While The Outcome In the Lower Fox River Case Continues to Change, The Legal Standard For Apportionment Is The Same

In 1832, Abraham Lincoln said that ” it is better to be only sometimes right, than at all times wrong, so soon as I discover my opinions to be erroneous, I shall be ready to renounce them.”  Judge Greisbach of Eastern District of Wisconsin apparently lives by this credo and once again has reversed himself in the  Fox River PCB Superfund litigation.   The history of Judge Greisbach’s readiness to renounce his opinions is catalogued in a string of my blog posts.  In 2012, the first blog post noted how Judge Greisbach had initially rejected the argument that apportionment in a Superfund case could be based solely on the volume of PCBs that NCR Corp had contributed to a portion of the lower Fox River.  In 2014, a second blog post explained that the Seventh Circuit had reversed Judge Greisbach on that issue and remanded the matter for a determination if there was sufficient evidence of NCR’s volumetric contribution to permit apportionment.  A third post in May of 2015 reported how Judge Greisbach had ruled that NCR was entittled to apportionment.  Earlier this week, however, Judge Greisbach reversed himself once again, this time holding that the expert evidence on which he based his May 2015 decision was not reliable.

While it’s easy to get lost in all the changes of fortune suffered by the parties in the Lower Fox River case, the important point is that this case has clarified that, following the Supreme Court’s decision in Burlington Northern, a PRP is entitled to establish its right to apportionment merely by proving what its volumentric contribution was.  Although the law has evolved differently, I think Judge Greisbach’s first opinion was the best statement of what the law on apportionment should be since it seems doubtful that contamination at a site really can be divisible merely by knowing what volumes of waste were contributed by a party.

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