City of New York v. Exxon Mobil Corp.
City of New York v. Exxon Mobil Corp.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
In 2003, the City of New York (the “City”) filed a Complaint against various corporations for their use and handling of the gasoline additive methyl tertiary butyl ether (“MTBE”), alleging that the MTBE contaminated — or threatened to contaminate — the City’s groundwater supply.
II. BACKGROUND
A. Facts
The New York City water supply system provides drinking water to over eight million customers in the City of New York and one million customers in upstate communities.
The New York City groundwater system consists of sixty-eight wells located in Queens, New York, which draw water from the Brooklyn-Queens Aquifer.
At a public information session on November 21, 2001, the Commissioner of the New York City Department of Environmental Protection noted that the JWSC had produced some of the poorest quality water in the area.
In 1994, the City- — -partnered with the United States Geological Survey (“USGS”) — commenced the Brooklyn-Queens Aquifer Study, a multi-year planning study of the New York City groundwater system.
Currently, approximately half of the City’s water supply is distributed through the Rondoub-West Branch Tunnel, which links to a remote surface water reservoir.
Exxon contends that the City has no firm plans to build a treatment cluster at Station 6 and that City planners currently favor building a third tunnel to surface water reservoirs to satisfy any projected water shortages. City deposition witnesses testified that the City has completed early stages of the design process for the Station 6 treatment cluster
None of the Station 6 wells were turned off in response to MTBE contamination and Exxon contends that these wells are unusable for reasons unrelated to MTBE contamination.
B. Trial Structure
This Court adopted a bellwether approach to this trial: Among the dozens of wells that the City alleges have been injured by Exxon’s MTBE, Exxon and City each chose five to litigate. The parties recently agreed to litigate only the City’s five focus wells during the initial bellwether trial. The City’s focus wells are 6, 6A, 6B, 6C, and 6D, which are all in Station 6. MTBE has been detected in each of these wells. All of these wells are available for use by the City, but none are currently in use.
This case will be tried in four phases, with special jury interrogatories posed at the end of each phase.
C. IMotion in Limine
Exxon moves to prevent the City from presenting evidence of past or future costs relating to MTBE treatment and design until it proves actual injury. Exxon argues that this case concerns threatened wells because the City’s property interest is — at most — in the use of the water and the City — for reasons unrelated to MTBE contamination — has never used these wells. Under this theory, the only possible injury to the City is the future injury that might occur if the City puts these wells back in service. In turn, actual injury will occur only if MTBE is still in the water at a level that requires remediation when the wells are brought on line.
Exxon also makes several related arguments. First, Exxon claims that the City does not have standing to sue because it suffers no current or imminent injury. Second, Exxon asserts that this suit is not ripe for adjudication. Third, Exxon argues that the City’s claim of future damages is too speculative to merit recovery under New York law. Fourth, Exxon states that the cost of treating MTBE— including the design of necessary facilities' — is a pure economic loss, which does
The City responds that it suffered injury when its wells were contaminated by MTBE. Although Station 6 wells have not been in use for reasons unrelated to MTBE, the City argues that its current ability to use the wells is significantly hampered by the presence of MTBE. In particular, the City maintains that were it not for MTBE contamination, it would treat the other contaminants in order to use these wells. As a result, the City argues that the contamination constitutes a current injury.
The City also counters each of Exxon’s secondary arguments. First, the City states that the suit is ripe for adjudication because it is presently injured by hardships including the inability to plan and to implement a treatment project for these wells absent recovery. Second, the City asserts its claim for damages is not speculative because it firmly intends to use these wells once it can treat them; thus damages can be calculated based on definite treatment costs. Third, it further argues that its damages claim is not speculative because it has already spent money to design treatment facilities for these wells and will incur further costs for design and implementation of a treatment facility as a result of a statutory obligation to investigate and remediate MTBE. Fourth, the City claims that evidence of past costs for designing treatment facilities is relevant to rebut Exxont’s argument that the City has no intention to use Station 6 wells in the future.
