UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEX D. WALTERS,
Plaintiff-Appellant,

v.                                                                    No. 97-2543

PANTRY INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William M. Catoe, Jr., Magistrate Judge.
(CA-96-669-8-13)

Submitted: January 29, 1999

Decided: February 19, 1999

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joseph A. Rhodes, Jr., HAYNSWORTH, BALDWIN, JOHNSON &
GREAVES, Greenville, South Carolina, for Appellant. Andrew S.
O'Hara, MOORE & VAN ALLEN, P.L.L.C., Charlotte, North Caro-
lina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Lex D. Walters appeals from the jury verdict awarding him actual
damages but denying punitive damages from the Defendant, The Pan-
try, Inc. (the Pantry). For the following reasons, we affirm.

Walters purchased commercial property on Highway-72 Bypass in
Greenwood, South Carolina with the intent of building a full-service
car wash on the property. The property is adjacent to the Pantry, Store
Number 340. The Pantry operates a combination convenience store
and gasoline station on its property. In 1989, the Pantry discovered
that its property was contaminated by gasoline. Further investigation
revealed that the contamination had migrated onto Walters's property.
When Walters learned that his property had been contaminated with
gasoline and gasoline products, his project came to a halt because no
bank would approve financing for his project.

Walters sued the Pantry for discharging gasoline and gasoline con-
stituents from its Store Number 340 onto his property and for failing
to clean up the resulting soil and groundwater contamination in a
timely fashion. Walters sued under theories of negligence, negligence
per se, and trespass. He sought both actual and punitive damages.
Walters filed his complaint in federal district court based on diversity
jurisdiction. Both parties consented to proceed before a magistrate
judge, electing to appeal directly to this court.

The evidence revealed that the Pantry experienced approximately
sixty releases of gasoline from underground storage tanks at its con-
venience stores in various states. The Pantry discovered nineteen of
the releases before it discovered the release at Store Number 340 and
the other forty releases afterwards.

In response to interrogatories by Walters, the Pantry created docu-
ments identifying every Pantry store at which a release of gasoline
had been discovered, which included the store address, the type of
contamination, when the contamination was discovered, how it was
discovered, the nature of the remediation, if any, and the cost of
remediation.

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Prior to trial, the Pantry filed a motion in limine to exclude evi-
dence of the presence of petroleum contamination at any of its stores
other than at Store Number 340. The Pantry also sought to exclude
evidence of money it spent on cleaning up its contaminated sites and
money spent by any state or commonwealth to clean up those sites.
Walters responded by explaining that the evidence of other releases
and the reimbursements from the South Carolina Department of
Health and Environmental Control (DHEC) was relevant to establish-
ing the Pantry's intent with regard to its environmental strategies, and
thus, was highly probative of his right to punitive damages.

At trial, the district court excluded all information regarding the
cost of remediation, except at Store Number 340. The court also
excluded all forty of the interrogatory responses regarding releases
that were discovered after the discovery of the Store Number 340
release. However, the court admitted evidence of the eighteen inter-
rogatory responses regarding releases that were discovered by the
Pantry prior to the release at Store Number 340. Walters also
attempted to offer into evidence documents from the DHEC showing
all reimbursements by the DHEC to the Pantry and its environmental
consultant for assessment and cleanup actions at its various store loca-
tions. The court admitted the evidence of reimbursements for Store
Number 340, but excluded the evidence for all other sites. The court
also excluded a computer printout from DHEC that listed all of the
Pantry's contaminated sites in South Carolina, again on the grounds
that only those sites that had been identified before Store Number 340
was identified were admissible.

Following trial, the jury returned a verdict of $50,000 in actual
damages in favor of Walters, but declined to award punitive damages
after finding that Walters had not established by clear and convincing
evidence that the Pantry's conduct was willful, wanton, or reckless,
including a consciousness of wrongdoing. Walters moved for a new
trial, but the district court denied the motion.

