Thomas & Betts Corporation v. Alfa Laval, Inc.

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

- 63 -
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

- 64 -
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

- 65 -
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,

- 66 -
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.

- 74 -
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.

- 75 -
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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