Appendix — Litton Systems, Inc. v. Carroll

_-_-”

-Qupreme Court, a

FILED

OFFICE OF THE CLERK

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1994

LITTON SYSTEMS, INC.

Petitioner,

v.

MARTHA CARROLL, et al.,

Respondents.

Petition for a Writ Certiorari to the

United States Court of Appeals

for the Fourth Circuit

APPENDIX IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Joe G. Hollingsworth

(Counsel of Record)

Donald W. Fowler

Bruce J. Berger

SPRIGGS & HOLLINGSWORTH

1350 I Street, N.W.

Ninth Floor

Washington, D.C. 20005

(202) 898-5800

Counsel for Petitioner

June 5, 1995

Balmar Legal Publishing Department, Washington, D.C. (202) 682-9800

ia

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals for

the Fourth Circuit, Affirming in part, Reversing in

part, and Remanding Decision of the District

Court with a Concurring and Dissenting opinion

(decided Februaty 154993) 4. iceiwie eat... . la

Order of the United States Court of Appeals for

the Fourth Circuit, Denying Petitions for Rehear-

ing and Suggestions for Rehearing In Banc (filed

che Bg | ERA Rea hae oP ne 20a

Order of the United States District Court for the

Western District of North Carolina, Granting Sum-

mary Judgment (filed July 15,1991)......... 22a

Judgment of the United States District Court for

the Western District of North Carolina (filed July

re ee ae Ca, ee re ee ee 28a

Order of the United States District Court for the

Western District of North Carolina, Denying Plain-

tiffs’ Motion to Alter or Amend the Order and

Judgment of July 15, 1995 (filed August 20, 1992) . 30a

Recommended Findings of Fact, Part I, by the

Magistrate Judge of the United States District

Court for the Western District of North Carolina

Ga cs we ah ea ee 48a

Conclusions of Law, Part II, by the Magistrate

Judge of the United States District Court for the

Western District of North Carolina; (filed October

SE aie ita? eed WET ae ota ee 118a

a

iia

Page

Memorandum and Recommendation, Part III, by

the Magistrate Judge of the United States District

Court for the Western District of North Carolina

ee Sarre 18la

Internal Operating Procedures 36.4-36.6 of the

United States Court of Appeals for the Fourth Cir-

GUE ZOD «6 octitecbne: 4d brn ee 239a

Rules 104(a),(b) and 702 of the Federal Rules of

Eves .. bs SN KL Bee ee 24la

Fifth Amendment to the United States Constitution . 24la

Rule 56(b),(c), and (e) of the Federal Rules of

CH PRONG os. ib ek ee 242a

al ee ee a

la

UNPUBLISHED

United States Court Of Appeals

FOR THE FOURTH CIRCUIT

No. 92-2219

MARTHA CARROLL; JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

Justin Gaddis and Derrick Gaddis, both minors;

RANDY GADDIS, individually and as next friend and

parent of Justin Gaddis and Derrick Gaddis, both minors;

FRED ALLEN CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

DEBBIE CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

BARBARA MESSER; ANCY SIMONDS, individually

and as next friend and parent of Jennifer Simonds, a minor;

JAMES GREEN; MARVIN GARRETT; KENNY GREEN;

PEGGY GREEN; SANDRA HANCOCK, individually and

as next friend and parent of Chuck Hancock, a minor;

JAMES R. MESSER, individually and as next

friend and parent of Jonathan Messer, a minor;

MELANIE MESSER, individually and as next friend and

parent of Jonathan Messer, a minor; ANN CARROLL,

Plaintiffs-Appellants,

and

LUCILLE LEATHERWOOD, individually and as

next friend and parent of Crystal Leatherwood, a minor;

EDNA CONLEY; JOE CONLEY; TERRY-CONLEY,

Plaintiffs,

2a

Vv.

LITTON SYSTEMS, INC., a Delaware Corporation

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM,

Defendant-Appellee,

and

LITTON INDUSTRIES, INC.,

through its Agent for Service of Process:

THE CORPORATION TRUST COMPANY,

Defendant.

PRODUCT LIABILITY ADVISORY COUNCIL, INCORPORATED,

Amicus Curiae.

Appeal from the United States District Court

for the Western District of North Carolina, at Bryson City.

Richard L. Voorhees, Chief District Judge.

(CA-88-253-B-C)

Argued: June 6, 1994

Decided: February 1, 1995

Before RUSSELL and WILLIAMS, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

Affirmed in part, reversed in part, and remanded by unpublished

_ per curiam opinion. Judge Williams wrote a concurring and

dissenting opinion.

COUNSEL

ARGUED: Donna Keene Holt, Knoxville, Tennessee, for Ap-

pellants. Donald W. Fowler, SPRIGGS & HOLLINGS-

WORTH, Washington, D.C., for Appellee. ON BRIEF: Sid-

ney W. Gilreath, Knoxville, Tennessee, for Appellants. Joe G.

3a

Hollingsworth, Bruce J. Berger, SPRIGGS & HOLLINGS-

WORTH, Washington, D.C.; James W. Williams, ROBERTS,

STEVENS & COGBURN, Asheville, North Carolina, for Ap-

pellee. Rosewell Paige, III, E. Duncan Getchell, Jr., Melissa K.

Force, MCGUIRE, WOODS, BATTLE & BOOTHE, Rich-

mond, Virginia, for Amicus Curiae.

Unpublished opinions are not binding precedent in this circuit.

See L.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Plaintiffs, persons who obtained their drinking water from

private wells allegedly contaminated by defendant Litton Sys-

tems, Inc. (Litton), appeal the district court’s grant of summary

judgment for Litton on all of their claims. We affirm in part and

reverse in part.

L

Litton used trichloroethane (TCE) as a degreasing solvent

at its plant in Murphy, North Carolina (the plant), from 1967

until about 1974. In 1986, Litton detected the presence of TCE

in the groundwater at the plant site.

Four residential wells are located near the plant. Three of

these wells, the Carroll well, the Green well, and the Messer

well, are located directly across a creek, called Slow Creek,

which runs next to the plant; the exact location of the fourth, the

Kilpatrick well, is difficult to determine from the record.! Upon

finding TCE in the groundwater at the plant site, Litton per-

formed repeated tests to check for the presence of TCE in these

wells. Some of the tests indicated that TCE was present in the

water of these wells: at the Carroll well, 72% of the test results

indicated the TCE was present, with the average concentration

of the TCE approximately 19.6 parts per billion (PPB); at the

. The parties refer to the wells by these names.

4a

Green well, 50% of the test results indicated the TCE was

present, with the average concentration of the TCE approxi-

mately 2.9 PPB; at the Messer well, 25% of the test results

indicated the TCE was present, with the average concentration

of the TCE approximately 2.0 PPB; at the Kilpatrick well, 38%

of the test results indicated the TCE was present, with the

average Concentration of the TCE approximately 1.8 PPB.

Litton reacted to these tests by temporarily supplying the

people who used these wells with bottled water, and then

installing filter systems in the wells that strained out the TCE.

Litton also entered into a consent order with the Environmental

Protection Agency (EPA) in which it agreed to perform certain

remedial actions.

In October, 1988, persons who had obtained their drinking

water from these wells brought an action against Litton in the

Western District of North Carolina.2 All asserted claims of

negligence, gross negligence, strict liability, nuisance, and tres-

pass, as well as claims under the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA), 42

U.S.C. §§ 9601-9675, and the Resource Conservation and Re-

covery Act (RCRA), 42 U.S.C. §§ 6901-6992k. Magistrate

Judge Toliver Davis was assigned to conduct the pre-trial stage

of the action.

The record demonstrates that Magistrate Judge Davis en-

countered significant problems with plaintiffs’ preparation of

their case. The magistrate judge’s original pre-trial order, filed

_ January 12, 1989, set an April 22, 1989, discovery deadline,

giving the parties 100 days to conduct discovery. Plaintiffs’

counsel, however, who performed almost no investigation of

plaintiffs’ claims before they filed the complaint, sought and

? There were initially twenty-nine plaintiffs. The claims of five were

dismissed early in the litigation and these dismissals are not appealed. Two

others did not appeal the district court’s grant of summary judgment for

Litton. The remaining twenty-two are appellants in this appeal.

Sa

were given four extensions of this discovery deadline. In all,

plaintiffs were given fifteen months to prepare their case. Dur-

ing this discovery period, plaintiffs moved to have their action

dismissed without prejudice so that they could bring it again at

a later date when they were better prepared; the district court,

on the magistrate judge’s recommendation, denied their motion.

Finally, in May, 1990, more than a year after the original

discovery deadline, plaintiffs completed their discovery.

Plaintiffs’ theory of the case is that in the late 1960’s and

early 1970's, the period when TCE was used in the plant, TCE

was transported in the groundwater from the plant to the four

residential wells. During the approximately fifteen years prior

to the discovery of the TCE in the wells in 1986, plaintiffs

consumed TCE in their drinking water and, as a result, devel-

oped a variety of health problems which were known to be

caused by TCE exposure.

To prove their case, plaintiffs intended to rely on several

experts. Gerald Moore, a hydrologist, indicated that, in his

opinion, the TCE in the four residential wells had been trans-

ported there from the plant by groundwater. Moore acknow-

ledged that under normal conditions, TCE would not be

transported in the groundwater to the residential wells on the

other side of Slow Creek because the flow of the groundwater

on both sides of the creek was toward the creek. He stated that

under certain conditions, however, when as a result of low

rainfall or heavy well usage, the water level in the wells was

below the bottom of the creek, it was theoretically possible that

the wells could have drawn groundwater containing TCE from

the other side of Slow Creek. Moore offered no evidence that

these conditions allowing for this movement of groundwater

beneath Slow Creek had ever occurred between the early 1970’s

and 1986. Despite this lack of evidence, however, he concluded,

without support, that TCE had been drawn under Slow Creek

6a

“within a few months to a year” after the Carroll well was dug

in 1969.3

Moore was asked by Litton to estimate the concentrations

of TCE that had been transported under Slow Creek by ground-

water into the residential wells between the early 1970’s and

1986. At one point, he speculated as to such concentrations, but

later deferred to Dr. Hugh Spencer, another of plaintiffs’ ex-

perts, to determine the concentrations over this period.

Spencer was an expert in the field of “chemodynamics,”

the study of the movement of chemicals in air, water, and soil.

To determine the concentration of Litton’s TCE in the residen-

tial wells prior to 1986, Spencer employed a concept called

environmental “half-life,” which posits that certain chemicals

“degrade” into other chemicals over time. A chemical’s half-

life is the time it takes for one-half of its mass to degrade.

Spencer proposed to determine the half-life of TCE, and then,

assuming that the TCE found in the wells in 1986 had been

degrading, to use this half-life to determine how much TCE had

been in the wells during the period prior to 1986.

Spencer estimated TCE’S half-life between 1.5 and 2

years. He used this half-life figure to calculate the concentra-

tions of TCE that must have been in the four wells from 1970

until 1986, given the small amounts of TCE found in the wells

in 1986. By this calculation, he determined that in the Carroll

well, the concentration of TCE in 1970 was between 1,728 and

27,591 micrograms per liter, a concentration too high for safe

drinking water. This concentration had reduced by half every

1.5 to 2 years after 1970, but, under Spencer’s calculations, the

> Moore further noted that his tests in 1989 revealed that the chemical

makeup in the groundwater on the two sides of Slow Creek was similar, which

in his opinion, indicated that groundwater had traveled under Slow Creek.

Because Litton concedes for the purposes of this appeal that its TCE traveled

from its plant to the residential wells at some point in or prior to 1986, see

infra, Moore’s chemical analysis of the groundwater adds little to our inquiry.

ed Gi Birt dd

7a

plaintiffs had undergone long-term exposure to high concentra-

tions of TCE in their drinking water between 1970 and 1986.

Next, the plaintiffs offered the testimony of three physi-

cians, Drs. Feldman, Broughton, and Rodgers. These physi-

cians cited studies indicating that TCE was known to cause the

following health problems: nervous system disorders including

numbness and tingling, memory deficits, dizziness, fatigue,

weakness, depression, headaches, heart palpitations, impaired

vision, headaches, skin rashes, respiratory disorders, intestinal

disorders, and immune system disorders. They indicated that

twenty-one of the twenty-two plaintiffs involved in this appeal

had experienced some combination of these problems.*

In addition, Dr. Rodgers estimated each of the plaintiffs’

exposures to TCE through the well water based on Spencer’s

calculations of the amount of Litton’s TCE in the residential

wells since 1970. All of the physicians opined that if Rodgers’

exposure estimates were correct, plaintiffs’ health problems

were caused by Litton’s TCE. They noted, however, that “{i]f

Dr. Spencer’s calculations were dismissed entirely,” they

“would . . . require another review of the information on each

plaintiff to ascertain the length of time that the particular plaintiff

was exposed to the well water.”

When plaintiffs’ discovery was complete, Litton moved for

summary judgment on all plaintiffs’ claims. Litton conceded,

for the purposes of its motion, that the TCE found in the

residential wells in 1986 originated in its plant, but argued that

plaintiffs’ evidence was insufficient to prevail on any of their

claims.

Magistrate Judge Davis agreed and recommended granting

Litton’s summary judgment motion. First, he addressed plain-

4 The one exception was Jonathan Messer, an eight-year-old plaintiff

who has had less exposure to the water in the residential wells than any of

the other plaintiffs. None of the physicians identified any health problems

with Messer that were consistent with TCE exposure.

8a

tiffs’ negligence, gross negligence, and strict liability claims.

For all of these claims, he reasoned, plaintiffs had to show that

TCE from Litton’s plant had caused them health problems. He

found Moore’s opinion that Litton’s TCE entered the residential

wells in 1970, and Spencer’s calculations on the amount of

Litton’s TCE in plaintiffs’ wells since 1970, inadmissible under

Fed. R. Evid. 702. Without these, he indicated, plaintiffs could

not show that Litton’s TCE had harmed them. Accordingly, he

advised that plaintiffs’ negligence, gross negligence, and strict

liability claims must fail. He also recommended that plaintiffs’

nuisance, trespass, CERCLA, and RCRA claims be rejected.

The district court accepted the magistrate judge’s recom-

mendations and reasoning on all plaintiffs’ claims and granted

summary judgment for Litton on all of them.

Il.

We first address the district court’s grant of summary

judgment for Litton plaintiffs’ claims for negligence, gross

negligence, and strict liability (the personal injury claims). To

succeed on any of these claims, plaintiffs have to show that their

medical problems were caused by Litton’s TCE, which they

ingested by drinking water from the residential wells. Jeffer-

son-Pilot Life Ins. Co. v. Spencer, 442 S.E.2d 316, 319 (N.C.

1994); Falls Sales Co. v. Board of Transp., 233 S.E.2d 569,

572-73 (N.C. 1977). To survive summary judgment on any of

these claims, plaintiffs had to submit admissible evidence from

which a reasonable jury could find, viewing this evidence in the

light most favorable to them, that Litton’s TCE caused their

medical problems. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

Plaintiffs offered the following evidence to show that

Litton’s TCE had caused their medical problems: (1) Litton’s

concession that it used TCE at its plant from 1967 until about

1974; (2) Litton’s concession, for the purposes of its summary

aia i ick indecent

9a

judgment motion, that the TCE found in the residential wells in

1986 originated at its plant; (3) Mr. Moore’s testimony that

Litton’s TCE crossed Slow Creek and entered plaintiffs’ wells

around 1970; (4) Dr. Spencer’s testimony calculating the

amount of Litton’s TCE in the residential wells since 1970; (5)

the testimony of Drs. Feldman, Broughton, and Rodgers that

TCE was known to cause the types of medical problems expe-

rienced by twenty-one of the twenty-two plaintiffs in this appeal;

and (6) the opinions of Drs. Feldman, Broughton, and Rodgers

that Litton’s TCE caused plaintiffs’ medical problems if plain-

tiffs were exposed to TCE in the amount and over the period

estimated by Dr. Spencer.

Preliminarily, we must consider the admissibility of this

evidence. The district court concluded that Moore’s testimony

that Litton’s TCE entered the residential wells around 1970 and

Spencer’s testimony on the amount of TCE in plaintiffs’ wells

since 1970 would be inadmissible at trial under Fed. R. Evid.

702. Rule 702 states that an expert may only testify about

“scientific, technical, or other specialized knowledge” that “will

assist the trier of fact to understand the evidence or to determine

a fact in issue.” Fed. R. Evid. 702. The Supreme Court recently

indicated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113

S. Ct. 2786 (1993), that to qualify as scientific knowledge which

assists the trier of fact, scientific evidence must be “reliable.”

Id. at 2795. To make the requisite reliability determination, trial

courts are to take into account whether the evidence has been

published and subjected to peer review, whether it has been

tested and verified, whether its rate of error is high, and whether

it has been generally accepted in the scientific community. Jd.

at 2796-97. See also, United States v. Bynum, 3 F.3d 769, 773

(4th Cir. 1993). We review a district court’s decision on the

admissibility of scientific evidence under Rule 702 for abuse of

discretion. Id.

10a

Moore indicated that Litton’s TCE had crossed Slow Creek

and entered into the residential wells around 1970, or “within a

few months to a year” after the Carroll well was dug in 1969.

Moore failed, however, to offer any support for this conclusion.

In fact, he conceded that TCE could only pass under Slow Creek

into the residential wells when, as a result of little rainfall or

heavy well usage, the water level in the wells fell below the

depth of Slow Creek, and he acknowledged that he had no

evidence of such a low water level in the wells around 1970. As

a result, we conclude that the district court did not abuse its

discretion in concluding that Moore’s expert opinion that Lit-

ton’s TCE entered the residential wells around 1970 was unre-

liable and, therefore, ruling it inadmissible.

