ELR Citation: ELR 20605
No(s). 92-2219 (4th Cir. Feb 1, 1995)

The court affirms a district court decision excluding as unreliable under Fed. R. Evid. 702 expert testimony on community residents' exposure to drinking water that the defendant company's trichloroethane (TCE) allegedly contaminated, but reversed in part the district court's summary judgment for the company on the residents' personal injury, nuisance, and trespass claims. The residents obtained their drinking water from four residential wells that withdrew groundwater contaminated with TCE. The residents relied on expert testimony from a hydrologist, an expert in chemodynamics, and three physicians to support their claim that the corporation's TCE caused their medical problems.

The court first holds that the district court did not abuse its discretion in concluding that the hydrologist's expert opinion that the corporation's TCE entered the residential wells around 1970 was unreliable, and therefore, inadmissable under Fed. R. Evid. 702. The court notes that the hydrologist failed to offer any support for his conclusion that the corporation's TCE had crossed a creek and entered into the wells around 1970. In addition, the hydrologist conceded that TCE could only pass under the creek into the wells when the water level in the wells fell below the creek's depth, and that he had no evidence from 1970 of such a low water level.

The court next holds that the district court did not abuse its discretion in concluding that the chemodynamics expert's testimony was unreliable, and, therefore, inadmissable under Fed. R. Evid. 702. The residents failed to point to any scientific support for using the chemodynamics expert's concept of environmental half-life to determine how much TCE must have been present in the residential wells 15 years before the discovery of TCE in those wells. In addition, the lead author of the paper on which the chemodynamics expert relied in calculating TCE's half-life in the wells submitted an affidavit stating that the expert's approach was imprudent and prone to enormous error. The expert also made no effort to explain why his theory failed to account for the fact that the TCE concentration in one of the wells stayed the same for two years, rather than declining by half, as his theory should have predicted. The court further held that the residents cannot rely on their physicians' opinions that the company's TCE caused their medical problems, because the physicians' testimony relied on the chemodynamics expert's inadmissible calculations on the residents' TCE exposure.

The court notes that excluding the expert testimony leaves the residents three pieces of evidence to show that the company's TCE caused their medical problems: The company used TCE at its plant from 1967 until about 1974; the TCE found in the residential wells in 1986 originated at the company's plant; and 21 of the 22 residents experienced the types of health problems TCE is known to cause. The court holds that for these 21 residents, a reasonable jury could find on the basis of this evidence, that the company's TCE caused their health problems. The court holds that a jury could reasonably infer from the fact that defendant used TCE in its plant only in the late 1960s and early 1970s that the TCE discovered in the residential wells in 1986 entered these wells many years earlier, given these 21 residents, all of whom drank from these wells, long-term exposure to the company's TCE. The court also holds that a jury could further reasonably infer from the fact that TCE was a known cause of the types of health problems these residents experienced, that this long-term exposure to the company's TCE had caused their health problems. The court concludes, therefore, that the district court erred in granting summary judgment for the company on these residents' personal injury claims.

The court next affirms the district court's dismissal of the nuisance and trespass claims by those residents that have no ownership or possessory interest in three of the residential wells. The court reverses the district court's grant of summary judgment for the company on the nuisance and trespass claims of residents who hold a possessory interest in the first well. The court notes that 1986 tests revealed an average concentration of 19.6 parts-per-billion in this well, nearly four times the maximum allowed in the public drinking supply. In addition, the company has conceded for purposes of its summary judgment motion that this TCE originated at its plant. The court holds, therefore, that on this evidence alone, a reasonable jury could conclude that the company's TCE had caused substantial injury or actual damage to those residents who have an ownership or possessory interest in this well.

The court also reverses the district court's grant of summary judgment for the company on the nuisance and trespass claims of those residents having a possessory interest in either of the remaining two wells. Testing from these wells showed average TCE concentrations below the U.S. Environmental Protection Agency's maximum contaminant level for TCE. The court holds, however, that a reasonable jury could infer that the company's TCE did cause substantial injury and actual damage to these residents, based on the facts that the company last used the TCE in 1974, the residents who consumed water from these wells show health problems consistent with TCE exposure, and the concentration of the company's TCE in these wells was at some point before 1986 considerably higher than the concentrations measured in 1986.

The court holds that the district court properly dismissed the residents' claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for medical costs, costs of obtaining alternate water, and attorney fees. The residents did not even attempt to show that the costs they seek to recover under CERCLA §107 were incurred consistent with the national contingency plan in effect when they brought their action. The court also holds that the district court properly dismissed the residents' claims under the Resource Conservation and Recovery Act (RCRA), because the residents made no showing that any of defendants' alleged violations of RCRA requirements were continuing at the time they filed their action.

A dissenting judge would affirm the district court's grant of summary judgment on the residents' personal injury claims, because she does not believe that a reasonable jury could find for the residents without expert testimony. She disagrees with the language of the majority's opinion, because it implies that a lay person can infer causation when the evidence is insufficient to support a similar opinion by expert witnesses. She would also find that there was insufficient evidence to allow a reasonable inference that the residents' exposure to the company's TCE caused their medical problems.

Counsel for Appellants
Donna K. Holt
Gilreath & Associates
550 Main Ave., Ste. 600, Knoxville TN 37901
(615) 637-2442

Counsel for Appellee
Donald W. Fowler
Spriggs & Hollingsworth
1350 I St. NW, Ste. 900, Washington DC 20005
(202) 898-5800

Before Russell and Williams, J.