National Telephone Cooperative Ass'n v. Exxon Mobil Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2001 Decided April 3, 2001

No. 99-7124

National Telephone Cooperative Association,
Appellee

v.

Exxon Mobil Corporation, A New Jersey Corporation,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 96cv02504)

Arthur H. Jones, Jr. argued the cause for appellant. With
him on the briefs were Robert T. Lehman, Cynthia J. Morris,
and Heather E. Gange.

Donald B. Mitchell, Jr. argued the cause for appellee.
With him on the brief was James H. Hulme.

 Before: Edwards, Chief Judge, Ginsburg, and Randolph,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The plaintiff in this case won a
jury verdict and judgment on the theory that the defendant
negligently performed an environmental remediation; the cen-
tral question before us is whether the plaintiff at trial estab-
lished the standard of care, which is necessary to support the
judgment in its favor. Under the law of the District of
Columbia, if the applicable standard of care in a negligence
action is "beyond the ken of the average layperson," then the
plaintiff must establish that standard through the testimony
of an expert. District of Columbia v. Arnold & Porter, 756
A.2d 427, 433 (2000) (quoting Messina v. District of Colum-
bia, 663 A.2d 535, 538 (D.C. 1995)). Specifically,

the expert must clearly articulate and [refer to] a stan-
dard of care by which the defendant's actions can be
measured .... Thus the expert must clearly relate the
standard of care to the practices in fact generally fol-
lowed by [similarly situated parties] or to some standard
nationally recognized by such [parties].

Id. (quoting Phillips v. District of Columbia, 714 A.2d 768,
773 (D.C. 1998)). To similar effect, "[t]he personal opinion of
the testifying expert as to what he or she would do in a
particular case, without reference to a standard of care, is
insufficient to prove the applicable standard of care." Tra-
vers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996).

No one doubts that the standard of care in this case is
beyond the ken of the average layperson. In mounting its
case, therefore, the plaintiff introduced expert testimony; but
its expert described the standard of care with respect only to
an ultimate goal that the defendant failed to meet, not with
respect to any "practices in fact generally followed" or "to
some standard [that is] nationally recognized" from which the
defendant departed. Arnold & Porter, 756 A.2d at 433.
Under Arnold & Porter and the cases from which it springs,

such testimony is insufficient for the plaintiff to prevail and
we therefore must reverse the judgment of the district court.

I. Background

The National Telephone Cooperative Association (NTCA)
sued the Exxon Mobil Corporation (Exxon) in district court,
alleging negligence. At the time of the events at issue, the
NTCA owned and occupied an office building in the District
of Columbia that abutted a gas station owned by Exxon. In
March 1990 the NTCA discovered a black liquid seeping
through a crack in the basement of its office building. The
NTCA reported the problem to Exxon, which sent environ-
mental engineers to examine the site and to repair the
basement wall. Exxon also conducted a comprehensive inves-
tigation of petroleum contamination on its own property and
reported the problem to the D.C. Department of Consumer
and Regulatory Affairs (DCRA). Exxon then submitted to
the DCRA, and the DCRA approved, a Corrective Action
Plan (CAP) pursuant to which Exxon would remediate petro-
leum contamination on its property.

There were two basic components to the CAP: a "pump
and treat" system that used a series of wells containing
pumps to control the migration of groundwater and to remove
gasoline from the water table; and a "soil vapor extraction"
(SVE) system that removed vaporous gasoline from the soil.
The CAP further detailed a number of specific measures that
Exxon would take and the types of technology that it would
use. According to the CAP, the result would be to "ensure
that hydrogeologic control is established at the site to prevent
further off-site migration, as well as eliminate residual soil
hydrocarbons that could [contaminate the groundwater]."

Notwithstanding Exxon's remediation efforts, the leakage
of black liquid through the crack in the wall of the NTCA's
office building recurred in March 1995. The NTCA was then
poised to sell its office building but the deal fell through
owing to the leak. The NTCA finally sold the building three
years later.

