In re Methyl Tertiary Butyl Ether Products Liability Litigation
In re Methyl Tertiary Butyl Ether Products Liability Litigation
Opinion of the Court
CORRECTED OPINION AND ORDER
I. INTRODUCTION
This is a consolidated multi-district litigation (“MDL”) relating to contamination — actual or threatened — of groundwater from various defendants’ use of the gasoline additive methyl tertiary butyl ether (“MTBE”) and/or tertiary butyl alcohol, a product formed by the breakdown of MTBE in water. In this case, the Commonwealth of Puerto Rico (the “Commonwealth”) alleges that defendants’ use and handling of MTBE has contaminated, or threatened to contaminate groundwater within its jurisdiction. Familiarity with the underlying facts is presumed for the purposes of this Order.
Currently before the court is a two-pronged motion for summary judgment premised on the Commonwealth’s alleged failure to trace certain defendants’ gasoline to the. trial sites at which those defendants are allegedly liable.
The first phase of this action requires the Court to determine the liability of a number of defendants at five different trial sites.
A. Gasoline Supply Chain in Puerto Rico
A brief note on the general workings of the gasoline supply chain in Puerto Rico is helpful to contextualizing the defendant-specific facts relevant to the instant motion. For the most part, gasoline in the Commonwealth is segregated, not commingled.
1. Exxon Mobil Corporation
One of the Certain Defendants moving for partial summary judgment on the Commonwealth’s strict liability and negligence claims is Exxon Mobil Corporation (“ExxonMobil”). The Commonwealth brings claims against ExxonMobil at the two Esso Standard Oil Company (“Esso”) trial sites, Esso CO-4564 (“Trial Site No.
The parties do not dispute that, since 1979, ExxonMobil has had very limited contacts with Puerto Rico.
These limited contacts extend to transactions related to the sale of neat MTBE. From 1982 to 1985, Exxon Chemical International Supply, S.A. (“ECIS”), an independent Panamanian corporation, sold limited amounts of neat MTBE to the Core Defendants, which they then shipped to their facility in Puerto Rico.
The Commonwealth also points to a 1982 exchange agreement (the “Exchange Agreement”) between Esso and Phillips 66 Company (“Phillips”) as potential evidence of ExxonMobil’s liability.
2. Core Defendants
The Core Defendants also seek partial summary judgment at the Esso trial sites, as well as at the Shell (“Trial Site No. 3”) and Total (“Trial Site No. 9”) trial sites. As noted above, from 1982 through the mid 1990s, the Core Defendants served as the primary supplier of MTBE gasoline to Puerto Rico. According to one of the Commonwealth’s experts, all of the gasoline manufactured by the Core Defendants during the time period from 1982 to 1994 contained some volume of MTBE.
From 1982 to 2000, the Core Defendants sold over 115 million barrels of gasoline— close to five billion gallons — to customers on the island of Puerto Rico.
A similar set of facts and allegations govern the Core Defendants’ sale of gasoline to USA Petroleum Corporation (“USA”) and Idemitsu Apollo Corporation (“IAC”).
While the Core Defendants dispute whether they could be classified as a “primary” supplier to USA and IAC, it is undisputed that from 1985 to 1992, the Core Defendants supplied a significant amount of gasoline to USA, just as they did to IAC from 1992 until at least 1997.
Lastly, the Core Defendants supplied over thirteen million barrels of gasoline to the Shell Company (PR) Ltd. (“SCPRL”) from 1983 to 1995.
3. HOVIC/HOVENSA Defendants
HOVIC and HOVENSA move for partial summary judgment on the Commonwealth’s negligence and strict liability claims asserted against them at the Shell and Texaco (“Trial Site No. 10”) trial sites, as. well as one of the two Esso trial, sites (Trial Site No. 6).
HOVIC owned the St. Croix refinery until October 1998, at which time ownership was transferred to HOVENSA.
