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IN RE METHYL TERTIARY BUTYL ETHER PRODUCTS LIAB. LITIGATION

April 20, 2005.

IN RE: METHYL TERTIARY BUTYL ETHER ("MTBE") PRODUCTS LIABILITY LITIGATION. This document relates to: Columbia Board of Education
v.
Amerada Hess Corp., et al., No. 04 Civ. 1716. Our Lady of the Rosary Chapel v. Amerada Hess Corp., et al., No. 04 Civ. 1718. American Distilling and Manufacturing Co., Inc. v. Amerada Hess Corp., et al., No. 04 Civ. 1719. Town of East Hampton v. Amerada Hess Corp., et al., No. 04 Civ. 1720. United Water Connecticut, Inc. v. Amerada Hess Corp., et al., No. 04 Civ. 1721. Escambia County Utilities Authority v. Amerada Hess Corp., et al., No. 04 Civ. 1722. Village of Island Lake v. Amerada Hess Corp., et al., No. 04 Civ. 2053. City of Rockport v. Amerada Hess Corp., et al., No. 04 Civ. 1724. City of Mishawaka v. Amerada Hess Corp., et al., No. 04 Civ. 2055. City of South Bend v. Amerada Hess Corp., et al., No. 04 Civ. 2056. North Newton School Corp. v. Amerada Hess Corp., et al., No. 04 Civ. 2057. Town of Campbellsburg v. Amerada Hess Corp., et al., 04 Civ. 4990. City of Galva, et al. v. Amerada Hess Corp., et al., No. 04 Civ. 1723. City of Park City v. Alon USA Energy, Inc., et al., No. 04 Civ. 2059. City of Dodge City v. Alon USA Energy, Inc., et al., No. 04 Civ. 2060. Chisholm Creek Utility Authority v. Alon USA Energy, Inc., et al., No. 04 Civ. 2061. City of Bel Aire v. Alon USA Energy, Inc., et al., No. 04 Civ. 2062. City of Marksville v. Alon USA Energy, Inc., et al., No. 04 Civ. 3412. Town of Rayville v. Alon USA Energy, Inc., et al., No. 04 Civ. 3413. Town of Duxbury, et al. v. Amerada Hess Corp., et al., No. 04 Civ. 1725. City of Dover v. Amerada Hess Corp., et al., No. 04 Civ. 2067. City of Portsmouth v. Amerada Hess Corp. et al., No. 04 Civ. 2066. New Jersey American Water Co., Inc., et al. v. Amerada Hess Corp., et al., No. 04 Civ. 1726. Basso, et al. v. Sunoco, Inc., et al., No. 03 Civ. 9050. Carle Place Water District v. Agip, Inc., et al., No. 03 Civ. 10053. City of New York v. Amerada Hess Corp., et al., No. 04 Civ. 3417. County of Nassau v. Amerada Hess Corp., et al., No. 03 Civ. 9543. County of Suffolk, et al. v. Amerada Hess Corp., et al., No. 04 Civ. 5424. Franklin Square Water District v. Amerada Hess Corp., et al., No. 04 Civ. 5423. Hicksville Water District v. Amerada Hess Corp., et al., No. 04 Civ. 5421. Incorporated Village of Mineola, et al. v. Agip, Inc., et al., No. 03 Civ. 10051. Incorporated Village of Sands Point v. Amerada Hess Corp., et al., No. 04 Civ. 3416. Long Island Water Corp. v. Amerada Hess Corp., et al., No. 04 Civ. 2068. Port Washington Water District v. Amerada Hess Corp., et al., No. 04 Civ. 3415. Roslyn Water District v. Amerada Hess. West Hempstead Water District v. Agip, Inc., et al., No. 03 Civ. 10052. Westbury Water District v. Agip, Inc., et al., No. 03 Civ. 10057. Northampton, Bucks County Municipal Authority v. Amerada Hess Corp., et al., No. 04 Civ. 6993. Craftsbury Fire District #2 v. Amerada Hess Corp., et al., No. 04 Civ. 3419. Town of Hartland v. Amerada Hess Corp., et al., No. 04 Civ. 2072. Buchanan County School Board v. Amerada Hess Corp., et al., No. 04 Civ. 3418. Patrick County School Board v. Amerada Hess Corp., et al., No. 04 Civ. 2070. Town of Matoaka v. Amerada Hess Corp., et al., No. 04 Civ. 3420.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

In this consolidated multi-district litigation, plaintiffs seek relief from defendants' alleged contamination, or threatened contamination, of groundwater with the gasoline additive methyl tertiary butyl ether ("MTBE"). The parties have already engaged in extensive motion practice, and familiarity with the Court's previous opinions is assumed.*fn1 Defendants now move, pursuant to Federal Rule of Civil Procedure 12(b)(6), for the complete dismissal of all the complaints filed in fifteen states: Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia, and West Virginia. While raising many issues, defendants' motions to dismiss focus in particular on the problem of product identification. Defendants argue that the complaints from all fifteen states must be dismissed because plaintiffs have failed to identify which defendant's MTBE-containing gasoline proximately caused their harm. In each of the relevant jurisdictions, plaintiffs must establish which product was responsible for causing their injuries in order to be granted relief.*fn2 If plaintiffs cannot do so, their cases cannot survive unless they can proceed on a theory of collective liability. Plaintiffs concede that they cannot identify the offending product due to its fungible nature, as well as the commingling of many suppliers' petroleum products during transportation and distribution. Thus, the primary question addressed in this decision is whether plaintiffs may proceed on their state law claims based on theories of collective liability.

  An important point must be highlighted at the outset, which raises the delicate consideration of the dual sovereignty of the federal and state courts. In the absence of a definitive ruling by the highest court of a particular state, this Court is called upon to predict what that court would decide if presented with the issue of collective liability.*fn3 This is the duty of a federal court when faced with an undecided issue of state law.*fn4 States have the primary responsibility to construe their own laws.*fn5 The Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 
The great innovation of this design was that "our citizens would have two political capacities, one state and one federal, each protected from incursion by the other" — "a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it."*fn6
Therefore, some federal courts — especially in diversity cases — have exercised great restraint in ruling on novel issues of state law.*fn7 While not adopting the Seventh Circuit's refusal to "speculat[e] about trends" in state law, the Second Circuit has stated that the role of the federal court is to "construe and apply state law as [it] believe[s] the state's highest court would, not to adopt innovative theories that may distort established state law."*fn8 Courts have noted that such caution is especially appropriate where plaintiffs choose to bring an action in federal court.*fn9

  Here, plaintiffs did not bring these actions in federal court in the hope of obtaining a broader interpretation of state law than they might reasonably expect to obtain from the state. All of these actions were originally brought in state court but removed to federal court over plaintiffs' vigorous objections. Thus, plaintiffs sought to have a state court interpret state law and should not be prejudiced by a removal they opposed.

