Dusoe v. Mobil Oil Corp.
| Decision Date | 21 September 2001 |
| Docket Number | No. CIV. A. 99-40112-NMG.,CIV. A. 99-40112-NMG. |
| Citation | 167 F.Supp.2d 155 |
| Parties | David DUSOE and Joan Dusoe, Plaintiffs v. MOBIL OIL CORPORATION, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Raymonds J. Reed, Reed & Reed, Worcester, MA, for Plaintiffs.
Donald R. Frederico, Terry L. Wood, McDermott, Will & Emory, Boston, MA, Emily E. Smith-Lee, McDermott, Will & Emery, Boston, MA, Deborah E. Barnard, Ralph T. Lepore, III, Holland & Knight LLP, Boston, MA, for Defendant.
On May 14, 1999, plaintiffs David Dusoe and Joan Dusoe ("the Dusoes" or "the plaintiffs") filed a complaint in Worcester Superior Court for personal injuries and property damages arising out of a release of gasoline on December 20, 1968 ("the 1968 release") from a pipeline in Oxford, Massachusetts belonging to defendant Mobil Oil Corporation ("Mobil"). The plaintiffs have resided at 64 Joe Jenny Road since 1992. The Mobil pipeline is located approximately one thousand (1,000) feet east of the plaintiffs' property.
The complaint contends that Mobil did not clean up the 1968 release of approximately 27,000 gallons of petroleum product and that the release contaminated the plaintiffs' property and its underground water supply. As a result of the 1968 release, the plaintiffs allege that their property has lost value and that they have been personally injured from ingesting and dermally absorbing the contaminated well water and from inhaling air contaminated from vaporization of the released product.
The complaint asserts claims for negligence, trespass, nuisance, violation of M.G.L. c. 21E, § 5, strict liability and negligent and intentional infliction of emotional distress. On June 15, 1999, Mobil filed a notice of removal to this Court on the basis of diversity jurisdiction. At all times relevant to the action, Mobil states that the plaintiffs were residents of Massachusetts and that Mobil, a New York corporation, has its principal place of business in Fairfax, Virginia.
Currently pending before this Court are motions by Mobil (1) for Summary Judgment, (2) to Strike Materials Submitted in Plaintiffs' Opposition to Mobil's Motion for Summary Judgment and (3) to Exclude Expert Testimony.
Mobil moves, pursuant to Fed.R.Civ.P. 56, for summary judgment in its favor on all the plaintiffs' claims. Mobil contends that there is no evidence that the plaintiffs' water supply or soil have ever been contaminated and that such evidence is essential to each of the plaintiffs' claims.
In accord with Fed.R.Civ.P. 56(c), summary judgment must be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." See Fed. R.Civ.P. 56(c); Magee v. United States, 121 F.3d 1, 3 (1st Cir.1997). A genuine issue is one which a reasonable fact finder could resolve in favor of the nonmoving party. Id. Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (internal quotations omitted).
Once the moving party has demonstrated that no genuine issue of material fact exists, the burden of production shifts to the nonmovant to contradict the demonstration by coming "forward with specific provable facts which establish that there is a triable issue." Matos v. Davila, 135 F.3d 182, 185 (1st Cir.1998). The role of a summary judgment motion in general "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995).
The primary chemical constituents of gasoline are known as benzene, toluene, ethylbenzene and xylenes ("BTEX"). A method for testing water samples used in tests conducted in the current litigation can detect BTEX constituents at levels as low as 0.5 parts per billion. That is, if a water sample contained 0.5 parts per billion ("ppb") of benzene, for every one billion grams of water in the source from which the sample was taken, there would be one half of a gram of benzene. If no benzene was detected in the sample, the laboratory report would reflect an "ND" or "Non-Detect" result. Such a result would indicate that no contamination was present in the sample or that the contaminant was present at a concentration of less than the level of detection, in this case, 0.5 parts per billion. The Massachusetts drinking water standard for benzene requires less than 5 ppb.
On April 26, 1996, in response to complaints to the Massachusetts Department of Environmental Protection ("DEP") of a strange odor in the drinking water at 58 Joe Jenny Road, Oxford, Massachusetts, the drinking water well for that property was tested and the sample revealed the presence of BTEX constituents ranging from 30.3 ppb of benzene, 2.7 ppb of toluene, 2.1 ppb of ethylbenzene and 2.4 ppb of xylene. On April 29, 1996, a test of samples at that same site revealed the presence of benzene at 56.8 to 60.6 ppb and ethylbenzene at 6.3 to 6.4 ppb.
