IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00595-SCT

GEORGE ANGLADO, JR., GLORIA ANGLADO,

JAMES E. BAILEY, JR., BILLIE JEAN BAILEY,

EMMETT B. BONEWITZ, MARTHA L. BONEWITZ,

HENRY DAVIS, EVELYN DAVIS, CATHERINE

SUZANNE DRUMMOND, JOHN R. FAYARD, JR.,

JOHN R. FAYARD, SR., ALICE FERRILL, HARL

HICKS, BERT D.J. LANDRY, BOYCE LANDRY,

DORIS LANDRY, MONA LISA LANDRY, JERRY LEE,

WILLIAM F. McDONNELL, JR., WILLIAM MOORE,

LULA MOORE, JOYCE MUSE, ANDREW J.

OVERMEYER, BERNICE B. OVERMEYER, CARL

PREHODA, LINDA PREHODA, ROBERT G.

RANDOLPH, JOANN T. RANDOLPH, FRANCIS W.

TOON, NORMA K. TOON, BARNEY J. VARNADO,

MAX T. WALTERS, SR., AND BRENDA L. WALTERS,

DAVID ADRIAN WARREN, AND CATHERINE

RANDELL WEST

v.

LEAF RIVER FOREST PRODUCTS, INC., LEAF

RIVER CORPORATION, GREAT NORTHERN

NEKOOSA CORPORATION, GEORGIA-PACIFIC

CORPORATION, WARREN RICHARDSON AND

ACKER S. SMITH

DATE OF JUDGMENT: 05/03/96

TRIAL JUDGE: HON. JERRY OWEN TERRY SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: ROBERT H. TYLER

JOHN I. DONALDSON

ATTORNEYS FOR APPELLEES: JAMES H. HEIDELBERG

W. WAYNE DRINKWATER, JR.

NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE

DISPOSITION: AFFIRMED - 6/4/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/25/98
EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. The defendants in the case below were granted judgment on the pleadings and summary judgment

by the circuit court. The plaintiffs appeal the summary judgment portion of that ruling. We conclude

that a supporting affidavit which was not submitted with the defendants' first summary judgment

motion was nevertheless properly submitted in their second motion. Moreover, in order to establish a

claim for common law trespass or nuisance, the plaintiffs must present sufficient evidence not only

that their properties were exposed to chemicals but also that those chemicals came from the

defendants' pulp mill. Because they failed to show evidence meeting this burden, we affirm the grant

of summary judgment.

I.

¶2. A joint Complaint was filed in this tort action in the First Judicial District of the Circuit Court of

Harrison County, Mississippi, on July 23, 1992. The plaintiffs are thirty-five riparian owners of

twenty-three parcels of land that abut or adjoin Poticaw Bayou and/or the West Pascagoula River in

Jackson County, Mississippi (Anglado Plaintiffs). The named defendants are Leaf River Forest

Products (LRFP), Leaf River Corporation (LRC), Great Northern Nekoosa Corporation (GNNC),

Georgia-Pacific Corporation (Georgia-Pacific), Warren Richardson and Acker Smith (all defendants

collectively referred to as the "Leaf River Defendants").(1) The Leaf River Defendants filed a joint

Answer on August 26, 1992. Since 1984, LRFP has operated a pulp mill on the Leaf River near New

Augusta in Perry County, Mississippi, approximately one hundred river miles upstream from the

Anglado Plaintiffs' properties. The mill processes timber into market pulp and discharges treated

wastewater, known as "effluent," into the Leaf River pursuant to a permit issued by the Mississippi

Department of Environmental Quality (DEQ).(2)

¶3. In their initial joint Complaint, the Anglado Plaintiffs alleged that they and their properties were

exposed to 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) and other chemicals which were discharged

by the mill into the Leaf River. None of the plaintiffs had been diagnosed with any physical disease or

medically cognizable mental illness. Nevertheless, they sought recovery for increased risk of future

disease, for emotional distress arising from a fear of future disease, and for medical monitoring. The

plaintiffs also sought recovery for diminished property values, for loss of use and enjoyment of their

properties, and fraud. They also made claims for punitive damages.

¶4. On December 21, 1993, the Leaf River Defendants filed two separate dispositive motions. One of

the motions sought judgment on the pleadings, or in the alternative for summary judgment, on the

plaintiffs' claims for possible future disease, medical monitoring and emotional distress based on fear

of disease. The other motion sought summary judgment based on the plaintiffs' lack of competent

evidence of exposure. The primary basis of this motion was that the Anglado Plaintiffs could not

maintain their claims without objective proof that their persons or properties had been exposed to

TCDD. Since no such proof of exposure existed, the defendants' asserted that they were entitled to
summary judgment.(3) A hearing on the defendants' motions was scheduled for February 14, 1994.

