Cavallo v. Star Enterprise

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARDITH CAVALLO,
Plaintiff-Appellant,

and

LAWRENCE CAVALLO,
Plaintiff,
No. 95-2540
v.

STAR ENTERPRISE; TEXACO REFINING
AND MARKETING (EAST),
INCORPORATED; SAUDI REFINING, INC.,
Defendants-Appellees.

LAWRENCE CAVALLO,
Plaintiff-Appellant,

and

ARDITH CAVALLO,
Plaintiff,
No. 95-2541
v.

STAR ENTERPRISE; TEXACO REFINING
AND MARKETING (EAST),
INCORPORATED; SAUDI REFINING, INC.,
Defendants-Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge; Albert V. Bryan, Jr.,
Senior District Judge.
(CA-94-1499-A)

Argued: April 3, 1996
Decided: November 20, 1996

Before ERVIN, Circuit Judge, LAY, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit, sitting by
designation, and TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part and reversed and remanded in part by published
opinion. Judge Ervin wrote the opinion, in which Senior Judge Lay
and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Allen Huberth Sachsel, Fairfax, Virginia, for Appellants.
Richard Edward Wallace, Jr., HOWREY & SIMON, Washington,
D.C., for Appellees. ON BRIEF: Mark C. Hayes, LAW OFFICE OF
MARK C. HAYES, P.C., Alexandria, Virginia; Donnell R. Fullerton,
DONNELL R. FULLERTON, P.C., Fairfax, Virginia; John E. Drury,
LAW OFFICE OF JOHN E. DRURY, Washington, D.C., for Appel-
lants. Anthony F. King, Nancy C. Libin, HOWREY & SIMON,
Washington, D.C., for Appellees.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Ardith and Lawrence Cavallo sued Star Enterprise, 1 which operates
a petroleum distribution terminal located near their home, alleging
various damages from an underground petroleum release in 1990 and
a fuel spill in 1991. Their complaint included four causes of action:
Count I--"Negligence with Respect to AVJet Fuel Spill"; Count II--
_________________________________________________________________
1 Star Enterprise is a joint venture partnership between Texaco Refining
and Marketing (EAST), Inc., and Saudi Refining, Inc. We refer to the
defendants collectively as "Star."

2
"Negligent Petroleum Release and Negligent Abatement and
Remediation of the Petroleum Release"; Count III--"Common Law
Trespass"; and Count IV--"Liability Under the State Water Control
Law." The district court dismissed Counts II, III, and IV under Fed.
R. Civ. P. 12(b)(6), holding that they were barred by statutes of limi-
tation and federal preemption. After discovery, the court granted
Star's motion for summary judgment on Count I.

The Cavallos appeal. They contend that the district court applied
an incorrect statute of limitation, misconstrued federal preemption
doctrine, and erred in excluding the testimony of two of their experts.2
We agree with the Cavallos that the Complaint and the EPA Orders
provide insufficient information to determine whether their claims are
preempted. Thus we reverse the court's dismissal of Count II, that
portion of Count III containing the loss of use and enjoyment claim,
and Count IV and remand for further proceedings. We uphold the dis-
missal of that portion of Count III containing the personal injury
claim, however, even though the court rested its decision on preemp-
_________________________________________________________________
2 In addition to the questions they raise in their opening brief, the Cav-
allos add two new arguments in their Reply Brief: (1) that the statute of
limitation applicable to their trespass and statutory claims is five years
rather than two years, and (2) that "[t]he district court erred by failing to
convert Star's Rule 12(b)(6) motion into a motion for summary judgment
and by taking judicial notice of incomplete documents." The Cavallos
abandoned the statute of limitation issue at oral argument, stating that
they were not appealing it but might ask the district court to reconsider
the question if we remand. Also at oral argument, the Cavallos noted that
they had raised the conversion issue before the district court.

