Citations
- 332 F. Supp. 3d 818
Full opinion text
JED S. RAKOFF, U.S.D.J.
Before the Court are the motions of Olin Corporation ("Olin") for summary judgment on its claims against Lamorak Insurance Company ("Lamorak") for insurance coverage at the fifteen "Remaining Sites" and for partial summary judgment on Lamorak's third-party claims for contribution and indemnity against Certain Underwriters at Lloyd's, London and London Market Insurance Companies (the "London Market Insurers" or "London"), Continental Casualty, Munich Reinsurance, and General Reinsurance, ECF Nos. 2195, 2186; the motions of Lamorak for summary judgment on Olin's claims at the Remaining Sites and for summary judgment on its own third-party claims, ECF Nos. 2188, 2189; the motions of the London Market Insurers for partial summary judgment on Lamorak's third-party claims and its own claims against Olin under Rule 14, ECF Nos. 2190, 2191; and the motions of General Reinsurance, Continental Casualty, and Munich Reinsurance for summary judgment on Lamorak's third-party claims, ECF Nos. 2205, 2192. Also before the Court are Olin's motion to strike portions of the reports and testimony of Lamorak's experts, ECF No. 2222, and Lamorak's motion to strike Olin's Rule 56.1 statement, ECF No. 2252.
BACKGROUND
The background of this interminable litigation has been recounted in countless orders, memoranda, and opinions issued over the past several decades, familiarity with all of which is here, of course, presumed. But the following facts are particularly relevant for present purposes:
Predecessors to Lamorak issued three excess insurance policies to Olin providing relevant coverage from January 1, 1970 through December 31, 1970 (the "Policies"). See Olin Corporation's Counterstatement of Undisputed Material Facts in Opposition to Lamorak Insurance Company's Motion for Summary Judgment on Liability, Damages and Other Relief Sought by Olin Corporation for the Remaining Sites ("Olin Counter Remaining Sites 56.1") at ¶ 6, ECF No. 2269. These Policies provide up to $20 million of coverage for each "occurrence" and attach at various points above an underlying INA policy limit of $300,000. Olin Counter Remaining Sites 56.1 at ¶ 7. They are referred to as "excess" policies because they attach above an underlying, or "primary," policy.
Under Lamorak's policies:
(1) Olin is entitled to indemnity "for all sums which [Olin] shall be obligated to pay by reason of the liability; (a) imposed upon the Insured by law, (b) assumed under contract or agreement by [Olin] for damages, direct or consequential and expenses, all as more fully defined by the term 'ultimate net loss' on account of ... Property Damage ... caused by or arising out of each occurrence happening anywhere in the World." Id. at ¶ 19.
(2) "Ultimate net loss" is defined in relevant part as "the total sum which the Insured, or any Company as his insurer, or both, becomes obligated to pay by reason of ... property damage...." Id. at ¶ 21.
(3) A covered "Occurrence" is "an accident or a happening or event or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result in personal injury, property damage or advertising liability during the policy period," and "[a]ll such exposure to substantially the same general conditions existing at or emanating from one premises location shall be deemed one occurrence." Id. at ¶ 21.
(4) Covered "Property Damage" constitutes the "loss of or direct damage to or destruction of tangible property (other than property owned by [Olin] )." Id. at ¶ 21.
Under Lamorak's policies, coverage is "subject" to certain conditions. For example, Olin must pay a premium, and when there is an occurrence, "notice shall be sent [to Lamorak] ... as soon as practicable," defined to mean when "[Olin] has information from which [Olin] may reasonably conclude that an occurrence covered [under the Policies] involves injuries or damages which, in the event that [Olin] should be held liable, is likely to involve [the Policies]." See Lamorak Insurance Company's Response to Olin Corporation's Statement of Undisputed Material Facts in Support of its Motion For Summary Judgment on The Remaining Sites and Lamorak's Counterstatement of Undisputed Material Facts ("Lamorak Counter Remaining Sites 56.1") at ¶¶ 9(b), 11, ECF No. 2263. As to this latter requirement, Olin only has "knowledge of an occurrence" or "knowledge of a suit" if "an executive officer ... shall have received such notice from its agent, servant or employee." Id. at ¶ 10. Olin's "failure to give notice of any occurrence which at the time of its happening did not appear to involve [the Policies], but which, at a later date, would appear to give rise to claims [covered under the Polices], shall not prejudice such claim." Id. at ¶ 9(b).
Endorsement No. 6 of Lamorak Policy EY-8057-011 and Lamorak Policy EY-8057-012 provide in part as follows:
It is agreed that, notwithstanding anything contained herein to the contrary, this policy shall not indemnify the Insured in respect to any claim made against the Insured by reason of any act committed, prior to February 1, 1964.
Olin Counter Remaining Sites 56.1 at ¶ 22.
Olin now seeks coverage from Lamorak under these Policies for the following fifteen Remaining Sites: Assonet, Bethany, Brazier Forest Industry, Central Chemical, Charleston, Crab Orchard, Frontier Chemical-Pendleton, Middletown/Tri-Star, Morgantown Ordnance Works, New Haven, Niagara County Refuse, North Little Rock, Olin Water Services, Pine Swamp, and Wallisville Road.
Olin has entered into settlement agreements with its other excess insurers-London, Continental, General Reinsurance, and Munich Reinsurance-releasing coverage for some of the Remaining Sites (among others). See Third-Party Defendants Certain Underwriters at Lloyd's, London and Certain London Market Insurance Companies' Response to Lamorak Insurance Company's Local Rule 56.1 Statement of Undisputed Material Facts in Support of Lamorak Insurance Company's Motion for Summary Judgment on Its Third-Party Claims at ¶ 16, ECF No. 2240; Third-Party Defendant General Reinsurance Corporation's Response to Lamorak Insurance Company's Local Rule 56.1 Statement of Undisputed Material Facts in Support of Lamorak Insurance Company's Motion for Summary Judgment on its Third-Party Claims at ¶ 16, ECF No. 2251; Continental Casualty Company and Munich Reinsurance America, Inc.'s Response to Lamorak Insurance Company's Statement of Undisputed Material Facts and Counterstatement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 at ¶ 16, ECF No. 2242; Olin Corporation's Counterstatement of Undisputed Material Facts in Opposition to Lamorak Insurance Company's Motion for Summary Judgment on Its Third-Party Claims at ¶ 16, ECF No. 2248.
The Court first addresses Olin's motion to strike Lamorak's expert opinions relating to costs and Lamorak's motion to strike Olin's 56.1 statement. The Court then turns to Olin and Lamorak's motions for summary judgment on the Remaining Sites. Next, the Court considers the motions of Olin, Lamorak, London, Continental Casualty, Munich Reinsurance, and General Reinsurance for summary judgment on Lamorak's third-party claims. Finally, the Court addresses London's motion for summary judgment on its Rule 14 claims.
