UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOYCE MARTIN, Individually and as
Personal Representative of the
Estate of Harry O. Martin,
deceased,
Plaintiff-Appellee,
                                                                  No. 96-1414
v.

DIAMANT BOART AMERICA,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-92-2982-3-0)

Argued: May 6, 1997

Decided: May 30, 1997

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed in part and remanded in part by unpublished per curiam
opinion.

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COUNSEL

ARGUED: Timothy William Bouch, YOUNG, CLEMENT, RIVERS
& TISDALE, L.L.P., Charleston, South Carolina, for Appellant.
James Marcus Whitlark, FEDOR, MASSEY, WHITLARK & BAL-
LOU, Columbia, South Carolina, for Appellee. ON BRIEF: Stephen
P. Groves, W. Jefferson Leath, Stephen L. Brown, YOUNG, CLEM-
ENT, RIVERS & TISDALE, L.L.P., Charleston, South Carolina;
Mary L. Barrier, MORRISON & HECKER, Kansas City, Missouri,
for Appellant. David A. Fedor, Paul C. Ballou, FEDOR, MASSEY,
WHITLARK & BALLOU, Columbia, South Carolina; James B.
Richardson, Jr., SVALINA, RICHARDSON & LARSON, Columbia,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Harry and Joyce Martin sued Diamant Boart America ("DBA")
claiming that DBA had illegally dumped hazardous chemicals, con-
taminating the Martins' property. The case was tried before a jury,
which awarded $31,000 in damages for trespass and $1,000,000 in
punitive damages. DBA appeals, arguing that there was insufficient
factual support for the verdict, that the jury was improperly instructed
as to punitive damages, and that the district court failed to review
DBA's motion for remittitur according to South Carolina law as
required by Gasperini v. Center for Humanities , 116 S.Ct. 2211
(1996). We find that the jury's verdict was supported by the evidence.
We therefore affirm the district court on the issue of liability. The
punitive damages instructions also comported with South Carolina
law. However, we remand the issue of remittitur for reconsideration
in light of Gasperini.

I.

DBA operates a plant in Richland County, South Carolina, which
manufactures engineered diamond products such as saw blades, drill

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bits, and grinding wheels. Hazardous chemicals used as degreasers
are left over from the production process.

In 1990, Harry and Joyce Martin, who lived around 400 feet from
DBA's property, discovered that their well was contaminated with tri-
chloroethylene ("TCE"), tetrachloroethylene ("PCE"), and other haz-
ardous chemicals. Other wells in the area were also contaminated.
The South Carolina Department of Health and Environmental Control
advised the Martins and others to cease using their wells for drinking,
bathing, or cooking.

In early 1992, Harry Martin was diagnosed as suffering from pan-
creatic cancer. Prior to his death in October 1992, Harry Martin and
his wife filed suit against DBA claiming personal injury and property
damage. At trial, DBA denied using TCE at its plant. Martin coun-
tered this contention with testimony from a salesman who had sold
TCE to DBA and with testimony from ex-DBA employees that DBA
had both used and improperly dumped large amounts of hazardous
chemicals.

DBA responded to this evidence with studies which concluded that
DBA was not the source of the contamination of the Martins' prop-
erty. Indeed, there was conflicting evidence as to whether TCE was
even detected in significant quantities in the samples taken from
DBA's property and samples taken from the property between DBA
and the Martins' property. Martin explained the low level of contami-
nation on DBA's land with expert testimony that the contaminants
had "migrated" from DBA's property over time, and that the low
levels of contaminants resulted from recent changes in DBA's waste
disposal measures.

Following a three-week trial in September and October of 1995,
the jury found for DBA on all personal injury and negligence claims,
but awarded Joyce Martin $31,000 for nuisance and trespass and
punitive damages of $1,000,000. The district court denied DBA's
motion for judgment as a matter of law and DBA's motion for a new
trial or remittitur. DBA appeals.

II.

As an initial matter, DBA contends that there was insufficient evi-
dence to support the trespass verdict. It primarily argues that the testi-

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mony of Dr. Jack Parker, Martin's expert witness, was shown to have
no factual underpinning and that it should not have been admitted
under Daubert v. Merrell-Dow Pharmaceutical, Inc., 113 S.Ct. 2786
(1993). DBA argues that Dr. Parker's testimony was fatally flawed
because his theory of how contaminants had migrated to the Martins'
property from DBA was contradicted by the evidence. For example,
DBA maintains that at most there were low levels of TCE on its own
property and the property between the DBA plant and the Martins'
property. Thus, it concludes that the DBA plant could not have been
the source of TCE and PCE contamination.

However, for every contention raised by DBA, Martin was able to
offer a reasonable explanation or provide evidence to the contrary.
First, Martin proffered evidence which showed that TCE and PCE
were indeed found in DBA's groundwater. She further explained the
absence of hazardous chemicals in the samples taken from the inter-
vening property by noting that those wells were shallow, and that the
chemicals TCE and PCE are "sinkers" which tend to migrate to the
lowest point of the aquifer.