Under the decisions of this and the majority of circuits, an issue first
argued in a reply brief is not properly before a court of appeals. See Hunt
v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995) (citing United States v.
Caicedo-Llanos, 960 F.2d 158, 164 (D.C. Cir. 1992)), cert. denied, 116
S. Ct. 724 (1996); 9 James Wm. Moore, Moore's Federal Practice
¶ 228.02[2-3] (1995) ("The case law is to the effect that the appellant
cannot raise new issues in a reply brief . . . ."). That the question was
raised in the district court is immaterial. The Cavallos' omission of the
issue from their initial brief denied Star an opportunity to respond, so
considering it now "would be unfair to the appellee and would risk an
improvident or ill-advised opinion on the legal issues raised." Hunt, 57
F.3d at 1338.

3
tion, because it fails to state a claim under Virginia law. And we
affirm the court's summary judgment on Count I, finding that the dis-
trict court acted within its discretion by excluding the expert testi-
mony.

I

Star's distribution terminal ("the Tank Farm") is located in Fairfax,
Virginia, less than a mile west of the Cavallos' home. It includes
office and warehouse space, a truck loading rack, underground stor-
age tanks holding up to forty thousand gallons, and above-ground
storage tanks holding over seventeen million gallons. Drainage on the
site is controlled by a containment dike and an on-site pond--water
from the former is pumped into the latter--and the pond's contents
are treated and released into local creeks.

On September 14, 1990, Fairfax residents noticed an oil "sheen" on
the surface of Crook Branch Creek. Star soon acknowledged that a
large amount of aviation fuel, diesel fuel, and gasoline had leaked into
the soil and groundwater. Investigation by the Virginia State Water
Control Board revealed an underground "plume" of various fuels.
Thereafter, at the Board's request, the Environmental Protection
Agency ("EPA") assumed responsibility for the investigation pursuant
to the Resource Conservation and Recovery Act ("RCRA") § 7003,
42 U.S.C. § 6973. The EPA and Star negotiated an Administrative
Consent Order--subsequently superseded by an Administrative Order
--which required Star to implement corrective measures under EPA
supervision. In accordance with the Orders, the EPA assumed control
of Star's remediation efforts on July 3, 1991.

Another significant spill occurred on December 9, 1991. A valve
was left open, allegedly due to the negligence of one of Star's
employees or agents, and thirty-four thousand gallons of aviation fuel
were released. The spill, contained by the dike, remained on the Tank
Farm grounds for two weeks.

On the evening of the 1991 spill, the Cavallos were exposed to fuel
vapors in a parking lot about five hundred feet from the Tank Farm.
Both noticed an oil-like odor, and Mrs. Cavallo allegedly experienced
an immediate irritating reaction. She was treated by several doctors,

4
including Dr. Joseph Bellanti, Director of Allergy-Immunology at
Georgetown Medical Center. Dr. Bellanti testified that Mrs. Cavallo
suffered from sinusitis, conjunctivitis, and pulmonary dysfunction.
His testimony was complemented by that of Dr. David Monroe, a tox-
icologist, who reported that the exposure caused Mrs. Cavallo to
experience burning eyes, conjunctivitis, sinusitis, and throat irritation.
In addition to their exposure on the night of the 1991 spill, the Caval-
los claim that since that time they continually have been exposed in
their home to vapors from the Tank Farm. Mrs. Cavallo alleges that
she continues to suffer physical symptoms caused by her exposure to
the vapors, and both Cavallos claim damage to their property.

II

We review de novo the district court's summary judgments and
12(b)(6) dismissals. See, e.g., Schatz v. Rosenberg, 943 F.2d 485, 489
(4th Cir. 1991) (Rule 12(b)(6) dismissal), cert. denied sub nom.,
Schatz v. Weinberg and Green, 112 S. Ct. 1475 (1992); Goodman v.
RTC, 7 F.3d 1123, 1126 (4th Cir. 1993) (summary judgment). But the
parties disagree on the standard by which we review the district
court's decision to exclude expert testimony. The Cavallos argue,
quoting the Third Circuit's decision in In re Paoli R.R. Yard PCB
Litigation, that trial judges should not be given the same deference in
their decisions to exclude expert evidence as they are given in their
decisions about other types of evidence:

The decision to exclude expert testimony resulting in a sum-
mary judgment is subject to a "hard look" review by the
appeals court, i.e., a less deferential review than the tradi-
tional abuse of discretion standard in light of"a significant
risk that district judges will set the threshold too high and
will in fact force appellants to prove their case twice."