Olin's Motion To Strike
Olin moves to strike portions of the expert reports and testimony of Lamorak's experts Douglas J. Swanson, Sin Senh, and Kelly Coulon of Roux Associates Inc. (the "Roux Experts" and the "Roux Report") and Scott A. Recker of the Antea Group (the "Recker Reports"). Specifically, Olin moves to strike the experts' opinions that relate to the costs incurred by Olin for the investigation and remediation of contamination at the Remaining Sites.
I. Background
The Roux Report is a joint report authored by Swanson, Senh, and Coulon. See Declaration of Craig C. Martin in Support of Olin Corporation's Motion to Strike the February 9, 2018 Expert Report and Testimony of Douglas J. Swanson, Sin Senh, and Kelly Coulon of Roux Associates and Scott A. Recker ("Martin Motion to Strike Decl.") Ex. A, ECF No. 2224 [hereinafter Roux Report]. Among other things, the Roux Report "evaluate[s] data and provide[s] opinions regarding environmental contamination allegedly caused by Olin" at twelve of the Remaining Sites and addresses "whether Olin was aware prior to 1970 that their site operations were causing the resulting environmental harm." Id. at 1. The Recker Reports similarly discuss, among other things, "[t]he causes of environmental impacts at, around and underneath" the Central Chemical, North Little Rock, and Wallisville Road Sites and, for each of those sites, "[t]he practices at the Site that resulted in the releases of chemicals and the migration of certain chemicals." Id. Ex. B at 1; id. Ex. C at 1; id. Ex. D at 1. Olin does not object to the admission of these opinions.
Rather, Olin objects only to the admission of opinions of Lamorak's experts concerning costs Olin incurred to address contamination at the Remaining Sites. Olin asserts three grounds for its motion to exclude these opinions. First, Olin asserts, Roux and Recker's opinions are irrelevant because the costs they categorized and opined on are not the same as the costs Olin seeks as damages in this case. Second, Olin asserts, the cost analyses are irrelevant because the categories applied by the experts have no legal significance to Olin's damages. Third, Olin asserts, Coulon, who is a professional engineer, is not qualified to offer an opinion as to whether the secondary sources of cost backup information that Olin's expert used to support Olin's damages claim are unreliable sources.
II. Analysis
To be admissible under Federal Rule of Evidence 702, expert opinion testimony must come from someone who is "qualified as an expert by knowledge, skill, experience, training, or education," and whose resulting testimony "will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702 ; see also, e.g., Nora Beverages, Inc. v. Perrier Grp. Of Am., Inc., 164 F.3d 736 (2d Cir. 1998). "The Second Circuit has taken a liberal view of the qualification requirements of Rule 702, at least to the extent that a lack of formal training does not necessarily disqualify an expert from testifying if he or she has equivalent relevant practical experience." In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d 531, 559 (S.D.N.Y. 2004). "Courts have long held that an expert testifying about damages need not be 'trained as an economist.' " Arista Records LLC v. Lime Grp. LLC, No. 06-cv-5936, 2011 WL 1674796, at *16 (S.D.N.Y. May 2, 2011) (quoting In re MBTE Prods. Liab. Litig., No. M21-88, 2008 WL 1971538, at *5 (S.D.N.Y. May 7, 2008) ). However, "[c]ourts in this Circuit have stricken extraneous testimony 'where an expert is admitted under Rule 702 and then purports to offer opinions beyond the scope of his expertise.....' " 523 IP LLC v. CureMD.Com, 48 F.Supp.3d 600, 642 (S.D.N.Y. 2014) (quoting Davis v. Carroll, 937 F.Supp.2d 390, 413 (S.D.N.Y. 2013) ).
"To be admissible, in addition to "rest[ing] on a reliable foundation," expert testimony must be relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; see also Oster v. Goldman, Sachs & Co., 114 F.Supp.3d 110, 125 (S.D.N.Y. 2015). The proffered expert must also demonstrate that there is "a reliable linkage between the facts ... and the conclusions" in his or her report. R.F.M.A.S, Inc. v. So, 748 F.Supp.2d 244, 252-53 (S.D.N.Y. 2010) (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786 ; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). The relevant "task at hand" with respect to Olin's costs is whether Olin is entitled to recover the costs it claims as damages if Lamorak is found liable for breaching its policies.
A. Whether Coulon Is Qualified To Opine on the Reliability of Accounting and Financial Information
Olin argues that Chapter 16 of the Roux Report must be excluded because its author, Kelly Coulon, is not qualified as an expert to offer the cost opinions contained in that chapter. The main conclusion of Chapter 16 is that the "secondary backup documentation" supporting Olin's claimed damages-including accounts payable data, general ledger data, and other records, see Martin Motion to Strike Decl. Ex. E at 2-5-are "not reliable evidence of the actual environmental response costs incurred" at the sites at issue, see Roux Report at 145-46.
Coulon's primary training is not in cost accounting. She graduated from Cornell University with a Bachelor of Science in Biological Engineering. See Declaration of Elaine Whiteman Klinger in Support of Lamorak Insurance Company's Response to Olin's Motion to Strike Portions of the Expert Reports and Testimony of Douglas J. Swanson, Sin Senh, Kelly Coulon, and Scott A. Recker ("Klinger Motion to Strike Decl.") Ex. A at 24:10-12, ECF No. 2246. She then earned a Master of Science in Environmental Engineering from Johns Hopkins University. See id. at 24:13-15. Her professional training is in the areas of "environmental investigation, remediation and restoration of contaminated sites, and wastewater treatment." Roux Report at 3.
Moreover, Coulon has never been qualified by a court to testify on account issues. See Martin Motion to Strike Decl. Ex. G at 30:21-24. She is not a certified public accountant or certified fraud examiner. Id. at 29:11-18. She is not certified in financial forensics. Id. at 29:22-30:15. She has never taken a class, or otherwise received formal training, in accounting, finance, or auditing, and she lacks any formal education in accounting. Id. at 24:18-21, 25:1-15, 26:23-27:19. She has never prepared SEC filings and she has never been involved in any audit behind SEC filings. Id. at 31:12-22. She has never had any role in a corporate accounting audit. Id. at 31:23-32:1.