The Commonwealth separately points to the Summary Charts as proof that HOVIC and HOVENSA supplied massive quantities of gasoline containing MTBE to SCPRL and Shell Western, as well as to Texaco Puerto Rico Inc. (“Texaco”), which were delivered to the Shell and Texaco trial sites, respectively. With respect to SCRPL and Shell Western, the Commonwealth’s Summary Charts display HOVIC and HOVENSA supplying nearly 440 million gallons of gasoline containing MTBE from 1995 to 2004.
B. History of Leaking Underground Storage Tanks at the Trial Sites During the Relevant Supply Periods
Each of the trial sites had underground storage tanks (“USTs”), which housed the gasoline supplied to that trial site. In this section, I review the facts regarding the USTs at each trial site for the relevant supply periods.
1. Trial Site No. 6
According to Marcel Moreau, a Commonwealth expert, Trial Site No. 6, one of the two trial sites at issue operated by Esso, has had a long history of releases and> contamination throughout- the 1980s and 1990s, with low level leaks continuing to the present.
2. Trial Site No. 5
As with Trial Site No. 6, Moreau documents a history of leaking USTs at Esso’s Trial Site No. 5, potentially resulting in ongoing MTBE contamination at the site from the 1990s to today.
3.Trial Site No. 9
Moreau also points to a history of releases and contamination at Total’s Trial Site No. 9 over the life of the facility. For instance, in 1992, the installation of groundwater monitoring wells revealed significant soil contamination which, according to Moreau, likely resulted from faulty piping and tank top fitting of the five USTs on site.
4. Trial Site No. 3
A history of gasoline releases at Shell’s Trial Site No. 3 dates back to at least July 1988, when a safety audit uncovered gasoline leaking from gaps in the pavement close to the gas pump islands.
5. Trial Site No. 10
According to Moreau, Texaco used “inferior methods of leak detection on its aging bare steel UST systems [at Trial Site No. 10] in the 1980s and 1990s.”
C. Chevron Defendants
The Chevron Defendants move for summary judgment on all claims against them due to lack of causation on various grounds. They allege that (1) there is no evidence that they refined, marketed, or supplied gasoline or products containing MTBE in Puerto Rico, (2) there is no evidence that they owned or operated gasoline service stations or USTs in Puerto Rico that discharged gasoline containing MTBE, (3) they are not successors-in-interest to non-party refinery owners, and (4) there is no evidence that they caused the Commonwealth any injuries.
The key factual inquiry relevant to the Chevron Defendants’ motion is whether they are successors-in-interest to, or otherwise managed, the Bayamon Refinery in Puerto Rico. Among several documents the Commonwealth offers to support such a finding is a report from the United States Environmental Protection Agency (“EPA”), which, according to the Commonwealth, implicates Chevron Corporation and Chevron USA in operating, owning, or controlling the Bayamon Refinery.
The Chevron Defendants dismiss the Commonwealth’s evidence as irrelevant and inadmissible, insisting that they did not own or operate the Bayamon Refinery.
III. LEGAL STANDARD
Summary judgment is appropriate “only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party’s favor, there is ‘no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.’ ”
“[T]he moving party has the burden of showing that no genuine issue of material fact exists and that the undisputed facts entitle [it] to judgment as a matter of law.”
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
IV. APPLICABLE LAW
Causation is a necessary element of the Commonwealth’s strict product liability and negligence claims.
Significantly, in City of New York v. ExxonMobil Corporation, a related MTBE proceeding in this MDL, I denied defendants’ motion for judgment as a matter of law in refusing to overturn a jury verdict that relied on circumstantial evidence 'to identify manufacturer defendants responsi
By contrast, in City of Fresno v. Chevron USA another related MTBE proceeding in this MDL, defendants prevailed on a causation motion similar to the one brought here where plaintiff, unable to rely on a commingled products theory, provided ‘ only vague evidence of gasoline deliveries post-dating reported discharges at the service stations at issue.