With regard to Spencer’s testimony, plaintiffs point to

absolutely no scientific support for using the concept of envi-

ronmental half-life, as Spencer did, to determine how much TCE

must have been present fifteen years before the discovery of

TCE in the residential wells at issue in this case. In fact, the lead

author of the paper on which Spencer relied heavily in calculat-

ing the half-life of the TCE in the residential wells, Dr. Paul

Roberts, submitted an affidavit stating that Spencer’s “approach

[was] imprudent and prone to enormous error.” And even

Spencer concedes that the rate of error of his method could not

be reduced below 1,400 percent. Moreover, Spencer’s method

of determining the amount of TCE in the residential wells in

years past failed its only test. Spencer admits that over a

two-year period after 1986 the concentration of TCE in one of

the residential wells showed no change. To sustain Spencer’s

theory that TCE’S half-life was 1.5 to 2 years, the level of TCE

should have declined by half or more; Spencer makes no effort

to explain why his theory failed in this test. For all of these

reasons, we conclude that the district court did not abuse its

discretion in finding Spencer’s expert testimony unreliable and,

therefore, inadmissible under Rule 702.

lla

The exclusion of Spencer’s testimony also affects the

opinions of Drs. Broughton, Feldman, and Rodgers. In forming

their opinions that plaintiffs’ medical problems were caused by

Litton’s TCE, each of these physicians relied on Dr. Rodgers’

estimates of “the range of exposures to which each individual

plaintiff was subjected,” and Dr. Rodgers estimates, in turn,

were based on Spencer’s calculations using his half-life theory.

These physicians noted in their joint affidavit that “[i]f Dr.

Spencer’s calculations were dismissed entirely,” they “would

. . . Fequire another review of the information on each plaintiff

to ascertain the length of time that the particular plaintiff was

exposed to the well water.” As Spencer’s calculations were

properly ruled inadmissible by the district court, plaintiffs can-

not rely on these physicians’ opinions that Litton’s TCE caused

their medial problems.*

Plaintiffs, therefore, are left with three pieces of evidence

--that Litton used TCE at its plant from 1967 until about 1974,

that the TCE found in the residential wells in 1986 originated at

its plant, and that the types of health problems experienced by

twenty-one of the twenty-two plaintiffs were known to be

caused by TCE®--to show that their health problems had been

caused by Litton’s TCE, which they ingested by drinking water

from the residential wells. We determine that for these twenty-

one plaintiffs, a reasonable jury could find, on the basis of this

evidence, that their health problems were caused by Litton’s

TCE. It could reasonably be inferred from the fact that Litton

> The district court ruled inadmissible the physicians’ opinions that

plaintiffs’ health problems were caused by Litton’s TCE. We need not

address the merits of this ruling because, as these opinions were based on

Spencer’s inadmissible calculations, plaintiffs may not rely on them.

© While the district court ruled inadmissible the physicians’ opinions

that plaintiff's health problems were caused by TCE, it properly could not

find inadmissible the physicians’ statements that plaintiffs experienced the

health problems detailed earlier and that these types of health problems were

known to be caused by TCE.

12a

used TCE in its plant only in the late 1960’s and early 1970’s

that the TCE discovered in the residential wells in 1986 entered

these wells many years earlier, giving these plaintiffs, all of

whom drank from these wells, long-term exposure to Litton’s

TCE. See Anderson, 477 U.S. at 249 (stating that the court

determining summary judgment motion must examine what jury

could have inferred from the evidence). And it could be further

reasonably inferred from the fact that TCE was a known cause

of the types of health problems experienced by these plaintiffs

that this long-term exposure to Litton’s TCE had caused their

health problems. As a result, we conclude that the district court

erred in granting summary judgment on these plaintiffs’ per-

sonal injury claims.”

We note that our conclusion that summary judgment was

inappropriate on these plaintiffs’ personal injury claims is prem-

ised largely on Litton’s concession, apparently made only for

the purposes of this summary judgment motion, that the TCE

found in the residential wells in 1986 originated at its plant. If

Litton is able to retract this concession at some later point in the

litigation, summary judgment on these claims may be proper.

iil.

We next turn to the plaintiffs’ claims of nuisance and

trespass. To recover for nuisance, a plaintiff must show that the

defendant unreasonably interfered with his use and enjoyment

of his property and that defendant’s conduct caused him “‘sub-

stantial injury.” Twitty v. State, 354 S.E.2d 296, 302 (N.C. Ct.

App.), rev. denied, 358 S.E.2d 69 (N.C. 1987). Similarly, to

recover compensatory damages for trespass, a plaintiff must

demonstrate that defendant made an unauthorized entry on his

land and that this entry caused him “actual damage.” Matthews

7 The district court correctly ordered summary judgement for Litton on

the personal injury claims of the one plaintiff, Jonathan Messer, who showed

no health problems consistent with TCE exposure; we therefore affirm its

summary judgment order as it applies to Messer.

13a

v. Forrest, 69 $.E.2d 553, 555 (N.C. 1952). The district court

granted summary judgment for Litton on plaintiffs’ claims on

the ground that the entry of Litton’s TCE into the residential

wells constituted only a de minimis encroachment and, there-

fore, did not cause a substantial injury or actual damage.

Preliminarily, as the district court recognized, a number of

plaintiffs have no ownership or possessory interest in the resi-

dential wells. The nuisance and trespass claims of these plain-

tiffs were properly dismissed. See State ex. rel v. Simpson, 385

S.E.2d 329, 332 (N.C. 1989) (holding that plaintiff must have

ownership or possessory interest to maintain trespass action).®

The nuisance and trespass claims of those plaintiffs with an

ownership or possessory interest in the residential wells require

further analysis.

With regard to the claims of those who hold such an interest

in the Carroll well, the 1986 tests revealed an average concen-

tration of 19.6 PPB in the Carroll well, and Litton has conceded,

for present purposes, that this TCE originated at its plant. The

Environmental Protection Agency (EPA) has determined that

the maximum concentration of TCE allowed in the public

drinking water supply (also called the maximum contaminant

level, or “MCL”) is 5 PPB; the concentration of Litton’s TCE

in the Carroll well is, thus, nearly four times the maximum

allowed in the public drinking supply. We believe that on this

evidence alone, a reasonable jury could conclude that Litton’s

TCE had caused those plaintiffs who have an ownership or

possessory interest in the Carroll well substantial injury or actual

damage. We therefore reverse the district court’s grant of

summary judgment on these plaintiffs’ nuisance and trespass

claims.

. It is not clear to us from the record which plaintiffs lack an ownership

or possessory interest in the wells. On remand, the district court should

determine which plaintiffs lack such an interest, and dismiss their nuisance

and trespass claims.

Fe

l4a

The claims of those plaintiffs who hold ownership or

possessory interests in the other three wells pose a more difficult

problem, for the 1986 tests on these wells revealed average

concentrations of 2.9 PPB, 2.0 PPB, and 1.8 PPB, well below

the EPA’s MCL for TCE. A reasonable jury could infer from

the fact that Litton last used the TCE in 1974, and the fact that

plaintiffs who consumed water from these wells show health

problems consistent with TCE exposure, however, that the

concentration of Litton’s TCE in these wells was at some point

before 1986 considerably higher than the concentrations meas-

ured in 1986 and, therefore, that Litton’s TCE did cause sub-

stantial injury and actual damage to those plaintiffs who had an

ownership or possessory interest in these wells. As a result, we

reverse the district court’s grant of summary judgment on these

plaintiffs’ nuisance and trespass claims as well.

IV.

Finally, we consider the plaintiffs’ CERCLA and RCRA

claims. Plaintiffs claimed under section 107 of CERCLA, 42

U.S.C. § 9607, that Litton was liable for certain of their costs,

including medical costs, the costs of obtaining alternate water,

and attorney’s fees. To recover these costs under section 107,

however, plaintiffs must demonstrate that they were “incurred

. . . Consistent with the national contingency plan.” 42 U.S.C.

§ 9607(a)(4)(B); White v. County of Newberry, 985 F.2d 168,

174 (4th Cir. 1993). Plaintiffs did not even attempt to show that

the costs they seek to recover under section 107 were incurred

consistent with the national contingency plan in effect when they

brought their action.

With respect to plaintiffs’ RCRA claims, these claims had

to be brought against a “person [including a company] . . . who

is alleged to be in violation of any . . . requirement [of RCRA].”

42 U.S.C. § 6972(a)(1)(A) (emphasis added). The language “to

be in violation” requires that the defendant be in violation of an

RCRA requirement when the plaintiff’s action is filed. See

15a

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,

Inc., 484 U.S. 49, 57 (1987) (interpreting identical language in

the Clean Water Act in the same way). Plaintiffs made no

showing that any of Litton’s alleged violations of RCRA re-

quirements were continuing at the time they filed their action.?

, 2

For the reasons stated, we reverse the district court’s grant

of summary judgment on the personal injury claims of all

plaintiffs except Jonathan Messer and on the nuisance and

trespass claims of those plaintiffs with ownership or possessory

interests in the residential wells. We affrm the district court’s

grant of summary judgment on the remainder of plaintiffs’

claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WILLIAMS, Circuit Judge, concurring in part and dissenting in

part:

As to the disposition of this case, I find myself in substantial

agreement with much of the panel’s well reasoned opinion. I

write separately because language in parts II and II of the

majority opinion implies that a lay person can infer causation

when the evidence is insufficient to support a similar opinion by

expert witnesses. Because I do not believe that a reasonable jury

could find for plaintiffs without expert testimony, I would affirm

9 Plaintiffs also argue that the district court abused its discretion in

denying their motion to dismiss their claims without prejudice under Fed. R

Civ. P. 41(a). We reject this argument. Plaintiffs asked to have their action

dismissed without prejudice largely because they had filed it without ade-

quate preparation and wanted to file it anew after the necessary preparation

was complete. This is not a proper ground for voluntary dismissal without

prejudice. Moreover, Litton would have been prejudiced by such a voluntary

dismissal because, at the time the motion was filed, Litton had already

incurred significant expense in preparing to defend against plaintiffs’ claims,

and much of this expense would have been wasted if plaintiffs were allowed

to dismiss their action and refile it in the future.

l6a

the district court’s grant of summary judgment on the personal

injury issues in part I]. Furthermore, although I agree with the

decision to remand as to the nuisance and trespass claims on all

four wells, I do so not because I believe the plaintiffs are entitled

to personal injury damages, but because I believe that, at least

for summary judgment purposes, plaintiffs have created a triable

issue with respect to property damages.

I begin with the proposition that the following three con-

clusions of the majority are correct. First, I agree that Moore

and Spencer’s expert testimony is inadmissible under F.R.E.

702. Therefore, I must also conclude that plaintiffs cannot rely

on Drs. Feldman, Rodgers, and Broughton because the doctors

relied on Moore and Spencer’s inadmissible calculations to

develop their expert opinions stating that the TCE caused the

plaintiffs’ medical problems. Finally, I agree with the panel that

the district court properly admitted the doctors’ expert testimony

that plaintiffs’ ailments were of the kind that may be caused by

TCE exposure.

In my opinion, the three pieces of evidence remaining—that

Litton used TCE in its plant between 1967 and 1974, Litton’s

stipulation that the TCE found in plaintiffs’ wells in 1986

originated at Litton’s plant, and that the types of health problems

experienced by plaintiffs were known to be caused by TCE--are

simply not sufficient to support a reasonable inference that

Litton’s TCE caused plaintiffs’ health problems. There must be

some evidence that the plaintiffs’ wells contained TCE for along

enough time, and at a sufficiently high concentration, to cause

their health problems.! “In a long line of decisions in this circuit,

we have emphasized that proof of causation must be such as to

suggest ‘probability’ rather than mere ‘possibility,’ precisely to

guard against raw speculation by the fact-finder.” Sakaria v.

Trans World Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993), cert.

| Plaintiffs’ experts conceded that there would be no measurable adverse

health risks if the levels of TCE exposure were sufficiently low. (J.A. 1280.)

17a

denied, 114 S. Ct. 1835 (1994). See also Yeater v. Allied Chem.

Co., 755 F. Supp. 1330, 1337-38 (N.D. W.Va. 1991) (intensity

of exposure and concentration of hazardous substance necessary

to show probability of injury in workers’ compensation suit).

Absent evidence of the length of exposure and the concen-

tration of TCE, the similarity of plaintiffs’ complaints to those

caused by TCE contamination is not, I believe, sufficient to

allow a reasonable inference that plaintiffs’ brief exposure to

Litton’s TCE caused their longstanding medical problems. The

admissible medical expert testimony “merely relates a hypo-

thetical or inferential causal relation between” plaintiffs’ expo-

sure to TCE and their injuries, and thus “is not probative and

cannot provide the basis for a reasonable finding of fact.” Porter

v. Whitehall Lab., Inc., 791 F. Supp. 1335, 1345 (S.D. Ind.

1992), aff'd, 9 F.3d 607 (7th Cir. 1993); see Lust v. Clark

Equipment Co., 792 F.2d 436, 437 (4th Cir. 1986) (jury may

only draw reasonably probable inferences from evidence).

Because Dr. Spencer’s chemodynamic back calculations to

determine the concentration of TCE in the contaminated water

over the years and Moore’s expert opinion that the TCE entered

the wells in 1970 were inadmissible, I do not see how a jury

could infer from the admitted evidence that the contamination

of the wells occurred prior to 1986. Nor could a jury build on

that questionable inference a conclusion that the TCE contami-

nation was at a level of concentration sufficient to cause plain-

tiffs’ medical problems. No admissible expert evidence

indicated the length of plaintiffs’ exposure or concentration of

TCE before 1986. The majority’s inference--from the fact that

plaintiffs exhibited symptoms of a type consistent with TCE

exposure--that Litton’s TCE was present in wells at a higher

concentration than that measured in 1986 and that Litton’s TCE

therefore caused substantial injury and actual damage to certain

plaintiffs, is precisely the type of “raw speculation by the

18a

fact-finder” that expert testimony concerning proof of causation

is intended to guard against.

That mere exposure to TCE may potentially cause harm

similar to that suffered by plaintiffs does not suffice to create a

triable issue. Although “a temporal congruity may be some

evidence of causation, it is insufficient evidence to move the

merely possible to the reasonably probable.” Porter v. White-

hall Lab., Inc., 791 F. Supp. at 1342; see also Sakaria, 8 F.3d

at 172 (temporal nexus between event and injury without medi-

cal causation testimony is insufficient to suggest probability of

causation). Given the absence of reliable scientific evidence, a

jury cannot be permitted to make unsupported inferences to

reach a conclusion outside the realm of a lay person’s knowl-

edge. See Sakaria, 8 F.3d at 173 (refusing to allow causation

issue to go to the jury when plaintiff's only expert testimony was

inadmissible); Wilson v. McLeod Oil Co., 398 S.E.2d 586,

602-03 (N.C. 1990), reh’g denied, 402 S.E.2d 844 (1991)

(improper to allow jury to answer question that expert cannot

answer). I therefore dissent from that portion of the majority

opinion allowing the personal injury claims to proceed to trial.

As to the nuisance and trespass claims of plaintiffs with a

possessory interest in wells, I concur in the majority’s decision

to remand those claims to the district court. While I do not think

that plaintiffs can seek damages for personal injuries for the

reasons discussed above, the record contains sufficient evidence

to withstand summary judgment of plaintiffs’ claims for other

damages. In my opinion, plaintiffs adduced sufficient evidence

to create a triable issue of fact as to the nuisance and trespass

claims. Litton has stipulated for the purposes of summary

judgment that the TCE in plaintiffs’ wells came from its factory.

Plaintiffs presented evidence showing that the sheer presence of

TCE severely reduced the market value of any property upon

which it was found. This evidence of devalued or unmarketable

property and loss of rental value is sufficient to support the state

19a

law nuisance and trespass claims.2 Maintenance Equip. Co. v.

Godley Builders, 420 S.E.2d 199, 202, 204 (N.C. App. 1992)

(holding that a large depreciation in property value due to a

trespass was sufficient to satisfy the damages requirement of the

tort), review denied, 426 S.E.2d 707 (N.C. 1993); Hanna v.

Brady, 327 S.E.2d 22, 25 (N.C. App. 1985), review denied, 332

S.E.2d 179 (N.C. 1985) (holding that a depreciation in property

was a substantial injury supporting a nuisance suit). In sum, like

the majority, I would remand the nuisance and trespass claims;

however, in my opinion, any damages arising therefrom should

exclude damages for personal injury.

For these reasons, I concur in part in the majority opinion

and respectfully dissent in part as I have described above.

2 Plaintiffs submitted deposition testimony of James T. Gentry, a real

estate broker/appraiser and former bank director, that the local real estate

community would not consider even the least contaminated property mar-

ketable after the media released information of contamination in 1987. This

was supported by plaintiffs’ testimony that no one would buy their properties

because of the contamination, and by evidence that the properties had

substantial value prior to the discovery of contamination.

20a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

MARCH 6, 1995

No. 92-2219

CA-88-253-B-C

MARTHA CARROLL; JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

Justin Gaddis and Derrick Gaddis, both minors;

RANDY GADDIS, individually and as next friend and

parent of Justin Gaddis and Derrick Gaddis, both minors;

FRED ALLEN CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

DEBBIE CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

BARBARA MESSER; ANCY SIMONDS, individually

and as next friend and parent of Jennifer Simonds, a minor;

JAMES GREEN; MARVIN GARRETT; KENNY GREEN;

PEGGY GREEN; SANDRA HANCOCK, individually and

as next friend and parent of Chuck Hancock, a minor;

JAMES R. MESSER, individually and as next

friend and parent of Jonathan Messer, a minor;

MELANIE MESSER, individually and as next friend and

parent of Jonathan Messer, a minor; ANN CARROLL

Plaintiffs - Appellants,

and

LUCILLE LEATHERWOOD, individually and as

next friend and parent of Crystal Leatherwood, a minor;

EDNA CONLEY; JOE CONLEY; TERRY CONLEY

Plaintiffs,

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Vv.

LITTON SYSTEMS, INC., a Delaware Corporation

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM

Defendant - Appellee,

and

LITTON INDUSTRIES, INC.,

through its Agent for Service of Process:

THE CORPORATION TRUST COMPANY,

Defendant.

PRODUCT LIABILITY ADVISORY COUNCIL, INCORPORATED

Amicus Curiae

On Petition for Rehearing with

Suggestion for Rehearing In Banc

Filed:

March 6, 1995

The appellants’ and the appellee’s petitions for rehearing

and suggestions for rehearing in banc and the answers to the

petitions were submitted to this Court. As no member of this

Court or the panel requested a poll on the suggestions for

rehearing in banc, and

As the panel considered the petitions for rehearing and is

of the opinion that they should be denied,

IT IS ORDERED that the petitions for rehearing and

suggestions rehearing in banc are denied.

Entered at the direction of Judge Russell with the concur-

rence of Judge Williams and Senior Judge Butzner.

