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

Filing 4332

TRANSCRIPT of Proceedings re: Conference held on 3/30/2007 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Joseph Quinones, [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 1/8/2016. Redacted Transcript Deadline set for 1/18/2016. Release of Transcript Restriction set for 3/17/2016.(Siwik, Christine)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:

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MTBE, et al.,

00 MDL 1898

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March 30, 2007
11 a.m.

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Before:
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HON. SHIRA A. SCHEINDLIN,
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District Judge
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APPEARANCES
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MARY KOCH, ESQ.
KARYN BERGMAN, ESQ.
JAMES COX, ESQ.
Attorneys for Plaintiff Larrabee
ANDREW GENDRON, ESQ.
PETER SACRIPANTI, ESQ.
Attorneys for Defendant Exxon Mobil Corp.

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(TELEPHONE CONFERENCE)

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(Case called)

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THE COURT:

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identify yourselves?

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I have a court reporter here so can you

MS. KOCH:

Mary Koch, along with James Cox and Karyn

Bergman.

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THE COURT:

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MS. KOCH:

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MR. SACRIPANTI:

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And you all represent the plaintiff?
Plaintiff, yes.
Peter Sacripanti representing

Exxon-Mobil Corporation, along with my colleague from Venable
Andrew Gendron.

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MR. GENDRON:

Good morning, your Honor.

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THE COURT:

Good morning, Mr. Gendron.

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THE COURT:

You said along with my colleague --

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MR. SACRIPANTI:

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THE COURT:

From Venable, your Honor.

This I hope is a very brief and simple

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conference call.

There is some dispute going on about a notice

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of voluntary dismissal.

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v. Exxon-Mobil, which is a Maryland case, is that right?

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MS. KOCH:

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THE COURT:

Plaintiffs in a case called Larrabee

That is correct.
You want to dismiss under Rule 41(a)(1)

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and the defendants say you can't do that because the answer has

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already been filed.

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filed because the sort of standard answer of the MDL isn't

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deemed to be an answer in this particular case.

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Plaintiff says, no, an answer hasn't been

Is that a fair summary of the dispute going on?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MS. KOCH:

Yes, your Honor, from the plaintiff's side.

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THE COURT:

So, Mr. Sacripanti, I don't remember the

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history but in Ms. Koch's letter I guess she said I previously

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said that in a similar case, the Alban case, apparently I said

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the standard master answer wasn't an answer in these sort of

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private plaintiff cases as opposed to the water authority cases

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that make up most of the MDL.

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remember.

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MR. GENDRON:

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THE COURT:

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MR. GENDRON:

That is what she said.

I don't

If I may, may I answer that question?

Of course.
The difference between the Alban case

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and the Larrabee case is that in Alban there had been in

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amendment of the master answer to include the Alban cases.

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had taken the position, based upon some earlier exchanges in

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conferences before the Maryland cases had been brought in, that

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the pendency of the master answer sufficed until the cases

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could be sufficiently addressed.

The court rejected that

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position and we understand that.

However, just as in the Koch

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case, Exxon-Mobil responded to a virtually identical complaint

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in the Larrabee case by amending the master answer to

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specifically refer to it and to include Maryland affirmative

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defenses.

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that the answer that has been pending for a year and a half in

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the Koch case is insufficient, even though plaintiffs have

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never before taken that position, and calls into question our

We

And to suggest that that is not good enough suggests

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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parties' reliance on master answers generally with respect to

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cases brought into the MDL and would seem to suggest that there

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are a great many parties in default throughout the MDL.

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don't think that is what the court intended.

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THE COURT:

I

So assume you are right, Mr. Gendron, for

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the sake of argument, I don't even hear from Ms. Koch for a

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minute -- and assume you are right.

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she wants to dismiss voluntarily anyway.

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Are you opposing that?

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MR. GENDRON:

You have answered and now

The answer is we don't know because we

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asked them why they want to dismiss and they haven't responded

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to us.

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THE COURT:

All right.

Maybe she will tell us.

I

thought it was to go to state court.

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MR. GENDRON:

I haven't heard a thing, your Honor.

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THE COURT:

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Ms. Koch, I think since he might well be right on this

Let's find out.

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answer problem we are going to have to presume it for a little

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while, and tell me so that he can decide whether he wants to

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oppose the voluntary dismissal anyway why you want to dismiss.