III. APPLICABLE LAW
A. Motion in Limine
The Federal Rules of Evidence favor the admission of all relevant evidence.
B. Standing
The Constitution of the United States expressly limits the federal judicial power to certain enumerated “cases” or “controversies.”
The Supreme Court has identified an “irreducible constitutional minimum” that must be shown by a party seeking redress.
The “ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”
Under the prudential doctrine of ripeness, “when a court declares that a case is not prudentially ripe, it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay.”
D. Injury
Under New York law, the injury in a toxic tort case is sustained at the time the noxious substance entered the body; not the time when the harm manifests.
This Court also held in a third MTBE case — applying analogous principles of California law — -that whether a water district “has suffered an injury turns on whether such contamination caused or should have caused [the District] to act in furtherance of its eharge[of] protecting all groundwater within the District’s territory.”
E. Damages
“ ‘Establishing the appropriate measure of damages for injuries suffered from environmental conditions on neighboring land is separate and distinct from offering the requisite proof of the underlying claim.’ ”
Under New York Law, recovery of damages based on future consequences of a present injury may be had only if such consequences are “reasonably certain.”
In New York, the meaning of the term “reasonably certain” varies depending on the context. The rule of reasonable certainty has been applied to the proof of every type of damage — both past and future.
IY. DISCUSSION
A. Standing
The City alleges two types of injury, one present and one future. The present injury claim is that Section 6 wells have already been contaminated by MTBE at a level that requires remediation. The City has three different bases for standing to bring this claim. First, because the injury caused by a toxic substance occurs at the time of impact (under New York law) — even if the effects of this injury will not materialize until the wells are turned on — the City already has a claim related to Exxon’s introduction of MTBE into its groundwater. Second, the City alleges that the introduction of MTBE into the Brooklyn-Queens Aquifer required it to expend funds designing a treatment facility. These expenditures are sufficient to give the City a cognizable interest in this
The City’s future injury claim is that even if some of these wells are not currently contaminated by MTBE at a level that establishes injury, once the wells are turned on the MTBE contamination will substantially and immediately increase to a level that constitutes a cognizable injury to the City. The City’s water is threatened; thus the City has standing to make these claims, with the usual caveat that it must show that the injury will be “imminent” once the wells are turned on.
B. Ripeness
The City has standing based on a number of present or threatened injuries to its groundwater. For the same reasons, the suit is ripe for review. Furthermore, the suit is prudentially ripe because it is fit for judicial resolution and denying plaintiff permission to sue now would create a significant hardship. Claims involving future damages are commonplace in New York courts.
C. The City Must Prove Its Claim By a Preponderance of the Evidence
A significant portion of the City’s claim relates to future damages, albeit arising from a present injury. Under New York law, future damages must be proven to a reasonable degree of certainty. The ordinary interpretation of this term is the equivalent of a preponderance of the evidence standard. Moreover, plaintiffs’ claims are distinguishable from those claims where courts have imposed a heightened burden of proof. First, future damages from a present injury have long been available under the common law. Therefore there is no need for courts to narrowly construe future damages as a departure from common law principles. Second, the City’s claims relate primarily to future damages for a present injury, rather than future damages arising from a future injury. Thus future damages claims are inherently less speculative and uncertain than future injury claims, such as claims relating to uncertain medical risks and complications. Third, damages sought by the City are directly compensatory for the injury alleged, rather than special damages that are by their very nature speculative. Although there is some future element to these claims, the nature of the injury is known, distinguishing this case from one concerning future earnings or lost services.
Here — as in most cases — the reasonable certainty requirement does not require a plaintiff to meet a heightened burden of proof — i.e. the clear and convincing evidence standard. Although the jury may not base a damages finding on speculative or conjectural evidence, the City need only prove that it is more likely than not that it will suffer the particular damages alleged. In other words, the City must meet only the traditional preponderance of the evidence standard for a civil claim.
