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Monday, March 4, 2013 - Page updated at 05:30 a.m.
ExxonMobil to begin defense in NH pollution trial
By LYNNE TUOHY
Round two of New Hampshire's marathon groundwater contamination trial will open this week with defendant ExxonMobil calling its first witness.
Jurors were to return to the courtroom Monday after a weeklong break from testimony by hydrologists, economists, environmentalists and industry analysts as they determine if the state is owed damages for ExxonMobil's use of the gasoline additive MTBE.
The state filed its products liability lawsuit a decade ago against 26 oil companies and distributors, claiming MTBE 7/8- methyl tertiary butyl ether - is a defective product because of its propensity to travel farther and faster and contaminate larger quantities of water than gasoline without additives. The state is seeking more than $700 million to test and monitor 250,000 private wells and clean up an estimated 5,600 contaminated sites where drinking water is deemed unfit.
Lawyers for ExxonMobil claim MTBE did exactly what it was supposed to - replace lead in gasoline and cut smog in compliance with the 1990 Clean Air Act.
The jury has already heard testimony from 13 state witnesses over weeks and viewed videotaped depositions of a handful of other witnesses. The defense case is expected to rival the state's in witnesses and trial time, taking the case into late April.
ExxonMobil is the only defendant who has not settled with the state. When the trial began Jan. 14 Citgo was still a co-defendant, but two days in asked to be removed from the case - signaling settlement talks that eventually ended with Citgo agreeing to pay the state $16 million.
In all, the state has collected more than $120 million in settlement money.
The first defense witness is expected to be ExxonMobil environmental specialist Barbara Mickelson, who warned of MTBE's environmental hazards in the mid-1980s. Her memos were used extensively at the start of the state's case to question witnesses.
Former Department of Environmental Services Commissioner Robert Varney testified he was "shocked" her findings were never shared with the state.
Merrimack Superior Court Judge Peter Fauver issued an order before the case began that in-state witnesses may not discuss whether their own wells are contaminated or whether they test their wells for MTBE. Prospective jurors whose drinking water comes from private wells were excluded from consideration.
Court officials say the trial is the lengthiest and most complex in state history, requiring a separate docketing system to handle the volume of filings and the 50,000 labeled exhibits. More than 100 lawyers have filed appearances in the case and the witness list numbers 230 - although it's now clear most won't testify.
New Hampshire is the only state to have reached the trial stage in a lawsuit over MTBE.
Other lawsuits have been brought by municipalities, water districts or individual well owners, and most filed in the past decade have ended in settlements. New York City in 2009 won a $105 million federal jury verdict against ExxonMobil for MTBE contamination of city wells; that verdict has been appealed.
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