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Filed File Date: 6/10/2020 9:49 AM Hillsborough Superior Court Northern District E-Filed Document

THE STATE OF NEW HAMPSHIRE

Hillsborough County Superior Court Northern District 216-2019-CV-00445

State of New Hampshire

3M Company et al.

STATE’S REPLY TO DEFENDANTS’ RESPONSE TO THIRD NOTICE OF SUPPLEMENTAL AUTHORITY

Plaintiff, the State of New Hampshire (“the State”), by and through its undersigned

counsel, provided supplemental authority to the Court with decisions from the Vermont Superior

Court, on May 29, 2020. In doing so, the State provided the supplemental authority without

engaging in further argument or repeating arguments previously made. 3M, however, has now

filed an apparently substantive responsive pleading which DuPont/Chemours has joined. While

disagreeing that these pleadings are provided by the rules, the content of these pleadings fail to

provide the Court with the whole story of the argument made in Vermont or the relevant

Vermont law and are therefore misleading without further context. Additional pleadings and

resources are necessary to inform this Court of the context in which the Vermont Superior Court

made its ruling. Accordingly, the State provides those additional resources here.

First, unlike the State’s argument to this Court, the State of Vermont did not argue that it

constructively possesses public lands. It did not make this argument in is pleadings or at oral

argument on the motions to dismiss and motion to sever and stay. Enclosed is Vermont’s

Opposition Memorandum to the motions to dismiss (without attachments) as well as the oral

argument transcript from the Vermont Superior Court hearing on these matters. For reference,

the Court is directed to Tr. 45–46; 75–86 for a discussion of possession, generally, with no claim

of constructive possession. 1 Second, the state of Vermont does not have a counterpart statute to NH RSA 271:20 and

481:1, giving the State ownership and control over groundwater and surface waters. See also,

Seward v. Loranger, 130 NH 570, 571 (1988); compare Vermont Memo. Opp. MTD at 38, n. 28.

Therefore, the Court will also note an absence in the Opposition and at oral argument of any argument that Vermont possesses, constructively or otherwise, water resources.

These additional resources inform this Court in evaluating how much weight to give the

Vermont Superior Court’s rulings and provide the proper context for the arguments defendants have made.

Dated: June 10, 2020 Respectfully submitted,

STATE OF NEW HAMPSHIRE

By its attorney, GORDON J. MACDONALD ATTORNEY GENERAL

/s/ Ashley Campbell Richard W. Head, NH Bar #7900 Ashley B. Campbell, NH Bar #264860 SL ENVIRONMENTAL LAW GROUP 201 Filbert Street, Suite 401 San Francisco, CA 94133 Tel: (603) 716-8235 [email protected] [email protected]

2 K. Allen Brooks, NH Bar #16424 Senior Assistant Attorney General Christopher G. Aslin, NH Bar #18285 Senior Assistant Attorney General Environmental Protection Bureau NEW HAMPSHIRE DEPT. OF JUSTICE 33 Capitol Street Concord, NH 03301 Tel: (603) 271-3650 [email protected] [email protected]

William J. Jackson (admitted pro hac vice) John D.S. Gilmour (admitted pro hac vice) Lana M. Rowenko (admitted pro hac vice) KELLEY DRYE & WARREN LLP 515 Post Oak Blvd., Suite 900 Houston, TX 77027 Tel: (713) 355-5000 [email protected] [email protected] [email protected]

Robert A. Bilott (admitted pro hac vice) David J. Butler (admitted pro hac vice) TAFT STETTINIUS & HOLLISTER LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202-3957 Tel: (513) 381-2838 (614) 221-2838 [email protected] [email protected]

Gary J. Douglas (pro hac vice pending) Michael A. London (pro hac vice pending) Rebecca G. Newman (pro hac vice pending) Tate Kunkle (pro hac vice pending) DOUGLAS & LONDON, P.C. 59 Maiden Ln, 6th Fl, New York, NY 10038 Tel: (212) 566-7500 [email protected] [email protected] [email protected] [email protected]

CERTIFICATE OF SERVICE

I hereby certify on this 10th day of June 2020, a copy of the foregoing document was served via electronic service through the Court’s electronic filing system on all counsel of record.

/s/ Ashley Campbell Ashley Campbell, NH Bar # 264860

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION CHITTENDEN UNIT DOCKET NO. 547-6-19 Cncv

State of Vermont v.

3M Company, E. I. du Pont de Nemours and Company, The Chemours Company, The Chemours Company FC, LLC, Corteva, Inc., and DuPont de Nemours, Inc.

PLAINTIFF STATE OF VERMONT’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT 3M COMPANY’S MOTION TO DISMISS TABLE OF CONTENTS

Introduction ...... 1 Background ...... 3 I. PFAS are toxic chemicals that pose serious health and environmental risks. . 3 II. 3M manufactured and supplied PFAS and products containing PFAS to Vermont despite knowing of their serious health and environmental risks...... 4 III.PFAS have contaminated many State natural resources and properties...... 6 Standard of Review ...... 6 Argument ...... 7 I. The State’s natural resource damages and restoration claim encompasses all PFAS-contaminated natural resources...... 7 A. The State may bring an NRD claim to protect surface waters against toxic chemical pollution...... 8 B. The State may bring an NRD claim to protect groundwater and other natural resources...... 13 II. The State properly pled a design defect claim...... 17 III. The State has pleaded nuisance claims...... 22 A. Vermont law does not impose a “control” requirement...... 22 B. Nuisance liability is not limited to harms from the use of land...... 26 C. The State has sought proper relief for its public and private nuisance claims...... 27 IV. The State properly pled its trespass claims...... 31 A. Chemical invasions constitute actionable trespasses...... 31 B. Product manufacturers can be liable for causing a trespass...... 33 C. The State is not required to plead exclusive possession...... 35 Conclusion ...... 39

TABLE OF AUTHORITIES

Page(s)

Cases

Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524 (S.D.N.Y. 2007) ...... 32

Aranoff v. Bryan, 153 Vt. 59, 569 A.2d 466 (1989) ...... 22

Attorney Gen. v. Hermes, 339 N.W.2d 545 (Mich. Ct. App. 1983) ...... 36

Bloomingdales v. New York City Transit Auth., 915 N.E.2d 608 (N.Y. 2009) ...... 37

Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47 (N.J. 1972) ...... 9

Camden County Board v. Beretta, 273 F.3d 536 (3d Cir. 2001) ...... 24

Carlson v. Latvian Lutheran Exile Church, 171 A.3d 1227 (N.H. 2017) ...... 37

City of Evansville v. Ky. Liquid Recycling., 604 F.2d 1008 (7th Cir. 1979) ...... 28

City of Montpelier v. Barnett, 2012 VT 32, 191 Vt. 441, 49 A.3d 120...... 9, 10, 13

City of San Diego v. Monsanto Co., No. 15cv578-WQH-AGS, 2017 WL 5632052 (S.D. Cal. Nov. 22, 2017) ...... 24

City of San Jose v. Monsanto Co., 231 F. Supp. 3d 357 (N.D. Cal. 2017) ...... 24

City of Seattle v. Monsanto Co., 237 F. Supp. 3d 1096 (W.D. Wash. 2017) ...... 24, 28

City of Spokane v. Monsanto Co., No. 2:15-CV-00201-SMJ, 2016 WL 6275164 (E.D. Wash. Oct. 26, 2016) ...... 24

Colby v. Umbrella, Inc., 2008 VT 20, 184 Vt. 1, 955 A.2d 1082...... 6, 20, 22

Com. v. Endo Health Sols. Inc., No. 17-CI-1147, 2018 WL 3635765 (Ky. Cir. Ct. July 10, 2018) ...... 25

County of Santa Clara v. Atlantic Richfield, 137 Cal. App. 4th 292 (2006) ...... 24, 28

Fortier v. Flambeau Plastics Co., 476 N.W.2d 593 (Wis. Ct. App. 1991) ...... 32

Halsey v. Smith & Nephew, Inc., No. 5:12–cv–171, 2014 WL 12717702 (D. Vt. Feb. 4, 2014) ...... 19

Hazen v. Perkins, 92 Vt. 414, 105 A. 249 (1918) ...... 10, 11

Heco v. Midstate Dodge LLC, No. S08692010, 2013 WL 6978697 (Vt. Super. Ct. Mar. 14, 2013) ...... 19

In re Hodgdon, 2011 VT 19, 189 Vt. 265, 19 A.3d 598...... 12

Hoery v. United States, 64 P.3d 214 (Colo. 2003) ...... 32

Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir. 2003) ...... 23, 24

Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387 (1892) ...... 7

John Larkin, Inc. v. Marceau, 2008 VT 61, 184 Vt. 207, 959 A.2d 551 ...... 31, 33, 37

Kwon v. Edson, 2019 VT 59, __ A.3d __ ...... 22

LeClair v. LeClair, 2017 VT 34, 169 A.3d 743 ...... 39

Mahoney v. Tara, LLC, 2011 VT 3, 189 Vt. 557, 15 A.3d 122 ...... 6

Manning v. Goodyear Tire & Rubber Co., No. S1087-03 CnC, 2005 WL 5895181 (Vt. Super. Ct. July 20, 2005) ...... 19

Martin v. Shell Oil Co., 180 F. Supp. 2d 313 (D. Conn. 2002) ...... 32

iii

Martin v. Waddell’s Lessee, 41 U.S. 367 (1842) ...... 7

Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972) ...... 9, 14, 28

Michael v. General Motors Co., No. 15 Civ. 3659 (CM), 2018 WL 6332883 (S.D.N.Y. 2018), aff’d No. 18-3658-CV, 2019 WL 5561211 (2d Cir. Oct. 29, 2019) ...... 21

Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, 208 A.3d 609 ...... 20

In re MTBE, 379 F. Supp. 2d 348 (S.D.N.Y. 2005) ...... 24, 34

In re MTBE, 725 F.3d 65 (2d Cir. 2013) ...... passim

In re Nassau County, 918 N.Y.S.2d 399, 2010 WL 4400075 (N.Y. Super. Ct. Nov. 4, 2010) (unpublished table decision) ...... 34

Nat’l Audubon Soc’y v. Super. Ct., 658 P.2d 709 (Cal. 1983) ...... 9

In re Nat’l Prescription Opiate Litig., 2019 WL 3737023 (N.D. Ohio June 13, 2019) ...... 25

Ohuche v. Merck & Co., No. 11 Civ. 2385(SAS), 2011 WL 2682133 (S.D.N.Y. July 7, 2011) ...... 21

In re Omya Solid Waste Facility Final Certification, No. 96-6-10VTEC, 2011 WL 1055575 (Vt. Super. Ct. Feb. 28, 2011) ...... 17

In re Opioid Litig., No. 400000/2017, 2018 WL 3115102 (N.Y. Sup. Ct. June 18, 2018) ...... 25

Parillo v. Stryker Corp., No. 15-CV-155, 2015 WL 12748006 (N.D.N.Y. Sept. 29, 2015) ...... 20

Paris v. Lussier, No. 2010–034, 2010 WL 7791942 (Vt. July 16, 2010) ...... 31

Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477 (1998) ...... 10

People v. ConAgra Grocery Prod. Co., 17 Cal. App. 5th 51 (Cal. Ct. App. 2017) ...... 24, 29

Prive v. Vt. Asbestos Grp., 2010 VT 2, 187 Vt. 280, 992 A.2d 1035...... 6

Rhode Island v. Atl. Richfield, 357 F. Supp. 3d 129 (D.R.I. 2018) ...... 28, 31, 32, 34

Rhodes v. E.I. du Pont de Nemours, 657 F. Supp. 2d 751 (S.D. W. Va. 2009) ...... 32

Rhodes v. E.I. du Pont de Nemours, 636 F.3d 88 (4th Cir. 2011) ...... 32

State ex rel. Rice v. Stewart, 184 So. 44 (Miss. 1938) ...... 36

Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236 (2d Cir. 2002) ...... 22

State v. Cent. Vt. Ry., 153 Vt. 337, 571 A.2d 1128 (1989) ...... passim

State v. City of Bowling Green, 313 N.E.2d 409 (Ohio 1974) ...... 9, 15, 16

State v. Exxon Mobil Corp., 126 A.3d 266 (N.H. 2015) ...... 31

State v. Fermenta ASC Corp., 656 N.Y.S.2d 342 (N.Y. App. Div. 1997) ...... 34

State v. Hess Corp., 20 A.3d 212 (N.H. 2011) ...... 14, 15, 30

State v. Howe Cleaners, Inc., 2010 VT 70, 188 Vt. 303, 9 A.3d 276 ...... 23

State v. Lead Industries Association, 951 A.2d 428 (R.I. 2008) ...... 24

State v. Malmquist, 114 Vt. 96, 40 A.2d 534 (1944) ...... 7, 10, 14

State v. Purdue Pharma Inc., No. 217-2017-CV-00402, 2018 WL 4566129 (N.H. Super. Ct. Sept. 18, 2018) ...... 24, 27, 28

State v Purdue Pharma L.P., No. 1-173-18, 2019 WL 2331282 (Tenn. Cir. Ct. Feb. 22, 2019) ...... 25

State v. Purdue Pharma L.P., No. 17 CI 261, 2018 WL 4080052 (Ohio Ct. Com. Pl. Aug. 22, 2018) ...... 25

State v. Purdue Pharma L.P., No. 217-2017-CV-00402, 2018 WL 4468439 (Alaska Super. Ct. July 12, 2018) ...... 24

State v. Purdue Pharma L.P., No. PC-2018-4555, 2019 WL 3991963 (R.I. Super. Ct. Aug. 16, 2019) ...... 24, 28

State v. Purdue Pharma, No. CJ-2017-816, 2019 Okla. Dist. LEXIS 3486 (Okla. Dist. Ct. Aug. 29, 2019) ...... 25, 29

State v. Theriault, 70 Vt. 617, 41 A. 1030 (1898) ...... 7

Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) ...... 32

Sullivan v. Aventis, Inc., No. 14–cv–2939–NSR, 2015 WL 4879112 (S.D.N.Y. Aug. 13, 2015) ...... 20, 21

Sullivan v. Saint-Gobain Perf. Plastics Corp., No. 5:16-cv-125, 2017 WL 3726435 (D. Vt. May 1, 2017) ...... 16, 21

In re Syngenta AG MIR 162 Corn Litig., 131 F. Supp. 3d 1177 (D. Kan. 2015) ...... 34, 35

Tioga Public School District No. 15 v. U.S. Gypsum Co., 984 F.2d 915 (8th Cir. 1993) ...... 25

Towns v. N. Sec. Ins. Co., 2008 VT 98, 184 Vt. 322, 964 A.2d 1150 ...... 38

Trudo v. Meguiar’s, Inc., No. S 1474-01 CnC, 2004 WL 5460801 (Vt. Super. Ct. Dec. 20, 2004)...... 19

Webb v. International Transportation Corp., 166 Vt. 119, 692 A.2d 343 (1996) ...... 18

Willard v. Parsons Hill P’ship, 2005 VT 69, 178 Vt. 300, 882 A.2d 1213 ...... 16

Winslow v. W.L. Gore & Assoc., Inc., No. 10–116, 2011 WL 866184 (W.D. La. Jan. 21, 2011), report and recommendation adopted as modified, 2011 WL 873562 (W.D. La. Mar. 11, 2011) ...... 21

Wool v. Menard, 2018 VT 23, 207 Vt. 25, 185 A.3d 577...... 6

Zaleskie v. Joyce, 133 Vt. 150, 333 A.2d 110 (1975) ...... 18

Statutes

10 V.S.A. § 1390 ...... 7, 14, 17, 38

10 V.S.A. § 1410 ...... 14, 16, 28, 38

10 V.S.A. § 6615d ...... 7, 17

29 V.S.A. § 401 ...... 11, 12

29 V.S.A. § 402(3) ...... 13

Other Authorities

Prosser & Keeton on Torts (5th ed. 1984), § 13 ...... 37

Restatement (Second) of Torts § 158 ...... 32, 33

Restatement (Second) of Torts § 162 ...... 37

Restatement (Second) of Torts § 448-449 ...... 23

Restatement (Second) of Torts § 821B ...... 26, 27

Restatement (Second) of Torts § 821C ...... 27, 28

Restatement (Second) of Torts § 824 ...... 23

Restatement (Second) of Torts § 834 ...... 23

Restatement (Second) of Torts § 840 ...... 23

Restatement (Second) of Trusts § 280 ...... 30, 35

vii

Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries, 16 Penn St. Envtl. L. Rev. 1, 104 (2007) ...... 14

Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines, 34 Vt. L. Rev. 781, 850 (2010) ...... 14

Rule 54(c) ...... 29

Vt. Civil Jury Instructions § 6.10 ...... 19

Vt. Const. ch. II, § 67 ...... 7

V.R.C.P. 8 ...... 19

V.R.C.P. 12(b)(6) ...... 29, 30

V.R.C.P. 15(a) ...... 39

V.R.C.P. 54 ...... 29

Wright & Miller, 10 Fed. Prac. & Proc. Civ. § 2664 (4th ed.) ...... 29

viii

The State of Vermont (the “State”) has sued 3M Company (“3M”) and other

manufacturers of per- and polyfluoroalkyl substances (“PFAS”) for their

contamination of drinking water, groundwater, and other natural resources in

Vermont. PFAS are toxic chemicals that threaten human health at extremely low

levels—in the parts per trillion. 3M does not dispute that the State has properly

alleged a claim for three causes of action: failure to warn, negligence, and violation

of the State’s Groundwater Protection Act. It seeks dismissal of the other five

causes of action: the State’s civil count for natural resource damages, which

includes resource restoration, and its claims for design defect, public nuisance,

private nuisance, and trespass. But courts addressing similar suits by sovereign

states to remedy widespread pollution of state natural resources have allowed such

claims to proceed. 3M’s motion should be denied.

INTRODUCTION 3M developed, manufactured, and promoted PFAS. For decades it hid its internal knowledge of the extraordinary toxicity and permanence of these chemicals, effectively making what its own scientist said was an “unethical” decision to unleash mass contamination by a chemical that is more “insidious” even than PCBs. Compl. ¶ 7. In addition to releases from industrial processes using

PFAS, unwitting consumers bought, used, and threw away products containing

PFAS, which inevitably made their way into drinking water, soil, and rivers and lakes all over Vermont.

To address this widespread contamination, the State has brought this action against 3M and certain DuPont affiliates. 3M has moved to dismiss on four main grounds—all of them unfounded:

First, 3M argues that the State lacks authority to bring a common law claim for damage to natural resources—resources like groundwater that are indisputably held by the State under the public trust doctrine. But 3M’s argument is contrary to substantial authority extending the public trust to natural resources beyond surface waters, and recognizing the State’s duty and right to protect these resources, including by bringing a claim for damages.

Second, on the State’s design defect claim, 3M faults the State for failing to allege the existence of a safer alternative design—yet the State made precisely this allegation, Compl. ¶ 247(k), even though the Restatement (Second) of Torts

(“Restatement”) and 3M’s own cases show there is no such requirement.

Third, on public and private nuisance, 3M does not dispute that PFAS contamination is a public nuisance, but argues that manufacturers cannot be liable for this nuisance, even though they were the ones who made a product that they knew would cause widespread and persistent contamination. Once again, 3M’s proposition contradicts the Restatement (which has no such categorical immunity for manufacturers), as well as the recent opioids decision by this Court and a wave of similar decisions by other courts.

Fourth, 3M argues that chemical contamination is too intangible to constitute a trespass, and that the State does not have enough of an ownership interest in

natural resources to bring trespass claims. But many courts have recognized

trespasses for toxic contamination, which is all too tangible and probably the

greatest recent trespass threat to property. And the State’s status as public trustee

provides it the authority any ordinary owner would have to protect the trust

property from trespasses.

3M’s motion should be denied.

BACKGROUND The State brought this lawsuit to protect and restore State natural resources and State property from widespread contamination and injury by toxic PFAS chemicals. Compl. ¶ 1. 3M and the other defendants are the major chemical companies that manufactured, marketed, distributed, sold, and promoted PFAS and

PFAS-containing products used in Vermont. Id. ¶¶ 4, 18. The State seeks damages

and other relief as trustee of Vermont’s natural resources, in its parens patriae

capacity on behalf of State citizens, and to protect its own interests in property. Id.

¶¶ 10, 15.

I. PFAS are toxic chemicals that pose serious health and environmental risks. PFAS are human-made, synthetic chemicals that are not naturally found in

the environment, are toxic at extremely low levels—in the parts per trillion range—

and were widely used for decades in consumer, household, and other commercial

products, as well as industrial uses. Id. ¶¶ 2, 39, 45. PFAS are known as the

“forever” chemicals because they remain in the environment indefinitely unless they

are cleaned up, at great difficulty and expense. Id. ¶¶ 3, 40, 46, 223. PFAS

3 bioaccumulate in the human body and some PFAS remain in humans for years. Id.

¶¶ 3, 44. Human exposure to PFAS is correlated with many harmful health effects, including cancer and impacts to fetal development, cholesterol levels, and major organ and immune functions. Id. ¶¶ 3, 61-66. The Vermont Department of Health has issued a 20 parts per trillion health advisory for certain PFAS chemicals, the

Vermont Department of Environmental Conservation has issued rules setting the same standard for groundwater and listing certain PFAS as hazardous materials, and the Vermont legislature has called for ongoing PFAS testing in the state. Id.

¶¶ 59-60, 67. The federal government and other states are continuing to lower their health advisories and related standards for PFAS chemicals as more information on the toxicity of these pernicious chemicals becomes known. Id. ¶ 60.

II. 3M manufactured and supplied PFAS and products containing PFAS to Vermont despite knowing of their serious health and environmental risks. 3M manufactured two of the primary types of PFAS. 3M made perfluorooctanoic acid (“PFOA”) from approximately the 1940s until 2002 and was the exclusive manufacturer of perfluorooctanesulfonic acid (“PFOS”) from approximately the 1940s until 2002. Id. ¶ 5. 3M made these PFAS chemicals for use in its own products, including Scotchguard, and for use in products made by third parties. Id. ¶ 71. These products were sold widely in Vermont. Id. ¶ 74. 3M also sold PFAS chemicals to third parties for use in manufacturing, including to customers in Vermont. Id. ¶¶ 75-76.

3M knew for decades that PFAS chemicals were toxic and posed substantial health and environmental risks, but covered up this information and instead

4 promoted PFAS and products containing PFAS as safe and appropriate for widespread use. Id. ¶ 7. For example:

 Based on its own internal studies, 3M knew that PFOA and PFOS were harmful to humans and the environment as early as 1950. Id. ¶ 87.

 3M knew at least as early as 1960 that PFAS could leach from dumps into groundwater and pollute drinking water wells. Id. ¶ 88.

 By the early 1960s, 3M understood that some PFAS do not break down in the environment. Id. ¶ 89.

 A 1963 3M report described PFAS as “toxic.” Id. ¶ 93.

 In 1979, a 3M internal document stated that PFOA and PFOS “are known to persist for a long time in the body and thereby give long term chronic exposure.” Id. ¶ 102.

 In 1999 a 3M environmental scientist said that PFOS is “the most insidious pollutant” since polychlorinated biphenyls (PCBs), and that PFOS is “probably more damaging” than PCBs because it does not degrade and is “more toxic to wildlife.” The 3M scientist went on to decry 3M’s “unethical” decision to prioritize “markets, legal defensibility and image over environmental safety.” Id. ¶ 7.

In response to pressure from the United States Environmental Protection

Agency, 3M began to phase out production of PFOS and PFOA products in 2000, but issued a press release asserting, falsely, that “our products are safe.” Id. ¶¶ 113-

114. Despite the large body of research demonstrating the serious health effects correlated with PFAS, as recently as November 2018, 3M stated that “the vast body of scientific evidence does not show that PFOS or PFOA cause adverse health effects in humans at current exposure levels, or even at the historically higher levels found in blood.” Id. ¶ 118.

III. PFAS have contaminated many State natural resources and properties. PFAS have contaminated Vermont drinking water, groundwater, surface

water, wildlife, soil, and sediment. Id. ¶¶ 8, 182, 193-195, 202-203, 208, 211. For

example, defendants’ PFAS has caused groundwater contamination in at least 19

Vermont communities, id. ¶ 193(a)-(u), and drinking water contamination in at

least 8 communities. Id. ¶ 194(a)-(h); see also id. ¶ 202(a)-(g) (surface waters);

¶ 208(a)-(d) (soils and sediments); ¶ 211 (fish). The State’s investigation is continuing, and it continues to discover additional PFAS contamination. Id. ¶¶ 52,

55-56, 196, 204, 209, 215, 217.

STANDARD OF REVIEW The Vermont Supreme Court has repeatedly held that “[m]otions to dismiss

for failure to state a claim are disfavored and should be rarely granted.” Wool v.

Menard, 2018 VT 23, ¶ 6, 207 Vt. 25, 185 A.3d 577 (quotation omitted); Colby v.

Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1, 955 A.2d 1082 (same); see also Prive v.

Vt. Asbestos Grp., 2010 VT 2, ¶ 14, 187 Vt. 280, 992 A.2d 1035 (holding that plaintiffs face “exceedingly low threshold” on a motion to dismiss) (quotation marks

omitted). A court “should not grant a motion to dismiss for failure to state a claim

unless it appears beyond doubt that there exist no facts or circumstances that would

entitle the plaintiff to relief.” Wool, 2018 VT 23, ¶ 6 (quotation marks omitted).

The Court assumes that all factual allegations pleaded in the complaint are true,

and accepts as true all reasonable inferences from those allegations. Mahoney v.

Tara, LLC, 2011 VT 3, ¶ 7, 189 Vt. 557, 15 A.3d 122.

ARGUMENT I. The State’s natural resource damages and restoration claim encompasses all PFAS-contaminated natural resources. Vermont law declares that lakes, ponds, water bottoms, groundwater, and

wildlife in Vermont are held in trust by the State for the benefit of all the citizens of

Vermont. See Vt. Const. ch. II, § 67 (surface waters, wildlife); 10 V.S.A. § 1390(5)

(groundwater); State v. Malmquist, 114 Vt. 96, 102, 40 A.2d 534, 538 (1944) (fish);

State v. Theriault, 70 Vt. 617, 41 A. 1030, 1032 (1898) (wildlife); 10 V.S.A.

§ 6615d(a)(8) (“‘Natural resources’ means fish, wildlife, biota, air, surface water,

groundwater, wetlands, drinking water supplies, or State-held public lands.”). The

basic concept is referred to as the public trust doctrine, which has been a part of the

common law for centuries. See Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452-64

(1892) (finding that the grant of submerged land to private party violated the public

trust doctrine); Martin v. Waddell’s Lessee, 41 U.S. 367, 410-11 (1842) (discussing

public trust in oyster beds).

Under the doctrine as it has developed over the years, the State has not just

the right but the duty to protect public trust resources from threats by private

actors, so as to meet “changing conditions and [the] needs of the public.” State v.

Cent. Vt. Ry., 153 Vt. 337, 342, 571 A.2d 1128 (1989) (quotation marks omitted); see also Malmquist, 114 Vt. at 102 (“[T]he State has not only the right but the duty” to protect fish and other wild animals as the “common property of the public.”).1

1 Accord Ill. Cent., 146 U.S. at 452 (states have public trust duties); cf. Cent. Vt. Ry., 153 Vt. at 346, 571 A.2d at 1132 (relying on Illinois Central as “landmark” case). 7

But according to 3M, the State’s cause of action for natural resource damages

(“NRD”) should be dismissed because the public trust doctrine does not actually protect any of these resources from pollution. 3M acknowledges the State is entitled to bring a public trust claim if the claim is based on physical encroachments of navigable surface waters—a limit that supposedly excludes claims for damage to surface waters caused by a toxic chemical. 3M Br. at 4. And 3M goes on to argue that the State cannot bring an NRD claim for any injury to groundwater, wildlife and other biota, and state-owned lands—proposing an arbitrary restriction that has been rejected by Vermont courts and other authorities. It has been rejected for good reason: the threat to public health and property from toxic contamination (e.g., of drinking water) is arguably much more significant than the threat posed to navigation by physical encroachments.

In this section, the State shows that (A) its authority to protect surface water includes threats posed by PFAS contamination (i.e., is not limited to threats posed to navigation by physical structures, as 3M argues); and (B) the State also has public trust authority to protect groundwater, wildlife, and other resources from

PFAS contamination, including the authority to bring an NRD claim.

A. The State may bring an NRD claim to protect surface waters against toxic chemical pollution. Vermont’s NRD claim with respect to surface waters is not limited to remedying physical encroachments to navigation. The public trust doctrine in

Vermont “is not fixed or static but one to be molded and extended to meet changing conditions and needs of the public it was created to benefit,” and the “purposes of

the public trust have evolved in tandem with the changing public perception of the

values and uses of waterways” and other trust resources. Cent. Vt. Ry., 153 Vt. at

342, 571 A.2d at 1130 (quotation marks omitted). Public trust resources such as navigable waters and the land beneath them “are held for the public uses for which they are adapted.” City of Montpelier v. Barnett, 2012 VT 32, ¶ 18, 191 Vt. 441, 49

A.3d 120 (quotation marks omitted). The “traditional triad of uses—navigation, commerce and fishing—did not limit the public interest in the trust res.” Nat’l

Audubon Soc’y v. Super. Ct., 658 P.2d 709, 719 (Cal. 1983) (en banc); see also

Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 55 (N.J. 1972)

(“[S]tates have readily extended the [public trust] doctrine, beyond the original purposes of navigation and fishing, to cover other public uses.”).2

Instead, since at least the 1980s there has been a “growing public recognition that one of the most important public uses” of trust resources is the “preservation of those lands in their natural state.” Nat’l Audubon Soc’y, 658 P.2d at 719. And more specifically, multiple courts have sustained common law NRD claims to remedy pollution of surface waters, which is now a well-established part of the doctrine.3

2 The Central Vermont court cited both of these California cases with approval. 153 Vt. at 342.

3 See Maryland v. Amerada Hess Corp., 350 F. Supp. 1060, 1067 (D. Md. 1972) (oil contamination of Baltimore harbor); State v. Monsanto Co., No. A1801237, at 5-6 (Ohio Comm. Pl. Sept. 18, 2018) (PCB pollution of surface waters and other resources) (attached as Exh. A); State v. City of Bowling Green, 313 N.E.2d 409, 411 (Ohio 1974) (sewage pollution of river resulting in fish kill).

3M points to a handful of cases where the public trust was invoked against encroachments on surface water, arguing that these cases somehow establish a limitation on the doctrine. Yet none of these cases holds that the public trust doctrine should be limited to physical encroachments.4 If anything, 3M’s cases demonstrate that the State may protect uses and values of these resources beyond navigation and threats beyond encroachment. 3M Br. at 3-4. For example:

 In Central Vermont Railway, the court held that lands submerged under navigable waters should be protected from “obstruction or interference of private parties.” 153 Vt. at 341, 571 A.2d at 1130 (emphasis added and quotation omitted). Contamination of surface waters with toxic chemicals constitutes a clear example of such “interference.”

 In Barnett, the court recognized that navigable waters and the land beneath them “are held for the public uses for which they are adapted,” which again suggests a broad power to protect against threats to all such uses; Barnett itself was about protecting drinking water from contamination caused by uses of a reservoir. 2012 VT 32, ¶¶ 18, 20.

 In Malmquist, the court expressly recognized that “navigation of the lake” is “only one of the public rights involved; the other is in the common property in the fish, which it is the duty of the State to safeguard.” 114 Vt. at 106, 40

4 Specifically, 3M cites five Vermont cases on the public trust doctrine. 3M Br. at 3-4. Two of them merely held that municipalities, individuals, and labor unions lack authority to assert the State’s public trust powers. Barnett, 2012 VT 32, ¶ 64 (in controversy over boating, fishing, and swimming in drinking water reservoir, city lacked authority to assert State’s public trust powers); Parker v. Town of Milton, 169 Vt. 74, 79, 726 A.2d 477 (1998) (in controversy over construction of a bridge across a lake, individuals and labor unions lacked authority to assert State’s public trust powers). The other three limit the power of private parties to control public trust resources—i.e., restricting alienation of filled-in land on Lake Champlain in Central Vermont Railway, 153 Vt. at 348-50, 571 A.2d at 1333-34, or forbidding the private control of water levels in lakes in Hazen v. Perkins, 92 Vt. 414, 419, 105 A. 249 (1918), and Malmquist, 114 Vt. at 106, 40 A.2d at 540. None of these cases considered (let alone accepted) the remarkable proposition that the State is powerless to protect surface waters or other public trust resources from pollution. 3M relies (Br. at 3) on a statement in Parker that “[t]he purpose of the [public trust] doctrine is to preserve the public’s interest in Vermont’s navigable waterways,” Parker, 169 Vt. at 79, 726 A.2d at 481, but this is merely a reference to the type of waterways that are subject to the public trust (“navigable”), and was made to reject an argument about private party standing that is irrelevant here. 10

A.2d at 540; see also Hazen, 92 Vt. 414, 105 A. at 251 (“The bed or soil of such boatable lakes in this State is held by the people in their character as sovereign in trust for public uses for which they are adopted.”) (emphasis added).

In short, 3M’s cases do not contradict (and often support) the basic

proposition laid down in Central Vermont Railway, which is that the public trust

doctrine is “to be molded and extended to meet changing conditions and needs of the

public it was created to benefit.” 153 Vt. at 342, 571 A.2d at 1130 (quotation marks

omitted). Because of the clear support in Vermont law to “mold and extend” the

doctrine to protect the public’s interest in natural resources, it seems inescapable

that Vermont courts would follow other courts in recognizing the State’s authority

to protect surface waters from a clear and obvious threat like toxic pollution.

Limiting the State’s ability to protect natural resources in the manner suggested by

3M would render the State unable to fulfill its obligations to the citizens of

Vermont.

3M’s final argument on surface water pollution relies on a misreading of 29

V.S.A. § 401, the statute that establishes the permitting program for activities (e.g., construction) encroaching on surface waters. The statute says:

Lakes and ponds which are public waters of Vermont and the lands lying thereunder are a public trust, and it is the policy of the State that these waters and lands shall be managed to serve the public good, as defined by section 405 of this title, to the extent authorized by statute. For the purposes of this chapter, the exercise of this management shall be limited to encroachments subject to section 403 of this title.

3M says the policy to “manage[ ]” these waters “to serve the public good . . . to the extent authorized by statute” is a limit on the State’s public trust authority. 3M

goes on to argue that this limit on the public trust doctrine forbids use of the doctrine for any purpose other than the regulation of physical structures that is described in the rest of the statutory scheme. 3M Br. at 4.

3M misunderstands the statute. The statute pointedly does not say the public trust doctrine exists only to the extent authorized by statute. Instead, the first clause of the first sentence says public waters are protected by the public trust doctrine (“[l]akes and ponds . . . are a public trust”), and the second clause says the

State must “manage” these waters as “authorized by statute.” And given that the rest of the statute describes a permitting program, the only “management” limited by the statute is the State’s power to authorize the construction or other encroachments on surface waters. Put differently, section 401 does no more than state that, because surface waters are a public trust resource, any construction or other encroachment on surface waters must be authorized by the permits issued pursuant to the statutory scheme, or must be authorized by some other statute.5

The statutory authorization requirement helps protect public trust resources, and not (as 3M would have it) the reverse.

This understanding of the statute is consistent with its plain language,6 and also with cases like Barnett, Central Vermont Railway, Hazen, and Malmquist—all

5 Further, the “limited to encroachments” language in section 401 is, expressly, only a limitation on the State’s authority with respect to that particular statute. See 29 V.S.A. § 401 (“for purposes of this chapter”).

6 See In re Hodgdon, 2011 VT 19, ¶ 7, 189 Vt. 265, 19 A.3d 598 (“[w]hen the plain language is clear and unambiguous, our inquiry is at an end, and we enforce the [provision] according to its terms”) (quotation marks and brackets omitted).

12 of which invoked the public trust doctrine in controversies unrelated to new construction on surface waters, and without taking notice of section 401. This reading is also, at a minimum, a “reasonably possible” interpretation of a statute necessary to avoid a harsh alternative reading. Barnett, 2012 VT 32, ¶ 19

(quotation marks omitted). 3M’s alternative is harsh indeed: based on a passing reference in section 401, 3M would impose an arbitrary limit on the State’s public trust authority, effectively replacing an ancient common law doctrine with a statutory scheme for issuing construction permits. The public trust doctrine is not controlled by the permit scheme described in section 401; 3M’s reading should be rejected.7

In short, the State may plead an NRD claim encompassing surface waters against toxic chemical pollution and has properly done so here.

B. The State may bring an NRD claim to protect groundwater and other natural resources. 3M concedes that the Legislature has “designated groundwater as a public trust resource.” 3M Br. at 5. It nonetheless argues that the State may not pursue an NRD claim to protect groundwater and wildlife because Vermont courts have not recognized such a claim, and because any public trust cause of action for

7 Even if the State’s public trust authority to protect surface water was limited to the prevention of the encroachments described in section 401, the definition of “encroach” is broad enough to encompass PFAS pollution. To encroach is defined to mean “to place or cause to be placed any material or structure in any lakes and ponds which are public waters or to alter, or cause to be altered, the lands underlying any waters,” among other things. 29 V.S.A. § 402(3) (emphasis added). PFAS pollution is “material” in surface waters, and it also “alters” (i.e., contaminates) the underlying land (i.e., sediment). 13

groundwater has been displaced by 10 V.S.A. § 1410. Id. at 4-5. The Court should reject this argument.

First, there is significant authority supporting a common law public trust claim over all of the State’s natural resources. More specifically and as noted above, there is clear authority that public trust resources extend beyond surface waters.

See supra at 7.

Second, the existence of the duty to protect these resources inherently includes a cause of action to effectuate this duty: the “state’s power to supervise trust property in perpetuity is coupled with the ineluctable duty to exercise this power.” Cent. Vt. Ry., 153 Vt. at 346, 571 A.2d at 1132.8 Absent the ability to

pursue damages against a tortfeasor to compensate for a degraded natural resource,

the power of trusteeship and the duty to protect the res of the trust would be vastly

undercut. Thus, not surprisingly, many courts have recognized a public trust claim

for injuries to these resources. See Maryland, 350 F. Supp. at 1067 (rejecting

argument that state had “no common law civil remedy for damage to the condition and quality of the water”: “The conclusion seems inescapable to this Court, that if

8 Accord 10 V.S.A. § 1390(3) (“State shall protect its groundwater resources to maintain high-quality drinking water”); Malmquist, 114 Vt. at 102, 40 A.2d at 538 (“State has not only the right but the duty to preserve and increase the supply of fish, which, being ferae naturae, are the common property of the public”); State v. Hess Corp., 20 A.3d 212, 217 (N.H. 2011) (“[a]s trustee, the State must preserve the State’s waters for the trust’s beneficiaries”); Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines, 34 Vt. L. Rev. 781, 850 (2010) (“the Vermont public trust doctrine provides the state and citizens with a cause of action”); Robin Kundis Craig, A Comparative Guide to the Eastern Public Trust Doctrines: Classifications of States, Property Rights, and State Summaries, 16 Penn St. Envtl. L. Rev. 1, 104 (2007) (same).

14 the State is deemed to be the trustee of the waters, then, as trustee, the State must be empowered to bring suit to protect the corpus of the trust—i.e., the waters—for the beneficiaries of the trust—i.e., the public.”); Monsanto, No. A1801237, at 5-6

(Exh. A) (denying motion to dismiss public trust claim); Bowling Green, 313 N.E.2d at 411 (“We conclude that where the state is deemed to be the trustee of property for the benefit of the public it has the obligation to bring suit not only to protect the corpus of the trust property but also to recoup the public’s loss occasioned by the negligent acts of those who damage such property”).

Most notably, the New Hampshire Supreme Court recognized the public trust doctrine as its own cause of action in a case by the state against gasoline manufacturers and suppliers for contamination of groundwater, drinking water, and soil with the fuel additive MTBE. “The doctrine allows a state attorney general, as trustee, to bring a cause of action for damages to natural resources held in trust by the State.” See Hess Corp., 20 A.3d at 216 (quotation marks and citation omitted).9 These cases are also consistent with the rule (described above) from

Central Vermont Railway, that the law of public trust is evolving and flexible. In

9 Similar to Vermont, the State of New Hampshire has filed a complaint against 3M and other manufacturers of PFAS chemicals for the contamination of natural resources in that state. See Complaint, State of New Hampshire v. 3M Co., No. 216-2019-cv-00445 (N.H. Super. Ct. filed May 29, 2019), https://www.courts.state.nh.us/caseinfo/pdf/civil/3M- Chemours/3M-Chemours-Complaint.pdf. New Hampshire pleaded a public trust doctrine claim, id. ¶¶ 226-229, which 3M has not moved to dismiss. See Mem. of Def. 3M Company in Supp. of its Mot. to Dismiss, State of New Hampshire v. 3M Co., No. 216-2019-cv-00445 (N.H. Super. Ct. filed Oct. 16, 2019).

short, there is significant authority supporting the State’s common law claim to

protect its natural resources.

Third, section 1410 does not displace other groundwater remedies. The rule

3M relies on is a rule against implying self-executing remedies from a constitutional

provision where a statutory remedy based on the constitution is available. 3M Br.

at 5 n.2. It does not stand for the proposition that statutory remedies displace pre-

existing common law remedies. Using a statute to displace a pre-existing common law remedy is disfavored. See Willard v. Parsons Hill P’ship, 2005 VT 69, ¶ 26, 178

Vt. 300, 882 A.2d 1213 (declining to use statute to displace common law remedy absent evidence of legislative intent); Bowling Green, 313 N.E.2d at 411 (public trust claim is an “essential part” of the common law doctrine). To the extent there ever was or could be some basis to displace a common law remedy with a statute, the Legislature has affirmatively rejected that proposition in this instance. The

Legislature has done so both in section 1410 itself (i.e., the very section 3M relies on to preclude a common-law cause of action), and in other statutes. Section 1410 states: “Nothing in this section shall be construed to preclude or supplant any other statutory or common-law remedies.” 10 V.S.A. § 1410(f); see also Sullivan v. Saint-

Gobain Perf. Plastics Corp., No. 5:16-cv-125, 2017 WL 3726435, at *4 (D. Vt. May 1,

2017) (“the Groundwater Protection Act . . . specifically recognizes existing causes of action”).

Similar language appears in the statute authorizing the State to recover

NRD for injuries to public resources caused by releases of hazardous materials. See

10 V.S.A. § 6615d(e) (“[N]atural resource damages authorized under this section . . .

shall not limit the authority of the Secretary of Natural Resources to seek or recover

natural resource damages under other State law, federal law, or common law”); id.

§ 6615(f) (“The remedies in this chapter are in addition to those provided by existing statutory or common law.”). Both statutes thus assume the pre-existence of a common law NRD claim, and both affirmatively state the Legislature’s intention to leave that claim undisturbed by the statutory provisions. Moreover, section 1390(5) states that the designation of groundwater as a public trust resource does not create a new right of action for any person “other than the State of Vermont.” 10 V.S.A.

§ 1390(5). This language “reserves to the state the authority to enforce the policies of § 1390 on behalf of the state’s citizens in general” and places “no . . . restriction on the state’s authority to enforce the public trust in groundwater established in

§ 1390(5).” In re Omya Solid Waste Facility Final Certification, No. 96-6-10VTEC,

2011 WL 1055575 (Vt. Super. Ct. Feb. 28, 2011).

In sum, the authorities above strongly support a common law cause of action

for injuries to groundwater and other public trust resources. And the specific

statute that 3M claims displaces this common law remedy affirmatively disclaims

that it has this effect. 3M’s argument should be rejected.10

II. The State properly pled a design defect claim. 3M moves to dismiss the State’s design defect claim on only one ground—that

the State did not comply with the notice pleading standard because it was required

10 The State can also pursue natural resource damages under its other claims.

to specifically identify an alternative design in its Complaint. 3M Br. at 5-6.11 3M

misstates the elements of a design defect claim under Vermont law, which does not

require the State to prove—much less allege—an alternative design. But, even

assuming the State must plead an alternative design, the State’s Complaint

properly alleges one under Vermont’s liberal notice pleading standard.

As an initial matter, 3M does not cite any case in which the Vermont

Supreme Court has held that a plaintiff must plead an alternative design, and the

very cases cited by 3M contradict its argument. In 1975, the Vermont Supreme

Court adopted strict product liability as set forth in the Restatement (Second) of

Torts § 402A. Zaleskie v. Joyce, 133 Vt. 150, 155, 333 A.2d 110 (1975). The court

imposed no requirement of proving an alternative design. Rather, a manufacturer

is liable for design defect if the product is in a “defective condition unreasonably

dangerous to the user or consumer or to his property,” the seller is in the business of

selling the product, and it reaches the user or consumer in the same condition in

which it is sold. Id. at 154, 333 A.2d at 113.

Over twenty years later, in 3M’s lead case, Webb v. Navistar International

Transportation Corp., the Vermont Supreme Court reiterated that a “manufacturer

is strictly liable for physical harm or property damages resulting from a defective

product that reaches a user without undergoing substantial change.” 166 Vt. 119,

126, 692 A.2d 343 (1996). The words “alternative design” do not appear in Webb nor in Zaleskie. More recent cases applying Vermont law also do not require an

11 3M’s co-defendants did not move to dismiss the design defect claim on this basis. 18

alternative design. Halsey v. Smith & Nephew, Inc., No. 5:12–cv–171, 2014 WL

12717702, at *8 n.5 (D. Vt. Feb. 4, 2014); see also Vermont Civil Jury Instructions

§ 6.10 (design defect: factfinder “may consider” the “availability of a feasible alternative design” but “can decide which factors apply and the importance of each”). Thus, while a plaintiff may offer evidence of an alternative design, it is not

required.

3M’s other cases contradict its position, are unpersuasive, or are not on point.

In Manning v. Goodyear Tire & Rubber Co., the court addressed the adoption of a reasonable alternative design standard but then stated that the “Vermont Supreme

Court has considered this view but has not necessarily adopted it.” No. S1087-03

CnC, 2005 WL 5895181, at n.6 (Vt. Super. Ct. July 20, 2005). In Heco v. Midstate

Dodge LLC, after holding that Vermont follows § 402A, the court stated without analysis that there is an alternative design requirement, but this issue was not litigated since the summary judgment motion was “based solely upon [defendant’s] status as a component part manufacturer.” No. S08692010, 2013 WL 6978697, at

*1, *4 (Vt. Super. Ct. Mar. 14, 2013). Other cases cited by 3M do not address a design defect claim at all. See Trudo v. Meguiar’s, Inc., No. S 1474-01 CnC, 2004

WL 5460801 (Vt. Super. Ct. Dec. 20, 2004) (“This is a product liability case about a manufacturer’s duty to warn.”). Vermont does not require an allegation of an alternative design.

But, even assuming the State is required to allege an alternative design, it

properly did so under Vermont’s liberal notice pleading standard. V.R.C.P. 8(a),

(e)(1) (complaint shall contain “a short and plain statement of the claim showing

that the pleader is entitled to relief” with “simple, concise, and direct” allegations).

The “complaint is a bare bones statement that merely provides the defendant with

notice of the claims against it” that is meant to “strike a fair balance, at the early stages of litigation, between encouraging valid, but as yet underdeveloped, causes of action and discouraging baseless or legally insufficient ones.” Colby, 2008 VT 20,

¶ 13; cf. Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 208 A.3d

609 (purpose of a dismissal motion “is to test the law of the claim, not the facts

which support it”) (quotation marks omitted).

As relevant to a design defect claim, the State alleged in its Complaint that

“[s]afer alternatives to PFOS, PFOA, PFNA, PFHxS, and/or PFHpA have existed

and been available to Defendants at all times relevant to this litigation.” Compl.

¶ 247(k); see also id. ¶¶ 33, 145 (alleging “availability of reasonable alternatives”).

3M demands allegations of a specific, alternative design but fails to cite a single

case where a court dismissed a design defect claim because the Complaint did not

allege sufficiently detailed facts about an alternative design. Instead, courts

routinely deny motions to dismiss design defect claims that do not identify a specific

alternative design in the complaint, even in jurisdictions like New York that require

proof of an alternative design. Parillo v. Stryker Corp., No. 15-CV-155 (BKS/RFT),

2015 WL 12748006, at *6 (N.D.N.Y. Sept. 29, 2015) (“Plaintiff may state a claim

without alleging a specific design defect or an alternative, safer design”); Sullivan v.

Aventis, Inc., No. 14–cv–2939–NSR, 2015 WL 4879112, at *7 (S.D.N.Y. Aug. 13,

2015); Ohuche v. Merck & Co., No. 11 Civ. 2385(SAS), 2011 WL 2682133, at *2

(S.D.N.Y. July 7, 2011) (“defendant’s argument directly contravenes the notice pleading requirement of Federal Rule of Civil Procedure 8”).

In Sullivan, plaintiff alleged—similar to the State here—that “safer alternative designs” existed and the court rejected a heightened pleading standard:

“Imposing such a standard would require the plaintiff to possess technical or scientific knowledge about the inner workings of the product, which would contravene the notice pleading requirement of Federal Rule of Civil Procedure 8, even under the Iqbal–Twombly standard.” 2015 WL 4879112, at *7 (quotation marks omitted). The details of a particular alternative design are a subject for discovery, not a ground for dismissal. Id.; see also Winslow v. W.L. Gore & Assoc.,

Inc., No. 10–116, 2011 WL 866184, at *2 (W.D. La. Jan. 21, 2011) (denying motion

to dismiss: “likely impossible for plaintiff to state more specific allegations regarding defects in manufacture and design without first having the benefit of discovery and of expert analysis”), report and recommendation adopted as modified,

2011 WL 873562 (W.D. La. Mar. 11, 2011).

3M primarily relies upon a case brought by a pro se plaintiff in which the court on summary judgment held that the plaintiff “offers no competent evidence of a reasonable alternative design.” Michael v. General Motors Co., No. 15 Civ. 3659

(CM), 2018 WL 6332883, at *11-12 (S.D.N.Y. 2018), aff’d No. 18-3658-CV, 2019 WL

5561211 (2d Cir. Oct. 29, 2019). Evidentiary burdens are not at issue on a motion to

dismiss. The other cases cited by 3M actually support the State’s position.12

III. The State has pleaded nuisance claims. A. Vermont law does not impose a “control” requirement. 3M argues that nuisance liability can be imposed only on those who “control the instrumentality” causing the nuisance. See 3M Br. at 8-9. According to 3M,

nuisances can be caused, for example, by the municipal landfills who last controlled

PFAS that was disposed of there—but not by companies like 3M that created and

marketed these toxic chemicals. 3M is mistaken.

