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Ely v. Cabot Oil & Gas Corporation

United States District Court, M.D. Pennsylvania

March 27, 2014

NOLEN SCOTT ELY, et al., Plaintiffs
CABOT OIL & GAS CORPORATION, et al., Defendants


MARTIN C. CARLSON, Magistrate Judge.


This lawsuit was initiated on November 19, 2009, by a group of 44 Plaintiffs who collectively filed suit to recover damages for injuries and property damage allegedly suffered as the result of the Defendants' natural gas drilling operations in Dimock Township, Susquehanna County, Pennsylvania. Subsequent to this case being filed, a number of the Plaintiffs reached settlement agreements with the Defendants, and at this juncture only 10 Plaintiffs remain in the case. Those Plaintiffs include Nolen Scott Ely and Monica L. Marty-Ely, individually, and as parents and natural guardians of their three minor children (the "Elys" or "Ely Family"); Nolen Scott Ely, as Executor for the Estate of Kenneth R. Ely ("Estate"); and Ray and Victoria Hubert, individually, and as the parents and natural guardians of one minor child, and a child who has since reached the age of majority, Angel Hubert ("Huberts") (collectively, "Plaintiffs").

The claims of the Plaintiffs are now subject to multiple pending dispositive motions filed by Defendants Cabot Oil & Gas Corporation ("Cabot") and GasSearch Drilling Services Corporation ("GDS") (collectively, "Defendants"). (Docs. 386, 390, 394, 398.) In the related motion currently before the Court, the Defendants have moved to strike the affidavits and partial supplemental opinions of the Plaintiffs' proposed expert witnesses on the grounds that the supplemental opinions are untimely and are, in fact, entirely new opinions that were not timely disclosed, and thus could not be subjected to rebuttal prior to the Defendants filing their motions for summary judgment in this case. The Defendants also argue that the belated reports should be stricken because to allow consideration of these late-filed reports would substantially prejudice the Defendants who have incurred time and expense in reliance upon the Court's expert report deadline in preparing their dispositive motions. (Doc. 434.)

The Plaintiffs have opposed the motion, arguing that it would be more equitable to modify the case management schedule to have the supplemental reports deemed timely, and to allow additional time for the Plaintiffs' property valuation expert to submit a final valuation report regarding the alleged diminution of the value of the Plaintiffs' surface and subsurface rights as a result of the Defendants' gas drilling activities near the Plaintiffs' property. (Doc. 451.) The Plaintiffs acknowledge that the expert reports and opinions that were provided to Defendants' counsel were "incomplete and not [sic] inconclusive", (id., at ¶ 9), but urge the Court to allow the supplemental opinions in this case because to do otherwise would deal a devastating blow to the Plaintiffs' ability to resist the Defendants' pending motions, an effort the Plaintiffs have been undertaking for some time as pro se litigants.[1] The Plaintiffs' experts have attested that their earlier reports were incomplete as filed, and it is suggested that the fault for this incomplete filing rests with the Plaintiffs' former counsel. In their reply, the Defendants brush aside these arguments as irrelevant, and maintain that the Plaintiffs have engaged in repeated instances of willful disregard of the scheduling orders in this case, and contend that the Court should reject their request out of hand because to do otherwise would result in manifest and incurable prejudice to the Defendants.

Upon consideration, although we agree with the Defendants that the supplemental reports in this case appear in some cases to approach substantive revisions to the Plaintiffs' expert reports as initially filed, we do not agree that the reports should be stricken outright because, in the context of this particular litigation, such an extreme sanction would be inappropriate. We also agree with the Defendants that scheduling orders must be honored, and note that the Plaintiffs have at times approached the case-management deadlines less as commandments than suggestions. However, we also find that to embrace the Defendants' suggestion, and to strike the Plaintiffs' proposed expert reports, could result in the Plaintiffs' claims being significantly impaired. Moreover, given the static posture of this litigation at present, and the fact that this case will not likely be tried for many months, we are confident that the Court, with the benefit of the parties' input, will be able to fashion narrower relief that is more equitable given the circumstances of this case.

Thus, because the question of whether to strike the reports is within the Court's discretion, and because we believe that the Court and the parties can address the late-filed reports in a way that mitigates harm to the Defendants while preserving the Plaintiffs' effort to support their claims in this case, we believe that striking the reports would be an unreasonable sanction, particularly in litigation that is nearly four and a half years old and involves important claims to the parties. Accordingly, the Defendants' motion to strike will be denied, without prejudice to the Defendants filing a motion seeking other, more narrowly tailored sanctions in this case.


In the motion, the Defendants have moved to strike what they characterize as three entirely new expert opinions that were disclosed for the first time as part of the Plaintiffs' opposition to the Defendants' motions for summary judgment, and which were filed nearly ten months after the August 2012 deadline for the Plaintiffs to serve their expert reports had passed. These opinions include the following:

• Opinions of Anthony R. Ingraffea that hydraulic fracturing is an "abnormally dangerous" and "ultra-hazardous" activity for which the oil and gas industry should "automatically" be liable, and that Defendants were negligent in constructing gas wells;[2]
• Opinions of Paul Rubin about the alleged effects of Cabot's drilling activities on the water well located on Nolen Scott Ely's property that was allegedly used by the Huberts, and as to the alleged contamination of water supplies from the disposal of drill cuttings at well sites; and
• A "lost royalties" analysis of Robert D. Congdon, Jr., based on a new methodology and new data sources.

The Defendant argue that these reports should be stricken because the opinions go far beyond what is permissible supplementation under the Federal Rules of Civil Procedure. Perhaps more fundamentally, the Defendants maintain that if the new opinions are allowed to remain in this case, the Defendants will be substantially prejudiced because they will be forced to incur time and expense to address and rebut them, and because the Defendants prepared their summary judgment briefs in this case in part by relying on the Plaintiffs' expert disclosures as they existed after the expert deadline had lapsed in August 2012. The Defendants contend that there is no reason why the Plaintiffs' experts could not have offered the new opinions with their expert reports that were prepared and served in accordance with the August 2012 deadline, which the Defendants observe was almost three years after the suit was first initiated.

A. Procedural Background

Before considering the legal standards in this field, we begin by reviewing some of the halting procedural background of this litigation. This case was first brought by 44 Plaintiffs in a complaint filed on November 19, 2011. The Court initially established February 15, 2011, as the deadline for Plaintiffs to serve their expert reports in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure. (Doc. 24) The Court subsequently extended this period on multiple occasions. (Docs. 206-07, 271, 304-05, 325) As a result of these various modifications to the case-management deadlines in this ...

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