Arnold Goldstein et al v. Exxon Mobil Corporation, et al

NOTICE OF MOTION AND MOTION to Strike Portions of Plaintiffs' Motion for Class Certification and Declaration of Matthew J. Matern in Support Thereof

C.D. Cal.October 10, 2018

EXXONMOBIL’S MOTION TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M. RANDALL OPPENHEIMER (S.B. #77649) roppenheimer@omm.com DAWN SESTITO (S.B. #214011) dsestito@omm.com O’MELVENY & MYERS LLP 400 South Hope Street Los Angeles, California 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendant EXXON MOBIL CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ARNOLD GOLDSTEIN, et al., Plaintiffs, v. EXXON MOBIL CORPORATION, et al., Defendants. Case No. 2:17-cv-02477-DSF (SKx) DEFENDANT EXXON MOBIL CORPORATION’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DECLARATION OF MATTHEW J. MATERN IN SUPPORT THEREOF Judge: Dale S. Fischer Dept. 7D Date: February 25, 2019 Time: 1:30 p.m. Second Amended Complaint Filed: July 9, 2018 Case 2:17-cv-02477-DSF-SK Document 154 Filed 10/10/18 Page 1 of 5 Page ID #:7786 - 2 - EXXONMOBIL’S MOTION TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on February 25, 2019 at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 7D of the above- captioned Court, located at 350 West 1st Street, Los Angeles, California 90012, Defendant Exxon Mobil Corporation (“ExxonMobil”) will and hereby does move to strike the portions of Plaintiffs’ Motion for Class Certification and the Declaration of Matthew J. Matern in support thereof that rely on the “conclusions, findings, or recommendations” of the U.S. Chemical Safety and Hazard Investigation Board’s (“CSB”) final investigation report. See 42 U.S.C. § 7412(r)(6)(G). This motion is brought pursuant to Federal Rule of Evidence 402, as federal statute precludes admissibility of the CSB report. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on October 3, 2018. See C.D. Cal. L.R. 7-3. Case 2:17-cv-02477-DSF-SK Document 154 Filed 10/10/18 Page 2 of 5 Page ID #:7787 - 3 - EXXONMOBIL’S MOTION TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Exxon Mobil Corporation (“ExxonMobil”) hereby moves to strike from the record the portions of Plaintiffs’ Motion for Class Certification (“Certification Motion”) and Declaration of Matthew J. Matern in support thereof (“Matern Declaration”) that rely on the “conclusions, findings, or recommendations” of the U.S. Chemical Safety and Hazard Investigation Board’s (“CSB”) final investigation report. See Dkt. 85 at 9, 11-12;1 see also Dkt. 85-1 ¶ 3, Dkt. 85-2 (Ex. A). Specifically, ExxonMobil moves to strike page 9, lines 9-12; page 11, lines 19-28; and page 12, lines 1-15 of the Certification Motion (Dkt. 85), as well as paragraph 3 of the Matern Declaration (Dkt. 85-1), and Exhibit A thereto (Dkt. 85-2). The Court should strike these sections of the Certification Motion and Matern Declaration. The plain language of Section 7412(r)(6)(G) of Title 42 to the United States Code dictates that information taken from the “conclusions, findings, or recommendations” of CSB’s final investigation report cannot be “admitted as evidence or used in any action or suit for damages arising out of any matter mentioned in such report.” See 42 U.S.C. § 7412(r)(6)(G). Although ExxonMobil has raised this same objection numerous times—in its Reply in Support of Joint Motion to Dismiss and for Judgment on the Pleadings (Dkt. 32 at 7), Opposition to Plaintiffs’ Ex Parte Application for Continuance (Dkt. 70 at 7-8 n.2), and Opposition to Plaintiffs’ Motion to Modify Briefing Schedule (Dkt. 77 at 7-8 n.2)— Plaintiffs nevertheless continue to cite the CSB report in violation of this statute. Directly addressing this issue, the Fifth Circuit has confirmed that the plain language of 42 U.S.C. § 7412(r)(6)(G) prohibits the use or admission at trial of CSB’s conclusions, findings, or recommendations, including written reports and statements made by CSB representatives. See Terry v. BP Amoco Chemical Co., 574 F. App’x 410, 415 (5th Cir. 2014) (“The statute creating the CSB, however, 1 The page numbers cited herein refer to the ECF pagination of the Certification Motion (Dkt. 85). Case 2:17-cv-02477-DSF-SK Document 154 Filed 10/10/18 Page 3 of 5 Page ID #:7788 - 4 - EXXONMOBIL’S MOTION TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prohibits [plaintiff] from using [a CSB Safety Bulletin and a CSB press release] as evidence in this case.”). Here, Plaintiffs impermissibly use numerous conclusions and findings of the CSB report in their Certification Motion. See Dkt. 85 at 9, 11- 12. For instance, Plaintiffs state that CSB’s report “determined that the February 18, 2015 explosion ‘could have been prevented’” and that “[o]f note” in the CSB report “was the continued use of spent catalyst slide valve (‘SCSV’), a critical safety device, for two years past its’ [sic] visual inspection deadline, therefore missing the severe erosion and loss of effectiveness of that valve.” Id. at 11. Pursuant to federal statute, however, none of these findings may be “admitted as evidence” or “used” in this civil action for damages. See 42 U.S.C. § 7412(r)(6)(G). Congress has explicitly articulated the intent behind the statute’s prohibition on the use of such information in civil proceedings, explaining that “[i]n conducting its investigations, [CSB] will need the fullest cooperation from facility owners . . . involved in an accidental release to determine the probable cause of the event,” and that “[t]he likelihood that conclusions drawn from information provided to [CSB] will be used in a suit from [sic] damages will discourage full cooperation.” S. Rep. 101-228 (1989) at 3616-17. Furthermore, Congress noted that “the standard of evidence used by [CSB] in reaching its determinations of probable cause is likely to be less rigorous than evidentiary standards used in a civil proceeding” and stressed that it is “not the role of [CSB] to apportion blame or fix liability.” See id. at 3616- 18. Accordingly, this Court should strike all references to CSB’s “conclusions, findings, or recommendations” from the Certification Motion and the Matern Declaration.2 2 To the extent Plaintiffs suggest that ExxonMobil improperly resisted producing documents to CSB, they are incorrect. The District Court for the Central District of California found many of CSB’s requests unenforceable because they sought “information with such attenuated connections to the February 2015 release that they cannot reasonably be considered relevant even under the most liberal relevance Case 2:17-cv-02477-DSF-SK Document 154 Filed 10/10/18 Page 4 of 5 Page ID #:7789 - 5 - EXXONMOBIL’S MOTION TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ExxonMobil therefore respectfully requests that the aforementioned portions of Plaintiffs’ Certification Motion and Matern Declaration be stricken. Dated: October 10, 2018 M. RANDALL OPPENHEIMER DAWN SESTITO O’MELVENY & MYERS LLP By: /s/ Dawn Sestito Dawn Sestito Attorneys for Defendant EXXON MOBIL CORPORATION standard.” See United States v. Exxon Mobil Oil Corp., No. 17-cv-00066 (C.D. Cal. Nov. 3, 2017), Dkt. 26 at 6. Portions of that ruling are now on appeal. Case 2:17-cv-02477-DSF-SK Document 154 Filed 10/10/18 Page 5 of 5 Page ID #:7790