UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Patrick Short, et al.

v. Civ. No. 16-cv-204-JL Opinion No.

Amerada Hess Corp. et al.

MEMORANDUM ORDER

Whether the plaintiffs in this environmental-contamination

action may take it past the summary judgment stage depends on

whether (1) they have demonstrated standing to sue, see U.S.

Const. art. III, § 2, and (2) they filed this action within

New Hampshire’s three-year statute of limitations, accounting

for the discovery rule, see

.

Nineteen individual plaintiffs commenced this action in

2016, alleging that an underground gasoline leak discovered in

1990 in Swanzey, New Hampshire, injured their persons and

property.1 The gasoline contained methyl-tertiary butyl ether

(“MTBE”), an additive that New Hampshire has banned since 2007.

The defendants are gasoline manufacturers and suppliers and the

current and former owners of the gas station from which the leak

1 Four of those plaintiffs have dismissed their claims and the plaintiffs do not oppose the defendants’ motion to dismiss plaintiff Robert LaClair’s claims (doc. no. 48), which the court accordingly grants. emanated. The court’s subject matter jurisdiction over this

removed case is based on diversity,

(a), 1446,

and the Energy Policy Act of 2005, see

note

(Claims Filed After August 8, 2005),

Title XV,

§ 1503, Aug. 8, 2005 (“[c]laims and legal actions filed after

[August 8, 2005] related to allegations involving actual or

threatened contamination of [MTBE] may be removed to the

appropriate United States district court.”).

The 14 plaintiffs remaining in this action assert products-

liability and negligence claims arising from alleged injuries to

their persons.2 Ten plaintiffs also assert nuisance and trespass

claims, arguing that the value of their real property has been

diminished by the presence of MTBE.3 And all plaintiffs assert a

claim under New Hampshire’s Consumer Protection Act,

-A, contending that the defendants engaged in

unfair and deceptive business practices. The defendants move

for summary judgment, see Fed. R. Civ. P. 56, arguing that all

2 Specifically, plaintiffs Joseph Arsenault, David Bashaw, Jr., Darren Bashaw, Armond Bedard, Marion Bedard, Julie Bedard, Teresa Chandler, Nicole Cote (for the benefit of Stephanie Cote), Tammy Demond, Christine House, Connie Merrill, Gale Shelley, Patrick Short, and Robert Symonds. 3 Specifically, plaintiffs Joseph Arsenault, David Bashaw, Jr., Armond Bedard, Marion Bedard, Teresa Chandler, Tammy Demond, Christine House, Gale Shelley, Patrick Short, and Robert Symonds.

2 of the plaintiffs’ claims except one4 are barred either for lack

of standing or by the applicable statute of limitations.5

Having reviewed the parties’ filings and exhibits,

including supplemental filings after oral argument, the court

grants the defendant’s motion in large part and denies it in

part. Specifically, all plaintiffs’ claims under the New

Hampshire Consumer Protection Act are barred by its statute of

limitations. And all plaintiffs except Teresa Chandler have

failed to carry their burdens of demonstrating standing or that

the discovery rule prevents the statute of limitations from

barring their tort claims. Accordingly, the court grants the

defendants’ motions as to all plaintiffs’ claims except

Chandler’s tort claims.

Applicable legal standard

“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

4 The defendants “do not seek summary judgment on Chandler’s property damage claim” through this motion. Defendants’ Supp. Mem. (doc. no. 72) at 46. 5 The court previously denied without prejudice the defendants’ motion to dismiss plaintiffs’ claims. See Endorsed Order, (Sept. 27, 2017). That motion asserted several grounds for dismissal, including the statute of limitations and plaintiffs’ standing to sue. The parties subsequently agreed to address those issues through summary judgment after a period of limited discovery. See Stipulations (doc. nos. 32, 33).

3 Civ. P. 56(a). The moving party must “assert the absence of a

genuine issue of material fact and then support that assertion

by affidavits, admissions, or other materials of evidentiary

quality.” Mulvihill v. Top-Flite Golf Co.,

(1st

Cir. 2003). “A genuine issue is one that could be resolved in

favor of either party, and a material fact is one that has the

potential of affecting the outcome of the case.” Vera v.

McHugh,

(1st Cir. 2010) (internal quotation

omitted).

Where, as here, the plaintiffs bear the ultimate burden of

proof, once the movant has made the requisite showing, they can

no longer “rely on an absence of competent evidence, but must

affirmatively point to specific facts that demonstrate the

existence of an authentic dispute.” Torres–Martínez v. P.R.

Dep’t of Corr.,

(1st Cir. 2007). That is, the

plaintiffs “‘may not rest upon the mere allegations or denials

of [the] pleading, but must set forth specific facts showing

that there is a genuine issue’ of material fact as to each issue

upon which [they] would bear the ultimate burden of proof at

trial.” Santiago-Ramos v. Centennial P.R. Wireless Corp.,

, 52–53 (1st Cir. 2000) (quoting Anderson v. Liberty

Lobby, Inc.,

(1986)).

As it is obligated to do in the summary judgment context,

the court “rehearse[s] the facts in the light most favorable to

4 the nonmoving party (here, the plaintiff[s]), consistent with

record support,” and gives them “the benefit of all reasonable

inferences that those facts will bear.” Noviello v. City of

Boston,

(1st Cir. 2005) (internal citation

omitted).

The following background takes this approach, drawing on

the parties’ recitations of undisputed, accepted facts except

where noted. Before moving on to that recitation, the court

observes that it was hampered in this endeavor by the

plaintiffs’ failure to comply with Local Rule 56.1, which

requires that “[a] memorandum in opposition to a summary

judgment motion shall incorporate a short and concise statement

of material facts, supported by appropriate record citations, as

to which the adverse party contends a genuine dispute exists so

as to require a trial.” LR 56.1(b). Failure to comply with

this requirement and properly oppose a motion for summary

judgment, as the plaintiffs have failed to, may result in “[a]ll

properly supported material facts set forth in the moving

party’s factual statement [being] deemed admitted . . . .”

In their opposition, the plaintiffs specifically refer to

only four of the defendants’ listed facts and state their

general disagreement with defendants’ characterizations of

5 others.6 In addition, plaintiffs’ two-page statement of facts

contains no record citations, as LR 56.1(b) requires.7 The

plaintiffs’ supplemental memorandum8 illuminates a few disputes

left opaque by their objection, but generally fails to remedy

the error because, in large part, the plaintiffs merely repeat

their original opposition.9

The Local Rules are “aimed at enabling a district court to

adjudicate a summary judgment motion without endless rummaging

through a plethoric record.” Puerto Rico Am. Ins. Co. v.

Rivera–Vázquez,

, 131–32 (1st Cir. 2010). The court

is loath to engage in “the sort of archeological dig that [such]

anti-ferret rules are designed to prevent[,]”

, and

will therefore “deem[ ] admitted” all “properly supported

material facts set forth in [the defendants’] factual

statement.” LR 56.1(b); Fed. R. Civ. P. 56(e)(2). But any such

admissions do not automatically entitle the defendants to

summary judgment. “[T]he district court is still obliged to

consider the motion on its merits, in light of the record as

6 Plaintiffs’ Obj. (doc. no. 60-1) at 4. 7 See id. at 3-4. 8 Plaintiffs’ Supp. Mem. (doc. no. 71). 9 E.g., id. at 14-15, 17 (repeating verbatim arguments concerning Armond and Marion Bedard and Gale Shelley); id. at 19 (repeating largely verbatim arguments concerning Darren Bashaw).

6 constituted, in order to determine whether judgment would be

legally appropriate.” Aguiar–Carrasquillo v. Agosto–Alicea,

(1st Cir. 2006) (quotation and citation omitted).

Background

The following facts are undisputed. In May 1990, gasoline

contamination was discovered in two catch basins located on

Route 10 in Swanzey, New Hampshire, adjacent to a gas station

and mini mart. Approximately 14 inches of gasoline-contaminated

water was observed in that catch basin; another catch basin

across Route 10 was also impacted. After an investigation by

the New Hampshire Department of Environmental Services

(“NH DES”) and further testing, three underground storage tanks

were removed from the gas station.

Since 1990, DES has overseen and approved remediation and

testing of the gas station location. GeoInsight, the gas

station’s primary environmental consultant, provided detailed

reports summarizing site activity to NH DES. The reports have

been publicly available on the NH DES website. The gas station

work required that certain nearby water supplies be regularly

tested under NH DES supervision, including those serving several

of the plaintiffs. These residential water supply test results

were also given to the residents and are available to the

public.

7 In 2003, the State of New Hampshire sued several oil

companies for MTBE contamination. The state settled with some

of the defendants for $35 million and a jury awarded the state

$236 million in damages in April 2013. See State v. Exxon,

(2015). The State of New Hampshire banned the sale of

gasoline containing MTBE in 2007. See

-A:19 (MTBE ban as presently codified);

-G:12 (MTBE ban as originally enacted; repealed 2015).

