In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation
Filing
3858
AMENDED ANSWER to. Document filed by The Premcor Refining Group Inc.. (Bennett, James)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In re Methyl Tertiary-Butyl Ether
(“MTBE”) Products Liability Litigation
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Master File C.A. No. 1:00-1898
MDL 1358 (SAS)
No. M21-88
PREMCOR REFINING GROUP INC.’S
EIGHTH AMENDED MASTER
ANS WER AND AFFIRMATIVE
DEFENSES
This document relates to:*
All Cases in MDL 1358 in which The Premcor
Refining Group Inc. has been properly named
and served, and for which an answer is due.
____________________________________
Pursuant to the Master Answer agreement among the parties and Case
Management Order #6, defendant, The Premcor Refining Group Inc., answers the complaints in
those MDL 1358 cases for which an answer is due, and in which it has been properly named and
served. The Premcor Refining Group Inc. is not necessarily a defendant in each case in MDL
1358. Therefore, by filing this Eighth Amended Master Answer and Affirmative Defenses,
Premcor Refining Group Inc. does not intend to waive service of process or any applicable
grounds for dismissal under Federal Rule of Civil Procedure 12.
*
Premcor Refining Group Inc. is not submitting repetitive motions to dismiss or strike in cases more recently
consolidated in MDL 1358. However, Premcor Refining Group Inc. expressly reserves the arguments set forth in
motions to dismiss or strike previously filed in cases in this MDL proceeding.
MASTER ANSWER
I.
ADMISSIONS AND STATEMENTS REGARDING COMMON ALLEGATIONS
The Premcor Refining Group Inc. (“PRG”) is a Delaware corporation which was
incorporated on February 8, 1988, under the name AOC Acquisition Corporation (“AOC”). On
November 22, 1988, AOC changed its name to Clark Oil & Refining Corporation.
On
September 13, 1993, Clark Oil & Refining Corporation changed its name to Clark Refining &
Marketing Inc. On May 10, 2000, Clark Refining & Marketing Inc. changed its name to The
Premcor Refining Group Inc.
PRG purchased its first refineries located in Hartford, Illinois and Blue Island,
Illinois on November 22, 1988, through the bankruptcy proceedings of Apex Oil Company and
its subsidiaries. PRG also purchased the following refineries: Port Arthur Refinery, Port Arthur,
Texas (purchased 1995); Lima Refinery, Lima, Ohio (purchased 1998); Memphis Refinery,
Memphis, Tennessee (purchased March, 2003); and Delaware City Refinery, Delaware City,
Delaware (purchased May 1, 2004). The Lima Refinery and Delaware City Refinery have since
been sold.
II.
ALLEGATIONS PURPORTING TO QUOTE OR REFERENCE DOCUMENTS,
STATUTES AND REGULATIONS
Numerous paragraphs in each complaint purport to quote from, analyze or
summarize documents, statutes, and regulations.
The documents, statutes, and regulations
referenced by Plaintiffs are not attached to the Complaints. PRG denies Plaintiffs’ attempts to
summarize or characterize the contents of any documents, statues or regulations identified in the
Complaints and further avers that any statutes and regulations present matters of law for
interpretation by the Court and/or appropriate administrative agency. PRG further denies that
any documents, statutes or regulations cited in the Complaints give rise to liability on the part of
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PRG and leaves Plaintiffs to their proof.
III.
ALLEGATIONS AGAINST OTHER DEFENDANTS UNRELATED TO PRG
PRG is without knowledge or information sufficient to form a belief as to the
truth of the matters averred in the complaints regarding the specific statements, acts or omissions
of any defendant unrelated to PRG.
IV.
DENIALS
A.
Specific Denials
PRG denies that it was in existence prior to February 8, 1988, and denies that it
participated in any activities alleged by Plaintiffs in the complaints to have occurred prior to
February 8, 1988.
PRG denies that it acted in concert, conspired, or had any agreement with another
defendant to withhold from Plaintiffs or government regulators information concerning methyl
tertiary butyl ether (“MTBE”) or tertiary butyl alcohol (“TBA”).
PRG denies that it was a member of the American Petroleum Institute (“API”),
any API committee dedicated to MTBE, or the Oxygenated Fuels Association, and further denies
that any such purported association could give rise to liability as Plaintiffs allege.
