DVL, INC. v. GENERAL ELECTRIC COMPANY (N.D.N.Y. 12-6-2010)

nspired to conceal exculpatory evidence from her, and she asserts that her due process rights were violated when the district court prohibited her from presenting this theory of the case to the jury.

Waters' theory of government misconduct stems from Kolar's misidentification of Waters at her initial interview with the government. At that interview, as memorialized by the FBI agents' notes, Kolar definitively identified Rodgers as a participant in the robbery, and tentatively identified the other participants as "Capitol Hill girl," her "punk boyfriend," and "Crazy Dan." It is undisputed that none of these nicknames referred to Waters.

The FBI agents' official report of Kolar's interview took more than a month to prepare. In the interim, Kolar came forward with Waters' name. When the FBI agents finalized their report, they did not disclose the nicknames that Kolar had originally provided to them, nicknames that conflicted with Kolar's subsequent statement that Waters was involved. Instead, their report stated only that Kolar had originally identified the arsonists as herself, Rodgers, and "a few other individuals."

As discovery proceeded in Waters' case, the government first produced the FBI's report of Kolar's interview. It took another four months for the government to produce the agents' notes from the interview. Only after this belated production of the agents' notes did Waters learn for the first time that in her initial interview with the FBI Kolar had given a list of participants that did not include Waters, rather than merely failing to identify her as among other, unnamed participants.

The government claimed that the agents had not included the nicknames in their report because Kolar had only been certain of Rodgers' participation at the interview, and had been "thinking out loud" when she provided the nicknames. Waters, however, believed that the FBI had intentionally omitted the nicknames to conceal the discrepancy in Kolar's statements. She therefore moved to dismiss the indictment for government misconduct. Because the Assistant United States Attorney ("AUSA") who handled her prosecution had participated in Kolar's initial interview, Waters also sought to have him disqualified from the case.

The district court denied both Waters' motion to dismiss the indictment and her motion to disqualify the AUSA. At the same time, it granted an in limine motion brought by the government, restricting Waters from arguing that she was the victim of government misconduct or a conspiracy to conceal exculpatory evidence. Waters was allowed to, and did, question the testifying agents about the quality of their work, and about the discrepancy between their notes and the report of Kolar's interview.

On appeal, Waters argues that she should have been allowed to present her evidence of government misconduct to the jury. She also argues that she should have been allowed to implicate the prosecutor, who was present at Kolar's initial interview, in the government misconduct. She asserts that the district court's refusal to let her present this evidence violated her due process rights.

We see no error in the district court's evidentiary ruling. A district court has discretion under Federal Rule of Evidence 403 to exclude evidence "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 needless presentation of cumulative evidence." Fed.R.Evid. 403. We cannot say that the balance reached by the trial court in this case was an abuse of discretion.

To begin with, the probative value of Waters' evidence of a government conspiracy was quite low. While "attack[ing] the reliability of [an] investigation" is an important defense tactic, see Kyles v. Whitley, 514 U.S. 419, 446, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), Waters' evidence of a larger government conspiracy was highly speculative. At the time of trial, it consisted entirely of the discrepancy between the FBI report and Kolar's statement. There would be little to gain in encouraging the jury to speculate based upon such a small omission.

Waters attempts to buttress her misconduct claim by arguing that Kolar lied about the chain of custody of a folder of anarchist documents that she provided to the FBI after her initial interview. She contends that Kolar's misstatement is additional evidence that the government countenanced the fabrication of evidence in an attempt to convict Waters. The evidence that Kolar was not entirely forthcoming about the folder, however, was never presented to the district court. As discussed below, we are unable to consider this new evidence on direct appeal. See infra, n. 3.

In contrast, the downside of encouraging such speculation would be substantial. Allowing Waters to argue that she was the victim of a government conspiracy ran the risk of creating a mini-trial about Kolar's initial interview, the creation of the FBI's interview report, the government's discovery responses, and the prosecution's preparation of its case. Further, allowing Waters to implicate the prosecutor in her theory would have significantly prejudiced the government's ability to present its case — fomenting in the jury a distrust of the government's representative — with no corresponding benefit to the probative value of Waters' theory.

The district court's ruling allowed Waters to argue the substance of her case without risking the prejudice that her speculative theory would have created. Waters questioned the FBI agents at length about the discrepancies between Kolar's interview and the FBI's report. Waters even suggested to the jury in closing argument that the FBI might have "falsif[ied]" the report. This was an acceptable balance. Cf. United States v. Hankey, 203 F.3d 1160, 1174-75 (9th Cir. 2000) (affirming exclusion of testimony that police had committed misconduct because "the defense was able to present the bulk of the . . . argument to the jury" (emphasis in original)).

Given that the district court's evidentiary ruling was well within its discretion, we reject Waters' attempts to "constitutionalize" her claims. While the Constitution certainly affords a criminal defendant "a meaningful opportunity to present a complete defense," Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), that right is not without limits. Rather, "the Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues." Id. at 326-27, 126 S.Ct. 1727 (internal quotation marks omitted); see also id. at 326, 126 S.Ct. 1727 ("[W]ell-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.").

Simply put, Waters "cannot transform the exclusion of this evidence into constitutional error by arguing that [s]he was deprived of [her] right to present a defense. The right to present a defense is clearly fundamental, but . . . `the accused . . . must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'" United States v. Perkins, 937 F.2d 1397, 1401 (9th Cir. 1991) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). Given that Waters was able to present the substance of her factual innocence theory, we conclude that the district court's evidentiary ruling achieved the proper balance. Accordingly, we find no constitutional error.

B.

Waters next objects to the district court's decision to admit a folder of "anarchist literature" at her trial. She contends that the literature was far more prejudicial than probative of any material fact, and that it should have been excluded under Federal Rule of Evidence 403.

The government obtained the folder of documents from Kolar, who claimed that Waters gave it to her sometime after the UW arson. Consistent with this testimony, the folder (but none of its contents) bore Waters' fingerprints and a note in her hand that said, "Hey, WO MAN! Here's some stuff to read that I was telling you about. We'll hang out soon. [Heart] — B."

Waters admitted to giving Kolar a folder of articles, but claimed that the articles she gave Kolar were about "women and activism and vegetarianism," not anarchist political theory. The articles themselves did not have Waters' fingerprints, although some bore fingerprints from Solondz and Kolar.

The government contends that the articles were properly admitted under a number of different theories of relevancy. First, it contends that the articles established an "association" between Waters and Kolar. Second, it contends that the articles were relevant because one of them mentioned the UW arson. Finally, it asserts that the articles were relevant to rebut the character evidence that Waters introduced in her defense.

We do not find the articles to be particularly probative of any of these theories. The folder, which was found in Kolar's possession and bore Waters' handwritten note and fingerprints, established that Kolar and Waters were friends; the articles were unnecessary for that purpose. And, while one article mentioned the UW arson, it did so in a brief blurb that occupied less than one-tenth of one page, out of a total of 212 pages of articles.

As for the government's contention that Waters' choice of reading material is probative of her participation in the UW arson, we have repeatedly expressed our discomfort with such inferences. In United States v. Giese, 597 F.2d 1170 (9th Cir. 1979), for example, the government offered a book entitled From the Movement Toward Revolution against a defendant who had been accused of bombing two Navy recruiting centers in opposition to the Vietnam War. Id. at 1174, 1184-93. Although we affirmed the district court's decision to admit the book into evidence, we emphasized the narrow reach of our holding. Id. at 1185 ("[W]e wish to emphasize that we are not establishing a general rule that the government may use a person's reading habits, literary tastes, or political views as evidence against him in a criminal prosecution.").

Our opinion distinguished "between the book as a physical object which bore certain fingerprints and the book as a work of literature which contained a particular message." Id. at 1185. We emphasized that the book was initially offered only for the fingerprints it contained, and that "[d]uring the government's case-in-chief not a single word was said by the prosecutors or by any government witness regarding the book's contents." Id. Only after the defendant discussed 18 books that he claimed "reflected his left-wing but non-revolutionary political views" did the government gain the right to impeach him with the book's contents. Id. at 1189.

Here, the government did not differentiate between the folder as a physical object and the content of the articles it contained. The government introduced the articles as part of its case in chief, having Kolar read select passages for the jury. Although the jury heard of the fingerprints, the content of the articles received far more attention.

Although we do not hold that the articles were necessarily inadmissible for any purpose, we observe that a defendant's choice of reading material will rarely have a particularly significant probative value. Thus, attempts to use such evidence against a defendant must be viewed and reviewed with a careful and skeptical eye. See United States v. Curtin, 489 F.3d 935, 956 (9th Cir. 2007) (en banc) (noting difficulty with admitting literature against a criminal defendant, and concluding that, while literature may be relevant to intent, its relevancy depends upon the particular facts of the case).

We believe that an appropriately skeptical eye would have excluded the articles from Waters' trial, or at least limited the articles that were provided to the jury. In contrast to the article's slight probative value, their content was problematic on many levels. To begin with, the foundation for their admission was weak. Kolar could not positively state that the articles in the folder were the articles that Waters had provided her; instead, she testified that, after glancing at the folder, she placed it in a box and never looked at it again before producing it to her lawyer. Waters testified that the articles introduced into evidence were not the articles she gave Kolar. In addition, there was no evidence that Waters ever read the articles. In fact, the lack of her fingerprints on the articles suggests that she did not.

