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

Filing 4345

TRANSCRIPT of Proceedings re: conference held on 12/9/2015 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Vincent Bologna, [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 1/10/2016. Redacted Transcript Deadline set for 1/20/2016. Release of Transcript Restriction set for 3/19/2016.(McGuirk, Kelly)

1

1

Fc9dmtbc

2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

3

Speakerphone Conference

4
5

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

6
7

00 MDL 1358
00-cv-01898
04-cv-04968
07-cv-10470
14-cv-06228

(SAS)
(SAS)
(SAS)
(SAS)

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

8

December 9, 2015
4:31 p.m.

9
Before:
10
HON. SHIRA A. SCHEINDLIN,
11
District Judge
12
APPEARANCES VIA SPEAKERPHONE
13
14
15
16
17

JACKSON GILMOUR & DOBBS, PC
Attorneys for Plaintiffs
BY: JOHN D.S. GILMOUR
MCDERMOTT, WILL & EMERY, LLP
Attorneys for Defendant Exxon Mobil Corporation
BY: JAMES PARDO
LISA A. GERSON

18
19

SUTHERLAND ASBILL & BRENNAN LLP
Attorneys for Defendant Vitol
BY: MEGHANA D. SHAH

20
21

THOMPSON & KNIGHT,LLP
Attorneys for Defendant Petrobras America, Inc.
BY: JAMES B. HARRIS

22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

2

1

(In chambers; speakerphone call connected)

2

THE COURT:

3

Mr. Gilmour.

4

MR. GILMOUR:

5

THE COURT:

Good afternoon, Mr. Pardo.

6

MR. PARDO:

Good afternoon, your Honor.

7

THE COURT:

And is Ms. Gerson on the phone also?

8

MS. GERSON:

9

THE COURT:

Good afternoon.

Good afternoon, your Honor.

I am, your Honor.

Good afternoon.

Is anybody else on the call?

10

No.

11

MR. HARRIS:

Your Honor, this is Jim Harris, with

12

Thompson & Knight, on behalf of Petrobras.

13

participate but would like to be able to listen in.

14

THE COURT:

15

MR. HARRIS:

16

THE COURT:

17

MS. SHAH:

18

Sutherland.

I do not intend to

What is your last name again?
Harris, H-a-r-r-i-s.
Oh, OK.

Yes.

And, your Honor, this is Meghana Shah from

I represent Vitol.

I also just want to listen in.

19

THE COURT:

You represent who?

20

MS. SHAH:

The Vitol defendant.

21

THE COURT:

OK.

All right.

In any event, the reason

22

I called this telephone conference is because of a pending

23

motion for reconsideration of this Court's October 1, 2015

24

decision denying summary judgment for the defendants on the

25

statute of limitations grounds, in particular the SOC 0242
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

3

1

trial site.

2

incorrectly because there was this report that indicated the

3

presence of MTBE, and the Commonwealth raised a disputed issue

4

of fact by saying, yes, we got the report but, no, it didn't

5

really indicate in the body of the report that MTBE was

6

present, so we were not aware as of the date of the report of

7

the presence of MTBE at that site.

8

we would have been time barred because those reports were

9

received in October -- I'm sorry, in 2004 and October 2005,

The defendants say that I applied the law

You know, if we had been,

10

respectively, and any knowledge before June 12, '06 would make

11

the claim time barred.

12

But in reviewing the briefs on reconsideration, I am

13

no longer confident that merely raising an issue of fact as to

14

whether the report put the Commonwealth on notice is enough.

15

think that is a disputed issue of fact.

16

received, but whether or not it provided notice is a fact

17

question.

18

I

Yes, the report was

But the law seems to be that the Commonwealth would

19

have to not only prove a lack of knowledge but has to show the

20

date when it did become aware of the damage, and that's in a

21

couple of the cases that were cited in the briefs -- Rivera, a

22

1982 District of Puerto Rico case, and Davis Davis v. Colon

23

Rivera, another case, not the district court, but in any event,

24

another Puerto Rico case.