Walters appeals the jury's failure to award punitive damages on the
theory that the district court improperly excluded evidence which
showed that the Pantry had acted in a willful, wanton, and reckless
manner and with a conscious disregard for Walters's rights. See
Taylor v. Medenica, 479 S.E.2d 35, 46 (S.C. 1996) (in order for a

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plaintiff to recover punitive damages, there must be evidence the
defendant's conduct was willful, wanton, or in reckless disregard of
the defendant's rights); Gilbert v. Duke Power Co., 179 S.E.2d 720,
723 (S.C. 1971) (punitive damages are awarded to punish wrongdoers
for reckless, willful, wanton, or malicious behavior). Specifically,
Walters contends that he was precluded from establishing the Pantry's
intent, which was crucial to his receiving punitive damages. He
argues that in order to be entitled to an award of punitive damages,
he needed to prove the intent of the Pantry and evidence crucial to
establishing the Pantry's intent included repeated releases of environ-
mental contaminants over a long period of time, some occurring after
the release that contaminated Walters's property. Walters also claims
that evidence crucial to establishing the Pantry's motive for not
improving its environmental program included financial incentives in
the form of near-total reimbursement for cleanup costs from the
DHEC.

Under Fed. R. Evid. 404(b), evidence of other acts is not admissi-
ble to prove the character of a person, in this case the Pantry, in order
to show action in conformity therewith, but it may be admissible for
other purposes, such as proof of motive, intent, or absence of mistake
or accident. See generally Pike v. South Carolina Dep't of Transp.,
506 S.E.2d 516, 520 (S.C. Ct. App.) (discussing South Carolina rules
of evidence). However, under Fed. R. Evid. 403, relevant evidence
may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or need-
less presentation of cumulative evidence.

We review the district court's evidentiary rulings for an abuse of
discretion. See WLR Foods, Inc. v. Tyson Foods, Inc., 65 F.3d 1172,
1174 (4th Cir. 1995). Because the district court has first-hand knowl-
edge of the trial proceedings, the district court should be afforded
wide discretion in determining whether evidence is unduly prejudicial
and the district court's evidentiary determination should not be over-
turned except under extraordinary circumstances. See United States v.
Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996).

A review of the record reveals that the district court excluded the
evidence of the forty releases that were discovered after the one at

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Store Number 340 because it was highly prejudicial. The probative
value of the evidence as it relates to the Pantry's intent is question-
able. The responses show that releases of gasoline were discovered at
fifty-nine locations, under different circumstances, in five different
states, and that in excess of ten different remediation efforts were
implemented at those locations. The documents do not reflect the reg-
ulatory requirements that effected the choice of remediation at the
particular sites, what remediation efforts were considered and deter-
mined to be inappropriate for each site, or to what extent the chosen
remediation effort was effective. Most importantly, the documents do
not establish the cause of the release or the party responsible for caus-
ing the release. Lastly, the documents do not reflect the amount of the
cost of remediation paid by the Pantry or the state in which the release
occurred.

The district court concluded that the slight probative value of the
evidence was outweighed by its prejudicial nature. The district court
stated, "I don't want to open up forty other cases. We're only trying
one here." The district court further stated that admitting evidence of
the fourteen releases that were discovered before the one at Store
Number 340 was "fair," but that he could not"try sixty different or
sixty or seventy different spills in this one case." The court recog-
nized the factual complexity in litigating sixty different releases and
their relevance to the particular release at Store Number 340 when he
stated that, "[i]t would be like trying sixty automobile accidents . . .
[i]nvolving the same car." The court further stated that in this case,
the Pantry Stores were located in different states, under different reg-
ulations, and different facts were involved in the releases. Also, it was
unknown where the leak at Store Number 340 came from. The district
court weighed the risks of confusion, misleading the jury, delay, and
waste of time in ruling that it did not want to convert this trial into
one in which the Pantry would have to explain the many differences
between the forty additional releases and the one at Store Number
340. Thus, the district court did not abuse its discretion in excluding
this evidence.

Walters also claims that the district court erred in excluding evi-
dence of reimbursements made by DHEC to the Pantry for work com-
pleted in response to petroleum releases at various sites throughout
South Carolina. The district court admitted the financial history of

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remediation at Store Number 340, but held the evidence of payment
at all other sites in abeyance for reconsideration if the jury determined
that Walters was entitled to punitive damages. The evidence of costs
reimbursed at others stores was prejudicial because it was irrelevant
to the measure of damages attainable by Walters and with regard to
remediation costs at Walters's property. At trial, Walters argued that
this evidence was necessary to show the jury that the Pantry made a
decision to rely on the reimbursement funds which went towards
showing its degree of culpability. The district court correctly found
that the Pantry's degree of culpability would only be relevant if the
jury awarded punitive damages. Because the jury found that Walters
did not establish willful, wanton, or reckless conduct by the Pantry,
the district court did not abuse its discretion in excluding this evi-
dence.

Accordingly, we affirm the district court's judgment. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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