After the district court entered its judgment, Kolar's lawyer came forward and told the government that Kolar's statements about the chain of custody of the folder were not entirely accurate. Initially, Kolar told the FBI that she had put the folder in a plastic tub, where it sat undisturbed until she produced it to her lawyer. It was later disclosed, however, that a friend of Kolar's removed the tub from Kolar's house after the FBI made its first arrests in this case. Kolar's lawyer subsequently obtained the tub from this friend, and returned it to Kolar for a brief period, before he ultimately produced it to the government.
Waters contends that this admission destroys the chain of custody of the documents and is further evidence of a conspiracy to frame her for the arson. We are unable, however, to consider this new evidence on appeal. See Nat'l Wildlife Fed'n v. Burlington N. R.R., Inc., 23 F.3d 1508, 1511 n. 5 (9th Cir. 1994) ("Facts not presented to the district court are not part of the record on appeal."); Fed.R.App.P. 10. Waters must first present this evidence to the district court before we may consider it.

More importantly, however, the articles were highly prejudicial. While most espoused anarchist political theory, a number advocated violence in no uncertain terms. Many of the articles referred to deriving a disturbing joyfulness from acts of destruction, glorifying actions such as rioting and looting. They included phrases like "[i]n the heart of a riot one can catch a glimpse of the spirit of the revolt without a price," and references to the "glee of the looter" and the "festive atmosphere in the midst of the battle with the forces of the looter." One article described "bashing in the skull of society" as "an intense pleasure . . . to be savored."

Other articles explicitly advocated the destruction of society, encouraging readers to "com[e] together to destroy all domination," and advocating for a "strong-willed revolt aimed at developing a revolutionary project that can destroy this society and its institutions." Perhaps the most problematic article was entitled "Beyond the E.L.F." It condemned the "westernized way of life," and emphasized the need for "guerrilla tactics in the form of economic sabotage and beyond." It suggested that anarchists "choos[e] targets that have the most impact," such as "symbolic targets that if destroyed would place a major blow to the false reality [of U.S. society]." It concluded: "Think big. Wall Street, the stock market, Statue of Liberty, U.S. Capitol, . . . Disneyland, . . . government agencies. . . . Realize the difference between pulling up an acre of [genetically engineered] crops and destroying Monsanto. . . . The difference between spray paint and fire."

These passages are highly prejudicial, and even if the record demonstrated an adequate analysis by the district court we would be inclined to hold that admitting them was an abuse of discretion. Their repugnant and self-absorbed embrace of destruction is likely to have swayed jurors' emotions, leading them to convict Waters not because of the facts before them but because she represented a threat to their own values. We need not reach this question, however, because the district court did not properly exercise its discretion. The district court admitted the articles without ever reviewing them. Our case law establishes that this was error.

The record does not definitively establish that the district court never reviewed the articles. It does strongly suggest, however, that the court did not. When considering Waters' motion to exclude the articles, Waters' counsel noted that the court had not reviewed the documents. He pointed out that "the government hasn't brought them into court so the court can see them all, and for the court to go through and make its own determination as to what's relevant and what's not." This statement was not challenged. At trial, when the defense renewed its objection to the materials, the court gave no indication that it had read the articles.
Although the record does not expressly indicate whether the district court read the articles, at oral argument before this court, the government confirmed what the record suggests — that the district judge had not reviewed them.

The district court's admission of the documents is controlled by our en banc decision in Curtin, which involved the prosecution of a man for traveling across state lines with the intent to engage in a sexual act with a minor. When the defendant was arrested, his "personal digital assistant" was found to contain "in the form of text over 140 stories about adults having sex with children." 489 F.3d at 938. The government sought to introduce the stories into evidence in order to establish Curtin's intent to engage in sexual acts with what he believed was a 14-year old girl. Id. at 939-40.

The district court allowed the government to introduce five of the stories into evidence, but it appears that no one — neither the district judge nor the attorneys — had read the stories in their entirety. See id. at 957, 958 n. 9. Only during en banc proceedings did this court discover that, "[l]urking in unread paragraph 9 of . . . Exhibit 7C," was a "graphic description" of a young girl performing acts of bestiality. Id. at 957. As the en banc court observed, "[t]he acts described are enough to sour the stomach. Under no circumstances was this part of Exhibit 7C admissible with respect to any issue in this case. Had the district court read Exhibit 7C, the court would no doubt have spotted this excrescence and required that it be edited out of the exhibit as both irrelevant and dangerously prejudicial." Id.

In light of this discovery, the en banc court held that the district court was "required to have read every word of these stories when exercising its balancing discretion pursuant to Rule 403 to determine whether their potential for undue prejudice substantially outweighed their probative value." Id. at 957. It made this a requirement for all district courts when performing the 403 balancing test. See id. at 958 ("[W]e hold as a matter of law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.").

Our decision in Curtin controls this case. The district court had the responsibility to read every page of the articles in order properly to understand their contents before ruling on their admissibility. Its failure to do so means that it could not have properly weighed the impact of the articles under Rule 403. Accordingly, we hold that the district court's admitting the folder of anarchist literature constituted an abuse of discretion.

C.

Waters next contends that the district court erred when it denied her request to show the jury a documentary film that Waters produced before and during the time period of the UW arson. The film, entitled Watch, documented a peaceful protest against a clear-cutting project in Randle, Washington. Waters produced and filmed the video herself, beginning in 1999 and continuing for a number of years. She offered it into evidence to establish that she was devoted to peaceful means of protest, and to rebut the prosecution's evidence suggesting that she identified with ELF's tactics.

Assessed independently, whether the district court's decision to exclude the video was an abuse of discretion presents a close question. Many of the video's facts came out during the course of trial, and a number of Waters' character witnesses testified about her role in the documentary. Thus, although she was unable to show the jury the video, she was able to present the substance of her defense.

In light of the district court's decision to allow the anarchist literature into evidence, however, excluding the video was certainly an abuse of discretion. The district court's rulings allowed the government to rely on "other acts" evidence to establish that Waters identified with ELF's goals and tactics, while prohibiting Waters from rebutting that evidence with evidence that demonstrated her commitment to the values she claimed to hold. These rulings, in combination, assured that the jury would be provided with a one-sided picture of Waters. The jury saw her connected to violent anarchist propaganda that it may have had a visceral reaction to, while it was prevented from viewing evidence that would paint a contrasting picture of Waters as a person. Given the imbalance in the evidence that resulted from the district court's rulings, we hold that the district court abused its discretion when it excluded the video in these circumstances.

D.

The final evidentiary error Waters raises is the district court's decision to exclude Waters' out-of-court statements to her cousin, Robert Corrina. After she was contacted by the FBI, Waters called Corrina to inform him that the FBI might interview him. During this conversation, Waters told Corrina that she was innocent and that he should tell the FBI the truth. At her trial, Waters attempted to introduce these statements into evidence to show her lack of a guilty mindset, but the district court excluded the statements on hearsay grounds. See Fed.R.Evid. 801.

The district court's application of Rule 801(a) was only half correct. The first part of Waters' statement — that she was innocent — is clearly hearsay, and was therefore properly excluded under Rule 801(a). The second part, however — Waters' admonition to Corrina that he should "tell the truth" — does not fall within the definition of hearsay. "Tell the truth" is an imperative and not an assertion of fact. It therefore does not fall within the meaning of "statement" in Rule 801(a) and cannot be hearsay, because a nonassertion cannot have been offered to prove the truth of the matter asserted. See United States v. Hayes, 369 F.3d 564, 568 (D.C. Cir. 2004) ("The imperative `tell the truth' does not expressly assert anything."). Accordingly, we hold that the district court erred when it prevented Corrina from testifying to the fact that Waters told him to tell the truth.

E.

Given that the district court made a number of erroneous evidentiary rulings, we must determine whether the errors were harmless. See United States v. Liera, 585 F.3d 1237, 1244 (9th Cir. 2009). The government bears the burden of proving harmlessness, and must demonstrate that "it is more probable than not that the error[s] did not materially affect the verdict." Id. While we doubt that the erroneous exclusion of Waters' statement to her cousin had a substantial impact on her trial, the remaining two errors were sufficiently prejudicial to require reversal.

Although Corrina did not testify about the precise statements that the district court excluded, he did testify that Waters never asked him to lie. Moreover, Waters described the conversation in her own testimony and said, without objection from the government, that she told Corrina, "I am innocent and just tell the truth." Thus, even though the exact statements were excluded, their substance was presented to the jury.

The government has not carried its burden of convincing us that the admission of the anarchist literature was harmless. As we have already described, the anarchist literature was highly prejudicial. It contained a number of inflammatory statements glorifying violence, advocating destruction, and calling for an end to society. It endorsed attacks on symbols of American culture — symbols that many jurors likely held dear — such as the Capitol Building, the Statue of Liberty, and Disneyland. Rather than contributing to any issue in the case, it played to the jury's emotions, encouraging it to convict because it believed Waters held loathsome views that threatened the jurors' way of life.

No doubt recognizing the impact these articles would have on the jury, the prosecutor emphasized this prejudicial interpretation of the articles during his closing argument. Importantly, the prosecutor did not emphasize the government's theory that the articles showed a connection between Waters and Kolar, nor did he argue that the articles demonstrated a shared conspiratorial objective. Rather, the prosecutor argued that the articles represented Waters' values: "[c]learly she thinks these [articles] are important." He highlighted the fact that she had selected the specific articles that were in the folder, inviting the jury to convict not because of the articles' existence, but because of their content: "I didn't choose these articles to put in here. She did. [¶] What are these articles about? They are anarchist articles. The only way to really save the earth is to destroy capitalism. The Defendant chooses to select these articles and send them to her co-conspirator and say let's talk about them. . . ."