25

So the question is whether the Commonwealth can
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

4

1

proffer the date when it did become aware of the damage,

2

because in its responsive papers on the summary judgment motion

3

it didn't.

4

but it didn't offer the date on which it learned.

5

the reconsideration briefing it still relies on the fact that

6

the Court found that that was a disputed issue of fact that

7

would require that the summary judgment motion be denied.

8

now I think that they have to come up and tell me what is the

9

date on which the Commonwealth claims it did become aware.

It just contested that the reports put it on notice
And even in

But

And

10

I would allow a supplemental submission on that point if the

11

Commonwealth had the dating, can show how it has the date.

12

So, Mr. Gilmour, the call is really directed at you.

13

MR. GILMOUR:

Yes, your Honor.

And to be clear, for

14

the purposes of the record, the Commonwealth -- and I believe

15

we have to send in our response in opposition to the motion for

16

reconsideration -- disagrees necessarily that the case law

17

requires us to provide a date in this instance, but I

18

understand that is not the question you have pending with me

19

now.

20

So if you will allow us argument on that -THE COURT:

It is not a matter of argument.

The

21

defendants have provided Puerto Rican cases that say the

22

Commonwealth has to not only prove a lack of knowledge but has

23

to affirmatively -- and I quote from the Rivera decision --

24

"show the date when it became aware of the damage."

25

not a matter of an argument; you need to submit a fact-type
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

So it's

5

1

affidavit from somebody to say this is when we learned.

2

mean, you know, you brought suit so you had to have learned at

3

some point, so the question is when and how did you learn.

4

I

It is not a matter of supplementing your argument.

5

don't want further argument as to what the law requires.

6

have had that basically twice now.

7

judgment motion and I have it on the reconsideration.

8

decide for myself what the law requires.

9

I

I

can proffer that date.

I had it in the summary
I can

I want to know if you

10

MR. GILMOUR:

Yes, your Honor, and I will momentarily.

11

I would also say that those cases provide after the

12

defendant identifies the date, if the plaintiff disagrees with

13

that date, it is typically on issues of latent damages where

14

they admit now we will have the date of the surgery but the

15

damage does not become aware until later --

16

THE COURT:

OK.

But our case here is the defendants

17

do say you knew when we sent that report, or those reports, in

18

'04 and '05.

19

not put us on notice, and I ruled in your favor and I said

20

that's a disputed issue of fact that those reports put you on

21

notice.

22

say we didn't know then because we want you to agree with us

23

that either that is a disputed issue of fact or you should just

24

accept that you didn't put us on notice but here's when did

25

learn it, and I am looking for that other half.

You've contested that and say those reports did

But I now think you have to go further than that and

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

6

1
2
3

MR. GILMOUR:

Yes, your Honor, and I will give you

that date now.
And just because of the nature of how it was derived,

4

I state that the Commonwealth would respond without waiving any

5

privileges or protections, including the attorney-client

6

privilege and the work product doctrine, and that date is

7

August 26, 2011.

8
9
10
11

THE COURT:
the date.

Yes.

It is not enough I think to give me

What happened on August 26, 2011 that puts the

Commonwealth on notice?
MR. GILMOUR:

Yes, your Honor.

Again, without waiving

12

any privileges, a nontestifying consulting expert provided the

13

Commonwealth with materials identifying the presence of MTBE at

14

that site, at the SOC 42 site.

15

THE COURT:

OK.

Can you put the representation you

16

just made -- although it is on the record, I do have a court

17

reporter here -- in an affidavit format?

18

MR. GILMOUR:

19

THE COURT:

20

MR. GILMOUR:

21

THE COURT:

22

MR. GILMOUR:

23

THE COURT:

24
25

I can, your Honor.

OK.

Would you submit that promptly?

I will, your Honor.

OK.
I will do it as quickly as possible.

OK.

Now, Mr. Pardo or Ms. Gerson, do you

want to add anything?
MR. PARDO:

Your Honor, it's Jim Pardo.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

Good

7

1

afternoon and thank you.

2

I would, if I could, just for a few moments.

3

THE COURT:

Mm-hmm.

