SIRAGUSA, District Judge.
This action alleging negligence and other related causes of action involves a gas drilling company that Plaintiffs allege has contaminated their residential water wells through its gas exploration in Chemung County, New York. The case was removed by Defendant Anschutz Exploration Corporation ("Anschutz") and is now before the Court on Anschutz's motions seeking an order granting summary judgment, ECF No. 132, and striking Plaintiffs' expert testimony, ECF No. 133. For the reasons stated below, both applications are granted.
Plaintiffs are residents of Chemung County, New York State, who rely on individual residential wells for all their water. Anschutz operates two natural gas wells, Dow # 1 and Dow # 2, drilled in 2010. Anschutz did not use hydraulic fracturing to construct either well. Plaintiffs claim that Anschutz's Dow # 1 well is causing natural gas contamination of their well water. Dow # 1 was drilled vertically to a depth of 9,023 feet, and at that point, makes a roughly ninety-degree turn and continues to a depth of 9,718 feet with a total measured length of 12,840 feet. At the surface, the well is approximately 2,800 feet (about half a mile) from Plaintiffs' homes.
Drilling of Dow # 1 commenced on April 26, 2010, and was completed on June 18, 2010. During the design and permitting phase, the New York State Department of Environmental Conservation ("DEC") and Anschutz were aware that local residents obtained their water supply from wells. They were also aware that shallow sources of naturally occurring methane gas might be encountered during the construction of Dow # 1. Consequently, the DEC permitted and Anschutz designed the well with numerous redundant mechanical features to ensure that shallow methane could not travel up the vertical portion of the well — either inside or outside the steel casing.
During construction, DEC's Joseph Yarosz ("Yarosz") was responsible for regulatory supervision of the well's construction. He inspected both the Dow # 1 and Down # 2 wells in person more than fifty times during construction. Yarosz testified at his deposition that Anschutz satisfied all permit conditions and complied with all applicable laws and regulations during the construction of both wells. Yarosz also testified that Anschutz encountered no material problems in the wells' construction. Further, Plaintiffs' hydrology expert, Paul Rubin ("Rubin"), agreed during his own deposition that the vertical portion of Dow # 1 is not the source of any gas leaks or contamination, Rubin Dep. 248:7-13, and that Anschutz acted reasonably in construction of Dow # 1, the only well Plaintiffs cite as a source of their water contamination. Further, Plaintiffs' well construction expert, Gary Gartenberg, also agreed that Anschutz did nothing wrong in construction of the Dow # 1 well.
More than two months after Dow # 1 was completed, Plaintiffs Joseph Todd and Tom Whipple made complaints about turbidity and methane problems in their water wells. They reported those conditions to the Chemung County Health Department in September 2010. On September 13, 2010, the Chemung County Health Department referred their complaints to the New York DEC. Yarosz investigated the complaints. During his investigation, Yarosz had dozens of interactions with residents about their complaints, including personal visits, phone calls and email correspondence. He sampled the water, interviewed those complaining of contamination, and spoke with area neighbors, and well drillers. In November 2010, DEC issued a fact sheet indicating that gas in area water wells had been common for years prior to Anschutz's exploration activities. Yarosz concluded that since methane was not toxic, residents should install vented well caps on their wells. DEC found that the Dow wells were constructed in such a manner as to make it highly unlikely that gas from deeper formations could migrate up the wellbore and into any water aquifers. DEC stated that:
Memorandum from Linsa Collart, New York State Department of Environmental Conversation, to Bradley Field and Jack Dahl, at Horseheads-001955, Jan. 31, 2011, ECF No. 133-12 (attached to Mulvania aff. as Ex. 10).
Plaintiffs' expert, Rubin, also investigated the water in Plaintiffs' wells, measuring its pH, and sending a sample to a laboratory to be analyzed. He also researched the seasonal fluctuation in groundwater levels in 2010. Rubin disputes that there were unusual groundwater level fluctuations in 2010 that would reflect unusually high temperatures or explain the decline in Plaintiffs' water quality.
