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Baker v. Anschutz Exploration Corp.

United States District Court, W.D. New York

December 17, 2014

JASON BAKER, JOHN BREWSTER, JOANN BREWSTER, MAXINE CONDON, KAREN FARRELL, BROOKS LIDDIARD, JANET LIDDIARD, JAMES MCDERMOTT, PAUL MOREY, DONETTA MOREY, JOE TODD, BONNIE TODD, TOM WHIPPLE, PAULINE WHIPPPLE, Plaintiffs,
v.
ANSCHUTZ EXPLORATION CORPORATION, JOHN AND JANE DOES 1 THROUGH 100, Defendants

For Plaintiffs: Jose A. Almanzar, Esq., Katherine E. Mayo, Esq., Marc J. Bern, Esq., Tate James Kunkle, Esq., Bettina L. Hollis, Esq., Napoli Bern Ripka Shkolnik & Associate, LLP, New York, NY.

For Defendant: Michael N. Mulvania, Esq., Aaron M. Panner, Esq., Mark C. Hansen, Esq., Michael J. Guzman, Esq., Saritha K. Tice, Esq., Kellogg Huber Hansen Todd Evans & Figel PLLC, Washington, DC; Christopher D. Thomas, Esq., Nixon Peabody LLP, Rochester, NY.

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DECISION AND ORDER

CHARLES J. SIRAGUSA, United States District Judge.

INTRODUCTION

This action alleging negligence and other related causes of action involves a gas drilling company that Plaintiffs allege has contaminated their residential water wells through its gas exploration in Chemung County, New York. The case was removed by Defendant Anschutz Exploration Corporation (" Anschutz" ) and is now before the Court on Anschutz's motions seeking an order granting summary judgment, ECF No. 132, and striking Plaintiffs' expert testimony, ECF No. 133. For the reasons stated below, both applications are granted.[1]

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FACTUAL BACKGROUND

Plaintiffs are residents of Chemung County, New York State, who rely on individual residential wells for all their water. Anschutz operates two natural gas wells, Dow # 1 and Dow # 2, drilled in 2010. Anschutz did not use hydraulic fracturing to construct either well. Plaintiffs claim that Anschutz's Dow # 1 well is causing natural gas contamination of their well water. Dow # 1 was drilled vertically to a depth of 9,023 feet, and at that point, makes a roughly ninety-degree turn and continues to a depth of 9,718 feet with a total measured length of 12,840 feet. At the surface, the well is approximately 2,800 feet (about half a mile) fro Plaintiffs' homes.

Drilling of Dow # 1 commenced on April 26, 2010, and was completed on June 18, 2010. During the design and permitting phase, the New York State Department of Environmental Conservation (" DEC" ) and Anschutz were aware that local residents obtained their water supply from wells. They were also aware that shallow sources of naturally occurring methane gas might be encountered during the construction of Dow # 1. Consequently, the DEC permitted and Anschutz designed the well with numerous redundant mechanical features to ensure that shallow methane could not travel up the vertical portion of the well--either inside or outside the steel casing.

During construction, DEC's Joseph Yarosz (" Yarosz" ) was responsible for regulatory supervision of the well's construction. He inspected both the Dow # 1 and Down # 2 wells in person more than fifty times during construction. Yarosz testified at his deposition that Anschutz satisfied all permit conditions and complied with all applicable laws and regulations during the construction of both wells. Yarosz also testified that Anschutz encountered no material problems in the wells' construction. Further, Plaintiffs' hydrology expert, Paul Rubin (" Rubin" ), agreed during his own deposition that the vertical portion of Dow # 1 is not the source of any gas leaks or contamination, Rubin Dep. 248:7-13, and that Anschutz acted reasonably in construction of Dow # 1, the only well Plaintiffs cite as a source of their water contamination. Further, Plaintiffs' well construction expert, Gary Gartenberg, also agreed that Anschutz did nothing wrong in construction of the Dow # 1 well.

