-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

More documents

Recommendations

Info

kits for total PAHs—a method that is not U.S. Environmental Protection Agency (“U.S. EPA”) approved, nor in the analysis plan. 454 Perhaps as significant as the failure to use an accredited lab, both the plaintiffs and Mr. Cabrera failed to provide the quality control analyses necessary to confirm the accuracy and precision for each analytical method. 455 For each of Mr. Cabrera’s five sampling trips (the sixth trip was not conducted by Mr. Cabrera), there are one or more quality issues with the data that render the results invalid. The laboratories plaintiffs and their consultants used to prepare the report they attributed to Mr. Cabrera did not supply, or supplied incomplete, quality assurance/quality control (“QA/QC”) information. 456 Likewise, the data produced by HAVOC lacked information regarding Data Quality Objectives which is another reason why that data must be considered invalid and should be held inadmissible. 457 Because of the absence of QA/QC data, Chevron is unable to independently determine the reliability of the data in the Cabrera Report or the data of the plaintiffs’ nominated experts. In essence, Mr. Cabrera and the plaintiffs ask Chevron and this Court to take their word that the data is valid—an impossible request to grant in light of the overwhelming evidence of Mr. Cabrera’s fraudulent work. Chevron has previously discovered and presented to this Court concrete reasons why this information cannot be accepted. These reasons include the following: • Chevron conducted a double blind study to document the HAVOC laboratory’s analytical capabilities for most of the critical chemical analyses performed. 458 The results of this study demonstrate with a high 454 DOUGLAS, Gregory S., The Misuse of Field Screening Test Kits To Report Individual PAH Concentrations In Judicial Inspection Samples, attached as Annex 9 to Chevron’s Fourth Supplemental Motion for Terminating Sanctions, filed on Dec. 22, 2010 at 5:45 p.m. 455 See DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146201; see also DOUGLAS, Gregory S., Refutation of Mr. Cabrera’s Analytical Data and Evaluation of the Validity of his Sampling and Analysis Programs, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 148180-267, 148212. 456 See DOUGLAS, Gregory S., Refutation of Mr. Cabrera’s Analytical Data and Evaluation of the Validity of his Sampling and Analysis Programs, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 148180-267, 148185. 457 See DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146222-224. 458 In a “double blind” study, an unrelated third party prepares samples with known chemical concentrations and delivers them to a subject laboratory for testing. The subject laboratory is unaware that chemical concentrations are predetermined. The third party then compares the results of the subject laboratory’s tests to the known chemical concentrations and submits its evaluation to the client (in this case, the defendant). DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, at 36-44, attached as Appendix to Chevron’s CERT. INTERMARK VER: JD - 105 -
degree of scientific certainty that HAVOC was not capable of producing defensible, accurate, and precise analytical data. 459 • The analytical tests used in the Cabrera Report and by plaintiffs’ nominated experts to determine TPH levels in soil and water (Methods EPA 418.1 and APHA 5520F) were not agreed upon by the parties and have long been recognized as having limited utility, given the tendency of these methods to lead to false positives for or gross overestimates of TPH in water and soil samples, particularly common in samples with low hydrocarbon concentrations. 460 • The HAVOC lab misreported detection limits (the minimum concentration of a substance that can be measured and reported with ninety-nine percent confidence that the analyte concentration is greater than zero) as hits on sixteen different compounds for water samples. In all cases, the HAVOC MDLs are lower by one to three orders of magnitude than those of the approved method, and more surprisingly, they are all the same (0.000001 mg/L). 