However, in the course of her career as an engineer, Coulon has "evaluated the nature and extent of contamination, timing of contamination, methods of releases of contamination and fate and transport; estimated costs to investigate and remediate sites across many industries; and evaluated the reasonableness of past and future environmental response costs." Roux Report at 3-4. In this context, a significant portion of Coulon's day-to-day responsibilities include evaluating environmental investigation and remediation costs, and reviewing subcontractor invoices, engineering submittals and bids and cost-estimating. See Klinger Motion to Strike Decl. Ex. A at 25:1-28:24 (Coulon deposition). With regard to cost categorization, Coulon has been involved in similar matters where the same methodology used here has been used to analyze and evaluate environmental costs. See id. at 34:7-20 and 40:11-42:20 (stating that she has reviewed reports made from SAP software in the context of reviewing past environmental response costs and that the methodology she used in this case was similar to the methodology she has used in prior litigation).
Turning next to the opinion Coulon proffers, Coulon opines on the reliability of the sources that Olin's expert, Thomas Zetlmeisl, used to substantiate a spreadsheet tracking costs incurred by Olin (the so-called "Lutz Report"). Specifically, she challenges Zetlmeisl's conclusion that the Lutz Report is reliable and sufficient evidence of Olin's cost claim. She argues that (1) Zetlmeisl was unable to find invoice support for over 50% of the costs in the report and (2) the secondary sources he relied upon do not identify the scope of the services rendered or the relationship (if any) of the services to the environmental response action. Additionally, Coulon opines that the "indemnity" start dates used by Zetlmeisl are incorrect for certain sites because he did not make any determinations regarding the nature of the invoices. Roux Report at 144-51.
It is difficult to discern from Coulon's report what expertise she even purports to rely on with respect to the challenged opinions. She simply asserts that the secondary sources of backup used by Zetlmeisl are not reliable evidence of past response costs because "(1) the scope of services is not known and (2) the relationship of the services to the environmental response action is not known..... None of this information includes the actual invoices that comprise the alleged costs, or the specific scope of the services performed." Id. at 147. She does not, for example, explain that she knows that this evidence of past costs is unreliable because, in her experience reviewing subcontractor invoices, invoices generally contain more detail.
Nevertheless, the Court cannot hold on this record that Coulon's prior experience is entirely irrelevant to the opinions here challenged or that they are otherwise totally outside the bounds of Rule 702. Accordingly, the Court does not exclude Coulon's testimony for purposes of these motions for summary judgment but will hold, prior to trial, a Daubert hearing regarding the admissibility of Coulon's cost opinions.
B. Whether the Cost Opinions Are Unhelpful and Prejudicial
Olin asserts that Lamorak's Roux and Recker Reports are "unhelpful" because they are not directly responsive to the costs that Olin has claimed as damages. Instead of addressing only the costs that Olin actually is seeking to recover, the Roux Experts compiled their own cost information from discovery materials. See, e.g., Martin Motion to Strike Decl. Ex. G (Coulon deposition) at 51:19-24 ("Q: Are you aware that every invoice that was produced in this case is not necessarily the subject of Olin's claims for damages? A: I'm not aware which invoices are subject to Olin's claim and which ones are not."). As a result, Olin contends, there is a "disconnect" between what Olin seeks to recover and what the Roux Experts reviewed, rendering the opinions confusing and misleading. For example, the Roux Report concludes that $11.2 million of the invoices produced in discovery should be categorized as duplicate costs (i.e., costs that are "identical, yet appear separately with different Bates numbers," Roux Report at 9) and $7.5 million of the invoices produced in discovery are unrelated to environmental remediation. Roux Report at 1, 9. However, the Roux Report makes no effort to identify how many of those allegedly "duplicate" or "unrelated" costs Olin is actually seeking.
Olin also objects that the Recker Report on the Central Chemical Site is overinclusive since it evaluates Olin's cost claim "covering the period of 1984 through 2016," Martin Motion to Strike Decl. Ex. B at 13, yet the costs included in Olin's damages claim at Central Chemical begin in January of 2003. Id. at Ex. F, Ex. K.
Since Olin's primary objection to Lamorak's cost opinions is that they are overbroad, the Court declines to strike Lamorak's opinions at this stage in the proceeding. Lamorak asserts that its experts "are prepared to explain and rebut whatever cost claim is ultimately put on trial by Olin." Lamorak Insurance Company's Response to Olin Corporation's Motion to Strike Portions of the Expert Reports and Testimony of Douglas J. Swanson, Sin Senh, Kelly Coulon, and Scott A. Recker ("Lamorak Motion to Strike Mem.") at 20, ECF No. 2245. While it is true that experts must disclose their opinions in discovery, see Fed. R. Civ. P. 26(a)(2)(B), (D), Lamorak's experts have disclosed the relevant opinions (and more). Olin's motion to strike Lamorak's expert cost opinions as "unhelpful" is denied without prejudice to Olin's raising the issue again at trial if and when Lamorak seeks to introduce expert testimony on costs that Olin is not in fact claiming.
C. Whether Lamorak's Categorization of Costs Is Relevant
Finally, Olin argues that the categories into which the Roux Report classifies Olin's costs are irrelevant and therefore should be excluded.
First, the Roux Experts categorized certain costs as related to "Onsite Activities-not Groundwater-Related Response Actions," and other costs as related to "Offsite Activities and/or Groundwater-Related Response Actions." See, e.g., Roux Report at 1 & App'x D. Likewise, Recker categorized "the vast majority of costs" at the North Little Rock site as "onsite soil and sediment" work. See id. at Ex. C at 13-14. According to Olin, the experts placed costs into the onsite and offsite categories based primarily on the location of where the remediation occurred, such that excavation or capping of soils on Olin's property was deemed "onsite," even though these types of onsite remediation were undertaken to prevent offsite property damage. See Roux Report at 8. According to Olin, this simplistic onsite/offsite distinction is not relevant where a cleanup was done to protect the public and to address or prevent offsite impacts at least in part, as all the on-site cleanups at issue here were.
However, Lamorak disagrees with Olin's view of the law. Lamorak has taken the position that costs arising out of remediation of on-site property damage are not covered by its policies. As the Court has previously explained, see Opinion and Order dated April 17, 2018, ECF No. 2176, the testimony of a party's expert must be evaluated within the context of that party's own theory of the case, see In re Pfizer Sec. Litig., 819 F.3d 642, 659 (2d Cir. 2016). Therefore, the Court finds that these categorizations are not irrelevant.
