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

Filing 4343

TRANSCRIPT of Proceedings re: Conference held on 3/19/2014 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Kristen Carannante, [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: METHYL TERTIARY BUTYL
ETHER ("MTBE") PRODUCTS
LIABILITY LITIGATION

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New York, N.Y.
March 19, 2014
3:30 p.m.

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00 MDL 1358 (SAS)
00 CV 1898 (SAS)

Before:
HON. SHIRA A. SCHEINDLIN
District Judge

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APPEARANCES
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MILLER AXLINE & SAWYER
Attorneys for Plaintiffs
BY: DUANE C. MILLER
MICHAEL AXLINE
WEITZ & LUXENBERG
Attorneys for Plaintiffs
BY: WILLIAM A. WALSH
LAW OFFICES OF JOHN K. DEMA
Attorneys for Plaintiffs
BY: JOHN K. DEMA
McDERMOTT WILL & EMERY LLP
Attorneys for ExxonMobil
BY: LISA GERSON
STEPHEN J. RICCARDULLI

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SHEPPARD MULLIN RICHTER & HAMPTON
Attorneys for ExxonMobil
BY: WILLIAM STACK
WHITNEY JONES ROY
SEPULVADO & MALDONADO, PSC
Attorneys for Total Petroleum Puerto Rico
BY: ALBENIZ COURET-FUENTES
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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APPEARANCES
SEDGWICK LAW
Attorneys for Shell Oil Company
BY: PETER CONDRON
DAVID M. COVEY

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McCONNELL VALDES LLC
Attorneys for Sol Puerto Rico Limited
BY: JUAN A. MARQUES-DIAZ

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STRASBURGER, LLC
Attorneys for Defendant Tauber Oil
BY: MICHAEL A. WALSH

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MANATT, PHELPS & PHILLIPS, LLP
Attorneys for Defendant Tauber Oil
BY: MICHAEL A. WALSH

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LATHAM & WATKINS
Attorneys for Defendant Conoco Phillips
BY: MICHAEL A. WALSH

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ARNOLD & PORTER, LLP
Attorneys for Defendant Atlantic Richfield Co.
BY: MICHAEL A. WALSH

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(Case called; all parties present)

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THE COURT:

We have received a number of letters, A

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huge numbers of attachments things aren't going so well again.

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But the years go by; some years are better years and some

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years, worse years.

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This one is bad.

The March 3 letter, which is the plaintiffs'

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preconference letter had five attachments, some longer than

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others.

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The defendants' preconference letter of March 11 had I

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think 13 attachments, and that really is a lot and kind of

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defeats the purpose of a page limitation.

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about that again.

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We have to talk

The plaintiffs' reply letter is March 14.

It had two

attachments.

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The defendant's reply letter of March 14 has eight.

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So, all around, the defendants are up to 20 different

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attachments.

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that.

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We should have a little chat about how to do

The plaintiffs have three agenda items, and the

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defendants have six agenda items.

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agenda items, the first one is moot.

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Tauber pending motion to dismiss.

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was due and came in.

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nothing to discuss with respect to agenda item one, agreed?

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MR. AXLINE:

Of the plaintiffs' three
That had to do with the

The plaintiffs' opposition

I saw it in today's mail.

Agreed, your Honor.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So there is

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THE COURT:

So that takes us to plaintiffs' agenda

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item two, which is what plaintiffs describe as defendants'

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excessive and duplicative expert designations in the Puerto

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Rico case.

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expert witnesses are in play here?

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include 26(a)(2)(B) and 26(a)(2)(C)?

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groups totaling 75?

I need to understand how many of the alleged 75

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MR. MILLER:

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THE COURT:

Is it really 75, if you
There were two different

Yes, your Honor.
Mr. Miller, yes.

Because the defendants

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come back and talk about having only 35, and I think that's

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maybe Ms. Gerson is the one who is on the line for saying 35.

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Were you limiting it yourself to (a)(2)(B) when you said there

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were only 35.

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MS. GERSON:

We were talking plaintiffs grouped

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together retained experts and 26(a)(2)(C) experts, although

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their letter only appeared to be complaining about (a)(2)(C)

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witnesses.

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THE COURT:

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MS. GERSON:

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THE COURT:

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MS. GERSON:

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It actually breaks down exactly 35 of

each.

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What is the number of each.

Oh, exactly 35 of each.
So focusing on the (a)(2)(C) witnesses, I

think we point out in our letter -THE COURT:
complaint is.

Let me understand what the plaintiffs'

I want to make sure I understood the numbers.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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It is 35 of one kind and 35 of another kind.

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be 70, not -- is that what the complaint was, that there was

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75?

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news.

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Now you are telling me there are 70, which sounds ridiculous

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anyway.

Already we seem to have gone down by five, which is good

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That happens to

Did we reduce it by five?

Because the complaint was 75.

But are there 75 or 70.
MR. MILLER:

I think your Honor is right that it is

THE COURT:

So you are complaining about 70, not 75.

70.

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Small progress, but I assume you think 70 is still way out of

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line.

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is still a problem.

Whether it is the retained kind or the inside kind, it

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MR. MILLER:

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THE COURT:

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MR. MILLER:

It is, your Honor.
And you are complaining about both groups.
Yes.

But we met and conferred, and I

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think that we can make substantial progress in dealing with the

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35 current and former employees testifying as experts through a

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meet-and-confer process.

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solution was because part of what we are concerned with is

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duplication.

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additional depositions.

I told counsel what I thought my

Part of what we are concerned with is taking 35

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THE COURT:

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MR. MILLER:

Right.

No, it's horrible.

And I think that we can probably at a

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minimum cut the number of depositions of the 35 down

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substantially.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

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MR. MILLER:

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THE COURT:

The (a)(2)(C) ones.
That's correct.
But the retained ones, (a)(2)(B) ones, I

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don't know whether we are calling them retained or just

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(a)(2)(B), whichever is clear for the record.

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Give me a minute to have the rule in front of me, because

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either way there has to be a submission.

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complaining about the inadequacy of the submissions, and we

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will get to that in a minute, too.

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And you also are

It will be convenient to

have the rule open.

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MR. MILLER:

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THE COURT:

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One second.

My suggestion, your Honor -Wait, no; no suggestions until I get the

rule open is what I said.

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Okay, so the (a)(2)(C)'s are the ones you think you

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can negotiate about?

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MR. MILLER:

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THE COURT:

Yes.
You realize, of course, that they still

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have to disclose the subject matter in which the witness is

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expected to present evidence under rules of evidence 702(3) and

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(5), and the summary of facts and opinions to which that

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witness will testify.

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I understand it, who happen to be on the payroll.

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being offered also as experts who do not have to provide a

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report.

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MR. MILLER:

So they are not just fact witnesses, as

That's correct.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

They are

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THE COURT:

Then they have to do these other things.

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Have they done these other two things?

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the subject matter and summary and facts upon which they plan

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to testify?

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MR. MILLER:

Have they designated

They have written a paragraph and they

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say things like the witness will cover industry practices,

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without specifying them, which is a pretty broad category, in

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my mind.

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THE COURT:

I can help you out.

I don't find that

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satisfactory.

The whole point of 26(a)(2)(C) was to relax the

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written report requirement but to still require that if they

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are going to give opinions, expert opinions under 702(3) or

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(5), they have to do (ii), which is a summary of the facts and

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opinions to which the witness is expected to testify.

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broad sentence won't do it.

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me and everybody else figure out duplication.

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depositions if that were done right.

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make a separate two- or three-page submission for each of them

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that complies with Rule 26(a)(2)(C).

