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

Filing 4310

AMENDED ANSWER to. Document filed by Exxon Mobil Corp. Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:04-cv-04968-SAS, 1:07-cv-10470-SAS, 1:08-cv-00312-SAS, 1:14-cv-01014-SAS(Gerson, Lisa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In Re: Methyl Tertiary Butyl Ether (“MTBE”)
Products Liability Litigation
This document refers to:

Master File No. 1:00 – 1898
MDL 1358 (SAS): M21-88

Orange County Water District v. Unocal Corp., et al.,
Case No. 04-cv-4968
Commonwealth of Puerto Rico, et al. v. Shell Oil Co.,
et al., Case No. 07-cv-10470
Commonwealth of Puerto Rico, et al. v. Shell Oil Co.,
et al., Case No. 14-cv-01014
New Jersey Department of Environmental Protection,
et al. v. Atlantic Richfield Co., et al., Case No. 08cv-00312

EXXON MOBIL CORPORATION DEFENDANTS’ CORRECTED TWELFTH
AMENDED MASTER ANSWER AND AFFIRMATIVE DEFENSES
Pursuant to the Master Answer agreement among the parties, Case Management Order
No. 6 and the Court’s instructions during the January 13, 2005 status conference, Defendant
Exxon Mobil Corporation, by undersigned counsel, hereby amends its Eleventh Amended
Master Answer and Affirmative Defenses, filed in MDL 1358 on or November 15, 2013.
Exxon Mobil Corporation answers the complaints in In Re: Methyl Tertiary Butyl Ether
(“MTBE”) Products Liability Litigation (“MDL 1358”) for which an answer is presently
required, and in which it has been properly named and served, as follows:
PRELIMINARY STATEMENT
1.

Plaintiffs’ complaints purport to assert common law and statutory claims against

Exxon Mobil Corporation and various related entities and companies. One or more of the
following entities have been named as a defendant, some incorrectly, in each of the matters
consolidated as part of MDL 1358: Exxon Mobil Corporation, f/k/a Exxon Corporation; Exxon

Mobil Corporation, d/b/a ExxonMobil Refining and Supply Company, Exxon Chemical U.S.A.,
Exxon Company, U.S.A, ExxonMobil Chemical Corporation and/or ExxonMobil Chemical
U.S.A.; Exxon Mobil Chemical Company; ExxonMobil Oil Corporation; Exxon Mobil Sales and
Supply LLC; Exxon Caribbean Sales Inc.; ExxonMobil Oil Corporation, f/k/a Mobil Oil
Corporation, Socony Mobil Oil Company, Inc., and Socony Vacuum Oil Company,
Incorporated; ExxonMobil Pipeline Company; Mobil Corporation; Mobil Oil Corporation; and
Esso Standard Oil Company (Puerto Rico). For ease of reference only, the foregoing defendants
referred to collectively herein as “ExxonMobil.” To the extent proper entities are named, Exxon
Mobil Corporation is the ultimate corporate parent of each of these entities. To the extent
plaintiffs’ complaints assert or purport to assert claims against these entities as separate and
distinct corporate entities, this Answer constitutes their response.

ADMISSIONS AND STATEMENTS REGARDING SELECT ALLEGATIONS
Basic Defendant Information
2.

Exxon Mobil Corporation (“ExxonMobil”), formerly known as Exxon

Corporation (“Exxon”), is a New Jersey corporation with its principal place of business in Irving,
Texas.
3.

Some of the complaints in MDL 1358 assert claims against ExxonMobil

Chemical Company, others do not. ExxonMobil states that ExxonMobil Chemical Company is
an unincorporated division of Exxon Mobil Corporation.
4.

Some of the complaints in the MDL 1358 matters assert claims against

ExxonMobil Oil Corporation, others do not.

ExxonMobil states that ExxonMobil Oil

Corporation is a New York corporation with its principal place of business in Irving, Texas. One
hundred percent of the stock of ExxonMobil Oil Corporation is owned by Mobil Corporation.
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5.

Some of the complaints in the MDL 1358 matters assert claims against Esso

Standard Oil Company (Puerto Rico). ExxonMobil states that Esso Standard Oil Company
(Puerto Rico) is wholly owned by Esso Caribbean Investments Limited.
6.

Some of the complaints in the MDL 1358 matters assert claims against Mobil

Corporation, others do not. ExxonMobil states that Mobil Corporation is a Delaware corporation
with its principal place of business in Irving, Texas. Mobil Corporation is wholly owned by
Exxon Mobil Corporation.
Sale, Distribution and/or Supply of Gasoline with MTBE or TBA to States in Question
7.

ExxonMobil admits that ExxonMobil, Exxon, Esso Standard Oil Company

(Puerto Rico) and/or Mobil has produced, delivered and/or supplied gasoline (for one or more
time periods between 1979 and the date of the filing of the complaints) to at least a portion of
one or more of the following states (in which one or more of the plaintiffs have pending cases in
MDL 1358 for which an answer is presently required):

California, New Jersey, and the

Commonwealth of Puerto Rico.
Allegations Regarding Production of MTBE or TBA
8.

ExxonMobil states that it understands the allegations in the complaint about the

production of “neat MTBE” to mean commercial fuel grade MTBE containing at least 95
volume percent MTBE. ExxonMobil further states that it operates or has operated MTBE
manufacturing units as part of the Beaumont, Texas, Baytown, Texas, Baton Rouge, Louisiana
and SAMREF Yanbu, Saudi Arabia refiners. Further, ExxonMobil states that while these units
have manufactured MTBE for gasoline blending, the MTBE may not have the purity to qualify
as “neat MTBE.” ExxonMobil further states that it operated an MTBE manufacturing unit at its
Benicia, California refinery until the time of the merger between Exxon and Mobil. This unit

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manufactured MTBE for gasoline blending, however, its MTBE may not have had the purity to
qualify as “neat MTBE.”
9.

ExxonMobil also states that prior to the merger of Exxon Corporation and Mobil

Corporation on November 30, 1999, the former Exxon Corporation (“Exxon”) manufactured
MTBE at its Baytown, Texas, and Baton Rouge, Louisiana refineries. ExxonMobil further states
that Exxon owned and operated an MTBE plant at its Baytown refinery beginning in 1993. This
plant manufactured MTBE for gasoline blending, however the MTBE manufactured at the
Baytown may not have had the purity to qualify as “neat MTBE.” Exxon also owned and
operated an MTBE plant at its Baton Rouge refinery beginning in 1992.

This plant

manufactured MTBE for gasoline blending, however, the MTBE manufactured at its Baton
Rouge refinery may not have had the purity to qualify as “neat MTBE.” Further, Exxon owned
and operated an MTBE manufacturing unit at its Benicia, California refinery from 1994 until the
time of the merger between Exxon and Mobil. This unit manufactured MTBE for gasoline
blending, however, the MTBE manufactured at Benicia may not have had the purity to qualify as
“neat MTBE.”
10.

ExxonMobil also states that prior to the merger of Mobil Corporation with

Exxon’s subsidiary on November 30, 1999, the Mobil Corporation (“Mobil”) had an MTBE
manufacturing unit as part of its Beaumont, Texas refinery. This unit manufactured MTBE for
gasoline blending, however, the MTBE may not have had the purity to qualify as “neat MTBE.”
Further, Mobil also owned an interest in the SAMREF Refinery in Yanbu, Saudi Arabia which
had an MTBE manufacturing unit as part of its refinery operations. This unit manufactured
MTBE for gasoline blending, however, the MTBE may not have had the purity to qualify as
“neat MTBE.”

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11.

ExxonMobil states that Esso Standard Oil (Puerto Rico) did not manufacture

“neat MTBE” or “neat TBA”, nor did it refine gasoline.
12.

ExxonMobil states that Exxon Corporation, Mobil Corporation and/or Exxon

Mobil Corporation did not manufacture “neat TBA” for use as a gasoline blending component.
Allegations Regarding Properties and Behavior of MTBE
13.

ExxonMobil admits that MTBE is an aliphatic ether that does not occur naturally.

ExxonMobil admits that there are various methods for the production of MTBE and that one
method of production is from methanol and isobutylene.
14.

ExxonMobil states that solubility and mobility are relative properties and that

while MTBE and other ethers may be more soluble and mobile in water than certain gasoline
components, such as the BTEX compounds, they are less soluble and mobile in water than other
components sometimes blended into gasoline, such as ethanol. ExxonMobil further states that
MTBE’s behavior in the environment – and its behavior relative to BTEX – is dependent on a
variety of factors, including the nature or method of its release, the magnitude of its release, the
geological setting, and environmental and microbial factors.
15.

ExxonMobil states that while under certain conditions MTBE may biodegrade

less readily than some other components of gasoline, MTBE has been found to naturally
attenuate and biodegrade in numerous ways.
Allegations Regarding Properties and Behavior of TBA
16.

ExxonMobil admits that TBA is the product of the hydrolysis of isobutylene.

ExxonMobil admits that TBA can be an intermediate product of MTBE biodegradation.
17.

ExxonMobil states that solubility and mobility are relative properties and that

TBA is more soluble and mobile in water than certain gasoline components, such as the BTEX
compounds.

ExxonMobil further states that TBA’s behavior in the environment – and its
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behavior relative to BTEX – is dependent on a variety of factors, including the nature or method
of its release, the magnitude of its release, the geological setting, and environmental and
microbial factors.
Allegations Regarding Taste and Odor
18.

ExxonMobil admits that individuals vary in their ability to detect the taste and

odor of MTBE and TBA in water. ExxonMobil states that various federal and state regulatory
agencies have considered and adopted standards fully protective of MTBE taste and odor
concerns.
Allegations Regarding Health Effects of MTBE
19.

Plaintiffs’ allegations of dire human health concerns from MTBE are

unsubstantiated. MTBE has been studied publicly by scientists and government agencies for
more than 30 years. MTBE has never been reliably linked to cancer, and there is no consensus in
the scientific field that it is carcinogenic; indeed, major world health organizations have long
refused to list MTBE as a human carcinogen. ExxonMobil admits that EPA has in the past
classified MTBE as a possible human carcinogen. Further, ExxonMobil states that federal and
state regulatory agencies have considered, adopted, and enforced standards fully protective of
any alleged health concerns related to MTBE.
Allegations Regarding Storage and Handling of Gasoline
20.

ExxonMobil admits that it is commonly known that gasoline is sometimes

released into the environment from USTs and other means, and states that it and, according to
reports, other major oil companies have spent hundreds of millions of dollars or more over the
past 30-plus years to eliminate or reduce leaks and to improve leak detection, and that the federal
and various state governments have also enacted laws and engaged in enforcement efforts to
eliminate or reduce leaks. ExxonMobil states that it is aware that reasonable adults understand
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that gasoline should be handled carefully and should not be spilled as the risk of contamination is
obvious.
Allegations Regarding Knowledge of MTBE Contamination at Particular Locations In
1980s
21.

The complaints purport to describe various publicly reported incidents of MTBE

contamination in New Jersey, New York and Maine in the 1980s. ExxonMobil states that it was
widely known among federal and state government regulators in the 1980s that various incidents
involving MTBE contamination – including the ones plaintiffs’ complaints regularly list – had
occurred.
22.

