Thomas & Betts Corporation v. Alfa Laval, Inc. , 915 F.3d 36 ( 2019 )

United States Court of Appeals
For the First Circuit
Nos. 16-1133, 16-1134, 16-1189, 16-1204
THOMAS & BETTS CORPORATION,
Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,
v.
NEW ALBERTSON'S, INC.,
Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee,
ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;
BOSTON RENAISSANCE CHARTER SCHOOL, INC.;
SIEMENS INDUSTRY, INC.; ALLIS-CHALMERS ENERGY, INC.;
DAMPNEY COMPANY, INC.,
Third-Party Defendants, Appellees/Cross-Appellants/Cross-
Appellees,
JEANETTE YUKON, as General Partner of Yukon/Hyde Park Avenue
Limited Partnership; JEWEL FOOD STORES, INC.; STAR MARKETS
COMPANY; HYDE PARK MANAGER, INC., as Administrative Trustee for
W/S Cardinal Hyde Park-MA Trust; DAMPNEY COMPANY, INC.,
Third-Party Defendants, Appellees/Cross-Appellees.
Nos. 17-1360, 17-1361
THOMAS & BETTS CORPORATION,
Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,
v.
NEW ALBERTSON'S, INC.,
Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant,
ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;
BOSTON RENAISSANCE CHARTER SCHOOL, INC.;
SIEMENS INDUSTRY INC.; ALLIS-CHALMERS ENERGY, INC.;
DAMPNEY COMPANY, INC.,
Third-Party Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Howard Merten, with whom Paul M. Kessimian, Robert K. Taylor,
and Partridge, Snow, & Hahn LLP were on brief for appellant/ cross-
appellee.
C. Dylan Sanders, with whom Lisa C. Goodheart and Sugarman,
Rogers, Barshak, and Cohen, P.C. were on brief for New Albertson's,
Inc.; Jewel Food Stores, Inc.; Star Markets Company, Inc.; and
Hyde Park Manager, Inc.
Jonathon C. Burwood, with whom Hinshaw and Culbertson LLP
were on brief for Alfa Laval, Inc.
John T. Harding, with whom Lewis, Brisbois, Bisgaard, & Smith
LLP were on brief for appellee/cross-appellant Boston Renaissance
Charter School, Inc. and Boston Renaissance Charter Public School.
Eric L. Klein, with whom Marc J. Goldstein, Brook Detterman,
and Beveridge & Diamond, P.C. were on brief for Siemens Industry,
Inc. and Allis-Chalmers Energy, Inc.
A. Neil Hartzell, with whom LeClair Ryan, A Professional
Corporation were on brief for Jeanette Yukon.
Carolyn M. Miller, with whom Matthew C. Welnicki and Melick
& Porter, P.C. were on brief for Dampney Company, Inc.
February 6, 2019
BARRON, Circuit Judge. In 2007, at the direction of the
Massachusetts Department of the Environment ("MassDEP"), an
extensive cleanup of Mother Brook, a canal in Boston,
Massachusetts, began following its contamination by
polychlorinated biphenyls ("PCBs"). The cleanup ultimately
resulted in a 2010 lawsuit in which two parties -- Thomas & Betts
and New Albertson's -- brought Massachusetts law claims in the
United States District Court for the District of Massachusetts
against each other and various third parties. The claims, which
were primarily brought under § 4 of Chapter 21E, see Mass. Gen.
Laws ch. 21E, § 4, sought reimbursement for the money that Thomas
& Betts and New Albertson's each had spent on the cleanup.
After a lengthy trial, a jury rendered a special verdict.
The jury found, among other things, that Thomas & Betts was "liable
to" New Albertson's under § 4 of Chapter 21E for a portion of what
are known as the response costs that New Albertson's had incurred
in connection with the cleanup of the canal. The jury also found
that other parties (but not New Albertson's) were "liable to"
Thomas & Betts under § 4 of Chapter 21E for various portions of
the response costs that it had incurred in the cleanup. The jury
then allocated the percentage of the response costs that each of
the various parties were responsible for reimbursing to,
respectively, New Albertson's and Thomas & Betts.
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The District Court entered judgment based on the jury's
special verdict and awarded prejudgment interest, under § 6B or
§ 6H of Chapter 231, without specifying which applied, to New
Albertson's and Thomas & Betts on the funds that had been awarded
to each of them on their § 4 claims. The District Court then
entered a separate judgment in which it awarded New Albertson's
attorney's fees under § 15 of Chapter 21E. The consolidated
appeals that are now before us concern both judgments. We affirm
each of them.1
I.
To understand the many issues that we need to address,
we first provide some background on Chapter 21E and the cleanup of
Mother Brook. We then review the travel of the litigation.
A.
Chapter 21E is the Massachusetts version of the
Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA"), 42 U.S.C. §§ 9601-28. See John S. Boyd Co. v.
Boston Gas Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). The
Massachusetts Supreme Judicial Court ("SJC") has explained that
Chapter 21E, like its federal analogue, seeks "to compel the prompt
1 One of the appeals, No. 16-1204, has been brought by a
party -- Allis-Chalmers Energy, Inc. -- that was not found liable
by the jury. The appeal concerns the District Court's denial of
that party's motion for summary judgment. In light of our
disposition of the other appeals, we dismiss this appeal as moot.
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and efficient cleanup of hazardous material and to ensure that
costs and damages are borne by the appropriate responsible
parties." Bank v. Thermo Elemental Inc., 888 N.E.2d 897, 911
(Mass. 2008) (quoting Taygeta Corp. v. Varian Assocs., 763 N.E.2d
1053, 1059 (Mass. 2002)). To that end, whenever the MassDEP "has
reason to believe" that "hazardous material has been released" or
that there is a "threat" of such a release, it "is authorized to
take or arrange for such response actions as it reasonably deems
necessary." Mass. Gen. Laws ch. 21E, § 4.
Section 4 further provides that, when the MassDEP has
reason to believe that there has been such a release or the threat
of one, it must notify the "owner or operator of the site . . . of
its intent to take such action," except under certain circumstances
not relevant here.2 Id. Section 4 then provides that "[a]ny
person who undertakes a necessary and appropriate response action
regarding the release or threat of release of . . . hazardous
materials shall be entitled to reimbursement from any other person
liable for such release or threat of release for the reasonable
costs of such response action." Id. And, § 4 provides as well,
2
Chapter 21E defines a "site" as "any building, structure,
installation, equipment, pipe or pipeline, . . . well, pit, pond,
lagoon, impoundment, ditch, landfill, storage container, motor
vehicle, rolling stock, or aircraft, or any other place or area
where oil or hazardous material has been deposited, stored,
disposed of or placed, or otherwise come to be located." Mass.
Gen. Laws ch. 21E, § 2.
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"[i]f two or more persons are liable pursuant to section five [of
Chapter 21E] for such release or threat of release, each shall be
liable to the others for their equitable share of the costs of
such response action." Id.
Section 5(a) in turn spells out the "person[s]" who are
"liable" for such release or threat of release and to whom they
are "liable."3 The "person[s]" who are "liable" pursuant to § 5
for a release or threat of such release include, in relevant part:
"the owner or operator of . . . a site from or at which there is
or has been a release or threat of release of oil or hazardous
material," id. § 5(a)(1); "any person who at the time of storage
or disposal of any hazardous material owned or operated any site
at or upon which such hazardous material was stored or disposed of
and from which there is or has been a release or threat of release
of hazardous material," id. § 5(a)(2); and "any person who
otherwise caused or is legally responsible for a release or threat
of release of oil or hazardous material from a . . . site," id.
§ 5(a)(5). A "person" described in § 5(a) is, under § 5(a)(i),
"liable . . . to the [C]ommonwealth [of Massachusetts] for all
costs of assessment, containment and removal incurred . . .
3Chapter 21E defines a "release" as "any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment,"
save for several exceptions not relevant here. Mass. Gen. Laws
ch. 21E, § 2.
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relative to such release or threat of release;" and, under
§ 5(a)(iv), "liable . . . to any person for any liability that
another person is relieved of pursuant to [Mass. Gen. Laws ch.
21E, § 4.]"
These portions of the statute are relatively
straightforward. There is, however, one additional point about
the statute that is critical to bear in mind in considering the
analysis that follows, though it is quite technical. The point is
this.
Section 5(b) recognizes that a "person who is liable
solely pursuant to [§ 5(a)(1)]" -- a so-called "current
owner" -- is "liable to" other current owners and is "liable to"
the Commonwealth. Id. § 5(b). But, § 5(b) provides that such a
current owner in some circumstances may not be "liable to" any
other "person[s]" who are described in § 5(a). Specifically, §
5(b) provides that a current owner is not "liable to" any "person
who is liable pursuant to" §§ 5(a)(2)-(5), if the current owner
can show that (1) it "did not own or operate the site at the time
of the release or threat of release in question" and (2) it "did
not cause or contribute to such release or threat of release."
Id.
The upshot of this limitation in § 5(b) -- by virtue of
how §§ 5(a)(1) and 5(b) interact both with each other and with
§ 4 -- is the following. A "person" may be "liable" within the
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meaning of § 5 -- for example, by virtue of being "liable to the
[C]ommonwealth" under § 5(a)(1), in consequence of owning a site
from which there "has been a release" -- and yet not be "liable
to" a "person" who seeks reimbursement under § 4 for the costs
that it incurred in connection with a response action that it
undertook in consequence of that release. Id. And, as we will
see, this limitation on liability in § 4, arising from § 5(b),
bears directly on a number of the issues that we must address in
these appeals.
There is one final statutory provision that warrants
much briefer mention. Section 4A of Chapter 21E creates a cause
of action premised on the liability that § 4 imposes. It provides
that parties may seek reimbursement from other parties, based on
their liability under § 4, for the costs that they have incurred
in undertaking response actions. Specifically, § 4A provides that
"any person who has given notice pursuant to this section may
commence a civil action in the superior court department of the
trial court seeking from the notice recipient contribution,
reimbursement or an equitable share of the costs of such response
action or of such actual or potential liability." Id. § 4A.4
4
The District Court ruled that Thomas & Betts was excused
from complying with the notice requirement in § 4A because the
Chapter 21E claims under § 4 that Thomas & Betts brought were
either cross-claims or third-party claims. No party appeals that
ruling.
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There are also certain Massachusetts regulations that
are useful to understand. That is because the MassDEP implements
Chapter 21E through the Massachusetts Contingency Plan (the
"Plan"), 310 Mass. Code Regs. 40. See Mass. Gen. Laws ch. 21E,
§ 3(b).
The Plan defines a "response action" as the
"assessment[], containment[], and/or removal[]" of hazardous
materials. 310 Mass. Code Regs. 40.0006(2)(a). The Plan further
provides that, in carrying out the authority to arrange for
response actions, the MassDEP may issue a "Notice of
Responsibility" to a "potentially responsible party" or a
"responsible party." Id. at 40.0160(1); see also Mass. Gen. Laws
ch. 21E, § 9 (describing MassDEP's authority to order a responsible
party to undertake a response action). The Plan defines a
"potentially responsible party" as "a person who is potentially
liable pursuant to [Chapter 21E]." 310 Mass. Code Regs.
40.0006(12). The Plan defines a "responsible party," by contrast,
as "a person who is liable under [Chapter 21E]." Id.
We note that, while § 4 imposes liability on certain persons
to reimburse the response costs that a "potentially responsible
party" incurs, § 5(a)(iii) separately makes a "person" described
in §§ 5(a)(1)-(5) "liable to . . . any person for damage to . . .
real or personal property incurred or suffered as a result of such
release or threat of release." Mass. Gen. Laws ch. 21E, § 5(a);
see also Martignetti v. Haigh-Farr Inc., 680 N.E.2d 1131, 1135-36
(Mass. 1997). No party to this litigation advances such a § 5
claim, however. The claims at issue -- insofar as they are brought
pursuant to Chapter 21E -- are all brought under § 4.
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The MassDEP has the "sole discretion" to determine "whom
to notify of their potential liability under [Chapter 21E]." 310
Mass. Code Regs. 40.0160(1)(a). Once notified by the MassDEP,
"potentially responsible parties" may undertake a response action,
while "responsible parties" must do so. Id. at 40.0403(1).
B.
It is against this dense statutory and regulatory
background that the dispute between the parties to these appeals
comes to us. The dispute itself has its origins in events that
took place nearly two decades ago.
Thomas & Betts is one of the two principal parties to
these appeals. In 1999, it acquired a company that owned a
property upstream from Mother Brook. Thomas & Betts, along with
the other parties to these appeals, has stipulated that the company
that it had acquired had used and stored PCBs on its property while
it conducted industrial operations there.
New Albertson's is the other principal party to these
appeals. It has stipulated, along with the other parties, that it
"stands in the shoes" of a number of parties that had leased a
property downstream from Thomas & Betts's property, that this
downstream property had long been home to a supermarket, and that
New Albertson's had indemnified the owner of the supermarket
property against certain environmental costs and responsibilities.