Second, the Roux Report assigns costs to categories such as "Legal," "Regulatory," "Employee Expenses," "Unspecified," and "Unrelated." The "legal" category includes "costs to support or perform legal work regarding [the] environmental response action[s]" taken by Olin. Roux Report at 8-10. The "regulatory" category includes "costs for the oversight regulatory agency ... response costs to oversee and/or implement environmental response actions at the Sites." Id. at 9. The Employee Expenses category includes "Olin employee expenses incurred to further the environmental response action[s]" taken by Olin. Id. The "unspecified" category includes costs for which "[i]nsufficient information" was provided to enable "any further categorization." Id. And "unrelated" includes invoiced costs that the Roux Experts considered to be unrelated to the contamination environmental response actions taken by Olin at the Remaining Sites. Id. at 10.
Olin argues that these categories are irrelevant because Lamorak's policies do not exclude coverage for these categories of costs. Rather, in Olin's view, these are costs are recoverable as "sums which [Olin] shall be obligated to pay by reason of the liability[;] (a) imposed upon the Insured by law, or (b) assumed under contract or agreement by [Olin] for damages, direct or consequential and expenses on account of ... Property Damage." see Martin Motion to Strike Decl. at Ex. N § I; Ex. 0 § I; Ex. P § I. Lamorak does not vigorously defend the relevance these categories. Nevertheless, since Olin has not adequately proven their irrelevance, the Court finds that these categories are relevant to Lamorak's theory of the case and denies Olin's motion to exclude them, without prejudice to Olin's renewing the motion at trial.
Third, the Roux Report uses the categories "Unspecified," "Unrelated," and "Duplicate." Roux Report at 9-10. Olin argues that these categories are "meaningless" because the report has failed to identify what portion of the costs placed in these categories are actually part of Olin's damages claim. Plaintiff Olin Corporation's Motion To Strike Portions of the Expert Reports and Testimony of Douglas J. Swanson, Sin Senh, Kelly Coulon, and Scott A. Recker at 14, ECF No. 2223. A cost is only truly a "duplicate" if Olin is actually seeking to recover both the costs. Similarly, Olin argues it makes no difference if an invoice is "unspecified" or "unrelated" if Olin is not seeking to recover for that invoice. Olin contends that it would be confusing and/or misleading to the jury to present them with a sorting of Olin's expenses that is irrelevant to Lamorak's coverage obligations.
However, experience suggests that testimony that may appear overbroad at this stage may prove to be relevant at the time it is offered at trial. Accordingly, the Court will not exclude the testimony now but will reconsider the matter if and when it is offered at trial, after the Court has had the benefit of hearing testimony on Olin's costs and Lamorak has had the opportunity to tailor its own expert testimony in response.
In sum, for the foregoing reasons, the Court denies Olin's motion to strike Lamorak's cost opinions for purposes of these motions for summary judgment, without prejudice to Olin's renewing these motions at trial.
Lamorak's Motion To Strike Olin's 56.1 Statement
Lamorak for its part moves to strike those portions of Olin's 56.1 statement that: (1) rely on expert opinions; (2) are conclusory; or (3) are argumentative. Lamorak alternatively moves to strike Olin's 56.1 statement in its entirety because it does not comply with the requirement that such statements be "short and concise." See Lamorak Insurance Company's Motion to Strike or Disregard Olin Corporation's Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment on the Remaining Sites ("Lamorak Strike Mem."), ECF No. 2252.
Pursuant to Local Civil Rule 56.1, upon any motion for summary judgment under Federal Rule of Civil Procedure 56, there "shall be annexed to the notice of motion a separate, short and concise statement ... of the material facts as to which the moving party contends there is no genuine issue to be tried." S.D.N.Y. Local Civ. R. 56.1. This rule further requires that "[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) and (b), ... be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." Id. That is, "[t]he principles governing admissibility of evidence do not change on a motion for summary judgment and "only admissible evidence need be considered on summary judgment." Faulkner v. Arista Records LLC, 797 F.Supp.2d 299, 305 (S.D.N.Y. 2011) (internal citations and quotations omitted).
Expert Opinion. Lamorak advances several arguments to strike the portions of Olin's 56.1 statement that rely exclusively on expert testimony.
First, Lamorak argues that although experts can rely on certain inadmissible evidence to render opinions, they cannot disclose otherwise inadmissible evidence to establish facts. See Glowczenski v. Taser Int'l, Inc., 928 F.Supp.2d 564, 576 (E.D.N.Y. 2013) ("Although [an expert] may rely upon certain hearsay in rendering his opinion, he may not cite that hearsay to the jury."); see also Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 678 (S.D.N.Y. 2007) (" Louis Vuitton I"), recommendation adopted in Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 666 (S.D.N.Y. 2007). One example Lamorak provides of an improper use of an expert opinion to admit facts is paragraph 50 of Olin's 56.1 statement: "Olin owned Assonet, located in Freetown, Massachusetts, from 1968-1976, and operated Assonet as a PVC resin manufacturing facility from 1967-1974." Lamorak Strike Mem. at 3. The citations given in support of this paragraph are the expert reports of William Hall and Neal Brody.
Lamorak's conclusion that this statement is unsupported by admissible evidence does not follow, however, since Lamorak has not contended, let alone established, that any of the underlying evidence on which these experts rely is inadmissible. Nor does it appear that many of these predicate facts that Lamorak contends cannot be established through expert opinion are actually in dispute in any material respect. See Transcript dated June 18, 2018 at 49:25-50:2. For example, with respect to Assonet, Lamorak's expert agreed that the Assonet Site is located in Freetown, Massachusetts, that contamination attributable to Olin began in 1968 and continued through 1974, and that Olin manufactured PVC at the facility. Roux Report at 81, 86-87.
"Second, Lamorak argues that Olin improperly relies on expert opinions to establish facts because none of Olin's experts has personal knowledge about how and/or when any of the Remaining Sites came to be contaminated." See Lamorak Insurance Company's Response to Plaintiff Olin Corporation's Memorandum in Support of its Motion for Summary Judgment on the Remaining Sites ("Lamorak Remaining Sites Opp. Mem.") at 16, ECF No. 2261; see also Lamorak Strike Mem. at 4 (contending that Olin cannot rely on Zetlmeisl's opinion to establish when payments were made because Zetlmeisl "did not testify that he has personal knowledge that any payment was made"). "Olin's experts concede that they did not visit any of the Remaining Sites. They certainly were not at the sites when the sites were owned, operated, or used by Olin." Lamorak Remaining Sites Opp. Mem. at 16. Therefore, Lamorak contends, their testimony is not admissible as "factual statement[s]" Id.
