Exxon Mobil Corp. v. Albright
Exxon Mobil Corp. v. Albright
Opinion of the Court
ON MOTION FOR RECONSIDERATION
Appellees moved timely for reconsideration of the Court’s opinion filed on 26 February 2013. Although re-arguing in the
With respect to the trial court judgments for emotional distress for fear of cancer, Appellees contend first that the judgment entered in favor of Gloria Quinan should be affirmed, rather than reversed and remanded for a new trial. We disagree. In light of our analysis in Albright, the trial court’s instructions to the jury concerning the requirements for actual exposure and objective, reasonable fear of developing disease were incorrect. For example, the instructions did not require the jury to consider scientific or medical evidence in determining whether the fear of contracting cancer was objectively reasonable, see op. at 365, 71 A.3d at 68 (noting that “there is credible scientific evidence to suggest levels of exposure to benzene and MTBE at which a fear of developing cancer becomes objectively reasonable”); Faya v. Almaraz, 329 Md. 435, 455, 620 A.2d 327, 337 (1993) (determining that fear of contracting HIV was objectively reasonable only within a certain window of time based on “current credible evidence of a 95% certainty that one will test positive for the AIDS
Second, the motion argues that the fear of cancer damages claims of three additional Appellees — Amy Gumina, Rochelle Roth, and Steven Roth — should be treated similarly to how we treated Ms. Quinan’s claim because these Appellees presented expert testimony linking causally an alleged physical injury to the Exxon leak. Exxon concedes, in its answer to the motion for reconsideration, that Amy Gumina is entitled to a new trial with respect to emotional distress for fear of cancer. We agree and modify our opinion and mandate to reflect remand of her claim for a new trial. Upon revisiting the evidence admitted on behalf of Rochelle and Steven Roth, however, we determine that the evidence relating to a fear of contracting cancer was insufficient as a matter of law and does not demonstrate a physical injury capable of objective determination.
In considering those Appellees to whom Exxon concedes more clearly now that it was liable for some category of
Lastly, Appellees contend that Exxon admitted, in closing argument at trial, liability for loss of use and enjoyment damages in specified amounts to a number of Appellee families (in addition to and irrespective of any damages awarded for diminution in value of real property), and thus judg
There is one additional matter not raised in Albright by the parties, but which the Court, in good conscience, must raise on its initiative. In view of the Court’s decision in Exxon Mobil Corp. v. Ford, 433 Md. 493, 71 A.3d 144 (2013), in ruling on Exxon’s amended request for bond premium costs, to revise the Court’s mandate to provide that the parties there shall bear their own costs, parity of reasoning compels us to revise the mandate in Albright to direct that, rather than Respondents there bearing all costs on a pro rata basis, the parties shall bear their own costs.
As to all other claims and issues, the motion for reconsideration is denied.
. Appellees added a new and imaginative legal argument, based on the Takings and Due Process Clauses of the U.S. Constitution. U.S. Const, amend. V, XIV § 1. Leaning heavily on the Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010), Appellees claim that our opinion in Albright deprives them of "property rights,” to wit, the right "to pursue claims against persons who interfered with the use and enjoyment of their properties or who injured their properties by reducing the value of those properties." We are unpersuaded by Appellees’ thin argument on this score and presume that it was included to provide some federal titillation for a petition for certiorari to the U.S. Supreme Court.
. Exxon argues in its answer that the Roths did not demonstrate an objectively reasonable l'ear of contracting cancer because, although the
. As noted earlier, there are 466 plaintiffs in this case. Despite our earlier best efforts to scour the record so as to treat like-situated plaintiffs similarly, we erred in some regards. This opinion on motion for reconsideration aims to correct those oversights.
. The property owned by Hans Wilhelmsen at 13729 Jarrettsville Pike had positive well detections for MTBE. The remaining properties' wells tested positive for naphthalene and/or toluene, but were not shown to be contaminated by MTBE or benzene.
. This argument was neither briefed by either party before our opinion was filed, nor was the relevant two-page transcript excerpt included in the 19,410-page joint record extract. See ACandS, Inc. v. Asner, 344 Md. 155, 189-92, 686 A.2d 250, 266-68 (1996) (denying a motion for reconsideration in part because the appellee-movants did not reference in their brief or provide in the record extract the depositions relevant to their argument on reconsideration); Maryland Rule 8-501(c) (“The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal.”); Maryland Rule 8-504(a)(6) (requiring briefs to contain "[ajrgument in support of the party’s position on each issue”). Rather, Appellees directed our attention to these alleged concessions for the first time in the motion for reconsideration. Although this Court was apprised that Exxon conceded owing some category of compensatory damages to some of the Appellee property owners, Appellees never argued that Exxon conceded responsibility for damages for both loss of use and enjoyment and diminution in value of real property as to those Appellees specified here, despite Exxon’s argument on appeal that the Appellees generally were not entitled to both categories of damages. Thus, our denial of the motion for reconsideration on this point rests in part on Appellees’ failure to alert timely this Court to the alleged concessions. See ACandS, Inc., 344 Md. at 192, 686 A.2d at 268 (noting, on motion for reconsideration, that the "fundamental rule of appellate practice under which the appellate court has no duty independently to search through the record for error” and its resulting consequence, "that a party may lose the right to appeal on an issue by failing to indicate in that party’s brief the location in the record where the alleged error occurred,” apply equally "to the alleged cure of an error”).
. We note, however, that the concession is binding as to those Appellees to whom Exxon’s objections regarding duplicative categories of damages does not apply — those Appellees entitled to receive damages for loss of use and enjoyment of real property as outlined previously in our opinion. Thus, Exxon's concession is binding as to Appellee Van Ho. On motion for reconsideration, however, entry of judgment for Ho in the amount conceded by Exxon ($250,000) is inappropriate because her claim was remanded for a new trial not inconsistent with our opinion in Albright. Depending on the amount awarded to Ho by the fact-finder on remand, the trial court may raise permissibly the amount of damages owed by Exxon to ensure that Ho is awarded a minimum of $250,000 in compensatory damages for loss of use and enjoyment of real property.
Reference
- Full Case Name
- EXXON MOBIL CORPORATION v. Thomas M. ALBRIGHT (On Motion for Reconsideration)
- Cited By
- 19 cases
- Status
- Published