4

MR. PARDO:

I understand that you are allowing

5

plaintiffs to supplement the record in this instance, and I

6

appreciate that.

7

shown them to us in the past.

8

the record -- I always hate to do this, but our client does

9

object to that because we believe that the standard, the legal

10

standard, the legal burden of proof that plaintiff has to meet,

11

including the cases that are cited in our brief and that you

12

have referred to, were known or should have been known to the

13

plaintiff, and they should have come forward with this date

14

beforehand.

15

the briefing or the Rule 56.1 statements that were submitted by

16

them on this motion.

17

think they failed to meet their burden of proof here, and on

18

that grounds alone I think we're entitled to summary judgment.

19

I think that is a courtesy and that you've
I would just like to know for

It should have been part of the four corners of

THE COURT:

They didn't do that and for that reason I

Right.

I understand your point, but the

20

way I look at it is because of your motion to reconsider, in

21

fact, the ruling is not a final ruling and it's subject to

22

change under Rule 60.

23

correct it at any time before final judgment.

24
25

The Court really has the right to

So the bottom line is that having now accepted, so to
speak, your interpretation of the case law, I feel that it is
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

8

1

fair to expand the record in order to justly decide the motion.

2

It was decided, of course, in plaintiff's favor in the first

3

place, but it's reopened by virtue of your motion for

4

reconsideration, which kept it from being final anyway, and at

5

this point I think it is fair to expand the record or to allow

6

the record to be supplemented.

7

is where I come out.

8

MS. GERSON:

9

THE COURT:

10

MS. GERSON:

11
12

So I take your point but this

So -Your Honor.
Yes, Ms. Gerson.
Yes.

Would the defendants have an

opportunity to respond -THE COURT:

I don't think it requires a response.

I

13

mean, they are just going to put in a fact affidavit that says

14

this is when we learned, this is how we learned.

15

really not much more to say.

16

MS. GERSON:

17

There is

So, your Honor, if I could just say that

I believe that they -- Mr. Gilmour gave us August 2011.

18

THE COURT:

19

MS. GERSON:

Yes, August 26th.
But this site was already selected by

20

plaintiffs as a focus site in March 2011.

Again, it is also

21

four years after the complaint was filed.

So I think

22

defendants may have information after seeing the declaration

23

that would be relevant.

24
25

MR. PARDO:

I would add, your Honor -- Jim Pardo --

that the site was on a site list that plaintiffs provided to
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

9

1

us -- I don't have the exact date but it was in 2010.

2

had to have known.

3

THE COURT:

4

Mr. Gilmour, that is odd.

So they

Yeah, that is odd, come to think about it.
I thought you were going to

5

select any date after June 12, '06 so it would be timely.

6

realizing the date you have stated, that is odd because you

7

named this site much earlier and in fact selected it as a focus

8

site.

9

But

So now I am confused.
MR. GILMOUR:

Yes, your Honor.

You may recall that

10

this case was filed in 2007 originally as an island-wide case

11

without identifying sites.

12

THE COURT:

13

MR. GILMOUR:

14

THE COURT:

15

Right.
Thereafter --

But when was it selected as the focus

site?

16

MR. GILMOUR:

I'm sorry, your Honor.

17

THE COURT:

18

MR. GILMOUR:

19

We developed a list of sites that was overinclusive in

When was it selected as a focus site?
I'll explain, your Honor.

20

2010, as Mr. Pardo just stated.

We then, based upon certain

21

information, reduced that down to focus sites, which, as

22

Ms. Gerson identified, was March 1, 2011.

23

revise and analyze those sites to determine which would be the

24

best sites and develop further evidence on this to identify the

25

trial sites, which happened much later, and that's how we

We continued to

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

10

1

related to the SOC 0242 site.

2

and identified MTBE as a contaminant there on August 26,

3

2011 --

4

THE COURT:

We made our final determination

You mean up to that time, with this

5

so-called overinclusive list, you didn't know whether it even

6

had MTBE or not, you just knew it was a Hess station site in

7

Puerto Rico?

