                                    United States Court of Appeals,

                                               Fifth Circuit.

                                         Nos. 91-1934, 91-1996.

                                  James BERRY, Sr., et al., Plaintiffs,

                              James Berry, Sr., et al., Plaintiffs-Appellants,

                                                     v.

                   The ARMSTRONG RUBBER COMPANY, Defendant-Appellee.

                            J. Wesley COOPER, et al., Plaintiffs-Appellants,

                                                     v.

                   The ARMSTRONG RUBBER COMPANY, Defendant-Appellee.

                                              May 3, 1993.

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

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and ROSENTHAL, District
Judge.**

          ROSENTHALDistrict Judge:

1. Background

          This is a consolidated appeal from a grant of summary judgment in favor of defendant

Armstrong Rubber Company ("Armstrong") in two separate suits. Armstrong operated a tire

manufacturing plant in Natchez, Mississippi, from 1937 through 1987, when it sold the plant.

Plaintiffs are individuals who live in Natchez, Mississippi. It is undisputed that from 1937 through

the 1970s, Armstrong "dumped" waste materials from this plant into various sites around the Natchez

area. It is also undisputed that several of these sites are located near the areas in which plaintiffs live.

Plaintiffs claim that this dumping left hazardous chemicals on their land and in their groundwater.

Armstrong denies the presence of any harmful level of hazardous materials on plaintiffs' land or in

their water.

          In 1988, plaintiffs sued Armstrong in two separate cases, James Berry, et al. v. Armstrong


   *
       District Judge of the Southern District of Texas, sitting by designation.
Rubber Co., Civ.A. No. J88-0653(B), U.S. District Court, S.D. Miss., Jackson Division, and J.

Wesley Cooper, et al. v. Armstrong Rubber Co., Civ.A. No. J88-0464(L), U.S. District Court, S.D.

Miss., Jackson Division, alleging a right to recovery under the Comprehensive Environmental

Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601-9675, and under

Mississippi state law causes of action for nuisance, trespass, personal injury, strict liability, negligence,

and property damage.1 After almost two years of discovery, the district court dismissed plaintiffs'

claims, holding that plaintiffs had not produced sufficient evidence that hazardous substances were

present or that such substances caused any injuries. 780 F.Supp. 1097. We affirm the rulings of the

trial court.

2. Standard of Review

         This court reviews the grant of summary judgment de novo, applying the same Rule 56

standards employed by the district court. See Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th

Cir.1991). Evident iary rulings are reviewed under a manifest error standard. Christophersen v.

Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991), cert. denied --- U.S. ----, 112 S.Ct. 1280,

117 L.Ed.2d 506 (1992); Viterbo v. Dow Chem. Co., 826 F.2d 420 (5th Cir.1987). If the district

court's ruling depended on the admissibility of certain evidence, appellate review is a two-tiered

process. First, we review the evidentiary rulings under the manifest error standard, then review the

trial court's summary judgment decision de novo. Christophersen v. Allied-Signal Corp., 939 F.2d

1106, 1109.

         In granting a motion for summary judgment, the district court is not to weigh the evidence

or make credibility choices. Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 223 (5th

Cir.1991). This does not mean, however, that the existence of any factual dispute will foreclose

summary judgment. The dispute must be genuine, with facts on both sides of a material issue, before


   1
    The Berry lawsuit initially included claims under other federal environmental acts and state
common law nuisance claims. On May 17, 1989, the district court dismissed plaintiffs' statutory
claims under the federal environmental acts and plaintiffs' state common law nuisance claims.
Plaintiffs do not appeal the dismissal of the statutory claims under federal environmental acts.
The district court granted Armstrong's second motion for summary judgment on July 30, 1989,
dismissing all claims.
a court must submit it to a jury. See Lewis v. Glendel Drilling Co., 898 F.2d 1083, 1088 (5th

Cir.1990).

        The trial court held that much of plaintiffs' expert testimony lacked sufficient probative value

under Rule 703 of the Federal Rules of Evidence to overcome summary judgment for Armstrong.

Viterbo v. Dow Chem. Co., 826 F.2d at 422. Rule 703 does not "make summary judgment impossible

whenever a party has produced an expert to support its opinion." Viterbo v. Dow Chemical Co., 826

F.2d at 422 (quoting Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C.Cir.1977)). If

the basis for the expert's opinion is so unreliable that no reasonable expert could base an opinion on

that data, the opinion may be excluded in the district court's determination of whether there is a

genuine issue regarding an essential element of the claim. Viterbo v. Dow Chemical Co., 826 F.2d

at 422; see also Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 225 (5th Cir.1991);

Christophersen v. Allied-Signal Corp., 939 F.2d at 1113-14.

