Litigation - Recent Cases.
JORDAN et al. v. GEORGIA POWER COMPANY et al.

Background:

On July 24, 1991, Larry and Nancy Jordan filed a complaint in Douglas County against Georgia Power Company and Oglethorpe Power Corporation ("Oglethorpe") for damages arising from electromagnetic radiation on their property. The case was tried to a jury and the jury returned a defendants' verdict on causation; an appeal followed.

The complaint alleged that since 1972 Larry Jordan had owned and resided on property onto which Nancy Jordan and her children moved in 1983. According to the complaint, in 1973 Oglethorpe and Georgia Power installed power lines on an easement next to the Jordans' property, and those power lines began emitting unreasonably dangerous levels of electromagnetic radiation onto the property. The complaint claimed that as a result of the electromagnetic fields ("EMFs"), the property had been rendered unsafe and Nancy Jordan had developed non-Hodgkins lymphoma. The complaint set forth counts for injunctive relief, tresspass, nuisance, negligence, inherently dangerous activity, negligent misrepresentation, battery and punitive damages.

Oglethorpe and Georgia Power answered the complaint and filed a motion for bifurcation. The court granted the motion to bifurcate the trial on the issues of liability and damages.

Oglethorpe and Georgia Power filed a motion for summary judgment, setting forth a variety of arguments. Subsequently, the Jordans dismissed the claim for fraud, all claims of their minor children, and all claims for future medical monitoring for Larry Jordan. On December 28, 1993, the Douglas County Superior Court Judge David T. Emerson granted summary judgment on the Jordans' tresspass claim and concluded that the case would be tried according to a negligence standard, not according to the standard for ultrahazardous activities. In the pretrial order, filed several days before trial, the Jordans reiterated their claims for compensatory and punitive damages on theories of tresspass, nuisance, battery, negligence, and strict liability.

From April 19 until May 5, 1994 evidence was presented to a jury. Seventeen witnesses, including Larry and Nancy Jordan, testified. Larry Jordan testified that when he bought the property in 1972, he was aware of the easement which Georgia Power had on the property. He stated that he did not recall power lines being built on the property until 1973. Mr. Jordan testified that he and Nancy Jordan were married in 1983 and that she then moved into his house. Nancy Jordan was diagnosed with breast cancer in 1985 and with a second cancer, the subject of this lawsuit, in 1989. In 1990 the Jordans moved; they had a difficult time selling the house. Larry Jordan testified that eventually the bank foreclosed on the house, because he could no longer make payments.

The Jordans called several expert witnesses. Dr. Peter Wright, a cancer specialist, testified that Mrs. Jordan's disease developed because of her exposure to electromagnetic radiation generated through power lines. Wright testified that electromagnetic radiation caused non-Hodgkin's lymphoma and that this conclusion was supported by various studies.

Oglethorpe and Georgia Power called as witnesses Dr. James Bland and Dr. Saul Rosenberg, who testified that electromagnetic radiation did not cause Mrs. Jordan's disease. These doctors testified magnetic fields from power lines were not the cause of lymphomas in general, or of non-Hodgkin's lymphoma in particular.

After the conclusion of the evidence, but before the jury returned its verdict, the court directed a verdict against the Jordans on the battery and punitive damages claims. The jury then returned its verdict, finding that the magnetic fields from the transmission lines were not the proximate cause of Mrs. Jordan's non-Hodgkin's lymphoma. After the return of the verdict on causation, the court directed a verdict against the Jordans on their nuisance claim. The court then entered judgment in favor of Oglethorpe and Georgia Power and against the Jordans.

The Jordans argued on appeal that the trial court erred by permitting expert witnesses called by Oglethorpe and Georgia Power to testify concerning hearsay opinions of unidentified non-testifying witnesses. Before trial the Jordans filed a motion in limine to exclude testimony as to a "consensus in the scientific community," which motion the court denied. On appeal, they contended that an expert witness may not act as a surrogate for a non-testifying expert.

