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Miller v. City of Fort Myers

United States District Court, M.D. Florida, Fort Myers Division

January 4, 2020

DERETHA MILLER, TAMBITHA BLANKS and WILLIE BLANKS, individually, and on behalf of a class of persons similarly situated Plaintiffs,

          OPINION AND ORDER [1]


          Before 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.


         Many 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).

         Around 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).

         When 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).

         Despite 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.


         “The 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 party.” Id.

         The 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).

         “As 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).


         A. Daubert[2] Motions

         Before 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 denied.

         In 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 methods; 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).

         1. Teaf

         Miller moves to exclude several of Teaf's opinions from his declaration (Doc. 115-28) on three grounds. (Doc. 112).

         To 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.

         Next, 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.

         And 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.

         Thus, Miller's Motion (Doc. 112) is denied.

         2. Duque

         The 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.

         B. RCRA Claim

         Moving 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.

         RCRA 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.”[3]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).

         Three other terms are important too.

         First, “‘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 ...

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