Scoggins Case From White County Filed in Eastern District Federal Court

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS "''

1
AliKANsAs
LESLIE WAYNE SCOGGIN,
B. SCOGGIN and H. SCOGGIN, minors,
by and through TINA SCOGGIN;
TINA SCOGGIN, individually and
KEVIN SCOGGIN, individually,
Plaintiffs,
vs.
SOUTHWESTERN ENERGY COMPANY,
Defendant.
DEC 0 7 2012
,
By:_:JORMACK, CLERK
Case No. L\ .\J. w Lw3 JJ\>\Y\
This case assigned to District Judge
and to Magistrate
CLASS ACTION COMPLAINT
COME NOW the Plaintiffs, for themselves and on behalf of all similarly
situated persons, and for cause of action against the Defendants, state as follows:
INTRODUCTION
This class action lawsuit is filed on behalf of the named Plaintiffs, Leslie
Wayne Scoggin; Tina and Kevin Scoggin, individually, and B. Scoggin and H.
Scoggin, minors through Tina Scoggin, and all those citizens and/or residents
and/or property owners who live and/or own property within a 500 foot radius of
any Drilling/ Hydraulic Fracturing operation being operated by the Defendant
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Case 4:12-cv-00763-DPM Document 1 Filed 12/07/12 Page 1 of 24
within the State of Arkansas.
This action is being brought against the Defendant for the creation of a
noxious and harmful nuisance; contamination; physical harm; trespass, property
damage and diminution of property values that the drilling and fracking
operations have caused and continue to cause.
This action seeks, among other relief, injunctive relief as follows:
A. Require medical monitoring of all persons within the aforementioned
geographical parameters to insure no health problems arise due to ongoing
exposure to the Defendants' activities.
JURISDICTION AND VENUE
1. Plaintiffs, Leslie Wayne Scoggin; Tina and Kevin Scoggin and B.
Scoggin and H. Scoggin, minors, are resident citizens of White County, Arkansas,
residing at 708 Scoggin Road, Bradford, White County, Arkansas.
2. Defendant, Southwestern Energy Company, is a Delaware
corporation with its principal place of business in Houston, Texas. Southwestern
Energy Company, directly and through its agents and/or ostensible agents, was
and continues to be engaged in the creation and operation of drilling and fracking
operations in and about the State of Arkansas. The Defendant is responsible,
either directly or through its agents and/or apparent agents, for the creation and
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operation of drilling and [racking sites located in the vicinity of Plaintiffs'
properties. Defendant, Southwestern Energy Company, has done, and continues to
do, business in the State of Arkansas, and has committed a tort, in whole or in part,
in the State of Arkansas, and likewise has sufficient minimum contacts with
Arkansas.
Southwestern Energy Company
c/o The Corporation Company
124 West Capitol Ave., Suite 1900
Little Rock, AR 72201
3. Plaintiffs' causes of action arise in the State of Arkansas as a
direct result of the tortious conduct of the Defendant and continuing tortious
conduct of the Defendant.
4. The Court has jurisdiction over this action under 28 U.S.C.
13 3 2( a)( 1) because the Plaintiffs, and the Defendants, are citizens of different
states and the amount in controversy exceeds $75,000.00, excluding interest and
costs.
5. The actions complained of herein occurred in the Eastern District of
Arkansas and venue is proper in this Court.
6. Plaintiffs specifically allege that valid service of process has
been issued and will be properly served upon the Defendant herein.
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7. Plaintiffs specifically allege that there is no individual or legal entity
who is not a party to this action, who caused or contributed to the injuries and
damages for which the Plaintiffs seek recovery herein.
8. The Defendant is being sued individually, and under the Doctrine of
Respondeat Superior, for the actions and/or inactions of the Defendant,
Southwestern Energy, its agents, apparent agents, servants, employees and
subsidiary corporate entities.
FACTS
9. The Defendant herein conducts gas drilling in an area known as the
Fayetteville Shale, which is located in central Arkansas and covers nearly four
thousand square miles of land. The term "Fayetteville Shale" refers to both a
geographical location, (Central Arkansas) as well as a specific rock formation
made up of shale rock. The rock formation comprising the Fayetteville Shale
ranges in depth from one thousand feet below the surface to as deep as seven
thousand feet below the surface of the earth.
