The Goodyear Tire & Rubber Company v. Conagra Foods, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

The Goodyear Tire & Rubber Company, Case No: 2:20-cv-6347

Plaintiff, Judge Graham

v. Magistrate Judge Deavers

ConAgra Foods, Inc., et al.,

Defendants.

Opinion and Order

Under federal law, a person who is liable for paying to clean up hazardous substances can

seek contribution from others who were responsible for a substance’s release. See Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9613(f). The

Goodyear Tire & Rubber Company seeks to do just that for costs it has incurred in responding to

the release of hazardous substances at the Jackson County Landfill in southern Ohio. Goodyear

admits it contaminated the Landfill in the 1970s and 1980s by dumping thousands of drums

containing acetone. But it alleges that the eight defendants are also responsible for dumping a

variety of hazardous waste, including animal by-products, food sludge, foundry sand, metal

fabrication waste, paints, pesticides, plastics, and sawdust from treated wood.

In an unusual procedural move, Goodyear filed pre-discovery motions for partial summary

judgment on the issue of liability, with an allocation of defendants’ respective shares of responsibility

to be determined later at a bench trial. Defendants raise a host of objections, many of which relate

to the admissibility of the evidence which Goodyear has submitted in support of its motions.

Defendants also seek relief under Federal Rule of Civil Procedure 56(d) for an opportunity to take

discovery to refute the evidence submitted by Goodyear. Finally, defendants Conagra and General

Mills argue that Goodyear cannot establish successor liability for the purported actions of their

alleged corporate predecessors-in-interest.

This matter is before the Court on Goodyear’s eight motions for partial summary judgment,

defendants’ joint motion in limine to exclude improper evidence, and General Mills’ cross-motion

for summary judgment on the issue of successor liability. For the reasons stated below, Goodyear’s

motions are denied, defendants’ motion in limine is granted in part, and General Mills’ motion is

denied.

I. Background

A. The Parties

Plaintiff Goodyear is an Ohio company that manufactures and distributes rubber products.

It once operated a plant in Jackson, Ohio.

Defendant ConAgra Foods, Inc. (now Conagra Brands, Inc.) is a food company and alleged

successor to Banquet Foods, which prepared food products at a facility in Wellston, Ohio.

Defendant General Mills, Inc. manufactures consumer foods and is the alleged successor to

Jeno’s, Inc. and the Pillsbury Company. Jeno’s operated one or more plants in southern Ohio,

producing frozen pizza products. Pillsbury acquired Jeno’s in 1985.

Defendant Inland Products, Inc. is an Ohio corporation in the business of rendering animal

waste to produce fat and protein products.

Defendant Lancaster Glass Corporation is the legal successor to Jackson Corporation, which

manufactured plastic goods at a facility in Jackson.

Defendant Masco Cabinetry, LLC (now Cabinetworks Group Michigan, LLC) is the

successor of Merillat Cabinet. Merillat operated a cabinet-manufacturing facility in Jackson.

Defendant National Oilwell Varco, Inc. (now NOV, Inc.) is the successor of Robbins &

Myers, which operated an iron foundry and related facilities in southern Ohio.

Defendant OSCO Industries, Inc. was founded as the Ohio Stove Company in Portsmouth,

Ohio. It operated foundries in southern Ohio.

Defendant R.J. Reynolds Tobacco Holdings, Inc. is the legal successor to R.J. Reynolds

Foods, Inc. In 1966, R.J. Reynolds Foods acquired the Chun King food business and operated a

packaged foods facility in Jackson.

B. Jackson County Landfill

The Landfill began operations in about 1970 at a 24-acre site in Jackson County. The Ohio

Department of Health approved the operation of the Landfill as a solid waste disposal site. Doc.

64-3.1 The site also had an additional one-acre area for the disposal of foundry sand. The Landfill

1 In describing the history of the Landfill the Court relies in part on recitations of facts contained in

documents which appear to have been authored by the Ohio Department of Health and the Ohio

Environmental Protection Agency. The Court recognizes that certain defendants have objected to

these documents as not having been authenticated. Even so, the Court believes that the basic

background facts set forth herein are not in serious dispute. The Court’s reliance on the documents

cited is without prejudice to the parties arguing that they are inadmissible for purposes of

determining liability or allocating responsibility.

received waste from municipal and industrial sources. Doc. 64-2 at PAGEID 470, ¶ 6(h). A creek

and nature preserve bordered the site in part. Id. at PAGEID 469, ¶ 6(a).

Donald Jenkins initially owned and operated the Landfill. In 1972 his son-in-law J. Gregory

Fields took over the Landfill, while the Foundry Sand area was owned by Shawn and Melissa Sexton.

Fields later transferred ownership of the Landfill to a company he owned and controlled, Sanitation

Commercial Services, Inc. (SCS). Doc. 64-2 at PAGEID 469–70, ¶ 6(c)–(f).

