Joseph Ray LeJeune, Jr., Russell L. LeJeune, Charles M. LeJeune, Cindy L. Johnson, Billie S. LeJeune, Merel L. Smith, Estate of Joseph R. LeJeune, Sr. VS Reed Rubinstein, A. Rachel Rothman, Pepe & Hazard, LLP, Koch and Rouse, LLC, Ron Riggle, Gary J. Rouse

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NOT DESIGNATED FOR PUBLICATION STATE OF LOL ANA ISI RT COL OF APPEAL FIRST GIRCLTIT MBE NU 2012 CA 0891 JOSEPH R LEJELTNE JR RUSSELL L LEJELTNE CHARLES M LEJEiJNE CINDY L JOHNSON BILLIE S LEJELJNE MEREL L SMITH AND ESTATE OF JOSEPH R LEJELTNE SR VERSUS REED RUBINSTEIN A RACHEL ROTHMAN PEPE HAZARD LLP KOCH AND ROUSE LLC RON RIGGLE AND GARY J ROUSE Judgment Rendered C r MAY 1 Q 2013 r Appealed from the Eighteenth Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana Suit Number 36 534 Honorable Alvin Batiste Jr Presiding Victor Counsel for Plaintiffs Appellees L Marcello Donald T Carmouche 3oseph R LeJeune Jr et al John H Carmouche William R Coenen III John S Dupont III Brian T Carmouche D Adele Owen Ross J Donnes Baton Rouge LA and Karl J Koch Baton Rouge LA and Allen J Myles Plaquemine LA FQ 12 1 r C1 C f Nancy Marshall Joseph L McReynolds Cuunsel for Defendants Appellants Reed Rubenstein and Pepe Hazard Karen P Holland LLP New Orleans LA and Anthony M Clayton Port Allen LA BEFORE CARTER GUIDRY AND GAIDRY JJ 2 GUIDRY J In this legal malpractice action defendants Reed Rubinstein and Pepe Hazard LLP appeal from the trial court jud in favor of plaintiffs Joseph s nent R LeJeune Jr Russell B LeJeune Charles M LeJeune Cindy L Johnson Billie S LeJeune Merle L Smith and the Estate of Joseph R LeJeune Sr warding them 447 in damages for defendants failure to timely file suit on their 00 000 state law cause ofaction For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On June 23 1999 Joseph R LeJeune Sr died of multiple myeloma After his death plaintiffs became concerned that he may have been exposed to hazardous substances contained in barrels given to him by Nan Ya Plastics Corporation Nan Ya a local manufacturer of PVC film in February of 1993 After having the barrels tested by an environmental engineer the plaintiffs contacted Reed Rubinstein an environmental lawyer then practicing in Connecticut to represent them in their claims for personal injury and property damage against Nan Ya The plaintiffs and Rubinstein entered into a contingency fee contract on November 15 1999 Thereafter on August 30 2001 more than two years following the death of Joseph R LeJeune Sr Rubinstein tt Iocal counsel filed a complaint in rough United States District Court for the Middle District of Louisiana against Nan Ya asserting claims under the Comprehensive Environmental Response Compensation and Liability Act of 1480 CERCLA the Resource Conservation and Recovery Act of 1976 RCRA and state law claims for personal injury property damage survival damages wrongful death damages and punitive damages Nan Ya answered the complaint raising as one of its defenses the prescription ofplaintiffs claims 3 On June 19 2002 the plaintiffs filed a petition for damages in Louisiana state court asserting that Rubinstein failed to timely file an action on their state law claims within the one year prescriptive period and should the federal district court find that plaintiffs state law claims are prescribed Rubinstein and Pepe Hazard LLP the law firm employing Rnbinstein are liable for legal malpractice Thereafter the federal district court dismissed plaintiffs state law claims as prescribed pursuant to a motion for partial summary judgment filed by Nan Ya In response to the state court legal malpractice action Rubinstein and Pepe Hazard defendants filed a motion for partial summary judgment on the alleged malpractice claims conceming their state law medical damages claims asserting that plaintiffs cannot establish a causal link between their injuries and any alleged exposure to any materials brought to the plaintiffs property from Nan Ya Following a hearing on the motion the trial court signed a judgment granting summary judgment in favor of defendants and dismissing plaintiffs wrongful death and personal injury claims against defendants The remainder of plaintiffs claims asserted in the malpractice action proceeded to a bench trial on October 18 2010 after which the trial court 