TCE, and that this TCE contaminated the LeClercg class~area. To show
the latter, Met-Coil must demonstrate how TCE from Third-Party
Defendants’ Ellsworth site wound up in the LeClercq area, i.e., the
existence of a “contamination pathway.” The Court’s August 27 ruling
simply limited Met-Coil to one acceptable theory of a contamination
pathway, a leaking DGSD sewer line, thereby excluding the St. Joseph’s
Creek and groundwater theories.

The Court did not intend to prevent Met-Coil from doing everything
required to show Third-Party Defendants’ liability under this theory.
As noted above, this certainly includes establishing that the pollution
originated with Third-Party Defendants. Therefore, information and
expert testimony concerning Third-Party Defendants use and disposal of
TCE is unquestionably relevant to the “sole and limited issue” of a
leaking sewer line. After all, a sewer line cannot “leak” without
being filled first. Therefore, Third-Party Defendants’ motion with
respect to IV.1 and Iv.2 is denied.

B. Opinion No. Iv.5

Opinion No. IV.5 discusses Environmental Protection Agency
investigations of the Ellsworth site. It concludes that there is
“widespread TCE, PCE, and TCA contamination of these surface water
migration pathways.” Met-Coil argues that this relates to the sewer
line theory by proving that Third-Party Defendants used chlorinated
solvents.

However, assuming that Met-Coil’s expert testimony is convincing,

then Opinions No. IV.1 and Iv.2 should already establish Third-Party



3. Third-Party Defendants’ motion to strike Opinion No. V's
prologue and Opinion No. V.1 is granted.
4. Third-Party Defendants’ motion with respect to Opinion

No. V.2 is denied.

IT IS SO ORDERED.

1 A

Harry D. Leinenweber, Judge
United States District Court



line theory. In response, Met-Coil admits that Opinions IV.6 and Iv.7
do not pertain to the sewer line theory, but insists that the remaining
portions go directly to showing the culpability of Third-Party
Defendants through a leaking Downers Grove Sanitary District
(hereinafter, “DGSD”) sewer line.
A. Opinions No. IV.1, IV.2

Opinions No. IV.1 and IV.2 discuss the use and disposal of TCE at
Third-Party Defendants’ facilities. Opinion No. IV.1 concerns the use
of TCE, tetrachloroethene (“PCE”), and 1,1,1-trichloroethane (“TCA”) at
Third-Party Defendants’ property inside the Elisworth Industrial
District. Opinion No. IV.2 describes how, for several decades, Third~
Party Defendants discharged waste products into a DGSD treatment plant
in the northwest corner of the Ellsworth Industrial Park. This opinion
concludes that it is “likely” that these discharges included TCE, PCE,
and TCA,

Third-Party Defendants note that this Court’s August 27 order
prevented Met-Coil from presenting “any expert testimony of any
kind . . . other than expert testimony on the sole and limited issue of

7

a leaking Downers Grove Sanitary District sewer line.” Since Third-
Party Defendants believe that testimony regarding their use of TCE at
Ellsworth does not concern the “sole and limited issue” of a leaking
sewer line, they seek to exclude it.

In doing so, Third-Party Defendants interpret this Court’s ruling

too broadly. To prove its claims of Third-Party Defendants’ liability,

Met-Coil must establish two things: that Third-Party Defendants used


Defendants use and disposal of TCE, PCE, and TCA. Therefore, for that
purpose, Opinion No. 1V.5 appears redundant. Conversely, the Court’s
admittedly limited scientific expertise cannot fathom how “surface
water migration pathways” concern the sewer line theory. Rather, the
existence (or non-existence) of such pathways seems more relevant to
the excluded St. Joseph’s Creek and groundwater theories. Therefore,
Third-Party Defendants’ motion with respect to Opinion IV.5 is granted.
Cc. Opinions No. V.1 and V.2

In Opinion No. V, Dr. St. John concludes that Third-Party
Defendants bear 93% of the responsibility for the contamination of the
LeClercq class area. Opinion No. V.1 allocates fault based on
groundwater characteristics, while Opinion No. V.2 assigns
responsibility according to the use of hazardous substances. Third-
Party Defendants wish to strike Opinion No. V in its entirety on the
grounds that it does not concern the “sole and limited issue of a
leaking Downers Grove Sanitary District sewer line.”

Although the Court rejects Third-Party Defendants’ reasoning, it
nevertheless grants their request. As noted above, the Court intended
its August 27 ruling to restrict only the acceptable theories Met-Coil
could proceed under, not inhibit its ability to present a substantive
case. Thus, in theory, Met-Coil has every right to allocate a
percentage of fault to Third-Party Defendants based on a sewer-line
theory.

The problem here is that, in Opinion No. V.1, Dr. St. John appears

to have assigned relative fault based on a combination of the


Minute Order Foe (06197)

United States District Court, Northern District of Illinois

5
Name of Assigned Judge Harry D. Leinenweber Sitting Judge it Other
or Magi Judge . than Assigned Judge
CASE NUMBER 00 C7164 DATE 12/31/2003
CASE Teresa LeClercq, et al vs. The Lockformer Company, et al
TITLE
[In the following box (a) inclicate the party fifing the motion, ¢.g., plaintiff, defendant, 3rd party plaintifl. anid (b) state brielly the nature
MOTION: ol the motion being presented.]