ExxonMobil admits that in the early 1980s there was publicity regarding a

contamination event in Rockaway, New Jersey, that did not directly involve ExxonMobil.
ExxonMobil admits that it is aware of certain release events in New York, some of which
involved MTBE.
23.

ExxonMobil admits that the 1986 Garrett and Moreau paper described MTBE

presence in certain wells in Maine. ExxonMobil admits that information about MTBE was
known to federal and state governments and the scientific community, as the 1986 Garrett and
Moreau paper illustrates.
Allegations Regarding Participation In Industry Associations or Lobbying Activities
24.

The chemical properties of ethers like MTBE have been known in the public

arena for many, many years. Plaintiffs’ claim that Defendants somehow hid this information
from them, or from the U.S. government, is baseless. ExxonMobil denies that it had any
agreement with any other defendant to withhold from plaintiffs or government regulators
information concerning MTBE.

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25.

ExxonMobil admits that prior to 1990, Congress was preparing to take action to

address the Nation’s air pollution problem.

ExxonMobil admits that federal government

agencies were aware of MTBE’s chemical characteristics in 1986 or earlier, and that EPA held
public meetings about MTBE in 1986. ExxonMobil admits that it, like the federal government,
was aware of the Garrett and Moreau paper in or about 1986. ExxonMobil admits that Exxon
Corporation participated in an American Petroleum Institute (“API”) committee called the
Toxicology Committee. ExxonMobil admits that a Testing Consent Order was entered with EPA
in or about 1988 by various major oil companies.
26.

Some complaints contain allegations about certain defendants’ membership in the

American Petroleum Institute (“API”), the Oxygenated Fuels Association (“OFA”) and the
MTBE Committee, and others do not. ExxonMobil admits that Exxon Corporation, Exxon
Mobil Corporation, Mobil Corporation and Mobil Oil Corporation were members of the API at
some point during the period from January 1, 1980, to the date of the filing of the complaints.
ExxonMobil further admits that Exxon Chemical Company was a member of the MTBE
Committee at some point during the period from January 1, 1980, to the date of the filing of the
complaints.

ExxonMobil denies that the API, Ad Hoc MTBE Group, OFA, and MTBE

Committee were agents of ExxonMobil and that statements made by these groups are attributable
to ExxonMobil. As to these allegations as they pertain to other defendants, no answer from
ExxonMobil is required.
27.

In response to plaintiffs’ allegation that Congress adopted the Reformulated

Gasoline (RFG) Program as part of the 1990 Amendments to the Clean Air Act “[a]s a result of
tremendous lobbying efforts by the industry, including Defendants,” ExxonMobil denies the

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allegation, as stated, and states that many major oil companies in fact actively resisted the RFG
Program’s requirement of oxygen content levels.
Allegations Regarding Requirements and Effects of the 1990 Clean Air Act Amendments
28.

ExxonMobil states that although the 1990 Clean Air Act Amendments (“CAAA”)

did not literally require use of MTBE as a gasoline additive, in practical terms the CAAA
certainly did compel MTBE’s use. EPA and Congress knew that the oxygen requirements of the
Act could not and would not be met without MTBE’s use.
29.

ExxonMobil states that beginning in the late 1970s, following the U.S. EPA’s

mandate to reduce lead in gasoline, most U.S. refiners began evaluating oxygenates and octane
enhancers such as ethanol and MTBE. In the mid-1980’s, ExxonMobil, at various times, in
various locations, added octane enhancers to some gasoline in small amounts to address the
government mandated lead phase-out. In 1990, with the amendments to the Clean Air Act, the
federal government mandated an increase in the use of oxygenates (up to 2.7% oxygen content)
to meet ambient carbon monoxide air requirements in winter gasoline in many cities (beginning
in 1992). In 1995, various oxygenates were extended by regulation to year-round use for severe,
non-attainment ozone areas in the United States. Reformulated gasolines used since that time
have sometimes contained between 10% and 15% MTBE, or up to 10% ethanol, to meet
government mandates on oxygenate content.
30.

ExxonMobil denies that ethanol was available in sufficient supply to meet the

demand for oxygenated gasoline in the RFG and oxyfuel regions when the Amendments
requiring 2% oxygen content in year-round gasoline in areas using RFG became effective.
31.

ExxonMobil admits that when it refined crude oil, owned refineries, and made

gasoline, it complied with the legal requirements of the lead phase-out, the RFG Program and the

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Oxygenated Fuel Program. ExxonMobil further states that several government agencies have
concluded that MTBE has contributed substantially to reducing air pollution.
Allegations Regarding MTBE-Related Actions Taken By State or Federal Governmental
Bodies
32.

ExxonMobil admits that in 2001, EPA provided advance notice of its intent to

initiate a rulemaking pursuant to the Toxic Substances Control Act (“TSCA”) to eliminate or
limit the use of MTBE as a fuel additive. No such rulemaking was ever initiated. ExxonMobil
admits that certain proposed legislation in the U.S. Congress would have limited the use of
MTBE in gasoline. Further, ExxonMobil admits that certain state legislatures or regulatory
bodies have passed laws or adopted regulations to limit or eliminate the use of MTBE in
gasoline. The details of such laws are a matter of public record.
33.

Some complaints contain certain allegations relating to TSCA, 15 U.S.C. §

2607(e), and others do not. ExxonMobil admits that it received the Notice attached as Exhibit B
to those Plaintiffs’ complaints. ExxonMobil denies that it has a duty to report information
requested in the Advanced Notice of Proposed Rulemaking (“ANPRM”) in 65 Fed. Reg. 16094.
ExxonMobil denies that it has information reasonably supporting the conclusion that MTBE and
containing gasoline MTBE present a substantial risk of injury to health or the environment.
Allegations Regarding Plaintiffs’ Claimed Inability To Identify Relevant Sources of
Gasoline Leaks Or Spills Affecting a Given Site
34.

Gasoline leaks, whether containing MTBE or not, are almost always traceable to a

specific source; limited to the immediate geographic area of the source; and remediable. In the
vast majority of leak incidents, a responsible party can be and is identified.
35.

ExxonMobil denies that gasoline can never be traced from a contamination site to

its terminal or refinery source.

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Allegations Regarding Business Practices
36.

Some complaints contain allegations that defendants engaged in deceptive or

unfair trade practices, and others do not. ExxonMobil denies that it has engaged in any conduct
or practice that is or was deceptive, misleading fraudulent, or unfair. ExxonMobil further denies
that it has deceived, mislead, or defrauded any governmental agency, customer, or consumer.
Allegations Regarding Intent
37.

Some complaints contain allegations that defendants acted knowingly, willfully,

maliciously and/or wantonly. ExxonMobil denies all such allegations.
Allegations Purporting To Quote Or Summarize Documents
38.

Numerous paragraphs in each complaint purport to quote from or summarize

documents, statutes and regulations.

These written materials speak for themselves.

The

documents, statutes and regulations referenced by plaintiffs, which are not attached to the
complaints, are the best evidence of their content, and therefore ExxonMobil denies plaintiffs’
attempts to summarize or characterize the contents of these written materials.

Allegations Regarding Defendants Unrelated To ExxonMobil
39.

ExxonMobil 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 defendants unrelated to ExxonMobil and therefore denies same.
Allegations Regarding Particular Claims or Counts
40.

In response to the portions of the complaints purporting to state particular

common law or statutory claims, ExxonMobil incorporates each paragraph of this Master
Answer as if fully restated herein. ExxonMobil denies it is liable for any legal claim in any
MDL 1358 complaint.

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Allegations Regarding Claimed Injuries or Damages
41.

Some complaints contain allegations about contamination to specific wells and

release locations, and others do not. ExxonMobil is without knowledge or information sufficient
to form a belief as to the truth of the matters averred in the complaints regarding specific
incidents of alleged contamination and therefore denies same. ExxonMobil believes publicly
available documents regarding plaintiffs will demonstrate that many of the wells at issue have
not been impacted by MTBE, or have been impacted only at levels well below state action
standards for MTBE. To the extent a response is required, ExxonMobil denies the allegations.
42.

With regard to alleged damages, the allegations require no further answer. To the

extent that further answer is deemed necessary, ExxonMobil admits that plaintiffs seek the relief
mentioned in the complaints, but denies that it is appropriate for plaintiffs to do so factually or
legally and denies that plaintiffs are entitled to any relief.
Plaintiffs’ Demands for Jury Trials
43.

Plaintiffs in all actions have demanded a trial by jury of all claims asserted in the

complaints. These jury demands require no answer. To the extent any answer is deemed
necessary, ExxonMobil admits that the plaintiffs demand jury trials, but denies that they are
entitled to them.
Plaintiffs’ Allegations of Representational Standing
44.

Certain California plaintiffs’ complaints contain allegations that could be

construed to suggest that those plaintiffs are asserting a right to bring claims in a representational
capacity.

The Orange County Water District clarified that it was not asserting such rights.

Thereafter, by orders dated June 9 and 22, 2005, the Court either struck all such allegations by
plaintiffs that had asserted them or confirmed that such plaintiffs were not asserting them. On

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the basis of these Court orders, ExxonMobil declines to answer these allegations. To the extent
an answer is deemed necessary, ExxonMobil denies that any plaintiff has standing to bring
claims in a representational capacity.
Certain Plaintiffs’ Allegations of Ownership of the Groundwater Resources
45.

To the extent plaintiffs allege that they own or have the authority to protect

groundwater, groundwater resources, water resources, water supplies, water rights, or drinking
water wells, or any other right in and to surafce water or groundwater, ExxonMobil denies these
allegations and denies that these plaintiffs have standing to bring any claim based on allegations
of injury to surface water, groundwater or property damage.
Certain Plaintiffs’ Allegations of Injury to Natural Resources
46.

Certain plaintiffs’ complaints contain allegations of damage to natural resources

and seek compensation and other relief as the alleged trustee and/or owner of those natural
resources. ExxonMobil admits that groundwater, surface waters, wetlands and other ecological
resources exist within the States and Commonwealth at issue in MDL 1358 (“MDL States”);
admits that some of those resources are privately owned and some are not; admits that some
natural resources may provide commercial, industrial, recreational, and other services to the
people of the MDL States and to the economies of the MDL States.
47.

ExxonMobil further admits that the police power of certain Plaintiffs extends to

the protection and conservation of certain natural resources which are not the private property of
any person or entity; admits that by a longstanding legal fiction this proposition is sometimes
inexactly expressed by saying that a State is the owner or trustee of natural resources for the
benefit of its people or citizens; admits that certain governmental agencies have limited
regulatory authority with respect to natural resources within an MDL state as provided by law.

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Regulatory Powers of Other Agencies
48.