461 In light of all of the above, and given the limited sampling performed by Mr. Cabrera, it is not surprising that in private communications recently produced to Chevron, Mr. Beltman, the plaintiffs' paid consultant who took the lead on ghostwriting Mr. Cabrera’s report, admitted that the multi-billion-dollar remediation estimates done by Stratus in Mr. Cabrera’s name lacked scientific foundation. Mr. Beltman conceded to Mr. Donziger that “we do not know how much it will cost to remediate the contaminated soils in the Oriente”; “[w]e don’t know what the area or volume of soils is that requires remediation because the data collections to date have not been designed to define the full extent of contamination”; and we “also don’t know how much the cleanup will cost per soil unit area or volume.” 462 In the same memorandum, Mr. Beltman also (continued…) Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146233-41. 459 See DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, at 5, 36, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146202, 146233. 460 DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, at 12-13, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146209-10. 461 DOUGLAS, Gregory S., Evaluation of the Validity of the Plaintiffs’ Suggested Experts’ Analytical Data from the Judicial Inspections, at 19, attached as Appendix to Chevron’s Objections to Expert Cabrera’s Global Report, filed Sept. 15, 2008 at 2:14 p.m., Record at 146198-268, 146216. 462 E-mail from Douglas Beltman to Steven Donziger, dated Sep. 23, 2008 at 7:28 p.m., attached as Annex 8 to Chevron’s Second Supplemental Motion for Terminating Sanctions, filed Dec. 8, 2010 at 4:21 p.m. (attaching memoranda regarding a settlement, including one analyzing the potential relationship CERT. INTERMARK VER: JD - 106 -
Page 1 and 2:
TO THE SUBROGATE PRESIDENT OF THE P
Page 3 and 4:
3.4.3 Mr. Cabrera’s Fieldwork Was
Page 5 and 6:
7.3.1 Plaintiffs Have Failed to Pro
Page 7 and 8:
the arguments in the Cabrera Report
Page 9 and 10:
negligence where TexPet was directl
Page 11 and 12:
they not only secretly conspired us
Page 13 and 14:
has repeatedly shown to be corrupte
Page 15 and 16:
plaintiffs’ egregious and fraudul
Page 17 and 18:
to annul the rulings of Judge Núñ
Page 19 and 20:
filed on September 16, 2010 at 5:15
Page 21 and 22:
after the conclusion of the evident
Page 23 and 24:
conditions in the Amazon region rel
Page 25 and 26:
during Consortium operations, Chevr
Page 27 and 28:
alleged liability and obligations w
Page 29 and 30:
the basis of Article 2260 of the Ci
Page 31 and 32:
1.1 Chevron Never Operated in Ecuad
Page 33 and 34:
Plaintiffs allege that this corpora
Page 35 and 36:
in the complaints in the[] U.S. act
Page 37 and 38:
If the plaintiffs had timely sued T
Page 39 and 40:
2.1 The Plaintiffs Submitted Fabric
Page 41 and 42:
As Dr. Calmbacher’s testimony ind
Page 43 and 44:
were “choreographed”; just “a
Page 45 and 46:
in working clandestinely and in col
Page 47 and 48:
Rather, he worked alongside, and on
Page 49 and 50:
During this meeting of March 3, 200
Page 51 and 52:
course you really have to be comfor
Page 53 and 54:
David Mills, another of plaintiffs
Page 55 and 56:
consultants—it can no longer be c
Page 57 and 58:
ecome the Cabrera Report, a note ob
Page 59 and 60: assembled a team of experts” beca
Page 61 and 62: And even Mr. Donziger himself predi
Page 63 and 64: from the supplemental report’s an
Page 65 and 66: Mr. Cabrera repeatedly promised to
Page 67 and 68: • Mr. Cabrera breached his obliga
Page 69 and 70: Second, to exaggerate his volume fi
Page 71 and 72: headquarters in Quito. The recordin
Page 73 and 74: (viii) The award will be made in pa
Page 75 and 76: Chevron which are unreasoned, viola
Page 77 and 78: complete investigation, particularl
Page 79 and 80: was submitted, Mr. Donziger told th
Page 81 and 82: this case by completely dismissing
Page 83 and 84: mechanism—a second, ad hoc eviden
Page 85 and 86: attempted to confirm, it recognized
Page 87 and 88: equested that Judge Ordóñez be re
Page 89 and 90: protocols for analyzing samples tak
Page 91 and 92: The plaintiffs first tried, in Janu
Page 93 and 94: Accordingly, Chevron opposed the re
Page 95 and 96: possibility to defend itself, refut
Page 97 and 98: seen conceding in the Crude outtake
Page 99 and 100: eport could be analyzed by the cour
Page 101 and 102: lacked those qualifications. Indeed
Page 103 and 104: and the installation of geomembrane
