Madison - St. Clair Record

Tuesday, November 19, 2019

Exxon Mobil and Shell say plaintiffs don't claim injury in proposed MTBE class

By Steve Korris | Mar 8, 2007

Judge Hylla

In the sixth year of a proposed class action suit against Exxon Mobil and Shell Oil over groundwater contamination, the oil companies assert that plaintiffs have not even claimed they suffered injuries.

Plaintiffs Rhea McMannis and Howard Graham allege that the companies contaminated groundwater with methyl tertiary butyl ether, or MTBE, a gasoline additive.

Exxon Mobil and Shell Oil have asked Circuit Judge David Hylla to dismiss, arguing that McMannis and Graham did not allege any release of MTBE near their wells.

Exxon Mobil attorney Edward Cohen and Shell Oil attorney Michael Downey, both of St. Louis, wrote that plaintiffs simply alleged they had wells within 3,000 feet of Shell or Exxon Mobil gasoline stations.

"Plaintiffs do not even allege MTBE has been released at those gasoline stations," Downey and Cohen wrote.

"Simply put, plaintiffs have alleged no facts suggesting that future contamination of their properties by Exxon Mobil or Shell is anything more than a remote or a hypothetical possibility," they wrote.

McMannis and Graham had nothing to do with the case when the Korein Tillery firm of St. Louis sued a long list of oil companies in 2001.

Christine Moody of Korein Tillery proposed to certify lead plaintiff Frances Misukonis as representative of all owners of contaminated wells.

In 2005, all defendants but Shell Oil and Exxon Mobil settled with Korein Tillery.

The firm then filed an amended complaint asserting claims for McMannis and Graham against Shell Oil and Exxon Mobil.

McMannis and Graham proposed to represent all persons residing within 3,000 feet of an underground storage tank owned or operated by Shell Oil or Exxon Mobil.

The companies removed the suit to U.S. District Court, arguing that the amended complaint made it a new case under the Class Action Fairness Act.

Last October, U.S. District Judge Michael Reagan remanded it to Madison County.

By then Shell Oil and Exxon Mobil had filed a motion to dismiss in Madison County, in anticipation of the remand order.

Circuit Judge Don Weber set a Nov. 9 hearing on the motion to dismiss. On that day, having lost an election for a full term, he signed an order passing the case.

The case passed to Hylla, who has not set a hearing on the motion to dismiss.

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