10. Natural gas drilling involves drilling a well bore down to a selected
rock formation, turning the drill in a horizontal direction and drilling outward from
the vertical bore. Thereafter, a series of explosions are set off along the
wellbore. Once the bore is perforated by the explosive charges, the well bore is
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then hydraulically fractured using high pressure injection of fracturing fluid and
other materials into the rock formation to create fracture lines and fissures which
then allow gas to flow from the fractures to the wellbore. That process is referred
to as "fracking." Illustration of a wellbore is as follows:
11. The fracking process uses a mixture of water, and sand, and
numerous caustic, poisonous, flammable, carcinogenic and harmful compounds to
fracture the shale rock formation and release the methane and hydrogen sulfide
gases within the shale. The compounds used in formulating the fracking fluid can
include diesel fuel, formaldehyde, toluene, hydrochloric acid, methanol,
ammonium persulfate and sodium tetraborate pentahydrate in varying
concentrations. In addition to the fracking fluid, the process also requires the
injection of"proppants" into the fractures to prop open the pathways for the gases
to exit the shale formation and enter the well bore.
12. The process of drilling and fracking a shale gas well causes migration
of noxious gases, fumes, exhaust, silica dust and other harmful substances from
the actual drilling pad onto the air, lands and properties which surround the
drilling pad.
13. Such migration occurs when the gases, atomized fluids, silica dust
and other noxious materials become airborne and are then carried by the wind and
fan out in an ever widening area.
14. Video Captures taken at the Plaintiffs' residence demonstrates the
extent of the airborne pollutants at the frack site in question. Illustrations below.
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15. The process of drilling and fracking a shale gas well also causes
extreme levels of noise and vibrations which in tum causes damage to surrounding
structures, including but not limited to buildings, homes, foundations, and well
and cistern enclosures.
16. The process of drilling and fracking a shale well also involves
hundreds and hundreds of trucks traveling to and from the fracking site, 24 hours a
days, 7 days a week for months at a time. In addition these same trucks gather
and "muster" in the vicinity of the site, sitting with their engines idling and
emitting large quantities of toxic and carcinogenic exhaust fumes.
1 7. In short, a rural, pastoral landscape is turned into an industrial
development overnight, with all its attendant problems and hazzards when the
Defendant elects to drill and frack a shale gas well.
18. All of the aforementioned problems are amplified when the Defendant
elects to drill in the immediate vicinity of a residence.
19. In addition to the migration of noxious and toxic fumes and particles
in the air surrounding the fracking site, the process of hydraulic fracturing and gas
gathering causes the fracking fluids as well as proppants and others substances to
migrate and travel along the fractures, fissures and fault lines which are created
during the fracturing process. In addition, those man-made fractures and fissures
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intersect and join with the natural fractures, fissures and faults which already exist
in the rock formation. As a result, there is migration of the fracking fluid as well
as methane and hydrogen sulfide all along these fracture lines. It is this migration
which results in the contamination of soil, groundwater, lakes, ponds, reservoirs,
springs, creeks, drinking water wells on the properties located in the vicinity of
shale gas wells.
20 According to Lawrence Bengal, the Head of the Arkansas Oil and
Gas Commission, (AOGC) gas and fluids can migrate from the fractured shale, up
through numerous layers and strata to the point where it can contaminate water
wells at a depth of less than 200 feet.
21. Mr. Bengal has testified under oath that such migration of both gas
and/or fluid occurs when gas or fluid travels up the well bore between the metal
pipe placed in the wellbore, and the surrounding rock. To attempt to prevent such
migration, a cement casing is installed to fill the gap between the pipe and the rock
formation. That cement casing however can allow migration up the wellbore,
even in instances where there is an apparently good cement job.
" A The fluid migration?
MR. PERKINS: Object to the form.
Q Fluid or gas.
A It can happen on any cement job, yes.n (Deposition of
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Lawrence Bengal at Page 135)
22. That migration has been found to occur in the Fayetteville Shale,
most recently in the area of Guy/Quitman Arkansas where gas migrated up
through various formations until it reached a domestic drinking water well where
it began to spew out, causing evacuations of nearby residents.
23. According to AOGC's Bengal, there is no way to predict when that
migration will occur. It can happen shortly after the well is drilled and fracked, or
any number of years later as the gas and fluids continues to make its way up the
well bore and into the various rock formations through which the well bore passes.
24. The Plaintiffs reside on a 20 acre parcel of land located in Bradford,
Arkansas. This land has been in the Scoggin family for over 100 years. B.
