Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 1 of 16 PageID #: 914

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PHARMACIA LLC,
Plaintiff,
v.

AGEAS INSURANCE LIMITED f/k/a
BISHOPSGATE INSURANCE
COMPANY, et al.,

§
§
§
§
§
§
§
§
§
§
§

Civil Action No. 2:15-cv-920

Jury Trial Demanded

Defendants.

PLAINTIFF’S SUR-REPLY TO INDIVIDUAL DEFENDANTS’ MOTION TO DISMISS
OR ABSTAIN

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 2 of 16 PageID #: 915

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

THIS COURT HAS FEDERAL QUESTION JURISDICTION .........................................2

II.

ABSTENTION IS UNWARRANTED HERE ....................................................................7

CONCLUSION ..............................................................................................................................10

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 3 of 16 PageID #: 916

TABLE OF AUTHORITIES
Page(s)
CASES
Black Sea Inv., Ltd. v. United Heritage Corp.,
204 F.3d 647 (5th Cir. 2000) ...................................................................................................10
Colorado River Water Conservation District v. United States,
424 U.S. 800 (1976) ...................................................................................................................2
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102 (1980) ...................................................................................................................6
International Paper Co v. Ouellette,
479 U.S. 481 (1987) ...................................................................................................................3
Kelly Inv., Inc. v. Cont’l Common Corp.,
315 F.3d 494 (5th Cir. 2002) ...................................................................................................10
Leo v. Gen. Elec. Co.,
538 N.Y.S.2d 844 (N.Y. App. Div. 1989) .................................................................................4
New Eng. Ins. Co v. Barnett,
561 F.3d 392 (5th Cir. 2009) .....................................................................................................9
R.R. St. & Co. v. Vulcan Materials Co.,
569 F.3d 711 (7th Cir. 2009) .....................................................................................................9
Rollins Environmental Services (FS), Inc. v. Parish of St. James,
775 F.2d 627 (5th Cir. 1985) .................................................................................................5, 6
Royal Ins. Co. of Am. v. Quinn-L Capital Corp.,
3 F.3d 877 (5th Cir. 1993) .........................................................................................................8
Sherwin-Williams Co. v. Holmes Cty.,
343 F.3d 383 (5th Cir. 2003) .....................................................................................................8
Texas Employers’ Insurance Ass’n v. Jackson,
862 F.2d 491 (5th Cir. 1988) .....................................................................................................8
Travelers Insurance Co. v. Louisiana Farm Bureau Federation,
996 F.2d 774 (5th Cir. 1993) .....................................................................................................8
United States v. Price,
361 U.S. 304 (1960) ...................................................................................................................6
ii

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 4 of 16 PageID #: 917

STATUTES
15 U.S.C. § 2605 ..............................................................................................................................5
15 U.S.C. § 2605(e) .....................................................................................................................5, 7
15 U.S.C. § 2605(e)(2)(B) ...............................................................................................................6
15 U.S.C. § 2617 ......................................................................................................................3, 5, 7
15 U.S.C. § 2617(a)(2)(B) ...............................................................................................................4
15 U.S.C. § 2617(a)(2)(B)(i)............................................................................................................5
15 U.S.C. § 2617(b) .........................................................................................................................4
15 U.S.C. § 2619 ..............................................................................................................................3
15 U.S.C. § 2619(a) .........................................................................................................................4
15 U.S.C. § 2619(c)(3).................................................................................................................3, 4
15 U.S.C. § 2649(a) .....................................................................................................................2, 4
15 U.S.C.§ 2649(c) ..........................................................................................................................4
15 U.S.C. § 2649(e) .........................................................................................................................4
TSCA Modernization Act of 2015, § 7(b)(3) ....................................................................................7
TSCA Modernization Act of 2015, § 7(c) .........................................................................................7
REGULATIONS
40 C.F.R. § 761.30(a).......................................................................................................................6
40 C.F.R. § 761.30(f) .......................................................................................................................6
44 Fed. Reg. 31514 (2012) ..............................................................................................................6
OTHER AUTHORITIES
A. Andrews & K. Holmstrom, The Possibility of Parallel Litigation: Federal
Abstention and Declaratory Judgment Actions .........................................................................9
Webster’s New World Dictionary (3d col. ed. 1988) ......................................................................5

iii

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 5 of 16 PageID #: 918

INTRODUCTION
In their Reply Brief, counsel for Individual Defendants (hereinafter PCB Counsel) make
a series of new arguments not raised in their initial Motion to Dismiss or Abstain. These new
arguments focus on two topics—federal subject matter jurisdiction and abstention—and are each
contradicted by statutory text or Fifth Circuit case law.
Federal Subject Matter Jurisdiction: PCB Counsel do not genuinely contest this Court’s
diversity of citizenship jurisdiction. Instead, they attack the “complete preemption” grounds for
federal question jurisdiction alternatively alleged in Pharmacia’s Complaint. Because there is no
genuine dispute regarding diversity jurisdiction, this Court need not reach federal question
jurisdiction. Nevertheless, as set forth in more detail below:
1.