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In 2000, sediment samples from the upstream property
that Thomas & Betts owned tested positive for PCBs. The next year,
Thomas & Betts developed and began carrying out a remediation plan
for that property as well as for Mother Brook in its entirety.
On October 17, 2007, the MassDEP sent an email to Thomas
& Betts, as the owner of the upstream property, and to the owner
at that time of the downstream supermarket property. The email
reported that the MassDEP had found PCB contamination along both
banks of Mother Brook in the area adjacent to the supermarket
property and potentially extending downstream to the canal's
terminus at the Neponset River. The email also indicated that,
pursuant to § 4 of Chapter 21E, the MassDEP would be issuing a
Notice of Responsibility both to Thomas & Betts and to the owner
of the supermarket property in connection with the contamination
of Mother Brook.
The next month, the MassDEP issued the Notice of
Responsibility. The Notice of Responsibility stated that the
MassDEP had reason to believe that Thomas & Betts and the owner of
the supermarket property were "Potentially Responsible Parties."
The Notice of Responsibility also stated that "responsible
parties" must take necessary response actions or risk "liab[ility]
for up to three (3) times all response costs incurred by [the]
MassDEP." See Mass. Gen. Laws ch. 21E, §§ 5(e), 9; 310 Mass. Code
Regs. 40.1220(5). Finally, the Notice of Responsibility stated
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that "[t]he subject site shall not be deemed to have all the
necessary and required response actions taken unless and until all
substantial hazards presented by the site have been eliminated and
a level of No Significant Risk exists."5
In response to the email from the MassDEP, but before
the MassDEP had sent the Notice of Responsibility, Thomas & Betts
and New Albertson's entered into a joint remediation agreement.
Specifically, the two parties agreed "to cooperate with each other
in good faith and with due haste to implement the [MassDEP's]
expectations set forth in . . . the October 17 Email." Pursuant
to that same agreement, Thomas & Betts and New Albertson's also
agreed to an "interim" allocation of the costs that they would
jointly incur in cleaning up Mother Brook. Thomas & Betts and New
Albertson's did so on the understanding that this interim
allocation was "not intended to reflect the parties' ultimate cost
responsibility."
At the time that Thomas & Betts entered into the joint
remediation agreement with New Albertson's, Thomas & Betts already
had the necessary permits and authorizations to remediate Mother
Brook. Thus, Thomas & Betts and New Albertson's agreed to
5 A Massachusetts regulation promulgated by the MassDEP
defines "No Significant Risk" as a "level of control of each
identified substance of concern at a site . . . such that no such
substance of concern shall present a significant risk of harm to
health, safety, public welfare or the environment during any
foreseeable period of time." 310 Mass. Code Regs. 40.0006(12).
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undertake their joint remediation effort pursuant to those permits
and authorizations.
To clean up Mother Brook, the canal had to be drained
and the contaminated sediment completely removed. The portion of
Mother Brook adjacent to the supermarket property was bounded by
two parallel bridges that spanned the canal. To drain and excavate
this portion of the canal, access to either the north bank, where
the supermarket property was located, or the south bank, was
needed.
The cleanup of Mother Brook was completed by December of
2009. In the end, Thomas & Betts incurred $12,703,322.52 in
response costs. Pursuant to the joint remediation agreement, New
Albertson's paid Thomas & Betts $2,924,306.88. New Albertson's
itself incurred an additional $791,398.31 in response costs in
connection with the cleanup.
C.
In November of 2010, Thomas & Betts filed a complaint,
invoking federal diversity jurisdiction, against New Albertson's
in the United States District Court for the District of
Massachusetts. See 28 U.S.C. § 1332(a). Thomas & Betts alleged
that New Albertson's had ceased paying it pursuant to the agreement
to allocate the costs of the cleanup set forth in the joint
remediation agreement. On that basis, Thomas & Betts asserted
claims against New Albertson's under Massachusetts law for breach
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of contract, breach of the covenant of good faith, and unfair and
deceptive business practices.
In January of 2011, New Albertson's filed counterclaims
against Thomas & Betts under Massachusetts law for breach of
contract, breach of the covenant of good faith, and unfair and
deceptive business practices. New Albertson's also asserted a
counterclaim against Thomas & Betts for reimbursement based on § 4
of Chapter 21E for all the response costs that it had incurred in
connection with the cleanup of Mother Brook and for costs,
including attorney's fees, under § 15 of Chapter 21E.
Later that year, Thomas & Betts responded by filing its
own counterclaims based on § 4 of Chapter 21E against New
Albertson's for reimbursement for the response costs that it had
incurred in connection with the cleanup and for costs, including
attorney's fees, under § 15 of Chapter 21E. Thomas & Betts also
added a new breach of contract counterclaim under Massachusetts
law against New Albertson's. This counterclaim alleged that New
Albertson's had breached the joint remediation agreement's duty
"to cooperate in good faith" by, among other things, "[r]efusing
to allow timely access to New Albertson's' property, which access
was necessary to complete the bank remediation work."
Eventually, Thomas & Betts and New Albertson's each also
filed complaints pursuant to § 4A of Chapter 21E against other
parties. Those third-party complaints sought reimbursement from
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the third parties for the response costs that Thomas & Betts and
New Albertson's, respectively, each had incurred in remediating
the contamination of Mother Brook.
One of these third-party defendants is Alfa Laval Inc.,
which is also a party on appeal. Alfa Laval manufactured
centrifuges on the south bank of Mother Brook, across from where
the supermarket property is located, from the 1960s until the late
1970s. Alfa Laval purchased the site and assets of the centrifuge
business from another manufacturer that, the parties to these
appeals have stipulated, used and stored PCBs at this south bank
property.
Another set of third-party defendants who are parties on
appeal includes the Boston Renaissance Foundation, Inc.
("Foundation"), which purchased the south bank property in 2008,
and the Boston Renaissance Charter Public School, which leased
that same property from the Foundation. We will refer to these
parties collectively as "the Charter School Parties." The Charter
School Parties were joined as defendants in this litigation by
Thomas & Betts in late 2011. Thomas & Betts claimed that the
Charter School Parties were "liable to" it, under § 4 of Chapter
21E, for the reimbursement of a portion of the response costs that
it had incurred.
Finally, we need to mention one other pair of parties to
these appeals. These parties are Dampney Company, Inc. ("Dampney")
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and Jeanette Yukon, as general partner of Yukon/Hyde Park Avenue
Limited Partnership ("Yukon"). Dampney was a paint manufacturer
that owned a site just north of Thomas & Betts's property between
1930 and 1970.
Thomas & Betts filed a third-party complaint against
Dampney under § 4A of Chapter 21E in December of 2011. The
Yukon/Hyde Park Avenue Limited Partnership at one point owned the
south bank property where the Boston Renaissance Charter Public
School is now located. Yukon became a party to the suit due to
the third-party complaint that Alfa Laval filed pursuant to § 4A
of Chapter 21E in 2012. Neither Dampney nor Yukon claim that the
District Court erred, and we need only mention them briefly at
points in considering the challenges that Thomas & Betts brings on
appeal.
The trial on these various claims took place in late
2015 and lasted twenty-one days. Only the claims based on § 4 of
Chapter 21E for reimbursement by Thomas & Betts and New
Albertson's -- against each other and the other parties that we
have mentioned -- went to the jury.
On December 22, 2015, the jury returned a special
verdict. The first part of the special verdict addressed "Question
One" on the special verdict form, which concerned the claims that
Thomas & Betts had brought based on § 4 of Chapter 21E.
Specifically, the jury found that Thomas & Betts had incurred
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$12,703,322.52 in reasonable and necessary response costs. The
jury also found that Alfa Laval and the Charter School Parties
were "liable to" Thomas & Betts for a portion of the response costs
that had been incurred by Thomas & Betts. The jury then allocated
responsibility for 14 percent of those response costs to Alfa Laval
and 1 percent of them to the Charter School Parties. The jury
found that no other party to the litigation, including New
Albertson's, was "liable to" Thomas & Betts for any portion of
Thomas & Betts's response costs. The jury assigned Thomas & Betts
the other 85 percent of the response costs.
The second part of the special verdict addressed
"Question Two," which concerned the claims that New Albertson's
had brought based on § 4 of Chapter 21E. The jury found that New
Albertson's had incurred $791,398.31 in reasonable and necessary
response costs. The jury also found that Thomas & Betts was
"liable to" New Albertson's for 75 percent of those response costs
and that no other party to the litigation was "liable to" New
Albertson's for them. The jury assigned New Albertson's the other
25 percent of the response costs. In addition, the jury found
that New Albertson's did not "cause[] or contribute[] to the
release of PCBs to the banks or streambed of Middle or Lower Mother
Brook[.]"
The District Court entered judgment based on the jury's
special verdict on December 31, 2015. The various parties then
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filed a number of post-trial motions, including motions to alter
the judgment. The District Court denied most of these motions on
March 29, 2016, although the District Court did grant motions by
Thomas & Betts and New Albertson's to alter the judgment and to
include prejudgment interest on the funds that each had been
awarded pursuant to their respective claims under § 4 of Chapter
21E. The District Court did so pursuant to either § 6B or § 6H of
Chapter 231, without specifying which provision applied. On May
2, 2016, the District Court issued a written decision explaining
both its prejudgment interest rulings and its ruling rejecting
Thomas & Betts's post-trial motion for a new trial. A number of
parties appealed from the District Court's amended judgment.6
The District Court then issued two written
decisions -- the first on September 29, 2016 and the second on
March 10, 2017 -- on still-pending motions concerning costs,
including attorney's and expert's fees. The District Court finally
entered judgment on the motions for attorney's fees on April 4,
6
The judgment initially entered pursuant to the verdict did
not address the roughly $2.9 million that New Albertson's paid
Thomas & Betts pursuant to the joint remediation agreement. Both
New Albertson's and Thomas & Betts moved to amend the judgment.
The District Court granted the motions.
The District Court's judgment on the verdict, as amended, was
a final and appealable decision prior to its later order on
attorney's fees, which is separately appealable. See Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 200-03 (1988). Thomas &
Betts appealed in No. 16-1189. Alfa Laval appealed in No. 16-
1133. The Charter School Parties appealed in No. 16-1134.
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2017. In the portion of the judgment on those costs that is at
issue on appeal, the District Court ordered Thomas & Betts to pay
$1,747,188.59 in costs, including attorney's and expert's fees, to
New Albertson's under § 15 of Chapter 21E.
Thomas & Betts then appealed this judgment in No. 17-
1360, as did New Albertson's in No. 17-1361. These appeals, along
with the others mentioned above, were all then consolidated.
II.
We begin with the appeal that Thomas & Betts brings from
the District Court's denial of its motion for a new trial pursuant
to Federal Rule of Civil Procedure 59. Thomas & Betts contends
that the District Court erred in denying its Rule 59 motion based
on what it contends were a number of alleged legal errors at trial.
These alleged legal errors are: that the District Court reversibly
erred by refusing to instruct the jury on one of its breach of
contract claims; that the District Court reversibly erred by giving
four erroneous instructions concerning the potential liability,
under § 4 of Chapter 21E, of other parties to Thomas & Betts for
at least some of its response costs; and that the jury rendered
inconsistent verdicts on certain of Thomas & Betts's claims under
§ 4 of Chapter 21E. We address each asserted error in turn.
A.
We start with the contention by Thomas & Betts that the
District Court committed reversible error by failing to instruct
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the jury on its breach of contract claim against New Albertson's
for failing to provide access to its property despite its duty
under the joint remediation agreement to "cooperate in good faith."
We review the District Court's denial of a motion for a new trial
for abuse of discretion. Kennedy v. Town of Billerica, 617 F.3d
520, 527 (1st Cir. 2010). Where, however, a motion for a new trial
relies on "preserved claims of instructional error, we afford de
novo review to 'questions as to whether the jury instructions
capture the essence of the applicable law.'" Ira Green, Inc. v.
Military Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014)
(quoting DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir. 2009)).
Here, of course, the claimed instructional error
consists of a failure by the District Court to give an instruction
on a claim at all rather than of an instruction that was given but
that was allegedly wrong. "The district court must give a jury
instruction on a material issue if the evidence presented at trial
could plausibly support a finding for either side." Id. "The
standard for determining whether a factual issue is sufficiently
contested to require an instruction is identical to the standard
for determining whether a factual controversy prevents the entry
of judgment as a matter of law." Wilson v. Mar. Overseas Corp.,
150 F.3d 1, 10 (1st Cir. 1998). Thus, to show error here, Thomas
& Betts must demonstrate that there is more than "a mere scintilla
of evidence" in the record to support the claim on which the jury
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was not instructed. Fashion House, Inc. v. K Mart Corp., 892 F.2d
1076, 1088 (1st Cir. 1989). Our review of this matter of law is
de novo. See Wilson, 150 F.3d at 10.
