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

Filing 4316

TRANSCRIPT of Proceedings re: Conference held on 5/7/2008 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/1/2016. Redacted Transcript Deadline set for 1/11/2016. Release of Transcript Restriction set for 3/10/2016.(Siwik, Christine)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ORANGE COUNTY WATER DISTRICT,

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Plaintiff,

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v.
UNOCAL CORP., et al.,

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04-CV-4968 (SAS)

Defendants.

Telephone Conference

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New York, N.Y.
May 7, 2008
3:32 p.m.

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Before:
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HON. SHIRA A. SCHEINDLIN,
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District Judge
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APPEARANCES
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MICHAEL D. AXLINE, ESQ.
Attorney for Plaintiff
PETER DUCHESNEAU, ESQ.
Attorney for Defendant USA Gasoline

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In chambers)

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THE COURT:

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COUNSEL:

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THE COURT:

Okay.

Hi.

This is Judge Scheindlin.

Good afternoon, your Honor.
And we have a court reporter, so it's

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difficult to distinguish between your voices, so when you

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speak, would you say, this is Mr. Axline or, this is

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Mr. Duchesneau.

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MR. DUCHESNEAU:

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MR. AXLINE:

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THE COURT:

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Certainly.

This is Mr. Axline and yes, I will.
Okay.

So I have letters from you folks.

One second.

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I have an April 28th, 2008 letter from

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Mr. Duchesneau and I have a response May 1st, 2008 from

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Mr. Axline, and the dispute that USA Gasoline has raised is

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that it wants to strike Orange County's reference to a USA

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station as a contributor to one of the focused plumes which

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Orange County raised in its supplemental opposition to the

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defendant's statute of limitations motion.

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And it is a strange picture.

In the first

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designation, February 9th, 2007, Orange County did not

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mention the USA station.

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it to designate stations associated with plumes, and it wasn't

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listed on February 9th.

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it in a revised list that was sent on April 11th and

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April 23rd.

And Case Management Order 23 required

But then Orange County did include

But for reasons that I don't know, that aren't
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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explained by Orange County in this letter writing, USA station

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was not listed on the April 30th list, which seemed to really

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be the final list.

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the list of focused plumes and associated stations.

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station was not on the list.

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Order 25, which was issued in March of 2007, said the revised

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lists were to be the basis for station-specific discovery from

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the defendants.

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That was the final letter sent to confirm
And this

And of course, Case Management

I've got to tell you before you're heard that -- it's

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always helpful to know what the judge thinks, and based on

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these letters, it seems to me that Orange County is out of

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luck.

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not in this because it was not on the final list.

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right to rely on that.

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suddenly, in a supplemental brief almost 11 months later, it

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just turns up again, and Orange County says, well, you know,

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don't worry about it, there was some prior discovery long ago,

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we had some document production back in '04, four years ago,

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and that's enough for USA to make a motion.

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really fair for Orange County to tell USA what's sufficient to

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make a motion.

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thing and to have full discovery rights and to make a motion

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based on the discovery.

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weren't in it, they didn't do that.

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fair to proceed at this point, Mr. Axline.

USA is prejudiced.

It has had a year of thinking it was
It had a

It didn't proceed with discovery, and

Well, it's not

They were entitled to know they were in this

And being that they thought they
So it's absolutely not

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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So given that, if you want to be heard, fine, but if

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you want to just say, I accept the Court's ruling, that's fine

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too.

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MR. AXLINE:

Well, I would like to say briefly, your

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Honor, that, and of course, I would accept the Court's ruling,

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but...

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THE COURT:

Well, no, of course.

But you know what I

mean.
MR. AXLINE:

Yes.

As a practical matter, this station

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is going to be in the case.

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THE COURT:

I do understand that and probably

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Mr. Duchesneau does too, but not in the focused plumes that

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we're arguing about.

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MR. AXLINE:

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THE COURT:

Is that what you mean?
That is what I mean.
Yes.

And I think he understands that

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these were just focused plumes, these weren't the whole case,

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and everybody's supposed to learn something from the outcome of

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the motions that hopefully they will use common sense to apply

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the remaining plumes.

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case, but they shouldn't be in this motion.

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the extent this motion decides one of these focused plumes that

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they might have been associated with, you lose them as a

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defendant for that one plume, of which you probably have many

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other defendants.

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MR. AXLINE:

So I understand they may still be in the
And therefore, to

That's true, and it makes sense -- First

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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let me say, I can't give you an explanation as to why they were

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left off the April 30th.

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THE COURT:

Right.

That's what I thought you were

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going to say.

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they have a right to rely on it.

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that year.

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But things happen and a year passes, and I think
The discovery was not done in

But go ahead.

MR. AXLINE:

Well, when we try the focused plumes,

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your Honor, there was a practical mention of it, it just makes

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a lot of sense to try all of the stations that had been --

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THE COURT:

I know.

I know.

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MR. AXLINE:

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THE REPORTER:

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THE COURT:

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offer to Mr. Duchesneau what?