We have previously found the admission of violent texts, such as the anarchist material at issue here, prejudicial enough to warrant reversal. In United States v. Ellis, 147 F.3d 1131 (9th Cir. 1998), for example, we reversed a conviction after the government introduced a copy of "The Anarchist's Cookbook" into evidence. Id. at 1136 ("The government's reliance on this evidence created a grave danger that the defendant's guilt was established not by evidence relevant to the particular offense being tried, but rather by evidence that was wholly unrelated to these offenses." (internal quotation marks omitted)). In this case, as in Ellis, materials advocating violence, not to mention the overthrow of government, were "likely to elicit a response from jurors that cause[d] them to reach a conclusion based on emotion rather than the evidence presented." Id.

The erroneous exclusion of the Watch video compounded this error, depriving Waters of her opportunity to demonstrate that her purported belief in non-violence was genuine and to rebut the government's contrary showing. We are convinced that, "[t]aken together, the wrongful admission of [the government's evidence] and the erroneous exclusion of [the defense evidence] left the jury with only half the picture." Parle v. Runnels, 505 F.3d 922, 932 (9th Cir. 2007).

We find it probable that the district court's evidentiary errors had a material effect on Waters' verdict. Accordingly, her conviction must be reversed. See Liera, 585 F.3d at 1244.

III.

Waters also raises two challenges to her conviction based upon her assertion that the district court inappropriately closed her pretrial proceedings to the public. First, Waters claims that the district court committed structural error by closing an "omnibus" pretrial hearing to the public. Second, she argues that the district court erred by effectively closing jury selection. We review these public-trial claims claim de novo. United States v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003).

A.

The omnibus pretrial hearing took place on January 29, 2008. At the closed hearing, Waters was arraigned on the Fourth Superseding Indictment. The district court also addressed a number of administrative matters at the hearing, including motions in limine. The district court closed the hearing to the public, although Waters' life partner was allowed to attend.

Before the district court, Waters argued that her arraignment should have been in open court. In her opening brief, however, she did not renew this argument, and has therefore waived it. See Harger v. Dep't of Labor, 569 F.3d 898, 904 n. 9 (9th Cir. 2009).

Waters objected to the closure, noting that there were members of the public and of the press who wanted to observe the hearing, but the district court refused to open it. The only explanation the court offered was the statement that the hearing was "closed because that's the type of hearing that it is." The court also mentioned its desire "to get the matter ready to go to trial without any interruptions."

Waters contends that the closed hearing violated her Sixth Amendment right to a public trial. She asserts that the error is structural and must result in automatic reversal. We agree with Waters that the pretrial hearing should have been conducted in open court, although we do not agree that the error was structural.

As a preliminary matter, we must determine if Waters' public-trial right attached to the hearing at issue. Although the Sixth Amendment refers to a "public trial," the right encompasses more than the trial itself. "The right to a public trial is not limited to issues that arise after a jury is sworn or times when the jury is present." Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984) (en banc). Rather, it "extends at least to those pre-trial hearings that are an integral part of the trial, such as jury selection and motions to suppress evidence." Id.

We have previously stated that the public-trial right attaches to those hearings whose subject matter "involve[s] the values that the right to a public trial serves." United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003): Those values are:

(1) to ensure a fair trial, (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions, (3) to encourage witnesses to come forward, and (4) to discourage perjury.

Id. (quoting Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996)).

It is well established that the Sixth Amendment right to a public trial attaches to suppression hearings. The Supreme Court has held as much: "The[] aims and interests [of the right to a public trial] are no less pressing in a hearing to suppress wrongfully seized evidence. . . . [S]uppression hearings often are as important as the trial itself." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Not only is a motion to suppress a fundamentally important stage of the trial, but the public also has an interest in having allegations of government misconduct heard in an open forum.

The need for an open proceeding may be particularly strong with respect to suppression hearings. A challenge to the seizure of evidence frequently attacks the conduct of police and prosecutor. As the Court of Appeals for the Third Circuit has noted, "[s]trong pressures are naturally at work on the prosecution's witnesses to justify the propriety of their conduct in obtaining" the evidence. The public in general also has a strong interest in exposing substantial allegations of police misconduct to the salutary effects of public scrutiny.

Id. at 47, 104 S.Ct. 2210 (internal citation omitted).

The hearing in this case was not technically a suppression hearing. Nevertheless, we believe that the hearing implicated the values outlined above, and we therefore conclude that Waters' hearing should have been open to the public.

One major issue the district court heard at the omnibus hearing was Waters' motion to dismiss the indictment for government misconduct. In many respects, this motion resembled a motion to suppress evidence. Waters' motion directly challenged the tactics the government used in investigating her case. Cf. Ivester, 316 F.3d at 960 (affirming closure of pretrial hearing based in part on fact that the defendant "did not attack the government"). The hearing would therefore have benefitted from the "salutary effects of public scrutiny." Waller, 467 U.S. at 47, 104 S.Ct. 2210. Opening the hearing to the public might have encouraged other witnesses to come forward and discouraged perjury. Further, as with any allegation of misconduct, government agents must be reminded of their "responsibility to the accused and the importance of their function." Id. Last but not least, the public has an interest in learning of all allegations of government misconduct, including prosecutorial misconduct.

Having concluded that Waters' Sixth Amendment public-trial rights attached to her pretrial hearing, we hold that the district court erred by closing the hearing to the public. The Supreme Court recently articulated the standard that governs whether a hearing should be closed:

The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Presley v. Georgia, ___ U.S. ___, 130 S.Ct. 721, 724, ___ L.Ed.2d ___ (2010) (per curiam).

Here, the government did not seek to close the hearing and advanced no interest that would be prejudiced by closure. Likewise, the district court provided only conclusory statements in support of its decision to close the hearing, stating that the hearing would be closed "because that's the type of hearing it is," and expressing the need to "get the matter ready to go to trial without any interruptions." While "[t]he right to a public trial has always been interpreted as being subject to the trial judge's power to keep order in the courtroom," United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979), there is no indication that the public's presence would have had any disruptive effect on the hearing. Further, the district court failed to consider any alternatives to closing the courtroom.

Waters argues that the closure of the hearing should be considered structural error, resulting in automatic reversal of her conviction. We disagree. In the context of suppression hearings, the Supreme Court has stated that while "the defendant should not be required to prove specific prejudice in order to obtain relief," automatic reversal is not required. Waller, 467 U.S. at 49, 104 S.Ct. 2210. Rather, "the remedy should be appropriate to the violation." Id. at 50, 104 S.Ct. 2210. In Waller, for example, the Supreme Court did not reverse the defendant's conviction, but remanded for "a new, public suppression hearing." Id.

Were we otherwise affirming Waters' conviction, deciding what relief Waters is entitled to would be a difficult question. Her public-trial right in the omnibus pre-trial hearing is doubtless important, but it may have been vindicated by the public availability of a transcript. See id. (concluding that a new, public suppression hearing would vindicate the defendant's Sixth Amendment rights). We need not, however, decide how to resolve this question at this time. On remand, the district court should ensure that Waters' Sixth Amendment rights are protected by conducting any pretrial hearing on Waters' allegations of government misconduct, or similar issues, in public.

B.

Waters' second public-trial claim concerns jury selection in her case. When jury selection began, the court noted that it was aware of a concern "about the court-room being open to the public," and assured the parties that the courtroom would remain open. The procedure the judge used, however, prevented most of the public from observing the jury selection proceedings. The judge explained that there were many people in the venire and that he planned to seat all of them first and then allow members of the public to fill the remaining seats. Waters objected, arguing that "if there are too many jurors and not enough seats for the public, then we need to get a larger courtroom." The court rejected Waters suggestion that they transfer courtrooms, stating that Waters' request would "be accommodated the best we can, but we are going to ask you to let the jury be seated first."

At a break in voir dire proceedings, Waters' counsel stated for the record that "the court had two chairs brought in, and at the beginning of jury selection three spectators were allowed in, but . . . there were a large number of people denied entrance." Her counsel estimated that between 15 and 25 would-be spectators were not allowed to watch the proceeding.

Waters raised this claim for the first time after briefing before this court had been completed. She attributes her tardiness to the Supreme Court's decision in Presley v. Georgia, ___ U.S. ___, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam), which was decided after briefing was completed. In Presley, the Supreme Court reversed a conviction after a single individual was excluded from the courtroom during voir dire, holding that "trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." Id. at 725.

Given our disposition of Waters' other claims, we need not decide whether the district court's actions were "reasonable," or whether Waters waived this claim by failing to raise it in her opening brief. We emphasize, however, that the right to a public trial is an important right not only to a criminal defendant, but also to the public at large. See id. at 724-25. In cases where public interest is high, reasonableness may require the court to depart from its normal procedures to accommodate that interest. Should the issue arise again on remand, we are confident that, in light of Presley, the district court will take such measures as are necessary in order to accommodate the right to a public trial.

IV.

Waters next argues that the district court conducted an inadequate inquiry into adverse publicity that occurred during jury deliberations. We review a district court's actions regarding alleged improper influences on the jurors' deliberation for abuse of discretion. United States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986).

The jury began its deliberations on Friday, February 29, 2008. On the morning of Monday, March 3, before the jury was to resume deliberations following its weekend break, the local media reported that an arson had just occurred in Woodinville, Washington. The fire, which targeted houses on the "Street of Dreams" outside of Seattle, destroyed three homes and caused approximately $7 million in damages. Materials left at the fire indicated that ELF was responsible.

Before the jury began deliberating for the day, defense counsel informed the court that the Woodinville fire had been a prominent news story and that many news outlets were reporting that ELF was responsible. Some of the news coverage expressly mentioned Waters. Counsel therefore asked the court to question the jurors individually to determine if any of them had seen or heard the reports.

