WYMAN et al v. UNITED STATES SURGICAL CORPORATION et al

Filing 96

ORDER ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT denying 52 Motion for Partial Summary Judgment; dismissing 63 Motion Pursuant to Rule 56(d) to Defer or Deny Summary Judgment Motion Pending Discovery By JUDGE JOHN A. WOODCOCK, JR. (CCS)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KENNETH F. WYMAN, JR. et al.,
Plaintiffs,
v.
UNITED STATES SURGICAL
CORPORATION et al.,
Defendants.

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1:18-cv-00095-JAW

ORDER ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
A lobster and crab fisherman brings claims against the successor to the
corporation that disposed of tons of mercury into the Penobscot River based on harm
he and his business suffered allegedly as a result of shellfish contamination caused
by the continued presence of mercury in the Penobscot River. The fisherman seeks
partial summary judgment on his nuisance and strict liability causes of action,
arguing that past findings in a related Resource Conservation and Recovery Act
(RCRA) case should be applied to preclude the defense arguments on liability and
causation and, in the alternative, that he has established liability and causation even
without application of issue preclusion. Because the Court finds that issue preclusion
is not proper and that the successor entity has successfully raised genuine disputes
of material fact as to liability and causation, the Court denies the fisherman’s motion.
I.

PROCEDURAL HISTORY
On March 5, 2018, Kenneth F. Wyman, Jr. and F/V Megan K II LLC

(collectively Mr. Wyman) filed a complaint against United States Surgical

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Corporation (U.S. Surgical) and its wholly owned subsidiary Mallinckrodt US LLC
(Mallinckrodt). Compl. (ECF No. 1); Mallinckrodt US LLC’s Corporate Disclosure
Statement (ECF No. 13). On May 14, 2018, Mallinckrodt and U.S. Surgical filed a
partial motion to dismiss for failure to state a claim. Defs.’ Partial Mot. to Dismiss
(ECF No. 9). On May 30, 2018, Mr. Wyman filed a response to Mallinckrodt and U.S.
Surgical’s motion to dismiss. Pls.’ Obj. to Defs.’ Partial Mot. to Dismiss (ECF No. 16).
On June 13, 2018, Mallinckrodt and U.S. Surgical filed a reply to Mr. Wyman’s
objection. Defs.’ Reply in Supp. of Partial Mot. to Dismiss (ECF No. 22).
On June 15, 2018, Mallinckrodt and U.S. Surgical answered the Complaint,
Defs.’ Joint Answer and Affirmative Defenses (ECF No. 23), and on June 27, 2018, Mr.
Wyman moved to amend the Complaint. Pls.’ Mot. to Amend Compl. (Corrected) (ECF
No. 25). On July 23, 2018, a Magistrate Judge granted Mr. Wyman’s motion to amend
without objection, Order Granting Without Obj. Mot. to Amend (ECF No. 30), and Mr.
Wyman filed his amended complaint that same day. First Am. Compl. (ECF No. 31).
On August 6, 2018, Mallinckrodt and U.S. Surgical answered the First Amended
Complaint. Defs.’ Joint Answer to First Am. Compl. and Affirmative Defenses (ECF
No. 37) (Answer).

On March 6, 2019, the Court denied Mallinckrodt and U.S.

Surgical’s Partial Motion to Dismiss. Order Denying Defs.’ Partial Mot. to Dismiss
(ECF No. 50).
On March 7, 2019, Mr. Wyman filed a motion for partial summary judgment,
Pls.’ Mot. in Supp. of Mot. for Partial Summ. J. on Liability and Causation for Counts
I-II and III-IV (ECF No. 52) (Pls.’ Mot.), and a statement of material facts. Pls.’

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Statement of Material Facts as to Which There Is No Genuine Dispute (ECF No. 54)
(PSMF). On April 26, 2019, Mallinckrodt and U.S. Surgical filed a response to Mr.
Wyman’s motion for partial summary judgment, Defs.’ Opp’n to Pls.’ Mot. for Partial
Summ. J. (ECF No. 66) (Defs.’ Opp’n), a response to Mr. Wyman’s statement of
material facts, and a statement of additional material facts.

Defs.’ Opposing

Statement of Material Facts and Statement of Additional Material Facts (ECF No. 67)
(for Mallinckrodt and U.S. Surgical’s opposing statement of material facts, DRPSMF;
for Mallinckrodt and U.S. Surgical’s statement of additional material facts, DSAMF).
On June 7, 2019, Mr. Wyman filed a reply to Mallinckrodt and U.S. Surgical’s
response, Pls.’ Reply to Defs.’ Opp’n to Pls.’ Mot. for Partial Summ. J. (ECF No. 74)
(Pls.’ Reply), and a response to Mallinckrodt and U.S. Surgical’s statement of
additional material facts. Pls.’ Resp. to Defs.’ Statement of Additional Material Facts
(ECF No. 75).

On October 16, 2019, Mr. Wyman filed an amended reply to

Mallinckrodt and U.S. Surgical’s statement of additional material facts. Pls.’ Am.
Resps. to Defs.’ Statement of Additional Material Facts (ECF No. 89) (PRDSAMF).
Also, on April 26, 2019, Mallinckrodt and U.S. Surgical filed three additional
documents: a motion pursuant to Federal Rule of Civil Procedure 56(d) to defer or
deny summary judgment, Defs.’ Rule 56(d) Mot. to Deny or Defer Pls.’ Mot. for Partial
Summ. J. (ECF No. 63); a cross-motion for partial summary judgment, Defs.’ CrossMot. for Partial Summ. J. (ECF No. 64); and a statement of material facts in support
of its cross-motion for partial summary judgment. Statement of Material Facts in
Supp. of Defs.’ Cross-Mot. for Partial Summ. J. (ECF No. 65) (DSMF). On June 7,

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2019, Mr. Wyman filed three documents: an opposition to Mallinckrodt and U.S.
Surgical’s Rule 56(d) motion, Pls.’ Opp’n to Defs.’ Rule 56(d) Mot. (ECF No. 70); an
opposition to Mallinckrodt and U.S. Surgical’s cross-motion for partial summary
judgment, Pls.’ Opp’n to Defs.’ Cross-Mot. for Partial Summ. J. (ECF No. 71); and a
response to Mallinckrodt and U.S. Surgical’s statement of material facts with
additional material facts. Pls.’ Opposing Statement of Material Facts and Statement
of Additional Material Facts in Opp’n to Defs.’ Cross-Mot. for Partial Summ. J. (ECF
No. 72) (for Mr. Wyman’s opposing statement of material facts, PRDSMF; for Mr.
Wyman’s statement of additional material facts, PSAMF).
On July 12, 2019, Mallinckrodt and U.S. Surgical filed a reply to Mr. Wyman’s
response to its Rule 56(d) motion. Reply in Supp. of Defs.’ Rule 56(d) Mot. (ECF No.
83). Also, on that date, Mallinckrodt and U.S. Surgical filed a reply to Mr. Wyman’s
response to its cross-motion for partial summary judgment, Reply in Supp. of Defs.’
Cross-Mot. for Partial Summ. J. (ECF No. 81), and a reply to Mr. Wyman’s statement
of additional material facts. Defs.’ Reply Statement of Material Facts in Supp. of
Cross-Mot. for Partial Summ. J. (ECF No. 82) (DRPSAMF).
On July 21, 2019, Mr. Wyman filed an unopposed motion for oral argument on
the pending motions, Pls. Mot. for Oral Arg. on Pending Mots. (ECF No. 84); Defs.’
Resp. to Pls.’ Mot. for Oral Arg. On Pending Mots. (ECF No. 86), which the Court
granted on July 24, 2019. Order Granting Mot. for Oral Arg./Hr’g (ECF No. 87). The
Court held oral argument on February 19, 2019. Min. Entry for Proceedings Held
Before Judge John A. Woodcock, Jr. (ECF No. 94).

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II.

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FACTUAL BACKGROUND 1
Since 1987, Mr. Wyman has held a Class III commercial fishing license. PSMF

¶ 1; DRPSMF ¶ 1. Prior to 1997, when Maine established Lobster Management
Zones, there were no limitations on the number or location of the traps Mr. Wyman
could set; since 1997, his license has authorized him to harvest lobster and crab from
Lobster Management Zones C and D. 2 PSMF ¶ 1; DRPSMF ¶ 1; DSAMF ¶¶ 2-4;
PRDSAMF ¶¶ 2-4. Using his commercial fishing vessel, the Megan K II, Mr. Wyman
harvests lobster and crab from the maximum 800 traps allowed him. PSMF ¶¶ 2-3;
DRPSMF ¶¶ 2-3. Mr. Wyman has an owner-operated license and must therefore
personally be on board his boat when fishing. PSMF ¶ 4; DRPSMF ¶ 4. Mr. Wyman
was fifty-four at the time of his deposition in this matter on December 7, 2018.
DSAMF ¶ 1; PRDSAMF ¶ 1. F/V Megan K II LLC is a limited liability company
formed by Mr. Wyman and his wife in January of 2015 for the purpose of engaging in
maritime and waterfront activities such as fishing for lobsters and crabs. PSMF ¶ 5;
DRPSMF ¶ 5. In addition to lobster and crab fishing, F/V Megan K II LLC also has
a mooring service and a bait sales business and Mr. Wyman has a business

The Court states the facts “in the light most hospitable to [non-movants] consistent with record
support . . ..” Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32, 37 (1st Cir. 2018) (citing
Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,
17 (1st Cir. 2002)).
2
Mallinckrodt and U.S. Surgical qualify paragraph 1 of Mr. Wyman’s statement of material
facts by pointing out that Mr. Wyman’s restriction to Zones C and D was not put in place until 1997.
DRPSMF ¶ 1. The Court reviewed the cited portion of the record, agrees with Mallinckrodt and U.S.
Surgical, and altered paragraph 1 of Mr. Wyman’s statement of material facts to reflect the record
more accurately.
1

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transporting lobster to a wholesaler for other fishermen. 3 DSAMF ¶ 10; PRDSAMF
¶ 10.
U.S. Surgical is a Delaware corporation that is the successor through multiple
mergers to International Minerals and Chemical Corporation (IMC) and Sobin
Chemicals Inc. (Sobin) (collectively Mallinckrodt’s Predecessor), which entities owned
and operated the Orrington, Maine, chlor-alkali chemical plant (the Orrington Plant)
from when it was built in 1967 until 1982. 4 PSMF ¶¶ 6, 8-9; DRPSMF ¶¶ 6, 8-9. The
Orrington Plant sits on a 240-acre site located on the banks of the Penobscot River.
PSMF ¶ 9; DRPSMF ¶ 9. Mallinckrodt is a Delaware limited liability company and
is a wholly-owned subsidiary of U.S. Surgical. PSMF ¶ 7; DRPSMF ¶ 7. As a result
of mergers and by operation of law, U.S. Surgical has assumed all liabilities
associated with ownership and operation of the Orrington Plant from December of
1967 until April of 1982. PSMF ¶¶ 10, 12; DRPSMF ¶¶ 10, 12. Pursuant to a
contribution and assumption agreement dated March 1, 2007, Mallinckrodt assumed
liabilities of U.S. Surgical associated with the ownership and operation of the

The second sentence of paragraph 10 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts reads, “Mr. Wyman also has a business transporting lobster to a wholesaler
for other fishermen.” DSAMF ¶ 10. Mr. Wyman denies this sentence, saying that this transportation
is not a business, but rather he is “paid to transport lobsters to the wholesaler for just three other
fishermen at the same time [his] lobsters are transported.” PRDSAMF ¶ 10. The Court does not see
a distinction between a “business” and the activity being undertaken by Mr. Wyman in exchange for
pay. The Court rejects Mr. Wyman’s denial.
4
Mallinckrodt and U.S. Surgical qualify that portion of paragraph 6 of Mr. Wyman’s statement
of material facts which states that U.S. Surgical “is the legal successor” to IMC and Sobin, which
Mallinckrodt and U.S. Surgical say states a legal conclusion unsupported by the record citation.
DRPSMF ¶ 6. On this motion for summary judgment, the Court is obligated to view the facts in the
light most favorable to Mallinckrodt and U.S. Surgical as supported by the record. The Court reviewed
the cited portion of the record, agrees with Mallinckrodt and U.S. Surgical, and altered the statement
to remove the adjective “legal.”
3

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Orrington Plant that is the subject of this suit. 5 PSMF ¶ 11; DRPSMF ¶ 11. During
Mallinckrodt’s Predecessor’s ownership of the Orrington Plant, it supplied chlorine
to a major part of the paper industry in the state of Maine. DSAMF ¶ 141; PRDSAMF
¶ 141. As of August of 1972, the Orrington Plant employed fifty-five people and was
of great importance to the area of its operation and to the economy of the state of
Maine. 6 DSAMF ¶ 142; PRDSAMF ¶ 142.
A.

The Mercury Discharges

Between December 9, 1967, and April 30, 1982, Mallinckrodt’s Predecessor
manufactured chlorine and caustic soda at the Orrington Plant under the supervision
of plant manager and supervisor to the plant manager Peter DeAngelis. PSMF ¶ 13;
DRPSMF ¶ 13. One byproduct of the chemical production process of manufacturing
Mallinckrodt and U.S. Surgical deny Mr. Wyman’s statement that Mallinckrodt assumed
“liabilities that are the subject of this suit” on the grounds that it is unsupported by the record citation
and object to it as stating a legal conclusion. DRPSMF ¶ 11. The Court reviewed the cited portion of
the record, agrees with Mallinckrodt and U.S. Surgical’s denial, and altered the statement to reflect
the record more accurately. In their answer to the Amended Complaint, Mallinckrodt and U.S.
Surgical state that Mallinckrodt assumed “liabilities from the operation of the Orrington, Maine
chemical plant that is the subject of this suit.” Answer ¶ 5. The Court reads the phrase “that is the
subject of this suit” in the Answer as referring to the Orrington Plant, rather than “liabilities.”
Mr. Wyman additionally states that he will refer to Mallinckrodt, U.S. Surgical, and their
predecessors collectively as “Mallinckrodt.” PSMF ¶ 11. Mallinckrodt and U.S. Surgical object “on the
grounds that it is inaccurate, vague, and prejudicial to refer to each entity by a term used as a
designation by some, but not all, of those entities.” DRPSMF ¶ 11. Because Mallinckrodt and U.S.
Surgical are the non-movants on this motion for summary judgment, the Court will refer to
Mallinckrodt and U.S. Surgical as distinct from their predecessors.
6
Mr. Wyman qualifies paragraph 142 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts, arguing that Peter DeAngelis, the former plant manager of the Orrington
Plant, testified to this statement “but did not provide any evidence of its truth and, even if true, [this
fact] does not justify the contamination of the Penobscot River estuary from the operation of the plant.”
PRDSAMF ¶ 142. On this motion for summary judgment where Mallinckrodt and U.S. Surgical are
the non-movants, the Court must take all reasonable inferences in their favor. The Court regards Mr.
DeAngelis’ testimony as sufficient record support to include Mallinckrodt and U.S. Surgical’s
paragraph in its recitation of the undisputed facts. Additionally, because paragraph 142 does not state
that the economic importance of the Orrington Plant is sufficient justification for the pollution of the
Penobscot River estuary and because the Court does not interpret this paragraph as an attempted
economic justification for mercury pollution, the Court disregards the remainder of Mr. Wyman’s
qualification.
5

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chlorine and caustic soda is brine sludge, a chemical product that contains mercury
and other contaminants. PSMF ¶ 14; DRPSMF ¶ 14. Mr. DeAngelis testified that,
to his understanding, before opening the Orrington Plant, Mallinckrodt’s Predecessor
had to fill out a wastewater discharge permit application to comply with Maine law. 7
PSMF ¶ 15; DRPSMF ¶ 15. Mallinckrodt’s Predecessor’s March 7, 1967, permit
application, which it filed with the Maine Water Improvement Commission (MWIC),
did not state that Mallinckrodt’s Predecessor would be discharging mercury into the
Penobscot River. 8 PSMF ¶ 16; DRPSMF ¶ 16. When Mallinckrodt’s Predecessor

Mr. Wyman’s paragraph 15 states “[b]efore Mallinckrodt[‘s Predecessor] could begin
operations, it was required by 38 M.R.S.A. § 413 to obtain a permit for the discharge of pollutants from
the then existing Maine Water Improvement Commission,” citing Mr. DeAngelis’ deposition. PSMF
¶ 15. The Court first notes that the cited portion of the record does not contain reference to 38 M.R.S.
§ 413, the discharge of pollutants, or the Maine Water Improvement Commission, and so the Court
removed these references from Mr. Wyman’s statement.
Mallinckrodt and U.S. Surgical deny the statement on the grounds that Mr. DeAngelis “was
not competent to testify regarding the Maine legal requirements concerning the discharge of pollutants
in 1967” and that “[t]o the extent [Mr. Wyman] rel[ies] on Mr. DeAngelis’ description of what his
attorney told him, that is inadmissible hearsay.” DRPSMF ¶ 15. Additionally, Mallinckrodt and U.S.
Surgical state that “[b]ecause the record citations vaguely allude to legal requirements without
competent evidence as to the details of those requirements, the probative value of the evidence is
substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the
Court,” and that Mr. Wyman has “offered no competent evidence to support [his] assertion for what
Maine law required with respect to discharge of pollutants in 1967.” DRPSMF ¶ 15. The Court
reviewed the cited portion of Mr. DeAngelis’ deposition and agrees that alterations to Mr. Wyman’s
statement are necessary but does not agree that Mallinckrodt and U.S. Surgical have presented
sufficient grounds for denial. Mr. DeAngelis testified to his personal understanding of the reason for
filing a permit application. Additional Attachs., Attach. 1, Ex. 7: Excerpts from the Dep. of Peter
DeAngelis on July 24, 2001 at 12:25-13:07 (ECF No. 56) (DeAngelis Dep.). That his understanding
may have been influenced by the advice of counsel does not of itself render that personal understanding
inadmissible hearsay. As Plant Manager, Mr. DeAngelis is competent to testify about regulatory
matters affecting the plant and furthermore, as people do not learn things in a vacuum, the fact that
Mr. DeAngelis was aware of this regulatory requirement from what he read or from what he was told
does not render his personal knowledge hearsay.
Additionally, the Court does not view Mr. DeAngelis’ testimony as unduly prejudicial or
confusing. The Court altered Mr. Wyman’s statement to reflect that Mr. DeAngelis was testifying to
his personal understanding that a permit was required and Mallinckrodt’s Predecessor applied for it.
8
Mallinckrodt and U.S. Surgical’s qualification of this statement constitutes argument outside
the scope of the facts asserted in the statement, DRPSMF ¶ 16, and the Court disregards it as violative
of District of Maine Local Rule 56(c). See Michaud v. Calais Reg’l Hosp., No. 15-cv-00359-NT, 2017
WL 902133, at *1 n.1 (D. Me. Mar. 7, 2017) (noting that “qualifications” that exceed the scope of the
original statement are appropriately presented as additional facts rather than qualifications).
7

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completed its application for a wastewater discharge permit for the Orrington Plant
in March of 1967—before the plant began operations in December of 1967—it was
unaware that the plant would be discharging mercury. 9 DSAMF ¶ 121; PRDSAMF
¶ 121. At the time, Mallinckrodt’s Predecessor’s understanding of what waste would
be discharged from the plant was based on discussions with the firm that constructed
the Orrington Plant.

DSAMF ¶ 122; PRDSAMF ¶ 122.

The MWIC issued

Mallinckrodt’s Predecessor a wastewater discharge permit on April 24, 1967. 10 PSMF
¶ 17; DRPSMF ¶ 17.
Mallinckrodt’s Predecessor’s discharge permit required it to have a satisfactory
measuring and sampling device installed in its discharge outflow line or lines.11

Mr. Wyman qualifies Mallinckrodt and U.S. Surgical’s additional paragraph 121, arguing that
Mr. DeAngelis “testified that his only source of knowledge about wastewater discharge came from the
Leonard Construction Company and no other effort was made to determine whether mercury would
be part of the discharge of wastewater.” PRDSAMF ¶ 121. The Court does not regard this qualification
as inconsistent with Mallinckrodt and U.S. Surgical’s paragraph 121 and disregards Mr. Wyman’s
qualification. If Mr. Wyman wished to put in the record the facts he alleges in paragraph 121 of his
response to Mallinckrodt and U.S. Surgical’s statement of additional material facts, he was free to do
so in his own statement of material facts.
10
Mr. Wyman’s paragraph 18 states, “[a]fter the wastewater discharge permit was issued,
Mallinckrodt[‘s Predecessor] did not report to the M[WIC] that it was discharging mercury into the
Penobscot River at variance with its permit, as required by the permit,” citing Mr. DeAngelis’
deposition transcript. PSMF ¶ 18. Mallinckrodt and U.S. Surgical deny this paragraph for several
reasons, including that “[w]hen it realized it was discharging mercury into the Penobscot River, IMC
communicated that to the M[WIC].” DRPSMF ¶ 18. The Court reviewed the portion of Mr. DeAngelis’
deposition transcript cited by Mallinckrodt and U.S. Surgical and agrees that it provides a proper basis
for their denial, taking all inferences in their favor. In response to the question, “Do you remember
reporting to the state of Maine . . . that the plant was discharging mercury into the Penobscot River
prior to commencement of the federal suit under the Rivers and Harbors Act,” Mr. DeAngelis testified
that he was almost sure that this was discussed with the state. DeAngelis Dep. at 24:22-25:19. The
Court did not include Mr. Wyman’s paragraph 18.
11
Mallinckrodt and U.S. Surgical qualify paragraph 19 of Mr. Wyman’s statement of material
facts by stating that, “[g]iven the lack of competent evidence that the referenced permit required IMC
to install a device to measure and sample mercury,” paragraph 19 is “irrelevant, prejudicial, and risks
confusing the issues.” DRPSMF ¶ 19. The Court regards Mallinckrodt and U.S. Surgical’s
qualification of this statement as argument outside the scope of the facts asserted in the statement
and rejects the qualification for the reasons expressed in footnote 8, supra.
Paragraph 20 of Mr. Wyman’s statement of material facts states, “Mallinckrodt[‘s Predecessor]
did not install a measuring and sampling device in its discharge outflow line sufficiently satisfactory
9

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PSMF ¶ 19; DRPSMF ¶ 19. From the time the plant began operations, Mallinckrodt’s
Predecessor had chemists in its on-site laboratory analyze the plant outfall for
mercury, but the analyses did not reveal the presence of mercury. 12 DSAMF ¶ 123;
PRDSAMF ¶ 123. Every day from December 9, 1967, until June 1970, the Orrington
Plant sent mercury-contaminated brine sludge into the facility’s sewer, through the
facility’s outfall, and directly into the Penobscot River. PSMF ¶ 21; DRPSMF ¶ 21.
In addition, the Orrington plant discharged mercury through air emissions. 13 PSMF
¶ 22; DRPSMF ¶ 22. More mercury was discharged through air emissions than
through the facility outfall. 14 PSMF ¶ 23; DRPSMF ¶ 23. Mallinckrodt’s Predecessor

to detect mercury discharges from its plant.” PSMF ¶ 20. Mallinckrodt and U.S. Surgical deny this
paragraph, arguing that the portion of Mr. DeAngelis’ deposition relied on by Mr. Wyman makes clear
that Mallinckrodt’s Predecessor did indeed install a device capable of detecting mercury. DRPSMF
¶ 20. The Court reviewed the cited portion of the record and, viewing the record in the light most
favorable to the non-moving parties, agrees with Mallinckrodt and U.S. Surgical. The Court therefore
did not include Mr. Wyman’s paragraph 20 in its recitation of undisputed facts.
12
Mr. Wyman qualifies Mallinckrodt and U.S. Surgical’s additional paragraph 123, arguing that
“[i]n violation of the conditions of its wastewater license from the State of Maine, Mallinckrodt[‘s
Predecessor] did not install a satisfactory measuring and sampling device in its discharge outflow
line.” PRDSAMF ¶ 123. For his qualification, Mr. Wyman cites paragraphs 19 and 20 of his statement
of material facts. PRDSAMF ¶¶ 19-20. The Court already discussed Mr. Wyman’s paragraphs 19 and
20 and rejects Mr. Wyman’s qualification of Mallinckrodt and U.S. Surgical’s additional paragraph
123 for the reasons expressed in footnote 11, supra.
13
Mr. Wyman’s paragraph 22 states that “mercury from the Orrington plant was discharged into
the Penobscot River from air emissions and groundwater.” PSMF ¶ 22. Mallinckrodt and U.S.
Surgical qualify this statement on the grounds that “there is no record evidence of whether mercury
from air emissions ended up in the Penobscot River or, if so, how much.” DRPSMF ¶ 22. Furthermore,
they deny “that portion of the statement” which says mercury was discharged through groundwater
because Mr. Wyman “cite[s] no record evidence supporting the statement . . ..” DRPSMF ¶ 22. The
Court reviewed the cited portions of the record and agrees with Mallinckrodt and U.S. Surgical that,
viewing the record in the light most favorable to the non-movants, they do not support the portions of
paragraph 22 that suggest mercury discharged through air emissions entered the Penobscot River or
that mercury was discharged through groundwater. The Court left these portions of Mr. Wyman’s
paragraph 22 out of its recitation of undisputed facts.
14
Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 23 on the grounds that “there
is no evidence of whether mercury from air emissions ended up in the Penobscot River or, if so, how
much,” and therefore the statement is irrelevant and its probative value is outweighed by the danger
of unfair prejudice and confusion. DRPSMF ¶ 23. The Court regards Mallinckrodt and U.S. Surgical’s
qualification of this statement as argument outside the scope of the facts asserted in the statement
and rejects the qualification for the reasons expressed in footnote 8, supra. The Court does not agree

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knew from the beginning of operations that it was losing mercury through the
hydrogen gas stream and that it was losing significant amounts of mercury from other
sources. 15 PSMF ¶¶ 24-25; DRPSMF ¶¶ 24-25. Mr. DeAngelis stated that when the
Orrington Plant was designed, Mallinckrodt’s Predecessor and the prime design
contractor considered all the latest technology on safe handling of mercury. 16 PSMF
¶ 26; DRPSMF ¶ 26.
Mallinckrodt’s Predecessor made extensive efforts to determine what was
causing the loss of mercury but was not successful until early 1970. PSMF ¶ 26;
DRPSMF ¶ 26. Mallinckrodt’s Predecessor did not request that the off-site research
laboratory in Libertyville test the wastewater produced by the Orrington Plant for
mercury discharges until December of 1969, when it sent outfall samples to the
Libertyville facility. 17 PSMF ¶ 27; DRPSMF ¶ 27; DSAMF ¶ 124; PRDSAMF ¶ 124.

with Mallinckrodt and U.S. Surgical’s arguments about the danger of unfair prejudice or issue
confusion.
15
The Court regards Mallinckrodt and U.S. Surgical’s qualifications of Mr. Wyman’s paragraphs
24 and 25 as argument outside the scope of the facts asserted in the statements, DRPSMF ¶¶ 24-25,
and rejects the qualifications for the reasons expressed in footnote 8, supra. The Court does not agree
with Mallinckrodt and U.S. Surgical’s arguments about the danger of unfair prejudice or issue
confusion. DRPSMF ¶¶ 24-25.
16
Mallinckrodt and U.S. Surgical qualify a portion of paragraph 26 of Mr. Wyman’s statement
of material facts, which reads, in relevant part, “Mallinckrodt’s [Predecessor’s] plant manager claimed
that the Orrington plant was state of the art at the time of its construction . . ..” PSMF ¶ 26.
Mallinckrodt and U.S. Surgical point out that the portions of the record cited by Mr. Wyman for this
proposition are not quite so broad, reflecting only that Mallinckrodt’s Predecessor and the prime design
contractor considered the latest technology on safe handling of mercury. DRPSMF ¶ 26. The Court
reviewed the cited portions of the record, agrees with the non-movants, Mallinckrodt and U.S.
Surgical, and altered Mr. Wyman’s paragraph 26 to more accurately reflect the record. The Court
regards the remainder of Mallinckrodt and U.S. Surgical’s qualification of paragraph 26 as argument
outside the scope of the facts asserted in the statement, DRPSMF ¶ 26, and rejects the remainder of
the qualification for the reasons expressed in footnote 8, supra.
17
The introductory clause used by Mr. Wyman in his paragraph 27 reads, “Notwithstanding the
continuous and unaccounted for loss of massive amounts of mercury from the start of operations . . ..”
PSMF ¶ 27. Mallinckrodt and U.S. Surgical object to this clause, arguing that this language is “vague,
subjective, and prejudicial” and “is not supported by the record citation.” DRPSMF ¶ 27. The Court

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In April of 1970, the Libertyville research lab sent the Orrington Plant a report
showing mercury in the plant’s outfall using a different analytical method from the
on-site lab. 18 PSMF ¶ 28; DRPSMF ¶ 28; DSAMF ¶ 124; PRDSAMF ¶ 124. By at
least March 18, 1970, Mallinckrodt’s Predecessor was aware of the possibility that it
was losing mercury in its wastewater discharge of brine sludge because it was in
possession of an article published in May of 1969 which reported that mercury used
in chlorine plants is discharged through wastewater brine into aquatic systems,
where it converts into highly toxic methylmercury and also because Les MacMillan—
Mallinckrodt’s Predecessor’s “technical guy”—used this article in drafting a
memorandum regarding mercury loss from the Orrington Plant. 19

PSMF ¶ 29;

reviewed the portion of the record cited by Mr. Wyman, agrees with the non-movants, Mallinckrodt
and U.S. Surgical, and omits the objected-to language.
18
Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 28 to note that the Libertyville
research lab was not a Mallinckrodt facility. DRPSMF ¶ 28. The Court reviewed the portions of the
record cited by Mr. Wyman, notes that they do not provide support for the proposition that the
Libertyville research lab was a Mallinckrodt facility, and omits the language that was the subject of
Mallinckrodt and U.S. Surgical’s qualification.
19
Mr. Wyman’s paragraph 29 reads:
At least by March 18, 1970, Mallinckrodt[‘s Predecessor] was aware that it was losing
mercury in its wastewater discharge of brine sludge . . . because it was in possession
of an article written by Swedish scientists published in May 1969, reporting that
mercury used in chlorine plants is discharged through wastewater brine into aquatic
systems, where it converts into highly toxic methylmercury . . . and because Les
MacMillan (Mallinckrodt’s [Predecessor’s] “technical guy” . . .), was actually using the
Swedish Paper to assess the amount of mercury being discharged by Mallinckrodt[‘s
Predecessor] through the plant’s brine in March 1970.
PSMF ¶ 29. Mallinckrodt and U.S. Surgical qualify this paragraph, arguing that “[t]he record citations
reflect only that Mr. MacMillan reported to Mr. DeAngelis the theoretical possibility of mercury losses
in brine sludge.” DRPSMF ¶ 29. The Court reviewed the cited portions of the record and agrees that
the fact Mallinckrodt’s Predecessor possessed the May 1969 article does not establish that it knew of
mercury loss from wastewater discharge, only that it knew such losses were possible. Supporting this
view, Mr. MacMillan’s memorandum refers to hypothetical mercury losses through brine sludge and
does not refer to this scenario as a certainty. Additional Attachments, Attach. 1, Ex. 12: Memo from
A. L. MacMillan to Peter DeAngelis, Dated March 18, 1970 (ECF No. 57). Taking the record in the
light most favorable to the non-movants, the Court altered Mr. Wyman’s paragraph 29 to reflect that
Mallinckrodt’s Predecessor were aware by March 18, 1970, only of the possibility that mercury was
being lost in wastewater discharge of brine sludge. The Court regards the remainder of Mallinckrodt
and U.S. Surgical’s qualification as argument outside the scope of the facts asserted in the statement,

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DRPSMF ¶ 29. Mallinckrodt’s Predecessor had also read about the problems posed
by a chemical plant in Minamata, Japan that was discharging methyl mercury and
learned about high levels of mercury in fish in the Saint Clair River in Detroit due to
a nearby chlor-alkali plant. 20 PSMF ¶ 31; DRPSMF ¶ 31. However, prior to receiving
the results of the Libertyville lab’s analysis in April of 1970, Mallinckrodt’s
Predecessor was unaware that mercury was being discharged from the plant’s outfall
or any other waste stream. 21 DSAMF ¶ 125; PRDSAMF ¶ 125.

