The plaintiffs in Lozar, et al. v. Birds Eye Foods, Inc. ( Case No. 12-1945) took another hit on June 27, 2013, when the US Court of Appeals for the Sixth Circuit confirmed the granting of defendant Birds Eye Foods, Inc.’s (BEF) motion for summary judgment based on plaintiffs’ failure to demonstrate causation.  Noting that there must not be “‘too great an analytical gap’ between the expert’s conclusion…and the data that allegedly supports it,” the Sixth Circuit found plaintiffs’ experts’ opinions on the impacts of groundwater contamination unreliable.

BEF disposed of wastewater containing organic matter from fruit by spraying it on fields.  BEF notified plaintiffs in 2008 that groundwater under BEF’s fields contained slight elevations of naturally occurring compounds, including iron, manganese, and arsenic.  Plaintiffs sued BEF in 2009 in a variety of personal injury and property damage claims.  The plaintiffs initially numbered around 60, but the number was whittled down through dismissals after certain plaintiffs failed to respond to questionnaires and others failed to provide medical opinions supporting certain personal injury claims.  The claims in the matter were further reduced when the District Court granted BEF’s motions for summary judgment with respect to a number of personal injury and property damage claims for lack of causation.

This appeal considered the remaining claims for damage to plumbing fixtures, lost property market value, and emotional distress allegedly arising from contaminated groundwater caused by BEF.  The Sixth Circuit dispensed with one claim in the appeal because (1) plaintiffs’ expert stated only that downgradient homes “could be” affected by the groundwater contamination, rather than that the homes “more likely than not, were in fact affected;” (2)  iron levels did not exceed drinking water standards; and (3) there was otherwise no evidence that iron could have caused property damage or lost market value.

With respect to lost market value claims, plaintiffs’ expert concluded values of homes downgradient from BEF declined 45% between 2007 and 2010, with over half of the decline due to the stigma of contamination.  However, the expert’s own data showed that other homes in the area not affected by the stigma of contamination declined by more than 45% suggesting that other factors were at issue other than the purported contamination (like market decline).  The Sixth Circuit also irrelevant the fact that downgradient homes were on the market for an average of 28 days longer than homes outside the area.

The remaining plaintiffs also alleged property damage and lost market value, as well as emotional distress, because of their downgradient location.  However, plaintiffs’ expert initially agreed that BEF’s map showing plaintiffs’ properties outside the contamination plume was “reasonably accurate.” However, the expert then updated his analysis, stating “it was not unreasonable to conclude that” the contamination actually extended past the boundary on BEF’s map.   Given the newly contrived inconsistency, the Sixth Circuit concluded that this expert’s opinion was not sufficient to survive summary judgment.

The Sixth Circuit closely reviewed expert testimony and factual allegations, ruling in favor of BEF .  The long history of opinions in the case showed the District Court’s periodic frustrations with the plaintiffs, which may have been evident to the Circuit Court and helped BEF’s success.  Regardless, this case shows the importance of closely analyzing and, if appropriate, challenging expert opinions, and may prove helpful in future cases.