Pierre Chestang et al. v. IPSCO Steel, Inc., et al.

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REL: 04/23/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1080713 P i e r r e Chestang et a l . v. IPSCO S t e e l , Inc., e t a l . 1080815 IPSCO S t e e l (Alabama), I n c . v. P i e r r e Chestang (Appeals from M o b i l e Circuit et a l . Court, CV-05-2474) 1080713, LYONS, 1080815 Justice. The appellants Cassandra in Chestang, this Mattie Johnson, Joseph K i t t r e l l , Michael Phillips, r e f e r r e d to They of are 11 (Alabama), over Inc., Gene Turner, plaintiffs who Ltd., Chestang, Johnson, Stephen and as Alabama, Pierre Timothy collectively 160 IPSCO Brooks, are Beverly K i t t r e l l , Billy (hereinafter action Pamela Phillips, Fran "the Turner homeowners"). sued IPSCO IPSCO Steel Construction, I n c . , and IPSCO, I n c . ( h e r e i n a f t e r r e f e r r e d t o c o l l e c t i v e l y "IPSCO"), i n the Mobile Circuit the court a judgment the trial entered homeowners appealed, and and IPSCO in Court. favor ("the and July 1, of 2005, over 160 N o v e m b e r 17, a jury verdict IPSCO. Steel (Alabama), Procedural On on On Inc., The complaint 1 The plaintiffs to s t a t e a d d i t i o n a l of outrage. 2008, against homeowners cross-appealed. History residents of Mobile p l a i n t i f f s " ) sued IPSCO, a l l e g i n g n u i s a n c e , wantonness. as subsequently claims of t r e s p a s s County negligence, amended and A l l t h e p l a i n t i f f s ' c l a i m s w e r e b a s e d on the their tort IPSCO's The p l a i n t i f f s a l s o s u e d P a u l W i l s o n , J o h n H o w l e y , and G r a n t S h o r t r i d g e ; however, those d e f e n d a n t s were dismissed f r o m t h e a c t i o n on N o v e m b e r 10, 2 0 0 8 . T h e i r d i s m i s s a l i s not at i s s u e i n t h i s appeal. 1 2 1080713, 1080815 operation of manufactured that a steel community from scrap metal. made excessive fumes properties. i n the Axis facility IPSCO's produced facility that IPSCO left a answered at which i t The c o m p l a i n t s noise residue on and the the complaints, alleged that i t plaintiffs' and t h e parties engaged i n a l e n g t h y d i s c o v e r y p r o c e s s . Pursuant t o an of that homeowners' the t r i a l claims other court, would be tried plaintiffs Before court agreed i n November remained pending trial, entered the p a r t i e s pursuant 2008. the The claims before the t r i a l to a motion by IPSCO, a j u d g m e n t on t h e p l e a d i n g s of the court. the t h e t o r t - o f - o u t r a g e c l a i m . The h o m e o w n e r s ' r e m a i n i n g of nuisance, to a jury close of from November The trial c l a i m and o r d e r e d be submitted motion to claims and t r e s p a s s were 3 t o November the homeowners' j u d g m e n t as a m a t t e r claims. wantonness, trial i n IPSCO's f a v o r as to negligence, order 14, 2008. c a s e - i n - c h i e f , IPSCO tried At the moved for a o f l a w ("JML") as t o a l l t h e h o m e o w n e r s ' court entered a JML as t o t h e negligence t h a t t h e i s s u e o f p u n i t i v e damages w o u l d n o t the j u r y . The trial as t o t h e h o m e o w n e r s ' n u i s a n c e court denied IPSCO's and w a n t o n n e s s c l a i m s . At t h e end of t h e p r e s e n t a t i o n o f IPSCO's e v i d e n c e , 3 IPSCO 1080713, again 1080815 moved nuisance, argument for a JML wantonness, on as and the motion, to the trespass. the t r i a l homeowners' After court claims extensive entered a I P S C O on t h e h o m e o w n e r s ' w a n t o n n e s s c l a i m a n d o r d e r e d issue jury. of mental-anguish As a r e s u l t , c l a i m s were s u b m i t t e d instruct the j u r y anguish. Additionally, several refused. On for on IPSCO 17, and t h e t r i a l on p u n i t i v e d a m a g e s requested The t r i a l to the j u r y , jury November the instructions, 14, 2008, the jury entered f o r mental IPSCO the t r i a l returned and to the court d i d not and which the homeowners' nuisance court that the and t r e s p a s s and damages homeowners oral JML f o r damages w o u l d n o t be s u b m i t t e d only the homeowners' nuisance each court a verdict trespass claims. a j u d g m e n t on t h e v e r d i c t on N o v e m b e r 2008. On D e c e m b e r 9, 2 0 0 8 , t h e h o m e o w n e r s m o v e d f o r a new on of numerous trial the court claims grounds denied of the homeowners moved their claims court granted under Rule the motion other 50(b), on F e b r u a r y plaintiffs f o r the c e r t i f i c a t i o n under Rule 54(b), that motion, A l a . R. 6, remained 2009. A l a . R. The Because pending, of a f i n a l the j u d g m e n t on C i v . P. and t h e homeowners 4 C i v . P. trial filed The trial a timely 1080713, notice Inc. 1080815 of appeal on M a r c h 1 6 , 2 0 0 9 . subsequently filed a notice Factual I. jury their excerpts from the video depositions transcribed into each times; deposition unacceptable this following Axis shows parts Therefore, t o do of the we so w o u l d will require i n the record on a p p e a l shows t h e facts. The h o m e o w n e r s a l l live i n or near a facility from metal. i n the Axis operations was n o t The r e c o r d n o t show w h a t because community i n Mobile one by v i d e o IPSCO included constructed located of three to and s t a r t e d m u l t i p l e to the jury. testimony presented speculation. relevant scrap stopped does were p r e s e n t e d The e v i d e n c e only was however, the r e c o r d consider presented the reporter's t r a n s c r i p t . video depositions the cross-appeal. c a s e - i n - c h i e f , t h e homeowners However, t h e t e s t i m o n y not (Alabama), Background employees. that Steel Background During the of IPSCO that County. Several IPSCO at which i t manufactures i n Axis I n 2000 o r 2 0 0 1 , steel other industrial community, but manufactures at i t s Axis steel facility 5 IPSCO's facilities facility products. i n 2001. Unless IPSCO IPSCO are i s the began stops 1080713, 1080815 production f o r maintenance, a day, 7 days The a homeowners testified i t s facility, properties and c o n t i n u e d date from of trial. IPSCO's beginning noises that, dust began to s e t t l e to IPSCO that homeowners that the dust also from the area of the trial, by the language that IPSCO dust from had IPSCO's immediately moved i n limine motion The t r i a l of from was facility. The their anguish the t r i a l other than n o t made as evidence other a part began, 6 evidence on of the and, noise and However, i n the motion the t r i a l than indicating regarding both t h e homeowners. court's ruling the t r i a l to exclude individuals excluded received complaints before loud c o u r t g r a n t e d IPSCO's m o t i o n the order, individuals discussing by activities. IPSCO r e c o r d on a p p e a l . that, and n o i s e h a v e damaged received complaints homeowners. through testified f r e q u e n t l y awakened IPSCO's their originated were o f IPSCO's i t had on they a s s e r t that the dust Before hours started settle p r o p e r t y v a l u e s and t h a t t h e y have s u f f e r e d m e n t a l a result 24 and t o a c c u m u l a t e maintain The after 2001, coming homeowners a They facility. in i t sf a c i l i t y week. operating the i t operates in court limine and t h e 1080713, 1080815 homeowners' c o u n