Thomas & Betts contends -- as it did below in moving for
a new trial -- that the record shows that a jury supportably could
have found that, in 2007, and then, again, from 2008 into 2009,
New Albertson's breached the duty at issue. Thomas & Betts further
contends that there was enough evidence in the record to permit
the jury to have found that the alleged breach -- no matter when
it occurred -- resulted in damages. Accordingly, Thomas & Betts
contends that the District Court was obliged to instruct the jury
on this claim of contractual breach.
In ruling otherwise in denying Thomas & Betts's motion
for new trial, the District Court concluded, among other things,
that the record did not contain sufficient evidence for a jury
reasonably to find damages resulting from the alleged breach.7
7 We note that the District Court, in rejecting the motion by
Thomas & Betts for a new trial concerning this instruction,
explained that "the [joint remediation] [a]greement does nothing
more than codify the signatories' duties under Chapter 21E and
provide for certain interim payments from New Albertson's to Thomas
& Betts." Thomas & Betts does not argue that, insofar as this
conclusion regarding codification formed the basis for the
District Court’s rejection of its motion for new trial as to this
instruction, this conclusion was error. And, even assuming error
on this score, it was harmless, as, for the reasons that we
explain, Thomas & Betts cannot show that it put forth enough
evidence to permit a jury to find that New Albertson’s breached
the duty "to cooperate in good faith" that the joint remediation
agreement establishes.
- 21 -
But, as "[w]e are at liberty to affirm a district court's judgment
on any ground made manifest by the record," United States v.
George, 886 F.3d 31, 39 (1st Cir. 2018), we may affirm the District
Court based on our resolution of the antecedent question of whether
the evidence sufficed to support a finding that New Albertson's
had committed the alleged breach at all. And, because we conclude
that the evidence did not suffice in that regard, we reject the
challenge that Thomas & Betts brings concerning the District
Court's failure to give this instruction.
1.
To make the case that the District Court erred by not
instructing the jury on the breach of contract claim, Thomas &
Betts first argues that a jury supportably could have found that
New Albertson's breached the contractual duty at issue by rejecting
a proposal to conduct simultaneous remediation in 2007. Thomas &
Betts points to the testimony of John Mitchell, the project manager
for Shaw Environmental & Infrastructure, Inc., which was the
outside consultant retained by Thomas & Betts for the remediation
project.
Mitchell's testimony concerned a 2007 proposal -- never
implemented -- that New Albertson's remediate both banks of Mother
Brook and its streambed simultaneously. Citing only to this
testimony, Thomas & Betts contends on appeal that "the jury heard
that [New Albertson's] insisted that the North Bank (its side) be
- 22 -
done first." Thomas & Betts then contends, on that basis, that a
jury supportably could find that New Albertson's unreasonably
stood in the way of this proposal being put into operation.
Accordingly, Thomas & Betts contends, for this reason alone the
record adequately supports a finding that New Albertson's breached
its duty under the remediation agreement to cooperate in good
faith.
The problem with this contention, however, is that
Mitchell testified that he did not know who had decided to reject
the simultaneous remediation proposal or how the decision not to
pursue it had been made. Moreover, Thomas & Betts points to no
other evidence to support its contention that New Albertson's
unreasonably stood in the way of the 2007 proposal. We thus see
no basis for concluding that a jury could find that New Albertson's
unreasonably rejected the 2007 proposal. Accordingly, we do not
see any basis for concluding that a jury supportably could have
found a breach of the duty at issue -- the duty under the joint
remediation agreement "to cooperate in good faith" -- based on the
evidence concerning that proposal. After all, a jury cannot be
asked to rely on "mere speculation and conjecture[,]" see Mullins
v. Pine Manor Coll., 449 N.E.2d 331, 338 (Mass. 1983) (quoting
Int’l Fidelity Ins. Co. v. Wilson, 443 N.E.2d 1308, 1313 (Mass.
1983)), and, under Massachusetts law, "[t]here is a presumption
that all parties act in good faith, and the plaintiff bears the
- 23 -
burden of presenting evidence of bad faith or an absence of good
faith." T.W. Nickerson, Inc. v. Fleet Nat. Bank, 924 N.E.2d 696,
706 (Mass. 2010).
2.
Thomas & Betts alternatively contends that the District
Court erred in not instructing the jury on this breach of contract
claim because of evidence about actions that New Albertson's took
from 2008 to 2009. Thomas & Betts contends that the evidence of
these actions suffices to support a jury finding that the duty at
issue was breached. Again, though, we do not agree.
Thomas & Betts points to the fact that the record
supportably shows that, during this time, New Albertson's failed
to offer Thomas & Betts access to Mother Brook through its property
via the north bank of the canal despite knowing that Thomas & Betts
had no other available means of accessing the canal. But, as we
have noted, under Massachusetts law, we "presum[e] that all parties
act in good faith" and that "the plaintiff bears the burden of
presenting evidence of bad faith or an absence of good faith[.]"
Id. Thus, we do not see how evidence of New Albertson's failure
to offer access in and of itself could suffice to support a finding
that that New Albertson's breached its contractual duty under the
joint remediation agreement "to cooperate in good faith." Nor
does Thomas & Betts identify any authority to support a conclusion
that such evidence could suffice.
- 24 -
Thomas & Betts does point to an email exchange from June
of 2009 in which Thomas & Betts asked a representative of New
Albertson's for north bank access and the representative from New
Albertson's turned down the request. This exchange does show that,
after conferring on the matter with other parties tied to the
downstream supermarket property, the New Albertson's
representative responded. The record shows that he stated that
"we continue to see a number of serious obstacles associated with
the idea of using the north bank for access" and that "our shared
position at this point is to press the [south bank property owner]
to comply with its existing access obligations."
But, evidence that New Albertson's rejected a request
for access and gave its reasons for doing so is not in and of
itself evidence that New Albertson's breached its duty "to
cooperate in good faith." And the effort by Thomas & Betts to
supply what is missing by pointing to other evidence fails.
Thomas & Betts points in particular to Mitchell's
testimony that, once New Albertson's granted access to the north
bank three months later in 2009, workers did not encounter any
"obstacles." But, the fact that Mitchell did not report any
obstacles once New Albertson's did provide access in September of
2009 reveals nothing about whether New Albertson's had a reasonable
basis for concluding that there were serious obstacles to providing
such access three months earlier, in June. Moreover, Thomas &
- 25 -
Betts points to nothing in the record that indicates that it
challenged the representation that New Albertson's made regarding
the serious nature of those obstacles at the time that New
Albertson's made it. In fact, Thomas & Betts does not even
identify what it believes the record shows that those "obstacles"
were or on what basis a jury could find -- despite the absence of
any record evidence indicating what those obstacles were -- that
the representation made by New Albertson's about the seriousness
of them was not made in good faith or was otherwise unreasonable.
Thus, the evidence of the exchange reflected in the email
does not suffice to support the finding of breach that Thomas &
Betts alleges. Accordingly, we reject this aspect, too, of the
challenge that Thomas & Betts brings to the District Court's
failure to give the instruction on this breach of contract claim.
B.
Thomas & Betts next turns its attention away from the
omitted instruction concerning the breach of contract claim to
focus on four instructions that the District Court did give but
that Thomas & Betts contends were erroneous. These instructions
concerned the claims that had been brought by Thomas & Betts
pursuant to § 4A of Chapter 21E against New Albertson's and various
of the other parties to these appeals for reimbursement, based on
§ 4 of Chapter 21E, of the response costs that Thomas & Betts had
incurred. We conclude, however, that the challenges to these
- 26 -
instructions provide no basis for finding that the District Court
erred in denying the motion for new trial.
1.
"An erroneous jury instruction warrants a new trial if
'the preserved error, based on a review of the entire record, can
fairly be said to have prejudiced the objecting party.'" Goodman
v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004) (quoting
Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st
Cir. 1997)). We review de novo "whether [each] charge in its
entirety -- and in the context of the evidence -- presented the
relevant issues to the jury fairly and adequately." Id. Any
preserved challenge to an instruction's "matter of form or
wording," however, is reviewed only for an abuse of discretion.
Id.
Even if a jury instruction is erroneous, it must still
cause prejudice to constitute reversible error.8 And, to be
prejudicial, the error must "adversely affect[] the jury verdict
and the 'substantial rights' of the objecting party." Davignon v.
Clemmey, 322 F.3d 1, 9 (1st Cir. 2003); see also Costa-Urena v.
8
"Because the standard of review is a procedural matter, not
a substantive one, we are bound by federal law" in determining
whether an erroneous jury instruction constitutes reversible
error. Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998); but see
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 416 (1996)
(applying state law where the state's "objective" in using a
different standard of review was "manifestly substantive").
- 27 -
Segarra, 590 F.3d 18, 24 n.2 (1st Cir. 2009) ("This 'harmless
error' standard applies where . . . a party has properly objected
to the court's instruction at trial.").
Finally, we note that to obtain the benefit of the
standards of review described above, a party must preserve the
challenge to instructional error. If the challenge is unpreserved,
however, it may be either forfeited or waived. A right is waived
by its intentional relinquishment. Dávila v. Corporación De P.R.
Para La Difusión Pública, 498 F.3d 9, 15 n.2 (1st Cir. 2007).
Waived claims are generally not reviewable on appeal. See Ji v.
Bose Corp., 626 F.3d 116, 129 (1st Cir. 2010) (deeming an issue
waived and denying review). A forfeited claim, by contrast, may
be reviewed, but ordinarily only for plain error. See Sony BMG
Music Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011).
To prevail on plain error review, the party claiming
error must show "(1) that there was error, (2) that it was plain,
(3) that it likely altered the outcome, and (4) that it was
sufficiently fundamental to threaten the fairness, integrity or
public reputation of the judicial proceedings." Id. This standard
is high, and "it is rare indeed for a panel to find plain error in
a civil case." Id. (quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d
13, 36 (1st Cir. 2006)).
- 28 -
2.
Thomas & Betts first contends that the District Court
erred in instructing the jury about an affirmative defense -- for
lack of knowledge -- that New Albertson's, Yukon, and the Charter
School Parties would each have to the claims by Thomas & Betts for
reimbursement under § 4 of Chapter 21E of the response costs that
Thomas & Betts had incurred. The instruction stated that the
defense would be available to any of those parties if, as an owner
of a site at which there is or has been a release or threat of
release of hazardous material, see Mass. Gen. Laws ch. 21E,
§ 5(a)(1), that owner could prove that it "didn't know anything"
about the release or threatened release of that material.
In giving the instruction, the District Court
emphasized: "But [the owners of the site have] got to prove it.
They've got to prove it. Thomas & Betts doesn't have to prove
it."
Thomas & Betts contends that the instruction
"erroneously and confusingly conflated the question of whether a
current owner 'caused or contributed' to a release with the
question of whether the current owner had knowledge of PCB
contamination." And, on that basis, Thomas & Betts now argues
that the instruction, insofar as it was erroneous in stating that
lack of knowledge could be a defense, was also prejudicial. And,
further, Thomas & Betts contends, that is so notwithstanding the
- 29 -
jury's finding that New Albertson's did not "cause[] or
contribute[] to the release of PCBs to the banks or streambed of
Middle or Lower Mother Brook[.]"
The prejudice argument that Thomas & Betts advances
proceeds as follows. Thomas & Betts first asserts that the
liability of New Albertson's to Thomas & Betts under § 4 could be
based on New Albertson's being found liable under § 5(a)(1), as
the "owner or operator of . . . a site from or at which there is
or has been a release or threat of release" of PCBs. Thomas &
Betts then contends that New Albertson's, if it were found liable
under § 5(a)(1), could avoid being found "liable to" Thomas & Betts
under § 4 for a proportionate share of the response costs that
Thomas & Betts incurred in cleaning up Mother Brook only if the
jury also found that, per § 5(b), New Albertson's did not "cause
or contribute" to the release or threat of release of PCBs into
that canal.
Thus, Thomas & Betts suggests, if the instruction
mistakenly conflated causation and knowledge, it could potentially
have led the jury to conclude that lack of knowledge on the part
of New Albertson's -- in and of itself -- required a finding that
New Albertson's did not "cause or contribute" to the release. And,
hence, New Albertson's thereby could wrongly escape liability to
Thomas & Betts, even if the record could have -- save for the
mistaken instruction conflating knowledge and
- 30 -
causation -- permitted the jury to have found that New Albertson's
did, in fact, "cause or contribute" to the release.