PRG denies that it manufactured MTBE or TBA.
B.
General Denial of Remaining Allegations
Except as admitted to or responded to herein, PRG denies each and every
remaining allegation in the Complaints in the above referenced matter.
V.
CAUSES OF ACTION ALLEGED
To the extent that any operative complaint in the above captioned matters
incorporates prior allegations in any particular cause of action, PRG incorporates by reference its
responses to said prior allegations as if fully set forth herein.
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PRG denies that it is liable to the plaintiff(s) under any cause of action asserted in
the Complaints in any of the above captioned matters. PRG denies that it violated the product
liability law of any state, whether statutory or common law. PRG denies that it failed to warn of
the allegedly dangerous, defective properties of gasoline containing MTBE. PRG denies that it
was negligent, engaged in a so-called “civil conspiracy,” created a nuisance, engaged in a
trespass, committed fraud or misrepresentation, and/or violated any state statute or regulation.
PRG denies that Plaintiffs are entitled to any relief requested in the Complaints in
the above captioned matters.
VI.
PLAINTIFFS’ DEMAND FOR A JURY TRIAL
PRG admits that Plaintiffs have demanded a jury trial, but denies that Plaintiffs
are entitled to a jury trial on all claims for relief set forth in the Complaints.
VII.
RESERVATION OF RIGHT TO AMEND
PRG reserves the right to amend this Master Answer.
AFFIRMATIVE DEFENSES
I.
AFFIRMATIVE DEFENSES APPLICABLE TO ALL CASES
PRG sets forth the following separate defenses, which shall not constitute or be construed
as any undertaking by PRG of any burden which would otherwise be that of the Plaintiffs in the
above captioned cases:
1.
Plaintiffs’ claims are barred in whole or in part by the doctrine of federal
preemption, including conflict preemption and field preemption.
2.
Plaintiffs’ claims are barred in whole or in part, because at all relevant
times, PRG’s actions and their products complied with and were undertaken pursuant to
applicable federal, state, and local laws, rules, regulations and specifications.
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3.
Plaintiffs’ claims are barred in whole or in part because federal, state
and/or local authorities and agencies have mandated, directed, approved and/or ratified the
alleged actions or omissions of PRG.
4.
All acts and conduct of PRG, as alleged in the complaints, conformed to
and were pursuant to statutes, government regulations and industry standards, and were based
upon the state of knowledge existing at all materials times alleged in the complaints.
5.
The relief sought by Plaintiffs’ complaints is, in whole or in part, within
the particular expertise of and is being addressed by federal and state governments, and their
relevant agencies, and thus this Court should decline to exercise jurisdiction over this matter
pursuant to the doctrine of primary jurisdiction.
6.
Plaintiffs have failed to exhaust their administrative remedies.
All
proceedings before this Court should be stayed pending administrative resolution of the issues
presented herein.
7.
Plaintiffs have a plain, common, adequate and speedy remedy at law. The
equitable causes of action alleged in the complaints are thus barred.
8.
Plaintiffs are barred from seeking strict liability for design defect as any
attempt to reexamine the mandatory cost-benefit analysis delegated to and performed by the EPA
pursuant to its obligations under the Clean Air Act (CAA) would be impermissible given that
Congress, through Section 211 of the CAA, authorized the EPA, and not the courts, to perform
the cost-benefit analysis.
9.
If it is determined that Plaintiffs or anyone on whose behalf Plaintiffs are
allegedly suing, was injured, as set forth in the complaints, which PRG denies, PRG alleges that
such hardship is outweighed by the convenience and public service rendered by PRG’s actions.
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10.
Each purported cause of action asserted in the complaints is barred under
the doctrine of primary assumption of the risk in that the general public, by and through its
elected representatives and their appointees, knew and understood the alleged risks of harm
presented by the use of MTBE, if any, and elected nevertheless to proceed to require the use of
gasoline oxygenates and to specifically permit the use of MTBE.
11.
To the extent that Plaintiffs have received or may receive the requested
relief from a governmental agency, PRG asserts its entitlement to an appropriate set-off or
reduction of any judgment(s) against them.
12.
The appropriate forum for Plaintiffs’ claims is an administrative agency,
and therefore all proceedings before this Court should be stayed pending administrative
resolution of the issues.
13.
