Magers et al v. Chesapeake Appalachia, LLC

Filing 117

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT COLUMBIA GAS TRANSMISSION, LLC'S 102 MOTION FOR SUMMARY JUDGMENT, DENYING AS MOOT DEFENDANT COLUMBIA GAS TRANSMISSION, LLC'S 101 MOTION TO EXCLUDE THE TESTIMONY OF JOHN HEMPEL, AND SCHEDU LING STATUS AND SCHEDULING CONFERENCE: The defendant Columbia GasTransmission, LLC's motion for summary judgment is GRANTED. Further, the defendant Columbia Gas Transmission, LLC's motion to exclude testimony is hereby DENIED AS MOOT. Fur ther, it is ORDERED that the remaining parties appear by counsel for a status and scheduling conference on September 29,2014 at 1:15 p.m. in the chambers of Judge Frederick P. Stamp, Jr., Federal Building, 1125 Chapline Street, Wheeling, West Virginia 26003. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/2/2014. (kac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEREMIAH N. MAGERS and
ANDREA J. MAGERS,
Plaintiffs,
v.

Civil Action No. 5:12CV49
(STAMP)

CHESAPEAKE APPALACHIA, L.L.C. and
COLUMBIA GAS TRANSMISSION, L.L.C.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT COLUMBIA GAS TRANSMISSION, L.L.C.’S
MOTION FOR SUMMARY JUDGMENT,
DENYING AS MOOT DEFENDANT COLUMBIA GAS TRANSMISSIONS, L.L.C.’S
MOTION TO EXCLUDE THE TESTIMONY OF JOHN HEMPEL,
AND SCHEDULING STATUS AND SCHEDULING CONFERENCE
I.

Procedural History

The plaintiffs, Jeremiah N. Magers and Andrea J. Magers, filed
a

complaint

against

defendant

Chesapeake

Appalachia,

L.L.C.

(“Chesapeake”) in the Circuit Court of Marshall County, West
Virginia.
pursuant

The case was then removed to this Court by Chesapeake
to

diversity

jurisdiction.

During

discovery,

the

plaintiffs discovered evidence that led them to file a motion to
amend the complaint in order to join CNX Gas Company, L.L.C.
(“CNX”) and Columbia Gas Transmission, L.L.C. (“Columbia”).
motion to amend was granted by this Court.

The

In their amended

complaint, the plaintiffs claim that the defendants’ drilling
related activities on a tract of property adjacent to their own
resulted in the contamination of their drinking well water.

Thereafter, Columbia filed a motion to dismiss or in the
alternative, a motion for a more definite statement.

This Court

denied Columbia’s motion to dismiss but granted its motion for a
more definite statement.

The plaintiffs filed a more definite

statement in accordance with that order.

In response, CNX filed a

motion to dismiss arguing that the plaintiffs could not assert a
claim against it under West Virginia Code § 22-7-1 et seq.

This

Court granted CNX’s motion to dismiss and CNX was terminated as a
party to this action.
Ten days after that judgment, the plaintiffs filed a motion
for reconsideration of the judgment dismissing CNX as a party
defendant.

The plaintiffs later filed a motion to amend their

complaint.

This Court denied the plaintiffs’ motion to alter or

amend the judgment and granted in part the plaintiffs’ motion for
leave to file an amended complaint as it pertained to defendants
Chesapeake and Columbia and denied that motion in part as moot as
it pertained to CNX.
Thereafter, the parties filed joint stipulations dismissing
Counts II and III of the complaint against Columbia.

The parties’

stipulation to dismiss Count II, however, came after Columbia filed
its motion for summary judgment and had already briefed the issues
as to Count II.

This Court approved both stipulations, thus the

only remaining count against Columbia is Count I, a negligence
claim.

2

II.

Background1

In its motion to exclude testimony, Columbia asserts that John
C. Hempel (“Hemple”) conducted a geological investigation of the
plaintiffs’ property in 2009 before Columbia and CNX were named as
parties.