First, this Court already has rejected the proposition that nuisance claims

“cannot be brought against manufacturers.” See State v. Purdue Pharma, No. 757-

9-18, at 5 (Vt. Super. Ct. Mar. 19, 2019) (attached as Exh. B). Purdue Pharma

rejected a motion to dismiss by opioid manufacturers. 3M does not cite this

decision, but it is directly on point.

12 See Kwon v. Edson, 2019 VT 59, ¶ 29, __ A.3d __ (rejecting challenge to a pleading’s specificity after a trial, and recognizing that a pleading simply must provide “fair notice of the claim and the grounds upon which it rests”) (quotation omitted); Colby, 2008 VT 20, ¶¶ 7, 9 (reversing dismissal, and holding that “at the pleading stage, plaintiff was merely required to give notice to defendants of the claims against them”) (quotation omitted). 3M’s other cases are similarly unavailing. See Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 241 (2d Cir. 2002) (reversing dismissal where plaintiff’s complaint tracked statutory language for ERISA claim); Aranoff v. Bryan, 153 Vt. 59, 63-64, 569 A.2d 466 (1989) (petition “presents no basis for [plaintiff’s] assertion” that “all the sitting judges” in Vermont are proper defendants for purported attempts to restrain personal and political beliefs).

Second, as 3M acknowledges, the Vermont Supreme Court has followed the

analysis of nuisance law in the Restatement (Second) of Torts,13 and the

Restatement has no control requirement. Instead the Restatement authorizes

liability under a broad causation standard that imposes liability on anyone who

“participates to a substantial extent in carrying” on an activity that causes a

nuisance. Restatement § 834.14 This is a practical limit that will in some cases

protect manufacturers from nuisance liability—but not in cases like this one, where

3M (according to one of its own scientists) made the “unethical” decision to produce

and market an “insidious” and “toxic” pollutant that it knew posed substantial

health and environmental risks. Compl. ¶ 7 (quoting the 3M scientist). Further,

courts that have applied the Restatement have rejected attempts to add a “control”

requirement to the Restatement test. See In re MTBE, 725 F.3d 65, 121-23 n.43 (2d

Cir. 2013) (New York City MTBE case); Ileto v. Glock Inc., 349 F.3d 1191, 1209-13

(9th Cir. 2003) (guns).

13 See 3M Br. at 7 (acknowledging Restatement); State v. Howe Cleaners, Inc., 2010 VT 70, ¶ 49, 188 Vt. 303, 9 A.3d 276 (following Restatement’s analysis of nuisance).

14 See also id. § 824 cmt. b (act causing a nuisance “may be an indirect cause” of the nuisance). This “substantial participation” test is a version of the Restatement’s more general rules on legal causation in negligence cases. Id. cmt. d. These general causation rules are also clear that intervening acts by third parties (such as acts related to the use and disposal of 3M’s PFAS products by consumers and landfill operators) do not break the causal chain. See Restatement §§ 448, 449. The Restatement also says that even “slight” contributions to a nuisance can be enough to impose liability. Restatement § 840E cmt. b.

Third, the other authorities 3M relies on are older, against the recent

national trend, and/or inconsistent with more recent decisions in the same jurisdiction:

 3M relies on a gun case from 2001, Camden County Board v. Beretta, 273 F.3d 536, 541 (3d Cir. 2001), and a Rhode Island lead paint case from 2008, State v. Lead Industries Association, 951 A.2d 428 (R.I. 2008). But there are recent cases involving guns and lead paint that go the other way.15 And a more recent Rhode Island decision in opioids refused to dismiss claims against manufacturers, notwithstanding the earlier lead paint decision.16

 3M also relies on New Hampshire and Alaska decisions (3M Br. at 9)—but here again, more recent New Hampshire and Alaska decisions have denied motions to dismiss public nuisance claims against product manufacturers.17

 3M relies on an MTBE decision under Pennsylvania law, 3M Br. at 9, but fails to acknowledge another decision going the other way by the same judge—a decision that (unlike the case cited by 3M) was decided under Vermont law. In re MTBE, 379 F. Supp. 2d 348, 441 (S.D.N.Y. 2005).

 Perhaps most importantly, 3M fails to acknowledge the many other PCB and opioid cases that authorize nuisance claims against manufacturers—even though these products are now at the forefront of the law regarding manufacturer liability in nuisance.18 These rulings are in sharp contrast to

15 See, e.g., Ileto, 349 F.3d at 1209-13; People v. ConAgra Grocery Prod. Co., 17 Cal. App. 5th 51, 116 (Cal. Ct. App. 2017) (affirming large nuisance judgment against lead paint companies); County of Santa Clara v. Atlantic Richfield, 137 Cal. App. 4th 292, 310 (2006) (“We do not believe that the fact that defendants were manufacturers and distributors of lead means that they may not be held liable for their intentional promotion of the use of lead paint”).

16 State v. Purdue Pharma L.P., No. PC-2018-4555, 2019 WL 3991963, at *11 (R.I. Super. Ct. Aug. 16, 2019).

17 State v. Purdue Pharma Inc., No. 217-2017-CV-00402, 2018 WL 4566129, at *14 (N.H. Super. Ct. Sept. 18, 2018); State v. Purdue Pharma L.P., No. 217-2017-CV-00402, 2018 WL 4468439, at *4 (Alaska Super. Ct. July 12, 2018).

18 For PCB cases, see, e.g., City of Seattle v. Monsanto Co., 237 F. Supp. 3d 1096, 1101, 1107 (W.D. Wash. 2017); City of San Jose v. Monsanto Co., 231 F. Supp. 3d 357, 365 (N.D. Cal. 2017); City of San Diego v. Monsanto Co., No. 15cv578-WQH-AGS, 2017 WL 5632052, at *7 (S.D. Cal. Nov. 22, 2017); City of Spokane v. Monsanto Co., No. 2:15-CV-00201-SMJ, 2016 WL 6275164, at *9 (E.D. Wash. Oct. 26, 2016); State v. Monsanto Co., No. 18-CV-00540, at 24

some of the older gun and asbestos cases 3M relies on, such as Tioga Public School District No. 15 v. U.S. Gypsum Co., 984 F.2d 915 (8th Cir. 1993). In fact, at least one of these cases has been tried based solely on public nuisance, and a $572 million judgment was entered against the product sellers and in favor of the State of Oklahoma. See State v. Purdue Pharma, No. CJ-2017-816, 2019 Okla. Dist. LEXIS 3486 (Okla. Dist. Ct. Aug. 29, 2019).

 The only Vermont case potentially supporting 3M’s position is the MTBE case, State v. Atlantic Richfield. But as this Court has pointed out, Atlantic Richfield was an unusual case, where the nuisance claim would have revived certain claims that would otherwise have been untimely by decades. This concern over staleness drove the analysis in Atlantic Richfield, but it is not present in this case, just as it was not present in Purdue Pharma, where this Court concluded that it “does not find [Atlantic Richfield] to be useful here.” See Purdue Pharma, at 5. The same conclusion is appropriate here.

In short, the most recent decisions are trending firmly against 3M’s “control of the instrumentality” rule, in Vermont and many other jurisdictions (Alaska,

California, Kentucky, New Hampshire, New York, Ohio, Oregon, Rhode Island,

Tennessee, and Washington).

Fourth and finally, generally applicable tort principles support making manufacturers liable in nuisance, particularly in cases like this one. There are clear instances where the true author of a massive public harm (such as PFAS

13 (Or. Multnomah Co. Circuit Ct. Jan. 9, 2019) (attached as Exh. C); Monsanto Co., No. A18-01237, at 6-7 (Exh. A). For opioid cases, the court handling the federal multi-district litigation has recently rejected the proposition that manufacturers cannot be liable for a public nuisance. See In re Nat’l Prescription Opiate Litig., 2019 WL 3737023, at *10 (N.D. Ohio June 13, 2019). In addition, over the last 18 months any number of state courts have rejected motions to dismiss public nuisance claims again opioid manufacturers and distributors. See In re Opioid Litig., No. 400000/2017, 2018 WL 3115102, at *22 (N.Y. Sup. Ct. June 18, 2018); State v Purdue Pharma L.P., No. 1-173-18, 2019 WL 2331282, at *6 (Tenn. Cir. Ct. Feb. 22, 2019); State v. Purdue Pharma L.P., No. 17 CI 261, 2018 WL 4080052, at *4 (Ohio Ct. Com. Pl. Aug. 22, 2018); Com. v. Endo Health Sols. Inc., No. 17-CI- 1147, 2018 WL 3635765, at *6 (Ky. Cir. Ct. July 10, 2018).

contamination or the opioid epidemic) is the product manufacturer, and not the

diffuse group of people who disposed of the chemical or prescribed the drugs without knowing what the manufacturer knew about the harm certain to follow. This is the case with 3M, which stands accused by its own employees of making an “unethical” decision to promote an “insidious” and “toxic” pollutant comparable to PCBs, without telling people that the chemical was bound to contaminate the environment. Compl. ¶¶ 7, 111. Nuisance liability is uniquely well suited to holding 3M and other wrongdoers accountable because of nuisance’s traditional role as a remedy for state and local governments to address widespread harms to the public. To create a rule immunizing manufacturers from nuisance liability serves

no purpose beyond protecting outrageous conduct from one of the law’s most

appropriate remedies.

B. Nuisance liability is not limited to harms from the use of land. 3M’s next argument is that nuisance liability must be caused by the

defendant’s use of adjoining land—a category that excludes nuisances caused by

making and marketing a product. 3M Br. at 10-11. This argument is another

attempt to create a special rule to protect product manufacturers from nuisance

liability.

3M’s argument should be rejected for all of the reasons given in the preceding

section. Here again the Restatement rejects this argument, and this Court’s Purdue

Pharma decision also rejected a similar argument. See Purdue Pharma, at 5

(rejecting argument that “nuisance claims should be limited to those relating to

land use issues”); see also Restatement § 821B cmt. g (describing nuisances not

based on land uses, i.e., “the threat of communication of smallpox to a single

person”). All the opioid, PCB, and MTBE decisions cited above are also inconsistent

with 3M’s rule. See, e.g., In re MTBE, 725 F.3d at 122 (explicitly questioning

whether linking the nuisance to defendant’s use of adjoining land is required);

Purdue Pharma, 2018 WL 4566129, at *13 (NH opioids case: explicitly rejecting the

“use of real property” limitation). Nor is there a policy reason why state and local

governments should have a remedy against nuisances caused by land uses, but not

against nuisances caused by far more harmful conduct caused elsewhere. 3M’s

argument should be rejected.

C. The State has sought proper relief for its public and private nuisance claims. Even though 3M does not dispute that PFAS contamination has injured

Vermont natural resources, 3M says the State largely cannot use public or private

nuisance to do anything about it. According to 3M, public officials cannot obtain

damages in public nuisance, and private nuisance cannot be used to protect public resources. 3M’s arguments are misplaced.

1. The State is entitled to damages and other relief for its public nuisance claim. First, 3M is wrong about whether damages are available in public nuisance.

3M relies primarily on Restatement § 821C, which is about standing. One part of

the rule describes which individual parties have standing “to recover damages in an

individual action,” and another part describes which individuals and public officials

have standing “to maintain a proceeding to enjoin or abate a nuisance.” See

Restatement § 821C. 3M argues that, because the rule does not mention a third

type of lawsuit—suits by public officials for damages—this third category must be

prohibited. But the rule does not actually say this; on the contrary, the

Restatement emphasizes that standing is a procedural matter, and that courts should feel “free to proceed with developments regarding standing to sue.” Id. cmt. j.

The courts have clearly accepted this invitation. The most obvious example is the Second Circuit’s MTBE decision, which (relying on Restatement principles) affirmed a damages judgment in favor of New York City and against Exxon based partly on public nuisance. See In re MTBE, 725 F.3d at 79, 111. Other courts have explicitly suggested that “[t]here is . . . no reason why the State may not collect damages in a proper [public nuisance] case.”19

This outcome is particularly appropriate in Vermont, where the Legislature

has recognized the State’s ability to bring “an action in tort to recover damages” for

injuries to groundwater. 10 V.S.A. § 1410(b)(3), (c). 3M’s rule would also make no

sense: it would authorize the State to force 3M to clean up contamination at the

19 Maryland, 350 F. Supp. at 1069; see also City of Evansville v. Ky. Liquid Recycling., 604 F.2d 1008, 1019 n.34 (7th Cir. 1979) (not reaching the question but suggesting that municipality may recover damages). There are also many opioid, MTBE, and PCB lawsuits where the issue was not even raised by the defendants, although the case included a public nuisance claim and a request for damages. See, e.g., Rhode Island v. Atl. Richfield, 357 F. Supp. 3d 129, 141 (D.R.I. 2018) (Rhode Island MTBE case); Purdue Pharma, 2019 WL 3991963, at *1 (Rhode Island opioids case); Purdue Pharma, 2018 WL 4566129, at *13 (NH opioids case); City of Seattle, 237 F. Supp. 3d at 1107 (Seattle PCB case). 3M’s cases forbidding damages in public nuisance are not persuasive. 3M relies on the recent Vermont MTBE case (Atlantic Richfield) and the older Rhode Island lead paint case, 3M Br. at 13, but both cases misread Restatement § 821C, and both have been superseded by even more recent precedents in the same jurisdictions that align with the State’s position, as described above. 28

time judgment is entered, but would leave the State high and dry for any cleanup

costs the State incurs before then—creating a bizarre disincentive for the State to

act promptly against PFAS contamination.

Second, 3M’s objection to damages is not only mistaken, it is premature. The

only question on a motion to dismiss is whether there is a claim “upon which relief can be granted”; the nature of that relief is immaterial to a 12(b)(6) motion. See

V.R.C.P. 12(b)(6). As Wright & Miller say about the identical federal rule: “The

question is not whether plaintiff has asked for the proper remedy but whether

plaintiff is entitled to any remedy.” 10 Fed. Prac. & Proc. Civ. § 2664 (4th ed.)

(footnotes omitted).20

And the State is plainly entitled to abatement. 3M responds by implying that

abatement is impossible because 3M has stopped producing PFAS. See 3M Br. at 13 n.5. But even where the tortious conduct is entirely in the past, a court can order the defendant to abate the nuisance itself (i.e., the ongoing harm caused by the continued presence of contamination) that the defendant’s past conduct has produced. A clear example is ConAgra, where the court ordered lead paint manufacturers to create a fund to abate lead paint in interior residences in

California, even though these manufacturers had stopped selling lead paint decades earlier. 17 Cal. App. 5th at 65.21 Just so here. The State’s abatement prayer is

20 In fact, Rule 54(c) authorizes any relief to which the plaintiff is entitled, even if all the relief mentioned in the complaint is improper. See V.R.C.P. 54(c).

21 Similarly, the recent Oklahoma opioids judgment requires a plan to abate the opioid epidemic by, inter alia, paying for treatment. Purdue Pharma, 2019 Okla. Dist. LEXIS 3486, at *47-48. 29

proper—and suffices to show that the State has stated “a claim upon which relief

can be granted.” V.R.C.P. 12(b)(6).

2. The State has standing to bring a private nuisance action to protect public trust resources. The next issue raised by 3M is whether the State can bring a private

nuisance claim for harm to property the State does not own, e.g., groundwater.22

3M points out that a private nuisance claim must be brought to vindicate interests

“in the private use and enjoyment” of land or other property—a rule that 3M interprets as requiring the plaintiff to own all property affected by the alleged private nuisance. See Restatement § 821D; 3M Br. at 12. But 3M is incorrect: as discussed further below, the State has standing as public trustee and in its parens patriae capacity to protect private interests in public resources.

3M fails to acknowledge the consequences of the State’s interest in groundwater and other resources. It is undisputed that the State has public trust rights in groundwater and other resources. And it is black letter trust law that a trustee has all the rights to bring the same actions an ordinary owner would have, as if the trustee held the property “free of trust.” Restatement (Second) of Trusts

§ 280 & cmt. a & illus. 1. The State also has separate authority under the parens patriae doctrine to address injuries to groundwater and other Vermont resources, including injuries to water in private wells. See, e.g., Hess Corp., 20 A.3d at 216

(sustaining New Hampshire’s parens patriae authority to obtain damages to treat

22 3M does not dispute that the State may bring a private nuisance claim for State-owned property. 30

MTBE contamination in private wells); State v. Exxon Mobil Corp., 126 A.3d 266,

312 (N.H. 2015) (sustaining New Hampshire’s jury verdict in the same case based in

part on injuries to private wells); Compl. ¶¶ 10, 15 (asserting State’s parens patriae

authority); cf. Rhode Island, 357 F. Supp. 3d at 144 (upholding trespass claim

“seeking relief for the invasion of its citizens’ possessory interests by MTBE”).

IV. The State properly pled its trespass claims. A. Chemical invasions constitute actionable trespasses. On trespass, 3M first argues that the trespassing material must be “tangible

matter,” a category that supposedly excludes PFAS contamination. 3M Br. at 14-

15. The truth is that trespass by chemicals is a well-established tort.

First, the two Vermont cases 3M relies on are not on point: (1) both cases are

about transient invasions of smoke and fumes, not plumes of toxic chemicals

contaminating groundwater and other media, and (2) both cases are explicitly

agnostic on whether manifestly harmful invasions of property by intangible matter

(even by truly intangible matter like smoke) would constitute a trespass. See John

Larkin, Inc. v. Marceau, 2008 VT 61, ¶ 15, 184 Vt. 207, 959 A.2d 551 (dismissing trespass claim because no allegation that airborne pesticide particles caused harm to property); Paris v. Lussier, No. 2010–034, 2010 WL 7791942, at n.* (Vt. July 16,

2010) (same, smoke from wood stove). Marceau acknowledged that the “modern” view was to authorize claims for invasion by chemical contaminants, and that

Vermont law is “silent” on whether this modern view is correct. 2008 VT 61, ¶ 13.

Vermont courts have never held that chemical trespasses are not actionable.

Second, 3M’s non-Vermont cases are no help either. 3M cites only one case

that has extended the traditional rule against airborne invasions to chemical

contamination of groundwater, and even that case acknowledged that an

“increasing number of courts recognize trespass actions for intangible intrusion of

particles so long as there is property damage.” Rhodes v. E.I. du Pont de Nemours,

657 F. Supp. 2d 751, 771–72 (S.D. W. Va. 2009). Moreover, the district court in that

case emphasized that the plaintiff had not alleged the contamination had caused any property damage, id., and this pleading defect was the sole basis for affirming the dismissal of the trespass claim on appeal, 636 F.3d 88, 96 (4th Cir. 2011). This is different from 3M’s proposition, which is that toxic chemical migration into natural resources is never a trespass, even when it causes great harm.

Third, many courts routinely allow trespass claims based on chemical contamination.23 This approach is consistent with the Restatement, which

authorizes liability for causing any “foreign matter” to enter the land of another—

an open-ended term that includes chemicals like PFAS. See Restatement § 158 cmt.

i. The Restatement’s examples of foreign matter include “a pail of water” and shot

pellets from a shotgun, id. illus. 3 & 6, intrusions that are far less damaging than a

23 See, e.g., In re MTBE, 725 F.3d at 119 (Second Circuit MTBE decision, sustaining trespass judgment against Exxon Mobil for MTBE contamination of water supplies); Atl. Richfield, 357 F. Supp. 3d at 143 (Rhode Island MTBE, denying motion to dismiss); Abbatiello v. Monsanto Co., 522 F. Supp. 2d 524, 542 (S.D.N.Y. 2007) (same, PCBs); Monsanto Co., 18-CV-540, at 17 (same, PCBs) (Exh. A); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1198 (6th Cir. 1988) (liquid chemical waste); Martin v. Shell Oil Co., 180 F. Supp. 2d 313, 326 (D. Conn. 2002) (MTBE); Hoery v. United States, 64 P.3d 214, 217-18, 222, 225 (Colo. 2003) (toxic chemicals); Fortier v. Flambeau Plastics Co., 476 N.W.2d 593 (Wis. Ct. App. 1991) (volatile organic compounds). 32 plume of toxic “forever” chemicals. Chemical contamination is one of the gravest harms to property. There is no good reason to immunize those responsible for such harm from trespass liability.

B. Product manufacturers can be liable for causing a trespass. In a reprise of its nuisance argument, 3M contends that trespass liability should fall only on the landfills and others who last handled PFAS before release into the environment and not on companies like 3M, which made and marketed the chemicals while knowing with substantial certainty that PFAS would reach onto and contaminate State natural resources and property. 3M Br. at 15-16, Compl.

¶ 307.

First, 3M’s argument contradicts the Restatement. Vermont courts have looked to the Restatement for “guidance” on trespass claims, Marceau, 2008 VT 61,

¶ 13, and the Restatement rule applies to anyone who intentionally “causes” a thing to enter the land of another. Restatement § 158. Here as with the Restatement’s nuisance framework, there is nothing about controlling an instrumentality, no categorical rule that a manufacturer cannot be the entity that caused the trespass.

On the contrary: “[I]t is not necessary that the foreign matter should be thrown directly and immediately upon the other’s land. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.” Restatement § 158, cmt. i. The Restatement again undercuts 3M’s position.

Second, many courts have held product makers liable for causing a trespass or allowed such claims to move forward. These include many of the decisions cited

above, such as the MTBE decisions from the Second Circuit and Rhode Island

federal district court, as well as PCB decisions from Ohio and Oregon state courts.24

Notably, the federal court handling the multi-district MTBE litigation also declined to dismiss a trespass claim against gasoline manufacturers under Vermont law, albeit without addressing the question specifically. In re MTBE, 379 F. Supp. 2d at

441. Against this recent authority, 3M relies on cases rejecting the use of both trespass and nuisance against product manufacturers that have mostly been superseded or rejected by later cases.

Two of these cases—from New Hampshire and Alaska—have been superseded by more recent decisions in the same jurisdictions authorizing nuisance and/or trespass claims against opioid manufacturers. Compare 3M Br. at 16-17 with Section III.A, supra. Another of 3M’s cases is an MTBE table decision from

New York that the Second Circuit cast serious doubt on in its MTBE decision.25

Another is a Kansas federal district court that merely relies on the plaintiffs’ failure

to cite any cases on point. See In re Syngenta AG MIR 162 Corn Litig., 131 F. Supp.

24 In re MTBE, 725 F.3d at 119 (Second Circuit affirmance of $104 million trespass verdict against Exxon in New York City MTBE case); Atl. Richfield, 357 F. Supp. 3d at 143 (Rhode Island MTBE case; rejecting motion to dismiss trespass claim against manufacturers); Monsanto Co., 18-CV-540, at 17-18 (same, Oregon PCB case) (Exh. C); Monsanto, No. A18- 01237, at 6-7 (same Ohio PCB, case) (Exh. A). Accord State v. Fermenta ASC Corp., 656 N.Y.S.2d 342 (N.Y. App. Div. 1997) (herbicide manufacturer can be liable in trespass).

25 Compare In re Nassau County, 918 N.Y.S.2d 399, 2010 WL 4400075 (N.Y. Super. Ct. Nov. 4, 2010) (unpublished table decision) with In re MTBE, 725 F.3d at 122 (Second Circuit: “Nassau County has not been subjected to the scrutiny of any higher state court, and we question whether, on further review, New York law will be found to support liability for public nuisance only if the defendant engaged in the nuisance-causing conduct from land that directly adjoins the plaintiff’s land.”).

3d 1177, 1210 (D. Kan. 2015) (“plaintiffs have not cited any case in which a trespass

claim was allowed against a seller of a product on the basis that the seller knew

that the product would end up interfering with property of non-purchasers if the

seller did not cause the interference itself”). The weight of authority is against 3M.

Third, a categorical rule immunizing manufacturers makes no more sense with trespass than with nuisance. 3M’s argument should be rejected.

C. The State is not required to plead exclusive possession. 3M’s final argument on trespass is that the State must have “exclusive

possession” of the property where the trespass occurs. 3M Br. at 17-18. Given that no one has exclusive possession of certain public trust resources, such as

groundwater, 3M’s argument means that no one has power to remedy trespasses on

these resources. This startling proposition is incorrect.

First, the State’s trustee status authorizes it to redress trespasses upon

public trust resources. As discussed above, it is black letter trust law that a trustee

has all the rights to bring the same “actions” an ordinary owner would have, as if

the trustee held the property “free of trust.” See Restatement (Second) of Trusts

§ 280 & cmt. a. The very first illustration in this part of Restatement spells out the

trustee’s authority to bring trespass actions: “A is trustee of Blackacre. B

wrongfully enters upon and takes possession of Blackacre. A can maintain an

action of trespass or ejectment or such other actions at law as he could maintain if

he held Blackacre free of trust.” Id. § 280, illus. 1 (emphasis added). Put

differently, the whole point of being a trustee is to protect the trust property,

including through the classic method of prosecuting trespasses.

Second, many courts have recognized a public trustee’s right to protect public trust resources from invasion, including by bringing trespass claims. For example,

Oregon and Ohio have successfully pleaded trespass claims based on PCB

contamination of public trust resources. The Oregon decision in particular is useful:

the court acknowledged that Oregon cannot exclude others from public trust

resources, but relied on various statutes (similar to the Groundwater Protection Act

in Vermont) that authorized the State to protect public trust resources from certain

invasions, albeit without explicitly forbidding chemical trespasses. See Monsanto,

No. 18-CV-00540, at 17 (“It is true that the State of Oregon must allow some use of

public trust lands and waterways,” but statutes forbidding certain specific invasions

show that “the State enjoys the right … to bring actions to recover” for trespasses by

PCBs) (Exh. C); cf. Monsanto, No. A18-01237, at 6-7 (declining to dismiss trespass

claim by Ohio) (Exh. A). Other cases have authorized similar claims for invasions of

public trust resources. Attorney Gen. v. Hermes, 339 N.W.2d 545, 550 (Mich. Ct.

App. 1983) (sustaining public trustee’s claim for conversion of fish stocks: “While

the state has less than a complete property interest in its wildlife, and this interest

is subject to constraints such as Indian fishing rights and the federal interstate commerce clause, it is a far superior interest than that enjoyed by defendants.”);

State ex rel. Rice v. Stewart, 184 So. 44, 51 (Miss. 1938) (sustaining state’s right to trespass damages for material dredged from bayou, which state held as public trustee for the people).

Third, the “exclusive possession” rule is not the clear, harsh rule that 3M

describes. 3M does not cite a single case in which the Vermont Supreme Court

applied it to dismiss any claim, let alone a claim to protect public resources. See, e.g., Marceau, 2008 VT 61, ¶ 8. And other authorities have recognized that the

doctrine is subject to many exceptions, e.g., for owners of vacant land, for actions by

easement holders, and for actions by servants or family members of the owners.26

Moreover, the purpose of the rule appears to be to ensure that a landowner cannot

use trespass against individuals with at least an arguable right to possession, such

as tenants and adverse possessors. See Prosser & Keeton on Torts § 13, at 77 (5th

ed. 1984). The upshot is that the rule should not prevent a trustee from protecting

trust resources, because these resources are not possessed by anyone, and because

this action is not an attempt by the State to oust others in possession.

Fourth, the authorities 3M cites are not persuasive. 3M relies on the 2018

Vermont MTBE decision, a 2014 MTBE decision from New Jersey, and New

Mexico’s case against General Electric.27 None of these decisions squared their

rulings with the fundamental law of trusts, as spelled out in the Restatement.

26 See, e.g., Restatement (Second) of Torts § 162, illus. 2 (household member); Prosser & Keeton on Torts (5th ed. 1984), § 13, at 77 (vacant land); id. (servants); Bloomingdales v. New York City Transit Auth., 915 N.E.2d 608, 610 (N.Y. 2009) (sustaining trespass claim where plaintiff had mere easement or right of way); cf. Carlson v. Latvian Lutheran Exile Church, 171 A.3d 1227, 1232 (N.H. 2017) (easement holders may bring action against a trespasser where there was “actual or likely interference with the easement holder’s use and enjoyment of its non-possessory rights”).

27 3M Br. at 18 (citing Atlantic Richfield, 2018 Vt. Super. LEXIS 61, at *19 (Vt. Super. Ct. July 31, 2018); In re MTBE, No. 08 CIV. 312 SAS, 2014 WL 840955, at *3 (S.D.N.Y. Mar. 3, 2014); New Mexico v. Gen. Elec. Co., 335 F. Supp. 2d 1185, 1234 (D.N.M. 2004)).

Moreover, the courts in the New Jersey and New Mexico cases seemed to assume

that there really were or could be other possessors of groundwater under New

Jersey and New Mexico law whose rights might be usurped by a trustee’s trespass

action—a concern that is fundamental to the exclusive possession rule but which is

not present in Vermont, where groundwater is possessed by no one at all.28 As for

the Vermont MTBE decision, it did not analyze the implications of this crucial

aspect of Vermont law.

Finally and relatedly, it bears repeating that 3M’s rule would have practical

results that are quite harsh on the State and its residents. Most public trust

resources (including groundwater) have no actual exclusive possessor. This means

that, if 3M’s view were accepted, the exclusive possession rule would preclude a

trespass claim by any party for any invasion of public trust resources—an outcome

that, for instance, the Legislature could never have intended when it stated that

groundwater is “held in trust for the public,” and required the State to “protect its

groundwater resources.” 10 V.S.A. § 1390(3), (5). 3M’s argument represents the

triumph of form over substance. It should be rejected.

*************

The State properly has pled claims for NRD under the public trust, design defect, public nuisance, private nuisance, and trespass. But, to the extent the Court

28 See 10 V.S.A. 1410(a)(3) (groundwater is a resource “shared among all users”); id. § 1410(c) (authorizing any person to bring “an action in tort” for damage); cf. Towns v. N. Sec. Ins. Co., 2008 VT 98, ¶ 18, 184 Vt. 322, 964 A.2d 1150 (groundwater beneath the insured’s land is “is considered … property not owned by the insured”).

38 decides the State’s allegations do not satisfy the low standard for notice pleading, the State requests leave to amend the Complaint. V.R.C.P. 15(a) (“leave shall be freely given when justice so requires”); LeClair v. LeClair, 2017 VT 34, ¶ 27, 169

A.3d 743 (leave to amend “liberally granted”) (quotation omitted).

CONCLUSION The State respectfully requests the Court deny 3M’s motion to dismiss in its entirety.

Dated: November 22, 2019

STATE OF VERMONT

THOMAS J. DONOVAN, JR. ATTORNEY GENERAL

Thomas J. Donovan, Jr. Joshua R. Diamond Deputy Attorney General Robert F. McDougall Laura B. Murphy Assistant Attorneys General 109 State Street Montpelier, VT 05609-1001 (802) 828-3186Fnrd [email protected] [email protected] [email protected] [email protected]

Hagens Berman Sobol Shapiro LLP Steve W. Berman (admitted pro hac vice) 1301 2nd Avenue, Suite 2000 Seattle, WA 98101 (206) 623-7292

Matthew F. Pawa

39 Benjamin A. Krass (admitted pro hac vice) Wesley Kelman (admitted pro hac vice) 1280 Centre Street, Suite 230 Newton Centre, MA 02459 (617) 641-9550

Kanner & Whiteley, L.L.C. Allan Kanner (admitted pro hac vice) Elizabeth B. Petersen (admitted pro hac vice) Allison S. Brouk (admitted pro hac vice) 701 Camp Street New Orleans, LA 70130 (504) 524-5777

40 1

1 IN THE VERMONT SUPERIOR COURT CHITTENDEN COUNTY CIVIL DIVISION 2

3 STATE OF VERMONT, ) Case No. 547-6-19 Cncv 4 Plaintiff, ) ) Burlington, Vermont 5 -against- ) ) February 20, 2020 6 3M COMPANY, et al., ) 8:28 AM Defendants. ) 7 ______)

8 TRANSCRIPT OF MOTION HEARING 9 BEFORE THE HONORABLE HELEN M. TOOR, 10 SUPERIOR COURT JUDGE

11 APPEARANCES:

12 MATTHEW F. PAWA, ESQ. ALLAN KANNER, ESQ. 13 BENJAMIN A. KRASS, ESQ. ROBERT F. MCDOUGALL, ESQ. 14 LAURA BUCHER MURPHY, ESQ. Attorneys for the State 15 RITCHIE E. BERGER, ESQ. 16 Attorney for Defendant 3M Company

17 IRA M. GOTTLIEB, ESQ. GREGORY A. WEIMER, ESQ. 18 MATTHEW B. BYRNE, ESQ. CYNTHIA S. BETZ, ESQ. 19 NATHAN HOWE, ESQ. Attorneys for Defendant E.I. DuPont de Nemours and Company 20 KATHERINE L.I. HACKER, ESQ. 21 MATTHEW B. BYRNE, ESQ. Attorneys for Defendant Corteva, Inc. 22 IRA M. GOTTLIEB, ESQ. 23 GREGORY A. WEIMER, ESQ. MARGARET RAYMOND-FLOOD, ESQ. 24 HEATHER E. ROSS, ESQ. Attorneys for Defendant The Chemours Company 25

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1 MATTHEW B. BYRNE, ESQ. Attorney for Defendant DuPont de Nemours, Inc. 2

20 Transcription Services: eScribers, LLC 21 7227 N. 16th Street Suite 207 22 Phoenix, AZ 85020 (973) 406-2250 23 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING. 24 TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. 25

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1 (Proceedings convened at 8:28 AM)

2 THE COURT OFFICER: All rise.

3 THE COURT: Good morning, everyone.

4 IN UNISON: Good morning, Your Honor.

5 THE COURT OFFICER: Please be seated. This is in the

6 matter of docket 547-6-19 Cncv. The State of Vermont

7 represented by Attorney McDougall, Attorney Murphy, Attorney

8 Pawa, Attorney Krass, and Attorney Kanner. 3M Company

9 represented by Attorney Berger. E.I. du Pont de Nemours

10 Company represented by Attorney Weimer, Gottlieb, Byrne, Betz,

11 and Howe. Chemours Company represented by Attorney Weimer,

12 Gottlieb, and Raymond-Flood, and Attorney Ross. The Chemours

13 Company FC, LLC, Corteva, Incorporated, and DuPont -- and

14 Corteva, Incorporated represented by Attorney Hacker. And

15 DuPont de Nemours, Inc. represented by Attorney Byrne.

16 THE COURT: Okay, I'm never going to keep straight

17 who is who. You're just going to have to speak when you do.

18 So I know I originally got one request for oral

19 argument and then I just thought we'll just put everything on

20 the table for discussion today.

21 It certainly would appear the motions to dismiss are

22 the primary time consumers for today. But have you all talked

23 about how you want to proceed or shall I dictate it?

24 MR. MATTHEW PAWA: Well, of course, if you want to

25 dictate it, Your Honor, we would accept however you wish to

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1 proceed. However, we do have an agreement that we would

2 propose to you, Your Honor.

3 THE COURT: Okay.

4 MR. PAWA: And I'm Matt Pawa, representing the State.

5 And what we would thought would be most useful and helpful,

6 Your Honor, is if each side takes about an hour and a half.

7 That leaves another thirty minutes for breaks and anything

8 else.

9 THE COURT: Well, each side, but in what order and --

10 MR. PAWA: 3M motion to dismiss first.

11 THE COURT: Okay.

12 MR. PAWA: Followed by the Historical DuPont motion

13 to dismiss, which will be argued by my colleague, Mr. Kanner.

14 THE COURT: Okay.

15 MR. PAWA: Followed by the Corteva motion to dismiss,

16 also by Mr. Kanner.

17 And then the sever and stay motions, which would be

18 argued by my colleague, Mr. Krass.

19 THE COURT: That's sounds reasonable.

20 Everybody on board with that? That's pretty much

21 what I had in mind anyway, so.

22 Okay, sounds good.

23 Any preliminary procedural issues other than that

24 before we get started?

25 All right. If you're taking too long, I may cut you

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1 off so we can move on. And I have read everything, so you

2 don't need to go into every detail. Hit your high points and

3 I'll obviously have questions.

4 So the floor is your, Mr. Pawa, I guess, right?

5 Sorry, Mr. Berger.

6 MR. RITCHIE BERGER: Thank you, Your Honor.

7 THE COURT: Right. We're starting on that side of

8 the room.

9 And who is going to be arguing for each side? You

10 can just tell me when your time comes.

11 UNIDENTIFIED SPEAKER: Mr. Gottlieb will be arguing.

12 THE COURT: Okay.

13 MR. BERGER: Good morning, Your Honor.

14 THE COURT: Good morning, Mr. Berger.

15 MR. BERGER: How are you?

16 Your Honor, having spent last week skiing in Utah and

17 Idaho, and this week reading every Vermont Supreme Court and

18 other jurisdictions -- many other jurisdictions' cases on

19 public trusts, nuisance, and trespass --

20 THE COURT: Let me guess, you're ready to retire.

21 MR. BERGER: That's right. My brain is mush, so I

22 will not repeat everything that's in the briefing and try to

23 hit some high points that I think should be brought to the

24 Court's attention, entertaining any questions the Court might

25 have.

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1 Drill down to the bottom of these motions and I'm

2 convinced, after reading every Vermont Supreme Court case on

3 nuisance, private and public, and trespass and public trust,

4 that 3M's motions, my client's motions, to dismiss those

5 claims should be granted.

6 Turning first to the public trust doctrine, every

7 single decision by the Vermont Supreme Court dealing with the

8 public trust doctrine has dealt with public surface waters and

9 the land beneath it. Not a single decision recognizes what

10 the plaintiff in this case wants to do, which is create this

11 pervasive, unregulated, unlegislated standard list, public

12 trust, trust environmental tort claim.

13 THE COURT: Aren't they correct, though, that there

14 is language, at least in the Railway case, about how it can be

15 broadened and adjusted to the times?

16 MR. BERGER: They took some dicta by Judge Peck,

17 which was frankly not even germane to the case, because the

18 case was a standard application of the public trust doctrine

19 that the State could not give up permanent right to these --

20 THE COURT: Um-hum.

21 MR. BERGER: wharfs and piers into Lake Champlain

22 under the Vermont --

23 THE COURT: But why isn't that right? I mean --

24 MR. BERGER: Sure. There's no question that it's not

25 totally static. But that doesn't mean it can just,

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1 judicially, create it to any type of cause of action when it's

2 vested. It's whole basis is with legislative action; that is,

3 what the legislature does, not what the executive branch --

4 not what, frankly, the judiciary might want to do.

5 But it's a trust to the legislature to make these

6 determinations as to the scope of the public trust doctrine

7 and how it will be provided, with the limitation that

8 ultimately, the legislature can't give up those rights by deed

9 or grant of an easement to conduct a mill operation in Lake

10 Fairlee or Lake Morey, or what the case may be.

11 THE COURT: Um-hum.

12 MR. BERGER: But --

13 THE COURT: But this isn't going that far, right.

14 This is still water. We're talking about water.

15 MR. BERGER: It's still water. But what they're

16 asking the Court to do is to create environmental tort, to

17 essentially legislate an environmental tort for any type of

18 public trust resource, as opposed to incrementally letting the

19 legislature, which is in charge of this, to do that. And when

20 the legislature has decided a cause of action is necessary,

21 such as with groundwater, it can legislate to that effect.

22 The absence of such legislation, even after the MTBE,

23 and the decisions by Judge Teachout there, is telling. And

24 again, by relying on a passing reference that the doctrine can

25 adapt to modern times, to say that we have in this case a

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1 cause of action against 3M for sale or manufacture of PFAS,

2 which terminated in 2002, according to the complaint, is

3 beyond any recognized decision or even dicta by the Vermont

4 Supreme Court. So --

5 THE COURT: And what about in other jurisdictions?

6 MR. BERGER: Well, again, the Vermont Supreme Court

7 has recognized that each state's public trust doctrine is very

8 unique.

9 THE COURT: But haven't other states had a broader

10 interpretation?

11 MR. BERGER: Yes, and some have had a much narrower

12 interpretation. So it really doesn't add much to it. I mean,

13 to look to California --

14 THE COURT: Um-hum.

15 MR. BERGER: -- and even they didn't recognize a

16 cause of action for damages, just to regulate, I think, Lake

17 Mono, if I'm pronouncing it correctly.

18 THE COURT: Beats me.

19 MR. BERGER: But you don't gain a lot by turning to

20 other states' --

21 THE COURT: Well, but I always have to turn to other

22 states because there are so few cases in Vermont. I'm sure

23 you do the same thing.

24 MR. BERGER: We do. But what you get is a divergence

25 of decisions based upon the unique history of a given state's

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1 public trust doctrine.

2 THE COURT: Understood.

3 MR. BERGER: So here, again, what the plaintiffs want

4 to do is to create this environmental tort action under the

5 guise of the public trust doctrine. It hasn't been permitted

6 by the Vermont Supreme Court. The Vermont Supreme Court has

7 been very clear as to the exact constitutional basis for the

8 public trust doctrine. And this case doesn't fit within it.

9 They have other claims and other cause of actions.

10 We haven't moved to dismiss the entire complaint, but this is

11 a situation where they basically have taken no case law from

12 Vermont, a little snippet of dicta from the waterfront case,

13 and said that they should blow this open and have an

14 environmental tort for any and all basis. And it shouldn't be

15 allowed under the public trust doctrine.

16 THE COURT: All right.

17 MR. BERGER: So that's essentially the argument. If

18 you look at the Parker v. Town of Milton, again, the State v.

19 Central Vermont Railway, and I think Malmquist, in particular,

20 it really focusses on what the purpose and what the scope of

21 the public trust doctrine is. And it's not an environmental

22 tort action.

23 They have a Title 10 claim; that's what the

24 legislature has created. The legislature has not said,

25 Attorney General's Office, you have a public trust

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1 environmental tort claim against people who have engaged in

2 commerce and in sale of manufactured goods.

3 So that would turn us to the public and private

4 nuisance claims. And that truly was eye-glaring, reading

5 every one of those. But I think the focus, really, on the

6 public and private nuisance claim should be Vermont's

7 historical approach to these ancient, and I mean ancient,

8 common law torts.

9 I believe I've read every single reported decision by

10 the Vermont Supreme Court for both private and public

11 nuisance. Every single one of them involved the defendant's

12 use of land in some form, usually adjacent land -- almost

13 always adjacent land, and control of the instrumentality at

14 the time of the alleged nuisance.

15 We cited the Beretta decision, Camden County Board of

16 Freeholders v. Beretta. It's 273 F.3d 536. And it correctly

17 points out -- it's an excellent analysis of a historical

18 nuisance decision. And they wrote -- the court there, the

19 circuit court -- "Traditionally, the scope of nuisance claims

20 has been limited to interference with real property or

21 infringement of public rights."

22 And they also noted what I think the Court would

23 agree with, that in 1984 edition Prosser and Keeton, Professor

24 Prosser wrote, and it's quoted in many judicial decisions,

25 "There is perhaps no more impenetrable jungle in the entire

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1 law than that which surrounds the word 'nuisance'. It has

2 meant all things to all people and has been applied

3 indiscriminately to everything from an alarming advertising to

4 a cockroach baked in a pie."

5 THE COURT: Well, it sounds like it would cover

6 everything here, too, then.

7 MR. BERGER: No, because they recommended that it be,

8 in fact, held to its historical roots, which is precisely what

9 the Vermont Supreme Court has done, Your Honor.

10 The Vermont Supreme Court has been very conservative

11 and very cautious in its approach to both private and public

12 nuisance. In the Napro decision, versus Town of Berlin, 134

13 Vt. 353, in 1977, Justice Billings wrote for the court,

14 correctly, in my view, and I quote, "We believe that the

15 concept of public nuisance is vague and amorphous". Nobody

16 can probably disagree with that.

17 And the court also wrote, and I quote, "We believe

18 that the public nuisance law provides an extraordinary remedy

19 for situations which truly demand one." So they were very

20 clear in holding it.

21 And they also cited basically the historical body of

22 public nuisance claims in Vermont. And they cite State v.

23 Woodbury, back to 1894, involving the operation of a slaughter

24 house; State v. Murphy, 1898, keeping and sale of liquor at a

25 premises; City of Montpelier v. McMahon, which is a

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1 purpresture, which I had to look up, which is an encroachment

2 on adjacent public property by stockade or fencing; and then

3 they cited the famous Hazen v. Perkins from 1918, interfering

4 with the water level of a lake by the person at the dam. So

5 again, use of his property was the basis for the nuisance

6 claim by the State in that case.

7 THE COURT: So do you think that if a next-door

8 neighbor -- if I poured chemicals down my well and it went

9 into my neighbor's well, that would be any different just

10 because I live there, as opposed to --

11 MR. BERGER: I would clearly be different under

12 nuisance law, Your Honor, exactly right.

13 THE COURT: So just the fact that it was the next-

14 door neighbor doing it instead of someone further away makes a

15 difference in your opinion?

16 MR. BERGER: Yeah, absolutely. Or in very limited

17 situations -- again, because the Vermont Supreme Court has

18 been very, very cautious and careful in its application of

19 nuisance law.

20 In the UniFirst case, the dry cleaner contaminated

21 the town water supply. And the Vermont Supreme Court said

22 because of UniFirst's use of its property, okay -- not because

23 somebody sold dry cleaning solvent was being sued because

24 UniFirst poured it in or allowed it to enter into the public

25 water system, but UniFirst, because of the use of its property

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1 and it's contamination of the water stream, could be sued

2 under a very limited declaration by the Vermont Supreme

3 Court --

4 THE COURT: Um-hum.

5 MR. BERGER: -- for diminution of fair market value.

6 But again, the focus was on the defendant's use of its

7 property, which created the nuisance in that setting.

8 And I think the proof in the pudding in the way of

9 the Vermont Supreme Court's approach to this is the Myrick v.

10 Peck Electric case, 204 Vt. 128 (2017), which dealt with

11 private nuisance claim. But again, for this purpose, there's

12 no distinction. It said, "The law of private nuisance" --

13 this is, I think, Justice Eaton, for the court. And I quote,

14 "The law of private nuisance springs from the general

15 principle that it is the duty of every person to make a

16 reasonable use of his own property" -- so that gets to your

17 hypothetical, Your Honor -- "to make reasonable use of his own

18 property so as to occasion no unnecessary damage or annoyance

19 to his neighbor."

20 THE COURT: So what if I came and dumped chemicals

21 down your well? It's not my property, but it's going to cause

22 the same damage to the neighbor's well.

23 MR. BERGER: You wouldn't be liable in a nuisance,

24 although I might be for allowing you access to use my property

25 for that purpose, under agency principles. You could be

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1 liable in other claims. So --

2 THE COURT: And what about the Restatement example

3 about the spread of smallpox? Surely, you read that as well

4 while you were reading all these things.

5 MR. BERGER: I did. But that also took an overt act

6 on a given premises by the defendant.

7 THE COURT: Um-hum.

8 MR. BERGER: And it brings me to, I think, Your

9 Honor, an important point. And that is the contrast in Judge

10 Teachout's approach in the MTBE case to public nuisance with

11 yours in the Purdue Pharma opioid case.

12 THE COURT: Um-hum.

13 MR. BERGER: And yes, we distinguish your decision

14 for various reasons, including, as you noted there, there

15 wasn't a products liability claim; there is one here. You

16 focused on Judge Teachout's concern over the statute of

17 limitations.

18 THE COURT: Um-hum.

19 MR. BERGER: Respectfully, I think, reading and

20 having argued that before Judge Teachout, that really wasn't

21 the substantive focus of her decision on public nuisance.

22 But where, I think, speaking candidly --

23 THE COURT: Um-hum.

24 MR. BERGER: -- the Court went astray in Purdue

25 Pharma to this point was you cited a comment to the

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1 Restatement as a basis for why it wasn't necessary to have it

2 tied to land. And I think it was at page 12 of your

3 decision -- I can't quite recall; maybe page 5. But you cited

4 a section of the Restatement that said it is not restricted to

5 the plaintiff's use of enjoyment of her land. And you applied

6 that to the argument as to whether it has to be tied to the

7 defendant's use or enjoyment of its land.

8 THE COURT: Um-hum.

9 MR. BERGER: In other words, you flipped the analysis

10 there. And as a result, you said, well, we're going to deny

11 the 12(b)(6) motion. That comment properly read, especially

12 in light of Myrick and the decisions by the Vermont Supreme

13 Court does tie it to control and to possession of real

14 property and use of that property by the defendant.

15 And that is affirmed, as the Court is aware, from the

16 distributors in the opioid case by the Restatement (Third),

17 which has made clear --

18 THE COURT: Which is no longer a draft or is still a

19 draft? I've lost track.

20 MR. BERGER: It's been -- I think it's at the adopted

21 stage.

22 THE COURT: You're not sure?

23 MR. BERGER: What's that?

24 THE COURT: You're not sure?

25 MR. BERGER: I'm not sure.

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1 THE COURT: Okay.

2 MR. BERGER: I read the briefing and I -- they

3 attached the -- as I understand it, it's deemed in effect at

4 this time. And Cardinal Health and the other defendants in

5 that case attached proof of that.

6 But I only offer it for this purpose. My read of

7 that comment to Restatement (Second) of Torts that you relied

8 on in the Purdue case is validated by Section 8 from the

9 Restatement (Third). They say that comment in that section

10 has created a lot of confusion with the courts and in fact --

11 I think it's comment G to Section 8 of the Restatement

12 (Third), it cites the Beretta case, it cites the lead paint

13 cases, and with approval as to why those types of claims,

14 manufacturing claims, unrelated to ownership and use of that

15 land and ability to control the nuisance at the time of its

16 creation is not a public nuisance.

17 THE COURT: Okay.

18 MR. BERGER: So I know -- I don't believe the Court's

19 ruled on that motion, but you -- I read it --

20 THE COURT: In Cardinal.

21 MR. BERGER: What's that?

22 THE COURT: Yeah, I haven't.

23 MR. BERGER: Right. I read the briefing yesterday

24 and with great interest, especially the Section 8 of the

25 Restatement (Third) of Torts, the comment that we're

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1 discussing.