s e l spoke o n l y of d i s a l l o w i n g related To to submitted noise. to calls i t had noise from the any preserve trial court received IPSCO's from the facility. complaints the homeowners record, IPSCO's nearby such records of telephone residents complaining The homeowners d i d not submit d o c u m e n t s s h o w i n g t h a t IPSCO h a d r e c e i v e d c o m p l a i n t s individuals other than of from t h e homeowners of dust coming from i t s i n limine exclude testimony facility. IPSCO plaintiffs IPSCO's also to preserve the t r i a l to and, court several p l a i n t i f f s As t h e t r i a l that II. furnace of the homeowners c l a i m s were not then going to of trial. court advised the j u r y case "involving many m o r e Operations ("EAF"). scrap the granted the d e p o s i t i o n t r a n s c r i p t s was p a r t o f a l a r g e r i t s facility scrap the record, court from plaintiffs." IPSCO's At whose The t r i a l began, however, the t r i a l the t r i a l names a n d to o t h e r t h a n t h e homeowners. motion submitted moved metal metal i n Axis, During i s dropped IPSCO uses the manufacturing from i s melted. a bucket Lime 7 is an electric process, into 100 t h e EAF, introduced into arc tons where the 1080713, 1080815 resulting liquid, materials i n the scrap then poured much like steel separating known as s l a g . o f f , c o o l e d , and c r u s h e d gravel. Once separated into so h o t t h a t metal e v e n t u a l l y c o o l and s e t t l e homeowners hazardous presented waste. from The the slag, slag i s material the liquid into t o more t h a n are produced. The 2 a d u s t known a s E A F d u s t . indicating IPSCO p r e s e n t e d e v i d e n c e i s not a hazardous lighter a useable i s heated fumes evidence into from sheets. t h e EAF, t h e s c r a p m e t a l degrees, dust steel commonly i s c o o l e d and formed In liquid t h a t EAF dust 6,000 fumes The is a i n d i c a t i n g t h a t EAF waste. IPSCO's r e p r e s e n t a t i v e s and e x p e r t w i t n e s s e s t e s t i f i e d i n detail about IPSCO's e f f o r t s to capture and c o n t r o l t h e EAF dust at i t s Axis facility. IPSCO's w i t n e s s e s testified its melt where EAF is enclosed. expert shop, Based on the pictures is he had i n e n v i r o n m e n t a l management, he b e l i e v e d t h a t the melt a l l o w i n g EAF d u s t t o e s c a p e located, s h o p was seen, the that completely homeowners' Fred Hart, t e s t i f i e d that not f u l l y thus enclosed, into the environment. H o w e v e r , on T h e w i t n e s s e s who t e s t i f i e d t o t h i s f a c t d i d n o t s p e c i f y w h e t h e r t h e s c r a p m e t a l i s h e a t e d t o 6,000 d e g r e e s F a h r e n h e i t o r 6,000 d e g r e e s Celsius. 2 8 1080713, 1080815 cross-examination, Hart IPSCO's f a c i l i t y . the melt ducts shop, and m e t a l fumes r i s i n g directed toward t o EAF dust. settle on the baghouse series of filters then by is that m a k e u p as E A F is being never visited the the is directed to baghouse the air. stack. The electronically a day, 7 days The fumes are allowed to an extensive Filtered air baghouse and and, therefore, The parties i s a hazardous environment. indicating that facility matter from the was baghouse built stack IPSCO's p r o p e r t y . 9 expert i n the presented matter witnesses i s o f t h e same c h e m i c a l the Axis and visually i s present homeowners' matter in a week. matter stack. the p a r t i c u l a t e dust where either i t from that, are captured i n i s then remove waste. evidence of had r e g a r d i n g whether the p a r t i c u l a t e IPSCO's boundaries dust or hours released into presented EAF the baghouse evidence hazardous testified baghouse amount o f p a r t i c u l a t e r e l e a s e d from a a floor that I P S C O p e r s o n n e l 24 conflicting he f r o m the EAF s t a c k are monitored A certain air The r e l e a s e d from the baghouse that IPSCO's r e p r e s e n t a t i v e s t e s t i f i e d cooled is admitted a The model predicted would waste that homeowners also prepared that travel before particulate beyond the IPSCO's r e p r e s e n t a t i v e s and 1080713, expert 1080815 witnesses particulate that matter that testified applicable The hazardous States waste representatives and waste Environmental no. Hart, waste. of and They with a l l regulations regarding K061 only dust"). The p a r t i e s presented expert, however, i t i s undisputed at that testified hazardous c a n be h a z a r d o u s conflicting produces IPSCO's 3 as K061 b e c a u s e t h a t d u s t i s h i g h l y cadmium, and o t h e r and t h a t by the EAF dust c o l l e c t e d i n as K061 i s c o n s i d e r e d nondegradable IPSCO ("K061 that i s classified P r o t e c t i o n Agency ("EPA") as t h e homeowner's chromium, l e a d , dust stack compliance c o l l e c t e d i n the baghouse are K061 in federal testified classified contains i s amount t h e baghouse i s not a hazardous IPSCO the baghouse i s c l a s s i f i e d concentrated. from a minuscule emissions. EAF dust United that state environmental only i s released the p a r t i c u l a t e matter further the testified because i t heavy metals t o human evidence regarding i t s Axis facility the f a c i l i t y that that health. how much each day; produces at l e a s t S e e , e . g . , 40 C.F.R. § 2 6 1 . 3 2 ( a ) ( " T h e f o l l o w i n g s o l i d wastes are l i s t e d hazardous wastes from s p e c i f i c sources u n l e s s t h e y a r e e x c l u d e d u n d e r [ o t h e r s e c t i o n s ] . ... K 0 6 1 - ¬ Emission control dust/sludge from the primary production of steel i n electric furnaces."). 3 10 1080713, several also 1080815 tons o f K061 undisputed substance, the dust that, using i t i s i n operation. because i t carries a risk i s undisputed K061 o f wind dust i s a It i s powdery dispersal i f released that shows to this that licensed facility appeal. IPSCO transports must dispose i t to via truck perform i n Emelle by into thereafter or K061 rail K061 of which however, dust to of of to materials dilution; contact with as a dust, classified result, materials considered hazardous as any record and specially including K061 as requiring a ("Waste may materials classified materials not i t produces facilities K061 dust are the o p e r a t e d by Waste Management, I n c . be of the disposal Notably, disposed Ultimately, collects Management"). come IPSCO s p e c i a l p r a c t i c e s , most of the d e t a i l s relevant K061 not that are disposal K061. The homeowners presented e m p l o y e e s o f IPSCO and stated that at day atmosphere. It as each Emelle however, a of e-mails Waste Management i n 2003. IPSCO had p r e v i o u s l y shipments series made up IPSCO r e q u e s t e d t h a t of expected 0-20% to send soil and t h e amount o f s o i l 11 The between e-mails for disposal 80-100% be K061; increased 1080713, to 1080815 40-60%. cause When W a s t e M a n a g e m e n t e m p l o y e e s i n q u i r e d as t o o f t h e i n c r e a s e i n t h e amount o f s o i l , responded stating: maintenance dust has scrape soil The around the by the i s coming homeowners generated i n the contained a shipments dust generated baghouse. wind from also and the presented K061-disposal "waste-profile dust, soil the is from Outside off soil. employees boots This general