2013-0591 and 2013-0668, State of New Hampshire v. Exxon Mobil Corporation & a.

PLLC, of Washington, D.C. (Pa ul D. Clement on the brief and orally), and Weil, Manchester (Bruce W. Felmly and Patrick H. Taylor on the brief), Bancroft McLane, Graf, Raulerson & Middleton, Professional Association, of

th e brief), for the State. the brief), and Sher Leff, P.C., of San Francisco, California (Esther L. Klisura on Newton Centre, Massachusetts (Matthew F. Pawa and Benjamin A. Krass on Crimmins on the brief, and Mr. Frederick orally), and Pawa Law Group, P.C., of & Figel, P.L.L.C., of Washington, D.C. (David C. Frederick and Brendan J. attorney general, on the brief and orally), K ellogg, Huber, Hansen, Todd, Evans Joseph A. Foster, attorney general (K. Allen Brooks, senior assistant

2013 - 0 668 No s. 2013 - 0 591 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

became aware that MTBE could pose increased risks to groundwater. In 1998, employees at the New Hampshire Department of Environmental Services (DES) and p. 2 2006, gasoline with MTBE was sold throughout the S tate. In 1997, State’s four southern - most counties, effective January 1, 1995. Betw een 1995 New Hampshire joined the RFG Program in 1991, with respect to the

mandatory emissions reduction requirements. See 4 p. 2 2 U.S.C. § 7545(k)(6)(A). like New Hampshire, could opt in to the program to receive credit toward required to use reformulated gasoline. See 42 U.S.C. § 7545(k). Other ar e a s, Metropolitan areas with significant concentrations of ambient ozone were MTBE is a gas oline additive that increases the octane levels of fuels. tertiary butyl ether (MTBE) was one among several possible oxygenates. Id. the manufacturer’s choice. See 40 C.F.R. § 80.46(g)(9)(i) (2000). Methyl Program (RFG Program), which required gasoline containing an oxygenate of E nvironmental P rotection A gency (EPA) launched the Refor mulated Gasoline weight.” 42 U.S.C. § 7545(k)(2)(B). To implement th e requirement, the “[t]he oxygen content of the gasoline shall equal or exceed 2.0 percent by did not mandate the use of any particular oxygenate; it simply requir ed that Fuels Ass ’ n Inc. v. Davis, 331 F.3d 665, 666 (9th Cir. 2003). The amendment oxygenate is a substance used to reduce gasoline emissions. See Oxygenated standards. See 42 U.S.C. § 7545(k) (Supp. 1991) (amended 2005, 2007). An of an “oxygenate” in gasoline in areas not meeting certain national air qual ity In 1990, Congress amended the F ederal Clean Air Act to require the use

I. Background

imposition of a trust. award. We affirm the trial court’s rulings on the merits and reverse its court ’s order imposi ng a trust upon approximately $195 million of the damages trial in Superior Court (Fauver, J.). The State cross - appeals from the trial groundwater contamination to the plaintiff, the State of New Hampshire, after a from a jury verdict awarding approximately $ p. 2 236 million in damages due to Exxon M obil Oil Corporation (collectively, either Exxon or ExxonMobil), appeal DALIANIS, C. J. The defendants, Exxon Mobil Corporation and

America, as amicus curiae. Wyatt on the brief), for the Chamber of Commerce of the United States of and Washington, D.C. (Matthew J. Matu l e, John H. Beisner, and Geoffrey M. Skadden, Arps, Slate, Meagher & Flom LLP, of Boston, Massachusetts

brief), for the defendant s. Gotshal & Manges LLP, of New York, New York (Theodore E. Tsekerides on the p. 3 3

ExxonMobil) were the sole cause of the State’s harm,” that “the State than the State or ExxonMobil (which were not reasonably foreseeable to jury also found that Exxon failed to prove that “the actions of someone other distributors with adequate warnings of the hazards of MTBE gaso line.” The were known and recognized by the State”; and that Exxon “provided art”; that “the hazards posed by the use of MTBE in gasoline were obvious, or defenses that “in designing its MTBE gasoline, it complied with the state of the j ury found in favor of the State on all of its claims. T he jury rejected Exxon’s strict liability — failure to warn. After an approximately three - month trial, the 201 p. 3 3 on three causes of action: negligence; strict liability — design defect; and with the State. After almost ten years of litigation, t he case went to trial in allegedly caused by MTBE. Before trial, all defendants except Exxon settled chemical manufacturers seeking damages for groundwater contamination In 2003, New Hampshire sued several gasoline suppliers, refiners, and

20 05, Pub. L. No. 109 - 58, § § 1501, 1504, 1 1 9 Stat. 594, 1067, 1076 (2005). renewable fuels mandate to increase ethanol usage. See Energy Policy Act of 2015). In 2005, Congress eliminated the oxygenate requirement and en acted a banning MTBE gasoline effective in 2007. See RSA 146 - G:12 (2005) (repealed Fed. Reg. 490 p. 3 3 (Feb. 2, 2004). In 2004, t he legislature enacted legislation Reformulated Gasoline Program From F our Counties in New Hampshire, 69 the RFG Program, but did not receive a reply until 2004. See Removal of the In 2001, the G overnor petitioned the EPA to allow the State to opt out of

Gasoline, 65 Fed. Reg. 16094, 16097 (Mar. 24, 2000). Control Act to Eliminate or Limit the Use of MTBE as a Fue l Additive in Advance Notice of Intent to Initiate Rulemaking under the Toxic Substance

do not contain MTBE. more difficult and costly to remediate than gasoline releases that remediation, gasoline relea ses with MTBE can be substantially because MTBE is highly resistant to biodegradation and tendency to form large contamination plumes in groundwater, and private drinking water wells. Due to its affinity for water and its gasoline constituents, ma king it more likely to impact public and groundwater itself. As a result, it often travels farther than other that enters groundwater moves at nearly the same velocity as the water . . . and is highly resistant to biodegradation . . . . MTBE MTBE is capable of traveling through soil rapidly, is very soluble in

In 2000, the EPA advised:

drinking water and groundwater at 1 p. 3 3 parts per billion (ppb). adopted regu lations setting a maximum contaminant level for MTBE in studies from Maine and Cali fornia raised concerns about MTBE. In 1999, DES p. 4 4

and that Exxon fails to identify where it preserved its due process argument. because the arguments it rais es on appeal were not made to the trial court, asserts that Exxon failed to preserve its separation of powers argument 201 p. 4 4, 177:3, II (repealing RSA 146 - G:9, eff. October 1, 2025). The State (repealing RSA chapter 146 - G, excluding RSA 146 - G:9, eff. July 1, 2025), Laws Fund (GREE Fund), RSA ch. 146 - G (Supp. 2014); see Laws 2014, 177:3, I eff. July 1 2025), and the Gasoline Remediation and Elimination of Ethers ch. 146 - D (Supp. 2014); see Laws 2014, 177:1 (repealing RSA chapter 146 - D, conflicts with the Oil Discharge an d Disposal Cleanup Fund (ODD Fund), RSA separation of powers” and “due process.” Exxon also argues that the suit MTBE duty” imposed upon it “conflicts with bedrock princip les of the and the legislature’s failure to ban MTBE before 2007, “[t]he retroactive no upon the State ’s deci sion to participate in the RFG P rogram beginning in 1991, grounds of separation of powers and due process. Exxon assert s t hat based Exxon argues that the State’s suit should have been dismissed on the

I I. Separation of Powers and Due Process

court erred in awarding prejudgment interest on future costs. State’s damages claims for future well impacts are not ripe; and (1 1) the trial trial c ourt erred in deciding the State had parens patr iae standing; (10) the its ability to present evidence of fault on the part of other nonparties; (9) the rely upon ag gregate statistical evidence; (8) Exxon was unfairly prejudiced in a cceptable theory of recovery; (7) the State should not have been permitted to did not have a duty to warn the State; (6) market share liability i s not an establish that Exxon departed from the applicable standard of care; (5) Exxon by the 1990 amendments to the Federal Clean Air Act; ( p. 4 4) the State failed to should have been dismissed due to waiver; (3) the State’s claims are preempted dismissed on the grounds of separation of powers and due process; (2) the suit On appeal, Exxon contends that: (1) the State’s suit should have been

(2007). awarded the State p rejudgment interest in accordance with RSA 52 p. 4 4:1 - b amended verdict of $236,372, 644 against Exxon. The trial court subsequently the applicable time period was 28.94%. Accordingly, the trial court entered an jury found that Exxon’s market share for gasoline in New Hampshire during contaminated with MT B E at or above the maximum contaminant level. The drinking water wells; and (d) $150,607, 035 for treating drinking water wells to assess and clean up 228 high - risk sites; (c) $305,821, 030 for sampling damages included: (a) $142,120, 005 for past cleanup costs; (b) $218,219, 94 8 The jury awarded total damages in the amount of $816,768, 018. These

Exxon’s fault should be allocated to certain nonparties. committed misconduct t hat contributed to its harm,” or that some or all of p. 5 5

neither fund claims to be an exclusive remedy. of the type alleged here by the State. Finally, th e Court notes that isolated incidents at any given time, not a statewide contamination size indicates that it was intended to address a small number of funds for any and all contamination event[s]. Its relatively small legislature did not intend it to serve as the sole source of cleanup [i]t is reasonable to infer, then, that in creating the GREE Fund the

capped balance of the fund, the trial court stated that because the potential damages at issue in this suit far exceed the $2, p. 5 500, 0 0 0 that it does not contain an explicit limitation up on who may seek payment, sought by the State in this litig ation.” As to the GREE Fund, although noting did not demonstrate legislative intent “to provide a remedy for the damages facilities, or the land on which such facilities are stored” and, thus, the statute to disburse f unds to owners of underground storage facilities, bulk storage to the plain language of RSA 146 - D:6, I, and I - a, the Fund “is only authorized State’s exclusive remedy. As to the ODD Fund, the court found that pursuant establish that the legislature intended the ODD or GREE Funds to be the The trial court denied the motion, concluding that Exxon had failed to

appropriations - related s eparation of powers problems.” light of the existing funds and their structure, this suit implicates attorney general “to order such an appropriation.” Thus, Exxon argued, “[i]n the State requests,” it would violate separation of powers for the court or the could be specifically appropriated to the investigation, testing, and remediat ion mechanism through which any damages awarded to the State in this litigation purview.” Exxon asserted that, because “there is no existing statutory different way and create an appropriation o utside of the General Court’s and “this suit would allow the Attorney General to fund remediation in a very the legislative choice regarding how testing and remediation should be funded” legislature’s appr opriations power because the ODD and GREE Fund s “embody powers grounds, argu ing that the State’s suit threaten ed to usurp the Before trial, Exxon moved for summary judgment on separation of

separation of powers argument based upon the ODD and GREE Funds. process argument. However, we addr ess, as properly preserved, Exxon’s concerning the State’s purported public policy decisions, as well as its due State that Exxon failed to preserve its separation of powers argument Ct. R. 1 p. 6 6 - A (plain error rule). We have reviewed the record and agree with the Envtl. Servs. v. Town of Bethlehem, 1 p. 5 50 N.H. 606, 619 (2004). But see Sup. f ailure to do so bars a party from raising such claims on appeal. N. Country trial court.” Dukette v. Brazas, 166 N.H. 252, 255 (2014). Generally, the “specifically raised the arguments articulated in [its appellate] brief before the The appealing party bears the burden of demonstrating that it 6

legislature.” Id. at 2 p. 6 66. such a right is to be taken away, it must be expressed clearly by the construed.” Estate of Gordon - Couture v. Brown, 152 N.H. 265, 267 (2005). “If Statutory “provisions barring [a] common law right to recover are to be s trictly have said or add language that the legislature did not see fit to include. Id. from the statute as written and will not consider what the legislature might according to its plain and ordinary meaning. Id. We inte rpret legislative intent to the language of the statute itself, and, if possible, construe that language expressed in the words of the statute cons ider ed as a whole. Id. We first look interpretation, we are the final arbiter of the intent of the legislature, as Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014). In matters of statutory Statutory interpretation is a question of law, which we review de novo.

(citation omitted). only when one branch usurps an essential power of another.” Id. at 747 impenetrable barriers between the branches . . . and the doctrine is violated branch.” Id. at 74 p. 6 6 - 47. Nevertheless, Part I, Article 37 does “not provide for prohibited . .. from encroaching upon the powers and functions of another people.” Id. Thus, under the Separation of Powers Clause, “each branch is that would threaten the ability of our citizens to remain a free and sovereign government is essential to protect against a seizure of control by one branch N.H. 737, 746 (2007). “Separation of the three co - equal bran ches of part of its constitutional fabric.” Duquette v. Warden, N.H. State Prison, 154 the legislative, executive and judicial branches of government is an important Cloutier v. State, 163 N.H. 445, 451 (2012). “The separation of powers among ODD and GREE Funds, is a question of law, which we review de novo. See the State Constitution, N.H. CONST. pt. I, art. 37, because it conflicts with the Whether the State’s lawsuit violates the Separation of Powers Clause of

dangerous condition from liability.” of dangerous products or to free manufacturers that withhold knowledge of a intended to replace recovery actions for tortious activity against manufacturers those funds, their purposes, and their structures confirm that neither was its suit “is consistent with the ODD and GREE f unds” in that the “caps on ‘improvements’ to the democratically - enacted scheme.” The State argues that to address a particular problem that this Court has declined to make judicial precisely when the legislature has established a tailored regulatory framework spillers to pay the often substantial costs of remediation,” and that “[i]t is statutory schemes — the ODD Fund and the GREE Fund — to enable direct On appeal, Exxon argues that the le gislature “created two detailed

State’s suit does not threaten to usurp the legislature’s appropriations power.” the intent of the legislature to preclude suits such as this one” and that “the Accordingly, the court found that “the existence of these funds does no t evince p. 7 7

all of MTBE’s alleged defective properties, the State cannot now be allowed to knowledge that such gasoline would contain MTBE and with full knowledge of that “by requiring that RFG. . . gasoline be sold in New Hampshire, with full waiver. Before trial, Exxon moved for summary judgment, argu ing, in part, Exxon argues that the State’s suit should have been dismissed due to

