Opinion
Civil Nos. 3:94-CV-2477-H, 3:96-CV-1927-H, 3:96-CV-1929-H, 3:96-CV-2985-H, 3:96-CV-993-H, 3:96-CV-3057-H, 3:96-CV-3094-H, 3:96-CV-3098-H, 3:97-CV-0055-H.
June 24, 2003.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference filed on August 15, 2001 and the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) came on to be considered ASARCO's Motion for Summary Judgment Against the Bellwether Plaintiffs' Claims Regarding Alleged Leakage From Railcars filed on August 15,2000; Plaintiffs' Response filed on September 6, 2000; and ASARCO's Reply thereto filed on September 18, 2000. The findings and recommendation of the United States magistrate judge, as evidenced by his signature thereto, are as follows:
On October 15, 2001, the District Court entered a Revised Case Management and Scheduling Order, which stayed all personal injury and property damage claims as well as all then pending motions for summary judgment in this litigation. Thereafter, on April 15, 2003, the District Court entered an Order vacating the stay imposed pursuant to its Order of October 15, 2001. As such, the instant motion is now ripe for determination.
This designation apparently refers to both the Commerce and Ridgeway Bellwether Plaintiffs to the extent that both sets of Plaintiffs have alleged that "[a]rsenic was delivered in leaking railcars owned and/or leased by ASARCO. . . . The leaking railcars allowed arsenic to escape and spill into the environment." ( See Turley Pls.' Ninth Am. Compl. at p. 4 ¶ IV:C and Ridgeway Pls.' Sixth Am. Compl. As to ASARCO and the VPG Related Parties at p. 4 ¶ IV:C). As such, hereinafter, these two sets of Bellwether Plaintiffs will collectively be referred to as simply "Plaintiffs."
I. Factual Background
Between 1962 and 1972, the Hi-Yield Chemical Company (hereinafter referred to as "VPG") manufactured pesticides, arsenic acid, and monosodium acid methane arsenate at its Commerce, Texas plant ("Commerce plant") using arsenic trioxide ("arsenic") it purchased from the American Smelting and Refining Company (hereinafter "ASARCO"). ( See Ex. 3 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Excerpt from TNRCC State Superfund Program Hazard Ranking System Assessment, Hi-Yield Site, Commerce, Texas Sept. 1993)). ASARCO shipped arsenic from its copper smelting plants in Tacoma, Washington and San Luis Potosi, Mexico to VPG's Commerce plant. ( See Ex. 8 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Report of Dr. Lila Laux, March 20, 2000)).
VPG owned the Hi-Yield company and its plant from 1968 to 1971, when the plant was closed pursuant to an agreement with the Texas Water Control Board. See S. Pac. Transp. Co. and St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., et. al., No. 3:94-cv-2477, 1997 WL 457510, at * 1 (N.D. Texas Aug. 7, 1997). Various exhibits refer to a Universal Chemical Company ("Universal") and the Bonny Corporation ("Bonny"). Apparently, at some point in its history, after various mergers and transfers, Hi-Yield was owned by Universal. Id. Subsequently, Universal conveyed some of the plant to VPG. Id. At some point, Bonny, a subsidiary of VPG, also, briefly owned the property. Id.
According to Arturo Bermea Castro, a former superintendent at ASARCO's San Luis Potosi plant ("San Luis Potosi plant"), the arsenic produced at that plant was shipped in one of two ways: some was placed in barrels which were, in turn, loaded onto railroad boxcars, and some was shipped in sealed railroad hopper cars, which were labeled "ASMX." ( See ASARCO's Consolidated Appendix ("ASARCO's App.") at p. 2108 (Affidavit of Arturo Bermea Castro) ("Castro's Aff.")). These railcars, which originated in Mexico, entered the United States in Laredo, Texas, where they were inspected by the United States Customs Service. ( Id.). Castro averred that during his tenure at the San Luis Potosi plant, a team of employees was responsible for maintaining and inspecting the railroad hopper cars used for transporting arsenic. ( Id.). According to Castro these responsibilities included, inter alia, inspecting the cars for any holes and cracks, in which case the employees would either remedy the problem or return the railcar to its owner, and applying a special grease to the hopper doors underneath each car to prevent the leakage of arsenic. ( Id. at 2108-09). Once the railcars were deemed to be in good condition and properly sealed, they were loaded with arsenic, after which a placard was affixed onto each car, warning of the dangerousness of the car's contents. ( Id. at 2109).
