Mission Linen Supply v. City of Visalia, CASE NO. 1:15-CV-0672 AWI EPG

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesMISSION LINEN SUPPLY, Plaintiff v. CITY OF VISALIA, Defendant
Docket NumberCASE NO. 1:15-CV-0672 AWI EPG
Decision Date05 February 2019


CASE NO. 1:15-CV-0672 AWI EPG


February 5, 2019


This is a Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.) ("CERCLA") case that arises from the contamination of property surrounding a dry-cleaning business in Visalia, California by the chemical perchloroethylene ("PCE"). Plaintiff Mission Linen Supply ("Mission") has brought suit against the City of Visalia ("the City"). Mission seeks declaratory relief under CERCLA that sets the percentage of responsibility between it and the City for future response costs.

In December 2017, a bench trial was held. Following the bench trial, the parties attempted to settle the matter. The Court has received word that the attempts were unsuccessful. Because settlement attempts were unsuccessful, the Court now issues these findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a)(1). In sum, the Court finds that Star Laundry, Mission, and the City are potentially responsible parties for the PCE contamination plume, and after dividing Star Laundry's orphan share of future response costs, Mission will be responsible for 50% of necessary future response costs while the City will be responsible for 50% of necessary future response costs.

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Mission Linen has filed three motions to strike and the City has filed one motion to strike.

1. Mission's Motions (Doc. Nos. 153, 160, 162)

a. The City's Arguments & Proposed Findings (Doc. Nos. 160 and 162)


Two of Mission's motions seek to strike portions of the City's proposed findings of fact and conclusions of law, as well as portions of the City's response to Mission's proposed findings of fact and conclusions of law. In essence, Mission contends that the arguments and proposed facts are unsupported by the evidence and thus, improper.


Mission's motions will be denied. The documents in question are simply proposed findings and a response. The documents do not constitute evidence or the closing arguments of counsel, they are simply filings like any other motion, opposition, or reply. The Court is not swayed or influenced by arguments that have insufficient factual support. The Court will review the parties' proposed findings and the record, but the Court will not adopt any side's findings verbatim or in a wholesale fashion. The Court will not issue any proposed finding if it determines that there is an insufficient factual basis for the finding.1

b. Strike Portions of Dr. Sweetland's Testimony (Doc. No. 153)


Mission requests that the Court strike Dr. Nicole Sweetland's testimony at pages 533:10-534:25, 536:14-537:1, and 547:5-549:1 of the record. Mission argues that Dr. Sweetland expanded her previously disclosed testimony and offered new undisclosed opinions. In her rebuttal report, Dr. Sweetland offered the opinion that "Mr. Krasnoff's opinion regarding storm water runoff containing PCE at the Mission Cite is speculative." However, Mission contends that at trial, Dr. Sweetland testified as to the specific reasons why she disagrees with Mission's expert Peter Krasnoff. See Doc. No. 153-1 at 2:11-13.

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Synopsis of Relevant Testimony

At pages 533:10 to 534:25 of the trial transcript, Dr. Sweetland testified that there is contamination to the east of Mission's property, she considered whether a storm sewer could cause that contamination and whether there was a pathway to that storm sewer from the property, that there are no laterals from the property to the storm sewer, that Peter Krasnoff opined that PCE entered the storm sewer once PCE vapor from the property sorbed onto particulate matter, but there is no site specific information that indicates that fumes came out of the facility and ended up in the storm sewers. Similarly, at pages 536:14-537:1, Dr. Sweetland stated that Krasnoff provided no site specific information to support his opinion that PCE vapor ended up in the storm sewer, Krasnoff provided no evidence in support of that theory, and Dr. Sweetland saw no evidence that would support that theory. Finally, at pages 547:5 to 549:1, Dr. Sweetland stated that the condition of the storm sewers were not important to her because Krasnoff's opinion regarding PCE air vapor was speculative, that the scientific process requires individuals to support their theories, Krasnoff's opinion was a "pathway opinion" and not a "sewer condition opinion," Dr. Sweetland still has not seen evidence that support's Krasnoff's theory, and she would have expected Krasnoff to cite evidence that supports his PCE air vapor theory.


