Emhart Industries, Inc. v. New England Container Company, Inc et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
EMHART INDUSTRIES, INC.,
Plaintiff, Cross-Plaintiff,
Third-Party Plaintiff, and
Counter-Defendant,
v.
NEW ENGLAND CONTAINER
COMPANY, INC., ET AL.,
Defendants, Counter-
Plaintiffs, and
Third-Party Plaintiffs.
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C.A. No. 06-218 WES
EMHART INDUSTRIES, INC.,
Plaintiff, Cross-Plaintiff,
Third-Party Plaintiff, and
Counter-Defendant,
v.
UNITED STATES DEPARTMENT OF THE
AIR FORCE, ET AL.,
Defendants, Counter-
Plaintiffs, Cross-
Plaintiffs, and Third-Party
Plaintiffs,
v.
BLACK & DECKER INC.,
Counter-Plaintiff, Cross-
Plaintiff, Third-Party
Plaintiff, and Third-Party
Defendant,
v.
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C.A. No. 11-023 WES
CONSOLIDATED
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A. HARRISON & CO., INC.; EASTERN
COLOR & CHEMICAL CO.; EASTERN
RESINS CORP.; EVANS PLATING
CORP.; GREYSTONE INC.; HENKEL
CORP.; HEXAGON METROLOGY, INC.;
INDUPLATE INC.; INDUPLATE
OPERATIONS, LLC; IVAX LLC,
Third-Party Defendants,
v.
BNS LLC; CNA HOLDINGS LLC;
CRANSTON PRINT WORKS CO.; DURO
TEXTILES LLC; ELI LILLY & CO.;
EXXON MOBIL CORP.; ORGANIC
DYESTUFFS CORP.; SEQUA CORP.;
TEKNOR APEX CO.; THE ORIGINAL
BRADFORD SOAP WORKS, INC.; UNION
OIL COMPANY OF CALIFORNIA,
Cross-Defendants,
v.
BASF CORP.,
Cross-Defendant and Fourth-
Party Plaintiff,
v.
ROHM AND HAAS COMPANY,
Fourth-Party Defendant.
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MEMORANDUM AND ORDER
Before the Court are “Emhart’s Motion for Reconsideration of
the Court’s Phase IIIA Findings of Fact and Conclusions of Law on
Two Discrete Temporal Issues Relating to Defendants Teknor Apex
Company and Sequa Corporation” (“Emhart Motion”), Dkt. No. 1153,
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and the “Motion of Teknor Apex Company to Reconsider as to Vinyl
Chloride Production” (“Teknor Motion”), Dkt. No. 1154. For the
reasons below, the Court grants the Emhart Motion and denies the
Teknor Motion.
I. BACKGROUND
Relevant here are three aspects of the Court’s Phase IIIA
Findings of Fact and Conclusions of Law (“Opinion”), Dkt. No. 1150.
First, the Court declined to consider Teknor’s liability for
the pre-1968 operations of its predecessor, Thompson Apex Company,
which was formed in 1964. See Op. 164-65. Emhart asks the Court
to reconsider this decision.
Second, the Court declined to consider the prior deposition
testimony of Gennaro Zeoli about Sequa’s predecessor Warwick
Chemical because, pursuant to a pre-trial order, such testimony
was inadmissible as defendant-specific evidence. Id. at 146; see
also Order 3 (Oct. 2, 2024), Dkt. No. 1099 (“TPD Pre-Trial Order”).
Emhart asks the Court to reconsider this decision.
Third, the Court found Teknor liable for the release of vinyl
chloride at Centredale though the reconditioning of drums that it
sent to New England Container Co. (“NECC”). Op. 195. Teknor asks
the Court to reconsider this decision.
II. LEGAL STANDARD
The orders entered pursuant to the Opinion are not immediately
appealable as of right, and final judgment will not enter until
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the allocation phase is adjudicated. See Op. 202. The orders are
therefore interlocutory, and the Court has the “inherent power” to
reconsider them “as justice requires.” Greene v. Union Mut. Life
Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir. 1985). This standard
is consistent with Federal Rule of Civil Procedure 54(b), which
provides that, unless otherwise indicated:
any order or decision . . . that adjudicates fewer than
all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b).
