UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOYCE MARTIN, Individually and as

Personal Representative of the

Estate of Harry O. Martin,

deceased,

Plaintiff-Appellee,

No. 96-1414

v.

DIAMANT BOART AMERICA,

INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CA-92-2982-3-0)

Argued: May 6, 1997

Decided: May 30, 1997

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and

TRAXLER, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed in part and remanded in part by unpublished per curiam

opinion.

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COUNSEL

ARGUED: Timothy William Bouch, YOUNG, CLEMENT, RIVERS

& TISDALE, L.L.P., Charleston, South Carolina, for Appellant.
James Marcus Whitlark, FEDOR, MASSEY, WHITLARK & BALLOU, Columbia, South Carolina, for Appellee. ON BRIEF: Stephen

P. Groves, W. Jefferson Leath, Stephen L. Brown, YOUNG, CLEMENT, RIVERS & TISDALE, L.L.P., Charleston, South Carolina;

Mary L. Barrier, MORRISON & HECKER, Kansas City, Missouri,

for Appellant. David A. Fedor, Paul C. Ballou, FEDOR, MASSEY,

WHITLARK & BALLOU, Columbia, South Carolina; James B.

Richardson, Jr., SVALINA, RICHARDSON & LARSON, Columbia,

South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Harry and Joyce Martin sued Diamant Boart America ("DBA")

claiming that DBA had illegally dumped hazardous chemicals, contaminating the Martins' property. The case was tried before a jury,

which awarded $31,000 in damages for trespass and $1,000,000 in

punitive damages. DBA appeals, arguing that there was insufficient

factual support for the verdict, that the jury was improperly instructed

as to punitive damages, and that the district court failed to review

DBA's motion for remittitur according to South Carolina law as

required by Gasperini v. Center for Humanities , 116 S.Ct. 2211

(1996). We find that the jury's verdict was supported by the evidence.

We therefore affirm the district court on the issue of liability. The

punitive damages instructions also comported with South Carolina

law. However, we remand the issue of remittitur for reconsideration

in light of Gasperini.

I.

DBA operates a plant in Richland County, South Carolina, which

manufactures engineered diamond products such as saw blades, drill

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bits, and grinding wheels. Hazardous chemicals used as degreasers

are left over from the production process.

In 1990, Harry and Joyce Martin, who lived around 400 feet from

DBA's property, discovered that their well was contaminated with trichloroethylene ("TCE"), tetrachloroethylene ("PCE"), and other hazardous chemicals. Other wells in the area were also contaminated.

The South Carolina Department of Health and Environmental Control

advised the Martins and others to cease using their wells for drinking,

bathing, or cooking.

In early 1992, Harry Martin was diagnosed as suffering from pancreatic cancer. Prior to his death in October 1992, Harry Martin and

his wife filed suit against DBA claiming personal injury and property

damage. At trial, DBA denied using TCE at its plant. Martin countered this contention with testimony from a salesman who had sold

TCE to DBA and with testimony from ex-DBA employees that DBA

had both used and improperly dumped large amounts of hazardous

chemicals.

DBA responded to this evidence with studies which concluded that

DBA was not the source of the contamination of the Martins' property. Indeed, there was conflicting evidence as to whether TCE was

even detected in significant quantities in the samples taken from

DBA's property and samples taken from the property between DBA

and the Martins' property. Martin explained the low level of contamination on DBA's land with expert testimony that the contaminants

had "migrated" from DBA's property over time, and that the low

levels of contaminants resulted from recent changes in DBA's waste

disposal measures.

Following a three-week trial in September and October of 1995,

the jury found for DBA on all personal injury and negligence claims,

but awarded Joyce Martin $31,000 for nuisance and trespass and

punitive damages of $1,000,000. The district court denied DBA's

motion for judgment as a matter of law and DBA's motion for a new

trial or remittitur. DBA appeals.

II.

As an initial matter, DBA contends that there was insufficient evidence to support the trespass verdict. It primarily argues that the testi-

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mony of Dr. Jack Parker, Martin's expert witness, was shown to have

no factual underpinning and that it should not have been admitted

under Daubert v. Merrell-Dow Pharmaceutical, Inc., 113 S.Ct. 2786

(1993). DBA argues that Dr. Parker's testimony was fatally flawed

because his theory of how contaminants had migrated to the Martins'

property from DBA was contradicted by the evidence. For example,

DBA maintains that at most there were low levels of TCE on its own

property and the property between the DBA plant and the Martins'

property. Thus, it concludes that the DBA plant could not have been

the source of TCE and PCE contamination.

However, for every contention raised by DBA, Martin was able to

offer a reasonable explanation or provide evidence to the contrary.

First, Martin proffered evidence which showed that TCE and PCE

were indeed found in DBA's groundwater. She further explained the

absence of hazardous chemicals in the samples taken from the intervening property by noting that those wells were shallow, and that the

chemicals TCE and PCE are "sinkers" which tend to migrate to the

lowest point of the aquifer.