II I. Waiver

based upon the ODD and GREE Funds. water systems). Accordingly, we reject Exxon’s separation of powers argument that the State may recover damages to test and treat statutorily defined public also State v. Hess Corp., 161 N.H. 426, 431 (2011) (MTBE defendants conceded legislative intent to preclude the damages sought by the State in this case. See statutory provisions establishing the ODD and GREE Funds indicating a We agree with the trial court that there is no language in either of the

financed in part by the ODD Fund. RSA 146 - D:3, VI (b); RSA 146 - G:1. Id. The fun d’s balance is capped at $2,500, 00 0. RSA 146 - G:4, II. The fund is preventive and cleanup measures concerning such gasoline ether discharges.” for research programs dedicated to the development and improvement of parties.” RSA 146 - G:4, I. “Not more than $150,000 shall be allocated annually and . . . the establishment of an acceptable source of potable water to injured provision of emergency water supplies to persons affected by such pollution, the adverse [e] ffects of gasoline ether discharges including, but not limited to, G:1, II. “Th [e GREE] nonlapsing, revolving fund shall be use d . . .. to mitigate groundwater and surface water contaminated by gasoline ethers.” RSA 146 neat gasoline ethers into the state and establish a fund for the remediation of discharges, encourage preventive measures, impose a fee up on importers of gasoline ether spillage, mitigate the adverse [e] ffects of gasoline ether and the ODD Fund, “is to provide procedures that will expedite the cleanup of Pollution Control F und establ ished pursuant to RSA 146 - A:11 - a (Supp. 2014) The purpose of the GREE Fund, a fund in addition to both the Oil

compliance with all relevant laws and rules.” mechanism for [underground storage tank] owners who are otherwise in offset tort liability for Defendan ts but rather to provide an excess insurance 146 - D:2 -: 3. As the trial court found, “the end goal of the ODD Fund is not to a per gallon basis by distributors who import oil into New Hampshire. RSA 146 - D:6, III. The ODD Fund is financed by a fee on imported oil that is paid on property damage and costs of cleanup of oil discharges up to $1,500, 00 0. RSA apply for reimbursement of court - ordered damages to third parties for injury or 146 - D:1 (e mphasis added). The ODD Fund allows owners of eligible facilities to and bulk storage facilities for the cleanup of oil discharge and disposal.” RSA addressing the costs incurred by the owners of underground storage facilities the cleanup of oil discharge and disposal, and to establish a fund to be used in The purpose of the ODD Fund is “to establish financial responsibilit y for p. 8 8

instruction was unnecessary is erroneous, “as misconduct and waiver are error.” Exxon also argues that the trial court’s reasoning that a waiver verdict finding waiver,” and the trial court’s “failure to instruct the jury is clear than an outright ban.” Thus, there was “a mpl e evidence to support a jury continuing MTBE’s use for nearly three more years was better for the State years, repeatedly opposed banning MTBE, and ultimately decided in 2004 that risks, the State op ted - in to the RFG program, participated in that program for On appeal, Exxon argues that, “with knowledge of MTBE groundwater

(C itations omitted.)

elements embodied in a waiver claim. instruction on [the State’s] misconduct encompassed the same gave an instruction on [the State’s] misconduct. In fact, the Court relevant to the issue of [the State’s] misconduct, and the Court This testimony goes to the issue of waiver but it is also

nature until the State of Maine published a study. present ed testimony that it did not become aware of MTBE’s full compound and asked the U.S. EPA for assistance. The State also contamination site, those employees were unable to identify the explaining that the first time State employees found MTBE in a The State countered this testimony with its own witnesses

thereby suggesting the State should have known about MTBE. that MTBE’s characteristics were wid ely known and understood prove the State’s knowledge by presenting witnesses that testified disputed its level of knowledge. D uring trial, Exxon attempted to develop regarding MTBE contamination. However, the State in to the RFG program, thereby waiving any claims it had or would argued that the State knew MTBE’s characteristics but still opted In its motion for summary judgment on waiver, Exxon

form.” In its order denying Exxon’s motion, t he trial court explained: then refused to include that instruction in its final instru ctions or in the verdict trial court instructed the jury on waiver in its preliminary instructions “but new trial. Exxon argued, in part, that it was “unfairly prejudiced” when the Following the jury verdict, Exxon mo ved to set aside the verdict and for a

knowledge, and timing of this awareness.” “genuine issues of disputed fact regarding the State’s knowledge, [Exxon’s] proceed under an implied waiver theory. T he court found that there wer e expressly waived its right to sue for harm f rom MTBE, Exxon could only motion, t he trial court n ot ed that, because Exxon did not assert that the State supplied MTBE gasoline to the State.” (Quotation omitted.) In denying the sue Defendan ts who thereafter complied with the State’s demands and p. 9 9

[and] participated in that program for years.” knowledge of MTBE groundwater risks, the St ate opted - in to the RFG program I n support of its waiver argument on appeal, Exxon asserts that “with used in New Hampshire to comply with the RFG program.” (C itation omitted.) Moreover, the evidence demonstrates that the State knew that MTBE would be opting - in to the RFG program with knowledge of MTBE’s characteristics. evide nce established that the State voluntarily encountered a known danger by proves that the State’s misconduct contributed to its injuries. First, the affirmative defenses,” Exxon argu ed that “[t]he evidence at trial overwhelmingly motion for JNOV that the evidence “overwhelmingly proved ExxonMobil’ s misconduct defense that it makes on appeal regarding wa iver. Asserting in its (JNOV) following the jury verdict, Exxon made the same argument regarding its We note that i n its motion for judgment notwithstanding the verdict

(Emphasis added.)

and failing to mitigate damages. or foreseen, voluntarily proceeding to encounter a known danger, dangers that the ordinary person or entity would have discovered the product, misuse of the product, failing to discover or foresee Misconduct includes, but is not limited to, abnormal use of

not that the State committed misconduct in its use of the product. ExxonMobil bears the burden to prove that it is more likely than cause its injuries. With respect to the State’s alleged misconduct, determine if the State committed misco nduct that contributed to negligently and that ExxonMobil is liable, you should then go on to dangerous, ExxonMobil failed to provide a warning, or behaved If you find that ExxonMobil’s product was unreasonably

trial cour t provided in pertinent part: Exxon’s “plaintiff’s misconduct defense” jury instruction as given by the

Id. court’s decisions on these matters for an unsustainable exercise of discretion. court. See State v. Littlefield, 152 N.H. 331, 334 (2005). We review the trial and wording of jury instructions are within the sound discretion of the tr ial Whether a particular jury instruction is necessary and the exact scope

waiver defense.” concluded that its misconduct instruction adequately encompassed Exxon’s and recognized by the State,” and that, in any event, the tria l court “correctly hazards posed by the use of MTBE in gasoline were obvious, or were known s pecial v erdict f orm reflects that the jury rejected Exxon’s defense “that the that, at trial, Exxon adduced no eviden ce of express or implied waiver, that the distinct defenses that are appropriately charged separately.” The State argues p. 10 10

that Congress and the EPA stressed the importance of MTBE as a further the regulation’s objectives. The Defendants further argue with a range o f oxygenate choices and the choice was designed to that the federal regulation deliberately provided manufacturers re MTBE Products Liability Litigation. Here, the Defendants claim are essentially identical to those made by the defendants during In

court explained that Exxon’s arguments United States District Court for the Southern District of New York. The tri al claims regarding the use of MTBE,” the trial court applied the reasoning of the States have considered whether the [C lean A ir A ct] preempts state tort law Noting that “[o]n numerous occasions, cour ts throughout the United

purpose of the Clean Air Act. Exxon’s argument that the State’s tort claims present an obstacle to the federal affirmatively chooses to make available to state actors.” The trial court rejected that “State law is preempted where it seeks to ban an action that federal law to be met by allowing refiners to choose MTBE as an additive to gasoline,” and Congress and the EPA “took actions providing that federal requirements were Air Act. Before trial, Exxon move d for summary judgment, arguing that Exxon argues that the State’s claims are preempted by the Federal Clean

IV. Federal Preemption

contributed to its harm. given the jury’s finding that the State did not commit misconduct that implied waiver defense to go to the jury, we hol d that any error was harmless Assuming, without deciding, that there was enough evidence for Exxon’s

misconduct instruction encompassed this affirmative defense. an independent waiver instruction because the plaintiff’s nonetheless rejected this theory. Thus, Exxon was no t entitled to MTBE contamination risks by knowingly using MTBE. The jury jury also considered whether the State waived any claims about knowledge — that the State knew of MTBE and used it anyway — the was instructed on and considered the is sue of the State’s responsible for its own injury. In other words, because the jury challenge it is now raising or should have been held partially characteristics of MTBE gasoline and thereby either waived any found that the State knew or should have known the Depending on the State’s knowledge, the jury could have

based upon that knowledge, the trial court reasoned: because they both address the State’s knowledge and subsequent actions Concluding that the waiver and misconduct instructions are similar p. 11 11

Clean Air Act and its RFG program. The Court rejected this l egal Exxon alleges the State’s claims are preempted by the federal view of preemption, there are no facts to support Exxon’s theory. verdict]. Even assuming New Hampshire courts would adopt this this argument in its [order denying Exxon’s motion for a direct ed further evaluate preemption, the Court considered and rejected on preemption in order to find facts from which the Court could [t]o the extent Exxon argues the jury should have been instructed

denied the motion. The court reasoned that argument it raised pretrial and in its directed verdi ct motion,” the trial court Noting that “[t]he preemption argument Exxon raises directly alleges the

[Act].” program and eliminating MTBE would have interfered with the goals of the able to choose among oxygenates, including MTBE, to comply with the RFG were preempted. . . because Congress specifically intended for ref iners to be Amendments.” Exxon asserted also that “as a matter of law, the State’s claims because ExxonMobil was required to use an oxygenate under the Clean Air Act use in New Hampshire” and, therefore, “the State ’s claim would be preempted facts” to support its argument “that MTBE was the only feasible o xygenate for form.” According to Exxon, the trial court erred because “there were sufficient ExxonMobil’s affirmative defense of preemption or include it in the verdict trial ar guing, in part, that the trial cour t “failed to instruct the jury on After the jury verdict, Exxon moved to set aside the verdict and for a new

for summary judgment. preemption claim and relied upon its earlier decision denying Exxon’s motion presented in a highly summary fashion,” the trial court declined to revisit the the requirements of RFG in New Hampshire.” Noting that Exxon’s argument “is demonstrating that no feasible alternative oxygenate existed sufficient to meet Act’s requirement that gasoline contain an oxygenate and the factual evidence “demonstrates that the State’s claims are preempted based on the Clean Air chief, based in part up on its assertion that the evidence presented Exxon moved for a directed verdict at the close of the State’s case - in -

history is irrelevant due to the unambiguous langua ge of the [A ct].” claims are preempted by the [C lean A ir A ct], and their use of the legislative Products], the Defendants here have failed to prove that the State’s tort law Ct. 1877 (2014). The trial court concluded that “[l]ike the defendants [in MTBE 336 - 42 (S.D.N.Y. 2006), aff’d, 725 F.3d 65 (2d Cir. 2013), cert. denied, 134 S. See In re Methyl Tertiary Butyl Ether (MTBE) Products, 457 F. Supp. 2d 324,

legis lative history of the [C lean A ir A ct] to support their arguments. choice and encouraged its use. Finally, they point to the lengthy p. 12 12

supplementary state regulation.” Id. (quotati on omitted). comprehensive to make reasonable the inference that Congress left no room for area may be inferred where the scheme of federal regulation is sufficiently emptive language, Con gress’ intent to pre - empt all state law in a particular state law by so stating in express terms.” Id. “In the absence of express pre - (1985). First, within constitutional limits, “Congress is empowered to pre - empt ways. Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 713 Congress may preempt state law u nder the Supremacy Clause in several

omitted). Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466, 2473 (2013) (quotation settled that state laws that conflict with federal law are without effect.” Mutual contrary notwithstanding.” U.S. CONST. art. VI. “Accordingly, it has long been bound thereby, anything in the Constitution or laws of any state to the “shall be the supreme law of the land; and the judges in every state shall be Prod’s, Inc., p. 12 126 N.H. 822, 826 (1985). Article VI provides that federal law S tates, 1 32 S. Ct. 2492, 2500 (2 012); see also Appeal of Sinclair Machine Supremacy Clause of the United States Constitution. See Arizona v. U nited N.H. 796, 801 (2014). The federal preemption doctrine is based upon the of law, our review is de novo. N. H. Attorney Gen. v. Bass Victory Comm., 166 Because the trial court’s determination of federal preemption is a matter

to MTBE existed.” (Quotations omitted.) EPA,” and that the trial evidence demonstrated that “safer, feasible alternatives opposed to ethanol) was not a significant regulatory objective of Congress or them.” The State contends that “enabling suppliers to choose MTBE (as raises here have been rejected by every federal court of appeals to consider this issue. The State argue s that “[p]reemption arguments like the one Exxon alternative to MTBE,” the trial court erroneously refused to instruct the jury on Exxon asserts that despite “ample evidence that there was no safer, feasible when maintaini ng the choice is a ‘ significant objective ’ of the federal program.” tort duty that would take one option off the table obstructs federal objectives mandate but leaves private parties with a choice of how to comply, a state - law Inc., 562 U.S. 323 (2011), “which establish that when federal law imposes a Motor Co., 529 U.S. 861 (2000), and Willi a mson v. Mazda Motor of A m erica, Exxon, “[p]reemption here follows a fortiori from” Geier v. Am erican Honda Exxon had no safer, feasible alternative to MTBE at the time.” According to supplying MTBE is preempted by the Cl ean Air Act, “particularly because On appeal, Exxon argues that a state tort duty holding it liable for

(C itation omitted.)

alter the legal analysi s this Court already undertook. argument. There are no facts that a jury could find that would p. 13 13

explained, oxygenate. As the United States Court of Appeals for the Second Circuit including gasoline containing MTBE, but did not mandate the use of any one the EPA certified various blends of gasoline for use in the RFG Program, (m)(2); see also 40 C.F.R. § 80.46(g)(9)(i). After the passage of the amendments, of an oxygenate of the manufacturer’s choice. See 42 U.S.C. §§ 7545(k)(2)(B), geographic areas to have a minimum oxygen content, achieved by the addition U.S.C. § 7545 (k). The RFG Program required gasoli ne used in specific Clean Air Act that, among other things, created the RFG Program. See 42 As discussed above, in 1990, Congress enacted amendments to the

