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Short v. Amerada Hess Corp.

United States District Court, D. New Hampshire

March 29, 2019

Patrick Short, et al.
v.
Amerada Hess Corp. et al.

          Peter G. McGrath, Esq. Lisa S. Meyer, Esq. Nathan P. Eimer, Esq. Pamela R. Hanebutt, Esq. Owen R. Graham, Esq. Robert C. Dewhirst, Esq. Shelly Geppert, Esq. Peter W. Mosseau, Esq. Steve J. Bonnette, Esq. Stephen H. Roberts, Esq. Deborah E. Barnard, Esq. Jessica R. Early, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge

         Whether the plaintiffs in this environmental-contamination action may take it past the summary judgment stage depends on whether (1) they have demonstrated standing to sue, see U.S. Const. art. III, § 2, and (2) they filed this action within New Hampshire's three-year statute of limitations, accounting for the discovery rule, see N.H. Rev. Stat. Ann. § 508:4.

         Nineteen individual plaintiffs commenced this action in 2016, alleging that an underground gasoline leak discovered in 1990 in Swanzey, New Hampshire, injured their persons and property.[1] The gasoline contained methyl-tertiary butyl ether (“MTBE”), an additive that New Hampshire has banned since 2007. The defendants are gasoline manufacturers and suppliers and the current and former owners of the gas station from which the leak emanated. The court's subject matter jurisdiction over this removed case is based on diversity, 28 U.S.C. §§ 1332(a), 1446, and the Energy Policy Act of 2005, see 42 U.S.C. § 7545 note (Claims Filed After August 8, 2005), Pub. L. 109-58, Title XV, § 1503, Aug. 8, 2005 (“[c]laims and legal actions filed after [August 8, 2005] related to allegations involving actual or threatened contamination of [MTBE] may be removed to the appropriate United States district court.”).

         The 14 plaintiffs remaining in this action assert products-liability and negligence claims arising from alleged injuries to their persons.[2] Ten plaintiffs also assert nuisance and trespass claims, arguing that the value of their real property has been diminished by the presence of MTBE.[3] And all plaintiffs assert a claim under New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A, contending that the defendants engaged in unfair and deceptive business practices. The defendants move for summary judgment, see Fed.R.Civ.P. 56, arguing that all of the plaintiffs' claims except one[4] are barred either for lack of standing or by the applicable statute of limitations.[5]

         Having reviewed the parties' filings and exhibits, including supplemental filings after oral argument, the court grants the defendant's motion in large part and denies it in part. Specifically, all plaintiffs' claims under the New Hampshire Consumer Protection Act are barred by its statute of limitations. And all plaintiffs except Teresa Chandler have failed to carry their burdens of demonstrating standing or that the discovery rule prevents the statute of limitations from barring their tort claims. Accordingly, the court grants the defendants' motions as to all plaintiffs' claims except Chandler's tort claims.

         I. Applicable legal standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must “assert the absence of a genuine issue of material fact and then support that assertion by affidavits, admissions, or other materials of evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). “A genuine issue is one that could be resolved in favor of either party, and a material fact is one that has the potential of affecting the outcome of the case.” Vera v. McHugh, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotation omitted).

         Where, as here, the plaintiffs bear the ultimate burden of proof, once the movant has made the requisite showing, they can no longer “rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute.” Torres-Martínez v. P.R. Dep't of Corr., 485 F.3d 19, 22 (1st Cir.2007). That is, the plaintiffs “‘may not rest upon the mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue' of material fact as to each issue upon which [they] would bear the ultimate burden of proof at trial.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52-53 (1st Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).

         As it is obligated to do in the summary judgment context, the court “rehearse[s] the facts in the light most favorable to the nonmoving party (here, the plaintiff[s]), consistent with record support, ” and gives them “the benefit of all reasonable inferences that those facts will bear.” Noviello v. City of Boston, 398 F.3d 76, 82 (1st Cir. 2005) (internal citation omitted).

