In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 17-3212 

VARLEN CORPORATION, 

Plaintiff-Appellant, 

v.

LIBERTY MUTUAL INSURANCE COMPANY, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:13-cv-05463 — Joan B. Gottschall, Judge. 

____________________ 

ARGUED DECEMBER 3, 2018 — DECIDED MAY 16, 2019 

____________________ 

Before SYKES, BARRETT, and ST. EVE, Circuit Judges. 

BARRETT, Circuit Judge. Varlen Corporation owned and operated two industrial sites that were found to have significant 

amounts of groundwater contamination related to the sites’ 

operations. When its insurer, Liberty Mutual Insurance Company, refused to indemnify it, Varlen sued. Varlen’s case 

turned on testimony from an expert witness, who was excluded by the district court because he didn’t use reliable 
2 No. 17-3212 

methods. We agree with the district court’s exclusion and affirm its grant of summary judgment to Liberty Mutual. 

I. 

Varlen, an Illinois corporation, owned and operated two 

industrial facilities related to railroad operations during the 

time period relevant to this appeal. At the first, which the parties call the LASI site, Varlen performed operations such as 

plating parts for locomotive engines in chrome. At the second, 

the Silvis site, Varlen’s operations included refueling diesel 

engines. Varlen discovered contamination at both sites. 

The LASI site was equipped with a sump that held 

wastewater from the chrome plater. When the water in the 

sump reached a certain level, a pump would engage, pumping the water to a holding tank. Varlen found a chemical 

called hexavalent chromium contaminating the area around 

the sump. 

At the Silvis site, Varlen discovered two types of groundwater contamination. It found a chlorinated solvent by a tank 

into which metal parts were dipped to degrease them. It also 

found diesel fuel near a large tank where locomotives would 

refuel. 

The contamination at these two sites cost Varlen millions 

of dollars in damages and remediation expenses. Varlen 

sought indemnification from its insurer, Liberty Mutual. But 

Varlen’s policy with Liberty Mutual had an exclusion for any 

property damage arising out of chemical leaks or discharges, 

and Liberty Mutual denied coverage on this ground. 

Varlen sued Liberty Mutual. To overcome the pollution 

exclusion, it pointed to a policy provision stating that, despite 

the exclusion, Liberty Mutual would cover chemical leaks or 
No. 17-3212 3

discharges that were “sudden and accidental.” Lacking direct 

evidence of how the damage occurred, it proffered the expert 

testimony of geologist Daniel Rogers to prove that the contamination of the LASI and Silvis sites occurred suddenly and 

accidentally. 

Rogers testified that the contaminants at the LASI site 

were released because the concrete sump leaked. He opined 

that the releases were “sudden and accidental” because they 

were not intended and occurred in sudden spurts each time 

that the sump failed. When asked about his basis for these 

opinions, he explained that he had experience working with 

sumps and had personal knowledge of these sumps in particular. 

Rogers also testified that the releases at the Silvis site were 

likely “sudden and accidental.” There are two relevant zones 

at the Silvis site: the area around the diesel refueling station 

and the area where the chlorinated solvents were stored. Rogers asserted that the contamination around the diesel refueling area was too large to have occurred by minor leakage. Instead, he testified that the contamination was “consistent with 

overfills of diesel locomotives” and suggested that “tens of 

gallons to hundreds of gallons [] would have been released 

before it was noticed.” He also said that the value of the fuel 

made it unlikely that such a fuel spill would have occurred 

intentionally. Turning to the contamination at the chlorinated 

solvent storing area, Rogers surmised that it was “indicative 

of a drum overturning and suddenly leaking out rather than 

from operations.” He based this opinion in part on the fact 

that the contamination was found around where the solvent 

was stored, not where it was used. 
4 No. 17-3212 

Both parties moved for summary judgment. Liberty Mutual also moved to strike Rogers’s testimony. The district 

court granted the motion to strike, holding that Rogers’s opinions were unreliable and speculative under Federal Rule of 

Evidence 702. It then granted Liberty Mutual’s motion for 

summary judgment. Varlen appealed. 

II. 

Liberty Mutual is entitled to summary judgment against 

Varlen if no reasonable jury could find that the releases were 

“sudden and accidental” at either the LASI or Silvis sites. See

FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255–56 (1986). And Liberty Mutual correctly asserts that 

Varlen has pointed to no admissible evidence that would permit a reasonable jury to make that finding. 

Rogers’s expert testimony is the only evidence that Varlen 

offered as to whether the contamination occurred in a sudden 

and accidental fashion.1 But before Rogers’s expert testimony 

can be admitted, it must be deemed reliable under Rule 702 of 

the Federal Rules of Evidence, which tracks the Supreme 

Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579 (1993). The court must decide that the witness is 

“qualified as an expert by knowledge, skill, experience, training, or education”; the testimony will “help the trier of fact to 

understand the evidence or to determine a fact in issue”; “the 

 1 In its order granting summary judgment against Varlen, the district 

court noted that Varlen “relie[d] exclusively on Rogers’ expert opinions” 

to “ward off Liberty Mutual’s request for summary judgment under the 

[pollution] exclusion.” On appeal, Varlen makes a passing attempt at rebutting the district court’s statement, offering a few conclusory claims and 

theories—none of which are enough to lead us to disagree with the district 

court’s assessment. Varlen’s case rises or falls on Rogers’s testimony. 
No. 17-3212 5

testimony is based on sufficient facts or data” and “reliable 

principles and methods”; and the expert has “reliably applied 

the principles and methods to the facts of the case.” FED. R.

