DocketNumber: Master File No. 1:00-1898; MDL No. 1358 (SAS); No. M21-88
Citation Numbers: 279 F.R.D. 131
Judges: Scheindlin
Filed Date: 10/25/2011
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
1. INTRODUCTION
In this consolidated multi-district litigation (“MDL”), plaintiffs seek relief from contamination, or threatened contamination, 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 natural degradation of MTBE in water. In February 2011, Orange County Water District (“OCWD” or “the District”) moved for partial summary judgement under Federal Rule of Civil Procedure 56(a) on three claims against certain defendants associated with fourteen gasoline service station sites.
A. Summary Judgement
Summary judgment is appropriate “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.”
“The moving party bears the burden of establishing the absence of any genuine issue of material fact.”
In deciding a motion for summary judgment, a court must “‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ”
B. Expert Testimony and Rule 26
Rule 26 of the Federal Rules of Civil Procedure requires that all expert witnesses submit a written report if “the witness is one retained or specially employed to provide expert testimony on the case or one whose duties as the party’s employee regularly involve giving expert testimony.”
Federal Rule of Evidence 702 governs expert opinion testimony.
C. Rule 37(c)
Federal Rule of Civil Procedure 37(c) states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless.”
III. DISCUSSION
In its earlier motion, OCWD sought to recover costs associated with (1) testing for MTBE at drinking water production wells associated with stations where MTBE was released and (2) retaining consultants to investigate and characterize groundwater impacts from MTBE.
A. Orange County Water District v. Arnold Engineering
OCWD asks this Court to reconsider its denial of partial summary judgment with respect to investigative costs in light of the California Court of Appeals decision in Orange County Water District v. Arnold Engineering,
State appellate decisions are ordinarily binding on federal courts applying state law.
In the course of finding that OCWD was bringing suit in its own name, the Arnold Engineering court stated that:
Indeed, regardless whether the Water District’s interest in the groundwater is classified as regulatory, proprietary, or usufructuary, the Water District is entitled to recover monetary damages for the investigation and remediation costs it incurred and will incur in the future. As explained both the Water Code and the Health and Safety Code authorize the Water District to bring an action in its own name to recover investigation and remediation costs it incurred without regard to the particular interest the Water District holds in the contaminated groundwater.32
OCWD now points to this statement and argues that the Arnold Engineering court “interpreted the remedies provisions of [the OCWD Act] as authorizing recovery of investigative costs.”
B. Non-Investigative Costs
1. Herndon’s Declaration
In response to the June 20 Opinion and Order, OCWD now offers a declaration by its Chief Hydrogeologist, Roy Herndon, to ar
Much of Herndon’s declaration, however, is not based on his perceptions, but on his experience and specialized knowledge. For example, Herndon’s declaration covers, among other things, the typical costs of remediating groundwater contamination, typical groundwater flow rates, the extent of the MTBE off-site migration—which was based on his review of consultant and expert reports rather than his own investigation—as well as the significance of OCWD’s commitment of funds for “drilling borings and collecting depth-specific ground water samples” to OCWD’s remediation efforts.
Although the Herndon declaration may contain expert testimony, under Rule 26(a)(2)(A), defendants are not entitled to an expert report unless Herndon is “a witness
Defendants Exxon Mobil Corporation and ExxonMobil Oil Corporation (“ExxonMobil”) separately move to strike portions of Herndon’s declaration that reference former Mobil station # 18-HDR, located at 3195 Harbor Boulevard, Costa Mesa, CA.
2. Costs Associated with Testing Production Wells and Commissioning Consultant Reports
Although OCWD may use much of Herndon’s declaration, defendants are still entitled to partial summary judgment. OCWD’s motion for partial summary judgment sought to
OCWD asks that if the Court enters partial summary judgment against OCWD, the Court clarify that it is doing so because OCWD’s claims under the OCWD Act are not ripe and that OCWD may seek relief in the future under the Act with respect to “reasonable costs incurred.”
C. OCWD’s Trespass Claim
The June 20 Opinion and Order also denied OCWD’s motion for partial summary judgment with respect to its claim for tres
In their response, OCWD contends that defendants have not cited any authority that a possessory interest in groundwater must be exclusive of all others before the holder of that interest may bring a trespass claim based upon contamination.