As early as 1976, the Ohio EPA raised concerns about the Landfill. In a letter to the

Jackson County Health Department, the Ohio EPA noted that liquid waste “of an apparent

chemical nature” had been observed at the site, and that “leachate had surfaced” in a particular area

of the Landfill. Doc. 64-7 at PAGEID 703. The Ohio EPA issued a notice of violation one year

later. Doc. 64-2 at PAGEID 470, ¶ 6(g).

In 1984 the Ohio EPA issued a letter to Goodyear. Doc. 64-9. The letter stated that

hazardous substances had been detected at the Landfill. The Ohio EPA formally requested

Goodyear to respond to a series of questions and requests for documents relating to Goodyear’s

activities at the Landfill. Goodyear stated that it had disposed of 5,772 drums of waste materials –

including acetone, paints and styrene – at the Landfill between 1974 and 1980. Doc. 64-2 at

PAGEID 470, ¶ 6(j); Doc. 64-4 at PAGEID 540.

Later in 1984 the Ohio EPA brought an administrative action against the Jackson County

Combined General Health District for alleged violations at the Landfill and another site in Jackson

County. Fields was later joined to the action. The parties ultimately entered into a settlement

agreement establishing conditions and benchmarks which had to be satisfied in order for the

Landfill to continue operating. Sanitary Comm. Servs., Inc. v. Shank, 57 Ohio St.3d 178, 179, 566

N.E.2d 1215, 1216 (1991).

In 1987 the Ohio EPA found that Fields had failed to comply with the settlement

agreement. The Director issued Final Findings and Orders requiring Fields to cease accepting waste

and to begin shutting down the Landfill. Id., 57 Ohio St.3d at 179, 566 N.E.2d at 1217.

The Ohio EPA later determined that Fields had not properly closed the Landfill. In 1996 it

discovered releases of hazardous substances, including ammonia, benzene and lead. Doc. 64-5 at

PAGEID 554.

The Ohio Attorney General’s Office brought an enforcement action in this Court in 1997

against Fields and SCS. Case No. 2:97-cv-984 (S.D. Ohio) (Smith, J.). The suit ended in a Consent

Decree by which Fields and SCS agreed to pay $225,000 into a trust fund to help defray the costs of

closure and post-closure maintenance of the Landfill.

The Ohio EPA continued monitoring the Landfill. In 2005, it directed Goodyear to

complete a Remedial Investigation and Feasibility Study. Doc. 64-2 at PAGEID 472 at ¶ 6(hh).

Goodyear prepared two reports, which the Ohio EPA approved in 2009 and 2010. The reports

indicated the presence of many “contaminants of concern,” including arsenic and mercury, as well as

methane gas. Id. at PAGEID 473 at ¶ 6(ii). The reports determined that the release of waste

materials posed risks to human and ecological health. Id.; Doc. 64-5 at PAGEID 556–60.

The Ohio EPA and Goodyear continued working on a plan to remediate the Landfill. Doc.

64-5 at PAGEID 554. In 2015 the Ohio EPA issued public notice of a Preferred Plan for

remediation. Doc. 64-2 at PAGEID 473 at ¶ 6(jj). On September 15, 2015, the Ohio EPA issued a

Decision Document announcing its selected plan, which called for the placement of a geomembrane

cap with leachate treatment at a projected cost of over $10 million. Doc. 64-5 at PAGEID 580.

In late 2016, the Ohio EPA issued a Director’s Final Findings and Orders for Remedial

Design and Remedial Action. Doc. 64-2. It provided that Goodyear, as the “Work Respondent,”

would perform the design and action plan selected by the Ohio EPA.

Goodyear alleges that it has incurred over $12.5 million in response costs so far.

According to Goodyear, the Landfill property is still owned by SCS. Fields passed away in

2018.

C. Procedural Posture

Goodyear filed its Amended Complaint in April 2021. The Magistrate Judge then set a

preliminary pretrial conference for May 25, 2021. The parties conferred pursuant to Federal Rule of

Civil Procedure 26(f) on May 11 and agreed to make initial disclosures by June 22. Doc. 72.

On May 17, 2021, Goodyear filed motions for partial summary judgment against each of the

defendants. Docs. 64–71. Goodyear argues that the evidence attached to its motions is sufficient to

establish that each defendant arranged to dispose of hazardous substances at the Landfill. Goodyear

seeks a determination that defendants are liable as a matter of law for contribution. Goodyear

contends that the Court should then proceed with discovery and ultimately a bench trial regarding

allocation of costs.

Defendants jointly filed a motion in limine to exclude certain exhibits submitted by

Goodyear in support of its motions. Doc. 88. Defendants argue that the pieces of evidence on

which Goodyear relies the most heavily are inadmissible as hearsay. This includes a deposition of

Fields taken during the enforcement action in this Court and notes recorded by an investigator when

he interviewed people who had worked at the Landfill.

