REPLY IN SUPPORT OF MOT. TO STRIKE CASE NO. 2:17-CV-02477-DSF (SKX)
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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 REPLY IN
SUPPORT OF 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 165 Filed 02/11/19 Page 1 of 4 Page ID #:9020
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Plaintiffs oppose Defendant Exxon Mobil Corporation’s (“ExxonMobil”)
Motion to Strike (“Motion”) the portions of their 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, in violation of CSB’s enabling statute. See Dkt.
158. Plaintiffs’ Opposition to ExxonMobil’s Motion to Strike (“Opposition”)
ignores the plain language of 42 U.S.C. § 7412(r)(6)(G), and the Congressional
intent underlying it, and misconstrues the Ninth Circuit authority that purportedly
“controls” here. Plaintiffs also incorrectly claim that “portions of the CSB report
are admissible,” but fail to specify which portions of the report and their
Certification Motion should be admitted. For these reasons, the Court should grant
ExxonMobil’s Motion.
I. Section 7412(r)(6)(G) and Its Legislative History Instruct that the
CSB Report Cannot Be Used and Sali Is Not Applicable.
Plaintiffs’ Opposition argues that, under Sali v. Corona Regional Medical
Center, a court may consider inadmissible evidence during the class certification
stage, and therefore, the information barred by Section 7412(r)(6)(G) should not be
stricken. But, Section 7412(r)(6)(G) does not just state that CSB’s “conclusions,
findings, or recommendations” are inadmissible. See 42 U.S.C. § 7412(r)(6)(G). It
also mandates that such information shall not be “used in any action or suit for
damages arising out of any matter mentioned in such report.” Id. (emphasis added).
Plaintiffs’ Opposition wholly ignores this portion of the statute, in
contravention of well-established Supreme Court guidance that “[i]t is a cardinal
principle of statutory construction” that a statute should be construed so that “no
clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v.
Andrews, 534 U.S. 19, 31 (2001) (internal citations and quotation marks omitted).
Plaintiffs also fail to address Section 7412(r)(6)(G)’s legislative history, which
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leaves no question that Congress intended to prohibit any use of CSB’s
“conclusions, findings, or recommendations” in civil actions: “The findings,
conclusions, and recommendations of [CSB] are not to be used in civil proceedings
for damages which result from an accident investigated by [CSB].” S. Rep. 101-
228 at 3616 (1989) (emphasis added). Otherwise, CSB would not be able to secure
the “fullest cooperation from facility owners and operators, equipment suppliers
and other parties involved in an accidental release to determine the probable causes
of the event.” Id.; see also id. (expressing concern that any “likelihood that
conclusions drawn from information provided to [CSB] will be used in a suit from
[sic] damages” could “discourage full cooperation” in a CSB investigation).
Furthermore, Plaintiffs’ reliance on the Sali decision is misplaced. Sali did
not concern, as here, a statute that completely prohibits the use of a federal
agency’s investigative findings in a civil action. See 909 F.3d 996, 1003 (9th Cir.
2018) (concluding the district court abused its discretion by declining to consider
evidence at the class certification stage solely because it was inadmissible under
Federal Rules of Evidence 701 and 702). Sali, therefore, has no impact on the
statutory bar established by Section 7412(r)(6)(G).
II. ExxonMobil’s Motion Should Be Granted in its Entirety.
Plaintiffs’ Opposition cursorily argues that ExxonMobil’s “request to strike
the entire [CSB] report should be rejected,” because portions of it do not constitute
“conclusions, findings, or recommendations.” See Dkt. 158 at 5-6. This argument
fails for two reasons. First, it is inconsistent with the weight of authority
interpreting Section 7412(r)(6)(G)’s reach. See, e.g., Terry v. BP Amoco Chemical
Co., 574 F. App’x 410, 415 (5th Cir. 2014) (unequivocally holding that the statute
“prohibits [plaintiff] from using [a CSB Safety Bulletin and CSB press release] as
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evidence” in their entirety);1 Sun Chemical Corp. v. Fike Corp., 2018 WL 3492143,
at *3 (D.N.J. July 20, 2018) (holding that a “CSB report could not be used as
evidence in the case” to support a motion for sanctions); Stallworth v. Packaging
Corp. of Am., 2018 WL 4869198, at *2 (W.D. La. Aug. 30, 2018) (granting a
motion to strike the CSB report attached to plaintiffs’ motion to remand).
Second, and more importantly, Plaintiffs have made no showing as to which
portions of CSB’s report do not constitute its “conclusions, findings, or
recommendations.” Neither ExxonMobil nor this Court should have to guess, and
the Court should therefore disregard this argument. Accordingly, ExxonMobil
respectfully requests that the Court 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).
Dated: February 11, 2019
M. RANDALL OPPENHEIMER
DAWN SESTITO
O’MELVENY & MYERS LLP
By: /s/ Dawn Sestito
Dawn Sestito
Attorneys for Defendant
EXXON MOBIL CORPORATION
1 While Terry is not binding precedent, given the limited case law addressing
Section 7412(r)(6)(G), it is nevertheless a persuasive illustration of the statute’s
broad application.
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