V. DISCUSSION
A. No Genuine Issue of Material Fact Precludes Judgment in Favor of ExxonMobil on Claims of Negligence and Strict Liability
ExxonMobil’s liability hinges on whether ExxonMobil was a party to the Exchange Agreement such that the gasoline supplied in Puerto Rico by the Core Defendants to Esso “should be attributed as being supplied” to ExxonMobil.
ExxonMobil moves to strike the'Commonwealth’s supposed “new theory of liability” — that ExxonMobil was a party to the Exchange Agreement and is therefore hable for the gasoiihe the Core Defendants supplied to Esso — on the grounds that the Commonwealth’s contention interrogatories were insufficient to put ExxonMobil on notice of this theory, and that the theory was disclosed too late.
At bottom, the evidence in the record does not present a genuine issue of fact over whether ExxonMobil was a party to the Exchange Agreement. The relevant documents show that the parties to the Exchange Agreement were Esso and Phillips, not ExxonMobil, and that the separate sales agreement between Esso and ExxonMobil entailed delivering gasoline to Phillips on the mainland, not in Puerto Rico. Based on these undisputed facts, the Commonwealth offers only speculation that the Exchange Agreement and separate sales agreement combined to place ExxonMobil “within the chain of supply of [the Core Defendants’] MTBE gasoline to Esso.”
B. Genuine Issues of Material Fact Preclude Judgment for the Core Defendants and HOVIC and HOVENSA
Whether the Core Defendants and HOVIC and HOVENSA are liable for the Commonwealth’s negligence and strict liability claims, however, present issues for a jury to resolve because the factual underpinnings of the causation inquiry are heavily disputed. In resolving those disputes of fact in the Commonwealth’s favor, a rational jury could find by a preponderance of the evidence that these defendants’ MTBE gasoline is directly traceable to the trial sites at issue.
This is a close call because the Commonwealth’s product tracing theory depends on a jury connecting many pieces of circumstantial evidence to find the Core Defendants and HOVIC and HOVENSA liable at the trial sites where they are alleged to have contributed to MTBE contamination. I am mindful of my opinion in City of Fresno, which signaled to MTBE plaintiffs that speculative arguments lacking substantial factual support cannot survive summary judgment motions for lack of causation in this MDL. But there is just enough factual support in this case — more than in City of Fresno — for the Commonwealth to defeat a pre-trial motion for lack of causation as to the Core Defendants and HOVIC and HOVENSA. This is especially true in light of Puerto Rico law, under which causation is satisfied as long as there is a “reasonable basis [to conclude] that it is more likely than not that the conduct of the defendant was a substantial
Unlike in City of Fresno, where the evidence concerning MTBE supply related to deliveries that occurred almost definitively after reported discharges at the service stations at issue, there is considerable evidence here that MTBE gasoline attributable to the Core Defendants and HOVIC and HOVENSA reached the trial sites before and contemporaneously with documented releases of gasoline due to UST leaks.
For instance, at Trial Site No. 6, there is evidence that substantial releases occurred throughout the 1980s and into 1990, both during and after the Core Defendants’ reign as a substantial — if not overwhelmingly dominant — supplier of gasoline to the island of Puerto Rico. 2012 contamination readings indicate possible residual leaks during the time period that HOVIC and HOVENSA supplied gasoline to the island. Similar evidence regarding potential leaks throughout the 1990s at Trial Site Nos. 5 and 9 overlaps with the Core Defendants’ supply of gasoline to Puerto Rico. At Trial Site No. 3, gasoline releases dated as far back as 1988, when the Core Defendants supplied gasoline to the island, and quite possibly continued through HOVIC and HOVENSA’s period of supply, with extensive contamination detected in 2001 after UST removal. And at Trial Site No. 10, contamination detection coinciding with the 2006 removal of USTs, just one year after the end of the HOVIC and HOVENSA main supply period, indicates that their gasoline supply may have been a substantial factor in causing the MTBE contamination at the site.
