In Hiser v. XTO Energy, Inc., the Eighth Circuit affirmed a jury verdict against XTO Energy, Inc. (XTO) and rejected XTO’s argument that the district court should have granted its motion for a new trial. The appeal was heard by Judge Duane Benton, Judge Michael J. Melloy, and Judge Bobby E. Shepherd. Hiser involved allegations by the plaintiff that she suffered damages due to XTO’s drilling operations on a neighbor’s property.

During deliberations, the jury asked the district court whether XTO’s drilling operations included fracking or only drilling. The judge responded that the jury could only consider evidence presented by the parties. After XTO moved for a new trial, the parties submitted affidavits from multiple jurors. The jurors stated that they discussed fracking before the court’s instruction; however, those discussions ceased after the court instructed them to only consider the evidence presented at trial.

The jurors disagreed on the extent of their fracking discussion. Whereas one juror stated that they discussed the potential negative effects of fracking on the plaintiff, another juror stated that there was no discussion of the negative impact of fracking. Indeed, another juror stated that they merely discussed fracking generally. The jurors also disputed whether they discussed earthquakes, a topic that was mentioned only briefly at trial.

The Eighth Circuit rejected XTO’s argument that the district court abused its discretion by not ordering a new trial. The panel reasoned that the district court’s instruction adequately reduced any potential risk of prejudice. Moreover, the panel noted that there was no evidence of prejudice. Even assuming that the jury discussed earthquakes before the court’s instruction, the panel concluded that the discussion did not impact the verdict or prejudice XTO. 

Furthermore, if the jury discussed earthquakes after the court’s instruction, the panel reasoned that there was no prejudice because the discussion did not reference the plaintiff or XTO. Lastly, the panel held that even if the jurors discussed extraneous information, XTO did not demonstrate that it suffered any prejudice or that the verdict was impacted.Read the opinion.

This post was written by Barclay Nicholson ( or 713 651 3662) and Johnjerica Hodge ( or 713 651 5698) from Norton Rose Fulbright’s Energy Practice Group.