20 signed a judgment in favor of the plaintiffs and against the defendants in the amount of 447 together with legal interest from the date of judicial 00 000 demand and all costs of the proceedings The trial court also ordered that plaintiffs claims arising from allegations that defendants were negligent in the handling of their personal injnry and wrongful death claims be dismissed with prejudice Defendants filed a motion for new trial which was denied and they now appeal from the trial court judgment s DISCUSSION To establish a prima facie case for legal malpractice a plaintiff must prove there was an attorney relationship the attorney was guilty of negligence in client 4 his handling of ttie lient ca nd he at ri7i cau the cli s e s rnzv sconduct ed nt some loss 129 138 or damabe Costtlfl z pLa li 64 Sa 2d r1i46 Iia 3 04 41 Causation of course is an essantial elennent of arAy tort elaim However once th Client has pxovea that his former attorney accepted employment and failed to assez the claim irr thcri the lie has estahlished a rima facie t lv case that the negiigeg ca him sor z sinee it is unlikely the attorney ee sed e ss would have agreed to handle a claim completely devoid of inerit Jenkins v St Paul Fire Marine Insurance 422 So 2d 11Q9 1110 La 1982 Co Once a prima facie case of mai has been made by the plaintiff the ractice burden of proof shifts to the defendanfi and the defendant attorney bears the bnrden of proving that the client could nut have succ on the original claim Presta eded e v Clark 97 p 9 App 1st Cir 0524 La 9 2 723 So 2 1086 1Q91 n 9 writ denied 99 La 3 739 S 2d 8 se 7enkins 422 So 2d at 0234 99 26 0 also 1110 Accordingly when the plaintiff prov that negligence on the part of his s formex attorney has caused the loss of Yhe opportur to assert a claim and thus ity establishes the inference c eausation Qf iasxiages resulting from the lost f opporlunity for rec an appellate cou iiewizig the evidence on the merits of overy t r the original clairn in the ligk xiiost favora to the prevailing party in the trial x le court must determixi whether t n zney met his hurden of producing ae gdige Yatt sufficient proof to overcome plaintiffs prima facbe case Jenkins 422 So 2d at 1110 In the instant case he partiec do not dYSpute that an att client y rn relationship existed between th The record demonstrates that the plaintiffs and rn Rubinstein entered into a aontingency fee agreement on November 15 1999 whereby Rubinstein agr to represent tkie plaintiffs in th pursuit of their ed personal injury and property damage claims 5 against Nan Ya Therefore the plaintiffs have established that art ta existed beiween them ntret iz m rxie atk nship and the defendants After agreeing to re h pl R filecl suit on their behalf resen s iniiff ubinstein in federal distriet court on u 0 2 usserting federal claims under ast fl i CERCLA and 1ZCRA as well s iate law cl fe personal in Wrongful irn x ury death damages survieal dam pz aar and pecnitiv damages as perty lage However according to La C arts 23151 an 2 15 a beneficiary has one year d 2 from the death of the deceased to brir a s and wrongful death action See g arviv Z also Jones v 0441 Fontenot 12 p La 6 1pp 1 st Cir 28 12 So 3d Further prescription commenees ta run on delictual actions asserting claims for damages to immovable property oPi the r the ovvner of the immovable acquired ay or should have acquire3 kno led ofthe damage La C arts 3492 3493 see e also Na v Bollinger Shipyards In i1 pp 4 La App 1st Cir uizi 1217 5 12 9 102 So 3d 875 879 writs ed 2676 2754 en 12 12 La 2 108 So 13 8 3d 87 108 So 3d 93 According to the recard 1 died c June 23 1999 I Jeun n herefoze any wrongful death and survival clai rescribed ne ear following his death or i3 June 23 2Q00 dclitionallv Ma ield an consultant testi ental m rirar n ied that she conducted testing af pl propzrty and found evidence of intiffs contamination in September of 1999 I1 she compil a repQrt detailing ereafter d her findings o F contaminatiox wh h delivered to Rubinstein in April of 2000 ch Accordingly at fhe latest the platn4iffs acquired or should have acquired knowledge of damage to the LeJeune property by April of 2000 and therefore any properly damage claims prescribsd one year at in April of 2001 Thexefore it is r Plaintiffs also asserted