Through a motion to strike, HOVIC and HOVENSA ask the Court to disregard the Summary Charts, which contain data related to HOVIC and HOVENSA’s significant supply of gasoline to Puerto Rico. However, the Summary Charts are admissible under Rule 1006 of the Federal Rules of Evidence (“FRE”) because all of the underlying documents, many of which HOV-IC and HOVENSA in fact produced in discovery, are admissible. The parties are engaged in ongoing efforts to negotiate a stipulation for the authenticity of documents.
To be sure, successfully tracing the- gasoline from a specific supplier to a trial sité, and proving that that supplier’s gasoline contained MTBE and was present during a release at that trial site, is a tall order. And some, though not nearly all, of the Commonwealth’s arguments regarding leaking USTs are somewhat similar to the overly speculative ones I deemed insufficient to withstand summary judgment in City of Fresno. But because there is stronger evidence here, I cannot, as defendants urge, rule on causation as a matter of law. There is an important, fine-tuned distinction between the challenge of proving liability based on disputed circumstantial evidence at trial, and the burden a plaintiff must meet to survive summary judgment. Defendants conflate the two. A reasonable jury, resolving most or all of the factual disputes in the Commonwealth’s favor, could arrive at a reasonable conclusion that the suppliers’ conduct was, more likely than not, a substantial factor in bringing about the Commonwealth’s alleged harm. Simply put, there are important factual disputes that prevent the Court from granting summary judgment on causation as it pertains to the Core Defendants and HOVIC and HOVENSA.
C. Whether Chevron Corporation and Chevron USA Once Owned, Controlled or Managed the Bayamon Refineiy Is Disputed
At this stage, it is unclear whether Chevron Corporation and/or Chevron USA owned, controlled, or managed the Bayamon Refinery.
VI. CONCLUSION
For the foregoing reasons, the motion for summary judgment is GRANTED in part and DENIED in part, and the motions to strike are DENIED. The Clerk of the Court is directed to close the motions (Dkt. Nos. 474, 544, 568).
SO ORDERED.
. See Case Management Order No. 117 (the "Trial Site Matrix"), Dkt. 457 (charting the claims asserted against each defendant' at each trial site at issue).
. For a list of the defendants moving for partial summary judgment, see Ex. A to the Memorandum of Law in Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Def. Mem.”). I will refer to these movants collectively as "Certain Defendants.” Separately, in support of the motion for partial summary judgment, some of the Certain Defendants have filed two motions to strike, which I address and decide in connection with my discussion of the partial summary judgment motion. Defendants Shell Oil Company, Shell International Petroleum Company Limited, and Shell Western Supply and Trading Limited (collectively, the "Shell Defendants”) join in the motion for partial summary judgment on the ground that the Commonwealth has not traced MTBE from the Shell Defendants to any trial site. However, the facts relevant to the Shell Defendants are set forth in their separate motion for summary judgment on all claims asserted against them. See Dkt. 467. I will, if necessary, address causation as it relates to the Shell Defendants when I rule on their separate summary judgment motion.
.For a list of all of the Chevron Defendants, see Def. Mem. at n. 3.
. The facts recited below are drawn from the pleadings, the parties’ Local Civil Rule 56.1 Statements, the declarations submitted in connection with this motion, and the exhibits attached thereto. These facts are undisputed unless otherwise noted. Where disputed, the facts are viewed in the light most favorable to the nonmoving party. See Beard v. Banks, 548 U.S. 521, 529-30, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006).
. See Trial Site Matrix.
. The voluminous Rule 56.1 submissions, which are chock-full of disputed facts and statistics, are difficult to distill into one section of an opinion. This section therefore provides an overview of the most pertinent facts, not a comprehensive summary of all of the facts. As the Court has repeatedly cauhoned the parties to this MDL, summary judgment is only available when there are no genuine disputed issues of material fact.