where they will i s where the 0-20% over 460 process. summary" shipping Those records each described that records the t o Waste Management for disposal debris contaminated w i t h K061 contaminated with K061 dust. The as 40¬ dust, and waste-profile summaries a l s o c o n t a i n e d p r i n t e d t e x t s t a t i n g : "Excess generated migrated scrape t h e 460 the from by the clean the wind dust from the from." IPSCO s e n t 6 0 % K061 40-60% waste cleanup migrated routinely extra "[T]he IPSCO's the up around and soil off per the baghouse. boots. [IPSCO's They The will employees]." soil is dust has routinely Many of r e c o r d s a l s o i n c l u d e d forms t h a t had been stamped w i t h term "wind opined that escapes into dispersal." Based significant amount a the environment from 12 on of these K061 IPSCO's documents, dust Hart regularly facilities. Hart 1080713, also 1080815 stated that IPSCO's A x i s unloaded, K061 dust facility when and t r a n s p o r t e d IPSCO p r e s e n t e d dispersal" and EAF trucks from evidence dust and r a i l the cars that was p l a c e d on t h o s e and t h a t t h e term r e f e r e n c e d for a t Waste dispersal IPSCO. IPSCO stating IPSCO shipped. could showed referenced, Dust only On their black ship, of t h e Homeowners' and s t a t e d and after the records not at records described that testified than contained what i t actually that 460 other shipments soil. Properties IPSCO began i t accumulated houses. soil more "wind the p o t e n t i a l that not m a t e r i a l s generally described that and t h e i r dust the from loaded, facilities, testimony representative 11 a c t u a l l y properties vehicles, K061 that, The homeowners on of IPSCO's documents Management's presented percentages materials III. also are the term b y Waste Management wind escape facility. indicating i n the shipping records could the dust that operations on their settled as g r e y plants, Some o f t h e h o m e o w n e r s or their testified t h a t t h e d u s t c a u s e d t h e i r o u t d o o r f l o w e r s , g a r d e n s , and other plants however, these of t h e i r houses to homeowners die. admitted On that cross-examination, recent 13 photographs 1080713, showed 1080815 living testified homeowners The and gardens. and that i t made testified on t h e i r homeowners' that their they a n d IPSCO evidence each regarding a n d t h a t none negligible baghouse s t a c k . The attempted it being e x t e n s i v e and the from dust IPSCO's on the environment matter the facility. a l l the dust produced of particulate by i t s save t h e released from the T h e h o m e o w n e r s m a i n t a i n t h a t some o f t h e K 0 6 1 by t h e wind homeowners Isphording, enjoyed presented dust and o t h e r EAF dust r e g u l a r l y escape are carried Other of the dust. whether i s released into amount houses ugly. longer p r o p e r t i e s was E A F d u s t IPSCO m a i n t a i n s t h a t i t c a p t u r e s and o f t h e homeowners houses no p r o p e r t i e s because homeowners conflicting EAF Some 4 t h a t t h e d u s t n e e d e d t o be c l e a n e d f r o m t h e i r continually outdoors plants IPSCO's t o t h e homeowners' presented a forensic from testimony mineralologist facility properties. from Dr. and g e o l o g i s t . Wayne IPSCO t o e x c l u d e I s p h o r d i n g ' s t e s t i m o n y on t h e g r o u n d d i dnot s a t i s f y Pharmaceuticals, the requirements that of Daubert v. M e r r e l l I n c . , 5 0 9 U.S. 5 8 9 ( 1 9 9 3 ) . The t r i a l Dow court W i t h o u t a d m i t t i n g t h a t E A F d u s t i s on t h e homeowners' p r o p e r t i e s , IPSCO a l s o p r e s e n t e d e v i d e n c e i n d i c a t i n g t h a t E A F d u s t h a s been u s e d as a f e r t i l i z e r . 4 14 1080713, denied 1080815 IPSCO's m o t i o n s , Isphording Ala. R. to testify as an expert witness and under allowed Rule 702, Evid. Isphording dust overruled i t s objections, from the material from Isphording material testified homeowners' the dust that Isphording also samples p r o p e r t i e s and tested we as the removed th[e] magnetic i t is identical of baghouse t h a t t h e amount o f m a g n e t i c the content. sample a of magnetic magnetic examine microscope, had found collected "[W]hen a we he and concluded: underneath material that to the dust." material in t h e samples e x c e e d e d what s h o u l d have been p r e s e n t naturally. IPSCO Isphording objected to this testimony should have determined what referencing only locations Isphording testified and noted been present o u t s i d e the A x i s that after he magnetic material he had removed from returned them t o t h e dust samples taken p r o p e r t i e s and analysis. chemical naturally community. finished the by dust from the testing the samples, he homeowners' sent the samples to a l a b o r a t o r y f o r a chemical Isphording analysis properties that of the then compared dust w i t h the r e s u l t s samples the results from the o f s a m p l e s o f EAF 15 dust of the homeowners' taken from 1080713, inside dust 1080815 IPSCO's b a g h o u s e . contained occurs the dust contained naturally, samples higher mercury, concentrations Based the results of from some than chemical as a " f i n g e r p r i n t " facility, should the properties have occurred samples occurred have contained naturally. analysis characterized IPSCO's presence the dust Isphording o f t h e magnetic m a t e r i a l and the that than should particularly opined lead, used uniquely i n t h e homeowners' of examination the iron, manganese, a r s e n i c , cadmium, chromium, although on h i s v i s u a l t h e EAF I s p h o r d i n g t h e n t e s t i f i e d t h a t most concentrations lower that Manganese, but i s a metal taken n a t u r a l l y of the metals and chromium, vanadium, and z i n c . the s t e e l - m a k i n g p r o c e s s . of testified cadmium, arsenic, manganese, n i c k e l , testified, Isphording of of manganese, of which samples-¬ Isphording steel-making--Isphording on t h e h o m e o w n e r s ' the nearest the source p r o p e r t i e s came of a large from amount of manganese. On cross-examination, IPSCO m e t h o d o l o g y on s e v e r a l b a s e s . Isphording combined homeowner's p r o p e r t y . dust challenged Specifically, from multiple IPSCO a l s o n o t e d 16 Isphording's IPSCO n o t e d locations on that Isphording that each failed 1080713, 1080815 to f o l l o w q u a l i t y - c o n t r o l and q u a l i t y - a s s u r a n c e that p r o c e d u r e s and h i s methods were n o t s u p p o r t e d by s c i e n t i f i c Specifically regarding q u a l i t y c o n t r o l and q u a l i t y a s s u r a n c e , IPSCO n o t e d t h a t I s p h o r d i n g custody procedures laboratory and failed to follow certain that he exposed the f o r a chemical Atull Salholtra, samples analysis. a civil IPSCO's expert engineer and "sloppy, unprofessional, also s t a t e d : " I don't are defensible based on conclusions that challenged Isphording's facts c a n make h i s data he h a s a r e n o t r e l i a b l e when Dr. expert in an investigation credibility, testifying Salholtra any c o n c l u s i o n s ... and that c e r t a i n l y the at a l l . " showing before a submitting and n o t r e l i a b l e . " t h i n k we to witness, environmental modeling, stated that Isphording's misstated