United States v. NCR Co.,No. 10-C-910, 2015 WL 6142993 (E.D. Wis. Oct. 19, 2015).
A federal district court in the Fox River litigation held that defendant NCR failed to meet its burden to demonstrate both that the harm at issue was theoretically capable of divisibility and there was a reasonable basis for apportionment. In 2014, the Seventh Circuit had ruled that the risk of harm increases with polychlorinated biphenyl (PCB) concentrations and thus is continuous. On remand, the district court issued an order on May 15, 2015 finding that NCR had established a divisibility defense and apportioning costs. Upon reconsideration, the court found that the estimates of PCB contribution by Mr. John Wolf, cited by NCR, contradicted facts previously found by the court, and that two key sources of PCB contribution were missing from Mr. Wolf’s data. NCR’s expert had relied on Mr. Wolf’s data. The court also rejected the NCR expert’s “binary approach” to apportionment, under which ascribing large mass estimates to NCR did not substantially alter NCR’s share, in contradiction to the Seventh Circuit’s view in this case “that both the harm and the cleanup costs are relatively linear.” On the other hand, the district court rejected the argument by other parties that since NCR caused the entirety of the harm by producing carbonless copy paper in the first place, the harm must not be divisible, stating that CERCLA’s framework is based on “actual pollution” rather than a “product liability framework.”
Further background is available at http://www.americanbar.org/groups/environment_energy_resources/committees/snrdl_regional_updates/20151202_third_time_is_a_strike_out.html.