Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-16-1994

Leo v. Kerr-McGee Chem. Corp.
Precedential or Non-Precedential:

Docket 93-5730




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              UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                        No. 93-5730


      ELAINE LEO, Administratrix of the Estate of
    CATHERINE M. BEKES, deceased, Administratrix Ad
 Prosequendum on behalf of the Estate of THOMAS BEKES,
 deceased, and individually; LINDA YODER, individually

                             v.

KERR-MCGEE CHEMICAL CORPORATION, a Delaware Corporation,
successor in interest to Welsbach Company and/or Welsbach
     Incandescent Gas Light Co., Lindsay Chemical Co.,
 American Potash and Chemical Corp. and American Potash,
     an Illinois Corporation; U.G.I., f/k/a United Gas
     Improvement Company, a Pennsylvania Corporation;
    JOHN DOES 1-20; ROBERT ROES 1-20; JAMES JOES 1-20;
      XYZ CORPORATION 1-20; RHEEM RUDD, a corporation
      successor interest to City Investing Co., Rudd
   Waterheater Division and Rudd Manufacturing Company

              Kerr-McGee Chemical Corporation,

                                                 Appellant


     On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. Civil No. 93-01107)


                   Argued August 1, 1994

    BEFORE:   GREENBERG and STAPLETON, Circuit Judges,
                and ATKINS, District Judge*

                (Filed: September 19, 1994)


                             Thomas J. Hagner (argued)
                             Freeman, Mintz, Hagner &
                             Deiches
                             34 Tanner Street
                             Haddonfield, NJ 08033-2482
                                      Attorneys for Appellee


* Honorable C. Clyde Atkins, Senior United States District Judge
for the Southern District of Florida, sitting by designation.
                                 Peter J. Nickles (argued)
                                 Coleman S. Hicks
                                 Richard A. Meserve
                                 Elliott Schulder
                                 Caroline M. Brown
                                 Covington & Burling
                                 1201 Pennsylvania Ave., NW
                                 P.O. Box 7566
                                 Washington, DC 20044-7566

                                      Attorneys for Appellant


                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

               I.   FACTUAL AND PROCEDURAL HISTORY

          This matter is before the court following entry of our


order on November 30, 1993, granting defendant-appellant Kerr-

McGee Chemical Corporation permission to appeal pursuant to 28

U.S.C. § 1292(b).   We will reverse the order of the district

court denying Kerr-McGee's motion for summary judgment entered on

September 8, 1993, and we will remand the matter to the district

court for entry of a summary judgment in its favor.

          The facts are largely not in dispute, and, in any

event, we accept the allegations of the plaintiffs-appellees

Elaine Leo and Linda Yoder for purposes of this appeal.   From

prior to the turn of the 20th century continuing until 1940, the

Welsbach Incandescent Light Company maintained and operated a

factory in Gloucester City, New Jersey, for manufacturing
incandescent gas mantles, a process involving extracting thorium

from monazite ores.   This process generated toxic wastes

consisting of thorium by-products which Welsbach deposited on the

factory site, thus contaminating the surrounding land.    In 1940,

Welsbach's Illinois-based competitor, Lindsay Light and Chemical

Company, purchased Welsbach's gas mantle business.    In the sale,

Lindsay acquired Welsbach's outstanding orders, records,

formulas, raw materials, inventory, customer lists, gas mantle

production line, and the right to use the "Welsbach" name.

However, Lindsay did not acquire the Gloucester City land and

factory.   Rather, it moved the gas mantle business to its own

plant in Illinois.

           Following a series of acquisitions, Kerr-McGee acquired

Lindsay, and it thus concedes that in this litigation it stands

in Lindsay's shoes.   Accordingly, we will refer to Lindsay and

Kerr-McGee simply as Kerr-McGee.    Welsbach owned a second line of

business which it sold to Rheem Manufacturing Company but Rheem's

successors, though originally defendants in this action, have

been dismissed from the case.     Welsbach was dissolved in 1944.

           In 1961, Leo and Yoder, who are sisters, and their

parents, Thomas and Catherine Bekes, moved to a home close to the

former site of the Welsbach factory in Gloucester City, though

Leo and Yoder now live elsewhere.    On December 5, 1988, Thomas

Bekes died from bladder cancer.    In March 1991, the New Jersey

Department of Environmental Protection notified Catherine Bekes

of the high levels of gamma radiation and thorium on her property

and on June 3, 1991, the New Jersey Spill Compensation Fund
acquired her residence, forcing her to relocate.   Soon thereafter

she also died from bladder cancer.   Leo and Yoder allege that

their parents contracted their bladder cancer from exposure to

thorium and other waste substances deposited on the Welsbach

land.