Certain California plaintiffs allege that they are entitled to assert claims to protect

groundwater resources or the environment without regard to any impact on water supply wells
owned or operated by them. ExxonMobil denies that these plaintiffs possess any such right.
ExxonMobil further alleges that, pursuant to statutes duly enacted by the California legislature,
state agencies that are not parties to these lawsuits have been delegated the power and authority
to (1) determine what maximum levels of contaminants, including MTBE and/or TBA, are
permissible in potable water distributed in California and (2) manage activities to investigate,
delineate, remediate and cleanup actual or suspected MTBE and/or TBA contamination,
including determining when sufficient cleanup has been achieved.
California Civil Code Section 1882 Claims
49.

Certain California plaintiffs have alleged causes of action and/or prayers for treble

damages and attorneys’ fees based on California Civil Code § 1882 et seq. By order dated May
31, 2005, the Court dismissed and struck these allegations from the complaints. On the basis of
the Court order, ExxonMobil declines to answer these allegations. To the extent any answer is
deemed necessary, ExxonMobil denies that any plaintiff is entitled to recovery under California
Civil Code § 1882 et seq.
GENERAL DENIAL OF REMAINING ALLEGATIONS
50.

ExxonMobil denies the remaining allegations in the complaints in MDL 1358

cases for which an answer is presently required, and in which it has been properly named and
served.
RESERVATION OF RIGHT TO AMEND
51.

ExxonMobil reserves the right to amend this Master Answer.

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AFFIRMATIVE DEFENSES APPLICABLE TO ALL CASES
For its separate defenses to the complaints in the MDL 1358 cases for which an answer is
presently required, and in which it has been properly named and served, ExxonMobil states as
follows:
52.

Plaintiffs’ claims are barred in whole or in part by the doctrine of federal

preemption.
53.

Plaintiffs’ claims are barred in whole or in part because at all relevant times,

ExxonMobil’s actions and its products complied with and were undertaken pursuant to
applicable federal, state, and local laws, rules, regulations and specifications.
54.

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 ExxonMobil.
55.

All acts and conduct of ExxonMobil, 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 material times alleged in the complaints.
56.

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 these matters
pursuant to the doctrine of primary jurisdiction.
57.

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 these matters
based upon the doctrine of separation of powers.

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58.

Plaintiffs have failed to exhaust their administrative remedies.

59.

Plaintiffs have a plain, common, adequate and speedy remedy at law.

The

equitable causes of action alleged in the complaints are thus barred.
60.

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 unconstitutional given that
Congress, through Section 211 of the CAA, authorized the EPA, and not the courts, to perform
the cost-benefit analysis.
61.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which ExxonMobil denies,
ExxonMobil alleges that such hardship is outweighed by the convenience and public service
rendered by ExxonMobil’s actions.
62.

Each purported cause of action asserted in the complaints is barred under the

doctrine of primary assumption of 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 as a gasoline oxygenate.
63.

To the extent that plaintiffs have received or may receive some or all of the

requested relief from a governmental agency, ExxonMobil asserts its entitlement to an
appropriate set-off or reduction of any judgment against it.
64.

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.

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65.

The claims set forth in the complaints fail, in whole or in part, based on the

doctrine of election of remedies.
66.

Each purported cause of action of the complaints as applied to ExxonMobil 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.
67.

The complaints fails to state a claim upon which relief may be granted and

should, therefore, be dismissed pursuant Fed. R. Civ. P. 12(b)(6).
68.

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.
69.

Plaintiffs’ claims for natural resource damages, including restoration, are not ripe

to the extent that ExxonMobil still is conducting and paying for remediation or there is another
entity that is paying for remediation.
70.

Plaintiffs’ claims are not ripe to the extent they seek recovery for any activity to

be undertaken in the future at sites where response actions are currently underway or where
contamination has not been detected at present.
71.

ExxonMobil’s conduct was not the cause in fact or proximate cause of any

injuries alleged by plaintiffs.
72.

Plaintiffs have failed to state a cause of action for nuisance because they have

neither alleged nor suffered any particularized injury and because ExxonMobil’s alleged conduct
does not constitute an interference with a right common to the general public.

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73.

The alleged injuries and damages, if any, suffered as a result of conduct legally

attributable to ExxonMobil is de minimis and therefore any injunction would pose a
disproportionate hardship on ExxonMobil, 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 as to ExxonMobil as a matter of law.
74.

Plaintiffs do not have a legally cognizable injury because the alleged MTBE

and/or TBA contamination does not exceed state action levels.
75.

Plaintiffs may not seek attorneys’ fees as an element of relief.

76.

Plaintiffs have failed to properly present any claim for attorneys’ fees.

77.

Some 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.
78.

Because plaintiffs have sued multiple parties, under multiple causes of action,

with divisible damages, the claim for attorneys’ fees, if appropriate, must be proportioned
between same.
79.

The claims set forth in the complaints are barred, in whole or in part, by the

mootness doctrine.
80.

The complaints and each purported cause of action are barred, in whole or in part,

by the defense of laches. Plaintiffs’ unreasonable and inexcusable delay in filing these actions
caused substantial prejudice to ExxonMobil.
81.

The complaints and each purported cause of action are barred, in whole or in

party, by the doctrine of unclean hands.

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82.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of limitations.
83.

The complaints and each purported cause of action are barred by the applicable

provisions of the pertinent statutes of repose.
84.

Plaintiffs are estopped by their conduct from asserting any of the purported claims

alleged against ExxonMobil in the complaints.
85.

Plaintiffs have not investigated the cause of the alleged harm or attempted to

identify the actual responsible party or parties.
86.

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, ExxonMobil denies that it contributed
to the contamination at issue.
87.

Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

88.

Plaintiffs assumed the risk of all acts, injuries, and damages that plaintiffs now

assert against ExxonMobil.
89.

ExxonMobil 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.
90.

Plaintiffs lack the capacity to sue.

91.

Plaintiffs lack standing to sue.

92.

Plaintiffs’ claims are barred because ExxonMobil’s conduct caused no physical

impact to plaintiffs’ property.

- 19 -

93.

There is a defect or misjoinder of parties, in that plaintiffs have failed to join

indispensable or necessary parties.
94.

Plaintiffs have failed to name the party or parties responsible for the alleged harm.

95.

The claims set forth in the complaints fail, in whole or in part, because of the

failure to identify which defendant, if any, proximately caused the alleged harm.
96.

Plaintiffs’ claimed injuries were caused in whole or in part by others, whose

actions were not controlled by or related to ExxonMobil. Such actions are the superseding,
supervening and/or intervening cause of plaintiffs’ injuries and therefore plaintiffs may not
recover from ExxonMobil as a matter of law.
97.

Plaintiffs’ claims must be dismissed because they have failed to identify the

particular defendant that is responsible for the harms alleged by plaintiffs.
98.

At no time did ExxonMobil exercise control over the persons or entities

responsible for actual or threatened releases of MTBE, if any, alleged in the complaints. At all
times, ExxonMobil acted with due care with respect to any petroleum or petroleum products
used and took reasonable precautions against foreseeable acts or omissions of any such third
parties and any foreseeable consequences.
99.

Plaintiffs’ claims are barred in whole or in part because plaintiff is not a user or

consumer of gasoline containing MTBE, and no injury alleged is the result of using or
consuming gasoline containing MTBE.
100.

ExxonMobil did not own, control or release any of the petroleum products that are

alleged to have caused or threatened contamination of wells, groundwater, or other locations for
which relief is sought in the complaints.

- 20 -

101.

Any ExxonMobil gasoline product sold or distributed for resale was properly

designed, formulated, prepared and otherwise not defective in any respect.
102.

To the extent required, ExxonMobil provided proper warnings, information, and

instructions relating to its products pursuant to generally recognized and prevailing standards in
existence at the time.
103.

Plaintiffs have failed to allege that ExxonMobil’s alleged failure to provide an

adequate warning proximately caused their injuries.
104.

Any gasoline product containing MTBE manufactured, sold, or distributed for

resale by ExxonMobil was not unreasonably dangerous when made.
105.

The plaintiffs’ claims against ExxonMobil are barred by the bulk supplier

doctrine.
106.

ExxonMobil sold its products to knowledgeable and sophisticated purchasers, and

any injury alleged by plaintiffs was caused by such purchasers’ failure to observe known
standards of care.
107.

Any injury, damage or loss sustained by the plaintiffs was proximately caused by

and/or contributed to by their own negligence, carelessness, and/or omissions.
108.

Plaintiffs’ claims are barred pursuant to the learned or sophisticated intermediary

doctrine.
109.

If any damages or injuries alleged in the complaints occurred because of leaks in

the gasoline storage tanks and associated piping, ExxonMobil 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.

- 21 -

110.

Plaintiffs’ claims are barred to the extent they seek any relief inconsistent with the

applicable State or Federal regulatory schemes for addressing releases of contamination.
111.

Plaintiffs’ nuisance claims should be dismissed because there were no acts or

omissions by or on behalf of any of the defendants constituting an intentional, unreasonable
interference with the plaintiffs’ interest in the use and enjoyment of their life or property.
112.

Plaintiffs’ public nuisance claims must be dismissed because plaintiffs’ have

failed to allege “special damages,” an absolute prerequisite to the assertion of a public nuisance
claim.
113.

Plaintiffs’ nuisance claims must be dismissed to the extent premised on

ExxonMobil’s manufacture or distribution of MTBE or MTBE gasoline.
114.

ExxonMobil alleges that it owed no duty of care to plaintiffs in connection with

the matter alleged in the complaints.
115.

The complaints fail to plead the elements of negligence claims with sufficient

clarity, specificity, and particularity.
116.

Plaintiffs’ claims are barred to the extent the conduct complained of is protected

by the First Amendment to the United States Constitution.
117.

The complaints and each cause of action are barred based on ExxonMobil’s valid

exercise of the right of petition to the federal government, state government(s), and/or their
respective deliberative bodies and agencies.
118.

Plaintiffs’ claims are barred, in whole or in part, based on plaintiffs’ actual or

constructive notice of reported spills or releases, if any, from publicly available records.
119.

There is no legal relationship upon which any duty could possibly be owed by

ExxonMobil to plaintiffs, and therefore, plaintiffs’ causes of action fail as a matter of law.

- 22 -

120.

The injuries and damages, if any, alleged by plaintiffs are caused in whole or in

part to the presence of compounds other than MTBE (e.g., the BTEX compounds). Under
plaintiffs own legal theories, ExxonMobil is not liable for damages caused by compounds other
than MTBE.

In the event liability is assessed against ExxonMobil, such liability must be

reduced where, and to the extent that, other compounds – about which plaintiffs do not complain
– contributed to the alleged injury.
121.

ExxonMobil is not liable for contamination 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).
122.

Any injury, damage or loss sustained by the plaintiffs in connection with the

subject matter of this action was not reasonably foreseeable.
123.

Plaintiffs have failed to state a claim for trespass because they have neither

alleged nor suffered an invasion of an exclusive possessory interest in the alleged damaged
property, nor did ExxonMobil act with the requisite intent.
124.

Plaintiffs’ recovery is barred, in whole or in part, due to their contributory or

comparative fault.
125.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which ExxonMobil denies,
ExxonMobil alleges that any award of damages shall be reduced in proportion to the percentage
of fault attributable to the plaintiffs.
126.

