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, [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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IN re MTBE (ORANGE COUNTY WATER DISTRICT)

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04 CV 4968(SAS)
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New York, N.Y.
October 6, 2014
2:37 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 (Via Telephone)
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MIKE AXLINE
DUANE MILLER
TRACEY O'REILLY
Attorneys for Plaintiff Orange County Water District

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LISA GERSON
Liaison Counsel & Exxon Mobil Corporation for Defendant
JEFF PARKER
WHITNEY ROY
Attorneys for Defendant Exxon Mobil
JOHN ANDERSON
Attorney for Defendant ConocoPhillips

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JEREMIAH ANDERSON
CHARLES CORREL
Attorneys for Defendant Chevron

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KEN EHRLICH
Attorney for Defendant G&M
JOHN DICHELLO
Attorney for Defendant Lyondell

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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APPEARANCES (Via Telephone)

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DIANA MARTIN
Attorney for Defendant Tesoro

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STEPHANIE WEIRICH
Attorney for Defendant BP
SAMANTHA CASE
Attorney for Defendant USA Gasoline

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PETER CONDRON
Attorney for Defendant Shell
WILLIE EPPS
Attorney for Defendant Valero

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In chambers)

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THE COURT:

Good afternoon.

I'm just going to call

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the roll.

I have a court reporter here.

Many of you have been

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on conference calls with me you know it's very important you

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state your name every single time before you speak.

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just say "here."

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(Roll called)

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Is there anybody who I didn't call on?

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Okay.

Right now

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Silence means there's nobody I didn't call on.

So I know this is somewhat inefficient to try to have

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an oral argument on a telephone conference which is so

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difficult because of the difficulty of reporting it.

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telephone, as you know, when you're speaking it cancels my

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voice so it's very hard for me to interrupt with a question.

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So I ask you to speak slowly and pause a lot.

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The

I should have I guess had this oral argument when you

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were all here last week.

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up to speed yet on the briefs.

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I realized an oral argument would be useful.

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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

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No. 60 at page three.

The issue is whether each release site

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identified as part of a focus plume contributed to

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contamination of the wells associated with that plume.

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provides no proof that a particular release site contributed to

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such contamination and OCWD will not drop the release site from
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

If OCWD

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the focus plume, then defendants may file a motion for summary

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judgment.

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That was CMO No. 60

So the question is:

Has Dr. Wheatcraft's model met

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that test of proof that a particular release site contributed

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to such contamination?

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And that's a problem, given what he said.

He says in

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his declaration that he has not, "Done any models in which we

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isolated a particular source and ran only that source."

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He does say, however, that he used MTBE release data

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from each individual defendant in creating his model -- I don't

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quite know how he did that but he says he did that -- and that

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that data about each individual station helped him create the

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model.

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any models in which we isolate a particular source and ran only

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that source."

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But then he, of course, goes on to say, "We've not done

So the problem is his model seems to potentially

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connect a group of defendants' MTBE releases to a production

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well but it doesn't seem to show that any particular station's

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MTBE release caused OCW's injury.

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Look, everything turns on my answering this question

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because if Wheatcraft fails to make that connection there's a

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whole lot of motions I don't need to reach.

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out based on that failure.

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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.
[phone]

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So Mr. Axline, Mr. Miller, or Ms. O'Reilly, which of

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the three of you would like to sort of defend what Wheatcraft

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does and whether he meets the standard that I set forth about a

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particular release site; that is, a station having contributed

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to the threatened or actual contamination.

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Who wants to start?

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MR. AXLINE:

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THE COURT:

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MR. AXLINE:

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I will

give it a go.

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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

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question.

I assume that I'm on the right track in saying that

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it's either Wheatcraft or nothing?

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anything else for that, are you, to answer the question?

You're not going to rely on

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MR. AXLINE:

With respect to CMO 60, no.

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However, we did submit additional causation evidence

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in the form of Mr. Herndon's declaration stating that each

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station that was within the capture zone of a well or group of

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wells will contribute MTBE to those wells.

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So, with respect to CMO 60 we're relying on

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Mr. Wheatcraft.

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of the type that's involved in the City of New York case we

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also have the declaration of Roy Herndon.

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But with respect to causation more generally

THE COURT:

I think the case that is most analogous

SOUTHERN DISTRICT REPORTERS, P.C.
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now is Fresno.

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dismissed?

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Is this the same as Fresno and should be

Now I realize the difference is you've got yourself a

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fate and transport expert, which is Wheatcraft, but then the

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answer is all Wheatcraft.

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Okay.

Let's get started.

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MR. AXLINE:

So Mr. Wheatcraft's task was to identify

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whether the stations that we had identified contributed to a

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plume.

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THE COURT:

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MR. AXLINE:

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Right.
And then whether that plume contaminated

wells.

