United States District Court, N.D. Illinois
December 31, 2003.
TERESA LeCLERCQ, AL LeCLERCQ, individually, and on behalf of all persons similarly situated, Plaintiffs,
THE LOCKFORMER COMPANY, a division of MET-COIL SYSTEMS CORPORATION, a Delaware corporation, MESTEK, INC., a Pennsylvania corporation, and HONEYWELL INTERNATIONAL, INC., a Delaware corporation, Defendants THE LOCKFORMER COMPANY, a division of MET-COIL SYSTEMS CORPORATION, Third-Party Plaintiff, Hon. Harry D. Leinenweber v. ARROW GEAR COMPANY, AMES SUPPLY CO., BISON GEAR; DYNAGEAR, INC, FLEXIBLE STEEL LACING CO., MAGNETROL INTERNATIONAL, INC., MOLEX INCORPORATED, MOREY CORPORATION, REXNORD CORPORATION, TRICON INDUSTRIES, and LINDY MANUFACTURING COMPANY, Third-Party Defendants, v. DOWNERS GROVE SANITARY DISTRICT, et al., Fourth-Party Defendants
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Third-Party Defendant, Molex Incorporated, and other Third-Party
Defendants (collectively, "Third-Party Defendants") move to suppress
portions of an expert report submitted by Met-Coil Systems Corporation
(hereinafter, "Met-Coil"). For the reasons stated below, Third-Party
Defendants' motion is granted in part and denied in part.
Met-Coil faced two class-actions against it and its subsidiary The
Lockformer Company, the LeClercq and Mejdrech cases,
for damages resulting from trichloroethylene ("ICE") pollution suffered
by class-members. Rather than proceed to a trial verdict, Met-Coil
settled each case. Met-Coil now demands contribution for the settlement
pay out from Third-Party Defendants, alleging that they share
responsibility for the troublesome pollution. Originally, Met-Coil based
its case against Third-Party Defendants on three theories of liability: a
"St. Joseph Creek pathway theory," a "groundwater theory," and a "sewer
line theory." In an August 21, 2003 Order, this Court limited Met-Coil to
presenting only the "sewer line" theory in the LeClercq action.
In a December 17, 2003 order, this Court consolidated the
LeClercq and Mejdrech cases into a single action.
Met-Coil now seeks to submit the. expert report of Dr. Ronald St. John,
which concerns Third-Party Defendants' liability for pollution in the
LeClercq class area. Third-Party Defendants object to seven of
the nine opinions in the report (IV. 1, IV. 2, IV. 5, IV. 6, IV. 7, V.I,
and V.2) claiming these portions do not relate to the permissible sewer line theory. In response, Met-Coil admits that Opinions IV.6 and
IV.7 do not pertain to the sewer line theory, but insists that the
remaining portions go directly to showing the culpability of Third-Party
Defendants through a leaking Downers Grove Sanitary District
(hereinafter, "DGSD") sewer line.
A. Opinions No. IV.1, IV.2
Opinions No. IV.1 and IV.2 discuss the use and disposal of TCE at
Third-Party Defendants' facilities. Opinion No. IV.1 concerns the use of
TCE, tetrachloroethene ("PCE"), and 1, 1, 1-trichloroethane ("TCA") at
Third-Party Defendants' property inside the Ellsworth Industrial
District. Opinion No. IV.2 describes how, for several decades,
Third-Party Defendants discharged waste products into a DGSD treatment
plant in the northwest corner of the Ellsworth Industrial Park. This
opinion concludes that it is "likely" that these discharges included TCE,
PCE, and TCA.
Third-Party Defendants note that this Court's August 27 order prevented
Met-Coil from presenting "any expert testimony of any kind . . . other
than expert testimony on the sole and limited issue of a leaking Downers
Grove Sanitary District sewer line." Since Third-Party Defendants believe
that testimony regarding their use of TCE at Ellsworth does not concern
the "sole and limited issue" of a leaking sewer line, they seek to
In doing so, Third-Party Defendants interpret this Court's ruling too
broadly. To prove its claims of Third-Party Defendants' liability,
Met-Coil must establish two things: that Third-Party Defendants used TCE, and that this TCE contaminated the LeClercq
class-area. To show the latter, Met-Coil must demonstrate how
TCE from Third-Party Defendants' Ellsworth site wound up in the
LeClercq area, i.e., the existence of a "contamination
pathway." The Court's August 27 ruling simply limited Met-Coil to one
acceptable theory of a contamination pathway, a leaking DGSD sewer line,
thereby excluding the St. Joseph's Creek and groundwater theories.