chain-of- e n v i r o n m e n t and m a n i p u l a t e d them b e f o r e them was literature. juries IPSCO that also he i n two had prior cases. B a s e d on I s p h o r d i n g ' s believed dust that results H a r t t e s t i f i e d t h a t he t h e d u s t on t h e h o m e o w n e r s ' and o t h e r properties conclusions, EAF dust and t h a t through the a i r . showed that properties i t got to the Hart t e s t i f i e d the metals 17 present on that the was K 0 6 1 homeowners' Isphording's homeowners' 1080713, 1080815 properties were standards present f o rresidential Corrective Action 94-580, standards Hart standards were that higher there evaluation ("RBCA") on. than those established Salholtra and t h a t problem. testified a test It just According anybody's very conservative opinion, ... screening that result means the showing screening values. until you suggests further t h a t you i s a problem or not values. ... go that t o S a l h o l t r a , i n such t h e s i t u a t i o n t o see i f there because these are p r e l i m i n a r y very the 2795. a c a s e t h e RBCA g u i d a n c e d o c u m e n t " s t r o n g l y the under Based s p e c i f i e d i n t h e RBCA " d o e s n o t mean h a s t o be done." re-evaluate screening S a l h o l t r a , c o a u t h o r e d t h e RBCA preliminary a than a n d R e c o v e r y A c t o f 1 9 7 6 ("RCRA"), P u b . relied is higher s e t by t h e Alabama R i s k O c t . 2 1 , 1 9 7 6 , 90 S t a t . IPSCO's e x p e r t , levels levels soils program Resource Conservation L. at They a r e j u s t It's to not proof f o r the next level." However, i t i s u n d i s p u t e d t h a t a d d i t i o n a l t e s t i n g of the dust on was t h e homeowners' property not done, either by t h e homeowners o r b y IPSCO. Salholtra indicating stated that h i s opinion IPSCO had that there contaminated 18 was no the evidence homeowners' 1080713, 1080815 properties. Salholtra stated: "[W]e always l o o k at the source f i r s t where the a l l e g e d c o n t a m i n a t i o n or chemicals are b e i n g e m i t t e d a n d y o u s e e w h a t ' s h a p p e n i n g t h e r e . ... A n d i f y o u f i n d a t t h e s o u r c e y o u do n o t h a v e a p r o b l e m . And when we say a problem, we mean t h a t i t i s i n c o m p l i a n c e w i t h f e d e r a l and s t a t e r e q u i r e m e n t s ... they are very s t r i c t standards. So i f y o u meet those standards at the source at the o r i g i n , then y o u r e a l l y do n o t n e e d t o do a n y t h i n g e l s e , b e c a u s e t h a t t e l l s y o u t h a t i t i s s a f e a n d t h a t t h e r e i s no unacceptable, no contamination being deposited anywhere i n the neighborhood ... f r o m t h a t s o u r c e . " In late 2005, response to after hired a company on the the from ambient a Air south as Ambient installed end particular t h a t from did measure of The a i r around testified not its p r o p e r t i e s i n the known homeowners' p r o p e r t i e s . in filed from dust had source. six monitors the pollution 19 was community, Services, monitors 5 Inc. at two toward the not just Air's levels pollutants representative 2008, the that monitors exceeded The r e c o r d does not i n c l u d e any d e t a i l s r e g a r d i n g substance or c i r c u m s t a n c e s of these c o m p l a i n t s . 5 in measured a l l p o l l u t a n t s December 2005 t o e a r l y any facility property, monitors, Ambient and i n the a i r near i t s air IPSCO's suit Axis Air to measure the p o l l u t a n t s Ambient locations that residential ("Ambient A i r " ) , facility. plaintiffs complaints contaminating IPSCO the the the 1080713, 1080815 National Ambient A i r Q u a l i t y micrograms e.g., 42 Ambient per cubic U.S.C. Air's not test its Salholtra's in its t h e EPA. cross-examination, that Ambient of the materials that See, 6 A i r did c o l l e c t e d by t h e homeowners did not monitoring. statement that a n d on i f t h e NAAQS a r e s a t i s f i e d , i s "no c o n t a m i n a t i o n b e i n g the neighborhood," IPSCO maintained on t h e homeowners' p r o p e r t i e s deposited that " i t i s anywhere the dust that does n o t o r i g i n a t e from facility. To and on testified content by o f 150 on t h e r e s u l t s o f A m b i e n t A i r ' s m o n i t o r i n g and there settled However, I t i s undisputed any a i r Based safe" 7409. the chemical ("NAAQS") l i m i t established representative filters. perform § meter Standards support documents Department trial, i t s p o s i t i o n , IPSCO a l s o regarding of Environmental t h e homeowners documents, investigations arguing Management moved that i n limine they were presented done by t h e Alabama ("ADEM"). to exclude irrelevant, unauthenticated, a n d d i r e c t e d " t o w a r d an u l t i m a t e homeowners argued 6 A also microgram that a letter from i s one m i l l i o n t h o f a gram. 20 testimony Before t h e ADEM immaterial, issue." ADEM to The State 1080713, 1080815 R e p r e s e n t a t i v e R u s t y G l o v e r s h o u l d be e x c l u d e d as p r e j u d i c i a l . Notably, Glover motion there i n the record on from appeal; The t r i a l homeowners' ADEM to however, d i dnot s p e c i f y which l e t t e r exclude. the a r e two l e t t e r s Representative t h e homeowners' t h e homeowners sought t o c o u r t made t h e f o l l o w i n g w r i t t e n r u l i n g o n motion: " A n y r e f e r e n c e o r s u g g e s t i o n t o t h e j u r y t h a t ADEM has determined that IPSCO i s not causing any problems as an o p i n i o n on t h e u l t i m a t e i s s u e , g r a n t e d a s t o u l t i m a t e i s s u e . ... A n y r e f e r e n c e o r s u g g e s t i o n t h a t ADEM h a s d e t e r m i n e d t h a t t h e r e i s no pollution from particulate on the plaintiffs' p r o p e r t i e s , granted except f o r cross examination." The homeowners court's d i d not seek rulings admission Early or any c l a r i f i c a t i o n request any standing i n the t r i a l , the jury. occurred homeowners the objection trial to the o f a n y o f t h e ADEM d o c u m e n t s . the f i r s t witness documents, b u t IPSCO d i d n o t i m m e d i a t e l y to of the Before between IPSCO the r e f e r e n c e d t h e ADEM present t h e documents d i d so, the f o l l o w i n g d i s c u s s i o n trial court and counsel f o r the d u r i n g an a r g u m e n t r e g a r d i n g IPSCO's o b j e c t i o n s t o admission "Counsel: of Isphording's "Well, then written report: l e t me 21 address this. They 1080713, 1080815 have a l e t t e r to Rusty G l o v e r t h a t ' s n o t even s i g n e d by a s c i e n t i s t about samples t h a t were t a k e n at l o c a t i o n s they c a n ' t even i d e n t i f y , b u t has t h e imprimatur o f an a p p r o v a l o f a s t a t e a g e n c y i n a letter [ 7 ] " T r i a l Court: I'm g o i n g t o do t h i s . I'm g o i n g t o a l l o w t h a t l e t t e r t o be r e a d , b u t i t ' s n o t g o i n g back t o the j u r y . "Counsel: Subsequently, A l l right." IPSCO showed t h e j u r y - - a n d regarding--multiple Glover, letters letters a letter memorandum. IPSCO used these cross-examination IPSCO's quoted use solicitation and and of showed homeowners witnesses. t h e homeowners these documents trial, ADEM regarding IPSCO's counsel solicited and d u r i n g i t s Except never during for objected trial the to or i t s ADEM a n d i t s a c t i v i t i e s Axis facility. On f o r t h e homeowners t h e ADEM d o c u m e n t s t o t h e j u r y . also f r o m ADEM t o o t h e r witnesses above, of testimony during Representative documents r e p e a t e d l y d u r i n g i t s o f i t s own findings concerning occasions to testimony f r o m I P S C O t o ADEM, a n d a n i n t e r n a l o f t h e homeowners' examinations discussion ADEM f r o m ADEM t o I P S C O , l e t t e r s individuals, direct from solicited testimony Counsel regarding several read from f o r the ADEM's Once a g a i n , t h e homeowners d i d n o t s p e c i f y w h i c h l e t t e r f r o m ADEM t o R e p r e s e n t a t i v e G l o v e r t h e y w e r e r e f e r e n c i n g . 