 percent.

At the conclusion of the trial, the jury returned a partial

verdict in the Plaintiffs’ favor. The jury found that DuPont was

not negligent, and that its actions did not constitute a nuisance.

The jury did find that a trespass had occurred on the Plaintiffs'

lands, but did not find that the trespass was willful or wanton.

The jury further denied recovery for the Plaintiffs’ physical pain

and mental anguish as well as for injury to their animals, but the

jury did award the Stevensons $168,000 and Harper $96,000 for "the

difference in the market value of the property . . . immediately

before and after the damage . . . proximately caused by DuPont’s

operation of the Victoria Plant."

The District Court entered judgment in favor of the Stevensons

and Harper in these amounts. DuPont promptly moved for a new trial

and judgment as a matter of law, and the District Court denied the

motions. DuPont then timely appealed to this Court to review the

sufficiency of the evidence.

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 DISCUSSION

I. Whether the district court erred in denying DuPont’s motion
for judgment as a matter of law.

This Circuit reviews de novo the district court's ruling on

a motion for judgment as a matter of law. See Cozzo v. Tangipahoa

Parish Council-President Government, 279 F.3d 273, 280 (5th Cir.

2002). However, when an action is tried by a jury, such a motion is

a challenge to the legal sufficiency of the evidence supporting the

jury's verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th

Cir. 2000). Accordingly, the Court should consider the evidence

"drawing all reasonable inferences and resolving all credibility

determinations in the light most favorable to the non-moving

party." Id. Furthermore, the Court’s "standard of review with

respect to a jury verdict is especially deferential." Id. Thus,

reversal is proper "only if no reasonable jury could have arrived

at the verdict." Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.

1998).

DuPont argues that a trespass traditionally requires a direct

and physical invasion by tangible matter onto another person’s

property, while a cause of action for nuisance requires a showing

of indirect invasion and intangible intrusion. DuPont relies on

Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215 (Mich. Ct. App.

1999), to support its claims that the intrusion of airborne

particles onto Plaintiff’s land does not constitute a trespass.

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Adams, a Michigan case, declined to follow recent Michigan case law

expanding the tort of trespass and held that the invasion of dust

particles was not sufficient evidence of trespass because these

particles do not present a "significant physical intrusion." Id.

at 223. Defendant contends that this traditional view of trespass

law would preclude Plaintiffs’ recovery.

The current case law that Adams rejected in reaching its

decision does hold that a trespass occurs when particulate matter

is present on another’s property; however, those cases also modify

"traditional" trespass law by requiring "substantial damage to the

res." J. H. Borland v. Sanders Lead Co., 369 So. 2d 523, 530 (Ala.

1979). See also Bradley v. American Smelting & Refining Co., 709

P.2d 782, 791 (Wash. 1985) (adopting the holding of Borland

requiring substantial damage for trespass caused by airborne

particulates). DuPont relies on Borland, an Alabama case, and

Bradley, a Washington state case, to suggest the modern view of

trespass law would support the cases of the Stevensons and Harper,

but would require a showing of substantial damage.

DuPont admits that Texas courts have not decided this

particular issue. However, it contends that under either theory,

the Plaintiffs cannot recover in this case. Under the old theory,

the injury must be direct and tangible, which precludes recovery

because the airborne particles are neither direct nor tangible.

Further, under the new theory, the Plaintiffs have failed to

8
establish the substantial damage requirement. Significantly,

however, the defendant cannot point to any Texas case specifically

adopting these requirements. DuPont argues that Texas courts have

adopted the substantial damage requirement, but the cases it relies

on in support of that contention involved situations in which the

state had set the minimum levels of damage necessary to maintain a

cause of action in trespass. See, e.g., Taco Cabana, Inc. v. Exxon

Corp., 5 S.W.3d 773, 780 (Tex. Ct. App.-San Antonio 1999, writ

denied) (holding that because the Plaintiff did not prove

contamination above state action levels, recovery for trespass was

not possible); Z.A.O., Inc. v. Yarbrough Drive Center Joint

Venture, 50 S.W.3d 531, 543-44 (Tex. Ct. App.-El Paso 2001, no

writ) (same). In this case, there is no assertion that Texas law

sets the required levels of contamination necessary for recovery by

the Plaintiffs. Thus, the Plaintiffs were not required to show

substantial damage to their property.