Brief of Appellants at 3 (quoting 35 F.3d 717, 733 (3d Cir. 1994)).
As the defendants point out, however, this court recently reached the
opposite conclusion. In Benedi v. McNeil-P.P.C., Inc., a Fourth Cir-
cuit panel stated that "Daubert [v. Merrell Dow Pharmaceuticals,
Inc.,] clearly vests the district courts with discretion to determine the
admissibility of expert testimony." 66 F.3d 1378, 1384 (4th Cir. 1995)

5
(citing 113 S. Ct. 2786 (1993)). Accordingly, we review the district
court's decision only for abuse of discretion.

III

A

The district court dismissed Count III which contained both a per-
sonal injury claim by Mrs. Cavallo and a claim for the loss of the use
and enjoyment of the Cavallo's real property resulting from exposure
to vapors under the federal preemption doctrine. See complaint Para.
79. In addition to defending the court's preemption analysis, Star
offers an alternative ground for upholding the district court's dis-
missal. Under Virginia law, it argues, the Cavallos must show physi-
cal impact on their property, and "wafting vapors. . . [are] insufficient
as a matter of law." To support its position, Star cites another Fourth
Circuit case involving the Tank Farm--Adams v. Star Enterprise, 51
F.3d 417, 422-25 (4th Cir. 1995).

The Adams plaintiffs, a group of landowners, sued for diminution
of their property values and for health risks allegedly caused by their
subdivision's proximity to an underground "plume" of petroleum
products leaked from the Tank Farm. The landowners did not claim
that the plume actually contaminated their soil, nor that they detected
vapors from the leak on their property. The harm they alleged con-
sisted of a stigma attached to their subdivision and a "fear of being
exposed to toxic materials." Id. at 422 & n.5. The court held that the
landowners' claims could not proceed, because Virginia law allowed
recovery only if "the activity or condition complained of was actually
physically perceptible from the plaintiff[s'] property." Id. at 422-23
(emphasis added).

Star argues that "wafting vapors" are not"physically perceptible"
under Adams. We disagree. The context for the Adams court's focus
on physical perception was its discussion of Foley v. Harris, in which
the Virginia Supreme Court allowed recovery against a defendant
whose wrecked cars were visible from the plaintiffs' property. 286
S.E.2d 186, 190-91 (Va. 1982). The Adams court distinguished Foley
because the Foley plaintiffs, unlike those in Adams, could sense the
source of the offense from their own property. Adams, 51 F.3d at 422-

6
23. Smell, like sight, certainly constitutes physical perception. And,
although the Cavallos do not allege that they smelled the vapors, the
physical symptoms Mrs. Cavallo suffered also might suffice. We con-
clude, based upon Adams, that the portion of Count III relating to the
loss of use and enjoyment claim may be cognizable under Virginia
law and that it was error to dismiss it under Fed. R. Civ. P. 12 (b)(6)
upon the alternative ground suggested by Star. Since the damage
alleged in Adams was based simply upon a fear of future events and
these allegations are much more direct, we hold that they are suffi-
cient to sustain the loss of use and enjoyment portion of Count III
under Virginia law.

We reach a different result, however, with reference to that portion
of Count III asserting a personal injury claim by Mrs. Cavallo. The
Virginia Supreme Court stated in Foley that"[t]he discomfort and
annoyance [complained of] must . . . be significant and of a kind that
would be suffered by a normal person in the community." Foley, 286
S.E.2d at 190, 191 (emphasis added). Mrs. Cavallo is not such a per-
son; in fact, she alleges specifically that she is"highly susceptible" to
petroleum vapors. Complaint ¶ 50. Hence, the personal injury portion
of Count III is not cognizable under Virginia law and was properly
dismissed.

B

An agreement between the parties treats all the Cavallos' claims as
filed on December 8, 1993. The district court ruled that all counts but
Count I are necessarily barred by the interaction of the statutes of lim-
itation and federal preemption, because: (1) the counts involve
remediation efforts at the Tank Farm, (2) the statutes of limitation bar
all claims based on events occurring before December 8, 1991, and
(3) preemption bars all claims based on events occurring after Sep-
tember 1991, when the EPA took control of remediation efforts.
Because we affirm on other grounds the district court's dismissal of
the physical injury claim in Count III, supra part III.A, we limit our
preemption analysis to Count II, the portion of Count III containing
the loss of use and enjoyment claim, and Count IV only.