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We base our understanding not -- just on CMO 60 itself

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but also on the runup to CMO 60 which involved a fair amount of

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back and forth between the defendants and the plaintiffs as to

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how to frame the case.

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The defendants started off complaining that we had too

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many plumes and stations and that the case was unmanageable for

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that reason.

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an individual station contaminated an individual well we were

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also going to have other stations that contaminated the same

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well and that we've only identified one station and one well,

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the defendants were then going to start pointing fingers at

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each other saying well that contamination came from station X,

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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.
[phone]

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So, to solve that problem, in part, we shifted to the

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idea of plumes where we were going to identify the plumes that

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would include the stations that we thought were culpable for

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the contamination in a well, which we did.

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We then asked Mr. Wheatcraft to look at whether the

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releases at each individual station that was associated with an

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plume contributed MTBE to that plume.

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at all of the results from each station, modeled where that

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MTBE was going, and concluded that each station did, in fact,

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He looked

contribute to the identified plumes.
Now, once it gets to a plume it's sort of like a

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passenger getting on a train.

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on the train.

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And he did.

At the station the passenger is

The next stop is the well.

And this is uncontested in terms of the evidence

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because the defendants submitted no expert testimony or

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declarations in support of their motion.

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Once the MTBE is on the train, so to speak, it's got

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to plume.

Then there's nothing that stands between that

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passenger getting on at the plume station and getting off at

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the well station, which is where Mr. Wheatcraft concluded the

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plumes would have an impact.

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So that is all --

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THE COURT:

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So let me just ask the question.

So I

understand.
So are there 31 stations in play here.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Basically are

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you saying Wheatcraft's testimony is that each of these 31

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contributed to the plume in its area and that plume is going to

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contaminate the production well.

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MR. AXLINE:

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THE COURT:

So he doesn't --

Yes.
So he doesn't have to say station A

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contributed X amount or X quality but just I know that station

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A is part of plume A, something like that?

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MR. AXLINE:

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THE COURT:

Yes.
Well then why did he say he's not done any

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models in which we isolated a particular source and ran only

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that source?

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What does that statement mean?

MR. AXLINE:

Well, what the defendants are saying is

that he --

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THE COURT:

Wait.

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Wait.

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Wait.

want to know what that statement means to you.

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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

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done any models in which we isolated a particular source and

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ran only that source.

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So I'm just asking you:

What does that mean?

Your

witness said it.
MR. AXLINE:

That means I think pretty

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straightforwardly that he didn't break out individual stations

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and trace only that station to only individual wells.

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THE COURT:

I'm still a little confused.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

You're

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saying he does affirmatively know that station A contributed to

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plume A?

But what doesn't he know?

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MR. AXLINE:

Yes.

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THE COURT:

Then what doesn't he know about station A?

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MR. AXLINE:

Well, he didn't determine, for example,

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how much of the contamination from station A it will be.

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might have been able to determine that if it had been his

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responsibility to do so.

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what he didn't do.

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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

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models in which we isolated a particular source and ran only

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that source, you think that that's all that that means; that we

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can't say that the plume that eventually hits the well is five

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percent made up from station A.

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MR. AXLINE:

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THE COURT:

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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?

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MR. AXLINE:

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THE COURT:

Yes.
But you think he affirmatively does

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testify either at deposition or declaration or expert report

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that station A's release is part of the plume that's going to

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hit production well B?

It has hit or will hit?

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MR. AXLINE:

Absolutely.

Yes.

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In appendix A he identifies the stations that are
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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associated with each plume.

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THE COURT:

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associated with each plume?

He identifies the station that's

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MR. AXLINE:

Yes.

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And then in his declaration at paragraph 8, carrying

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over -- starts on page 1 and carries on to page 2 -- he

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indicates which plumes are hitting which wells.

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THE COURT:

Okay.

So that was my question to you,

Mr. Axline and that was helpful.

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Which defense counsel would lake to take the lead in

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saying why that isn't sufficient to meet the requirements of

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CMO 60.

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MR. PARKER:

Thank you, your Honor.

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This is Jeff Parker.

I will take the lead, although

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you are obviously aware there are a lot of defendants involved

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in this motion so it's possible someone else may add something.

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THE COURT:

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MR. PARKER:

Okay.
Directly addressing your Honor's issue.

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This goes back to the March '07 conference when Mr. Miller

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defined a plume and he defined it to be gasoline that

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commingles at the well.

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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.
[phone]

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THE COURT:

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the plume that hits the well.

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that release site a part of the problem, so to speak.

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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

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issue.

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site is part of the plume that hits the well, that sounds like

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liability.

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percentage of liability and, therefore, you can't calculate

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damages.

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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.