Columbia also indicates that at Hempel’s deposition,

Hempel had only reviewed his own data from 2009 and the expert
disclosures of Columbia’s expert, Dr. Robert W. Chase.

Further,

Columbia states that Hempel was unable to testify that the source
of the contamination was Columbia and that he was only able to
testify that he would need more information to opine, with a
reasonable degree of professional certainty, as to whether the
actions of any of the defendants resulted in the damage to the
plaintiffs’ property.
In its motion for summary judgment, Columbia first argues that
the plaintiffs have not shown by a preponderance of the evidence
that Columbia caused the damages underlying this action because the
plaintiffs have admitted (1) that the test results from their water
well show different gas than that present in Columbia’s gas wells,
and (2) that they have no personal knowledge of over-saturation or
injection of water or other chemicals by Columbia which caused the

1

The background below will not review the parties’ arguments
as to Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579
(2003), as this Court finds that the motion to exclude is moot
because the Court is granting Columbia’s motion for summary
judgment and thus the application of Daubert does not need to be
considered at this time.
3

release of methane gas or other contaminants.

Further, Columbia

argues that the plaintiffs’ only support for causation is dependent
on their expert testimony and report. Columbia argues that for the
reasons set forth in their motion to exclude testimony, Hempel
cannot testify that Columbia is more likely than not the cause of
the contamination. On the other hand, Columbia indicates that both
its expert and Chesapeake’s expert, Anthony W. Gorody (“Gorody”),
have conducted fingerprint analysis of the water well and gas
samples from Chesapeake and Columbia.

Columbia argues that its

expert has shown that the gas samples from Columbia and the
plaintiffs’ wells are different and thus Columbia is not a cause.
Further,

Columbia

asserts

that

Gorody’s

report,

to

exculpate

Chesapeake, concludes that the contaminant in the plaintiffs’ water
well is biogenic in origin and not related to gas production.
Additionally, Columbia contends that insofar as Gorody’s report may
implicate Columbia, Gorody did not review Columbia’s gas samples
and thus it cannot be used to implicate Columbia.
In response, the plaintiffs argue that there is a genuine
issue of material fact as to whether Columbia over-saturated its
storage field or dropped the pressure so low as to create the
fractures below the plaintiffs’ well that were reported by Hempel
in 2009.
a

The plaintiffs contend that they do not have to show by

preponderance

of

the

evidence

that

Columbia

was

the

sole

proximate cause of the injury but merely need to show that Columbia

4

is a proximate cause, which they argue may not be shown by the
fingerprinting done by Gorody and Chase.

To support the last

assertion, the plaintiffs cite to Hempel’s testimony that the gases
may have intermixed and thus fingerprinting is not reliable.
Further, the plaintiffs argue that Columbia should not be able to
use the admissions by the plaintiffs because they are laymen who
would not understand the science that went behind Columbia’s
questions.
The plaintiffs further contend that (1) Hempel’s testimony
should

not

be

excluded

for

being

untimely

and

(2)

Hempel’s

testimony should not be excluded because the scheduling order has
been

vacated.

The

plaintiffs

indicate

that

they

requested

additional information from Columbia, after Hempel’s deposition,
that will assist him to make a more conclusive finding based on the
data. The plaintiffs then concede, however, that Hempel’s analysis
is not complete but that his theories should not be prematurely
discarded before he can fully apply them to the data that has been
collected thus far in this case.
The plaintiffs next argue that the information sought by
Hempel, which was requested by the plaintiffs after his deposition,
is significantly important to his testimony.

The plaintiffs have

requested pressure logs from Columbia and the plaintiffs assert
that these are needed in order for Hempel to make a determination
of

whether

Columbia

was

a

cause

5

to

a

reasonable

degree

of

professional certainty.

The plaintiffs then assert that there is

ample time to continue the discovery deadlines because this Court
has vacated the scheduling order and there are no deadlines at this
time.