This court summarized the law of preemption in Worm v. American
Cyanamid Co.:

7
The principles of preemption resolve conflicts between
federal and state law on the authority of Article VI of the
Constitution, which provides:

This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof
. . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.

U.S. Const. Art. VI, § 2. From this Supremacy Clause flows
the well-established principle that federal legislation, if
enacted pursuant to the Congress' constitutionally delegated
authority, can nullify conflicting state or local actions. See,
e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6
L.Ed. 23 (1824).

Preemption may occur on two bases, the first of which
turns on discovering the intent of Congress. Congress may
expressly provide that federal law supplants state authority
in a particular field or its intent to do so may be inferred
from its regulating so pervasively in the field as not to leave
sufficient vacancy within which any state can act. See, e.g.,
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.
1146, 1152, 91 L.Ed. 1447 (1947). But even absent an
express or implied congressional intent to preempt state
authority in a field, state law is nevertheless preempted by
operation of law to the extent that it actually conflicts with
federal law. See Wisconsin Public Intervenor v. Mortier,
___ U.S. ___, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532
(1991); Pacific Gas & Elec. Co. v. State Energy Resources
Conserv. & Dev. Comm'n, 461 U.S. 190, 204, 103 S.Ct.
1713, 1722, 75 L.Ed.2d 752 (1983).

. . . When we address the question of whether state law
actually conflicts with federal law, we resolve the more spe-
cific inquiries of whether "it is impossible to comply with
both state and federal law" or "whether the state law stands
as an obstacle to the accomplishment of the full purposes

8
 and objectives" of federal law. See Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d
443 (1984).

With these principles stated, we proceed to an examina-
tion of [the statute in question], first to determine if Con-
gress intended by its enactment to supplant state authority
in the field, and if not, whether state tort and warranty law
conflicts with the federal regulatory scheme.

970 F.2d 1301, 1304-05 (4th Cir. 1992).

Two years after Worm, in Feikema v. Texaco, Inc., 16 F.3d 1408
(4th Cir. 1994), this court addressed whether state-court relief would
conflict with an EPA Consent Order. The Feikema plaintiffs sought
damages and an injunction requiring

excavation, treatment and replacement of contaminated soil
to a specified depth and over a specified area; . . . "enhanced
ground water extraction and bio-remediation to reduce the
off-site contamination"; and . . . construction of a "free
phase hydrocarbon trench removal system across the water
table."

Id. at 1416. Because the EPA Order in Feikema focused on a particu-
lar incident, and thus was not intended to supplant state authority in
the entire field, the court applied only the second, actual-conflict
prong of the Worm inquiry:

[W]hen the EPA, acting within valid statutory authority of
the RCRA and not arbitrarily, enters into a consent order,
that order will also preempt conflicting state regulation,
including a federal court order based on state common law.
...

. . . [T]he test for determining whether state law conflicts
with federal law is whether "it is impossible to comply with
both state and federal law" or whether "the state law stands
as an obstacle to the accomplishment of the full purposes
and objectives" of federal law.

9
Feikema, 16 F.3d at 1416 (quoting Worm , 970 F.2d at 1305) (empha-
sis added) (other citations omitted). Noting that the Consent Order
"addresse[d] the same site and conditions covered by the homeown-
ers' suit," the Feikema court determined that an injunction would con-
flict with the EPA's activities and thus was preempted. Id.

Regarding the damages claims, the Feikema court expressed
greater reluctance to preempt state law. It quoted the Supreme Court's
opinion in Nader v. Allegheny Airlines, Inc.:

A common-law right, even absent a saving clause, is not to
be abrogated "unless it be found that the preexisting right is
so repugnant to the statute that the survival of such right
would in effect deprive the subsequent statute of its effi-
cacy; in other words, render its provisions nugatory."