2 So again, on private and public nuisance -- and

3 again, just pointing out to the incremental approach of the

4 Vermont Supreme Court, very conservative.

5 THE COURT: Um-hum.

6 MR. BERGER: In the Larkin case -- we've argued that

7 this is not a tangible invasion of property for trespass

8 purposes or nuisance, but in the Larkin case, the Vermont

9 Supreme Court took a very cautious view on trespass, which

10 we'll get to. In Myrick and every other decision, the Vermont

11 Supreme Court has been very, very careful not to blow it out

12 beyond it's bounds.

13 And thus in Myrick, they said we're not going to

14 interfere with or overrule a decision that says a private

15 party can use their property as an aesthetic claim because the

16 neighbor doesn't like the view, we're not going to expand it.

17 Yes, we said eight years ago said we might entertain it, but

18 we're not going to do it because, again, these are very old

19 common law concepts, they are established, but they are

20 amorphous and, candidly, they're dangerous overapplied to

21 circumstances where they don't fit because they are almost

22 standardless.

23 In Vermont, in creating a cause of action for

24 alteration of ground water, the legislature has the benefit of

25 taking testimony, et cetera, and making a measured decision as

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1 to a cause of action and even defining what is

2 unreasonable and -- I should say, what is reasonable. This is

3 obviously Section 1410.

4 But instead of just saying it interferes with use and

5 enjoyment of land -- what does that mean; as the Court has

6 pointed out, it's so amorphous, it could mean nothing -- the

7 legislature, in its wisdom, says, okay, there's a cause of

8 action if there's unreasonable harm caused by another person

9 altering the water. And then it goes on in Section E and it

10 sets forth nine different determinations for reasonableness

11 because it understands that there's two sides to everything

12 and it needs to have some standards.

13 And this private or public nuisance claim that's just

14 ill-defined and is really masquerading as a products liability

15 claim is not only standardless, but as Judge Teachout pointed

16 out in the MTBE case, it really is a monster that will consume

17 the tort law unnecessarily.

18 They have 402A claim in this suit. And it's not

19 currently challenged except for failure to argue -- except for

20 some specificity of what feasible alternative designs were

21 there.

22 THE COURT: Right.

23 MR. BERGER: Right. So that addresses the major

24 points with respect to public and private nuisance. And

25 again, that gets us to trespass.

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1 And trespass, Your Honor, likewise, as I have

2 indicated, the Vermont Supreme Court has been really

3 reluctant, and in fact has refused, to take again another

4 ancient common law concept and just let it go roughshod. And

5 that gets with the Larkin decision and the fact that, as Judge

6 Teachout recognized, and in the MTBE decision, and as set

7 forth in Larkin, a trespass, and I quote, "is an invasion of

8 the plaintiff's interests and the exclusive possession of his

9 land". And as she correctly pointed out with respect to

10 ground water here, the State, as a matter of law, doesn't have

11 exclusive possession of that.

12 THE COURT: But in Larkin, they didn't actually

13 resolve the question.

14 MR. BERGER: They --

15 THE COURT: They said we don't get to it, right?

16 MR. BERGER: That's right, but that dealt with --

17 that only dealt with the particulate issue.

18 THE COURT: Right.

19 MR. BERGER: That's right. But the point is they

20 weren't racing to create a new graft onto the existing common

21 law. They went slow on it.

22 And that's one of our arguments, the intangible

23 particulate argument. But the stronger action is that -- the

24 stronger argument, and I think it's really, if you drill down

25 on all the cases, the vast majority recognize it, if you don't

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1 control the instrumentality at the time of the trespass, it

2 shouldn't be a trespass action. There may be other claims,

3 but it's not a trespass action.

4 And we cited the Town of Hooksett case from the

5 Federal District of New Hampshire, City of Bloomington, the

6 Sanjetta case (ph.), the Dine case, D-I-N-E, which was

7 discussed at length by Judge --

8 THE COURT: But as the Court pointed out in Larkin,

9 there are other courts that have expanded it. --

10 MR. BERGER: Right.

11 THE COURT: -- right? And they don't -- they don't

12 make a decision. So I mean if I'm -- where I'm sitting --

13 MR. BERGER: Sure.

14 THE COURT: -- on a motion to dismiss --

15 MR. BERGER: Right.

16 THE COURT: -- I have to decide is there any chance

17 that this could be successful under Vermont law. And if the

18 Vermont Supreme Court hasn't -- I mean, they basically said

19 it's an open question, isn't that a reason not to grant

20 dismissal at this stage of the proceeding?

21 MR. BERGER: The Vermont Supreme Court has never said

22 that the element of control is an open question, never. In

23 fact, every single Vermont trespass case --

24 THE COURT: I guess that's right. They were talking

25 about the particulates questionnaire.

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1 MR. BERGER: That's right, which is a little more

2 esoteric or metaphysical, frankly.

3 THE COURT: Yeah.

4 MR. BERGER: But on the control issue, every single

5 Vermont Supreme Court decision and trial court decision to my

6 knowledge -- and as you know, it's hard to read them all, if I

7 can find them all, but dealt with --

8 THE COURT: At least we're in Vermont and not New

9 York.

10 MR. BERGER: There you go. I thank God.

11 THE COURT: There's some limit.

12 MR. BERGER: But everything -- every one of them, it

13 was undisputed that the defendant controlled the

14 instrumentality at the time of the trespass. So plaintiff

15 argues, well, there's no Vermont Supreme Court holding that

16 control is necessary. Well, how could there be because it

17 existed in every single trespass case. It just existed. You

18 don't declare that it's required when it's admitted.

19 And so just kind of wrapping it up, again, I'm not

20 going to repeat every argument we've made, but there's really

21 three core issues by this motion to dismiss. Yes, Vermont

22 disfavors 12(b)(6)s, as we know. But it's still a rule and a

23 viable rule. And at every turn, the Vermont Supreme Court

24 affirms multiple grants of 12(b)(6), virtually every --

25 THE COURT: I grant lots of them.

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1 MR. BERGER: I understand.

2 And I only point this whole citation to the

3 haystack -- really haystack, it's gotten a glossed over the

4 years, but basically means 12(b)(6) shouldn't substitute for

5 summary judgment.

6 THE COURT: Right.

7 MR. BERGER: And we agree. I absolutely agree, of

8 course. But these causes of action that are under attack by

9 these motions, there's no facts that change anything. There's

10 no factual development that will change anything. The reality

11 is they are teed up as a matter of law.

12 And as a matter of law, this case should be winnowed

13 down to those causes of action that the legislature has

14 expressly declared, or that are clearly available under the

15 common law, as opposed to blowing out tort law, ancient tort

16 law, property law, public/private nuisance, public trust, and

17 trespass -- blowing it out of its historical and current

18 bounds unnecessarily shouldn't be done, respectfully.

19 If the legislature chooses to do that, that's one

20 thing. But under the existing Vermont Supreme Court

21 precedent, all of those causes of action -- public trust,

22 private and public nuisance, and trespass -- fail as a matter

23 of law. And respectfully, we think that 3M is entitled to

24 dismissal.

25 THE COURT: And you think that's true even if the

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1 Court hasn't expressly addressed the question, just if they've

2 never said it is okay?

3 MR. BERGER: Absolutely, because in part, it's rooted

4 in the history of these torts and where these cases have come

5 and candidly, the lack of any imperative for this trial court

6 to upset 200-plus years of common law.

7 Thank you very much.

8 THE COURT: That was a good ending. Okay.

9 MR. BERGER: Thank you.

10 THE COURT: Mr. Pawa, your response?

11 MR. PAWA: Thank you very much, Your Honor.

12 With respect to public trust, Your Honor, indeed, the

13 Vermont Supreme Court has not directly addressed the question

14 of whether or not there is an affirmative claim as a matter of

15 common law for damages by the State under a civil action for

16 natural resources damages, as we've termed our first cause of

17 action, or if you want to use the shorthand, the public trust

18 doctrine, which we believe are essentially interchangeable.

19 We are thus in a similar situation as the Court was in in the

20 Vermont opioids case, where Your Honor held that where an

21 issue is open in Vermont, dismissal was inappropriate.

22 Now I'd like to address, if may, the Vermont Central

23 Railway (sic) case in a moment. But first, since we do look

24 to sister-state courts when the Vermont Supreme Court has not

25 directly addressed an issue, we have a case that's directly on

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1 point. And that's the State v. Hess case, the New Hampshire

2 Supreme Court's decision in 2011 that expressly recognized

3 that "the doctrine allows a state attorney general, as

4 trustee, to bring a cause of action for damages to natural

5 resources held in trust by the State."

6 And then, it's not amorphous, the elements are

7 defined. "To bring a successful claim", the court says, "the

8 State must prove an unreasonable interference with the use and

9 enjoyment of trust rights."

10 As Your Honor pointed out, the Vermont Supreme Court

11 often finds sister-state courts' decisions persuasive. For

12 example, In Re Faignant, F-A-I-G-N-A-N-T, 2019 Vt. 29; that's

13 a 2019 Vermont Supreme Court case. It was a bar disciplinary

14 case. The subject matter has nothing to do with this. But he

15 Vermont Supreme Court said, "In reaching our conclusion, we

16 find persuasive a recent decision by the New Hampshire Supreme

17 Court", et cetera. And there's other cases like that.

18 THE COURT: Yup.

19 MR. PAWA: So we submit to you, respectfully, Your

20 Honor, that State v. Hess got it right and expressly

21 recognized and defined what the cause of action is all about.

22 Before I address Vermont Central Railway (sic), I

23 want to note that DuPont has attacked the State v. Hess

24 decision by saying, well, that was based on a law journal

25 article that was written by my co-counsel, Mr. Kanner, and the

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1 New Hampshire Supreme Court misread the law review article.

2 And they pick out from footnote 29 the statement that

3 Mr. Kanner made saying, well, public trust is a doctrine of

4 standing and you need to have some other substantive claim,

5 like public nuisance. That footnote went with a sentence in a

6 paragraph that was talking about the historical roots of the

7 doctrine. Here's what Mr. Kanner actually said in the rest of

8 the law review article. Page 111, "The public trust doctrine

9 provides its own theory of recovery". And on page 59, he

10 says, "Under the public trust doctrine, state AGs can sue, as

11 trustee, for damages to natural resources that are held in the

12 public trust". And then he defines the elements, the same as

13 the New Hampshire Supreme Court does.

14 THE COURT: So you think I should be citing your co-

15 counsel --

16 MR. PAWA: No, no.

17 THE COURT: -- as the authority here?

18 MR. PAWA: No. I am defending the honor of the New

19 Hampshire Supreme Court, which did not misread his article.

20 That was my -- that is only my point.

21 THE COURT: Got it.

22 MR. PAWA: And I would just add that in footnotes 4

23 and 5 of that article, Your Honor, Mr. Kanner wasn't making it

24 up. And the New Hampshire Supreme Court was cognizant of it.

25 He was citing the William Rodgers Hornbook on environmental

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1 law. And William Rodgers is probably the father, the parent,

2 of much of environmental law in this country.

3 So this wasn't Mr. Kanner making it up. And the New

4 Hampshire Supreme Court didn't misread that article. So --

5 THE COURT: So what about --

6 MR. PAWA: Yeah, yup.

7 THE COURT: -- Mr. Berger's point that in Vermont at

8 least, it's really handed to the legislature to define the

9 scope of the public trust doctrine?

10 MR. PAWA: I would say that's not correct, with all

11 due respect, Your Honor. For example, in the Vermont Central

12 Railway (sic) case, the court said in pages 342 and 343, "In

13 Vermont, the critical importance of public trust concerns is

14 reflected both in case law and in the state constitution." Of

15 course the state constitution expressly recognizes the public

16 trust doctrine.

17 And I would also refer Your Honor to the In Re MTBE

18 district court decision by Judge Scheindlin in the Southern

19 District of New York. There were some Vermont plaintiffs who

20 were part of that multi-district litigation. She resolved the

21 motion to dismiss. And she said the Vermont Supreme Court has

22 rejected the notion that it should defer to the legislature

23 when departing from the common law. And she cited to a case

24 called Hay v. Medical Center of Vermont, 145, 533.

25 So we submit, Your Honor, respectfully, that they are

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1 incorrect about that.

2 And that the Vermont Central Railway (sic) case, Your

3 Honor, really points the way. I mean, we have, obviously, to

4 pay most close attention to the Vermont Supreme Court's

5 precedence here, naturally. And in that case, as you pointed

6 out, the court says, "The very purposes of the public trust

7 have 'evolved in tandem with the changing public perception of

8 the values and uses of waterways.'" And it was quoting from

9 the most famous public trust case of all, the Mono Lake case,

10 the National Audubon Society v. Superior Court from

11 California.

12 And the Vermont Supreme Court repeatedly cites from

13 that case, which stands for the proposition that we should not

14 tie the public trust doctrine to the ancient scope and

15 purposes. And the Mono Lake case, in two respects, expanded

16 the public trust doctrine.

17 One, it recognized that it applied to the purity of

18 the air. The deprivation of water to Mono Lake was causing

19 the lakebed to go dry; it was causing dust storms. Dust

20 storms was air pollution. Here, we're dealing with water

21 pollution. But that was a new application of the public trust

22 doctrine. And the Vermont Supreme Court looked to Mono Lake

23 as good law, important law.

24 In addition, Mono Lake expanded not just the purposes

25 to the purity of the air and recreational and aesthetic

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1 interests, as the Court said, but the scope of the doctrine.

2 The streams flowing into Mono Lake were non-navigable. And

3 the California Supreme Court said we're going to apply the

4 public trust doctrine to those non-navigable streams, even

5 though in the past, in the horry old days, we used to apply it

6 only to navigable waterways.

7 And so there's a lot of -- yes, Your Honor.

8 THE COURT: But you're still -- I mean, you're asking

9 me, essentially, to expand beyond what the supreme court has

10 done, right?

11 MR. PAWA: Yes, Your Honor.

12 THE COURT: And isn't that really a supreme court's

13 job?

14 MR. PAWA: Well, it's yours in the first instance, as

15 in opioids, where Your Honor said there was no law directly on

16 point and it was inappropriate to dismiss.

17 Ultimately, it would be.

18 THE COURT: But here --

19 MR. BERGER: Ultimately.

20 THE COURT: -- what you're really asking me to do is

21 to look to New Hampshire and create this new set of guidelines

22 about how you show the elements and so forth, right? I mean,

23 we don't have anything right now that says that in Vermont,

24 right?

25 MR. PAWA: There is no Vermont --

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1 THE COURT: I mean, you're saying look to Hass; they

2 list what you should have to prove.

3 MR. PAWA: Correct, Your Honor.

4 THE COURT: So it really is creating something --

5 it's not just saying, well, it's unclear in Vermont whether

6 you have it or not. That would really be sort of establishing

7 something entirely new; wouldn't it? Without any basis except

8 I think New Hampshire has got a good idea there?

9 MR. PAWA: Well, no, Your Honor, you would be reading

10 the clear indication in the Vermont Central Railway (sic) case

11 that this doctrine is not to be limited to its ancient roots.

12 I mean, the Court said that and it pointed the way.

13 THE COURT: But does that necessarily mean that the

14 courts expand it, as opposed to the legislature expanding it?

15 MR. PAWA: Either are appropriate.

16 THE COURT: But how do I know that's what they meant?

17 MR. PAWA: Well, the quote I read you, in part, helps

18 point the way; the critical importance of the public trust

19 concerns is reflected both in case law and the constitution.

20 And the quote from Judge Scheindlin in the In Re MTBA

21 decision, which is from, I think, 2005, dealing with Vermont

22 law, quoting that Hay v. Medical Center Vermont case said one

23 of the principle purposes of tort law is to compensate people

24 for injuries, and it's judge-made and applied. This is a

25 judge-made doctrine. This is the common law. So it's not

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1 just for the legislature.

2 And Your Honor, at the end of the day, we'll have a

3 special verdict form. And we'll have all of our claims on a

4 special verdict form. And if the jury disagrees with this on

5 public trust, it's over, subject -- unless we lose everything

6 and we appeal.

7 But if we win on our other claims, it's done, and the

8 Vermont Supreme Court won't have to address it. So we

9 would --

10 THE COURT: Yeah, but that's not a reason for me to

11 make a decision: I'll just leave it in for the heck of it and

12 let them figure it out, right?

13 MR. PAWA: Well, not for the heck of it, Your Honor,

14 but because you think that this right. And in the first

15 instance, we would respectfully submit that not only the New

16 Hampshire Supreme Court got it right. There's an Ohio Supreme

17 Court decision dealing with sewage pollution of a river that

18 harmed the fish, the Bowling Green case, in which the Ohio

19 Supreme Court said, "An action against those whose conduct

20 damages or destroys such property, which is a natural resource

21 of the public, must be considered an essential part of a trust

22 doctrine, the vitality of which must be extended to meet the

23 changing societal needs."

24 THE COURT: What was the extension there, though?

25 MR. PAWA: It seems to have -- it's not a model of

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1 clarity, but it seems to have recognized a public trust cause

2 of action. Now, there was negligence, admittedly.

3 THE COURT: Um-hum.

4 MR. PAWA: The word negligence was used there.

5 THE COURT: Um-hum.

6 MR. PAWA: It doesn't say Ohio was suing under a

7 negligence doctrine. And the quote I just read you seems to

8 indicate it was in fact a public trust cause of action.

9 You've got the Amerada Hess case, Maryland v. Amerada

10 Hess, which mostly is about standing, but seems to suggest

11 that this is also its own cause of action.

12 So there's a lot out there, Your Honor, for you to

13 base an opinion on when you're trying to project how the

14 Vermont Supreme Court would decide this. And there's a lot of

15 instances where there's no controlling authority right on

16 point.

17 And we would respectfully submit that the trial

18 court, in the first instance, can and should make that

19 decision.

20 THE COURT: Okay.

21 MR. PAWA: With respect to whether or not the claim

22 covers groundwater and wildlife, we would refer Your Honor to

23 the Vermont Constitution and to the State v. Malmquist.

24 Clearly, this doctrine applies. The public trust doctrine in

25 Vermont unquestionably applies to wildlife -- that was in

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1 Malmquist -- and to the resources on which wildlife depend.

2 It was a case dealing with the lowering of the lake. The

3 court said it wasn't just the fish but it was the resources on

4 which the fish depend.

5 And with respect to groundwater, there's no dispute,

6 A, that the groundwater in Vermont is part of the public

7 trust, and B, under section 1410(f), there is no preemption of

8 common law because the legislature expressly said so.

9 I also want to just very briefly address, before I

10 move on to the next claim, that there is a general rule in

11 Vermont and elsewhere that judicial decisions are applied

12 retroactively. So for example, the American Trucking

13 Associations v. Conway case, 152 Vt. 363.

14 THE COURT: I'm sorry, what's the issue about?

15 Retroactivity?

16 MR. PAWA: Yeah. So they're claiming that since it

17 wasn't until 2008 when the legislature passed Section 1390 of

18 Title 10, that we're creating something that applies

19 retroactively. But judicial decisions always apply

20 retroactively in a civil context, with very rare exceptions.

21 THE COURT: Well, I'm not sure I'd go that far, but I

22 get your point.

23 MR. PAWA: Thank you, Your Honor.

24 I don't believe we addressed design defects, so let

25 me save that for last. I do want to address design defect,

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1 but I don't think I heard anything about that this morning.

2 So let me move to public nuisance, if I may.

3 THE COURT: Okay.

4 MR. PAWA: Your issue, the honor of -- Your Honor,

5 the issue of control is really a question of causation. There

6 are some cases that talk about control, some of which say

7 control is not an element of public nuisance. For example,

8 the California Supreme Court in Ileto v. Glock, a case against

9 gun manufacturers. Other cases, like the Rhode Island Supreme

10 Court in the lead paint case, it says yes, it is.

11 But the issue really comes down to causation. And

12 the trend in this area is moving strongly, we would submit

13 very strongly, in favor of allowing public nuisance claims to

14 go forward, including some that have gone to judgment, against

15 a manufacturer.

16 The most notable one that went to judgment is the New

17 York City MTBE case that was affirmed by the Second Circuit,

18 In Re MTBE, which upheld a public nuisance verdict against a

19 manufacturer.

20 The key that runs -- and there's a lot of case law in

21 here; there's opioids, there's PCB's cases. We've cited all

22 these in pages --

23 THE COURT: But not in Vermont yet that expressly

24 address it, right?

25 MR. PAWA: Well, Your Honor denied a motion to

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1 dismiss in opioids.

2 THE COURT: Well, I mean the supreme court, the

3 supreme court.

4 MR. PAWA: Correct, correct.

5 And the theme -- if I could try to boil this down to

6 what's really going on in these cases, whether you use the

7 word control or not, it's a question of cause and proximate

8 cause. And here's what the courts look to for the key.

9 In PCB's cases across the country, in MTBE cases

10 across the country, in opioids cases, the courts are asking

11 was it foreseeable when a manufacturer sold and distributed

12 and marketed a product and knew that when used exactly as

13 intended that this product was going to cause this kind of

14 harm that would normally constitute a public nuisance.

15 And we've got lots and lots of allegations in our

16 complaint that the defendants knew that their product, when

17 used exactly as intended, was going to cause these kinds of

18 harms. That's the control.

19 If you look at the Rhode Island -- one of the best

20 opinions in this area is the Rhode Island MTBE decision, which

21 is entitled, I believe, State v. Atlantic Richfield -- or

22 Rhode Island v. Atlantic Richfield. Federal Court Judge

23 Smith, resolving a motion to dismiss, in the wake of a Rhode

24 Island Supreme Court decision in Lead Paint several years

25 earlier saying control is an element of nuisance. And the

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1 court says manufacturers can have that element of control when

2 they know that their product, when used, is going to

3 inevitably contribute to a nuisance.

4 I'd also note that Judge Teachout found control

5 satisfied on the trespass claim against MTBE manufacturers.

6 And I don't understand why that same decision didn't apply to

7 nuisance. But say there is --

8 THE COURT: In which case are you talking about?

9 MR. PAWA: In the State v. Atlantic Richfield MTBE.

10 THE COURT: Okay.

11 MR. PAWA: And so as far as trespass is concerned,

12 Judge Teachout looked at this element of control and said,

13 "With respect to State-owned properties", which is how she

14 limited the claim, "the element of control is sufficiently

15 alleged."

16 So there is lots and lots and lots of law out there.

17 And the trend here -- maybe to coin a phrase, the trend is

18 friend. I mean if you look at these PCVs cases we've cited on

19 pages 23 to 25 of our brief, MTBE cases, gun cases.

20 Counsel for 3M was citing a gun case from the City of

21 Chicago. There are other gun cases that go the other way. He

22 was citing a case from -- dealing with asbestos, the Tioga

23 case, which has this famous quote that public nuisance is a

24 monster that will --

25 THE COURT: Um-hum.

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1 MR. PAWA: -- swallow the law of tort in one gulp.

2 Well, the law has moved sharply against that view.

3 THE COURT: And yet Vermont hasn't yet done that. I

4 mean his point is Vermont has looked at these from a very

5 conservative standpoint, historically.

6 MR. PAWA: Well, the cases have arisen in the context

7 of land use. And so it's easy in any state to go find these

8 old chestnuts from the old cases saying a nuisance arises when

9 the defendant uses his land in a way that causes -- because

10 the cases happened to arise from the defendant -- those are

11 just the fact that they happen to arise from the defendant's

12 use of land.

13 By 3M and DuPont's reckoning, Your Honor, they could

14 drive down the street with a truck full of PFAS, like in the

15 old days with DDT, and spray onto people's properties and onto

16 state property and public trust properties and have no

17 liability.

18 THE COURT: Well, not under this theory, anyway.

19 There would probably be some others.

20 MR. PAWA: Right. I mean, they're saying use of --

21 because they weren't using land. And so that's not a -- that

22 can't be a public nuisance.

23 THE COURT: But to the extent that -- and Mr. Berger

24 correctly pointed out that they weren't discussing the control

25 issue when they said this in Larkin or Marceau, whatever you

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1 want to call it. But they did have an opportunity with regard

2 to airborne particles to expand the doctrine and they chose

3 not to. So isn't that some hint that maybe they are not

4 jumping on the bandwagon to broaden this?

5 MR. PAWA: Well, I think that was a traditional

6 application of the principle that a court won't decide an

7 issue that it doesn't need to decide.

8 And in that case, the plaintiff had so completely

9 failed on summary judgment --

10 THE COURT: Um-hum.

11 MR. PAWA: -- to establish any facts that would show,

12 quote, physical impact, that it wasn't necessary for the court

13 to weigh in on that debate. And so it was sort of a wise

14 exercise of judicial caution not to resolve a point of law

15 that you don't need to.

16 THE COURT: But isn't it also true that when a court

17 really is looking to expand something, they often don't really

18 go by that old chestnut, as you would say.

19 MR. PAWA: If they really want to do something, sure

20 they can. Whether or not these chemicals would be considered

21 intangible, I don't know.

22 THE COURT: But I mean just in general, if they

23 wanted to expand the doctrine -- I guess you're saying they

24 really haven't had a great opportunity to address the

25 controls --

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1 MR. PAWA: Correct, Your Honor.

2 THE COURT: Is really what you're saying.

3 MR. PAWA: -- correct, Your Honor.

4 A number of the other cases that the defendants cite

5 are patently distinguishable. I mean, the New Jersey lead

6 paint case, rejecting public nuisance against lead paint

7 manufactures. There was two statutes in New Jersey that

8 dictated that result. One was a statute that declared lead

9 paint a public nuisance and attributed fault to the landlords.

10 And the second was a product liability statute that displaced

11 other causes of action. And so that's clearly

12 distinguishable.

13 Your Honor, they've also cited a couple of cases from

14 Michigan and Alaska dealing with companies that did nothing

15 more than deliver gasoline. And they were both summary

16 judgment cases, by the way, not motion to dismiss. Cloverleaf

17 Car Company was the Michigan case. And Parks Highway

18 Enterprises was the Alaska case. In the case where the court

19 said the defendant did nothing more than deliver gasoline to a

20 gas station. There was no allegation like we've made here of

21 the knowledge. And that's really the key, that's it's

22 foreseeable.

23 There's also sort of an outmoded notion of

24 abatability in the Tioga case from the Eighth Circuit that

25 3M's counsel was discussing and in some of the other cases.

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1 And that is, well, since a manufacturer can't go onto your

2 land because they don't have the right to go on your land and

3 abate it, therefore, it's not abatable and therefore, it can't

4 be a public nuisance.

5 But the courts again, recently, are moving very

6 strongly against that. A great example is the California Lead

7 Paint case where an abatement judgment consistent of money.

8 And the recent trial court decision by the Oklahoma state

9 trial court --

10 THE COURT: Money for a cleanup specifically?

11 MR. PAWA: Yes, yes, Your Honor. A similar result on

12 a final judgment -- I think it's final a bench trial judgment

13 from Oklahoma on an opioids case stating this is an abatement

14 case, it's going to cost 572 million dollars to abate the

15 opioids remedy in year one. And that's what the remedy is

16 going to be, along with other abatement measures.

17 But you don't have to be able to enter someone's

18 property in the modern view of abatement law in order to have

19 a proper public nuisance claim that seeks abatement.

20 On the use of land, Your Honor, I want to just point

21 out one thing that was not cited in the brief. And that is

22 that the Restatement (Second) of Torts, Section 821(c),

23 comment E says that when a public nuisance interferes with

24 plaintiff's use of land, it is a private as well as a public

25 nuisance. And of course a public nuisance doesn't have to

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1 involve the defendant's use of land. And so -- and that's

2 comment H from Section 821(b). So if you put two and two

3 together, there's no use of land requirement.

4 We also would point out to you the State v. Fermenta

5 ASC Corp. -- that's a mid-level appellate decision in New

6 York -- holding a manufacturer liable in trespass after a

7 trial. And also a private nuisance claim in that case went

8 all the way to trial and lost because there wasn't enough

9 evidence of intent.

10 But those are examples of cases going against

11 manufacturers -- the State v. Fermenta going all the way to

12 judgment, on a private nuisance claim by a public authority,

13 the Suffolk County Water Authority.

14 THE COURT: I'm assuming, by the way, that you're all

15 citing things that are already in your papers.

16 MR. PAWA: On the --

17 THE COURT: If you cite things that aren't, it might

18 be helpful to just submit a list after today because I'm not

19 scribbling down all the citations.

20 MR. PAWA: Happy to do that.

21 THE COURT: Okay.

22 MR. PAWA: Yes, Your Honor.

23 THE COURT: Go ahead.

24 MR. PAWA: Yes.

25 The defendants also argue -- 3M argues, Your Honor,

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1 that you can't obtain damages when you're a public authority.

2 And that just goes, again, against the vast majority trend of

3 modern cases, including cases admittedly that don't expressly

4 discuss the issue.

5 But for example, the Rhode Island MTBE case was a

6 case for monetary damages against a manufacturer by the State

7 of Rhode Island; motion to dismiss denied. The Rhode Island

8 opioids case; motion to dismiss denied. The PCBs cases for

9 Seattle; motion to dismiss denied. The New York City MTBE

10 decision by the Second Circuit, upholding a damages verdict in

11 favor of the plaintiff, again, not directly addressed.

12 But the idea that a public authority cannot obtain

13 damages is a misreading of Section 821C, subsection 1, the

14 special injury rule of the Restatement (Second) of Torts.

15 What that section says is that in order to recover damages in

16 an individual action, et cetera, et cetera, you would have to

17 show special injury, an injury different in kind from that,

18 the general public.

19 This is not an individual action. This is an action

20 by the State.

21 THE COURT: Are you talking about both of the claims

22 or just the public nuisance claim?

23 MR. PAWA: Public and private.

24 THE COURT: Okay. So --

25 MR. PAWA: Yes.

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1 THE COURT: -- I mean their argument is you really

2 don't have the right to collect at least one of the -- I think

3 one of the arguments is you can't get damages on behalf of

4 individuals on a private nuisance claim. You can only do that

5 for state-owned lands, right?

6 MR. PAWA: That's one of their arguments, indeed.

7 THE COURT: And why is that not right? I mean --

8 MR. PAWA: Well, again, I return to the New Hampshire

9 case where we ended up getting a judgment. There was a 2015

10 decision from the New Hampshire Supreme Court affirming a

11 judgment that was a parens patriae action seeking damages on

12 behalf of the citizenry.

13 Under the parens patriae doctrine, we step into the

14 shoes of our citizenry. And there's a lot of a contamination

15 of private wells, just as in here as Vermont, with PFAS. Just

16 as in New Hampshire, there was a lot of contamination of

17 private wells with MTBE. And the state obtained a number of

18 categories of damages in that case, including the money to go

19 out and test all the wells and treat the wells that were

20 contaminated with MTBE.

21 That's what the parens patriae doctrine is all about;

22 it's stepping into the shoes of the citizenry who couldn't

23 bring those claims or wouldn't bring those claims.

24 THE COURT: So if an individual brought a nuisance

25 action for contamination of their well, they could win just

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1 for a money-damages verdict, right? It wouldn't have to be

2 money spent to clean up, right?

3 MR. PAWA: Right.

4 THE COURT: They could say --

5 MR. PAWA: Right.

6 THE COURT: -- we get a million dollars because you

7 ruined our water.

8 MR. PAWA: Right, diminution in property value, for

9 example.

10 THE COURT: So doesn't that suggest that if the State

11 is bringing a private nuisance claim on behalf of those other

12 people, as a trustee, that the money should be doled out to

13 those individuals, not going to some fund that the state

14 administers?

15 MR. PAWA: With respect, no, because we stopped short

16 of certain things. As we've expressly said in our complaint,

17 we're not seeking personal injury, we're not seeking

18 diminution in property value. Our focus is on the water,

19 which is a public trust resource.

20 THE COURT: But that --

21 MR. PAWA: And so --

22 THE COURT: But then is that really a private claim?

23 MR. PAWA: Well, no, as Judge Crawford said in the

24 Sullivan case, that those plaintiffs cannot -- in his 2017

25 opinion, those plaintiffs cannot obtain a loss of use of the

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1 water damages. Their claim was limited to the loss of the use

2 of the above-ground property, their residences, because their

3 water had been contaminated. But the water itself, as Judge

4 Crawford said, is a state resource. And so to the extent

5 there's any claim, public or private nuisance, it belongs to

6 the state as the trustee.

7 THE COURT: So how do you distinguish your public

8 versus private claim here?

9 MR. PAWA: Yes.

10 THE COURT: How would you articulate the difference

11 between those two?

12 MR. PAWA: So the public nuisance claim requires that

13 we show that there's this interference with public rights.

14 THE COURT: Um-hum.

15 MR. PAWA: And the private nuisance claim requires

16 that we show that there's interference with the right to use

17 and enjoy property.

18 Here, they're going to overlap a lot because the

19 right to use and enjoy the property, the water, is also the

20 interference with a public right. So we have plead both.

21 THE COURT: Um-hum.

22 MR. PAWA: These claims are quite similar. They do

23 overlap. But the way you measure damages in private nuisance,

24 it can often be different from public nuisance. And they are

25 very similar. What I would say is that the private nuisance

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1 case claim probably relies more on our parens patriae rights

2 to step into the shoes than the public nuisance doctrine.

3 THE COURT: Okay. Moving on?

4 MR. PAWA: Yes, Your Honor.

5 The question of exclusive possession and trespass, we

6 would respectfully submit again that the federal judge hearing

7 the Rhode Island MTBE case, who recently denied a motion to

8 dismiss got it right. And had a wonderful quote on this

9 exclusive possession issue. He said, "The State outmaneuvers

10 this potential obstacle by bringing its case as parens

11 patriae."

12 In other words, the defendants are arguing that under

13 the exclusive possession rule nobody owns the water and

14 therefore no one can ever bring a trespass claim. And we

15 submit that Judge Smith got that right. That is not correct.

16 And it's even more so true here, where there's a public trust

17 right in the water, which I don't believe is the case in Rhode

18 Island, where there's private ownership in the water.

19 As 3M itself acknowledges in footnote 13 of its

20 brief, it makes perfect sense that a trustee may bring a

21 trespass action to protect an owner's property rights. But

22 then they argued, but no one owns this property.

23 We don't think that's the law. We would also point

24 Your Honor to the Michigan case of Attorney General v. Henes,

25 H-E-N-E-S, which is cited in our brief. And that was a claim

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1 by the state for conversion by the trustee when there was harm

2 to fish stocks. And again, the state didn't have exclusive

3 possession. Like us, it had a public trust right over the

4 fish stocks. And the court said the trespass action was

5 proper.

6 The last thing I'd like to address, unless Your Honor

7 wants me to address anything else, would be the design defect

8 claim.

9 THE COURT: Go ahead.

10 MR. PAWA: Your Honor, on design defect, the issue is

11 whether or not the Vermont Supreme Court already has, or would

12 adopt, the Restatement (Third) with respect to design defect.

13 And the Restatement (Third) would require that the

14 plaintiff plead and prove an alternative design. That is not

15 the law in Vermont. In the Webb case from 1996, as the court

16 said, "In 1975, we adopted the doctrine of strict products

17 liability set forth in the Second Restatement of Torts,

18 Section 402A."

19 And then it goes on to quote from comment I, which

20 sets forth the governing test in Vermont that's repeatedly

21 been applied by the court, and that is the ordinary consumer's

22 expectations test, which I will not bother reading to you.

23 Now, it is true that in Webb, the court looked to a

24 different section of the Restatement of Third (sic) dealing

25 with comparative fault. But that's because in Webb, the court

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1 said the Restatement (Second) of Torts is silent as to

2 comparative fault, so it looked to the Restatement (Third).

3 It never has said that with respect to this question

4 of alternative design. In fact, by my count, in Webb, the

5 Vermont Supreme Court cited 402A of the Second Restatement of

6 Torts something like fifteen times.

7 The defendants, 3M, have cited a few trial court

8 cases.

9 THE COURT: Just to backup, though.

10 MR. PAWA: Sure.

11 THE COURT: It doesn't appear that in that case, that

12 they raised this question.

13 MR. PAWA: Correct, correct.

14 THE COURT: So they may not have been thinking about

15 the fact that there was a difference in the Restatement

16 (Third) on this issue.

17 MR. PAWA: That's true. It was not a litigated point

18 in Webb. But in 1975, in the Zaleskie case, as Webb states,

19 the Section 402A was adopted. It's the consumer expectations

20 test. And that is the law. And they've made very clear what

21 the test is. And the test does not require --

22 Yes.

23 THE COURT: Sorry.

24 MR. PAWA: No.

25 THE COURT: You can finish you're phrasing.

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1 MR. PAWA: You're the judge; I won't interrupt.

2 THE COURT: First of all, is it your position that

3 the Restatement (Third) is final now or just a draft? And how

4 much is it controlling?

5 MR. PAWA: Yeah, it's final. It's not --

6 THE COURT: Okay.

7 MR. PAWA: -- controlling at all and it is highly

8 controversial, highly controversial. So we didn't have a

9 chance, because we didn't go last in the briefing, to respond

10 to their Brooklyn Law Review article from 2009 by Aaron

11 Twerski and James Henderson, Jr. And 3M uses that law review

12 article to claim that there's an overwhelming majority of

13 jurisdictions that are moving towards the Restatement of (sic)

14 Third.

15 We really dispute that. And we want to call to your

16 attention --

17 THE COURT: Does he have an article saying the

18 opposite?

19 MR. PAWA: No, but I -- I do, but I didn't write it.

20 THE COURT: Okay.

21 MR. PAWA: And it's from the Harvard Law Review. And

22 I've got something better than that, which is the Connecticut

23 Supreme Court. If I may, Your Honor.

24 THE COURT: While you're looking for that, do you

25 know when the Restatement (Third) A first came out, this

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1 particular section, and when it became final?

2 MR. PAWA: Well, there were drafts of it out when

3 Webb was decided in 1996, at last drafts of this section

4 dealing with comparative fault. I don't know about this other

5 section. But it had to have been out in the 1990s because

6 that's when courts started dealing with it, including this

7 case from the Connecticut Supreme Court, which I would like to

8 call to Your Honor's attention.

9 So the authors of that law review article -- the

10 Brooklyn Law Review article cited by 3M also happen to be the

11 reporters for the Restatement. And the Connecticut Supreme

12 Court has recognized that what they have been arguing for and

13 contending should be the law is extremely controversial.

14 For example, in the case which I would like to hand

15 up to you, with your permission, Your Honor --

16 THE COURT: You may.

17 MR. PAWA: -- the Bifolck case versus Philip Morris

18 from 2016, the Connecticut Supreme Court rejects the

19 Restatement (Third), sticks with the Restatement (Second), and

20 says the following. First of all, they cite cases from

21 California, Hawaii, Kansas, New Mexico, Florida, Pennsylvania,

22 Illinois, Missouri, New Hampshire, and Wisconsin, all

23 rejecting the Restatement (Third). That's from the 2016

24 opinion.

25 And then they go on to say, "Indeed, even the product

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1 liability defense bar has admitted that the controversy

2 surrounding the adoption of the Restatement (Third) has not

3 abated."

4 And then they cite to a defense counsel journal

5 article from 2015 that says, "[s]eventeen years after [the

6 American Law Institute] adopted the Third Restatement of Torts

7 on the topic of product liability, lawyers across the country

8 continue to wrestle with a reasonable alternative design

9 requirement, including whether it"..."should be a requirement

10 at all."

11 And there was a similar decision from the Connecticut

12 Supreme Court, which I'd also like to hand up to you -- Potter

13 v. Chicago Pneumatic Tool Company from 1997 -- going through

14 the reasons why they were rejecting the Restatement (Third) of

15 Torts.

16 And then the third thing I'd like to hand up to you

17 is a Harvard Law Review article called -- I love the title of

18 this -- "Just What You'd Expect, Professor Henderson's

19 Redesign of Product Liability". And it's really quite

20 shocking what they say in here.

21 "In the 1990s, tort reformers turned their attention

22 to the American Law Institute, which promulgates the

23 Restatement series, including Section 402-9. They chose as

24 their standard bearers two law professors, James Henderson and

25 Aaron Twerski" -- these are the authors of that Brooklyn Law

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1 Journal Article -- "who had supported legislative tort reform

2 and written extensively in favor of limiting manufacturers'

3 liability for harms caused by their products.

4 Henderson's preference for leaving decisions to the

5 market is so strong that he has insisted on a fault-based

6 standard of liability to constrain the courts, even while

7 acknowledging that such a standard may in some respects be

8 unfair and inefficient."

9 Footnote 9, "The tort reformers have attempted to

10 appropriate the prestige of the ALI through power politics,

11 even though that prestige is built on the ALI's tradition of a

12 nonadversarial deliberative body."

13 And then quoting a Michigan Law Review Article,

14 describing the "veritable barrage of mail aimed to get out the

15 vote targeted to members of the ALI who are also members of

16 law firms whose clients' interests might have lead them to

17 support their current proposals."

18 And I am not suggesting that anyone in this courtroom

19 was part of that effort.

20 THE COURT: I didn't realize I was walking into such

21 a hornet's nest here. Fascinating.

22 MR. PAWA: Yeah, well, I didn't either. And when I

23 found -- when I found these materials -- and with Your Honor's

24 permission, I'd like to approach.

25 THE COURT: Thank you.

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1 MR. PAWA: And then we have copies for opposing

2 counsel.

3 MR. BERGER: Thank you very much.

4 MR. PAWA: So we didn't have a chance to respond to

5 the Brooklyn Law Review article. And I had no idea that it

6 was so controversial. This is not an area of the law that

7 I've litigated heavily before.

8 But the bottom line is we know from Webb and Zaleskie

9 and many other cases the Vermont Supreme Court just has not

10 gone there. It has repeatedly said that it applies the

11 ordinary consumer expectations test of the Restatement

12 (Second) of Torts.

13 THE COURT: Okay. Thank you very much.

14 MR. PAWA: Thank you very much, Your Honor.

15 THE COURT: Mr. Berger.

16 MR. BERGER: Thank you, Your Honor.

17 THE COURT: Last words.

18 MR. BERGER: Counsel seemed to suggest that Hay v.

19 Medical Center Hospital of Vermont supports this Court's right

20 or reason to dramatically expand not only the public trust

21 doctrine in Vermont, but the law, the ancient common law, of

22 public and private nuisance and trespassing. And that is

23 simply not the case.

24 The Vermont Supreme Court has made clear -- in our

25 reply brief, it set out that the scope of it is very

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1 important. It is in the City of Montpelier case, 2012 Vt. 32.

2 The Vermont Supreme Court explained that the public trust

3 doctrine, and I quote, "is entrenched in the Vermont

4 Constitution's provision granting Vermont citizens the right

5 to fish in all boatable and other waters under proper

6 regulations to be made and provided by the General Assembly."

7 And that's what the Court keeps coming back to in all

8 occasions, including Berlin Pond, when it says that unless the

9 state says to Berlin that you can exclude these boaters and

10 fishermen and women, you can't, because the legislature is

11 primary there, with the constitutional restriction it can't

12 give away to the railroad section of Lake Champlain to put out

13 its wharfs and piers.

14 And that gets us back to this whole argument about

15 Hay and judicial expansion of the common law. First of all,

16 the Vermont Supreme Court has set forth -- and Hay was not a

17 creation of a new cause of action. It's a medical malpractice

18 case. And the holding was simply an expansion of available

19 damages to an adult child of a person who had been rendered

20 permanently comatose --

21 THE COURT: Right.

22 MR. BERGER: -- as a result of medical malpractice.

23 So it's a tort action dealing with damages in the

24 concept of medical malpractice.

25 But the Vermont Supreme Court has said that although

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1 it has power, and I quote, "to change the common law to meet

2 the changing need of the state", it also recognizes when an

3 issue is better -- "the issue presented 'is better left for

4 legislative resolution.'" That's the Scheele case cited at

5 page 11 of our reply brief. And what could be better left to

6 the legislative resolution than the public trust doctrine and

7 these ancient concepts that are at issue?

8 And as the Vermont Supreme Court also made clear,

9 that it is improper to change the common law where doing so,

10 and I quote, "would entail a radical departure from the

11 underlying reasons and implicit assumptions upon which the"

12 common law doctrine was based.

13 That applies, four square, to nuisance and trespass.

14 And that's one reason why the Vermont Supreme Court, I

15 suspect, has been so wary of blowing them out beyond their

16 historical bases.

17 With respect to the public trust section -- excuse

18 me, the public nuisance sections of the Third Restatement,

19 effective May 21, 2018, the ALI accepted the Restatement's

20 clarification of the scope of public nuisance. That's

21 Restatement (Third) of Torts, Section 8. And we can provide

22 the Court, as was Exhibit B, to a filing by the distributors

23 in that opioid case.

24 They provided the court there with the actual printed

25 adoption of that section, which again makes clear product

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1 manufacturers, such as 3M, are not within the scope of public

2 nuisance under the Restatement (Second), which this Court

3 cited and relied on in that comment to deny Purdue's motion on

4 public nuisance.

5 So just bringing it full circle, respectfully, it's

6 not the role of this Court to take dramatic changes in the

7 common law. If the Vermont Supreme Court, either on

8 interlocutory appeal or an appeal at the end of this case,

9 because these are remaining causes of action, including the

10 statutory causes of action that the legislature said, yes, the

11 State of Vermont can pursue --

12 THE COURT: How much, though, do you think it's the

13 trial court's role to predict that the Supreme Court would

14 expand common law, just hypothetically?

15 MR. BERGER: Yeah, I think it should be rare,

16 frankly. Because without a track record of decisions, where

17 you have a lot of decisions -- we do have recent decisions

18 here. We have Myrick. We have other decisions.

19 THE COURT: Um-hum.

20 MR. BERGER: And we have the Vermont Railway case --

21 the Railroad case. So this isn't a situation where you're

22 dealing with an absence of authority for 200 years. We have

23 lots of decisions and we have clear trends and clear

24 reluctance by the Vermont Supreme Court to do what the

25 plaintiffs want done in here.

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1 So in these circumstances, certainly I submit the

2 Court should not take that step. The Vermont Supreme Court,

3 on appeal, again by interlocutory or final appeal, can address

4 those, but the case should proceed under recognized,

5 legitimate causes of action and not these ones that are at odd

6 with 250 years of history and judicial decisions.

7 Thank you, Your Honor.

8 THE COURT: Thank you very much.

9 Okay. Who is up next?

10 MR. IRA GOTTLIEB: I am, Your Honor. Would you mind

11 if we take a short bio break before we get started?

12 THE COURT: No, that's fine. Just quick since we've

13 got a lot to cover. Whenever people can get back in.

14 THE COURT OFFICER: All rise.

15 (Recess at 9:38 a.m., until 9:45 a.m.)

16 THE COURT OFFICER: All rise.

17 Please be seated.

18 THE COURT: Okay, happy now?

19 MR. GOTTLIEB: Good morning, Your Honor.

20 Ira Gottlieb on behalf of the historical DuPont and

21 the two Chemours companies.

22 I wonder if you'd mind if I'd stay at counsel table.

23 THE COURT: Not at all. That's fine.

24 MR. GOTTLIEB: Okay. So I don't want to go over the

25 same ground that Mr. Berger went over. Obviously, our motions

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1 overlap in some substantial parts. There are two critical

2 differences that I would like to discuss and argue with the

3 Court.

4 So first, I would like to talk about the public trust

5 doctrine and parens patriae as a standalone cause of action,

6 then move on to our motion for a more definite statement in

7 the context of the motion to dismiss. And then finally, to

8 the extent there was anything that Mr. Berger didn't cover

9 with respect to trespass and the two nuisances --

10 THE COURT: I'm sure he covered everything.

11 MR. GOTTLIEB: I think he covered almost everything.

12 And as I go through my notes, I'll see if there's anything we

13 said that he didn't. It won't take very long.

14 So with respect to the public trust doctrine and

15 parens patriae, it's abundantly clear that those two doctrines

16 are standing doctrines. They do not provide substantive

17 causes of action. Judge Teachout, in her Atlantic Richfield

18 decision, looked at the issue pretty carefully. She cited a

19 well-known case from New Mexico from the Tenth Circuit, New

20 Mexico v. General Electric, which said the same thing. And in

21 our brief, we cited a number of cases which made the same

22 point.

23 It's a standing doctrine. It certainly gives the

24 State a vehicle, the basis, to sue. And then it can make --

25 it can bring causes of action in that capacity, whether they

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1 are nuisance actions, trespass actions, under statutory

2 authorities, like the Groundwater Protection Act, or any other

3 statute or common law cause of action that's recognized.

4 THE COURT: What about the Hess case in New

5 Hampshire? What do you say about that?

6 MR. GOTTLIEB: I was about to get to the Hess case in

7 New Hampshire. So I would say, at best, the Hess case in New

8 Hampshire is an outlier. Let me tell you why.

9 First, I don't think that the court actually had in

10 front of it the public trust doctrine as a cause of action.

11 In fact, in page 217, the court says, "Here, however, the

12 State does not explicitly rely upon the public trust doctrine

13 as a separate cause of action."

14 So first, even though it looks like it recognizes

15 it -- there's no disputing that; when you read the decision,

16 it's pointing out elements, it's talking about the basis of

17 such a cause of action -- it cites no authority other than my

18 learned friend and colleague, Mr. Kanner.

19 But Mr. Kanner's article is quite clear; you can read

20 it for yourself. He himself recognizes that it's a standing

21 doctrine and that its historic history is akin to standing.

22 The other cases that the state cited actually did not

23 hold that it was anything more than a standing doctrine. They

24 talk about the Amerada Hess case, the case from Ohio. They

25 talk about the state has a right to bring a cause of action in

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1 the nature of public trust for trust resources and trust

2 property and losses to the public trust.

3 They don't actually recognize it as a standalone

4 cause of action. That would be an enormous leap forward in

5 terms of creating a cause of action, that other than what the

6 New Hampshire Supreme Court said -- and I'd like the Court to

7 look at that closely -- has never been recognized as a

8 standalone cause of action.

9 There are also other reasons why it shouldn't be a

10 standalone cause of action besides the obvious basis that it's

11 a standing doctrine, and that's because they have other

12 avenues to seek relief as the trustee or acting in the parens

13 patriae -- in their parens patriae capacity.

