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Tuesday, June 23, 2009

Ind. Decisions - 7th Circuit decides one Indiana case today

Cunningham v. Masterwear Corp (SD Ind. Judge MCKinney) is a 7-page opinion involving the Cunningham's, whose photographic studio and later living quarters were located "next door to a building that until 1991 had contained a dry-cleaning business operated by defendant Masterwear." Judge Posner continues:

In December 2003, the EPA warned them that their building contained perchloroethylene (PCE) vapors in a concentration of 200 parts per billion and that “this amount of the compound could be significant and pose a health concern over the long term.” The vapors were apparently the result of improper storage of chemicals by Masterwear. Upon receiving the letter the plaintiffs moved out of the building and put it up for sale. (It was sold the following year.) They claim not to have had the symptoms of which they complain before they lived in the building and that after they moved out the symptoms diminished.

They seek damages both for the damage to their health and for what they contend is the depressed price at which they were forced to sell the property because of its contamination. The district court granted summary judgment for the defendants after disqualifying the plaintiffs’ expert medical witness under Fed. R. Evid. 702 and ruling that the hearsay rule barred the plaintiffs from testifying about the valuation of their property by appraisers. * * *

Houser [plaintiffs' expert] thus presented no evidence from which a trier of fact could infer that the plaintiffs’ exposure to PCE is likely to have contributed significantly (or for that matter at all) to their ailments.

The alleged impairment of the value of the plaintiffs’ property presents a separate issue—contamination can reduce property values without endangering anybody’s health. But like the health issue, causation turns out to be the plaintiffs’ Achilles heel. * * *

The critical question is how much they could have sold the building for had it not been for the contamination. Suppose that during the period in which the value of the plaintiffs’ property fell by 22 percent (from $135,000 to $105,000), it would have fallen by 12 percent had there been no contamination; then only a 10 percent change in the value of the property would be attributable to the contamination. The plaintiffs needed evidence by a real estate agent or real estate appraiser to establish the effect of the contamination on the value of their property. They did not attempt to present any such evidence.

In short, they failed to prove either personal injury or property damage, and the district court was therefore right to dismiss the case.

Posted by Marcia Oddi on June 23, 2009 01:35 PM
Posted to Ind. (7th Cir.) Decisions