But, Thomas & Betts did not argue below that the
instruction was problematic because it conflated the concepts of
causation and knowledge in the way that Thomas & Betts now contends
that the instruction conflated them. At most, Thomas & Betts
argued below that the instruction was problematic simply because
it permitted a lack of knowledge defense at all under § 4, such
that, even if a jury found that a party was "liable" under
§ 5(a)(1) and had "caused or contributed to a release" under
§ 5(b), that party could escape liability under § 4 for an
equitable share of another party's response costs because that
party did not know that it had "caused or contributed to the
release."
Accordingly, Thomas & Betts's new argument is forfeited,
if not waived. And, as Thomas & Betts makes no argument on appeal
that it can satisfy the demanding plain error standard that
therefore applies to its new argument, this aspect of Thomas &
Betts's challenge to the instruction necessarily fails. See Sony
BMG Music Entm't, 660 F.3d at 503.
To be sure, Thomas & Betts appears on appeal also to
reprise its argument below that the instruction was wrong because
it indicated that lack of knowledge is, generally, a defense to
liability under § 4, even if the instruction did not thereby
- 31 -
conflate knowledge and causation. But, this aspect of its
challenge to the instruction fails on prejudice grounds. And it
does so even if we assume that the instruction erroneously stated
that a current owner's lack of knowledge of a release or threat of
release necessarily precludes that current owner from being found
liable for "caus[ing] or contribut[ing]" to a release or threat of
release.
Thomas & Betts contends otherwise with respect to
prejudice as follows. But for the instruction about the lack of
knowledge defense, the jury could have found both New Albertson's
and the Charter School Parties "liable to" it under § 4 of Chapter
21E for at least some of its response costs based on the evidence
that New Albertson's and the Charter School Parties each "hired
contractors who failed to properly or adequately test for PCBs in
spite of the known industrial history of the properties that
pointed towards PCB contamination."
As this description of Thomas & Betts's argument for
showing prejudice reveals, however, Thomas & Betts does not develop
any argument as to prejudice with respect to its claim under § 4
against Yukon. Thus, the asserted instructional error has no
bearing on Thomas & Betts's appeal of the ruling below as to that
claim.
With respect to the Charter School Parties, moreover,
Thomas & Betts obviously cannot make a showing of prejudice
- 32 -
concerning this instruction, even assuming that it was erroneous.
The jury found that the Charter School Parties were "liable to"
Thomas & Betts for the response costs that it had incurred.
That leaves, then, only the issue of prejudice as to the
§ 4 claim that Thomas & Betts brings against New Albertson's. But,
the jury found, as reflected in the special verdict form, that New
Albertson's did not "cause[] or contribute[] to the release of
PCBs to the banks or streambed of Middle or Lower Mother Brook[.]"
And Thomas & Betts makes no argument to us -- aside from an
unpreserved contention that the instruction conflated knowledge
and causation -- as to how the instruction concerning the lack of
knowledge could have impacted that finding. Thus, we see no basis
for concluding that the instruction wrongly led the jury to
find -- per § 5(b)'s limitation on § 5(a)(1) -- that New
Albertson's was not liable to Thomas & Betts under § 4 for
reimbursement of an equitable portion of its response costs. Thus,
the challenge to the instruction fails on prejudice grounds.9
9
We note that Thomas & Betts also develops no argument that
the failure on the part of the contractors for New Albertson's to
test, in and of itself, could suffice to show liability under
§ 5(a)(5), which provides that "any person who otherwise caused or
is legally responsible for a release or threat of release" is
liable to both the Commonwealth and to parties seeking
reimbursement under § 4 of Chapter 21E.
- 33 -
3.
Thomas & Betts next focuses on an instruction that the
District Court gave to the jury in response to a question that it
had asked after deliberations had begun. The District Court
initially instructed the jury that: "[T]he law imposes on New
Albertson’s and the Charter School [Parties] the duty of giving
Thomas & Betts reasonable access to the area so they can clean it
up. And if they do not give reasonable access to the area, well,
then they're liable for contribution anyway." During
deliberations, the jury asked for clarification: "If no PCBs were
released from a property[,] are the property owners, operators,
[and] tenants, still required to provide reasonable access for
cleaning up another contaminated property?"
The District Court gave the following response:
The short answer is "No." . . . As to current
owners the statute imposes liability for a
release or a continued release while they own
it, and the business about reasonable access
is if you are otherwise liable because of a
release and then you don't provide reasonable
access, then you may take that into account
with respect to the contribution.
Thomas & Betts contends that the District Court's answer
to the jury's question conflicted with § 5(a)(5) of Chapter 21E.
That provision makes any "person" liable both to the Commonwealth
and to a "person" seeking reimbursement under § 4 if that "person"
"otherwise caused or is legally responsible for a release or threat
- 34 -
of release of oil or hazardous material from a vessel or site."
Mass. Gen. Laws ch. 21E, § 5(a)(5).10
By answering "no" to the jury's question, Thomas & Betts
contends, the District Court's instruction mistakenly precluded
the jury from finding that New Albertson's "caused or [was] legally
responsible for a release or threat of release" under § 5(a)(5),
even if the jury found that New Albertson's denied Thomas & Betts
reasonable access to Mother Brook. Thomas & Betts contends that
the District Court's "No" answer amounted to an erroneous
instruction to the jury that it could not find New Albertson's
liable to Thomas & Betts under § 4, per § 5(a)(5), in consequence
of having denied reasonable access, if the jury also found that
New Albertson's was not "otherwise liable" for a release.
Thomas & Betts contends, moreover, that this instruction
was not only wrong, but prejudicial. With respect to prejudice,
Thomas & Betts argues, this instructional error foreclosed a
10We note that it appears that Thomas & Betts means also to
contend that this instruction conflicts with § 5(a)(1) of Chapter
21E. That provision concerns a party's liability for a "release"
or "threat of release" when it occurs "from or at" the property
belonging to that party. Thomas & Betts appears to contend on
appeal that the instruction was problematic because it referred
only to a "release" and did not refer also to a "threat of release."
But, Thomas & Betts's own account to us of what transpired below
does not indicate that it objected below to the District Court's
instruction on that basis. Nor does Thomas & Betts make any
argument that it can satisfy the plain error standard. See, e.g.,
United States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006);
United States v. González-Mercado, 402 F.3d 294, 301-02 (1st Cir.
2005).
- 35 -
supportable basis on which the jury could have found New
Albertson's "liable" under § 5(a)(5). That supportable basis was
that New Albertson's "caused or was legally responsible for a
release" because it denied Thomas & Betts reasonable access to
Mother Brook. Thus, Thomas & Betts contends, the erroneous
instruction in this way wrongly prevented the jury from finding
that Thomas & Betts was entitled to be reimbursed for response
costs by New Albertson's under § 4.
But, even if we assume that Thomas & Betts is right that
the instruction was mistaken for the reasons that Thomas & Betts
gives, the record does not support a finding of prejudice. See
Figueroa v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir. 1989). And
so, for this reason, the challenge fails.
In this regard, we note that, as we have already
explained in connection with the challenge that Thomas & Betts
brings to the District Court's failure to have given the breach of
contract instruction, none of the evidence that Thomas & Betts
identifies concerning New Albertson's failure to make access to
its property available in 2007, 2008, or 2009 suffices to permit
a jury to find that New Albertson's unreasonably denied Thomas &
Betts such access. For that reason, we concluded that none of
that evidence sufficed to support a finding that New Albertson's
- 36 -
thereby breached the duty to cooperate in good faith that the joint
remediation agreement imposed.
At most, then, the evidence that Thomas & Betts relies
on to show prejudice supportably shows only that New Albertson's
failed to provide access, not that it failed to provide reasonable
access. Accordingly, we do not see how, even if the instruction
erred in describing § 5(a)(5) to preclude a finding of liability
based on a denial of reasonable access simply because the party
denying such access "was not otherwise liable" for a release of
PCBs, Thomas & Betts was harmed by that error.
4.
The next instruction that Thomas & Betts challenges
concerns the approximately $2.9 million that New Albertson's paid
Thomas & Betts pursuant to the joint remediation agreement. The
parties stipulated that this nearly $2.9 million amount
constituted an interim payment to Thomas & Betts pursuant to the
joint remediation agreement for the response costs that Thomas &
Betts had incurred.
Consistent with that stipulation, the District Court,
while instructing the jury regarding the approximately $12.7
million in response costs incurred by Thomas & Betts, told the
jury:
Let me pause for a moment and say, because I
think it will occur to you, but what about the
2.9 million that it's undisputed New
- 37 -
Albertsons has already paid to Thomas & Betts?
The way we've worked that out is I'm taking
care of that. It's undisputed as to that. If
when all the things you find it turns out that
New Albertsons owes more money than that to
Thomas & Betts, whatever that amount is, I'm
going to subtract the 2.9 million from that.
If when the dust settles it's less than that,
I'm going to have Thomas & Betts reimburse New
Albertsons for that amount of money.
Thomas & Betts did not object to this instruction at the
time that it was given. Our review, therefore, is only for plain
error. Sony BMG Music Entm't, 660 F.3d at 503. Thomas & Betts
makes no argument, however, as to how it can satisfy that high
bar. This failure alone dictates that Thomas & Betts must lose on
this issue. See, e.g., Edelkind, 467 F.3d at 797; González-
Mercado, 402 F.3d at 301-02.
Moreover, Thomas & Betts could not prevail even if it
had properly preserved this challenge. Thomas & Betts contends
that the wording of the instruction created "confusion." Thomas
& Betts points out that the verdict form asked the jury to
apportion response costs between Thomas & Betts and New Albertson's
with respect to two seemingly distinct pools of money. Thomas &
Betts notes in this regard that Question One on the special verdict
form asked the jury about the $12.7 million in response costs that
Thomas & Betts had incurred, while Question Two on the special
verdict form asked the jury about the $790,000 in response costs
that New Albertson's had incurred. According to Thomas & Betts,
- 38 -
however, the District Court's instruction did not make clear
whether the roughly $2.9 million that New Albertson's had paid to
Thomas & Betts under the joint remediation agreement was to be
considered as part of the pool of money referenced in Question One
or as part of the pool of money referenced in Question Two.
But, as this challenge to the instruction concerns only
its wording, our review would be for an abuse of discretion even
if it were not forfeited. Mejías-Aguayo v. Doreste-Rodríguez, 863
F.3d 50, 57 n.5 (1st Cir. 2017). The question thus would be
"whether the jury instructions as a whole 'adequately explained
the law or whether they tended to confuse or mislead the jury on
controlling issues.'" McDonald v. Town of Brookline, 863 F.3d 57,
65 (1st Cir. 2017) (quoting Federico v. Order of Saint Benedict in
R.I., 64 F.3d 1, 4 (1st Cir. 1995)).
When considered in the context of the instructions as a
whole, and given the discretion that we afford district courts to
choose the wording of their instructions, the instruction sufficed
to make clear that the roughly $2.9 million should be considered
part of the $12.7 million in response costs that Thomas & Betts
had incurred. After all, the District Court explained to the jury
immediately before giving the instruction that it was undisputed
that Thomas & Betts had incurred $12.7 million in response costs;
that "of that amount" New Albertson's had paid roughly $2.9 million
to Thomas & Betts; and that the jury had to determine which
- 39 -
entities were liable to Thomas & Betts for those costs incurred by
Thomas & Betts. Accordingly, the challenge that Thomas & Betts
brings to this instruction is without merit.
5.
The last instruction that Thomas & Betts focuses on in
challenging the District Court's denial of its motion for new trial
states in part that "Thomas & Betts has to prove [the amount of
response costs Thomas & Betts incurred] and they have to prove
that they incurred costs in performing the response actions. The
response actions here are cleaning up Middle and Lower Mother
Brook." The instruction then goes on to state that Thomas & Betts
had to prove "that it was the release of PCBs [by the parties from
which Thomas & Betts seeks to recover] is what caused Thomas &
Betts to incur the response costs, that is the release of PCBs now
on the banks or into the brook itself was a substantial
contributing factor in bringing about the response costs."
Thomas & Betts contends that this instruction -- by using
the phrase "substantial contributing factor" -- wrongly instructed
the jury that the defendants, including Dampney, were entitled to
a de minimis defense to being found liable under § 5 of Chapter
21E. Thus, Thomas & Betts goes on to contend, the jury could have
found on that mistaken basis that these defendants were not
required to reimburse Thomas & Betts for response costs under § 4.
In pressing this point, Thomas & Betts contends that because
- 40 -
Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 72, 76-78 (1st Cir.
1999), precludes such a de minimis defense under CERCLA, Chapter
21E must be construed to preclude such a defense as well. See
John S. Boyd Co., 992 F.2d at 404 n.3.
Thomas & Betts, however, misapprehends the instruction.
The instruction merely permits a court to take account of the de
minimis nature of a release or threatened release in determining
the equitable allocation of response costs under § 4 of Chapter
21E. Yet, Massachusetts law allows a court to do just that. See
John Beaudette, Inc. v. J.P. Noonan Transp., Inc., 644 N.E.2d 218,
220-21 (Mass. 1995) (construing Chapter 21E). In fact, Acushnet
itself allows a court to do the same in apportioning equitable
shares of similar cleanup costs under CERCLA. 191 F.3d at 76-78
(construing CERCLA).