DRPSMF ¶ 29, and rejects the remainder of the qualification for the reasons expressed in footnote 8,
supra.
Mallinckrodt and U.S. Surgical also admit in part and deny in part Mr. Wyman’s paragraph
30, which reads:
Mallinckrodt[‘s Predecessor] knew or should have known about the Swedish Paper at
least by early May 6, 1969 because it was published as part of an industrial waste
conference on that date, because the article was also published by the Chlorine
Institute in 1969 as Pamphlet Number R-10 (request for a copy pending) and because
since 1967 [Mr.] DeAngelis was a member of the Chlorine Institute and its Mercury
Abatement Task Force.
PSMF ¶ 30. Mallinckrodt and U.S. Surgical respond that while they “admit that beginning in 1967
Mr. DeAngelis was a member of the Chlorine Institute and its Mercury Abatement Task Force,” the
remainder of paragraph 30 of Mr. Wyman’s statement of material facts is not supported by record
citations and they deny the remainder of the paragraph on that ground. DRPSMF ¶ 30.
The Court reviewed the cited portions of the record and agrees with Mallinckrodt and U.S.
Surgical. The cited portions of Mr. DeAngelis’ deposition do not support the proposition that he should
have known about a particular publication put out by an organization simply because he was a member
of that organization. Once this portion of Mr. Wyman’s paragraph 30 is excised, the Court views Mr.
DeAngelis’ membership in the Chlorine Institute as irrelevant. The Court therefore did not include
paragraph 30 in its recitation of undisputed facts.
20
Mr. Wyman cites a New York Times article for the proposition that mercury from the Detroit
chlor-alkali plant “resulted in the closing of the [Saint Clair R]iver for commercial fishing . . ..” PSMF
¶ 31. Mallinckrodt and U.S. Surgical object to citation of the New York Times article, arguing that it
is “inadmissible hearsay not subject to any exception.” DRPSMF ¶ 31. The Court agrees. Mr. Wyman
cites the article for its truth—that mercury released from a chlor-alkali facility resulted in the closure
of the Saint Clair River for commercial fishing. He cannot be citing it for its effect on the reader
because the article does not of itself establish that anyone at Mallinckrodt’s Predecessor read it. This
is impermissible hearsay, and the Court excluded that portion of Mr. Wyman’s paragraph 31 which
relies on the New York Times article.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification as
argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 31, and rejects the
remainder of the qualification for the reasons expressed in footnote 8 supra.
21
Mr. Wyman denies Mallinckrodt and U.S. Surgical’s paragraph 125, arguing that
Mallinckrodt’s Predecessor “knew or should have known that its plant was discharging mercury since
May 1969” and citing paragraphs 29 and 30 of his statement of material facts. The Court already

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B.

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Mitigation Measures

To reduce mercury discharge, Mallinckrodt’s Predecessor constructed Mac’s
Pond, the first landfill on the site, around June 15, 1970. 22 PSMF ¶ 32; DRPSMF
¶ 32.

Upon learning that there was mercury in the Orrington Plant’s outfall,

Mallinckrodt’s Predecessor took this action promptly to divert the contaminated brine
sludge from the effluent stream and contain it. 23 DSAMF ¶ 126; PRDSAMF ¶ 126.
Mac’s Pond, located on a downgradient between the facility and the Penobscot River,
was open and unlined. PSMF ¶ 33; DRPSMF ¶ 33. In his deposition, Mr. DeAngelis
did not remember whether any consideration was given to the potential
environmental impact of Mac’s Pond’s location on a downgradient. 24 PSMF ¶ 34;

reviewed Mr. Wyman’s paragraphs 29 and 30 and rejects Mr. Wyman’s denial for the reasons
expressed in footnote 19, supra. Mr. Wyman may present evidence about what knowledge
Mallinckrodt’s Predecessor had or should have had at different times, but the non-movants are
denying these assertions and the proper forum for him to make such arguments is at trial, not a motion
for summary judgment in which he is the movant.
22
Mallinckrodt and U.S. Surgical qualify paragraph 32 of Mr. Wyman’s statement of material
facts, which reads, “The first measure by Mallinckrodt to reduce mercury discharge occurred when the
company constructed Mac’s Pond, the first landfill on the site, around June 15, 1970.” PSMF ¶ 32.
Mallinckrodt and U.S. Surgical “admit that IMC constructed Mac’s Pond, the first landfill on the site,
around June 15, 1970,” and further state that “[o]nce Mac’s Pond was constructed, IMC also ceased all
direct discharges of brine sludge through the sewer and the outfall.” DRPSMF ¶ 32. The Court
reviewed the cited portions of the record and agrees with Mallinckrodt and U.S. Surgical that the cited
portions do not provide support for the statement that this was the first measure taken to reduce
mercury discharge. The Court therefore excised that portion of paragraph 32.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification as
argument outside the scope of the facts asserted in the statement, DRPRSMF ¶ 32, and rejects the
remainder of the qualification for the reasons expressed in footnote 8, supra.
23
Mr. Wyman denies Mallinckrodt and U.S. Surgical’s additional paragraph 126, arguing that
construction of Mac’s Pond “was not ‘prompt’ because mercury continued to be discharged from the
plant unabated, directly into the river until June 15, 1970” and “the action was not effective as Mac
Pond was open and unlined and on a downgradient to the Penobscot River, and no consideration was
given to the potential environmental impact of the downgradient.” PRDSAMF ¶ 126. The Court views
these denials as arguments about the success of Mac’s Pond as a remedial measure. But whether
Mac’s Pond was successful in diverting mercury has no bearing on whether the decision to construct
Mac’s Pond was prompt. The Court rejects Mr. Wyman’s denial of additional paragraph 126.
24
Paragraph 34 of Mr. Wyman’s statement of material facts reads, “No consideration was given
to the potential environmental impact of the downgrade.” PSMF ¶ 34. Mallinckrodt and U.S. Surgical
deny this paragraph, arguing that this statement is not supported by the record citation, as Mr.

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DRPSMF ¶ 34. Mallinckrodt’s Predecessor never obtained a permit from the United
States Army Corps of Engineers to discharge waste into the Penobscot River. 25 PSMF
¶ 35; DRPSMF ¶ 35.
On July 27, 1970, the United States brought an action against Mallinckrodt’s
Predecessor, which was amended on August 21, 1970. 26 PSMF ¶ 36; DRPSMF ¶ 36.
The complaint alleged that Mallinckrodt’s Predecessor’s effluent waste discharged
daily and continuously into the Penobscot River contained significant quantities of
mercury or mercury compounds suspended in solution. PSMF ¶ 37; DRPSMF ¶ 37.
At his deposition, Mr. DeAngelis had no information with which to dispute these
allegations. 27 PSMF ¶ 38; DRPSMF ¶ 38.

DeAngelis testified only that he did not recall whether environmental impact was considered.
DRPSMF ¶ 34. The Court reviewed the cited portion of the record, agrees with Mallinckrodt and U.S.
Surgical that it does not provide sufficient support for the statement at issue, and altered paragraph
34 to more accurately reflect the record.
25
Mr. Wyman’s paragraph 35 states that “Mallinckrodt[‘s Predecessor] never obtained a permit
from the U. S. Army Corp of Engineers to discharge waste into the Penobscot River as required by the
Rivers and Harbors Act of 1899, 33 U.S.C. §407.” PSMF ¶ 35. Mallinckrodt and U.S. Surgical deny
this statement, arguing that it “assumes a legal requirement for which there is no record evidence.”
DRPSMF ¶ 35. The Court reviewed the cited portion of the record, which does not mention the Rivers
and Harbors Act. See DeAngelis Dep. at 58:02-13. The Court concludes that the cited portion of the
record does not support the portion of the statement that refers to the Rivers and Harbors Act and
excised that portion of the statement.
26
Mr. Wyman’s paragraph 36 states, “As a consequence, on July 27, 1970, the United States
brought an action against Mallinckrodt[‘s Predecessor], which was amended on August 21, 1970.”
PSMF ¶ 36. Mallinckrodt and U.S. Surgical argue that the prefatory phrase “[a]s a consequence” is
not supported by the record citation. DRPSMF ¶ 36. The Court reviewed the cited portion of the
record, agrees with Mallinckrodt and U.S. Surgical for the reasons stated in footnote 25, supra, and
excised that prefatory phrase from paragraph 36.
27
Paragraph 38 of Mr. Wyman’s statement of material facts states that “Mallinckrodt had no
information with which to dispute those allegations.” PSMF ¶ 38. Mallinckrodt and U.S. Surgical
deny this paragraph on the ground that the given record citation showed only that Mr. DeAngelis, and
not Mallinckrodt or Mallinckrodt’s Predecessor, had no information with which to dispute the
allegations in the 1970 federal lawsuit. DRPSMF ¶ 38. The Court reviewed the cited portion of the
record and agrees with Mallinckrodt and U.S. Surgical. There is no allegation in the record that Mr.
DeAngelis was a designee of Mallinckrodt or Mallinckrodt’s Predecessor under Federal Rule of Civil
Procedure 30(b)(6) in the Federal RCRA case nor does the record reflect that he was otherwise
authorized to make representations about Mallinckrodt or its Predecessor’s scope of knowledge more

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In response to this federal suit, in July of 1970, Mallinckrodt’s Predecessor
constructed another containment area named Hickel’s Pond, plugged all effluent lines
from the main cell building, and diverted them into Hickel’s Pond. 28 PSMF ¶ 39;
DRPSMF ¶ 39; DSAMF ¶ 128; PRDSAMF ¶ 128. Hickel’s Pond, located close to the
Penobscot River and on a downslope from the Orrington Plant buildings, was
eventually lined due to concerns about leaching contaminates. PSMF ¶ 40; DRPSMF
¶ 40.

Mallinckrodt’s Predecessor instituted a program of “total environmental

control” which included, among other things, efforts to recycle or recover all mercury;
over the next approximately five years, Mallinckrodt’s Predecessor reduced mercury
in the effluent to 0.085 pounds per day. 29 DSAMF ¶ 129; PRDSAMF ¶ 129.
Mallinckrodt’s Predecessor developed and patented a borohydride system—
installed in early 1972—designed to permanently curb all mercury in its effluent. 30

generally, and so his deposition cannot be read as testimony on behalf of Mallinckrodt or its
Predecessor. The Court altered paragraph 38 accordingly.
28
Mallinckrodt and U.S. Surgical admit the contents of Mr. Wyman’s paragraph 39 and then
interpose additional facts outside the scope of the facts asserted in the statement. DRPSMF ¶ 39. The
Court rejects Mallinckrodt and U.S. Surgical’s qualification for the reasons expressed in footnote 8,
supra.
Paragraph 127 of Mallinckrodt and U.S. Surgical’s statement of additional material facts
reads, “[Mallinckrodt’s Predecessor] ceased all direct discharge of brine sludge through the sewer and
the outfall before July 27, 1970, when the federal government sued [Mallinckrodt’s Predecessor].”
DSAMF ¶ 127. Mr. Wyman denies additional paragraph 127, arguing that it is not supported by the
record evidence. PRDSAMF ¶ 127. The Court reviewed the cited portions of the record, agrees with
Mr. Wyman, and did not include additional paragraph 127 in its recitation of undisputed facts.
The Court regards Mr. Wyman’s qualification of paragraph 128 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 128, and rejects the qualification for the reasons expressed in footnote
8, supra.
29
The Court regards Mr. Wyman’s qualification of paragraph 129 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 129, and rejects the qualification for the reasons expressed in footnote
8, supra.
30
Mr. Wyman qualifies paragraph 130 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts. PRDSAMF ¶ 130. First, he argues that “[t]he testimony cited shows
uncertainty by Mr. DeAngelis about the borohydride system . . ..” PRDSAMF ¶ 130. The Court

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DSAMF ¶ 130; PRDSAMF ¶ 130. The total environmental control program also
included measures to eliminate mercury air emissions, which included but were not
limited to installation of heat exchangers to cool hydrogen and keep mercury
contained in cells, a brink mist eliminator to remove mercury particulates prior to
emission, and a state-of-the-art molecular sieve. 31 DSAMF ¶ 131; PRDSAMF ¶ 131.
The molecular sieve was installed in 1972 and reduced mercury air emissions. 32
DSAMF ¶ 132; PRDSAMF ¶ 132. Mallinckrodt’s Predecessor replaced all wooden
walkways with fiberglass walkways because it was easier to clean and remove
mercury from the fiberglass walkways. DSAMF ¶ 133; PRDSAMF ¶ 133. These
measures were among many taken in the early 1970s to contain or eliminate mercury
discharges; they were not implemented earlier because the plant operators had been
unaware of the need for them. 33 DSAMF ¶ 134; PRDSAMF ¶ 134.

reviewed the cited portions of the record and rejects this portion of Mr. Wyman’s qualification. The
testimony cited supports an inference in favor of non-movants Mallinckrodt and U.S. Surgical that the
system Mr. DeAngelis was referring to was indeed the borohydride system. See DeAngelis Dep. at
101:18-102:02. Second, Mr. Wyman contends that “Mr. DeAngelis admitted that there were sources
of mercury in the effluent that was not addressed by the system.” PRDSAMF ¶ 130. The Court does
not view this qualification as inconsistent with additional paragraph 130, which states only that the
system was designed to curb all mercury in its effluent. The Court rejects this portion of Mr. Wyman’s
qualification.
31
The Court regards Mr. Wyman’s qualification of paragraph 131 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 131, and rejects the qualification for the reasons expressed in footnote
8, supra.
32
Paragraph 132 of Mallinckrodt and U.S. Surgical’s statement of additional material facts
reads, “The molecular sieve was installed in 1972 and effectively reduced mercury air emissions.”
DSAMF ¶ 132. Mr. Wyman qualifies this paragraph as to the word “effectively” because “Mr.
DeAngelis could not compare mercury emissions before the sieve was installed with after it was
installed.” PRDSAMF ¶ 132. The Court did not include the word “effectively,” but notes that exclusion
of that word does not change the meaning of the paragraph.
33
Mr. Wyman denies paragraph 134 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, contending that “Mr. DeAngelis testified that the measures were not undertaken ‘in
the beginning’ . . ., not that they could not have been implemented earlier.” PRDSAMF ¶ 134. The
Court does not read additional paragraph 134 as saying that these measures could not have been taken
earlier and disregards Mr. Wyman’s denial as moot.

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In 1980, Mallinckrodt’s Predecessor capped landfills with impervious
materials to prevent pollution. 34 PSMF ¶ 42; DRPSMF ¶ 42. While Mallinckrodt’s
Predecessor owned and operated the Orrington Plant, there were mercury spills and
releases at the facility. 35 PSMF ¶ 43; DRPSMF ¶ 43. Beginning in 1972, the federal
government authorized Mallinckrodt’s Predecessor—through issuance of a National
Pollutant Discharge Elimination System (NPDES) permit from the Army Corps of
Engineers and a consent decree—to discharge small amounts of mercury in the
plant’s outfall; though there were violations of the discharge limits of the permit
between August of 1973 and April of 1982, these violations were extremely infrequent
and were promptly reported and corrected when they occurred. 36

PSMF ¶ 44;

Mr. Wyman’s paragraph 41 states, “It was more difficult for Mallinckrodt[‘s Predecessor] to
control mercury releases through air emissions, which was a long-term project for Mallinckrodt[‘s
Predecessor] that did not begin until 1973.” PSMF ¶ 41. Mallinckrodt and U.S. Surgical deny this
statement on two grounds; the first is that Mr. DeAngelis’ statement makes clear that Mallinckrodt’s
Predecessor did indeed take steps to curb air emissions of mercury prior to 1973. DRPSMF ¶ 41. The
Court reviewed the portions of the record put forth by both parties and agrees with the non-movants
Mallinckrodt and U.S. Surgical that efforts to curb air emission did take place before 1973.
Additionally, based on the cited portions of the record, the Court concludes that whether curbing air
emissions was “more difficult” for Mallinckrodt’s Predecessor is a disputed issue of fact. For these
reasons, the Court did not include paragraph 41 in its recitation of undisputed facts.
The Court regards Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph
42 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 42, and rejects
the qualification for the reasons expressed in footnote 8, supra.
35
The Court regards Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph
43 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 43, and rejects
the qualification for the reasons expressed in footnote 8, supra.
36
Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 44, which reads, “After
Mallinckrodt[’s Predecessor] was issued a NPDES permit from the Army Corp of Engineers in August
1973 until April 1982, there were violations of the discharge limits of the permit.” PSMF ¶ 44.
Mallinckrodt and U.S. Surgical argue that these violations occurred “between August 1973 and April
1982, not until April 1982.” DRPSMF ¶ 44 (emphasis omitted). The Court reviewed the cited portion
of the record and agrees with the non-movants Mallinckrodt and U.S. Surgical. Accordingly, the Court
altered paragraph 44 to more accurately reflect the record.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification of Mr.
Wyman’s paragraph 44 as argument outside the scope of the facts asserted in the statement, DRPSMF
¶ 44, and rejects the remainder of the qualification for the reasons expressed in footnote 8, supra.
Mr. Wyman qualifies paragraph 135 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts, asserting that “[t]he First Amended Complaint alleged the permit was issued
34

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DRPSMF ¶ 44; DSAMF ¶¶ 135-36; PRDSAMF ¶¶ 135-36. Discharges of mercury
from the Orrington Plant under the ownership and operation of Mallinckrodt’s
Predecessor continued until it sold the facility in 1982. 37 PSMF ¶ 45; DRPSMF ¶ 45.
It was not practicable for Mallinckrodt’s Predecessor to operate the Orrington Plant
without discharging some mercury into the Penobscot River. 38 PSMF ¶ 46; DRPSMF
¶ 46.
The Maine Department of Environmental Protection (Maine DEP) began
identifying and regulating hazardous wastes in 1980, at which time industrial
wastewater discharges subject to regulation under the Clean Water Act were
excluded from its definition of hazardous wastes. 39 DSAMF ¶ 137; PRDSAMF ¶ 137.
Mallinckrodt’s Predecessor’s discharges were subject to regulation under the Clean

in August 1973” and “[t]he record cited by [Mallinckrodt and U.S. Surgical] refers to a permit that was
issued ‘in 1972 or so.’” PRDSAMF ¶ 135. Though the Court expects that there is a definitive answer
to when the permit was issued, and furthermore does not view the answer to this question as
dispositive of the underlying issues relevant to this motion for summary judgment, the Court takes
the inference, reasonably supported by the record and in favor of the non-movants, that the permit
was issued in 1972.
37
The Court regards Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph
45 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 45, and rejects
the qualification for the reasons expressed in footnote 8, supra.
38
The Court regards Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph
46 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 46, and rejects
the qualification for the reasons expressed in footnote 8, supra. However, the Court reviewed the
portions of the record cited by Mr. Wyman and replaced the word “possible,” used in paragraph 46,
with the word “practicable” to more accurately reflect the record. See Additional Attachs., Attach. 1,
Ex. 20: Letter from Peter DeAngelis to EPA, Dated August 16, 1972 at 4 (ECF No. 58).
39
Mr. Wyman qualifies this paragraph, stating that “[t]he exclusion does not apply to hazardous
waste discharged from December 1967 until the enactment of regulations under the 1972 amendments
to the Clean Water Act” and that “[l]ater amendments to the DEP regulations clarified that the
exemption only applies to discharges ‘in fact’ regulated by the Clean Water Act.” PRDSAMF ¶ 137.
In light of paragraph 138 of Mallinckrodt and U.S. Surgical’s statement of additional material facts,
which states that Mallinckrodt’s Predecessor’s discharges prior to 1973 were not exempt from the
definition of hazardous wastes, DSAMF ¶ 138, and which Mr. Wyman admits, PRDSAMF ¶ 138, the
Court regards Mr. Wyman’s qualification as moot.

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Water Act from at least 1973 onward. 40 DSAMF ¶ 138; PRDSAMF ¶ 138. The human
health expert for the plaintiffs in the case Natural Resources Defense Council, Inc.
and the Maine People’s Alliance filed against Mallinckrodt Inc. in the United States
District Court for the District of Maine with docket number 1:00-cv-00069-JAW
(Federal RCRA Case) testified that, prior to research conducted in the 1980s, no one
knew that low levels of exposure to methylmercury could cause human health
problems. 41 DSAMF ¶ 140; PRDSAMF ¶ 140.

Paragraph 139 of Mallinckrodt and U.S. Surgical’s statement of additional material facts
reads, “[Mallinckrodt’s Predecessor] was unaware in the early 1970s of any impact of mercury
contaminated sediments on marine life in the Penobscot River and Bay.” DSAMF ¶ 139. Mr. Wyman
denies this paragraph, pointing out that the cited portion of the record “states that Mr. DeAngelis
claimed that he personally was not aware of the impact of mercury contaminated sediments on marine
life.” PRDSAMF ¶ 139. It is not the Court’s understanding that Mr. DeAngelis was a Rule 30(b)(6)
designee testifying on behalf of Mallinckrodt’s Predecessor. Even if he were, his personal lack of
awareness is not sufficient for the Court to draw an inference that the entire company was unaware.
The Court did not include paragraph 139 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts in its recitation of the undisputed facts; in light of this, the Court views the remainder
of Mr. Wyman’s denial as moot.
41
Mr. Wyman qualifies Mallinckrodt and U.S. Surgical’s additional paragraph 140, arguing as
follows:
Dr. [Phillipe] Grandjean testified in the cited transcript that when he was researching
in the 1980s “we were very much aware that methylmercury was extremely toxic to
the developing brain.” He testified that he conducted research to understand the
effects of small doses, but he did not testify that “no one knew prior to his research
about smaller doses and he did not define what he considered to be “smaller doses.” In
fact, Mallinckrodt’s [Predecessor’s] own consultant (T.W. Beak Consultants) issued a
report to Mallinckrodt[‘s Predecessor] in 1972 that stated that the “toxicity of mercury
and its compounds has been known since antiquity, but the realization that mercury
discharged to the environment in small traces could be hazardous is recent.” Reference
was made in the Beak report to a Swedish study published in 1969 by Jensen and
Jernelov describing the methylation in sediments that “is one of the most hazardous
pathways for mercury pollution.”
PRDSAMF ¶ 140. The Court reviewed the cited portions of the record and disregards Mr. Wyman’s
qualification. In the portion of the record cited by Mallinckrodt and U.S. Surgical, Dr. Grandjean
testifies that while scientists knew that small doses of lead could do subtle damage to the brain, “we
did not know about methyl mercury . . ..” DSAMF, Attach. 3, Ex. 3: Phase I Trial Tr. Excerpts at March
07 Part 1 14:05-19. On this motion for summary judgment where Mallinckrodt and U.S. Surgical are
the non-movants, the Court views this testimony as sufficient to draw the reasonable inference for
purposes of this motion only that scientists did not know about the risks posed by small doses of
methylmercury prior to the early 1980s.
40

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Hanlin Group, Inc. (Hanlin), the company which purchased the Orrington
Plant from Mallinckrodt’s Predecessor in 1982, allowed the plant to fall into
mechanical and environmental disrepair, including cracks in the concrete floors
around the plant’s cells and collection system, cell supports giving way, worn out cell
switches, problems with the anode adjusting system, poor maintenance on the
pollution control systems, and piping leaks in the brine field. 42 DSAMF ¶ 143;
PRDSAMF ¶ 143. Some of this disrepair caused mercury releases to the environment
beyond the Orrington Plant. DSAMF ¶ 143; PRDSAMF ¶ 143. Toward the end of its
ownership, Hanlin had financial troubles that caused it to deviate from a consent
decree with the federal government. DSAMF ¶ 144; PRDSAMF ¶ 144. Hanlin sold
the plant to HoltraChem Manufacturing, which had a rash of spill events—some
related to equipment failure and some to operator error. DSAMF ¶ 145; PRDSAMF
¶ 145. Hanlin was responsible for sixty-one known spills or releases during the period
it owned the Orrington Plant. DSAMF ¶ 146; PRDSAMF ¶ 146.

Mr. Wyman requests that the Court strike paragraph 143 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts:
Its only relevance is to challenge the ruling by Judge Carter in Maine People’s Alliance
that that “[t]he evidence was clear that Mallinckrodt has been a dominant source of
mercury in the Penobscot River.” This ruling was affirmed on appeal and Mallinckrodt
had the opportunity to challenge it again in the Phase II proceedings but failed to do
so. At this point [Mallinckrodt and U.S. Surgical] are precluded from challenging this
ruling. In any event, there is no quantification of any mercury discharges by Hanlin.
PRDSAMF ¶ 143 (some alternations in original). Mr. Wyman makes the same request to strike
additional paragraphs 144 through 153. PRDSAMF ¶¶ 144-153. The Court responds to all these
qualifications here.
For reasons the Court discusses in the body of its opinion, see Section V.A.1.a, infra, the Court
considers Judge Carter’s “dominant source” language to be dicta which has not previously been
litigated. Mallinckrodt and U.S. Surgical are thus not precluded from challenging this language. The
Court therefore denied Mr. Wyman’s request to strike additional paragraphs 143 through 153.
42

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In the Federal RCRA Case, Dr. Kenneth Finkelstein, an environmental
scientist with the National Oceanic and Atmospheric Administration, testified that
all New England—including the Penobscot River—has an issue with mercury coming
from the atmosphere. DSAMF ¶ 147; PRDSAMF ¶ 147. Stacy Ladner, then-head of
the Maine DEP’s licensing unit for the hazardous waste program, testified it is “very
hard to attribute mercury to different entities because Holtrachem isn’t the only
party that[] discharged mercury into its estuary;” for example, the paper mills on the
Penobscot used mercury and disposed of consumer products that contained mercury.
DSAMF ¶ 148; PRDSAMF ¶ 148. Ms. Ladner agreed with Dr. Finkelstein that there
is a region-wide mercury issue due to atmospheric deposition, stating “we have a
mercury problem in the whole Northeast, including in Maine,” and noting that “we
have fish advisories across the state, not just on [the Penobscot] [R]iver.” DSAMF ¶
149 (alterations in original); PRDSAMF ¶ 149. It was Ms. Ladner’s understanding
that the background mercury concentration in the Penobscot River was 290
nanograms per gram. DSAMF ¶ 150; PRDSAMF ¶ 150. John Sowles, then-director
of ecology for the Maine Department of Marine Resources (Maine DMR), testified that
mercury sources to the Penobscot River included atmospheric deposition, much of
which came from sources outside of New England, and discharges from paper mills
and publicly-owned treatment works. DSAMF ¶ 151; PRDSAMF ¶ 151. He testified
that there were “large sources of mercury coming down the Penobscot River from
above Bangor.” DSAMF ¶ 151; PRDSAMF ¶ 151.

