
USCA1 Opinion

	




          March 29, 1996                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-1800                              CASH ENERGY, INC., ET AL.,                               Plaintiffs - Appellants,                                          v.                           MELVIN L. WEINER, ETC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Neal  Marshall Brown  with whom  Amy  S. Locke  was on  brief  for            ____________________             _____________        appellant.            Robert S. Sanoff with whom Nicholas  C. Theodorou, Sara E.  Wylie,            ________________           ______________________  ______________        and Foley, Hoag & Eliot were on brief for appellees.            ___________________                                 ____________________                                 ____________________                      Per  Curiam.   Plaintiff-appellant  Mark  O.  Henry                      Per  Curiam.                      ___________            brought an  action seeking damages from  an adjacent property            owner  for groundwater  contamination  to Henry's  commercial            property.   Henry appeals from the district  court's grant of            summary judgment for the defendants.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      We  first  summarize  the  relevant facts  as  they            appear on  the summary judgment  record, viewing them  in the            light most favorable to  the non-movant Henry.  See  Woods v.                                                            ___  _____            Friction Materials, Inc.,  30 F.3d 255, 259 (1st  Cir. 1994).            ________________________            In  this  case,  however,  the  summary  judgment  record  is            particularly unhelpful  to Henry  because the  district court            ruled  that he failed to comply with the local rule requiring            the  party opposing  summary  judgment to  provide a  concise            statement  of the  material  facts as  to  which there  is  a            genuine issue to  be tried.  See D.  Mass. L. R. 56.1.   As a                                         ___            consequence  of  that non-compliance,  the  court deemed  the            moving  defendants'  statement  of  undisputed  facts  to  be            admitted by Henry, as the local rule provides.  See id.                                                              ___ ___                      On appeal,  Henry states in  his brief that  he did            comply  with the  local  rule, and  he  points out  that  his            memorandum  opposing  summary  judgment  included  a  lengthy            factual  statement with  record  citations.   Henry does  not            explain, however, how his factual statement complies with the                                         -2-                                          2            requirement of a concise  statement of the material  facts as                             _______                   ________            to which  there is a genuine issue.  See id.  Henry's factual                                 _____________   ___ ___            statement was  a general and  complete background  statement,            spanning seven pages, providing relevant facts whether or not            they were  disputed or  material to the  outcome.  We  see no            error in the district court's application of the  local rule,            therefore we, like the district court, treat the facts as set            forth in the defendant's statement as admitted by Henry.                      In   1986,   Henry   purchased   several   business            condominium units  in Andover, Massachusetts.1   In 1989, for            purposes  of  refinancing   the  property,  Henry   hired  an            environmental   consultant  to   inspect  the   property  for            contamination.    The  inspection  revealed  high  levels  of            volatile organic compounds ("VOCs") in the groundwater.                      Prior  to  Henry's  purchase  of  the  property,  a            laundry and dry  cleaning facility had  operated on the  site            from   about    1960   until   1981,    utilizing   a    VOC,            perchloroethylene ("PCE"),  as a dry cleaning  solvent.  Upon            deposition, the former owner of the laundry conceded that PCE                                            ____________________            1.  In 1981, Cash Energy, Inc., a corporation owned by Henry,            purchased the property and in 1986 converted it into business            condominium  units,  transferring   several  units  to  Henry            personally and to  others.   Cash Energy, Inc.,  and all  the            other plaintiffs (except  Henry individually) were  defaulted            from  this  action  in November  1991.    The  record is  not            completely  clear as  to  what actions  were  taken by  Henry            personally, as opposed to his corporation or others, but that            is  irrelevant  to  the  disposition  of  this  appeal.   For            simplicity,  we will  recite the  facts as  if Henry  was the            actor unless more specificity is required.                                         -3-                                          3            sometimes spilled on the  ground during the monthly refilling            of the PCE storage tank.                      Adjacent to  Henry's property, the  defendants2 own            a commercial property on which a solvent reclamation business            has   operated  since  1969,   handling  industrial  solvents            containing VOCs.   That property, too,  was contaminated with            VOCs, necessitating an ongoing environmental remediation.  It            is likely that solvents from the defendants' property entered            the groundwater  on Henry's property, accounting  for some of            the VOCs detected in the groundwater.                      Henry filed the instant lawsuit in 1990, bringing a            myriad  of  claims   under  the  Comprehensive  Environmental            Response,  Compensation, and  Liability  Act  ("CERCLA"),  42            U.S.C.     9601-9675,  the  Massachusetts  Oil and  Hazardous            Material Release  Prevention and Response Act,  Mass. Gen. L.            ch.  21E, and Massachusetts  common law  (nuisance, trespass,            negligence, etc.).       