                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-1285



MARTHA C. MILLER; JEFFREY M. MILLER,

                 Plaintiffs - Appellants,

           and

AMANDA MILLER; BRENDA MILLER; JUAN DAVID MILLER,

                 Plaintiffs,

           v.

MANDRIN HOMES, LIMITED; EDWARD C. KENNEDY; JAMES MANDRIN;
CHAMPION REALTY, INCORPORATED,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:05-cv-03025-CCB)


Argued:   September 24, 2008                 Decided:   January 8, 2009


Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge,
and James C. CACHERIS, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Mitchell Jay Rotbert, THE ROTBERT LAW GROUP, L.L.C., Bethesda,
Maryland, for Appellants. Steven Ellis Leder, LEDER LAW GROUP,
L.L.C., Baltimore, Maryland; Barbara Johnson Palmer, BLUMENTHAL,
DELAVAN & WILLIAMS, P.A., Annapolis, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Appellants    Martha        Miller    and    Jeffrey     Miller    (“the

Millers”)     brought     suit    against      Appellees     after     the     Millers

purchased a house and lot that they claim were contaminated by

toxic     substances. 1     The    District       Court   for   the    District     of

Maryland     (the    “district     court”)     granted     summary     judgment    in

favor of the Appellees.            Because the Millers failed to provide

more than speculative evidence regarding the contamination of

their home, we affirm.



                                          I.

             In January 2003, the Millers bought a tract of land in

Centreville,        Maryland      from     Appellee       Mandrin     Homes,      Ltd.

(“Mandrin”), and entered into a contract of sale for a house to

be built on the land.            They claim that the lot was previously

part of a solid and hazardous waste dump; that Mandrin and other

Appellees knew or should have known this; and that by grading

the   land    and   disturbing      its    groundwater,      Mandrin     and     other

Appellees caused the release of hazardous substances onto the


      1
       The Millers originally filed suit on behalf of their minor
children as well.     On February 22, 2007, the district court
granted the Millers’ motion to dismiss the claims of their minor
children without prejudice.


                                           3
land.     Appellee Champion Realty, Inc. served as the Millers’

agent in the purchase.              The Millers took possession of the house

in late January 2003 and vacated it in November of the same

year.      They    claimed       that     after        moving   in,      they    noticed       an

offensive       odor     coming       from       the       basement      and     experienced

respiratory,       digestive,         and       other      physical      ailments.            The

Millers    also    discovered         a   punctured         pipe    in      their    basement,

which was corrected by Mandrin, and claimed to notice structural

defects and mold growth in the house.

             Between May 2002 and May 2003, thirteen environmental

and structural inspections were completed on the house at the

instigation       of    the   Millers,          Mandrin,      and     the    Millers’       home

insurance carrier.            The test results were mixed.                     Several tests

found no problems; indeed, one reported that the air in the

house     was     cleaner      than       the       air     outside.           Another      test

recommended the sanitation of the carpets and HVAC system in the

house, and noted that the illnesses reported by the family had

the characteristics of allergenic reactions to mold, mildew, and

bacteria.

             The       Millers      claimed          that     laboratory            tests     and

groundwater       analyses     showed       the      presence       of   volatile      organic

substances      (“VOCs”)       in     their         sump     water.          They     hired    a

hydrologist, Dr. Lorne Everett (“Dr. Everett”), to interpret the
                                                4
test   results.        Dr.    Everett,     who       never   visited       the   house,

analyzed the studies and tests performed by third parties as

well as aerial photographs of the house and surrounding area.

He opined that the photos revealed significant land disturbances

between 1952 and 1957 in the surrounding area “consistent with”

a dump or landfill.           He stated that “the detection of volatile

organic compounds (VOCs) and the semivolatile compound, phenol,

in   water   from    the     sump   at   [the    property]      is    indicative    of

groundwater contamination under the property.”                   Dr. Everett also

provided     a    “Rebuttal    Affidavit”       in   response    to    an    affidavit

submitted by the Appellees’ expert, Dr. Jack Snyder.

             Dr. Snyder’s affidavit stated that all the chemicals

detected in the Millers’ house were common substances “found

around     the     average    household        and    in     sources    other      than

contaminated groundwater.”           He also testified that the chemical

concentrations found in the sump water would not pose a health

risk even if the sump water was ingested and that “the presence

of a contaminant in sump water at the concentrations indicated

does not establish either the origin of the contaminant or that

the residents of the house were exposed to the contaminant.”