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MS. KOCH:

The major reason -- there are actually

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three reasons that we want to dismiss.

One is because we have

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obviously the class action involved in it and we have done some

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work in investigation in this case and this case is very

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different from Falston in one glaring respect, and that is that
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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in Falston there is only one other attorney involved who

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represents a very small number of individuals.

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there is another attorney involved who represents about 84

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individual families and so they have all filed individual

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lawsuits and so we think that that obviously has an impact on

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the ability to have a class certified in Jacksonville.

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think in Jacksonville we would be amending the complaint

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regardless because we want to add numerous other parties to the

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complaint, other defendants; and, thirdly, we just have decided

In Jacksonville

We also

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that in light of those things we would prefer to proceed with

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individual actions which we are prepared to file for about

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approximately 120 families in the Jacksonville area.

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that end we intend to refile in state court individual actions

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on behalf of those names.

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THE COURT:

And so to

The named plaintiffs here, Larrabee and

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Depino and Rieger, they won't be bringing a class action in

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Maryland.

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they be consolidated with the Jacksonville cases?

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you are saying?

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They will be bringing individual actions, and will

MS. KOCH:

Is that what

I don't know if the court will eventually

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consolidate.

We filed a complaint that puts all our plaintiffs

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in one complaint.

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been set in Baltimore County.

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they may be going to trial in May 2008, but that is all I know

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about that in that particular case.

So I don't know that a scheduling order has
I know that there is an idea

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

All right.

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Back to Mr. Gendron, now you know the reason.

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MR. GENDRON:

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Well, the first point is whether they seek class

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certification in this case or not, they have these claims

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pending and there is no reason why they can't amend these cases

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to include additional parties after Exxon-Mobil has gone

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through the time, effort and expense of getting the case

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removed.

Yes, your Honor.

Certainly I am not entirely certain whether

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numerosity is a concern of theirs, if they say they have 120

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individual cases that they intend to file.

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awful lot of people.

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THE COURT:

That sounds like an

Mr. Gendron, I think you lost me.

You are

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trying to say you have some power to make them continue to

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bring a class action when they don't want to?

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MR. GENDRON:

No, your Honor.

Excuse me if I was

unclear.

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THE COURT:

Maybe it's me.

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Go ahead.

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MR. GENDRON:

All I meant was I thought I had heard

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them say that by virtue of the number of parties that Mr.

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Snyder is representing in state court they thought that that

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distinguished the Jacksonville litigation from the Falston

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litigation in which they sought class certification and maybe

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it was an unordered assumption on my part but I thought Ms.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Koch was suggesting that there would be an opt out problem or a

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numerosity problem, and then when I heard her say it sounded

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like they were going to proceed with 120 individual cases

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numerosity didn't seem like an issue to me.

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didn't understand her.

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they seek class certification in this case or not, they have

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pending claims.

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additional parties diversity isn't a basis for removal here so

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that won't defeat the court's jurisdiction.

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Maybe I just

But the fact is regardless of whether

They can amend them.

If they want to bring in

And in response to the court's question about

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consolidation with the pending actions of Baltimore County,

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there is a scheduling order in place.

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would be filed in broader Baltimore County it would be past the

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deadline for joinder of additional parties so there wouldn't be

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consolidation with the May 2008 trial date.

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THE COURT:

By the time these cases

All of which I don't really understand why

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that would lead to your opposing a voluntary dismissal of this

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case in federal court.

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MR. GENDRON:

I am not able to follow that.
Well, your Honor, first of all, let me

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say this is the first we have heard of the plaintiff's reasons

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so we haven't had the opportunity to speak with our client and

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I don't know what your client's position is and I would ask the

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court for the opportunity to do that in any event and get back

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to the court promptly.

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had a right to seek to get this case in the MDL and it did so

But just as a for instance, Exxon-Mobil

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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properly.

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THE COURT:

What is the basis of jurisdiction on this

one?

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MR. GENDRON:

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THE COURT:

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I am sorry?

What is the basis of jurisdiction on this

one?
MR. GENDRON:

It's Section 1503 of the Energy Policy

Act of 2005.
THE COURT:

So this one is staying no matter what the

Second Circuit does.

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MR. GENDRON:

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THE COURT:

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MR. GENDRON:

Yes, your Honor.

Go ahead.

Yes.

Just as plaintiffs have, all things

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being equal, a right to select their forum, defendants may

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properly invoke removal jurisdiction and have a right to do so.