The   litigation  did   not  proceed            smoothly.    A   description  of  Henry's   missteps,  missed            deadlines,  and  failures  to comply  with  scheduling orders                                            ____________________            2.  The  district court,  in  the order  that Henry  appeals,            granted summary judgement to the following defendants: Melvin            L. Weiner (as Trustee of  Weiner Real Estate Trust);  Service            Chemical Corp.;  North  East  Solvents  Services,  Inc.;  and            Laidlaw  Environmental Services,  Inc.  (formerly North  East            Solvents  Reclamation  Corp.).    The roles  of  the  various            defendants are not germane to the disposition of this appeal,            and we shall  refer to them  simply as "the  defendants."   A            number  of  other defendants  were  dismissed  from the  case            earlier, and are not parties to this appeal.                                         -4-                                          4            would fill several pages;  suffice it to say that  the record            suggests a pattern of flagrant non-compliance with deadlines,            orders, and  rules.  On January  31, 1995, as a  sanction for            Henry's  repeated  discovery violations,  the  district court            granted  the   defendants'  motion  to  preclude  Henry  from            presenting  expert  testimony  on  damages.   Henry  has  not            appealed that order.                      The defendants moved for summary  judgment in March            1995, arguing,  in  essence, that  without expert  testimony,            Henry would be unable  to prove damages, a  necessary element            of his prima  facie case under all his claims.   The district                   _____  _____            court granted  summary judgment  in favor of  the defendants,            finding  that,   in  light  of  the   preclusion  order,  the            affidavits  with which  Henry  had  opposed summary  judgment            contained  no admissible  evidence  from which  a jury  could            reasonably measure damages.                                         II.                                         II.                                         ___                                       ANALYSIS                                       ANALYSIS                                       ________                        On appeal, Henry argues that he can prove damages            without expert testimony, and that therefore summary judgment            was improper.   Henry does  not argue that  he could  survive            summary judgment without  some proof  of damages,  apparently                                         -5-                                          5            conceding  that under all of  his causes of  action, he bears            the burden of proving that he suffered recoverable damages.3                      We review a  grant of summary judgment  de novo, in                                                              __ ____            accordance with our usual  standard.  See Friction Materials,                                                  ___ __________________            30  F.3d at  259.   Federal  Rule  of Civil  Procedure  56(c)            "mandates the entry of summary judgment,   . . . upon motion,            against  a party who fails  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. 317, 322 (1986).               _______                      Misguidedly,  Henry  uses  much  of  his  brief  to            describe the evidence  that he  would be able  to present  at            trial.  In reviewing summary judgment, however, the issue  is            not what  Henry might be able  to prove at trial,  but rather            what Henry  has  put  into  the summary  judgment  record  in            compliance  with Fed. R. Civ. P. 56  and D. Mass. L. R. 56.1.            Under  Rule  56(e),  "the  adverse  party  [i.e.,  the  party            opposing  summary  judgment]  may  not  rest  upon  the  mere            allegations or  denials of the adverse  party's pleading, but                                            ____________________            3.  We  note  that  Henry   has  not  addressed  whether  his            declaratory  judgment  count  should  have  survived  summary            judgment even without proof of damages.  It appears, however,            that the declaratory judgment  that Henry sought pertained to            the defendant's  liability for damages under  CERCLA, so that            proof of damages may have been critical here as well.  In any            event,  Henry has  waived the  issue.   See United  States v.                                                    ___ ______________            Zannino,  895 F.2d 1, 17 (1st Cir.) ("[I]ssues adverted to in            _______            a  perfunctory  manner,  unaccompanied   by  some  effort  at            developed argumentation, are deemed waived."),  cert. denied,                                                            _____ ______            494 U.S. 1082 (1990).                                         -6-                                          6            the adverse  party's response, by affidavits  or as otherwise            provided  in  this  rule,4  must  set  forth  specific  facts            showing there is a genuine issue for trial."  Fed. R. Civ. P.            56(e).                      Henry  has asserted  three applicable  theories for            the  measurement   of  his   damages,  but,   without  expert            testimony, he  has failed to demonstrate  a trialworthy issue            of fact on any.   Each of Henry's  theories -- diminution  of            his property's market value, estimated remediation costs, and            recovery of response costs paid -- require a determination as            to the extent of the harm,  if any, caused by the defendants.            Given the  facts on  the summary  judgment record  here, that            requirement calls for the segregation of damage caused by the            defendants from  damage generated  by the former  on-site dry            cleaning  operation.5   It is  axiomatic that  the defendants            are not liable for damages they did not cause.                       