Thus, the plaintiffs argue that discovery is incomplete at

this time, that the additional discovery they asked for (the
pressure logs) was not untimely because the scheduling order has
now been vacated, and thus summary judgment would be premature.
Finally, contrary to Columbia’s assertion that they have had
four years, the plaintiffs assert that counsel for the plaintiffs
has had less than two years to consider Columbia’s part in this
action because the plaintiffs had originally brought this suit with
another firm and thus, there was no purposeful delay.

As to their

final argument, the plaintiffs contend that because there is no
scheduling order and parties are, under Federal Rule of Civil
Procedure 26, governed by the 90-day rule (expert disclosures must
be completed 90 days before the trial date), they are still within
that window even though those deadlines had passed in the vacated
scheduling

order.

Further,

they

argue

that

it

would

be

disingenuous for Columbia to argue otherwise as it filed a motion
for summary judgment after the deadline for such a motion had
passed in the vacated scheduling order.
In its reply, Columbia asserts that the plaintiffs did not
provide a complete statement of all opinions of Hempel and that
this failure is not a harmless error.

6

Columbia argues that

although an expert may in some circumstances supplement what was
provided in disclosures, it cannot be done in this case where the
future testimony is hypothetical and the plaintiffs have had ample
time to complete discovery.

Additionally, Columbia argues that

Hempel’s testimony will be crucial and likely contested, thus it
should not be allowed because the plaintiffs chose to wait until it
was too late to request necessary documents.
problems

with

Hempel’s

testimony,

Columbia

Because of the
asserts

that

his

testimony should be excluded, or in the alternative, should be
limited to what was disclosed in his 2009 report.
Columbia then argues that because Hempel’s testimony cannot be
used, and has not been fully developed, the plaintiffs have failed
to prove causation.

As to the plaintiffs’ claims that over-

saturation is a disputed material issue, Columbia argues that
Hempel has been unable to testify as to saturation, thus, his
testimony as to that subject should not be admissible. Thus,
because this assertion is also unsupported, the plaintiffs have
failed to prove causation.

Columbia contends that in order to

request additional discovery, the plaintiffs were required to
submit a Rule 56(d) affidavit or declaration to demonstrate to this
Court that the plaintiffs cannot present facts essential to justify
denying summary judgment–they have not.
that

even

without

the

Rule

56(d)

Further, Columbia argues

affidavit/declaration,

the

plaintiffs have not shown that they diligently pursued discovery

7

before the summary judgment motion was made.

Columbia indicates

that there have been several rounds of discovery and it would be
greatly prejudiced by an extension because of the significant costs
to

date

of

conducting

discovery,

preparing

depositions, and filing for summary judgment.

reports,

taking

Moreover, Columbia

notes that the plaintiffs had nine months under the previous
scheduling order which was vacated after discovery had closed and
must now deal with the consequences of not acting sooner and
preparing a full expert case.
For the reasons set forth below, this Court finds that
Columbia’s motion to exclude expert testimony is denied as moot and
Columbia’s motion for summary judgment is granted.
III.

Applicable Law

The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).

However, as the United States Supreme

Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but

8

. . . must set forth specific facts showing that there is a genuine
issue for trial.”

Id. at 256.

“The inquiry performed is the

threshold inquiry of determining whether there is the need for a
trial-whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”

Id. at 250;

see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).
Further, summary judgment is generally appropriate only after
adequate time for discovery.

Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
must

be

refused

where

the

nonmoving

“[S]ummary judgment

party

has

not

had

the

opportunity to discover information that is essential to his
opposition.”

Anderson, 477 U.S. at 250 n.5.

However, “great

weight [is placed] on the [Federal Rule of Civil Procedure] Rule
[56(d)] affidavit, believing that a party may not simply assert in
its brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.”

Evans, 80 F.3d at 961.

9

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV.
A.

Discussion

Motion to Exclude Testimony
This Court has granted Columbia’s motion for summary judgment

based on the analysis below.

This judgment encompasses the

information that has currently been conveyed through Hempel’s
report and his deposition testimony.

