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

Filing 4392

TRANSCRIPT of Proceedings re: conference held on 3/1/2016 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, [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 4/7/2016. Redacted Transcript Deadline set for 4/18/2016. Release of Transcript Restriction set for 6/16/2016.(McGuirk, Kelly)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In re MTBE

00-CV-1898 (SAS)

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Conference
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New York, N.Y.
March 1, 2016
5:18 p.m.

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Before:

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HON. SHIRA A. SCHEINDLIN,

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District Judge

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APPEARANCES

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For Plaintiffs:

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JOHN GILMOUR, ESQ.

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For Defendants:

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JAMES PARDO, ESQ. (Liaison)
LISA GERSON, ESQ. (Liaison)
PETER CONDRON, ESQ. (Shell defendants)
ALBENIZ COURET, ESQ. (Total Petroleum Puerto Rico Corp.)
DANIEL KRAININ, ESQ. (Sunoco defendants)
ROBERT WILSON, ESQ. (Idemitsu Apollo Corporation)

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For Defendants, Observing by Phone:

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JAMES HARRIS, ESQ. (Petrobras)
JEREMIAH ANDERSON, ESQ. (Chevron defendants)
ALEJANDRO CEPEDA DIAZ, ESQ. (Sol)
PAMELA HANEBUTT, ESQ. (CITGO International Puerto Rico)
JESSICA FARLEY, ESQ. (ConocoPhillips Co., CP Chem PR Core)

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

Good afternoon, Mr. Gilmour?

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MR. GILMOUR:

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THE COURT:

Good afternoon, Mr. Pardo.

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MR. PARDO:

Good afternoon.

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THE COURT:

Ms. Gerson?

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MS. GERSON:

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THE COURT:

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MR. CONDRON:

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THE COURT:

Good afternoon, your Honor.

Good afternoon.
Mr. Condron?
Good afternoon.

Mr. Krainin?

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MR. KRAININ:

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THE COURT:

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MR. COURET:

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THE COURT:

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MR. WILSON:

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THE COURT:

Good afternoon.

Mr. Couret?
Good afternoon.
Mr. Wilson?
Good afternoon.
Okay.

Well, for those of you who are on

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the phone, I explained to the others the late arrival was due

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to a court ceremony in memory of Judge Patterson and it went

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longer than expected.

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Is there a Mr. Harris on the phone?

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MR. HARRIS:

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THE COURT:

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MR. ANDERSON:

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THE COURT:

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MR. CEPEDA:

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THE COURT:

Yes, your Honor.
Mr. Anderson?
Good afternoon, your Honor.

Mr. Diaz?
Yes.
Yes.

Is there a Mr. Diaz?

Cepeda, yes.
Ms. Hanebutt?

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

No.

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MS. HANEBUTT:

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THE COURT:

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MS. FARLEY:

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THE COURT:

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still on the phone?

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Okay.

Good afternoon.

Ms. Farley?
Good afternoon, your Honor.
And Mr. Bollar.

Is there a Mr. Bollar

No.

Getting right down to it, after this somewhat

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lengthy delay, I have two letters here.

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February 26th.

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suspect they were submitted pretty much simultaneously.

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They're both dated

I don't think they respond to one another.

MS. GERSON:

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Your Honor, it may help to just clarify

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one or two things in the letters that came in, and that's that

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defendants are not opposing inclusion of Total 1012.

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wanted to explain, that's been resolved.

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THE COURT:

That's good.

I just

In any event, there are

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these two letters.

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of defendants and there's a letter from Mr. Gilmour on behalf

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of plaintiffs.

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to be used in the suggestion of remand that both sides say is

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the next step in the Puerto Rico litigation.

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There is a letter from Mr. Pardo on behalf

And the letters dispute the terms, the language

So with one of those issues out of the way, the Total

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site, I will confess that I only read these letters once and

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figured I would just go through them again here.

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So according to plaintiff's letter -- and I hope it's

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the same as the defense letter -- the first topic is how to

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phrase whether discovery is complete.

And defendants' proposed

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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language includes the phrase, "The trial sites are being

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remanded to the District of Puerto Rico for further pretrial

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proceedings and a Phase I trial."

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language is that they're being remanded "for further

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proceedings including a Phase I trial."

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seems to be for further pretrial proceedings.

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And the plaintiff's proposed

So the missing phrase

I don't really think that there's a need to argue.

I

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will tell you what I think, and then if you feel you have to be

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heard, so be it.

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I don't see how the defendants can be anything but

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right.

There's always further pretrial proceedings.

You can't

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go to trial without pretrial proceedings.

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motions in limine, there are endless objections to exhibits

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that can be made.

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further pretrial proceedings.

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door to permanent discovery, I understand your concern, but I

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think that one has to trust that the judge understands what is

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meant here, that classic discovery is finished but there are

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times when one has to update something.

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somewhere in this letter.

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may have to update testing data or something, and because one

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needs to have the most current version.