The claims set forth in the complaints fail, in whole or in part, based on
the doctrine of election of remedies.
14.
Each purported cause of action in the complaints as applied to PRG is
barred because the relief sought therein would pose unreasonable barriers and substantial
burdens on interstate and/or international commerce in violation of the Commerce Clause of the
United States Constitution and/or the North American Free Trade Agreement.
15.
The complaints fail to state a claim upon which relief may be granted and
should, therefore, be dismissed pursuant Fed. R. Civ. P. 12(b)(6). Without limiting the general
application of the foregoing, the “commingled product theory” of market share liability has not
been adopted by the highest state court of any state implicated by this litigation. Any causes of
action based upon such a theory are legally insufficient and fail to state a claim upon which relief
may be granted. PRG further states that to the extent that the highest state court of any state
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implicated by this litigation would, in fact, adopt a “commingled product theory” of market share
liability, it would not do so in the circumstances of this case, where Plaintiffs have made no
efforts to identify the source(s) of their alleged property damage and/or contamination.
16.
Because Plaintiffs have not suffered any cognizable harm and have not
incurred any present damages, there is no current case or controversy and thus, Plaintiffs’ claims
are not ripe for adjudication.
17.
Plaintiffs have failed to state a cause of action for nuisance because they
have neither alleged nor suffered any particularized injury.
18.
The alleged injuries and damages, if any, suffered as a result of conduct
legally attributable to PRG is de minimis and therefore any injunction would pose a
disproportionate hardship on PRG, as well as on the public, in comparison to the injury and or
damages allegedly suffered by Plaintiffs. Accordingly, Plaintiffs are not entitled to injunctive
relief against PRG as a matter of law.
19.
Plaintiffs do not have a legally cognizable injury unless or until the alleged
MTBE contamination exceeds state action levels.
20.
Plaintiffs may not seek attorneys’ fees as an element of relief.
21.
Alternatively, Plaintiffs have failed to properly present any claim for
attorneys’ fees.
22.
To the extent attorneys’ fees are either allowed or recoverable, Plaintiffs
have sued multiple parties, under multiple causes of action, with divisible damages, and thus, the
claim for attorneys’ fees must be proportioned between the same.
23.
The clams set forth in the complaints are barred, in whole or in part, by the
mootness doctrine.
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24.
The complaints and each purported cause of action are barred, in whole or
in part, by the defense of laches. Plaintiff’s unreasonable and inexcusable delay in filing these
actions caused substantial prejudice to PRG.
25.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations.
26.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of repose.
27.
Plaintiffs are estopped by their conduct from asserting any of the
purported claims alleged against PRG in the complaints.
28.
Plaintiffs have not investigated the cause of the alleged harm or attempted
to identify the actual responsible party or parties, thereby precluding any recovery of damages
under the common law, for statutory violations, or under any market share or collective liability
theory.
29.
Plaintiffs cannot establish the required predicates for their theories of
collective liability, and therefore their defendant-identification burden remains. In the event that
the defendant-identification burden were shifted in the future, PRG denies that it contributed to
the environmental impact at issue.
30.
Because the highest state courts of any state implicated by this litigation
have not recognized a “commingled product theory” of market share liability and/or would not
do so under the circumstances of this case, the burden of proof of causation has not shifted to
PRG and/or any other Defendant. Plaintiffs retain the burden of pleading and proving that PRG
or other Defendants proximately caused their alleged property damage and/or environmental
harm.
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31.
To the extent that any state implicated by this litigation does recognize
market share or collective liability in any form, and Plaintiffs have met their burden shifting
requirements, PRG is not liable to Plaintiffs as it did not supply any product to the relevant
market during the relevant time period and/or supplied only a de minimis or inconsequential
amount of product.
32.
Because Plaintiffs have not suffered any cognizable harm and have not
incurred any present damages, there is no current case or controversy, and thus, Plaintiffs’ claims
are not ripe for adjudication.
33.
Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.
34.
Plaintiffs’ failure to even attempt to identify the actual source(s) of their
alleged property damage or contamination prior to bringing suit against Defendants such as PRG
amounts to conduct involving unclean hands. Consequently, Plaintiffs’ claims for equitable
relief are barred.
35.
PRG relied upon the approval of government agencies such as the
Environmental Protection Agency in using MTBE as a gasoline additive; consequently, Plaintiffs
are estopped by operation of common law or through the doctrine of regulatory estoppel from
maintaining their causes of action against PRG.