The plaintiffs are current or former Swanzey residents who

allege their health and property were impacted by MTBE resulting

from the underground gasoline leaks. They have sued CITGO

Petroleum Corporation (“CITGO”) and ExxonMobil Corporation and

ExxonMobil Oil Corporation (collectively, “ExxonMobil”) as

manufacturers, marketers, or suppliers of gasoline containing

MTBE, which plaintiffs allege has damaged their water supplies,

caused them to suffer personal injuries, and diminished their

property values. The plaintiffs also sued defendants Shri

Ganesh Corporation, Joseph Hart, and Peterborough Oil Company in

their alleged capacities as the current and former gas station

owners.

The defendants initially moved to dismiss the plaintiffs’

complaint, largely on the same grounds raised in their summary

judgment motion. With agreement from the parties, the court

denied those motions without prejudice and allowed a period of

8 discovery followed by summary judgment motions limited to those

issues.10 The court reviewed the parties’ filings and exhibits

and held oral argument on the defendants’ motions on

September 25, 2018.

Following that argument, the court ordered the parties to

supplement their submissions with, among other things, a clear

statement of which of the defendants’ arguments applied to which

claims brought by which plaintiffs.11 The court also permitted

the parties to file additional affidavits or deposition

testimony that, as the parties represented at oral argument,

existed and were relevant to the parties’ arguments, but had not

yet been made part of the summary judgment record.12

Analysis

All 14 plaintiffs assert three claims arising out of

alleged personal injuries suffered as a result of MTBE

contamination: (1) products liability for defective design

(Count I); (2) products liability for failure to warn

10 See September 27, 2017 Order; Stipulations (doc. nos. 32, 33). 11September 27, 2018 Procedural Order (doc. no. 68) at 2. It became clear at the summary judgment hearing that plaintiffs’ standing and the defendants’ statute-of-limitations defenses turned in part on the nature of the plaintiffs’ claims. The court ordered this briefing after the summary judgment hearing so that the plaintiffs would not be prejudiced by their counsel’s unfortunately imprecise pleading and briefing. 12 Id. at 1.

9 (Count II); and (3) negligence (Count VI). Ten of those

plaintiffs also assert three claims arising out of alleged

damage to their property: (1) nuisance (Count III);

(2) trespass (Count V); and (3) nuisance and trespass against

the current and former gas station owners (Count VIII).

Finally, all 14 plaintiffs bring a claim under New Hampshire’s

Consumer Protection Act,

-A:2

(Count VII).13

The defendants raise the same arguments with respect to

each of these claims: Either the plaintiffs have failed to

demonstrate standing to bring the claim in question or the claim

is barred by the statute of limitations. The court addresses

the defendants’ arguments separately as to each category of

claims.

A. Property-damage claims (Counts III, V, VIII)

Ten of the plaintiffs assert, in three counts, the common-

law claims of trespass and nuisance based on damage to their

property through contamination by MTBE. Though the complaint

lacks any indication of which plaintiffs assert which counts, in

their supplemental memorandum ordered by the court the

13The plaintiffs also brought a claim asserting the defendants’ strict liability under

-A and 146-G (Count IV), but have withdrawn that claim. See Plaintiffs’ Supp. Mem. (doc. no. 71) at 3 (characterizing Count IV as “Withdrawn by Plaintiffs”).

10 plaintiffs clarified that only Arsenault, David Bashaw, Jr.,

Armond and Marion Bedard, Chandler, Demond, House, Shelley,

Short, and Symonds assert these property-based claims.14 The

defendants contend, and the court agrees, that Arsenault,

Demond, House, Shelley, and Symonds lack standing to bring them

and that, though David Bashaw, the Bedards, and Short have

standing, they are barred by the statute of limitations.15 The

defendants do not challenge Chandler’s property-based claims at

this posture.16

1. Property-based tort claims

As mentioned above, the plaintiffs bring two property-

related tort claims: trespass and nuisance. Trespass is “an

intentional invasion of the property of another.” Moulton v.

Groveton Papers Co.,

(1972). Drawing on the

Restatement (Second) of Torts, New Hampshire imposes trespass

liability on a person,

irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove

14See Plaintiffs’ Supp. Mem. (doc. no. 71) at 8-25 (charting plaintiffs’ claims). 15See Defendants’ Supp. Mem. (doc. no. 72) at 36-53; Supp. Reply Appx. A (doc. no. 75-1) (summarizing challenges). 16 Defendants’ Supp. Mem. (doc. no. 72) at 46.

11 from the land a thing which he is under a duty to remove.

Case v. St. Mary’s Bank,

(2013) (quoting

Restatement (Second) of Torts § 158 (1965)).

Where trespass involves an invasion of another’s property,

nuisance constitutes “an activity which results in an

unreasonable interference with the use and enjoyment of

another’s property.” Robie v. Lillis,

(1972).

“A nuisance arises from the use of property, either actively or

passively, in an unreasonable manner.” Shea v. City of

Portsmouth,

(1953). “Liability is imposed only

in those cases where the harm or risk to one is greater than he

ought to be required to bear under the circumstances.” Robie,

(quoting Restatement (Second) of Torts, § 822,

Comment g at 27-28 (Tent. Draft No. 17, 1971)). “This

requirement of a finding of unreasonableness is the crux of the

law of nuisance.” Id. For example, “[e]ven the storage of

gasoline and oil in large quantities constitutes a nuisance only

when the hazard to adjoining property owners is substantial.”

Id. (citing Hilliard v. Shuff,

(La. 1971)).

Damages in both trespass and nuisance actions “are measured

primarily by the difference between the value of the real estate

before and after the defendant’s wrong was committed.” Delay

Mfg. Co. v. Carey,

(1940). See also Soucy v.

12 Royal,

(1976) (damages in trespass and

nuisance are “determined by the difference between the value of

the property with and without the trespass and nuisance”).

2. Standing

“Although the Constitution does not fully explain what is

meant by ‘[t]he judicial Power of the United States,’ Art. III,

§ 1, it does specify that this power extends only to ‘Cases’ and

‘Controversies,’ Art. III, § 2.” Spokeo, Inc. v. Robins,

(2016). Rooted in the “case and controversy”

requirement, the standing doctrine “limits the category of

litigants empowered to maintain a lawsuit in federal court to

seek redress for a legal wrong.”

“The standing inquiry is

both plaintiff-specific and claim-specific. Thus, a reviewing

court must determine whether each particular plaintiff is

entitled to have a federal court adjudicate each particular

claim that he asserts.” Pagan v. Calderon,

(1st

Cir. 2006).

To satisfy the standing requirement, “a plaintiff must

establish each part of a familiar triad: injury, causation, and

redressability.” Katz v. Pershing, LLC,

(1st

Cir. 2012). That is, “[t]he plaintiff must have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

13 by a favorable judicial decision.” Spokeo,

(citing Lujan v. Defenders of Wildlife,

).

“The plaintiff, as the party invoking federal jurisdiction,

bears the burden of establishing these elements.”

“[E]ach

element must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive stages

of the litigation.” Katz,

(quoting Defenders of

Wildlife,

). So, “[i]n response to a summary

judgment motion, . . . the plaintiff can no longer rest on . . .

‘mere allegations,’ but must ‘set forth’ by affidavit or other

evidence ‘specific facts,’ which for purposes of the summary

judgment motion will be taken to be true.” Defenders of

Wildlife,

(quoting Fed. R. Civ. P. 56(e)).

The defendants contend that five of the plaintiffs lack

standing to bring their property-based claims because they

cannot demonstrate the requisite injury-in-fact without evidence

that MTBE has been detected on their property.17 Such injury “is

defined as ‘an invasion of a legally protected interest which is

(a) concrete and particularized; and (b) actual or imminent, not

conjectural or hypothetical.’” Katz,

(quoting

Defenders of Wildlife,

). “[C]oncreteness and

17 Defendants’ Supp. Mem. (doc. no. 72) at 11-12.

14 particularization are distinct requirements. An injury is

concrete only if it ‘actually exist[s].’” Hochendoner v.

Genzyme Corp.,

(1st Cir. 2016) (quoting

Spokeo,

). And particularization requires that

a “plaintiff must adduce facts demonstrating that he himself is

adversely affected” by the defendant’s allegedly injurious

conduct. Id. at 732.

a) Individual water supplies (Demond, House, Shelley, and Symonds)

Plaintiffs Demond, House, Shelley, and Symonds each draw

their water from wells on their own (or a next-door neighbor’s)

property. To demonstrate an injury to their property for

standing purposes, in this context, the plaintiffs must, “by

affidavit or other evidence,” set forth facts from which the

court may infer that, at the very least, MTBE invaded their

property (trespass) or interfered with the use of that property

(nuisance). See Defenders of Wildlife,

. They

have not done so here.

No MTBE has been detected in water drawn from these

plaintiffs’ wells. Specifically, the record contains no

evidence that their water has ever tested positive for MTBE.

Demond, Shelley, and Symonds have submitted no evidence of any

testing performed on the water at their homes. House’s water

15 consistently tested negative for MTBE between 2011 and 2017.18

These plaintiffs therefore have not satisfied the injury-in-fact

element of the standing analysis.

Despite the lack of detection in their own water, both

House and Demond argue that positive MTBE tests from neighboring

properties demonstrate injury to their own property.

