UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1285
MARTHA C. MILLER; JEFFREY M. MILLER,
Plaintiffs - Appellants,
and
AMANDA MILLER; BRENDA MILLER; JUAN DAVID MILLER,
Plaintiffs,
v.
MANDRIN HOMES, LIMITED; EDWARD C. KENNEDY; JAMES MANDRIN;
CHAMPION REALTY, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:05-cv-03025-CCB)
Argued: September 24, 2008 Decided: January 8, 2009
Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and James C. CACHERIS, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Mitchell Jay Rotbert, THE ROTBERT LAW GROUP, L.L.C., Bethesda,
Maryland, for Appellants. Steven Ellis Leder, LEDER LAW GROUP,
L.L.C., Baltimore, Maryland; Barbara Johnson Palmer, BLUMENTHAL,
DELAVAN & WILLIAMS, P.A., Annapolis, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants Martha Miller and Jeffrey Miller (“the
Millers”) brought suit against Appellees after the Millers
purchased a house and lot that they claim were contaminated by
toxic substances. 1 The District Court for the District of
Maryland (the “district court”) granted summary judgment in
favor of the Appellees. Because the Millers failed to provide
more than speculative evidence regarding the contamination of
their home, we affirm.
I.
In January 2003, the Millers bought a tract of land in
Centreville, Maryland from Appellee Mandrin Homes, Ltd.
(“Mandrin”), and entered into a contract of sale for a house to
be built on the land. They claim that the lot was previously
part of a solid and hazardous waste dump; that Mandrin and other
Appellees knew or should have known this; and that by grading
the land and disturbing its groundwater, Mandrin and other
Appellees caused the release of hazardous substances onto the
1
The Millers originally filed suit on behalf of their minor
children as well. On February 22, 2007, the district court
granted the Millers’ motion to dismiss the claims of their minor
children without prejudice.
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land. Appellee Champion Realty, Inc. served as the Millers’
agent in the purchase. The Millers took possession of the house
in late January 2003 and vacated it in November of the same
year. They claimed that after moving in, they noticed an
offensive odor coming from the basement and experienced
respiratory, digestive, and other physical ailments. The
Millers also discovered a punctured pipe in their basement,
which was corrected by Mandrin, and claimed to notice structural
defects and mold growth in the house.
Between May 2002 and May 2003, thirteen environmental
and structural inspections were completed on the house at the
instigation of the Millers, Mandrin, and the Millers’ home
insurance carrier. The test results were mixed. Several tests
found no problems; indeed, one reported that the air in the
house was cleaner than the air outside. Another test
recommended the sanitation of the carpets and HVAC system in the
house, and noted that the illnesses reported by the family had
the characteristics of allergenic reactions to mold, mildew, and
bacteria.
The Millers claimed that laboratory tests and
groundwater analyses showed the presence of volatile organic
substances (“VOCs”) in their sump water. They hired a
hydrologist, Dr. Lorne Everett (“Dr. Everett”), to interpret the
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test results. Dr. Everett, who never visited the house,
analyzed the studies and tests performed by third parties as
well as aerial photographs of the house and surrounding area.
He opined that the photos revealed significant land disturbances
between 1952 and 1957 in the surrounding area “consistent with”
a dump or landfill. He stated that “the detection of volatile
organic compounds (VOCs) and the semivolatile compound, phenol,
in water from the sump at [the property] is indicative of
groundwater contamination under the property.” Dr. Everett also
provided a “Rebuttal Affidavit” in response to an affidavit
submitted by the Appellees’ expert, Dr. Jack Snyder.
Dr. Snyder’s affidavit stated that all the chemicals
detected in the Millers’ house were common substances “found
around the average household and in sources other than
contaminated groundwater.” He also testified that the chemical
concentrations found in the sump water would not pose a health
risk even if the sump water was ingested and that “the presence
of a contaminant in sump water at the concentrations indicated
does not establish either the origin of the contaminant or that
the residents of the house were exposed to the contaminant.”
In November 2005, the Millers filed a Complaint
alleging violations of the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et
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seq., and making state law claims under Maryland law for breach
of implied warranties, unfair competition and deceptive acts
under Maryland Commercial Law, deceit, and negligent
misrepresentation. The district court granted summary judgment
in favor of the Appellees after ruling that the Millers did not
present evidence showing a triable issue of fact as to
contamination. This appeal followed.
II.
We review de novo the district court’s grant of
summary judgment under Federal Rule of Civil Procedure 56.
Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591
(4th Cir. 2004). We consider the record de novo and address
properly-preserved arguments raised by the appellant, as well as
properly-preserved alternative bases for affirmance, to
determine whether the evidence shows a genuine issue of material
fact that requires a trial. Beverati v. Smith, 120 F.3d 500,
503 (4th Cir. 1997). This court applies “the same legal
standards as the district court and view[s] the facts and
inferences drawn therefrom in the light most favorable to the
non-moving party.” Motor Club of America Ins. Co. v. Hanifi,
145 F.3d 170, 177 (4th Cir. 1998).
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III.