This “interests of justice” standard is more flexible than
the standard that applies to post-judgment motions under Federal
Rule of Civil Procedure 59(e) or 60(b). See Greene, 764 F.2d at
22-23; see also Fed. R. Civ. P. 60(b) advisory committee’s note to
1946 amendment (“[I]nterlocutory judgments are not brought within
the restrictions of the rule, but rather they are left subject to
the complete power of the court rendering them to afford such
relief as justice requires.”).
III. DISCUSSION
A. Emhart Motion
1. Teknor’s Liability for 1964-1968 Period
The Court finds Teknor liable for the 1964-1968 operations of
its predecessor, Thompson Apex Company (“Thompson Apex”), at the
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Pawtucket and Attleboro facilities. Whether Teknor is equitably
liable for the pre-1964 operations of Apex Tire & Rubber Company
(“Apex Tire”) and Thompson Chemical Company (“Thompson Chemical”)
is a matter for the allocation phase.
To begin, a brief corporate history. Apex Tire was founded
by Alfred Fain in 1924 and headquartered at 505 Central Avenue in
Pawtucket, Rhode Island, which is one of two locations collectively
known as “the Pawtucket facility.” Emhart Post-Trial Br. App. 1
(“Teknor Corp. Hist.”), at 1, Dkt. No. 1122-1; Op. 163. Apex Tire
later acquired Thompson Chemical, which was headquartered at 90
Mendon Avenue in Pawtucket, Rhode Island (the other part of the
Pawtucket facility), and had another location at 330 Oakhill Avenue
in Attleboro, Massachusetts (the Attleboro facility). Teknor
Corp. Hist. 1. In a multistep process beginning in 1964,
Continental Oil Company (“Continental”) acquired Apex Tire and
Thompson Chemical; assumed all debts and liabilities of the latter;
and, before liquidating and dissolving the companies, incorporated
a subsidiary: Thompson Apex. Id. Norman Fain, who had since
replaced his father at the helm of Apex Tire and Thompson Chemical,
“remained to run the new company.” EMH4005B-0003; see EMH4005HH-
0002.
In 1967, the Federal Trade Commission ordered Continental to
divest itself of all the “plants, machinery, equipment, patents,
patent rights, know-how and technology, trade names, trademarks,
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customer lists and good will acquired” from Apex Tire and Thompson
Chemical. Teknor Corp. Hist. 3. Continental thus transferred
certain assets, including the Pawtucket and Attleboro facilities,
to Thompson Apex, and sold that company to Elmgrove Corporation,
which belonged to the Fains, who previously owned and operated the
facilities as Apex Tire and Thompson Chemical. Id.; see also
EMH4005-0003 (noting that “Norman Fain bought the . . . facilities
back from Continental”). Thompson Apex then changed its name to
Teknor Apex before merging with Elmgrove Corporation. Teknor Corp.
Hist. 3; see also Teknor Post-Trial Br. 8; Feb. 11 Trial Tr. 32:18,
Dkt. No. 1148 (acknowledging “Thompson Apex became Teknor Apex”).
In its Opinion, the Court wrote that “Teknor [did] not advance
a position as to its liability for Thompson Apex’s operations in
its Post-Trial Brief.” Op. 164. Instead, regarding the issue of
successor liability, Teknor devoted all its energy to arguing that
it was not liable for the pre-1964 operations of Thompson Chemical.
See Teknor Post-Trial Br. 10; see also Feb. 11 Trial Tr. 32:3-21.
Upon review, the Court finds that this was not merely an omission
on Teknor’s part, but a concession. That is, because “Thompson
Apex became Teknor Apex,” Feb. 11 Trial Tr. 32:18, Teknor in effect
conceded that it was responsible for any liabilities arising from
the 1964-1968 operations of Thompson Apex at the Pawtucket and
Attleboro facilities. As briefly detailed below, this concession
was correct as a matter of law; therefore, the Court erred when it
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found that Emhart “fail[ed] to make an adequate successor liability
argument” for the 1964-1968 period. Op. 165.
