Citations
- 591 F. Supp. 2d 259
Full opinion text
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge:
I. INTRODUCTION
Methyl tertiary butyl ether (“MTBE”) is a gasoline additive that has contaminated groundwater throughout the United States, primarily as a result of leaking underground storage tanks (“USTs”). Because MTBE “dissolves and spreads readily in the groundwater ... resists biodegra-dation, and is difficult and costly to remove from groundwater,” it “has caused widespread and serious contamination of the nation’s drinking water supplies.” Among those contaminated water supplies are the wells of plaintiffs Suffolk County-Water Authority (“SCWA”) and the County of Suffolk, who supply drinking water to over one million people in Suffolk County from a large aquifer system that lies beneath the ground in Long Island, New York. MTBE has been detected in over one hundred fifty of SCWA’s nearly five hundred active wells, and scientists predict that other wells are threatened by contamination.
Seeking compensatory and punitive damages, as well as other remedies, plaintiffs sued various companies in the oil industry that have manufactured, refined, marketed or distributed MTBE or gasoline containing MTBE. In their complaint, plaintiffs assert claims for (1) violation of Section 8(e) of the Toxic Substances Control Act (“TSCA”); (2) public nuisance; (3) strict liability for design defect and/or defective product; (4) failure to warn; (5) negligence; (6) private nuisance; (7) trespass; and (8) violation of the New York Navigation Law. To facilitate the jury trial of the numerous and complicated factual issues raised in the case, I ordered a bellwether trial of claims related to ten wells contaminated with MTBE. The number of wells that will be considered at trial has since grown to eighteen wells.
The parties agree that all of the focus wells have been contaminated with MTBE. The issue in dispute is one of causation: Where did the MTBE in each well come from, and who bears the responsibility for its presence? Due to the unique and complicated facts of this case, the means of proving causation has been a highly contested issue. In particular, plaintiffs face two independent obstacles in identifying which defendant’s product caused their injuries.
The first obstacle is that many of the spills and leaks of gasoline that may have caused contamination of plaintiffs’ well water occurred long ago and beneath the ground. From these spills and leaks, MTBE then migrated toward the wells through water flowing beneath the ground. In many cases it is difficult for plaintiffs to identify the gasoline releases from which the MTBE contamination originated (ie., the leaking UST at a particular retailer).
The second obstacle is that the gasoline distribution system in the United States requires manufacturers to mix their products together for transportation in a common pipeline system. Because gasoline is commingled, it is impossible to identify with certainty the refiners of the gasoline released from a leaking UST.
Defendants have brought two omnibus motions for summary judgment on plaintiffs’ tort claims based on inability to prove causation. The first motion argues that for half of the focus wells, plaintiffs cannot prove that any particular leaking UST at a retail gas station caused the contamination of the well, and thus the companies that own those retail stations cannot be liable. Defendants further argue in that motion that the companies that manufacture, market or distribute MTBE or gasoline containing MTBE should not be liable because plaintiffs cannot prove their role in causing the harm. The second motion argues that where plaintiffs can identify the source of contamination in a well, only the owners and/or operators of the stations named by plaintiffs’ expert as the source of contamination can be liable.
In addition, defendants filed a separate motion for partial summary judgment as to the Navigation Law claims, again arguing that only those companies whose spills were found by plaintiffs’ expert to have caused contamination can be liable for such claims.
Finally, a small subset of defendants filed individual motions for summary judgment, arguing that for various reasons, their gasoline or MTBE could not have caused plaintiffs’ injuries. These companies include: (1) Lyondell Chemical Company (“Lyondell”) and Equistar Chemicals LP (“Equistar”), (2) Crown Central LLC (“Crown”), (3) Getty Properties Corp. (“Getty”), (4) Giant Yorktown Inc. (“Giant”), (5) Irving Oil Limited and Irving Oil Corporation (“Irving”), and (6) Total Petrochemicals USA, Inc. (“Total”).
For the reasons below, defendants’ motions are granted in part and denied in part.
11. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” An issue of fact is genuine “ ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” “It is the movant’s burden to show that no genuine factual dispute exists.”
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it must do more than show that there is “ ‘some metaphysical doubt as to the material facts,’ ” and it “ ‘may not rely on conclusory allegations or unsubstantiated speculation.’ ” However, “ ‘all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’ ”
In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party’s favor. However, “[i]t is a settled rule that ‘[credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’” Summary judgment is therefore inappropriate “ ‘if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.’ ”
III. CAUSATION
The requirement that the defendant’s actions must be the cause of the plaintiffs injury is common in the law and applies to all of plaintiffs’ claims other than TSCA. At issue here is whether plaintiffs’ evidence could support a reasonable jury’s finding that defendants caused the alleged harm under either traditional or alternative theories of causation, and in what circumstances is it appropriate to allow plaintiffs to prove causation through the use of alternative theories of liability.
A. Traditional and Alternative Methods of Proving Causation
Tort liability usually depends on proof that a defendant’s conduct was both the factual cause and the proximate cause of a plaintiff s injury. For example, in a negligence claim, “[t]o carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.” The substantial factor standard for causation, adopted in New York, recognizes that often many acts can be said to have caused a particular injury, and requires only that defendant’s actions be a substantial factor in producing the injury. A plaintiff need not eliminate every other possible cause, and the fact “[tjhat another possible cause concurs with defendant’s negligent act or omission to produce an injury does not relieve defendant from liability.”
Plaintiffs usually bear the burden of proving causation, like every other element of a prima facie case, by a preponderance of the evidence. In other words, plaintiffs must show that it is more likely than not that the defendant’s actions caused their injury. In addition, “identification of the exact defendant whose product injured the plaintiff is ... generally required.” “The identity of the manufacturer of a defective product may be established by circumstantial evidence.” Such evidence cannot be “speculative or conjectural,” it must be reasonably probable that it was defendant’s product that caused the injury.
