Miller v. Mandrin Homes, Ltd.

Filing 920090108

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1285

MARTHA C. MILLER; JEFFREY M. MILLER, Plaintiffs - Appellants, and AMANDA MILLER; BRENDA MILLER; JUAN DAVID MILLER, Plaintiffs, v. MANDRIN HOMES, LIMITED; EDWARD C. KENNEDY; JAMES MANDRIN; CHAMPION REALTY, INCORPORATED, Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:05-cv-03025-CCB)

Argued:

September 24, 2008

Decided:

January 8, 2009

Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge, and James C. CACHERIS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Mitchell Jay Rotbert, THE ROTBERT LAW GROUP, L.L.C., Bethesda, Maryland, for Appellants. Steven Ellis Leder, LEDER LAW GROUP,

L.L.C., Baltimore, Maryland; Barbara Johnson Palmer, BLUMENTHAL, DELAVAN & WILLIAMS, P.A., Annapolis, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Appellants Millers") brought Martha suit Miller and Jeffrey after Miller the ("the Millers

against

Appellees

purchased a house and lot that they claim were contaminated by toxic substances. 1 (the The District court") Court granted for the District judgment of in

Maryland

"district

summary

favor of the Appellees.

Because the Millers failed to provide

more than speculative evidence regarding the contamination of their home, we affirm.

I. In January 2003, the Millers bought a tract of land in Centreville, Maryland from Appellee Mandrin Homes, Ltd.

("Mandrin"), and entered into a contract of sale for a house to be built on the land. They claim that the lot was previously

part of a solid and hazardous waste dump; that Mandrin and other Appellees knew or should have known this; and that by grading the land and disturbing its groundwater, Mandrin and other

Appellees caused the release of hazardous substances onto the

The Millers originally filed suit on behalf of their minor children as well. On February 22, 2007, the district court granted the Millers' motion to dismiss the claims of their minor children without prejudice. 3

1

land.

Appellee Champion Realty, Inc. served as the Millers' The Millers took possession of the house

agent in the purchase.

in late January 2003 and vacated it in November of the same year. They claimed that after the other moving in, they and noticed an

offensive

odor

coming

from and a

basement physical pipe in

experienced The

respiratory, Millers also

digestive, discovered

ailments. their

punctured

basement,

which was corrected by Mandrin, and claimed to notice structural defects and mold growth in the house. Between May 2002 and May 2003, thirteen environmental and structural inspections were completed on the house at the instigation of the Millers, Mandrin, and the Millers' home

insurance carrier.

The test results were mixed.

Several tests

found no problems; indeed, one reported that the air in the house was cleaner than the air outside. Another test

recommended the sanitation of the carpets and HVAC system in the house, and noted that the illnesses reported by the family had the characteristics of allergenic reactions to mold, mildew, and bacteria. The groundwater substances Millers claimed the that laboratory of tests and

analyses ("VOCs")

showed in

presence sump

volatile They

organic hired a

their

water.

hydrologist, Dr. Lorne Everett ("Dr. Everett"), to interpret the 4

test

results.

Dr.

Everett,

who

never

visited

the

house,

analyzed the studies and tests performed by third parties as well as aerial photographs of the house and surrounding area. He opined that the photos revealed significant land disturbances between 1952 and 1957 in the surrounding area "consistent with" a dump or landfill. He stated that "the detection of volatile

organic compounds (VOCs) and the semivolatile compound, phenol, in water from the sump at [the property] is indicative of

groundwater contamination under the property." provided a "Rebuttal Affidavit" in response

Dr. Everett also to an affidavit

submitted by the Appellees' expert, Dr. Jack Snyder. Dr. Snyder's affidavit stated that all the chemicals detected in the Millers' house were common substances "found around the average household and in sources other than

contaminated groundwater."

He also testified that the chemical

concentrations found in the sump water would not pose a health risk even if the sump water was ingested and that "the presence of a contaminant in sump water at the concentrations indicated does not establish either the origin of the contaminant or that the residents of the house were exposed to the contaminant." In November 2005, the Millers filed a Complaint

alleging violations of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et 5

seq., and making state law claims under Maryland law for breach of implied warranties, unfair competition Law, and deceptive and acts

under

Maryland

Commercial

deceit,

negligent

misrepresentation.

The district court granted summary judgment

in favor of the Appellees after ruling that the Millers did not present evidence showing a triable issue of fact as to

contamination.

This appeal followed.

II. We summary review de novo the district of court's grant of 56.

judgment

under

Federal

Rule

Civil

Procedure

Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004). We consider the record de novo and address

properly-preserved arguments raised by the appellant, as well as properly-preserved alternative bases for affirmance, to

determine whether the evidence shows a genuine issue of material fact that requires a trial. 503 (4th Cir. as 1997). This Beverati v. Smith, 120 F.3d 500, court applies "the the same legal and

standards

the

district

court

and

view[s]

facts

inferences drawn therefrom in the light most favorable to the non-moving party." Motor Club of America Ins. Co. v. Hanifi,

145 F.3d 170, 177 (4th Cir. 1998).

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III. The Millers acknowledge that all of the counts in If of

their Complaint rest on the CERCLA claim stated in Count I. the district court correctly found that no genuine issue

material fact existed as to the CERCLA claim, then it properly granted summary judgment on all counts in the Millers'

Complaint.