Specifically, House claims that her neighbor’s water supply

tested positive in 2011.19 And Demond contends that “[t]he well

next door” tested positive in 2011.20 But, “the plaintiff[s]

generally must assert [their] own legal rights and interests,

and cannot rest [their] claim to relief on the legal rights or

interests of third parties.” Warth v. Seldin,

(1975). They must, instead “adduce facts demonstrating that

[they themselves are] adversely affected” by the defendant’s

allegedly injurious conduct. Hochendoner,

. Thus,

in this case, invasion of another’s land does not confer

18 Defendants’ Mem. (doc. no. 49-1) ¶¶ 103-04. 19 See Plaintiffs’ Supp. Mem. (doc. no. 71) at 24. 20Id. at 12. As the defendants correctly observe, though Demond does share a well with her next-door neighbor, the documents plaintiffs cite as reflecting a positive test in “the well next door” do not relate to a neighboring property. Instead, they refer to a home over half of a mile from Demond’s property and considerably closer to the gas station. See Plaintiffs’ Exs. 30-32 (doc. nos. 73-5, 73-6, 73-7); Defendants’ Ex. 98 (doc. no. 63-4). The record contains no evidence that Demond’s own water supply — or her abutting neighbor’s well — ever tested positive for MTBE.

16 standing on House and Demond to bring trespass claims. And no

evidence in the record suggests interference with enjoyment of

their properties based on intrusion into another’s water supply.

This is particularly true in light of the damage that the

plaintiffs allege they suffer as a result of the intrusion of

MTBE on their land. Specifically, based on an unsigned, undated

“affidavit” from Pete Duval, a licensed real estate agent,21 the

plaintiffs contend that they would “have to disclose MTBE was

found in the drinking water” when selling their homes, leading

to lower property values.22 They contend, as a result, that

“properties that have a history of exposure will . . . more

likely than not sell for less money than comparable properties

that do not have such problems.”23 Demond’s, House’s, Shelley’s,

and Symonds’ properties have no such history of exposure.

21Plaintiffs’ Ex. 57 (doc. no. 73-32). Even if Duval’s “affidavit” supported the plaintiffs’ claim of injury, an unsigned, undated statement that “provides no basis for [the affiant’s] personal knowledge of the facts supporting his statements” is not competent evidence at summary judgment. Cordero-Soto v. Island Fin., Inc.,

(1st Cir. 2005); see also Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). 22Plaintiffs’ Supp. Mem. (doc. no. 71) at 13. The plaintiffs include this allegation under the heading “Facts As To All Property Damage Plaintiffs.” See id. at 12. 23 Id. at 13 (citing Plaintiffs’ Ex. 57 (doc. no. 73-32) ¶ 12).

17 Absent evidence of such exposure, these plaintiffs have failed

to establish injury-in-fact.24

b) Pine Grove water supply (Arsenault)

Unlike the plaintiffs with individual water supplies,

Joseph Arsenault owns a mobile home in the Pine Grove Mobile

Home Park. “Pine Grove operates a community public water system

for its residents” and is “required by law to provide customers

with reports describing contaminants,” such as MTBE, “detected

in the water supply.”25 The undisputed record evidence shows

that MTBE was never detected in Pine Grove’s community water

supply during the time Arsenault lived there,26 from 1980 to 1984

and from 2000 to the present.27

24They further contend that “it is well-known in the Swanzey, New Hampshire market that many properties have” problems with MTBE. Plaintiffs’ Supp. Mem. (doc. no. 71) at 13 (quoting Plaintiffs’ Ex. 57 (doc. no. 73-32) ¶ 13). Absent reference to their specific properties, this statement does not support particularized injury for any of the plaintiffs in this action. Nor does it appear based on the affiant’s personal knowledge. 25 Defendants’ Mem. (doc. no. 49-1) ¶¶ 71-72. 26 See Crosby Decl. (doc. no. 54) ¶ 7. 27Defendants’ Mem. (doc. no. 49-1) ¶ 78. The plaintiffs suggest, without evidentiary basis, that Arsenault’s first sojourn at Pine Grove lasted from 1980 to 1994. See Plaintiffs’ Supp. Mem. (doc. no. 71) at 23. In his deposition, however, Arsenault explained that he first lived at Pine Grove “[j]ust under four years,” until 1984. Defendants’ Ex. 42 (doc. no. 51- 6) at 26-28.

18 The plaintiffs rely instead on evidence that MTBE was

detected in two monitoring wells in Pine Grove.28 Specifically,

MTBE was detected in Monitoring Well 6 in 1990, 1991, 1992,

2003, and 2004, and in Monitoring Well 10 in 1991, 1992, 2002,

2003, and 2004.29 But Monitoring Well 7, which appears to be

that located closest to (if not on) Arsenault’s lot,30 never

tested positive for MTBE.31

The plaintiffs also rely on an unsigned, undated

“affidavit” from “professional engineer” Ellen Moyer to

establish MTBE contamination of property and water in Pine

Grove.32 Again, however, the court cannot rely on an unsworn

statement at the summary judgment stage. See Cordero-Soto,

; Fed. R. Civ. P. 56(c)(4).

Arsenault has therefore failed to establish more than mere

conjecture that MTBE has invaded the land under his mobile home;

and the undisputed record evidence shows that MTBE has never

28 See Plaintiffs’ Supp. Mem. (doc. no. 71) at 23-24. 29 See Plaintiffs’ Ex. 72 (doc. no. 73-47) at 24. 30See Plaintiffs’ Ex. 46 (doc. no. 73-21) (map of Pine Grove, showing Arsenault’s property at lot number 3); Plaintiffs’ Ex. 48 (doc. no. 73-23) (showing location of monitoring wells). 31 See Plaintiffs’ Ex. 72 (doc. no. 73-47) at 24. 32 Plaintiffs’ Ex. 44 (doc. no. 73-19).

19 been found in his water supply. Accordingly, he has not

demonstrated the injury-in—fact element of standing.

c) Plaintiffs’ aquifer-based theory

All five of these plaintiffs, as well as the personal-

injury plaintiffs discussed infra, attempt to establish standing

by arguing that MTBE contamination of an aquifer underlying

Swanzey must necessarily have injured each of them.

Specifically, the plaintiffs argue that they all “get their

source water from the same aquifer in the area of Swanzey

involved,”33 and that “[t]he mere detections of some MTBE, no

matter the level,” within the aquifer, “illustrates that at some

point MTBE leaked into the water supply and that at some point

the levels could have been much higher and have since been

diluted.”34 That is, they contend, the detection of MTBE at any

level anywhere in the aquifer from which they all draw their

water necessarily means contamination of their own water supply

at some point.

But the plaintiffs have offered no evidence in support of

this leap in logic. This theoretical contamination of property

where no MTBE has been detected therefore fails to satisfy the

standing requirement that the plaintiffs’ injury must be

33 Plaintiffs’ Obj. (doc. no. 60-1) at 3. 34 Id. at 8.

20 “concrete” and “particularized” — that is, it must “actually

exist” and the individual plaintiff must be “adversely

affected.” Hochendoner,

.

Even if aquifer-wide contamination constituted a non-

conjectural, particularized injury, the plaintiffs have not

adduced admissible evidence from which the court could infer

aquifer-wide contamination or the plaintiffs’ injury as a

result. They rely first on a report from Granite State Rural

Water Association, which describes the gas leak and notes that

monitoring wells observed MTBE contamination in some places.35

But record evidence, however, also shows that other monitoring

wells did not detect MTBE contamination.36 And nothing in the

report, generally, supports the inference that MBTE contaminated

the entire aquifer, even assuming that Swanzey has only one.37

35 Plaintiffs’ Ex. 7 (doc. no. 71-8). 36E.g., Plaintiffs’ Ex. 72 (doc. no. 73-47) at 24 (no detection in, e.g., Monitoring Wells 4, 5, 7, 8S, 9S, 11). 37The report refers to “a highly productive stratified-drift aquifer within [Swanzey], capable of supplying ample quantities of clean drinking water.” Plaintiffs’ Ex. 7 (doc. no. 71-8) at Exec. Summary. It also refers, however, to “the aquifers” in the plural when discussing the town’s water. See

(“the town should take action to protect this resource including enacting an ordinance to govern land uses and activities near the aquifers”); id. at 1 (“the first recommended management action was the adoption of an aquifer protection overlay district, designed to regulate land uses within the boundaries of Swanzey’s stratified drift aquifers.”).

21 The remaining evidence the plaintiffs cite in support of

this theory comes from affidavits by plaintiffs Short, Demond,

and Shelley.38 These statements, however, constitute clearly

inadmissible hearsay, Fed. R. Evid. 801(c), or otherwise fail to

satisfy the requirement of Federal Rule of Civil

Procedure 56(c)(4) that “[a]n affidavit or declaration used to

support or oppose a motion must be made on personal knowledge,

set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the

matters stated.”