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The trial testimony Judge Carter cited when he referred to Mallinckrodt as “a
dominant source of mercury in the Penobscot River” referred to operations of the
plant over its lifetime and was not limited to pre-1982 operations under
Mallinckrodt’s Predecessor’s ownership. DSAMF ¶ 152; PRDSAMF ¶ 152. The
witness Judge Carter relied on for this statement also testified that he could not
determine whether the Orrington Plant was a significantly greater source of mercury
to the river before 1971 than it was in later years. DSAMF ¶ 153; PRDSAMF ¶ 153.
C.

The Federal RCRA Suit Study Panel

In the Federal RCRA Case, Judge Carter created a study panel (Study Panel)
and directed the implementation of the Penobscot River Mercury Study (PRMS).
PSMF ¶ 47; DRPSMF ¶ 47. Samples of lobster meat taken just prior to Phase I of
the Federal RCRA Case suggested that mercury concentrations in the meat of
Penobscot Bay lobsters were low relative to lobster in other areas of the state. 43
DSAMF ¶ 112; PRDSAMF ¶ 112. During Phase I of the Federal RCRA Case, several
individuals testified that they do not eat fish or shellfish from the Penobscot River or
Bay because they are concerned that the fish have dangerous levels of mercury that
may harm their health. DSAMF ¶ 38; PRDSAMF ¶ 38. The implementing order

Paragraph 112 of Mallinckrodt and U.S. Surgical’s statement of additional material facts
reads, “At the time of Phase I of the federal RCRA case, mercury concentrations in the meat of
Penobscot lobsters were low relative to lobster in other areas of the state.” DSAMF ¶ 112. Mr. Wyman
qualifies this additional paragraph, asserting that the portion of the record cited by Mallinckrodt and
U.S. Surgical “refers to what data from 1995 and 1996 tests ‘suggested’ and was later contradicted by
sampling by the PRMS Study Panel.” PRDSAMF ¶ 112. The Court reviewed the cited portions of the
record and agrees that the record citation provided by Mallinckrodt and U.S. Surgical refers only to
what samplings in 1995 and 1996 suggested. In light of this, the Court does not view the statement
that the mercury concentrations of lobster in the Penobscot Bay were definitively lower than lobster
in other areas of the state as a reasonable inference to draw and altered paragraph 112 of Mallinckrodt
and U.S. Surgical’s statement of additional material facts to more accurately reflect the record.
43

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directed that the Study Panel create a study plan for a two-phase study to address
the extent of the harm resulting from mercury contamination of the Penobscot River
estuary, including whether the mercury posed an unacceptable risk to human health
and the need for and feasibility of a remediation plan. PSMF ¶ 48; DRPSMF ¶ 48.
The Study Panel submitted its PRMS Phase I Report (Phase I Report) to the Court
in the Federal RCRA Case on January 25, 2008, concluding that:
1.

the Penobscot River and estuary are contaminated with mercury to an
extent that poses some limited risk to human consumers of fish and
shellfish, with some lobsters found to contain mercury levels in excess
of Maine DEP and United States Environmental Protection Agency
criterion for protection of human health;

2.

the pattern of contamination of the sediments of the Penobscot River
and estuary is not consistent with contamination from paper mills on
the river or from regional atmospheric deposition of mercury but is
consistent with a large source such as the Orrington Plant; and

3.

the spatial pattern of contamination of various species of biota, such as
lobsters, is also consistent with elevated inputs of mercury to the lower
Penobscot River below the Veazie Dam. 44

Mallinckrodt and U.S. Surgical object to Mr. Wyman’s paragraph 49 on the grounds that “the
Study Panel was not charged with determining the source of mercury contamination, and this issue
was not litigated in the Phase II trial” and that Mallinckrodt and U.S. Surgical dispute certain of the
Study Panel’s findings. DRPSMF ¶ 49. Mallinckrodt and U.S. Surgical do not, however, appear to
deny that the conclusions of the study panel as laid out in paragraph 49 of Mr. Wyman’s statement of
material facts were not, in fact, the conclusions of the Study Panel. Therefore, and after reviewing the
cited portions of the record, the Court regards Mallinckrodt and U.S. Surgical’s qualification of
paragraph 49 as argument outside the scope of the facts asserted in the statement and rejects the
qualification for the reasons expressed in footnote 8, supra.
44

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PSMF ¶ 49; DRPSMF ¶ 49. Judge Carter approved and adopted the Phase I Report,
with some emendations, on March 7, 2008, ordering the Study Panel to proceed to
Phase II of the PRMS. 45 PSMF ¶ 50; DRPSMF ¶ 50. In doing so, he ruled:
It is now established in the record that mercury (Hg) deposited in the
Penobscot River in significant quantities and to substantial negative
effect from the [Orrington Plant] has and is now in the process of
methylation posing a danger to the health of the wildlife in the River
and risks of a substantial nature to the well-being of human beings who
ingest the products of the River. That is the distillation of the factual
predicate on which this case is to proceed.
PSMF ¶ 50; DRPSMF ¶ 50.
On July 27, 2009, the Study Panel filed an update to the Phase I Report, which
concluded that “[a]t some locations two species of shell fish, lobster and rock crab,
approached or exceeded Maine DEP guidelines for human consumption,” that the
geographic pattern of mercury concentrations in several species revealed higher
concentrations at locations closer to the Orrington Plant (which is consistent with the
Orrington Plant being the major source of mercury to the river), and that added data
and analysis supported the original conclusions of the Phase I Report that the
Penobscot River estuary continues to be significantly contaminated with mercury. 46
Mallinckrodt and U.S. Surgical qualify paragraph 50 of Mr. Wyman’s statement of material
facts, noting that Judge Carter accepted the Phase I Report “with emendations.” DRPSMF ¶ 50. The
Court reviewed the cited portion of the record, agrees with Mallinckrodt and U.S. Surgical, and altered
Mr. Wyman’s paragraph 50 to more accurately reflect the record.
46
Mr. Wyman’s paragraph 51 states that the update to the Phase I Report suggested that one of
the original conclusions of the Phase I Report was that “the [Orrington Plant] was the dominant source
of th[e] mercury contamination” in the Penobscot River estuary. PSMF ¶ 51. Mallinckrodt and U.S.
Surgical qualify paragraph 51 by noting that “the Update does not state that the Orrington facility
was the dominant source of that mercury contamination.” DRPSMF ¶ 51. The Court reviewed the
cited portion of the record and, on this motion for summary judgment, agrees with the non-movants
Mallinckrodt and U.S. Surgical that the update to the Phase I Report does not state that the Orrington
Plant was the dominant source of that mercury contamination or that this was a conclusion of the
Phase I Report. Rather, the update lists several things that were “consistent with HoltraChem as the
dominant source of Hg in the Penobscot system” as well as some things that were not consistent with
45

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PSMF ¶ 51; DRPSMF ¶ 51. In April of 2013, the Study Panel issued its Final Phase
II Report (Phase II Report), which concluded that, at the time of the release of the
report:
1.

there was extensive contamination of the Penobscot River estuary due
to mercury released from the Orrington Plant;

2.

the geographic extent and pattern of the mercury contamination—both
in deep sediments and surface sediments, as well as in biota—and the
timing of such contamination was consistent with the Orrington Plant
being the major source of mercury to the estuary;

3.

between 1967 and the early 1970s, six to twelve tons of mercury were
discharged from the Orrington Plant into the Penobscot River by
Mallinckrodt’s Predecessor, with smaller amounts released since that
time;

4.

legacy mercury discharged from the Orrington Plant—mostly between
1967 and the 1970s, and to a lesser extent until 2000—was responsible
for the then-present-day contamination of the Penobscot River estuary
in sediments and biota, as opposed to ongoing outputs from the upper
estuary;

such a conclusion. Additional Attachs., Attach. 6, Ex. 25: Excerpts from the Update to the PMRS Phase
I Report, Dated July 27, 2009, Federal RCRA Case (ECF No. 480) at xxiii-xxiv (ECF No. 58) (Phase I
Report Update). The Court excised this language from Mr. Wyman’s paragraph 51 to more accurately
reflect the record.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification as
argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 51, and rejects the
remainder of the qualification for the reasons expressed in footnote 8, supra.

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5.

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the contamination in the Penobscot River estuary was ten to twenty
times as high as regional background concentrations;

6.

the legacy mercury released by Mallinckrodt’s Predecessor in the late
1960s and early 1970s created mercury concentrations in surface
sediments that were ten- to twenty-fold higher in the upper estuary than
in sediments either upstream of the Veazie Dam or south of Fort Point;

7.

more than ninety percent of the lobster samples taken from sites closest
to the mouth of the Penobscot River (at Odom Ledge, South Verona, and
Fort Point) contained mercury in amounts that exceeded up to twice the
level of mercury concentration set to protect human health by the
Maine Center for Disease Control and Prevention (Maine CDC) for
mercury in seafood of 200 nanograms per gram;

8.

average methylmercury concentrations in rock crabs exceeded the 200
nanogram per gram wet weight limit for human consumption set by the
Maine DEP at four sites in the upper Penobscot Bay, and individual
crabs exceeded this limit in six additional sites; and

9.

in the absence of remedial treatment, mercury contamination of the
Penobscot River estuary will continue for decades. 47

Mallinckrodt and U.S. Surgical deny Mr. Wyman’s paragraph 52, arguing that the Court in
the Federal RCRA Case “did not adopt the Phase II Report,” as is stated in paragraph 52. DRPSMF
¶ 52. The Court agrees that it did not adopt the report; rather it dismissed the parties’ objections
without prejudice, anticipating that they would be the subject of a subsequent bench trial. The Court
therefore removed that portion of Mr. Wyman’s paragraph 52 which states that the Court accepted
the Phase II Report over objections. See PSMF ¶ 52.
Mallinckrodt and U.S. Surgical also argue that “the statements concerning the Maine Fish
Tissue Actions Level [(FTAL)] of 200 ng/g . . . mischaracterize the purpose and meaning of the FTAL,”
and deny those statements. DRPSMF ¶ 52. The Court reviewed the cited portions of the record and
47

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PSMF ¶ 52; DRPSMF ¶ 52.
In the Federal RCRA Case, in the context of commending the Study Panel and
the parties’ expert witnesses and reflecting the Phase II Report’s findings, the Court
stated that “[e]normous volumes of mercury” were discharged by the Orrington Plant
into the Penobscot River. 48

PSMF ¶ 53 (alteration in original); DRPSMF ¶ 53.

According to the Study Panel Report, between 1967 and the early 1970s, the
Orrington Plant discharged between six and twelve tons of mercury into the

overrules Mallinckrodt and U.S. Surgical’s denial. Regardless of whether the FTAL was actually set
with the purpose of protecting health, that was a conclusion of the Phase II Report. See Additional
Attachs., Attach. 7, Ex. 26: Excerpts from the Final PRMS Phase II Report, Dated April 2013, Federal
RCRA Case (ECF No. 652) at 14-2 (ECF No. 58) (stating that 200 nanograms per gram was the “Hg
target concentration to protect human health”).
Mr. Wyman’s paragraph 52 includes the asserted conclusion that “[i]n the absence of remedial
treatment, the mercury contamination of the Penobscot River estuary will continue for decades.”
PSMF ¶ 25. Mallinckrodt and U.S. Surgical object to this portion of paragraph 52 on the grounds that
it is “too vague to allow for a response” because it does not define “mercury contamination.” DRPSMF
¶ 52. In Mallinckrodt and U.S. Surgical’s view, “[a]ny comparison of natural recovery times with
remediation recovery times is meaningless absent a definition of what recovery means.” DRPSMF
¶ 52. To acknowledge this portion of paragraph 52 is ambiguous does not mean it is false. For purposes
of the motion, however, the Court is required to view the ambiguity in the light most favorable to the
non-movants, which it does.
Mallinckrodt and U.S. Surgical object to paragraph 52 of Mr. Wyman’s statement of material
facts on the grounds that it is an “inappropriate compound statement of material fact that fails to
conform with D. Me. Local Rule 56(b).” The Court agrees that paragraph 52 technically violates the
local rule but it overrules Mallinckrodt and U.S. Surgical’s objection as they were fully able to respond.
48
Mr. Wyman’s paragraph 53 presents these comments as a finding by the Court in the Federal
RCRA Case. PSMF ¶ 53. Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 53, pointing
out that the Court’s statement was not—as Mr. Wyman stated—a factual finding, but rather was
“made in the context of the Court commending the Study Panel and the parties’ expert witnesses” and
therefore “[u]se of subjective language was appropriate in that context but does not have a tendency
to make a fact more or less probable in the instant case . . ..” DRPSMF ¶ 53. The Court agrees that
this language did not constitute a factual finding in the Federal RCRA Case, reflecting instead the
Court’s summation of the Study Panel Report. See Me. People’s All. v. HoltraChem Mfg. Co., No. 1:00cv-00069-JAW, 2015 WL 5155573, at *19 (D. Me. Sept. 2, 2015) (Order on Remediation Plan)
(discussing “discharge[s] of . . . enormous volumes of mercury” in paragraph that begins, “[a]ccording
to the Study Panel Report”). The Court therefore altered the language of paragraph 53 to more
accurately reflect the record. However, the Court rejects Mallinckrodt and U.S. Surgical’s request to
strike on the basis of Federal Rules of Evidence 401-403. DRPSMF ¶ 53. Having issued the order
cited by Mr. Wyman, the Court is not concerned it will be confused about what it wrote or that the
possibility of its being confused about language it authored will be unduly prejudicial in ruling on this
motion.

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Penobscot River. 49 PSMF ¶ 54; DRPSMF ¶ 54. As of 2002, mercury concentrations
in the Penobscot River estuary ranked among the highest in Maine and on the upper
end of mercury concentrations anywhere in the United States. 50

PSMF ¶ 55;

DRPSMF ¶ 55. The evidence was clear in the Federal RCRA Case that the Orrington
Plant has been a dominant source of mercury contamination of the Penobscot River
over its lifetime. 51 PSMF ¶ 56; DRPSMF ¶ 56. As of 2002, any contribution of
mercury to the Penobscot River estuary by sources other than Mallinckrodt’s
Predecessor was indivisible from that which Mallinckrodt’s Predecessor was
responsible for. 52 PSMF ¶ 57; DRPSMF ¶ 57.

Mallinckrodt and U.S. Surgical qualify paragraph 54 of Mr. Wyman’s statement of material
facts to include the beginning of the sentence quoted by Mr. Wyman. DRPSMF ¶ 54. The Court
reviewed the cited portion of the record and, for the reasons discussed in footnote 48, supra, the Court
altered the language of paragraph 54.
50
Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 55, pointing out that the
portion of the record cited by Mr. Wyman was written in 2002, and so any statement comparing
mercury concentrations in the Penobscot River to other areas must necessarily be bounded in time.
DRPSMF ¶ 55. The Court reviewed the cited portion of the record, agrees with Mallinckrodt and U.S.
Surgical, and altered paragraph 55 to more accurately reflect the record.
51
Paragraph 56 of Mr. Wyman’s statement of material facts reads, “The evidence was clear [in
the Federal RCRA Case] that Mallinckrodt has been the dominant source of mercury contamination
of the Penobscot River estuary.” PSMF ¶ 56. Mallinckrodt and U.S. Surgical deny paragraph 56,
arguing that it “misquotes Judge Carter’s Decision” and that “[t]he trial testimony Judge Carter cited
when he referred to Mallinckrodt as ‘a dominant source of mercury in the Penobscot River’ referred to
operations of the plant over its lifetime and was not limited to pre-1982 operations under”
Mallinckrodt’s Predecessor’s ownership. DRPSMF ¶ 56. The Court reviewed the cited portions of the
record and, on this motion for summary judgment, agrees with the non-movants Mallinckrodt and U.S.
Surgical on both counts. The Court altered paragraph 56 to more accurately reflect the record.
52
Paragraph 57 of Mr. Wyman’s statement of material facts reads, “Any contribution of mercury
to the Penobscot River estuary by sources other than Mallinckrodt[‘s Predecessor] is indivisible from
that which Mallinckrodt[‘s Predecessor] is responsible for.” PSMF ¶ 57. Mallinckrodt and U.S.
Surgical deny this statement, arguing that “[t]echnology has developed since Judge Carter’s 2002
Decision to allow scientists to pinpoint the sources of mercury through a chemical analysis of mercury
isotopes.” DRPSMF ¶ 57. The Court reviewed the cited portions of the record and, on this motion for
summary judgment, agrees with the non-movants Mallinckrodt and U.S. Surgical. Mallinckrodt and
U.S. Surgical have admissible evidence that mercury contributions are divisible and the Court is
required to view that evidence in the light most favorable to Mallinckrodt and U.S. Surgical. The
Court altered Mr. Wyman’s paragraph 57 to more accurately reflect the record.
49

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The Penobscot River estuary continues to suffer from ongoing mercury
contamination caused at least in part by Mallinckrodt’s Predecessor. 53 PSMF ¶ 58;
DRPSMF ¶ 58. Despite the passage of time since Judge Carter’s 2002 decision, and
within the context of the Federal RCRA Case, the Penobscot River estuary remains
unacceptably contaminated with mercury. 54 PSMF ¶ 59; DRPSMF ¶ 59. Also, within
the context of the Federal RCRA Case, the risk from this contamination by
Mallinckrodt’s Predecessor is ongoing and, according to the Study Panel’s Phase II
Report, will continue for a long duration in the absence of remediation. 55 PSMF ¶ 60;
DRPSMF ¶ 60.
Paragraph 58 of Mr. Wyman’s statement of material facts states, “The Penobscot River estuary
‘continues to suffer . . . from ongoing mercury contamination caused by Mallinckrodt.’” PSMF ¶ 58.
Mallinckrodt and U.S. Surgical qualify this paragraph, objecting on the grounds that “the term
‘mercury contamination’ is vague and undefined” and that their “responsibility for mercury
contamination needs to be defined relative to background concentrations, which are high in the
Penobscot River estuary.” DRPSMF ¶ 58. Subject to this objection, Mallinckrodt and U.S. Surgical
admit the paragraph. DRPSMF ¶ 58. The Court reviewed the cited portions of the record and altered
paragraph 58 to reflect Mallinckrodt and U.S. Surgical’s concern regarding the background
concentrations of mercury in the Penobscot River estuary.
54
Paragraph 59 of Mr. Wyman’s statement of material facts states, “Despite the passage of time
since Judge Carter’s Decision, ‘the Penobscot River estuary remains unacceptably contaminated with
mercury,’ a ruling described as updating and reiterating Judge Carter Decision.” PSMF ¶ 59.
Mallinckrodt and U.S. Surgical qualify this paragraph, “deny[ing] that the Penobscot River is
unacceptably contaminated” with respect to the issues in this case because the statement cited by Mr.
Wyman “came in the context of the [Federal RCRA Case] Court’s irreparable harm analysis” and the
Court “made no finding regarding public health risks from consumption of lobster or crab.” DRPSMF
¶ 59. Because the Court concludes that the standards are different for the claims brought by Mr.
Wyman and the claims brought in the Federal RCRA Case, see Section V.A.2, infra, the Court altered
Mr. Wyman’s paragraph 59 to clarify that it refers only to the Federal RCRA Case.
55
Mallinckrodt and U.S. Surgical qualify paragraph 60 of Mr. Wyman’s statement of material
facts, which states, “The risk from this contamination by Mallinckrodt[‘s Predecessor] is ongoing and
will continue for a long duration in the absence of remediation.” PSMF ¶ 60. In large part, the
qualification tracks Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph 59, and
the Court altered paragraph 60 to reflect that it refers only to the Federal RCRA Case for the reasons
expressed in footnote 54, supra. Mallinckrodt and U.S. Surgical also state that the record citations
offered by Mr. Wyman provide support only for the notion that the Study Panel’s Phase II Report
concluded that the risk posed by contamination would continue for a long duration absent remediation.
DRPSMF ¶ 60. The Court reviewed the cited portions of the record, agrees with non-movants
Mallinckrodt and U.S. Surgical, and altered paragraph 60 to make clear that it is the Study Panel’s
Phase II Report that concluded the risk posed by contamination would be of long duration absent
remediation.
53

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On July 18, 2013, Special Master Susan Calkins issued a scheduling order in
the Federal RCRA Case which referred to the Study Panel’s Phase II Report as “the
critical document in this case;” the schedule was based on the dates the report was
filed and the parties filed their challenges. DSAMF ¶¶ 113-14; PRDSAMF ¶¶ 11314. The scheduling order allowed for discovery only from the Study Panel and set a
March 31, 2014, trial date. DSAMF ¶ 115; PRDSAMF ¶ 115. By January of 2014,
both parties acknowledged that the scheduling order’s timeframe was too tight and
sought additional time. DSAMF ¶ 116; PRDSAMF ¶ 116. On February 2, 2014, still
weeks before the Maine DMR’s first fishery closure, the Court permitted a modest
extension and noted that the case had been pending long enough for the attorneys to
be prepared for trial and that there was a significant public interest in resolving the
lawsuit. DSAMF ¶ 117; PRDSAMF ¶ 117.
In a February 28, 2014, telephone conference in the Federal RCRA Case, the
Court dismissed without prejudice the parties’ written objections to the Phase II
Report as superfluous, stating that “the very nature of this is that the objections will
be presented and the parties will have a right to argue their objections during the
course of the [Phase II] hearing.” DSAMF ¶ 118 (alteration in original); PRDSAMF
¶ 118. In remarks at the outset of the Phase II trial in the Federal RCRA Case, the
Court framed the issues in terms of the Phase II Report by asking the parties to
advise the Court as to which portion of the report each witness would be covering and
tying the focus of the proceedings to the Study Panel’s “detailed report with findings
and recommendations.” DSAMF ¶ 119; PRDSAMF ¶ 119. The parties’ witness lists

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in the Federal RCRA Case’s Phase II trial did not include any individuals from the
state agencies involved in the Maine DMR’s Zone D lobster fishery closure. DSAMF
¶ 120; PRDSAMF ¶ 120.
D.

Effects of Mercury Contamination

Bacteria in the Penobscot River estuary are converting mercury into
methylmercury, an organic form of mercury that enters and persists in the bodies of
animals and human beings exposed to it for a period of time. 56 PSMF ¶ 61; DRPSMF
¶ 61. Methylmercury bioaccumulates in biota and biomagnifies in the food chain,
becoming more concentrated as it passes from prey to predator. PSMF ¶ 62; DRPSMF
¶ 62.

It does not break down over time, and the methylation of mercury is a

continuous process that can go on for decades or longer—creating the most severe
adverse impacts downstream of the original mercury source.

PSMF ¶¶ 63-64;

DRPSMF ¶¶ 63-64.
Methylmercury is a highly toxic substance with adverse health effects
associated with exposure to humans above certain thresholds. 57

PSMF ¶ 65;

DRPSMF ¶ 65. Below these thresholds, there is minimal risk of deleterious effects.
DSAMF ¶ 45; PRDSAMF ¶ 45. Methylmercury, even in low dosages above those
thresholds, is inimical to human health; it attacks the nervous system, the kidneys,

Mallinckrodt and U.S. Surgical admit Mr. Wyman’s paragraph 61 except to the extent it
implies that methylmercury persists indefinitely in the bodies of humans and animals. DRPSMF ¶ 61.
The Court reviewed the cited portions of the record, agrees with Mallinckrodt and U.S. Surgical, and
altered paragraph 61 to reflect Mallinckrodt and U.S. Surgical’s qualification.
57
Mallinckrodt and U.S. Surgical admit Mr. Wyman’s paragraph 65 except to the extent it
implies adverse health effects are associated with any degree of exposure. DRPSMF ¶ 65. The Court
reviewed the cited portions of the record, agrees with Mallinckrodt and U.S. Surgical, and altered
paragraph 65 to reflect Mallinckrodt and U.S. Surgical’s qualification.
56

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the immune system, and the reproductive system, and it is extremely toxic to the
developing brain in fetuses and young children. 58 PSMF ¶ 66; DRPSMF ¶ 66. The
most common source for methylmercury exposure to humans comes from eating fish
and shellfish; when a person eats fish or shellfish with high methylmercury
concentration levels, the mercury is nearly completely absorbed through the digestive
process. PSMF ¶¶ 67-68; DRPSMF ¶¶ 67-68. The mercury is taken up into the blood
and circulated throughout the body, including penetration of the brain. 59 PSMF ¶
69; DRPSMF ¶ 69. Once ingested, methylmercury stays in the body for several
months, though in approximately forty-five days, humans lose about fifty percent of
mercury levels that existed directly after ingestion. 60 PSMF ¶¶ 70-71; DRPSMF ¶¶
70-71. Some level of mercury is present in all seafood, but it is not a concern for
human health unless it reaches a certain threshold level. 61 DSAMF ¶ 46; PRDSAMF
¶ 46. Given the public health benefits of seafood, neither the Maine CDC nor the
Maine DMR wants to stop people from consuming seafood merely because it contains
some mercury. 62 DSAMF ¶ 47; PRDSAMF ¶ 47. The mercury contamination of the

Mallinckrodt and U.S. Surgical make largely the same qualification to paragraph 66 of Mr.
Wyman’s statement of material facts as they make to paragraph 65. DRPSMF ¶ 66; see also Footnote
57, supra. The Court altered paragraph 66 to reflect Mallinckrodt and U.S. Surgical’s qualification.
59
Mallinckrodt and U.S. Surgical qualify paragraph 69 of Mr. Wyman’s statement of material
facts to the extent it implies that methylmercury persists in the human body indefinitely. DRPSMF
¶ 69. The Court reviewed the cited portions of the record, agrees with Mallinckrodt and U.S. Surgical,
and altered paragraph 69 to reflect Mallinckrodt and U.S. Surgical’s qualification.
60
In light of the Court’s decision to combine Mr. Wyman’s paragraphs 70 and 71, the Court
regards Mallinckrodt and U.S. Surgical’s qualification of paragraph 70 as moot. See DRPSMF ¶ 70.
61
The Court regards Mr. Wyman’s qualification of paragraph 46 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶¶ 70-71, and rejects the qualification for the reasons expressed in
footnote 8, supra.
62
The Court regards Mr. Wyman’s qualification of paragraph 47 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
58

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Penobscot River estuary caused by Mallinckrodt’s Predecessor poses a substantial
risk of harm to humans exposed to it. 63 PSMF ¶ 72; DRPSMF ¶ 72.
E.

The 2014 and 2016 Fishery Closures

Upon receipt of the Phase II Report, the Maine DMR reviewed the data
concerning mercury levels in lobsters and crabs indicating that they may have levels
that exceed the Maine CDC FTALs, possibly warranting a consumption advisory for
sensitive populations. 64 PSMF ¶ 73; DRPSMF ¶ 73. The Maine DMR requested
analysis of this data by the State Toxicologist and the Maine DEP staff. PSMF ¶ 74;
DRPSMF ¶ 74. Based in part on the analysis of the extent of the mercury levels in
the estuary by the State Toxicologist and the Maine DEP, effective as of February 22,
2014, the Maine DMR closed the area from Wilson Point to the Fort Point Lighthouse
on Cape Jellison (the 2014 Closure) to fishing for lobster and crab on an emergency

in the statement, PRDSAMF ¶ 47, and rejects the qualification for the reasons expressed in footnote
8, supra.
63
Mallinckrodt and U.S. Surgical deny the portion of paragraph 72 of Mr. Wyman’s statement
of material facts that reads “as evidenced by the closure of fishing grounds by MDMR in 2014,” PSMF
¶ 72, as lacking in record support. DRPSMF ¶ 72. The Court reviewed the portion of the record cited
by Mr. Wyman, agrees with non-movants Mallinckrodt and U.S. Surgical that it does not provide
support for the inference that the Court in the Federal RCRA Case found that the fishery closures
were evidence that mercury contamination posed a risk of harm to exposed humans, and excised this
portion of paragraph 72 from its recitation of the undisputed facts.
64
Paragraph 73 of Mr. Wyman’s statement of material facts reads:
Upon the receipt of the PRMS, the Maine [DMR] reviewed the data concerning mercury
levels in lobsters and crabs indicating that they may have levels that exceed the Maine
[CDC FTALs] warranting a consumption advisory for sensitive populations, as set
forth in the Bureau of Health [FTALs] . . ..
PSMF ¶ 73. Mallinckrodt and U.S. Surgical qualify this statement, pointing out that “[t]he FTAL is
intended as a guide and does not automatically trigger a consumption advisory or other action,” as it
is “the level at which decision-makers begin considering whether any action should be taken . . ..”
DRPSMF ¶ 73. For this proposition, Mallinckrodt and U.S. Surgical cite paragraph 65 of Mallinckrodt
and U.S. Surgical’s statement of additional material facts, DSAMF ¶ 65, which Mr. Wyman admits.
PRDSAMF ¶ 65. The Court therefore agrees with Mallinckrodt and U.S. Surgical regarding its
qualification of Mr. Wyman’s paragraph 73 and altered the paragraph accordingly.