             In    November     2005,    the     Millers      filed    a    Complaint

alleging violations of the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et
                                          5
seq., and making state law claims under Maryland law for breach

of    implied      warranties,      unfair    competition         and    deceptive          acts

under     Maryland         Commercial         Law,        deceit,        and     negligent

misrepresentation.            The district court granted summary judgment

in favor of the Appellees after ruling that the Millers did not

present       evidence     showing     a     triable       issue       of     fact     as    to

contamination.         This appeal followed.



                                            II.

              We     review    de   novo     the     district         court’s    grant        of

summary    judgment        under    Federal       Rule     of    Civil      Procedure       56.

Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591

(4th Cir. 2004).            We consider the record de novo and address

properly-preserved arguments raised by the appellant, as well as

properly-preserved            alternative          bases        for     affirmance,           to

determine whether the evidence shows a genuine issue of material

fact that requires a trial.                  Beverati v. Smith, 120 F.3d 500,

503    (4th     Cir.   1997).        This     court      applies       “the     same    legal

standards       as   the   district     court       and    view[s]       the     facts       and

inferences drawn therefrom in the light most favorable to the

non-moving party.”            Motor Club of America Ins. Co. v. Hanifi,

145 F.3d 170, 177 (4th Cir. 1998).



                                             6
                                           III.

             The   Millers         acknowledge       that      all    of    the    counts      in

their Complaint rest on the CERCLA claim stated in Count I.                                    If

the   district     court       correctly      found     that     no    genuine      issue      of

material fact existed as to the CERCLA claim, then it properly

granted    summary          judgment     on       all    counts        in    the    Millers’

Complaint.     To prevail on a CERCLA claim, a plaintiff must show,

among other elements, that a “release” or “threatened release”

of a “hazardous substance” has occurred.                        42 U.S.C. § 9067; see

Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409,

414 (4th Cir. 1999); United States v. Md. Bank & Trust Co., 632

F. Supp. 573, 576 (D. Md. 1986).                        All of the Millers’ legal

theories   rely        on    the    contamination        of     their       home   by    toxic

substances.        Thus,        their     case      hinges      on     the    evidence         of

contamination       they       put      forward,        namely        the    October         2006

Declaration      and    the     December      2006      Rebuttal       Affidavit        of    Dr.

Everett.      They argue that these two documents show a genuine

issue of material fact.               The district court disagreed, holding

that, to the contrary, Dr. Everett’s testimony was insufficient

to establish a prima facie case.

             The Millers claim that the district court wrongfully

disregarded      Dr.        Everett’s    testimony        as     speculative.            Under

Daubert v. Merrell Dow Pharmaceuticals, they contend, the court
                                              7
should have scrutinized the methods and principles employed by

their expert witness rather than his conclusions.          509 U.S. 579,

589 (1993).    They are correct, of course, that a trial court

must decide whether an expert’s testimony is admissible under

Daubert. 2   The analysis, however, does not end there.         Even if

expert testimony meets the Daubert admissibility standards, the

question remains whether the evidence creates a genuine issue of

material fact, i.e., one that would allow the jury to find for

the non-moving party on an essential element of the claim.            If

no   genuine   issue   of   fact       exists,   summary   judgment   is

appropriate.


     2
       Federal Rule of Evidence 702 governs the use of expert
testimony:

     If   scientific,   technical,      or  other   specialized
     knowledge will assist the trier of fact to understand
     the evidence or to determine a fact in issue, a
     witness qualified as an expert by knowledge, skill,
     experience,   training,    or    education,  may   testify
     thereto in the form of an opinion or otherwise, if (1)
     the testimony is based upon sufficient facts or data,
     (2)   the   testimony   is    the   product  of   reliable
     principles and methods, and (3) the witness has
     applied the principles and methods reliably to the
     facts of the case.

Daubert requires a two-part analysis to determine whether
proposed expert testimony is admissible. First, the court must
determine whether the expert’s testimony is grounded in the
scientific method and reflects scientific knowledge.  Daubert,
509 U.S. at 590, 593. Second, the court must determine whether
the evidence proffered is relevant. Id. at 597.