According to Robert Bloom, a long-time employee in the arsenic barreling and shipping department at ASARCO's Tacoma plant ("Tacoma plant"), similar steps were taken at that facility as well. In his deposition, Bloom testified that once a railcar returned to the Tacoma plant, the "handy gang" was responsible for inspecting and maintaining each car. (ASARCO's App. at 2081 (Deposition of Robert Bloom) ("Bloom's Dep.")). According to Bloom, the "handy gang" removed all arsenical remnants and residue and washed out each car, after which these employees sealed the car's doors with oakum, a caulking compound, and then with black mastic, a heavy tar; as a result of which each car was virtually impermeable. ( Id.). After being loaded with arsenic, each car underwent a visual inspection for leaks. ( Id. at 2082).
A review of the deposition testimony of Lawrence Lindquist, the former superintendent of the Tacoma plant, reflects that he fully concurred with Bloom's testimony, adding that the asbestos rope material used as a caulking/sealing agent was eventually replaced with Kaowool, a non-asbestos material. (ASARCO's App. at 2077 (Deposition of Lawrence Lindquist ("Lindquist's Dep.")). Lindquist also testified that he had never personally received, or been made aware of, any complaints about either arsenic-leaking railcars or railcars which reached their destination with less arsenic than had been ordered or billed. ( Id. at 2079).
Southern Pacific Transportation Company and its subsidiary St. Louis Southwestern Railway Company (hereinafter collectively referred to as the "Railroads"), which owned approximately 1.6 acres adjacent to VPG's Commerce plant, leased the property (hereinafter referred to as the "Commerce site") to VPG for transportation, unloading and conveying of the arsenic, and granted permission to VPG to construct two unloading pits beneath the railroad tracks for capture of the arsenic unloaded from the railroad hopper cars. (See Ex. 4 attach. to App. to Pls.' Response to Railroads' Mot. for Summ. J. (Letter dated July 5, 1961 from St. Louis Railroad Company to Hi-Yield); see also S. Pac. Transp. Co. and St. Louis Southwestern Ry. Co. v. Voluntary Purchasing Groups, Inc., et. al., No. 3:94-cv-2477, 1997 WL 457510, at * 7 (N.D. Texas Aug. 7, 1997).
According to deposition testimony from James "Cooter" Moody ("Moody"), the former plant manager at VPG, railroad hopper cars carrying arsenic from ASARCO were received at the Commerce site from 1962 through 1971. ( See Mem. Op. and Order filed on Dec. 31, 2002 at p. 4). Moody testified that all of the railcars received from ASARCO, except for those from the Tacoma plant, had markings which read "ASMX, 2200" and "Return car to American Smelting Refining." ( Id. at 10). Moody testified that during the nearly ten years in which VPG received arsenic shipments from ASARCO he recalled observing two large-scale spills, as well as several smaller leaks, of arsenic from railcars received from ASARCO. ( Id. at pp. 4-5). With respect to the large-scale spills, Moody testified that twelve thousand pounds of arsenic spilled as a result of an incident wherein a VPG crew prematurely pulled a loaded railcar away from the designated unloading area. He also testified that a thousand pounds of arsenic spilled due to a damaged railcar door, which resulted from an accident. ( Id. at p. 5). With respect to the smaller leaks, Moody testified that he observed arsenic leaking from cracks and/or holes in the railcars and from the hopper doors — used to drain the arsenic into the holding pits — on the bottom of the railcars. ( Id.). Moody testified that the he observed white residue — presumably arsenic — protruding through both rust holes and cracks, some as long as three or four inches, on some of the railcars; that some of these cracks had been "gunked up" with a "tar-like substance;" and that railcars in such disrepair were received during the period in which ASARCO shipped arsenic to VPG, which began in the early 1960's. ( Id. at pp. 5-6). Moody further testified that he also observed that some of the railcars arrived at VPG missing the sealing agent around their hopper doors and/or with the hopper doors not fully closed. ( Id. at p. 6). According to Moody, approximately six railcars arrived at VPG in such a condition, each one leaking out less than one-half cup of arsenic. ( Id.). Moody testified that he complained to ASARCO, including to "Mr. Cohen" an ASARCO representative, about the leakage from railcar hopper doors, but that he "did not get a good response" ( Id.).