         The following background takes this approach, drawing on the parties' recitations of undisputed, accepted facts except where noted. Before moving on to that recitation, the court observes that it was hampered in this endeavor by the plaintiffs' failure to comply with Local Rule 56.1, which requires that “[a] memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial.” LR 56.1(b). Failure to comply with this requirement and properly oppose a motion for summary judgment, as the plaintiffs have failed to, may result in “[a]ll properly supported material facts set forth in the moving party's factual statement [being] deemed admitted . . . .” Id.

         In their opposition, the plaintiffs specifically refer to only four of the defendants' listed facts and state their general disagreement with defendants' characterizations of others.[6] In addition, plaintiffs' two-page statement of facts contains no record citations, as LR 56.1(b) requires.[7] The plaintiffs' supplemental memorandum[8] illuminates a few disputes left opaque by their objection, but generally fails to remedy the error because, in large part, the plaintiffs merely repeat their original opposition.[9]

         The Local Rules are “aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record.” Puerto Rico Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 131-32 (1st Cir. 2010). The court is loath to engage in “the sort of archeological dig that [such] anti-ferret rules are designed to prevent[, ]” Id. at 131, and will therefore “deem[ ] admitted” all “properly supported material facts set forth in [the defendants'] factual statement.” LR 56.1(b); Fed.R.Civ.P. 56(e)(2). But any such admissions do not automatically entitle the defendants to summary judgment. “[T]he district court is still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate.” Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir. 2006) (quotation and citation omitted).

         II. Background

         The following facts are undisputed. In May 1990, gasoline contamination was discovered in two catch basins located on Route 10 in Swanzey, New Hampshire, adjacent to a gas station and mini mart. Approximately 14 inches of gasoline-contaminated water was observed in that catch basin; another catch basin across Route 10 was also impacted. After an investigation by the New Hampshire Department of Environmental Services (“NH DES”) and further testing, three underground storage tanks were removed from the gas station.

         Since 1990, DES has overseen and approved remediation and testing of the gas station location. GeoInsight, the gas station's primary environmental consultant, provided detailed reports summarizing site activity to NH DES. The reports have been publicly available on the NH DES website. The gas station work required that certain nearby water supplies be regularly tested under NH DES supervision, including those serving several of the plaintiffs. These residential water supply test results were also given to the residents and are available to the public.

         In 2003, the State of New Hampshire sued several oil companies for MTBE contamination. The state settled with some of the defendants for $35 million and a jury awarded the state $236 million in damages in April 2013. See State v. Exxon, 168 N.H. 211 (2015). The State of New Hampshire banned the sale of gasoline containing MTBE in 2007. See N.H. Rev. Stat. Ann. § 146-A:19 (MTBE ban as presently codified); N.H. Rev. Stat. Ann. § 146-G:12 (MTBE ban as originally enacted; repealed 2015).

         The plaintiffs are current or former Swanzey residents who allege their health and property were impacted by MTBE resulting from the underground gasoline leaks. They have sued CITGO Petroleum Corporation (“CITGO”) and ExxonMobil Corporation and ExxonMobil Oil Corporation (collectively, “ExxonMobil”) as manufacturers, marketers, or suppliers of gasoline containing MTBE, which plaintiffs allege has damaged their water supplies, caused them to suffer personal injuries, and diminished their property values. The plaintiffs also sued defendants Shri Ganesh Corporation, Joseph Hart, and Peterborough Oil Company in their alleged capacities as the current and former gas station owners.

         The defendants initially moved to dismiss the plaintiffs' complaint, largely on the same grounds raised in their summary judgment motion. With agreement from the parties, the court denied those motions without prejudice and allowed a period of discovery followed by summary judgment motions limited to those issues.[10] The court reviewed the parties' filings and exhibits and held oral argument on the defendants' motions on September 25, 2018.

