Nolen Scott Ely, et al v. Cabot Oil & Gas Corporation and Gassearch Drilling Services Corproation

Filing 594

MEMORANDUM ORDER /CASE MANAGEMENT TRACK - Jury Selection and Jury Trial are set for 11/30/2015 at 9:30 AM in Scranton before Magistrate Judge Martin C. Carlson. Pretrial Memos due by 9/7/2015. A Pretrial Conference set for 10/5/2015 at 10:00 AM in Scranton before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on May 8, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NOLEN SCOTT ELY, et al.,
Plaintiffs
vs.
CABOT OIL & GAS
CORPORATION, et al.,
Defendants

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Civil No. 3:09-CV-2284

(Magistrate Judge Carlson)

MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This lawsuit was initiated on more than five years ago, on November 19, 2009,
by a group of 44 plaintiffs who collectively filed suit to recover damages for injuries
and property damage allegedly suffered as the result of the defendants’ natural gas
drilling operations in Dimock Township, Susquehanna County, Pennsylvania.
Subsequent to this case being filed, a number of the plaintiffs reached settlement
agreements with the defendants, and at this juncture only 10 plaintiffs remain in the
case. Those remaining plaintiffs include Nolen Scott Ely and Monica L. Marta-Ely,
individually, and as parents and natural guardians of their three minor children (the
“Elys” or “Ely Family”); Nolen Scott Ely, as Executor for the Estate of Kenneth R.
Ely (“Estate”); and Ray and Victoria Hubert, individually, and as the parents and
natural guardians of one minor child, and a child who has since reached the age of