General Mills filed a cross-motion for summary judgment concerning successor liability.

Doc. 92. It contends that the Purchase Agreement between Jeno’s and Pillsbury contained a broad

disclaimer that Pillsbury was not assuming the liabilities of Jeno’s.

The parties unsuccessfully attempted to mediate their dispute in October 2021. Some initial

discovery has since been conducted.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary

materials in the record show that there is “no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d

459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of genuine

issues of material fact and its entitlement to judgment as a matter of law, which may be

accomplished by demonstrating that the nonmoving party lacks evidence to support an essential

element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might affect

the outcome of the suit under the governing law,’ will preclude summary judgment.” Daugherty v.

Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly,

the nonmoving party must present “significant probative evidence” to demonstrate that “there is

[more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d

335, 340 (6th Cir. 1993).

A district court considering a motion for summary judgment may not weigh evidence or

make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 (6th

Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine whether

“the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. The

evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992).

However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).

III. CERCLA

Goodyear is seeking contribution under 42 U.S.C. § 9613(f)(1) for the costs it has incurred

and will continue to incur in responding to the release of hazardous substances at the Landfill. To

prevail in a contribution action under CERCLA, a plaintiff must establish the following elements:

(1) the property is a “facility”; (2) there has been a “release” or “threatened release”

of a hazardous substance; (3) the release has caused the plaintiff to incur “necessary

costs of response” that are “consistent” with the NCP [National Contingency Plan];

and (4) the defendant is in one of four categories of potentially responsible parties.

Reg’l Airport Auth, of Louisville v. LFG, LLC, 460 F.3d 697, 703 (6th Cir. 2006); Hobart Corp. v. Dayton

Power & Light Co., No. 3:13-CV-115, 2019 WL 1755815, at *3 (S.D. Ohio Apr. 19, 2019).

The first two elements do not appear to be in dispute. A “facility” includes a “landfill.” 42

U.S.C. § 9601(9). A “release” includes “any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or disposing” of substances that are identified in

various statutory and regulatory provisions as hazardous. Id. at §§ 9601(14); 9602. It does not

appear that defendants would dispute that the Ohio EPA has documented the release of hazardous

substances at the Landfill.

As to the third element, defendant R.J. Reynolds challenges whether the costs Goodyear has

incurred were necessary and consistent with the federal blueprint (the NCP) for responding to the

release of hazardous substances, see 42 U.S.C. § 9605. Goodyear argues that the fact that it has

incurred costs in compliance with the Ohio EPA’s orders creates a presumption that the costs are

necessary and consistent with the NCP. See NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 791 (7th

Cir. 2000). For purposes of the present motions, the Court need not resolve this dispute.

Under the fourth element, one category of responsibility is “arranger” liability. Any person

who “by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a

transporter for transport for disposal or treatment, of hazardous substances owned or possessed by

such person” is liable for the necessary costs of response. 42 U.S.C. § 9607(a)(3).

It is the fourth element which receives the greatest amount of attention in the briefs.

Goodyear contends that evidence gathered from Fields and others who worked at the Landfill

demonstrates that each of the defendants arranged for the disposal of waste there. The evidence

includes statements made by Fields in a deposition and in an interview in 1998. It also includes

evidence gathered by an investigator, Bruce Kingsland, who was hired by Goodyear’s legal

department and authored a report in 2006 based in part on interviews that he conducted. Finally,

Goodyear relies on affidavits from its expert, Dr. Kirk W. Brown, who opines that each of the

defendants’ waste streams would have contained certain hazardous substances.

IV. Rule 56(d) Request

Most of the defendants have responded to the motions for summary judgment by requesting

relief under Rule 56(d). The rule provides that upon a party’s showing that it “cannot present facts

essential to justify its opposition” to a motion for summary judgment, the court may deny the

motion or defer consideration of it and allow time for the parties to conduct discovery. The party

seeking Rule 56(d) relief must establish what facts it seeks to obtain through discovery and why it

has not previously discovered the information. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488

(6th Cir. 2000) (discussing Rule 56(f), which is now Rule 56(d)).

In support of their request, defendants emphasize that Goodyear filed its motions for

summary judgment even before the Rule 26(f) initial disclosures were due and that they have not

had an opportunity to conduct any discovery to defend themselves against Goodyear’s allegations.

Defendants state that the discovery they seek would include deposing the numerous individuals on

whose reports, affidavits and recollections (as reflected in interview notes) Goodyear relies.

Defendants also wish to retain experts to rebut the expert affidavits submitted by Goodyear.