To prevail on a CERCLA claim, a plaintiff must show,

among other elements, that a "release" or "threatened release" of a "hazardous substance" has occurred. 42 U.S.C. § 9067; see

Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409, 414 (4th Cir. 1999); United States v. Md. Bank & Trust Co., 632 F. Supp. 573, 576 (D. Md. 1986). theories rely on the contamination case All of the Millers' legal of their on home by toxic of 2006 Dr.

substances. contamination Declaration Everett.

Thus, they the

their put

hinges

the the

evidence October of

forward, 2006

namely Rebuttal

and

December

Affidavit

They argue that these two documents show a genuine The district court disagreed, holding

issue of material fact.

that, to the contrary, Dr. Everett's testimony was insufficient to establish a prima facie case. The Millers claim that the district court wrongfully disregarded Dr. Everett's testimony as speculative. Under

Daubert v. Merrell Dow Pharmaceuticals, they contend, the court 7

should have scrutinized the methods and principles employed by their expert witness rather than his conclusions. 589 (1993). 509 U.S. 579,

They are correct, of course, that a trial court

must decide whether an expert's testimony is admissible under Daubert. 2 The analysis, however, does not end there. Even if

expert testimony meets the Daubert admissibility standards, the question remains whether the evidence creates a genuine issue of material fact, i.e., one that would allow the jury to find for the non-moving party on an essential element of the claim. no genuine issue of fact exists, summary judgment If is

appropriate.

Federal Rule of Evidence 702 governs the use of expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Daubert requires a two-part analysis to determine whether proposed expert testimony is admissible. First, the court must determine whether the expert's testimony is grounded in the scientific method and reflects scientific knowledge. Daubert, 509 U.S. at 590, 593. Second, the court must determine whether the evidence proffered is relevant. Id. at 597.

2

8

In judge

Daubert, that

the

Court

explained of to

that

when

a

trial

"concludes a

the is

scintilla

evidence allow a

presented reasonable

supporting

position

insufficient

juror to conclude that the position more likely than not is true," the judge "remains free . . . to grant summary judgment." 509 U.S. at 596. A fair reading of the district court's opinion

shows that the court had doubts about the admissibility of some or all of Dr. Everett's testimony, but also that it considered his testimony, taken at face value, insufficient to create a triable issue of fact. The court reviewed Dr. Everett's

statements and found that a reasonable jury could not logically base a verdict for the Millers on his testimony. the opinions of Dr. Everett are not sufficient We agree that to allow a

reasonable juror to find for the Millers. In the Fourth Circuit, proof of a necessary element offered to escape summary judgment "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) (citations and internal quotations omitted); see also Textron Inc. ex rel. Homelite Div. v. Barber-Colman Co., 903 F. Supp. 1558, 1565

(W.D. N.C. 1995). The Millers claim that Dr. Everett's expert

conclusions, when viewed in the light most favorable to them, 9

would

allow

a

reasonable

juror

to

infer

that

groundwater

contamination existed on the lot when it was owned by Mandrin, and that the contamination Dr. was a result of leachate from a

nearby

landfill.

Everett's

testimony,

though,

was

speculative as to the presence of a landfill and as to the existence of contamination. In his opinion, "the detection of

volatile organic compounds (VOCs) and the semivolatile compound, phenol, in water of from the sump at 127 Cypress the Street is

indicative

groundwater

contamination

under

property."

According to Dr. Everett, who studied the reports of others but did not personally visit the property, this contamination

occurred via leaching from a dump or a landfill, the presence of which is indicated by aerial photographs that show an "observed pattern of land disturbance . . . consistent with a dump or a landfill." occurrence Likewise, of he stated VOCs in and his affidavit that "the is

[chlorinated

phenolic

compounds]

consistent with contamination migrating in groundwater from a landfill source." Such claims, even if they would be admissible under Daubert, Millers' indicate theory no more than a mere is possibility The that the Dr.

of

contamination

true.

closest

Everett's affidavit comes to stating an opinion in a manner that would allow a reasonable jury to find for the Millers by a preponderance of the evidence 10 is his statement that the

detection of VOCs "is indicative" of groundwater contamination. This phrase, however, does not show that Dr. Everett believed there actually was groundwater contamination or, more to the point, that he could testify that it was his scientific opinion that groundwater contamination existed. Dr. Everett stated his

opinion in a passive manner that suggests his finding falls in the realm of the possible rather than the probable. He stated

that one fact ­ the detection of VOCs ­ is indicative of the existence of a second, required fact ­ groundwater

contamination.

The testimony provides no yardstick by which to The detection of VOCs could

measure the strength of this claim.

be "indicative" of any number of things, including other sources of contamination. Indeed, other evidence in the record states

unequivocally that all of the chemicals detected in the Miller's house also can be found around the average household. Dr.

Everett's testimony would not allow a jury to find groundwater contamination by a preponderance of the evidence. Moreover, none of the other links in the chain of

inferences supporting the Millers' landfill leachate theory was stated Millers as anything more no than a scientific of possibility. causation; The Dr.

also

produced

evidence

medical

Everett is not a medical doctor and thus did not posit his expert opinion In as to the causation the of the have Millers' claimed only

injuries.

short,

Millers 11

suggested

possibility, rather than probability, on an element essential to their claims. The district court properly granted summary

judgment.

IV. For judgment is AFFIRMED. the foregoing reasons, the district court's

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