That

It would save time, it would help
It might avoid

So I think you should

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MS. GERSON:

Your Honor --

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MR. MILLER:

We do not have two or three pages --

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THE COURT:

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MR. MILLER:

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THE COURT:

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I know you don't.
-- on anyone.
I know you don't, and I think you should.

So whether you ask for it or not, Mr. Miller, I want it.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

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want a proper two- or three-page single-spaced summary for each

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of these people, if they are going to give expert opinions.

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they are just going to talk about the facts of their job or

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something, then they are like any other fact witness and

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nothing is required.

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percipient witness, like everybody else.

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to give opinions, that's why the rule is written as it is

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written.

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statement from each them.

If

They are just going to be an everyday
But if they are going

You have a certain amount of time to produce a
And one of the excuses for having so

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many people is that there are 14 defendants.

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looking at you, Ms. Gerson, I don't think you have to write 35

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of these, but there are 14 defendants.

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to have to talk to their, whatever it is, two or three --

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MS. GERSON:

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THE COURT:

So I am not

Each defendant is going

Your Honor --- people in house -- I don't know how

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else to call them -- employees, and get them to write up the

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opinions on which they plan to give expert testimony and the

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facts of which they expect to testify, etc., the facts and

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opinions, a real statement that might take care of depositions

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if they knew what they were going to say and would also help

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them make arguments about being duplicative.

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MS. GERSON:

Your Honor, I think we understand that.

I do think we have invited plaintiffs to point out -THE COURT:

They don't need to do it.

I'm not

satisfied with the description I heard in the one paragraph you
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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gave.

That's not explicit enough.

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what is explicit enough and do one that's more detailed, send

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it to Mr. Miller and the court, and see if there is an

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objection, before you do 34 more of the same, that's fine.

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maybe you want to do one in the next three days, send it over

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and say, Will this be satisfactory to you, Mr. Miller and to

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you, the judge.

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So if you want to test out

So

Mr. Riccardulli, you have been here long enough, if
you want to confer, the right way to do it is you say, your

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Honor, may I have a moment?

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Once you say, May I have a moment, I say, Sure, and I stop

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talking.

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MR. RICCARDULLI:

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THE COURT:

Otherwise I consider it rude.

I apologize, your Honor.

Any time you want to confer with anybody,

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you say, May I have a moment please, and then go ahead and

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confer.

Given that, you do or don't?

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MR. RICCARDULLI:

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MS. GERSON:

I do, for five seconds.

Your Honor, we have a few examples I

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think that defendants have done, some defendants have done more

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than others.

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THE COURT:

This probably isn't the time.

If you have

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one that you think really is fuller and complies with

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(a)(2)(C), send that one over to Mr. Miller, copy to the court,

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I think, and say, Will this satisfy everybody?

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then all the rest have to be brought up to that level.

If it will,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And

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then if Mr. Miller wants to make an argument that it is

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duplicative, overlapping, and there are still too many in that

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group, I will at least have paper to be able to figure that

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out.

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doesn't think it is worth it and I don't either.

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the next examples over in the next day, since you think you

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have one.

So let's not spend any more time on (a)(2)(C), because he

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MS. GERSON:

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THE COURT:

Can you give

Yes, your Honor.
When you get that, Mr. Miller, if that

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example is satisfactory to you, then the other 34 should be

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due, all of them, no later than two weeks from today.

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MR. MILLER:

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THE COURT:

Yes, your Honor.
Two weeks from today would be April 2, all

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35.

But if that one isn't satisfactory and you can't resolve

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it, since I will have a copy, we can get on the phone and I

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will agree or disagree that it is satisfactory.

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MR. MILLER:

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THE COURT:

Thank you.
Because I'm going to ask Ms. Gerson to

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copy me on what she sends you, so we can work it out if it is

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not enough.

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MR. MILLER:

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THE COURT:

Yes, your Honor.
What about the other 35, the (a)(2)(B)

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people?

Where are we up to?

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what he is complaining about.

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Let me hear from Mr. Miller, see

people?

So what about the (a)(2)(B)

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MR. MILLER:

Your Honor, I would like to defer that as

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well, because I view them, especially the duplication issue, as

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overlapping.

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THE COURT:

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MR. MILLER:

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THE COURT:

Overlapping with the (a)(2)(C)?
Yes.

Both -- several people.

Deferring is not something we really can

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do.

The whole point is that the discovery of these experts, as

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I understand it, is supposed to end May 30.

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date?

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MR. MILLER:

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THE COURT:

Is that the right

Yes.
We can't defer.

Today is March 19.

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That's why these are being raised in the letters.

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reports, real reports from each of the 35(a)(2)(B)'s?

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MR. MILLER:

You have

We do not have reports from the ones that

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are rendering site-specific reports.

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are owed more than 20 reports at this point.

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THE COURT:

So how many (a)(2)(B) reports do you have?

MR. MILLER:

They have served nine reports out of 35.

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That, by my math, means we are owed 26.
THE COURT:

Of the nine you have got, are they

sufficient?

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MR. MILLER:

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THE COURT:

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In most cases I think we

Yes.
So you are not challenging the quality of

the reports, you are challenging the duplicativeness, overlap,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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etc.

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MR. MILLER:

Not quality.

There are some items that

are the subject of item three in our agenda.

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THE COURT:

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the reports satisfy the rule.

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MR. MILLER:

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THE COURT:

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Oh, irrelevant.

That's different.

But

Yes.
What you are left arguing about is whether

it is duplicative and whether it is irrelevant.

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MR. MILLER:

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THE COURT:

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Where are the other 26 reports, Ms. Gerson?

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MS. GERSON:

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late.

That's correct.
I got that.

Your Honor, based on -- they are not

Based on the schedule, they are not due yet.

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THE COURT:

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MS. GERSON:

That's correct.

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THE COURT:

When are they due?

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MS. GERSON:

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THE COURT:

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Because all 26 are site specific?

April 7.
Oh, and then we are going to be able to

complete all those depositions by May 30?

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MS. GERSON:

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THE COURT:

That's the plan, your Honor.
I don't think they knew how many experts

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you were going to do.

Why do you need nine non-site-specific

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and 26 site-specific?

How many sites are we talking about?

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And why do there have to be different experts for all of these

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sites?

Even if there are 26 sites, why do there have to be 26
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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different people?

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MS. GERSON:

Your Honor, the retained experts, first

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of all, plaintiffs have not provided us with any detail about

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who they are complaining about.

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letter.

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since August for non-site specific, December for site specific,

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and they haven't raised this issue before today.

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They have had our designations of retained experts

And in terms of the numbers, this is right in line
with the experts in New Jersey.

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THE COURT:

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MS. GERSON:

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This issue was not in the

Right in line with what?
The number of retained experts by

defendants in New Jersey.

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THE COURT:

So the numbers are --

I don't think activity in one case creates

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a waiver in another case.

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many or it isn't, period.

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MS. GERSON:

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THE COURT:

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experts?

Either it is correct to have this

And some -Why do you need 26 different site-specific

How many sites are we talking about.

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MS. GERSON:

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are hydrogeologists.

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of supply, and one thing that we, like in New Jersey, are

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facing here are different defendants have different supply

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experts to explain their stories that we believe is a

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significant portion of the numbers.

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There are ten sites, and not all of these
There are site-specific issues in terms

As we mentioned in our letter, we do have a couple of
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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experts that we retained for Puerto Rico that we may not have

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used in other cases, because they are dealing with a very

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different region, and we believe they have specific Puerto Rico

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knowledge that we can't get out of our traditional experts.

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THE COURT:

What I can say is neither the plaintiffs'

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attorneys nor the court can opine without seeing the reports.