As the motion for summary

judgment must be granted, even using Hempel’s 2009 report, 2013
deposition testimony, and 2014 affidavit, the motion to exclude
testimony is moot.
B.

Motion for Summary Judgment
1.

Use of Hempel’s
Consideration

Testimony

For

Summary

Judgment

As an initial matter, this Court finds that the plaintiffs’
contention

as

to

Hempel’s

testimony

in

conjunction

with

the

requested pressure logs is without merit. Hempel, to this point in
the litigation, has only stated that there may be a potential link
between Columbia and the leakage on the plaintiffs’ property
because of the proximity of Columbia’s storage wells to the
plaintiffs’ property.

Further, Hempel has stated that he needs

more information to formulate an opinion as to the cause of the
leakage on the plaintiffs’ property and that his opinion, as of
January 2014, is incomplete without further information.
10

The

plaintiffs have requested, through a second set of interrogatories,
pressure logs from Columbia which they argue would bolster Hempel’s
testimony and provide sufficient evidence to survive a motion for
summary judgment.
Although

the

plaintiffs

filed

their

second

set

of

interrogatories requesting the pressure logs within the discovery
period, such an action would have required a change in the expert
disclosure provided to the defendants regarding Hempel and would
have

required

an

answer

to

those

interrogatories

after

the

discovery deadline. Federal Rule of Civil Procedure 26(a)(2) holds
that:
(A) In General. In addition to the disclosures required
by Rule 26(a)(1), a party must disclose to the other
parties the identity of any witness it may use at trial
to present evidence under Federal Rule of Evidence 702,
703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless
otherwise stipulated or ordered by the court, this
disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one
retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s
employee regularly involve giving expert testimony. The
report must contain:
(i) a complete statement of all opinions the
witness will express and the basis and reasons
for them;
(ii) the facts or data considered by the
witness in forming them;
(iii) any exhibits that will be used to
summarize or support them;
(iv) the witness’s qualifications, including a
list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during
the previous 4 years, the witness testified as
an expert at trial or by deposition; and
11

(vi) a statement of the compensation to be
paid for the study and testimony in the case.
Fed. R. Civ. P. 26(a)(2).
Thus, the plaintiffs may not rely on the pressure log evidence
to

oppose

summary

judgment

as

this

Court

would

have

to

presumptively find that the pressure logs would change Hempel’s
opinion.

Such a finding by this Court would be speculative.

This

Court may not now allow the plaintiffs to request pressure logs
which would then require a further expert disclosure.

The expert

disclosure deadline ended, at the latest date, on November 4, 2013.
At that time, the plaintiffs would have been aware of what expert
testimony would be offered by Columbia’s expert and Chesapeake’s
expert.

Further, Hempel had already requested more data in his

2009 report.
Additionally, in making a determination of what testimony
should

be

factors:

considered,
“(1)

the

the

Court

explanation

should
for

review

making

the

the

following

supplemental

disclosure at the time it was made; (2) the importance of the
supplemental information to the proposed testimony of the expert,
and the expert’s importance to the litigation; (3) potential
prejudice to an opposing party; and (4) the availability of a
continuance to mitigate any prejudice.”

Tucker v. Ohtsu Tire &

Rubber Co., Ltd., 49 F. Supp. 2d 456, 461 (D. Md. 1999).

In this

case, the plaintiffs assert that the late request for information
to supplement Hempel’s testimony was because counsel for the
12

plaintiffs had changed mid-way through the litigation and new
counsel was having to learn belatedly the intricacies of this
action.

However, the change of plaintiffs’ counsel occurred in

January 2013.
in

this

ECF Nos. 20 and 21.

action

for

almost

disclosure deadlines passed.

Thus, new counsel was involved

eleven

months

before

the

expert

Further, the plaintiffs’ counsel was

aware that Hempel required more data to complete his analysis at
the time of his 2009 report and counsel was made aware that the
pressure logs were not public documents as early as July 2013. ECF
No. 113 at 5.

