Well contamination trial opens

TIMES-SHAMROCK PHOTO/MICHAEL MULLEN Scott Ely holds a glass of brown water that came from his 300 ft. deep water well at his Dimock property.

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.

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