However, an expert's lack of contemporaneous personal knowledge does not render his or her opinions inadmissible. While "[s]imply rehashing evidence about which an expert has no personal knowledge is impermissible under Rule 702," Sharkey v. J.P. Morgan Chase & Co., 978 F.Supp.2d 250, 252 (S.D.N.Y. 2013) (quoting Ridge Clearing & Outsourcing Sols., Inc. v. Khashoggi, 2011 WL 3586468, at *2 (S.D.N.Y. Aug. 12, 2011) ), a party can use an expert report to synthesize and digest reams of otherwise admissible evidence, see Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F.Supp.3d 485, 504-07 (S.D.N.Y. 2015) (explaining that it is perfectly legitimate for experts to "synthesize" or "summarize" materials for the purpose of "streamlin[ing] the presentation of that data ..., saving ... time and avoiding unnecessary confusion"). Indeed, Lamorak concedes that "the majority of the 'facts' and contentions of the parties will be presented through expert testimony" if this case reaches trial. Lamorak Remaining Sites Opp. Mem. at 3.
Third, Lamorak argues that the Court should strike references to its own experts as well as Olin's, seemingly suggesting that expert opinion is inadmissible evidence on a motion for summary judgment. See Lamorak Strike Mem. at 5-6; see also id. at 5 ("[M]any of these statements are simply expert opinions and are not facts."). The Court rejects this argument. "The summary judgment standard requires a court to 'consider all relevant, admissible evidence,' " Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016) (citation omitted), and there can be no question that expert opinions, as a general matter, are admissible so long as they meet the criteria set forth in Federal Rule of Evidence 702.
Conclusory Statements. Lamorak also asks the Court to strike conclusory and argumentative statements from Olin's 56.1 statement. The Court can disregard legal conclusions in a Local Rule 56.1 statement. See Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F.Supp.3d 352, 394 (S.D.N.Y. 2015).
Lamorak argues that the statements in Olin's 56.1 statement as to various amounts it has purportedly incurred in "recoverable" costs are legal conclusions, since whether or not any costs are recoverable remains in dispute. See Statement of Undisputed Material Facts in Support of Olin Corporation's Motion for Summary Judgment on the Remaining Sites at ¶¶ 65-66, 104-105, 131-132, 157-158, 178-179, 200-201, 227-228, 252-253, 278-279, 301-302, 330-331, 353-354, 383-384, and 410-411, ECF No. 2221. Similarly, Lamorak argues that the 56.1 statement's numerous references to "relevant occurrence" call for a legal conclusion since whether or not there was an "occurrence" at the sites is one the issues in dispute in this action. See id. at ¶¶ 90, 111, 137, 163, 185, 233, 258, 285, 309, 359, and 389. Finally, Lamorak objects to the statements that the "Lamorak Policies cover Olin's claim for environmental damage" in connection with each of the sites. See id. at ¶¶ 67, 85, 107, 134, 160, 181, 203, 230, 255, 281, 304, 333, 356, 386, and 413. The Court agrees that these statements include legal conclusions and will disregard them to the extent that they assert legal conclusions rather than facts.
Argumentative. Lamorak also identifies a number of statements in Olin's 56.1 statement that are improperly argumentative. See, e.g., id. at ¶¶ 54, 94, 116, 142, 168, 190, 211, 238, 265, 290, 314, 340, 367, and 394 ("Lamorak has admitted that, because of its failure to respond appropriately to Olin's notice letters, 'waiver currently remains a viable argument for Olin in response to [Lamorak's] late defense notice.' "). " Rule 56.1 statements are not argument. They should contain factual assertions ..."
Rodriguez v. Schneider, No. 95-cv-4083, 1999 WL 459813, at *1 n.3 (emphasis in original). The Court agrees and will disregard these and any other argumentative statements in Olin's 56.1 statement.
Short and Concise Requirement. Finally, Lamorak argues that the Court should strike Olin's entire 56.1 statement for failure to comply with the "short and concise" requirement of Local Rule 56.1. See Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248 (S.D.N.Y. 2009) (courts have discretion to either disregard or strike statements that do not comply with the Local Rule's requirements).
However, "[t]he appropriate length of the 'short and concise' statement contemplated by Local Civil Rule 56.1 varies by case complexity," and there is no hard and fast page limit. In re Namenda Direct Purchaser Antitrust Litig., No. 15-cv-7488, 2017 WL 6606629, at *1 (S.D.N.Y. Dec. 20, 2017). Accordingly, courts in this district have denied motions to strike lengthy statements. See, e.g., id. (denying motion to strike 405-paragraph, 134-page statement; opposing statement: 494 paragraphs, 149 pages); Capitol Records, LLC v. Vimeo, LLC, 972 F.Supp.2d 500, 509 (S.D.N.Y. 2013)vacated in part on other grounds, 826 F.3d 78 (2d Cir. 2016) (403-paragraph, 90-page statement). This case is sufficiently complex to warrant the length of Olin's 56.1 statement.
In sum, the Court denies Lamorak's motion to strike Olin's 56.1 statement, though the Court will disregard the argumentative and conclusory statements therein.
Olin's and Lamorak's Competing Motions for Summary Judgment on the Remaining Sites
Olin moves for summary judgment in its favor as to all the Remaining Sites. Lamorak moves for summary judgment on the Middletown, Olin Water Services ("OWS"), Morgantown Ordnance Works ("Morgantown"), Assonet and Brazier sites and for partial summary judgment on the North Little Rock ("NLR") and Wallisville Road sites.
Under Federal Rule of Civil Procedure 56(a), a 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 party asserting that a fact cannot be disputed must support the assertion by either: "(A) citing to particular parts of materials in the record ...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). Where the moving party has documented particular facts in the record, the burden shifts to the opposing party to adduce contrary record evidence sufficient to create a genuine dispute of material fact. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). To do so, the opposing party cannot merely make conclusory assertions to the contrary-it "must proffer admissible evidence that 'set[s] forth specific facts' showing a genuinely disputed factual issue that is material under the applicable legal principles." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (quoting Fed. R. Civ. P. 56(e) ); see also Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986).
Under New York law, Olin "must prove four elements to prevail on a breach of contract claim: (1) the making of a contract; (2) plaintiff's performance; (3) defendant's breach; and (4) damages." Evolution Markets, Inc. v. Alpental Energy Partners, LLC, 221 F.Supp.3d 361, 369 (S.D.N.Y. 2016) ; see 17A Couch on Ins. § 254:11 (policyholder must show "existence of a policy, payment of applicable premiums, compliance with policy conditions, the loss as within policy coverage, and the insurer's refusal to make payment"). That is, the policyholder bears the burden to prove that the insurance contract covers the loss. See Morgan Stanley Grp. Inc. v. New England Ins. Co., 225 F.3d 270, 276 (2d Cir. 2000).