The Millers acknowledge that all of the counts in
their Complaint rest on the CERCLA claim stated in Count I. If
the district court correctly found that no genuine issue of
material fact existed as to the CERCLA claim, then it properly
granted summary judgment on all counts in the Millers’
Complaint. To prevail on a CERCLA claim, a plaintiff must show,
among other elements, that a “release” or “threatened release”
of a “hazardous substance” has occurred. 42 U.S.C. § 9067; see
Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409,
414 (4th Cir. 1999); United States v. Md. Bank & Trust Co., 632
F. Supp. 573, 576 (D. Md. 1986). All of the Millers’ legal
theories rely on the contamination of their home by toxic
substances. Thus, their case hinges on the evidence of
contamination they put forward, namely the October 2006
Declaration and the December 2006 Rebuttal Affidavit of Dr.
Everett. They argue that these two documents show a genuine
issue of material fact. The district court disagreed, holding
that, to the contrary, Dr. Everett’s testimony was insufficient
to establish a prima facie case.
The Millers claim that the district court wrongfully
disregarded Dr. Everett’s testimony as speculative. Under
Daubert v. Merrell Dow Pharmaceuticals, they contend, the court
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should have scrutinized the methods and principles employed by
their expert witness rather than his conclusions. 509 U.S. 579,
589 (1993). They are correct, of course, that a trial court
must decide whether an expert’s testimony is admissible under
Daubert. 2 The analysis, however, does not end there. Even if
expert testimony meets the Daubert admissibility standards, the
question remains whether the evidence creates a genuine issue of
material fact, i.e., one that would allow the jury to find for
the non-moving party on an essential element of the claim. If
no genuine issue of fact exists, summary judgment is
appropriate.
2
Federal Rule of Evidence 702 governs the use of expert
testimony:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Daubert requires a two-part analysis to determine whether
proposed expert testimony is admissible. First, the court must
determine whether the expert’s testimony is grounded in the
scientific method and reflects scientific knowledge. Daubert,
509 U.S. at 590, 593. Second, the court must determine whether
the evidence proffered is relevant. Id. at 597.
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In Daubert, the Court explained that when a trial
judge “concludes that the scintilla of evidence presented
supporting a position is insufficient to allow a reasonable
juror to conclude that the position more likely than not is
true,” the judge “remains free . . . to grant summary judgment.”
509 U.S. at 596. A fair reading of the district court’s opinion
shows that the court had doubts about the admissibility of some
or all of Dr. Everett’s testimony, but also that it considered
his testimony, taken at face value, insufficient to create a
triable issue of fact. The court reviewed Dr. Everett’s
statements and found that a reasonable jury could not logically
base a verdict for the Millers on his testimony. We agree that
the opinions of Dr. Everett are not sufficient to allow a
reasonable juror to find for the Millers.
In the Fourth Circuit, proof of a necessary element
offered to escape summary judgment “must be such as to suggest
probability rather than mere possibility, precisely to guard
against raw speculation by the fact-finder.” Sakaria v. Trans
World Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993) (citations
and internal quotations omitted); see also Textron Inc. ex rel.
Homelite Div. v. Barber-Colman Co., 903 F. Supp. 1558, 1565
(W.D. N.C. 1995).
The Millers claim that Dr. Everett’s expert
conclusions, when viewed in the light most favorable to them,
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would allow a reasonable juror to infer that groundwater
contamination existed on the lot when it was owned by Mandrin,
and that the contamination was a result of leachate from a
nearby landfill. Dr. Everett’s testimony, though, was
speculative as to the presence of a landfill and as to the
existence of contamination. In his opinion, “the detection of
volatile organic compounds (VOCs) and the semivolatile compound,
phenol, in water from the sump at 127 Cypress Street is
indicative of groundwater contamination under the property.”
According to Dr. Everett, who studied the reports of others but
did not personally visit the property, this contamination
occurred via leaching from a dump or a landfill, the presence of
which is indicated by aerial photographs that show an “observed
pattern of land disturbance . . . consistent with a dump or a
landfill.” Likewise, he stated in his affidavit that “the
occurrence of [chlorinated VOCs and phenolic compounds] is
consistent with contamination migrating in groundwater from a
landfill source.”
Such claims, even if they would be admissible under
Daubert, indicate no more than a mere possibility that the
Millers’ theory of contamination is true. The closest Dr.
Everett’s affidavit comes to stating an opinion in a manner that
would allow a reasonable jury to find for the Millers by a
preponderance of the evidence is his statement that the
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detection of VOCs “is indicative” of groundwater contamination.
This phrase, however, does not show that Dr. Everett believed
there actually was groundwater contamination or, more to the
point, that he could testify that it was his scientific opinion
that groundwater contamination existed. Dr. Everett stated his
opinion in a passive manner that suggests his finding falls in
the realm of the possible rather than the probable. He stated
that one fact – the detection of VOCs – is indicative of the
existence of a second, required fact – groundwater
contamination. The testimony provides no yardstick by which to
measure the strength of this claim. The detection of VOCs could
be “indicative” of any number of things, including other sources
of contamination. Indeed, other evidence in the record states
unequivocally that all of the chemicals detected in the Miller’s
house also can be found around the average household. Dr.
Everett’s testimony would not allow a jury to find groundwater
contamination by a preponderance of the evidence.
Moreover, none of the other links in the chain of
inferences supporting the Millers’ landfill leachate theory was
stated as anything more than a scientific possibility. The
Millers also produced no evidence of medical causation; Dr.
Everett is not a medical doctor and thus did not posit his
expert opinion as to the causation of the Millers’ claimed
injuries. In short, the Millers have suggested only
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possibility, rather than probability, on an element essential to
their claims. The district court properly granted summary
judgment.
IV.
For the foregoing reasons, the district court’s
judgment is
AFFIRMED.
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