Many of our readers may have seen the recent cover story in Time noting how natural gas from shale rock promises to provide cleaner, abundant energy for the U.S. While the fuels of the future were often said to be solar, wind, or nuclear (before Japan perhaps?), new drilling methods allow companies to tap into huge quantities of gas from shale rock. New estimates show that we have enough of this natural gas to last 100 years at current consumption rates.
The second biggest natural gas field in the world — the Marcellus — runs through your humble blogger’s home state of Pennsylvania. The energy, jobs, taxes, and independence that tapping into this domestic resource will bring has spurred much interest and anticipation. The method to extract the gas from the rock is called hydraulic fracturing, which like any technology, carries potential risks.
As detailed in the Legal Intelligencer, however, the potential drilling into the Marcellus Shale has caught the attention of the plaintiffs’ bar, including personal injury and environmental class action lawyers. Plaintiffs lawyers are openly speculating about everything from gas leaks and fires, to environmental groundwater impacts, to the problems of large tanker trucks on small rural roadways.
Some plaintiff firms are reportedly trolling for clients, among local residents and workers on Marcellus Shale drill sites as well.
Out west, there has already been litigation filed. See Strudley v. Antero Resources Corp., No. 2011CV2218 (Colo. Dist. Ct., Denver Cty., 3/24/11). Plaintiffs sued the gas exploration company and drilling equipment contractor, alleging that the hyrdrofracking contaminated their well water. Of more interest to our readers, perhaps, is the count for medical monitoring. Plaintiffs lawyers say they have other case to file, and are quoted as planning other medical monitoring class actions.
Medical monitoring is recognized under Pennsylvania law, and a handful of other states, and a plaintiff must prove:
1. exposure greater than normal background levels;
2. to a proven hazardous substance;
3. caused by the defendant’s negligence;
4. as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;
5. a monitoring procedure exists that makes the early detection of the disease possible;
6. the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and
7. the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.
Redland Soccer Club v. Dep’t of the Army, 548 Pa. 178, 696 A.2d 137, 145-46 (Pa.1997).
A number of these elements implicate individual issues that should defeat class certification under the predominance or cohesiveness analyses of Rule 23. Nevertheless, it should come as no surprise to industry that this vital economic activity comes with litigation risks as well.