Goodyear responds that this lawsuit should not have taken defendants by surprise. In

August 2019 Goodyear approached defendants with at least some of the evidence it had gathered

and made pre-litigation settlement demands. Goodyear argues that defendants should have already

been preparing to defend themselves and examining their records for evidence of the activities they

conducted at the Landfill. Goodyear further argues that discovery would be futile because its

motions support a conclusion as a matter of law that defendants are responsible for the disposal of

hazardous substances at the Landfill. Questions relating to the amounts and concentrations of the

materials disposed of relate to issues of allocation and not to liability.

The Court will grant defendants’ request under Rule 56(d). Defendants may have known

this suit was coming, but that does not mean that the evidence submitted by plaintiff in support of

its early-filed motions is exempt from the truth-testing safeguards provided by formal litigation

procedures. Even if some of the relevant evidence is in defendants’ hands (such as their own

records of activity at the Landfill), defendants have a right to conduct depositions of plaintiff’s

witnesses and expert. This is particularly true since, as will be discussed below, significant concerns

exist about the reliability and admissibility of plaintiff’s most critical pieces of evidence.

The Court’s decision is supported by Sixth Circuit case law making it abundantly clear that

an abuse of discretion is likely to be found when a trial court allows no opportunity at all for

discovery. CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008) (“Typically, when the parties have

no opportunity for discovery, denying the Rule 56(f) motion and ruling on a summary judgment

motion is likely to be an abuse of discretion.”); Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.

2004) (“It is well-established that the plaintiff must receive ‘a full opportunity to conduct discovery’

to be able to successfully defeat a motion for summary judgment.”); Vance By & Through Hammons v.

United States, 90 F.3d 1145, 1149 (6th Cir. 1996) (“Most significant to the conclusion we reach is the

fact that no discovery was conducted before the motion for summary judgment was filed and

decided.”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231 (6th Cir. 1994) (“Yet we

nevertheless conclude that summary judgment should not have been awarded until the plaintiffs

were allowed some opportunity for discovery. . . . In the instant case, we find that the grant of

summary judgment, absent any opportunity for discovery, is such a misuse [of discretion].”).

Goodyear argues that discovery would be futile. It contends that so long as it can establish

“the presence of any amount of a hazardous substance in a defendant’s waste, no matter how small,”

then liability will attach under CERCLA. Doc. 64-1 at PAGEID 457 (emphasis in original) (citing

United States v. W. Processing Co., 734 F. Supp. 930, 936 (W.D. Wash. 1990)); United States v. Nicolet,

Inc., 712 F. Supp. 1205, 1207 (E.D. Pa. 1989) (“[A]s long as a substance is on one or more of the

lists identified at 42 U.S.C. § 9601(14), it is a hazardous substance irrespective of the volume or

concentration of the substance found at the site in question.”).

The Court disagrees with Goodyear’s assessment that this case is only about allocation.

Goodyear must prove by a preponderance of the evidence that waste containing hazardous

substances is attributable to each defendant. 42 U.S.C. § 9607(a)(3). None of the defendants have

conceded that element of plaintiff’s case. To be sure, plaintiff has submitted some evidence that, if

admissible and credited, would support an inference that defendants are responsible for hazardous

substances at the Landfill. But defendants have a right to conduct discovery and attempt to refute

Goodyear’s assertions. For example, several defendants (including General Mills, Masco, NOV, and

R.J. Reynolds) believe that discovery and expert opinion will enable them to prove that they

disposed of only common garbage, such as food waste, carboard and untreated wood products, and

that no hazardous substances can be attributed to them.

In sum, defendants’ request under Rule 56(d) for an opportunity to conduct discovery is

well-received. The Court therefore denies Goodyear’s motions for partial summary judgment

without prejudice.

V. Defendants’ Motion in Limine to Disregard Inadmissible Evidence

In the alternative, the Court also denies the motions for summary judgment because those

motions rely on hearsay evidence which must be disregarded as inadmissible at this early stage. See

Fed. R. Civ. P. 56(c)(2).

A. Fields Deposition

In June 1998, the deposition of Fields was taken in the State of Ohio’s enforcement action in

this Court against SCS and Fields. To establish arranger liability, Goodyear relies on statements

made in the deposition describing the waste that the Landfill accepted from various defendants. See,

e.g., Fields Dep. (Doc. 65-14) at 95–96 (testifying that OSCO dumped dust, pallets and sand at the

Landfill); id. at 97–98 (NOV’s predecessor, Robbins & Myers, dumped dry dock material, including

cardboard); id. at 42–43 (Lancaster Glass’s predecessor, Jackson Corporation, dumped coloring

powder and plastic beads).

Defendants argue that plaintiff’s attempted use of the Fields deposition does not satisfy the

requirements of Rule 32 of the Federal Rules of Civil Procedure. The rule allows a deposition taken

in an earlier action to be used “in a later action involving the same subject matter between the same

parties, or their representatives or successors in interest.” Fed. R. Civ. P. 32(a)(8).

Goodyear does not dispute that the earlier action in this Court did not involve the same

parties, or their representatives or successors in interest.