With respect to ownership of these vehicles, in his deposition, Arturo Bermea testified that the railcars sent from ASARCO's San Luis Potosi plant were "leased or something." ( Id. at 10). Further, according to Larry Lindquist's deposition testimony, ASARCO owned the railcars sent from its Tacoma plant, some of which had "ASX" markings. ( Id. at 11).
During his deposition, Moody answered "No" to a question regarding whether arsenic ever leaked out of the cracks in the railcars in amounts which would create a "little stream down the tracks," as opposed to merely in small "puffs" or "clouds." (ASARCO's App. ("Moody's Dep.") at 1521). Moody further testified that generally the hopper doors were well sealed and worked "ninety-nine times out of a hundred." ( Id. at 1523). Finally, Moody testified that he did not know whether the cracks in the railcars appeared either before or after the cars left ASARCO's plants. ( Id. at 1540). Based on Moody's testimony, assuming that these six railcars had cracks before arriving at VPG's Commerce plant, the total amount of arsenic which leaked from these cars was approximately three (3) cups.
In his deposition, Jerome Cohen, a former ASARCO employee, denied having ever received any such complaints. ( See id.).
In his deposition, James D. Atkins, a brakeman for the Cotton Belt Railroad, testified that he observed gaps in the railcar hopper doors which caused arsenic to leak out onto the railroad tracks as well as onto the ground and that the same, eventually, was strewn into the air. ( Id. at 7). Atkins attributed this leakage to VPG's unloading crews' failure to properly close the railcar hopper doors after unloading. ( Id.). In fact, Atkins testified that he did not "remember any [arsenic] pouring out [of the railcars] coming in [to the VPG plant]. [They were] usually plugged up pretty tight coming in. Going out is when you lost most of [the arsenic]." (ASARCO's App. at pp. 2066-67).
II. Analysis
A. Summary Judgment — Standard of Review
To prevail on a motion for summary judgment, the moving party has the initial burden of showing that there is no genuine issue of any material fact and that judgment should be entered as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10 (1986). The materiality of facts is determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). Once the moving party has made an initial showing, the party opposing the motion for summary judgment may not merely rely on its pleadings, but must come forward with competent evidentiary materials that establish a genuine fact issue Anderson, 477 US at 256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56 (1986). Neither conclusory allegations nor hearsay statements are competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (citation omitted). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports the opponent's claim. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation omitted). The court must resolve any factual controversies in favor of the nonmoving party. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996) (citation omitted). Thus, in reviewing all of the evidence, the court must consider it in a light most favorable to the Bellwether Plaintiffs' claims, drawing all factual inferences therefrom and making all credibility determinations related therefrom in their favor. However, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
B. Findings and Conclusions
In its instant motion, ASARCO asserts that the court should grant summary judgment against Plaintiffs because they have failed to present any evidence of actionable negligence on the part of ASARCO with respect its shipments of arsenic to VPG's Commerce site. ASARCO posits that any arsenic leakage and/or spillage could have been caused by a myriad of things besides its own negligence, such as acts of God, vandalism, maltreatment of the railcars after they left ASARCO's control, or by unforeseeable defects in the cars or the material used to seal the same for transport. (ASARCO's Mot. at pp. 10-11). Specifically, ASARCO argues that Plaintiffs' claims against it, at least with respect to the allegations regarding railcar leakage, fail, as a matter of law, because Plaintiffs have produced no evidence that ASARCO failed to meet the standard of care applicable to manufacturers/shippers of chemicals. ASARCO also argues that Plaintiffs' attempt to use a res ipsa loquitur-type argument to show causation is similarly unavailing. ( Id. at p. 12 et. seq.).