(quotation, brackets, and citation omitted). source of the alleged preemption.” Bass Victory C omm., 166 N.H. at 803 question of congressional intent, our preemption analysis begins with the and brackets omitted). “Since preemption of any type fundamentally is a Congress is the ulti mate touchstone of pre - emption analysis.” Id. (quotation s (quotation, brackets, and ellipse s omitted). “Accordingly, the purpose of of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) to be superseded by Federal Act unless that is the clear and manifest purpose starts with the assumption that the historic police powers of the State s are not 294, 299 (1956). “Consideration of issues arising under the Supremacy Clause the scope of the po lice power” of the State. Shirley v. Comm issio n, 100 N.H. “The control and elimination of water pollution is a subject clearly within

omitted). acts cannot be reconciled o r consistently stand together.” Id. at 102 (quotation analysis unless the repugnance o r conflict is so direct and positive that the two “Indeed, federal law does not preempt state law under obstacle preemption (quotation s and brackets omitted), cert. denied, p. 13 134 S. Ct. 1877 (2014). power.” MTBE Products Liability Litigation, 725 F.3d 65, 101 - 02 (2 d Cir. 2013) particularly when the state law involves the exercise of tradit ional police law is generally not enough to establish an obstacle supporting preemption, preemption. . . is heavy: the mere fact of tension between federal and state Ct. at 2501 (quotation omitted). “The burden of establishing obstacle and execution of the full purposes and objectives of Congress.” Arizona, 1 32 S. preemption — that state law “stand [s] as an obstacle to the accomplishment Exxon relies upon the so - called “o bstacle branch” of conflict

purposes and objectives of Congress.” Id. (quotations and citation omitted). stands as an obstacle to the accomplishment and execution of the full fe deral and state regulations is a physical impossibility, or when state law federal law.” Id. This “conflict preemption” arises when “compliance with both specific area, state law is nullified to the extent that it actually conflicts with “Even where Congress has not complete ly displaced state regulation in a p. 14 14

it, including the agency’s explanation of the reasons for not requiring lap - and choice. Id. at 332. However, after reviewing the history o f the regulation before a choice and, like the tort suit in Geier, the tort suit at issue would restrict that regulation in Geier, the regu lation at issue before it left the manufacturer with lap - and - shoulder belts on rear inner seats. Id. Th e Court noted that like the doors or frames but gave them a choice of installing either simple lap belts or manufacturers to install lap - and - shoulder belts on seats next to a vehicle’s passenger vehicles. Williamson, 562 U.S. at 326. The law required 208 requiring that auto manufacturers install seatbelts on the rear seats of In Williamson, the Supreme Court considered a 1989 version of FMVSS

886. re gulation gave them, the Court found the state tort suit preempted. Id. at manufacturers of the choice among passive restraint systems that the federal the accomplishment of that objective in that the suit would have deprived the federal regulation. Id. at 87 4 - 83. B ecause the tort suit stood as an obstacle to different kinds of passive restraint devices was a significant o bjective of the effect, the Court concluded that giving auto manufacturers a choice among of its objectives, and the agency’s current views of the regulation’s preemptive including its history, the promulgating agency’s contemporaneous explanation to the obje ctives of the federal law. Id. at 886. After examining the regulation, federal law, the Court considered whether the state law stood as an “obstacle” i d. at 865. In determining whether, in fact, the state tort action conflict ed with suit that would have held a manufacturer liable for not installing airbags. See Court was whether the Act, together with the regulation, preempted a state tort 529 U.S. at 86 4 - 65, 875. The question before the United States Supreme passive restraint systems, including airbags and automatic seatbelts. Geier, restraint systems, but gave manufacturers a choice among several different of FMVSS 208 required manufacturers to equip their vehicles with passive National Traffic and Motor Vehicle Safety Act of 1966. In Geier, a 1984 version Vehicle Safety Standard 208 (FMVSS 208), promulgated pursuant to the Geier an d Williams on. Those cases both considered portions of Federal Motor We disagree with Exxon that preemption here “follows a fortiori” from

MTB E Products Liability Litigation, 725 F.3d at 98 (cit ations omitted).

oxygenates, such as ethanol, in its gasoline. nor the r egulations required Exxon to use MTBE, rather than other certain conditions in reducing air pollution. Neither the statute gasoline, but certification of a fuel meant only that it satisfied identified MTBE as one additive that could be used to “certify” manufacturers were to comply with this requirement. The EPA minimum level of oxygen, they did not prescribe a means by which required that gasoline in certain geographic areas contain a implicitly, that Exxon use MTBE. Although the 1990 Amendments the 1990 Amendments did not require, either expressly or p. 15 15

to preempt state tort judgments that might be premised on the use of one Program, “they hardly establish that Congress ha d a ‘clear and manifest intent’ magnitude of the economic burdens it might be imposing by virtue of the RFG (although legislative materials demonstrate that Congress was sensitive to the as a matter of law. See MTBE Products Liability Litigation, 725 F.3d at 103 establishing preemption. (Emphasis added.) This position has been rejected and increased costs to the expansion of the federal RFG program,” thus MTBE in gasoline during the period at issue here would have resulted in delays MTBE. Rather, the proposed instruction asked “whether prohibiting the us e of not ask the jury to find whether there was no safer feasible alternative to The record shows, however, that Exxon’s proposed jury instruction did

would apply if Exxon had no safer, feasible alternative.” (C itation omitted.) to consider the different and fact - dependent question whether preemption preempted even if there were safer, feasible alternatives, but later . . . refused [trial court] rejected the p urely legal argument that the State’s claims would be questions of fact.” Exxon asserts that “[a]t the summary judgment stage, the jury on this issue was error because “preemption questions can be informed by no safer, f easible alternative to MTBE,” the trial court’s refusal to instruct the We reject Exxon’s argument that “[d]espite ample evidence that there was

Id. at 338 (quotation omitted). that the regulated parties must remain free to choose among those options.” regulation]. . . doe s not just set out options for compliance, but also provides 337 (S o tomayor, J., concurring). Rather, “a conflict results only when [the federal regulatory objective and may be pre - empted.” Williamson, 562 U.S. at liab ility on the basis of one of the options is an obstacle to the achievement of a manufacturers a choice between two or more options, a tort suit that imposes “Geier does not stand . . . for the proposition that any time an agency gives furthering that goal.” MTBE Products Liability Litigation, 725 F.3d at 98 n. p. 15 15. improving air quality, and the existence of the choice itself is n ot critical to restraint devices, “[h]ere, the choice of oxygenate options is a means towards provided the manufacturer with a range of choices among different passive 2d at 33 6 - 3 7. Unlike Geier, in which the federal regulation deliberately oxygenates.” In re Methyl Tertiary Butyl Ether (MTBE) Products, 457 F. Supp. contains n o language mandating that [Exxon] have a choice among was a significant objective of the federal law. Indeed, “[t]he [Clean Air Act] itself history that supports a conclusion that the choice among oxygenate options Ex xon does not point to any part of the Clean Air Act or its legislative

preempt ed. Id. restraint was not a significant regulatory objective, the state tort suit was not at 334 - 36. Thus, the Court concluded that because the choice of the type of this seatbelt choice was not a significant objective of the federal regulation. Id. of the agency’s views, the Court concluded that providing manufacturers with shoulder belts for rear inner seats and the Solicitor General’s representations p. 16 16

standard of care.” would have d one, let alone that ExxonMobil deviated from any applicable establish the standard of care or what a reasonable manufacturer or supplier gasoline c ontaining MTBE in New Hampshire,” there was “no evidence to “demonstrated that the entire industry acted in the same manner in using omitted.) Exxon asserted that, because the evid ence presented at trial reasonable prudence would require under similar circumstances.” (Quotation obligated to present evidence that ExxonMobil failed to act pursuant to what order to establish th at ExxonMobil breached its duty of care, the State was directed verdict at the close of the State’s case - in - chief, Exxon argued that “[i]n applicable standard of care “simply by marketing MTBE.” In its motion for a Exxon argues that the State failed to establish that it departed from the

V. Standard of Care

jury instruction. federal law, and that the trial court did not err in refusing Exxon’s proposed W e hold as a matter of law that the State’s claims are not preempted by

compel a finding that state M T B E regulations are preempted). 00 - 2029, 2002 WL 1592604, at *3 - 5 (N.D. Tex. July 17, 2002) (Geier does no t the Clean Air Act); Abundiz v. Explorer Pipeline Co., No. CIV. 3: 00 - CV - H, 3.5 percent does not conflict with, and is not preempted by, any provision of requiring that all gasoline sold in wintertime have an oxygen content of at least Corp. v. U.S. E.P.A., 217 F.3d 1246, 1256 (9th Cir. 2000) (Nevada regulation MTBE ban does not conflict with any aspect of C lean Air Act); Exxon Mobil 170, 172, 182 - 83 (N.D.N.Y. 2003) (concluding after bench trial that New York are not preempted.”); Oxygenated Fuels Ass’n, Inc. v. Pataki, 293 F. Supp. 2d issue of preemption and MTBE, this Court finds that p laintiffs’ tort law claims F. Supp. 2d at 3 43 (“Just as the many other courts that have addressed the without using MTBE); In re M ethyl T ertiary B utyl E ther (MTBE) Products, 457 MTBE, it was impos sible for Exxon to comply with federal requirements Exxon’s arguments that because there was no safer, feasible alternative to caused by the use of MTBE does not conflict with federal policy, and rejecting (allowing plaintiffs to recover damages for inordinate environmental effects In re Methyl Tertiary Butyl Ether (MTBE) Products, 739 F. Supp. 2d at 601 - 02 725 F.3d at 100 - 03 (rejecting Exxon’s obstacle branch preemption arguments); issue of preemption and MTBE. See, e.g., MTBE Pr oducts Liability Litigation, We agree with several other courts that have addressed and rejected the

are a smoothly functioning market and cheap gasoline”). assertion that the Clean Air Act’s goals — for purposes of preemption analysis — Ass ’ n Inc., 331 F.3d at 673 (plaintiff “offered virtually no support for its approved oxygenate over a slightly more expensive one”); Oxygenated Fuels p. 17 17

consider these arguments again “[b]ec ause E xxon raises no new facts or law.” directed verdict ruling, the trial court relied upon that ruling in declining to ethanol.” Noting that it had previously rejected Exxon’s arguments in its requirements could not have been met without the use of MTBE in addition to and manufacturers agreed with E xxon’s assessment that the RFG p rogram’s groups within Exxon” to gain information, and that “[o]ther gasoline refiners considered the use of MTBE,” including consulting with “[a]t least nine different Exxon asserted that it presented testimony showing that it “c arefully that breached a standard of care” when the decision to use MTBE was made. reasonably prudent refiner or manufacturer or what actions ExxonMobil took “there is no evidence in the record regarding the standard of care for a Following the jury verdict, Exxon moved for JNOV, arguing, in part, that

(C itations omitted.)

gasoline. costs of a different nature than those associated with traditional foreseen the harm the State now alleges — increased remediation way, a reasonable jury could conclude that Exxon should have associated with MTBE remediation as early as the 1980s. In this Exxon’s possession of information regarding the expense than traditional gasoline spills. Other witnesses corroborated MTBE — that MTBE would take longer and cost more to remediat e that demonstrates Exxon received warnings against the use of The State admitted Barbara Mickelson’s memorandum to Exxon

State’s alleged harm occurred. The court stated: Exxon’s argument that it could not have foresee n all manners in which the (C itations omitted.) The trial court also rejected, as unsupported by the record,

provid ing a warning was unreasonable. selecting MTBE as its RFG formula oxygenate and doing so without from which a jury could conclude tha t Exxon’s behavior in members of the refining industry, it also serves as some evidence argument that the State failed to show the care exercised by other to have. This testimony not only directly contradicts Exxon’s because of the unique and increased ris ks Tosco perceived MTBE conducted. Bordvick testified that Tosco decided not to use MTBE manufacturer during the relevant time period of this case — regarding the risk - benefit analysis his company, Tosco — another I n fact, the State presented testimony from Duane Bordvick

Exxon’s actions were unreasonable. The court stated: other manufacturers and refiners in the industry, the State failed to show that because the State did not present evidence regarding the care exercised by T he trial court denied Exxon’s motion, rejecting its argument that p. 18 18

MTBE] that are not too well defined at this point.” The memo explained that as internal memo that “we have. . . ethical and environmental concerns [about The record supports that i n April 1984, an Exxon employee stated in an

but what reasonable prudence would require under the circumstances). Company, 90 N. H. 402, 403 (1939) (the test of due care is not custom or usage, 2d p. 18 182, 189 (D.N.H. 2010) (quotation and citation omitted); see Bouley v. negligence claims.” Bartlett v. Mutual Pharmaceutical Co., Inc., 742 F. Supp. But it is nonetheless a factor that the jury may consider in evaluating Hampshire law, because entire industries may lag behind the standard of care. with industry practice is no t an absolute defense to liability under New Millis v. Fouts, 144 N.H. 446, 449 (1999) (quotation omitted). “[C] onformity of the risk perceived is such that the conduct is unreasonably dangerous.” avoid a course of conduct; a duty arises because the likelihood and magnitude trier of fact. Id. “[N]ot every risk that might be foreseen gives rise to a duty to (2004). Whether the defendant breached that duty of care is a question for the similar circumstances. Carignan v. N. H. Int ’l Speedway, 1 5 1 N.H. 409, 414 The test of due care is what reasonable prudence would require under

156 N.H. 763, 767 (2008). review sufficiency of the evidence claims as a matter of law. Tosta v. Bullis, the evidence before it. See Sh aka v. Shaka, 120 N.H. 780, 782 (1980). We reasonable person could reach the same conclusion as the jury on the basis of Merrimack, 139 N.H. 253, 256 (1994). Our task is to determine whether a in whole or in part.” Society Hill at Merrimack Condo. Ass oc. v. Town of evaluate the credibility of the evidence and may choose to reject that evidence Town of Gilford, 160 N.H. 43, 55 (2010). “A fact finder has the discretion to City of Claremont, 135 N.H. 270, 287 (1992) (quotations omitted); see Sutton v. a matter of law or unsupported by the evidence.” Great Lakes Aircraft Co. v. witnesses. Id. Factual findings “will not be disturbed unless . . . erroneous as position to measure the persuasiveness of evidence and the credibility of House, Inc. v. Khoury, 120 N.H. 346, 350 (198 0). The trier of fact is in the best Weighing the evidence is a proper function of the factfinder. 93 Clearing