majority, Angel Hubert (“Huberts”) (collectively, “Plaintiffs”).
The claims of the Plaintiffs were recently subject to multiple summary
judgment motions filed by defendants Cabot Oil & Gas Corporation (“Cabot”) and
GasSearch Drilling Services Corporation (“GDS”) (collectively, “Defendants”). In
these motions the Defendants sought summary judgment on an array of the plaintiffs’
claims including claims for breach of contract, fraudulent inducement, private
nuisance, negligence and negligence per se, claims for medical monitoring, and
alleged violations of a variety of Pennsylvania environmental laws, as well as claims
alleging that the Defendants natural gas drilling activities, including hydraulic
fracturing, constituted abnormally dangerous activities subject to strict liability under
Pennsylvania law. Upon a careful review of the parties’ competing summary judgment
submissions, we concluded that summary judgment was appropriate on all claims
brought by the Ely estate. As for the closely related, and factually intertwined
individual claims of the Elys and Huberts we determined that these plaintiffs’ breach
of contract, fraudulent inducement, negligence per se, medical monitoring,
Pennsylvania environmental law, and abnormally dangerous activities- strict liability
claims should be dismissed. We found, however, that the remaining individual
plaintiffs’ negligence and private nuisance claims presented disputed issues of fact
which could only be resolved at trial.
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The parties have now consented to proceed before the undersigned for trial, and
have filed a number of pleadings, and competing motions, relating to the framing of
issues and pleadings as well as the final scheduling of the trial of this matter.
At the outset, the defendants have filed a motion to amend their answer to
include two additional affirmative defenses, recoupment and failure to mitigate. (Doc.
589.) The plaintiffs oppose this amendment arguing that the inclusion of these
affirmative defenses is untimely, inappropriate, and will compel additional discovery.
In addition, each party has submitted motions proposing final case management
schedules in this matter. (Docs. 583 and 584.) As we discern it, the principal areas of
dispute between the parties in this regard involve three primary issues. First, the
parties dispute some minor matters of pre-trial timing with the defendants seeking an
October trial and the plaintiffs requesting a December 1, 2015 trial date. Second, the
parties dispute the scope the scope of any final expert witness discovery, with the
defendants seeking brief additional expert discovery while arguing that the plaintiffs
have waived further expert discovery, a contention the plaintiffs dispute. Finally, the
parties seem to disagree on the locations for any final discovery depositions in this
matter.
On May 7, 2015, the parties completed the submission of pleadings relating to
these issues. (Docs. 583-593.) We are committed to ensuring that all parties receive
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a prompt and fair resolution of the long-standing issues which divide them. In
achieving this goal we will exercise our discretion to balance the competing needs and
positions of the parties in a fashion that is fair and equitable, mindful of the fact that
scheduling decisions by a Magistrate Judge in the sound discretion of the court. Miller
v. Ashcroft, 76 F. App’x 457, 461 (3d Cir. 2003). That discretion is guided, however,
by certain basic principles. Thus, under this abuse of discretion standard, a trial court's
control of its docket will not be disturbed “ ‘except upon the clearest showing that the
procedures have resulted in actual and substantial prejudice to the complaining
litigant’ ” Id., (citations omitted). Moreover, any party challenging a ruling denying
a continuance request, “ha[s] a heavy burden to bear, . . ., as matters of docket control
and conduct of [litigation] are committed to the sound discretion of the district court.”
In re Fine Paper Antitrust Litigation 685 F.2d 810, 817 (3d Cir. 1982)(citations
omitted).
Therefore, upon consideration of these motions and scheduling matters, IT IS
ORDERED as follows:
The defendants’ motion to amend their answer to include the affirmative
defenses of recoupment and mitigation of damages, (Doc. 589), is GRANTED, in part,
as follows:
The defendants shall forthwith file an amended answer in this case.
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This amended answer is filed without prejudice to the plaintiffs filing a motion
to exclude or limit these defenses upon completion of discovery at the time set forth
by this order for dispositive motions, Daubert motions, and motions in limine.
Further, recognizing that the addition of these affirmative defenses at this late
date may potentially require some brief additional factual discovery, we will permit
additional reciprocal factual discovery limited to these affirmative defenses in
accordance with the schedule set forth below. Since the defendants’ motion to amend
their answer, which we have granted, in our view may require the re-opening of
reciprocal discovery for a brief period of time we believe that the defendants’ motion
to amend their answer, which may necessitate brief reciprocal fact discovery, should
also permit reciprocal expert witness discovery by both parties in accordance with the
timetables set forth below.
As for the locations of any further discovery depositions, IT IS ORDERED as
follows: In the first instance, the parties shall endeavor to mutually agree to the most
convenient location for these depositions. If the parties cannot agree, then the
proponent of the deposition may select the site for the deposition in conformance with
the Federal Rules of Civil procedure, and subject to any motion for protective order.
Accordingly, the motions for scheduling orders filed by the parties (Docs. 583
and 584) are GRANTED in part, as follows:
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The following revised deadlines are established for this case, and may not be
modified by the parties. Motions to modify or extend the deadlines established here
shall be made before expiration of the time limits has passed.

Motions will be

granted only on a showing of good cause.
Supplemental Reports of Experts:

June 29, 2015

Response Reports to Experts Report:

July 13, 2015

Close of Reciprocal Fact Discovery on Newly
Filed Affirmative Defenses and Expert Discovery
Limited to the Matters Set forth in this Order:
August 3, 2015
Dispositive Motions Relating to Affirmative Defenses
Raised in the Amended Answer, Daubert Motions,
Motions in Limine and Supporting Briefs Due:
August 3, 20151
Local Rule 16.3 - Attorney Conference and
Exchange of Proposed Jury Instructions
On or before:

August 17, 2015

Pretrial Memoranda Due:

September 7, 2015

*Proposed Jury Charge, Proposed Voir Dire
Questions and Objections to Proposed Jury
Charge:

September 14, 2015

Pretrial Conference and Daubert Hearing,
If Necessary:

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October 5, 2015 at 10:00
A.M. in Scranton,
Pennsylvania.

Further briefing on any motions will be conducted in accordance with the
local rules of this court.
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Trial Brief Due:

November 16, 2015

Trial:

November 30, 2015 at
9:30 A.M. in Scranton.

So ordered, this 8th day of May, 2015.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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