In re Methyl Tertiary Butyl Ether ("Mtbe") Prod.

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Shira A. Scheindlin
• Citation: In re Methyl Tertiary Butyl Ether ("Mtbe") Prod., 591 F.Supp.2d 259 (S.D. N.Y. 2008)
• Decision Date: 13 May 2008
• Docket Number: Master File No. 1:00-1898.,MDL No. 1358 (SAS). No. M21-88.
• Parties: In re: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: County of Suffolk et al. v. Amerada Hess Corp. et al., 04 Civ. 5424.

591 F.Supp.2d 259

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

Master File No. 1:00-1898.

MDL No. 1358 (SAS). No. M21-88.

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

May 13, 2008.

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Robin Greenwald, Esq., Robert Gordon, Esq., Steven J. German, Esq., Weitz & Luxenberg, P.C., New York, NY, for Plaintiffs.

Peter John Sacripanti, Esq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, NY, for Defendants and Counsel for Defendant ExxonMobil.

Alan J. Hoffman, Esq., Jeffrey S. Moller, Esq., Jerry D. Bernstein, Esq., Blank Rome LLP, New York, NY, for Defendants Lyondell Chemical Company and Equistar Chemicals LP.

Robert F. Redmond, Jr., Esq., Clement D. Carter, Esq., Gray B. Broughton, Esq., Williams Mullen, P.C., Richmond, VA, for Defendant Giant Yorktown, Inc.

M. Coy Connelly, Esq., Julia K. Huff, Esq., Amy E. Parker, Esq., Bracewell & Giuliani LLP, Houston, TX, for Defendant TOTAL Petrochemicals.

Susan Millington Campbell, Esq., Michael D. Tiger, Esq., Maria Termini, Esq., Hughes Hubbard & Reed LLP, New York, NY, for Defendant Irving Oil Limited and Irving Oil Corporation.

Ben M. Krowicki, Esq., Cynthia M. Guizzetti, Esq., Bingham McCutchen LLP, Hartford, CT, for Defendant Crown Central LLC.

John McGahren, Esq., Daniel F. Mulvihill, Esq., Patton Boggs LLP, Newark, NJ, for Defendant Getty Properties Corporation.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

Methyl tertiary butyl ether ("MTBE") is a gasoline additive that has contaminated groundwater throughout the United States, primarily as a result of leaking underground storage tanks ("USTs"). Because MTBE "dissolves and spreads readily in the groundwater ... resists biodegradation, and is difficult and costly to remove from groundwater," it "has caused widespread and serious contamination of the nation's drinking water supplies."¹ Among those contaminated water supplies are the wells of plaintiffs Suffolk County Water Authority ("SCWA") and the County of Suffolk, who supply drinking water to over one million people in Suffolk County from a large aquifer system that lies beneath the ground in Long Island, New York.² MTBE has been detected in over one hundred fifty of SCWA's nearly five hundred active wells, and scientists predict that other wells are threatened by contamination.³

Seeking compensatory and punitive damages, as well as other remedies, plaintiffs sued various companies in the oil industry that have manufactured, refined, marketed or distributed MTBE or gasoline containing MTBE.⁴ In their complaint, plaintiffs assert claims for (1) violation of Section 8(e) of the Toxic Substances Control Act ("TSCA"); (2) public nuisance; (3) strict liability for design defect and/or defective product; (4) failure to warn; (5) negligence; (6) private nuisance; (7) trespass; and (8) violation of the New York Navigation Law.⁵ To facilitate the jury trial of the numerous and complicated factual issues raised in the case, I ordered a bellwether trial of claims related to ten wells contaminated with MTBE. The number of wells that will be considered at trial has since grown to eighteen wells.⁶

The parties agree that all of the focus wells have been contaminated with MTBE. The issue in dispute is one of causation: Where did the MTBE in each well come from, and who bears the responsibility for its presence? Due to the unique and complicated facts of this case, the means of proving causation has been a highly contested issue.⁷ In particular, plaintiffs face two independent obstacles in identifying which defendant's product caused their injuries.