         Following that argument, the court ordered the parties to supplement their submissions with, among other things, a clear statement of which of the defendants' arguments applied to which claims brought by which plaintiffs.[11] The court also permitted the parties to file additional affidavits or deposition testimony that, as the parties represented at oral argument, existed and were relevant to the parties' arguments, but had not yet been made part of the summary judgment record.[12]

         III. Analysis

         All 14 plaintiffs assert three claims arising out of alleged personal injuries suffered as a result of MTBE contamination: (1) products liability for defective design (Count I); (2) products liability for failure to warn (Count II); and (3) negligence (Count VI). Ten of those plaintiffs also assert three claims arising out of alleged damage to their property: (1) nuisance (Count III); (2) trespass (Count V); and (3) nuisance and trespass against the current and former gas station owners (Count VIII). Finally, all 14 plaintiffs bring a claim under New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann. § 358-A:2 (Count VII).[13]

         The defendants raise the same arguments with respect to each of these claims: Either the plaintiffs have failed to demonstrate standing to bring the claim in question or the claim is barred by the statute of limitations. The court addresses the defendants' arguments separately as to each category of claims.

         A. Property-damage claims (Counts III, V, VIII)

         Ten of the plaintiffs assert, in three counts, the common-law claims of trespass and nuisance based on damage to their property through contamination by MTBE. Though the complaint lacks any indication of which plaintiffs assert which counts, in their supplemental memorandum ordered by the court the plaintiffs clarified that only Arsenault, David Bashaw, Jr., Armond and Marion Bedard, Chandler, Demond, House, Shelley, Short, and Symonds assert these property-based claims.[14] The defendants contend, and the court agrees, that Arsenault, Demond, House, Shelley, and Symonds lack standing to bring them and that, though David Bashaw, the Bedards, and Short have standing, they are barred by the statute of limitations.[15] The defendants do not challenge Chandler's property-based claims at this posture.[16]

         1. Property-based tort claims

         As mentioned above, the plaintiffs bring two property-related tort claims: trespass and nuisance. Trespass is “an intentional invasion of the property of another.” Moulton v. Groveton Papers Co., 112 N.H. 50, 54 (1972). Drawing on the Restatement (Second) of Torts, New Hampshire imposes trespass liability on a person,

irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

Case v. St. Mary's Bank, 164 N.H. 649, 658 (2013) (quoting Restatement (Second) of Torts § 158 (1965)).

         Where trespass involves an invasion of another's property, nuisance constitutes “an activity which results in an unreasonable interference with the use and enjoyment of another's property.” Robie v. Lillis, 112 N.H. 492, 495 (1972). “A nuisance arises from the use of property, either actively or passively, in an unreasonable manner.” Shea v. City of Portsmouth, 98 N.H. 22, 27 (1953). “Liability is imposed only in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances.” Robie, 112 N.H. at 496 (quoting Restatement (Second) of Torts, § 822, Comment g at 27-28 (Tent. Draft No. 17, 1971)). “This requirement of a finding of unreasonableness is the crux of the law of nuisance.” Id. For example, “[e]ven the storage of gasoline and oil in large quantities constitutes a nuisance only when the hazard to adjoining property owners is substantial.” Id. (citing Hilliard v. Shuff, 256 So.2d 127 (La. 1971)).

         Damages in both trespass and nuisance actions “are measured primarily by the difference between the value of the real estate before and after the defendant's wrong was committed.” Delay Mfg. Co. v. Carey, 91 N.H. 44, 44 (1940). See also Soucy v. Royal, 116 N.H. 170, 172 (1976) (damages in trespass and nuisance are “determined by the difference between the value of the property with and without the trespass and nuisance”).

         2. Standing

         “Although the Constitution does not fully explain what is meant by ‘[t]he judicial Power of the United States,' Art. III, § 1, it does specify that this power extends only to ‘Cases' and ‘Controversies,' Art. III, § 2.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). Rooted in the “case and controversy” requirement, the standing doctrine “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id. “The standing inquiry is both plaintiff-specific and claim-specific. Thus, a reviewing court must determine whether each particular plaintiff is entitled to have a federal court adjudicate each particular claim that he asserts.” Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006) .