On matters of successor liability in the CERCLA context, the
First Circuit applies state law “so long as it is not hostile to
the federal interests animating CERCLA.” United States v. Davis,
261 F.3d 1, 54 (1st Cir. 2001) (quoting John S. Boyd Co. v. Bos.
Gas Co., 992 F.2d 401, 406 (1st Cir. 1993)). Rhode Island law on
the effect of corporate merger provides that a “surviving or new
corporation is . . . liable for all the liabilities and obligations
of each of the corporations merged or consolidated.” R.I. Gen.
Laws § 7-1.2-1005(5). In this case, Elmgrove Corporation merged
with Thompson Apex, which was renamed Teknor Apex after Elmgrove
Corporation bought it from Continental. The surviving entity —
Teknor Apex — therefore assumed the liabilities of Thompson Apex
arising from that company’s 1964-1968 operations at the Pawtucket
and Attleboro facilities. Whether Teknor should also be liable
for the pre-1964 operations of Apex Tire and Thompson Chemical at
those facilities is a closer question. As Emhart notes, Thompson
Chemical, Thompson Apex, and Teknor Apex conducted “the exact same
operations at the exact same facilities, making and selling the
same products under the same brand names and logos,” all while
“under the same direction and control,” i.e., the Fains. Teknor
Corp. Hist. 4-5. But Continental assumed the debts and liabilities
of Thompson Chemical when it acquired, liquidated, and dissolved
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that company in 1964, which complicates the analysis. The parties
may address that issue during the allocation phase. For now, it
is clear enough that Teknor is liable under CERCLA for the 1964-
1968 operations of Thompson Apex at both facilities. The parties
may address the implications of this finding during allocation.
2. Zeoli’s Prior Deposition Testimony
The Court finds the prior deposition testimony of Gennaro
Zeoli admissible as evidence that Sequa’s predecessor, Warwick
Chemical (also known as Sun Chemical Corporation), sent drums to
NECC in the mid-1950s from its plant in Wood River Junction, Rhode
Island. Zeoli played multiple roles at NECC between 1953 and 1956,
including truck driver. Zeoli Dep. 12:1-15. At a deposition on
November 8, 2002, Zeoli testified that when he worked for NECC, he
picked up drums from “Sun Chemical in Carolina.” Id. at 32:5-7,
60:3-6. He almost certainly meant the Wood River Junction plant.
As mentioned in the Opinion, Carolina and Wood River Junction are
neighboring villages. Op. 146. And the plant was located on a
stretch of Route 91 known as the “Alton Carolina Road.”1
Zeoli’s deposition was taken in a different case, and he died
before Phase III of this case began. Emhart’s Opp’n TPD’s Mot.
Lim. 6, Dkt. No. 1094. Before trial, TPDs moved to exclude almost
all statements obtained before Phase III, including Zeoli’s prior
1 See R.I. Dep’t of Transp., Rhode Island Highway Map (2020),
https://www.dot.ri.gov/documents/maps/RI_Highway_Map.pdf.
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deposition testimony, because TPDs were not parties to the earlier
proceedings and their interests were not represented when the
statements were obtained. TPD’s Mot. Lim. 2-6, Dkt. No. 1081; see
also id. at 1 n.2 (regarding stipulation to admit certain prior
testimony). In response, Emhart argued that any former testimony
was admissible under Rule 804(b)(1), and that all or most of the
statements at issue were admissible under Rule 106, known as the
rule of completeness, or Rule 807, known as the residual exception.
Emhart’s Opp’n TPD’s Mot. Lim. 21-27. However, Emhart’s arguments
were short on specifics, and when discussing evidence from earlier
proceedings about Sequa’s predecessors, Emhart failed to mention
Zeoli’s statement that he picked up drums from Sun Chemical. See
id. at 25-27; id. at 17-18.