It is sometimes impossible to identify the exact defendant who caused the injury even though the plaintiff can establish the other elements of a prima facie case against a number of defendants. In such situations, courts have occasionally allowed plaintiffs to prove causation through alternative means, such as shifting the burden to the defendants to prove that they did not cause the harm. Courts have developed various doctrines, deemed “alternative liability theories,” which depart from the requirement that plaintiffs prove by a preponderance of the evidence that defendant’s conduct was a substantial cause of the events which produced the injury.
B. Applicability of Causation Theories in this Case
In denying defendants’ motion to dismiss in this action, I held that New York courts would allow plaintiffs to prove their claims through an alternative liability theory. Since then, much confusion has arisen regarding the applicability of various theories of alternative liability, particularly market share liability.
To some extent, the confusion is due to prior rulings in this case that were made without a fully developed evidentiary record. Plaintiffs have now submitted evidence about the gasoline distribution system, including third-party depositions of gasoline pipeline and terminal company representatives, which has shed light on how manufacturers’ gasoline is commingled for transport to retail gas stations. On the basis of this evidence, as explained below, I am now able to clarify several issues with respect to alternative liability. First, market share liability need not be applied in this case to prove plaintiffs’ claims, and indeed the theory may not even be applicable on these facts, because the product alleged to have caused the harm is undeniably a blended product manufactured by multiple defendants, rather than a product manufactured by a single defendant that cannot be identified.
Second, plaintiffs may rely on the commingled product theory, which this Court developed to address the particular facts of this case, to prove their claims against gasoline and MTBE manufacturers. As discussed below, the commingled product theory, while still an alternative means of proving causation, is closer to traditional causation than to market share liability. Under this theory, a reasonable jury could conclude, based on the evidence in the record, that all defendants contributed to the commingled gasoline that caused contamination in plaintiffs’ wells. Defendants may still exculpate themselves by showing that their product could not have been part of the commingled gasoline spilled in Suffolk County, but the burden shifts to them to do so.
Third, where a reasonable jury could conclude — under traditional causation principles — that particular gasoline spills caused the contamination in each well, summary judgment is denied for claims against the defendants responsible for those spills. Fourth, because all entities in the chain of distribution may be hable for product liability claims, the defendants proven to have spilled the gasoline that caused contamination in a well may be held jointly and severally liable for these claims with the defendants shown under the commingled product theory to have manufactured the gasoline that spilled. In other words, the jury’s conclusion that certain defendants spilled gasoline that caused contamination in a well, and are thereby liable as retailers of a defective product, does not preclude the jury from also concluding that certain defendants manufactured the gasoline that was spilled, and are thereby liable as manufacturers of a defective product. Fifth, and finally, even when the jury concludes that plaintiffs have not met their burden to prove that any particular spill of gasoline caused contamination in a well, plaintiffs may still prove their claims against gasoline manufacturers under the commingled product theory.
IV. LIABILITY OF GASOLINE AND MTBE MANUFACTURERS
The parties do not dispute that gasoline containing MTBE is a fungible product, nor do they dispute that gasoline manufacturers — known as refiners — mix their products together for transportation and distribution, so that the gasoline sold at any given retail station contains the product of multiple refiners. Defendants argue that because plaintiffs cannot identify which refiners were responsible for producing the particular gallons of gasoline that were released into the environment and caused contamination in the wells, their claims against the refiners must fail. In response, plaintiffs argue that all refiner defendants contributed to all gasoline released into the environment in Suffolk County, creating a fact issue for the jury under traditional causation principles. In the alternative, plaintiffs argue that the commingled product theory and/or market share liability should shift the burden of proof to the defendants to exculpate themselves from liability.
Plaintiffs’ argument that a reasonable jury could conclude, under traditional causation principles, that it was likely that all defendants’ product was part of every gallon of gasoline that caused MTBE contamination, is not supported by the evidence in the record. Rather, it is likely that some of each defendant’s gasoline was spilled somewhere in Suffolk County, leading to contamination in some of the wells. Moreover, because of the blended nature of the gasoline, it is impossible to determine whose product was in any particular spill. However, defendants’ argument that this impossibility is fatal to plaintiffs’ claims is contrary to New York policy and precedent, and to prior rulings in this case. Instead, as explained below, the commingled product theory provides plaintiffs with a means to prove their claims against the manufacturers.
A. Background on the Pipeline System
“The name on the service station sign does not tell the whole story. The fact that you purchase gasoline from a given company does not necessarily mean that the gasoline was actually produced by that particular company’s refineries.” In fact, the gasoline is almost never produced exclusively by that company’s refineries. Instead, the gasoline sold at each service station in a particular area is usually the same: a blend of a large number of refiners’ products, due to the complex gasoline distribution system in the United States.
The system includes various actors:
MTBE manufacturers, who create MTBE and sell it to be blended into gasoline;
gasoline refiners, who manufacture gasoline and other petroleum products from crude oil, and who blend MTBE into gasoline;
marketers, who purchase and sell gasoline, acting as middlemen between refiners and retailers; and
retailers, who sell gasoline to the public at service stations.
Other participants in the system include those who transport or store gasoline, such as pipeline operators, terminal owners, and jobbers, who transport gasoline from terminals to retailers. Many oil companies are vertically integrated, which means that a single company may own and operate refineries, own terminals, market gasoline, and sell gasoline to the public from retail stations that it owns or on which it places its brand. “The process of manufacturing and distributing petroleum products involves complex arrangements whereby defendants trade, barter, or otherwise exchange product for delivery throughout parts of the country.”