ciaims for tl rvn persc injuries susiained as a result of the eir nai alleged contamination of their property s as headaches nausea emocional distress mental zch anguish Ioss of consortium skin sores iesions and increased risk of cancer nd other disease or However Yhese cIaims were not discussed n the trial co 1been disrnissed by ay of a art previous motion for partial summary ludgnent and are not at issue n the instant appeai 6 clear that Rubinstein who did not file the lawsuiY untilAugust 30 2001 failed to file suit on the plaintiffs survieal and vvrongfuJ death claims within one year of s LeJeune death and also failed to file suit on laintiffs property damage claims within one year of knr of cc wledge the ntaminatian As such plaintiffs have established a prima facie case that Ru s binstein negligence in failing to timely tile their wrongful death surviva and property damage claims caused them some loss and the burden shifted to defendants to produce evidence to overcome plaintiffs prima facie case by proving that the plaintiffs could not have succeeded on the original claim See Jenkins 422 So 2d at 1110 At trial defendants asserked that plaintiffs suffered no loss as a result of s Rubinstein failure to timely file suit on their survival and wrongful death actions because the trial court had previously determined by way of a partial motion for summary judgment that plaintiff could t establish that any alleged s ot contamination of the LeJeune property caused injury to LeJeune or caused his Z The defendants assere that the trial court misapplied the burden of proof arguing that Jenkins does not relieve a plaintiff irom proving ciamages but only shifts the burden to the attorney to rebut the inference of causation I3owever this interpretation is in direct contravention of the language of Jenkins wluch states that a rule which requires the client to prove the amount of da by tryang the ease within a case simply im too great a mages poses standard of certainty of proof and the mrar logical approach s to impose on the negligent attorney at this point in the trial the burden of going forward with evidence to overcome the elienYs prima facie case by proving that the client conld not have succeeded on the original claim and the causation and damages questions are then up to the jury to decide Jenkins 422 So 2d at 1 ll 0 Emphasis added Further we find the defendants reliance on Rawboe Pronerties LLC v Dorsey 06 0070 p 10 La App 4th Cir 3 955 So 2d 17 183 writ denied 0 La 6 957 07 21 7 0763 07 1 So 2d 178 to be misplaced In Rawboe the issue of malpractice was determined by way of a motion for summary judgment and the only issue at trial was whethar the plaintiffs were owed damages as a result of the malpractice The plaintiffs azgued on appeal that the trial court incorrectly placed the burden of proving daanages on them requiring them to try a within a case case 06 at pp 4 9 955 So 2d at 180 182 0070 10 183 However the Fuurth Circuit specifically noted in upholding the trial court determination on damages that the defendants s presented evidence at trial sufficient to overcome Appellant allegations of damages that were s incurred as a result of the attomey malpractice and that this does not indicate that the trial s court required Appeilants to try a within a case Rawboe 06 at p i Q 955 So 2d at case 0070 183 Accordingly the court in Rawboe did not distinguish Jenkins but rather followed Jenkins by finding that the defendants had met their burden in overcoming plaintiff prima facie s showing of damages and absent any othzr showing of damages by the plaintiffs were entitled to judgment in their favor Rawboe 06 at p 10 955 So 2d at 183 Therefore we find 0070 defendanYs azgument that the trial court misapplied the burden of proof without merit 7 death Though it is unclear wheiher these claims were even before the court at the trial of this matter having de previously dismissed we find that the previous n dismissal of these claims due to lack of evidence of naedical causation proves that the plaintiffs could not establish t they suffered a loss as a result of Rubinstein hat s failure to timely file their suroival and wrongfdl death claims As such we find no error in the trial court inc in the final judgment of an rder formally s usian dismissing plaintiffs