ELR Citation: ELR 20448
No(s). 92-5070-CV-SW-8 (W.D. Mo. Feb 10, 1994)

The court holds that a defendant that brought a third-party action against other property owners seeking indemnity or contribution under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) failed to establish either a release of contaminants or causation needed to prevail on the indemnity or contribution claims. Local residents sued the defendant company for contamination of their well water with trichlorethylene (TCE). Defendant brought a third-party complaint for indemnity or contribution under §113 against numerous other corporations that maintain facilities in the vicinity, and they moved for summary judgment on the ground that defendant could not prove that any one of them caused the contamination. The court first rules that in a "two-site" case, where the alleged release took place at a site different than where the contamination was found, CERCLA requires a causal link between the release and the contamination. Tracing the contamination to its source to prove actual contamination caused by a defendant is not necessary where the plaintiff can show that the release or threatened release by the defendant, and not the actual contamination, caused the plaintiff to incur response costs. But where the response costs are incurred solely as a result of, and in response to, the actual contamination, the plaintiff must prove that the release by the defendant actually caused the contamination at plaintiff's site. The court holds that based on the facts of this case, the third-party plaintiff must prove the source of the contamination in order to satisfy the elements of its CERCLA claim. The court holds that the third-party plaintiff did not present sufficient evidence for a jury to find that if TCE was released from a third-party defendants' property, it actually caused the contamination in the drinking water wells that has caused plaintiffs to incur response costs. The opinion of the third-party plaintiff's expert cannot legitimately form the basis for a jury verdict. The expert is unable to pinpoint the sources of the contamination. Moreover, his opinions have nothing to do with probabilities and, thus, are not properly the subject of expert testimony. The court next holds that the third-party plaintiff has little direct proof that releases have occurred at the sites of the third-party defendants. The court rules that for all seven third-party defendants, the third-party plaintiff can neither establish an inference of, or presents only a scintilla of evidence about, a release of TCE, nor establish a causal link regarding the contamination. The court, however, dismisses the third-party complaint without prejudice. The third-party plaintiff's case is not, at this time, legally flawed or factually impossible. Finally, the court rules that the third-party plaintiff shall be allowed to inspect the property of the third-party defendants pursuant to Fed. R. Civ. P. 34 and 45 subpoenas requesting access to their property for surveys and soil and groundwater sampling. The inspections do not involve burdensome requests, they are not so prejudicial as to prevent discovery, and the third-party plaintiff should be afforded an opportunity, using any means available, to make a showing that another party is liable.

Counsel for Plaintiffs
Michael A. Gould, Raaji Deen Kanan
Gould & Associates
2900 Rockcreek Pkwy., Ste. 720, N. Kansas City MO 64117
(816) 421-6468

Counsel for Defendant
David F. Oliver
Smith, Gill, Fisher & Butts
One Kansas City Pl.
1200 Main St., 35th Fl., Kansas City MO 64105
(816) 474-7400