In re Methyl Tertiary Butyl Ether ("Mtbe")

• Decision Date: 07 April 2006
• Docket Number: No. MDL 1358(SAS).,No. M 21-88.,No. 1:00-1898.,1:00-1898.,M 21-88.,MDL 1358(SAS).
• Citation: 457 F.Supp.2d 298
• Parties: In re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: Hope Koch, et al. v. John R. Hicks, et al., 05 Civ. 5745(SAS).
• Court: U.S. District Court — Southern District of New York

457 F.Supp.2d 298

In re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATIONThis document relates to: Hope Koch, et al. v. John R. Hicks, et al., 05 Civ. 5745(SAS).

No. 1:00-1898.

No. M 21-88.

No. MDL 1358(SAS).

United States District Court, S.D. New York.

April 7, 2006.

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Mary V. McNamara-Koch, Esq., Scott D. Shellenberger, Esq., Karyn S. Bergmann, Esq., Law Offices of Peter G. Angelos, P.C., Charles J. Piven, Esq., Marshall N. Perkins, Esq., Law Offices of Charles J. Piven, P.A., Lon Engel, Esq., Engel & Engel, P.A., Baltimore, MD, for Plaintiffs.

Andrew Gendron, Esq., Venable LLP, Baltimore, MD, for DefendantExxon Mobil Corporation.

Paul W. Ishak, Esq., Stark and Keenan, P.A., Bel Air, MD, for DefendantJohn R. Hicks.

Robin Greenwald, Esq., Robert Gordon, Esq., C. Sanders McNew, Esq., Weitz & Luxenberg, P.C., New York City, Liaison Counsel for Plaintiffs.

Peter John Sacripanti, Esq., James A. Pardo, Esq., Stephen J. Riccardulli, Esq., McDermott, Will & Emery LLP, New York City, Liaison Counsel for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

I.INTRODUCTION

In this consolidated multi-district litigation, plaintiffs seek relief from defendants' alleged contamination, or threatened contamination, of groundwater with the gasoline additive methyl tertiary butyl ether ("MTBE").The parties have already engaged in extensive motion practice, and familiarity with the Court's previous opinions is assumed.¹This opinion relates only to Hope Koch, et al. v. John R. Hicks, et al,05 Civ. 5745.

Hope and Frank Koch, Robert and Gail Kurtz, Alora and Drake M. Roche, Jennifer and Timothy Stevens, residents of Fallston Maryland, bring this putative class action in Maryland against John R. Hicks² and Exxon Mobil Corporation³("Exxon") alleging state law claims of (1) public nuisance, (2) private nuisance, (3) trespass to property, (4) negligence, (5) strict liability for an abnormally dangerous activity, and

(6) medical monitoring that would require defendants to conduct monitoring and testing of plaintiffs for early detection and treatment of potential diseases caused by exposure to MTBE.⁴The claims arise from the alleged contamination of plaintiffs' water supply due to unsafe storage and leakage from defendants' underground storage tanks at the Crossroads Exxon gasoline station ("Crossroads Exxon").⁵Exxon and Hicks have moved to dismiss this action.For the following reasons, those motions are denied.

II.LEGAL STANDARD

A.Prediction of State Law

Plaintiffs bring state law claims under the law of Maryland."Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state....There is no federal general common law."⁶

In the absence of a definitive ruling on a particular issue by the highest court of a state, however, this Court must predict what that court would decide.States have the primary responsibility to construe their own laws.⁷In making a prediction of state law a court must determine what the state's highest court would find if presented with the same issue.⁸This Court previously explained that a plaintiff is entitled to the same treatment it would receive in state court—no more, and no less.⁹

B.Rule 12(b)(6)

A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.'"<sup>10</sup>At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'"

The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."¹¹When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiffs favor.¹²Although the plaintiffs allegations are taken as true, the claim may still fail as a matter of law if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief, or if the claim is not legally feasible.¹³Accordingly, a claim can only be dismissed if "`no relief could be granted under any set of facts that could be proved consistent with the allegations.'"¹⁴

C.Rules 8and12(e)