More than two months after Dow # 1 was completed, Plaintiffs Joseph Todd and Tom Whipple made complaints about turbidity and methane problems in their water wells. They reported those conditions to the Chemung County Health Department in September 2010. On September 13, 2010, the Chemung County Health Department referred their complaints to the New York DEC. Yarosz investigated the complaints. During his investigation, Yarosz had dozens of interactions with residents about their complaints, including personal visits, phone calls and email correspondence. He sampled the water, interviewed those complaining of contamination, and spoke with area neighbors, and well drillers. In November 2010, DEC issued a fact sheet indicating that gas in area water wells had been common for years prior to Anschutz's exploration activities. Yarosz concluded that since methane was not toxic, residents should install vented well caps on their wells. DEC found that the Dow wells were constructed in such a manner as to make it highly unlikely that gas from deeper formations could migrate up the wellbore and into any water aquifers. DEC stated that:

The cause of the problems are likely associated with seasonal low water levels in a densely populated area which may have produced an intense draw down of the aquifer in the area known to have shallow, naturally occurring gas. The hydrostatic pressure of the column of

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water in the well would decrease as water levels lowered allowing gas to more freely enter the water well.

Memorandum from Linsa Collart, New York State Department of Environmental Conversation, to Bradley Field and Jack Dahl, at Horseheads-001955, Jan. 31, 2011, ECF No. 133-12 (attached to Mulvania aff. as Ex. 10).

Plaintiffs' expert, Rubin, also investigated the water in Plaintiffs' wells, measuring its pH, and sending a sample to a laboratory to be analyzed. He also researched the seasonal fluctuation in groundwater levels in 2010. Rubin disputes that there were unusual groundwater level fluctuations in 2010 that would reflect unusually high temperatures or explain the decline in Plaintiffs' water quality.

DEC noted that as the aquifer recharged with water later in the fall, conditions in the water wells improved. At a December 2010 meeting with some of the plaintiffs, Chemung County commissioned isotopic analysis of the natural gas from Dow # 2 (a gas well located at the same site as Dow # 1), as well as the natural gas in the water wells of Plaintiffs Todd and McDermott. Similar to Dow # 1, Dow # 2 was drilled into the same Black River formation at a depth of approximately 10,000 feet. At the time of the testing, Dow # 1 had become inaccessible due to the presence of completion operations equipment. See Isotech Letter at Horseheads-001947, ECF No. 132-15 (attached to Guzman Decl. as Ex. 12); Dow 1 Chronology at 14-15, ECF No. 132-7 (attached to Guzman Decl. as Ex. 4). Isotech Laboratories, Inc. (" Isotech" ), performed the tests.

Anschutz's experts, independent consultant[2] Edward Hinchey, P.G. (" Hinchley" ), and hydrology professor Donald Siegel, Ph.D. (" Siegel" ), analyzed the isotopic test results obtained by the county health department. In their report, they wrote that:

The DOW wells are completed in the Black River formation. Natural gas from the wells completed in the Black River formation cannot rise from 9,900 feet (nearly two miles) deep to the surface water aquifer. The lowest pressure in the Black River formation occurs near the well bore of the DOW wells -- any water or gas movement would have to be from the formation (under high pressure) to the wellbore that is connected to the atmosphere. Hydraulics aside, we can independently test whether the natural gas at Plaintiffs' wells consists of Black River formation gas by conducting isotopic analysis of the carbon and hydrogen in the methane.
* * *
By measuring the amounts of carbon and hydrogen isotopes in methane, their isotopic differences can be used to fingerprint methane origins. This fingerprinting method is widely accepted and has been used for over 50 years in the environmental/natural, medical and pharmaceutical sciences after first being used by Schoell in 1980, and followed by many others ( e.g. Chung, 1988; and Breen, 2007).

Big Flats Groundwater Investigation 6-5-6-6. Isotech's test results showed that Plaintiffs' samples contained different proportions of methane, ethane, and propane than the Dow # 2 well. Isotech concluded that the gas in Plaintiffs' wells could not have come from Dow # 2. Plaintiffs contend that the results are irrelevant because they are not citing Dow # 2 as the source of contamination, and Isotech's results do not adequately take into account

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gas mixing. As a result, Plaintiffs assert that Isotech's testing is not an accurate measure of the origins of the gas in Plaintiffs' water wells.