Rule 32 further provides that a “deposition previously taken may also be used as allowed by

the Federal Rules of Evidence.” Id. Fields passed away in 2018. Rule of Evidence 804 provides an

exception to the rule against hearsay when the declarant is unavailable and gave former testimony as

a witness in a lawful deposition and the former testimony “is now offered against a party who had –

or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop

it by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1).

Here too, Goodyear does not dispute that defendants neither had an opportunity to examine

Fields in the prior deposition, nor did the parties to the earlier action have a similar motive to

develop the testimony as defendants would have.

Goodyear instead looks to two other hearsay exceptions. The first is a statement against

interest. The exception applies to statements which “a reasonable person in the declarant’s position

would have made only if the person believed it to be true because, when made, it was so contrary to

the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the

declarant’s claim against someone else or to expose the declarant to civil or criminal liability.” Fed.

R. Evid. 804(b)(3)(A). Goodyear argues that Fields was defending himself against a civil

enforcement action and that his testimony concerning unlawful dumping activities at the Landfill

exposed himself to civil liability.

The Court finds that Goodyear has not sufficiently established, for purposes of the motions

for summary judgment, that the statements relied upon by Goodyear qualify as statements against

interest. While the State’s suit may have been adversarial to Fields, Goodyear has not demonstrated

how the particular statements at issue inculpated Fields. Rule 804(b)(3) “does not allow admission

of non-self-inculpatory statements, even if they are made within a broader narrative that is generally

self-inculpatory.” Williamson v. United States, 512 U.S. 594, 600–01 (1994). See also McClung v. Wal-

Mart Stores, Inc., 270 F.3d 1007, 1013 (6th Cir. 2001) (“Only those specific statements within a

general confession which are self-inculpatory are admissible under Rule 804(b)(3), however.”).

It would seem likely that Fields already understood at the time of his deposition that he was

subject to liability under CERCLA as a landfill owner and operator. According to a joint status

report filed in the enforcement action several months before Fields was deposed, the parties had

been seriously exploring settlement and wished to depose Fields “to aide in settlement.” Case No.

2:97-cv-984, Doc. 11. Fields then had an incentive to point fingers at others who might share in the

blame and the costs of remedial action. His testimony that he was aware of other entities who

“would be of interest in pursuing” suggests that his statements do not fit the traditional mold of a

statement against interest. Fields Dep. at 154. As the United States Supreme Court has instructed,

“[t]he district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-

inculpatory because it is part of a fuller confession, and this is especially true when the statement

implicates someone else.” Williamson, 512 U.S. at 601.

Goodyear next argues that the residual hearsay exception of Rule 807 applies. The rule

permits a court to admit hearsay if “the statement is supported by sufficient guarantees of

trustworthiness” and “is more probative on the point for which it is offered than any other evidence

that the proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a). Goodyear argues

that the Fields statements are trustworthy because they were given under oath and under cross-

examination by the Ohio Attorney’s General and are consistent with statements Fields later made to

a private investigator.

The Court finds that Goodyear has not demonstrated at this early stage that the Fields

deposition should be admitted under the residual exception to hearsay, an exception which “should

only be used sparingly.” Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 113 (3d Cir.

2001). See also FTC v. E.M.A. Nationwide, Inc., 2013 WL 4545143, *2 (N.D. Ohio) (Rule 807 to be

used “rarely” and only in “exceptional circumstances”). Though Fields was under oath, he likely had

an incentive to implicate other parties to share in his liability and he was not subjected to cross-

examination by any of the parties he named. See 2 McCormick On Evid. § 324 (8th ed.) (among the

factors a court should consider is the declarant’s motivation to speak, whether the declarant was

subject to cross-examination, and the relationship between the declarant and the person to whom

the statement was made).

As importantly, Goodyear has not demonstrated that the Fields deposition is more probative

on the points for which it is offered than any other evidence which could be obtained through

reasonable efforts. Goodyear argues that Fields, as owner and operator of the Landfill, possessed

personal knowledge unmatched by any one else. It may be true that Fields was the potentially the

best single source of information, but Goodyear has not attempted to show that it could not

reasonably obtain records from SCS, defendants and third parties of the waste disposal activities

which occurred at the Landfill. Nor has Goodyear shown why witnesses with personal knowledge

of those activities could not be deposed.

Thus, the Court finds that Goodyear has not yet demonstrated that the Fields deposition is

admissible under an exception to the rule against hearsay.

B. Fields Interview Notes

An interview was conducted of Fields in October 1998 and notes were taken. Goodyear

believes that the interview was conducted by investigator Bruce Kingsland, as the notes are attached

to a report Kingsland later authored in 2006 for Goodyear. Doc. 64-12. According to the notes,

Fields identified many “top generators” of “waste of concern.” Id. at PAGEID 906. For instance,

he stated that Masco’s predecessor, Merillat, sent sawdust to the Landfill every day and that tannic

acid from Merillat’s spray paint line “probably” got into the Landfill. Id. Fields also stated that

Conagra’s alleged predecessor, Banquet, generated dock waste that would have included a pesticide

used for fly control. Id. at PAGEID 907. Fields made other statements regarding the activities of

other defendants and non-parties.

