Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01263-PSF-MEH ROBERT M. FRIEDLAND, Plaintiff, v. TIC ­ THE INDUSTRIAL COMPANY; GEOSYNTEC CONSULTANTS INC. f/k/a GEOSERVICES, INC. Defendants.

DEFENDANTS' PROPOSED FINAL PRETRIAL ORDER

INTRODUCTION The Defendants are filing a separate Proposed Final Pretrial Order ("FPTO") because Plaintiff refused to sign off on a FPTO that contained a section entitled "Defendants' Statement of Special Issues." The primary difference between the two FPTOs is the statement of special issues that Defendants felt compelled to make, in order to identify matters that Defendants concluded were "special" and should be brought to the Court's attention. The Defendants' version also differs from Plaintiff's in that it accurately represents that discovery has not been completed in this case. Defendants made clear that this "special issues" section was expressly limited to Defendants' statement, and that Plaintiffs would not be bound by it. Despite this discussion, Plaintiff insisted on filing his own FPTO. Defendants regret the filing of a separate FPTO, but they had no alternative given Plaintiff's position.

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1.

DATE AND APPEARANCES

The Final Pretrial Conference in this matter was conducted on March 22, 2007. Appearing for plaintiff Robert Friedland were R. Kirk Mueller, Kristina I. Mattson and Perry L. Glantz of the law firm Fognani & Faught, PLLC. Appearing for defendant TIC ­ The Industrial Company ("TIC") were Colin C. Deihl and Delmar R. Ehrich of the law firm of Faegre & Benson LLP. Appearing for defendant GeoSyntec Consultants, Inc. f/k/a Geoservices, Inc. ("GeoSyntec") were Terence M. Ridley and Marian L. Carlson of the law firm of Wheeler Trigg Kennedy LLP. 2. JURISDICTION

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 9613(b). 3. CLAIMS AND DEFENSES Plaintiff Robert Friedland Robert Friedland contends TIC managed, controlled and/or conducted earthwork and other operations at the Summitville Mine that resulted in the release or potential release of hazardous substances, including acid rock drainage, at or from the Summitville Mine. Moreover, Robert Friedland contends TIC managed, controlled and/or conducted operations that contributed to the ultimate failure of the heap leach pad liner system by negligently and improperly placing fill beneath the concrete foundation of Well Can Number 1 and improperly constructing the concrete foundation in that location. Robert Friedland contends GeoSyntec managed, controlled and/or conducted quality assurance work for the installation and repair of the synthetic geomembrane liner in the heap leach

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pad at the Summitville Mine. GeoSyntec contributed to the ultimate failure of the heap leach pad that resulted in the release or potential release of hazardous substances at or from the Summitville Mine by failing to properly oversee and control the liner installation and repair process. Robert Friedland brings this action against TIC and GeoSyntec for cost recovery and contribution with respect to costs he incurred responding to releases or threatened releases of hazardous substances at or from the Summitville Mine, and for costs he incurred pursuant to a Consent Decree approved by the United Stated District Court for the District of Colorado. Robert Friedland contends TIC and GeoSyntec are liable to him in contribution as operators and/or arrangers under CERCLA. Under section 113 of CERCLA, 42 U.S.C. § 9613, Robert Friedland is entitled to contribution from both TIC and GeoSyntec for any costs, damages, injuries or expenses arising from or caused by the cost recovery action initiated against him by the United States of America and the State of Colorado. This includes without limitation Robert Friedland's cost of settlement incurred pursuant to the Consent Decree. Robert Friedland denies any personal liability under CERCLA related to the Summitville Mine. Accordingly, it would be inappropriate to allocate any costs to Robert Friedland in the contribution analysis in this action. Defendant TIC ­ The Industrial Company TIC denies all of Plaintiff's allegations against it. Plaintiff's claims against TIC fail for a number of reasons. First, TIC cannot be held liable as an operator or arranger under CERCLA. TIC was subcontractor to SCMCI and Bechtel Civil & Minerals, Inc. ("Bechtel"). It was contractually required to follow Bechtel's direction. As a result, Bechtel and SCMCI directed, controlled and supervised all of TIC's work. Given Bechtel's and SCMCI's control, TIC could 3

