By LYNNE TUOHY
CONCORD, N.H. (AP) — Day one of what is expected to be a marathon pollution trial over the gasoline additive MTBE ended Monday with lawyers for the state of New Hampshire and two big oil companies heatedly accusing each other of misleading jurors.
The judge denied demands for a mistrial made by Citgo’s lawyer, Nathan Eimer, but may give jurors a special instruction when the trial resumes Tuesday with more opening statements from the lawyers.
The state is seeking more than $700 million from Citgo and ExxonMobil to cover the cost of monitoring and treating MTBE-contaminated wells. Lawyers for the state argue that the MTBE gasoline is a defective product and that oil companies failed to warn the state of its potential for widespread groundwater contamination.
After jurors were dismissed for the day, Eimer accused the state’s lawyer, Jessica Grant, of using what he described as a fabricated document in arguing that Citgo knew the groundwater contamination potential of MTBE. He also said that in Grant’s opening statement, she disparaged an expert witness who’s not even on the witness list.
Grant said it was “nonsense” to think the state had done anything nefarious and countered that the opening statement by ExxonMobil attorney James Quinn was rife with falsehoods.
Merrimack Superior Court Judge Peter Fauver stressed to the lawyers that they were at the start of what is expected to be a four-month trial. He advised them to come up with something “that’s not too inflammatory or accusative” when preparing their written suggestions of what he should tell jurors.
Lawyers for ExxonMobil and Citgo were midway through their opening remarks when court ended.
Grant told jurors the state will base its case largely on the oil companies’ own documents detailing how MTBE contamination is more widespread and costly to clean up than gasoline without MTBE.
ExxonMobil’s Quinn said in his opening remarks that MTBE came into use in the 1970s, when the federal government ordered oil companies to remove the lead from gasoline to cut down on smog.
“MTBE acted to dramatically reduce the problem of air pollution,” Quinn said, noting that by some estimates it saved 2 million lives by replacing toxic pollutants. “MTBE makes gas less dangerous.”
Grant told jurors the state’s experts estimate more than 40,000 wells in New Hampshire are probably contaminated by MTBE. She said MTBE is highly soluble and resistant to biodegradation. Ten gallons of gasoline treated with MTBE could contaminate 62 million gallons of water — the amount estimated to make up Echo Lake in Conway, Grant said.
“MTBE is a toxic chemical that does not belong in the state’s drinking water,” Grant said.
Quinn described Grant’s account as “courtroom fiction — not what was happening out there in the real world.”
He said New Hampshire environmental workers were researching and documenting the effects of MTBE gas spills as early as the 1980s.
“The notion there was some industry-wide cover-up is preposterous,” Quinn said.
The trial is being held in U.S. District Court in Concord to avoid tying up a courtroom in Merrimack Superior Court for months.
New Hampshire banned the use of MTBE — methyl tertiary butyl ether — in 2007.
The lawsuit, filed in 2003, is the only one brought by a state to reach trial on the issue of MTBE groundwater contamination. Elsewhere in the country, most other MTBE cases brought by municipalities, water districts or individual well owners have all been settled or dismissed, except one.