Exxon negligent. properly instructed the jury regarding the duty of care, and the jury found ample evidence that Exxon breache d the standard of care,” the trial court was no safer, feasible alternative.” The State argues that “[t]he record contains complied with the RFG program in the Northeast by using MTBE because there “the evid ence presented at trial showed that manufacturers overwhelmingly from the applicable standard of care simply by marketing MTBE, asserting that state law.” According to Exxon, the State failed to establish that it departed compare Exxon’s conduct, the State’s negligence claim . . . fails as a matter of MTBE at any time” and that “[w]ithout a relevant standard against w hich to the notion that a reasonable supplier in New Hampshire would never have used On appeal, Exxon argues that the State “offered no evidence to support p. 19 19

that it remain in the P rogram in p. 19 1997. He also testified that the State would that th e State opt in to the RFG P rogram in 1991 or before he recommended provide it with any information about those issues before Varney recommended MTBE groundwater contamination issues, Exxon did not warn the State or the relevant time, testified that, although Exxon knew as early as 1984 about Program gasoline. Robert Varney, who was the commissioner of DES during meetings, it was not disclosed that oil companie s would use MTBE in RFG officials and encouraged them to opt in to the RFG P rogram. During those industry lobbying group that included Exxon, met with New Hampshire oxyge nate in gasoline, members of the American Petroleum Institute, an After Congress amended the Clean Air Act in 1990 to require use of an

therefore not needed to develop such data. an adverse effect on health or the environment, and that testing is processing, distribution, use and disposal of MTBE will not have data exists to reasonably determine or predict that manufactur e, release of MTBE to the environment is negligible, that sufficient to health or the environment, that human exposure to MTBE and there is no evidence that MTBE poses any significant risk of harm

MTBE Committee represented to the EPA that way to drinking supplies (i.e. acqu [i] fers).” Nonetheless, in February p. 19 1987, the into groundwater because MTBE, “which is very soluble in water, can find its members, including Exxon, the EPA expressed concern about M TBE leaking issues” relating to MT B E. In a December 1986 meeting with MTBE Committee was formed to address “environmental issues” and “federal and state regulatory I n the 1980s, Exxon join ed the MTBE Committee, an industry group that

its unique contaminating properties. Exxon gasolines on a blanket basis throughout the United States” because of environmental risk point of view MTBE not be considered as an additive to higher by a factor of 5.” In p. 19 1985, Mickelson recommended t hat “from an closing - out of these incidents would take longer and treatment costs would be the widespread introduction of MTBE into Exxon gasoline” and that “the of well contamination incidents is estimated to increase three times following additionally contaminated by MTBE.” Mickelson concluded that “the number additive]. . . would not provide adequate treatment for water supplies Exxon to treat private drinking supplies contaminated by [an other gasoline She explain ed that the “[s]mall household carbon filtration units . . . used by gasoline additive] before soil attenuation processes stop the MTBE migration.” “MTBE when dissolved in ground water, will migrate farther than [an other are associated with the use of MTBE in gasolin e.” Mickelson stat ed that “information on additional potential ground water contamination problems that asked an in - house environmental engineer, Barbara Mickelson, for [to] tho roughly review the issues with management.” In August 1984, Exxon there were “strong economic incentives to use MTBE, a study should be started p. 20 20

would not do under the same or similar circumstances; or, failing something that an ordinary, prudent manufacturer or supplier action or inaction. That is, negligence may consist of either: doing The failure to use reasonable care may take the for m of

or supplier would use under the same or similar circumstances. care is the degree of care that an ordinary, prudent manufacturer Negligence is the failure to use reasonable care. Reasonable

As t he trial court instructed t he jury:

equipment changes. relying on MTBE in [Tosco’s] gasoline,” including refinery changes and other costs “woul d exceed . . . whatever costs may be associated with no longer costs, [and] potential lawsu its that may result”; and the “likelihood” that those water to cities”; “the potential liability for the use of MTBE, associated legal associated [with] potentially having to participate in replacement of drinking and evidence related to the difficulty of cleaning up MTBE”; “the cost factors including: “the growing evidence on the threat of MTBE contamination resources.” He testified that that conclusion was drawn based upon several drinking water resources and the associated liability . . . for restoring water company or its shareholders due to the “potential thre at to California’s decided “that long - term use of MTBE was not in the best interest of” the that in 1997 he made a statement on behalf of Tosco that the company had environment at Tosco Co rporation, a gasoline refinery in California, testified Duane Bordvick, a former senior vice - president for safety, health and

eventually find groundwater contamination.” experience in [the] US, it is fair to assume that other places using MTBE will that “non MTBE fuel leaks are more m anagable [sic],” and that “[b]ased on MTBE concentrations that effect [sic] the taste and odor in drinking water,” demonstrated the ability to stop leaks and spills to the level required to avoid employees observed in an internal communication that “industry has not fractured bedrock, a high density of private potable wells).” In p. 20 2000, Exxon potential for MTBE to ‘travel’ and impact receptors (e.g., shallow groundwater, England” due in part to “hydrogeologic site conditions which maximize the found that “[c]ost increases related to MTBE are significant for . . . New [in water] and less biodegradable than other gasoline components.” The study could be more difficult and costly to clean up because MTBE “is more soluble Exxon on the costs of cleaning u p MTBE not ed that spills containing MTBE in New England, many polluted solely with MTBE. That same year, a study by In 1999, Exxon had identified more than 100 known contamination sites

contained in Mickelson’s 1984 memo. not have opted in to the RFG P rogram if DES had known the information p. 21 21

State, as the consumer and in its parens patriae capacity, was an end user of required — would have been owed the warning.” T he court explained that “[t]he stating that “the State is the party who — if a jury determ ined a warning was regulatory entity, not as a user.” The trial court rejected Exxon’s arguments, focusing exclusively on ExxonMobil’s alleged failure to warn the State as a ExxonMobil failed to warn ‘u sers’ of gasoline containing MTBE, instead chief, Exxon argued, in part, that the State “failed to introduce evidence that In its motion for a directed verdict at the close of the State’s case - in -

been addressed in the prior order on the motion to dismiss. State itself.” The trial court agreed with the State that the issue had already “cannot premise a failure - to - warn claim on [Exxon’s] alleged failure to warn the arguing that because the Sta te was not a “user” or “consumer” of MTBE it later, Exxon moved for summary judgment on t he State’s failure - to - warn claim, State’s interests in its water are akin to those of a bystander.” Several years damage to the State’s waters.” The trial court rejected the argument that “the had properly alleged that “the defendants may be sought to be held liable for State “holds the waters of New Hampshire in trust for the public,” the State ple ade d. Based upon RSA 481:1 (20 13), the court concluded that because the Exxon’s alleged failure to warn of its defective product had been properly Th e trial court denied the motion, finding that the State’s claim regarding

dismissed. liability claims, Exxon argued that the State’s strict liability claims should be a third party bystander. Because New Hampshire does not recognize bystander expands the definition of “consumer,” and that the State should be class ified as MTBE, and is therefore entitled to bring a products liability claim, it improperly a lleging that when the State claims that, as a bystander, it is a consumer of gasoline. In 2008, Exxon moved to dismiss th e State’s failure - to - warn claim, sovereign, rather than as end user or consumer, of the characteristics of MTBE Exxon argues that it did not have a duty to warn the government as

V I. Duty to Warn

Accordingly, we uphold the t rial court’s rulings. standard of care by acting unreasonably under the circumstances. contains sufficient evidence to support a finding that Exxon breached the Viewed in the light most favorable to the State, w e hold that t he record

purpose. safe for its intended use and for any other reasonably foreseea ble or tests that are reasonably necessary to see that its product is A manufacturer or supplier has a duty to make inspections

supplier would do under the same or similar circumstances. to do something that an ordinary, prudent manufact urer or p. 22 22

omitted). Accordingly, we held that the State has parens patriae standing to population of a State in a substantial way.” Hess, 161 N.H. at 433 (quotation representative of its citizens where the injury alleged affects the general segment of its population. Id. at 187 - 88. “[A] state may act as the an injury to a quasi - sovereign interest, and alleged injury to a substant ial State satisfied the requirements of parens patriae standing because it asserted supply.” City of Dover, 153 N.H. at 186. In addition, we concluded that the physical and economic, of its residents with respec t to the statewide water it “has a quasi - sovereign interest in protecting the health and well - being, both State was the proper party to bring suit against the MTBE defendants, because In State v. City of Dover, 153 N.H. 181 (2006), we determined that the

the waters over which it is trustee. Hess, 161 N.H. at 432. RSA 481:1. As trustee, the State can bring suit to protect from contamination

boundaries. to provide careful stewardship over all the water s lying within its public benefit declares that it has the authority and responsibi lity future generations. The state as trustee of this resource for the protected, conserved and managed in the interest of present and precious and invaluable public resource which should be above or below ground constitutes a limited and, theref ore, determines that the water of New Hampshire whether located new and competing uses. The general court declares and resources of the state are subject to an ever - increasing demand for of the natural environment of the state. F urther, the water and safety of the people of the state and is essential to the balance an adequate supply of water is indispensable to the health, welfare

the State’s water. Pursuant to RSA 481:1, The General Court has declared that the St ate is the trustee over all of

with the State. user, or the citizenry represented by the State as parens patriae.” We agree that Exxon, thus, “failed to warn the State as regulator, the State as an end demonstrated that Exxon provid ed no warning about MTBE to anyone” and hinges on the State’s status as sovereign, the tri al evidence clearly difficulties.” The State argues that “although Exxon contends that the verdict limitations of New Hampshire tort law, and raises serious First Amendment the sovereign qua sovereign” is “wholly unprecedented, oversteps longstandin g On appeal, Exxon argues that “[t] he theory that there is a duty to warn

the State is a consumer itself.” assert claims brought on behalf of the people of New Hampshire. Additionally, MTBE gasoline. This Court has previously ruled the State has standing to p. 23 23

allegations of commingling of MTBE and the asserted indivisib le each injury would create an impossible burden given the requiring the State to allege specifically which defendant caused

denied the motion, finding that Defendants liable for the damages.” (Quotations omitted.) The trial court and how the damages occurred,” and “the legal theory for holding those damages,” “what damages it seeks to recover from those Defendants and when requiri ng the State to specify “which Defendants it seeks to hold liable for the liability in this case. Several years before trial, Exxon sought an order recovery and, that, even if it is, the trial court erred in applying market share Exxon argues that market share liability is not an acceptable theory of

V I I. Market Share Liability

sovereign.” Accordingly, we find no error. improper because it was premised upon a duty to warn the “sovereign qua We reject Exxon’s argument that the State’s failure - to - warn claim was

but it must be a substantial factor in bringing about the injury. warn. The failure to warn need not be the only cause of the injury, and if the harm would not have occurred without the failure to failure to warn is a substantial factor in bringing about the harm, A failure to warn amounts to a legal cause of harm when the

been used or would have been used differently. provided an adequate warning, MTBE gasoline would not have The State has the burden to prove that if ExxonMobil had

. . ..

the potential danger. intensity to cause a reasonabl e person to exercise caution equal to The manner of the warning is inadequate unless it is of such caused by a failure to use the product in the prescribed manner. specific language directed at the significant risks or dangers makes the potential harmful consequences apparent and contains the warning was adequate. The warning is inadequate unless it you may consider whether there was a warning, and, if so, whether In deciding whether there was a design defect in the product,

sovereign. Rather, t he t rial court instructed: T he jury was not instructed that Exxon owed a duty to the State as

Hampshire. City of Dover, 153 N.H. at 187 - 88. bring suit against the MTBE defendants on behalf of the residents of New p. 24 24

determining whether market share liability applies in certain circumstances, (Quotation, ellips i s, and brackets omitted.) T he court noted that in

appropriate in these recurring circumstances. adaptation of the rules of causation and liability may be manufacturer to consumer, courts should acknowledge that some standard of negligence is insufficient to govern the obligations of production and complex marketing methods the traditional fashion remedies to meet these changing needs. In an era of mass doctrine, denying recovery to those injured by such products, or to The response of the courts can be either to adhere rigidly to prior consumers and which cannot be traced to any specific producer. science and technology create fungible goods which may harm [i] n our contemporary complex industrialized society, advances in

that As the trial court explained, t he purpose behind market share liability is

a more reasoned approach to this case.” this case.” Accordingly, the trial court concluded that market share liability “is found that a specific site - by - site approach is unfeasible and unnecessary in Defendant’s gasoline found at a particular site,” and the court “has already “only reli eves the Plaintiff of its burden to prove the percentage of a particular that the “commingled product theory” does not apply here because that theory specific to the MTBE cases, . . . commingled product theory.” The court found alternative theories of liability,” including market share liability and “seemingly damages,” noted that courts “allow plaintiffs to prove causation th rough members of a group, who are engaged in the same activity, caused his or her where a plaintiff may not necessarily be able to identify, specifically, which In a subsequent order, the trial court, r ecognizing that “situations exist

(Quotation omitted.)

have led to a common, and more deleterious, result. conduct alleged may be part of group activity which is alleged [to] tortious acts, but to deny claims for tortious conduct where the tortious conduct for discrete, identifiable, and perhaps le sser To allow such a state of events would be to allow claims for

into the stream of commerce, thereby causing [the State’s] injury. claim is . . . that all defendants placed gasoline containing MTBE because of lack of individualized proofs where the gravamen of the would essentially allow the defendants to seek to avoid liability mandate the State to establish more particularized causation injury to the State of New Hampshire’s water supplies. To p. 25 25

interchangeable with other brands of the same product. As to the second sufficient facts for the court to conclude that MTBE is fungible, i.e., that it i s generic nature of the product, the court found that the State had alleged market share liability should be applied in this case. As to the first factor, the Applying the six Restatement factors, the trial court determined that

(Quotation and citation omitted.)

proving causation. makes such a showing is he entitled to a relaxed standard for harm is a se parate and distinct burden. Only after a plaintiff requirement to prove that a defendant breached his duty to avoid avoid an unreasonable risk of harm from their products.. . . The theory, he must prove that the defendants breached a duty to [e]ven where a plaintiff proceeds under a Market - Share Liability

that share liability “is synonymous with absolute liability,” the trial court explain ed Share Liabil i ty.” Dismissing as unfounded Exxon’s suggestion that market confident that existing New Hampshire law supports the application of Market - ‘practically impossible burden, ’” and that “[g]iven this willingness, the court is provide plaintiffs with a less stringent burden of proof where they face a New Hampshire Supreme Court has repeatedly expressed its willingness to Volkswagen of America, 145 N.H. p. 25 259 (2000), t he court reason ed that “[t]he liability. C iting Buttrick v. Lessard, 110 N.H. 36 (1969), and Trull v. trial court concluded, however, that New Hampshire recognizes market share liability theory, a nd that “the theory is contrary to New Hampshire law.” The causation, asserting that New Hampshire has not adopted the market share Exxon subsequently moved for summary judgment on the iss ue of

