Opinion
No. 2:97-CV-20-DE
December 30, 1999
ORDER
This matter comes before the court on Defendants' Second Motion for Summary Judgment. Plaintiffs have responded to the Motion and it is ripe for ruling.
I. Background
Plaintiffs, who have owned a home near Pleasant Hill Rest Home ("Pleasant Hill") in Northampton County since 1986, filed this suit in 1997 under the Clean Water Act, 33 U.S.C. § 1311 et seq (Supp. 1999). Plaintiffs claim that Defendants allowed sewage from Pleasant Hill to seep into waters of the United States, onto their land, and into their well water supply, thereby causing damage to Plaintiffs' property and health. Plaintiffs seek relief under the citizen's suit provisions of Section 505(a) of the Clean Water Act ( 33 U.S.C. § 1365(a)) and under various North Carolina tort doctrines.
On March 31, 1999, Chief United States District Judge Terrence W. Boyle denied Defendants' First Motion for Summary Judgment. (Order of March 31, 1999). Following this Order, Defendants moved to reopen discovery, largely to gather information on additional health care expenses Plaintiffs incurred after the original discovery deadline of April 30, 1998. Chief Judge Boyle reopened discovery until July 3, 1999, but limited discovery "to issues related to Plaintiff's medical and psychological care and treatment." (Order of June 3, 1999). Subsequently, Chief Judge Boyle referred jurisdiction over this matter to the undersigned, with the consent of both parties, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.Pro. 73. (See Consent Order of June 8, 1999). Defendants thereafter filed the Motion presently before the Court.
II. Scope of Motion
In their Second Motion for Summary Judgment, Defendants contend that Plaintiffs' evidence is insufficient for a jury to conclude Defendants caused certain of Plaintiffs' health problems. Defendants focus largely on cardiac and psychological treatment received by William True, Jr. ("Mr. True") after the close of discovery in April 1998.
To the extent Defendants attempt to revisit summary judgment on issues which were before Chief Judge Boyle at the time of his April 30, 1999 Order, the Court declines to do so. A review of court documents reaffirms that genuine issues of material fact remain in the case. The undersigned accordingly addresses Defendants' filing as a motion for partial summary judgment, limited to Plaintiffs' ability to recover for health problems and expenses incurred after April 30, 1998.
III. Summary Judgment Standard
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). When making the summary judgment determination, the facts and all reasonable inferences must be viewed in the light most favorable to the nonmovant. See Anderson, 477 U.S. at 255.
There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 250. The moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the nonmovant's evidence is insufficient to establish his claim. See Celotex Corp., 477 U.S. at 331 (Brennan, J., dissenting). A trial judge faced with a summary judgment motion "must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252.
IV. Standard for Causation Evidence
According to Defendants, Plaintiffs offer insufficient evidence for a reasonable jury to conclude that Defendants' negligence was the proximate cause of Plaintiffs' 1998 and 1999 health problems. Accordingly, Defendants ask the court to enter summary judgment on these health-related claims.
"Although issues of causation are to be decided by the jury, whether the evidence is sufficient to create a jury issue is solely a question of law to be determined by the court." Charleston Area Medical Ctr v. Blue Cross, 6 F.3d 243, 245 (4th Cir. 1993) (citation omitted). In diversity cases or cases applying state law, this question is answered using federal standards. See id; Wratchford v. S.J. Groves Sons Co., 405 F.2d 1061, 1065-66 (4th Cir. 1969). See also Banker's Trust Co. v. Lee Keeling Assoc., Inc., 20 F.3d 1092, 1099 (10th Cir. 1994) ("However, while federal law provides the procedural measure of the sufficiency of the evidence, [state] law on negligence provides the substantive measure.") (citation omitted).