  When a defendant removes a case from state to federal court, a liberal construction of state law protects the principle of dual sovereignty by protecting a party who sought to obtain a resolution of state law claims from state courts. If this Court were to adopt a more restrictive reading of state law than the highest courts of the relevant states would be likely to adopt, the parties would be treated differently than they would be in a state court — a result directly contrary to the fundamental goals of Erie, namely the "discouragement of forum-shopping and avoidance of inequitable administration of laws."*fn10 Therefore, while a court may not adopt "innovative theories" without support in state law, or "distort" existing state law, when a case is removed to federal court, the plaintiff is entitled to the same treatment it would receive in state court — no more, and no less.

  II. FACTUAL ALLEGATIONS

  A thorough recitation of plaintiffs' fact allegations is warranted because these motions will be decided on the pleadings. Although the complaints are not identical, they allege essentially the same facts.*fn11 Plaintiffs are generally cities, municipal corporations, and public and private water providers.*fn12 Defendants engaged in one or more phases of the petroleum business, including the design, manufacture, and distribution of gasoline containing MTBE.*fn13

  MTBE is chemical compound produced from methanol and isobutylene, a byproduct of the gasoline refining process. It is highly soluble in water and does not readily biodegrade. Because of its high solubility, MTBE races through the underground water supply, eventually contaminating wells and underground aquifers. MTBE can persist in underground aquifers for many decades, far longer than other components of gasoline. Even in very small quantities, MTBE imparts a foul taste and odor to water and renders it unusable and unfit for human consumption. MTBE is carcinogenic in animals and may be carcinogenic in humans, as well.*fn14

  Once it is released into the environment, MTBE lacks a "chemical signature" that would enable identification of the refinery or company that manufactured that particular batch of gasoline. 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. MTBE-containing gasoline from various refiners is commingled during its transmission via pipeline from refineries to distribution centers.*fn15

  Sometime after 1979, defendants began adding the oxygenate MTBE to gasoline in order to boost octane levels in higher grades of gasoline. Defendants claimed that MTBE helped fuel burn more efficiently to reduce air pollution. Although the Clean Air Act of 1990 required defendants to use oxygenates, there were many possible alternatives. Defendants chose MTBE so as to profit from a gasoline refining waste byproduct. Ironically, MTBE does not deliver defendants' promise of cleaner air, as it does little to reduce ozone air pollution and smog, and combustion of MTBE-containing gasoline in car engines actually increases exhaust emissions of toxic chemicals. MTBE that is discharged into the air contaminates groundwater through the return of rainfall.*fn16

  Defendants were aware that mixing MTBE with gasoline would result in massive groundwater contamination. They knew that there was a national crisis involving gasoline leaking from multiple sources, such as underground storage tanks, and that gasoline enters the soil from gas stations due to consumer and jobber overfills. Defendants studied and shared information with each other. For example, the American Petroleum Institute ("API"), a trade association representing the domestic petroleum industry (including defendants), formed a Toxicology Committee, which repeatedly discussed MTBE's propensity to contaminate groundwater. Although the Committee acknowledged the need for certain toxicological information, no ingestion studies on the effects of MTBE were ever performed.*fn17 Defendants had specific knowledge of instances of MTBE groundwater contamination during the 1980s and 1990s in Rockaway, N.J., Jacksonville, Md., Liberty, N.Y., and East Patchogue, N.Y.*fn18 Defendants were also aware of a paper entitled "Methyl Tertiary Butyl Ether as a Ground Water Contaminant" by Peter Garrett and Marcel Morceau, which recommended that MTBE be banned as a gasoline additive or at least be stored in double-contained facilities. Defendants banned together and tried unsuccessfully to change the authors' conclusions. Defendants' internal documents demonstrate their awareness of MTBE contamination of groundwater.*fn19

  Despite knowledge of MTBE's ill effects, defendants conspired to mislead plaintiffs, the EPA, downstream handlers, and the public about the hazards of adding MTBE to gasoline. Beginning in the early 1980s, defendants formed various task forces and committees under the auspices of trade organizations, such as the API, Oxygenated Fuels Association ("OFA"), and MTBE Committee, to convince the public and regulators of the desirability of increasing concentrations of MTBE in gasoline and to conceal the risk of MTBE contamination.*fn20 In furtherance of this conspiracy, defendants misled the EPA into not testing MTBE under the Toxic Substances Control Act during the late 1980s. Among other things, they provided joint comments through the MTBE Committee that "sufficient data exists to reasonably determine or predict that manufacture, processing, distribution, use and disposal of MTBE will not have an adverse effect on health or the environment, and that testing is therefore not needed to develop such data."*fn21 The Committee made other such comments that downplayed MTBE's risk to groundwater.*fn22

  In addition, defendants misled Congress into broadening the market for MTBE by including oxygenate requirements in the Reformulated Gasoline ("RFG") Program adopted in the 1990 amendments to the Clean Air Act. The idea for the RFG program was developed and promoted by the petroleum industry — not by the EPA or federal government. Through the amendments, Congress mandated the use of RFG containing at least 2% oxygen by weight in those areas of the country with the worst ozone and smog problems. In 1992, the EPA initiated the Oxygenated Fuels Program, which required at least 2.7% oxygen by weight in gasoline in certain metropolitan areas during the fall and winter months.*fn23

  Finally, defendants perpetuated their conspiracy by misleading plaintiffs and the public about the hazards of gasoline containing MTBE. By way of example, during a public presentation, an agent of the MTBE Committee represented that MTBE spills had been effectively dealt with. The API responded to an article critical of MTBE by claiming that there was no basis to question its continued use. And the OFA published and distributed a pamphlet indicating that contamination was rare. The OFA pamphlets even suggested that MTBE in groundwater provided a public health service by acting as an early indicator of gasoline contamination, thereby triggering cleanup and remediation. According to plaintiffs, had plaintiffs and the public been warned of the hazards of MTBE, they would have sought and demanded alternative oxygenates.*fn24

