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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 3, 2003
Charles R. Fulbruge III
Clerk
For the Fifth Circuit
No. 02-40569
H E STEVENSON, ET AL,
Plaintiffs,
H E STEVENSON, DIANNA STEVENSON, AND SHARON HARPER,
Plaintiffs-Appellees,
VERSUS
E I DUPONT DE NEMOURS AND COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Victoria
Before DeMOSS and STEWART, Circuit Judges, and FALLON, District
Judge.1
DeMOSS, Circuit Judge:
Before the Court is the appeal of Defendant-Appellant E. I.
1District Judge of the Eastern District of Louisiana,
sitting by designation.
1

DuPont De Nemours & Co. ("DuPont") from a jury verdict finding the
defendants liable for trespass on the Plaintiffs-Appellees'
property. The Plaintiffs-Appellees in this case are H. E.
Stevenson, Dianna Stevenson, and Sharon Harper (referred to
collectively as "Plaintiffs"). Carried with DuPont's appeal is the
Plaintiffs' motion for recovery of damages and costs under F.R.A.P.
38. The Plaintiffs brought suit against DuPont alleging that its
Victoria, Texas, plant emits heavy metal particulates, which
contaminated the Plaintiffs' properties located nearby and affected
their health as well as the health of their animals. Their
theories of recovery included negligence, nuisance, and trespass.
Following a six-day jury trial, the jury found for the Plaintiffs
only on the trespass theory and awarded the Stevensons $168,000 and
Harper $96,000 in damages for the diminished value of their
property.
DuPont appeals challenging the sufficiency of the evidence of
the jury verdict. It contends first that, as a matter of law, the
Plaintiffs cannot recover for trespass based on contamination by
airborne particulates. Second, appellant asserts that the
Plaintiffs' evidence of causation was insufficient to show that
DuPont's factory emissions actually contaminated the Plaintiffs'
properties. Finally, it alleges that the Plaintiffs presented
insufficient evidence regarding damages for the diminution of
property values.
Plaintiffs, in response, have moved for damages and costs as
2

a result of a frivolous appeal. Specifically, the Plaintiffs
contend that DuPont's challenges regarding the causation evidence
are actually Daubert challenges regarding the admissibility of the
evidence, and, because the defendant waived its Daubert challenge
during a hearing on the matter, this Court cannot now review these
findings. Second, Plaintiffs argue that DuPont's point of error on
evidence of a temporary trespass as opposed to permanent trespass
was waived when DuPont failed to request that the Court submit such
an issue to the jury.
For the reasons set forth below, we AFFIRM the district
court's denial of DuPont's motion for judgment as a matter of law.
We REVERSE the jury's award for damages, and REMAND for a new trial
on damages.
BACKGROUND & PROCEDURAL HISTORY
H. E. and Dianna Stevenson purchased 28 acres of land in
Victoria, Texas in 1970 or 1971. Mr. Stevenson built a house on
the property, and the family moved into that house in 1976. Mr.
Stevenson used the property primarily to raise race horses. Sharon
Harper purchased 16 acres of land approximately a block to block-
and-a-half from the Stevensons' property in 1982. She resides in
a house on the property, along with her daughter, who lives in a
separate house on the property. During her time on the property,
she raised cows, horses, goats, chickens, and various other
animals.
3

DuPont opened a petrochemical plant in Victoria, Texas, in
1951. The plant is approximately one and one-half miles from the
Plaintiffs' properties, which are the closest lands to the plant.
The plant produces "intermediate products" for shipping to offsite
customers. Throughout its operation, the plant has emitted heavy
metals as a result of burning hazardous waste. The emissions from
the factory contain barium, cerium, chromium, copper, lead,
manganese, and zinc.
In January 2001, the Plaintiffs filed suit against DuPont for
contamination of their person, property, and livestock. Their
theories of recovery were negligence, nuisance, and trespass.
During the trial,2 James Miller, DuPont's environmental consultant,
testified as the employee most knowledgeable about the air
emissions from the stacks. He admitted that all air dispersion
reports, including DuPont's, showed that the Plaintiffs' properties
were within the maximum level of impact for emissions from DuPont's
factory. This dispersion modeling showed that the emissions were
most heavily concentrated in the air over the Plaintiffs'
properties.
Michael Stringer was offered as the Plaintiff's expert on soil
sampling. He collected samples from the Stevensons' property,
2Various testimony was heard during the trial regarding the
health effects of the contamination on the Plaintiffs and their
animals. However, the jury found in favor of the defendant on
these issues, and this part of the verdict is not before this
Court on appeal. Accordingly, discussion of this testimony is
omitted.
4