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It may that be there is overlap and you should not be using 26

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different people, or it may be that because it is defendant

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specific, with different supplies, as you said, stories, etc.,

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maybe there is a need.

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seeing it.

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But nobody can challenge it without

So I guess until April 7, when they are due, I guess

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you would agree, Mr. Miller, there is nothing more I can say

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about the 26 who you haven't seen.

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MR. MILLER:

I agree, your Honor.

That's the problem

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at the moment and potential duplication, which I can't really

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address until I see the reports.

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THE COURT:

Right, but there really isn't a lot of

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time between April 7 and May 30, especially if you knew these

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numbers back in either August or December respectively.

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said you knew some in August and some in December, and here we

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are in March.

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ago?

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She

Why didn't you say there were 70 a long time

MR. MILLER:

Because we had 35 that were not known and

expected in employees.

So it is the combination of the two

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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that makes it more difficult.

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THE COURT:

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So what you got notice of were the

(a)(2)(B)'s.

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MR. MILLER:

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THE COURT:

We got notice of retained experts.
Was that December or August?

You

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mentioned both dates, Ms. Gerson, I forgot which group is

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which.

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MS. GERSON:

specific were disclosed last August.

The retained site

specific experts were disclosed in December.
THE COURT:

By December you knew there were 35

retained ones.

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MR. MILLER:

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THE COURT:

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MR. MILLER:

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The retained experts the non-site

schedule.

Yes.
And you didn't think that was too many.
No.

We could get it done within the

But now the number is doubled.

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THE COURT:

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MR. MILLER:

I realize.
I am hopeful we will not need to take a

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deposition in most of the current and former employees for

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various reasons; but, until I see and talk to counsel, I won't

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know for sure.

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THE COURT:

Right.

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Well, I think we need to get a date on the calendar

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very shortly after the 7th to handle this issue of the number

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of experts.

It really does sound very high.

So I am going to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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stop -- it is unusual -- and look at the calendar now, for how

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soon after the 7th we can be ready to talk about this issue.

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If the issue goes away, fine, you can cancel, but at least you

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will be on the calendar.

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Wednesday, April 16, at 4:30 or Thursday, April 17, at

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4:30.

It is the earliest date I can give you, because I figure

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you need a week to review the reports.

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is the holiday, and I don't have any idea when Good Friday is.

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So, anyhow, 16th or 17th at 4:30.

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MR. MILLER:

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MR. RICCARDULLI:

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THE COURT:

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(Pause)

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THE COURT:

But early in the week

Either is acceptable to plaintiffs.
Same for defendants, your Honor.

Earlier the better, then.

So we will do it April 16 at 4:30.

It

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will be a special conference just to address expert issues in

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the Puerto Rico case.

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trial.

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It has to be at 4:30.

I expect to be on

That's done.
So we will go on with the agenda, which is the

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arguments about relevant experts.

The plaintiffs say there are

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three issues on which there is no need for experts at all.

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Those issues involve the question of the benefits of using MTBE

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versus lead.

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them, and the other is the benefits of using MTBE versus

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ethanol, and the third has to do with the overall air quality

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benefits of MTBE.

The use of lead as an octane enhancer is one of

There is one expert on each of these issues,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Mr. Austin, Mr. Hoekman, and Mr. Wilson.
Plaintiffs, as I say, said that all of these are

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irrelevant.

The defendants disagree as to all three

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categories, so we should start with the question of lead and I

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will go with the defendants' argument.

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reasons for the lead phased out in the introduction of MTBE as

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an octane enhancer is relevant as to why MTBE was used in the

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first place.

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they decided to use MTBE at all.

Defendants say that the

Defendants argue they are entitled to explain why

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I should preface this and say also defendants say that

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this is a serious issue that shouldn't be raised through letter

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submissions, and it should be done as a full motion in limine

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on the eve of trial.

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that point.

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be done as a motion in limine in either trial is because of the

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issue of depositions.

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schedule, that if I were to agree with the plaintiffs' argument

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on any one of these three, that is one less deposition.

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would rather not leave it out until later in the game because

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all the work has to get done now when time is precious.

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I understood Mr. Riccardulli to address

But the reason why it is timely now and should not

There are so many depositions to

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So I actually thought we could discuss each of the

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three, and it is the lead one that I thought was the easiest.

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It is not a subject for expert testimony.

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explain why you decided to use MTBE, call a fact witness.

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somebody in the company.

If you want to
Call

You don't hire an expert when there

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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is no issue to be decided by the jury.

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essentially this is background information that you think a

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jury should know.

4

to the jury why you decided to use MTBE, fine.

5

expert?

6

is going to be asked a question, and they are not.

7

background information that you say they should know and have a

8

right to know.

9

that answer.

10

You are saying

You think you should have a right to explain
But to hire an

One expert breeds a competing expert, as if the jury
This is

So there are a lot of fact witnesses who know

I don't see why this is a matter for expert

testimony.

11

MR. RICCARDULLI:

Yes, your Honor.

Just two points,

12

one on the timing of the -- sort of the -- that this be briefed

13

more fully.

14

happy to do that now if that's what the court would want.

15

we do think that if the court's considering striking one of

16

these experts, that this should be done on a fuller record.

17

If it is a question of timing, we are certainly

THE COURT:

Nobody needs extra work.

But

This one seemed

18

easiest of the three.

19

may allow short submissions, but I thought the first one was

20

really obvious.

21

fact in the company.

22

answer.

23

The other two may take me more time.

You don't hire experts when it is matter of
Anybody from the company knows the

MR. RICCARDULLI:

Yes, your Honor.

The expert is

24

going to say and explain that when lead was phased out, the

25

industry was faced with having to replace lead and gasoline.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

I

19
E3j2mtbc1
1

The expert was not retained to address that one piece.

2

go on to talk about the other benefits or the feasibility of

3

MTBE versus --

4

THE COURT:

They do

That may be overlapping with somebody

5

else.

6

already about, whatever you call it, the feasibility.

7

That's the problem with overlap.

MR. RICCARDULLI:

You may have an expert

We don't, your Honor.

One of the

8

experts was in -- you referenced them before, and you will

9

remember at least Mr. Austin who testified as to the air

10

quality benefits of MTBE in gasoline, he testified in the New

11

York City case, and you will remember -- you may recall that he

12

testified in the case.

13

THE COURT:

The good luck for me is that I don't

14

remember hardly anything about it.

15

MR. RICCARDULLI:

Mr. Wilson also was involved in that

16

prior case, your Honor, resumed on sort of the scope of his

17

testimony that deals with more of the regulatory framework

18

generally with gasoline, not as to just the phaseout of lead or

19

the benefits of lead versus MTBE.

20

was a viable alternative.

21
22
23

THE COURT:

We are not arguing that lead

That's my point.

It is not an expert

issue.
MR. RICCARDULLI:

Your Honor, I can look at that.

I

24

would like to confer and go back and see if we can remove that

25

one piece, but these experts -- we don't have one expert
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

20
E3j2mtbc1
1

committed to that sole issue.

2

it here, that the lead phaseout and how we can explain that,

3

and if that resolves this, then I can certainly confer with my

4

group and see if we are willing to move past that.

5

THE COURT:

If that's really what's driving

Mr. Miller, do you want to be heard on

6

these three different subjects or do you think this is amenable

7

to further meeting and conferring?

8

Mr. Riccardulli is arguing that some portion of these experts

9

is background in a sense that you could see what they did at

Because I guess

10

the City of New York trial, whether it was really any different

11

here; and if it was limited to those subjects, you may not have

12

an objection particularly, if it doesn't overlap some other

13

expert.

14

specific expert reports that you have and be specific about

15

overlap.