  After the creation of the RFG Program, defendants dramatically increased their use of MTBE. MTBE is now the second most frequently detected chemical in groundwater in the United States.*fn25 Because MTBE-containing gasoline is a fungible product, plaintiffs are pursuing their claims against defendants jointly and severally under applicable theories of collective liability.*fn26

  III. LEGAL STANDARD

  A. Rule 12(b)(6)

  A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.'"*fn27 At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn28

  The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn29 When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor.*fn30 Although the plaintiff's allegations are taken as true, the claim may still fail as a matter of law if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief, or if the claim is not legally feasible.*fn31

  B. Rule 8

  It is now well-established that a plaintiff need not "set out in detail the facts upon which [it] bases [its] claim,"*fn32 nor allege a prima facie case.*fn33 Pursuant to Rule 8, "a complaint must include only `a short and plain statement of the claim showing that the pleader is entitled to relief.'"*fn34 The issue is not whether a plaintiff has alleged certain facts, but whether the facts asserted give the defendant fair notice of the claim and the basis for such claim.*fn35 Fair notice is "`that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'"*fn36 This notice pleading standard "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims."*fn37 "If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding."*fn38 Accordingly, a claim can only be dismissed if "`no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn39

  An understanding of Rule 8's notice pleading standard is essential because the case law must be considered in this light.*fn40 Many of the states relevant to these motions are fact pleading jurisdictions, and therefore require plaintiffs to plead more in their complaints than merely providing notice.*fn41 To the extent these cases (or MTBE I)*fn42 suggest that every element of a claim must be alleged, they are inconsistent with the controlling pleading standards governing this case.*fn43 C. Rule 9(b)

  When a plaintiff alleges fraud, on the other hand, the defendant must be given more than notice of the claim. Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."*fn44 The objectives of the Rule are (1) to provide a defendant with fair notice of the plaintiff's claim to enable preparation of a defense; (2) to protect a defendant from harm to its reputation or goodwill; and (3) to reduce the number of strike suits.*fn45 Rule 9(b) must be read in conjunction with Rule 8's requirement of a "short and plain statement" of the claim.*fn46

  A fraud claim should specify the who, what, when, where, and how of the alleged fraud.*fn47 "Where multiple defendants are asked to respond to allegations of fraud, the complaint should inform each defendant of the nature of [its] alleged participation in the fraud."*fn48 Although scienter may be averred generally, the plaintiff must allege facts that give rise to a strong inference of fraudulent intent.*fn49 "The requisite `strong inference' of fraud may be established either (a) by alleging facts to show that defendants had both a motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness."*fn50

  An exception to Rule 9(b) is that fraud allegations may be based upon information and belief as to facts peculiarly within the opposing party's knowledge.*fn51 However, "the allegations must be accompanied by a statement of the facts upon which the belief is based."*fn52 D. Prediction of State Law

  "`Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve uncertainty or ambiguity.'"*fn53 In making a prediction of state law, federal courts "look to the state's decisional law, as well as to its constitution and statutes."*fn54 The "fullest weight" is accorded to the pronouncements of the state's highest court, while "proper regard" is given to the relevant rulings of the state's lower courts.*fn55 A court may consider cases from other jurisdictions on the same or analogous issues.*fn56 If the state has not passed on the question but the federal appeals court in the circuit where the state is located "has essayed its own prediction of the course of state law . . ., the federal courts of other circuits should defer to that holding."*fn57 However, a court is not bound by the relevant circuit court's decision if it is

 
persuaded that the holding ha[s] been superceded by a later pronouncement from state legislative or judicial sources, or that prior state court decisions had been inadvertently overlooked by the pertinent court of appeals . . . [,] the pertinent court of appeals ? disregarded clear signals emanating from the state's highest court pointing toward a different rule . . . [or the sitting court] can point to a clear basis in [state] law for predicting that the [state] courts, when confronted with a case such as [the one before it], would conclude that the [circuit court's] prediction was incorrect.*fn58
  In making the required predictions, a court must carefully consider any state constitutions, statutes or judicial decisions, as well as the law from other states, and any Restatements of the law.*fn59 When considering judicial decisions, those with facts most analogous to the issues presented to the court have the most persuasive authority. If after reaching these predictions, a state's highest court issues a ruling contrary to those predictions, a defendant may always renew a motion to dismiss based on the decision of the state's highest court. IV. THEORIES OF COLLECTIVE LIABILITY

  Defendants contend that because none of the fifteen states recognize the theories of concert of action, alternative, enterprise, or market share liability, plaintiffs will not be able to sustain their burden of proving causation. Plaintiffs respond that Rule 8 does not require them to plead theories of causation, but in any event, each state would adopt collective liability theories in the MTBE context. Plaintiffs add that in addition to the theories named by defendants, certain states might also apply the joint and several liability principle of concurrent negligence. Although Rule 8 does not require plaintiffs to plead a theory of causation, it does not protect a legally insufficient claim. The issue is whether plaintiffs can prove any set of facts that would entitle them to relief.*fn60

  Plaintiffs argue in the alternative that if the Court rejects all theories of collective liability, their claims should still not be dismissed because they may, following discovery, be able to prove causation through traditional proof of product identification. Defendants object to that argument on the ground that plaintiffs are bound by the admissions in their complaints that product identification is impossible. According to defendants, because these fifteen states do not recognize collective liability theories, plaintiffs have pled themselves out of court. The arguments made by both plaintiffs and defendants are devoid of merit.

  First, plaintiffs' claims cannot survive these motions to dismiss based on the mere possibility of plaintiffs identifying the manufacturer of the offending product during discovery. To accept this argument would be akin to granting preaction discovery to plaintiffs, which would impose onerous burdens on defendants and would encourage strike suits against participants in certain industries. It is not fair to require more than two hundred companies to defend against these MTBE claims if plaintiffs cannot name the actual tortfeasors, and the fifteen states do not relieve plaintiffs of that burden.

