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

Filing 4269

OPINION AND ORDER #105956 re: (597 in 1:07-cv-10470-SAS) MOTION for Partial Summary Judgment Based on Statute of Limitations. filed by ExxonMobil Corporation, Esso Standard Oil Company (Puerto Rico). For the foregoing reasons, the defendants' motion for summary judgment is DENIED in part and GRANTED in part. The Clerk of the Court is directed to close this motion (Dkt. No. 597). SO ORDERED. (As further set forth within this Opinion.) (Signed by Judge Shira A. Scheindlin on 10/1/2015) Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:07-cv-10470-SAS(ajs) Modified on 10/19/2015 (ca).

Currently before the Court is certain defendants’1 motion for partial
summary judgment on the grounds that the Commonwealth’s claims as to certain
trial sites are time-barred. For the reasons stated below, the motion is DENIED in
part and GRANTED in part.
II.

BACKGROUND
Pursuant to this Court’s September 15, 2014 Case Management Order,

five sites were selected for the Phase I trial: Esso CO-242, Esso CO-364, Shell
3042, Texaco 800, and Total 1012.2 Defendants challenge Causes of Action I-V of

1

Joining the motion are:
Esso Standard Oil Co. (Puerto Rico);
Shell Western Supply and Trading Limited;
Sunoco, Inc.;
Sunoco, Inc. (R&M);
Puerto Rico Sun Oil Company LLC;
CITGO International Puerto Rico Co.;
Chevron Puerto Rico LLC;
Chevron U.S.A. Inc.;
Chevron Corporation;
Total Petroleum Puerto Rico Corp.;
Sol Puerto Rico Limited f/k/a The Shell Company (Puerto Rico) Limited;
HOVENSA LLC;
Hess Oil Virgin Islands Corp.;
ConocoPhillips Company;
Chevron Phillips Chemical Puerto Rico Core LLC.
2

See Case Management Order No. 117 (Sept. 15, 2014), at 2.
2

the Third Amended Complaint (“TAC”)3 at all but the Texaco 800 site. Of the four
challenged sites, defendants allege the Commonwealth possessed actual knowledge
sufficient to trigger the statute of limitations at the Esso CO-242 and Total 1012
sites and that the Commonwealth is deemed to have knowledge sufficient to trigger
the statute of limitations at the Esso CO-364 and Shell 3042 sites.
III.

LEGAL STANDARD
Summary judgment is appropriate where, “viewing the record in the

light most favorable to the non-moving party . . . ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’”4 “In
making this determination . . . we resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is
sought.”5 “A fact is material if it might affect the outcome of the suit under the
governing law, and an issue of fact is genuine if the evidence is such that a

3

Causes of Action I through V in the TAC are: (I) Strict Products
Liability; (II) Public Nuisance; (III) Trespass; (IV) Negligence; and (V) Puerto
Rico Environmental Public Policy Act (“EPPA”).
4

Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir.
2015) (quoting Fed.R.Civ.P. 56(a)) (quotations omitted).
5

Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)
(quotations omitted).
3

reasonable jury could return a verdict for the nonmoving party.”6
“The moving party bears the burden of showing the absence of a
genuine dispute as to any material fact.”7 To defeat a motion for summary
judgment, the non-moving party must “‘do more than simply show that there is
some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.’”8
“‘The function of the district court in considering the motion for
summary judgment is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.’”9
“‘Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’”10
“‘Because the statute of limitations is an affirmative defense, the defendant bears

6

Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S.Ct. 2675 (2013) (quotations and alterations omitted).
7

Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.
2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
8

Robinson, 781 F.3d at 44 (quoting Brown v. Eli Lilly & Co., 654 F.3d
347, 358 (2d Cir. 2011)).
9

Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (quoting
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)).
10

Crawford, 758 F.3d at 486 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
4

the burden of establishing by prima facie proof that the limitations period has
expired since the plaintiff’s claims accrued.’”11
IV.

APPLICABLE LAW
In Puerto Rico, Article 1802 of the Civil Code, L.P.R.A.12 section

5141, governs obligations that “arise from fault or negligence.”13 “The statute of
limitations for these actions is one year as provided by Art. 1868 of the Civil Code,
31 L.P.R.A. sec[tion] 5298.”1415 In Puerto Rico, the limitations period runs from
the time the aggrieved party has “notice of the injury, plus notice of the person who
caused it.”16 Once the defendant has established that the injury occurred more than

11

Szymanski v. Local 3, Int’l Bhd. of Elec. Workers, 577 Fed. App’x 52,
53 (2d Cir. 2014) (quoting Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir.
1995)).
12

I use the L.P.R.A. because it is readily available in translation.