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basis to—in part—protect public health due to the risk of mercury contamination in
lobsters and crabs. 65 PSMF ¶ 75; DRPSMF ¶ 75.
The emergency rule for the 2014 Closure was made permanent on May 19,
2014. PSMF ¶ 76; DRPSMF ¶ 76. As justification for the 2014 Closure, the Maine
DMR expressly referred to the PRMS. PSMF ¶ 77; DRPSMF ¶ 77. The basis
statements for the 2014 Closure explained that there was less data available for crabs
than lobsters but that it would be difficult to enforce a closure for lobster and not
crab, as the gear is the same. 66 PSMF ¶ 78; DRPSMF ¶ 78. The Maine DMR’s

Paragraph 75 of Mr. Wyman’s statement of material facts reads, “Based on the analysis of the
extent of the mercury levels in the estuary by the State Toxicologist and the [Maine] DEP, effective as
of February 22, 2014, [the Maine] DMR closed the area from Wilson Point to the Fort Point Lighthouse
on Cape Jellison to fishing for lobster and crab on an emergency basis to ‘protect [the] public health
due to the risk of mercury contamination in lobsters and crabs.’” PSMF ¶ 75. Mallinckrodt and U.S.
Surgical admit that protection of public health was one reason for Maine DMR’s closure decision but
deny that it was the sole reason, and further deny “that the consumption of lobster or crabs from the
closed area posed a public health risk.” DRPSMF ¶ 75.
The Court overrules the denial that consumption posed a public health risk. The Court does
not regard Mr. Wyman’s paragraph 75 as merely reciting the Maine DMR’s purported justification for
the closures rather than asserting its truth. However, the Court did alter paragraph 75 to reflect nonmovants Mallinckrodt and U.S. Surgical’s assertion that public health was only one of the reasons for
the Maine DMR’s closure decision. For this proposition, Mallinckrodt and U.S. Surgical cite
paragraphs 92 through 105 of Mallinckrodt and U.S. Surgical’s statement of additional material facts.
DRPSMF ¶ 75. The first two of these paragraphs, which Mr. Wyman admits, see PRDSAMF ¶¶ 9293, state that “[a] number of factors influenced the [Maine] DMR’s decisions to implement the fishery
closures,” DSAMF ¶ 92, and “[i]n considering whether to take a management action related to mercury
concentrations in lobsters and crabs in Zone D, the [Maine] DMR was concerned about the public’s
perception of the Maine lobster market as a whole and consumer confidence in Maine lobster.” DSAMF
¶ 93. The Court regards these two admitted statements as supporting Mallinckrodt and U.S.
Surgical’s partial denial of paragraph 75.
66
Mr. Wyman’s paragraph 78 states, “The Basis Statements for the first [Maine] DMR closure
explained that there was less data available for crabs, but there was still a concern about
contamination levels for crabs . . . and, in the Basis Statement of the permanent rule, it was added
that ‘it would be difficult to enforce a closure for lobster and not crab, as the gear is the same.’” PSMF
¶ 78 (emphasis omitted). Mallinckrodt and U.S. Surgical qualify that portion of paragraph 78 which
states “there was still a concern about contamination levels for crabs,” arguing that the basis
statements only indicate that crab harvesting was being closed as a precautionary measure and
because it would otherwise be difficult to enforce a lobster closure. DRPSMF ¶ 78. The Court reviewed
the cited portions of the record, agrees with Mallinckrodt and U.S. Surgical, and altered Mr. Wyman’s
paragraph 78 to more accurately reflect the record.
65

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response to comments on the 2014 Closure partially explained the basis for the rule
as follows:
The level of mercury in fin fish that warrants consideration of a
consumption advisory by the [Maine CDC] for the most sensitive
population is 200 nanograms (a billionth of a gram) of methylated
mercury per gram of tissue and is the corresponding mercury level in
edible tissue that if consumed at a rate of 8 oz per week by an adult will
exceed the [United States Environmental Protection Agency (EPA)]
toxicity value. The [United States Food and Drug Administration]
action level is for regulatory purposes and is not a comparable value. At
the 200 ng/g level, no more than one 8-ounce meal per week for pregnant
and nursing women, and children under the age of 8 is recommended.
Two average size whole lobsters would yield approximately 8 ounces of
meat. There is currently no lobster-[]specific action level and therefore
the State Toxicologist and [the Maine] DMR used the fin fish action
levels in making a determination for this action.
The intent of the closure was to ensure that consumers will feel
confident that they can continue to eat Maine lobster safely, regardless
of the location where it was caught. Due to the inability to trace specific
locations of harvest in the fishery, such as the proposed closure, [the
Maine] DMR believes that the closure is the most effective way to ensure
public health is protected while having the least impact on the lobster
supply chain and markets. 67
PSMF ¶ 79; DRPSMF ¶ 79. The Court in the Federal RCRA Case accepted the 2014
Closure as directly related to the level of mercury in the Penobscot River estuary and

Mallinckrodt and U.S. Surgical admit that paragraph 79 of Mr. Wyman’s statement of material
facts is an accurate reflection of the Maine DMR’s response to a public comment on the 2014
rulemaking which rendered the first closure permanent; however, they qualify the paragraph,
“deny[ing] that this response provides a complete and accurate statement of the purpose or meaning
of Maine’s F[TAL] or the intent behind the closure.” DRPSMF ¶ 79. The Court regards this
qualification as argument outside the scope of the facts asserted in the statement and rejects it for the
reasons expressed in footnote 8, supra. However, as the Court already found on this motion for
summary judgment that the Maine DMR had a variety of reasons for the 2014 Closure, see Footnote
65, supra, the Court altered paragraph 79 to reflect that this response provided only a partial
explanation from the Maine DMR.
67

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viewed the closure as a game-changer on whether the injury suffered by the
Penobscot River estuary was irreparable. 68 PSMF ¶ 80; DRPSMF ¶ 80.
After the 2014 Closure, the Maine DMR sent letters to Mr. Wyman and others
dated March 4, 2014, acknowledging that the closure would significantly impact
fishermen who fished in the closed area. 69 PSMF ¶ 81; DRPSMF ¶ 81. Additionally,
the Maine DMR, together with the Maine DEP and Maine CDC, initiated an
independent two-year sampling study to confirm the results of the PRMS. 70 PSMF
¶ 82; DRPSMF ¶ 82. One year of results from this 2014 sampling study showed levels
of mercury in lobsters sampled from the 2014 Closure area and south of the 2014
Closure greater than mercury levels reported in the PRMS; mercury levels in crab

Mr. Wyman’s paragraph 80 states that the Court in the Federal RCRA Case “held that the
first closure was ‘directly related to the level of mercury in the Penobscot estuary . . . .’ and declared
that ‘[t]he Court views the [Maine] DMR closure from lobstering and crabbing of a large area at the
mouth of the Penobscot Bay as a game-changer’ on the issue of the public health risks created by
Mallinckrodt’s contamination of the Penobscot River estuary.” PSMF ¶ 80 (some alterations in
original). Mallinckrodt and U.S. Surgical deny this statement, arguing that it mischaracterizes the
Court’s decision in the Federal RCRA Case. DRPSMF ¶ 80. Mallinckrodt and U.S. Surgical assert
that that decision “states that the Court ‘accepts’ the first closure ‘as directly related to the level of
mercury in the Penobscot estuary,’” and that “[t]he Court viewed the closure ‘as a game-changer’ on
the issue of whether the injury suffered by the Penobscot River estuary was irreparable.” DRPSMF ¶
80. The Court reviewed the cited portions of the record, agrees with Mallinckrodt and U.S. Surgical
that Mr. Wyman incorrectly characterized the Court’s decision in the Federal RCRA Case, and altered
paragraph 80 to more accurately reflect the record.
69
Mr. Wyman’s paragraph 81 reads, “After the first closure, [the Maine] DMR sent letters dated
March 4, 2014 to commercial fishermen impacted by the first closure further explaining the reasons
for the closure and acknowledging that such fishermen would likely suffer therefrom.” PSMF ¶ 81.
Mallinckrodt and U.S. Surgical qualify this statement, asserting that the record “does not establish to
whom the letters were sent other than to Kenneth Wyman” and does not support the statement that
fishermen would likely suffer as a result of the closure. DRPSMF ¶ 81. The Court reviewed the cited
portion of the record and agrees with non-movants Mallinckrodt and U.S. Surgical. The Court altered
paragraph 81 to more accurately reflect the record.
70
The Court regards Mallinckrodt and U.S. Surgical’s qualification of paragraph 82 of Mr.
Wyman’s statement of material facts as argument outside the scope of the facts asserted in the
statement, DRPSMF ¶ 82, and rejects the qualification for the reasons expressed in footnote 8, supra.
The Court does, however, note its agreement with Mallinckrodt and U.S. Surgical that the 2014
sampling report contains only one year of results. DRPSMF ¶ 82. The Court altered paragraph 82 to
reflect this clarification.
68

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were found to be lower than expected based on previous PRMS results. 71 PSMF ¶ 83;
DRPSMF ¶¶ 82-83.
Subsequently, effective June 21, 2016, in part as a result of the 2014 sampling
report, on an emergency basis, the Maine DMR expanded the closure southwards for
both lobsters and crabs to a line starting in Castine, Maine, and going to Squaw Point
on Cape Jellison in Stockton Springs, Maine (2016 Closure). 72 PSMF ¶ 84; DRPSMF
¶ 84.

This change was made permanent on November 15, 2016.

PSMF ¶ 84;

DRPSMF ¶ 84. The explanation given by the Maine DMR for the 2016 Closure was
essentially the same as that given for the 2014 Closure, except for the expanded area
where elevated mercury levels were found in lobsters relative to those reported in the
PRMS. 73 PSMF ¶ 85; DRPSMF ¶ 85.
Mr. Wyman’s paragraph 83 reads:
The results of the 2014 Sampling Report showed elevated levels of mercury in lobsters
sampled from the first closure area and also elevated levels from lobsters sampled
south of the first closure greater than mercury levels reported in the PRMS. . . .
Mercury in crabs were found to be lower than expected based on previous PRMS
results.
PSMF ¶ 83. Mallinckrodt and U.S. Surgical qualify this statement, objecting that “the term ‘elevated’
. . . is a vague and relative term and its meaning is unclear in this context.” DRPSMF ¶ 83. As
paragraph 83 makes clear that “elevated” is used in relation to mercury levels reported by the PRMS,
the Court disagrees with Mallinckrodt and U.S. Surgical that its meaning is unclear; however, the
Court does not regard the word “elevated” as additive to the point Mr. Wyman is making in paragraph
83, as the comparison to the PRMS mercury levels makes clear that the mercury levels in the sampled
lobsters were elevated.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification of
paragraph 83 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 83,
and rejects the remainder of the qualification for the reasons expressed in footnote 8, supra.
72
Mallinckrodt and U.S. Surgical deny that the 2014 sampling report “was the sole reason for
the expanded closure” but otherwise admit paragraph 84 of Mr. Wyman’s statement of material facts.
DRPSMF ¶ 84. For the reasons expressed in footnote 65, supra, the Court agrees with Mallinckrodt
and U.S. Surgical and altered paragraph 84 to reflect their qualification.
73
Mallinckrodt and U.S. Surgical admit the majority of paragraph 85 of Mr. Wyman’s statement
of material facts but deny that the long quote included in paragraph 85 is supported by the provided
record citation and object once again to Mr. Wyman’s use of the word “elevated.” DRPSMF ¶ 85. As
before, the Court altered paragraph 85 of Mr. Wyman’s statement of material facts to clarify that
“elevated” is in comparison to the levels reported by the PRMS. Additionally, the Court reviewed the
cited portion of the record and agrees with Mallinckrodt and U.S. Surgical that the quote used by Mr.
71

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After the 2016 Closure, the Maine DMR—in conjunction with the Maine
CDC—undertook an analysis of samples of lobsters and crabs taken from the closed
areas of the Penobscot River estuary in 2015 to further assess the need for a
continuation of the closures. 74 PSMF ¶ 86; DRPSMF ¶ 86. The State Toxicologist’s
analysis of the incomplete 2015 data collection showed that mercury levels in lobsters
in the closed areas remained high and that at some of the measuring points just south
of the Orrington Plant, crabs showed mercury levels in excess of the FTAL. 75 PSMF
¶ 87; DRPSMF ¶ 87. As of now, there is no pending decision at the Maine DMR to
change the status of either the 2014 or the 2016 Closure with regard to crabs. 76 PSMF
¶ 88; DRPSMF ¶ 88.

Wyman is not included there. The Court therefore did not include the quote in its recitation of the
undisputed facts. In light of this decision by the Court, the remainder of Mallinckrodt and U.S.
Surgical’s qualification of paragraph 85 is moot.
74
The Court regards Mallinckrodt and U.S. Surgical’s qualification of Mr. Wyman’s paragraph
86 as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 86, and rejects
the qualification for the reasons expressed in footnote 8, supra.
75
Mallinckrodt and U.S. Surgical qualify paragraph 87 of Mr. Wyman’s statement of material
facts, asserting that “[t]he 2015 data collection and report is incomplete” and that “[n]o conclusions
were made from the 2015 data, and the M[aine] CDC cautioned against doing so without further
analysis because there were issues with sample size.” DRPSMF ¶ 87. With regard to the status of the
2015 data collection and report as incomplete, the Court reviewed the cited portion of the record and
agrees with the non-movants Mallinckrodt and U.S. Surgical. With regard to the statement that no
conclusions were made from the 2015 data, however, the Court notes that Mallinckrodt and U.S.
Surgical did not make the portion of the record they cited available to the Court. The Court altered
paragraph 87 to reflect the first qualification but not the second, which the Court finds Mallinckrodt
and U.S. Surgical waived.
The Court regards the remainder of Mallinckrodt and U.S. Surgical’s qualification of
paragraph 87 of as argument outside the scope of the facts asserted in the statement, DRPSMF ¶ 87,
and rejects that portion of the qualification for the reasons expressed in footnote 8, supra.
76
Paragraph 88 of Mr. Wyman’s statement of material facts reads, “At this time, there is no
pending decision at [the Maine] DMR to change the status of either closures.” PSMF ¶ 88.
Mallinckrodt and U.S. Surgical qualify this statement, arguing that the cited portions of the record
only support the statement that there is no pending decision with respect to crabs. DRPSMF ¶ 88.
The Court reviewed the cited portions of the record and, taking all reasonable inferences in favor of
the non-movants, agrees with Mallinckrodt and U.S. Surgical. The Court revised paragraph 88
accordingly.

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The Maine DMR does not have in-house expertise regarding toxicology or the
public health implications of mercury contamination, and it defers to the Maine CDC
to advise it on those issues. DSAMF ¶ 39; PRDSAMF ¶ 39. Since 1996, Dr. Andy
Smith has been the State Toxicologist with the Maine CDC; it is his job to consult
with other state agencies and provide advice regarding toxicology and risk
assessment. 77 DSAMF ¶¶ 40-41; PRDSAMF ¶¶ 40-41. The Maine CDC does not
have any decision-making authority when it consults with other state agencies.
DSAMF ¶ 42; PRDSAMF ¶ 42. The Maine CDC thinks of risk in terms of toxicity
and exposure and believes that risk assessments should take both of those into
account. 78 DSAMF ¶ 44; PRDSAMF ¶ 44. The Maine CDC consulted with the Maine
DMR regarding closures of portions of the lobster and crab fisheries in Lobster
Management Zone D but did not have decision-making authority with respect to those
closures. DSAMF ¶ 43; PRDSAMF ¶ 43. Average mercury levels in lobsters in the
area covered by the 2014 and 2016 Closures (Closure Area) are comparable to average
mercury concentrations in other seafood available on the market such as canned
tuna, and less than half the mercury concentrations of other seafood available on the
market such as swordfish. 79 DSAMF ¶ 48; PRDSAMF ¶ 48.

The Court regards Mr. Wyman’s qualifications of paragraphs 40 and 41 of Mallinckrodt and
U.S. Surgical’s statement of additional material facts as argument outside the scope of the facts
asserted in the statement, PRDSAMF ¶¶ 40-41, and rejects the qualifications for the reasons
expressed in footnote 8, supra.
78
The Court regards Mr. Wyman’s qualification of paragraph 44 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 44, and rejects the qualification for the reasons expressed in footnote
8, supra.
79
The Court regards Mr. Wyman’s qualification of paragraph 48 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
77

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Dr. Smith was involved with developing Maine’s FTAL.

PageID #: 2469

DSAMF ¶ 49;

PRDSAMF ¶ 49. The FTAL was developed in the 1990s by the Maine Bureau of
Health, which is now the Maine CDC. DSAMF ¶ 50; PRDSAMF ¶ 50. The FTAL is
based in part on a reference dose, defined by the EPA “as an estimate (with
uncertainty spanning perhaps an order of magnitude) of a daily exposure level
(mk/kg-day) for the human population, including sensitive subpopulations, that is
likely to be without an appreciable risk of deleterious effects during a lifetime.” 80
DSAMF ¶ 51; PRDSAMF ¶ 51.
The reference dose, in turn, is based on the benchmark dose, which is the
amount of methylmercury in umbilical cord blood associated with the threshold for a
health effect on sensitive populations according to epidemiological studies of
mercury. 81 DSAMF ¶ 52; PRDSAMF ¶ 52. To derive the reference dose, the EPA
divided the benchmark dose by ten to account for uncertainty, meaning that the
reference dose is ten times lower than the lowest dose at which any deleterious effects
have been observed in epidemiological studies. DSAMF ¶ 52; PRDSAMF ¶ 52. To
derive the FTAL, the Maine Bureau of Health took the reference dose, multiplied it
by an assumed body weight for pregnant women, and then divided the product by an

in the statement, PRDSAMF ¶ 48, and rejects the qualification for the reasons expressed in footnote
8, supra.
80
Mr. Wyman qualifies paragraph 51 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, contending that the “reference dose is one element of the equation used to determine
the FTAL.” PRDSAMF ¶ 51. The Court reviewed the cited portions of the record, agrees with Mr.
Wyman, and altered additional paragraph 51 to more accurately reflect the record.
81
The Court regards Mr. Wyman’s qualification of paragraph 52 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 52, and rejects the qualification for the reasons expressed in footnote
8, supra. The Court does not view additional paragraph 52 as irrelevant or confusing.

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assumed fish consumption rate of one eight-ounce fish meal per week. 82 DSAMF
¶¶ 53-54; PRDSAMF ¶¶ 53-54. An average-size legal lobster contains approximately
three to four ounces of meat. DSAMF ¶ 55; PRDSAMF ¶ 55.
The FTAL’s assumed consumption rate is based on the ninety-fifth percentile
consumption rate of sportfish derived from surveys of recreational anglers and is
approximately

twenty-five

percent

higher

than

the

ninety-fifth

percentile

consumption rate of sportfish found in a survey of Maine anglers. 83 DSAMF ¶ 56;
PRDSAMF ¶ 56. This consumption rate is an assumption that may not apply in all
scenarios. DSAMF ¶ 57; PRDSAMF ¶ 57. Neither the Maine DMR nor the Maine
CDC had any lobster-specific consumption data available in considering whether to
implement a management action in Zone D. DSAMF ¶ 58; PRDSAMF ¶ 58. The
FTAL also assumes a bodyweight of sixty kilograms for women of childbearing age,
but the EPA now recommends assuming a bodyweight of sixty-eight kilograms for
women of childbearing age. 84 DSAMF ¶¶ 59-60; PRDSAMF ¶¶ 59-60.
The FTAL for methylmercury is 200 nanograms per gram. DSAMF ¶ 61;
PRDSAMF ¶ 61. One would need to repeatedly consume food exceeding the FTAL to

The Court regards Mr. Wyman’s qualifications of paragraphs 53 and 54 of Mallinckrodt and
U.S. Surgical’s statement of additional material facts as argument outside the scope of the facts
asserted in the statements, PRDSAMF ¶¶ 53-54, and rejects the qualifications for the reasons
expressed in footnote 8, supra.
83
The Court regards Mr. Wyman’s qualification of paragraph 56 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 56, and rejects the qualification for the reasons expressed in footnote
8, supra.
84
The Court regards Mr. Wyman’s qualification of paragraph 60 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 60, and rejects the qualification for the reasons expressed in footnote
8, supra.
82

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reach the blood-mercury level associated with the benchmark dose. 85 DSAMF ¶ 62;
PRDSAMF ¶ 62. Assuming consumption of eight ounces a week of food with a
mercury concentration of 400 nanograms per gram, Dr. Smith estimates that it would
take one or two months to exceed the reference dose. DSAMF ¶ 62; PRDSAMF ¶ 62.
At least one scientific study did not establish that short-term exceedances of the
reference dose have adverse health consequences. 86 DSAMF ¶ 63; PRDSAMF ¶ 63.
The FTAL was developed to apply to recreational-caught freshwater or
anadromous fish, and the Zone D lobster and crab fishing closure is one of only two
situations the Maine CDC is aware of in which it has been applied in a commercial
fishery. 87 DSAMF ¶ 64; PRDSAMF ¶ 64. The FTAL is intended as a guide and does
not automatically trigger a consumption advisory or other action; it is the level at
which decision-makers begin considering whether to take any action, and it could

Mr. Wyman qualifies this portion of paragraph 62 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts, pointing out that “Dr. Smith’s testimony concerned exceeding
the reference dose, not the benchmark dose.” PRDSAMF ¶ 62. Mr. Wyman is correct; however, the
benchmark dose is ten times higher than the reference dose, see DSAMF ¶ 52, so if this statement is
true of the reference dose, it is true of the benchmark dose. The Court rejects Mr. Wyman’s
qualification of additional paragraph 62.
86
Paragraph 63 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“Scientific studies have not established that short-term exceedances of the reference dose have adverse
health consequences.” DSAMF ¶ 63. Mr. Wyman qualifies this statement, noting that “Dr. Smith was
testifying about one published article and said that the article didn’t reach a conclusion about short
term exceedances of the reference dose.” PRDSAMF ¶ 63. The Court reviewed the cited portions of
the record, agrees with Mr. Wyman, and altered paragraph 63 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts to more accurately reflect the record.
87
Mr. Wyman qualifies paragraph 64 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, pointing out that “Dr. Smith testified about two situations in which it was applied to
commercially caught fish.” PRDSAMF ¶ 64. The Court reviewed the cited portions of the record,
agrees with Mr. Wyman, and altered paragraph 64 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts to more accurately reflect the record.
The Court regards Mr. Wyman’s further qualification of additional paragraph 64 as argument
outside the scope of the facts asserted in the statement, PRDSAMF ¶ 64, and rejects the qualification
for the reasons expressed in footnote 8, supra.
85

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lead to a variety of different management actions or no action at all. DSAMF ¶ 65;
PRDSAMF ¶ 65.
Since at least 2009, the Maine CDC has had a standing advisory in place for
all ocean fish and shellfish, advising that pregnant and nursing women, women who
may get pregnant, and children under eight years of age eat no more than two seafood
meals per week. 88 DSAMF ¶ 66; PRDSAMF ¶ 66. The state of Maine has a standing
mercury advisory in place for all freshwater rivers and lakes in the state,
recommending that people limit their consumption of fish from those bodies of water
to no more than two meals per week. 89 DSAMF ¶ 67; PRDSAMF ¶ 67. The Maine
DMR has jurisdiction over commercially caught fish with average mercury
concentrations that exceed the FTAL, such as bluefish, halibut, and lobsters in parts
of the Sheepscot River Estuary, but it has not closed those fisheries. 90 DSAMF ¶ 68;
PRDSAMF ¶ 68.
In giving advice to the Maine DMR, the Maine CDC did not consider
commercially harvested and consumed lobsters in the closure areas to pose a public

The Court regards Mr. Wyman’s qualification of paragraph 66 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 66, and rejects the qualification for the reasons expressed in footnote
8, supra.
89
Mr. Wyman qualifies paragraph 67 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, arguing that “[i]t is not clear from the testimony if the advisory for all freshwater rivers
and lakes is due to mercury . . ..” PRDSAMF ¶ 67. The Court reviewed the cited portion of the record
and disagrees with Mr. Wyman. The cited portion of the record comes in the context of testimony
about mercury levels in freshwater fish. See DSAMF, Attach. 4, Ex. 4: DMR Dep. Tr. Excerpts and
Exs. at 43:13-44:24 (Maine DMR Dep.). From this, the Court draws the inference on this motion for
summary judgment that the advisory discussed by the Maine DMR’s designee under Federal Rule of
Civil Procedure 30(b)(6) is a mercury advisory.
90
The Court regards Mr. Wyman’s qualification of paragraph 68 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 68, and rejects the qualification for the reasons expressed in footnote
8, supra.
88

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health concern, and the Maine CDC did not recommend a commercial advisory or
closure. 91 DSAMF ¶ 69; PRDSAMF ¶ 69. The Maine CDC merely recommended that
the Maine DMR consider whether an advisory was appropriate to account for the
possibility that certain recreational harvesters or commercial harvesters using their
catch for personal or household consumption might be catching a high percentage of
their product from discrete areas with high mercury concentrations. 92 DSAMF ¶ 70;
PRDSAMF ¶ 70. The Maine DMR does not have any data as to whether such
harvesters are indeed doing this. DSAMF ¶ 70; PRDSAMF ¶ 70. An advisory for
non-commercial lobster harvesting would have been health protective if it was
effectively communicated and people responded to it. 93 DSAMF ¶ 71; PRDSAMF
¶ 71. The 2014 confirmatory sampling conducted by the state of Maine did not show

The Court regards Mr. Wyman’s qualification of paragraph 69 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 69, and rejects the qualification for the reasons expressed in footnote
8, supra. The Maine CDC’s designee testified that lobsters from the closed area in the stream of
commerce did not pose a public health concern. See DSAMF, Attach. 5, Ex. 5: CDC Dep. Tr. Excerpts
and Exs. at 140:15-141:03. On this motion for summary judgment where Mallinckrodt and U.S.
Surgical are the non-movants, the Court regards this as sufficient record support to draw the inference
that the Maine CDC was not concerned that commercially harvested and consumed lobsters from the
closed areas posed a public health concern.
92
Mr. Wyman qualifies paragraph 70 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, asserting that “[t]he transcript pages cited do not address any advice given to [the
Maine] DMR from [the Maine] CDC.” PRDSAMF ¶ 70. The Court reviewed the cited portion of the
record and disagrees. The Maine DMR’s designee explicitly discusses the advice and recommendations
the Maine CDC gave to the Maine DMR. See Maine DMR Dep. at 94:06-17. Mr. Wyman also states
that “[t]he M[aine] CDC recommended that at a minimum . . . [the Maine] DMR consider a
consumption advisory for recreational fishing.” PRDSAMF ¶ 70 (emphasis omitted). This information
is already included in additional paragraph 70 and the Court will not repeat it.
93
Paragraph 71 of Mr. Wyman’s statement of material facts reads, “An advisory for noncommercial lobster harvesting would have been health protective.” DSAMF ¶ 71. Mr. Wyman
qualifies this statement, contending that Dr. Smith conditioned this on the advisory being wellcommunicated and people responding to it. PRDSAMF ¶ 71. The Court reviewed the cited portion of
the record, agrees with Mr. Wyman, and altered paragraph 71 to more accurately reflect the record.
91

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levels of concern for crabs. 94 DSAMF ¶ 72; PRDSAMF ¶ 72. Neither the Maine CDC
nor the Maine DMR is aware of any adverse health consequences caused by past
consumption of lobster or crab from the closure areas. 95 DSAMF ¶ 73; PRDSAMF
¶ 73.
The Maine DMR’s primary concern is the conservation of marine resources; it
is also concerned with the economic strength of Maine fisheries. 96 DSAMF ¶ 89;
PRDSAMF ¶ 89. Ultimately, the decision to implement the closures rested with a
single individual, Maine DMR Commissioner Patrick Keliher.
PRDSAMF ¶ 90.

DSAMF ¶ 90;

His decision to take management action was not statutorily

mandated and involved certain judgment calls, though protection of public health is
a part of his mandate. 97 DSAMF ¶ 91; PRDSAMF ¶ 91.