"The rule that insurance policies are to be construed in favor of the insured is most rigorously applied in construing the meaning of exclusions incorporated into a policy of insurance or provisions seeking to narrow the insurer's liability." Ingersoll Mill. Mach. Co. v. M/V Bodena, 829 F.2d 293, 306 (2d Cir. 1987) ; see also Pioneer Tower Owners Ass'n v. State Farm Fire & Cas. Co., 12 N.Y.3d 302, 880 N.Y.S.2d 885, 908 N.E.2d 875, 876-77 (2009) ("The law governing the interpretation of exclusionary clauses in insurance policies is highly favorable to insureds."); id., 880 N.Y.S.2d 885, 908 N.E.2d at 877 (such clauses "are not to be extended by interpretation or implication, but are to be accorded a strict and narrow construction").
In addition to seeking, through its breach of contract claims, past costs covered by Lamorak's Policies through 2016, Olin is seeking, through claims for declaratory judgment, coverage of all covered costs incurred or allocated after 2016 for environmental remediation at the Remaining Sites. See Memorandum of Law in Support of Olin Corporation's Motion for Summary Judgment on the Remaining Sites ("Olin Remaining Sites Mem.") at 25, ECF No. 2220. Lamorak only argues that Olin is not entitled to a declaratory judgment for future costs at the Remaining Sites to the extent that Olin has not met its burden to prove its entitlement to such coverage in the first instance under the Lamorak Policies. See Lamorak Remaining Sites Opp. Mem. at 25. Therefore, Olin is entitled to a declaratory judgment for future costs at any site for which Olin establishes Lamorak's liability under the Policies. See, e.g., Beazley Ins. Co. v. Ace Am. Ins. Co., 150 F.Supp.3d 345, 355 (S.D.N.Y. 2015) ; see also Employers Ins. of Wausau v. Fox Entm't Grp., Inc., 522 F.3d 271, 278 (2d Cir. 2008).
I. Whether Olin Performed
Under the Policies, Olin's notice obligation is triggered when "an executive officer" of Olin "has information from which [he/she] may reasonably conclude that an occurrence covered hereunder involves injuries or damages which ... is likely to involve this policy." Lamorak Counter Remaining Sites 56.1 at ¶ 10. That standard accounts for where that policy sits in a stack of coverage. Olin v. American Re-Insurance, 74 F. App'x 105, 108 (2d Cir. 2003). The Policies also provide that "failure to give notice of any occurrence which at the time of its happening did not appear to involve this Policy, but which, at a later date, would appear to give rise to claims hereunder, shall not prejudice such claim." Lamorak Counter Remaining Sites 56.1 at ¶ 9(b).
Moreover, because notice provisions exist to allow "insurers to make a timely investigation of relevant events and exercise early control over a claim," Commercial Union Ins. Co. v. Int'l Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir. 1987), notice is still adequate so long as "any delay between acquiring that knowledge and giving notice to the excess carrier was reasonable under the circumstances," Morris Park Contracting Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 33 A.D.3d 763, 764-65, 822 N.Y.S.2d 616 (App. Div. 2006) (explaining that "notice requirements are to be liberally construed in favor of the insured").
Lamorak does not challenge the timeliness of Olin's notices pertaining to the Remaining Sites. See Lamorak Remaining Sites Opp. Mem. at 1, 5. Nor does Lamorak actually argue that Olin failed to perform in any other respect. Accordingly, the Court finds that Olin has performed its obligations under the Policies.
II. Whether Lamorak Breached
Lamorak is in breach of its Policies if it has failed to indemnify Olin for costs incurred in connection with covered property damage. In determining whether Lamorak was obliged to cover the costs of Olin's liability at the Remaining Sites, the Court considers each site in turn. However, the Court first addresses several legal issues that are pertinent to multiple sites.
A. Legal Principles
Under the Policies, an occurrence is "an accident or a happening or a continuous or repeated exposure to conditions which unexpectedly and unintentionally result in personal injury [or] property damage ... during the policy period." Lamorak Counter Remaining Sites 56.1 at ¶ 8. Moreover, the Lamorak Policies only provide coverage for "sums which the Insured [Olin] shall be obligated to pay by reason of liability." Olin Counter Remaining Sites 56.1 at ¶ 19.
Therefore, to recover under the Policies, Olin must show for each site: (1) property damage occurred or continued to spread during the policy period; (2) by the time of the policy period of 1970, Olin did not expect or intend the property damage that it was obligated to remediate; (3) Olin is legally liable for certain sums on account of the property damage; and (4) the amount of those sums.
1. Property Damage
Neither Olin nor Lamorak disputes that it is the law of the case that "property damage occurs as long as contamination continues to increase or spread, whether or not the contamination is based on active pollution or the passive migration of contamination into the soil and groundwater." Olin Corp. v. Certain Underwriters at Lloyd's London, 468 F.3d 120, 131 (2d Cir. 2006). Thus, property damage at a site will continue even after Olin ceased its disposal activities, so long as the previously disposed-of contamination continues to increase or spread through any media, including soil, surface or groundwater, or ecological receptors. See id. at 131-132.
However, the parties do have two disagreements regarding the property damage component of Lamorak's liability:
a. Settlements
Olin argues that it also is the law of the case that it does not need to prove actual damages if it reasonably settled with a party to whom it was liable for damage during the policy period. This Court (per Judge Griesa) previously held that when Olin reasonably settles claims that alleged covered property damage, Lamorak's policy is triggered. See Olin Corp. v. Ins. Co. of N. Am., No. 84-cv-1968, 2015 WL 1782194, at *3 & n.1 (S.D.N.Y. Apr. 15, 2015), vacated in part on other grounds, Olin Corp. v. OneBeacon Am. Ins. Co. ("Olin IV"), 864 F.3d 130 (2d Cir. 2017) ("The court has already held that, in light of Olin's reasonable settlement of the NJDEP's [New Jersey Department of Environmental Protection] claim for covered losses during the policy period, Olin is not required to prove the truth of NJDEP's allegations"-that is, that any damage actually occurred during the policy period); see also id. at *3-4 ("OneBeacon argues ... it is entitled to litigate Olin's liability at the BROS Site even after Olin's settlement with regulators.... The court disagrees."); see also Lamorak Counter Remaining Sites 56.1 at ¶ 429(a) ("I'm going to hold that if a claim is made against Olin for liability for contamination damage to property, environmental damage, and if there is a claim that that occurred during the policy coverage period, and if Olin settles that claim, then the insurance company is liable.").
Lamorak did not challenge that ruling before the Second Circuit, even though it appealed other rulings concerning the BROS site, and accordingly, the Court's ruling is now law of the case. See Wright v. Poole, 81 F.Supp.3d 280, 287 (S.D.N.Y. 2014) ("The law of the case doctrine ... bars re-litigation in district court of matters implicitly decided by an appellate court, as well as re-litigation of matters that could have been raised on appeal but were not.").