The situation differs with regard to wells in which present levels of MTBE are insufficient to constitute an injury. In such event, the case is properly analogized to the medical treatment and device cases described above, as they relate to a future injury — not merely future damages. Therefore, with reard to those wells, the City must prove by clear and convincing evidence that MTBE will remain in the capture zone by the date of the City’s intended use of the groundwater and that when the wells are turned on the influx of water will raise MTBE concentrations to an injurious level.
D. The City’s Damages Claims Are Not Speculative
Exxon incorrectly asserts that the City must prove that it will use the well in Section 6 in the future, either by actively supplying drinking water or bringing the wells on line as a back-up source. The general rule in New York is that a plaintiff may recover for interference with use of property provided that the plaintiff “actually intends, in good faith, to make such
Although this case presents an atypical fact pattern, it is not mi generis. In Squaw Island Freight Terminal Co. v. City of Buffalo, the plaintiff had ceased dredging sand from his property after sewage released by the defendant had rendered the sand “useless for commercial purposes.”
Accordingly, the City must show that it intends, in good faith, to use the property. To ensure that this proof is not speculative, the City will be required to show that it intends — in good faith — to commence building the treatment facility within fifteen years. The City must also show the requisite level of MTBE contamination in one of two ways. First, it may prove by a preponderance of the evidence that MTBE will be in the water — at a level sufficient to cause injury — at the time the plant is likely to be built.
E. Evidence of Past or Future Costs Prior to Establishing Injury
The City intends to introduce evidence that it has recently spent significant sums to design a treatment facility for
V. CONCLUSION
For the foregoing reasons, Exxon’s motion in limine is granted in part- — -to the extent that the City may not attribute the past design costs to MTBE contamination and may not present evidence of future design costs in Phase I — and denied in all other respects. The Clerk of the Court is directed to close this motion (No. 04 Civ. 3417, document 95; No. 00 MDL 1898, document 2306).
SO ORDERED.
. This Opinion assumes familiarity with facts discussed in this Court's previous opinions in this case. For a general discussion of the MTBE litigation, see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348, 364-67 (S.D.N.Y. 2005).
. See Memorandum of Law in Support of Defendants' Joint Motion In Limine to Exclude Evidence and Argument Regarding Plaintiff's Past and Future Investigation and Treatment Costs Until It Proves Actual Injury ("Def. Mem.”).
. See Joint Pretrial Order for Phase II ("JPTO II”) at 5.
. See id.
. See JPTO II at 5. Exxon recently contested whether the City owns the groundwater system and is the proper plaintiff in this case. On July 6, 2009, this Court resolved any potential dispute by joining the New York City Water Board Authority and the New York City Municipal Water Finance Authority as necessary plaintiffs. See Order, No. 337, City of New York v. Amerada Hess Corp., No. 00 MDL 1898, 04 Civ. 3417 (S.D.N.Y. July 6, 2009). For ease of understanding, I will continue to use "the City” to refer to all three plaintiffs.
. See JPTO II at 5.
. N.Y. Gen. City Law § 20(2).
. See JPTO II at 5.
. See id. On May 13, 2008, the DEC renewed this permit for an additional eleven years. The current permit authorizes the City to operate sixty-eight wells in the system, including the five at issue in this trial. See id.
. See id. at 8.
. See id.
. See id.
. See id. at 10.
. See id. at 6.
. See id.
. See id.
. See id.
. See id. at 8.
. See id.
. See id.
. See id. at 7-8.
. See 4/22/09 Deposition of William A.T. Meakin, expert for the City, at 222:22-23, Ex. 4 to 5/26/09 Declaration of Nicholas G. Cam-pins, counsel for the City ("Campins Decl.").
. See 4/17/08 Deposition of James J. Roberts, expert for the City, at 72:15-21, Ex. 3 to Campins Decl.