The Fourth Circuit has repeatedly held that for a claim to survive summary judgment, a party must offer evidence which could lead a reasonable jury to conclude that a defendant's acts more probably than not caused plaintiff's injury. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-2 (4th Cir. 1982); Wratchford, 405 F.2d at 1066. "Proof of causation must be such as to suggest `probability' rather than mere `possibility,' precisely to guard against raw speculation by the fact-finder." Sakaria v. Trans World Airlines, 8 F.3d 164, 172-3 (4th Cir. 1993) (citations omitted). Evidence which shows a reasonable probability is especially important when expert testimony is used to show causation, because a jury must rely on experts to evaluate relevant data for them. See Ralston-Purina Co. v. Edmunds, 241 F.2d 164, 168 (4th Cir. 1957); see also Sakaria, 8 F.3d at 173 (holding that expert opinion testimony must permit an inference that a defendant caused plaintiff's injuries).
As with questions of causation, the credibility of experts is a matter for the jury, but "only if the party with the burden of proof has offered enough evidence to sustain a verdict in its favor." Alevromagiros v. Hechinger Co., 993 F.2d 417, 421 (4th Cir. 1993). Therefore, this Court must determine whether Plaintiffs' evidence, including expert testimony, would permit jurors to draw one of two reasonably probable inferences as to causation see Bryan v. Merrill Lynch, Inc., 565 F.2d 276, 281 (4th Cir. 1977); Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir. 1958), or if the jurors would be choosing among "merely one of several equally surmisable possibilities . . . `on the basis of sheer speculation.'" Charleston Area Med. Ctr., 6 F.3d at 247 (quotingLovelace, 681 F.2d at 242). see also Textron, Inc. v. Barber-Colman Co., 903 F. Supp. 1558, 1565 (W.D.N.C. 1995) ("Thus, the inferences a court is asked to draw by expert testimony must be reasonable in light of competing inferences."). If jurors could determine with reasonable probability that Defendants' acts or omissions were a proximate cause of Plaintiffs' injuries, the matter is for the jury to decide; otherwise, summary judgment is appropriate. See Sakaria, 8 F.3d at 172.
V. Plaintiff William True's Claims for Emotional Distress
In November 1998, Mr. True began therapy with Dr. Jan Sweet Freeman, a psychotherapist, because he was experiencing feelings of depression. Both Dr. Freeman and Dr. Durham, a clinical psychologist who evaluated Mr. True in January of 1998, diagnosed Mr. True as having a chronic Adjustment Disorder with Mixed Emotional Features (Dr. Freeman Dep. at 50, 112; Dr. Durham Aff. at ¶ 15). In March of 1999, Dr. Freeman referred Mr. True to Dr. Lubica Fedor, a psychiatrist, in order to determine whether medication would be helpful. (Dr. Freeman Dep at 14). Later, Dr. Fedor concluded that Mr. True suffered from a Major Depressive Disorder, and she acknowledged that an Adjustment Disorder can develop into Depression. (Dr. Fedor Dep. at 88). Dr. Fedor prescribed two antidepressant medications, Celexa and Wellbutrin, for Mr. True (Dr. Fedor Dep. at 40, 43-4).
Both Dr. Freeman and Dr. Fedor acknowledged that the various concerns which the Trues have voiced concerning the alleged contamination of their property could be significant stressors. (Dr. Freeman Dep. at 113-114, Dr. Fedor Dep. at 90-93). Dr. Durham noted that Mr. True's thoughts about the contamination appeared to be interfering with his cognitive functioning and that he suffered sleep difficulties associated with intrusive thoughts about the contamination. (Dr. Durham Aff. at ¶ 13, 15). Dr. Durham noted that counseling and relaxation training — the type of therapy Mr. True received from Dr. Freeman — could help Mr. True deal with stress related to the contamination. (Dr. Durham Aff. at ¶ 15).
