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, (212) 805-0300. 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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1 8571orac 1 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x 3 ORANGE COUNTY WATER DISTRICT, 4 Plaintiff, 5 6 v. UNOCAL CORP., et al., 7 8 04-CV-4968 (SAS) Defendants. Telephone Conference ------------------------------x New York, N.Y. May 7, 2008 3:32 p.m. 9 10 Before: 11 HON. SHIRA A. SCHEINDLIN, 12 District Judge 13 APPEARANCES 14 15 16 MICHAEL D. AXLINE, ESQ. Attorney for Plaintiff PETER DUCHESNEAU, ESQ. Attorney for Defendant USA Gasoline 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 8571orac 1 (In chambers) 2 THE COURT: 3 COUNSEL: 4 THE COURT: Okay. Hi. This is Judge Scheindlin. Good afternoon, your Honor. And we have a court reporter, so it's 5 difficult to distinguish between your voices, so when you 6 speak, would you say, this is Mr. Axline or, this is 7 Mr. Duchesneau. 8 MR. DUCHESNEAU: 9 MR. AXLINE: 10 THE COURT: 11 Certainly. This is Mr. Axline and yes, I will. Okay. So I have letters from you folks. One second. 12 I have an April 28th, 2008 letter from 13 Mr. Duchesneau and I have a response May 1st, 2008 from 14 Mr. Axline, and the dispute that USA Gasoline has raised is 15 that it wants to strike Orange County's reference to a USA 16 station as a contributor to one of the focused plumes which 17 Orange County raised in its supplemental opposition to the 18 defendant's statute of limitations motion. 19 And it is a strange picture. In the first 20 designation, February 9th, 2007, Orange County did not 21 mention the USA station. 22 it to designate stations associated with plumes, and it wasn't 23 listed on February 9th. 24 it in a revised list that was sent on April 11th and 25 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. (212) 805-0300 3 8571orac 1 explained by Orange County in this letter writing, USA station 2 was not listed on the April 30th list, which seemed to really 3 be the final list. 4 the list of focused plumes and associated stations. 5 station was not on the list. 6 Order 25, which was issued in March of 2007, said the revised 7 lists were to be the basis for station-specific discovery from 8 the defendants. 9 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 10 always helpful to know what the judge thinks, and based on 11 these letters, it seems to me that Orange County is out of 12 luck. 13 not in this because it was not on the final list. 14 right to rely on that. 15 suddenly, in a supplemental brief almost 11 months later, it 16 just turns up again, and Orange County says, well, you know, 17 don't worry about it, there was some prior discovery long ago, 18 we had some document production back in '04, four years ago, 19 and that's enough for USA to make a motion. 20 really fair for Orange County to tell USA what's sufficient to 21 make a motion. 22 thing and to have full discovery rights and to make a motion 23 based on the discovery. 24 weren't in it, they didn't do that. 25 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. (212) 805-0300 4 8571orac 1 So given that, if you want to be heard, fine, but if 2 you want to just say, I accept the Court's ruling, that's fine 3 too. 4 MR. AXLINE: Well, I would like to say briefly, your 5 Honor, that, and of course, I would accept the Court's ruling, 6 but... 7 8 9 THE COURT: Well, no, of course. But you know what I mean. MR. AXLINE: Yes. As a practical matter, this station 10 is going to be in the case. 11 THE COURT: I do understand that and probably 12 Mr. Duchesneau does too, but not in the focused plumes that 13 we're arguing about. 14 MR. AXLINE: 15 THE COURT: Is that what you mean? That is what I mean. Yes. And I think he understands that 16 these were just focused plumes, these weren't the whole case, 17 and everybody's supposed to learn something from the outcome of 18 the motions that hopefully they will use common sense to apply 19 the remaining plumes. 20 case, but they shouldn't be in this motion. 21 the extent this motion decides one of these focused plumes that 22 they might have been associated with, you lose them as a 23 defendant for that one plume, of which you probably have many 24 other defendants. 25 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. (212) 805-0300 5 8571orac 1 let me say, I can't give you an explanation as to why they were 2 left off the April 30th. 3 THE COURT: Right. That's what I thought you were 4 going to say. 5 they have a right to rely on it. 6 that year. 7 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, 8 your Honor, there was a practical mention of it, it just makes 9 a lot of sense to try all of the stations that had been -- 10 THE COURT: I know. I know. 11 MR. AXLINE: 12 THE REPORTER: 13 THE COURT: 14 offer to Mr. Duchesneau what? 15 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 16 that could be resolved by us, between the two of us now so that 17 this station could, as it should be, be included at the first 18 trial involving the focused plumes, I would do really anything 19 to accommodate him. 20 THE COURT: Right. And I think the only problem with 21 that would be, he might agree to that if the Court made him, 22 but we shouldn't go ahead with the summary judgment as to him 23 in any event. 