. For example, Exxon emphasizes that the City received a recommendation in 1987 to abandon all of the Station 6 wells, long before MTBE was detected. See JPTO II at 10.
.The City emphasizes that a 2003 USGS analysis of 275 organic and inorganic constituents in fifty Brooklyn and Queens wells reported MTBE to be the most frequently detected contaminant. See JPTO II at 4. The City also notes that a defense expert of a settling party stated in his report that "MTBE is ubiquitous in the Region’s shallow aquifers.” See 3/9/09 Expert Report of James A. Schaeffer, expert for defendant Getty Properties Corporation, Ex. L to 5/26/09 Declaration of Daniel Greene, counsel for the City ("Greene Decl.”). Another defense expert testified that the City’s groundwater system has “by far” more MTBE contamination than in typical communities using public supply wells. See 1/30/09 Deposition of Dr. Fletcher G. Driscoll, at 174:20-177:8, Ex. K to Greene Decl.
. The parties dispute the questions that should be put to the jury at the end of each phase. Nothing in the following description is intended to resolve any of these disputes.
. See JPTO II at 10-11.
. See id.
. See id.
. See Fed.R.Evid. 402.
. Fed.REvid. 401.
. United States v. Ozsusamlar, 428 F.Supp.2d 161, 164 (S.D.N.Y. 2006).
. United States v. Chan, 184 F.Supp.2d 337, 340 (S.D.N.Y. 2002).
. Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir. 1996) (quoting Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)).
. U.S. Const, art. Ill, § 1.
. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)).
. Id. at 561, 112 S.Ct. 2130.
. Id. (quotation marks and citations omitted). Accord Heckler v. Mathews, 465 U.S. 728, 736, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (requiring "actual or threatened injury” (quotation marks omitted)). The other two requirements are that the plaintiff’s injury must be "fairly traceable” to the defendant’s alleged conduct, and it must be likely that the injury will be "redressed by a favorable decision.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
. Ross v. Bank of America, N.A. (USA), 524 F.3d 217, 222 (2d Cir. 2008).
. Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). Accord Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (“Our threshold inquiry into standing in no way depends on the merits of the [plaintiff's claim].” (quotation marks omitted)).
. Denney, 443 F.3d at 265.
. Id.
. Id. Accord In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425, 1434 (2d Cir. 1993) (rejecting the argument that "injury in fact means injury that is manifest, diagnosable or compensable”) (internal quotation marks omitted), overruled in part on other grounds by Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002); 7A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Fed. Prac. & Proc. Civ.3d § 1785.1 (2005) ("If plaintiff can show that there is a possibility that defendant’s conduct may have a future effect, even if injury has not yet occurred, the court may hold that standing has been satisfied.”).
. Bridgeport and Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 567 F.3d 79, 86 (2d Cir. 2009) (quotation marks omitted).
. Denney, 443 F.3d at 265. Accord Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 574-75 (6th Cir. 2005) (holding that the increased risk that a faulty medical device may malfunction constituted a sufficient injury:in-fact even though the class members’ own devices had not malfunctioned and may have actually been beneficial).
. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
. Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57, n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993).
. Ross, 524 F.3d at 226 (quoting Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002)).
. Id.
. Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003).
. Thomas v. Union Carbide Agricultural Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985).
. 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532.1 (2009). Accord Uhl v. Thoroughbred Tech. and Telecoms., Inc., 309 F.3d 978, 984-85 (7th Cir. 2002) (holding that when one claim is justiciable, “[t]his is enough to permit the court to address the entire suit”).
. See Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515, 615 N.E.2d 999 (1993). See also Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300, 200 N.E. 824 (1936) ("The injury occurs when there is a wrongful invasion of personal or property rights .... When substantial damage may result from any wrong affecting the person or property of another, a cause of action for such wrong immediately accrues.”); Snyder, 81 N.Y.2d at 433, 599 N.Y.S.2d 515, 615 N.E.2d 999 ("Disease was a consequence of the injury ... not the injury itself”) (citing Schmidt, 270 N.Y. at 301, 200 N.E. 824).
. Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757, 772, 666 N.Y.S.2d 536, 689 N.E.2d 506 (1997) (quoting Schmidt, 270 N.Y. at 300, 200 N.E. 824).
. Id. In contrast, an injury resulting from contact with a substance that is not "inherently toxic or dangerous” — such as a repetitive stress injury resulting from contact with a computer keyboard — occurs at the time the harm manifests. Id. at 772-73, 666 N.Y.S.2d 536, 689 N.E.2d 506. Accord id. at 768, 666 N.Y.S.2d 536, 689 N.E.2d 506 (noting that injury resulting from malfunction of a medical implant occurs at the time of the malfunction because the action is "based upon objects
. In re MTBE Prods. Liab. Litig., 568 F.Supp.2d 376, 379 (S.D.N.Y. 2008) (emphasis added).
. See, e.g., Westphal v. City of New York, 75 A.D. 252, 78 N.Y.S. 56, 59 (2d Dep’t 1902) ("The plaintiff has no property right in the water, as such; he does not own the particles of which it is formed. His property in the water is in its use while it remains upon or under his lands; it is the usufructuary right, the same as in flowing water. He has the right to the use of the water, but he has no property in the water as such; and the measure of his damages ... is the decreased fee or rental value of the property with the water withdrawn.”).
. In re MTBE Prods. Liab. Litig., 475 F.Supp.2d 286, 295 (S.D.N.Y. 2006) (quotation marks omitted).
. Id. On the other hand, "where MTBE was present at low levels or located in areas that did not, at that time, threaten the groundwater, [the District] suffered no appreciable harm.” Id.
. In re MTBE Prods. Liab. Litig., 568 F.Supp.2d at 381 (quoting Mark S. Dennison, Recovery of Damages For Injury to Landowner’s Property from Environmental Condition on Neighboring Land, 37 Am.Jur. Proof of Facts 3d 439, § 10(2008)).
. McDougald v. Garber, 73 N.Y.2d 246, 254, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989).
. In re MTBE Prods. Liab. Litig., 568 F.Supp.2d at 379 (quotation marks omitted).
. Id. (quotation marks omitted).
. Okraynets v. Metropolitan Transp. Auth., 555 F.Supp.2d 420, 444 (S.D.N.Y. 2008).
. E.g., Schultz v. Harrison Radiator Div. General Motors Corp., 90 N.Y.2d 311, 320-21, 660 N.Y.S.2d 685, 683 N.E.2d 307 (1997); Cumming v. Brooklyn City R.R. Co., 109 N.Y. 95, 98, 16 N.E. 65 (1888). See generally Joseph H. Ring, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1371-72 (1981).
. Reichman v. Warehouse One, Inc., 173 A.D.2d 250, 569 N.Y.S.2d 452, 453 (1st Dep't 1991) (quoting 36 N.Y. Jur.2d Damages, § 15).
. Id.
. See Steitz v. Gifford, 280 N.Y. 15, 20, 19 N.E.2d 661 (1939) ("In actions in tort, there are certain well-settled and universally recognized rules relating to damages recoverable ... [including that] [Reasonable certainty as to the amount ... is required.”). See also Behrens v. Metropolitan Opera Ass’n, Inc., 18 A.D.3d 47, 794 N.Y.S.2d 301, 303 (1st Dep't 2005) ("In tort actions, an injured plaintiff may recover from the defendant all damages directly flowing from and as a natural consequence of the wrongful act, so long as the damages may be ascertained with reasonable certainty.”).