DuPont’s arguments also fail because this Court is required to

apply the law of Texas as it currently stands. The Texas Supreme

Court set forth the following definition of trespass with its

decision in Railroad Comm’n of Texas v. Manziel, 361 S.W.2d 560

(Tex. 1962): "To constitute trespass there must be some physical

entry upon the land by some 'thing.'" Id. at 567. Research shows

no Texas cases adopting a "direct and tangible" requirement to

prove trespass. Because the only showing necessary is entry over

9
land by some "thing," Texas law would permit recovery for airborne

particulates.

II. Whether sufficient evidence was presented to the jury to prove
that the emissions from DuPont deposited heavy metal particulates
on the Plaintiffs' properties.

DuPont first attacks the methodology used by Plaintiffs’ air

modeling expert, Johnny Sanders. It contends that his methods were

not sufficiently reliable to determine that the concentrations of

metals would move from DuPont’s property to the Plaintiffs’

properties. DuPont cites several examples of his testimony to show

that it is unreliable. First, it points out that Sanders did not

do any depositional modeling, which would have confirmed whether

the particles actually landed on the Plaintiffs’ properties.

Second, DuPont asserts that Sanders used improper data in reaching

his calculations and that he disregarded the actual data he was

given by DuPont. Third, Sanders’ testimony had mathematical

errors, which skewed his analysis.

DuPont also contends that Plaintiffs’ experts Stringer and

Smith were not reliable when they testified regarding the presence

of heavy metals on the Plaintiffs’ properties. First, DuPont

points out that Dr. Smith’s analysis of the soil sample was

improper because it was delivered to him by the Stevensons, who did

not create a chain of custody document for the sample. Second,

DuPont argues that Dr. Smith failed to inquire or determine whether

the metals could have come from any alternative sources. Finally,

10
DuPont points out that Stringer only tested two soil samples from

the Stevensons’ property.

Plaintiffs contend first that DuPont lost its right to

challenge the reliability of its expert testimony when it waived

its Daubert challenges during a hearing on the admissibility of

expert testimony. Plaintiffs characterize defendant’s arguments as

challenges to the admissibility of the evidence disguised as

challenges to the sufficiency of the evidence. Its arguments,

however, on this point are not persuasive. Although DuPont lost

the right to challenge the admissibility of the evidence, it did

not lose the right to challenge the sufficiency of the evidence.

In In re Joint Eastern & Southern District Asbestos

Litigation, 52 F.3d 1124 (2d Cir. 1995), the Second Circuit

thoroughly examined the interaction between the standards

enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993), and the sufficiency of the evidence. Plaintiffs in the

asbestos litigation sought damages for colon cancer allegedly

caused by asbestos products manufactured by the defendants. The

jury found in favor of the Plaintiff, and the defendant promptly

moved for judgment as a matter of law. The district court granted

the motion and set aside the jury verdict finding that the

Plaintiff’s epidemiological evidence was insufficient to support a

causal connection between asbestos and colon cancer.

The Second Circuit reversed finding that the district court

11
had improperly taken the case away from the jury and overstepped

its role as contemplated by Daubert. Id. at 1126. The court noted

that a sufficiency inquiry asks whether the collective weight of a

litigant’s evidence is adequate to present a jury question. Id. at

1132. Further, the court found that Daubert did not change the

traditional role of a sufficiency inquiry, but only expanded the

trial court’s role regarding the admissibility of expert evidence.

Id. The court quoted the following passage from Daubert to

illustrate the proper method of attacking questionable-but-

admissible expert evidence: "‘[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof'" are the traditional and appropriate means of

attacking shaky but admissible evidence. Id. at 1132 (quoting

Daubert, 509 U.S. at 599).

Following these guidelines, this Court may review the record

to determine the sufficiency of the evidence; the defendant’s

waiver of any challenges to the admissibility of the expert

testimony does not preclude such a sufficiency review by this

Court. Defendant properly preserved its rights to challenge the

sufficiency of the evidence when it moved for a judgment as a

matter of law in the trial court. However, as we noted above, this

Court must draw all inferences from the evidence in favor of the

Plaintiffs. Brown, 219 F.3d at 456.

As noted above, the testimony of all air modeling experts in

12
this case, including DuPont’s expert, James Miller, showed that the

Plaintiffs’ properties were in the area showing the heaviest

concentration of DuPont’s emissions. Thus, the defendant’s

arguments regarding discrepancies or improper modeling techniques

in Sanders’ opinions and testimony is not persuasive. His

testimony is supported by that of the other experts in the case.

DuPont correctly points out that the air modeling testimony

only showed that the airborne particulates were in the air over

Plaintiffs' properties, not that it actually landed on the ground.

