In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 3902

DECLARATION of Susan M. Dean in Opposition re: (318 in 1:08-cv-00312-SAS) MOTION for Summary Judgment as to Getty Property Corp.'s Third-Party Complaint.. Document filed by Getty Properties Corp.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:08-cv-00312-SAS(McMeekin, John)

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6708493-1

D8JMMTBI
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:

MTBE LITIGATION
00 MDL 1358 (SAS)

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New York, N.Y.
August 19, 2013
4:40 p.m.
Before:
HON. SHIRR A. SCHEINDLIN,
District Judge
APPEARANCES
MILLER AXLINE & SAWYER
Attorneys for Plaintiffs NJ, PR, et al.
BY:
MICHAEL AXLINE
-andBERGER & MONTAGUE
BY:
TYLER E. WREN
GWEN FARLEY
YIN ZHOU
Attorneys for New Jersey Plaintiffs
McDERMOTT WILL & EMERY LLP
Attorneys for Defendant ExxonMobil, Defense Liaison
BY:
JAMES A. PARDO
ARCHER & GREINER, P.C.
Attorneys for Defendants
BY: DAVID EDELSTEIN
KING & SPALDING LLP
Attorneys for Defendant Chevron
BY:
CHARLES C. CORRELL, JR.
ROBERT MEADOWS
SEDGWICK LLP
Attorneys for Defendant Shell
BY: PETER C. CONDRON
RICHARD E. WALLACE, JR.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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90
DSJNIMTB3
that are in the possession of GPMI related to this site from
1987.
We were unable to find any supply records.
The owner of
the property does not have any supply records. So there is no
affirmative -THE COURT:
Way to disprove it.
MS. DEAN:
That's correct, your Honor.
THE COURT:
That leaves his inference.
MS. DEAN:
But, your Honor, he cannot meet the
requirement of the preponderance of the evidence under the
Supreme Court's holding in DeMonte with an inference that there
was MTBE in the soil.
THE COURT:
I know the one you mean.
MS. DEAN: Plaintiffs have to show with a
preponderance of the evidence that there was a connection
between a discharge, which in this case as to Getty the only
evidence is that there was soil contamination. No groundwater
contamination.
THE COURT:
I got that.
But the only inference is
going to be the widespread use.
That's about it.
Is that going to meet the preponderance of the
evidence test, Mr. Axline?
MR. AXLINE:
It is, your Honor. The DeMonte case was
decided after taking of evidence and I am not sure that the
preponderance of the evidence test is appropriate on a summary
judgment motion.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT: There is some evidence that can support a
disputed issue of fact, I think you might be right on that.
But for summary judgment purposes he doesn't have to meet the
preponderance of the evidence test because then I would be
weighing the evidence. That can't be the test on summary
judgment. It has to be a record cite to something that will
show that they will offer evidence at trial from which a
reasonable juror could find. That's the way it reads. I
wouldn't have to meet the preponderance of the evidence test.
Then I would be weighing.
MS. DEAN: I understand, your Honor. But the bottom
line is, plaintiffs don't even have an expert opinion to
connect MTBE that was found in 2006, 19 years after my client
pulled the USTs.
THE COURT: He agrees with that.
MS. DEAN: And the MTBE was located in a new tank
field.
THE COURT:
Which he says is right on top of the old
tank field. He says it's right on top of the old tank field.
MS. DEAN: In our motion, your Honor, we would present
evidence showing that that is not true.
THE COURT:
Then it will be a disputed issue of fact
and I can't decide it. I'm trying to make a point as to when
these motions should be made and shouldn't be made. If that's
disputed and if he relies on proof that virtually all the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]