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Norfolk S. Corp. v. Chevron, U.S.A., Inc.

Citation: 33 ELR 20257
No. No. 3:00-cv-J-32MMH, (M.D. Fla., 08/12/2003)

The court dismisses a railroad's state-law and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims against two petroleum companies that operated pipeline terminals on the railroad's property. Claim preclusion barred the railroad from bringing suit against one of the companies. Jurisdiction was proper in the first action, the settlement agreement that resulted from the first action constitutes a final judgment on the merits, and the parties are in privity. Further, the claims stem from the same cause of action, namely, the company's petroleum storage and distribution activities on the site. Contrary to the railroad's assertions, the first action was not limited to oil discharge. It also concerned other contamination. And while the instant case concerns contamination at a different location than in the first case, both actions focused on the origin of the contamination. Moreover, the railroad failed to allege any new wrongful conduct, and although CERCLA was not enacted at the time of the first action, the mere adoption of new statutory provisions does not defeat claim preclusion if a single closed transaction is involved. In addition, the railroad could not create a genuine issue of material fact as to whether the second petroleum company caused or contributed to the contamination at issue because the railroad's expert testimony on causation was inadmissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 23 ELR 20979 (1993). The experts are well qualified in their fields, but due to the passage of time and the lack of evidence, they filled in too many blanks with speculation and conjecture for their opinions to be scientifically reliable. Nor did they conduct their own testing or subject their theories to peer review.

Counsel for Plaintiff
Jeffrey S. Berlin
Verner, Liipfert, Bernhard, McPherson & Hand
901 15th St. NW, Washington DC 20005
(202) 371-6000

Counsel for Defendant
Robert C. Phelps
Pillsbury, Madison & Sutro
50 Fremont St., San Francisco CA 94105
(415) 983-1000