14 THE COURT: Um-hum.

15 MR. GOTTLIEB: They can proceed under the causes of

16 actions they have brought here so long as they meet the

17 elements of those, the basic elements of those causes of

18 action, and then subject to developing enough evidence to

19 establish those claims.

20 But there is no independent basis for public trust or

21 parens patriae as a cause of action itself. So --

22 THE COURT: Okay.

23 MR. GOTTLIEB: And I think the case law is fairly

24 clear on that point. It has not been recognized by any court.

25 And we've cited the Deeds (ph.) and other cases which outline

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1 the history, as well as General Electric -- the State of New

2 Mexico v. General Electric.

3 THE COURT: And you don't think that the reference

4 to -- the Vermont reference to the constitution and common law

5 changes that?

6 MR. GOTTLIEB: No, but it actually addresses a

7 different question. And Mr. Berger's motion really addressed

8 this point far more than ours does. It's what is the scope of

9 what's within the public trust. Is it limited to certain

10 resources or are those resources not part of the public trust

11 because they're not legislatively mandated or they're not

12 provided for by some authority?

13 So there's two different issues here. One is whether

14 there's a cause of action as trustee, per se. And then

15 regardless of whether there is or not, when the public trustee

16 is acting in its parens patriae capacity --

17 THE COURT: Um-hum.

18 MR. GOTTLIEB: -- what are the resources that are

19 within the trusteeship? So does it include groundwater? Does

20 it include surface water? Does it include wildlife? Et

21 cetera, et cetera.

22 Those are two separate issues. And I think they have

23 become slightly blurred -- the distinction between them has

24 become slightly blurred in the papers.

25 But as Judge Teachout said, there is an important

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1 distinction between substantive law and standing doctrines.

2 And it could not be said more concisely. I think she that in

3 about eight words in that dealing with these same issue,

4 whether the State as trustee met its burden on a pleading

5 basis for trespass and nuisance and similar causes of actions

6 to the ones we have here.

7 Moving on to our motion for more definite statement,

8 which ties into our motion to dismiss. There's a basic legal

9 principle that is well recognized in every state. I think the

10 Bingham v. State and the Parker v. Milton case talk about it.

11 There has to be an injury in fact. And that injury in fact

12 ultimately has to be tied to a cause for the injury in fact.

13 Without an injury in fact, it doesn't matter how general your

14 allegations are, you don't have a cause of action. You have

15 to meet that threshold requirement.

16 Here the State's allegations on some counts are so

17 vague and ambiguous that they haven't alleged an actual

18 injury.

19 For example, the State points out in its complaint,

20 at paragraph 60 and 67, what is the established health

21 advisory standards for PFAS compounds in the State of Vermont.

22 They are twenty parts per trillion, for both drinking water

23 and groundwater.

24 That presents a threshold benchmark for whether there

25 is a claim, whether there is actually damage. Before we get

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1 to injury in fact -- before we actually get to the question of

2 causation, we have to know whether in fact there's been an

3 injury.

4 The State also refers at length to its statewide

5 sampling plan. It cites it in paragraph 9, paragraph 55,

6 paragraph 57, and paragraph 59 of its complaint. That's

7 statewide sampling plan has been in place for over a year now.

8 It's been actively implemented over the last, I would say, six

9 to nine months.

10 And we now know as a result of that that in many

11 instances, the State has accessed information as to whether at

12 some of these general locations -- we'll put aside the broad

13 categories they've alleged -- but at some of these general

14 locations, whether in fact there has been an injury in fact.

15 In other words, for drinking water wells, for

16 noncommunity, transport drinking -- transient community --

17 THE COURT: Um-hum.

18 MR. GOTTLIEB: -- drinking water wells, they know --

19 at many of the locations, they have asserted it should be part

20 of the complaint, whether in fact there has or has not been an

21 injury in fact.

22 This is going to be a very large and massive case,

23 similar to the case Judge Teachout confronted in the Atlantic

24 Richfield, with possibly hundreds, if not thousands, of

25 locations. If we can narrow that now, it will --

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1 THE COURT: But isn't that what discovery is for?

2 MR. GOTTLIEB: Of course that's what discovery is

3 for. But there's a certain baseline of information that you

4 need, as I said earlier, to meet the injury-in-fact

5 requirement.

6 THE COURT: if I remember correctly, they do have

7 citations about the high levels that have been found in

8 certain places.

9 MR. GOTTLIEB: Only in two or three locations. In

10 the vast majority of them -- for example, they list, by my

11 count, about twenty-five landfills --

12 THE COURT: Um-hum.

13 MR. GOTTLIEB: -- some of which -- they may have very

14 well been part of the sample plan by now. And in none of

15 those locations, and I can list them off, do they --

16 THE COURT: Please don't.

17 MR. GOTTLIEB: No, I'm not going to. I could, I

18 didn't say I would.

19 They don't allege that the twenty PPT standard has

20 been exceeded. Now, if they don't know, if they want to say,

21 we believe an injury has occurred because of statewide use of

22 PFAS compounds, that one thing. But if they do know, if they

23 have that information currently, why do we need to make this

24 case any larger, broader, or more complicated than it already

25 is?

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1 They have -- and I think the Court can take judicial

2 notice of this by virtue of the fact that the sampling plan

3 has been referred to within the complaint, the results of

4 which can be merged into that allegation.

5 THE COURT: Um-hum.

6 MR. GOTTLIEB: I think they know at which locations

7 there has and has not been --

8 THE COURT: But if it's in the document merged into

9 the complaint, why isn't that all you need?

10 MR. GOTTLIEB: Well, I guess we could move on summary

11 judgment immediately with respect to those locations; that's

12 true. But the goal here, however, is -- obviously, when a

13 claim is dismissed on a pleading basis, it's often the subject

14 of an amendment.

15 THE COURT: Um-hum.

16 MR. GOTTLIEB: So they're in control of that

17 information right now. It's at their -- it's at their -- it's

18 in their hands. So if they know at this point -- rather than

19 waiting for discovery, we can reform the complaint in a

20 manner -- or amend it in a matter, so that we know which sites

21 are really at issue. Otherwise, we have to go multiple steps

22 to get to the same place we are at the pleading stage.

23 THE COURT: So what state do you typically practice

24 in?

25 MR. GOTTLIEB: New Jersey.

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1 THE COURT: Okay.

2 MR. GOTTLIEB: And other states.

3 THE COURT: And you know Vermont has a very broad

4 standard in this regard.

5 MR. GOTTLIEB: I do.

6 THE COURT: Broader than most. I was surprised to

7 learn that when I became a judge. I was used to a different

8 one.

9 But how is this different, for example, from the

10 common personal injury complaint that says there was a car

11 accident and the plaintiff was injured? It doesn't say and

12 she broke her left leg and her back was sprained and she has

13 permanent headaches. We don't require that level of detail.

14 MR. GOTTLIEB: That's an excellent question. And I

15 do recognize that the pleading standard is, quote-unquote --

16 we even said it in our brief -- exceedingly low.

17 THE COURT: Um-hum.

18 MR. GOTTLIEB: But it's not bottomless. And we cite

19 in our brief, Wright and Miller, which talks about how you

20 look at the pleading at the early stages to see not only does

21 it have a short and plain statement, but does it also state

22 the basis upon which relief can be granted. And it's that

23 second part that I'm focusing in on.

24 In a case such as this, it's not a car accident, it's

25 not a simple contract. It's a case involving hundreds of

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1 sites, the State's own investigation of those locations and

2 sites. And it's a situation where, in the words of Wright and

3 Miller, you look at whether -- a short and plain statement is

4 determined on a case-by-case basis, depending on the nature of

5 the action, the relief sought, and the respective positions of

6 the parties in terms of the availability of information,

7 precisely what I was talking about a moment ago.

8 The State is in the best position right now to know

9 the nature of that information. This is a cause of action

10 involving a broad number of locations, a broad number of

11 sites. In fact, in some instances, we're not even dealing

12 with sites. We're talking about unspecified surface waters,

13 unspecified beds, places like car washes. They mentioned

14 schools. They don't tell us which schools or what substances

15 or in what media there might be contamination. I get it.

16 THE COURT: But it's not as if you can't understand

17 what they're saying, right? I mean, when there's a complaint

18 that so vague and so lacking in detail that -- as some, for

19 example, single-spaced, handwritten, pro-se complaints, where

20 you read it and you go, I don't even know what the cause of

21 action is here, that's certainly a situation where it's fair

22 to say we need more information, we can't even file an answer.

23 But you know what they're saying, right? I mean,

24 there's no question here about what the claims are. You can

25 get those details in discovery, right? I mean --

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1 MR. GOTTLIEB: It --

2 THE COURT: -- why does it help any of us to have a

3 longer complaint than we already have?

4 MR. GOTTLIEB: Right. Because I think it actually

5 might be shorter, in the first place. Second, in some

6 respects it is intelligible and it meets that low standard.

7 And there's a number of locations, or types of locations, that

8 they assert have been injured that probably exceed the low

9 threshold.

10 In other instances, we're dealing with generalities,

11 at best. And as I said a moment ago, I believe the

12 information is already in their hands. So why? The question

13 is why do we need to -- why do we need to do it now, why do we

14 need to reform the complaint?

15 The answer is because we can bring enough precision

16 to it, with respect to the truly vague allegations, like

17 schools in general, or car washes or floor waxes -- we don't

18 even know if they made their way into the environment -- or

19 other types of general locations, like beds and sediments and

20 soils, to understand whether in fact:

21 A, they have stated an injury in fact, something that

22 it's incumbent upon them to do in order to bring a cause of

23 action for all of these claims: Groundwater Protection Act,

24 trespass, nuisance, the negligence count.

25 And B, so that we don't have a case that, for

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1 discovery purposes at the outset, unmanageable. And I think

2 Judge Teachout, in her opinion, is essentially setting up why

3 she was going through the analysis in parts that something to

4 the effect there's -- I have over 3,000 sites in this case,

5 and for purposes of case management and the use of judicial

6 resources, it's sensible to deal with this -- deal with this

7 now. She noted, I'll just quickly quote it --

8 THE COURT: Are you saying she ordered a more

9 definite statement or are you just talking about --

10 MR. GOTTLIEB: No, she -- what she did -- so with

11 that one -- and we should learn from what happened in that

12 case. Initially, she granted the motion to dismiss and gave

13 the State leave to amend. They amended, and I believe -- or

14 it may have gone to the Supreme Court first and then they

15 amended. But it came back on the amendment and then Atlantic

16 Richfield and the other oil and gas companies moved again.

17 And hence we had another go around with another complaint that

18 was deficient.

19 This was after -- this was later in the case. This

20 was following several years of discovery. So it basically

21 happened in a backward sort of way. They could have probably

22 solved the problem at the outset by trying to narrow the

23 pleadings in a way that made the case more manageable. And

24 that's what we're trying to achieve here.

25 And as to the point of it being unintelligible, I

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1 grant the fact that in some ways, while it's general, it's

2 certainly intelligible. But in other ways, in certain

3 paragraphs -- take, for example, I think its paragraph 182I,

4 where they talked about -- they talk about carwashes and

5 wildlife soils and sediments.

6 There's a number of paragraphs between 182I-A and 208

7 that are exceedingly broad. And I would ask the Court to take

8 a close look at those paragraphs to see if some of them can be

9 reformed so that we could actually plead intelligently and

10 then in addition, whether they've actually stated an injury in

11 fact.

12 THE COURT: Okay.

13 MR. GOTTLIEB: On the trespass point, Your Honor,

14 much of this discussion seemed to focus on control of the

15 instrumentality. However, there's another very important

16 element to that cause of action, and that's exclusivity of

17 possession.

18 And while the trustee may have some overlapping joint

19 custody, for lack of a better expression, over groundwater

20 that's underneath private property or some other resource

21 services, it can never have exclusive possession of those

22 resources. In instances where it doesn't, and we're not

23 talking about a state-owned land or a state park or other

24 piece of property or resource that the State has exclusive

25 ownership or possession in, they cannot have a cause of

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1 action.

2 Exclusivity as an element of trespass goes back to

3 the ancient common law. It's not a -- I don't think it's a

4 concept that's in debate. I don't think that was discussed,

5 or at least not highlighted, in the earlier discussion.

6 THE COURT: So you're talking about groundwater in

7 general, correct?

8 MR. GOTTLIEB: It could be groundwater in general.

9 THE COURT: I mean, is that what you're saying?

10 MR. GOTTLIEB: Well, yes, right.

11 THE COURT: Because it's groundwater and it's under

12 individual people's land; is that your point?

13 MR. GOTTLIEB: It would be. Now, I recognize that

14 under the Groundwater Protection Act, the State has a right to

15 proceed there under that statute. But it doesn't have a

16 right, for example, with respect to trespass because trespass

17 imposes a specific exclusivity outlet.

18 THE COURT: So you think the individual landowners

19 have the right to bring that action?

20 MR. GOTTLIEB: I think for -- I think for negligence

21 and --

22 THE COURT: No, but the nuisance claim.

23 MR. GOTTLIEB: -- and for --

24 THE COURT: I'm sorry, the trespass claim.

25 MR. GOTTLIEB: For trespass, I think an individual

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1 landowner would have right if they can show injury. But this

2 is not a case by an individual landowner. It's --

3 THE COURT: So what about their argument that as

4 essentially the trustee, they're like a trustee or an executor

5 of an estate or whatever, their job is to assert the claim of

6 the other person.

7 MR. GOTTLIEB: Right, but in those -- in the first

8 place, that's an analogy. Whether it's applicable or here or

9 when a private parties actually have exclusive possession and

10 property interest in that property itself, whether they can do

11 so. The public trust doctrine is not totally on all fours

12 with trusteeship in general, like the Restatement of Trust and

13 those areas of law.

14 But secondly, they run -- even if they have a right

15 as a trustee --

16 THE COURT: Um-hum.

17 MR. GOTTLIEB: -- they still have to meet the common

18 law elements of whatever claim they are bringing as that

19 trustee. And co-possession of trustee resource, like

20 groundwater -- groundwater, excuse me, doesn't vitiate that

21 element.

22 THE COURT: Okay, so who are you saying are the

23 co-possessors?

24 MR. GOTTLIEB: Well, you could have an instance like

25 Your Honor described where you have a property owner with

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1 groundwater --

2 THE COURT: Um-hum.

3 MR. GOTTLIEB: -- and then you have the State, which

4 has its own trustee interest, which co-possesses, so long as

5 the legislature, as in Mr. Berger's argument, defines that

6 groundwater is within trusteeship, you could have co-

7 possession.

8 THE COURT: But then you're saying that an individual

9 wouldn't be able to bring the claim either?

10 MR. GOTTLIEB: No, an individual -- in the --

11 THE COURT: Because the State co-possesses that

12 water.

13 MR. GOTTLIEB: Well, it's a good point, Your Honor,

14 but it's only in the trustee -- it's only in their trustee

15 capacity that they would have that co-possession. They have

16 other causes of action they could proceed under in that

17 instance, like the case where there's been a legislative

18 mandate, the Groundwater Protection Act.

19 So each would have their own protections: the

20 private landowner and the trustee. The trustee is not left

21 without a remedy. It has a remedy, a remedy that's been

22 legislated.

23 So it does create overlapping interests. But for

24 purposes of a common law cause of action, you can't use

25 trusteeship to vitiate and blow through that common law

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1 element. If the trustee has a right to bring a claim, it has

2 to meet whatever elements of whatever causes of action it says

3 it has in that capacity.

4 THE COURT: Okay, but I mean, if I am a trustee

5 representing -- or I am in some situation where I am

6 representing another person, right, they are unable to bring

7 the claim because of lack of competency for example, but they

8 live in the house, something's happened on their property, I'm

9 filing on their behalf because I have been appointed by the

10 court to represent their interests. All I have to show, under

11 what I'm hearing you say, is that they have exclusive control

12 over that land and that would be that element, right?

13 MR. GOTTLIEB: Yes, you're standing in their shoes in

14 that instance.

15 THE COURT: Okay. But if you're saying that the

16 State, by coming in as trustee, changes that because they also

17 have a separate claim based on a larger -- all the groundwater

18 is something the State worries about, wouldn't the fact that

19 they have that right still apply even if I'm just individually

20 bringing that claim?

21 MR. GOTTLIEB: Not for trespass because of the

22 exclusivity requirement. They could see another basis to have

23 a recovery.

24 THE COURT: But what I mean is they are just

25 standing -- their argument is we are just standing in the

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1 shoes of this person, so why are they different from any other

2 person standing in the shoes of that landowner?

3 MR. GOTTLIEB: Because they have a separate interest,

4 so they say in that trustee resource, which is in their --

5 THE COURT: But if they have that -- if they have

6 that interest, they have that interest, whether they are in

7 the case or not --

8 MR. GOTTLIEB: Well, I'm not entirely sure that --

9 THE COURT: -- which would mean it's never exclusive.

10 MR. GOTTLIEB: I'm not entirely sure they have that

11 interest. I set it up in a way to argue that's what they're

12 asserting, that they have a co-possessory interest.

13 THE COURT: Um-hum.

14 MR. GOTTLIEB: In fact, I think where you have --

15 let's take a situation where trees are on someone's property.

16 It's their -- the trees belong to them --

17 THE COURT: Right.

18 MR. GOTTLIEB: -- the trees are part of the biodata.

19 Those are their trees on private property. Subject to

20 ordinary regulations and whatever laws might govern the use of

21 that land, they have an exclusive right and an exclusive

22 possession. The trustee can't come in a vitiate that

23 exclusivity private property right. I think, and maybe I

24 assume too much, their argument is they have a co-possessory

25 interest, therefore they have a basis to overcome the

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1 exclusivity element. But they don't, because they are not a

2 private property owner.

3 So I would say with respect to state-owned lands and

4 lands that are exclusively within their control, that that

5 would be a different matter and they would at least,

6 essentially at the outset, meet the element.

7 I think Mr. Berger covered the other points with

8 respect to nuisance, both public and private, and I don't --

9 our papers speak at length about that.

10 THE COURT: He read every case, so he must have --

11 MR. GOTTLIEB: Pretty much. I think they were a

12 couple that they figured out that he might not.

13 So on that I will reserve my right to reply.

14 THE COURT: Okay.

15 MR. ALLAN KANNER: Good morning, Your Honor. Allan

16 Kanner.

17 Could I enjoy the same courtesy and just proceed from

18 here?

19 THE COURT: Yes, of course.

20 MR. KANNER: Thank you.

21 I'll just limit my remarks to what was raised by Mr.

22 Gottlieb. I want to talk about the public trust first and

23 foremost.

24 THE COURT: Um-hum.

25 MR. KANNER: He said it's only a standing doctrine.

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1 Our position is public trust is a substantive doctrine, a

2 substantive right. parens patriae is different. And that is

3 a standing doctrine.

4 You raised the question about what you need to do as

5 a Vermont trial judge about the public trust. I look at

6 Central Vermont Railway, Your Honor, and -- the defendants

7 have done a good job, both Mr. Berger and Mr. Gottlieb. I

8 think I counted eight times that he said ancient, very old,

9 traditional, in reference to --

10 THE COURT: I hope he wasn't talking about me.

11 MR. KANNER: About common law, as if --

12 THE COURT: Right.

13 MR. KANNER: -- the way the law developed, when the

14 most harm you could do to somebody else was throwing a rock at

15 them or throwing some trees in a stream, is where the law

16 ended and was to be permanently formaldehyded (sic).

17 What Central Vermont Railway tells us -- and it's

18 controlling authority for you, is to evolve the law "to be

19 molded and extended to meet changing conditions and needs of

20 the public it was created to benefit."..."The very purpose

21 (sic) of the public trust has 'evolved in tandem with the

22 changing public perceptions (sic) of the values and uses of

23 waterways."

24 So it's clear that you're being told, I feel, by the

25 supreme court to evolve this doctrines. And an evolution

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1 requires a full hearing on the facts, not sort of an attempt

2 to cut off a case at the beginning.

3 And what are we dealing with here? We're dealing

4 with manufacturers of a product they both knew was hazardous

5 while they were selling it and distributing it in interstate

6 commerce and targeting Vermont and selling to specific

7 locations in Vermont. That is a very different world than the

8 1400s. And courts around the country, in the PCB litigation

9 that Mr. Pawa noted, in PFAS litigation, in the MTBE

10 litigation, have said this is different and we've got to deal

11 with it as such.

12 And all we're asking is that it, at this point, we be

13 allowed to pursue those claims as a standalone claim.

14 Now, Mr. Gottlieb cites as authority the New Mexico

15 case for saying, no, it's just standing. That's exactly

16 wrong. And let me tell you why.

17 THE COURT: Can I back up for one second?

18 MR. KANNER: Sure.

19 THE COURT: What do you say to Mr. Berger's earlier

20 point that it's really -- even the Central Vermont case is

21 really in the context of, in Vermont, what they mean is it's

22 for the legislature to be the one that's expanding?

23 MR. KANNER: That is exactly wrong. I was shocked

24 when he said it. That was the case where a legislative act

25 was voided by the supreme court, a giveaway of the property.

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1 And they cited the Illinois Central case for that proposition,

2 which was also a legislative giveaway.

3 When it's in the constitution, a legislature can't

4 give it away. They may regulate to enhance and promote it,

5 but they can't -- you can't abdicate the public trust. It

6 doesn't really belong to the state. The state is a

7 fiduciary --

8 THE COURT: Um-hum.

9 MR. KANNER: -- to the public for the best interest

10 of that resource to be shared with the public.

11 So I would say the legislature in many cases, is

12 subservient to the court to the extent that they exceed their

13 authority, as they did in Central Vermont.

14 THE COURT: But that's a different question from

15 whether they are the ones that should initially be drawing the

16 lines.

17 MR. KANNER: No. The reason I say no is that the

18 public trust doctrine came to the State of Vermont with our

19 independence from Great Britain. And so we have basically

20 absorbed all the authority for the public trust that

21 previously vested in King George.

22 THE COURT: Is this mentioned in Hamilton anywhere?

23 Is there a song we can all sing?

24 MR. KANNER: I love that, Judge. I hope they do a

25 sequel called public trust.

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1 But it came over with Hamilton. And the input, the

2 legislature doesn't get to dictate it. The public trust is

3 before that point in time. The public trust was decided by

4 judges. And it was used as a trump card against the royal

5 prerogatives by people to say, hey, we're entitled to use land

6 for grazing. We're entitled to use this river for

7 transportation, to earn a livelihood. And it was the courts

8 who evolved it since the time of Justinian.

9 So I would not say -- there is nothing in the

10 Constitution that suggests that the legislature is the -- that

11 the courts have been divested of authority on public trust.

12 And really, the Central Vermont Railway case is a

13 perfect example of that. The supreme court was very

14 comfortable saying it's a public trust. And interestingly,

15 they cited both New Jersey and California cases, which are the

16 most progressive nationwide in terms of the public trust --

17 are generally deemed -- they have more, bigger estates, they

18 have more case law --

19 THE COURT: Um-hum.

20 MR. KANNER: -- they have more pollution issues, et

21 cetera. And I thought that was -- I thought that was a very

22 progressive sign, not a negative sign.

23 So the legislature has a role. In New Jersey, in

24 some of the beach access cases. Of course, either the

25 executive branch, through the Department of Environmental

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1 Protection, may pass regulations relative to the use of, say,

2 beaches. The legislature can pass some laws. So long as they

3 don't abdicate the essential public trust purpose, which is to

4 serve the public.

5 And it evolves over time. I mean, in the old days,

6 the original public trust didn't deal with recreational usage

7 at all. That was a new thing that showed some movement. In

8 New Jersey, it was beach access; here in Vermont, it was the

9 right of people to access lakes and for fishing.

10 People have a right, I think, to drinkable,

11 swimmable, fishable waters. And I think the public trust is

12 exactly where we find that protection.

13 THE COURT: Okay, thank you for answering that.

14 MR. KANNER: Okay, let me just -- the only other

15 thing I want to say about that is -- I just want to introduce

16 a concept from the public trust that will bear on the trespass

17 issue. And this is spelled out -- I think it's Matthews or

18 Borough of Neptune, New Jersey cases, that are cited in

19 Central Vermont Railway.

20 THE COURT: Um-hum.

21 MR. KANNER: There's a different -- the public trust

22 is called, going back to the Latin, the jus publicum. And the

23 private property is called the jus privatum. And one of the

24 things that courts consistently say is the jus publicum is a

25 superior interest to the private right. So the state can give

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1 land, say, to the railroad. But they can pull it back when

2 they realize that it's violating the public trust.

3 Courts, like Judge Smith, saying that the state had

4 the superior interest in finding a cause of action for

5 trespass, relied on the public trust. Implicitly, he didn't

6 say the words jus publicum. If you look at -- but that's

7 really what he was saying, is that's the superior interest.

8 Take groundwater. That is a public trust -- is a

9 public trust property. Of course we allow people to drink

10 water. But for example, if I had a piece of land, maybe this

11 analogy works, and I said to Mr. Berger, feel free to cross my

12 property to get to wherever you want to go, and then Mr.

13 Gottlieb shows up. Well, yes, I've given Mr. Berger a license

14 to use my property, that doesn't mean that I can't bring a

15 trespass action against Mr. Gottlieb when he shows up.

16 I think the public trust, as it is vested in the

17 state, the jus publicum will always trump the jus privatum. I

18 don't know that we gave -- we may have cited -- I don't know

19 if we gave you a copy. A trial judge in New Jersey, Judge

20 Mendez in Atlantic County, New Jersey recently said -- he

21 followed Judge Smith. He said because it's a public trust,

22 trespass has to exist. And a number of courts have done that;

23 otherwise, you can't really enforce it.

24 So that's my answer on trespass, which is

25 primarily -- this exclusive possession, it doesn't really bear

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1 when you're talking about jus publicum. What it really does

2 is -- you want to focus on the superior interest. And the

3 person with superior interest has a right to sue.

4 I would argue that the individual could bring a

5 trespass action as well if somebody came onto their property

6 and messed up their well water. And by the way, one of the

7 reasons the State sometimes sues for the money even though

8 it's individual wells that are affected --

9 THE COURT: Um-hum.

10 MR. KANNER: I don't think we should think

11 atomistically about each individual property and each

12 individual well. I think this came up earlier. It's an

13 ecosystem. And it's the job of the state to enhance the

14 ecosystem.

15 And so ideally, the money ought to go for the natural

16 resource restoration, which is the groundwater, as a whole.

17 If you gave it to each individual, they might spend it any way

18 they want. The State has the obligation, the fiduciary duty,

19 if it is, to preserve that ecosystem.

20 THE COURT: But isn't there a -- I mean, that's

21 certainly true for the public nuisance claim.

22 MR. KANNER: Yes.

23 THE COURT: Is it necessarily also true for the

24 private nuisance claim?

25 MR. KANNER: I believe so in this case. The thing

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1 with ecosystem restoration is there has to be a coordinated

2 effort on the restoration. If --

3 THE COURT: I mean, that makes sense from a sort of

4 broad thinking about the policy standpoint. But from a legal

5 standpoint, what do you cite for that? Those are two

6 different things.

7 MR. KANNER: Well, it's not just policy, it's

8 efficiency in terms of managing resources. It's a way of

9 doing it. But to your point, as Mr. Pawa said, obviously, if

10 people have loss-of-use claims, that belongs to them. The

11 State doesn't really have an interest in representing

12 individual loss-of-use claims. With respect to -- there are

13 economic damages. There are personal injuries, et cetera.

14 But to the extent that they have a claim because

15 there's contamination in their water, and their ability to

16 drink it is diminished, as opposed to maybe their property

17 values, then that functionality of the resource is something

18 that the State has the parens patriae authority to protect.

19 And it also has the public trust responsibility to protect.

20 It's narrow as it relates to private nuisance --

21 THE COURT: But the landowner could also bring that

22 same claim, right? I can't drink my water; I have to go by

23 bottled water.

24 MR. KANNER: That's an economic loss, they can bring

25 that claim.

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1 THE COURT: Right. So but doesn't that -- so you can

2 have both the State and the individual essentially raising the

3 same claim in two separate cases?

4 MR. KANNER: They are different claims. The

5 individual is complaining about going to the store and having

6 to buy the water. The State is saying, we've got to restore

7 that ecosystem. That's what the State wants to do. And

8 that's going to benefit the individual at some point. And

9 it's not going to benefit the defendants because it's going to

10 cut off the economic damages when you've achieved restoration.

11 And again, it's true that in Vermont, there haven't

12 been a lot of cases like this. And this goes to the motion

13 more definite statement.

14 In Vermont v. Atlantic Richfield, there was not a

15 more definite statement case. It was summary judgment -- it

16 was a statute of limitations issue. In that case, the supreme

17 court said you waited too long.

18 So okay, along comes PFAS and in 2018, the

19 legislature says you, VNR, have come up with enough

20 information that we believe it is ubiquitous and you must

21 undertake a statewide testing program. Within months of that

22 time, we filed a lawsuit.

23 Now, clearly, they have no problem in defending

24 against -- we've identified a lot of sites, one. Two, we

25 intend to have them pay for that testing program. That's one

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1 of our claims of damages and a very important claim for

2 damages.

3 Like you said with the auto example, the auto court

4 example --

5 THE COURT: Um-hum.

6 MR. KANNER: -- if Mr. Gottlieb rear-ends me and my

7 doctor says, look, the prudent thing is to go get an MRI to

8 see if you suffered a concussion or something -- I don't know

9 how you do that, but let's -- and it turns out positive; I

10 don't have a problem. Well, he still has to pay for the MRI

11 because it was a reasonable thing to do under the

12 circumstances, just like this sort of systemic testing that

13 has now been ordered by the State.

14 So we do have additional information --

15 THE COURT: But you'd have to prove you were injured

16 first.

17 MR. KANNER: Yes, correct, correct.

18 THE COURT: And that's part of his point, is what are

19 your injuries here, you haven't told us.

20 MR. KANNER: Okay. So just to finish the thought.

21 THE COURT: Yeah.

22 MR. KANNER: And then I'll get to injury.

23 Point two -- no, let me just get right to the injury.

24 What we showed -- he says it's not enough that our PFAS is in

25 your water. He clearly said that. He said that's not an

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1 injury.

2 I would argue that it is. Our definition of injury

3 is everything above baseline; a chemical change in the natural

4 resource of the state is sufficient to trigger injury.

5 THE COURT: Even if it's under the twenty?

6 MR. KANNER: Yes, absolutely.

7 THE COURT: Okay.

8 MR. KANNER: NCLs are not a license to pollute. They

9 don't excuse to excuse misconduct by anybody. And if you

10 think about if from just a resource point of view, if somebody

11 contributes, say, 19.9 parts per trillion of PFAS to the

12 waters of the state, I think anybody would agree -- any

13 scientists would agree, the experts will agree, that that just

14 makes that a more precarious and fragile resource, at which

15 point you then have to worry about the synergistic effect of

16 other chemicals in there. You have to worry about --

17 And so the resources --

18 THE COURT: But how would you prove -- if there's

19 somebody saying twenty, we've decided, is safe. How would you

20 prove actual injury if there's no evidence that it's harmful?

21 MR. KANNER: MCLs don't provide that things are safe,

22 Your Honor. The MCL process involves a lot of -- a review of

23 a lot of issues, a weighing and balancing of numerous

24 concerns.

25 We have talked -- the former head of, I think, the

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1 National Health Service was suggesting that if you just did it

2 based on science, the numbers could be as low as .01 parts per

3 trillion. If you did it just based on purely health.

4 Most of these MCLs involve weighing and balancing and

5 what's feasible, et cetera. But most courts have held that

6 any alteration of the ecosystem is actionable.

7 I don't think we have to decide that today for

8 purposes of this motion. The only question today is do we go

9 forward. And one of the reasons we'd like to go forward is to

10 help Mr. Gottlieb. Mr. Gottlieb says, I need more

11 information. The truth is, and we see this in the MTBE

12 decisions -- Judge Kugler in New Jersey said the -- you tell

13 him the water bodies, but the defendants have to tell you

14 where they put this stuff.

15 So just in our complaint, we talk about ChemFab

16 receiving product from DuPont and then it getting into the

17 ecosystem. Who else did you sell to in Vermont? Who else did

18 you distribute to in Vermont? Because we would prioritize

19 those for purposes of our statewide testing and investigation

20 program ordered by the legislature. We would want to

21 prioritize those sites, obviously.

22 And so we'll go through a process of discovery. We

23 will give them everything we have. They will give us

24 everything they have. And eventually, it will be given to

25 experts, who will prepare their reports under some sort of

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1 deadline that Your Honor sets up; let's get this done by X

2 point in time.

3 And at that point, we'll say these are our damages,

4 as it relates to natural resources. They would have had a

5 full and fair opportunity to look at all of that and have

6 their own experts review that material.

7 We would know the cost of our testing program. We

8 would ask that for a lump-sum number. If continued testing is

9 required, we can then -- they will have information as to what

10 we estimate that to be.

11 THE COURT: No, I understood. But Mr. Gottlieb's

12 point is why can't we narrow this now if you tell us what is

13 your claim as to this particular landfill? What are the

14 numbers? Do you actually have evidence that that location is

15 a problem?

16 MR. KANNER: Well, the statute of limitation is in

17 hold while we investigate. I mean, we're on notice at those

18 sites and we don't want a repeat of what happened in Vermont

19 v. Atlantic Richfield.

20 We had given -- at the time we filed the complaint,

21 we gave Mr. Gottlieb what we had. Since then, we have been

22 getting more information and additional sites. And that

23 information will all be provided.

24 But it makes no sense in terms of the ultimate

25 resolution of this case to have us keep rewriting the

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1 complaints -- the second amended complaint. Because by the

2 time we get the second amended complaint in, he's going to

3 have some complaints about that.

4 And then the third amended -- he'll want a third

5 amended complaint because we'll have more information. And

6 yet we'll have never taken any discovery of his client, in

7 terms of what they know.

8 It really takes two to tango on something like this.

9 And discovery --

10 THE COURT: Right, but you're also -- I mean, you are

11 supposed to have enough information to support your claim when

12 you file the case, not to just file it and then see what you

13 can find.

14 MR. KANNER: Well, I want to be very precise here.

15 We have hard evidence of contaminated sites in the state. I

16 don't think anybody is disputing that.

17 The legislature, and they say the legislature has a

18 big role in protecting the natural resources of the state, has

19 said we feel it's ubiquitous and we need a statewide testing

20 program accordingly.

21 And we are implementing that program. And we tried

22 to give as much information as we had in our complaint. And

23 remember, a more definite statement of motion is for things

24 that are unintelligible. And it's not about what's most

25 pragmatic. I mean, it's intelligible enough for them to file

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1 a motion to dismiss. They know what the case is about.

2 So I was recently in court on behalf of the State of

3 New Jersey against Exxon. And they asked for a more definite

4 statement, just like Mr. Gottlieb is asking, and the court

5 said, look, this is for discovery. You're going to sort --

6 pollution is very hard to figure out.

7 I'll give you another example. We filed a suit -- I

8 represented Louisiana in the Deepwater Horizon case. We filed

9 suit right away because we knew that there was problems, but

10 we hadn't counted all the pelicans that were dead and many of

11 them that had fallen in swamp. And there were extensive

12 studies about how much pollution got where and what little --

13 you don't know what all the fish eggs are like, when they're

14 on top -- when there's a sheen, they all get wiped out. I

15 didn't even know that when the case started.

16 THE COURT: And now I know, too.

17 MR. KANNER: That's right, exactly. I like to share.

18 And there's just this gap, I think, in any of these

19 environmental cases. Every case -- I will say almost every

20 case, the parameters of the injury and damage is often worked

21 out during the case because if you knew everything -- I can't

22 imagine a situation where you would know everything at the

23 front end. Maybe --

24 THE COURT: No, I understand your point. But the

25 rules are the same for environmental cases as for any other

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1 cases, right? I mean, I still have the same rules to apply.

2 MR. KANNER: True, you do. And if Your Honor says I

3 think the case is intelligible for you to have filed a motion

4 to dismiss -- because I usually get a motion for a more

5 definite statement or a motion to dismiss. It seems a little

6 odd to get both in the same case because the more definite

7 statement usually says it's unintelligible.

8 And I could understand where, given certain types of

9 cases, it might be unintelligible to a judge: pro se

10 complaints, cases that require specific allegations. They

11 talk a lot about the McDonald's case. You have to know about

12 the architectural details under the discrimination act, which

13 is --

14 THE COURT: ADA.

15 MR. KANNER: ADA. You have to know those in order to

16 bring the suit. And so yeah, if somebody files a class action

17 against all the McDonald's franchise owners, they don't really

18 have that information. They can't make that allegation. That

19 may be a cause for more definite statement.

20 But here, I think, they have enough information about

21 the pollution. They're answering the same cases all over the

22 country. They're being sued in New Jersey, New Hampshire,

23 Vermont, Michigan, Ohio.

24 I think they have a pretty good idea of what the

25 general allegations are. And as it relates to Vermont, they

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1 probably have better information than the State does right now

2 on some of the locations we ought to be looking at.

3 And so for that reason, I think Your Honor can

4 conclude, look, it's certainly intelligible enough. I mean,

5 3M didn't file a motion for a more definite statement; they

6 just went straight to the motion to dismiss.

7 And so --

8 THE COURT: I get your point.

9 MR. KANNER: Okay. I did want to go back to the

10 standing issue for just a second.

11 THE COURT: Yeah.

12 MR. KANNER: If you read footnote 30 on New Mexico v.

13 General Electric, I think it says exactly what we've been

14 saying. There the Tenth Circuit is saying, "The State",

15 referring to New Mexico, "makes much ado over a supposed

16 ability to pursue this action not only in its capacity as a

17 public trustee of the State's groundwaters" -- which the Tenth

18 Circuit agreed they were a public trustee -- "but also as

19 parens patriae to repair harm to the 'quasi-sovereign'

20 interest in those groundwaters."..."The doctrine of parens

21 patriae is a standing concept rather than one of substantive

22 recovery." A doctrine does not -- "The doctrine does not

23 create any cause of action." This is referring to parens

24 patriae.

25 THE COURT: Um-hum.

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1 MR. KANNER: "Rather, the doctrine may provide a

2 state with standing to sue for a damages to a broader range of

3 natural resources because it does not require state ownership

4 of such resources." And then they cite my law review article,

5 the trust. But the court clearly recognized in that case that

6 public trust is not -- is a substantive right. Whereas parens

7 patriae is different.

8 And they said that there are reasons why a state

9 might want to use both because they felt, in that case -- and

10 I'm not saying it's the law in Vermont, but they said in that

11 case, well, you have to have the state ownership of the

12 resource to be the trustee.

13 And here, at least with respect to groundwater and a

14 number of other -- we're certainly the owner of that.

15 And by the way, in terms of injury, I think that

16 there were -- we also cited a few other statutes that define

17 what natural resources of the state are. And those are the

18 ones that we've talked about in our complaint.

19 But in New Mexico, and I think in Hess, they also

20 understood public trust as being a standalone right. And the

21 quasi-interest sovereign of parens patriae is going to be --

22 is a different -- is different, and may, in certain

23 situations, be broader. Since we don't know at this point how

24 it's going to be construed here in Vermont, in terms of the

25 scope of natural resources, the prudent thing is to allege

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1 both.

2 And I think that we've identified all of the elements

3 for all of the claims that we've made in this complaint.

4 THE COURT: But there are very few cases that

5 actually talk about this issue, right? I mean, you've cited

6 Hess and the New Mexico case. It's not -- apparently, it

7 hasn't come up a lot.

8 MR. KANNER: Yeah, well, it has not. And I would

9 submit that you've gotten citations to a lot of cases --

10 THE COURT: Yeah.

11 MR. KANNER: -- on the public trust. One of the

12 things that I think I figured out in the context of reading

13 all these cases when I was writing the article was law is not

14 always elegant. I mean, judges try to fit cases in cubbyholes

15 and they're not always -- sometimes they talk past each other.

16 This is the evolutionary process of the common law.

17 For example, in Maine v. MV Tomaso, the federal court

18 in Maine said -- this is nearshore spill of oil -- said oh,

19 this is parens patriae. In Ameranda Hess, Maryland v.

20 Ameranda Hess, nearshore spill of oil, they said, this is

21 public trust.

22 I mean the case law will eventually get to that

23 point. But I do think that the language that some judges use

24 is part of the evolutionary nature of common law.

25 I think that sitting here in 2020, you can appreciate

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1 that. And you can also appreciate the fact that as cases like

2 this, like the MTBE litigation that was handled in Rhode

3 Island or New Hampshire, as those cases come along, judges are

4 getting better and better at applying and thinking through

5 what they've learned from that evolutionary process in terms

6 of defining natural resource damages, or as we say, natural

7 resource restoration -- here in Vermont, that's a standalone

8 cause of action -- and understanding the full scope of parens

9 patriae. And so at this stage, I think there's clearly enough

10 information in our allegations to answer.

11 Obviously, down the road, Your Honor is going to have

12 to make some legal decisions. Frankly, these are decisions --

13 because some of them are relatively novel, they are better

14 assessed by a court if you have a factual record in front of

15 you.

16 I mean, we've talked today about what the legislature

17 has done, et cetera. I would humbly suggest that this is a

18 case that ought to develop a little bit more. We've gotten

19 over that very minimum threshold that the State puts out

20 there. And we should get to the -- we should get more

21 information in.

22 They can file summary judgment motions if they think

23 it's appropriate and --

24 THE COURT: I'm sure they will.

25 MR. KANNER: They will, they will. And that's

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1 probably when Your Honor, with a much better record, will be

2 making -- you're going to be taking a position on the

3 evolution of the public trust doctrine here in Vermont

4 consistent with the mandate and instructions of the Supreme

5 Court of Vermont in the Central Vermont Railway case.

6 And I suggest that we do it on more of a record and

7 you have enough -- we have enough allegations here, I think,

8 to go to the next step.

9 THE COURT: Thank you, very much.

10 MR. KANNER: Thank you.

11 THE COURT: Mr. Gottlieb.

12 MR. GOTTLIEB: Yes, so let me start where Mr. Kanner

13 almost finished; the public trust doctrine.

14 The issue of the public trust doctrine is essentially

15 a jurisprudential issue. We don't need more facts to

16 determine whether a cause of action exists. And Mr. Kanner

17 says, the State says, that it's an evolving concept. I'm not

18 so sure it's been evolving. The Court can evaluate whether

19 the doctrine has been evolving in terms of transforming it

20 from a basis of standing into a substantive cause of action by

21 examining the cases.

22 However, what I will say is a matter of judicial

23 prudence, if that's not an oxymoron in terms of

24 jurisprudential. If they have causes of action already, which

25 enable them to obtain relief for the alleged resource service

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1 losses and other damages they assert exist, there's no reason

2 to create a new cause of action.

3 They don't even dispute the fact that in essence,

4 subject to one or two cases they cite, it would be a new cause

5 of action in Vermont. They cite, well, at least the New

6 Hampshire v. Hess case to say it's been recognized there. I

7 don't think they go as far as saying Amerada Hess in Maryland

8 or the Ohio case they cite or other cases actually recognize

9 it as a new cause of action.

10 They'd say they come close by recognizing the state's

11 right to proceed as a public trustee. And of course, the

12 right to proceed as public trustee is a standing concept, not

13 a substantive concept, as to a cause of action.

14 So right now, with respect to whether there's a cause

15 of action as a public trustee per se, whether that gives

16 rights --

17 THE COURT: Um-hum.

18 MR. GOTTLIEB: -- to seek a remedy on a standalone

19 basis, I don't think the Court needs any more of a record to

20 determine whether that's a cause of action.

21 And it shouldn't extend the doctrine when there's

22 already relief that's available through other causes of action

23 and means for them to proceed. So that's number one.

24 Number two, it's an interesting exchange concerning

25 the advisory standards and how we know whether there's injury

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1 or not.

2 THE COURT: Right.

3 MR. GOTTLIEB: And of course, you have to have injury

4 to have a cause of action. That's a fundamental element of

5 all torts.

6 It's as if -- and Mr. Kanner says, well, the MCL, the

7 advisory standards established by the state, don't matter

8 because any offense, any offense of any sort, where somebody

9 may be hurt, is enough to establish a cause of action.

10 So it's as if someone fell today in front of the

11 courthouse. And I went over and picked them up and I said,

12 are you okay? And they said, oh yeah, I'm fine. And they

13 brushed themselves off and walk away.

14 They may have fallen. And there may have been ice on

15 the front steps of courthouse, but they weren't injured.

16 Injury matters. It makes a difference.

17 In fact, we cited the A and R regs --

18 THE COURT: I don't think he's disputing that. But

19 he is arguing with what I thought you were saying, which was

20 if it's not above twenty, it's not an injury.

21 MR. GOTTLIEB: If it's not below twenty. He's saying

22 above twenty, it would be.

23 THE COURT: Right, but is that what you're saying

24 that that's --

25 MR. GOTTLIEB: I am saying it --

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1 THE COURT: -- the cutoff, legally?

2 MR. GOTTLIEB: I'm saying that's the cutoff. And

3 then --

4 THE COURT: And what are you citing as a basis for

5 that?

6 MR. GOTTLIEB: There's the A and R regs themselves --

7 THE COURT: Which say what, exactly? What's the

8 language, in the sentence of them?

9 MR. GOTTLIEB: They essentially say -- and of course,

10 I'm drastically paraphrasing -- how you go about establishing

11 whether there's an injury. And the State's own setting of the

12 advisory standing, both for health purposes, for drinking

13 water and groundwater, establish where they think injury

14 occurs because without --

15 THE COURT: But that doesn't mean someone couldn't

16 prove that injury actually occurs at a lower level, right? I

17 mean, unless it says -- unless there's something that flatly

18 says you are not injured if it's below twenty.

19 MR. GOTTLIEB: That's a fair point, Your Honor, but

20 at some point, you have to have a benchmark for where injury

21 and damage occurs.

22 THE COURT: But isn't that something -- I guess the

23 question is unless there's something clear that says you

24 cannot be injured if it's below twenty, I can't grant a motion

25 to dismiss on that point.

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1 MR. GOTTLIEB: Well, is the State saying that people

2 are still at risk if they are drinking water, for example,

3 that's below twenty? I think they've used a cautionary

4 principle --

5 THE COURT: Right, but you're asking me, at this

6 stage -- if I'm dismissing the case, saying they can't

7 possibly succeed on that, I would need something concrete that

8 they can't prove injury under twenty. That's all I'm saying.

9 MR. GOTTLIEB: Well, at what point do we know whether

10 injuries occurred? Is it enough to just allege that at some

11 amorphous location, some generalized place, an injury occurred

12 because PFAS may be in groundwater or may be in drinking

13 water?

14 They've set the standard. If that standard hasn't

15 been met, it seems to me it's tantamount to an admission that

16 there's been no injury. I mean, they are the ones who have

17 set the standard and put the public on notice. So I think we

18 have a right to rely upon that.

19 The other thing I wanted to point out in connection

20 with that advisory standard is -- and Mr. Berger reminded me

21 of this. The State issued a press release on December 20th,

22 2019 regarding their testing of noncommunity transitory

23 drinking water wells.

24 They only identified three sites out of hundreds

25 where they had exceeded, on a sum basis, the twenty PPT.

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1 There were -- and I understand that's being updated on

2 essentially a daily or a weekly basis, so there may be three

3 or four more sites that reported.

4 But it strikes me as important in terms of figuring

5 out whether the complaint should be revised so that we have a

6 more definite statement of where there's been injury and

7 damage to take into account, which the State has in its hands,

8 whether in fact they've exceeded their standard.

9 If they haven't, and we have sites where there may be

10 zero, literally zero, at a twenty parts per trillion basis of

11 measurement, then I think we can pretty much say there haven't

12 been injuries.

13 And if they discover injuries later on, I guess they

14 could amend again. But it seems to me they are going through

15 the process of vetting out where there's injury and where

16 there isn't injury.

17 Mr. Kanner also mentioned what he seemed to think was

18 an inconsistency between a motion for more definite statement

19 and a motion to dismiss.

20 THE COURT: Um-hum.

21 MR. GOTTLIEB: Well, obviously, there's some overlap

22 because sometimes a cure to a motion to dismiss is dismissing

23 the complaint without prejudice and allowing the plaintiff to

24 amend in light of the court's ruling.

25 Here, though, we have two different categories of

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1 things that are before the Court. For example, their Count I

2 in the public trust doctrine; we don't need to know anything

3 about advisory levels or injuries we just need to know

4 whether, as a matter of law, they can plead a cause of action

5 that seems to be novel at best.

6 Or for example, the exclusivity purposes -- the

7 exclusivity element for trespass. That has nothing to do with

8 the injury, per se. In fact, I think for trespass, you don't

9 even need injury, you just need an invasion of somebody else's

10 property.

11 So in that instance, there is -- there is a

12 distinction with a difference between what we did. And the

13 motion for more definite statement is essentially focused on

14 some of those more peripheral and vague allegations that have

15 no place in mind at all, they just seem to be broad categories

16 of types of things that may have been done.

17 THE COURT: Understood. And we allow argument in the

18 alternative, so I understand your point.

19 MR. GOTTLIEB: Yes.

20 And Mr. Berger also wanted me to point out with

21 respect to the scope of trusteeship in his -- I believe this

22 is in his reply brief. He pointed out that the supreme court

23 has explained that Vermont's public trust doctrine is

24 entrenched in Vermont's Constitution provision granting

25 Vermont the citizens -- excuse me -- granting Vermont's

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1 citizens the right to fish in all boatable and other waters,

2 not private property, under proper regulations to be made and

3 provided by the General Assembly. The point being, I think,

4 that there are limitations as to what's within the public

5 trust itself. And those are determined by the legislature.

6 I would like the Court to -- I'm not going to go

7 through it at length. I invite the Court to study carefully

8 footnote 30 and the rest of the New Mexico v. General Electric

9 case. The same fallacy is being sort of advanced here about

10 what that court and other courts are saying. They recognize

11 that the state certainly has the right to act as a public

12 trustee, but not a substantive cause of action. That seems to

13 be sort of the disconnect between our side of the case and the

14 State's side of the case.

15 THE COURT: Well, he's suggesting that footnote 30

16 does make that very distinction, that it's saying standing

17 applies to one. They don't say that as to the other.

18 MR. GOTTLIEB: Well, I interpret the footnote

19 differently.

