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

Filing 4335

TRANSCRIPT of Proceedings re: Conference held on 5/1/2007 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Steven Griffing, [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
------------------------------x

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IN RE: METHYL TERTIARY BUTYL
ETHER ("MTBE") PRODUCTS
LIABILITY LITIGATION

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------------------------------x

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MDL 1358
Master File C.A.
No. 1:00-1898(SAS)

May 1, 2007
12:15 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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PETER HOFFMAN
Attorney for Basso Plaintiff Quatrochi
MILLER AXLINE & SAWYER
Attorneys for Basso and Tonneson Plaintiffs
BY: DUANE MILLER
TRACI O'REILLY

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McDERMOTT, WILL & EMERY
Attorneys for Defendants Exxon Mobil Corp.
and defendants' liaison counsel
BY: STEVEN J. RICCARDULLI
JENNIFER KALNINS

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BEVERIDGE & DIAMOND, P.C.
Attorneys for Defendant Sunoco, Inc. (R&M)
BY: DANIEL KRAININ
JOHN PAUL
MAURY HELLER
Attorney for Third-party Defendant Town of Highlands, NY

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RAPPORT MEYERS WHITBECK SHAW & RODENHAUSEN, LLP
Attorneys for Third-party Defendant Favre Bros. Land, Inc.
and David and Leroy Favre

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In chambers; attorneys on telephone)

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THE COURT:

Good afternoon.

I have a court reporter

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here, so I am going to have to ask you to identifies yourselves

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one at a time for the record.

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MR. HOFFMAN:

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Who is here for the plaintiffs?

My name is Peter Hoffman.

I am here on

behalf of one of the Basso plaintiffs, Quatrochi.

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THE COURT:

We heard a little noise in the middle.

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probably missed your full name.

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last name.

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MR. HOFFMAN:

Wait a minute.

We

Spell your

My name is Peter Hoffman, H-O-F-F-M-A-N,

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and I am the attorney for one of the Basso plaintiffs by the

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name of Quatrochi.

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THE COURT:

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MR. MILLER:

Any other plaintiff attorneys on the call?
Good afternoon, your Honor.

This is

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Duane Miller with Traci O'Reilly on behalf of the Tonneson

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plaintiffs and some Basso plaintiffs.

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THE COURT:
with?

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MR. MILLER:

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THE COURT:

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Mr. Miller, what firm did you say you were

Miller Axline & Sawyer.
Oh, I guess you didn't say that.

You said

something about Tracy & Reilly or something?

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MR. MILLER:

Traci O'Reilly is with me.

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THE COURT:

Oh, that's what confused me.

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firm Miller Axline.

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Any other plaintiffs attorney?

No.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

The usual

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OK.

Who is on the call for the defense?

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MR. KRAININ:

Your Honor, this is Dan Krainin,

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K-R-A-I-N-I-N, of Beveridge & Diamond for Sunoco.

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in my office is my colleague John Paul.

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THE COURT:

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MR. HELLER:

OK.

And with me

Is there anybody else on the call?

Yes, third-party defendants, your Honor.

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This is Maury, M-A-U-R-Y, Heller, H-E-L-L-E-R, I'm for

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third-party defendant Town of Highlands.

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THE COURT:

Third-party defendant Town of Highlands?

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MR. HELLER:

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THE COURT:

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Anybody else on the call?

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MS. ASNIS:

Yes, Highlands with an S.
Got it.

Town of Highlands.

Yes, your Honor.

Shoshanah Asnis,

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A-S-N-I-S, The law firm of Rapport Meyers for third-party

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defendants Favre Bros. Land, Inc. and the individual Favres.

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THE COURT:

Savers?

S-A-V-E-R-S?

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MS. ASNIS:

F, like Frank, A-V-R-E-S.

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THE COURT:

Favres.

OK.

Now, could you say your

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name, firm name and client one more time now that we've sort of

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got it?

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MS. ASNIS:

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Rapport Meyers.

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Sure.

Shoshanah Asnis.

The firm is

Clients are third-party defendants Favre Bros.

