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The Dimock Verdict: What the Media Got Wrong

shale gas outrages - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.

 

Virtually every bit of reporting on the Dimock verdict missed the point and failed to call out why it was a decision totally contrary to the evidence presented.

The reporting on the Dimock verdict was abysmal. Only one reporter actually attended the trial and she left before Scott Ely finished testifying, not to return until the end. Others, such as Laura Legere, who wrote dozens and dozens of Dimock stories over the years helping to fashion the myths surrounding the case, couldn’t be bothered to attend, perhaps because, deep down, she knew the truth; methane problems in Dimock existed long before drilling.

Legere still lives in the Scranton area and only took interest when the surprise verdict came down, writing yet another piece suggesting Cabot had it coming, of course, with her characteristic sleight-of-hand reporting. She included quotes from Cabot about the lack of evidence but, like so many others writing about the Dimock verdict, couldn’t speak to it herself in any detail because she wasn’t there. The reporting from others was similar, as story after story accepted the contamination verdict with putting it into context or even discussing the evidence. If they had, they would have come to the inescapable conclusion the Dimock verdict was an instance of jury nullification – an extraordinary story that should have been told.

Dimock Verdict

The one reporter who was there, Terrie Morgan-Beesecker, wrote a very fair article at the outset of the trial about Scott Ely’s very bad day in court, noting the following:

Mr. Ely said he first became concerned about his water in January 2009, when his children developed unexplained rashes and headaches. He had his water tested and discovered high levels of methane.

Under cross examination by Ms. Barrette, Mr. Ely acknowledged he authored a handwritten note to his attorneys in which he said he first noticed problems with his water in August 2008. The water, he said, smelled like rotten eggs and “was really bubbly.”

That date is key to Cabot’s defense as the company did not begin drilling the wells in question until September or October of 2008, Mr. Dillard said.

The fact Scott Ely’s water problems began in August, 2008, and the wells weren’t drilled until October of that years, of course, was the critical point. Not only did Scott Ely admit, during testimony, that he had started complaining before drilling, but his legal team stipulated to the fact and the Huberts said the same thing under oath. There was, too, the testimony of residents Martha Locey and Mildred Green that they had experienced similar issues decades earlier, all confirmed by the research and testimony of Dr. Tarek Saba, a hydrogeologist. There was evidence everywhere in the courtroom, in fact, that Scott Ely’s water problems existed before Cabot ever stuck a drill bit in the ground anywhere near his home.

Yet, aside from the reporting of Phelim McAleer of FrackNation and on this blog, there is no mention of Martha Locey, Mildred Green, the Hubert testimony or Dr. Saba anywhere in the major coverage of the Dimock verdict and onlyTerrie Morgan-Beesecker mentions what should have been the fatal conflict of dates. The first doesn’t normally become the last unless one is Biblically speaking, but somehow that’s exactly what happened in this instance and if anyone else in the media reported that singular compelling fact, I don’t know who it was.

No, by and large, the media reports focused only on the jury’s conclusion Cabot had “negligently created a private nuisance which significantly harmed…the Plaintiffs in their use and enjoyment of the property by contaminating the water well(s) on the Ely property.” They ignored the jury nullification because they didn’t know and didn’t bother to research the facts. Interestingly, the Scranton Times-Tribune, probably because its reporter had been there for at least part of the trial, did acknowledge Cabot had proven “there was no proven physical connection underground between its gas wells and the water wells” and suggested there could have been jury nullification involved, but then bizarrely applauded it. Only in media dreamland could such reasoning hold sway, but at least they recognized the problem with the evidence.

Dimock Verdict

Scott Ely’s 26-room, 7,000 square foot photo (Scranton Times-Tribune)

Or, should we say lack of evidence? Fractivists, including Laura Legere, have repeatedly tried to suggest the Elys were prevented from using their evidence but Judge Carlson’s decision on that matter leaves no doubt as to what really happened. Scott Ely and his team tried throwing a shovelful of hot stinking bovine excrement against the wall at the last minute, not only hoping some small part of it might stick, but also that they would have a great argument upon appeal of a Dimock verdict that went against them. Like boxer Max Schmeling’s manager upon losing a match, they could say “we wuz robbed,” and, no doubt, they were as surprised as anyone when the verdict went their way and a the amount of damages.