Short’s statements are all either based on hearsay or lack

a foundation of personal knowledge. For example, Short — who

does not profess to be a hydrogeology expert and who appears to

lack any personal knowledge on the question — explained that

“[t]he town has told us if a private well happens to lie within

an area with high transmissivity, pollution that occurs a mile

away could possibly pollute that well within a few days.”39

38To the extent that the plaintiffs rely on the affidavit of Terry Bennett for the proposition that there was a “positive identification, of MTBE in the water source (aquifer) which supplies all the private wells in the area,” Plaintiffs’ Ex. 77 (doc. no. 74-2) ¶ 2, Dr. Bennett, a family practitioner, offers no basis for this statement, and the court need not credit it. See Fed. R. Civ. P. 56(c)(1); Schubert v. Nissan Motor Corp.,

(1st Cir. 1998). 39 See Plaintiffs’ Ex. 49 (doc. no. 73-24) at 1.

22 Short’s assertion that the aquifer “is under all . . .

plaintiffs” and is contaminated with MBTE appears likewise based

on the Granite State Rural Water Association Report and a

conversation with a “well and water expert,” who “explained that

the aquifer that feeds all of the wells for all of the named

plaintiffs has had MTBE in it for many years. So all of the

plaintiffs have had exposure to MTBE from the same aquifer.”40

He also appears to draw his knowledge concerning the size,

location, and flow rate of the aquifer from other sources.41

While the court takes no position on the underlying truth or

amenability to proof of these statements, or the credibility of

whoever made them, there can be no question that they constitute

inadmissible hearsay and may not be considered on summary

judgment. Dávila v. Corporación de P.R. Para La Difusión

Pública,

(1st Cir. 2007) (“It is black-letter law

that hearsay evidence cannot be considered on summary judgment”

for the truth of the matter asserted.).

40Plaintiffs’ Ex. 80 (doc. no. 74-5) ¶ 6. See also

(“As the experts have explained to me, . . . the aquifer underneath the plaintiffs’ wells, has had high levels of MTBE in it for many years. The water expert has explained that the [flow] in the aquifer is up to 4000 feet per day and the big leaks that took place of MTBE would have traveled throughout the aquifer.”). 41 See Plaintiffs’ Ex. 80 (doc. no. 74-5) ¶ 4.

23 Neither Shelley’s nor Demond’s statements concerning MBTE

contamination of the aquifer are admissible, either. Shelley

explained that he “found out from neighborhood gossip, we had

MTBE poisoning in the West Swanzey aquifer.”42 And Demond stated

that she has been “told that the source aquifer for our well and

most of the area is contaminated from the [gas station]”;

“[p]eople have told me that they have test results showing MTBE

in the aquifer feeding our well. . . . I have asked for those

test results to be located and provided”; and “I am told that my

dug well draws from the local groundwater and it is the same

ground water source that has the MTBE in it.”43 To the extent

that the plaintiffs offer these statements for the truth of the

matter asserted — specifically, that the source aquifer was

contaminated and affected them or anyone else on the same

groundwater source — they constitute inadmissible hearsay, see

Fed. R. Evid. 801(c), and cannot be considered on summary

judgment.

3. Statute of limitations

Plaintiffs Short, David Bashaw, and Armond and Marion

Bedard own property where testing revealed the presence of MTBE.

The defendants, conceding standing as to these plaintiffs’

42 Plaintiffs’ Ex. 84 (doc. no. 74-9) ¶ 12. 43 Plaintiffs’ Ex. 33 (doc. no. 73-8) ¶¶ 18-19, 28.

24 property-based claims in light of those results, move for

summary judgment on those claims as time-barred.

The parties agree that New Hampshire’s three-year statute

of limitations for personal actions governs the plaintiffs’

trespass and nuisance claims.44 Under that statute,

Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of . . . .

, I. The parties further agree that

the underlying gas station leak which was discovered in 1990,45

and contamination of these plaintiffs’ properties, which was

discovered in 2011, both occurred more than three years before

the plaintiffs filed this action in 2016.

The plaintiffs argue that their actions are timely under

the “discovery rule,” an exception to the three-year statute of

limitations. Under that rule,

when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

44Plaintiffs’ Supp. Mem. (doc. no. 71) at 4; Defendants’ Supp. Mem. (doc. no. 72) at 22-23. 45Compl. (doc. no. 1-1) ¶ 83; Defendants’ Mem. (doc. no. 49-1) ¶ 1.

25

, I. The discovery rule in New

Hampshire thus has two elements: “First, a plaintiff must know

or reasonably should have known that it has been injured; and

second, a plaintiff must know or reasonably should have known

that its injury was proximately caused by conduct of the

defendant.” Beane v. Dana S. Beane & Co.,

(2010) (citations omitted). The plaintiffs invoking the

discovery rule have “the burden of proving that an exception

applies to toll the statute of limitations . . . .” Feddersen

v. Garvey,

(1st Cir. 2005) (quoting Furbush v.

McKittrick,

(2003)).

a) Plaintiffs’ notice of their claims

The undisputed evidence demonstrates that Short, David

Bashaw, and the Bedards received notice, in 2011, of positive

tests for MTBE on their property resulting from the gas

station’s leak. Thus, even setting aside the extensive press

coverage of the gas leak submitted by the defendants,46 each of

these plaintiffs was on notice of both injury to their property

46The defendants have argued that all plaintiffs were on notice of potential claims in light of the media’s coverage of the leak, general community knowledge about the leak, and the State’s MTBE litigation. See Defendants’ Mem. (doc. no. 49-1) at 28-32. Given the specific notice of MTBE contamination in 2011 received by these four plaintiffs, the court need not address whether the plaintiffs reasonably should have known about their claims from these other sources.

26 in the form MTBE contamination and the causal connection between

that injury and the defendants’ actions no later than 2011.

Short, for example, has lived across the street from the

gas station since 1963 and acquired the property in 2016.47 His

mother, who also resided there, received four notices of

positive tests for MTBE on her property between September 2011

and October 2012.48 These notices indicated that MTBE is “a

potential human carcinogen,” and that “[y]ou or your family may

want to share this information with your physicians.”49 The

notice also contained a link to a NH DES “Environmental Fact

Sheet.”50 According to the Fact Sheet, the DES Environmental

Health Program “concludes that MTBE is an animal carcinogen. In

the interests of protecting public health, we are assuming that

the animal study results are relevant to humans until additional

research can confidently demonstrate otherwise.”51

47 Defendants’ Mem. (doc. no. 49-1) ¶¶ 11-12. 48Defendants’ Exs. 6-11 (doc. nos. 49-12, 49-13, 49-14, 49-15, 49-16, 49-17). 49 E.g., Defendants’ Ex. 7 (doc. no. 49-13). 50

51 Defendants’ Ex. 8 (doc. no. 49-14).

27 Short was aware of these MTBE detections and was “very

upset about the MTBE detected in his water supply well.”52 He

also knew of its connection to the gas station: In 2011, a

GeoInsight geologist “walk[ed] him through the process of how to

get information on the [Gas Station] from the NHDES Online

Database,”53 and he consulted an attorney about a potential

lawsuit.54 The fact that Short engaged the services of an

attorney in 2011 regarding the MTBE issue forecloses any

reasonable argument that Short did not know and could not

reasonably have discovered “that he suffered some harm caused by

the defendant’s conduct.” Beane,

.

52Defendants’ Mem. (doc. no. 49-1) ¶ 19; Defendants’ Ex. 16 (doc. no. 50) at 11, 40, and 42-45; Defendants’ Ex. 19 (doc. no. 50-3). 53 Defendants’ Mem. (doc. no. 49-1) ¶ 22. 54Id. ¶ 23-24; Defendants’ Ex. 23 (doc. no. 50-7) (“Mr. Short was copying the file for an attorney that was considering his case.”); Defendants’ Ex. 24 (doc. no. 50-8) (Mar. 11, 2016 e- mail from Short to Attorney Corley, McGrath Law Firm, stating: “Its [sic] been four years and three months since I hired and paid you . . . .”); Defendants’ Ex. 25 (doc. no. 50-9) (October 2011 agreement between Short and McGrath Law Firm and November 2011 cash payment from Short to McGrath Law Firm). See also Defendants’ Ex. 16 (doc. no. 50) at 155-156 (notes asking “how much longer are we going to play footsie with this case” and indicating it had been seven years since MTBE was detected on his property); id. at 161 (admitting that litigation was in Short’s mind in fall 2011).

28 The Bedards55 and David Bashaw56 likewise received notices

from NH DES that MTBE was detected in their drinking water in

2011. Their notices include the same language referring to MTBE

as a “potential human carcinogen” and a reference to the DES

Fact Sheet described above.57 Neither the Bedards nor David

Bashaw dispute their awareness, in 2011, of MTBE contamination

on their property or its connection to the gas station leak.

b) Plaintiffs’ counter-arguments

In an effort to counter this undisputed evidence, the

plaintiffs argue, first, that they did not know the extent of

their damages before April 2013 (at the earliest) and, second,

that one of the defendants fraudulently concealed the danger of

MTBE from them. Neither of these arguments overcomes the

statute of limitations at the summary judgment stage because

neither creased a genuine dispute of material fact.

