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

Filing 4324

TRANSCRIPT of Proceedings re: Conference held on 10/6/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Karen Gorlaski, (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 Ea69mtbc Telephone Conference 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------x 3 IN re MTBE (ORANGE COUNTY WATER DISTRICT) 1 4 04 CV 4968(SAS) 5 6 ---------------------------------x New York, N.Y. October 6, 2014 2:37 p.m. 7 8 Before: 9 HON. SHIRA A. SCHEINDLIN 10 District Judge 11 APPEARANCES (Via Telephone) 12 13 14 MIKE AXLINE DUANE MILLER TRACEY O'REILLY Attorneys for Plaintiff Orange County Water District 15 16 17 18 19 LISA GERSON Liaison Counsel & Exxon Mobil Corporation for Defendant JEFF PARKER WHITNEY ROY Attorneys for Defendant Exxon Mobil JOHN ANDERSON Attorney for Defendant ConocoPhillips 20 21 JEREMIAH ANDERSON CHARLES CORREL Attorneys for Defendant Chevron 22 23 24 KEN EHRLICH Attorney for Defendant G&M JOHN DICHELLO Attorney for Defendant Lyondell 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 Ea69mtbc Telephone Conference 1 APPEARANCES (Via Telephone) 2 DIANA MARTIN Attorney for Defendant Tesoro 3 4 5 STEPHANIE WEIRICH Attorney for Defendant BP SAMANTHA CASE Attorney for Defendant USA Gasoline 6 7 8 PETER CONDRON Attorney for Defendant Shell WILLIE EPPS Attorney for Defendant Valero 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 Ea69mtbc Telephone Conference 1 (In chambers) 2 THE COURT: Good afternoon. I'm just going to call 3 the roll. I have a court reporter here. Many of you have been 4 on conference calls with me you know it's very important you 5 state your name every single time before you speak. 6 just say "here." 7 (Roll called) 8 Is there anybody who I didn't call on? 9 Okay. Right now 10 Silence means there's nobody I didn't call on. So I know this is somewhat inefficient to try to have 11 an oral argument on a telephone conference which is so 12 difficult because of the difficulty of reporting it. 13 telephone, as you know, when you're speaking it cancels my 14 voice so it's very hard for me to interrupt with a question. 15 So I ask you to speak slowly and pause a lot. 16 The I should have I guess had this oral argument when you 17 were all here last week. 18 up to speed yet on the briefs. 19 I realized an oral argument would be useful. 20 I kind of missed that beat. Wasn't But when I did get up to speed The issue is not surprisingly -- I can quote from CMO 21 No. 60 at page three. The issue is whether each release site 22 identified as part of a focus plume contributed to 23 contamination of the wells associated with that plume. 24 provides no proof that a particular release site contributed to 25 such contamination and OCWD will not drop the release site from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 If OCWD 4 Ea69mtbc Telephone Conference 1 the focus plume, then defendants may file a motion for summary 2 judgment. 3 That was CMO No. 60 So the question is: Has Dr. Wheatcraft's model met 4 that test of proof that a particular release site contributed 5 to such contamination? 6 And that's a problem, given what he said. He says in 7 his declaration that he has not, "Done any models in which we 8 isolated a particular source and ran only that source." 9 He does say, however, that he used MTBE release data 10 from each individual defendant in creating his model -- I don't 11 quite know how he did that but he says he did that -- and that 12 that data about each individual station helped him create the 13 model. 14 any models in which we isolate a particular source and ran only 15 that source." 16 But then he, of course, goes on to say, "We've not done So the problem is his model seems to potentially 17 connect a group of defendants' MTBE releases to a production 18 well but it doesn't seem to show that any particular station's 19 MTBE release caused OCW's injury. 20 Look, everything turns on my answering this question 21 because if Wheatcraft fails to make that connection there's a 22 whole lot of motions I don't need to reach. 23 out based on that failure. 24 25 Everybody will be So it's a fairly important issue and I didn't want to decide it without giving counsel an opportunity to be heard. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 Ea69mtbc Telephone Conference 1 So Mr. Axline, Mr. Miller, or Ms. O'Reilly, which of 2 the three of you would like to sort of defend what Wheatcraft 3 does and whether he meets the standard that I set forth about a 4 particular release site; that is, a station having contributed 5 to the threatened or actual contamination. 6 Who wants to start? 7 MR. AXLINE: 8 THE COURT: 10 MR. AXLINE: 12 I will give it a go. 9 11 This is Mike Axline, your Honor. Okay. Part of my response to that is going to try to make sure that I fully explain what Mr. Wheatcraft did. THE COURT: Let me interrupt you already with a 13 question. I assume that I'm on the right track in saying that 14 it's either Wheatcraft or nothing? 15 anything else for that, are you, to answer the question? You're not going to rely on 16 MR. AXLINE: With respect to CMO 60, no. 17 However, we did submit additional causation evidence 18 in the form of Mr. Herndon's declaration stating that each 19 station that was within the capture zone of a well or group of 20 wells will contribute MTBE to those wells. 21 So, with respect to CMO 60 we're relying on 22 Mr. Wheatcraft. 23 of the type that's involved in the City of New York case we 24 also have the declaration of Roy Herndon. 25 But with respect to causation more generally THE COURT: I think the case that is most analogous SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 Ea69mtbc Telephone Conference 1 now is Fresno. 2 dismissed? 3 Is this the same as Fresno and should be Now I realize the difference is you've got yourself a 4 fate and transport expert, which is Wheatcraft, but then the 5 answer is all Wheatcraft. 6 Okay. Let's get started. 7 MR. AXLINE: So Mr. Wheatcraft's task was to identify 8 whether the stations that we had identified contributed to a 9 plume. 