8
9
10

MR. GILMOUR:

that was on the LUST list and that there was BTEX
contamination.

11
12

THE COURT:

MR. GILMOUR:

On the what list?

I missed the

The LUST, the leaking underground

storage tank, your Honor.

15
16

I see.

word.

13
14

We knew that it was a gas station site

THE COURT:

OK.

The LUST list and it had BTEX at the

site?

17

MR. GILMOUR:

18

THE COURT:

Yes, your Honor.

I see.

OK.

But it is going to be your

19

statement that you didn't know of the MTBE contamination until

20

2011.

21

All right.

Look, I think let's just get back to

22

Ms. Gerson.

I mean, you can put in something but it's going to

23

be argument, I think, not fact-based since now both sides have

24

explained the history of these dates, but I won't stop you from

25

responding.

I think it's not a useful effort, but if that's
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

11

1

what you want to do to complete the record, I won't stop you.

2

So when are you going to have yours in, Mr. Gilmour?

3

MR. GILMOUR:

Your Honor, I need to contact the client

4

again, and right now I am in Washington, D.C.

5

returning to the office tomorrow.

6

next week, I would appreciate it?

7
8

THE COURT:

I will be

If I could have until early

Let's make it, please, the close of

business on Tuesday, the 15th, please.

9

MR. GILMOUR:

10

THE COURT:

Yes, your Honor.

And, Ms. Gerson, if you really think that

11

some kind of a response could be helpful to the Court, I assume

12

you can have it by Friday, the 18th.

13

MS. GERSON:

Yes, your Honor.

14

THE COURT:

15

MR. GILMOUR:

All right.

OK.

Your Honor -- this is Mr. Gilmour -- may

16

I raise one more issue that I think the Court should be aware

17

of?

18

THE COURT:

Yes.

19

MR. GILMOUR:

In reviewing Esso's responses to

20

interrogatories in preparation for this hearing, in response to

21

interrogatory number 15, the Commonwealth requested the date

22

that MTBE was first detected in soil and groundwater at the

23

Esso 242 site.

24

to the reliability of chromatograms to determine a detection

25

and/or level of an analyte such as MTBE when MTBE was not a

Esso responded that they objected, and I quote,

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

12

1

specifically targeted chemical for the purpose of these prior

2

analyses.

3

THE COURT:

I understand.

I'm really not interested

4

any longer in the reports of 2004 and 2005 for the purpose of

5

deciding this motion to reconsider because I've already held --

6

and I have no need to change that holding -- that it raises a

7

disputed issue of fact.

8

MR. GILMOUR:

9

THE COURT:

Yes, your Honor.

Right.

You say it didn't put you on

10

notice, they say it did; that is already a fact dispute.

11

wouldn't grant them summary judgment or there is no inverse to

12

that.

13

I

I wouldn't grant them summary judgment on that argument.
The better argument now is that that's not enough.

14

You have to show when you did know.

I'm allowing the

15

supplementing of the record.

16

this time.

17

where we are at this point in time.

18

is preserved because there is a record being made today, but it

19

doesn't -- I don't need to go into that further.

They object to my allowing it at

I've explained why I'm allowing it, and that's

20

MR. GILMOUR:

21

MR. PARDO:

So your statement, again,

Yes, your Honor.

Your Honor, it is Jim Pardo.

I'm sorry to

22

keep you on the phone.

But just so I understand, the affidavit

23

that we will be getting will not just state the date but will

24

explain, understanding there are privilege issues and

25

whatnot -SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

13

1

THE COURT:

Yes, the source of the information, right.

2

Yes, which he disclosed on this call.

3

learned the information through I don't know what, testing or

4

records or both, and produced it to the Commonwealth, but

5

you'll hear it in writing.

A nontestifying expert

That's what he said.

6

MR. PARDO:

OK.

Thank you.

7

THE COURT:

OK.

Thank you, folks.

8

MR. GILMOUR:

9

(Call disconnected)

Bye-bye.

Thank you, your Honor.

10
11

-

-

-

12
13
14
15
16
17
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]