“these factors weigh heavily in favor of utilizing market share liability.” Liability § 1 5 comment c at 233 (1998). The court found that in this case (Quotation and ellipsi s omitted.) See Restatement (Third) of Torts: Products

liability. “market share” data to support a reasonable apportionment of contributed t o the harm; and (6) the availability of sufficient environmental factors that could have caused or materially suffered by plaintiffs; (5) the absence of other medical or causal connection between the defective product and the harm defend ant’s product caused plaintiff’s harm; (4) the clarity of the the harm; (3) the inability of plaintiffs to discover which (1) The generic nature of the product; (2) the long latency period of

provide a general framework for analysis: the Restatement (Third) of Torts: Products Liability sets forth six factors that p. 26 26

to conclude that all gasoline imported into New Hampshire was commingled determined t hat “the State presented sufficient evidence for a reasonable juror Considering Exxon’s first and fifth arguments together, the court

purpose of further explanation and clarification.” support its motion, the court addressed Exxon’s arguments “only for the all of these arguments before, and because Exxon r ais ed no new law or facts to its alleged injuries. Notin g that Exxon had raised, and the court had rejected, market; and (5) the State failed to establish the relevant market at the time of MTBE because it only presented evidence as to “a snapshot of” the wholesale identif y a substantial segment of the relevant market for gasoline containing could identify the suppliers that caused its alleged harm; (4) the State failed to back to the company that supplied it because, from 1996 to 2005, the State trier of fact could have found that the State could not trace MTBE gasoline jury’s finding that all gasoline containing MTBE was fungible; (3) no rational gasoline supplied in New Hampshire; (2) there was no evidence to support the market share for MTBE gasoline was 28.94% because that figure measured all insufficient for the jury to find it liable: (1) there was no evidence that Exxon’s for five reasons, the market share liability evidence the jury considered was Following the jury verdict, Exxon moved for JNOV, arguing, in part, that,

data to allow the State to proceed” on a market share liability t heory. data, the court found that the State’s experts had presented “enough market other factors contributed. As to the sixth factor, the sufficiency of the market con tributed to the harm, the court noted that Exxon had not asserted that fifth factor, whether other medical or environmental factors could have The trial court found the fifth and sixth factors favor the State. As to the

was sufficient. mathematical exactitude, the court concluded that the experts’ market data omitted.) Noting that it is impossible to determine market s hare with market share data specific to RFG and non - RFG counties).” (Quotation required the State “to introduce market share data as targeted as possible (e.g. gasoline market does not alone re flect the risk created and, thus, the court favors the State. The court agreed with Exxon’s general proposition that the connection between the defective product and harm suffered by the State, The trial court found that the fourth factor, the clarity of the causal

defendant [s’] MTBE gasoline was discharged into the environment.” storage tanks at stations, so it would be impossible to determine which of the this factor weighs in the State’s favor becau se “retailers commingled gasoline in inability to identify which defendant caused the harm, the trial court concluded that this factor weighs in favor of Exxon. As to the third factor, the plaintiff’s travels faster and further tha n other chemicals. Thus, the court concluded trial court found that the harm caused by MTBE was not latent because it factor, whether the harm caused by the product has a long latency period, the p. 27 27

alternative causes of action or theories of recovery.” The court concluded: plaintiff to identify the manufacturer of a product, not the absence of for its injury. The ‘last resort’ requirement focuses on the inability of the required the State to show that it could not identify the tortfeasor responsible require the State to prove that it could not establish traditional causation; it market share liability, the trial court stated that ma rket share liability “did not prove traditional causation in order to find the State entitled to rely up on Exxon’s argument that the jury needed to find first th at the State could not share liability] theories.” The trial court rejected Exxon’s arguments. As to wholesale suppliers, thus negating the need for or applicability of [market gasoline that allegedly caused the State’s harm could be traced back to the a wholesale supplier market share when it was undisputed that. . . the MTBE causation to prove its claims,” and that it was error “to permit the State to use compelled. . . to proceed on a site - specific basis and rely on traditional market share liability. Exxon argued that the State “should have been part, that the trial court erred as a matter of law by allowing the State to use Exxon also moved to set aside the verdict and for a new trial arguing, in

c ausation purposes. State met the requisites of relying on market share liability for evidence to this extent, and could thereby have found that the traced to a supplier, distributor, or refiner. The jury heard as the State alleged, once the gasoline causes harm, it cannot be supplier from a wholesale distributor or even the refinery because, wholly irrelevant that gasoline might be traceable to a particular once spilled or leaked; once it causes harm to the State. It is directed ve rdict rulings, was that MTBE gasoline is untraceable The State’s theory of the case, as addressed in pretrial, trial, and

refinery, the State failed to prove its market share case. The court stated: argument that, because MTBE gasoline could be traced to a supplier from the the facts of the case.” Finally, the trial court addresse d Exxon’s additional principles and methods; and she applied the principles and methods reliably to based upon sufficient facts and data; her testimony was the product of reliable had previously found the State’s expert qualified, and that her testimony “was [the State’s expert] provided, or a lower figure.” The court also observed that it it was for the jury to decide whether it would rely up on the 100 percent figure statistically likely to be comm ingled with MTBE to some concentration. Thus, a juror could reasonably conclude that all gasoline in New Hampshire was no ted that the State “presented evidence through various witnesses from which gas oline was fungible.” As to Exxon’s third and fourth arguments, the court “sufficient evidence from which a reasonable jury could find that MTBE respect to Exxon’s second argument, the court concluded that there was Exxon the share of the gasoline market that its supply represented.” With with MTBE gasoline. From there, the jury could reasonably have assigned p. 28 28

manufactured the DES responsible for her injuries. Id. at 926. the claims due to Sindell’s inability to identify which defendants had drug for preventing miscarriages. Id. at 925 - 26. The trial court had dismissed acted in concert to make, market, and promote DES as a safe and effective alleging that the defendants were jointly and severally liable because they had 931. P laintiff Sindell brought a class action against 11 drug manufacturers, manufacturer of the DES ingested by their mothers during pregnancy. Id. at nature of the drug, many plaintiffs were unable to identify the precise manufacturers made DES and, because of the long latency period and generic development many years later of adenocarcinoma. Id. Over 200 925. In 1971, a link was discovered between fetal exposure to DES and the w omen as a miscarriage preventative from 1947 to 1971. Sindell, 607 P.2d at the drug diethylstilbest e rol (DES), a synthetic hormone that was marketed to Sindell, the plaintiffs alleged injuries resulting from their in utero exposure to Supreme Court, Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980). In Market share liability has its roots in a 1980 decision of the California

of law de novo. Sanderson v. Town of Candia, 146 N.H. 598, 600 (2001). Matter of McArdle & McArdle, 162 N.H. 482, 485 (2011). We review questions are clearly untenable or unreasonable to the p rejudice of a party’s case. In the unsustainable exercise of discretion standard and reverse only if the rulings We review challenges to a trial court’s evidentiary rulings under our

held liable for its percentage of the supply, rather than the refining, market. properly ruled that the jury was entitled to determine that Exxon should be liability was not warranted on the facts of this case, and tha t the trial court of market share evidence, that Exxon has failed to show that market share share.” The State argues that traditional principles of tort law support th e use make that first jump” and that the trial court “applied the wrong market ever be appropriate under New Hampshire law, this would be a poor case to Hampshire law.” Exxon also argues that “[e]ven if market share liability would share liability in New Hampshire because it “departs from centuries of New On appeal, Exxon argues that the trial court erred in adopting market

(C itations o mitted.)

the weight of the evidence. tortfeasor responsible for its injury — was not conclusively against verdict — finding that the State was unable to identify the specific identify the specific tortfeasor responsible for its injury. The jury’s tended to fulfill the State’s burden of proving that it was unable to a contamination site to a retailer or supplier. This testimony impossible if not impossible to trace from a spill or leak back from every step in the distribution network, thereby making it virtually testified that MTBE gasoline is fungible and commingled at nearly D uring trial, the State presented several witnesses who p. 29 29

between the rights of the defendants and the rig hts of the plaintiffs); Payton v. share considerations were sufficient in DES context to achieve a balance (rejecting market share liability in asbestos case but recognizing that market context”); Case v. Fi b reboard Corp., 743 P.2d 1062, 1066 - 67 (Okla. 1987) inhospitable response to the theory of market - share liability in an appropriate 511, 5 p. 29 29 (N.J. 1989) (decision “should not be read as forecasting an that theory might arise in the future); Shackil v. Lederle Lab oratorie s, 561 A.2d market share liability in lead paint case, but recognizing that the need t o adopt Industries Ass’n, Inc., 690 A.2d 169, 172 (Pa. 1997) (deciding not to adopt adopting market share liability in the future. See, e.g., Skipworth v. Lead product). In other jurisdictions, courts have left open the possibility of (adopting market share liability theory in action against manufacturers of blood DES case); Smith v. Cutter Biological, Inc., 823 P.2d 717, 727 - 29 (Haw. 1991) 2d 275, 285 - 86 (Fla. 1990) (adopting market share a lternate liability theory in theory for a national market in DES case); Conley v. Boyle Drug Co., 570 So. and Co., 539 N.E.2d 1069, 1075 - 78 (N.Y. 1989) (adopting market share liability favor of market - share alternati ve liability in DES case); Hymowitz v. Eli Lilly 368, 380 - 82 (Wash. 1984) (rejecting Sindell market - share theory of liability in of market share liability in DES case); Martin v. Abbott Lab oratorie s, 689 P.2d e.g., Collins v. Eli Lilly Co., 342 N.W. 2d 37, 49 - 51 (Wis. 1984) (adopting a form S everal states have adopted some form of market share liability. See,

responsibility for the injuries caused by its own products.” Id. share of the market, “each manufacturer’s liability would approximate i ts each defendant liable for the proportion of the jud gment represented by its production of the drug sold by all for that purpose.” Id. at 937. By holding percentage which the DES sold by each of them. . . bears to the entire the defendants supplied the product which allegedly injured p laintiff by the reasonable, in the context of the case, “to measure the likelihood that any of provide an incentive to product safety.” Id. at 936. The court held it to be its pr oducts and to warn of harmful effects . . . , holding it liable . . . will manufacturer “is in the best position to discover and guard against defects in the injury”; and (2) “[f] rom a broader policy standpoint,” because the innocent plaintiff and negligent defendants, the latter should bear the cost of The court based its decision up on two considerations: (1) “as between an

that caused the plaintiff’s injuries. Id. at 937. the time of the injury, unless it proves that it could not have made the DES liable for the portion of the judgment that represent s its share of the market at 936 - 37. Once these elements are established, each defendant is severally joined the manufacturers of a “substantial share” of the DES market. Id. at claim except for identification of the actual tortfeasors, and the plainti ff has defendants if the plaintiff establishes a prima facie case on every element of the Under market share liability, the burden of identification shifts to the alternative liability to encompass what is now known as market share liability. In reversing that decision, the California Supreme Court expanded p. 30 30

defendants because the plaintiffs would otherwise have been “relegated to an which to the design defect. Id. at 265. That burden was placed up on the defenda nts to show which injuries were attributable to the initial collision and car, and, once they had made that showing, the burden would shift to the producing damages over and above those caused by the original impact to their plaintiffs were required to prove that a design defect was a substantial factor in involving indivisible injuries. Trull, 145 N.H. at 260. In Trull, we held that apportionment up on defendants in crashworthiness or enhanced injury cases Based upon this rationale, we subsequently placed the burd en of proving

omitted). Env ironmen t Corp., 127 N.H. 556, 560 (1986) (citation s and quotation without which Buttrick would have gone the other way.” Bagley v. Controlled practically impossible burden. This was the compelling reason of policy products liability cases had proven to be, and would continue to be, a the recognition that the need to establish traditional legal fault in certain Id. A s we later not ed, what was crucial to our policy analysis in Buttrick “was

of either the injured person o r the marketer or ma nufacturer. defect in manufacture occurred is generally beyond the knowledge The purchaser of the present day is not in this position. H ow the determine whether negligence caused the defect and if so whose. sufficient to enable him to not only locate the defect but to the same person. Knowledge of the then purchaser . . . was products were simple and the manufacturer and seller generally prove the manufacturer or seller negligent was evolved when T he rule requiring a person injured by a defective product to

We explained: manufacturer u sing mass production techniques. Buttrick, 110 N.H. at 39. plaintiff due to the difficulty of proving breach of a duty by a distant the plaintiff to prove negligence would impose “an i mpossible burden” on the Lessard we adopted strict liability for design defect claims because requiring theory and that the theory is proper on the facts of this case. In Buttrick v. Hampshire would recognize market share liability as an alternative liability We disagree with Exxon that the trial court erred in concluding that New

injury). have acted tortiously, but only one unidentifiable defendant caused plaintiff’s version of alternative liability” will be applied in cases in which all defendants Eli Lilly and Co., 343 N.W.2d 164, 173 - 74 (Mich. 1984) (a “new DES - unique contribution of DES to the market in the relevant period of time”); see Abel v. portion of a plaintiff’s damages which is represented by that defendant’s circumstances so as to allow recovery against a negligent defendant of that relaxation of the traditional identification requirement in appropriate Abbott Labs, 437 N.E.2d 171, 190 (Mass. 1982) (court might recognize “some p. 31 31

presented by this case. I n addition to finding that the St ate had proven all of proof, applying market share liability wa s justified in the circumstances plaintiffs who would be left without recourse due to impossible burdens of trial court that, based upon our willingness to construct judicial remedies for unfairly ‘ tilt the scales ’ in favor of one party or another.” We agree with the rigidly apply theories of tort law where doing so would either be impractical or liability law in New Hampshire, the trial court concluded that it would “n ot Based upon the reasoning expressed in our cases developing products

risk and cost in this State.” Id. at 469 (quotation omitted). and that such principle ought “not be undermined or abolished by spreading of elements of our legal system applicable to corporations and individuals alike” reaffirming “[t] he common - law principle that fault and responsibility are “impose what amounts to absolute liabil ity on a manufacturer,” id. at 470, manufactured and sold by the predecessor company. Id. at 468. We refused to assumes strict liability f o r defects in units of the same product line a manuf acturing business and continues the output of its line of products, without fault.” Id. at 469. Under the product line theory, a party that acquires successor liability, reasoning that “liability without negligence is not liability 130 N.H. 466 (1988). In Simoneau, we rejected the product line theory of defendants could not have been at fault. Simoneau v. South Bend Lath e, Inc., We have also declined to expand products liability law whe n the

wrongful death action). policy or logic” advanced to apply strict liability to electric companies in Wood v. Public Serv. Co., 114 N.H. 182, 189 (1974) (no “c ompelling reason of because they possess adequate protection through an action for negligence); indication that the plaintiffs suffered an “unfair burden” from not doing so liability to owner and oper ator of amusement park ride when there was no v. Capitol City Shows, Inc., 124 N.H. 719, 730 (1984) (refusing to extend strict because “there [was] no apparent impossibility of proving negligence”); Siciliano landow ner for damages resulting from soil and groundwater contamination (declining to impose strict liability in action by landowner against adjoining liability under traditional negligence principles”); Bagley, 127 N.H. at 560 owner or user of a building does not face “extraordinary difficulties in proving good, strict liability does not apply to architect and contractor because the N.H. 756, 761 (1997) (unlike a consumer who purchases a mass - produced for selli ng defective prosthetic knee to plaintiff); Bruzga v. PMR Architects, 141 (strict liability did not apply to tort action against non - manufacturer hospital negligence. See, e.g., Royer v. Catholic Med. Ctr., 144 N.H. 330, 335 (1999) which plaintiffs have not faced a practically impossible burden of proving By contrast, w e have declined to expand products liability law in cases in

place a “practically impossible burden” up on injured plaintiffs. Id. designer.” Id. (quotation o mitted). We were persuaded by policy reasons not to almost hopeless state of never being able to succeed against a defective p. 32 32