including a sample of dirt from their roof, and he also collected
soil samples from DuPont's plant and from a background source about
25 to 30 miles from the plant. He testified that concentrations of
heavy metallic particles were higher on the Stevensons' property
than on the DuPont's property and much higher than on the
background property. Further, the types of metals found on the
ground matched those emitted by DuPont. Dr. Edwin Smith also
testified for the Plaintiffs regarding soil and roof samples taken
from the Stevensons' property. He opined that the metallic
concentrations on the roof were higher than the concentrations on
the ground, indicating that the cause of the contamination was
airborne in nature. No soil samples were taken from Mrs. Harper's
property, and Stringer testified that he did not analyze the
samples collected on her roof because it was metallic and would
contain metallic particles anyway.
Mr. Stevenson testified that he had continuous upkeep problems
at his house because the paint would keep peeling off, and his
window screens continually corroded. Sharon Harper testified that
she had continuous rust problems on her roof and pipe fence, with
the worst corrosion being on the side facing the DuPont factory.
To prove damages, the Plaintiffs offered the testimony of John
Fox, a real estate appraiser. Fox based his opinion solely on a
letter provided by the executive director of the Port of Victoria
Industrial Park regarding the range of prices available for land in
the same area as the Plaintiffs. The letter stated that property
5

in the area sold for approximately $10,000 to $15,000 per acre.
Fox then "placed that same range on the Stevenson property, which
would be 10 to 15,000 per acre." He then applied the same range to
value Mrs. Harper's property. The defendant's expert conducted an
appraisal of the properties in this case and concluded that the
Fox's appraisal should be discounted approximately 40 percent.
At the conclusion of the trial, the jury returned a partial
verdict in the Plaintiffs' favor. The jury found that DuPont was
not negligent, and that its actions did not constitute a nuisance.
The jury did find that a trespass had occurred on the Plaintiffs'
lands, but did not find that the trespass was willful or wanton.
The jury further denied recovery for the Plaintiffs' physical pain
and mental anguish as well as for injury to their animals, but the
jury did award the Stevensons $168,000 and Harper $96,000 for "the
difference in the market value of the property . . . immediately
before and after the damage . . . proximately caused by DuPont's
operation of the Victoria Plant."
The District Court entered judgment in favor of the Stevensons
and Harper in these amounts. DuPont promptly moved for a new trial
and judgment as a matter of law, and the District Court denied the
motions. DuPont then timely appealed to this Court to review the
sufficiency of the evidence.
6

DISCUSSION
I.
Whether the district court erred in denying DuPont's motion
for judgment as a matter of law.
This Circuit reviews de novo the district court's ruling on
a motion for judgment as a matter of law. See Cozzo v. Tangipahoa
Parish Council-President Government, 279 F.3d 273, 280 (5th Cir.
2002). However, when an action is tried by a jury, such a motion is
a challenge to the legal sufficiency of the evidence supporting the
jury's verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th
Cir. 2000). Accordingly, the Court should consider the evidence
"drawing all reasonable inferences and resolving all credibility
determinations in the light most favorable to the non-moving
party." Id. Furthermore, the Court's "standard of review with
respect to a jury verdict is especially deferential." Id. Thus,
reversal is proper "only if no reasonable jury could have arrived
at the verdict." Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.
1998).
DuPont argues that a trespass traditionally requires a direct
and physical invasion by tangible matter onto another person's
property, while a cause of action for nuisance requires a showing
of indirect invasion and intangible intrusion. DuPont relies on
Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215 (Mich. Ct. App.
1999), to support its claims that the intrusion of airborne
particles onto Plaintiff's land does not constitute a trespass.
7

