The opinion of the court was delivered by: Foschio, United States Magistrate Judge
This case was referred to the undersigned by Honorable
Richard J. Arcara on February 9, 1996, for pretrial
matters. The matter is presently before the court on
Defendants' motion filed June 29, 2001 to exclude
Plaintiff's expert witness report (Docket No. 199).
Plaintiff Pfohl Brothers Landfill Site Steering
Committee commenced this contribution action on November
7, 1995, pursuant to the Comprehensive Environmental
Response, Compensation, and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.,
seeking to recover from defendants Allied Waste
Systems, Inc. and GSX Polymers, Inc. (collectively,
"Defendants"), a portion of the costs Plaintiff
voluntarily incurred in connection with the removal of
various hazardous substances from a landfill ("the
Landfill"), located in the town of Cheektowaga, New
York. On May 15, 2001, Plaintiff and Defendants filed
motions for summary judgment and supporting papers.
Among the exhibits Plaintiff filed in support of summary
judgment is the Expert Report of Gary R. Hamed, Ph.D.
("Plaintiffs Expert Witness Report") (Plaintiff's
On June 29, 2001, Defendants filed a motion to exclude
Plaintiff's Expert Witness Report, accompanied by a
Memorandum of Law ("Defendants' Memorandum") and the
Affidavit of Attorney Nelson Perel. On June 3, 2002,
Plaintiff filed a memorandum of law in opposition to the
motion to exclude (Docket No. 231) ("Plaintiff's
Response Memorandum") and, on June 13, 2002, Defendants
filed a memorandum of law in further support of the
motion to exclude (Docket No. 233) ("Defendants' Reply
Memorandum"). Oral argument on the motion was deemed
For the following reasons, Defendants' motion is
Defendants take particular issue with the fact that
despite Dr. Hamed's formal education in rubber
technology and adhesives, his employment as a researcher
with Firestone Tire Company and as a college professor
of polymer sciences at the University of Akron, Dr.
Hamed has no direct experience with rubber reclaiming
and environmental matters. Defendants' Memorandum at 3.
Rather, Dr. Hamed's knowledge of those subjects comes
from secondary sources including books. Id. Defendants
also assert that Plaintiff's Expert Witness Report was
prepared without Dr. Hamed ever visiting the Landfill or
conducting any actual testing of the material deposited
there. As such, Defendants maintain that Dr. Hamed is
unqualified to opine as to whether CERCLA hazardous
substances were contained in the waste generated by
U.S. Rubber and whether such substances were leached out
of the waste and into the Landfill's environment given
his lack of experience with soil and the environment.
Id. at 1, 17-23.
Plaintiff argues in opposition that Defendants'
challenge to Plaintiff's Expert Witness Report that Dr.
Hamed's background in the chemistry of rubber and other
polymers renders him well-qualified to express his
opinion as to what hazardous substances were contained
within U.S. Rubber's waste. Plaintiff's Response
Memorandum at 1. Plaintiff also assert that Defendants
have confused the notion of whether a particular waste
product contains a substance considered hazardous under
CERCLA with the releasability of such substance. Id. at
Whether an expert's opinion is admissible at trial
depends on (1) the expert's qualifications to give the
opinion; (2) the reliability of the expert opinion; and
(3) the "fit" of the opinion, i.e., its relevance to the
issue for which it is asserted. Fed. R.Evid. 702;
Danbert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In the instant
case, Dr. Hamed's report satisfies these three
First, Dr. Hamed's extensive background in the
chemistry of rubber and polymers, including his research
work at a major tire company, qualifies him to opine as
to the chemical make-up of a particular rubber product,
including tires. Second, nothing in the record calls
into question the reliability of Dr. Hamed's opinion.
That Dr. Hamed never visited the Landfill to obtain
samples for testing is of no impact
because he was not required to do so. Betkoski, supra,
at 524. Nor is it necessary that a specific mixture or
waste solution be included on CERCLA's list of hazardous
substances, i.e., 42 U.S.C. § 9601(14) to fall
within CERCLA's coverage. B.F. Goodrich v. Betkoski,
99 F.3d 505, 515 (2d Cir. 1996). Rather, "`[w]hen a
mixture or waste solution contains hazardous
substances, that mixture is itself hazardous for
purposes of determining CERCLA liability. Liability under
CERCLA depends only on the presence in any form of
listed hazardous substances.'" Id. (quoting B.F.
Goodrich Co. v. Martha, 958 F.2d 1192, 1201 (2d Cir.
Finally, Dr. Hamed's expert opinion is relevant to the
issue before the court on summary judgment, i.e.,
whether U.S. Rubber's waste stream contained materials
that qualified as hazardous under CERCLA. Much of
Defendants' argument in support of the motion to exclude
challenges not whether the waste U.S. Rubber generated
and deposited into the Landfill contained substances
considered hazardous under CERCLA but, rather, the
releasability of such toxic substances. Defendants'
Memorandum at 4-5, 17-23; Defendants' Reply Memorandum
at 2-4, 5-10. This is significant as whether a
substance's hazardous components are "releasable" in a
given environment involves a different inquiry than
whether a particular substance contains a hazardous
component such that the substance's presence in the
Landfill qualifies as a "release, or threatened release
. . . of a hazardous substance" as required to make out
a prima facie case for CERCLA liability under
42 U.S.C. § 9607(a). Specifically, while
[i]ndependent releasability is not required to
establish liability . . . a defendant otherwise liable
may show `nonreleasability' in order to mitigate its
share of damages. It follows logically that a
defendant who disposes of hazardous substances that
are not independently releasable may still be held
liable, even though that defendant may not be required
to pay damages when the cost apportionment phase of
the litigation is reached.
Betkoski, supra, at 516-17.
Defendants' challenge that Dr. Hamed's report does not address the
releasability of a particular hazardous component, Defendants' Memorandum
at 17-23, thus is irrelevant to whether CERCLA liability as a generator
of waste containing hazardous substances exists and, instead, pertains
only to allocation of liability. Betkoski, supra, at 524.
Significantly, Defendants have not produced any evidence establishing
the absence of any CERCLA denominated hazardous substance within any of
U.S. Rubber's waste streams. In fact, Defendants' expert, Ian Webber,
Ph.D., attempts to rebut Dr. Hamed's report on procedural and
methodological grounds, rather than by attacking any of its ...