Cunningham v. Masterwear Corporation

Jun 23, 2009

OUTCOME: District Court affirmed on appeal.

Plaintiffs appealed from the dismissal, on the defendant’s motion for summary judgment, of a suit for common law nuisance. They sought damages both for the damage to their health and for what they co ... ntended was the depressed price at which they were forced to sell their property because of its contamination. The district court granted summary judgment for the defendants after disqualifying the plaintiffs’ expert medical witness under Fed. R. Evid. 702 and ruling that the hearsay rule barred the plaintiffs from testifying about the valuation of their property by appraisers. Dr. Houser, plaintiffs medical expert, was not a toxicologist and did not present, either directly or by citation to a scientific literature, a theory that would link the level and duration of the exposure of plaintiffs to PCE to their symptoms. Houser presented no evidence from which a trier of fact could infer that the plaintiffs exposure to PCE was likely to have contributed significantly (or for that matter at all) to their ailments. The alleged impairment of the value of the plaintiffs’ property presented a separate issue—contamination can reduce property values without endangering anybody’s health. Nevertheless, like the health issue, causation turned out to be the plaintiffs’ Achilles heel. Cunningham could not offer a responsible opinion about the cause of a change in the value of his property. Judge Posner concluded by saying “In short, they failed to prove either personal injury or property damage, and the district court was therefore right to dismiss the case.”