Von Duprin LLC v. Moran Electric Service, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 20-1711 & 20-1793

VON DUPRIN LLC,

Plaintiff-Appellee, Cross-Appellant,

v.

MAJOR HOLDINGS, LLC and

MAJOR TOOL AND MACHINE, INC.,

Defendants-Appellants, Cross-Appellees,

and

MORAN ELECTRIC SERVICE, INC.,

Defendant, Cross-Appellee.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16-cv-01942 — Tanya Walton Pratt, Chief Judge.

____________________

ARGUED MARCH 30, 2021 — DECIDED SEPTEMBER 3, 2021

____________________

Before KANNE, BRENNAN, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. This is a complex environmental

cleanup case out of Indianapolis, Indiana. Over several

2 Nos. 20-1711 & 20-1793

decades, owners and operators of industrial facilities dis-

posed of chemical solvents used in manufacturing processes.

The solvents have degraded over time and have seeped into

the groundwater and soil in the surrounding residential area.

Investigations showed that vapors emitting from the under-

ground contamination have intruded into homes and a local

park.

Von Duprin LLC, whose predecessor in interest manufac-

tured security hardware and once owned property in the area,

undertook cleanup efforts and then sought to recover some of

those costs as well as future remediation costs. Von Duprin

sued former and current owners and operators of adjoining

properties under the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act—a federal environ-

mental statute often shorthanded as CERCLA. Following a

bench trial, the district court found that Von Duprin and two

other former or current owners and operators in the area bore

responsibility for portions of the environmental harm. The

court then assigned liability among and between all three par-

ties. Before us now are an appeal and cross-appeal from

lengthy proceedings in the district court.

While we see no error in many of the district court’s rul-

ings, we vacate the court’s threshold determination under

§ 107(a) of CERCLA that liability for remediating the environ-

mental harm is divisible—capable of being apportioned on

the basis of principles of causation—among and between the

parties to this litigation. In the end, then, we affirm in part and

vacate and remand in part for additional proceedings.

Nos. 20-1711 & 20-1793 3

I

A. The Properties at Issue

The environmental harm developed over at least the last

50 years. The four relevant and adjacent properties, each in

northeast Indianapolis, have changed hands over the years.

We start with the Von Duprin Property. Von Duprin LLC’s

predecessor, Von Duprin Inc., owned the property for over 40

years and during that time manufactured security hardware

and safety products. The firm used degreasers and a variety

of chemical products, including trichloroethylene (TCE) and

perchloroethylene (PCE). Operations ceased in 1986, and a

manufacturer named Threaded Rod Company, Inc. acquired

the Von Duprin Property in 1987.

Next up is the Moran Property. Moran Electric Service

Inc., a company that used degreasers as well as TCE and other

cleaning agents in connection with repairing electrical mo-

tors, owned and operated this property from 1946 to 1996. In

2005, a company called Major acquired the Moran Property.

Now the Ertel Property. Ertel Manufacturing, a manufac-

turer of automotive engine parts, owned this property from

1917 to 1998. The firm used chlorinated solvents like TCE and

PCE in its manufacturing processes. The Ertel Property

changed hands in 1998, only later to be abandoned. In 2007

Major leased the Ertel Property from the City of Indianapolis.

Major acquired full ownership in 2013.

The Zimmer Paper Property, itself subdivided into the

Zimmer Paper Facility and the Zimmer Packaging Facility, is

the fourth property. Zimmer Paper Products, Inc. owned the

property from 1986 to 2006, during which time the company

used and disposed of chemical solvents. These properties

4 Nos. 20-1711 & 20-1793

were owned and operated by Moran from 1967 to 1984. Major

acquired the Zimmer Paper Facility in 2007 and later acquired

the Zimmer Packaging Facility in 2013.

Major, which we use for simplicity in referring to Major

Holdings LLC and Major Tool & Machine, is the current

owner of the Ertel Property, Moran Property, and Zimmer Pa-

per Property. No one alleges that Major released any hazard-

ous materials at any of its properties, but current owners or

operators of a site where hazardous materials were released

may be held liable under CERCLA without having caused a

release.

So the overall ownership history breaks down this way:

Properties Former Owner(s) Current

Owner

Von Duprin Property Von Duprin LLC Threaded

Rod

Moran Property Moran Electric Major

Service

Ertel Property Ertel Manufacturing Major

Zimmer Paper Moran Electric Major

Property (divided into Service

the Zimmer Paper Zimmer Paper

Facility and the Products

Zimmer Packaging

Facility)

All agree that, at various times over the twentieth century,

chlorinated solvents, including PCE and TCE, were dumped

at and around the Von Duprin, Moran, Ertel, and Zimmer

Properties. These solvents are toxic and over time they seeped

Nos. 20-1711 & 20-1793 5

into the soil and groundwater, eventually commingling into a

groundwater plume—a collection of groundwater mixed

with hazardous contaminants underground—which flows

from northeast (where the properties are located) to south-

west, covering approximately three-quarters of a mile. Of par-

ticular concern is that vapor emissions from the plume can

migrate upwards from the groundwater and through the soil,

resulting in vapor intrusion into structures. About 40 homes

and an indoor facility at the public park have experienced this

intrusion.

B. Von Duprin’s Lawsuit

After several environmental assessments and investiga-

tions of the Von Duprin Property, the Indiana Department of

Environmental Management or IDEM, determined in March

2009 that soil and groundwater at and around the property

had been contaminated by chlorinated solvents. In 2013 IDEM

informed Von Duprin that it could be a potentially responsi-

ble party or PRP under Indiana law. Von Duprin then began

its own investigation into the contamination. In time the com-

pany entered Indiana’s cleanup program and performed sub-

stantial remediation in the area. After it, too, received a poten-

tial liability notice from IDEM and began to take remedial ac-

tion, Threaded Rod, the current owner of the Von Duprin

Property, filed a suit against Von Duprin and others to re-

cover costs. That case later settled.

Von Duprin has continued to undertake remediation ef-

forts at a cost of $3.2 million. In 2016 the company invoked

§ 107(a) of CERCLA and turned to federal court to recover

those costs from current and former owners of adjacent prop-

erties—Moran, Zimmer, and Major.

6 Nos. 20-1711 & 20-1793

Moran and Major responded by going on the offensive

and filing counterclaims and crossclaims against Von Duprin

under § 113(f) of CERCLA. Zimmer never appeared or re-

plied to the original complaint, so the district court entered a

default against the company under Federal Rule of Civil Pro-

cedure 55(a).

C. An Overview of CERCLA

Some background on CERCLA is essential to understand-

ing the district court’s decision and issues before us on appeal.