20 THE COURT: Okay.

21 MR. GOTTLIEB: And even as I heard him read it --

22 THE COURT: I can't wait to go read it.

23 MR. GOTTLIEB: Pardon?

24 THE COURT: I can't wait to go read it.

25 MR. GOTTLIEB: It's a long footnote. And I was

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1 involved in that case as well, so I think I understand what

2 the court was doing. But the court's opinion will stand on

3 its own.

4 THE COURT: Okay.

5 MR. GOTTLIEB: With respect to this sort of merry-go-

6 like -- merry-go-round-like specter that Mr. Kanner pointed

7 out, well, we'll amend and they'll come back and say this, and

8 we'll amend again and they'll say that.

9 THE COURT: Um-hum.

10 MR. GOTTLIEB: Well, of course, the Court can control

11 that. If the Court finds that there are deficiencies in any

12 complaint that can be cured, they should be cured. The

13 plaintiff should align and do whatever needs to be done to

14 make sure it is cured. And then they should come back with a

15 complaint that's satisfactory.

16 And if a defendant should seek a move to dismiss

17 again, the Court could control what it does with respect to

18 whether the amendment was sufficient. Sometimes that happens;

19 I will admit that. Sometimes parties get it right. But the

20 specter of it happening is not an excuse to allow a complaint

21 that has vagaries or insufficiency that can be cured to go

22 uncured so that we can figure it out later.

23 THE COURT: Although, you just said a minute ago, if

24 they do more testing and they find out more, they might have

25 to amend again. I mean, it's going to be an ongoing process.

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1 MR. GOTTLIEB: Right, but as to what --

2 THE COURT: So couldn't that just lead to, under your

3 theory, that they need to be specific about each one as they

4 learn more? How many amendments are we going to have here?

5 MR. GOTTLIEB: Well, we're not -- I don't know how

6 many amendments we're going to have. Hopefully, there would

7 only be one. And hopefully, we excise out the sites where

8 they know there's been no injury. That's --

9 THE COURT: But what about the ones they don't know

10 yet?

11 MR. GOTTLIEB: Well, then maybe those stay, Your

12 Honor. Maybe it's enough for them to say injuries in the air;

13 there's a slippery fault -- there's a slippery floor. We

14 don't know if anybody is going to fall on it, but we know it's

15 slippery. But it's not enough for ones where they know, hey,

16 there's a slippery floor and no one fell, no one was hurt,

17 there's no injury.

18 THE COURT: Understood.

19 MR. GOTTLIEB: Just making sure I have hit all the

20 points.

21 And last thing, what's happened in other states with

22 respect to allegations, and we don't know what levels of

23 contaminants there may have been. We don't know the exact

24 nature of the allegations in those cases.

25 What's important, and what should be important, is

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1 what's before the Court in this case, not what might have

2 happened in an ongoing action in another case.

3 That's all I have, Your Honor. Thank you, very much.

4 THE COURT: Thank you.

5 MR. KANNER: May I give you just one cite?

6 THE COURT: Yes.

7 MR. KANNER: I'm not going to do a --

8 THE COURT: Go ahead.

9 MR. KANNER: -- full reply, but the Second Circuit

10 MTBE case, which is cited in the briefs, is basically where I

11 borrowed the line about MCLs not -- is not a license to

12 pollute. The Second Circuit rejected that argument.

13 THE COURT: What's the case?

14 MR. KANNER: It's the in re MTBE, the Second Circuit

15 one. I don't know if we have a page reference to it, but

16 we'll include that maybe in the letter.

17 But that court -- Exxon Corporation was there arguing

18 that they couldn't be sued; it wasn't an injury if it was

19 below the MCL. And the reason for that is that the trustee

20 has to decide about natural resources, but that's different

21 from the nontrustee regulators deciding what is a cost-benefit

22 analysis, fair, reasonable level to have in drinking water.

23 And so I would commend at least that decision to Your

24 Honor on that point.

25 THE COURT: Okay, thank you.

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1 MR. GOTTLIEB: Your Honor, just one --

2 THE COURT: Yep.

3 MR. GOTTLIEB: Super quick.

4 THE COURT: Yeah.

5 MR. GOTTLIEB: If they do submit a -- make a

6 supplemental submission, a short one, we would just like to

7 reserve the right to make a short reply as well after we read

8 what they --

9 THE COURT: Are you talking about a reply or just a

10 list of cases?

11 MR. GOTTLIEB: Yeah, just a list of the cases.

12 MR. KANNER: Okay. I didn't understand that.

13 THE COURT: Which I had requested earlier.

14 MR. GOTTLIEB: Yeah.

15 THE COURT: I think that would be easier. I've got

16 plenty of free time, thank you.

17 Okay. Who is up next?

18 UNIDENTIFIED SPEAKER: May I step out briefly? I'm

19 not arguing this one.

20 THE COURT: Of course, yes. Does anybody else need a

21 break before we continue? I'm happy to take short one.

22 Yes?

23 UNIDENTIFIED SPEAKER: But I don't need to hear this.

24 I can --

25 THE COURT: Does anyone who wants to stay need a

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1 break?

2 Okay. Go ahead then. And just state your name, if

3 you would.

4 MS. KATHERINE HACKER: Good morning, Your Honor. Kat

5 Hacker from Bartlit Beck on behalf of Corteva and DuPont de

6 Nemours, Inc., which you often see referred to as New DuPont.

7 THE COURT: Right, I made myself a chart. I was

8 having trouble.

9 MS. HACKER: I have a whiteboard with a chart in my

10 office to help remember everything.

11 These two companies have a separate motion to dismiss

12 the claims pending against them. The issues that are unique

13 to them are pretty simple --

14 THE COURT: Um-hum.

15 MS. HACKER: -- so I'll keep this short. To the

16 extent that we joined in DuPont's motion, we join in Mr.

17 Gottlieb's capable argument today.

18 So the issues unique to these two companies. There

19 are three basic ways the State can hold Corteva and New DuPont

20 liable in this case. The first is direct liability, of

21 course. The second being piercing the corporate veil. And

22 the third being successor liability.

23 On the first, just based on the facts alleged in the

24 State's complaint, neither of these entities were created

25 until years after 2013, when the State itself says the

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1 manufacturer of these PFAS chemicals ended. So there can't be

2 direct liability against them.

3 On the second, the State admits in the first

4 paragraph of its response to this motion it's not trying to

5 pierce the corporate veil to get to Corteva, which, of course,

6 just became the parent of Historic DuPont last year.

7 So the only thing the State is left with is successor

8 liability. But even the State admits in its response to this

9 motion that typically the rule is a successor is not liable

10 for liabilities of a predecessor unless there's a merger or

11 consolidation. That's, of course, not what we had here.

12 So now the State has to show that this case fits some

13 enumerated exception to that general rule. In its response,

14 the State says the Corteva and New DuPont expressly or

15 impliedly assumed Historic DuPont's liabilities to try to fit

16 that one exception to the typical successor liability rule,

17 but there's no such explanation in the complaint.

18 THE COURT: I thought they quoted in their

19 response -- they quoted a specific allegation in the

20 compliant?

21 MS. HACKER: I think the closest they get in the

22 complaint is paragraph 6, Your Honor, which simply says that

23 these companies have succeeded to DuPont PFAS liability. It

24 doesn't say whether they expressly or impliedly assumed the

25 liabilities, what agreements, where these companies assume

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1 those liabilities. And all of those are public documents.

2 The corporate documents that detail the formation of these

3 entities are attached to SEC filings. The State doesn't go

4 through those and try to put any meat on the bones of these

5 allegations.

6 We recognize what Your Honor has already said today,

7 that the pleading standard here in Vermont is exceedingly low.

8 THE COURT: Um-hum.

9 MS. HACKER: We also agree with Mr. Gottlieb that

10 it's not baseless. The first time we understood the State to

11 try to be alleging successor liability in this case was in

12 response to this motion.

13 Overall, naming these two entities --

14 THE COURT: Can I ask you a question?

15 MS. HACKER: Of course.

16 THE COURT: What I was looking for that they quote, I

17 think, is paragraph 30 of the complaint, where they say New

18 DuPont retained assets in the specialty products business

19 lines as well as the balance of the financial assets and

20 liabilities of Historical DuPont. Isn't that a little more

21 specific? I mean they're saying they specifically took on the

22 liabilities.

23 MS. HACKER: Yeah, we don't see any detail about how

24 they took on and what specific liabilities --

25 THE COURT: Okay.

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1 MS. HACKER: -- whether it was PFAS liabilities --

2 THE COURT: So if they could back that up with some

3 documentation, it would be adequate?

4 MS. HACKER: Exactly.

5 THE COURT: Okay, great.

6 MS. HACKER: That's all we're asking for, Your Honor.

7 THE COURT: You're just saying it's not specific

8 enough?

9 MS. HACKER: Exactly.

10 THE COURT: Okay. If naming these entities is an

11 unnecessary complication, as you'll hear in more details when

12 we deal with the fraudulent transfer claims, it requires

13 separate counsel, myself, to be involved in addition to the

14 attorneys from McCarter and English, who also represent DuPont

15 and Chemours jointly.

16 As far as we can tell, the only reason the State has

17 named these defendants is to add some extra pockets here to

18 try to make sure it can collect if it wins at the end of the

19 day. We don't see a substantive --

20 THE COURT: Not a bad plan for plaintiff; would you

21 agree?

22 MS. HACKER: Sure. But we don't see a substantive

23 reason these defendants should be here. And it was

24 interesting to me that Mr. Kanner mentioned tolling a while

25 ago in response to some argument.

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1 We've actually tried to be reasonable and offer into

2 tolling agreements to offer the plaintiffs that protection

3 that they want so that we don't waste the unnecessary time and

4 expense of getting dragged along this case along the way,

5 which we heard mention of a potential interlocutory appeal

6 today.

7 I think everyone here can agree it's going to be a

8 long, protracted, complex case. So at the end of the day, I'm

9 not quite sure why the State is unwilling to enter a tolling

10 agreement. We haven't heard any other reason it needs these

11 entities in this case other than the smart reason of adding

12 some more pockets. That's their choice, but they still have

13 the burden of alleging a case for successor liability and --

14 THE COURT: So does your argument really come down to

15 Mr. Gottlieb's argument that it's just not specific enough and

16 they should have to replead to support that allegation?

17 MS. HACKER: Absolutely, Your Honor. If we had some

18 more detailed allegations of how they think these companies

19 have impliedly or expressly assumed liabilities, we'd know

20 what we're going to be shooting at, but we have no idea right

21 now.

22 Frankly, we don't think these companies --

23 THE COURT: Although you have that information,

24 right? I mean, you presumably have all the documents that

25 would be relevant to that question.

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1 MS. HACKER: And based on that information, we don't

2 believe these companies have assumed liability --

3 THE COURT: So isn't that an easy summary judgment?

4 MS. HACKER: -- so that's our concern.

5 THE COURT: Sorry. Isn't that an easy summary

6 judgment motion then, for you?

7 MS. HACKER: Well, and we'd like to see that detail

8 on the compliant so that we can file that easy summary

9 judgment motion.

10 THE COURT: Okay.

11 MS. HACKER: But for all these reasons, we ask the

12 Court to grant the motion to dismiss against Corteva and New

13 DuPont.

14 THE COURT: Thank you.

15 Who is responding to this?

16 MR. KANNER: I'm up, Your Honor. So the only thing

17 we were seeking is successor liability. And so basically the

18 case law allows successor liability. It's generally not the

19 rule, but then there are all these carved-out exceptions.

20 They cite and we cite the Ostrowski decision, which lists a

21 bunch of the exceptions.

22 THE COURT: Well, I don't think she's disputing your

23 legal theory. She's disputing whether you have support for

24 it.

25 MR. KANNER: I believe that our allegations in

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1 paragraph 25, 27 to 29, and 30, as well as some of our

2 allegations in Count 9 on fraudulent transfer are sufficient.

3 I mean, we believe that basically, you had a company

4 with a lot of liabilities. It was aware of the hazards. It

5 was aware of the mass marketing of its products. And we have

6 said pretty clearly that all of this shuffling was to get

7 assets out of the liable company. And really, that's enough

8 at this point.

9 THE COURT: But you'd agree that to succeed on that,

10 you're going to have to show actual documents with regard to

11 what the deals were, right? I mean, you're relying on the

12 actual contractual arrangements, right?

13 MR. KANNER: Yes. And there is some litigation

14 pending between, I think, Chemours and one of the DuPonts

15 about you didn't give us enough assets to cover liabilities.

16 There are a lot of documents that we will ask for in discovery

17 to flush that out.

18 But I think the short analysis is that I believe that

19 at a certain point in time, DuPont determined that it just had

20 too many liabilities and like certain tobacco companies,

21 certain other companies, just decided to break up in a way.

22 But that diminishes the assets. And that's why we have a mere

23 continuation doctrine, which is basically the whole merger and

24 acquisition -- which is the same as the merger and acquisition

25 thing.

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1 And I think that we've put them on notice of them.

2 Counsel seems to understand. In Thomas Solvent, one of the

3 cases that we cite in addition to -- we cite that, the air-

4 passenger case. But Thomas Solvent says a company doesn't

5 have to be in existence to be part of a mere continuation at

6 the time of the tort. You don't have to be in existence when

7 the torts originally occur. You can come in later if you're a

8 mere continuation.

9 And I feel that between those paragraphs and some of

10 what we say in Count 9, that that's sufficient for admitted to

11 this --

12 THE COURT: Okay. And what about -- I know this

13 isn't part of the record and perhaps it's not really

14 appropriate for the Court to consider, but since she brought

15 it up and you didn't object, what about their offer for a

16 tolling agreement?

17 MR. KANNER: We have looked at that. I think we had

18 wanted more information and documentation. But I wasn't the

19 person handling those negotiations.

20 I thought you were --

21 THE COURT: Did someone else --

22 MR. KANNER: I wasn't the person --

23 THE COURT: Do you know more about that?

24 MR. BENJAMIN KRASS: Well, Your Honor -- Ben Krass

25 for the State. (Indiscernible)?

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1 THE COURT: Yeah, or you can stay there, that's fine.

2 MR. KRASS: Okay. There's something else that might

3 shed light that's related to the tolling agreement, Your

4 Honor, if I may.

5 THE COURT: Yes, she brought it up, so go for it.

6 MR. KRASS: Okay. As you may know, there's a federal

7 MDL now that deals with the foam cases for PFAS. So PFAS

8 contamination caused by toxic firefighting foam, as opposed to

9 consumer products --

10 THE COURT: Um-hum.

11 MR. KRASS: -- which this case deals with. And

12 Corteva and New DuPont recently at a hearing at the MDL stood

13 before the judge and expressed the same desire about trying to

14 entering into tolling agreements with the plaintiffs.

15 Could I approach, Your Honor? I have a --

16 THE COURT: Go ahead. What is it?

17 MR. KRASS: It's a copy of the transcript, Your

18 Honor.

19 THE COURT: Just tell me what the relevance is first.

20 MR. KRASS: Okay, sure. The relevance is so in

21 response to that, essentially plaintiffs' counsel -- the lead

22 plaintiff -- co-lead counsel in the MDL said we'll consider it

23 but we want to do our due diligence. We want to take some

24 discovery. And so this is plaintiff's counsel. But we need

25 to make sure these spinoffs were properly done. And the

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1 companies that have liabilities, the companies that have

2 assets are properly here, and that counsel is representing

3 what's accurate. And I do think through some discovery and

4 some 30(b)(6) depositions, and I don't hear any objection to

5 that, we could probably get counsel -- they'll stay in the

6 case or they'll be out of the case.

7 Counsel for Corteva/New DuPont response: we're happy

8 to do that, Your Honor. And we've had some good conversations

9 with some plaintiffs, who provided stipulations. We provided

10 affidavits attesting to all of this information. We're happy

11 to do what we need to do to do that. So this is voluntarily

12 saying we will engage in this discovery so that the plaintiffs

13 and the MDL can do their due diligence.

14 Here, there want to get out -- excuse me, they want

15 to get out of the pleadings under the same tolling agreement.

16 If it's good enough for the MDL plaintiffs, it should be good

17 enough in this case. And that's all we're asking for, is to

18 be out of the pleadings and get some discovery on the workings

19 of the spinoffs and then we can decide whether --

20 THE COURT: So you're not saying no, you're just not

21 ready to address it yet is really what you're saying?

22 MR. KRASS: Correct.

23 THE COURT: Ms. Hacker, do you want to respond to

24 that?

25 MS. HACKER: Yes, Your Honor, thank you.

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1 THE COURT: Just give me a second, though. I just

2 got a note about something.

3 Go ahead.

4 MS. HACKER: Thank you, Your Honor.

5 I'll start with the tolling agreement issue. First

6 of all, when we engaged in discussion in this case about

7 tolling agreements, we didn't get a request for information,

8 though. We're willing -- pardon me. We're willing to

9 provide, as we've done in the past, affidavit stipulations

10 detailing all of this information --

11 THE COURT: Okay.

12 MS. HACKER: -- the same exact thing we offered in

13 the MDL, affidavits, stipulations, explaining all of this

14 information.

15 We have done that with other plaintiffs in other

16 cases across the country. In fact, just this morning we

17 entered into a tolling agreement or these two entities based

18 on just affidavits and stipulations to dismiss forty-five

19 cases.

20 THE COURT: Um-hum.

21 MS. HACKER: So it's not rocket science. We're --

22 THE COURT: Okay. Well, feel free to keep

23 negotiating.

24 MS. HACKER: Exactly. We're happy to do that here.

25 I think Your Honor understands the issues well. We

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1 don't dispute the standard; we just don't believe they've met

2 it here.

3 THE COURT: Okay, thank you.

4 I think we have one to go; am I right? Is there

5 another motion floating around?

6 MR. KANNER: Sever and stay.

7 THE COURT: There we go, right. Sever and stay. Who

8 is doing that?

9 You're doing that, too?

10 MS. HACKER: I'll hop back up and down here. Get my

11 exercise today.

12 THE COURT: Motion 19. Anything you want to say

13 about it or were you just thinking you didn't need to?

14 MS. HACKER: Well, since we have time.

15 THE COURT: Yeah.

16 MS. HACKER: This motion, Your Honor, deals with the

17 State's claim that DuPont fraudulently transferred assets when

18 it spun off its performance chemicals business --

19 THE COURT: Um-hum.

20 MS. HACKER: -- into a company now called Chemours.

21 In that transaction, Chemours agreed to indemnify DuPont for

22 certain litigation losses. Chemours and DuPont are involved

23 in a separate case in Delaware in the chancery court there,

24 which of course specializes in corporate law, about these

25 indemnification issues as well a related arbitration.

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1 These indemnification issues between Chemours and

2 DuPont do not affect the State's natural resources damages

3 claims at the heart of this litigation. Because --

4 THE COURT: But they affect their ability to collect

5 at the end of the case.

6 MS. HACKER: Well, we disagree there actually,

7 because the funds that are complained about in the voidable

8 transaction claim are still with defendants named in this

9 case: DuPont and Chemours. So there is no reason that the

10 Court needs to weigh into the issues between DuPont and

11 Chemours that are being resolved in Delaware chancery court or

12 in the arbitration.

13 THE COURT: But that money might not be there later.

14 MS. HACKER: Well, but the only issues that the State

15 talks about in its voidable transaction claim is the sole

16 transaction between DuPont and Chemours that occurred in 2015.

17 THE COURT: Um-hum.

18 MS. HACKER: In that transaction, Chemours got the

19 performance chemicals business and of course paid for that

20 business to DuPont.

21 DuPont doesn't dispute that between it and Chemours,

22 it's the primary defendant, because keep in mind Chemours

23 didn't become its own company until that happened in 2015, and

24 that's two years after, according to the State, DuPont stopped

25 using these chemicals.

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1 So that's where the story should really start and

2 stop. But it doesn't for today because of this transaction

3 that occurred in July 2015.

4 The State tries to paint a picture where it's going

5 to be left at the end of this case without a remedy, but we

6 don't believe there's a legitimate basis for that concern.

7 And focusing on the remedy they would get for this claim helps

8 show that.

9 If the State wins its voidable transaction claim,

10 then the relief it gets is to unwind the spinoff. It

11 essentially would have the money that Chemours paid DuPont go

12 back from DuPont to Chemours. But whether DuPont has the

13 money or whether Chemours has the money doesn't affect the

14 State's ability to recover it in this case. Win or lose on

15 the voidable-transaction claim, the State could collect from

16 DuPont or the State could collect from Chemours. It makes no

17 difference.

18 So as you can you see, DuPont's spinoff of Chemours

19 is really irrelevant to the State at the end of the day. If

20 the defendants here lose, and that's a big if, it's between

21 DuPont and Chemours to determine whether Chemours will

22 indemnify DuPont. That fight happens after the State has

23 already been paid in this scenario. It's not --

24 THE COURT: Okay, but you're not citing any

25 requirement that this come later, right? You're just saying

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1 for efficiency purposes, the Court should put this issue off?

2 MS. HACKER: That's correct. It's solely within the

3 Court's discretion, but we believe it would be most efficient

4 for the parties and for the Court to deal with this later

5 since it's not going to make a difference --

6 THE COURT: But isn't the flip side that if I do put

7 it off, it could potentially mean that this case drags on for

8 a longer period of time because we get part one and then move

9 on to part two? And they haven't even done discovery. And

10 we're starting over again.

11 MS. HACKER: We think the most likely case is that it

12 simplifies things here because we believe, a 99.9 percent

13 chance, this claim will never need to be litigated. So we get

14 to the end of the case at the end of the day and there's a

15 number of ways where this claim could simply go away.

16 THE COURT: But what about that other 1 percent?

17 MS. HACKER: Well, in that case --

18 THE COURT: I mean, there is a chance that what I

19 just described could happen, right?

20 MS. HACKER: In that case, I think this claim is very

21 simple to deal with in a bench trial after everything is

22 handled on the environmental claims, because, of course, it's

23 seeking equitable relief.

24 And we think that for judicial efficiency purposes,

25 if it's a 99.9 percent chance you never need to deal with it,

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1 the best avenue is let's put things on hold and assume that

2 we're never going to need to deal with it. And in the very,

3 very unlikely scenario that we have to, then we cross that

4 bridge when we get there.

5 I do want to say one quick note about the potential

6 that the issues between Chemours and DuPont may be dealt with

7 in a confidential arbitration. Because of course, in its

8 response to this motion, the State tries to imply that there's

9 something wrong with the fact that this may go to confidential

10 arbitration.

11 The dispute between DuPont and Chemours concerns

12 indemnifications obligations, which are not normally

13 discoverable in any event because they don't affect

14 plaintiffs. So whether the case between Chemours and DuPont

15 stays in Delaware or finishes in arbitration, it doesn't make

16 a difference to --

17 THE COURT: Why is it a confidential arbitration?

18 I'm just curious.

19 MS. HACKER: Because the parties --

20 THE COURT: I've never heard of that before.

21 MS. HACKER: Most arbitrations have confidentially

22 clauses in --

23 THE COURT: Okay.

24 MS. HACKER: -- the arbitration clause. It's very

25 standard.

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1 THE COURT: Um-hum.

2 MS. HACKER: There's not much different about this

3 business dispute than plenty of the other business disputes

4 that go to confidential arbitration --

5 THE COURT: Okay.

6 MS. HACKER: -- every day. And there certainly -- it

7 doesn't indicate some malicious intent, as the State wants to

8 believe.

9 On the State's claim that it will suffer prejudice if

10 the Court grants this motion, we don't think that's true. We

11 actually believe the opposite. This is not the typical

12 voidable-transaction claim.

13 Voidable-transaction claims are usually meant to

14 protect plaintiffs from defendants who transferred money to a

15 party outside the case so that the money will be on the hook

16 when the plaintiffs --

17 THE COURT: Um-hum.

18 MS. HACKER: -- when and if the plaintiffs need to

19 collect. Here, as I've mentioned, both parties involved in

20 this spin off are named as defendants. Both are already on

21 the hook. DuPont is not suggesting that it will not be liable

22 for any judgment the State wins. Whether or not we seek

23 indemnification or reimbursement from Chemours after the fact

24 does not impact the State.

25 DuPont and Chemours, and frankly 3M, the other

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1 defendant here, are the ones who would be prejudiced by

2 denying this motion. The State has already made clear in its

3 response to this motion that it wants wide-ranging discovery

4 unrelated to the environmental issues of this case and

5 unrelated, frankly, to the voidable transaction claim.

6 THE COURT: But I can control that. I mean, if

7 they're really asking for things that are unreasonable, that's

8 where I come in and limit it, right?

9 MS. HACKER: Absolutely, but --

10 THE COURT: And if it's reasonable, then they're

11 entitled to it.

12 MS. HACKER: Absolutely, but there's time and money

13 spent fighting that -- going through the hoops of motion

14 practice and fighting that discovery in the meantime. And we

15 do believe we'd be prejudiced by engaging in those --

16 THE COURT: Although we don't usually treat the cost

17 of litigation as prejudicial.

18 MS. HACKER: Well, we do when it's unnecessary.

19 The other thing that continuing to litigate this

20 claim right now does is triple the number of attorneys that

21 need to be involved for these parties. As you can see by

22 myself and Ms. Raymond-Flood, who is in the courtroom, because

23 there is a potential for a conflict on this specific claim --

24 THE COURT: Um-hum.

25 MS. HACKER: -- because of the Delaware litigation

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1 between DuPont and Chemours, the attorneys from McCarter and

2 English, who otherwise represent DuPont and Chemours, cannot

3 represent either party on this claim.

4 THE COURT: Wait, run that by me again.

5 MS. HACKER: So DuPont and Chemours have this

6 separate case going on in Delaware --

7 THE COURT: Against each other, right.

8 MS. HACKER: -- and a potential arbitration against

9 each other.

10 THE COURT: Right, right, got it.

11 MS. HACKER: So when it deals with issues related

12 to --

13 THE COURT: Yeah.

14 MS. HACKER: -- or closely related to those claims,

15 there's a potential for a conflict; so we're standing here.

16 THE COURT: Yes, it is quite a crowd of lawyers; I

17 agree.

18 MS. HACKER: We'd like to limit it down given how

19 complex this case already is on the environmental issues.

20 So what are we asking? We're not asking the Court to

21 dismiss the claim. We're fine with it remaining pending in

22 the very, very less than one percent chance we've spoken

23 about, unlikely event that it needs to be addressed. We're

24 just asking the Court to use its discretion and common sense

25 to sever and stay the claim until liability is determined and

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1 until the Delaware litigation is complete to see if we ever

2 really do need to go forward with it.

3 THE COURT: And do you think that the Delaware

4 court's decision would control here or would it just be

5 persuasive for me?

6 MS. HACKER: Well, it depends. I wouldn't say it

7 would control necessarily, but there are ways in which certain

8 outcomes of the Delaware litigation could moot this claim.

9 For example, one of Chemours' alternative requests

10 for relief in the Delaware litigation is essentially the same

11 request for relief the State has to unwind the transaction.

12 Now, of course, as DuPont, we don't believe they're entitled

13 to that relief. But let's say the case stays in Delaware and

14 that happens, the claim here is moot.

15 THE COURT: Right, no, I see your point.

16 MS. HACKER: One of the many reasons this case -- or

17 this claim could go away, and we think it's appropriate to

18 sever and stay it now so that we don't waste our time if that

19 does happen.

20 THE COURT: Okay, thank you.

21 Someone else on this one?

22 MS. MARGARET RAYMOND-FLOOD: Good morning, Your

23 Honor. I'm Margaret Raymond-Flood from Norris McLaughlin and

24 we represent Chemours on the fraudulent transfer claim only.

25 I thought it made sense for me to just stand up now.

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1 I really do not have much to add to Ms. Hacker's argument.

2 THE COURT: Okay.

3 MS. RAYMOND-FLOOD: And I know that there was a joint

4 opposition, so I thought it might be simpler.

5 I think we all agree that it is within Your Honor's

6 sound discretion to rule on this particular motion. I think

7 it's also clear from a judicial economy and efficiency

8 standpoint that there are quite a few issues related to the

9 environmental -- many claims that will be litigated.

10 And to be dealing with an issue such as this

11 fraudulent transfer claim, which we believe will likely never

12 come to pass or never be relevant to this litigation because

13 it doesn't necessarily -- it doesn't affect the plaintiff's

14 claim as to Chemours and DuPont, it seems to us that this will

15 become not only collateral and, as I call it, a side show, it

16 will create the necessity of four new law firms that are

17 involved just on the fraudulent transfer claims and discovery

18 that may never matter and may never, ever come to fruition.

19 So it's our view that it would be most economical and

20 least prejudicial to all the parties in the case to stay this

21 particular portion, this one claim.

22 And neither Chemours nor DuPont are asking for the

23 Court to dismiss it. We get it that there may potentially be

24 an issue, but we don't think so.

25 And the reality is, while DuPont and Chemours may not

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1 agree on the indemnity obligations and other issues between

2 the two parties, it doesn't impact the plaintiff.

3 THE COURT: On the point about the discovery, hasn't

4 all the discovery essentially been done in Delaware?

5 MS. RAYMOND-FLOOD: No, Your Honor.

6 THE COURT: On these issues? No?

7 MS. RAYMOND-FLOOD: There's pending motions to

8 dismiss as to whether it's going to go to arbitration or stay

9 in the Delaware chancery court.

10 THE COURT: I see.

11 MS. RAYMOND-FLOOD: And there are motions to compel

12 in that case. So our view is that it will all be resolved

13 there. It should be resolved there. And ultimately, it

14 should not impact this case or extend or expand this case.

15 THE COURT: But if the court there does order

16 discovery, if you get past the motion to dismiss, wouldn't it

17 be the same discovery here? I mean, just make a second copy

18 of all the same stuff?

19 MS. RAYMOND-FLOOD: Not really, Your Honor, because I

20 think one of the things that they're asking for here is

21 discovery that's unrelated to any of the parties. I mean, if

22 you look at some of the things that are mentioned in the

23 briefing, I think that they want far broader than what would

24 be happening in Delaware.

25 THE COURT: Such as?

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1 MS. RAYMOND-FLOOD: And the reality is, in terms of

2 Delaware, it's specifically related to the agreement between

3 DuPont and Chemours. It really has nothing to do with the

4 State.

5 And all of the discovery that is related to the

6 environmental claims as to Chemours and DuPont, they'd already

7 be getting with respect to McCarter.

8 THE COURT: Right. But with regard to their claims

9 on this issue, aren't they the same claims that are being

10 fought out down there?

11 MS. RAYMOND-FLOOD: They're not exactly the same

12 claims.

13 THE COURT: They aren't, okay.

14 MS. RAYMOND-FLOOD: They're not exactly the same

15 claims, but it's much of the same issues. I think it's a

16 little bit different. We have multiple -- we have alternative

17 relief in Delaware. We have issues related to the

18 indemnification obligations: whether they exist, whether

19 they're capped at certain liabilities, and then of course

20 whether or not the four billion should go back to Chemours or

21 with DuPont.

22 But as to this plaintiff, both of our party -- both

23 parties are here. So wherever that four billion dollars is,

24 it doesn't impact or negative prejudice the plaintiff.

25 THE COURT: As long as it doesn't get spent between

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1 now and then.

2 MS. RAYMOND-FLOOD: Well, true. But Your Honor, the

3 only thing before you right now is the --

4 THE COURT: I could spend that, no problem.

5 MS. RAYMOND-FLOOD: -- 2015 spinoff.

6 Me, too.

7 The only thing before you is the 2015 spinoff between

8 Chemours and DuPont, not future dissipation of funds. So that

9 really doesn't affect this claim at all.

10 THE COURT: Yeah, I see your point. Okay. Thank you

11 very much.

12 MS. RAYMOND-FLOOD: Thank you, Your Honor.

13 THE COURT: Who is up?

14 MR. KRASS: Good morning, Your Honor.

15 THE COURT: Good morning, again.

16 MR. KRASS: Ben Krass for the State.

17 If I may, Your Honor, on the motion to sever --

18 THE COURT: Um-hum.

19 MR. KRASS: -- the complaint's allegations are taken

20 as true. And what DuPont, Historical DuPont, and Chemours

21 have just said contradict the complaint allegations.

22 Briefly, the complaint allegations are that

23 Historical DuPont and Chemours have engaged in fraudulent

24 transfers to shield assets from plaintiffs and other creditors

25 for PFAS-related liabilities. In July of 2015, Historical

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1 DuPont spins off Chemours as an independent company. They

2 saddle Chemours with all the PFAS liabilities and give them

3 very few assets. They also took a four-billion dividend from

4 Chemours.

5 So now they come in, in contrast to the complaint

6 allegations, and say, oh, the spinoff didn't really happen,

7 DuPont is still going to pay for all those liabilities. That

8 contradicts the compliant allegations and it's directly

9 opposite of what the purpose of the spinoff was.

10 Fundamentally, Your Honor, the defendants

11 misunderstand the nature of the voidable-transaction claim.

12 It's a contingent claim by nature. So by the statute, we

13 don't need to go through all the permutations of what may or

14 may not happen.

15 Under the statute, a creditor is a person who has a

16 claim. And a claim is defined "as a right to payment, whether

17 or not he right is reduced to judgment, liquidated,

18 unliquidated, fixed, contingent, matured, unmatured, disputed,

19 undisputed, legal, equitable, secured, or unsecured." And

20 that's 9 VSA Section 2285(3).

21 So based up on the nature of the voidable-transaction

22 statute, courts have uniformly held that these claims proceed

23 concurrently with the underlying claims; that's the point of

24 the statute.

25 I would point Your Honor to a couple of cases that we

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1 cited on this: the Gucine v. Bianchi (ph.) case, 2015 WL

2 4931808 *H2. Now, there, the court was applying New Jersey

3 and Pennsylvania. It's virtually identical to Vermont.

4 They're all based on a uniform statute.

5 THE COURT: Um-hum.

6 MR. KRASS: "Courts in those jurisdictions",

7 referring to New Jersey and Pennsylvania, "have permitted

8 fraudulent transfer claims to proceed alongside the claims

9 that give rise to the purported right to payment."

10 Now, the defendants say this case is different

11 because you've got both defendants here. It's not a --

12 there's not situation where there's a third party that we're

13 bringing in.

14 THE COURT: Right.

15 MR. KRASS: I would refer Your Honor to the Gruner

16 case, Gruner AG v. KG Components, 2002 WL 31466761. There was

17 a case where a plaintiff brought suit in the U.S. And they

18 had a breach of contact claim and an unjust enrichment claim.

19 They also had a fraudulent transfer claim. The court

20 dismisses the breach of contract and the unjust enrichment

21 claim for improper venue because they had a contractual

22 provision that those would be decided in Germany. So those

23 claims go to Germany.

24 After that happens, the defendant says, well, we need

25 to sever the fraudulent-transfer claim because there's this

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1 parallel proceeding actually involving the same parties, which

2 is different here because we're not a party to the --

3 THE COURT: Um-hum.

4 MR. KRASS: -- case in Delaware. And the court

5 rejects the argument. So it's not based on the nature of the

6 party. The focus of the courts is on the asset and as Your

7 Honor recognized, the potential dissipation of the asset.

8 And --

9 THE COURT: Go ahead.

10 MR. KRASS: Let me just say the full context in terms

11 of the State's concern about the dissipation of the assets

12 were that they're not going to get there at the time of the

13 final judgment.

14 So there's a lot of different PFAS litigation going

15 on across the country involving Chemours and Historical

16 DuPont.

17 THE COURT: Sure.

18 MR. KRASS: So the issue is not whether these two

19 defendants can satisfy a judgment in this case alone. The

20 issue is can they satisfy a judgment in this case at the same

21 time that they might have to satisfy judgements in other

22 cases. So there's cases --

23 THE COURT: So there's a race to the bank is what

24 you're saying?

25 MR. KRASS: Well, we have a right to protect -- under

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1 this voidable-transaction claim, we have a right to protect

2 the State's rights in terms of making sure that a judgment is

3 there -- I'm sorry, that the assets are there to satisfy a

4 judgment at the end of the case.

5 We've heard today there's state cases by Ohio, New

6 Jersey, and other states. Now, the Ohio case, we submitted as

7 supplemental authority to Your Honor. DuPont and Chemours

8 there brought the same exact motion to sever and stay, as they

9 did here, made the same exact arguments. And that court

10 denied the motion. So we know that the parties are moving

11 into discovery on the sever and stay issues in Ohio. So it's

12 just as -- and the discovery is going to be similar. It's

13 just as easy -- if they're moving into discovery on one case,

14 why can't they do it here?

15 And then, if the motion is denied here, there's other

16 plaintiffs there now moving forward that may be able to get

17 interim relief under the statute to secure assets or other

18 kinds of interim relief. And they will be ready, as Your

19 Honor recognized, when there is a judgment, to be able to

20 litigate the fraudulent transfer claim.

21 If we go to judgment staying this, we got to -- we

22 get to a judgment, we have to start over then on the voidable

23 transaction claim, meanwhile other plaintiffs have been moving

24 forward and going after the same assets as the State.

25 So this is very prejudicial to the State in terms of

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1 being able to protect assets now while other plaintiffs are

2 moving forward, both towards potential final judgment, and

3 also towards seeking potential interim relief under the

4 statute.

5 THE COURT: So it is a race to the bank?

6 MR. KRASS: Well, each plaintiff has --

7 THE COURT: Yep.

8 MR. KRASS: -- the right to protect under the

9 statute.

10 THE COURT: No, I'm not saying it's wrong. But

11 that's what it comes down to, really. So you're worried about

12 it not being there later.

13 MR. KRASS: Your Honor recognized that -- and I would

14 again point to the Gucine case, *page 2, in denying these

15 motions to sever and stay fraudulent transfer act claims, the

16 courts have said the better course is just to manage the

17 discovery. And Your Honor can use existing discovery tools,

18 if we go across the line. We're cognizant that this discovery

19 should not be the tail that wags the dog. And we know that

20 you will employ discovery management tools if necessary. But

21 courts have said that's the better course rather than

22 denying -- than staying the claim at the outset of the case.

23 THE COURT: How much extra do you think this adds to

24 the case, this piece of it in terms of discovery? Do you have

25 any sense of that?

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1 MR. KRASS: I think it's relatively discreet, Your

2 Honor. There's a list of factors under the statute. There's

3 two types of voidable-transaction claims. There's an

4 intentional one and then a constructive intent. And the

5 statute lists a number of factors that you can use that are

6 relevant to showing intent under the statute.

7 For example, was the asset unreasonably small that

8 you transferred in relation to the liabilities.

9 THE COURT: Right.

10 MR. KRASS: What were they saying about that

11 internally at the time? We know what they're saying publicly,

12 but we want to get into discovery what they were saying about

13 that internally. And that's one of the factors that goes to

14 whether or not there was intent to fraudulently transfer an

15 asset.

16 Another factor is whether, before the transfer was

17 made or the obligation was incurred, the debtor had been sued

18 or threatened with suit. We have alleged that prior to the

19 spinoff, DuPont knew that there could be massive PFAS

20 liabilities. There was over a 300-million-dollar settlement

21 in 2005, ten years before.

22 THE COURT: Yeah, I don't think I need to get into

23 this --

24 MR. KRASS: Okay.

25 THE COURT: -- level of detail. But the point is --

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1 I mean, I'm imagining that this is -- compared to what we're

2 talking about on the environmental issues, this is a

3 relatively limited piece of discovery.

4 MR. KRASS: I think that's right, Your Honor.

5 THE COURT: Is that fair?

6 MR. KRASS: I think that's fair, Your Honor.

7 THE COURT: I mean, it seems it would have to be.

8 Okay.

9 MR. KRASS: And then I think they have conceded that

10 the Delaware litigation does not control here. I think both

11 counsels said --

12 THE COURT: Although wouldn't you agree that she's

13 right, that it could move this claim. I mean, somebody else

14 could win the same argument you're making down there,

15 essentially.

16 MR. KRASS: So there's no -- the only doctrine that

17 we know of that would preclude the Court here would be the

18 first-filed rule. And they're both disclaiming that they're

19 not relying on that.

20 THE COURT: No, the point was if the transaction was

21 undone down there, then you wouldn't be needing to undo it

22 here; that was what she was saying.

23 MR. KRASS: Well, we --

24 THE COURT: What's your response to that?

25 MR. KRASS: We would still need to be securing

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1 assets, Your Honor, because they're either asking for the caps

2 to be imposed down there or they're asking for the four

3 billion dollars back.

4 THE COURT: Um-hum.

5 MR. KRASS: There's still a limited pool of money and

6 there's a lot of plaintiffs across the country, including

7 states, with big claims. And this could become an asbestos-

8 type situation, where there's just not enough assets to go

9 around. So regardless of what happens in Delaware, we need to

10 move forward under the statute to be able to protect our

11 potential right to these assets.

12 THE COURT: Okay. Thank you.

13 MR. KRASS: Thank you.

14 THE COURT: Would either of you like to respond on

15 that?

16 MS. HACKER: Yes, Your Honor.

17 I'd like to start, Your Honor, with something Mr.

18 Krass started his argument with, which was to say this is a

19 contingent claim by nature. That's exactly our point. It's

20 contingent on so many things happening that we should wait and

21 see what happens because the most likely scenario here -- even

22 if -- and I think the State's ideal world, that the State wins

23 a judgment on the environmental claims. The most likely

24 outcome is that DuPont and Chemours satisfy a judgment; then

25 this claim goes away.

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1 Both DuPont and Chemours are viable, growing

2 companies with substantial assets that can be used, if need

3 be, to pay any liabilities. And every single penny of the

4 assets that are at stake in the State's voidable-transfer

5 claim are already on the hook here. All we're talking about

6 is the payment Chemours made to DuPont in the spinoff. But it

7 either is with DuPont or it's with Chemours. It's still here

8 in this case. So the voidable transaction claim doesn't make

9 a difference.

10 Now, Your Honor raised this potential race-to-the-

11 bank scenario. This claim doesn't affect that. Again, this

12 claim is limited solely to focusing on the transaction in 2015

13 where Chemours paid DuPont in exchange for the performance

14 chemicals business. It doesn't change what happens after the

15 fact with potential liabilities. So I'm not quite sure how

16 the State believes that this could prevent a race-to-the-bank

17 scenario.

18 THE COURT: Well, if they were only to recover from

19 one of the two companies here, it could make a big difference,

20 right? If they got a judgment against the wrong one from

21 their perspective?

22 MS. HACKER: Well, I don't quite see how they only

23 get a judgment against one of the two companies --

24 THE COURT: Well, I don't know.

25 MS. HACKER: -- because Chemours didn't exist until

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1 2015. So any of its liability is simply because of what

2 DuPont did historically. So there's not really a scenario in

3 which just Chemours or just DuPont -- really, they go together

4 because of the way things are set up here.

5 I'd also like to respond to Mr. Krass' guess that

6 discovery is going to be relatively discrete here. We

7 disagree with that. I'm sure you're not surprised by that,

8 Your Honor.

9 I have no doubt that if this claim goes forward, we

10 will immediately get requests for production of all emails,

11 all internal documents, discussing anything related to the

12 potential spinoff of not just Chemours but other spinoffs that

13 happened long after, years after, this claim that we're

14 dealing with in this case.

15 So we don't think that that discovery is relatively

16 discrete. And it involves, frankly, a lot of time and money

17 on our part to respond to that, and even to fight it, if we do

18 need to come to Your Honor over issues in discovery.

19 So again, we're not asking that this claim be

20 dismissed; we're just suggesting that it be stayed for no

21 until a point at which it would actually could make a

22 difference, which we don't believe it ever will. That way, it

23 doesn't distract everyone here from the environmental issues

24 we should be focused on.

25 THE COURT: Thank you.

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1 Any other last words necessary?

2 MS. RAYMOND-FLOOD: I have nothing else, Your Honor.

3 THE COURT: Okay. Have we covered everything? Have

4 I missed anything? We're all exhausted; I can see that.

5 Okay. Well, thank you very much.

6 So you have at least one case, I know, that you want

7 to submit a reference to. Were there other cases cited by

8 other parties that aren't in the filings?

9 MR. BERGER: Your Honor, if I could send you the

10 rescinded third section 8 in the adoption document, since I

11 referenced it in my argument, if you --

12 THE COURT: Sure, why not, save a little work.

13 MR. BERGER: Thank you.

14 THE COURT: But were there any other cases? Did you

15 cite anything else that's not?

16 MR. GOTTLIEB: Nothing new, Your Honor.

17 MR. BERGER: I think there was more than one on our

18 side. We'll just give you a very simple list.

19 THE COURT: Okay. Yeah, just give me a list of

20 citations.

21 MR. BERGER: Yes, Your Honor.

22 THE COURT: Okay, great.

23 MR. BERGER: Yes, Your Honor.

24 THE COURT: Okay. Well, I can't promise how quickly

25 you're going to get this, but you will get it.

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1 Thank you all so much.

2 IN UNISON: Thank you, Your Honor.

3 THE COURT OFFICER: All rise.

4 (Proceedings concluded at 11:32 AM)

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2 C E R T I F I C A T I O N

3 I, Ariel Avidar, the court-approved transcriber, do

4 hereby certify the foregoing is a true and correct transcript

5 from the official electronic sound recording of the

6 proceedings in the above-entitled matter.

