United States District Court, M.D. Florida, Fort Myers Division
DERETHA MILLER, TAMBITHA BLANKS and WILLIE BLANKS, individually, and on behalf of a class of persons similarly situated Plaintiffs,
THE CITY OF FORT MYERS, RANDALL P. HENDERSON, JR. and SAEED KAZEMI, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
the Court is Defendants City of Fort Myers, Randall
Henderson, and Saeed Kazemi's (collectively “the
City”) Motion for Partial Summary Judgment on RCRA
(Doc. 115) and Plaintiffs Deretha Miller, Tambitha Blanks,
and Willie Blanks' (collectively “Miller”)
response in opposition (Doc. 124). Also here is the
City's Motion for Partial Summary Judgment on
Plaintiffs' Individual State-Law Claims (Doc. 116) along
with Miller's opposition (Doc. 125). Relatedly, each
party moved to exclude expert opinions (Docs. 102; 110; 111;
112) to which the other responded (Docs. 106; 122; 123). For
these reasons, the Court grants summary judgment on the
remaining federal claim (Doc. 115) and declines supplemental
jurisdiction over the remaining state-law claims.
years ago, the City dumped lime sludge in a vacant field it
owned (the “Site”). (Docs. 115-23 at 4; 115-36 at
32). That sludge (a by-product of the City's water
treatment) was contaminated with arsenic. (Doc. 124-5 at 4).
In all, the City dumped around 25, 000 cubic yards of sludge
at the Site. (Doc. 124-5 at 4). Over time, the Dunbar
neighborhood developed surrounding the Site. (Doc. 115-25 at
2). Yet the sludge remained in the ground for about fifty
years. (Doc. 115-9 at 3).
2007, the Florida Department of Environmental Protection (the
“Department”) took an interest in the Site. (Doc.
124-5 at 2). Eventually, the City installed monitoring wells
and started testing groundwater. (Doc. 115-9 at 3). The
Department oversaw the process and reviewed regular
monitoring reports. (Doc. 115-9 at 3). This continued for
years until Miller notified the City she intended to sue.
(Doc. 100-1). Two months later, the City decided to remove
the sludge. (Doc. 115-3).
Miller sued in 2018, the sludge was still buried on the Site.
(Doc. 115-9 at 3). Later that year, the City began excavating
and removing it. (Doc. 115-9 at 3). The City removed nearly
30, 000 tons of sludge and soil. (Doc. 115-9 at 3). And by
summer of 2019, all the sludge was gone. (Doc. 115-9 at 4;
Docs. 115-21; 115-22; 124-4). According to the Department,
“soil sampling has demonstrated there is no remaining
soil contamination above the Department's Soil Cleanup
Target Levels [(“SCTL”)] near the surface of the
[S]ite.” (Docs. 115-21 at 2; 124-4 at 2). But
groundwater monitoring continues, with the City sending the
Department test results monthly. (Doc. 124-4).
the cleanup, Miller contends an imminent and substantial
endangerment remains. Mostly, Miller challenges the
City's investigation and remediation of contamination in
the area, saying both were insufficient to abate the threat
of harm. So, says Miller, endangerment remains and the Court
should compel the City to remediate further in Dunbar.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
“might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). And a material fact is
in genuine dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
moving party bears the initial burden to show the lack of a
material fact. Shiver v. Chertoff, 549 F.3d 1342,
1343 (11th Cir. 2008). At this stage, courts must view all
facts and draw all reasonable inferences in the light most
favorable to the nonmoving party. Rojas v. Florida,
285 F.3d 1339, 1341-42 (11th Cir. 2002). But if “the
movant adequately supports its motion, the burden shifts to
the nonmoving party to show that specific facts exist that
raise a genuine issue for trial.” Stephens v.
Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir.
2014) (citation omitted).
relevant here, when the summary judgment movant does not bear
the burden of proof at trial, the movant may show ‘that
there is an absence of evidence to support the non-moving
party's case.'” Doe v. Drummond Co.,
782 F.3d 576, 603-04 (11th Cir. 2015) (quoting
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16
(11th Cir. 1993)). A “negation of the non-moving
party's claim is not required.” Id. at
604. “If the movant shows that there is an absence of
evidence, the non-moving party who bears the burden of proof
at trial must contradict this showing by demonstrating
‘that the record in fact contains supporting evidence,
sufficient to withstand a directed verdict
motion.'” Id. (quoting
Fitzpatrick, 2 F.3d at 1116).
jumping into the merits, each side filed Daubert
motions to exclude portions of the other's expert
opinions. The Court addresses two of those motions:
Miller's challenge to Dr. Christopher Teaf (Doc. 112) and
the City's challenge to Isidro Duque (Doc. 102). Both are
federal court, a “witness who is qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise” when,
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. The Court is the “gatekeeper”
to determine whether (1) the expert is qualified; (2) the
methodology is reliable; and (3) the methodology is correctly
applied to assist the factfinder. E.g., Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir.2005).
moves to exclude several of Teaf's opinions from his
declaration (Doc. 115-28) on three grounds. (Doc. 112).
start, Miller argues Teaf offered opinions on geology and
hydrogeology, but lacks the qualifications to do so. (Doc.
