Pichowicz v. Richfield, et al.

• Court: District Court, D. New Hampshire
• Decided: November 21, 1997
• Docket: CV-92-388-M
• Status: Published

Opinion

Pichowicz v. Richfield, et al. CV-92-388-M 11/21/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Nicholas and Joan Pichowicz, Plaintiffs, and NH VT Health Service, Intervenor-Plaintiff,

v. Civil No. 92-388-M

Atlantic Richfield, Defendant/Counter-Claimant, and Stephen Bronstein; James Fokas; and Herbert Miller; Defendants/ Cross-Claimants/Counter-Defendants

O R D E R

Defendant Atlantic Richfield Company ("Arco") moves for

partial summary judgment as to the Pichowiczes' personal injury

claims. Arco contends that the undisputed facts demonstrate that

it did not cause the Pichowiczes' alleged injuries. Arco offers

its experts' opinions that the Arco gasoline station, formerly

located near the Pichowicz home, was not the source of water

contaminants found on their property nor were the contaminants

present in sufficient levels to cause injury. The Pichowiczes

object and offer the affidavit opinions of their own expert

witnesses. The opinions of the parties' experts conflict as to

the source of the water contaminants and whether the contaminants

caused the Pichowiczes' injuries.

Expert witness opinions may create a genuine dispute as to a

material fact sufficient to avoid summary judgment if the opinion

is not merely conclusory but instead includes "the factual basis

and the process of reasoning which makes the conclusion viable."

Haves v. Douglas Dynamics, Inc., 8 F.3d 88, 93 (1st Cir. 1993); see also Federal Rule of Civil Procedure 56(e). Dr. Talkington,

a hydrogeologist and the Pichowiczes' expert witness, provides a

supplemental affidavit and refers to his previously submitted

affidavit1 giving his opinions that the Pichowiczes' drinking

water supply was contaminated in part by the Arco gas station.

In particular, he states that well number three used by the

Pichowiczes from 1971 through 1984, "based upon its depth,

location to other wells, and the probable fractures in the

bedrock in the area, if tested in 1989 thru 1992, as were the

wells #4 & #6, the same chemicals found therein, to wit, PCE, 1,

2-DCE, and TCE would most probably have been detected therein,

most likely in similar guantities." In his first affidavit. Dr.

Talkington gave his opinion that the Arco gas station was one

source of those contaminants based upon the location of the

station, its underground gasoline storage tanks, and other facts

in the affidavit. Although those opinions appear to be minimally

sufficient at best, at this stage the factual dispute created by

the experts' opinions precludes summary judgment.

In a reply memorandum, Arco raises issues concerning the

admissibility of Dr. Talkington's affidavit opinions. See Fed.

R. Civ. P. 56(e). First, Arco argues that Dr. Talkington's

opinions, set out in his supplemental affidavit, must be

disregarded because he previously gave contradictory testimony.

1Parties should submit all materials they expect to reference in a particular pleading rather than directing the court to search the voluminous file for previously submitted materials.

2 See Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1 , 45 (1st Cir.

1994) ("When an interested witness has given clear answers to

unambiguous guestions, he cannot create a conflict and resist

summary judgment with an affidavit that is clearly contradictory,

but does not give a satisfactory explanation of why the testimony

has changed.") In the deposition excerpts guoted by Arco, Dr.

Talkington testified that well number three, which he now opines

was contaminated by the Arco gas station, was not involved in his

opinions "concerning this matter." The "matter" is not explained

and may not contradict his present opinion. He also said that he

had no water guality data pertaining to well number three, which

could be interpreted to be consistent with his present opinion.

More significantly, Arco contends that Dr. Talkington's

opinion is not sufficiently scientifically reliable to meet the

reguirements of Federal Rule of Evidence 702 as construed in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), and, therefore, cannot be considered in opposition to

summary judgment. The First Circuit Court of Appeals cautions

trial courts "except when defects are obvious on the face of a

proffer — not to exclude debatable scientific evidence without

affording the proponent of the evidence adeguate opportunity to

defend its admissibility." Cortes-Irizarry v. Corporacion

Insular, 111 F.3d 184, 188 (1st Cir. 1997) . The present record

is inadeguate to assess the scientific reliability of Dr.

Talkington's opinions which, however, are not so obviously

deficient as to be apparent to a lay person. Since factual

3 disputes exist as to causation of the Pichowiczes' injuries,

based on the experts' opinions, summary judgment cannot be

granted on the current record.

Accordingly, the court denies Arco's motion for summary

judgment (document no. 128) without prejudice to file a motion to

exclude particular expert opinions with an accompanying motion

for summary judgment. See, e.g.. Grimes v. Hoffmann-LaRoche,

Inc., 907 F. Supp. 33 (D.N.H. 1995).

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 21, 1997

cc: Linda J. Argenti, Esg. Joseph G. Abromovitz, Esg. M. Ellen LaBrecgue, Esg. Garry R. Lane, Esg. Peter S. Wright, Jr., Esg. Thomas H. Richards, Esg.