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pretrial matters, and if I were to have gotten every pretrial

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matter out of the way to make it trial ready, I would have had

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to do, as I said, all the motions in limine and all the

There are endless

There's never a case that doesn't have
If you feel that that opens the

I gather it's

I think I read that the defendants

But there's always

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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evidentiary objections, then say to a judge:

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pick a jury.

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is dangerous, especially with this transcript.

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that I can leave open is that for example, the defendants may

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exchange updated trial site detection data and I already

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mentioned motions in limine.

Here's the package.

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MR. WILSON:

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THE COURT:

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MR. WILSON:

So I don't think the phrase
The only thing

You are?

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You're ready to

Robert Wilson for Idemitsu.
What is it, Mr. Wilson?
I'd like to raise a point about the

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completion of discovery by Idemitsu.

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back in December of 2013, your Honor granted summary judgment

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to Idemitsu based on statute of limitations grounds, and in

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reliance on that decision, Idemitsu did not participate in the

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subsequent expert discovery and motion practice that pertained

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to the Total 1012 site.

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that plaintiffs intend to appeal the summary judgment that was

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granted as to the Total 1012 site at some point.

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summary judgment is reversed, Idemitsu will be back into the

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Total 1012 trial, and so we would like to undertake expert

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discovery at that point.

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THE COURT:

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court?

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the future.

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trial judge.

As your Honor may recall,

And we understand from the submissions

If that

You mean postreversal by an appellate

Life's too short for me to see two to three years in
When and if that happens, I'm sure you'll ask the
You'll explain the history you've just explained,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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you'll say, we were suddenly successful in the First Circuit,

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it took two years to be successful, we never participated in

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expert discovery, please allow us to do so.

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will do the right thing at that time.

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to say.

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think the defense language covers the issue together with this

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transcript.

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I'm sure the judge

There's nothing for me

I want to just get the language of this down, and I

I'd like to move on to the second issue.

MR. WILSON:

Thank you, your Honor.

We just want to

make sure there's nothing in the remand order that would

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prevent us from doing that.

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THE COURT:

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MR. GILMOUR:

Thank you.

What is it, Mr. Gilmour?
Your Honor, if I may, the plaintiff's

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concern was not the phrase "pretrial."

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pretrial proceedings will have to happen.

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defendant's counsel, is posttrial proceedings or during trial.

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It's no mystery, your Honor, that we intend to seek review in

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the First Circuit.

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judgment or postentry of judgment, posttrial.

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the concern.

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THE COURT:

We concede that further
The issue, as I told

We are going to seek either a Rule 54(b)

Wait a minute.

That has been

What does that have to do

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with the language of the phrase that I read into the record?

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What would you change?

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MR. GILMOUR:

I would add "posttrial proceedings" at

the end of that.
THE COURT:

But that's obvious.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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MS. GERSON:

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THE COURT:

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And we agree.
Completely obvious.

There are always

posttrial proceedings.

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MR. GILMOUR:

Yes, your Honor, and that was our

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response when they added pretrial.

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proceedings, and when they added pretrial, we said, well,

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that's obvious, and it's included in the proceedings, and the

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response was no, we must have pretrial in the order.

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MS. GERSON:

Originally it was

Your Honor, we're fine with posttrial

included, and it's in our letter.

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THE COURT:

All right.

That seems to be resolved.

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So, well, maybe there's only one other issue.

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so-called second issue in the defense letter, does that relate

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solely to the Total 1012 sites?

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letter.

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MS. GERSON:

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THE COURT:

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MS. GERSON:

Because the

Mr. Pardo, you wrote the

Your Honor, I'll take that.

Sorry.

Okay.
The second issue was, we believe that

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there is a reference to CMO 117 in the remand order and both

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parties agree to that.

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language recognizing that after CMO 117, there was a

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stipulation, opinions by your Honor that affect the current

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state of the case as it's being sent back.

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THE COURT:

We also believe that there should be

The defendant's proposal is following

these various stipulations, motion practice, and court orders,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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"The main Phase I trials are."

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MS. GERSON:

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in dispute as the following.

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Phase I trial shall be consistent with CMO 117 and with the

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Court's above-referenced summary judgment ruling.

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might be more of the issue in dispute.

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that the district court and the panel should be aware that

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postCMO 117, there were additional decisions.

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THE COURT:

Actually, I don't know if that is as much
It continues CMO -- that the

That's covered.

I think that

But we obviously think

It says:

Following these

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various stipulations, motion practice, and court orders.

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else is my summary judgment opinion but a court order?

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MS. GERSON:

What

Well, it's a little bit different only

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because the second sentence comes later in the order and it

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addresses parties as well as claims as trial sites.

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THE COURT:

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MS. GERSON:

I'm not really following.
Sorry.

If we look at the proposed order

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attached to our letter -- and it's the very, very bottom of

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page 2, which says that the proceedings, the remanded

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proceedings, shall be consistent with CMO 117 and the

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above-referenced summary judgment rulings.