36.
Plaintiffs assumed the risk of all acts, injuries, and damages that Plaintiffs
now assert against PRG.
37.
PRG is entitled to total or partial indemnity from those individuals or
entities who are responsible for Plaintiffs’ injuries or damages, if any, in an amount in direct
proportion to their relative culpability.
38.
Plaintiffs lack the capacity to sue.
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39.
Plaintiffs lack standing to sue.
40.
There is a defect or misjoinder of parties, in that Plaintiffs have failed to
join indispensable or necessary parties.
41.
Plaintiffs’ claimed injuries were caused in whole or in part by others,
whose actions were not controlled by or related to PRG. To the extent that this is deemed to be
an affirmative defense, such actions are the superseding, supervening and/or intervening cause of
Plaintiffs’ injuries and therefore Plaintiffs may not recover from PRG as a matter of law.
42.
At no time did PRG exercise control over the persons or entities
responsible for actual or threatened releases of MTBE, if any, alleged in the complaints.
43.
To the extent required, PRG provided proper warnings, information, and
instructions relating to its products pursuant to generally recognized and prevailing standards in
existence at the time.
44.
The Plaintiffs’ claims against PRG are barred by the bulk supplier
45.
PRG sold its products to knowledgeable and sophisticated purchasers, and
doctrine.
any injury alleged by Plaintiffs was caused by such purchasers’ failure to observe known
standards of care.
46.
Any injury, damage or loss sustained by the Plaintiffs was proximately
caused by and/or contributed to by Plaintiffs’ own negligence, carelessness, and/or omissions.
Consequently, Plaintiffs’ claims must be dismissed or their recovery reduced in whole or in part
due to the percentage of fault attributable to the Plaintiffs’ negligence, carelessness, and/or
omissions in accordance with the common law or statutes of the states implicated by this
litigation.
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47.
If it is determined that Plaintiffs or anyone on whose behalf Plaintiffs are
allegedly suing, was injured, as set forth in the complaints, which PRG denies, PRG alleges that
any award of damages shall be reduced in proportion to the percentage of fault attributable to the
Plaintiffs.
48.
Plaintiffs’ claims are barred pursuant to the learned intermediary doctrine.
49.
If any damages or injuries alleged in the complaints occurred because of
leaks in the gasoline storage tanks and associated piping, PRG is not liable for those damages
and/or injuries because the gasoline storage tanks and associated piping, when manufactured and
distributed, conformed to the then current state of scientific and industrial knowledge, and the
tanks and associated piping were used for their intended purpose.
50.
Plaintiffs’ claims are barred to the extent the conduct complained of is
protected by the First Amendment to the United States Constitution.
51.
Plaintiffs’ claims are barred since the federal government and/or a federal
agency has in effect mandated the use of MTBE, and thus, Plaintiffs’ claims violate PRG’s
rights, including its right to substantive due process, under the United States Constitutions and
the Constitutions of the State of Delaware and the States of Illinois, New Jersey, Indiana,
Massachusetts, Missouri, and Pennsylvania.
52.
Plaintiffs’ claims are time and otherwise barred, in whole or in part, based
on Plaintiffs’ actual or constructive notice of reported spills or releases, if any, from publicly
available records.
53.
The injuries and damages, if any, alleged by Plaintiffs are caused in whole
or in part to the presence of compounds other than MTBE. Under Plaintiffs own legal theories,
PRG is not liable for damages caused by compounds other than MTBE. In the event liability is
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assessed against PRGs, such liability must be reduced, in whole or in part, where, and to the
extent that, other compounds – about which Plaintiffs do not complain – contributed to the
alleged injury.
54.
PRG is not liable for environmental harm where chemical compounds
other than MTBE exceed state actions levels or standards, requiring cleanup or regardless of the
presence of MTBE (particularly, but not exclusively, where MTBE is present below state action
levels or standards).
55.
If it is determined that Plaintiffs or anyone on whose behalf Plaintiffs are
allegedly suing, was injured, as set forth in the complaints, which PRG denies, PRG alleges that
any award of damages shall be reduced in proportion to the percentage of fault attributable to
third parties (including but not limited to persons or entitles responsible for gasoline leaks or
spills).