IV. CONCLUSION
For the reasons previously stated, defendants’ motion to strike the declaration of Roy Herndon is denied; however ExxonMobil’s motion to strike portions of the declaration relating to Mobil # 18-HDR is granted. The Clerk of the Court is directed to close these motions (Docket Nos. 276 and 277). Furthermore, partial summary judgment is entered in favor of the defendants for OCWD’s claims for costs associated with testing production wells and commissioning consultant reports as well as for OCWD’s claim for trespass.
SO ORDERED.
. The sites included in the motion were: Arco # 1887; Arco # 1905; Chevron # 9-5401; Chevron #9-1921; Mobil # 18-JMY; Mobil #18-G6B; Shell #6502; Texaco #121681; Unocal #5792; Unocal #5226; Unocal # 5376; Unocal #5123; G & M Oil #4; G & M Oil #24.
. See In re MTBE Prods. Liab. Litig., No. 1:00-1898, MDL 1358, M21-88, 824 F.Supp.2d 524, 528-33, 2011 WL 2565771, at *1-3 (S.D.N.Y. June 20, 2011).
. Fed.R.Civ.P. 56(a).
. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008)).
. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir.2010).
. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.2009).
. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010)).
. Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)).
. Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (emphasis removed).
. Brod, 653 F.3d at 164 (quoting Wilson v. Northwestern Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.2010)).
. Fed.R.Civ.P. 26(a)(2)(B).
. Fed.R.Civ.P. 26(a)(2)(D).
. Fed.R.Evid. 702.
. Id.
. United States v. Glenn, 312 F.3d 58, 67 (2d Cir.2002) (quoting Fed.R.Evid. 701).
. Id. (quoting United States v. Rea, 958 F.2d 1206, 1215 (2d Cir.1992)). Accord State of New York v. Solvent Chem. Co., Inc., 685 F.Supp.2d 357, 419 (W.D.N.Y.2010) ("Rather, a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.”).
. Solvent Chem., 685 F.Supp.2d at 419 (citing Moore’s Federal Practice § 26.23[2][a][i]).
. Fed.R.Civ.P. 37(c)(1).
. Ebewo v. Martinez, 309 F.Supp.2d 600, 606 (S.D.N.Y.2004) (citations omitted).
. See Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgement ("PI. Mem. [Partial Summary Judgment]") at 2 ("The District has initiated remedial action with respect to each of the stations for which the District seeks partial summary judgment, and the District now seeks partial summary judgment with respect to the defendants' liability for the costs of that remedial action."). See also id. at 6-7.
. See In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 534-37, 2011 WL 2565771, at *5.
. See id.
. See 196 Cal.App.4th 1110, 127 Cal.Rptr.3d 328 (2011).
. See Plaintiff Orange County Water District’s Response to Court's Order to Show Cause Why Partial Summary Judgment Should Not Be Granted to Defendants with Respect to OCWD Act Claims for Investigatory Costs and Trespass Claims ("OCWD Mem.”) at 1.
. Id. at 2.
. See Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.1999).
. See Arnold Eng’g, 127 Cal.Rptr.3d at 331.
. Id. at 336.
. See id. In Clancy, the California Supreme Court disqualified Attorney James Clancy from representing the City of Corona in prosecuting abatement actions arising under a new city ordinance. People ex rel. Clancy v. Superior Court, 39 Cal.3d 740, 743, 218 Cal.Rptr. 24, 705 P.2d 347 (1985). The court held that the contingency fee arrangement between the City and Clancy was prejudicial because "there is a class of civil actions that demands the representatives of the government to be absolutely neutral. This requirement precludes the use in such cases of a contingent fee arrangement.” Id. at 748, 218 Cal.Rptr. 24, 705 P.2d 347. In Santa Clara, the California Supreme Court narrowed Clancy’s, holding and held that the potential conflict of interest arising from contingency fee arrangements did "not necessarily mandate disqualification in public-nuisance cases when fundamental constitutional rights and the right to continue operation of an existing business are not implicated. Instead, retention of private counsel on a contingent-fee basis is permissible in such cases if neutral, conflict-free government attorneys retain the power to control and supervise the litigation.” County of Santa Clara v. Superior Court, 50 Cal.4th 35, 112 Cal.Rptr.3d 697, 235 P.3d 21, 36 (2010).
. Arnold Eng'g, 127 Cal.Rptr.3d at 336.
. Id. at 339 (emphasis added).
. OCWD Mem. at 4.
. See, e.g., Appellants’ Joint Opening Brief, No. G043502, 2010 WL 3866867, at *11 (listing the issues on appeal without mentioning investigative costs).