24 satisfied he'd had all the appropriate discovery, and by then 25 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. (212) 805-0300 6 8571orac 1 and maybe everybody could see the handwriting on the wall 2 anyway. 3 I just don't -MR. AXLINE: That makes sense, your Honor. So -- and 4 it makes sense to exclude, I guess, this station, in a way, 5 from the current statute of limitations. 6 THE COURT: That's what I'm saying. And then if you 7 engage in focused discovery and you've gotten the ruling on 8 this first motion and can see the handwriting on the wall, I 9 mean one side or the other, if the defendant nonetheless thinks 10 it has a valid motion -- I say nonetheless. I have no idea 11 what my ruling is going to be because I haven't turned to this. 12 But in any event, after the ruling, if the defendant says, we 13 have a motion, no matter what the Court has previously ruled, 14 we read it, we understand it, we have a motion, then they'd 15 have to make a separate motion at that time, which is 16 inconvenient for the Court, but it would at least restore their 17 right to make the motion. 18 motion practice now. 19 MR. AXLINE: But they shouldn't be part of the In that case, we really have no 20 objection. 21 they feel they want to make one after the Court rules. 22 think it makes sense -- and I hope I'm understanding this 23 correctly -- for the station to remain as part of the Phase I 24 trial because it's hydrogeologically -- 25 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. (212) 805-0300 7 8571orac 1 the April 11th and April 23rd letter, I don't think you'd 2 even have begging rights, so to speak, to implore the Court to 3 do that. 4 April 30th I just have to assume is kind of old-fashioned law 5 office error. 6 speak, would be that they're not ready to make the motion now. 7 8 9 10 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 11 concern with respect to the station being appropriately part of 12 the designated plume number 9, and I can actually shed a little 13 bit more light on those middle two letters, so to speak, in 14 April, which I do not think is supportive of the plaintiff's 15 position or adding stations right now to the plume. 16 The Court had initially ordered that the plaintiff's 17 designate ten plumes by the end of February of 2007, and the 18 plaintiff complied with that order by February 9th. 19 On March 1st the Court held a conference where the 20 plumes were addressed. There were submissions with respect to 21 the defendant's designations of those plumes. 22 conference, the Court ordered that plaintiffs stick with their 23 ten plumes but ordered the plaintiffs to elaborate on the 50 24 some odd other plumes, the so-called master plume list. 25 defendants would be able then to select their ten plumes. And at the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 The 8 8571orac 1 And there is what those two other letters were all 2 about when you see all the other plumes listed, and they did -- 3 when they listed plume number 19, they did list the USA 4 Gasoline station among it, then on April 30th, to make 5 everything abundantly clear, they confirmed their plumes or 6 their ten designated plume stations. 7 And I would argue that not only the plaintiff had the 8 2004 production of all the environmental reports concerning the 9 station a couple years before that, but they had demonstrated 10 11 that they were well aware of the existence of that station. THE COURT: Yes, but then you'll win your summary 12 judgment down the road, if that's all you're trying to tell me. 13 What I'm trying to say is you're out of this motion, but should 14 you have the sort of good fortune to be out of the liability 15 for that plume because somebody made an error between 16 April 23rd and April 30th -- probably not. 17 prejudice is eliminated, Mr. Axline says he has a good faith 18 basis to believe that this is a station associated with the 19 plume, I'm not going to say the record is strong enough now to 20 compel you to move because you haven't had discovery. 21 can go ahead and wrap up the discovery, and if you still have a 22 summary judgment motion, which really is what you were arguing 23 a minute ago, that they knew back in '96 or thereafter, if you 24 win it, you win it. 25 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. (212) 805-0300 9 8571orac 1 with plume number 9 on April 11th and April 23rd. 2 dropped off on the 30th, I don't know, and you really don't 3 know either. 