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IN RE METHYL TERTIARY BUTYL ETHER

October 16, 2001

IN RE: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT RELATES TO: ALL REMAINING CASES


The opinion of the court was delivered by: Scheindlin, District Judge.

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION*fn1

The plaintiffs in this consolidated multi-district litigation,*fn2 private well-owners, essentially allege that defendants, petroleum companies doing business throughout the United States,*fn3 knowingly caused the widespread contamination of groundwater as a result of their use of a gasoline additive known as methyl tertiary butyl ether—commonly referred to as MTBE. In January 2001, pursuant to a Court Order, the plaintiffs filed a Master Complaint,*fn4 asserting six state law claims against the defendants.*fn5 These claims, which are premised on defendants' use of MTBE, include: (1) strict liability for design defect; (2) negligence; (3) failure to warn; (4) deceptive business acts and practices in violation of section 349 of New York's General Business Law ("GBL § 349");*fn6 (5) public nuisance; and (6) conspiracy to market an unsafe product.

Defendants moved to dismiss plaintiffs' state law claims, asserting as one principal ground that these claims were barred by the doctrine of conflict preemption, as articulated by the Supreme Court in Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). Specifically, defendants argued that MTBE was a "federally approved" oxygenate that Congress intended and understood would be available as a means of complying with the oxygenate requirements set forth in section 211 of the Clean Air Act ("CAA"), 42 U.S.C. § 7545, and any finding of liability based upon defendants' use of MTBE would stand as an obstacle to the accomplishment and execution of the goals articulated in the CAA. In the August 20 Opinion, this Court denied defendants' motions to dismiss plaintiffs' claims on the ground of conflict preemption. See In re MTBE, 175 F. Supp.2d at 614-15, 623.

On September 4, 2001, defendants moved for reconsideration of that portion of the August 20 Opinion denying defendants' motion to dismiss plaintiffs' state law claims on the ground of conflict preemption. In the alternative, defendants sought an Order pursuant to 28 U.S.C. § 1292(b) certifying the following question for interlocutory review:

Whether statutory or common law causes of action based on defendants' use of methyl tertiary butyl ether ("MTBE") in gasoline pursuant to Section 211 of the federal Clean Air Act are conflict preempted?

Memorandum in Support of Defendants' Joint Motion for Reconsideration or, to Certify Question for Interlocutory Review at 2.

On September 7, 2001, this Court denied defendants' motion for reconsideration, finding that no controlling decisions or factual matters were overlooked that would have altered the decision. See In re: Methyl Tertiary Butyl Ether ("MTRE") Products Liability Litigation, MDL No. 1358, 2001 WL 10420.51, at *2 (S.D.N.Y. Sept. 7, 2001). For the reasons stated below, defendants' request for certification is now denied.

II. DISCUSSION

A. The Standard for § 1292(b) Certification

It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered." Koehler v. Bank of Bermuda, Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (finding certification inappropriate where there had been no discovery or a hearing on a question of personal jurisdiction). However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b) (emphasis added).

When considering requests for certification, district courts must carefully evaluate whether each of the above conditions are met. See Wausau Bus. Ins. Co. v. Turner Constr. Co., 151 F. Supp.2d 488, 491 (S.D.N.Y. 2001) (denying motion for certification where defendant could not demonstrate substantial grounds for difference of opinion as to controlling questions of law). The Second Circuit has urged courts "to exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. r. Nat'l Fuel Gas Distrib. Corp., 964 F.2d 85, 89 (2d Cir. 1992). Section 1292(b) must be construed narrowly, see Cromer Fin. Ltd. r. Berger, Nos. 00 Civ. 2284, 00 Civ. 2498, 2001 WL 935475, at *1 (S.D.N.Y. Aug. 16, 2001) (denying defendants' motions for certification because the issues were neither controlling nor presented substantial grounds for difference of opinion), and "only `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Indeed, even where the three legislative criteria of section 1292(b) appear to be met, district courts have "unfettered discretion to deny certification" if other factors counsel against it. Nat'l Asbestos Workers Med. Fend v. Philip Morris, Inc., 71 F. Supp.2d 139, 162-163 (E.D.N.Y. 1999) (assuming the statutory criteria were met but nonetheless denying certification).


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