IN THE SUPREME COURT OF MISSISSIPPI
NO. 94-CA-00055-SCT
ODIS BEECH, LURVIA BEECH, WILSON WILLIAMS
AND ERNESTINE B. WILLIAMS
v.
LEAF RIVER FOREST PRODUCTS, INC., WARREN
RICHARDSON, ACKER SMITH, LEAF RIVER
CORPORATION, GREAT NORTHERN NEKOOSA
CORPORATION AND GEORGIA PACIFIC
CORPORATION
DATE OF JUDGMENT: 08/09/93
TRIAL JUDGE: HON. JAMES E. THOMAS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ROBERT A. PRITCHARD
KENNETH BARKLEY ROBERTSON
IRWIN W. STOLZ, JR.
SEATON D. PURDOM
ATTORNEYS FOR APPELLEES: W. WAYNE DRINKWATER, JR.
JOE SAM OWEN
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 3/20/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 4/10/97
BEFORE SULLIVAN, P.J., McRAE AND ROBERTS, JJ.
SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE AND FACTS
¶1. In 1989 the Mississippi Department of Environmental Quality released a report showing that fish
in the Leaf River and Pascagoula River contained dioxin, and warned citizens to refrain from eating
the fish. Subsequently, the Mississippi Commission on Wildlife, Fisheries, and Parks ordered that the
Leaf River, Pascagoula River, and Escatawpa River be closed to commercial fishing. This order was
later rescinded in January of 1991. However, the report spurred a flurry of litigation between
residents along the rivers and the companies allegedly responsible for the water contamination. See
Leaf River Products, Inc. v. Ferguson, 662 So.2d 648, 650-51 (Miss. 1995).
¶2. Odis and Lurvia Beech, and Wilson and Ernestine Williams are all residents of Plum Bluff Estates
on the Pascagoula River. On February 26, 1991, the Beeches filed a complaint against Leaf River
Forest Products, Inc., Warren Richardson, Acker Smith, Great Northern Nekoosa Corporation, and
Georgia Pacific Corporation in the Circuit Court of George County for loss in property value, mental
and emotional anguish, physical and emotional suffering, fear of future disease, and loss of enjoyment
of life. Richardson was General Manager of Leaf River, and Smith was Manager of Environmental
Affairs for Leaf River. Great Northern Nekoosa Corporation was the parent company of Leaf River
until being acquired by Georgia Pacific Corporation. The Beeches' complaint alleged that Leaf River
operated a pulp mill that dumped pollutants into the Leaf and Pascagoula Rivers. The Beeches
pursued their claim under the theories of public and private nuisance, negligence, absolute liability for
ultrahazardous activity, trespass, and outrageous conduct. The Williamses filed a similar complaint on
the same day, in the same court. The court consolidated the two actions on May 11, 1993, per the
plaintiffs' motion.
¶3. On June 11, 1993, the Circuit Court of George County entered an order changing venue from the
Circuit Court of George County to the Circuit Court of Harrison County, pursuant to a motion filed
by the defendants on March 22, 1993. The Circuit Court of Harrison County issued an order vacating
orders previously entered by the Circuit Court of George County, including the order changing
venue, on June 23, 1993. On June 20, the Circuit Court of Harrison County entered an order
changing venue. Both courts cited the community bias against the defendants in the case due to the
large number of plaintiffs involved in similar actions residing in the county and the substantial media
attention generated by the case in George County. Voir dire began on June 22, 1993.