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MS. KOCH:

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THE COURT:

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What you are really saying is that if she re-files you

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May I interrupt -I have a question for Mr. Gendron.

could remove again anyway.
MR. GENDRON:

Is that right?

Depending upon the nature of the

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complaint that may very well be, in which case this would be a

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futile exercise.

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THE COURT:

That is true.

It really depends what you

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allege because under the Energy Policy Act we don't have the

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old jurisdiction problem, the one still under consideration in
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the Second Circuit.

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say.

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tricky thing.

It comes here if it says what it needs to

So it's really a question of which jurisdiction.

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It's a

I think we should go back to basics.

Ms. Koch, do you want to be heard on the answer

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problem?

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specifically amended the answer to address the allegations in

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the Larrabee case it would be a dangerous precedent to say he

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hadn't filed an answer.

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people, a lot of defendants, I mean, not people, but a lot of

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entities' failure to answer so-called, and I can't have that.

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That is the whole point of a master answer.

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said that at the time of Alban prior to the amendment of the

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answers to specifically address some of the issues raised in

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these cases, unless you are pretty convincing I am going to

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assume he answered.

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to his people and see if they do want to oppose the voluntary

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dismissal.

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want to oppose I will yet have another motion on my docket and

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I will decide it.

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Because Mr. Gendron was pretty convincing that if he

That would throw in doubt a lot of

While I may have

Then the question will be he will go back

We could get lucky and they don't, but if they do

MS. KOCH:

They did not specifically address, your

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Honor, the issue in their master answer.

As a matter of fact,

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your Honor, all they did was cite general Maryland law that

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would entitle them to raise certain defenses in the case.

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There was no specific addressing of the various allegations in

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the complaint that was filed by our office.

It's just a

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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general recitation of the affirmative defenses available to

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them under Maryland law.

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THE COURT:

But that may be enough.

Why would he, in

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a master answer that applies to sort of New York cases and

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California cases and whatever cases, address Maryland law at

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all?

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responding.

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cases.

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There was obviously an effort to tailor a master answer.

It seems to me that indicates he was specifically
He was tailoring the master answer to the Maryland

I don't need Maryland cases in New York or California.
You

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say, here are all the master allegations or answers and I add

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Maryland defenses.

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Larrabee case.

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MS. KOCH:

That tells me that it was directed at the

Your Honor, I think that the rules require

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that they have to also address case specific allegations to the

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extent that they exist according to the manual for complex

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litigation, and in your Honor's order in the transcript of the

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status conference on January 13, 2005 and the case management

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order, which embodies the rulings of that status conference,

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you indicated that they have to address them, make specific

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allegations to the extent they exist.

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There are no case-specific allegations in the master

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answer responding to the Larrabee complaint and I know there

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are because I have seen the answer in Alban and it is case

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specific and it's vastly different from the master answer where

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they allege answers for all of their defenses in the Larrabee
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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case.
THE COURT:

Well, I don't have the answer in Larrabee

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in front of me so I am having a hard time sort of being able to

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rule on this on a telephone conference, although I would like

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to because I really think this shouldn't require each side to

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submit briefs and call it a pending motion.

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through if we can't decide whether an answer has been filed.

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We will never get

But I guess you could send over the answer, Mr.

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Gendron, and highlight the portions that you say comply with my

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order and you in turn, Ms. Koch, can send over the portions of

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the order that you are citing because I don't have that in

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front of me.

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what I said in the transcript and I don't know what I said in

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the case management order.

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of those to me.

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I don't know what I said in 2005.

MS. KOCH:

I don't know

So would you have to send over both

We would like to see the answer in the

Alban complaint because that does illustrate it.
THE COURT:

Send over a quick package, maybe Federal

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Express, a drop in the bucket here, and just send over here the

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appropriate pages of the CMO that you say address this, the

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appropriate pages of the transcript that you say address this

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and, if you want to, the Alban answer, and meantime somebody

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send over the Larrabee answer, and in the first instance I have

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to make a decision if that is an answer.

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But Mr. Gendron's point is well taken.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

This could

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throw into disarray a lot of entities who believe they have

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answered a lot of complaints suddenly learning they haven't

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answered.

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efficient when you have a large number of cases with a large

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number of defendants.

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far in terms of number of cases, maybe we have only 100.

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are cases around the country with 5,000, but if you multiply

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100 times the number of defendants that are named we have a lot

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of folks in this MDL.