Exxon. Accor dingly, the jury was instructed: injury, under market share liability the burden of identification shifted to Thus, because the State could not identify the tortfeasor responsible for its State cannot identify the refiner of the MTBE gasoline that caused the harm. molecule of MTBE gasoline from the refinery to New Hampshire so that the distribution system, and that commingling prevents the Stat e from tracing a MTBE gasoline allows it to be commingled at nearly every step of the gasoline established that MTBE gasoline is a fungible product, that the fungibility of establish ed a prima facie case on ea ch of its claims. Further, t he evidence theory.” Thus, the trial court rejected Exxon’s argument that the State ha d not proximate cause of the State’s alleged injury under a traditional causation presented by t he State, “a reasonable jury could conclude that Exxon was the T he trial court denied Exxon’s motion, reasoning that, from testimony

c ausat ion.” any of the alleged contamination in this case under traditional theories of identified any evidence that gasoline containing MTBE from ExxonMobil caused asserted that such proof “was utterly lacking . . . and the State ha s not were a substantial factor in bringing about the State’s alleged injuries.” Exxon cause of the State’s alleged injuries and that ExxonMobil’s conduct or product ExxonMobil that gasoline containing MTBE from ExxonMobil was the but for State’s claims, the State was required to provide evidence specific to directed verdict at the close of the State’s case - in - chief that, “[f]or each of the 379 F. Supp. 2d 348, 375 (S. D.N.Y. 2005). Exxon argued in its motion for a tortfeasor or tortfeasors.. . .” In re Methyl Tertiary Butyl Ether Products Liab., case on every element of the claim except for identification of the actual identification s hifts to the defendants if the plaintiff establishes a prima facie the market share liability theory. “Under market share liability, the burden of merely found that the State could prove “but for” causation as required under jury on market share liability. We disagree. To the contrary, the trial court evidence for the State to prove traditional causation, it erred by instructing the Exxon argues that because the trial court found that there was sufficient

determine the portion of the State’s damages caused by Exxon’s conduct. discretion in allowing the State to use the theory of market share liability to contamination. W e hold that t he trial court did not unsustainably exercise its MTBE gasoline producers caused New Hampshire’s groundwater presented, the State faced an impossible burden of proving which of several contains sufficient evidence to support the jury’s findings. Given the evidence gasoline containing MTBE.” We have reviewed the record and conclude that it the State “has identified a substantial segment of the relevant market for back to the company that manufactured or supplied that MTBE gasoline”; and State “cannot trace MTBE gasoline found in groundwater and in drinking water the elements of its claims, the jury found: “MTBE gasoline is fungible”; the p. 33 33

[State’s] argument that using statistical methods is appropriate and, as a Following a hearing, the trial court issued a written order “a ccept[ing] the

accepted statistical and scientific principles.” datasets, extrapolating to the State at large,” but “fail. . . to follow basic, well statewide conclus ions about MTBE detections and costs from small ‘sample’ Dr. Graham Fogg, Gary Beckett, and Dr. Ian Hutchison, “attempt to draw investigating and remediating MTBE site s. Exxon argued that these experts, New Hampshire, the past costs of MTBE remediation, and the future costs of three of the State’s experts estimating the probability of MT BE occurrence in water supplies and sites. Before trial, Exxon moved to exclude the opinions of aggregate statistical evidence rather than individualized evidence of particular Exxon argues that the State should not have been permitted to rely upon

VI I I. Aggregate Statistical Evidence

an appropriate measure of the State’s damages.” the risk within the State,” and that “[a]ny figure within this spectrum would be supplier and refiner market sh are and that both reflected Exxon’s “creation of refine. The trial court explained that the jury was entitled to estimates of role[ ],” a jury could find Exxon liable for MTBE gasoline it supplied but did not have had knowl edge of the characteristics of MTBE gasoline from [its] refining supply market. As the trial court reasoned, because Exxon “had or should entitled to determine that Exxon could be held liable for its percentage of the Finally, we find no error with the trial court’s ruling that the jury was

or supplier of the MTBE gasoline that caus ed the harm. with another’s; and (3) the State cannot identify the manufacturer manufacturer’s or supplier’s MTBE gasoline is interchangeable accounted for; and (2) MTBE gasoline is fungible, meaning that one in this case so that a substantial share of the r elevant market is it has identified enough MTBE gasoline manufacturers or suppliers suffered harm. In addition, the State must prove the following: (1) strict liability based on a failure to warn and that the State the elements for negligence, or strict liability defect in des ign, or Market share liability requires that the State. . . prove all

the State’s harm occurred. share of the market for the defective product during the time that responsible for the State’s harm in proportion to ExxonMobil’s burden of proof. Under market share liability, ExxonMobil is injury, then the State may use market share liability to satisfy it s manufacturer or supplier supplied the product that caused the suppliers, and the State has no reasonable means to prove which manufactured and sold by any number of manufacturers and If the State has been harmed by a product that was p. 34 34

public policy interests, the Court finds that a llowing the [State] to continued pursuit of the litigation fruitless. Because of these have to bear would consume much of any recovery, making Here,. . . the necessary additional litigation costs the [State] would undoubtedly and unfairly “tilts the scales” in [Exxon’s] favor.. . . Moreover, requiring the [State] to test each individual well

being. The Court simply cannot support such a process. undertaken here, it would have to continue beyond all lives in precisely determine its damages. However, if su ch a process were resources to test each individual well over a long period of time and injured masses. In a perfect setting, the [State] would have the efficient, effective and responsive resolution of claims of these modern adju dicatory tools must be adopted to allow the fair, processes, creating the potential for mass injury. As a result, consumption by millions using new chemical compounds and American manufacturers now mass produce goods for

The court stated: allowing the [State] to establish injury and damages using statistical m ethods.” Finally, the trial court reasoned that “general policy considerations support [State] to prove injury to a single resource.” (Quotation and brackets omitted.) “with more than just a vehicle to demonstrate standing: the statute allows the waters lying within its boundaries,” and that t his statute provides the State the authority and responsibility to provide careful stewardship over all the “[t]he state as trustee of the waters f or the public benefit declares that it has prove its claim upon state - wide proof.” The court stated that u nder RSA 481:1, private waters within the [s]tate is an indivisible injury, allowing for the State to Hampshire’s “‘ declaration of policy ’ confirms that an injury to both public and through the use of statistics.” Second, the court reasoned that New the use of an aggregate model, but instead seeks to prove its own injury State “does not seek to establish injury among several class plaintiffs through plaintiffs.” The court found t hose cases distinguishable because, here, the action cases, “which disallow the use of aggregate damages across a class of First, the court note d that the majority of the cases cited by Exxon are class - The trial court set forth several reasons in support of its conclusion.

of statistical evidence and extrapolation, i.e. the ‘state - wide approach.’” in - fact and damages” and that it would accept proof of injury “through the use court concluded that the State ’s experts’ opinions “are relevant to prove injury determine both the existence and extent of the [State’s] injury.” Thus, the trial such evidence; likewise, it will assist the trier of fact to understand and the existe nce of the [State’s] injury more probable than it would be without reasoned that “t he use of statistical methods, assuming their reliability, makes result, the state - wide proof model is acceptable and relevant.” The court p. 35 3 5

infeasible.” The court reasoned: The trial court found this method to be “technically and scientifi cally

on a well - by - well approach. liable for the State’s harm, the State should be required to proceed explain [s] that because all entities in a product chain would be can spread the liability throughout t he product chain. [Exxon] eventually the refiner. In this way, either the State or the retailers the gasoline back through the product chain to the wholesaler and stations and junkyards. From here, these entities can then trace usually be businesses associated with gasoline, l ike retail gas location that leached gasoline into the ground. These locations will then trace the source of contamination to a particular physical the State would identify a contaminated drinking - water well and

well - by - well approach. As the court explained, under Exxon’s ap proach, otherwise, Exxon continue d to assert that it is feasible to try this case on a appeal from ruling). In its order, the trial court noted that, despite its rulings of New Hampshire Supreme Court Rule 8(1). See Sup. Ct. R. 8 (interlocutory court denied the request, finding that Exxon failed to satisfy the requirements acceptable, Exxon sought an interlocutory transfer to this court. The trial Following the tria l court’s ruling tha t the statewide approach was

reliable and denied Exxon’s motion. experts, the trial court concluded that their opinions and methodologies were a thorough analysis of each of the statistical methods employed by the State’s the methodologies incorrectly to the facts and data provided. After conducting methodologies and, even whe n they used proper methodologies, they applied ex perts on grounds of reliability, arguing that the State’s experts used improper Exxon su bsequently attempted to exclude the opinions of the same three

(Q uotations, citation s, brackets, and ellipsi s omitted.)

injury - in - fact. Hampshire law forbids the use of a statistical approach to prove class action. As a result, the Court rejects the notion that New simply not persuaded by [Exxon’s] attempt to frame this case as a accepted method for a plaintiff to prove his case. This Court is competent, but also such evidence has become a generally single - car collisions. Not only have they shown themselves statistical evidence in a variety of contexts, from mass toxic torts to litigants have shown themselves competent to sift through The fact is that for decades, judges, lawyers, jurors, and

damages in this case. use statistical methods of proof is relevant to prove injury and p. 36 36

unsustainable exercise of discretion standard and reverse only if the rulings We revie w challenges to a trial court’s evidentiary rulings under our

“mischaracterize [d] both the trial record and the relevant standards of review.” basis.” (Quotation omitted.) The State asserts that Exxon has of Exxon’s tortious conduct, therefore, required adjudication on a statewide substantial portion of the State’s population” and that “[t]he statewide nature argues that the “immense scope of Exxon’s pollution” has “directly affected a from these precedents” in allowing statewide aggregate evidence. The State amenable to proof on a mass basis.” According to Exxon, the trial court “broke overwhelmingly on individualized questions of law and fact, and thus are not to address the issue has recognized that MTBE tort cases depend to prove its case on a statewide basis. Exxon asserts that “[e]very other court On appeal, Exxon argues that the trial court erred in allowing the State

fall within the purview” of a motion to set aside. conclusively against the weight of the evidence,” the argument “d id not properly regarding these rulings and it does not contend that the jury’s verdict was were rulings of law and that because “Exxon does not raise any new facts The trial court denied the motion, stating that its prior rulings on this issue prove individualized causation with respec t to particular private well impacts.” injury” and that this “resulted in the State being able to avoid its burden to potential hypothetical impacts rather than particularized evidence of an actual and ‘future injury’ ca se using statistical extrapolations from experts about verdict that the statewide approach allowed the State “to prove its private well Following the jury verdict, Exxon argued in its motion to set aside the

practically impossible to trace MTBE to a specific wholesaler. times, cannot be traced to a particular retail er, making it a particular refiner. Additionally, a contaminated well, many impossible because MTBE lacks a chemical signature, linking it to contaminated well all the way back to the refiner is virtually Defendants themselves admit that tracin g MTBE found in a

impossible. this selected class of defendants, product tracing is virtually the initial risk that led to widespread contamination. Based on has chosen to pursue the named Defendants because they created uncontainable way it has if it did not contain MTBE. The State contaminating the State’s water resources in the vast, seemingly imported into New Hampshire would not have been capable of into New Hampshire to spill, leak, and evaporate. Gasoline included in the RFG program and would never have been imported marketing, and reformulating MTBE, it would never have been manufacturers and refiners. Without decision makers selecting, The State’s case attempts to impose liability on p. 37 37

long permitted parties to use statistical data to establish causal relationships”). M arketing and S ales Practices, 712 F.3d 21, 42 (1st Cir. 2013) (“courts have growth” based upon scientific and statistical e vidence); In re Neurontin relationship between the town’s growth restrictions and a projection of “normal 45, 50 - 51 (1986) (validity of a town’s growth control ordinance rests upon a rebut the presumption of l egitimacy); Rancourt v. Town of Barnstead, 129 N.H. 141 N.H. 508, 510 - 11 (1996) (statistical probability evidence may be used to proper was not an unsustainable exercise of discretion. See Bodwell v. Brooks, that the use of statistical evidence and extrapolation to prove injury - in - fact was B ased upon the record, we conclude that the trial court’s determination

contend on appeal that th e expert evidence was irrelevant or unreliable. expressly accounted for the fact that “every site is different.” Exxon does not of drinking wells currently contaminated by MTBE. The State’s experts data on MTBE contamination in the state to calculate statistically the number are expected to become contaminated in the future. Dr. Fogg used substantial people are contam inated with MTBE at levels over 13 ppb, and that many more through expert testimony that 5,590 drinking water wells serving 16,276 contaminated the subsurface. The State also introduced scientific evidence 1,584 specific sites where MTBE has been known to leak and has At trial, the State offered proof based upon expert testimony regarding

experts,” and, the State seeks recovery “on the basis o f ‘high - risk’ areas only.” the State “provided the Court with adequate statistical evidence through their that the private wells were located in proximity to possible release sites, here statistics pertaining to MTBE de tection rates for private wells nor establish ed whereas in the New York case, the plaintiffs’ allegations neither contain ed any further distinguishing the New York MTBE case, the trial court noted that, MTBE, the [State’ s] pursuit of a statistical approach would be fruitless.” As that “if the [State] had not tested any wells or had tested wells and found no that information in order to establish further injury.” The trial court agreed where it has discovered the existence of MTBE. It merely seeks to extrapolate their wells, the trial court noted that here, “the [State] has tested many wells categories of class plaintiffs who had actually tested and detected no MTBE in contrast to the New York MTBE case in which the court dismissed full “injury in fact” to be unhelpful, as “the facts of this ca se are very different.” In however, found this and other MTBE cases involving a determination as to overwhelmingly on individualized questions of law and fact.” The trial court, F.R.D. 323 (S.D.N.Y. 2002), as an example of why “MTBE tort cases depend Exxon cites In re Methyl Tertiary Butyl Ether Products Litigation, 209

