In re Methyl Tertiary Butyl Ether (\"mtbe\") Products Liab. Litig.. This Document Relates To: City
| Citation | 739 F.Supp.2d 576 |
| Decision Date | 07 September 2010 |
| Docket Number | Nos. 00 Civ. 1898 (SAS),Nos. 04 Civ. 3417 (SAS),s. 00 Civ. 1898 (SAS),s. 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, et al., Defendants. |
| 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 Exxon Mobil Corporation.
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, which is a product formed by the natural degradation of MTBE in water. Plaintiff, the City of New York ("City"),1 filed an action against various defendants—including the only defendants remaining in this case, ExxonMobil Corporation, ExxonMobil Oil Corporation, and Mobil Corporation (collectively, "ExxonMobil")—in 2003. Because of the size and complexity of this case, five of the dozens of wells at issue were selected for a "bellwether" trial. On October 19, 2009, after an eleven week trial, a jury awarded the City approximately one hundred and four million dollars. ExxonMobil has now renewed its motion for judgment as a matter of law on the City's claims and moved, in the alternative, for a new trial and/or remittitur.
II. BACKGROUND
The City asserts both state law tort claims and a federal law claim under the Toxic Substances Control Act ("TSCA") against ExxonMobil. However, because the TSCA claim is not specific to the five focus wells at issue in this case, only the state claims were tried. Although the trial was originally divided into four phases, because I dismissed the City's punitive damages claim as a matter of law,2 only three phases were tried.
All five focus wells are located within an uncompleted facility in Jamaica, Queens known as "Station 6" that is not presently, and has never been, used to distribute water to New York City residents. Because the City is not presently using the Station 6 wells, the jury was asked in Phase I to determine whether the City intended to use Station 6 in the future. Specifically, the jury was asked (1) "whether the City has proven by a preponderance of the evidence that it intends in good faith to begin construction of the Station 6 facility within the next 15 years" 3 and (2) "whether the City has proven by a preponderance of the evidence that it intends in good faith to use the water from the Station 6 wells within the next 15 to 20 years, either to supply drinking water to its residents or to serve as a backup source of drinking water in case of shortage of supply." 4 The jury answered "yes" to both questions, but determined that the City only intends to use the Station 6 wells as a backup source of drinking water.5
In Phase II, the jury was asked to make several findings relating to whether there will be any MTBE in the Station 6 wells if and when the City begins to use them as a backup source of water. These interrogatories were modeled around a series of rulings I made prior to trial. First, the City is not injured by the mere presence of MTBE in the groundwater. Instead, "the City is injured by a concentration of MTBE in the groundwater [only] if a reasonable water provider would take action to monitor, test and/or treat groundwatercontaining that level of MTBE." 6 New York state has set a Maximum Contaminant Level ("MCL") for MTBE in drinking water of ten parts per billion ("ppb").7 As such, the City is injured as a matter of law when the contamination in the combined outflow of the Station 6 wells exceeds ten ppb. If, however, the concentration level in the combined outflow of the Station 6 wells is at or below ten ppb, whether the City has suffered an injury is a question of fact properly decided by the jury.8
Second, although the sufficiency of the City's injury is measured by the amount of MTBE in the combined outflow of the Station 6 wells, the location of that injury is the groundwater that will be drawn into the Station 6 wells when they begin operation.9 This area is known as the "capture zone" of the Station 6 wells. Thus, "[if] the City can show that its wells will become injured immediately upon turning them on," i.e., that MTBE is within the Station 6 capture zone, "it need not go through the curious exercise of turning the wells on to injure itself." 10
The jury was asked two questions corresponding to these holdings. It was first asked "whether the City has proven, by a fair preponderance of the credible evidence, that MTBE will be in the groundwater of the capture zone of the Station 6 wells when they being operating as a backup source of drinking water." 11 It was then asked "at what peak level MTBE will be found in the combined outflow of the Station 6 wells and when that will occur." 12 In answering the latter question, the jury was directed to select one of several concentration ranges: less than one ppb; one to three ppb; three to five ppb; five to ten ppb; or more than ten ppb.13
The City introduced the testimony of its hydrogeology expert, David Terry, to aid the jury in answering these questions. Terry explained to the jury that he had created two groundwater models designed to evaluate how MTBE will impact Station 6. He created a flow model, which shows "where the groundwater flows" and "how fast it moves," 14 to predict the likely size and shape of the Station 6 capture zone. This model relied on the "proposed pumping scenario"— e.g., the location of the pumping wells, the pumping rates of the wells, and the schedule on which the wells would pump—provided by New York City planners for both the Station 6 wells and other surrounding wells.15 As Terry explained,the size and shape of the Station 6 capture zone depends heavily on the assumed pumping scenario.16
Terry then described a transport model he had created to show "how [MTBE will] move through the groundwater system." 17 The transport model, which "rides on top of the flow model," 18 is used to make "numerical predictions" regarding the amount of MTBE that will enter the Station 6 wells. 19 As with the flow model, the transport model relies on specific assumptions— e.g., the locations of MTBE discharges and the levels of those discharges—that can greatly affect the model's results.20
Terry ran two different transport models based on varying assumptions. He ran an "Analysis 1" model—which used recorded MTBE concentrations from groundwater samples taken in 2004—to determine the peak concentration of MTBE in the Station 6 wells and the date of that peak concentration.21 On the basis of this analysis, he predicted that the maximum MTBE concentration in the combined outflow of the Station 6 wells would be thirty-five ppb in 2024. 22
Terry also ran an "Analysis 2" model using the same transport and flow models but with different assumptions about the amount of MTBE present in the groundwater. As Terry explained, the purpose of Analysis 2 was to see how long MTBE contamination will last at Station 6.23 To do so, Terry input three separate scenarios which assumed that the amount of MTBE gasoline spilled at each of twenty-two known release sites was on average fifty gallons, five hundred gallons or two thousand gallons.24 The peak concentration values predicted by Analysis 2 ranged from non-detect (fifty gallons per release) to six ppb (five hundred gallons per release) to seventeen to twenty-three ppb (two thousand gallons per release).25 Terry concluded that both the two thousand gallon and five hundred gallon scenarios would result in an "impact to Station 6." 26
After deliberating for two days at the close of Phase II, the jury informed the Court that it was unable to come to a unanimous decision on the second question—the level and timing of MTBE's peak concentration.27 Because the jury was instructedthat it should only reach the second question if it answered the first question affirmatively, I inquired as to whether the jury had reached a verdict on the first question. The jury informed me that it had reached a unanimous verdict on that question 28 and that it had found that MTBE would be present in the Station 6 capture zone when the City began to operate those wells.29 After taking the jury's partial verdict, I then gave the jury an Allen charge on the second question. 30 In summing up that charge, the jury was instructed:
Do not hesitate to reexamine your own views and to change your opinion if you are convinced you were wrong, but do not surrender your honest belief as to the weight and effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.31
Shortly afterward, the jury submitted another note to the Court—querying, inter alia, whether the second question could be restructured or rephrased. 32 In response, I instructed the jury that it did not need to select one of the concentration ranges provided by the Court and that it could choose any concentration level that it was able to agree upon unanimously.33 After further deliberation, the jury reached a verdict. It did not settle on any of the suggested ranges—finding instead that the concentration of MTBE in the combined outflow of the Station 6 wells will peak at ten ppb in 2033. 34
In Phase III, the jury answered specific interrogatories relating to: (1) whether the City is, or will be, injured by the MTBE that will be...
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