126 A.3d 266
N.H.2015Background
- In 1991 New Hampshire opted into the federal Reformulated Gasoline (RFG) program, which allowed refiners to choose oxygenates such as MTBE; MTBE was used in NH gasoline 1995–2006.
- By the late 1990s evidence emerged that MTBE is highly water‑soluble, migrates in groundwater, resists biodegradation, and is costly/difficult to remediate; State regulation later set a 13 ppb MCL.
- The State sued multiple manufacturers/refiners for statewide groundwater contamination; all settled except Exxon, and after a 2013 jury trial New Hampshire obtained a $816.8M verdict, reduced to $236.4M against Exxon on market‑share allocation (Exxon ≈28.94%).
- Claims tried: negligence, strict liability (design defect), and strict liability (failure to warn); State proceeded in parens patriae/public‑trust capacity to remedy damage to state waters.
- On appeal Exxon raised many defenses (separation of powers, waiver, federal preemption, lack of duty/warning, insufficiency of causation and statistical proof, market‑share inapplicability, apportionment to nonparties, ripeness of future harms, and prejudgment interest).
- The court affirmed liability and most evidentiary rulings but reversed the trial court’s post‑verdict imposition of a trust over part of the damages award.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Exxon) | Held |
|---|---|---|---|
| Separation of powers re: statutory funds (ODD/GREE) | State: ODD/GREE funds do not preclude tort recovery; funds small/limited. | Exxon: legislative schemes occupy remedial field and bar this suit or judicial appropriation. | Court: No conflict; statutes don’t clearly preclude common‑law recovery; separation‑of‑powers challenge rejected. |
| Waiver / plaintiff misconduct | State: No express waiver; disputed historical knowledge; misconduct instruction covered State knowledge. | Exxon: State voluntarily opted into RFG with knowledge of MTBE and waived claims; needed explicit jury instruction. | Court: Waiver not preserved as distinct issue for appeal; misconduct instruction sufficiently encompassed the theory; any error harmless. |
| Federal preemption (Clean Air Act / RFG) | State: RFG did not require MTBE; allowing tort recovery doesn’t frustrate federal objectives. | Exxon: Federal law left choice among oxygenates; imposing liability for MTBE use frustrates federal program (Geier/Williamson analogy). | Court: No obstacle preemption; choice of oxygenates was not a protected significant objective; preemption rejected. |
| Standard of care / duty to warn | State: Evidence (internal Exxon memos, industry practice, alternative decisions) supports breach and failure to warn to users and the State. | Exxon: Industry used MTBE; no proof Exxon departed from standard of care; no duty to warn sovereign. | Court: Sufficient evidence for jury on breach and failure to warn (State had standing as user/parens patriae); duty to warn claim permitted. |
| Market‑share liability / causation | State: Fungibility and commingling made site‑by‑site tracing impracticable; market‑share is appropriate to apportion. | Exxon: New Hampshire shouldn’t adopt market‑share; insufficient/incorrect market data and improper measure. | Court: New Hampshire permits market‑share as alternate when plaintiff faces a practically impossible identification burden; jury findings supported application and allocation. |
| Use of aggregate statistical evidence & statewide proof | State: Sampling/statistical extrapolation is reliable and necessary to prove statewide harm and future impacts. | Exxon: Aggregate proof substitutes for individualized proof; other courts reject mass proof in MTBE cases. | Court: Trial court did not abuse discretion; experts’ methods admissible and statewide approach fit the case. |
| Apportionment to nonparties (RSA 507:7‑e / DeBenedetto) | State: Defendants failed to prove nonparty fault; defendants bear burden to show fault with adequate evidence. | Exxon: Trial rules and DeBenedetto required more specific linking of nonparties to claims; defendants were prejudiced. | Court: Trial court’s DeBenedetto notice and proof requirements reasonable; Exxon had opportunity but failed to carry burden—no reversible error. |
| Ripeness of future well impacts & prejudgment interest | State: Harm already exists; future testing/treatment costs are compensable and interest statute applies to total damages. | Exxon: Future/testing/treatment costs are speculative and unripe; prejudgment interest on those future amounts is inappropriate. | Court: Future damages were sufficiently probable and fit for adjudication; RSA 524:1‑b mandates prejudgment interest on total damages—award upheld. |
| Trust over verdict funds (post‑verdict) | State: No statutory or precedential basis to convert lump‑sum tort judgment into court‑supervised trust. | Exxon: Trust needed to ensure funds used for remediation and to protect res. | Court: Reversed imposition of trust—traditional lump‑sum damages is the proper remedy absent statute/authority. |
Key Cases Cited
- Geier v. American Honda Motor Co., 529 U.S. 861 (U.S. 2000) (examined whether state tort law obstructs federal regulatory choice among safety options)
- Williamson v. Mazda Motor of Am., 562 U.S. 323 (U.S. 2011) (clarifies Geier: choice in federal regulation is preemptive only when the choice is a significant regulatory objective)
- In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 725 F.3d 65 (2d Cir. 2013) (federal courts rejected obstacle preemption and analyzed MTBE‑related claims)
- Oxygenated Fuels Ass’n Inc. v. Davis, 331 F.3d 665 (9th Cir. 2003) (discussed MTBE, RFG program, and preemption issues)
- Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) (origin of market‑share liability for fungible products)
- Buttrick v. Lessard, 110 N.H. 36 (N.H. 1969) (New Hampshire adopted strict liability in products cases where traditional proof imposes an impossible burden)
- Trull v. Volkswagen of Am., 145 N.H. 259 (N.H. 2000) (placed burden on defendants for apportionment in enhanced‑injury cases)
- State v. Hess Corp., 161 N.H. 426 (N.H. 2011) (addressed State’s authority to recover MTBE‑related damages and parens patriae/public trust standing)