7 22 1080713, 1080815 Although discussed appeal, i t i s apparent during trial were the following were p r e s e n t e d regarding to the jury. dust community. facts on the inspector to properties. Representative not included regarding collect Glover In samples September ADEM 29, made 2003, in complaints the Axis to ADEM inquires response, from on and i t s a c t i o n s properties Glover documents i n the record I n 2 0 0 3 , ADEM r e c e i v e d complaints. A some o f t h e ADEM residential Representative concerning that ADEM the letter sent an complainants' from e x p l a i n e d ADEM's f i n d i n g s a s ADEM to follows: "[ADEM] has a n a l y z e d t h e s e samples m i c r o s c o p i c a l l y in order to identify the constituents of the material. B a s e d on t h e a n a l y s e s , i t a p p e a r s t h a t a p o r t i o n o f t h e c o n s t i t u e n t s c o u l d have o r i g i n a t e d from a steel mill. However, given the i n d u s t r i a l i z a t i o n o f t h e area and t h e u n c e r t a i n t i e s inherent i n microscopic analysis, we cannot d e f i n i t e l y determine a t t h i s time whether [IPSCO] i s a prime source of t h i s b l a c k dust." ADEM sent portions microscopic testing Subsequently, south end of of t h e samples i t took o f t h e samples produced ADEM IPSCO's installed property two t o IPSCO; IPSCO's similar results. a i r monitors t o , as i t explained R e p r e s e n t a t i v e G l o v e r , " c o l l e c t and measure p a r t i c u l a t e 23 at the to matter 1080713, 1080815 in t h e s u r r o u n d i n g a m b i e n t a i r . " On A p r i l a letter stating: to Representative Glover 9, 2 0 0 4 , regarding ADEM i t s findings, "The d a t a [ c o l l e c t e d b y t h e a i r m o n i t o r s ] particulate matter concentrations at levels sent indicates expected in a r u r a l ( n o n - i n d u s t r i a l i z e d ) area, i . e . , no e x c e s s i v e l e v e l s o f dust industrial indicating measured." a contributing A July 19, 2004, letter t h e homeowners r e p o r t e d i d e n t i c a l is apparent from the testimony from source have been ADEM t o c o u n s e l f o r findings. Additionally, i t of several witnesses t h a t ADEM w r o t e t o R e p r e s e n t a t i v e G l o v e r on o t h e r o c c a s i o n s a n d r e p o r t e d identical findings IPSCO's performed i t s continued representatives also monitoring. testified that ADEM unannounced i n s p e c t i o n s o f i t s A x i s f a c i l i t y . presented regarding from a February 4, an u n a n n o u n c e d on J a n u a r y 3, 2 0 0 5 . 2005, internal ADEM i n s p e c t i o n o f IPSCO's often IPSCO memorandum Axis facility I n t h e memorandum, t h e i n s p e c t o r r e p o r t e d that h i s i n s p e c t i o n was p r o m p t e d that K061 d u s t was b e i n g IPSCO's A x i s f a c i l i t y . by an anonymous released into complaint the environment from T h e memorandum d e s c r i b e s i n d e t a i l t h e inspector's observations conclusions: "After and completing 24 then states the entire the inspector's inspection, I found 1080713, no 1080815 evidence being to substantiate the claim released to Before be submitted into i t requested evidence. t h a t t h e ADEM The d i s c u s s i o n then took p l a c e between t h e t r i a l for wastes environment." IPSCO r e s t e d i t s c a s e , documents of hazardous following c o u r t and c o u n s e l t h e homeowners: " C o u n s e l : A n d i t was my u n d e r s t a n d i n g , b a s e d on arguments t h a t w e r e made b e f o r e and d u r i n g t h e trial, t h a t w h i l e we c o u l d u s e ADEM d o c u m e n t s t o e x a m i n e w i t n e s s e s w i t h , we w e r e n o t g o i n g t o h a v e t h e m go b a c k t o t h e j u r y . We o b j e c t e d t o a n y o f t h e m t o b e g i n w i t h a n d s t a n d on t h o s e o b j e c t i o n s . "Trial Court: I b e l i e v e t h e c o u r t - - m y o p i n i o n was that i f they contained opinions, that the opinions c o u l d be r e a d i n t o e v i d e n c e , b u t t h a t t h e documents t h e m s e l v e s w o u l d n ' t go b a c k . And t h e y c a n be u s e d in c l o s i n g arguments " Counsel f o r IPSCO then noted had been used by documents examination for and noted that that counsel several of the ADEM f o r t h e homeowners i n t h e documents had been d i s p l a y e d the jury. Regarding o n e ADEM d o c u m e n t - - a d o c u m e n t t h a t was n o t made a p a r t o f t h e r e c o r d on a p p e a l - - t h e allow i t into stand alone offered evidence, exhibit." by IPSCO, trial court stated: " I ' l l b u t n o t t o go b a c k t o [ t h e j u r y ] a s a Regarding counsel the other f o r t h e homeowners 25 ADEM documents stated: "And I 1080713, 1080815 understand the court's words, those documents them i n c l o s i n g into in evidence, them ruling go back to That's document, qualification." object the my same too. Counsel or s t a t e jury." ruling. trial court I t will be subject f o r t h e homeowners d i d not any arguments t o the admission o f t h e ADEM d o c u m e n t s d u r i n g or trial. Complained-of Noise t e s t i f i e d that after facility night The They are admitted The h o m e o w n e r s its use opinions on t h a t IV. can but the documents themselves w i t h the consistent use they other admitted cannot otherwise opinions, In have been "Correct. that contain i s t h e same. argument, and t h e o p i n i o n s responded: to that on t h o s e booming, banging, sirens, direction and e x p l o s i o n s o f IPSCO's f a c i l i t y . they could that the noises None of hear the about a l o s s operating i n A x i s , t h e y were f r e q u e n t l y awakened d u r i n g t h e by loud beeping, IPSCO b e g a n the noises occurred homeowners of sleep. n o i s e s were s t a r t l i n g that clanging, seemed clearly inside at night complained Several to homeowners testified their and roaring, t o come f r o m t h e The h o m e o w n e r s both had crashing, houses during their that and the day. physicians testified that the and t h a t t h e y were o f t e n s c a r e d b y them. 26 1080713, 1080815 S e v e r a l homeowners t e s t i f i e d houses as much as One homeowner noises IPSCO completely that out presented IPSCO of the hear noise are 22 the awakened their began. was 30 testimony enjoyed noises he of longer days that in by March its also presented homeowners l i v e from p a s s i n g frequently facility at and tracks t h a t some o f t h e night for was March indicating near r a i l r o a d trains awakened evidence the 2007. s h u t down f o r m a i n t e n a n c e f r o m M a r c h 7 u n t i l 2007. several before testified approximately However, 21, t h e y had t h a t t h e y no reasons that and often homeowners unrelated to noise. IPSCO p r e s e n t e d measured the homeowners' evidence sounds and the a near lot of traffic, activity trains, measurements, the coming from IPSCO properties. admitted that On he and that He day and the other witness an expert vibrations properties. measurements d u r i n g from near at night and who that t h a t he noises. be detected cross-examination, took measurements 27 at w e r e no the however, for only short took observed Based there the he homeowners' p r o p e r t i e s ambient had of some testified concluded that could witness such on as his sounds homeowners' the expert periods. 