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

Filing 712

MEMORANDUM AND ORDER denying 688 Notice re: Reconsideration filed by Monica Laura Marta-Ely, Ray Hubert, Leslie Lewis, Carly Jannetty, Victoria Hubert, Nolen Scott Ely. Signed by Magistrate Judge Martin C. Carlson on February 24, 2016. (kjn)

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

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

MEMORANDUM
I.

INTRODUCTION
Trial in this action commenced on Monday, February 22, 2016, more than

six years after the action was first filed in November 2009. It is expected to take
approximately two weeks to try. In the lead-up to trial, the Court addressed a bevy
of motions that the parties filed seeking a variety of relief, including a motion by
the defendant to exclude witnesses and evidence that the plaintiffs did not
previously or timely disclose during the pretrial phase of this litigation.
With respect to the defendant’s motion to exclude exhibits, after a careful
analysis of the entire history of the litigation, and the sweeping scope and nature of
the belated disclosures, the Court issued a lengthy opinion finding that the belated,

erratic and seemingly ever-changing manner in which the plaintiffs had identified,
revised, and refashioned their exhibits for use at trial was an inexplicable violation
of this Court’s prior orders and case-management guidelines, as well as the Local
Rules. We further found that this was done without adequate cause or showing
that the untimely disclosure would be anything other than gravely prejudicial to the
defendant, who was now being faced with a shifting array of potential exhibits that
the plaintiffs proposed to introduce at trial, where the defendants had in many cases
never even seen the documents at any point over the course of six years. For that
reason, the Court regrettably found itself constrained to rule that the plaintiffs
would be limited to using at trial those 24 exhibits that they had initially and timely
identified for the defendant, as well as any other exhibits to which there was no
objection.1 (Doc. 685.)
Prior to the commencement of trial, on February 16, 2016, the plaintiffs filed
a “Notice” in which they moved the Court for reconsideration of its ruling granting
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The Court separately ruled on the defendant’s motion to exclude witnesses who
had also not been timely identified. With respect to this motion, the Court issued an
order granting the motion in part to exclude the testimony of John Hanger, the former
Secretary of the Department of Environmental Protection, but otherwise denying the
motion to the extent it sought to preclude testimony from neighbors and other lateidentified witnesses whose importance became apparent to the plaintiffs only after the
Court ruled on the motion in limine, and whose existence was not genuinely a surprise
to Cabot, therefore, minimizing potential prejudice. (Doc. 695.)
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the defendant’s motion to exclude the late-produced exhibits, particularly with
respect to the decision to exclude the plaintiffs from introducing evidence of water
test results allegedly obtained as recently as January 2016. (Doc. 688.) The Court
took this matter under advisement and addressed it briefly with the parties prior to
the commencement of trial on February 22, 2016.
The Court has examined its prior ruling, and although the Court well
appreciates the significance of that ruling in this case, the Court perceives no basis
to change or modify that ruling, which was at the time the product of very careful
and considered judgment after taking into account all of the relevant factors in this
case.
II.

DISCUSSION
A motion for reconsideration is a limited tool, and will be granted sparingly.

Its purpose is to correct manifest errors of law or fact or to allow the presentation
of newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Cir. 1985). Accordingly, a party seeking reconsideration must demonstrate at least
one of the following grounds prior to the court altering, or amending, a standing
judgment: (1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court entered judgment; or (3) the
need to correct a clear error of law or fact or to prevent manifest injustice. Max's
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Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River
Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion
for reconsideration is appropriately filed in instances where the court has “patently
misunderstood a party, or has made a decision outside the adversarial issues
presented to the court by the parties, or has made an error not of reasoning but of
apprehension.” Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527
(M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F.Supp.
712 (M.D. Pa. 1996) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion for reconsideration may not be used
as a means to reargue unsuccessful theories, or to argue new or additional facts or
issues that were not presented to the court in the context of the matter previously
decided.

Drysdale v. Woerth, 153 F.Supp.2d 678, 682 (E.D. Pa. 2001).

Furthermore, “[b]ecause federal courts have a strong interest in the finality of
judgments, motions for reconsideration should be granted sparingly.” Continental
Cas. Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).
With these standards and guidelines in mind, the Court has reviewed the
plaintiffs’ motion for reconsideration and finds that there is an insufficient basis to
set aside or modify its ruling excluding the plaintiffs’ trial exhibits other than the
24 exhibits that were timely exchanged and any additional exhibits to which there
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had been no objection. The plaintiffs have not shown that there has been an
intervening change in the law, they have not highlighted additional or new
evidence that was not previously available, and they have not shown a need to
correct a clear error of law. Instead, the plaintiffs argue that they faced particular
hardship in preparing for trial, and that the Court’s ruling is manifestly unjust.
The Court commends the plaintiffs’ counsel for her candor in explaining the
personal difficulties that she faced in the weeks leading up to trial, including a bout
of the flu that was particularly disruptive to her trial preparation and
communication with defendant’s counsel.