DOCKET ENTRY:

() oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due _

(3) oO Answer brief to motion due__._ Reply to answer brief due

(4) Oo Ruling/Hearing on set for at

(5) O Status hearing[held/continued to] [set for/re-set for] on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at _

(7) im) Trial[set for/re-set for] on at

(8) a [Bench/Jury trial} [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CO Local Rule 41.1 OFRCP41(a)\(1) CO FRCP41(a)(2).

(0) so [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Third-Party
Defendants’ motion to suppress portions of an expert report submitted by Met-Coil Systems Corporation
is granted in pat and denied in part.

dl) [For further detail see order attached to the original minute order.]

No notices required. advised in open court Document
‘ . Number
No notices required. snot
nuiber ofnotices
Notices mailed by judge’s stall, JAN 2 200
Notified counsel by telephone date docketed F|
Y | Yocketing to mail notices

Mail AO 450 form,

Copy to judge

Y8S

alate mailed woticw

courtroom
wap depaty’s
initials

UT Cbatelims riveted in

central Clerk's Office nailing deputy initials



permissible sewer-line theory and the impermissible St. Joseph Creek
theory. Dr. St. John reaches the “conclusion that the DGSD pipeline
and/or St. Joseph Creek is the source of this additional contaminant
mass.” Indeed, Dr. St. John infers his belief in a St. Joseph Creek
theory four times throughout Opinion No. V.1. Although this Court
tried to permit testimony based solely on the sewer-line theory to
stand, the Court cannot separate Dr. St. John’s wheat from his chaff.
It is impossible for this Court to tell what percentage of fault Dr.
St. John assigns based exclusively on the sewer-line theory.
Therefore, the Court grants Third-Party Defendants’ motion to strike
Opinion No. V’s prologue and Opinion No. V.1.

Opinion No. V.2 is a different. matter. Indeed, Opinion No. V.2
reaches no conclusion at all, other than to state that “appropriate
data are not available to make an equitable allocation of contribution
based solely on the quantity fo hazardous substance use by the various
parties.” Accordingly, Opinion No. V.2 does not refer or relate to any
impermissible theory. Thus, the Court denies Third-Party Defendants’
motion with respect to Opinion No. V.2.

CONCLUSION

For the reasons stated herein, Third-Party Defendants’ motion is
granted in part and denied in part as follows:

1. Third-Party Defendants’ motion with respect to IV.1 and IV.2
is denied.

2. Third-Party Defendants’ motion with respect to IV.5 is

granted.


* IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TERESA LeCLERCQ, AL LeCLERCQ,
individually, and on behalf of
all persons similarly situated,

Plaintiffs,
Vv.

THE LOCKFORMER COMPANY, a
division of MET-COIL SYSTEMS
CORPORATION, a Delaware
corporation, MESTEK, INC., a
Pennsylvania corporation, and
HONEYWELL INTERNATIONAL, INC., a
Delaware corporation,

Defendants.

THE LOCKFORMER COMPANY, a
division of MET-COIL SYSTEMS
CORPORATION,

Third-Party Plaintiff,
v.

ARROW GEAR COMPANY, AMES SUPPLY
CO., BISON GEAR; DYNAGEAR, INC,
FLEXIBLE STEEL LACING CO.,
MAGNETROL INTERNATIONAL, INC.,
MOLEX INCORPORATED, MOREY
CORPORATION, REXNORD
CORPORATION, TRICON INDUSTRIES,
and LINDY MANUFACTURING COMPANY,

Third-Party Defendants,
Vv.

DOWNERS GROVE SANITARY DISTRICT,
et al.,

Fourth-Party Defendants.

FILED

DEC 3 1 2003

ENWEBER
'T JUDGE

Case No. 00 C 7164

Hon.

Harry D. Leinenweber

LES


. MEMORANDUM OPINION AND ORDER

Third~Party Defendant, Molex Incorporated, and other Third-Party
Defendants (collectively, “Third-Party Defendants”) move to suppress
portions of an expert report submitted by Met-Coil Systems Corporation
(hereinafter, “Met-Coil”). For the reasons stated below, Third-Party
Defendants’ motion is granted in part and denied in part.

I. BACKGROUND

Met-Coil faced two class-actions against it and its subsidiary The
Lockformer Company, the LeClercq and Mejdrech cases, for damages
resulting from trichloroethylene (“TCE”) pollution suffered by class-
members. Rather than proceed to a trial verdict, Met-Coil settled each
case. Met-Coil now demands contribution for the settlement pay out
from Third-Party Defendants, alleging that they share responsibility
for the troublesome pollution. Originally, Met-Coil based its case
against Third-Party Defendants on three theories of liability: a “St.
Joseph Creek pathway theory,” a “groundwater theory,” and a “sewer line
theory.” In an August 27, 2003 Order, this Court limited Met-Coil to
presenting only the “sewer line” theory in the LeClercg action. Ina
December 17, 2003 order, this Court consolidated the LeClercq and
Mejdrech cases into a single action.

Met-Coil now seeks to submit the expert report of Dr. Ronald St.
John, which concerns Third-Party Defendants’ liability for poliution in
the LeClercq class area. Third-Party Defendants object to seven of the
nine opinions in the report (IV.1,..IV.2, IvV.5, IV.6, IV.7, V.1, and

V.2) claiming these portions do not relate to the permissible sewer