The specific testimony to which the Jordans objected was that of Drs. Richard Bland and Saul Rosenberg. Dr. Rosenberg, a physician and professor of radiation oncology at Stanford University, testified that the scientific medical community did not consider magnetic fields from power lines a cause of lymphomas in general, or of non-Hodgkin's lymphoma in particular. Similary, Dr. Bland, a medical doctor with a specialty in radiation oncology, testified that "the medical oncology community in this area and in Georgia does not feel that EMF is a causative factor for non-Hodgkin's lymphoma." Both doctors also testified that in their opinions, Mrs. Jordan's disease was not caused by the magnetic fields from the power lines.

The Georgia Court of Appeals on November 30, 1995, held that though it was proper for the trial court to allow the doctor's testimony regarding their own opinions of the cause of Mrs. Jordan's illness, the court committed reversible error in admitting this "consensus" testimony. "An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness' opinion must be his own and he cannot act as a mere conduit for the opinions of others." Neither Dr. Bland nor Dr. Rosenberg clearly identified the "community" of experts for which he was speaking, nor did either doctor precisely explain the method by which he ascertained the "consensus." Contrary to Oglethorpe and Georgia Power company's contentions, the Jordans' experts' use of treatises differed from the testimony the court allowed here. Similarly, despite Oglethorpe and Georgia Power Company's arguments to the contrary, the appeals court did not find any instances in which the Jordan' experts were allowed to testify regarding a "consensus" of opinion.

The appeals court affirmed the grant of summary judgment to the defendants on the plaintiff Jordans' trespass claim. The Jordans argued that the trial court invaded the province of the jury, resolved factual disputes based on inadmissible non-record evidence and erred by ruling that there must be physical damage to land to constitute a trespass.

In their motion for summary judgment, Oglethorpe and Georgia Power argued that EMFs are not tangible matter and that their alleged presence on the Jordans' property could not constitute a trespass. In response, the Jordans filed the affidavit of Roy Martin, a licensed professional electrical engineer, in which he stated that electromagnetic radiation from power lines is tangible. Martin further stated that a magnetic field could be detected and measured by appropriate measuring devices and that such fields obeyed physical laws.

In its order granting the motion, the trial court concluded that although the Jordans claimed that there was a detectable entry on their property by the EMFs, these fields were not tangible as defined by law for the purpose of trespass determinations.

Although arguably the Jordans' trespass action could present a jury question, the appeals court concluded that for policy reasons the trial court's grant of summary judgment was proper. The scientific evidence regarding whether EMFs cause harm of any kind is inconclusive; the invasive quality of these electric fields cannot presently constitute a trespass. In reaching this conclusion, the appeals court did not close the door on the possibility that science may advance to a point at which damage from EMFs is legally cognizable and a trespass action may lie.

The appeals court also considered the Jordans' claim that the trial court erred by granting a directed verdict on the nuisance and property damage claims. It held that the trial court verdict was proper since the present state of science does not authorize recovery based on these facts.

Greystone Power Company ("Greystone") is the electrical membership cooperative serving Douglas County. Greystone received all of its power from defendant Oglethorpe and is a member of Oglethorpe. The jury was qualified as to Oglethorpe, but the Jordans claim that the court erred in refusing to qualify the jury as to Greystone.

The Jordans argue that the trial court should have disqualified for cause twenty-seven of the thirty-six person jury pool who were members of Greystone. The appeals court said that the trial court should disqualify Greystone members as jurors if the Jordans submit evidence that Greystone bylaws vest in its members a right to share in Greystone's or Oglethorpe's surplus revenues.

Plaintiffs are represented by Robert E. Shields of Doffermyre, Shields, Canfield & Knowles in Atlanta; Bruce DeBoskey and Steven Kelly of Silver & DeBoskey in Denver; and Gerald P. Word of Word & Flinn in Carrolton, Georgia.

Robert L. Pennington and Scott A. Farrow of Troutman Sanders represent Georgia Power. James A. Orr and Elizabeth Bosell of Sutherland, Asbill & Brennan represent Oglethorpe Power. All are located in Atlanta, Georgia.