However, the testimony of Dr. Smith and Mr. Stringer established

that point. Their testimony showed higher-than-normal levels of

metallic particulates on the Plaintiffs' property; the metals found

on Plaintiffs' land also matched the metals known to be emitted by

DuPont’s factory. Further, Dr. Smith opined that because the

concentrations on the Stevensons’ roof were higher than the

concentrations on the ground, the contamination was airborne in

origin. A jury could reasonably infer that the particles on the

ground were from DuPont’s factory because the Stevensons’ property

was in the area most heavily covered by the airborne particulates.

DuPont argues that Dr. Smith’s testimony was improper because

he analyzed only a single sample, and no chain of custody was

created. DuPont never objected to the admission of this testimony,

and the record shows that DuPont's counsel adequately cross-

examined Dr. Smith on his techniques. DuPont’s challenges go to

the weight of the evidence, and this Court should defer to the

13
jury’s findings that this testimony indicated the particular

result.

DuPont also asserts that the Plaintiffs failed to present any

evidence showing the background levels of heavy metal particulates

in the air before the wind reached the DuPont factory. Further, it

contends that the Plaintiffs’ experts started with the conclusion

that the contamination came from the DuPont factory and crafted

their testimony to justify that. This argument fails again,

however, because DuPont’s own evidence showed that its emissions

were most heavily concentrated over the Plaintiffs’ properties.

The jurors were not required to rule out all other potential

causes, only to find that the defendant’s emissions more probably

than not landed on the Plaintiffs’ lands. Thus, the jury’s

findings have a basis in fact.

DuPont’s final point concerns the findings of trespass with

respect to Harper’s property. It is true that no soil or roof

samples were tested from her land. However, Harper herself

testified that she had to replace a metal roof because of

corrosion, and she testified that her metal fence was heavily

corroded. In both cases, the evidence showed that the rust and

corrosion was heaviest on the side of the land facing the DuPont

property. Harper’s testimony was consistent with the Stevensons’

testimony regarding the effects of corrosion. Drawing the

inferences in favor of the Plaintiffs, and noting that they were

neighbors, it was reasonable for the jury to conclude that if

14
DuPont’s contamination affected the Stevensons, it also affected

Harper. Thus, there is an evidentiary basis for finding a trespass

on the Harper property.

In conclusion, the evidence presented at trial supports a

finding of trespass on the Plaintiffs’ properties. Testimony

showed that the emissions from DuPont’s factory were most heavily

concentrated over the Plaintiffs' property and that their property

showed evidence of heavy metal contamination that was most likely

airborne in nature. Accordingly, the jury could reasonably infer

that a trespass was committed, and the jury’s findings is affirmed.

III. Whether the evidence presented was sufficient to justify the
award of damages.

DuPont raises two issues on appeal regarding the jury’s award

of damages. First, it contends that no evidence was presented to

determine whether the trespass was permanent or temporary in

nature. If a permanent trespass occurred, the Plaintiffs could

recover "the difference in the market value of the land immediately

before and immediately after the trespass." Porras v. Craig, 675

S.W.2d 503, 504 (Tex. 1984). Recovery for temporary trespass is

limited to the "amount necessary to place the owner of the property

in the same position he occupied prior to the injury." Kraft v.

Langford, 565 S.W.2d 223, 227 (Tex. 1978).

DuPont argues that the Plaintiffs should have presented

evidence that the trespass was permanent or that the pollution

could have been removed from the Plaintiffs’ properties to restore

15
that property to its previous condition. However, that is not the

burden placed on a Plaintiff claiming trespass. In Sadler v.

Duvall, 815 S.W.2d 285 (Tex. Ct. App.-Texarkana 1991, writ denied),

the court held that "in absence of proof that repair is actually or

economically feasible, the injury may be deemed permanent." Id. at

292. In this case, DuPont neither presented any evidence to

support a temporary trespass, nor requested a jury charge on such

an issue. Accordingly, it was not error for the jury to consider

only damages for permanent trespass.

DuPont’s second issue with respect to damages is that the

evidence was insufficient to support the damages awarded. The

Stevensons were awarded $168,000, and Sharon Harper was awarded

$96,000; this amounts to an award of $6,000 per acre for each

Plaintiff. The jury form stated that these damages were given for

the "difference in the market value of the property . . .

immediately before and immediately after the damage." As noted

above, the Porras court held that this is the proper standard for

the measurement of damages from permanent trespass.

The Plaintiffs again argue that DuPont waived its right to

challenge any expert testimony regarding damages. However, as

noted above, this argument goes only to admissibility of the

evidence and does not affect consideration of the sufficiency of

the expert’s testimony to support the jury’s verdict.