The court declined to question the jurors individually. Instead, it assembled the entire jury and asked the following question:

There's been a news story this morning on the news that could possibly influence or affect your deliberations. The Court has instructed you on your duties and responsibilities as jurors, and admonishing you as you go home from day to day and all of that.

Any of you now heard anything about this that you cannot set aside, or it would influence your deliberations here; anybody heard anything that would be different than the instructions I have given you as to what evidence you are to take to decide this case? Anybody that can't do that?

No juror indicated that the news story would affect her deliberations. The court then sent the jury to continue deliberating, instructing it "to follow the law as I have given it to you and carry that out and perform that function in that fashion."

The defense moved for a mistrial because of the news coverage, but the court denied the motion. Defense counsel later renewed his motion, filing an exhibit with examples of the news coverage, but the court adhered to its denial.

We must decide if the procedures the court followed were adequate to address and resolve the risk of prejudice, and must reverse if we conclude that "the probability of prejudice arose and was not eliminated." Smith, 790 F.2d at 795 (quoting Silverthorne v. United States, 400 F.2d 627, 644 (9th Cir. 1968)). In doing so, we are cognizant of the fact that a district court is in a far better position to gauge the impact of adverse publicity on a jury than we are. In analogous circumstances, we have cautioned that "[u]nless a trial judge clearly has erred in his estimation of the action needed to uncover and prevent prejudice from pretrial publicity, an appellate court should not intervene and impose its estimate." United States v. Polizzi, 500 F.2d 856, 880 (9th Cir. 1974).

We have not previously addressed the procedures that a district court should follow when adverse publicity occurs during deliberations. The Second Circuit requires district courts to conduct a three-step analysis to gauge the effect of adverse publicity on a jury:

[F]irst, to determine whether the coverage has a potential for unfair prejudice, second, to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, third, to examine individually exposed jurors — outside the presence of the other jurors — to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror's ability to decide the case fairly.

United States v. McDonough, 56 F.3d 381, 386 (2d Cir. 1995). Although we do not disagree with the Second Circuit's approach, we do not find it necessary to adopt a specific protocol at this time.

Nevertheless, we agree with Waters that the district court's statements to the jury were inadequate in light of the highly prejudicial nature of the publicity. Indeed, although district courts have discretion on these matters "discretion is not a substitute for duty." Silverthorne, 400 F.2d at 637. Thus, when "publicity is great, the trial judge must exercise correspondingly great care in all aspects of the case relating to publicity which might tend to defeat or impair the rights of an accused." Id. at 637-38.

The news stories covered an arson committed by the ELF, the same group of which Waters was accused of being a member. The stories not only may have caused a juror to ignore the evidence at trial and convict as an emotional reaction to this latest crime, they may also have suggested to the jury that there was a link between the arson and Waters. Indeed, a number of news outlets commented on the connection between the arson and jury deliberations in Waters' trial.

The district court's statement only minimally addressed this potential prejudice. It did nothing to determine whether any juror had read or heard about the news stories, let alone to determine how, if at all, any juror who knew of the publicity was affected by it. Instead, the court posed a general, compound question to the jurors en masse, vaguely asking whether any juror could not set aside in deliberations anything learned. In light of the high risk of prejudice caused by the publicity, we conclude that the "probability of prejudice arose" and that the district court's single, general question to the group was insufficient to eliminate it. See Smith, 790 F.2d at 795; see also Polizzi, 500 F.2d at 879 (explaining in the pretrial publicity context that when there is "substantial" publicity the inquiry "must not simply call for the jurors' subjective assessment of their own impartiality, and it must not be so general that it does not adequately probe the possibility of prejudice").

As a result of the district court's failure to make adequate inquiries regarding the news stories, we do not know whether any juror heard any of the information. If any juror was exposed to the publicity, we do not know the impact of that publicity on the juror. Given the high risk of prejudice that could have been caused by the publicity and our lack of reliable information as to the actual impact, we have no choice but to reverse.

Accordingly, we conclude that the district court's inadequate inquiry into this incident constitutes an independent ground for reversal.

The district court's inadequate inquiry was exacerbated by the court's later order prohibiting all contact between counsel and the jurors. With this no-contact order in place, Waters' counsel was unable to determine whether any juror was affected by the adverse publicity. In light of our disposition of this case, we need not decide if the district court erred in issuing its no-contact order. Because we reverse Waters' conviction, however, we also vacate the order.

V.

Finally, Waters claims that the district court erred when it denied her motion for the production of surveillance materials. We review this claim for abuse of discretion. United States v. Bissell, 634 F.2d 1228, 1233 (9th Cir. 1980).

Waters bases her request for the production of surveillance materials exclusively on 18 U.S.C. § 3504. That section requires the government to disclose whether or not a party was the victim of illegal surveillance. See 18 U.S.C. § 3504 ("[U]pon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act . . . the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.").

A party's right to learn of illegal surveillance is not absolute. "[B]ecause responding to ill-founded claims of electronic surveillance would place an awesome burden on the government, a claim of government electronic surveillance of a party must be sufficiently concrete and specific" before the government must respond. United States v. Tobias, 836 F.2d 449, 452-53 (9th Cir. 1988). And when the government does respond, "the specificity . . . of the government's response is measured by the specificity and strength of the witness's allegations." In re Grand Jury Investigation, 437 F.3d 855, 857 (9th Cir. 2006) (per curiam). A "general or unsupportable claim requires only a general response." Id. (internal quotation marks and citation omitted).

Waters' request for disclosure of surveillance materials was neither concrete nor specific. Her motion relied only on generalized statements about government surveillance programs and included no direct evidence that suggested that she was subjected to warrantless wiretapping or other forms of illegal surveillance.

In light of the general nature of Waters' showing, we cannot say that the district court abused its discretion in denying Waters' motion. The government's responsive pleadings asserted that it had or would soon produce "all of the surveillance materials obtained, or received, by the various agencies involved in this investigation during the course of the investigation." The government also represented that "[n]o other electronic surveillance was conducted or assembled by anyone connected with this investigation."

The government's response was commensurate with Waters' showing. Accordingly, we find no error in the district court's ruling.

VI.

While the evidence against Waters may have been sufficient to sustain her conviction, our review of the record does not leave us convinced that her conviction was fairly obtained. The judgment of the district court is therefore reversed and the case remanded for further proceedings consistent with this opinion. The district court's no-contact order is vacated.

REVERSED and REMANDED.

¶ 4. Prevost confirmed that the objects he remembers seeing on the DVL Site "did not bear Niagra Mohawk's name, initials or any other symbols or logos indicative of Niagra Mohawk ownership or sourcing." Prevost Aff. ¶ 5 (Dkt. No. 44-4).

Prevost also recalls observing as a boy "the presence of [gray] objects which [he] understand[s] to be electrical capacitors at the present DVL Site." Prevost Decl. ¶ 8. The capacitors "bore no signs of wear and tear." Prevost Aff. ¶ 9(c). Prevost further recalls observing "soils or other fill material" being brought to the DVL Site, where they were used for road leveling and other development projects on that property. Prevost Decl. ¶ 9.

B. Procedural History

DVL initiated this action on October 11, 2007. Compl. GE and the Niagra Mohawk Defendants filed Answers with Counterclaims and Cross-claims on February 4, 2008 and February 12, 2008, respectively. Dkt. Nos. 24, 27. A Uniform Pretrial Scheduling Order ("UPSO") issued on March 19, 2008 set a discovery deadline of March 15, 2009 and required Plaintiff to identify experts and serve the experts' written reports 90 days prior to that discovery deadline; Defendants were ordered to do the same no later than 45 days prior to the March 15, 2009 date. Dkt. No. 31 ¶ 6. The parties were ordered to identify all experts to be used to contradict opposing parties' expert testimony and to provide those experts' written reports no later than 30 days from the discovery deadline. Id. On December 2, 2008, the UPSO was amended, and the discovery deadline extended to July 15, 2009. Dkt. No. 35. On July 22, 2009, over Defendants' objections, the Magistrate Judge assigned to this matter granted Plaintiff's request for an additional extension of the discovery deadline until to January 1, 2010, despite the fact that Plaintiff had "yet to serve responses to outstanding written discovery demands from defendants and ha[d] not yet served expert witness disclosures, essential in this case, although the deadline for such disclosures passed on or about April 15, 2009." Scheduling Order (Dkt. No. 37).

On March 1, 2010, DVL filed its Motion for partial summary judgment ("DVL Motion") (Dkt. No. 40) on the issues of GE and NMPC's liability to DVL pursuant to CERCLA and common law indemnification principles for costs incurred by DVL in response to hazardous waste at the DVL Site, see Mem. in Supp. of DVL Mot. (Dkt. No. 40-14) at 1; on the same day, GE filed a Motion for summary judgment (Dkt. No 38) to dismiss all claims in the Complaint and all cross-claims asserted against it, and the Niagra Mohawk Defendants filed a separate Motion for summary judgment (Dkt. No. 44) to dismiss all claims in the Complaint against them. As an attachment to its Motion, DVL submitted the Declaration of James Ludlam ("Ludlam I"), an engineer employed by DEC between 1977 and 2008, whose professional experience with DEC "included working on hazardous waste sites for which [GE] had either primary or sole responsibility. . . . [including] GE's Hudson Falls and Fort Edward Plants." Ludlam I Decl. (Dkt. No. 40-12) ¶ 10. DVL attached a Supplemental Declaration from Ludlam ("Ludlam II") with its filings in opposition to Defendants' Motions for summary judgment. Ludlam II Decl. (Dkt. No. 53-2).

