Dura Automotive Systems of Indiana v. Cts Corp.

• Decision Date: 04 April 2002
• Docket Number: No. 01-1081.,01-1081.
• Citation: 285 F.3d 609
• Parties: DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC., formerly known as Excel Corporation, Plaintiff-Appellant, v. CTS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

285 F.3d 609

DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC., formerly known as Excel Corporation, Plaintiff-Appellant, v. CTS CORPORATION, Defendant-Appellee.

No. 01-1081.

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2001.

Decided April 4, 2002.

Rehearing and Rehearing En Banc Denied May 29, 2002.^*

W.C. Blanton (argued), Blackwell Sanders Peper Martin, Kansas City, MO, for plaintiff-appellant.

Paul W. Schroeder (argued), Jones, Day, Reavis & Pogue, Chicago, IL, Elizabeth B. Ahlemann, Elkhart, IN, for defendant-appellee.

Before POSNER, MANION, and DIANE P. WOOD, Circuit Judges.

POSNER, Circuit Judge.

In 1981 the Main Street Well Field, part of the water supply of the city of Elkhart, Indiana, was discovered to be contaminated by TCE and other volatile organic compounds that are used as industrial or household solvents. Twelve years later the EPA, having cleaned up the contamination, sued several entities under the Superfund statute (Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.), including Dura Automotive Systems (actually its predecessor, Excel, but that's a detail we can ignore), to recover the costs of the clean-up. Dura impleaded CTS Corporation, claiming that it was responsible for some of the pollution and should therefore be required to reimburse a share of Dura's clean-up expense. The EPA's claims were settled or otherwise resolved, leaving only Dura's third-party claim against CTS. At the behest of CTS and on the authority of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the district judge disqualified Dura's sole expert witness; and then, holding that the remaining evidence was insufficient to create a genuine issue of material fact, he granted summary judgment for CTS.

The groundwater stream beneath CTS's plant, a plant that manufactures plastic by a process that employs volatile organic compounds, is 3,000 feet west of the Main Street Well Field and runs generally south rather than east. In contrast, Dura's plant, which also uses these chemicals, is across the street from the well field and it was Dura rather than CTS that was a defendant in the EPA's suit. But conceivably some of the groundwater beneath CTS's plastics plant had seeped into the well field back in the late 1970s or early 1980s, contributing to the pollution discovered in 1981. This could only be so, however, if CTS's plant was within the well field's "capture zone" (in other words, its catchment basin), the area within which groundwater, if present, could be expected to flow to the well field. The size of the capture zone would depend on such things as the porosity of the soil and — a factor particularly emphasized by the parties — the rate at which the well field pumps water. The more it pumps, the larger the capture zone, because the removal of groundwater beneath the field causes groundwater to be drawn in by gravity from other areas.

To use porosity, pumping, and other data that bear on the size of the capture zone to map the zone, hydrogeologists build mathematical models consisting of systems of equations that show changes in the boundaries of the zone as functions of changes in the causal variables, such as porosity. These models are used to predict the future size of capture zones but they can also be used to estimate the size of a capture zone in the past if the requisite historical data on the causal variables are available, here, for example, data on pumping rates in the late 1970s. The parties agree that without such a model Dura could not prove its case against CTS. A consulting firm retained by the EPA in the original suit had placed CTS's plant outside the well field's capture zone, and if this placement stood, CTS could not have been a source of the pollution of the Main Street Well Field and so Dura would have no right of reimbursement by CTS.

Dura designated as its one and only expert witness Nicholas Valkenburg, a hydrogeologist who works for a consulting firm called Geraghty & Miller. At his deposition, however, Valkenburg admitted that he was not an expert in mathematical models of groundwater flow and that the modeling on which he relied for his conclusion that CTS's plastics plant was indeed within the well field's capture zone had been done by other employees of Geraghty & Miller, using two models, QuickFlow and SLAEM.