Page 105 and 106: guessing . . . always confused.”
Page 107 and 108: samples of doubtful origin and inad
Page 109: Indeed, although Mr. Cabrera stated
Page 113 and 114: pathways”-to “recommend that th
Page 115 and 116: ecommended an economic value of bil
Page 117 and 118: Chevron also invoked its constituti
Page 119 and 120: postponed a decision. 497 For insta
Page 121 and 122: “was not engaging in any exercise
Page 123 and 124: jurisdiction over Chevron. Then, as
Page 125 and 126: hasten a large judgment against Che
Page 127 and 128: Mr. Berlinger recently corroborated
Page 129 and 130: with him.” 536 The plaintiffs eve
Page 131 and 132: has “the most ridiculous legal cu
Page 133 and 134: Government “already [knew] about
Page 135 and 136: gathering evidence” against Chevr
Page 137 and 138: amount of money, and there are no a
Page 139 and 140: ecommended dismissal of the 2003 cr
Page 141 and 142: to settle the civil case. 608 Docum
Page 143 and 144: that the Government was managing Ju
Page 145 and 146: essential formalities with nullity
Page 147 and 148: 4.2 Nullity Due to This Court’s L
Page 149 and 150: oth on the provisions of the Civil
Page 151 and 152: 4.4 Nullity Due to the Lack of Lega
Page 153 and 154: The common legal representative’s
Page 155 and 156: continue to hear [the case] until t
Page 157 and 158: the right to bring all indivisible
Page 159 and 160: Each municipal suit was settled in
Page 161 and 162:
Like the local governments, the Gov
Page 163 and 164:
These services were to be administe
Page 165 and 166:
5.2.4 The Settlement Agreements Sig
Page 167 and 168:
elease collective claims based on t
Page 169 and 170:
effect of administrative acts “is
Page 171 and 172:
i.e., to the inability to anticipat
Page 173 and 174:
This was expressly acknowledged by
Page 175 and 176:
plaintiffs’ alleged claims, it co
Page 177 and 178:
the complaint.” 768 Accordingly,
Page 179 and 180:
management of natural resources, an
Page 181 and 182:
Article 43 created a new course [si
Page 183 and 184:
plaintiff shall not amend it, nor s
Page 185 and 186:
Because the complaint sought compen
Page 187 and 188:
category of damages we possibly can
Page 189 and 190:
ecovery for such a claim must go di
Page 191 and 192:
v. “Recovery of the land and cult
Page 193 and 194:
Plaintiffs’ argument is wrong on
Page 195 and 196:
damages, based on conduct preceding
Page 197 and 198:
7.2 Plaintiffs Have Failed to Prove
Page 199 and 200:
tripled the requested damages from
Page 201 and 202:
damages. Moreover, the new reports
Page 203 and 204:
conditions and liabilities within t
Page 205 and 206:
ing them below 1,000 mg TCLP-TPH pe
Page 207 and 208:
The areas remediated by TexPet requ
Page 209 and 210:
cleanup of the very sites in questi
Page 211 and 212:
water resource, under any hypotheti
Page 213 and 214:
None of this could have been a surp
Page 215 and 216:
with TexPet. 927 In September 2007,
Page 217 and 218:
excess of what any similar remediat
Page 219 and 220:
plaintiffs’ proposed plans to ins
Page 221 and 222:
extra petita. In all events, any su
Page 223 and 224:
epresentative of the Frente—the n
Page 225 and 226:
establish a causal connection betwe
Page 227 and 228:
Stratus, the paid consultants hired
Page 229 and 230:
eached by disregarding the data pro
Page 231 and 232:
As the Government had intended, col
Page 233 and 234:
equests for damages. 1021 For examp
Page 235 and 236:
of a particular hazardous substance
Page 237 and 238:
Agreement, Scope of Work, and RAP,
Page 239 and 240:
detected. However, none of these co
Page 241 and 242:
contamination. 1050 This Court shou
Page 243 and 244:
enrichment for the victim.” 1062
Page 245 and 246:
accord, and acknowledge that a clai
Page 247 and 248:
In any event, even if an unjust enr
Page 249 and 250:
Second, since TexPet already undert
Page 251 and 252:
• With regard to pit remediation,
Page 253 and 254:
away from the figures” in the pla
Page 255 and 256:
maintained, and corroded pipelines.
Page 257 and 258:
the claimed health effects they all
Page 259 and 260:
Article 7(20) of the Civil Code pro
Page 261 and 262:
3. As Your Honor is aware since it
Page 263:
g) Total lack of effective and time
show all

-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

Create successful ePaper yourself

Delete template?

Save as template?