The Court found the prior deposition testimony of Zeoli and
other unavailable witnesses admissible as contextual evidence but
not as defendant-specific evidence. TPD Pre-Trial Order 2-4. The
parties could thus rely on this testimony for evidence pertaining
to NECC’s general operations but not for evidence pertaining to
the actions of TPDs or their predecessors. Id. The Court did not
explicitly consider the admissibility of the prior testimony under
Rule 106 or 807, analyzing it only under Rule 804(b)(1), but it
found that Emhart had not met the requirements of Rule 807 with
respect to other statements because it did “not specify how each
piece of evidence [was] sufficiently probative.” Id. at 4-5.
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Seeing as Emhart had not even mentioned Zeoli’s statement about
picking up drums from Sun Chemical in South Carolina, it follows
that Emhart had not met the requirements of Rule 807 with respect
to this statement, either.
Emhart ultimately alerted the Court to Zeoli’s statement at
trial and in its post-trial brief, arguing that it was evidence
Warwick Chemical sent drums to NECC in the mid-1950s. See, e.g.,
Emhart Post-Trial Br. 114, Dkt. No. 1122. Emhart did not, however,
argue that the statement should be admitted under Rule 807. See
Reply Supp. Emhart Mot. 21, Dkt. No. 1156 (“Emhart acknowledges
that the Rule 807 arguments advanced in its motion for
reconsideration are ‘new.’”). Instead, Emhart contended only that
Zeoli’s statement should be admitted under Rule 106 to lend context
to ambiguous, if not contradictory statements from another
witness, Vincent Buonanno, about Warwick Chemical’s relationship
with NECC. Emhart Post-Trial Br. 114 n.45.
Sequa argued that Zeoli’s statement about picking up drums in
“Carolina” made no sense, presumably because it thought Zeoli was
referring to the state of South Carolina, where Warwick Chemical
had two facilities. Sequa Post-Trial Br. 2, 4, Dkt. No. 1119.
Sequa also could have noted that the Court, in a pre-trial order,
had already found Zeoli’s prior deposition testimony inadmissible
for Emhart’s intended purpose, but it failed to mention that. See
id. at 3.
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In its Opinion, the Court did not entertain Emhart’s Rule 106
argument, in part because Emhart’s expansive reading of that rule
would create an exception to the rule against hearsay large enough
to render all other exceptions meaningless. The purpose of Rule
106 is to let a party correct a misimpression created by an adverse
party’s introduction of a partial statement. It reads:
If a party introduces all or part of a statement, an
adverse party may require the introduction, at that
time, of any other part — or any other statement — that
in fairness ought to be considered at the same time.
The adverse party may do so over a hearsay objection.
Fed. R. Evid. 106. The Supreme Court has interpreted this rule to
mean “that when one party has made use of a portion of a document,
such that misunderstanding or distortion can be averted only
through presentation of another portion, the material required for
completeness is ipso facto relevant and therefore admissible under
Rules 401 and 402.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
172 (1988). Emhart, in contrast, pounced at the words “any other
statement” to argue Rule 106 permits the introduction of otherwise
inadmissible statements that contradict an adverse party’s version
of the facts derived from other, unrelated statements — made by a
different speaker in a different proceeding — that already exist
in evidence. Emhart Post-Trial Br. 114 n.45; see also Emhart Mot.
12-13. The unrelated statements at issue here come from the prior
testimony of Vincent Buonanno, which is in evidence based on a
pre-trial stipulation. See Stip., Dkt. No. 1112. Emhart argued
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at trial that the balance of Buonanno’s testimony suggests Warwick
Chemical sent drums to NECC in the mid-1950s. Emhart Post-Trial
Br. 114. Citing the same testimony, Sequa contended that Warwick
Chemical more likely did not send drums to NECC until the 1960s.
Sequa Post-Trial Br. 4-5. According to Emhart, Sequa’s
interpretation of Buonanno’s testimony created a misimpression of
the facts, and one that should be corrected by the introduction of
Zeoli’s statement under Rule 106. Emhart Post-Trial Br. 114 n.45.
The same argument appears in Emhart’s motion to reconsider. See
Emhart Mot. 13.