Paragraph 72 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“The confirmatory sampling conducted by the state did not show levels of concern for crabs.” DSAMF
¶ 72. Mr. Wyman qualifies additional paragraph 72, noting that the state conducted two separate
samplings, and while the 2014 sampling did not show levels of concern for crabs, the 2015 sampling
did. PRDSAMF ¶ 72. The Court reviewed the cited portions of the record, agrees with Mr. Wyman,
and altered paragraph 72 to more accurately reflect the record. The Court regards the remainder of
Mr. Wyman’s qualification of additional paragraph 72 as argument outside the scope of the facts
asserted in the statement, PRDSAMF ¶ 72, and rejects the remainder of the qualification for the
reasons expressed in footnote 8, supra.
95
The Court regards Mr. Wyman’s qualification of paragraph 73 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 73, and rejects the qualification for the reasons expressed in footnote
8, supra.
96
The Court regards Mr. Wyman’s qualification of paragraph 89 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 89, and rejects the qualification for the reasons expressed in footnote
8, supra.
97
Paragraph 91 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“His decision to take management action was not statutorily mandated and involved certain judgment
calls.” DSAMF ¶ 91. Mr. Wyman qualifies this statement, arguing that the Maine DMR’s designee
“qualified this statement by saying that the Commissioner does have an obligation to protect public
health which is part of his mandate.” PRDSAMF ¶ 91. The Court reviewed the cited portions of the
record, agrees with Mr. Wyman, and altered paragraph 91 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts to more accurately reflect the record. While on this motion for
summary judgment, the Court makes the inference that Commissioner Keliher’s closure decisions
94

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A number of factors influenced the Maine DMR’s decisions to implement the
fishery closures. DSAMF ¶ 92; PRDSAMF ¶ 92. In considering whether to take a
management action related to mercury concentrations in lobsters and crabs in Zone
D, the Maine DMR was concerned about the public’s perception of the Maine lobster
market and consumer confidence in Maine lobster. DSAMF ¶ 93; PRDSAMF ¶ 93.
Despite the lack of risk from commercial lobster consumption, the Maine DMR
believed that the primary impact of the 2014 Closure would fall on commercial
harvesters. 98 DSAMF ¶ 94; PRDSAMF ¶ 94. The small number of commercial lobster
and crab harvesters in the Closure Area was a factor in the Maine DMR’s decision to
implement the closures, as was the fact that the Closure Area has a limited, seasonal
lobster fishery. 99 DSAMF ¶¶ 95-96; PRDSAMF ¶¶ 95-96. Support from lobster
were not statutorily mandated, the Court agrees that the context that he is statutorily required to
consider public health is relevant and includes it.
98
Mr. Wyman qualifies paragraph 94 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, referring to paragraph 69 of his response to Mallinckrodt and U.S. Surgical’s statement
of additional facts and arguing that “[t]here is no testimony or evidence of a lack of risk from
commercial lobster consumption.” PRSDAMF ¶ 94. Because the Court reviewed additional paragraph
69 and found that the qualification offered by Mr. Wyman was not warranted, see footnote 91, supra,
the Court regards Mr. Wyman’s qualification of additional paragraph 94 as moot.
99
Paragraph 96 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“The closed area also has a limited, seasonal lobster fishery, which influenced the [Maine] DMR’s
decision to implement the closure.” DSAMF ¶ 96. Mr. Wyman qualifies this statement, contending
that it “is taken out of context and is misleading.” PRDSAMF ¶ 96. He expands on this argument as
follows:
For this statement and several others, [Mallinckrodt and U.S. Surgical] ha[ve] cherry
picked a few of the factors that [the Maine] DMR considered in the decision to
implement the closure. Ms. Mendelson [the Maine DMR’s designee] confirmed those
she was asked about, but the list is incomplete, and thus gives a skewed vision of the
decision-making process. The Administrative Record . . . speaks for itself. The factors
considered in implementing a closure are listed in the record and it is the best and
most complete evidence of why [the Maine] DMR acted as it did. The documents make
it clear that the primary concern of [the Maine] DMR was the need to take action to
protect the public regarding the risk of consuming lobster from this area and the only
question was how to most effectively and efficiently protect public health. There were
many factors that contributed to the final decision.
PRDSAMF ¶ 96. Mr. Wyman makes the same qualification to additional paragraphs 97, 98, and 100
through 103. PRDSAMF ¶¶ 97-98, 100-03. The Court responds to all these qualifications here.

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industry association leaders and dealers influenced the decision to implement the
closure; industry association leaders and dealers expressed their belief that lobster
marketability would be less adversely impacted by a closure than a consumption
advisory, which influenced the Maine DMR’s decision to implement a closure.
DSAMF ¶ 97; PRDSAMF ¶ 97.
The Maine DMR’s decision to implement a closure instead of an advisory was
further influenced by a 2008 lobster tomalley advisory that had far-reaching impacts
on the Maine lobster industry; the Maine DMR was particularly concerned about the
perception of Maine lobster in Asian markets, which are particularly sensitive to
advisories. DSAMF ¶ 98; PRDSAMF ¶ 98. The Maine DMR’s statutory authority for
regular rule-making requires that it consider numerous factors in adopting a rule,
including

the

impact

on

small

businesses,

economic

and

environmental

considerations, fiscal and social impact, and public comments; the Maine DMR took
these considerations into account in adopting its emergency rule-makings related to
the closures. DSAMF ¶ 99; PRDSAMF ¶ 99.
During the public comment period for the 2014 rulemaking closing a portion of
Zone D, there was little public opposition to the rulemaking, which was an important
factor in the Maine DMR’s decision to go forward with the rulemaking. DSAMF
¶ 100; PRDSAMF ¶ 100.

Similarly, during the public comment period for the

expanded closure in 2016, lobster industry trade associations came out in favor of the

The Court has reviewed the record citations provided by the parties and disregards Mr.
Wyman’s qualifications. The facts proffered by Mallinckrodt and U.S. Surgical have record support,
and as they are the non-movants on this motion for summary judgment, the Court is obligated to view
contested facts in the light most favorable to them.

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expanded closure in 2016, which influenced the Maine DMR’s decision to move
forward with the rulemaking.

DSAMF ¶ 101; PRDSAMF ¶ 101.

Issues of

enforcement also influenced the Maine DMR’s decision-making, including concerns
about where to locate the 2016 Closure line. DSAMF ¶¶ 102-03; PRDSAMF ¶¶ 10203.
Enforcement concerns were the driving force behind closure of the crab fishery.
DSAMF ¶ 104; PRDSAMF ¶ 104. Even though the Maine DMR did not have data to
show that levels of mercury in crabs were high at the time of the 2014 Closure, it did
not think that it could effectively enforce a closure for lobster but not crab fishing
because the gear for crab fishing is the same as the gear for lobster fishing; due to
this enforcement issue, it closed the area for both crab and lobster. 100 DSAMF ¶ 104;
PRDSAMF ¶ 104. To the Maine DMR’s knowledge, mercury levels in crab in the
Closure Area are not at levels that would warrant a consumption advisory, and the
levels in crabs would not warrant a closure absent the difficulty of enforcing a lobster
closure without also implementing a crab closure. 101 DSAMF ¶ 105; PRDSAMF
¶ 105.
Mr. Wyman qualifies paragraph 104 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts, arguing that “[s]amples of crabs in the P[RMS] showed mercury
concentrations of concern to the [Maine] DMR at the time of the first closure.” PRDSAMF ¶ 104. The
Court reviewed the cited portions of the record and disregards the qualification. The Maine DMR’s
designee testified to the contents of additional paragraph 104, see Maine DMR Dep. at 107:13-108:12,
and the Court does not regard the portions of the record cited by Mr. Wyman as contradictory.
The Court regards the remainder of Mr. Wyman’s qualification of additional paragraph 104 as
argument outside the scope of the facts asserted in the statement, PRDSAMF ¶ 104, and rejects the
remainder of the qualification for the reasons expressed in footnote 8, supra.
101
Mr. Wyman qualifies additional paragraph 105 by referring to paragraph 72 of his response to
Mallinckrodt and U.S. Surgical’s statement of additional material facts. PRDSAMF ¶ 105. The Court
disregards this qualification. Paragraph 72 of Mr. Wyman’s response to Mallinckrodt and U.S.
Surgical’s statement of additional material facts deals with whether there was data showing mercury
levels of concern for crabs, see Footnote 94, supra; additional paragraph 105 deals with whether there
100

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The Maine DMR did not consider any management actions other than an
advisory or a closure to address mercury concentrations in lobster. 102 DSAMF ¶ 106;
PRDSAMF ¶ 106. The Maine DMR also did not consider closing the Closure Area
only to recreational harvesting and determined that creating an advisory for only
recreational harvesting would be very difficult. 103 DSAMF ¶ 107; PRDSAMF ¶ 107.
The Maine DMR does not know how or whether any fisherman has been impacted by
the fishery closures. DSAMF ¶ 108; PRDSAMF ¶ 108.
Before 2013, both the Maine CDC and the Maine DMR were aware of past
mercury discharges from the Orrington Plant, yet neither agency had any reason to
foresee a lobster or crab fishery closure. 104 DSAMF ¶ 109; PRDSAMF ¶ 109. Neither

is data showing that mercury levels in crabs are high enough to warrant a consumption advisory. The
contents of paragraph 72 of Mr. Wyman’s response to Mallinckrodt and U.S. Surgical’s statement of
additional material facts are not inconsistent with additional paragraph 105, which is supported by
the cited portion of the record.
102
Mr. Wyman qualifies additional paragraph 106, noting that “[t]he testimony just prior to the
testimony cited concerned mercury levels in crabs, not lobster.” PRDSAMF ¶ 106. He goes on to say
that the Maine DMR’s designee “testified that at the time they determined that some management
action was warranted, advisory or closure were the two options that were considered.” PRDSAMF
¶ 106. The Court reviewed the cited portion of the record and disregards Mr. Wyman’s qualification.
The crab fishery closure was an add-on to the lobster fishery closure and was only undertaken because
it would otherwise have been difficult to enforce a lobster closure. There is no suggestion in the record
that the Maine DMR considered an advisory with respect to crab. See Maine DMR Dep. at 109:08-24.
Therefore, it is far more likely that the cited testimony of the Maine DMR’s designee referred to actions
considered with respect to lobster.
103
Paragraph 107 of Mallinckrodt and U.S. Surgical’s statement of additional material facts
reads, “[The Maine] DMR did not consider closing the now-closed area only to recreational harvesting
or an advisory for only recreational harvesting.” DSAMF ¶ 107. Mr. Wyman qualifies this paragraph,
arguing that the Maine DMR’s designee “testified that they did not consider closing the now closed
area only to recreational harvesting, but they did consider an advisory only for recreational fishing.
They determined that it would be a very difficult thing to do, given that there’s no mandate about
where recreational harvesters set their gear.” PRDSAMF ¶ 107. The Court reviewed the cited portions
of the record, agrees with Mr. Wyman, and altered paragraph 107 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts to more accurately reflect the record. The cited testimony
confirms that the Maine DMR considered this option and disregarded it as difficult. See Maine DMR
Dep. at 110:19-111:06.
104
The Court regards Mr. Wyman’s qualification of paragraph 109 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 109, and rejects the qualification for the reasons expressed in footnote

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the Maine DMR nor the Maine CDC is aware of any occasion other than these closures
in which a Maine state agency has closed a fishery based on concentrations of a
contaminant other than bacteria or biotoxins. DSAMF ¶ 110; PRDSAMF ¶ 110.
Other than the closures at issue, the Maine DMR is unaware of any instance in which
it has taken management action based on the FTAL. 105 DSAMF ¶ 111; PRDSAMF
¶ 111.
F.

Harm to Kenneth F. Wyman, Jr.’s Business

The lobster harvesting season generally runs from July through November,
but this varies according to the weather and no two years have been the same since
Mr. Wyman began fishing. DSAMF ¶ 11; PRDSAMF ¶ 11. The peak crab harvesting
seasons occur in early Spring and late Fall. DSAMF ¶ 12; PRDSAMF ¶ 12. Crab and
lobster are caught with the same gear and by the same activity; crab fishing is not a
separate activity from lobster fishing. 106 DSAMF ¶ 13; PRDSAMF ¶ 13.

8, supra. Additionally, the Court notes that Mr. Wyman did not provide a record citation for his
qualification, PRDSAMF ¶ 109, so even if the qualification was not improper argument, the Court
would disregard the qualification for failure to comply with Local Rule 56(c).
105
Mr. Wyman qualifies paragraph 111 of Mallinckrodt and U.S. Surgical’s statement of
additional material facts, asserting that the Maine DMR’s designee “testified that she is aware of the
Tomalley Advisory but did not know if that was based on the FTAL.” PRDSAMF ¶ 111. The Court
reviewed the portion of the record cited by Mallinckrodt and U.S. Surgical and disregards Mr. Wyman’s
qualification. First, the Court does not appreciate a meaningful distinction between being unaware of
and not knowing whether something has occurred. Second, Mr. Wyman did not provide a record
citation for his qualification, PRDSAMF ¶ 111, so even if the Court did not disagree with the
qualification on a substantive basis, the Court would disregard the qualification for failure to comply
with Local Rule 56(c).
106
Mr. Wyman denies paragraph 13 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, arguing that “[p]rior to the closures, the type of trap made a difference when fishing for
crabs.” PRDSAMF ¶ 13. The Court reviewed the record citations provided by Mr. Wyman and
Mallinckrodt and U.S. Surgical and does not have enough context, from the portion of the record
provided by Mr. Wyman, to determine whether his denial is correct. The cited portion of the record
does not say whether the type of trap being discussed is better for crabs than for lobsters; rather, it
says that that particular type of trap is good for crabs. The Court does not view this as inconsistent
with additional paragraph 13. Additionally, Mr. Wyman denies additional paragraph 13 because Mr.
Wyman “testified that fishing is all about the location of where you put your traps.” PRDSAMF ¶ 13.

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Mr. Wyman usually begins setting his traps for the year in March or April. 107
DSAMF ¶ 14; PRDSAMF ¶ 14. In 2018, Mr. Wyman set approximately half of his
800 traps in late March or early April, and he set the other half in early-to-mid May.
DSAMF ¶ 15; PRDSAMF ¶ 15. Mr. Wyman sets his traps based on when he decides
it is time to start making an income and removes his traps in November or
December. 108 DSAMF ¶¶ 16-17; PRDSAMF ¶¶ 16-17. He used to fish year-round
but does not do so anymore. 109 DSAMF ¶ 18; PRDSAMF ¶ 18. Mr. Wyman testified
that a number of different factors can affect his lobster landings, including the
number of days he hauls traps, the number of traps he hauls per day, the amount and
type of bait he uses, water temperature changes, and the abundance of lobster
predators. 110 DSAMF ¶ 19; PRDSAMF ¶ 19. He also testified that his lobster
landings vary based on a number of factors, including scientific factors he does not

Again, the Court does not regard this as inconsistent with additional paragraph 13. The fact that
certain locations are better for crabs than for lobsters does not mean the activity of baiting, lowering,
and raising traps is different. The Court rejects Mr. Wyman’s denial of additional paragraph 13
because it is required to view contested facts in the light most favorable to the non-movants.
107
The Court regards Mr. Wyman’s qualification of paragraph 14 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 14, and rejects the qualification for the reasons expressed in footnote
8, supra.
108
The Court regards Mr. Wyman’s qualification of paragraph 16 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 16, and rejects the qualification for the reasons expressed in footnote
8, supra.
109
The Court regards Mr. Wyman’s qualification of paragraph 18 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 18, and rejects the qualification for the reasons expressed in footnote
8, supra.
110
Mr. Wyman qualifies paragraph 19 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, contending that he testified only that the factors listed by Mallinckrodt and U.S.
Surgical could affect his lobster landings. PRDSAMF ¶ 19. The Court reviewed the cited portions of
the record, agrees with Mr. Wyman, and altered additional paragraph 19 to more accurately reflect
the record. The Court regards the remainder of Mr. Wyman’s qualification of additional paragraph 19
as argument outside the scope of the facts asserted in the statement, PRDSAMF ¶ 19, and rejects the
remainder of the qualification for the reasons expressed in footnote 8, supra.

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understand. 111 DSAMF ¶ 20; PRDSAMF ¶ 20. As a general rule, the longer Mr.
Wyman fishes during the year, the more landings he has. 112 DSAMF ¶ 21; PRDSAMF
¶ 21. Mr. Wyman is not as productive physically as he was ten years ago. 113 DSAMF
¶ 22; PRDSAMF ¶ 22.
Mr. Wyman is licensed to harvest lobster and crab in Lobster Management
Zones C and D, but his current “home zone” is Zone C, meaning he is required to fish
at least fifty-one percent of his gear in Zone C; he is therefore not allowed to fish more
than 392 traps in Zone D. DSAMF ¶ 4; PRDSAMF ¶ 4. Before 2014, Mr. Wyman’s
home zone was Zone D, where he could fish all of his traps. DSAMF ¶ 5; PRDSAMF
¶ 5. That year, prior to the first closure, Mr. Wyman changed his home zone to Zone
C in order to put a young lobsterman through an apprenticeship program and not as
a result of the 2014 Closure. DSAMF ¶ 6; PRDSAMF ¶ 6. Since changing his home
zone, Mr. Wyman needs to travel south to Zone C to haul the majority of his traps.
DSAMF ¶ 7; PRDSAMF ¶ 7. Zone C is the most southerly location in which Mr.
Wyman fishes and is as far from his home harbor of Stockton Springs as any area he

The Court regards Mr. Wyman’s qualification of additional paragraph 20 as argument outside
the scope of the facts asserted in the statement, PRDSAMF ¶ 20, and rejects the qualification for the
reasons expressed in footnote 8, supra.
112
The Court regards Mr. Wyman’s qualification of additional paragraph 21 as argument outside
the scope of the facts asserted in the statement, PRDSAMF ¶ 21, and rejects the qualification for the
reasons expressed in footnote 8, supra. That there are specific scenarios in which the general rule laid
out by Mallinckrodt and U.S. Surgical does not hold does not contradict the idea that there is a general
rule.
113
Paragraph 22 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“As Mr. Wyman has gotten older, Mr. Wyman is not able to put in as many hours on the water as he
did when he was younger, and he is ‘not as productive physically as [he] was ten years ago.’” DSAMF
¶ 22. Mr. Wyman denies a portion of this statement, asserting that “[t]here is no testimony that he
has not been able to spend as much time on the water after the closures.” PRDSAMF ¶ 22. The Court
reviewed the cited portions of the record and agrees with Mr. Wyman that the record does not support
the statement that Mr. Wyman does not put in as many hours on the water. The Court did not include
that portion of additional paragraph 22 in its recitation of the undisputed facts.
111

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fished before or after the 2014 Closure. DSAMF ¶ 8; PRDSAMF ¶ 8. Prior to his
zone change in 2014, Mr. Wyman fished far fewer traps in Zone C (approximately
300) and far more traps in Zone D (approximately 500) than he has since. DSAMF ¶
9; PRDSAMF ¶ 9.
Before the 2014 and 2016 Closures by the Maine DMR, in Mr. Wyman’s view,
the mercury contamination in the Penobscot estuary did not affect his business in
any way. 114 PSMF ¶ 89; DRPSMF ¶ 89. Prior to the 2014 Closure, Mr. Wyman
maintained approximately 150 traps in the 2014 Closure area and approximately 110
to 120 traps in the 2016 Closure Area, consisting of approximately one-third of his
800 authorized traps. PSMF ¶ 90; DRPSMF ¶ 90. After the 2014 Closure, Mr.
Wyman moved approximately sixty of his traps displaced by the 2014 Closure into
the area that would later be closed in 2016; he placed the remaining traps that had
been located in the 2014 Closure area in the Penobscot Bay. 115 PSMF ¶ 91; DRPSMF
¶ 91. After the 2016 Closure, Mr. Wyman moved all the traps from the 2016 Closure
area into the Penobscot Bay. PSMF ¶ 92; DRPSMF ¶ 92. As a result of the two Maine

Paragraph 89 of Mr. Wyman’s statement of material facts reads, “Prior to the two closures of
the fishing grounds by [the Maine] DMR, the mercury contamination in the Penobscot estuary did not
affect [Mr. Wyman’s] business in any way.” PSMF ¶ 89. Mallinckrodt and U.S. Surgical object to this
paragraph as lacking an adequate foundation. DRPSMF ¶ 89. Mallinckrodt and U.S. Surgical argue
that “[m]ercury contamination has existed on the Penobscot for as long as Mr. Wyman has been fishing
there, so he has no basis to testify as to the performance of his business but for the mercury
contamination.” DRPSMF ¶ 89. Furthermore, Mallinckrodt and U.S. Surgical assert they “have not
had an opportunity to further develop evidence on this issue, including expert opinion testimony
regarding the Maine lobster industry and how it has been impacted by mercury contamination, which
has been public knowledge for decades.” DRPSMF ¶ 89. To respond to Mallinckrodt and U.S.
Surgical’s objection, the Court altered Mr. Wyman’s paragraph to clarify that the statement is Mr.
Wyman’s opinion.
115
Mallinckrodt and U.S. Surgical qualify paragraph 91 of Mr. Wyman’s statement of material
facts, stating that Mr. Wyman “did not have any traps in the water in February 2014.” DRPSMF ¶ 91.
The Court does not read paragraph 91 as suggesting that Mr. Wyman had traps in the water in
February of 2014, and so disregards the qualification.
114

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DMR closures, by Mr. Wyman’s calculation, his harvest of lobsters suffered a
substantial decline: The business’ average lobster catch in pounds from Zones C and
D combined in the five years after the 2014 Closure (2014-2018) declined over thirtyone percent in comparison with the three-year average before the 2014 Closure (20112013). 116 PSMF ¶ 93; DRPSMF ¶ 93.
For a variety of reasons, Mr. Wyman viewed the Closure Area as considerably
more productive than the locations in Penobscot Bay where he was forced to relocate
his traps:
1.

the Closure Area’s relative lack of competition in comparison to the
Penobscot Bay;

2.

the loss of a favorable trough in the seabed in the Closure Area, which
created a concentration of lobsters moving after molting—something
which does not exist in the Penobscot Bay;

3.

the loss of productivity of lobster traps in the Closure Area maximized
by twenty-five years of fine-tuning of strategic location of traps, as

Mallinckrodt and U.S. Surgical object to paragraph 93 as “not based on Mr. Wyman’s personal
knowledge,” as he “testified that he does not personally keep track of his lobster or crab fishing
landings and he has no personal knowledge of his lobster or crab fishing landings in any given year.”
DRPSMF ¶ 93. Additionally, Mallinckrodt and U.S. Surgical assert that even if Mr. Wyman’s “lobster
harvest declined as [he] say[s], the evidence does not establish that the decline was caused by the two
closures,” as Mr. Wyman “acknowledged that many factors affect [his] landings in any given year, and
[he] do[es] not know how these factors affected [his] landings in the relevant time period” and
Mallinckrodt and U.S. Surgical “have not had an opportunity to disclose or elicit expert testimony
regarding th[e] factors affecting lobster landings.” DRPSMF ¶ 93.
The Court included Mr. Wyman’s paragraph 93 but clarified that the statement is Mr.
Wyman’s opinion. Mallinckrodt and U.S. Surgical’s objections and the obligation to view conflicting
evidence in the light most favorable to the non-movants do not require the Court to disregard all
countervailing evidence if supported by a proper record citation, which this paragraph is.

116

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compared to Mr. Wyman’s experience in Penobscot Bay where he has
had to begin again learning where to best locate his traps;
4.

the additional time Mr. Wyman spent harvesting the same number of
traps in the Penobscot Bay after the closures with lower harvests of
lobster in comparison to the time spent before the closures; and

5.

the loss of high-quality lobsters, or “selects,” which are more abundant
in the Closure Area in comparison to lobsters harvested in Penobscot
Bay. 117

PSMF ¶ 94; DRPSMF ¶ 94. The northern part of Penobscot Bay, where the Closure
Area is located, is not as productive for lobster fishing as the southern parts of the
Bay. 118 DSAMF ¶ 31; PRDSAMF ¶ 31.
Mallinckrodt and U.S. Surgical deny paragraph 94 of Mr. Wyman’s statement of material facts,
DRPSMF ¶ 94, which the Court notes is supported only by the testimony and declaration of Mr.
Wyman. PSMF ¶ 94. Paragraph 94 is phrased as if the facts within it are definitively established;
however, on a motion for summary judgment where Mr. Wyman is the movant, the Court does not
regard Mr. Wyman’s testimony—where that testimony is credibly denied by the non-movants—as
capable of establishing facts that, at trial, would be subject to cross-examination. The Court therefore
altered paragraph 94 to make clear that it establishes only Mr. Wyman’s beliefs about the effects of
moving his traps. In light of this alteration, the Court regards Mallinckrodt and U.S. Surgical’s denial
as moot.
118
Mr. Wyman qualifies paragraph 31 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts by arguing that the Deputy Commissioner of the Maine DMR “had no personal
knowledge or record evidence of the referenced statement and would have no basis for disputing [Mr.]
Wyman’s testimony to the contrary in terms of his fishing experience.” PRDSAMF ¶ 31. The Court
reviewed the cited portions of the record and disagrees with Mr. Wyman’s characterization of the
Deputy Commissioner’s testimony. First, Mr. Wyman did not provide the Court with the entirety of
his record citation. The Court does not have pages 204 and 205 of the Deputy Commissioner’s
deposition transcript. Mr. Wyman cited pages 203 to 206 of the transcript but provided the Court only
page 203 from that range; Mallinckrodt and U.S. Surgical provided the Court with page 206. See
Additional Attachs., Attach. 1, Ex. 2: Additional Pages of Trs. and Exs. from Dep. of Maine Department
of Marine Resources at 202-03 (ECF No. 76) (including only pages 202-203 of the Deputy
Commissioner’s deposition transcript); Maine DMR Dep. at 206 (including page 206). Second, it is not
clear from the portion of the record citation that the Court was able to review that the Deputy
Commissioner does not have personal knowledge of which parts of Penobscot Bay are more or less
productive. Third, on this motion for summary judgment, the Court is bound to take all reasonable
inferences in favor of the non-movants Mallinckrodt and U.S. Surgical and so—where reasonable—
must resolve disputes over conflicting testimony in their favor. The Court regards it as a reasonable
117

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Mr. Wyman believes that the Closure Area contains an unusually high number
of peekytoe crabs in comparison to the Penobscot Bay. 119 PSMF ¶ 95; DRPSMF ¶ 95.
Prior to 2014, Mr. Wyman did not have sufficient access to markets to sell all the crab
he could harvest in the Closure Area. 120 PSMF ¶ 96; DRPSMF ¶ 96. Mr. Wyman
created his crab business in the Fall of 2014. 121 DSAMF ¶ 32; PRDSAMF ¶ 32. In
the Fall of 2014, Mr. Wyman secured MDI Seafood as a buyer for his crabs, though
in 2015 he sold all of his crabs to Ed Woods or Bill Kirby. 122 PSMF ¶ 97; DRPSMF

inference that the Deputy Commissioner of the Maine DMR would have personal knowledge about the
relative productivity of portions of the Penobscot Bay. The Court disregards Mr. Wyman’s
qualification of additional paragraph 31.
119
Paragraph 95 of Mr. Wyman’s statement of material facts reads, “The closed areas contain an
unusually high abundance of ‘peekytoe’ (rock) crabs in comparison to Penobscot Bay.” PSMF ¶ 95.
Mallinckrodt and U.S. Surgical qualify this statement, arguing that “[t]he relative populations of crab
in various locations is properly a subject for expert testimony, which the parties have not yet had an
opportunity to develop.” DRPSMF ¶ 95. The Court disagrees. As an experienced fisherman, Mr.
Wyman may testify about specialized matters within his field of knowledge. The Court, however,
altered paragraph 95 to clarify that the statement is based on Mr. Wyman’s testimony.
120
Mallinckrodt and U.S. Surgical qualify paragraph 96 of Mr. Wyman’s statement of material
facts, arguing that “[p]rior to 2014, [Mr. Wyman] had markets for his crab, but he had not yet found
Dave Smith at MDI Shellfish who was willing to take all of the crabs Mr. Wyman could catch” and
that “Mr. Wyman did not create his crab business until the fall of 2014, and it is possible there were
years before 2014 during which Mr. Wyman did not catch a single crab.” DRPSMF ¶ 96. The Court
does not regard Mallinckrodt and U.S. Surgical’s qualification as inconsistent with paragraph 96 and
disregards the qualification.
121
Mr. Wyman denies paragraph 32 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, arguing that he “corrected his testimony on the very next page of the transcript . . ..”
PRDSAMF ¶ 32. The Court reviewed the portion of the record cited by Mr. Wyman and rejects his
denial. In the portion of the record cited by Mr. Wyman, he states, in response to being asked why
2015 was his best year for crab sales, “Because that's—I created—I didn't create. I found a market
that was willing to take all the crabs that I could catch.” DSAMF, Attach. 1, Wyman Dep. Tr. Excerpts
and Exs. at 230:09-18 (Wyman Dep.). The Court regards it as more likely that Mr. Wyman was
correcting his wording to clarify that he did not create a market for his crabs, but rather found such a
market, as opposed to Mr. Wyman’s interpretation that he was implicitly correcting his answer to a
previous and unrelated question.
122
Paragraph 97 of Mr. Wyman’s statement of material facts reads, “[Mr. Wyman] secured a
buyer (MDI Seafood) for crabs in the Fall of 2015 that was willing to purchase all the crabs [he] could
harvest on the condition that the supply was consistent.” PSMF ¶ 97. Mallinckrodt and U.S. Surgical
qualify paragraph 97, contending that “Mr. Wyman testified that he secured MDI Seafood as a buyer
in the Fall of 2014” and that “[h]e testified that he sold all of his crab in 2015 to Ed Woods or Bill
Kirby.” DRPSMF ¶ 97 (emphasis omitted). The Court reviewed the portions of the record cited by
both parties and agrees with Mallinckrodt and U.S. Surgical that they are inconsistent. The Court
suspects that one or both of the parties has evidence that directly answers this question; however, as

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¶ 97. MDI Seafood was willing to purchase all the crabs Mr. Wyman was able to
harvest on the condition that the supply was consistent. PSMF ¶ 97; DRPSMF ¶ 97.
In 2015, after the 2014 Closure, Mr. Wyman’s crab sales were the highest the
business had experienced, coming from harvesting principally from the 2016 Closure
area. 123 PSMF ¶ 98; DRPSMF ¶ 98. Beginning in 2016, after the second closure, Mr.
Wyman believes that his annual crab harvest dropped sharply, generating sales
averaging approximately fifty percent less than what he sold in 2015, and Mr. Wyman
testified that he lost MDI Seafood as a purchaser of his crabs because he was unable
to supply a sufficient number of crabs. 124 PSMF ¶ 99; DRPSMF ¶ 99. According to
Mr. Wyman, before the closures, he could maximize the efficiency of time spent on
the water by concentrating on fishing for crabs before the first lobster molt in the
Spring and again after the abundance of lobsters diminishes in late Fall, whereas
after the closures, these efficiencies were lost by the loss of a crab-intensive habitat. 125
PSMF ¶ 100; DRPSMF ¶ 100.
such evidence is not available on the record, the Court must take all reasonable inferences in favor of
non-movants Mallinckrodt and U.S. Surgical. The Court therefore altered paragraph 97 to reflect
Mallinckrodt and U.S. Surgical’s qualification.
123
Mallinckrodt and U.S. Surgical qualify Mr. Wyman’s paragraph 98, stating that they “object
to this statement and request[] that it be stricken on the grounds that it is misleading and likely to
confuse the issues” because “Mr. Wyman did not create his crab business until the Fall of 2014” and
so “[t]o say that crab sales in 2015 were the highest the business had experienced creates the false
impression that there are other full years to compare it to.” DRPSMF ¶ 98. The Court reviewed the
cited portions of the record and disagrees with Mallinckrodt and U.S. Surgical that paragraph 98 is
misleading. The Court does not view paragraph 98 as inconsistent with other evidence in this record.
The Court rejects the qualification.
124
Mallinckrodt and U.S. Surgical deny paragraph 99 as “not based on Mr. Wyman’s personal
knowledge” because “[h]e testified that he does not personally keep track of his lobster or crab fishing
landings and he has no personal knowledge of his lobster or crab fishing landings in any given year”
and that “he is relying on an expert witness to calculate his loss.” DRPSMF ¶ 99. The Court reviewed
the cited portions of the record and overrules the objections; however, the Court altered paragraph 99
to clarify that the paragraph is based on Mr. Wyman’s testimony.
125
Mallinckrodt and U.S. Surgical deny paragraph 100 of the PSMF, stating that “[c]rab and
lobster are caught with the same gear and by the same process; crab fishing is not a separate activity

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Mr. Wyman testified that he needs to spend more time on the water after the
closures to make up for what he asserted was a loss of harvests compared to preclosure levels and this resulted in loss of time with his family and other activities he
enjoyed in his free time, as well as greater exposure to the dangers of commercial
lobstering, which Mr. Wyman believes is one of the most dangerous professions. 126
PSMF ¶ 101; DRPSMF ¶ 101. Mr. Wyman further testified that he has suffered the
hardship of having to spend more time working in harsh weather conditions in the
Penobscot Bay which he could previously avoid by fishing in the Closure Area where
the land mass provides weather protection during poor or windy weather. 127 PSMF
¶ 102; DRPSMF ¶ 102.

from lobster fishing.” DRPSMF ¶ 100. The Court reviewed the cited portions of the record and does
not view Mallinckrodt and U.S. Surgical’s denial as inconsistent with Mr. Wyman’s paragraph 100.
The statement itself reflects the efficiency of crab fishing before the lobster molt, and thus has to do
with when during the year Mr. Wyman primarily catches crab, as opposed to the process he uses to
catch crabs. The Court rejects the denial. The Court altered paragraph 100, however, to reflect that
it is based on Mr. Wyman’s own statements.
126
Mallinckrodt and U.S. Surgical deny paragraph 101, stating that “Mr. Wyman has no records
comparing the time he spent on the water before the closures to the time he spends on the water after
the closures,” that he fishes more of his traps further from his “home harbor of Stockton Springs not
because of the closure but because Mr. Wyman chose in 2014 to change his home zone from Zone D to
Zone C,” and that his “productivity has declined with age.” DRPSMF ¶ 101. In addition, Mallinckrodt
and U.S. Surgical “request that the Court strike the language, ‘greater exposure to the dangers of
commercial lobstering, one of the most dangerous of all professions,’ since that language lacks
foundation” and its probative value is substantially outweighed by its prejudicial effect. DRPSMF
¶ 101 (quoting PSMF ¶ 101).
The Court reviewed the record citations put forward by each party, agrees with Mallinckrodt
and U.S. Surgical to the extent that Mr. Wyman’s testimony does not make these assertions
established facts, and altered paragraph 101 to clarify that it reflects Mr. Wyman’s testimony, not
established fact.
127
Paragraph 102 of Mr. Wyman’s statement of material facts reads, “[Mr.] Wyman has suffered
the hardship of working more in harsh weather conditions in Penobscot Bay in cold blustery NW winds
that occur in the Spring and late Fall that he could avoid by fishing in the closed areas in such
conditions where the land mass provides weather protection.” PSMF ¶ 102. For a variety of reasons,
Mallinckrodt and U.S. Surgical deny paragraph 102. DRPSMF ¶ 102. The Court altered paragraph
102 to clarify that it reflects only Mr. Wyman’s beliefs and otherwise rejects Mallinckrodt and U.S.
Surgical’s denial.