For the Court,

/s/ Bert M. Montague

CLERK

22a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRYSON CITY DIVISION

CIVIL NO. B-C-88-253

MARTHA CARROLL, JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

JUSTIN GADDIS, and DERRICK GADDIS, both minors;

RANDY GADDIS, individually and as next friend and

parent of JUSTIN GADDIS, and DERRICK GADDIS, both minors;

FRED ALLEN CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor;

DEBBIE CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor;

BARBARA MESSER; ANCY SIMONDS, individually

and as next friend and parent of CHUCK HANCOCK, a minor;

JAMES R. MESSER, individually and as next

friend and parent of JONATHAN MESSER, a minor;

MELANIE MESSER, individually and as next friend and

parent of JONATHAN MESSER, a minor; aad ANN CARROLL,

Plaintiffs,

v.

LITTON SYSTEMS, INC., a Delaware Corporation,

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM,

Defendant.

FILED

JUL 15, 1991

ASHEVILLE, N.C.

U.S. DISTRICT COURT

WESTERN DISTRICT OF N.C.

23a

ORDER

By Order of this Court dated December 7, 1987, Chief

United States Magistrate Judge J. Toliver Davis was designated

to conduct a hearing on pending motions in the captioned civil

action and to submit to this Court recommendations for the

disposition of these motions.

On October 29, 1990, the Magistrate Judge filed a Memo-

randum and Recommendation in this case containing proposed

findings of fact and conclusions of law in support of recommen-

dations regarding the following motions made by Defendant

Litton Systems, Inc. (“Litton”): (1) Motion in Limine to Exclude

Opinion Testimony Related to Plaintiffs’ Past Alleged Exposure

to the Chemicals in Issue; (2) Motion for Summary Judgment

on Issue of Medical Causation; (3) Motion for Summary Judg-

ment on Alleged Increased Risk of Disease; (4) Motion for

Summary Judgment on Emotional Distress Claims; (5) Motion

for Summary Judgment on Claims of Nuisance and Trespass;

(6) Motion for Summary Judgment on Plaintiffs’ CERCLA Cost

Recovery Claim; (7) Motion for Summary Judgment on Plain-

tiffs’ RCRA Claim; and (8) Motion to Deem Admitted Facts Set

Forth in Requests for Admission, or Alternatively, To Deter-

mine Sufficiency of Objections. In the course of said Memoran-

dum and Recommendation, the Magistrate Judge also presented

proposed findings of fact and conclusions of law in support of

a recommendation regarding the following motions made by .

Plaintiffs: (1) Motion to Strike From the Record Materials

Submitted by the Defendant in Support of Defendant’s Motions

for Summary Judgment and for Sanctions Against the Defen-

dant; (2) Motion for Partial Summary Judgment; (3) Motion to

Rejoin Litton Industries, Inc. as a Party Defendant and for

Sanctions; and (4) Motion of Plaintiff Sandra Hancock, Indi-

vidually and as Next Friend and Parent of Chuck Hancock, a

Minor, For Voluntary Dismissal. The Magistrate Judge’s rec-

ommendations were filed in three parts: Recommended Find-

24a

ings of Fact, Part I; Conclusions of Law, Part I; and Memoran-

dum and Recommendation, Part III.

The Magistrate Judge’s Recommendation advised counsel

for the parties that any objections to the findings contained

therein were to be filed in writing within ten (10) days after

service of the Recommendation. The ten-day period was to

expire on November 12, 1990. However, as permitted by the

undersigned’s granting of three separate motions by counsel for

the Plaintiffs, Plaintiffs’ objections to the Recommendation

were not filed until December 5, 1990. See order, filed Decem-

ber 5, 1990 (Pleading No. 284). Plaintiffs were thereby afforded

a total of thirty-seven (37) days for the filing of their objections.

Plaintiffs’ objections were accompanied by a request for further

argument before this Court. Memorandum in Support of Plain-

tiff’s [sic] Objections to the Findings, Conclusions and Recom-

mendations of the Magistrate, at 134, filed December 5, 1990

(Pleading No. 285). An earlier such request has already been

denied by the Magistrate Judge. See Order, filed October De

1990 (Pleading No. 273). Defendant filed a memorandum in

support of the Magistrate Judge’s Recommendation on Decem-

ber 21, 1990.

After a careful de novo review of the Magistrate Judge’s

Recommendation, Piaintiffs’ objections, and Defendant’s

memorandum, the Court finds that the proposed findings of fact

are supported by the record and that the proposed conclusions

of law are consistent with current case law. The Court accepts

the Magistrate Judge’s findings that there are no genuine issues

of material fact for trial, and that Plaintiffs have therefore failed

to properly respond to the Defendant’s motions for summary

judgment. Fed. R. Civ. P. 56(e). The Court accepts the Magis-

trate Judge’s recommendation that the proposed testimony of

Mr. Gerald K. Moore and Dr. Hugh Spencer related to Plaintiffs’

past alleged exposure to the chemicals in issue be excluded. The

Court further accepts the Magistrate Judge’s recommendation

§

2

)

)

peices ee ee a ee _

Maw die tei tee a ee eee

25a

that the following motions be denied: (1) Defendant’s Motion

to Deem Admitted Facts Set Forth in Requests for Admission,

or Alternatively, To Determine Sufficiency of Objections; (2)

Plaintiffs’ Motion to Strike From the Record Materials Submit-

ted by the Defendant in Support of Defendant’s Motions for

Summary Judgment and for Sanctions Against the Defendant;

(3) Plaintiffs’ Motion for Partial Summary Judgment; (4) Plain-

tiffs’ Motion to Rejoin Litton Industries, Inc. as a Party Defen-

dant and for Sanctions; and (5) Motion of Plaintiff Sandra

Hancock, Individually and as Next Friend and Parent of Chuck

Hancock, a Minor, For Voluntary Dismissal. Finally, in order

to serve the ends of justice, the Court accepts the Magistrate

Judge’s recommendation that an inquiry, pursuant to Fed. R.

Civ. P. 11, be conducted.

Furthermore, pursuant to 28 U.S.C. § 636(b)(1), the Court

finds that any further argument on these matters would be

unnecessary, and thus denies Plaintiffs’ request for oral argu-

ment. Plaintiff is entitled to a de novo review of the Magistrate’s

Recommendation, not a de novo hearing. See, e.g., United

States v. Raddatz, 447 U.S. 667, 674 (1980). Further argument

cannot repair the shortcomings of Plaintiffs’ case.

IT IS, THEREFORE, ORDERED that:

1. Defendant’s Motion in Limine to Exclude Opinion Testi-

mony Related to Plaintiffs’ Past Alleged Exposure to the

Chemicals in Issue is ALLOWED;

2. Defendant’s Motion for Summary Judgment on Issue of

Medical Causation i; ALLOWED;

3. Defendant’s Motion for Summary Judgment on Alleged

Increased Risk of Disease is ALLOWED;

4. Defendant’s Motion for Summary Judgment on Emotional

Distress Claims is ALLOWED;

5. Defendant’s Motion for Summary Judgment on Claims of

Nuisance and Trespass is ALLOWED;

10.

12.

26a

Defendant’s Motion for Summary Judgment on Plaintiffs’

CERCLA Cost Recovery Claim is ALLOWED;

Defendant’s Motion for Summary Judgment on Plaintiffs’

RCRA Claim is ALLOWED;

Plaintiffs’ Motion to Strike From the Record Materials

Submitted by the Defendant in Support of Defendant’s

Motions for Summary Judgment and for Sanctions Against

the Defendant is DENIED;

Plaintiffs’ Motion for Partial Summary Judgment is DE-

NIED as MOOT;

Plaintiffs’ Motion to Rejoin Litton Industries, Inc. as a Party

Defendant and for Sanctions is DENIED as MOOT;

. Defendant’s Motion to Deem Admitted Facts Set Forth in

Requests for Admission, or Alternatively, To Determine

Sufficiency of Objections is DENIED as MOOT; and

Motion of Plaintiff Sandra Hancock, Individually and as

Next Friend and Parent of Chuck Hancock, a Minor, For

Voluntary Dismissal is DENIED.

IT IS FURTHER ORDERED that counsel for both parties

appear before the Court at an inquiry, pursuant to Fed. R. Civ.

P. 11, concerning the potential imposition of sanctions against

counsel for the Plaintiffs. Counsel for both parties are hereby

ordered to present to the Court, within twenty (20) days of

receipt of this Order, briefs, memoranda, and any other infor-

mation pertinent to the issue of Rule 11 sanctions.

The Court further orders that the Clerk of Court schedule

the aforementioned Rule 11 inquiry, and to notify counsel for

both parties of the date for said hearing.

A Judgment reflecting these findings will be filed contem-

poraneously herewith.

27a

THIS the 15th day of July, 1991.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

28a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRYSON CITY DIVISION

CIVIL NO. B-C-88-253

MARTHA CARROLL, JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

JUSTIN GADDIS, and DERRICK GADDIS, both minors;

RANDY GADDIS, individually and as next friend and

parent of JUSTIN GADDIS, and DERRICK GADDIS, both minors:

FRED ALLEN CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor:

DEBBIE CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor;

BARBARA MESSER; ANCY SIMONDS, individually and

as next friend and parent of CHUCK HANCOCK, a minor;

JAMES R. MESSER, individually and as next

friend and parent of JONATHAN MESSER, a minor;

MELANIE MESSER, individually and as next friend and

parent of JONATHAN MESSER, a minor; and ANN CARROLL,

Plaintiffs,

v.

LITTON SYSTEMS, INC., a Delaware Corporation,

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM,

Defendant.

FILED

JUL 15 1991

ASHEVILLE, N.C.

U.S. DISTRICT COURT

WESTERN DISTRICT OF N.C.

AILS Obit Ra nese Hanh

29a

JUDGMENT

For the reasons stated in the Order filed contemporane-

ously herewith,

IT IS ORDERED, ADJUDGED AND DECREED that the

Defendant’s motions for summary judgment are hereby AL-

LOWED and this case is hereby DISMISSED on the merits.

The Court retains jurisdiction over the pending inquiry,

pursuant to Fed. R. Civ. P. 11, concerning the potential imposi-

tion of sanctions against counsel for the Plaintiffs.

THIS the 15th day of July, 1991.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

30a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

BRYSON CITY DIVISION

CIVIL NO. B-C-88-253

MARTHA CARROLL, JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

JUSTIN GADDIS, and DERRICK GADDIS, both minors;

RANDY GADDIS, individually and as next friend and

parent of JUSTIN GADDIS, and DERRICK GADDIS, both minors:

FRED ALLEN CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor:

DEBBIE CHAMBERS, individually and

as next friend and parent of RUSTY CHAMBERS, a minor:

BARBARA MESSER; ANCY SIMONDS, individually

and as next friend and parent of CHUCK HANCOCK, a minor;

JAMES R. MESSER, individually and as next

friend and parent of JONATHAN MESSER, a minor;

MELANIE MESSER, individually and as next friend and

parent of JONATHAN MESSER, a minor; and ANN CARROLL,

Plaintiffs,

v.

LITTON SYSTEMS, INC., a Delaware Corporation,

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM,

Defendant.

FILED

ASHEVILLE, N.C.

92 AUG 20 AM 10:34

U.S. DISTRICT COURT

W. DISTRICT OF N.C.

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ORDER

THIS MATTER is before the Court on Plaintiffs’ motion,

pursuant to Fed. R. Civ. P. 59(e), to alter or amend the Order

and Judgment of July 15, 1991, dismissing Plaintiffs’ claims in

the captioned civil matter. The Court shall also consider herein

Defendant’s motion to strike the affidavits attached to Plaintiffs’

Motion to Alter or Amend Judgment.! For the reasons stated

herein, Plaintiffs’ motion will be denied and Defendant’s motion

will be allowed.

The facts of this elephantine case are set forth in great detail

in the Memorandum and Recommendation authored by Chief

United States Magistrate Judge J. Toliver Davis. Recom-

mended Findings of Fact, Part I, filed October 29, 1990

(Pleading No. 274) [“Findings of Fact’’]; Conclusions of

Law, Part Il, filed October 29, 1990 (Pleading No. 275)

(“Conclusions of Law’’]; Memorandum and Recommenda-

tion, Part Ill, filed October 29, 1990 (Pleading No. 276)

(“Recommendation”]. As the Magistrate Judge’s Recommen-

dation, including its findings of fact and conclusions of law, has

already been accepted by Order of this Court, see Order, filed

July 15, 1991 (Pleading No. 293) [“July 15 ORDER”);

Judgement, filed July 15, 1991 (Pleading No. 294), there shall

be no restatement of the facts herein.

' Defendant’s motion also seeks the imposition of sanctions for Plain-

tiffs’ filing of the Rule 59(e) motion. Defendant Litton Systems, Inc.’s

Motion to Strike Affidavits and For Sanctions, filed August 12, 1991

(Pleading No. 306). The Court shall join Defendant’s motion for sanctions

with the other pending motions for Rule 11 sanctions, see, e.g., Defendant

Litton Systems, Inc.’s Motion to Implement Magistrate’s Recommenda-

tion Concerning Inquiry for Determination of Sanctions, filed June 12,

1991 (Pleading No. 291), and defer ruling on all motions for sanctions until

after a hearing can be conducted on the issue of sanctions.

32a

I. PLAINTIFFS’ RULE 59e) MOTION

A. Applicable Legal Standards Under Rule 59(e)

The decision whether to reopen a case under Rule 59(e) is

committed to the sound discretion of the trial court. See, e.2.5

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,

174 (Sth Cir. 1990); Boryan v. United States, 884 F.2d 767,

771 (4th Cir. 1989); Appeal of Sun Pipe Line Co., 831 F.2d

22, 25 (Ist Cir. 1987) (“{OJnce the ball has ended, the district

court has substantial discretion in deciding whether to strike

up the band again in order to allow the losing party to argue

new material or a new theory.”), cert. denied sub nom. Sun

Pipe Line Co. v. E.P.A., 486 U.S. 1055 (1988); American

Home Assurance Co. v. Glenn Estess & Assocs., Inc.,763 F.2d

1237, 1238-39 (11th Cir. 1985).

The purpose of a Rule 59(e) motion is “ ‘to correct manifest

errors of law or fact or to present newly discovered evidence.””2

Waltman v. International Paper Co., 875 F.2d 468, 473 (5th

Cir. 1989) (quoting Keene Corp. v. International Fidelity Co.,

561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 735 F.2d 1367

(7th Cir. 1984)). See also Federal Deposit Ins. Corp. v. Meyer,

781 F.2d 1260, 1268 (7th Cir. 1986); Clifford v. Jacobs, 739

F. Supp. 957, 958 (M.D. Pa. 1990); Kalman v. Berlyn Corp.,

706 F. Supp. 970, 974 (D. Mass. 1989), aff'd in part, rev’d in

part on other grounds, 914 F.2d 1473 (Fed. Cir. 1990); United

States v. Carolina Eastern Chem. Co., 639 F. Supp. 1420, 1423

(D.S.C. 1986); Milwee v. Peachtree Cypress Inv. Co., 510 F.

Supp. 284, 289-90 (E.D. Tenn. 1978), aff'd, 644 F.2d 885 (6th

Cir. 1981). In order to succeed on a Rule 59(e) motion, the

2 Although not applicable in the instant case, a Rule 59(e) motion may

also be made due to an intervening change in the controlling law. See, e.g.,

Weyerhaeuser Corp. v. Koppers Co., 771 F. Supp. 1406, 1419 (D. Md.

1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.

Miss. 1990); Natural Resources Defense Council, Inc. v. E.P.A., 705 F.

Supp. 698, 702 (D.D.C. 1989), vacated on other grounds, 707 F. Supp. 3

(D.D.C. 1989).

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33a

movant has the heavy burden of demonstrating “some substan-

tial reason that the court is in error.” Kalman, 706 F. Supp. at

974. See also Wallace v. Brown, 485 F. Supp. 77,79 (S.D.N.Y.

1979); Hager v. Paul Revere Life Ins. Co., 489 F. Supp. 317

(E.D. Tenn. 1977), aff'd without opinion, 615 F.2d 1360 (6th

Cir. 1980); In re Ionosphere Clubs, Inc., 103 B.R. 501, 503

(Bankr. S.D.N.Y. 1989); In re Watson, 102 B.R. 112, 113

(Bankr. S.D. Ohio 1989).

Rule 59(e) does not permit the resurrection of facts and

legal theories already considered and rejected by the trial court,

or authorize the proffer of new theories previously overlooked

or ignored by the movant, or allow “an unhappy litigant one

additional chance to sway the judge.”3 Durkin v. Taylor, 444

F. Supp. 879, 889-90 (E.D. Va. 1977). See also Forsythe v.

Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th Cir.

1989); Estate of Pidcock v. Sunnyland America, Inc., 726 F.

Supp. 1322, 1334 (S.D. Ga. 1989); Kalman, 706 F. Supp. at

974; Davis v. Lukhard, 106 F.R.D. 317, 318 (E.D. Va. 1984),

vacated as moot, 788 F.2d 973 (4th Cir.), cert. denied, 479 U.S.

868 (1986). “Rule 59(e) is aimed at reconsideration not initial

consideration. Generally, parties cannot use a rule 59(e) motion

to raise arguments which could, and should, have been made

before the judgment issued.” Building & Constr. Trades Dep’t

v. Rockwell int’! Corp., 758 F. Supp. 1428, 1429 (D. Colo.

1991) (citations omitted) (emphasis in original). See also

White v. New Hampshire Dep’t of Employment Sec., 455 U.S.

445, 451 (1982); Lussier v. Dugger, 904 F.2d 661, 667 (11th

Cir. 1990); Harley-Davidson Motor Co. v. Bank of New Eng-

land-Old Colony N.A., 897 F.2d 611, 616 (1st Cir. 1990);

Weyerhaeuser Corp., 771 F. Supp. at 1419; Johnson vy. Rich-

mond, 102 F.R.D. 623 (E.D. Va. 1984). A motion seeking

. “A motion for reconsideration is not a license for a losing party’s

attorney to get a ‘second bite at the apple’ by using a word processor to move

around the paragraphs from a previously submitted brief, and file a retread

of the old brief disguised as a motion for reconsideration.” Shields v. Shetler,

120 F.R.D. 123, 126 (D. Colo. 1988).

34a

complete alteration of a judgment so as to effectively reverse the

trial court’s original findings, on a theory that the judgment is

predicated on an erroneous view of the law, is more properly

addressed by appeal rather than reargument. See, e.g., Frito-

Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 390 (D.P.R.