Over many decades, Congress has created legal mecha-

nisms to encourage cleanup and continued stewardship of

real property. A prime example came with the enactment of

CERCLA in 1980. Congress designed the statute to “promote

the timely cleanup of hazardous waste sites and to ensure that

the costs of such cleanup efforts were borne by those respon-

sible for the contamination.” Burlington Northern & Santa Fe

Ry. Co. v. United States, 556 U.S. 599, 602 (2009) (cleaned up).

The statute operates in part by encouraging, and directly

providing the vehicle for, private parties to invest in environ-

mental response, including remediation, and then to recover

at least part of those response costs from other potentially re-

sponsible parties or PRPs.

In United States v. Atlantic Research Corporation, the Su-

preme Court held that § 107(a) of CERCLA, codified at 42

U.S.C. § 9607(a), provides PRPs who incurred response costs

with a cause of action to recover certain of those costs from

other PRPs. See 551 U.S. 128, 131, 139 (2007). To establish a

claim for cost recovery under § 107(a), a plaintiff must show

that (1) the site in question is a “facility”; (2) the defendant

qualifies as a PRP; (3) the facility experienced a release or

Nos. 20-1711 & 20-1793 7

threatened release of hazardous substances; and (4) the plain-

tiff incurred costs consistent with the National Contingency

Plan in responding to the release. See Env’t Transp. Sys., Inc.,

v. ENSCO, Inc., 969 F.2d 503, 506 (7th Cir. 1992).

Congress defined PRPs to include four entities: current

owners and operators of a site that experienced a disposal of

hazardous material, past owners or operators at the time of

the release, persons who arranged for disposal of a hazardous

substance at a site, and parties who transported a hazardous

substance to a site. See 42 U.S.C. § 9607(a)(1)–(4). Everyone

agrees that each party to this litigation qualifies as a PRP un-

der CERCLA.

Joint and several liability is the norm for PRPs under

§ 107(a). The exception is divisible liability—commonly called

apportioned liability—where liability is assigned to PRPs ac-

cording to the portion of the underlying environmental harm

each caused. See Burlington Northern, 556 U.S. at 613.

PRPs who find themselves sued under § 107(a) often file a

counterclaim against the original plaintiff on the basis that the

party is itself a PRP who caused part of the harm and thus

should contribute to any ultimate remediation liability. These

so-called contribution counterclaims proceed under § 113(f)

of CERCLA, which authorizes the allocation of liability based

on “such equitable factors as the court determines are appro-

priate.” 42 U.S.C. § 9613(f)(1).

At this point, what is essential to recognize is that appor-

tioned (divisible) liability and allocated liability are not one

and the same under CERCLA. To the contrary, they are dis-

tinct, with apportioned liability imposed on the basis of

8 Nos. 20-1711 & 20-1793

principles of causation and allocated liability the product of

an application of equitable factors.

Two more background points help frame the issues on ap-

peal. First, not all remediation costs are eligible for recovery

under § 107(a). Rather, Congress has limited recovery costs to

those incurred consistent with the National Contingency Plan

or NCP. See 42 U.S.C. § 9607(a)(4)(B). The NCP establishes

how private parties can best perform removal and remedial

actions to ensure the achievement of CERCLA-quality

cleanup. See 40 C.F.R. § 300.

Second, CERCLA provides an affirmative defense to reme-

diation liability to PRPs who did not release hazardous mate-

rials themselves but remain potentially liable by virtue of be-

ing a current owner of a site where a prior release occurred.

Added in 2002, Congress called this defense the “bona fide

prospective purchaser” or BFPP defense. See 42 U.S.C.

§ 9607(q)(1)(C). To qualify, a PRP must, in connection with the

original purchase of the property in question, and among

other things, make “all appropriate inquiries into the previ-

ous ownership and uses of the facility in accordance with gen-

erally accepted good commercial and customary standards

and practices.” 42 U.S.C. § 9601(40). In that way, the BFPP de-

fense shields from CERCLA liability those who invest in con-

taminated lands and exercise diligence, do not impede

cleanup efforts, and meet ongoing obligations.

D. Summary Judgment

After a period of initial discovery, the parties filed cross

motions for summary judgment. The district court’s ruling on

the divisibility of remediation liability—whether the norm of

joint and several liability for PRPs should apply or instead

Nos. 20-1711 & 20-1793 9

whether each PRP should bear responsibility to the degree

they caused the underlying environmental harm—is a sub-

stantial issue on appeal. In granting in part Moran and Ma-

jor’s motions for summary judgment, the district court deter-

mined that CERCLA liability was divisible and thus should

be apportioned among and between the PRPs.

The district court’s reasoning rested on two abbreviated

observations. First, the court observed (without much accom-

panying explanation) that the harm caused by the PRPs (Von

Duprin, Major, Moran, and Zimmer) was “theoretically capa-

ble of apportionment” and therefore divisible among them.

From there, and second, the district court pointed to Moran’s

expert witness, Dr. Adam Love, and, again without much

elaboration, observed that there was a “reasonable basis for

apportionment.” Who caused what harm and how much each

PRP, including Von Duprin, should contribute to the overall

remediation costs would, the district court concluded, be de-

cided at a bench trial.

At summary judgment the district court also concluded

that Major was a BFPP and thus could not be held liable for

response costs that Von Duprin (as the plaintiff) sought to re-

cover relating to the Moran Property and Zimmer Packaging

Facility.

E. The District Court’s Bench Trial

A six-day bench trial ensued in the summer of 2019. A bat-

tle of competing experts—all offering different perspectives

on which PRP caused what portion of the overall environ-

mental harm—defined much of the trial. Other witnesses tes-

tified about methods for allocating liability and whether the

10 Nos. 20-1711 & 20-1793

remediation costs incurred by Von Duprin were consistent

with the National Contingency Plan.

The district court’s ultimate Findings of Fact and Conclu-

sions of Law included these key rulings:

Recoverable Costs. The district court evaluated what portion

of Von Duprin’s costs were incurred consistent with the NCP

and therefore recoverable under § 107(a) of CERCLA. The

court concluded that $1.7 million of the $3.2 million Von

Duprin originally sought was recoverable, excluding the $1.5

million settlement with Threaded Rod from a previous law-

suit and $39,000 for the costs related to IDEM oversight.

Apportionment of Liability. The district court began by re-

newing its prior observation (from summary judgment) that

the environmental harm was “theoretically capable of appor-

tionment.” It then found that, based on the evidence pre-

sented at trial, a “reasonable basis for apportionment exists.”

The court did so by crediting Moran’s expert Dr. Adam Love’s

testimony as to how the harm could be apportioned among

the properties—even while noting that the nature of the con-

tamination made it impossible to differentiate the chemical

compounds once they enter the groundwater plume and

eventually vaporize.

