In re Mtbe Products Liab. Lit.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation528 F.Supp.2d 303
Docket NumberNo. M21-88.,M21-88.
PartiesIn re METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: Tonneson, et al. v. Sunoco, Inc., et al., 03 Civ. 8284 Basso, et al. v. Sunoco, Inc., et al., 03 Civ. 9050. Master File No. 1:00-1898. MDL No. 1358 (SAS).
Decision Date29 November 2007

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

Michael D. Axline, Esq., Tracey L. O'Reilly, Esq., Miller, Axline & Sawyer, Sacramento, CA, John A. Sarcone III, Esq., The Sarcone Law Firm, White Plains, NY, for Plaintiffs.

Peter Hoffman, Esq., Katonah, NY, for Plaintiff Quattrochi.

Peter John Sacripanti, E sq., James A. Pardo, Esq., McDermott Will & Emery LLP, New York, NY, for Defendants and Counsel for ExxonMobil and on Behalf of Sunoco, Inc. and Sunoco, Inc. (R & M).

Daniel Krainin, Esq., Beveridge & Diamond, New York, NY, for Defendant Sunoco, Inc.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

The plaintiffs in these cases, residents and business owners in the hamlet of Fort Montgomery, New York, live in the vicinity of two gasoline stations found or suspected to have leaked gasoline into the soil. After water from plaintiffs' private wells tested positive for contamination with methyl tertiary butyl ether ("MTBE"), a chemical compound that certain companies began adding to gasoline in 1979,1 plaintiffs brought these actions against the gas station owners and suppliers. Plaintiffs claim that the MTBE contamination has lowered their property values, and their exposure to the contaminated water has caused them to fear that they or their family members will develop cancer or sustain other ill-health effects in the future.

Plaintiffs bring claims against the defendants for strict product liability, negligence, trespass, nuisance, intentional interference with the right to appropriate water resources, unfair competition under New York General Business Law, outrageous conduct causing the infliction of emotional distress, and violation of Article Twelve of the New York State Navigation Law under negligence, strict liability, and nuisance theories. In their negligence claim, plaintiffs seek relief for the negligent infliction of emotional distress as well as for the lost value of their property and lost income from commercial properties. Defendants now move for summary judgment on the emotional distress claims. For the reasons set out below, defendants' motion is granted in part and denied in part.

II. BACKGROUND

In 2000, testing revealed MTBE contamination in nearly fifty private residential wells in the hamlet of Fort Montgomery, New York. State and private investigations of the contamination centered around two gas stations near route 9W that runs through the small town as potential sources: a Sunoco station and a privately owned Mobil station. Plaintiffs' claims arise out of this series of events.

A. MTBE as a Gasoline Additive

Oil companies including Sunoco and ExxonMobil began discussing the widespread use of MTBE as a gasoline additive in the 1980's.2 At that time, officials within the companies warned that because MTBE dissolved easily in water and was less likely to bind to soil than other gasoline components, it could migrate quickly and pose groundwater contamination problems in case of spills.3

The health effects of MTBE remain in dispute today, and it is unclear on the record in these cases what defendants knew when they began to use MTBE in their gasoline. Several animal studies have shown that rats develop tumors and lesions after ingesting or inhaling MTBE;4 other studies purport to refute those results, or to show that any carcinogenicity in rats is not relevant to human carcinogenicity.5

B. MTBE Releases From the Sunoco Station

In October 1999, Sunoco removed an old underground fuel storage tank from its Fort Montgomery gas station and discovered certain petroleum contaminants in the soil and groundwater surrounding the tank.6 Due to the presence of the contaminants, the New York State Department of Environmental Conservation (NYSDEC) requested that Sunoco perform further environmental assessment of the site and in the Spring of, 2000, engineers detected MTBE in a well on the Sunoco station property.7 Engineers also analyzed data from a prior site assessment in 1994 and found that low levels of MTBE had been present at that time in a monitoring well on the station's property.8 Sunoco's gasoline lines and tanks tested "tight" for leaks immediately after MTBE was detected in 2000,9 although the gasoline delivery system may have leaked at other times.10