DEC noted that as the aquifer recharged with water later in the fall, conditions in the water wells improved. At a December 2010 meeting with some of the plaintiffs, Chemung County commissioned isotopic analysis of the natural gas from Dow # 2 (a gas well located at the same site as Dow # 1), as well as the natural gas in the water wells of Plaintiffs Todd and McDermott. Similar to Dow # 1, Dow # 2 was drilled into the same Black River formation at a depth of approximately 10,000 feet. At the time of the testing, Dow # 1 had become inaccessible due to the presence of completion operations equipment. See Isotech Letter at Horseheads-001947, ECF No. 132-15 (attached to Guzman Decl. as Ex. 12); Dow 1 Chronology at 14-15, ECF No. 132-7 (attached to Guzman Decl. as Ex. 4). Isotech Laboratories, Inc. ("Isotech"), performed the tests.
Anschutz's experts, independent consultant
Big Flats Groundwater Investigation 6-5-6-6. Isotech's test results showed that Plaintiffs' samples contained different proportions of methane, ethane, and propane than the Dow # 2 well. Isotech concluded that the gas in Plaintiffs' wells could not have come from Dow # 2. Plaintiffs contend that the results are irrelevant because they are not citing Dow # 2 as the source of contamination, and Isotech's results do not adequately take into account
Prior to commencing this action in February 2011, Plaintiffs performed no water quality testing of their wells, but Plaintiff Todd anecdotally related that he had to change a three-month particulate filter on a daily basis. Following discovery, Plaintiffs now allege that contamination from the Dow # 1 well consists of natural gas, iron, and manganese. Their complaint raises causes of action for negligence, negligence per se, nuisance, premises liability, trespass, a violation of New York Navigation Law, strict liability, a violation of New York General Business Law § 349, fear of developing cancer, and a cause of action for future medical monitoring. In their prayer for relief, Plaintiffs seek damages of $150 million for each cause of action, and exemplary or punitive damages of $500 million, plus costs.
During the drilling of Dow # 1, Anschutz obtained gas samples from several different depths, ranging from 167 feet, to 9,981 feet, and six other distances between those two. Anschutz had the samples tested by GeoMark Research, Ltd., for which performed a carbon isotopic analysis on the samples. During discovery, Anschutz obtained additional gas samples from eight of Plaintiffs' water wells. Isotopic testing of those samples by Isotech revealed that the samples of gas obtained in drilling Dow # 1 from the relatively shallow depths of 167 to 2,138 feet had carbon isotopic ratios similar to the carbon isotopic ratios measured in Plaintiffs' water wells. Plaintiffs contend that this evidence shows gas mixing. However, Anschutz states that during the drilling of Dow # 1, it isolated the well from those pockets of shallow gas by using steel casing, cement, and other devices. Testing also revealed that the deeper gas samples, from 8,713 feet and deeper, are much lighter in carbon than any of the natural gas found in Plaintiffs' water wells.
Anschutz's experts, Siegel and Hinchey, analyzed the isotopic testing results of the gas from Dow # 1 and Plaintiffs' water wells and concluded:
Siegel Suppl. Rep. at 18, ECF No. 132-19 (attached to Guzman Decl. as Ex. 16). Citing to the Mayo Decl., Oct. 21, 2014, ECF No. 136-2, Ex. N at 17, an article by Anthony W. Gorody entitled "Factors Affecting the Variability of Stray Gas Concentration and Composition in Groundwater," Plaintiffs assert that this conclusion is uninformed by analysis of multiple samples from baseline groundwater investigations, potential point sources, and impacted water sources. They further assert that taking only one sample of the gas in Plaintiffs' water wells on one day does not reliably show the origin of the gas in the water wells. Further, although Anschutz's experts contend that "the isotopic testing demonstrates — conclusively — that the methane in Plaintiffs' water wells did not originate in the deep geological formations into which Dow # 1 and Dow # 2 were drilled," Siegel Suppl. Rep. 15. On the other hand, Plaintiffs' expert, Rubin, asserts that as gases migrate upward through the earth, they pass through various gas-bearing horizons, each with its
With regard to the health monitoring cause of action, Plaintiffs stress that hemochromatosis, a chronic condition in which the body absorbs too much iron over a period of years, can lead to liver and colon cancer. Anschutz, however, counters that even if the contamination is attributable to Dow # 1, the risk of developing cancer is de minimis.
