In a huge victory for landowners over the oil and gas industry, two families in Dimock, Pennsylvania were awarded $4.2 million in a lawsuit over water contamination from shale gas drilling. Dimock is the town made famous for its flammable water in the film Gasland.
Houston-based Cabot Oil and Gas Corporation, the defendant in the suit, had denied that it was responsible for the contamination. They had settled a similar lawsuit in 2012 with 40 other residents on the same road, but, as is usually the case in this kind of lawsuit, the settlement had included a “non-disparagement” clause that prevents plaintiffs from speaking publicly about the case.
But two families who lived on the same road as those who settled held out from the settlement and continued to a jury trial, which was completed today.
Cabot Oil said it will appeal, accusing the jury of ignoring “overwhelming scientific and factual evidence that Cabot acted as a prudent operator in conducting its operations.” Cabot had contended that the methane occurring in families’ wells was naturally occurring.
The lawsuit was something of a David and Goliath affair. After their neighbors had settled, the two families were, for a time, forced to represent themselves because they couldn’t find an attorney willing to take on the suit. Ultimately they were represented by solo practitioner Leslie Lewis and attorney Elisabeth Radow against a team of litigators and attorneys from Norton Rose Fulbright, a London-based law firm which in 2014 was the seventh highest-grossing law firm in the world.
The Ely family will receive $2.75 million and the Hubert family $1.49 million. The judgment was limited by the court, which had previously ruled that the plaintiffs were not permitted to pursue Cabot for any harms done to their health, but only for damages to property and “personal nuisance.”
“This is a huge victory for the people of Dimock, but it’s also a sharp rebuke to the Obama administration for failing to fully investigate threats posed by fracking and dangerous drilling to water supplies in Pennsylvania and across the country,” said Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute. “Because of the EPA’s disturbing history of delay and denial, it took a federal jury to set the record straight about the natural gas industry’s toxic threat to our water.”
Congrats to the Hubert and Ely families. Their courage moves the fight against irresponsible oil and gas companies to a new level, and paves the way for future homeowners to protect themselves.
Update: April 4, 2017
Legal cases take a long time to resolve. While this is a setback, there will be a new trial.
From the Norton Rose Fulbright Fracking Blog:
In a win for industry, a Pennsylvania federal judge on Friday vacated a controversial fracking verdict in the highly publicized case Ely v. Cabot Oil and Gas Corp. The verdict was against the great weight of the evidence and shaded by the plaintiffs’ attorney’s missteps, said the court in its decision.
Last March, a Pennsylvania jury awarded the plaintiffs in the case $4.24 million for loss of the use and enjoyment of their property, namely their water supply, which injury the plaintiffs alleged stemmed from the defendant’s fracking operations in the surrounding area. On Friday, the court set aside that award as “extraordinarily high” and “by any measure excessive.”
The court cast into doubt too the viability of the plaintiffs’ case generally, which centers on the plaintiffs’ assertion that their water supply was contaminated when impurities, like methane, released by the defendant’s drilling operations compromised their wells. The court noted the very narrow grounds on which the case was allowed to go to trial—only two of the plaintiffs’ many claims survived pre-trial motions (negligence and private nuisance), and only private nuisance reached the jury—and noted that despite this narrow road to recovery, plaintiffs persisted in presenting the case not as it was, but as they wished it to be, a “broadside attack” on the defendant’s oil and gas activities.
Attempting to overcome the “limited” nature of evidence in support of their nuisance claim, consisting mainly of speculative expert opinions linking drilling and the plaintiffs’ aquifers, plaintiffs in their presentation appealed to outside evidence, which the court had excluded by in limine pretrial rulings. In referencing excluded evidence, the plaintiffs “strayed into forbidden territory,” drawing objections from the defendant and ire from the court. The plaintiffs’ conduct “marred the trial from opening to close,” and the defendant’s objections and the court’s interventions encouraged the jury to “speculate that they were not receiving the whole story and that evidence was being improperly withheld from them.” This, the court found, was unfairly prejudicial to the defendant.
The court, although unwilling to render judgment in favor of the defendant outright, in light of what it perceived as some evidence that the defendant contributed to the conditions from which the plaintiffs suffered, ordered a new trial in the case.
Before a new trial can occur, though, the parties must mediate the dispute in front of another federal judge.