Land, Inc. --

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THE COURT:

OK.

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MS. ASNIS:

-- and David and Leroy Favre.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

OK.

That came across clearly this time.

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Is there anybody else on this call?

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MR. RICCARDULLI:

Yes, your Honor.

This is Stephen

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Riccardulli from McDermott Will & Emery for Exxon Mobil

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Corporation.

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K-A-L-N-I-N-S, with me as well.

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And I have my colleague Jenn Kalnins,

THE COURT:

OK.

I'm hoping it's a no, but is there

anybody else on this call?

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All right.

Good.

We have a very short agenda that I know

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of.

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defendants motion with respect to these mental examinations and

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the potential adjustments to the CMO 23, which I had thought

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were agreed upon but at the conference I heard they were not

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agreed upon.

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potential adjustments to CMO 23.

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It's got two items and only two items.

One is the Sunoco

So, could we start with the second one, the

MR. HOFFMAN:

Your Honor, if I might.

My name is

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Peter Hoffman, and I represent the Quatrochis, one of the Basso

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plaintiffs.

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in the original stipulation, and we had a problem getting our

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appraiser onto the property consistently.

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and he's been on the property.

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defense counsel and third-party defendant Town of Highlands

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counsel, and we have all agreed to extend the time for the

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report for the Quatrochis to be served on or before the 24th of

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May.

Basically I had agreed to the time lines that were

We finally got a key

And we have discussed this

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

Excuse me.

Hold on.

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me the proposed order.

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I have in front of

agreement, if we could just follow that.

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I could just mark it up to the new

So, paragraph 1 in the proposed order that was

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submitted to me said:

1.

Expert discovery:

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expert reports proffered by plaintiff shall be served on

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defendants by.

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And the date there was April 27.

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Any outstanding

Are you proposing a different date?

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MR. HOFFMAN:

Well, that would depend on my

adversaries, in the context of there were other things -THE COURT:

Well, April 27 is gone.

Is that date

still the date for that first sentence?
MR. KRAININ:

Your Honor, if I may clarify.

This is

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Dan Krainin for Sunoco.

The Miller Axline firm represents the

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Tonneson plaintiffs and several of the Basso plaintiffs, and

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they served supplemental expert reports on April 27th and met

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that deadline.

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plaintiff's report for the Quatrochi family, which is

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Mr. Hoffman's client.

So, at this point we are talking about just one

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THE COURT:

And they want to get it in by when?

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MR. HOFFMAN:

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THE COURT:

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MR. HOFFMAN:

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THE COURT:

We have agreed to the 24th.

The 24th of May?
Yes, your Honor.

That will push everything off by a month.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. KRAININ:

Only with respect to the Quatrochi

reports.

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THE COURT:

Well, that's the case though.

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case gets pushed off.

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May 24, let's see what it does to the rest of the schedule.

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OK.

I mean the

Before I fill in that date then,

So, then the next sentence in the proposed order says,

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"Any expert reports proffered by defendants shall be served on

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plaintiffs by May 28."

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MR. KRAININ:

What would that change to?
That would stay the same, with the

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exception of a rebuttal report by defendants relating to the

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Quatrochi report, which I agreed with Mr. Hoffman would be due

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on June 22nd by defendant, again with respect to the Quatrochi

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report.

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THE COURT:

I know, but it's one case.

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month.

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reports proffered by third-party defendants shall be served by

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June 29th."

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OK, June 22.

There goes a

Then the next sentence says, "Any expert

Can that stay the same?

MR. KRAININ:

It's unclear whether the third-party

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defendants will wish to respond to the separate Quatrochi

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report.

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under this proposal.

If they do, they would get 30 days or until July 20th

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THE COURT:

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MR. HELLER:

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THE COURT:

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Well, they're on the phone.
Your Honor, we do agree with that.
Wait, I'm sorry, I'm sorry.

We couldn't

take that down at all because you didn't say your name firm.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. HELLER:

This s Maury Heller for the

Town of Highlands.

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I'm sorry.

THE COURT:

All right.