Thomas & Betts's briefing on appeal could be read to
argue that the instruction was problematic for an additional but
related reason. Thomas & Betts appears to contend that the
instruction was worded in such a way as to suggest incorrectly the
following: The de minimis exception applies not only to the
equitable allocation of response costs among "liable" parties
under § 4 but also to the threshold question of whether a "person"
is "liable" pursuant to § 5 of Chapter 21E for a release or
- 41 -
threatened release of PCBs, such that the "person" may be "liable"
under § 4 for any share at all of another's response costs.
But, Thomas & Betts did not raise such an objection to
the instruction's allegedly confusing wording at the time that the
instruction was given. Nor does Thomas & Betts argue on appeal
that the instruction was so confusingly worded in this respect
that it constituted plain error. See, e.g., Edelkind, 467 F.3d at
797; González-Mercado, 402 F.3d at 301-02. And, in any event,
insofar as that is the objection that Thomas & Betts now means to
make, the text of the instruction simply does not permit a reading
that would give rise to this sort of confusion.
C.
The final challenge to the District Court's denial of
the motion for new trial that Thomas & Betts brings is that the
jury's special verdict was inconsistent in a key respect. Our
review is de novo, Trull v. Volkswagen of Am., Inc., 320 F.3d 1,
5-6 (1st Cir. 2002), but "[a] special verdict will be upheld if
there is a view of the case which makes the jury's answers
consistent." McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,
133 (1st Cir. 1987).11
11 The standard of review for verdict inconsistency in
diversity cases is a matter of procedure and thus governed by
federal law. See McIsaac, 809 F.2d at 133 (applying federal
standard of review to claim of verdict inconsistency in a diversity
case).
- 42 -
The jury found, as to Question One on the special verdict
form, that New Albertson's was not "liable to" Thomas & Betts for
any of its response costs. The jury found, by contrast, in
response to Question Two on the special verdict form, that other
parties were "liable to" New Albertson's for only 75 percent of
its response costs.
Thomas & Betts contends that these findings cannot be
reconciled. The parties clash over whether Thomas & Betts
sufficiently preserved this challenge. They thus dispute whether
it has been waived and whether, if it has not, it at least has
been forfeited.
Thomas & Betts did arguably waive this objection by
repeatedly asserting to the District Court, in defending the use
of the verdict form, that it would be permissible for the jury to
make different findings in response to Questions One and Two. See
Correia v. Fitzgerald, 354 F.3d 47, 57 (1st Cir. 2003) (explaining
that "failure to object to an alleged inconsistency while the jury
is still in the box forfeits a party's objection, subject only to
the possibility of relief for plain error."). But, even if we
were to conclude that Thomas & Betts's failure to object to the
verdict form merely forfeited the issue, Thomas & Betts's
inconsistent-verdicts challenge would still fail.
Thomas & Betts makes no argument, after all, that any
error here constituted plain error. See United States v. Zannino,
- 43 -
895 F.2d 1, 17 (1st Cir. 1990). We also conclude, however, that
Thomas & Betts's argument would fail even if we were to treat the
challenge as preserved.
The defendants' joint response contends that the jury
reasonably could be understood to have found -- perfectly
consistently -- two things simultaneously. The jury could have
found that New Albertson's was not "liable to" Thomas & Betts,
based on § 4 of Chapter 21E, for the response costs that Thomas &
Betts had incurred. The jury also could have found, at the same
time, that New Albertson's failed to meet its own separate burden
to prove that Thomas & Betts was "liable to" it under that same
section of Chapter 21E for 100 percent (rather than merely 75
percent, as the jury found) of its own response costs.
Thomas & Betts attempts to show that the jury's verdicts
cannot be reconciled in this manner, but its effort to do so fails.
Thomas & Betts premises this effort to demonstrate that the
reconciliation of the verdicts proposed by the defendants' joint
response is untenable on its reading of the SJC's decision in
Martignetti v. Haigh-Farr Inc., 680 N.E.2d 1131 (Mass. 1997).
Thomas & Betts points out that Martignetti states that, under § 4
of Chapter 21E, "100% of the reasonable response costs must be
apportioned among the liable parties." Id. at 1141-42.
Accordingly, Thomas & Betts contends, Martignetti forecloses the
- 44 -
reconciliation of the verdicts offered by the defendants' joint
response in the following way.
Thomas & Betts argues that, because the jury allocated
only 75 percent of the response costs that New Albertson's incurred
to a party other than New Albertson's, the jury necessarily
concluded that New Albertson's was "liable" under Chapter 21E.
Otherwise, Thomas & Betts maintains, the jury could not have found
Thomas & Betts "liable to" New Albertson's for less than all of
its response costs. In consequence, Thomas & Betts proceeds to
argue, the proposed reconciliation of the verdicts necessarily and
impermissibly depends on attributing to the jury -- in violation
of the passage quoted above from Martignetti -- an allocation of
less than 100 percent of the response costs among the "liable"
parties.
Thomas & Betts, however, misunderstands the passage in
Martignetti on which it relies. In that case, the SJC construed
§ 4 of Chapter 21E merely to require that response costs be shared
"among parties whose underlying liability to the Commonwealth is
imposed by the provisions of § 5." Id. (emphasis added). In other
words, Martignetti does hold that, under § 4, a party must at least
be "liable to the Commonwealth" under § 5 in order to be "liable
to" another party, under § 4, for the response costs that party
had incurred. But, Martignetti does not hold that § 5 requires
that every party who is "liable to the Commonwealth" is also
- 45 -
necessarily, under § 4, "liable" to other parties for the response
costs that each of them had incurred. Mass. Gen. Laws ch. 21E,
§ 5(b). Rather, a person who is "liable to the Commonwealth"
solely under § 5(a)(1), i.e., a current owner, is not liable to
parties seeking reimbursement under § 4 -- unless the party seeking
reimbursement is also "liable to the Commonwealth" solely under
§ 5(a)(1) -- if the current owner can show, per § 5(b), that it
did not own the site at the time of the release in question and
did not "cause or contribute" to the release.
This parsing of Martignetti matters, moreover, in the
following way. In considering this challenge to the verdicts, we
"must attempt to reconcile the jury's findings, by exegesis if
necessary." Acevedo-Diaz v. Aponte, 1 F.3d 62, 74 n.15 (1st Cir.
1993) (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,
119 (1963)). And, on the basis of this parsing, we conclude,
consistent with Martignetti, that the jury's verdicts may be
reconciled in the manner that the defendants' joint response
proposes without running afoul of Chapter 21E.
Chapter 21E permitted the jury to find that New
Albertson's was "liable to" the Commonwealth under § 5(a)(1) for
the release or threat of release of PCBs into Mother Brook and
thus incurred response costs of its own. But, Chapter 21E did not
thereby require the jury also to find that, under § 4, New
Albertson's was "liable to" Thomas & Betts for any (let alone all)
- 46 -
of its response costs. A party "liable to" the Commonwealth under
§ 5(a)(1) need not also be found, under § 4, "liable to" any other
party that incurred response costs. And, the jury could also have
found, New Albertson's was entitled to reimbursement under § 4 by
Thomas & Betts for the portion of the response costs New
Albertson's incurred that New Albertson's could prove that Thomas
& Betts owed to it, even though New Albertson's could not show
under § 4 that Thomas & Betts was liable to it for all the response
costs that New Albertson's had incurred.
Thomas & Betts, moreover, makes no argument that the
record fails to provide adequate evidentiary support for any such
findings. And that is no surprise. The jury found that New
Albertson's did not "cause[] or contribute[] to the release of
PCBs to the banks or streambed of Middle or Lower Mother Brook[.]"
That is the finding that, pursuant to § 5(b), a jury has to make
in order for the jury to find that a party that is "liable to" the
Commonwealth under § 5(a)(1) is not, under § 4, "liable to" other
parties for a share of their response costs.
We thus find no inconsistency in the verdicts. And,
having thus dispensed with the challenges that Thomas & Betts
brings to the judgment concerning its claims based on § 4 of
Chapter 21E, we turn to the challenges that the other parties to
these consolidated appeals bring.
- 47 -
III.
We start by considering the challenges brought by Alfa
Laval, a centrifuge manufacturer and a past owner of the south
bank property across the canal from New Albertson's property. We
find no merit in them.
A.
The jury found that Alfa Laval, under § 4 of Chapter
21E, was "liable to" Thomas & Betts for 14 percent of its response
costs but was not "liable to" New Albertson's for any of its
response costs. Alfa Laval contends both that the evidence did
not suffice to support the judgment that it was "liable to" Thomas
& Betts under § 4 for the response costs that it had incurred and
that the District Court made two reversible trial errors. We
address these three arguments in turn.
1.
Alfa Laval unsuccessfully pressed its sufficiency
challenge in both a (renewed) motion for judgment as a matter of
law under Rule 50(b) of the Federal Rules of Civil Procedure and
in an alternative motion for a new trial under Rule 59 of the
Federal Rules of Civil Procedure. A renewed motion for judgment
as a matter of law under Rule 50(b) may be granted "only if a
reasonable person, on the evidence presented, could not reach the
conclusion that the jury reached," and we review its denial de
novo. Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st
- 48 -
Cir. 2008). A motion for a new trial under Rule 59 may be granted
only "if the verdict is against the law, against the weight of the
credible evidence, or tantamount to a miscarriage of justice," and
we review its denial for an abuse of discretion. Teixeira v. Town
of Coventry, 882 F.3d 13, 16 (1st Cir. 2018)(quoting Casillas-Díaz
v. Palau, 463 F.3d 77, 81 (1st Cir. 2006)).
Alfa Laval contends that the evidence was insufficient
for a jury reasonably to find an adequate basis for its liability
under either § 5(a)(2) or § 5(a)(5) of Chapter 21E. Thus, Alfa
Laval contends, a jury could not reasonably find it liable, under
§ 4 of that Chapter, for an equitable share of the response costs
that Thomas & Betts incurred.12 Because the rule in our circuit
in civil cases is that a new trial that has been requested is
"usually warranted" if the evidence is insufficient with respect
to any one of multiple theories covered by a special verdict
question, Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29-30
(1st Cir. 2004) (quoting Kerkhof v. MCI Worldcom, Inc., 282 F.3d
44, 52 (1st Cir. 2002)), we address each of Alfa Laval's
sufficiency challenges in turn.
Under § 5(a)(2), a "person" is liable both to the
Commonwealth and to parties seeking reimbursement under § 4 if "at
12We note, though, that Alfa Laval does not argue that,
insofar as the evidence does suffice to show that it could be
allocated an equitable share of the response costs of others under
§ 4, the share allocated to it was too high.
- 49 -
the time of storage or disposal" that person "owned or operated
any site at or upon which such hazardous material was stored or
disposed of and from which there is or has been a release or threat
of release of hazardous material." Mass. Gen. Laws ch. 21E,
§ 5(a)(2). Alfa Laval contends that Thomas & Betts failed to
provide an adequate evidentiary basis -- as opposed to mere
"conjecture or speculation" -- upon which a jury could rely to
find that it "stored or used PCBs during its ownership/operation
of the 1415 property."
All parties stipulated that American Tool & Machine
Company ("AT&M"), which owned and operated that property before
Alfa Laval purchased it, caused or contributed to a release of
PCBs because of its industrial operations on that property. And,
Alfa Laval contends, the PCBs on its property are attributable
only to AT&M's prior operations on that site and not to Alfa
Laval's own activity on that property after purchasing AT&M's
business operations in 1968.
But, Thomas & Betts contends, "[l]ooking at the record
as a whole[,] . . . it was eminently reasonable for a jury to
conclude that Alfa Laval, which bought AT&M's tool-making
operation lock, stock and barrel, also used and disposed of PCBs
and is therefore liable under § 5(a)(2)." To support this
contention, Thomas & Betts points to the following facts: "All of
the employees, [including] the foreman and the manager for Alfa
- 50 -
Laval came directly from AT&M[;]" Alfa Laval manufactured the same
products as AT&M; and Alfa Laval "used cutting, hydraulic and
lubricating oils in the manufacture of those products, as did
AT&M." Thomas & Betts further notes that Alfa Laval presented no
evidence to the jury that its operations differed in any material
respects from AT&M's.