¶5. On February 1, 1994, the Anglado Plaintiffs were granted a continuance of the hearing on the

defendants' motions. The plaintiffs then engaged Athena Technology, Inc. to collect and analyze

sediment samples from Poticaw Bayou and the Pascagoula River. Athena Technology, in turn,

retained Triangle Laboratories of RTP, Inc. to conduct the analysis of the samples to determine the

presence of dioxin. The test results of these sediment analyses were submitted as an exhibit to the

Plaintiffs' Opposition to Defendants' Motions for Summary Judgment. The plaintiffs also submitted

the affidavit of Dr. Arthur Hume, who reviewed the test results. Dr. Hume testified that the sample

sediments contained varying levels of dioxin, including TCDD, and stated that "use and enjoyment of

the Plaintiffs' properties and the River by any of the Plaintiffs would result in some level of exposure

to dioxin."(4)

¶6. On March 23, 1994, approximately two weeks after the plaintiffs provided the test results and

affidavits in opposition to the defendants' motions for summary judgment, the Leaf River Defendants

served upon plaintiffs' counsel their Reply Brief. Attached to this brief were two new affidavits

executed by Christoffer Rappe and Yves G. Tondeur.(5) Dr. Rappe concluded that the "low levels" of

dioxins identified in the plaintiffs' soil samples are levels that one would expect to find as background

levels in soil in a rural area along a river such as the Pascagoula.

¶7. As an expert on dioxin "fingerprinting" or source identification, Dr. Rappe also testified as to the

source of the dioxin in the Anglado Plaintiffs' soil samples. Based on his study of the effluent data

from the mill, the plaintiffs' test results and underlying data, and the distance of the plaintiffs'

properties from the mill, Dr. Rappe concluded that "the Leaf River Mill is not the source of the low

levels of dioxins and furans found in Plaintiffs' soil samples." Dr. Tondeur, Vice-President of Triangle

Laboratories, also stated in his affidavit that "it is more likely than not that the Mill is not the source

of the dioxins and furans in plaintiffs' samples." (emphasis in original).

¶8. On August 15, 1994, oral arguments at last were heard on the defendants' dispositive motions as

well as a motion by the plaintiffs' to strike the Tondeur affidavit. At the conclusion of the hearing all

motions were taken under advisement by the court. On December 29, 1994, the plaintiffs filed a

motion to submit additional evidence in opposition to the defendants' pending dispositive motions.

This motion sought leave to file additional affidavits contradicting the affidavits of Rappe and

Tondeur. This motion was never ruled upon. Instead, on December 30, 1994, the presiding judge

entered an Order denying the Leaf River Defendants' motions for summary judgment.(6)

¶9. On October 19, 1995, the Mississippi Supreme Court decided Ferguson, 662 So. 2d 648, and on

November 17, 1995, the Leaf River Defendants filed their Second Motion of Defendants for

Judgment on the Pleadings, or, in the Alternative, Summary Judgment. This motion stated that "with

the exception of several recent cases to which defendants would like to draw the Court's attention,

this Motion rests on the same arguments and authorities as the previous motions." The defendants

included with their second summary judgment motion the affidavits of Rappe and Tondeur.

¶10. After obtaining an extension of time, the Anglado Plaintiffs filed their response on December 15,

1995. The plaintiffs conceded that the decision in Ferguson foreclosed recovery for their claims for

increased risk of future disease, emotional distress arising from a fear of future disease, and medical

monitoring. The plaintiffs also conceded that Ferguson foreclosed recovery of punitive damages.
Thus, the plaintiffs' only remaining claims were those for continuing toxic trespass, public and private

nuisance, property damage and fraud.

¶11. On March 1, 1996, oral argument was heard on the defendants' second summary judgment

motion before Judge Jerry O. Terry. During the course of this hearing plaintiffs' counsel argued that

the affidavits of Rappe and Tondeur were not properly before the court because they were not

attached to the original motions for summary judgment filed in December of 1993, but rather had

been "submitted in rebuttal" to the plaintiffs' test results and the affidavit of Dr. Hume. Plaintiffs'

counsel complained that they had never been given a chance to respond to the affidavit of Dr. Rappe,

and requested that the court grant them an opportunity to do so.