10 THE COURT: 11 MR. AXLINE: 12 Right. And then whether that plume contaminated wells. 13 We base our understanding not -- just on CMO 60 itself 14 but also on the runup to CMO 60 which involved a fair amount of 15 back and forth between the defendants and the plaintiffs as to 16 how to frame the case. 17 The defendants started off complaining that we had too 18 many plumes and stations and that the case was unmanageable for 19 that reason. 20 an individual station contaminated an individual well we were 21 also going to have other stations that contaminated the same 22 well and that we've only identified one station and one well, 23 the defendants were then going to start pointing fingers at 24 each other saying well that contamination came from station X, 25 Y, or Z not from station A which is my station. So, we made the point that regardless of whether SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 Ea69mtbc Telephone Conference 1 So, to solve that problem, in part, we shifted to the 2 idea of plumes where we were going to identify the plumes that 3 would include the stations that we thought were culpable for 4 the contamination in a well, which we did. 5 We then asked Mr. Wheatcraft to look at whether the 6 releases at each individual station that was associated with an 7 plume contributed MTBE to that plume. 8 at all of the results from each station, modeled where that 9 MTBE was going, and concluded that each station did, in fact, 10 11 He looked contribute to the identified plumes. Now, once it gets to a plume it's sort of like a 12 passenger getting on a train. 13 on the train. 14 And he did. At the station the passenger is The next stop is the well. And this is uncontested in terms of the evidence 15 because the defendants submitted no expert testimony or 16 declarations in support of their motion. 17 Once the MTBE is on the train, so to speak, it's got 18 to plume. Then there's nothing that stands between that 19 passenger getting on at the plume station and getting off at 20 the well station, which is where Mr. Wheatcraft concluded the 21 plumes would have an impact. 22 So that is all -- 23 THE COURT: 24 25 So let me just ask the question. So I understand. So are there 31 stations in play here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 Basically are 8 Ea69mtbc Telephone Conference 1 you saying Wheatcraft's testimony is that each of these 31 2 contributed to the plume in its area and that plume is going to 3 contaminate the production well. 4 MR. AXLINE: 5 THE COURT: So he doesn't -- Yes. So he doesn't have to say station A 6 contributed X amount or X quality but just I know that station 7 A is part of plume A, something like that? 8 MR. AXLINE: 9 THE COURT: Yes. Well then why did he say he's not done any 10 models in which we isolated a particular source and ran only 11 that source? 12 13 What does that statement mean? MR. AXLINE: Well, what the defendants are saying is that he -- 14 THE COURT: Wait. 15 Wait. 16 Wait. want to know what that statement means to you. 17 Wait. I didn't ask you that. I don't care what the defendants are saying. He said in his declaration, and I'm quoting. I He's not 18 done any models in which we isolated a particular source and 19 ran only that source. 20 21 22 So I'm just asking you: What does that mean? Your witness said it. MR. AXLINE: That means I think pretty 23 straightforwardly that he didn't break out individual stations 24 and trace only that station to only individual wells. 25 THE COURT: I'm still a little confused. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 You're 9 Ea69mtbc Telephone Conference 1 saying he does affirmatively know that station A contributed to 2 plume A? But what doesn't he know? 3 MR. AXLINE: Yes. 4 THE COURT: Then what doesn't he know about station A? 5 MR. AXLINE: Well, he didn't determine, for example, 6 how much of the contamination from station A it will be. 7 might have been able to determine that if it had been his 8 responsibility to do so. 9 what he didn't do. 10 11 But that wasn't his task. He didn't do a quantification. He That's That's in the defendants' camp when the liability is joint. THE COURT: Right. So when he says we didn't do any 12 models in which we isolated a particular source and ran only 13 that source, you think that that's all that that means; that we 14 can't say that the plume that eventually hits the well is five 15 percent made up from station A. 16 MR. AXLINE: 17 THE COURT: 18 That's what he can't do? He didn't do that. That's correct. You think that's all the statement in the declaration means? 19 MR. AXLINE: 20 THE COURT: Yes. But you think he affirmatively does 21 testify either at deposition or declaration or expert report 22 that station A's release is part of the plume that's going to 23 hit production well B? It has hit or will hit? 24 MR. AXLINE: Absolutely. Yes. 25 In appendix A he identifies the stations that are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 Ea69mtbc Telephone Conference 1 associated with each plume. 2 THE COURT: 3 associated with each plume? He identifies the station that's 4 MR. AXLINE: Yes. 5 And then in his declaration at paragraph 8, carrying 6 over -- starts on page 1 and carries on to page 2 -- he 7 indicates which plumes are hitting which wells. 8 9 THE COURT: Okay. So that was my question to you, Mr. Axline and that was helpful. 10 Which defense counsel would lake to take the lead in 11 saying why that isn't sufficient to meet the requirements of 12 CMO 60. 13 MR. PARKER: Thank you, your Honor. 14 This is Jeff Parker. I will take the lead, although 15 you are obviously aware there are a lot of defendants involved 16 in this motion so it's possible someone else may add something. 17 THE COURT: 18 MR. PARKER: Okay. Directly addressing your Honor's issue. 19 This goes back to the March '07 conference when Mr. Miller 20 defined a plume and he defined it to be gasoline that 21 commingles at the well. 22 23 24 25 THE COURT: second. And your Honor -- At the well. Wait. Wait. Wait. Wait a You mean at the production well? MR. PARKER: conference. That is what he said at the March 1, 2007 That's on page 13. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 Ea69mtbc Telephone Conference 1 THE COURT: 2 the plume that hits the well. 3 that release site a part of the problem, so to speak. 4 Why is that a problem? That's okay. If it's part of It still makes So worrying about allocation or damages is a different 5 issue. 6 site is part of the plume that hits the well, that sounds like 7 liability. 8 percentage of liability and, therefore, you can't calculate 9 damages. 10 But liability, so long as material from the release You can argue later that you can't figure out the But that's a different motion than saying there is no proof of liability. 11 MR. PARKER: 12 And the next step in looking at this is the Court 13 actually set that bar at the March 4, 2010 conference when 14 Mr. Axline attended and said exactly, and this is Exhibit 79 in 15 our papers, attached to Ms. Roy's declaration, said exactly 16 what the plaintiff had to do. 17 going to produce at some point a report that says these are the 18 sources impacting this particular site. 19 said: 20 station to the well. 21 I understand that, your Honor. And that is they have -- is Mr. Axline went on and So we will be providing an expert report linking each THE COURT: But he still is. Isn't he saying that 22 station A is contributing material to plume -- let's call it 23 plume B and plume B is hitting production well C. 24 direct link between A and C that way. 25 MR. PARKER: That's what Mr. Axline said. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 So there's a 12 Ea69mtbc Telephone Conference 1 THE COURT: 2 MR. PARKER: Right. That's actually not what Dr. Wheatcraft 3 said. And I think it's important -- for instance plume 1, as 4 they've -- Mr. Axline just identified. 5 stations. 6 THE COURT: 7 MR. PARKER: 8 THE COURT: 9 MR. PARKER: 10 It lists numerous Right. That it attributes. Right. Well on the map, if you were to draw a wide V, bigger than 90 degrees. 11 THE COURT: Right. 12 MR. PARKER: 13 The well MBTAMB is straight down at the point of that The well -- pointing straight down. 14 V. 15 station is 6,000 feet to the northwest. 16 that are never going to hit unless you actually bring them to 17 the well. 18 One station is 4,000 feet to the northeast. Another Those are two trains And that's what he did not do. THE COURT: No, he didn't. But he says they both 19 contributed to the plume. And the plume hits the well -- I 20 mean what I can't do, obviously, Mr. Parker, is try the case on 21 a motion. 22 judgment motions. I have to always repeat that for all summary That's the one thing I can't do. 23 So if there is an expert who is not later stricken on 24 your Daubert analysis, which will be a different motion -- but 25 if there is an expert who says: I realize that A is to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 Ea69mtbc Telephone Conference 1 northeast and B is to the northwest and one is 4,000 feet and 2 one is 6,000 feet, but their material comes together in the 3 same plume and will hit the well. 4 not for me to quarrel with him unless he's stricken by Daubert 5 before the trial. 6 If that's what he says it's But at this point, summary judgment, if that's the 7 evidence of record, then it seems to me they've solved the 8 causation problem with acceptable proof. 9 MR. PARKER: Your Honor, I understand that. 10 The reason I was pointing to plume 1 as an example is 11 because those two points, the direct line from those two wells 12 never meet unless he actually tracks from the station into the 13 well. 14 THE COURT: 15 MR. PARKER: No. No. Why not into the plume? Because the plumes are coming different 16 directions. 17 towards a well -- they're coming from opposite sides. 18 only way to meet is actually to meet in the well. 19 says that. 20 21 22 If they're on a straight line coming radially So the And he never He says I never traced from any individual -- THE COURT: I don't understand that. You're skipping the plume. I don't understand why they both -- both release sites 23 can't release material that finds its way into the plume, even 24 if the plume, so-called, is the last three feet -- I mean 25 that's a silly example -- but the last three feet before the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 Ea69mtbc Telephone Conference 1 well, as long as he says in his expert opinion -- you can 2 challenge it when the time comes, either a Daubert or a 3 trial -- that that material from those totally different 4 geographic sources came together at the plume and then the 5 plume hits the production well. 6 So it's true he can't go from the station to the well. 7 But he goes from the station to the plume and then insists that 8 the plume hits the well. 9 MR. PARKER: But, your Honor, the premise of their 10 plume concept, going back to what they said in court, was the 11 typical -- they said typical of California and your Honor noted 12 also typical of New York. 13 each and a well a long ways away, so they all get together near 14 the stations and then move towards the well. 15 THE COURT: 16 MR. PARKER: The four corners with a station on Right. My point of this, and of his entire 17 exercise, what Dr. Wheatcraft did, is that's not what he has 18 done. 19 of the well. 20 They have taken wells on -- stations on opposite sides THE COURT: I heard that. But the whole point of fate 21 and transport is he's going to, I guess, give expert testimony 22 that because of the way the material moves through the 23 groundwater, whatever, it got at some point to the same plume. 24 25 Now, I'm no expert. that. I don't know how it could do And I don't know whether that testimony will turn out to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 Ea69mtbc 1 Telephone Conference be credible or whether it will even survive Daubert. 2 But if that's what he says now, you know the summary 3 judgment standard. 4 the inference in favor of the nonmoving party. 5 strike you as impossible, and that would be for Daubert. 6 need to decide summary judgment. 