The complex business relationships in the oil industry cannot fully be addressed here. Instead, this section discusses how gasoline traveled from the manufacturers to the retail stations in Suffolk County from which it leaked into the soil. First, MTBE is manufactured and blended into gasoline at the refinery. Second, the gasoline is transported via pipeline and waterway to New York Harbor. Third, it is stored in primary terminals at the New York Harbor, from which it is redistributed by ship and by pipeline to secondary terminals in Long Island. Fourth, and finally, at Long Island secondary terminals, trucks load the gasoline from common tanks for transport to retail stations in Suffolk County.
1. Gasoline Refining
Crude oil is converted to petroleum products, including gasoline, at refineries. Many of the defendants in this case own and operate petroleum refineries. At the refinery, MTBE — which may have been manufactured by a separate petrochemical company and purchased by the refinery, or may have been manufactured at the refinery itself — is blended into the portion of gasoline that is destined for areas where oxygenated fuel is sold.
2. Pipeline Transport
Most U.S. refineries are located in the Gulf Coast, although regional refineries are scattered throughout the country. A system of underground pipelines transports gasoline from refineries to regional markets. The pipeline serving the East Coast is the Colonial Pipeline. Stretching from the Gulf of Mexico to New York Harbor, the Colonial Pipeline is the “world’s largest volume-refined petroleum products pipeline system.” It includes 5,519 miles of pipeline and serves over eighty customers.
Refiners load gasoline and other petroleum products into the pipeline from their facilities in Texas, Louisiana, Mississippi and Alabama. Volumes of gasoline are unloaded at the 267 marketing terminals along the length of the pipeline, most of which are near major population centers. The Colonial Pipeline terminates at the New York Harbor in Linden, New Jersey, where there are a number of petroleum terminals.
Most gasoline shipped in the pipeline is fungible. When a refiner designates its gasoline as fungible, it is not kept separate from other refiners’ gasoline but is instead mixed with all other refiners’ fungible gasoline for shipment. Each refiner loading fungible gasoline into the pipeline must ensure that its product is identical according to pipeline specifications. When a company takes a volume of gasoline out of the pipeline at a terminal, it is not the same gasoline it put in, but merely an equivalent amount. As Colonial Pipeline explains, when shipping gasoline as fungible, companies unloading their product “will receive equivalent product but may not get back the actual product shipped.”
Some proprietary grades of gasoline are shipped as a segregated product, in which case “shippers receive the same product they injected into the system.” Segregated product represents a small portion of the gasoline shipped in the pipeline, however. According to plaintiffs, “only a few gasoline products ... were not commingled with other gasoline products— Amoco’s Silver and Ultimate premium gas-olines, and in the early 1990s, Mobil’s proprietary premium grades and certain product refined at Exxon’s Bayway facility.”
3. Terminals in New York Harbor and Long Island
Terminals are “the primary gateways for petroleum product distribution.” The first distribution hub for gasoline sold in the New York metropolitan area, as well as much of the Northeast, is the set of primary terminals in the New York Harbor. Terminals are owned by individual companies, but like the pipeline companies the terminal owners do not own the gasoline stored at and shipped from the terminal. The primary terminals receive gasoline and other fuels from the Colonial Pipeline and from waterway shipment, store the gasoline in large tanks, and redirect it toward secondary terminals serving regional markets.
Waterway shipments from both domestic and foreign sources represent a significant portion of supply to the New York Harbor terminals. Although shipments arriving at the terminal may contain gasoline produced by a single refiner, upon arrival that gasoline is placed in the same large storage tanks as the fungible gasoline from the pipeline. Therefore, it becomes mixed with gasoline from other refiners at the terminal itself.
From the New York Harbor terminals, gasoline is sent to secondary terminals throughout the Northeast, including terminals on Long Island where Suffolk County is located, either through the Buckeye Pipeline, an underground pipeline system serving the Northeast, or by barge. Some gasoline refined in New Jersey is also placed directly into the Buckeye Pipeline for transport to Long Island secondary terminals. Most gasoline placed in the Buckeye Pipeline has already been blended either in the Colonial Pipeline or in storage tanks at the primary terminal. Gasoline placed directly by the refiner into the Buckeye Pipeline, if designated as fungible, is mixed together with the other gasoline, which itself is already mixed.
Secondary terminals on Long Island supply all the gasoline found in Suffolk County — both at retail stations as well as non-retail customers. As with primary terminals, gasoline arriving at secondary terminals by pipeline and barge is stored in large tanks. The terminals have tanks designated for various grades of fungible gasoline, proprietary gasoline, and other petroleum products.
4. Distribution to Retail Stations
From “racks” at the secondary terminal tanks, tanker trucks load gasoline for distribution to retail stations and other users. The trucks delivering the gasoline may be a company’s branded trucks taking it to their branded stations, or they may be independent companies who contract with refiner-marketers to supply branded stations, or who supply independent, non-branded stations. Unless the truck is delivering a proprietary brand, the gasoline loaded onto each truck comes from the same tanks, which contain gasoline from various refiners mixed together.
There are approximately six hundred retail gasoline stations in Suffolk County, about eighty percent of which are branded. A branded station is not necessarily owned by the company under whose brand it sells gasoline, and in Suffolk County only about forty-five percent of the branded stations are owned by the branding company. The stations may be leased or run under franchise agreements, in which case independent owners of branded stations are typically required to purchase gasoline from the refiner whose brand is on the station. Non-branded stations also purchase gasoline from refiners at the secondary terminals, or from jobbers who purchase it from refiners and re-sell it to station owners. At gas stations, the trucks load the gasoline into USTs from which it is pumped into vehicles upon sale. These USTs are often the site of gasoline leaks.