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MR. AXLINE:

I did offer to Mr. Duchesneau -I'm sorry.

I can't hear.

She's having trouble hearing you.

Yes.

You did

That if there was some prejudice

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that could be resolved by us, between the two of us now so that

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this station could, as it should be, be included at the first

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trial involving the focused plumes, I would do really anything

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to accommodate him.

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THE COURT:

Right.

And I think the only problem with

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that would be, he might agree to that if the Court made him,

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but we shouldn't go ahead with the summary judgment as to him

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in any event.

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satisfied he'd had all the appropriate discovery, and by then

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we would have decided the summary judgment as to other people

Basically he'd have to put that off until he was

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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and maybe everybody could see the handwriting on the wall

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anyway.

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I just don't -MR. AXLINE:

That makes sense, your Honor.

So -- and

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it makes sense to exclude, I guess, this station, in a way,

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from the current statute of limitations.

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THE COURT:

That's what I'm saying.

And then if you

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engage in focused discovery and you've gotten the ruling on

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this first motion and can see the handwriting on the wall, I

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mean one side or the other, if the defendant nonetheless thinks

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it has a valid motion -- I say nonetheless.

I have no idea

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what my ruling is going to be because I haven't turned to this.

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But in any event, after the ruling, if the defendant says, we

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have a motion, no matter what the Court has previously ruled,

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we read it, we understand it, we have a motion, then they'd

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have to make a separate motion at that time, which is

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inconvenient for the Court, but it would at least restore their

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right to make the motion.

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motion practice now.

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MR. AXLINE:

But they shouldn't be part of the

In that case, we really have no

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objection.

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they feel they want to make one after the Court rules.

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think it makes sense -- and I hope I'm understanding this

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correctly -- for the station to remain as part of the Phase I

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trial because it's hydrogeologically --

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We'd be happy to accommodate a separate motion if

THE COURT:

And I

Well, I will say that if it hadn't been in

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the April 11th and April 23rd letter, I don't think you'd

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even have begging rights, so to speak, to implore the Court to

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do that.

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April 30th I just have to assume is kind of old-fashioned law

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office error.

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speak, would be that they're not ready to make the motion now.

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But it was there twice.

Why it fell off on

And if that's the case, the only harm, so to

MR. DUCHESNEAU:

Your Honor, this is Pete Duchesneau

on behalf of USA Gasoline.
THE COURT:

If I can be heard on that.

Yes, of course you can be heard.

MR. DUCHESNEAU:

I still remain -- I still have a

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concern with respect to the station being appropriately part of

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the designated plume number 9, and I can actually shed a little

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bit more light on those middle two letters, so to speak, in

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April, which I do not think is supportive of the plaintiff's

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position or adding stations right now to the plume.

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The Court had initially ordered that the plaintiff's

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designate ten plumes by the end of February of 2007, and the

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plaintiff complied with that order by February 9th.

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On March 1st the Court held a conference where the

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plumes were addressed.

There were submissions with respect to

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the defendant's designations of those plumes.

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conference, the Court ordered that plaintiffs stick with their

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ten plumes but ordered the plaintiffs to elaborate on the 50

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some odd other plumes, the so-called master plume list.

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defendants would be able then to select their ten plumes.

And at the

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

The

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And there is what those two other letters were all

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about when you see all the other plumes listed, and they did --

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when they listed plume number 19, they did list the USA

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Gasoline station among it, then on April 30th, to make

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everything abundantly clear, they confirmed their plumes or

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their ten designated plume stations.

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And I would argue that not only the plaintiff had the

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2004 production of all the environmental reports concerning the

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station a couple years before that, but they had demonstrated

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that they were well aware of the existence of that station.
THE COURT:

Yes, but then you'll win your summary

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judgment down the road, if that's all you're trying to tell me.

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What I'm trying to say is you're out of this motion, but should

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you have the sort of good fortune to be out of the liability

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for that plume because somebody made an error between

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April 23rd and April 30th -- probably not.

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prejudice is eliminated, Mr. Axline says he has a good faith

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basis to believe that this is a station associated with the

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plume, I'm not going to say the record is strong enough now to

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compel you to move because you haven't had discovery.

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can go ahead and wrap up the discovery, and if you still have a

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summary judgment motion, which really is what you were arguing

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a minute ago, that they knew back in '96 or thereafter, if you

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win it, you win it.

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odd, because you all concede that it was listed as associated

As long as all

So you

But the default, so to speak, is a little

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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with plume number 9 on April 11th and April 23rd.

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dropped off on the 30th, I don't know, and you really don't

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know either.

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MR. DUCHESNEAU:

Pete Duchesneau again.

Why it

If I can add

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something, your Honor.

It would be my view here, your Honor,

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that given the year or so that has passed that it should be

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incumbent upon the plaintiff at this point in time to explain

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why it believes it is appropriately subject to this plume

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number 9.

