District Court Reverses Course And Rejects Divisibility Cap On Superfund Liability

A Wisconsin district court has reversed its prior ruling that NCR Corporation's liability for contamination in the Fox River was divisible and therefore limited, holding that the evidence used to establish the divisibility defense was unreliable.

Five months after ruling that NCR Corporation's (NCR's) liability for contamination in the Fox River is limited to NCR's share of contamination contributed to the river, a Wisconsin district court has reversed itself, holding the evidence that NCR used to establish its divisibility defense was unreliable.¹ The court's decision comes after the United States and multiple other parties asked the court to reconsider its earlier finding that NCR had established that its contribution to the harm was divisible and, therefore, that NCR was not jointly and severally liable for costs to clean up the Fox River. In support of their position, the parties seeking reconsideration argued that the evidence offered to establish divisibility