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The whole point of a master answer is to be

MS. KOCH:

This may be a relatively small MDL so

Can I ask one question?

There

I am curious, if

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this is Exxon's position are they now saying they have now

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waive their right to file a motion to dismiss?

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MR. GENDRON:

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THE COURT:

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That is not her question.

MR. GENDRON:

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THE COURT:

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Her question is

having answered is that your responsive pleading?

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We haven't filed a motion to dismiss.

Yes, your Honor.

So you have waived the right to file a

motion to dismiss.
MR. GENDRON:

For the preliminary motion to dismiss,

absolutely.

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THE COURT:

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(Pause)

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THE COURT:

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MS. KOCH:

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Please hold one second.

I am back, sorry.
Your Honor, I think our position stands as

it is and I am prepared to overnight to the court the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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information that you requested.

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THE COURT:

But you got an answer to your question

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about motion to dismiss.

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answer.

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MS. KOCH:

Yes, his position is he filed an

That is not the position they took in Koch.

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They filed a motion to dismiss in Koch.

Even though they had a

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motion and they certainly didn't indicate that they had waived

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it by filing a master answer in Koch, and I only say that

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because they reference Koch in reference to the way we handle

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the Larrabee case and they went through with their motion to

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dismiss in the Koch case and did not treat it as a master

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answer in that regard -- as a master answer or as the answer in

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that particular case.

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MR. GENDRON:

If your Honor please, we filed the

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amended master answer to defend Koch after the court denied our

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motion to dismiss.

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THE COURT::

Your motion to dismiss preceded filing

any answer?

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MR. GENDRON:

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THE COURT:

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Yes, your Honor.

What about that, Ms. Koch, do you remember

that?
MS. KOCH:

I apologize, your Honor.

I am asking my

colleague.

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THE COURT:

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MS. KOCH:

Okay.
I apologize, that is right.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

I guess that doesn't count.

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MR. GENDRON:

If your Honor please, there is one point

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I would like to add with respect to this notion of the answer

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to the Koch complaint and the Larrabee complaint.

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came up in the Koch case very early on with respect to the

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plaintiff's motion to remand was whether that complaint had

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so-called product liability allegations concerning MTBE and

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plaintiffs claiming it didn't and the court concluding after a

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very careful analysis that yes in fact it did.

A theme that

The complaint

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in Larrabee is but for the site of the spill and the name of

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the parties and as such is virtually identical with respect to

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those substantive allegations.

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MS. KOCH:

Absolutely not.

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MR. GENDRON:

Excuse me, to the extent anyone is

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claiming that the answer to the Koch complaint is somehow the

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answer to it that is okay, but it's not with respect to

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Larrabee.

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That is an inconsistent position.

MS. KOCH:

I have a couple of things to say.

The

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first thing is that Mr. Gendron's recitation of what happened

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is not accurate because the difference in the Koch case is

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plaintiffs had actually in the initial Wagner case filed an

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actual product liability element in the first complaint and

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when we filed the second complaint the court said after the

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first complaint this one sort of smelled of products liability

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also but there was no actual product liability complaint in the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Wagner complaint before it moved to the first complaint that

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plaintiffs have filed.

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products liability at all.

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court anyway.

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another day.

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We have not made an allegation on
And that issue is not before the

That is something that is going to be argued

I think that also what Mr. Gendron has to be cognizant

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of is that the issue we are talking about now is really the

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issue in terms of class certification.

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about three plaintiffs' cases.

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THE COURT:

We are only talking

I don't think anybody is making a Rule 23

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argument but what I do think is that that is the issue that he

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would face.

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dismissal you refile, then he has to evaluate it for removal.

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That is when he has to decide whether he thinks there is a

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product liability claim, right?

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MR. GENDRON:

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If he decides not to oppose the voluntary

A product liability or a claim that

implicated Section 1503, your Honor.
THE COURT:
better approach.

Fair enough.

Maybe that would be the

We will see where the strategy turns.

So I would like you not to burden the court if,

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indeed, your decision is going to be not to oppose the

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voluntary dismissal anyway, but since you may decide the other

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way around I am going to have to look at this answer question.

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So my clerk does point out if you want to e-mail the materials

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to him we would be able to I hope handle the printing out here.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. GENDRON:

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THE COURT:

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MR. GENDRON:

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May I make a suggestion?