claims arising froLn allegations that the defendants were negligent in the handling of plai personal injury and wrongful death claims itiffs Defendants also assert that they carried their burden of showing that plaintiffs have not suffered any damages as a result of Rubinstein failure to s timely file their property damage claim because the evidence presented at trial established that the plaintiffs property was not damaged by contamination from material in Nan Ya barrels s It is undisputed that LeJeune approached Nan Ya about acquiring some fifty five gallon barrels of waste oil that he noticed on Nan Ya property when he went s to pick up mahogany crate wqod Thereafter LeJeune used a trailer to pick up approximately sixYy barrels which he stored on his property A picture of seven these barrels on the trailer depicts red and orange barrels as well as some blue barrels According to the testimony of James Cline the safety and environmental coordinator at Nan Ya from 1991 raw materials including oil plasticizers 1995 and stabilizers were brought to Nan a in fifty galion barrels Cline stated tive Though the defendants made their assertions regardin tlie survival and wrongful death claims in their post trial brief submitted to the trial court there was no evidence presented t the trial of this mattex xegazding these claims nor did the plainriffs attempt to re these claims as urge a basis for their malpractice action On appeal the defendants assert that the trial court erred in finding that they failed to carry their burden of proving that their negligence did not cause a loss with regard to plaintiffs wrongful death and survival claims However the trial court spzcifically noted in its reasons for judgment that it had previously gxanted summary judgment in favor of defendants on these claims and the final judgment as detailed above dismisses these claims against the defendants Accordingly we find this assignxnent of error to be without merit 8 that lubricating oil and gear oil were in reddish barrels and plasticizers and orange stabilizers were in black ar blue barrels Cline stated that the barrels at Nan Ya had residual from the raw materials because they couldn talways get everything out of the barrel contained Cline stated that some of these barrels contained stabilizers some oil and some contained mixture of different chemicals a Cline acknowledged that some of these drums could have been given to LeJeune He also stated that used oil from the process of making PVC which is a mixture of various waste streams and contains stabilizer was potentially given to LeJeune Following LeJeune death and after receiving a letter from the Louisiana s Department of Health and Hospitals LeJeune family contacted Mary Fields a s civil environmental engineer to come and examine the barrels and give them advice According to Ms Fields testimony she visited the plaintiffs property and conducted sampling in September of 1999 and February of 2000 In September of 1999 she sampled a barrel an underground starage tank and material she found oozing from a corroded barrel After having the samples tested she discovered that all three samples tested positive far phenol a listed U hazardous waste 188 According to Ms Fields she was surprised to find phenols of this level in used oil In February of 2000 Ms Fields sampled three different drums and sent the samples to two different labs The lab results showed different types of benzenes acetone and butanone however they did not include an analysis for phenol Greg Miller an environmental consultant qualified as an expert in geology hydrogeology site assessment remediation and implementation of RECAP also testified at trial Mr Miller stated that he reviewed Ms Fields report and did preliminary research on what potential constituents might have been used at Nan Ya 5 Mr Mi11er stated that he visited the plaintiffs property inventaried the RECAP Risk Evaluation and Corrective Action Program is a Department of Environmental Quality risk assessment program 9 barrels and performed sampling or an Qverpauked arrel and the underground storage tank The rofYhe sarnpling showed ov veri percent phenol in the sults rel overpack barrel which according Yo Mr Miller as a lot Phenoi dvas also found in the underground starage tank Mr Miller agreed