A federal magistrate judge declined to impose the “extreme sanction” of striking revised expert reports filed by plaintiffs who were at times litigating pro se in a case against oil and gas companies over allegations the drilling tainted the plaintiffs’ water supply and devalued their land.

Although U.S. Chief Magistrate Judge Martin C. Carlson of the Middle District of Pennsylvania noted the parties disputed whether the plaintiffs in Ely v. Cabot Oil & Gas had counsel “ghostwrite” some of their filings during a critical time in the litigation when they were without counsel, he said it was clear from some of the filings that the plaintiffs had to shoulder much of the prosecution of their case.

The case began in November 2009 when 44 plaintiffs sued two natural gas drilling companies to recover damages for property damage from drilling operations in Dimock Township, Pa. A number of the plaintiffs settled, leaving 10 plaintiffs still in the case.

Carlson said the plaintiffs’ case was impaired by their own litigative strategy as well as the fact that they lost their legal representation “at a critical point in this litigation” when prior counsel withdrew after the district court found she had made “material misrepresentations” about her admission to the Pennsylvania bar.

“The plaintiffs’ briefs, which they steadfastly maintained were prepared and filed pro se, now appear to have had the assistance of ghostwriting from their former counsel, although in many respects the briefs and other submissions bear indicia of having been prepared by those unschooled in the law,” Carlson said in a footnote.

Once the defendants filed the motions for sanctions, however, attorney Samuel C. Stretton entered his appearance on behalf of the plaintiffs.

Stretton said that while he won the battle over expert reports with Carlson’s memorandum opinion March 27, he likened a March 28 report and recommendation from Carlson to losing the war. In the March 28 report and recommendation to the judge overseeing the case, U.S. District Judge John E. Jones II, Carlson recommended dismissing the bulk of the claims brought by some of the plaintiffs. Stretton said the remaining claim under Carlson’s ruling would be the private nuisance claim. Stretton said he plans to appeal the recommendation to Jones. The start of Carlson’s report captures his view of the case currently.

“Sometimes in life, and in litigation, what begins as a great and transcendent cause reduces over time to a discrete dispute,” Carlson said. “So it is in this case.”

Sanction Ruling

It was in response to defense motions for summary judgment that the plaintiffs supplemented their three previously timely filed expert reports with additional information that the defense has argued introduced entirely new theories not contemplated in their summary judgment motions. The plaintiffs argued striking the supplemental information would be a “devastating blow” to their ability to beat the defendants’ pending dispositive motions.

Carlson, who said the imposition of sanctions for discovery abuses is discretionary, used the four-prong test outlined by the U.S. Court of Appeals for the Third Circuit to determine whether the sanction of striking evidence was warranted. Carlson looked at the prejudice or surprise to the party against whom the evidence would have been admitted, the ability of the party to cure that prejudice, the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case, and the bad faith or willfulness in failing to comply with a discovery obligation.

“Applying these factors to the defendants’ motion, we conclude that the extreme sanction of striking the supplemental reports is not warranted,” Carlson said.

The judge said there is no question the defendants win on the first prong, because the revised expert reports raised new information that was not provided to the defense before they crafted their summary judgment motions. But he said he didn’t think the other three factors weighed in the defendants’ favor.

The defense argued there was no cure for the prejudice they face from the untimely entry of new expert theories in the case. Carlson said, however, that the case has not been scheduled for trial yet and likely won’t go to trial for many months.

“Moreover, the court is empowered to adjust the case-management deadlines as may be necessary to mitigate the prejudice the defendants believe they now face,” Carlson said. “Additionally, the plaintiffs are now represented by counsel, and we are confident that the introduction of counsel into this matter will redound to the benefit of all parties and the litigation process, even at this late stage, and in spite of the halting nature of this litigation experienced for a considerable period of time.”

Carlson said other sanctions short of exclusion of the evidence are potentially available to the defendants.

And while Carlson said the case has been disrupted “to no small degree” by the plaintiffs and their decisions in the case, the trial would not be disrupted by allowing the updated reports into evidence. He said he agreed with the defendants that routinely allowing such delayed filings could “lead to a pretrial system that lacked finality and would unreasonably prolong litigation.” But Carlson said he was only dealing with the case at issue, its current posture and the desire to avoid the extreme sanction requested while giving the defendants a chance to mitigate the prejudice by taking additional discovery.

As to whether the plaintiffs’ delayed filing was willful, the defendants argued it was, given that the plaintiffs themselves admitted the timely filed reports were “drafts” not intended to comport with federal rules. The plaintiffs argued they have tried to comport with the discovery rules but have faced “innumerable obstacles” after their lawyers withdrew their representation in the fall of 2012.

“Although we do believe that the plaintiffs have, at times, exhibited insufficient attention to the case-management deadlines in this case, we do not find that the supplementation of the August 2012 reports demonstrates bad-faith conduct or willfulness on their part,” Carlson said. “We are mindful that the plaintiffs were proceeding pro se at the time they filed the supplemental reports and attempted to contest the defendants’ multiple motions for summary judgment. Had the plaintiffs been represented by counsel throughout this time, we might construe their conduct differently.”

Carlson said the defendants are entitled to a modification of the case-management schedule and can engage in some limited additional expert discovery. He said the defendants could also file additional motions they believe are warranted, including a motion seeking alternate sanctions short of striking the reports.

A call to an attorney for defendants Cabot Oil & Gas and GasSearch Drilling Services Corp., Amy Barrette of Norton Rose Fulbright in Pittsburgh, was not returned by press time.

(Copies of the 22-page opinion in Ely v. Cabot Oil & Gas, PICS No. 14-0479, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.