New Trial Ordered Over Bad Evidence In Cabot Fracking Case by Ryan Boysen, March 31, 2017, Law360
Last year’s upset trial victory by a solo practitioner facing off against megafirm Norton Rose Fulbright in a yearslong groundwater contamination suit may have been too good to be true after all, with a Pennsylvania federal judge on Friday vacating the jury’s $4 million award against Cabot Oil & Gas Corp. and ordering a new trial for lack of evidence and improper courtroom tactics.
Judge Martin C. Carlson acknowledged that the two families suing Cabot for allegedly contaminating their wells through its fracking activity had faced…
Judge cancels jury award to Dimock families; orders new trial by Jon Hurdle and Susan Phillips, March 31, 2017, State Impact
… The judge said the evidence presented during the three-week trial was often discredited or rebutted, and was “notably lacking” in respect to damages. He said the award “bore no discernible relationship” to the evidence, which he said was “at best limited.”
Even if the court were to find that the jury’s verdict of liability should stand, the damages could not withstand “even passing scrutiny,” he said. …
Victoria Switzer, a Dimock resident who had also sued Cabot but had settled with the company prior to trial, said she was “shocked” and “heartbroken” by the judge’s decision to vacate the jury’s verdict.
She accused the judge of having a close relationship with Cabot.
“There was an awful lot of coziness between him and the Cabot people,” she said in an interview.
Switzer said the plaintiffs’ case had been hobbled by the fact that they were only allowed to refer to one gas well as evidence for their claim that gas drilling had contaminated their water.
Much of the evidence of contamination was not allowed to be presented to the jury, including a consent decree issued by the Pennsylvania Department of Environmental Protection, which found Cabot responsible for methane migration due to faulty well construction.
Wenonah Hauter, executive director of the environmental group Food & Water Watch, said the judge’s decision is another attack on residents who she said have been hurt by fracking.
“These residents, and thousands of others, have been abandoned by state environmental regulators, politicians, and a governor who promised to help them,” Hauter said in a statement. [Emphasis added]
Judge Throws Out $4.2 Million Verdict against Cabot Oil and Gas by WNEP.com, March 31, 2017
A jury’s verdict ordering a natural gas drilling company to pay two families more than $4 million dollars has been thrown out.
This case involves an eight-year-long saga of water contamination concerns in Susquehanna County. [Encana broke the law and fractured Rosebud’s drinking water aquifers 13 years ago!]
Two families from Dimock will not get the $4.24 million a jury awarded them last year.
A federal judge ruled the families must either try to reach a settlement or go to trial again.
… The Elys and Huberts took Cabot Oil and Gas to court, claiming its drilling near their homes ruined their water.
“Seven years are over, everything’s behind us, we don’t have to deal with them anymore, hopefully,” said members of the family after the jury award last year.
But they’ve had to deal with this case through the appeal and everything is not behind them now.
In very strong language, the federal judge threw out the verdict that gave those families all that money.
This all started eight years ago in Dimock with a story that got national attention. 44 people sued Cabot for contaminating water. A number of them settled.
Now a judge said they must resume settlement talks or go to trial again, a big change after Scott Ely said this after winning last year.
“They did something wrong, that was the whole point of getting it into the courtroom. We’re standing up for our rights. We did it in solidarity,” Ely said. “We walked in our courtroom with our heads held high and no matter what, we were going to walk out with our heads held high.”
Cabot issued a statement saying it felt confident that after a review of the scientific evidence and a review of the attorneys’ conduct, the flaws in the verdict would be understood.
Leslie Lewis, the attorney for the Dimock families said, “The decision to throw out a unanimous jury decision is another dark chapter for the victims of water contamination due to shale gas extraction. The judge appears to have ignored our expert testimony. It is not clear to me why the court required an entire year to essentially rubber-stamp the companies’ position that they were somehow robbed of a fair trial. There will be justice for these families.”
Scott Ely, a homeowner and plaintiff in the case, also said “The judge heard the same case that the jury heard and the jury was unanimous. How can he take it upon himself to set aside their verdict. It’s outrageous.” [Emphasis added]
Judge reverses ruling for two PA families in water contamination case by Emily DeVito, Mar 31, 2017, WBNG.com
Two families from Dimock, Pennsylvania will not receive the $4.24 million a jury awarded them last year over water contamination.