III. MOTION TO STRIKE

A. Advance Disclosure of Expert Witness' Identity and Written Reports

Federal Rule of Civil Procedure 26(a)(2)(A) requires a party to disclose "the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." FED. R. CIV. P. 26(a)(2)(A); see also FED. R. CIV. P. 26(e) (requiring parties to timely supplement Rule 26(a) disclosures);Lamere v. New York State Office for the Aging, No. 03-CV-0356, 2004 WL 1592669, at *1 (N.D.N.Y. July 14, 2004) ("the identity of any witness who may be used to provide expert testimony, whether specifically retained for that purpose or not, must be disclosed."). Rule 26(a)(2)(B) requires the additional disclosure of "a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony." FED. R. CIV. P. 26(a)(2)(B); Lamere, 2004 WL 1592669, at *1; see also FED. R. CIV. P. 26, 1993 Advisory Committee Notes ("Paragraph [a](2)(B) requires that persons retained . . . to provide expert testimony . . . must prepare a detailed and complete written report . . ."). Disclosures made pursuant to Rule 26(a) must be provided "at the times and in the sequence that the court orders." FED. R. CIV. P. 26(a)(2)(C).

Under Federal Rule of Civil Procedure 37(c), "[i]f a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that . . . witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." FED. R. CIV. P. 37. In determining whether preclusion is appropriate, a court must consider "(1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance." Softel, Inc. v. Dragon Med. Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citation omitted).

Rule 26(a)(2)(A) does not apply to lay witnesses, that is, those whose testimony is limited to "opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge. . . ." FED. R. EVID. 701. Where, however, the witness' testimony is based on scientific, technical, or other specialized knowledge,see FED. R. EVID. 702, the interplay between Rule 26(a)(2)'s mandatory disclosure and Rule 37(c)(1)'s prohibition on the use of untimely expert testimony, prevents the unfair "sandbagging" of adverse parties with new evidence. Deluca v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 06 Civ. 5474, 2008 WL 857492, at *12 (S.D.N.Y. Mar. 31, 2008) (citing Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004)); see also Haas v. Delaware and Hudson Ry. Co., Inc., No. 1:04-CV-1503, 2007 WL 766324, at *2 (N.D.N.Y. Mar. 8, 2007) (Kahn, J.). Because preclusion of evidence under Rule 37 is a "drastic remedy" courts recognize that it "should be exercised with caution." Haas, 2007 WL 766324, at *2 (quoting Ventra v. United States, 121 F. Supp. 2d 326, 332 (S.D.N.Y. 2000)).

B. Declarations of James Ludlam

On March 1, 2010, DVL filed its Motion for partial summary judgment and supplemented that Motion with a Declaration from James N. Ludlam, a long-term employee of DEC who worked on several hazardous waste sites contaminated with PCBs for which GE had primary or sole responsibility, and others on which NMPC was a party responsible for PCB contamination. Ludlam I Decl. (Dkt. No. 40-12) ¶¶ 10, 15. Ludlam states that through his work, he became familiar with State and Federal statutes and Rules and Regulations pertaining to the handling and disposal and investigation and remediation of hazardous waste disposal sites, as well as the requirements of the National Contingency Plain ("NCP") adopted pursuant to CERCLA. Id. ¶ 8.

Ludlam's experience includes his working at the Fort Edwards Site where he was responsible for the review and approval of investigation and response activities. Second Supplemental Ludlam Decl. (Dkt. No. 55-1) ("Ludlam III Declaration") ¶¶ 8-9. Attached to its Memorandum in opposition to Defendants' Motions for summary judgment (Dkt. No. 53), DVL submitted a Supplemental Declaration from Mr. Ludlam. Ludlam II Decl. (Dkt. No. 53-2). Therein, Ludlam explains that "the purpose of this Supplemental Declaration is to respond to and clarify certain matters which (a) relate to DVL's compliance with the "National Contingency Plan" [] and (b) relate to the responsibility of the General electric Company [] and Niagra Mohawk Power Corporation. . . ."Id. ¶ 6.

DVL had named Ludlam, who is not a party and has no interest in the outcome of the litigation, Ludlam I Decl. ¶ 2, as a potential lay witness, see Engle Decl., Ex. A, DVL Initial Disclosures (Dkt. No. 55), but had not identified him as an expert witness during the discovery period. Ludlam was not retained nor specifically employed to provide expert testimony. Ludlam III Decl. ¶ 10. Ludlam begins his Declarations by stating that he "ha[s] personal knowledge of the facts set forth in this declaration." Ludlam I Decl. ¶ 1; Ludlam II Decl. ¶ 1; see also Ludlam III Decl. However, rather than provide lay opinions based on personal knowledge, Ludlam details his education, expertise, and qualifications, and ultimately states conclusions that the presence of certain Aroclor types found on the DVL Site indicate that they were of GE and Niagra Mohawk origin. Ludlam I Decl. ¶¶ 12-16.

Ludlam states that he is "familiar with GE's disposal practices with respect to PCBs and PCB-containing wastes. GE was responsible for the indiscriminate and widespread disposal of PCBs and PCB wastes at locations in Washington, Warren, Saratoga and Rensselaer Counties." Id. ¶ 13. Ludlam states that his professional experience with DEC also made him familiar with NMPC's disposal practices. For example, he worked at the "Wallace" Site where "NMPC was responsible for PCB contamination due to the disposal of electrical transformers which contained PCB fluid." Id. ¶ 15. From that, Ludlam became aware that "NMPC transformers were typically characterized by the presence of Aroclor 1260." Id. ¶ 16.

Ludlam opines that DVL's response to the contamination of the DVL Site was consistent with DEC Rules and Regulations and the National Contingency Plan. See generally, Ludlam I Decl; see id. ¶¶ 27-31. In his Supplemental Declaration, Ludlam asserts that the correct characterization of the actions taken by DVL in response to the discovery of PCB contamination on the DVL Site is "removal" rather than "remedial" in nature, and such removal actions were "necessary and proper" in light of DEC criteria and assessment of the contamination. Ludlam II ¶ 7. Ludlam describes his own issuance of a "no further action letter" after DVL took its initial clean-up actions, and then describes his "understanding" of further actions and investigations taken by DVL following in a second-stage cleanup. Ludlam assesses the results of those investigations in light of DEC clean-up standards and Regulations. He notes that "[i]t was of no significance that the further sampling was performed in the context of a possible transaction on the property" and that "[t]here was no need for undertaking a formal public review and comment period . . ." Id. ¶¶ 7-10. Ludlam compares the clean-up activities DVL undertook with those taken in other contaminated sites the Fort Edwards/Hudson Falls area where the PCB contamination was caused by GE. Id. ¶¶ 10-11. Defending his conclusion that GE is the responsible party for contamination at the DVL Site, Ludlam states that GE's claim groundwater sampling indicates that the soil contamination at the DVL Site is not attributable to GE is incorrect, and that the groundwater results only indicate that groundwater flow from the GE plant site has not impacted groundwater quality at DVL. He then opines that "the reports of waste capacitors at the DVL Site are consistent with GE's historic practice of disposing waste capacitors at other locations in the Fort Edward area." Id. ¶ 14.

Ludlam reiterates his conclusion that NMPC is also a responsible party, noting that there is no significance in GE or NMPC's not being named in the DEC Report as a potentially responsible party. Id. ¶ 16. He then states his objections to the claims he understands NMPC has made in its defense. Ludlam emphasizes that his conclusion that NMPC is indeed a responsible party is based on the presence of Aroclor 1260 which, while used in various applications, "based upon [his] knowledge and experience at DEC, the most common usage of Aroclor 1260 was in electrical transformers. NMPC was the electrical service provider in the area. . . . Given the reports of the historical presence of waste transformers at the DVL Site, the conclusion which [he] reached was that the Aroclor 1260 contamination was attributable to NMPC." Id. ¶ 22.

First, the Court finds that Ludlam's Declarations constitute expert testimony. Many of the "observations" and essentially all of the "conclusions" that Ludlam offers are not rationally based on his first hand perceptions, but are rather based on scientific, technical, or specialized knowledge. Ludlam's employment at DEC undoubtedly exposed him to first-hand knowledge about many aspects of the PCB contamination of the DVL Site and other sites in the area. However, DEC did not conclude that GE or NMPC was the origin of the PCB contamination at the DVL Site. See DEC Report at 3-19, 3-20, 4-1. Hence, Ludlam cannot (and does not) now testify that he observed, first-hand facts that would reasonably lead him to the conclusions he draws in his Declarations. DVL offers Ludlam's Declarations not as an account of his personal role in the clean-up effort or his personal knowledge of the source of the PCBs; rather, Ludlam's testimony offers the opinion of a highly qualified individual drawing upon his expertise to reach conclusions surpassing his own experience of the events at issue. Accordingly, his Declarations must be construed as offering expert testimony not properly disclosed. This finding is true for all of Ludlam's initial conclusions and determinations, Ludlam I Decl. ¶¶ 27-31, with the exception of his first-hand observation of "instances during which ponding or flooding took place in the area of the south parking lot [of the GE Site], which resulted in the flow or migration of water across Upper Broadway to the present DVL Site." Id. ¶ 30(d).

In recalling this factual observation, Ludlam does not claim to know whether the ponding water contained PCBs.

Other aspects of Ludlam's Declarations, for example his familiarity through his professional experience with GE's historical disposal practices, his providing a copy of the DEC Report to DVL, etc. are proper lay witness opinion. However, many of his statements, including his "conclusions" and "determinations," are not. Ludlam's Supplemental Declaration, makes this finding inescapable, as it presents testimony and legal conclusions greatly exceeding the bounds of lay testimony.