B. Proof of Claims Against Manufacturers Under Traditional Causation Principles
Evidence in the record that describes the gasoline distribution system serving the New York regional market includes a report by defendants’ expert John O’Brien, confidential deposition testimony from representatives of the Colonial and Buckeye pipelines, and deposition testimony from representatives of companies that own, operate or lease six of Long Island’s eight secondary terminals, most of which are also confidential. This evidence illustrates that gasoline sold in Suffolk County is supplied according to the system described above and becomes commingled in the process, making it “the joint product of all who have contributed to it along the way from refineries through pipelines and tankers to primary terminals and out again via pipelines and barges to secondary terminals.”
Testimony from pipeline and terminal employees makes clear that all gasoline delivered to Suffolk County gas stations, with the exception of a few proprietary brands, was necessarily transported through the commingled distribution system described above. In addition, evidence in the record, including interrogatory responses from refiner defendants and confidential records of barrels of gasoline placed into the pipeline and taken out of the pipeline by each refiner defendant by year from 1979 to 2003, demonstrates that during certain years each refiner defendant contributed to the commingled gasoline distributed in Suffolk County.
However, even drawing all inferences in plaintiffs’ favor, no reasonable jury could find, by a preponderance of the evidence, that each defendant’s gasoline caused the contamination of each well. Many refiners supply the New York area — almost fifty were named as defendants in this case— and overseas companies not named as defendants also supply gasoline to the New York regional market. Because of the large number of refiners contributing product, defendants’ expert opines that “no gallon of gasoline stored in, or released from,, a UST in Suffolk County would ever have contained molecules from every gasoline manufacturer who made product in a particular year.” There is simply no way to identify, by direct or circumstantial evidence, the refiners of the gasoline that eventually leaked from a UST.
C. Proof of Claims Against Manufacturers Under the Commingled Product Theory
The evidence can, however, support an inference that each defendant’s gasoline containing MTBE was, at least during certain years, delivered to Suffolk County gas stations in a commingled state. A reasonable jury could conclude that most defendants’ gasoline contributed to contamination in at least some of the wells at some point. To exempt defendants from liability, when plaintiffs have proven the other elements of their claims, simply because plaintiffs are unable to deconstruct the molecules of the commingled gasoline to identify the manufacturers of each gallon of spilled gasoline is unjust. To avoid such a result, New York courts have often “modified] the rules of personal injury liability, in order ‘to achieve the ends of justice in a more modern context’ and ... to overcome ‘the inordinately difficult problems of proof caused by contemporary products and marketing techniques.”
In accordance with that policy, I have previously held that under the commingled product theory,
when a plaintiff can prove that certain gaseous or liquid products (e.g., gasoline, liquid propane, alcohol) of many refiners and manufacturers were present in a completely commingled or blended state at the time and place that the harm or risk of harm occurred, and the commingled product caused plaintiff s injury, each refiner or manufacturer is deemed to have caused the harm.
In addition, “[a] defendant must be able to exculpate itself by proving that its product was not present at the relevant time or in the relevant place, and therefore could not have been part of the commingled or blended product.”
The commingled product theory lies somewhere between market share and concurrent wrongdoing. It is similar to concurrent wrongdoing — a theory that allows multiple tortfeasors to be held jointly and severally liable when each tortfeasor’s independent actions combine to produce the same wrong — because it addresses a situation in which multiple defendants have contributed to an indivisible injury. It is similar to market share in that it shifts the burden to defendants to exculpate themselves from liability.
The theory is different from market share liability, however, in an important way. Market share liability was developed in the context of plaintiffs’ inability to identify which manufacturer had produced the defective product — diethylstilbestrol (“DES”) pills. Each plaintiff in the DES cases had ingested pills that were manufactured by only one defendant, but no one could determine which of a small number of manufacturers made those exact pills. When holding all manufacturers of the generic pill liable under market share, courts recognized that all but one of them did not cause the plaintiffs injury.
Here, by contrast, because the gasoline that has contaminated plaintiffs’ wells was undeniably the commingled product of numerous manufacturers, there is a good chance that many of the defendants held liable, if not the majority, actually did cause plaintiffs’ injury. In this sense, the commingled product theory is closer to traditional causation than market share liability.
Based on the evidence described above, a reasonable jury could conclude that gasoline from “many refiners and manufacturers [was] present in a completely commingled or blended state at the time and place that the harm or risk of harm occurred,” and therefore the manufacturer defendants could be held liable under the commingled product theory. Each defendant, of course, may offer evidence to exculpate itself from liability “by proving that its product was not present at the relevant time or in the relevant place.”
Clarification as to the operation of the commingled product theory is required. First, the time that the risk of harm — the contamination of groundwater — occurred is an issue of fact for the jury. It is admittedly difficult to determine the date of groundwater contamination. However, plaintiffs have presented sufficient evidence about the spills alleged to have caused contamination in each well and/or the dates MTBE was first detected in each well to allow a jury to estimate a range of time during which the contamination occurred.
Second, the place the harm or risk of harm occurred is the capture zone of each well, where the MTBE now contaminating the well must have first contaminated the groundwater. A reasonable jury could conclude that each defendant’s gasoline was present within the well’s capture zone even if the jury concludes that it cannot identify the source of the spill that caused the well’s contamination. It is not necessary for plaintiffs or the jury to identify the particular spill(s) that caused contamination in a well for manufacturers to be liable under the commingled product theory, because identifying the source of a spill does not provide any additional information about the manufacturers of the gasoline contaminating the well.
Third, and finally, I have previously stated that alternative liability theories — particularly market share liability— should not be applied unless plaintiffs have no other remedy. If a jury determines under traditional causation principles that an identified tortfeasor caused the contamination in a well, I held that plaintiffs cannot pursue other tortfeasors with respect to that well under alternative liability theories. While this reasoning may apply to some claims (e.g., public or private nuisance), I now conclude that plaintiffs may pursue product liability or negligence claims against manufacturers for placing a dangerous product into the stream of commerce, regardless of whether plaintiffs can identify a retailer whose leaking tank spilled gasoline into a well’s capture zone.