On Friday, a jury’s verdict from last year, that ordered Cabot Oil and Gas to pay the families, was overturned.
The Ely and Hubert families from Susquehanna County took Cabot Oil and Gas to court, claiming its drilling near their homes ruined their water.
A federal judge said irregularities were present in testimony during the trial that he called “troubling.”
He also said there were missteps by attorneys in the jury’s presence, saying that $4.2 million in damages wasn’t a justified amount for the Cabot to pay.
“The decision to throw out a unanimous jury decision is another dark chapter for the victims of water contamination due to shale gas extraction,” Leslie Lewis, the attorney for the Dimock families, said. “The judge appears to have ignored our expert testimony. It is not clear to me why the court required an entire year to essentially rubber-stamp the companies’ position that they were somehow robbed of a fair trial. There will be justice for these families.”
Cabot issued a statement saying it felt confident that after a review of the scientific evidence and a review of the attorneys’ conduct, the flaws in the verdict would be understood. [Emphasis added]
Judge throws out $4M tainted-water award to Dimock shale-gas families by Andrew Maykuth, March 31, 2017, philly.com
A federal judge on Friday threw out a jury’s award of $4.24 million for two Dimock, Pa., families who claimed that their water was contaminated by a Marcellus Shale gas driller and ordered a new trial.
U.S. Magistrate Judge Martin C. Carlson set aside the verdict by an eight-member jury that sat in Scranton, saying the evidence “was spare, sometimes contradictory, frequently rebutted by other scientific expert testimony, and relied in some measure upon tenuous inferences.”
The jury found that Cabot Oil & Gas Corp.’s drilling was negligent and created a nuisance for the families of Scott Ely and Monica Marta-Ely and Ray and Victoria Hubert. It awarded the Elys $2.75 million and the Huberts $1.49 million.
Cabot maintained that its drilling was not responsible for the elevated level of methane in the families’ water wells, and asked Carlson to reverse the judgment and rule in its favor.
Carlson instead ordered a new trial if Cabot and the families are unable to negotiate a settlement.
The company welcomed Carlson’s decision.
“Cabot felt confident that once a thorough review of the overwhelming scientific evidence and a full legal analysis of the conduct of the plaintiffs’ counsel was conducted, the flaws in the verdict would be understood,” George Stark, a Cabot spokesman, said in a statement Friday.
The attorney for the families, Leslie Lewis of New York City, called the decision “another dark chapter for the victims of oil and gas contamination.”
Lewis said the judge appeared to have ignored the plaintiffs’ arguments.
“It is not clear to me why the court required an entire year to essentially rubber-stamp defendants’ position that they were somehow robbed of a fair trial, ” she said.
The Elys and Huberts were among a group of more than 40 Dimock residents who sued Cabot in 2009, claiming that the Houston gas producer’s rush to drill the Marcellus Shale had polluted their water wells.
All but the Elys and Huberts settled in 2012 after tests showed the wells contained elevated levels of methane but none of the chemicals associated with gas drilling.
In a 58-page memorandum, Carlson said he did not lightly take the step to void the unanimous judgment of a jury that sat through nearly three weeks of trial.
He cited the “substantial and varied weaknesses” in the plaintiffs’ case, along with “myriad examples of inappropriate conduct that repeatedly occurred in the jury’s presence and may have colored the outcome of this case.”
The judge also said the amount of the jury’s award was unjustified.
“The jury’s award of more than $4 million in damages for private nuisance bore no discernible relationship to the evidence, which was at best limited; and even were the court to find that the jury’s verdict of liability should stand, the court can perceive no way in which the jury’s damages award could withstand even passing scrutiny regardless of the applicable standard of review,” he said.
During the trial, Cabot complained about Lewis’ conduct, and Carlson cited the attorney’s “repeated testimony and argument” that he said was prejudicial to Cabot. He said her closing argument “risked stoking juror prejudice and confusion and, in our view, materially contributed to the jury’s confusion.”