¶12. The trial court entered its Judgment and Findings of Fact and Conclusions of Law on May 3,

1996. In light of Ferguson, the court granted judgment on the pleadings on the plaintiffs' personal

injury claims and dismissed those claims with prejudice. The court also dismissed the plaintiffs' claims

for punitive damages. In disposing of the remaining claims, the court found that "Plaintiffs' lack of

legally sufficient proof of exposure and causation entitles the Leaf River Defendants to summary

judgment on all of Plaintiffs' claims." This appeal followed.

II.

¶13. This Court employs a de novo standard in reviewing a grant of summary judgment. Allen v.

Mac Tools, Inc., 671 So. 2d 636, 640 (Miss. 1996); National Farmers Union Property & Cas. Co.

v. First Columbus Nat'l Bank, 669 So. 2d 767, 769 (Miss. 1996); Owen v. Pringle, 621 So. 2d 668,

670 (Miss. 1993). A trial court may grant summary judgment if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See

Miss. R. Civ. P. 56; Roussel v. Robbins, 688 So. 2d 714, 725 (Miss. 1996); Morgan v. City of

Ruleville, 627 So. 2d 275, 277 (Miss. 1993).

III.

¶14. The Anglado Plaintiffs first argue that the affidavit of Dr. Rappe, which was relied upon by the

trial court in granting summary judgment for the defendants, was not properly before the court

"inasmuch as it was not submitted in compliance with Rule 56, which requires that supporting

affidavits be submitted with the motion."(7) The plaintiffs offer no authority for this interpretation of

Rule 56. Even if it were true, however, that affidavits in support of summary judgment must

invariably be submitted with the motion, it is apparent that the Leaf River Defendants did just that.

¶15. The affidavits of Rappe and Tondeur were submitted with the Second Motion of Defendants for

Judgment on the Pleadings, or, in the Alternative, Summary Judgment, filed on November 17, 1995.

It is this motion, filed by the defendants after this Court's ruling in Ferguson, which is presently

before the Court. Consequently, there is no merit to the plaintiffs' claim that the Rappe affidavit was

not properly before the trial court merely because it was not filed contemporaneously with the

original motion for summary judgment.

¶16. Moreover, it is not true that the plaintiffs had no opportunity to rebut the conclusions of Dr.

Rappe's affidavit. The defendants first submitted Dr. Rappe's affidavit in March of 1994. As early as
December of 1994, the plaintiffs stated that they had "been able to develop significant scientific

evidence that directly contradicts and refutes the affidavits of Tondeur and Rappe." After the

defendants filed their second motion for summary judgment in November of 1995, the plaintiffs

obtained an extension of time within which to respond. In their response, the plaintiffs made no

mention of any need for additional time to submit evidence opposing the renewed motion, and the

"significant scientific evidence" mentioned almost a year earlier was not submitted.

¶17. This Court has noted that a party against whom a motion for summary judgment has been made

must respond with diligence. Richmond v. Benchmark Constr. Corp., 692 So. 2d 60, 62 (Miss.

1997). She remains silent at her peril. Travis v. Stewart, 680 So. 2d 214, 217 (Miss. 1996); Fruchter

v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988). We hold that if the plaintiffs indeed had

evidence to refute the conclusions of the Rappe affidavit, they had a full opportunity to present it in

their response to the second motion for summary judgment.

IV.

¶18. The Anglado Plaintiffs also argue that they demonstrated sufficient evidence of exposure to

dioxin and other chemicals discharged by the defendants' pulp mill sufficient to create an issue of fact

on their claims for toxic trespass and for private and public nuisance. In support of their argument the

plaintiffs cite Ferguson and Simmons, two dioxin cases decided by this Court in favor of the

defendants. The Simmons Court noted that these two cases "are essentially identical with regard to

the failure of the plaintiffs to establish either a nuisance or trespass cause of action, given that

Simmons and Ferguson both failed to have their property or themselves tested for the presence of

dioxin." Simmons, 697 So. 2d at 1085. The plaintiffs in the present case argue that the same

deficiencies existing in Ferguson and Simmons are not present here since their test results constitute

evidence that "dioxin is present on or in the immediate vicinity of the Plaintiffs' property."

¶19. The plaintiff has the duty in a tort case to prove by a preponderance of the evidence that the

party charged with the tort is the one actually responsible for it. Rucker v. Hopkins, 499 So. 2d 766,

769 (Miss. 1986); Magnolia Petroleum Co. v. Williams, 222 Miss. 538, 542, 76 So. 2d 365, 367

(1954). In order to establish a claim for common law trespass or nuisance, therefore, the plaintiffs

must present sufficient evidence not only that their properties were exposed to chemicals but also that

those chemicals came from the defendants' pulp mill. See, e.g., Masonite Corp. v. Dennis, 175 Miss.