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not and did not: 1) direct, manage, or conduct Mine operations, operations specifically related to pollution, or decisions about compliance with environmental regulations; 2) own, possess, dispose, or intend to dispose of cyanide or any hazardous substance released or threatened to be released from the heap leach pad; 3) own, possess, dispose, or intend to dispose of any earthen materials allegedly resulting in the release or threatened release of hazardous substances in the form of acid rock drainage ("ARD"); 4) arrange for the disposal of or participate in any decision to dispose of cyanide or any hazardous substance released or threatened to be released from the heap leach pad; or 5) arrange for the disposal of or participate in any decision to dispose of any earthen materials allegedly resulting in the release or threatened release of hazardous substances in the form of ARD. As a result, TIC cannot be held liable as an operator or arranger under CERCLA. Second, Plaintiff has received a windfall recovery through prior CERCLA litigation. Plaintiff has already received approximately $4,500,000 more than he paid to the government as part of the consent decree that forms the basis for his lawsuit against TIC and there remains a question whether the initial $20,000,000 payment truly came from Friedland's personal assets. Since he has recovered the entire amount that he paid to the government for CERCLA response costs, he has no damages and no right to contribution as a matter of law under CERCLA § 113(f). Third, Plaintiff's payment to the government under the Consent Decree is less than his "fair share" of the response costs incurred at the Site. Friedland, as Plaintiff, must prove that he has paid more than his fair share of the response costs for the Mine, a burden that he cannot possibly meet as the record demonstrates the vast extent of his authority and control at the

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Summitville Mine. Since Plaintiff paid less than his "fair share," he has no damages and no right to contribution. Fourth, the response costs paid by Plaintiff were for activities inconsistent with the National Contingency Plan ("NCP"). Plaintiff will be unable to meet his burden of demonstrating that his payment to the government was consistent with the NCP. Plaintiff's claims must fail for all of the aforementioned reasons as well as for all of the reasons set forth in TIC's Amended Answer with Affirmative Defenses. Defendant GeoSyntec Consultants, Inc. Plaintiff has the burden to prove that GeoSyntec was an "arranger" or an "operator" under CERCLA in order to be entitled to any recovery in this action. GeoSyntec denies that it either controlled or had authority to control any construction or operational activities at the Summitville site that would satisfy the legal requirements necessary to be deemed an "operator" or "arranger" under CERCLA. Indeed, GeoSyntec denies that it contributed to a failure of the HLP liner system in any respect. GeoSyntec further asserts that Plaintiff's claims are barred under the equitable doctrines of laches and unclean hands; that Plaintiff's claims are barred by the doctrines of res judicata and/or collateral estoppel, as he failed to bring his claims against GeoSyntec when GeoSyntec was joined in the underlying Cost Recovery Action, before GeoSyntec obtained judgment in its favor; and that Plaintiff's claims are barred by his own illegal conduct. GeoSyntec further asserts that Plaintiff cannot recover contribution in this case because he has already recovered more than the $20.7 million paid to resolve the Cost Recovery Action from other parties involved with the Summitville site. Plaintiff has recovered over $25 million from other parties, and has lawsuits and claims pending through which he seeks at least another $20 5

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million from various insurance companies, for the same cleanup costs. GeoSyntec also asserts that Plaintiff cannot offset defense costs from his prior recoveries because he did not pay the defense costs. GeoSyntec further asserts that Plaintiff has the burden to prove that he paid more than his fair share under CERCLA in order to recover any sum whatsoever in this CERCLA contribution action. GeoSyntec denies that Plaintiff has paid more than his fair share and therefore asserts, on this ground also, that Plaintiff has no recoverable damages in this CERCLA contribution action. Given his control over the site, Plaintiff should have paid substantially more than $20.7 million in cleanup costs. GeoSyntec further asserts that even absent these several barriers to Plaintiff's contribution rights, even if GeoSyntec were somehow held to have the CERCLA status of an "operator" or "arranger," the Court would then have to consider all relevant equitable factors to determine what, if any, contribution should be awarded against GeoSyntec. It is submitted that all equitable factors dictate that GeoSyntec be allocated little or no responsibility for the cleanup costs, because even if Plaintiff's allegations were true, its role at the site was minimal compared to the roles of other parties such as Friedland, SCMCI, Bechtel Corporation, and Industrial Constructors Corp. Among other things, there is no causal relationship between the activities of GeoSyntec, i.e., providing quality assurance services with respect to the geomembrane liner, and any cleanup costs incurred with respect to the Summitville site. Leakage through the liner did not cause the EPA or State of Colorado to incur any cleanup costs. Rather, the cleanup costs expended with regard to the heap leach pad were for detoxification and reclamation of the pad (which