In a section of its Conclusions of Law labeled “Apportion-

ment,” the district court held that Major was liable under

§ 107(a) as the current owner of the Ertel Property and Zim-

mer Paper Facility. Von Duprin, the court further concluded,

was liable as owner of the Von Duprin Property at the time of

a hazardous release. Moran was liable too, because it owned

the Moran Property at the time of a release. Since no party

Nos. 20-1711 & 20-1793 11

offered evidence of a release when Zimmer owned the facil-

ity, the district court assigned no liability to it.

Allocation of Liability. In a section labelled “Allocation,” the

district court then performed what it called “equitable alloca-

tion” by applying a series of factors, including the distin-

guishability of each party’s hazardous waste, the amount of

that waste, the toxicity of the contaminants at issue, the de-

gree of involvement of the parties in generating the waste, the

extent of each party’s cooperation with environmental au-

thorities to mitigate harm, and the overall care taken by each

party in handling the hazardous waste. These factors are com-

monly called the “Gore factors,” named after then-Congress-

man Albert Gore who proposed them as an amendment to a

1980 Superfund bill. See Env’t Transp. Sys, 969 F.2d at 508.

After listing these Gore factors, but without any explana-

tion as to whether or how each factor played into its allocation

analysis, the district court “apportioned” the response costs

as follows: 50% to the Von Duprin Property, 10% to the Ertel

Property, 20% to the Zimmer Paper Property, and 20% to the

Moran Property. Each party was held responsible for 100% of

the harm attributed to the property or properties that they

once owned or now own. The district court then took those

percentages and applied them to the total amount of Von

Duprin’s recoverable costs—$1.7 million—and found that

Von Duprin was responsible for $850,000, Major for $510,000,

and Moran for $340,000. The district court considered the

cross- and counterclaims filed by the parties to be resolved by

these liability allocations.

From there the district court ruled on Von Duprin’s re-

quest for a declaratory judgment entitling it to recover antici-

pated future remediation costs related to ongoing cleanup

12 Nos. 20-1711 & 20-1793

contamination at the adjoining properties. The court found an

award of future costs warranted because the company had es-

tablished its right to recover from the other PRPs for past re-

sponse costs. The district court therefore awarded Von

Duprin future costs in an amount to be determined based on

the same allocation percentages of liability for past costs

among the parties, conditioned on the company proving that

subsequent costs were both incurred consistent with the NCP

and related to contamination at the surrounding properties.

Major’s BFPP Defense. The district court further considered

Major’s request for a BFPP defense. At summary judgment,

the district court had concluded that Major was a BFPP (and

therefore shielded from liability under § 107(a)) for any harm

arising from the Moran Property and Zimmer Packaging Fa-

cility. Based upon the evidence presented at trial, however,

the district court reached the opposite conclusion for Major’s

two other properties, the Ertel Property and Zimmer Paper

Facility. Major was liable, the district court continued, for

harm resulting from those two properties because the com-

pany could not show that it had satisfied the “all appropriate

inquiries” requirement of the BFPP defense.

Remaining State Law Claims. Finally, the district court sum-

marily disposed of Von Duprin’s state law claims, observing

that ruling in the company’s favor on those claims would

amount to a prohibited double recovery.

F. Major’s Appeal and Von Duprin’s Cross-Appeal

Major appealed and Von Duprin filed its own cross-ap-

peal.

Major appeals the district court’s decision to deny it the

benefit of the BFPP defense to liability for its ownership of the

Nos. 20-1711 & 20-1793 13

Zimmer Paper Facility and the Ertel Property. Major also

maintains that Von Duprin failed to prove its response costs

were incurred consistent with the NCP. Finally, Major chal-

lenges the district court’s calculation of damages, contending

that the district court conflated the allocation and apportion-

ment processes, resulting in a damages award unsupported

by the evidence.

Von Duprin cross-appealed, arguing that the district

court’s liability assignment erred at an earlier step: it should

never have concluded that the harm was capable of appor-

tionment. In Von Duprin’s view, the district court should

have held the defendants jointly and severally liable. At a

more granular level, Von Duprin also challenges the district

court’s failure to exclude Dr. Love’s testimony as unreliable.

For its part, Moran asks us to affirm the district court in

full.

II

We begin with a word on appellate jurisdiction. Upon

docketing Major’s appeal and Von Duprin’s cross-appeal, we

questioned whether the case had reached finality in the dis-

trict court and directed the parties to brief the question. What

concerned us was that the district court’s judgment made no

mention of Zimmer’s default, how the court resolved Moran

and Major’s counterclaims, and the amount of prejudgment

interest owed Von Duprin as part of its damages award. In

these ways, the district court’s judgment was deficient, as it

invited the impression that the court had entered a partial

judgment under Federal Rule of Civil Procedure 54(b) and

thus not resolved all claims against all parties. See Gen. Ins.

Co. of America v. Clark Mall Corp., 644 F.3d 375, 378–80 (7th Cir.

14 Nos. 20-1711 & 20-1793

2011) (explaining scenarios in which 54(b) judgments provide

sufficient finality for purposes of appellate jurisdiction).

Aided by the parties’ briefing of the finality question, we

are confident in our jurisdiction. The district court’s final

judgment order expressly accounted for 100% of the allocated

liability by assigning amounts owed to the pertinent parties,

thereby necessarily resolving Von Duprin’s primary claim

under § 107(a) as well as Moran and Major’s counterclaims for

contribution under § 113(f). We interpret the district court’s

silence on Zimmer to mean—as everyone agrees—that Zim-

mer, despite its default, owes nothing under the terms of the

judgment. To be sure, the district court should have entered

formal default judgment against Zimmer under Rule 55. And

while the district court also should have specified the pre-

judgment interest owed Von Duprin, the failure to do so does

not indicate a lack of finality because the computation is

“readily ascertainable from the record through only a minis-

terial calculation” and, even more, the docket shows that Mo-

ran has since paid the amount owed. Student Loan Marketing

Ass’n v. Lipman, 45 F.3d 173, 177 (7th Cir. 1995).

In these circumstances, then, we have no doubt the case

reached finality in the district court and that we may proceed

to the merits of the questions presented on appeal.

III

On the merits, we start with Von Duprin’s challenge to the

district court’s threshold determination at summary judg-

ment that remediation liability should not be joint and several

but instead apportioned among Major, Moran, and Zimmer

as the PRPs according to the environmental harm caused by

each company. Major challenges the district court’s resolution

Nos. 20-1711 & 20-1793 15

of its counterclaim seeking contribution from Von Duprin un-

der § 113(f) of CERCLA for its own share of the remediation

liability. Major sees the district court’s ultimate allocation of

liability as unsupported by the evidence presented at the

bench trial.

Both Von Duprin and Major are right to find fault with the

district court’s liability determinations. We see two errors.

First, the district court applied incorrect substantive and pro-

cedural standards in concluding at summary judgment that

the environmental harm and attendant CERCLA liability

could be apportioned. Second, after the bench trial, the district

court conflated the concepts of apportionment and allocation

and left unexplained the factors guiding its ultimate assign-

ments of liability. These two errors interrelate in ways that

leave us no choice but to vacate the district court’s judgment

and to remand for further proceedings.

