End in sight for marathon pollution trial in NH

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Associated Press

Posted on April 7, 2013 at 10:00 AM

Updated Monday, Apr 8 at 5:32 AM

CONCORD, N.H. (AP) — Jurors in the longest state trial in New Hampshire's history will return to the courtroom this week after a nearly two-week hiatus to hear closing arguments in the state's groundwater contamination case against Exxon Mobil Corp.

Lawyers for the state want jurors to hold Exxon Mobil liable to the tune of $240 million to monitor and clean up wells and public water systems contaminated by the gasoline additive MTBE, or methyl tertiary butyl ether.

Lawyers for Exxon Mobil counter that MTBE was used to comply with federal Clean Air Act requirements to reduce smog. They also blame any lingering contamination on third parties not named in the state's decade-old lawsuit.

Each side will get three hours to make its case Monday.

If the court keeps to the schedule outlined last week, the jury won't begin its deliberations until Tuesday. That's when Superior Court Judge Peter Fauver plans to instruct the 15 jurors on the law and randomly select the three who will become alternate jurors before sending the panel of 12 behind closed doors.

Lawyers who were in court last week hammering out final details made clear that the jury's verdict won't be the final word in the case. Both sides indicated they were laying the groundwork for an appeal.

The trial began Jan. 14 and testimony ended March 27, making it the longest in state history. Court Clerk Bill McGraw said the Claremont school funding challenge of the 1990s — the trial's only rival in terms of duration and complexity — "pales by comparison."

The jurors were chosen from a pool of 500 people who were sent 22-page jury questionnaires last October. The lawyers eliminated those whose principal source of drinking water is a well. McGraw said jury selection was biggest logistical challenge.

"That was the cow the python had to swallow," he said of the number of prospective jurors brought in and the coordination needed to question them.

The jury will have more than 450 exhibits to view in the deliberations room while it mulls the testimony of scores of witnesses — some of them on videotape.

The jury will be asked to determine whether MTBE is a defective product and whether Exxon Mobil failed to warn its distributors and vendors about the characteristics and care needed in handling gasoline containing it.

MTBE, experts on both sides agreed, travels farther and faster in groundwater and contaminates larger volumes of water than gasoline without the additive.

If jurors find Exxon Mobil is liable for damages, they must then determine what was the oil giant's market share of all gasoline sold in New Hampshire between 1988 and 2005. The state contends it was 30 percent; Exxon Mobil says it's closer to 6 percent.

The state banned MTBE in 2007.

Lawyers for Irving, Texas-based Exxon Mobil claim state environmental officials knew or should have known about the contaminating qualities of MTBE. The judge refused to allow them to use a picture of two ostriches with their heads in the sand as a graphic during closing arguments.

Exxon Mobil is the sole remaining defendant of the 26 the state sued in 2003. Citgo was a co-defendant when the trial began, but it began settlement negotiations with the state on day two and withdrew from the trial. Citgo ultimately settled for $16 million — bringing the total the state has collected in MTBE settlement money to $136 million.

McGraw said last week the trial went more smoothly than anticipated and wrapped up earlier than expected.

"I'm sure the jurors are happy not to be here through July," he said.

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