Rule 8(a) of the Federal Rules of Civil Procedure requires that the plaintiff must provide "a short and plain statement of the claim showing that the pleader is entitled to relief."Rule 8(a) does not require "a plaintiff to plead the legal theory facts, or elements underlying his claim."¹⁵"To comply with Rule 8, plaintiffs need not provide anything more than sufficient notice to permit defendant to file an answer."¹⁶

The only requirement is that a complaint allege the "bare minimum facts necessary to put the defendant on notice of the claim so that [it] can file an answer."¹⁷Fair notice is "`that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'"¹⁸This notice pleading standard "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims."¹⁹If a party contends that a pleading nonetheless "is so vague or ambiguous that [it] cannot reasonably be required to frame a responsive pleading"the party is not left without a remedy, as the party"may move for a more definite statement" before responding to the pleading.²⁰

D.Standing

Constitutional standing "is the threshold question in every federal case, determining the power of the court to entertain the suit."²¹There are three constitutional requirements that plaintiffs must satisfy in order to establish standing: (1) injury-infact—an injury that is "concrete and particularized" and is "actual or imminent, not conjectural or hypothetical,"(2) an injury that is fairly traceable to the challenged action, and (3) an injury that will likely be redressed by a favorable ruling of the court.²²

Mere "[allegations of possible future injury do not satisfy the requirements of Art[icle] III."²³However, an allegation of a threatened injury in the form of an increased risk of future injury that is "certainly impending" is sufficient to establish an injury-in-fact.²⁴The Second Circuit has further explained that in enhanced risk plaintiff must allege a "credible threat of harm."²⁵The "probability of harm which a plaintiff must demonstrate in order to allege a cognizable injury-in-fact logically varies with the severity of the probable harm."²⁶Distinguishing between a threatened injury satisfying the injury-in-fact requirement and a speculative or hypothetical injury is a matter of degree and each case must be considered on an individual basis.²⁷

Although the plaintiffs bear the burden of establishing these elements, the determination of whether Article III standing exists must comport with the "manner and degree of evidence required at the successive stages of the litigation."²⁸Thus, when standing is challenged on the basis of the pleadings, a court is required to "`accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.' "²⁹At the pleading stage, an "[a]llegation of a credible risk may be sufficient" without "further factual confirmation or quantification of the precise risk" to establish standing.³⁰

III.DISCUSSION

A.Exxon's Motion to Dismiss³¹

1.Standing for Alora and Drake Roche

Alora and Drake Roche alleged that although the water on their property "has not tested positive for MTBE, the adjacent properties to the east and west have detections of MTBE."³²Exxon argues that the Roches lack standing because they do not have any MTBE in their wells.Exxon claims that plaintiffs have not alleged that MTBE "would be detected at actionable levels sufficient to impair their interests, as opposed to non-actionable levels below federal and state law."³³Exxon claims plaintiffs cannot allege that the harm they face is "death, deadly disease, or any disease at all."³⁴Exxon argues that there is only a "mere possibility that MTBE may be carcinogenic" and that this "risk of harm fails to `rise above mere conjecture.'"³⁵

Plaintiffs counter that they have alleged threatened harm in the form of an increased risk of future injury.

This Court characterized the standing issue in a similar MTBE case as a question of whether plaintiffs' allegations are sufficient to show that plaintiffs are faced with a present threat of imminent harm.³⁶In that case, some plaintiffs had tested their wells but had not found any MTBE, and other plaintiffs had not tested their wells for the presence of MTBE.There, the "general allegations concerning the chemical characteristics of MTBE and the widespread MTBE contamination of groundwater throughout the country" were found insufficient to establish a "present threat of imminent harm" as to both groups of plaintiffs.³⁷This Court noted that the first group of plaintiffs, from Madison County, Illinois, had not presented statistics of MTBE detection rates for private wells in the county or even state; that Madison County was not a participant in the reformulated gas program (a congressional program whereby gasoline companies were required to sell oxygenated gasoline); and that ethanol was the "primary oxygenate used in the Midwest."³⁸The other group of plaintiffs, from Dutchess County, New York, did not allege that they were "proximately located to, or had a direct connection to, an alleged area of contamination on or near and identified release site."³⁹

Unlike plaintiffs in MTBE I,...