Orange County Water District v. Unocal Corp.

Filing 427

MEMORANDUM OPINION AND ORDER re: 418 MOTION to Strike Document No. 379 the Declaration of Stephen Wheatcraft Submitted in Opposition to Defendants' Motions for Summary Judgment filed by EXXON MOBIL CORPORATION: For the foregoing reasons, defendants' motion to strike is DENIED. The Clerk of the Court is directed to close the motion (Doc. No. 418). (Signed by Judge Shira A. Scheindlin on 9/22/2014) ***As per instructions from chambers, filed in 04cv4968 only. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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

This document relates to:

MEMORANDUM OPINION
AND ORDER
Master File No. 1:00-1898
MDL 1358 (SAS)
M21-88

Orange County Water District v. Unocal
Corporation, et al., 04 Civ. 4968

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SHIRA A. SCHEINDLIN, U.S.D.J.:
On June 6, 2014, certain defendants in this action moved for partial
summary judgment on claims brought by the Orange County Water District ("the
District") at four designated focus trial sites, alleging that the District suffered no
compensable injury or cognizable damages at those trial sites (the "Trial Sites
Motion"). 1 Also on June 6, 2014, all defendants moved for summary judgment on
various grounds on all of the District's remaining claims (the "Omnibus Motion"). 2
See generally Memorandum of Law of Defendants Atlantic Richfield
Company, BP West Coast Products LLC, BP Products North America, Inc., Arco
Chemical Company, Lyondell Chemical Company, Shell Oil Company, Equilon
Enterprises LLC, Texaco Refining and Marketing Inc., Union Oil Company of
California, Valero Marketing and Supply Company, Valero Refining
Company-California, and Ultramar Inc. in Support of Their Motion for Summary
Judgment Due to Lack of Injury and Damages at Certain Trial Sites.
2

See generally Memorandum of Points and Authorities in Support of
Defendants' Motion for Summary Judgment. Several defendants who joined in

I have yet to rule on either of these two motions. In opposing these motions, the
District relies on a declaration by its fate and transport modeling expert, Dr.
Stephen Wheatcraft. 3 Defendants now move to strike Dr. Wheatcraft's declaration,
arguing that I should ignore the declaration for summary judgment purposes
because it contradicts Dr. Wheatcraft's prior deposition testimony. 4 For the
following reasons, defendants' motion to strike is denied.
Defendants contend that I must disregard Dr. Wheatcraft's declaration
because it creates a "sham issue of fact." The Second Circuit has emphasized that
"a sham issue of fact exists only when the contradictions in an expert witness's

one or both of these motions are no longer parties to the District's action pursuant
to my September 16, 2014 order granting summary judgment on res judicata
grounds as to these defendants, barring the District's claims against them.
Separately, in response to recent letters exchanged between counsel for the District
and counsel for defendant Lyondell Chemical Company, I clarify here that the
District's claims against Lyondell, with which the District purports to have reached
a settlement, remain active in this matter and subject to dismissal on summary
judgment until the formal settlement is completed and approved.
3

See generally 7/21/14 Declaration of Stephen W. Wheatcraft, Ph.D.,
expert witness for the District, in Support of Plaintiff's Opposition to Motion for
Summary Judgment ("Wheatcraft Deel.").
4

See generally Defendants' Objection to and Motion to Strike the
Declaration of Stephen Wheatcraft Submitted in Opposition to Defendants'
Motions for Summary Judgment ("Mot. to Strike").

2

testimony are inescapable and unequivocal in nature." 5 Courts strike sham
affidavits or declarations because aa deposition of a witness, subject to crossexamination, is generally more reliable than an affidavit [or declaration] submitted
to oppose a summary judgment motion." 6
On January 16 and 17, 2012, Dr. Wheatcraft gave sworn deposition
testimony in this matter. 7 During those two days, he answered many questions
regarding his ability to trace MTBE releases from specific stations to production
wells. 8 Dr. Wheatcraft stressed that he and his team had not "performed any
analysis to look at any individual station as to ... what the pathway is from that

5

In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013)
cert. denied, 133 S. Ct. 2783 (2013) (citation omitted).
6

Hayes v. New York City Dep't ofCorrs., 84 F. 3d 614, 619 (2d Cir.
1996) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d
Cir. 1969)).
7