7 I've got to believe him and I have to draw So it may But I Unless you think, Mr. Parker, that's not what he's 8 saying. I thought that was what he's saying and maybe 9 Mr. Axline has to jump back in. 10 Mr. Axline, do I correctly describe what he's saying? 11 MR. AXLINE: 12 THE COURT: Yes, your Honor. I do. He says from the completely 13 different geographic sources somehow the material comes 14 together in the same plume. Mr. Axline. 15 MR. AXLINE: 16 I thought you were asking if you were correctly 17 I'm sorry. representing what Mr. Wheatcraft said. 18 THE COURT: Yes, I am. I am asking that. Is that 19 what he's saying, that these two very different geographic 20 location stations that Mr. Parker is talking about, somehow the 21 material from both somehow gets to the same plume? 22 23 Is that what he's saying? Is that what Wheatcraft is saying? 24 MR. AXLINE: Yes. 25 MR. PARKER: Exhibit 79 is where -- the deposition SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 Ea69mtbc Telephone Conference 1 excerpts from Dr. Wheatcraft. And the plaintiff's 2 characterization in their papers is different than his 3 testimony under oath and, frankly, different than his 4 declaration which says -- he didn't isolate each station. 5 the way the model works is they're not mixed at a long distance 6 like in a tank, for instance. 7 THE COURT: 8 MR. PARKER: 9 THE COURT: 10 MR. PARKER: And No. He said they're from different spots. Yes. The way the modeling experts do this is 11 they can isolate each station and show that a station, actually 12 its contamination got there. 13 THE COURT: 14 MR. PARKER: 15 THE COURT: 16 He's stopping at the plume. You can't say "got there." Got where? Got to the well. But he's not. And he is saying -- I 17 mean -- I don't know how many times I should say it. He may be 18 wrong. 19 Daubert. 20 from the two very distinct stations that are geographically 21 separated got to the same plume, joined together, created one 22 plume and that plume got to the well. 23 MR. JOHN ANDERSON: It may not even be a possible theory that can survive But what he is saying is that somehow the material 24 THE COURT: Your Honor, this is John Anderson. If I may just add one point? 25 That's his theory. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 Ea69mtbc 1 Telephone Conference MR. JOHN ANDERSON: That points is -- I'm the one who 2 took Dr. Wheatcraft's deposition. 3 lot of detail. 4 I've been through this in a What Dr. Wheatcraft did not say in his attempt to 5 salvage what he did in trying to defeat this motion is he does 6 not say that the entire plume or any defined amount of the 7 plume will ever get to the well. 8 the plume and the plume contaminates the well. 9 THE COURT: 10 All he says is it goes into Right. MR. JOHN ANDERSON: And if you juxtapose that against 11 his testimony under oath in the deposition. 12 he acknowledged that he did not establish that any MTBE from 13 any station itself got to the well. 14 assessing the issue is simply said that some part of the plume 15 will get to the well. 16 contributed by the individual -- 17 THE COURT: In the deposition So what he's done in He does not say that the parts that were I know. But that takes me back a decade. 18 I mean that takes me back to the commingled product theory. I 19 don't think you can disentangle material that's combined in a 20 plume and say okay I know that these following -- that releases 21 at six stations got together to form a plume but then I can't 22 tell you which station's material is the part of the plume that 23 hit the well. 24 a tank. 25 six different sources all mixed up in one big tank. That would be impossible because it's as if it's That plume is like a tank. It's now got material from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And to 18 Ea69mtbc Telephone Conference 1 say -- wait. 2 into somebody's well or car or something you wouldn't know 3 whose molecules were in that gallon and that's what I said 4 years ago. 5 I said then and I still believe that. 6 If you had a tank and you siphoned off one gallon This is a combined gas or liquid, whatever I said, So if all these releases from six places got all 7 commingled in one plume, I don't think anybody can say when it 8 hit the well. 9 not B through E. 10 Oh, that must have been only from station A but That's impossible. So that's at least my image. 11 sophisticated person. 12 It's all mixed up. I'm not a scientifically in the plume." 13 14 But that's my image of "coming together MR. JOHN ANDERSON: This is a geographic area that covers many, many square miles. 15 THE COURT: 16 MR. JOHN ANDERSON: 17 This is not a tank. Right. And the laws of hydrogeology, the laws of physics apply to each molecule. 18 THE COURT: Right. 19 MR. JOHN ANDERSON: I will represent to you, and I 20 don't think Mr. Axline will deny this and, in fact, 21 Dr. Wheatcraft testified. 22 that analysis of those molecules from each station. 23 not a situation where you have a tank, got all jumbled up and 24 we can't identify what came out the spigot. 25 large and very diverse geographic area. He is, in fact, capable of doing This is This is a very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 Ea69mtbc Telephone Conference 1 THE COURT: That's what a plume is? 2 MR. JOHN ANDERSON: 3 he's talking about. 4 THE COURT: 5 MR. JOHN ANDERSON: I'm saying that this plume that Right. Is a large, multi-square-mile 6 area. 7 tremendous amount of area that Dr. Wheatcraft is including in 8 this model. 9 Mr. Parker actually has the map. He can tell you the My point is that Dr. Wheatcraft acknowledged that he 10 did not determine whether molecules from my station or 11 Mr. Parker's station or Mr. Condron's station did or ever will 12 get to a well. 13 THE COURT: Wait. I do want -- hold on. 14 that. 15 testified that he could have done it but didn't. I understand But what you've added is that -- you're saying he also 16 MR. JOHN ANDERSON: 17 THE COURT: That's the -- But did not. That's the surprise to me. He said he 18 could have done that. In other words, he traces it as far as 19 the plume. 20 the well but I could have figured out whether station A's 21 material was in the part that hit the well but I didn't bother. 