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A federal judge has thrown out a $4.24 million jury verdict against one of the largest natural gas producers in Pennsylvania and ordered a new trial in a lawsuit alleging Houston-based Cabot Oil & Gas Corp. contaminated the well water of two families.

U.S. Magistrate Judge Martin Carlson on Friday set aside the verdict reached a year ago by a jury in Scranton, saying the evidence presented by the Dimock homeowners “was spare, sometimes contradictory, frequently rebutted by other scientific expert testimony, and relied in some measure upon tenuous inferences.”

Carlson also said the plaintiffs presented no evidence that would justify a multi-million dollar award.

The judge, however, declined to decide the case in favor of the company and, instead, ordered a new trial. He said that before any trial, the parties should have settlement discussions with the aid of another judge.

Dimock was the scene of the most highly publicized case of methane contamination to emerge from the early days of Pennsylvania’s natural-gas drilling boom. Dozens of plaintiffs settled with Cabot in 2012, but two families opted to take their case to trial.

The rural community and its fight against fracking, a method used by drilling companies to extract oil and gas from underground rock, also was featured in the Emmy-winning 2010 documentary “Gasland.”

Cabot hailed the judge’s Friday decision, saying in a statement that it had been confident that “once a thorough review of the overwhelming scientific evidence and a full legal analysis of the conduct of the plaintiffs’ counsel was conducted, the flaws in the verdict would be understood.”

The families’ attorney, Leslie L. Lewis of New York City, called the decision “another dark chapter for the victims of oil and gas contamination.” She told The Philadelphia Inquirer that the judge appeared to have ignored the plaintiffs’ arguments.

“It is not clear to me why the court required an entire year to essentially rubber-stamp defendants’ position that they were somehow robbed of a fair trial,” she said.

Dimock residents first reported in 2008 that water from their faucets turned cloudy, foamy and discolored, and it smelled and tasted foul. Homeowners, all of whom had leased their land to Cabot, said the water made them sick with symptoms that included vomiting, dizziness and skin rashes.

A state investigation concluded that Cabot had allowed gas to escape into the region’s groundwater supplies, contaminating at least 18 residential wells. Cabot maintained that the methane was naturally occurring and said the problems in the water wells pre-dated Cabot’s arrival.

In his decision, the judge also said the plaintiffs’ acknowledgements that there had been problems with their water before the company started drilling made it hard to argue that Cabot was the sole cause of any problems. He said their expert witnesses offered at best “inferences that had weak factual support” while failing to contest Cabot’s rebuttal evidence.

After six years, two Dimock Township couples suing Cabot Oil & Gas for allegedly contaminating their well water supply are finally getting their day in court, but they can only present a fraction of the evidence they amassed, a federal judge ruled.

In what he deemed a “sad and shocking spectacle,” U.S. District Magistrate Judge Martin Carlson threw out more than 300 exhibits the Ely and Hubert families sought to present because they failed to disclose them to Cabot’s attorneys until a few weeks before the trial, which is scheduled to begin today in federal court in Scranton.

Nolen Scott Ely, his wife, Monica Marta-Ely, and Raymond and Victoria Hubert,were among 44 Dimock Township residents in Susquehanna County who sued Cabot in November 2009, alleging the company’s drilling for Marcellus Shale contaminated their water with methane. Cabot settled with 40 of the plaintiffs in 2012, but the Elys and Huberts rejected the offer.

Cabot adamantly denies the claims. It contends it met or exceeded standards for its drilling, and that evidence will show it was not the source of any contamination of the wells.

The lawsuit initially sought damages on multiple counts, including negligence, private nuisance, fraud, breach of contract and personal injury. A judge last year let the negligence and private nuisance claims stand, but dismissed the other counts, finding there was insufficient evidence to support them.

The hotly contested case languished in the court system more than six years as the parties battled over multiple pre-trial issues. The Elys represented themselves throughout much of the litigation, but now New York attorney Leslie Lewis represents them.

In a scathing, 29-page ruling issued Feb. 12, Carlson denounced Lewis and her clients for an “unprecedented” failure to abide by court rules that require attorneys for both sides to reveal evidence they plan to present well in advance of trial.

In this case, all pre-trial evidence gathering concluded in August. Lewis filed a pre-trial brief on Jan. 12 that listed 24 exhibits she intended to present at trial. On. Feb. 1, Lewis filed a revised exhibit list that contained 351 exhibits, including 174 documents that had never been previously identified.

Carlson said he found the development “profoundly troubling” as it clearly violated court rules. He granted Cabot’s motion to exclude all documents other than the 24 exhibits that were disclosed on Jan. 12.

The judge said he realizes his ruling is a significant blow to the Elys and Huberts, but he had little choice as he has an obligation to protect Cabot against being “ambushed with a trial-by-surprise.”

“On the eve of trial, the court is presented with a surprising and troubling development: the belated disclosure by plaintiffs of thousands of pages of exhibits,” the judge wrote. “The rules governing pretrial and trial practice are in place to prevent precisely the specter that now appears ... We are obliged to ensure that one party’s failure to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.”

