ELR Citation: ELR 20797
No(s). S91-570M (N.D. Ind. Apr 2, 1993)

The court holds that settling defendants seeking in a counterclaim to hold a paint coating company liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs at the Fisher-Calo Superfund site must answer interrogatories the company submitted in preparation for its divisibility-of-harm defense to the defendants' motion for summary judgment. The interrogatories address the settling defendants' contentions regarding causation, the location of waste at the site, and the response costs incurred. The court first holds that the information the company seeks is relevant to the defendants' counterclaim. The information the company seeks tends to make the existence of its divisibility-of-harm defense to joint and several liability more or less probable. The court also holds that the company is entitled to discovery regarding the cause of harm at the site, because if it can prove that it did not cause any harm, then it should not be held liable. Moreover, interrogatories regarding the defendants' contentions as to cause go directly to the heart of the company's divisibility-of-harm defense. Next the court rejects defendants' claim that the divisibility-of-harm defense is incompatible with CERCLA's liability scheme. It is particularly compatible in the context of determining whether the harm resulting from two or more causes is indivisible, or whether the harm is capable of apportionment among separate causes. The court also rejects defendants' objection to the company's use of the phrase "generated by plaintiffs" as defined and used in the interrogatories. The company's definition is relevant to whether the harm at the site is divisible and whether the company caused any of the harm. Moreover, it does not attempt to impose or alter CERCLA's standard for generator liability. The court also holds that the company is entitled to know the identity of any persons the defendants know possess certain information regarding the harm at the site.

[Subsequent decisions in this litigation are published at 24 ELR 21254 and 25 ELR 21339.]

Counsel for Plaintiffs
Timothy W. Woods
Jones, Obenchain, Ford, Pankow & Lewis
1800 Valley American Bank Bldg.
P.O. Box 4577, South Bend IN 46634
(219) 233-1194

Counsel forDefendants
Pierre C. Talbert Jr.
Foley & Lardner
One IBM Plaza
330 N. Wabash Ave., Ste. 3300, Chicago IL 60611
(312) 444-9500