13

In re MTBE Prod. Liab. Litig., No. 07 Civ. 10470, 2013 WL 6869410,
at *2 (S.D.N.Y. Dec. 30, 2013) (quoting a certified translation of Fraguada Bonilla
v. Hospital Auxilio Mutuo, 186 D.P.R. 365 (P.R. Sup. Ct. 2012)).
14

Id.

15

The Commonwealth’s argument that the injunctive relief requested
under the EPPA claims does not fall within the statute of limitations is without
merit. I have already held that EPPA claims are subject to the one-year statute of
limitations. See In re MTBE Prod. Liab. Litig., 2013 WL 6869410, at *5 (citing In
re MTBE Prod. Liab. Litig., 959 F. Supp. 2d 476 (S.D.N.Y. 2013)).
16

Rodriguez–Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir. 1997)
(quotation marks and citations omitted).
5

one year prior to the filing of the complaint, i.e., June 12, 2006, the plaintiff
“‘bears the burden of proving that she lacked the requisite knowledge at the
relevant times.’”17
Knowledge can be “true” or “deemed.”18 True knowledge is just what
it seems, “where a plaintiff is actually aware of all the necessary facts and the
existence of a likelihood of a legal cause of action.”19 Deemed knowledge is
knowledge that the plaintiff may not have actually possessed but “having been put
on notice as to certain facts and having exercised reasonable care regarding a
potential claim, should have acquired.”20 Finally, the statute of limitations may be
tolled where the “plaintiff has proffered evidence sufficient to support a finding
that representations and assurances by the defendant persuaded plaintiff to rely
reasonably and delay institution of a civil action.”21
V.

DISCUSSION
A.

Actual Knowledge Sites

17

Alejandro-Ortiz v. Puerto Rico Elec. Power Auth., 756 F.3d 23, 27
(1st Cir. 2014) (quoting Hodge v. Parke Davis & Co., 833 F.2d 6, 7 (1st Cir.
1987)).
18

Rodriguez–Suris, 123 F.3d at 14.

19

Id.

20

Id.

21

Id.
6

1.

Esso CO-242

The Commonwealth’s Environmental Quality Board (“EQB”) added
CO-242 to its list of leaking underground storage tanks (“LUST List”) in 1995
after being notified of a suspected gas leak by Esso Standard Oil Co. (“Esso”).22 In
2004 and 2005, Esso submitted reports to EQB prepared by its consultants.23 The
consultants analyzed soil and groundwater samples taken at the site.24 The finding
of MTBE was not included in the body, figures, or tables of these reports,25 but it
was included in an attached gas chromatography report.26
The inclusion of the chromatography report, which the
Commonwealth argues is essentially an appendix,27 is insufficient to establish that

22

See Defendants’ Rule 56.1 Statement in Support of Defendants’
Motion for Partial Summary Judgment Based on Statute of Limitations (“Def.
56.1”) ¶¶ 117-118 (citing Declaration of Michael J. Dillon (“Dillon Dec.”), Exs.
10, 33).
23

See Def. 56.1 ¶¶ 120, 125 (citing Dillon Dec., Exs. 35, 37).

24

See id.

25

See Plaintiff’s Rule 56.1 Counter-Statement to Certain Defendants’
Motion for Partial Summary Judgment Based on Statute of Limitations (“Pl. 56.1”)
¶ 77 (citing Declaration of John Gilmour (“Gilmour Dec.”), Ex. 17).
26

See Def. 56.1 ¶¶ 121, 125 (citing Dillon Dec., Exs. 35, 37).

27

See The Commonwealth of Puerto Rico’s Memorandum of Law in
Opposition to Certain Defendants’ Motion for Partial Summary Judgment Based
on Statute of Limitations (“Pl. Mem.”) at 31.
7

the Commonwealth had actual knowledge of the presence of MTBE. The presence
of MTBE was not included in the main body of the report because it was not a
target analyte.28 Defendants do not dispute that the chromatograms are included
only for quality assurance purposes along with the entirety of the laboratory report
including “laboratory blanks, field blanks, trip blanks, equipment blanks, [and]
field duplicates for each sampling day.”29 It is further undisputed that the
chromatogram reports would not ordinarily be reviewed by a case manager but
only by an EQB chemist validating the work done by Esso’s consultants and only
as to the target analytes.30 The Commonwealth has successfully established an
issue of fact about whether it had actual knowledge of injury at this site prior to the
bar date.
2.