          On January 29, 1993, Leo and Yoder filed suit,

individually, and on behalf of their parents' estates, in the

Superior Court of New Jersey against Kerr-McGee and certain other

defendants to recover for death, injuries, and the potential risk

of cancer arising from their exposure to thorium and other waste

substances generated in the Welsbach gas mantle operation and

deposited on the Gloucester City property.   As germane here, Leo

and Yoder seek to impose liability on Kerr-McGee on a theory of

strict liability.1   While Leo and Yoder do not claim that Kerr-

McGee itself generated the waste which caused the deaths and

injuries, they assert that it is liable by reason of its

acquisition of Welsbach's gas mantle business.   On March 4, 1993,

one of the other defendants removed the case to the United States

District Court for the District of New Jersey on the basis of

diversity of citizenship.

          Subsequently, Kerr-McGee filed a motion to dismiss

under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint

did not state a claim on which relief may be granted inasmuch as

1
 . Leo and Yoder also set forth theories of liability predicated
on negligence and breach of warranty but we do not discuss them
as we find no support for liability on either theory and they do
not advance these theories on a basis distinct from the strict
liability claim.
Kerr-McGee never has owned the Gloucester City land and factory.

In its bench opinion the district court treated the motion as a

motion for summary judgment because it considered material other

than the complaint submitted on the motion.     The court then

predicted that the New Jersey Supreme Court would extend the

product line doctrine of successor corporate liability, as

explicated in Ramirez v. Amsted Indus., Inc., 

(N.J.

1981), to the toxic tort at issue, because the toxic by-products

were generated directly from the manufacturing of Welsbach's gas

mantles.2   Thus, the court denied Kerr-McGee's motion by the

order of September 8, 1993.      Kerr-McGee then moved for an

amendment of the order to allow an interlocutory appeal, and the

district court granted the amendment by an order entered on

November 1, 1993.    We then granted Kerr-McGee leave to appeal.



                           II.   DISCUSSION

            We exercise plenary review as the appeal presents an

issue of law.    Epstein Family Partnership v. Kmart Corp., 

 . The court also relied on Nieves v. Bruno Sherman Corp., 

(N.J. 1981), decided on the same day as Ramirez. We,
however, have no need to discuss Nieves at length as it merely
held that an intermediate successor corporation could be liable
under Ramirez even though there is a later viable successor
corporation in existence. We note that actions similar to the
one in this case are sometimes called "environmental torts" and
sometimes called "toxic torts." As a matter of convenience, we
use the latter term as the Supreme Court of New Jersey used that
term in T & E Indus., Inc. v. Safety Light Corp., 

,
1251 (N.J. 1991). Labels, however, are not significant, as we
are concerned with the circumstances leading to the attempt to
impose liability on Kerr-McGee rather than the characterization
of the claim.
762, 765-66 (3d Cir. 1994).     Furthermore, we will apply New

Jersey law as the parties agree that it is applicable.    Thus, we

undertake to predict how the Supreme Court of New Jersey would

resolve the issues in this case.    J & R Ice Cream Corp. v.

California Smoothie Licensing Corp., No. 93-5516, slip op. at 19-

21 (3d Cir. Aug. 4, 1994).

          We start, of course, with Ramirez, 

, in

which the Supreme Court of New Jersey held that:
          where one corporation acquires all or
          substantially all the manufacturing assets of
          another corporation, even if exclusively for
          cash, and undertakes essentially the same
          manufacturing operation as the selling
          corporation, the purchasing corporation is
          strictly liable for the injuries caused by
          defects in the units of the same product
          line, even if previously manufactured and
          distributed by the selling corporation or its
          

.   As the district court acknowledged, Ramirez is

distinguishable from this case.    Unlike the injuries in Ramirez,

the injuries of Leo, Yoder, and their parents were not caused by

a unit in the product line manufactured first by Welsbach and
then by Kerr-McGee.   Instead the injuries in this case were

caused by conditions created by Welsbach's operations on land

which Welsbach retained at the time of the sale of the gas mantle

business to Kerr-McGee and on which Kerr-McGee never conducted

any manufacturing activities.    Therefore, we must determine

whether in light of these distinctions from Ramirez, the New
Jersey Supreme Court nevertheless would apply the result in

Ramirez to this case.3

          The Ramirez court predicated its conclusion that the

successor corporation could be liable for injuries caused by its

predecessor's defective product on three rationales:     (1) the

sale of the enterprise virtually destroyed the injured party's

remedy against the original manufacturer; (2) the successor has

the ability to assume the original manufacturer's risk-spreading

role; and (3) it is fair to require the successor to assume a

responsibility for defective products as that responsibility was

a burden necessarily attached to the original manufacturer's good

will being enjoyed by the successor in the continued operation of

the business.    