If it is determined that plaintiffs or anyone on whose behalf plaintiffs are

allegedly suing, was injured, as set forth in the complaints, which ExxonMobil denies,

- 23 -

ExxonMobil 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 entities responsible
for gasoline leaks or spills).
127.

The injuries alleged in the complaints, if any, may be reasonably apportioned

among the defendants, as each defendant’s alleged acts and omissions, including ExxonMobil’s,
is divisible and distinct. Therefore, no defendant is jointly and severally liable to plaintiffs for
any claim alleged in the complaints.
128.

Plaintiffs’ alleged injuries, if any, resulted from the mishandling or misuse of the

product by the plaintiffs or other persons, and such misuse was not reasonably expected by
ExxonMobil at the time that it sold or otherwise conveyed the product to the other party.
129.

Plaintiffs have unreasonably failed to mitigate their damages, if any.

130.

To the extent that any party has settled or may settle in the future with plaintiffs or

any person on whose behalf plaintiffs purport to sue, ExxonMobil asserts its entitlement to an
appropriate credit or reduction of any judgment(s) against it, or plaintiffs lack standing to sue for
such claims or damages.
131.

Plaintiffs’ claims for failure to warn are barred to the extent they seek to impose a

duty to warn the plaintiffs in their sovereign capacity or as a regulator, as no such duty exists and
any such claim violates separation of powers and justiciability principles as well as the doctrine
of freedom of speech.
132.

Plaintiffs’ claims for failure to warn are barred because ExxonMobil has no duty

to warn the general public.
133.

Plaintiffs’ claims are barred by principles of due process and separation of

powers, as the judiciary’s retroactive imposition of state law tort liability for use of MTBE

- 24 -

conflicts with the actions and decisions of both the United States’ and plaintiffs’ legislative and
executive branches of government – including, but not limited to, approval for the use of MTBE;
creation of the reformulated gasoline program; decisions to opt-in and/or remain in the
reformulated gasoline program; creation and implementation of state funding mechanisms to
address gasoline releases, including releases of gasoline containing MTBE; and the
implementation of any decisions to ban MTBE.
134.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process as not all
gasoline contains or contained MTBE and not all gasoline is fungible.
135.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process to the
extent any market share of gasoline fails to account for non-MTBE gasoline.
136.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process because
identification of the entity and/or entities, potentially including defendant(s), that caused
plaintiffs’ alleged injuries is possible.
137.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process due to the
time period covered in the complaints, as such time period denies ExxonMobil the ability to
present an adequate defense.
138.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process as it will
amount to the retroactive imposition of liability.

- 25 -

139.

Any attempted application of any collective liability theory, including but not

limited to market share liability, is inappropriate and violates principles of due process because
share of the market cannot reliably predict MTBE impact in the environment.
140.

Plaintiffs’ claims are barred, in whole or in part, because at all times relevant and

material to this action ExxonMobil’s conduct comported with available technological, medical,
scientific, and industrial state of the art.
141.

Plaintiffs’ claims are barred by the doctrine of due process to the extent plaintiffs

rely on statistical evidence to attempt to prove the extent of alleged contamination as the use of
such statistical evidence denies ExxonMobil the ability to present an adequate defense.
142.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages provides inadequate procedural protections against arbitrary or
erroneous awards of such damages. A state may constitutionally award punitive damages only if
the law of that state provides significant and effective procedural protections to defendants, and
the law of the MDL States do not. See Phillip Morris USA v. Williams, 549 U.S. 346, 352, 127
S. Ct. 1057, 1062 (2007) (holding that “the Constitution imposes certain limits” regarding
“procedures for awarding punitive damages,” including requiring states to implement “proper
standards that will cabin the jury’s discretionary authority” and “avoid an arbitrary determination
of an award's amount”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416417, 123 S. Ct. 1513, 1519-1520 (2003) (“It is well established that there are procedural . . .
constitutional limitations on [punitive damages] awards . . . . Although these awards serve the
same purposes as criminal penalties, defendants subjected to punitive damages in civil cases

- 26 -

have not been accorded the protections applicable in a criminal proceeding. This increases our
concerns over the imprecise manner in which punitive damages systems are administered.”)
143.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because ExxonMobil lacked adequate
notice either of the type of conduct that could warrant an award of punitive damages under the
law of the MDL States, or of the amount of such damages that could be awarded. The lack of
fair notice bars any award of punitive damages. Phillip Morris USA v. Williams, 549 U.S. 346,
127 S. Ct. 1057, 1059 (2007) (holding “unless a State insists upon proper standards that will
cabin the jury's discretionary authority, its punitive damages system may deprive a defendant of
‘fair notice of the severity of the penalty that a State may impose,’” thus violating due process);
BMW of N. Am, Inc. v. Gore, 517 U.S. 559, 574-576, 116 S. Ct. 1589, 1598 (1996) (“Elementary
notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair
notice not only of the conduct that will subject him to a penalty, but also of the severity of the
penalty that a State may impose.”); accord State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 417, 123 S. Ct. 1513, 1520 (2003).
144.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because due process requires that any
award of punitive damages bear a close relationship to appropriate civil fines or penalties
established by the legislature, or by administrative agencies under authority delegated by the
legislature. BMW of N. Am, Inc. v. Gore, 517 U.S. 559, 583-84, 116 S. Ct. 1589, 1603 (1996).
The law of the MDL States, however, fails to incorporate this due process requirement, and

- 27 -

therefore no award of punitive damages may be constitutionally made under the law of the MDL
States.
145.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because punitive damages, as
awarded in the MDL States, impermissibly discriminate against corporate defendants, including
ExxonMobil in this case, that are organized under the laws of other states and that maintain their
principal places of business in other states. Honda Motor Co. v. Oberg, 512 U.S. 415, 432, 114
S. Ct. 2331, 2341 (1994) (noting risk “that jurors will use their verdicts to express biases against
big businesses, particularly those without strong local presences”).
146.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1), by the Commerce
Clause of the United States Constitution (Article I, § 8, cl. 3), and by principles of federalism
embodied in the Constitution, to the extent that any claim is based on any conduct by
ExxonMobil that occurred outside each MDL State. No legitimate interest of the MDL States
can be served by the imposition of punitive damages based on conduct that occurred outside each
MDL State; therefore, the limitations on state power in the Due Process and Commerce Clauses
prohibit any award of punitive damages based on such conduct. See State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 409, 123 S. Ct. 1513, 1516 (2003) (“State cannot punish a
defendant for conduct that may have been lawful where it occurred. Nor, as a general rule, does
a State have a legitimate constitutional interest in imposing punitive damages to punish a
defendant for unlawful acts committed outside of its jurisdiction.”) (internal citations omitted);
see also Phillip Morris USA v. Williams, 549 U.S. 346, 347, 127 S. Ct. 1057, 1059 (2007)

- 28 -

(holding that, because of the risk that punitive damages awards can, in practice, impose one
State’s (or one jury’s) policies . . . upon other States . . . “it is particularly important that States
avoid procedure that unnecessarily deprives juries of proper legal guidance”); Healy v. Beer
Inst., 491 U.S. 324, 336, 109 S. Ct. 2491, 2499 (1989) (noting that “Commerce Clause precludes
the application of a state statute to commerce that takes place wholly outside of the State’s
borders”); Alaska Packers Ass’n v. Indus. Accident Comm’n, 294 U.S. 532, 540-41, 55 S. Ct.
518, 521 (1935) (state lacks authority “to control the legal consequences of a tortious act
committed elsewhere”); Bonaparte v. Tax Court, 104 U.S. 592, 594 (1881) (“No State can
legislate except with reference to its own jurisdiction.”).
147.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, to the extent the law of the MDL
States permits the introduction of evidence of ExxonMobil’s financial condition with respect to
the quantum of punitive damages. The introduction of such evidence violates Due Process by
inviting the jury to award an arbitrary amount of punitive damages based on ExxonMobil’s status
as an industrial enterprise. Honda Motor Co. v. Oberg, 512 U.S. 415, 432, 114 S. Ct. 2331, 2341
(1994) (“the presentation of evidence of a defendant’s net worth creates the potential that juries
will use their verdicts to express biases against big businesses, particularly those without strong
local presences”).
148.

Plaintiffs’ claims for punitive damages are barred by the Excessive Fines Clause

of the United States Constitution (Amendment VIII) and similar clauses of the Constitutions of
certain MDL States. Where Plaintiff is the State, an award of punitive damages constitutes a
“fine” subject to the Excessive Fines Clause. Under such circumstances, any amount of punitive

- 29 -

damages would be excessive and in violation of the Excessive Fines Clause. Alternatively, the
law of certain MDL States requires that a portion of any award of punitive damages be paid to
the State and, therefore, any amount of punitive damages would be excessive and in violation of
the Excessive Fines Clause.
149.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because ExxonMobil’s conduct that
is alleged to warrant punitive damages is unrelated to the Plaintiffs’ alleged harm. Punitive
damages may not be awarded to punish and deter conduct that bears no relation to the plaintiff’s
harm. Phillip Morris USA v. Williams, 549 U.S. 346, 353, 127 S. Ct. 1057, 1063 (2007) (holding
that “the Constitution’s Due Process Clause forbids a State to use a punitive damages award to
punish a defendant for injury that it inflicts upon nonparties”); State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 422-23, 123 S. Ct. 1513, 1523 (2003) (holding “defendant’s dissimilar
acts, independent from the acts upon which liability was premised, may not serve as the basis for
punitive damages.”); and id. at 423 (holding that “due process does not permit courts, in the
calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims
against a defendant under guise of the reprehensibility analysis”).
150.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages does not require that the jury be instructed upon, and make specific
findings of fact with respect to, each of the five reprehensibility factors set out in State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419, 123 S. Ct. 1513, 1521 (2003).

- 30 -

Such specific jury instructions and specific findings of fact are necessary for purposes of Due
Process in order to permit the de novo review of the quantum of any award of punitive damages
required by Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S. Ct.
1678, 1685-1686 (2001).
151.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages does not require that the jury be instructed upon, and make specific
findings of fact with respect to, the constitutional factors that govern the permissible ratio of
punitive damages to compensatory damages. State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 425, 123 S. Ct. 1513, 1524 (2003) (holding that “few awards exceeding a single-digit
ratio between punitive and compensatory damages, to a significant degree, will satisfy due
process”). Such specific jury instructions and specific findings of fact are necessary for purposes
of Due Process in order to permit the de novo review of the quantum of any award of punitive
damages required by Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121
S. Ct. 1678, 1685-1686 (2001).
152.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages does not require that the jury be instructed upon, and make specific
findings of fact with respect to, the comparable civil fine that could be imposed on the
defendant[s] for the conduct in question. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S.
408, 428 123 S. Ct. 1513, 1531 (2003) (holding that civil fines are more appropriate benchmarks

- 31 -

for punitive damages than criminal penalties); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 583,
116 S. Ct. 1589, 1603 (1996) (holding that courts “should accord substantial deference to
legislative judgments concerning appropriate sanctions for the conduct at issue.”); (O’Connor, J.,
concurring in part and dissenting in part) (quoting Browning-Ferris Industries of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 301, 109 S. Ct. 2909, 2934 (1989)); Clark v. Chrysler Corp.,
436 F. 3d 594, 607 (6th Cir. 2006) (rejecting potential for punitive damages award as a basis for
comparison in favor of potential civil penalties under applicable federal statute). Such specific
jury instructions and specific findings of fact on the comparable civil penalties are necessary for
purposes of Due Process in order to permit the de novo review of the quantum of any award of
punitive damages required by Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
436, 121 S. Ct. 1678, 1685-1686 (2001).
153.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages does not require that the jury be instructed upon, and make specific
findings of fact with respect to, the direct relationship between ExxonMobil’s conduct and the
specific injury suffered by plaintiffs. Phillip Morris USA v. Williams, 549 U.S. 346, 355, 127 S.
Ct. 1057, 1064 (2007) (holding that “the Due Process Clause requires States to provide assurance
that juries are not asking the wrong question, i.e., seeking, not simply to determine
reprehensibility, but also to punish for harm caused strangers”); State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 423, 123 S. Ct. 1513, 1523 (2003) (holding that “[D]ue process does
not permit courts, in the calculation of punitive damages, to adjudicate the merits of other
parties’ hypothetical claims against a defendant under guise of the reprehensibility analysis.”).