Contrary to PCB Counsel’s arguments (at 4-5), there is no “savings clause” in the

Toxic Substances Control Act (TSCA) that can contradict the plain language of TSCA’s express
preemption clause. The “savings clause” they cite is limited by its own terms to the statutory
section where it appears, and does not apply to the separate express preemption provision, which
is in an entirely different section of TSCA. Indeed, the U.S. Supreme Court has already rejected
the same type of atextual argument PCB Counsel makes here.
2.

Also contrary to PCB Counsel’s brief (at 5-6), TSCA’s preemption clause

unambiguously applies whenever EPA has promulgated rules for PCBs under 15 U.S.C. § 2605.
Hundreds of pages of EPA PCB rules have been promulgated under that section. Under the
preemption clause, preemption applies whether or not there is an actual conflict with EPA’s
rules; and, in any event, Individual Defendants’ PCB claims are unavoidably in conflict with
EPA regulations.
3.

To attempt to sidestep the plain text of the preemption clause, PCB Counsel also

cite (at 7) draft legislative history from a recent Senate bill that has not been passed.
1

This

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 6 of 16 PageID #: 919

ignores existing law but also ignores directly contrary legislative text and intent from a House
bill that has recently passed.
Abstention: Likewise, PCB Counsel’s abstention arguments (at 8-10) disregard contrary
case law in this Circuit. “Mandatory” abstention is inapplicable where different issues are raised
in the federal action or where the federal declaratory judgment is intended to resolve a
multiplicity of suits. And PCB Counsel’s argument (at 9) that no federal court ever issued a
declaratory judgment on preemption of asbestos suits omits one very key point: While PCB
claims are expressly preempted by TSCA, Congress clearly exempted all asbestos claims from
TSCA preemption in 15 U.S.C. § 2649(a). As to “permissive” abstention, PCB Counsel does not
come close to making the showing required by Fifth Circuit precedent to remove this case from
the restrictive abstention framework established by Colorado River Water Conservation District
v. United States, 424 U.S. 800 (1976).
In sum, PCB Counsel’s new arguments cannot support either dismissal or abstention.
ARGUMENT
I.

THIS COURT HAS FEDERAL QUESTION JURISDICTION
PCB Counsel do not genuinely contest this Court’s diversity jurisdiction. Thus, it is not

necessary to reach federal question jurisdiction. As indicated in Pharmacia’s Opposition Brief
(at 15), the “complete preemption” federal question doctrine has two parts: (1) that substantive
federal preemption applies; and (2) that the federal statute provides a substitute cause of action
for the preempted claim.1 PCB Counsel’s new arguments seem to focus principally on the first
of these two prongs.

1

As Pharmacia noted in its Opposition Brief (at 14 n.18), “complete preemption” is a subject
matter jurisdiction concept, to be distinguished from the substantive preemption issue at the heart
of Pharmacia’s claim.
2

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 7 of 16 PageID #: 920

Purported Savings Clause: PCB Counsel argue (at 4) that a purported “savings clause”
at the end of the “Citizens’ civil actions” provision of TSCA saves all tort claims from
preemption, arguing that the clause was intended to “specifically preserve[] the rights of
plaintiffs to seek damages under common-law theories.” See 15 U.S.C. § 2619(c)(3). That
argument is refuted by the clause’s plain text, which limits its application only to the section in
which it appears (§ 2619). 15 U.S.C. § 2619(c)(3) (“Nothing in this section shall restrict any
right which any person (or class of persons) may have under any statute or common law to seek
enforcement of this chapter or any rule or order under this chapter or to seek any other relief.”
(emphasis added)). By its own terms, the clause does not apply to the express preemption
provision, which is in an entirely different section (§ 2617) and which broadly prohibits any
instrumentality of the state from adopting PCB “requirements.” See Opposition Brief at 17-18 &
n.24 (explaining that, for decades, the term “requirements” when used in a preemption clause has
included state common law). The U.S. Supreme Court examined a very similar purported
“savings clause” in the Clean Water Act’s citizen suit provision in International Paper Co v.
Ouellette, 479 U.S. 481 (1987). The Court concluded that the savings clause there did not
impact federal preemption of Vermont state law because it “merely says that ‘[nothing] in this
section,’ i.e. the citizen suit provisions, shall affect an injured party’s right to seek relief under
state law; it does not purport to preclude pre-emption of state law by other provisions of the
Act.” Id. at 493 (second emphasis added).
Any conceivable doubt about this point is further dispelled by comparing § 2619(c)(3) to
text elsewhere in TSCA where Congress actually did intend to save state common law claims.
For example, in TSCA Subchapter II regarding asbestos only (and not PCBs), Congress
described with exacting clarity its intent to save common law claims from preemption:

3

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 8 of 16 PageID #: 921

•

“Nothing in this subchapter shall be construed, interpreted, or applied to preempt,
displace, or supplant any other State or Federal law, whether statutory or common.” 15
U.S.C. § 2649(a) (emphasis added)

•

“Nothing in this subchapter shall be construed or interpreted as preempting a State from
establishing any additional liability or more stringent requirements with respect to
asbestos in school buildings within such State.” Id. § 2649(c) (emphasis added)

•

“It is not the intent of Congress that this subchapter or rules, regulations, or orders
issued pursuant to this subchapter be interpreted as influencing, in either the plaintiff’s or
defendant’s favor, the disposition of any civil action for damages relating to asbestos.”
Id. § 2649(e) (emphasis added)

The difference between these asbestos provisions and § 2619(c)(3) is stark.

We know what

Congress says when it intends to save common law claims, and § 2619(c)(3) is not such a
clause.2
Text of Express Preemption Clause: Although the argument on page 5 of their brief is a
bit difficult to follow, PCB Counsel seem to say that EPA’s PCB rules do not trigger the express
preemption clause.

If so, that argument is refuted by TSCA’s plain text.

As Pharmacia

explained in detail in its Opposition Brief (at 15-18), by its terms TSCA’s express preemption
clause is triggered if “the Administrator prescribes a rule or order under section 2604 or 2605.”
15 U.S.C. § 2617(a)(2)(B). EPA’s PCB rules are promulgated under section 2605—in particular

2

As relevant here, the savings clause in § 2619(c)(3) only prevents courts from giving implied
preemptive effect to the federal cause of action created in § 2619(a). That could be important in
situations, unlike here, where TSCA’s express preemption clause does not apply. For example, a
state can request from EPA an exemption to express preemption that would permit the state to
deviate from EPA’s regulations. See 15 U.S.C. § 2617(b). Likewise, the federal cause of action
in § 2619(a) applies to subchapters of TSCA not governed by the express preemption clause, like
the asbestos subchapter mentioned above. See id. § 2619(a) (creating federal cause of action for
inter alia violations of “subchapter II or IV”). In these situations, the citizen’s suit provision
could not itself be interpreted to preempt state law. But where the express preemption clause
applies—like here—it is that clause that preempts state law and displaces all state remedies in
favor of those provided by federal law. See id. § 2617(a)(2)(B). Notably, the New York State
case relied upon by Individual Defendants, Leo v. Gen. Elec. Co., 538 N.Y.S.2d 844, 847 (N.Y.
App. Div. 1989), appears to have rejected an implied preemption argument; the court did not
even acknowledge, much less analyze, TSCA’s express preemption clause.
4

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 9 of 16 PageID #: 922

section 2605(e), which is plainly under “section 2604 or 2605.”

See id. § 2605(e) (titled

“Polychlorinated biphenyls,” specifically applicable to EPA rule-making authority over PCBs).
PCB Counsel also argue (at 5-6) that Pharmacia must show an actual conflict between
state tort law and EPA’s PCB rules for preemption to apply. Again, this is rebutted by the plain
language of TSCA’s preemption provision: Congress preempted “any requirement” imposed by
a state applicable to a “chemical substance or mixture” that EPA has regulated “under section
2604 or 2605” in order to “protect against a risk of injury to health or the environment.” See id.
§ 2617. Any requirement applicable to a chemical regulated under 2605, like state law duties of
care with respect to PCBs, is therefore preempted unless an exception to preemption applies.
PCB Counsel assert (at 5) that the preemption clause only “bars state requirements inconsistent
with rules promulgated by EPA,” implying that various types of differing state law requirements
might survive preemption. But that argument turns the preemption clause on its head. In order
to avoid preemption, the clause’s exception requires state law to be “identical” to the federal
requirement. 15 U.S.C. § 2617(a)(2)(B)(i). Thus, the clause preempts not only state law
requirements that are inconsistent with federal ones, but all state law requirements that are
not “the very same” or “exactly alike or equal.” See Webster’s New World Dictionary 669
(3d col. ed. 1988) (definition of “identical”). Individual Defendants do not even argue that their
tort claims match exactly EPA’s rules.3 Nor could they—they have never alleged that Pharmacia

