Speculative Testimony Doesn’t Cut It in Dimock Case

Constitution Pipeline - MarkindDaniel B. Markind, Esq.
Weir and Partners, LLP


Judge in Dimock case orders new trial; plaintiff’s evidence was based on speculative testimony and unable to support the conclusion of the jury.

Last week, Judge Martin Carlson of the Middle District of Pennsylvania kicked asunder one of the pillars of the “Fracking Is Evil” movement when he vacated the jury award of $4.24 million to the plaintiffs in the case of Nolen Scott Ely v. Cabot Oil & Gas Corporation.   The jury verdict, in a case actually tried before Judge Carlson, is the culmination of the now famous Dimock, Pennsylvania situation made famous by “environmental activists” like Josh Fox, Susan Sarandon and Mark Ruffalo.  To the movement, “Dimock” has become synonymous with industry negligence and malfeasance.  Judge Carlson’s opinion now casts doubt on that characterization.

speculative testimony

Procedurally, Judge Carlson threw out the jury verdict and ordered an entirely new trial.  He did not grant Cabot’s wishes for a judgment in its favor notwithstanding the verdict, but he did make very clear that the jury’s verdict was completely unsubstantiated by the evidence.  He also instructed both sides to negotiate a settlement in good faith to avoid the cost and aggravation of a new trial.

Reading the 58 page opinion, what is abundantly clear is the Judge’s exasperation with the way the plaintiffs’ handled their case.  Right on page one, Judge Carlson wrote “(c)onfusion erupts when a party fails to see their case as it is, but instead persists in attempt to present the case as they wished it to be.”

This only was the first of the rhetorical broadsides the Judge fired at the plaintiffs.  On page 9, Judge Carlson wrote that never in his 36-years as a federal court litigator and judge had he ever witnessed a litigant act with such disregard to the rules of trying a civil court case as the plaintiffs in this one.  The plaintiffs “wholesale discovery default” constituted “an unprecedented event in our experience.”

Judge Carlson’s rulings were as follows:

  • The plaintiffs problems with their water began before Cabot began digging its natural gas wells;
  • The plaintiffs only possible claim was that Cabot’s actions may have exacerbated an already existing problem;
  • There was a very narrow path the plaintiffs had available to them to prove such exacerbation occurred and was caused by Cabot;
  • Giving the plaintiffs the benefit of every reasonable doubt and inference, the evidence was insufficient to support such a conclusion; and
  • Therefore, the jury award was unsupported by the evidence and cannot stand.

The ­Ely ruling came just one week after a decision by the Middle District in the case of Wayne Land and Mineral Group, LLC v. Delaware River Basin Commission.  While the ruling in that case went in favor of the DRBC in their assertions that they can regulate fracking within their geographic jurisdiction, Judge Robert Mariani used the majority of his opinion to excoriate the DRBC for its claims and obfuscations.  At one point, Judge Mariani wrote that “(d)espite the DRBC’s best efforts to side-step [the ultimate issue]” he would actually address it, and at another the Judge noted that the DRBC’s argument “invite an interpretive conundrum”.  And the DRBC won the decision.

speculative testimony

In Ely, Judge Carlson also was unsparing to the plaintiffs.  He saved much of his harshest criticism, however, for the plaintiffs’ experts, hydrogeologist Paul Rubin and Dr. Anthony Ingraffea, professor emeritus of engineering at Cornell University.  Neither Mr. Rubin nor Mr. Ingraffea performed any testing upon which to base the opinions they attempted to give at trial.  This led Judge Carlson to write that these expert witnesses “offered opinion testimony that came perilously close [to] speculation and at best were inferences that had weak factual support.”   By contrast, Cabot’s expert, Dr. Tarek Saba, performed extensive testing.  He gave testimony that Judge Carlson characterized as “uncontradicted evidence that undermined the plaintiffs’ very theory of liability in this case…”

From a broader perspective this scientific cognitive dissonance may be the most troubling aspect of the Ely case.  True, the jury believed the uncorroborated and speculative testimony of the plaintiffs’ experts.  The greater problem, though, is that the plaintiffs thought it sufficient to bring to Court two men claiming to be “experts” who had done no scientific testing and did little but engage in unsubstantiated speculation.

Supporters of hydraulic fracturing conclude that the process is good for America and the World.  On balance, when you look at the costs and the benefits, including substantial environmental benefits to the alternatives, proponents conclude that fracking is good.

Opponents know that it is bad.  How they know, they don’t say.  But they know.  In support of that certainty, they will do whatever is necessary to ban the process and the pipeline buildout necessary to fully utilize it.  They showed that in Federal Court in Ely.  Beyond that, look at the disgraceful remnants of the Dakota Access Pipeline protesters who left tons of garbage, at least 14 abandoned animals and human waste at the campsite after their protests ended.   The “environmental activists” didn’t seem to care that they left their refuse in a flood plain just in time for the spring thaw to send all that garbage and fecal matter into the local water supply.  That’s some concern for the environment.

Hydraulic fracturing will not occur without problems.  There will be environmental degradation and accidents.  It is after all an imperfect and very human endeavor.  Environmentalism on the other hand borders perilously close to religion.  No empirical evidence is needed, even in a federal court.  All you need is a certified “expert” who can pontificate without data.  To not believe is heresy.

Thanks to the federal courts, the pushback has begun against the Church of Environmentalism.  There is a very important role to be played by true environmentalists and the respective State and Federal Environmental Agencies when it comes to energy policy.  We all are diminished, however, when real science and honest discussion are no longer permitted.  Instead, they are replaced by empty environmental catechisms repeated by true believers who are unwilling to even consider alternative viewpoints or contradictory evidence.

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3 thoughts on “Speculative Testimony Doesn’t Cut It in Dimock Case

  1. Very well said. What a mess. There is absolutely a direct correlation between the behavior of the attorney or attorneys for the plaintiffs and the plantiffs “disregard for the rules” and what happens with those in opposition to pipelines. Those in opposition have an utter disregard for almost everything I would say. The role of the press in society is disregarded as reporters and papers are just lied to and manipulated. Anyone with a pipeline proposal is simply evil, immoral and more and every government body that does not reject the proposal is then complicit in the evil. Environmental impact statements? Completely disregarded. All expertise? Rejected. As with dakota pipeline, even after a judges decision last September was made looking at the facts and evidence provided by both the tribe and the army corps of engineers, chaos ruled the day and of course it was the army corps of engineers that was in the wrong even though this is the exact opposite of what a federal judges decision said. And I am ignoring a whole lot that is going on that is just completely inexusable like the harassment of ordinary citizens in opposition to the antifracking movement or doxxing of police officers and their families as with dakota pipeline.

    The facts cannot be reconciled with the narratives put forth by the antifracking pipeline resistance movement and since this movement has been reaching more and more people and gaining in influence now for years this is a major societal problem that needs to be addressed. Environmentalists should have the facts on their side when acting or choosing how to act just as anyone else should.

  2. Thanks for speaking out Daniel. It is a long and difficult road.

  3. Thank You
    Judge’s Ruling supports Merrill v Duabert regard scientific testimony. I support applying sound engineering practice and peer-review science to encourage USA industrial growth. Please see the following example. Richard W. Goodwin West Palm Beach FL 4/9/17
    Recent peer review articles [April and May 2016] reflect a shift in scientific opinions on Global Warming and Climate Change.

    Goodwin. RW. “Recent peer review articles [April and May 2016] reflect a shift in scientific opinions on Global Warming and Climate Change” Oil Pro; June 5, 2016


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