EVID. 702. An expert’s proponent has the burden of establishing the admissibility of the opinions by a preponderance of 

the evidence. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 

705 (7th Cir. 2009). 

The district court determined that Rogers’s testimony did 

not meet these requirements because it was not based on reliable methods or principles. It did not abuse its discretion in 

reaching that conclusion. See Brown v. Burlington N. Santa Fe 

Ry. Co., 765 F.3d 765, 772 (7th Cir. 2014) (“If the court properly 

[followed the Daubert framework], we then review its ultimate decision to exclude expert testimony for an abuse of discretion.”). 

In Rogers’s report and testimony, he asserted that the discharges at the LASI site must have been “sudden and accidental.” He suspected that the contamination occurred in connection with a failure in the sump pump in the 1970s. He 

claimed to base this on his experience with sumps, his site visits, and his knowledge of the sites’ operations. This type of 

evidence is not necessarily unreliable. See Metavante Corp. v. 

Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (“An expert’s testimony is not unreliable simply because it is founded 

on his experience rather than on data.”). But Rogers still 

needed to show how his experience or expertise led to his conclusions. 

Rogers attempted to base his conclusions on inferences 

from qualities of the “plume” of contamination. That is, he 

looked at the size and scope of the contamination and worked 

backward to surmise how it must have occurred. For instance, 
6 No. 17-3212 

Rogers testified that at the LASI site, the contaminant mass 

must have been very large to create a plume with the size and 

concentration of the one at that site. He concluded that the 

contamination must have therefore been sudden and accidental. 

But Rogers failed to explain why this data mattered or 

why his inferences were justified. When pressed specifically 

on the connection between the contaminant mass and the circumstances of the release, he simply stated that the data was 

“an indication” but acknowledged that it was “not conclusive.” He opined that the sump itself had a “sudden and accidental nature.” But it’s not clear what he meant, considering 

that the sump is just a basin in the ground. Rogers did say in 

passing that the contamination concentrations were “not uniform,” but he didn’t explain why that was significant. 

Rogers’s testimony about the Silvis site was equally lacking. He said that the volume of the contamination at the fueling location was inconsistent with “minor leakage” and 

opined instead that it may have resulted from overfills of diesel locomotives. As to the chlorinated solvent storing area, 

Rogers suggested that perhaps a drum got punctured and 

caused the contamination. But Rogers offered no methodology to explain how he drew those conclusions. 

In short, Rogers failed to demonstrate that his conclusions 

were anything more than guesses. To satisfy Daubert, Rogers 

needed to provide an explanation of how the evidence led to 

his conclusions. He had to articulate a justification for his inference that the chemical spills were sudden and accidental 

beyond a simple say-so. If Rogers made an argument based 

on a reliable methodology, then Varlen has not pointed it out, 

either to us or to the district court. And courts do not have to 
No. 17-3212 7

scour the record or make a party’s argument for it. See D.Z. v. 

Buell, 796 F.3d 749, 756 (7th Cir. 2015). The district court did 

not abuse its discretion in excluding Rogers’s testimony. And 

without Rogers’s testimony and report, there is no issue of 

material fact as to whether the contamination occurred suddenly and accidentally.2 See Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986) (“Rule 56(c) mandates the entry of summary 

judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that 

party’s case, and on which that party will bear the burden of 

 

2 This is true regardless of whether Illinois or New York law applies. 

In its opening brief, Varlen took no position on the choice-of-law issue, 

instead arguing that it ought to prevail under either state’s law. In Liberty 

Mutual’s response brief, it asserted that New York law applies. Varlen 

then made the argument in its reply brief that Illinois law applies. Even if 

Varlen has not forfeited this argument, the question is purely academic. 

Under either law, Varlen bears the burden of proving that the exception 

to the pollution exclusion applies. See Santa's Best Craft, LLC v. St. Paul Fire 

& Marine Ins. Co., 611 F.3d 339, 347 (7th Cir. 2010) (noting that under Illinois law, “[i]nsurers have the burden of proving that an exclusion applies,” while insureds “have the burden to prove that an exception to an 

exclusion restores coverage”); Mahl Bros. Oil Co. v. St. Paul Fire & Marine 

Ins. Co., 307 F. Supp. 2d 474, 494 (W.D.N.Y. 2004) (explaining that under 

New York law, “[o]nce an insurer satisfies its burden of proof that the 

claims are within the pollution exclusion, the burden shifts to the insured 

to demonstrate, either through a reasonable interpretation of the underlying complaint or extrinsic evidence, that the discharge was in fact ‘sudden 

and accidental’”). Varlen can’t carry its burden under either law without 

Rogers’s testimony. 
8 No. 17-3212 

proof at trial.”). We thus AFFIRM the district court’s grant of 

summary judgment to Liberty Mutual.3 

 

3 Varlen also suggests in passing that it might have a claim under a 

theory of “wrongful entry ... or other invasion of the right of private occupancy.” This theory is inadequately briefed and we do not consider it.