Defendants correctly observe that Goodyear has failed to authenticate the Fields interview

notes. Goodyear has not submitted a sworn statement of Kingsland that the notes are ones that he

took. Fed. R. Evid. 901.

But even if plaintiff’s assertion that Kingsland took the notes were to be accepted, a hearsay-

within-hearsay problem remains. One layer of hearsay is what Fields told Kingsland, and the second

is what Kingsland recorded. To be admissible, each layer must either be excluded from the

definition of hearsay or fall within a hearsay exception. Fed. R. Evid. 805; Back v. Nestle USA, Inc.,

694 F.3d 571, 577–78 (6th Cir. 2012).

Goodyear contends that the statements made by Fields are admissible under the residual

exception. Similar to what it argued with respect to the Fields deposition, Goodyear contends that

his statements are trustworthy because he was facing liability for the Landfill at the time of the

interview, had extensive knowledge of the Landfill’s operations, and gave statements consistent with

his deposition testimony.

The Court finds that Goodyear has not established at this stage that the residual hearsay

exception applies to the interview statements. The interview of course was not taken under oath or

subject to cross-examination, and Fields most likely had an incentive to blame others for the

violations which the Ohio EPA had found at the Landfill. Additionally, Goodyear has not made a

showing that it cannot obtain other probative evidence relating to defendants’ Landfill activities

through reasonable discovery efforts.

Goodyear has also failed to establish an exception to the other layer of hearsay – Kingsland’s

notes. Goodyear contends that they are admissible under the business records exception, Fed. R.

Evid. 803(6), because Kingsland regularly prepared interview notes as an investigator. However,

Goodyear has not yet provided a certification under Rule 803(6)(D) that the conditions of the

business records exception are satisfied. And there is no evidence on the record to establish the

nature of the circumstances under which Kingsland conducted the interview, some 8 years before

Goodyear hired him to prepare a report.

The Court therefore finds that Goodyear has not presented the Fields interview notes in

admissible form.

C. Kingsland Report

Goodyear’s legal department hired Kingsland to conduct an investigation in 2006 of the

Landfill’s historic activities. The investigation culminated in a Report dated April 28, 2006. Doc.

64-12. The Report contained a listing of the parties whom Kingsland believed were “potentially

responsible.” Id. at PAGEID 842. For each party, Kingsland summarized the evidence he had

found indicating that they had disposed of potentially hazardous waste at the Landfill. The evidence

included the Fields interview notes, documents given to him by Goodyear, Ohio EPA records, and

interviews he conducted of numerous individuals, including former employees of the Landfill, waste

hauler drivers, Goodyear employees, and government employees and inspectors.

Goodyear has submitted the Kingsland Report, as well as attachments belonging to the

Report, in support of its motions for summary judgment. Docs. 64-11, 64-12, 65-15, 68-15.

Goodyear relies on the Report to establish its claim that each of the defendants arranged for the

disposal of certain wastes at the Landfill.

The Court finds that the Kingsland Report must be disregarded at this stage for two reasons.

First, it has not been authenticated – a point that Goodyear does not dispute. Second, the Report

contains hearsay within hearsay. One of those pieces of double-hearsay evidence is the Fields

interview notes discussed above. Other pieces include the notes Kingsland took of the statements

made by various individuals whom he interviewed in 2006. Doc. 64-12 at PAGEID 855–57, 860–

61, 864–67, 879–98, Doc. 68-15. Goodyear again argues that the interviewee’s statements fall within

the residual hearsay exception, but the Court must reject that assertion at this time. Goodyear

argues only, in blanket fashion, that the interviewees had personal knowledge of the Landfill’s

operations. Doc. 103 at PAGEID 8234. Goodyear has not made particularized showings of

trustworthiness for any of the interviewee’s statements, nor has it demonstrated why reasonable

discovery efforts would not suffice to produce admissible evidence relating to the activities at the

Landfill. Turning to the hearsay layer of Kingsland’s notes, again Goodyear argues that they fit

within the business records exception, but Goodyear has not made the requisite certification under

Rule 803(b)(D).

Once stripped away of hearsay-within-hearsay statements, the Report is primarily left with

Kingsland’s summary assessments of the potentially responsible parties. Doc. 64-12 at PAGEID

848–53. But Kingsland is not an expert witness, does not have personal knowledge of the activities

at issue, and conducted his investigation for Goodyear’s legal department with a motive to identify

parties with whom Goodyear could share the liability for the clean-up costs.

Thus the Court finds that the Kingsland Report must be disregarded as inadmissible for

purposes of Goodyear’s motions for summary judgment.