- 32 -

Such specific jury instructions and specific findings of fact are necessary for purposes of Due
Process in order to permit the de novo review of the quantum of any award of punitive damages
required by Cooper Indus. Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S. Ct.
1678, 1685-1686 (2001), to ensure that the award is based solely on the conduct that caused
specific injury to Plaintiff.
154.

Plaintiffs’ claims for punitive damages are barred by the Due Process Clauses of

the United States Constitution (Amendment V and Amendment XIV, § 1) and by the Due
Process Clause of the Constitutions of certain MDL States, because the law of the MDL States
governing punitive damages does not require that the jury be instructed upon, and make specific
findings of fact with respect to, the exclusion of all items of compensatory damage from the
quantum of punitive damages. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426,
123 S. Ct. 1513, 1525 (2003) (noting that “[t]he compensatory damages for the injury suffered
here . . . likely were based on a component that was duplicated in the punitive award”). Such
specific jury instructions and specific findings of fact are necessary for purposes of Due Process
in order to permit the de novo review required by Cooper Indus. Inc. v. Leatherman Tool Group,
Inc., 532 U.S. 424 (2001), to ensure that items of compensatory damages are not impermissibly
‘double-counted’ in the quantum of punitive damages.
155.

The damages sustained by Plaintiffs, if any, were the result of actions of an

independent contractor precluding any liability on the part of ExxonMobil.
156.

Plaintiffs’ claims are barred in whole or in part by Plaintiffs’ failure to comply

with applicable laws, regulations, standards and/or ordinances.
157.

Plaintiffs’ claims under TSCA are barred by the applicable provisions of the

pertinent statute of limitations, including, but not limited to, 28 U.S.C. § 2462.

- 33 -

158.

Plaintiffs’ claims under TSCA cannot be sustained because the claims are based

upon wholly past instances of conduct rather than ongoing violations.
159.

Plaintiffs cannot state a cause of action under TSCA because, at all relevant times,

ExxonMobil complied with, satisfied, and discharged any and all obligations under TSCA to
report to the EPA Administrator any information concerning the substantial risks of MTBE.
160.

ExxonMobil did not violate TSCA because, at all relevant times, ExxonMobil

fully, timely, and adequately informed the EPA Administrator of any and all information
concerning the substantial risks of MTBE in ExxonMobil’s possession, custody or control.
161.

ExxonMobil has never had any information in its possession, custody or control

which shows that MTBE actually poses a substantial risk of injury to health or the environment
such as to necessitate a report to the EPA Administrator under TSCA.
162.

Plaintiffs’ claims under TSCA are barred because, at all relevant times,

ExxonMobil has had actual knowledge that the EPA Administrator had been adequately
informed of information concerning the substantial risks of MTBE, and/or had access to such
information in publicly-available documents and other sources, including, but not limited to:
EPA studies or reports; official publications or reports published or made available to the general
public by another Federal agency; scientific publications; scientific databases; news publications;
radio or television news report broadcasts; and public scientific conferences or meetings,
including conferences sponsored or co-sponsored by the U.S. EPA or at which an EPA employee
or contractor acting on behalf of the EPA presented information.
163.

Plaintiffs’ claims under TSCA are barred, in whole or in part, because the

Advance Notice of Intent to Initiate Rulemaking under the Toxic Substances Control Act to
Eliminate or Limit the Use of MTBE as a Fuel Additive in Gasoline, which was published by the

- 34 -

U.S. EPA in the Federal Register on March 24, 2000, did not require or otherwise obligate
ExxonMobil to report to the EPA Administrator any information concerning MTBE.
164.

Plaintiffs’ claims under TSCA are barred to the extent that Plaintiffs seek to

impose civil fines or penalties upon ExxonMobil or recover monetary damages from
ExxonMobil for alleged violations of TSCA.
165.

Plaintiffs’ claims under TSCA cannot be sustained because Plaintiffs’ notice(s) to

ExxonMobil and the EPA Administrator of the alleged violations of TSCA under 15 U.S.C.
§2619 and/or 40 C.F.R. §§ 702.60-702.62 is deficient and inadequate.
166.

Plaintiffs, as non-injured parties, lack sufficient standing to assert any claims

under TSCA against ExxonMobil.
167.

Plaintiffs’ claims under TSCA are barred because Plaintiffs have failed to comply

with the statutory requirements or jurisdictional prerequisites for asserting a claim under TSCA.
168.

The damages sought by plaintiffs are wholly speculative and conjectural.

169.

Some or all of the injury or damages suffered by plaintiffs were the product of

conduct for which ExxonMobil cannot have liability to plaintiffs, since it is lawfully undertaken
by ExxonMobil and its predecessors in the exercise of their rights as owner(s) of real property.
170.

Plaintiffs’ claims for natural resource damages are barred, in whole or in part,

because plaintiffs do not own or have a trusteeship interest in the property and/or natural
resources allegedly impacted.
171.

Plaintiffs have failed to state a claim for relief against ExxonMobil under the

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et
seq. (“CERCLA”).

- 35 -

172.

Plaintiffs’ claims under CERCLA are barred, in whole or in part, by the statutory

defenses to liability provided by CERCLA.
173.

Plaintiffs’ claims under CERCLA, in whole or in part, are subject to either the

exclusive jurisdiction or the primary jurisdiction of the United States Environmental Protection
Agency (“USEPA”).
174.

Plaintiffs’ claims under CERCLA are barred and/or untimely under the applicable

provisions of the pertinent statute of limitations, including, but not limited to, 42 U.S.C. §
9613(g).
175.

To the extent any natural resources have been damaged by releases of hazardous

substances, such releases and damages occurred wholly before December 11, 1980, barring any
recovery under CERCLA.
176.

Plaintiffs’ claims under CERCLA are barred, in whole or in part, by the “innocent

purchaser” defense available under CERCLA, 42 U.S.C. § 9601(35).
177.

To the extent that any or all of the defendants are found liable under CERCLA,

joint and several liability is inappropriate as to ExxonMobil because there are distinct harms or
there is a reasonable basis for apportionment of the harms suffered.
178.

Plaintiffs’ claims under CERCLA are barred, in whole or in part, because

petroleum products, including gasoline containing MTBE, are excluded from the definition of
“hazardous substances” under CERCLA.
179.

Plaintiffs’ claims under CERCLA are barred, in whole or in part, because any past

or future costs, if any, incurred by Plaintiffs in responding to an alleged release or threatened
release of hazardous substances are inconsistent with the National Contingency Plan.

- 36 -

180.

Plaintiffs’ claims under CERCLA are barred because Plaintiffs have failed to

satisfy each and every condition precedent necessary to recover for past and/or future response
costs under CERCLA.
181.

Plaintiffs have not incurred “clean-up and removal” costs or “response costs” as

those terms are defined in the applicable statutes.
182.

Any costs allegedly incurred or to be incurred by Plaintiffs, if any, are

unreasonable, duplicative, and not cost effective and, therefore, are not recoverable under
CERCLA.
183.

Plaintiffs’ claims under CERCLA for natural resource damages are barred, in

whole or in part, because the alleged damages constitute irreversible and irretrievable
commitments of natural resources.
184.

Defendants are not liable under CERCLA based on equitable defenses including,

but not limited to, estoppel, unclean hands, laches, failure to provide opportunity to perform
cleanup, failure to notify responsible parties, and failure to list a site on the National Priorities
List.
185.

Plaintiffs have failed to state a claim for relief against ExxonMobil under the

Resource Conservation and Recovery Act of 1976, as amended (“RCRA”), 42 U.S.C. § 6901, et
seq. (“RCRA”).
186.

Plaintiffs’ claims under RCRA are barred to the extent plaintiffs seek relief for

conduct occurring or damages incurred prior to the effective date of RCRA.
187.

MTBE is not a hazardous waste or solid waste as those terms are currently

defined by RCRA and applicable regulations and guidance.

- 37 -

188.

Plaintiffs’ claims under RCRA are barred because plaintiffs have failed to comply

with the jurisdictional prerequisites for bringing a claim under RCRA.
189.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of unjust

enrichment.

This defense includes that Plaintiff will be unjustly enriched and/or will

impermissibly double recover if Plaintiff is awarded remediation or restoration costs for sites at
which ExxonMobil has paid or is paying for such remediation or restoration. This defense also
includes that Plaintiff will be unjustly enriched by recovering costs from ExxonMobil where a
state or federal authorized fund already exists to address response action pertaining to the release
of gasoline, including gasoline containing MTBE.
190.

Plaintiffs’ claims of negligence and strict liability are barred in whole or in part by

the economic loss rule.
191.

Plaintiffs’ claims are or may be barred in whole or in part to the extent that

Plaintiffs have released, settled, entered into an accord and satisfaction with respect to, or
otherwise compromised their claims.
192.

ExxonMobil reserves the right to assert additional defenses that may be pertinent

to Plaintiffs’ claims when the precise nature of said claims are ascertained through discovery and
based on facts developed as this matter progresses.
193.

ExxonMobil incorporates by reference any affirmative defense, whether general

or specific to a specific State, alleged by other defendants in MDL 1358. ExxonMobil further
incorporates by reference any affirmative defense listed in a state section, below, to the extent
also applicable generally.

- 38 -

194.

The pleading of the defenses described herein shall not be construed as an

undertaking by ExxonMobil of any burden which would otherwise be the responsibility of
plaintiffs.
AFFIRMATIVE DEFENSES APPLICABLE TO PARTICULAR STATES
For its separate defenses to the complaints in the MDL 1358 cases from particular states
(for which an answer is presently required, and in which ExxonMobil has been properly named
and served), ExxonMobil states as follows:
CALIFORNIA
195.

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, California Code of
Civil Procedure §§ 337, 337.1, 337.2, 337.15, 338, 340, 340.8, and 343.
196.

