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In re Schlumberger Technology Corp.

Court of Appeals of Texas, Eleventh District

October 24, 2019

IN RE SCHLUMBERGER TECHNOLOGY CORPORATION AND THE DOW CHEMICAL COMPANY

         Original Mandamus Proceeding

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [5]

          MEMORANDUM OPINION

          JOHN M. BAILEY, CHIEF JUSTICE.

         Relators, Schlumberger Technology Corporation (Schlumberger) and the Dow Chemical Company (Dow), filed this original petition for writ of mandamus in which they request that we instruct the Honorable Jeffrey Todd Robnett, Presiding Judge of the 441st District Court of Midland County, to vacate an order entered on May 28, 2019, in Cause No. CV48034. In that order, Judge Robnett denied Relators' motion to dismiss the case. We conditionally grant the petition for writ of mandamus.

         We note at the outset that this case has a unique factual and procedural history. In 2009, the Texas Commission on Environmental Quality tested the groundwater underneath the Cotton Flat community in Midland and discovered that it was contaminated with hexavalent chromium. The Environmental Protection Agency (the EPA) subsequently designated the area impacted by the contamination as a "Superfund Site."

         Over three hundred individuals, who are the real parties in interest in this proceeding, sued Relators and Lear Corporation[1] in 2011. Real Parties in Interest alleged that they had been harmed by the contamination and that Relators and Lear were the source of the contamination. The suit was essentially dormant until late 2016 when Real Parties in Interest served Schlumberger with written discovery. Schlumberger responded with a motion for a protective order and a motion for a Lone Pine order.[2] Schlumberger specifically requested that Real Parties in Interest be required to provide, within 120 days, affidavits that contained information on each individual's alleged exposure to the contamination and injuries from the contamination. Schlumberger's motion was set for a hearing on April 20, 2017.

         Prior to the hearing, the parties engaged in discussions about abating the case. On April 11, 2017, Denise Scofield, counsel for Schlumberger, indicated in an e-mail to Brian Carney, counsel for Real Parties in Interest, [3] that Schlumberger was willing to "table" its motion for a Lone Pine order and agree to an administrative abatement of the case on the following conditions:

[I]f EPA determines Schlumberger is in whole or in part the source of the chromium contamination on or before April 13, 2019, plaintiffs may reopen the case provided they do so within 30 days of the EPA's determination and if EPA does not determine that Schlumberger is in whole or in part the source of the chromium contamination on or before April 13, 2019, your clients' case will be dismissed. (The year 2019 is ten years after the chromium purportedly was discovered.)

         On April 13, 2017, Scofield provided Carney with a revised proposed order. Carney responded that he would "look it over" and asked Scofield if Mike Brem, counsel for Dow, was "opposed to this idea." Scofield responded that both Dow and Schlumberger would "prefer a dismissal" but that she understood that "the optics of a dismissal are less appealing" to Real Parties in Interest. Scofield stated that "functionally we achieve the same thing with abatement - if EPA names [Schlumberger] as the source (or a source) in the next 2 years, you can re-open. If not, 10 years will have passed, and we can move to dismiss." Carney stated that he would contact Brem "to make sure he doesn't oppose it."

         In an e-mail to Scofield and Brem on April 14, 2017, Carney requested that the proposed order be changed to include Dow. Both Brem and Scofield agreed to the change because it was really a "location" or "facility/site" issue rather than an issue related to any particular entity.

         On April 17, 2017, Real Parties in Interest filed an unopposed motion to abate the case. In the motion, Real Parties in Interest represented to the trial court:

The suit should not go forward unless (1) the [EPA] makes a written finding that [Schlumberger] is a source in whole or in part of the hexavalent chromium contamination in the Cotton Flat community in Midland, Texas, on or before April 15, 2019, and (2) [Real Parties in Interest] move to re-open the case on or before 60 days from the date of the EPA's written finding.

(Emphasis added). Real Parties in Interest stated that the parties had not conducted significant discovery but that there was a hearing set on Schlumberger's motion for a protective order and motion for a Lone Pine order. Real Parties in Interest indicated that, "[r]ather than moving forward with discovery," they wished "to abate this lawsuit pending further regulatory investigation regarding the source of the hexavalent chromium contamination at the site." Real Parties in Interest specifically requested that the case be abated "in its entirety, pursuant to the parties' agreement below." In their prayer for relief, Real Parties in Interest set out the parties' agreement.

         On April 19, 2017, the Honorable Rodney W. Satterwhite[4] signed an order that granted the motion to abate (the Abatement Order). In conformance with the relief requested by Real Parties in Interest, Judge Satterwhite ordered:

1. If the [EPA] makes a written finding on or before April 15, 2019 that [Schlumberger] or [Dow] is a source in whole or in part of the hexavalent chromium contamination in the Cotton Flat community in Midland, Texas, [Real Parties in Interest] may re-open the case if they make such a motion on or before 60 days from the date of the EPA's written finding. If [Real Parties in Interest] fail to move to re-open the case on or before 60 days from the date of the EPA's written finding, this Court shall dismiss this litigation on the motion of any party.
2. If the EPA does not make a written finding that [Schlumberger] or [Dow] is a source in whole or in part of the hexavalent chromium contamination in the Cotton Flat community in Midland, Texas on or before April 15, 2019, this Court shall dismiss this litigation on the motion of any party.
3. [Real Parties in Interest] may non-suit their claims at any time.

         The EPA did not make a finding as to the source of the hexavalent chromium contamination by April 15, 2019. Relators subsequently moved to dismiss the case on April 16, 2019. Relators sought a dismissal pursuant to the terms of the Abatement Order. In response, Real Parties in Interest moved to stay the Abatement Order "pending further information from the EPA." Real Parties in Interest admitted that "the parties entered into an agreement and the Court ordered abatement of the action pending investigation by the EPA," but Real Parties in Interest argued that the abatement ...


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