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Mr. Wyman does not regularly track how much lobster or crab he gets from a
particular trap or the amount of time he spends lobster or crab fishing. 128 DSAMF
¶¶ 23-24; PRDSAMF ¶¶ 23-24. He does, however, have a meter on his boat that
keeps track of how many hours the boat has been in use over its lifetime, though the
only data he has collected from this meter are two undated photographs from two
separate points in time that he does not recall. 129 DSAMF ¶ 24; PRDSAMF ¶ 24. He
also does not personally keep track of his lobster or crab fishing landings and has no
sense of how much money he made in the years after the closures as compared to the
years prior. 130 DSAMF ¶¶ 29-30; PRDSAMF ¶¶ 29-30.
The Court regards Mr. Wyman’s qualification of paragraph 23 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 23, and rejects the qualification for the reasons expressed in footnote
8, supra. The fact that Mr. Wyman has on occasion tracked particular strings of traps does not
contradict the statement that he did not regularly do so.
Mr. Wyman qualifies paragraph 24 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, arguing that he has “provided documents in discovery from which the hours of use of
his boat can be determined.” PRDSAMF ¶ 24. However, he does not provide a record citation for this
assertion, and the Court disregards it. Additionally, Mr. Wyman states that “[e]ngine hours can also
be calculated based on oil changes . . ..” PRDSAMF ¶ 24. But the Court does not regard this statement
as inconsistent with the statement in Mallinckrodt and U.S. Surgical’s statement of additional
material facts, which is that Mr. Wyman himself does not keep track of this data. The Court therefore
disregards this portion of Mr. Wyman’s qualification.
129
Mr. Wyman qualifies this portion of paragraph 24 of Mallinckrodt and U.S. Surgical’s
statement of additional material facts, stating that he has “supplemented discovery responses by
providing, inter alia, an image of the engine hour meter at the end of the 2018 season.” PRDSAMF
¶ 24. However, he does not provide a record citation for this assertion, and the Court disregards it.
130
Paragraph 29 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“Mr. Wyman does not personally keep track of his lobster or crab fishing landings and he has no
personal knowledge of his lobster or crab fishing landings in any given year.” DSAMF ¶ 29. Mr.
Wyman denies the portion of this statement asserting that he has no personal knowledge of his lobster
or crab fishing landings in any given year, arguing that he “obviously has personal knowledge of
landings because he personally made the landings.” PRDSAMF ¶ 29. The Court agrees with Mr.
Wyman that additional paragraph 29 goes beyond the scope of the record citation given by
Mallinckrodt and U.S. Surgical and did not include that portion of additional paragraph 29 in its
recitation of undisputed facts.
Paragraph 30 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“Mr. Wyman has no sense of how much money he made in the years after the closure compared to the
years before the closure.” DSAMF ¶ 30. Mr. Wyman denies this paragraph, arguing that “[t]he record
cited is to testimony by [Mr.] Wyman that he was not familiar with a particular QuickBooks record
marked as an exhibit and could not recall from memory the amount of money he made in 2017 versus
128

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The number of traps Mr. Wyman hauls in a day of fishing varies, but on the
high end he can haul 300 traps in a day; he does not regularly track how many traps
he hauls on a particular day or in a particular year or the number of days he hauls
traps in a year. DSAMF ¶ 25; PRDSAMF ¶ 25. Mr. Wyman hauls his traps in a
sequence, such that in the course of approximately four days of fishing, he will have
hauled all 800 of his traps once. DSAMF ¶ 26; PRDSAMF ¶ 26. The weather does
not impact this sequence. DSAMF ¶ 26; PRDSAMF ¶ 26. Though Mr. Wyman has
never received such a fine, to avoid being fined by the Marine Patrol he must haul
each of his traps at least once every thirty days while it is set. DSAMF ¶ 27;
PRDSAMF ¶ 27. No two days are the same for Mr. Wyman in terms of how he fishes,
and he regularly changes his fishing practices, including the type of bait he uses, the
size of his bait bags, and the locations of his traps. DSAMF ¶ 28; PRDSAMF ¶ 28.
Since the closures, Mr. Wyman has not spoken to other lobstermen or to lobster
associations about accommodating his traps or productive areas where he might be
able to move his traps, citing the territoriality of lobstermen, the potential for gear
conflicts, and his superior knowledge of the fishery. DSAMF ¶ 33; PRDSAMF ¶ 33.
Marine Patrol was instructed to work with fishermen concerned about transitioning
their fishing gear from inside the Closure Area to outside the Closure Area and to

2013.” PRDSAMF ¶ 30 (emphasis omitted). However, the record citation given by Mallinckrodt and
U.S. Surgical shows Mr. Wyman stating, in reaction to the question, “Do you have any recollection or
independent understanding of your sales for that year for lobsters,” that “[a]ll [he] know[s] is [he]
caught lobsters and [he] sold them.” Wyman Dep. Tr. at 190:07-09. From this language, the Court
draws the inference that Mr. Wyman does not personally keep track of how much money he makes
year-over-year. Additionally, the Court reviewed the portion of Mr. Wyman’s testimony in which he
states that he highly doubts any records exist related to his lobster catch prior to 2008. Id. at 154:0912. This statement is further support for additional paragraph 30. The Court rejects Mr. Wyman’s
denial of additional paragraph 30.

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work with other area fishermen to ensure their accommodation of additional fishing
gear from displaced fishermen in the areas they traditionally fished. 131 DSAMF ¶ 34;
PRDSAMF ¶ 34. The Maine DMR communicated to fishermen that Marine Patrol
was willing to provide such assistance. 132 DSAMF ¶ 35; PRDSAMF ¶ 35. It is not
uncommon for fishermen to seek the assistance of Marine Patrol to protect against
the conduct of other fishermen. 133 DSAMF ¶ 36; PRDSAMF ¶ 36. The Maine DMR
is not aware of any gear conflicts among fishermen as a result of the closures. 134
DSAMF ¶ 37; PRDSAMF ¶ 37.
G.

The Federal RCRA Case Phase III Report

In January of 2016, the Court in the Federal RCRA Case selected Amec Foster
Wheeler Environment and Infrastructure, Inc. (Amec) to perform an evaluation of
potential remedies to speed the recovery of the Penobscot River estuary from its state
of mercury contamination. DSAMF ¶ 74; PRDSAMF ¶ 74. In September of 2018,
Amec submitted its Phase III Engineering Study Report (Phase III Report). DSAMF
¶ 75; PRDSAMF ¶ 75. The Phase III Report explains that Amec conducted a human

The Court regards Mr. Wyman’s qualification of paragraph 34 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 34, and rejects the qualification for the reasons expressed in footnote
8, supra.
132
The Court regards Mr. Wyman’s qualification of paragraph 35 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 35, and rejects the qualification for the reasons expressed in footnote
8, supra.
133
The Court regards Mr. Wyman’s qualification of paragraph 36 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 36, and rejects the qualification for the reasons expressed in footnote
8, supra.
134
The Court regards Mr. Wyman’s qualification of paragraph 37 of Mallinckrodt and U.S.
Surgical’s statement of additional material facts as argument outside the scope of the facts asserted
in the statement, PRDSAMF ¶ 37, and rejects the qualification for the reasons expressed in footnote
8, supra.
131

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health risk assessment, which found that the hazard from exposure to mercury via
consumption of American lobster in the Penobscot River is not of concern. 135 DSAMF
¶ 76; PRDSAMF ¶ 76. Amec’s human health risk assessment further concluded that
the assumed consumption rate utilized for the FTAL is based on a consumption rate
nineteen times greater than the local consumer consumption rates for lobster. 136
DSAMF ¶ 77; PRDSAMF ¶ 77.
Amec recommended a combination of remedial alternatives which it estimated
would cost between $246,068,000 and $333,376,000. DSAMF ¶ 78; PRDSAMF ¶ 78.
Amec anticipated that even with remedial treatment, system-wide recovery to a
surface weighted average concentration of 500 nanograms per gram of mercury in
sediment would likely take a minimum of an additional twenty-five years after
completion of the remedial work. DSAMF ¶ 79; PRDSAMF ¶ 79. Ecological recovery
would take an unknown longer amount of time after sediments reached their target
concentrations. DSAMF ¶ 80; PRDSAMF ¶ 80. Amec concluded that even the most
aggressive remedial alternatives evaluated would not lower mercury concentrations
in lobster tissue in the 2016 Closure area below the Maine CDC’s FTAL. 137 DSAMF

Mr. Wyman qualifies paragraph 76 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts, contending that “Amec purported to conduct a ‘human health risk assessment,’ but its
choice of data and analysis is so fatally flawed as to render its conclusions invalid” and explaining
some of his reasons for holding this belief. PRDSAMF ¶ 76. The Court disregards the qualification
because it is required to view conflicting evidence in the light most favorable to the non-movants.
136
The Court rejects Mr. Wyman’s qualification of additional paragraph 77, see PRDSAMF ¶ 77,
for the reasons expressed in footnote 135, supra.
137
Paragraph 81 of Mallinckrodt and U.S. Surgical’s statement of additional material facts reads,
“Amec concluded that even the most aggressive remedial alternatives evaluated would not lower
mercury concentrations in lobster tissue in the 2016 closed area below the Maine C[DC] F[TAL].”
DSAMF ¶ 81. Mr. Wyman qualifies additional paragraph 81, quoting the language cited by
Mallinckrodt and U.S. Surgical. PRDSAMF ¶ 81 (“The cited reference states: ‘Under the more
conservative risk reduction approach (using the upper bound BSAF), Alternative 2: Enhanced MNR
135

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¶ 81; PRDSAMF ¶ 81. The alternatives which Amec concluded would get closest to
this level were system-wide dredging to a system-wide sediment mercury
concentration goal of 300 nanograms per gram and enhanced natural attenuation to
a system-wide sediment mercury concentration goal of 300 nanograms per gram.
DSAMF ¶ 82; PRDSAMF ¶ 82.
Amec did not recommend system-wide dredging because it would take decades
to implement, would destroy habitat, had the potential for increased mercury uptake
by biota during and after dredging, and would be particularly expensive. DSAMF
¶ 83; PRDSAMF ¶ 83. Amec estimated that system-wide dredging to a sediment
concentration of 300 nanograms per gram would cost $5,544,190,000. DSAMF ¶ 84;
PRDSAMF ¶ 84.
Amec also did not recommend enhanced monitored natural attenuation to a
sediment concentration of 300 nanograms per gram based on the uncertainty as to
how this remedial alternative would be applied system-wide and the potential for
negative effects from its application. DSAMF ¶ 85; PRDSAMF ¶ 85. Enhanced
monitored natural attenuation is innovative and has not been demonstrated on field
scale for open systems such as estuaries. DSAMF ¶ 85; PRDSAMF ¶ 85. Systemwide application of this alternative would require extensive pre-design modeling to

(PRG of 300 ng/g) and Alternative 3: Dredging (PRG of 300 ng/g) would result in a decrease to below
200 ng/g, with the exception of the 2016 lobster closure area when assuming the upper bound BSAF’”).
Mallinckrodt and U.S. Surgical’s proposed additional paragraph 81 is an extrapolation from
the Phase III Report. This is an exceedingly complex area and although it may turn out that
Mallinckrodt and U.S. Surgical are incorrect, the Court is required to view contested facts in the light
most favorable to Mallinckrodt and U.S. Surgical and therefore rejects Mr. Wyman’s qualification.
The inference drawn here by non-movants Mallinckrodt and U.S. Surgical is a reasonable one, and the
Court must credit it.

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determine the implementation strategy. DSAMF ¶ 85; PRDSAMF ¶ 85. There is the
concern that added material might deposit in unintended areas such as in shipping
channels and adversely impact navigation.

DSAMF ¶ 85; PRDSAMF ¶ 85.

In

addition, permits for this alternative could be difficult to obtain due to the increased
turbidity and particulate load that would result from material addition which could
affect biota (e.g. burial of fish eggs). DSAMF ¶ 85; PRDSAMF ¶ 85.
Amec further concluded that remediation at or below background mercury
concentrations would be technically impractical. DSAMF ¶ 86; PRDSAMF ¶ 86.
Amec found that the concentration of particulate mercury from samples at the former
Veazie Dam averaged 217.5 nanograms per gram. 138 DSAMF ¶ 87; PRDSAMF ¶ 87.
Ms. Ladner from the Maine DEP testified that the background mercury concentration
in the Penobscot River is approximately 290 nanograms per gram. 139 DSAMF ¶ 88;
PRDSAMF ¶ 88.
III.

THE PARTIES’ POSITIONS
A.

Kenneth F. Wyman’s Motion for Summary Judgment

Mr. Wyman argues that the record in this case “distills down to some simple,
common sense propositions which have been so carefully examined, so thoroughly
litigated and so completely ruled upon” that the Court should grant him a partial

Mr. Wyman denies paragraph 87 of Mallinckrodt and U.S. Surgical’s statement of additional
material facts because “[t]he referenced table does not contain averages.” PRDSAMF ¶ 87. The Court
reviewed the cited portion of the record and rejects Mr. Wyman’s denial. Though the cited table of the
does not contain an average, the average is easily calculable based on the information on that page.
139
Mr. Wyman admits that Ms. Ladner testified as cited but qualifies the description of Ms.
Ladner’s testimony in additional paragraph 88 because “[s]he testified to what she ‘believe[d][’] to be
the ‘right number,[’] or ‘something like that.’” PRDSAMF ¶ 88 (internal quotation marks omitted)
(some alterations in original). The Court reviewed the cited portion of the record, agrees with Mr.
Wyman, and altered additional paragraph 88 to reflect that Ms. Ladner testified to an approximation.
138

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summary judgment on liability and causation with regard to his claims for continuing
and permanent public nuisance and strict liability. Pls.’ Mot. at 1. Mr. Wyman
argues that these issues “have already been litigated and resolved in Phase I of the
federal RCRA case” as well as Phase II and that the Phase I ruling has also been
affirmed by the First Circuit. Id. at 2-3. Mr. Wyman argues that Mallinckrodt and
U.S. Surgical are “precluded from challenging the rulings in these decisions to the
extent they overlap on liability and causation issues in this case based on the doctrine
of non-mutual offensive collateral estoppel (issue preclusion) . . ..” Id. at 3. Mr.
Wyman then recites what he argues are the undisputed material facts, id. at 3-15,
before proceeding to his argument.
1.

Principles of Issue Preclusion Applicable to This Case

Mr. Wyman argues that his reliance “on prior rulings of this Court in the
federal RCRA case, namely, Judge Carter’s Decision, the First Circuit’s Decision and
Judge Woodcock’s Decision, to satisfy key elements of liability” on his “public
nuisance and strict liability claims is entirely justified when examination is made of
the principles of issue preclusion, including nonmutual offensive issue preclusion.”
Id. at 16. Specifically, Mr. Wyman “seek[s] to give preclusive effect to seven factual
rulings in the Judge Carter, the First Circuit and Judge Woodcock Decisions”:
Ruling 1:
Ruling 2:
Ruling 3:
Ruling 4:

Mallinckrodt discharged enormous amounts of mercury
into the Penobscot River between 1967 and 1982;
resulting in contamination of the Penobscot River estuary
with highly toxic methylmercury;
with Mallinckrodt’s discharges being the dominant source
of the mercury contamination of the Penobscot River;
posing a substantial and unacceptable risk to public
health, especially for sensitive populations (such as fetuses
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Ruling 5:

Ruling 6:
Ruling 7:

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carried by pregnant women and children with developing
brains);
resulting in the closure of fishing grounds by [the Maine]
DMR in 2014 based on the sampling of shellfish recorded
in the PRMS showing levels in excess of the threshold for
mercury in seafood of 200 ng/g wet wt.(.2 parts per million
or 200 nanograms per gram) set in the F[TAL] by [the
Maine] CDC;
demonstrating the extent of the adverse health effects
resulting from Mallinckrodt’s mercury contamination;
the effects of which will continue for a long duration unless
remedied.

Id. at 16-17 (emphasis omitted) (citations omitted). Mr. Wyman concedes that these
“prior rulings do not satisfy all the elements of the public nuisance and strict liability
claims,” as “[t]here are other elements that must be satisfied, such as damages and
proximate cause, for which resort will be made to the record in addition to the prior
rulings in the federal RCRA case . . ..” Id. at 17. However, he argues, these “seven
rulings relied upon do most of the heavy lifting in establishing the right to summary
judgment on liability and causation, with damages to be proven at trial.” Id.
Mr. Wyman cites In re Light Cigarettes Marketing Sales Practices Litigation,
691 F. Supp. 2d 239, 243 (D. Me. 2010) (In re Light Cigarettes), for the “traditional
elements for a claim of issue preclusion under the common law . . ..” Pls.’ Mot. at 17.
Mr. Wyman asserts that “[a] core question in this case is whether the first element
for traditional issue preclusion—identity of issues—can be met,” and argues that “the
adjudication to be given preclusive effect does not have to be based on the same cause
of action as the subsequent proceeding” as “[c]ollateral estoppel . . . deals with the
preclusive determination of factual matters.” Id. at 18 (emphasis in Mr. Wyman’s
memorandum) (quoting Galvin v. Metrocities Mortg., LLC, 1:16-cv-00268-JDL, 2017
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WL 5632868, at *12 (D.N.H. Nov. 17, 2017)). Mr. Wyman is “not saying that the
ultimate legal ruling in the federal RCRA case should preclude Mallinckrodt from
defending against Plaintiffs’ public nuisance or strict liability claims,” but rather that
seven factual determinations made in the Federal RCRA Case should be binding on
Mallinckrodt and U.S. Surgical “for purposes of satisfying some of the elements of
[Mr. Wyman’s] public nuisance and strict liability claims.” Id.
Mr. Wyman argues that “[i]t is particularly appropriate to give RCRA findings
preclusive effect to [his] public nuisance claims because ‘[n]uisance principles form
the core doctrinal foundation for modern environmental statutes, including the
RCRA.’”

Id. at 18-19 (some alterations in original) (emphasis in Mr. Wyman’s

memorandum) (quoting Cox v. City of Dallas, 256 F.3d 281, 289 (5th Cir. 2001)). Mr.
Wyman notes that “the identity of the issues need not be absolute; rather, it is enough
that the issues are in substance identical,” id. at 19 (quoting Jones v. Boston, 845 F.3d
28, 33 (1st Cir. 2016)), and that “[i]n this case, some of the issues decided in the
federal RCRA case are identical to some of the elements for the public nuisance and
the strict liability claims while others are substantially similar.” Id. Additionally,
Mr. Wyman contends that “the First Circuit has repeatedly recognized[] that issue
preclusion is no longer limited to ultimate issues; necessary ‘intermediate findings’
can now be used to preclude relitigating, ‘even where those findings are not explicit.’”
Id. at 19-20 (quoting Manganella v. Evanston Ins. Co., 700 F.3d 585, 591 (1st Cir.
2012)). Mr. Wyman says that “these principles come into play with respect to most
of the six findings that [he] rel[ies] upon.” Id. at 20. He next argues that “[t]he

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remaining requirements for applying traditional claims preclusion—that the prior
rulings were actually decided, central to the decision, and were sufficiently final are
easily met in this case.” Id. at 20-22 (footnotes omitted). He then says that “[t]here
are four additional requirements when non-mutual offensive issue preclusion is
involved” but that “[n]one of the four factors . . . are relevant to this case.” Id. at 2223.
2.

The Public Nuisance Claims

Mr. Wyman argues that he is entitled to partial summary judgment on his
public nuisance claims. He states that Maine statutory law “grants a private cause
of action for damages for statutory public nuisance by any person injured thereby.”
Id. at 23 (citing 17 M.R.S. § 2701). He argues that he “has standing under Section
2701 to bring an action for a public nuisance under [17 M.R.S. §] 2802 because
Mallinckrodt has interfered with his right as a licensed commercial fisherman to
harvest lobsters,” which he states “is a property right protected by Maine law.” Id.
at 24. He contends “[t]here can be no room for argument with the proposition that
Mallinckrodt’s [Predecessor’s] conduct resulting in extensive contamination of the
Penobscot River estuary with highly toxic[] methylmercury constitutes a ‘corrupting
or rendering unwholesome or impure the water of a river,’” id. at 25 (quoting 17
M.R.S. § 2802), based on “[t]he findings made by Judge Carter, the First Circuit and
Judge Woodcock concerning Mallinckrodt’s [Predecessor’s] contamination of the
Penobscot River estuary . . .. so long as [Mr. Wyman] can show that the contamination
by Mallinckrodt[’s Predecessor] was the proximate cause” of his injury. Id. at 25-26.

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Alternatively, Mr. Wyman asserts, he is “entitled to summary judgment on liability
for statutory public nuisance based on . . .. the evidence that led to the rulings” he
relies on in his motion. Id. at 26.
Mr. Wyman next turns to the common law of public nuisance, and he again
argues that he has met the elements for such a cause of action. Mr. Wyman quotes
Hanlin Group, Inc. v. International Minerals & Chemical Corp., 759 F. Supp. 925 (D.
Me. 1990), for the proposition that “[a]n action for public nuisance is available under
Maine law if the defendant has violated or threatens to violate a public right and the
plaintiff has suffered an injury different in kind from that sustained by the public
generally.” Pls.’ Mot. at 26-27 (alteration in original) (quoting Hanlin, 759 F. Supp.
at 935). He states that “[i]t has long been recognized that the release of hazardous
waste into the environment unreasonably infringes upon a public right” and that “[i]t
has also been held that this kind of public nuisance imposes liability as a matter of
law.” Id. at 27. He does not cite any state of Maine or First Circuit caselaw explicitly
for either of these propositions, but rather says that “[g]iven the enormity of the
contamination of the Penobscot River estuary by Mallinckrodt[‘s Predecessor], it is
likely that Maine courts would agree, especially when throughout its judicial history
Maine has had a statute on its books declaring contamination of public waters to be
a public nuisance per se.” Id. at 28 (citing Hanlin, 759 F. Supp. at 933 n.13).
Mr. Wyman asserts that analysis under the Restatement (Second) of Torts also
leads to the conclusion that Mallinckrodt and U.S. Surgical should be held liable for
common law public nuisance. Id. at 28-29. Mr. Wyman goes through each of the

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Restatement’s “three circumstances that are deemed to be ‘unreasonable interference
with a public right . . ..” Id. at 28 (quoting Restatement (Second) of Torts § 821B(2)
(Restatement Torts)). The first is “conduct [that] involves a significant interference
with the public health, the public safety, the public peace, the public comfort or the
public convenience . . ..” Restatement Torts § 821B(2)(a). Mr. Wyman contends that
“[t]he first three rulings in the federal RCRA case [that he raised] establish . . . . that
Mallinckrodt[‘s Predecessor] (1) discharged enormous amounts of mercury into the
Penobscot River, (2) the Penobscot River estuary is contaminated with mercury, and
(3) Mallinckrodt[‘s Predecessor] is the dominant cause of this contamination.” Pls.’
Mot. at 29 (internal citation omitted). He also argues that “[t]he fourth, fifth and
sixth rulings of the federal RCRA case . . . establish that the contamination by
Mallinckrodt[‘s Predecessor] of the Penobscot River estuary with highly toxic
methylmercury resulted in the specific kind of interference with a public right
recognized by the Restatement because of the effects on public health.” Id. at 30
(emphasis omitted). Lastly, he argues that “the record in this case fully supports a
finding of liability on the common law public nuisance based on harm to the public
health, wholly apart from the prior rulings.” Id. at 31.
The second circumstance the Restatement deems to be unreasonable
interference is “conduct [that] is proscribed by a statute, ordinance or administrative
regulation . . ..” Restatement Torts § 821B(2)(b).

Mr. Wyman argues that the

“allegations in this case are identical to those considered in Hanlin and thus form a
second reason for finding that Mallinckrodt’s [Predecessor’s] contamination of the

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Penobscot River estuary with mercury is an unreasonable interference with a public
right.” Pls.’ Mot. at 32.
The third circumstance the Restatement refers to is “conduct [that] is of a
continuing nature or has produced a permanent or long-lasting effect, and, as the
actor knows or has reason to know, has a significant effect upon the public right.”
Restatement Torts § 821B(2)(c). Mr. Wyman asserts that Mallinckrodt’s Predecessor
“knew from the beginning of operations in December 1967 that it was losing mercury
from operations through air emissions and from other releases it claims could not be
identified” and “knew or should have known in early May 1969” about the loss of
mercury through wastewater but failed to act on this information. Pls.’ Mot. at 34.
Additionally, Mr. Wyman contends that the seventh ruling he pointed to “establishes
that the effects of Mallinckrodt’s [Predecessor’s] contamination significantly affecting
public health will continue for a long time unless remediated” and that liability
therefore attaches. Id. at 34-35.
3.

Strict Liability

Mr. Wyman claims that he has satisfied the elements of 38 M.R.S. § 1319-U(5),
which “provides a private cause of action against a person responsible for the disposal
of hazardous waste that endangers the health, safety or welfare of others without the
need to prove negligence” because “[m]ercury is a hazardous waste within the
meaning of this statute” and “[t]he evidence supporting the claim here that the
hazardous waste discharged into the Penobscot River estuary resulted in an
endangerment to the public health is the same” as that for public nuisance. Id. at 35.