California Civil Code §§ 1431.1 through 1431.5, commonly known as

“Proposition 51,” provide that the liability of each defendant for non-economic damages, if any,
shall be several only and shall not be joint, and ExxonMobil therefore asserts that each defendant
may be held liable only for the amount of non-economic damages, if any, allocated to that
defendant in direct proportion to its percentage of fault, if any.
197.

ExxonMobil alleges that its liability, if any, for non-economic loss be pro rated

according to the provisions of California Civil Code § 1431.2.
198.

The complaints and each purported cause of action are barred because Plaintiffs

and/or their predecessors-in-interest and assignors are guilty of unclean hands due to, among
other things, taking actions that have increased and/or prolonged the contamination of the aquifer
with MTBE and/or other contaminants.

- 39 -

199.

Plaintiffs’ claims fail, in whole or in part, based on the doctrine of unjust

enrichment.
200.

As to each cause of action in the complaints, ExxonMobil alleges that the release

of MTBE and/or hazardous substances, if any, and the damages resulting therefrom, if any, were
caused by an act of God.
201.

The complaints and each purported cause of action are barred because they are

ambiguous and uncertain.
202.

Plaintiffs did not reasonably rely on any representation, disclaimer, warning, or

other act or omission of ExxonMobil.
203.

ExxonMobil had no duty to warn plaintiffs or third parties about the potential

dangers, if any, of the product or products manufactured, packaged, labeled, used, applied and/or
removed by said third parties.
204.

ExxonMobil had no duty to warn because the risks of injury and damages

inherent in utilizing the products described in the complaints, if any, were open, obvious, known
and/or knowable.
205.

Any express or implied warranties alleged by plaintiffs to have been made by

ExxonMobil, if made at all, were expressly disclaimed and excluded by product labels, pursuant
to the laws of the State of California, which provided that ExxonMobil made no warranties,
express or implied, concerning the products or the use of said products that extended beyond the
description on the label, and that all statements made concerning said products applied only
when used as directed.

- 40 -

205.

Plaintiffs are sophisticated water purveyors or managers and were, at all relevant

times, fully aware of the nature and risks of injury and damages described in the complaints that
could arise in the operations or management of a public drinking water supply system.
206.

If there was a less dangerous alternate design, without admitting that there was

and without assuming the burden of proof on this issue, ExxonMobil did not and could not have
known of such an alternate design at the time.
207.

If there was a less dangerous alternate design, without admitting that there was

and without assuming the burden of proof on this issue, such an alternate design was not feasible
at the time.
208.

If ExxonMobil provided the products alleged to have been defective, and without

admitting that it did so or that any product was defective and without assuming the burden of
proof on these issues, the products were misused or abused by others without the knowledge or
consent of ExxonMobil and in a manner not reasonably foreseeable by ExxonMobil prior to its
receipt of notice of the circumstances described in the complaints. Such misuse or abuse was the
sole cause of or a contributing cause to the injuries, losses, and/or damages, if any, suffered by
Plaintiffs as alleged in the Complaint, and by reason thereof, Plaintiffs are barred from
recovering some or all of any damages suffered.
209.

ExxonMobil is not liable for any alleged wrongful entry upon land because

plaintiffs and/or plaintiffs’ predecessors in interest or assignors expressly or impliedly consented
to or had knowledge of all such activities or conditions.
210.

ExxonMobil alleges that to the extent plaintiffs are claiming damages for the cost

of remediation due to plaintiffs’ alleged compliance with primary or secondary drinking water
standard or other regulations enacted by the State of California or any other governmental body,

- 41 -

those claims are unconstitutional because they constitute an ex post facto application of a
regulation disallowed by Art. 1, sec. 9 of the U.S. Constitution.
211.

The complaints and each purported cause of action are barred, in whole or in part,

by federal and state law, including but not limited to, the Supremacy Clause of the United States
Constitution, U.S. Const. art. VI, cl. 2; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601, et seq.; and rules, regulations, and decisions there
under.
212.

ExxonMobil alleges that the maximum contaminant level or other drinking water

standard, to the extent they form the bases of plaintiffs’ claims against ExxonMobil was/were
arbitrarily and unreasonably enacted without due process and, therefore, cannot be enforced
against ExxonMobil.
213.

The complaints and each purported cause of action are barred to the extent that

federal and/or California state agencies have exonerated ExxonMobil and/or determined that any
ExxonMobil facility did not contribute to the presence of MTBE in the relevant groundwater for
which plaintiffs are asserting damages.
214.

The complaints and each purported cause of action are barred because plaintiffs

do not own or have abandoned, lost, waived, given up, or otherwise failed to perfect any rights,
including but not limited to use rights related to any water that is the subject of the complaints.
Plaintiffs’ claims are also barred because under California law, the water that is the subject of
the complaints is the property of the State of California, not of plaintiffs.
215.

The complaints and each purported cause of action are barred to the extent that

such claims have been satisfied by payments or provision of alternate water supplies by
ExxonMobil, defendants, or third parties.

- 42 -

216.

The complaints and each purported cause of action are barred to the extent that

plaintiffs have assigned rights and claims for certain damages and other relief, if any, to
ExxonMobil, other defendants, or third parties.
217.

If plaintiffs sustained any injury under the circumstances alleged in the

complaints or in any other respect, their recovery against ExxonMobil, if any, is barred by the
alleged conduct and conditions resulted from a necessity.
218.

Plaintiffs’ claims are barred, in whole or in part, as the result of their own

knowing or negligent conduct that caused or contributed to MTBE and/or TBA contamination
giving rise to these claims.
NEW JERSEY
219.

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, N.J. Stat. Ann.
§ 2A:14-2.
220.

ExxonMobil’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,
and negligence, according to the applicable provision of N.J. Stat. Ann. § 2C:2-2, and, therefore,
plaintiffs’ claims on these counts should be dismissed.
221.

Plaintiffs’ claims are barred by the entire controversy doctrine and the principles

of res judicata.
222.

ExxonMobil is not “in any way responsible” for a hazardous substance as is

required under the New Jersey Spill Compensation and Control Act (“Spill Act”).
223.

ExxonMobil did not “discharge” a hazardous substance as required under the

Spill Act.

- 43 -

224.

Plaintiffs have not incurred “cleanup and removal costs” under the Spill Act.

225.

Plaintiffs’ claim for treble damages under the Spill Act is barred as Plaintiffs have

failed to comply with the requirements set forth in the Spill Act.
226.

Plaintiffs’ claim for treble damages under the Spill Act is barred as ExxonMobil

had good cause for not entering into a settlement agreement with Plaintiffs and because
principles of fundamental fairness will be violated by such an award.
227.

Plaintiffs’ claims are barred by the doctrine of primary jurisdiction in that the

New Jersey Department of Environmental Protection (“NJDEP”) is responsible for directing and
allocating responsibility for investigation and remediation of the environmental condition alleged
in the Complaint.
228.

Plaintiffs’ claims are barred in that ExxonMobil has complied with, and satisfied,

all applicable laws, regulations, rules, orders, directives and/or other requirements of the NJDEP
and/or other state or federal agencies regarding the environmental condition alleged in the
Complaint.
229.

Plaintiffs were contributorily and comparatively negligent and therefore their

claims are barred or diminished by such negligence under the Comparative Negligence Act and
common law.
230.

Plaintiffs’ claims are frivolous. ExxonMobil reserves the right to move at any

time for attorneys' fees and costs in accordance with the New Jersey Frivolous Claims Statute, or
pursuant to R.1:4-8.
231.

Plaintiffs’ 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).

- 44 -

232.

Plaintiffs’ claims for natural resource damages are in excess of any sovereign

rights transmitted to New Jersey by the British Crown at independence, and if upheld would be
unconstitutional violation of the Equal Footing Doctrine.
233.

Plaintiffs’ claims are barred, in whole or in part, by the statutory defenses to

liability provided by the Spill Act.
234.

Plaintiffs’ claims under the Spill Act are not ripe, since clean up and remediation

have not been completed.
235.

Plaintiffs’ claims under the Spill Act are barred, in whole or in part, because the

claims asserted are preempted by federal law, including, without limitation the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.
236.

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.
237.

Plaintiffs’ claims under the Spill Act are barred to the extent plaintiffs seek relief

for conduct occurring or damages incurred prior to the effective date of the Spill Act.
238.

Plaintiffs have failed to join parties needed for the just adjudication of the

Plaintiffs’ claims, in whose absence complete relief cannot be afforded the existing parties
pursuant to N.J.Ct.R. 4:28-1.
239.

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

- 45 -

remediation operations in accordance with the National Contingency Plan to the greatest extent
possible.
240.

Plaintiffs have no authority or standing, in their parens patriae capacity or

otherwise, to recover damages on behalf of private individuals.
241.

Plaintiffs’ product liability claim fails because there was not a practical and

technically feasible alternative design that would have prevented the alleged harm without
substantially impairing the reasonably anticipated or intended function of the product. N.J.S.A.
2A:58C-3a(1).
242.

Plaintiffs’ product liability claim fails because the characteristics of the product

were known to the ordinary consumer or user. N.J.S.A. 2A:58C-3a(2).
PUERTO RICO
243.

The Commonwealth’s complaint fails to state a claim which would entitle it to

244.

The Commonwealth’s authority is limited by those powers conferred by the

relief.

Constitution of the Commonwealth, the legislature in the laws of Puerto Rico and the Congress
of the United States of America in federal legislation.
245.

The Environmental Quality Board’s (“EQB”) authority is limited by those powers

delegated to it through its Organic act and other enabling legislation.
246.

The Commonwealth is not exempted from meeting the same burden of proof as

any other plaintiff in an action for damages, in accordance with Art. 1802 of the Puerto Rico
Civil Code.

- 46 -

247.

Insofar as the Commonwealth seeks to recover damages through the action

authorized by the Public Policy Environmental Act (“PPEA”), it is barred from recovering under
common law theories, such as public nuisance, trespass, strict products liability and negligence.
248.

Future costs are not authorized by P.R. Laws Ann. tit. 32 § 2761.

249.

Trespass is not an acknowledged cause of action under the Puerto Rico Civil

Code or as an equitable cause of action for acts or omissions occurring within the jurisdiction of
Puerto Rico.
250.

The Commonwealth’s complaint fails to plead the elements of a negligence claim

under Art. 1802 of the Puerto Rico Civil Code with sufficient clarity, specificity, and
particularity, including the alleged damages sustained by the Commonwealth, the alleged acts or
omissions of Defendant and the causal nexus.
251.

If it is determined that the Commonwealth or anyone on whose behalf the

Commonwealth is allegedly suing, was injured, as set forth in the complaints, which Defendants
deny, any award of damages must be reduced in proportion to the percentage of fault attributable
to the Commonwealth and/or to third parties (including but not limited to persons or entities
responsible for gasoline leaks or spills).
252.

The Commonwealth lacks standing to bring a citizen suit under Puerto Rico

Public Policy Environmental Act. P.R. Laws Ann. tit. 12 § 8001 et seq.
253.

The Commonwealth’s claims are barred by the applicable statute of limitations or

prescription period, Article 1802, P.R. Laws. Ann. tit. 31 § 5141.
254.