with Ms Fields that phenol is not normally a component seen in used oil Accoraing to Mr Miller the likely source for the phenol is a Baerostab 361 stabilizex a barium stabilizer used zinc cadmium by Nan Ya in the production of PVC film In arriving at this conclusion Mr Miller relied on the deposition testimony of Mr Gline who stated that it was possible that some of the drums given to LeJeune could have contained Baerostab stabilizer Mr Miller also reviewed material safety data sheets MSDS generated by Nan Ya for Baerostab which state r unde the heading hazardous decomposition that soluted phenol can occur in the case of hydrolysis with water Mr Miller aclrnowledged that he could not say exactly how that reaction occurs but he stated that it is the only evidence in the case to explain the finding of eleven percent phenol in the overpack barrel and phenol in the underground storage tank where LeJeune poured contents of the Nan Ya barrels Mr Miller further stated that though the finding of phenol is a marker for Baerostab the real bad actor with that mat is the cadmium which makes the rial material hazardous The hazardous charac of the Baerostab is evidenced by an ter April 1993 notice of hazardous waste activity senL by Nan Ya to the Louisiana Department of Environmental Quality DEQ showing cadmium as a D listed hazardous waste generated by Nati Ya Mr Miller stated that though he did not test for cadmium because he did not receive informatiom about Nan Ya s characterization of waste until after his assessment he thinks more probable than not that he will find cadmium if the source of the phenol is Baerostab Mr Miller reiterated that in his opinion the only plausible source of the phenol in this ase is the Baerostab stabilizer 10 Further Miller testified that tb ne dYd not fnd phenol in the soil agh o surrounding the undergroun storage tank he did find a hydrocarbon mixture diesel fuel and oiL Mr Miller stated that these w oil signatnres given Charles s LeJeune testimony that the tar was always used for fuel u uratil the time that k his father LeJeune receiv tlie vaste o barrels frcam Nan Ya at which point d l LeJeune put the waste oil in e tazik relates the contamination of the s to Nan il Ya Miller stated that there was also an isolated pocket of soil contamination adjacent to a barrel which showed chemicals consisYent with products used by Nan Ya as solvent cleaner At trial defendants presented the testimony of Dr Raymond Harbison an expert qualified in pharmacology toxicology and site assessment for risks for human health Dr Harbison stated thaf he visited the plaintiffs property twice taking pictures and investigating inside the repair shop In his opinion none of the materials or chemicals identified at the property can be specifically connected to Nan Ya Rather in his opinion these materiats are associated with the operation of a repair facility Further Dr Harbison stated that he did not know of a mechanism under conditions either at Naza Ya or at the plaantiffs property by which the Baerostab could be converted to phenoi Dr Harbis who is not a chemist but in did state that he uses chemistry in the practice of toxi acknowledges that the ology MSDS says soluted phenol occurs in case of hydrolysis with water but he states that is a reaction that is not likely to occur without significant energy to break the covalent bonds to release the phenol in the molecule However Dr Harbison noted that hydrolysis could occur with an oxidizer such as peroxide ar nitric acid The defendants assert on appeal that the trial court erred in admitting Mr s Miller testimony that phenol indicated the presence of cadmium asserting that Mr Miller opinion was unsubstantiated speculation The factual basis for an s expert opinion determines the credibility of the testimony 11 An unsupported opinion can offer no assistance tU the fact finder and should not be admitted as expert testimony Miramon v Bradlev 96 p 6 App 1 st Cir 9 1872 La 97 23 701 So 2d 475 478 The abuse of discretion standard applias to the trial court s ultimate conclusion as to whether to exclude expert witness testimony and to the trial court decisions as to how to determine reliability Ashy v Trotter 04 s 612 pp 18 La App 3rd Cir 11 888 Sa 2d 344 356 writs denied OS 19 04 10 0180 OS La 3 896 So 2d 1045 