In re Methyl Tertiary Butyl Ether Litigation
| Decision Date | 14 July 2009 |
| Docket Number | No. 00 MDL 1898(SAS).,No. 04 Civ. 3417(SAS).,00 MDL 1898(SAS).,04 Civ. 3417(SAS). |
| Parties | In re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This Document Relates to: City of New York, et al., Plaintiffs, v. Exxon Mobil Corporation, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robin Greenwald, Esq., Robert Gordon, Esq., Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs.
Victor M. Sher, Esq., Todd E. Robins, Esq., Joshua G. Stein, Esq., Nicholas G Campins, Esq., Marnie E. Riddle, Esq., Sher Leff LLP, San Francisco, CA, Susan Amron, Daniel Greene, Assistant Corporation Counsel, New York, NY, for Plaintiff City of New York.
Peter John Sacripanti, Esq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, NY, for Defendants and Counsel for Exxon Mobil Corporation.
In my June 9, 2009 Opinion, I held that the City of New York ("the City") may seek punitive damages for claims that proceed under the commingled product theory.1 I also determined that a defendant's liability resulting from its contribution to a defective commingled product is merely several, as opposed to joint and several.2 However I did not decide "which party bears the burden of proof for apportionment" of liability for such claims.3 The City now moves for a ruling in limine that defendant bears this burden and defendant ExxonMobil Corporation ("Exxon")—the only remaining non-settling defendant—argues that this burden should be placed on the City.4 The City also moves in limine for a ruling that defendant should be held jointly and severally liable for the City's damages. For the reasons that follow, I once again hold that liability is several only, and I now hold that defendant bears the burden of establishing a reasonable basis for apportioning liability.
The Federal Rules of Evidence favor the admission of all relevant evidence.5 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."6 A district court will "exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds."7 "Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context."8 Moreover, a court's ruling regarding a motion in limine " "9
The rules of causation described in the Second Restatement of Torts are used to establish whether a tortfeasor's acts are a legally sufficient "cause" to support joint and several liability.12 Under those rules, "the actor's negligent conduct is a legal cause of harm to another if ... his conduct is a substantial factor in bringing about the harm."13 "The actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent," unless the conduct "itself is sufficient to bring about harm to another."14 "What sets the commingled theory apart from the traditional theory of causation," by contrast, "is that the [plaintiff] need not show that each individual defendant's contribution, taken alone, would have caused an injury."15 Rather, "the [plaintiff] need only show that the ... defendant's MTBE contributed to th[e] commingled product" that caused the injury.16
When the commingled product theory was first introduced, this Court discussed—by way of example—a situation in which ten manufacturers each supplied ten percent of the gas to an underground storage tank that leaked and contaminated plaintiffs property.17 In such a scenario, "defendants would be severally liable because joint and several liability is unjust where `there [are] so large a number of actors, each of whom contribute[d] a relatively small and insignificant part of the total harm, that the application of the rule [of joint and several liability] may cause disproportionate hardship to defendants.'"18
Under the commingled product theory, liability is "apportioned by proof of a defendant's share of the market at the time of the injury.'"19 "`A defendant must be able to exculpate itself by proving that its product was not present at the relevant time or in the relevant place, and therefore could not be part of the commingled or blended product.'"20 "[A]pportionment should be based, as near as possible, on each defendant's share of the actual market that supplied gasoline to the commingled product that contaminated the City's wells."21
"[T]he commingled product theory adopts, with slight adjustments, the concurrent wrongdoing theory of liability and the market-share theory of apportioning damages."22 Under the market share theory, the burden of proving that a defendant's conduct did not contribute to causing the injury is shifted to the defendants. However, courts have taken various approaches to allocating the burden of apportionment among those defendants who fail to exculpate themselves and therefore remain as defendants whose conduct presumably contributed to the injury. "In some states, a plaintiff must prove the actual market share of each defendant."23 A recent California decision assigned the burden to the plaintiffs because the market share theory marks an "extraordinary departure from conventional tort law doctrine .. of [proving] causation."24 Given that defendants may be held liable under the market share theory even though they likely did not harm a particular plaintiff, the court explained the need for caution when attributing market share, asserting that "it serves no justice to fashion rules which allow responsible parties to escape liability while demanding [that] others ... compensate [plaintiff for] a loss they did not create."25
Other states place the burden of proving market share on defendants.26 When the burden is on defendants,
[Many] states impose a rebuttable presumption that all defendants have an equal market share, totaling one hundred percent. Each defendant may rebut this presumption by showing that its actual market share was less. The liability of defendants that cannot prove their actual market share then inflates so plaintiff receives a total recovery.27
The Third Restatement of Torts provides that "when, under applicable law, a person is severally liable to an injured person for an indivisible injury, the injured person may recover only the severally liable person's comparative-responsibility share of the injured person's damages."28 An injury is divisible, however, "[w]hen damages for an injury can be divided by causation."29 "A party alleging that damages are divisible has the burden to prove that they are divisible."30 "The burden to prove the magnitude of each part is on the party who seeks division."31
The allocation of the burden of proof can create inequities for either party in a case. On the one hand, "[s]hifting the burden of proof to defendants to prove the magnitude of the parts may be unfair to defendants because it can impose full liability on a defendant who caused only part of the damages."32 On the other hand, placing the burden of proof on plaintiff could unfairly deny the plaintiff any recovery simply because plaintiff is unable to carry the burden of apportionment. The principal rational for "shifting the burden of proof to the defendant" is that the burden should be placed "on culpable rather than innocent parties."33 A second rational is that defendants are often in a better position to know their relative contribution to the harm than are plaintiffs.34 In order to balance these concerns, the most "attractive solution is to place the burden of proof on the party seeking to avoid responsibility for the entire injury, along with relaxing the burden of production."35
Ordinarily apportionment is proper when "there is a reasonable basis for determining the contribution of each cause to a single harm."36 However "[w]hen two or more causes produce a single, indivisible harm, `courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.'"37 The Third Restatement of Torts states that the burden of production should be low in order to permit "the factfinder [to] divide damages based on the available evidence."38
The Supreme Court recently adopted this approach in a CERCLA action.39 In Burlington Northern—discussed above-the district court apportioned nine percent of the liability for a spill to a defendant even though neither defendant nor plaintiff argued that the injury was divisible.40 The Court of Appeals reversed on the ground that the finder of fact lacked sufficient evidence to permit a reasonable apportionment of liability.41 The Supreme Court reversed the Court of Appeals and upheld the district court's apportionment decision "despite the parties' failure to assist the court in linking the...
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Deconstructing Construction Defect Fault Allocation and Damages Apportionment-part Ii
...of the wrong itself, for which the defendant is responsible). See also In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 643 F.Supp.2d 461, 469 (S.D.N.Y. 2009) (burden of providing reasonable basis for damages allotment usually on culpable party, particularly where that party is......