        We conclude that the district court correctly granted defendant's summary judgment motion.

Because the evidence presented by the Berry and the Cooper plaintiffs is in some respects distinct,

we analyze the issues of proof as to each case separately.

3. Berry

        Plaintiffs James Berry, Sr., James Berry, Jr., Dwight Berry, and Tangela Berry, live at 103

Downing Rd. in the Mayfair Subdivision in Natchez. Plaintiffs Charles and Bessie Prater live across

the street at 102 Downing Rd. These plaintiffs, the "Berry plaintiffs," claim that their homes rest on

top of and/or near fill material containing toxic wastes left by Armstrong, and that their health and

property values have suffered as a result.

        It is undisputed that these plaintiffs' lots have never been tested to determine whether any

toxic chemicals are present. Plaintiffs admit that there is no test data of soil or water taken from their

lots. Plaintiffs instead relied on expert testimony to provide circumstantial evidence of the presence

of hazardous substances in a quantity sufficient to cause the alleged harm.

        One of plaintiffs' experts, Dr. Ralph Pike, a chemical engineer, reviewed tests of soil samples

by the Mississippi Bureau of Pollution Control (BPC) and the United States Environmental Protection
Agency (EPA). These samples were taken from lots along Hampton Court, approximately one-half

mile northwest of the Mayfair subdivision. Dr. Pike reviewed these samples and stated in an affidavit

that it was "mo re probable than not" that the chemicals found in the Hampton Court area were

produced by the "tire manufacturing industry in Natchez, Mississippi," and that it was "more probable

than not" that some of the chemicals were hazardous and/or toxic materials. (Vol. III, p. 569).

        Dr. Pike admitted that he did no t know where Mayfair was, whether any testing had been

done there, or where plaintiffs lived. (Vol. III., p. 632-33). It is undisputed that he relied on data

from tests he did not do, of soil taken from property not involved in this case. It is also undisputed

that based on these same tests, the BPC concluded that "there was no imminent threat to the public

health or the environment and that no type of emergency response action was warranted." (Vol. IV,

p. 1135).

        Dr. Pike also reviewed t ests by the Mississippi Office of Pollution Control (OPC), the

successor to the BPC, in the Hampton Court, George F. West Boulevard, and Mayfair areas. Soil

vapor samples taken at two lots in Mayfair, neither of which belonged to plaintiffs, indicated the

presence of trace amounts of hydrogen sulfide. (Vol. IV, pp. 116-17). One sample taken from a lot

located a quarter mile northwest of Mayfair showed a hydrogen sulfide concentration over 200 times

greater than that found in Mayfair. The OPC found that this was due to a gas pipeline leak and the

presence of sewer and store drains. (Vol. IV, p. 1141). The OPC concluded that "the site does not

pose any significant risk to the public health or the environment." (Vol. IV, p. 1143). Dr. Pike stated

by affidavit that the hydrogen sulfide could be a by-product of the tire manufacturing waste stream.

(Vol. IV, p. 1123). He did not, however, dispute the OPC's conclusion that no threat to health or

the environment was present in the area.

        Plaintiffs also relied on the expert testimony of Wilma A. Subra, a chemist, who concluded

that it was "more probable than not" that hazardous components of Armstrong's waste stream were

deposited in the land fills on which plaintiffs' homes were built. (Vol. III, p. 810-12). Like Dr. Pike,

Ms. Subra did not conduct any chemical analyses of soil samples from plaintiffs' home sites. Unlike

Dr. Pike, she did not even base her conclusions on any chemical analysis or testing performed by a
third party. (Vol. III, p. 653-54). Instead, she relied solely on physical observations of waste at a

site unrelated to this case, with no chemical analysis of the waste to determine whether it was toxic.

Id.

        Beyond the opinions of their experts, there is little in the summary judgment record to

evidence the presence of hazardous wastes on plaintiffs' land. Plaintiff James Berry stated in his

deposition that he saw "rubber and stuff" dug up from his back yard. (Vol. III, p. 607) Plaintiffs point

to the testimony of various witnesses that they either participated in or saw Armstrong dumping tires

and barrels in the "general area" of plaintiffs' homes some 30 to 40 years earlier. Based on such

evidence, plaintiffs and their experts "surmise" that wherever Armstrong disposed of tires, it

"probably" also disposed of toxic chemicals. Because tires and barrels were removed from James

Berry's lot, plaintiffs asked the district court to infer that chemicals from the Armstrong plant were

also present on plaintiffs' lots. (Vol. III, pp. 810-12).