Also listed on the docket of this case is non-party Schlumberger Technology Corporation, which provided limited cementing services at the two Dow wells. After Schlumberger moved to quash Plaintiffs' subpoenas, Plaintiffs withdrew the subpoenas. It does not appear that Schlumberger has been further involved in this litigation and is not relevant to the two motions under consideration here. Further, it does not appear that Plaintiffs have identified the John and Jane Does 1 through 100, so the Court will disregard those placeholder defendants for the purposes of this motion.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "While the absence of any genuine dispute of material fact is a precondition for summary judgment, the crux of a summary judgment analysis is whether the movant has established entitlement to judgment as a matter of law." 11-56 MOORE'S FEDERAL PRACTICE — CIVIL § 56.20 (Matthew Bender 2014). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996).
The burden then shifts to the non-moving party to demonstrate specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not `genuine' issues for trial." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).
The parties may only carry their respective burdens by producing evidentiary proof in admissible form. Fed.R.Civ.P. 56(c)(1)(B). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Moreover, since Plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the
At the outset, the Court must decide whether it should consider the expert testimony of Rubin which Baker submitted in opposition to Anschutz's summary judgment motion. Specifically, Anschutz maintains that Rubin "a consistent opponent of all natural gas exploration, performed no scientific work to support his theory of causation." Anschutz' Mem. of Law 5.
However, Anschutz contends that Rubin's testimony is inadmissible pursuant to Federal Rule of Evidence 702. The admissibility of expert testimony in the federal courts is governed principally by Rule 702, which provides in pertinent part as follows:
Fed.R.Evid. 702. Rule 702 embodies a liberal standard of admissibility for expert opinions, representing a departure from the previously widely followed, and more restrictive, standard of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that the Frye test of general acceptance in the scientific community was superseded by the Federal Rules); Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002) (observing departure, under Federal Rule, from the Frye standard).
The shift under the Federal Rules to a more permissive approach to expert testimony, though, did not represent an abdication of the screening function traditionally played by trial judges. To the contrary, as Daubert explained, Rule 702 governs the district court's responsibility to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court clarified that, whether a witness's area of expertise was technical, scientific, or more generally "experience-based," Rule 702 required the district court to fulfill the "gatekeeping" function of "mak[ing] certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
Daubert enumerated the following factors that, while not constituting a "definitive checklist or test," a district court might consider in evaluating whether a proffered expert opinion has the required indicia of scientific reliability: whether a theory or technique had been and could be tested, whether it had been subjected to peer review, what its error rate was, and whether scientific standards existed to govern the theory or technique's application or operation. See Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786. In addition to setting forth these criteria for testing an expert's methodology, the Supreme Court has also stated that reliability within the meaning of Rule 702 requires a sufficiently rigorous analytical connection between that methodology and the expert's conclusions. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district
Nimely v. City of New York, 414 F.3d 381, 395-97 (2d Cir.2005) (footnote omitted. "The inquiry is a flexible one, and district courts enjoy considerable discretion in deciding on the admissibility of expert testimony." United States v. Farhane, 634 F.3d 127, 158 (2d Cir.2011) (citations and internal quotation marks omitted)).
The first issue to decide is whether to grant Anschutz's motion to exclude testimony by Plaintiffs' expert, Rubin. Anschutz argues that Rubin's opinion, that the Dow # 1 gas well is the cause of Plaintiffs' contaminated well water, is: (1) based on speculative assertions as opposed to actual science; (2) disputed by Anschutz's the isotopic testing results, which Rubin ignored; (3) contradicted by the DEC's explanation, which Rubin also ignored; and (4) beyond the scope of his expertise, since he lacks expertise necessary to give an opinion about the origin of the gas in Plaintiffs' wells.