16

That should be obvious, Mr. Riccardulli.

17

long trial as it is.

18

same thing.

19
20
21

And that's the point to read all nine of the non-site

There should not be two people saying the same thing.
It's going to be a

You do not need two people to say the

It's just confusing to the jury and annoying.

MR. MILLER:

There is literally no dispute that the

jury has to hear about with respect to lead.
THE COURT:

I covered that.

I think Mr. Riccardulli

22

gets the idea, and he said, I will look at the report, I will

23

talk to my team, I will try to take out any portion that does

24

not relate to a disputed issue.

25

MR. MILLER:

Frankly, your Honor, I think ethanol is

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

21
E3j2mtbc1
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the same situation.

2

fact witness, give any background information they need to give

3

about ethanol.

4

THE COURT:

I think that the defendants can, through

Let's be specific about Hoekman.

What's

5

Hoekman saying that we need an expert witness when, again, it

6

is not a subject for decision?

7

MR. RICCARDULLI:

Yes, your Honor.

Maybe this helps

8

frame it.

Plaintiffs have a design defect claim in this case

9

that the defendants should not have used MTBE.

One of

10

plaintiffs' own experts, Mr. Moreau, in his report talks about

11

the feasibility and the benefits that ethanol has over MTBE.

12

So --

13
14

THE COURT:

Is Mr. Moreau going to give that testimony

at this trial.

15

MR. MILLER:

I will be happy to strike it, your Honor.

16

It is not an issue unless the defendants are able to bring it

17

up.

18

response.

19

He would have nothing to say about ethanol unless it is in

THE COURT:

This is actually helpful.

So if the

20

plaintiffs' expert is not going to say why ethanol was a

21

feasible alternative that should have been used in place of

22

MTBE, if that issue is not coming up, then let's get it out of

23

the case.

24
25

MR. RICCARDULLI:

Not just Moreau.

There are other

experts, like Mr. Fogg, one of plaintiffs' experts, who talks
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

22
E3j2mtbc1
1

about the environmental conditions versus the benefits of

2

ethanol over MTBE.

3

THE COURT:

If ethanol is coming out of the case on

4

both sides, that's an advantage.

5

four-month trial three months or something, which is good for

6

everybody.

7

and conferring between the sides.

8

point out the plaintiffs are bringing up ethanol.

9

know Mr. Miller would say, I will take it out if they will take

10

it out.

11

It will make, God knows, a

So maybe this is amenable to some talking, meeting
I didn't know that you would
I didn't

So if it is out of the case, it is out of the case.
MR. MILLER:

If feasible alternative is an issue, our

12

feasible alternative isn't going to be ethanol.

13

without MTBE.

14

THE COURT:

15

MR. MILLER:

16

MR. RICCARDULLI:

17

your Honor?

18

It is gasoline

That's a different case.
I do not need to go into ethanol at all.
Then we do need to meet and confer,

that.

19

Because I don't think the expert reports reflect

THE COURT:

They don't know.

20

That's why you called them irrelevant.

21

That's the point.

position.

22

MR. RICCARDULLI:

23

THE COURT:

But you didn't know his

I did not.

So this one may solve itself, given the

24

statements you have made on the record today, Mr. Miller, by

25

talking directly with Mr. Riccardulli and/or his team.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

23
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1

MR. MILLER:

2

THE COURT:

3

what you just said.

4
5
6
7

I will.

Thank you.

The third one is -- well, the third one is

MR. RICCARDULLI:

Yes, your Honor, and the experts are

sort of -THE COURT:

Right.

You are saying they didn't need to

do MTBE at all.

8

MR. MILLER:

9

THE COURT:

That's right.
The alternative is not to do it at all,

10

not to have any oxygenate.

So that takes care of the third

11

topic of the relevancy, too.

So you do need to talk.

12

MR. RICCARDULLI:

13

THE COURT:

14

We are up to the defendant's agenda items, of which

15

Okay.

We do need to talk.
Good.

So that finished that.

there are a lot.

16

But the first one has to do with Mr. Brown's

17

site-specific expert report which was served on January 24 and

18

the defendants have several objections to Mr. Brown's report.

19

Defendants say that Mr. Brown improperly included

20

damages for investigations at several nontrial sites in

21

connection with his opinion about a particular site.

22

know how to say it, but Club de Leones, the defendants say that

23

the commonwealth should not be allowed to recover the cost of

24

investigating eight service stations that were not the subject

25

of discovery.

I don't

In fact, of the eight, one was dismissed and
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

24
E3j2mtbc1
1

five were never identified as release sites and two were

2

identified but would presumably come up in a later phase.

3

Defendants then say that Brown refers to several non-

4

trial sites in connection with his opinion on the Manati and

5

Maysonet trial sites.

6

have had releases, and they weren't identified as trial sites.

7

There has been no discovery.

8
9

Brown notes that 15 additional sites may

And finally defendants object to Brown's inclusion of
173 new wells that were not subject to discovery.

Of these,

10

132 are outside plaintiffs' delineated areas and, they point

11

out that the court has already said that plaintiffs cannot now

12

expand the delineations.

13

delineations, but defendants argued that they weren't

14

identified during discovery, and that the court had said that

15

if they weren't identified by, of all dates, July 1, 2011, only

16

two and a half years ago, then they would be excluded.

17

sum, the defendants say all of this material should be

18

excluded.

19

The remaining 41 are inside the

So, in

Of course, the plaintiffs have respond in some detail

20

with respect to the Club de Leones.

Well, they said they

21

designated that as a receptor trial site, but never disclosed

22

the sources, and that's what experts do, and Brown should be

23

entitled to analyze the eight stations that are the source of

24

the contamination into their receptor well, and that defendants

25

would have a chance to depose Brown about that.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

25
E3j2mtbc1
1

With respect to the 173, the ones that were outside

2

the delineated areas, which is the 132, they apparently are

3

only mentioned in figures attached to the report and this

4

was -- we did something like this in New Jersey.

5

New Jersey that Brown could discuss the wells, but only if a

6

defendant opened the door to that.

7

not be shown to the jury unless the wells were removed.

8

there is still a disagreement about the 41 that are within the

9

delineated areas.

10

I ruled in

Otherwise the figures could
But

So my thought on this, again, the defendants first say

11

that this should be subject to a motion in limine.

12

understand the point.

13

timing or one of full briefing as opposed to the letter

14

briefing, but I can give you a tentative ruling and then see if

15

you think you still need to fully brief.

16

And I

Again, I don't know whether it is one of

So it seems that Brown should be allowed to talk about

17

the eight stations that are the source of contamination into

18

the receptor well that has been identified, and that can be

19

explored at depositions, but I think the New Jersey procedure

20

should apply to the wells outside the delineated areas.

21

with respect to the ones within the boundaries, I think those

22

should be fair game, but I don't know what we do about the fact

23

that they haven't been previously identified and what kind of

24

discovery that would entail now.

25

where I would be coming out.

But

But presumptively that's

I don't think the plaintiffs'

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

26
E3j2mtbc1
1

responded with respect to the Manati and Maysonet trial sites,

2

so I don't know whether those are still in dispute.

3

are in dispute, is it the same argument as it is with Club de

4

Leones, that they are the source of contamination into a

5

receptor.

6

information with respect to Manati and Maysonet because I don't

7

think the plaintiffs responded.

I don't know.

If they

So I need to get a little more

8

Who wrote the plaintiffs' response letter?

9

(Continued on next page)

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
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1

MR. AXLINE:

2

THE COURT:

3
4

I did, your Honor.
Did you mention the 15 wells that are in

contention with respect to the Manati and Maysonet?
MR. AXLINE:

We had an extensive meet and confer

5

before today's session, your Honor, and I think we've resolved

6

the issues with respect to those two wells.