While the facts presented by DBA certainly could have done much
to undermine the weight of Dr. Parker's testimony, his basic theory
of how chemicals migrated to the Martins' property was not inadmis-
sible. Indeed, his "mounding" theory of migration appears to have
some acceptance in the field of hydrogeology. In fact, it was initially
developed in the 1950s by one of DBA's own expert witnesses. We
therefore conclude that the trial court did not abuse its discretion by
allowing Dr. Parker's testimony into evidence. United States v.
Dorsey, 45 F.3d 809, 814 (4th Cir. 1995) (decision to admit or
exclude expert testimony under Daubert reviewed for abuse of discre-
tion).

DBA also contends that the testimony of former DBA employees
as to DBA's dumping of chemical waste should have been excluded
as evidence of past acts under Fed. R. Evid. 404(b). This contention
is meritless. The testimony of the former employees was not, as DBA
alleges, evidence of past acts designed to show that DBA was "once
a polluter, always a polluter." Rather the testimony was necessary to
establish that DBA had dumped large quantities of the hazardous

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chemicals in question and was indeed the source of the contaminants
found on the Martins' property.

As to DBA's other arguments regarding the factual support of the
jury's verdict, suffice it to say that our review of the record reveals
no dearth of evidence to support a verdict for either party. Both par-
ties were able to present their case to the jury, and it was for the jury
as fact finder to assess the complex evidence and reach a verdict.
While reasonable minds may have come to a different conclusion than
the one the jury ultimately reached, we cannot say that no reasonable
juror could have returned a verdict for Martin. Brinkley-Obu v.
Hughes Training, Inc., 36 F.3d 336, 351 (4th Cir. 1994). Therefore,
we affirm as to DBA's liability.

III.

Next, DBA complains that the jury instruction as to punitive dam-
ages was flawed, and therefore the jury's verdict on this issue must
be reversed. We disagree. While the instructions in this case were
extensive, the fundamental prerequisite for punitive damages was
properly set forth by the district court. The court instructed the jury
that they should award punitive damages only if DBA had acted reck-
lessly, willfully, or wantonly. This comports with the threshold stan-
dard for an award of punitive damages under South Carolina law. See
Wise v. Broadway, 433 S.E.2d 857, 859 (S.C. 1993).

DBA further complains that the instruction was erroneous because
it stated that a finding of a willful, wanton, and reckless violation
required an award of punitive damages in some amount. South Caro-
lina, however, is one of the few jurisdictions where this instruction is
correct. See Sample v. Gulf Oil Refinery, 191 S.E. 209, 214 (S.C.
1937); see also Campus Sweater and Sportswear Co. v. M. B. Kahn
Construction, 515 F.Supp. 64, 104 (D.S.C. 1979) (following Sample).
In any event, even if there had been error in this instruction it was
surely harmless. The jury in this case was free to award punitive dam-
ages in an amount far less than one million dollars. It is difficult to
imagine that setting the minimum amount of damages at zero dollars
instead of one dollar would have affected the final verdict in the sligh-
test.

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IV.

Finally, we turn to DBA's contention that the district court improp-
erly denied its motion for a new trial or remittitur. In Gasperini v.
Center for Humanities, the Supreme Court clearly instructed that a
district court sitting in diversity must apply state law standards to
determine whether a verdict is excessive. 116 S.Ct. at 2224-25. The
district court in this case denied DBA's motion before Gasperini was
decided, and consequently did not provide an opinion indicating
whether or how it followed South Carolina law when it made its rul-
ing. Because of its greater intimacy with the case, the trial court is in
a preferable position to determine the propriety of damages. Id. at
2225; see also Steinke v. Beach Bungee, Inc., 105 F.3d 192, 198 (4th
Cir. 1997). We therefore remand this case so that the district court
may apply the standards set forth in South Carolina law.

The leading South Carolina case on determining whether punitive
damages are excessive is Gamble v. Stevenson, 406 S.E.2d 350 (S.C.
1991). In that case, the South Carolina Supreme Court set out eight
factors to consider:

          (1) defendant's degree of culpability; (2) duration of the
          conduct; (3) defendant's awareness of concealment; (4) the
          existence of similar past conduct; (5) likelihood the award
          will deter the defendant or others from like conduct; (6)
          whether the award is reasonably related to the harm likely
          to result from such conduct; (7) defendant's ability to pay;
          and finally (8) . . . other factors deemed appropriate.

Id. at 354.

On remand, the district court should apply these factors and should
"look to South Carolina cases to determine the range of damages in
cases analogous to the one at hand." Steinke , 105 F.3d at 198. A rea-
soned decision by the district court following this approach will "re-
duce the risk of caprice in large jury awards and will assure a
reviewing court that the trial court exercised its considered discretion
under the applicable state law." Id.*
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*In light of the remand on the punitive damages issue, we need not
reach DBA's contention that the jury's verdict exceeded the constitu-
tional standards set forth in BMW of North America, Inc. v. Gore, 116
S.Ct. 1595 (1996).

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V.

We affirm the judgment of the district court as to the issue of
DBA's liability. We remand the issue of punitive damages to the dis-
trict court for consideration of appellants' motion for remittitur under
South Carolina law.

AFFIRMED IN PART, REMANDED IN PART

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