We can, nonetheless, surmise from the testimony how the damages might have been determined and that provides even more indication of the mostly unreported jury nullification involved in this instance.  The actual Dimock verdict can be found here and these are the details of the awards (lettering error in original):

dimock verdictThat is $2.75 million for the Ely family for their “inconvenience and discomfort.” It is important to keep in mind two dates in this regard. Scott Ely, contradicting his earlier statements that his water problems occurred in August, claimed, in testimony on the stand, that he noticed issues with his water in January, 2009. The second date of importance here was March 20, 2012 when, as the Hubert testimony brought out, the EPA sent a letter saying there were no constituents detected in the water at levels of concern. It was further brought out in Monica Ely’s testimony that she refused on her own accord to drink the water, acknowledging her position was “psychological,” not fact-based.

That means any “inconvenience and discomfort” after that date was self-induced, so we’re talking about 1,167 days, at most, that could ascribed to Cabot’s actions if one accepts the plaintiffs’ position that, unlike others in the area, their water was never before impacted by pre-existing shallow methane. That’s $2,356.50 per day of “inconvenience and discomfort.” Does anyone  believe that’s reasonable, especially given the fact Cabot, under Pennsylvania’s “guilty until proven innocent” presumed liability standard, was supplying them water during this period and offering a water treatment system to remove the methane? Not a chance, and, likewise, not a chance any reporter would pick up the absurdity of the award or ask questions.

There had to be other factors involved and I suggest the answer is to be found in the real estate value of the Ely and Hubert homes. Scott Ely testified he thought his 7,000 square foot home was worth up to $250 per square foot which equates to $1.75 million. The typical new home in Northeast only cost $97.09 per square foot in in  2014, but we’ll use his inflated number). Add in a cool $1 million for the aggravation and you have the Dimock verdict award to the Elys.

There is just one problem; the judge threw out the property damage claim before the case went to jury deliberation. Moreover, he did so in proceedings that were open to the public, as well as media representatives who should have been there but weren’t. The jury wasn’t present to hear it, but any reporter could have been and here is some of what the judge said on March 7th:

I find as to the first element of permanent real property damage claim, that is proof of the value of the property prior to injury, that there’s been a failure of proof by the plaintiffs.

I also note that in my own estimation that the second element of a permanent real property damage claim under Pennsylvania law, which is showing a diminished value following, an injury has not been met here as well. We have no evidence from which I believe a jury could reach an 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, seven-thousand square foot residence on the property; construction that it is acknowledged had begun by the time this lawsuit had been filed but gone only as far as excavation and the placement of footers, and it seems clear to me the undisputed evidence is that the major construction in this case that seven-thousand 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...

I conclude that there is no evidence from which a jury can find a pre-drill value for this property…I further find that there is no evidence of diminution in the value of the property following the matters alleged in this case which began in 2008 and according to the testimony of the plaintiffs were fully recognized by 2009.

I also find that there was ample opportunity for the plaintiffs to develop both of these valuations…Yet the plaintiffs have not provided evidence on either these two elements of valuation of property in terms of setting a damages amount under Pennsylvania law.

I find that the information the plaintiffs have provided relating to the value of a house built years after this alleged damage is both inappropriate as a measurement of damages under Pennsylvania law and it’s fraught with significant potential for confusion of a jury. A jury looking at that information in isolation, and they would be compelled to look at the information in isolation because they have nothing to compare it to, might be confused and believe that the plaintiff’s assessment of these subsequent improvements on the property is a proper measure of damages.

That last part is extremely important because the jury never heard it, but reporters could have, had they been there. If they had been there to hear it, they would have known just how ludicrous the jury verdict was and that would (or should) have been the story. They might have also picked up on the fact the instructions to the jury never took notice of the dismissal of the property damage claim, although the jurors were told they could not award damages for emotional distress or the cost of supplying water. Here’s the relevant part of the judge’s instructions:

In this case the plaintiffs claim that Cabot’s drilling activity negligently contaminated their water supplies causing a public nuisance that was a legal cause of injury to the plaintiffs. The plaintiffs seek to recover damages for inconvenience and discomfort that they claim to have experienced as a result of Cabot’s alleged conduct.

As you consider whether the plaintiffs have proven damages for inconvenience and discomfort though, keep in mind, the damages for inconvenience and distinguish comfort do not include damages for mental or emotional distress or for replacement water costs.