426 U.S. 290, 298 (1976) (quoting Texas & Pacific R. Co. v. Abilene
Cotton Oil Co., 204 U.S. 426, 437 (1907)), quoted in Feikema, 16
F.3d at 1413. Moreover, the Feikema court found indications in
RCRA's legislative history that some state causes of action should be
permitted: "[W]hile Congress intended for the EPA to have broad
authority to act in an imminent hazard situation, it also intended such
action to complement other efforts and remedies." Feikema, 16 F.3d
at 1415 (citing Report of the Committee on Environment and Public
Works, S. Rep. No. 98-284, 98th Cong., 1st Sess. 56 (1983)). Because
the Consent Order did not provide for damages payments to home-
owners, the court found, awarding damages to the plaintiffs would not
conflict with the Consent Order. Consequently, it allowed the dam-
ages claims to proceed. Id. at 1417-18.

Judge Murnaghan wrote separately in Feikema to emphasize that
the court was not applying a different standard to damages than to
equitable relief. Id. at 1418 (Murnaghan, J., concurring). He stressed
that, whatever the relief sought, a "claim is preempted only to the
extent that it may actually conflict with the EPA's Consent Order and
only while that Order remains in effect." Id. (Murnaghan, J., concur-
ring). In Feikema, he wrote, preemption applied to the injunction
claim but not the damages claims because, on the particular facts of
the case, an injunction would conflict with the Consent Order but a
damages award would not. Id. (Murnaghan, J., concurring).

10
The EPA Orders in this case, like those in Feikema, do not contem-
plate compensation for damages to private parties. Thus the Cavallos
contend that the damages they seek, like the award sought in
Feikema, would not conflict with the EPA Orders. The district court
disagreed with the Cavallos, relying on Judge Murnaghan's concur-
rence, and held that the Orders preempted any damages claims based
on remediation efforts within the scope of the Orders:

[D]amages claims are preempted insofar as they arise from
remediation efforts under the scope of the EPA Orders. The
damages sought here distinguish the case from those dam-
ages which were allowed in Feikema. Damage liability for
activities in conformity with the EPA Orders conflicts with
the federal interest as effectively as an injunction.

Memorandum Opinion and Order at 5, in Joint Appendix at 197 (cit-
ing 16 F.3d 1408, 1418 (4th Cir. 1994) (Murnaghan, J., concurring)).

The district court used the correct "conflict" test, and we agree that
Star cannot be held liable "for activities in conformity with the EPA
Orders." But that does not end the inquiry, as the district court
appears to have assumed. Although all of Star's allegedly tortious acts
occurred after the EPA took control of remediation, the EPA Orders
encompassed only remediation efforts, and all of Star's activities at
the Tank Farm did not involve remediation. Moreover, even EPA-
directed remediation efforts might be actionable if improperly per-
formed. To determine whether damages would conflict with the EPA
Orders, then, we must look beyond the temporal scope of the Orders
and the scope of the activities they encompassed. Damages claims
conflict with EPA Orders only if the allegedly tortious activities (1)
were required, directed, or supervised by the EPA, and (2) were per-
formed properly.

In Count II, the Cavallos allege "negligence, carelessness and reck-
lessness" by Star in:

a. Improperly operating, supervising, and/or managing the
[Tank Farm] Facility;

11
 b. Improperly designing, installing and repairing and
updating of the Facility;

c. Failure to properly test and inspect Facility equipment;

d. Failure to properly and promptly notify Plaintiff and
Mantua residents of the Petroleum releases at the Facili-
ty[;]

e. Failure to properly and promptly remediate[sic] and
recover/remove the Petroleum Releases[;] and

f. Failure to properly mitigate venting of storage tanks.

Complaint ¶ 72, in Joint Appendix at 38. Count IV is based in part
on the December 1991 spill, and in part on Star's regular venting of
its tanks. Complaint ¶¶ 86-87, in Joint Appendix at 21.

To the extent they occurred after December 8, 1991, 3 incidents of
improper operation, supervision, management, design, installation,
repair, and updating of the Tank Farm or its equipment may be
actionable if not compelled by the EPA Orders. Likewise, failure by
Star to notify the Cavallos of petroleum releases may support their
claims if the releases or failures to notify were not authorized or
approved by the EPA. For example, the Complaint indicates that the
December 10, 1991, AVJet spill was a mistake--not contemplated by
EPA Orders or officials--and alleges that Star waited eight days
before notifying the EPA. Complaint ¶¶ 26-43, in Joint Appendix at
28-31. Damages caused by that spill, or by Star's failure to notify the
Cavallos during the period before it notified the EPA, thus are not
preempted by the EPA Orders.