Defendants are not liable under the PPEA because it has followed and complied

with all applicable, if any, dispositions and regulations promulgated under the PPEA.

- 47 -

255.

Defendants are not liable under the PPEA because its actions have not, in any

manner, contributed or created any damage or degradation to any of the Commonwealth's natural
resources.
256.

Defendants are not liable under the PPEA because releases, if any, were caused

by an act or omission of a third party and Defendant exercised due care and took precautions
against foreseeable acts of a third party.
257.

The Commonwealth lacks standing to bring a suit for alleged violations to the

Water Pollution Control Act (“WPCA”), P.R. Laws Ann. tit. 24 § 591 et seq.
258.

MTBE is not considered “other” pollutant as defined in the WPCA. P.R. Laws

Ann. tit. 24 § 591(h).
259.

Defendants are not liable under the WPCA because the prohibitions, as well as the

definitions contained in the WPCA, are unconstitutionally vague.
260.

MTBE is not considered a “Pollutant” by the Commonwealth’s Water Quality

Standards Regulations, Department of State Regulation No. 6616, or subsequently adopted
Water Quality Standards Regulations.
261.

Defendants are not liable under the Water Quality Standards Regulations because

MTBE is not regulated nor limited under the Water Quality Standards Regulations.
262.

Defendants are not liable under the Water Quality Standards Regulations because

releases, if any, were caused by an act of God.
263.

Defendants are not liable under the Water Quality Standards Regulations because

releases, if any, were caused by an act or omission of a third party and Defendants exercised due
care and took precautions against foreseeable acts of a third party.

- 48 -

264.

MTBE was not a “Regulated Substance” as defined in the Commonwealth’s

Underground Storage Tank Regulations, Department of State Regulation No. 4362, at the time
the complaints were filed or the alleged injury occurred, and retroactive application of lateradopted regulations is unconstitutional.
265.

Defendants are not liable under the Underground Storage Tank Regulations

because MTBE was not regulated or limited under the Commonwealth’s Underground Storage
Tank Regulations at the time the complaints were filed or Defendants’ alleged misconduct
occurred, and retroactive application of later-adopted regulations is unconstitutional.
266.

Defendants are not liable under the Underground Storage Tank Regulations

because releases, if any, were caused by an act of God.
267.

The Commonwealth’s claim under RCRA fails because the Commonwealth has

failed to allege that Defendants have violated RCRA Subchapter III.
268.

Recovery is barred or must be reduced, in whole or in part, based on the doctrine

of comparative negligence.
269.

The Commonwealth’s claim must be decreased by the proportion of harm for

which the Commonwealth is liable due to its concurrent imprudence.
270.

The Commonwealth’s award, if any, must be reduced in proportion to the

damages for which purchasers of gasoline are liable due to their concurrent imprudence.
271.

The Commonwealth’s request that the court order Defendants to remediate

impacted water, if any, to pre-injury quality is unrealistic insofar as the costs associated with a
zero-tolerance rule make such a goal impracticable.
272.

The Commonwealth has not established defendant’s intent to trespass on the land

owned by the Commonwealth.

- 49 -

273.

The Commonwealth does not own the land allegedly trespassed.

274.

The Commonwealth has not suffered any damages to its personal or comfortable

enjoyment of life or property.
275.

The Commonwealth cannot recover for the risks inherent to unintended uses of

Defendant’s products.
276.

The Commonwealth has not identified any significant property interest or quasi

sovereign interest arising to an objectively significant harm affected by Defendants' activities
related to MTBE
277.

No public nuisance exists because no act or omission by or on behalf of any of the

Defendants caused or will cause injury to health or offense to the senses, or is a nuisance to the
wellbeing of any neighborhood, or to a large number of persons as required by P.R. Laws Ann.
tit. 32 § 2761.
278.

Defendants are not liable for any alleged public nuisance because the

Commonwealth, through its acts and omissions, impliedly consented to and had knowledge of all
activities and conditions alleged in the complaint.
279.

No public nuisance exists because the Defendants’ activity does not constitute an

ultrahazardous activity or an illegal hazardous activity.
280.

The Commonwealth's request for a permanent injunction should be denied

because it is a drastic measure and the court should first provide the Defendants a reasonable
time to eliminate or lessen the nuisance caused by MTBE, if any.
281.

Any nuisance caused by Defendants is unintentional and not the result of

Defendants' reckless acts or ultrahazardous activities.

- 50 -

282.

Plaintiffs have no authority or standing, in their parens patriae capacity or

otherwise, to recover damages on behalf of private individuals.
**********
283.

For each State described above, ExxonMobil incorporates by reference any

affirmative defense, whether general or specific to another State, alleged herein or by other
defendants in MDL 1358.
284.

The pleading of the defenses described above shall not be construed as an

undertaking by ExxonMobil of any burden which would otherwise be the responsibility of
plaintiffs.

WHEREFORE, ExxonMobil requests entry of judgment dismissing the complaints with
prejudice, and awarding ExxonMobil its costs and attorneys’ fees, and such other relief as the
Court may deem just and proper.

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EXXON MOBIL CORPORATION’S AMENDED MASTER CROSS-CLAIMS
AGAINST JOHN AND JANE DOES NOS. 501-1000 1

Pursuant to Rule 13 of the Federal Rules of Civil Procedure, Defendants and CrossPlaintiffs Exxon Mobil Corporation, Exxon Mobil Chemical Company, ExxonMobil Oil
Corporation, ExxonMobil Pipeline Company, Socony Mobil Oil Company, Inc., Socony
Vacuum Oil Company, Incorporated; Esso Standard Oil Company (Puerto Rico) and Mobil
Corporation (collectively “ExxonMobil”), by their undersigned counsel, hereby bring these
Cross-Claims against Cross-Defendants John and Jane Does nos. 501-1000, presently
Defendants in this action but whose identity is unknown, in In Re: Methyl Tertiary Butyl Ether
(“MTBE”) Products Liability Litigation (“MDL 1358”) for all cases in which an answer is
presently required, and in which they have properly named and served, and in support thereof,
aver as follows:
Background
1.

Plaintiffs commenced civil actions in New Jersey and the Commonwealth of

Puerto Rico against ExxonMobil and other purported manufacturers, designers, refiners,
formulators, distributors, suppliers, sellers, and marketers of the gasoline additive MTBE and/or
gasoline products containing MTBE for alleged damages resulting from the contamination or
threatened contamination of plaintiffs’ groundwater or water systems by MTBE and/or gasoline
containing MTBE. Certain of the complaints also contain allegations relating to TBA.
2.

Specifically, plaintiffs allege negligence, public and private nuisance, trespass,

civil conspiracy, breach of warranty, violation of state environmental/spill acts, strict liability

1

In an email dated July 20, 2005, Her Honor stated that cross-claims relating to the California actions did not have
to be asserted with this Master Answer. Accordingly, ExxonMobil is not asserting cross-claims in the California
actions at this time. ExxonMobil reserves the right to assert such cross-claims in the future in accordance with the
schedule set by the Court or the parties.

- 52 -

due to abnormally dangerous activity, violation of state consumer protection laws, and a variety
of product liability theories against ExxonMobil (and related entities) and the other named
Defendants.
3.

In virtually all instances, plaintiffs’ complaints fail to identify – or name as

defendants – the entities or persons responsible for spilling, leaking or otherwise releasing into
the environment the MTBE, TBA, tert-amyl methyl ether (“TAME”), or gasoline containing
MTBE, TBA, or TAME that led to the contamination or threatened contamination they allege.
Nor have plaintiffs identified the locations of each well they allege is contaminated or threatened
with contamination.
Parties, Jurisdiction, and Venue
4.

Exxon Mobil Corporation (“ExxonMobil”) is a New Jersey corporation with its

principal place of business in Irving, Texas.
5.

Cross-Defendants are individuals and/or entities, Defendants in this action but

whose exact identities, locations, and actions are presently unknown to ExxonMobil, and who
are responsible for any and all damages allegedly sustained by plaintiffs. The exact identities,
locations and actions of the Defendants also named as Cross-Defendants depend on further
discovery and/or determinations regarding, among other things, the locations of the wells
plaintiffs allege are contaminated or threatened with contamination.
6.

Cross-Defendants’ offending conduct, as described herein, took place in

substantial part in New Jersey and the Commonwealth of Puerto Rico in relative proximity to the
contaminated or threatened groundwater or water systems in which plaintiffs claim to have an
interest.

- 53 -

7.

Jurisdiction is proper in this Court under 28 U.S.C. § 1367, in that the claims set

forth herein are so related to the claims in plaintiffs’ Complaints that they form part of the same
case or controversy.
8.

Venue is proper in this Court under 28 U.S.C. § 1391 and Federal Rule of Civil

Procedure 13.
Cross-Defendants’ Unlawful Conduct
9.

Plaintiffs allege that ExxonMobil and the other named Defendants caused the

contamination or threatened contamination of plaintiffs’ groundwater or water systems in
manufacturing, designing, refining, formulating, distributing, supplying, selling, or marketing
MTBE or gasoline containing MTBE and are liable to plaintiffs for the damages allegedly
resulting therefrom. Certain of the complaints also contain allegations relating to TBA and
TAME.
10.

ExxonMobil denies any and all liability whatsoever for plaintiffs’ alleged

damages and incorporates its Master Answer to plaintiffs’ Complaints by reference.
11.

ExxonMobil is not responsible for the actual or threatened releases, spills, or leaks

of MTBE or gasoline containing MTBE into plaintiffs’ groundwater or water systems.
ExxonMobil owns or operates few, if any, of the service stations, the land on which they operate,
USTs, or other instrumentalities, from which gasoline was leaked or spilled.
12.

The harm allegedly sustained by plaintiffs is a direct result of the actions and

inaction of Cross-Defendants, Defendants to this action, the exact identities of which are
unknown to ExxonMobil at this time, and over whom ExxonMobil has no control and for whom
ExxonMobil is not responsible. If ExxonMobil has or had any relationship, contractual or

- 54 -

otherwise, with one or more Cross-Defendants, such relationships required Cross-Defendants to
refrain from the offending activity described herein, and/or to assume full responsibility for it.
13.

Cross-Defendants owed a duty to ExxonMobil to safely and properly use, handle,

or store MTBE or gasoline containing MTBE; install, remove, or inspect USTs containing such
products; and remediate or mitigate contamination caused by MTBE or gasoline containing
MTBE.
14.

Cross-Defendants breached their aforementioned duty in, inter alia, the following

regards:
a.

By failing to safely and properly handle, use, or store MTBE or gasoline
containing MTBE;

b.

By failing to safely and properly transport, haul, deliver, or transfer MTBE or
gasoline containing MTBE;

c.

By failing to safely and properly receive or accept delivery or transfers of MTBE
or gasoline containing MTBE;

d.

By failing to safely and properly remediate, mitigate, clean-up, eliminate, or
control releases, spills, or leaks of MTBE or gasoline containing MTBE,
including by, inter alia, failing to timely commence remediation or mitigation
efforts, or improperly drilling or establishing monitoring wells during
remediation or mitigation, thereby causing cross-contamination;

e.