A. Apportionment at Summary Judgment

Section 107(a) of CERCLA imposes “strict liability” on

PRPs for response costs resulting from a release of hazardous

materials. Burlington Northern, 556 U.S. at 608. While the stat-

utory text is silent on the scope of liability, the Supreme Court

has explained that Congress intended that question to “‘be

determined from traditional and evolving principles of com-

mon law.’” Id. at 613 (quoting United States v. Chem-Dyne

Corp., 572 F. Supp. 802, 808 (S.D. Ohio 1983)).

The primary guideposts come from the Restatement (Sec-

ond) of Torts. And we know from the Restatement that

“where two or more persons cause a single and indivisible

harm, each is subject to liability for the entire harm.” Chem-

Dyne, 572 F. Supp. at 810 (citing Restatement (Second) of

16 Nos. 20-1711 & 20-1793

Torts, § 875). The imposition of joint and several liability

holds each party responsible for the entirety of the harm. See

id.

The Restatement explains that liability may be divided—

or apportioned—“when two or more persons acting inde-

pendently caused a distinct or single harm for which there is

a reasonable basis for division according to the contribution

of each,” with each responsible party being “subject to liabil-

ity only for the portion of the total harm that he has himself

caused.” Id. (citing Restatement (Second) of Torts § 433A). Be-

cause “[n]ot all harms are capable of apportionment,” the Su-

preme Court has emphasized that “CERCLA defendants

seeking to avoid joint and several liability bear the burden of

proving that a reasonable basis for apportionment exists.”

Burlington Northern, 556 U.S. at 614. The facts and evidence

must permit a “reasonable basis” for dividing liability among

PRPs, as “arbitrary apportionment for its own sake” is incon-

sistent with CERCLA’s liability scheme. See id. at 614 (cita-

tions omitted).

As a practical matter, joint and several liability often re-

flects the norm in complex environmental cleanup cases be-

cause most circumstances reveal numerous disposers of waste

over long periods of time where after-the-fact identification of

who contributed what and thus who caused what portion of

the present-day harm at issue is exceptionally difficult to as-

certain with reliability. A leading case in this area—Chem-

Dyne, from which the Supreme Court took direction in Bur-

lington Northern—reinforced this precise reality. See Chem-

Dyne, 572 F. Supp. at 810–11 (declining at summary judgment

to determine that liability could be apportioned because the

evidence, when viewed in the light most favorable to the non-

Nos. 20-1711 & 20-1793 17

moving party, showed that multiple parties had contributed

to the contamination and over time much of the waste had

become commingled, making the divisibility determination

all the more complex). Our cases, too, have recognized that

joint and several liability is the norm in complex CERCLA

cases. See Metro. Water Reclamation Dist. v. N. Am. Galvanizing

& Coatings, Inc., 473 F.3d 824, 827 n.3 (7th Cir. 2007) (“The only

exception to joint liability is when the harm is divisible, but

this is a rare scenario.”); United States v. Capital Tax Corp., 545

F.3d 525, 535 (7th Cir. 2008) (“Divisibility is the exception,

however, not the rule.”).

The apportionment inquiry proceeds in two steps. See

Burlington Northern, 556 U.S. at 614 (laying out the two-step

process); United States v. NCR Corp., 688 F.3d 833, 838 (7th Cir.

2012) (applying that process) (“2012 NCR Corp.”). The thresh-

old question is whether the harm is even capable of appor-

tionment. See Burlington Northern, 556 U.S. at 614. Making

that determination requires an initial look at the underlying

facts to determine “what type of pollution is at issue, who

contributed to that pollution, how the pollutant presents itself

in the environment after discharge, and similar questions.”

2012 NCR Corp., 688 F.3d at 838. If the preliminary review of

the facts suggests that the harm can be apportioned, the in-

quiry then must take the second step of asking with even

more factual particularity whether the evidentiary record

provides a reasonable basis for actually apportioning the lia-

bility among the PRPs. See id.

Although the case law has described these inquiries as

proceeding in two distinct steps, it is often easier and more

practical to think of them as blending together and interre-

lated. Whether undertaken in one or two steps, the

18 Nos. 20-1711 & 20-1793

overarching question is whether, as a matter of record evi-

dence, the environmental harm (and responsibility for the re-

sponse costs at issue) can be apportioned by applying princi-

ples of causation.

Whether the evidence permits the apportionment of reme-

diation liability is itself often a contested question. Some par-

ties may insist the answer is yes, while others will urge the

district court to say no. That is what happened here: Major

and Moran contended that the evidence in the summary judg-

ment record allowed the district court to make findings as to

which PRP caused what environmental harm. Von Duprin

took the opposite position, arguing that the same record evi-

dence provided no reliable basis for making the findings nec-

essary to apportion the liability. The district court’s responsi-

bility at summary judgment was to ensure that Major and Mo-

ran, as both the moving parties and the parties with the bur-

den of showing that cost-recovery liability is divisible, had

identified materially uncontested record evidence allowing

that question to be resolved in the affirmative without a trial.

See Burlington Northern, 556 U.S. at 614 (explaining that the

burden for showing divisibility is on the moving party); Fed.

R. Civ. P. 56(a) (identifying the burden on the party moving

for summary judgment).

The point of this observation is to recognize and rein-

force—as the district court did in Chem-Dyne—the complexity

and intersection of the substantive liability question with the

procedural posture at which the question is being asked. The

apportionment inquiry must be answered at summary judg-

ment in a manner consistent with both the standards (and pro-

tections) of Rule 56 and the substantive burden imposed by

§ 107(a) of CERCLA on the party requesting that cost-

Nos. 20-1711 & 20-1793 19

recovery liability be divided among the PRPs instead of joint

and several.

The district court did not approach the apportionment

question this way at summary judgment. In granting Moran’s

motion for partial summary judgment on the apportionment

question, the district court determined that the harm was

“theoretically capable of apportionment” based on the opin-

ion offered by Moran’s expert, Dr. Adam Love. He opined

that there were distinct sites of pollution at each property that

could be used to effectively account for how much of the harm

emanated from each property. This was possible, Dr. Love ex-

plained, by examining the chemical composition of soil sam-

ples from those source sites to ascertain the concentration of

certain chemicals at each site and to compare those respective

concentrations to the chemical composition of the groundwa-

ter plume. In Moran’s view, Dr. Love’s analysis established

that the Von Duprin Property’s contributions to the total

harm were distinct from that of the other properties. This was

so, according to Dr. Love, because soil samples from the Von

Duprin Property showed a larger presence of PCE, whereas

the soil samples from the other properties—which sit upgra-

dient from Von Duprin, meaning that the groundwater flows

down toward the Von Duprin Property—show a larger pres-

ence of TCE. Thus, in Dr. Love’s opinion, responsibility for

the environmental harm at issue was reasonably apportiona-

ble based on the chemical composition at the source sites vis-

à-vis the composition of the plume.

