Nat'l Tele. Cooperative Assoc. v. Exxon Mobil Corp., 99-7124

• Decision Date: 03 April 2001
• Docket Number: No. 99-7124,99-7124
• Citation: 244 F.3d 153,345 U.S.App.D.C. 257
• Parties: (D.C. Cir. 2001) National Telephone Cooperative Association, Appellee v. Exxon Mobil Corporation, A New Jersey Corporation, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 153

244 F.3d 153 (D.C. Cir. 2001)

National Telephone Cooperative Association, Appellee v. Exxon Mobil Corporation, A New Jersey Corporation, Appellant

No. 99-7124

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 16, 2001

Decided April 3, 2001

Appeal from the United States District Court for the District of Columbia (No. 96cv02504)

Arthur H. Jones, Jr. argued the cause for appellant. With him on the briefs were Robert T. Lehman, Cynthia J. Morris, and Heather E. Gange.

Donald B. Mitchell, Jr. argued the cause for appellee. With him on the brief was James H. Hulme.

Before: Edwards, Chief Judge, Ginsburg, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

The plaintiff in this case won a jury verdict and judgment on the theory that the defendant negligently performed an environmental remediation; the central question before us is whether the plaintiff at trial established the standard of care, which is necessary to support the judgment in its favor. Under the law of the District of Columbia, if the applicable standard of care in a negligence action is "beyond the ken of the average layperson," then the plaintiff must establish that standard through the testimony of an expert. District of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (2000) (quoting Messina v. District of Columbia, 663 A.2d 535, 538 (D.C. 1995)). Specifically,

the expert must clearly articulate and [refer to] a standard of care by which the defendant's actions can be measured .... Thus the expert must clearly relate the standard of care to the practices in fact generally followed by [similarly situated parties] or to some standard nationally recognized by such [parties].

Id. (quoting Phillips v. District of Columbia, 714 A.2d 768, 773 (D.C. 1998)). To similar effect, "[t]he personal opinion of the testifying expert as to what he or she would do in a particular case, without reference to a standard of care, is insufficient to prove the applicable standard of care." Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996).

No one doubts that the standard of care in this case is beyond the ken of the average layperson. In mounting its case, therefore, the plaintiff introduced expert testimony; but its expert described the standard of care with respect only to an ultimate goal that the defendant failed to meet, not with respect to any "practices in fact generally followed" or "to some standard [that is] nationally recognized" from which the defendant departed. Arnold & Porter, 756 A.2d at 433. Under Arnold & Porter and the cases from which it springs, such testimony is insufficient for the plaintiff to prevail and we therefore must reverse the judgment of the district court.

I. Background

The National Telephone Cooperative Association (NTCA) sued the Exxon Mobil Corporation (Exxon) in district court, alleging negligence. At the time of the events at issue, the NTCA owned and occupied an office building in the District of Columbia that abutted a gas station owned by Exxon. In March 1990 the NTCA discovered a black liquid seeping through a crack in the basement of its office building. The NTCA reported the problem to Exxon, which sent environmental engineers to examine the site and to repair the basement wall. Exxon also conducted a comprehensive investigation of petroleum contamination on its own property and reported the problem to the D.C. Department of Consumer and Regulatory Affairs (DCRA). Exxon then submitted to the DCRA, and the DCRA approved, a Corrective Action Plan (CAP) pursuant to which Exxon would remediate petroleum contamination on its property.

There were two basic components to the CAP: a "pump and treat" system that used a series of wells containing pumps to control the migration of groundwater and to remove gasoline from the water table; and a "soil vapor extraction" (SVE) system that removed vaporous gasoline from the soil. The CAP further detailed a number of specific measures that Exxon would take and the types of technology that it would use. According to the CAP, the result would be to "ensure that hydrogeologic control is established at the site to prevent further off-site migration, as well as eliminate residual soil hydrocarbons that could [contaminate the groundwater]."

Notwithstanding Exxon's remediation efforts, the leakage of black liquid through the crack in the wall of the NTCA's office building recurred in March 1995. The NTCA was then poised to sell its office building but the deal fell through owing to the leak. The NTCA finally sold the building three years later.

The NTCA proceeded to the jury on the theory that Exxon had been negligent in its remediation. The NTCA argued, and the district court agreed, that Exxon's own CAP supplied the operative standard of care. The expert who testified in support of the NTCA's theory of negligence, Mr. Kent Campbell, took issue with four aspects of Exxon's remediation: (1) the type of pump Exxon installed in the wells; (2) its failure to excavate more dirt in installing underground storage tanks; (3) its installation of an insufficient number of wells to capture groundwater; and (4) its failure to install and to run an adequate SVE system. As Exxon clarified in crossexamining him, Campbell expressly grounded these criticisms in his own views and did not relate them to any general practice or recognized standard. Although Campbell did not specify exactly how Exxon should have achieved hydrogeologic control, he did testify that it should have achieved it and that Exxon's loss of hydrogeologic control coincided with recurrence of the leakage.

The NTCA contended that the leakage, in addition to damaging its building, delayed sale of the building for three years and thus both deprived it of the return it would have realized from investing the proceeds of an earlier sale, and owing to a change in market conditions forced it to pay more for a long-term lease on the building to which it eventually moved. The jury found in favor of the NTCA, awarding it $30,000 in damages for harm to the building and $2,459,357 in damages arising from the delayed sale. The district court entered judgment on that verdict and Exxon appealed, challenging both the determination that it was negligent and the award of damages for delaying the sale of the building.

II. Analysis

Initially Exxon maintains that the doctrine of primary jurisdiction forecloses a finding of negligence; specifically, Exxon claims the DCRA's exercise of its regulatory authority in approving Exxon's remediation plan gave the DCRA primary jurisdiction, to which the district court owed deference. See United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (1956) (doctrine "comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body"). We review the district court's decision to the contrary only for abuse of discretion. See Environmental Technology Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996); Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 947-48 (10th Cir. 1995).

Exxon failed to show that the DCRA oversees a comprehensive regulatory scheme that in any way would be disturbed by the instant action. At most the record suggests that the DCRA saw nothing in Exxon's remediation plan that violated the agency's regulations -not that the DCRA so closely supervised the remediation planning or implementation as in...