3

Individual Defendants also attempt to dismiss the Fifth Circuit’s opinion in Rollins
Environmental Services (FS), Inc. v. Parish of St. James, 775 F.2d 627, 632-33 (5th Cir. 1985),
claiming (at 6) that the Fifth Circuit found preemption because “a local ordinance … conflicted
with a specific set of disposal regulations promulgated pursuant to § 2605.” But that’s not what
the Fifth Circuit said. The Court said that “EPA promulgated a comprehensive set of PCB
disposal regulations pursuant to its authority under section 2605,” that no exception or exemption
to preemption applied, and thus “all the conditions necessary to trigger the preemption provisions
of TOSCA have been met.” Id. at 633-64. Rather than compare the local ordinance to the
federal regulation to see if there is any conflict, the Court held that “Congress has explicitly
5

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 10 of 16 PageID #: 923

has violated EPA’s regulations. See Defs’ Mot. to Dismiss, Ex. B (state court complaint for
Bowman and Chambers). And, in any event, PCB Counsel’s claims are directly at odds with
EPA’s rules, which authorize numerous uses of PCBs and embody a federal determination that
those uses do “not present an unreasonable risk of injury to health or the environment,” 15
U.S.C. § 2605(e)(2)(B); see, e.g., 40 C.F.R. § 761.30(f) (authorizing use of carbonless copy
paper containing PCBs indefinitely); 44 Fed. Reg. 31514, 31535 (2012) (concluding that “risks
to human health or the environment” posed by carbonless copy paper “are negligible”); 40
C.F.R. § 761.30(a), (1) (authorizing continued uses of electrical transformers and capacitors
containing PCBs, subject to a number of regulatory requirements).
Legislative History: PCB Counsel point (at 7) to language in a Senate committee report
for a pending bill to amend TSCA, arguing that “Congress itself understands that TSCA does not
preempt tort claims.” Of course, a committee report for a bill that has not even passed the Senate
says nothing about what the entire Senate thinks, much less what the entire Congress thinks,
much less what the Congress that enacted TSCA decades ago thought. Even if the bill had
passed the Senate, and then passed the House after conference, and then been signed by the
President, the Supreme Court has time and time again warned that “the views of a subsequent
Congress form a hazardous basis for inferring the intent of an earlier one.” Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117-18 (1980) (quoting United States v.
Price, 361 U.S. 304, 313 (1960)).
PCB Counsel’s reliance on the Senate bill committee report is particularly puzzling
because there is a competing TSCA reform bill—that has actually passed the House—whose

mandated that TOSCA, and regulations promulgated under it by the EPA, preempt state and
local regulation of PCB disposal.” Id. at 635. In order words, the local ordinance—which there
did not even mention PCBs by name—was preempted because it intruded into the “field” of PCB
regulation controlled by EPA.
6

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 11 of 16 PageID #: 924

statutory language (as opposed to a committee report) makes clear that the House does
understand the currently existing version of TSCA to preempt PCB-related torts. The House
bill generally reduces the preemptive scope of TSCA for chemicals other than PCBs by
expressly altering the definition of “requirements” in 15 U.S.C. § 2617 to exclude common law
duties—indicating that the House understands TSCA’s current use of “requirements” to include
those claims. H.R. 2576, TSCA Modernization Act of 2015, § 7(b)(3). Critically, the House bill
specifically exempts PCBs from this change, ensuring that preemption of common law
requirements from EPA’s PCB rules would continue after passage of the new law. That bill
expressly states that:
Nothing in this Act, or the amendments made by this Act, shall be construed as changing
the preemptive effect of an action taken by the [EPA] Administrator prior to the date of
enactment of this Act or under section 6(e).
Id. § 7(c) (emphasis added). As discussed supra at 4-5, “section 6(e)” of TSCA (codified at 15
U.S.C. § 2605(e)) is the provision of TSCA authorizing EPA to promulgate PCB rules. Thus,
the House bill provision above would maintain the status quo with respect to preemption of torts
related to PCBs. In short, to the extent that any of this “post-enactment legislative history” could
conceivably be relevant to interpreting the existing version of TSCA, it cuts decidedly in
Pharmacia’s favor.
II.