This is true for several reasons. To begin with, negligence claims against manufacturers are distinct from negligence claims against the retailer who spilled gasoline — the manufacturer’s breach would be distributing a dangerous product, or failing to provide warnings as to the use of a product, while the spiller’s breach would be fading to prevent leaks on its property. Moreover, for product liability claims New York courts favor liability for entities higher in the chain of distribution, reasoning that “[mjanufacturers are in the best position to know when products are suitably designed and properly made, as well as to diffuse the cost of safety in design and production.” Retailers and distributors, on the other hand, are often “innocent conduits in the sale of the product” and are held liable only because product liability is strict. Finally, because the commingled product theory is far closer to traditional causation principles than market share liability, the limitation on the use of market share as a method of proof is unnecessary.
Defendants also argue that plaintiffs should not be permitted to prove causation under an alternative theory of liability because the New York Oil Spill Fund (“the Fund”) provides a complete remedy for injuries to all of plaintiffs’ wells. I am not convinced that the Fund would, in fact, provide such a remedy. Although defendants compare the Fund to a compensation scheme created under the National Childhood Vaccine Injury Act of 1986, which was the basis for the New Jersey Supreme Court’s decision that plaintiffs could not apply market share liability to recover for injuries allegedly resulting from a vaccination, the two schemes are vastly different in purpose, scope, and policy. While the vaccine compensation scheme was intended to provide individuals with a substitute for tort remedies, the Fund is intended to provide resources to pay for the prompt cleanup of oil discharges by the state. Unlike the vaccine compensation scheme, a reimbursement claim to the Fund does not preclude the claimant from pursuing tort remedies. Furthermore, claims to the Fund have historically been for amounts that are minuscule in relation to the damages plaintiffs seek here, averaging $15,000 to $20,000. Because it is doubtful that the Fund would provide a complete remedy to plaintiffs, it does not preclude application of the commingled product theory to prove claims against manufacturers.
D. Liability of MTBE Manufacturers: Lyondell and Equistar
Lyondell and Equistar manufactured MTBE and sold it to various gasoline refiners to be blended into gasoline. Unlike other defendants in this action, they never refined, distributed, or marketed gasoline, nor did they own or operate gasoline retail stations. Lyondell and Equistar’s summary judgment motion argues that because plaintiffs cannot identify the manufacturer of the MTBE contaminating any of the focus wells, their claims must fail. Although their arguments are similar to those made by gasoline refiners in the omnibus motions, the facts are slightly different and merit separate discussion. Nevertheless, as discussed below, the commingled product theory applies to claims against Lyondell and Equistar, and operates in the same way as it does for claims against gasoline refiners.
“All MTBE that is blended into gasoline is chemically the same, regardless of the manufacturer.” This Court has recognized that MTBE “lacks a ‘chemical signature’ that would enable identification of the refinery or company that manufactured” it.
Evidence in the record establishes that Lyondell and Equistar sold MTBE to various refiners, including nearly all refiner defendants in this action, between 1979 and 2003. Moreover, the evidence discussed above in section B supports an inference that most of these refiners placed gasoline in the Colonial Pipeline for distribution to the New York regional market.
Lyondell and Equistar point out that many other companies manufactured MTBE for blending into gasoline, including refiners. Once it is blended into gasoline that is commingled in the distribution system, however, MTBE from various producers also becomes commingled. Indeed, MTBE from various producers is probably commingled before it enters the distribution system, because each refiner appears to have blended MTBE from multiple producers into its gasoline.
Plaintiffs cannot prove, either through direct or circumstantial evidence, that any particular molecules of MTBE contaminating their wells were manufactured by Lyondell or Equistar. A reasonable jury could conclude, however, that because refiners blended Lyondell and Equistar’s MTBE into gasoline that was placed in the Colonial Pipeline or shipped to the New York Harbor, some of Lyondell or Equistar’s MTBE was likely found in groundwater within the capture zones of various focus wells in Suffolk County. For this reason, under the commingled product theory Lyondell and Equistar can be held liable for the contamination in the wells, unless they are able to prove that their MTBE was not in the relevant place at the relevant time. Lyondell and Equistar’s motion is therefore denied.
E. Individual Exculpation Motions
In addition to Lyondell, a handful of defendants — Crown, Getty, Giant, Irving and Total — have filed individual summary judgment motions. The parties have referred to these motions as “exculpation motions,” presumably referring to the fact that under the commingled product theory a defendant may exculpate itself from liability.
Plaintiffs make two arguments in opposing these motions. Plaintiffs’ first argument is that defendants have ignored “this Court’s admonition that individual defendants avoid making individual motions if the omnibus motion addresses the same issues.” Plaintiffs are correct that many of defendants’ arguments repeat those that are made in the omnibus motion, particularly about their liability as retailers. This is especially true of the motion filed by Getty, which is only being sued as a retailer. All of the issues raised by Getty are made in the omnibus motion. The other defendants make the same error when focusing on their liability as retailers of gasoline. I have resolved these issues in Part V of this opinion, which discusses the liability of retailers for spills of gasoline alleged to have contaminated plaintiffs’ wells.