DVL contends that it was not required to provide any disclosure with regard to Ludlam because (a) he was not a retained expert, and (b) the disclosure of Ludlam as a lay witness with knowledge of the remedial actions undertaken by DVL were sufficient to give Defendants notice and opportunity to depose Ludlam or prepare a defense against his presumed testimony. DVL Mem. in Opp'n to GE Mot. to Strike (Dkt. No. 55-2) at 2-6. These arguments are without merit. First, as noted, Rule 26(a)(2)(A)'s requirement that a party disclose the identity of all experts witnesses it may use to present evidence is distinct from the additional requirement in Rule 26(a)(2)(B), which requires the disclosure of written reports only from experts retained for the purpose of the litigation. FED. R. CIV. P. 26(a)(2); Lamere, 2004 WL 1592669, at *1. DVL did not identify Ludlam as an expert as required by Rule 26(a)(2)(A).

The fact that DVL disclosed Ludlam as a possible lay witness does not cure this oversight. Ludlam was identified as a DEC employee with knowledge of the DEC environmental investigation and the remediation actions taken by DVL, see Engel Decl., Exs. A-B (Dkt. No. 55). This however, is insufficient to put Defendants on notice that Ludlam, one among many potential fact witnesses, would testify as to conclusions drawn separately and distinct from those drawn by DEC in its Report. That is, given that the DEC Report did not identify the source of the PCB contaminants, naming Ludlam as a DEC employee with knowledge of the environmental investigation would not alert the Defendants to the possibility that he might testify as to conclusions contrary to the findings of that investigation.

Because DVL did not properly disclose Ludlam as an expert and only provided his Declarations after the close of discovery, GE and Niagra Mohawk did not have the opportunity to anticipate, challenge, or counter Ludlam's statements, assessments, methods, or conclusions. Admitting the Ludlam Declarations for the purpose of the Court's determination of the various summary judgment Motions would greatly prejudice the Defendants.

DVL twice sought and was granted discovery deadline extensions for providing expert disclosures. See July 22, 2009 Order (Dkt. No. 37) (granting Plaintiff a second "lengthy extension" for expert disclosure after noting that expert witnesses will be "essential in this case" and warning that no further extensions will be granted to Plaintiff).

Because Ludlam was not retained for the purpose providing expert testimony, DVL was not required to disclose a Rule 26(a)(2)(B) written report; it was, however, required to disclose his identity as an expert. See Lamere, 2004 WL 1592669, at *1.

The Court recognizes that Ludlam's testimony is extremely important to DVL's case, and it agrees with the Magistrate Judge's assessment that expert witness testimony in this case is "essential." Dkt. No. 37. Yet, DVL did not secure any expert testimony aside from Ludlam's, which it did not disclose as such. Despite the recognized importance of Ludlam's testimony, the exclusion of that testimony results wholly from DVL's own failures — despite the multiple extensions the Magistrate Judge granted it — to secure and disclose its experts. None of the Defendants did anything to prevent DVL from timely disclosing Ludlam or any other source as an expert; nor was Ludlam unknown or unavailable to DVL. Rather, having been warned of the need for expert support and knowing of an available source for that support, DVL failed to meet the minimum requirements of Rule 26(a)(2)(A). As a result, the Court refuses to consider the Ludlam Declarations and grants GE's Motion to strike that testimony.

C. Declarations of Mark Millspaugh

DVL supplemented its Opposition to Defendants' summary judgment Motions with a Declaration from Mark Millspaugh, a former DEC employee and current President of an engineering firm. Millspaugh Decl. (Dkt. No. 53-3). Mr. Millspaugh describes "matters in which [he] was professionally involved during [his] employment with DEC," including his work on the "Wallace Site" and other PCB contaminated sites located throughout New York. Id. ¶ 5-10. Based on that professional experience, Millspaugh states that he is "familiar with the historic practices of both the NMPC and GE with respect to the handling and disposal of PCB-containing wastes and materials. . . ." Id. ¶ 12. Millspaugh rejects any assertion that NMPC conveyed all of its retired transformers to the Wallace or Cobleskill sites, where the PCB contents were "stripped out." Id. ¶¶ 13-14. He attests to the fact that PCBs of NMPC and GE origin were present at multiple disposal sites in Eastern New York. Id. ¶ 15. He adds that "it was GE's practice to dispose of PCB materials and items by conveying such materials an items into the scrap or salvage market. GE also conveyed PCB fluids for use by third parties. . . ." Id. ¶ 16.

DVL filed the Millspaugh Declaration on March 16, 2010, the same date that GE filed its Motion to strike the Ludlam I Declaration. Understandably, GE's Motion to strike does not address the Millspaugh Declaration; in its Reply to DVL's Response in opposition to that Motion GE asks the Court to strike Millspaugh's Declaration. Dkt. No. 61 at 7-9. In that Reply, GE argues that Millspaugh's Declaration should be struck as (1) Millspaugh was never identified as any kind of witness, lay or expert, in DVL's disclosures and (2) Millspaugh's Declaration constitutes improper expert testimony.

To prevent unfairness to the litigants, courts apply a general rule that "new arguments may not be made in a reply brief." Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (citing Knipe v. Skinner, 999 F.2d 708, 711 (2d Cir. 1993)); see also Shanks v. Village of Catskill Bd. of Trs., 653 F. Supp. 2d 158, 165 (N.D.N.Y. 2009). Accordingly, the Court will not consider GE's argument that the Millspaugh Declaration should be struck since that argument was made in a reply brief. The Court acknowledges that GE could not have known of Millspaugh's Declaration when it initially filed its Motion to strike, but it could have requested leave to amend that Motion or made a separate motion on this issue. As it stands, DVL has not been afforded an opportunity to respond to GE's arguments. The Court, therefore, shall not strike the Millspaugh Declaration.

IV. SUMMARY JUDGMENT

A. Standard of Review

The Second Circuit "recognize[s] in CERCLA's context that summary judgment is a `powerful legal tool []' that can `avoid lengthy and perhaps needless litigation.'" B.F. Goodrich v. Betkoski, 99 F.3d 505, 521 (2d Cir. 1996) (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir. 1993)). Courts adjudicate motions for summary judgment in the CERCLA context under the same standard as in any other case. Id.

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). A fact is material only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Byrnie v. Town of Cromwell Bd. of Ed., 243 F.3d 93, 101 (2d Cir. 2001).

The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether the movant has met that burden, the court resolves all ambiguities and draws all permissible factual inferences in the light most favorable to the non-moving party. See Liberty Lobby, 477 U.S. at 255. If the moving party meets its initial burden, the non-moving party must go beyond the pleadings and to "do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986). "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).

"[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Summary judgment is therefore appropriate "only when no reasonable trier of fact could find in favor of the nonmoving party." Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991). Thus, in the CERCLA context, "[s]ummary judgment is only proper when a defendant establishes it is not liable at all under CERCLA — namely, it is not a PRP under the statute, there is no plausible evidence that it discharged hazardous materials, or it is eligible for one of the three affirmative defenses available under § 107." Niagra Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 132 (2d Cir. 2010) (citing 42 U.S.C. § 9607(b)).

B. CERCLA

Congress enacted CERCLA to "assur[e] that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions." S. Rep. No. 96-848, at 13 (1980). A broad remedial statute, CERCLA "is designed to encourage prompt and effective cleanup of hazardous waste sites."Niagra Mohawk, 596 F.3d at 120 (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197-98 (2d Cir. 1992)). Under CERCLA, "property owners are strictly liable for the hazardous materials on their property, regardless of whether or not they deposited them there." Id. (citations omitted). Owners can avoid liability under the statute only if the pollution results from an act of God or an act of war, or if they establish they are "innocent owners." 42 U.S.C. § 9607(b). However, CERCLA allows owners of polluted property to seek reimbursement from another "potentially responsible party" ("PRP"). 42 U.S.C. § 9607(a). A party will qualify as a PRP if it falls into any of the four categories provided for under the statute, namely:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. . . .

42 U.S.C. § 9607(a).

For purposes of CERCLA, the term "person" includes a corporation or commercial entity. 42 U.S.C. § 9601(21).

Under CERCLA, traditional causation principles are "relaxed" such that the party seeking costs need not show that a specific PRP's waste caused the incurrence of cleanup costs. Niagra Mohawk, 596 F.3d at 130. Rather, the party seeking costs need only show, that "`there was a release or threatened release, which [] caused incurrence of response costs, and [] that the defendant generated hazardous waste at the cleanup site. What is not required is that the government [or another authorized party] show that a specific defendant's waste caused incurrence of cleanup costs.'" Id. (quoting Alcan, 990 at 721) (alterations in original). CERCLA thus "relaxes" but does not eliminate the causation requirement: a plaintiff need not show a causal link between that particular waste and the response costs the plaintiff incurred, but it must demonstrate that a defendant deposited hazardous waste at the site in question. New Jersey Tpk. Auth. v. PPG Indus., Inc., 16 F. Supp. 2d 460, 469 (D.N.J. 1998) (citing Town of New Windsor v. Tesa Tuck, Inc., 935 F. Supp. 300 (S.D.N.Y. 1996)).

Before a qualifying PRP may be found liable, the property owner must further establish that the clean-up site is a "facility" as defined by 42 U.S.C. § 9601(9); there is a release or threatened release of hazardous substances at the facility; plaintiff has incurred costs responding to that release or threatened release; and those incurred costs conform to the National Contingency Plan ("NCP"). Prisco v. A D Carting Co., 168 F.3d 593, 602-03 (2d Cir. 1999); Alcan, 990 F.2d at 719-20; 42 U.S.C. § 9607(a)(4).

