The Dimock verdict overturn by Judge Carlson tells the story of what he describes as a “tragic” pre-trial event and performance by the plaintiffs’ counsel.
Absorbing the full impact of Judge Carlson’s decision overturning the Dimock verdict on Friday requires reading his decision multiple times. There is so, so much there. It is packed full of insights as to how the fractivist cause has been pursued to the detriment of all involved, including the plaintiffs themselves, who were used like puppets in an ideological campaign against oil and gas development. Carlson used the word “tragic” to describe a pre-trial disaster at the hands of Attorney Leslie Lewis, counsel for the plaintiffs. The word is hardly typical of legal argument and obviously wasn’t chosen lightly. It is, nonetheless, absolutely correct.
Attorney Leslie Lewis, although she was assisted by another attorney and fractivist, Elisabeth Radow, was the lead counsel for the plaintiffs. As I wrote last year, she took over after “the super-slimy trial lawyer firm of Napoli Bern Ripka, which had represented Dimock plaintiffs, left the case after it became apparent there was no evidence.” That wasn’t Lewis’ first involvement with the case, though, as many have forgotten. She had been part of the Napoli Bern Ripka firm the it represented the plaintiffs and the case was bouncing back and forth between Judge Carlson and Judge John Jones of the Middle District of Pennsylvania. She was the subject of sanctions over the case, in fact.
Lewis was sanctioned for ghostwriting legal documents for the case when she wasn’t authorized to do, which wasn’t such a big deal, but that wasn’t all. Here’s what Judge Jones wrote about Leslie Lewis (emphasis added):
What is far more troubling to this Court, and has been of great concern to us since we inherited this case from our former colleague Judge Thomas I. Vanaskie, is Ms. Lewis’s unprofessional and dishonest behavior towards the Court and her adversaries. From the very first time Ms. Lewis appeared before us in open Court, she has conducted herself in a fashion that is obdurate, unprofessional, and disrespectful. Moreover, her dealings with opposing counsel in hearings and discovery issues that have come before us are noteworthy for their lack of even a scintilla of collegiality. We are hardly surprised at the allegations levied by the Defendants in the instant motion. Ms. Lewis’s presence in this action, both overt and secret, has been highly deleterious to the ends of justice. In short, Ms. Lewis wrote submissions wherein she knowingly misled the Court and opposing counsel by stating that the Plaintiffs were pro se. Such knowingly false statements not only violate the duty of candor, but they are breathtakingly brazen and cannot be lightly excused. In our view, the most appropriate sanction, tailored specifically to Ms. Lewis’s falsehoods before the Court, is to require her to attend and complete 5 hours of ethics-based Continuing Legal Education.
When Napoli Bern Ripka bailed on the case to chase real money (and presumably concentrate on the woes of their principals, who were engaged in a battles over their prostitutes), the plaintiffs went back to Leslie Lewis. Why they did so isn’t clear but one can surmise it may have had to do with the fact she may have been the only one who would do it. Radow’s help was also a clear signal this was a fractivist cause célèbre that was being kept alive for the PR value. The plaintiffs, apparently teased by the possibility of cashing in, fell for it.
The plaintiffs should have realized what was up from the outset of last year’s trial. Judge Jones had already narrowed the scope of the trial that would be held when he ruled a year earlier they had “entirely failed to produce evidence to support these claims.” Only left were two very specific issues of negligence and nuisance (later reduced, during trial, to just nuisance, although this wasn’t explained to the jury). But, Leslie Lewis tried to make it a case about fracking and everything connected with it, producing the “tragic pre-trial event” Judge Carlson discussed in overturning the Dimock verdict:
On February 12, 2016, at a pretrial conference, the Court was presented with a startling issue that had arisen: despite having been preparing for this litigation for many years, the plaintiffs had failed to provide or identify scores of documents that they now first proposed to introduce at trial. Cabot, reasonably, moved to exclude these undisclosed materials, and the Court was constrained to enter an Order excluding more than 300 of the plaintiffs’ proposed trial exhibits resulting from counsel’s “completely unexplained, and wildly kaleidoscopic” submission of “voluminous, contradictory, cryptic, confused and confusing” exhibit lists. Indeed, the Court was compelled to acknowledge that never in the undersigned’s 36-years as a federal court litigator and judge had the Court “[ever] observed a wholesale discovery default of this scope and dimension” and it was thus something that constituted “an unprecedented event in our experience.” This ruling, which the plaintiffs’ vigorously contested, was compelled by the plaintiffs’ wholly unexplained production of thousands of pages of exhibits, and over 300 categories of exhibits, which had never previously been identified, and in some cases even produced, over the course of the entire litigation…
The Court includes reference to this tragic pretrial event because it offered a worrisome preview of what was to come once a jury was empaneled: a failure to reconcile the plaintiffs’ case as they imagined it with the significantly changed legal and factual landscape of this litigation. The plaintiffs’ case had been substantially, and appropriately, narrowed by the District Court’s ruling on summary judgment. The plaintiffs’ documentary evidence in support of these narrowed claims had been made narrower still through their own pretrial missteps and disregard of the Court’s orders. The plaintiffs were thus faced with an especially narrow path to prove their remaining claims, and the plaintiffs were made explicitly aware of just how narrow that path was. Yet, the plaintiffs, their witnesses, and their counsel proved unable to stay within the narrow boundaries that had been set by legal rulings in this case – rulings that were compelled by the law, the evidence that had been adduced, and the plaintiff’s own pretrial conduct.