Contacted Friday, Lewis said in an email that Carlson did what he thought was correct, but she and her clients “do not necessarily agree with the entirety of the decision of the court or the severity of the court’s penalty.”

“It is plaintiffs’ position that their actions with respect to exhibit disclosure were neither willful nor intentional nor prejudicial to Defendant Cabot Oil & Gas Corporation’s defense in this matter,” Lewis said.

While the ruling on evidence hurts the Elys and Huberts case, Carlson ruled in their favor on another important issue — a dispute regarding whether jurors will be told of a state law that says a driller is presumed to be responsible for water contamination if the water supply is within 1,000 feet of the oil or gas well and the pollution occurred within six months after the drilling was completed.

Jeremy Mercer, one of Cabot’s attorneys, argued jurors should not be told about that statute because it applies only to state administrative enforcement actions and should not be permitted as evidence in a civil lawsuit.

Carlson rejected that argument, but said he will reconsider the matter after he hears evidence at trial. He then will decide if it will be presented to the jury when the panel begins deliberations.

If Cabot is found responsible for contaminating the wells, the Elys and Huberts can seek compensation for the loss in market value of their properties and for inconvenience and loss of enjoyment of their property. If they prevail on the negligence claims, a separate proceeding will be held to determine if they are entitled to punitive damages. Jury selection is scheduled to begin at 9:30 a.m.

By Phelim McAleer
 
The Ely family in Dimock, Pennsylvania is suing an oil and gas company alleging they contaminated their water well through fracking. Dimock has become a focal point for anti-fracking activists with many calling it “Ground zero” for pollution. Dimock and the Ely's have been featured in national and international news reports and documentaries. Celebrities such as Mark Ruffalo, Yoko Ono, and Susan Sarandon have visited the tiny community to sympathize.
 
But yesterday in the first day of the trial, facts started to emerge that show the truth is much different from the previously reported stories. Questioned under oath, Scott Ely's claims look a lot less certain and he looks a lot less credible. Below are five facts that emerged during the first day that show Scott Ely may have been lying about his water being contaminated by fracking.

1. What the Frack?

It's bad when your own lawyer admits that there is no scientific evidence to backup a central allegation of your case, but that’s what happened on the first day of the trial. Scott Ely's lawyer stated clearly:
“This is not a case....about toxic materials ending up in the water. We do not have proof of that. We don't have proof of that. This is not about fracking fluid appearing in the water. Hydraulic fracturing materials, we don't have proof of that.”

2. Dirty All the Time

Instead Scott Ely is claiming that Cabot Oil and Gas has made his beautiful, pure, pristine Pennsylvania water undrinkable. He said they polluted it with methane and made it dirty, brown, smelly, and completely unusable when they started drilling in 2008. Except under cross examination Mr Ely had to admit that prior to getting his new well drilled he got his water from a spring at the house that was so dirty none of his family would drink it. In fact he was forced to admit that it was so dirty that his wife would only use bottled water for cooking. It was so bad he used bottled water up until 2003.

3. No Case(ing)

But then Scott Ely got a water well drilled in 2003. The idea that this well supplied pristine water until it was polluted by the evil oil and gas company very quickly withered away under a few pointed questions. It turns out that Ely's water well is 300 ft deep but is only lined for 40ft. After that it is open to the earth, allowing clay and animals and anything else that comes out of the ground to fall into the water. It seems he has no case and no casing on his well.

4. Million Dollar Listing - PA

Mr. Ely does not behave as if his water has been polluted and the health of his wife and children put in peril. He told the jury that it has been a “nightmare” having to travel 17 miles to a nearby town in a water tanker to bring drinkable and usable water to his house. They were always short of water, he complained. The family even had to share bathwater, he said. Most of us faced with such hardship--unusable, undrinkable water that’s damaging our children’s health and happiness--might give up. But not Scott Ely. Instead he and his wife decided to build a $1m, 7000 sq ft, twenty-two bedroom house on the lot despite claiming it had unusable, dirty, dangerous water. In short, their behavior was not the behavior of people who believed their water was polluted.

5. Dimock Time Machine

Scott Ely told three different people that they started to notice the water smelling and tasting bad in August 2008--and these were not just casual conversation. Ely confirmed this start date in a hand written declaration to his lawyer, and he repeated the claim to a hydro-geologist investigating the water. He even told a doctor that the problems with his water started in July 2008. The problem for his case is that Cabot did not start drilling the gas well he says polluted his water until late Sept/early October 2008. So unless there was a Dimock time warp, Scott Ely's water problems started before the fracking for gas.
 
And that’s just day one of the trial. Scott Ely's cross examination continues today.
By Phelim McAleer
 
In a shocking admission that undermines much of the anti-fracking narrative pushed by environmentalists, a lawyer for plaintiffs suing an oil and gas company in Dimock, Pennsylvania has admitted the water in the area is not contaminated with fracking fluid.
 
The admission came in the opening argument by lawyer Leslie Lewis for two families who claim their water was contaminated by fracking.
 
“This is not a case — this is not a case about toxic materials ending up in the water,” she told the jury.
 
