For many residents of Carter Road in Dimock, Pennsylvania, it’s been nearly a decade since their lives were turned upside down by the arrival of Cabot Oil and Gas, a company whose Marcellus Shale hydraulic fracturing (“fracking”) wells were plagued by a series of spills and other problems linked to the area’s contamination of drinking water supplies.
With a new federal court ruling handed down late last Friday, a judge unwound a unanimous eight-person jury which had ordered Cabot to pay a total of $4.24 million over the contamination of two of those families’ drinking water wells. In a 58 page ruling, Magistrate Judge Martin C. Carlson discarded the jury’s verdict in Ely v. Cabot and ordered a new trial, extending the legal battle over one of the highest-profile and longest-running fracking-related water contamination cases in the country.
In his order, Judge Carlson chastised the plaintiff’s lawyers for “repeatedly inviting the jury to engage in unwarranted speculation” and wrote that, in his personal estimation, the plaintiffs had not presented enough evidence to warrant the jury’s $4.24 million in damages. The original complaint for the case was filed in November 2009.
Nonetheless, Judge Carlson declined to throw out the lawsuit entirely, ordering Cabot to re-start settlement talks with the Ely and Hubert families. If those talks fail, the trial process will begin anew, extending the already years-long legal battle into months or even years to come.
“The judge heard the same case that the jury heard and the jury was unanimous,” Nolan Scott Ely, the lead plaintiff in the case, said in a statement. “How can he take it upon himself to set aside their verdict? It’s outrageous.”
Retrials “Not as Rare”
Over time, Judge Carlson’s order noted, the plaintiffs’ legal complaints had been successfully winnowed down by Cabot, which was represented at trial by several lawyers from Norton Rose Fulbright, the tenth highest-grossing law firm in the world in 2016. The case now centers around a nuisance complaint.
Ely, whose background is in construction work, and his family and neighbors were represented at trial by a solo practitioner, Leslie Lewis, assisted by one other attorney. During one brief stint in the years leading up to the trial, the two families had no lawyer at all, but represented themselves. When the case began, they had the assistance of the firms Napoli Bern Ripka Shkolnik & Associates and the Jacob Fuchsberg Law Firm (the former employer of Lewis), which ushered in a settlement agreement with some of the 44 original plaintiffs.
But Ely and others were not satisfied with the offer, which included a non-disclosure agreement, and decided to proceed with the lawsuit.
John-Mark Stensvaag, an environmental law professor at the University of Iowa, said that orders to re-try cases “are not as rare as one might think.”
“This does not mean that the plaintiffs have no case,” he added, “it only means that, in [Judge Carlson’s] opinion, they have not presented a case justifying the jury’s verdict and should be given a second opportunity to present an adequate case.”
The Ely family leaves the federal courthouse on the first day of trial in 2016. Credit: Laura Evangelisto © 2016
Carter Road Water Contamination
There’s little question that something is very wrong with the water on Carter Road, despite lingering questions in the legal battles centering around that contaminated water.
In 2016, shortly after the Elys and Huberts’ $4.24 million verdict, the Centers for Disease Control issued a report concluding that Dimock’s tainted waters carried dangerous levels of chemicals including arsenic, lithium, and 4-chlorophenyl phenyl ether (which is acutely toxic if swallowed). Further, the water was laced with enough methane that five of the homes on Carter Road had been at risk of exploding. Indeed, on New Year’s Day 2009, one of Dimock’s contaminated drinking water wells did explode.
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