D. Brown Affidavits

Finally, attached to each motion for summary judgment is an affidavit of plaintiff’s expert,

Dr. Kirk W. Brown, who opines on the hazardous substances that each of the defendants’ waste

streams would have contained. See, e.g., Doc. 64-6 (relating to R.J. Reynolds).

Defendants object to the affidavits because Brown relied on the Fields deposition and the

Fields interview notes to form his opinions. Defendants argue that an opinion of an expert should

be excluded at summary judgment if the facts relied upon by him are not in evidence.

In response Goodyear cites Rule 703. The rule provides that the facts or data on which an

expert bases his opinion “need not be admissible for the opinion to be admitted” if “experts in the

particular filed would reasonably rely on those kinds of facts or data in forming an opinion on the

subject.” Fed. R. Evid. 703.

Goodyear’s argument misses the mark at this stage. By Rule 703’s own terms, the facts used

by an expert to form an opinion must be reliable. See Isely v. Capuchin Province, 877 F. Supp. 1055,

1064 (E.D. Mich. 1995) (“By permitting the use of otherwise inadmissible evidence (such as hearsay

about studies or experiments conducted by others), the Rule clearly contemplates a foundational

requirement that the underlying data which supports an expert’s opinion be reliable.”). Goodyear

has made no effort to show that experts in the field would reasonably rely on sources like the Fields

deposition or interview notes in forming opinions about the hazardous substances present at the

Landfill.

Further, Rule 703 does not waive the requirement that an expert opinion have a reliable

foundation. “[T]he rule does not give an expert free reign to base an opinion on any evidence,

including inherently unreliable or untrustworthy evidence. . . . Instead, the Advisory Committee

Notes caution that Rule 703 limits the bases of expert opinions to otherwise inadmissible evidence

that is also reliable in order to prevent Rule 703 from creating a ‘back-door’ exception to the other

rules of exclusion . . . .” Trepel v. Roadway Exp., Inc., 194 F.3d 708, 719–20 (6th Cir. 1999)

(Suhrheinrich, J., concurring in part and dissenting in part).

As discussed above, the Fields deposition testimony and interview notes must presently be

disregarded precisely because Goodyear has not established their trustworthiness. Goodyear cannot

attempt to get those materials into evidence by laundering them through their expert. See United

States v. Tipton, 269 Fed. App’x 551, 560 (6th Cir. 2008) (rejecting attempt to use expert “as a

‘conduit’ for the admission of the Defendants’ otherwise inadmissible hearsay statements regarding

their assets”); Fish Farms P’ship v. Winston-Weaver Co., 531 Fed. App’x 711, 712 (6th Cir. 2013)

(“Although Dr. Mills was permitted by [Rule] 703 to use this hearsay evidence to reach his opinion,

the evidence cannot be used for the truth of the matter, and the district court correctly decided not

to consider it for that purpose.”); Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013)

(excluding expert reports which were “by and large undergirded by hearsay statements” because

“[a]lthough the Rules permit experts some leeway with respect to hearsay evidence, Fed. R. Evid.

703, a party cannot call an expert simply as a conduit for introducing hearsay under the guise that

the testifying expert used the hearsay as the basis of his testimony.”) (internal quotation marks

omitted).

The Court thus disregards the Brown affidavits as inadmissible for purposes of Goodyear’s

motions for summary judgment.

E. Summary

In the absence of the Fields deposition, Fields interview notes, Kingsland Report, and

Brown affidavits, Goodyear has not established the fourth element (arranger liability) of its

CERCLA claims and its motions for summary judgment must be denied.

VI. General Mills’ Cross-Motion for Summary Judgment

Goodyear alleges that General Mills is liable for Jeno’s alleged dumping of highly-acidic food

sludge at the Landfill. Pillsbury acquired Jeno’s in 1985, and Conagra acquired Pillsbury in 2000. See

Waytashek Decl. (Doc. 92-1) at PAGEID 5262, ¶¶ 3, 5.

General Mills argues that it is not liable as a matter of law for Jeno’s alleged violations.2

General Mills asserts that the 1985 Purchase Agreement between Jeno’s and Pillsbury disclaimed

that Pillsbury was assuming any of Jeno’s liabilities. The Agreement provided: “Except as

specifically provided in this Paragraph II, it is expressly understood and agreed that Pillsbury does

not assume and shall not be responsible for any liability or obligation of Jeno’s of any nature

whatsoever.” Doc. 97 at PAGEID 6193, ¶ II.

2 Conagra also contests successor liability but did not move for summary judgment on the issue.

Because the Court finds that Goodyear’s motion for summary judgment as to Conagra should be

denied for the reasons stated above, it need not address Conagra’s arguments concerning successor

liability.