Then now say what you said

again, because we didn't hear you.

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MR. HELLER:

At this point we don't know whether that

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time will be necessary, but in the event that it is, we need to

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reserve that period in the event we have to reply to the

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response to the Quatrochi report.

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that provision would be there.

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THE COURT:

That's the only reason why

Well, then the fourth sentence, it seems

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to me the date could hold no matter what, and that says, "Any

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expert deposition shall be completed by September 28th.

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MR. KRAININ:

We would agree on behalf of Sunoco, your

Honor.
THE COURT:

I don't see any reason for that date to

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change just because of the Quatrochi report and all the dates

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that it's causing, trouble it's causing.

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change the end date for expert depositions, so I think the

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September 28th can stand.

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All right.

It still shouldn't

The second paragraph in this proposed

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order said, "Any party may file a motion for summary judgment

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or other potentially dispositive motion on or before October

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26th, '07.

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That should stay the same, right?

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MR. KRAININ:

Yes, your Honor.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

And any opposition --

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Who said that yes?

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MR. KRAININ:

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MS. O'REILLY:

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UNIDENTIFIED SPEAKER:

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THE COURT:

Dan Krainin for Sunoco.
And Traci O'Reilly for the plaintiffs.
Objection.

And any opposition papers should be filed

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on or before December 14, and replies January 18.

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remainder stays the same, correct?

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MR. KRAININ:

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MS. O'REILLY:

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THE COURT:

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So, the

Correct.
Yes, your Honor.

All right.

So, we are done with that

agenda item.

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MR. RICCARDULLI:

Your Honor, this is Stephen

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Riccardulli.

I just want to raise one point for clarification.

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Mr. Hoffman has indicated that he only represents the Quatrochi

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plaintiffs in the Basso case at this point.

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THE COURT:

Right.

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MR. RICCARDULLI:

Mr. Hoffman filed that case on

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behalf of all Basso plaintiffs, and we understand that

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Mr. Miller is going to substitute in for all of the Basso

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plaintiffs except for the Quatrochis.

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THE COURT:

OK.

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MR. RICCARDULLI:

But that has not been formally done

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yet.

I don't think there is any objection, but the

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substitution of counsel has not been effected before the court
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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at this point.

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THE COURT:

OK.

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MR. MILLER:

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So, we are done with the proposed order.

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else want to add anything about the order to amend dates?

We will, your Honor.

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MR. KRAININ:

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THE COURT:

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MR. KRAININ:

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THE COURT:

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So just take care of it, Mr. Miller.

Does anybody

No, your Honor.

Who is this?
Two things.

Stop.

MR. KRAININ:

Who is speaking?

I apologize.

Dan Krainin for Sunoco.

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simply wanted to note that we had contemplated -- or at least

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Sunoco has -- that any Daubert motions would be filed

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consistent with the schedule for dispositive motions.

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THE COURT:

Yes, I guess that's right, because the

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depositions don't conclude until September 28, so I guess you

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couldn't do the Dauberts until October 26.

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But I will say -- I said it in the main conference,

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and I don't know if you stayed -- don't use that reflexively.

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Be pretty sure that you have a chance of winning a Daubert

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motion; don't just make it for the sake of making motion

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trouble.

Also if you can make it earlier, do.

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MR. KRAININ:

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THE COURT:

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Understood, your Honor.

There is no reason to wait until then.

So, please take both points to heart.
Now, with respect to the second item on this short
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

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agenda, I had read the letters in preparation for the big

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conference, and then I guess one of the plaintiff's counsels

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weren't there so I didn't proceed, and I thought the suggestion

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that I don't even need to decide the examination issue until

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after the question of whether the emotional damage claim is

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going to be dismissed is decided.

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to reach the issue.

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whichever side said it, I agree with that.

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are going to do.

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It seems to me it's a waste

I forgot which side proposed that, but
So, that's what we

Isn't it true that defense is moving to dismiss those
claims?
MR. KRAININ:

Yes, your Honor.