  Clearly these rationales do not

support the extension of successor liability to Kerr McGee in

this case.

             The first factor, the destruction of the injured

party's remedy is a necessary but not a sufficient basis on which

to place liability on the successor.4    Accordingly, if the

3
 . A corporate successor can be liable for its predecessor's
debts on theories other than that recognized in Ramirez. For
example, liability can be imposed on the successor if it assumes
the predecessor's liabilities or if the predecessor merges into
the successor. 

. But we confine our
opinion to the question of whether Kerr-McGee may be liable based
on the product-line doctrine of successor liability as that is
the only basis for liability that Leo and Yoder advance against
Kerr-McGee.
4
 . Actually, we are not certain that Leo and Yoder effectively
do not have a remedy against Welsbach as they have named U.G.I.,
formerly known as United Gas Improvement Company, as a defendant
on a theory that United Gas dominated Welsbach and therefore
U.G.I. is "legally responsible for the obligations of Welsbach."
selling corporation remains a viable entity able to respond in

damages to the injured party, a successor acquiring a product

line will not be liable for injuries caused by the predecessor's

product after the product's sale as in that circumstance there

would be no reason to impose successor liability.   Lapollo v.

General Elec. Co., 

(D.N.J. 1987) (applying New

Jersey law after Ramirez).   This initial rationale for the

product-line doctrine of successor liability merely focuses on

the need for imposition of successor liability rather than

whether it is fair to impose it.   Therefore, we will not hold

that proof that Leo and Yoder cannot recover against Welsbach

because it has been dissolved is in itself a sufficient basis for

the imposition of successor liability on Kerr-McGee.

          The second rationale on which the Supreme Court of New

Jersey based its result in Ramirez was the successor's ability to

assume the predecessor corporation's risk-spreading role.     We

think that the Supreme Court of New Jersey would recognize that

Kerr-McGee does not have the capacity to assume Welsbach's risk-

spreading role.   In this regard, we point out that if successor

liability can be imposed for a toxic tort arising from the

predecessor's operations at a facility which the successor never

acquires or controls, a prudent manufacturer acquiring a product

line would make an analysis of environmental risks associated

with the seller's facilities similar to that now undertaken by
(..continued)
However, Kerr-McGee has briefed the case on the assumption that
Leo and Yoder do not have a remedy against Welsbach, and thus we
decide the case on that basis.
purchasers of real estate.    The purchaser then would attempt to

acquire insurance for possible liabilities associated with the

seller's real estate.

             The impediment to commercial transactions from such a

process is evident.    Indeed, inasmuch as a manufacturer might

build a product or its component parts at more than one facility,

a purchaser of a product line might face daunting obstacles in

attempting to assess its risks of successor toxic tort liability

for conditions on property to be retained by the seller of the

product line.     Furthermore, a product-line purchaser not

acquiring its predecessor's manufacturing facility probably would

not be able to lessen the risks of toxic tort liability

associated with the real estate.    It is doubtful that such a

product-line purchaser would be able to undertake cleanup

operations on land it did not own.    Moreover, the product-line

purchaser might be unwilling to undertake such potentially costly

projects.5    It seems clear, therefore, that if Ramirez applies

here, a purchaser of a product line will be subject to

liabilities for toxic torts of unpredictable scope for an

indefinite period.    Overall, we cannot conceive that the Supreme

Court of New Jersey would believe that the purchaser of a product

line not acquiring the real estate at which the product was



5
 . In FMC Corp v. United States Dep't of Commerce, No. 92-1945,
slip op. at 11 (3d Cir. July 5, 1994) (in banc), the government
estimated the cost of environmental cleanup of the facility
involved in that litigation at between $26,000,000 and
$78,000,000.
manufactured reasonably could assume its predecessor's risk

spreading role for toxic torts.6

            In contrast, a successor to a product line may be able

to take steps to reduce its risk of liability for injuries caused

by the predecessor's products through recall and educational

programs which include those products.    Furthermore, successor

liability for injuries caused by units manufactured by the

predecessor, at least when compared to potential toxic tort

liability, is a discrete manageable matter.    First, the successor

may be able reasonably to anticipate the risks associated with a

product it is acquiring.    Second, product-line successor

liability is applied in cases of the production of personal

property.    Inasmuch as such property is not likely to have an

indefinite useful life, passage of time will diminish the chance

of liability being imposed on the successor.