While the facts presented by DBA certainly could have done much

to undermine the weight of Dr. Parker's testimony, his basic theory

of how chemicals migrated to the Martins' property was not inadmissible. Indeed, his "mounding" theory of migration appears to have

some acceptance in the field of hydrogeology. In fact, it was initially

developed in the 1950s by one of DBA's own expert witnesses. We

therefore conclude that the trial court did not abuse its discretion by

allowing Dr. Parker's testimony into evidence. United States v.

Dorsey, 45 F.3d 809, 814 (4th Cir. 1995) (decision to admit or

exclude expert testimony under Daubert reviewed for abuse of discretion).

DBA also contends that the testimony of former DBA employees

as to DBA's dumping of chemical waste should have been excluded

as evidence of past acts under Fed. R. Evid. 404(b). This contention

is meritless. The testimony of the former employees was not, as DBA

alleges, evidence of past acts designed to show that DBA was "once

a polluter, always a polluter." Rather the testimony was necessary to

establish that DBA had dumped large quantities of the hazardous

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chemicals in question and was indeed the source of the contaminants

found on the Martins' property.

As to DBA's other arguments regarding the factual support of the

jury's verdict, suffice it to say that our review of the record reveals

no dearth of evidence to support a verdict for either party. Both parties were able to present their case to the jury, and it was for the jury

as fact finder to assess the complex evidence and reach a verdict.

While reasonable minds may have come to a different conclusion than

the one the jury ultimately reached, we cannot say that no reasonable

juror could have returned a verdict for Martin. Brinkley-Obu v.

Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994). Therefore,

we affirm as to DBA's liability.

III.

Next, DBA complains that the jury instruction as to punitive damages was flawed, and therefore the jury's verdict on this issue must

be reversed. We disagree. While the instructions in this case were

extensive, the fundamental prerequisite for punitive damages was

properly set forth by the district court. The court instructed the jury

that they should award punitive damages only if DBA had acted recklessly, willfully, or wantonly. This comports with the threshold standard for an award of punitive damages under South Carolina law. See

Wise v. Broadway, 433 S.E.2d 857, 859 (S.C. 1993).

DBA further complains that the instruction was erroneous because

it stated that a finding of a willful, wanton, and reckless violation

required an award of punitive damages in some amount. South Carolina, however, is one of the few jurisdictions where this instruction is

correct. See Sample v. Gulf Oil Refinery, 191 S.E. 209, 214 (S.C.

1937); see also Campus Sweater and Sportswear Co. v. M. B. Kahn

Construction, 515 F.Supp. 64, 104 (D.S.C. 1979) (following Sample).

In any event, even if there had been error in this instruction it was

surely harmless. The jury in this case was free to award punitive damages in an amount far less than one million dollars. It is difficult to

imagine that setting the minimum amount of damages at zero dollars

instead of one dollar would have affected the final verdict in the slightest.

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IV.

Finally, we turn to DBA's contention that the district court improperly denied its motion for a new trial or remittitur. In Gasperini v.

Center for Humanities, the Supreme Court clearly instructed that a

district court sitting in diversity must apply state law standards to

determine whether a verdict is excessive. 116 S.Ct. at 2224-25. The

district court in this case denied DBA's motion before Gasperini was

decided, and consequently did not provide an opinion indicating

whether or how it followed South Carolina law when it made its ruling. Because of its greater intimacy with the case, the trial court is in

a preferable position to determine the propriety of damages. Id. at

2225; see also Steinke v. Beach Bungee, Inc., 105 F.3d 192, 198 (4th

Cir. 1997). We therefore remand this case so that the district court

may apply the standards set forth in South Carolina law.

The leading South Carolina case on determining whether punitive

damages are excessive is Gamble v. Stevenson, 406 S.E.2d 350 (S.C.

1991). In that case, the South Carolina Supreme Court set out eight

factors to consider:

(1) defendant's degree of culpability; (2) duration of the

conduct; (3) defendant's awareness of concealment; (4) the

existence of similar past conduct; (5) likelihood the award

will deter the defendant or others from like conduct; (6)

whether the award is reasonably related to the harm likely

to result from such conduct; (7) defendant's ability to pay;

and finally (8) . . . other factors deemed appropriate.

Id. at 354.

On remand, the district court should apply these factors and should

"look to South Carolina cases to determine the range of damages in

cases analogous to the one at hand." Steinke , 105 F.3d at 198. A reasoned decision by the district court following this approach will "reduce the risk of caprice in large jury awards and will assure a

reviewing court that the trial court exercised its considered discretion

under the applicable state law." Id.*

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*In light of the remand on the punitive damages issue, we need not

reach DBA's contention that the jury's verdict exceeded the constitutional standards set forth in BMW of North America, Inc. v. Gore, 116

S.Ct. 1595 (1996).

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V.

We affirm the judgment of the district court as to the issue of

DBA's liability. We remand the issue of punitive damages to the district court for consideration of appellants' motion for remittitur under

South Carolina law.

AFFIRMED IN PART, REMANDED IN PART

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