We also recognize that, in some

significant measure, the plaintiffs’ counsel has been put in a difficult position by
her own clients who have insisted upon producing evidence that was not disclosed
to their own attorney in a belated, haphazard and erratic fashion. In the face of
instances where the plaintiffs have surprised their own counsel by producing items
of previously undisclosed evidence immediately prior to trial in violation of the
rules and this Court’s orders, plaintiffs’ counsel has shown commendable loyalty
to her clients, who have placed their attorney in a very difficult posture.
Although the Court sympathizes with counsel and the challenges that she no
doubt faced in the lead-up to trial, and although the Court respects and appreciates

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counsel’s considerable effort throughout this litigation, this does not address the
core of the problem that the Court was faced with when the defendant filed its
motion: the discovery that the plaintiffs had manifestly failed in their discovery
obligations as well as their obligations under the Local Rules and the orders of the
Court with respect to the production of their trial exhibits in a manner that was
obviously and extraordinarily prejudicial.
Specifically, the Court learned that the plaintiffs had initially identified 30
potential trial exhibits; then reduced that list to 24 exhibits that they intended to use
at trial; then amended that list to identify on the morning of the pretrial conference
more than 350 exhibits, many of which have apparently never been produced in the
course of this litigation; then further amended the list to 323 exhibits in a
haphazard fashion which saw previously excluded exhibits reinserted and newly
created exhibits added to this list; before most recently settling upon a 188 exhibit
list which appears plainly subject to further revision and amendment. For reasons
fully set forth and described in the Court’s memorandum opinion, the Court found
that the circumstances compelled a ruling that the plaintiffs would be limited to the
24 exhibits that they initially listed for the defendant.

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The plaintiffs argue, passionately, that the Court’s opinion should at least be
revised to permit them to permit the introduction of exhibits and evidence taken
from water sampling that was allegedly taken from the plaintiffs’ water wells in
January 2016. This testing and sampling was conducted by the plaintiffs in a
secrecy so complete that their own counsel was informed of the testing only afterthe-fact. The evidence which the plaintiffs seek to introduce is, therefore, the very
paradigm of what the law, rules and orders which govern discovery in federal court
prohibit—a last minute surprise exhibit, prepared under circumstances which
create a grave and unjustified prejudice to the opposing party.
In making this argument, the plaintiffs emphasize that their claims in this
case are for permanent injury to property, and recent water samples have been
taken to confirm that the injury to their water supply is not something that occurred
during an isolated discovery period prescribed by the Court, but is instead
something that is of an ongoing and permanent nature. The Court has endeavored
to explain to the parties and counsel that it understands and appreciates the nature
of the plaintiffs’ claims, and for that reason will permit testimony from the parties
regarding the current state of the plaintiffs’ water supplies. However, the Court
has also taken pains to explain that there must be some limits to the development
of discovery and exhibits and other physical and demonstrative exhibits that can be
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used at trial, and these limitations have been part of this case for years, and are well
known by the parties.
The rules and time limitations apply equally to the parties in this action, and
are intended to allow them to develop relevant factual and opinion evidence while
ensuring that parties are not ambushed with new evidence that continues to be
developed – often without any notice to the opposing party – in the days before
trial.

Although the plaintiffs argue that they should at least be permitted to

introduce new water testing data taken just weeks before trial started, this is
perhaps the most problematic of all the late-filed exhibits that they would propose
to use at trial. The defendants were not invited to the testing, had no previous
notice of the testing, and would now be forced to analyze and defend against the
late-disclosed test results on the eve of trial. The unfairness of this is obvious, and
such evidence will not be introduced at trial, for the reasons set forth herein and in
the Court’s prior decision.
The plaintiffs’ motion for reconsideration is otherwise animated by their
argument that the Court’s ruling limiting their exhibits to the 24 that they originally
exchanged with the defendant represents a manifest injustice and is deeply
prejudicial to their claims. The Court has carefully considered this argument, and

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indeed gave the potential for “injustice” substantial consideration when it
fashioned its ruling in this matter. It cannot be emphasized too strongly that the
Court recognized the gravity of its decision to exclude the late-filed exhibits. As
evidenced in the Court’s decision, the circumstances that caused Cabot to file its
motion to exclude the late-disclosed exhibits were unfortunate and indeed were
difficult to comprehend in a case that had been litigated with skill by all counsel
for more than six years. The confusion was compounded by an exhibit list that
took new shape with every turn, and which continued to include scores of
documents and exhibits that had never previously been shared. The disorder that
marked the plaintiffs’ exhibit list, and the rapidly changing nature of that list in the
weeks and days leading toward trial compelled the Court to make the ruling it did,
and to limit the plaintiffs’ exhibits to the 24 that were timely identified, and those
to which no objections had been lodged. Further, plaintiffs have never provided
the Court with other fair, reasonable alternatives to the course we were compelled
to follow.

Moreover, that course expressly permitted the plaintiffs to amply

supplement their original exhibit list through the inclusion of other nonobjectionable exhibits, thus minimizing any hardship on the plaintiffs. That this
ruling may imposed a hardship upon the plaintiffs’ to some degree does not cause
the Court to find that its ruling represents a manifest injustice; to the contrary, the
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Court finds that its ruling was necessary and compelled under the circumstances,
and that to rule otherwise would have been deeply prejudicial to the defendant,
who would have been put to the task of defending against documents, data, and
exhibits that were never previously identified or, in many cases, even produced
until days before trial.
III.

ORDER
For these reasons, the plaintiffs’ motion for reconsideration is DENIED.
So ordered this 24th day of February 2016.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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