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McElmurray v. Augusta-Richmond County7/11/2005
ical examinations performed on the McElmurrays' cows affirmatively identified any heavy metal toxicity as a cause of the cows' deaths, the pathology reports did not positively identify any specific, exclusive cause of death because concentrations of heavy metals concurrent with other conditions could not be ruled out as a contributing cause.
On the question of whether the increased morbidity and mortality rates in the McElmurrays' cows was caused by Johne's Disease, one of the McElmurrays' experts explained that he eliminated it as the cause of the health problems because the specific symptoms caused by that disease (e.g., persistent, progressive, profuse and watery diarrhea, usually over a 3-year period, almost always triggered by calving, with the cows losing weight and eventually dying while their appetites remain normal and the cows usually remain alert) were not present in the McElmurray herd.
Ultimately, the McMurrays' theory that the excessive concentration of metals in their cows' tissues resulted in increased morbidity and mortality rates for their herd rested on a consideration of the foregoing evidence in conjunction with the elimination of other possible causes, as well as the temporal association between the herds' health problems and the sludge applications (i.e., the health problems arose several years after the sludge applications began, and the health problems receded after the sludge applications were discontinued).
Under applicable Georgia law, whether there is sufficient knowledge to support the McElmurrays' experts' opinions on transference of heavy metals from dairy feed to the cows who consume the feed, and on the effect of the heavy metals on the cows' immune systems, goes to the weight and credibility of their testimony and not to its admissibility. The experts' explanations for their opinions as to causation were sufficient to authorize a jury to find that the McMurrays have demonstrated a reasonable probability of a causal connection between their injuries and Augusta-Richmond County's acts, and that they have not left the matter to pure speculation or conjecture.
(c) The trial court also awarded summary judgment to Augusta-Richmond County on the McElmurrays' claims for future lost profits, and the McElmurrays have not shown error in this ruling.
(d) The court awarded summary judgment to Augusta-Richmond County on the McElmurrays' claim for the diminished value of their lands and for remediation costs.
Because this ruling was based on rules applicable to the recovery of damages in suits on contracts and not to suits on torts, the correctness of the ruling is moot. Moreover, the trial court's determination that these damage claims are too speculative to support a recovery under a breach of contract theory was based, at least in part, on a misinterpretation of the record. In this regard, the court found that one of the McElmurrays' experts had testified that it was probable that pre-remediation soil sampling or testing would determine that remediation was not necessary. Our review of the record shows that the expert, in fact, testified that the probability was that remediation would be required. And although the court found that the McElmurrays' expert had admitted that the data that had been collected was insufficient to draw any conclusions as to the presence of hazardous concentrations of heavy metals in the soil on all of the McElmurrays' fields, this expert also testified that concentrations exceeding levels that have required cleanups in prior recorded cases have been found on the fields tested even though years have elapsed since the sludge was applied. Furthermore,
he rule against the recovery
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