First, these plaintiffs submitted declarations to the

effect that they did not know the extent of their damages until

55Defendants’ Mem. (doc. no. 49-1) ¶¶ 42, 45; Defendants’ Ex. 38 (doc. no. 51-2). The Bedards also received notice of positive tests in 2012. Defendants’ Ex. 39 (doc. no. 51-3). 56Defendants’ Mem. (doc. no. 49-1) ¶¶ 26-31. David Bashaw’s water tested positive in 2011, Defendants’ Exs. 12-13 (doc. nos. 49-18, 49-19), but negative in 2012, Defendants’ Ex. 31 (doc. no. 50-15). 57Defendants’ Ex. 38 (doc. no. 51-2) (Bedards); Defendants’ Ex. 13 (doc. no. 49-19) (David Bashaw).

29 sometime within the limitations period — that is, that they “did

not know of diminution of value of their property” as a result

of MTBE contamination “until after 2013,” bringing their suit

within the three-year limitations period.58 Short, for example,

states that he “was not fully aware in 2013 that the MTBE

problems cause cancer and [that MTBE] makes us sick,” and that

he “did not find out that it could damage my property value, and

that I could get cancer until approximately 2014.”59 He further

contended that “it did not occur to me until after the state

verdict in 2013 that my house and property value was damaged,”

and that he was damaged in 2015 when he “spoke to bankers,

realtors, and others in 2015 who told me they will not refinance

or lend more on the mortgage.”60

The Bedards’ nearly identical affidavits provide no

countervailing facts to rebut the notices they received

regarding MTBE and cancer.61 Both say only that they “had no

idea [they] had a cause of action for a lawsuit for cancer back

58Plaintiffs’ Obj. (doc. no. 60-1) at 5; Plaintiffs’ Supp. Mem. (doc. no. 71) at 6, 8-9, 13-15, 17-18. 59 Plaintiffs’ Ex. 49 (doc. no. 73-20) ¶¶ 2, 16. 60 Plaintiffs’ Ex. 80 (doc. no. 74-5) ¶ 6. 61 Defendants’ Exs. 34-35 (doc. nos. 50-18, 50-19).

30 in 2011 or 2012.”62 But they also say that they “have always

been concerned about the effect MTBE has on our water supply,

but we never thought about filing a lawsuit.”63 And David Bashaw

claims that he “did not find out that [MTBE] could damage [his]

property value . . . until approximately 2014,” when he “was

basically told [his] property is worth nothing by Savings

Bank.”64

But the plaintiffs misapprehend the requirements of the

discovery rule. It does not require “the full extent of the

plaintiff’s injury [to have] manifested itself” or that a

plaintiff “be certain of th[e] causal connection” between the

harm he has suffered and the defendant’s negligent or wrongful

act. Beane,

. “The possibility that [the causal

connection] existed will suffice to obviate the protections of

the discovery rule.”

(quotation omitted). And “that the

plaintiff could reasonably discern that he suffered some harm

caused by the defendant’s conduct is sufficient to render the

discovery rule inapplicable.”

(quotation omitted). These

62Defendants’ Ex. 34 (doc. nos. 50-18) ¶ 6; Defendants’ Ex. 35 (doc. no. 50-19) ¶ 6. 63Defendants’ Ex. 34 (doc. nos. 50-18) ¶ 6; Defendants’ Ex. 35 (doc. no. 50-19) ¶ 6. 64 Defendants’ Ex. 30 (doc. no. 50-14) ¶ 12.

31 plaintiffs’ undisputed knowledge in 2011 satisfies these

requirements.

Separately, Short and David Bashaw also contend that

defendant Bobby Patel fraudulently concealed the dangers of MTBE

from them, precluding awareness that they had a claim against

the defendants until they learned otherwise in 2013.65 “[T]he

fraudulent concealment rule states that when facts essential to

the cause of action are fraudulently concealed, the statute of

limitations is tolled until the plaintiff has discovered such

facts or could have done so in the exercise of reasonable

diligence.” Bricker v. Putnam,

(1986). As

with the discovery rule, the plaintiffs bear the burden of

demonstrating fraudulent concealment. See Furbush,

.

Here, however, there is no evidence in the record that

Patel concealed any essential facts from either Short or David

Bashaw. Both have submitted affidavits and deposition testimony

to the effect that Patel told them that the “water was safe”66

and the MTBE contamination was “not a big deal.”67 But, as

discussed supra, the undisputed evidence demonstrates that both

65 See Plaintiffs’ Obj. (doc. no. 60-1) at 32-35. 66 Plaintiffs’ Ex. 49 (doc. no. 73-24) at 3 (Short). 67Plaintiffs’ Ex. 43 (doc. no. 73-18) at 57 (David Bashaw); Plaintiffs’ Ex. 49 (doc. no. 73-20) ¶ 4 (Short).

32 Short and David Bashaw received notice of the dangers of MTBE

through the DES notifications. Because they received actual

notice of the material fact that they claim Patel concealed,

even if that single statement constitutes some form of

concealment, it does not operate to toll the statute of

limitations. E.g., Lamprey v. Britton Const., Inc.,

(2012) (stonemason’s statement that stones “should

not have come loose” did not constitute fraudulent concealment

where plaintiffs knew masonry was failing).

B. Personal-injury claims (Counts I, II, VI)

In addition to the ten plaintiffs’ property claims, all 14

remaining plaintiffs assert three claims arising out of alleged

personal injury. Specifically, they assert claims for strict

products liability on theories of defective design (Count I) and

failure to warn (Count II), as well as a negligence claim

(Count VI). The defendants move for summary judgment, arguing

again that the plaintiffs lack standing and that the three-year

statute of limitations bars these claims.

1. Standing

As discussed supra, the plaintiffs bear the burden of

proving that they have standing to bring these claims. Spokeo,

. To carry that burden, “a plaintiff must

establish each part of a familiar triad: injury, causation, and

33 redressability.” Katz,

. Injury, of course,

requires “an invasion of a legally protected interest which is

(a) concrete and particularized; and (b) actual or imminent, not

conjectural or hypothetical.”

(quoting Defenders of

Wildlife,

).

a) Injury

To prove injury for standing purposes at this stage of the

litigation, the plaintiffs must introduce evidence from which

the court can infer that they have suffered “an invasion of a

legally protected interest which is (a) concrete and

particularized; and (b) actual or imminent, not conjectural or

hypothetical.”

(quoting Defenders of Wildlife,

). In this context, the plaintiffs must introduce evidence

that they, themselves, have suffered some legally cognizable

injury that is concrete — that is, that “actually exists.”

Hochendoner,

.

(1) Plaintiffs with injuries (Arsenault, the Bedards, Chandler, Cote, Demond, House, Shelley)

The record with respect to the plaintiffs’ injuries is,

admittedly, light. Though the plaintiffs bear the burden of

demonstrating standing, Spokeo,

, with the

“manner and degree of evidence required” at the summary judgment

stage,” Katz,

, they have introduced no diagnoses,

34 no medical records, no doctors’ statements, no experts’

affidavits — in short, nothing more than their own statements

concerning the existence of their injuries. The court expected

a stronger showing at this stage in the litigation — that is, on

a motion for summary judgment that included an additional round

of submissions ordered by the court68 protected the plaintiffs’

interests after their counsel struggled to make their case in an

earlier round of briefing and oral argument.

At oral argument, the plaintiffs’ counsel blamed his

failure to introduce evidence of his clients’ injury on the

defendants, arguing that defense counsel declined to question

his clients about their personal injury claims69 and, further,

objected when he attempted to do so.70 The defendants vigorously

contest these allegations.71 Though the deposition records

reflect an agreement among the parties to limit discovery into

diminution of property values for the plaintiffs’ property-based

claims discussed supra Part III.A, nothing in the record

reflects any agreement, or any effort by the defendants, to

prevent the plaintiffs’ counsel from producing discovery, or

68 September 27, 2018 Procedural Order (doc. no. 68). 69 Transcript (doc. no. 69) at 17-18. 70 Id. at 18-20. 71 See Defendants’ Supp. Mem. (doc. no. 72) at 2-3 & nn. 6-7.

35 even asking his clients during deposition, about the nature and

extent of their alleged personal injuries.

Nonetheless, most of the plaintiffs have satisfied this

element of standing. Though the only evidence they offer in

support of their injuries are their own affidavits and

deposition testimony, those suffice at this stage to establish

the existence of an injury. See Defenders of Wildlife,

(“In response to a summary judgment motion, . . . the

plaintiff must ‘set forth’ by affidavit or other evidence

‘specific facts,’ which for purposes of the summary judgment

motion will be taken to be true.”).

Several of the plaintiffs have developed cancer, including

Arsenault,72 Marion Bedard,73 Chandler,74 Stephanie Cote,75

72Arsenault has had four types of cancer: colon, prostate, kidney, and thyroid. Plaintiffs’ Ex. 85 (doc. no. 74-10); Defendants’ Ex. 46 (doc. no. 51-10) ¶ 11. 73Bedard states that she “has been very sick,” and she “suffer[s] from vertigo and . . . [is] in remission from lymphoma.” Plaintiffs’ Ex. 83 (doc. no. 74-8) ¶ 3. 74Chandler’s single-sentence statement, “I have cancer,” is the sole reference in the record to any physical injury she has suffered. Defendants’ Ex. 105 (doc. no. 72-7) at 47. 75Nicole Cote brings claims on behalf of her late daughter, Stephanie Cote, who passed away in 2016 from Ewing’s Sarcoma, a type of bone cancer. Plaintiffs’ Ex. 35 (doc. no. 73-10) ¶ 11.