1981); Durkin, 444 F. Supp. at 889; Blair v. Delta Air Lines,

Inc., 344 F. Supp. 367, 368 (S.D. Fla. 1972), aff'd, 477 F.2d

564 (6th Cir. 1973); Erickson Tool Co. v. Balas Collet Co.,

277 F. Supp. 226, 234 (N.D. Ohio 1967), aff'd, 404 F.2d 35

(6th Cir. 1968).

B. Plaintiffs’ Rule 59e) Arguments

Plaintiffs have set forth four arguments in support of their

motion to alter or amend the Order and Judgment entered in the

instant case:

1. The medical causation opinions set forth by Plaintiffs’

medical experts remain valid because they were not predi-

cated on the back calculations of trichloroethylene

(“TCE”) well concentrations by Dr. Hugh Spencer, which

the Court excluded based upon the Magistrate Judge’s

Recommendation;

2. The opinion of Plaintiffs’ hydrogeological expert Gerald

Moore as to the course and speed of the migration of TCE,

thereby placing TCE in the C-1 well between 1969 and

1971, coincides and is supported by the medical evidence

and records in the case;

3. The Magistrate Judge’s findings and Recommendation as

to Dr. Spencer’s proposed testimony and the basis of Dr.

Spencer’s opinion demonstrate a misunderstanding of the

record; and

4. The Order and Judgment ignores Plaintiffs’ claims for

property damage as a result of the alleged TCE contamina-

tion.

Pe Oe, ee

petiah ties

nT” OTT sis Oe. -

35a

According to Plaintiffs, these inherent errors “sufficiently dem-

onstrate that the dismissal of all claims for all plaintiffs is in error

and the Order of July 15, 1991, should be altered and amended

accordingly.” Plaintiffs’ Motion to Alter or Amend Judg-

ment at 2, filed July 25, 1991 (Pleading No. 295) [“Motion to

Alter or Amend Judgment”’].4

1. Validity of Expert Medical Causation Opinions

Plaintiffs first claim that the causation opinions of their

medical experts were not predicated on Dr. Spencer’s back

calculations of TCE concentrations, and therefore remain valid

despite the Court’s exclusion of those calculations. This argu-

ment has already been considered and rejected by this Court.

See Plaintiff's [sic] Exceptions and Objections to the Find-

ings of Fact, Conclusions of Law, and Recommendations of

the Magistrate and Request for De Novo Hearing With

Additional Evidence Submitted [“Plaintiffs’ Objections’ at

85, filed December 5, 1990 (Pleading No. 285) (“Defendants

contend that with or without Dr. Spencer’s back calculations

the plaintiffs have not been exposed to enough TCE to cause

any adverse health effects, no matter how long they lived

there or how much of the water they drank or otherwise

utilized. Plaintiffs’ experts express the contrary opinion.”);

July 15 Order at 3 (conducting a de novo review of Plaintiffs’

objections to the Magistrate Judge’s Recommendation).

This argument was also considered by the Magistrate Judge

when he examined the validity of Plaintiffs’ personal injury

claims “even if . . . Dr. Spencer’s evidence [was] admitted.”

* In ruling on Plaintiffs’ Motion to Amend or Alter Judgment, the Court

has also considered the subsequently-filed “Plaintiffs’ Opposition to Defen-

dant’s Motion to Strike Affidavits and For Sanctions with Respect to Plain-

tiffs’ Rule 59(e) Motion,” filed August 26, 1991 (Pleading No. 308).

However, that pleading offers no additional reason or proof, other than the

four arguments present in Plaintiffs’ Rule 59(e) motion, suggesting that the

Court’s July 15 Order and Judgment are somehow erroneous.

36a

Recommendation at 31. See also Conclusions of Law at 23,

30. By affirming the Recommendation after a de novo review,

the Court adopted the Magistrate Judge’s alternative considera-

tion of the evidence as well. Hence, Plaintiffs’ first Rule 59(e)

argument has already been considered and rejected three times.

Absent proof that the initial resolution of this issue was errone-

ous, the Court shall refuse to revisit this theory a fourth time.

Because Plaintiffs have failed to demonstrate a substantial rea-

son that the Court erred in this regard, Rule 59(e) reconsideration

is inapposite as to the TCE back calculations by Dr. Spencer and

the expert medical causatioropinions predicated thereon.

Furthermore, the Court questions the accuracy of Plain-

tiffs’ assertion that their medical experts did not rely on Dr.

Spencer’s back calculations in formulating their causation opin-

ions. In July, 1990, Plaintiffs’ three medical experts, Dr. Alan

Broughton, Dr. Robert B. Feldman, and Dr. George C. Rodgers,

Jr., filed a joint affidavit in which they stated:

25. The estimates of exposure doses calculated by Dr.

Rodgers were prepared for reference as an estimate

only and were useful in analyzing estimates of the

various routes of exposure, and to obtain an estimate

of the range of exposures to which each individual

plaintiff was subjected. We have assumed Dr. Rodg-

ers [sic] calculations to be a reasonably accurate

estimation of the range of dosages to which these

plaintiffs were exposed and defer to Dr. Rodgers’

expertise in that respect... .

26. Even if Dr. Rodgers [sic] calculations were ad-

justed by the factor of 10 suggested by defendants

[sic] alternative calculation for respiratory exposure,

or were otherwise adjusted downward, this would not

effect [sic] the opinions expressed on causation in this

case for the plaintiffs who have had long term expo-

sures. If Dr. Spencer’s back calculations were dis-

37a

missed entirely, this would not require a change in our

opinions as to all plaintiffs for whom we have ex-

pressed a positive opinion on medical causation. /t

would, however, require another review of the infor-

mation on each plaintiff to ascertain the length of time

that the particular plaintiff was exposed to the well

water.

Appendix I1.A.5. (Joint Affidavit of Plaintiffs’ Medical Ex-

pert Witnesses) at 17-18 (emphasis added) attached to Plain-

tiffs’ Objections. The range of Plaintiffs’ exposure to TCE,

calculated by Dr. Rodgers and used by Plaintiffs’ medical

experts in formulating their opinions, were expressly predicated

on the Spencer back calculations: “I performed calculations to

arrive at estimates of the total exposure to TCE received by each

plaintiff over the years of exposure, based on the high and low

well concentration estimates provided by Dr. Spencer... . 1

stand by the calculations as a reasonable approximation of

exposure... .” Appendix I1.A.6. Affidavit of Dr. George

Rodgers) at 11 (emphasis added) attached to Plaintiffs’ Ob-

jections.°

Dr. Spencer’s back calculations provided the foundation

for the medical experts’ assumption that Plaintiffs had been

exposed to at least 100 ppb of TCE for an extended period of

> See also Plaintiffs’ Objections at 85 (“Dr. Spencer’s back calcula-

tions provide a useful estimate of ranges to support the assumption that

the water in the plaintiffs’ wells was at or above 100 ppb [parts per billion

concentration of TCE] for an extended period of time. And, while Dr.

Spencer’s back calculations provides [sic] a useful estimate of the ranges

for just how high those past concentrations were, all of plaintiffs’ experts

have testified that 100 ppb is generally accepted as a sufficient concen-

tration to produce symptoms in any chronic exposure. ...””). Absent the

testimony of Gerald Moore concerning TCE migration, which was properly

cluded by the Magistrate Judge, see infra Part LB.2., the only evidence

proffered by Plaintiffs to support the “assumption” that a concentration of

100 ppb was present in Plaintiffs’ water supply for an extended period of

time was Dr. Spencer’s back calculations.

38a

time. Exclusion of the Spencer calculations taints the accuracy

of Dr. Rodgers’ total exposure calculations, which were based

thereon. In turn, the accuracy of the medical experts’ opinions

are jeopardized by their reliance on the sullied exposure calcu-

lations by Dr. Rodgers. According to the Joint Affidavit of

Plaintiffs’ own expert witnesses, as quoted supra, the exclusion

of the Spencer calculations would require yet another series of

testing and review of each plaintiff and another round of discov-

ery by Defendant. As aptly stated by Magistrate Judge Davis:

The suggestion by plaintiffs that their experts be given

yet another chance to reformulate opinions would

require Litton to go through a third cycle [of review-

ing and responding to Plaintiffs’ expert nominations

and conducting depositions]. .. . Plaintiffs were

Clearly and repeatedly instructed that final expert

opinions were to be submitted and that no further

extensions would be allowed. Since plaintiffs’ medi-

cal causation experts cannot present evidence of cau-

sation to a reasonable degree of medical certainty at

this time without Dr. Spencer’s back-calculations, and

such back-calculations should be excluded, the testi-

mony of plaintiffs’ medical causation experts fails as

well.

Recommendation at 30-31 (emphasis in original). Contrary

to Plaintiffs’ first Rule 59(e) argument, the Court finds that

Plaintiffs’ medical experts did indeed rely on Dr. Spencer’s back

calculations, to the extent that the exclusion of those calculations

removes the critical underpinnings of validity and accuracy for

the causation opinions proffered by Plaintiffs’ medical experts.

2. Validity of Expert Opinion Pertaining to TCE Migration

Plaintiffs argue that the expert opinion proffered by Mr.

Moore, pertaining to the course and speed of TCE migration and

the presence of TCE in the C-1 well between 1969 and 1971, is

39a

corroborated by the Plaintiffs’ medical evidence and records in

the instant case.

In the instant case, the Magistrate Judge performed an

exhaustive examination of the medical evidence and records

presented by the Plaintiffs. See,e.g., Findings of Fact at 40-79;

Conclusions of Law at 23-31; Recommendation at 31-48.

After conducting the requisite de novo review of all relevant

pleadings, the Court accepted the Magistrate Judge’s findings

of fact, conclusions of law, and recommendations as to all issues,

including the Magistrate Judge’s evaluation of Plaintiffs’ medi-

cal evidence and records. See July 15 Order. Plaintiffs’ medi-

cal evidence and records have been considered and rejected by

the Magistrate Judge and this Court as grounds for a cause of

action in the instant case, and Plaintiffs have failed to set forth

a substantial reason why either the Magistrate Judge or the

undersigned is in error.

Assuming the proffered medical evidence could be consid-

ered as corroborative of Mr. Moore’s expert opinion, Plaintiffs

have failed to either address or rectify the litany of other prob-

lems implicit in the Moore opinion that resulted in the exclusion

of that opinion evidence:

Among other things, a review of the materials submit-

ted shows that Mr. Moore has never run any scientific

tests on plaintiffs’ wells; he has never observed such

wells in the condition that he says would have been

necessary to pull chemicals under Slow Creek; he has

never taken any groundwaier measurements between

Slow Creek and plaintiffs’ wells to determine in

which direction the groundwater is flowing; and he

has never reviewed any rainfall data to confirm or

refute his hypotheses aboutflow during the periods of

dry weather. In short, he has offered opinions that are

completely lacking of an adequate factual basis as to

40a

when in the past chemicals allegedly arrived from the

plant to plaintiffs’ wells.

Recommendation at 23-24. Notwithstanding any corrobora-

tive effect Plaintiffs’ medical evidence might have, the Moore

opinion is devoid of any adequate factual basis and, therefore,

any indicia of reliability in relation to the instant case. Recon-

sideration under Rule 59(e) of the Court’s July 15 Order is

inappropriate as to either the expert opinion of Mr. Moore or the

proffered medical evidence and records.

3. Magistrate Judge’s “Misunderstanding” of the Record

According to Plaintiffs, the findings of fact and Recom-

mendation set forth by the Magistrate Judge and accepted by

this Court as to Dr. Spencer’s proposed testimony and the basis

of his expert opinion indicate a misunderstanding of the record

presented in the instant case. Despite the Court’s ruling infra as

to the disposition of the affidavits attached to Plaintiffs’ Motion

to Alter or Amend Judgment, the conclusory nature of Plaintiffs’

third Rule 59(e) argument has required the Court to consider the

dilatorily proffered affidavit of Dr. Spencer in order to compre-

hend the gist of Plaintiffs’ argument. Plaintiffs’ only contention

as to this third argument is that the Magistrate Judge improperly

concluded that Dr. Spencer conceded in his deposition that his

calculations and testimony were speculative.

The deposition testimony in question reads as follows:

Q ___ [by counsel for the Defendant] Would you de-

scribe these kinds of calculations as somewhat

speculative?

A _ [by Dr. Hugh Spencer] They are based upon

what’s available in the world’s referee [sic]

literature, at least that I have reviewed in this

case; not speculative in that I just looked at this

and decided, oh gosh, these look like good num-

‘ ee ee

4la

bers. I had reasons for these numbers. I have

cited all of those publications, and given that

information in this deposition several times.

And your characterization of it as speculative

is yours, and it’s a fair thing for you to say. I

don’t see it as speculative. I see it as it is. I’ve

described what I’ve done; and one adjective to

cover it all, to me doesn’t work.

Exhibit A (page 236 of Spencer Deposition, emphasis

added), Affidavit of Dr. Hugh Spencer attached to Motion to

Alter or Amend Judgment.. Upon considering the deposition

testimony of Dr. Spencer, Magistrate Judge Davis found that

“Dr. Spencer admitted it was fair for Litton’s counsel to charac-

terize his calculations as ‘speculative.’” Findings of Fact at 31

(citing Spencer Deposition at 2-236). See also Conclusions

of Law at 18; Recommendation at 27-28. Subsequent to the

Court’s dismissal of this action, Plaintiffs have obtained another

affidavit from Dr. Spencer which states: “It was my belief

previously that anyone who read the specific testimony at p. 236

of deposition I gave in this case . . . would realize that it was a

misstatement to find that I had agreed that it would be fair to say

my Calculations and testimony were speculative.” Affidavit of

Dr. Hugh Spencer at 1 attached to Motion to Alter or Amend

Judgment.

There are at least two reasons why Rule 59(e) reconsidera-

tion is also inappropriate as to Plaintiffs’ third argument. First,

this argument has already been considered and rejected by both

the Magistrate Judge and the undersigned. In evaluating the

proffered evidence, the Magistrate Judge described Dr.

Spencer’s testimony as a concession that his calculations could

be fairly characterized as speculative. Findings of Fact at 31;

Conclusions of Law at 18; Recommendation at 27-28. In

their written objections to the Recommendation, Plaintiffs ex-

pressly objected to the Magistrate Judge’s purported mischarac-

42a

terization of the Spencer deposition. Plaintiffs’ Objections at

75-76. While conducting a de novo review of the relevant

pleadings, including Plaintiffs’ objections pertaining to the

Spencer deposition, the Court considered and rejected this argu-

ment. See July 15 Order. In light of Dr. Spencer’s response

to the question posed, as emphasized in the above-quoted pas-

sage, the Court can find no error in its acceptance of the

Magistrate Judge’s finding that “Dr. Spencer admitted it was fair

for Litton’s counsel to characterize his calculations as ‘specula-

tive.” Findings of Fact at 31.

Second, even if the Court discounted the questioned char-

acterization of Dr. Spencer’s deposition testimony, Plaintiffs

have failed to either address or rectify the plethora of other

problems identified by the Magistrate Judge that resulted in the

exclusion of Dr. Spencer’s opinion evidence. See, e.g., Find-

ings of Fact at 30-38; Conclusions of Law at 16-19; Recom-

mendation at 26-29. Regardless of the statement by Dr.

Spencer on page 236 of his deposition, the Court reaffirms its

acceptance of the Magistrate Judge’s Recommendation that Dr.

Spencer’s proposed opinions be excluded because they are

“speculative, find no support in the scientific literature, are not

based upon a reliable, demonstrated methodology, are not rea-

. sonably based upon the facts, and would not be of assistance to

the trier of fact.” Recommendation at 29. Therefore, Rule

59(e) reconsideration is inappropriate as to Plaintiffs’ third

argument.

4. Disregard for Property Damage Claims

Plaintiffs’ final Rule 59(e) argument claims that the July

15 Order issued by this Court ignores their claims for property

damage as a result of the alleged TCE contamination. This

argument is absolutely erroneous.

Although it sought recovery for alleged property damage,

Plaintiffs’ amended complaint predicated those claims upon

fa tale hk

43a

only two theories of recovery, nuisance and trespass. See

Amended Complaint at 11-12, filed December 23, 1988

(Pleading No. 7). Plaintiffs never proffered another theory of

recovery for alleged property damage.® See, e.g., Plaintiffs’

Memorandum in Opposition to Defendants [sic] Motion for

Summary Judgment on Plaintiffs’ Claims for Nuisance and

Trespass, filed August 2, 1990 (Pleading No. 258). Magistrate

Judge Davis gave extensive consideration to Plaintiffs’ claims

of nuisance and trespass, and recommended that the Court grant

Defendant’s motion for summary judgment on those issues. See

Findings of Fact at 79-81; Conclusions of Law at 44-50;

Recommendation at 54-57, 68. Plaintiffs reiterated their prop-

erty damage claims under theories of nuisance and trespass in

their written objections to the Recommendation: “Whether a

physician has expressed to a reasonable degree of medical

certainty that a specific complaint of any specific plaintiff was

most probably caused by that plaintiff's exposure to TCE has

absolutely no bearing on whether there has been an injury to a

property interest under nuisance and/or trespass.” Plaintiffs’

Objections at 97. In considering this objection, the Court’s J uly

15 Order made the following statements:

After a careful de novo of the Magistrate Judge’s

Recommendation, Plaintiffs’ objections, and Defen-

dant’s memorandum, the Court finds that the pro-

posed findings of fact are supported by the record and

that the proposed conclusions of law are consistent

with current case law. The Court accepts the Magis-

© Subsequent to the filing of their amended complaint, Plaintiffs did file

two motions for ieave to file additional amended complaints. See Plaintiffs’

Motion for Leave to Amend Complaint, filed March 28, 1989 (Pleading

No. 40); Plaintiffs’ Motion for Leave to Amend Complaint, filed April

18, 1989 (Pleading No. 49). The first motion, which was denied by Magis-

trate Judge Davis, see Order, filed April 11, 1989 (Pleading No. 45), sought

only to add additional parties to the case. Plaintiffs withdrew the second

motion to amend. See Order, filed June 7, 1989 (Pleading No. 72).

44a

trate Judge’s findings that there are no genuine issues

of material fact for trial, and that Plaintiffs have

therefore failed to properly respond to the Defen-

dant’s motions for summary judgment.

