# Appendix — Litton Systems, Inc. v. Carroll > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1863%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 516 U.S. 816 ## Text _-_-” -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, oe Rie NN, abe BN FAN Sk td City tantra eee Rin Sey WOE RN tre Ds ee or ae eee Sat ea Sada Sie A Psy’ atk Ce Aloe 2la 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. Bie ORS aL Sr cb te BAUER iiersiagt spaniels Bel DEO Becgarty Ne alia a MCN ORR op EHH A wl de 5 SMT baie a, 0 OBS gro, one Cabin 2 ao ges Ae TEI EOD RRR AE TRE AEG SLOT: NO LE BIN LR ig NOE A Bs 0 3 NSS ehh ah 3la 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). a bats, Gdn uid " kin2' 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.” So Bn eat te L9N Vins all BOY ala as ie hide,“ eiick th * Ea? A oieg cei tS 2a AIR NS IIE Ka ate ASA aa ay S5la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1863%3A2. Public record. Not legal advice.