. In fact, the Arnold Engineering court seems to ignore the difference between the two categories of costs altogether. For example, the court first noted that "The Water District’s pleading makes clear that ... this is an action to recover remediation costs” but then later states that OCWD's first cause of action asked for "recover[y] [of] all costs it paid, or will pay in the future, to investigate and remediate the groundwater contamination.” Arnold Eng’g, 127 Cal.Rptr.3d at 337 (emphasis added).
. See id. at 339 ("We conclude the trial court correctly determined the Water District's lawsuit is essentially an action seeking to recover the costs to investigate and remediate the contaminated groundwater, not a public nuisance abatement action prosecuted on the public's behalf. Clancy and Santa Clara do not apply to the Water District’s lawsuit.”) (emphasis added).
. See In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 534-37, 2011 WL 2565771, at *5.
. OCWD Mem. at 6.
. See Defendants’ Motion to Strike Roy Herndon’s Declaration (“Def. Mot. to Strike") at 1 ("Because OCWD failed to disclose Mr. Herndon’s expert opinions in a written report by the deadline in compliance with the Court’s prior orders, his declaration is both improper and prejudicial, and the Court should strike it entirely."). See also Defendants’ Reply to Plaintiff Orange County Water District’s Response to Show Cause Order ("Def. Mem.") at 6. n. 5.
. See Plaintiff Orange County Water District's Opposition to Defendants' Motion to Strike the July 25, 2011, Declaration of Roy Herndon in Support of Orange County Water District's Response to Order to Show Cause Re Summary Judgment ("OCWD Opp. to Def. Mot. to Strike”) at 2-3.
. See id. at 3.
. Id. at 2. Specifically, OCWD argues that "[a] substantial portion of Mr. Herndon’s declaration, however, simply relates facts concerning the District's practices and internal procedures for addressing groundwater contamination within the District’s service area.” Id.
. 7/25/11 Declaration of Roy Herndon, Chief Hydrogeologist for OCWD, in Support of Plaintiff OCWD's Response to Court’s Order to Show Cause Why Partial Summary Judgment Should Not Be Granted to Defendants with Respect to OCWD Act Claims for Investigatory Costs and Trespass Claims ("Herndon Decl.”) ¶¶ 2, 5, 6, 8.
. See Fed.R.Evid. 701 (stating that lay opinion must be "rationally based on the perception of the witness”). See also Solvent Chem., 685 F.Supp.2d at 420 (classifying portions of testimony as expert opinion where witness relies on specialized and particularized knowledge gained from professional experience) ("Mr. Brown provided testimony about his direct involvement in the remediation of Gill Creek which was rationally based on his first-hand perception.... [However, the] testimony regarding Solvent’s liability for a share of the common costs associated with the entire Gill Creek remediation project represents Mr. Brown's opinion on allocation based not on his experience as a percipient witness, but rather on his specialized knowledge gained as a result of his extensive experience as a chemical and environmental engineer with overall responsibility for Olin’s environmental remediation affairs, as well as his particularized knowledge of the Gill Creek remediation project gained by virtue of his role as team leader/liaison with Dupont and the DEC").
. Solvent Chem., 685 F.Supp.2d at 421. Accord Bank of China v. NBM LLC, 359 F.3d 171, 182 (2d Cir.2004) (allowing testimony grounded in the investigation employee conducted in his role at the bank because the statements were based on his perceptions but striking portions that were not a result of his investigation) (“However, to the extent Huang’s testimony was not a product of his investigation, but rather reflected specialized knowledge he has because of his extensive experience in international banking, its admission pursuant to Rule 701 was in error.”).
. Fed.R.Civ.P. 26(a)(2)(B).
. Id.
. See Def. Mot. to Strike at 1 ("The Court specifically held that Mr. Herndon had to file an expert report if OCWD intended to offer his expert opinions in this case.”).
. See Transcript of Status Conference held on 2/15/11 ("2/15/11 Tr.”) at 20-21 (discussing the number of potential OCWD employees OCWD intends to call to offer opinions at trial) ("THE COURT: ... But [OCWD employees] do fall under the “or" clause [of Rule 26]: Or one whose duties as the party's employees involve giving expert testimony. MR. MILLER: They have given expert testimony in a number of—[.] THE COURT: They would be required to do a report under 26(a)(2)(B). That is what I was just checking. So anyway, still potentially a reasonable number, even 16 and 6.”). See also id. at 22 ("MR. PARKER: And we would request that any opinion [given by the six OCWD employees] be allowed to give at trial be limited to what they gave during those depositions. THE COURT: No, they're entitled to submit a report. That's what I just read in the rule. They can write an expert report, they are being proffered as an expert witness. The fact that they are employees doesn’t preclude that .... They can do a report. And then they are limited to their report.”).