That may actually indeed eventually -- should cut

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short the discovery in the future, but given that they were

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aware of the existence of the station, there's nothing that has

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been provided so far in this Rule 56.1 statement that says

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absolutely anything about why they even contend it's part of

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the plume.

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THE COURT:

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a completely different point.

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why it was on the April 11th and April 23rd and not

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April 30th.

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we forgive if we can get around prejudice.

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Oh, well, that's fair enough too.

That's

But I think they can't explain

That just looks like law office failure, which

Your other point is well taken.

I have no idea why

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Mr. Axline says he has proof on which a reasonable juror could

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find that this station was involved with plume number 9.

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have no idea what that proof is.

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MR. AXLINE:

I

That is addressed in the declaration of

David Bolen that was submitted with the brief and the Rule 56
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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statement, your Honor.

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district selected the stations that were associated with each

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plume.

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He gave a brief overview of how the

MR. DUCHESNEAU:

Your Honor, Pete Duchesneau again for

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USA Gasoline.

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reviewed it again yesterday, and there's absolutely no mention

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of a USA Gasoline station.

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I have reviewed that declaration and just

THE COURT:

Well, now you can't be that far apart.

Mr. Axline, if it's not there, say so.
MR. AXLINE:

This is Mike Axline.

Mr. Bolen's

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declaration did not separately identify all of the stations.

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He just gave an explanation for how they were associated with

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the plumes.

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THE COURT:

Well, so Mr. Duchesneau's right.

At this

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point in time you haven't put on the table any proof to keep

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this station in anyway in plume number 9 because you just said

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in a conclusory way, well, if we're going to try plume number

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9, we certainly should try the USA Gasoline station with it

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since it's associated with it.

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None of us know what you're talking about.

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that this particular station is associated with it?

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you couldn't survive a summary judgment anyway.

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would be one line:

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this station is involved with this plume, close the brief and

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say respectfully submitted.

Well, nobody's seen that proof.
What's the proof
Otherwise,

His motion

The plaintiff has offered no proof that

And what is the proof?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. AXLINE:

Well, Mike Axline, your Honor.

The

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district didn't submit extensive proof on causation because we

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were opposing a statute of limitations motion.

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THE COURT:

I understand that, but he's saying, this

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is an unusual situation.

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I'm trying to sort of be fair and just and equitable, but it's

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difficult if you don't tell him what the proof is that this

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station is involved anyway.

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the towel and move on.

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And

And if you don't have it, throw in

You've got a lot of defendants in this

case.

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MR. AXLINE:

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THE COURT:

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You left it off the final list.

We would be happy to provide that proof.
All right.

Then do it.

And then we'll

reconvene.

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MR. AXLINE:

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THE COURT:

We'll do that by letter, your Honor.
Fine.

To your adversary.

I don't really

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need a copy.

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some proof, I mean, as opposed to a complete absence in the

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record, then my ruling's going to be that they're out of this

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summary judgment, they don't have to move now, but they reserve

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their right to move at a later date, which nobody else gets

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because they were left off the list, and if the resolution of

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this motion doesn't tell one side or the other the way the

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ruling is bound to come out, then he can make his motion before

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any trial.

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Because I think if he's satisfied that there's

All right?

MR. AXLINE:

Understood, your Honor.

Thank you.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

So now, Mr. Axline, when are you going to have this
letter to your adversary?

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MR. AXLINE:

By -- We can provide that by the end of

next week, your Honor.

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Mr. Duchesneau, you understand

too?

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All right.

THE COURT:

Well, you're talking about the 16th of

May?
The 16th of May.

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MR. AXLINE:

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THE COURT:

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MR. DUCHESNEAU:

All right.
Your Honor, Pete Duchesneau.

One

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last thing.

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have -- can I reserve my right to be able to respond to that

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letter?

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Subject or upon receipt of that letter, do I

THE COURT:

See, I don't want the letter so you'd be

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responding to each other.

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right to do is reconvene this telephone conference and say,

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this letter says absolutely nothing and your Honor should shut

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it down now.

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there's just no case.

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but if it's colorable, you'd better engage in discovery and

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worry about everything else later.

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want to, but it's not to me.

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letters.

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What you're really reserving your

Forget about putting off summary judgment;
We can talk about that if you want to,

MR. DUCHESNEAU:

So you can respond if you

I don't want a copy of these

Understood, your Honor.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

If you want to respond to each other,

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fine, or if you just want to get on the phone with me, again,

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fine, but at least you should see what he has to say, because

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apparently he concedes that what you say now, Mr. Duchesneau,

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is right, he hasn't shown you anything as to why he thinks this

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station is associated with this plume.

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MR. DUCHESNEAU:

Thank you,

your Honor.
THE COURT:

All right.

Okay.

There is a transcript

available if you want to end up ordering it.

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MR. DUCHESNEAU:

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MR. AXLINE:

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This is Pete Duchesneau.

Okay.

Thank you.

Thank you, your Honor.
o0o

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]