When CTS moved that Valkenburg be barred from testifying and that Dura's third-party claim be dismissed, Dura responded with affidavits from four employees or ex-employees of Geraghty & Miller who had worked on the Dura project. These professional groundwater-flow modelers attested that the models they had used, QuickFlow and SLAEM, were reliable and were appropriate for determining the well field's capture zone in the late 1970s. CTS moved to strike the affidavits under Fed.R.Civ.P. 37(c)(1) on the ground that Dura's disclosure of additional expert witnesses, required by Rule 26(a)(2), was untimely, since the deadline for filing expert reports had expired six months previously. The district judge granted the motion to strike, and holding that without the affidavits there was insufficient evidence of the reliability of the models, ruled that Valkenburg could not testify — and without Valkenburg's testimony, Dura had no case. So the judge granted summary judgment for CTS.

If the affidavits were properly struck, Valkenburg's testimony indeed lacked an adequate foundation. For while there is a smattering of other evidence about the models (for example, that they are widely used), it does not establish their appropriateness for mapping the well field's capture zone 20 odd years ago. Dura argues, however, that even if properly struck as untimely expert witness reports, so that Dura would not be able to call the authors as expert witnesses at trial, the affidavits remained usable as evidence that the QuickFlow and SLAEM models were indeed suitable for the purpose to which Valkenburg sought to put them. This is true to the extent that the affidavits merely attest to facts or opinions on which Valkenburg would be permitted to rely, such facts as that SLAEM had been peer reviewed. But to the extent that the affidavits contain evidence that would have to be presented at trial by an expert witness or witnesses other than Valkenburg in order for Dura to withstand a motion for judgment as a matter of law, Dura's failure to have made timely disclosure of their expert opinions invited application of Rule 37(c)(1) to bar the authors of the affidavits, or any other expert for that matter, from testifying along with Valkenburg. NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 785-86 (7th Cir.2000); Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir.1998); Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60-61 (1st Cir.2001).

We must decide whether the district judge was reasonable in regarding the affidavits as experts' reports that Dura had failed to disclose to CTS in a timely fashion rather than merely as attestations that show that Valkenburg was competent to report the results of the modeling exercises undertaken by other employees of the consulting firm. As the form in which we have stated the question makes clear, we must give the benefit of the doubt to the district judge. General Electric Corp. v. Joiner, 522 U.S. 136, 141-43, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); NutraSweet Co. v. X-L Engineering Co., supra, 227 F.3d at 786; Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.2001).

An expert witness is permitted to use assistants in formulating his expert opinion, and normally they need not themselves testify. United States v. Bramlet, 820 F.2d 851, 855-56 (7th Cir.1987); United States v. Lawson, 653 F.2d 299, 301-02 (7th Cir.1981). The opposing party can depose them in order to make sure they performed their tasks competently; and the expert witness can be asked at his deposition whether he supervised them carefully and whether his relying on their assistance was standard practice in his field. If the requisite assurances are forthcoming, the assistants' work need not be introduced into evidence. Rule 703 of the Federal Rules of Evidence is explicit that "the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."

Analysis becomes more complicated if the assistants aren't merely gofers or data gatherers but exercise professional judgment that is beyond the expert's ken. (They needn't, of course, be assistants. We use the term because that seems the best description of the relation of the four affiants to Valkenburg, but it would make no difference if they were independent experts.) Now it is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert; and it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well. The Committee Notes to the 1972 Proposed Rule 703 give the example of a physician who, though not an expert in radiology, relies for a diagnosis on an x-ray. We too do not "believe that the leader of a clinical medical team must be qualified as an expert in every individual discipline encompassed by the team in order to testify as to the team's conclusions." Walker v. Soo Line R.R., 208 F.3d 581, 589 (7th Cir.2000); see also United States v. Smith, 869 F.2d 348, 355 (7th Cir.1989); Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 8-9 (1st Cir.2001). But suppose...