Plaintiffs Continue to Struggle as Judge Throws Out Negligence Claim in Dimock Lawsuit

From Natural Gas Now:

The biggest news, of course, was the unsurprising decision of Judge Carlson to throw out the negligence claim; one of only two claims left from those originally made by the Dimock plaintiffs, the bulk of which had been dismissed before the trial began. Carlson’s decision yesterday now leaves but one claim for the jury to decide upon; a claim of nuisance.  The judge rejected the negligence claim for one very simple reason; the plaintiffs offered no evidence of damages, a point he made over and over again. He seemed to excuse the plaintiffs’ attorneys for not delivering the goods and, rather, blamed Scott Ely for not producing evidence in response to their questions: 

…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… 

It was a pretty complete putdown from a common sense perspective and, though Carlson gave the attorneys some cover by placing the burden for delivering the evidence on Scott Ely, there’s no mistaking the subliminal message; that the case was poorly prepared and presented and there is no one to blame for that other than the plaintiffs’ legal counsel, who had the obligation to lead them properly through the case. Having, myself, been in involved as an expert witness in various property damage claims, it is simply inconceivable an attorney would not secure multiple appraisals in such an instance to establish before and after values. That it didn’t happen tells us there was either rank incompetence or a lack of evidence to be had. Carlson effectively gave the benefit of the doubt to the latter. 

Thus did the case immediately get at least halved, but there was more. First, there was neighbor, Martha Locey, who has lived roughly three miles way from the Ely property all her life and once worked at a former nursing home on Carter Road, just up the road from the gas wells in question. Locey was another highly credible witness in the mold of Mildred Green who had testified earlier and she had a similar story to tell. It was one of bubbling water that could be set on fire and had lots of iron in it long before gas drilling was even a dream in the minds of local residents. Leslie Lewis did her best to cast doubt on Mrs. Locey’s testimony but it didn’t work.

Read more by clicking here. 

This came after anti-drilling activists (who apparently did not want the details of how poorly the trial has reflected on the many claims that have been made about fracking in Dimock) flooded Facebook over the weekend with claims that FrackNation director Phelim McAleer's reports on the trial were "inappropriate," succeeding in getting the posts temporarily removed and the FrackNation page shut down for about 24 hours.  The page was subsequently reactivated and all of McAleer's reports were restored.

WE BEAT FACEBOOK CENSORSHIP You did it - you made Facebook back down and we have succeeded in beating the censorship...
Posted by FrackNation on Tuesday, March 8, 2016

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