IT IS, THEREFORE, ORDERED that:

5. Defendant’s Motion for Summary Judgment

on Claims of Nuisance and Trespass is AL-

July 15 Order at 3-5. See also Judgment, filed July 15, 1991

(Pleading No. 294).

Contrary to their fourth argument, Plaintiffs’ claims for

property damage as a result of the alleged TCE contamination

were considered and rejected by the Magistrate Judge and by

the Court’s July 15 Order. This fourth argument is insufficient

to warrant Rule 59(e) reconsideration. As aptly stated by Mag-

istrate Judge Davis, “[aJll litigation must come to an end.”

Recommendation at 30. The time has come for Carroll et al.

v. Litton Systems, Inc. to end.

Il. DEFENDANT’S MOTION

TO STRIKE AFFIDAVITS

In support of their Motion to Alter or Amend Judgment,

Plaintiffs proffer new affidavits from three of their proposed

expert witnesses, Dr. Alan Broughton, Dr. George Rodgers, and

Dr. Hugh Spencer. Prior to the submission of these affidavits,

the Magistrate Judge and the Court had considered a wealth of

evidence from these three witnesses, including depositions,

affidavits, reports, and records. Both the Magistrate Judge and

the Court have rejected the evidence from these witnesses as

insufficient to create genuine issues of material fact for trial.

The Court’s review of the newly submitted affidavits reveals

45a

that they are yet another futile attempt, by way of placing new

interpretations on previously presented evidence, to disavow the

deficiencies in these witnesses’ testimony and evidence identi-

fied by the Magistrate Judge and accepted by this Court.

As set forth supra Part I.A., Rule 59(e) does not permit the

resurrection of rejected facts and legal theories or the proffer of

'w theories previously ignored by counsel. Moreover,

[iJn any case in which a party seeks to upset a sum-

mary judgment on the basis of evidence she failed to

introduce on time, two important judicial imperatives

‘lash: the need to bring litigation to an end and the

need to render just decisions on the basis of all the

facts. The task of the district court in such a case is

to strike the proper balance between these competing

interests. In order to do this, the court should con-

sider, among other things, the reasons for the moving

party’s default, the importance of the omitted evi-

dence to the moving party’s case, whether the evi-

dence was available to the nonmovant before she

responded to the summary judgment motion, and the

likelihood that the nonmoving party will suffer unfair

prejudice if the case is reopened.

Lavespere, 910 F.2d at 174 (footnote omitted).

The factors set forth by the Lavespere court weigh heavily

against the Court’s acceptance of Plaintiffs’ new affidavits as

evidentiary materials sufficient to warrant alteration or amend-

ment of the Court’s Judgment under Rule 59(e). Plaintiffs have

offered no explanation why these affidavits, and the Rule 59(e)

arguments they supposedly clarify and support, were previously

unavailable or not presented to either the Magistrate Judge or

this Court. See, e.g., White, 455 U.S. at 451; Building Constr.

Trades Dep’t, 758 F. Supp. at 1429. The 134-page memoran-

dum in support of Plaintiffs’ objections to the Magistrate

Judge’s Recommendation and the 2-volume Appendix attached

46a

thereunto could have easily contained these new, albeit redun-

dant, pleadings. As demonstrated in the Court’s consideration

of Plaintiffs’ Rule 59(e) motion supra, these affidavits add

nothing to the Plaintiffs’ case and are, in fact, irrelevant and

unpersuasive. As to the previous availability of these affidavits,

Plaintiffs are attempting to ambush the Defendant with new

interpretations and theories based on expert opinions available

to the Plaintiffs since at least late 1989. See Findings of Fact

at 7-8 (Plaintiffs nominated Dr. Broughton as an expert

witness on May 15, 1989), 16 (Plaintiffs nominated Drs.

Rodgers and Spencer on November 30, 1989). Finally, if the

case were reopened, Defendant would suffer unfair prejudice,

in that it would be forced to defend against a meritless case by

initiating a third round of discovery and trial preparation neces-

sitated only by the incessant case mismanagement of counsel for

the Plaintiffs.

Defendant has, quite appropriately and correctly, identified

at least two other reasons why these new affidavits should be

struck: (1) they are irrelevant, in that they do not address the

many alternative, valid grounds for exclusion and dismissal set

forth n the Recommendation; and (2) they are in direct violation

of the Magistrate Judge’ December 26, 1989, Order, in which a

final jeadline of January 30, 1990, was established for the

Plaintffs to produce the expert opinions and the bases of those

opiniens upon which the instant case was to be predicated. See

Defendant Litton System Inc.’s Motion to Strike Affidavits

and For Sanctions at 8, filed August 12, 1991 (Pleading No.

306).

The Court finds that Plaintiffs are not entitled to submit the

new dfidavits of Drs. Broughton, Rodgers, and Spencer in

suppot of their Rule 59(e) motion. The Court further finds that,

even i they could properly be considered in support of Plain-

tiffs’ notion, the affidavits would not warrant an amendment or

alteraton of the Court’s July 15 Order or Judgment under Rule

47a

59(e). Therefore, the Court shall allow Defendant’s motion to

strike the affidavits attached to Plaintiffs’ Motion to Alter or

Amend Judgment.

Ill. ORDER

IT IS, THEREFORE, ORDERED that Plaintiffs’ Mo-

tion, pursuant to Fed. R. Civ. P. 59(e), to Alter or Amend the

Order and Judgment of July 15, 1991, dismissing Plaintiffs’

claims in the captioned civil matter, is hereby DENIED.

IT IS FURTHER ORDERED that Defendant’s Motion

to Strike the Affidavits attached to Plaintiffs’ Motion to Alter or

Amend Judgment is hereby ALLOWED.

THIS the 20th day of August, 1992.

/s/ Richard L. Voorhees

RICHARD L. VOORHEES,

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

48a

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

BRYSON CITY DIVISION

B-C-88-253

MARTHA CARROLL, JAMES CARROLL;

ROSETTA EDWINA ROGERS; JAMES CARROLL, JR.;

KEITH S. GENTLE; BELINDA GADDIS,

individually and as next friend and parent of

Justin Gaddis, and Derrick Gaddis, both minors;

RANDY GADDIS, individually and as next friend and

parent of Justin Gaddis, and Derrick Gaddis, both minors;

FRED ALLEN CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

DEBBIE CHAMBERS, individually and

as next friend and parent of Rusty Chambers, a minor;

BARBARA MESSER; ANCY SIMONDS, individually

and as next friend and parent of Chuck Hancock, a minor:

JAMES R. MESSER, individually and as next

friend and parent of Jonathan Messer, a minor:

MELANIE MESSER, individually and as next friend and

parent of Jonathan Messer; and ANN CARROLL,

Plaintiffs,

v.

LITTON SYSTEMS, INC., a Delaware Corporation

through its Agent for Service of Process:

C.T. CORPORATE SYSTEM,

Defendant.

FILED

OCT 29, 1990

ASHEVILLE, N.C.

U.S. DISTRICT COURT

W. DISTRICT OF N.C.

49a

RECOMMENDED

FINDINGS OF FACT,

PARTI

PURSUANT TO 28, UNITED STATES CODE, SEC-

TION 636(b) and the standing Orders of Designation entered

by United States District Judge Richard L. Voorhees, the under-

signed magistrate has before him the following motions: Litton

Systems, Inc.’s (“Litton’s”) Motion in Limine to Exclude Opin-

ion Testimony Related to Plaintiffs’ Past Alleged Exposure to

the Chemicals in Issue (“Motion to Exclude”), Litton’s Motion

for Summary Judgment on Issue of Medical Causation (“Motion

on Causation”), Litton’s Motion for Summary Judgment on

Alleged Increased Risk of Disease (“Motion on Risk’’), Litton’s

Motion for Summary Judgment on Emotional Distress Claims

(“Motion on Distress”), Litton’s Motion for Summary Judgment

on Claims of Nuisance and Trespass (“Motion on Nuisance”),

Litton’s Motion for Summary Judgment on Plaintiffs’ CERCLA

Cost Recovery Claim (Count VI) (“Motion on CERCLA”), and

Litton’s Motion for Summary Judgment on Plaintiffs’ RCRA

Claim (Count VII) (“Motion on RCRA”). In addition, the

undersigned Magistrate has before him the following motions

that have been filed by plaintiffs: Motion to Strike From the

Record Materials Submitted by the Defendant in Support of

Defendants’ Motions for Summary Judgment and for Sanctions

Against the Defendant and the Motion of Plaintiff Sandra Han-

cock, Individually, and as Next Friend and Parent of Chuck

Hancock, a Minor, For Voluntary Dismissal.

Having carefully considered the motions listed above, re-

viewed the pleadings, and conducted a hearing, the undersigned

magistrate respectfully submits the following recommended

findings of fact. These recommended Findings of Fact, Part I,

are released in conjunction with, and as part of, the under-

signed’s Conclusions of Law, Part II, and Memorandum and

Recommendation, Part II.

50a

I. FINDINGS OF FACT

A. Procedural Background of the Motions

1. The complaint in this case, filed on October 25, 1988,

alleged that 29 plaintiffs had been exposed to various chemicals

emanating from Litton’s Clifton Precision plant (“the plant”) in

Murphy, North Carolina. The chemicals to which plaintiffs

alleged exposure were trichloroethylene (“TCE”) and certain

other chlorinated organic compounds. Complaint, para. 12.

2. The complaint alleged that the exposure to chemicals

occurred as a result of such chemicals entering plaintiffs’ homes,

the homes of plaintiffs’ relatives, or plaintiffs’ workplaces,

through groundwater that was pumped into such homes and

workplaces from wells on properties surrounding the plant.

3. Plaintiffs alleged that they had been physically injured

as a result of exposure to such chemicals. Among other things,

plaintiffs alleged that they had “sustained permanent and debili-

tating illnesses and injuries, including but not limited to, nervous

system damage, gastrointestinal disorders, liver disease, skin

disorders, and immune system damage.” Complaint, para. 16.

4. Plaintiffs further alleged that they suffer from in-

creased risk of incurring disease in the future as a result of their

exposure to the chemicals at issue.

5. Plaintiffs further alleged that they suffer from emo-

tional distress as a result of their exposure to the chemicals at

issue.

6. Plaintiffs further alleged that their real property had

been devalued as a result of the presence of chemicals from the

plant.

7. Plaintiffs further alleged that, as a result of their

exposure, they would need long-term medical monitoring “to

detect the onset of any symptoms of diseases caused by the

chemicals.”

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8. The complaint set forth five causes of action or theo-

nes of recovery for the alleged damages described above: neg-

ligence, including negligence per se, in the alleged violation of

various federal and state laws (Count J), gross negligence (Count

Il), strict liability for ultrahazardous activities (Count Ill), nui-

sance (Count IV), and trespass (Count V). In addition, the

complaint set forth two regulatory causes of action. Under

Count VI, plaintiffs sought to recover alleged “response costs”

as defined by the Comprehensive Environmental Response,

Compensation and Liability Act (“CERCLA”), 42, United

States Code, Section 9607(a), including costs for testing of

groundwater and soil, costs for alternative water supplies, costs

for medical testing and surveillance, and attorneys’ fees. Under

Count VIL, plaintiffs sought to pursue a citizens’ suit under the

Resource Conservation and Recovery Act (“RCRA”), 42,

United States Code, Section 6971, alleging, inter alia, that

Litton’s plant was in violation of RCRA.

9. On January 12, 1989, the Court entered a pretrial order

giving the parties 100 days to conduct discovery.

10. On February 6, 1989, plaintiffs filed a motion seeking

an indefinite extension of the time allowed in the discovery

order.

11. Although the complaint had been filed on October road

1988, plaintiffs failed to initiate any of their own discovery until

near the end of the initial discovery period specified in the

January 12, 1989, Order.

12. On March 28, 1989, the undersigned conducted the

first of many pretrial hearings in this matter. In response to

comments by plaintiffs’ counsel to the effect that counsel had

been busy working on other cases, the undersigned advised

counsel “[T]his Court expects you to have the necessary equip-

ment, horses, or whatever to carry the load, that is to do the work

that is required.” Transcript of March 28, 1989, Hearing at 2.

At the March 28, 1989, hearing, the undersigned also advised

52a

plaintiffs’ counsel that an indefinite extension of the discovery

period would not be granted, but did agree to allow an extension

of discovery as described below. As of the time of the hearing,

plaintiffs had not begun any discovery.

13. Plaintiffs’ counsel, Gary A. Davis, suggested at the

March 28, 1989, hearing that the case be pursued in a “phased”

manner. In response, the undersigned and counsel for both

parties agreed that discovery on issues of medical causation and

liability would take place first, to be followed by the identifica-

tion and deposition of expert witnesses who would provide

testimony on those aspects of the case and, finally, the filing of

dispositive motions on such issues. In accordance with coun-

sel’s suggestion, the undersigned entered an Order on April 10,

1989 incorporating this phased approach leading to dispositive

motions on medical causation and liability.

14. Specific dates for the various steps outlined above

were discussed at the March 28, 1989, hearing and agreed to by

plaintiffs’ counsel and Litton’s counsel. The agreed-to dates

were incorporated in the April 10, 1989, Order as follows:

plaintiffs’ were allowed until May 15, 1989, to identify their

expert witnesses and the substance of the facts and opinions to

which such experts were expected to testify, with their deposi-

tions to be completed by June 15, 1989; Litton’s experts in turn

were to be identified by June 30, 1989, and deposed by July 31,

1989; dispositive motions were required to be filed not later than

July 31, 1989.

15. In addition to setting forth the schedule for pretrial

proceedings in a “phased” approach as suggested by plaintiffs’

counsel, the April 10, 1989, Order granted the following two

motions to compel discovery filed by Litton: Litton’s Motion

to Compel Production of Documents and Litton’s Motion to

Compel Attendance of plaintiffs at their own depositions. Pur-

suant to Litton’s motion to compel production, the undersigned

53a

ordered plaintiffs to provide to Litton by April 15, 1989, copies

of all of their medical records.

16. Notwithstanding plaintiffs’ request at the March 28,

1989, hearing for a phased approach to pretrial proceedings and

their agreement on the specific dates incorporated into the April

10, 1989, Order, plaintiffs filed objections to the April 10, 1989,

Order on April 12, 1989. First, plaintiffs sought an extension

of the April 15, 1989, deadline for producing their medical

records to Litton. Second, plaintiffs sought a stay of discovery

deadlines that they had agreed to at the March 28, 1989, hearing

for identification of their expert witnesses and provision of such

experts’ anticipated opinions. In particular, plaintiffs sought a

90-day extension of these deadlines and an 80-day extension on

the subsequent dates relating to filing of dispositive motions. In

seeking such extensions, plaintiffs admitted that “(t]o recover

damages for their illnesses, [plaintiffs] must demonstrate that

there is a connection between the illnesses that plaintiffs have

suffered and their exposure to the chemicals in their water.”

Mem. in Supp. of Plaintiffs’ Objections to Orders of Magistate

at 4-5.

17. On May 15, 1989, plaintiffs filed with the court a

motion for a temporary stay of the discovery deadlines in the

April 10, 1989, Order.

18. On May 15, 1989, plaintiffs submitted a Nomination

of Expert Witnesses. Among other individuals identified, plain-

tiffs named Gerald K. Moore, a hydrogeologist, to testify that

the plant was the likely source of chemicals in plaintiffs’ wells.

In addition, plaintiffs stated that Mr. Moore would testify that

the chemicals “likely reached plaintiffs’ wells several years

before they were first analyzed for in late 1986 and at concen-

trations higher than those first determined in late 1986.” In

addition, plaintiffs named three expert witnesses on the issue of

medical causation, Drs. Feldman, Broughton, and Marcus. Dr.

Robert Feldman, M.D., a neurologist, was described as having

54a

a “preliminary” opinion that unnamed plaintiffs’ alleged neuro-

logical symptoms were likely to have been caused by exposure

to the chemicals at issue. Dr. Allan Broughton, M.D., was

described as believing that exposure to the chemicals at issue

can cause “a form of autoimmune disease.” Dr. William Mar-

cus, Ph.D., was described as having a “preliminary” opinion that

“certain symptoms and conditions suffered by certain plaintiffs

have been likely caused by their exposure” to the chemicals at

issue.

19. OnMay 16, 1989, plaintiffs filed with the undersigned

a Motion for Reconsideration of Magistrate’s Orders, in which

they reiterated the request for extension of deadlines that plain-

tiffs had previously made directly to the Court, i.e., a request for

a 90-day extension on the deadline for identifying expert wit-

nesses and a request for an extension, until June 15, 1989, of the

deadline for providing copies of plaintiffs’ medical records.

Plaintiffs alleged, inter alia, “delays” in obtaining medical

records from plaintiffs’ medical treaters and alleged that it was

“physically impossible” for them to conduct necessary steps to

comply with the deadlines set forth in the April 10, 1989, Order.

20. On May 25, 1989, the undersigned held a pretrial

hearing to rule, inter alia, on plaintiffs’ motion for revision of

the April 10, 1989, Order. During the hearing, the undersigned

warned plaintiffs: “[I]f you’ve got good evidence of causation,

proceed with [the case]. But if you haven’t, drop it.” Transcript

of May 25, 1989, Hearing at 13-14.

21. From the bench on May 25, 1989, and in its corre-

sponding Order of June 7, 1989, the undersigned ruled as

follows: that the April 10, 1989, Order had correctly incorpo-

rated the agreements made by plaintiffs’ counsel at the March

28, 1989, hearing and that plaintiffs’ attempt to appeal the April

10, 1989, Order had caused disorder in that the appropriate

remedy, if any, was to seek reconsideration from the under-

signed. Nonetheless, the undersigned granted an extension to

55a

plaintiffs until June 30, 1989, to submit copies of their medical

records to Litton. In addition, the undersigned granted plain-

tiffs’ motion to revise discovery deadlines, granting them addi-

tional time until June 1, 1989, to identify new expert witnesses

and until June 30, 1989, to set forth the facts and opinions to

which such experts were prepared to testify. The undersigned

correspondingly extended until September 30, 1989, the date for

filing of dispositive motions. In addition, the undersigned

granted Litton’s renewed motion to compel production of docu-

ments relating to three distinct categories of documents that

plaintiffs had failed to produce: insurance records, income tax

returns, and files they kept concerning the chemicals at issue.

22. On June 1, 1989, plaintiffs identified, inter alia, Eric

Engum, Ph.D., a psychologist, as an additional expert witness

to testify concerning “medical causation.”

