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

Filing 629

MEMORANDUM ORDER re: 614 MOTION to Clarify Regarding Plaintiffs' Damages filed by Cabot Oil & Gas Corporation. Signed by Magistrate Judge Martin C. Carlson on October 21, 2015. (kjn)

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

:
:
:
:
:
:
:
:

Civil No. 3:09-CV-2284
(Judge Jones)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Now pending in this action is the defendants’ motion to clarify (Doc. 614.) our
July 24, 2015, ruling (Doc. 609.) on the plaintiff’s motion for an order granting the
plaintiffs “leave and permission to offer evidence of, and request damages for,
inconvenience and discomfort as a result of damage to their property, including
contamination of their private drinking water supply . . . .” (Doc. 599.) (emphasis
added.) As we construed it, in that motion the plaintiffs did not seek to amend the
complaint to include new substantive claims or even fundamentally different theories
of relief than those already sought in the operative amended complaint. Instead, the
plaintiffs requested leave to file an amended complaint that sets forth the three words
“inconvenience and discomfort,” in the ad damnum clause of the amended complaint.

While we denied this motion in our July 24 ruling, we did so in a fashion which
endeavored to make it clear that we believed the issue of inconvenience and
discomfort in the use of this property has been, and remains at the heart of this
lawsuit. As we observed:
Moreover, nothing . . . persuades the Court that the plaintiffs are now
somehow prevented from presenting evidence, or argument, or pursuing
damages for claims that they were, in fact, inconvenienced or
discomfited since those claims are hardly distinct from the damages
claims that have long been part of this case. Thus, we have not been
pointed to any case that explains that “inconvenience and discomfort”
damages are entirely separate and distinct from damages assessed for the
“loss of use and enjoyment” of real property or for “loss of quality of
life”, or that there is some dramatic difference between these claims that
turns on entirely separate jury instructions. Thus, we do not perceive
any sound basis to prevent the plaintiffs from explaining how they were
inconvenienced or discomfited when they present evidence in support
of their claims that they suffered in a variety of ways due to the
defendants’ alleged negligence.
These claims for loss of use and enjoyment have, as the defendants
would note, been part of this case for more than five years and have,
presumably, been the subject of discovery by the parties. Nothing about
those claims can reasonably be expected to come as a surprise at this
time, and we are thus hard pressed to understand how or why the
plaintiffs should be prevented from explaining how they have been
inconvenienced or made uncomfortable through the defendants’ alleged
invasion of the plaintiffs’ interest in the use and enjoyment of their
property. Indeed, courts have recognized that these kinds of damages
bear substantial relation to one another. See, e.g., Dalton v. McCourt
Elec., LLC, Civil No. 12-3568, 2013 WL 1124397, at *2 (E.D. Pa. Mar.
19, 2013) (“[I]t is well established under Pennsylvania law that a
property owner is entitled to damages for the loss of the use of the
property and the related inconvenience and discomfort.”) (emphasis
2

added); see also Restatement (Second) Torts § 929(1)(b) and (c)
(recognizing “the loss of use of the land, and discomfort and annoyance
to him as an occupant” as compensable damages).
In sum, although we do not find that the plaintiffs have demonstrated
good cause to justify setting aside the Court’s prior case management
order to allow re-opening of the pleadings at this late stage of this
action, we also do not find that the amendment the plaintiffs seek here
– the inclusion of the words “inconvenience and discomfort” as part of
the ad damnum clause – is actually necessary since these damages bear
such close relation to those already pleaded and sought in this litigation.
Accordingly, the plaintiff’s motion will be denied, but we do not find
that the denial of the motion will have any particular effect on the
evidence or arguments presented at trial, or on the instructions given to
the jury on the damages that the plaintiffs have actually alleged in this
action.
(Doc. 609, pp. 8-10.)
Notwithstanding this statement of our views, the defendants moved for further
clarification of this opinion, noting that our July 24 opinion also stated that: “the
denial of the motion will not preclude the plaintiffs from presenting evidence and
argument on how the defendants’ alleged conduct impaired their ‘use and enjoyment’
of the property, or caused as ‘loss of quality of life’ on the property, or otherwise
caused ‘emotional distress [and] personal injury’ to them, which are claims that have
been a part of this case since the amended complaint was filed on May 17, 2010 –
more than five years ago.” (id., p. 3)(emphasis added.) On this score, the defendants
observed that free-standing personal injury claims are no longer part of this lawsuit,