The Plaintiffs’ only proof as to the value of their properties

16
was the testimony of John Fox, who opined that the value of the

properties was between $10,000 to $15,000. Plaintiffs’ brief

characterizes Fox’s testimony as showing the value of the property

without pollution. The Plaintiffs also argue that their land is

now worthless because they so testified. DuPont argues that the

Plaintiffs description of Fox’s testimony is misleading. DuPont

contends that Fox valued the property as of the present time,

including any possible contamination by DuPont. As to the

Plaintiffs’ valuation of their own properties, DuPont contends that

its testimony is simply inconsistent with that of Fox, who

testified as to the properties’ values.

A review of the record does not support Plaintiffs’

characterization of Fox’s testimony. He never testifies that his

values were for the property without any pollution. Fox’s

testimony discussed the value of the property in an industrial

area, but he never mentioned that some properties were valued

differently because of any potential pollution problems.

Accordingly, Plaintiffs' arguments are without merit. Furthermore,

Plaintiffs describe DuPont’s expert’s 40 percent discount as based

on industrial factors. DuPont’s expert only adjusted the value to

note the value of residential improvements due to external

obsolescence. Again, Fox never mentioned that these values assumed

no pollution had occurred.

In any event, neither method is a proper method of calculating

damages. Texas law is very clear that the proper measure of

17
damages for permanent trespass is "the difference in the market

value of the land immediately before and immediately after the

trespass." Porras, 675 S.W.2d at 504. Here, the jury was

presented with testimony about only one value for the property. No

evidence was presented to show the value of the land before the

trespass began. As such, the jury could not reasonably have

awarded the damages it did in this case.

In these circumstances, "[t]he 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 be remedied at a second

trial." Bradley v. Armstrong Rubber Co., 130 F.3d 168, 178 (5th

Cir. 1997). We hold that the damages award, therefore, should be

vacated and the case remanded for a new trial on damages.

IV. Whether DuPont’s appeal should be dismissed as frivolous.

In addition to DuPont’s appeal, the Plaintiffs have also filed

a Motion for Recovery of Damages and Costs for Frivolous Appeal

Under F.R.A.P. 38. Further, Plaintiffs have also moved to strike

DuPont's response to the motion as untimely. First, without

undertaking a lesson in applying F.R.A.P. 27 and F.R.A.P. 26(c), we

note that DuPont's response was timely filed. Second, regardless

of whether DuPont's response was timely, we must still address

Plaintiffs' motion. The motion is predicated on two arguments:

(1) DuPont cannot appeal the trial court’s findings regarding

admissibility of evidence, even when couched in terms of an appeal

18
on the sufficiency of the evidence; and (2) DuPont cannot appeal

the district court’s failure to give an instruction on temporary

trespass when it failed to preserve the right on appeal.

As to the first point, a distinction exists between the

admissibility of the evidence and its sufficiency to sustain a jury

verdict. This point was addressed above. Plaintiffs arguments do

not solely address the reliability of the evidence or its

admissibility. Although some of their arguments concern

reliability, their briefs, taken as a whole, argue specific facts

in the testimony, not just the reliability or admissibility of the

testimony. Finally, this Court only rarely finds an appeal to be

frivolous. See, e.g., Sturgeon v. Airborne Freight Corp., 778 F.2d

1154, 1161 (5th Cir. 1985). For example, in Stelly v.

Commissioner, 761 F.2d 1113 (5th Cir. 1985), the Court held an

appeal frivolous only because a great weight of the authority in

the case was clearly on point and did not favor the Plaintiff. Id.

at 1116. This is not one of those cases. This Court has

previously and repeatedly denied points of error because the

appellant failed to preserve the issue in the court below. In

those instances, the Court merely denied the appeal without a

finding of frivolity. This case should be no different.

Finally, because this Court is reversing the judgment as to

damages, this Court cannot find that the appeal was frivolous. The

reversal is a clear indication that the appeal has merit.

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Therefore, the motion for damages and costs is denied.

CONCLUSION

Based on the foregoing discussion, DuPont’s point of error

regarding the proper definition of trespass and its arguments

concerning the sufficiency of the evidence to support a finding of

trespass are without merit, and the district court’s denial of the

judgment as a matter of law and the jury’s findings of trespass are

AFFIRMED. However, the Plaintiffs did not carry their burden of

proving damages because they failed to prove the value of the land

before the trespass. Accordingly, we REVERSE on this point and

REMAND for a new trial on the damages sustained by the Plaintiffs.

Because we find that the damages were not properly proved, this

appeal cannot be frivolous, and the Plaintiff’s motion is DENIED.

AFFIRMED in part, REVERSED in part, and REMANDED.

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