Lamorak urges the Court to reconsider Judge Griesa's decision. "The law of the case doctrine is ... discretionary and does not limit a court's power to reconsider its own decisions...." Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.' " Id. (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Lamorak argues that reconsideration is warranted here because Judge Griesa's decision was plainly wrong.
Judge Griesa's opinion rested on Luria Bros. & Co., Inc. v. Alliance Ass. Co., Ltd., 780 F.2d 1082 (2d Cir. 1986). To be sure, Judge Griesa's conclusion was an extension of the logic in Luria. In that case, the insurer, like Lamorak, had provided the insured with liability insurance. Id. at 1085. The insurer contested that the insured in fact was liable to the third parties with whom it settled. The Second Circuit held that, in order to establish liability, "[t]he insured need not establish actual liability to the party with whom it has settled 'so long as a potential liability on the facts known to the [insured is] shown to exist, culminating in an amount reasonable in view of the size of possible recovery and degree of probability of claimant's success against the [insured].' " Id. at 1091. The Court separately addressed the question of whether the particular damage that triggered the insured's liability was covered by the insurer's policy. The nature of the damage was not seriously in dispute and the court easily determined that the policy covered liability for that type of damage by looking at the language of the policy. Id. at 1092-93.
Nevertheless, the extension of Luria's reasoning to find that a settlement reasonably entered into suffices to establish not only the fact of liability but also the fact of a particular type of damage triggering that liability is not plainly erroneous. Therefore, the Court declines to exercise its discretion to reconsider Judge Griesa's ruling and finds it is the law of the case that, if Olin reasonably settled claims against it alleging covered property damage in 1970, then Olin is not required to prove that covered property damage actually occurred.
b. Onsite Property Damage
Lamorak argues that remediation of property damage that occurred only on Olin's own property cannot trigger coverage. On the other hand, Olin contends that onsite remediation activities are covered by Lamorak's policies if they are undertaken for the purpose of preventing or stopping the migration of contaminants from onsite sources to third-party property.
Lamorak agreed to indemnify Olin for all sums it is obligated to pay by reason of liability for damages on account of property damage caused by or arising out of an occurrence. See Lamorak Counter Remaining Sites 56.1 at ¶ 6. Lamorak's policies define property damage as the "loss of or direct damage to or destruction of tangible property (other than property owned by the Named Insured)." Id. at ¶ 7.
In interpreting the scope of this owned property exclusion, this Court does not write on a blank slate. In Gerrish Corp. v. Universal Underwriters Ins. Co., considering similar contract language, the Second Circuit found an insurer liable for onsite cleanup costs undertaken "for the purpose of abating seepage to neighboring property" and addressing a "substantial threat to the environment." 947 F.2d 1023, 1030-31 (2d Cir. 1991) (internal quotation marks omitted). In that case, the insured had proven "actual damage to the surface and groundwater and deterioration of the groundwater quality both on and off the [insured's] property." Id. at 1030. In other words, Gerrish does not hold that an insured does not need to prove any actual damage to third-party property to recover damages under an insurance policy containing an owned property exclusion. Rather, Gerrish indicates that if an insured can prove such actual damage to third-party property, then the "damages" that the insured can recover includes on-site cleanup costs undertaken to prevent further damage to neighboring property.
Nevertheless, numerous district courts in this Circuit have found that the owned property exclusion does not apply where cleanup of the insured's property is required to prevent damage to property of a third party or to protect public health, regardless of whether third party property damage has already occurred. See, e.g., Agway, Inc. v. Agway Petroleum Corp., 93-cv-557, 1993 WL 771008, at *8 (N.D.N.Y. Dec. 6, 1993) (the owned property "exclusion does not apply where cleanup of the insured's property is required to remedy or prevent damage to property of a third party or to protect the public health" (emphasis added) ); Savoy Med. Supply Co. v. F & H Mfg. Corp., 776 F.Supp. 703, 708 (E.D.N.Y. 1991) (finding that where work is done to prevent damage to property of third parties, the owned property exclusion does not apply); Kirchner v. Fireman's Fund Ins. Co., 1991 WL 177251, at *8 (S.D.N.Y. Sept. 4, 1991) ("Even if off-site migration had not yet occurred, we do not believe that the standard 'owned property' exclusion ... is applicable to suits alleging 'abatement remedies' designed to prevent damage to the public and third parties."); Boyce Thompson Inst. For Plant Res., Inc. v. Ins. Co. of N. Am., 751 F.Supp. 1137, 1141 (S.D.N.Y. 1990) (if "off-site contamination exists or... the clean-up work was performed to prevent damage to the property of third properties, the owned property exclusion would not be applicable to work done on the property" (emphasis added) ).
There is good reason to follow the reasoning of these other district courts and narrowly construe the exclusion: "[I]nterests in a swift cleanup warrant creating incentive for the insured to stop the pollution as soon as possible," and "if coverage is only triggered when waste seeps onto third-party property, the incentive remains with the insured to delay cleanup until it affects third-party property." Savoy Med. Supply Co., 776 F.Supp. at 708.
Lamorak's cases do not persuade the Court to depart from the well-reasoned decisions of its colleagues. First, Gap, Inc. v. Fireman's Fund Ins. Co., 11 A.D.3d 108, 782 N.Y.S.2d 242 (App. Div. 2004), is easily distinguished. The main question the court resolved in that case was whether the "you" and "insured" in the owned property exclusion applied only to the named insured or also to an additional insured. Second, Castle Village Owners Corp. v. Greater N.Y. Mutual Insurance Co., 64 A.D.3d 44, 878 N.Y.S.2d 311 (App. Div. 2009), involved a broader owned property policy exclusion than the one the Lamorak's policies contain. There, the policy excluded coverage for "property you own, rent, or occupy, including any costs or expenses incurred by you ... for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property." Id. at 46, 878 N.Y.S.2d 311 (internal quotation marks omitted).
Therefore, the Court finds that Lamorak is obligated to indemnify Olin for clean-up work conducted on-site to prevent damage to third-party property.
2. Whether Olin Expected or Intended the Damage
Courts construe "expected or intended" provisions "narrowly, barring recovery only when the insured intended the damages." Continental Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 649, 593 N.Y.S.2d 966, 609 N.E.2d 506 (1993) (emphasis added). The "[r]esulting damage can be unintended even though the act leading to the damage was intentional." Id. Thus, the focus is on whether Olin subjectively expected and intended the specific damage that resulted from its waste-disposal practices. See id.; City of Johnstown v. Bankers Standard Ins. Co., 877 F.2d 1146, 1149-51 (2d Cir. 1989).