11 March 23, 2020 12 ______13 ARIEL AVIDAR DATE 14

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according (2) 62:1;67:4;69:9,10; 11:3 117:15;118:5,17; * 8:2;120:24 71:9;88:14;94:5; advisory (6) 130:2 accordingly (1) 97:8;99:16;112:1; 61:21;97:25;98:7; agreements (4) *H2 (1) 89:20 120:6;124:11;134:1; 99:12;100:20;102:3 109:25;112:2; 133:2 account (1) 141:21 aesthetic (2) 116:14;118:7 *page (1) 101:7 ADA (2) 17:15;27:25 AGs (1) 136:14 accurate (1) 91:14,15 affect (7) 25:10 117:3 adapt (1) 120:2,4;121:13; ahead (7) [ achieve (1) 7:25 123:13;128:13; 40:23;46:9;106:8; 68:24 add (4) 131:9;140:11 108:2;116:16;118:3; [s]eventeen (1) achieved (1) 8:12;25:22; affected (1) 134:9 50:5 84:10 111:17;128:1 82:8 aimed (1) [the (1) acknowledges (1) adding (1) affidavit (1) 51:14 50:5 45:19 112:11 118:9 air (4) acknowledging (1) addition (4) affidavits (3) 27:18,20,25; A 51:7 27:24;69:10; 117:10;118:13,18 105:12 acquisition (2) 111:13;115:3 affirmative (1) air- (1) Aaron (2) 114:24,24 additional (2) 23:14 115:3 48:10;50:25 across (7) 85:14;88:22 affirmed (2) airborne (1) abatability (1) 34:9,10;50:7; address (11) 15:15;33:17 37:2 38:24 118:16;134:15; 23:22;24:22;30:8; affirming (1) akin (1) abatable (1) 136:18;139:6 32:9,25;33:24; 42:10 58:21 39:3 act (9) 37:24;46:6,7;56:3; affirms (1) alarming (1) abate (2) 14:5;58:2;67:23; 117:21 21:24 11:3 39:3,14 70:14;72:18;77:24; addressed (7) AG (1) Alaska (2) abated (1) 91:12;103:11; 23:1,13,25;32:24; 133:16 38:14,18 50:3 136:15 41:11;60:7;126:23 again (34) ALI (3) abatement (5) acting (2) addresses (2) 7:24;8:6;9:3,18; 51:10,15;54:19 39:7,13,16,18,19 59:12;60:16 18:23;60:6 12:5,17;13:6,11; align (1) abdicate (2) action (85) adds (1) 17:2,3,18;18:25; 104:13 78:5;80:3 7:1,2,20;8:1,16; 136:23 19:3;21:19;39:5; ALI's (1) ability (5) 9:4,22;17:23;18:1,8; adequate (1) 41:2,11;42:8;45:6; 51:11 16:15;83:15; 19:23;20:2,3;22:8, 111:3 46:2;54:25;56:3; Allan (2) 92:16;120:4;121:14 13,21;23:15,17;24:4, adjacent (3) 68:16;84:11;101:14; 75:15,15 able (6) 21;30:19;31:2,8,11; 10:12,13;12:2 104:8,17,25;122:10; allegation (5) 39:17;72:9; 38:11;41:16,19,19; adjusted (1) 126:4;131:15; 38:20;64:4;91:18; 135:16,19;136:1; 42:11,25;45:21; 6:15 136:14;140:11; 109:19;112:16 139:10 46:4;53:17,23;55:9, administers (1) 141:19 allegations (20) above (3) 10;56:5;57:5,17,25; 43:14 against (25) 34:15;61:14,16; 86:3;98:20,22 58:3,10,13,17,25; admission (1) 8:1;10:1;30:19; 67:16;91:10,25; above-ground (1) 59:4,5,8,10,18,21; 100:15 33:8,14,18;35:5; 95:10;96:7;102:14; 44:2 60:14;61:14;66:5,9, admit (1) 36:2;38:6;39:6; 105:22,24;110:5; absence (2) 21;67:23;69:16; 104:19 40:10;41:2,6;79:4; 112:18;113:25; 7:22;55:22 70:1,19;72:16,24; admits (2) 81:15;84:24;90:3; 114:2;131:19,21,22; absolutely (7) 73:2;81:4,15;82:5; 109:3,8 91:17;108:12;109:2; 132:6,8 12:16;22:7;23:3; 91:16;92:16,23; admitted (3) 113:12;126:7,8; allege (3) 86:6;112:17;125:9, 95:8;96:16,20,24; 21:18;50:1;115:10 140:20,23 63:19;93:25; 12 97:2,5,9,13,15,20,22; admittedly (2) agency (1) 100:10 absorbed (1) 98:4,9;102:4; 31:2;41:3 13:25 alleged (7) 78:20 103:12;106:2 ado (1) ago (5) 10:14;35:15; abundantly (1) actionable (1) 92:15 17:17;66:7;67:11; 61:17;62:13;96:25; 57:15 87:6 adopt (1) 104:23;111:25 108:23;137:18 accept (1) actions (5) 46:12 agree (14) alleging (2) 3:25 9:9;58:1,1;59:16; adopted (4) 10:23;22:7,7; 110:11;112:13 accepted (1) 61:5 15:20;46:16; 86:12,13,13;110:9; allow (3) 54:19 actively (1) 47:19;50:6 111:21;112:7;114:9; 81:9;102:17; access (4) 62:8 adoption (3) 126:17;128:5;129:1; 104:20 13:24;79:24;80:8, actual (5) 50:2;54:25;142:10 138:12 allowed (3) 9 54:24;61:17; adult (1) agreed (2) 9:15;12:24;77:13 accessed (1) 86:20;114:10,12 53:19 92:18;119:21 allowing (3) 62:11 actually (21) advanced (1) agreement (8) 13:24;33:13; accident (2) 19:12;25:7;58:9, 103:9 4:1;112:10; 101:23 65:11,24 22;59:3;60:6;61:25; advertising (1) 115:16;116:3; allows (2)

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24:3;113:18 30:6;55:8,8;56:3, 42:1;53:14;71:3; 113:2 12:14;53:12;78:4; almost (5) 3;112:5 72:5;73:25;74:24; assuming (1) 90:9;98:13;122:15; 10:12;17:21; appear (2) 102:17;106:12; 40:14 127:17;139:25 57:11;90:19;96:13 3:21;47:11 108:17;111:25; assumptions (1) alone (1) appellate (1) 112:14,15;128:1; 54:11 B 134:19 40:5 134:5;138:14; astray (1) along (5) applicable (1) 139:18;142:11 14:24 back (18) 39:16;84:18;95:3; 71:8 arguments (4) Atlantic (9) 11:23;53:7,14; 112:4,4 application (4) 19:22;42:3,6; 34:21,22;35:9; 56:13;65:12;68:15; alongside (1) 6:18;12:18;27:21; 135:9 57:17;62:23;68:15; 70:2;77:17;80:22; 133:8 37:6 arise (2) 81:20;84:14;88:19 81:1;92:9;104:7,14; alteration (2) applied (6) 36:10,11 atomistically (1) 111:2;119:10; 17:24;87:6 11:2;15:5;27:17; arisen (1) 82:11 121:12;130:20; altering (1) 29:24;32:11;46:21 36:6 attached (3) 139:3 18:9 applies (6) arises (1) 16:3,5;110:3 backup (1) alternative (7) 31:24,25;32:18; 36:8 attack (1) 47:9 18:20;46:14;47:4; 52:10;54:13;103:17 around (4) 22:8 backward (1) 50:8;102:18;127:9; apply (6) 68:17;77:8;119:5; attacked (1) 68:21 130:16 28:3,5;32:19;35:6; 139:9 24:23 bad (1) although (6) 73:19;91:1 arrangements (1) attempt (1) 111:20 13:24;53:25; applying (2) 114:12 77:1 baked (1) 104:23;112:23; 95:4;133:2 article (19) attempted (1) 11:4 125:16;138:12 appointed (1) 24:25;25:1,8,19, 51:9 balance (1) always (6) 73:9 23;26:4;48:10,12,17; attention (5) 110:19 8:21;10:13;32:19; appreciate (2) 49:9,10;50:5,17; 5:24;27:4;48:16; balancing (2) 81:17;94:14,15 94:25;95:1 51:1,13;52:5;58:19; 49:8;50:21 86:23;87:4 ambiguous (1) approach (7) 93:4;94:13 attesting (1) bandwagon (1) 61:17 10:7;11:11;13:9; articulate (1) 117:10 37:4 amend (7) 14:10;17:3;51:24; 44:10 Attorney (14) bank (3) 64:20;68:13; 116:15 asbestos (1) 3:7,7,7,8,8,9,10,11, 134:23;136:5; 101:14,24;104:7,8, appropriate (5) 35:22 12,14,15;9:25;24:3; 140:11 25 29:15;51:10; asbestos- (1) 45:24 bar (2) amended (6) 95:23;115:14; 139:7 attorneys (3) 24:13;50:1 68:13,15;89:1,2,4, 127:17 ASC (1) 111:14;125:20; barrage (1) 5 approval (1) 40:5 126:1 51:14 amendment (3) 16:13 aside (1) attributed (1) Bartlit (1) 64:14;68:15; arbitration (10) 62:12 38:9 108:5 104:18 119:25;120:12; Assembly (2) Audubon (1) base (1) amendments (2) 123:7,10,15,17,24; 53:6;103:3 27:10 31:13 105:4,6 124:4;126:8;129:8 assert (3) authorities (1) based (12) Amerada (4) arbitrations (1) 67:8;71:5;97:1 58:2 8:25;24:24;54:12; 31:9,9;58:24;97:7 123:21 asserted (1) authority (16) 73:17;87:2,3; Ameranda (2) architectural (1) 62:19 25:17;31:15; 108:23;113:1; 94:19,20 91:12 asserting (1) 40:12,13;41:1,12; 118:17;132:21; American (3) area (3) 74:12 55:22;58:17;60:12; 133:4;134:5 32:12;50:6,22 33:12;34:20;52:6 assessed (1) 76:18;77:14;78:13, baseless (1) amorphous (5) areas (1) 95:14 20;79:11;83:18; 110:10 11:15;17:20;18:6; 71:13 asset (4) 135:7 baseline (2) 24:6;100:11 argue (6) 134:6,7;137:7,15 authors (2) 63:3;86:3 analogy (2) 18:19;40:25;57:2; assets (19) 49:9;50:25 bases (1) 71:8;81:11 74:11;82:4;86:2 110:18,19;114:7, auto (2) 54:16 analysis (5) argued (5) 15,22;117:2;119:17; 85:3,3 basic (3) 10:17;15:9;68:3; 4:13,18;14:20; 131:24;132:3; availability (1) 59:17;61:8;108:19 106:22;114:18 17:6;45:22 134:11;135:3,17,24; 66:6 basically (10) ancient (10) argues (2) 136:1;139:1,8,11; available (3) 9:11;11:21;20:18; 10:7,7;19:4;22:15; 21:15;40:25 140:2,4 22:14;53:18;97:22 22:4;68:20;78:19; 27:14;29:11;52:21; arguing (7) Associations (1) avenue (1) 106:10;113:17; 54:7;70:3;76:8 5:9,11;45:12; 32:13 123:1 114:3,23 annoyance (1) 49:12;98:19;106:17; assume (3) avenues (1) basis (23) 13:18 107:19 74:24;109:25; 59:12 7:2;9:7,14;12:5; apparently (1) argument (23) 123:1 aware (3) 15:1;29:7;57:24; 94:6 3:19;9:17;15:6; assumed (4) 15:15;114:4,5 58:16;59:10,20; appeal (6) 19:23,24;21:20; 109:15,24;112:19; away (8) 61:5;64:13;65:22;

Min-U-Script® eScribers, LLC | (973) 406-2250 (2) almost - basis [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

66:4;73:22;74:25; 19;20:10,13,15,21; 53:9 45:14,20;57:25; came (7) 96:20;97:19;99:4; 21:1,4,10,12;22:1,7; bodies (1) 58:25;67:15,22; 13:20;48:25; 100:25;101:2,10; 23:3,9;28:19;36:23; 87:13 70:19;72:9;73:1,6; 68:15;78:18;79:1; 121:6 52:3,15,16,18;53:22; body (2) 81:14;82:4;83:21, 82:5,12 beach (2) 55:15,20;56:25; 11:21;51:12 24;91:16 can (78) 79:24;80:8 57:8;75:7;76:7; boil (1) bringing (6) 5:1,10;6:14,25; beaches (1) 81:11,13;100:20; 34:5 43:11;45:10;55:5; 7:21,24;11:16; 80:2 102:20;142:9,13,17, bones (1) 71:18;73:20;133:13 17:15;21:7;25:10; bear (2) 21,23 110:4 brings (1) 31:18;35:1;37:20; 80:16;81:25 Berger's (4) Borough (1) 14:8 42:4;44:24;45:14; bearers (1) 26:7;60:7;72:5; 80:18 Britain (1) 47:25;53:9;54:21; 50:24 77:19 borrowed (1) 78:19 55:11;56:3,13;57:24, Beats (1) Berlin (3) 106:11 broad (7) 25;58:19;59:15; 8:18 11:12;53:8,9 both (26) 62:12;65:3;66:10, 62:25;63:15;64:1,4, became (3) besides (1) 10:10;11:11; 10;69:7;83:4;102:15 19;65:22;66:24; 49:1;65:7;109:6 59:10 26:14;29:19;38:15; broaden (1) 67:15;69:8,21;71:1, Beck (1) best (7) 41:21;44:20;61:22; 37:4 10;77:17;78:23; 108:5 34:19;58:7;66:8; 75:8;76:7;77:4; broadened (1) 80:2,25;81:1;83:24; become (5) 67:11;78:9;102:5; 79:15;84:2;91:6; 6:15 84:1;88:9;89:13; 60:23,24;120:23; 123:1 93:9;94:1;99:12; broader (6) 92:3;94:25;95:1,22; 128:15;139:7 better (12) 124:19,20;130:22, 8:9;63:24;65:6; 96:18;101:11;102:4; beds (2) 48:22;54:3,3,5; 22;133:11;136:2; 93:2,23;129:23 104:10,12,21,22; 66:13;67:19 69:19;92:1;95:4,4, 138:10,18;140:1 broke (1) 107:24;108:19; beginning (1) 13;96:1;136:16,21 bother (1) 65:12 110:14;111:16,18; 77:2 Betz (1) 46:22 Brooklyn (4) 112:7;113:8;115:7; behalf (7) 3:10 bottled (1) 48:10;49:10; 116:1;117:13,19; 42:3,12;43:11; beyond (4) 83:23 50:25;52:5 121:18;125:6,21; 56:20;73:9;90:2; 8:3;17:12;28:9; bottom (2) brought (7) 134:19,20;136:17; 108:5 54:15 6:1;52:8 5:23;42:24;59:16; 137:5;140:2;142:4 believes (1) Bianchi (1) bottomless (1) 115:14;116:5; candidly (3) 140:16 133:1 65:18 133:17;135:8 14:22;17:20;23:5 belong (2) Bifolck (1) bounds (2) brushed (1) capable (1) 74:16;78:6 49:17 17:12;22:18 98:13 108:17 belongs (2) big (4) Bowling (1) built (1) capacity (6) 44:5;83:10 89:18;121:20; 30:18 51:11 57:25;59:13; below (5) 139:7;140:19 brain (1) bunch (1) 60:16;72:15;73:3; 98:21;99:18,24; bigger (1) 5:21 113:21 92:16 100:3;106:19 79:17 branch (2) burden (2) capped (1) Ben (2) Billings (1) 7:3;79:25 61:4;112:13 130:19 115:24;131:16 11:13 breach (2) business (7) caps (1) bench (2) billion (3) 133:18,20 110:18;119:18; 139:1 39:12;122:21 130:20,23;139:3 break (4) 120:19,20;124:3,3; Car (5) benchmark (2) Bingham (1) 56:11;107:21; 140:14 38:17;65:10,24; 61:24;99:20 61:10 108:1;114:21 buy (1) 66:13;67:17 beneath (1) bio (1) breaks (1) 84:6 card (1) 6:9 56:11 4:7 Byrne (2) 79:4 benefit (3) biodata (1) bridge (1) 3:10,15 Cardinal (2) 17:24;84:8,9 74:18 123:4 16:4,20 benefitThe (1) bit (2) brief (10) C careful (2) 76:20 95:18;130:16 35:19;39:21; 12:18;17:11 BENJAMIN (1) Bloomington (1) 45:20,25;52:25; California (7) carefully (2) 115:24 20:5 54:5;57:21;65:16, 8:13;27:11;28:3; 57:18;103:7 Beretta (3) blow (3) 19;102:22 33:8;39:6;49:21; carved-out (1) 10:15,16;16:12 9:13;17:11;72:25 briefing (5) 79:15 113:19 Berger (76) blowing (3) 5:22;16:2,23;48:9; call (4) carwashes (1) 3:9;5:5,6,13,14,15, 22:15,17;54:15 129:23 37:1;48:15;49:8; 69:4 21;6:16,21,24;7:12, blurred (2) briefly (3) 128:15 case (207) 15;8:6,11,15,19,24; 60:23,24 32:9;107:18; called (6) 6:2,10,14,17,18; 9:3,17;11:7;12:11, board (2) 131:22 26:24;50:17; 7:10,25;9:8,11,12; 16;13:5,23;14:5,8, 4:20;10:15 briefs (1) 78:25;80:22,23; 12:6,20;13:10;14:10, 13,19,24;15:9,20,23, boatable (2) 106:10 119:20 11;15:16;16:5,8,12; 25;16:2,18,21,23; 53:5;103:1 bring (19) Camden (1) 17:6,8;18:16;20:4,6, 17:6;18:23;19:14,16, boaters (1) 24:4,7;42:23,23; 10:15 6,23;21:17;22:12;

Min-U-Script® eScribers, LLC | (973) 406-2250 (3) beach - case [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

23:20,23,25;24:1,13, categories (4) 20:16;48:9;52:4; 17:21;56:1;85:12 25;135:1,20,23; 14;26:12,14,23;27:2, 42:18;62:13; 122:13,18,25;126:22 citation (1) 136:22;138:13; 5,9,9,13,15;29:10,19, 101:25;102:15 chancery (3) 22:2 139:19,25;140:5,8, 22;30:18;31:9;32:2, causation (3) 119:23;120:11; citations (4) 11,12;141:9,13,19 13;33:8,10,17,20; 33:5,11;62:2 129:9 40:19;63:7;94:9; claiming (1) 35:8,20,22,23;37:8; cause (56) change (6) 142:20 32:16 38:6,17,18,18,24; 7:1,20;8:1,16;9:9; 22:9,10;54:1,9; cite (17) claims (47) 39:7,13,14;40:7; 13:21;17:23;18:1,7; 86:3;140:14 11:22;38:4;40:17; 6:5;9:9;10:4,19; 41:5,6,8;42:9,18; 23:16;24:4,21;31:1, changes (3) 49:20;50:4;65:18; 11:22;14:1;16:13, 43:24;45:1,7,10,17, 8,11;34:7,8,13,17; 55:6;60:5;73:16 83:5;93:4;97:4,5,8; 14;20:2;30:3,7; 24;46:15;47:11,18; 53:17;57:5;58:3,10, changing (5) 106:5;113:20,20; 33:13;41:21;42:23, 49:7,14,17;52:23; 13,17,25;59:4,5,8,10, 27:7;30:23;54:2; 115:3,3;142:15 23;44:22;59:19; 53:1,18;54:4,23; 21;60:14;61:12,14; 76:19,22 cited (31) 66:24;67:23;77:13; 55:8,20,21;56:4; 66:9,20;67:22;69:16, charge (1) 10:15;11:21;12:3; 83:10,12;84:4;85:1; 57:19;58:4,6,7,24, 25;72:24;81:4; 7:19 14:25;15:3;20:4; 94:3;108:12;111:12; 24;59:23;61:10; 91:19;92:23;95:8; chart (2) 26:23;33:21;35:18; 120:3;122:22; 62:22,23;63:24; 96:16,20;97:2,4,9, 108:7,9 38:13;39:21;45:25; 124:13;126:14; 65:24,25;67:25;68:4, 13,14,20;98:4,9; ChemFab (1) 47:5,7;49:10;54:4; 128:9,17;130:6,8,9, 5,12,19,23;71:2; 102:4;103:12 87:15 55:3;57:18,21; 12,15;132:22,23; 72:17;74:7;75:10; caused (3) chemical (1) 58:22;59:25;78:1; 133:8,8,23;136:15; 77:2,15,20,24;78:1; 18:8;51:3;116:8 86:3 79:15;80:18;81:18; 137:3;139:7,23 79:12,18;82:25; causes (17) chemicals (9) 93:16;94:5;98:17; clarification (1) 84:15,16;88:25; 22:8,13,21;36:9; 12:8;13:20;37:20; 106:10;133:1;142:7 54:20 89:12;90:1,8,15,19, 38:11;55:9,10;56:5; 86:16;109:1;119:18; cites (6) clarity (1) 20,21;91:3,6,11; 57:17,25;59:15,17; 120:19,25;140:14 16:12,12;27:12; 31:1 93:5,9,11;94:6,22; 61:5;72:16;73:2; Chemours (53) 58:17;62:5;77:14 class (1) 95:18;96:5;97:6,8; 96:24;97:22 3:11,12;56:21; citing (7) 91:16 100:6;103:9,13,14; causing (2) 111:15;114:14; 25:14,25;35:20, clause (1) 104:1;106:1,2,10,13; 27:18,19 119:20,21,22;120:1, 22;40:15;99:4; 123:24 108:20;109:12; caution (1) 9,11,16,18,21,22; 121:24 clauses (1) 110:11;112:4,8,11, 37:14 121:11,12,13,16,18, citizenry (3) 123:22 13;113:18;115:4; cautionary (1) 21,21;123:6,11,14; 42:12,14,22 clean (1) 116:11;117:6,6,17; 100:3 124:23,25;126:1,2,5; citizens (3) 43:2 118:6;119:23;120:5, cautious (3) 127:24;128:14,22, 53:4;102:25;103:1 cleaner (1) 9;121:5,14;122:7,11, 11:11;12:18;17:9 25;130:3,6,20;131:8, City (6) 12:20 14,17,20;123:14; Center (3) 20,23;132:1,2,4; 11:25;20:5;33:17; cleaning (1) 124:15;125:4;126:6, 26:24;29:22;52:19 134:15;135:7; 35:20;41:9;53:1 12:23 19;127:13,16; Central (14) 139:24;140:1,6,7,13, civil (2) cleanup (1) 128:20;129:12,14, 9:19;23:22;24:22; 25;141:3,12 23:15;32:20 39:10 14;133:1,10,16,17; 26:11;27:2;29:10; Chemours' (1) claim (104) clear (17) 134:4,19,20;135:4,6, 76:6,17;77:20;78:1, 127:9 6:12;9:23;10:1,6; 9:7;11:20;15:17; 13;136:14,22,24; 13;79:12;80:19;96:5 chestnut (1) 12:6;13:11;14:15; 29:10;47:20;52:24; 140:8;141:14;142:6 certain (13) 37:18 17:15;18:13,15,18; 54:8,25;55:23,23; case-by-case (1) 43:16;60:9;63:3,8; chestnuts (1) 23:14;24:7;25:4; 57:15;58:19;59:24; 66:4 69:2;91:8;93:22; 36:8 31:21;32:10;35:5, 76:24;99:23;125:2; cases (68) 114:19,20,21; Chicago (2) 14;39:19;40:7,12; 128:7 5:18;8:22;16:13; 119:22;127:7; 35:21;50:13 41:22;42:4;43:11, clearly (9) 19:25;23:4;24:17; 130:19 child (1) 22;44:1,5,8,12,15; 12:11;22:14; 33:6,9,21;34:6,9,9, certainly (10) 53:19 45:1,14,25;46:8; 31:24;38:11;84:23; 10;35:18,19,19,21; 3:21;56:1;57:23; choice (1) 48:12;61:25;64:13; 85:25;93:5;95:9; 36:6,8,10;38:4,13, 66:21;69:2;82:21; 112:12 70:22,24;71:5,18; 114:6 16,25;40:10;41:3,3, 92:4;93:14;103:11; chooses (1) 72:9;73:1,7,17,20; client (1) 8;47:8;49:20;52:9; 124:6 22:19 77:13;82:21,24; 89:6 57:21;58:22;59:25; cetera (10) chose (2) 83:14,22,25;84:3; clients' (1) 78:11;79:15,24; 17:25;24:17; 37:2;50:23 85:1;88:13;89:11; 51:16 80:18;84:3,12;90:19, 41:16,16;60:21,21; circle (1) 119:17;120:8,15; client's (1) 25;91:1,9,10,21; 79:21;83:13;87:5; 55:5 121:7,9,15;122:13, 6:4 94:4,9,13,14;95:1,3; 95:17 circuit (10) 15,20;124:9,12; close (3) 96:21;97:4,8; challenged (1) 10:19;33:17; 125:5,20,23;126:3, 27:4;69:8;97:10 105:24;107:10,11; 18:19 38:24;41:10;57:19; 21,25;127:8,14,17, closely (2) 115:3;116:7;118:16, Champlain (2) 92:14,18;106:9,12, 24;128:11,14,21; 59:7;126:14 19;132:25;134:22, 6:21;53:12 14 131:9;132:11,12,16, closest (1) 22;135:5;142:7,14 chance (7) circumstances (3) 16;133:18,18,19,21, 109:21

Min-U-Script® eScribers, LLC | (973) 406-2250 (4) case-by-case - closest [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

Cloverleaf (1) compared (1) 86:24;123:11 18:16 controversial (4) 38:16 138:1 concisely (1) consumer (3) 48:8,8;49:13;52:6 Cncv (1) compel (1) 61:2 47:19;52:11;116:9 controversy (1) 3:6 129:11 conclude (1) consumers (1) 50:1 co- (2) compensate (1) 92:4 3:22 convened (1) 25:14;72:6 29:23 concluded (1) consumer's (1) 3:1 cockroach (1) competency (1) 143:4 46:21 conversations (1) 11:4 73:7 conclusion (1) contact (1) 117:8 co-counsel (1) complained (1) 24:15 133:18 conversion (1) 24:25 120:7 concrete (1) contaminants (1) 46:1 cognizant (2) complaining (1) 100:7 105:23 convinced (1) 25:24;136:18 84:5 concurrently (1) contaminated (4) 6:2 coin (1) complaint (35) 132:23 12:20;42:20;44:3; Conway (1) 35:17 8:2;9:10;34:16; concussion (1) 89:15 32:13 co-lead (1) 43:16;61:19;62:6, 85:8 contamination (7) coordinated (1) 116:22 20;64:3,9,19;65:10; conditions (1) 13:1;42:14,16,25; 83:1 collateral (1) 66:17;67:3,14; 76:19 66:15;83:15;116:8 copies (1) 128:15 68:17;87:15;88:20; conduct (2) contending (1) 52:1 colleague (3) 89:1,2,5,22;93:18; 7:9;30:19 49:13 co-possesses (2) 4:13,18;58:18 94:3;101:5,23; confidential (4) context (6) 72:4,11 collect (6) 104:12,15,20; 123:7,9,17;124:4 32:20;36:6;57:7; co-possession (2) 42:2;111:18; 108:24;109:17,22; confidentially (1) 77:21;94:12;134:10 71:19;72:15 120:4;121:15,16; 110:17;131:21,22; 123:21 contingent (4) co-possessors (1) 124:19 132:5 conflict (2) 132:12,18;139:19, 71:23 comatose (1) complaints (4) 125:23;126:15 20 co-possessory (2) 53:20 66:19;89:1,3; confronted (1) continuation (3) 74:12,24 comfortable (1) 91:10 62:23 114:23;115:5,8 copy (3) 79:14 complaint's (1) confusion (1) continue (2) 81:19;116:17; coming (2) 131:19 16:10 50:8;107:21 129:17 53:7;73:16 complete (1) Connecticut (5) continued (1) core (1) commend (1) 127:1 48:22;49:7,11,18; 88:8 21:21 106:23 completely (1) 50:11 continuing (1) Corp (1) comment (10) 37:8 connection (1) 125:19 40:5 14:25;15:11;16:7, complex (2) 100:19 contract (2) corporate (4) 9,11,25;39:23;40:2; 112:8;126:19 conservative (3) 65:25;133:20 108:21;109:5; 46:19;55:3 compliant (3) 11:10;17:4;36:5 contractual (2) 110:2;119:24 commerce (2) 109:20;113:8; consider (2) 114:12;133:21 Corporation (1) 10:2;77:6 132:8 115:14;116:22 contradict (1) 106:17 common (28) complicated (1) considered (2) 131:21 correctly (6) 10:8;17:19;19:4, 63:24 30:21;37:20 contradicts (1) 8:17;10:16;11:14; 20;22:15;23:6,15; complication (1) consistent (2) 132:8 19:9;36:24;63:6 26:23;29:25;32:8; 111:11 39:7;96:4 contrast (2) Corteva (9) 52:21;53:15;54:1,9, Components (1) consistently (1) 14:9;132:5 3:13,14;4:15; 12;55:7,14;58:3; 133:16 80:24 contribute (1) 108:5,19;109:5,14; 60:4;65:10;70:3; compounds (2) consolidation (1) 35:3 113:12;116:12 71:17;72:24,25; 61:21;63:22 109:11 contributes (1) Corteva/New (1) 76:11;94:16,24; conceded (1) constitute (1) 86:11 117:7 126:24 138:9 34:14 control (28) cost (3) community (1) concept (9) constitution (8) 10:13;15:13; 39:14;88:7;125:16 62:16 11:15;19:4;53:24; 26:14,15;29:19; 16:15;20:1,22;21:4, cost-benefit (1) companies (17) 70:4;80:16;92:21; 31:23;60:4;78:3; 16;33:5,6,7;34:7,18, 106:21 38:14;56:21; 96:17;97:12,13 79:10;102:24 25;35:1,4,12,14; counsel (15) 68:16;108:11,18; concepts (2) constitutional (2) 36:24;64:16;69:14; 25:15;35:20; 109:23,25;112:18, 17:19;54:7 9:7;53:11 73:11;75:4;104:10, 38:25;50:4;52:2,18; 22;113:2;114:20,21; concern (4) Constitution's (1) 17;125:6;127:4,7; 56:22;111:13;115:2; 117:1,1;140:2,19,23 14:16;113:4; 53:4 138:10 116:21,22,24;117:2, Company (12) 121:6;134:11 constrain (1) controlled (1) 5,7 3:8,10,11,13; concerned (1) 51:6 21:13 counsels (1) 38:17;50:13;114:3, 35:11 constructive (1) controlling (4) 138:11 7;115:4;119:20; concerning (1) 137:4 31:15;48:4,7; count (6) 120:23;132:1 97:24 construed (1) 76:18 47:4;63:11;67:24; comparative (3) concerns (4) 93:24 controls (1) 102:1;114:2;115:10 46:25;47:2;49:4 26:13;29:19; consume (1) 37:25 counted (2)

Min-U-Script® eScribers, LLC | (973) 406-2250 (5) Cloverleaf - counted [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

76:8;90:10 53:2,7,16,21,25; 98:11,15 69:19 decide (7) country (9) 54:8,14,22,24;55:2, courtroom (2) cut (3) 20:16;31:14;37:6, 26:2;34:9,10;50:7; 6,7,12,13,19,24;56:2, 51:18;125:22 4:25;77:2;84:10 7;87:7;106:20; 77:8;91:22;118:16; 2,8,12,14,16,18,23; courts (22) cutoff (2) 117:19 134:15;139:6 57:3,10;58:4,9,11; 16:10;20:9;23:24; 99:1,2 decided (6) counts (1) 59:6,6,14,22,24; 29:14;34:8,10;39:5; 7:20;49:3;79:3; 61:16 60:3,17;62:17;63:1, 49:6;51:6;77:8;79:7, D 86:19;114:21; County (3) 6,12,16;64:1,5,8,15, 11;80:24;81:3,22; 133:22 10:15;40:13;81:20 23;65:1,3,6,17; 87:5;103:10;132:22; daily (1) deciding (1) couple (3) 66:16;67:2;68:8,14; 133:6;134:6;136:16, 101:2 106:21 38:13;75:12; 69:7,12;70:6,9,11, 21 dam (1) decision (39) 132:25 18,22,24;71:3,16,22; courts' (1) 12:4 6:7,9;8:3;10:9,15, course (25) 72:2,8,11;73:4,10, 24:11 damage (6) 18;11:12;14:13,21; 3:24;22:8;26:15; 15,24;74:5,9,13,17; Court's (12) 13:18,22;61:25; 15:3;17:10,14,25; 39:25;63:2;75:19; 75:10,14,19,24; 5:24;13:9;16:18; 90:20;99:21;101:7 19:5,6;20:12;21:5,5; 79:24;81:9;97:11; 76:10,12,25;77:17, 24:2;27:4;28:12; damages (27) 24:2,16,24;26:18; 98:3;99:9;104:10; 19,25;78:8,12,14,22; 52:19;55:13;101:24; 8:16;23:15,16; 29:21;30:11,17; 107:20;108:21; 79:13,19;80:13,20; 104:2;122:3;127:4 24:4;25:11;30:20; 31:19;34:20,24; 109:5,11;110:15; 82:9,20,23;83:3,21; cover (4) 41:1,6,10,13,15; 35:6;39:8;40:5; 119:24;120:19; 84:1,17;85:3,5,15, 11:5;56:13;57:8; 42:3,11,18;44:1,23; 41:10;42:10;50:11; 122:22;123:7; 18,21;86:5,7,18; 114:15 53:19,23;83:13; 57:18;58:15;106:23; 127:12;130:19; 88:11;89:10;90:2,4, covered (4) 84:10;85:1,2;88:3; 113:20;127:4 136:16,21 16,24;91:14;92:8,11, 57:10,11;75:7; 93:2;95:6;97:1; decisions (17) COURT (533) 25;93:5;94:4,10,17; 142:3 120:2 7:23;8:25;10:24; 3:2,3,5,16;4:3,9, 95:14,24;96:5,9,11, covers (1) dangerous (1) 15:12;24:11;32:11, 11,14,19;5:7,12,14, 18;97:17,19;98:2,18, 31:22 17:20 19;51:4;55:16,17,17, 17,20,24;6:2,7,13,20, 23;99:1,4,7,15,22; Crawford (2) day (6) 18,23;56:6;87:12; 23;7:11,13,16;8:4,5, 100:5;101:20;102:1, 43:23;44:4 30:2;111:19; 95:12,12 6,9,14,18,21;9:2,6,6, 17,22;103:6,7,10,15, create (10) 112:8;121:19; declaration (1) 16;10:10,18,19,22; 20,22,24;104:2,4,9, 6:10;7:1,16;9:4; 122:14;124:6 13:2 11:5,9,10,13,17; 10,11,17,23;105:2,9, 19:20;28:21;72:23; days (3) declare (1) 12:7,13,17,21;13:3, 18;106:1,4,6,8,13,17, 92:23;97:2;128:16 28:5;36:15;80:5 21:18 4,13,20;14:2,7,12,18, 25;107:2,4,9,13,15, created (5) DDT (1) declared (2) 23,24;15:8,13,15,18, 20,25;108:7,14; 9:24;13:7;16:10; 36:15 22:14;38:8 22,24;16:1,17,20,22; 109:18;110:8,14,16, 76:20;108:24 de (3) deed (1) 17:4,5,9,11;18:5,22; 25;111:2,5,7,10,20; creating (4) 3:9,15;108:5 7:8 19:2,12,15,18;20:8, 112:14,23;113:3,5, 17:23;29:4;32:18; dead (1) Deeds (1) 8,11,14,16,18,21,24; 10,12,14,22;114:9; 59:5 90:10 59:25 21:3,5,5,8,11,15,23, 115:12,14,21,23; creation (2) deadline (1) deemed (2) 25;22:6,20,25;23:1, 116:1,5,10,16,19; 16:16;53:17 88:1 16:3;79:17 5,8,10,13,19,24;24:7, 117:20,23;118:1,11, creditor (1) deal (9) Deepwater (1) 10,13,15,17,18;25:1, 20,22;119:3,7,12,15, 132:15 68:6,6;77:10;80:6; 90:8 13,14,17,19,21,24; 19,23;120:4,10,11, creditors (1) 111:12;122:4,21,25; defect (4) 26:4,5,7,12,18,21; 13,17;121:24;122:1, 131:24 123:2 32:25;46:7,10,12 27:6,10,12,22;28:1, 4,6,16,18;123:17,20, critical (3) dealing (19) defects (1) 3,8,9,12,18,20;29:1, 23;124:1,5,10,17; 26:13;29:18;57:1 6:7;27:20;29:21; 32:24 4,12,13,16;30:8,10, 125:6,10,16,24; cross (2) 30:17;32:2;35:22; defendant (10) 16,17,19,24;31:3,5, 126:4,7,10,13,16,20, 81:11;123:3 38:14;46:24;49:4,6; 14:6;15:14;21:13; 14,18,20;32:3,14,21; 24;127:3,15,20; crowd (1) 53:23;55:22;61:3; 36:9,10;38:19; 33:3,8,10,23;34:2,2, 128:2,23;129:3,6,9, 126:16 66:11;67:10;77:3,3; 104:16;120:22; 3,22,24;35:1,8,10, 10,15,15,25;130:8, cubbyholes (1) 128:10;141:14 125:1;133:24 25;36:3,18,23;37:6, 13,25;131:4,10,13, 94:14 deals (5) defendants (19) 10,12,16,16,22;38:2, 15,18;133:2,5,14,19; cure (1) 114:11;116:7,11; 16:4;34:16;38:4; 18;39:8,9,10;40:14, 134:3,4,9,17,23; 101:22 119:16;126:11 40:25;45:12;47:7; 17,21,23;41:21,24; 135:9;136:5,7,10,23; cured (4) dealt (6) 76:6;84:9;87:13; 42:1,7,10,24;43:4,6, 137:9,22,25;138:5,7, 104:12,12,14,21 6:8;13:10;19:16, 111:17,23;120:8; 10,20,22;44:7,10,14, 12,17,20,24;139:4, curious (1) 17;21:7;123:6 121:20;124:14,20; 21;45:3;46:4,9,11, 12,14;140:18,24; 123:18 debate (2) 132:10;133:10,11; 15,21,23,25;47:5,7,9, 141:25;142:3,12,14, current (2) 37:13;70:4 134:19 11,14,23,25;48:2,6, 19,22,24;143:3 22:17;51:17 debtor (1) defendant's (5) 17,20,23,24;49:7,12, courtesy (1) currently (2) 137:17 10:11;13:6;15:7; 16,18;50:12;51:20, 75:17 18:19;63:23 December (1) 36:11;40:1 25;52:9,13,15,17,24; courthouse (2) custody (1) 100:21 defending (2)

Min-U-Script® eScribers, LLC | (973) 406-2250 (6) country - defending [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

25:18;84:23 51:14 diligence (2) 21:22 doctor (1) defense (2) design (8) 116:23;117:13 dismiss (35) 85:7 50:1,4 32:24,25;46:7,10, diminished (1) 3:21;4:10,13,15; doctrine (66) defer (1) 12,14;47:4;50:8 83:16 6:4;9:10;20:14; 6:6,8,18;7:6,24; 26:22 designs (1) diminishes (1) 21:21;26:21;28:16; 8:7;9:1,5,8,15,21; deficiencies (1) 18:20 114:22 34:1,23;38:16;41:7, 23:18;24:3;25:3,7,8, 104:11 desire (1) diminution (3) 8,9;45:8;57:7;61:8; 10;26:9,16;27:14,16, deficient (1) 116:13 13:5;43:8,18 68:12;90:1;91:4,5; 22;28:1,4;29:11,25; 68:18 destroys (1) Dine (1) 92:6;99:25;101:19, 30:22;31:7,24,24; define (2) 30:20 20:6 22;104:16;108:11; 37:2,23;42:13,21; 26:8;93:16 detail (7) D-I-N-E (1) 113:12;118:18; 45:2;46:16;52:21; defined (3) 5:2;65:13;66:18; 20:6 126:21;128:23; 53:3;54:6,12;57:5, 24:7,21;132:16 110:2,23;113:7; direct (2) 129:8,16 14,23;58:10,12,21, defines (2) 137:25 108:20;109:2 dismissal (3) 23;59:11;71:11; 25:12;72:5 detailed (1) directly (6) 20:20;22:24;23:21 75:25;76:1,3;78:18; defining (2) 112:18 23:13,25,25; dismissed (2) 92:20,22,22;93:1; 18:1;95:6 detailing (1) 28:15;41:11;132:8 64:13;141:20 96:3,13,14,19;97:21; definite (14) 118:10 disagree (3) dismisses (1) 102:2,23;114:23; 57:6;61:7;68:9; details (3) 11:16;120:6;141:7 133:20 138:16 84:13,15;89:23; 66:25;91:12; disagrees (1) dismissing (2) doctrines (4) 90:3;91:5,6,19;92:5; 111:11 30:4 100:6;101:22 57:15,16;61:1; 101:6,18;102:13 determinations (2) disciplinary (1) displaced (1) 76:25 definition (1) 7:6;18:10 24:13 38:10 document (2) 86:2 determine (3) disclaiming (1) dispute (7) 64:8;142:10 Delaware (18) 96:16;97:20; 138:18 32:5;48:15;97:3; documentation (2) 119:23;120:11; 121:21 disconnect (1) 119:1;120:21; 111:3;115:18 123:15;125:25; determined (4) 103:13 123:11;124:3 documents (6) 126:6;127:1,3,8,10, 66:4;103:5; discover (1) disputed (1) 110:1,2;112:24; 13;129:4,9,24;130:2, 114:19;126:25 101:13 132:18 114:10,16;141:11 17;134:4;138:10; develop (1) discoverable (1) disputes (1) dog (1) 139:9 95:18 123:13 124:3 136:19 deliberative (1) developed (1) discovery (38) disputing (5) doled (1) 51:12 76:13 63:1,2;64:19; 58:15;89:16; 43:12 deliver (2) developing (1) 66:25;68:1,20; 98:18;113:22,23 dollars (4) 38:15,19 59:18 87:22;89:6,9;90:5; dissipation (3) 39:14;43:6; demand (1) development (1) 114:16;116:24; 131:8;134:7,11 130:23;139:3 11:19 22:10 117:3,12,18;122:9; distinction (5) done (17) denied (7) dicta (3) 125:3,14;128:17; 13:12;60:23;61:1; 11:9;22:18;28:10; 33:25;41:7,8,9; 6:16;8:3;9:12 129:3,4,16,17,21; 102:12;103:16 30:7;36:3;55:25; 45:7;135:10,15 dictate (3) 130:5;135:11,12,13; distinguish (2) 76:7;81:22;88:1; deny (2) 3:23,25;79:2 136:17,17,18,20,24; 14:13;44:7 95:17;102:16; 15:10;55:3 dictated (1) 137:12;138:3;141:6, distinguishable (2) 104:13;116:25; denying (3) 38:8 15,18 38:5,12 118:9,15;122:9; 125:2;136:14,22 difference (11) discreet (1) distract (1) 129:4 departing (1) 12:15;44:10; 137:1 141:23 door (1) 26:23 47:15;98:16;102:12; discrete (2) distribute (1) 12:14 Department (1) 121:17;122:5; 141:6,16 87:18 doubt (1) 79:25 123:16;140:9,19; discretion (3) distributed (1) 141:9 departure (1) 141:22 122:3;126:24; 34:11 down (18) 54:10 differences (1) 128:6 distributing (1) 6:1;12:8;13:21; depend (2) 57:2 discrimination (1) 77:5 19:24;22:13;33:11; 32:1,4 different (29) 91:12 distributors (2) 34:5;36:14;40:19; depending (1) 12:9,11;18:10; discuss (2) 15:16;54:22 95:11;112:14; 66:4 41:17;44:24;46:24; 41:4;57:2 District (3) 119:10;126:18; depends (1) 60:7,13;65:7,9;74:1; discussed (2) 20:5;26:18,19 130:10;136:11; 127:6 75:5;76:2;77:7,10; 20:7;70:4 divergence (1) 138:14,21;139:2 depositions (1) 78:14;80:21;83:6; discussing (4) 8:24 draft (3) 117:4 84:4;93:7,22,22; 17:1;36:24;38:25; divested (1) 15:18,19;48:3 deprivation (1) 101:25;106:20; 141:11 79:11 drafts (2) 27:18 124:2;130:16; discussion (4) dividend (1) 49:2,3 described (2) 133:10;134:2,14 3:20;69:14;70:5; 132:3 dragged (1) 71:25;122:19 differently (1) 118:6 docket (1) 112:4 describing (1) 103:19 disfavors (1) 3:6 drags (1)

Min-U-Script® eScribers, LLC | (973) 406-2250 (7) defense - drags [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

122:7 34:25;63:4;70:5; 71:18;73:2;94:2 116:14 et (10) dramatic (1) 77:19;82:12;107:13 else (12) Enterprises (1) 17:25;24:17; 55:6 early (1) 4:8;46:7;76:14; 38:18 41:16,16;60:20,21; dramatically (1) 65:20 87:17,17;107:20; entertain (1) 79:20;83:13;87:5; 52:20 earn (1) 115:21;116:2; 17:17 95:17 drastically (1) 79:7 127:21;138:13; entertaining (1) evaluate (1) 99:10 easement (1) 142:2,15 5:24 96:18 drawing (1) 7:9 else's (1) entire (2) even (30) 78:15 easier (1) 102:9 9:10;10:25 6:17;7:22;8:3,15; Drill (2) 107:15 elsewhere (1) entirely (3) 18:1;22:25;28:4; 6:1;19:24 easy (5) 32:11 29:7;74:8,10 45:16;49:25;51:6, drink (3) 36:7;113:3,5,8; emails (1) entities (6) 11;58:14;65:16; 81:9;83:16,22 135:13 141:10 108:24;110:3,13; 66:11,20,22;67:18; drinkable (1) Eaton (1) employ (1) 111:10;112:11; 71:14;73:19;77:20; 80:10 13:13 136:20 118:17 82:7;86:5;90:15; drinking (9) economic (3) enable (1) entitled (6) 97:3;102:9;103:21; 61:22;62:15,16, 83:13,24;84:10 96:25 22:23;34:21;79:5, 109:8;122:9;139:21; 18;99:12;100:2,12, economical (1) encroachment (1) 6;125:11;127:12 141:17 23;106:22 128:19 12:1 entrenched (2) event (2) drive (1) economy (1) end (11) 53:3;102:24 123:13;126:23 36:14 128:7 30:2;55:8;90:23; enumerated (1) eventually (2) dry (3) ecosystem (7) 111:18;112:8;120:5; 109:13 87:24;94:22 12:20,23;27:19 82:13,14,19;83:1; 121:5,19;122:14,14; environment (1) Everybody (1) du (1) 84:7;87:6,17 135:4 67:18 4:20 3:9 edition (1) ended (3) environmental (20) everyone (3) due (3) 10:23 42:9;76:16;109:1 6:12;7:16,17;9:4, 3:3;112:7;141:23 26:11;116:23; effect (4) ending (1) 14,21;10:1;25:25; evidence (5) 117:13 7:21;16:3;68:4; 23:8 26:2;79:25;90:19, 40:9;59:18;86:20; dumped (1) 86:15 enforce (1) 25;122:22;125:4; 88:14;89:15 13:20 effective (1) 81:23 126:19;128:9;130:6; evolution (2) DuPont (66) 54:19 engage (1) 138:2;139:23; 76:25;96:3 3:13,15;4:12; efficiency (4) 117:12 141:23 evolutionary (3) 24:23;56:20;87:16; 83:8;122:1,24; engaged (3) equitable (2) 94:16,24;95:5 108:5,6,19;109:6,14, 128:7 10:1;118:6;131:23 122:23;132:19 evolve (2) 23;110:18,20; efficient (1) engaging (1) esoteric (1) 76:18,25 111:14;113:13; 122:3 125:15 21:2 evolved (3) 114:19;116:12; effort (2) English (2) especially (2) 27:7;76:21;79:8 117:7;119:17,21,22; 51:19;83:2 111:14;126:2 15:11;16:24 evolves (1) 120:2,9,10,16,20,21, eggs (1) enhance (2) essence (1) 80:5 24;121:11,12,12,16, 90:13 78:4;82:13 97:3 evolving (3) 21,22;123:6,11,14; EI (1) enjoy (3) essential (2) 96:17,18,19 124:21,25;126:1,2,5; 3:9 44:17,19;75:17 30:21;80:3 exact (5) 127:12;128:14,22, eight (3) enjoyment (4) essentially (17) 9:7;105:23; 25;130:3,6,21;131:8, 17:17;61:3;76:8 15:5,7;18:5;24:9 7:17;9:17;23:18; 118:12;135:8,9 20,20,23;132:1,7; Eighth (1) enormous (1) 28:9;68:2;71:4;75:6; exactly (15) 134:16;135:7; 38:24 59:4 84:2;96:14;99:9; 12:12;34:12,17; 137:19;139:24; Either (9) enough (23) 101:2;102:13; 77:15,23;80:12; 140:1,6,7,13;141:2,3 29:15;51:22;55:7; 40:8;59:18;67:15; 116:21;121:11; 90:17;92:13;99:7; DuPonts (1) 72:9;79:24;126:3; 84:19;85:24;89:11, 127:10;129:4; 111:4,9;118:24; 114:14 139:1,14;140:7 25;91:20;92:4;95:9; 138:15 130:11,14;139:19 DuPont's (4) Electric (6) 96:7,7;98:9;100:10; establish (4) examining (1) 36:13;108:16; 13:10;57:20;60:1, 105:12,15;111:8; 37:11;59:19;98:9; 96:21 109:15;121:18 2;92:13;103:8 112:15;114:7,15; 99:13 example (27) during (1) elegant (1) 117:16,17;139:8 established (3) 14:2;24:12;26:11; 90:21 94:14 enrichment (2) 17:19;61:20;98:7 32:12;33:7;39:6; dust (2) element (15) 133:18,20 establishing (2) 41:5;43:9;49:14; 27:19,19 20:22;33:7;34:25; entail (1) 29:6;99:10 61:19;63:10;65:9; duty (2) 35:1,12,14;69:16; 54:10 estate (1) 66:19;69:3;70:16; 13:15;82:18 70:2;71:21;73:1,12; enter (3) 71:5 73:7;79:13;81:10; 75:1,6;98:4;102:7 12:24;39:17;112:9 estates (1) 85:3,4;90:7;94:17; E elements (9) entered (1) 79:17 100:2;102:1,6; 24:6;25:12;28:22; 118:17 estimate (1) 127:9;137:7 earlier (6) 58:16;59:17,17; entering (1) 88:10 examples (1)

Min-U-Script® eScribers, LLC | (973) 406-2250 (8) dramatic - examples [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

40:10 expanded (3) 58:11;61:11,11,12, 20:5;34:22;45:6; 96:13 exceed (2) 20:9;27:15,24 13;62:1,2,14,14,20, 94:17;116:6 finishes (1) 67:8;78:12 expanding (2) 21;64:2;66:11; feel (5) 123:15 exceeded (3) 29:14;77:22 67:20,21;69:1,11; 76:24;81:11; firefighting (1) 63:20;100:25; expansion (2) 73:18;74:14;95:1; 89:19;115:9;118:22 116:8 101:8 53:15,18 97:3;98:17;101:8; fell (2) firms (2) exceedingly (3) Expect (1) 102:8;118:16;123:9; 98:10;105:16 51:16;128:16 65:16;69:7;110:7 50:18 124:23;140:15 felt (1) first (25) excellent (2) expectations (3) factor (1) 93:9 4:10;6:6;23:16,23; 10:17;65:14 46:22;47:19;52:11 137:16 fencing (1) 28:14;30:14;31:18; except (3) expense (1) factors (3) 12:2 48:2,25;49:20; 18:19,19;29:7 112:4 137:2,5,13 Fermenta (2) 53:15;57:4;58:9,14; exception (2) experts (3) facts (5) 40:4,11 67:5;68:14;71:7; 109:13,16 86:13;87:25;88:6 22:9;37:11;77:1; few (6) 75:22;85:16;108:20, exceptions (3) explained (2) 96:15;108:23 8:22;47:7;93:16; 23;109:3;110:10; 32:20;113:19,21 53:2;102:23 factual (2) 94:4;128:8;132:3 116:19;118:5 exchange (2) explaining (1) 22:10;95:14 fiduciary (2) first-filed (1) 97:24;140:13 118:13 Faignant (1) 78:7;82:18 138:18 excise (1) explanation (1) 24:12 fifteen (1) fish (8) 105:7 109:17 F-A-I-G-N-A-N-T (1) 47:6 30:18;32:3,4;46:2, exclude (1) explicitly (1) 24:12 fight (2) 4;53:5;90:13;103:1 53:9 58:12 fail (1) 121:22;141:17 fishable (1) exclusive (14) expressed (1) 22:22 fighting (2) 80:11 19:8,11;45:5,9,13; 116:13 failed (1) 125:13,14 fishermen (1) 46:2;69:21,24;71:9; expression (1) 37:9 figure (3) 53:10 73:11;74:9,21,21; 69:19 failure (1) 30:12;90:6;104:22 fishing (1) 81:25 expressly (12) 18:19 figured (2) 80:9 exclusively (1) 22:14;23:1;24:2, fair (7) 75:12;94:12 fit (4) 75:4 20;26:15;32:8; 13:5;66:21;88:5; figuring (1) 9:8;17:21;94:14; exclusivity (8) 33:23;41:3;43:16; 99:19;106:22;138:5, 101:4 109:15 69:16;70:2,17; 109:14,24;112:19 6 file (7) fits (1) 73:22;74:23;75:1; extend (2) Fairlee (1) 66:22;89:12,12, 109:12 102:6,7 97:21;129:14 7:10 25;92:5;95:22;113:8 fixed (1) excuse (7) extended (2) fairly (1) filed (5) 132:18 54:17;71:20;86:9, 30:22;76:19 59:23 84:22;88:20;90:7, flatly (1) 9;102:25;104:20; extension (1) fall (1) 8;91:3 99:17 117:14 30:24 105:14 files (1) flip (1) executive (2) extensive (1) fallacy (1) 91:16 122:6 7:3;79:25 90:11 103:9 filing (2) flipped (1) executor (1) extensively (1) fallen (2) 54:22;73:9 15:9 71:4 51:2 90:11;98:14 filings (2) floating (1) exercise (2) extent (6) famous (3) 110:3;142:8 119:5 37:14;119:11 36:23;44:4;57:8; 12:3;27:9;35:23 final (8) floor (4) exhausted (1) 78:12;83:14;108:16 far (7) 39:12,12;48:3,5; 5:4;67:17;105:13, 142:4 extra (2) 7:13;32:21;35:11; 49:1;56:3;134:13; 16 Exhibit (1) 111:17;136:23 60:8;97:7;111:16; 136:2 Florida (1) 54:22 extraordinary (1) 129:23 finally (1) 49:21 exist (4) 11:18 Fascinating (1) 57:7 flowing (1) 81:22;97:1; extremely (1) 51:21 financial (1) 28:2 130:18;140:25 49:13 father (1) 110:19 flush (1) existed (2) Exxon (2) 26:1 find (6) 114:17 21:17,17 90:3;106:17 fault (5) 21:7;24:16;36:7; foam (2) existence (2) eye-glaring (1) 38:9;46:25;47:2; 80:12;89:13;104:24 116:7,8 115:5,6 10:4 49:4;105:13 finding (1) focus (7) existing (3) fault-based (1) 81:4 10:5;13:6;14:21; 19:20;22:20; F 51:5 finds (2) 43:18;69:14;82:2; 136:17 favor (3) 24:11;104:11 134:6 exists (1) F3d (1) 33:13;41:11;51:2 fine (5) focused (3) 96:16 10:16 FC (1) 56:12,23;98:12; 14:16;102:13; expand (9) fact (38) 3:13 116:1;126:21 141:24 17:16;28:9;29:14; 11:8;12:13;16:10; feasible (2) finish (2) focusing (3) 37:2,17,23;52:20; 19:3,5;20:23;31:8; 18:20;87:5 47:25;85:20 65:23;121:7; 55:14;129:14 36:11;47:4,15; Federal (5) finished (1) 140:12