1080713, V. 1080815 Damages The homeowners e a c h t e s t i f i e d noise and dust had significantly. that they b e l i e v e d that the diminished On their property cross-examination, several values of the homeowners t e s t i f i e d t h a t t h e y knew t h a t t h e i r p r o p e r t i e s were near area an industrial homeowners estimated value presented that by 50%. when the they purchased testimony of an them. appraiser On cross-examination, the appraiser h i s s u p p o s i t i o n s r e g a r d i n g what p o t e n t i a l willing to pay, n o t on cross-examination, been b u i l t a c t u a l home IPSCO a l s o n o t e d that, after had moved closer IPSCO started homeowner alone. that buyers might i n the area. some new h o u s e s t o IPSCO's i t soperations, properties had caused testified that she A n o t h e r homeowner made h i s h o u s e l o o k u g l y be On had operations one homeowner facility. The homeowners a l s o t e s t i f i e d their sales testified f i n d i n g s and i n t h e A x i s community a f t e r IPSCO began and on who the homeowners' p r o p e r t i e s had d i m i n i s h e d i n t h a t he b a s e d h i s o p i n i o n l a r g e l y on I s p h o r d i n g ' s on The t h a t t h e n o i s e and t h e dust them felt testified mental upset, anguish. One frustrated, and t h a t he f e l t a n d t h a t he h a d p l a n n e d 28 like the dust to l i v e out 1080713, 1080815 his at that life testified that felt there like house she f e l t but that that was n o t h i n g i n h e r house b u t t h a t there. testified "feel like a filthy as the that class " d u m p e d o n . " He t e s t i f i e d do, and t h a t s h e no l o n g e r the dust citizen" much a n y m o r e , t h a t h e f e l t " s t u c k , " money he p a i d that f o rthe property she w o u l d felt and n o i s e and that she had he had stolen been property a n d t h a t he f e l t had been safe made h i m t h a t he d i d n o t e n j o y h i s A n o t h e r homeowner t e s t i f i e d and t h a t she she c o u l d once t a k e n p r i d e Another Another and depressed, angry, upset, had changed. like from him. that the s i t u a t i o n broke her heart n o t have bought known a b o u t t h e d u s t a n d n o i s e . her property homeowners testified t h a t t h e y were f r u s t r a t e d and u p s e t by t h e s i t u a t i o n . Another homeowner t e s t i f i e d She in also my Several i f she had t h a t t h e s i t u a t i o n made h e r f e e l stated: " I feel like "filthy." a bomb h a s g o n e o f f i n my life, heart." Analysis In their brief judgment a g a i n s t verdict the should homeowners on a p p e a l , t h e homeowners them and i n f a v o r be r e v e r s e d argue the 29 that the o f I P S C O b a s e d on t h e j u r y on s e v e r a l g r o u n d s . that argue trial court Specifically, erred 1) i n 1080713, 1080815 a d m i t t i n g ADEM d o c u m e n t s i n t o e v i d e n c e ; 2 ) i n r e f u s i n g t o g i v e three of the homeowners' requested granting a JML f o r I P S C O a s t o t h e i r refusing t o submit and 5) to (Alabama), than court and those the jury. issues claims 2000), tried, I. ADEM homeowners mental-anguish IPSCO Steel before will this F i b e r s v. Long, trial qualifications likely Court the arise should again to when overrule i t s 7 7 9 S o . 2 d 198 ( A l a . s t a t e d i n Daubert I n c . , 5 0 9 U.S. 5 8 9 v. Merrell (1993). Documents The pending Isphording's the standards Dow P h a r m a c e u t i c a l s , of to the jury; i t s cross-appeal, witness i n Courtaulds and adopt damages the issue remain regarding are 3) i n that, because the claims of p l a i n t i f f s t h e homeowners as an e x p e r t decision In 8 I n c . , argues other testify t o submit charges; w a n t o n n e s s c l a i m ; 4) i n the issue of punitive i n refusing damages jury admitting evidence. "various argue that documents (Homeowners' brief, the t r i a l prepared a t 22.) court by erred [ADEM]" In their in into principal W i t h o u t c i t i n g a u t h o r i t y , t h e homeowners a l s o a r g u e t h a t t h e t r i a l c o u r t e r r e d i n d e n y i n g t h e i r m o t i o n f o r a new t r i a l . B e c a u s e t h e homeowners have f a i l e d t o a d e q u a t e l y s u p p o r t t h i s a r g u m e n t a s r e q u i r e d b y R u l e 2 8 ( a ) ( 1 0 ) , A l a . R. A p p . P., we will not consider i t . S e e , e . g . , J i m m y Day P l u m b i n g & H e a t i n g , I n c . v . S m i t h , 964 S o . 2 d 1, 9 ( A l a . 2 0 0 7 ) . 8 30 1080713, brief, ADEM 1080815 t h e homeowners d i s c u s s to Representative generally t h e J u l y 19, 2004, l e t t e r Glover; otherwise, t o documents g e n e r a t e d they brief cites their numerous p o t e n t i a l e x h i b i t s . were e i t h e r not used made a p a r t the July impossible during of the record 19, 2004, to determine homeowners c o n t e n d t h e t r i a l basis f o r any such This Court pretrial admitted. motion, which H o w e v e r , many o f t h o s e the t r i a l on a p p e a l . letter only b y ADEM a n d do n o t i d e n t i f y s p e c i f i c e x h i b i t s t h e y c o n t e n d were e r r o n e o u s l y homeowners' refer from o r , i f used, Accordingly, to Representative precisely court erred what cited exhibits were n o t other Glover, than i t documents i n admitting The the and t h e error. has s t a t e d : "It i s fundamental t h a t t h e p a r t i e s have t h e duty to include i n t h e i r b r i e f s a statement of a l l facts relevant to the issues presented for this Court's review. I n d e e d , A l a . R. A p p . P. 28 m a k e s that duty c r y s t a l c l e a r . I n i t i a l l y , the appellant's b r i e f must i n c l u d e '[a] f u l l statement of f a c t s relevant to the issues presented f o r review, with appropriate references to the record.' Rule 28(a)(7) (emphasis added). Rule 28(b) r e q u i r e s t h e a p p e l l e e to conform to the requirements of subdivision (a)(7), i f 'the appellee i s d i s s a t i s f i e d with [the] s t a t e m e n t s a s made b y t h e a p p e l l a n t . ' A l s o , t h e argument o f e a c h p a r t y must c o n t a i n ' t h e c o n t e n t i o n s of t h e [party] w i t h r e s p e c t t o t h e i s s u e s p r e s e n t e d , a n d t h e r e a s o n s t h e r e f o r , w i t h c i t a t i o n s t o t h e ... parts of the record relied on.' Rule 28(a)(10) 31 i s 1080713, 1080815 (emphasis added). Where the appellee makes no c o r r e c t i o n or a d d i t i o n to the appellant's statement of t h e f a c t s , ' [ t ] h e s t a t e m e n t s made b y a p p e l l a n t ... w i l l b e t a k e n t o b e a c c u r a t e a n d s u f f i c i e n t f o r d e c i s i o n . ' T a y l o r v. F i r s t N a t ' l Bank o f T u s k a l o o s a , 279 A l a . 