After detecting MTBE in the station well, Sunoco's consultants tested residential wells in the surrounding area, revealing MTBE concentrations in forty-one potable wells.11 In response to the testing results, Sunoco provided residents of the affected homes with bottled water and water treatment systems.12 The NYSDEC required Sunoco to initiate a subsurface investigation to "delineate both soil and groundwater contamination,"13 and later approved Sunoco's Remedial Action Plan for the station and a Residential Well Management Plan to monitor water contamination as part of an Order of Consent with the. Department.14 The Sunoco station closed in October 2002.15

C. MTBE Releases From the Mobil Station

ExxonMobil delivered gasoline to the Mobil station in Fort Montgomery from 1995 to 2001, but the station was independently owned by Leroy Favre under a franchise agreement.16 In the course of an NYSDEC investigation to determine the source of MTBE in groundwater in the station's vicinity, MTBE was detected in a well at the Mobil station.17

The NYSDEC did not consider the ExxonMobil corporation as a potentially responsible party for residential well contamination.18 Its report, however, concluded that the Mobil station "may have historically contributed to soil and/or groundwater contamination.... Furthermore ... concentrations of MTBE present in the shallow overburden has migrated to the deeper, bedrock aquifer. This migration appears to be responsible for historical impacts to the residential potable wells in the immediate vicinity of the station."19 ExxonMobil was the exclusive supplier of gasoline to the Fort Montgomery station and under the franchise agreement it routinely sent its inspectors to the station to check for leaks.20

D. Well Contamination and Plaintiffs' Exposure

A number of homes that obtain water from private wells are located within a quarter of a mile of the Sunoco station, and in close proximity to the Mobil station.21 Initial testing of residential wells near the Sunoco station in 2000 revealed MTBE at concentrations ranging from 1.0 to 230 parts per billion (ppb), with most levels found at that time falling below the NYSDEC standard for drinking water of 10 ppb.22 Residential wells between the Mobil station and a residence 200 feet southeast of the station all have had detections of MTBE between 2000 and 2002 as well, with high levels found in some homes, including the residences of Donna Boyce and Anna and Thomas Burley directly across the street from the station.23

After initial MTBE detections, Sunoco provided bottled water to the affected homes and installed water treatment systems in certain wells, as directed by the NYSDE C.24 It is unclear from the record whether Sunoco continues to provide bottled water today, or how many of plaintiffs' wells have treatment systems installed.

E. Emotional Distress

Plaintiffs allege that because they drank, bathed in, and otherwise were exposed to water containing MTBE, they fear that they and their family members may be at higher risk of developing cancer and other health problems. Two of the plaintiffsDonna Boyce and Edwina Gee—testified in depositions that their worry causes them to suffer physical symptoms.25 Boyce, who lives directly across the road from the Mobil Station,26 states that her anxiety about ingesting MTBE has caused her to suffer migraines and some insomnia.27 Gee also states that she has suffered insomnia due to her distress about MTBE contamination.28 Another plaintiff, Joan Buchholz, alleges that exposure to MTBE "affected her immune system and caused her disease of melanoma."29 A number of other plaintiffs testified in depositions that they worry about their children's and grandchildren's exposure to MTBE.30

III. LEGAL STANDARD

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."31 An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"32 A fact is material when it "`might affect the outcome of the suit under the governing law.'"33

The party moving for summary judgment bears the burden of showing the absence of any factual dispute.34 In turn, to defeat summary judgment, the nonmoving party must raise an issue of material fact by putting forth "sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties' differing versions of the truth at trial."35 a The non-moving party "`may not rely on conclusory allegations or unsubstantiated speculation.'"36 When deciding a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party.37 "If there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party," summary judgment is inappropriate.38

IV. APPLICABLE LAW

"Freedom from mental disturbance is [ ] a protected interest" in New York.39 For most of common law history only physical injury was compensable in negligence or intentional torts, with "parasitic"...

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