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MR. PARKER:

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And the next step in looking at this is the Court

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actually set that bar at the March 4, 2010 conference when

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Mr. Axline attended and said exactly, and this is Exhibit 79 in

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our papers, attached to Ms. Roy's declaration, said exactly

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what the plaintiff had to do.

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going to produce at some point a report that says these are the

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sources impacting this particular site.

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said:

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station to the well.

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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

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station A is contributing material to plume -- let's call it

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plume B and plume B is hitting production well C.

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direct link between A and C that way.

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MR. PARKER:

That's what Mr. Axline said.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So there's a

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THE COURT:

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MR. PARKER:

Right.
That's actually not what Dr. Wheatcraft

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said.

And I think it's important -- for instance plume 1, as

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they've -- Mr. Axline just identified.

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stations.

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THE COURT:

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MR. PARKER:

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THE COURT:

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MR. PARKER:

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It lists numerous

Right.
That it attributes.
Right.
Well on the map, if you were to draw a

wide V, bigger than 90 degrees.

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THE COURT:

Right.

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MR. PARKER:

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The well MBTAMB is straight down at the point of that

The well -- pointing straight down.

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V.

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station is 6,000 feet to the northwest.

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that are never going to hit unless you actually bring them to

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the well.

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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

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contributed to the plume.

And the plume hits the well -- I

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mean what I can't do, obviously, Mr. Parker, is try the case on

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a motion.

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judgment motions.

I have to always repeat that for all summary
That's the one thing I can't do.

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So if there is an expert who is not later stricken on

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your Daubert analysis, which will be a different motion -- but

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if there is an expert who says:

I realize that A is to the

SOUTHERN DISTRICT REPORTERS, P.C.
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northeast and B is to the northwest and one is 4,000 feet and

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one is 6,000 feet, but their material comes together in the

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same plume and will hit the well.

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not for me to quarrel with him unless he's stricken by Daubert

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before the trial.

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If that's what he says it's

But at this point, summary judgment, if that's the

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evidence of record, then it seems to me they've solved the

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causation problem with acceptable proof.

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MR. PARKER:

Your Honor, I understand that.

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The reason I was pointing to plume 1 as an example is

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because those two points, the direct line from those two wells

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never meet unless he actually tracks from the station into the

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well.

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THE COURT:

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MR. PARKER:

No.

No.

Why not into the plume?

Because the plumes are coming different

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directions.

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towards a well -- they're coming from opposite sides.

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only way to meet is actually to meet in the well.

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says that.

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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

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can't release material that finds its way into the plume, even

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if the plume, so-called, is the last three feet -- I mean

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that's a silly example -- but the last three feet before the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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well, as long as he says in his expert opinion -- you can

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challenge it when the time comes, either a Daubert or a

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trial -- that that material from those totally different

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geographic sources came together at the plume and then the

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plume hits the production well.

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So it's true he can't go from the station to the well.

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But he goes from the station to the plume and then insists that

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the plume hits the well.

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MR. PARKER:

But, your Honor, the premise of their

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plume concept, going back to what they said in court, was the

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typical -- they said typical of California and your Honor noted

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also typical of New York.

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each and a well a long ways away, so they all get together near

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the stations and then move towards the well.

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THE COURT:

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MR. PARKER:

The four corners with a station on

Right.
My point of this, and of his entire

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exercise, what Dr. Wheatcraft did, is that's not what he has

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done.

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of the well.

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They have taken wells on -- stations on opposite sides

THE COURT:

I heard that.

But the whole point of fate

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and transport is he's going to, I guess, give expert testimony

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that because of the way the material moves through the

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groundwater, whatever, it got at some point to the same plume.

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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.
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be credible or whether it will even survive Daubert.

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But if that's what he says now, you know the summary

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judgment standard.

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the inference in favor of the nonmoving party.

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strike you as impossible, and that would be for Daubert.

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need to decide summary judgment.

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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

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saying.

I thought that was what he's saying and maybe

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Mr. Axline has to jump back in.

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Mr. Axline, do I correctly describe what he's saying?

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MR. AXLINE:

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THE COURT:

Yes, your Honor.
I do.

He says from the completely

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different geographic sources somehow the material comes

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together in the same plume.

Mr. Axline.

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MR. AXLINE:

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I thought you were asking if you were correctly

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I'm sorry.

representing what Mr. Wheatcraft said.

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THE COURT:

Yes, I am.

I am asking that.

Is that

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what he's saying, that these two very different geographic

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location stations that Mr. Parker is talking about, somehow the

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material from both somehow gets to the same plume?

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Is that what he's saying?

Is that what Wheatcraft is

saying?

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MR. AXLINE:

Yes.

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MR. PARKER:

Exhibit 79 is where -- the deposition

SOUTHERN DISTRICT REPORTERS, P.C.
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excerpts from Dr. Wheatcraft.