Matter of McArdle, 162 N.H. at 485. are clearly untenable or unreasonable to the prejudice of a party’s case. In the p. 38 38

requirements of other jurisdictions, the court reason ed that the Colorado the plaintiff must be given fair opportunity to rebut it.” Looking at the its disclosure must provide th e plaintiff with adequate notice of the defense and court determine d that “when a defendant raises a defense under DeBenedetto, with adequate notice of the defense and a fair opportunity to rebut it, the trial defendants are required to plead affirmative defenses to provide the plaintiff liability as akin to an ‘affirmative defense.’” Because in New Hampshire most helpful in the present analysis, is that portion identifying non - litigant The trial court found “the most notable portion of the framework, and the

(Quotations and cit ations omitted.)

consider it for fault apportionment purposes. supported by adequate evidence before a jury or court may 507:7 - e; allegations of a non - litigant tortfeasor’s fault must be fourth, that a defendant may not easily shift fault under RSA defendant carries the burdens of production and persuasion; and something in the nature of an affirmative defense; third, the seeks to deflect fault by apportionment to non - litigants is raising o therwise not before the court; second, that a civil defendant who rise to the action, including those immune from liability or 507:7 - e applies to all parties contributing to the occurrence giving This framework is made up of four principles: first, that RSA nonet heless, supplied a fram ework to guide this court’s analysis. never directly addressed the present DeBenedetto issues, it has, D espite the fact that the New Hampshire Supreme Court has

DeBenedetto party. In its order, t he trial court stated: because the disclosures did not provide sufficient evidence specific to each disclosures, maintaining that Exxon failed to comply with the trial court’s order The State subsequently moved to strike Exxon’s supplemental

for the claims made by the State.” good faith basis for why each party listed within their disclosure s is responsible DeBenedetto. The trial court ordered Exxon to “set forth, with specificity, a result, did not provide either the court or the State with adequate notice under that they did not sufficiently allege fault against the non - litigants and, as a storage tanks. After reviewing these initial disclosures, the trial court found distributors, trucking companies, and persons with leaking underground gasoline suppliers, gasoline importers, foreign refiners, domestic refiners, containing lists of several thousand non - litigants, including the names of Engineers, Inc., 153 N.H. 793 (2006). Before trial, Exxon filed disclosures defense” under RSA 507:7 - e (2010) and DeBenedetto v. CLD Consulting Exxon argues that it was “unfairly prejudiced in its ability to present its

IX. RSA 507:7 - e and DeBenedetto p. 39 39

pure questions of law that the court addressed pretrial an d “Exxon has raised The trial court rejected Exxon’s first three challenges because they raise d

particular injuries.” than evidence about the actions of particular individuals in connection with the State’ s injury”; and (4) requiring it to present “categories of evidence rather constructive knowledge of MTBE’s presence in gasoline before contributing to parties’ fault”; (3) “requiring proof that the non - parties had actual or “preventing ExxonMobil from relying o n RSA 146 - A to establish the non rather than proving only that they contributed to the State’s injury”; (2) ExxonMobil to prove that the non - parties were liable for the State’s claims, trial. Exxon argued that the trial court erred by: (1) “improperly requiring After the jury verdict, Exxon moved to set aside the verdict and for a n ew

should have known of MTBE.” have been present. Alternatively, [Exxon] may demonstrate that a nonparty absent some knowledge that MTBE was generally present in gasoline or could nonparty cannot possibly [have] foreseen the type of harm alleged by the St ate show that a nonparty was aware of the unique n ature of MTBE. . . However, a owed a similar duty to warn.” The trial court explained that Exxon “need not that an entity below [E xxon] in the product chain is s imilarly culpable and/or the nature of MTBE upon which the State’s claims are based in order to show Exxon “must assert that a nonparty knew or reasonably should have known of knowledge.” With respect to p roducts liability, the tr ial court determined that some knowledge of MTBE or its characteristics, or should have had some and breached that duty. This will require demonstrating that a nonparty had Exxon “must assert that a nonparty owed a duty with respect to MTBE gasoline Thereafter, t he trial court determined that w ith respect to negligence,

the claims asserted by the State.” (Quotation omitted.) a burden than to link [its] own allegations of non - litigant fault to at least one of individual claims,” reasoning that Exxon can not assert that it has “any less of to the harm alleged by the State, not correspond each DeBenedetto party to assertion that it need demonstrate only “how a DeBenedetto party contributed (Quotations, citation s, and brackets omitted.) The trial court rejected Exxon’s

State’s claims. sufficient facts to satisfy all the elements of at least one of the nonparty to be at fault. Furthermore, the notice must allege addition to a brief statement of the basis for believing such provide to the State identifying inform ation for the nonparty in proper notice in the DeBenedetto context requires [Exxon] to

Thus, the court concluded that persuasive in molding a standard for ‘adequate notice’ under DeBenedetto.” standard “for evaluating a defendant’s notice of non - litigant fault [is] p. 40 40

attributable to him. several and not joint and he shall be liable only for the damages less than 50 percent at fault, then that party’s liability shall be rules of joint and several liability, except that if any party shall be (b) Enter judgment against each party liable on the basis of the

accordance with the proportionate faul t of each of the parties; and be awarded to each claimant and against each defendant in (a) Instruct the jury to determine . . . the amount of damages to

I. In all actions, the court shall:

507:7 - e, I, provides: shift or apportion fault from themselves to other nonparties in a case. RSA Pursuant to RSA 507:7 - e and DeBenedetto, defendants may ask a jury to

Sanderson, 146 N.H. at 600. Matter of McArdle, 162 N.H. at 485. We review questions of law de novo. are clearly untenable or unreasonable to the prej udice of a party’s case. In the unsustainable exercise of discretion standard and reverse only if the rulings We review challenges to a trial court’s evidentiary rulings under our

non - parties were at fault for MTBE pollution.” DeBenedetto argument is “unavailing because Exxon did not show at t rial that right to allocate fault to third parties.” The State argues that Exxon’s DeBenedetto party to a claim made by the State “eviscerated Exxon’s statutory Exxon asserts that the trial court’ s ruling that Exxon had to link each prove that third parties contributed to at least part of the alleged harm.” “deviate from clear precedent and denied Exxon a meaningful opportunity to On appeal, Exxon argues that the trial court’s DeBenedetto rulings

the weight of the evidence.” a jury verdict rejecting Exxon’s DeBenedetto defense was conclusively against contamination.” Accordingly, the trial court concluded that it “cannot say that were aware their actions caused spills and leaks that caused MTBE gasoline during the relevant time period, and he never stated that nonpartie s nonparties “did not indicate that nonparties were aware of MTBE’s presence in that its primary witness who testified regarding the various categories of that “Exxon presented very little evidence establishi ng nonparty liability” and opposed to categorical evidence.” As to the categories, the trial court found have presented evidence regarding every individual DeBenedetto party, as allowing categories was a convenience, not a requirement, and “Exxon could Regarding the statewide proof claim, the trial court agreed with the State that no new fact or law to convince the Court to readdress these arguments.” p. 41 41

. . . a. Tanks With Holes . . . b. Aboveground Releases . . . c. Tanks With or all of its fault should be allocated to nonparties in the following categories ? form: “Has ExxonMobil proven, by a prepon derance of the evidence, that some The jury answered “No” to each portion of this question on the special verdict

nonparties identified in Defense Exhibit 1047. proving that some or all of its fault should be allocated to the against ExxonMobil, then ExxonMobil sha ll have the burden of is that if you find that the State has proven any of its three claims they are not parties to the lawsuit. What that means in this case persons or entities who contributed to causing an injury, even if In this state, courts and juries may apportion fault to all

those nonparties. The trial court instructed the jury: Nonetheless, the trial court allowed the jury to consider apportioning liability to those sites even knew that MTBE was in the gasoline that they were receiving. environment, and that he did not know if any of the owners or operators of MTBE gasoline behaves differently from other gasolines when released into the know whether anyone who owned or operated any of those sites knew that that Exxon contends are responsible for MTBE contaminat ion, that he did not acknowledged, however, that he did not interview anyone at any of the sites scenarios for the various categories of alleged faulty nonparties. He including providing extensive testimony regarding typical spill and leak Jeffrey A. Klaiber, an environmental consultant, testified for several days, contributing to the occurrence in question). At trial, Exxon’s expert witness, include all tortfeasors who are causally negligent by either causing or requires proof of fault. DeBenedetto, 153 N.H. at 800 (apportionment must As the trial court correctly concluded, apportionment under RSA 507:7 - e

comparative negligence for purposes of apportionment of damages). implicitly concluded that the defendants failed to prove their allegations of brackets omitted); see Wyle v. Lees, 162 N.H. 406, p. 41 413 (2011) (trial court non - litigant just as a plaintiff seeks to impose it on him.” Id. (quotation and essentially becomes another plaintiff who must seek to impose liability on a Id. Furthermore, “a defendant who raises a non - litigant apportionment defense Accordingly, “the defendant carries the burdens of production and persuasion.” affirmative defense.” Goudreault v. Kleeman, 158 N.H. 236, 256 (2009). apportionment to non - litigants is raising something in the nature of an apportionment purposes.” Id. “[A] civil defendant who seeks to deflect fault by supported by adequate evidence before a jury or court may consider it for fault fault under RSA 507:7 - e; allegations of a non - litigant tortfeasor’s fault must be (quotation, ellipsis, and citation omitted). “[A] defendant may not easily shift from liability or ot herwise not before the court.” DeBenedetto, 153 N.H. at 804 contributing to the occurrence giving rise to an action, including those immune not only to ‘parties to an action, including settling parties,’ but to all parties “[F]or apportionment purposes under RSA 507:7 - e, the word ‘party’ refers p. 42 42

Furthermore, the court has already determined that the methods extent of the harm caused, which New Hampshire allows. The State’s claim for future damages merely seeks to mea sure the occurred. The injury occurred when MTBE entered State waters. Importantly, the injury causing the future harm has already unknown well impa cts are fit for. . . judicial determination. The court finds that the State’s damages for future and

on awarding future damages. [Exxon’s] argument, New Hampshire has no absolute prohibition than not that the future damages will occur. Thus, contrary to there is evi dence from which it can be found to be more probable In order to recover for future damages, a party need only show that seek recovery for future harm that will arise from a current injury. It is well settled in New Hampshire that an injured party may

stating: argument in a summary judgment motion. T he trial court denied the motion, and site impacts” are not ripe for review. Before trial, Exxon raised this Exxon argues that the State’s “future, speculative, and unknown well

X I. Future Well Impacts

Country Env tl. Servs., 150 N.H. at 619. not preserved for our review, we decline to address it substantively. See N. court. See Dukette, 166 N.H. at 255. Accordingly, because the argument is failed to demonstrate that it specifically raised this argument before the trial We have reviewed the record and agree with the State that Exxon has

verdict. failed to argue it in either its motion for JNOV or motion to set aside the judgment on parens patriae issues or in its motion for a directed verdict, and before the trial court, including failing to raise it in its motion for summary State argues that Exxon waived this argument because Exxon failed to raise it and that a rational jury could have found the State’s proof insufficient. The population is a question of fact for the jury, not a question of law for the judge, Exxon asserts that whether there is an injury to a “substantial segment” of the parens patriae standing, rather than submitting this question to the jury. Exxon argues that the trial court erroneously decided that the State had

X. Parens Patriae

rulings. Accordingly, w e find no error. fault to third parties or that it suffered any prejudice from the trial court’s Exxon ’s argument that it was denied “a meaningful opportunity” to apportion Releases . . . d. Junkyards.” Based upon the record, we are not persuaded by p. 43 43

will not reconsider its prior ruling. As such, the record is not so insufficient.” Because Exxon raises no new facts or law, the Court an approximation does not make it speculative or legally order: “The mere fact that the Stat e’s damages figure is based on Court considered and rejected this argument in its directed verdict and not supported by evidence; it is not sufficiently definite. The awarded is speculative because it is based on expert estimations Exxon explains that even if it is liable, the damage s figure the jury

are unsupported by the evidence.” Denying the motion, the trial court stated: aspects of the jury’s damages award for future well testing and treatment . . . Following the jury verdict Exxon moved for JNOV, arguing that “several

(C itation omitted.)

juror to conclude the State has suffered a cognizable injury. based on estimated contamination is sufficient for a reasonable c ase - in - chief regarding the estimated costs of remediation efforts insufficient. Further, the evidence presented during the State’s based on an approximation does not make it speculative or legally New Hampshire. The mere fact that the State’s damages figure is of spill sites, and the number and proximity of drinking wells in suffering contamination based on statistical sampling, the location witnesses estimated the number of wells that are currently Graham Fogg, Steve Guercia, and Brandon Kernen. These in its case - in - chief through Gary Beckett, Dr. Ian Hutchison, Dr. to show it is injured. Nonetheless, the State presented testimony need to have identified every contaminated well in New Hampshire this Court’s prior orders on this issue explain, the State does not The State need only show an approximation of its harm. As

was insufficient. The trial court rejected the motion, stating: it has “sustained a cognizable injury” and that the State’s damages evidence figure with sufficient certainty. Exxon argued that the State failed to prove that case - in - chief arguing, in part, that the State fail ed to present its damages Exxon moved for a directed verdict following the State’s conclusion of its

(Quotation, c itations, and brackets omitted.)

ripeness test. damages claims are ripe for review under the first prong of the . . . are relevant and reliable. Therefore, the State’s futur e undertaken by the State’s experts for determining the future harm p. 44 44

developed record.” Appeal of City of Conco rd, 1 61 N.H. 3 p. 44 44, 354 (2011). based on actual facts and are capable of being adjudicated on an adequately “[R]ipeness relates to the degree to which the defined issues in a case are

evidence of damage that already has occurred.” future - treatment claims are ripe because the State “presen ted concrete without raising ripeness concerns.” The State also asserts that its testing and damages for loss of income, both of which are regularly awarded in tort actions type of harm is certainly no less recover able than future medical expenses or The State argues that its harm “exists today, and recompense for this

gone before.” this suit and took the [court] into territory where no common law court has According to Exxon, the tria l court’s ruling “dramatically increased the scope of private - well impacts “are even more uncertain, remote, and contingent.” particular private wells,” and that the State’s claims for treatment of future the State “did not present proof of actual or imminent contamination to because these claims are unripe and should be dismissed. Exxon asse r ts t hat anticipated generalized costs to characterize . . . and clean up release sites,” contamination is found in the wells in the future, and another $218 million for wells for possible MTBE contamination, $150 mill ion to treat whatever to claim more than $300 million in damages for the costs of testing private On appeal, Exxon argues that the trial court erred “in allowing the State

(Q uotation and citations omitted.)