6 2 4 , 628 , 18 9 S o . 2 d 141 , 144 (1 9 6 6 ) . Obviously, '"this Court i s not under a duty t o search the record i n order to a s c e r t a i n whether i t contains evidence that w i l l sustain a contention made b y e i t h e r p a r t y t o a n a p p e a l . " ' B r a n n a n & G u y , P.C. v . C i t y o f M o n t g o m e r y , 828 S o . 2 d 9 1 4 , 920 (Ala. 2002) ( q u o t i n g T o t t e n v . L i g h t i n g & S u p p l y , I n c . , 507 S o . 2 d 5 0 2 , 5 0 3 ( A l a . 1987))." Johnson v. Stewart, on 854 S o . 2 d 5 4 4 , 5 5 1 - 5 2 r e h e a r i n g ) ( f i n a l emphasis Roberts, 613 S o . 2 d 3 5 2 , 3 5 3 endeavors to technicalities, appellant's articulate avoid claim because appeal, i fthe circumstances documents admitted, that failing or 1 993) also Kirksey ("While judgments the appellant t h e c l a i m and has f a i l e d appropriate See based to parts the Court to present will refuse on o f an failed to authoritiesi n to consider of the appellant's failure the make we do s o . " ) . specify thereof which they of Accordingly, 32 the contend t h e homeowners have f a i l e d t h e y r a i s e on a p p e a l . has v. the Court when t h e C o u r t c a n n o t d i s c e r n t h e m e r i t s of the claim, By (Ala. affirming support it added). (Ala. 2 0 02)(opinion numerous were to articulate except for t h e i r ADEM erroneously the issues arguments 1080713, 1080815 regarding the July Representative the Glover, requirements Court will not the documents trial Glover, among while other the motion limine in documents granted use could the documents, Under necessary to identical to a P., and this Representative of other information. letter the motion the documents. granted only in offered. only as to to documents these App. with arguments. letter been the complied to The the homeowners' m o t i o n i n l i m i n e obligation of ADEM o b j e c t t o IPSCO's use nearly been have the eliminated. to to Had its the the specified object for limited no trial use such court of the trial to the purpose at any circumstances, extent homeowners' entirety, Because the a Representative was not a renewed objection when t h e d o c u m e n t s a r e o f f e r e d d u r i n g t r i a l . Owens-Corning F i b e r g l a s s Corp. 1994)("An to of motion admissibility motion 2004, things, granting concerning (Ala. 19, included A l a . R. homeowners' court generally denied directed, is the July from homeowners have not homeowners d i d not that letter 28(a)(10), consider the 2004, the of Rule Regarding Glover, 19, a p p e l l a n t who exclude evidence, v. James, s u f f e r s an made 33 in 646 So. adverse 2d See 669, ruling limine, preserves 673 on a this 1080713, 1080815 adverse r u l i n g he o b j e c t s assigns f o r post-judgment and a p p e l l a t e to the introduction of the proffered specific grounds unless he h a s o b t a i n e d court that proffered subsequent at t r i a l therefor o f ADEM's from letter was samples identified, a state do t h i s . not going responded, that of a colloquy were and t h a t to error regard at t o an u n s p e c i f i e d counsel noted i n the admission that the i t related that locations could n o t be o f an a p p r o v a l stated, to of then that letter t o be r e a d , buti t ' s The homeowners' counsel jury." to brief. two that We d e c l i n e t o s p e c u l a t e related were court to allow the to the Representative Glover--there scientist, i ti s are not relevant with i t had "the imprimatur " A l l right." objection a The t r i a l I'm g o i n g back by taken homeowners' p r i n c i p a l any with t h e homeowners' not signed trial correspondence to Representative agency." when evidence objection during which that of the t r i a l to ADEM letters--in of the t r i a l , and assignment o f grounds t h e r e f o r admissibility letter evidence and acquiescence objection The o n l y consisted a t the time the express necessary."). Glover review only i f the letter We t h e r e f o r e of the letter 34 "I'm g o i n g t o as t o w h e t h e r discussed i n the cannot conclude was p r e s e r v e d that i n the 1080713, trial II. 1080815 court. The J u r y Instructions The h o m e o w n e r s n e x t c o n t e n d t h a t t h e t r i a l refusing to i n s t r u c t requested instructions. requested that following quote Borland t h e j u r y as t o t h r e e the t r i a l from v. Sanders a headnote instruct to this erred i n o f t h e homeowners' Specifically, court court the homeowners the j u r y using the Court's decision i n L e a d C o . , 369 S o . 2 d 5 2 3 , 523 ( A l a . 1979): "Compliance w i t h Alabama A i r P o l l u t i o n C o n t r o l A c t d i d n o t s h i e l d l e a d company f r o m l i a b i l i t y f o r damages caused by pollutants, i.e., lead p a r t i c u l a t e s and s u l f o x i d e d e p o s i t s , e m i t t i n g from i t s s m e l t e r and s e t t l i n g onto p l a i n t i f f s ' adjacent p r o p e r t y , making i t u n s u i t a b l e f o r r a i s i n g c a t t l e or growing crops." The h o m e o w n e r s a l s o a s k e d t h e t r i a l using the opinion in following quote from court the to instruct body of this the j u r y Court's Borland: "The A l a b a m a A i r P o l l u t i o n Control Act i s c o d i f i e d a t § 2 2 - 2 8 - 1 , e t s e q . , A l a b a m a Code 1 9 7 5 . [Section] 22-28-23[(a)], Alabama Code 1975, s p e c i f i c a l l y provides: "'(N)othing i n this section shall be c o n s t r u e d t o l i m i t o r a b r o g a t e any p r i v a t e r e m e d i e s now a v a i l a b l e t o a n y p e r s o n f o r the alleviation, abatement, control, c o r r e c t i o n or prevention of a i rp o l l u t i o n Or restitution for damage resulting therefrom.' (Emphasis added.) 35 1080713, 1080815 " A l a b a m a l a w c l e a r l y p r o v i d e s an a p p r o p r i a t e r e m e d y f o r P l a i n t i f f s who h a v e b e e n d i r e c t l y i n j u r e d by t h e d e l e t e r i o u s e f f e c t s o f p o l l u t a n t s c r e a t e d by another party's acts." 369 So. court 2d to at 526. instruct Borland i n which Inc., in § 293 turn 158 the 59, 300 comments (1965), jury the to homeowners using t h i s Court quoted A l a . 56, the Finally, So. 2d the the following R u s h i n g v. 94, asked 97 Restatement the trial quote from Hooper-McDonald, ( A l a . 1974), (Second) quoting of Torts stating: "'"In o r d e r t h a t t h e r e may be a t r e s p a s s u n d e r the r u l e s t a t e d i n t h i s S e c t i o n , i t i s not n e c e s s a r y t h a t t h e f o r e i g n m a t t e r s h o u l d be t h r o w n d i r e c t l y and i m m e d i a t e l y upon t h e o t h e r ' s l a n d . I t i s enough t h a t an a c t i s d o n e w i t h k n o w l e d g e t h a t i t w i l l t o a s u b s t a n t i a l c e r t a i n t y r e s u l t i n the e n t r y of the foreign matter."'" 