NCR Corporation’s long-running battle over the divisibility of harm caused by PCB contamination in the Lower Fox River took a strange twist on Monday when the district court reversed a previous decision apportioning the harm and instead found NCR jointly and severally liable. This reversal comes in a case already more drawn out than a Tolstoy novel. The lengthy history of the case—which includes two trips to the Seventh Circuit—is summarized in my previous article on the now-reversed district court decision.
At issue in the case was whether the harm caused by PCBs in the river could be apportioned among the many parties who contributed to the contamination. In its earlier ruling, the court determined that the Seventh Circuit permitted a simple apportionment based on volume. Thus, the court found the harm divisible and held NCR liable for only a percentage of the harm which it determined using an expert’s “ballpark” estimate of NCR’s volumetric contribution to the contamination.
In granting EPA’s motion for reconsideration, the court determined that the harm was not theoretically capable of apportionment because there was not sufficient evidence to determine which polluter contributed any certain percentage of PCB contamination to the river. The court further found that the expert’s opinion on which it previously relied was actually unreliable and did not provide a sound basis upon which to apportion the harm.
The court subsequently denied NCR’s request that the court reconsider its reconsideration. NCR has asked the court to certify the order for interlocutory review. Surely a third trip to the Seventh Circuit will follow.