 The NTCA proceeded to the jury on the theory that Exxon
had been negligent in its remediation. The NTCA argued,
and the district court agreed, that Exxon's own CAP supplied
the operative standard of care. The expert who testified in
support of the NTCA's theory of negligence, Mr. Kent Camp-
bell, took issue with four aspects of Exxon's remediation: (1)
the type of pump Exxon installed in the wells; (2) its failure
to excavate more dirt in installing underground storage tanks;
(3) its installation of an insufficient number of wells to capture
groundwater; and (4) its failure to install and to run an
adequate SVE system. As Exxon clarified in cross-
examining him, Campbell expressly grounded these criticisms
in his own views and did not relate them to any general
practice or recognized standard. Although Campbell did not
specify exactly how Exxon should have achieved hydrogeolog-
ic control, he did testify that it should have achieved it and
that Exxon's loss of hydrogeologic control coincided with
recurrence of the leakage.

The NTCA contended that the leakage, in addition to
damaging its building, delayed sale of the building for three
years and thus both deprived it of the return it would have
realized from investing the proceeds of an earlier sale, and
owing to a change in market conditions forced it to pay more
for a long-term lease on the building to which it eventually
moved. The jury found in favor of the NTCA, awarding it
$30,000 in damages for harm to the building and $2,459,357 in
damages arising from the delayed sale. The district court
entered judgment on that verdict and Exxon appealed, chal-
lenging both the determination that it was negligent and the
award of damages for delaying the sale of the building.

II. Analysis

Initially Exxon maintains that the doctrine of primary
jurisdiction forecloses a finding of negligence; specifically,
Exxon claims the DCRA's exercise of its regulatory authority
in approving Exxon's remediation plan gave the DCRA pri-
mary jurisdiction, to which the district court owed deference.
See United States v. Western Pac. R.R. Co., 352 U.S. 59, 64

(1956) (doctrine "comes into play whenever enforcement of
the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special com-
petence of an administrative body"). We review the district
court's decision to the contrary only for abuse of discretion.
See Environmental Technology Council v. Sierra Club, 98
F.3d 774, 789 (4th Cir. 1996); Brumark Corp. v. Samson
Resources Corp., 57 F.3d 941, 947-48 (10th Cir. 1995).

Exxon failed to show that the DCRA oversees a compre-
hensive regulatory scheme that in any way would be dis-
turbed by the instant action. At most the record suggests
that the DCRA saw nothing in Exxon's remediation plan that
violated the agency's regulations -- not that the DCRA so
closely supervised the remediation planning or implementa-
tion as in practice to prescribe the standard of care that
would govern it. The district court was well within its
discretion, therefore, in hewing to the principle that conduct
complying with administrative regulations may nonetheless
be negligent. See, e.g., Restatement (Second) of Torts
s 288C.

Exxon also claims that "because the standard of care for a
service station remediation is not readily discernible by a lay
person, the District Court erred in not instructing the jury
that the NTCA had to establish that standard through expert
testimony." Exxon's sole basis for objecting to the lack of a
jury instruction on this point is District of Columbia v.
Mitchell, 533 A.2d 629, 649-50 (D.C. 1987), in which the Court
of Appeals refused to reinstate a verdict for the plaintiff in a
medical malpractice case because such an instruction had not
been given. Id. at 649-50. Even if Mitchell can be read as
stating a per se rule -- a proposition for which it has never
been cited -- Exxon must show prejudice in order to secure
reversal upon the basis of a missing jury instruction. See
Material Supply Int'l, Inc. v. Sunmatch Indus. Co., 146 F.3d
983, 992 (D.C. Cir. 1998). In this case any error was assured-
ly harmless: the district court instructed the jury that the
NTCA bore the burden of proof and that the relevant stan-
dard of care was that of a specialist performing remediation;
Campbell's was undisputedly expert testimony, and there was

no other evidence from which the jury could have concluded
that the NTCA carried its burden.

Exxon next argues that the NTCA did not fulfill its obli-
gation to explain to the jury the operative standard of care
for the remediation. The NTCA's answer is that it permissi-
bly treated Exxon's own CAP as supplying that standard.
The NTCA's principal theory is that the objective of the
CAP -- to "ensure that hydrogeologic control is estab-
lished" -- itself supplies the relevant standard of care. If so,
then liability would be established by the jury finding that
Exxon's loss of hydrogeologic control caused the renewed
leakage into the NTCA's adjoining property.