Despite Mission's motion and arguments to the contrary, the above described trial testimony appears to be consistent with Dr. Sweetland's opinion that Krasnoff's PCE air vapor and storm water runoff theory was speculative. The cited trial testimony expands on that disclosed opinion essentially by stating that Krasnoff did not cite evidence in support of his theory and Dr. Sweetland is aware of none. This is consistent with what a "speculative" opinion is. The Court finds no basis to strike Dr. Sweetland's testimony at pages 533:10-534:25, 536:14-537:1, and 547:5-549:1. Mission's motion to strike Dr. Sweetland's testimony is denied.2

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2. City's Motion (Doc. No. 151)


The City wishes to strike several aspects of Peter Krasnoff's testimony. First, Krasnoff testified that there were no other options for dry cleaners to dispose of PCE containing separator water, other than dumping the water down the drain. The City argues that this opinion is unsupported by sufficient facts and data, rather it was drawn from vague impressions from past inquiries and other cases. He conducted no investigation in this case. Second, Krasnoff testified about the Fresno and Merced sewer maintenance programs. However, the City argues that its program was not introduced into evidence. Further, none of Krasnoff's opinions were given in relation to how the City exercised due care with respect to PCE. Krasnoff's opinions are more relevant to the issue of bare liability, but not allocation. Third, Krasnoff's opinion that the City's program is not adequate should be stricken because it was outside his area of expertise and not supported by sufficient facts and data. Krasnoff also opined that the City's program was underfunded. However, Krasnoff has no experience deciding what a public agency can do with its budget and make choices. Finally, Krasnoff testified as to repair costs for the sewers. However, repair costs are not relevant to allocation, and Krasnoff's answer should be stricken, just as Mission's other expert's testimony (O'Brien) about costs were stricken.


With respect to the first opinion regarding methods of PCE disposal, Krasnoff's opinion was based on a review of documents published by the California Regional Water Quality Control Board, deposition testimony of an executive of one of the major dry-cleaning equipment manufacturers (from a unrelated lawsuit), investigations performed in other cases, and the deposition testimony of a Mr. Greaver (as part of this lawsuit). See TT 57:14-60:18. The Court has twice ruled that this foundation is sufficient for Krasnoff to offer an expert opinion about other disposal options for PCE. See TT 60:23-61:2, 522:25-523:22. The Court remains satisfied that Krasnoff has a sufficient basis to offer an expert opinion regarding disposal methods of PCE by

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dry cleaners during the 1970's and 1980's. The City's criticisms affect the weight of Krasnoff's opinions, they do not undermine the admissibility of the opinion. See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5 (9th Cir. 1987). The City's motion to strike Krasnoff's disposal methods opinion is again denied.

With respect to the second opinion, which compared the sewer maintenance programs of Merced and Fresno to the City's, the Court finds that how the City maintained or repaired its sewers is relevant to the issue of allocation. Merced is a smaller city than Visalia,3 but it is not so small that its practices serve no useful comparison to the City. However, Fresno has a population of over 500,0004 and is significantly larger than the City's population of about 133,000. Given the larger size of Fresno, as well as the additional resources that are generally available to a larger town, the Court finds that Mission has not adequately shown that Fresno is a fair comparator to the City. Therefore, under Federal Rule of Evidence 403, the Court will grant the City's motion and strike Krasnoff's testimony relating to Fresno's sewer programs/practices.5

With respect to the third opinion regarding the City's sewer practices, the Court finds that how the City maintained, cleaned, and repaired its sewers is relevant to the issue of allocation. The existence and aspects of the City's formal maintenance program is in turn relevant to how the City maintains its sewers. With respect to budgetary issues, the degree of maintenance funding could reflect on the nature of the sewer maintenance implemented. It is true that Krasnoff has never been responsible for running a municipal sewer department, however, Krasnoff is an engineer who has about 30 of experience with sewer operation, maintenance, and maintenance

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programs. See Trial Transcript at 154:17-155:17. The Court is satisfied that Krasnoff has sufficient experience with sewer maintenance programs (including funding) to render an opinion. See Trial Transcript 154:17-161:25. The Court will not grant this aspect of the City's motion to strike.6

Finally, there is no objection by Mission to striking Krasnoff's testimony regarding the estimated cost to repair the relevant sewers. In fact, Mission notes that the Court previously struck this testimony. For clarity, the Court does not find...

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