7

THE COURT:

8

MR. AXLINE:

9

Good.
In fact, I think we've narrowed it down

to, and Ms. Gerson can confirm or deny this, but I think we

10

narrowed it down to the 11 wells that are within the delineated

11

area that are identified by Mr. Brown in his expert report that

12

were not previously discussed.

13

THE COURT:

14

MR. AXLINE:

15

THE COURT:

16

MR. AXLINE:

17

THE COURT:

18

MR. AXLINE:

19

THE COURT:

You are talking about Manati and Maysonet?
No, no.
No.

Altogether?

Yes.
The 41 has become 11?
Yes.
Oh, okay.

So there won't be anything more

20

right at this stage of the case with respect to the 132 outside

21

the delineated area, unless defendants open the door.

22
23
24
25

MR. AXLINE:

Yes.

But there is a caveat.

We're, with

respect to the Club De Leones site -THE COURT:

That's different.

I'm talking about

the -- of the 173 that are not Club De Leones and not Manati or
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

29
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1

Maysonet, 132 of those are outside the delineated areas.

2

won't come up unless the defendants open the door.
MR. AXLINE:

3
4

a little different.

5

THE COURT:

6

MR. AXLINE:

7

THE COURT:

8

MR. AXLINE:

9

THE COURT:

10

MR. AXLINE:

12

THE COURT:

MR. AXLINE:

Okay.
But, so -But otherwise correct about 132.
Correct?
Now with the 41 that are in the delineated

Yes, it has.
So the other 30 are not -- there is not

Well, I think the defendants are

withdrawing their objections to those.
THE COURT:

16
17

We're still discussing.

going to be evidence of that in this phase of the case.

14
15

But there may be two wells that are

areas, the number in play has been reduced to 11.

11

13

Yes.

They

The other way around, the 30 are going to

be in the --

18

MS. GERSON:

Your Honor, can I?

I want to like to

19

clarify.

In plaintiff's letter, just briefly going back to the

20

132, plaintiff's letter said it's only on the graphics.

21

THE COURT:

22

MS. GERSON:

Yes.
We discussed ahead of time, they're both

23

on the graphics and in the report, and we'll discuss the ones

24

amongst ourselves how to strike those.

25

THE COURT:

We're in agreement.

Right.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

30
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Conference
MS. GERSON:

On the 41 that are inside, plaintiffs

2

represented that 30 of those, Mr. Brown is not alleging are

3

threatened or impacted.

4

speak, the lay of the land and we'll accept that

5

representation.

6

THE COURT:

7

MS. GERSON:

He's only mentioning them to, so to

Right, okay.
So that does leave 11 that he's now

8

alleging for the first time are potentially impacted or

9

threatened that were not disclosed to us in discovery.

And,

10

indeed, a couple of those, for example, my client took a

11

30(b)(6) of the Commonwealth regarding an Esso service station.

12

A couple of the wells of those 11 were identified in advance of

13

that deposition.

14

Their 30(b)(6) witness specifically said on the record, I was

15

just giving those to you again a lay of the land disclosure.

16

These are not -- these were not disclosed as threatened or

17

impacted.

18

We said, well, this is new information.

That was in November of their 30(b)(6) witness.

Now we have Mr. Brown coming back in January and

19

saying they are.

20

prejudiced not being able to pursue discovery on them, now they

21

have an expert saying that --

22

THE COURT:

23

So these 11 wells we do feel that we've been

What does the expert say about these 11?

Is he saying they're threatened or impacted, Mr. Axline?

24

MR. AXLINE:

25

THE COURT:

Yes, yes.
Isn't he two and a half years late in

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

31
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Conference

saying that?

2

MR. AXLINE:

No.

He said that in his expert report.

3

And I need to correct something Mr. Gerson said, which

4

is that these wells were not disclosed in discovery.

5

had the data that has these wells in it for years.

6

hasn't been analyzed by an expert until Mr. Brown completed his

7

report, and --

8

THE COURT:

9

MR. AXLINE:

It just

identified by July 1st, 2011?

10

They have

Well, what was it I required to be

Those were PROSA(phonetic) wells, your

11

Honor, island wide where the defendants were complaining we

12

hadn't given them exact coordinates for the wells, and you

13

ordered us to do that by a date certain, and we did that.

14

But there was no discussion of, you know, other wells.

15

And there are lots of other types of wells that are within the

16

delineated areas.

17

We didn't have our consulting experts do anything more

18

than try to identify geographic limitations for the experts to

19

analyze when they prepared their reports.

20

record, and I think this was right, that anything within those

21

delineated areas is fair game for the experts.

And you said on the

22

Now, Mr. Brown has now done his analysis and he's

23

identified 11 other wells that are impacted or potentially

24

impacted by the releases that the defendants have known about,

25

and they've known about the wells.

They just didn't know that

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Conference

Mr. Brown was going to include -THE COURT:

2

One more question.

Besides those 11, how

3

many turn up at Manati Maysonet and how many turn up in Club De

4

Leones; in other words, what's the total number of wells that

5

they say they've had no discovery on, and are now going to be

6

in play?

7

what about the Manati and Maysonet, how many is that?

8
9
10
11

So I just want to add the numbers.

MR. AXLINE:

So 11, and then

Those 11 are not involved in Manati or

Maysonet.
THE COURT:

I figured it out.

So I want to know what

the total number of new wells are.

12

MS. GERSON:

Your Honor?

13

THE COURT:

14

MS. GERSON:

15

we're mixing issues.

16

Maysonet are dealing with service stations.

How many?
I think we're mixing up issues.
The 11 are wells.

I think

The Manati and
They're not --

17

THE COURT:

Oh, there's no wells in play there.

18

MS. GERSON:

That was not the issue with those.

19

THE COURT:

20
21
22

That's eight wells,

isn't it?
MR. MILLER:

No, it's not, your Honor.

There's a

single well --

23

THE COURT:

24

MR. MILLER:

25

And Club De Leones?

There was a single receptor, I thought.
They identified nearby release sites for

service stations.
SOUTHERN DISTRICT REPORTERS, P.C.
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1

THE COURT:

2

MR. MILLER:

Yes.

3

THE COURT:

Okay.

5

MR. AXLINE:

Yes.

6

MR. MILLER:

Yes.

7

THE COURT:

Okay.

4

They're also service stations.

So wells that are so-called new are

11.

But do we have a dispute or not a

8

dispute about the service stations then at Club De Leones,

9

Manati and Maysonet; is there a dispute?
MR. AXLINE:

10
11

the Club De Leones issue the next several days.

12

THE COURT:

13

MR. AXLINE:

14

I think we're going to be able to resolve

And how about the others?
And we have no dispute for any, at least

I don't think we do, with respect to Manati or Maysonet.

15

THE COURT:

16

MR. MILLER:

So this whole -Your Honor, I just want to -- we -- I'm

17

sorry.

18

Leones site.

19

problem.

20

that doesn't resolve itself, though, if that site is -- if we

21

don't agree on how to treat that site, there will still be a

22

discovery dispute as to the eight service stations that are

23

linked to that site.

24

but --

25

We met and conferred this morning about the Club De
We may reach agreement on a solution to that

And I guess we agreed we might know by Monday.

THE COURT:

If

We think we may be able to avoid this,

Right.

SOUTHERN DISTRICT REPORTERS, P.C.
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2

Conference
MR. MILLER:

-- if we can't reach agreement, then we

do have a dispute as to those eight sites.

