The full appeal of the insane Dimock verdict has now been filed and it’s compelling reading of what went wrong in the Scranton Federal Courthouse.
Cabot Oil & Gas has filed its detailed challenge of the Dimock verdict with the court and the introduction is a thing of beauty. We have reproduced it below for interested readers and highly encourage all to review it and also peruse the entire filing, which may be found here. The Dimock verdict was, as Cabot’s attorney’s demonstrate, “an aberrant result.”
Here is the introduction from the Dimock verdict appeal:
The verdict in this case is, simply put, an aberrant result. It defies logic, science, temporality, and the evidence. It can be explained only as the product of an overzealous advocate who refused to stay within the lines so carefully drawn by the Court and the applicable rules of procedure and evidence. Plaintiffs’ counsel’s antics, which unduly influenced the jury to the prejudice of Cabot Oil & Gas Corporation (“Cabot”), are thoroughly documented in this brief and alone would warrant a new trial. But Cabot respectfully contends that this case should not have gone to the jury, and that the verdict must be set aside and judgment rendered for Cabot. The reasons are straightforward: (1) proof of causation is lacking as a matter of law, and (2) proof of negligence is lacking as a matter of law.
Critical to the causation analysis is the element of timing: when did the Plaintiffs’ water complaints begin? Plaintiffs were emphatic that their water had been excellent in quality and quantity: it was clear, not cloudy or bubbly; it tasted good; it had no odor. So the question is, when did all that change – was it before or was it after Cabot commenced drilling the Gesford wells? Throughout the discovery in this case, and continuing into the trial, the answer to this central question remained a moving target. According to the various versions offered by Plaintiffs, it was either June-July, “the summer”, “late August” or October of 2008; or, it was January of 2009.
Finally, confronted at trial with the realities of a note to his lawyer in his own handwriting, as well as statements he had made to others (his physician and his expert witness) that had been recorded, lead Plaintiff Nolen Scott Ely was forced to come to a landing place: it was, he confirmed on cross-examination, July-August 2008 when the water turned bad. The other Plaintiffs fell in line. But there was a problem. That put the water complaints, the “injury,” before drilling started on the Gesford wells.
Plaintiffs found themselves hemmed-in by a binding pre-trial stipulation that drilling had commenced on the first of the Gesford wells on September 25, 2008. Thus, Plaintiffs and their counsel launched an effort to undermine the stipulation in order to get the proverbial horse (the cause) in front of the cart (the effect). Rejecting the Court’s numerous invitations to conduct a hearing outside the jury’s presence and follow Third Circuit law on the proper procedure for addressing the proposed modification of a stipulation, Plaintiffs instead pursued a different course. Their counsel Ms. Lewis took repeated shots at the stipulation, disparaging it in ways both direct and indirect, while disregarding and dodging the Court’s instructions and admonitions to the contrary along the way.
The jury got the message. Just to be sure they had, Mr. Ely came up with a new story, one never before told to anyone in the seven-year history of the litigation. Unable to move the cart, he attempted to move the horse instead, testifying that drilling on the Gesford well pad actually had begun not in late September 2008 as stipulated, but in June and July 2008, before the Plaintiffs’ water issues had manifested.
While Cabot was forced to rebut this new tale – and did so through the testimony of Shelley Williams and documentary exhibits – Mr. Ely’s new story must be disregarded because it is contrary to a binding stipulation. But the reality at trial was that while the stipulation technically stood, it had been undermined in repeatedly cynical and manipulative ways. And the lengths to which Plaintiffs went to do so only underscores the importance of the timing issue to the critical element of causation.
The parties’ stipulation and the testimony at trial were enough to convince the Court not to submit to the jury an instruction based on the Pennsylvania Oil and Gas Act presumption on causation. It also should be enough to convince the Court to render judgment for Cabot under Rule 50 of the Federal Rules of Civil Procedure or, at the very least, to grant a new trial under Rule 59. If more support were needed, it is provided by Plaintiffs’ experts Mr. Paul Rubin and Prof. Anthony Ingraffea. Rubin could not offer evidence of a pathway connecting the Gesford wells to the Plaintiffs’ water wells. And Ingraffea admitted on the stand that his key theory on negligence and causation was based on speculation. Speculation.
Cabot’s experts, though, testified based on scientific analysis and review of all of the relevant records. Dr. Tarek Saba testified as to myriad scientific tests and data that supported his conclusion that there was no connection between the Gesford well pad and the Plaintiffs’ water wells. Dr. L. Brun Hilbert testified – based on a review of the total documentary record in the case – that Cabot did not drill or complete either of the Gesford wells negligently. Dr. Hilbert walked through the drilling and well construction in great detail, based upon the contemporaneous records and regulations that applied. Both Drs. Saba and Hilbert concluded, to a reasonable degree of scientific certainty, that the Plaintiffs’ water changes were not attributed to Cabot. That testimony was not based on speculation and was not contested. Thus, the Court is presented with the question of whether a result admittedly based on speculation should be allowed to stand. Respectfully, it should not.
If nothing else, the $4.24 million jury verdict for inconvenience and discomfort damages plainly is excessive, is beyond what the evidence at trial warranted, resulted from partiality or prejudice of the jury resulting from Plaintiffs’ counsel’s incessant misconduct, and violates the Fourteenth Amendment to the U.S. Constitution. Therefore, should the Court not grant judgment in favor of Cabot and/or order a new trial, the verdict should be remitted or, at a minimum, molded to credit Cabot for undisputed prior payments to Plaintiffs related to the same alleged injury.
The intro is then backed up with over 250 pages of argument and supporting facts. I’ll be digging into all this and pulling out the most relevant points in another post, but this sentence got my immediate attention because it’s what especially convinces me, as a layman, the jury either had no idea what it was doing or was engaged in nullification:
Likewise, the jury heard evidence related to Plaintiffs’ negligence claim throughout the trial but were not instructed that the negligence claim was dismissed from the case.
I’ve brought this up before (here and here) and I don’t see how the judge gets around this failure with respect to instructions. If jurors are told by the judge, at the beginning of the trial, that it’s about negligence, hear about negligence for days and are never told that claim has been dismissed, how can anyone expect them to not think they’re still deciding an issue of negligence? Indeed, to not disclose the dismissal or simply instruct the jury it should no longer be considering that factor would appear itself to be negligence. We’ll see how the court looks at in retrospect, but, in the meantime, we’re a long way from that famous fat lady’s song.