We agree that, on this record, an inference of continued
PCB usage was "plainly reasonable in the absence of any evidence
cutting against it." W. Props. Serv. Corp. v. Shell Oil Co., 358
F.3d 678 (9th Cir. 2004); see also United States v. Davis, 261
F.3d 1, 32 (1st Cir. 2001) ("[D]irect evidence is not a
prerequisite to proving the elements of liability in a contribution
action [under CERCLA]."); Niagara Mohawk Power Corp. v. Chevron
U.S.A., 596 F.3d 112, 131 (2d Cir. 2010) ("[T]here is nothing
objectionable in basing findings [for purposes of liability in
CERCLA] solely on circumstantial evidence, especially where the
passage of time has made direct evidence difficult or impossible
to obtain." (quoting Franklin Cty. Convention Facilities Auth. v.
Am. Premier Underwriters Inc., 240 F.3d 534, 547 (6th Cir. 2001))).
Thus, Alfa Laval's first challenge to the sufficiency of the
evidence fails.
Moreover, Thomas & Betts contends that spreading
contaminated soil during construction is properly considered
"disposal" for purposes of § 5(a)(2), based in part on precedent
- 51 -
construing that term in CERCLA. See Tanglewood E. Homeowners v.
Charles-Thomas, Inc., 849 F.2d 1568, 1573 (5th Cir. 1988);
Bonnieview Homeowners Ass'n v. Woodmont Builders, LLC, 655 F. Supp.
2d 473, 492 (D.N.J. 2009) (finding that under CERCLA "a 'disposal'
may occur when a party disperses contaminated soil during the
course of grading and filling a construction site" (quoting Redwing
Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1510 (11th
Cir. 1996))). We have previously explained that "CERCLA is in
many ways analogous to the Massachusetts statute," and that "the
Massachusetts courts construe [Chapter 21E] in line with the
federal decisions absent compelling reasons to the contrary or
significant differences in the content." John S. Boyd Co., Inc.
v. Bos. Gas. Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). Alfa
Laval, for its part, does contest this legal point, but only in
its reply brief, which it may not do.13 See Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000).
We turn, then, to Alfa Laval's contention that the record
failed to provide a supportable basis for a jury to find Alfa Laval
liable under § 5(a)(2) on the basis of its construction-related
13 Alfa Laval's reply brief, we note, concludes that the
conduct at issue does not constitute a "disposal" for purposes of
§ 5(a)(2) solely on the basis of a Massachusetts Superior Court
case, Byrnes v. Massachusetts Port Auth., No. 920178, 1994 WL
879644 (Mass. Super. Mar. 2, 1994), that concerned "leaking" and
"leaching" of contaminants and not the kind of construction-
related activities that are at issue here.
- 52 -
grading and excavation activities. Thomas & Betts introduced
aerial photographs of the site that showed that Alfa Laval
demolished buildings, engaged in construction, graded an area to
build a parking lot, and otherwise disturbed the soil on the
property where significant PCB concentrations were later found.
Alfa Laval responds that Thomas & Betts's expert impermissibly
provided "speculation, conjecture and generalization" in claiming
that these activities caused releases of PCBs into Mother Brook.
But, a jury could have drawn a reasonable inference that
"[t]he amount of earthwork and [] disturbance of the soil" and the
undisputed fact that Alfa Laval "removed certain improvements from
the property[] and added a new building and parking surface" showed
that there was a release of PCBs from the property into Mother
Brook during Alfa Laval's period of ownership and thus that Alfa
Laval was liable under § 5(a)(2). See Davis, 261 F.3d at 32;
Niagara Mohawk Power Corp., 596 F.3d at 131. Thus, we conclude
that the concerns that Alfa Laval raises about Thomas & Betts's
expert's testimony go only to the "weight, not sufficiency," of
the evidence. See Milone v. Moceri Family, Inc., 847 F.2d 35, 40
n.5 (1st Cir. 1988). Accordingly, we reject Alfa Laval's challenge
- 53 -
that a reasonable jury could not have found it liable under
§ 5(a)(2).14
Alfa Laval separately contends that there was
insufficient evidence for a jury to find that it was liable to
Thomas & Betts under § 5(a)(5). That provision imposes liability
to the Commonwealth and to parties seeking reimbursement under § 4
on "any person who otherwise caused or is legally responsible for
a release or threat of release of oil or hazardous material from
a . . . site." Mass. Gen. Laws ch. 21E, § 5(a)(5). Alfa Laval
correctly contends that, to prevail on a § 5(a)(5) theory of
liability, "a plaintiff must first establish both that the
defendant caused the release and that the release caused the
contamination." And, Alfa Laval notes, "cause" in this context
"means legal or proximate cause." One Wheeler Rd. Assocs. v.
Foxboro Co., No. 90-12873, 1995 WL 791937, at *8 (D. Mass. Dec.
13, 1995).
Alfa Laval argues that this standard of liability is
"higher than that applied to § 5(a)(2)." Thus, for the same
14 To the extent Alfa Laval is making the separate argument
that the release of PCBs from its property was not a "but for"
cause of the contamination and thus that it is not "liable" under
§ 5(a)(5) of Chapter 21E, this challenge also fails. Alfa Laval
points to testimony from Dr. Neil Shifrin to show that the
contamination from Thomas & Betts's property was "more than
sufficient" to cause the contamination in Mother Brook. But this
is merely another form of a de minimis defense to liability under
§ 5, which is expressly foreclosed by Acushnet. 191 F.3d at 71.
- 54 -
reasons that it contends that Thomas & Betts failed to prove
§ 5(a)(2) liability, Alfa Laval argues that Thomas & Betts also
falls short on this theory as well.
Alfa Laval's only argument that Thomas & Betts failed to
provide sufficient evidence of liability under § 5(a)(5), however,
is that Thomas & Betts failed to provide adequate evidence of
causation of a release. But, as we have already explained, a
reasonable jury could have found that Alfa Laval's industrial
operations on the site involved the active use, storage, and
disposal of PCBs and that releases of PCBs occurred at this time.
And, as we also have already explained, a jury could additionally
have concluded that construction-related activities by Alfa Laval
on the site further caused releases of PCBs.
Moreover, Alfa Laval makes no argument -- aside from
merely pointing out that the legal standard for liability is higher
under § 5(a)(5) than it is under § 5(a)(2) -- that, even if a jury
could reasonably have found these facts and imposed liability
pursuant to § 5(a)(2), these actions by Alfa Laval do not suffice
also to show § 5(a)(5) liability. Thus, we fail to see why a
reasonable jury could not conclude that Alfa Laval "legal[ly] or
proximate[ly] caused," One Wheeler Rd. Assocs., 1995 WL 791937, at
*8, a release of PCBs into Mother Brook based on its industrial
and construction activities. Accordingly, we reject Alfa Laval's
challenge to the verdict on sufficiency grounds.
- 55 -
2.
Having rejected the challenges to the sufficiency of the
evidence of liability under § 5, such that Alfa Laval could be
found "liable to" Thomas & Betts under § 4, we now turn to Alfa
Laval's challenges to certain alleged trial errors. The first
challenge is to the District Court's denial of Alfa Laval's motion
for a new trial because of an instructional error that it contends
that the District Court made during its charge to the jury. The
instruction concerned Alfa Laval's potential liability under § 4
to Thomas & Betts for reimbursement of its response costs based on
Alfa Laval being the alleged successor to a company -- AT&M --
that previously owned the site.
The District Court instructed the jury that "Thomas &
Betts has to prove what's called 'successor liability'" and that
the jury should consider four factors in deciding whether Thomas
& Betts has proven such. The District Court then listed the four
factors that must be considered with respect to this de-facto-
merger exception to the default no-liability rule. After doing
so, the District Court also told the jury that: "No single one
factor is necessary or sufficient, you must determine the substance
of the agreement of the parties, is it implicit that Alfa Laval
would succeed to the legal obligations of [AT&M]?"
Alfa Laval objected to this instruction on the ground
that the District Court had not "talked about the general rule
- 56 -
that there is no liability and that there has to be an element of
proof proving up an exception." The District Court overruled that
objection, and Alfa Laval now presses that same challenge to the
instruction on appeal.15
We review de novo whether a jury instruction in context
"presented the relevant issues to the jury fairly and adequately."
Goodman, 380 F.3d at 47. Here, however, the District Court plainly
instructed the jury that "Thomas & Betts has to prove what's called
'successor liability.'" But, because "judges generally need not
mimic the precise wording of a party's preferred instruction,"
United States v. Denson, 689 F.3d 21, 26 (1st Cir. 2012), we reject
Alfa Laval's challenge to this jury instruction.
3.
Alfa Laval's challenge to the other asserted trial error
concerns the District Court's exclusion of certain testimony by an
expert witness, James O'Brien. Alfa Laval did not make this
15Alfa Laval also contends on appeal that the District Court
erred by not instructing the jury regarding the other
exceptions -- beyond the exception for a de-facto merger -- to the
default no-liability rule. We agree with Thomas & Betts, however,
that Alfa Laval did not preserve this issue below. Nor does Alfa
Laval make a plain error argument. See Chestnut v. City of Lowell,
305 F.3d 18, 20 (1st Cir. 2002) (describing the plain error test).
In any event, we fail to see how Alfa Laval could have been
prejudiced by an instruction that minimized the grounds on which
Alfa Laval could be found liable. See Goodman, 380 F.3d at 47
(explaining that instructional error warrants a new trial only
upon a showing of prejudice).
- 57 -
challenge before the District Court in either its motion for a new
trial or in its motion for judgment as a matter of law. Thomas &
Betts, however, makes no argument that our review should thus be
for plain error, let alone that the issue is waived. In any event,
we conclude that Alfa Laval fails even under the more generous
abuse of discretion standard that we apply when reviewing a
District Court's decision to exclude expert testimony. Wilder v.
Eberhart, 977 F.2d 673, 676 (1st Cir. 1992).16
At trial, O'Brien attempted to testify as to the
likelihood that PCBs flowed from Alfa Laval's property to the south
bank on the basis of "total PCB" data. Thomas & Betts objected to
this testimony on the basis that it constituted a "new opinion."
The District Court sustained this objection. See Poulis-Minott v.
Smith, 388 F.3d 354, 358 (1st Cir. 2004) (explaining that the
failure to disclose an expert opinion before trial precludes the
introduction of that opinion at trial), and O'Brien was prevented
from testifying about that opinion at trial.
16 Alfa Laval separately contends that the District Court's
failure to rule comprehensively on Thomas & Betts's pretrial motion
to exclude reference, including by O'Brien, to so-called Aroclor
data was an abdication of the District Court's gatekeeping role.
Aroclor data differentiates between types of PCBs. Yet Alfa Laval
cites no authority to support its contention that the District
Court's ruling on the presentation of the Aroclor data on an
expert-by-expert basis constitutes an abdication of this
gatekeeping role. Accordingly, this challenge is waived for lack
of development. Zannino, 895 F.2d at 17.
- 58 -
Alfa Laval now contends on appeal that the District Court
erred because O'Brien's pre-trial expert report itself referenced
"total PCB [] data" that were available for various sediment
samples. Thus, Alfa Laval contends, the proposed testimony that
the District Court barred O'Brien from giving did not constitute
a new opinion because the pre-trial report had already disclosed
it.
O'Brien did not reach any conclusions, however, in his
pre-trial report on the basis of total PCB data. Nor did he
disclose in that report -- or elsewhere -- the methodology by which
he would reach any such conclusions. Thus, the mere fact that
O'Brien's pre-trial report disclosed that he had reviewed total
PCB data did not preclude the District Court from finding, in its
discretion, that the opinions and conclusions that he drew from
that data were "new" and thus inadmissible because they were not
previously disclosed. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997) (finding that district courts do not abuse their
discretion when they decline to admit opinion evidence that "is
connected to existing data only by the ipse dixit of the expert"
or where there is "simply too great an analytical gap between the
data and the opinion proffered"); see also Licciardi v. TIG Ins.
Grp., 140 F.3d 357, 363 (1st Cir. 1998) (explaining that the
disclosure requirements regarding expert opinions are intended "to
alleviate the heavy burden placed on a cross-examiner confronted
- 59 -
by an opponent's expert whose testimony had just been revealed for
the first time in open court" (internal quotations omitted)).
IV.
We now turn to the appeal by the Charter School Parties.
The jury found the Charter School Parties "liable to" Thomas &
Betts, with respect to its claims based on § 4 of Chapter 21E, for
1 percent of the response costs that it had incurred. The District
Court entered judgment against the Charter School Parties on that
basis. The Charter School Parties challenge the District Court's
denial of its renewed motion for judgment as a matter of law. They
argued in that motion that the evidence was insufficient as a
matter of law to support a finding that they were "liable to"
Thomas & Betts under § 4 of Chapter 21E for any of its response
costs, and that, to the extent that they were liable, the evidence
did not suffice to support the finding that they were responsible
for 1 percent of the response costs, small though that allocation
is. See Fed. R. Civ. P. 50(b). Accordingly, they contend that
because there is insufficient evidence on any of the theories to
support the judgment below, they are entitled to judgment as a
matter of law. Judgment as a matter of law is warranted only if
the evidence "is so one-sided that the movant is plainly entitled
to judgment" such that "reasonable minds could not differ as to
the outcome." Gibson v. City of Cranston, 37 F.3d 731, 735 (1st
- 60 -
Cir. 1994). Our review of the District Court's denial of such a
motion is de novo. See Visible Sys., 551 F.3d at 71.