In response, Plaintiffs assert that the facts of the instant case — ASARCO shipped arsenic in railcars to VPG, some of which lost some of their contents as a result of leaks and spills — strongly support application of the doctrine of res ipsa loquitur in determining whether ASARCO's conduct, in relation to its shipments of arsenic to VPG, constituted negligence.
1. The District Court's Memorandum Opinion and Order filed on December 31, 2002
Before reaching the contentions of the parties, the court must analyze the Memorandum Opinion and Order ("Order") of the District Court, filed on December 31, 2002, wherein the court considered ASARCO's CERCLA liability for contribution to the Turley Plaintiffs for alleged leakage of arsenic from ASARCO's railcars at VPG's Commerce site. In that Order, the court, after considering both live and deposition testimony from various witnesses presented by the parties, made findings regarding the nexus, or lack thereof, between ASARCO and the spillage/leakage of arsenic in and around VPG's Commerce site. Although the court found that there had been both "small-quantity leakage" and "large-quantity spillage" from railcars transporting arsenic from ASARCO to VPG's Commerce site, the former being attributable to cracks in the railcars as well as from improperly sealed and/or closed hopper doors, it concluded that the Plaintiffs had failed to establish a nexus between ASARCO and a majority of the spillage and leakage of arsenic at VPG's Commerce site. For example, the court found that ASARCO was not liable for 1) the twelve thousand pounds of arsenic which spilled as a result of the premature movement of a mostly full railcar from the unloading area by a VPG crew at the Commerce site; 2) the one thousand pounds of arsenic which spilled as a result of damage to a railcar which was sustained in an accident; and 3) the smaller incidents of arsenic leakage which resulted from improper closure of the railcars after unloading by employees of VPG. ( Id. at pp. 5, 7, 11). However, the court did find a nexus between ASARCO and the arsenic leakage which resulted from cracks in the railcars as well as from improperly closed/sealed hopper doors. ( Id. at pp. 5, 6, 12). Accordingly, ASARCO's liability, if any, arising from railcar leakage — which, in turn, contributed to arsenic contamination in and around VPG's Commerce site — is limited to the amount of arsenic which leaked from the cracks, and/or from improperly closed/sealed hopper doors, on the railcars it shipped to Commerce.
According to Cooter Moody, the former plant manager at VPG's Commerce plant, only about three (3) cups of arsenic leaked from either cracks or improperly closed/sealed hopper doors on the cars which ASARCO sent to the Commerce site. ( See, p. 5 n. 5, supra.). With this in mind, the court now turns to consider the parties' contentions.
2. Negligence A. Duty
To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff and breached that duty, and (2) damages proximately resulting from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Whether a legal duty exists is a threshold question of law for the court to decide from the facts surrounding the occurrence in question. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). To establish a breach of duty, a plaintiff must ordinarily present evidence that a defendant did not exercise the care that a reasonably prudent party would have exercised under the same or similar circumstances. Hager v. Romines, 913 S.W.2d 733, 734 (Tex.App.-Fort Worth 1995, no writ) (citing Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex.App.-Houston [1st Dist.] 1993, no writ), aff'd as modified, 901 S.W.2d 434 (Tex. 1995)). Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of a layperson. Hager, at 735 (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (expert medical testimony was necessary to determine whether a medical provider was negligent in diagnosing a skull fracture).