Prior to commencing this action in February 2011, Plaintiffs performed no water quality testing of their wells, but Plaintiff Todd anecdotally related that he had to change a three-month particulate filter on a daily basis. Following discovery, Plaintiffs now allege that contamination from the Dow # 1 well consists of natural gas, iron, and manganese. Their complaint raises causes of action for negligence, negligence per se, nuisance, premises liability, trespass, a violation of New York Navigation Law, strict liability, a violation of New York General Business Law § 349, fear of developing cancer, and a cause of action for future medical monitoring. In their prayer for relief, Plaintiffs seek damages of $150 million for each cause of action, and exemplary or punitive damages of $500 million, plus costs.

During the drilling of Dow # 1, Anschutz obtained gas samples from several different depths, ranging from 167 feet, to 9,981 feet, and six other distances between those two. Anschutz had the samples tested by GeoMark Research, Ltd., for which performed a carbon isotopic analysis on the samples. During discovery, Anschutz obtained additional gas samples from eight of Plaintiffs' water wells. Isotopic testing of those samples by Isotech revealed that the samples of gas obtained in drilling Dow # 1 from the relatively shallow depths of 167 to 2,138 feet had carbon isotopic ratios similar to the carbon isotopic ratios measured in Plaintiffs' water wells. Plaintiffs contend that this evidence shows gas mixing. However, Anschutz states that during the drilling of Dow # 1, it isolated the well from those pockets of shallow gas by using steel casing, cement, and other devices. Testing also revealed that the deeper gas samples, from 8,713 feet and deeper, are much lighter in carbon than any of the natural gas found in Plaintiffs' water wells.

Anschutz's experts, Siegel and Hinchey, analyzed the isotopic testing results of the gas from Dow # 1 and Plaintiffs' water wells and concluded:

As the Dow # 1 isotopic samples get deeper, the carbon isotopic ratios diverge markedly from Plaintiffs' well samples. The Dow # 1 mud gas at the start of the Trenton horizon and lower (that is, the Dow # 1 samples from 8,713 feet and deeper) are much lighter in carbon tha[n] any of the gas in Plaintiffs' water wells. Simply stated, just as with the Dow # 2 gas, the gas in Plaintiffs' water wells did not originate in the deep gas-producing formations of Dow # 1.

Siegel Suppl. Rep. at 18, ECF No. 132-19 (attached to Guzman Decl. as Ex. 16). Citing to the Mayo Decl., Oct. 21, 2014, ECF No. 136-2, Ex. N at 17, an article by Anthony W. Gorody entitled " Factors Affecting the Variability of Stray Gas Concentration and Composition in Groundwater," Plaintiffs assert that this conclusion is uninformed by analysis of multiple samples from baseline groundwater investigations, potential point sources, and impacted water sources. They further assert that taking only one sample of the gas in Plaintiffs' water wells on one day does not reliably show the origin of the gas in the water wells. Further, although Anschutz's experts contend that " the isotopic testing demonstrates--conclusively--that the methane in Plaintiffs' water wells did not originate in the deep geological formations into which Dow # 1 and Dow # 2 were drilled," Siegel Suppl. Rep. 15. On the other hand, Plaintiffs' expert, Rubin, asserts that as gases migrate upward through the earth, they pass through various gas-bearing horizons, each with its

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own isotopic signatures, making Anschutz's isotopic testing inadequate.

With regard to the health monitoring cause of action, Plaintiffs stress that hemo-chromatosis, a chronic condition in which the body absorbs too much iron over a period of years, can lead to liver and colon cancer. Anschutz, however, counters that even if the contamination is attributable to Dow # 1, the risk of developing cancer is de minimis.

Also listed on the docket of this case is non-party Schlumberger Technology Corporation, which provided limited cementing services at the two Dow wells. After Schlumberger moved to quash Plaintiffs' subpoenas, Plaintiffs withdrew the subpoenas. It does not appear that Schlumberger has been further involved in this litigation and is not relevant to the two motions under consideration here. Further, it does not appear that Plaintiffs have identified the John and Jane Does 1 through 100, so the Court will disregard those placeholder defendants for the purposes of this motion.

STANDARDS OF LAW

Summary Judgment Standard

Summary judgment may not be granted unless " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). " While the absence of any genuine dispute of material fact is a precondition for summary judgment, the crux of a summary judgment analysis is whether the movant has established entitlement to judgment as a matter of law." 11-56 Moore's Federal Practice - Civil § 56.20 (Matthew Bender 2014). " In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996).