Total 1012

EQB added the Total 1012 site to its LUST List in March 2004 after
being notified of a potential gasoline release in January of that year.31 On May 12,

28

See Pl. 56.1 ¶¶ 77-81.

29

Pl. Mem. at 31.

30

See Pl. 56.1 ¶ 85 (citing Gilmour Dec., Ex. 6); Defendants’ Response
to Plaintiffs’ [sic] Rule 56.1 Counter-Statement in Opposition to Certain
Defendants’ Motion for Partial Summary Judgment Based on Statute of
Limitations (“Def. Reply 56.1”) ¶ 85.
31

See Def. 56.1 ¶ 134 (citing Dillon Dec., Ex. 42).
8

2005, EQB received a Corrective Action Plan (“CAP”) from Gasolinas de Puerto
Rico Corporation/Total Petroleum Puerto Rico Corp. (“Total”) indicating the
highest concentrations of MTBE to date were detected in groundwater at the site.32
Defendants have sufficiently demonstrated that the Commonwealth
had both notice of the injury and notice of the tortfeasor. This Court has
previously held that the detection of de minimis MTBE at a site puts the plaintiff
on notice of injury at that site.33 The Commonwealth now contends that mere
detection in groundwater is not proof of an injury to the “waters of the
commonwealth” within the meaning of the TAC,34 because the “waters of the
commonwealth” are defined specifically as (1) Class SG–1 groundwater, (2) Class
SD surface water, and (3) “‘source waters that could impact the quality of Class

32

See id. ¶¶ 141-142 (citing Dillon Dec., Exs. 44-46). The
Commonwealth contests that inclusion in the report is sufficient notice of injury
because the finding was not included in the executive summary. See Pl. Mem. at
37-38. Unlike the Esso CO-242 sampling reports, the finding of MTBE appears
conspicuously in the body of the report, and the Commonwealth offers no reason
why this was insufficient notice. The fact that the Corrective Action Plan included
statements about corrective action does not diminish this notice or make it so
misleading as to toll the statute of limitations.
33

See In re MTBE Prod. Liab. Litig., 2013 WL 6869410, at *4.

34

Pl. Mem. at 34-35.
9

SG–1 and/or Class SD waters.’”35
To prove the existence of the injury, the Commonwealth posits, would
require a “lengthy and complex” analysis by hydrogeologists about each particular
site that “would be prohibitively expensive.”36 The Commonwealth essentially
argues that in order to succeed on this motion defendants must perform this
complex analysis at every trial site to prove the injury and that the injury occurred
before the bar date. Puerto Rican law has no such requirement. Absent any
evidence from the Commonwealth that the injury occurred after the bar date, there
is no triable issue of fact to preclude summary judgment for this site.37
B.

Deemed Knowledge Sites
1.

Esso CO-364

On July 13, 1998, ninety gallons of gasoline were spilled during a

35

In re MTBE Prod. Liab. Litig., No. 07 Civ. 10470, 2015 WL 1190048,
at *1 (S.D.N.Y. Mar. 16, 2015) (quoting TAC ¶ 5).
36

Pl. Mem. at 39.

37

The Commonwealth’s argument that it was misled as to the hazards of
MTBE also fails. See Pl. Mem. at 11-14. Simply because the Commonwealth was
allegedly misled by the statements from suppliers about the content of MTBE does
not mean that the statements were misleading within the meaning of Puerto Rican
law. Once defendants establish that the injury occurred more than one year before
the Complaint was filed, the plaintiff must demonstrate that it lacked notice. The
Commonwealth has failed to present any evidence that any statement was
sufficiently misleading to toll the statute of limitations.
10

delivery at CO-364.38 EQB received notice of this spill and the potential for
environmental damage in October 1998.39 EQB added the site to the LUST List
sometime before March 31, 2004.40 Importantly, MTBE was only detected at this
site in October 2006, after the bar date.41 From this, defendants conclude that
MTBE “surely was present before that date.”42
Defendants not only have failed to prove that the Commonwealth had
knowledge of the injury prior to the bar date, they have failed to present evidence
that the injury occurred before June 12, 2006. Defendants are effectively asking
the Court to draw an inference in favor of the moving party, when their own expert
disputes that the 1998 spill is responsible for the presence of MTBE at the site.43 I
cannot conclude as a matter of law that the statute of limitations had run prior to
the filing of the Complaint.
2.

Shell 3042

38

See Def. 56.1 ¶ 144 (citing Dillon Dec., Ex. 47).

