In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

241 F.R.D. 435, 2007 WL 25474
CourtDistrict Court, S.D. New York
DecidedJanuary 3, 2007
DocketNos. 1:00 1898, MDL 1358 SAS, M 21-88
StatusPublished
Cited by28 cases

This text of 241 F.R.D. 435 (In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 241 F.R.D. 435, 2007 WL 25474 (S.D.N.Y. 2007).

Opinion

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

In November 1988, a pipeline transporting petroleum products from Texas to Illinois released thousands of gallons of gasoline onto a property known as Danhausen Farm in Limestone Township, Kankakee County, Illinois.1 “A pool of gasoline about 450 feet by 50 feet appeared among fields of corn and soybeans,” according to the Illinois Environmental Protection Agency.2

The gasoline contained a number of additives including MTBE (methyl tertiary butyl ether), various byproducts, and BTEX (benzene, toluene, ethylbenzene, and xylenes).3 An information packet published by the Illinois Environmental Protection Agency in 2002 explains:

The geology within the release area consists of a six to eight foot layer of loess and Silurian age Racine dolomite. The upper 15 feet of the dolomite in this area is highly fractured permitting contaminants to seep into the bedrock aquifer that provides drinking water for many homes in the area. The groundwater in this area is moving towards the Kankakee River.4

Thirteen years after the release, residents and property owners from Limestone Township filed this action against Shell Oil Company and certain companies involved with the [438]*438pipeline (“Companies”).5 The individual plaintiffs include: (1) Edith Quick, (2) Lisa and Carl Kibbons and their son Evan, (3) Edith and Gregory Buckley and their daughter Ellen, (4) Lisa and Jeffrey Quick, (5) Cathy and Charles Quick (Jr.), (6) John Panozzo, the guardian of Marguerite Panozzo, (7) Angela and Christopher Burge, and (8) Kenneth Clark.6 These individual plaintiffs allege that the Companies are hable for the torts of (1) trespass, (2) private nuisance, (3) negligence, and (4) defective product design of MTBE and its byproducts.7 In addition, the individual plaintiffs sued the company that tested water samples in the area in the years after the spill, Parsons Engineering Science, Inc., as well as two of its employees (the “Parson Defendants”).8

Two of these individual plaintiffs, John Panozzo and Lisa Kibbons (“Plaintiffs”), now move under Rule 23 of the Federal Rules of Civil Procedure to represent three subclasses of people who were harmed by the alleged torts committed by the Companies and the Parson Defendants (collectively referred to as “Defendants”). In particular, Plaintiffs seek certification of three subclasses to include people who were harmed after January 1,1988, because:

(1) their real property was contaminated by gasoline from the pipeline release resulting in the loss of market value or quiet enjoyment of the property (subclass one);
(2) their wells and other sources of water were contaminated by gasoline from the pipeline release resulting in expenses associated with procuring uncontaminated water including the cost of connecting to a public or commercial source of uncontaminated water (subclass two);
(3) they were exposed to gasoline contamination from the pipeline resulting in personal injury, or an increased risk of personal injury, including cancer (subclass three).9

It is well-established that a court has the inherent power and discretion “to redefine and modify a class in a way which allows maintenance of an action as a class action.”10 Plaintiffs’ proposed three subclasses warranted modification because they are too broad. In particular, the Companies and the Parson Defendants cannot be part of the same class definition because the question of whether the Companies are liable for their alleged torts arising out of the gasoline spill (trespass, private nuisance, negligence, and [439]*439strict liability) is different than the question of whether the Parson Defendants are liable for the tort of negligence in testing water at various people’s property after the spill. Because the only way to maintain the action as a class action is to modify the proposed class, the Court will redefine the classes so that the Companies and the Parson Defendants are considered separately.

II. THE LAW OF THE TRANSFEROR COURT APPLIES TO CLASS CERTIFICATION IN MULTI-DISTRICT LITIGATION

A threshold question that must be addressed is whether the law of the transfer- or circuit should control when applying Rule 23 (i.e. Seventh Circuit) or, in the alternative, the law of the transferee circuit (i.e., Second Circuit).11 As explained below, the law of the transferor circuit applies to this motion for class certification under Rule 23.

This case was transferred to this Court pursuant to 28 U.S.C. § 1407, which states in pertinent part: “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” 12 “The plain language of the statute does not explicitly resolve the issue of which circuit’s law is binding, but it is important that section 1407 only allows cases to be transferred on the condition that such coordination ‘will promote the just and efficient conduct of such actions.’ ”13

In the context of pre-trial issues such as motions to dismiss or discovery disputes, section 1407 requires the application of the law of the transferee circuit where the motions are being considered.14 For example, courts have held that the law of the transferee circuit controls pretrial issues such as whether the court has subject matter or personal jurisdiction over the action, or whether the cases should be remanded to state court because the cases were not properly removed.15 Likewise, the law of the transferee circuit controls discovery issues such as whether to compel a deposition or documents pursuant to a subpoena.16

The law of the transferee circuit applies in each of these situations because the “objective of transfer is to eliminate duplication in discovery, avoid conflicting rulings and schedules, reduce litigation costs, and save the time and effort of the parties, the attorneys, the witnesses, and the courts.”17 Section 1407 is aimed at eliminating “delay, confusion, conflict, inordinate expense and inefficiency” during the pretrial period.18 In other words, it promotes “just and efficient” resolution of the proceedings to apply the law of the transferee circuit to pretrial issues.19

However, whether to certify an action on behalf of a class under Rule 23 is not merely a pretrial issue. In Coopers & Lybrand v. Livesay,20 the Supreme Court first observed that “the class determination generally involves considerations that are enmeshed in [440]

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Cite This Page — Counsel Stack

Bluebook (online)
241 F.R.D. 435, 2007 WL 25474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-methyl-tertiary-butyl-ether-mtbe-products-liability-litigation-nysd-2007.