36 Demond,76 House,77 and Shelley.78 A cancer diagnosis satisfied

the requirement of a concrete, particularized injury.

Others have introduced evidence of other, allegedly

diagnosed injuries. Darren Bashaw has suffered from skin

irritation, bone rot, nerve damage, and arthritis.79 Armond

Bedard has “had two strokes.”80 And Julie Bedard, “at a very

young age[,] was diagnosed with digestive issues, [lung] issues,

pleurisy, pneumonia, a very bad cough, lymph node on back of her

76 Demond has “stage 4 brain cancer,” has had “a brain surgery,” and had “lung cancer.” Plaintiffs’ Ex. 33 (doc. no. 73-8) ¶¶ 7- 8. 77House has had lung cancer. Plaintiffs’ Ex. 71 (doc. no. 73- 46) at 45. 78Shelley has been “diagnosed with,” among other things, “lung cancer.” Plaintiffs’ Ex. 84 (doc. no. 74-9) ¶ 3. To the extent that Shelley attempts to pin his injury on the fact that “possible family members,” including his brother, have also been diagnosed with cancer, id. ¶¶ 3, 17, such injuries do not satisfy the actuality or particularity requirements. See Hochendoner, 823 F.3d at 731–32. 79Plaintiffs’ Ex. 90 (doc. no. 74-13) at 35. He also contends, without any supporting evidence, unless these constitute part of his “skin issues” and “bone rot,” that he has suffered from “cysts [and] back vertebrae . . . issues.” Plaintiffs’ Supp. Mem. (doc. no. 71) at 19. 80Plaintiffs’ Ex. 92 (doc. no. 74-15) ¶ 3. He also contends that his “gallbladder was reportedly ‘destroyed’” and subsequently removed in 2018. Plaintiffs’ Supp. Mem. (doc. no. 71) at 15. But there is no evidence in the record, at all, concerning his gallbladder. And, absent some sort of diagnosis, the court is hard-pressed to consider the fact that he has “been very sick,” “unstable/unbalanced,” “passed out a couple of times,” Plaintiffs’ Ex. 92 (doc. no. 74-15) ¶ 3, as cognizable injuries.

37 neck, and rapidly cervical degenerating [sic].”81 She submitted

an affidavit outlining a lifetime of health issues.82

Though the plaintiffs could have presented a stronger

record, knowing as they did that they bear the burden of

demonstrating standing, based on reasonable inferences drawn in

their favor at this stage in the litigation, these plaintiffs

have demonstrated an injury for standing purposes.

(2) Plaintiffs without injuries (Symonds, Merrill, David Bashaw, and Short)

Symonds, Merrill, David Bashaw, and Short, on the other

hand, have not satisfied the injury requirement. Symonds has

not alleged an injury; Merrill has not introduced evidence of

any injury she alleged; and Short and David Bashaw have not

introduced evidence of specific, cognizable injuries.

Symonds does not even so much as allege an injury83 and his

affidavit — the only evidence in the record from which the court

could expect to glean any suggestion of his injury — identifies

81Plaintiffs’ Supp. Mem. (doc. no. 71) at 16. The plaintiffs have supported these allegations with a declaration from Bedard which, curiously, they failed to introduce into the record. See Defendants’ Ex. 41 (doc. no. 51-5) at PLAINTIFFS57-59. 82 See id. 83See Plaintiffs’ Obj. (doc. no. 60-1) at 24-25; Plaintiffs’ Supp. Mem. (doc. no. 71) at 19-20.

38 none.84 He does state, in his affidavit, that his “wife

developed cancer in July 2012 and passed away in 2014.”85 He has

not, however, purported to bring this action on behalf of her

estate. Nothing in the complaint or the plaintiffs’ briefing

suggests as much. And injury to his wife does not constitute

injury to Symonds for standing purposes. Rather, “the party

asserting standing must not only allege injurious conduct

attributable to the defendant but also must allege that he,

himself, is among the persons injured by that conduct.”

Hochendoner, 823 F.3d at 731–32. Symonds has not, therefore,

introduced evidence of a cognizable injury.

Merrill alleges that she “was diagnosed with a spot of

cancer on her esophagus in 2013.”86 In a separate, “Preliminary

List of Damages,” she represents instead that she has

“[b]reathing problems, asthma, allergies, [and] chronic

headaches.”87 But no party has introduced any evidence

concerning any of these ailments.88 At the summary judgment

84 Plaintiffs’ Ex. 75 (doc. no. 73-50). 85 Id. ¶¶ 7, 14. 86 Plaintiffs’ Supp. Mem. (doc. no. 71) at 21. 87 Defendants’ Ex. 100 (doc. no. 72-2) ¶ 11. 88As supporting evidence, the plaintiffs cite to “Ex. 56(a).” Plaintiffs’ Supp. Mem. (doc. no. 71) at 21. But plaintiffs’ exhibit 56, which comprises Julie Bedard’s deposition testimony, contains no reference to Merrill’s cancer. See Plaintiffs’ Ex. 56 (doc. no. 73-31). Nor does defendants’ exhibit 56, Shelley’s

39 stage, “the plaintiff can no longer rest on . . . ‘mere

allegations,’ but must ‘set forth’ by affidavit or other

evidence ‘specific facts,’ which for purposes of the summary

judgment motion will be taken to be true.” Defenders of

Wildlife,

(quoting Fed. R. Civ. P. 56(e)).

Absent even an affidavit supporting her allegation of an injury,

Merrill has not substantiated her injury for standing purposes.

In his affidavit, David Bashaw claims that he has “been

very sick,” has “had three throat surgeries and stomach

issues.”89 No evidence identifies what ailment required the

throat surgeries, how he has been “very sick,” or what “stomach

issues” he suffers from. To the extent that David Bashaw bases

his personal-injury claims on “cancer and cancer related health

problems,”90 the record lacks any evidence at all that David

affidavit. See Defendants’ Ex. 56 (doc. no. 52). And none of Merrill’s deposition testimony or her affidavits contain any such reference. See Plaintiffs’ Exs. 61-65 (doc. nos. 73-35, 73-36, 73-37, 73-38, 73-39, 73-40); Defendants’ Ex. 33 (doc. no. 50-17). They do contain references to a skin rash, but the plaintiffs have not asserted that as an injury suffered by Merrill and caused by MTBE in this action and, even if they did, Merrill would still have failed to demonstrate general causation, as discussed infra Part III.B.1.b.3 n.110. 89 Defendants’ Ex. 30 (doc. no. 50-14) ¶ 4. 90Plaintiffs’ Supp. Mem. (doc. no. 71) at 18. He also alleges that his children have had cancer and have “collapsed for no known reason . . . .”

Even were there evidence in the record to support the allegation that his children have had cancer, David Bashaw’s standing, must turn on his own injury, not injuries to parties on whose behalf he has not brought

40 Bashaw has suffered from cancer or cancer-related health

problems.

Similarly, in his declaration, Short explains that he has

“been very sick,”91 and has a “lump on [his] chest” and a “spot

on [his] left breast.”92 But he has submitted no diagnoses, not

even in his own declaration or deposition testimony, nor any

more specific information about his “lump” and “spot.” Absent

any information about either of these items, which may be benign

as readily as malignant, the court is hard-pressed at the

summary-judgement stage, where Short bears the burden of

demonstrating an injury, to conclude that these vague statements

satisfy that requirement.

At this stage in the litigation, David Bashaw and Short are

obligated to “‘set forth’ by affidavit or other evidence

‘specific facts,’ which for purposes of the summary judgment

claims, such as his children. See Hochendoner, 823 F.3d at 731– 32. 91 Plaintiffs’ Ex. 45 (doc. no. 73-20) ¶ 3. 92Id. ¶¶ 20, 25. Short’s reference in paragraph 20 to “[t]he cancer that is predominate in West Swanzey, including my lump on my chest,” absent a diagnosis or any other information in the record concerning or contextualizing his “lump,” does not raise a dispute of material fact.

Short also asserts that his father, mother, and dog have died of cancer. Plaintiffs’ Supp. Mem. (doc. no. 71) at 9. Short’s standing, like David Bashaw’s, turns on his own injury, not injuries suffered by others. See Hochendoner, 823 F.3d at 731– 32.

41 motion will be taken to be true.” Defenders of Wildlife,

(quoting Fed. R. Civ. P. 56(e)). Their claims of

throat surgeries, stomach issues, a spot, and a lump lack the

requisite specificity; and David Bashaw’s claims of cancer lack

any evidence at all. Absent such evidence, Short and David

Bashaw have not satisfied the injury element of standing.

b) Causation

The causation element of standing “requires the plaintiff

to show a sufficiently direct causal connection between the

challenged action and the identified harm. Such a connection

“cannot be overly attenuated.”

