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Feb. 9 — A seven year-old fracking suit by dozens of Pennsylvania homeowners allegedly harmed by Cabot Oil's natural gas drilling operations will advance to trial Feb. 22 in the Middle District of Pennsylvania.
The rebuttable presumption that a well operator is presumed responsible for pollution of a water supply within 1,000 feet of oil or gas operations will apply to this case, Judge Martin C. Carlson's Feb. 5 opinion said.
The court rejected Cabot's argument that the presumption, from 58 Pa. Const. Stat. Ann. §3218, only applied to administrative enforcement actions brought by the state.
It also applies to private litigants in property damage tort cases, the U.S. District Court for the Middle District of Pennsylvania said.
“If the legislature wished to deny this reasonable inference to a whole class of aggrieved citizens, we believe that it would have been incumbent upon the state to act with far greater clarity,” the court said.
The suit was originally filed in 2009 by more than 40 residents as Fiorentino v. Cabot Oil & Gas .
It has since been winnowed by settlements and dismissals. It currently comprises four adult plaintiffs and their children.
The court also barred the plaintiffs and their experts from discussing alleged personal injuries “real or imagined” as well as emotional distress that is “unmoored” from the plaintiffs’ use and enjoyment of their properties.
Also rejected was all mention at trial of potential risks of climate change or natural disasters, such as earthquakes.
Additionally, no party can discus the various settlements accepted by some of the original 44 plaintiffs, or consent decrees or notice of violations by government agencies.
For example, discussion of a $4.1 million escrow fund, which provided $150,000 to plaintiffs, would have “grave potential to create a great deal of mutual confusion and prejudice,” the court said. The twice modified agreement stemmed from a 2009 Consent Order and Settlement Agreement.
Still pending is a defendants' motion to bar the proposed testimony of geology expert Paul Rubin. The court conducted an admissibility hearing Feb. 1 pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).
In October 2015, the court allowed the plaintiffs to depose Cabot's non-testifying water treatment expert because the plaintiffs lacked the ability to obtain the same information from other sources.
The plaintiffs' attorneys include Napoli, Bern, Ripka, Shkolnik in New York.
Fulbright & Jaworski LLP in Canonsburg, Pa., represents Cabot and related defendants.
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The opinion is available at http://www.bloomberglaw.com/public/document/Ely_v_Cabot_Oil__Gas_Corp_No_309CV2284_2016_BL_32740_MD_Pa_Feb_05.
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