Scoggin is five years old and H Scoggin three years old.
25. In October of 2010, Defendant began the process of constructing a
drilling pad/platform for the eventual erection of a drilling rig directly across from
Plaintiffs' property, less than 350 feet from the home itself. The specific pad
location was along the property line on land owned by one of the Scoggin's
neighbors.
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26. To construct the drilling pad/platform, Defendant brought in numerous
pieces of heavy earth moving equipment to prepare the site for the eventual
drilling platform. The Defendant's activities were carried out continuously, (day
and night), generating large amounts of construction dust and debris, and loud
noise on a constant basis which severely interfered with Plaintiffs' quiet
enjoyment of their home and property.
27. Thereafter, the Defendant and its agents and apparent agents and
subsidiary companies and entities began drilling three separate well bores on the
drill pad located less than 350 feet from Plaintiffs' residence. Thereafter, the
Defendant and its agents and apparent agents and subsidiary companies and
entities fracked the three wells, again at a distance of less than 350 feet from
Plaintiffs' home.
28. The drilling and fracking operations lasted for almost six months,
during which time the Scoggin's home became uninhabitable because of the noise,
vibration, light and air pollution which was caused by the Defendant's operations
being carried out less than 350 feet from Plaintiffs' residence.
29. In addition, the construction of the well pad significantly altered the
flow of run-off water from the adjacent property in such a way as to cause the
run-off to flow and accumulate in Plaintiffs' hay pasture, ruining Plaintiffs' crop
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of hay and rendering that pasture unusable for either growing hay or grazing
livestock.
30. The Plaintiffs were continually subjected to extremely loud noise,
vibration and air and light pollution from the Defendant's operations which was
not only harmful, but was also extremely upsetting and frightening.
31. The Defendant's drilling and fracking operations caused severe,
harmful, carcinogenic and toxic pollution of the air in and around Plaintiffs' home
with diesel exhaust fumes, atomized fracking fluid and silica dust. In home air
measurements showed toxic levels of benzene and other pollutants which
emanated from the Defendant's operations less than 350 feet from the Plaintiffs'
home. Air quality measurements taken inside the Scoggin home during the
drilling/fracking operations showed extreme levels of carcinogenic and toxic
airborne substances which emanated from the drilling/fracking.
32. The Defendant's operations have caused the cistern on Plaintiffs'
property to cease operating properly. The natural water flow which fed the cistern
has been significantly altered and the water which is available is contaminated and
unsuitable for drinking.
33. The Defendant's activities, carried out directly and through
Defendant's agents and apparent agents and subsidiary companies and entities
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caused the following harm and damage to your Plaintiffs and others similarly
situated:
a. Pollution and/or contamination of the soil with harmful and/or
hazardous and/or caustic and/or carcinogenic and/or poisonous
and/or flammable chemicals and compounds;
b. Pollution and/or contamination of the groundwater with
harmful and/or hazardous and/or caustic and/or carcinogenic
and/or poisonous and/or flammable chemicals and compounds;
c. Pollution and/or contamination of the cistern with harmful
and/or hazardous and/or caustic and/or carcinogenic and/or
poisonous and/or flammable chemicals and compounds;
d. Pollution and/or contamination of the air and atmosphere with
e. Structural damage to Plaintiffs' residence and cistern
CAUSES OF ACTION
STRICT LIABILITY
34. The Plaintiffs repeat and reallege the allegations of paragraphs
"1" through "33" ofthis Complaint, as if set forth in this paragraph at length.
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35. The harmful and/or hazardous and/or caustic and/or
carcinogenic and/or poisonous and/or flammable chemicals and compounds
resulting from the Defendant's drilling and fracking operations, are of a toxic and
hazardous nature capable of causing severe personal injuries and damages to
persons and property, and are therefore ultra hazardous and abnormally dangerous.
36. The harmful and/or hazardous and/or caustic and/or
carcinogenic and/or poisonous and/or flammable chemicals and compounds
resulting from the Defendant's drilling and fracking operations, are of a toxic and
hazardous nature capable of causing severe personal injuries and damages to
persons and property, regardless of the degree of caution exercised by the
Defendants.
37. The Defendant's activities created an unacceptable risk of harm
to the Plaintiffs and their property, along with all other persons and property
similarly situated.