         To satisfy the standing requirement, “a plaintiff must establish each part of a familiar triad: injury, causation, and redressability.” Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012). That is, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61).

         “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id. “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Katz, 672 F.3d at 71 (quoting Defenders of Wildlife, 504 U.S. at 561). So, “[i]n response to a summary judgment motion, . . . the plaintiff can no longer rest on . . . ‘mere allegations,' but must ‘set forth' by affidavit or other evidence ‘specific facts,' which for purposes of the summary judgment motion will be taken to be true.” Defenders of Wildlife, 504 U.S. at 561 (quoting Fed.R.Civ.P. 56(e)).

         The defendants contend that five of the plaintiffs lack standing to bring their property-based claims because they cannot demonstrate the requisite injury-in-fact without evidence that MTBE has been detected on their property.[17] Such injury “is defined as ‘an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical.'” Katz, 672 F.3d at 71 (quoting Defenders of Wildlife, 504 U.S. at 560). “[C]oncreteness and particularization are distinct requirements. An injury is concrete only if it ‘actually exist[s].'” Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016) (quoting Spokeo, 136 S.Ct. at 1543). And particularization requires that a “plaintiff must adduce facts demonstrating that he himself is adversely affected” by the defendant's allegedly injurious conduct. Id. at 732.

         a) Individual water supplies (Demond, House, Shelley, and Symonds)

         Plaintiffs Demond, House, Shelley, and Symonds each draw their water from wells on their own (or a next-door neighbor's) property. To demonstrate an injury to their property for standing purposes, in this context, the plaintiffs must, “by affidavit or other evidence, ” set forth facts from which the court may infer that, at the very least, MTBE invaded their property (trespass) or interfered with the use of that property (nuisance). See Defenders of Wildlife, 504 U.S. at 561. They have not done so here.

         No MTBE has been detected in water drawn from these plaintiffs' wells. Specifically, the record contains no evidence that their water has ever tested positive for MTBE. Demond, Shelley, and Symonds have submitted no evidence of any testing performed on the water at their homes. House's water consistently tested negative for MTBE between 2011 and 2017.[18]These plaintiffs therefore have not satisfied the injury-in-fact element of the standing analysis.

         Despite the lack of detection in their own water, both House and Demond argue that positive MTBE tests from neighboring properties demonstrate injury to their own property. Specifically, House claims that her neighbor's water supply tested positive in 2011.[19] And Demond contends that “[t]he well next door” tested positive in 2011.[20] But, “the plaintiff[s] generally must assert [their] own legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). They must, instead “adduce facts demonstrating that [they themselves are] adversely affected” by the defendant's allegedly injurious conduct. Hochendoner, 823 F.3d 732. Thus, in this case, invasion of another's land does not confer standing on House and Demond to bring trespass claims. And no evidence in the record suggests interference with enjoyment of their properties based on intrusion into another's water supply.

         This is particularly true in light of the damage that the plaintiffs allege they suffer as a result of the intrusion of MTBE on their land. Specifically, based on an unsigned, undated “affidavit” from Pete Duval, a licensed real estate agent, [21] the plaintiffs contend that they would “have to disclose MTBE was found in the drinking water” when selling their homes, leading to lower property values.[22] They contend, as a result, that “properties that have a history of exposure will . . . more likely than not sell for less money than comparable properties that do not have such problems.”[23] Demond's, House's, Shelley's, and Symonds' properties have no such history of exposure. Absent evidence of such exposure, these plaintiffs have failed to establish injury-in-fact.[24]

         b) Pine Grove water supply (Arsenault)

         Unlike the plaintiffs with individual water supplies, Joseph Arsenault owns a mobile home in the Pine Grove Mobile Home Park. “Pine Grove operates a community public water system for its residents” and is “required by law to provide customers with reports describing contaminants, ” such as MTBE, “detected in the water supply.”[25] The undisputed record evidence shows that MTBE was never detected in Pine Grove's community water supply during the time Arsenault lived there, [26] from 1980 to 1984 and from 2000 to the present.[27]

