ELR Citation: ELR 20483
No(s). s. 89-2782, -2785 (4th Cir. Sep 12, 1990)

The court holds that a claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) by the purchaser of a facility contaminated with polychlorinated biphenyls (PCBs) against the seller is barred by res judicata. In 1987, the purchaser obtained a jury verdict for $250,000 in compensatory damages in a suit alleging a state-law false representation claim. In 1989, the purchaser filed a new action against the seller under CERCLA §107 for reimbursement of response costs incurred in responding to the PCB contamination. The court holds that the CERCLA claim is barred by res judicata. Although the first suit involved a state-law fraud claim, the CERCLA claim arises out of the same factual basis and could have been brought in the first trial. Res judicata may apply even though the plaintiff in the first suit proceeded under a different legal theory. The court also holds that the district court did not abuse its discretion in denying the purchaser's motion for a new trial on the state-law fraud claim. The purchaser's alleged newly discovered evidence, consisting of test results and expert reports showing that the building was still contaminated at the time of the trial, could have been discovered before the trial.

Counsel for Plaintiffs-Appellants
Gary Allen Davis
Gilreath & Associates
707 Gay St. SW, P.O. Box 1270, Knoxville TN 37901
(615) 637-2442

Counsel for Defendant-Appellee
Dennis Charles Sauter
Jackson & Kelly
1600 Laidley Tower, P.O. Box 553, Charleston WV 25322
(304) 340-1000

Before ERVIN, Chief Judge, and CHAPMAN and WILKINSON, Circuit Judges.