            This constant diminution of exposure to product

liability is enhanced by the rule followed in New Jersey and

elsewhere that a manufacturer cannot be strictly liable unless

there was a defect in the product when it left the manufacturer's

control.    Scanlon v. General Motors Corp., 

, 677

(N.J. 1974).    It seems apparent that, except perhaps in design

defect cases, a defect in a product when the manufacturer

distributed the product is likely to manifest itself and cause

6
 . In Ramirez the Supreme Court of New Jersey acknowledged that
the negative effect of successor liability in a product liability
case on the sale of manufacturing assets was a "legitimate"

. Thus, we think it appropriate for us
to consider that effect.
injury within a reasonable time after the product is

manufactured.   Accordingly, as a practical matter, successor

liability under Ramirez is likely to be imposed in most cases, if

at all, for a limited period.7   Furthermore, if there is an

injury from a product a long time after it leaves the

manufacturer's hands, the injured plaintiff may have difficulty

establishing that the defect existed in the product when

manufactured and originally distributed.   Thus, using the time

scenario here, it would be unusual for the successor in a product

line case to be defending an action in the 1990's for a product

that could have been built at the latest in 1940.

          On the other hand toxic tort liability can be imposed

for activities in the distant past.   See T & E Indus., Inc. v.

Safety Light Corp., 

(N.J. 1991).8   This tail on

potential toxic tort liability following the disposal of chemical

wastes is attributable to the fact that the toxic wastes may

remain in the ground for long periods, thus exposing persons and

property to injury long after manufacturing has ended.    Indeed,

this case demonstrates how long the successor can face claims for

toxic torts.    Furthermore, the difficulty that the purchaser of a

product line will have in assessing its risk of liability for


7
 . Of course, the length of the period depends on the type of
product involved. For example, machinery might last longer than
automobiles.
8
 . We recognize that T & E Indus. is not a personal injury case.
Nevertheless we cite the case to demonstrate how it is possible
that the consequences of chemical disposal may endure for a very
long period.
toxic torts as compared to its risk of successor product

liability is further heightened by the fact that whereas injuries

from defective products are likely to be traumatic, and thus be

immediately obvious, injury from exposure to toxic wastes may

develop over an extended period.   We also observe that it would

be more likely that the successor could acquire insurance

coverage for the discrete risks flowing from injuries caused

directly by a predecessor's product than for environmental risks

from conditions on real estate.

          The third Ramirez rationale, that it is fair to require

a successor to assume a responsibility for defective products as

that responsibility is a burden necessarily attached to the

successor's acquisition of the predecessor's good will, has no

application in this case.   The good will that Kerr-McGee acquired

from Welsbach was attached to the product line it acquired, gas

mantles, rather than to the site at which Welsbach manufactured

the product.   Thus, Leo and Yoder do not assert that this is a

case in which Welsbach and Kerr-McGee encouraged the purchasers

of the gas mantles to associate them with their geographical

source, as, e.g., "a genuine widget manufactured in the widget
center of the world."   Consequently, while Leo and Yoder point

out that Kerr-McGee's purchase of the Welsbach gas mantle product

line was profitable, and they attribute that profit in part to

the good will it acquired from Welsbach, that point is

immaterial.
           In reaching our result, we quite naturally consider our

opinion in City of Philadelphia v. Lead Indus. Ass'n, Inc., 

(3d Cir. 1993). There we indicated that while:
          [a] federal court may act as a judicial
          pioneer when interpreting the United States
          Constitution and federal law . . . [i]n a
          diversity case . . . federal courts may not
          engage in judicial activism. Federalism
          concerns require that we permit state courts
          to decide whether and to what extent they
          will expand state common law . . . . Our
          role is to apply the current law of the
          jurisdiction, and leave it undisturbed.