         The plaintiffs rely instead on evidence that MTBE was detected in two monitoring wells in Pine Grove.[28] Specifically, MTBE was detected in Monitoring Well 6 in 1990, 1991, 1992, 2003, and 2004, and in Monitoring Well 10 in 1991, 1992, 2002, 2003, and 2004.[29] But Monitoring Well 7, which appears to be that located closest to (if not on) Arsenault's lot, [30] never tested positive for MTBE.[31]

         The plaintiffs also rely on an unsigned, undated “affidavit” from “professional engineer” Ellen Moyer to establish MTBE contamination of property and water in Pine Grove.[32] Again, however, the court cannot rely on an unsworn statement at the summary judgment stage. See Cordero-Soto, 418 F.3d at 120; Fed.R.Civ.P. 56(c)(4).

         Arsenault has therefore failed to establish more than mere conjecture that MTBE has invaded the land under his mobile home; and the undisputed record evidence shows that MTBE has never been found in his water supply. Accordingly, he has not demonstrated the injury-in-fact element of standing.

         c) Plaintiffs' aquifer-based theory

          All five of these plaintiffs, as well as the personal-injury plaintiffs discussed infra, attempt to establish standing by arguing that MTBE contamination of an aquifer underlying Swanzey must necessarily have injured each of them. Specifically, the plaintiffs argue that they all “get their source water from the same aquifer in the area of Swanzey involved, ”[33] and that “[t]he mere detections of some MTBE, no matter the level, ” within the aquifer, “illustrates that at some point MTBE leaked into the water supply and that at some point the levels could have been much higher and have since been diluted.”[34] That is, they contend, the detection of MTBE at any level anywhere in the aquifer from which they all draw their water necessarily means contamination of their own water supply at some point.

         But the plaintiffs have offered no evidence in support of this leap in logic. This theoretical contamination of property where no MTBE has been detected therefore fails to satisfy the standing requirement that the plaintiffs' injury must be “concrete” and “particularized” - that is, it must “actually exist” and the individual plaintiff must be “adversely affected.” Hochendoner, 823 F.3d at 731-32.

         Even if aquifer-wide contamination constituted a non-conjectural, particularized injury, the plaintiffs have not adduced admissible evidence from which the court could infer aquifer-wide contamination or the plaintiffs' injury as a result. They rely first on a report from Granite State Rural Water Association, which describes the gas leak and notes that monitoring wells observed MTBE contamination in some places.[35]But record evidence, however, also shows that other monitoring wells did not detect MTBE contamination.[36] And nothing in the report, generally, supports the inference that MBTE contaminated the entire aquifer, even assuming that Swanzey has only one.[37]

         The remaining evidence the plaintiffs cite in support of this theory comes from affidavits by plaintiffs Short, Demond, and Shelley.[38] These statements, however, constitute clearly inadmissible hearsay, Fed.R.Evid. 801(c), or otherwise fail to satisfy the requirement of Federal Rule of Civil Procedure 56(c)(4) that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

         Short's statements are all either based on hearsay or lack a foundation of personal knowledge. For example, Short - who does not profess to be a hydrogeology expert and who appears to lack any personal knowledge on the question - explained that “[t]he town has told us if a private well happens to lie within an area with high transmissivity, pollution that occurs a mile away could possibly pollute that well within a few days.”[39] Short's assertion that the aquifer “is under all . . .plaintiffs” and is contaminated with MBTE appears likewise based on the Granite State Rural Water Association Report and a conversation with a “well and water expert, ” who “explained that the aquifer that feeds all of the wells for all of the named plaintiffs has had MTBE in it for many years. So all of the plaintiffs have had exposure to MTBE from the same aquifer.”[40]He also appears to draw his knowledge concerning the size, location, and flow rate of the aquifer from other sources.[41]While the court takes no position on the underlying truth or amenability to proof of these statements, or the credibility of whoever made them, there can be no question that they constitute inadmissible hearsay and may not be considered on summary judgment. Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007) (“It is black-letter law that hearsay evidence cannot be considered on summary judgment” for the truth of the matter asserted.).