Thus, it is unclear why they did not request those

documents which would have fulfilled, at least in some part if not
fully, Hempel’s 2009 request to acquire more data to complete his
analysis.
As to the second requirement, as stated above, this Court
would have to speculate as to the importance of the evidence to the
testimony.

Thus, this element is not in the plaintiffs’ favor.

Finally, as to the final two elements, the plaintiffs had an
opportunity to file a motion to continue discovery deadlines or to
continue expert disclosures as to Hempel.
do so.

The plaintiffs did not

Given the movement in this case at this point, and the full

briefing of the summary judgment, Columbia would be prejudiced by
such a change in Hempel’s testimony at this time.
Further, summary judgment is generally appropriate only after
adequate time for discovery.

Evans v. Technologies Applications &

13

Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
must

be

refused

where

the

nonmoving

“[S]ummary judgment

party

has

not

had

the

opportunity to discover information that is essential to his
opposition.”

Anderson, 477 U.S. at 250 n.5.

However, “great

weight [is placed] on the [Federal Rule of Civil Procedure] Rule
[56(d)] affidavit, believing that a party may not simply assert in
its brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.”

Evans, 80 F.3d at 961. The failure to file a Rule

56(d) affidavit, however, may be excused “if the nonmoving party's
objections before the district court ‘served as the functional
equivalent of an affidavit,’ and if the nonmoving party was not lax
in pursuing discovery.” Harrods Ltd v. Sixty Internet Domain Names,
302 F.3d 214, 244-45 (4th Cir.2002)(quoting First Chicago Int'l v.
United Exchange Co., 836 F.3d 1375, 1380 (D.D.C.1988)).
In this case, the plaintiffs have failed to file a Rule 56(d)
affidavit to set out reasons why further discovery is needed to
supplement Hempel’s testimony. Although Hempel filed an affidavit,
the plaintiffs have failed to do so as a party to this litigation.
This too weighs in favor of this Court granting summary judgment
despite

the

plaintiffs’

assertions

as

to

the

need

for

more

discovery. Additionally, the plaintiffs had ample time to complete
discovery and were aware that the pressure logs were not publicly

14

distributed as early as July 2013. As such, the plaintiffs are not
entitled

to

application

of

the

exception

that

a

Rule

56(d)

affidavit must be filed, noted above, as they were not diligent in
pursuing discovery.
Finally,

this

Court

finds

the

plaintiffs’

argument

that

Columbia’s assertion that the disclosure would be untimely is
without merit given that Columbia filed a motion for summary
judgment after the deadline for such a motion passed in the vacated
scheduling order.
the

scheduling

First, even if Columbia failed to comply with

order,

“litigants

are

not

excused

from

their

obligations under the rules of procedure merely because an opponent
has failed to comply with his obligations.”

Carr v. Deeds, 453

F.3d 593, 604 (4th Cir. 2006) (abrogated on other grounds by Sawyer
v. Asbury, 537 F. App’x 283 (4th Cir. 2013).

Further, the vacated

scheduling order had indicated that dispositive motions were due on
December 9, 2013.

This Court vacated the scheduling order on

December 6, 2013. Thus, Columbia’s motion for summary judgment was
not required to be filed by December 9, 2013 as that deadline had
already been vacated.

As such, this Court finds that it can only

consider Hempel’s testimony that has been provided to this point
which includes his 2009 report, his 2013 deposition, and his 2014
affidavit.

15

2.

Plaintiffs’ Evidence is Insufficient

In Count I of the plaintiffs’ complaint, the remaining count
against Columbia, the plaintiffs allege that Columbia’s storage
wells

leaked

methane

plaintiffs’ water well.

gas

and

other

contaminants

into

the

The plaintiffs assert that this occurred

during Columbia’s process of storing and producing gas at which
time Columbia over-saturated its storage field.
In response to Columbia’s motion for summary judgment, the
plaintiffs contend that there is a genuine issue of material fact
as to whether Columbia over-saturated its storage field or dropped
the

pressure

so

low

as

to

create

the

fractures

below

the

plaintiffs’ well that were reported in Hempel’s 2009 report.

