Dimock Plaintiffs Awarded $4.25 Million in Lawsuit Against Driller

From the Pittsburgh Post-Gazette:

A federal jury on Thursday found Cabot Oil and Gas Corp. responsible for contaminating two Susquehanna County water wells through its natural gas drilling operations and awarded the families a total of $4.24 million. 

The Ely and Hubert families of Dimock Township were the last plaintiffs in a high-profile case that began in 2009 and originally included 44 of the rural town’s residents who claimed shoddy Cabot wells drilled early in the Marcellus Shale gas boom allowed methane and other constituents to migrate into their drinking water. 

Cabot maintains that anything tainting the water supplies is there naturally or comes from sources other than its operations. 

The jury awarded Nolen Scott Ely and Monica Marta-Ely each $1.3 million, plus $50,000 for each of their three children. The jury awarded Ray and Victoria Hubert each $720,000, plus $50,000 for their daughter.

StateImpact Pennsylvania captured a quote from Gasland director Josh Fox:

The publicity surrounding the case of Dimock’s water helped touch off a global anti-fracking movement. 

Filmmaker Josh Fox brought attention to Dimock’s struggle with Cabot Oil and Gas in the documentary Gasland. 

“The gas industry and the frackers went down in the flames of Dimock’s water today,” he told StateImpact. “The sense of relief and joy and vindication, it’s beyond words.”

Some who were in attendance and reporting on the trial on a daily basis were shocked at the jury's decision.  From Natural Gas Now:

There’s something more, though, that defies explanation. It is the size of these ridiculous damage awards. Let me, for purposes of perspective, repeat what I noted the judge said in dispensing with the negligence claim (emphasis added this time): 

"…I carefully studied the testimony of Mr. Ely which was the only testimony that went to these issues in my estimation and only testimony identified by any of the parties relating to these issues. And, carefully studying that testimony I found no evidence that would allow a jury to reach any sort of judgment on the pre-injury value of this property. Indeed, despite efforts by plaintiff’s counsel to elicit such testimony, my reading of the transcript reveals Mr. Ely declined to give a valuation to the property other than to say that property values in Dimock were low and more specificity is needed for a jury it to make an informed judgment in this regard… 

We have no evidence from which I believe a jury could reach in assessment of either value before the jury or any diminution in value after the alleged injuries which took place in a time frame of 2008 through 2009. 

The only evidence of valuation that was presented in this case by the plaintiffs was valuation evidence that gave a value to improvements on the property improvements that were completed long after the alleged injury and, specifically, the construction of a 26-room 7,000 square foot residence on the property…Construction… had begun by the time this lawsuit had been filed, but gone only as far as excavation and the placement of footers. It seems clear to me the undisputed evidence is that the major construction in this case, that 7,000 square foot residence, took place years after the alleged injury to the property. 

And, with respect to this property, the only evidence that I have received from the plaintiffs is evidence that indicates a dramatic increase in the value of the property. 

…Mr. Ely represented that he had been told by contractors that the value of the residence that he was building, a residence whose construction stretched into 2011…was approximately $200 to $250 per square foot. Taking that number and multiplying it by the 7,000 square feet, which is the only number that I’ve been given in terms of the size of the property, would place a value on that residence of $1.4 million at least.Mr. Ely also testified that the large estate in a partially completed state had a value of between $500,000 and $600,000, and he testified briefly that he had invested some $700,000 in the construction of the property. 

But all of these numbers, all these valuations come well after the time when it is alleged that the plaintiffs first raised the injury…as early as the summer of 2008… 

I also find that there was ample opportunity for the plaintiffs to develop both of these valuations. There was certainly an opportunity to do it at the time of this complaint…filed in November, 2009 and there was ample opportunity to develop this evidence in the intervening six and a half years over this litigation. Yet, the plaintiffs have not provided evidence… "

Now, think about that in the context of the judge’s later instructions that the nuisance award could “not include damages for mental or emotional distress or for replacement water costs.” There was, in other words, little or no basis for any award. Property value had increased and given the fact Ely had built after complaining about the water surely proved he hadn’t been discouraged from investing. (Or, was he was investing in a lawsuit by increasing his damages after the fact?) Moreover, he wasn’t able to claim distress or water replacement costs. So, what’s left? Certainly nothing approaching the damage awards reached here. 

The awards and the verdict, in fact, appear be very challengeable for that reason. Cabot already has motions on file with the court challenging the sufficiency of plaintiffs evidence to support the nuisance claim, the court having previously granted motions to dismiss the property damage and personal injury ( health) claims. Cabot had also asked the court to dismiss the nuisance claim due to lack of evidence that there was a pathway through the subsurface for gas to travel from Cabot’s two wells to the Ely and Hubert water wells, but the judge demurred at that point, probably hoping the jury would sort it out. They didn’t and the case is far from over.

FrackNation director Phelim McAleer mused on how this verdict might affect fracking in the future:

Q. So this proves fracking with all those chemicals is harmful and should be banned - doesn't it? 

A. Interestingly fracking was rarely mentioned during the 12 days of evidence and when it was it was immediately shut down. It was made very clear that this case was not about fracking. The judge emphasized it to the jury and even the plaintiffs lawyers emphasized it in her opening speech: “This is not a case — this is not a case about toxic materials ending up in the water,” she told the jury. "We do not have proof of that. We don't have proof of that. This is not about fracking fluid appearing in the water. Hydraulic fracturing materials, we don't have proof of that,” 

Q. So what were the two families awarded all that money for? 

A. The families were allowed to allege that Cabot's drilling - not their fracking - negatively impacted their property values and created a nuisance that meant they could not have full enjoyment of their properties. The judge dismissed the claim that the drilling caused a decrease in their property values. In fact he said the plaintiffs showed the value of their properties increased since the drilling. However the jury then found that Cabot has created a nuisance to their enjoyment of their property. This claim largely focused on the impact on their water of gas drilling.

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