The EPA Orders did encompass all of Star's remediation efforts,
so failures "to properly and promptly remediate and recover/remove
the Petroleum Releases" are likely to be preempted. Similarly, the
Cavallos allege that venting was "regularly performed," apparently
_________________________________________________________________
3 The district court held that claims based on events before December
8, 1991, are barred by the statute of limitations, see supra part III.B, and
the Cavallos do not appeal that ruling, see supra n.2.

12
under EPA supervision, so claims of improper venting probably are
preempted. Even remediation and venting, however, are actionable if
Star tortiously failed to notify the EPA of the releases--a jury might
find, for instance, that the delay after the December 1991 spill was
negligent--or if Star improperly implemented EPA instructions.

In sum, the fact that allegedly tortious conduct occurred within the
temporal and subject-matter scope of an EPA Order does not neces-
sarily compel preemption of a damages claim based on that conduct.
We cannot conclusively determine, from the face of the Complaint
and the text of the EPA Orders, that the Orders or EPA instructions
pursuant to the Orders compelled all of Star's allegedly improper
activities and its manner of performing them. Thus we cannot deter-
mine whether damages based on those activities would conflict with
EPA authority, or, in turn, whether the preemption doctrine applies.

C

The Cavallos assert that, because their claims are grounded in Vir-
ginia state law and originally were filed in Virginia state court, the
admissibility of expert testimony should be governed by Virginia law.
As Star points out, however, this court held expressly in Scott v.
Sears, Roebuck & Co. that federal rules apply to the admission of
expert testimony in diversity cases:

Unlike evidentiary rules concerning burdens of proof or pre-
sumptions, the admissibility of expert testimony in federal
court sitting in the diversity jurisdiction is controlled by fed-
eral law. State law, whatever it may be, is irrelevant.

789 F.2d 1052, 1054 (4th Cir. 1986). But the Cavallos respond that
Daubert, which was decided seven years after Scott, implemented a
heightened burden of proof--"established toxicological methodol-
ogy" instead of "greater weight of all the evidence." Because Scott
specifically excepted burdens of proof, they contend, the rule it estab-
lished is invalid after Daubert and Virginia law should apply. Their
argument is meritless. A standard for admission of testimony, how-
ever stringent, is not a burden of proof. Daubert governs whether evi-
dence is admitted, not how persuasive it must be to the factfinder.
Consequently, Scott remains good law even after Daubert, and the

13
district court correctly applied federal law in determining whether to
admit the experts' testimony.

On the merits of the expert-testimony question, the Cavallos' brief
succinctly stated the essence of their position:

The trial court concluded that neither Dr. Bellanti nor Dr.
Monroe strictly adhered to the established toxicological
methodology in forming their conclusions that Ms. Caval-
lo's exposure to AVJet vapors from the December 1991
spill caused her various chronic illness[es], and that their
testimony, therefore[,] is not supported by appropriate vali-
dation as required by Daubert v. Merrell Dow. 113 S.Ct. at
2795.

Cavallos' Brief at 17 (citation to Joint Appendix omitted).

The parties agree that Daubert is the leading case on this issue. But
neither party emphasizes that the Supreme Court itself viewed
Daubert as a liberalization, not a tightening, of the rules controlling
admission of expert testimony. The Court recognized that the question
had been governed for seventy years by the standard first set out by
the D.C. Circuit in Frye v. United States--that scientific expert testi-
mony must be based on principles that are "sufficiently established to
have gained general acceptance in the particular field in which [they]
belong[ ]." 293 F. 1013, 1014 (D.C. Cir. 1923) (emphasis added). It
held, however, that the Frye test had been superseded by Fed. R.
Evid. 702.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training or education, may tes-
tify thereto in the form of an opinion or otherwise.

The Daubert Court noted that Rule 702 does not mention Frye's
"general acceptance" test. Moreover, it stated:

14
 A rigid "general acceptance" requirement would be at odds
with the "liberal thrust" of the Federal Rules and their "gen-
eral approach of relaxing the traditional barriers to `opinion'
testimony." Beech Aircraft Corp. v. Rainey , 488 U.S. [153,]
169 (1988). . . . That austere standard, absent from and
incompatible with the Federal Rules of Evidence, should not
be applied in federal trials.

