The Dimock verdict, so insane even the Scranton Times called it jury nullification, is now being challenged, thank goodness. May justice prevail this time.
The jury’s verdict in Scott Ely’s case against Cabot Oil & Gas was so counter to the facts, so opposite the law, so bad, even the Scranton Times used the words “jury nullification” to describe it. It was as if the Dallas Cowboys had scored 10 touchdowns to the Philadelphia Eagles single field goal, only to have the referees call them all back at the very end of the game and declare the Eagles the winners. It had to be challenged and now it has been, as Cabot has filed a compelling motion with the court to throw the whole thing out.
The Cabot motion is easy to digest and may be found in its entirety here. It will, of course, be supplemented later with detailed briefing of the arguments, but the major points are outlined in this motion and among them are the following that resonated with me as an observer of the trial itself:
- It was uncontradicted that the Plaintiffs’ alleged water supply changes/impacts occurred prior to the stipulated date upon which the drilling of either well commenced.
- Plaintiffs’ hydrogeology expert failed to identify any pathway that connected either of the Gesford wells to the water supplies at issue.
- Plaintiffs presented no evidence that the methane gas allegedly in their water supplies originated from either of the Gesford wells or was from a source somehow “freed” by the drilling of the Gesford wells.
- Plaintiffs’ rock mechanic expert admitted that his entire theory of impact to the Plaintiffs’ water supplies was based on speculation.
- Plaintiffs’ rock mechanic expert was not qualified to testify regarding hydrogeologic connection and/or methane migration between the Gesford wells and the Plaintiffs’ water supplies.
- Plaintiffs’ counsel made improper closing arguments, including (1) inviting speculation about facts not in evidence; (2) engaging in personal vouching; (3) making clear implications or statements about the COSA requirements and settlements with plaintiffs, which were excluded from evidence; (4) misrepresenting that the Court already had made a prima facie finding of Cabot’s liability; and (5) implying that Cabot had threatened Plaintiffs and pressured them to settle their claims.
- Plaintiffs’ counsel made wholly baseless accusations that Cabot destroyed and/or withheld evidence.
- Plaintiffs’ counsel purposefully violated the Court’s evidentiary rulings by making statements and questioning witnesses, without approaching the bench first, concerning matters that (1) had been excluded by the Court’s prior rulings on Cabot’s motions in limine and/or (2) had been excluded at Plaintiffs’ counsel’s request, thereby forcing Cabot to object and approach the bench, in effect reversing the burden by imposing it on Cabot, and leaving the jury with the unmistakable impression that Cabot had something to hide.
- Plaintiffs’ counsel routinely, repeatedly, and openly presented evidence to contradict the parties’ binding stipulation regarding the date drilling began on the first Gesford well and told the jury in closing argument that the stipulation “doesn’t matter.”
- Plaintiffs’ counsel implied during witness questioning and closing argument that there was more to say on a topic but that counsel was hamstrung from discussing the topic further.
- Despite the Court’s frequent admonitions, Plaintiffs’ counsel continuously asked improper questions, including leading, argumentative, and compound questions posed to Plaintiffs’ own witnesses.
Each of these arguments matches what I observed from the trial and, indeed, what the Scranton Times’ Terri Morgan-Besecker reported on the day she was there. Plaintiffs’ attorney Leslie Lewis, of course, was previously sanctioned in this case for improper behavior, which lends further credibility to Cabot’s assertions. What was most important to me, though, was the inclusion of this point:
The Court erred in failing to adopt Cabot’s proposed supplemental jury instruction regarding the fact that property damage is not a compensable element of damages under nuisance law.
Readers following the case here at NaturalGasNOW will recall I raised this matter here, pointing out the following in regard to the failure of most media reporters to be there and observe what was actually happening at the trial:
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?
Yes, the judge said, early in the trial, it was about property damages and, then, later dispensed with that part of the claim without ever instructing the jury he had done so, leaving them with the unmistakable but clearly wrong impression they could assess property damages. If that’s not a basis for throwing out this insane Dimock verdict and/or ordering a new trial, then there’s something terribly wrong with our legal system. Sun Tzu (pictured above) famously said “Wheels of justice grind slow, but grind fine.” We’ll see.