The burden then shifts to the non-moving party to demonstrate specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. " [F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not 'genuine' issues for trial." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996). Summary judgment is appropriate only where, " after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party ." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).

The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed.R.Civ.P. 56(c)(1)(B). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, " to raise the

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strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

Defendant's Motion in Limine to Exclude Expert Testimony of Paul Rubin

At the outset, the Court must decide whether it should consider the expert testimony of Rubin which Baker submitted in opposition to Anschutz's summary judgment motion. Specifically, Anschutz maintains that Rubin " a consistent opponent of all natural gas exploration, performed no scientific work to support his theory of causation." Anschutz' Mem. of Law 5.

However, Anschutz contends that Rubin's testimony is inadmissible pursuant to Federal Rule of Evidence 702. The admissibility of expert testimony in the federal courts is governed principally by Rule 702, which provides in pertinent part as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. Rule 702 embodies a liberal standard of admissibility for expert opinions, representing a departure from the previously widely followed, and more restrictive, standard of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that the Frye test of general acceptance in the scientific community was superseded by the Federal Rules); Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (observing departure, under Federal Rule, from the Frye standard).

The shift under the Federal Rules to a more permissive approach to expert testimony, though, did not represent an abdication of the screening function traditionally played by trial judges. To the contrary, as Daubert explained, Rule 702 governs the district court's responsibility to ensure that " any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court clarified that, whether a witness's area of expertise was technical, scientific, or more generally " experience-based," Rule 702 required the district court to fulfill the " gatekeeping" function of " mak[ing] certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Daubert enumerated the following factors that, while not constituting a " definitive checklist or test," a district court might consider in evaluating whether a proffered expert opinion has the required indicia of scientific reliability: whether a theory or technique had been and could be tested, whether it had been subjected to peer review, what its error rate was, and whether scientific standards existed to govern the theory or technique's application or operation. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. In addition to setting forth these criteria for testing an expert's methodology, the Supreme Court has also stated that reliability within the meaning of Rule 702 requires a sufficiently rigorous analytical connection between that methodology and the expert's conclusions. " [N]othing in either Daubert or the Federal Rules of Evidence requires a district

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court to admit opinion evidence which is connected to existing data only by the ipse dixit [3] of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) [(" Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." )].[4] Thus, we have previously stated that " when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266.[5]

Even after determining that a witness is " qualified as an expert" to testify as to a particular matter, Fed.R.Evid. 702, and that the opinion is based upon reliable data and methodology, Rule 702 requires the district court to make a third inquiry: whether the expert's testimony (as to a particular matter) will " assist the trier of fact." We have consistently held, in that respect, expert testimony that " usurp[s] either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it," United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991), by definition does not " aid the jury in making a decision" ; rather, it " undertakes to tell the jury what result to reach," and thus " attempts to substitute the expert's judgment for the jury's," United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994).
In addition to the requirements of Rule 702, expert testimony is subject to Rule 403, and " may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or mis-leading the jury." Fed.R.Evid. 403. Indeed, the Supreme Court, echoed by members of our own court, has noted the uniquely important role that Rule 403 has to play in a district court's scrutiny of expert testimony, given the unique weight such evidence may have in a jury's deliberations. See, e.g., Daubert, 509 U.S. at 595, 113 S.Ct. 2786 ( " 'Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.'" ( quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991))); United States v. Young, 745 F.2d 733, 766 (2d Cir. 1984) (Newman, J., concurring) (noting that " the very breadth of the discretion accorded trial judges in admitting [the expert opinion of a detective testifying as to the criminal nature of a defendant's

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activities] under Rules 702 and 403 should cause them to give the matter more, rather than less, scrutiny. A trial judge should not routinely admit opinions of the sort at issue here and should weigh carefully the risk of prejudice." ).

Nimely v. City of New York, 414 F.3d 381, 395-97 (2d Cir. 2005) (footnote omitted. " The inquiry is a flexible one, and district courts enjoy considerable discretion in deciding on the admissibility of expert testimony." United States v. Farhane, 634 F.3d 127, 158 (2d ...


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