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February 26, 2013
Expert testimony in CERCLA case

The qualifications of an expert witness played a critical role in a case in which AVX Corporation, a large manufacturer of electronic components, charged that the United States was responsible for a portion of contamination of a land parcel on a former military base in Myrtle Beach, South Carolina. 

Following a 6-day bench trial, in May 2011 a U.S. district court agreed with an expert witness provided by the U.S. Department of Justice (DOJ), who said groundwater from the military’s property could not have migrated onto the property at issue. 

In the latest judicial action, the U.S. Court of Appeals for the 4th Circuit affirmed the lower court’s decision and dismissed claims by AVX that DOJ’s witness was not qualified to provide expert testimony.  The 4th Circuit also disagreed with AVX’s argument that the district court should have analyzed whether the harm caused by the contamination on the subject property was divisible among the United States and other parties. 

TCE contamination

The case concerns a 20-acre parcel owned by Horry Land Company.  The parcel is part of a 6,700-acre property on which the U.S. built a military base at the start of World War II.  After the war, the property was returned to the city of Myrtle Beach and later divided into parcels.  The military acquired one parcel on which it built the Myrtle Beach Air Force Base.  AVX also acquired a lot, and between 1949 and 1986 used trichloroethylene (TCE), a hazardous substance, in the manufacture of ceramic capacitors. 

AVX eventually disclosed that its operations had resulted in extensive TCE contamination of groundwater at its operations; the company then completed an investigation and cleanup approved by the South Carolina Department of Health and Environmental Control. 

AVX was also leasing the adjacent Horry property as a parking lot.  After Horry discovered TCE contamination on its own property, AVX commenced remediation, which the company projects will cost $5 million.  AVX later sued both Horry and the United States, stating that operations during the war and afterward on the Air Force base had contributed to the contamination.  AVX settled with Horry, leaving the U.S. as the sole defendant.

Hydrology expert?

In its defense the DOJ brought in an expert witness who analyzed the underground hydrology and testified that contaminated groundwater from the U.S. sites could not have reached the Horry site.  AVX challenged the qualifications of the expert witness, stating that he was not an expert in hydrology because his experience in giving expert testimony was limited to sediment, not hydrology.  The district court disagreed, stating that the witness was indeed an expert in hydrology even though his expert testimony was limited to sediment.  The district court was also unconvinced by AVX’s argument that the witness was not qualified to analyze the migratory behavior of TCE. 

In its review, the 4th Circuit noted that “great deference” must be given to district courts, who serve as “gatekeepers” in assessing the qualifications of expert witnesses.  Hence, the 4th Circuit refused to conclude that AVX met the high standard needed to show that the district court had abused its discretion in admitting the testimony of the expert witness.


Regarding AVX’s assertion that the U.S. must be apportioned responsibility for the cost of cleaning up the Horry property, the 4th Circuit found that this is possible only if the U.S. is a potentially responsible party (PRP), as defined by CERCLA.  But, the 4th Circuit continued, the district court’s “exhaustive review” of the evidence showed that the U.S. bore no responsibility for contamination at the Horry site.  The 4th Circuit stated that AVX again needed to clear a high bar to show that the district court’s assessment of the evidence was faulty. 

“AVX points to favorable evidence and testimony for its position, but a showing of clear error requires more,” states the 4th Circuit.  “That is not the case here.  Accordingly, we decline to disturb the district court’s finding that the United States did not cause any of the TCE contamination on the Horry Land Property.”

Click here for the 4th Circuit’s opinion in AVX Corporation v. United States.

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