Min-U-Script® eScribers, LLC | (973) 406-2250 (9) exceed - focusing [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020 focusses (1) 133:25 78:21 govern (1) 21,24;119:10,14,16, 9:20 free (3) germane (1) 74:20 20;120:6,14,18; Followed (3) 81:11;107:16; 6:17 governing (1) 122:2,11,17,20; 4:12,15;81:21 118:22 Germany (2) 46:20 123:19,21,24;124:2, following (2) Freeholders (1) 133:22,23 graft (1) 6,18;125:9,12,18,25; 49:20;68:20 10:16 gets (5) 19:20 126:5,8,11,14,18; footnote (9) friend (2) 13:16;18:25;19:5; grant (6) 127:6,16;139:16; 25:2,5;45:19;51:9; 35:18;58:18 53:14;121:10 7:9;20:19;21:25; 140:22,25 92:12;103:8,15,18, front (5) giveaway (2) 69:1;99:24;113:12 Hacker's (1) 25 58:10;90:23; 77:25;78:2 granted (3) 128:1 footnotes (1) 95:14;98:10,15 given (7) 6:5;65:22;68:12 half (1) 25:22 fruition (1) 8:25;14:6;81:13; granting (3) 4:6 foremost (1) 128:18 87:24;88:20;91:8; 53:4;102:24,25 Hamilton (2) 75:23 full (7) 126:18 grants (2) 78:22;79:1 foreseeable (2) 36:14;55:5;77:1; gives (2) 21:24;124:10 Hampshire (22) 34:11;38:22 88:5;95:8;106:9; 57:23;97:15 grazing (1) 20:5;24:1,16;25:1, form (3) 134:10 Glock (1) 79:6 13,19,24;26:4;28:21; 10:12;30:3,4 functionality (1) 33:8 great (6) 29:8;30:16;42:8,10, formaldehyded (1) 83:17 glossed (1) 16:24;37:24;39:6; 16;49:22;58:5,7,8; 76:16 fund (1) 22:3 78:19;111:5;142:22 59:6;91:22;95:3; formation (1) 43:13 goal (1) Green (1) 97:6 110:2 fundamental (1) 64:12 30:18 hand (3) former (1) 98:4 God (1) ground (3) 49:14;50:12,16 86:25 Fundamentally (1) 21:10 17:24;19:10;56:25 handed (1) forth (6) 132:10 goes (8) groundwater (24) 26:8 18:10;19:7;28:22; funds (2) 18:9;41:2;46:19; 7:21;31:22;32:5,6; handled (2) 46:17,20;53:16 120:7;131:8 70:2;84:12;137:13; 58:2;60:19;61:23; 95:2;122:22 forty-five (1) further (1) 139:25;141:9 67:23;69:19;70:6,8, handling (1) 118:18 12:14 Good (20) 11,14;71:20,20;72:1, 115:19 forward (10) future (1) 3:3,4;4:22;5:13, 6,18;73:17;81:8; hands (3) 33:14;59:4;87:9,9; 131:8 14;23:8;27:23;29:8; 82:16;93:13;99:13; 64:18;67:12;101:7 127:2;135:16,24; 56:19;72:13;75:15; 100:12 handwritten (1) 136:2;139:10;141:9 G 76:7;91:24;108:4; groundwaters (1) 66:19 fought (1) 117:8,16,16;127:22; 92:17 happen (6) 130:10 gain (1) 131:14,15 groundwatersThe (1) 36:11;49:10; found (4) 8:19 goods (1) 92:20 122:19;127:19; 35:4;51:23,23; gap (1) 10:2 growing (1) 132:6,14 63:7 90:18 Gottlieb (91) 140:1 happened (9) four (6) gas (2) 3:10,12;5:11; Gruner (2) 36:10;68:11,21; 54:13;101:3; 38:20;68:16 56:10,19,20,24; 133:15,16 73:8;88:18;105:21; 128:16;130:20,23; gasoline (2) 57:11;58:6;59:15, Gucine (2) 106:2;120:23; 139:2 38:15,19 23;60:6,18;62:18; 133:1;136:14 141:13 four-billion (1) gave (5) 63:2,9,13,17;64:6, guess (8) happening (3) 132:3 68:12;81:18,19; 10,16,25;65:2,5,14, 5:4,20;20:24; 104:20;129:24; fours (1) 82:17;88:21 18;67:1,4;68:10; 37:23;64:10;99:22; 139:20 71:11 general (24) 69:13;70:8,10,13,20, 101:13;141:5 happens (7) fragile (1) 13:14;24:3;32:10; 23,25;71:7,17,24; guidelines (1) 104:18;121:22; 86:14 37:22;41:18;45:24; 72:3,10,13;73:13,21; 28:21 127:14;133:24; franchise (1) 53:6;57:20;60:1,2; 74:3,8,10,14,18; guise (1) 139:9,21;140:14 91:17 61:13;62:12,13; 75:11,22;76:7; 9:5 Happy (6) frankly (9) 67:17,19;69:1;70:7, 77:14;81:13,15; gulp (1) 40:20;56:18; 6:17;7:4;21:2; 8;71:12;91:25; 85:6;87:10,10; 36:1 107:21;117:7,10; 55:16;95:12;112:22; 92:13;103:3,8; 88:21;90:4;96:11, gun (4) 118:24 124:25;125:5; 109:13 12;97:18;98:3,21,25; 33:9;35:19,20,21 hard (3) 141:16 generalities (1) 99:2,6,9,19;100:1,9; 21:6;89:15;90:6 fraudulent (10) 67:10 101:21;102:19; H harm (5) 111:12;114:2; generalized (1) 103:18,21,23,25; 18:8;34:14;46:1; 127:24;128:11,17; 100:11 104:5,10;105:1,5,11, Hacker (56) 76:14;92:19 131:23;133:8,19; generally (2) 19;107:1,3,5,11,14; 3:14;108:4,5,9,15; harmed (1) 135:20;136:15 79:17;113:18 110:9;142:16 109:21;110:9,15,23; 30:18 fraudulently (2) General's (1) Gottlieb's (3) 111:1,4,6,9,22; harmful (1) 119:17;137:14 9:25 88:11;108:17; 112:17;113:1,4,7,11; 86:20 fraudulent-transfer (1) George (1) 112:15 117:23,25;118:4,12, harms (2)

Min-U-Script® eScribers, LLC | (973) 406-2250 (10) focusses - harms [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

34:18;51:3 24:1,20,23;31:9, 131:2,12,14,17; identical (1) 27:1 Harvard (2) 10;58:4,6,7,24; 132:10,25;133:15; 133:3 incremental (1) 48:21;50:17 93:19;94:6,19,20; 134:7;135:7,19; identified (3) 17:3 Hass (1) 97:6,7 136:13,17;137:2; 84:24;94:2;100:24 incrementally (1) 29:1 hey (2) 138:4,6;139:1,16,17; Ileto (1) 7:18 Hawaii (1) 79:5;105:15 140:10;141:8,18; 33:8 incumbent (1) 49:21 high (3) 142:2,9,16,21,23; ill-defined (1) 67:22 Hay (5) 5:2,23;63:7 143:2 18:14 incurred (1) 26:24;29:22; highlighted (1) Honor's (3) Illinois (2) 137:17 52:18;53:15,16 70:5 49:8;51:23;128:5 49:22;78:1 indeed (3) haystack (2) highly (2) hook (3) imagine (1) 23:12;42:6;49:25 22:3,3 48:7,8 124:15,21;140:5 90:22 indemnification (4) hazardous (1) Highway (1) Hooksett (1) imagining (1) 119:25;120:1; 77:4 38:17 20:4 138:1 124:23;130:18 hazards (1) himself (1) hoops (1) immediately (2) indemnifications (1) 114:4 58:20 125:13 64:11;141:10 123:12 Hazen (1) hint (1) hop (1) impact (5) indemnify (2) 12:3 37:3 119:10 37:12;124:24; 119:21;121:22 head (1) historic (3) hope (2) 129:2,14;130:24 indemnity (1) 86:25 58:21;109:6,15 76:10;78:24 impenetrable (1) 129:1 headaches (1) Historical (14) Hopefully (2) 10:25 independence (1) 65:13 4:12;10:7,17;11:8, 105:6,7 imperative (1) 78:19 Health (5) 21;22:17;25:6; Horizon (1) 23:5 independent (2) 16:4;61:20;87:1,3; 54:16;56:20;110:20; 90:8 implemented (1) 59:20;132:1 99:12 131:20,23,25;134:15 Hornbook (1) 62:8 indicate (2) hear (3) historically (2) 25:25 implementing (1) 31:8;124:7 107:23;111:11; 36:5;141:2 hornet's (1) 89:21 indicated (1) 117:4 history (5) 51:21 implicit (1) 19:2 heard (6) 8:25;23:4;56:6; horry (1) 54:11 indication (1) 33:1;103:21; 58:21;60:1 28:5 Implicitly (1) 29:10 112:5,10;123:20; Hit (3) Hospital (1) 81:5 Indiscernible (1) 135:5 5:2,23;105:19 52:19 impliedly (3) 115:25 hearing (4) hold (4) hour (1) 109:15,24;112:19 indiscriminately (1) 45:6;73:11;77:1; 58:23;88:17; 4:6 imply (1) 11:3 116:12 108:19;123:1 house (2) 123:8 individual (18) heart (1) holding (4) 11:24;73:8 importance (2) 41:16,19;42:24; 120:3 11:20;21:15;40:6; Howe (1) 26:13;29:18 70:12,18,25;71:2; heavily (1) 53:18 3:11 important (9) 72:8,10;82:4,8,11, 52:7 Honor (116) humbly (1) 14:9;27:23;53:1; 12,17;83:12;84:2,5,8 heck (2) 3:4,25;4:2,6;5:6, 95:17 60:25;69:15;85:1; individually (1) 30:11,13 13,16;11:9;12:12; hundreds (3) 101:4;105:25,25 73:19 held (6) 13:17;14:9;19:1; 62:24;65:25; imposed (1) individuals (2) 11:8;23:20;24:5; 23:11,12,20;24:10, 100:24 139:2 42:4;43:13 25:11;87:5;132:22 20;25:18,23;26:11, hurt (2) imposes (1) inefficient (1) help (3) 17,25;27:3;28:7,11, 98:9;105:16 70:17 51:8 67:2;87:10;108:10 15;29:3,9;30:2,13; hypothetical (1) improper (2) inevitably (1) helpful (2) 31:12,22;32:23;33:4, 13:17 54:9;133:21 35:3 4:5;40:18 4,25;36:13;38:1,3, hypothetically (1) inappropriate (2) information (29) helps (2) 13;39:11,20;40:22, 55:14 23:21;28:16 62:11;63:3,23; 29:17;121:7 25;45:4,24;46:6,10; Inc (2) 64:17;66:6,9,22; hence (1) 48:23;49:15;52:14, I 3:15;108:6 67:12;84:20;85:14; 68:17 16;56:7,10,19;69:13; include (4) 87:11;88:9,22,23; Henderson (2) 71:25;72:13;75:15; ice (1) 60:19,20,20; 89:5,11,22;91:18,20; 48:11;50:24 76:6;86:22;88:1; 98:14 106:16 92:1;95:10,21; Henderson's (2) 91:2;92:3;95:11; Idaho (1) including (10) 112:23;113:1; 50:18;51:4 96:1;99:19;105:12; 5:17 14:14;33:14;41:3; 115:18;117:10; Henes (1) 106:3,24;107:1; idea (5) 42:18;49:6;50:9,23; 118:7,10,14 45:24 108:4;109:22;110:6; 29:8;41:12;52:5; 53:8;55:9;139:6 infringement (1) H-E-N-E-S (1) 111:6;112:17; 91:24;112:20 inconsistency (1) 10:21 45:25 113:16;115:24; ideal (1) 101:18 Initially (2) Here's (2) 116:4,15,18;117:8, 139:22 Incorporated (2) 68:12;78:15 25:7;34:8 25;118:4,25;119:16; ideally (1) 3:13,14 injured (6) Hess (15) 127:23;129:5,19; 82:15 incorrect (1) 65:11;67:8;85:15;

Min-U-Script® eScribers, LLC | (973) 406-2250 (11) Harvard - injured [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

98:15;99:18,24 16:24;71:10;72:4; 86:22;141:16 6:16;7:23;14:9,16, 58:18;75:15,16,20, injuries (8) 74:3,6,6,11,12,25; involving (5) 20;18:15;19:5;20:7; 25;76:11,13;77:18, 29:24;83:13; 78:9;80:25;81:4,7; 11:23;65:25; 26:18;29:20;34:22; 23;78:9,17,24;79:20; 85:19;100:10; 82:2,3;83:11;92:20 66:10;134:1,15 35:4,12;43:23;44:3; 80:14,21;82:10,22, 101:12,13;102:3; interesting (2) IRA (2) 45:6,15;48:1;57:17; 25;83:7,24;84:4; 105:12 97:24;111:24 56:10,20 60:25;62:23;65:7; 85:6,17,20,22;86:6, injury (45) interestingly (1) irrelevant (1) 68:2;76:5;78:24; 8,21;88:16;89:14; 41:14,17,17; 79:14 121:19 81:3,19,19,21;87:12; 90:17;91:2,15;92:9, 43:17;61:11,11,12, interests (5) Island (11) 91:9;116:13 12;93:1;94:8,11; 13,18;62:1,3,14,21; 19:8;28:1;51:16; 33:9;34:19,20,22, judge-made (2) 95:25;96:10,12,16; 63:21;65:10;67:21; 72:23;73:10 24;41:5,7,7;45:7,18; 29:24,25 98:6;101:17;104:6; 69:10;71:1;85:22, interfere (1) 95:3 judgements (1) 106:5,7,9,14;107:12; 23;86:1,2,4,20; 17:14 issue (33) 134:21 111:24;113:16,25; 90:20;93:15;97:25; interference (5) 19:17;21:4;23:21, judges (4) 114:13;115:17,22; 98:3,16,20;99:11,13, 10:20;24:8;44:13, 25;32:14;33:4,5,11; 79:4;94:14,23; 119:6 16,20;100:8,11,16; 16,20 36:25;37:7;41:4; 95:3 Kanner's (1) 101:6,15,16;102:8,9; interferes (2) 45:9;46:10;47:16; judgment (32) 58:19 105:8,17;106:18 18:4;39:23 54:3,3,7;57:18;61:3; 22:5;33:14,16; Kansas (1) injury-in-fact (1) interfering (1) 64:21;80:17;84:16; 37:9;38:16;39:7,12, 49:21 63:4 12:3 92:10;94:5;96:14, 12;40:12;42:9,11; Kat (1) input (1) interim (3) 15;118:5;122:1; 64:11;84:15;95:22; 108:4 79:1 135:17,18;136:3 128:10,24;130:9; 113:3,6,9;124:22; KATHERINE (1) insisted (1) interlocutory (3) 134:18,20 132:17;134:13,19, 108:4 51:5 55:8;56:3;112:5 issued (1) 20;135:2,4,19,21,22; keep (5) instance (7) internal (1) 100:21 136:2;139:23,24; 3:16;88:25; 28:14;30:15; 141:11 issues (26) 140:20,23 108:15;118:22; 31:18;71:24;72:17; internally (2) 4:23;21:21;60:13, judicial (11) 120:22 73:14;102:11 137:11,13 22;79:20;86:23; 10:24;32:11,19; keeping (1) instances (5) interpret (1) 108:12,18;118:25; 37:14;53:15;56:6; 11:24 31:15;62:11; 103:18 119:25;120:1,10,14; 64:1;68:5;96:22; keeps (1) 66:11;67:10;69:22 interpretation (2) 123:6;125:4;126:11, 122:24;128:7 53:7 instead (2) 8:10,12 19;128:8;129:1,6; judicially (1) Keeton (1) 12:14;18:4 interrupt (1) 130:15,17;135:11; 7:1 10:23 Institute (1) 48:1 138:2;141:18,23 judiciary (1) key (3) 50:22 interstate (1) itshould (1) 7:4 33:20;34:8;38:21 Institute] (1) 77:5 50:9 July (2) KG (1) 50:6 into (25) 121:3;131:25 133:16 instructions (1) 5:2;6:21;12:9,24; J jumping (1) kind (3) 96:4 28:2;42:13,22;45:2; 37:4 21:19;34:13;41:17 instrumentality (4) 51:20;61:8;64:4,8; James (2) jungle (1) kinds (2) 10:13;20:1;21:14; 67:18;87:16;96:20; 48:11;50:24 10:25 34:17;135:18 69:15 101:7;112:1;116:14; Jersey (15) jurisdictions (4) King (1) insufficiency (1) 118:17;119:20; 38:5,7;64:25; 5:18;8:5;48:13; 78:21 104:21 120:10;135:11,13; 79:15,23;80:8,18; 133:6 knew (6) intangible (2) 137:12,22 81:19,20;87:12; jurisdictions' (1) 34:12,16;77:4; 19:22;37:21 introduce (1) 90:3;91:22;133:2,7; 5:18 90:9,21;137:19 intelligently (1) 80:15 135:6 jurisprudential (2) knowledge (2) 69:9 invasion (3) job (4) 96:15,24 21:6;38:21 intelligible (5) 17:7;19:7;102:9 28:13;71:5;76:7; jury (1) Krass (35) 67:6;69:2;89:25; investigate (1) 82:13 30:4 3:8;4:18;115:24, 91:3;92:4 88:17 join (1) jus (7) 24;116:2,6,11,17,20; intend (1) investigation (2) 108:16 80:22,23,24;81:6, 117:22;131:14,16, 84:25 66:1;87:19 joined (1) 17,17;82:1 16,19;133:6,15; intended (2) invite (1) 108:16 Justice (2) 134:4,10,18,25; 34:13,17 103:7 joint (2) 11:13;13:13 136:6,8,13;137:1,10, intent (5) involve (2) 69:18;128:3 Justinian (1) 24;138:4,6,9,16,23, 40:9;124:7;137:4, 40:1;87:4 jointly (1) 79:8 25;139:5,13,18 6,14 involved (7) 111:15 Krass' (1) intentional (1) 10:11;104:1; journal (3) K 141:5 137:4 111:13;119:22; 24:24;50:4;51:1 Kugler (1) interchangeable (1) 124:19;125:21; Jr (1) Kanner (65) 87:12 23:18 128:17 48:11 3:8;4:13,16;24:25; interest (17) involves (2) Judge (32) 25:3,7,23;26:3;

Min-U-Script® eScribers, LLC | (973) 406-2250 (12) injuries - Kugler [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

26:1,2,14,23;27:23, legislatively (1) 14:17;84:16;103:4 34:8,19;35:18;59:7; L 23;28:15;29:19,22, 60:11 limited (10) 65:20;66:3;69:8; 23,25;32:8;33:20; legislature (33) 10:20;12:16;13:2; 76:5;81:6;85:7;88:5; lack (3) 35:16;36:1,2;37:14; 7:3,5,8,19,20;9:24, 29:11;35:14;44:1; 90:5;92:4;129:22 23:5;69:19;73:7 39:18;45:23;46:15; 24;17:24;18:7; 60:9;138:3;139:5; looked (7) lacking (1) 47:20;48:10,11,21; 22:13,19;26:8,22; 140:12 27:22;35:12;36:4; 66:18 49:9,10,13;50:6,17, 29:14;30:1;32:8,17; limiting (1) 46:23;47:2;57:18; Lake (13) 22,24,25;51:13,16; 53:10;55:10;72:5; 51:2 115:17 6:21;7:9,10;8:16; 52:5,6,21,21;53:15; 77:22;78:3,11;79:2, line (3) looking (4) 12:4;27:9,15,18,22, 54:1,9,12;55:7,14; 10,23;80:2;84:19; 52:8;106:11; 37:17;48:24;92:2; 24;28:2;32:2;53:12 58:3;59:23;60:4; 87:20;89:17,17; 136:18 110:16 lakebed (1) 61:1;70:3;71:13,18; 95:16;103:5 lines (2) looks (1) 27:19 72:24,25;76:11,13, legitimate (2) 78:16;110:19 58:14 lakes (1) 15,18;79:18;93:4,10; 56:5;121:6 liquidated (1) lose (3) 80:9 94:13,16,22,24; length (4) 132:17 30:5;121:14,20 land (27) 102:4;113:18; 20:7;62:4;75:9; liquor (1) loss (3) 6:9;10:12,12,13; 119:24;128:16 103:7 11:24 43:25;44:1;83:24 15:2,5,7;16:15;18:5; laws (2) less (1) list (10) losses (3) 19:9;36:7,9,12,21; 74:20;80:2 126:22 6:11;29:2;40:18; 59:2;97:1;119:22 39:2,2,20,24;40:1,3; lawsuit (1) letter (1) 63:10,15;107:10,11; loss-of-use (2) 69:23;70:12;73:12; 84:22 106:16 137:2;142:18,19 83:10,12 74:21;79:5;81:1,10 lawyers (2) letting (1) lists (2) lost (2) landfill (1) 50:7;126:16 7:18 113:20;137:5 15:19;40:8 88:13 lead (10) level (5) literally (1) lot (23) landfills (1) 16:12;33:10; 12:4;65:13;99:16; 101:10 8:19;16:10;28:7; 63:11 34:24;38:5,6,8;39:6; 106:22;137:25 litigate (2) 31:12,14;33:20; landlords (1) 51:16;105:2;116:21 levels (3) 125:19;135:20 42:14,16;44:18; 38:9 leap (1) 63:7;102:3;105:22 litigated (4) 55:17;56:13;84:12, landowner (5) 59:4 liabilities (21) 47:17;52:7; 24;86:22,23;91:11; 71:1,2;72:20;74:2; learn (3) 109:10,15,25; 122:13;128:9 94:7,9;114:4,16; 83:21 65:7;68:11;105:4 110:1,20,22,24; litigation (16) 134:14;139:6; landowners (1) learned (2) 111:1;112:19;114:4, 26:20;77:8,9,10; 141:16 70:18 58:18;95:5 15,20;117:1;130:19; 95:2;114:13;119:22; lots (7) lands (3) least (11) 131:25;132:2,7; 120:3;125:17,25; 21:25;34:15,15; 42:5;75:3,4 6:14;21:8;26:8; 137:8,20;140:3,15 127:1,8,10;128:12; 35:16,16,16;55:23 language (3) 42:2;70:5;75:5; liability (23) 134:14;138:10 Louisiana (1) 6:14;94:23;99:8 93:13;97:5;106:23; 14:15;18:14; little (8) 90:8 large (1) 128:20;142:6 36:17;38:10;46:17; 9:12;21:1;90:12; love (2) 62:22 leave (2) 50:1,7,19;51:3,6; 91:5;95:18;110:20; 50:17;78:24 larger (2) 30:11;68:13 108:20,22;109:2,8, 130:16;142:12 low (5) 63:24;73:17 leaves (1) 16,23;110:11; live (2) 65:16;67:6,8;87:2; Larkin (7) 4:7 112:13;113:2,17,18; 12:10;73:8 110:7 17:6,8;19:5,7,12; leaving (1) 126:25;141:1 livelihood (1) lower (1) 20:8;36:25 51:4 liable (7) 79:7 99:16 last (10) left (6) 13:23;14:1;40:6; LLC (1) lowering (1) 5:16;32:25;46:6; 54:3,5;65:12; 108:20;109:9;114:7; 3:13 32:2 48:9;49:3;52:17; 72:20;109:7;121:5 124:21 location (2) lump-sum (1) 62:8;105:21;109:6; leg (1) license (3) 88:14;100:11 88:8 142:1 65:12 81:13;86:8;106:11 locations (15) later (8) legal (5) light (3) 62:12,14,19,25; M 68:19;101:13; 61:8;83:4;95:12; 15:12;101:24; 63:9,15;64:6,11; 104:22;115:7; 113:23;132:19 116:3 66:1,10;67:7,7,19; mail (1) 120:13;121:25; legally (1) likely (4) 77:7;92:2 51:14 122:4;136:12 99:1 122:11;128:11; long (10) Maine (2) Latin (1) legislate (2) 139:21,23 4:25;57:13;59:16; 94:17,18 80:22 7:17,21 likewise (1) 72:4;80:2;84:17; major (1) law (94) legislated (1) 19:1 103:25;112:8; 18:23 9:11;10:8;11:1,18; 72:22 limit (4) 130:25;141:13 majority (4) 12:12,19;13:12,14; legislation (1) 21:11;75:21; longer (3) 19:25;41:2;48:12; 17:19;18:17;19:4,10, 7:22 125:8;126:18 15:18;67:3;122:8 63:10 21;20:17;22:11,12, legislative (7) limitation (2) look (20) makes (9) 15,15,16,16,23;23:6, 7:2;51:1;54:4,6; 7:7;88:16 8:13;9:18;12:1; 12:14;45:20; 15;24:24;25:1,8; 72:17;77:24;78:2 limitations (3) 23:23;28:21;29:1; 54:25;83:3;86:14;

Min-U-Script® eScribers, LLC | (973) 406-2250 (13) lack - makes [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

88:24;92:15;98:16; mass (1) 18:5,6;20:12,18; merry-go-round-like (1) 41:6 121:16 114:5 27:3;28:8,22;29:1, 104:6 money (16) making (7) massive (2) 12,13;34:2;35:18; messed (1) 39:7,10;42:18; 17:25;25:23;26:3; 62:22;137:19 36:4,20;37:22;38:5; 82:6 43:2,12;82:7,15; 96:2;105:19;135:2; material (1) 42:1,7;66:17,23,25; met (3) 120:13;121:11,13, 138:14 88:6 70:9;73:4,24;74:9; 61:4;100:15;119:1 13;124:14,15; malicious (1) materials (1) 77:21;80:5;81:14; metaphysical (1) 125:12;139:5; 124:7 51:23 82:20;83:3;88:17; 21:2 141:16 Malmquist (3) Matt (1) 89:10,25;91:1;92:4; Mexico (10) money-damages (1) 9:19;31:23;32:1 4:4 94:5,14,22;95:16; 49:21;57:19,20; 43:1 malpractice (3) matter (14) 99:15,17;100:16; 60:2;77:14;92:12, Mono (7) 53:17,22,24 3:6;19:10;22:11, 104:25;110:21; 15;93:19;94:6;103:8 8:17;27:9,15,18, manage (1) 12,22;23:14;24:14; 112:24;114:3,11; Michigan (5) 22,24;28:2 136:16 61:13;64:20;75:5; 122:7,18;125:6; 38:14,17;45:24; monster (2) manageable (1) 96:22;98:7;102:4; 129:17,21;138:1,7, 51:13;91:23 18:16;35:24 68:23 128:18 13 mid-level (1) months (2) management (2) matters (1) means (2) 40:5 62:9;84:21 68:5;136:20 98:16 22:4;97:23 might (19) Montpelier (2) managing (1) MATTHEW (1) meant (3) 5:24;7:4;13:24; 11:25;53:1 83:8 3:24 11:2;29:16;124:13 17:17;40:17;51:16; moot (2) mandate (2) Matthews (1) meantime (1) 66:15;67:5;74:20; 127:8,14 72:18;96:4 80:17 125:14 75:12;82:17;91:9; more (50) mandated (1) matured (1) meanwhile (1) 93:9;104:24;106:1; 10:25;21:1;38:15, 60:11 132:18 135:23 116:2;120:13;128:4; 19;45:1,16;57:6; manner (1) may (43) measure (1) 134:21 58:23;60:8;61:2,7; 64:20 4:25;7:10;20:2; 44:23 mill (1) 63:24;66:22;68:8, manufacture (1) 23:22;33:2;45:20; measured (1) 7:9 23;79:17,18,20; 8:1 47:14;48:23;49:16; 17:25 Miller (2) 84:13,15;86:14; manufactured (1) 51:7;54:19;63:13; measurement (1) 65:19;66:3 87:10;88:22;89:5, 10:2 68:14;69:18;78:4; 101:11 million (2) 23;90:3;91:4,6,19; manufacturer (7) 80:1;81:18;91:19; measures (1) 39:14;43:6 92:5;95:18,20;96:6, 33:15,19;34:11; 93:1,22;98:9,14,14; 39:16 Milton (2) 15;97:19;101:3,6,18; 39:1;40:6;41:6; 100:12,12;101:2,9; meat (1) 9:18;61:10 102:13,14;104:24, 109:1 102:16;105:23; 110:4 mind (5) 24;105:4;110:20; manufacturers (6) 106:5;107:18;116:4, media (1) 4:21;56:10,22; 111:11;112:12,18; 33:9;35:1,5;40:11; 6;123:6,9;128:18,18, 66:15 102:15;120:22 115:18,23;142:17 55:1;77:4 23,25;131:17; Medical (6) minimum (1) Morey (1) manufacturers' (1) 132:13,14;135:16 26:24;29:22; 95:19 7:10 51:2 maybe (10) 52:19;53:17,22,24 minute (1) morning (12) manufactures (1) 15:3;35:17;37:3; meet (9) 104:23 3:3,4;5:13,14; 38:7 74:23;81:10;83:16; 30:22;54:1;59:16; minutes (1) 33:1;56:19;75:15; manufacturing (1) 90:23;105:11,12; 61:15;63:4;71:17; 4:7 108:4;118:16; 16:14 106:16 73:2;75:6;76:19 misconduct (1) 127:22;131:14,15 many (13) McCarter (3) meets (1) 86:9 Morris (1) 5:18;10:24;52:9; 111:14;126:1; 67:6 misread (3) 49:17 62:10,19;78:11; 130:7 members (2) 25:1,19;26:4 most (16) 90:10;105:4,6; McDonald's (2) 51:15,15 misreading (1) 4:5;27:4,9;33:16; 114:20;127:16; 91:11,17 Mendez (1) 41:13 65:6;76:14;79:16; 128:9;139:20 McDougall (1) 81:20 missed (1) 87:4,5;89:24;122:3, Marceau (1) 3:7 mention (1) 142:4 11;123:21;128:19; 36:25 MCL (3) 112:5 Missouri (1) 139:21,23 MARGARET (2) 86:22;98:6;106:19 mentioned (6) 49:22 mostly (1) 127:22,23 McLaughlin (1) 66:13;78:22; misunderstand (1) 31:10 market (2) 127:23 101:17;111:24; 132:11 motion (58) 13:5;51:5 MCLs (3) 124:19;129:22 model (1) 4:10,12,15;15:11; marketed (1) 86:21;87:4;106:11 mere (3) 30:25 16:19;20:14;21:21; 34:12 McMahon (1) 114:22;115:5,8 modern (3) 26:21;33:25;34:23; marketing (1) 11:25 merged (2) 7:25;39:18;41:3 38:16;41:7,8,9;45:7; 114:5 MDL (6) 64:4,8 molded (1) 55:3;57:6,7;60:7; Maryland (3) 116:7,12,22; merger (3) 76:19 61:7,8;68:12;84:12; 31:9;94:19;97:7 117:13,16;118:13 109:10;114:23,24 moment (3) 87:8;89:23;90:1; masquerading (1) mean (59) merry-go- (1) 23:23;66:7;67:11 91:3,4,5;92:5,6; 18:14 6:23,25;8:12;10:7; 104:5 monetary (1) 99:24;101:18,19,22;

Min-U-Script® eScribers, LLC | (973) 406-2250 (14) making - motion [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

102:13;108:11,16; 108:7;111:13; needing (1) 62:16;100:22 109:4,9;110:12; 125:22 138:21 none (1) O 113:6,9,12;119:5,12, needs (8) 63:14 16;123:8;124:10; N 18:12;30:23; non-navigable (2) object (1) 125:2,3,13;128:6; 76:19;97:19;104:13; 28:2,4 115:15 129:16;131:17; name (1) 112:10;120:10; nontrustee (1) objection (1) 135:8,10,15 108:2 126:23 106:21 117:4 motions (11) named (3) negative (2) nor (1) obligation (2) 3:21;4:17;6:1,4,4; 111:17;120:8; 79:22;130:24 128:22 82:18;137:17 22:9;56:25;95:22; 124:20 negligence (5) normally (2) obligations (3) 129:7,11;136:15 naming (2) 31:2,4,7;67:24; 34:14;123:12 123:12;129:1; move (9) 110:13;111:10 70:20 Norris (1) 130:18 5:1;32:10;33:2; Napro (1) negotiating (1) 127:23 obstacle (1) 57:6;64:10;104:16; 11:12 118:23 notable (1) 45:10 122:8;138:13; narrow (4) negotiations (1) 33:16 obtain (4) 139:10 62:25;68:22; 115:19 note (4) 41:1,12;43:25; moved (3) 83:20;88:12 neighbor (4) 24:23;35:4;118:2; 96:25 9:10;36:2;68:16 narrower (1) 12:8,14;13:19; 123:5 obtained (1) movement (1) 8:11 17:16 noted (4) 42:17 80:7 National (2) neighbor's (2) 10:22;14:14;68:7; obvious (1) moving (10) 27:10;87:1 12:9;13:22 77:9 59:10 33:12;39:5;45:3; nationwide (1) neither (2) notes (1) obviously (9) 48:13;61:7;135:10, 79:16 108:24;128:22 57:12 5:3;18:3;27:3; 13,16,23;136:2 natural (15) Nemours (3) notice (4) 56:25;64:12;83:9; MRI (2) 23:16;24:4;25:11; 3:9,15;108:6 64:2;88:17; 87:21;95:11;101:21 85:7,10 30:20;82:15;86:3; Neptune (1) 100:17;115:1 occasion (1) MTBA (1) 88:4;89:18;93:3,17, 80:18 notion (2) 13:18 29:20 25;95:6,6;106:20; nest (1) 26:22;38:23 occasions (1) MTBE (22) 120:2 51:21 novel (2) 53:8 7:22;14:10;18:16; naturally (1) new (69) 95:13;102:5 occur (1) 19:6;26:17;33:17, 27:5 19:20;20:5;21:8; nuisance (76) 115:7 18;34:9,20;35:5,9, nature (10) 24:1,16;25:1,13,18, 5:19;6:3;10:4,6, occurred (5) 19;41:5,9;42:17,20; 59:1;66:4,9;94:24; 24;26:3,19;27:21; 11,14,18,19;11:12, 63:21;100:10,11; 45:7;77:9;87:11; 105:24;132:11,12, 28:21,21;29:7,8; 15,18,22;12:5,12,19; 120:16;121:3 95:2;106:10,14 21;134:5;139:19 30:15;33:16;38:5,7; 13:7,11,12,14,23; occurs (3) much (29) navigable (1) 40:5;41:9;42:8,10, 14:10,21;16:15,16; 99:14,16,21 4:20;8:11,12;23:7, 28:6 16;49:21,22;53:17; 17:2,8;18:13,24; odd (2) 11;26:2;48:4;52:3, NCLs (1) 57:19,19;58:4,7,7; 22:16,22;25:5;33:2, 56:5;91:6 13,14;55:12;56:8; 86:8 59:6;60:1;64:25; 7,13,18;34:14,25; off (10) 69:14;74:24;75:11; nearshore (2) 77:14;79:15,23;80:7, 35:3,7,23;36:8,22; 5:1;63:15;77:2; 89:22;90:12;92:15; 94:18,20 8,18;81:19,20;87:12; 38:6,9;39:4,19,23, 84:10;98:13;119:18; 96:1,9;101:11; necessarily (4) 90:3;91:22,22;92:12, 25,25;40:7,12;41:22; 122:1,7;124:20; 106:3;124:2;128:1; 29:13;82:23; 15;93:19;94:6;95:3; 42:4,24;43:11;44:5, 132:1 130:15;131:11; 127:7;128:13 97:2,4,5,9;103:8; 12,15,23,24,25;45:2; offense (2) 136:23;142:5;143:1 necessary (6) 108:6,19;109:14; 52:22;54:13,18,20; 98:8,8 multi-district (1) 7:20;15:1;21:16; 110:17;113:12; 55:2,4;58:1;61:5; offer (4) 26:20 37:12;136:20;142:1 116:12;128:16; 67:24;70:22;75:8; 16:6;112:1,2; multiple (3) necessity (1) 133:2,7;135:5; 82:21,24;83:20 115:15 21:24;64:21; 128:16 142:16 nuisance' (1) offered (1) 130:16 need (41) next (4) 11:1 118:12 Murphy (2) 5:2;25:4;37:7,15; 32:10;56:9;96:8; nuisances (1) Office (2) 3:7;11:24 54:2;63:4,23;64:9; 107:17 57:9 9:25;108:10 mush (1) 66:22;67:13,13,14; next- (1) number (15) OFFICER (5) 5:21 76:4;87:10;89:19; 12:13 38:4;42:17;57:21; 3:2,5;56:14,16; must (5) 96:15;100:7;102:2,3, next-door (1) 66:10,10;67:7;69:6; 143:3 24:8;30:21,22; 9,9;105:3;107:20,23, 12:7 81:22;88:8;93:14; often (6) 75:10;84:20 25;116:24;117:11; nine (2) 97:23,24;122:15; 24:11;37:17; MV (1) 119:13;122:13,25; 18:10;62:9 125:20;137:5 44:24;64:13;90:20; 94:17 123:2;124:18; Nobody (2) numbers (2) 108:6 Myrick (5) 125:21;127:2; 11:15;45:13 87:2;88:14 Ohio (9) 13:9;15:12;17:10, 132:13;133:24; nonadversarial (1) numerous (1) 30:16,18;31:6; 13;55:18 137:22;138:25; 51:12 86:23 58:24;91:23;97:8; myself (3) 139:9;140:2;141:18 noncommunity (2) 135:5,6,11

Min-U-Script® eScribers, LLC | (973) 406-2250 (15) motions - Ohio [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020 oil (3) opioids (8) outlier (1) 26:12;33:22;35:19 86:11;87:2;101:10 68:16;94:18,20 23:20;28:15; 58:8 paid (4) party (7) Oklahoma (2) 33:21;34:1,10;39:13, outline (1) 120:19;121:11,23; 17:15;124:15; 39:8,13 15;41:8 59:25 140:13 126:3;130:22; old (8) opportunity (3) outmaneuvers (1) paint (8) 133:12;134:2,6 17:18;28:5;36:8,8, 37:1,24;88:5 45:9 16:12;33:10; pass (3) 15;37:18;76:8;80:5 opposed (6) outmoded (1) 34:24;38:6,6,9;39:7; 80:1,2;128:12 one (68) 7:18;12:10;22:15; 38:23 121:4 passed (1) 3:18;10:5,11; 29:14;83:16;116:8 outset (4) papers (3) 32:17 11:19;14:15;19:22; opposing (1) 68:1,22;75:6; 40:15;60:24;75:9 passenger (1) 21:12;22:19;27:17; 52:1 136:22 paragraph (11) 115:4 29:22;33:16;34:19; opposite (3) outside (1) 25:6;61:20;62:5,5, passing (1) 36:1;38:8;39:15,21; 48:18;124:11; 124:15 6,6;69:3;109:4,22; 7:24 42:2,3,6;45:14,22; 132:9 over (21) 110:17;114:1 past (4) 54:14;60:13;63:22; opposition (1) 14:16;22:3;30:5; paragraphs (4) 28:5;94:15;118:9; 65:8;68:11;77:17, 128:4 46:3;56:24,25;62:7, 69:3,6,8;115:9 129:16 22;80:23;82:6; oral (1) 8;68:4;69:19;73:12; parallel (1) patently (1) 84:24,25;87:9; 3:18 79:1;80:5;91:21; 134:1 38:5 92:21;94:11;97:4, order (6) 92:15;95:19;98:11; parameters (1) patriae (20) 23;103:17;105:3,7, 4:9;39:18;41:15; 122:10;135:22; 90:20 42:11,13,21;45:1, 16,16;106:5,15; 67:22;91:15;129:15 137:20;141:18 paraphrasing (1) 11;57:5,15;59:13,13, 107:1,6,19,21; ordered (3) Overall (1) 99:10 21;60:16;76:2; 109:16;114:14; 68:8;85:13;87:20 110:13 Pardon (2) 83:18;92:19,21,24; 115:2;119:4;122:8; ordinary (3) overapplied (1) 103:23;118:8 93:7,21;94:19;95:9 123:5;126:22;127:9, 46:21;52:11;74:20 17:20 parens (20) Pawa (81) 16,21;128:21; original (1) overcome (1) 42:11,13,21;45:1, 3:8,24;4:4,4,10,12, 129:20;135:13; 80:6 74:25 10;57:5,15;59:12,13, 15;5:4;23:10,11; 137:4,13;140:19,20, originally (2) overlap (4) 21;60:16;76:2; 24:19;25:16,18,22; 23;142:6,17 3:18;115:7 44:18,23;57:1; 83:18;92:19,20,23; 26:6,10;28:11,14,25; ones (8) Ostrowski (1) 101:21 93:6,21;94:19;95:8 29:3,9,15,17;30:13, 56:5;61:6;78:15; 113:20 overlapping (2) parent (2) 25;31:4,6,21;32:16, 93:18;100:16;105:9, others (1) 69:18;72:23 26:1;109:6 23;33:4,25;34:4; 15;125:1 36:19 overrule (1) park (1) 35:9,11;36:1,6,20; ongoing (2) Otherwise (3) 17:14 69:23 37:5,11,19;38:1,3; 104:25;106:2 64:21;81:23;126:2 overt (1) Parker (2) 39:11;40:16,20,22, only (30) ought (3) 14:5 9:18;61:10 24;41:23,25;42:6,8; 16:6;18:15;19:17; 82:15;92:2;95:18 overwhelming (1) Parks (1) 43:3,5,8,15,21,23; 22:2;25:20;28:6; ours (1) 48:12 38:17 44:9,12,15,22;45:4; 30:15;42:4;52:20; 60:8 own (11) part (18) 46:10;47:10,13,17, 63:9;65:20;72:14, out (55) 13:16,17;25:9; 23:3;26:20;29:17; 24;48:1,5,7,19,21; 14;75:25;80:14; 10:17;17:3,11; 31:11;66:1;72:4,19; 30:21;32:6;51:19; 49:2,17;51:22;52:1, 87:8;92:16;100:24; 18:6,16;19:9;20:8; 88:6;99:11;104:3; 60:10;62:19;63:14; 4,14;77:9;83:9 105:7;109:7;111:16; 22:15,17;24:10; 120:23 65:23;74:18;85:18; pay (5) 113:16;120:14; 25:2;27:6;30:12; owner (3) 94:24;115:5,13; 27:4;84:25;85:10; 127:24;128:15; 31:12;35:16;36:24; 71:25;75:2;93:14 122:8,9;141:17 132:7;140:3 131:3,7;138:16; 39:21;40:4;42:19; owners (1) particles (1) payment (3) 140:18,22 43:12;48:25;49:2,5; 91:17 37:2 132:16;133:9; onto (5) 51:14;52:25;53:12; owner's (1) particular (5) 140:6 19:20;36:15,15; 54:15;58:16;61:19; 45:21 9:19;49:1;88:13; PCB (1) 39:1;82:5 75:12;80:17;85:9; ownership (5) 128:6,21 77:8 open (4) 90:6,14,21;94:12; 16:14;45:18; particulate (2) PCBs (1) 9:13;20:19,22; 95:19;100:19,24; 69:25;93:3,11 19:17,23 41:8 23:21 101:5,15;102:20,22; owns (2) particulates (1) PCB's (2) operation (2) 104:7,22,24;105:7; 45:13,22 20:25 33:21;34:9 7:9;11:23 107:18;114:7,17; oxymoron (1) parties (14) PCVs (1) opinion (6) 117:6,14,15,18; 96:23 66:6;71:9;104:19; 35:18 12:15;31:13; 130:10 122:4;123:19; Peck (2) 43:25;49:24;68:2; outcome (1) P 124:19;125:21; 6:16;13:10 104:2 139:24 128:20;129:2,21; pelicans (1) opinions (1) outcomes (1) page (7) 130:23;134:1; 90:10 34:20 127:8 15:2,3;25:8,9; 135:10;142:8 pending (4) opioid (3) outlet (1) 54:5;58:11;106:15 parts (6) 108:12;114:14; 14:11;15:16;54:23 70:17 pages (3) 57:1;61:22;68:3; 126:21;129:7

Min-U-Script® eScribers, LLC | (973) 406-2250 (16) oil - pending [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

Pennsylvania (3) 111:1;116:7,7; 111:20 139:5 125:1,15 49:21;133:3,7 132:2;134:14; plead (4) portion (1) prejudicial (3) penny (1) 137:19 44:20;46:14;69:9; 128:21 125:17;128:20; 140:3 PFAS-related (1) 102:4 position (4) 135:25 people (11) 131:25 pleading (6) 48:2;66:8;76:1; preliminary (1) 10:1;11:2;29:23; ph (3) 61:4;64:13,22; 96:2 4:23 43:12;56:13;79:5; 20:6;59:25;133:1 65:15,20;110:7 positions (1) premises (2) 80:9,10;81:9;83:10; Pharma (2) pleadings (3) 66:5 11:25;14:6 100:1 14:11,25 68:23;117:15,18 positive (1) prepare (1) people's (2) Philip (1) Please (3) 85:9 87:25 36:15;70:12 49:17 3:5;56:17;63:16 possession (14) prerogatives (1) per (7) phrase (1) plenty (2) 15:13;19:8,11; 79:5 60:14;61:22; 35:17 107:16;124:3 45:5,9,13;46:3; presented (1) 86:11;87:2;97:15; phrasing (1) Pneumatic (1) 69:17,21,25;71:9; 54:3 101:10;102:8 47:25 50:13 72:7;74:22;81:25 presents (1) percent (4) physical (1) pockets (2) possibly (2) 61:24 122:12,16,25; 37:12 111:17;112:12 62:24;100:7 preserve (1) 126:22 pick (1) point (62) potential (13) 82:19 perception (1) 25:2 14:9,25;19:19; 45:10;112:5; press (1) 27:7 picked (1) 22:2;24:1;25:20; 123:5;125:23;126:8, 100:21 perceptions (1) 98:11 26:7;28:16;29:18; 15;134:7;136:2,3; prestige (2) 76:22 picture (1) 31:16;32:22;36:4; 139:11;140:10,15; 51:10,11 perfect (2) 121:4 37:14;39:20;40:4; 141:12 presumably (1) 45:20;79:13 pie (1) 45:23;47:17;57:22; potentially (2) 112:24 performance (3) 11:4 59:24;60:8;64:18; 122:7;128:23 pretty (7) 119:18;120:19; piece (4) 68:25;69:13;70:12; Potter (1) 4:20;57:18;75:11; 140:13 69:24;81:10; 72:13;77:12,20; 50:12 91:24;101:11; perhaps (2) 136:24;138:3 79:3;83:9;84:8; poured (2) 108:13;114:6 10:25;115:13 pierce (1) 85:18,23;86:10,15; 12:8,24 prevent (1) period (1) 109:5 88:2,3,12;90:24; power (2) 140:16 122:8 piercing (1) 92:8;93:23;94:23; 51:10;54:1 previously (1) peripheral (1) 108:21 99:19,20,25;100:9, PPT (2) 78:21 102:14 piers (2) 19;102:18,20;103:3; 63:19;100:25 primarily (1) Perkins (1) 6:21;53:13 106:24;114:8,19; practice (2) 81:25 12:3 place (6) 127:15;129:3; 64:23;125:14 primary (3) permanent (2) 62:7;64:22;67:5; 131:10;132:23,25; pragmatic (1) 3:22;53:11;120:22 6:19;65:13 71:8;100:11;102:15 136:14;137:25; 89:25 principle (5) permanently (2) places (2) 138:20;139:19; precarious (1) 13:15;29:23;37:6; 53:20;76:16 63:8;66:13 141:21 86:14 61:9;100:4 permission (2) plain (2) pointed (10) precedence (1) principles (1) 49:15;51:24 65:21;66:3 18:6,15;19:9;20:8; 27:5 13:25 permitted (2) plaintiff (15) 24:10;27:5;29:12; precedent (1) printed (1) 9:5;133:7 6:10;21:14;37:8; 36:24;102:22;104:6 22:21 54:24 permutations (1) 41:11;46:14;65:11; pointing (2) precise (1) prior (1) 132:13 101:23;104:13; 17:3;58:16 89:14 137:18 person (12) 111:20;116:22; points (8) precisely (2) prioritize (2) 12:4;13:15;18:8; 129:2;130:22,24; 5:2,23;10:17; 11:8;66:7 87:18,21 53:19;71:6;73:6; 133:17;136:6 18:24;27:3;61:19; precision (1) private (41) 74:1,2;82:3;115:19, plaintiffs (20) 75:7;105:20 67:15 6:3;10:3,6,10; 22;132:15 9:3;26:19;43:24, policy (2) preclude (1) 11:11;13:11,12,14; personal (3) 25;55:25;112:2; 83:4,7 138:17 17:2,14;18:13,24; 43:17;65:10;83:13 116:14;117:9,12,16; politics (1) predecessor (1) 22:22;39:24;40:7, perspective (1) 118:15;123:14; 51:10 109:10 12;41:23;42:4,15,17; 140:21 124:14,16,18; pollute (2) predict (1) 43:11,22;44:5,8,15, persuasive (3) 131:24;135:16,23; 86:8;106:12 55:13 23,25;45:18;52:22; 24:11,16;127:5 136:1;139:6 pollution (7) preemption (1) 69:20;71:9;72:20; pervasive (1) plaintiffs' (1) 27:20,21;30:17; 32:7 74:19,23;75:2,8; 6:11 116:21 79:20;90:6,12;91:21 preference (1) 80:23,25;82:24; PFAS (18) plaintiff's (5) Pond (1) 51:4 83:20;103:2 8:1;36:14;42:15; 15:5;19:8;39:24; 53:8 prejudice (3) privatum (2) 61:21;63:22;77:9; 116:24;128:13 Pont (1) 101:23;124:9; 80:23;81:17 84:18;85:24;86:11; plan (5) 3:9 130:24 pro (1) 100:12;109:1,23; 62:5,7;63:14;64:2; pool (1) prejudiced (2) 91:9

