Von Duprin LLC v. Moran Electric Service, Inc., 20-1793

Background:

Over decades multiple manufacturers (Von Duprin, Moran, Ertel, Zimmer) released chlorinated solvents (TCE/PCE) at four adjacent Indianapolis properties; contaminants commingled into a groundwater plume and caused vapor intrusion into ~40 homes and a park.
Von Duprin (successor owner) performed remediation, incurred about $3.2M, then sued adjacent current/former owners under CERCLA §107(a) to recover response costs; Moran and Major counterclaimed under §113(f). Zimmer defaulted.
At summary judgment the district court held the harm was "theoretically capable of apportionment" and that Major was a BFPP for some properties; it sent apportionment/allocation issues to bench trial.
After a six‑day bench trial the district court (crediting Moran’s expert Dr. Adam Love) apportioned liability by property (Von Duprin 50%, Major 30% total, Moran 20%), awarded $1.7M recoverable to Von Duprin, and approved future-cost declaratory relief; it denied BFPP for two Major properties.
On appeal the Seventh Circuit found two reversible errors: (1) the district court improperly resolved the threshold divisibility question at summary judgment without applying the correct substantive and procedural standards; and (2) the court conflated §107(a) apportionment (causation-based) with §113(f) allocation (equitable) and failed to explain its equitable allocation.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Divisibility of §107(a) liability (apportionment)	Von Duprin: harm is indivisible; defendants must prove divisibility	Moran/Major: expert testimony (Dr. Love) gives a reasonable basis to apportion by source chemistry	Reversed district court’s summary‑judgment divisibility finding; vacated and remanded for fuller fact-specific apportionment analysis under Burlington Northern/Restatement §433A standards
Post-trial assignment of shares (apportionment vs allocation)	Von Duprin: court improperly conflated apportionment and equitable allocation	Defendants: allocation under §113(f) was appropriate	Vacated allocation judgment; remanded because district court failed to explain how it weighed equitable (Gore) factors and blurred §107/§113 distinctions
Major’s BFPP defense for properties	Von Duprin: Major failed the "all appropriate inquiries" timing/attestation requirements	Major: completed Phase I and satisfied AAI	Affirmed in part: Major is BFPP for Moran and Zimmer Packaging; not BFPP for Ertel and Zimmer Paper Facility (failures in timing and required attestations)
Recovery under NCP (Von Duprin’s costs)	Von Duprin: costs were incurred in substantial compliance with the NCP	Major: many costs not NCP-consistent	Affirmed: district court did not err; most challenged costs (investigation, vapor mitigation, park remediation, testing) were recoverable as in substantial compliance with the NCP
Admissibility of Dr. Adam Love’s expert testimony	Von Duprin: Love’s methodology ignored confounders and should be excluded	Moran: Love is qualified and his methods were admissible	Affirmed: district court did not abuse discretion in admitting Love’s testimony; admissibility ≠ sufficiency to prove divisibility

Key Cases Cited

Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (superseding principles on joint/several vs divisible CERCLA liability)
United States v. Atlantic Research Corp., 551 U.S. 128 (private §107(a) cost-recovery and distinction from §113(f) contribution)
Chem-Dyne Corp. v. United States, 572 F. Supp. 802 (S.D. Ohio 1983) (discussion of joint and several liability where harms commingle)
Env’t Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503 (7th Cir. 1992) (elements of §107(a) cost recovery)
United States v. NCR Corp., 688 F.3d 833 (7th Cir. 2012) (two-step apportionment inquiry under Burlington Northern)
NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682 (7th Cir. 2014) (requirements for explaining equitable allocation under §113(f))
NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776 (7th Cir. 2000) (NCP compliance review)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (expert-admissibility/Rule 702 gatekeeping)
Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426 (7th Cir. 2013) (standard of review for expert admissibility)