Bolstering the defense view that competent expert testimony is typically required to prove causation in toxic tort actions, the U.S. Court of Appeals for the Sixth Circuit granted summary judgment dismissing property owners’ claims that the Defendant paper mill’s effluent interfered with their right to use and enjoy property. See Freeman v. Blue Ridge Paper Prods., No. 12-6259 (6th Cir. July 9, 2013), available at www.bdlaw.com/assets/attachments/freemanvblueridgepaper.pdf . The court affirmed a district court’s ruling that lay testimony of causation was insufficient to survive summary judgment in this case. Freeman, slip op., at 9-11.

Plaintiffs were a class of 300 real property owners whose property is located along a river approximately 26 miles downstream from Defendant’s paper mill. Id. at 2. Plaintiffs brought a nuisance action, claiming that the Defendant's activities made the river discolored and caused a foul odor, which has caused them to experience fear, stress, annoyance and anxiety. Id. On appeal, Plaintiffs argued that expert testimony was not required because the river was only discolored and foul-smelling downstream of the Defendant’s paper mill and longtime residents “insist the river never exhibited a foul color, odor or foam” previously. Id. at 9. The court rejected this argument, finding that lay testimony is insufficient based on the distance involved and because of the difficulties determining how the effluent interacted with the river. Id. at 9-11.

In the alternative, Plaintiffs argued expert testimony that their fears and anxieties about the river’s water quality were sufficient to demonstrate a nuisance under the Restatement (Second) of Torts. Id.at 11-12. However, the court found persuasive that Plaintiffs presented no authority to suggest North Carolina would allow nuisance recovery based on fear or anxiety without any “scientifically verifiable evidence” of health risks. Id. at 11-15. Notably, the court did not go as far as to “declare that scientifically verifiable evidence is in fact required” to prove fear and anxiety based nuisance claims in every case. Id.