22 That's what you're describing. And then he kind of quits and says the plume hits 23 MR. JOHN ANDERSON: 24 THE COURT: 25 Okay. Correct. Well that's surprising. Mr. Axline, could you respond to that, that he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 Ea69mtbc Telephone Conference 1 could have done it but just gave up or laid back or just didn't 2 bother. 3 4 MR. AXLINE: Well, it's not quite that simple as you might imagine, your Honor. 5 The defendants initially when we began this case 6 complained that we were going to be doing exactly what 7 Mr. Anderson described and that that was far too much and that 8 we needed to take a different approach. 9 approach was to identify plumes. And that different 10 And the plumes were defined not as Mr. Parker 11 described it to you but, rather, formally in CMO 25 because of 12 the dispute over what the impact of having these different 13 stations would be. 14 OCWD's reply submission shall identify the, quote, plumes of 15 which OCWD is currently aware. 16 understood to mean a mass of contaminant originating from one 17 or more sources. 18 And CMO 25 states in subpart (b) that THE COURT: Okay. The term "plume" is now My question to you is Mr. Anderson 19 just argued, that's fine, you've got the station material as 20 far as the plume. 21 yes, the plume hits the well -- not all of it, it's hundreds of 22 square miles, so the tip of it, the southern tip, the northern 23 tip -- some part of it begins to hit the well. 24 have figured out whose material was in the part that hit the 25 well. But he could have -- he could have then said And he could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 Ea69mtbc 1 2 Telephone Conference Is that true or not true? have but just didn't? 3 MS. O'REILLY: Did he acknowledge he could That's what I wanted your response to. Your Honor, this is Ms. O'Reilly. 4 can address that question very briefly. 5 I Dr. Wheatcraft on his modeling. 6 THE COURT: 7 MS. O'REILLY: I worked with Well then go ahead. What Dr. Wheatcraft said is it may be 8 possible. It's very -- nearly impossible because of the way 9 the model is constructed and the way you have to track it. 10 Every time you run a fate and transport model you have to run 11 all of the production wells that are running. 12 run all of the groundwater. And you have to 13 So to track an individual station is -- you can 14 potentially run it, but then you have all of these other 15 complications, all of the other MTBE coming in and you can't do 16 a point-to-point tracking like they are suggesting given the 17 size of the model and the size of the area. 18 And what we Wheatcraft explained is if defendants 19 wanted -- their experts got it. 20 do it, you can try and do it. 21 THE COURT: 22 23 He said if you want to try and Their experts didn't do it. But Wheatcraft said he could do it or he -MS. O'REILLY: He said it may be possible if you 24 have -- they didn't ask him what was required to do it. 25 it's a very complex process in order to do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 And And they 22 Ea69mtbc Telephone Conference 1 didn't ask him what it would take to do that. 2 asked him the question: 3 possible. 4 him what it would require to do that. 5 Is it possible? They simply He said: It may be But it's a very complex process and they didn't ask THE COURT: Well do you agree with Mr. Anderson that 6 only a part of a plume actually then is in contact with the 7 well and that it is possible that one could isolate whose 8 material is in that part of the plume? 9 strange to me, but I'm not deep into science and you and 10 11 Because it still sounds Mr. Anderson are. MS. O'REILLY: No, I don't agree. 12 realistic. 13 model was the reality is. 14 It's not reality. But it's not THE COURT: And what Wheatcraft did was And the reality, according to you, is that 15 you really can't disentangle the identity of the molecules in 16 the part of the plume that hit the well? 17 18 MS. O'REILLY: Yes, your Honor. Is that the reality? Just as you described it in your discussion with Mr. Anderson. 19 THE COURT: 20 MR. AXLINE: Okay. So that is your theory. Mr. Wheatcraft's declaration in paragraph 21 10 also makes the point -- I'm reading from his declaration 22 now -- that "The only exit for water from the aquifer is 23 through production levels. 24 plan indicates that 98 percent of water in the aquifer will 25 eventually exit to production wells." OCWD's 2009 groundwater management SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 Ea69mtbc 1 Telephone Conference So even if Mr. Anderson were correct, Mr. Wheatcraft 2 makes it plain that the MTBE that was released from these 3 stations is going to impact production wells like -- 4 THE COURT: And you said "is going to," is going to. 5 In this case you're talking about actual harm and threatened 6 harm? 7 MR. AXLINE: Yes. 8 THE COURT: Okay. 9 Now, Mr. Parker, I think what was next? Yes. Go ahead. 10 MR. PARKER: Thank you, your Honor. 11 To answer the specific question you posed to 12 Mr. Axline and Ms. O'Reilly, Dr. Wheatcraft was asked in his 13 deposition, and this is Exhibit 73, page 58 of the PDF filing 14 but his transcript page 116 starting. 15 line 2. 16 modeling, to identify which service station caused the 17 contamination which resulted in MTBE arriving in and being 18 detected in individual wells?" 19 The answer: And in the question: The question starts on "Are you able, based on your "The model could be used to do that. 20 have not been asked to do that and I have not done it. 21 I haven't done so." 22 I He goes on to ask about modeling individual sites. 23 And he repeatedly says: 24 particular station in the course of our modeling. 25 We did not analyze or isolate a So he admits in the pages in the record that he could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 Ea69mtbc Telephone Conference 1 have done it and this model could be used for it. 2 that he didn't do it. 3 He admits And it's their burden to show normal causation, it's 4 not possible to show another way, before going on to some 5 alternative method. 