855, 866, 168 So. 613, 616 (1936); Phillips v. Davis Timber Co., Inc., 468 So. 2d 72, 79 (Miss.

1985); Comet Delta, Inc. v. Pate Stevedore Co. of Pascagoula, Inc., 521 So. 2d 857, 859 (Miss.

1988) ("[o]ne is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of

an invasion of another's interest in the private use and enjoyment of land"). See also Berry v.

Armstrong Rubber Co., 989 F.2d 822, 829 (5th Cir. 1993) (under Mississippi law plaintiff must

present evidence of an invasion by defendant in order to withstand summary judgment).

¶20. In a summary judgment hearing, "[t]he burden of producing evidence in support of or in

opposition to [the] motion. . .is a function of [Mississippi] rules regarding the burden of proof at trial

on the issue in question." Fruchter, 522 So. 2d at 198 (citing Galloway v. Travelers Ins. Co., 515

So. 2d 678, 683 (Miss.1987)); see also Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,

322-24 (1986). Consequently, it is incumbent upon the plaintiff opposing the motion for summary

judgment to set forth, by affidavit or some other form of sworn statement, specific facts which give
rise to genuine issues that should be submitted to a jury. Fruchter, 522 So. 2d at 199. See also

Brown v. Credit Ctr., Inc., 444 So. 2d 358, 364 (Miss. 1983) (once movant points out absence of

proof on claims as to which non-movant has burden at trial, non-movant must bring forward specific

probative evidence demonstrating existence of material fact issue).

¶21. In the present case, the Leaf River Defendants have presented uncontradicted evidence that the

dioxins and other chemicals present on the tested properties are inconsistent with the "fingerprint" of

pulp mill effluent and that the chemicals were not discharged by the mill. The defendants have

bolstered this evidence with further uncontradicted evidence that dioxin is produced by many natural

and artificial sources,(8) and that the chemicals present on the tested properties are consistent with

normal "background" levels in rural South Mississippi.

¶22. The Anglado Plaintiffs produced no evidence that the defendants' mill is the source of any dioxin

in the samples. The plaintiffs concede that they "did not produce an affidavit that the dioxin present

on their property came from the Defendants' paper mill." Their test results are silent on the source of

the dioxin contained in the samples, and plaintiffs offered no evidence relating the fingerprint of

dioxin discharged by the mill with the fingerprint of dioxin detected in the tested samples. Nor was

there any evidence that no other dioxin sources exist in the area in which the samples were taken.

¶23. The plaintiffs argue that "[i]t is for a jury to determine whether this chemical contaminant

originated from the Defendants." This very argument was rejected in Ferguson. In Ferguson, this

Court contrasted a situation similar to the present case with the circumstances present in Shutes v.

Platte Chem. Co., 564 So. 2d 1382 (Miss. 1990), a case in which a directed verdict for the defendant

chemical company was reversed:

The differences between the proof offered in Shutes and in this case are manifest. The Shutes

proved that the only entity in the vicinity of their property producing linuron was Platte

Chemical, and that linuron was actually on their property. The Shutes testified as to the actual

physical effect Platte Chemical had on their health and on their property. The Fergusons

produced no proof of this type.

Ferguson, 662 So. 2d at 662. Like the plaintiffs in Ferguson, the Anglado Plaintiffs have produced

no evidence linking the dioxin on their properties with that discharged by the mill. In light of this

failure by the plaintiffs to establish any evidence that the defendants' pulp mill is the source of the

dioxin found on their properties, we therefore hold that the grant of summary judgment by the trial

court was proper.

¶24. In regard to the plaintiffs' property damage claim, it is noted that even if the affidavit of G.B.

Vickery is taken as true, see supra note 4, the plaintiffs cannot recover for lessened property values

due to an unwarranted public perception of danger. Such a "stigma theory" has been expressly

rejected by this Court. See Ferguson, 662 So. 2d at 663. Additionally, while a claim of fraud was

raised in the plaintiffs' original joint Complaint, the Anglado Plaintiffs do not raise the issue of fraud

in their brief before this Court. Even if the issue were properly before the Court, however, there is no

evidence in the record to support such a claim.

