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Ball v. Bayard Pump & Tank Co., Inc.

Supreme Court of Pennsylvania

May 28, 2013

SUSAN B. FRALICK BALL, LARRY G. COMISAK, KATHRYN S. COMISAK, RICHARD COWHIG, CAREN COWHIG, FLORENCE DAHM, ON BEHALF OF HERSELF AND THE ESTATE OF EDWARD DAHM, CHRISTINE FISHER, WARREN FISHER, BARBARA A. FRANKL, DAVID GLASS, ELAINE GLASS, JARED GLASS, ALMA R. JACOBS, ON BEHALF OF HERSELF AND THE ESTATE OF J. ALEXANDER JACOBS, EUGENE KATZ, LENORE KATZ, SUN E. KIM, JOAN KUCH, ON BEHALF OF HERSELF AND THE ESTATE OF LEONARD KUCH, JOHN McCARRY, MARYBETH McCARRY, JONATHAN McCARRY, MATTHEW McCARRY, PATRICK McCARRY, JAMES J. MOORE, III, PATRICIA G. MOORE, LOUIS NICOLAI, BRUCE NICHOLAS, BEATRICE NICHOLS, RICHARD K. OBERHOLTZER, WENDY OBERHOLTZER, MEGAN OBERHOLTZER, TAYLOR OBERHOLTZER, RICHARD H. SHEPHERD, JR., WENDIE STEFFENS, MARK STEFFENS, PAYTON THURMAN, JOAN THURMAN, D. JEAN TISDALL, SUSAN WALSH, KURT WEIDENHAMMER, DEBBIE WEIDENHAMMER, KAREN WEIDENHAMMER, MARYANN WRUBEL, METRO J. WRUBEL AND TODD WRUBEL
v.
BAYARD PUMP & TANK CO., INC., GULF OIL LIMITED PARTNERSHIP, E.O. HABHEGGER CO., INC., TITEFLEX CORPORATION, VEEDER-ROOT CO., WAGNER AND T.F.W., INC.
v.
MARLEY PUMP COMPANY AND CONTAINMENT TECHNOLOGIES CORPORATION APPEAL OF: MARLEY PUMP COMPANY, VEEDER-ROOT CO., E.O. HABHEGGER CO. AND BAYARD PUMP & TANK CO. SUSAN B. FRALICK BALL, LARRY G. COMISAK, KATHRYN S. COMISAK, RICHARD COWHIG, CAREN COWHIG, FLORENCE DAHM, ON BEHALF OF HERSELF AND THE ESTATE OF EDWARD DAHM, CHRISTINE FISHER, WARREN FISHER, BARBARA A. FRANKL, DAVID GLASS, ELAINE GLASS, JARED GLASS, ALMA R. JACOBS, ON BEHALF OF HERSELF AND THE ESTATE OF J. ALEXANDER JACOBS, EUGENE KATZ, LENORE KATZ, SUN E. KIM, JOAN KUCH, ON BEHALF OF HERSELF AND THE ESTATE OF LEONARD KUCH, JOHN McCARRY, MARYBETH McCARRY, JONATHAN McCARRY, MATTHEW McCARRY, PATRICK McCARRY, JAMES J. MOORE, III, PATRICIA G. MOORE, LOUIS NICOLAI, BRUCE NICHOLAS, BEATRICE NICHOLS, RICHARD K. OBERHOLTZER, WENDY OBERHOLTZER, MEGAN OBERHOLTZER, TAYLOR OBERHOLTZER, RICHARD H. SHEPHERD, JR., WENDIE STEFFENS, MARK STEFFENS, PAYTON THURMAN, JOAN THURMAN, D. JEAN TISDALL, SUSAN WALSH, KURT WEIDENHAMMER, DEBBIE WEIDENHAMMER, KAREN WEIDENHAMMER, MARYANN WRUBEL, METRO J. WRUBEL AND TODD WRUBEL
v.
BAYARD PUMP & TANK CO., INC., GULF OIL LIMITED PARTNERSHIP, E.O. HABHEGGER CO., INC., TITEFLEX CORPORATION, VEEDER-ROOT CO., WAGNER AND T.F.W., INC.
v.
MARLEY PUMP COMPANY AND CONTAINMENT TECHNOLOGIES CORPORATION APPEAL OF: GULF OIL LIMITED PARTNERSHIP AND THOMAS F. WAGNER AND THOMAS F. WAGNER, INC.