113 S. Ct. at 2794 (emphasis added) (citations to nonquoted sources
omitted).

The Daubert Court held that two questions control admission of
scientific expert testimony: "whether the reasoning or methodology
underlying the testimony is scientifically valid and. . . whether that
reasoning or methodology properly can be applied to the facts in
issue." Id. at 2796. In lieu of the Frye test, it decided, the validity of
the methodology or reasoning is determined using a flexible inquiry
based on five factors: (1) whether the testimony has been tested, (2)
whether it has been published or exposed to peer review, (3) its rate
of error, (4) whether there are standards and controls over its imple-
mentation, and (5) whether it is generally accepted. Id. at 2796-97. If
valid, the Court wrote, whether the testimony can"properly be
applied to the facts in issue" is determined by reference to other rules
of evidence, id. at 2797, such as the relevance and prejudice provi-
sions of Rule 401, id. at 2794, and Rule 403, id. at 2798.

The Daubert Court concluded by reemphasizing that scientific evi-
dence is to be admitted more liberally under Rule 702 than it was
under Frye, and that exclusion is the least favored means of rendering
questionable scientific evidence ineffective:

Vigorous cross-examination, presentation of contrary evi-
dence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence. Additionally, in the event the trial
court concludes that the scintilla of evidence presented sup-
porting a position is insufficient to allow a reasonable juror
to conclude that the position more likely than not is true, the
court remains free to direct a judgment, and likewise to
grant summary judgment. These conventional devices,

15
 rather than wholesale exclusion under an uncompromising
"general acceptance" test, are the appropriate safeguards
where the basis of scientific testimony meets the standards
of Rule 702.

Id. at 2798 (citations omitted).

In the instant case, the district court concluded that the bases of the
doctors' opinions were not sufficiently established to warrant their
admission into evidence:

In sum, neither Dr. Monroe nor Dr. Bellanti sufficiently
adhered to the established toxicology methodology in form-
ing [his] conclusions that Ms. Cavallo's exposure to AVJet
vapors from the December 1991 spill caused her various
chronic illnesses. Their testimony, therefore[,] is not "sup-
ported by appropriate validation" as required by Daubert,
and is ultimately unreliable. In the final analysis, the opin-
ions of Drs. Monroe and Bellanti are based largely on
hypothesis and speculation. This is not to say that the doc-
tors are insincere in their opinions, or that their opinions
may not some day be validated through scientific research
and experiment. It may well be that the AVJet spill forever
"sensitized" Ms. Cavallo to petroleum vapors and various
other household chemicals. But the published scientific liter-
ature and test results simply do not support that conclusion
at this time. And the price paid for this seemingly stringent
standard of reliability is that, unavoidably, some legitimate
injuries will be left unredressed.

Memorandum Opinion at 39-40, in Joint Appendix at 1799-800 (foot-
notes omitted).

The district court's interpretation is restrictive in this case, but it is
not inconsistent with Daubert. Although Daubert eliminated the
requirement of general acceptance, the five factors it established still
require that the methodology and reasoning used by a witness have
a significant place in the discourse of experts in the field. The district
court determined that the testimony of Dr. Bellanti and Dr. Monroe
did not have such a place. By making that determination, the court

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properly exercised its discretion. The Cavallos have shown that the
question of admission is close, but we defer to the court's decision to
exclude the evidence and affirm its summary judgment on Count I.

IV

The face of the Complaint and the text of the EPA Orders are
insufficient to determine whether EPA involvement preempts Count
II, the loss and use and enjoyment claim of Count III, and Count IV.
Whatever the preemption doctrine's effect, however, the personal
injury claim of Count III does not state a claim under Virginia law.
Moreover, the district court acted within its discretion by excluding
testimony by the Cavallos' experts. Accordingly, we affirm the dis-
trict court's summary judgment on Count I and its dismissal of the
personal injury claim of Count III, but we reverse its dismissal of
Count II, the loss of use and enjoyment claim of Count III, and Count
IV and remand them for further proceedings.

AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART

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