         Neither Shelley's nor Demond's statements concerning MBTE contamination of the aquifer are admissible, either. Shelley explained that he “found out from neighborhood gossip, we had MTBE poisoning in the West Swanzey aquifer.”[42] And Demond stated that she has been “told that the source aquifer for our well and most of the area is contaminated from the [gas station]”; “[p]eople have told me that they have test results showing MTBE in the aquifer feeding our well. . . . I have asked for those test results to be located and provided”; and “I am told that my dug well draws from the local groundwater and it is the same ground water source that has the MTBE in it.”[43] To the extent that the plaintiffs offer these statements for the truth of the matter asserted - specifically, that the source aquifer was contaminated and affected them or anyone else on the same groundwater source - they constitute inadmissible hearsay, see Fed.R.Evid. 801(c), and cannot be considered on summary judgment.

         3. Statute of limitations

          Plaintiffs Short, David Bashaw, and Armond and Marion Bedard own property where testing revealed the presence of MTBE. The defendants, conceding standing as to these plaintiffs' property-based claims in light of those results, move for summary judgment on those claims as time-barred.

         The parties agree that New Hampshire's three-year statute of limitations for personal actions governs the plaintiffs' trespass and nuisance claims.[44] Under that statute,

Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of . . . .

N.H. Rev. Stat. Ann. § 508:4, I. The parties further agree that the underlying gas station leak which was discovered in 1990, [45] and contamination of these plaintiffs' properties, which was discovered in 2011, both occurred more than three years before the plaintiffs filed this action in 2016.

         The plaintiffs argue that their actions are timely under the “discovery rule, ” an exception to the three-year statute of limitations. Under that rule,

when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

N.H. Rev. Stat. Ann. § 508:4, I. The discovery rule in New Hampshire thus has two elements: “First, a plaintiff must know or reasonably should have known that it has been injured; and second, a plaintiff must know or reasonably should have known that its injury was proximately caused by conduct of the defendant.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 713 (2010) (citations omitted). The plaintiffs invoking the discovery rule have “the burden of proving that an exception applies to toll the statute of limitations . . . .” Feddersen v. Garvey, 427 F.3d 108, 112 (1st Cir. 2005) (quoting Furbush v. McKittrick, 149 N.H. 426, 430 (2003)).

         a) Plaintiffs' notice of their claims

         The undisputed evidence demonstrates that Short, David Bashaw, and the Bedards received notice, in 2011, of positive tests for MTBE on their property resulting from the gas station's leak. Thus, even setting aside the extensive press coverage of the gas leak submitted by the defendants, [46] each of these plaintiffs was on notice of both injury to their property in the form MTBE contamination and the causal connection between that injury and the defendants' actions no later than 2011.

         Short, for example, has lived across the street from the gas station since 1963 and acquired the property in 2016.[47] His mother, who also resided there, received four notices of positive tests for MTBE on her property between September 2011 and October 2012.[48] These notices indicated that MTBE is “a potential human carcinogen, ” and that “[y]ou or your family may want to share this information with your physicians.”[49] The notice also contained a link to a NH DES “Environmental Fact Sheet.”[50] According to the Fact Sheet, the DES Environmental Health Program “concludes that MTBE is an animal carcinogen. In the interests of protecting public health, we are assuming that the animal study results are relevant to humans until additional research can confidently demonstrate otherwise.”[51]

         Short was aware of these MTBE detections and was “very upset about the MTBE detected in his water supply well.”[52] He also knew of its connection to the gas station: In 2011, a GeoInsight geologist “walk[ed] him through the process of how to get information on the [Gas Station] from the NHDES Online Database, ”[53] and he consulted an attorney about a potential lawsuit.[54] The fact that Short engaged the services of an attorney in 2011 regarding the MTBE issue forecloses any reasonable argument that Short did not know and could not reasonably have discovered “that he suffered some harm caused by the defendant's conduct.” Beane, 160 N.H. at 713.