A "facility" includes "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located." 42 U.S.C. § 9601(9)(B).

Because in certain circumstances "available evidence of who did what at the relevant site is often dependent on inference[, w]hen determining CERCLA liability, `there is nothing objectionable in basing findings solely on circumstantial evidence, especially where the passage of time has made direct evidence difficult or impossible to obtain.'" Id. at 131 (quoting Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 547 (6th Cir. 2001). Thus, "CERCLA liability may be inferred from the totality of the circumstances as opposed to direct evidence." Id. at 136.

C. DVL's Motion for Partial Summary Judgment

1. Defendants' Liability Under CERCLA

DVL moves for partial summary judgment as to the liability of GE and NMPC under CERCLA for the contamination at the DVL site.See generally DVL's Mem. in Supp. Mot. for Partial Summ. J. (Dkt. No. 40-14) ("DVL's Summ. J. Mem."). DVL asserts that GE and NMPC qualify as PRPs under 42 U.S.C. § 9607(a)(3) as arrangers for disposal of a hazardous substance. DVL contends that this conclusion is amply supported by the following: 1) PCB wastes are hazardous substances under CERCLA; 2) GE and NMPC historically discarded or conveyed for disposal PCB-containing wastes; 3) that GE and NMPC intentionally disposed of PCB wastes on the DVL site; 4) the DVL Site qualifies as a facility as the PCB contamination on that Site attests to the fact that hazardous substances were deposited, stored, disposed of, or placed, or otherwise come to be located there; 5) that DVL incurred costs related to the past release and presence of PCBs at the DVL Site; and 6) that DVL's costs and response were consistent with an conformed to the NCP.

Per the above discussion, the Millspaugh Declarations and admissible portions of the Ludlam Declarations support this statement.

Assuming arguendo that DVL has made a prima facie case with regard to the other elements, it has clearly failed to do so with regard to point three above. To make a prima facie case that GE and/or NMPC qualifies as an "arranger" under CERCLA § 107(a)(3), DVL must show that one or both "by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances. . . ." See 42 U.S.C. § 9607(a)(3). While "CERCLA does not specifically define what it means to `arrang[e] for' disposal of a hazardous substance. . . . under the plain language of the statute, an entity may qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance." Burlington Northern and Santa Fe Ry. Co. v. United States, ___ U.S. ___, 129 S. Ct. 1870, 1879 (2009) (citations omitted). DVL attempts to show Defendants intentionally disposed of hazardous substances first by citing Mr. Prevost's description of seeing PCB wastes of GE and NMPC origin found on the Caputo Garage on the present day DVL Site. Mem. in Supp. DVL Mot. (Dkt. No. 40-14) at 5. Mr. Prevost describes no such thing.

With regard to GE, Mr. Prevost states only that a GE facility is nearly adjacent to the DVL Site and that "[i]t is his understanding and knowledge that electrical capacitors were manufactured at the GE facility." Prevost Decl. ¶ 5. Prevost recounts his seeing "objects which [he] understand[s] to be electrical capacitors" which were "gray in color" and "part of the apparent scrap or salvage operations at the Caputo property."Id. ¶ 8. Contrary to DVL's assertion, he does not assert that these capacitors came from GE or contained PCB wastes.

DVL's claim that Mr. Prevost's Declaration confirms the Niagra Mohawk origin of PCB waste on the DVL site is also incorrect. Mr. Prevost states only that he observed "[v]arious types of discarded equipment and other items" on the property, including "large `bucket' objects" that he believes were electrical transformers and that those transformers look virtually identical to transformers that Niagra Mohawk owns. Prevost Decl. ¶ 7. However, Mr. Prevost affirms that he has "no personal knowledge of the source of the transformers I observed on the [DVL] Site" and that the objects he remembers seeing on the DVL Site "did not bear Niagra Mohawk's name, initials or any other symbols or logos indicative of Niagra Mohawk ownership or sourcing." Prevost Aff. ¶¶ 4-5.

DVL also claims that "given GE's historical practices with respect to its disposition of PCBs and PCB wastes, there is no question that GE intended to dispose of PCBs which were present at the DVL site. . . . Likewise, NPMC's historical practices prior to 1979 establish that NMPC intended to dispose of wastes containing PCBs" Mem. in Supp. DVL Mot. at 6. This assertion overstates CERCLA "arranger" liability. Assuming the truth of DVL's historical practices claims, DVL utterly fails to meet its burden of linking either Defendant's alleged disposal of or intent to dispose of PCBs to the DVL site. See Alcan, 990 F.2d at 721 (to prove CERCLA "arranger" liability, a plaintiff must show, inter alia, "that the defendant generated hazardous was at the clean-up site") (emphasis added); New Jersey Tpk. Auth., 16 F. Supp. 2d at 469 ("it is not enough that [the plaintiff] simply prove that each [] Defendant produced [hazardous waste] and that [waste] was found at each of the sites in question and ask the trier of fact to supply the link. Rather, in order to prevail, it must prove that each Generator Defendant deposited (or caused to be deposited) [the waste] at each of the sites in question") (citing inter alia Tesa Tuck, Inc., 935 F. Supp. at 304) aff'd 197 F.3d 96, 108-109, 112 (3d Cir. 1999) (evidence that merely "presents probabilities rather than proof," "relies upon a collection of facts that could be summarized as `if it is there, it must be theirs,'" or is "vague and imprecise, of questionable reliability, and therefore not sufficiently probative to create an issue for trial" is insufficient to hold a party liable under CERCLA); see also Dana Corp. v. Am. Standard, Inc., 866 F. Supp. 1481, 1493 (N.D.Ind. 1994) ("To establish CERCLA liability, the plaintiffs must prove . . . that each defendant's waste was disposed of at the Site") (footnote omitted).

None of the "historical practices" referenced by DVL evinces any Defendant's disposal or intent to dispose of hazardous waste at the subject property. DVL has not presented additional evidence, including the Prevost testimony, that shows that no issue of material fact exists as to this issue and to Defendants' classification as "arrangers" under § 9607(a)(3). Viewed in the light most favorable to Defendants, Plaintiff's submissions fail to meet the standard required to sustain a grant of summary judgment as to Defendants' liability under CERCLA.

2. Defendants' Liability Under the Principle of Common Law Indemnity

The above discussion demonstrates that DVL is unable to establish Defendants' culpability as a matter of law. This finding compels the denial of DVL's Motion for summary judgment under common law indemnification. See, e.g., Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 561-63 (1973) (evidence of negligent performance related to the injury is required for liability to attach to the party charged with a duty to indemnify).

Additionally, insofar as DVL's indemnification claim seeks damages, the relief sought is for the same damages specified in its CERCLA claim. Compare Compl. ¶¶ 37-41 with id. ¶¶ 31-36. CERCLA "precludes `recovering compensation for the same removal costs or damages or claims' under both CERCLA and state or other federal laws." State of New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir. 1985) (citing 42 U.S.C. § 9614(b)). Accordingly, the Second Circuit has ruled that CERCLA preempts state law indemnification claims. Niagra Mohawk, 596 F.3d at 139 (citing Bedford Affiliates v. Sills, 156 F.3d 416, 427 (2d Cir. 1998)). Hence, DVL's Motion for summary judgment is denied as to DVL's indemnification claim.

D. General Electric and Niagra Mohawk Defendants' Motion for Summary Judgment

1. CERCLA Liability

GE and the Niagra Mohawk Defendants both move for summary judgment as to DVL's CERCLA claim against them. Dkt. Nos. 38, 44. Their arguments essentially mirror those used to defend against DVL's Motion, focusing primarily on the lack of evidence that would qualify them as PRPs under CERCLA and on DVL's failure to conform to the NCP. In addition to the arguments that it made in support of its own Motion for summary judgment as to CERCLA liability, DVL asserts that the circumstantial evidence surrounding this case raise issues of triable fact as to GE and NMPC's qualifying as PRPs with regard to the DVL Site. Because the Court finds that DVL has failed, as a matter of law, to establish that Defendants qualify as PRPs, it grants Defendants' Motions without reaching the issue of whether DVL's conduct conformed to the NCP.

a. General Electric

GE supports its Motion for summary judgment by noting that the only potentially applicable PRP categories provided for under 42 U.S.C. § 9607(a), is arranger. GE Mem. in Supp. Mot. for Summ J. (Dkt. No. 38-2) at 7-8. It then points to the lack of any evidence linking its activities to the DVL Site, focusing on the inconclusive DEC Report, the negative results from the monitoring wells, the absence of any expert opinion as to GE's being the source of contamination, and the immateriality of the Prevost testimony. Id. at 7-12.

DVL's response to both GE's Motion and the Niagra Mohawk Defendants' Motion largely rests on its assertion that sufficient circumstantial evidence exists to raise issues of material fact as to Defendants' responsibility under CERCLA's relaxed causation requirement. However, DVL has failed to provide any evidence of a nexus between any Defendant's waste and the contamination at the DVL site; it has therefore failed to establish Defendants' liability as PRPs under CERCLA.

DVL's CERCLA claim against GE appears to rest largely on the fact that GE owns the property adjacent to the DVL Site; the soil on that property is PCB-contaminated; Mr. Ludlam observed surface water migration from the GE Fort Edwards property to the DVL Site; Mr. Prevost remembers seeing what he believed were electrical capacitors on the subject property when it housed the Caputo Garage; the PCBs contaminating the subject property match those used at GE's Fort Edwards Site; and GE's history of unsafe PCB disposal practices. Mem. in Resp. to Defs.' Summ. J. Mot. (Dkt. No. 53) ("DVL's Opp'n Mem.") at 4-5. Crucially, however, DVL is unable to support its claim that GE is a PRP with evidence that GE deposited, or arranged to have deposited, PCB contaminated wastes on the DVL Site.