(citations omitted). As the

parties agree, all three of the plaintiffs’ common-law personal-

injury claims (defective design, failure to warn, and

negligence) also require them to prove that the defendants’

actions injured the plaintiffs.93 For example, to prevail on “a

defective design products liability claim, a plaintiff must

prove,” among others, the following elements: “(1) the design

of the product created a defective condition unreasonably

dangerous to the user; . . . and (4) the condition caused injury

to the user or the user’s property.” Vautour v. Body Masters

Sports Indus., Inc.,

, 153–54 (2001). Similarly, to

93See Plaintiffs’ Supp. Mem. (doc. no. 71) at 1-3; Defendants’ Supp. Mem. (doc. no. 72) at 7-9.

42 prevail on a claim for failure to warn, a plaintiff must

demonstrate that the defendant inadequately warned him about the

unreasonably dangerous condition of a product. LeBlanc v. Am.

Honda Motor Co.,

(1997). And, of course,

“[i]t is axiomatic that in order to prove actionable negligence,

a plaintiff must establish that the defendant owed a duty to the

plaintiff, breached that duty, and that the breach proximately

caused the claimed injury.” Estate of Joshua T. v. State,

(2003).

A plaintiff in a personal-injury action of this variety

generally must demonstrate two forms of causation: general and

specific. “‘General causation’ exists when a substance is

capable of causing a disease” and “‘[s]pecific causation’ exists

when exposure to an agent caused a particular plaintiff's

disease.” Milward v. Acuity Specialty Prod. Grp., Inc.,

, 13 (1st Cir. 2011) (quoting Restatement (Third) of

Torts: Liability for Physical and Emotional Harm § 28

cmts. c(3), c(4) (2010)). That is, “general causation” requires

a showing that a substance — here, MTBE — has the capacity to

cause the condition from which the plaintiff suffers, while

“specific causation” requires a showing that the defendant’s

actions exposing the plaintiff to the substance can be said to

have caused the condition.

43 While the plaintiffs at this stage need not conclusively

prove either variety of causation, to overcome the defendants’

summary judgment motions, there must be some evidence in the

record from which the court may infer that (1) MTBE, in general,

causes an injury alleged by each plaintiff and (2) exposure to

MTBE released by the defendants caused each plaintiff’s specific

injury. Most of the plaintiffs fail to satisfy one or both of

these requirements.

As an initial matter, the plaintiffs’ affidavit from a

general practitioner with no demonstrated knowledge does not

suffice to prove causation, either general or specific. In that

affidavit, Terry Bennett, a general practitioner, summarily

concludes that the plaintiffs have been exposed to MTBE and that

even “low doses of MTBE in the water . . . will result in health

problems, including cancer and autism.” Plaintiffs’ Ex. 77

(doc. no. 74-2) ¶ 4. The court need not, and does not, credit

this affidavit because it contains only conclusory assertions,

without any basis, about the plaintiffs’ exposure and the cause

of their injuries. See Fed. R. Evid. 703, 705; Schubert,

(doctor’s affidavit was “without foundation” where

it did not “provide any factual basis” and merely “contain[ed]

conclusory assertions concerning the cause of . . . injury.”).

44 (1) Specific causation (Darren Bashaw, the Bedards, Chandler)

Six of the plaintiffs who have demonstrated injury have

also introduced evidence of specific causation — that is, that

they were exposed to MTBE released by the defendants. As

discussed supra Par III.A.3.a, Armond and Marion Bedard and

Teresa Chandler have submitted evidence that MTBA was detected

in the water from their homes. That suffices, at this stage, to

demonstrate their exposure to MTBE.

The defendants argue that Chandler has not been exposed to

MTBE because she stopped drinking water from her well in 2013

over a year before MTBE was detected in her water.94 But at the

summary judgment stage, the court draws reasonable inferences in

favor of the non-moving party. Noviello,

. Where

the record includes no evidence to the contrary, the court may

therefore infer that, even if Chandler was not drinking her

water, she was exposed to it by other means while living on the

affected property, such as through washing or bathing.

The defendants also argue that Julie Bedard and Darren

Bashaw have not demonstrated exposure because neither of them

lived on one of those properties at the time of detection. But

evidence exists in the record from which the court can in fact

94 Defendants’ Supp. Mem. (doc. no. 72) at 47.

45 infer that each visited during the time period when MTBE was

detected. Specifically, Darren Bashaw moved out of the home now

owned by his brother David in 2004, but visited approximately

one or twice a week thereafter.95 He may, therefore, have been

exposed to the water around the time of the positive test. And

though Julie Bedard moved away from Armond and Marion Bedard’s

home before 2000,96 she returns to visit her parents from time to

time.97 And though she does not stay at their house98 and drinks

bottled water when she visits,99 it is not unreasonable to infer

that she bathes, washes her hands or otherwise is exposed to the

water on those visits.

(2) No specific causation (Arsenault, Cote, Demond, House, Shelley)

Five of the plaintiffs lack standing for failure to

introduce evidence from which the court can infer that exposure

to MTBE released by the defendants caused any alleged injury.

Specifically, there is no evidence in the record from which the

95 See Defendants’ Supp. Ex. 103 (doc. no. 72-5) at 9-10. 96 Defendants’ Mem. (doc. no. 49-1) ¶ 63. 97 Defendants’ Ex. 107 (doc. no. 72-9) at 25. 98

99 Defendants’ Ex. 113 (doc. no. 72-15) at 77.

46 court can infer that Arsenault, Stephanie Cote, Demond, House,

or Shelley was exposed to MTBE.

Demond, House, and Shelley have introduced no evidence from

which the court can infer their exposure to MTBE. Specifically,

as discussed supra Part III.A.2.a, MTBE has never been detected

on any of their properties. They have not introduced any

evidence that they were exposed to MTBE through some other

source, such as the water in a home that did test positive.

And, just as Demond and House cannot base property-damage claims

on injuries allegedly suffered by another property owner, absent

evidence of their presence on those other properties, positive

tests on other properties fail to raise more than mere

speculation that they have been exposed to MTBE.

Nor have Arsenault and Cote introduced evidence of their

exposure. Both Arsenault and Cote have lived in the Pine Grove

Mobile Home Park — Arsenault from 1980 to 1984 and 2000 to the

present, and Cote from 2010 to 2014.100 Cote’s late daughter, on

whose behalf Cote brings this claim, was born during that time,

and lived there with Cote until 2014.101

100 Defendants’ Mem. (doc. no. 49-1) ¶¶ 70, 78, 82. 101 See id. ¶¶ 82, 84.

47 As discussed supra Part III.A.2.b, Pine Grove has a

community water system.102 No MTBE has been detected in that

community water system during the time that Arsenault or Cote

lived there.103 Though trace amounts of MTBE were detected in

monitoring wells, the record contains no evidence on which the

court can rely at summary judgment that either Arsenault or

Stephanie Cote were exposed to the water tested by those

wells.104 The monitoring wells nearest to Arsenault’s and

Cotes’s property never tested positive for MTBE105 and, even if

they had, those wells did not supply water to their homes.106

Accordingly, there is no evidence that Arsenault or Cote has

102Id. ¶¶ 71. In their memorandum, the plaintiffs suggest that Cote’s property had its own well. See Plaintiffs’ Supp. Mem. (doc. no. 71) at 10. The deposition testimony on which that assertion is based, however, clearly refers to the source of the Pine Grove water supply, not an independent well associated with Cote’s property. See Plaintiffs’ Exs. 36-38 (doc. nos. 73-11, 73-12, 73-13). 103Defendants’ Mem. (doc. no. 49-1) ¶ 76; Crosby Aff’t (doc. no. 54) ¶ 7 (no MTBE detected between March 12, 1999 and May 23, 2016). 104As discussed supra Part III.A.2.b, the court cannot rely on Moyer’s unsworn, undated affidavit for this purpose. See Cordero-Soto,

; Fed. R. Civ. P. 56(c)(4). 105See Plaintiffs’ Ex. 46 (doc. no. 73-21) (map of Pine Grove, showing Arsenault’s property at lot number 3 and Cote’s at lot number 121); Plaintiffs’ Ex. 48 (doc. no. 73-23) (showing location of monitoring wells); Plaintiffs’ Ex. 72 (doc. no. 73- 47) at 24 (no positive results for monitoring wells 7 and 11). 106 See Defendants’ Mem. (doc. no. 49-1) ¶ 77.

48 been exposed to MTBE, and thus no evidence of a causal

connection between its release and their injury.

(3) General causation

Only Darren Bashaw, Armond Bedard, Marion Bedard, Julie

Bedard, and Chandler have introduced evidence of both injury and

specific causation. Of these remaining plaintiffs, only Marion

Bedard and Chandler have also demonstrated general causation —

that is, only these two plaintiffs have introduced any evidence

that MTBE is known to cause the specific injury (cancer) she has

allegedly sustained.