369 So. On trial 2d at 527. November 14, 2008, court refused these before instructing instructions, the jury, the stating: " [ T ] h e y a r e no d o u b t c o r r e c t s t a t e m e n t s o f w h a t t h e law i s , but t h e y are t e c h n i c a l d i s c u s s i o n s of the l a w a n d I d o n ' t t h i n k t h e y a r e -- I t h i n k t h e y a r e c o v e r e d i n some o f t h e o t h e r c h a r g e s , s u c h a s t h e f a c t t h a t the a c t i s l e g a l does not keep i t from being a nuisance. I think that's covered. And t h e o t h e r s seem t o be m o r e d e m o n s t r a t i v e o f t h a t . " The homeowners did not state 36 any objections to the trial 1080713, court's in 1080815 refusal Borland at that After the Borland charges v. court stated: or r e f u s a l requested three Sanders i n s t r u c t i o n s b a s e d on language time. the t r i a l homeowners failure of these instructed "[Homeowners] the jury, except to give [homeowners'] that I quoted Lead Company." from counsel f o r to the ... court's three proposed excerpts from However, c o u n s e l J.H. f o r the homeowners d i d n o t s t a t e any g r o u n d s f o r h i s e x c e p t i o n and, i n fact, did not instructions. jury, Before the t r i a l arguments occurred raise that between homeowners on the arguments regarding those s u b m i t t i n g t h e homeowners' c l a i m s t o t h e court were any i n c o r p o r a t e d by r e f e r e n c e made i n a l l of counsel for previous IPSCO day. the " a l l of the discussions" and counsel However, the that f o r the reporter's t r a n s c r i p t o f t h e a r g u m e n t s t h a t o c c u r r e d on t h e p r e v i o u s d a y , N o v e m b e r 1 3 , 2 0 0 8 , show t h a t c o u n s e l f o r t h e h o m e o w n e r s proffered the proposed instructions from Borland merely and d i d n o t r a i s e any s p e c i f i c o b j e c t i o n s o r arguments r e g a r d i n g t h e t r i a l c o u r t ' s use or r e f u s a l homeowners transcript. cite t o use them. In t h e i r t o p a g e s 1576 t h r o u g h However, those pages 37 r e p l y b r i e f , the 1578 o f t h e r e p o r t e r ' s record the homeowners' 1080713, 1080815 arguments regarding other refused the c o u r t ; they by regarding Rule trial of their do proposed not instructions record any arguments Borland. 51, Ala. R. Civ. P., states, in part: "No p a r t y may a s s i g n as e r r o r t h e g i v i n g o r f a i l i n g t o g i v e a w r i t t e n i n s t r u c t i o n , o r t h e g i v i n g o f an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to c o n s i d e r its verdict, s t a t i n g the matter o b j e c t e d t o and the grounds of the o b j e c t i o n . " (Emphasis added.) Rule 51 The C o m m i t t e e Comments on 1973 Adoption of explain: " U n d e r t h i s r u l e , t h e p a r t y m u s t , as a c o n d i t i o n t o t h e r i g h t t o a s s e r t e r r o r on a p p e a l , object and s t a t e grounds t h e r e f o r b e f o r e the j u r y r e t i r e s . ... fi "... G r o u n d s m u s t be stated i n other than g e n e r a l terms but the requirement of 'distinctly' s t a t i n g g r o u n d s as i s r e q u i r e d b y t h e F e d e r a l Rule, has not b e e n preserved." (Emphasis Based his on Rule a r g u m e n t as have: (1) verdict; (3) added.) to the objected (2) 51, stated this has stated: jury instruction, before the Court preserve [the a p p e l l a n t ] the jury retired matter that he was s u p p l i e d the grounds f o r h i s o b j e c t i o n . " 38 "[T]o to consider objecting Ware v . to; must its and Timmons, 1080713, 1080815 954 2d 545, 558 requirement, this Court So. (Ala. 2006). i n Ware Regarding the third explained: " ' R e q u i r i n g a p a r t y to s t a t e to the t r i a l court the grounds f o r h i s o b j e c t i o n to a j u r y i n s t r u c t i o n a f f o r d s t h e t r i a l c o u r t an o p p o r t u n i t y t o c o r r e c t any e r r o r i n i t s c h a r g e b e f o r e i t becomes e r r o r w i t h i n j u r y t o r e v e r s a l . ' C o l e m a n v . T a b e r , 572 So. 2d 3 9 9 , 402 ( A l a . 1990). A c c o r d i n g l y , '[g]rounds must be s t a t e d i n o t h e r t h a n g e n e r a l t e r m s . ' R u l e 51, Ala. R. Civ. P., Committee Comments on 1973 Adoption. 'Although R u l e 51 d o e s n o t contemplate t h a t the o b j e c t i n g p a r t y , i n order to p r e s e r v e for a p p e l l a t e r e v i e w an e r r o n e o u s i n s t r u c t i o n , deliver a d i s c o u r s e on t h e a p p l i c a b l e l a w o f t h e c a s e , he must adequately state specific grounds for his o b j e c t i o n . ' M c E l m u r r y v . U n i r o y a l , I n c . , 531 So. 2d 859, 859-60 ( A l a . 1 9 8 8 ) . " Ware, 954 not at 559. i s apparent It So. from stated with objections jury to instructions appeal give Gulf III. any regarding Accordingly, for 2d The record specificity on court's homeowners grounds the from Borland. the homeowners have not preserved Harbert language the t r i a l instructions. Int'l, Wantonness 608 So. 2d give court's See, 348, to their on jury failure for have based Borland the the the trial t h e i r arguments r e g a r d i n g the that the u n d e r R u l e 51, S h o r e s v. JML the e.g., 352 the refusal City of (Ala. 1992). Claims homeowners n e x t c o n t e n d t h a t the 39 trial court erred in 1080713, 1080815 entering a state by that "[w]antonness t h e mere invasion So. JML o n t h e i r 2d knowledge wantonness i n a trespass on t h e p a r t of the p l a i n t i f f ' s 8 1 , 82 rights." ( A l a . 1991) . 4 0 5 S o . 2 d 1 4 1 , 146 ( A l a . Co. Pass, Birmingham (1913). 393 Realty So. Co., 2d They action i s established ofh i s Cummans v . D o b b i n s , 5 7 5 W.T. Ratliff 1981); C a l v e r t 9 5 5 , 957 correctly of the defendant See a l s o Henley, v. claim. (Ala. 183 A l a . 444 , & Marsh 1 980 ) ; 4 5 0 , 63 Co. v . Ex So. Coal parte 6 7 , 69 This Court has s t a t e d : "When r e v i e w i n g a r u l i n g o n a m o t i o n f o r a J M L , t h i s C o u r t u s e s t h e same s t a n d a r d t h e t r i a l court used i n i t i a l l y i n d e c i d i n g whether t o g r a n t o r deny the m o t i o n f o r a J M L . P a l m H a r b o r Homes, I n c . v . Crawford, 689 S o . 2 d 3 ( A l a . 1997 ) . Regarding q u e s t i o n s o f f a c t , t h e u l t i m a t e q u e s t i o n i s whether the nonmovant has p r e s e n t e d s u f f i c i e n t e v i d e n c e t o a l l o w t h e c a s e t o be s u b m i t t e d t o t h e j u r y f o r a factual resolution. C a r t e r v . H e n d e r s o n , 598 S o . 2 d 1350 ( A l a . 1 9 9 2 ) . The n o n m o v a n t m u s t h a v e p r e s e n t e d s u b s t a n t i a l evidence i n order t o w i t h s t a n d a motion for a JML. See § 1 2 - 2 1 - 1 2 , A l a . Code 1 9 7 5 ; West v . F o u n d e r s L i f e A s s u r a n c e C o . o f F l o r i d a , 547 S o . 2 d 870, 871 ( A l a . 1989). A reviewing court must d e t e r m i n e w h e t h e r t h e p a r t y who b e a r s t h e b u r d e n o f p r o o f has produced s u b s t a n t i a l evidence c r e a t i n g a f a c t u a l d i s p u t e r e q u i r i n g r e s o l u t i o n by t h e j u r y . C a r t e r , 598 S o . 2 d a t 1 3 5 3 . I n r e v i e w i n g a r u l i n g o n a m o t i o n f o r a JML, t h i s C o u r t v i e w s t h e e v i d e n c e i n the light most favorable t o t h e nonmovant and e n t e r t a i n s such r e a s o n a b l e i n f e r e n c e s as t h e j u r y would have been free t o draw. I d . Regarding a q u e s t i o n o f l a w , h o w e v e r , t h i s C o u r t i n d u l g e s no p r e s u m p t i o n o f c o r r e c t n e s s as t o t h e t r i a l court's 40

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