V.
¶25. For the foregoing reasons, the grant of summary judgment is affirmed.

¶26. AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., ROBERTS, SMITH, MILLS AND WALLER, JJ.,

CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

SULLIVAN, P.J.

McRAE, JUSTICE, DISSENTING:

¶27. In 1989 the Mississippi Department of Environmental Quality released a report showing that fish

in the Leaf River and Pascagoula River contained dioxin, and it warned citizens to stop eating the fish

from these rivers. Subsequently, the Mississippi Commission on Wildlife, Fisheries, and Parks

ordered that the Leaf River, Pascagoula River, and Escatawpa River be closed to commercial fishing,

posting "no fishing" along the rivers. Now the majority is denying Mississippi citizens of their rightful

claims for loss of public and private use and loss of value of their property affected by the presence of

dioxin. More significantly, the majority unnecessarily expands the decision in Leaf River Forest

Products, Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995) by requiring plaintiffs to demonstrate a

"fingerprint" of the chemical dioxin--one of the world's deadliest chemicals--to show that dioxin was

placed into the streams at the Augusta Leaf River mill and that the dioxin obviously flowed

downstream from there. I respectfully dissent.

¶28. Experts have already testified that dioxin has been found on the premises. The Anglado plaintiffs

conducted tests to determine the presence of dioxin on their property and provided these results to

rebut Leaf River's initial motion for summary judgment. Dr. Arthur Hume also testified that the

samples contained dioxin. The evidence presented by the Leaf River defendants merely contradicted

the plaintiffs' evidence, at best. As a result, the trial court should not have granted the Leaf River

defendants' motion for summary judgment.

¶29. Yet, despite the evidence presented by the plaintiffs, the majority requires them to go even

further and show a "fingerprint" to prove that dioxin came from that specific plant. The familiar

burden of establishing proof by a preponderance of the evidence does not require "fingerprinting."

Moreover, our summary judgment burden certainly does not require such proof. Unfortunately, the

majority has been ensnared by the same trap that has befallen some of our trial judges. The

requirement is simple; if conflicting evidence exists as to proof of a cause of action, the court must

then stop and allow a jury resolve the issue.

¶30. In reviewing the grant or denial of summary judgment, this Court determines only whether there

are issues to be tried. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So. 2d 1305,

1309 (Miss. 1994). In making this determination, this Court conducts a de novo review. Id. This

Court reviews all the evidentiary matters in a light most favorable to the nonmoving party, and if, in

this view, the moving party is entitled to judgment as a matter of law, summary judgment in his favor

is appropriate. Id. The burden of showing that no genuine issue of fact exists is on the moving party.

"All that is required of a nonmoving party to survive a motion for summary judgment is to establish a

genuine issue of material fact by the means available under [Miss. R. Civ. P. 56(c)]." Spartan Foods

Sys., Inc. v. American Nat'l Ins. Co., 582 So. 2d 399, 402 (Miss. 1991).
¶31. In Ferguson, this Court found that the defendant companies were not liable because the

evidence was insufficient to hold them liable for infliction of emotional distress based on intentional,

willful, wanton or grossly negligent conduct. Ferguson, 662 So. 2d at 658-59. Prior to trial, the

Fergusons failed to have themselves or their property tested for dioxin. Id. at 659. The only test

conducted near the property in Ferguson was approximately eighty miles upstream from where the

damage allegedly occurred. Id. at 653. The Ferguson majority, noting the lack of tests done to show

the possible levels of dioxin or any other pollutant on the property under review, found "that mere

stigma, supported by tests showing dioxin contamination no closer than eighty river miles north of

the alleged damage, is not sufficient evidence of compensable injury." Id. at 664. Similarly, the

plaintiff in Leaf River Forest Products, Inc. v. Simmons, 697 So. 2d 1083 (Miss. 1996), presented

no evidence of dioxin tests conducted on his property or on his person. This Court again determined

that without showing that dioxin was present on the plaintiff's land or in his body, the plaintiff's proof

could not support a recovery under a claim of nuisance or trespass. Id. at 1085-86. Obviously the

Anglado plaintiffs, fully aware of the Ferguson and Simmons cases, performed the requisite tests on

their property as initially required by Ferguson. Those tests revealed the presence of dioxin on their

property, thereby overcoming the hurdles faced by the plaintiffs in Ferguson and satisfying their

burden on summary judgment.