  Second, plaintiffs' statements of impossibility are not judicial admissions because they pertain to facts peculiarly in the knowledge and control of defendants. While "[a] party's assertion of fact in a pleading is a judicial admission by which it normally is bound throughout the course of the proceeding,"*fn61 judicial admissions generally pertain to matters that a party is uniquely positioned to know and concede, as opposed to facts uniquely known or controlled by an adverse party.*fn62 Trial judges are given broad discretion to relieve the parties from the consequences of judicial admissions in the appropriate circumstances.*fn63

  Plaintiffs assert that they cannot identify the wrongdoer based on the fungible nature of the MTBE-containing gasoline. However, if plaintiffs' claims survive based on theories of collective liability, then discovery will proceed. During that discovery, evidence might reveal that the offending product can be traced to a specific tortfeasor through the sales and distribution records of defendants. It would be unfair to treat plaintiffs' assertions as binding when defendants are in a better position to know who manufactured the injury-causing product, but have little incentive to provide that information. Plaintiffs' statements were based on an incomplete understanding of the relevant facts — many of which may surface in the course of discovery. If plaintiffs are able to discover which defendants caused their injuries, they will not be permitted to proceed on a theory of collective liability, but must pursue the actual wrongdoers and dismiss the remaining defendants. Accordingly, plaintiffs are not precluded from proving their case through individualized proof of product identification if they eventually discover whose products caused their harm.

  A. Concurrent Wrongdoing

  Ordinarily, "[w]hen two causes combine to produce injuries, one is not relieved from liability because [it] is responsible for only one of them. The negligence of two or more persons may concur, and each be liable."*fn64 For liability to attach, defendants' tortious conduct need not be simultaneous in time, but must combine to produce plaintiff's indivisible injury.*fn65 This concept of concurrent wrongdoing evolved to relieve plaintiffs of the burden of establishing several liability in cases where more than one defendant proximately caused the harm.*fn66 One court has explained:
Historically, several liability was employed in situations where the plaintiff's injury was divisible according to the causal contributions of multiple defendants. This use of several liability imposed a burden of proof on plaintiff to demonstrate the portion of the injury caused by each defendant. Thus, factual causation was the basis for determining the several-liability portion of the plaintiff's injuries for which each defendant was liable. Nevertheless, in cases in which proof was unavailable or difficult to obtain, many courts adopted joint and several liability to relieve the plaintiff of the difficulties of proof.*fn67
The burden of proving apportionment is shifted to the defendants because of the "injustice of allowing a proved wrongdoer who has in fact caused the harm to the plaintiff to escape liability merely because the harm which [it] has inflicted has combined with similar harm inflicted by other wrongdoers."*fn68 Cases applying the rule of concurrent wrongdoing typically involve a small number of tortfeasors, such that the imposition of joint and several liability does not cause disproportionate hardship to the defendants.*fn69 B. Concert of Action Liability

  The theory of concert of action is a principle of vicarious liability. One party is responsible for the acts of another if it

 
(a) does a tortious act in concert with the other or pursuant to a common design with [it], or
(b) knows that the other's conduct constitutes a breach of a duty and gives substantial assistance or encouragement so to conduct [itself], or
(c) gives substantial assistance to the other in accomplishing a tortious result and [its] own conduct, separately considered, constitutes a breach of duty to the third person.*fn70
The term "conspiracy" is often used where the wrongful acts were done pursuant to an express common plan or design to cooperate in tortious conduct.*fn71 In order for liability to attach, however, express agreement among the actors is not required. A mere tacit understanding is sufficient. The classic example of concerted action is a drag race, in which one driver is the cause-in-fact of the accident, but the other driver is also jointly liable for the injury.*fn72 Although the concert of action theory was not developed to ease a plaintiff's traditional burden of proving causation, it may have that effect.*fn73

  C. Alternative Liability

  Alternative liability, as adopted in Summers v. Tice,*fn74 provides that the burden of identification is shifted to the defendants where each defendant acted tortiously toward the plaintiff, one of the defendants caused the injury, but there is uncertainty as to which one.*fn75 Once the burden has shifted, each defendant may prove that it did not cause the plaintiff's harm, but failure to do so renders each jointly and severally liable. The basic difference between concert of action and alternative liability is that the former is a true joint tort, as all defendants acted together to produce the injury, while the latter involves independent acts by two or more tortfeasors.*fn76

  In Summers, the plaintiff sustained injury to his eye when two hunters negligently fired shots in his direction. Although the plaintiff could not determine which defendant's conduct had caused the injury, the trial court held both defendants liable. On appeal, the defendants argued that they were not joint tortfeasors because they had not acted in concert. The California Supreme Court disagreed and upheld the judgment. It reasoned that both defendants were negligent toward the plaintiff and "brought about a situation where the negligence of one of them injured the plaintiff, hence, it should rest with them each to absolve himself if he can."*fn77

  The doctrine of alternative liability is now embodied in Section 433B(3) of the Restatement (Second) of Torts. It notes that the policy underlying the shifting burden is "the injustice of permitting proved wrongdoers . . . to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them caused the harm."*fn78 Typically, alternative liability has been applied in cases where defendants' conduct was simultaneous in time, was of the same character, and created the same risk of harm, and where all potential tortfeasors were joined as defendants.*fn79

  D. Enterprise Liability

  The concept of enterprise, or industry-wide liability, originated in Hall v. E.I. Du Pont de Nemours & Co.*fn80 In Hall, thirteen children who were injured in separate blasting cap accidents, brought suit against six manufacturers, comprising virtually the entire blasting cap industry of the United States. Plaintiffs alleged that defendants' failure to place warnings on individual blasting caps created an unreasonable risk of harm. They further asserted that defendants knew of the high incidence of injury to children and consciously agreed not to place warnings on the caps. Defendants moved to dismiss on the ground that the complaint did not identify the specific manufacturer that caused a particular injury.