As a result of those tests, the DEP and the Oxford Board of Health conducted an investigation of the area. No signs of stressed vegetation or other indications of a release were observed. A survey of the area indicated that it was all residential, or undeveloped and heavily wooded, and that no known uses or other businesses associated with large volumes of petroleum, other than the Mobil pipeline, existed within a mile radius of the contaminated well at 58 Joe Jenny Road.
Because the Mobil pipeline was the potential source for this contamination, the DEP contacted Mobil's office of U.S. Supply and Logistics in Riverside, Rhode Island in May, 1996. Mobil verified that no current sudden releases were occurring from the pipeline at that time. When questioned regarding any past releases, the Mobil representative stated he knew of none.
Between April and June of 1996, bedrock drinking water wells of ten other residents within a quarter of a mile of 58 Joe Jenny Road were sampled. Of those, only one property, at 60 Joe Jenny Road, showed any sign of contamination (11.0 ppb of benzene).
Soil samples were eventually taken of 58 Joe Jenny Road and revealed no benzene and very low levels of toluene (1.5 ppb), ethylbenzene (1.6 ppb) and xylene (2.6 to 9.0 ppb). The DEP determined that this contamination was the result of contaminated groundwater being pumped to the surface as part of normal well development and should not be viewed as the source of the contamination of the private well. No other indication of an on-site source of contamination was found on that property.
In June, 1997, the DEP was contacted by a former area resident and by a Town of Oxford employee with information regarding the sudden release of petroleum from the Mobil pipeline in the area of Joe Jenny Road. According to their statements, such a release likely did occur in the late 1960s or early 1970s.
Based on that information, in July, 1997, the DEP issued Mobil a Request for Information regarding the section of the pipeline within a one mile radius of the contaminated wells. On September, 12, 1997 Mobil confirmed that it was the owner of the subject pipeline and that on December 20, 1968, approximately 27,000 gallons of gasoline were released from a hole in that pipeline caused by excess pressure. On September 26, 1997, the DEP issued a Notice of Responsibility ("N.O.R.") to Mobil with respect to the private well contamination in the area. That N.O.R. states that there was no indication, subsequent to the 1968 release, that any of the released gasoline was recovered or that Mobil conducted any environmental cleanup actions.
In late 1997, the water well located at 66 Joe Jenny Road was tested for petroleum contaminants. That test revealed the presence of 1.3 ppb of methyl tertiarybutyl ether ("MTBE"). MTBE is a gasoline additive that enhances octane and was first utilized in gasoline in the 1980s. Undated test results of 58 and 60 Joe Jenny Road revealed MTBE levels of 0.7 and 38 ug/l (micrograms per liter), respectively.1
According to a 1997 Fact Sheet issued by the United States Environmental Protection Agency entitled "Drinking Water Advisory: Consumer Acceptability Advice and Health Effects Analysis on [MTBE]" ("the Fact Sheet"), there is no data on the effects on humans of drinking MTBE-contaminated water and based on the limited sampling available at the time, "most concentrations at which MTBE has been found in drinking water sources are unlikely to cause adverse health effects." However, the Fact Sheet points out that MTBE has a very unpleasant taste and odor and can make contaminated drinking water unacceptable to the public when MTBE levels of 20-40 ug/l are exceeded. According to a January 26, 1998 letter from a Mobil Environmental Project Manager to the resident at 66 Joe Jenny Road (included as an exhibit to one of the plaintiffs' affidavits), the Massachusetts drinking water standard for MTBE was 70 ppb.
In January, 2000, the Massachusetts Department of Public Health ("DPH"), under cooperative agreement with the Agency for Toxic Substances Disease Registry ("ATSDR"), completed a Health Consultation for the Joe Jenny Road neighborhood ("the DPH Report"). The DPH concluded that the maximum possible exposures for those residents who had actual contamination in their wells was not expected to result in adverse health effect. See Mobil's Memorandum in Support of Motion for Summary Judgment, Exhibit 4, The DPH Report and Cover Letter. The DPH Report did note that
[D]ue to the limited amount of sampling data ... and incomplete groundwater...
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