¶32. It is apparent that the Anglado plaintiffs have established through testimony that dioxin is

present on their property. The problems faced by the majorities in Ferguson and Simmons simply

are not present in this case. Circumstantial and direct evidence is present in this case to present a case

to a jury. Dioxin came from the Leaf River mill and dioxin was found on the Anglado plaintiffs'

property. The majority discusses the elements of the claims only because the Anglado plaintiffs have

admitted that Ferguson has precluded their claims for increased risk of future disease and the stress

that would arise from fear of future disease, medical monitoring and punitive damages. However, the

claims for which the plaintiffs have offered substantive proof of the presence of dioxin--continuing

toxic trespass, public and private nuisance, and property damage--should go forward. A jury should

be allowed to evaluate these claims. To hold as the majority has would simply give total immunity to

any pollutant of our waterways because one would have to prove exact "fingerprint" identification to

get beyond summary judgment. Because I do not agree with the rationale employed by the majority

today, I respectfully dissent.

SULLIVAN, P.J., JOINS THIS OPINION.

1. The stock of LRFP is owned by LRC; the stock of LRC is owned by GNNC; and GNNC is a

subsidiary of Georgia-Pacific. Warren Richardson is Vice-President of LRFP and General Manager of

the pulp mill operated by LRFP. Acker Smith is the mill's Manager of Environmental Affairs.

2. A summary of the underlying facts relating to the controversy surrounding the Leaf River

Defendants can be found in Leaf River Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 650-55 &

659 (Miss. 1995); Leaf River Forest Prods., Inc. v. Simmons, 697 So. 2d 1083, 1083-85 (Miss.

1996); and Beech v. Leaf River Forest Prods., Inc., 691 So. 2d 446, 447 (Miss. 1997).
3. Among the exhibits attached in support of the motion for summary judgment were the affidavits of

Defendant Warren Richardson and Karen B. Webb, M.D. Richardson testified that more sensitive

testing which became available in the late 1980's revealed trace amounts of TCDD in LRFP's treated

effluent. After the EPA determined that the cause of the dioxin formation was the pulp mill bleaching

process, the mill modified this process. Richardson testified that "no 2,3,7,8-TCDD has been detected

in any monthly testing of the treated effluent discharged by the Mill since August 1990." Attached to

Richardson's affidavit were the results of fish studies conducted by the DEQ which bolstered this

claim. In regard to these fish studies, Richardson further stated that prior to receiving any test results

of fish from the Pascagoula River, the public was warned not to eat certain fish, and commercial

fishing was banned on that river. After the DEQ analyzed the test results, however, the warning signs

were taken down and the commercial fishing ban was lifted. The other affiant, Dr. Webb, is an expert

in environmental medicine and principal investigator for a series of studies evaluating Missouri

residents exposed to dioxin in the soil near their homes. She testified that dioxin is present

throughout the environment and that determination of environmental dioxin levels is not an accurate

way to predict individual exposure.

4. The plaintiffs also submitted two other affidavits in opposition to the defendants' motion. One was

from Plaintiff John R. Fayard, Jr., who testified that he had purchased his Poticaw Camp property

primarily for fishing, boating and swimming. He stated that he had read reports of toxic discharges

from the mill into the Leaf River; had observed posted warnings against advising the public not to eat

certain fish; that he had observed the bayou and the river become discolored; and that he had taken

fish out of the bayou and river with "unnatural looking sores and spots on them." Mr. Fayard stated

that all of these facts resulted in a lessened personal enjoyment and use of his property. G.B. Vickery,

a real estate appraiser, testified in his affidavit that the "negative publicity generated by the reported

chemical pollution of the Pascagoula River area" resulted in a forty-three percent drop in the Anglado

Plaintiffs' property values.

5. Apparently, neither the Reply Brief nor the affidavits of Tondeur and Rappe were placed in the

court record at this time. Both the brief and the affidavits are included in the record at a later date, as

attachments to the defendants' second motion for summary judgment filed November 17, 1995.

6. This denial of the defendants' summary judgment motions took place on the day the presiding

judge, James E. Thomas, resigned from the circuit court bench to take his seat on the newly-formed

Mississippi Court of Appeals. Judge Thomas stated no reason for the denial of the motions in his

Order. The case was transferred to the docket of Judge Jerry O. Terry.

7. The plaintiffs apparently did not raise an issue regarding Tondeur's affidavit since it was not relied

upon for the circuit court's judgment.

8. The various sources of dioxin in soil include forest fires, municipal waste incinerators, hospital and

chemical incinerators, fireplaces and woodburning stoves, automobiles which burn leaded gasoline,

wood-treating chemicals, sewage treatment, steel mills, composting and production and use of

chlorine. (C.P. 204; 886).