Judge drops lab from lawsuit
A Washington County judge has dismissed a testing laboratory from a lawsuit accusing natural gas drillers of contaminating residents’ water near an Amwell Township well site.
Senior Judge William Nalitz wrote in his decision that the allegation TestAmerica Laboratories Inc. “posted partial data results so that (Southpointe-based Range Resources Appalachia LLC) could thereby deceive a government agency and thereafter gratefully favor TestAmerica with future business is only that, an allegation, based purely on speculation, with no support whatsoever in the record.”
In the ruling, issued earlier this month, Nalitz sided with TestAmerica. The O’Hara Township, Allegheny County-based lab had denied responsibility for any alleged misrepresentation in water-testing results provided to an Amwell Township family and asked the judge to dismiss claims of fraud and civil conspiracy lodged by Beth, John and Ashley Voyle against the company.
The family is among plaintiffs in a complex ongoing lawsuit against Range and various contractors that alleges drilling at Range’s Yeager site caused toxic pollution, including to water sources, and put the health of those living nearby in jeopardy.
Problems at the Yeager site were part of a $4.15 million fine the state Department of Environmental Protection assessed against Range in 2014.
The Voyles alleged that TestAmerica employees provided Range with instructions that helped it omit the levels of nitrates and other contaminants from the results of tests on the family’s water performed in 2011 and shared with DEP. The suit said those partial results, claiming the water was not contaminated, were passed on to the family.
The federal Environmental Protection Agency later determined the Voyles’ water was unsafe.
“While we have respect for the court, we disagree with the finding that the laboratory was unaware that altered results would or could be used,” said John Smith, one of the Voyles’ attorneys, of Nalitz’s decision. “With the full test results, the federal government found the water contaminated and unfit for human consumption.”
Full test results obtained by the Voyles’ attorneys in discovery showed findings left out of from the results provided to DEP included chemicals used in fracking operations, levels of nitrates that exceeded the maximum limits and other substances.
The family’s attorneys wrote in a court filing that the lab “followed Range’s direction not to provide the test results to the Voyles, but instead assisted Range with ‘customizing’ its results to ‘hide’ certain parameters” from the family.
In a 10-page memorandum supporting his decision, Nalitz cited an email from Carla Suszkowski, Range’s director of regulatory policy, to Alan Eichler of DEP that called those results “preliminary” and a “partial analysis” and argued there was “no allegation or claim whatsoever that Range was misled by the partial results of the TestAmerica analysis. When Range did distribute via email the partial results to DEP it clearly referred to them as incomplete.”
Nalitz also cited in his memorandum a portion of the terms of use for the lab’s Total Access Services that indemnifies the lab from claims arising from customers’ use of the system.
In a court filing, attorney Kendra Smith, who also represents the Voyles, had cited a different portion of the terms Range signed. That part indemnifies the company against claims “due to alterations or deletions to the report or the use of incomplete results” – language, the attorney argued, that showed the lab recognizes “its Total Access system allows for the generation of fraudulent laboratory reports.”