6 choice to not analyze it in that way. 7 THE COURT: He admits right there that they made a But given Mr. Axline's last argument, it's 8 not as if only a tip of an iceberg is what hits the well. 9 According to Mr. Axline, if I understood what he said, 10 eventually 98 percent of this material or this plume will, in 11 fact, eventually come in contact with the production well. 12 Unless I misunderstood. 13 Is that what you said, Mr. Axline? 14 MR. AXLINE: 15 Mr. Wheatcraft's declaration. 16 THE COURT: 17 That was correct. That's paragraph 10 of I just want to make sure I summarized it correctly. 18 MR. AXLINE: You did. 19 MR. PARKER: Your Honor, based on that. That is an 20 extremely broad general opinion not applicable to any 21 particular site. 22 THE COURT: No. 23 applicable to every site. 24 It's applicable -- in the end it's this. 25 I mean I think I'm understanding Again, it may be theoretically possible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 It may not 25 Ea69mtbc Telephone Conference 1 be worth it because essentially all of the material that hits 2 the plume is either hitting the well now or will over time. 3 And if it's really as high as 98 percent there is this hot new 4 word called proportionality. 5 would plaintiffs have to spend if it's virtually all going to 6 get there even if it's over decades. 7 City of New York case that things may not happen for 50, 60 8 years. 9 it's all going to get there sooner or later. How much more would I require or We faced this idea in the But the Circuit affirmed that notion of injury. So And if he can 10 trace it from the station to the plume, and that's what this 11 argument started out with, then it may be that causation is met 12 for now, for summary judgment. 13 Don't get me wrong. You have many other motions. I'm 14 just trying to focus on this one because it's the whole case. 15 There are still other motions and other attacks that have to be 16 reached if I get over this one. 17 at Daubert. 18 certainly not over. 19 the plaintiff survives Daubert, the jury won't buy this. 20 And then you get another shot And then you get another shot at trial. So it's It may be that when you get to trial, if MR. JOHN ANDERSON: What Mr. Axline actually read from 21 Dr. Wheatcraft was, and I'm not sure if you read it correctly, 22 but what he said was that 98 percent of the water -- 23 THE COURT: Yes. 24 MR. JOHN ANDERSON: 25 THE COURT: -- will eventually -- Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 Ea69mtbc Telephone Conference 1 MR. JOHN ANDERSON: 2 THE COURT: 3 MR. JOHN ANDERSON: 4 this plume. -- mix into drinking water wells. Yes. It was not any testimony about And it has no time limit on it whatsoever. 5 THE COURT: Right. 6 MR. JOHN ANDERSON: And we all know for this case that 7 we're talking about not tens of years. 8 aquifer that has been dated as hundreds and hundreds of years 9 old. 10 There's water in the That statement was not about the plume. And that 11 statement was not about any of the wells that are involved in 12 this case. 13 That statement was a general statement that if you go 14 indefinitely into the future eventually this water is going to 15 come out. 16 THE COURT: Right. 17 MR. JOHN ANDERSON: And if you think about that, the 18 concentration of MTBE in the entire aquifer that eventually 19 comes out as dozens or hundreds of wells would be parts per -- 20 you can't even imagine how low that would be. 21 THE COURT: Right. 22 MR. JOHN ANDERSON: That was a statement that was not 23 directly involved in this particular case. 24 CMO 60 where we started off this argument. 25 THE COURT: And we get back to Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 Ea69mtbc 1 Telephone Conference MR. JOHN ANDERSON: The plaintiff had the burden of 2 showing that MTBE contamination from specific stations would 3 get to specific wells. 4 deposition many times that he could have done it but he was not 5 asked to do so. 6 is the plaintiff's burden. 7 Dr. Wheatcraft admitted to me in the And as Mr. Parker accurately pointed out this THE COURT: They did not meet it. I know you're an advocate and you have to 8 put it as strongly as that but I feel obviously somewhat stuck 9 in the middle here. It may be I have to accept a supplemental 10 declaration where he explains what he meant by "I could have 11 done it." 12 Would it take billions of dollars? 13 what he means by "could have been done." 14 Ms. O'Reilly's argument and Mr. Axline's argument is sort of 15 there's a theoretical possibility but, no, we didn't require it 16 because it would be so -- so difficult as to come near the word 17 impossible. 18 What would it take to do it? Would it take years? Maybe he better explain Because At least that's how I'm hearing them. But I don't know if that's true. I may be making that 19 up. 20 lot of costs or it would have taken years for a ridiculous 21 cost. 22 without it. 23 It may be he could have done it in two months for not a So I don't know the answer to that and I'm kind of stuck So since I do care to get this right -- it's an 24 important case, it's been around a long time -- I'm not adverse 25 to allowing him to explain the answer that "it could have been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 Ea69mtbc Telephone Conference 1 done."What would it take to do it? 2 maybe it does reach the point of near impossibility or maybe 3 not. 4 didn't want to meet their burden and find out who's in and 5 who's out. 6 lawyers have ethical obligations. 7 that question. 8 it means to say it could have been done or could be done. 9 need to understand that. 10 11 Why didn't he do it? And Maybe they just didn't want to go there because they But lawyers are submitting the declaration and So he can't just not face He has to meet that question and explain what I Mr. Axline or Ms. O'Reilly, do you know the answer of what he meant by it could have been done? 12 You implied, Ms. O'Reilly that you know the answer and 13 it's not realistic. 14 mean? 15 How do you know that? MS. O'REILLY: 16 specifically. 17 defended it. 18 What does that Well I don't know the answer impossible. 