         The Bedards[55] and David Bashaw[56] likewise received notices from NH DES that MTBE was detected in their drinking water in 2011. Their notices include the same language referring to MTBE as a “potential human carcinogen” and a reference to the DES Fact Sheet described above.[57] Neither the Bedards nor David Bashaw dispute their awareness, in 2011, of MTBE contamination on their property or its connection to the gas station leak.

         b) Plaintiffs' counter-arguments

         In an effort to counter this undisputed evidence, the plaintiffs argue, first, that they did not know the extent of their damages before April 2013 (at the earliest) and, second, that one of the defendants fraudulently concealed the danger of MTBE from them. Neither of these arguments overcomes the statute of limitations at the summary judgment stage because neither creased a genuine dispute of material fact.

         First, these plaintiffs submitted declarations to the effect that they did not know the extent of their damages until sometime within the limitations period - that is, that they “did not know of diminution of value of their property” as a result of MTBE contamination “until after 2013, ” bringing their suit within the three-year limitations period.[58] Short, for example, states that he “was not fully aware in 2013 that the MTBE problems cause cancer and [that MTBE] makes us sick, ” and that he “did not find out that it could damage my property value, and that I could get cancer until approximately 2014.”[59] He further contended that “it did not occur to me until after the state verdict in 2013 that my house and property value was damaged, ” and that he was damaged in 2015 when he “spoke to bankers, realtors, and others in 2015 who told me they will not refinance or lend more on the mortgage.”[60]

         The Bedards' nearly identical affidavits provide no countervailing facts to rebut the notices they received regarding MTBE and cancer.[61] Both say only that they “had no idea [they] had a cause of action for a lawsuit for cancer back in 2011 or 2012.”[62] But they also say that they “have always been concerned about the effect MTBE has on our water supply, but we never thought about filing a lawsuit.”[63] And David Bashaw claims that he “did not find out that [MTBE] could damage [his] property value . . . until approximately 2014, ” when he “was basically told [his] property is worth nothing by Savings Bank.”[64]

         But the plaintiffs misapprehend the requirements of the discovery rule. It does not require “the full extent of the plaintiff's injury [to have] manifested itself” or that a plaintiff “be certain of th[e] causal connection” between the harm he has suffered and the defendant's negligent or wrongful act. Beane, 160 N.H. at 713. “The possibility that [the causal connection] existed will suffice to obviate the protections of the discovery rule.” Id. (quotation omitted). And “that the plaintiff could reasonably discern that he suffered some harm caused by the defendant's conduct is sufficient to render the discovery rule inapplicable.” Id. (quotation omitted). These plaintiffs' undisputed knowledge in 2011 satisfies these requirements.

         Separately, Short and David Bashaw also contend that defendant Bobby Patel fraudulently concealed the dangers of MTBE from them, precluding awareness that they had a claim against the defendants until they learned otherwise in 2013.[65] “[T]he fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence.” Bricker v. Putnam, 128 N.H. 162, 165 (1986). As with the discovery rule, the plaintiffs bear the burden of demonstrating fraudulent concealment. See Furbush, 149 N.H. at 430-32.

         Here, however, there is no evidence in the record that Patel concealed any essential facts from either Short or David Bashaw. Both have submitted affidavits and deposition testimony to the effect that Patel told them that the “water was safe”[66]and the MTBE contamination was “not a big deal.”[67] But, as discussed supra, the undisputed evidence demonstrates that both Short and David Bashaw received notice of the dangers of MTBE through the DES notifications. Because they received actual notice of the material fact that they claim Patel concealed, even if that single statement constitutes some form of concealment, it does not operate to toll the statute of limitations. E.g., Lamprey v. Britton Const., Inc., 163 N.H. 252, 260-61 (2012) (stonemason's statement that stones “should not have come loose” did not constitute fraudulent concealment where plaintiffs knew masonry was failing).

         B. Personal-injury claims ...


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