                                   8
            In     Daubert,      the   Court        explained      that    when       a    trial

judge     “concludes      that     the    scintilla          of    evidence          presented

supporting    a    position      is    insufficient          to    allow    a    reasonable

juror to conclude that the position more likely than not is

true,” the judge “remains free . . . to grant summary judgment.”

509 U.S. at 596.          A fair reading of the district court’s opinion

shows that the court had doubts about the admissibility of some

or all of Dr. Everett’s testimony, but also that it considered

his testimony, taken at face value, insufficient to create a

triable    issue     of    fact.         The       court    reviewed       Dr.       Everett’s

statements and found that a reasonable jury could not logically

base a verdict for the Millers on his testimony.                           We agree that

the   opinions     of     Dr.   Everett     are       not    sufficient         to    allow   a

reasonable juror to find for the Millers.

            In the Fourth Circuit, proof of a necessary element

offered to escape summary judgment “must be such as to suggest

probability      rather     than   mere    possibility,            precisely         to   guard

against raw speculation by the fact-finder.”                            Sakaria v. Trans

World Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993) (citations

and internal quotations omitted); see also Textron Inc. ex rel.

Homelite    Div.    v.    Barber-Colman            Co.,    903    F.   Supp.     1558,      1565

(W.D. N.C. 1995).

            The      Millers       claim           that     Dr.        Everett’s          expert

conclusions, when viewed in the light most favorable to them,

                                               9
would     allow         a     reasonable          juror       to     infer      that      groundwater

contamination existed on the lot when it was owned by Mandrin,

and   that     the      contamination             was     a    result      of     leachate     from    a

nearby        landfill.               Dr.      Everett’s            testimony,          though,     was

speculative as to the presence of a landfill and as to the

existence of contamination.                        In his opinion, “the detection of

volatile organic compounds (VOCs) and the semivolatile compound,

phenol,       in    water          from     the    sump        at    127     Cypress       Street     is

indicative         of       groundwater        contamination              under     the    property.”

According to Dr. Everett, who studied the reports of others but

did     not    personally            visit        the     property,          this       contamination

occurred via leaching from a dump or a landfill, the presence of

which is indicated by aerial photographs that show an “observed

pattern of land disturbance . . . consistent with a dump or a

landfill.”           Likewise,            he   stated         in    his    affidavit       that     “the

occurrence         of       [chlorinated          VOCs        and    phenolic       compounds]        is

consistent with contamination migrating in groundwater from a

landfill source.”

               Such claims, even if they would be admissible under

Daubert,       indicate         no    more        than    a    mere       possibility       that     the

Millers’       theory         of    contamination             is    true.         The     closest    Dr.

Everett’s affidavit comes to stating an opinion in a manner that

would allow a reasonable jury to find for the Millers by a

preponderance            of     the       evidence        is        his    statement        that     the

                                                    10
detection of VOCs “is indicative” of groundwater contamination.

This phrase, however, does not show that Dr. Everett believed

there actually was groundwater contamination or, more to the

point, that he could testify that it was his scientific opinion

that groundwater contamination existed.                             Dr. Everett stated his

opinion in a passive manner that suggests his finding falls in

the realm of the possible rather than the probable.                                     He stated

that one fact – the detection of VOCs – is indicative of the

existence        of        a      second,         required          fact      –     groundwater

contamination.             The testimony provides no yardstick by which to

measure the strength of this claim.                        The detection of VOCs could

be “indicative” of any number of things, including other sources

of contamination.                Indeed, other evidence in the record states

unequivocally that all of the chemicals detected in the Miller’s

house    also    can       be    found      around       the    average     household.          Dr.

Everett’s testimony would not allow a jury to find groundwater

contamination by a preponderance of the evidence.

               Moreover,         none      of    the    other    links      in    the   chain   of

inferences supporting the Millers’ landfill leachate theory was

stated    as    anything          more     than    a    scientific         possibility.         The

Millers    also       produced        no    evidence       of    medical         causation;     Dr.

Everett is not a medical doctor and thus did not posit his

expert    opinion          as    to   the       causation      of    the    Millers’      claimed

injuries.             In        short,      the        Millers      have     suggested        only

                                                  11
possibility, rather than probability, on an element essential to

their   claims.     The    district    court   properly    granted     summary

judgment.



                                      IV.

            For   the     foregoing   reasons,    the     district     court’s

judgment is

                                                                     AFFIRMED.




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