The

plaintiffs argue that they do not have to show that Columbia’s
actions were the proximate cause of the damage to the plaintiffs
but only that it was a proximate cause of the damage.

The

plaintiffs assert that Hempel’s testimony at this time asserts that
the gases could have intermingled and thus fingerprinting analysis
done by Gorody and Chase (Chesapeake and Columbia’s experts) is not
reliable.
Columbia, on the other hand, argues that Hempel has been
unable to testify as to saturation and thus his testimony as to
that subject should not be admissible and the plaintiffs’ argument
is unsupported.

Further, Columbia asserts that summary judgment

must be granted as the plaintiffs cannot show by a preponderance of

16

the evidence that Columbia was the proximate cause of the damage to
the plaintiffs’ well.

Columbia argues that the plaintiffs cannot

do so because Hempel cannot conclusively say what is or is not a
cause of the damage, Gorody concluded that the contaminant in the
plaintiffs’ water well is biogenic in origin and not related to gas
production, and Chase concluded that the gas samples from Columbia
and the plaintiffs’ wells are different and thus Columbia cannot be
the cause of the damage.
The West Virginia Supreme Court has applied the following
burden of proof for a multi-defendant negligence action:
[W]hile a plaintiff has the burden of proving that a
defendant’s breach of a particular duty of care was a
proximate cause of his or her injuries, the plaintiff
does not have to show that such breach was the sole
proximate cause of the injury . . . . Accordingly, “‘A
party in a tort action is not required to prove that the
negligence of one sought to be charged with an injury was
the sole proximate cause of an injury . . . .’”
Spencer v. McClure, 618 S.E.2d 451, 455-56 (W. Va. 2005) (citing
Mays v. Chang, 579 S.E.2d 561, 565 (W. Va. 2003)) (other citations
omitted).

However, the West Virginia Supreme Court has also

explained that “the law is clear that a mere possibility of
causation is not sufficient to allow a reasonable jury to find
causation.”

Tolley v. ACF Industries, Inc., 575 S.E.2d 158, 168

(W. Va. 2002).
This Court finds that based on the West Virginia precedent
cited above, the plaintiffs are correct that they were not required
to show that Columbia was the sole proximate cause of the damage to
17

the plaintiffs’ property. On the contrary, however, the plaintiffs
do have to show that there is more than a mere possibility of
causation for this Court to allow the claim against Columbia to
proceed. Based on the evidence provided, this Court finds that the
plaintiffs have not done so because Hempel’s opinion at this time
is incomplete and preliminary and it has not been shown that there
is more than a mere possibility that Columbia was the source of the
methane gas in the plaintiffs’ well.
a.

Expert Reports

To reiterate, there are three main causation experts in this
action:

the

plaintiffs’

expert,

Hempel;

Chesapeake’s

expert,

Gorody; and Columbia’s expert, Chase.
In Hempel’s December 29, 2009 report, Hempel asserts that two
potential causes for the leak must be considered: (1) drilling and
fracking in the area and (2) Columbia’s storage field.
103, Ex. 3 at 15-16.

ECF No.

Hempel further reported that he had not

conducted fingerprinting and that it may be possible to complete
fingerprinting of the gas in the well and then compare it to
Columbia’s gas samples to determine the source of the gas in the
well.

Id. at 16.

during

his

2013

Additionally, Hempel stated in his report,

deposition

and

in

his

2014

affidavit,

that

additional data was needed before a conclusive finding could be
reached.

Id. at 16 and 21; ECF No. 103, Ex. 9 at 10, 14, 134; ECF

No. 113, Ex. I at 3.

Finally, Hempel states that there is a

18

“likely possibility,” a “possibility,” or the “potential” that
Columbia is a source of the gas in the well because of the
proximity of Columbia’s storage field.
128, 141-142.

ECF No. 103, Ex. 9 at 10,

However, he also states that the leakage was caused

“most likely from drilling.”

Id. at 142.