4 MR. DUCHESNEAU: Pete Duchesneau again. Why it If I can add 5 something, your Honor. It would be my view here, your Honor, 6 that given the year or so that has passed that it should be 7 incumbent upon the plaintiff at this point in time to explain 8 why it believes it is appropriately subject to this plume 9 number 9. That may actually indeed eventually -- should cut 10 short the discovery in the future, but given that they were 11 aware of the existence of the station, there's nothing that has 12 been provided so far in this Rule 56.1 statement that says 13 absolutely anything about why they even contend it's part of 14 the plume. 15 THE COURT: 16 a completely different point. 17 why it was on the April 11th and April 23rd and not 18 April 30th. 19 we forgive if we can get around prejudice. 20 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 21 Mr. Axline says he has proof on which a reasonable juror could 22 find that this station was involved with plume number 9. 23 have no idea what that proof is. 24 25 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. (212) 805-0300 10 8571orac 1 statement, your Honor. 2 district selected the stations that were associated with each 3 plume. 4 He gave a brief overview of how the MR. DUCHESNEAU: Your Honor, Pete Duchesneau again for 5 USA Gasoline. 6 reviewed it again yesterday, and there's absolutely no mention 7 of a USA Gasoline station. 8 9 10 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 11 declaration did not separately identify all of the stations. 12 He just gave an explanation for how they were associated with 13 the plumes. 14 THE COURT: Well, so Mr. Duchesneau's right. At this 15 point in time you haven't put on the table any proof to keep 16 this station in anyway in plume number 9 because you just said 17 in a conclusory way, well, if we're going to try plume number 18 9, we certainly should try the USA Gasoline station with it 19 since it's associated with it. 20 None of us know what you're talking about. 21 that this particular station is associated with it? 22 you couldn't survive a summary judgment anyway. 23 would be one line: 24 this station is involved with this plume, close the brief and 25 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. (212) 805-0300 11 8571orac 1 MR. AXLINE: Well, Mike Axline, your Honor. The 2 district didn't submit extensive proof on causation because we 3 were opposing a statute of limitations motion. 4 THE COURT: I understand that, but he's saying, this 5 is an unusual situation. 6 I'm trying to sort of be fair and just and equitable, but it's 7 difficult if you don't tell him what the proof is that this 8 station is involved anyway. 9 the towel and move on. 10 And And if you don't have it, throw in You've got a lot of defendants in this case. 11 MR. AXLINE: 12 THE COURT: 13 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. 14 MR. AXLINE: 15 THE COURT: We'll do that by letter, your Honor. Fine. To your adversary. I don't really 16 need a copy. 17 some proof, I mean, as opposed to a complete absence in the 18 record, then my ruling's going to be that they're out of this 19 summary judgment, they don't have to move now, but they reserve 20 their right to move at a later date, which nobody else gets 21 because they were left off the list, and if the resolution of 22 this motion doesn't tell one side or the other the way the 23 ruling is bound to come out, then he can make his motion before 24 any trial. 25 Because I think if he's satisfied that there's All right? MR. AXLINE: Understood, your Honor. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 8571orac 1 2 THE COURT: So now, Mr. Axline, when are you going to have this letter to your adversary? 5 6 MR. AXLINE: By -- We can provide that by the end of next week, your Honor. 7 8 Mr. Duchesneau, you understand too? 3 4 All right. THE COURT: Well, you're talking about the 16th of May? The 16th of May. 9 MR. AXLINE: 10 THE COURT: 11 MR. DUCHESNEAU: All right. Your Honor, Pete Duchesneau. One 12 last thing. 13 have -- can I reserve my right to be able to respond to that 14 letter? 15 Subject or upon receipt of that letter, do I THE COURT: See, I don't want the letter so you'd be 16 responding to each other. 17 right to do is reconvene this telephone conference and say, 18 this letter says absolutely nothing and your Honor should shut 19 it down now. 20 there's just no case. 21 but if it's colorable, you'd better engage in discovery and 22 worry about everything else later. 23 want to, but it's not to me. 24 letters. 25 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. (212) 805-0300 13 8571orac 1 THE COURT: If you want to respond to each other, 2 fine, or if you just want to get on the phone with me, again, 3 fine, but at least you should see what he has to say, because 4 apparently he concedes that what you say now, Mr. Duchesneau, 5 is right, he hasn't shown you anything as to why he thinks this 6 station is associated with this plume. 7 8 9 10 MR. DUCHESNEAU: Thank you, your Honor. THE COURT: All right. Okay. There is a transcript available if you want to end up ordering it. 11 MR. DUCHESNEAU: 12 MR. AXLINE: 13 This is Pete Duchesneau. Okay. Thank you. Thank you, your Honor. o0o 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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