3

THE COURT:

4

MR. MILLER:

5

THE COURT:

Okay.

So --

I just want to be clear.
-- with respect to those eight sites, if

6

you don't reach a resolution, I'm going to refer that directly

7

to the special master, given I'm starting a ten week trial or

8

something horrible like that.

9

have that discovery dispute, take it there and see if you can

10

So go straight to him.

If you

work it out there.

11

MR. MILLER:

12

THE COURT:

13

Now, with respect to the 11 wells within the

14

delineated area, my instinct is to allow that in on the theory

15

of what Mr. Axline argued, but I was there before he said it;

16

namely, that you knew, you know -- you knew about the existence

17

of these wells, there is no way you could know the expert's

18

opinion until he did his expert work.

19

to be anticipated some of the wells were identified might in

20

fact, once examined by an expert, turn out to be either

21

impacted or threatened.

22

Understood.
Okay.

So it was always going

What discovery would this open up for these 11

23

locations if I left them in?

24

MS. GERSON:

25

THE COURT:

Well, your Honor -In other words, if Brown was allowed to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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1

testify about it and they're part of the case, what would you

2

say happens then?
MS. GERSON:

3

Yeah, I think first of all in terms

4

whether we knew about them, we asked very specific discovery

5

requests, very specific, what are the wells allegedly

6

threatened or impacted, and these were not disclosed.

7

not never supplemented later on.

8
9

THE COURT:

It was,

Secondly --

It was always anticipated when the experts

did the analyses, you would learn who through the expert

10

analysis, it's sort of the final parameters of the opinion.

11

it's only 11 within the delineated area, that's good news.

12

The dispute started out with 173.

If

We're down to 11.

13

So my question to you is what would you have to do to not be

14

prejudiced in terms of discovery with respect to these 11

15

sites?

16

just a matter of receiving reports of testing that was done at

17

those 11 places, any history of testing about what was found,

18

what would you need to discover?

19

Is it just a matter of -- not sites, but wells -- is it

MS. GERSON:

Your Honor, we can certainly confer with

20

our experts.

21

testing data, basically documents in their possession, but

22

testing data, we don't have the well depth.

23

don't know if it's drawing water from shallow or deep.

24
25

Off the top of my head I think that certainly

THE COURT:

So, for example, I

But they could get that to you very fast I

think or they better be able to get it very fast, or they can't
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

36
E3jzmtb2
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Conference

do this, but go ahead.

2

MS. GERSON:

Well, depth screen, screen level, pumping

3

rates, historic pumping rates.

4

with our experts, but -- and if I could confer with Mr.

5

Riccardulli?

I think we'd have to confer

6

Your Honor, one of the issues goes back to what I

7

mentioned, which was when we took the 30(b)(6) deposition,

8

these were -- a couple of these we were told they're not

9

threatened, and now we're being told that they are.

I think we

10

need at least a deposition of a 30(b)(6) to explain to us the

11

EQB --

12

THE COURT:

The what?

13

MS. GERSON:

I'm sorry, the Environmental Quality

14

board's position as to why they did not investigate these

15

wells, require action at these wells, but for leaving it to

16

there expert to now raise an opinion.

17
18
19

THE COURT:
that now somewhat.

I'd like to know Mr. Axline's answer to
Why?

MR. AXLINE:

First, let me say, your Honor, that when

20

we responded to the discovery request from the defendants,

21

every one of those had a caveat that this is subject to expert

22

reports which are going to be coming.

23

reason you have an expert is to address things that the EQB

24

doesn't have the time or the resources to address on its own.

25

So the EQB has the information that it has, it did what it

So it's not like -- the

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could with that information, and now retained an expert for the

2

case to do what experts do, which is look at it closely.

3

And I don't think there's anything that the defendants

4

don't have that Mr. Brown had.

5

anything the defendants don't have.

6

information that he relied on to reach his opinion.

7

THE COURT:

I don't think Mr. Brown has
We produced all the

Well, do you have any testing data?

They

8

say they don't know the depth of the wells, they don't know the

9

screen, they don't know --

10

MS. GERSON:

11

THE COURT:

12

MR. AXLINE:

Pumping.
Yes.
If there is information that Mr. Brown

13

has that hasn't been given to them, they're welcome to ask

14

specific questions, what about this --

15

THE COURT:

Let's not wait for that.

Why don't you

16

ask him what data he has with respect to each of the 11, put it

17

together in packets and send it off.

18

MR. AXLINE:

I think we've already provided that, but

19

I'll double check that.

20

Mr. Brown.

21

THE COURT:

And they're going to be able to depose

I know, but -- that's very nice, but it's

22

good to be ready to depose people by having information in

23

front of you.

24

other topics she mentioned, it should be produced immediately.

25

So if you have testing data, as I said, the

MR. AXLINE:

I'll make sure that they have every piece

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of information Mr. Brown has with respect to those wells, as

2

well as everything else in his report.

3

MS. GERSON:

4

THE COURT:

5

MR. AXLINE:

6

THE COURT:

7

MS. GERSON:

8

THE COURT:

9

Yes.
MS. GERSON:

10

Your Honor?
Well, by when, by a week from today?
By a week from today, yes.
By a week from today.
Your Honor, I think it would be -Which would be March 26.

It would the -- it would be everything --

11

I mean, we would also want what the plaintiffs have on these

12

wells.

13

THE COURT:

Fair enough.

And then we can revisit

14

after you get that, after you've had a chance to consult with

15

your expert.

16

your -- last times you spoke, you said we need to talk to our

17

experts and see what they would need.

18

to do that.

19

promptly.

20

and if you consult with your experts, you can come back.

21

would do a shorter time frame than the other issue we just set

22

a date for.

23

need be.

24
25

Because you did say that a couple of times in

So you'll have a chance

And we can talk about this also again very

If you receive this data, we know we're down to 11,
We

We can I think hear you about this in ten days, if

So you're going, Mr. Axline is going to make sure you
have all data that he has by the 26th of March.
SOUTHERN DISTRICT REPORTERS, P.C.
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talk to your experts.

2

have to talk about this issue.

3

check the calendar on this trial.

4

afternoon of April 1st, say 3:00 o'clock, if we have to talk

5

about this issue further.

6

MS. GERSON:

7

THE COURT:

8

off.

So I'm thinking April 1st or 2nd if I
Give me one minute to just
I could see you the

Shall I calendar that just in case?

Thank you, your Honor.
It doesn't hurt.

It's just a computer entry.

We can always take it

So 3:00 o'clock.

9

MS. GERSON:

By telephone, your Honor, or in person?

10

THE COURT:

Well, they have to come from California so

11

I guess telephone.

12

be the -- I'll call it delineation new 11 wells.

13

pretty good description.

14

telephone.

15

So please get the issue down so this would

3:00 p.m. if needed.

That's a

I'll note

But by then there are two things that have to happen

16

Mr. Axline.

17

data you have, and then, Ms. Gerson, be sure you've had a

18

conversation with your experts as to what they would need.

19

right.

20
21
22
23

One week from today make sure they have all the

Now, we can move on.

All

Yes, that finishes that agenda

item.
Okay, the next agenda item is defendants' request for
an order on authentication of documents.

24

MR. RICCARDULLI:

25

THE COURT:

Your Honor?

You resolved it?

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MR. RICCARDULLI:

Almost, but I think we're going to

2

resolve it.

We met and conferred this morning.

3

through a red line draft.

4

with a joint submission later this week.

5

THE COURT:

6

MR. MILLER:

7

THE COURT:

We went

I think we'll be able to present you

Okay.
I agree, your Honor.
Okay.