        The plaintiffs' property damage claim was based on the testimony of William Douglas

Upchurch, a real estate expert. He stated that in the Natchez real estate market, the plaintiffs'

properties were perceived to be contaminated by toxic wastes, and concluded that a negative market

stigma significantly reduced the market values of plaintiffs' properties. (Vol. III, p. 661-69).

However, this testimony provided no evidence that toxic or hazardous wastes were present on

plaintiffs' property.

4. Cooper

        The "Cooper plaintiffs," Wesley Cooper, his wife, Margaret Cooper, and his mother, Estelle

Cooper, live on property located two-thirds of a mile south-southeast from a waste disposal site that

Armstrong used from 1939 to the early 1970s. This site, known as the "Cain site," is separated from

the Cooper property by another tract of land. Plaintiffs Warren Benson and his wife, Leslie Mae

Benson, live on property across a public road from the Coopers.

        Wesley Cooper claims that hazardo us materials from the Cain site have contaminated his

private well water and resulted in his stomach cancer. He also claims damages from a reduction in

the value of his property. The Bensons do not own the property on which they live, but claim they
have suffered personal injury due to exposure to the Cain site.

        Plaintiff James Carter lives on and owns property known as the "Carter site." This is next to

the "Batieste site," where Armstrong sought and paid for permission to dump wastes. Carter

acknowledges that he gave Armstrong permission to dump tires on his property, for which Armstrong

paid. However, Carter claims that Armstrong also dumped barrels containing toxic chemicals without

his knowledge, and that this dumping reduced the value of his land.

        The summary judgment record contains the results of numerous tests performed by state and

federal agencies. These tests found no evidence that the Cain, Batieste, and Carter sites contaminated

the adjacent properties, property owned by plaintiffs. The investigation of the Cain site began on

November 6, 1986. Following initial testing, the United States EPA Region Four Technical

Assistance Team (TAT) took samples at the Cain and Carter sites. On July 11, 1987, an EPA

representative advised the State Bureau of Pollution Control that the sampling indicated no

contaminants that "approach a level of concern." The U.S. Agency for Toxic Substances and Disease

Registry analyzed the same data and concluded that the ground water posed no public health threat.

        On October 17, 1988, the chief of the Hazardous Waste Division of the BPC stated as

follows:

        As indicated by the ongoing investigation and the outstanding orders, the BPC is of the
        opinion that the Armstrong sites warrant further investigation, but the data collected and
        analyzed to date indicates that there is no imminent threat to human health at these sites.

(Vol. 1, R. 0045)

        On July 20, 1989, a representative of the Hazardous Waste Division of Mississippi

Department of Environmental Quality (DEQ), wrote to each private well owner in the area advising

that the water was safe to drink and that the chemicals identified in water were "naturally occurring"

and within normal levels. Studies of the Cain site continued. (Vol. 1, R. 38-346; Vol. 7, R. 2509-

2530). As of November 3, 1990, the Fidelity Tire Company, which purchased the Armstrong plant

in 1987, had installed eight monitoring wells at these sites, taken over fifteen soil samples, over fifty

soil borings, and over forty groundwater samples, at a cost of $520,000. (Vol. 7, R. 2506-2531;

Vol. 1, R. 38-346).
        Plaintiffs produced no direct evidence that Armstrong dumped any wastes on the Cooper or

Benson land. Their only basis for alleging that hazardous chemicals were present on their land was

that chemicals were dumped in other sites, travelled into the groundwater, and contaminated plaintiffs'

soil and well water. (Vol. VI, p. 2189). Plaintiffs' expert, Dr. Nolan Aughenbaugh, a professor of

geotechnical engineering, stated that certain unusual geologic conditions could exist which could

allow the migration of toxic chemicals to plaintiffs' land. His conclusion was not based on any studies

done on plaintiffs' land.

        The district court found that Dr. Aughenbaugh's testimony was in the area of geochemistry

or hydrogeology, which require the use of models to determine the movement of water-borne

substances. (Vol. X, p. 4139-4140). Dr. Aughenbaugh had no expertise or credentials in that area

and admitted that he did not know how to use such models. (Vol. 6, p. 2309). The district court

noted that the experts from the state and federal agencies who did perform tests concluded that the

groundwater under the Armstrong dumpsites flowed northwest, toward the Mississippi River and

away from plaintiffs' land. (Vol. X, p. 4143-44). The district court rejected Dr. Aughenbaugh's

contrary "speculations" under Rule 703, holding them insufficient to create a genuine issue of fact.