Plaintiffs’ second argument is that defendants have ignored commingled product theory as it has been developed in this case. For example, Irving argues that “plaintiffs cannot meet their fundamental burden under New York law of proving causation and product identification,” while Total contends that it “is Plaintiffs’ burden to prove causation.” Such arguments ignore the fact that under commingled product theory, the burden lies with the defendant to exculpate itself once plaintiffs have shown that the product was in a completely commingled or blended state at the time and place that the harm or risk of harm occurred. A defendant “must be able to exculpate itself by proving that its product was not present at the relevant time or in the relevant place, and therefore could not be part of the commingled or blended product.” In this case, defendants have ignored their burden and thus failed to present evidence that would permit a reasonable jury to find that their product was not present in either the Colonial pipeline or the New York Harbor.
Certain defendants, however, do argue that they must be dismissed on the product liability claim because their product “was not present at the relevant time ... and therefore could not have been part of the commingled or blended product.” For example, Giant argues that it “should be granted summary judgment because it had not yet begun operations when the wells at issue in this case were allegedly contaminated with MTBE.” In particular, Giant did not begin operations until May 14, 2002.
Plaintiffs agree that Giant cannot be held liable for spills or releases of gasoline with MTBE that occurred prior to that date. Plaintiffs note, however, that “Giant may still be liable for MTBE released and detected in wells after that date.” For example, one of the eighteen focus wells, Crystal Brook Hollow No. 3, began operating in 2004. Because MTBE manufactured or otherwise distributed by Giant could have contaminated this well, plaintiffs may use the commingled product theory to pursue Giant for damages resulting from contamination in that well.
The same reasoning applies to the other defendants as well. On the one hand, if the jury finds that the contamination of a particular well occurred prior to the date the defendant entered the market, then that defendant may not be held liable as a matter of law. On the other hand, if the contamination of a particular well occurred after the defendant’s product entered the market, then the jury must resolve whether that defendant is liable for damage to that well. Of course, such a determination will need to be made by the jury on a well-by-well basis given that the date of contamination is a fact-intensive question.
Finally, the individual defendants argue that they should not be liable because they manufactured a de minimus amount of MTBE or gasoline containing MTBE. Total claims that “the amount of gasoline containing MTBE [that Total] placed into pipelines that could reach the New York Harbor market represents an extremely small percentage of the total gasoline transported to that market,” and Crown argues “MTBE gasoline delivered into New York Harbor from 1979 to 2003 is infinitesimal relative to the total amount of gasoline that [was] delivered to New York Harbor during that time.”
Yet, there is no de minimus exception to liability under the commingled product theory. Defendants concede that their product was present in the Colonial pipeline or the New York Harbor at some point and thus their product commingled with gasoline that was delivered to Suffolk. If a defendant supplied only a small amount of gasoline to the market, this should be reflected in the amount of damages assessed against that defendant.
The individual exculpation motions are therefore denied.
F. Proof of Claims Against Manufacturers Under Concert of Action Liability
Plaintiffs also argue that refiner defendants who are not implicated as a source of the spilled gasoline contaminating a particular well may still be vicariously hable for another defendant’s actions causing contamination of that well under the concert of action theory. They assert that evidence regarding the operation of the gasoline distribution system, which requires companies to produce gasoline according to the same specifications, and lobbying activities by an industry association that may have concealed known risks associated with MTBE, establish that defendants acted in concert or pursuant to a tacit agreement.
To establish liability under concert of action, plaintiffs must show that: (1) each defendant acted tortiously; (2) defendants had an understanding, express or tacit, to participate in a common plan; and (3) at least one defendant committed a tortious act in furtherance of the plan that constitutes a tort. The alleged tortious act of each defendant is manufacturing and marketing a defective product, and one defendant’s spill of gasoline causing contamination in a well constitutes a tort.
The New York Court of Appeals has held that parallel development and marketing of a product by various companies, in and of itself, does not constitute a common plan. Therefore, the mere fact that refiners all added MTBE to their gasoline in order to transport it as a commingled product through the pipeline system is not sufficient to prove concert of action.
A concerted effort by refiners to conceal known risks of MTBE from the government and the public, however, could constitute a common plan under this theory. To support their claim, plaintiffs have submitted various internal memoranda and letters to the EPA from the “MTBE Committee,” as well as several internal memoranda from Exxon in which an Exxon environmental specialist, Barbara Mick-elson, describes the risk of groundwater contamination associated with increased use of MTBE in gasoline.
But plaintiffs have not identified any company, including any defendant in this action, as a member, funder or supporter of the MTBE Committee. Although all inferences must be drawn in favor of the non-moving party, the broadest inference to be drawn here is that the MTBE Committee was an industry association in which many oil refiners participated. Many of the remaining refiner defendants in this action are small companies, however. Irving Oil, for example, is a very large refiner but is based in Canada, and cannot be assumed to have been a member of the MTBE Committee. Giant could not have been a member because the company was formed in 2002, many years after the MTBE Committee made the statements at issue.
In addition, there is no evidence that ExxonMobil’s knowledge of the risks posed by MTBE, as illustrated by the Mickelson memoranda, was shared with the MTBE Committee or other defendants in this action. Therefore, although the evidence indicates that Exxon knew about the dangers MTBE posed to groundwater and that an industry association represented to the government that there were no dangers involved in the use of MTBE in gasoline, it is not sufficient to support the conclusion that all refiner defendants participated in a common plan to conceal the risks of MTBE from the public.
Y. LIABILITY OF RETAILERS FOR SPILLS AND SALE OF GASOLINE CONTAINING MTBE
As explained above, a jury may hold the manufacturers and refiners liable for contamination in a well regardless of whether the spill that caused that contamination can be identified. Nonetheless, it remains important for plaintiffs to prove which spills caused the contamination as the spillers may be liable for negligence in failing to prevent leaks, and as retailers of gasoline containing MTBE, they may be jointly and severally liable with manufacturers for products liability claims. Further, only the spillers may be liable for the discharge of gasoline under the New York Navigation Law. To prove that certain spills caused contamination in each well, plaintiffs rely largely on the report of then-expert hydrogeologist, Charles Sosik. The expert report identifies a “capture zone” for each well that encompasses all potential sources of contamination. The expert report also identifies certain retail stations as the sources of contamination for some, but not all, wells within a “reasonable degree of scientific certainty.”