DVL does not know of hazardous materials of GE origin at the DVL Site. GE was not identified as a source of contamination in the DEC Report, nor has any GE material been identified during the removal or remediation activities taken since the issuance of that Report. The monitoring wells that GE installed to determine whether there was any migration of contamination from the GE Property to the other areas including the DVL Site have always tested negative. Mr. Prevost's accounts do not identify GE as the source of the material that he saw at the Caputo Garage. Mr. Ludlam's account of water flowing from the GE Property to the DVL Site is insufficient to establish GE as a PRP without evidence that the water contained PCB contaminants. Finally, GE's activities at other sites cannot substitute for evidence of its activities in relation to the property involved in this dispute.See New Jersey Tpk. Auth., 16 F. Supp. 2d at 469. Without providing any evidence that GE disposed of hazardous substances at the relevant site, DVL thus fails to satisfy even the relaxed liability standard under CERCLA.

DVL looks for support in the Second Circuit's ruling in Niagra Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010) that direct evidence linking a defendant to a hazardous waste site is not necessary to avoid summary judgment in CERCLA cases. DVL's Opp'n Mem. at 2. It then asserts that the circumstantial evidence in this case is sufficient to establish, or at least raise issues of triable fact, as to Defendants' CERCLA liability for the DVL Site. Id. DVL mischaracterizes the Second Circuit's holding. First, in Niagra Mohawk, the court found summary judgment was inappropriately granted because each of the defendants either owns or previously owned the contaminated property (King, Chevron, U.S. Steel) or conducted operations that evidence in the record showed were specifically related to the pollution at the relevant site (Portec). 596 F.3d at 132-36. Second, while the determination that U.S. Steel was liable as a PRP based on its prior ownership of the contaminated land was "inferred from the totality of the circumstances as opposed to direct evidence," the circumstances supporting that finding are quite different from those presented here. U.S. Steel and its predecessor were, indisputably, former owners of the relevant property. The Second Circuit based its holding on this ownership, rather than on the alternative theory of arranger liability. Id. at 135-36. Direct evidence of U.S. Steel or its predecessor's alleged dumping was unavailable, in part, because that ownership occurred approximately 100 years prior. Nevertheless, certain experts evaluating the circumstantial evidence concluded that U.S. Steel did contribute to the deposit of the hazardous waste; under these circumstances, the court found that expert testimony was sufficient to preclude summary judgment.

GE, unlike U.S. Steel, has never owned the subject property at issue here. The length of time that has passed since GE's allegedly violative acts occurred is much shorter than in the case of U.S. Steel. More importantly than the difference in duration, DVL has not provided any expert to evaluate whatever circumstantial evidence might exist. In fact, DVL's defends the Ludlam materials against GE's Motion to strike, in part by contending that those materials are not expert testimony, see generally Engel Decl. (Dkt. No. 55); DVL Mem. in Opp'n to GE Mot. to Strike (Dkt. No. 55-2); to the extent they are expert opinion, that material is stricken, see supra sec. III.B.

GE's position is also dissimilar to that of defendant Portec in the Niagra Mohawk case. Id. at 134-35. The Second Circuit found that summary judgment in favor of Portec was inappropriate in light of the latter's status as an "operator." Id. The court determined that Portec qualified as a PRP because "there is evidence that Portec's activities on its property resulted in hazardous waste deposits. . . . More importantly . . . there is evidence that these hazardous deposits made their way into the [] Creek" which, "in turn, passed through" the contaminated property. Id. at 135. Evidence showed that the creek left behind hazardous materials, and experts opined that these materials originated at the Portec plant. Id.

In the instant action, there is evidence that GE's site was contaminated. The comparison with Portec, however, ends there. DVL offers no evidence that the deposits on GE's land made their way down to the DVL Site. The DEC Report, which looked into exactly this issue, found the source of the DVL Site contamination to be "unknown." Ludlam testified that he saw surface water migrate from the GE Site to the DVL Site, but he does not assert it was PCB contaminated. Again, DVL has not presented an expert to opine that it was and that this migration of surface water explains the contamination at the DVL Site. In the absence of eyewitness testimony or other direct evidence, and without expert opinion linking GE to the contamination at the DVL Site, the circumstantial evidence DVL cites does not provide the Court with a basis for denying GE's Motion for summary judgment.

"Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient 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, 477 U.S. at 322. As the above discussion indicates, DVL has failed to make a showing sufficient to establish an essential element of its CERCLA claim, namely GE's qualifying as a PRP with regard to the DVL Site. Accordingly, GE's Motion for summary judgment is granted as to DVL's cause of action under CERCLA.

b. Niagra Mohawk Defendants

DVL also fails to show any nexus between the Niagra Mohawk Defendants' activities and the DVL Site. The evidence does not suggest any Niagra Mohawk transformers went to the DVL Site; while it does not foreclose that possibility, the only evidence as to the disposal practices of NMPC suggests that most of the waste went to the Wallace Site, and that Wallace is the only identified vendor receiving NMPC's retired transformers from the Eastern Division. Abdullah Aff., Ex. J. While Mr. Millspaugh disputes this claim, see Dkt. No. 53-3 ¶ 12, he does not claim to know whether any retired NMPC transformers went to the DVL Site. Mr. Prevost does not attest to the fact that the transformers he saw on the DVL Site were NMPC transformers; he does not know the source of those transformers nor know of NMPC's practices regarding transformer disposal and handling. Prevost Decl. ¶ 7; Prevost Aff. ¶¶ 4-5. Accordingly, Mr. Prevost's testimony does not link the Niagra Mohawk Defendants to the DVL Site.

Mr. Ludlam's testimony also fails to show a nexus between NMPC and the DVL Site. First, while the Court has considered Mr. Ludlam's statements that Aroclor 1260 was found on the DVL Site, that NMPC transformers employ that Aroclor, and that NMPC is the service provider in the area where the DVL Site is located, his conclusion that NMPC is a responsible party is mere conjecture. Mr. Ludlam has no personal knowledge of NMPC transformers being disposed on the DVL Site; the DEC investigation for which Mr. Ludlam held responsibility did not suggest NMPC was a responsible party, nor did it uncover any debris that was later linked to NMPC. In sum, the Ludlam materials cannot support DVL's CERCLA claim against the Niagra Mohawk Defendants.

Finally, as with GE, the Second Circuit's holding in Niagra Mohawk, 596 F. 3d 112, does not compel this Court to deny the Niagra Mohawk Defendants' Motion. Rather, the Court finds that summary judgment is appropriate because DVL has failed to present evidence suggesting any of the Niagra Mohawk Defendants' qualify as a PRP. Without making out this essential aspect of its CERCLA claim, that claim fails as a matter of law.

2. Indemnification claim

For the reasons expressed above in denying summary judgment in favor of DVL as to its indemnification claim, supra sec. IV.C.2., Defendants are entitled to summary judgment on this claim.

3. Trespass and Nuisance Claims

DVL additionally seeks damages and injunctive relief under the theories of continuing trespass and nuisance claims. Compl. ¶¶ 41-53. Section 214-c of the New York Civil Practice Law and Rules provides, in relevant part,

the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, . . . upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

N.Y. C.P.L.R. 214-c(2).

The New York Court of Appeals has held that, as to claims for damages, section 241-c contains "no continuing-wrong exception to its new comprehensive, across-the-board rules." Jensen v. Gen. Elec. Co., 82 N.Y.2d 77, 88 (1993). Plaintiff became aware of the contamination at least by August 2004. See Carames Decl. ¶¶ 12-13. Yet it did not file its Complaint until October of 2007. Dkt. No. 1. Accordingly, insofar as Plaintiff seeks damages pursuant to its trespass and nuisance claims, those claims are untimely under the three year statute of limitations provided by N.Y. C.P.L.R. § 214-c, and summary judgment in favor of Defendants is warranted. See Bano v. Union Carbide Corp., 361 F.3d 696, 709 (2d Cir. 2004); Niagara Mohawk Power Corp. v. Consol. Rail Corp., 291 F. Supp. 2d 105, 138 (N.D.N.Y. 2003) overruled on other grounds; Incorporated Vill. of Garden City v. Genesco, Inc., No. 07-CV-5244, 2009 WL 3081724, *7 (E.D.N.Y. Sept. 23, 2009). Moreover, even as to the injunctive relief sought, these claims fail as a matter of law because, as explained, DVL cannot establish the culpability of any Defendant for contaminating the DVL Site. The Court, therefore, grants summary judgment to Defendants as to all of DVL's state law claims.

V. CONCLUSION

Based on the foregoing discussion, it is hereby

ORDERED, that Defendant General Electric Company's Cross-Motion to strike (Dkt. No. 52) is GRANTED consistent with this opinion; and it is further

ORDERED, that Plaintiff DVL, Inc.'s Motion for partial summary judgment (Dkt. No. 40) is DENIED; and it is further

ORDERED, that Defendant General Electric Company's Motion for summary judgment (Dkt. No. 38) is GRANTED; and it is further ORDERED, that Defendants National Grid, National Grid USA, National Grid USA Service Company, Inc., Niagara Mohawk Power Corporation's Motion for summary judgment (Dkt. No. 44) is GRANTED; and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties.

IT IS SO ORDERED.

DATED: December 6, 2010

Albany, New York