TCE clean-up costs trial set to begin next month at federal court in St. Louis

TCE clean-up costs trial set to begin next month at federal court in St. Louis

Source: https://stlrecord.com, December 19, 2018
By: Sam Knef

In a bench trial set for Jan. 22 involving responsibility for environmental contamination clean-up costs, U.S. District Judge has determined she will be the gatekeeper on expert testimony.

The case involves Cooper Industries’ claims against Spectrum Brands, Inc., as well as Spectrum’s counter-claims, over a Macon, Mo. plant where trichloroethylene (TCE) was discovered and remediation was necessary.

According to Perry’s Dec. 3 order, the predecessor of Cooper—McGraw Edison—sold property and some plant sites to the predecessor of Spectrum Brands—Toastmaster—under an asset purchase agreement in 1980. To determine responsibility for the cost of clean up, the sides have filed claims of contribution under the Comprehensive Environmental Response, Compensation, and Liability Act.

Perry denied motions in limine brought by both sides to exclude certain experts from testifying at what is expected to be a four-day trial. The purpose of excluding certain witnesses was to ensure that “only reliable and relevant expert testimony is presented to a jury,” Perry’s order states.

“In non-jury trials such as this one, there is less need for the Court to exercise this gatekeeping function ‘when the gatekeeper is keeping the gate only for [her]self,’” she wrote. “Thus, Daubert’s application is relaxed for bench trials.”

She further stated that a party’s “mere disagreement” with a witness’s assumptions and methodologies did not warrant exclusion of their testimony.

“If a party thinks other assumptions and methodologies are more appropriate, it may make this apparent through cross-examination and its own expert witnesses,” she wrote.

“I have substantial discretion in determining whether expert testimony should be allowed. If I am satisfied with the expert’s knowledge, skill, experience, training, or education, and the expert’s testimony is reasonably based on that expertise, admitting the testimony is not an abuse of discretion.”

Perry indicated that six hours of trial can be expected each day, with a total limit of 24 hours. She wrote that each side will have 12 hours to complete its case, and any time a party spends on examination or cross-examination will be counted toward the total, as will opening and closing arguments, and any motions or objections.

“Additionally, of course, any deposition testimony must either be played on video or read in court, and the time spent doing so will be included in the 12 hour time limit,” Perry wrote.

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