Herrington v. LEAF RIVER FOREST PROD.

733 So. 2d 774, 1999 WL 93611
CourtMississippi Supreme Court
DecidedFebruary 25, 1999
Docket96-CA-00976-SCT
StatusPublished
Cited by41 cases

This text of 733 So. 2d 774 (Herrington v. LEAF RIVER FOREST PROD.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herrington v. LEAF RIVER FOREST PROD., 733 So. 2d 774, 1999 WL 93611 (Mich. 1999).

Opinion

733 So.2d 774 (1999)

Brandi HERRINGTON
v.
LEAF RIVER FOREST PRODUCTS, INC., a foreign corporation; Warren Richardson, an individual; Acker Smith, an individual; Leaf River Corporation, a foreign corporation; Great Northern Nekoosa Corporation, a foreign corporation; and Georgia Pacific Corporation, a foreign corporation, Successor of Great Northern Nekoosa Corporation.

No. 96-CA-00976-SCT.

Supreme Court of Mississippi.

February 25, 1999.

*775 John M. Deakle, William R. Couch, Hattiesburg, Patrick W. Pendley, Plaquemine, Curtis R. Hussey, Larry O. Norris, Hattiesburg, Attorneys for Appellant.

W. Wayne Drinkwater, Jr., Margaret Stewart Oertling, Jackson, Joe Sam Owen, Gulfport, James H. Heidelberg, Pascagoula, Attorneys for Appellees.

BEFORE PITTMAN, P.J., SMITH AND MILLS, JJ.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Appellant Brandi Herrington brought a civil action against Leaf River Forest Products, et. al. in the Circuit Court of Jones County, Mississippi. After recusal of the trial judge, the action was transferred to Jackson County. Herrington's action was one of hundreds brought against Leaf River Forest Products complaining that its pulp mill discharged 2,3,7,8-tetra-chlorodibenzo-p-dioxin ("dioxin") into the Leaf River in Perry County. The trial court granted a motion for summary judgment in favor of Leaf River Forest Products and stated that those plaintiffs with physical injury, including Herrington, had claims which lacked legally sufficient evidence to show their exposure or the mill's release of dioxin into the Leaf River. The court stated, "... such Plaintiffs have no medical or scientific evidence that their diseases were caused by dioxins or other chemicals of the kind discharged by the Leaf River Mill." From the lower court's grant of summary judgment, Brandi Herrington appeals assigning the following as error:

I. WHETHER THE TRIAL COURT ERRED IN DENYING HERRINGTON'S MOTION FOR A STAY OR IN THE ALTERNATIVE *776 AN EXTENSION BEFORE RULING ON THE SUMMARY JUDGMENT MOTION.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LEAF RIVER FOREST PRODUCTS, INC.

STATEMENT OF THE FACTS

¶ 2. Brandi Herrington lived in her father's cabin and later in her grandmother's cabin, both on the Leaf River near New Augusta, Mississippi, from 1983 through 1989. During this period, Herrington alleges Leaf River Forest Products, Inc. released dioxin into the Leaf River. Both cabins were approximately one and a half river distance miles downstream from the Leaf River pulp mill. Herrington's father often fished in the river, and she frequently ate the fish he caught. When deposed, however, Herrington's father stated that after the mill started up and the water became smelly, he went above the mill to fish and never fished below the mill again. Any contaminants from fish caught above the mill cannot be attributed to Leaf River Forest Products. However, Herrington says she also remembers the river flooding the land around the cabins and remembers water sometimes entering the cabins.

¶ 3. The family moved to Hattiesburg, Mississippi, in 1989. In 1990, Herrington moved to South Carolina, and she was diagnosed with Hodgkin's disease in 1991. She underwent five surgeries, and in March 1994, doctors determined she was cured. Herrington believes her exposure to fish and water from the Leaf River caused her to develop Hodgkin's disease. From the lower court's summary disposition of her action against Leaf River Forest Products, Inc. et. al., she appeals.

STANDARD OF REVIEW

¶ 4. When reviewing the lower court's decision to grant summary judgment, we employ a de novo standard. Moore ex rel. Benton County v. Renick, 626 So.2d 148, 151 (Miss.1993). The argument underlying a request for summary judgment is that there are no issues of material fact. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). Before summary judgment is granted, the lower court must determine if there are material factual questions in issue over which reasonable jurors could disagree. Russell v. Orr, 700 So.2d 619, 624 (Miss. 1997) (citing Carpenter v. Nobile, 620 So.2d 961, 965 (Miss.1993)). The non-moving party is given the benefit of every reasonable doubt which arises as to whether there is an issue of material fact. Brown, 444 So.2d at 362. On review of a grant of summary judgment, our only determination is whether there are material issues of fact to be tried. Mink v. Andrew Jackson Casualty Insurance Co., 537 So.2d 431, 433 (Miss.1988).

I. WHETHER THE TRIAL COURT ERRED IN DENYING HERRINGTON'S MOTION FOR A STAY OR IN THE ALTERNATIVE AN EXTENSION BEFORE RULING ON THE SUMMARY JUDGMENT MOTION.

¶ 5. Leaf River Forest Products, Inc. included in its motion and renewed motion for summary judgment the affidavit of Dr. Joseph Rodricks, an expert in dioxin analysis, two affidavits of Warren Richardson, the pulp mill manager, and the affidavit of Professor Christopher Rappe, head of the Institute for Environmental Chemistry in Umea, Sweden. Herrington contends she should have been given an extension or stay in order to investigate the validity of Dr. Christopher Rappe's affidavit and to depose Dr. Rappe. Leaf River Forest Products contends summary judgment was proper even without the affidavit of Dr. Rappe. We agree with Leaf River.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LEAF RIVER FOREST PRODUCTS, INC.

*777 A. Burden of Proof

¶ 6. Leaf River relies on our prior decisions involving its pulp mill and contends Herrington was required to undergo blood tests to establish causation. In Beech v. Leaf River Forest Products, Inc., 691 So.2d 446, 451 (Miss.1997), we held: "... 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." Herrington contends this case is one of first impression since the facts are distinct from prior cases involving Leaf River Forest Products. Because Herrington's theory of recovery is negligence and not emotional distress, nuisance, or trespass, this factual distinction is readily apparent.

¶ 7. In Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648 (Miss.1995), we dealt with infliction of emotional distress and nuisance claims. We dealt with nuisance and trespass claims in Leaf River Forest Products, Inc. v. Simmons, 697 So.2d 1083 (Miss.1996). In Beech, we were not called on to deal with the negligence claim. 691 So.2d at 446. In Anglado v. Leaf River Forest Products, Inc., 716 So.2d 543 (Miss.1998), we discussed trespass and nuisance. Therefore, we must address the burden of proof required to withstand summary judgment when the theory of recovery is negligence and the damages asserted are physical injuries.

¶ 8. Citing our prior holdings in slip and fall cases and the language of the Fifth Circuit Court of Appeals in asbestos litigation, Herrington contends circumstantial evidence is sufficient to establish causation. Circumstantial evidence consists of "evidence of a fact, or a set of facts, from which the existence of another fact may reasonably be inferred." Hardy v. K Mart Corp., 669 So.2d 34, 38 (Miss.1996)(quoting Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 585, 156 So.2d 734, 736 (1963)).

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Cite This Page — Counsel Stack

Bluebook (online)
733 So. 2d 774, 1999 WL 93611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrington-v-leaf-river-forest-prod-miss-1999.