23. On June 30, 1989, plaintiffs submitted a Supplemen-

tal Nomination of Expert Witnesses. Mr. Moore, the hydro-

geologist, was described as having the opinion that chemicals

reached what has been described as the Carroll Well within one

year after that well began pumping in 1969. The Supplemental

Nomination also attached, inter alia, (1) reports prepared by Dr.

Broughton concerning so-called T-lymphocytes and auto-anti-

bodies allegedly found in the blood of certain plaintiffs, (2)

reports prepared by Dr. Engum concerning three plaintiffs

(Martha Carroll, Debbie Chambers, and Fred Allen Chambers),

and (3) draft reports prepared by Dr. Feldman concerning three

plaintiffs (Barbara Messer, Ancy Simonds, and James Carroll).

The Supplemental Nomination noted that Dr. Feldman could not

provide medical opinions to a reasonable degree of medical cer-

tainty without reviewing the results of certain “blink reflex” tests

performed by Dr. Berta Bergia, another neurologist, and asserted

that Dr. Feldman had not yet had time to make such review.

24. On July 12, 1989, plaintiffs filed a motion for another

extension of time within which plaintiffs’ experts would express

56a

opinions on medical causation as to specific plaintiffs. In the

alternative, plaintiffs sought voluntary dismissal without preju-

dice under Federal Rule of Civil Procedure 41(a). At the time,

depositions of plaintiffs’ causation experts had been scheduled

for later in July 1989. As grounds for the requested relief,

plaintiffs cited alleged “breakdown in document controls” in

their office relating to plaintiffs’ medical records. Plaintiffs

alleged that their experts were “not able to express a final

opinion [on medical causation] as to each plaintiff because of a

lack of information as to each and every plaintiff.” Memoran-

dum in Support of Plaintiffs’ Motion to Extend the Time for

Plaintiffs’ Medical Experts to Express Opinions on Medical

Causation as to Specific Plaintiffs or in the Alternative for

Dismissal Under Rule 41(a). Plaintiffs did not specify any

particular plaintiff as to whom their experts on medical causa-

tion were able to express opinions to a reasonable degree of

medical certainty, nor did plaintiffs specify the particular plain-

tiffs whose claims should have been dismissed voluntarily with-

out prejudice.

25. Litton opposed plaintiffs’ motion for further exten-

sions of time or, in the alternative, for dismissal without preju-

dice. In documents filed subsequent to the deposition of

plaintiffs’ expert witnesses on medical causation, Litton con-

tended that none of plaintiffs’ named medical experts had been

able to express any opinion, to a reasonable degree of medical

certainty, that any of plaintiffs’ alleged health complaints had

been caused by plaintiffs’ alleged exposure to TCE or the other

chemicals in issue.

26. In their reply brief filed in support of their motion for

an extension of time or, alternatively, dismissal without preju-

dice, plaintiffs admitted: “It is apparent that in several respects

the plaintiffs’ technical proofs of medical causation have not

been met ‘to a reasonable degree of medical certainty’. . . .”

57a

Reply Brief at 2. Plaintiffs accordingly requested voluntary

dismissal without prejudice as their preferred relief.

27. On August 22, 1989, pursuant to motion, the Court

involuntarily dismissed the claims of two plaintiffs, Lucille and

Crystal Leatherwood, without prejudice. These plaintiffs could

not be found by plaintiffs’ counsel and could not respond to any

discovery request.

28. On September 6, 1989, Litton filed a motion for

summary judgment concerning three plaintiffs: Joe, Edna, and

Terry Conley. In support of the motion, Litton argued that there

was no evidence that the Conleys had been exposed to any of

the chemicals at issue in the case or that any such chemicals

could have migrated from the plant to their well. Litton further

argued that plaintiffs’ hydrogeologist, Mr. Moore, had admitted

at his deposition that there were no analytical results showing

the presence of any chemicals in the Conleys’ water. Plaintiffs

did not oppose the entry of summary judgment on Litton’s

behalf with respect to the Conleys. Accordingly, on October 12,

1989, the undersigned issued a Memorandum and Recommen-

dation that the Conleys’ claims be dismissed with prejudice

pursuant to Litton’s motion for summary judgment. In the

October 12, 1989, Memorandum and Recommendation, the

undersigned noted that, inter alia, the following elements had

to be shown by a plaintiff seeking damages or recovery as a

result of alleged exposure to chemicals from groundwater:

(1) release by defendant of complained of chemicals

into the environment; (2) chemical migration into the

groundwater and further migration of groundwater in

the Conleys’ well; (3) ingestion of these chemicals by

the Conleys; (4) injury; and (5) that the ingested

chemicals were the cause of the injuries. -

On December 5, 1989, the district court entered a Memorandum

Opinion and Order concluding that the undersigned’ s “proposed

findings of fact are supported by the record and that the proposed

58a

conclusions of law are consistent with current case law.” Ac-

cordingly, the district court ordered, inter alia, that the Conleys’

claims be dismissed with prejudice.

29. On September 27, 1989, the undersigned held a hear-

ing to resolve, inter alia, plaintiffs’ motion for an indefinite

extension of time within which their experts could provide

adequate testimony on medical causation or, in the alternative,

dismissal without prejudice, which motion was opposed by

Litton. At the hearing, plaintiffs’ counsel Donna K. Holt admit-

ted that plaintiffs had done virtually nothing to prepare their case

before it was filed. Transcript of September 27, 1989, Hearing

at 21. Ms. Holt advised the undersigned, however, that the

reason for plaintiffs’ difficulty in obtaining medical causation

opinions had to do with problems in obtaining, distributing, and

reviewing copies of plaintiffs’ medical records. Id. at 2, 20.

Plaintiffs’ counsel specifically disavowed that plaintiffs were

searching or “fishing” for new experts on medical causation. Jd.

at 8, 16. The undersigned granted plaintiffs another extension

of the date by which expert opinions could be submitted, i.e.,

until November 30, 1989. In granting their request and extend-

ing the deadline five months, the undersigned admonished

plaintiffs’ counsel that this extension would be the last one given

to plaintiffs. Jd. at 22.

30. Inits October 12, 1989, Order, the undersigned found,

as follows:

Plaintiffs are advised that this third extension will be

their final extension. Plaintiffs have admitted in court

that before this matter was filed the appropriate pre-

filing research had not been conducted.

October 12, 1989, Order, at2. The undersigned further warned:

[P]laintiffs’ counsel is cautioned again that if they do

not have the personnel to give this matter the attention

these clients deserve, then it’s time to retain additional

59a

assistance. Plaintiffs’ case has been dropped like a

foundling at the courthouse door, but this court has

neither the resources nor the inclination to foster the

progeny of counsel’s imprudent acts.

Id. at 3.

31. As a result of the extension, the date for submission

of dispositive motions was changed from September 30, 1989,

to March 15, 1990. Litton had prepared dispositive motions to

be filed on September 30, 1989, and as a result of the extension,

it was put to additional costs.

32. At the September 27, 1989, hearing, the undersigned

again advised plaintiffs’ counsel to drop the claims if they were

not valid. “If they’re not valid claims, they ought to be dis-

missed.” Transcript of September 27, 1989, Hearing at 9.

33. In addition, on September 27, 1989, the undersigned

determined to recommend to the district court that plaintiffs’

alternative motion for voluntary dismissal without prejudice be

denied because Litton would have been unduly injured by such

action. In its October 12, 1989, Memorandum and Recommen-

dation, the undersigned concluded that plaintiffs had “con-

ducted little, if any, prefiling discovery as required by Rule 11,

Federal Rules of Civil Procedure,” that “plaintiffs have caused

defendant to go to great expense to defend itself from what is

apparently a claim that has not been properly developed,” and

that plaintiffs had “prematurely” placed a substantial burden on

the judicial process by their conduct. October 12, 1989, Memo-

randum and Recommendation at 5-6. Plaintiffs filed objections

to the recommendation.

34. In its December 5, 1989, Memorandum of Opinion

and Order, the district court, upon de novo review of the record,

considered and rejected plaintiffs’ objections to the recommen-

dation. The court found that “the proposed findings of fact are

supported by the record and that the proposed conclusions of

60a

law are consistent with current case law.” December 5, 1989,

Memorandum of Opinion and Order at 2.

35. On November 30, 1989--the extended deadline for

naming expert witnesses on medical causation that the under-

signed had advised plaintiffs would be their last--plaintiffs filed

another nomination which named two new expert witnesses, Dr.

Hugh Spencer and Dr. George Rodgers. At the same time,

plaintiffs filed another motion for an extension of time and

renewed their motion for voluntarily dismissal without preju-

dice. Again, plaintiffs admitted in their papers that there was a

“technical failure of proof at this time for some portion of the

injuries alleged by some of the plaintiffs,” Memorandum in

Support of Plaintiffs’ Motion for Extension of Time or in the

Alternative Renewed Motion for Dismissal Under Rule 42(a)

[sic], at 3. Plaintiffs did not specify particular plaintiffs or

particular injuries as to which there was sufficient evidence of

medical causation to withstand a dispositive motion.

36. In attempting to explain their need for additional time

to develop sufficient evidence, plaintiffs conceded that they had

“failed to appreciate the nature and extent of the information on

exposure needed by the medical experts before they could reach

final opinions on medical causation,” id. at 6, and that “the

medical experts need to know when the exposure began and

ended.” Plaintiffs also conceded that the fact that chemicals had

been found in plaintiffs’ wells in 1987 and the alleged fact that

Litton had stopped discharging TCE into the ground at the plant

in 1974 were “not sufficient data for a medical expert to assess

and distinguish which conditions and symptoms of a particular

plaintiff are most likely the result of exposure to defendant's

chemicals or from some other cause.” Jd. at 6-7. Plaintiffs

referred to their newly named expert, Dr. Spencer, as the alleged

source of the exposure information needed by plaintiffs’ medical

causation experts. See Finding of Fact 37 below. Plaintiffs

contended that Dr. Spencer needed additional time to review

\

6la

additional test results and study chemicals other than TCE which

had been found in plaintiffs’ wells. Jd. at 7.

37. In addition, plaintiffs contended that additional “blink

reflex” tests were necessary in order for Dr. Feldman, plaintiffs’

neurologist, to form “final opinions” on plaintiffs. Motion for

Extension of Time or in the Alternative Renewed Motion for

Dismissal Under Rule 42(a) [sic], at 2. Plaintiffs’ counsel had

previously advised the undersigned, at the September 27, 1989,

hearing, that the initial series of blink reflex tests run by Dr.

Bergia had not been done properly, according to Dr. Feldman;

that Dr. Feldman did not consider the tests reliable; and that Dr.

Bergia had been “confused” and “did not follow protocol.” As

a result of these failures, Ms. Holt advised the undersigned that

Dr. Feldman could not provide “opinions to a reasonable degree

of medical certainty on any individual plaintiff.” Transcript of

September 27, 1989, Hearing at 2.

38. As noted above, plaintiffs on November 30, 1989,

submitted a revised nomination of expert witnesses naming,

inter alia, Dr. Spencer as an expert who could testify concerning

prior levels of chemicals in plaintiffs’ wells. The nomination

included a report from Dr. Spencer in which he estimated that

the Carroll Well (otherwise referred to in this litigation as the

“Old Green Well”) contained as much as 27,591 parts per billion

(“ppb”) TCE in 1970. As described in the report, Dr. Spencer

reached such conclusions by deriving an estimated “TCE half-

life,” i.e., a period of time in which TCE in an aquifer supposedly

degrades to one half of its original concentration, and then

back-calculating from known or estimated concentrations. The

27,591 ppb estimate was premised upon an assumed TCE

half-life of 1.5 years and an estimated (not measured) concen-

tration in the Carroll Well of 108 ppb in 1986. Exhibit 4 to

Plaintiffs’ November 30, 1989, Nomination of Expert Witnesses

(“Spencer Report”), at 4. Dr. Spencer also estimated prior

alleged concentrations of TCE assuming a TCE half-life of 2.0

62a

years and a lower starting concentration. In these alternative

calculations, the highest TCE concentrations in the Carroll Well

were given as 1,728 ppb. In each scenario painted by Dr.

Spencer, he assumed that TCE concentrations declined regularly

and steadily until 1987, when TCE was first measured in the

Carroll Well.

39. The November 30, 1989, nomination also reiterated

that the blink reflex tests previously performed on plaintiffs

were “of limited usefulness because of questions surrounding

the validity of the results.” Plaintiffs’ November 30, 1989,

Nomination of Expert Witnesses, at 3.

40. In support of plaintiffs’ November 30, 1989, motion

for further extension of the discovery schedule and renewed

motion for dismissal without prejudice, plaintiffs’ counsel,

Donna K. Holt, submitted an affidavit. Among other things, Ms.

Holt admitted in her affidavit that, as of the July 1989 deposition

of Dr. Feldman, in which he testified that he was unable at that

time to provide opinions on medical causation to a reasonable

degree of medical certainty, Ms. Holt was aware of plaintiffs’

need to find new expert witnesses on the issue of exposure and

that plaintiffs had been looking for such an expert since August

1989. Affidavit of Donna K. Holt, paras. 5, 7.

41. Litton again opposed plaintiffs’ requested extension

of time, arguing among other things that plaintiffs’ attempted

addition of two new expert witnesses was neither contemplated

nor approved by the undersigned in its October 12, 1989, Order

and had never been mentioned as a reason for obtaining addi-

tional time. Litton further argued that any further extensions

would be prejudicial and wasteful.

42. Hearing on plaintiffs’ motion for additional time or

dismissal occurred on December 18, 1989. Plaintiffs’ counsel,

Donna Holt, conceded that she had known, at the time of the

September 27, 1989, hearing, that “Dr. Moore’s testimony [on

prior alleged levels of chemicals in plaintiffs’ wells] was not

63a

sufficient. I figured that out during the medical depositions.”

Transcript of December 18, 1989, Hearing at 21. In addition,

plaintiffs’ counsel admitted that the blink reflex data submitted

by Dr. Bergia was an inadequate basis upon which Dr. Feldman

could base an opinion on medical causation. Jd. at 26 (“they

have demonstrated in their depositions of her that she did not

have the qualifications that Dr. Feldman required for someon

to do the tests”), 42 (“[i]t was a mechanical technician duty that

was botched . . . [aJnd now Feldman cannot rely on the results”).

43. Again, the undersigned warned plaintiffs’ counsel at

the December 18, 1989, hearing that “if [plaintiffs’] claims are

not valid, they ought to be dismissed.” Jd. at 23. The under-

signed also advised the parties that Litton would be entitled to

file a motion pursuant to Rule 11, Federal Rules of Civil

Procedure, in the event that plaintiffs’ claims were dismissed.

Id. at 34.

44. Even though Litton would be put to severe expense

by allowing yet another continuance to plaintiffs—a continuance

which included the naming of new expert witnesses not contem-

plated by the undersigned’s prior order--the undersigned agreed

to plaintiffs’ motion for continuance and agreed to allow plain-

tiffs to name the new experts, including Dr. Spencer. In so

doing, the undersigned acted out of concern for plaintiffs’

interests, not wanting to penalize plaintiffs for the deficiencies

of their counsel. Out of that concern, the undersigned deter-

mined to grant plaintiffs’ counsel one more extension of time in

which to attempt to put together a case that could survive

summary judgment.

45. The undersigned accordingly entered an Order on

December 26, 1989. Among other things, the December 26,

1989, Order recounted the procedural history of the case: how

the undersigned had agreed to plaintiffs’ suggestion to try this

case in “phases” and had granted numerous extensions, and how

plaintiffs had been unable to fulfill their promises to the under-

64a

signed and had, indeed, demonstrated a “lack of candor in the

status of nominated experts.” December 26, 1989, Order at 3.

The undersigned observed that plaintiffs:

have asked for what will be the fourth enlargement of

discovery, not heeded the court’s instructions, not

complied with the court’s orders, and have been less

than candid with the court.

Id. at 4. The undersigned also observed that “[tJhe discovery

burdens of which plaintiffs’ counsel complains are of their own

creation through failure to prepare properly the extensive claims

presented to this court.” Nonetheless, the undersigned allowed

plaintiffs until January 30, 1990, to revise or supplement their

experts’ opinions. The date for filing dispositive motions was

again moved, from March 15, 1990, to May 15, 1990.

46. In addition, the undersigned recommended to the

district court that, at the conclusion of the litigation, it impose

sanctions against plaintiffs’ counsel in the amount of Litton’s

costs in deposing experts previously named by plaintiffs and

later withdrawn when plaintiffs named new expert witnesses.

Such experts include, but are not limited to, Dr. Berta Bergia

and Dr. William Marcus.

47. Finally, the undersigned declined to rule on plaintiffs’

renewed motion for dismissal without prejudice, concluding that

the district court had already ruled on plaintiffs’ prior motion

and that the motion for renewal should be pursued directly

before the district court.

48. On April 30, 1990, the district court issued a Memo-

randum of Opinion denying plaintiffs’ renewed motion for

dismissal without prejudice. The district court concluded, inter

alia, that Litton had gone to “great effort and expense in prepar-

ing itself for trial,” April 30, 1990 Memorandum of Opinion at

5; that plaintiffs had received five formal extensions of discov-

ery over Litton’s objections, id. at 6; that Litton justifiably feared

* ee ee ae

65a

that a renewal of plaintiffs’ complaint at a later time would

require previously taken depositions to be updated at substantial

expense, id. at 7; that such renewal would require substantial

supplementation of Litton’s own expert opinions at excessive

expense, id.; that “Plaintiffs are having difficulty in finding

evidence linking Defendant’s conduct to Plaintiffs’ ills,” id. at

8; that “[e]xhaustive preparations have been made for trial re

[and that] this lawsuit [has] reached an advanced Stage of

proceedings,” id. at 8-9; and that:

Based upon the record developed thus far, diligence

on the part of the Plaintiffs has been lacking; delay

has become a custom. Plaintiffs have asked for and

received five extensions of discovery in order to un-

cover critical medical evidence including expert opin-

ion. One would have expected such information to

exist in accessible and identifiable form prior to filing

of the complaint. Despite the fact that each request

for an extension has been granted, the Plaintiffs still

seek voluntarily dismissal of their claims, apparently

because of counsel’s inability to meet the discovery

deadlines as extended.