The district court held the burden was  on Henry to            isolate the harm caused  by the defendants.  On  appeal Henry                                            ____________________            4.  In  addition to  affidavits,  Rule 56  allows a  party to            support   or   oppose   summary   judgment   with  pleadings,            depositions,  answers to  interrogatories, and  admissions on            file.   Fed. R. Civ.  P. 56(c).   Henry, in  opposing summary            judgment,  cited only  to  two affidavits,  which we  discuss            infra.            _____            5.  The  district court  held that  the diminution  in market            value  theory  also calls  for  segregation  of the  general,            market-wide devaluation of commercial  properties in the area            from  the effect on value of the contamination, but we do not            rely on this in reaching our decision.                                         -7-                                          7            does no more than assert that he was not  required to isolate            the  harm, without  citing statutes or  case law.   It is the            duty  of the appellant to show that error has been committed,            and Henry has not done so.                      Although the  allocation of  damages caused by  two            distinct  sources  of  groundwater pollution  would  seem  to            require  expert  testimony, we  need  not  decide that  issue            because  Henry has failed  to put  into the  summary judgment            record  any admissible  evidence that  would allow a  jury to            allocate  the damages.    Henry supported  his opposition  to            summary  judgment with his own affidavit and the affidavit of            Stephen  L. Kurz,  an  environmental consultant.6   Only  one            statement  in   these  affidavits  addresses  the   issue  of            segregating   the  contamination   that  emanated   from  the            defendants'  adjacent property  from contamination  caused by            the  on-site dry cleaning establishment.   Henry avers in his            own affidavit that another consultant, ENPRO Services,  Inc.,            "concluded that  the source of the  solvent contamination was            the [defendants']  property and  that [Henry's] property  was            not  a source of  the contamination."   While that conclusion            seems  improbable, credibility  is  not at  issue on  summary            judgment.  But Henry's statement about ENPRO's conclusions is                                            ____________________            6.  Henry  also  made  a  single  citation  to  a  deposition            submitted with  the defendants' motion  for summary judgment,            as to a fact not relevant to the allocation of damages issue.                                         -8-                                          8            inadmissible  hearsay,  and cannot  be considered  on summary            judgment.7  See Garside v.  Osco Drug, Inc., 895 F.2d  46, 50                        ___ _______     _______________            (1st Cir. 1990).   Moreover, Henry's statement, without more,            is too conclusory to satisfy the Rule 56(e) requirement  that            the non-movant  "set forth specific facts  showing that there            is a genuine issue for trial."   See Crawford v. LaMantia, 34                                             ___ ________    ________            F.3d  28,  31  (1st   Cir.  1994)  ("conclusory  allegations,            improbable    inferences,   and    unsupported   speculation"            insufficient to block summary judgment), cert. denied, 115 S.                                                     _____ ______            Ct. 1393 (1995).                      Environmental   consultant   Kurz,  in   the  other            affidavit  submitted  by  Henry,  opines  that  the  remedial            measures being implemented on defendants' site are inadequate            to deal with the groundwater contamination, and estimates the            cost  of  a remediation  plan  that  properly addresses  both            Henry's and the  defendants' properties.   But Kurz does  not            address in any way the issue of  isolating the harm caused by            the  defendants'  activities  from  that  caused  by  Henry's            predecessor,  the dry  cleaner.   In any  event, if  the Kurz            Affidavit had addressed the  segregation of off-site damages,                                            ____________________            7.  The  Enpro  consulting report  is  itself  in the  record            below,  but  that does  not help  Henry.   First,  the report            itself is inadmissible hearsay.  Second, as to the separation            of  harms  issue,  the  Enpro report  constitutes  an  expert            opinion on  damages, inadmissible under  the district court's            preclusion order.                                         -9-                                          9            it  would  violate   the  court's  order  precluding   expert            testimony on damages.                      We hold, therefore, that  absent a showing that the            district court misconstrued the law, Henry failed to meet his            burden on summary judgment to set forth specific facts, which            if believed, would allow a jury to measure the damages caused            by the defendants.   See Anderson v. Liberty Lobby,  477 U.S.                                 ___ ________    _____________            242,  249 (1986).   Henry's failure  to isolate  the off-site            harm from  that caused  by the  dry  cleaning operation  that            operated  on  site is  fatal to  all three  damages measures:            diminution of property value, remediation costs, and response            costs.    Accordingly,  the district  court's  order granting            summary judgment is affirmed.  Costs to the appellees.                                ________                                         -10-                                          10
