Environmental Toxic Torts Blog : Colorado Property Damage, Class Action & Fracking Lawyer & Attorney : Davis Graham & Stubbs Law Firm

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Often Daubert or similar motions are the key pre-trial motions in environmental toxic tort cases because exclusion of an expert, particularly the plaintiff’s causation or damages expert, provides the basis for a summary judgment in favor of the defendant. Player v. Motiva Enterprises, LLC. 240 Fed. Appx. 513 (3^rd Cir. 2007), is such a case. Plaintiffs owned or formerly owned 27 parcels of residential real estate in Gloucester Township, New Jersey. They claimed that leaks at a nearby gas station contaminated groundwater under their properties. Twenty six of the properties depended upon wells for drinking water. Of those properties, the wells on eighteen properties showed no contamination. Wells on the remaining eight properties showed some VOC contamination but the amounts detected were within the permissible range for drinking water under New Jersey’s ground water Quality Standards. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Often, plaintiffs in environmental toxic tort cases seek to recover property damages based on a theory that contamination or other environmental conditions have imposed a “stigma” on the property. Sometimes the property is itself contaminated or formerly contaminated. Other times the property is only in proximity to contamination or the other environmental condition.  The latter situation is often a difficult one for plaintiffs to convince courts to allow.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Goodstein v. Continental Casualty Co., No. 05-35805, (9^th Cir. December 3, 2007), a property owner sought reimbursement under his Comprehensive General Liability policy for a discount he provided to purchasers of two contaminated Washington properties. The purchasers did not commit to clean up the properties on their own, but they did agree to be responsible for any cleanup that might be required in the future by government agencies or potential purchasers. Under Washington state law, if Mr. Goodstein had actually cleaned up the properties, his CGL policy would have covered the costs of those cleanups. However, the insurers rejected Mr. Goodstein’s assertion that the price discounts were the functional equivalent of cleanup costs and should be reimbursed under the CGL policy. Mr. Goodstein sued, asserting claims for breach of defense and indemnity duties under the policy. The trial court granted the insurers summary judgment on Mr. Goodstein’s claims. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On January 7, 2008, following one of the longest jury trials ever held in Kansas, jurors in a class action property damage lawsuit returned a verdict in favor of defendants BP Corp. North America, Inc., BP America Inc., BP Products North America Inc., Atlantic Richfield Company and BP America Production Company. The litigation concerned a former Amoco oil refinery that operated in Neodesha, Kansas from 1897 until it was dismantled in 1970. Defendants had been conducting a cleanup of the site. Plaintiffs included the City of Neodesha, the local school district, several local businesses, and residents. The plaintiffs claimed that most of the town overlies groundwater contamination from the refinery consisting of petroleum hydrocarbons and metals such as arsenic, lead and mercury.   Plaintiffs’ claims included breach of contract and fraud as well as typical property tort claims. Property valuation experts were: Dr. Louis Wilde, LECG, for the defendants and Dr. John A. Kilpatrick, Greenfield Advisors, for the plaintiffs. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link