Adams, a Michigan case, declined to follow recent Michigan case law
expanding the tort of trespass and held that the invasion of dust
particles was not sufficient evidence of trespass because these
particles do not present a "significant physical intrusion." Id.
at 223. Defendant contends that this traditional view of trespass
law would preclude Plaintiffs' recovery.
The current case law that Adams rejected in reaching its
decision does hold that a trespass occurs when particulate matter
is present on another's property; however, those cases also modify
"traditional" trespass law by requiring "substantial damage to the
res." J. H. Borland v. Sanders Lead Co., 369 So. 2d 523, 530 (Ala.
1979). See also Bradley v. American Smelting & Refining Co., 709
P.2d 782, 791 (Wash. 1985) (adopting the holding of Borland
requiring substantial damage for trespass caused by airborne
particulates). DuPont relies on Borland, an Alabama case, and
Bradley, a Washington state case, to suggest the modern view of
trespass law would support the cases of the Stevensons and Harper,
but would require a showing of substantial damage.
DuPont admits that Texas courts have not decided this
particular issue. However, it contends that under either theory,
the Plaintiffs cannot recover in this case. Under the old theory,
the injury must be direct and tangible, which precludes recovery
because the airborne particles are neither direct nor tangible.
Further, under the new theory, the Plaintiffs have failed to
8

establish the substantial damage requirement. Significantly,
however, the defendant cannot point to any Texas case specifically
adopting these requirements. DuPont argues that Texas courts have
adopted the substantial damage requirement, but the cases it relies
on in support of that contention involved situations in which the
state had set the minimum levels of damage necessary to maintain a
cause of action in trespass. See, e.g., Taco Cabana, Inc. v. Exxon
Corp., 5 S.W.3d 773, 780 (Tex. Ct. App.-San Antonio 1999, writ
denied) (holding that because the Plaintiff did not prove
contamination above state action levels, recovery for trespass was
not possible); Z.A.O., Inc. v. Yarbrough Drive Center Joint
Venture, 50 S.W.3d 531, 543-44 (Tex. Ct. App.-El Paso 2001, no
writ) (same). In this case, there is no assertion that Texas law
sets the required levels of contamination necessary for recovery by
the Plaintiffs. Thus, the Plaintiffs were not required to show
substantial damage to their property.
DuPont's arguments also fail because this Court is required to
apply the law of Texas as it currently stands. The Texas Supreme
Court set forth the following definition of trespass with its
decision in Railroad Comm'n of Texas v. Manziel, 361 S.W.2d 560
(Tex. 1962): "To constitute trespass there must be some physical
entry upon the land by some 'thing.'" Id. at 567. Research shows
no Texas cases adopting a "direct and tangible" requirement to
prove trespass. Because the only showing necessary is entry over
9

land by some "thing," Texas law would permit recovery for airborne
particulates.
II.
Whether sufficient evidence was presented to the jury to prove
that the emissions from DuPont deposited heavy metal particulates
on the Plaintiffs' properties.
DuPont first attacks the methodology used by Plaintiffs' air
modeling expert, Johnny Sanders. It contends that his methods were
not sufficiently reliable to determine that the concentrations of
metals would move from DuPont's property to the Plaintiffs'
properties. DuPont cites several examples of his testimony to show
that it is unreliable. First, it points out that Sanders did not
do any depositional modeling, which would have confirmed whether
the particles actually landed on the Plaintiffs' properties.
Second, DuPont asserts that Sanders used improper data in reaching
his calculations and that he disregarded the actual data he was
given by DuPont. Third, Sanders' testimony had mathematical
errors, which skewed his analysis.
DuPont also contends that Plaintiffs' experts Stringer and
Smith were not reliable when they testified regarding the presence
of heavy metals on the Plaintiffs' properties. First, DuPont
points out that Dr. Smith's analysis of the soil sample was
improper because it was delivered to him by the Stevensons, who did
not create a chain of custody document for the sample. Second,
DuPont argues that Dr. Smith failed to inquire or determine whether
the metals could have come from any alternative sources. Finally,
10