39

See id. ¶ 146 (citing Dillon Dec., Ex. 48).

40

See id. ¶ 147 (citing Dillon Dec., Ex. 49).

41

See id. ¶ 148 (citing Dillon Dec., Ex. 39).

42

Memorandum of Law in Support of Certain Defendants’ Motion for
Partial Summary Judgment Based on Statute of Limitations (“Def. Mem.”) at 26.
43

See Pl. 56.1 ¶ 76 (citing Gilmour Dec., Ex. 15).
11

In 2002, after replacing the USTs at the site, Sol reported to EQB that
benzene, toluene, ethylbenzene, and xylenes (“BTEX”) and total petroleum
hydrocarbons (“TPH”) were detected in the sampled soil and water around the
UST pit area.44 Upon receiving the report, EQB requested Sol prepare a
characterization plan to assess the extent of potential contamination.45 EQB did
not, however, specifically request that Sol test for the presence of MTBE.46
Nonetheless, Sol did discover the presence of MTBE in May and August of 2005,
but neglected to report this information to EQB.47
Defendants must show that with knowledge of these facts and through
due diligence the Commonwealth would have gained actual knowledge of the
injury. Defendants have failed to meet this high standard.
The Commonwealth points out that the presence of BTEX and TPH in
a soil sample does not necessarily mean that MTBE is also present; all this
establishes is “that a release of petroleum occurred into or in the vicinity of the
sampled water or soil.”48 To conclude that this is sufficient to trigger the statute of
44

See Def. 56.1 ¶¶ 151-158 (citing Dillon Dec., Exs. 50-52).

45

See id. ¶ 159 (citing Dillon Dec., Ex. 52).

46

See id. ¶ 160 (citing Dillon Dec., Ex. 52).

47

See id. ¶ 166 (citing Dillon Dec., Ex. 5).

48

Pl. 56.1 ¶ 67 (citing Gilmour Dec., Ex. 12).
12

limitations would be tantamount to concluding that a claim regarding any site on
the LUST List is barred because the site was on the list prior to the bar date. While
a reasonable jury may so find, I cannot so as a matter of law.
To find that knowledge of any gasoline leak at a certain point in time
necessarily put the Commonwealth on notice of the presence of MTBE requires a
determination of, at least, (1) what the Commonwealth knew about MTBE and
when it knew it, (2) what the Commonwealth knew about the existence of MTBE
in gasoline provided by each individual gasoline supplier, (3) how a “reasonable
sovereign” with the Commonwealth’s resources would have interpreted that
information and acted on it, and (4) how soon, with the exercise of due diligence,
the Commonwealth would have been actually aware of its injury. This would
require the court to impermissibly weigh the evidence.49
VI.

CONCLUSION
For the foregoing reasons, the defendants’ motion for summary

judgment is DENIED in part and GRANTED in part. The Clerk of the Court is
directed to close this motion (Dkt. No. 597).

49

See In re MTBE Prod. Liab. Litig., No. 04 Civ. 2389, 2007 WL
1601491, at *7 (S.D.N.Y. June 4, 2007) (reconsideration granted on other grounds)
(“Some of defendants’ facts are disputed, and others require assessments of weight
and credibility which this Court may not decide in addressing a motion seeking
summary judgment.”).
13

- Appearances Counsel for Plaintiff:
John D.S. Gilmour, Esq.
Jackson Gilmour & Dobbs, P.C.
3900 Essex, Suite 700
Houston, TX 77027
[phone]
Jorge L. Flores, Esq.
Legal Counsel
Puerto Rico Department of Justice
Olimpo Street, Pda. 11
San Juan, Puerto Rico 00907
John K. Dema, Esq.
Law Offices of John K. Dema, P.C.
1236 Strand Street, Suite 103
Christiansted, St. Croix
U.S. Virgin Islands 00820
Orland H. Martinez, Esq.
Orland H. Martinez Law Offices
Centra de Seguros, Suite 413
701 Ponce de Leon Avenue
San Juan, Puerto Rico 00907
Michael Axline, Esq.
Miller Axline
1050 Fulton Avenue, Suite 100
Sacramento, CA 95825
Liaison Counsel for Defendants, and Appearing on Behalf of Defendants:
Peter J. Sacripanti, Esq.
James A. Pardo, Esq.
Michael J. Dillon, Esq.
15

McDermott Will & Emery LLP
50 Rockefeller Plaza, 11th Floor
New York, NY 10020
[phone]

16