This theory is more akin to strict liability or to negligence
per se -- both of which the district court expressly reject-
ed -- than to simple negligence; it entails no effort to connect
the damage to any particular conduct in which Exxon did or
did not engage. The theory is therefore inconsistent with the
District of Columbia's requirement that a standard of care
beyond the grasp of a lay jury be related either to "practices
in fact generally followed" or "to some standard [that is]
nationally recognized." Arnold & Porter, 756 A.2d at 433.
We cannot deem the CAP's stated goal of "ensur[ing] hydro-
geologic control" a standard of care on this record because it
stands unrelated to any accepted practice or standard to
which Exxon should have but failed to conform.

The lone precedent that NTCA marshals in hope of bridg-
ing this gap is Levy v. Schnabel Found. Co., 584 A.2d 1251
(D.C. 1991), which involved allegedly negligent construction;
the court held that "tak[ing] all necessary steps to prevent
any movement that would cause damage to adjacent proper-
ties" constituted a standard of care. Id. at 1255. The court
so held, however, only because there was expert testimony --
indeed, an expert for each party had specifically testified --
that this was "the applicable standard of care for persons
engaged in [the defendant's line of work]." Id. Therefore,
although this "articulation of the standard of care might be
viewed as sounding more like a lofty goal," id. at 1256, the
"expert testimony was sufficient, albeit barely so" to establish

it as the applicable standard of care. Id. at 1255. In this
case the NTCA cannot claim the benefit of Schnabel because
it introduced no evidence that "ensuring hydrogeologic con-
trol" was not merely a goal but was in fact the prevailing
practice or a national standard applicable to Exxon's efforts
at environmental remediation.

The NTCA fares no better with its argument that the
prescriptions in the CAP supply a standard of conduct to
which Exxon might be held. The central problem with the
argument is that the NTCA's expert, Campbell, identified no
practice or provision in the CAP from which Exxon departed
in any way that might have caused the harm. Indeed,
Campbell consistently couched his criticisms in terms of his
personal opinion, which does not suffice under the law of the
District of Columbia. See Travers, 672 A.2d at 568 (quoted
above at page 2). Consider: One of Campbell's four criti-
cisms of the remediation effort was that Exxon drilled too few
wells to capture the groundwater; yet that aspect of Exxon's
remediation effort fully complied with the CAP. Two of
Campbell's criticisms related, respectively, to the type of
pump Exxon installed in the wells and to the amount of dirt it
excavated in installing storage tanks; these issues were not
addressed in the CAP, however, nor did Campbell attempt to
tie them thereto. Campbell's final criticism was that Exxon
was late in installing the SVE system called for in the CAP,
and then ran it less than half the time it was in place;
although this might identify a breach of the CAP, the NTCA
adduced no evidence that causally connects it to Exxon's loss
of hydrogeologic control and the ensuing harm to the build-
ing.

Finally, the NTCA suggests that "the regulations cited in
the trial court's 'evidence of negligence' jury charge are
relevant evidence the Jury could consider in determining the
common law standard of care." These regulations avail it not
with respect to the standard of care, however, as the NTCA
did not introduce expert testimony explaining their applica-
tion, as required in the District of Columbia. See McNeil
Pharm. v. Hawkins, 686 A.2d 567, 583 (D.C. 1996) ("this
jurisdiction has required expert testimony to explain the

applicability of statutes where the statute is relied upon as
establishing the standard of care").

In sum, the NTCA failed to establish a standard of care
consistent with its theory of negligence. As that is fatal to
the NTCA's case, we do not reach Exxon's other arguments.

III. Conclusion

Because the NTCA did not introduce evidence of the
standard of care through expert testimony as required under
the law of the District of Columbia, it did not prove its case
against Exxon. The judgment of the district court in favor of
the NTCA is therefore reversed and vacated, and this case is
remanded to the district court for it to enter judgment in
favor of Exxon.

So ordered.