None of the conclusions of the judge as a matter of law regarding property damages due to negligence made it into the instructions, so it’s not hard to understand why the jury might have thought it could link damages to Scott Ely’s property value calculation. Is that what happened? No one but the jurors know, but it is clear any reporter attending the trial would have known and understood the implications of a jury verdict that was either a case of jury nullification of the law and/or misunderstanding of that law. That no one was there to report on what the judge concluded about damages before the case went to deliberation is a media fail of immense proportions.

If media folks had been there they would have also learned there were supposed to be no punitive damages either, although that is another item that never made it into the jury instructions. They would, too, have heard the judge say this in front of the jury:

There is no claim in this case regarding any medical claims by any parties because, as I think both counsel very candidly noted for you in the opening statements, this isn’t about toxicity or the like.

Additionally, reporters who attended would have heard Dr. Hilbert’s and Dr. Saba’s compelling fact-filled testimony contrasted to Tony the Tiger Ingraffea’s and Paul Rubin’s speculation (and suspect testing methods in the latter’s case); speculation intended to boost their street cred with the fractivist movement of which they are part and parcel. They would have heard Mildred Green and Martha Locey tell how every problem identified by the Elys and the Huberts existed in the neighborhood for generations. They would have heard Scott Ely stumble over his dates and other plaintiffs confirm the problems started before drilling commenced. Finally, they would have heard this exchange between Monica Ely and her lawyer, with an interesting reminder at the end by the judge:

Leslie Lewis (Plaintiffs’ Counsel): So you agree that you were asked the question on during your deposition of 2011 by Ms. Barrette [Cabot’s Counsel] ; “if your water tests have shown that your water now is not contaminated, your water is fine and meets the EPA. primary drinking water standards, would you consider drinking the water” and your answer was no, correct?

Monica Ely: Yes.

Leslie Lewis: And Ms. Barrette asked why not. Do you see that?

Monica Ely: Yes.

Leslie Lewis: And, that happened. And, your answer was, “I just don’t feel…it’s kind of like taking Tylenol, if you think it’s poison, why would you try to. It’s just a scare. It’s more psychological than anything I guess, but me myself so be it, but I’m not going to risk it with my kids, I’m not going to do it. Is that your complete answer?

Monica Ely: Yes.

Judge Carlson: I will remained everyone this case is about property damages and not personal injuries, indeed, as all counsel told you. There’s no personal injury claims in the case. Thank you.

This brief exchange, combined with the fatal date conflict, should have put an end to the case. Monica Ely admitted the facts regarding her water supply simply didn’t matter. It was all psychological for her and her own attorney helped bring it out in the open with the jury. But, there was no reporter to hear it or recall it when the verdict came down; no one say “wait a minute, how in God’s name could that just happen?” and it’s criminal that there wasn’t.

That observation by the judge, contrasted with his later statement in dismissing the property damage claim and the lack of explanation to the jury at that time, might have also played on the minds of reporters had they just been there. If they had given the trial the same level of interest as the verdict and been there to observe they would have noticed a jury that obviously didn’t listen very well or, more likely, did listen and intended to nullify the law and stick it to Cabot.

They might have also, giving the jury some benefit of the doubt, asked how the jury was supposed to know it was not about property damages after it was about property damages if no one told them it was no longer the case. They might have asked, too, what exactly those damages were about if they weren’t about property damage, toxicity, medical claims, mental stress, emotional distress, replacing a water supply or punitive damages. Did the “inconvenience and discomfort,” of which a nuisance is made, amount to nothing more than Monica Ely’s “psychological” problem?

That no one from the media (aside from the very capable Terrie Morgan-Beesecker) was there along the way to pose these questions is nothing less than rank incompetence, bias or both, and certainly a lot worse than any self-imposed inconvenience or discomfort experienced by the Elys and the Huberts. Where were you, Laura?

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4 thoughts on “The Dimock Verdict: What the Media Got Wrong

  1. Pingback: Marcellus & Utica Shale Story Links: Tue, Mar 22, 2016 | Marcellus Drilling News

  2. I wish I had been on that jury, but trial lawyers don’t really like to have fact-based logical thinkers on juries — they want people they can confuse and sway to think “The defendant company is big, therefore it must be bad!!

  3. Pingback: An Insane Dimock Verdict Gets Challenged

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