Eighth Circuit agrees that toxicologist did not meet Daubert standards in nuisance case against Tyson/IBP for operating a foulsmelling plant in Dakota City; Court of appeals further refuses to allow an "unjust enrichment" claim against TysonBlog 702 reports the Eighth Circuit refused dubious testimony from an expert to back up a Dakota City resident's claim of nuisance for the meat packing plants noxious odors. I thought thats the reason folks live up there, if not for the good mexican food. Maybe the Nebraska Supreme Court could take some cues from the Eighth Circuit that Daubert is meant to weed out the expert chaff, not let it in. Compare this case Marmo v. Tyson Fresh Meats, Inc., No. 05-1906 (8th Cir. Aug. 3, 2006) (Arnold, Smith, & Magnuson, JJ.) with Epp v. Lauby, (complainers disease fibromyalgia). The Court of Appeals also gets to reject a more novel (frivolous) argument from the Plaintiff that her nuisance claim is also an unjust enrichment claim: Marmo admits that neither the Nebraska Supreme Court nor the Nebraska Legislature has recognized an unjust enrichment claim based on a pollution easement theory, but nonetheless argues that Nebraska case law supports her claim. Nebraska courts have recognized an unjust enrichment claim to allow a purchaser who made valuable improvements to a property to recover the reasonable value of the improvement. See McIntosh v. Borchers, 266 N.W.2d 200, 203 (Neb. 1978). They have also recognized an unjust enrichment claim to require payment for land use when an individual disavowed an obligation to pay for the use. Bush, 173 N.W.2d at 369. However, no Nebraska state court has recognized a negative unjust enrichment claim based on the pollution easement theory, which seeks disgorgement of profits unjustly saved by a polluter.4 Rather, Nebraska courts focus on how the pollution injures the plaintiff, and that claim is properly brought under the law of nuisance. See Bargmann v. Soll Oil Co., 574 N.W.2d 478, 486 (Neb. 1998); Karpisek v. Cather & Sons Constr., Inc., 117 N.W.2d 322, 326-27 (Neb. 1962). There is no indication that the Nebraska Supreme Court would recognize an unjust enrichment claim on the facts of this case. Thus, the proposed amendment would have been futile, and the district court did not err in denying Marmo leave to amend the complaint.