The Dimock verdict now having been overturned, it’s worth looking how fractivist experts did in the eyes of the judge. They didn’t impress him much at all.
Yesterday afternoon came the great news that the Dimock verdict had been overturned by Judge Carlson, the man who heard the entire case. For the record, Carlson not only but bent over backwards to accord the plaintiffs’ counsel respect they refused to give others, but he also stood on his tiptoes, stretched his arms and legs as far as they would go and offered to do somersaults to give the plaintiffs the opportunity to make their case.
Anyone who was there for any part of the trial could see that. Indeed, my view is Judge Carlson went too far in tolerating the plaintiffs’ counsel tactics and wasn’t explicit enough with the jury when he gave final instructions. He also allowed in very speculative expert witness testimony by the plaintiffs though he was anything but impressed by it.
Paul Rubin and Tony Ingraffea are the two experts to whom I’m referring. I covered their testimony last year in posts here, here and here. Rubin, whose expert witness testimony has been rejected by court after court over the years, tried to pretend he wasn’t an activist, despite evidence like this the rest of us possessed from simply accessing social media.
How did Rubin do in the eyes of the judge (emphasis added)?
Even before trial, when the Court substantially curtailed the scope of Mr. Rubin’s testimony in its Daubert opinion, the Court noted the inescapable conclusion that “much of Mr. Rubin’s proffered testimony is long on conjecture and speculation and short on testing and analysis.” In so ruling, the Court found that Rubin “has insufficient basis to render an opinion regarding the actual migration of groundwater from Cabot’s wells to the plaintiffs’ aquifers” and, therefore, precluded him from testifying at trial about “the existence of any specific pathways between Cabot’s wells and the plaintiffs’ water supplies for the simple reason that he did not do any testing that could confirm such a subsurface connection.”
At trial, Rubin conceded on cross that he had not done any testing or other analysis that could have permitted him to opine to a reasonable degree of scientific certainty that there was a specific joint, set, fault or fracture through which any chemical or substance could travel to the plaintiffs’ two wells. Instead, Rubin could only say he made some observations of geological faulting by visiting a quarry more than half a mile from the plaintiffs’ wells. Rubin admitted that he did not know exactly which way the faults traveled, and his speculative opinion that the faults could have extended to the plaintiffs’ property was weakened by the fact that he had never personally seen a fault extend more than 2,000 feet, and because he did not ever examine the geology on the plaintiffs’ property.
Lastly, Rubin never performed any testing of the Huberts’ water, which causes his opinion to be especially limited with respect to their claims. Any probative value of Mr. Rubin’s testimony was limited – both by his own admission and by the limitations that had been placed on his area of expertise – to general observations regarding the geological features in the area that may be relevant to underground migration of water.
The limited, general and highly inferential testimony offered by Mr. Rubin was sharply contrasted with that offered by Dr. Tarek Saba, who opined based upon substantial scientific testimony that no pathway from a single source impacting the plaintiffs’ wells, and because the Ely and Hubert wells were not in communication with one another based upon information gleaned from chemical analysis of those wells. Thus, in contrast to Rubin’s acknowledgment that he had not identified any one pathway between the Gesford pad and the wells, Dr. Saba testified without contradiction that no pathway even existed.
The stark contrast between the testimony of these experts on this single issue – let alone Dr. Saba’s extensive testimony regarding the chemical composition of the plaintiffs’ water wells, and the geological features that could have impacted water flow to those wells, severely undermines the Court’s confidence in this proof as support for the conclusion reached by the jury.
Rubin’s performance in the Dimock trial had an eerily familiar sound to what he did in the Anschutz case where that court concluded his “speculation [was] not sufficient to establish causation” and the Kiskadden case where another court determined “his ‘shotgun’ approach to what caused the contamination was not persuasive based on the evidence.”
Tony Ingraffea (pictured above basking in the glow of celebrity) did little better and perhaps a little worse in that he relied upon Paul Rubin.
Dr. Ingraffea’s opinion, though less limited in scope than Rubin’s, also suffered from some glaring weaknesses, chief among them that some aspects of it were simply speculative – and Dr. Ingraffea admitted as much. Dr. Ingraffea’s theory of how the plaintiffs’ water wells were impacted was that gas was coming from activities initiated on the 3S well by it going through the 1,500 foot gas show – then moving over to the Gesford 3/9DD well bore, and somehow migrating up that well bore before entering an aquifer that took it to the plaintiffs’ wells. This theory is difficult enough to believe on its own, but especially so when considered against evidence which strongly suggested these water wells were not fed by a single source, and were not even connected to one another. Dr. Ingraffea conceded that this multi-part theory was based substantially upon speculation, and that he had no proof to support it.
Dr. Ingraffea’s testimony was also glaringly limited with respect to causation because he was not qualified to testify about hydrology or hydrogeology, and he acknowledged that it would take an expert in these fields to explain the flow of gas into a water supply:
“I can explain why a defective well might cause previously ensconced hydrocarbon fluids to be available for flow in an underground aquifer. It is the hydrologist’s job to then determine whether underground flow of that aquifer in space and time could explain how these now liberated fluids could get into the water supply at the point of the water wells. That’s the picture. It takes team work to do this.”
In other words, Dr. Ingraffea’s testimony relied upon the testimony of another expert – presumably Paul Rubin – to connect his theory of negligence to the alleged contamination of the plaintiffs’ wells. As noted, however, the evidence on this score was badly deficient, and thus further renders Dr. Ingraffea’s testimony to be of marginal value. There was simply an analytical gap between the opinions offered by these experts that the plaintiffs never fully connected at trial. Instead, the plaintiff’s theory of their case left the jury to speculate regarding a possible connection between allegedly negligent drilling activity at the Gesford pads, the resultant flow of hydrocarbons through the earth as a result of that drilling into unidentified underground pathways, and the delivery of those hydrocarbons along those pathways as contaminants to the plaintiffs’ water supplies.
There you have it; two Rodney Dangerfield fractivist experts who get tons of press but couldn’t make the case that needed to be made to prove their client’s case. One relied upon the other and that one relying upon unsupervised water tests conducted by one of the plaintiffs himself. Why were we al put through this? Who paid these experts? And, why? These are the questions that now need to be answered.