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.
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 ...