¶4. On June 23, 1993, the Circuit Court of Harrison County entered an order excluding the testimony
of plaintiffs' witness Elmo R. Zumwalt, Jr., finding that he was not qualified to testify as an expert
regarding dioxin, the pulp and paper industry, or government activities, and that his testimony would
be irrelevant and prejudicial. Also entered on June 23 was an order granting partial summary
judgment to the plaintiffs on the issue of interference with the plaintiffs' riparian rights, because the
court found that the plaintiffs had no riparian rights in the rivers. The court also granted summary
judgment for defendants Warren Richardson and Acker Smith on June 23. On June 24, 1993, the
court granted summary judgment for the defendants on plaintiffs' claims for mental and emotional
distress and fear of future disease. On July 8, the jury submitted a verdict in favor of the defendants
on all remaining claims. The court entered judgment in favor of the defendants on all claims on
August 9, 1993. Beech et al. filed a motion for a new trial, which the circuit court denied on
December 16, 1993. The plaintiffs filed their notice of appeal to this Court, assigning as error the
following:
I. THE TRIAL COURT ERRONEOUSLY CHANGED TRIAL VENUE.
II. THE TRIAL COURT ERRONEOUSLY LIMITED PLAINTIFFS' EXPERT
TESTIMONY.
STATEMENT OF THE LAW
Standard of Review
¶5.
An application for a change of venue is addressed to the discretion of the trial judge, and his
ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an
abuse of discretion or that the discretion has not been justly and properly exercised under the
circumstances of the case.
Mississippi State Highway Comm'n v. Rogers, 128 So.2d 353, 358 (Miss. 1961) (Kyle).
The relevancy and admissibility of evidence are largely within the discretion of the trial court
and reversal may be had only where that discretion has been abused. Johnston v. State, 567
So.2d 237, 238 (Miss.1990), citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989); Monk v.
State, 532 So.2d 592, 599 (Miss.1988). Unless the trial judge's discretion is so abused as to be
prejudicial to a party, this Court will not reverse his ruling. Shearer v. State, 423 So.2d 824,
826 (Miss.1982), citing Page v. State, 295 So.2d 279 (Miss.1974). The discretion of the trial
judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston,
567 So.2d at 238. See M.R.E. 103(a), 104(a).
Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss. 1992). "The decision
whether an expert is qualified rests in the sound discretion of the trial court." T.K. Stanley, Inc. v.
Cason, 614 So.2d 942, 951 (Miss. 1992) (citing Smith v. State, 530 So.2d 155, 162 (Miss.1988)).
I.
THE TRIAL COURT ERRONEOUSLY CHANGED TRIAL VENUE.
¶6. Beech et al. claim that the court abused its discretion in changing venue. They first assert that the
defendant's petition for change of venue was not in proper form, because it wasn't signed by one of
the parties, and was not filed in a timely fashion. The court granted the defendants' motion for change
of venue pursuant to Miss. Code Ann. § 11-11-51. That statute reads as follows:
When either party to any civil action in the circuit court shall desire to change the venue, he
shall present to the court, or the judge of the district, a petition setting forth under oath that he
has good reason to believe, and does believe that, from the undue influence of the adverse
party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the
petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and
that the application is made as soon as convenient after being advised of such undue influence,
prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. On
reasonable notice in writing to the adverse party of the time and place of making the
application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear
the parties and examine the evidence which either may adduce, and may award a change of
venue to some convenient county where an impartial trial may be had, and, if practicable, in
which the circuit court may next be held. If made in vacation, the order shall be indorsed on the
petition and directed to the clerk, who shall file the same with the papers in the suit.
Miss. Code Ann. § 11-11-51. The defendants filed their motion for change of venue on March 22,
1993, nearly two years after the action was commenced in the Circuit Court of George County.
However, the motion was filed a full three months before the trial began on June 22, 1993. This
Court has previously held that a change of venue motion filed within one month of trial should have
been granted. Mississippi State Highway Comm'n, 128 So.2d at 355-58. The trial in this case was
not delayed as a result of the change of venue, and a plain reading of § 11-11-51 clearly shows that
the requirement of a timely filing is intended to prevent a party from filing a change of venue motion
simply as a delay tactic. Since part of the basis of the change of venue motion was the amount of pre-
trial publicity, it would have been premature to file such a motion so long before the trial that the
effects of the publicity would have been too remote for a determination of resulting prejudice in the
community. Based upon all of these facts, it cannot be said that the change of venue motion filed
three months before the trial, and not resulting in any trial delay, was untimely.