56.
The injuries alleged in the complaints, if any, should be reasonably
apportioned among the defendants, as each defendant’s alleged acts and omissions is divisible
and distinct. Therefore, no defendant is jointly and severally liable to Plaintiffs for any claim
alleged in the complaints.
57.
Plaintiffs have unreasonably failed to mitigate their damages, if any.
58.
To the extent that any party has settled or may settle in the future with
Plaintiffs, PRG asserts their entitlement to an appropriate credit or reduction of any judgment(s)
against them.
59.
Plaintiffs’ claim for punitive damages violates the provisions of the U.S.
Constitution, including but not limited to those provisions requiring due process of law and
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prohibiting excessive fines, as well as the Constitutions of the State of Delaware and the States
of Illinois, New Jersey, Indiana, Iowa, Massachusetts, Missouri, and Pennsylvania.
60.
Plaintiffs are public entities and/or authorities seeking compensation for
alleged damages to natural resources allegedly under their jurisdiction or purview. These public
entity/authority Plaintiffs have improperly delegated the power to prosecute these cases to
private attorneys on a contingent fee basis. Such delegation is against public policy.
61.
Plaintiffs’ claims are barred, in whole or in part, by any provision of state
law allowing for the reimbursement of costs and expenses associated with remediation of
environmental property damage and/or Defendants are entitled to a set off for any recovery
Plaintiffs obtain from any governmental agency as a result of the alleged environmental harm
and/or property damage.
62.
PRG incorporates by reference any affirmative allegations pleaded by any
Co-Defendant that are consistent with Plaintiffs’ claims and which, notwithstanding, preclude a
recovery in whole or in part by Plaintiffs.
II.
AFFIRMATIVE DEFENSES APPLICABLE TO PARTICULAR STATES
PRG sets forth the following separate defenses for cases pending in particular states,
which separate defenses shall not constitute or be construed as an undertaking by PRG of any
burden which would otherwise be that of the Plaintiffs in the above captioned cases:
A.
ILLINOIS
1.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to, 735
ILCS 5/13-205.
2.
Plaintiffs’ recovery is barred, in whole or in part, due to their contributory
fault, pursuant to 735 ILCS 5/2-1116.
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B.
NEW JERSEY
1.
The complaint and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to, N.J.
Stat. Ann. § 2A:14-2 and N.J. Stat. Ann § 58:10B-17.1(a), which requires the State to commence
any civil action concerning the remediation of a contaminated site within three years after the
accrual of the cause of action.
2.
Plaintiffs’ claims for natural resource damages under either the New
Jersey Spill Compensation and Control Act (“Spill Act”) or the Water Pollution Control Act
(“WPCA”) are specifically barred by the applicable provisions of the pertinent statutes of
limitations including N.J. Stat. Ann. 58:10B-17.1(b), which requires the State to commence any
action “concerning the payment of compensation for damage to, or loss of, natural resources due
to the discharge of a hazardous substance . . .within five years and six months next after the
cause of action shall have accrued.”
3.
Plaintiffs’ claim for relief under the Spill Act is barred to the extent
Plaintiff has already received “compensation for damages or cleanup costs pursuant to any other
State or Federal Law.” N.J. Stat. Ann. § 58:10-23.11v. (2009).
4.
Plaintiffs’ claims are barred by the statutory defenses to liability provided
by the Spill Act and the WPCA.
5.
Plaintiffs’ claims under the Spill Act and WPCA are barred to the extent
plaintiffs seek relief for conduct occurring or damages incurred prior to the effective date of the
Spill Act and/or WPCA.
6.
Plaintiffs’ claims for natural resource damages under either the New
Jersey Spill Compensation and Control Act or the Water Pollution Control Act are barred in
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whole or in part to the extent the New Jersey Department of Environmental Protection has
already recovered damages from or otherwise released the responsible parties.
7.
Plaintiffs’ claims against PRG are barred by the New Jersey entire
controversy doctrine, doctrine of res judicata and/or similar doctrines, and because of plaintiffs’
failure to comply with New Jersey Court Rule 4:5-1 in prior litigations.
8.
Plaintiffs’ claims are barred by the doctrine of primary jurisdiction insofar
as the NJDEP is responsible for directing and allocating responsibility for investigation and
remediation of the environmental condition alleged in the complaints.