I'm happy to skip that one and move

8

to the third topic, which we had called plaintiff's failure to

9

produce certain expert reliance material.
MS. GERSON:

10
11

sorry.

12
13

Your Honor, I think that's Mr. Axline --

MR. RICCARDULLI:

I think you skipped number three,

your Honor, on the agenda.

14

THE COURT:

I thought that was number three.

15

MR. RICCARDULLI:

16

THE COURT:

We have it as four.

Okay, just a minute.

17

see.

18

There is one --

Let me look back and

liability, is that what you want to do?

19

Oh, plaintiff's failure to identify theories of

MR. RICCARDULLI:

Yes, your Honor.

And again I just

20

want -- we met and conferred this morning.

I think we've

21

reached an agreement and this was sort of the conversation we

22

have to have for the Club De Leones site, the one site we

23

talked about earlier.

24

that they are not going to rely on the commingled product

25

theory of liability.

Plaintiffs have now confirmed for us

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THE COURT:

At all?

2

MR. RICCARDULLI:

At any of the trial sites, except

3

for the De Leones site, and we're talking about how to handle

4

that one site now that it has a different causation theory, but

5

otherwise I think that that resolves this issue.

6

MR. MILLER:

Your Honor, that is correct, except we

7

reserve the right, if there is a later trial state-wide claim,

8

that we may have different theories.

9

cases, these focus sites, that is the case.
THE COURT:

10

Okay.

But with respect to these

So that takes us to plaintiff's

11

failure, alleged failure to produce certain expert reliance

12

materials.

13

MS. GERSON:

And, your Honor, I think we're in good

14

shape on that.

Mr. Axline -- there was a couple of additional

15

items he has committed to get us by Friday.
We did just want to -- we raised it initially because

16
17

if we do have further issues, we didn't want it to be the first

18

time you're hearing about, but for today I think we're good.

19
20

THE COURT:

23
24
25

That takes us to a schedule for

summary judgment, premotion letters and/or hearing.

21
22

Okay.

What summary judgment motions are being considered and
by whom?

You are Ms. Roy?
MS. ROY:

Yes, your Honor.

I've been coordinating for

the joint defense group on this.
There are about five motions that would be relevant to
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all the defendants, and then a handful of defendants' specific

2

motions.

3

But, your Honor, I actually think that the station

4

matrix issue for the remaining claims at issue in the case is

5

something that we should address first.

That really governs

6

how many motions there are going to be.

If we can resolve some

7

of the issues related to which defendants are being targeted

8

and which stations, it hopefully will make some of the motions

9

go away or at least be substantially shorter.

10
11

THE COURT:

So you're just saying go to issue six

before five.

12

MS. ROY:

Yes, your Honor.

13

THE COURT:

All right.

Issue six, the defendants ask

14

the plaintiffs to clarify which defendants are at issue for

15

each station, and this is of course OCW -- whoops.

16

to OCDWD when we talked about summary judgment.

17

said that.

18

County, okay.

19

to which defendants are at issue of each station.

20

Orange County has claims at 34 stations, is that right; is that

21

you, Mr. Miller?

We're not in Puerto Rico any more.

We switched

I should have
We're in Orange

So let's go back to Orange County with respect

22

MR. MILLER:

23

THE COURT:

Currently

Yes, your Honor.
And in the spring of 2013, plaintiffs did

24

provide defendants with a station matrix identifying the claims

25

that plaintiffs were pursuing against each defendant and each
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station.

2

expanded the number of defendants allegedly responsible at each

3

station.

4

claims only against the defendants at the sites previously

5

disclosed.

6
7

But defendants say that the matrix dramatically

So they want an order limiting plaintiffs to pursuing

So I don't think I understand.

Ms. Roy, is this your

issue?

8

MS. ROY:

Yes, your Honor.

9

THE COURT:

So are you saying that in the spring of

10

2013 when the matrix came and with the dramatic expansion, you

11

want me to go back before the spring of 2013, even though

12

you're not raising this till the spring of 2014?

13
14
15

MS. ROY:

Well, in terms of that delay I'll address

that part first.
Defendants have been sending meet and confer letters

16

for the last year to Mr. Miller's office trying to get some

17

resolution and narrowing the station matrix down to the

18

stations that should be targeted, or at least to the ones that

19

were disclosed during discovery.

20

progress.

21

THE COURT:

We have not been able to make

But it's been a year.

Spring, they tell

22

me, you never know from the weather, but they tell me it starts

23

Saturday.

24

quote, dramatically expanded.

25

for a year?

So it's a year that you've had this matrix that,
Why haven't I heard about this

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MS. ROY:

Your Honor, I can understand.

We've been

2

frustrated too.

3

continually get told we're going to get back to you, we're

4

about to send you letters with information.

5

We've been trying to work with them.

We

We, of course, were wrapping up the Fresno and RDA

6

matters which those opinions are actually quite helpful in

7

terms of focusing the issues for Orange County.

8

make sense to really report the issue in front of you until

9

now.

So it did not

But our hope is that -- I had conversations with

10

Mr. Axline and Mr. Miller in the hallway that they are working

11

to try to narrow that list, and I'm hopeful that we can get to

12

a place where we know that the actual defendants that are

13

targeted at each station.

14

THE COURT:

Well, so you asked me to turn to six

15

before I turn to five, but then you're telling me you're not

16

ready for me to turn to six because you're hoping to talk to

17

each other.

18

MS. ROY:

Well, frankly, your Honor, I'll take an

19

order from you or agreement from them to narrow the station

20

matrix, whichever way --

21

THE COURT:

Well, an order for me that says you're

22

directed to narrow is not a very meaningful order.

23

dropping one defendant at one site and then saying, okay, you

24

told me to narrow, I cut it back by one.

25

order.

It has to be specific.

It could be

That's not a helpful

And that's what you're

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negotiating.

I couldn't do anything more than that today,

2

because, A, you're still negotiating after a whole year, and,

3

B, it's a meaningless order to say narrow because, as I said,

4

34 to 33 isn't narrowing, but doesn't do much.

5

what I can do today, but I hate to put this one off.

6

everything on the agenda you say we're meeting in the hall, we

7

met this morning.

8

apparently it gets you talking.

9

the time.
MS. ROY:

10

So I don't know
And yet

Good thing I have these conferences because
But I can't do anything with

Your Honor, I think there is a proposal that

11

should hopefully move this forward.

12

have an in person meet and confer with the defendants in the

13

next two weeks to narrow down the, hopefully narrow down the

14

list with the --

15
16

THE COURT:

Mr. Axline volunteered to

So when should I schedule the follow up on

this one?
MS. ROY:

17

Your Honor, if I could make a proposed

18

schedule.

What we would do is within the next two weeks we

19

have in person meet and confer.

20

plaintiffs would be directed to submit a revised station

21

matrix.

22

THE COURT:

23

MS. ROY:

24
25

Within two weeks of that date

Directed by whom?

By you, or by agreement, however they want

to work it out.
THE COURT:

Go ahead.

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MS. ROY:

And then after that, we can set a

2

preconference hearing or premotion hearing for perhaps mid to

3

late May for the first round of summary judgments, and we can

4

work out a briefing schedule.

5

THE COURT:

6

I would never really work on the matrix

issue so-called, I would just talk about summary judgment.

7

MS. ROY:

Well, there is one conceivable instance

8

where we would need your involvement.

If we reach a station

9

matrix that in defendant's view is still overblown and exceeds

10

what was disclosed during discovery, then we would be back in

11

front of you with a motion that would be to specifically limit

12

the matrix to only that which was discovered or disclosed in a

13

timely fashion.

14

would need to involve you.

So that's the only instance where I think we

15

THE COURT:

16

conference for the in person?