112 at 3-5). The City disagrees (Doc. 123), so does the
Court. Much of Miller's quarrel appears to be with
Teaf's lack of a degree in geology or hydrogeology. Yet
“[e]xperts may be qualified by scientific training,
education, or experience in the relevant field; they need not
be formally educated to qualify as experts.” United
States v. Williams, 865 F.3d 1328, 1338 (11th Cir.
2017). In his declaration, Teaf explains his experience in
toxicology and environmental risk assessment for over forty
years. (Doc. 115-28 at 2-6). Part of that experience includes
evaluating health and environmental impacts that various
pollutants have “in water, soils, sediments, air, and
other environmental media.” (Doc. 115-28 at 3-4).
According to the City, reviewing soil and groundwater
conditions is an integral part of the exposure and risk
assessments Teaf often performed as a toxicologist during the
last four decades. (Doc. 115-28 at 3-6). What is more, Teaf
recently published a paper using groundwater and soil data to
determine the effects of arsenic. (Doc. 123 at 9). That is
like the opinions offered here. Many of the challenged
opinions are also supported by the City's geology expert,
who is unchallenged. (Doc. 115-25). Miller offers nothing to
rebut the evidence of Teaf's experience and
qualifications to offer basic testimony on the migration of
arsenic here. So to the extent that Miller seeks to exclude
opinion on these matters, the Motion is denied.
Miller contends Teaf's opinions on the effectiveness of
the City's remediation should be excluded. The City does
not respond to that challenge. Miller's point is well
taken. But typically, courts consider Daubert
motions only as needed to resolve summary judgment.
Lanard Toys Ltd. v. Toys “R” Us-Delaware,
Inc., No. 3:15-cv-849-J-34PDB, 2019 WL 1304290, at *6
(M.D. Fla. Mar. 21, 2019); Mama Jo's, Inc. v. Sparta
Ins., No. 17-cv-23362-KMM, 2018 WL 3412974, at *4 n.9
(S.D. Fla. June 11, 2018). As explained below, the success of
the City's remedial efforts is not dispositive. So while
the Court will not rely on any opinion Teaf offers on the
City's cleanup effectiveness, it need not decide whether
to exclude the opinion on that basis.
finally, Miller seeks to exclude Teaf's opinions on
background levels of arsenic in the soil because he failed to
show his methodology was reliable. But as the City notes,
Teaf did not opine on the actual background levels of arsenic
in Lee County. Rather, he discussed studies of background
levels in Florida generally. Miller does not challenge those
studies, some of which included data from Lee County. Teaf
simply stated those sample sizes were too small to draw
definitive conclusions about natural arsenic levels. (Doc.
115-28 at 11-12). In short, Teaf formed no opinion on the
background levels in Lee County, except the fact there is
likely some background level. For that reason, there is no
methodology to attack.
Miller's Motion (Doc. 112) is denied.
City moves to exclude a portion of Duque's expert
opinion. (Doc. 102). Specifically, the City challenges
Duque's use of the toxicity characteristic leaching
procedure (“TCLP”) because he was not qualified
to discuss it and, regardless, TCLP does not apply to this
case. Miller counters that Duque did not offer an opinion on
that test to determine if the sludge could leach to
surrounding properties. Instead, says Miller, he relied on
off-Site arsenic exceedances to conclude the sludge was the
source of groundwater contamination. Because Duque and Miller
clarified the opinion was not based on the TCLP, the Motion
(Doc. 102) is denied.
onto the merits, the City seeks summary judgment on
Miller's last federal claim: imminent and substantial
endangerment under the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6972(a)(1)(B). (Doc.
115). These are sometimes called “endangerment
claims.” Preliminarily, it is necessary to reorient
Miller's focus for this claim-again.
permits a citizen suit “against any person . . . who
has contributed or who is contributing to the past or present
. . . disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or
the environment.”42 U.S.C. § 6972(a)(1)(B)
(emphasis added). “The operative word in the statute is
the word ‘may.'” Parker v. Scrap Metal
Processors, Inc., 386 F.3d 993, 1015 (11th Cir. 2004).
This is “‘expansive language' that confers
‘upon the courts the authority to grant affirmative
equitable relief to the extent necessary to eliminate any
risk posed by toxic wastes.'” Id.
(quoting United States v. Price, 688 F.2d 204,
213-14 (3d Cir. 1982)). While broad, “there is a limit
to how far the tentativeness of the word may can
carry a plaintiff.” Crandall v. City & Cty. of
Denver, Co., 594 F.3d 1231, 1238 (10th Cir. 2010).
other terms are important too.
“‘endangerment' means a threatened or
potential harm, and does not require proof of actual
harm.” Parker, 386 F.3d at 1015. By combining
“probabilistic” words like may and endanger,
Congress signified “a reasonable prospect of future
harm is adequate to engage the gears of [an endangerment
claim] so long as the threat is near-term and involves
potentially serious ...