Von Duprin disagreed, maintaining that liability should

be joint and several because the complexity of the underlying

facts showed that the harm was incapable of reliable appor-

tionment. The company supported this view by attacking Dr.

20 Nos. 20-1711 & 20-1793

Love’s opinion and raising larger questions about the feasibil-

ity of dividing the harm given the complexity of the underly-

ing facts. Dr. Love’s methodology, Von Duprin contended, re-

lied on soil samples collected well after large quantities of soil

had been removed from the properties and decades after re-

leases of hazardous waste. Von Duprin further offered its own

expert, John McInnes, who opined that the four properties all

played a part in releasing chlorinated solvents over many dec-

ades. Von Duprin also urged that apportionment was inap-

propriate because the toxic chlorinated solvents became indis-

tinguishable once they commingled in the groundwater

plume. These observations and facts, Von Duprin advanced,

precluded a finding of divisibility at summary judgment.

The district court reacted by seeing Von Duprin’s position

as a “concern [that] highlights a practical problem, not a the-

oretical one.” Indeed, the district court went even further, ob-

serving that Von Duprin’s concerns with the reliability of Dr.

Love’s apportionment analysis are “irrelevant to the question

of whether harm is divisible.”

Therein lies the misstep. The district court’s approach re-

flects two errors—one substantive and one procedural—that

interrelated in a way that sent the incorrect question to trial

and had the effect of relieving Major of its burden of showing

that liability should be apportioned instead of imposed jointly

and severally on each PRP.

The errors were the product of the district court approach-

ing the divisibility question at too high a level of generality,

taking too literally the use of the word “theoretically” in our

decision in 2012 NCR Corp. See 688 F.3d at 838. There we re-

stated the Burlington Northern test in terms of two steps. We

described the first step as one at which “we must determine

Nos. 20-1711 & 20-1793 21

whether the harm at issue is theoretically ‘capable of appor-

tionment.’” Id. (quoting Burlington Northern, 556 U.S. at 614).

The district court overread the adverb’s importance to the

test. After all, nearly everything in theory is capable of divi-

sion if examined at a high enough level of generality. But see-

ing the question in theoretical—rather than factual and evi-

dentiary—terms robs the necessary apportionment inquiry of

any meaningful content and leads to an analysis divorced

from the Supreme Court’s instructions in Burlington Northern

and the guiding principles in the Restatement (Second) of

Torts.

Indeed, we made much the same observation in 2012 NCR

Corp. itself. We emphasized that whether the environmental

harm at issue was capable of apportionment depended—at

the first step of the analysis—on many findings of fact. See 688

F.3d at 838. Here, however, the district court seemed to con-

clude that the remediation liability was divisible—at least at

the theoretical level—because Moran’s expert Dr. Love of-

fered that view. But stopping with that observation effectively

transformed the norm of joint and several liability in CERCLA

cost-recovery cases to divisible liability. Put another way, our

review of the summary judgment record leaves us of the view

that the district court stopped short of grappling with the

complexity inherent in a CERCLA cost-recovery case as wide-

ranging as this one. We do not read the Supreme Court’s Bur-

lington Northern decision as intending every asserted appor-

tionment defense to so easily clear the evidentiary hurdle de-

manded by the standard embodied in § 433A of the Restate-

ment.

Consider the complexity of the environmental harm at is-

sue. At least three different owners of four different properties

22 Nos. 20-1711 & 20-1793

released hazardous waste in different quantities and concen-

trations at different times over several decades, at least from

the 1960s to well into the 1980s. What is more, the record does

not establish when or in what amounts any of this pollution

occurred. And, as the district court acknowledged in its

posttrial findings of fact, once the hazardous chemicals en-

tered the groundwater, commingled, and vaporized, the indi-

vidual molecules that make up the plume became indistin-

guishable. Layer this reality onto the burden a party seeking

apportionment faces and the district court’s error becomes

clear. Rather than recognizing the rarity of divisible liability

in CERCLA cases, the district court instead treated the step-

one inquiry as satisfied by a threshold proffer of expert testi-

mony by Moran that the harm could be apportioned.

The district court’s error also manifests as a closely-related

procedural misstep. The error had the effect of all but elimi-

nating Moran and Major’s burden at summary judgment un-

der the substantive law of CERCLA. Federal Rule of Civil Pro-

cedure 56 permits entry of summary judgment only “if the

movant shows that there is no genuine dispute as to any ma-

terial fact and the movant is entitled to judgment as a matter

of law.” Here that was the defendants, Moran and Major, as

the parties that sought summary judgment on the question

whether the remediation liability was divisible. Recall too

that, as a substantive matter under CERCLA, the party con-

tending that the court should abandon joint and several lia-

bility in favor of divisible liability bears the burden of proving

that a reasonable basis for apportionment exists. See Burling-

ton Northern, 556 U.S. at 614.

The critical takeaway is to recognize that the substantive

law governing the parties’ claims (here, § 107(a) of CERCLA)

Nos. 20-1711 & 20-1793 23

and the procedural rule controlling whether summary judg-

ment is appropriate work in tandem. The Supreme Court un-

derscored this precise point in Anderson v. Liberty Lobby, Inc.:

“in ruling on a motion for summary judgment, the judge must

view the evidence presented through the prism of the sub-

stantive evidentiary burden.” 477 U.S. 242, 254 (1986). Stated

most succinctly, district courts, in deciding “whether a given

factual dispute requires submission to a jury[,] must be

guided by the substantive evidentiary standards that apply to

the case.” Id. at 255.

The district court charted a different course, one that did

not account at summary judgment for the substantive burden

Major and Moran would face at trial on the apportionment

question. The district court even seemed to require Von

Duprin to affirmatively disprove that the harm was capable

of apportionment. That was error, especially at the summary

judgment stage.

On the summary judgment record as we see it, there ap-

pears to have been a genuine dispute over material facts that

bore on the question whether the harm was capable of appor-

tionment. The district court should have viewed the trial as

the vehicle for resolving—as a definitive matter of evidence—

that question. By proceeding otherwise, the district court dis-

placed the norm of joint and several liability in favor of ap-

portionable harm, a subversion of the substantive law at odds

with CERCLA’s central design.