9.
Plaintiffs’ claims are barred, in whole or in part, by plaintiffs’ failure to
comply with the prerequisites to liability under the Spill Act, including without limitation
plaintiffs’ incurring of costs not authorized by the Spill Act and plaintiffs’ failure to direct clean
up and remediation operations in accordance with the National Contingency Plan to the greatest
extent possible.
10.
Plaintiffs’ claims for natural resource damages are barred because the
State’s method of assessing natural resource damages was not adopted in a manner consistent
with the Administrative Procedures Act, N.J.S.A. § 52:14B-2(e).
11.
Any injury or damages suffered by plaintiffs have been increased by
plaintiffs’ failure to mitigate their damages, in that (1) the policies and activities of the State of
New Jersey and its agencies during the period of time for which plaintiffs seek damages have
caused damage to natural resources greater than that would otherwise have occurred; and (2) the
State and its agencies have failed to take reasonable measures available to them to reduce
damages.
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12.
Plaintiffs’ claims against PRG are barred, in whole or in part, by the prior
settlement with certain MDL plaintiffs in New Jersey.
C.
INDIANA
1.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to, Ind.
Code. Ann. 34-20-3-1.
2.
Plaintiffs’ product liability design defect claims are barred, in whole or in
part, because no alleged act or omission by PRG gave rise to design defect liability pursuant to
Indiana’s Product Liability Act, as set forth in Ind. Code. Ann. 34-20-2-1.
3.
Plaintiffs’ product liability claims fail because PRG had no duty to warn
Plaintiffs, as Plaintiffs knew or should have known of the alleged danger. Ind. Code. Ann. 3420-6-1.
4.
Plaintiffs’ product liability claims fail because PRG manufactured its
products in conformity with generally recognized state of the art. Ind. Code. Ann. 34-20-6-1.
5.
Any duty to warn, if one existed at all, was discharged pursuant to Ind.
Code. Ann. 34-20-6-1 because the alleged defects, if any, were open and obvious to Plaintiffs.
6.
Plaintiffs voluntarily and unreasonably assumed the risk of injury, thereby
relieving PRG of liability. Ind. Code. Ann. 34-20-6-1 and 34-20-6-3.
7.
Any alleged design defect was not the proximate cause of Plaintiffs’
injuries or harm, pursuant to Ind. Code. Ann. 34-20-6-1 (West 2001).
8.
Plaintiffs’ alleged injuries, if any, resulted from the misuse of the product
by Plaintiffs or other persons, and such misuse was not reasonably expected by PRG at the time
they sold or otherwise conveyed the product to the other party. Ind. Code. Ann. 34-20-6-4.
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9.
Plaintiffs’ claims for public nuisance should be dismissed because at no
time did any act or omission attributable to PRG or its products interfere with Plaintiffs’
comfortable enjoyment of life or property. Ind. Code. Ann. 34-19-1-1.
10.
Plaintiffs have failed to state a cause of action for public nuisance because
PRG’s alleged conduct is not unreasonable upon comparison of its alleged conduct with
Plaintiffs’ competing interests. Ind. Code. Ann. 34-19-1-1.
11.
Plaintiffs’ recovery is barred by their contributory fault, which is greater
than the fault of all persons whose fault may have proximately contributed to Plaintiffs’
damages. Ind. Code. Ann. § 34-51-2-6.
12.
Plaintiffs are public entities and/or authorities seeking compensation for
damages to natural resources under their jurisdiction or purview. These public entity/authority
plaintiffs have improperly delegated the power to prosecute these cases to private attorneys on a
contingent fee basis. Such delegation is against public policy.
D.
IOWA
1.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to, Iowa
Code Ann. §§ 614.1(2) and 614.1(4).
2.
Plaintiffs’ recovery is barred by their contributory fault, which is greater
than the fault of all persons whose fault may have proximately contributed to plaintiffs’
damages. Iowa Stat. Ann. § 668.3.
3.
Recovery is barred or must be reduced, in whole or in part, based on the
doctrine of comparative negligence.
4.
PRG is not jointly and severally liable because it bears less than fifty
percent of the total fault of all parties. Iowa Stat. Ann. § 668.4.
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5.
Plaintiffs assumed the risk of any alleged injury.
6.
PRG products “conformed to the state of the art in existence at the time.”