Court declines to reconsider its prior rulings. Because Exxon’s motion raises no new issues of law or fact, the more probable than otherwise that such damage would occur. proper where there wa s evidence from which the jury could find it injured is a question for the jury, but prospective damages are harm, which the Court denied. Whether the State has been Exxon sought a jury instruction on imminent and immediate occurred; MTBE has already been brought into New Hampshire. This Court has ruled that the State’s injury already

stat ing: are speculative and were not ripe.” The trial court rejected Exxon’s argument, will injure private wells in the future,” and, therefore, “these projected injuries arguing that “[j]ust because MTBE is in groundwater now does not mean that it In addition, Exxon moved to set aside the verdict and for a new trial,

(C itation omitted.)

unsustainable. clearly in Exxon’s favor tha t the Court can find the jury’s verdict is p. 45 45

taxation of costs, including prejudgment interest pursuant to RSA 524:1 - b interest on future costs. Following the jury verdict, the State moved for Exxon argues that the trial court should not have awarded prejudgment

X I I. Prejudgment Interest

be waived. See State v. Roy, 167 N.H. 276, 286 (2015). ripeness test, and we therefore consid er any argument regarding that prong to Exxon does not present any argument on the hardship prong of the

damages. award it full, fair, and adequate compensation for those future and probable consequence of ExxonMobil’s legal fault and, if so, that its damages will continue into the future as a di rect, natural y ou may. . .. consider whether it is more probable than otherwise In determining the amount of damages to allow the State,

. . . .

from ExxonMobil’s legal fault. The State is entitled to be fully compensated for the harm resultin g

groundwater quality.” As the jury was instructed: might not yet have been detected, those leaks “will continue to pose a hazard to experts testified that, although leaks from some underground storage tanks seeps through subsurface zones toward wells, lakes, and wetlands. Th e State’s MTBE has a “residence time” of up to 50 years, during which time it gradually contamination is not limited to drinking wells. According to the State’s experts, of trial. The record also contains evidence that the damage from MTBE tested, were likely already contaminated with MTBE above 13 ppb at the time record also establishes that more than 5,000 wells, which have not yet been contaminated at levels over the maximum contaminant level of 13 ppb. The wells in the state had tested positive for MTBE, and, of those, 358 wells were wells). The record establishes that, as of the time of trial, over 1,000 drinking they had not tested their private wells or tests did not detect MTBE in their plaintiffs could not show a present threat of imminent harm because either (“MTBE”) Prod., 175 F. Supp. 2d 593, 607 - 11 (S.D.N.Y. 2001) (individual harm from MTBE has already occurred. Cf. In re Methyl Tertiary Butyl Ether claims for future testing and treatmen t ar e fit for judicial determination as the We find no error in the trial court’s rulings on this issue. The State’s

Ass oc., 142 N.H. 874, 878 (1998). parties if the court declines to consider the issue.” Appeal of State Employees’ the fitness of the issue for judicial determination and the hardship to the “persuasive the two - pronged analysis used by other jurisdictions that evaluates Although we have not adopted a formal test for ripeness, we have found p. 46 46

past, ongoing treatment and testing does not, as Exxon claims, represent the damages is spent,” and that “because the conta mination occurred in the objective of accelerating settlement, regardless of when the money underlying that “[a]warding prejudgment interest to all of the State’s damages satisfies the use of money damages.” (Quotat ion and emphasis omitted.) The State asserts purposes: to accelerate settlement and provide compensation for the loss of square its argument with [the statute’s] text,” and that “RSA 524:1 - b has dual not have been awarded.” The State argues that Exxon “makes no effort to costs fails to serve the compensatory purpose of RSA 524:1 - b and thus should remediation.” According to Exxon, “[p]rejudgment interest on those future in New Hampshire’s private wells and future costs for site investigation and investigating, testing, characterizing, and treating alle ged MTBE contamination $195,243,134 of those damages . . . were for the State’s claims for prejudgment interest on the total judgment amount, or $236,372,664, when On app eal, Exxon argues that the trial court erred “by awarding

remediate would be lesser now. when litigation was pending, arguably, the cost to test and Further, had these monies been available during the last decade use of these monies prior to the jury’s verdict in this case. and remediation does not mean that i t did not suffer the loss of characterized part of its damages figure as that for future testing that the jury accepted by its verdict. The mere fact that the State imported into the State, and this is the presentation of evidence its waters had already been done, MTBE had already been The State presented substantial evidence that the damage to

court reasoned: presentation was not intended to and did not define the State’s injury.” The purposes of breaking the figure into parts for evidentiary presentation, . . . this trial, “the State categorized its damages as past, current, and future for The trial court rejected Exxon’s arguments, noting that, although during

between past and future costs or harm.” assuming future injuries were at issue, the statute “does not distinguish premise; there are no future injuries here.” The State also argued that even MTBE entered New Hampshire’s waters, Exxon’s “motion fails in its basic State objected, arguing that because the injury has already occu rred when treatment programs and with MTBE impacts that have not yet occurred.” The for future costs associated with establishing investigation, testing and plaintiff was deprived of its use, but “[t]hat rationale is inapposite to an award to damages for past harms to take into account the time during which the award.” Exxon asserted that because money has time value, interest is added would not se rve the statute’s purpose and “would amount to an illegal punitive future costs portion of the State’s damage award, argu ing that such an award (2007). Exxon moved to preclude the addition of prejudgment interest on the p. 47 47

upon approximately $195 million of the damages award. Before trial, Exxon The State cross - appeals from the trial court’s order imposing a trust

XIII. State’s Cross - Appeal

State’s damages. the trial court did not err in awarding prejudgment interest as to all o f the statute that the legislature did not see fit to include). Accordingly, we hold that See Starr v. Governor, 151 N.H. 608, 610 (2004) (we will not add words to a future damages for purposes of calculating and awarding prejudgment interest. the statute provides no support for Exxon’s argument differentiating past and prejudgment interest “to the amount of damages.” Thus, the plain language of between past and future damages. Rather, the statute mandates the award of for “future” costs, the plain language of the statute does not distinguish assuming, without deciding, that the damages award included some amount legal rate is to be added to the award.” Id. at 89 (quotation omitted). Even court awarded money to the party entitled to be compensated, interest at the and simplify the existing law and to make plain that in all cases where the trial The purpose of the legisla ture in enacting RSA 524:1 - b was “to clarify

statutory scheme. Id. in enacting them, and in light of the policy sought to be advanced by the entire words used. Id. O ur goal is to apply statutes in light of the legislature’s intent statute, and, where possible, ascribe the plain and ordinary meanings to the the statute considered as a whole. Id. We first examine the language of the We are the final arbiters of the legislature’s intent as expressed in the words of novo. In the Matter o f Liquidation of Home Ins. Co., 166 N.H. 84, 88 (2014). The interpretation of a statute is a question of law, which we review de

RSA 524:1 - b; see RSA 524:1 - a (2007).

the petition to the date of judgment. damages interest thereon from the date of the writ or the filing of damages are recognized, there shall be added. . . t o the amount of business or reputation, for any other type of loss for which death, for consequential damages, for damage to property, damages to any party, whether for personal injuries, for wrongful in which a verdict is rendered or a finding is made for pecuniary

other than an action on a debt, 111 N.H. 259, 262 (1971). Pursuant to RSA 524:1 - b, in all civil proceedings, interest is to be awarded as part of all judgments.” State v. Peter Salvucci Inc., “Ordinarily, upon a verdict for damages and upon motion of a party,

and citation omitted.) ‘future harms’ or damages the State has yet to incur.” (Quotation, brackets, p. 48 48

trust.” the court “to c onsider each party’s proposal for the administrative details of a whether the trust would be court - supervised, and a hearing date was set for procedure for how the trust should function.” The trial court deferred deciding as a beneficiary at the termination of the trust, it may file a proposed remediation, but noted that “to the extent Exxon has a legal interest in a trust order compelling the State to disclose how it would proceed with testing and the maximum contaminant level. The court rejected Exxon’s request for an wells, and treat ing drinking water wells contaminated with MTBE at or above of damages designated for 228 high - risk sites, sampl ing private drinking water State to reimburse itself. However, t he court imposed a trust up on the amount reasoning that “tho se monies must be available upon final judgment” for the impose a trust up on the amount of damages designated for past cleanup costs, test and treat New Hampshire’s waters in the future.” The court declined to awarded the State,” and the State “must ensure it has adequate resources to water exists independent of Exxon’s interest in the damages figure th e jury patriae /trustee capacity,” the “State’s obligation to remediate contaminated reasoned that “because the State brought this case in its parens necessary to protect the res of the jury damage award.” The trial court T he trial court granted Exxon’s motion in part, agreeing that “a trust is

misplaced. liability case,” and that Exxon’s reliance upon the Maryland cases was fund for monies received by the State pursuant to a jury award in a products statute, or other authority that would allow [the trial court] to establish a trust liable.” In addition, the State argued that Exxon “has not cited a single case, spent as a prerequisite to obtaining the damages for which Exxon was found court - supervised trust requiring the State to establish how the money will be State to prove how it will spend damages, there is no basis for imposing a already determined that “the underlying causes of action do not require the objected, arguing, among other contentions, that, because the trial court had medical monitoring cases involving alleged MTBE exposures. The State Maryland case s, th e court had required court - supervised trust funds in in this litigation away from MTBE remediation,” and that, in two recent indicating that the New Hampshire Legislature intends to divert funds awarded need for a court - supervised trust is proven by the recent press coverage Following the verdict, Exxon renewed its motion, asserting that “[t]he

after trial. actually incurs.” The State objected, and t he trial court deferred ruling until to those future testing, monitoring, treatment, and remediation costs the State and that a “‘ pay - as - you - go ’ fund. . . would effectively limit the State’s recovery was necessary “given the speculative nature of the State’s future damages,” the State has received to date.” Exxon argued that the need for a trust fund recovers in this litigation” and for “an accounting for all settlement proceeds moved “to establish a court supervised trust fund for any monies the State p. 49 49

“unless and until Congress shall authorize a different type of award”). lump - sum money judgments” in case brought under F ederal Tort Claims Act simple award of money damages”; thus, “court should not make other than of law had no power at common law to enter judgments in terms other than a requirement); Frankel v. Heym, 466 F.2d 1226, 1228 - 29 (3d Cir. 1972) (“courts over damages in the absence of any applicable statutory or precedential to deviate from a conventional lump - sum award and create a reversionary trust Vanhoy v. U nited S tates, 514 F.3d 447, 454 - 55 (5th Cir. 2008) (court refused pay the judgment in one lump sum. See Reilly, 863 F.2d at 170; see also or an agreement between the parties, w hen a tortfeasor loses at trial it must law cause of action is lump - sum damages). Thus, in the absence of a statute products liability for failure to warn, because the remedy for a traditional tort for Exxon’s liability on claims of public nuisance, negligence, trespass, and (S.D.N.Y. 2014) (declining to impos e a reversionary trust on damages awarded also In re Methyl Tertiary Butyl Ether (“MTBE”), 56 F. Supp. 3d 272, 273, 275 damages for personal injuries is limited to making lump - sum judgments”); see (1st Cir. 19 8 8) (under the common law rule, “a court’s authority to award of action is lump - sum damages. S ee Reilly v. U nited States, 863 F.2d 1 p. 49 49, 169 apply to the re medy in this case. T he common law remedy for a tort law cause Party of N.H. v. Sec’y of State, 158 N.H. 194, 196 (2008), this principle does not a particular case rests in the sound discretion of the trial court,” Libertarian Although we recognize that “[t]he propriety of affording equitable relief in

case. (Quotation omitted.) which include the power to establish a trust over the damages awarded in this Exxon argues that trial c ourts have “broad and flexible equitable powers,” statute provides for the imposition of a trust over the State’s damages award. was erroneous for several reasons, including that no common law precedent or On appeal, the State argues that the trial court’s imposition of a trust

determination to impose the trust.” standing” and that “Exxon’s standing was irrelevant to the Court’s stating that “the Court specifically left open the question of whether Exxon has The tri al court also rejected the State’s argument that Exxon lacked standing, to comply with RSA 6:11, III (Supp. 2014), and violate d separation of powers. things, the court conflated parens patriae and the public trust doctrine, failed details.” The trial court rejected the State’s arguments that, among other Supreme Court order to require a ruling on imposition of a trust but not the the existence of a trust is permissible. As such, this Court interprets the details of a trust now, if the Supreme Court is being asked to decide whether at the outset that “it would be inefficient for the Court to decide all the relevant reconsideration. The trial court thereafter denied the motion. The court noted allow the trial court to issue a final decision on the State’s motion for appeal. We subsequently issued an order staying the appellate pr oceedings to the trial court’s order, Exxon filed this appeal, and the State filed its cross - Before the scheduled hearing date, the State moved for reconsideration of p. 50 50

assigned under RSA 490:3, concurred. HICKS, J., and VAUGHAN, J., retired superior court justice, specially

matter of law. accordingly, reverse the trial court’s imposition of a trust as erroneous as a we decline to deviate from the conventional lump - sum damages award and, awarded for Exxon’s to rts. In the absence of statutory or precedential support, patriae standing au thoriz e s the imposition of a trust over the money damages persuaded that t he fact that the State was allowed to proceed under p arens state ownership of such resources.” Id. at 432. Accordingly, we are not natural resources than the public trust doctrine because it does not require may provide a state with standing to bring suit to protect a broader range of (quotations omitted). “Parens patriae does not provide a cause of action, but the state to protect certain quasi - soverei gn interests.” Id. at 431 - 32 its own cause of action, parens patriae is a concept of standing, which allows remedy environmental harm.” Id. at 431. “While the public trust doctrine is stems, and the parens patriae doctrine are both available to states seeking to Hess, “[t]he public trust doctrine, from which the State’s authority as trustee simply a standing doctrine. See Hess, 161 N.H. at 431 - 32. As we explained in brought this action in its parens patriae capacity. P arens patriae, however, is The trial court reasoned that a trust was required because the State