A.
It is true, as the Charter School Parties point out,
that they did not become the owners of the south bank property
abutting Mother Brook until September of 2008. But, contrary to
the Charter School Parties' contention, Thomas & Betts offered
sufficient evidence from which the jury could have reasonably found
that, after the Charter School Parties acquired the south bank
property in 2008, there was a "release or threat of release" from
or at that property. Mass. Gen. Laws ch. 21E, § 5(a)(1). Thus,
a jury could reasonably find that the Charter School Parties were
"liable to" Thomas & Betts for at least some portion of its
response costs under § 4, as the jury could have found that, under
§ 5(a)(1), the Charter School Parties were "liable" for a "release
or threat of release" of PCBs as a current owner of a property.
Id.
In arguing otherwise, the Charter School Parties devote
a great deal of time and attention to what the evidence showed
about a single drain basin, discovered on its property in 2009.
They contend that this evidence alone does not permit a jury
reasonably to find that there had been a release or threat of
release of PCBs into Mother Brook at all during their period of
ownership of the property. The Charter School Parties emphasize
- 61 -
that the evidence of the amount of PCBs traceable to that basin
was simply too miniscule to support any such finding. Thus, the
Charter School Parties contend that they fall within the exception
found in § 5(b). That exception provides that parties whose
liability under § 5 is premised on § 5(a)(1) are liable only to
the Commonwealth -- and thus not to other parties in a § 4
reimbursement suit -- if the release occurred prior to their period
of ownership and they did not "cause or contribute" to the release
or threat of release in question. Id. § 5(b).
But, even if we accept that point about the drain basin
evidence, there is still the testimony of an expert for Thomas &
Betts, Dr. David Langseth. He testified that the PCBs lurking in
the Charter School Parties' soil were carried into Mother Brook by
surface runoff and thus that there was a release of PCBs into
Mother Brook from the Charter School Parties' property during their
period of ownership of it.
The Charter School Parties do attempt to address this
testimony. They argue that Langseth testified that any PCBs on
their soil were "at depth" -- i.e., located only very deep in the
soil -- and thus could not be mobilized by surface runoff or
erosion.
But, Langseth also testified that there were PCBs at the
surface level. Indeed, the jury heard testimony and saw evidence
- 62 -
of significant concentrations of PCBs at the surface level of the
Charter School Parties' property as late as October of 2009.
Thus, the jury could reasonably find that there were
high concentrations of PCBs in the topsoil on the property during
the relevant period. Such a finding would be significant.
Langseth testified that surface runoff carries soil and PCB
particles with it, and that, in consequence of the slope of the
property, all rainfall -- and thus all surface runoff from the
property -- would end up in Mother Brook.
The Charter School Parties further argue in response
that Langseth's testimony is too "speculative." They contend that
his testimony focused primarily on features of the property -- such
as its slope and the extent of paved surfaces -- that long predated
their ownership of that property. And, the Charter School Parties
contend, there were significant changes to the property, including
the addition of paved surfaces that would prevent runoff and the
construction of a barrier to prevent erosion from the property
into Mother Brook, in the years leading up to the Charter School
Parties' purchase.
The Charter School Parties overlook the fact, however,
that the jury received evidence that showed that not all of the
property was paved during the time that they owned it and that the
portions of the property that were not paved included portions
with the highest concentration of PCBs, which were located closest
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to Mother Brook. Moreover, Dr. Mark Tompkins, an expert for
another defendant, testified that while the protective barrier
along the streambed would have helped prevent erosion of
contaminated soil into Mother Brook, there were "unprotected
area[s]" on the property from which PCBs "could be mobilized and
transported over the [barrier]."
Thus, we agree with Thomas & Betts that a reasonable
jury could have found, based on the evidence, that there were high
levels of PCBs in the surface-level soil at the time the Charter
School Parties owned the property, that some portions of the
contaminated areas of that property were unpaved at that time, and
that all runoff from the property goes to Mother Brook. We thus
agree with Thomas & Betts that a jury supportably could have found
that the Charter School Parties were liable under § 5(a)(1) based
on a release or threat of release of PCBs that occurred after they
acquired the property. And, therefore, the jury was entitled to
find, under § 4, that the Charter School Parties were "liable to"
Thomas & Betts for an equitable share of its response costs.
Separately, the jury also could have based that same
finding on still other evidence in the record. Specifically, the
jury could have found that the Charter School Parties' construction
projects on the property led to soil disruption and thus a release
of PCBs into Mother Brook. In particular, the jury received
evidence that showed both that there was significant construction
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on the Charter School Parties' property near Mother Brook after
the Charter School Parties acquired the property and that the
construction had to be halted because of the presence of PCBs. In
fact, the record contains evidence of correspondence between the
Charter School Parties' project management company and
construction company, in which the construction company wrote
"[o]n September 2, 2009 we received notice from your office to
halt the work on the north side . . . of the [Charter School] site
due to the detection of PCB[s]." Therefore, a jury could
supportably find that there were construction activities on the
property that led to a release of PCBs during the Charter School
Parties' period of ownership and, thus, that the Charter School
Parties must reimburse Thomas & Betts for response costs. See
Mass. Gen. Laws ch. 21E, §§ 4, 5(a)(1).
In their reply brief, the Charter School Parties make
one additional argument about why, under § 4, they cannot be found
"liable to" Thomas & Betts for the response costs that they
incurred. They contend that any release or threat of release of
PCBs that a jury could supportably have found to have occurred on
the property during the time that the Charter School Parties owned
it occurred after the MassDEP directed Thomas & Betts to remediate
Mother Brook (albeit before Thomas & Betts completed the
remediation). And, the Charter School Parties contend, any release
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or threat of release at that point is not one that may make them
liable to reimburse Thomas & Betts for its response costs.
The Charter School Parties rely for this argument on
§ 5(b) of Chapter 21E. That provision states, in pertinent part,
that a current owner "who did not own or operate the site at the
time of the release . . . in question and did not cause or
contribute to such release" may not be liable under Chapter 21E.
Mass. Gen. Laws ch. 21E, § 5(b). The Charter School Parties
contend that "the release . . . in question" is necessarily the
release of PCBs that the MassDEP directed Thomas & Betts to
remediate, as opposed to the "release" from or at the Charter
School Parties' site to which the immediately preceding section
refers. See id. § 5(a). And, the Charter School Parties contend,
because the MassDEP directed that remediation before they
purchased the south bank property in 2008, they "did not own or
operate the site at the time of the release . . . in question" and
are not "liable to" a "person," such as Thomas & Betts, seeking
reimbursement under § 4 of Chapter 21E. Id. § 5(b).
The Charter School Parties did not, however, make this
argument either to the District Court or in its opening brief to
us. And, "[w]e have held, with a regularity bordering on the
monotonous, that issues advanced for the first time in an
appellant's reply brief are deemed waived." Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000). That rule,
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moreover, is especially applicable here. The Charter School
Parties appeared to take a contrary position in their opening brief
about the import of the phrase "release . . . in question" than
the one that they advance for the first time in their reply brief.
In their opening brief, they conceded that "the jury could have
found [them] liable if there was evidence that [they] 'caused' or
'contributed to' a release of PCBs to the banks or streambed of
Mother Brook after [they] bought the property." (emphasis added).
B.
In their appeal from the District Court's denial of their
motion for a judgment as a matter of law, the Charter School
Parties also contend the following. They argue that, even if the
evidence sufficed to support a finding that they were "liable" for
a release or threat of release of PCBs under § 5 of Chapter 21E,
the jury's verdict that, under § 4, they were "liable to" Thomas
& Betts for 1 percent of the response costs that it had incurred
is not supportable. They contend that the evidence simply did not
suffice to support the jury's determination that there was enough
of a "causal link," John Beaudette, 644 N.E.2d at 220 (quoting
Providence & Worcester R.R. v. Chevron U.S.A., Inc., 622 N.E.2d
262, 264 (Mass. 1993)), between a release or threat of release
from their property after they purchased it and the response costs
incurred by Thomas & Betts to justify an allocation under § 4 of
even 1 percent of those response costs to them. Id. at 220-21.
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Thus, they contend, Thomas & Betts was not entitled to have them
reimburse it for that share (small though it is) of those costs.
Id. at 220-21; see Acushnet 191 F.3d at 78. Accordingly, the
Charter School Parties contend that they are entitled to judgment
as a matter of law for this reason, too.
In support of this aspect of the Charter School Parties'
challenge, the Charter School Parties first argue that they should
not be liable to Thomas & Betts for any share of response costs
under § 4 incurred by Thomas & Betts as a result of PCBs released
from their property prior to the Charter School Parties possession
of the property. But, this argument is beside the point, given
our conclusion that the jury could supportably find that there
were releases from that property following the point in time at
which the Charter School Parties owned the property.
The Charter School Parties also argue that the release
caused by the drain pipe is too minimal to justify allocation of
any response costs to the Charter School Parties, let alone
1 percent of them. But, as we have already explained, a jury could
supportably find on the basis of other evidence the Charter School
Parties liable to Thomas & Betts under § 4 of Chapter 21E for an
equitable share of its response costs because of a release or
threat of release from their property during the time that they
owned or operated it. And the Charter School Parties make no
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argument that an allocation of 1 percent of the response costs, if
based on that evidence, cannot be sustained.
V.
We next turn to the challenge that Thomas & Betts brings
to the portion of the District Court's judgment that awarded
prejudgment interest to New Albertson's on the amount that Thomas
& Betts was found liable to pay it pursuant to Chapter 21E. New
Albertson's moved, over Thomas & Betts's objection, to amend the
initial judgment on the verdict to include the roughly $2.9 million
that it had already paid pursuant to the joint remediation
agreement and for an award of prejudgment interest on that amount
pursuant to § 6B or § 6H of Chapter 231. The District Court then
granted the motion and awarded prejudgment interest to New
Albertson's on the amount that included the roughly $2.9 million.
"We review an award of prejudgment interest for abuse of
discretion, . . . but legal issues relating to the prejudgment
interest award are reviewed de novo." Analysis Grp., Inc. v.
Central Florida Invs., Inc., 629 F.3d 18, 24 (1st Cir. 2010).
Thomas & Betts contends that it was legal error to award
prejudgment interest "based on an arbitrary interpretation of the
provisions of the Joint Response Agreement." Specifically, Thomas
& Betts argues that "[w]hile the Joint Response Agreement reserves
each party's claims to 'recover its costs,'" including the
reallocation of the roughly $2.9 million dollars previously paid
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by New Albertson's to Thomas & Betts, the terms of the Joint
Response Agreement "d[id] not provide for interest on the recovered
amount."
But, the District Court did not base the award of
prejudgment interest on the terms of the agreement. The District
Court entered judgment "in favor of [New Albertson's] against
[Thomas & Betts] in the amount of $3,517,855.61, computed as the
sum of $593,548.73 awarded by the jury's verdict plus $2,924,306.88
that all parties have stipulated [New Albertson's] paid [Thomas &
Betts] on an interim basis under those parties' November 8, 2007
'Mother Brook Stream Bank Remediation / Stabilization Agreement'
. . . ." The District Court then awarded prejudgment interest on
the entire amount pursuant to either § 6B or § 6H of Chapter 231,
as each makes clear that prejudgment interest "shall be added" in
certain kinds of cases. Mass. Gen. Laws ch. 231, §§ 6B, 6H.
Notably, Thomas & Betts does not dispute that funds
awarded in a judgment based on § 4 of Chapter 21E for "response
costs" qualify as funds for which prejudgment interest "shall be
added" under § 6B or § 6H of Chapter 231. Thus, we fail to see
how, in light of the text of the District Court's judgment, the
roughly $2.9 million awarded to New Albertson's is not an amount
that is subject to these statutory provisions regarding the adding
on of prejudgment interest.
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Consistent with this conclusion, we note that the very
terms of the stipulation that the District Court references as the
basis for including the roughly $2.9 million in the judgment is
the fact that "New Albertson[']s reimbursed Thomas & Betts
$2,924,306.88 for response costs incurred in the remediation of
the banks of Middle Mother Brook." We note, too, that Thomas &
Betts does not develop any argument that, under the joint
remediation agreement, even if prejudgment interest must be added
on to the roughly $2.9 million referenced in the judgment pursuant
to § 6B or § 6H, New Albertson's somehow contractually relinquished
its right to obtain those funds.
For these reasons, we reject the contention by Thomas &
Betts that the District Court's award of prejudgment interest on
the response costs awarded in the judgment constitutes legal error.