Emhart’s interpretation of Rule 106 does violence to the rule,
which is principally designed to prevent parties from benefitting
from “the misleading impression created by taking matters out of
context.” Fed. R. Evid. 106 advisory committee’s note. That is
not what happened here. Rather, the parties agreed to the
introduction of Buonanno’s prior testimony and, unsurprisingly,
the parties had conflicting interpretations of his statements.
Just because Sequa argues that Buonanno’s statements do not support
Emhart’s version of the facts does not mean that Emhart should be
able to introduce another statement — one the Court has already
found inadmissible, made by a different speaker, in a different
proceeding — simply because it would bolster Emhart’s position.
See Fed. R. Evid. 106 advisory committee’s note to 2011 amendment
(“The mere fact that a statement is probative and contradicts a
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statement offered by the opponent is not enough to justify
completion under Rule 106.”). To find otherwise would mean that
any out-of-court statement that contradicts another statement in
evidence should be admitted over a hearsay objection. This would
all but eradicate the rule against hearsay.
Considering the above, the Court did not err when it refused
to entertain Emhart’s Rule 106 argument. But those are not the
only purported grounds for error. Emhart also contends that, even
though it did not argue that Zeoli’s statement should be admitted
under Rule 807 until after the Court issued its Opinion, the Court
erred by not admitting the statement under Rule 807. See Emhart
Mot. 11-12, 17. Needless to say, the Court does not think that
failing to consider an argument for admission that Emhart did not
even make was error. But now that Emhart has made the argument,
the Court finds that justice requires a reconsideration of its
decision to exclude Zeoli’s statement.
Rule 807 provides that an otherwise inadmissible hearsay
statement is not excluded if —
(1) the statement is supported by sufficient guarantees
of trustworthiness — after considering the totality of
circumstances under which it was made and evidence, if
any, corroborating the statement; and
(2) it is more probative on the point for which it is
offered than any other evidence that the proponent can
obtain through reasonable efforts.
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Fed. R. Evid. 807(a).2 Zeoli’s statement that he picked up drums
from “Sun Chemical in Carolina” when he worked for NECC satisfies
both requirements. First, the statement has sufficient guarantees
of trustworthiness because it was made in a deposition and there
is corroborating evidence. Along with Sun Chemical in Carolina,
Zeoli remembered that he picked up drums from Crown Chemical, which
was in fact a supplier of NECC. Zeoli Dep. 60:3-6; see, e.g.,
EMH1005-0026. Zeoli also gave an accurate location for the Wood
River Junction plant. Not only that, but his use of the term
“Carolina” — which, as evidenced by Sequa’s apparent confusion, is
a place name someone unfamiliar with local roads and history is
unlikely to know — suggests Zeoli was indeed speaking from memory.
Finally, as Emhart discusses at length in its motion to reconsider,
the assertion that Warwick Chemical sent drums to NECC in the 1950s
can be reconciled (though it takes some effort) with Buonanno’s
testimony about NECC’s relationship with Warwick Chemical and
other evidence about NECC’s operations. See Emhart Mot. 17-25.
Second, Zeoli’s statement is more probative on the point for
which it is offered, i.e., whether Warwick Chemical sent drums to
NECC in the 1950s, than any other evidence that Emhart could have
2 The rule also requires the proponent to give the adverse
party “reasonable notice of the intent to offer the statement,”
and that said “notice must be provided in writing before the trial
or hearing” absent good cause. Fed. R. Evid. 807(b). Emhart gave
TPDs written notice of its intent to offer Zeoli’s prior deposition
testimony before trial. See TPD’s Mot. Lim. 2.
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obtained through reasonable efforts. The only other evidence on
this point comes from Buonanno, but he “only worked for NECC for
a few summers in the early 1960s and then in sales in the late
1960s.” Emhart Post-Trial Br. 194. But see Emhart Mot. 18 (citing
Buonanno’s testimony from another deposition to argue that “he
only worked for NECC for a few summers in the late 1950s and early
1960s as a laborer” before returning in the late 1960s). In
contrast, not only did Zeoli work at NECC between 1953 and 1956
but also, during that time, he was NECC’s “only driver.” See Zeoli
Dep. 30:24-31:1. It is therefore reasonable to assume that Emhart
could have obtained evidence from no one else, and certainly no
one still available once Phase III began, who could more reliably
state from personal experience whether Warwick Chemical sent drums
to NECC in the 1950s.