And the plaintiff's

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characterization in their papers is different than his

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testimony under oath and, frankly, different than his

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declaration which says -- he didn't isolate each station.

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the way the model works is they're not mixed at a long distance

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like in a tank, for instance.

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THE COURT:

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MR. PARKER:

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THE COURT:

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MR. PARKER:

And

No.
He said they're from different spots.
Yes.
The way the modeling experts do this is

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they can isolate each station and show that a station, actually

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its contamination got there.

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THE COURT:

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MR. PARKER:

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THE COURT:

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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

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mean -- I don't know how many times I should say it.

He may be

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wrong.

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Daubert.

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from the two very distinct stations that are geographically

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separated got to the same plume, joined together, created one

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plume and that plume got to the well.

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MR. JOHN ANDERSON:

It may not even be a possible theory that can survive
But what he is saying is that somehow the material

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THE COURT:

Your Honor, this is John Anderson.

If I may just add one point?

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That's his theory.

Right.

SOUTHERN DISTRICT REPORTERS, P.C.
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MR. JOHN ANDERSON:

That points is -- I'm the one who

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took Dr. Wheatcraft's deposition.

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lot of detail.

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I've been through this in a

What Dr. Wheatcraft did not say in his attempt to

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salvage what he did in trying to defeat this motion is he does

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not say that the entire plume or any defined amount of the

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plume will ever get to the well.

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the plume and the plume contaminates the well.

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THE COURT:

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All he says is it goes into

Right.

MR. JOHN ANDERSON:

And if you juxtapose that against

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his testimony under oath in the deposition.

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he acknowledged that he did not establish that any MTBE from

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any station itself got to the well.

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assessing the issue is simply said that some part of the plume

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will get to the well.

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contributed by the individual --

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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.

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I mean that takes me back to the commingled product theory.

I

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don't think you can disentangle material that's combined in a

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plume and say okay I know that these following -- that releases

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at six stations got together to form a plume but then I can't

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tell you which station's material is the part of the plume that

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hit the well.

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a tank.

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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.
[phone]

And to

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say -- wait.

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into somebody's well or car or something you wouldn't know

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whose molecules were in that gallon and that's what I said

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years ago.

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I said then and I still believe that.

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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

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commingled in one plume, I don't think anybody can say when it

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hit the well.

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not B through E.

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Oh, that must have been only from station A but
That's impossible.

So that's at least my image.

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sophisticated person.

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It's all mixed up.
I'm not a scientifically

in the plume."

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But that's my image of "coming together

MR. JOHN ANDERSON:

This is a

geographic area that covers many, many square miles.

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THE COURT:

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MR. JOHN ANDERSON:

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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

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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
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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

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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.
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And

And they

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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

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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
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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.
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It may not

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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.

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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.

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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
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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

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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
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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.
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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.
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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
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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

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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
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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

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have a full day of testimony by Dr. Wheatcraft and by

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Dr. Wilson who is -- was the defendant's expert in that case.

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And we had a full day of testimony, most of which was

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Dr. Wheatcraft.

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cross-examined by me and Mr. Meadows.

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conclusion, the Court granted the Daubert motion and excluded

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Dr. Wheatcraft from testifying in that case.

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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

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order.

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Telephone Conference

THE COURT:
was.

Well I wondered what the end of the story

What judge was that?

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MS. O'REILLY:

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MR. JOHN ANDERSON:

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Judge Tucker has since changed her last name, went

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Judge Tucker.

back to her maiden name.

Yes.

Judge Tucker.

That's why I was drawing a blank.

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THE COURT:

What is her name now?

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UNIDENTIFIED SPEAKER:

Staton.

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THE COURT:

Now I know who that is.

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So she ruled it out.

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was never reviewed on a higher level.

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about it.

Then the case settled.

So it

And that's what we know

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Right.

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Did he do a similar analysis to this in the Crescenta

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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,

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because there we were focused on a smaller number of stations

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and directly on production models.

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MR. CORREL:

There in that case he did exactly what he

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said he could have done in this case.

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He traced it by station

to various wells.

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MS. O'REILLY:

It was a different --

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THE COURT:

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When was her decision, roughly?

No.

I understand.

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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?

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MR. JOHN ANDERSON:

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THE COURT:

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Okay.

Okay.

That would be our pleasure.
Why don't you do that.

In any event, as I said, I think I've gotten

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what I can from this phonecall.

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you that there will be a record.

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Thank you.

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MR. PARKER:

So I thank you all and remind

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Your Honor, is the plaintiff to submit an

affidavit of their expert?

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THE COURT:

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MR. PARKER:

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THE COURT:

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Okay.

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Yes.

(Adjourned)

Okay.

When the defendants get that --

We'll see.

Thank you.

Let's see what we get.

Bye-bye.

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SOUTHERN DISTRICT REPORTERS, P.C.
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