Id. at 9. In addition, the district court found that plaintiffs had

lacked diligence in bringing its evidentiary problems before the

court, id, at 11, and concluded that, since plaintiffs’ only reason

for requesting dismissal without prejudice was their “stated need

to locate the medical and expert testimony required to prosecute

the suit,” the explanation was insufficient “[ijn light of the

generous discovery extensions Plaintiffs already have re-

ceived.” Id. at 11-12. The district court also concluded that no

conditions could be imposed upon plaintiffs that would obviate

the harm to Litton in the event that the court allowed plaintiffs

voluntary dismissal without prejudice.

49. On May 11, 1990, plaintiffs filed a motion for volun-

tary dismissal of plaintiffs Sandra Hancock and her minor son,

66a

Chuck Hancock. As grounds for this motion, plaintiffs admitted

that “plaintiffs’ medical experts have concluded that medical

causation cannot be established at this time between these

plaintiffs’ complaints and their exposure to the contaminated

water at issue in this case.” Plaintiffs’ Motion for Voluntary

Dismissal of Plaintiffs Sandra Hancock and Chuck Hancock, A

Minor, at 1-2. In addition, plaintiffs requested that the claims

of Chuck Hancock be dismissed without prejudice. As the

asserted basis for this motion to dismiss, plaintiffs explained that

the Hancocks had been exposed only to chemicals allegedly

emanating from what is known as the Kilpatrick Well, that Dr.

Spencer had provided calculations concerning the alleged level

of TCE to which the Hancocks had been exposed, and that Dr.

Rodgers, having been given such information, was unable to

testify to a reasonable degree of medical certainty that any

symptoms alleged by the Hancocks had been caused by such

alleged exposure. Memorandum in Support of Motion for Vol-

untary Dismissal of Plaintiffs Sandra Hancock and Chuck Han-

cock, A Minor, at 2.

50. Litton filed a memorandum in opposition to plaintiffs’

motion to voluntarily dismiss the Hancocks’ claims, asserting

that such claims should be addressed within the context of the

summary judgment motions that had been filed on May 15,

1990, and, in any event, that any dismissal of claims should be

with prejudice and with imposition of sanctions under Rules 11

and 41(A)(2), Federal Rules of Civil Procedure; 28, United

States Code, Section 1927, and the Court’s inherent authority.

51. On May 15, 1990, Litton filed the above-listed mo-

tions for summary judgment and its motion to preclude plain-

tiffs’ evidence of exposure, as required by the revised pretrial

order. On the same date, plaintiffs filed a motion for partial

summary judgment as to elements of two of their claims. As

required by the pretrial order, Litton submitted its opposition to

plaintiffs’ motion by May 30, 1990. Plaintiffs, however, re-

67a

quested an extension of time within which to respond to Litton’s

motions until July 16, 1990. The undersigned granted plaintiffs

an extension longer than the one they had requested and allowed

plaintiffs’ oppositions to be filed by July 30, 1990.

52. On June 13, 1990, the undersigned conducted yet

another hearing in this case. At this hearing, the undersigned

determined inter alia, to defer consideration of the Hancocks’

motion for voluntary dismissal until after consideration of the

pending summary judgment motions. It likewise determined to

defer consideration of two other pending motions—Piaintiffs’

Motion to Rejoin Litton Industries, Inc. as Party Defendant and

Litton’s Motion to Deem Admitted Requests for Admission.

The undersigned also asked counsel to determine what method

of arguing the pending summary judgment motions made most

sense.

August 30, 1990. In addition, the undersigned scheduled argu-

ment on August 30, 1990, for plaintiffs’ Motion to Strike and

Litton’s summary judgment motion on medical Causation. Ar-

guments on the other summary judgment motions were sched-

uled for September 17 and October 1, 1990.

54. On the morning of August 30, 1990, the parties ap-

peared before the undersigned and argued the Motion to Ex-

clude. The undersigned determined to cancel the afternoon’s

scheduled argument of the Motion on Causation, however, in

deference to the asserted ill health of one of plaintiffs’ counsel.

At that time, the undersigned invited the parties’ views on the

appropriate procedural disposition of the Motion on Causation

68a

and the Motion to Strike. After discussion, the parties agreed

that these motions could and should be submitted on the papers

without need for oral argument. The undersigned so ordered,

noting that, as to the Motion on Causation, the record was

complete and the issues fully and well briefed.

55. In accordance with such order, the undersigned will

issue a recommendation as to the Motion to Exclude and the

Motion on Causation and address the remaining motions simul-

taneously. Accordingly, in the Order of September 5, 1990, the

undersigned canceled the hearings previously set for September

17 and October 1, 1990, with provision for rescheduling argu-

ment in the event that any issues remain after the Memorandum

and Recommendation filed simultaneously herewith is disposed

of by the district court.

B. Findings on the Motion to Exclude

56. Plaintiffs have offered two witnesses who, together,

propose to establish the levels of TCE to which plaintiffs were

allegedly exposed prior to 1987. They are Gerald Moore, a

hydrogeologist, and Dr. Hugh Spencer, described by plaintiffs

as a “biochemist.”

57. With the exception of the Hancocks, plaintiffs claim

that they were exposed to TCE that allegedly migrated from

Litton’s plant, through groundwater, to wells located generally

north of the plant. A stream, Slow Creek, divides Litton’s

property from that of the plaintiffs. Plaintiffs’ case against

Litton requires a demonstration that Litton’s chemicals migrated

underneath this stream. Although Litton contests that its plant

was the source of chemicals found in plaintiffs’ wells, its pend-

ing motions do not require resolution of this dispute.

58. Mr. Moore’s opinions were presented in a report that

he authored entitled Hydrogeology and Groundwater Pollution

in the Peachtree Community Area, Cherokee County North

Carolina (July 17, 1989) (“Moore Report”). According to the

ee

ee

69a

report and Mr. Moore’s testimony, groundwater normally dis-

charges into Slow Creek from both sides of the creek and thus

normally would not carry chemicals under Slow Creek from the

plant to plaintiffs’ wells. Moore Report at 3, 5; see also Moore

Dep. (July 17, 1989) at 149-50 (groundwater would not flow

uphill from Slow Creek to plaintiffs’ wells based upon condi-

tions observed by Mr. Moore in 1989). Mr. Moore believes,

though, that during dry periods, when the level of water in

plaintiffs’ wells was allegedly very low, the wells would have

drawn groundwater from the Clifton site under Slow Creek.

Moore Report at 1c, 5; Moore Dep. (July 17, 1989) at 151. The

Moore Report does not provide any opinion to the effect that

chemicals from the plant arrived at plaintiffs’ wells in 1970 or

at any other particular time prior to 1987.

59. Mr. Moore has not performed any tests nor made any

calculations to determine when, if ever, low water conditions

occurred in plaintiffs’ wells. Moore Dep. (July 17, 1989) at

154-55.

60. Mr. Moore has not reviewed historical rainfall data.

Moore Dep. (Feb. 8, 1990) at 53, 86, 147-49, 91.

61. In 1989, when Mr. Moore actually measured the water

level in plaintiffs’ wells, he found it to be, not low at all, but

barely below the surface of the ground. In such conditions, he

conceded, water would not flow from the plant site into the

plaintiffs’ wells. Moore Dep. (July 17, 1989) at 149,

62. Mr. Moore cannot say when or how often groundwa-

ter allegedly flowed under Slow Creek from the plant to plain-

tiffs’ wells, id. at 151, 153; Moore Dep. (July 26, 1989) at 143.

63. Mr. Moore admitted in his deposition that he could

not state any opinion as to when in the past chemicals at various

concentrations would have been found in plaintiff s wells:

Q: Have you been asked to provide an opinion

on that?

70a

A: Ihave been told, if I remember correctly that

it would be desirable to determine when the

highest concentrations occurred, yes. I

don’t know how to do that.

Id. at 91. Similarly, Mr. Moore later testified:

Q. ...Doyou have any opinion at all about how

often, since the time the plant was con-

structed, that conditions on the north side of

Slow Creek were sufficient to cause ground-

water to flow under the creek?

A. Idon’t...wedo not have a lot of records on

how often the well went dry or anything like

that.

Q. Do you have any anecdotal evidence about

that the plaintiffs told you how often that --

A. Nothing -- I’m sorry.

Moore Dep. (July 26, 1989) at 143-45.

64. In opposition to the Motion to Exclude, plaintiffs

submitted an Affidavit of Gerald Moore. The Moore Affidavit

asserts in conclusory fashion that chemicals from the plant

arrived at plaintiffs’ wells as early as 1970. No effort was made

in the Moore Affidavit to address any of the specific points made

by Litton that are described in Findings of Fact at paragraphs

58-63 above. Instead, the bulk of the Moore Affidavit addressed

the issue of whether the plant could have been the source of the

chemicals found in 1987. As noted above, Litton has not

contested that the plant is the source of the chemicals for the

purposes of these motions.

65. Plaintiffs also originally designated Mr. Moore to

opine that the concentrations in plaintiffs’ wells were “likely

significantly higher in previous years than those found since

January 1987 when testing was begun.” Plaintiffs’ Supplemen-

Ce ee oe

bea alee

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71a

tal Nomination of Expert Witnesses (June 30, 1989) at 12. In

fact, the Moore Report suggests that, at some unknown time in

the past, the concentration of TCE in the Carroll Well was

approximately 600 ppb.

66. The average measured level of TCE in the Carroll

Well is less than 20 ppb. Group Aff. Submitted In Support of

Litton’s Motions for Summary Judgment (“Group Aff.) at Table

1. (Throughout these Recommended Findings of Fact, the

undersigned will cite or refer to only those portion of Litton’s

supporting affidavits that plaintiffs have not properly challenged

in their oppositions.) Thus, Mr. Moore’s conclusions, as set

forth in the Moore Report, suggest that concentrations of TCE

were roughly 30 times higher than average measured concentra-

tions from 1987 to date.

67. Mr. Moore admitted that “there is not a standard

procedure for the calculation of pollutant concentrations in the

past.” Moore Report at 9.

68. Mr. Moore also admitted that he did not consider

himself an expert in the fate of organic chemicals in the envi-

ronment. Moore Dep. (Feb. 8, 1990) at 164.

69. Mr. Moore admitted that “[t]he chemical analyses of

groundwater from on-site and off-site wells do not show a

decrease in the concentrations of pollutants during the sampling

period (1987-1989).” Moore Report at 9.

70. Plaintiffs introduced Dr. Hugh Spencer in November

1989 as a witness who could supposedly supply what Mr. Moore

could not, i.e., expert opinion testimony concerning alleged

prior concentrations of chemicals in plaintiffs’ wells during

71. Dr. Spencer’s controlling assumption is that it is mean-

ingful to posit an “environmental half-life” for TCE, i.e., to posit

a fixed period of time in which any given concentration of TCE

72a

in the environment degrades to one-half of its original concen-

tration. Dr. Spencer attempted to derive such an “environmental

half-life” for TCE by reviewing the scientific literature, most of

which relates to laboratory, not field, studies. Then, choosing

two half-lives, without giving particular citations for such half-

lives, Dr. Spencer worked backward from measured or assumed

concentrations in the Carroll Well. Letter from Hugh Spencer

to Donna Holt, November 30, 1989 (“Nov. 30 Letter”).

72. As set forth above, Dr. Spencer’s estimates of TCE

concentrations in prior years for the Carroll Well range to 27,000

ppb. This is more than 1,000 times the average measured

concentration of less than 20 ppb.

73. This case is the first time in which Dr. Spencer has

attempted to back-calculate an environmental concentration of

TCE. Spencer Dep. at 1-176-77.

74. Dr. Spencer is not aware of any scientific literature

which describes, let alone validates, a back-calculation of this

type. Id. at 1-180, 2-76-77.

75. Dr. Spencer admitted that it was fair for Litton’s

counsel to characterize his calculations as “speculative.” Jd. at

2-236.

76. Plaintiffs filed an Affidavit of Dr. Hugh Spencer in

opposition to the Motion to Exclude. In the Spencer Affidavit,

Dr. Spencer admitted that his environmental half-life calcula-

tions constitute, at best, a “first approximation when . . . [the

facts concerning alleged degradation of TCE in the environ-

ment] are not understood.” Spencer Aff. at para. 10.

77. Mr. Moore testified that he had never come across the

concept of an “environmental half-life” in the scientific litera-

ture. Moore Dep. (Feb. 8, 1990) at 225.

78. Mr. Moore admitted that he had never in his career as

a hydrogeologist worked with or relied upon anyone who had

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73a

tried to back-calculate environmental concentrations for a 16-

year period. Moore Dep. (Feb. 8, 1990) at 243-44.

79. A difference of about 1,400 percent exists between

the two numbers that Dr. Spencer submitted for the high con-

centrations of TCE alleged to be present in the Carroll Well from

1970-1974.

80. Dr. Spencer admitted that he was unaware of any

methodology to reduce the margin of error in such calculations.

Spencer Dep. at 2-235.

81. In arriving at his opinions concerning an alleged

environmental half-life of TCE, Dr. Spencer has virtually ig-

nored available site data.

82. During his deposition, Dr. Spencer explained how one

could derive an “environmental half-life” of a chemical by

performing a regression analysis on a set of field data containing

at least three different points. Id. at 1-105-07. Having derived

the formula, Dr. Spencer then opined that it would be generally

applicable and that he could have applied his statistical method,

to any well at or around the plant site. Id. at 1-125-26, 1-132-34.

Dr. Spencer admitted that, although he believed that the data

collected from the site were valid, he had not performed any

calculations to determine a particular half-life for the Carroll

Well, or any other plaintiff's well. Jd. at 2-72-73, 2-138.

83. In his deposition, Dr. Spencer was shown actual data

from the Carroll Well (from Fall 1987 through Fall 1989) and

asked to calculate the “half-life” of TCE based on those data.

After he had performed the calculation, Dr. Spencer refused to

testify about the “half-life” he derived. Id. at 3-278. He cun-

ceded, however, that he could not observe any change of TCE

concentrations at the Carroll Well over time, id. at 3-281,

3-284-85, that he thus could not observe a half-life of 1.5 to 2.0

years, id. at 3-285-87, and that he had no explanation for that

discrepancy, id. at 3-288-89. See generally id. at 3-278-89.

74a

84. Dr. Spencer acknowledged in his deposition that an

expert would rather have site-specific numbers for environ-

mental half-lives than numbers derived from the literature. /d.

at 3-224.

85. Dr. Spencer conceded that, in the event site-specific

data yielded a longer half-life than half-lives “derived” from the

literature, the site-specific information would have to be used in

attempting to back-calculate historical levels of chemicals. Id.

at 3-227. Nevertheless, in his Affidavit submitted in opposition

to Litton’s Motion to Exclude, Dr. Spencer continued to ignore,

without explanation, the Carroll Well site data.

86. According to Dr. Spencer, biodegradation is a major

determinant in the environmental fate of chemicals. Dr. Spencer

conceded that biodegradation rates vary from site to site.

Spencer Dep. at 3-173, 3-175. He listed myriad site-specific

factors that have to be taken into account in order to determine

what is actually going on at any particular site. Jd. Dr. Spencer

admitted that he had failed to examine or obtain data concerning

any of these factors, however. Id. at 3-174, 3-179, 3-181.

87. From Dr. Spencer’s calculations for the Carroll Well

itself, the maximum concentration of TCE in that well in 1970—

if any chemicals were there at all--would have been virtually

identical to the average measured concentrations.

88. Dr. Spencer did perform certain calculations with

respect to well IW-1, which is the main industrial well at the

plant and thus supplies the water used in the plant. At the time

he performed the calculations, he was unaware that [W-1 was a

pumping well and was unaware of the interim remedial meas-

ures that Litton has implemented at that well. Jd. at 1-90,

1-92-93, 1-123. Both of these factors would significantly affect

changes in concentration of TCE over time and, according to

Litton’s experts on the fate of chemicals, see Affidavit of Drs.

Cass T. Miller and F. Michael Saunders, University of North

Carolina, Chapel Hill, and Georgia Institute of Technology,

75a

Atlanta (“Miller/Saunders Aff.”), para. 6, invalidate the use that

Dr. Spencer attempted to make of IW-1 data. Plaintiffs did not

take issue with the reasoning offered by Drs. Miller and Saun-

ders. Instead, without explanation, Dr. Spencer simply repeated

in his affidavit his reliance on data from IW-1.

89. Plaintiffs failed to offer any explanation concerning

the admission in Dr. Spencer’s deposition that calculations from

actual data for the Carroll Well contradicted Dr. Spencer’s belief

in an “environmental half-life of TCE” of from 1.5 to 2.0 years.

90. In his opinion letter, Dr. Spencer cited a paper by Dr.

Paul Roberts, Stanford University, concerning a 1983 study of

the fate of chemicals in a specific aquifer near Palo Alto,

California. In his deposition, Dr. Spencer repeatedly cited the

Dr. Roberts’ paper as support for the type of calculations that

Dr. Spencer was purporting to make. Spencer Dep. at 1-56,

2-43, 2-46, 2-49, 2-53, 3-206.

91. In support of its Motion to Exclude, Litton submitted

an Affidavit from Dr. Roberts (“Roberts Aff.”) Having re-

viewed a transcript of Dr. Spencer’s deposition and Dr.

Spencer’s report, Dr. Roberts opined that Dr. Spencer’s “ex-

trapolation approach is imprudent and pione to enormous error.”

Roberts Aff. at para. 1.!

92. Litton’s experts, Drs. Miller and Saunders, testified

by affidavit that “neither the Roberts paper, nor any other peer

reviewed paper supports the notion that a so-called environ-

mental half life can be used to calculate concentrations 17 years

in the past.” Miller/Saunders Aff. at para. 4. They concluded:

Pe Ce

: According to unrebutted affidavit testimony of Litton’s experts, the

Roberts study is not relevant in any event to the Litton site because it was

conducted in a different type of aquifer and because, according to the report

itself, Dr. Roberts was not certain whether the observed decrease in TCE

concentrations was due to biodegradation, adsorption, or dilution. See

Miller/Saunders Aff. at para. 4.

76a

[W]e have reviewed the scientific literature and can

find no reference to the use of such a methodology for

the back-calculation of environmental concentrations,

as Dr. Spencer has attempted. In our experience, we

have never before seen or heard of such a method, and

we find that Dr. Spencer’s methods violate well-es-

tablished precepts of subsurface investigation and

modeling.

Id. at para. 3.