This is Dan Krainin on

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behalf of Sunoco, and we had submitted that letter and made

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that suggestion, and we would agree that --

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THE COURT:

I would like to hear why the plaintiffs

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find that problematic.

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going to be gone, there clearly won't be any exams; and if the

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claims stay, then I will decide.

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but there is just no point in doing it until after we see if

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the claims are going to stand.

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MR. MILLER:

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What's the difference?

If the claim is

It's a pretty motion anyway,

Your Honor, this is Duane Miller.

I have

no problem with that suggestion.
THE COURT:

OK, good.

So, when is that motion to

dismiss the emotional damage claim coming?
MR. KRAININ:

Your Honor, that motion depends in part

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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on the expert discovery that's ongoing.

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part on the expert testimony of their toxicologist, Dr. Melman,

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to support those claims, so we need rebuttal reports and his

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deposition, but shortly thereafter we can bring on that motion.

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THE COURT:

Plaintiffs rely in

So, you don't expect that motion until

next October?

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MR. KRAININ:

I believe we can file it before then,

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but we haven't yet scheduled Dr. Melman's deposition or served

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a rebuttal report, so there is still some work to be done in

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the interim.

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MR. MILLER:

Your Honor, this is Duane Miller.

I am

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concerned about postponing mental exams to that late in the

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schedule.

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It would extend the entire schedule.

THE COURT:

Right.

But I think -- first of all, from

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what I read in the letters, I have to tell you my inclination

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is there won't be any, but I don't want to be premature in that

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ruling.

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should drag around until October.

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and schedule it now.

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report in already, right?

But more importantly, I don't see why that motion

In other words, this Dr. Melman has a

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MR. KRAININ:

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THE COURT:

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Maybe we can tighten it up

That's correct.

And there is not going to be a separate

report from Mr. Hoffman on that issue, right?

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MR. HOFFMAN:

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THE COURT:

No.

No.

So, you are essentially ready to go

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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to take Melman's deposition.

This is only May, so schedule it.

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Can you take him in May?

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MR. KRAININ:

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THE COURT:

Your Honor ---

Who is this?

We're not taking you down.

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Whoever you are, we are not taking you down if you do not say

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your name.

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MR. KRAININ:

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THE COURT:

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MR. KRAININ:

I apologize.

Dan Krainin for Sunoco.

Say it again.
The rebuttal report to Dr. Melman's

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expert report is due May 28.

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THE COURT:

Well, move that up.

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When was the Melman report in?

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MR. KRAININ:

That's to me absurd.

It was in about a month or so -- I don't

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recall the date, your Honor.

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deposition for beginning of June and file the motion by the end

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of June if that's OK with the court.

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THE COURT:

I would be happy to schedule a

Well, I think it's later than need be.

I

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think the rebuttal report could be in no later than May 21st,

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and I think the deposition could be concluded of Melman by the

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end of May.

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why don't you try for my schedule, what I just said.

And we could have this motion made by June 15.

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MR. KRAININ:

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THE COURT:

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MR. MILLER:

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So

OK, your Honor.

OK.
Your Honor, this is Duane Miller.

I have

a recollection that Dr. Melman has a vacation outside the
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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country.

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suggested, but I'm just not sure.

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We may be able to accommodate the dates that you

THE COURT:

Well, all right, a little flexibility.

I

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won't put it in the order, but that's the rough dates I would

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like to see so we can get moving.

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I think that's a limited motion compared to some of

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the big things we have been dealing with lately.

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to get it, read it, decide it and move on, so you know whether

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the claim is in or out; and if it's in, then I have to reach

I would like

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the examination issue, which is only letter briefed.

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need to see.

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In any event, that's the rough schedule.

So, we

I think that

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their rebuttal report could be in by May 21.

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Melman's schedule.

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thereafter, and hopefully they will make the motion by June 15.

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The earliest possible deposition

All right.

I think that covers the limited agenda

that we had in this case.

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MR. MILLER:

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THE COURT:

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this conference?

You check

Is that right?

Yes, your Honor.
Did anybody else have any other item for

No?

OK.

Thank you.
- - -

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]