38. The Defendant, by engaging in abnormally dangerous and
ultra hazardous activities, are strictly liable without regard to fault for all the
damages and injuries to the Plaintiffs proximately caused by their drilling and
fracking operations.
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NUISANCE
39. The Defendant's drilling and fracking operations
unreasonably interfered, and continues to interfere, with the safe use and
enjoyment of adjoining and nearby lands and thus disturbs the peaceful, quiet and
undisturbed use and enjoyment of such property.
TRESPASS
40. The Defendant's drilling and fracking operations have trespassed on
the land of the Plaintiffs, and all others similarly situated, through the migration
and accumulation of harmful and/or hazardous and/or caustic and/or carcinogenic
and/or poisonous and/or flammable chemicals and compounds upon and under the
land and the air.
42. The Defendant's trespasses have resulted in physical damage
to the property of the Plaintiffs, and all others similarly situated, thereby causing
injury to the right of possession of such property.
NEGLIGENCE
43. The Defendant owed a duty of care to the Plaintiffs to responsibly
engage in gas production activities in and around the Plaintiffs' home.
44. The Defendant had a duty to take all measures reasonably
necessary to inform and protect the Plaintiffs from the dangers which accompanied
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the migration of harmful and/or hazardous and/or caustic and/or carcinogenic
and/or poisonous and/or flammable chemicals and compounds due to the
operations of the Defendant.
45. The Defendant, including its agents, apparent agents,
servants and/or employees, knew or in the exercise of reasonable care should have
known, that their operations were resulting in a migration of harmful and/or
hazardous and/or caustic and/or carcinogenic and/or poisonous and/or flammable
chemicals and compounds.
46. The Defendant directly, and through Defendant's agents and apparent
agents and subsidiary companies and entities including their agents, apparent
agents, servants and/or employees, knew or in the exercise of reasonable care
should have known, that the migration of harmful and/or hazardous and/or caustic
and/or carcinogenic and/or poisonous and/or flammable chemicals and compounds
exposed the Plaintiffs and their property to a risk of pollution and/or contamination
of their property.
agents, servants and/or employees should have taken reasonable precautions and
measures to prevent or mitigate migration of harmful and/or hazardous and/or
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caustic and/or carcinogenic and/or poisonous and/or flammable chemicals and
compounds , including adequate planning.
agents, servants and/or employees knew or in the exercise of reasonable care
should have known, that once a migration occurred, the Plaintiffs would be
harmed.
agents, servants and/or employees, knew or in the exercise of reasonable care
should have known, that the harm caused to the Plaintiffs and their property was a
foreseeable and inevitable consequence of the migration ofharmful and/or
hazardous and/or caustic and/or carcinogenic and/or poisonous and/or flammable
chemicals and compounds due to the Defendant's operations.
agents, servants and/or employees, acted unreasonably and negligently in causing
the migration of harmful and/or hazardous and/or caustic and/or carcinogenic
and/or poisonous and/or flammable chemicals and compounds, and failed to take
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reasonable measures and precautions necessary to avoid the damage that was
sustained by the Plaintiffs and their property.
51. The Defendant's acts and/or omissions mentioned herein were
the direct and proximate cause of the damages sustained by the Plaintiffs and their
property.
52. Some or all of the acts and/or omissions of the Defendant directly and
through its agents, servants, employees, apparent agents and subsidary companies
and entities, were grossly, recklessly and wantonly negligent, and were done with
utter disregard for the consequences to the Plaintiffs, and therefore the Plaintiffs
are entitled to an award of punitive damages.
53. The Plaintiffs in no way caused or contributed to the damages
they have sustained.
CLASS ACTION
"1" through "53" of this Complaint, as if set forth in this paragraph at length.
55. The Plaintiffs bring this action for themselves and on behalf of a
class of other similarly situated persons consisting of the following: all those
citizens and/or residents and/or property owners who live and/or own property
within a 500 foot radius of any drilling and fracking operation by the Defendant
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Southwestern Energy, and its agents and apparent agents and subsidiary
companies and entities including their agents, apparent agents, servants and/or
employees.