ABSTENTION IS UNWARRANTED HERE
PCB Counsel raise four new arguments regarding abstention, all of which are mistaken.

Two of those arguments relate only to Individual Defendants Chambers and Bowman (which
PCB Counsel label “mandatory” abstention), the other two relate to all Individual Defendants
(permissive abstention).
Bowman/Chambers “Mandatory” Abstention: PCB Counsel cannot dispute that this
case and the state case involve different parties and issues, or that the state court has not
7

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 12 of 16 PageID #: 925

addressed the preemption issue here. These are critical issues for “mandatory” abstention. See
Opposition Br. at 26-27. Indeed, the Fifth Circuit has explained that the principal concern of
Texas Employers’ Insurance Ass’n v. Jackson, 862 F.2d 491 (5th Cir. 1988), is with using a
federal declaratory judgment to interfere with a pending state case about the same issues, such as
by effectively overruling the prior decision of the state court. See Royal Ins. Co. of Am. v.
Quinn-L Capital Corp., 3 F.3d 877, 866 (5th Cir. 1993) (“In Jackson, the federal suit offended
principles of comity and federalism because the plaintiff sought an overruling of a state court
decision on LHWCA preemption.” (emphasis added)). PCB Counsel never explain how this suit
will genuinely interfere with Individual Defendant Bowman and Chambers’s state court action,
and it is difficult to see how it could given that nothing has happened in that case. Here, “[t]he
only interference results from the potential for a race to judgment,” which is not enough to
warrant abstention. See id. at 886 & n.9 (“A race to judgment often is condoned.”).
PCB Counsel also incorrectly state (at 9) that Pharmacia “cites no case in which a
defendant has been allowed to obtain a declaratory judgment of nonliability as to existing or
threatened state court tort claims.”

But throughout its Opposition Brief, Pharmacia cited

Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383 (5th Cir. 2003), in which the Fifth Circuit
permitted a declaratory plaintiff to seek to do exactly that. There, the Fifth Circuit reversed the
district court’s decision to abstain because the declaratory plaintiff properly “asked the federal
court to decide in a single declaratory judgment action four legal issues asserted to be common”
to pending and threatened claims, including preemption, in order “[t]o avoid having to litigate
numerous anticipated suits in different state courts.” Id. at 386-87. Sherwin-Williams, like
Travelers Insurance Co. v. Louisiana Farm Bureau Federation, 996 F.2d 774 (5th Cir. 1993),

8

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 13 of 16 PageID #: 926

demonstrates the Fifth Circuit’s approval of using the declaratory judgment vehicle to avoid a
multiplicity of suits.4
PCB Counsel dismiss (at 9) Pharmacia’s use of a declaratory judgment to avoid such a
multiplicity of suits, claiming that if this use of a declaratory judgment were proper the “asbestos
companies in this country [which] have been sued tens of thousands of times for decades” would
have tried to obtain one long ago. What PCB Counsel fail to note is that there is an express
statutory reason that this is so. TSCA expressly excludes asbestos claims from the scope of
its preemption, supra at 3-4, so there would have been no basis for the asbestos companies
to sue for a federal declaratory judgment.
Permissive Abstention: PCB Counsel’s Reply Brief does not challenge Pharmacia’s
substantive analysis under either the Colorado River or Brillhart standard, but instead argues
only about which standard applies. Without citation to a single case, PCB Counsel claim (at 10)
that Colorado River does not apply because Pharmacia’s coercive claims are against the Insurer
Defendants, rather than the Individual Defendants. But unlike the approach used in some other
circuits, the Fifth Circuit uses a “bright-line” test.5 This Circuit looks to the entire “action” to
see if there is a claim for coercive relief and, if so, applies Colorado River to the action. See
New Eng. Ins. Co v. Barnett, 561 F.3d 392, 394-395 (5th Cir. 2009) (“However, when an action

4

As Pharmacia indicated in its Opposition Brief (at 30 n.28), if the Court finds that this existing
suit is insufficiently multitudinous to prevent abstention, Pharmacia respectfully requests leave to
amend its Complaint to assert claims against the 57 other Texas individuals currently suing
Pharmacia over these same issues.
5