Given these specific correlations between Defendants' alleged pollution and Mr. True's depression-related symptoms, the Court concludes that a reasonable jury could find that Mr. True's emotional distress was caused by Defendants' actions. Certainly, other events in Mr. True's life may be contributing to — or even causing — the stress and depression he suffers. In speaking with various care providers, Mr. True mentioned the terminal illness and death of his wife's father (Dr. Durham Aff. Ex. B at 3), employment-related problems (see Dr. Freeman Dep. at 53-4, 72), and an incident in which his father's store was robbed (Dr. Maradiaga Dep. at 42-3) as stressors. However, Plaintiffs have offered sufficient evidence for the jury to make an informed decision (rather than merely speculate) as to what caused Mr. True's emotional distress. Should the jury unreasonably disregard the impact of other factors on Mr. True's depression, Defendants may move for a remittitur or a judgment notwithstanding the verdict after trial. See Harrison v. Edison Bros. Apparel Stores, Inc., 151 F.3d 176, 181 (4th Cir. 1998) (upholding granting of judgment as a matter of law where no causation evidence linked plaintiff's emotional distress to events which occurred in the relevant time frame); Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.2d 576, 5811 (7th Cir. 1996) (granting a partial remittitur of emotional distress damages, after noting that plaintiff was not required to proffer expert testimony quantifying her emotional distress, because "[w]e are not convinced that psychological injuries are readily amenable to such quantification."). This Court therefore declines to grant summary judgment for Defendants as to Mr. True's emotional distress claims.
VI. Plaintiff William True's Coronary Artery Disease
In August of 1998, Plaintiff William True ("Mr. True") was admitted to Halifax Regional Medical Center after complaining of chest pain and was referred to cardiologist Dr. R. Lee Jobe. Dr. Jobe performed a cardiac catheterization on Mr. True and discovered significant stenosis (narrowing of the blood passageway) in two arteries. In September of 1998 Dr. Jobe performed angioplasty on Mr. True and eliminated the blockage in both arteries.
Plaintiffs contend that stress caused by Defendants' pollution caused Mr. True's coronary artery disease (CAD), and they offer testimony by several doctors who indicate that stress is a "risk factor" for the development of CAD). (Dr. Maradiaga Dep. at 88-89, 103-4; Dr. Frazier Dep. at 52-54, 96-97; Dr. Jobe Dep. at 29-31, 102-4). However, Defendants reply that Plaintiffs' proffered evidence fails to indicate a causal link to pass the necessary "probability" threshold outlined above.
Plaintiffs do not contend that the pollution itself, or microorganisms contained therein, contributed to Mr. True's CAD.
The medical experts in this case are unanimous in stating that diagnosing CAD requires a multifactoral analysis, and therefore no single factor can be marked as the cause of the disease. (Dr. Frazier Dep. at 52-54; Dr. Jobe Dep. at 15-16; Dr. Maradiaga Dep. at 24, 87-89). The experts noted that recent research indicates a possible link between stress and CAD (Dr. Maradiaga Dep. at 103-4, 110-11). This evidence passes the threshold for admissibility of scientific evidence underDaubert v. Merrell Dow, 509 U.S. 579 (1993), but the theory appears embryonic. Nevertheless, Mr. True's internal medicine physician, Dr. Maradiaga, believed that the stress/ CAD link had been accepted and noted that stress "increased the risk of CAD" and contributed to hypertension, which is a "major risk factor" of CAD (Dr. M at 103-104, 110-111).
Mr. True's cardiologist recalled reading of such research in only one journal, and he described the stress/ CAD link as a premise, not an accepted factor. (Dr. Jobe Dep. at 32). Two of Mr. True's physicians specified that persons with a specific personality ("hyperactive Type A personality") are more susceptible to CAD (Dr. Frazier Dep. at 52-53; Dr. M at 104), while Dr. Jobe did not mention personality as part of the stress/ CAD link.
It should be noted the stress "risk factor" which Mr. True claims caused his CAD did not operate in a risk-free vacuum. Doctors identified several prominent risk factors for CAD present in Mr. True, including his habit of smoking cigarettes for fifteen years and high blood pressure (Dr. Jobe Dep. at 21-22, 106; Dr. Maradiaga Dep. at 19-20; 24-Dr. Frazier Dep. at 52).