¶7. Plaintiffs' argument that the change of venue motion was improper because it lacked the parties'
signatures is also without merit. The petition for change of venue was signed by Lee Davis Thames,
attorney for the defendants. There is no requirement that a petition for change of venue be signed by
the party himself and not by the attorney. Beech et al. point to Lane v. Woodland Hills Baptist
Church, 285 So.2d 901, 905 (Miss. 1973), in which this Court held that the appellants in a will
contest were not bound by their attorney's stipulation which would have surrendered their rights to
any relief. While this Court determined that an attorney generally has no authority to bind his client as
to matters of law, this Court also recognized that in certain cases, an attorney may have the authority
to do so if "such admission or stipulation is a proper step in the accomplishment of the purpose for
which he is employed." Id. (citations omitted). The current case differs from Lane, because it does
not involve a stipulation or admission, and rather than waiving any rights, the attorney for Leaf River
asserted the right to a fair trial in a less biased venue.
¶8. Beech et al. also point to Vance v. Vance, 20 So.2d 825, 825-27 (Miss. 1945), in which this
Court stated, "The rule is that if a statute specifically prescribes who shall make a certain affidavit, it
can be made by none other than the person specified, although there is nothing in the language of the
statute to show that its designation was intended to be exclusive." Id. at 826 (citation omitted)
(remanding a divorce case in order for the party to personally sign the complaint for divorce, which
had previously been signed by his attorney). Beech et al. argue that because § 11-11-51 states that
the party shall present the change of venue petition under oath to the court, then the petition should
have been signed by the party and not the attorney. However, in this case, the defendant corporation,
being a figural entity, obviously cannot sign a petition. An attorney for a corporation may act as its
agent in receiving service of process under Mississippi's long-arm statute, and a corporation's
attorney may sign a conveyance to transfer the corporation's land. Miss. Code Ann. §§ 13-3-57 and
89-1-21. It should therefore be sufficient for the corporation's attorney to act as its agent in signing a
change of venue petition.
¶9. Plaintiffs also argue that the court should have conducted voir dire and heard argument and
evidence from the plaintiffs before its ruling, instead of relying solely on the exhibits attached to the
defendants' petition. However, this Court has previously recognized the ineffectiveness of voir dire in
detecting juror bias created by pre-trial publicity. Fisher v. State, 481 So.2d 203, 220-21 (Miss.
1985). Since jurors are aware that they are supposed to be impartial, they are unlikely to reveal any
bias, even if they recognize it in themselves. Id. The plaintiffs filed a brief in response to the change
of venue petition, so they were not denied the opportunity to be heard. The defendants presented
sufficient evidence in the form of affidavits, depositions, newspaper articles, videotapes of news
stories, and other exhibits to support their petition for change of venue. The evidence showed that of
the 8,909 residents of George County eligible for jury duty, 750 were plaintiffs in dioxin cases
brought against the defendants in this case. Even more were potential class members in a class action
against the same defendants certified in the Circuit Court of Jackson County in October of 1992,
Hubbard v. Leaf River Forest Products, Inc., which was vacated in October of 1993, after this trial
was finished. One exhibit listed over three hundred news articles printed on the dioxin cases in local
newspapers between November of 1989 and February of 1993. Taking these numbers into
consideration, the trial court reasonably determined that the excessive pre-trial publicity and large
number of potential jurors involved in similar litigation would prevent the defendants from receiving a
fair trial in George County.