(internal citations and quotations omitted).     We could

allow liability to be imposed in this case on Kerr-McGee only if

we stretched Ramirez far beyond its original scope and, in light

of City of Philadelphia v. Lead Indus. Ass'n, Inc., we will not

do that.   While the district court believed that this case could

come within the Ramirez holding, in large part it reached that

conclusion because of what it thought was "the traditional New

Jersey view that if you are injured somebody ought to be liable

for it."   But we reject that approach.   While we might be willing

to apply the precedents of the New Jersey Supreme Court in

circumstances somewhat beyond the limits of liability that court

has recognized in extant cases, we will not apply Ramirez in the

circumstances here, which are far beyond the limits of that case.

           In closing, we note that the parties in their briefs

discuss cases involving liability of successors acquiring

contaminated property and other cases involving liabilities

arising from the ownership of and activities on real estate.

See, e.g., T & E Indus., Inc. v. Safety Light Corp., 

; State of New Jersey, Dep't of Envtl. Protection v. Ventron

Corp., 

(N.J. 1983).   We have examined these cases

but do not discuss them, as they have only the most tangential

relationship to this case in light of the fact that Kerr-McGee

never owned, controlled or engaged in activities on the

Gloucester City property.



                        III.   CONCLUSION

          We will reverse the order of September 8, 1993, and

will remand the matter to the district court for entry of a

summary judgment in favor of Kerr-McGee.
ELAINE LEO, ET AL. V. KERR-MC GEE CHEMICAL CORP., ET AL., NO. 93-5730



  ATKINS, Senior District Judge, specially concurring:

              While the record does not reflect the fact, this judge

  takes judicial notice of the procedure, adopted by 44 of the

  Supreme Courts or comparable final state appellate courts,

  permitting federal appellate courts to submit questions for

  resolution by such courts, involving state common law issues that

  remain "open."    Such procedure cries out for decision in the

  appeal sub judice.   The issue concerns, as the majority opinion

  so clearly demonstrates, whether this court should hold an entity

  liable for environmental degradation of land for commercial

  engrandizement after it obviously profited from such degradation,

  even though acquisition of land was not part of the product line

  purchase.    This salutary certification procedure avoids the

  charge, admittedly valid, that the federal courts should avoid

  extending, gratuitously, the common law of the states within the

  ambit of their jurisdiction.   City of Philadelphia v. Lead
  Industries Ass'n, 

(3d Cir. 1993).

              Here, we are called upon to decide what, under a new

  set of facts, the Supreme Court of New Jersey would decide in an

  issue it has never been called upon to consider.    Our problem is

  complicated by New Jersey's failure to provide a certification

  procedure permitting it to have a needed and proper voice in the

  development of the common law of its state.
           A.   The Development of New Jersey's "Product Line"

Doctrine

           When the district court denied the plaintiffs' Motion

for Summary Judgment, it relied on a string of cases defining the

present "product line" theory of successor corporation liability

for strict liability torts.   From the trend formed by these

opinions, the district court "predicted" how the New Jersey

Supreme Court would rule under the present factual circumstances.

The district court held that the product line doctrine of

successor liability originally adopted in Ramirez v. Amsted

Industries, Inc., 

(N.J. 1981), should be applied to

include circumstances where a predecessor corporation improperly

disposed of toxic manufacturing by-products on its factory site

and then sold its entire product line patented process, good

will, inventory, sales records and trade name, but not the

factory site itself, to a successor corporation which continues

the same manufacturing process at different site.    Upon review of

the line of cases dealing with the "product line" theory of

successor corporate liability in products liability cases, I

believe that the district court was correct in determining that

the New Jersey Supreme Court would apply the strict liability

doctrine to a strict liability environmental tort under these

factual circumstances.

           B.   Analysis
           This is not a case where the corporate successor

purchases some of the land that the predecessor contaminated and

then continued a separate business on that land.    Therefore,
State Dept. of Environmental Protection v. Exxon Corp., 

(N.J. Super. Ct. Ch. Div. 1977), is distinguishable.    This

case is, however, more like 

, in that Welsbach's

product line could be considered as all or substantially all of

the manufacturing assets which were acquired by Kerr-McGee's

predecessors.   Thus, even if the assets were acquired exclusively

for cash, and Kerr-McGee and its predecessors undertook

essentially the same manufacturing operation as Welsbach, Kerr-

McGee should be strictly liable for injuries caused by defects in

units or by waste from production of those units of the same

product line, even if previously manufactured and distributed by

Welsbach.   See 

.

            The policies in Ray v. Alad Corp., 560 P.2d (Ca. 1977),

and 

, apply similarly to the present case.    First

the plaintiff's potential remedy against Welsbach, the original

manufacturer who caused the contamination, was destroyed by the

Kerr-McGee's purchase of Welsbach's assets, trade name, good will

and Welsbach's resulting dissolution.   In other words, Kerr-

McGee's acquisition destroyed whatever remedy plaintiff might

have had against Welsbach.   Second, the imposition of successor

corporation liability upon Kerr-McGee is consistent with the

public policy of spreading the risk to society at large for the

costs of injuries from contamination due to a product line.     This

is because the successor corporation is in a better position to

bear accident-avoidance costs.   In this case, Kerr-McGee is in a

better position to bear the costs because Welsbach transferred to

Kerr-McGee the resource that had previously been available to
Welsbach for meeting its responsibilities to persons injured by

the product line it operated.    Third, the imposition upon Kerr-

McGee of responsibility to answer claims of liability for

injuries allegedly caused by Welsbach's product line is justified

as a burden necessarily attached to its enjoyment of Welsbach's

trade name, good will and the continuation of an established

manufacturing enterprise.   For "[p]ublic policy requires that

having received the substantial benefits of the continuing

manufacturing enterprise, the successor corporation should also

be made to bear the burden of the operating costs that other

established business operations must ordinarily bear."     

.   "[I]n light of the social policy underlying the

law of products liability, the true worth of a predecessor

corporation must reflect the potential liability that the

shareholders have escaped through the sale of their corporation."

such liability Kerr-McGee could have "obtain[ed]

products liability insurance for contingent liability claims, and

it [could have entered] into full or partial indemnification or

escrow agreements with the selling corporation."     

see

La Pollo v. General Electric Co., 

(D.N.J. 1987).
           Kerr-McGee, like Bruno in Nieves v. Bruno Sherman

Corp., 

(N.J. 1981), was able "to gauge the risks of

injury from defects in the [Welsbach] product line and to bear

the accident-avoidance costs, "since Kerr-McGee was intimately

familiar with the production of gas mantles and the unavoidable

thorium manufacturing waste.    

  Evidence to support

this conclusion is found by Lindsay's acquisition of all the
assets and sources of information related to the Welsbach product

line.   The liability also should apply to Kerr-McGee because

Kerr-McGee's "acquisition of the business assets and

manufacturing operation of [Welsbach] contributed to the

destruction of the plaintiff's remedies against the original

manufacturer" - Welsbach.    

  Finally, like State Dept.

of Environmental Protection v. Ventron Corp., 

(N.J.

1983), I believe that this Court should follow the New Jersey

Supreme Court's application of strict liability in environmental

torts, see Department of Transportation v. PSC Resources, Inc.,

(N.J. Super. Ct. Law Div. 1980), and apply product

line strict liability to this environmental tort.

           The district court in this case "predicted" that the

New Jersey Supreme Court would apply the Ramirez successor

corporation strict liability product line doctrine to strict

liability environmental actions.    Since this is an issue of first

impression in New Jersey, the district court truly was

"predicting" the result.    Hence, if permitted to prognosticate, I

too would hold that the New Jersey Supreme Court would apply the

doctrine of strict liability to this environmental case and thus

affirm the district court.    However, while I believe that the

decision to apply the doctrine to environmental cases should be

left in the hands or the highest state court, there is no method

to certify such a question to the court.

           C.   The Restraint of City of Philadelphia
           Despite my firm conviction that the district court

should be affirmed, I am constrained by the philosophical tenet
of this court in City of Philadelphia, supra, which I respect and

adopt.   We are not appointed to be activists but to interpret and

apply the law as we see it.   However, I believe that a dangerous

precedent will be set if this court continues down the path which

prohibits direct application of state doctrines.   Primarily, the

removal and jurisdictional statutes will be used as a sword to

prevent final resolution of a state claim.   For example, where a

defendant realizes that the state's highest court has not ruled

on their specific factual circumstance, but has developed a

doctrine that might be adverse to that defendant, then the

defendant will most assuredly remove the case to federal court

knowing that, on appeal, the circuit court will grant summary

judgment in their favor based on City of Philadelphia.    The

result will create an atmosphere where state rights will never be

vindicated and cases will not proceed to their ultimate

conclusion.

          Accordingly and reluctantly, I join the majority

remanding this matter to the district court for entry of a

summary judgment in favor of Kerr-McGee.