DuPont points out that Stringer only tested two soil samples from
the Stevensons' property.
Plaintiffs contend first that DuPont lost its right to
challenge the reliability of its expert testimony when it waived
its Daubert challenges during a hearing on the admissibility of
expert testimony. Plaintiffs characterize defendant's arguments as
challenges to the admissibility of the evidence disguised as
challenges to the sufficiency of the evidence. Its arguments,
however, on this point are not persuasive. Although DuPont lost
the right to challenge the admissibility of the evidence, it did
not lose the right to challenge the sufficiency of the evidence.
In In re Joint Eastern & Southern District Asbestos
Litigation, 52 F.3d 1124 (2d Cir. 1995), the Second Circuit
thoroughly examined the interaction between the standards
enunciated in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), and the sufficiency of the evidence. Plaintiffs in the
asbestos litigation sought damages for colon cancer allegedly
caused by asbestos products manufactured by the defendants. The
jury found in favor of the Plaintiff, and the defendant promptly
moved for judgment as a matter of law. The district court granted
the motion and set aside the jury verdict finding that the
Plaintiff's epidemiological evidence was insufficient to support a
causal connection between asbestos and colon cancer.
The Second Circuit reversed finding that the district court
11

had improperly taken the case away from the jury and overstepped
its role as contemplated by Daubert. Id. at 1126. The court noted
that a sufficiency inquiry asks whether the collective weight of a
litigant's evidence is adequate to present a jury question. Id. at
1132. Further, the court found that Daubert did not change the
traditional role of a sufficiency inquiry, but only expanded the
trial court's role regarding the admissibility of expert evidence.
Id. The court quoted the following passage from Daubert to
illustrate the proper method of attacking questionable-but-
admissible expert evidence: "`[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof'" are the traditional and appropriate means of
attacking shaky but admissible evidence. Id. at 1132 (quoting
Daubert, 509 U.S. at 599).
Following these guidelines, this Court may review the record
to determine the sufficiency of the evidence; the defendant's
waiver of any challenges to the admissibility of the expert
testimony does not preclude such a sufficiency review by this
Court. Defendant properly preserved its rights to challenge the
sufficiency of the evidence when it moved for a judgment as a
matter of law in the trial court. However, as we noted above, this
Court must draw all inferences from the evidence in favor of the
Plaintiffs. Brown, 219 F.3d at 456.
As noted above, the testimony of all air modeling experts in
12

this case, including DuPont's expert, James Miller, showed that the
Plaintiffs' properties were in the area showing the heaviest
concentration of DuPont's emissions. Thus, the defendant's
arguments regarding discrepancies or improper modeling techniques
in Sanders' opinions and testimony is not persuasive. His
testimony is supported by that of the other experts in the case.
DuPont correctly points out that the air modeling testimony
only showed that the airborne particulates were in the air over
Plaintiffs' properties, not that it actually landed on the ground.
However, the testimony of Dr. Smith and Mr. Stringer established
that point. Their testimony showed higher-than-normal levels of
metallic particulates on the Plaintiffs' property; the metals found
on Plaintiffs' land also matched the metals known to be emitted by
DuPont's factory. Further, Dr. Smith opined that because the
concentrations on the Stevensons' roof were higher than the
concentrations on the ground, the contamination was airborne in
origin. A jury could reasonably infer that the particles on the
ground were from DuPont's factory because the Stevensons' property
was in the area most heavily covered by the airborne particulates.
DuPont argues that Dr. Smith's testimony was improper because
he analyzed only a single sample, and no chain of custody was
created. DuPont never objected to the admission of this testimony,
and the record shows that DuPont's counsel adequately cross-
examined Dr. Smith on his techniques. DuPont's challenges go to
the weight of the evidence, and this Court should defer to the
13