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Mr. Wyman also asserts that he has satisfied the elements of a common law strict
liability claim because “[t]he circumstances in this case precisely parallel those in
[Department of Environmental Protection v. Ventron Corp., 468 A.2d 150 (N.J.
1983)],” a case in which the New Jersey Supreme Court found strict liability. Id. at
37-38.
4.

Special Damages

Mr. Wyman states that “[f]or each of the categories of liability addressed above,
[he] must show that [he] suffered special injury, separate and distinct from what the
public at large may suffer, to have standing to bring a common law nuisance claim.”
Id. at 38 (citing Hanlin, 759 F. Supp. at 936-37). He states that this requirement is
satisfied by “the two closures by [the Maine] DMR [which] prevented [Mr.] Wyman
from harvesting lobsters and crabs in areas that had been highly productive for him
without much competition and where he had fined tuned his knowledge of where to
place his traps and also subjected [Mr.] Wyman to serious noneconomic damages.”
Id. at 39.
5.

Proximate Cause

Mr. Wyman asserts that “[o]n this record, the Court should find that
Mallinckrodt’s [Predecessor’s] contamination of the Penobscot River estuary was the
proximate cause of the special injuries suffered by [Mr. Wyman] as a matter of law.”
Id. He states that “the M[aine] DMR closures were the direct result of the . . . mercury
that Mallinckrodt[‘s Predecessor] discharged into the Penobscot River estuary,
causing [Mr. Wyman] to suffer special injuries directly resulting from those closures,”

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as evidenced by the first six rulings in the Federal RCRA case Mr. Wyman identifies,
as well as “independently from the undisputed evidence underlying those rulings.”
Id. at 39-40 (emphasis omitted).
Foreseeability, in Mr. Wyman’s view, “need not be an issue here any more than
it would be for a plaintiff seeking damages from injuries suffered from being hit by
[a] defendant’s speeding car.” Id. at 40. However, were this not the case, he believes
“the special injuries suffered by [Mr. Wyman] were clearly and obviously foreseeable,
if proof of such is required” because “special injuries to commercial fishermen are
foreseeable when their fishing grounds are contaminated with hazardous waste.” Id.
at 40-41.
Mr. Wyman states that
[t]he only argument available to Mallinckrodt [and U.S. Surgical] in the
circumstances of this case is to claim that the chain of causation, with
its known foreseeable consequences, was broken because the decision by
[the Maine] DMR to issue the closures was the result of an arbitrary and
capricious administrative action, without any substantial basis, beyond
the discretion of the Commissioner.
Id. at 41. However, in his estimation, U.S. Surgical and “Mallinckrodt [are] hardly
in a position to succeed on such a claim given this Court’s prior rulings in the federal
RCRA case” regarding the relationship between the closures and Mallinckrodt’s
Predecessor’s discharges, as well as the Court’s “adoption of the M[aine] CDC
F[TAL]s of 200 nanograms per gram on which the closures were based as a
benchmark for future proceedings on remediation.” Id. at 41-42. Mr. Wyman claims
that there is no credible argument that the Maine DMR’s closures are invalid, that

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Mallinckrodt and U.S. Surgical have had an adequate opportunity to fully litigate the
issue, and that discovery taken in this case supports the closures. Id. at 43.
B.

Mallinckrodt and U.S. Surgical’s Opposition

Mallinckrodt and U.S. Surgical argue that Mr. Wyman’s motion “does not meet
the heavy burden required to establish that issue preclusion should be applied under
the highly unusual circumstances of this case” for a variety of reasons:
RCRA liability involved different issues and standards of proof, issues
essential to the claims and defenses in this case were not litigated, the
RCRA liability findings were made by a federal judge (not a jury) 17
years ago, and deciding liability for state law tort claims without
discovery or the ability to develop the record would be unfair to
[Mallinckrodt and U.S. Surgical] and would distort the jury’s
understanding of the remaining issues, and issue preclusion would not
generate significant efficiency gains.
Defs.’ Opp’n at 1-2. Mallinckrodt and U.S. Surgical lay out the relevant facts as they
view them, id. at 4-19, before proceeding to each of these issues in turn.
1.

Issue Preclusion

Mallinckrodt and U.S. Surgical assert that Mr. Wyman’s “burden is
particularly heavy since [he] request[s] nonmutual offensive issue preclusion,” which
is discretionary and is “not appropriate where it would not promote judicial economy,
there was little incentive to defend vigorously issues in the first suit, the second action
affords the defendant procedural opportunities unavailable in the first action that
could cause a different result, or it would otherwise be unfair to a defendant.” Id. at
19-20 (citing In re Light Cigarettes, 691 F. Supp. 2d at 243-44). They raise a series of
arguments for why imposition of nonmutual offensive issue preclusion is
inappropriate. Id. at 20-31.
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a.

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Lack of Identity of Issues

Mallinckrodt and U.S. Surgical quote Faigin v. Kelly, 184 F.3d 67 (1st Cir.
1999), for the proposition that “the reach of collateral estoppel must be confined to
situations where the matter raised in the second suit is identical in all respects with
that decided in the first proceeding.” Defs.’ Opp’n at 20 (quoting Faigin, 184 F.3d at
78). They argue that “[t]he legal issues addressed and determined in the RCRA
proceedings were vastly different from those at issue here” because the plaintiffs in
the Federal RCRA case did not need to show actual harm, whereas Mr. Wyman’s
statutory and common law public nuisance and strict liability claims would require
proof of actual harm. Id. at 21. Additionally, they assert, for the common law public
nuisance, Mr. Wyman needs to establish that Mallinckrodt’s Predecessor acted
unreasonably; for the common law strict liability claim, Mr. Wyman needs to
establish that Mallinckrodt’s Predecessor’s actions were abnormally dangerous; and
for all of the claims, Mr. Wyman needs to prove “special injury different and greater
than injury suffered by the public generally.” Id. at 21-22. Mallinckrodt and U.S.
Surgical contend that “[n]one of these issues was before the court in the RCRA
proceedings” and also that “the general and specific causation questions in this case
. . . neither were nor could have been before the Court in the federal RCRA case”
because the closures complained of did not occur until later. Id. at 22. Mallinckrodt
and U.S. Surgical also argue that they have a number of previously unavailable
defenses which they should not be precluded from raising, including “statute of

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limitations, comparative fault, coming to the nuisance, and intervening and
superseding cause.” Id.
b.

Proximate Cause and Causation and the Centrality
of Federal RCRA Case Findings Related to the
Closures

Mallinckrodt and U.S. Surgical argue that they did not have an opportunity or
incentive to litigate the cause of the closures in the Phase II trial in the Federal RCRA
Case because liability did not turn on that issue and the trial took place shortly after
the 2014 Closure. Id. at 22-24. They state that Mr. Wyman “make[s] much of the
Court’s statement that the closure was ‘directly related to the level of mercury in the
Penobscot estuary.’” Id.at 24 (quoting Pls.’ Mot. at 41-42). However, Mallinckrodt
and U.S. Surgical contend that “this is far from a finding that [Mallinckrodt’s
Predecessor’s] activities between 1967 and 1982 were the proximate cause of the
closures, which [Mr. Wyman] must prove in this case.” Id. Additionally, they argue,
“exceedances of the FTAL [do not] establish proximate causation here” because “the
Court did not adopt the FTAL as a benchmark for future proceedings on remediation”
and discovery has shown that “exceedances of the FTAL did not cause the closures.”
Id. at 24-25.
Furthermore, Mallinckrodt and U.S. Surgical assert that “[d]iscovery from
state agencies in this case has significantly added to the parties’ understanding of the
closures, further illustrating that the closures were not litigated in the federal RCRA
case.” Id. at 25. They argue they should be able to bring this new evidence before a
jury and that it is clear the cause of the closures has not been litigated. Id. at 25-26.

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Even if the closures had been litigated, Mallinckrodt and U.S. Surgical state, the
cause of Mr. Wyman’s “specific alleged injuries was not litigated in the federal RCRA
case.” Id. at 26.
c.

Efficiency, Jury Confusion, and Fairness

Mallinckrodt and U.S. Surgical argue that nonmutual offensive issue
preclusion would be unfair because they have raised a variety of defenses not
available to them in the Federal RCRA Case, including the statute of limitations,
intervening and superseding cause, comparative fault, coming to the nuisance, and
the retroactivity of a statutory strict liability claim to activity before the statute was
promulgated in 1981. Id. at 27-29. Additionally, Mallinckrodt and U.S. Surgical
assert that they are entitled to a jury trial in this action, which was not true of the
Federal RCRA Case. Id. at 29.
Mallinckrodt and U.S. Surgical also argue that “[i]ssue preclusion would yield
few, if any, efficiency benefits and would likely confuse the jury” because even if Mr.
Wyman was “entitled to an issue preclusion ruling in [his] favor, the parties would
nevertheless proceed to trial on damages, punitive damages, and the question of
abatability,” and many of these questions would be tied to the causation question or
would require extensive discovery.

Id. at 29-31.

Because of this, they argue,

resolution of these questions would risk confusing the jury and would erase any
efficiency gains to be had by imposition of issue preclusion. Id. at 30-31.
2.

Proximate Causation

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Mallinckrodt and U.S. Surgical point out Judge Carter’s recognition that
RCRA has a low causation standard and then assert that Mr. Wyman is “required to
prove that [Mallinckrodt’s Predecessor’s] conduct proximately caused their injuries
under Maine law, a more exacting standard that has yet to be litigated and cannot be
resolved based on the factual findings of the federal RCRA case.”

Id. at 31.

Mallinckrodt and U.S. Surgical argue that, “[w]hile case law on point is sparse, courts
have found that government responses to pollution events may break the causal chain
between the pollution and the consequences of the government action.” Id. at 33.
While not seeking to have the Court find as a matter of law “that government action
breaks the causal chain between antecedent conditions and injury caused by the
government action,” Mallinckrodt and U.S. Surgical argue it at least raises a genuine
issue of material fact on proximate cause. Id. at 34.
Additionally, Mallinckrodt and U.S. Surgical argue that the harm Mr. Wyman
alleges is attenuated because evidence suggests that lobsters in the Closure Area are
not a health risk and that Mr. Wyman’s claimed injuries were actually “caused by a
discretionary policy judgment by a state agency.” Id. at 34-35. They allege that “[a]
reasonable fact-finder could conclude that the closure constitutes an intervening and
superseding cause,” particularly as “[a]fter twenty-seven years of fishing in the
conditions [he] claim[s] caused [his] harm, [Mr. Wyman] claim[s] no injury until the
intervening action by the Maine D[MR].” Id. at 36. Furthermore, they state, “[e]ven
if one could conclude as a matter of law that [Mallinckrodt’s Predecessor’s] discharges
were the proximate cause of the fishery closures, there would remain a genuine issue

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of material fact as to the proximate cause of the individual harm [Mr. Wyman]
allege[s]” due to changes in Mr. Wyman’s fishing practices and other factors affecting
Mr. Wyman’s profits that are unrelated to the closures. Id. at 37-38.
3.

Special Injury

Mallinckrodt and U.S. Surgical contend that there is a genuine issue of
material fact as to whether Mallinckrodt’s Predecessor’s actions caused Mr. Wyman
special injury, an element of both his statutory and common law public nuisance
claims. Id. at 38. Mallinckrodt and U.S. Surgical state that “[t]here is no competent
evidence of an injury to any property right of” Mr. Wyman’s, as “he has no personal
knowledge of his relative lobster landings year-over-year” and will be relying on
expert testimony he has not yet gathered. Id. at 39. Additionally, “[e]ven assuming
that [Mr. Wyman’s] landings are down since the closure, there is a genuine issue of
material fact as to whether the decreases were caused by the closure” because “there
are numerous factors that could have caused a drop in Mr. Wyman’s lobster landings
in the last several years . . ..” Id.
4.

Common Law Public Nuisance

Mallinckrodt and U.S. Surgical argue that “[t]he federal RCRA case did not
establish that there was an unreasonable interference with a public right such that
a common law public nuisance exists,” as the RCRA standard is lower than the
common law public nuisance standard, and Mallinckrodt and U.S. Surgical have not
had an opportunity to develop a record on these points. Id. at 40. They assert that
Mr. Wyman does not “allege any interference with rights [he] had in common with

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the public for more than 30 years after [Mallinckrodt’s Predecessor’s] last mercury
release,” and “[e]ven now, there is no public health risk for commercial fishing;”
rather, the “interference came from the [Maine] DMR’s decision to protect the Maine
lobster brand, not from any actual health or safety effects . . ..” Id. Furthermore,
they argue, Mallinckrodt’s Predecessor “did not know or have reason to know that
[its] activity would have a significant effect upon a public right, as “[w]hen the plant
started up, the engineering firm that designed it did not believe mercury would be
discharged from the plant.” Id. at 41. They add that Mallinckrodt’s Predecessor
“significantly curbed its mercury releases” once it discovered the discharges. Id.
5.

Statute of Limitations

Mallinckrodt and U.S. Surgical claim that “[i]mposing issue preclusion would
unfairly deprive [them] of a statute of limitations defense,” as Mr. Wyman’s public
nuisance and strict liability claims are subject to a six-year statute of limitations
unless he can establish a continuing tort. Id. at 41-42. They state that whether a
public nuisance constitutes a continuing tort depends on whether it is readily
abatable. Id. at 42. This issue is the subject of a separate motion for summary
judgment by Mallinckrodt and U.S. Surgical, and they assert that at the very least,
the abatability issue should be a “fact question to be resolved at trial.” Id.
6.

Common Law Strict Liability

Mallinckrodt and U.S. Surgical argue that “[t]he federal RCRA case did not
establish that [they] engaged in abnormally dangerous activity as to establish
common law strict liability” because “[i]n the federal RCRA case, the[y] could be held

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liable just for contributing to an imminent and substantial endangerment,” which is
a lower standard. Id. at 43-44. They suggest that “[t]he available evidence . . . raises
a genuine issue of fact” as to their liability. Id. at 44. They also assert that, contrary
to Mr. Wyman’s suggestion, “mercury is not categorically regulated as a hazardous
waste” in Maine, and its classification “is contingent on how it is used and the amount
that is disposed of.” Id. at 46. Thus, according to Mallinckrodt and U.S. Surgical, the
question of whether Mallinckrodt’s Predecessor engaged in abnormally dangerous
activity should be presented to a jury. Id. at 47.
7.

Statutory Strict Liability

Lastly, Mallinckrodt and U.S. Surgical suggest that “[s]ummary judgment on
[Mr. Wyman’s] statutory strict liability claim is inappropriate because [he] seek[s] to
improperly apply 38 M.R.S. § 1319-U(5) retroactively insofar as [he] seek[s] to hold
[them] liable for conduct before the statute became effective in September 1981.” Id.
They argue that Maine statutes are assumed to be prospective unless the contrary
legislative intent is clearly expressed or necessarily implied and that the statute Mr.
Wyman utilizes does not establish such a legislative intent. Id. at 47-48. They assert
that issue preclusion, therefore, should not apply to this claim because “[t]he vast
majority of mercury releases for which [Mr. Wyman] claim[s] Mallinckrodt[‘s
Predecessor] is responsible occurred between 1967 and 1970 . . ..” Id. at 48.
C.

Mr. Wyman’s Reply

Mr. Wyman begins his reply with what he terms “general observations,”
stating that Mallinckrodt and U.S. Surgical’s response “gives remarkably little

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attention to the merits” of Mr. Wyman’s motion and “is . . . notable for its claim,
repeated again and again, that the State of Maine has no health concerns for
commercially harvested lobsters or crabs,” which Mr. Wyman states is a deliberate
falsehood to the Court. Pls.’ Reply at 1-2 (emphasis omitted). Additionally, Mr.
Wyman argues that his motion should succeed even “if issue preclusion does not
resolve all the elements of the claims addressed in the pending summary
judgment . . ..” Id. at 2. Mr. Wyman then recites the “simple foundation” for his
summary judgment, which consists of a further recital of what he believes to be the
governing facts and rulings from the Federal RCRA Case, id. at 2-12, before
proceeding with his argument.
1.

Issue Preclusion

Mr. Wyman first addresses “the relationship between RCRA and public
nuisance for purposes of issue preclusion,” concluding that nuisance principles
undergird the RCRA and that a causation requirement is embedded within RCRA.
Id. at 13-14.

Mr. Wyman represents that this supposed causation requirement

“sounds very close to the concept of the ‘substantial factor’ test” used to establish
causation in Maine common law tort claims. Id. at 14. He also states that “avoiding
joint and several liability is an uphill battle for any defendant in an environmental
case who shoulders the burden of proving that the harm is divisible.” Id. at 16
(quoting City of Bangor v. Citizens Commc’ns Co., 437 F. Supp. 2d 180, 218-19 (D.
Me. 2006)).

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Mr. Wyman next asserts that the Court should apply issue preclusion to Judge
Carter’s findings that Mallinckrodt’s Predecessor “has been a dominant source of
mercury contamination of the Penobscot River estuary” and that its contribution is
“indivisible” from other sources of mercury. Id. (quoting PSMF ¶¶ 56-57). Mr.
Wyman argues these findings are entitled to preclusive effect since “[t]he causation
element of a RCRA case is the same or substantially similar to the common law
requirements of causation for a public nuisance” because it is immaterial that Judge
Carter’s findings could have been narrower than they were and because any new
evidence Mallinckrodt and U.S. Surgical may have on this issue should have been
presented at the time. Id. at 17-22. Lastly, Mr. Wyman contends that the rulings of
this Court related to causation in Phase II of the Federal RCRA Case are also entitled
to preclusive effect, as these findings also were “closely aligned to the liability issues”
in this case and Mallinckrodt and U.S. Surgical had an opportunity to counter them
at the time. Id. at 22-24.
2.

Proximate Cause

Mr. Wyman states, in reference to this Court’s statement that the 2014
Closure was “game-changer,” that “the Court knows” whether this statement was
“referring to the public health reasons for the closure,” and thus Mr. Wyman “leave[s]
it to the Court to decide whether to apply issue preclusion to these findings.” Id. at
24 (quoting DRPSMF ¶ 80). However, from Mr. Wyman’s vantage, “even in the
absence of these rulings, the administrative record makes clear that both closures
were the result of sampling of lobsters and crab with concentrations of mercury in

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excess of the FTAL from the PRMS and from confirming samplings in 2014 and 2015,”
and “[t]herefore, there is no dispute about causation in fact,” as “[t]he special harm
suffered by [Mr. Wyman] was a direct result of the closures which were the direct
result of contamination by Mallinckrodt[’s Predecessor].”

Id.

Additionally, Mr.

Wyman argues that the closures were a foreseeable result of Mallinckrodt’s
Predecessor’s contamination and that “the only way . . . to break the foreseeability is
to establish that the State of Maine’s response to the contamination to protect public
health was unreasonable . . ..” Id. at 24-25.
Mr. Wyman next argues that “even without applying issue preclusion” to the
issue of proximate cause, the record of what led to the closures is complete, and he is
entitled to summary judgment because it is clear that the Maine DMR’s response was
reasonable and motivated by a desire to protect public health. Id. at 25-27.
3.

Public Nuisance

Mr. Wyman argues that “it is nothing short of absurd to claim that there is
room for argument about the unreasonableness of Mallinckrodt’s [Predecessor’s]
discharges” or that a further record on this topic needs to be developed, in light of
what is known “about the devastating effect on the environment, wildlife, and aquatic
life, resulting from the most horrific contamination in the history of the State of
Maine after 19 years of litigation and given what we know from the former and now
deceased plant manager about how this all came about . . ..”

Id. at 27-28.

Additionally, Mr. Wyman argues that the record is uncontroverted that the Maine
DMR “acted out of a statutory mandate to protect the public health, period” in

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deciding to close areas of the Penobscot River estuary, and there can be no argument
that they acted out of a desire “to protect the lobster brand.” Id. at 28.
4.

Strict Liability

With regard to his statutory strict liability claim, Mr. Wyman first cites Bernier
v. Raymark Industries, Inc., 516 A.2d 534 (Me. 1986), for the proposition that “a
wrongdoer may be held liable under a strict liability statute where the conduct
occurred before the statute was enacted but the harm giving rise to the accrual of a
cause of action occurred after the enactment,” and thus argues that whether the
statute under which he brings his statutory strict liability applies retroactively is
immaterial. Pls.’ Reply at 28-29. Second, Mr. Wyman argues that Mallinckrodt and
U.S. Surgical admit “that the vast majority of their mercury discharges occurred from
1967 to 1971, well before they were regulated by the Clean Water Act,” and so their
argument that “Maine DEP regulations exclude from the definition of hazardous
waste point source discharges subject to regulation under Section 402 of the Clean
Water Act” must fail. Id. at 29. Third, Mr. Wyman calls Mallinckrodt and U.S.
Surgical’s argument, that Mallinckrodt’s Predecessor’s release of mercury did not
constitute release of regulated hazardous waste because it did not generate 100
kilograms or more per month of mercury waste or accumulate 600 kilograms or more
per month, “absurd on its face.” Id. Mr. Wyman claims that “[t]he notion that the
[Maine] DEP regulations allow the discharge of 220.46 pounds of toxic mercury per
month into a river without regulation makes no sense and is indeed simply not true,”

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as the regulation cited by Mallinckrodt and U.S. Surgical applies only to the
generation of hazardous waste, not to its discharge. Id. at 29-30.
With regard to his common law strict liability claim, Mr. Wyman cites Ventron
for the proposition that “the record is fully developed for purposes of concluding that
Mallinckrodt [and U.S. Surgical] should be held strictly liable as a matter of law . . ..”
Pls.’ Reply at 30 (emphasis omitted). Furthermore, according to Mr. Wyman, “[e]ven
if ignorance of the consequences of discharges of highly toxic mercury waste were a
defense,” Mallinckrodt and U.S. Surgical have yet to produce evidence that they were
in fact ignorant. Id. at 31. Additionally, Mr. Wyman views the “issue of whether an
activity is abnormally dangerous” as being an issue for the Court, rather than a jury,
and asserts that the record is sufficiently complete for the Court to make such a
finding. Id.
IV.

LEGAL STANDARD
A grant of summary judgment is proper when “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). “Genuine issues of fact are those that a
factfinder could resolve in favor of the nonmovant, while material facts are those
whose ‘existence or nonexistence has the potential to change the outcome of the suit.’”
Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting
Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56
(1st Cir. 2011)).

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Once the moving party “has made a preliminary showing that there is no
genuine issue of material fact, the nonmovant must ‘produce specific facts, in suitable
evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.
City of Newburyport, 252 Fed. App’x 328, 332 (1st Cir. 2007) (alteration in original)
(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
The nonmoving party must show “‘enough competent evidence’ to enable a factfinder
to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231,
237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d 1113, 1116
(1st Cir. 1993)). The Court then “views the facts and draws all reasonable inferences
in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632
F.3d 31, 35 (1st Cir. 2011), while disregarding “[c]onclusory allegations, improbable
inferences, acrimonious invective, or rank speculation.” Mancini, 909 F.3d at 38
(quoting Ahern, 629 F.3d at 54).
When determining an issue of state law in the absence of controlling authority
from that state’s highest court, the Court “must make an ‘informed prophecy’ as to
how the state’s highest court . . . would rule if faced with the issue.” Lawless v.
Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir. 2018) (quoting Sanders v.
Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)). In order to do so, the Court “may
look to ‘analogous decisions, considered dicta, scholarly works, and any other reliable
data tending convincingly to show how the [state’s highest court] would decide the
issue at hand.’” Id. (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38
(1st Cir. 2001)).

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V.

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DISCUSSION
A.

Issue Preclusion

Federal common law governs whether a federal court should give preclusive
effect to a prior federal court adjudication, Faigin, 184 F.3d at 78, and requires a
party seeking to preclude litigation of an issue by reference to a previous adjudication
to establish:
(1) that the issue to be precluded is the same as that disputed in a prior
proceeding, (2) that the issue was actually litigated in the earlier
proceeding, (3) that the issue was determined by a valid and binding
final judgment or order, and (4) that the determination of the issue in
the prior proceeding was essential to the final judgment or order.
Enica v. Principi, 544 F.3d 328, 337 (1st Cir. 2008). The party invoking collateral
estoppel has the burden to establish each element. Hoult v. Hoult, 157 F.3d 29, 3132 (1st Cir. 1998).
“For non-mutual offensive issue preclusion, however, these traditional
elements are necessary but not sufficient,” In re Light Cigarettes, 691 F. Supp. 2d at
243, and a court should consider multiple additional policy concerns:
First, offensive issue preclusion does not necessarily promote judicial
economy; plaintiffs are incentivized to “wait and see” because they can
“rely on a previous judgment against a defendant but will not be bound
by that judgment if the defendant wins.” Second, if a defendant in the
first action is sued for small or nominal damages, the party “may have
little incentive to defend vigorously, particularly if future suits are not
foreseeable.” Third, offensive issue preclusion may be unfair to a
defendant “if the judgment relied upon as a basis for the estoppel is itself
inconsistent with one or more previous judgments in favor of the
defendant.” Finally, offensive issue preclusion may be unfair where “the
second action affords the defendant procedural opportunities
unavailable in the first action that could readily cause a different
result.”

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In re Light Cigarettes, 691 F. Supp. 2d at 243-44 (quoting Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 330-31 (1979)). The Supreme Court in Parklane stated that the
“presence or absence of a jury as factfinder is basically neutral . . ..” 439 U.S. at 332
n.19. Trial courts have “broad discretion” to determine when to apply offensive issue
preclusion, which is generally not appropriate “where a plaintiff could easily have
joined in the earlier action or where, either for the reasons discussed above or for
other reasons, the application of offensive estoppel would be unfair to a defendant.”
Id. at 331.
The Court declines, in this case, to apply non-mutual offensive issue preclusion
in these circumstances.
1.

Actuality of Litigation and Centrality of Findings

In his motion, Mr. Wyman lists seven purported rulings on which he relies.
Pls.’ Mot. at 16-17. The first two rulings are not in dispute, as Mallinckrodt and U.S.
Surgical have admitted them: (1) that Mallinckrodt’s Predecessor discharged
significant quantities of mercury, resulting in contamination of the Penobscot River
estuary with highly toxic methylmercury, Defs.’ Opp’n at 16 (“there is no dispute that
the Orrington plant was a contributor of mercury to the system”); and (2) “that
Mercury is being converted in the Penobscot River estuary by bacteria into
methylmercury.” DRPSMF ¶ 61. The remaining five findings of fact raised by Mr.
Wyman, however, are controverted, and the Court addresses each to determine
whether it was in fact litigated or central to an adjudication in the Federal RCRA
Case.

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a.

Ruling Three:
Contamination

Dominant

Source

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of

Mercury

Mr. Wyman asserts that the Court in the Federal RCRA Case ruled that
Mallinckrodt’s Predecessor’s discharges were “the dominant source of the mercury
contamination of the Penobscot River . . ..” Pls.’ Mot. at 16. Mr. Wyman is referring
here to language from Judge Carter’s 2002 order, in which he stated, “The evidence
was clear that Mallinckrodt has been a dominant source of mercury in the Penobscot
River,” citing two portions of the trial transcript for the Phase I trial. Me. People’s
All., 211 F. Supp. 2d at 255. This language was quoted by the First Circuit in its
affirmance of Judge Carter’s order. See Me. People’s All. v. Mallinckrodt, 471 F.3d
277, 280, 285, 298 (1st Cir. 2006).
The Court first notes that Mr. Wyman inaccurately refers to Judge Carter’s
statement. Judge Carter referred to Mallinckrodt as “a dominant source,” not “the
dominant source.” The distinction makes a difference. The word “dominant” has two
definitions relevant in this context: first is “commanding, controlling, or prevailing
over all others;” second is “very important, powerful, or successful.”