Rubin relies on Plaintiffs' description of the condition of their well water prior to Anschutz's drilling. As related by counsel in the memorandum of law in opposition to the motion in limine, ECF No. 137, Plaintiff Todd's water has previously been free of sediment for forty-six years, but less than three months after Dow # 1 was shut in, he reported to DEC that his well water had become cloudy, had methane, and black sediment. On October 18, 2010, Plaintiff Ferrell reported to the DEC that their well water had sediment for the first time. Plaintiff Morey reported to the DEC on November 12, 2010, that their well water had become fizzy, milky, and dirty. Other plaintiffs reported similar declines in the quality of their well water following Anschutz's shut-in of Dow # 1.
Rubin conducted inspections of four of the plaintiffs' homes. He took water samples and conducted field parameter measurements of their water supply. He also examined the exposed bedrock in the area and measured the orientation and direction of its joints. Rubin explains that the Horseheads, New York, region is dissected with numerous faults and has a "graben-like structure." However, Rubin's report, dated March 12, 2013, and attached to the Mayo Decl. as Exhibit B, ECF No. 136-4, does not explain what a graben-like structure is, but does refer to "graben faults," id. ¶ 19, "faulted graben-like structures," id. ¶ 24, and "graben fault planes," id. ¶ 25. Rubin's study of the evidence led him to conclude the following:
Rubin report ¶ 29. Rubin's report does not discuss how drilling the borehole for Dow # 1 interconnected bedrock fractures or faults with Plaintiffs' wells. Additionally, while Rubin examined the faults he could see above ground in the area, he did not identify any particular fault or fracture that resulted in interconnection of Dow # 1 with Plaintiffs' aquifer. "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508 (1997).
Without explaining how drilling a bore hole, protected by a steel and cement casing, connected the gas at about 10,000 feet with Plaintiffs' shallow wells, Rubin relies on the temporal proximity of the drilling and the water problems. "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. Such an analytical gap appears here. Rubin has posited a possible means by which gas could migrate from the deep well to Plaintiffs' water wells, but his conclusion is one at which a lay person could also have arrived by the simple process of relating water well problems to the timing of the gas well drilling. In a supplemental report dated March 14, 2014, ¶ 38, attached to Mulvania Aff. as Exhibit 4, ECF No. 133-6 ("Rubin supplemental report"), Rubin alludes to defects in Anschutz's well casing ("Anschutz ... [was], no doubt, well aware of casing corrosion potential stemming from moist, CO
Rubin also theorizes that faults may have allowed the deep well natural gas to seep up into the aquifer. His supplemental report concludes:
Rubin supplemental report ¶ 39.
At his deposition, Rubin was asked the following questions and responded with the following answers:
Rubin's conclusion fails to adequately address the isotropic test results showing that the gas in Plaintiffs' wells was different from the gas in the depths of Dow # 1. Anschutz's experts, Hinchey and Donald, concluded in an April 5, 2013, report entitled "Big Flats Groundwater Investigation," attached to Mulvania Aff. as Exhibit 7, ECF No. 133-9, that,
Id. The Big Flats Groundwater Investigation also documents natural gas in wells in the area as early as the 1960s and fires resulting from natural gas in area well water in the 1980s. As of 1990, 150 houses were drawing water from the aquifer. Id. at 2-1.