¶10. Beech et al. also complain that the court failed to consider the alternatives to change of venue
set out in Hudson v. Taleff, 546 So.2d 359, 363 (Miss. 1989). In Hudson this Court stated that the
unfair trial resulting from the "statistical aberration" of the venire makeup could have been avoided by
the trial court granting additional peremptory challenges, increasing the size of the venire, or
sustaining challenges for cause. Id. (quoting Mhoon v. State, 464 So.2d 77, 81 (Miss. 1985)).
However, change of venue was not even mentioned in Hudson, so trial courts are certainly not
bound by that case to consider alternatives to change of venue. The language in Hudson clearly
creates mere suggestions for alleviating venire bias in a large county. Id. Hudson does not require
use of those suggestions, especially in a lesser populated county such as George County. Plaintiffs
also rely on Hudson in arguing that Jackson County would have been a more appropriate county for
change of venue purposes. However, their reliance is misplaced, because Hudson merely says that
larger counties are more able to use the suggested means of alleviating venire bias; it does not
remotely suggest that changes of venue should be limited to transfers to larger counties for use of
those means.
¶11. The change of venue was reasonable in light of the extensive pretrial publicity and the citizen
bias against the defendants created by the number of George County residents who have brought
similar dioxin cases against the defendants. These bases for change of venue were properly presented
to the trial court through Leaf River's petition. Upon proper consideration, the trial court determined
that the evidence supported the defendants' request for change of venue. The trial court's decision
cannot be said to have been an abuse of discretion, so we do not reverse based upon this assignment
of error.
II.
THE TRIAL COURT ERRONEOUSLY LIMITED PLAINTIFFS' EXPERT TESTIMONY.
A.
Admiral Zumwalt
¶12. Beech et al. argue that the trial court abused its discretion in wholly excluding the testimony of
their witness Admiral Zumwalt. Plaintiffs sought to introduce Zumwalt's testimony as an expert in the
areas of 1) the relationship between dioxin and the pulp and paper industry, 2) governmental
regulation of dioxin, 3) lobbying efforts by the pulp and paper industry regarding dioxin, 4) the
public's perception of dioxin, 5) his personal experiences regarding dioxin-based Agent Orange used
in Vietnam, and 6) the health effects of dioxin. The trial court entered an order on June 23, 1993,
granting the defendants' motion in limine to exclude Zumwalt's testimony, finding that he was not
qualified to testify as an expert in any of these areas, and that his testimony regarding the death of his
son as a result of exposure to Agent Orange would be irrelevant and prejudicial.
¶13. Miss. R. Evid. 702 governs expert testimony. Rule 702 reads, "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise." Miss. R. Evid. 702. Plaintiffs assert that
Admiral Zumwalt should have been allowed to testify as an expert regarding the effects of dioxin on
people, based upon his experience working on a study panel for the United States Veterans
Administration. According to Zumwalt's deposition, he had no formal training in any of the areas in
which the plaintiffs offered his testimony as an expert. His knowledge regarding dioxin and its health
effects was based upon other people's studies that Zumwalt had read and upon conversations that he
had with scientists. Zumwalt's participation on the study panel for the Veterans Administration was in
the capacity of a layman member, involved in collecting studies, publications, and other documents
related to the use of Agent Orange in Vietnam. Zumwalt had no understanding of the manufacturing
process in the pulp and paper industry, and his knowledge regarding governmental regulation of
dioxin was based upon hearsay. Based upon his deposition testimony, it cannot be said that the trial
court abused its discretion by refusing to allow Zumwalt to testify as an expert.
B.
Dr. Maggio
¶14. Beech et al. also complain that the trial court erred in excluding the testimony of their witness
Dr. Maggio. Dr. Maggio is a psychiatrist who would have given testimony regarding the plaintiffs'
fear, apprehension and grief resulting from their alleged exposure to dioxin. This testimony went
toward proving plaintiffs' claims for mental and emotional distress and fear of future disease.
However, since the trial court granted the defendants summary judgment on those claims, the court
instructed the parties that the testimony of Dr. Maggio would not be allowed. Mississippi has not
recognized a cause of action for fear of future disease. Leaf River Forest Products, Inc. v.