Dimock was the focus of the Oscar-nominated documentary Gasland, lengthy investigations by federal and state environmental agencies, and protests by anti-drilling activists after residents complained of water contamination when Cabot ramped up drilling in 2008.
During the trial, the plaintiffs did not attempt to establish that chemicals from hydraulic fracturing got into their water, or that the drilling caused illness, but they maintained that the methane contamination disrupted their lives and deprived them of the enjoyment of their property.
Lewis portrayed Cabot’s expert witnesses as biased and the families’ claims as a David vs. Goliath story.
The families claimed that Cabot’s drilling and poor well construction caused stray gas to migrate underground into their wells. Methane itself is not poisonous, but at elevated levels it is explosive.
Cabot suggested there was a long history in Dimock of methane naturally appearing in wells. It also maintained that the two gas wells nearest the Ely and Hubert homes were not drilled until several months after the residents first complained about stray gas.
There was testimony that Cabot had installed methane-venting equipment and treatment systems on some homes, which may have suggested to the jury that the company took some responsibility for the stray gas. Cabot agreed to install the systems as part of a settlement with Pennsylvania environmental regulators.
The two families declined the treatment systems, saying they did not think they would work.
[Very wise of the two families. Explosive water at the well head is still a danger.
Professional methane venting systems do not remove the explosive risk, as Bruce Jack and two industry gas in water testers painfully learned in May 2006:
Bruce Jack of Spirit River Alberta in hospital the day his methane and ethane contaminated well water exploded – with professional venting installed, as recommended by Alberta Environment!]
They testified that they had their own water delivered, and that their children shared baths for six years to conserve water.
At trial, the judge dismissed a property-damage claim against Cabot because the plaintiffs introduced no evidence that their property values had been affected. Ely testified that he had spent $700,000 to build his 7,000-square-foot home — after the water went bad.
Carlson cited “serious and troubling irregularities in the testimony.” He said “the uncontradicted evidence” showed the impact on the plaintiffs’ water began before drilling started, so it was hard to blame the drilling, even if negligent, as “the sole or exclusive cause” of the nuisance. [Emphasis added]
Judge overturns $4.24M award in alleged fracking pollution case by Timothy Cama, March 31, 2017, The Hill
A federal judge Friday overturned a $4.24 million jury award in a landmark case regarding alleged groundwater pollution from hydraulic fracturing.
Judge Martin Carlson wrote that the evidence presented at last year’s jury trial by a pair of families in Dimock, Pa., “was spare, sometimes contradictory, frequently rebutted by other scientific expert testimony, and relied in some measure upon tenuous inferences.”
He said there were multiple “weaknesses” in the case, along with “serious and troubling irregularities in the testimony and presentation of the plaintiffs’ case — including repeated and regrettable missteps by counsel in the jury’s presence,” necessitating that Carlson vacate the jury award against Cabot Oil and Gas Co.
Carlson declined Cabot’s request to rule completely in its favor, and instead ordered a new federal trial.
Scott Ely and Monica Marta-Ely and Ray and Victoria Hubert sued Cabot in 2009, claiming that Cabot’s fracking and drilling for natural gas near their homes caused methane to enter their water wells.
… Cabot and the gas industry have long held that fracking and drilling are safe and not responsible for widespread water contamination. The company said it did not cause the methane in the water wells.
Carlson recognized that overturning a jury award is rare, particularly when it is unanimous.
“We do not take this step lightly, and we recognize the significance of voiding the judgment of a panel of jurors who sat through nearly three weeks of trial and reached a unanimous verdict,” he wrote.
But the weaknesses in the case and inappropriate conduct of the plaintiffs’ attorney necessitated such a step, Carlson said.
Cabot welcomed the judge’s decision.
“Cabot is pleased with Judge Carlson’s decision to vacate the verdict and the award in its entirety,” said spokesman George Stark. “Cabot felt confident that once a thorough review of the overwhelming scientific evidence and a full legal analysis of the conduct of the plaintiff’s counsel was conducted, the flaws in the verdict would be understood.”
The original 2009 case included more than 40 Dimock residents. All but the Elys and Huberts settled with Cabot out of court. [Emphasis added]
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