Sosik’s expert report also contains information about each spill culled from government and private investigations of the spills. This information includes, inter alia, investigation reports detailing the circumstances of the release, remedial steps taken, and the directional flow of groundwater from a spill site toward the well.
Defendants concede that when plaintiffs’ expert has identified a specific source of the contamination, a reasonable jury could find that this retailer was the cause of plaintiffs’ injury. Of course, this does not mean that the jury must reach such a conclusion as defendants may present evidence at trial that refutes plaintiffs’ argument. Nonetheless, on this summary judgment motion, the parties agree that plaintiffs’ expert report creates a fact issue on the issue of causation that the jury must resolve.
With respect to any claim in which the expert does not identify a source of the contamination within a reasonable degree of scientific certainty, defendants argue that no reasonable jury could hold them liable. In contrast, plaintiffs argue that non-expert information is still sufficient to support a jury’s finding that a particular defendant caused the contamination of each well.
A reasonable jury could find that a particular retailer was the source of the contamination even if it was not specifically identified in the expert report. However, in some instances plaintiffs’ non-expert information is insufficient to support a reasonable jury’s verdict. The evidence regarding spills must be examined on a well-by-well basis. As explained below, the evidence is insufficient to support a finding by a reasonable jury that any known gasoline spills caused the contamination of three of the eighteen wells: (1) Horseblock Road Well No. 1, (2) Dare Road Well No. 1, and (3) Strathmore Court Well No. 1.
A. Releases From Underground Storage Tanks
Leaks from USTs are the primary sources of MTBE groundwater contamination. . Before federal regulations of USTs went into effect in 1988, the EPA estimated that between ten and thirty-five percent of USTs were leaking. “Until the mid-1980s, most USTs were made of bare steel, which is likely to corrode over time and allow UST contents to leak into the environment.” Because of UST leaks and other spills, “[e]ach year approximately 9 million gallons of gasoline (the equivalent of a full supertanker) are released to the environment in the United States from leaks and spills, according to an estimate by the Alliance for Proper Gasoline Handling.”
Federal regulations adopted in 1988 required substantial upgrades to most of the nation’s USTs, most importantly the installation and maintenance of leak detection systems. However, for many reasons UST owners were slow to upgrade their tanks to comply with the regulations. Even after 2000, when an estimated eighty-nine percent of all USTs had received the mandated upgrades, as many as twenty-nine percent of USTs “were not being operated or maintained properly, increasing the risk of soil and groundwater contamination.”
Without properly functioning leak detection systems, leaks from USTs are rarely noticed immediately because the gasoline contaminates soil beneath the surface and is not visible. Most UST leaks are only discovered well after they began, either when groundwater impact is reported or when excavation occurs for other reasons. Sosik notes that “[i]n the vast majority of cases the spill is discovered when gasoline impacted soil is encountered during the removal or upgrade of an underground storage tank. No one knows when the leak began, how long it had been leaking or the volume of fuel lost.”
A recent study of MTBE contamination in Long Island illustrates the prevalence of unreported leaks. The study, funded by the EPA, was designed to “better define the extent of MTBE contamination stemming from previously unidentified and/or unreported MTBE blended gasoline releases.” Researchers inspected USTs at fifty-two gasoline retail stations in Nassau and Suffolk Counties that had no known prior releases of gasoline, and sampled groundwater at the stations for MTBE contamination. Thirty-two previously unknown gasoline releases were discovered at the fifty-two sites, meaning that over fifty percent of the sites had released gasoline without reporting it to the state. In addition, MTBE was found in groundwater at levels over the New York State maximum contaminant level (“MCL”) of 10 ppb in thirty-four percent of stations in Suffolk County and fifty-three percent of stations in Nassau County.
B. Migration of MTBE in Groundwater
MTBE gasoline released from USTs initially leaks into the soil surrounding the tank. Because MTBE is highly soluble in water, it quickly dissolves into groundwater when rain or other water passes through the contaminated soil. Once MTBE dissolves into the groundwater it migrates underground away from the release site:
As rain and other water move through the soil, water-soluble contaminants may be carried along with the moving water. The region of contamination created by such a water flow is called a “plume.” Plumes vary in size and shape based on, inter alia, the terrain, the qualities of the local soil, and the speed and volume of water flowing through the soil. To determine the size and direction of a plume is to “delineate” the plume. Eventually, if a plume reaches an underground basin or other aquifer from which water is drawn, the water in that aquifer will become contaminated by the plume. Thus, any wells drilled into that aquifer would produce contaminated water.
According to Sosik, a key characteristic of plume development observed on Long Island is that “MTBE plumes continue to advance and do not stabilize or retreat.” These plumes are generally narrow and travel far from a spill site due to the characteristics of the soil. Sosik states that in cases where there was either a large initial release or a continuous smaller release, the plume will remain attached to the spill site, whereas contamination stemming from “older, smaller volume releases will travel as a detached plume. In almost all cases a detached plume will go undetected until it impacts a private or public supply well or is accidentally discovered in a monitoring well installed for some other purpose.”
C. How Plaintiffs Identified Sources of Contamination
The key evidence supporting plaintiffs’ claims is Sosik’s expert report, which:
provide[s] opinions relating to the hy-drogeology of the Long Island aquifer; the source(s) that have contributed and are contributing to the contamination of wells in the Suffolk County Water Authority drinking water well system; the timing of releases at the source areas and arrival at the wells; the extent of MTBE contamination in a given well; and the anticipated duration of the MTBE contamination in the well.
Phase I of Sosik’s expert report addresses source attribution. Sosik gathered a list of all gasoline spills in Suffolk County that were reported to the New York State Department of Environmental Conservation (“NYSDEC”). He then analyzed each of the known spills that occurred within each well’s “capture zone,” and based on certain factors determined which of the gasoline releases are the source of MTBE in each of the eighteen wells.
One of the key factors in Sosik’s analysis was whether the gasoline spilled at each site had contaminated the groundwater directly beneath the spill or elsewhere on the gasoline station property. Because only those spills where gasoline constituents entered the groundwater at the spill site could cause contamination in a well some distance away, Sosik “reviewed each file for confirmation of groundwater contamination with gasoline constituents and eliminated those which did not have such confirmation in documents contained in the files.” At many spill sites, however, neither the gas station owners nor the NYSDEC investigators tested the groundwater to determine whether gasoline constituents had leached from gasoline-contaminated soil into the groundwater. Sosik therefore “had to eliminate suspect sites, sites with confirmed gasoline releases to the subsurface” because of the lack of thorough investigation and/or documentation by the responsible party and the NYSDEC at the time the spill was discovered.
Factors Sosik considered when analyzing spills where testing confirmed the presence of gasoline constituents in groundwater at the site included:
BTEX and MTBE concentrations within the source area and at the property line, the presence of free phase gasoline, the degree of residual contamination in soil, the nature and date of the release, if known, the direction of groundwater flow, the distance from the site to the wellfield, type, degree, start date and success of remedial actions both at the site and off-site, if implemented, the use or lack of control measures to prevent off-site migration of MTBE from the site and timing and correlation with MTBE detections in the test well and other wells within the well-field or in the area.
Based on his analysis of the available information, Sosik concluded that certain spills were likely sources of contamination in nine of the eighteen focus wells, but opined that there was insufficient information for him to determine which gasoline spills were the source of MTBE in the remaining nine wells, although these wells are known to be contaminated with MTBE.
It is important to understand that Sosik eliminated many “suspect sites ... with confirmed gasoline releases to the subsurface” only because there was no evidence allowing him to confirm that the spills had contaminated the groundwater. Sosik did not conclude that these spills had not caused contamination in the wells. Indeed, other information exists about these releases with respect to many of the factors Sosik evaluated for spills with confirmed groundwater contamination, such as “the degree of residual contamination in soil, the nature and date of the release, if known, the direction of groundwater flow, the distance from the site to the wellfield, type, degree, start date and success of remedial actions both at the site and off-site, if implemented.” These spills may still be the cause of contamination in some of the wells. Or, an undiscovered release may have caused the contamination, because most gasoline leaks occur beneath the ground and are discovered only when a site is excavated or investigated for some reason.
Another fact important to the issues in these motions is when the gasoline releases occurred. Dates of releases are difficult to estimate for several reasons. Sosik notes that “releases of MTBE-containing gasoline are rarely a single, isolated release. Rather, releases at source sites typically involve more than one release over a period of time.” Further, most releases are only discovered long after they began, so the date of the spill report to the NYSDEC does not reflect the date of the actual spill. Despite these uncertainties, Sosik estimates that “[i]n the vast majority of the identified source sites, the most likely release date was in the mid to late eighties and early nineties.”
D. Plaintiffs’ Evidence Linking Gasoline Spills to Well Contamination
Defendants acknowledge that So-sik’s identification of spills at certain gas stations that caused or contributed to contamination in certain wells creates a fact issue with respect to whether the owner or operator of those gas stations caused contamination in the well. Accordingly, defendants whose gas stations are identified by Sosik as sources of contamination in certain wells do not seek summary judgment on claims arising from those wells. Rather, defendants argue that if plaintiffs’ expert does not conclude that a defendant caused contamination in a well, neither could a reasonable jury.
Plaintiffs respond that additional evidence about other known gasoline releases within each well’s capture zone — reports from spill investigations, information regarding the circumstances of the release, the directional flow of groundwater from a spill site toward the well — could support a jury’s conclusion that these other gasoline releases caused or contributed to MTBE contamination in a well, even though Sosik did not reach that conclusion. The issue for the Court is therefore whether the totality of plaintiffs’ evidence, without expert testimony, could support a jury finding that known gasoline releases within a well’s capture zone caused contamination in a well.
Plaintiffs’ argument rests on the methodology Sosik employed to reach the conclusions in his report. Although Sosik did not consider gasoline releases where the groundwater at the release site was never tested for gasoline contamination, he never concluded that these spills could not have caused or contributed to contamination in the nearby wells. Plaintiffs point out that he simply was unwilling to “confirm” a spill as a source of contamination without conclusive proof that gasoline constituents entered groundwater at the spill site.
There appears to be no reason why groundwater was tested at some spill sites but not at others. But while the presence of gasoline constituents in groundwater at a spill site helps prove that the spill contaminated a plaintiffs well water, because it shows that gasoline from that site has reached the area’s groundwater, such evidence is not required to prove causation. Taken together, other circumstantial evidence about a gasoline release could support a finding that a particular spill of gasoline within a well’s capture zone caused or contributed to MTBE contamination in that well. Such evidence includes the direction of groundwater flow from the spill site toward the well, the estimated volume of gasoline released, whether the release occurred on the ground’s surface or beneath the ground, where it would be more likely to affect groundwater as it reached greater depths and/or as rainwater passed through the contaminated soil, the correlation between the estimated date of the release and the date of MTBE detections in the well, and whether and to what extent the spill was cleaned up.
Neither party supports its argument with any cases discussing summary judgment of groundwater contamination claims based on the failure to prove causation. Defendants quote a product liability case, Healey v. Firestone Tire & Rubber Co., stating that “circumstantial evidence ... must establish that it