915 F.3d 36
1st Cir.2019Background
- Mother Brook (Boston) was contaminated by PCBs; MassDEP ordered remediation and issued Notices of Responsibility in 2007. Thomas & Betts (upstream owner) led remediation; New Albertson's (downstream supermarket successor) participated under a joint remediation agreement.
- Thomas & Betts incurred ~$12.7M in response costs; New Albertson's incurred ~$791k and paid Thomas & Betts an interim $2.924M under the joint agreement.
- Multiple third parties (Alfa Laval, Charter School Parties, Dampney, Yukon, etc.) were joined under Mass. Gen. Laws ch. 21E §4/§4A claims for reimbursement/contribution. Trial occurred in 2015; jury returned a special verdict allocating shares of response costs.
- Jury findings: Thomas & Betts entitled to $12.7M in costs; Alfa Laval liable for 14% and Charter School Parties for 1% of that amount; New Albertson's liable to Thomas & Betts for none. For New Albertson's claim, jury found New Albertson's incurred $791k and Thomas & Betts liable for 75% of that but New Albertson's not causative.
- District Court entered judgment on the verdicts, awarded prejudgment interest (under Mass. Gen. Laws ch. 231 §§6B or 6H) and awarded New Albertson's attorney and expert fees under Mass. Gen. Laws ch. 21E §15 ($1,747,188.59). Appeals followed and were consolidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred by refusing to instruct jury on Thomas & Betts’ breach‑of‑contract claim (failure to provide access / cooperate in good faith) | Thomas & Betts: record contained more than a scintilla of evidence of breach and resulting damages, so instruction was required | New Albertson's: evidence did not support breach or damages—requests for access were reasonable or justified | Court: No error — evidence insufficient to support a jury finding of breach or resulting damages, so omission harmless/appropriate |
| Whether several jury instructions (knowledge defense, access/liability, interim payment handling, causation phrasing) were erroneous and prejudicial | Thomas & Betts: instructions improperly allowed knowledge defense, misstated access/liability under §5, confused handling of $2.9M interim payment, and suggested a de minimis defense | Defendants: instructions were legally sound or, if imperfect, not prejudicial; some objections forfeited | Court: Instructions upheld overall; most objections forfeited/forfeiture or not prejudicial; wording adequate in context |
| Sufficiency of evidence that Alfa Laval was liable under §5(a)(2) or §5(a)(5) (so liable under §4 to Thomas & Betts) | Thomas & Betts: circumstantial evidence (continuity of operations, use of oils, demolition/grading, aerial photos) supported inference Alfa Laval used/disposed PCBs and caused releases | Alfa Laval: contamination attributable to predecessor AT&M; no proof Alfa Laval used/disposed PCBs or caused releases during its ownership | Court: Evidence sufficient for a reasonable jury to find Alfa Laval liable under §5(a)(2) and §5(a)(5); Rule 50/59 challenges denied |
| Whether Charter School Parties lacked evidentiary basis for §5(a)(1) liability and 1% allocation under §4 | Charter School Parties: contamination during their ownership was de minimis (drain basin) and any post‑purchase contribution was speculative | Thomas & Betts: expert testimony and construction/soil disturbance evidence supported releases from Charter property during their ownership; runoff slope and unpaved contaminated areas made mobilization plausible | Court: Evidence supported a reasonable jury finding of releases during charter ownership and a 1% equitable allocation; JML denied |
| Prejudgment interest award on amount including New Albertson's interim $2.924M | Thomas & Betts: joint remediation agreement did not provide for interest on recovered interim payment; therefore interest award on that portion was erroneous | New Albertson's: the $2.924M was stipulated as reimbursement of response costs and the judgment included it; §§6B/6H mandate prejudgment interest on such judgment amounts | Court: No error — the judgment awarded that sum as response‑cost recovery and prejudgment interest under §§6B/6H properly applied |
| Award of attorney's and expert fees to New Albertson's under Mass. Gen. Laws ch. 21E §15 | Thomas & Betts: §15 allows fees only to parties who "advance the purposes" of Chapter 21E; plaintiffs who bear an equitable share cannot recover fees | New Albertson's: §15 requires (per SJC decisions) that the claimant sought §4 reimbursement and did not cause or contribute to the release; New Albertson's met that test | Court: Fees award sustained — SJC precedent (Bank, Martignetti, Sanitoy) permits fees where claimant sought §4 relief and did not contribute to release; New Albertson's entitled to fees; amount and apportionment were within district court discretion |
Key Cases Cited
- Bank v. Thermo Elemental Inc., 888 N.E.2d 897 (Mass. 2008) (§15 award requires claimant sought §4 reimbursement and did not contribute to release)
- Martignetti v. Haigh‑Farr Inc., 680 N.E.2d 1131 (Mass. 1997) (interpretation of §4/§5 interaction and fee recovery principles)
- John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401 (1st Cir. 1993) (Chapter 21E construed analogously to CERCLA)
- Acushnet Co. v. Mohasco Corp., 191 F.3d 69 (1st Cir. 1999) (rejecting de minimis defense under CERCLA; courts may consider smallness in allocation but not as complete defense)
- Sanitoy v. Ilco Unican Corp., 602 N.E.2d 193 (Mass. 1992) (permitting attorney's fees under §15 even when plaintiff did not recover 100% of its response costs)