. See Bank of China, 359 F.3d at 182 n. 13 (stating that defendants are only entitled to notice and not an expert report under Rule 26) ("Where the witness is not specially retained or employed to give expert testimony, or does not regularly give expert testimony in his or her capacity as an employee, no expert report is required.”) (citation omitted).
. See Exxon Mobil Corporation and ExxonMobil Oil Corporation's Motion to Strike Portions of the July 25, 2011 Declaration of Roy Herndon in Support of Orange County Water District’s Response to Order to Show Cause Re Summary Judgment at 1.
. See OCWD Opp. to Def. Mot. to Strike at 1-2.
. See id.
. In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 528-30, 2011 WL 2565771, at *1 (emphasis in original).
. Specifically, I am striking the last sentence of paragraph 2 as well as paragraphs 17 and 18 in their entirety.
. See PI. Mem. Partial Summary Judgment at 12. Accord In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 534-37, 2011 WL 2565771, at *5. Although OCWD also sought a judicial declaration that it was entitled to "future costs” incurred under the OCWD Act, I found that the Act clearly prohibited those costs. See id. at 534 n. 43, 2011 WL 2565771, at *4 n. 43.
. See In re MTBE Prods. Liab, Litig., 824 F.Supp.2d at 533-37, 2011 WL 2565771, at *4-5 ("[Sjummary judgment is denied as to the costs incurred by OCWD in testing production wells for MTBE and in commissioning the reports. OCWD is directed to show cause ... why summary judgment on this claim should not be granted to defendants.”).
. OCWD Mem. at 7 (quoting Cal. Water Code App. § 40-75) (emphasis in original).
. See id. at 12.
. Id.
. See id. at 8 ("OCWD respectfully requests that the Court either grant summary judgment to OCWD with respect to liability under the Act for the costs of remedial action other than investigatory costs, or find that there are contested issues of material fact with respect to whether OCWD has incurred costs with respect to 'other remedial action’ under the Act.") (emphasis in original). In fact, the costs for bore hole drilling and depth-specific sampling were incurred after the close of discovery. If OCWD seeks to recover these costs it may have to re-open discovery and file a new motion for summary judgment. OCWD may raise this issue at the next Case Management Conference scheduled for November 21, 2011.
. OCWD contends that it did not mention these remedial plans previously because OCWD did not believe it was necessary given this Court’s previous opinion, which found that "OCWD was appreciably harmed as a matter of law,” and because the remedial plans had not been submitted to OCWD at the time of OCWD’s motion. See id. at 5 (quoting In re MTBE Prods. Liab. Litig., 676 F.Supp.2d 139, 149 (S.D.N.Y.2009)). However, as defendants have noted, it would be unfair and prejudicial to allow OCWD to rely on these new facts at this stage. Defendants have not had a chance to seek discovery on any of this new evidence because the alleged expenditures that OCWD is now claiming it spent were not incurred until after the August 2010 fact discovery cutoff.
. See id. at 6 n. 3.
. See In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 546-47, 2011 WL 2565771, at *12.
. See id.
. See id.
. See OCWD Mem. at 13.
. See Defendants' Opposition to Plaintiff Orange County Water District's Motion for Partial Summary Judgment at 20 (citing Rancho Viejo LLC v. Tres Amigos Viejos LLC, 100 Cal.App.4th 550, 562, 123 Cal.Rptr.2d 479 (Cal.Ct.App.2002)). See also In re MTBE Prods. Liab. Litig., 824 F.Supp.2d at 546-47, 2011 WL 2565771, at *12.
. OCWD Mem. at 14 (quoting Arnold Eng’g, 127 Cal.Rptr.3d at 336).
. Id.
. See Arnold Eng’g, 127 Cal.Rptr.3d at 338.
. See, e.g., id. at 330 ("It also brought negligence, public nuisance, trespass, and declaratory relief claims.”). See also id. at 338. (“In its third cause of action for negligence and fifth cause of action for trespass, the Water District also seeks to recover present and future damages it suffered from defendants' groundwater contamination.”) ("The Water District also seeks these same damages on its negligence and trespass claims.”)
. See id. at 336.