State law determines successor liability under CERCLA. Hobart Corp. v. Dayton Power & Light

Co., 407 F. Supp. 3d 732, 739 (S.D. Ohio 2019). The Purchase Agreement selects Minnesota law to

govern. Doc. 97 at PAGEID 6254, ¶ XXII. Under Minnesota law, a successor is generally not

liable for the obligations of the transferor corporation. Niccum v. Hydra Tool Corp., 438 N.W.2d 96,

98 (Minn. 1989). But a successor is liable when the transferor “sells or otherwise transfers all of its

assets to another corporation, and either (1) the successor expressly or impliedly agreed to assume its

debts, (2) the transaction amounts to a merger or consolidation, (3) the successor is merely a

continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape

liability for the transferor’s debts.” A.P.I., Inc. Asbestos Settlement Tr. v. Home Ins. Co., 877 F. Supp. 2d

709, 734 (D. Minn. 2012) (internal quotation marks omitted).

The parties have focused their briefing on the first exception. General Mills cites Paragraph

II of the Agreement in arguing that the parties expressly disclaimed that Pillsbury was assuming

Jeno’s liabilities. Goodyear counters that the disclaimer was accompanied by “except as specifically

provided” language and that the Agreement then outlined several pages worth of liabilities and

obligations which Pillsbury had agreed to assume.

Under Paragraph 2.1 of the Agreement, Pillsbury agreed to assume liabilities relating to

contracts “listed in the Disclosure Schedule pursuant to Paragraph 4.17.” Doc. 97 at PAGEID

6194, ¶ 2.1. But there is an evidentiary problem – General Mills acknowledges that the copies of the

Agreement kept in its corporate archives are missing the page (page 31) in which most of Paragraph

4.17 appeared. Id. at PAGEID 6217–18 (showing that Paragraph 4.17 started at the very bottom of

page 30 and ended on page 32); Waytashek Decl. at PAGEID 5262, ¶¶ 3–4 (stating that General

Mills’ copies are missing page 31, as well as two other pages).

Goodyear argues that a reasonable inference could be drawn about the effect of the missing

paragraph by looking at context. Though Paragraph 4.17 is largely missing, the Disclosure Schedule

referenced in Paragraph 2.1 is attached to the Agreement. Doc. 97-1 at PAGEID 6916. Among the

contracts listed in the Disclosure Schedule are six trash removal contracts between SCS and Jeno’s.

Goodyear contends that this means Pillsbury assumed all liabilities relating to the trash removal

contracts with SCS. Goodyear argues that CERCLA arranger liability arises out of the trash removal

contracts because it was through those contracts that Jeno’s arranged for the disposal of its waste

containing hazardous substances.

General Mills responds that Goodyear’s argument regarding what the missing page might say

is speculative. General Mills further contends that it is too big of a leap to extend the assumption of

liability for the performance of trash removal contracts to an assumption of environmental liabilities.

And General Mills believes that the trash removal contracts may not have even related to the

Landfill at issue, but perhaps concerned the disposal of waste at other landfills in the area.

The Court agrees with General Mills’ view that trying to argue what Paragraph 4.17 might

have said is currently too speculative. But that counsels against granting summary judgment to

General Mills. The parties have not had an opportunity to conduct discovery, which possibly could

produce the missing page or shed light on what Paragraph 4.17 said through, for example, deposing

the individuals who negotiated the Agreement. Moreover, accepting that the Disclosure Schedule

likely will play a part in the ultimate analysis of successor liability, the Court finds that there are

significant factual and legal issues which need to be developed. Those issues include whether the

trash removal contracts listed in the Disclosure Schedule included waste disposal at the Landfill and,

if so, whether an assumption of liability for a trash removal contract can be construed as

encompassing any environmental liabilities that might follow the disposal of the waste.

The Court thus denies the cross-motion of General Mills for summary judgment.

VII. Conclusion

Accordingly, plaintiffs’ motions for partial summary judgment (docs. 64, 65, 66, 67, 68, 69,

70, 71) are DENIED WITHOUT PREJUDICE so the parties can conduct discovery.

Defendants’ motion in limine (doc. 88) is GRANTED IN PART and DENIED IN PART.

It is granted as to defendants’ request that the Court disregard the Fields deposition, Fields interview

notes, Kingsland Report, and Brown affidavits in considering plaintiffs’ motions for partial summary

judgment. It is denied as premature as to defendants’ request that the exhibits be excluded from

trial. See Hobart Corp. v. Dayton Power & Light Co., No. 3:13-CV-115, 2019 WL 4602177, at *1 (S.D.

Ohio Sept. 23, 2019) (“Courts are generally reluctant to grant broad exclusions of evidence in limine,

however, because a court is almost always better situated during the actual trial to assess the value

and utility of evidence.”) (internal quotation marks omitted).

Defendant General Mills’ cross-motion for summary judgment (doc. 92) is DENIED

WITHOUT PREJUDICE.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: March 18, 2022