(Vol. X, p. 4140).

        Dr. Aughenbaugh's testimony provided the only basis for Dr. William George, a toxicologist,

and Dr. Lawrence Miller, a medical doctor, t o form their opinions. They testified that a causal

relationship could exist between exposure to well water and Wesley Cooper's cancer. However, Dr.

George agreed with defendant's experts that the chemicals found in Wesley Cooper's well were at

such low levels that they posed no health threat. (Vol. 6, R. 2377-80).

        Ms. Subra offered the same opinion as she offered in Berry, with the same lack of analysis that

the district court found disqualifying in Berry. William Upchurch also offered his expert opinion as

a real estate appraiser on the effect of the perception that toxic substances were present on the

Cooper and Carter properties.

5. Admissibility of Expert Testimony

        In both Berry and Cooper, plaintiffs attempted to use expert testimony to raise an inference
that contaminating wastes were present on the plaintiffs' properties. The district court rejected the

expert opinions under Rule 703. (Vol. IV p. 1163; A.R.E. 4). This court fi nds that the district

court's evidentiary rulings were not manifestly erroneous.

       As this court noted in Christophersen v. Allied Chemical Corp., 939 F.2d 1106, 1110 (5th

Cir.1991) (en banc ):

       The Federal Rules of Evidence, combined with Frye v. United States, 293 F. 1013
       (D.C.Cir.1923), provide a framework for trial judges struggling with proffered expert
       testimony. The signals are not neatly cabined categories, and we disentangle them only to
       accent the independent significance of each.

                (1) Whether the witness is qualified to express an expert opinion, Fed.R.Evid. 702;

                (2) whether the facts upon which the expert relies are the same type as are relied upon
                       by other experts in the field, Fed.R.Evid. 703;

                (3) whether in reaching his conclusion the expert used a well-founded methodology,
                       Frye; and

                (4) assuming the expert's testimony has passed Rules 702 and 703, and the Frye test,
                        whether under Fed.R.Evid. 403 the testimony's potential for unfair prejudice
                        substantially outweighs its probative value.

939 F.2d at 1110.

       Plaintiffs offered the deposition and/or affidavit testimony of five expert witnesses: Dr. Ralph

Pike, a chemical engineer; Dr. William George, a toxicologist; Dr. Lawrence Miller, a medical

doctor; Dr. Nolan Aughenbaugh, a professor of geotechnical engineering; Wilma Subra, an

analytical chemist; and William Upchurch, a real estate appraiser. Armstrong did not challenge the

Rule 702 qualifications of these expert witnesses to testify in their specified areas of expertise.

Armstrong argued that Dr. Aughenbaugh, Dr. George, and Ms. Subra stepped outside of their areas

of expertise. Armstrong also argued that all these experts relied upon improper "facts" of a sort not

relied upon by experts in their field and failed to use an accepted methodology, in violation of Rule

703 and Frye.

       The court correctly noted that Dr. Pike's opinions were not based on tests he performed, or

even tests of the properties at issue. Ms. Subra's conclusions were not based on her own expert area

of chemical analysis, and were not based on tests of the plaintiffs' properties. Dr. Aughenbaugh

testified as a geochemist or hydrogeologist, areas in which he was not qualified, using data and
methodology not recognized by experts in those fields. Dr. George and Dr. Miller relied on the work

by these experts to form their opinions as to medical causation. Dr. Miller also reached conclusions

that the district court found to be unsupported by accepted methodology. The district court did not

commit manifest error in ruling that these experts' opinions were insufficient to overcome summary

judgment. See Brock v. Merrell Dow Pharmaceutical, Inc., 874 F.2d 307, 312-13 (5th Cir.1989),

cert. denied 494 U.S. 1046, 110 S.Ct. 1511, 108 L.Ed.2d 646 (1990).

6. Personal Injury Claims

         Only one plaintiff, Wesley Cooper, alleged that he had a specific physical problem resulting

from drinking well water polluted from Armstrong dump sites.2 The summary judgment evidence

failed to show harmful levels of any toxic or hazardous substance in the well water. Plaintiffs

presented no evidence beyond conclusory allegations that Armstrong caused dangerous levels of any

chemical or substance in plaintiffs' groundwater.