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THE COURT:

And that is --

Where is the other phrase about court

orders?
MS. GERSON:

It's two sentences, the very, very top of

page 2 and the very, very bottom of page 2.
THE COURT:

Well, such procedures shall be consistent

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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with CMO 117 and with all of the court's orders.

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MS. GERSON:

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THE COURT:

That's what we're proposing, your Honor.
I don't see the difference.

With all the

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court's orders, includes my summary judgment opinion and now

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that's clear from this transcript.

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MR. GILMOUR:

Yes, your Honor, and to be clear, as

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we've consistently said, we agree that your Honor's orders

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modified the CMO 117 as they currently stand and that that is

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the posture of the case right now.

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THE COURT:

That's fine.

So "to be consistent with

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CMO 117 and with all of the court's orders."

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Between that and this transcript, that certainly covers the

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summary judgment.

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That's it.

Now we have the last topic, according to defendants'

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letter.

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was used in New Jersey, that discovery has been substantially

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completed.

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Finally, defendants' proposal includes language that

MS. GERSON:

I believe you addressed that, the

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substantially completed discovery.

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supplementing.

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THE COURT:

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MS. GERSON:

That related to

So is there anything left?
The only thing, your Honor, is actually

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the first point in our letter, plaintiff told us on Friday they

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wanted to delete out a couple of footnotes, particularly

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footnote 3.

This was a footnote that was included similarly in
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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New Jersey and it basically states the defendant that -- for

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which claims are remaining at the trial site, it clarifies we

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believe which parties must participate in the trial.

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THE COURT:

You say "clarify the identity of the

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defendants required to participate in the remanded Phase I

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proceedings."

Where does the plaintiff's letter address this?

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MR. GILMOUR:

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THE COURT:

Your Honor, we deleted the footnote.

I know.

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your letter, did you?

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MR. GILMOUR:

You must have written about it in

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No, your Honor, because I was not aware

that this was an issue.

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If I may clarify, your Honor, this was raised for the

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first time after defendants took a "take it or leave it" stance

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on the Total 1012 site until this past Friday, which you may

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remember, your Honor, was three days past the deadline you gave

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us to advise the Court of whether we had made any progress, and

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our letters were due that same afternoon.

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in the afternoon and said:

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issues?

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There was a discussion about Total 1012 which required me to

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talk to another defense counsel and then get back to Ms. Gerson

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in the middle of the afternoon, at which time she told me for

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the first time ever that defendants no longer were opposed to

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Total 1012 going back, and up until that point defendants had

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refused to address any of this language because of all bore on

Ms. Gerson called me

Do you want to discuss these

And I said of course.

I'm always open to discussion.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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the Total 1012 site, from our perspective.

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know, we have laid behind the law or not addressed it is very

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concerning, which some of the first language in their letter

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says that we never --

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THE COURT:

So to say that, you

Well, I don't care about that.

I just

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care about hammering out the language, signing the document,

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and sending it out the door.

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is a good guy or bad guy or somewhere in between.

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to finish.

I don't really want to know who
I just want

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So in footnote 3, which apparently clarifies the

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identity of the defendants required to participate in the

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remanded Phase I proceedings, what's the problem with it?

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MR. GILMOUR:

It leaves out the dismissed defendants

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for whom we are going to appeal, who need to go back with the

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sites.

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THE COURT:

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MR. GILMOUR:

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Oh.

Only if you ever win on the appeal.

And if those defendants want to

participate in the appeal, yes, your Honor, I agree.
THE COURT:

So now it says:

"Footnote 3.

Due to

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settlements, stipulations, and rulings that occurred after

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entry of CMO 117, the only defendants whose liability, if any,

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will be determined at and that are required to participate in

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the remanded Phase I proceedings are:"

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that, you could add a sentence, "If at any time there is a

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reversal and other defendants who were dismissed are

I suppose at the end of

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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reinstated, that will be addressed when and if it happens."

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MR. GILMOUR:
toward the language.

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THE COURT:
transcript.

That's the language.

MR. GILMOUR:

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THE COURT:

Yes, your Honor.

If you need to preserve it, go ahead and

say it, but I think we're done.

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MS. GERSON:

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THE COURT:

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Get it out of the

That's it.

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Yes, your Honor, and I'm happy to work

Thank you, your Honor.
So please, finalize this order, I sign,

and you are off and running for a trial.

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ALL COUNSEL:

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THE COURT:

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the Court, please?

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Maybe.

Thank you, your Honor.

Oh.

When can you get this submitted to

rulings.

I mean, with this transcript and these

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MR. PARDO:

Friday.

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THE COURT:

I agree with you, Mr. Pardo.

Close of

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business Friday.

Just write it up, and don't tell me you can't

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agree on the language, because it's clear enough now.

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All right?

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ALL COUNSEL:

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(Adjourned)

Thank you.

Sorry for the delay.

Thank you, your Honor.

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]