. See Plaintiff's Rule 56.1 Statement in Opposition to Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("PI. 56.1”) ¶ 20.
. See, e.g., id. ¶¶ 20, 64,
. Plaintiff’s Memorandum of Law in Opposition to Certain Defendants’ Motion for Summary Judgment for Lack of Causation (“Pi. Mem.”) at 8.
. See'id.
. See id.
. See Def. Mem. at 7.
. See Rule 56.1 Statement in Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Def. 56.1”) 1110.
. See id. ¶¶ 13, 17.
. See id. ¶ 19.
. See id. ¶¶ 19-21.
. See id. ¶ 15.
. See id.
. See id. 1116.
. See Exxon Mobil Corporation’s Memorandum of Law in Support of Motion to Strike Plaintiffs’ New Theory of Liability in Opposition to Defendants’ Motion for Summary Judgment for Lack of Causation ("Def. ExxonMobil MTS Mem.”).
. See Exchange Agreement, Ex. A to 11/26/14 Reply Declaration of Lisa A. Gerson, counsel for ExxonMobil, in Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Gerson Reply Decl.”).
. See id.
. See Reply Memorandum in Further Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation (“Reply Mem.”) at 3-4.
. See id.
. See PI. 56.1 ¶ 17. Defendants do not dispute the expert opinion as stated, but attack the assumption on which it rests as being unsupported by direct evidence.
. See id. ¶ 10.
. See id. ¶ 18. Because the parties dispute the exact totals, the figures recited above reflect the mínimums conceded by defendants. Defendants also dispute that all of that gasoline contained MTBE.
.See id. ¶¶ 21-22.
. See id. ¶ 24.
. See id. ¶ 25.
. See id. ¶ 61.
. See id: ¶¶ 29-36.
. See id. ¶ 75.
. See id. ¶¶ 74, 76:
. See id. ¶ 30.
. See id. ¶ 31-34.
. See id. ¶ 82. The Coré Defendants contest the Commonwealth’s allegation that IAC supplied gasoline directly to GPR’s retail stations, acknowledging only that IAC sold, gasoline to GPR generally. See Defendants’ Response to Plaintiff’s Rule 56.1 Statement in Opposition to Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Def. Reply 56.1”) ¶ 82. The Core Defendants also refute any implication that their gasoline specifically reached Trial Site No. 9. See id.
. See Def. Reply 56.1 ¶ 37. As;with USA, IAC, and Esso, the Core Defendants were not the only suppliers to SCRPL, but they were the largest suppliers.
. See id. ¶ 39.
. See id. ¶ 95.
. It bears mentioning that HOVIC and HOVENSA do not move for partial summary judgment for lack of causation as to the other Esso trial site (Trial Site No. 5).
. In support of its opposition, the Commonwealth provides charts summarizing data reflecting (1) the annual distribution of gasoline on the island of Puerto Rico by majors drawn from a report of the Department of Consumer Affairs (the "DACO Report”) and (2) data reflecting the annual supply of gasoline to majors by HOVIC and HOVENSA. See Ex. 1 to 11/7/14 Declaration of Nathan P. Short, counsel to the Commonwealth, in Support of Plaintiff’s Opposition to Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Summary Charts”) ("Short Decl.”). Included in the charts is a comparison of these two data sets, providing the percentage that HOVIC and HOVENSA’s supply bears to the annual distributions of gasoline on the island by the majors. HOVIC and HOVENSA vigorously dispute the relevance and admissibility of those charts in a separate motion to strike. See Defendants Hess Oil Virgin Island Corp.’s and Hovensa L.L.C.’s Memorandum of Law in Support of Motion to Strike Plaintiffs’ Exhibit 1 Attached to Nathan Short’s Declaration ("HOVIC/HOVENSA MTS Mem.”). The Short Declaration was so contested that the parties have burdened the Court not only with extensive briefing, but also four separate post-briefing letters squabbling over new arguments raised in HOVIC and HOVENSA’s reply brief.