Min-U-Script® eScribers, LLC | (973) 406-2250 (17) Pennsylvania - pro [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020 probably (9) property (46) 22;12:2,24;14:10,21; put (11) rare (2) 11:16;26:1;36:19; 10:20;12:2,5,22, 16:16;17:2;18:13, 3:19;40:2;53:12; 32:20;55:15 45:1;67:8;68:21; 25;13:7,16,18,21,24; 24;22:16,21,22; 62:12;87:14;100:17; rather (4) 92:1;96:1;117:5 15:14,14;17:7,15; 23:12,17;25:3,5,8, 110:4;115:1;122:1, 64:18;92:21;93:1; problem (5) 22:16;30:20;36:16; 10,12;26:9,13,15; 6;123:1 136:21 68:22;84:23; 39:18;43:8,18;44:2, 27:6,7,9,14,16,21; puts (1) Raymond-Flood (16) 85:10;88:15;131:4 17,19;45:21,22;59:2; 28:4;29:18;30:5,21; 95:19 3:12;125:22; problems (1) 69:20,24;71:10,10, 31:1,8,24;32:6;33:2, 127:22,23;128:3; 90:9 25;73:8;74:15,19,23; 7,13,18;34:14;35:23; Q 129:5,7,11,19;130:1, procedural (1) 75:2;77:25;80:23; 36:16,22;38:6,9; 11,14;131:2,5,12; 4:23 81:9,12,14;82:5,11; 39:4,19,23,24,25; quasi-interest (1) 142:2 proceed (12) 83:16;102:10;103:2 40:12;41:1,12,18,22, 93:21 Re (5) 3:23;4:1;56:4; proposals (1) 23;43:19;44:5,7,12, quasi-sovereign' (1) 24:12;26:17; 59:15;70:15;72:16; 51:17 13,20,24;45:2,16; 92:19 29:20;33:18;106:14 75:17;97:11,12,23; propose (1) 46:3;52:20,22;53:2; questionnaire (1) reaching (1) 132:22;133:8 4:2 54:6,17,18,20;55:1, 20:25 24:15 proceeding (2) proposition (2) 4;57:4,14;58:10,12; quick (3) read (20) 20:20;134:1 27:13;78:1 59:1,2,20;60:9,10, 56:12;107:3;123:5 5:1;10:9;14:3; Proceedings (2) pro-se (1) 15;71:11;75:8,22; quickly (2) 15:11;16:2,6,19,23; 3:1;143:4 66:19 76:1,5,20,21,22; 68:7;142:24 21:6;29:17;31:7; process (6) Prosser (2) 78:5,9,10,18,20,25; quite (9) 58:15,19;66:20; 86:22;87:22; 10:23,24 79:2,3,11,14,16; 15:3;44:22;50:19; 75:10;92:12;103:21, 94:16;95:5;101:15; protect (9) 80:3,4,6,11,16,21; 58:19;112:9;126:16; 22,24;107:7 104:25 45:21;83:18,19; 81:2,5,8,9,16,21; 128:8;140:15,22 reading (8) product (11) 124:14;134:25; 82:21;83:19;92:17, quote (16) 5:17;6:2;10:4; 34:12,13,16;35:2; 135:1;136:1,8; 18;93:6,20;94:11,21; 11:14,17;13:13; 14:4,19;29:9;46:22; 38:10;49:25;50:7, 139:10 96:3,13,14;97:11,12, 19:7;29:17,20;31:7; 94:12 19;54:25;77:4;87:16 protecting (1) 15;100:17;102:2,23; 35:23;37:12;45:8; ready (3) production (1) 89:18 103:4,11;110:1 46:19;53:3;54:1,10; 5:20;117:21; 141:10 Protection (7) public/private (1) 68:7;110:16 135:18 products (7) 58:2;67:23;70:14; 22:16 quoted (3) real (2) 14:15;18:14; 72:18;80:1,12;112:2 publicly (1) 10:24;109:18,19 10:20;15:13 46:16;51:3;110:18; protections (1) 137:11 quote-unquote (1) reality (3) 114:5;116:9 72:19 publicum (5) 65:15 22:10;128:25; Professor (2) protracted (1) 80:22,24;81:6,17; quoting (3) 130:1 10:23;50:18 112:8 82:1 27:8;29:22;51:13 realize (2) professors (1) prove (8) pudding (1) 51:20;81:2 50:24 24:8;29:2;46:14; 13:8 R really (58) program (6) 85:15;86:18,20; pull (1) 8:12;9:20;10:5; 84:21,25;87:20; 99:16;100:8 81:1 race (2) 14:20;18:14,16;19:2, 88:7;89:20,21 provide (5) Purdue (3) 134:23;136:5 24;21:20;22:3;26:8; progressive (2) 54:21;57:16; 14:11,24;16:8 race-to-the- (1) 27:3;28:12,20;29:4, 79:16,22 86:21;93:1;118:9 Purdue's (1) 140:10 6;33:5,11;34:6; project (1) provided (8) 55:3 race-to-the-bank (1) 37:17,17,19,24;38:2, 31:13 7:7;53:6;54:24; purely (1) 140:16 21;42:1;43:22; promise (1) 60:12;88:23;103:3; 87:3 racing (1) 48:15;50:19;60:7; 142:24 117:9,9 purity (2) 19:20 64:21;77:20,21; promote (1) provides (2) 27:17,25 radical (1) 78:6;79:12;81:7,23, 78:4 11:18;25:9 purported (1) 54:10 25;82:1;83:11;89:8; promulgates (1) provision (3) 133:9 railroad (3) 91:17;112:14;114:7; 50:22 53:4;102:24; purpose (7) 53:12;55:21;81:1 115:13;117:21; pronouncing (1) 133:22 9:20;13:11,25; Railway (13) 121:1,19;125:7; 8:17 proximate (1) 16:6;76:20;80:3; 6:14;9:19;23:23; 127:2;128:1;129:19; proof (2) 34:7 132:9 24:22;26:12;27:2; 130:3;131:9;132:6; 13:8;16:5 prudence (1) purposes (14) 29:10;55:20;76:6, 136:11;141:2,3 proper (4) 96:23 17:8;27:6,15,24; 17;79:12;80:19;96:5 rear-ends (1) 39:19;46:5;53:5; prudent (2) 29:23;68:1,5;72:24; raised (4) 85:6 103:2 85:7;93:25 87:8,19;99:12; 47:12;75:21;76:4; reason (13) properly (3) public (161) 102:6;122:1,24 140:10 20:19;30:10; 15:11;116:25; 5:19;6:3,3,6,8,8, purpresture (1) raising (1) 52:20;54:14;78:17; 117:2 11,18;7:6,18;8:7;9:1, 12:1 84:2 92:3;97:1;106:19; properties (3) 5,8,15,21,25;10:3,6, pursue (3) range (1) 111:16,23;112:10, 35:13;36:15,16 10,21;11:11,15,18, 55:11;77:13;92:16 93:2 11;120:9

Min-U-Script® eScribers, LLC | (973) 406-2250 (18) probably - reason [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020 reasonable (9) referenced (1) 16:7;55:3;81:5 requests (2) 139:14;141:5,17 4:19;13:16,17; 142:11 relief (14) 127:9;141:10 responding (1) 18:2;50:8;85:11; referred (2) 59:12;65:22;66:5; require (5) 113:15 106:22;112:1; 64:3;108:6 96:25;97:22;121:10; 46:13;47:21; response (12) 125:10 referring (3) 122:23;127:10,11, 65:13;91:10;93:3 23:10;109:4,8,13, reasonableness (1) 92:15,23;133:7 13;130:17;135:17, required (2) 19;110:12;111:25; 18:10 refers (1) 18;136:3 21:18;88:9 116:21;117:7;123:8; reasons (9) 62:4 relies (1) requirement (7) 125:3;138:24 14:14;50:14; reflected (2) 45:1 40:3;50:9,9;61:15; responsibility (1) 54:11;59:9;82:7; 26:14;29:19 reluctance (1) 63:5;73:22;121:25 83:19 87:9;93:8;113:11; reform (3) 55:24 requires (4) rest (2) 127:16 51:1;64:19;67:14 reluctant (1) 44:12,15;77:1; 25:7;103:8 recall (1) reformed (1) 19:3 111:12 Restatement (34) 15:3 69:9 rely (2) rescinded (1) 14:2;15:1,4,16; receiving (1) reformers (2) 58:12;100:18 142:10 16:7,9,11,25;39:22; 87:16 50:21;51:9 relying (3) reserve (2) 41:14;46:12,13,17, recent (3) refused (1) 7:24;114:11; 75:13;107:7 24;47:1,2,5,15;48:3, 24:16;39:8;55:17 19:3 138:19 residences (1) 13,25;49:11,19,19, recently (5) regard (4) remaining (2) 44:2 23;50:2,6,14,23; 39:5;45:7;81:20; 37:1;65:4;114:10; 55:9;126:21 resolution (2) 52:11;54:18,21; 90:2;116:12 130:8 remarks (1) 54:6;88:25 55:2;71:12 Recess (1) regarding (1) 75:21 resolution' (1) Restatement's (1) 56:15 100:22 remedy (9) 54:4 54:19 reckoning (1) regardless (2) 11:18;39:15,15; resolve (2) restoration (5) 36:13 60:15;139:9 72:21,21,21;97:18; 19:13;37:14 82:16;83:1,2; recognize (8) regs (2) 121:5,7 resolved (4) 84:10;95:7 8:15;19:25;59:3; 98:17;99:6 remember (3) 26:20;120:11; restore (1) 65:15;70:13;97:8; regulate (2) 63:6;89:23;108:10 129:12,13 84:6 103:10;110:6 8:16;78:4 reminded (1) resolving (1) restricted (1) recognized (18) regulations (4) 100:20 34:23 15:4 8:3,7;19:6;24:2, 53:6;74:20;80:1; rendered (1) resource (18) restriction (1) 21;27:17;31:1; 103:2 53:19 7:18;30:20;43:19; 53:11 49:12;56:4;58:3; regulators (1) repair (1) 44:4;69:20,24; result (5) 59:7,24;61:9;93:5; 106:21 92:19 71:19;74:4;78:10; 15:10;38:8;39:11; 97:6;134:7;135:19; reimbursement (1) repeat (3) 82:16;83:17;86:4,10, 53:22;62:10 136:13 124:23 5:22;21:20;88:18 14;93:12;95:6,7; results (1) recognizes (5) rejected (2) repeatedly (3) 96:25 64:3 6:9;26:15;54:2; 26:22;106:12 27:12;46:20;52:10 resources (21) retained (1) 58:14,20 rejecting (3) replead (1) 23:16;24:5;25:11; 110:18 recognizing (1) 38:6;49:23;50:14 112:16 32:1,3;59:1;60:10, retire (1) 97:10 rejects (2) reply (7) 10,18;68:6;69:22; 5:20 recommended (1) 49:18;134:5 52:25;54:5;75:13; 83:8;86:17;88:4; retroactively (3) 11:7 related (9) 102:22;106:9;107:7, 89:18;93:3,4,17,25; 32:12,19,20 record (6) 116:3;119:25; 9 106:20;120:2 Retroactivity (1) 55:16;95:14;96:1, 126:11,14;128:8; reported (2) respect (26) 32:15 6;97:19;115:13 130:2,5,17;141:11 10:9;101:3 18:24;19:9;23:12; return (1) recover (3) relates (3) reporters (1) 26:11;31:21;32:5; 42:8 41:15;121:14; 83:20;88:4;91:25 49:11 35:13;43:15;46:12; review (13) 140:18 relation (1) reports (1) 47:3;54:17;57:9,14; 25:1,8;48:10,11, recovery (3) 137:8 87:25 64:11;67:16;70:16; 21;49:9,10;50:17; 25:9;73:23;92:22 relative (1) represent (5) 75:3,8;83:12;93:13; 51:13;52:5;86:22; recreational (2) 80:1 73:10;111:14; 97:14;102:21;104:5, 88:6;93:4 27:25;80:6 relatively (5) 126:2,3;127:24 17;105:22;130:7 revised (1) Redesign (1) 95:13;137:1; represented (7) Respectfully (9) 101:5 50:19 138:3;141:6,15 3:7,9,10,11,14,15; 14:19;22:18,23; rewriting (1) reduced (1) release (1) 90:8 24:19;26:25;30:15; 88:25 132:17 100:21 representing (5) 31:17;45:6;55:5 Rhode (11) refer (3) relevance (2) 4:4;73:5,6;83:11; respective (1) 33:9;34:19,20,22, 26:17;31:22; 116:19,20 117:2 66:5 23;41:5,7,7;45:7,17; 133:15 relevant (3) request (3) respects (3) 95:2 reference (6) 112:25;128:12; 3:18;118:7;127:11 27:15;51:7;67:6 Richfield (8) 7:24;60:3,4;76:9; 137:6 requested (1) respond (6) 34:21,22;35:9; 106:15;142:7 relied (3) 107:13 48:9;52:4;117:23; 57:17;62:24;68:16;

Min-U-Script® eScribers, LLC | (973) 406-2250 (19) reasonable - Richfield [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

84:14;88:19 23:3 18:4;24:24;25:3; 53:12;54:17,21,25; 100:14,17;141:4 right (133) roots (3) 29:1,5;34:25;36:8, 132:20;142:10 sets (3) 4:25;5:4,7,21; 11:8;25:6;29:11 20;37:23;38:2; sections (1) 18:10;46:20;88:1 6:19,23;7:13;9:16; Ross (1) 48:17;66:17,23; 54:18 setting (3) 12:12;16:23;18:22, 3:12 68:8;70:9;71:22; secure (1) 13:7;68:2;99:11 23;19:15,16,18,19; roughshod (1) 72:8;73:15;77:15; 135:17 settlement (1) 20:10,11,15,24;21:1; 19:4 79:14;81:3,7;84:6; secured (1) 137:20 22:6;24:20;28:10,22, royal (1) 86:19;92:14,14; 132:19 sever (10) 23,24;30:12,14,16; 79:4 93:10;97:7;98:19,21, securing (1) 4:17;119:6,7; 31:15;33:24;36:20; ruined (1) 23,25;99:2;100:1,6, 138:25 126:25;127:18; 39:2;42:2,5,7;43:1,2, 43:7 8;103:10,16;110:21; sediments (2) 131:17;133:25; 3,5,8;44:16,19,20; rule (11) 111:7;117:12,20,21; 67:19;69:5 135:8,11;136:15 45:8,15,17;46:3; 21:22,23;32:10; 121:25;134:24; seek (4) several (2) 52:19;53:4,21; 41:14;45:13;109:9, 136:10;137:10,11, 59:12;97:18; 34:24;68:20 58:25;64:17;66:8,17, 13,16;113:19;128:6; 12;138:22 104:16;124:22 sewage (1) 23,25;67:4;70:10,14, 138:18 scenario (6) seeking (6) 30:17 16,19;71:1,7,14; ruled (1) 121:23;123:3; 42:11;43:17,17; shall (1) 73:1,6,12,19;74:17, 16:19 139:21;140:11,17; 113:17;122:23; 3:23 21,23;75:13;76:2,12; rules (2) 141:2 136:3 share (1) 80:9,10,25;82:3; 90:25;91:1 Scheele (1) seeks (1) 90:17 83:22;84:1;85:23; ruling (1) 54:4 39:19 shared (1) 89:10;90:9,17;91:1; 101:24 Scheindlin (2) seem (1) 78:10 92:1;93:6,20;94:5; run (2) 26:18;29:20 102:15 sharply (1) 97:11,12,14;98:2,23; 71:14;126:4 schools (3) seemed (3) 36:2 99:16;100:5,18; runs (1) 66:14,14;67:17 52:18;69:14; shed (1) 103:1,11;104:19; 33:20 science (2) 101:17 116:3 105:1;107:7;108:7; 87:2;118:21 seems (12) sheen (1) 112:20,24;114:11, S scientists (1) 30:25;31:1,7,10; 90:14 12;119:4,7;121:25; 86:13 91:5;100:15;101:14; shield (1) 122:19;125:8,20; saddle (1) scope (13) 102:5;103:12;115:2; 131:24 126:7,10,10;127:15; 132:2 7:6;9:20;10:19; 128:14;138:7 shocked (1) 130:8;131:3;132:16, safe (2) 26:9;27:14;28:1; sell (1) 77:23 17;133:9,14;134:25; 86:19,21 52:25;54:20;55:1; 87:17 shocking (1) 135:1;136:8;137:9; sale (3) 60:8;93:25;95:8; selling (2) 50:20 138:4,13;139:11; 8:1;10:2;11:24 102:21 77:5,6 shoes (6) 140:20 same (34) scribbling (1) send (1) 42:14,22;45:2; rights (8) 8:23;13:22;25:12; 40:19 142:9 73:13;74:1,2 7:8;10:21;24:9; 35:6;56:25;57:20, se (4) sense (6) shooting (1) 44:13;45:1,21; 21;61:3;64:22; 60:14;91:9;97:15; 45:20;83:3;88:24; 112:20 97:16;135:2 75:17;83:22;84:3; 102:8 126:24;127:25; short (9) rise (5) 90:25;91:1,6,21; seated (2) 136:25 43:15;56:11; 3:2;56:14,16; 103:9;114:24; 3:5;56:17 sensible (1) 65:21;66:3;107:6,7, 133:9;143:3 116:13;117:15; Seattle (1) 68:6 21;108:15;114:18 risk (1) 118:12;127:10; 41:9 sentence (2) shorter (1) 100:2 129:17,18;130:9,11, SEC (1) 25:5;99:8 67:5 RITCHIE (1) 14,15;134:1,20; 110:3 separate (9) shorthand (1) 5:6 135:8,9,24;138:14 Second (25) 58:13;60:22; 23:17 river (2) sample (1) 16:7;33:17;38:10; 73:17;74:3;84:3; show (11) 30:17;79:6 63:14 39:22;41:10,14; 108:11;111:13; 28:22;37:11; road (1) sampling (3) 46:17;47:1,5;49:19; 119:23;126:6 41:17;44:13,16; 95:11 62:5,7;64:2 52:12;55:2;65:23; sequel (1) 71:1;73:10;109:12; rock (1) Sanjetta (1) 67:5;77:17;89:1,2; 78:25 114:10;121:8; 76:14 20:6 92:10;106:9,12,14; series (1) 128:15 rocket (1) satisfactory (1) 108:21;109:3;118:1; 50:23 showed (2) 118:21 104:15 129:17 serve (1) 80:7;85:24 Rodgers (2) satisfied (1) secondly (1) 80:4 showing (1) 25:25;26:1 35:5 71:14 Service (2) 137:6 role (4) satisfy (5) section (26) 87:1;96:25 shows (2) 55:6,13;79:23; 134:19,20,21; 15:4;16:8,9,11,24; services (1) 81:13,15 89:18 135:3;139:24 18:3,9;32:7,17; 69:21 shuffling (1) room (1) save (2) 39:22;40:2;41:13, set (9) 114:6 5:8 32:25;142:12 15;46:18,24;47:19; 19:6;28:21;46:17; sic (10) rooted (1) saying (50) 49:1,3,5;50:23; 52:25;53:16;74:11; 23:23;24:22;

Min-U-Script® eScribers, LLC | (973) 406-2250 (20) right - sic [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

26:12;27:2;29:10; small (1) 3:17;75:9 140:4 98:7;100:1,21; 46:24;48:13;76:16, 137:7 SPEAKER (3) stand (2) 101:7;103:11;108:2, 21,22 smallpox (1) 5:11;107:18,23 104:2;127:25 19,25;109:3,7,8,12, side (9) 14:3 speaking (1) standalone (8) 14;110:3,10;111:16; 4:6,9;5:7,9; smart (1) 14:22 57:5;59:3,8,10; 112:9;115:25; 103:13,14;122:6; 112:11 special (4) 77:13;93:20;95:7; 120:14,24;121:4,9, 128:15;142:18 Smith (4) 30:3,4;41:14,17 97:18 15,16,19,22;123:8; sides (1) 34:23;45:15;81:3, specializes (1) standard (17) 124:7,22,24;125:2; 18:11 21 119:24 6:11,18;50:24; 127:11;130:4; sign (2) snippet (1) specialty (1) 51:6,7;63:19;65:4, 131:16;135:5,24,25; 79:22,22 9:12 110:18 15;67:6;100:14,14, 139:22;140:16 silent (1) societal (1) specific (10) 17,20;101:8;110:7; stated (2) 47:1 30:23 70:17;77:6;91:10; 119:1;123:25 67:21;69:10 similar (8) Society (1) 105:3;109:19; standardless (2) statement (17) 23:19;39:11; 27:10 110:21,24;111:7; 17:22;18:15 25:2;57:6;61:7; 44:22,25;50:11; soils (2) 112:15;125:23 standards (4) 65:21;66:3;68:9; 61:5;62:23;135:12 67:20;69:5 specifically (3) 18:12;61:21; 84:13,15;89:23; simple (4) sold (2) 39:10;110:21; 97:25;98:7 90:4;91:5,7,19;92:5; 65:25;108:13; 12:23;34:11 130:2 standing (24) 101:6,18;102:13 122:21;142:18 sole (1) specificity (1) 25:4;31:10;57:16, State-owned (4) simpler (1) 120:15 18:20 23;58:20,21,23; 35:13;42:5;69:23; 128:4 solely (2) specter (2) 59:11;61:1;73:13,25, 75:3 simplifies (1) 122:2;140:12 104:6,20 25;74:2;75:25;76:3; states (7) 122:12 solved (1) spelled (1) 77:15;92:10,21; 8:9,22;47:18;65:2; simply (5) 68:22 80:17 93:2;96:20;97:12; 105:21;135:6;139:7 52:23;53:18; solvent (3) spend (2) 99:12;103:16; states' (1) 109:22;122:15; 12:23;115:2,4 82:17;131:4 126:15 8:20 141:1 somebody (9) spent (4) standpoint (4) state's (17) sing (1) 12:23;76:14;82:5; 5:16;43:2;125:13; 36:5;83:4,5;128:8 8:7,25;61:16;66:1; 78:23 86:10,19;91:16; 130:25 stands (1) 92:17;97:10;99:11; single (8) 98:8;102:9;138:13 spill (2) 27:13 103:14;108:24; 6:7,9;10:9,11; someone (5) 94:18,20 start (5) 119:17;120:2; 20:23;21:4,17;140:3 12:14;98:10; spin (1) 96:12;118:5; 121:14;124:9; single-spaced (1) 99:15;115:21; 124:20 121:1;135:22; 134:11;135:2; 66:19 127:21 spinoff (9) 139:17 139:22;140:4 sister-state (2) someone's (2) 121:10,18;131:5, started (5) statewide (6) 23:24;24:11 39:17;74:15 7;132:6,9;137:19; 4:24;49:6;56:11; 62:4,7;63:21; sites (15) something's (1) 140:6;141:12 90:15;139:18 84:21;87:19;89:19 64:20;66:1,2,11, 73:8 spinoffs (3) starting (2) static (1) 12;68:4;84:24; sometimes (5) 116:25;117:19; 5:7;122:10 6:25 87:21;88:18,22; 82:7;94:15; 141:12 State (130) stating (1) 89:15;100:24;101:3, 101:22;104:18,19 spins (1) 3:6;4:4;6:19;9:18; 39:13 9;105:7 song (1) 132:1 11:22,24;12:6; station (1) sitting (2) 78:23 spoken (1) 19:10;23:15;24:1,3, 38:20 20:12;94:25 Sorry (6) 126:22 5,8,20,23;25:10; statute (19) situation (10) 5:5;32:14;47:23; sprained (1) 26:14,15;31:23; 14:16;38:8,10; 9:11;23:19;55:21; 70:24;113:5;135:3 65:12 34:21;35:9;36:7,16; 58:3;70:15;84:16; 66:2,21;73:5;74:15; sort (13) spray (1) 39:8;40:4,11;41:6, 88:16;132:12,15,22, 90:22;133:12;139:8 29:6;37:13;38:23; 36:15 20;42:17;43:10,13; 24;133:4;135:17; situations (3) 68:21;77:1;83:3; spread (1) 44:4,6;45:9;46:1,2; 136:4,9;137:2,5,6; 11:19;12:17;93:23 85:12;87:25;90:5; 14:3 53:9;54:2;55:11; 139:10 six (1) 98:8;103:9,13;104:5 springs (1) 57:24;58:12,22,25; statutes (2) 62:8 sought (1) 13:14 60:1;61:4,9,10,19, 38:7;93:16 skiing (1) 66:5 spun (1) 21;62:4,11;64:23; statutory (2) 5:16 sound (1) 119:18 65:21;66:8;68:13; 55:10;58:1 slaughter (1) 128:6 square (1) 69:23,24;70:14;72:3, stay (15) 11:23 sounds (3) 54:13 11;73:16,18;78:6,6, 4:17;56:22; slightly (2) 4:19,22;11:5 stage (5) 18;80:25;81:3,17; 105:11;107:25; 60:23,24 Southern (1) 15:21;20:20; 82:7,13,18;83:11,18; 116:1;117:5;119:6, slippery (4) 26:18 64:22;95:9;100:6 84:2,6,7;85:13;86:4, 7;126:25;127:18; 105:13,13,15,16 sovereign (1) stages (1) 12;89:15,18;90:2; 128:20;129:8;135:8, slow (1) 93:21 65:20 92:1,14;93:2,3,8,11, 11;136:15 19:21 speak (2) stake (1) 17;95:19;96:17; stayed (1)

Min-U-Script® eScribers, LLC | (973) 406-2250 (21) side - stayed [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

141:20 subject (6) suggests (1) 140:15;141:7; 19:6;35:4,12;57:17; staying (2) 24:14;30:5;59:18; 79:10 142:12 60:25;62:23;68:2 135:21;136:22 64:13;74:19;97:4 suing (1) Surely (1) Teachout's (2) stays (2) submission (1) 31:6 14:3 14:10,16 123:15;127:13 107:6 suit (6) surface (3) teed (1) step (5) submit (12) 18:18;90:7,9; 6:8;60:20;66:12 22:11 42:13;45:2;56:2; 24:19;26:25; 91:16;133:17; surprised (2) telling (1) 96:8;107:18 30:15;31:17;33:12; 137:18 65:6;141:7 7:23 stepping (1) 40:18;45:6,15;56:1; Sullivan (1) surrounding (1) tells (1) 42:22 94:9;107:5;142:7 43:24 50:2 76:17 steps (2) submitted (1) sum (1) surrounds (1) ten (1) 64:21;98:15 135:6 100:25 11:1 137:21 sticks (1) subsection (1) summary (9) suspect (1) Tenth (3) 49:19 41:13 22:5;37:9;38:15; 54:15 57:19;92:14,17 still (16) subservient (1) 64:10;84:15;95:22; swallow (1) termed (1) 7:14,15;15:18; 78:12 113:3,5,8 36:1 23:16 21:22;28:8;71:17; substances (1) Super (1) swamp (1) terminated (1) 73:19;85:10;91:1; 66:14 107:3 90:11 8:2 100:2;112:12;120:8; substantial (2) Superior (6) swimmable (1) terms (17) 132:7;138:25;139:5; 57:1;140:2 27:10;80:25;81:4, 80:11 59:5;66:6;79:16; 140:7 substantive (13) 7;82:2,3 synergistic (1) 83:8;88:24;89:7; stipulations (4) 14:21;25:4;57:16; supplemental (2) 86:15 93:15,24;95:5;96:19, 117:9;118:9,13,18 61:1;76:1,2;92:21; 107:6;135:7 system (1) 23;101:4;130:1; stockade (1) 93:6;96:20;97:13; supply (1) 12:25 134:10;135:2,25; 12:2 103:12;111:19,22 12:21 systemic (1) 136:24 stocks (2) substitute (1) support (4) 85:12 test (7) 46:2,4 22:4 51:17;89:11; 42:19;46:20,22; stood (1) succeed (2) 112:16;113:23 T 47:20,21,21;52:11 116:12 100:7;114:9 supported (1) testimony (1) stop (1) succeeded (1) 51:1 table (2) 17:25 121:2 109:23 supports (1) 3:20;56:22 testing (9) stopped (2) successful (2) 52:19 tail (1) 84:21,25;85:12; 43:15;120:24 20:17;24:7 supposed (2) 136:19 87:19;88:7,8;89:19; store (1) successor (8) 89:11;92:15 talk (11) 100:22;104:24 84:5 108:22;109:7,9, Supreme (81) 33:6;57:4;58:24, theme (1) storms (2) 16;110:11;112:13; 5:17;6:2,7;8:4,6; 25;61:10;69:4; 34:5 27:19,20 113:17,18 9:6,6;10:10;11:9,10; 75:22;87:15;91:11; theory (4) story (1) sue (4) 12:17,21;13:2,9; 94:5,15 25:9;36:18;105:3; 121:1 25:10;57:24;82:3; 15:12;17:4,9,11; talked (5) 113:23 straight (2) 93:2 19:2;20:18,21;21:5, 3:22;69:4;86:25; therefore (4) 3:16;92:6 sued (5) 15,23;22:20;23:13, 93:18;95:16 39:3,3;45:14; stream (2) 12:23;13:1;91:22; 24;24:2,10,13,15,16; talking (16) 74:25 13:1;76:15 106:18;137:17 25:1,13,19,24;26:4, 7:14;20:24;25:6; thinking (4) streams (2) sues (1) 21;27:4,12,22;28:3, 35:8;41:21;58:16; 47:14;83:4;95:4; 28:2,4 82:7 9,12;30:8,16,16,19; 66:7,12;68:9;69:23; 119:13 street (1) suffer (1) 31:14;33:8,9;34:2,3, 70:6;76:10;82:1; Third (25) 36:14 124:9 24;42:10;46:11; 107:9;138:2;140:5 15:16;16:9,12,25; strict (1) suffered (1) 47:5;48:23;49:7,11, talks (2) 46:12,13,24;47:2,16; 46:16 85:8 18;50:12;52:9,24; 65:19;120:15 48:3,14,25;49:19,23; strikes (1) sufficient (4) 53:2,16,25;54:8,14; tandem (2) 50:2,6,14,16;54:18, 101:4 86:4;104:18; 55:7,13,24;56:2; 27:7;76:21 21;89:4,4;108:22; strong (1) 114:2;115:10 59:6;68:14;76:25; tangible (1) 133:12;142:10 51:5 sufficiently (1) 77:25;79:13;84:16; 17:7 thirty (1) stronger (2) 35:14 96:4;102:22 tango (1) 4:7 19:23,24 Suffolk (1) Sure (27) 89:8 Thomas (2) strongly (3) 40:13 6:24;8:22;15:22, tantamount (1) 115:2,4 33:12,13;39:6 suggest (5) 24,25;20:13;32:21; 100:15 though (11) studies (1) 31:10;43:10; 37:19;47:10;57:10; targeted (1) 6:13;28:5;30:24; 90:12 52:18;95:17;96:6 74:8,10;77:18; 51:15 47:9;51:11;55:12; study (1) suggesting (5) 95:24;96:18;104:14; targeting (1) 58:14;82:7;101:25; 103:7 51:18;87:1; 105:19;111:18,22; 77:6 118:1,8 stuff (2) 103:15;124:21; 112:9;116:20,25; Teachout (10) thought (10) 87:14;129:18 141:20 134:17;135:2; 7:23;14:20;18:15; 3:19;4:5;79:21,21;

Min-U-Script® eScribers, LLC | (973) 406-2250 (22) staying - thought [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

85:20;98:19;109:18; 36:1;50:21;51:1,9; 5:19;6:3;17:7,9; 94:11,21;96:3,13,14; 115:20;127:25; 53:23;115:6 18:25;19:1,7;20:1,2, 102:2,23;103:5 U 128:4 torts (15) 3,23;21:14,17;22:17, trustee (34) thousands (1) 10:8;16:7,25;23:4; 22;35:5,11;40:6; 24:4;25:11;43:12; ubiquitous (2) 62:24 39:22;41:14;46:17; 45:5,14,21;46:4; 44:6;45:20;46:1; 84:20;89:19 threatened (1) 47:1,6;50:6,15; 54:13;57:9;58:1; 59:12;60:14,15; ultimate (1) 137:18 52:12;54:21;98:5; 61:5;67:24;69:13; 61:4;69:18;71:4,4, 88:24 three (5) 115:7 70:2,16,16,24,25; 15,19,19;72:4,14,14, ultimately (5) 21:21;63:9; totally (2) 73:21;80:16;81:5,15, 20,20;73:1,4,16; 7:8;28:17,19; 100:24;101:2; 6:25;71:11 22,24;82:5;102:7,8 74:4,22;92:17,18; 61:12;129:13 108:19 towards (3) trespassing (1) 93:12;97:11,12,15; Um-hum (50) threshold (4) 48:13;136:2,3 52:22 103:12;106:19 6:20;7:11;8:14; 61:15,24;67:9; Town (4) trial (13) trusteeship (5) 13:4;14:7,12,18,23; 95:19 9:18;11:12;12:21; 21:5;23:5;31:17; 60:19;71:12;72:6, 15:8;17:5;31:3,5; throwing (2) 20:4 39:8,9,12;40:7,8; 25;102:21 35:25;37:10;44:14, 76:14,15 toxic (1) 47:7;55:13;76:5; trusts (1) 21;55:19;59:14; thus (2) 116:8 81:19;122:21 5:19 60:17;62:17;63:12; 17:13;23:19 track (2) tried (2) truth (1) 64:5,15;65:17; tie (2) 15:19;55:16 89:21;112:1 87:11 71:16;72:2;74:13; 15:13;27:14 tradition (1) tries (2) try (7) 75:24;78:8;79:19; tied (3) 51:11 121:4;123:8 5:22;34:5;94:14; 80:20;82:9;85:5; 15:2,6;61:12 traditional (2) trigger (1) 109:15;110:4,11; 92:25;97:17;101:20; ties (1) 37:5;76:9 86:4 111:18 104:9;108:14;110:8; 61:8 Traditionally (1) trillion (4) trying (5) 116:10;118:20; times (4) 10:19 61:22;86:11;87:3; 31:13;68:22,24; 119:19;120:17; 6:15;7:25;47:6; transaction (13) 101:10 109:4;116:13 124:1,17;125:24; 76:8 119:21;120:8,15, triple (1) turn (3) 131:18;133:5;134:3; Tioga (2) 16,18;121:2,9;125:5; 125:20 8:21;10:3;21:23 139:4 35:22;38:24 127:11;135:23; trouble (1) turned (1) unable (1) Title (3) 138:20;140:8,12 108:8 50:21 73:6 9:23;32:18;50:17 transcript (1) truck (1) Turning (2) unclear (1) tobacco (1) 116:17 36:14 6:6;8:19 29:5 114:20 transfer (11) Trucking (1) turns (1) uncured (1) today (13) 111:12;114:2; 32:12 85:9 104:22 3:20,22;40:18; 127:24;128:11,17; true (13) twenty (13) under (43) 87:7,8;95:16;98:10; 133:8,19;135:20; 22:25;37:16; 61:22;63:19;86:5, 6:22;9:4,15;12:11; 108:17;110:6;112:6; 136:15;137:14,16 45:16;46:23;47:17; 19;98:20,21,22; 13:2,25;20:17;22:8, 119:11;121:2;135:5 transferred (3) 64:12;82:21,23; 99:18,24;100:3,8,25; 14,20;23:15;25:10; together (2) 119:17;124:14; 84:11;91:2;124:10; 101:10 31:6;32:7;36:18; 40:3;141:3 137:8 131:2,20 twenty-five (1) 42:13;45:12;53:5; told (2) transfers (1) truly (3) 63:11 55:2;56:4;58:1; 76:24;85:19 131:24 10:4;11:19;67:16 Twerski (2) 59:15;70:11,14,15; tolling (10) transforming (1) trump (2) 48:11;50:25 72:16;73:10;85:11; 111:24;112:2,9; 96:19 79:4;81:17 two (33) 86:5;87:25;91:12; 115:16;116:3,14; transient (1) trust (99) 18:11;27:15;38:7; 100:8;103:2;105:2; 117:15;118:5,7,17 62:16 6:3,6,8,12,12,18; 40:2,2;44:11;50:24; 117:15;132:15; Tomaso (1) transitory (1) 7:5,6,18;8:7;9:1,5,8, 56:21;57:1,9,15; 134:25;135:17; 94:17 100:22 15,21,25;22:16,21; 60:13,22;63:9;83:5; 136:3,8;137:2,6; took (6) transport (1) 23:12,17;24:5,9; 84:3,24;85:23;89:8; 139:10 6:16;14:5;17:9; 62:16 25:3,8,10,12;26:9, 97:4,24;101:25; underlying (2) 110:21,24;132:3 transportation (1) 13,16;27:6,9,14,16, 108:11,18;110:13; 54:11;132:23 Tool (1) 79:7 21;28:4;29:18;30:5, 118:17;120:24; underneath (1) 50:13 treat (2) 21;31:1,8,24;32:7; 122:9;129:2;134:18; 69:20 tools (2) 42:19;125:16 36:16;43:19;45:16; 137:3;140:19,23 understands (2) 136:17,20 trees (5) 46:3;52:20;53:2; type (3) 18:11;118:25 top (1) 74:15,16,18,19; 54:6,17;57:4,14; 7:1,17;139:8 Understood (6) 90:14 76:15 58:10,12;59:1,1,1,2, types (6) 9:2;88:11;93:20; topic (1) trend (4) 20;60:9,10;71:11,12; 16:13;67:7,19; 102:17;105:18; 50:7 33:12;35:17,17; 75:22;76:1,5,21; 91:8;102:16;137:3 110:10 tort (17) 41:2 78:5,18,20,25;79:2, typical (2) undertake (1) 6:12;7:16,17;9:4, trends (1) 3,11,14,16;80:3,6,11, 109:16;124:11 84:21 14,22;10:1;18:17; 55:23 16,21;81:2,5,8,9,16, typically (2) undisputed (2) 22:15,15;29:23; trespass (42) 21;83:19;93:5,6,20; 64:23;109:9 21:13;132:19

Min-U-Script® eScribers, LLC | (973) 406-2250 (23) thousands - undisputed [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020 undo (1) 6:19;7:8;12:1; validated (1) 81:2 44:1,3,3,19;45:13, 138:21 21:19;22:11;25:24; 16:8 virtually (2) 17,18;60:20;61:22; undone (1) 26:3;42:9;43:2; value (3) 21:24;133:3 62:15,18;72:12; 138:21 49:15;50:12,16; 13:5;43:8,18 virtue (1) 81:10;82:6;83:15,22, unfair (1) 56:9;68:2;74:11; values (3) 64:2 23;84:6;85:25; 51:8 77:17;81:13,15;82:6, 27:8;76:22;83:17 vitality (1) 87:13;99:13;100:2, UNIDENTIFIED (3) 12;84:19;88:1;94:7; various (1) 30:22 13,23;106:22 5:11;107:18,23 98:11;107:17;111:2; 14:14 vitiate (3) waterfront (1) UniFirst (3) 113:16;114:21; vast (3) 71:20;72:25;74:22 9:12 12:20,24,25 115:15;116:5; 19:25;41:2;63:10 VNR (1) waters (6) UniFirst's (1) 119:10;127:25; vehicle (1) 84:19 6:8;53:5;66:12; 12:22 131:13;132:21; 57:24 voidable (6) 80:11;86:12;103:1 uniform (1) 141:4 veil (2) 120:7,15;121:9; waterways (2) 133:4 updated (1) 108:21;109:5 125:5;135:22;140:8 28:6;76:23 uniformly (1) 101:1 venue (1) voidable-transaction (7) waterways' (1) 132:22 upheld (1) 133:21 121:15;124:12,13; 27:8 unintelligible (4) 33:18 verdict (5) 132:11,21;135:1; waxes (1) 68:25;89:24;91:7, upholding (1) 30:3,4;33:18; 137:3 67:17 9 41:10 41:10;43:1 voidable-transfer (1) way (24) unique (4) upon (6) veritable (1) 140:4 13:8;27:3;29:12, 8:8,25;108:12,18 8:25;54:11;58:12; 51:14 voided (1) 18;35:21;36:9; UNISON (2) 65:22;67:22;100:18 Vermont (123) 77:25 38:16;40:8,11,14; 3:4;143:2 upset (1) 3:6;5:17;6:2,7,22; voluntarily (1) 44:23;67:18;68:21, unjust (2) 23:6 8:3,6,22;9:6,6,12,19; 117:11 23;74:11;76:13; 133:18,20 usage (1) 10:10;11:9,10,22; vote (1) 82:6,17;83:8;93:15; unlegislated (1) 80:6 12:17,21;13:2,9; 51:15 112:4;114:21;141:4, 6:11 use (41) 15:12;17:4,8,10,23; VSA (1) 22 unless (7) 10:12;12:5,22,25; 19:2;20:17,18,21,23; 132:20 ways (5) 30:5;46:6;53:8; 13:6,16,17,24;15:5, 21:5,8,15,21,23; Vt (5) 69:1,2;108:19; 99:17,17,23;109:10 7,14;16:14;17:15; 22:20;23:13,20,21, 11:13;13:10; 122:15;127:7 unlikely (2) 18:4;23:17;24:8; 22,24;24:10,13,15, 24:12;32:13;53:1 Webb (8) 123:3;126:23 34:6;36:7,12,20; 22;26:7,11,13,19,21, 46:15,23,25;47:4, unliquidated (1) 39:20,24;40:1,3; 24;27:2,4,12,22; W 18,18;49:3;52:8 132:18 43:25;44:1,16,19; 28:23,25;29:5,10,21, week (2) unmanageable (1) 63:21;68:5;72:24; 22;30:8;31:14,23,25; wags (1) 5:16,17 68:1 74:20;79:5,6;80:1; 32:6,11;33:23;36:3, 136:19 weekly (1) unmatured (1) 81:14;93:9;94:23; 4;42:15;46:11,15,20; wait (4) 101:2 132:18 126:24;136:17; 47:5;52:9,19,21,24; 103:22,24;126:4; weigh (2) unnecessarily (2) 137:5 53:2,3,4,16,25;54:8, 139:20 37:13;120:10 18:17;22:18 used (9) 14;55:7,11,20,24; waited (1) weighing (2) unnecessary (4) 28:5;31:4;34:12, 56:2;60:4;61:21; 84:17 86:23;87:4 13:18;111:11; 17;35:2;65:7;79:4; 65:3;76:5,6,17;77:6, waiting (1) Weimer (2) 112:3;125:18 100:3;140:2 7,20,21;78:13,18; 64:19 3:10,11 unquestionably (1) useful (1) 79:12;80:8,19;84:11, wake (1) well-known (1) 31:25 4:5 14;87:17,18;88:18; 34:23 57:19 unreasonable (4) uses (4) 91:23,25;93:10,24; walk (1) wells (8) 18:2,8;24:8;125:7 27:8;36:9;48:11; 95:7;96:3,5,5;97:5; 98:13 42:15,17,19,19; unreasonably (1) 76:22 102:25;110:7;133:3 walking (1) 62:15,18;82:8; 137:7 using (2) Vermont's (4) 51:20 100:23 unregulated (1) 36:21;120:25 10:6;102:23,24,25 wants (6) weren't (4) 6:11 usually (5) versus (3) 6:10;46:7;84:7; 19:20;36:21,24; unrelated (4) 10:12;91:4,7; 11:12;44:8;49:17 107:25;124:7;125:3 98:15 16:14;125:4,5; 124:13;125:16 vested (3) wary (1) wharfs (2) 129:21 Utah (1) 7:2;78:21;81:16 54:15 6:21;53:13 unsecured (1) 5:16 vetting (1) washes (2) What's (15) 132:19 101:15 66:13;67:17 15:23;16:21; unspecified (2) V viable (2) waste (2) 32:14;34:6;60:9; 66:12,13 21:23;140:1 112:3;127:18 87:5;89:24;99:7; unwilling (1) vagaries (1) view (8) water (40) 103:4;105:21,25; 112:9 104:21 11:14;17:9,16; 7:14,14,15;12:4, 106:1,13;117:3; unwind (2) vague (5) 36:2;39:18;86:10; 21,25;13:1;17:24; 138:24 121:10;127:11 11:15;61:17; 128:19;129:12 18:9;19:10;27:18, Whenever (1) up (35) 66:18;67:16;102:14 violating (1) 20;40:13;43:7,18; 56:13

Min-U-Script® eScribers, LLC | (973) 406-2250 (24) undo - Whenever [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

Whereas (1) work (1) 01 (1) 1997 (1) 93:6 142:12 87:2 50:13 3 wherever (2) worked (1) 81:12;130:23 90:20 1 2 3,000 (1) whiteboard (1) workings (1) 68:4 108:9 117:18 1 (2) 2 (1) 30 (5) whole (5) works (1) 41:13;122:16 136:14 92:12;103:8,15; 7:2;22:2;53:14; 81:11 10 (2) 200 (1) 110:17;114:1 82:16;114:23 world (2) 9:23;32:18 55:22 300-million-dollar (1) whose (2) 77:7;139:22 11 (1) 2002 (2) 137:20 30:19;51:16 worried (1) 54:5 8:2;133:16 30b6 (1) wide-ranging (1) 136:11 11:32 (1) 2005 (2) 117:4 125:3 worries (1) 143:4 29:21;137:21 31466761 (1) wildlife (5) 73:18 111 (1) 2008 (1) 133:16 31:22,25;32:1; worry (2) 25:8 32:17 32 (1) 60:20;69:5 86:15,16 12 (1) 2009 (1) 53:1 William (2) wrapping (1) 15:2 48:10 342 (1) 25:25;26:1 21:19 128 (1) 200-plus (1) 26:12 willing (2) wrestle (1) 13:10 23:6 343 (1) 118:8,8 50:8 12b6 (3) 2011 (1) 26:12 win (4) Wright (2) 15:11;21:24;22:4 24:2 353 (1) 30:7;42:25; 65:19;66:2 12b6s (1) 2012 (1) 11:13 121:14;138:14 write (1) 21:22 53:1 363 (1) winnowed (1) 48:19 13 (1) 2013 (1) 32:13 22:12 writing (1) 45:19 108:25 3M (14) wins (4) 94:13 134 (1) 2015 (11) 3:8;4:10;8:1; 111:18;121:9; written (2) 11:12 42:9;50:5;120:16, 22:23;35:20;36:13; 124:22;139:22 24:25;51:2 1390 (1) 23;121:3;131:5,7,25; 40:25;45:19;47:7; wiped (1) wrong (5) 32:17 133:1;140:12;141:1 48:11;49:10;55:1; 90:14 77:16,23;123:9; 1400s (1) 2016 (2) 92:5;124:25 Wisconsin (1) 136:10;140:20 77:8 49:18,23 3M's (2) 49:22 wrote (4) 1410 (1) 2017 (2) 6:4;38:25 wisdom (1) 10:18,24;11:13,17 18:3 13:10;43:24 18:7 1410f (1) 2018 (2) 4 wise (1) Y 32:7 54:19;84:18 37:13 145 (1) 2019 (3) 4 (1) wish (1) year (3) 26:24 24:12,13;100:22 25:22 3:25 39:15;62:7;109:6 152 (1) 2020 (1) 402-9 (1) within (11) years (12) 32:13 94:25 50:23 9:8;55:1;60:9,19; 17:17;22:4;23:6; 182I (1) 204 (1) 402A (4) 64:3;72:6;75:4; 34:24;50:5;55:22; 69:3 13:10 18:18;46:18;47:5, 84:21;103:4;122:2; 56:6;68:20;108:25; 182I-A (1) 208 (1) 19 128:5 120:24;137:21; 69:6 69:6 4931808 (1) Without (7) 141:13 1894 (1) 20th (1) 133:2 29:7;55:16;61:13; Yep (2) 11:23 100:21 72:21;99:14;101:23; 107:2;136:7 1898 (1) 21 (1) 5 121:5 yesterday (1) 11:24 54:19 WL (2) 16:23 19 (1) 217 (1) 5 (2) 133:1,16 York (5) 119:12 58:11 15:3;25:23 women (1) 21:9;26:19;33:17; 19.9 (1) 22853 (1) 533 (1) 53:10 40:6;41:9 86:11 132:20 26:24 wonder (1) Yup (2) 1918 (1) 23 (1) 536 (1) 56:22 24:18;26:6 12:3 35:19 10:16 wonderful (1) 1975 (2) 25 (2) 547-6-19 (1) 45:8 Z 46:16;47:18 35:19;114:1 3:6 Woodbury (1) 1977 (1) 250 (1) 55 (1) 11:23 Zaleskie (2) 11:13 56:6 62:5 word (3) 47:18;52:8 1984 (1) 27 (1) 57 (1) 11:1;31:4;34:7 zero (2) 10:23 114:1 62:6 words (8) 101:10,10 1990s (2) 273 (1) 572 (1) 15:9;45:12;52:17; 49:5;50:21 10:16 39:14 61:3;62:15;66:2; 0 1996 (2) 29 (3) 59 (2) 81:6;142:1 46:15;49:3 24:12;25:2;114:1 25:9;62:6

Min-U-Script® eScribers, LLC | (973) 406-2250 (25) Whereas - 59 [email protected] | www.escribers.net STATE OF VERMONT v. 3M COMPANY, et al. February 20, 2020

6 (1) 109:22 60 (1) 61:20 67 (1) 61:20 8

8 (5) 16:8,11,24;54:21; 142:10 8:28 (1) 3:1 821b (1) 40:2 821c (2) 39:22;41:13 9

9 (5) 51:9;62:5;114:2; 115:10;132:20 9:38 (1) 56:15 9:45 (1) 56:15 99.9 (2) 122:12,25

Min-U-Script® eScribers, LLC | (973) 406-2250 (26) 6 - 99.9 [email protected] | www.escribers.net