The Court thus finds Zeoli’s statement admissible under Rule
807 and, given that evidence, it also finds that Warwick Chemical
sent drums to NECC as early as 1953. The Court sees no reason to
assume there was a break in the parties’ relationship between the
mid-1950s and 1971, and it doubts there is evidence to find that
there was, but the Court reserves that issue and other implications
of its finding to the allocation phase.
B. Teknor Motion
Teknor argues that it should not be liable for the release of
vinyl chloride because, after 1964, its vinyl chloride production
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shifted from the Attleboro facility to a different facility that
is not at issue here. Teknor Mot. 12-14. But just because Teknor
stopped making vinyl chloride at the Attleboro facility does not
mean that it stopped using vinyl chloride, whether at that facility
or the Pawtucket facility, which is also at issue here.3 Emhart’s
expert Dr. Charles Daniels testified that vinyl chloride was used
to make polyvinyl chloride (“PVC”), Oct. 21 Trial Tr. 25:11-16,
Dkt. No. 1137, and Teknor has acknowledged that PVC compounding
occurred at the Pawtucket facility throughout the 1960s and beyond,
TPD 607 at EPA010350; see also Nov. 15 Trial Tr. 24:4-7, Dkt. No.
3 Teknor conflates separate lines of deposition testimony from
Robert Duarte, a former employee, regarding the “manufacture” and
“use” of vinyl chloride. See Teknor Mot. 13-14. Duarte testified
that the “production” or “manufacture” of vinyl chloride at the
Attleboro facility ceased after 1964. Duarte Dep. 46:9-47:10. He
was later asked whether certain materials “were ever used in any
of the manufacturing processes that [he] knew of at Teknor Apex
while [he] worked there.” Id. at 140:24-141:4. When asked about
vinyl chloride, he gave a one-word answer: “Yes.” Id. at 145:14-
15. Duarte gave the same answer for over a dozen other materials,
including toluene, naphthalene, and zinc compounds. See generally
id. at 140:24-151:21. Teknor states that when Duarte was “asked
to list materials that ‘were ever used,’ he answered in the
affirmative for vinyl chloride but vinyl chloride production was
ended in 1964.” Teknor Mot. 13. But “use” and “production” are
different things, and just because Teknor stopped producing its
own vinyl chloride in Attleboro does not mean that it stopped using
vinyl chloride altogether, whether there or in Pawtucket. If, as
Teknor suggests, use and production run together, one can read
Duarte’s testimony to mean that Teknor produced its own toluene,
naphthalene, and zinc compounds, not to mention the several other
materials that he said Teknor used during his time there. Surely
Teknor would not concede to that.
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1147 (Teknor’s expert Lawrence McTiernan noting that Teknor made
PVC compounds).
Furthermore, Teknor does not dispute that it contributed to
the release of trichloroethene (“TCE”) at Centredale; nor does it
dispute that TCE degrades into vinyl chloride. Teknor Mot. 12-
14; see Op. 72, 92 (noting that perchloroethylene (“PCE”) degrades
into TCE, which degrades into vinyl chloride); 162 (finding Warwick
Chemical’s disposal of PCE at Centredale likely caused the release
of TCE and vinyl chloride); 195 (finding Teknor disposed of TCE at
Centredale). Teknor’s undisputed contribution to the release of
TCE at Centredale is therefore an alternative basis of liability
for the release of vinyl chloride.
Accordingly, the Court will not reconsider its finding that
Teknor contributed to the release of vinyl chloride at Centredale.
IV. CONCLUSION
For the reasons above, the Emhart Motion, Dkt. No. 1153, is
GRANTED; and the Teknor Motion, Dkt. No. 1154, is DENIED.
IT IS SO ORDERED.
William E. Smith
Senior District Judge
Date: January 15, 2026
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