The district court’s error is not one we can correct on ap-

peal. Having taken our own fresh look at the summary judg-

ment record, we see the question whether remediation liabil-

ity is capable of apportionment as both contested and diffi-

cult. It was hotly contested by Von Duprin and Major and

24 Nos. 20-1711 & 20-1793

Moran—each presented evidence bearing on the questions

underlying the apportionment inquiry. And it is difficult be-

cause the overarching apportionment question that the par-

ties disagree over begets even more questions. The open ques-

tions include what role some variables—such as the length of

time between the actual discharge of the hazardous chemicals

and the chemical analysis of the soil on the properties, the re-

moval of soil on the properties as part of past remediation ef-

forts, and the commingling of the solvents once they entered

the groundwater—might play in deciding the feasibility of

determining who caused what harm with any remote confi-

dence. Determining whether liability can be apportioned re-

quires wrestling with these and other questions presented by

the complexity of the underlying facts.

Given how fact and context-specific the apportionment in-

quiry is—even at step one—we think it wiser to provide these

observations and give the district court another opportunity

to evaluate the question. In approaching this question anew,

the district court should analyze the facts and record evidence

at a higher level of particularity under the standards articu-

lated in the Restatement (Second) of Torts and the pertinent

case law.

Do not overread our conclusions. We break no new

ground on the law of apportionment in CERCLA cases. We

merely restate the high bar for parties arguing that apportion-

ment is appropriate in a given CERCLA cost-recovery action.

The district court did not take that into account and otherwise

failed in its summary judgment ruling to support its decision

to depart from the norm of joint and several liability with fac-

tual findings rooted in the record.

Nos. 20-1711 & 20-1793 25

B. Assignment of Liability After Trial

Our reversal of the divisibility determination at summary

judgment compels us to vacate the damages award for a fresh

liability calculation as a whole. But we need to address an ad-

ditional error by the district court. After determining that ap-

portionment was appropriate, the district court proceeded to

Major and Moran’s request for contribution under § 113(f)

and allocated the liability among the parties. While we can see

the ultimate liability awards, we cannot tell how the district

court weighed the equitable factors. The error, as we see it,

resulted from the district court treating apportionment and

allocation interchangeably—so much so that we cannot be

sure how the court arrived at its determinations of liability.

We are not quibbling with word choice. The distinction be-

tween apportioned liability and allocated liability is substan-

tive and important under CERCLA. These terms are far from

synonymous. Indeed, they refer to altogether separate statu-

tory provisions. Apportionment operates in a § 107(a) action

for the recovery of response costs, but only where the harm is

divisible. See Burlington Northern, 556 U.S. at 614. Allocated

liability, on the other hand, arises by operation of § 113(f). See

Atl. Rsch., 551 U.S. at 140. That provision authorizes PRP de-

fendants to seek contribution toward the liability from the

party seeking cost recovery in the first instance or from other

PRP defendants. As happened here, the defendants in a

§ 107(a) cost-recovery action typically bring a counterclaim

under § 113(f) for contribution from the plaintiff.

Allocation refers to the way liability is assigned in a con-

tribution claim. See NCR Corp. v. George A. Whiting Paper Co.,

768 F.3d 682, 689 (7th Cir. 2014) (“2014 NCR Corp.”). Unlike

apportionment, which is guided by principles of causation,

26 Nos. 20-1711 & 20-1793

§ 113(f) of CERCLA provides that courts allocate liability

among PRPs “using such equitable factors as the court deter-

mines are appropriate.” 42 U.S.C. § 9613(f)(1). It seems easiest

to think of the allocation analysis as more flexible and softer

than the apportionment analysis under § 107(a), which re-

quires more an application of principles of causation and a

form of contributory negligence. One court has described the

distinction more colorfully: “To apportion is to request sepa-

rate checks, with each party paying only for its own meal. To

allocate is to take an unitemized bill and ask everyone to pay

what is fair.” Yankee Gas Servs. Co. v. UGI Utilities, Inc., 852

F. Supp. 2d 229, 241–42 (D. Conn. 2012).

The district court exercises substantial discretion when al-

locating liability. As Congress put it, district courts must allo-

cate response costs using “such equitable factors as the court

determines are appropriate,” 42 U.S.C. § 9613(f)(1), a level of

discretion we have described as “broad.” 2014 NCR Corp., 768

F.3d at 700. But that discretion is not without limits, and the

“court’s ultimate decision must reflect CERCLA’s equitable

principles.” Id. at 701. We have previously vacated a district

court’s allocation of damages where the district court did not

adequately explain its rationale for evaluating some relevant

equitable factors and not others. See id. at 702. Just as we ob-

served in 2014 NCR Corp., we must vacate the judgment

where “we cannot be sure either that the court did, or that it

did not, adequately consider all of the circumstances before

makings its decision.” Id. at 703. Just so here.

After reaffirming its view that the harm was capable of ap-

portionment at summary judgment, the district court pro-

ceeded to a bench trial to conduct what it called “equitable

allocation.” To be sure, the district court mentioned equitable

Nos. 20-1711 & 20-1793 27

factors that it considered, including listing the Gore factors,

but the court went into no detail as to how or why it consid-

ered certain factors or discounted others. Instead, the district

court seemed to rely solely on Dr. Love’s expert testimony on

how the harm could be apportioned based on the four distinct

sources of contaminants. Without an explanation from the

district court, we cannot conduct our own evaluation of its ex-

ercise of discretion.

In many ways, we find ourselves stuck. We cannot discern

how the district court determined how much to award each

party and on what basis. Even more, though, our review of

the district court’s posttrial opinion leaves us of the firm con-

viction that the court merged and conflated its consideration

of apportionment and allocation. We do not know what por-

tions of the liability awards reflect apportionment and what

aspects reflect allocation. The Supreme Court cautioned

against this error in Atlantic Research, emphasizing that treat-

ing “contribution as if it were synonymous with apportion-

ment of expenses among PRPs” too “confuses the complimen-

tary yet distinct nature of the rights established in §§ 107(a)

and 113(f).” 551 U.S. at 138 (internal citation and quotation

omitted). The Court sounded similar caution in Burlington

Northern, emphasizing that “[e]quitable considerations play

no role in the apportionment analysis; rather, apportionment

is proper only when the evidence supports the divisibility of

the damages jointly caused by the PRPs.” 556 U.S. at 615 n.9.

We see no path forward other than to vacate the judgment

and allow the district court to revisit the entirety of its liability

analysis. On remand and with the legal framework now clar-

ified, the district court must first revisit the apportionment

question it previously resolved at summary judgment on Von

28 Nos. 20-1711 & 20-1793

Duprin’s § 107(a) cost-recovery claim. Our review of the sum-

mary judgment record, as we have explained, leaves us per-

suaded that resolving the apportionment inquiry at the very

least requires consideration of the evidence presented at trial

and perhaps even additional evidence. The district court has

the discretion to fashion the remand proceedings in ways that

position the evidentiary record to allow for the findings nec-

essary to resolve the apportionment question. The court will

have the same flexibility in revisiting the allocation of liability

when it resolves Major and Moran’s counterclaims under

§ 113(f).