Yes.
It might be helpful and avoid burdening

the court.

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THE COURT:

I like that.

Because of the Energy Policy

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Act we are starting to get more new cases so I can see this

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thing growing.

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That is for Mr. Sacripanti's benefit, that last
comment.

The filings are coming.
MR. GENDRON:

If your Honor please, as you pointed

out, it may very well be that my client decides not to oppose.
THE COURT:

Right.

That is what I mean.

That would

be great.
MR. GENDRON:

And if we might have a few days to

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confer with our client and come back to the court it wouldn't

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be necessary for anybody to send anything in to the court for

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anything to be printed out or reviewed or for any more time of

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the court be taken up on this issue.

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THE COURT:

Except maybe there is going to be a

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lurking problem with the answer questions.

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whether Mr. Sacripanti thinks this is sui generis or whether

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this could arise a lot and we need to sort out when an answer

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is an answer.

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I don't know

Do you think we need to face that now or if this one
goes away we can let it ride?
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Mr. Sacripanti, what do you think?

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MR. SACRIPANTI:

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let it ride.

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I think if this one goes away we can

Gendron.

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Although, your Honor, I do agree with Mr.

THE COURT:

I realize you represent the same clients,

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not surprisingly.

If we think we can let it ride in general,

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then Mr. Gendron's suggestion is right.

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Ms. Koch, would there be any problem if we wait until

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Wednesday and wait to see if he opposes a voluntary dismissal?

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MS. KOCH:

I don't want to put any more work on your

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plate certainly, but the problem is it's just more delay.

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are ready to file.

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THE COURT:

I understand that.

We

But we do have to give

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him time to check with his people as to what they want to do.

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What he shouldn't present to them assuming answers and assuming

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we have the right to contest to we want to.

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reasons why they might not want a ruling from the court now.

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He is saying give me a couple of days.

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because I hoped to be out Monday and Tuesday.

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MR. GENDRON:

There is tactical

I suggested Wednesday

I think that should be sufficient time

and I appreciate that.
MS. KOCH:

I would say since Mr. Gendron raised this

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issue himself it would have been nice if counsel would have

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talked to their client.

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MR. GENDRON:

Your Honor, I had initially attempted on

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the day we received a notice of dismissal to call Ms. Koch and

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then when Ms. Koch did not return my call and I spoke to

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Mr. Cox, Mr. Cox referred me to Ms. Bergman to ask Ms. Bergman

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to return my call to discuss this, and I didn't hear from

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anyone.

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in their office to see if there was a response and no response

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was forthcoming.

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not on Exxon-Mobil's part.

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MS. KOCH:

I then reached out through other means to other people

The inability to discuss this regrettably was

Our position doesn't change.

In talking

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about the clients I would explain what the position is

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irrespective, in any event.

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THE COURT:

I will give them until Wednesday to get

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back.

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Prepare your packets to show whether or not the answer is an

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answer.

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Prepare your packets in case he says he wants to oppose.

MR. SACRIPANTI:

You know what, your Honor, with the

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court's permission if we are really saying that these master

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answers are not, in effect, answers --

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THE COURT:

Sometimes.

She is saying it in her case

anyway, let's go that far.
MR. SACRIPANTI:

I hope it's sui generis.

As liaison

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counsel I probably have an obligation to go back to the group

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and say this was raised and is this something we want the court

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to focus on.

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THE COURT:

Right.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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73USMTBE
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MR. SACRIPANTI:

well until next Wednesday.

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THE COURT:

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MR. SACRIPANTI:

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So maybe if you would allow me as

Okay.
To come back and say we would like

this adjudicated.
THE COURT:

Well, that is a little bit of tactics too.

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You have to work with Mr. Gendron and if it's not ripe for this

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case I am not going to do it in the abstract either.

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In any event, should we have a telephone conference on
Wednesday?

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I don't know what my schedule is.

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How about 3:30 for a telephone conference?

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MR. GENDRON:

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THE COURT:

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MS. KOCH:

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THE COURT:

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Hold on.

Wednesday the 4th, your Honor?

Yes.

Is that okay?

One second.

That is fine.

A 3:30 telephone conference.

touch with my clerk as to how to set it up.

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MS. KOCH:

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THE COURT:

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Thank you.

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MR. GENDRON:

We will just set it up again, your Honor.
Let him know what we have to do.

Thank you, your Honor.

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Stay in

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]