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Hiser v. XTO Energy, Inc.

United States Court of Appeals, Eighth Circuit

October 3, 2014

Ruby Hiser, Plaintiff-Appellee
v.
XTO Energy, Inc., Defendant-Appellant

Submitted: September 10, 2014.

Page 774

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.

For Ruby Hiser, Plaintiff - Appellee: John T. Holleman, Maryna O. Jackson, Timothy A. Steadman, HOLLEMAN & ASSOCIATES, P.A., Little Rock, AR.

For XTO Energy, Inc., