FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M. AVILA; ARIELLA ADONNAMARIE 

ABBOT; MELISSA LOUISE ABBOT;

JUDITH N. ALVAREZ; AARON

GABRIEL ARLICH; CHRISTINA

MICHELLE ARLICH; JARROD ALAN

ARLICH; JOHN ALAN ARLICH;

MATTHEW J. ARLICH; PAMELA JO

ARLICH, et al. (See Exhibit A of

Notice of Appeal for full list of

plaintiff/appellants),

Plaintiffs-Appellants, No. 09-16455

v.  D.C. No.

W 3:99-cv-03941-SI ILLITS ENVIRONMENTAL

REMEDIATION TRUST,

Defendant,

and

REMCO HYDRAULICS, INC.; PNEUMO

ABEX CORPORATION; WHITMAN

CORPORATION; M-C INDUSTRIES,

INC., Debtor in possession of the

Bankruptcy estate,

Defendants-Appellees. 

1661
DONNA M. AVILA; ARIELLA 

ADONNAMARIE ABBOT; MELISSA

LOUISE ABBOT; JUDITH N. ALVAREZ;

AARON GABRIEL ARLICH; CHRISTINA

MICHELLE ARLICH; JARROD ALAN

ARLICH; JOHN ALAN ARLICH;

MATTHEW J. ARLICH; PAMELA JO

ARLICH, et al. (See Exhibit A of

Notice of Appeal for full list of

plaintiff/appellants),

Plaintiffs-Appellants,

v.

WILLITS ENVIRONMENTAL No. 09-16457

REMEDIATION TRUST; REMCO  D.C. No.

HYDRAULICS, INC., debtor in 3:01-cv-00266-SI

possession of bankruptcy estate;

M-C INDUSTRIES, INC., Debtor in

possession of the Bankruptcy

estate,

Defendants,

ANN FARR; HENSHAW &

ASSOCIATES,

Defendants,

and

PNEUMO ABEX CORPORATION;

WHITMAN CORPORATION,

Defendants-Appellees. 

1662 AVILA v. REMCO HYDRAULICS
DONNA M. AVILA; ARIELLA 

ADONNAMARIE ABBOT; MELISSA

LOUISE ABBOT; JUDITH N. ALVAREZ;

AARON GABRIEL ARLICH; CHRISTINA

MICHELLE ARLICH; JARROD ALAN

ARLICH; JOHN ALAN ARLICH;

MATTHEW J. ARLICH; PAMELA JO

ARLICH, et al. (See Exhibit A of

Notice of Appeal for full list of No. 09-16459 plaintiff/appellants),

Plaintiffs-Appellants,  D.C. No.

3:06-cv-02555-SI

v.

REMCO HYDRAULICS, INC.; M-C

INDUSTRIES, INC.,

Defendants,

and

WHITMAN CORPORATION; PNEUMO

ABEX CORPORATION,

Defendants-Appellees. 

AVILA v. REMCO HYDRAULICS 1663
DONNA M. AVILA; BERNADETTE 

AVILA; FRANCISCO I. AVILA;

CHRISTINE BROWN; MARNIE

CASTILLO; ARLETTA JEAN DRYDEN;

GARY LEE DRYDEN; VALDER

DRYDEN; ARRITA FORD; GARLAND

W. FORD; STEVE G. LEWIS; LOIS

LEWIS; DOROTHY LILES; LISA

MCCANN; CONNIE MCDANIEL; CLAY

MCDANIEL; GLEN D. OLIN; JODI

OLIN; LARIE PHILLIPS; CHRISTINA

RAMSEY; ARIELLA A. ABBOTT;

MARISSA ANNE ALGER; JUDITH N. 

ALVAREZ; ROY ANDREW AMERSON;

AARON GABRIEL ARLICH; CHRISTINA

MICHELLE ARLICH; JARROD ALAN

ARLICH; JOHN ALAN ARLICH;

MATTHEW J. ARLICH; PAMELA JO

ARLICH; FRANK AVILA; MARISSA AVILA;

MICHELLE L. AVILA; RONALD J. AVILLA;

SAMUEL GUTIERREZ AVILA, Jr.; SAMUEL

G.H. AVILA, JR., (See Notice of Appeal for

complete list of plaintiff/appellants),

Plaintiffs-Appellants,

v. 

1664 AVILA v. REMCO HYDRAULICS
WILLITS ENVIRONMENTAL 

REMEDIATION TRUST; REMCO

No. 09-17852 HYDRAULICS, INC.; PNEUMO ABEX

CORPORATION; WHITMAN D.C. No.  CORPORATION; M-C INDUSTRIES, 3:99-cv-03941-SI

INC., Debtor in Possession of the OPINION

Bankruptcy Estate,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

October 6, 2010—San Francisco, California

Filed January 27, 2011

Before: Procter Hug, Jr., Pamela Ann Rymer and

N. Randy Smith, Circuit Judges.

Opinion by Judge Rymer;

Section VI.B by Judge N. R. Smith;

Dissent by Judge Rymer

AVILA v. REMCO HYDRAULICS 1665
COUNSEL

William M. Simpich, Oakland, California, for the appellants.

Collie F. James, Latham & Watkins, LLP, Costa Mesa, California, for the appellees.

OPINION

RYMER, Circuit Judge:

These are consolidated appeals from dismissal of toxic tort

actions against Whitman Corporation. The district court dismissed a number of plaintiffs on statute of limitations

grounds; others for failure to comply with case management

orders; some when their expert’s opinion was excluded; and

those who brought claims for preconception injury and for

intentional infliction of emotional distress on the footing that

those claims would not be recognized under California law.

The court also taxed costs in an order that is separately

appealed. We affirm on all grounds but timeliness of the adult

claims, as to which we reverse. Reversal on this ground moots

the costs award, which we vacate.

I

In 1945, Joe and R.E. Harrah bought land in Willits, California and began operating a machine shop that changed its

AVILA v. REMCO HYDRAULICS 1671
name to Remco Manufacturing Co. in 1961 and later to

Remco Hydraulics, Inc. The seven-acre site was located at

934 Main Street. The facility did “hard chrome plating,” a

process by which a base metal and another substance of a lead

alloy are immersed in a tank of chromic acid, and an electric

current is passed through the solution, causing hexavalent

chromium to adhere to a base metal. Whitman’s predecessor,

Stanray Corporation, bought Remco on August 21, 1968;

Whitman, in turn, sold the company to MC Industries, Inc. on

December 16, 1988. The facility closed in 1995 when MC

Industries declared bankruptcy. 

In 1996, the City of Willits brought a federal action against

Remco alleging that the site was contaminated and requesting

remediation. People of the State of California and the City of

Willits v. Remco Hydraulics, Inc., et al., Case No. CV 96-

00283 SI (N.D. Cal.). A consent decree was entered on

August 22, 1997, later amended on December 22, 2000.

Among other things, the decree established the Willits Environmental Remediation Trust. The Trust has overseen efforts

to investigate and remediate the Remco site since 1997. It has

taken thousands of air, water and soil samples, and published

groundwater monitoring and sampling reports, interim remedial action reports, work plans, and “Fact Sheets” detailing

the background of the facility, environmental investigation

activities, waste removal programs, findings from testing

samples, and remedial actions. 

Donna Avila and 100 others who lived in Willits filed suit

on August 23, 1999 seeking recovery for medical problems

they allege were caused by release of chemicals by Remco.

Avila, et al. v. Willits Envtl. Remediation Trust, et al., Case

No. C-99-3941 SI (N.D. Cal.).1 A second action, Arlich, et al.

1The defendants were Willits Environmental Remediation Trust, Remco

Hydraulics, Inc., MC Industries, Inc., Pneumo Abex Corp., and Whitman

Corp. We refer to them collectively as “Whitman” unless context requires

otherwise. 

1672 AVILA v. REMCO HYDRAULICS
v. Willits Envtl. Remediation Trust, et al., was filed on January 16, 2001. These actions were consolidated in district court

on February 13, 2002. A third action, Nickerman v. Remco

Hydraulics, Inc., was brought in state court on December 23,

2004, and removed. Nickerman was consolidated with Avila

in June 2008.2 Although the operative consolidated complaint

set forth various claims for relief, alleged personal injuries as

a result of exposure to contamination from the Remco site are

at the heart of the litigation and this appeal.

The litigation spanned ten years in district court. Numerous

motions were filed and orders were entered. Not all involved

every plaintiff, of whom there were approximately 1000.

Hundreds settled. The main appeal focuses on seven rulings

that applied to different subgroups, but that resulted in dismissal of all non-settling plaintiffs. The cost appeal is brought

by plaintiffs who were involuntarily dismissed but were held

jointly and severally liable for deposition costs associated

with those who settled.

II

Questionnaires

Case Management Order No. 1, entered April 16, 2001,

required answers to a discovery questionnaire on claimed

exposure to Remco hazardous substances and alleged injuries

from it. Questionnaire Plaintiffs had 270 days to respond. The

initial order advised that sanctions, including terminating

sanctions, could be sought against anyone who failed to

answer in full. At an October 26, 2001 status conference the

court extended the deadline to May 31, 2002. When it passed

without responses, Whitman moved to dismiss. The court

2We refer collectively to all who appeal in the consolidated action as

“Avila” unless context requires otherwise. We will also sometimes refer

to subgroups of plaintiffs by category, e.g., “questionnaire plaintiffs” or

“limitations plaintiffs.” 

AVILA v. REMCO HYDRAULICS 1673
denied the motion on June 17, 2002, and gave Questionnaire

Plaintiffs one more extension to July 15, 2002. Its order stated

that no further extensions would be granted and warned that,

in light of the two extensions already provided, any plaintiff

who failed to submit a response by July 15, 2002 would be

dismissed. 

Meanwhile, at an October 2001 case management conference, the court also ordered responses by January 31, 2002 to

a supplemental questionnaire with five questions on the statute of limitations. When that deadline passed without many

responses, Case Management Order No. 2 was issued extending the time to March 29, 2002 and warning that anyone who

failed to submit a response by that date would be dismissed

with prejudice. On April 28, 2002 the court dismissed 218

Supplemental Questionnaire Plaintiffs who had not submitted

a timely response, and on July 29, 2002, dismissed the 105

Questionnaire Plaintiffs who had failed to respond by July 15.

[1] Avila argues that this was an abuse of discretion, but

we don’t see how. The point was not pressed in district court

as to dismissal of those Questionnaire plaintiffs who failed to

respond at all, and is waived. In any event, the court granted

liberal extensions. Questionnaire Plaintiffs had more than a

year to provide responses; Supplemental Questionnaire Plaintiffs had more than five months to answer five questions.

They were clearly warned that the court would dismiss any

party who failed to file by the extended deadlines. In these

circumstances we are not left with a firm conviction of a

“clear error of judgment.” In re Exxon Valdez, 102 F.3d 429,

432 (9th Cir. 1996) (noting that we review sanctions for abuse

of discretion and will not reverse “absent a definite and firm

conviction that the district court made a clear error of judgment.”).

1674 AVILA v. REMCO HYDRAULICS
III

Prima Facie Order

On December 9, 2004 the district court found that, given

the litigation had been ongoing for five years, it was reasonable to require those plaintiffs who had never lived in Willits,

or who only lived in Willits after December 1988 (when

Whitman ceased operations), to make a prima facie showing

of exposure and causation. The process was memorialized in

Case Management Order No. 4, entered March 1, 2005. It

required written statements setting forth “all facts” supporting

non-resident and post-1988 resident plaintiffs’ claimed exposure, together with a written statement from an expert describing the condition for which recovery was sought, identifying

the chemical to which the plaintiff was exposed, explaining

the route of exposure, opining on causation, and setting forth

the scientific and medical basis upon which the opinion was

based. On October 16, 2006, the court set a December 2006

deadline and on December 6, extended it to February 15,

2007. That deadline was met. Whitman responded on June 22,

2007, moving to strike the report of prima facie plaintiffs’

expert on exposure and causation, Dr. Alan S. Levin. The district court granted this motion on February 6, 2008, finding

that the report was wanting under Federal Rule of Evidence

702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). This left the remaining 41 prima facie plaintiffs unable to show causation, so they were dismissed.3

[2] Prima facie plaintiffs ask us to disapprove the process

because, in their view, this type of order bypasses established

3Many of the 137 plaintiffs originally within this category settled or

were dismissed on other grounds. Levin was unable to provide an opinion

on whether there was a connection between the injuries of 16 prima facie

plaintiffs and Remco contamination, and they were separately dismissed

on June 19, 2007 for failure to make the required showing. This order is

not challenged on appeal. 

AVILA v. REMCO HYDRAULICS 1675
rules of procedure for discovery and summary judgment. A

prima facie order of the sort entered here is sometimes called

a “Lone Pine” order after Lore v. Lone Pine Corp., No. L

33606-85, 1986 N.J. Super. LEXIS 1626 (N.J. Super. Ct. Law

Div. Nov. 18, 1986), in which such an order was issued.4 We

have not directly addressed a Lone Pine order before,

although we have affirmed dismissals in cases where orders

requiring a similar type of prima facie showing were entered.

See, e.g., Claar v. Burlington N. R.R. Co., 29 F.3d 499 (9th

Cir. 1994); Abuan v. Gen. Elec. Co., 3 F.3d 329 (9th Cir.

1993). However, the Fifth Circuit Court of Appeals has considered and approved a Lone Pine order in a similar case that

also raised issues of exposure and injury from toxic emissions. Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir.

2000). We agree with Acuna’s explanation that district judges

have broad discretion to manage discovery and to control the

course of litigation under Federal Rule of Civil Procedure 16.

Id. at 340. In particular, Rule 16(c)(2)(L) authorizes a court

to adopt “special procedures for managing potentially difficult

or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” No basis appears for us to cordon off one type of order

— a prima facie order on exposure and causation in toxic tort

litigation — from the universe of case management orders

that a district court has discretion to impose. We decline to do

so.

[3] Neither does the prima facie process skirt accepted procedure. In a case such as this, Daubert obliges a district judge

to determine at the outset, pursuant to Federal Rule of Evidence 104(a), whether an expert’s testimony will assist the

trier of fact by assessing whether the methodology underlying

the testimony is valid and reliable. 509 U.S. at 592-93. “A

trial court not only has broad latitude in determining whether

4

In California this type of prima facie order is also known as a “Cottle”

order, after Cottle v. Superior Court, 5 Cal. Rptr. 2d 882 (Cal. Ct. App.

1992). 

1676 AVILA v. REMCO HYDRAULICS
an expert’s testimony is reliable, but also in deciding how to

determine the testimony’s reliability.” Elsayed Mukhtar v.

Cal. State Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir.

2002). Thus, a case management order that focuses on key

issues for expert opinion is in aid of the Daubert responsibilities the district judge must discharge. 

[4] Prima facie plaintiffs maintain that, even if a Lone Pine

order may sometimes be appropriate, it wasn’t here because

this case was not complicated, nor did the order conserve

time, expense, or judicial resources as it is supposed to do.

We do not believe the district court abused its wide discretion

in finding otherwise. The case was already protracted, having

been pending for five years when the order was entered; it

involved many plaintiffs, not all of whom were similarly situated, as well as a defendant that got out of the business in

1988; and it raised difficult issues of proof on exposure and

causation. Prima facie plaintiffs had two years in addition to

the five that had elapsed to find experts and develop evidence.

Also, the order was narrowly tailored to apply to those individuals whose opportunity for direct exposure to contaminants released by Whitman was different from others because

they had never lived in Willits or lived there only after Whitman sold the facility. Nor did information called for in the

order appreciably duplicate other avenues such as questionnaires. The questionnaires pertained to generalized claims of

exposure whereas the prima facie affidavits were to set forth

evidentiary facts, and the questionnaire responses themselves

indicated that no analysis of health risks or means of exposure

had yet been done. Therefore, it was not inappropriate to elicit

more specific information through the prima facie process. 

[5] Prima facie plaintiffs also suggest that the order impermissibly made discovery unilateral by directing them to make

disclosures before Whitman had to do so. However, Federal

Rule of Civil Procedure 26(a)(2)(C) gives a district court

authority to determine when — and in what sequence —

expert testimony must be disclosed. Whitman’s responsive

AVILA v. REMCO HYDRAULICS 1677
submissions, though scheduled after plaintiffs’, were on a

similar timetable. Prima facie plaintiffs made no attempt to

depose Whitman’s experts or to obtain a continuance. In these

circumstances, and given seven years to develop a case, we

cannot say that they lacked a full and fair opportunity to marshal facts in support of their position. See Portsmouth Square,

Inc. v. S’holders Protective Comm., 770 F.2d 866, 869 (9th

Cir. 1985).

[6] Finally, prima facie plaintiffs fault the district court for

precluding new fact and expert declarations offered in support

of their prima facie showing after the extended deadline of

February 15, 2007 had passed. These included a declaration

from a percipient witness (Joe Holt), a second declaration

from Dr. Levin, and a declaration from a previously undisclosed expert, Dr. Rash Ghosh. They maintain preclusion was

improper because the prima facie process threatened no such

sanction. The court’s order, however, plainly stated that each

of the non-resident and post-1988 resident plaintiffs was to

file a written statement on or before the deadline setting forth

“all facts” in support of their claimed exposure. The court also

found that much of Dr. Levin’s second (July 26, 2007) declaration contained statements of opinion and explanations of

methodology that could and should have been included in his

original prima facie declaration, and that to the extent it purported to respond to Whitman’s papers, the declaration was

mostly argumentative. Likewise, the court found that Holt’s

declaration contained new evidence — but not newly discovered evidence — that could have been presented by the February deadline. Dr. Ghosh, in turn, opined on a number of

matters directly related to the prima facie showing but had not

previously been identified as a witness relevant to that showing and, even if considered, his opinions were speculative,

based on insufficient facts, and beyond his expertise. Thus,

the new declarations were excluded both because they were

untimely, and because they were not genuinely rebuttal or

otherwise admissible. In this, the court did not abuse its discretion.

1678 AVILA v. REMCO HYDRAULICS
IV

Exposure and Causation Discovery

Discovery on exposure and causation for plaintiffs not subject to the prima facie order was on a different track. On

November 16, 2007, the district court authorized Whitman to

serve the 15 plaintiffs remaining after mediation with discovery on these issues, and ordered them to respond by January

31, 2008. At discovery plaintiffs’ request, the deadline was

extended to March 15. The court instructed these plaintiffs to

provide expert opinions in response to the discovery if they

intended to rely on expert opinions, and warned that if any

plaintiff failed to provide a response, “a negative inference

and/or issue preclusion will result.”

After filing responses as directed on March 15, 2008, discovery plaintiffs later sought to add February 2009 and March

27, 2009 declarations by Dr. Levin that, among other things,

used a different methodology to assess medical causation; a

January 18, 2009 declaration from Dr. Linda Remy, a statistician and epidemiologist, indicating that Willits had more hospital admissions for serious illnesses than the rest of

Mendocino County; and a May 22, 2008 declaration by Dr.

William R. Sawyer, which discussed blood tests and sought

to bolster Dr. Levin’s opinion about dioxin exposure and

injury. The court struck Dr. Levin’s February 2009 report and

March 27, 2009 declarations because both should have been

produced on time. It also found Dr. Sawyer’s May 22, 2008

declaration untimely, noting that no explanation was provided

for why the opinions expressed in it were not expressed in his

March 17, 2008 report and that, regardless, the later opinions

(on dioxin creation and blood test results) could and should

have been furnished by the deadline because they were not

based on any new facts. 

[7] Discovery plaintiffs posit infirmity in the discovery

process because it imposed unilateral expert discovery on

AVILA v. REMCO HYDRAULICS 1679
plaintiffs, but this argument fails for the reasons we have

already explained. More specifically to the discovery process,

they contend they should have had more time, and should

have been allowed to supplement their responses after the

March 15, 2008 deadline. By this time, discovery plaintiffs

had had eight years to develop their case. Although they

emphasize the need to revamp once the court struck Dr.

Levin’s prima facie report on February 6, 2008, the point is

not compelling because discovery plaintiffs did not ask for an

extension. They further contend that evidence presented after

March 15, 2008 was timely because the overall expert cutoff

date was January 18, 2009, but this, too, is unpersuasive. As

the district court explained, expert evidence on exposure and

causation was due by the March 15, 2008 deadline whereas

the parties had until January 18, 2009 to designate experts on

other subjects. The district court is the best judge of its own

orders, see United States v. Angelini, 607 F.2d 1305, 1308

(9th Cir. 1979), and its interpretation is, in any event, a reasonable one. 

[8] Finally, discovery plaintiffs suggest that the declarations as well as the late submission of blood test results5

 were

a supplement to their prior response which, they assert, they

had a right to do under Rule 26(e). However, they do not

claim that these submissions were meant to correct or complete a prior disclosure, see Fed. R. Civ. P. 26(e), and the district court found to the contrary that the new reports were not

merely refinements of previous reports, but were entirely new.

With the defense and the court focused on the exposure and

causation evidence produced on March 15, 2008, and with

trial approaching, it cannot be gainsaid that changing course

at such a late stage would be harmful. We cannot fault the district court’s exercise of discretion in these circumstances.

5Samples were not sent off for testing until the end of February and

results were not obtained by the March 15 deadline. No extension was

sought on this account. 

1680 AVILA v. REMCO HYDRAULICS
V

Rule 702/Daubert Rulings

[9] In California, “in a personal injury action causation

must be proven within a reasonable medical probability based

upon competent expert testimony.” Jones v. Ortho Pharmaceutical Corp., 163 Cal. Rptr. 456, 460 (Cal. Ct. App. 1985).

Plaintiffs must also establish that the substance at issue was

capable of causing the injury alleged (general causation), and

that the substance caused, or was a substantial factor in causing, the specific plaintiff’s injury (specific causation). See,

e.g., In re Hanford Nuclear Reservation Litig., 292 F.3d 1124,

1133 (9th Cir. 2002); Jones, 209 Cal. Rptr. at 462. There can

be no causation if there has been no exposure. Ferris v. Gatke

Corp., 132 Cal. Rptr. 2d 819, 826 n.4 (Cal. Ct. App. 2003).

Federal Rule of Evidence 702 provides that expert testimony is admissible “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue”; the witness is qualified “by knowledge, skill, experience, training, or education”;

and “(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.” District judges are

the gatekeeper for expert testimony to assure that it is both

relevant and reliable. Daubert, 509 U.S. at 592-93.

[10] Avila offered Dr. Levin as her medical and toxicology

expert. He submitted a declaration on February 15, 2007 to

comply with Case Management Order Nos. 4 and 6 (the

prima facie orders), and a March 15, 2008 declaration to

respond to the January 23, 2008 discovery order applicable to

non-prima facie plaintiffs. The district court struck Levin’s

February 2007 report in a February 6, 2008 order; this ultimately led to dismissal of 41 prima facie plaintiffs for they

could not show causation. The court also struck Levin’s

AVILA v. REMCO HYDRAULICS 1681
March 15, 2008 declaration and granted summary judgment

against the ten remaining non-prima facie plaintiffs in a comprehensive order entered June 18, 2009. Together, these Levin

plaintiffs contend that the court abused its discretion under

Daubert. 

Levin’s prima facie submissions opined that evidence that

halogenated hydrocarbon industrial waste products were

burned at the Remco sites over the years “makes it scientifically impossible to conceive that dioxins and PCBs were not

emitted. Stated more succinctly, there is no plausible scientific excuse to ignore the unquestionable presence of dioxins

on the Remco contamination sites.” He also stated that a

groundwater plume containing trichlorethylene (TCE) and

other volatile organic chemicals (VOCs) had spread throughout Willits.6

 Levin did not conduct any soil, air, or water tests

at or around the Remco site, nor did he cite any studies showing dioxin in or around the site. However, Levin had the

blood of four plaintiffs, one of whom was part of the prima

facie process, tested for the presence of dioxin congeners.

From the blood results he extrapolated that all prima facie

plaintiffs were exposed to “excessively high levels” of dioxins, and to an unknown amount of a combination of chemicals

(PCBs, dixoins, TCE) and VOCs that caused their injuries. 

The district court concluded that Levin’s prima facie opinions did not meet the requirements of Federal Rule of Evidence 702. Among other things, the court found that Levin

lacked scientific expertise to state that burning activities could

or did result in the creation of toxicologically significant

amounts of dioxins; there was no actual evidence that dioxins

have been present at the site, and his opinion that burning

industrial waste created dioxins was based on speculation;

6Dr. Levin provided no opinion as to whether prima facie plaintiffs had

been exposed to hexavalent chromium or whether it caused any of their

injuries, although this had been the theory on which the case had been litigated up until then. 

1682 AVILA v. REMCO HYDRAULICS
Levin’s blood analysis was flawed because 80% of the dioxen

congeners were non-detects, yet Levin assumed that nondetected congeners were actually present at the limit of detection; and he failed to eliminate other sources of potential

dioxin exposure, such as a medical waste incinerator, traffic,

cigarette smoke, and burn barrels. Additionally, the court

found there was no scientific support in the documents mentioned in Levin’s declaration for his opinion that a combination of chemicals caused the injuries. Accordingly, it

concluded that Levin’s ultimate opinions were inadmissible.

In his March 15, 2008 declaration Levin stated that review

of documents available at the Willits Trust depository, the

January 15, 1998 Versar Preliminary Removal Site Evaluation

Report, discovery responses and depositions relating to burning activity at Remco, and blood tests, demonstrates that toxic

chemicals were in use at the Remco facilities and leaked out,

contaminating the ground, water, and air of inhabitants in the

area. He opined that the mix of chemicals emanating from the

Remco site contained carcinogens, and immunotoxic and neurotoxic materials. He also noted there are other “possible”

sources of exposure, but “no other proven probable sites that

can be factored into this causation analysis.” In addition,

Levin expressed the opinion that, based on a clinical differential diagnosis,7

 the Remco mix is a biologically plausible

cause compounded by an appropriate temporal association

between the exposure and development of the disease, without confounding factors; therefore, some single chemical or

unique mix of chemicals emanating from the Remco site were

substantial contributors to each of the remaining non-prima

facie plaintiff’s injuries.

7He described the differential diagnosis that he would perform as a fourstep process: identifying the valid presence of disease; establishing a

biologically plausible link to the one chemical or mix of chemicals emanating from Remco; establishing an appropriate temporal association

between exposure and onset of disease; and considering confounding factors. 

AVILA v. REMCO HYDRAULICS 1683
Ruling on Whitman’s motion to strike Levin’s March 15,

2008 report and for summary judgment on exposure and causation, the district court noted that the 2008 declaration presented no new evidence or science in support of Levin’s

dioxin theory. To the extent plaintiffs claim to have new evidence of burning, the court reiterated its earlier finding that

Levin lacks scientific expertise to state that burning activities

could or did result in the creation of toxicologically significant amounts of dioxins. The court also observed that if there

had been exposure, it would be reflected in the blood test

results. For reasons explained in its February 2008 order, the

court found that Levin’s opinions based on blood test results

were still fundamentally flawed even though Levin reduced

by half the level he used for non-detects. The court also

rejected Levin’s opinion on exposure to VOCs through soil

gas volatization because his 2008 theory was the same as his

unsupported 2007 theory. The court again found no facts

showing that the groundwater plume extended beyond the

plume identified and documented by the Willits Trust. It

observed that the sources on which Levin relied to show a

broader plume were preliminary, and do not support Levin’s

claim that the areas of the plume where levels of TCE or

VOCs in the groundwater exceed the EPA’s maximum concentration level for drinking water covered a “large geographic area.” With respect to Levin’s March 2008 opinion

that hexavalent chromium caused certain of the Levin plaintiffs’ injuries, the court found other evidence, in particular, the

2004 Final Public Health Assessment for Abex/Remco

Hydraulics Facility, showed they lived in Willits at a time

when the maximum estimated concentration was five times

less than the threshold for causation. Finally, the court found

that Levin did not distinguish between emissions before and

after December 16, 1988, when Whitman ceased operations,

and that the failure was fatal absent a showing that Whitman

was responsible for post-1988 exposures. Thus, the court

held, Levin’s opinions on exposure are speculative and unreliable. 

1684 AVILA v. REMCO HYDRAULICS
Regardless, even if Levin could establish exposure, the

court concluded that his 2008 declaration failed to show either

general or specific causation. In sum, the court found no relationship between the asserted effects of chemicals and plaintiffs’ injuries.8

 Nor was Levin’s report reliable enough to

support specific causation, because he simply assumed that

causation existed without going through the steps in the differential diagnosis process that his report said he would. Missing evidence of exposure, and general or specific causation,

Levin plaintiffs could not make out a case. Accordingly, the

court granted summary judgment to Whitman against the

remaining non-prima facie plaintiffs. 

[11] All Levin plaintiffs maintain that Dr. Levin met the

minimal education or experiential qualifications to give an

opinion as to whether burning of halogenated hydrocarbons

(solvents) creates dioxins. However, we do not believe the

district court’s assessment was clearly in error. Levin

described himself as “a Physician/Scientist/Attorney,” and

indicated that his areas of scientific expertise include cancer

immunology and biology, basic and clinical immunology, and

medical toxicology. He has degrees in chemistry, but nothing

in the record indicates that Levin had any special training or

knowledge regarding metal working industries such that he

could reliably opine that activities at Remco “must” have created dioxins. Levin plaintiffs rely on Ralston v. Smith &

Nephew Richards, Inc., 275 F.3d 965, 969-70 (10th Cir.

2001), to argue that lack of specialization goes to weight, not

8The court excluded the new article summaries and articles in Levin’s

March 27, 2009 declaration as they should have been produced by the

March 15, 2008 deadline for production of evidence on exposure and causation. It stated: “As they have on numerous occasions, plaintiffs continue

to flout the Court’s orders and deadlines. The Court has repeatedly warned

plaintiffs’ counsel of the consequences of ignoring deadlines, apparently

to no avail.” Nevertheless, the court proceeded to consider whether the

excluded articles establish general causation, and concluded they did not

because they discussed carcinogenic effects of chemicals, while none of

the remaining plaintiffs claimed to have cancer. 

AVILA v. REMCO HYDRAULICS 1685
admissibility, of an expert opinion; but Ralston does not

embrace this proposition without qualification. Rather, as it

states, lack of specialization may go to weight only “as long

as an expert stays within the reasonable confines of his subject area.” Id. We see no abuse of discretion in the court’s

determination that an opinion on the content of waste in the

chrome-plating industry and what flows from it are outside

the areas of Levin’s expertise. For this reason alone, his opinions were properly excluded for lack of qualification. This

being so, we have no need to reach whether Levin’s conclusions are reliable.

Nevertheless, the district court’s analysis on reliability is

well founded. In short: Even considering testimony by several

witnesses that burning occurred on some occasions at Remco,

there is none upon which Levin relied that any particular type

of solvent was used. So far as blood work is concerned, the

lab to which the samples were sent tested for the presence of

17 dioxin congeners. Overall, 80% of the dioxin congeners

were not detected, that is to say, Avila and another sampled

plaintiff had non-detects for 14 of 17, a third test plaintiff had

non-detects for 12 of 17, and Nickerson, 15 of 17. But Levin

assumed that the dioxins were present at the detection limit,

then converted the results to an assumed “lipid-adjusted”

basis without determining from the lab what that basis actually was, and compared those results with results from two

published studies to conclude that the blood test plaintiffs had

high levels of dioxin in their blood and that the signature congener profile showed exposure from a single source. As the

district court found, Dr. Levin’s method of creating a congener profile had no scientific support. See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir.

1995) (relying on an expert’s bare assertion that the methodology employed comports with standard scientific procedures

is insufficient under Daubert). Likewise, Levin’s treatment of

other potential sources of dioxin falls short because it does not

actually consider confounding factors. His February 2007

report failed to consider and rule out other sources at all; his

1686 AVILA v. REMCO HYDRAULICS
2008 report did assert the absence of any other proven “probable” sites, but offered no explanation for why or how he eliminated other sources of dioxin. While an expert opinion does

not necessarily have to eliminate all causes of injury to be

admissible, Levin’s entire theory turned on Remco’s being the

only possible source of the dioxin levels that he assumed were

present in the blood of the four test plaintiffs. 

To the extent Levin’s opinion is premised on exposure to

volatile organic compounds,9 there is no evidence that VOCs

are in the blood of any plaintiff; there is no evidence that

VOCs were present in any air, soil, or water samples, and

Levin did no testing of his own; he did not explain how VOCs

traveled from the groundwater through the soil; and he used

preliminary estimates of the size and scope of the underwater

plume. Similarly, to the extent he opined in his 2008 report

(though not in his 2007 report) that exposure to hexavalent

chromium contributed to injuries of the Levin plaintiffs, it

was unreliable because it relied on the higher maximum exposure level reported in the 2003 draft Public Health Assessment for Abex/Remco Hydraulics Facility instead of the 2004

Final Public Health Assessment for Abex/Remco Hydraulics

Facility. The dose estimates by Dr. Sawyer, another of Levin

plaintiffs’ experts, were similarly unreliable because they, too,

were calculated on the basis of the 2003 draft. 

Levin plaintiffs argue that the district court rejected differential diagnosis as a methodology, but that’s not what the

court did. It explicitly declined to decide whether differential

diagnosis in general was adequate, because Levin did not follow his own four-step procedure. For example, he listed injuries without finding whether those injuries had in fact

occurred, whereas his first step was to “identify the valid

presence of disease.” And he offered no specifics to show a

plausible link between disease and exposure, or between

9As the district court noted, this was a new theory raised for the first

time in 2009. 

AVILA v. REMCO HYDRAULICS 1687
exposure and onset of disease. Nor did Levin’s report “consider” confounding factors; it just dismissed them. Although

Levin cited peer-reviewed articles, there is no indication that

any of them connected either the “mix” of chemicals, or any

single chemical, with the Levin plaintiffs’ injuries. Dr.

Remy’s report doesn’t save the day, for she characterized it

as “preliminary” and it also fails to tie any increased incidence of medical disorders in Willits with any of the hazardous substances at issue. Finally, Levin treated the period from

the early 1950s through 1995 as one continuous block despite

the fact that Whitman stopped operating the facility in

December 1988. While Whitman would be responsible for

chemicals released at Remco prior to then, it would not be

responsible for releases from 1988 through 1995. Thus, Dr.

Levin needed to consider and rule out exposure to Remco

chemicals after 1988, but did not do so.

VI

Statute of Limitations

The court granted summary judgment on statute of limitations grounds as to 15 minor and incompetent plaintiffs to the

extent their claims were for birth defects; 160 adults (limitations plaintiffs), because they failed to show the discovery

rule applied to claims as to which the statute of limitations

had otherwise expired; and Brenda McCann on her action for

the wrongful death of her father, because a judicial admission

disclosed that she knew or should have known about the cause

of his death more than a year before filing.

A

Minor plaintiffs argue that they are entitled to tolling pursuant to California Code of Civil Procedure § 352(a). However,

this argument was not made in district court and is waived.10

10Although minors note that the point was mentioned in an exhibit to

their counsel’s declaration, this did not preserve the issue for the district

court or for appeal. 

1688 AVILA v. REMCO HYDRAULICS
In any event, it is unresponsive to Whitman’s motion for summary judgment, which sought dismissal of birth defect claims.

Such claims involve a different limitations period and are

governed by a different section of the Code of Civil Procedure, § 340.4. This ground was uncontested.

N. R. SMITH, Circuit Judge:

B

On March 13, 2003, the district court granted summary

judgment against all Plaintiffs filing suit after August 24,

2000. We hold that this was error and vacate the grant of summary judgment. The district court correctly held that this issue

may be decided on summary judgment. Summary judgment is

appropriate when the material facts are undisputed and the

moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a). Here, the events and publicity in and around

Willits are undisputed. It is also undisputed for purposes of

summary judgment that Plaintiffs knew of their injuries more

than a year before filing suit. The only issue is a matter of law

—considering the evidence, should Plaintiffs have known of

the cause of their injuries more than a year prior to filing suit.

[12] Under CERCLA’s provisions, a limitations period

does not begin until the date “that [a plaintiff] knows or reasonably should have known” of both the existence and the

cause of the injury. O’Connor v. Boeing N. Am., Inc., 311

F.3d 1139, 1147-48 (9th Cir. 2002). California’s statute of

limitations for personal injury at the time of suit was “within

one year.” Cal. Civ. Proc. Code § 340(3) (2001). Therefore,

summary judgment was proper if the only “reasonable inference that can be drawn is that Plaintiffs knew or should have

known more than one year before filing their claims that the

[Remco] contamination was the cause of their diseases.”

O’Connor, 311 F.3d at 1149-50. In other words, Plaintiffs had

one year from the date that they “should have known” of their

cause of action to file their lawsuits. 

AVILA v. REMCO HYDRAULICS 1689
[13] After detailing events and publicity in Willits and the

surrounding area between 1979 and August 2000, the court

found that “ ‘the only reasonable inference’ to be drawn is

that all plaintiffs knew or should have known by August 24,

2000, one year from the date on which Ms. Avila filed her

suit, that their alleged injuries were caused by the Remco

Facility. Therefore, the Court GRANTS defendant’s motion

for summary adjudication as to the 359 plaintiffs who filed

after August 24, 2000[.]” This is erroneous as a matter of law.

The statute of limitations begins to run on the date by which

the Plaintiffs knew or should have known of their injuries.

Therefore, summary judgment would only be appropriate for

those Plaintiffs filing one year from August 24, 2000—the

date the district court found they “should have known” that

their alleged injuries were caused by the Remco Facility. 

Both parties apparently assumed that the district court

meant that Plaintiffs should have known of their injuries a

year before August 24, 2000, i.e., as of the filing of Avila’s

suit on August 23, 1999. While such an interpretation would

be a valid application of the law, it is contradicted by the facts

articulated in the district court’s order. To begin with, the district court states “after the Avila suit was filed on August 23,

1999, there was substantial resulting publicity about the

health risks posed by the contamination from the Remco site.”

In addition, the district court specifically cited Avila’s health

survey (conducted in September 1999), and Erin Brockovich

and Ed Masry speaking in Willits in August 4, 2000. If Plaintiffs should have known of their injury and its cause as of

August 1999, such publicity would be irrelevant.

Furthermore, holding August 24, 1999 as the date by which

Plaintiffs should have known of the date of their injuries is

not supported by the record before us. Information on Remco

prior to August 1999 focused primarily on legal issues and the

contamination. Very little information indicated that Remco

could be the cause of Plaintiffs’ alleged injuries. Publicity

concerning the Remco contamination and that it was likely

1690 AVILA v. REMCO HYDRAULICS
the source of that injury must have been so pervasive as of

that date that the only reasonable inference is that Plaintiffs

should have known the cause of their injury. The record

before us simply does not support such an inference. The district court stated that 

it is plausible that many residents in the City of Willits remained unaware for a long period of time of

the health risks caused by the contamination by the

Remco plant, particularly because, as plaintiffs note,

many local newspaper articles specifically rejected

any allegations of health risks in other reports.

As the court noted, it was only after Avila’s suit that there

was considerable publicity about the health risks, although the

publicity was still equivocal. For example, after Avila’s filing

the local paper reported that Avila and others were suing for

“medical monitoring” because the children at Blosser Elementary were “always getting sick” and that Avila and others

wanted the school district to test the water at Blosser. Followup articles claimed chromium contamination was limited

to a few areas on the Remco site and confirmed that the water

at Blosser Elementary was safe. 

The first discussions about health problems actually being

caused by Remco occurred just prior to the October 19, 1999

town meeting. For the first time there was an extensive discussion of the contamination, methods of exposure, and the

apparently large numbers of people in the town with cancer.

Reports of the October 19, 1999 town meeting, however,

noted that it was clear that no one knew the extent of the contamination. In November and December 1999, the newspaper

noted that health surveys were planned, but did not discuss

the types of injuries associated with chromium, except cancer.

A January 15, 2000 meeting focused on health issues—

specifically, the incidences of cancer, hysterectomies, birth

defects, and nosebleeds. Avila presented findings from her

AVILA v. REMCO HYDRAULICS 1691
health survey, and an attorney spoke about the hazards of

chromium contamination. However, newspaper reports

pointed out that many allegations were made, but not only

were they scientifically lacking, some had been scientifically

contradicted.

After the January meeting, articles and meetings were more

numerous and more focused on health issues, and the public

debate became more widespread. The news and health studies

continued to be equivocal and contradictory. However, the

news stories show that health concerns were at the forefront

of the public debate. For example, in January and February

various cancer studies found no statistically significant

increase in cancer rates in Willits. The draft Preliminary

Endangerment Assessment (PEA) claimed that the health

threat from Remco contamination was insignificant, but a

technical review noted that the study showed “that there are

potential long-term effects off-site, particularly if residents are

exposed to contaminated ground water.” The PEA gave specific information about various paths of exposure and the

attendant risks, although not all were fully explored. It also

had statistics on cancer and general health risks based on the

residence of the individual. Residents and citizen groups called for epidemiological studies to determine the health effects

of the contamination. 

Public events also became more numerous. Meetings with

attorneys for “all persons who have an interest” in the Remco

contamination, announced by large paid advertisements, were

held on April 15, 2000 and June 10, 2000. On May 18, 2000,

the town held a meeting regarding the PEA, and on July 14,

2000, a Citizens’ Advisory Committee meeting addressed the

health hazards of even low levels of toxins. In addition, the

state Department of Health Services spent three days in Willits talking with concerned citizens. In July, it began a health

survey of past and present health risks associated with the

contamination, which was slated to take between three

months and a year to complete. 

1692 AVILA v. REMCO HYDRAULICS
Coverage of the possible health problems in Willits also

became more widespread during this time.11 The Santa Rosa

Press Democrat began to carry stories of the contamination,

and the Ukiah Daily Journal increased its coverage. The San

Francisco Chronicle also covered the contamination, specifically the health effects, in a large multi-page story “A Town

Diseased and Torn.” The hazards of chromium exposure

gained nationwide attention beginning in March 2000, with

the release of the movie Erin Brockovich. Indeed, one article

compared the situation in Willits with the movie. It noted the

health problems Brockovich discovered in Hinckley, California (stomach ulcers, miscarriages, hysterectomies, kidney disease, etc.) and states that “chromium 6 is a deadly poison.” As

the district court noted, Brockovich became involved in the

Willits contamination soon after the movie was released, even

holding an information session in Willits on August 4, 2000.

[14] The ever-increasing interest in health issues associated with the Remco contamination (evidenced in the excerpts

of record on appeal) demonstrates that by August 24, 2000,

people with a reasonable degree of awareness should have

known that contamination from Remco was a serious health

concern and made further inquiry. Therefore, Plaintiffs should

have known that Remco was the likely cause of their injuries

no later than August 24, 2000. However, not having the full

record before us, we decline to determine a precise date by

which they should have known. We therefore (1) hold that as

a matter of law, the events leading up to August 24, 1999

were insufficient for the court to conclude “the only reasonable inference” was that Plaintiffs should know of their cause

of action as of that date, and (2) vacate the court’s grant of

summary judgment dismissing all claims filed after August

24, 2000.

11This is significant because not all plaintiffs lived in Willits at this

time. 

AVILA v. REMCO HYDRAULICS 1693
C

[15] John Harrington died on October 10, 1992, of kidney

cancer. His daughter, Brenda McCann, filed a wrongful death

action on January 21, 2002. Although McCann asserts that

she assumed until the spring of 2001 that her father’s cancer

and death were attributable to smoking, the discovery rule

does not save the wrongful death claim because her individual

complaint, filed on August 23, 1999, avers that hexavalent

chromium was a known carcinogen. Also, she indicated that

it was questions about her family’s health history and cancer

that led her to believe that her father’s cancer had been caused

by exposure to Remco chemicals; but similar questions were

in Avila’s health survey, in which McCann participated. As

such, she knew or should have known that cancer could be

related to Remco more than a year before she filed. Accordingly, the court did not err in granting summary judgment on

her claim.

VII

Preconception Claims

[16] Thirty-eight plaintiffs seek compensation for injuries

allegedly caused by the chemical exposure of a parent, grandparent, or great-grandparent, before they were conceived. The

district court concluded that Whitman owed no duty of care

to these subsequently conceived offspring. The court

acknowledged that a preconception tort cause of action was

recognized in Turpin v. Sortini, 643 P.2d 9546 (Cal. 1982),

but correctly, in our view, believed that California would not

extend the tort to these particular claims. In Turpin, a medical

care provider negligently failed to discover that Turpin’s oldest daughter suffered from an hereditary ailment; as a result,

Turpin had another child afflicted with the same condition. In

this context, the court found that a preconception claim was

cognizable. Since then, however, Turpin has been limited to

its facts. See, e.g., Foy v. Greenblott, 190 Cal. Rptr. 84, 93-94

1694 AVILA v. REMCO HYDRAULICS
(Cal. Ct. App. 1983) (construing Turpin to permit preconception claims only where defendants failed to diagnose and

warn parents of the probability an infant will be born with a

hereditary disability). Hegyes v. Unjian Enter., Inc., 286 Cal.

Rptr. 85 (Cal. Ct. App. 1991) (Cal. Ct. App. 1991), upon

which preconception plaintiffs rely, is not to the contrary. It

notes that no duty has been found, nor has any liability been

imposed, in a preconception negligence case where the defendant was not a medical professional or product liability manufacturer. Id. at 89. This remains so to this day. As Whitman

provided no goods or services related to the reproductive process, we cannot say that it owed a duty to subsequently conceived offspring.12

VIII

Claims for Intentional Infliction of Emotional Distress

[17] Avila also brought a claim for the intentional infliction of emotional distress, on which the district court granted

summary judgment for lack of a showing that Whitman actually knew of these particular plaintiffs. She argues that this is

wrong because Whitman spilt chemicals in the middle of

town and knew what it was doing to the residents. However,

the district court’s conclusion follows from Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993), the controlling California authority. Potter made clear a plaintiff

must establish that the defendant engaged in egregious conduct directed toward the plaintiff. In so holding, the California

Supreme Court rejected essentially the same argument Avila

advances here, that the defendant “had to have realized that

its misconduct was almost certain to cause severe emotional

distress to any person who might foreseeably consume the

12On appeal, preconception plaintiffs propose a negligence per se theory

based on California law prohibiting pollution. See Cal. Health & Safety

Code § 5411. However, no such argument was made in district court and

we will not consider it now. 

AVILA v. REMCO HYDRAULICS 1695
water and subsequently discover the facts.” Id. at 820. This

did not satisfy the knowledge requirement in Potter, and

doesn’t here.

IX

Costs

Non-settling plaintiffs separately appeal two aspects of the

district court’s award of costs: taxing costs associated with

plaintiffs who settled their claims, and imposing joint and several liability. This issue is mooted by our reversal on the statute of limitations.

X

Conclusion

We conclude that the district court had discretion to require

responses to questionnaires, responses to discovery, and a

prima facie showing on exposure and causation as to selected

plaintiffs, and to enforce its orders by dismissal when

responses were not forthcoming by extended deadlines. Likewise, the court had discretion to find that Avila’s expert on

exposure and causation lacked expertise to opine on whether

burning solvents at Remco could or did result in the creation

of toxicologically significant amounts of dioxins. In any

event, the district judge had latitude to exercise her gatekeeping responsibilities under Daubert by excluding opinions that

were not supported or reliable. 

[18] The court did, however, err in granting summary

judgment on statute of limitations grounds as to the adult

plaintiffs. As California law does not extend to the type of

claim for preconception injury brought by certain plaintiffs, or

to a claim for intentional infliction of emotional distress

against a defendant that didn’t target the particular plaintiffs,

the court properly dismissed both of these claims. 

1696 AVILA v. REMCO HYDRAULICS
Finally, the costs award is moot, as we have reversed on the

statute of limitations. We therefore vacate it.

AFFIRMED IN PART; REVERSED IN PART;

VACATED IN PART.

RYMER, Circuit Judge, dissenting as to Section VI.B.:

Timeliness of the adult claims hinges on the discovery rule.

Under the California statute of limitations, adults had one year

from the date of injury to bring their action. They concede

their injuries occurred outside that period. Instead, adult limitations plaintiffs submit, they did not know, and should not

have known, of the facts giving rise to their cause of action

earlier than a year prior to filing. Thus, in their view, the discovery rule is triggered and either they should win outright or,

at a minimum, they have raised triable issues of fact that

require a trial. 

We considered similar issues in O’Connor v. Boeing N.

Am., Inc., 311 F.3d 1139 (9th Cir. 2002). There, plaintiffs

alleged that hazardous substances released from nuclear and

rocket testing facilities at Rocketdyne caused their latent illnesses. Recognizing that the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980 (CERCLA), retains state statutes of limitations, we held that CERCLA nevertheless establishes a federal standard for when

delayed discovery of a plaintiff’s claims will toll the California statute of limitations because the federal standard is more

generous than the state rule. The federal standard turns on

whether plaintiffs knew or should have known more than one

year before filing that contamination was the cause of their

injuries.

It is undisputed for purposes of summary judgment that

limitations plaintiffs did not know of their claims more than

AVILA v. REMCO HYDRAULICS 1697
a year before they filed. Therefore, the question is whether

they reasonably should have known of them. A two-step analysis guides this determination: “First, we consider whether a

reasonable person in Plaintiffs’ situation would have been

expected to inquire about the cause of his or her injury. Second, if the plaintiff was on inquiry notice, we must determine

whether [an inquiry] would have disclosed the nature and

cause of plaintiff’s injury so as to put him on notice of his

claim.” Id. at 1150 (internal citation omitted). The objective

is “to evaluate when a reasonable person would have connected his or her symptoms to their alleged cause.” Id. Plaintiffs bear the burden of proving entitlement to the discovery

rule.

In O’Connor, plaintiffs argued that the one-year limitations

period did not begin to run until they discovered their claims

when UCLA released an epidemiological study concluding

that employees at one of the defendant’s facilities were at

increased risk of cancer. They pointed out that there was publicity before the UCLA study about other causes of cancer.

The defendants (and the district court, applying the California

“suspect or should suspect” test), on the other hand, believed

that reports of contamination at the Rocketdyne Facilities, and

news reports of contaminant studies at those facilities, nullified any suspicion that other causes might have been the

source of their illness. We disagreed, holding that whether

plaintiffs were on inquiry notice, in light of the evidence presented, was fundamentally a question of fact. Id. at 1154.

Among other things, we noted that until the UCLA findings

were released, one could reasonably infer that plaintiffs relied

on public statements that there was no immediate health threat

to the community, and that a reasonable plaintiff would have

imputed the cause of illness to sources other than the Rocketdyne facilities. Under these circumstances, we also thought

there were triable issues of fact as to when plaintiffs could

have tested the potential causes of their diseases so as to disclose their nature and cause. Thus, we concluded, a jury must

decide whether to impute knowledge of the contamination to

1698 AVILA v. REMCO HYDRAULICS
plaintiffs, whether they were on inquiry notice, and when they

had the means to discover the facts to support their claim.1

In light of O’Connor, limitations plaintiffs argue that the

district court in this case erred in relying on the mere existence of media reports which could not furnish them with constructive knowledge of what the reports said.2

 They contend,

in addition, that the articles were equivocal in what they said

about the harm caused by Remco, like the articles in

O’Connor. Further, many of the limitations plaintiffs aver

they did not subscribe to newspapers, didn’t pay attention to

local news, and were unaware of being at risk from Remco

contamination; they did not know about and had not attended

public meetings regarding any contamination caused by

Remco; and they hadn’t seen or heard of any legal documents

or notices about contamination posing a health problem. A

number said they learned that contamination might be a cause

of their health issues from a friend or family member, and

some said they learned from a newspaper or meeting, within

the year. Finally, limitations plaintiffs say that public agencies

and the Willits Trust gave assurances there was no cause for

concern. 

1We upheld summary judgment against a number of plaintiffs who filed

before release of the UCLA report but who offered no evidence of facts

that they contended put them on notice. 

2They also rely on Nelson v. Indevus Pharmaceuticals, Inc., 48 Cal.

Rptr. 3d 668, 671 (Cal. Ct. App. 2006), holding that suspicion necessary

to trigger the discovery rule cannot be imputed and that the plaintiff’s duty

to investigate does not begin until the plaintiff actually has a reason to

investigate. This just restates the California rule, articulated in Jolly v. Eli

Lily & Co.,751 P.2d 923, 927-28 (Cal. 1988), however, and isn’t controlling under the federal standard that applies to this case. Limitations plaintiffs also point out that in 2003 California enacted a statute specifically

providing that “[m]edia reports regarding the hazardous material or toxic

substance contamination do not, in and of themselves, constitute sufficient

facts to put a reasonable person on inquiry notice that the injury or death

was caused or contributed to by the wrongful act of another.” Cal. Civ.

Proc. Code § 340.8. But there is no need to consider the effect of this statute here, because the district recognized media reports alone would not

suffice. 

AVILA v. REMCO HYDRAULICS 1699
Whitman produced evidence of hundreds of newspaper

articles in the Willits News, the Ukiah Daily Journal, and The

Press Democrat starting in 1979 that discussed Remco, chromium, and contamination. The district court considered these

articles, but did not rely solely on them. In addition, the court

considered the fact that public meetings were held on April

17, 1997, October 19, 1999, and January 15, 2000 where

Remco contamination, the cleanup, and possible health risks

to the community were discussed. Also, many Willits residents, including some of the plaintiffs or their relatives, were

individually warned about exposure to Remco contamination.

For example, in March 1991 the County of Mendocino

Department of Public Health posted a sign at residences, a

school, and a hospital in Willits directing those who owned or

operated a water well within 1000 feet of Remco not to drink

water from the well until it was tested for contamination.

Other notices were given in December 1997, January 1998,

July 1998, and August 1999. 

The district court further took into account publicized lawsuits regarding Remco-related contamination. The first was

the City’s 1996 suit against Remco that resulted in a consent

decree and formation of the Willits Trust.3 The Willits Trust

established a document depository at the Willits Library to

make documents relating to Remco contamination available

to the public. The Trust also set up a community hotline for

information and, starting in June 1998, distributed fact sheets

about the contamination. The Avila action was brought on

August 23, 1999 and there were public notices, meetings, and

newspaper articles about the suit both before and after it was

filed. Shortly after this, in September 1999, Donna Avila conducted a survey on the health of all Willits citizens within a

half mile radius of the Remco plant. The survey sought information about contamination and any resulting health effects.

3Another suit was brought in the 1990s, alleging that Forest Hernandez

died as a result of ingesting water contaminated by Remco. 

1700 AVILA v. REMCO HYDRAULICS
And she spoke about health concerns at a public meeting in

October 1999. 

The court held that although none of these sources by itself

would be sufficient to impute knowledge to limitations plaintiffs, the aggregation of information indicates that at least

some of them should have known about the Remco contamination and health dangers it posed. Set against this, the court

found the declarations they submitted conclusory and inadequate to carry their burden of showing they lacked any reason

to know their injuries were caused by Remco contamination.

Although the court believed it was plausible that many residents were unaware of the health risks for a long time, in its

view it would be unreasonable to infer that this remained so

once the Avila suit was filed. Accordingly, summary adjudication was granted as to those plaintiffs who filed after August

24, 2000.4

I agree that a reasonable person in the Willits community

of 5000 residents, given this evidence as a whole, could have

been expected to inquire about the cause of injury no later

than the immediate aftermath of the Avila lawsuit. See

O’Connor, 311 F.3d at 1150-51. Unlike the plaintiffs in

O’Connor, who contended it was unreasonable to infer they

should have inquired about whether contamination caused

their illnesses until the results of the UCLA study became

public, limitations plaintiffs point to no similar fact — or

pending study on which they were waiting — that would have

put them on notice within a year of their filing. 

Even if they should have inquired, limitations plaintiffs

maintain that it would have led to naught because the news

reports were inconclusive on whether chemicals released by

4The Arlich action was not filed until January 16, 2001. More than a

year earlier, Avila and a hundred others filed suit, her health survey was

taken, and health concerns arising out of Remco contamination were

publically discussed. 

AVILA v. REMCO HYDRAULICS 1701
Remco caused their harm. However, they actually brought

suit based on the same mix of information. That is, they did

not wait for a definitive study as the O’Connor plaintiffs did,

but made the connection between symptoms and cause on tips

that there “may” be one. Had they pursued the question before

a year before filing, the same information that satisfied Avila

was there to discover. 

In sum, evidence that limitations plaintiffs lacked subjective knowledge that they were at risk from Remco contamination does not carry their burden of establishing a triable issue

of fact with regard to whether the discovery rule applies. They

are charged with knowing facts they would have discovered

upon inquiry, and thus with knowledge that many residents of

Willits believed they had been injured by the release of hazardous substances at Remco. As this was discoverable no later

than the filing of the Avila suit and its immediate aftermath,

the only reasonable inference is that limitations plaintiffs

knew enough to proceed more than a year before they did. 

I would, therefore, affirm on this issue as well. Given my

position on this issue, the costs award would not be moot. I

would uphold it as well, in that the district court did not abuse

its discretion.

1702 AVILA v. REMCO HYDRAULICS