See generally 1/16/14-1/17/14 Deposition of Stephen W. Wheatcraft,
Ph.D., expert witness for the District ("Wheatcraft Dep."), Ex. 73 to 6/6/14
Declaration of Whitney Jones Roy, counsel for defendants, in Support of
Defendants' Motion for Summary Judgment ("Roy Deel."); Wheatcraft Dep., Exs.
3 and 4 to 8/25114 Declaration of Michael Axline, counsel for the District, in
Support of Plaintiff Orange County Water District's Opposition to Defendants'
Objection to and Motion to Strike the Declaration of Stephen Wheatcraft
Submitted in Opposition to Defendants' Motions for Summary Judgment ("Axline
Deel.") (defendants and the District each submitted separate collections of excerpts
from Dr. Wheatcraft's two days of sworn deposition testimony).
8

See generally Wheatcraft Dep., Ex. 73 to Roy Deel.
3

station to any ultimate well." 9 However, Dr. Wheatcraft also stated repeatedly
throughout his deposition that he created his fate and transport model using
information regarding MTBE releases from each of the trial sites at issue in this
action - and only from those trial sites. 10 In essence, Dr. Wheatcraft represented
consistently that information regarding the MTBE releases at all of the trial sites,
including those at issue in the Trial Sites Motion, factored into his model, which
posits that releases from all of the stations contributed to form an MTBE mass
"moving from these stations ... towards the wells and, in some cases, having
reached the wells." 11
Dr. Wheatcraft's declaration is not an "inescapable and unequivocal"
contradiction of his deposition testimony. 12 In his declaration, he states:

9

Id. at 405:19-405:21 (emphasis added). Dr. Wheatcraft gave nearly
identical responses to similar questions throughout his deposition. See generally
id.; Wheatcraft Dep., Ex. 4 to Axline Deel.
10

See, e.g., Wheatcraft Dep., Ex. 3 to Axline Deel., at 120:18-120:22
("The mass that was introduced in our model came from those 34 sites and the
monitoring - and the concentrations from the monitoring wells on and around
those sites. And those were the only ones that we considered."); id. at 127:10127:22 (stating that Dr. Wheatcraft "examined data for each and every one" of the
sites to generate "42,000 individual concentration data points," which were
"directly used in terms of coming up with a mass - mass loading calculations").
II

Wheatcraft Dep., Ex. 4 to Axline Deel., at 374:19-374:21.

12

In re Fosamax, 707 F.3d at 194.
4

A separate MTBE source term for each of the focus plume
stations was added to the model at the location of the
station. The source term for each focus plume station was
calculated using actual data from MTBE detections in
monitoring wells located at or associated with each
individual focus plume station .... The MTBE source term
thus represents the MTBE released to groundwater from
each individual focus plume station through the aquifer to
production wells within the District's service area, although
the model does not isolate each station. 13
Defendants read this paragraph, and several others in Dr. Wheatcraft's declaration,
to indicate that Dr. Wheatcraft could track MTBE from individual stations to
production wells, an ability defendants allege Dr. Wheatcraft disclaimed in his
deposition. 14 Defendants' argument fails, though, because Dr. Wheatcraft' s
declaration does not directly contradict his deposition testimony. His declaration
states that his model does not isolate each station, and at his deposition he
described his method of incorporating information about releases from all of the
trial sites into his model. To be sure, Dr. Wheatcraft's declaration is tailored to
defendants' summary judgment motions. However, the declaration does not flatly
contradict anything that Dr. Wheatcraft said at his deposition. Accordingly, the
declaration does not create a sham issue of fact. Whether the alleged issue of

13

Wheatcraft Deel. ,-i 4 (emphasis added).

14

See generally Mot. to Strike.
5

material fact is sufficient to defeat defendants' summary judgment motions will be
addressed in a separate opinion.
For the foregoing reasons, defendants' motion to strike is DENIED.
The Clerk of the Court is directed to close the motion (Doc. No. 418).

Dated:

New York, New York
September 22, 2014

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- Appearances Liaison Counsel for Plaintiffs:

Liaison Counsel for Defendants:

Robin Greenwald, Esq.
Robert Gordon, Esq.
Weitz & Luxenberg, P.C.
180 Maiden Lane
New York, NY 10038
[phone]

Peter John Sacripanti, Esq.
James A. Pardo, Esq.
McDermott Will & Emery LLP
50 Rockefeller Plaza, 11th Floor
New York, NY 10020
[phone]

Counsel for the District:

Counsel for Defendants:

Michael Axline, Esq.
Miller, Axline, & Sawyer
1050 Fulton Avenue, Suite 10
Sacramento, CA 95825
[phone]

Jeffrey J. Parker, Esq.
Whitney Jones Roy, Esq.
Sheppard, Mullin, Richter & Hampton
LLP
333 South Hope Street, 48 1h Floor
Los Angeles, CA 90071
[phone]

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