Rubin's two reports do not address the isotopic testing. At his deposition, he was asked the following questions and gave the following responses:
Rubin Dep. 306:17-307:10. At this point in the deposition, counsel marked the report from Isotec, which was attached to a letter from the Chemung County Executive and addressed to Thomas Whipple. Id. 307:13-16. At the deposition, the letter and its attachment were referred to as Exhibit 10. Both are filed as Exhibit 8 to the affidavit of Michael N. Mulvania, ECF No. 133-11. Rubin was then questioned about the Isotec report:
Rubin Dep. 308:3-310:23. At the deposition, counsel then marked the GeoMark report as Exhibit 11, which is included as Exhibit 14 to the affidavit of Michael J. Guzman, ECF No. 132-17. Ruben was then asked the following questions and made the following responses concerning the GeoMark isotopic testing report:
Rubin Dep. 311:6-24; 314:20-315:15; & 317:6-319:8.
Exercising its gate keeping function, the Court determines that, considering his reports and his deposition testimony, Rubin's testimony at trial would not be based upon sufficient facts or data, would not be the product of reliable principles and methods, and that, in any event, Rubin has not applied the principles and methods reliably to the facts of the case. Therefore, his testimony would not be admissible. Fed. R.Evid. 702. Anschutz's motion in limine is granted.
Anschutz also seeks summary judgment arguing that Plaintiffs cannot show that "Dow # 1 caused the alleged contamination in their water wells," and "that the alleged contamination has or will likely cause adverse health effects in Plaintiffs." Anschutz Mem. of Law 6, Sept. 5, 2014, ECF No. 132-2.
The Court agrees with Anschutz that Plaintiffs must show causation to recover on their claims. Plaintiffs' evidence that Anschutz caused methane contamination of their water wells, and that methane contamination led to iron and manganese in the water, is based on the report of their expert, Rubin. However, as indicated above, the Court has found that Rubin is not qualified to testify as to causation. Rubin concluded that,
Rubin Supplemental Report ¶ 37 (emphasis added). Plaintiffs' counsel conceded at oral argument that without Rubin's testimony, the Plaintiffs would be unable to prove causation.
However, even if Rubin was qualified to testify in this case, he merely speculates that deep well gas has migrated up through as yet unidentified fissures or faults into the same rock formations, thousands of feet away from Plaintiffs' water wells:
Rubin Dep. 402:14-403:5. His speculation about gas mixing is unsupported by the isotopic testing conducted by the county health department. Rubin conceded at his deposition that neither of his reports discussed the data or analysis from the isotopic tests, and that he was not competent to criticize the isotopic test results and analysis from GeoMark because he was not a chemist. Rubin Dep. 311:11-24. As the Seventh Circuit pointed out, "[a]n opinion that comes for the first time at the expert deposition is untimely." Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir.2008). In Ciomber, the Seventh Circuit wrote:
Ciomber, 527 F.3d at 642.
Rubin's speculation is not sufficient to establish causation. See In re Agent Orange Product Liability Litigation, 818 F.2d 187, 193 (2d Cir.1987) ("A court addressing a motion for summary judgment based on the military contractor defense must thus look to the weight of scientific evidence in determining the existence of a hazard triggering the duty to inform. The hazard cannot be established by mere speculation or idiosyncratic opinion, even if that opinion is held by one who qualifies as an expert under Fed.R.Evid. 702."). "Choosing one explanation over another without more evidence is a matter of speculation...." Cameron v. Community Aid For Retarded Children, Inc., 335 F.3d 60, 65 (2d Cir.2003).
Anschutz's experts distinguished among bacterial gas, such as forms in one's intestines, or in a swamp, from gas produced by high pressure and heat acting on deposits of coal and oil. He explained:
Awad v. Merck & Co., Inc., 99 F.Supp.2d 301, 304 (S.D.N.Y.1999).
Anschutz has shown that Plaintiffs will be unable to meet their burden of showing that Dow # 1 caused methane infiltration into their wells. Without that critical proof, none of their claims can survive.
For the foregoing reasons, Anschutz's two applications, ECF No. 132 seeking summary judgment, and ECF No. 133 motion in limine, are granted. Paul Rubin's expert testimony is excluded, and the Clerk is directed to enter summary judgment for defendant Anschutz.
IT IS SO ORDERED.
