The federal Eighth Circuit Court of Appeals has affirmed a jury verdict in favor of a landowner who alleged her home was damages by vibrations from drilling operations. The judgment in favor of the plaintiff was affirmed in Hiser v. XTO Energy. Inc., No. 13–3443 (8th Cir. Oct. 3, 2014).
Ruby Hiser filed a lawsuit against XTO Energy Inc. in Arkansas. Ms. Hiser had lived in her home for six years before XTO began drilling operations nearby. XTO began drilling a gas well on property adjacent to Ms. Hiser’s home in February 2009. According to Ms. Hiser, it was around this time that she started feeling vibrations. Ms. Hiser testified at trial that she feels the vibrations and hears her house “crackle” when XTO’s drill is in use. She testified that people who stayed the night in her home also felt the vibrations. Several witnesses also testified at trial they had felt the vibrations when visiting Ms. Hiser’s property
Justin Hall, a licensed professional engineer, examined Ms. Hiser’s home on June 5, 2009. Mr. Hall testified that he could hear the nearby drilling during his inspection of Ms. Hiser’s home. Based on his experience, the inspection, and the proximity of the drilling equipment to Ms. Hiser’s home, approximately 150 feet at the time, Mr. Hall concluded that XTO’s drilling was the source of the vibrations. Mr. Hall opined that the damage to Ms. Hiser’s home is consistent with vibrations from drilling, not the result of poor construction.
Mr. Hall conducted a second inspection in January of 2011. He observed that the drilling area had moved closer to Ms. Hiser’s home. Mr. Hall noted, among other things, excessive shifting of the foundation and numerous nail pops in the sheetrock uncharacteristic of normal foundation settlement. Mr. Hall again attributed the damage to nearby drilling and vibration.
At trial, Ms. Hiser testified that she spent approximately $30,000 repairing her home. Mr. Hall testified that, based on his examination of Ms. Hiser’s home, it would cost $55,000 to repair the damage. Ms. Hiser also testified that she was not able to enjoy her house the same way she did before XTO started drilling and that she experienced noise on and off for approximately two years.
There was also evidence at trial that Ms. Hiser complained early and often about XTO’s drilling. She first complained in February 2009, shortly after XTO began drilling its first well on her neighbor’s property. XTO drilled six gas wells on Ms. Hiser’s neighbor’s property between February 2009 and August 2011. Despite Ms. Hiser’s insistence that the drilling was causing damage to her home, XTO never had a construction expert examine Ms. Hiser’s property. Instead, it relied on the assessment of Jay Jones, one of its landmen. XTO did not offer to test for vibrations until after Ms. Hiser filed her lawsuit and after substantial damage had been done to her home.
The trial resulted in a jury verdict in favor of the plaintiff on Ms. Hiser’s claims of negligence, private nuisance, and trespass under Arkansas state law. The jury awarded Ms. Hiser $100,000 in compensatory damages and $200,000 in punitive damages.
XTO appealed the verdict to the Eighth Circuit. On appeal, XTO argued that a new trial was warranted because of evidence the trial had discussed fracking during deliberations but no evidence regarding fracking had been presented at trial.
During deliberations, the jury asked the district court, “Were they drilling only or were they also fracking”. The court instructed the jury: “You have all of the evidence in this case. You will have to make your decision based on what you recall of the evidence, and the instructions provided.” The jury returned a verdict for Hiser.
The testimony of three jurors was considered. The three jurors agreed that during deliberations, juror Horn asked whether XTO fracked the well in question; one or more jurors expressed unfamiliarity with fracking; Horn explained his understanding of it; and, the jury did not discuss it after the court’s instruction.
The three jurors disputed the scope of the fracking discussion. According to one, “the jury discussed that ‘fracking’ causes earthquakes and vibrations,” and that discussion “concerned the negative impact that ‘fracking’ might have had on Plaintiff’s property.” Juror Horn said he “did not make any negative comments about fracking,” “did not imply or state to the jurors that fracking was actually used at XTO’s well,” and “simply repeated common knowledge about this [fracking] process.” The third juror said only that “there was a short discussion about fracking in general.”
The court of appeals conclude that, even assuming the jury’s fracking and earthquake discussions included any improper extraneous matters, XTO failed to show a reasonable possibility that any such discussions prejudiced it or altered the verdict. Accordingly, the court of appeals held that the district court did not abuse its discretion in denying XTO’s motion for a new trial. The judgment for the plaintiff was affirmed.
Problems with drilling and fracking in your backyard?
Are oil and gas drilling or hydraulic fracturing operations a “nuisance” causing damage to your property or your heath? Generally speaking, a “nuisance” is any condition that substantially interferes with the use and enjoyment of your land by causing what would be considered “unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use or enjoy it.”
A nuisance may arise by causing (1) physical harm to property, such as by the encroachment of a damaging substance or by the property’s destruction, (2) physical harm to a person on his property from an assault on his senses or by other personal injury, and (3) emotional harm to a person from the deprivation of the enjoyment of his property through fear, apprehension, or loss of peace of mind.
As you can probably guess, pursuing a lawsuit against a oil and gad drilling and fracking company can be expensive, difficult and time-consuming. The oil and gas industry is obviously well-funded and is willing to fight long and hard to avoid financial responsibility for the damage caused. To even the playing field, victims need experienced, aggressive attorneys who have the resources to properly prepare and bring a case to trial.
Heygood, Orr & Pearson also has the financial resources to handle personal injury cases from start to finish. In fact, there are many instances in which we invested hundreds of thousands of dollars in a case in order to take it to trial. At Heygood, Orr & Pearson, we are committed to achieving justice for our clients, whatever the cost.
Our firm is AV-rated, the highest legal and ethical rating available from the leading law firm rating service. Our partners Michael Heygood, Jim Orr, and Eric Pearson are all Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Heygood and Mr. Orr are additionally Board Certified in Civil Trial Advocacy Law by the National Board of Trial Advocacy. Our partners been voted by their peers as “Super Lawyers” in the state of Texas for several years in a row.*
Contact the lawyers at Heygood, Orr & Pearson for your free case evaluation and to learn more about your legal right to compensation. You can reach us by calling toll-free at 1-877-446-9001, or by following the link to our free case evaluation form.
* Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2014.