Now that the excitement has died down after news broke last Friday that a federal judge has ordered a retrial in last year’s highly-publicized Dimock nuisance case and thrown out a jury’s multi-million dollar award to plaintiffs, EID has had the opportunity to read through Judge Martin Carlson’s entire ruling. And upon first read, it’s abundantly clear Judge Carlson not only oversaw last year’s proceedings, but was also not impressed with the plaintiffs’ actions and the evidence presented to the jury in his courtroom.
Here’s some of the key takeaways from Judge Carlson’s ruling:
FACT: The water problems in the plaintiffs’ wells began before Cabot drilled the Gesford wells.
As EID reported last year, the problems the plaintiffs claimed were caused by Cabot Oil and Gas started months prior to any development by the company. Judge Carlson spends a large portion of his ruling discussing this fact:
- “The aggregate of this repeated trespass into prohibited areas was compounded during a highly irregular closing argument, which ultimately created the impression for the jury that Cabot must have been responsible for all of the plaintiffs’ alleged water problems – problems that began before the Gesford wells were drilled, a fact that we now know because the plaintiffs stipulated it before trial.” (page 11, emphasis added)
- “As the Court noted previously, each of the adult plaintiffs in this case testified at the trial that their water began experiencing problems that summer, and in any event prior to September 25, 2008 – the date that the plaintiffs’ agreed is the date on which Cabot started to drill the two wells that are claimed to have caused damage to the plaintiffs’ property. Moreover, Dr. Ingraffea testified that the gas that impacted the plaintiffs’ water wells came from a depth of 1500’ – something that did not happen until November 12 or 13, 2008, during the drilling of the Gesford 3S well.” (page 34, emphasis added)
- “…given that the uncontradicted evidence showed that the initial impact to the plaintiffs’ water begin before the alleged cause, it is hard to explain from the evidence at trial how Cabot’s drilling – even if negligent – could be deemed the sole or exclusive cause of the plaintiffs’ nuisance and interfered with their use and enjoyment of property.” (page 35, emphasis added)
In fact, Judge Carlson explained that, “…evidence showed that Mr. Ely himself had been able to light his water on fire even before gas drilling operations commenced in the area.”
Judge Carlson goes into the matter deeper on page 32, explaining that the plaintiffs persistently tried “to distance themselves from or disavow their binding stipulation” and “time and again either evaded this issue, attempted to impeach their own stipulation, or endeavored to provide some alternative explanation for their own prior representations” despite acknowledging “they experienced problems with the water in their wells at least a month before Cabot started to drill on the Gesford pads” He continues saying that “their own statements and testimonywhich showed that some of the very problems that they claim Cabot caused by its drilling activity occurred before Cabot broke ground on either well.”
Finally, he explains that even though the plaintiffs did provide “limited testimony” that the nearby drilling could have made the pre-existing problems worse, “they did not proceed on this theory at trial, and thus created profound confusion regarding the nature of their claims.”
So not only did all of the plaintiffs admit that they had problems prior to the nearby drilling, they also only vaguely attempted to show this drilling could have worsened the problems, essentially doing nothing more than creating even more confusion regarding their claims.
FACT: Anti-fracking movement’s top “experts” had to admit to speculating without having the facts to back their theories.
The plaintiffs had two “experts” testify as to the hydrology, geology and potential for contamination of their wells, “experts” that Judge Carlson noted “offered opinion testimony that came perilously close to speculation and at best were inferences that had weak factual support.”
The most notable of the two “experts” was anti-fracking activist Tony Ingraffea, who admitted during the trial to being a “self admitted advocate” against drilling. In what should be a major blow to anti-fracking activists, Judge Carlson pinned a substantial amount of blame on the need for a retrial on Ingraffea’s testimony, explaining:
“However, as will be discussed later, the weakness in his testimony contributes substantially to the Court’s finding that a new trial is necessary because the verdict was contrary to the great weight of the evidence that was presented.” (page 28, emphasis added)
“Dr. Ingraffea also conceded that he had no direct proof of this theory of gas migration. In fact, at one juncture, Dr. Ingraffea agreed with Cabot’s counsel that his opinion could be referred to as speculative. This admission is nearly fatal to this expert testimony, particularly when coupled with (Paul) Rubin’s limited opinion…” (page 27, emphasis added)
Further, Judge Carlson explains that Ingraffea’s testimony was “glaringly limited” because “he was not qualified to testify about hydrology or hydrogeology.” Instead his entire testimony was reliant on that of Paul Rubin, the other “expert” for the plaintiffs, who’s evidence in his testimony was “badly deficient, and thus further renders Dr. Ingraffea’s testimony to be of marginal value.”
As for Ingraffea’s theory of methane migration, Judge Carlson notes that it “suffered from some glaring weaknesses, chief among them that some aspects of it were simply speculative,” and he goes on to completely derail the theory:
“This theory is difficult enough to believe on its own, but especially so when considered against evidence which strongly suggested these water wells were not fed by a single source, and were not even connected to one another. Dr. Ingraffea conceded that this multi-part theory was based substantially upon speculation, and that he had no proof to support it.” (page 37)
In fact, expert testimony on behalf of Cabot showed that Ingraffea’s theory couldn’t have even been possible, as Judge Carlson explains,
“Dr. Saba testified at length regarding his detailed testing of the gases found in the plaintiffs’ water wells and concluded to a reasonable degree of scientific certainty that it did not match the gas at the 1500’ level that Dr. Ingraffea stated was impacting the plaintiffs’ water supply. The plaintiffs offered essentially no rejoinder to this scientific testimony that discredited the plaintiffs’ experts’ own theory regarding causation.” (page 40, emphasis added)
Ingraffea’s testimony didn’t hold up to scientific scrutiny from either of the two experts that testified for Cabot, actually, in large part because Ingraffea looked at only a limited amount of information to jump to conclusions, while Dr. Hilbert used all of the resources available.
“In reaching his conclusions, Dr. Hilbert testified that he had relied up his review of well histories, morning reports, invoices, and other documents that exist in the well files, whereas Dr. Ingraffea testified that his admittedly speculative opinion was drawn from the well histories alone.” (page 42)“…there was a substantial contrast in the testimony offered by Drs. Hilbert and Ingraffea, and particularly on the depth of information that each expert relied upon in offering their respective opinions. As with the evidence on causation, the plaintiffs’ evidence regarding Cabot’s allegedly negligent drilling activity was weak and lacked rigor in comparison with that offered by Dr. Hilbert in response.” (page 43)
This saga is a textbook example of how the anti-fracking crowd gets a rumor of something occurring and runs with it in a shameless effort to advance an agenda of stopping oil and gas development across the country.
Dimock has long been said to be about fracking — despite the history of natural-occurring methane in the area and — in the case of the remaining plaintiffs with nuisance claims — an admittance that problems began “before Cabot broke ground on either well.” Self-proclaimed experts like Ingraffea are quoted in media and touted as “absolutely objective” researchers or peer-reviewers, all-the-while peddling theories that have no scientific basis, as Judge Carlson’s extensive comments further confirm.
And who suffers? The people of Dimock, who have spent years trying to help people see the gross mischaracterization of their community that started with Gasland. Those mischaracterizations continue because people like the plaintiffs continue to try to cash in on this illusion, even when their “hardships,” according to Judge Carlson, “were likely unnecessary since the condition of the plaintiffs’ water had improved over time and the plaintiffs had been offered, and refused, mitigation systems.”
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