19 20 I was at Dr. Wheatcraft's deposition. And my understanding was that it is nearly THE COURT: But I don't have that in the record. That's your understanding. 21 MS. O'REILLY: 22 THE COURT: 23 possible. 24 wasn't asked. 25 I They didn't ask that question. Well, they did. They asked if it's And he said a number of times it is possible, I I mean that's in the record. MS. O'REILLY: They only asked once could it be done SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 Ea69mtbc 1 Telephone Conference and they didn't ask what it would take. 2 THE COURT: Well I'm asking now. I need to understand 3 why there is, forgive the phrase, that particular failure of 4 proof. 5 I need something in the record because if it's as easy as 6 snapping your fingers one would have thought he would have done 7 it. 8 snapping your fingers to taking a decade, I don't know where in 9 the spectrum it would fall. 10 It is your burden. It may be because it's not realistically possible. I suspect it's not that easy. But But on a spectrum from Since you didn't do it I think you 11 need to at least go back to this guy and have him explain his 12 answer. 13 Mr. Axline first. 14 MR. AXLINE: 15 16 I understand what your Honor is saying. We'll of course be happy to oblige. I would just make the point, however, that 17 Mr. Wheatcraft's declaration was that the plume, not a portion 18 of the plume, but the plume would impact these specific wells. 19 And the defendants have not submitted a single declaration in 20 opposition to that or a declaration from one of their experts 21 saying that some portion of the plume that is their station is 22 not going to hit the wells. 23 THE COURT: 24 But, look, they're saying it's your burden of proof. 25 Well, I understand that. And they are making the argument, at least, that a plume that's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 Ea69mtbc Telephone Conference 1 50 square miles or something is not hitting a well, all 50 2 squares miles. 3 portion that is closest to that production well. 4 So it is a portion. It is the geographic And then the next part of the argument is if it's only 5 that portion it could be figured out whose material is in that 6 portion. 7 pictured a tank-like entity -- even though it's a very huge 8 tank -- where it's all mixed up and you could never disentangle 9 it and you could never know whose material is hitting the 10 11 Now that is not what I pictured. As I said, I production well. But Mr. Anderson said I'm wrong and that if you 12 understand physics and other sciences you actually could know 13 which part of the plume has whose material and which part hits 14 the well. 15 You're saying that's his argument, but he doesn't have 16 any proof of that. 17 it's your burden of proof to show that the material from the 18 stations got to the well. 19 That's all well and good but he's saying Now you're saying you've met it because Mr. Wheatcraft 20 uses the word "plume," the plume hits the well. 21 a portion of the plume or the southernmost portion or the 22 portion geographically down-gradient closest. 23 plume hits the well. 24 MR. AXLINE: 25 Yes. He doesn't say He just says the And I also think we're entitled to the presumption on the summary judgment motion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 Ea69mtbc Telephone Conference 1 THE COURT: 2 MR. AXLINE: Sure. I think currently where our evidence is 3 unopposed that the -- you know, any inferences are going to be 4 drawn in our favor. 5 shift that. 6 THE COURT: Now somehow the defendants are trying to Well because they're saying that I have a 7 wrong image of a what plume looks like. It's not one big tank. 8 It's fifty square miles or a hundred square miles. 9 hard to imagine that a hundred square miles hits something as 10 small as a production well all at the same time. 11 doesn't. 12 that makes contact and not the whole thing at once. 13 And it is It obviously okay. Obviously there is a point, a point in that plume 14 MR. AXLINE: 15 THE COURT: So that -- Understood, your Honor. But assuming that's true, my new 16 understanding of plume, then it begs the question of whether 17 you can tell whose material is in that point of contact. 18 I'm not so sure that is possible, Mr. Anderson says it is. 19 he says that Mr. Wheatcraft says it is. 20 for Mr. Wheatcraft to explain whether that's really accurate. 21 And And That's why I'm asking Is he saying that the initial point of contact between 22 a plume and a well, one could figure out whose material is in 23 that point of contact? 24 25 Still sounds surprising to me. But if that's what he says and that's what he means, I'd like to know it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 Ea69mtbc 1 2 Telephone Conference MR. JOHN ANDERSON: Your Honor, John Anderson. If I may? 3 THE COURT: Yes. 4 MR. JOHN ANDERSON: First of all, I asked 5 Dr. Wheatcraft if he could do it as part of his model. 6 yes, he could. 7 He said Mr. Parker read that testimony. I will tell you I have ten or twelve years of 8 experience with Dr. Wheatcraft. 9 Daubert motion granted against him in the Crescenta Valley 10 case. 11 And we successfully had a And we're not at that point yet. I am not saying that Dr. Wheatcraft is capable of 12 predicting anything, if you look at the overall context 13 factually. 14 But that's not part of this motion. But when he endeavors to model what happens to 15 contaminants when they get into the subsurface and into the 16 water, when he goes through that effort, he is capable as part 17 of that effort -- in fact, I will posit to you that it's 18 actually easier to model a single station than it is to model 19 the entire group of stations that he did. He's capable of 20 breaking that out as part of the process. And he did not do 21 so. 22 Within the context of what he did, he could have 23 modeled the individual stations so that the plaintiff could 24 have put on some kind of evidence -- we think it would have 25 been very weak -- but could have put on evidence on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 Ea69mtbc 1 Telephone Conference station-by-station basis, but they chose not to do that. 2 THE COURT: Well Mr. Axline started with the history 3 of that. 4 approach, apparently the defendants objected in some way and 5 said that was way too complex and they came back and said, all 6 right, then we'll do it by plume. 