  The court held that "Plaintiffs' allegations of joint knowledge and action raise[d] issues of fact and law sufficient to defeat dismissal."*fn81 The court focused on three issues: (1) defendants' joint control of the risk; (2) the assignment of costs to those most able to reduce them; and (3) providing a remedy to innocent plaintiffs.*fn82 It reasoned that plaintiffs alleged that defendants had adhered to an industry-wide safety standard, that defendants had delegated safety functions to a trade association, and that defendants had explicitly cooperated in the manufacture and design of the blasting caps. It would be reasonable to relax the burden of proving proximate cause if the plaintiffs eventually demonstrated "defendants' joint awareness of the risks at issue in this case and their joint capacity to reduce or affect those risks."*fn83 The court emphasized, however, that its ruling was applicable to industries composed of a small number of actors and that it might be unreasonable if applied to a decentralized industry consisting of numerous producers.*fn84

  E. Market Share Liability

  The above theories proved to be inadequate in cases where plaintiffs alleged injuries resulting from their in utero exposure to the drug diethylstilbestrol (DES). DES is a synthetic estrogen hormone that was marketed to women as a miscarriage preventative from 1947 to 1971. In 1971, a link was discovered between fetal exposure to DES and the development many years later of adenocarcinoma of the vagina. Over two hundred manufacturers produced DES. Because of the long latency period and generic nature of the drug, many plaintiffs were unable to identify the precise manufacturer of the DES ingested by their mothers during pregnancy. In Sindell v. Abbott Laboratories,*fn85 the California Supreme Court fashioned its own theory of collective liability to accommodate the needs of DES plaintiffs.

  The Sindell plaintiffs brought a class action against eleven drug manufacturers, alleging that defendants were jointly liable because they had acted in concert to produce, market, and promote DES as a safe and effective drug for preventing miscarriages. The trial court dismissed the claims due to the plaintiffs' inability to identify which defendants had manufactured the DES responsible for their injuries. In reversing the decision, the California Supreme Court first declined to apply any of the then-existing theories of collective liability. The court found alternative liability to be inapplicable because all potential tortfeasors had not been joined.*fn86 Concert of action was not available because plaintiffs had merely alleged defendants' parallel action, rather than a tacit understanding or a common plan.*fn87 Finally, enterprise liability was unsuitable due to the large number of DES manufacturers and defendants' lack of joint control over the risk of harm.*fn88 The court recognized that in a "contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer."*fn89 Thus, rather than rigidly applying traditional tort principles, the court expanded alternative liability to encompass what is now known as market share liability.

  Under market share liability, the burden of identification shifts to the defendants if the plaintiff establishes a prima facie case on every element of the claim except for identification of the actual tortfeasor or tortfeasors, and that the plaintiff has joined manufacturers representing a "substantial share" of the DES market.*fn90 Once these things are established, each defendant is severally liable for the portion of the judgment that represented its share of the market at the time of the injury, unless it proves that it could not have made the DES that caused the plaintiff's harm.*fn91 In short, market share liability encompasses the defendants' burden in disproving causation and the apportionment of damages among defendants.

  The Sindell court based its decision on two policy considerations: (1) "as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury";*fn92 and (2) holding manufacturers liable would create an incentive to produce safer products.*fn93 The court thought it reasonable, under the circumstances, to measure the likelihood that any one of the defendants supplied the offending product by each defendant's share of the DES market. Furthermore, by apportioning liability according to market share, "each manufacturer's liability for an injury would be approximately equivalent to the damage caused by the DES it manufactured."*fn94

  Following Sindell, five states adopted some form of market share liability: Wisconsin,*fn95 Washington,*fn96 New York,*fn97 and Florida*fn98 in DES cases, and Hawaii in a case involving a blood product needed by hemophiliacs.*fn99 Although each court modified Sindell's formulation of market share liability, they all agreed that an innocent plaintiff should not be left without a remedy where each of the defendants acted tortiously; in that situation, it is reasonable to shift the burden of identification to the defendants.*fn100 In addition, each court held that liability is several, rather than joint and several, and is limited to the market share of each defendant, so that each defendant's liability would approximate the harm caused by that defendant's product.*fn101

  The majority of the remaining states have not addressed market share liability, but the ones that have done so have declined to apply it in cases involving non-fungible goods.*fn102 With respect to toxic substances, the tentative draft of the Restatement (Third) of Torts explains:
When market-share liability is limited to fungible products that pose equivalent risks to users who reasonably have no way to prove which manufacturer provided the product causing that plaintiff's harm, it has an exceedingly limited reach. . . . Only products that cause harm after a lengthy latency period between exposure and development of harm are likely to create the systemic proof problems that market-share liability addresses. Many toxic substances, including asbestos products, do not pose equivalent risks to all exposed to the products.*fn103
Hence, market share liability is uniquely suited to fungible product cases because such products (1) create the problem of non-identification in the first place, and (2) pose equal risks of harm to those exposed to the product.
 
Furthermore, the Restatement (Third) of Torts indicates: In deciding whether to adopt a rule of [market share] liability, courts have considered the following factors: (1) the generic nature of the product; (2) the long latency period of the harm; (3) the inability of plaintiffs to discover which defendant's product caused plaintiff's harm, even after exhaustive discovery; (4) the clarity of the causal connection between the defective product and harm suffered by plaintiffs; (5) the absence of other medical or environmental factors that could have caused or materially contributed to the harm; and (6) the availability of sufficient `market share' data to support a reasonable apportionment of liability.*fn104
At the very least, factors 1, 3, and 4 apply here. MTBE-containing gasoline is a fungible product because all brands are interchangeable, and because different concentrations of MTBE in different batches of gasoline do not affect its ability to contaminate groundwater.*fn105 As such, it is inherently difficult to identify the refiner that caused plaintiffs' injuries, and indeed, may be even more difficult than in DES cases because DES pills could be distinguished by appearance (e.g., color, shape, or size of the pills).*fn106 MTBE-containing gasoline is an indiscrete liquid commodity that mixes with other products during transport, and might not vary in appearance from batch to batch. According to plaintiffs, when it is released into the environment, it lacks even a chemical signature that would enable identification. Furthermore, because plaintiffs allege injury (i.e., contamination) from any amount of MTBE, defendants' products present equivalent risks of harm to all plaintiffs, regardless of the concentration of MTBE in the gasoline. Factor 2 cuts against application of market share theory because MTBE does not have a long latency period of harm. Plaintiffs allege that "MTBE races through underground water, spreading faster and further than other chemical components contained in gasoline . . . soon contaminating wells. . . ."*fn107 Factors 5 and 6 are neutral because it is not possible at the pleading stage to determine whether other environmental factors could have caused or materially contributed to the harm, or whether there is sufficient market share data to support a reasonable apportionment of liability.