jury's findings that this testimony indicated the particular
result.
DuPont also asserts that the Plaintiffs failed to present any
evidence showing the background levels of heavy metal particulates
in the air before the wind reached the DuPont factory. Further, it
contends that the Plaintiffs' experts started with the conclusion
that the contamination came from the DuPont factory and crafted
their testimony to justify that. This argument fails again,
however, because DuPont's own evidence showed that its emissions
were most heavily concentrated over the Plaintiffs' properties.
The jurors were not required to rule out all other potential
causes, only to find that the defendant's emissions more probably
than not landed on the Plaintiffs' lands. Thus, the jury's
findings have a basis in fact.
DuPont's final point concerns the findings of trespass with
respect to Harper's property. It is true that no soil or roof
samples were tested from her land. However, Harper herself
testified that she had to replace a metal roof because of
corrosion, and she testified that her metal fence was heavily
corroded. In both cases, the evidence showed that the rust and
corrosion was heaviest on the side of the land facing the DuPont
property. Harper's testimony was consistent with the Stevensons'
testimony regarding the effects of corrosion. Drawing the
inferences in favor of the Plaintiffs, and noting that they were
neighbors, it was reasonable for the jury to conclude that if
14

DuPont's contamination affected the Stevensons, it also affected
Harper. Thus, there is an evidentiary basis for finding a trespass
on the Harper property.
In conclusion, the evidence presented at trial supports a
finding of trespass on the Plaintiffs' properties. Testimony
showed that the emissions from DuPont's factory were most heavily
concentrated over the Plaintiffs' property and that their property
showed evidence of heavy metal contamination that was most likely
airborne in nature. Accordingly, the jury could reasonably infer
that a trespass was committed, and the jury's findings is affirmed.
III. Whether the evidence presented was sufficient to justify the
award of damages.
DuPont raises two issues on appeal regarding the jury's award
of damages. First, it contends that no evidence was presented to
determine whether the trespass was permanent or temporary in
nature. If a permanent trespass occurred, the Plaintiffs could
recover "the difference in the market value of the land immediately
before and immediately after the trespass." Porras v. Craig, 675
S.W.2d 503, 504 (Tex. 1984). Recovery for temporary trespass is
limited to the "amount necessary to place the owner of the property
in the same position he occupied prior to the injury." Kraft v.
Langford, 565 S.W.2d 223, 227 (Tex. 1978).
DuPont argues that the Plaintiffs should have presented
evidence that the trespass was permanent or that the pollution
could have been removed from the Plaintiffs' properties to restore
15

that property to its previous condition. However, that is not the
burden placed on a Plaintiff claiming trespass. In Sadler v.
Duvall, 815 S.W.2d 285 (Tex. Ct. App.-Texarkana 1991, writ denied),
the court held that "in absence of proof that repair is actually or
economically feasible, the injury may be deemed permanent." Id. at
292. In this case, DuPont neither presented any evidence to
support a temporary trespass, nor requested a jury charge on such
an issue. Accordingly, it was not error for the jury to consider
only damages for permanent trespass.
DuPont's second issue with respect to damages is that the
evidence was insufficient to support the damages awarded. The
Stevensons were awarded $168,000, and Sharon Harper was awarded
$96,000; this amounts to an award of $6,000 per acre for each
Plaintiff. The jury form stated that these damages were given for
the "difference in the market value of the property . . .
immediately before and immediately after the damage." As noted
above, the Porras court held that this is the proper standard for
the measurement of damages from permanent trespass.
The Plaintiffs again argue that DuPont waived its right to
challenge any expert testimony regarding damages. However, as
noted above, this argument goes only to admissibility of the
evidence and does not affect consideration of the sufficiency of
the expert's testimony to support the jury's verdict.
The Plaintiffs' only proof as to the value of their properties
16