Both Marion Bedard and Chandler have submitted affidavits

affirming that they both have developed cancer.107 Evidence in

the record connects MTBE exposure to cancer. For example, the

New Hampshire Department of Environmental Services notice that

the Bedards received in 2011 explained that MTBE “is a potential

human carcinogen . . . .”108 The “fact sheet” accompanying that

notice further acknowledges the potential for MTBE to cause

cancer.109 Thus, Bedard and Chandler have offered evidence of an

injury causally connected to the defendants’ actions and,

107Plaintiffs’ Ex. 83 (doc. no. 74-8) ¶ 3 (Bedard); Defendants’ Ex. 105 (doc. no. 72-7) at 47 (Chandler). 108 Defendants’ Ex. 15 (doc. no. 49-21). 109Defendants’ Mem. (doc. no. 49-1) ¶¶ 46-47; Defendants’ Ex. 8 (doc. no. 49-14) at PLAINTIFFS834-35.

49 accordingly, have standing to bring their personal-injury

claims.

Darren Bashaw, Armond Bedard, and Julie Bedard have not met

this requirement. The plaintiffs point to no admissible

evidence in the record suggesting that MTBE exposure causes skin

irritation,110 bone rot, nerve damage, or arthritis as pleaded by

Darren Bashaw. Nor does any evidence demonstrate that MTBE

exposure causes strokes, or Armond Bedard’s other vaguely

described ailments. Similarly, the plaintiffs point to no

evidence in the record suggesting that the MTBE causes any of

the ailments of which Julie Bedard complains. These plaintiffs,

therefore, have failed to introduce evidence from which the

court can infer that the defendants’ actions caused their

alleged injuries.111

110The only evidence in the record that MTBE causes skin problems appears in Darren Bashaw’s affidavit, Plaintiffs' Ex. 43 at PLAINTIFFS212 (doc. no. 73-18) ¶ 2 (“I only heard it could cause skin issues, rashes, and irritation. I heard this from my brother David.”), and Demond’s affidavit, Plaintiffs' Ex. 33 (doc. no. 73-8) ¶ 24 (“I am told that MTBE can cause skin problems.”). Both of their statements are hearsay, which is not admissible at summary judgment. See Fed. R. Evid. 801(c); Federal Rule of Civil Procedure 56(c)(4); Dávila,

. 111The court concluded, supra Part III.B.1.a.2, that Short and David Bashaw have not introduced evidence of cognizable injuries. Even if they had, their claims would end at this stage as well. No evidence in the record suggests that MTBE exposure causes throat surgeries (in and of themselves), “stomach issues,” or undiagnosed “lumps” or “spots.”

50 2. Statute of limitations

The defendants argue that New Hampshire’s three-year

statute of limitations bars the personal-injury claims of all of

the plaintiffs who received notice of MTBE contamination in

2011. See

. Of those plaintiffs,

only Marion Bedard and Teresa Chandler appear to have standing

to bring those claims. The statute of limitations bars Marion’s

and, even if Armond Bedard and David Bashaw had standing, it

would bar their claims as well.

Because those plaintiffs received notice of MTBE

contamination in 2011, more than three years before the

complaint was filed in April 2016, the plaintiffs have the

burden of demonstrating that the discovery rule salvages their

claims. Feddersen,

(quoting Furbush,

). To carry that burden, they must demonstrate that their

claims accrued no more than three years before the complaint was

filed. See Gagnon v. G.D. Searle & Co.,

(1st

Cir. 1989) (applying New Hampshire law). Personal-injury claims

accrue when “the plaintiff discovers or in the exercise of

reasonable diligence should have discovered not only that he has

been injured but also that his injury may have been caused by

the defendants’ conduct.”

Thus, the plaintiffs here must

demonstrate that they were aware (or reasonably should have been

aware) of some injury that may have been caused by MTBE no

51 earlier than April 11, 2013. None of these plaintiffs have

carried that burden.

Marion Bedard also has not met this burden. Her personal-

injury claims accrued upon her diagnosis in 2011.112 And she

received notice, also in 2011, that her water tested positive

for MTBE and that MTBE is a possible human carcinogen.113 Thus,

as of 2011, Marion Bedard knew of her injury and was on notice

that her “injury may have been caused by the defendants’

conduct.” Gagnon,

.

Even assuming that David Bashaw had standing, he admits

that “[t]he record does not reflect the exact dates of when

[his] injuries occurred.”114 The record likewise contains no

evidence of when Armond Bedard’s ailments occurred or were

diagnosed. Absent such evidence, they cannot demonstrate that

their claims accrued less than three years before the complaint

was filed. As they carry the burden of coming forward with such

evidence, no genuine factual dispute exists here.

The defendants have included “Barred by Statute of

Limitations” in their heading addressing Chandler’s personal-

112Plaintiffs’ Supp. Mem. (doc. no. 71) at 14 (Bedard “was not diagnosed with cancer until 2011”); Plaintiffs’ Ex. 83 (doc. no. 74-8 (“The cancer that I have did not get diagnosed until 2011 . . . .”). 113 Defendants’ Ex. 15 (doc. no. 49-21). 114 Plaintiffs’ Supp. Mem. (doc. no. 71) at 18.

52 injury claims.115 This appears to be a mistake, as they do not

develop that argument nor include it in their summary chart.116

In any event, Chandler’s personal-injury claims accrued no later

than the date of the notice in 2014 that her water tested

positive for MTBE, which occurred less than three years before

the complaint was filed. The statute of limitations therefore

does not bar her claims.

C. Consumer Protection Act claims (Count VII)

Finally, the plaintiffs allege that the defendants violated

New Hampshire’s Consumer Protection Act. That statute renders

it “unlawful for any person to use any unfair method of

competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within this state.”

-A:2. It enumerates a series of actions

expressly prohibited.

§ 358-A:2 (“Such unfair method of

competition or unfair or deceptive act or practice shall

include, but is not limited to, the following . . . .”). But

other actions not expressly prohibited may run afoul of the

Act’s general prohibition if “the objectionable conduct . . .

attain[s] a level of rascality that would raise an eyebrow of

someone inured to the rough and tumble of the world of

115 Defendants’ Supp. Mem. (doc. no. 72) at 47. 116 See id.; Defendants’ Supp. Reply App’x A (doc. no. 75-1).

53 commerce.” Fat Bullies Farm, LLC v. Devenport,

(2017) (quotations and citations omitted).

The Act exempts from its provisions, among other things,

“[t]ransactions entered into more than 3 years prior to the time

the plaintiff knew, or reasonably should have known, of the

conduct alleged to be in violation of this chapter . . . .”

-A:3, IV-a. “To determine whether a

claim is exempt from the CPA, [the court] look[s] back from the

time that the plaintiffs ‘knew or reasonably should have known’

of the alleged violation. If the transaction at issue occurred

more than three years before that time, then it is exempt.”

Murray v. McNamara,

(2015). The defendants,

as the party claiming the exemption, bear the burden of proving

it. Id.;

-A:3, V.

They have done so here. The plaintiffs allege that the

defendants engaged in actions that violate the Consumer

Protection Act “in connection with their design, testing,

manufacture, promotion, marketing and supply of gasoline

containing MTBE.” The plaintiffs contend that none of them were

aware of those actions prior to April 2013. There is no

dispute, however, that New Hampshire banned MTBE in 2007 or that

the defendants’ actions alleged to violate the Consumer

Protection Act all occurred before 2007. Thus, even crediting

the plaintiffs’ representations concerning when they knew of the

54 alleged violation,117 those allegedly actionable activities

occurred more than three years prior to the plaintiffs’

knowledge, and are thus exempted from the Act. The defendants

are, therefore, entitled to summary judgment on the plaintiffs’

Consumer Protection Act claim as well.

Conclusion

All but one of the plaintiffs have failed to carry their

burden at this summary judgment stage of demonstrating, through

admissible evidence — not mere allegations or unsigned

statements — that they have standing to bring their claims and

that the discovery rule prevents the statute of limitations from

time-barring those claims. They have failed to do so despite

the court affording them a period of discovery to produce such

evidence and an opportunity to supplement the record and their

briefing.

Accordingly, for the reasons set forth above, the court

GRANTS-IN-PART and DENIES-IN-PART the defendants’ motion for

summary judgment.118 Specifically, the court grants the

defendants’ motion with respect to both the property-based and

117See generally Plaintiffs’ Supp. Mem. (doc. no. 71). As discussed supra Part III.A.3, despite those representations, the undisputed facts in the record reflect that several of the plaintiffs were aware of MTBA contamination of their property caused by the defendants’ actions before 2013. 118 Document no. 49.

55 personal-injury claims of all plaintiffs except Teresa Chandler,

and denies it with respect to Chandler’s property-based and

personal-injury claims. The court grants the defendants’ motion

with respect to all plaintiffs’ Consumer Protection Act claims.

The court also GRANTS the defendants’ unopposed motion to

dismiss plaintiff Robert LaClair’s claims.119

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 29, 2019

cc: Peter G. McGrath, Esq. Lisa S. Meyer, Esq. Nathan P. Eimer, Esq. Pamela R. Hanebutt, Esq. Owen R. Graham, Esq. Robert C. Dewhirst, Esq. Shelly Geppert, Esq. Peter W. Mosseau, Esq. Steve J. Bonnette, Esq. Stephen H. Roberts, Esq. Deborah E. Barnard, Esq. Jessica R. Early, Esq.

119 Document no. 48.

56