In support of its instant motion, ASARCO, citing the court to Hager v. Romines, supra, asserts that testimony from an expert witness is necessary to determine whether the leakage of arsenic at VPG's Commerce plant was attributable to any negligence arising from ASARCO's maintenance of the railcars it sent to VPG. Specifically, ASARCO asserts that the Plaintiffs have failed to proffer any evidence — via expert testimony or otherwise — that it breached any applicable duty of care it owed to VPG.
In Hager, a case involving a determination regarding the standard of care owed by a crop duster whose chemicals drifted onto an adjacent property and injured crops thereon, the Fort Worth Court of Appeals held that flying an airplane and applying herbicides and pesticides aerially required special equipment and techniques, both of which were not familiar to the ordinary person. As such, the court also held that expert testimony was required to show that the crop duster's conduct represented a departure from the standard of care applicable to individuals in his line of work. See id. at 734-35.
Admittedly, transporting arsenic via railcars is not directly analogous to either crop dusting, see Hager, supra, or the diagnosing of skull fractures, see Roark, supra, However, to the extent that ASARCO employed individuals whose responsibilities included inspecting railcars before shipping and applying special caulking/sealing agents to prevent leakage of any arsenic during transit, it is arguable that such steps are beyond the experience of a layperson, in the same way that flying a plane and crop dusting are, especially considering that both the hooper door-equipped railcars as well as the substances/agents used to seal the same against leakage are technologies which are, at the very least, unfamiliar to laypersons. As such, the court finds that a determination as to whether ASARCO breached its duty of care requires testimony from an expert witness who is familiar with the standard of care applicable to manufacturers in ASARCO's position.
A review of the evidence submitted by Plaintiffs discloses that the record now before the court is completely devoid of any such expert testimony. In fact, Lila Laux, Ph.D, Plaintiffs' "warnings" expert, specifically testified during her deposition that she was not proffering testimony as an expert on "how to properly handle and inspect railcars." ( See ASARCO's Consolidated Appenix at 01003). Accordingly, absent such testimony, Plaintiffs' reliance on the deposition testimony of Cooter Moody and James Atkins appears to be nothing more than an attempt to "bootstrap . . . testimony on causation into expert testimony on a violation of the standard of care," a practice which does not substitute for the lack of testimony from an expert. Hager, at 735-36. As such, the court finds that Plaintiffs have wholly failed to demonstrate that ASARCO breached any applicable standard of care with respect to its shipments, via railcar, of arsenic to Commerce.
B. Proximate Causation
Alternatively, even assuming that Plaintiffs had proffered expert testimony that ASARCO had violated the applicable standard of care, they would have considerable difficulty proving proximate causation. As discussed above, ASARCO contends that Plaintiffs' approach to proving causation is analogous to a res ipsa loquitur-type argument — simply stated, according to Plaintiffs, the leakage of arsenic from ASARCO's railcars received at VPG's Commerce site gives rise to an inference that such leakage would not have happened in the absence of negligence on the part of ASARCO. According to ASARCO, the res ipsa doctrine may not be used absent evidence of both (1) exclusive control of the railcars by ASARCO and (2) the exclusion of all other potential causes by Plaintiffs. In support of this proposition, ASARCO cites the court to Michaels v. Avitech, Inc., 202 F.3d 746 (5th Cir. 2000), a case in which the Fifth Circuit Court of Appeals held that res ipsa loquitur is only applicable when the instrumentality/condition in question was under the exclusive control of the defendant and any alternative causes had been excluded. Id. at 753-54 (citing Harris v. National Passenger Railroad Corp., 79 F. Supp.2d 673, 679 (E.D.Tex. 1999)).