Dominant,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). If Judge Carter meant
the first definition, he would not have said “a dominant source;” he would have
written, “the dominant source.” By his careful choice of language, Judge Carter was,
in the Court’s view, using “dominant” in the second, not the first, sense.
Additionally, the Court does not find that Judge Carter’s use of the word
“dominant” constituted a ruling. A determination that Mallinckrodt’s Predecessor
was a dominant source of mercury into the Penobscot River was not necessary to a
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decision on the merits under the RCRA standard, which required only a finding that
Mallinckrodt’s Predecessor “contributed . . . to the past . . . handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may
present

an

imminent

and

substantial

endangerment

to

health

or

the

environment . . ..” 42 U.S.C. § 6972(a)(1)(B). Thus, use of the word “dominant” was
dicta, and cannot bind Mallinckrodt and U.S. Surgical in this litigation. See Sexual
Minorities Uganda v. Lively, 899 F.3d 24, 29 (1st Cir. 2018) (explaining that
statements that do not “have any bearing on the analytical foundations of the
dispositive order or impact the result” are dicta that “lack any binding or preclusive
effect”). That the language was repeated by the First Circuit in its affirmance of
Judge Carter’s order does not transform it into a ruling with preclusive effect.
Mr. Wyman excellently frames the argument—both in his motion and at oral
argument—that the Court should not be “tempted to speculate that a prior decision
could have rested on narrower grounds than those actually chosen . . ..” Pls.’ Mot. at
21 n.19 (quoting 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H.
COOPER, FEDERAL PRACTICE & PROCEDURE § 4421 (3d ed. 2017 update)); see also Tr.
of Proceedings, Oral Arg. at 60:21-61:05 (ECF No. 95) (Oral Arg. Tr.). Mr. Wyman
quotes Hoult, Pls.’ Mot. at 21 n.19, for the proposition that “a finding is ‘necessary’ if
it was central to the route that led the factfinder to the judgment reached, even if the
result ‘could have been achieved by a different, shorter and more efficient route.’”
Hoult, 157 F.3d at 32 (quoting Commercial Assocs. v. Tilcon Gammino, Inc., 998 F.2d
1092, 1097 (1st Cir. 1993)). But as Hoult makes clear, “[t]elling a party that it cannot

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prove or contest a fact of importance in the case at hand is a severe measure” and
“Courts have been willing to take that step only where it is certain that the issue has
already been decided in a prior case . . ..” Id. Mr. Wyman himself repeats this point,
quoting Commercial Associates for the proposition that issue preclusion is only
appropriate if “a factual issue w[as] vigorously litigated in a prior proceeding . . ..”
Pls.’ Mot. at 21 n.19 (quoting Commercial Assocs., 998 F.2d at 1097).
Mallinckrodt and U.S. Surgical point to the record evidence Judge Carter
relied on for the “dominant source” language and note that “the trial testimony Judge
Carter cited . . . referred to operations of the plant over its entire lifetime (through
2001), not just pre-1982 operations under [Mallinckrodt’s Predecessor’s] ownership,”
and that the same witness who gave that testimony “also testified that he could not
determine whether the plant was a significantly greater source of mercury to the river
before 1971 than it was in later years.” Defs.’ Opp’n at 16-17. The Court reviewed
the record and agrees with Mallinckrodt and U.S. Surgical that whether
Mallinckrodt’s Predecessor alone was a dominant source of mercury has not been
actually litigated, as the parties in the Federal RCRA Case were reasonably focused
on the RCRA “contributed to” standard. 140 See Footnote 51, supra.

One issue, for example, is the extent to which the background level of mercury as opposed to
the mercury Mallinckrodt’s Predecessor discharged predominates as the source of mercury in the
Penobscot estuary. Amec concluded that the background concentration of mercury in sediment in the
area is 180 nanograms per gram. Phase III Engineering Study Report at 6-3, Me. People’s All. v.
Holtrachem Mfg. Co. (No. 1:00-cv-00069-JAW), ECF No. 972 (Phase III Report) (“It should be noted
that remediation to total mercury concentrations at or below background (180 ng/g) would be
technically impractical to achieve, given the likelihood of continuing sediment migration and
redistribution in the Penobscot River as well as specifically in the Estuary”). Stacey Ladner of the
Maine DEP agreed that there is a region-wide mercury issue due to atmospheric deposition of mercury.
See DSAMF ¶ 149. Further, Amec also wrote that “[o]verall, mercury concentrations in aquatic biota
(lobster . . .) in the Penobscot River either are generally decreasing (0.2 to 6.5 percent annual decline),
140

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b.

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Ruling Four: Substantial and Unacceptable Risk to
Public Health

Mr. Wyman argues that the Court in the Federal RCRA Case ruled that
Mallinckrodt’s Predecessor’s discharges of mercury pose “a substantial and
unacceptable risk to public health, especially for sensitive populations . . ..” Pls.’ Mot.
at 16 (citing PSMF ¶¶ 49-52, 59, 61-72). Mr. Wyman bases this argument on several
statements from the Federal RCRA Case. First is Judge Carter’s statement:
It is now established in the record that mercury (Hg) deposited in the
Penobscot River in significant quantities and to substantial negative
effect from the [Orrington Plant] has and is now in the process of
methylation posing a danger to the health of the wildlife in the River
and risks of a substantial nature to the well-being of human beings who
ingest the products of the River. That is the distillation of the factual
predicate on which this case is to proceed.
indicating the potential for some natural attenuation, or are stable.” Phase III Report at 2-10. The
Amec report also concluded:
Because pre-remediation risks for both the 2014 and 2016 closure areas were below
acceptable levels and lobster is an important economic resource for the State of Maine,
a more conservative risk reduction approach was undertaken for lobster consumption
using an upper-bound BSAF. Under this more conservative risk reduction approach
(using the upper bound BSAF), no remedial action is needed to meet acceptable risk
levels for the lobster based on the local consumer consumption rates.
Id. at 6-4. Further, the parties have agreed that Maine has adopted 200 nanograms per gram as the
FTAL for methylmercury. DSAMF ¶ 61; PRDSAMF ¶ 61. However, the Amec report elsewhere found
that the “[t]he percentage of lobster with mercury concentrations in excess of the [Maine] CDC fish
tissue action level of 200 ng/g generally decreases downstream.” Phase III Biota Monitoring Report at
3-15, Me. People’s All. v. Holtrachem Mfg. Co. (No. 1:00-cv-00069-JAW), ECF No. 982. At the same
time, the Amec report observed that “the percentage of action mercury concentrations above the action
level at South Verona (90 percent) does not follow the general decreasing pattern downstream.” Id. at
3-15-16.
As the parties have not placed these portions of the Amec report before the Court in this motion
for summary judgment, the Court has not considered them to rule on the motion. The Court refers to
the Amec report to illustrate the complexity of the issues before the Court, including the background
concentration of mercury, the concentration of mercury in lobsters in the closed area, consumer
advisories about the consumption of lobster, the assumed rates of local lobster consumption, the
natural attenuation rate, whether the Verona Island area is an exception to natural attenuation and,
if so, why, the prospects for remediation, and the regulatory stance of the Maine DMR. These
considerations start the conversation and here the Court is discussing only the beginning of the
analysis and has not addressed such issues as other potential sources of mercury contamination and
whether Mallinckrodt and/or U.S. Surgical’s contribution has been or remains dominant as against
the background concentration and the potential of mercury from other sources.

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Additional Attachs., Attach. 5, Ex. 24: Order Approving Phase I Report (ECF No. 58)
(Order Approving Phase I Report). Second is this Court’s statement in the Federal
RCRA Case that “the Penobscot River estuary remains unacceptably contaminated
with mercury,” a finding that “update[d] and reiterate[d] Judge Carter’s 2002 finding
of ‘imminent and substantial endangerment to public health and the environment.’”
Order on Remediation Plan, 2015 WL 5155573, at *28 (quoting Me. People’s All., 211
F. Supp. 2d at 251). Third is Judge Carter’s and this Court’s description of the effects
of methylmercury on humans. Me. People’s All., 211 F. Supp. 2d at 245-46; Order on
Remediation Plan, 2015 WL 5155573, at *21.
The RCRA causation standard requires a finding that disposal of hazardous
waste “may present an imminent and substantial endangerment to health or the
environment . . ..” 42 U.S.C. § 6972. This was a central issue to Phase I of the Federal
RCRA Case, and it has been thoroughly litigated throughout that case, as the rulings
raised by Mr. Wyman demonstrate. The Court does not view this question as being
in dispute in this litigation. However, to the extent that Mr. Wyman is relying on
these statements to establish either that Mallinckrodt’s Predecessor’s disposal of
mercury did indeed damage public health or the level of danger to public health posed
by the mercury disposals, these issues have not been litigated, and Mallinckrodt and
U.S. Surgical should have the opportunity to do so here. 141

While Mr. Wyman does not say so explicitly, the Court infers from Mr. Wyman’s list of rulings
that Mr. Wyman is relying on these statements to establish that the public health consequences of
Mallinckrodt’s Predecessor’s mercury disposals led directly to the Maine DMR’s fishery closures. The
Court finds that the statements Mr. Wyman relies on for what he terms “Ruling 4,” Pls.’ Mot. at 16, do
not provide sufficient support to make out this conclusion, and this factual issue has not been litigated.

141

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c.

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Ruling Five: Resulting in Closure of Fishing
Grounds

Mr. Wyman alleges that the Court in the Federal RCRA Case ruled that the
public health risk from Mallinckrodt’s Predecessor’s discharges of mercury “result[ed]
in the closure of fishing grounds by [the Maine] DMR in 2014 based on the sampling
of shellfish recorded in the PRMS showing levels in excess of the threshold for
mercury in seafood of 200 ng/g wet wt. . . . set in the [FTAL] by [the Maine] CDC . . ..”
Pls.’ Mot. at 16. For this ruling, Mr. Wyman relies on this Court’s statements in the
Federal RCRA Case that the Court “accept[ed] [the 2014 Closure] as directly related
to the level of mercury in the Penobscot estuary” and that “the Court view[ed] the
M[aine] DMR closure from lobstering and crabbing of a large area at the mouth of
Penobscot Bay as a game-changer.” Order on Remediation Plan, 2015 WL 5155573,
at *28.
As Mr. Wyman rightly wrote about the statements in this Court’s September
2, 2015 Remediation Order, “the Court will decide what was meant. . ..” Pls.’ Reply
at 8. To place this comment in context, in the Phase II Trial, the Court heard nearly
a month of testimony and reviewed volumes of documents, almost all of which was
generated in June 2014. The Maine DMR made its closure permanent on May 14,
2014, just before the Court presided over the month-long hearing. As the Court
observed in its September 2, 2015 Remediation Order, “[m]uch of the Study Panel’s
attention was directed to Mendall Marsh,” but there was “a separate area of concern,”
namely the “area of the Penobscot River just before it opens up into Penobscot Bay.”
Order on Remediation Plan, 2015 WL 5155573, at *26. No one—not Maine People’s
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Alliance, not Mallinckrodt, not even the Study Panel—had focused on the area of the
Penobscot River that Maine DMR closed to lobster and crab fishing. There was some
testimony about this area, specifically (ironically enough) testimony from Mr. Wyman
himself, but there was no testimony from state officials as to why they issued the
emergency closure.
The Court’s comment in 2015 was in response to Mallinckrodt’s arguments
that “the River is recovering faster than the Study Panel estimates,” “the Penobscot
River [was] less contaminated than the Phase II Report suggests,” “the mercury levels
found in Penobscot biota” were within “the range of values found in widely consumed
seafood in the United States,” and Mr. Wyman had failed to demonstrate any actual
harm. Id. at *11-*13 (internal quotations omitted). From the Court’s perspective,
the 2014 Closure, which the Maine DMR said was in part due to the Study Panel’s
report, challenged the strength of Mallinckrodt’s arguments and Mallinckrodt had
not effectively responded to the implications of the closure on its presentation.
Although the fact of the closure and Maine DMR’s stated reasons for doing so were
before the Court as evidence, the parties’ lack of attention to the closure left the Court
with the Maine DMR statement and the fact of closure, but little else on this narrow
issue. In other words, the 2014 Closure was a game-changer because it had not been
adequately addressed, explained or refuted. As such, the Court does not consider the
fact that it addressed the 2014 Closure in 2015 to preclude its consideration of the
issue in 2020.

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d.

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Ruling Six: Demonstrating Extent of Adverse Health
Effects

Mr. Wyman states that the Court’s statement in the Federal RCRA Case that
it “view[ed] the M[aine] DMR closure from lobstering and crabbing of a large area at
the mouth of the Penobscot Bay as a game-changer,” Order on Remediation Plan,
2015 WL 5155573, at *28, supports the conclusion that the 2014 Closure
“demonstrate[ed] the extent of the adverse health effects resulting from
Mallinckrodt’s [Predecessor’s] mercury contamination . . ..” Pls.’ Mot. at 17. The
beginning of the Court’s sentence, however states, “Although the parties fenced over
the exact degree of harm from the current level of mercury contamination throughout
the estuary,” Order on Remediation Plan, 2015 WL 5155573, at *28, and the Court
did not resolve this question in the Federal RCRA Case as resolution of that issue
was not necessary under the RCRA standard.

As the Court has discussed,

Mallinckrodt and U.S. Surgical have not yet had an opportunity to litigate the actual
public health consequences of Mallinckrodt’s Predecessor’s mercury discharges, and
the Court does not view it as appropriate to preclude them from doing so.
e.

Ruling Seven: Continuing Effects

Mr. Wyman cites several portions of this Court’s 2015 order in the Federal
RCRA Case for the proposition that the effects of Mallinckrodt’s Predecessor’s
mercury discharges “will continue for a long duration unless remedied.” Pls.’ Mot. at
17 (citing PSMF ¶ 60 (citing Order on Remediation Plan, 2015 WL 5155573)). Mr.
Wyman does not quote any portions of the Court’s orders in the Federal RCRA Case,
so the Court is not sure exactly what language he is referring to. However, this
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statement presupposes public health risks from the mercury discharges, and the
Court has already found that this has not previously been litigated. The Court
therefore cannot apply preclusive effect to it.
2.

Identity of Issues

Mr. Wyman cites Manganella for the proposition that “[i]ssue preclusion ‘can
apply where the subsequent proceeding involves a cause of action different from the
first.’” Id. at 18 (quoting Manganella, 700 F.3d at 591). But Manganella goes on to
make clear that this is only the case when “the issues are in substance identical.” 700
F.3d at 591. In the Federal RCRA case, the plaintiffs had only to establish that
Mallinckrodt’s Predecessor had “contributed . . . to the past . . . handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste which may
present

an

imminent

and

substantial

endangerment

to

health

or

the

environment . . ..” 42 U.S.C. § 6972(a)(1)(B); see also Me. People’s All., 211 F. Supp.
2d at 246 (stating that RCRA liability does not turn on a showing that “the
contamination is harming, or will harm, health or the environment” and “[a] finding
that an activity may present an imminent and substantial endangerment does not
require a showing of actual harm”).

This is substantially different from the

requirement, for Mr. Wyman’s public nuisance and strict liability claims, that he
establish that Mallinckrodt and U.S. Surgical actually caused his harm. See 17
M.R.S. § 2701 (requiring person bringing statutory nuisance action to establish injury
to his or her “comfort, property or the enjoyment of” his or her estate); 38 M.R.S. §
1319-U(5) (requiring person bringing statutory strict liability action to establish that

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his or her “health, safety or welfare” has been endangered by the disposal or
treatment of hazardous waste); Restatement Torts § 821C(1) (stating that to recover
damages in a common law public nuisance action, a person must show that he or she
has “suffered harm of a kind different from that suffered by other members of the
public exercising the right common to the general public that was the subject of
interference”); Restatement Torts § 519(1) (“One who carries on an abnormally
dangerous activity is subject to liability for harm to the person, land or chattels of
another resulting from the activity”).
The Supreme Court has stated that “[i]ssues are not identical if the second
action involves application of a different legal standard, even though the factual
setting of both suits may be the same.” B & B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 154 (2015) (quoting 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, &
EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE § 4417 (2d ed. 2002)). The
Court concludes that the causation standard for RCRA is significantly broader than
that under public nuisance or strict liability, and the issues here are not identical.
Mr. Wyman cites the Fifth Circuit case of Cox for the proposition that “[i]t is
particularly appropriate to give RCRA findings preclusive effect to [his] public
nuisance claims because ‘[n]uisance principles form the core doctrinal foundation for
modern environmental statutes, including the RCRA.’” Pls.’ Mot. at 18-19 (alteration
in original) (emphasis omitted) (quoting Cox, 256 F.3d at 289); see also Oral Arg. Tr.
at 59:13-15. But Mr. Wyman has not shown the Court any case in which findings in
a RCRA case have been applied to establish causation in a later nuisance case. In

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the Court’s view, the fact that RCRA was based on nuisance principles does not mean
that the causation principles for RCRA and nuisance are substantially similar,
particularly as Mr. Wyman acknowledges that “[s]ome terms and concepts [in RCRA]
. . . [are] meant to be more liberal than their common law counterparts.” Pls.’ Mot. at
19 n.16 (some alterations in original) (quoting Cox, 256 F.3d at 291).
In Mr. Wyman’s reply memorandum, he brings up two further arguments on
this point: First, he argues that the RCRA causation standard is similar to the
“substantial factor” test used in Maine “to define common law causation,” 142 Pls.’
Reply at 14; second, he argues that the RCRA causation standard incorporates
common law principles of joint-and-several liability. Id. at 15-16. Mr. Wyman’s
decision to include these arguments in his reply, as opposed to his initial motion,
violates District of Maine Local Rule 7(c), which requires that a reply memorandum
be “strictly confined to replying to new matter raised in the objection or opposing
memorandum.” D. ME. LOC. R. 7(c). Mr. Wyman did not include arguments related
to joint-and-several liability or the substantial factor test in his moving brief, see Pls.’
Mot. at 18-20, and Mallinckrodt and U.S. Surgical did not raise these issues in their
response. Defs.’ Opp’n at 20-22. Thus, as a matter of fairness, the Court hesitates to
consider these arguments by Mr. Wyman. Mallinckrodt and U.S. Surgical have not
had an opportunity to respond, and in considering these arguments, the Court is
therefore put in the uncomfortable position of advocate, having to examine Mr.
Wyman’s arguments independent of response to determine potential weaknesses. See

142

Mr. Wyman also raised this argument at oral argument. See Oral Arg. Tr. at 58:22-60:02.

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Goldenson v. Steffens, No. 2:10-cv-00440-JAW, 2013 WL 145587, at *9 (D. Me. Jan.
14, 2013) (“The failure to raise issues in the first instance is to be discouraged because
it circumvents the normal process for airing issues and may be used strategically for
the movant to gain an unfair advantage, remaining silent on an important issue in
hopes that the non-movant does not raise it”). The Court considers these arguments
by Mr. Wyman waived.
Even if this were not the case, however, the Court does not find these
arguments meritorious. The tort “substantial factor” test is once again narrower than
the RCRA test, requiring that a tortfeasor’s conduct “be a substantial cause of the
damages,” Cty. Forest Prods., Inc. v. Green Mountain Agency, Inc., 2000 ME 161, ¶ 49,
758 A.2d 59, 72, while RCRA requires only that the wrongdoer be a contributor.
Additionally, as noted above, while RCRA requires only that a wrongdoer release
waste of a type that could contribute to a risk of harm, tort liability requires actual
harm. With regard to joint and several liability, Mallinckrodt and U.S. Surgical have
credibly alleged that new techniques have arisen in the intervening years between
now and Judge Carter’s finding that the contamination of the Penobscot River was
“indivisible,” Me. People’s All., 211 F. Supp. 2d at 255, that allow them to actually
disaggregate sources of mercury in the Penobscot River estuary. See DRPSMF ¶ 57.
Mallinckrodt and U.S. Surgical should have the opportunity to put this evidence
before a finder-of-fact, just as Mr. Wyman should have the opportunity to challenge
it.

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3.

PageID #: 2531

Efficiency and Fairness

The sum of Mr. Wyman’s argument regarding the additional policy
considerations raised by the imposition of non-mutual offensive issue preclusion is
his statement in his motion that none of these “factors . . . are relevant to this case.”
Pls.’ Mot. at 23. The Court disagrees. First, as Mallinckrodt and U.S. Surgical argue,
they have a variety of affirmative defenses here “that were unavailable to them in
the federal RCRA case.” Defs.’ Opp’n at 27. These affirmative defenses—including
statute of limitations, intervening and superseding cause, comparative fault, and
coming to the nuisance, id. at 27-29—have not previously been litigated, and it would
be unfair to deprive Mallinckrodt and U.S. Surgical of an opportunity to develop the
record on these issues. Second, as Mallinckrodt and U.S. Surgical note, id. at 29, this
Court has previously “given weight to the deprivation of a jury trial” in determining
whether non-mutual offensive issue preclusion should apply and found that it
weighed against its application. In re Light Cigarettes, 691 F. Supp. 2d at 251. Third,
any trial on damages—which Mr. Wyman acknowledges will be required in any event,
see Pls.’ Mot. at 17—will necessarily require extensive discovery, including expert
discovery, and will require a significant expenditure of the Court’s time. Fourth, the
Court’s discussion of the possibility for jury confusion in In re Light Cigarettes is
applicable here:
Punitive damages may not be used to “punish a defendant for injury that
it inflicts upon nonparties.” [Philip Morris USA v. Williams, 549 U.S.
346, 353 (2007)]. If issue preclusion were imposed, however, much of
the Defendants' underlying liability would be based in part on actions
that inflicted injuries upon nonparties.
Despite instructions to
compartmentalize certain factual findings, the jury could be confused
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about what facts may or may not be considered when determining
punitive damages. Grisham [v. Philip Morris, Inc., 670 F. Supp. 2d
1014, 1037 (C.D. Cal. 2009)] (raising the same concern).
691 F. Supp. 2d at 251 (emphasis omitted).

Because Mr. Wyman has not satisfied

the Court that he has met the traditional requirements of issue preclusion and
because additional fairness considerations weigh against its application, the Court
declines to apply the doctrine of issue preclusion to the factual findings raised by Mr.
Wyman.
B.

Proximate Cause

“Evidence is sufficient to support a finding of proximate cause if the evidence
and inferences that may reasonably be drawn from the evidence indicate that the
[defendant’s actions] played a substantial part in bringing about or actually causing
the injury or damage” and “that the injury or damage was either a direct result or a
reasonably foreseeable consequence of” the defendant’s actions. Crowe v. Shaw, 2000
ME 136, ¶ 10, 755 A.2d 509. “The question of whether a defendant's acts or omissions
were the proximate cause of a plaintiff's injuries is generally a question of fact . . ..”
Houde v. Millett, 2001 ME 183, ¶ 11, 787 A.2d 757.
The Court has a difficult time squaring Mr. Wyman’s argument that the 2014
and 2016 Closures were caused by the Maine DMR’s foreseeable reaction to a public
health issue caused by Mallinckrodt with his argument that “[p]rior to the two
closures of the fishing grounds by the [Maine] DMR, the mercury contamination in
the Penobscot estuary did not affect [Mr. Wyman’s] business in any way.” Pls.’ Reply
at 9 (alteration in original) (quoting PSMF ¶ 89). Mr. Wyman, in other words, is

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asserting that were it not for the closures, he would still be fishing in the closed
locations and would have no problem selling his lobsters and crabs. 143

This is

different from the cases Mr. Wyman raised in his motion. See Pls.’ Mot. at 24. In
Burgess v. M/V Tamano, the fishermen and clammers bringing claims were alleging
that it was the pollution of the water itself that was the source of their injury. 370 F.
Supp. 247, 250 (D. Me. 1973). Similarly, in Curd v. Mosaic Fertilizer, LLC, the injury
plaintiffs were alleging was loss of marine life as a result of pollution. 39 So. 3d 1216,
1218 (Fla. 2010) (“The fishermen claim that the spilled pollutants resulted in a loss
of underwater plant life, fish, bait fish, crabs, and other marine life”). It is not clear
that consequences flowing from discretionary decisions of government agencies are
the type of harm contemplated by the torts of nuisance and strict liability, and
Mallinckrodt and U.S. Surgical raised two cases suggesting that they are not. See
Defs.’ Opp’n at 33-34 (citing Benefiel v. Exxon Corp., 959 F.2d 805, 807-08 (9th Cir.
1992); Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 881-82 (N.D.
Cal. 2009)).
Mr. Wyman states that “[t]he only argument available to Mallinckrodt [and
U.S. Surgical] in the circumstances of this case is to claim that the chain of causation,
with its known foreseeable consequences, was broken because the decision by [the
Maine] DMR to issue the closures was the result of an arbitrary and capricious
administrative action . . ..” Pls.’ Mot. at 41. Mr. Wyman cites no caselaw for this
proposition, and the Court does not view non-movants Mallinckrodt and U.S.

143

Mr. Wyman reiterated this position at oral argument. See Oral Arg. Tr. at 65:07-19.

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Surgical’s burden as being so high. Rather, in the Court’s view, it is enough for them
to show on this motion for summary judgment that a factfinder could plausibly find
that the Maine DMR’s closures were not a reasonably foreseeable result of
Mallinckrodt’s Predecessor’s activities. 144
Mallinckrodt and U.S. Surgical have made such a showing. They have put
forward evidence that the Maine CDC and Amec do not believe that lobsters from the
Closure Area present an actual health concern. Defs.’ Opp’n at 34-35. They have also
established a genuine dispute as to whether the Maine DMR’s decision regarding the
closures was in fact a reaction to public health by raising a number of different factors
considered by the agency, such as the perception of the Maine lobster brand. Id. at
35. Furthermore, over thirty years passed between Mallinckrodt’s Predecessor’s last
discharge and Maine DMR’s 2014 Closure. Id. at 34. Whatever Mr. Wyman thinks
of the merits of this argument, a reasonable factfinder could find, on this record and
taking all inferences in favor of the non-movants, that the Maine DMR’s closure
decisions constitute an intervening cause and break the chain of causation between
the contamination of the Penobscot River estuary and Mr. Wyman’s harm.
Because a genuine dispute exists as to whether Mr. Wyman has established
proximate causation between the mercury contamination and his injury, Mr. Wyman
is not entitled to summary judgment on his public nuisance or strict liability claims.
At oral argument, Mr. Wyman acknowledged that “reasonably foreseeable” was the proper
standard but seemed to argue that any discretionary action taken by the Maine DMR in relation to
the mercury contamination that was not arbitrary and capricious should be considered foreseeable.
Oral Arg. Tr. at 65:25-66:23. If that is indeed Mr. Wyman’s position, the Court views it as overly
broad. Discretionary actions are, by their nature, discretionary. Whether an agency has authority to
impose, or acted properly in imposing, a regulation is separate from whether that regulation is
reasonably foreseeable.

144

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C.

PageID #: 2535

Special Damages

Mr. Wyman argues that he has suffered special damages because “the two
closures by [the Maine] DMR prevented [him] from harvesting lobsters and crabs in
areas that had been highly productive for him without much competition and where
he had fined tuned his knowledge of where to place his traps and also subjected [him]
to serious noneconomic damages.” Pls.’ Mot. at 39. He states, without citing caselaw,
that “[t]hese are precisely the kind of special injuries that grant Plaintiffs standing
to bring common law public nuisance claims.” Id. Mallinckrodt and U.S. Surgical
argue that “[t]here is no competent evidence of an injury to any property right of” Mr.
Wyman and that, “[a]s Mr. Wyman himself stated, expert discovery is needed on” the
issue of whether his relative lobster landings have decreased since the 2014 Closure.
Defs.’ Opp’n at 39. They state that Mr. Wyman’s “‘subjective impressions’ of his loss
[are] insufficient to establish a special injury.” Id. (quoting Darney v. Dragon Prods.
Co., 771 F. Supp. 2d 91, 115 (D. Me. 2011)). Additionally, they argue that “there are
numerous factors that could have caused a drop in Mr. Wyman’s lobster landings in
the last several years, perhaps most notably his change of home zones in 2014” and
that “[w]hether the closure itself caused [Mr. Wyman’s] special harm is not
established on this record.” Id.
Taking all inferences in favor of the non-movants, there is a genuine dispute
over whether the state-imposed restriction on where Mr. Wyman may fish, without a
firm showing of resultant economic loss, constitutes special damages. At trial, Mr.
Wyman will be required to adduce evidence that moving his fishing grounds has

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actually caused damages to him beyond the speculative. Said another way, in the
context of a motion for summary judgment, where the Court is required to view
contested issues in the light most favorable to the non-movants, the record does not
allow a ruling that there is no genuine issue of material fact on the question of special
harm.
D.

Strict Liability

While Mr. Wyman’s failure to establish a lack of a genuine dispute as to
proximate cause and special damages means that he is not entitled to summary
judgment on his tort claims, the Court writes briefly on the issue of the retroactivity
of Mr. Wyman’s statutory strict liability claim. Mallinckrodt and U.S. Surgical assert
that the Maine Supreme Judicial Court has a presumption against the retroactive
applicability of statutes, Defs.’ Opp’n at 47 (quoting Terry v. St. Regis Paper Co., 459
A.2d 1106, 1109 (Me. 1983)), and that “the statute relied on [by Mr. Wyman] became
effective in September 1981, and there is no indication that the Legislature intended
38 M.R.S. § 1319-(U)(5) to have retroactive application.” Id.
In response, Mr. Wyman writes that “[t]he Maine Law Court has held that a
wrongdoer may be held liable under a strict liability statute where the conduct
occurred before the statute was enacted but the harm giving rise to the accrual of a
cause of action occurred after the enactment.” Pls.’ Reply at 28-29 (citing Bernier,
516 A.2d 534). Bernier is inapplicable. “The Maine Law Court has declined to extend
the holding in Bernier beyond the asbestos realm.” Descoteau v. Analogic Corp., 696
F. Supp. 2d 138, 141 (D. Me. 2010). If Mr. Wyman is to argue that 38 M.R.S. § 1319-

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U(5) may properly be applied retroactively, he will have to marshal additional
arguments that do not rely solely on Bernier.
Beyond his reliance on Bernier, Mr. Wyman writes that “[t]he civil liability
section of the statute was enacted in 1980” and “Mallinckrodt[‘s Predecessor] owned
and operated the Orrington [Plant] at that time and was still discharging mercury
for another 2 years with resulting contamination that could not be distinguished from
prior discharges in larger amounts.” Pls.’ Reply at 28. Whether the contamination
during particular periods can be disaggregated is an open question of fact, and
Mallinckrodt and U.S. Surgical will be entitled to bring evidence of disaggregation to
a jury.
VI.

CONCLUSION
The Court DENIES Kenneth F. Wyman, Jr. and F/V Megan K II LLC’s Motion

for Partial Summary Judgment on Liability and Causation for Counts I-II and III-IV
(ECF No. 52). 145
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 21st day of April, 2020

In light of the Court’s order denying Mr. Wyman’s Motion for Partial Summary Judgment, the
Court DISMISSES as moot Mallinckrodt and U.S. Surgical’s Rule 56(d) Motion to Deny or Defer
Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 63).

145

109