  Although cognizant of the Court's obligation to apply state substantive law, I note that MTBE contamination presents as compelling a circumstance for the application of market share liability as does DES. At this early juncture, the balance of equities weighs in favor of applying market share liability. Although none of the factors are dispositive, great weight should be given to factor 1 because, as previously discussed, the fungible nature of goods creates the necessity for using the market share theory and ensures fairness in apportioning liability. Innocent water providers — and ultimately innocent water users — should not be denied relief from the contamination of their water supply if defendants breached a duty to avoid an unreasonable risk of harm from their products.

  F. "Commingled Product" Market Share Liability

  The review of the various theories of collective liability set forth above reveals that from time to time courts have fashioned new approaches in order to permit plaintiffs to pursue a recovery when the facts and circumstances of their actions raised unforeseen barriers to relief. Those courts made a policy decision that in balancing the rights of all parties, it would be inappropriate to foreclose plaintiffs entirely from seeking relief merely because their actions did not fit the parameters of existing liability theories. These MTBE cases suggest the need for one more theory, which can be viewed as a modification of market share liability, incorporating elements of concurrent wrongdoing.

  To that end, I shall now describe what I call the "commingled product theory" of market share liability. When a plaintiff can prove that certain gaseous or liquid products (e.g., gasoline, liquid propane, alcohol) of many suppliers were present in a completely commingled or blended state at the time and place that the risk of harm occurred, and the commingled product caused a single indivisible injury, then each of the products should be deemed to have caused the harm. By way of illustration, assume that the petroleum products of ten refiners are commingled in an underground storage tank. These ten products are completely fungible and blended, combined or commingled into a single batch. Each refiner supplied ten percent of the total volume of product in the tank. If twenty percent of the petroleum in the tank leaks into the ground, it is not reasonable to assume that the harm resulting from this leak was caused by the products of only two refiners (each supplying ten percent), and to require plaintiffs to prove which two proximately caused the harm. Because the petroleum products were commingled to form a new mixture, each of the ten refiners contributed to the injury in proportion to the amount of product that each supplied. Under this theory, each refiner actually caused the injury. Thus, if a defendant's indistinct product was present in the area of contamination and was commingled with the products of other suppliers, all of the suppliers can be held liable for any harm arising from an incident of contamination.

  Under such a theory, defendants would be severally liable because joint and several liability is unjust where "there [are] so large a number of actors, each of whom contribute[d] a relatively small and insignificant part of the total harm, that the application of the rule [of joint and several liability] may cause disproportionate hardship to defendants."*fn108 Damages should be apportioned by proof of a defendant's share of the market at the time a risk of harm was created to a class of potential victims. Finally, 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 new commingled or blended product.

  For this theory to apply, plaintiffs must identify only those defendants whom they believe contributed to the commingled product that caused their injury. Because the conceptual basis is different than traditional market share theory — i.e., that defendants' products were actually present and contributed to the injury — a plaintiff cannot just name all or substantially all of the participants in a particular market and expect defendants to exculpate themselves. Plaintiffs must conduct some investigation so that they can make a good faith identification of the defendants whom they believe caused their injury. It is unnecessary for plaintiffs to name all potential tortfeasors because they should be able to recover damages from any defendant that contributed to the harm, even if a defendant was not responsible for all of it. However, plaintiffs have an incentive to name all potential tortfeasors to maximize recovery as defendants would only be liable for their share of the damages. So long as plaintiffs allege that defendants marketed and sold MTBE-containing gasoline in the relevant zone of injury and defendants products were in a completely commingled state, defendants potentially contributed to plaintiffs' indivisible injury.

  This modification of market share liability is based on two features distinguishable from those instances in which market share liability has been applied. First, because the gaseous or liquid blended product is a new commodity created by commingling the products of various suppliers, the product of each supplier is known to be present. It is also known that the commingled product caused the harm. What is not known is what percentage of each supplier's goods is present in the blended product that caused the harm. In the traditional market share case, whether a defendant's product caused the harm is unknown, but because of the difficulties of proof, all manufacturers present in the market must bear a share of the liability. Since this "commingled product theory" applies to a specific set of products, it provides some assurance that all defendants found to be liable would have actually caused a plaintiff's losses. Under concert of action, alternative, enterprise, and market share liability theories, one or more of the defendants may not in fact have caused the harm, but they are held liable either because of their own generally tortious conduct (not toward the particular plaintiff), or their inability to exculpate themselves. Second, the harm caused by this commingled product need not have a long latency period prior to the discovery of the harm. While the harm may occur immediately upon contamination, this has no effect on the victim's ability to identify the actual tortfeasor.

  Because most of the states have not definitively passed on theories of collective liability, this Court must predict how the highest court of each state would resolve the issue in the context of MTBE contamination. I have carefully considered all state statutes and decisions, laws from other states, and the Restatement of Torts. I found those cases involving the commingling of fungible products to be the most persuasive, for these purposes, because they are most analogous to the present situation. Conversely, cases in which courts considered collective liability in the context of non-fungible goods were given less weight.

  V. CONNECTICUT

  The Connecticut Plaintiffs*fn109 assert the following claims: causes of action under (1) the Connecticut Products Liability Act ("CPLA");*fn110 (2) the Connecticut Unfair Trade Practices Act ("CUTPA");*fn111 (3) the Connecticut Environmental Protection Act ("CEPA") for declaratory and equitable relief against unreasonable pollution;*fn112 (4) CEPA for damages based on unreasonable pollution;*fn113 and (5) public nuisance; (6) private nuisance; (7) civil trespass; (8) fraud; and (9) civil conspiracy.*fn114

  A. Collective Liability

  In order for plaintiffs' claims to be cognizable, Connecticut would have to recognize some form of collective liability. The Connecticut Supreme Court has not yet considered the viability of such theories. However, its affirmance of the appellate court's decision in Sharp v. Wyatt, Inc.,*fn115 foreshadows the adoption of a hybrid theory of market share liability and concurrent wrongdoing.