IV

Beyond the assignment of liability, the parties raise a host

of other issues on appeal. Though none is outcome determi-

native, we address them to provide as much clarity as possi-

ble for the proceedings on remand. On these remaining is-

sues, we see no errors and indeed affirm each of the district

court’s challenged rulings.

A. Major’s Bona Fide Prospective Purchaser Defense

To encourage investment in and restoration of contami-

nated lands, Congress provided a complete defense to liabil-

ity for parties who would otherwise face liability solely by vir-

tue of acquiring and thus owning or operating on contami-

nated land. CERCLA calls this the bona fide prospective pur-

chaser or BFPP defense. See 42 U.S.C. §§ 9601(40),

9607(q)(1)(C). The district court determined that Major quali-

fied for the BFPP defense for two properties (the Moran Prop-

erty and the Zimmer Packaging Facility) but not for two oth-

ers (the Ertel Property and the Zimmer Paper Facility). Major

appeals the district court’s ruling on the latter two properties.

Nos. 20-1711 & 20-1793 29

To qualify for the BFPP defense, PRPs must meet certain

requirements, including that—in connection with acquiring

the property in question—they make “all appropriate inquir-

ies into the previous ownership and uses of the facility in ac-

cordance with generally accepted good commercial and cus-

tomary standards and practices.” 42 U.S.C. § 9601(40).

Zimmer Paper Facility. The district court was right to con-

clude that Major was not entitled to the BFPP defense for the

Zimmer Paper Facility. To be sure, Major did complete a

Phase 1 Environmental Assessment according to the provi-

sions of ASTM International Standard E1527-05, and, comply-

ing with that standard, did at the time satisfy parts of the “all

appropriate inquiries” requirements set forth in portions of

CERCLA’s implementing regulations. See 40 C.F.R. §§ 312.23-

312.31. But CERCLA’s regulations—in particular 40 C.F.R.

§§ 312.21 and 312.22—required more, and that more is where

Major fell short. Those provisions include requiring certain

attestations about the professional qualifications of the envi-

ronmental professionals conducting the inquiry for the pro-

spective purchase. See 40 C.F.R. § 312.21(d). These required

attestations appear nowhere in Major’s Phase 1 Environmen-

tal Assessment, however. Try as Major does to point to non-

binding agency guidance, it cannot show full compliance with

all requirements in the “all appropriate inquiries” regulation.

Ertel Property. The district court was equally right to con-

clude that Major did not qualify for the BFPP defense for the

Ertel Property. Here, too, Major failed to make all appropriate

inquiries, though its missteps related more to timing than

substance. Major leased the Ertel Property from the City of

Indianapolis in November 2007, purchasing it outright sev-

eral years later in 2013. Major completed all appropriate

30 Nos. 20-1711 & 20-1793

inquiries only at the time it acquired title to the property in

2013. We agree with the district court’s conclusion that the

BFPP defense, by its terms, applies to “owner[s] and opera-

tor[s],” and Major became an operator in November 2007,

when it commenced its 99-year lease. See 42 U.S.C.

§ 9607(a)(1). Major therefore had to complete the required in-

quiries by performing or updating an environmental assess-

ment within 180 days of becoming an owner or operator. The

company failed to do so, for the only environmental assess-

ment that could satisfy the BFPP’s substantive requirements

comes from September 6, 2006—a date not within 180 days of

the commencement of the lease in November 2007.

Moran Property. Von Duprin, in its combined reply and

cross-appeal brief, adds that the district court erred at sum-

mary judgment when it allowed Major to assert the BFPP de-

fense for the Moran Property. That position lacks merit. The

evidence presented at trial established that Major completed

the necessary inquiries in a complete and timely fashion in

connection with acquiring the Moran Property.

B. Von Duprin’s Compliance with the National

Contingency Plan

We turn now to Major’s challenges to the district court’s

determinations that certain costs incurred by Von Duprin

were recoverable under § 107(a) of CERCLA.

The parties disagree about the applicable standard of re-

view. Major invites us to review the district court’s determi-

nation of NCP compliance de novo while Von Duprin urges

application of the clear error standard. Our decision in Nu-

traSweet suggests (without expressly stating) that our review

is only for clear error. See 227 F.3d 776, 791 (7th Cir. 2000)

Nos. 20-1711 & 20-1793 31

(explaining that “the district court did not clearly err in con-

cluding that NutraSweet had satisfied the NCP”). But we do

not need to resolve the question because the district’s conclu-

sions satisfy either standard. We see no errors in the district

court’s findings that Von Duprin incurred most of the chal-

lenged costs in substantial compliance with the NCP. We

therefore reject Major’s cross-appeal on this point.

Congress permitted the recovery of necessary response

costs incurred “consistent with” the National Contingency

Plan or NCP, a federal regulation that establishes standards

and obligations for remediation and cleanup efforts. 42 U.S.C.

§ 9607(a)(4)(B); see also NutraSweet, 227 F.3d at 791. “A private

party response action will be considered ‘consistent with the

NCP’ if the action, when evaluated as a whole, is in substan-

tial compliance with the applicable requirements … and re-

sults in a CERCLA-quality cleanup.” 40 C.F.R.

§ 300.700(c)(3)(i). The requirements are numerous and task

specific. See, e.g., id. § 300.700(c)(5)–(6). The ultimate and con-

trolling inquiry is whether the expenses in question were in-

curred in “substantial compliance” with the NCP. Id.

§ 300.700(c)(3)(i). Perfect compliance is not the measuring

stick.

When considering whether the costs Von Duprin sought

to recover were incurred consistent with the NCP, the district

court evaluated the relevant provisions of the regulations for

the specific types of costs Von Duprin sought to recover. It

concluded that Von Duprin’s remedial efforts, on the whole,

reflected substantial compliance with the NCP. This finding,

in turn, resulted in the district court determining that Von

Duprin incurred the following costs consistent with the NCP:

$750,000 for preliminary investigation and site assessment,

32 Nos. 20-1711 & 20-1793

$120,000 for remediation of the public park, $465,000 for resi-

dential vapor intrusion remediation, and $365,000 for bench

and pilot testing. The only contrary finding came with respect

to the $1.5 million settlement Von Duprin paid to Threaded

Rod and about $39,000 in IDEM oversight costs. The district

court found those costs were not incurred consistent with the

NCP.

Major contends that the district court erred in concluding

that Von Duprin’s $750,000 in investigation and site assess-

ment costs were recoverable. As best we can tell, Major seems

to take issue with the district court’s finding that these costs

relate to site assessment and other investigative work under-

taken by Von Duprin. But the position is difficult to follow

and not advanced with the clarity and evidentiary support to

convince us to reverse. Going further, though, we see no legal

infirmity in the district court’s observation that § 107(a) per-

mits a company to recover due diligence costs incurred in

connection with the investigation of a contaminated site. It

stands to reason, the district court sensibly explained, that

such initial inquiries are necessary to enable subsequent

measures to ensure a CERCLA-quality cleanup, as CERCLA

and the NCP both contemplate. See CNH Am., LLC v. Cham-

pion Envt’l Servs., 863 F. Supp. 2d 793, 809 (E.D. Wis. 2012) (col-

lecting district court cases within our Circuit likewise finding

that these preliminary investigative costs are recoverable un-

der CERCLA).