7 And he says while that may have been their initial MR. JOHN ANDERSON: I will defer to Mr. Parker or 8 Mr. Correl to talk about that history. 9 that that is not what happened in terms of the reasoning and 10 11 12 13 But I am quite certain what went on for the identification -THE COURT: Well then why did we get involved with plumes as opposed to going directly from station to well? MR. PARKER: That process started with them listing 14 550 plumes initially. 15 designation road from there. 16 And we started to go down the And they didn't want a single well and station pair 17 with a plume coming from station X. 18 front of your Honor multiple times because the defendants 19 thought if you want a plume from station X, then let's identify 20 that plume and do discovery on that plume. 21 22 They wanted -- we were in They then defined the plume as this -- as a well and what comes in from all directions to it. 23 THE COURT: Right. 24 MR. PARKER: Which is how they were able to get more 25 stations in the mix. Because we thought ten plumes means ten SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 Ea69mtbc 1 2 Telephone Conference stations. THE COURT: No. I never understood that. I always 3 thought a plume was a mixed entity; in other words, it drew 4 from many sources. 5 So I always understood it that way. I think I've gained as much I can from this argument. 6 I do think that Mr. Axline should contact Mr. Wheatcraft and 7 have him explain the answer that he could have done something 8 that he didn't do, what does that mean. 9 10 MR. AXLINE: Understood, your Honor. But let me close my portion of this by making the 11 following point. It was not our understanding that it was our 12 burden to make that kind of a showing. 13 THE COURT: Well, wait a minute. Wait, wait. 14 Mr. Axline you know I can't interrupt easily. What do 15 you mean, it wasn't your understanding that you had to make 16 that showing? 17 stations contributed to the impact. Of course you had to try to identify which 18 MR. AXLINE: 19 THE COURT: That's CMO 60. Yes. So what the defense is saying is that 20 merely getting it to the plume is not sufficient to get it to 21 the well and that you could have gotten it to the well and just 22 quit on the last step, from plume to well. 23 argument boils down to. 24 25 MR. AXLINE: Right. That's what this And I don't want to let the hearing resolve without making clear that in our view it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 Ea69mtbc Telephone Conference 1 our burden to get it to the plume and then to get the plume to 2 the well, which we did. 3 4 5 So it is, as Ms. O'Reilly said, I think difficult to make it from a station to a well. We had a lot of stations. So I just want to make it clear for the record that in 6 terms of our position of the summary judgment motion that was, 7 in our view, adequate. 8 Honor asked. 9 10 11 THE COURT: We are, of course, going to do as your Well and review this transcript and think about it. Can I get a little insight into that reference about 12 Crescenta Valley. 13 Daubert -- 14 Was that after the remand? MR. JOHN ANDERSON: Yes. There was a We had written motions. The 15 Daubert motion against Dr. Wheatcraft was one of them. 16 following the hearing on that written Daubert motion -- it was 17 actually a motion in limine -- the Court ordered that we would 18 have a full day of testimony by Dr. Wheatcraft and by 19 Dr. Wilson who is -- was the defendant's expert in that case. 20 And we had a full day of testimony, most of which was 21 Dr. Wheatcraft. 22 cross-examined by me and Mr. Meadows. 23 conclusion, the Court granted the Daubert motion and excluded 24 Dr. Wheatcraft from testifying in that case. 25 settled before it went to trial but he was excluded by court He was put on by Mr. Miller. And He was And months later, at the Now, it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 Ea69mtbc 1 order. 2 3 Telephone Conference THE COURT: was. Well I wondered what the end of the story What judge was that? 4 MS. O'REILLY: 5 MR. JOHN ANDERSON: 6 Judge Tucker has since changed her last name, went 7 Judge Tucker. back to her maiden name. Yes. Judge Tucker. That's why I was drawing a blank. 8 THE COURT: What is her name now? 9 UNIDENTIFIED SPEAKER: Staton. 10 THE COURT: Now I know who that is. 11 So she ruled it out. 12 was never reviewed on a higher level. 13 about it. Then the case settled. So it And that's what we know 14 Right. 15 Did he do a similar analysis to this in the Crescenta 16 17 That's what we know about it. Okay. Valley case, Mr. Axline or Ms. O'Reilly, I guess? MS. O'REILLY: It was a different issue, your Honor, 18 because there we were focused on a smaller number of stations 19 and directly on production models. 20 MR. CORREL: There in that case he did exactly what he 21 said he could have done in this case. 22 He traced it by station to various wells. 23 MS. O'REILLY: It was a different -- 24 THE COURT: 25 When was her decision, roughly? No. I understand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 Ea69mtbc 1 2 3 4 Telephone Conference MR. JOHN ANDERSON: It was about two years ago. I don't remember the exact date. THE COURT: I guess one of you could forward it to my clerk, right? 5 MR. JOHN ANDERSON: 6 THE COURT: 7 Okay. Okay. That would be our pleasure. Why don't you do that. In any event, as I said, I think I've gotten 8 what I can from this phonecall. 9 you that there will be a record. 10 Thank you. 11 MR. PARKER: So I thank you all and remind 12 Your Honor, is the plaintiff to submit an affidavit of their expert? 13 THE COURT: 14 MR. PARKER: 15 THE COURT: 16 Okay. 17 Yes. (Adjourned) Okay. When the defendants get that -- We'll see. Thank you. Let's see what we get. Bye-bye. 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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