See, e.g., R.R. St. & Co. v. Vulcan Materials Co., 569 F.3d 711, 715 (7th Cir. 2009) (surveying
various approaches used by the circuits and concluding that: “The Fifth Circuit has adopted a
strict bright-line approach: When an action includes a claim for declaratory relief along with
any non-frivolous claim for coercive relief, Wilton/Brillhart abstention is completely
inapplicable to all claims, and the Colorado River doctrine governs instead.” (emphasis added));
A. Andrews & K. Holmstrom, The Possibility of Parallel Litigation: Federal Abstention and
Declaratory Judgment Actions, For the Defense, Sept. 2009, at 29, 32 (same).
9

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 14 of 16 PageID #: 927

involves coercive relief, the district court must apply the abstention standard set forth in
Colorado River.” (emphasis added)); Kelly Inv., Inc. v. Cont’l Common Corp., 315 F.3d 494, 497
n.4 (5th Cir. 2002) (similar).
Finally, PCB Counsel suggest (at 10) that the Fifth Circuit’s bright-line test does not
apply because Pharmacia’s insurance claims “are a contrivance.” PCB Counsel do not argue that
those claims are “frivolous” as a legal matter, so they must be saying the claims were made
“solely to avoid application of the Brillhart standard.” Black Sea Inv., Ltd. v. United Heritage
Corp., 204 F.3d 647, 652 (5th Cir. 2000) (setting forth the only exceptions to the bright-line rule)
(emphasis added). This is a bold accusation, given that Pharmacia has named 19 insurers as
defendants and has alleged that they owe Pharmacia coverage obligations on specificallyidentified insurance policies going back 50 years. See First Amended Complaint at ¶¶ 61-76.
The only basis provided for PCB Counsel’s fanciful theory is that Pharmacia agreed to extend
the deadlines for Insurer Defendants to answer. See Reply Br. at 2, 10. Pharmacia decided that
it was not unreasonable to grant Insurer Defendants’ extension requests given that the extent to
which they are obligated to provide coverage to Pharmacia could be directly impacted by this
Court’s declaratory judgment on preemption. Specifically, if TSCA preempts PCB-related tort
claims, then Pharmacia’s dispute with Insurer Defendants could be drastically reduced in scale.
By contrast, if Pharmacia is wrong about preemption, the extent of Pharmacia’s coverage claim
could increase significantly. These material differences could directly bear on the manner in
which Pharmacia and the Insurer Defendants litigate or otherwise resolve the insurance dispute.
Attempting to structure a case in an efficient way does not make it a “contrivance.”
CONCLUSION
Individual Defendants’ motion to dismiss or abstain should be denied.

10

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 15 of 16 PageID #: 928

Dated: November 19, 2015

MCKOOL SMITH, P.C.
By: /s/ Sam Baxter
Sam Baxter
Texas State Bar No. 01938000
sbaxter@mckoolsmith.com
Jennifer Truelove
Texas State Bar No. 24012906
jtruelove@mckoolsmith.com
104 E. Houston Street, Suite 300
P.O. Box O
Marshall, Texas 75670
Telephone: (903) 923-9000
Facsimile: (903) 923-9099

BECK REDDEN LLP
David M. Gunn
dgunn@beckredden.com
Chad Flores
cflores@beckredden.com
1221 McKinney Street, Suite 4500
Houston, Texas 77010
Telephone: (713) 951-6290
Facsimile: (713) 951-3720
THOMPSON COBURN LLP
John Musgrave
jmusgrave@thompsoncoburn.com
Elizabeth Blackwell
eblackwell@thompsoncoburn.com
One US Bank Plaza
St. Louis, Missouri 63101
Telephone: (314) 552-6000
Facsimile: (314) 552-7000

PERKINS COIE LLP
Robert P. Jacobs
RPJacobs@perkinscoie.com
700 Thirteenth Street, NW, Suite 600
Washington, DC 20005
Telephone: (202) 654-6210
Facsimile: (202) 654-9685
Attorneys for Plaintiff
11

 Case 2:15-cv-00920-RWS-RSP Document 42 Filed 11/19/15 Page 16 of 16 PageID #: 929

CERTIFICATE OF SERVICE
I hereby certify that on November 19, 2015 a copy of the foregoing Opposition was filed
electronically with the Clerk of the Court using CM/ECF system. Notice of this filing will be
sent by operation of the Court electronic filing system to all parties of record.
____/s/ Jennifer Truelove___________
Jennifer Truelove

1