Nor are we convinced by Major’s insistence that the chal-

lenged costs are not recoverable because they are not ex-

pressly recognized in the NCP. It would be one thing if Von

Duprin incurred costs proscribed by the NCP, as such costs

would not be recoverable under the plain terms of § 107(a).

Nos. 20-1711 & 20-1793 33

But we see nothing inconsistent—lacking substantial compli-

ance—with the NCP to permit Von Duprin to recover due dil-

igence site-assessment costs. It seems difficult to call such

costs inconsistent with the NCP, to say nothing of CERCLA’s

broader objectives.

On this record, and especially against Major’s undevel-

oped argument on appeal, we cannot conclude that the pre-

liminary assessment and investigative costs—those not ex-

pressly addressed by the NCP—were not incurred consistent

with the NCP. We therefore see no error in the district court’s

finding that the $750,000 Von Duprin spent on preliminary

investigative measures and site-assessment was recoverable

under § 107(a).

Major also challenges Von Duprin’s recovery of certain

other costs. These costs included the remediation of the public

park, residential vapor intrusion remediation, and various

tests. The district court took considerable care reviewing the

testimony offered by Major and Von Duprin on these costs

against the backdrop of the pertinent NCP regulations. While

noting that Von Duprin’s compliance was not perfect, the dis-

trict court concluded these challenged costs were incurred in

substantial compliance with the NCP.

We agree. Von Duprin substantially complied with the rel-

evant components of the NCP dealing with documentation,

health and safety protocols, site investigation, and public in-

put for that set of challenged costs. And throughout the effort,

the company worked with IDEM. See NutraSweet, 227 F.3d at

791 (citing with favor the cooperation with regulatory agen-

cies in discussing compliance with the NCP). To be sure, the

district court correctly observed that Von Duprin failed to

comply to the letter with certain NCP prescriptions. But to

34 Nos. 20-1711 & 20-1793

reverse the district court on this front would require a level of

perfection at odds with Congress’s more limited requirement

that recoverable costs only be incurred in “substantial com-

pliance” with the NCP.

C. District Court’s Admission of Dr. Adam Love’s

Expert Testimony

We come in closing to Von Duprin’s challenge to the dis-

trict court’s denial of its motion to exclude the testimony of

Dr. Adam Love, Moran’s expert who offered opinions perti-

nent to the apportionment of liability under § 107(a) of

CERCLA.

“We review de novo whether a district court properly fol-

lowed the framework for determining the admissibility of ex-

pert testimony.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426,

430–31 (7th Cir. 2013); see also Fed. R. Evid. 702; Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). If it did, “we re-

view its decision to admit or exclude expert testimony only

for an abuse of discretion.” Schultz, 721 F.3d at 431.

In Daubert, the Supreme Court explained that Federal Rule

of Evidence 702 imposes a gatekeeping responsibility on dis-

trict courts to ensure that any proposed expert testimony “is

not only relevant, but reliable.” 509 U.S. at 589. We afford dis-

trict courts substantial latitude in making the findings neces-

sary to fulfill this gatekeeping role. See Jenkins v. Bartlett, 487

F.3d 482, 489 (7th Cir. 2007). Latitude is not a blank check,

however, and the court must provide more than just conclu-

sory statements of admissibility to show that it adequately

performed its gatekeeping function. See Naeem v. McKesson

Drug Co., 444 F.3d 593, 608 (7th Cir. 2006).

Nos. 20-1711 & 20-1793 35

We start with two points of agreement among all parties.

First, Dr. Love offered a relevant opinion. Indeed, he opined

on whether and the extent to which each property contributed

to the commingled plume—the question at the epicenter of

whether liability could be apportioned. To our mind, it would

be difficult to identify a question more relevant to the entire

litigation. Second, nobody questions Dr. Love’s qualifications,

as he plainly has the training and experience necessary to of-

fer an opinion pertinent to whether responsibility for the con-

tamination can be divided among the PRPs.

What the parties tangled over was whether Dr. Love

reached his opinions by applying a methodology that inhered

with sufficient reliability to satisfy the requirements of Rule

702. He came to his opinions by relying on soil and ground-

water data collected during site investigations that occurred

primarily from 2005 to 2017. Using this data, he analyzed soil

samples at each property and then compared that to the

chemical makeup of the groundwater plume. Dr. Love

claimed that the distinct chemical compounds in the contam-

inated soil he tested at each site provided a way to apportion

each property’s contributions to the total environmental harm

that is the commingled groundwater plume. At no point did

Dr. Love opine on which party was responsible for what

amount of the harm. Instead, he offered a view on the propor-

tion of the total contamination that was attributable to each

property.

Von Duprin insists that the district court should have ex-

cluded Dr. Love’s opinions because his underlying analysis

failed to account for a range of confounding variables that

prevented him from making reliable findings. While Von

Duprin advances some sound observations about the

36 Nos. 20-1711 & 20-1793

limitations of Dr. Love’s ultimate opinions, we cannot say the

district court abused its discretion in admitting the opinions

in the first instance. Right to it, Von Duprin’s challenge goes

more to the weight (or lack thereof) the district court should

have afforded Dr. Love’s ultimate opinions. See Burton v. E.I.

du Pont de Nemours and Co., Inc., 994 F.3d 791, 826 (7th Cir.

2021) (“Although Rule 702 places the judge in the role of gate-

keeper for expert testimony, the key to the gate is not the ul-

timate correctness of the expert’s conclusion but rather the

soundness and care with which the expert arrived at her opin-

ion.”) (cleaned up). Cross-examination, the presentation of

contrary evidence, and an instruction on the burden of proof

are the appropriate methods through which Von Duprin

could have attacked Dr. Love’s opinions. See Schultz, 721 F.3d

at 431.

Be careful not to confuse what we are saying here. To con-

clude, as we have, that the district court did not abuse its dis-

cretion in admitting and considering Dr. Love’s opinions is

not to say that those same opinions were sufficient as an evi-

dentiary matter to establish the divisibility of cost-recovery li-

ability under § 107(a) of CERCLA. Admissibility and eviden-

tiary sufficiency are not one and the same.

* * *

This is a difficult case involving many decades, many par-

ties, and many millions of dollars. We see no merit to much of

the challenges to the district court’s rulings. But we do agree

with Von Duprin that the district court’s summary judgment

determination on apportionment requires remand. And we

agree with Major that the district court’s ultimate allocation

of liability necessitates a remand as well. For these reasons,

we AFFIRM in part and VACATE and REMAND in part.