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Friedland's company had essentially turned into a "pond"), which costs would have been incurred in any event upon the termination of leaching activities by SCMCI. GeoSyntec also submits, with respect to damages, that all relevant equitable factors require the assignment of "orphan" shares in this case to Plaintiff, who had control over, among other things, what entities and contractors were engaged to provide services at the Summitville Mine. GeoSyntec was at the bottom of the contractual chain. Companies above it, such as Klohn Leonoff, ICC, and others, who had extensive roles at the project, are claimed by Plaintiff to be "orphans" whose shares should be assigned to GeoSyntec. Equity simply demands that these shares be assigned to the party who controlled and determined their selection and their actions, rather than on a party who had no control whatsoever over them. 4. 1. STIPULATIONS

The Summitville Mine site (hereinafter the "Site") is located about 25 miles south

of Del Norte, Colorado, in Rio Grande County. It is located within the San Juan Mountain Range of the Rocky Mountains, approximately two miles east of the Continental Divide. 2. 3. Mining activity began at the Site as early as 1870. From that time through the early 1970's, the Site was the subject of sporadic

underground mining activities. Mining was performed in several adits, or shafts, including the Reynolds Adit, the Chandler Adit and the Iowa Adit. 4. 1979. 5. 1990. 7 Robert Friedland was a director of GRL from March 23, 1981 through November 2, Robert Friedland was a founder of Galactic Resources, Ltd. (hereinafter "GRL") in

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6.

Robert Friedland was President of GRL from June 12, 1981 through June 15, 1984

and then again from June 18, 1987 through February 21, 1990. 7. Robert Friedland was Chairman of the Board and Chief Executive Officer of GRL

from June 15, 1984 through June 8, 1990, and was Vice Chairman of the Board from June 8, 1990 through November 2, 1990. 8. Galactic Resources Inc. (hereinafter "GRI") was incorporated as a wholly owned

subsidiary of GRL. 9. Robert Friedland was a director and President of GRI from June 3, 1986 through

January 12, 1987. 10. A company named Summitville Consolidated Mining Company (hereinafter

"SCMCI") was originally incorporated as a wholly owned subsidiary of GRI. 11. Robert Friedland was a director and President of SCMCI from April 26, 1984

through January 12, 1987. 12. TIC ­ The Industrial Company (hereinafter "TIC") is a Delaware corporation,

authorized to do business in Colorado, with its principal place of business in Steamboat Springs, Colorado. 13. 14. TIC was founded in 1974 in Steamboat Springs, Colorado. TIC formally ended its involvement at the Site with the execution of a Final

Release and Lien Waiver on April 9, 1986. 15. GeoSyntec Consultants, Inc., f/k/a GeoServices, Inc. was formed in 1983 as an

engineering consulting firm and had expertise regarding geomembrane liners.

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16.

GeoSyntec entered into an agreement with Klohn-Leonhoff dated September 23,

1985 to provide quality assurance work for the synthetic liner at the Summitville heap leach project. 17. GeoSyntec subsequently entered into a similar agreement with SCMCI dated

June 1, 1987 for similar services. 18. On December 15, 1994 EPA issued Interim Records of Decision for the heap leach

pad, the Cropsy Waste pile, Beaver Mud dump the Summitville Dam Impoundment, the mine pits, water treatment and site reclamation. 19. On or about May 25, 1996 the United States of America and the State of Colorado

filed suit against Robert Friedland pursuant to sections 107 and 113(g) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ultimately styled United States of America and State of Colorado v. Robert M. Friedland, et al., Civil Action No. 1213 (D. Colo. filed May 23, 1996). 20. 21. This action arises under Section 113 of CERCLA, 42 U.S.C. § 9613. On June 13, 2001 the United States District Court of the District of Colorado

approved a Settlement Agreement and Consent Decree resolving all claims against Robert Friedland. 22. Each party to this action is a "person," as defined by Section 101(21) of CERCLA,

42 U.S.C.§ 9601(21).

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5.

PENDING MOTIONS Plaintiff's Motions

1.

"Robert M. Friedland's Motion to Supplement the Record Regarding TIC ­ The

Industrial Company's Motion for Summary Judgment," October 27, 2006 [#149]; Defendants' Joint Opposition, November 29, 2006 [#177 ]; Plaintiff's Combined Reply Brief in Support of Motions to Supplement Record and Motions for Summary Judgment, December 14, 2006 [#188]. 2. "Robert M. Friedland's Motion to Supplement the Record Regarding GeoSyntec

Consultants Inc's Motion for Summary Judgment," October 27, 2006 [#148]; Defendants' Joint Opposition, November 29, 2006 [#177]; Plaintiff's Combined Reply Brief in Support of Motions to Supplement Record and Motions for Summary Judgment, December 14, 2006 [#188]. 3. "Plaintiff Robert Friedland's Motion for Summary Judgment Regarding Plaintiff's

CERCLA Liability," October 30, 2006 [#150]; Defendants' Memorandum of Law in Opposition, November 29, 2006 [#178]; Plaintiff's Reply in Support of Motion, January 2, 2007 [#195]. 4. "Robert M. Friedland's Motion for Partial Summary Judgment that Mr.

