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Admissibility Rate: .667    (4/6)

Gussack Realty Co. v. Xerox Corp., 224 F.3d 85 (2d Cir. 2000).  Realty company sues Xerox alleging Xerox disposed of solvents improperly, contaminating realty company's upstream land.  Xerox drills test wells on realty company property and determines based on tests that water meets New York safe drinking water standards.  Realty company offers testimony from three expert hydrologists [?] who have consulted data collected by Xerox and opine that Xerox did contaminate realty company's land.  Xerox protests vigorously, because land is upstream, but realty company experts explain that subsurface geological features could cause groundwater to flow in different directions from surface water.  Admissibility affirmed.  Experts need not conduct own tests but may rely on data collected by others.  Xerox complains that experts disregarded alternative causes of contamination -- i.e., realty company's use of solvents on its own property.  But plaintiff's experts were not attempting to account for otherwise inexplicable presence of solvents on realty company's property.  Rather, they provided theories showing how it was possible for water to flow from Xerox's property to realty company's.

St. Martin v. Mobil Exploration & Producing U.S., Inc., 224 F.3d 402 (5th Cir. 2000).  Did oil companies' failure to maintain canal's spoil banks cause damage to vegetative mats in marshes on plaintiffs' land?  Landowners offer testimony from ecologist.  Admissibility affirmed.  Oil companies say only qualified hydrologist could opine on relevant issues.  But expert is experienced specialist in marshland ecology, and on vegetative mats in particular, and paid numerous visits to affected properties.  Oil companies also fault expert for not having published article re work in this case, but each marsh is different, and no expert could publish on each possible permutation of relevant factors, or on every marsh.

Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002) (see the briefs).  Water supply for Elkhart, Indiana, is contaminated by TCE and other volatile organic compounds.  After cleanup, EPA sues Dura for cleanup costs.  Dura sues CTS for contribution, alleging that CTS is partially responsible for contamination.  This could be so only if CTS's plastics plant was within city well field's "capture zone" (i.e., catchment basin) during operations twenty years ago.  Dura's sole expert is hydrogeologist Nicholas Valkenburg.  Valkenburg testifies in reliance on computer modeling performed by other personnel at his firm, and admits he is not himself expert in such modeling.  CTS moves to exclude Valkenburg's testimony and for summary judgment.  Dura responds with four affidavits from persons who performed computer modeling for Valkenburg, all of whom testify that such techniques are reliable.  CTS moves to strike affidavits as untimely expert designations.  Judge grants motion to strike, then holds Valkenburg's testimony inadmissible for want of evidence of reliability, then grants summary judgment.  Exclusion affirmed.  Dura says that even if affiants' own testimony could not be offered at trial, affidavits should have been considered to evaluate reliability of Valkenburg's testimony.  However, ultimate issue was validity of computer models, and Valkenburg's testimony on that point would have been exercise in ventriloquism.

NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776 (7th Cir. 2000).  Food manufacturer sues neighboring machine shop for dumping hazardous wastes that migrated to food manufacturer's site.  Food manufacturer offers hydrologist [?] to testify to source of wastes.  Admissibility affirmed.  Hydrologist could rely in part on aerial photographs to confirm his hypothesis re history of dumping.  Use of aerial photographs is generally accepted in field, and expert had twenty years of experience interpreting them.  Defendant also argues that hydrologist lacked direct knowledge of wastes' source, but as expert witness, hydrologist was not required to have personal knowledge, but could reach conclusions on source of waste based on chromatography and groundwater migration test results.

United States v. Dico, Inc., 266 F.3d 864 (8th Cir. 2001), cert. denied, 535 U.S. 1095 (2002).  Des Moines groundwater is contaminated with trichloroethylene (TCE).  United States sues polluting corporation under CERCLA to recoup costs of cleanup.  Company defends by arguing that other polluters are source of TCE.  District court hears testimony from government's hydrogeologist in bench trial and finds corporation liable.  Admissibility affirmed.  Defendant says expert ignored other sources of TCE in running his computer model, but computer model was not basis for expert's opinion on source of TCE, and in any event expert considered each piece of data that defendant says he ignored.  Defendant also says expert relied on insufficient sampling to support his theory, but expert used samples only to confirm conclusions independently formed.  Moreover, factual basis for expert opinion goes to credibility, not admissibility.  

Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706 (8th Cir. 2001).  Some 3000 tons of bailor's steel are damaged in bailee's warehouse during flood.  Court admits testimony from bailor's hydrologist concerning inadequacy of bailee's warehousing practices.  Admissibility reversed.  Hydrologist was qualified to testify about flood risk management but had no apparent training or experience in warehousing issues.

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