“We do not have proof of that. We don't have proof of that. This is not about fracking fluid appearing in the water. Hydraulic fracturing materials, we don't have proof of that,” Ms Lewis added.
 
Dimock has been characterized as “Ground Zero” for fracking contamination of water. It has featured in the documentaries Gasland 1 & 2 and has been the subject of national and international news reports.
 
However Pennsylvania DEP and Federal EPA scientists have all failed to find contaminants in the water despite vigorous, multi-year testing.
 
These findings have now been confirmed by the plaintiffs’ lawyer who said they had no proof of fracking fluid contamination. She said they were taking the case against Cabot Oil & Gas because the water was “undrinkable.”
 
Phelim McAleer is the director of FrackNation - a documentary on fracking
By Phelim McAleer
 
The Ely and Hubert families of Dimock, Pennsylvania are suing Cabot Oil & Gas for allegedly polluting their water. The case is hugely significant because Dimock has been characterized as “Ground Zero” for water allegedly contaminated by fracking. It was featured in the documentaries Gasland 1 & 2 and has been the subject of national and international news reports. Countless celebrities have also pushed the lie that Dimock’s water was contaminated with fracking fluid.
 
But the case has thrown serious doubts on the narrative being spun by activists. The plaintiffs’ case is looking very shaky, indeed. Here are seven key points that have emerged as the case enters its second day.

1. A Willful Failure to Comply

Judge Martin Carlson is a no-nonsense stickler for the truth and won't stand for theatrics or rule-breaking--which will make it more difficult for plaintiffs/activists to win their case. He has already warned the plaintiffs to tell their supporters to stop carrying bottles of brown water around the courtroom.
Judge Carlson criticized the plaintiffs’ lawyer for attempts to introduce an enormous amount of “evidence” at the last minute, describing it as “extraordinary, unprecedented, unexplained and profoundly troubling development.”
And they had no excuse for their rule breaking.
“Indeed what is most notable and disappointing, is that the plaintiffs have provided no cause of justification for this behavior” and it was simply “a willful failure to comply” with the rules.

2. It’s All About Choices

The judge may not like the behavior of the plaintiffs’ lawyers, but he really, really doesn't like the behavior of the plaintiffs. The Ely and Hubert family have generally cast themselves as honest people who have been the victims of corporate malfeasance, but the trial has not been running two days and already the judge has made different observations about their honesty and character. The judge said their “profoundly and wholly unworkable approach” was doing “a grave disservice to their own counsel.” He said the Ely and Hubert families created a debacle “in part by concealing information from the court, opposing counsel and their own attorneys.” The behavior was “clearly improper,” he added. The lawyers and the complaining families have been guilty of “an inexplicable failure to engage in even minimal transparency.”
And just as a kicker, he said the plaintiff families “have made regrettable choices in this litigation,” choices that included “multiple and material episodes of concealment of information...from opposing counsel, the court and even their own counsel.”

3. The Man with Kaleidoscope Eyes

But enough of their behavior. What about the case? The evidence? Well, there again the judge said some of the evidence being produced by the plaintiffs is extremely dodgy. He described parts of it as “completely unexplained, and wildly kaleidoscopic...voluminous, contradictory, cryptic, confused, and confusing.” And the contradictions keep coming. The Ely family initially told experts the water started to go bad in July/August 2008--except that Cabot didn’t start drilling the offending well until September/October 2008. In addition, Scott Ely admitted his water was always dirty--long before fracking--and that his water well is mostly unlined, allowing dirt and other material into his water supply. Additionally, he turned down an offer from Cabot of a filter to clean up his water.

4. No Fluids

In a huge blow for the anti-fracking movement, the plaintiffs’ lawyer admitted there is no scientific evidence that fracking fluid has contaminated water in the area. Dimock has been described by activists as “Ground Zero” for fracking contamination. It has been featured in Gasland 1 & 2 and in countless documentaries and news reports across the US as a place devastated by fracking. However, in the opening statement, the plaintiffs’ lawyer--who is suing an oil and gas company--admits that they can’t sue on those grounds. The admission came from lawyer Leslie Lewis, counsel for the two families who claim their water was contaminated by fracking. “This is not a case — this is not a case about toxic materials ending up in the water,” she told the jury. “We do not have proof of that. We don't have proof of that. This is not about fracking fluid appearing in the water. Hydraulic fracturing materials, we don't have proof of that,” Ms Lewis added.

5. Cake Is Really Nice

The plaintiffs like to have their cake and eat it, too. It emerged that one of the plaintiffs is a former Cabot employee and was receiving an oil and gas royalty check as they were suing the company. Scott Ely worked for a subsidiary of Cabot Oil & Gas as a bulldozer driver at the time he made his complaint and was receiving a royalty check also.

6. Taxing Questions

Scott Ely has been married three times, had numerous jobs and businesses, but it seems he is no stranger to corporate difficulties. Following a “management issue,” he closed a dental business he was running, owing the IRS $90,000. The debt exists from 2003. He told the court that he has not “walked away from it,” but as yet he has not paid the bill.

7. Oranges Are Not the Only Fruit

On the first day of the trial, the judge ate just almonds and oranges for his lunch. The court staff admonished him for eating so little.

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