Friedland's CERCLA Response Costs for Government Directed Remediation Were Consistent With the National Contingency Plan," October 30, 2006 [#152]; Defendants' Joint Response in Opposition, November 29, 2006 [#179]; Plaintiff's Reply in Support of Motion, December 18, 2006 [#192]. Defendant TIC- The Industrial Company's Motions 1. Defendant TIC ­ The Industrial Company's Motion for Summary Judgment [#62]

02/08/06; Response filed 03/31/06 [#97]; Reply filed 05/03/06 [#114]

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2.

Defendant TIC ­ The Industrial Company's Motion to Remove Confidential

Designation from Travelers and USF&G Settlement Agreements [#200] 01/03/07 Defendant GeoSyntec's Motions 11/18/05 12/22/05 01/10/06 01/18/06 02/22/06 02/22/06 GeoSyntec GeoSyntec Friedland GeoSyntec GeoSyntec GeoSyntec Defendant GeoSyntec's Motion for Summary Judgment [41] Motion to Supplement Defendant GeoSyntec's Motion for Summary Judgment [44] Plaintiff's Response in Opposition to Defendant GeoSyntec's Motion for Summary Judgment [50] GeoSyntec's Unopposed Motion for Extension of Time to File Reply In Support of Motion for Summary Judgment [51] Defendant GeoSyntec's Reply to Plaintiff's Response in Opposition to Motion for Summary Judgment [75] GeoSyntec's Motion to Strike Certain Exhibits to Plaintiff's Response in Opposition to Motion for Summary Judgment [76] Plaintiff's Response to GeoSyntec's Motion to Strike Certain Exhibits to Plaintiff's Response to Motion for Summary Judgment [92] Defendant GeoSyntec's Reply to Plaintiff's Response to Motion to Strike Exhibits [101] Defendant GeoSyntec's Motion to Bifurcate Proceedings [52] Plaintiff's Response to Defendant GeoSyntec's Motion to Bifurcate Proceedings [74] Defendant GeoSyntec's Reply to Plaintiff's Response to Motion to Bifurcate Proceedings [85] Order on Motion for Modification of Scheduling Order and Related Relief [131] (requiring modified submission of motion) Defendants' Joint Motions 10/30/06 10/30/06 10/30/06 12/08/06 TIC, GeoSyntec TIC, GeoSyntec GeoSyntec Friedland Defendants' Joint Motion for Summary Judgment on Damages [153] Defendants' Joint Motion to File Brief in Support of Motion for Summary Judgment Under Seal [154] Defendants' Brief in Support of Joint Motion for Summary Judgment on Damages (Filed Under Seal) [155] Plaintiff's Brief in Opposition to Defendants' Joint Motion for Summary Judgment on Damages (Filed Under Seal) [185]

03/24/06

Friedland

04/10/06

GeoSyntec

01/20/06 02/17/06 03/06/06 6/26/06

GeoSyntec Friedland GeoSyntec Court

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01/05/07

TIC, GeoSyntec TIC, GeoSyntec Friedland

Defendants' Reply in Support of Motion for Summary Judgment on Damages (Filed Under Seal) [202] Defendants' Joint Motion to Strike Plaintiff's Designation of Rebuttal Expert Witnesses and To Preclude Designation of Further Experts [227] Plaintiff's Response in Opposition to Defendants' Motion to Strike Plaintiff's Designation of Rebuttal Expert Witnesses and To Preclude Designation of Further Experts [250] Defendants' Joint Reply in Support of Motion to Strike Plaintiff's Designation of Rebuttal Expert Witnesses and to Preclude Designation of Further Experts [262] 6. WITNESSES

02/05/07

02/26/07

03/13/07

TIC, GeoSyntec

a.

List the nonexpert witnesses to be called by each party. List separately: (1) (2) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); witnesses who may be present at trial if the need arises (see Fed. R. Civ. P. 26(a)(3)(A)); and (3) witnesses where testimony is expected to be presented by means of a deposition. See Fed. R. Civ. P. 26(a)(3)(B).

b.

List the expert witnesses to be called by each party. List separately: (1) (2) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and (3) witnesses where testimony is expected to be presented by means of a deposition. See Fed. R. Civ. P. 26(a)(3)(B).