  In Sharp, the administrators of three estates brought a wrongful death action against the decedents' employer, a wholesale distributor of petroleum products, and six oil suppliers, based on the decedents' asphyxiation in the employer's underground storage vault. Decedents were employed by the retail petroleum company Norbert E. Mitchell Co. ("Mitchell Fuel"). As part of its underground storage facilities, Mitchell Fuel maintained seven tanks; five contained number two fuel oil, one contained kerosene, and one contained diesel fuel. On the date of the accident, decedents entered the vault, and in accordance with their usual practice, descended without testing the oxygen levels in the vault or using protective gear. Each of the decedents collapsed at the bottom of the ladder and died from asphyxiation. It was undisputed that the three men died from insufficient oxygen in the vault, though the parties disagreed about how the condition arose.

  Wyatt, Inc., the wholesale fuel distributor, supplied roughly twenty-five percent of the oil stored in Mitchell Fuel's seven tanks — five percent of the number two fuel oil and one hundred percent of the kerosene and diesel fuel. Wyatt obtained its products from the six oil supplier defendants. Although defendants' commodities commingled with the petroleum products of other suppliers, these other companies were not joined as defendants in the action. The claims against Mitchell Fuel were dismissed as barred by the Worker's Compensation Act and the two year statute of limitations for wrongful death claims. Wyatt and the oil suppliers moved for summary judgment, in part, on the ground that the plaintiffs could not prove that their products caused the decedents' deaths.

  The trial court granted summary judgment in favor of the remaining defendants based on their percentage of Mitchell Fuel's inventory and the commingling of petroleum products in the tanks.*fn116 The court reasoned that "[m]athematical probabilities . . . suggest that some of the oil, although a small percentage, originally came from Wyatt, but six other wholesale suppliers sold the remaining 95 percent of the [number two] fuel oil to Mitchell."*fn117 Moreover, the "co-mingling of the oil in the tanks, and uncertainty as to the supplier of material that leaked from the tanks, makes it impossible to determine that Wyatt's oil was in the vault on the date in question."*fn118 The court rejected the plaintiffs' reliance on alternative liability because the plaintiffs had failed to join all, or substantially all, of the product manufacturers.*fn119 If they had, "the plaintiffs could at least claim that they had sued a defendant which caused the deaths, even if they could not pinpoint the responsible defendant or defendants."*fn120

  The appellate court reversed the decision, relying heavily on the Connecticut Supreme Court's analysis in Champagne v. Raybestos-Manhattan, Inc.*fn121 In that case, the decedent died from injuries caused by his exposure to asbestos products during the course of his employment. Over a sixteen-year period, the defendant had supplied the employer with a total of $130,000 worth of asbestos-containing products. However, two other asbestos manufacturers, who were not defendants, had annually provided the employer with $350,000 and $250,000 worth of asbestos products, respectively. After judgment was entered for the plaintiff, the defendant appealed, arguing that there was insufficient evidence that the decedent was exposed to the defendant's products. The Connecticut Supreme Court disagreed and held that "the jury reasonably could have found or inferred that he was exposed to the defendant's products based on the work that he was engaged in, the length of time he was employed, and the fact that coworkers who performed similar work testified that they handled the defendant's products."*fn122

  The appellate court in Sharp found that Champagne stands for the proposition "that a defendant may be liable when its defective product contributes to a condition giving rise to an injury or death."*fn123 Even though the evidence showed that defendants supplied only twenty-five percent of the leaking petroleum products, the court held that it was premature to conclude, as a matter of law, that plaintiffs could not establish proximate cause.*fn124 Furthermore, it was not fatal that plaintiffs had not sued Mitchell Fuel's other oil suppliers.

 
In the present case, the plaintiffs submitted evidence implicating the defendants as the suppliers of petroleum products that leaked into the vault. Although the defendants' products may not have been the sole cause of the deoxygenation, there was evidence indicating that they significantly contributed to the dangerous condition. They did so by the proportion of oil that they supplied to Mitchell.*fn125
Notwithstanding the mathematical odds, the appellate court concluded that a genuine issue of material fact existed as to the identification of the products that leaked into the vault. The Supreme Court of Connecticut affirmed the judgment, stating that the issues had been "properly resolved in a thoughtful and comprehensive opinion of the Appellate Court."*fn126

  The court's decisions in Sharp and Champagne are instructive for three reasons. First, they demonstrate that in a products liability case, the proximate cause requirement is not rigid — especially where defendants' products were present and could have been the cause in fact of the injury. It is difficult to imagine how a reasonable jury could find by a preponderance of the evidence that a defendant's product was a substantial factor in the plaintiff's injury where the defendant supplied less than half of the products at issue. Yet the Champagne court upheld a jury finding to that effect, and the Sharp court found product identification to be an issue of material fact in similar circumstances.

  Second, the state's highest court was willing to overlook difficulties of proof during the pretrial motion stage where the defendant contributed to a condition that caused harm to the plaintiff — in other words, where the defendant created a risk of harm to a group of people. This is consistent with the "risk contribution" theories of market share liability enunciated by the Wisconsin and Washington Supreme Courts and with the principle of concurrent wrongdoing.*fn127 Here, plaintiffs allege that all defendants contributed to the increased risk of water contamination by adding MTBE to gasoline and deceiving plaintiffs, the EPA, and the public about the product's adverse effects.*fn128

  Third, despite the low probability that the named defendants caused the injury, the court did not require that all potential tortfeasors be joined as defendants. It is not necessary to join all possible wrongdoers under either concurrent wrongdoing or market share theory, although defendants may implead other potential tortfeasors. Market share liability specifically permits plaintiffs to sue manufacturers representing only a substantial share, instead of the entire market.*fn129 And, in some variations of market share theory, the plaintiff need only sue one defendant.*fn130

  Based on the foregoing, I predict that the Connecticut Supreme Court would adopt a "commingled product theory" of market share liability. An important consideration in the court's decisions in Sharp and Champagne, was the fact that the defendants' products were actually present and combined to cause the plaintiffs' injuries. It was therefore unnecessary to prove causation in fact because each of the products was deemed to have caused the harm. Connecticut's highest court would therefore be likely to grant a plaintiff relief if (1) each defendant acted tortiously in manufacturing and distributing the fungible product in question; (2) defendants' products commingled or combined to form a new product; and (3) the commingled product caused a single, indivisible injury.