. See Steitz, 280 N.Y. at 20, 19 N.E.2d 661. See also Caudle v. Towers, Perrin, Forster & Crosby, Inc., 580 F.Supp.2d 273, 275 (S.D.N.Y. 2008) (declining to apply the reasonable certainty requirement when a plaintiff sought damages for insurance against future harm and for monitoring to detect future harm, rather than the "present value of a future loss”).
.See, e.g., Jarrett v. Madifari, 67 A.D.2d 396, 415 N.Y.S.2d 644, 649 (1st Dep’t 1979) (stating that plaintiff "must establish the propositions essential to his cause by a preponderance of the evidence” and explaining that "plaintiff is required to show with reasonable certainty that the injury resulted from the act of the defendant” (emphasis added)). See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir. 1982) ("To meet the 'reasonably certain’ standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the projected consequence will occur.” (applying District of Columbia law)). See generally Seybolt v. New York, Lake Erie & W. R.R. Co., 95 N.Y. 562, 570 (1884) ("[U]pon the trial of a civil action the party sustaining the burden of proof performs his obligation by presenting a preponderance of evidence.”); Grogan v. Gamer, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) ("Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions [arising under federal law] between private litigants unless particularly important individual interests or rights are at stake.” (quotation marks omitted)).
. Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 (1993). Accord id. ("Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision.” (citing, inter alia, Restatement (Second) of Contracts § 352 (1981))).
. See Sternfeld v. Forcier, 248 A.D.2d 14, 679 N.Y.S.2d 219, 219 & n. 2 (3d Dep’t 1998) (citing Ashland, 82 N.Y.2d at 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007). See also Firmes v. Chase Manhattan Automotive Finan. Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148, 160 (2d Dep’t 2008) (noting that the appellate divisions have uniformly required proof of an offset by "clear and convincing evidence that the result is highly probable”) (citing N.Y. C.P.L.R. 4545(c)).
. See, e.g., Ellis v. Emerson, 57 A.D.3d 1435, 870 N.Y.S.2d 190, 191-92 (4th Dep’t 2008) (overturning a jury verdict concerning future medical expenses); Bossio v. Fiorillo, 210 A.D.2d 836, 620 N.Y.S.2d 596, 598 (3rd Dep’t 1994) (upholding summaiy judgment against a plaintiff concerning increased risk of cancer).
.Presler v. Compson Tennis Club Associates, 27 A.D.3d 1096, 815 N.Y.S.2d 367, 369 (4th Dep't 2006) (quotation marks omitted). Accord Schultz v. Harrison Radiator, 90 N.Y.2d 311, 320-21, 660 N.Y.S.2d 685, 683 N.E.2d 307 (1997) (overturning a jury verdict based on insufficient certainty of the value of lost services); Jeffries v. 3520 Broadway Mgmt. Co., 36 A.D.3d 421, 827 N.Y.S.2d 136, 138 (1st Dep’t 2007) (overturning a jury verdict based on insufficient certainty of the value of future earnings). Even in this limited circumstance, New York courts have not consistently applied a heightened burden of proving reasonable certainty. See Kavanaugh v. Nussbaum, 129 A.D.2d 559, 514 N.Y.S.2d 55, 59 (2d Dep’t 1987) (allowing damages for lost future earnings even though "the computation of damages in a case such as this 'is necessarily speculative and fraught with difficulties’ ") (quoting Snow v. State of New York, 98 A.D.2d 442, 469 N.Y.S.2d 959, 964 (2d Dep’t 1983), aff'd, 64 N.Y.2d 745, 485 N.Y.S.2d 987, 475 N.E.2d 454 (1984)).
. There is significant room for debate concerning the types of steps that a reasonable well owner would need to take before an injury is established, but — at a minimum — if the level of contamination is such that a reasonable well-owner would take substantial measures to remove the MTBE from the water, then an injury has occurred.
. See Denney, 443 F.3d at 265.
. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The City need not show, however, that it is about to turn on its wells. If the City can show that its wells will become injured immediately upon turning them on, it need not go through the curious exercise of turning the wells on to injure itself. In alleging that the wells will become contaminated once they are turned on, the City alleges a current threatened harm, which is sufficient to support standing. See Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir. 1978) (holding that plaintiffs had standing for claims related to fire hazards— despite inability to show that a fire was likely — because they "need not wait for the conflagration before concluding that a real and present threat exists”). See also Loa-Herrera v. Trominski, 231 F.3d 984, 987-88 (5th Cir. 2000) ("[Ajctual injury is not constitutionally required. Mere threatened injury is sufficient, and the threat in this case is real.”).
. The questions of ripeness and the certainty of future harm are analytically distinct. By bringing a claim before threatened injury has become a present or past harm, a plaintiff runs the risk that it will not be able to prove damages with sufficient certainty. However, that does not render the suit unfit for adjudication.
. Cf. New York v. United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (finding challenge to a regulation ripe several years before the regulation's effective date because the plaintiff "must take action now in order to avoid the ... provision’s consequences. ”).
. See In re MTBE Prods. Liab. Litig., No. 00 MDL 1898, 2007 WL 1601491, at *6 (S.D.N.Y. June 4, 2007) (holding — under New York law — that "a plaintiff’s claims accrue when it first knows of both (1) the presence of MTBE at a level sufficient to constitute an injury and (2) the harmful impact of MTBE on drinking water.”). Notably, Exxon Mobil intends to argue at trial that the claims for Station Six are already time-barred.
. 36 N.Y. Jur.2d Damages, § 113.
. 273 N.Y. 119, 125, 7 N.E.2d 10 (1937).
. See id. at 130, 7 N.E.2d 10.
. Id. (emphasis added).
. Notably the Court of Appeals noted that the lack of licenses "may be considered in mitigation of damages and even perhaps to the entire elimination thereof.” Id. On remand, the Fourth Department of the Appellate Division held that the plaintiff was not entitled to any damages because plaintiff had not "shown that it can obtain a permit from the United States Government to dredge sand.” Squaw Island Freight Terminal Co., Inc. v. City of Buffalo, 256 A.D. 582, 11 N.Y.S.2d 459, 461 (4th Dep’t 1939) (emphasis added). See id. (stating that the Court of Appeals "h[eld] in effect that the plaintiff has not suffered any loss by the destruction of its sand and gravel under water unless it has or can obtain the right to take the same from the bed of the river” (emphasis added)). Thus the requirement that a plaintiff "might” use the harmed property creates an evidentiary burden concerning feasibility, if not likelihood.
.To be sure, the City will not be able to use these wells until a facility is built to treat the contaminated water, but the same is true in every case where injury to property requires extensive remediation. The inevitable delay between contamination and sufficient treatment to allow renewed use of property does not render speculative a claim for funds needed to render property usable again. Exxon argues that this case is special because other contamination has prevented — and continues to prevent — the City from using these wells. However it would be unreasonable to require the City to first remedy one set of contaminants before it is able to seek damages resulting from a second form of contamination. The presence of multiple pollutants does not negate the injury and "is but a factor to be weighed by a jury in their determination of damages” and does not negate a later injury. Cornell v. Exxon Corp., 162 A.D.2d 892, 558 N.Y.S.2d 647, 651 (3rd Dept. 1990).
. That is, if the City had spent only a few hundred dollars to design treatment facilities for these wells, this may persuade the jury that the City is not committed to using these wells in the future. If the City spent tens of thousands of dollars on this, however, a different picture might emerge.
. Exxon recently requested that Phase III be divided into several discrete phases. This late-breaking request is not addressed in this opinion.
Reference
- Full Case Name
- In re METHYL TERTIARY BUTYL ETHER (\MTBE\") PRODUCTS LIABILITY LITIGATION. This Document Relates to: City of New York v. Exxon Mobil Corporation"
- Cited By
- 1 case
- Status
- Published