We thus turn to the only remaining issues, which concern the
District Court's judgment awarding attorney's fees under Chapter
21E.
VI.
Section 15 of Chapter 21E allows an award of "costs,
including reasonable attorney and expert witness fees, to any party
who advances the purposes of this chapter." Mass. Gen. Laws ch.
21E, § 15.17 New Albertson's requested attorney's fees pursuant
17 The provision provides in full:
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to this section. Over Thomas & Betts's objection, the District
Court entered a judgment in favor of New Albertson's and against
Thomas & Betts in the amount of $1,747,188.59 for costs, including
reasonable attorney and expert witness fees.
Both parties have appealed that ruling. The challenge
to the award of attorney's fees raises a question of Massachusetts
law. Peckham v. Cont’l Cas. Ins. Co., 895 F.2d 830, 841 (1st Cir.
1990). We review the District Court's award determination "only
for a mistake of law or abuse of discretion." Heien v. Archstone,
837 F.3d 97, 100 (1st Cir. 2016) (reviewing the award of attorney's
fees in a diversity case applying Massachusetts law).
A.
Thomas & Betts challenges the attorney's fees award to
New Albertson's on the ground that New Albertson's is not entitled
to attorney's fees under § 15 of Chapter 21E because it is not a
party "who advance[d] the purposes of this chapter." Mass. Gen.
In any suit by Massachusetts residents to
enforce the requirements of this chapter, or
to abate a hazard related to oil or hazardous
materials in the environment, the court may
award costs, including reasonable attorney and
expert witness fees, to any party other than
the commonwealth who advances the purposes of
this chapter.
Mass. Gen. Laws ch. 21E, § 15.
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Laws ch. 21E, § 15.18 Thomas & Betts asserts that the SJC's
precedents establish a "two part test" under § 15 to determine
whether a party advanced the purposes of Chapter 21E.
Specifically, Thomas & Betts contends, "even if the equitable
allocation [to the party seeking to recover attorney's fees] is
zero, [that party] must also be found not to have caused or
contributed to a release in order to recover fees." Thomas & Betts
therefore argues that New Albertson's did not advance the purposes
of Chapter 21E because the jury found New Albertson's equitably
responsible for 25 percent of its own response costs.
But, in the SJC's most recent decision on § 15, Bank,
the SJC expressly stated that "[a]ll that [Mass Gen. Laws ch.]
21E, § 15, requires is that a plaintiff has sought reimbursement
under [Mass Gen. Laws ch.] 21E, § 4, and has not contributed to
the hazardous waste release." 888 N.E.2d at 921. And, while
Thomas & Betts is correct that the plaintiffs who won an attorney's
fees award in Bank were not found responsible for any equitable
share of the response costs incurred in the cleanup, Bank did not
18 Thomas & Betts contends in the alternative that, even if
New Albertson's may recover fees under Chapter 21E, the liability
for the fees should have been allocated severally among Thomas &
Betts and the other two parties found "liable to" Thomas & Betts
under § 4 of Chapter 21E for portions of its response costs (albeit
not New Albertson's) -- that is, Alfa Laval and the Charter School
Parties. As the District Court correctly pointed out, however,
the problem with this argument is that neither Alfa Laval nor the
Charter School Parties were found "liable to" New Albertson's in
the action that New Albertson's brought under § 4 of Chapter 21E.
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rely on that fact to determine which parties could recover the
fees. See id. at 905.
Moreover, Bank relied on Martignetti. The SJC explained
there that "a party which has not contributed to, or caused, the
release of hazardous materials necessitating its response actions
can 'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by
bringing a § 4 claim, and therefore only such a party may be
awarded attorney's fees and costs under § 15." Martignetti, 680
N.E.2d at 1148 (alteration in original); see also id. at 1148
n.42.19 Notably, Martignetti did not state that a party was
precluded from obtaining fees if it incurred response costs of its
own that were not fully reimbursed.
We note as well that Martignetti drew upon Sanitoy v.
Ilco Unican Corp., 602 N.E.2d 193, 197 (Mass. 1992), which involved
facts quite similar to those presented by this appeal. There, the
SJC allowed a plaintiff to recover attorney's fees under § 15 of
Chapter 21E, even though the jury did not award the plaintiff 100
percent of its response costs for which it sought reimbursement
under § 4. The jury had found the defendant "wholly responsible
19
We need not address whether a "person" who did not "cause
or contribute" to the release within the meaning of § 5(b) of
Chapter 21E, but nevertheless owned the property at the time of
the release and thus is "liable to" both the Commonwealth and a
"person" seeking reimbursement for response costs under § 4, see
Mass. Gen. Laws ch. 21E, § 5(b), would be considered to have
"advanced the purposes" of Chapter 21E. Id. § 15.
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for the contamination on the portion of the site it had previously
owned," and the jury awarded the plaintiff its response costs
incurred in cleaning up that portion of the site. Martignetti,
680 N.E.2d at 1147. But, the plaintiff had incurred additional
response costs for cleaning up other portions of the site for which
it was not reimbursed (and for which the record did not indicate
that it was causally responsible for the contamination). Id. The
SJC nevertheless held that the plaintiff was entitled to "the full
amount" of its attorney's fees. Sanitoy, 602 N.E.2d at 197.20
Thomas & Betts does point to a passage in Martignetti in
order to support its position. In that passage, the SJC, upon
vacating a Chapter 21E verdict and remanding the case, concluded
that "if, in a new trial, the plaintiffs are found to be liable
for an equitable share of the response costs, they will not be
entitled to an award of attorney's fees and costs under § 15."
680 N.E.2d at 1147. Thomas & Betts asserts that this passage shows
the following: Any plaintiff that does not fully recover its
response costs -- and thus that must pay for at least some of them
in a Chapter 21E reimbursement action based on § 4 -- may not
20Thomas & Betts does point out that the plaintiff in Sanitoy
was not found liable for an equitable share of response costs under
§ 4 of Chapter 21E with respect to the defendant's portion of the
contaminated site for which it was awarded response costs and
attorney's fees. See 602 N.E.2d at 197. However, Thomas & Betts
does not explain how that fact bore on the SJC's fees analysis,
nor do we see how it did.
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recover attorney's fees, even if the jury finds that the plaintiff
did not cause or contribute to a release of hazardous material.
But, as we have already explained, under Martignetti,
and in consequence of § 5(b) of Chapter 21E, a "person" may be
"liable to the Commonwealth" by virtue of § 5(a)(1) but not "liable
to" others under § 4 of Chapter 21E. That is only the case,
though, if that "person" neither owned the property at the time of
the release (or threat of release) nor "caused or contributed" to
the release (or threat of release) in question. Mass. Gen. Laws
ch. 21E, § 5(b). And so the phrase in Martignetti "liable for an
equitable share," 680 N.E.2d at 1147 (emphasis added) -- which
comes straight from § 4 itself -- is, in context, best read as
follows. The phrase is merely a reference to whether, for purposes
of § 5(b), the plaintiffs there had "caused or contributed" to a
release of hazardous material, such that they were "liable" under
§ 4 of Chapter 21E to other parties to reimburse them for their
response costs.
This understanding is further bolstered by another
portion of Martignetti. There, the SJC explained that only a
plaintiff that "has not contributed to, or caused, the release of
hazardous materials necessitating its response actions can
'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by bringing
a § 4 claim, and therefore only such a party may be awarded
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attorney's fees and costs under § 15." 680 N.E.2d at 1148
(alteration in original).
Thus, we conclude that New Albertson's was entitled to
attorney's fees from Thomas & Betts because New Albertson's "has
sought reimbursement under [Mass. Gen. Laws ch.] 21E, § 4, and has
not contributed to the hazardous waste release." Bank, 888 N.E.2d
at 921. Accordingly, we move on to the challenge that New
Albertson's makes to the District Court judgment awarding it costs,
including attorney's fees.
B.
The sole challenge that New Albertson's makes to the
fees award concerns its amount. In order to understand the nature
of its challenge, some additional background on the work done by
its attorneys is helpful.
The law firm that represented New Albertson's below,
Sugarman, Rogers, Barshak & Cohen, also represented three other
parties related to the supermarket at the north bank property.
The District Court concluded that the supermarket parties were not
"so similarly situated that this case falls into the 'multiple
interrelated claims' category." Thus, the District Court
concluded that New Albertson's could only recover fees for the
work its counsel did for its benefit and not for the benefit of
the other supermarket parties.
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New Albertson's identified 89 out of 5,469 billing
entries that did not involve work for New Albertson's. But, the
District Court found that some other billing entries corresponded
to work performed "not solely for New Albertsons's benefit (and in
some cases, not for its benefit at all)." Moreover, the District
Court found, New Albertson's had not provided a "meaningful way of
differentiating those entries to which New Albertson[']s has
already applied a discount from various others on which it seeks
to recoup 100 percent" -- which the District Court attributed to
Sugarman Rogers's "purposeful" "failure to keep more detailed
records." Accordingly, the District Court adopted a "keyword
search methodology," which was proposed in an affidavit by Thomas
& Betts's attorney, Howard Merten, so that the District Court could
identify billing entries that corresponded to work done for
multiple parties.
The District Court then discounted the fees awarded
based on these entries to reflect the fact that the work was not
done solely on behalf of New Albertson's. As for how much to
discount those entries, the District Court found the method
proposed by New Albertson's involving "a range of discount
percentages" based on an "individualized" assessment of the
various billing entries to be "so opaque as to preclude effective
review." The District Court therefore adopted Thomas & Betts's
proposed pro-rata discount of 75 percent.
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The parties next submitted motions for the entry of
judgment for fees based on competing keyword lists. The District
Court then issued a written decision determining which proposed
keywords would be accepted or rejected, with an explanation for
each proposed keyword.
New Albertson's asserts that the District Court erred in
several ways. First, New Albertson's contends that the District
Court erred by not addressing whether the work attributable to the
multiple supermarket parties was nevertheless compensable because
it would have been appropriate for that work to have been done for
New Albertson's alone. Second, New Albertson's alleges that the
75 percent discount rate was arbitrary insofar as this rate does
not correspond to the relative litigation interests and risk of
the four supermarket parties. Finally, New Albertson's contends
that the keywords used to identify entries for discounting (such
as "discovery" and "expert") were overbroad.21
As the party seeking the award of attorney's fees, New
Albertson's "bear[s] the burden of producing the necessary
evidence" for it. Bank, 888 N.E.2d at 920. We review for abuse
of discretion. See Sanitoy, 602 N.E.2d at 197. We see none.
21New Albertson's also contends that the District Court erred
by effectively requiring "separate billing accounts for each of
the four Supermarket Parties." However, the record does not show
that the District Court required such.
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We start with New Albertson's argument that the District
Court failed to address whether the billed work was appropriate to
have been done for New Albertson's alone. But, the District Court
did address -- and reject -- that argument. The District Court
explained in its September 29, 2016 order that, "[a]s is clear
from New Albertson[']s's decision to remove certain billing
entries from its fee motion and to reduce others by some
percentage, not all of the work performed by Sugarman Rogers in
connection with this case served New Albertson[']s exclusively or
at all." Yet, the District Court went on to explain, "the Court
has no meaningful way of differentiating those entries to which
New Albertson[']s has already applied a discount from various
others on which it seeks to recoup 100 percent." New Albertson's
does not explain how such a determination represented an abuse of
the District Court's considerable discretion to determine fee
awards.
In addition, the District Court explained that it was
"not convinced that each [supermarket] party is so similarly
situated that this case falls into the 'multiple interrelated
claims' category." New Albertson's has not persuasively
explained, however, why the District Court was wrong on that score,
especially given the distinct facts and theories of liability that
corresponded to the various supermarket parties. For example, two
of the supermarket parties were sued as prior owners of the
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supermarket property during the 1970s through 1990s, whereas New
Albertson's stood in the shoes of a current owner and operator as
of the 2000s.
Finally, as for the arguments that New Albertson's makes
regarding the discount rate and keyword methodology, the District
Court explained that it adopted these methods because it determined
that New Albertson's had not put forth records that allowed for
better alternatives. And, we note, the District Court undertook
an exhaustive evaluation of each keyword proposed by both parties
in its second written decision on attorney's fees on March 10,
2017. Accordingly, we conclude that New Albertson's has not shown
that the District Court's fees award was an abuse of discretion.22
VII.
The contamination of Mother Brook precipitated an
extensive cleanup operation. So, too, did the litigation that
followed. We affirm the District Court's judgment in Nos. 16-
1133, 16-1134, 16-1189, 17-1360, and 17-1361. And we dismiss No.
16-1204 as moot.
22
New Albertson's also argues that it is entitled under § 15
to fees and costs related to this appeal. We deny its request
without prejudice to its filing an attorney's fee application in
accordance with our normal procedure set forth in Local Rule
39.1(b) of the First Circuit Court of Appeals.
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