3

having been disposed of by Judge Jones at an earlier stage of this litigation.
Accordingly, the defendants sought to clarify that this July 24 order did not reopen
these personal injury claims. (Doc. 614.)
For their part, the plaintiffs have opposed this motion to clarify, which they
view as a motion in limine restricting their proof at trial, arguing that:
Plaintiffs would object to the issue of any clarification or confirmation
having the potential effect of disallowing or limiting plaintiffs’ right to
testify regarding physical signs and symptoms they experienced
temporally associated with Cabot’s operations and changes to their
drinking water, which will be for factual purposes only. Based on the
foregoing, plaintiffs respectfully submit that neither a clarification nor
confirmation by the Court is necessary, and, nonetheless, under no
circumstances should an Order, Opinion or Statement issue that has the
potential effect of disallowing or limiting plaintiffs’ right to testify about
physical signs and symptoms as a factual matter during trial.
(Doc. 619, ¶¶3 and 4.)
In considering the instant motion we begin with the proposition that: “ ‘The
general purpose of a motion for clarification is to explain or clarify something
ambiguous or vague, not to alter or amend.’ Resolution Trust Co. v. K PMG Peat
Marwick, No. Civ. A. No. 92–1373, 1993 WL 211555, at *2 (E.D.Pa. June 8, 1993).
Conversely, the purpose of a motion for reconsideration is ‘to correct manifest errors
of law or fact or to present newly discovered evidence.’ Harsco Corp. v. Zlotnicki,
779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90

4

L.Ed.2d 982 (1986) (citation omitted).” Asirifi v. Omni Asset Mananagment, LLC,
No. 2:11-CV-04039 DMC MF, 2013 WL 4858711, at *1 (D.N.J. Sept. 11, 2013).
Guided by these legal benchmarks, we note the following for the parties: No
party has asked us to reconsider Judge Jones’ rulings dismissing the plaintiffs’
personal injury claims. (Docs. 550 and 557.) Therefore, in the absence of a properly
supported motion to reconsider, granted by this Court, those claims remain dismissed.
However, nothing in our July 24 opinion, or this order, is intended, is meant to, or
should be construed as a pre-trial ruling defining the scope of the plaintiff’ testimony
regarding the ways in which the use and enjoyment of their property has been
affected. In short, we will not at this juncture endeavor to prescribe and circumscribe
this element of the plaintiffs’ proof. Instead, we will address these issues if, and
when, they arise in accordance with Rule 401 of the Federal Rules of Evidence which
defines relevant evidence as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Fed. R. Evid. 401. We will
also take into account Rule 403 of the Federal Rules of Evidence which places limits
on the introduction of otherwise relevant evidence, providing that:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of

5

the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403.
In applying these evidentiary rules we will remain mindful of the fact that the
Third Circuit has cautioned that “pretrial Rule 403 exclusions should rarely be
granted. . . . Excluding evidence as being more prejudicial than probative at the
pretrial stage is an extreme measure that is rarely necessary, because no harm is done
by admitting it at that stage.” In re Paoli R. Yard PCB Litig., 916 F.2d 829, 859 (3d
Cir. 1990); see also Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994) (noting that
the Third Circuit’s “cautious approach to Rule 403 exclusions at the pretrial stage .
. . .”). Moreover, the Third Circuit has characterized Rule 403 as a “trial-oriented
rule” such that “[p]recipitous Rule 403 determinations, before the challenging party
has had an opportunity to develop the record, are . . . unfair and improper.” In re
Paoli R. Yard PCB Litig., 916 F.2d at 859. However, “[a] trial court is afforded
substantial discretion when striking a Rule 403 balance with respect to proffered
evidence, and a trial judge’s decision to admit or exclude evidence under [Rule] 403
may not be reversed unless it is arbitrary and irrational.” McKenna v. City of
Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009).

6

With this explanation of the Court’s position, which we trust will be of
assistance to the parties, the clerk is directed to terminate the defendants’ motion to
clarify. (Doc. 614.)
So ordered this 21st day of October 2015.

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

7