Plaintiffs contend that under North Carolina law they must show only that Defendant's acts or omissions, and the resulting stress to Mr. True, constituted a proximate cause of Mr. True's CAD. In North Carolina, "[a] defendant's negligence need not be the sole proximate cause of plaintiff's injury, so long as his negligence was one of the proximate causes of the injury." Simmons v. North Carolina Dept. of Transportation, 128 N.C. App. 402, 408, 496 S.E.2d 790, 794 (1998) (emphasis omitted); see also Mashburn v. Hendrick, 63 N.C. App. 454, 459, 305 S.E.2d 61, 64 (1983). For Defendants to be liable for Plaintiff's injuries, "the defendant's negligence must have been a substantial factor, that is, the proximate cause of the particular injuries for which plaintiff seeks recovery." Gillikin v. Burbage, 263 N.C. 317, 324 139 S.E.2d 753, 759 (1965) (emphasis in original) (citations omitted).
However, the Fourth Circuit "probability" standard for causation evidence governs in this case. In Crinkley v. Holiday Inns, 844 F.2d 156, 163-5 n. 2 (4th Cir. 1988), the Fourth Circuit summarized and applied North Carolina law on proximate cause (and the related "thin skull" doctrine), but still used the "probability" standard to evaluate expert testimony as to the causes of plaintiff's post-traumatic stress disorder and heart attack. Although North Carolina law applies to the substance of Plaintiff's claims for personal injuries, "whether there is sufficient evidence to create a jury issue of those essential substantive elements of the action, as defined by state law, is controlled by federal rules." Fitzgerald v. Manning, 679 F.2d 341, 346 (4th Cir. 1982) (citations omitted). Plaintiffs are therefore required to produce evidence from which a jury could infer that Defendants' acts or omissions "probably" — not possibly — caused Mr. True's CAD. See Sakaria v. Trans World Airlines, 8 F.3d 164, 172-3 (4th Cir. 1993).
To the extent Plaintiff claims North Carolina law on multiple causes differs from Fourth Circuit law, the undersigned notes that North Carolina courts have applied a similar "probability" standard in cases involving medical conditions with multiple possible causes. See Lee v. Stevens, 251 N.C. 429, 111 S.E.2d 623 (1959) (disallowing portions of jury verdict for cerebral hemorrhage where possible causes including weak blood vessels and hardened arteries, and where plaintiff's expert witness testified only as to the "possibility" that a car accident caused hemorrhage); Peeler v. Piedmont Elastic, Inc., ___ N.C. App. ___, 514 S.E.2d 108, 112 (1999) (reversing award of damages for employee's pulmonary condition as to post-surgical complications when medical testimony showed only that it was "`possible' that the continuing problems were caused by the surgery"); Hinson v. National Starch Chemical Corp., 99 N.C. App. 198, 392 S.E.2d 657 (1990) (upholding directed verdict where medical testimony as to "possibility" raised "nothing more than speculation as to whether plaintiff's exposure to acetic acid alone caused her respiratory impairment, or combined with her cigarette smoking and occupational cotton dust exposure to cause the impairment.").