1047 0347 OS 24 To ensure reliability an s expert opinions may not be based on subjective belief or unsupported speculation Goza v Parish of West Baton Rou 08 p 1 App lst Cir e 0086 La 09 5 on rehearing 21 So 3d 320 3 writ denied 09 La 12 23 40 2146 09 11 So 3d 919 cert denied 130 S Ct 3277 176 L Ed 2d 1184 2010 In arriving at his opinion Mr Miller relied on the information supplied by Nan Ya on the MSDS as to the hazardous decomposition of Baerostab These sheets describe Baerostab as being made up of barium zinc cadmium These sheets also specifically note that soluted phenol occurs in the case of hydrolysis with water Therefore Mr Miller opinion that it is more probable than not that s cadmium is present given his fmding that Baerostab is the only plausible source in this case to explain the presence of phenol is not purely speculative but is supported by documentary evidence in the record Further Dr Harbison aclrnowledged that cadmium is a part of the Baerostab stabilizer and that soluted phenol could occur in the case of hydre with water and an oxidizer lysis Accordingly we find no abuse of the trial court discretion in admitting Mr s s Miller testimony that the finding of phenol 12 indicated the presence cadmium The defendants also assert that the only evidence in the record as to contamination was purely speculative After reviewing the record we find that the evidence presented at trial considered as a whole amounts to mare than mere speculation and rather is circumstantial proof that the barrels provided by Nan Ya to LeJeune contained hazardous waste It is weYl established that proof in a case may be by direct or circumstantial evidence Se Benjamin ex rel Beniamin v Housing Authority of New Orleans 04 p 5 12 893 So 2d 1 4 1058 La 1 04 And the use of circumstantial evidence and the deductions and inferences arising therefrom is a common process for establishing liability Cangelosi v Our Ladv of the Lake Re Medical Center 564 So 2d 654 665 La 1989 ional Further viewing the evidence in the record in the light most favorable to the plaintiffs we find no error in the trial court determination that the defendants s failed to prove more probable than not that the plaintiffs would not have been successful in their state law claim for property damage against Nan Ya See Jenkins 422 So 2d at 1110 Defendants a that the testimony of Chad Serio the manager of sert maintenance at Nan Ya at the time of trial that he did not put anything into fifly five gallon barrels except waste oil from the machines after they arrived from the manufacturer in Taiwan supports their assertion that the barrels provided to LeJeune did not contain hazardous waste However Mr Serio also stated that he did not know anything about plasticizers and stabilizers and did not lrnow how they 6 The defendants also assert in one sentence in their bxief that Dr Hazbison stestimony was more than sufficient to dispel the notion that is was possible that phenol was a maker far cadmium contamination in this casa However it is well settled that where the testimony of expert witnesses differs the trier of fact has great even vast discretion in determining the credibility of the evidence and a finding in this regazd will not be overiumed unless it is clearly wrong Cotton v Sate Farm Matual Automobile Insurance Comnany 10 pp 7 La 1609 8 App lst Cir 6 65 So 3d 213 220 writ denied 11 La 9 68 So 3d 522 11 5 1084 11 2 After reviewing the record we cannot say that the trial court was clearly wrong in choosing to credit the testimony of Mr Miller over that of Dr Hazbison 13 arrived at Nan Ya because he oniy worked on khe machine lines and plasticizers and stabilizers were handled by a different department Further upon looking at various pictures of barrels on the plaintiffs property Serio admitted that he could only identify barrels that came from his department and other barrels on LeJeune s trailer could have come from some other departmer at Nan Ya T Additionally the defendants rely on a DEQ report from February 17 1993 This report prepared following a RCRA compliance evaluation inspection of Nan Ya states that there are no apparent violations of the Louisiana Hazardous Waste Regulations However the infarmation in the report was provided by individuals at Nan Ya who stated that they did not