93. In response to the Miller/Saunders affidavit, plaintiffs

contended that half-lives are commonly used in science to

predict the future fate of chemicals. However, neither plaintiffs

nor Dr. Spencer have offered any citation to any report, publish-

ed or unpublished, in which Dr. Spencer’s methodology has ever

been used, approved, or even disucssed for the purpose of

back-calculating concentrations of chemicals in groundwater.

94. Dr. Spencer is a Professor of Chemical Engineering

at the Speed Scientific School of the University of Louisville.

He is not a registered professional engineer. Spencer Dep. at

1-139.

95. Dr. Spencer never took any courses in geology or

hydrogeology. Jd. at 1-136, 1-140, 1-142. He admitted that he

did not consider himself an expert in hydrogeology or in the

modeling of groundwater flow. Id. at 1-219.

96. Dr. Spencer admitted that he received no formal train-

ing concerning the fate of organic chemicals in the environment,

id. at 1-137, 1-139, 1-142-44, and never did any environmental

modeling throughout his academic training, id. at 1-141-42.

97. Dr. Spencer never directed research on the fate of

chemicals in an underground regime, id. at 1-203, or on the fate

of TCE in any milieu, id. Dr. Spencer has never published

anything concerning the movement of contaminants in ground-

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77a

water or the fate of TCE anywhere in the environment. Id. at

1-206.

98. Dr. Spencer admitted at his deposition that he had not

read all of the pertinent articles concerning TCE, but hoped to

do so during the next five or ten years. Id. at 1-67.

99. Dr. Spencer assumed that TCE was in plaintiffs’ wells

in 1970. He is unable to provide expert testimony on that issue,

however. Id. at 3-161. Accordingly, he assumed that Gerald

Moore, plaintiffs’ hydrogeologist, would provide an adequate

basis for that opinion. Id. at 3-162.

100. Both Dr. Spencer and Mr. Moore admitted that ad-

sorption slows the movement of certain chemicals in groundwa-

ter, including TCE, even assuming water from the plant site

reached the plaintiffs’ wells in 1970. See Spencer Dep. at 3-163,

4-148-49 (to estimate hypothetical travel time to plaintiffs’

wells, one would need to know the retardation factor, which is

based on adsorption); Moore Dep. (Feb. 1990) at 133; see also

Spencer Dep. at 1-231 (TCE would be adsorbed); Moore Dep.

(Feb. 1990) at 77 (same).

101. Dr. Spencer admitted that there were circumstances

from which one could reasonably conclude that retardation was

particularly significant near the Clifton plant. Spencer Dep. at

3-209, 4-231-32.

102. Neither Dr. Spencer nor Mr. Moore made any site-

specific measurements to quantify the effect of adsorption.

Spencer Dep. at 4-149; Moore Dep. (Feb. 1990) at 134, 237.

Thus, it is impossible for Dr. Spencer or Mr. Moore to say, to a

reasonable degree of scientific certainty, how long TCE would

have taken to get to the plaintiffs’ wells—if in fact contaminated

water from the plant ever migrated there in defiance of the

hydrogeological barrier of Slow Creek.

78a

C. Findings of Fact on Litton’s Motion on Causation

103. Plaintiffs have been unable to obtain any opinions to

a reasonable degree of medical certainty that the actual meas-

ured concentrations of chemicals in plaintiffs’ wells caused any

of plaintiffs’ alleged health effects.

104. Plaintiffs admitted, without developing new evidence

establishing higher levels of chemicals at specific earlier times,

that their expert witnesses were unable to establish a prima facie

case on medical causation.

105. In opposition to Litton’s Motion on Causation, plain-

tiffs submitted to the Court, inter alia, a Joint Affidavit of their

three experts on medical causation: Drs. Feldman, Broughton,

and Rodgers. The Joint Affidavit, paragraph 26, admits, in part,

that these experts are unable at this time, without reliance on the

opinions of Dr. Spencer, to provide any opinion evidence on

medical causation, to a reasonable degree of medical certainty,

with respect to any plaintiff. Rather, plaintiffs’ experts aver that,

in the event that Dr. Spencer’s conclusions are excluded from

the case, they would need additional time to review the facts

before determining what additional opinions, if any, they might

be prepared to offer.

106. Plaintiffs have no expert evidence at this time, to a

reasonable degree of medical certainty, that TCE at the meas-

ured concentrations in the Carroll Well caused any of plaintiffs’

claimed health effects.

107. Plaintiffs lived, worked, or visited for varying periods

of time near Litton’s plant in Murphy, North Carolina.

108. Inearly 1987, Litton discovered that certain wells near

the plant contained extremely low levels of chlorinated organic

compounds, i.e., levels averaging in the low parts per billion.

As a point of reference, one part per billion (ppb) is the equiva-

lent of one second in 31.7 years. Upon discovery of the presence

46 0 Pade Keine 2h SIP wos Hho

79a

of such chemicals, Litton supplied plaintiffs with bottled water.

Subsequently, Litton installed carbon adsorption filters on plain-

tiffs’ wells.

109. A panel of distinguished experts in toxicology,

epidemiology, immunology, neurology, and internal medicine

jointly submitted an affidavit in support of Litton’s motion for

summary judgment on medical causation (“Group Aff.”). In

addition, Litton submitted a separate affidavit of Dr. Peter

Shields, who is board-certified in the fields of internal medicine

and oncology and who has substantial experience in the area of

occupational medicine (“Shields Aff.”) The undersigned will

cite only those portions of the Group Affidavit and Shields

Affidavit that were not contradicted by plaintiffs’ experts in the

affidavits submitted in opposition to Litton’s motions for sum-

mary judgment.

110. Plaintiffs have been examined by numerous physi-

cians, including more than 120 treating physicians (some of

whom were consulted specifically as a result of plaintiffs’

alleged exposure) and independent medical examiners pursuant

to court order. Not one of the examining physicians has been

able to ascribe any of plaintiffs’ physical complaints to the

alleged exposure to chemicals.

111. Dr. Kendall Green, a toxicologist and board-certified

internist at Duke University Medical Center who has studied the

alleged toxic effects of TCE, was visited in April 1987 by Fred

Allen Chambers and Barbara Messer because of their alleged

exposures. After having thoroughly examined and tested them,

Dr. Green concluded, with respect to both, that “I am unable to

relate any of [their] complaints and symptoms to a possible

intoxication with trichloroethylene . . ..” Dr. Green’s Reports

(Att. 73). See Deposition of Dr. Kendall Green, M.D., Ph.D.

(Att. 61) at 6, 12, 17-18, 22-23, 27-33.

112. Plaintiffs’ experts concede that risk is not attendant

upon every measurable dose; at some sufficiently low level of

80a

exposure or dose, virtually all compounds carry no measurable

or predicted risk of noncarcinogenic effects. The “break-point”

or “threshold” is that nonzero dose at which the risk of an

adverse response cannot be distinguished from zero. As a

qualitative and quantitative matter, essentially all chemicals

have been shown or are considered to have thresholds for

noncancer health effects. One cannot consider even the poten-

tial that exposure to a chemical caused a particular result without

comparing the actual dosage to the known threshold levels for

the various chemicals.

113. The types of physical complaints that plaintiffs’ ex-

perts attribute to plaintiffs’ alleged exposure to chemicals in-

cludes headaches, dizziness, tingling sensations, numbness,

anxiety, forgetfulness, back, leg, and arm pains, among others.

114. There are many studies of occupational (i.e., substan-

tially higher) exposures to some of these chemicals, TCE in

particular, which fail to show adverse health effects. The United

States Occupational Safety and Health Administration

(“OSHA”) has set a permissible daily exposure limit (“PEL”) of

50 ppm and a short-term exposure limit of 200 ppm. Group Aff.

at paras. 23, 45. Even if the alleged historical concentrations

assumed by Dr. Spencer are considered, TCE air concentrations

in plaintiffs’ homes from 1970 to 1974 would still have been

“18-fold lower than those considered safe by OSHA.” Group

Aff. at para. 23.

115. None of plaintiffs’ asserted injuries are uniquely as-

sociated with chemical exposures at any level. Plaintiffs attrib-

ute all manner of ordinary, everyday complaints to their

exposure to TCE, including headaches, fatigue, nausea, and so

forth. Plaintiffs’ experts do not dispute that there are innumer-

able causes of these frequent human problems.

116. Many of plaintiffs’ alleged symptoms appear to have

worsened since 1987, despite the fact that exposure to the

chemicals substantially stopped when they were discovered.

8la

Thus, some plaintiffs who visited neurologist Dr. Jack Scariano

in 1989 complained about facial numbness, a nonspecific com-

plaint that is found in a variety of ailments. Shields Aff. at para.

11. Plaintiffs had generally never complained about such facial

numbness prior to their visits to Dr. Scariano. Similarly, in a

medical evaluation sheet dated February 18, 1987, plaintiff

Keith Scott Gentle indicated that he did not have problems with

dizziness, frequent headaches, or shortness of breath. On an

April 21, 1988, questionnaire, answered when this litigation was

contemplated, he did complain of shortness of breath, but still

declined complaint of dizziness or headaches. On a December

17, 1988, questionnaire, answered after this lawsuit had begun,

he complained for the first time about dizziness and headaches.

See Medical Evaluation Sheet for Feb. 18, 1987 (Attachment 50

to Litton’s Appendix in Support of Motion on Causation); Keith

Scott Gentle’s Neurological Questionnaires (Attachment 53.b).

117. A number of plaintiffs cannot even be said to be

suffering from illnesses or injuries, let alone illnesses or injuries

related to exposure to chemicals.

show that all of the children are normal and healthy. The most

pertinent observations are set forth below:

Jonathan Messer -- This patient’s health is excellent

F . . This patient has done exceptionally well . . . He is

in the 93rd percentile for height [and] the 75th percen-

tile for weight. [He] shows no evidence of any neu-

rological impairment . . . . Urinalysis . . . normal .. .

Blood liver profile studies . .. WNL {within normal

limits] for a child.

82a

Justin Gaddis -- [His general health has been good

. . . This child developed all milestones on time and

toilet trained at two years . . . his grades were average

or a little above in the range of “A” & “B” . . . [t]his

patient is an oriented, well-developed, well-nour-

ished, eight year old white male . . . mature for his

stated age . . . essentially a normal blood count... .

Walter Derrick Gaddis -- [T]}his young man’s general

health has been good... .. All developmental pa-

rameters have been met on time to date. He walked

at 8 1/2 months which is actually early . . . he had the

usual amount of recurrent ear and respiratory tract

congestion problems . . . he has had no major injury

or illness . . . 75th percentile [height] [and] 78th per-

centile for weight .... Laboratory studies ... WNL

Jennifer Wimpey -- This patient’s general health is

excellent .... This patient’s development has been

right on schedule with all parameters of development

within the normal limits . ... Normal four-year old

white female patient, who is slightly above weight,

but is in good health otherwise. Urinalysis . . . within

normal range .... Blood liver profile studies . . .

within normal range .... 3 atypical lymphs [which

is] a slightly elevated count but not significant clini-

cally.

Rusty Chambers -- In general, this patient’s health is

good . . . he made very high grades in the first year [of

school] . . . has no learning disorders and . . . has done

very well. .. He is fully ambulatory. He interacts with

the examiner, and his mother, appropriately. Normal

seven year old white male patient, in good health... .

Laboratory studies ... WNL.

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83a

Charles Hancock, Jr. -- This patient’s general health

is good .... His developmental history reveals that

he met most of the early developmental milestones on

time. The patient has been seen in the last year for a

football physical . . . no major problems .. .. [He is]

95th percentile for height, and he is one standard

deviation above the 95th percentile for weight ....

Normal 11 1/2 year old white male who is above

average in stature. Laboratory studies... WNL....

119. Similarly, plaintiffs’ expert, Dr. George Rodgers,

concluded that none of the children had any symptoms that were

probably related to exposure to TCE. See Dr. Rodgers’ Table

of Symptoms (Attachment 31 to Litton’s App. in Supp. of

Summary Judgment Motions).

120. Plaintiffs offered no medical expert testimony that

plaintiffs Melanie Messer and Sandra Hancock suffered from

any illnesses or injuries related to their alleged exposure to TCE.

121. During his deposition, James “Kenny” Green admit-

ted that he was not claiming that he, himself, had suffered any

nervous-system damage, gastrointestinal disorders, liver dam-

age, skin disorders, immune-system damage, or any other

“symptoms, ailments, injuries of any kinds that [he] attribute[d]

to the chemicals in [his] water.” Deposition of James “Kenny”

Green at 51-52 (Attachment 11). Nor had any physician ever

told him that his alleged exposure to chemicals put him at risk

for any disease. Jd. at 53.

122. During his deposition, Marvin Garrett, too, admitted

that he was not “alleging in this lawsuit that [he has] suffered any

physical injury as a result of being exposed to chemicals that have

come from the .. . plant either in the groundwater or in the air.”

Deposition of Marvin Garrett at 27. Instead, he testified that he

is participating in the lawsuit, apparently, to recover money that

he gave to Barbara Messer, his fiance, for doctors’ Visits, travel,

telephone bills, and “power bills.” Jd. at 27-29.

84a

123. Independent medical examiner Dr. Cecil Durham, a

neurologist, examined the adult plaintiffs whose alleged expo-

sure to TCE was among the highest and concluded that they are

neurologically normal. See Dr. Durham’s Reports (Attachment

28) for Ancy Wimpey (“normal neurological examination”),

Barbara Messer (same), Keith Scott Gentle (same), Debbie

Chambers (same), Fred Allen Chambers (same), Martha Carroll

(same), James Carroll, Jr. (normal examination).

124. A number of adult plaintiffs were examined by neu-

rologist Dr. Jack E. Scariano at the request of plaintiffs’ attor-

neys. Dr. Scariano was originally named as an expert witness

by plaintiffs, but then withdrawn. Dr. Scariano concluded from

his examinations of plaintiffs that most were clinically normal

in virtually every respect. See Deposition of Jack E. Scariano

at 31 (“didn’t see any problems” in James Carroll, Jr.’s exami-

nation ), 41 (Rosetta Rogers “completely normal”), 47-48 (noth-

ing in Martha Carroll’s examination to corroborate her

complaints), 54 (Debbie Chamber’s examination negative), 61

(Fred Allen Chambers normal), 80-84 (Belinda Gaddis’ exami-

nation “totally normal”), 87 (James Kenny Green’s examination

“completely normal”), 95 (neurological examination of Peggy

Green “completely normal”), 97 (James Messer had “com-

pletely normal neurological examination”) (Attachment 22).

125. Plaintiffs identified four witnesses who would assert-

edly opine that some plaintiffs’ complaints were caused by

exposure to the chemicals at issue.” First, plaintiffs named Dr.

Alan Broughton to opine that plaintiffs suffered from immu-

2 Plaintiffs originally named neurologists Jack Scariano and Berta Ber-

gia as expert witnesses as well. They were named, not to provide opinions

concerning causal relationships, however, but merely to provide data to

Dr. Feldman. Drs. Bergia and Scariano almost invariably characterized their

findings of plaintiffs as normal in every respect. See Deposition of Jack E.

Scariano at 31, 41, 47-48, 54, 61, 64, 76-77, 80-84, 87, 95, 97 (Attachment

22); Deposition of Berta Bergia at 86, 93-94, 99-100, 110-11, 117-18,

128-30, 133, 138-39, 144-47, 153-54, 157-58 (Attachment 15).

85a

nological problems caused by the alleged exposure. Second,

plaintiffs named Eric Engum, Ph.D., to opine that certain cog-

nitive or emotional problems of some plaintiffs were caused by

the alleged exposure to chemicals. Third, plaintiffs named Dr.

Robert G. Feldman to opine that plaintiffs suffered from neuro-

logical problems caused by the alleged exposure to the chemi-

cals at issue. Finally, plaintiffs named George C. Rodgers,

M.D., Ph.D., a toxicologist.2_ Dr. Rodgers offers opinions that

a limited set of plaintiffs’ alleged physical problems has been

caused by their alleged exposure to TCE.

126. Litton’s Motion on Causation is based upon the al-

leged inadmissibility and insufficiency of the proposed testi-

mony of Drs. Broughton, Engum, Feldman, and Rodgers. They

are discussed below, seriatim.

1. Dr. Alan Broughton

127. Dr. Alan Broughton is a pathologist who does not treat

patients. Broughton Dep. at 93.

128. Dr. Broughton never examined or interviewed the

plaintiffs. Id. at 1-91-92, 1-326, 3-54-55.

129. Dr. Broughton runs a laboratory where he attempts to

measure various aspects of the human immune system. /d. at

1-57-59. He ran certain tests upon blood drawn from many, but

not all, of the plaintiffs.

130. Litton challenges the methodology of Dr.

Broughton’s analyses on a variety of grounds, but such chal-

lenges are not germane to Litton’s Motion on Causation with

respect to Dr. Broughton.

131. Dr. Broughton purported to find two types of effects

in plaintiffs’ immune systems. First, he purported to find in-

creased levels of certain T-lymphocytes, suggesting immune

> Plaintiffs originally named William L. Marcus, Ph.D., as their expert

toxicologist. He was withdrawn as an expert when the undersigned allowed

plaintiffs to name Dr. Rodgers.

86a

system activation. Second, he purported to find increased levels

of autoantibodies, i.e., immune cells that might improperly

regard certain human cells as foreign.

132. Dr. Broughton was unable to testify that any plaintiff

has a disease or injury caused, or probably caused, by that

plaintiffs’ alleged exposure to TCE. Broughton Dep. at 1-369,

1-372. In Dr. Broughton’s words: “The defense claims that I

have not made a diagnosis in these patients. They are correct.”

Broughton Aff., para. 17.4

133. Dr. Broughton admitted that he did not know whether

the levels of T-lymphocytes he found in plaintiffs were signifi-

cant in any respect. Broughton Dep. at 1-306.

134. Dr. Broughton admitted that, notwithstanding the al-

leged presence of autoantibodies in plaintiffs, he could not

testify that any plaintiff in fact had an autoimmune disease. Id.

at 1-91.

135. Dr. Broughton affirmatively testified that plaintiffs

“don’t have immune system disease.” Id. at 3-100.

136. Dr. Broughton testified that there were numerous

other possible causes of the subclinical findings he made in

4 See Broughton Dep. at 4-69 (James Messer has no disease), 4-69-70

(Jonathan Messer

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