By failing to safely and properly service, repair, maintain, monitor, inspect, test,
or examine USTs or any associated piping or equipment;

f.

By failing to safely and properly install, replace, excavate, or remove USTs or
any associated piping or equipment;

- 55 -

g.

By failing to safely and properly dispense or pump gasoline into trucks, tankers,
automobiles, or any other vehicles;

h.

By failing to adhere to applicable laws, rules, regulations, guidelines, or
procedures relating to the use, handling, or storage of MTBE or gasoline
containing MTBE; the installation, removal, or inspection of USTs; or the
remediation or mitigation of contamination caused by MTBE or gasoline
containing MTBE; and

i.

By otherwise failing to act with due care in using, handling, or storing MTBE or
gasoline containing MTBE; installing, removing, or inspecting USTs; or
remediating or mitigating contamination caused by MTBE or gasoline containing
MTBE.

15.

The actions and inaction of Cross-Defendants were negligent, careless, reckless,

and in derogation of their duty to ExxonMobil.
16.

As a direct and proximate result of Cross-Defendants’ actions and inaction, Cross-

Defendants were the sole cause of and/or contributed to the alleged contamination or threatened
contamination of plaintiffs’ groundwater or water systems and any and all resulting damages to
plaintiffs alleged in the Complaints, and are directly liable to plaintiffs. Alternatively, CrossDefendants are liable ExxonMobil for all or part of plaintiffs’ claims against ExxonMobil.
17.

Without admitting any of the allegations made against ExxonMobil in plaintiffs’

Complaints, ExxonMobil incorporate plaintiffs’ allegations and legal claims by reference and
asserts them against Cross-Defendants. Without limitation, ExxonMobil specifically asserts that
Cross-Defendants are liable to plaintiffs on, among other claims, their negligence, trespass and

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nuisance claims, and any claims premised on state statutes or regulations which apply, in whole
or in part, to owners and operators of gasoline stations, USTs or other gasoline storage facilities.
18.

If the allegations contained in plaintiffs’ Complaints are correct, which is

specifically denied, then Cross-Defendants are liable solely and directly to plaintiffs for the
incidents complained of and any and all damages sought by plaintiffs.
19.

Alternatively, if the allegations contained in plaintiffs’ Complaints are correct,

which is specifically denied, and it is judicially determined that plaintiffs are entitled to damages
from ExxonMobil, then Cross-Defendants are liable over to ExxonMobil, and ExxonMobil is
entitled to express, implied, or equitable indemnification and/or contribution from CrossDefendants for all losses, damages, and costs, including attorneys’ fees, that ExxonMobil incurs
as a result of this action.
WHEREFORE, Defendants and Cross-Plaintiffs Defendants and Cross-Plaintiffs Exxon
Mobil Corporation, Exxon Mobil Chemical Company, ExxonMobil Oil Corporation,
ExxonMobil Pipeline Company, Socony Mobil Oil Company, Inc., Socony Vacuum Oil
Company, Incorporated; Esso Standard Oil Company (Puerto Rico), and Mobil Corporation
demand entry of judgment in their favor and against Cross-Defendants John and Jane Does nos.
501-1000 for all sums that may be awarded in favor of plaintiffs and against ExxonMobil,
together with interest, costs, reasonable attorneys’ fees, and such other relief as this Court deems
just and proper.

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EXXON MOBIL CORPORATION’S AMENDED MASTER THIRD-PARTY
COMPLAINT AGAINST JOHN AND JANE DOES NOS. 1-500
Pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, Defendants and ThirdParty Plaintiffs Exxon Mobil Corporation, Exxon Mobil Chemical Company, ExxonMobil Oil
Corporation, ExxonMobil Pipeline Company, Mobil Corporation, Socony Mobil Oil Company,
Inc., Socony Vacuum Oil Company, Incorporated; and Esso Standard Oil Company (Puerto
Rico) (collectively “ExxonMobil”), by their undersigned counsel, hereby bring this Third-Party
Complaint against Third-Party Defendants John and Jane Does nos. 1-500 (“Third-Party
Defendants”) in MDL 1358 for all cases in which an answer is presently required, and in which
they have been properly named and served, and in support thereof, avers as follows:
Background
1.

Plaintiffs commenced civil actions in California, New Jersey, and the

Commonwealth of Puerto Rico against ExxonMobil and other purported manufacturers,
designers, refiners, formulators, distributors, suppliers, sellers, and marketers of the gasoline
additive methyl tertiary butyl ether (“MTBE”) and/or gasoline products containing MTBE for
alleged damages resulting from the contamination or threatened contamination of Plaintiffs’
groundwater or water systems by MTBE and/or gasoline containing MTBE.
2.

Specifically, Plaintiffs allege negligence, public and private nuisance, trespass,

civil conspiracy, breach of warranty, violation of state environmental/spill acts, violation of state
consumer protection laws, and a variety of product liability theories against ExxonMobil (and
related entities) and the other named Defendants.
3.

In virtually all instances, Plaintiffs’ complaints fail to identify -- or name as

defendants -- the entities or persons responsible for spilling, leaking or otherwise releasing into
the environment the MTBE or gasoline containing MTBE that led to the contamination or
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threatened contamination they allege. Nor have Plaintiffs identified the locations of each well
they allege is contaminated or threatened with contamination.
Parties, Jurisdiction, and Venue
4.

Exxon Mobil Corporation (“ExxonMobil”) is a New Jersey corporation with its

principal place of business in Irving, Texas.
5.

Third-Party Defendants are individuals and/or entities, the exact identities and

locations of which are presently unknown, consisting of: (a) retail gasoline service station
owners and operators; (b) jobbers and wholesalers; (c) trucking and tanking companies; (d)
drivers and operators of vehicles used by trucking and tanking companies; (e) contractors,
excavators, and others engaged in the installation, removal, repair, or examination of
underground storage tanks (“USTs”) or associated piping or equipment; and (f) others whose
actions or inaction caused or threatens to cause releases, spills, or leaks of MTBE or gasoline
containing MTBE impacting Plaintiffs’ groundwater or water systems, and who are thereby
responsible for any and all damages allegedly sustained by Plaintiffs.
6.

Third-Party Defendants’ offending conduct, as described herein, took place in

substantial part in California, New Jersey, and the Commonwealth of Puerto Rico in relative
proximity to the contaminated or threatened groundwater or water systems in which Plaintiffs
claim to have an interest.
7.

Jurisdiction is proper in this Court under 28 U.S.C. § 1367, in that the claims set

forth herein are so related to the claims in Plaintiffs’ Complaints that they form part of the same
case or controversy.
8.

Venue is proper in this Court under 28 U.S.C. § 1391 and Fed. R. Civ. P. 14.

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Third-Party Defendants’ Unlawful Conduct
9.

Plaintiffs allege that ExxonMobil and the other named Defendants caused the

contamination or threatened contamination of Plaintiffs’ groundwater or water systems in
manufacturing, designing, refining, formulating, distributing, supplying, selling, or marketing
MTBE or gasoline containing MTBE and are liable to Plaintiffs for the damages allegedly
resulting therefrom.
10.

ExxonMobil denies any and all liability whatsoever for Plaintiffs’ alleged

damages and incorporates its Master Answer to Plaintiffs’ Complaints by reference.
11.

ExxonMobil is not responsible for the actual or threatened releases, spills, or leaks

of MTBE or gasoline containing MTBE into Plaintiffs’ groundwater or water systems.
ExxonMobil owns or operates few, if any, of the service stations or USTs, or other
instrumentalities, from which gasoline was leaked or spilled by Third-Party Defendants, and
which allegedly impacted Plaintiffs’ wells.
12.

The harm allegedly sustained by Plaintiffs is a direct result of the actions and

inaction of Third-Party Defendants, the exact identities of which are unknown to ExxonMobil at
this time, and over whom ExxonMobil has no control and for whom ExxonMobil is not
responsible. If ExxonMobil has or had any relationship, contractual or otherwise, with one or
more Third-Party Defendants, such relationships required Third Party Defendants to refrain from
the offending activity described herein, and/or to assume full responsibility for it.
13.

Third-Party Defendants owed a duty to Plaintiffs and/or ExxonMobil to safely

and properly use, handle, or store MTBE or gasoline containing MTBE; install, remove, or
inspect USTs containing such products; and remediate or mitigate contamination caused by
MTBE or gasoline containing MTBE.

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14.

Third-Party Defendants breached their aforementioned duty in, inter alia, the

following regards:
a.

By failing to safely and properly handle, use, or store MTBE or gasoline
containing MTBE;

b.

By failing to safely and properly transport, haul, deliver, or transfer MTBE or
gasoline containing MTBE;

c.

By failing to safely and properly receive or accept delivery or transfers of MTBE
or gasoline containing MTBE;

d.

By failing to safely and properly remediate, mitigate, clean-up, eliminate, or
control releases, spills, or leaks of MTBE or gasoline containing MTBE, and/or
by failing to properly consult or advise Plaintiffs regarding same, including by,
inter alia, failing to timely commence remediation or mitigation efforts, or
improperly drilling or establishing monitoring wells during remediation or
mitigation, thereby causing cross-contamination;

e.

By failing to safely and properly service, repair, maintain, monitor, inspect, test,
or examine USTs or any associated piping or equipment;

f.

By failing to safely and properly install, replace, excavate, or remove USTs or
any associated piping or equipment;

g.

By failing to safely and properly dispense or pump gasoline into trucks, tankers,
automobiles, or any other vehicles;

h.

By failing to adhere to applicable laws, rules, regulations, guidelines, or
procedures relating to the use, handling, or storage of MTBE or gasoline
containing MTBE; the installation, removal, or inspection of USTs; or the

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remediation or mitigation of contamination caused by MTBE or gasoline
containing MTBE; and
i.

By otherwise failing to act with due care in using, handling, or storing MTBE or
gasoline containing MTBE; installing, removing, or inspecting USTs; or
remediating or mitigating contamination caused by MTBE or gasoline containing
MTBE.

15.

The actions and inaction of Third-Party Defendants were negligent, careless,

reckless, and in derogation of their duty to Plaintiffs and/or ExxonMobil.
16.

As a direct and proximate result of Third-Party Defendants’ actions and inaction,

Third-Party Defendants were the sole cause of and/or contributed to the alleged contamination or
threatened contamination of Plaintiffs’ groundwater or water systems and any and all resulting
damages to Plaintiffs alleged in the Complaints, and are directly liable to Plaintiffs.
Alternatively, Third Party Defendants are liable to ExxonMobil for all or part of Plaintiffs’
claims against ExxonMobil.
17.

Without admitting any of the allegations made against ExxonMobil in Plaintiffs’

Complaints, ExxonMobil incorporates Plaintiffs’ allegations and legal claims by reference and
asserts them against Third-Party Defendants.

Without limitation, ExxonMobil specifically

asserts that Third Party Defendants are liable to Plaintiffs on, among other claims, their
negligence, trespass and nuisance claims, and any claims premised on state statutes or
regulations which apply, in whole or in part, to owners and operators of gasoline stations, USTs
or other gasoline storage facilities.

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