In re Methyl Tertiary Butyl Ether ("Mtbe")

• Citation: 447 F.Supp.2d 289
• Decision Date: 18 August 2006
• Docket Number: No. 1:00-1898.,No. M 21-88.,No. MDL 1358(SAS).,1:00-1898.,MDL 1358(SAS).,M 21-88.
• Court: U.S. District Court — Southern District of New York
• Parties: In re: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION This document relates to: County of Suffolk and Suffolk County Water Authority v. Amerada Hess Corp., et al., 04 Civ. 5424

447 F.Supp.2d 289

In re: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION This document relates to: County of Suffolk and Suffolk County Water Authority v. Amerada Hess Corp., et al., 04 Civ. 5424

No. 1:00-1898.

No. MDL 1358(SAS).

No. M 21-88.

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

August 18, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Carla M. Burke, Scott Summy, Baron & Budd, P.C., Dallas, TX, Robin Greenwald, Robert Gordon, C. Sanders McNew, Weitz & Luxenberg, P.C., New York City, for Plaintiffs.

Stuart A. Raphael, Hunton & Williams LLP, McLean, VA, Joseph C. Kearfott, George P. Sibley, III, Hunton & Williams LLP, Richmond VA, for Flint Hills Resources, LP and on behalf of defendants listed in Def. Mem. at ii.

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

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

In this consolidated multi-district litigation ("MDL"), plaintiffs seek relief from contamination, or threatened contamination, of groundwater from various defendants' use of the gasoline additive methyl tertiary butyl ether ("MTBE") and/or tertiary butyl alcohol ("TBA"), a product that is formed by the natural degradation of MTBE in water. The parties have already engaged in extensive motion practice, and familiarity with the Court's previous opinions is assumed.¹ The facts underlying this case are comprehensively set out in those opinions.²

A. Procedural History

County of Suffolk and Suffolk County Water Authority pled causes of action for public nuisance, design defect, failure to warn, negligence, private nuisance, trespass, civil conspiracy, violation of section 349 of the General Business Law, and violation of section 170 of the Navigation Law.³ Plaintiffs alleged that their property is contaminated with MTBE; MTBE is a fungible product; the manufacturers of the offending product cannot be identified; and defendants are manufacturers that together control a substantial share of the market for MTBE-containing gasoline.⁴ This Court denied defendants' motion to dismiss based on plaintiffs' alleged inability to prove proximate cause (i.e., which defendant's product caused their injury), finding these allegations sufficient to support the application of market share liability under New York law.⁵

In September, 2005, five months after the decision on the motion to dismiss, plaintiffs asked that any defendant who could prove that it should not be held liable under a market share theory, because it could not have been part of the relevant market, move for summary judgment (i.e., an exculpation motion).⁶ Defendants, in turn, argued that before they should be required to make motions to exculpate themselves from liability under a market share theory, plaintiffs should be required to show that they were entitled to use alternative theories of liability because they could not identify a specific responsible party that caused the alleged contamination.⁷ At a conference held on September 14, 2005, I agreed with defendants and directed that the parties engage in discovery with respect to four specific wells, two to be identified by plaintiffs, and two by defendants, with the goal of determining whether it was possible to identify the party or parties responsible for the alleged contamination.⁸ After three months of discovery, plaintiffs filed the instant motion, asserting, in essence, that because they could not identify the producer, refiner, or supplier of the MTBE-containing gasoline found in their wells, they should be allowed to sue all defendants under either a theory of concurrent wrongdoing⁹ or a theory of market share liability.¹⁰

The briefing of this issue has revealed a fundamental problem. Plaintiffs and defendants are arguing at cross-purposes. Plaintiffs assert that they are unable to identify the producer, refiner, or supplier of any of the MTBE found in the water supply of any particular well. Defendants, in turn, argue that while plaintiffs cannot identify the producer, refiner, or supplier of the MTBE found in the groundwater, they can identify the party or parties responsible for the contamination, either by identifying the owner of the contaminating product or the entity that by its negligence allowed the product to contaminate plaintiffs' wells. Thus, in defendants' view, even though the contaminant was a commingled product containing gasoline from many producers, the relevant question is whether plaintiffs can identify the source of the contamination.¹¹ Defendants argue that with respect to most, if not all, of the wells, plaintiffs can identify the source of an alleged contamination, and then trace the title of ownership of the product emanating from that source.

