Toxic Tort Fracking Litigation Hits Arkansas

Posted on May 26, 2011 by Robert Lawrence

Three new class action toxic tort fracking cases were filed in May with respect to gas extraction operations in the Fayetteville Shale deposits in central Arkansas.  The three cases illustrate the recent trend of attempting to use traditional and sometimes novel toxic tort theories to pursue common law claims against companies involved in all phases of gas extraction operations.   I will address these cases in a series of postings. 

The first class action lawsuit, Tucker v. Southwestern Energy Company, XTO Energy, Chesapeake Energy Corporation and BHP Billiton Petroleum (Fayetteville), LLC, No. 1:11 CV 44 DPM, was filed on May 17, 2011 in U.S. District court for the Eastern District of Arkansas.  The Tuckers own and reside on  a 10 acre parcel in Quitman, Arkansas.  They allege that gas drilling contaminated their 200' deep drinking water well and that it started to smell like "cotton poison".  The putative class is defined as all citizens, residents, and property owners in the State of Arkansas who live and/or own property within a three mile radius of any boreholes, wellheads or other gas extraction operations operated by defendants  "including any other onsite processes including hydraulic fracturing."    

The Tuckers claim that their testing showed a high level of "Alpha Methylstyrene, a flammable and poisonous component which is a known component of fracking fluids."  The Tuckers contend that their soil, groundwater, water well and air are contaminated, and have asserted strict liability, negligence, nuisance, and trespass claims.  Among other things, the plaintiffs state that they have suffered lost use and enjoyment of their property, "severe diminution" in the value of their property, and "fear, shock, mental distress and physical harm. 

 

Plaintiffs' complaint requests $1 million in compensatory damages, $5 million in punitive damages, establishment of an environmental monitoring fund and creation of a medical monitoring fund.    

 

Phillip and Peggy Berry, who also live in Quitman, Arkansas, filed a similar lawsuit in the same federal district court on the same day (Berry v. Southwestern Energy Co., No. 1:11-cv-00045, (E.D. Ark. filed  May 17, 2011).   Two other fracking cases filed in Arkansas in May involve claims for excessive noise and the creation of earthquakes.   These cases will be addressed in future posts.

 

Posted by Robert Lawrence

robert.lawrence@dgslaw.com

303-892-7409

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Class Certification - Medical Monitoring

Posted on November 5, 2008 by Gail Wurtzler

It continues to be difficult to predict the outcome of motions to certify classes in toxic tort cases. In a recent medical monitoring case in West Virginia, Rhodes v. E.I. du Pont de Nemours & Co.,     F.R.D.     , 2008 WL 4414720 (S.D. W. Va. September 30, 2008), the plaintiffs patterned their certification motion on a medical monitoring class settlement involving the same defendant, the same chemical (perfluorooctanoic acid or PFOA or C-8), and similar exposure levels. However, the court refused to certify the class.

See Continue Reading for more detail.

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Cause of Action for Medical Monitoring Rejected by North Carolina Court of Appeals

Posted on February 20, 2008 by Gail Wurtzler

For a number of years, environmental toxic tort plaintiffs have sought to recover future medical monitoring expenses because of alleged exposures to chemicals even though they may not have any present physical injury. Appellate courts in several jurisdictions have recognized such claims. See, e.g., Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993); Meyer v. Fluor Corp., 2007 WL 827762 (Missouri March 20, 2007); Redland Soccer Club Inc. v. Department of the Army, 696 A.2d 137 (Pa. 1997); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). However, appellate courts in other jurisdictions have declined to do so, holding that a present physical injury is a prerequisite. See, e.g., Paz v. Brush Engineered Materials, Inc., 2007 WL 14891 (Miss. Jan. 4, 2007); Henry v. Dow Chem. Co., 701 N.W.2d 684 (Mich. 2005); Hinton v. Monsanto Co., 813 So.2d 827 (Ala. 2001). Often, appellate courts state thatcreation of new causes of action is better left to the legislature. 

In December 2007, the North Carolina Court of Appeals issued a decision in Curl v. American Multimedia, Inc., 654 S.E.2d 76 (N.C. Ct. App. 2007), declining to recognize a medical monitoring claim in the absence of a present physical injury. The plaintiffs in Curl alleged that their drinking water wells were contaminated with trichloroethene and tetrachloroethene. Because of the exposures they had experienced, plaintiffs’ asserted that they were at increased risk of certain illnesses and therefore they needed to undergo periodic medical monitoring to ensure early detection of those illnesses. Plaintiffs had no present illnesses or other physical injuries. The court noted that, to allow such a claim to proceed, it would need to recognize a new cause of action. Because of the “complex policy questions” presented by plaintiffs’ request, and the need to “balanc[e] the humanitarian, environmental, and economic factors implicated,” the court determined that the question was better left to the legislature and not the courts. The court declined to create a new cause of action. 654 S.E.2d at 80-81.

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