The exclusion of the plaintiffs’ proposed exhibits would be a harbinger of what would follow over the course of trial, with numerous instances in which the plaintiffs’ witnesses were invited to stray from the confines of what they were permitted to discuss to offer passing commentary about other drilling activity in the area; to hint at other matters unrelated to the plaintiffs’ claims that suggested Cabot engaged in prior misconduct; or to suggest to the jury that there were additional admissible factual issues that they were not permitted to discuss but were obviously relevant to the plaintiffs’ claims. The aggregate effect of this repeated trespass into prohibited areas was compounded during a highly irregular closing argument, which ultimately created the impression for the jury that Cabot must have been responsible for all of the plaintiffs’ alleged water problems – problems that began before the Gesford wells were drilled, a fact that we now know because the plaintiffs stipulated to it before trial.
It is an absolutely stunning series of observations and speaks for itself. But, of course, there is a potentially plausible explanation. Was Leslie Lewis pursuing the interests of her clients or pursuing the publicity value of a frontal attack on fracking per se and especially of a court “throwing out evidence,” even though it wasn’t legitimate evidence and often nothing to do with the matter at hand? Only God and Leslie Lewis (and perhaps Elisabeth Radow) know the answer to that question.
Victoria Switzer says she knows, though. Here’s what Heinz Endowments and William Penn Foundation fractivist shills at StateImpactPA reported before they inexplicably revised their story to delete it:
Check it against their current version. Switzer, who was a witness in the case, a fact shockingly not disclosed by StateImpactPA, said she was “shocked” and “heartbroken.” Yeah, I’ll bet she was shocked alright; shocked in the same manner as the fellow who discovered gambling going on in Casablanca. Switzer has been a fractivist publicity machine for years now. She knows the shock value of a sound bite suggesting “There was an awful lot of coziness between him and the Cabot people.” The only questions this time are why StateImpactPA saw fit to interview her without disclosing she was a witness for the plaintiffs and why they later deleted it? Was there something to hide?
More to the point, we have a good idea where the gambling was going on, don’t we? Switzer, the plaintiffs, their legal counsel, their fractivist “experts” and their other friends appear to have gambled on spreading around as much bovine excrement as possible. The theory was that enough of it might stick to poison the jury, get an emotional reward and have at least one year of wonderful fractivist news with the possibility of holding up Cabot for a smaller negotiated award at the end of the day. They got to Step 2 before Judge Carlson, recognizing their antics and familiar with their history came to the fore to hose everything down.
And, hose it down, he did:
During trial, the plaintiffs, their witnesses and counsel continually strayed into forbidden territory by repeatedly hinting at evidence that had been excluded from the jury’s consideration, or by resorting to unorthodox questioning and argument from counsel at all stages of the case. This inappropriate conduct marred the trial from opening to close, and impelled the Court repeatedly to conduct sidebars with the parties – 40 in total, lasting more than three and a half hours, often at the request of Cabot’s counsel – and, unfortunately, to admonish and reprimand plaintiffs’ counsel in the jury’s presence even during closing argument.
This intervention by the Court was forced even after counsel had specifically been put on notice that her summation at closing was inviting speculation, was improperly vouching for witness credibility, was implying the existence of settlement agreements that had been excluded from evidence, and was making mention of legal rulings made by the Court, including to suggest – wrongly – that the Court had made a prima facie finding of negligence in the case. In reviewing the record, the Court is left with the firm impression that this conduct was inappropriate and likely influenced the jury’s verdict…
Counsel’s tendency to diverge from the record that had actually been made was especially problematic because it caused Cabot to object not only throughout trial but also during closing argument. By forcing Cabot into the dilemma of choosing between an objection to improper testimony, or foregoing an objection, and allowing the introduction of excluded evidence, plaintiff’s persistent refusal to follow our orders and instructions created a wholly misleading impression for the jury. It suggested to the jury to speculate that they were not receiving the whole story and that evidence was being improperly withheld from them.
Whether intentional or inadvertent, the impression created by this course of action was both wrong and unfairly prejudicial. In fact, this would be an issue that arose specifically during closing as well. Counsel said on multiple occasions that she would not “go beyond that,” or offering a statement regarding constituents in the plaintiffs’ water before saying “but I won’t go into that,” or hinting that the plaintiffs were being pressured to settle their cases but that she was “not saying how, I’m not getting into any details. I’m not implying anything, other than it has –” before this commentary was cut off by the Court.
In addition to arguing about matters not in evidence and those that had been specifically excluded from the case, and implying that Cabot or the Court were preventing the jury from hearing all of the relevant evidence, plaintiffs’ counsel also took the unfortunate step of vouching for her witness’ credibility. In the context of the numerous irregularities in this case, this was also error, and further compels us to set aside the verdict.
It is a cardinal rule under the Pennsylvania Rules of Professional Conduct that “[a] lawyer shall not . . . when appearing before a tribunal, assert the lawyer’s personal opinion as to the justness of a cause, as to the credibility of a witness, [or] as to the culpability of a civil litigant.”
These are the facts on the “tragic” (Judge’s term) performance of the Dimock plaintiffs and their fractivist team. Some have been reported; others have not. It was a disastrous performance, obvious to anyone who attended the trial, except for eight people on the jury who fell victim to it. Let me also suggest some of the plaintiffs were victims, not of Cabot, but of a fractivist ideology that respects no boundaries and, for whom, the ends always, always justify the means, however cruel.