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.
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