56. The Plaintiffs are members of the class that they seek to represent.
57. The class is so numerous that joinder of all members is impracticable.
58. There are questions oflaw and fact which are common to the class,
including but not limited to:
a. Whether the Defendant's activities caused a migration of
b. Whether the migration of harmful and/or hazardous and/or
caustic and/or carcinogenic and/or poisonous and/or flammable
chemicals and compounds caused pollution or contamination of
the soil of the class members;
c. Whether the migration of harmful and/or hazardous and/or
the air and property of the class members;
d. Whether the migration of harmful and/or hazardous and/or
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the water wells of the class members;
e. Whether the Defendant's activities constitute a nuisance;
f. Whether the Defendant's are strictly liable for their actions
and/or inactions;
g. Whether the Defendant's activities were negligently performed;
h Whether the Defendant's activities caused a trespass upon the
land of the class members;
1. Whether the Defendant's activities exposed the Plaintiffs and
others similarly situated to harmful levels of pollutants which
potentiate future medical problems for the Plaintiffs and others
similarly situated.
59. The claims of the representative parties are typical of the class
members because the action arises from the same common wrongs against the
members of the class.
60. The Defendant has acted on grounds generally applicable to the class
making appropriate injunctive relief with respect to the class as a whole. The
injunctive action sought as described previously, is necessary because of the severe
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and irreparable harm which the migration of harmful and/or hazardous and/or
caustic and/or carcinogenic and/or poisonous and/or flammable chemicals creates
upon the property of the Plaintiffs and all other class members.
61. Questions of law and fact common to the members of the class
predominate over any questions affecting only individual members because
preliminary, overarching issues common to all class members predominate over the
individual issues.
62. A class action is superior to other available methods for the fair
and efficient adjudication of the controversy because class certification is a more
efficient way to handle the case, the class is manageable and class certification will
avoid a multiplicity of individual actions.
63. The Plaintiffs will fairly and adequately represent and protect
the interests of the class.
INJURIES AND DAMAGES
"1" through "63" of this Complaint, as if set forth in this paragraph at length.
65. As a direct and proximate result of the unlawful activities of the
Defendant, the Plaintiffs, and all others similarly situated, have suffered the
following losses and damages:
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a. Loss of use and enjoyment of their property;
b. Contamination of their soil;
c. Contamination of their groundwater;
d. Contamination of their well water;
e. Contamination of their air and atmosphere;
f. Severe diminution in value of their property;
g. Fear, shock, mental distress and physical harm
h. Physical injuries resulting from breathing silica dust and other
harmful chemicals which emanated from the defendant's
activities and which contaminated Plaintiffs lungs with dust
particles.
1. Medical and physical complications resulting from the exposure
to Defendant's airborne industrial pollution at the drilling site.
J. Trespass upon the properties of the class members
RELIEF SOUGHT
WHEREFORE, PREMISES CONSIDERED, the Plaintiffs sue the Defendant
herein, jointly and severally as follows:
A. Compensatory damages for the injuries enumerated above in the
amount of $10,000,000.00 (TEN Million Dollars).
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B. Punitive Damages in the amount of$15,000,000.00 (FIFTEEN
Million Dollars).
Plaintiffs further pray for:
a. Certification of a class as requested;
b. Judgments for compensatory damages for all class members in
an amount commensurate with the damages as set forth above;
c. Judgments for punitive damages for all class members in an
amount commensurate with the damages as set forth above;
d. Installation of municipal or city water for all class members.
e. In the alternative to Paragraph d, above, that the Defendants be
required to establish a monitoring system to regularly test all
domestic water wells of the class members.
f. Establishment of a monitoring fund to pay for monitoring of
air, soil, groundwater, and atmosphere for the presence of
harmful /or hazardous and/or caustic and/or carcinogenic
and/or poisonous and/or flammable chemicals and
compounds;
g. Establishment of a monitoring fund to pay for medical
monitoring of the named Plaintiffs and class members similarly
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situated, for the presence or emergence of health effects
stemming from the Defendant's generation and/or use of
h. An award of the costs of litigating the case;
1. An award of attorney fees;
J. An award of pre-judgment interest;
k. All other relief to which the Plaintiffs may be entitled.
PLAINTIFFS RESPECTFULLY REQUEST A TRIAL BY JURY.
DEAL, COOPER & HOLTON, PLLC.
Timothy It. Holton (2001 101)
John R. Holton (2009056)
296 Washington Ave.
Memphis, TN 3 8103
(901)523-2222
and
Michael P. McGartland
MCGARTLAND AND BORCHARDT
1300 South University Drive
Fort Worth, Texas
(817)332-9300
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Scoggins Case From White County Filed in Eastern District Federal Court

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Scoggins Case From White County Filed in Eastern District Federal Court

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS "''

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