  With respect to apportionment, the Connecticut Supreme Court would most likely make defendants severally liable in accordance with market share liability, because the state legislature has eliminated joint and several liability in negligence actions through section 52-572h of the Connecticut General Statutes.*fn131 That statute modified the doctrine of concurrent wrongdoing to ensure that "no defendant [would] pay more than [its] fair share of damages, as measured by the relative degree of [its] fault in bringing them about."*fn132 To calculate a defendant's share, a court must examine the degree to which each defendant's conduct deviated from reasonable standards of care, rather than the degree to which the conduct causally contributed to the plaintiff's damages.*fn133 Furthermore, it would be inequitable to hold each defendant liable for plaintiffs' entire damage where there is a large number of defendants, each contributing only slightly to the harm. Here, there are over fifty named defendants in each of the Connecticut cases.

  Finally, Sharp indicates that a defendant's share of liability would be calculated by its share of the Connecticut market. In Sharp, the Connecticut Supreme Court recognized by implication the fungible nature of petroleum products and the effect that has on liability. Although both the trial and appellate courts in Sharp noted that the oil in the tanks had commingled, each court drew a different inference from that fact. The trial court thought summary judgment was warranted because it was impossible to determine if Wyatt's product was in the vault at the time of the accident. By contrast, the appellate court used it as a basis for determining that "the tanks had leaked their respective petroleum products into the vault in proportion to an amount attributable to each of Mitchell Fuel's suppliers."*fn134 Therefore, defendants had supplied twenty-five percent of the products accumulated in the vault. The Connecticut Supreme Court affirmed the latter interpretation, indicating that it was receptive to the notion that a defendant's market share approximates its level of culpability for injuries caused by its products. Accordingly, the Connecticut Plaintiffs may proceed on their claims on the basis of a "commingled product theory" of market share liability.*fn135

  B. Connecticut Products Liability Act

  The Connecticut Plaintiffs assert a cause of action under the CPLA, which provides: "A product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product."*fn136 The Act defines a "product liability claim" as including:
all claims or actions brought for personal injury, death, or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. `Product liability claim' shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.*fn137
  Defendants contend that plaintiffs' public nuisance, private nuisance, trespass, and civil conspiracy claims are barred because the CPLA provides the exclusive remedy for "defective product" claims, and each of these claims is predicated on the allegation that gasoline containing MTBE is a "defective product." Plaintiffs argue that these claims fall outside the scope of the CPLA because the claims do not allege that gasoline containing MTBE is a "defective product": (1) the public and private nuisance claims rely on the allegation that the migration of MTBE has contaminated the groundwater system; (2) the trespass claim alleges that defendants' failure to properly control MTBE-containing gasoline contributed to the contamination of property and water supplies; and (3) the fraud and civil conspiracy claims are predicated on defendants' efforts to suppress information and broadcast misinformation.

  The Connecticut Supreme Court has held that despite the use of the term "may" in section 52-572n of the CPLA [quoted above], the CPLA is the exclusive cause of action for products liability claims, and any cause of action that falls within the statute's scope must be dismissed as a matter of law.*fn138 However, the CPLA was not intended to affect other state statutory schemes.*fn139

  Here, plaintiffs' public nuisance, private nuisance, and trespass claims must be dismissed because they fall within the scope of the CPLA. In their nuisance and trespass claims, plaintiffs allege that defendants unleashed, allowed or failed to prevent the migration of MTBE into plaintiffs' groundwater and water systems. Defendants' conduct allegedly caused injury to plaintiffs in the form of water contamination; interference with the use or benefit of their property; injury to the health, safety, and comfort of other persons; and diminution in property value. Defendants could only have accomplished these alleged wrongs, however, through their roles as manufacturers and distributors of MTBE-containing gasoline. Indeed, plaintiffs allege that defendants "manufactured, distributed, marketed and promoted their product" even though they "knew or in the exercise of reasonable care should have known that the introduction and use of MTBE in gasoline" would endanger groundwater resources.*fn140 Although plaintiffs argue that these claims can be reasonably construed as outside the CPLA's reach, the complaints reveal that plaintiffs are seeking recovery for property damage resulting from defendants' manufacture, design, and marketing of MTBE-containing gasoline.

  Plaintiffs' civil conspiracy claims are also dismissed because they are preempted by the CPLA.*fn141 Plaintiffs allege that defendants acted in concert and colluded for the unlawful purpose of creating a market for MTBE with full knowledge of MTBE's environmental and health hazards.*fn142 In furtherance of that conspiracy, defendants allegedly chose to use MTBE instead of other oxygenates, failed to warn the public about, and actively concealed, the dangers of MTBE.*fn143 The damages asserted are substantially similar for the CPLA and civil conspiracy claims.*fn144 In Connecticut, a civil conspiracy claim is directed at damages,*fn145 and "extends liability to all conspirators for the damage that results `from any overt act committed by one of them pursuant to the combination.'"*fn146 In this instance, the civil conspiracy claims are redundant because the CPLA provides a remedy for the actions of which plaintiffs complain.*fn147

  Finally, defendants only challenge the fraud claim based on failure to plead with particularity, which I discuss below.*fn148

  C. Connecticut Unfair Trade Practices Act

  CUTPA provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."*fn149 The parties dispute the applicability of the statute to persons who are not consumers of the relevant product. Defendants argue that plaintiffs' CUTPA claims must be dismissed because plaintiffs do not have a consumer or business relationship with defendants, as required by the statute. Plaintiffs respond that they are "other business persons" covered by the statute because they are affected by defendants' deceptive acts through their business of serving water to their customers.

  The Connecticut Supreme Court has made clear that a consumer relationship is not required under CUTPA; a competitor or "other business person" can maintain a claim without showing consumer injury.*fn150 Because CUTPA's underlying goal is to ensure fair competition,*fn151 it "gives protection to wronged competitors and consumers but not to the world at large or any individual who might be injured by the activities of a business entity no matter what relationship the individual had with that business."*fn152 The business must have some type of commercial relationship with the alleged wrongdoer such that the latter's unfair and deceptive acts could adversely affect fair competition in that particular market.*fn153

  As such, the CUTPA claims must be dismissed because plaintiffs and defendants do not operate within the same marketplace. Plaintiffs are neither consumers of defendants' petroleum products nor defendants' competitors. Therefore, they must be "other business persons" within the meaning of CUTPA to maintain a claim. Plaintiffs provide potable water to customers, whereas defendants refine and market petroleum products. Although defendants' alleged unfair and deceptive acts might affect fair competition in the petroleum market, plaintiffs would not be affected in their ...


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