Gorody, Chesapeake’s expert, submitted two reports in 2010.
Gorody reported that the gas found in the well was biogenic and not
related to gas productions (not thermogenic). ECF No. 103, Ex. 5 at
1.

He further found that the gas had not been altered by mixing or

environmental degradation and that a potential source in the area
is coal seam aquifers.

Id. at 2-4. Gorody went on to report that

the storage field, underground coal mining, or gas migrating or
desorbing were all possible sources of the leakage.
No. 103, Ex. 6 at 3.

Id. at 5; ECF

In conjunction with this report, the

plaintiffs answered interrogatories related to the finding by
Gorody that the gas in the well was biogenic.

In their answers to

the interrogatories, the plaintiffs admit that if Gorody’s data is
valid, the gas samples from Columbia’s storage field are chemically
distinct from the gas samples taken from the plaintiffs’ water
wells in 2009.

ECF No. 103, Ex. 12 at Resp. No. 9.

The plaintiffs

have not provided evidence that Gorody’s opinions are not valid.
The expert for Columbia, Chase, reported that the gas in the
water well was from a biogenic source.

ECF No. 103, Ex. 13 at 8.

Further, Chase opined that Columbia’s storage well was not the

19

source of the gas in the plaintiffs’ well and that the plaintiffs
have no explanation as to how Columbia’s operations could have been
the cause of the gas in those areas.
b.

Id. at 9-10.

Application of West Virginia’s Burden of Proof

Given the evidence in this case, the plaintiffs have failed to
show that there is more than a mere possibility that Columbia was
the source of the gas found in the plaintiffs’ well. Hempel failed
to provide a conclusive answer as to who he believed was the source
or sources of the gas on the plaintiffs’ property. Hempel was only
able to opine that there was a possibility that Columbia could be
a source because of the proximity of the storage field to the
plaintiffs’ property.
Further, both Gorody and Chase agreed that the gas in the well
was biogenic in nature.

Hempel, who was not given such material,

was unable to provide an opinion as to those findings.

Given the

evidence that the gas was biogenic, and the plaintiffs’ admissions
that such a finding (if not disproved) would lead to a finding that
Columbia was not the source, this Court finds that there is not a
dispute as to the conclusion that the gas in the well did not come
from Columbia’s storage field or at the most that there is only a
mere possibility that it did. The plaintiffs have not provided any
evidence that Gorody’s finding that the gas in the well was
biogenic is false and thus cannot survive the motion for summary
judgment.

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Accordingly, this Court finds that the plaintiffs have failed
to meet their burden of showing that there is more than a mere
possibility that the source of the gas in the well was Columbia.
Thus, their claim against Columbia cannot proceed to trial as there
are no material facts in dispute.
V.

Conclusion

For the reasons stated above, the defendant Columbia Gas
Transmission, LLC’s motion for summary judgment is GRANTED (ECF No.
102). Further, the defendant Columbia Gas Transmission, LLC’s
motion to exclude testimony is hereby DENIED AS MOOT (ECF No. 101).
Further, it is ORDERED that the remaining parties appear by
counsel for a status and scheduling conference on September 29,
2014 at 1:15 p.m. in the chambers of Judge Frederick P. Stamp, Jr.,
Federal Building, 1125 Chapline Street, Wheeling, West Virginia
26003.
Further, the Court will permit those out-of-town attorneys
having their offices further than forty (40) miles from the point
of holding court to participate in the conference by telephone.
However, any such attorney shall advise the Court as soon as
possible prior to the conference of his or her intention to
participate by telephone and shall (1) inform all counsel of his or
her appearance by telephone; (2) confer with other out-of-town
attorneys to determine if they wish to appear by telephone; (3)
advise the Court of the name of the attorney who will initiate the

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conference call and all such attorneys appearing by telephone; and
(4) initiate a timely conference telephone call with such attorneys
to

the

Court

conference.

at

304/233-1120

at

the

time

of

the

scheduled

If the attorneys cannot reach agreement as to the

initiator of the call, the Court will make that determination.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

September 2, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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