Plaintiffs proffer several cases from other states which they claim hold that evidence of stress as a "risk factor" for CAD is all that is required to allow a jury award. These cases are, of course, not binding precedent, and can be readily distinguished. However, they illustrate some consensus on the need for "probability" evidence in cases involving heart attacks and CAD. In McClendon v. Keith Hutchinson Logging, 702 So.2d 1164, 1165-6 (La.App. 1997), the court upheld a worker's compensation award after noting that plaintiff's physician testified that unusual physical exertion at work likely precipitated the plaintiff's heart attack. See also Cunningham v. Conrad, 1999 WL 194458, *2 (Ohio App. Mar. 31, 1999) (noting that trial court could reasonably have awarded worker's compensation when testimony included doctor's statement that "I don't think there's any question that the firefighting experiences of Mr. Cunningham were a significant cause of his cardiovascular disease and his death.") In Montgomery County v. Pirrone, 109 Md.App. 201, 674 A.2d 98 (1996), the court specifically stated that a statutory presumption in favor of paying compensation to firefighters who suffered heart attacks compelled it to award damages regardless of questionable causation evidence. "While it may be true that the stress of being a fire fighter/ paramedic neither causes or leads to coronary artery disease or heart disease, the legislature has determined otherwise." 109 Md.App. at 216, 674 A.2d at 105. See also City of Richmond Fire and Emergency Services v. Shuler, 1997 WL 30833 (Va.App. Jan. 28, 1997) (upholding worker's compensation award to firefighter with CAD after applying similar statutory presumption). No such presumption exists here, so "probability" is the appropriate standard for causation evidence.
Finally, Plaintiffs contend that the Fourth Circuit has adopted a lower threshold for causation evidence in pollution cases. Plaintiffs rely onCarroll v. Litton Systems, Inc., 47 F.3d 1164 (table), 1995 WL 56862 (4th Cir. 1995), an unpublished opinion in which the majority held that evidence that plaintiffs were exposed to a chemical from defendants' plant, and that this chemical was "known to cause" the plaintiffs' symptoms, was sufficient to reach the jury on the issue of causation. However, the Court finds this argument unpersuasive for two reasons. First, Carroll is an unpublished opinion, and citation of such opinions as precedent absent unusual circumstances is disfavored. See U.S. Court of Appeals for the Fourth Circuit, Rule 36(c). This Court is reluctant to view an unpublished opinion as a precedential change in well-established causation law, particularly when one judge cited Sakaria and other opinions in dissenting on the causation issue. See Carroll, 1995 WL 56862, *9 (opinion of Williams, J.). Second, the evidence in Carroll connected chemicals directly to physical symptoms, while this case involves stress (resulting from the presence of pollutants) and not chemicals themselves as the alleged cause of Plaintiff's CAD. Consequently, this Court declines to adopt a lower threshold than "probability" for evidence of causation.
Of course, it is not this Court's duty to decide whether Mr. True's CAD was "probably" caused by stress from Defendants' discharge of pollutants; instead, the Court must decide whether a reasonable jury could find Defendant's acts were probably the cause. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-2 (4th Cir. 1982). At this stage, the Court considers the evidence under the light most favorable to the Plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court notes that medical testimony indicates that stress is a "risk factor" for CAD (Dr. Jobe Dep. at 15-16, cf. 29-31; Dr. Frazier Dep. at 96-7), and is linked to hypertension, which is a major "risk factor." (Dr. Maradiaga Dep. at 88, 111). Dr. Maradiaga noted that each risk factor increased the chances of an individual developing CAD. (Dr. Maradiaga Dep. at 88-9).
Accordingly, the Court concludes that it is proper to allow Plaintiffs to present evidence as to Defendant's CAD. If the evidence presented does not reach the required legal threshold, then the proper remedies are, as noted above, a motion for directed verdict as to unproven damages or for a remittitur if the jury unreasonably fails to consider other causes of Mr. True's CAD. See Bailey v. County of Georgetown, 94 F.3d 152, 157 (4th Cir. 1996) ("A motion for a directed verdict may be defeated, and an issue submitted to the jury, only when that issue is supported by substantial evidence which shows a probability and not a mere possibility of proof.") (citation and internal quotation omitted); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998) (noting that a new trial must be ordered or remittitur awarded if trial court determines damages are excessive).
VII. Conclusion
In sum, Defendants' Motion for Partial Summary Judgment is DENIED. Plaintiffs may present evidence relating to Mr. True's recent treatment for depression and coronary artery disease at trial. The clerk is directed to continue management of this case in its entirety.