The Court did not intend to prevent Met-Coil from doing everything
required to show Third-Party Defendants' liability under this theory. As
noted above, this certainly includes establishing that the pollution
originated with Third-Party Defendants. Therefore, information and expert
testimony concerning Third-Party Defendants use and disposal of TCE is
unquestionably relevant to the "sole and limited issue" of a leaking
sewer line. After all, a sewer line cannot "leak" without being filled
first. Therefore, Third-Party Defendants' motion with respect to IV.1 and
IV.2 is denied.
B. Opinion No. IV.5
Opinion No. IV.5 discusses Environmental Protection Agency
investigations of the Ellsworth site. It concludes that there is
"widespread TCE, PCE, and TCA contamination of these surface water
migration pathways." Met-Coil argues that this relates to the sewer line
theory by proving that Third-Party Defendants used chlorinated solvents.
However, assuming that Met-Coil's expert testimony is convincing, then
Opinions No. IV.1 and IV.2 should already establish Third-Party Defendants use and disposal of TCE, PCE, and TCA. Therefore, for that
purpose, Opinion No. IV.5 appears redundant. Conversely, the Court's
admittedly limited scientific expertise cannot fathom how "surface water
migration pathways" concern the sewer line theory. Rather, the existence
(or non-existence) of such pathways seems more relevant to the excluded
St. Joseph's Creek and groundwater theories. Therefore, Third-Party
Defendants' motion with respect to Opinion IV.5 is granted.
C. Opinions No.V.1 and V.2
In Opinion No. V, Dr. St. John concludes that Third-Party Defendants
bear 93% of the responsibility for the contamination of the
LeClercq class area. Opinion No. V.I allocates fault based on
groundwater characteristics, while Opinion No. V.2 assigns responsibility
according to the use of hazardous substances. Third-Party Defendants wish
to strike Opinion No. V in its entirety on the grounds that it does not
concern the "sole and limited issue of a leaking Downers Grove Sanitary
District sewer line."
Although the Court rejects Third-Party Defendants' reasoning, it
nevertheless grants their request. As noted above, the Court intended its
August 27 ruling to restrict only the acceptable theories Met-Coil could
proceed under, not inhibit its ability to present a substantive case.
Thus, in theory, Met-Coil has every right to allocate a percentage of
fault to Third-Party Defendants based on a sewer-line theory.
The problem here is that, in Opinion No. V.1, Dr. St. John appears to
have assigned relative fault based on a combination of the permissible sewer-line theory and the impermissible St. Joseph
Creek theory. Dr. St. John reaches the "conclusion that the DGSD pipeline
and/or St. Joseph Creek is the source of this additional
contaminant mass." Indeed, Dr. St. John infers his belief in a St. Joseph
Creek theory four times throughout Opinion No. V.1. Although this Court
tried to permit testimony based solely on the sewer-line theory to stand,
the Court cannot separate Dr. St. John's wheat from his chaff. It is
impossible for this Court to tell what percentage of fault Dr. St. John
assigns based exclusively on the sewer-line theory. Therefore, the Court
grants Third-Party Defendants' motion to strike Opinion No. Vs prologue
and Opinion No. V.1.
Opinion No. V.2 is a different matter. Indeed, Opinion No. V.2 reaches
no conclusion at all, other than to state that "appropriate data are not
available to make an equitable allocation of contribution based solely on
the quantity fo hazardous substance use by the various parties."
Accordingly, Opinion No. V.2 does not refer or relate to any
impermissible theory. Thus, the Court denies Third-Party Defendants'
motion with respect to Opinion No. V.2.
For the reasons stated herein, Third-Party Defendants' motion is
granted in part and denied in part as follows:
1. Third-Party Defendants' motion with respect to IV.1 and IV. 2 is
2. Third-Party Defendants' motion with respect to IV. 5 is granted. 3. Third-Party Defendants' motion to strike Opinion No. V's prologue
and Opinion No. V.1 is granted.
4. Third-Party Defendants' motion with respect to Opinion No. V.2 is
IT IS SO ORDERED.
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