Proximate causation has two elements: forseeability and cause in fact. Travis v. City of Mesquite, 830 S.W.2d 94, 97 (Tex. 1992). While it is arguably foreseeable that ASARCO's railcars could spill and/or leak arsenic while in transit to VPG's Commerce site, Plaintiffs have not proven that the small amount of arsenic — three (3) cups — which leaked at the Commerce site and has been connected with ASARCO's inspection and maintenance activities, was a "substantial factor in bringing about the injur[ies]" which Plaintiffs complain of. Id. As such they cannot establish that the same constituted the "cause in fact" of their injuries. Id.
In Mobile Chemical Co. v. Bell, 517 S.W.2d 245 (Tex. 1974), the Texas Supreme Court held that the res ipsa doctrine is applicable when: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Id. at 251 (citing Owen v. Brown, 447 S.W.2d 883 (Tex. 1969)). With respect to the "control" requirement he court held that the same did not mean that the instrumentality needed to have always been in the defendant's possession or even that it had been in the defendant's control at the time of the injury. Id. (citing Honea v. Coca Cola Bottling Co., 143 Tex. 272, 183 S.W.2d 968 (1944)). Instead, "control" may be established where the defendant "was in control at the time that the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that [it] was the negligent party." Id. (citations omitted). Also, with respect to the "exclusion of other causes" element, the court held that the possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that a jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at "the defendant's door." Id. (citation omitted).
Considering the "control" element as construed by the court in Mobile Chemical Co., it is clear that ASARCO took great effort to maintain each of the railcars — regardless of whether they originated in Tacoma or San Luis Potosi — which it used to ship arsenic to VPG's Commerce site. In so doing, ASARCO arguably had control of the railcars at a time when any negligence which may be inferred from its maintenance/inspection efforts would have occurred, thus satisfying the second of the above two elements. However, with respect to the first element, it is decidedly less than clear that the leakage of a total of three (3) cups of arsenic from railcars which traveled thousands of miles from origination to destination — 2275 miles from Tacoma and approximately 1000 miles from San Luis Potosi, see Def.'s Mot. at p. 10-constitutes the type of accident/incident which would not have occurred in the absence of a party's negligence. Setting aside the spillage of massive amounts of arsenic — twelve thousand pounds in one instance and a thousand pounds in another, neither of which have been shown to have been related to actions or inactions of ASARCO — as the court must in light of the District Court's findings in its December 31, 2002 Order, ASARCO may only be held liable for the three (3) cups of arsenic which spilled out of six of its railcars. As such, despite the fact that ASARCO undertook steps to maintain and inspect the railcars — some of which it owned and others of which it leased — it used to transport arsenic to Commerce, it strains credulity that ASARCO's actions vis a vis these railcars could be considered negligent, in any way, when the same leaked no more than a total of three (3) cups of arsenic over the course of at least nine years of such shipments, especially considering the great distances which each of these cars were required to travel in order to reach Commerce. Although the record contains deposition testimony from Robert Bloom, an employee in the shipping department at ASARCO's Tacoma plant, wherein he testified that arsenic was corrosive and could, over time, cause the nearly eighth-of-an-inch-thick metal on ASARCO's railcars to rust, see Pls.' Resp. at Ex. 1, and from Charles Hanes, a former railroad worker in the Commerce area, wherein he testified that he recalled that ASARCO's railcars were rusty and that a white powder "leaked [out of these cars] pretty bad," see Def.'s App. at 2104, the fact remains that ASARCO's railcars leaked no more than three (3) cups of arsenic during the nearly decade-long commercial relationship between ASARCO and VPG. That fact, alone, militates against acceptance of the Plaintiffs' claim that ASARCO was negligent. RECOMMENDATION
The court notes that Plaintiffs have also failed to exclude the possibility of other causes of the minuscule amount of arsenic leakage.
For the foregoing reasons, it is recommended that the District Court grant ASARCO's Motion for Summary Judgment Against the Bellwether Plaintiffs' Claims Regarding Alleged Leakage From Railcars.
A copy of this recommendation shall be mailed to counsel for the respective parties.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.