. See PL ¿6.1 ¶ 44.
. See id. Ml 43, 45.
. See id. ¶ 49.
. See id. ¶ 51.
. See id. ¶ 53.
. See id. ¶¶ 57, 59.
. See id. ¶ 111.
. See id. ¶ 67.
. See id.
. PL Mem. at 18.
. See id. at 19.
.See Pl. 56.1 ¶ 72.
. See id.
. See id.
. See PL Mem. at 20.
. See PL 56.1 ¶ 72.
. See id. ¶ 87.
. See id.
. See id, ¶ 88.
. See id. ¶¶ 89-90.
. See id. ¶ 91.
. See id. ¶¶ 92-93.
. See id. ¶ 101.
. See id. HI 02.
. See id. ¶¶ 104-105.
. See id. ¶ 106.
. Id. ¶ 112. Defendants dispute this characterization.
. See id. ¶ 113.
. See id. ¶ 114.
. See Plaintiff’s Response to Rule 56.1 Statement in Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("PI. Reply 56.1”) ¶¶ 61, 65-66, 69.
. Id. ¶ 65.
. See id; Press Clipping, Ex. 2 to 11/7/14 Declaration of Dave E. Blum, counsel for Commonwealth, in Support of Plaintiff's Opposition to Certain Defendants’ Motion for Summary Judgment for Lack of Causation ("Blum Decl.”).
. See Pl. 56.1 ¶ 69; Marti v. Chevron U.S.A. Inc. et al., 772 F.Supp. 700 (D.P.R. 1991).
. Marti, 772 F.Supp. at 702.
. See Def. Mem. at 15-17.
. See id. at 16.
. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d Cir. 2014) (quoting Fed.R.Civ.P. 56(c)) (some quotation marks omitted).
. Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff'd, - U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (quotations and alterations omitted).
. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations omitted).
. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotation marks and citations omitted).
. Id. (quotation marks and citations omitted).
. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir. 2012).
. Barrows v. Seneca Foods Corp., 512 Fed.Appx. 115, 117 (2d Cir. 2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)).
. See, e.g., In re MTBE, 591 F.Supp.2d 259, 266 (S.D.N.Y. 2008).
. See id. The Commonwealth has stated that it will rely only on traditional causation, not on a commingled products theory, to trace defendants’ gasoline directly to a station at issue. See Def; 56.1 ¶ 2. Ultimately, this requires the Commonwealth to show that defendants’ MTBE gasoline was present at the stations at issue when releases occurred. See In re MTBE ("City of Fresno"), 980 F.Supp.2d 425, 457 (S.D.N.Y. 2013).
. Prado Alvarez v. R.J. Reynolds Tobacco Co., 313 F.Supp.2d 61, 76 (D.P.R. 2004) (emphasis added).
. See Perez-Trujillo v. Volvo Car Corp., 137 F.3d 50, 55 n. 10 (1st Cir. 1998) (noting that “strict liability claimants may resort to an array of circumstantial evidence”); Zambrana v. Hospital Santo Asilo de Damas, 109 D.P.R. 517, 525, 9 P.R. Offic. Trans. 687 (1980) (stating that “the law does not require that a fact be proved with mathematical accuracy, and that circumstantial evidence is intrinsically the same as direct evidence”).
. See 739 F.Supp.2d 576, 588 (S.D.N.Y. 2010), aff'd, 725 F.3d 65 (2d Cir. 2013).
. See id.
. See 980 F.Supp.2d at 458.
. Id. at 460 (emphasis added).
. See PL Mem: at 10.
. See City of Fresno, 980 F.Supp.2d at 458. The Commonwealth does not seriously contest this proposition. See Pl. Mem. at 10-11.