Ferguson, 662 So.2d 648, 658 (Miss. 1995). Furthermore, the plaintiffs' failure to produce any proof
through blood tests or other medical evidence was fatal to their claims for mental and emotional
distress and fear of future disease. As a result, any testimony regarding these claims became irrelevant
for purposes of the trial. The judge therefore properly excluded the testimony of Dr. Maggio.
C.
Dr. Hallett
¶15. Appellants Beech et al. also claim that the trial court abused its discretion by limiting the
testimony of their expert witness Dr. Hallett. They claim that excluding Dr. Hallett's testimony
regarding his work experience with dioxin and its harmful effects cast doubt on Dr. Hallett's
qualifications in the minds of the jury. The trial court limited Hallett's testimony regarding an
evacuation due to toxic chemical exposure in Niagara Falls, New York, because it was not relevant
to determination of his expertise. Defendants' objection based upon irrelevancy was also sustained
regarding Hallett's testimony during voir dire on an episode of mercury contamination downstream
from a pulp mill in Canada. Similarly, the trial court sustained the defendants' objection to Hallett's
specific testimony during voir dire regarding bioaccumulation of dioxin, because it was irrelevant for
purposes of tendering Hallett as an expert. The trial court later refused to admit the proffered
testimony of Hallett on bioaccumulation, the tendency of an organic chemical to move from water
into living things and up the food chain. All of this testimony was properly excluded as irrelevant
during voir dire of the expert witness, because it went beyond determination of his qualifications.
Furthermore, Hallett's specific testimony concerning an episode of biocontamination in New York or
of mercury contamination in Canada had no relevance whatsoever to the proceedings at hand,
especially since mercury contamination was not alleged in this case. Hallett's testimony regarding
bioaccumulation of dioxin had no relevance to the plaintiffs' remaining claims of property damage at
trial, and was also properly excluded. Therefore, the trial court did not abuse its discretion in limiting
Hallett's testimony on these subjects.
¶16. Beech et al. also argue that the trial court erred in refusing to allow Dr. Hallett to testify
regarding Exhibit D-256 during redirect. However, that exhibit was not previously introduced during
direct or cross-examination, and so was not proper subject matter for redirect examination. See
Weeks v. State, 493 So.2d 1280, 1285 (Miss. 1986) (re-direct should be limited to matters inquired
into during cross-examination) (citing Cole v. Tullos, 90 So.2d 32, 34-35 (Miss. 1956)). Hallett was
allowed to testify regarding the subject matter of Exhibit D-256, dioxin levels at Mineral Creek, by
using Exhibit D-269 which had been discussed on cross-examination. Therefore, the trial court did
not abuse its discretion in refusing to allow Hallett's testimony regarding Exhibit D-256.
D.
Dr. Olson
¶17. Plaintiffs also complain that limiting Dr. Olson's explanation of how dioxin affects the body
unreasonably hampered their case. The trial court did limit Olson's testimony regarding the effects of
dioxin on the human body. However, as previously stated regarding Dr. Hallett's testimony, any
evidence relating to the effects of dioxin on the human body became irrelevant upon the trial court's
granting summary judgment to the defendants on the claims for emotional and mental distress and
fear of future disease. Again, the trial court did not abuse its discretion in refusing to admit this
proffered line of testimony.
CONCLUSION
¶18. The trial court did not err in transferring venue to Harrison County in light of the community
bias against Leaf River in George County. Similarly, the trial court did not abuse its discretion by
limiting the plaintiffs' expert witness testimony. Therefore, we must give deference to the trial court's
rulings on venue and admissibility of evidence and affirm the lower court's decision.
¶19. AFFIRMED.
LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, ROBERTS, SMITH AND MILLS, JJ.,
CONCUR. McRAE, J., CONCURS IN RESULT ONLY.