Witness lists for each party are attached.

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7. (1)

EXHIBITS

The parties' respective exhibit lists are attached.

"Final exhibit lists and copies of listed exhibits must be provided to opposing counsel and any pro se party no later than 30 days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 20 days after the exhibits are provided. Demonstrative Exhibits shall be disclosed and exchanged by the parties 10 days prior to trial." 8. DISCOVERY

Discovery has not been completed, as described more fully in the "Special Issues" section below. 9. A. SPECIAL ISSUES

Newly Produced Documents Pursuant to Court Orders. In orders granting

separate motions to compel discovery filed by TIC and GeoSyntec, the Court ordered Plaintiff to produce specified documents and interrogatory responses to each Defendant by March 19, 2007. Plaintiff's counsel produced a three-inch stack of documents related to TIC's discovery requests on the morning of March 20, 2007, but stated that they are producing no further documents in response to GeoSyntec's discovery requests. Defendant TIC requires additional time to review the documents produced and determine their completeness before finalizing its exhibit list. GeoSyntec intends to file a motion to compel and/or for sanctions for Plaintiff's failure to produce documents pursuant to the Court's order on its motion to compel, which may result in Plaintiff's production of additional documents at a later date. Accordingly, the exhibit list submitted herewith is not "final" with respect to Defendants' exhibits.

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B.

Incomplete Responses Pursuant to Court Orders. Late in the day on March 19,

Plaintiff served supplemental responses to certain discovery requests addressed in the Court's orders granting Defendants' respective motions to compel. As to both Defendants' discovery requests, Plaintiff failed to provide complete responses, and failed to verify the responses as required by Rule 33, Fed. R. Civ. P., as he inserted numerous qualifications into his verification statements. Defendants intend to file a motion to compel and for sanctions based on Plaintiff's failure to provide complete responses as ordered, and his failure to give the responses "under oath" as required by Rule 33. C. Lack of Timely Response to Requests for Stipulations. Beginning in September

2006, GeoSyntec made several requests that Plaintiff stipulate to the authenticity and admissibility of certain documents, so that defense counsel could determine the necessity of deposing witnesses for the purpose of authenticating the documents. Plaintiff did not respond to these requests until March 19, 2007, when he stated objections in the "remarks" section of the draft exhibit list to certain of these documents, including hearsay and lack of authentication ­ the very problem Defendants sought to avoid months ago by confirming Plaintiff's position well in advance of the pretrial conference. In light of Plaintiff's untimely objections, Defendants will seek leave to take depositions of Bechtel and/or government witnesses to authenticate the documents to which Plaintiff has declined to stipulate, and to establish their status as business records.

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D.

Supplementation of Pending Motions and Responses. In light of recent discovery,

including the deposition of Charles Russell on March 12 and 13, 2007 in England and Plaintiff's production of new documents since late January 2007, Defendants will seek leave to supplement some or all of their pending motions for summary judgment, and their responses to Plaintiff's motions for summary judgment, with newly-acquired information. E. Supplementation of Expert Reports. Defense expert Luke Danielson intends to

supplement his report based on recently acquired documents and testimony. Charlie Stott, an expert retained by GeoSyntec, also is preparing a supplemental report based on recently conducted discovery. F. Additional Depositions Based on New Information. Defendants reserve the right

to depose Greg Shenton, or other Ivanhoe Capital representatives, after pursuing the production of documents related to Friedland's payments and/or capital contributions to Ivanhoe Capital pursuant to the Court's orders on motions to compel. Defendants also reserve the right to reopen the deposition of Robert Friedland based on newly obtained information. 10. SETTLEMENT The parties have conferred regarding the scheduling of a settlement conference in this case. At this time, a settlement conference has not been set. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

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12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. 3. This matter is a trial to the court. The estimated trial time is 20 court days. The situs of trial is the United States District Court for the District of Colorado.

DATED this _____ day of March, 2007.

BY THE COURT:

United States Magistrate Judge

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APPROVED: s/ Colin Deihl, Esq. Colin Deihl, Esq. Eric Triplett, Esq. Faegre & Benson, LLP 1700 Lincoln Street, Suite 3200 Denver, CO 80202-4532 Telephone No.: 303-607-3500 Attorneys for Defendant TIC ­ The Industrial Company

s/ Terence M. Ridley Terence M. Ridley, Esq. Marian L. Carlson, Esq. Wheeler Trigg Kennedy LLP 1801 California Street, Suite 3600 Denver, CO 80202-2617 Telephone No.: 303-244-1800 Attorneys for Defendant GeoSyntec Consultants, Inc.

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