17

MS. ROY:

18

THE COURT:

19

MS. ROY:

20

THE COURT:

What's the date I set earlier in this

April 16.
Yes.

Did I say 16th?

That's what I wrote down.
That's four weeks, I mean that's the right

21

date.

So we'll have to add this to that agenda.

22

issue I thought I was going to do on the 16th?

23

it down.

24

Puerto Rico MTBE case.

25

put down slash matrix issue in OCWD case, and that would be in

Let's see.

What was the

I think I wrote

April 16th, I wrote down expert issues in
I will have to add, just to state now I

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person.

2

their miles, but we'll do it the same night.

3

4:30.

4

So that has been added.

5

so-called, that's the date.

6

phone earlier if after two weeks you see there is no progress

7

and you want an order maybe that they need to gave revised

8

matrix by X date.

9

just ask for telephone conference by calling my clerk on this

10

case.

11
12

They're monthly flight, they must be doing well on
We'll start at

If we don't finish till 10:30, that's that.

All right.

If you can't resolve the matrix issue
But also happy to jump on the

If you can't get that far in your own talks,

You know who that is, right?
MS. ROY:

Your Honor, would it be also possible to

schedule a further date out for the motion?

13

THE COURT:

14

MS. ROY:

15

THE COURT:

For the premotion conference.

Sure.
No, I realize that.

So that should be two

16

weeks after that.

17

which is not a good day, but April 29th and May 1st are both

18

good dates.

19

May 1st, which do you like?

20
21
22

So two weeks from then would be April 30th

So Tuesday or Thursday of that week, April 29th or

MR. AXLINE:

Either is fine with the plaintiffs, your

Honor.
MS. ROY:

Your Honor, would it be possible to push to

23

the following week?

24

THE COURT:

25

No, I got to get done, that's why.

April 29th or May 1st, Tuesday or Thursday.
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MS. ROY:

We'll take May 1st.

2

THE COURT:

Okay.

Now, to do that properly, you know,

3

I need premotion letters explain the outline, the motions you

4

intend to make, why there has to be five different motions.

5

That's not my style.

6

motion practice so she can never decide the case and the case

7

could never go to trial.

8

with several issues with page limits, we work it out.

9

really don't want five separate motions.

That's called burying the Judge with

I don't like that.

I like one motion
I don't

There have to be some

10

specific or defendants specific, that may be, I understand that

11

that's different, but I don't know the issues are yet.

12

to outline it.

13

most cases doesn't make sense here for outlining the issues.

14

So I would say ten double spaced pages is the maximum for the

15

premotion letter that describes all the motions the defense

16

wants to make, and a response letter of the same length.

17

that should be enough letter writing.

18

ten double spaced.

19

to read, which means it has to come in by Tuesday, the 29th, so

20

I'm ready to talk to you on Thursday, the 1st.

21

in, I can't read it, I can't have an intelligent conference.

22

And that's back to 4:30, because that endless trial if it's for

23

real, really going to be still on trial.

24

4:30 on May 1st in person.

25

judgment premotion conference.

So try

Obviously the three page single space limit in

And

So ten double spaced,

But you got to get it done in time for me

If they're not

So, again, it's a

I'll call that OCWD summary

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MS. ROY:

2

THE COURT:

3

MS. ROY:

4
5

Your Honor, if I can clarify?
Yes.

The April 29th deadline, is that for both

the original -THE COURT:

No, that would be -- the second letter has

6

to be in by then.

7

five business days before that.

8

have both letters in hand 48 hours before.

9

letter I will have had five more days to read, so you have a

10
11

So the first letter has to be in I think

small advantage that way.

Response letter by then, so I
Obviously the first

Okay.

So now we've covered for this purpose agenda item five

12

and six -- whoops -- six, and that's that.

13

That's the whole

agenda, yes?

14

MR. WALSH:

15

that didn't make the agenda.

I've discussed with

16

Mr. Riccardulli in advance.

In the new MTBE cases,

17

specifically in the Brewster case, you had given a deadline

18

earlier this month for amendments to the complaint.

19

literally hours after that one of the plaintiff's specifically

20

in the Brewster case advised us that it was dividing its

21

corporation and would have a name change.

22

opportunity to yet again amend that complaint to reflect the

23

change in the plaintiff.

24
25

THE COURT:

Your Honor, William Walsh.

Just one item

Probably

We'd like the

And I've raised with defendants that.

That's no big deal.

You don't object to

that, do you?
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MR. RICCARDULLI:

I don't think so, your Honor.

I

2

normally just don't agree on behalf of the group without

3

letting them know, but I don't foresee a problem with that.

4

And I could certainly get Mr. Walsh a note by tomorrow that

5

let's him know.

6

THE COURT:

Sure.

7

MR. WALSH:

And I would expect we can do this within a

8

week or ten days once they finalize the new corporate name and

9

have everything in place.

10

THE COURT:

11

Anything else?

12

MR. WALSH:

Thank you, your Honor.

13

THE COURT:

Do we need an initial conference on -- how

14

Okay, good.

No problem.

many new cases are there, just one; is there more than one?

15

MR. CONDRON:

16

new cases with 11 plaintiffs.

17

THE COURT:

18

Your Honor, Peter Condron.

Okay.

It's four

Can they all be handled at one

conference together maybe to set a schedule?

19

MR. CONDRON:

I think they probably could.

It may be

20

a little bit premature right now to schedule a conference on

21

them.

22

THE COURT:

Why?

23

MR. CONDRON:

We're still having some preliminary

24

conversations with plaintiffs about a number of issues, and I

25

just want to go through some of those.

We might be able to

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obviate the need for a conference.
THE COURT:

2

You can never obviate the need for a Rule

3

16 conference.

4

initial scheduling conference with the Court where the Court

5

sets a schedule for discovery in the case.

6

one of our 10,000 cases per year.

7
8

I mean that's essentially what it is, it's an

MR. CONDRON:

We do that in every

We're having settlement discussions with

them.
THE COURT:

9

Oh.

10

MR. CONDRON:

11

MR. RICCARDULLI:

All four may go away?

Conceivably.
Yes, your Honor.

And you did set a

12

CMO on those cases earlier this year I think that does layout

13

some discovery.

14

schedule so we could have these conversations, and we're in

15

that phase right now.

16

place.

17

we've gotten responses, so.

18

THE COURT:

We actually asked for a quick delay to that

But there is a discovery schedule in

Certain requests have already been served.

I think

Well, it's our practice, I think, to set

19

an all case conference about once a month.

20

April because we have so many conferences scheduled now, I

21

don't know if it's two or three, but we did several, I think

22

three.

23

I could jump to May, but then I want to have that conference,

24

Mr. Condron, wherever you're up to.

25

Maybe we could skip

I think I just set three different dates in April.

MR. CONDRON:

Understood, your Honor.

Thank you.

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THE COURT:

Yes.

All case conference for May.

2

if nobody wants it, I'm sure it won't hurt my feelings.

3

be willing to cancel.

4
5

Again,
I'll

So I'll pick a date in May.

How about May 13th at 4:30?

That's a Tuesday.

Does

that sound okay?

6

MR. RICCARDULLI:

7

MR. WALSH:

Fine, your Honor.

8

THE COURT:

Okay, so that would be the equivalent of

9

That's fine, your Honor.

the monthly all MTBE conference.

4:30, May 13th.

10

Okay, is there anything else?

11

MR. AXLINE:

Not from plaintiffs.

12

THE COURT:

All right, thank you.

13

MR. AXLINE:

14

(Adjourned)

Thank you, your Honor.

15
16
17
18
19
20
21
22
23
24
25
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