While many tort actions have been filed across the country alleging health, drinking water, and other damages from fracking operations – including earthquakes in Arkansas – there have been almost no decisions as yet in terms of liability.  The key issue in these cases is one of causation, both proximate and actual, and the burden plaintiffs need to meet to get the issue before a jury.  The issue of strict liability and whether gas drilling is an “abnormally dangerous” or “ultra-hazardous” activity is a matter up for decision in a pair Pennsylvania cases.  Here is a summary of some the key issues to track and the one important decision to date.

Judge Puts Initial Burden on Plaintiffs

Strudley v. Antero Resources Corporation, 2011-cv-2218 (Denver Dist. Ct. May 9, 2012), was a toxic tort action brought by a family alleging “health injuries” stemming from the operation of three nearby natural gas wells in Silt, Colorado.  The complaint alleged the family’s injuries were due to exposure to air and water contaminated by defendants with “hazardous gases, chemicals and industrial wastes.”

The judge granted the companies’ motion to dismiss based on plaintiffs’ failure to make a prima facie case with respect to both exposure and causation.  This case is significant because the court put the initial burden of production on the plaintiff to make threshold showings before allowing full-blown discovery.

The factors motivating the judge’s decision to adopt this unusual case management order and approach are useful for other defendants facing similar charges.  In part, the court was “cognizant of the significant discovery and cost burdens presented by a case of this nature.”  In placing the initial burden on the plaintiffs, the judge determined they would not be prejudiced because “ultimately they would need to come forward with this data and expert opinions in order to establish their claims.”

The court also relied on findings of an investigation by the Colorado Oil and Gas Conservation Commission that the family’s well had not been contaminated by oil and gas operations.  Also credited was the companies’ sworn testimony that they conducted operations in compliance with all “applicable laws and regulations designed to protect human health and the environment.”  Defendants had supplied empirical evidence that the facilities’ air emission control equipment and prevailing winds “made it unlikely that Plaintiffs or their property were exposed to harmful levels of chemicals from Defendants’ activities.”

In essence, defendants brought forth enough initial evidence to cast doubt on the claims, enabling the court to avoid a protracted and expensive discovery process.  In establishing this process, the court followed Lore v. Lone Pine Corp., 1986 WL 635707 (N.J. Sup. Ct. Nov. 18, 1986), and other cases following that decision.  It will be interesting to see if other state courts begin to follow suit as the number of toxic tort cases involving fracking continue to increase.

Sidebar:  [The court in Strudley had required plaintiffs to come forward with, among other things, expert opinion and supporting data showing:  

  1. the identity of each hazardous substance from Defendants’ activities to which he or she was exposed and which the Plaintiff claims caused him or her injury;
  2. whether any and each of these substances can cause the type(s) of disease or illness that Plaintiffs claim (general causation);
  3. the dose or other quantitative measurement of the concentration, timing and duration of his/her exposure to each substance;
  4. if other than the Plaintiffs’ residence, the precise location of any exposure;
  5. an identification, by way of reference to a medically recognized diagnosis, of the specific disease or illness from which each Plaintiff allegedly suffers or for which medical monitoring is purportedly necessary; and
  6. a conclusion that such illness was in fact caused by such exposure (specific causation).

When all plaintiffs’ expert could come back with was a statement that “sufficient environmental and health information exists to merit further substantive discovery,” the judge held that plaintiffs failed to provide a prima facie case.  “Plaintiffs’ requested march towards discovery without some adequate proof of causation of injury is precisely what the [case management order] was meant to curtail.”]

Post hoc ergo propter hoc

Meaning “after this and therefore because of this,” post hoc ergo propter hoc is a logical fallacy that processes like those established in Strudley are meant to avoid.  As a general matter, it is not enough to show that an alleged adverse effect and a potential cause occurred at relatively the same time.  Negligence suits require plaintiffs to produce evidence that action is capable of producing the adverse effect (general causation) and that it did, in fact, cause the injury complained of (actual causation).

This issue arises in Hearn v. BHP Billiton Petroleum (Fayetteville), 4:11-cv-0474 (E.D. Ark.), a case alleging operation of licensed Class II disposal wells lead to a series of injury causing earthquakes in north central Arkansas.  The link (above) is to the defendants’ summary judgment brief – a short, readable document that makes a strong case for dismissal based on site-specific seismic monitoring systems.  While this case has not yet been decided, it appears that this regulatory conditions imposed by the Arkansas Oil and Commission when it licensed the injection wells may help put a quick end to a case that could otherwise prove difficult to defend were it to go before a jury.

Strict Liability in Pennsylvania

While hydraulic fracturing and associated drilling activities are not considered an “abnormally hazardous” activities in some states, see Williams v. Amoco Prod. Co., 734 P.2d 1113 (Kan.1987), it is still an open question in Pennsylvania.  At least two federal judges in the Middle District of Pennsylvania have deferred ruling on motions to dismiss strict liability charges until the summary judgment stage.  Those cases are Berish v. Southwestern Energy Prod. Co., 763 F. Supp. 2d 702 (M.D. Penn. 2011), and Fiorentino v. Cabot Oil & Gas Corp., 750 F. Supp. 2d 506 (M.D. Penn. 2010).

Strict liability is  easier to prove because the plaintiffs need not show that a party engaged in an abnormally dangerous activity either owed them a duty of care or breached that duty——parties just need to prove causation and damages.  To be considered ultra-hazardous and subject to strict liability (think of blasting), an activity must be shown: (1) to pose a high degree of risk of significant harm to people or property; (2) not to be amenable to reduction of  risk through reasonable care; (3) to be generally uncommon; (4) to be inappropriate for the area where it is carried out; and (5) that its risk of harms outweigh the benefits to the community.

One would think that on (2) and (5) alone, this would have been a relatively easy decision for the courts.  Kansas’ high court already has found natural gas drilling not to be abnormally dangerous.  However, a decision with respect to its status in Pennsylvania is still likely a long way off, as the Fiorentino case is mired in discovery and other procedural matters and there are still defendants in the Berish case that have not yet answered the complaints.