Iowa Stat. Ann. § 668.12(1).
7.
PRG cannot be liable for failure to warn because the alleged “risks and
risk-avoidance measures…should be obvious to, or generally known by, foreseeable product
users.” Iowa Stat. Ann. § 668.12(3).
8.
PRG cannot be liable because “a product bearing or accompanied by a
reasonable and visible warning or instruction that is reasonably safe for use if the warning or
instruction is followed shall not be deemed defective or unreasonably dangerous on the basis of
failure to warn or instruct.” Iowa Stat. Ann. § 668.12(4).
9.
Plaintiffs’ efforts to impose liability on PRG without proof of causation
violate the Due Process and other clauses of the federal and state constitutions.
E.
MISSOURI
1.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to Mo.
Ann. Stat. §§ 516.100, 516.120 and 516.010 (West).
2.
Plaintiffs’ recovery is barred or must be reduced, in whole or in part,
based on the doctrine of comparative fault. Mo. Ann. Stat. § 537.765 (West).
3.
Any duty to warn, if one existed at all, was discharged pursuant to Mo.
Ann. Stat. § 537.760 (West), because the alleged defects, if any, were open and obvious to
Plaintiffs.
4.
Plaintiffs’ product liability claims fail because PRG had no duty to warn
Plaintiffs, as Plaintiffs knew or should have known of the alleged danger. Mo. Ann. Stat. §
537.760 (West).
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5.
Plaintiffs’ product liability claims fail because PRG’s products were in
conformity with generally recognized state of the art. Mo. Ann. Stat. §§ 537.764 and 537.760
(West).
6.
Plaintiffs’ product liability claims fail because PRG’s products, at the time
they were sold, were not in a defective condition or unreasonably dangerous when put to a
reasonably anticipated use. Mo. Ann. Stat. § 537.760 (West).
7.
Any alleged defective condition, of PRG’s products at the time they were
sold, was not the proximate cause of Plaintiffs’ injuries or harm. Mo. Ann. Stat. § 537.760
(West).
8.
Plaintiffs’ alleged injuries, if any, resulted from use of the product that
was not reasonably anticipated by PRG at the time that they sold or otherwise conveyed the
product. Mo. Ann. Stat. § 537.760 (West).
9.
Plaintiffs’ recovery of punitive damages arising out of their alleged injury
is limited under Mo. Ann. Stat. § 510.265 (West).
10.
Plaintiffs’ recovery is barred or must be reduced, in whole or in part,
based on the doctrine of contribution. Mo. Ann. Stat. § 537.060 (West).
11.
Plaintiffs’ efforts to impose liability on PRG without proof of causation
violate the Due Process and other clauses of the federal and state constitutions.
F.
PENNSYLVANIA
1.
The complaints and each purported cause of action are barred by the
applicable provisions of the pertinent statutes of limitations, including but not limited to, 42 Pa.
Cons. Stat. Ann. § 5524.
2.
PRG’s conduct did not meet the minimum requirements of culpability
with respect to each material element of the alleged offenses of civil conspiracy, public nuisance,
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and negligence in order to be found liable according to the applicable provision of 18 Pa. Cons.
Stat. Ann. § 302, and, therefore, Plaintiffs’ claims on these counts should be dismissed.
3.
Plaintiffs’ claims for public nuisance are barred because at all relevant
times, neither PRG nor its products violated any orders or regulations adopted by the
Pennsylvania Department of Environmental Resources. 35 Pa. Cons. Stat. Ann. § 6
Dated: November 15, 2013
DOWD BENNETT LLP
By: ___/s/ James F. Bennett______
James F. Bennett
Willie J. Epps, Jr.
Selena L. Evans
7733 Forsyth Boulevard, Suite 1900
St. Louis, Missouri 63105
Telephone: (314) 889-7300
Facsimile: (314) 863-2111
jbennett@dowdbennett.com
wepps@dowdbennett.com
sevans@dowdbennett.com
Admitted pro hac vice
ATTORNEYS FOR PRG
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of The Premcor Refining Group Inc.’s Eighth
Amended Master Answer was served upon counsel for MDL Plaintiffs and to all other MDL
1358 counsel of record via CM/ECF and LexisNexis File & Serve on the 15th day of November,
2013.
/s/ James F. Bennett
James F. Bennett
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