. See generally Def. ExxonMobil MTS Mem.
. See Memorandum of Law in Opposition to Exxon Mobil .Corporation's Motion to Strike Plaintiff's Evidence in Opposition to Defendants’ Motion for Summary Judgment for Lack of Causation ("Pl. ExxonMobil MTS Mem.”) at 8.
. See generally id.
. PL Mem. at 11. As ExxonMobil accurately observes, the case the Commonwealth relies on to support its supply chain theory is inapposite. In Hasbrouck v. Texaco, Inc., 663 F.2d 930, 933 (9th Cir. 1981), the court examined whether defendants' sales occurred "in commerce,” as that term is used in the Robinson-Patman Act. Putting aside the fact that the instant motion has nothing to do with antitrust, the sales agreement to which ExxonMobil was a party, unlike the underlying agreement in Hasbrouck, was not an exchange agreement, and it did not cover the gasoline involved in this case. See Reply Mem. at 4 n. 4.
. See Brown, 654 F.3d at 358 ("Where the moving party demonstrates the absence of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”) (citations and quotations omitted).
. Because the Commonwealth’s theory that ExxonMobil could be held liable via the Exchange Agreement was neither novel nor unfairly surprising, ExxonMobil’s motion to strike is denied.
. Prado Alvarez, 313 F.Supp.2d at 76; see also City of New York, 725 F.3d at 115-16 (upholding á finding of liability based on largely circumstantial evidence).
. See Pi. 56.1 ¶¶67, 72, 84-93, 101-106, 112-116.
. While I did not find Moreau’s general testimony in City of Fresno regarding service station releases convincing enough to defeat summary judgment, his testimony in this case is more detailed and less speculative due to additional circumstantial evidence, especially concerning the realities of gasoline distribution and supply in Puerto Rico. In City of Fresno, plaintiff repeatedly offered a bare, unsupported expert opinion that releases "were routine,” without providing much in the way of specifics. See Plaintiff City of Fresno’s Opposition to Defendants’ Motion for Summary Judgment for Lack of Evidence Pertaining to Causation, No. 04 Civ. 4973 (S.D.N.Y. Apr. 13, 2013) (Dkt. 193) at 22. By contrast, the facts here support more specific conclusions about how and when releases occurred, as well as more general conclusions regarding the nature of the USTs.
. Whether there was any actual injury at Trial Site No. 10 is the subject of a separate summary judgment motion, which I will address in a separate opinion. See Dkt. 463.
. See Plaintiff’s Opposition to Defendants HOVIC and HOVENSA's Motion to Strike Plaintiff's Exhibit 1 Attached to Nathan Short's Declaration ("HOVIC/HOVENSA MTS Opp.”) at n. 7.
. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003), cert. denied, 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004).
. See HOVIC/HOVENSA MTS Opp. at 4 & n. 4.
. The Commonwealth has not opposed summary judgment for Chevron International Oil Company, Inc., Chevron Caribbean Inc., and Chevron Estrella Puerto Rico Inc. Accordingly, summary judgment is granted to those Chevron entities on all of the Commonwealth's claims.
. PI. 56.1 ¶ 65.
. Marti, 772 F.Supp. at 702.
. Press Clipping, Ex. 2 to the Blum Decl. (emphasis added). The clipping quoted a senior vice president at Chevron USA — -not Chevron Corporation.
. See Reply to Plaintiffs’ Response to Rule 56.1 Statement in Support of Certain Defendants’ Motion for Summary Judgment for Lack of Causation ¶ 65. This evidence is relevant to historical ownership or operation of the refinery — taken together, each piece of evidence "has a tendency to make” the fact of ownership or operation more probable. FRE 401.
Reference
- Full Case Name
- In re METHYL TERTIARY BUTYL ETHER (\MTBE\") PRODUCTS LIABILITY LITIGATION"
- Cited By
- 2 cases
- Status
- Published