Olin argues that Lamorak cannot rely on "newspaper articles, textbooks, and/or industry publications that discuss pollution or waste disposal generally to show the environmental awareness of the general public," or "Olin's membership in the Manufacturing Chemists' Association ("MCA") and attendance at industry conferences" to establish that Olin knew about the hazards of certain wastes at Assonet, Charleston, Morgantown, New Haven, Pine Swamp (based on Swanson's report), and North Little Rock and Wallisville Road (based on Recker's report). See Memorandum of Law in Support of Olin Corporation's Motion for Summary Judgment on the Remaining Sites ("Olin Remaining Sites Mem.") at 13, ECF No. 2220.
a. Collateral Estoppel
Olin first argues that Lamorak is collaterally estopped from re-litigating "the factual finding that general industry knowledge and Olin's membership in trade associations does not show that it expected or intended the property damage." Id. at 13-14. "Under the doctrine of collateral estoppel, 'when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' " United States v. U.S. Currency in Amount of $119,984.00, More or Less, 304 F.3d 165, 172 (2d Cir. 2002) (quoting Schiro v. Farley, 510 U.S. 222, 232, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) ). "Generally, for collateral estoppel to apply, four prerequisites must be satisfied: (1) the issues in both proceedings must be identical; (2) the issue must have been actually litigated and actually decided in the prior proceeding; (3) there must have been a full and fair opportunity to litigate the issue in the prior proceeding; and (4) the resolution of the issue must have been necessary to support a valid and final judgment on the merits." Id.
As an initial matter, the jury in the Five Sites trial did not actually find that "general industry knowledge and Olin's membership in trade associations does not show that [Olin] expected or intended the damage." Instead, the jury found that "[ ]by the time of the policy period of 1970," Olin did not expect or intend the property damage that it was obligated to remediate at the Augusta, Fields Brook, Mcintosh OU2, and Rochester Sites. See Declaration of Craig C. Martin in Support of Olin Corporation's Motion for Summary Judgment on the Remaining Sites ("Martin Remaining Sites Decl.") Ex. 150 (jury verdict sheets), ECF No. 2214. Nor does Olin genuinely argue that the jury "necessarily" decided that broad, evidentiary principle in rendering its verdict. Accordingly, Lamorak cannot be collaterally estopped from relying on materials showing general industry knowledge or Olin's membership in a trade organization.
Lamorak could, however, be collaterally estopped from arguing that the same evidence establishes that Olin expected or intended the damage if the waste disposal practices at any of the Remaining Sites were "identical" to the waste disposal practices at the previously litigated sites.
Lamorak does here rely on some of the same evidence it relied on during the Five Sites trial. In that trial, Lamorak disclosed the report of Robert Karls, who opined that Olin expected and intended the damage it remediated at those sites. Lamorak Counter Remaining Sites 56.1 at ¶ 418. He based his opinion, in part, on industry knowledge about pollution and waste disposal, Olin's membership in chemical industry trade groups such as MCA, and proceedings at the Purdue Industrial Waste Conference related to waste disposal and water damage. See id. at ¶¶ 419, 421. He also testified at trial that the knowledge Olin gained through participation and membership in the MCA and attendance at the Purdue Industrial Waste Conference showed that Olin expected and intended the damage it remediated. Id. at ¶¶ 420-21. Sections of the Recker's reports on North Little Rock and Wallisville-but not the Roux Report-are substantially similar to the Karls Report disclosed as part of the Five Sites litigation. See Lamorak Counter 56.1 at ¶¶ 327-28, 407-08. In drafting his report, Recker confirmed that, where included, these sections were relevant to the sites at issue here. See, e.g., Declaration of Ralph J. Luongo in Response to Olin Corporation's Statement of Undisputed Material Facts and in Support of Lamorak Insurance Company's Response to Olin Corporation's Motion for Summary Judgment on the Remaining Sites and Lamorak's Counterstatement of Undisputed Material Facts ("Luongo Remaining Sites Opp. Decl.") Ex. B at 68:25-71:15, ECF No. 2259. Recker's report also includes sections addressing the specific facts relevant to the North Little Rock Site.
However, Olin does not claim that its waste practices at the sites on which Recker opines were similar to the waste practices at the Five Sites. Olin only contends that the practices at Charleston, North Little Rock, and Wallisville Road Sites are materially indistinguishable from the practices at previously litigated sites. Specifically, Olin asserts that Charleston is materially indistinguishable from Augusta and that North Little Rock and Wallisville Road are materially indistinguishable from Aberdeen. Olin Remaining Sites Mem. at 18. As to North Little Rock and Wallisville, Lamorak was not a participant in the Aberdeen Sites trial and so cannot be collaterally estopped from litigating disputes resolved in that proceeding. See Lamorak Counter Remaining Sites 56.1 at ¶ 446. As for Charleston, Olin cannot establish that its waste disposal practices there were "identical" to those at Augusta simply because at both sites mercury-contaminated wastes from plant operations were disposed of in landfills and/or a retention pond. See id. at ¶¶ 144, 146, 426, 429. In addition, the Roux Report on the Charleston Site relies on different evidence than the Karls Report.
b. Whether Lamorak's Evidence Implies Subjective Knowledge
Olin argues that even if Lamorak is not collaterally estopped from relying on this evidence, the evidence Lamorak proffers cannot establish that Olin subjectively knew and intended that its actions would cause the specific, latent property damage that required remediation. The general publications identified by the experts do not discuss specific property damage resulting from specific waste handling practices at any Olin site. They also do not purport to identify Olin's subjective understanding about its operations. Rather, these publications indicate that "instances of environmental pollution were gaining national attention as they were increasingly reported to the general public in newspapers, magazines, and other general periodicals." Martin Remaining Sites Decl. Ex. 13 at 120 [hereinafter Roux Report]. "By 1950, the technical aspects of surface water and groundwater pollution had been extensively studied." Id."By 1960, the technical aspects of landfills and liquid waste disposal ponds/lagoons had also been extensive studied." Id.
Although these publications may not concern the fine details of the waste handling practices at Olin's various sites, a reasonable juror could find that their discussions of waste handling and pollution in general are applicable to Olin's practices. In addition, while these secondary sources do not directly establish Olin's subjective knowledge, a reasonable juror could infer from them that Olin had such subjective knowledge. Moreover, Lamorak does identify some evidence speaking more directly to Olin's subjective awareness: Olin's participation in MCA activities regarding pollution: "Olin executives frequently participated in MCA meetings where pollution was discussed. Specificall