generate hazardous waste that the only anticipated hazardous waste was a D001 parts wash solvent that as of that time no used oil had been shipped off site but was being stored in fifty gallon barrels five on the property and that Nan Ya planned on having the oil picked up by a handler registered with the DEQ However the evldence at trial unequivocally establishes that Nan Ya gave Le7eune barrels of used oil sometime in February of 1993 and Nan Ya reported shortly thereafter that they were generating D006 hazardous waste containing cadmium which information clearly conflicts with that provided in the report Further the lab results attached to the report showing concentrations of chemicals below regulatory limits reflect testing of samples from a cooling tower and there is no evidence in the record that the cooling tower is related to any material in Nan Ya barrels or that it is the source of the used oil waste stream s Finally the defendants assert that the testimony of Dr Harbison supports their assertion that the soil and groundwater on the plaintiffs property was not contaminated by anything from Nan Ya barrels At trial Dr Harbison stated that s any contamination of the soil or groundwater on the plaintiffs property was the result of operations of LeJeune repair shop and not substances in the Nan Ya s barrels However as detailed above Mr Miller specifically related the 14 contamination of the plaintiffs property t the barrels received from Nan Ya The defendants acknowledge in their brief that these opinions represent equal probabilities Accordingly because the burden was on the defendant to come forward with evidence to overconie the plaintiffs prima facie case and viewing the evidence in the light most fa to Lhe plair we find no error in the rable c tiffs trial court determination that the defendants failed to ttieet their burden s In addition to arguing the merits of the plaintiffs underlying state law property damage claim the defendants also assert that the plaintiffs have not suffered a loss as a result of the defendants failure to timely file that claim because any damages that may have been awarded by the trial court are recoverable as costs in the timely federal CERCLA and RCRA response filed actions CERCLA provides a remedy to a claimant seeking to recover response costs for removal and remediation of hazardous substances released into the environment 42 U 9601 To establish a prima facie case of liability C S 9675 under CERCLA a plaintiff must prove 1 that the site in question is a facility as defined in 9601 2 that the defendant is a responsible person under 9 a 9607 3 that a release or threatened r of a hazardous substance has elease occurred and 4 that the release or threatened release has caused the plaintiff to incur response costs Amoco Oil Co v Borden Ina 889 F 2d 664 668 Sth Cir 1989 However a plaintiff may only recover those response costs that are necessary and consistent with the National Contingency Plan 42 C S U B 4 a 9607 Unlike CERCLA however RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards Me KFC Western Inc 116 S Ct gv 1251 1254 516 U 479 483 134 L Ed 2d 121 1996 RCRA primary S s 15 purpose rather is to reduce the generation of hazardous waste and to ensure the proper treatment storage and disposai of that waste which is nonetheless generated so as to minimize the present and future threat of hunnan health and the environment Meghrig 116 S Ci at 125 S1C U S at 483 A suing to 3 plaintiff enforce the provisions of RCRA under 42 U 69 may obtain a C a S 2 B 1 mandatory injunction ardering responsible party to take action by attending to the cleanup and proper disposal of toxic waste or a prohibitory injunction restraining a responsible party from further violating RCRA if he establishes 1 that the defendant is a person including but not limited to one who was or is a generator of solid hazardous waste or one who was or is an owner ar operator of a solid or hazardous waste treatment storage or disposal facility 2 that the defendant has contributed to or is contributing to the handling storage treatment transportation or disposal of solid hazardous waste and 3 that the solid or hazardous waste may present an imminent and substantial endangerment to human health or the environment 42 U 6972 j see also Me 116 S Ct Cl