ARGUED: November 29, 2011

Appeal from the Superior Court at No. 3061 EDA 2007 entered 10-30-2009, reconsideration denied 12-28-2009, reversing and remanding the order of Montgomery County Court of Common Pleas, Civil Division, at No. 99-06438 dated 10-10-2007.

OPINION

MR. McCAFFERY JUSTICE

We are called upon here to determine whether the Superior Court erred in holding that the trial court abused its discretion in ordering a separate trial of the claims of four test-case, or "bellwether" plaintiffs, from among the 45 plaintiffs in this case. For the reasons set forth herein, we conclude that the Superior Court erred.

This case stems from the underground leaking of gasoline from a gasoline station in Blue Bell, Pennsylvania, which caused an explosion in the springhouse of a realty office situated across the street from the station. The leak was widespread; many thousands of gallons moved underground throughout the surrounding neighborhoods. Pursuant to Pennsylvania Rule of Civil Procedure 2229(a), 45 affected individuals filed a single complaint against six defendants, alleging that gasoline and vapor (hereinafter "gasoline") from the leak had traveled underground, through soil and groundwater, and had reached and entered their homes, causing property damage to their homes and illness to those living there.[1] The six defendants then impleaded two additional defendants.

In order to determine how to best manage the litigation, the trial court conducted hearings on various motions, at which hearings, inter alia, it heard testimony and considered evidence regarding challenges to proposed expert witnesses. At the conclusion of this process the court issued a case management order severing the cases of four "bellwether" plaintiffs for trial in reverse bifurcated fashion, i.e., with exposure, causation and damages to be tried first, followed by a separate trial on liability of the defendants, if needed.[2] The case management order provided as follows:

[P]ursuant to pre-trial memoranda submitted by all parties through counsel, and taking cognizance of all matters brought before this [c]ourt prior to the above submissions, and after perusal of the same, the [c]ourt finds that by virtue of the great numbers of plaintiffs [(45)] and defendants (8) and because of the great number of witnesses to presented by the parties (100), a reverse bifurcation trial wherein a small, finite, number of parties will present their case shall:
a. foster the avoidance of prejudice by the presentation of lesser numbers of parties and witnesses;
b. promote efficiency and judicial economy; c. foster a lessening of expenses to all parties; d. enhance the prospects of a possible settlement; and
e. foster a more orderly presentation of evidence to the jury.
Accordingly, and taking all of the above into consideration, the [c]ourt ORDERS that this matter shall be tried as follows:
1. Trial-Damages
a. The following issues will be tried before a single jury:
i. Whether the [gasoline] reached plaintiffs['] property; ii. Whether the [gasoline] entered the plaintiffs' homes/houses; iii. Whether exposure to the [gasoline] caused the personal injuries claimed; iv. Whether exposure to the [gasoline] warrant[s] the medical monitoring claims by plaintiff[s]; v. Whether exposure to the [gasoline] caused property damage and property value diminution; and vi. The amount of plaintiffs' damages.
b. The above issues will be tried before a single jury. Four claims shall be tried, with Plaintiffs selecting two individual plaintiffs and the Defendants selecting two individual plaintiffs.
2. Post-Verdict a. Subsequent to verdict rendered by the jury above mentioned, the parties shall be granted a ninety (90) day period of time, if appropriate, to engage in settlement negotiations in the Ball Plaintiffs' claims.
3. Trial-Liability a. Should the above mentioned period of time fail to produce a settlement between the parties, then the issue of the liability of each defendant in the original four matters ...

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