        Plaintiffs' own expert, Dr. George, acknowledged that exposure to chemicals at the levels

found in the Cooper well were too low to cause cancer. (Vol. X, p. 4138). Dr. Miller, plaintiffs'

expert physician, agreed that the chemicals found would have to be present in much higher levels to

cause stomach cancer. We affirm the district court's ruling that Dr. Aughenbaugh's conclusions are

insufficient to create a fact issue as to the presence of toxins on plaintiffs' land. Viterbo, 826 F.2d at

422. Dr. George and Dr. Miller's conclusions depended on Dr. Aughenbaugh's testimony. The

medical experts also found an inadequate level of chemicals in Cooper's well to cause his cancer and

is similarly insufficient to create a fact issue.

        Dr. Miller stated that the chemicals would have to be significantly above the background

levels revealed in the soil and water testing to cause cancer. (Vol. 6, R. 2390). Dr. George offered

similar testimony. (Vol. 6, R. 2377-80). We affirm the district court's grant of summary judgment.

7. CERCLA

        A plaintiff must show four elements to establish a claim for relief under CERCLA; 42 U.S.C.

   2
    Only the Cooper plaintiffs appeal the district court's grant of summary judgment as to their
personal injury claims. The Berry claimants do not appeal on this issue. (Appellant's Reply Brief
at 1).
§§ 9601-9675:

        1. the site in question is a "facility";

        2. the defendant is a responsible person;

        3. a "release" or "threatened release" of a "hazardous substance" occurred; and

        4. the "release" or "threatened release" has caused the plaintiff to incur response costs.

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989).

        The district court dismissed the plaintiffs' CERCLA claims because, despite almost two years

of discovery, plaintiffs failed sufficiently to prove the presence of any hazardous substances on their

property to withstand summary judgment. A site cannot be a facility unless a hazardous substance

has been "deposited, stored, disposed of, or placed, or otherwise came to be located ..." at the site.

Amoco, 889 F.2d at 668, n. 4. As a matter of law, plaintiffs cannot meet the first requirement of a

CERCLA claim. In both Berry and Cooper, plaintiffs failed to provide evidence of tests performed

on plaintiffs' properties that showed particularized findings that hazardous or toxic substances were

present. The district court's summary judgment dismissing plaintiffs' CERCLA claim is therefore

affirmed.

8. Mississippi Trespass and Nuisance Claims

        Plaintiffs point to Phillips v. Davis Timber Co., Inc., 468 So.2d 72 (Miss.1985), to support

their common law nuisance and trespass claims. In that case, the Mississippi Supreme Court held that

a plaintiff could state a claim for nuisance even if the levels of toxins found on the land did not reach

dangerous levels. However, a plaintiff must present evidence of an invasion by defendant in order

to withstand summary judgment. Phillips, 468 So.2d 72, 79. The Cooper and Berry plaintiffs failed

to show such evidence of an "invasion" by Armstrong to withstand summary judgment.

        A cause of action for public nuisance is predicated on a showing that the defendant's activities

have injured a public right. See Comet Delta, Inc. v. Pate Stevedore Co. of Pascagoula, Inc., 521

So.2d 857, 860 (Miss.1988). The summary judgment record of testing by many agencies and

organizations showed no threat to human health. Plaintiffs presented no evidence of test results

showing a level of pollutants on plaintiffs' property that could endanger the public. The summary
judgment dismissing the nuisance claim is affirmed.

                                           Property Damage

         Plaintiffs' expert appraiser, William Upchurch, contended that the stigma attached to

plaintiffs' property had significantly reduced its value. The district court concluded that even if this

expert testimony was accepted as true, plaintiffs could not recover under Mississippi law for reduced

market value caused by a "stigma" absent some physical damage to plaintiffs' land caused by the

defendant.

        Plaintiffs point to two Mississippi cases to support the claim that a decrease in market value

caused by a "stigma" is compensable. See Phillips v. Davis Timber Co., 468 So.2d 72, 78

(Miss.1985); Bynum v. Mandrel Ind., Inc., 241 So.2d 629, 633 (Miss.1970). In both these cases,

the defendant physically damaged the plaintiff's property. Plaintiffs have cited no case, and the court

has found none, holding that Mississippi common law allows recovery for a decrease in property

value caused by a public perception without accompanying physical harm to the property. The

district court's dismissal of the state law property claims is affirmed.

                                           CONCLUSION

        Despite two years of discovery, plaintiffs failed to provide the district court with sufficient

admissible evidence that pollutants were on plaintiffs' land or in their groundwater to establish a

genuine issue of material fact. Plaintiffs' conclusory, unsupported allegations are insufficient to avoid

summary judgment. The opinion of the district court is

        AFFIRMED.