This fundamental distinction has caused much confusion, which it is now the Court's obligation to clarify. To some extent both sides are right. The proof submitted in the instant motion, through defendants' own expert,¹² reveals that the MTBE-containing gasoline cannot be deconstructed. In other words, once it is found in the ground it is impossible to know whose product is a part of an admittedly commingled gaseous substance. On the other hand, the contamination of some wells can be traced to a particular source. When that can be done, it is likely that responsible parties can be identified (i.e., the owner of the tank that leaked, or the truck that overturned, and possibly the supplier of the product in that tank). In that case, plaintiffs can sue the responsible party or parties, and if they can be made whole by such parties, then they have an available remedy and need not pursue an alternative theory of liability, created for the purpose of providing a remedy to plaintiffs who cannot identify a responsible party. When, however, plaintiffs cannot identify a source, or a "make-whole" defendant or defendants, then they should be permitted to proceed under an alternative theory of liability because they cannot identify the producer, refiner, or supplier of the MTBE-containing gasoline found in the well. Once it is determined—on a motion for summary judgment or at trial— that plaintiffs can rely on an alternative theory of liability, with respect to a remedy for injury to a particular well, then defendants will have the burden to show that they should be dismissed because they could not have been part of the relevant market (i.e., an "exculpation" motion). With this explanation, I turn to plaintiffs' instant motion.

B. Standard of Review

This motion is a procedural anomaly. Plaintiffs do not cite to any of the Federal Rules of Civil Procedure in their motion. Plaintiffs noted at oral argument that "the purpose of the motion ] was for the Court to give us some guidance that, yes, these are theories you may proceed on for trial."¹³ But, this Court may not issue advisory opinions.¹⁴ Plaintiffs' motion must be viewed as either a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) or a motion for partial summary judgment under Rule 56. As plaintiffs have submitted affidavits and other matters outside the pleadings, regardless of which Rule the Court chooses, the standard to be applied is the standard for summary judgment.¹⁵ In addition, because plaintiffs brought this motion, they are on notice that the theories they seek to apply may be rejected by the Court.

Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."¹⁶ An issue of fact is genuine if "the evidence is such that a jury could return a verdict for the nonmoving party."¹⁷ A fact is material when it "might affect the outcome of the suit under the governing law."¹⁸ The movant has the burden of demonstrating that no genuine issue of material fact exists.¹⁹

In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does "not rely on conclusory allegations or unsubstantiated speculation.'"²⁰ To do so, it must do more than show that there is "`metaphysical doubt as to the material facts.'"²¹ In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor.²²

The question, then, is whether plaintiffs are entitled to judgment as a matter of law allowing them to apply a particular causation theory. For the reasons described below, I conclude that plaintiffs may not rely on the theory of concurrent wrongdoing, with a limited exception discussed below.²³ Plaintiffs' remaining theories of collective liability—market share and commingled product theory of market share liability²⁴—cannot be ruled out as a matter of law. Plaintiffs are entitled to proceed with these theories unless and until defendants succeed on a motion for summary judgment prohibiting plaintiffs from doing so.²⁵

II. APPLICABLE LAW

This Court has already explained the theories of collective liability that apply to plaintiffs' claims in New York.²⁶ A brief outline of the theories is provided here.

A. Concurrent Wrongdoing

"When two or more tortfeasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable."²⁷ Concurrent wrongdoing allows joint and several liability because of the "injustice of allowing a proved wrongdoer who has in fact caused the harm to the plaintiff to escape liability merely because the harm which [it] has inflicted has combined with similar harm inflicted by other wrongdoers."²⁸ Further, where "one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor."²⁹

The theory applies only after a plaintiff proves (1) an...