was the testimony of John Fox, who opined that the value of the
properties was between $10,000 to $15,000. Plaintiffs' brief
characterizes Fox's testimony as showing the value of the property
without pollution. The Plaintiffs also argue that their land is
now worthless because they so testified. DuPont argues that the
Plaintiffs description of Fox's testimony is misleading. DuPont
contends that Fox valued the property as of the present time,
including any possible contamination by DuPont. As to the
Plaintiffs' valuation of their own properties, DuPont contends that
its testimony is simply inconsistent with that of Fox, who
testified as to the properties' values.
A review of the record does not support Plaintiffs'
characterization of Fox's testimony. He never testifies that his
values were for the property without any pollution. Fox's
testimony discussed the value of the property in an industrial
area, but he never mentioned that some properties were valued
differently because of any potential pollution problems.
Accordingly, Plaintiffs' arguments are without merit. Furthermore,
Plaintiffs describe DuPont's expert's 40 percent discount as based
on industrial factors. DuPont's expert only adjusted the value to
note the value of residential improvements due to external
obsolescence. Again, Fox never mentioned that these values assumed
no pollution had occurred.
In any event, neither method is a proper method of calculating
damages. Texas law is very clear that the proper measure of
17

damages for permanent trespass is "the difference in the market
value of the land immediately before and immediately after the
trespass." Porras, 675 S.W.2d at 504. Here, the jury was
presented with testimony about only one value for the property. No
evidence was presented to show the value of the land before the
trespass began. As such, the jury could not reasonably have
awarded the damages it did in this case.
In these circumstances, "[t]he court has discretion to order
a new trial rather than judgment as a matter of law when the defect
in the nonmoving party's proof might be remedied at a second
trial." Bradley v. Armstrong Rubber Co., 130 F.3d 168, 178 (5th
Cir. 1997). We hold that the damages award, therefore, should be
vacated and the case remanded for a new trial on damages.
IV.
Whether DuPont's appeal should be dismissed as frivolous.
In addition to DuPont's appeal, the Plaintiffs have also filed
a Motion for Recovery of Damages and Costs for Frivolous Appeal
Under F.R.A.P. 38. Further, Plaintiffs have also moved to strike
DuPont's response to the motion as untimely. First, without
undertaking a lesson in applying F.R.A.P. 27 and F.R.A.P. 26(c), we
note that DuPont's response was timely filed. Second, regardless
of whether DuPont's response was timely, we must still address
Plaintiffs' motion. The motion is predicated on two arguments:
(1) DuPont cannot appeal the trial court's findings regarding
admissibility of evidence, even when couched in terms of an appeal
18

on the sufficiency of the evidence; and (2) DuPont cannot appeal
the district court's failure to give an instruction on temporary
trespass when it failed to preserve the right on appeal.
As to the first point, a distinction exists between the
admissibility of the evidence and its sufficiency to sustain a jury
verdict. This point was addressed above. Plaintiffs arguments do
not solely address the reliability of the evidence or its
admissibility. Although some of their arguments concern
reliability, their briefs, taken as a whole, argue specific facts
in the testimony, not just the reliability or admissibility of the
testimony. Finally, this Court only rarely finds an appeal to be
frivolous. See, e.g., Sturgeon v. Airborne Freight Corp., 778 F.2d
1154, 1161 (5th Cir. 1985). For example, in Stelly v.
Commissioner, 761 F.2d 1113 (5th Cir. 1985), the Court held an
appeal frivolous only because a great weight of the authority in
the case was clearly on point and did not favor the Plaintiff. Id.
at 1116. This is not one of those cases. This Court has
previously and repeatedly denied points of error because the
appellant failed to preserve the issue in the court below. In
those instances, the Court merely denied the appeal without a
finding of frivolity. This case should be no different.
Finally, because this Court is reversing the judgment as to
damages, this Court cannot find that the appeal was frivolous. The
reversal is a clear indication that the appeal has merit.
19

Therefore, the motion for damages and costs is denied.
CONCLUSION
Based on the foregoing discussion, DuPont's point of error
regarding the proper definition of trespass and its arguments
concerning the sufficiency of the evidence to support a finding of
trespass are without merit, and the district court's denial of the
judgment as a matter of law and the jury's findings of trespass are
AFFIRMED. However, the Plaintiffs did not carry their burden of
proving damages because they failed to prove the value of the land
before the trespass. Accordingly, we REVERSE on this point and
REMAND for a new trial on the damages sustained by the Plaintiffs.
Because we find that the damages were not properly proved, this
appeal cannot be frivolous, and the Plaintiff's motion is DENIED.
AFFIRMED in part, REVERSED in part, and REMANDED.
20