S aB ig at 484 516 U at 1254 S The defendants have not produced any evidence that the plaintiffs would be able to recover under these federal causes of action which require a mare onerous standard of proof than a state law negligence action for damage to property First I with regard to the CERCLA action there is no evidence that the plaintiffs incurred any response costs which as set forth above is a necessary precondition to recovery under CERCLA See Trimble v ASARCO Inc 83 F Supp 2d 1034 1040 1038 D Neb 1999 affld 232 F 3d 946 8th Cir 2000 The only action taken thus far with regard to the property is the testing conducted by Ms Field which both Charles LeJeune and Ms Field testified was uncompensated Therefore assuming that such costs are considered response costs consistent 16 with a CERCLA action sueh w ere ut ar cause tk plaintifFs did not sts u uir f pay Ms Field for her s rvicas Second with tegard to tihe RC actior ihere vvas r e d that the RA o nce alleged hazardous waste at the pl gro presents ari mrriinent and aintiffs erty substantial erment endan to haman health oz e t envzronment in fact the defendants own expert Dr F cxficaflby stated that it is n an imminent nsp Iarbsi t and substantial endangerinerit to k or the envixoriment ealth Accordingly because the b was on the defendants tc prove that the n ard plaintifffs did riot suffer a Ioss as a r of the ci failure to timeiy file suit efendants their state law pr damage cIai and trie evidence of ecc establishes ghat operty ns rd the stata law property damage claim is the only viabl clairri upon which they can recover damages for contaminatiari ot their ropeny we find no enor in the tria s court determination that h defendants failed to o the plaYntiffs prima ercome facie case of legal malpractice against the defendants Finally the defendants asserl that the t court eried in a the rial varding s amages plaintiff c in the a of 4 Idefer assert that tl nount OU O 0 7 he dants damage award should be reduced to 2Q representing tae cost for removin 00 0 Ot the rernaining barpels and 3he undergroun stoxa tank g In suppQrt of heir assertion defen rely i the testimc c Keith Ha an estimator and lants r eS project manager fox lean C Harbors Ni I stated that tbe did a site s iay examination and cietermined that the estirr cUSt tu c u the property ated ear including vacuuming out and washing the barre and vacuuming c removing s ut and crushing the ixnderground storage tank is between 18 and 20 00 OOU 00 000 Mr Hayes stated that this estimate also includes the cost to remove soil if leakage occurred and was baseci on the waste oil being classified as n s hazardo an waste The estima does not however include thz cost for Yesting the content of the e barrels i7 Mr Miller however azed t he sb the clean costs to be at mateu izp 00 000 447 This estimate in banrel azsp assuming er barrel would cluded sal ch have to undergo charaeterizati nr samplin to cletermine hc to manage it w closure and removal mf the undergraund s tthe cont of hich are g r nts assumed to be ha rc re and mon nd soil ardous urs ec r te ia w ga n torrn excavation and disposal 1 iider I Pv stated tlhat the esti is based on the e ta hazardous classification of all of the batrelv antaining substances and the non hazardous classification of the soil and groundwater to the extexit that he knows what is contaminated at this ti Mr Miller also opzned that this estimate could e cn increase if cadmivan is detected in the soil Given the evidence in the record we find no error in the trial court s decision to aecept the esrimate offered by Mr Miller rather than that offered by Mre Hayes Mr Nliller was the only e quali at trial to offer tesiimony on xpert ied remediation and unlike Mr Hayes Mr Mi11er es take Jnto account the imate likely presence of hazardous waste an the pro and includes c for testing to rty sts ensuire praper d Accordin we tiradl ria eiror in the tria court award of asposaL l s in 00 000 ages 447 da SICiN ti I C CO For the foregoing reas we af the audgrnent oit the trial court ns irm awarding the LeJeunes 447 t 00 000 gethex with lega interest frozn the date of judicial demand Rubinstein and Pepe All costs of this appeal are assessed to defendants Reed Hazard LLP AFFIRMEll 18

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