The first obstacle is that many of the spills and leaks of gasoline that may have caused contamination of plaintiffs' well water occurred long ago and beneath the ground. From these spills and leaks, MTBE then migrated toward the wells through water flowing beneath the ground. In many cases it is difficult for plaintiffs to identify the gasoline releases from which the MTBE contamination originated (i.e., the leaking UST at a particular retailer).

The second obstacle is that the gasoline distribution system in the United States requires manufacturers to mix their products together for transportation in a common pipeline system. Because gasoline is commingled, it is impossible to identify with certainty the refiners of the gasoline released from a leaking UST.

Defendants have brought two omnibus motions for summary judgment on plaintiffs' tort claims based on inability to prove causation. The first motion argues that for half of the focus wells, plaintiffs cannot prove that any particular leaking UST at a retail gas station caused the contamination of the well, and thus the companies that own those retail stations cannot be liable. Defendants further argue in that motion that the companies that manufacture, market or distribute MTBE or gasoline containing MTBE should not be liable because plaintiffs cannot prove their role in causing the harm.⁸ The second motion argues that where plaintiffs can identify the source of contamination in a well, only the owners and/or operators of the stations named by plaintiffs' expert as the source of contamination can be liable.⁹

In addition, defendants filed a separate motion for partial summary judgment as to the Navigation Law claims, again arguing that only those companies whose spills were found by plaintiffs' expert to have caused contamination can be liable for such claims.¹⁰

Finally, a small subset of defendants filed individual motions for summary judgment, arguing that for various reasons, their gasoline or MTBE could not have caused plaintiffs' injuries. These companies include: (1) Lyondell Chemical Company ("Lyondell") and Equistar Chemicals LP ("Equistar"), (2) Crown Central LLC ("Crown"), (3) Getty Properties Corp. ("Getty"), (4) Giant Yorktown Inc. ("Giant"), (5) Irving Oil Limited and Irving Oil Corporation ("Irving"), and (6) Total Petrochemicals USA, Inc. ("Total").¹¹

For the reasons below, defendants' motions are granted in part and denied in part.

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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."¹² An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"<sup>13</sup> A fact is material when it "`might affect the outcome of the suit under the governing law.'"¹⁴ "It is the movant's burden to show that no genuine factual dispute exists."¹⁵

In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it must do more than show that there is "`some metaphysical doubt as to the material facts,'"<sup>16</sup> and it "may not rely on conclusory allegations or unsubstantiated speculation.'"<sup>17</sup> However, "`all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"¹⁸

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.¹⁹ However, "[i]t is a settled rule that lc]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'"²⁰ Summary judgment is therefore inappropriate "`if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.'"²¹

III. CAUSATION

The requirement that the defendant's actions must be the cause of the plaintiff's injury is common in the law and applies to all of plaintiffs' claims other than TSCA.²² At issue here is whether plaintiffs' evidence could support a reasonable jury's finding that defendants caused the alleged harm under either traditional or alternative theories of causation, and in what circumstances is it appropriate to allow plaintiffs to prove causation through the use of alternative theories of liability.

A. Traditional and Alternative Methods of Proving Causation

Tort liability usually depends on proof that a defendant's conduct was both the factual cause and the proximate cause of a plaintiff s injury.²³ For example, in a negligence claim, "[t]o carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury."²⁴ The substantial factor standard for causation, adopted in New York, recognizes that often many acts can be said to have caused a particular injury, and requires only that defendant's actions be a substantial factor in producing the injury.²⁵ A plaintiff need not eliminate every other possible cause, and the fact "[t]hat another possible cause concurs with defendant's negligent act or omission to produce an injury does not relieve defendant from liability."²⁶

Plaintiffs usually bear the burden of proving causation, like every other element of a prima facie case, by a preponderance of the evidence. In other words, plaintiffs must show that it is more likely than not that the defendant's actions caused their injury. In addition, "identification of the exact defendant whose product injured the plaintiff is ... generally required."²⁷ "The identity of the manufacturer of a defective product may be established by circumstantial evidence."²⁸ Such evidence cannot be "speculative or conjectural," it must be reasonably probable that it was defendant's...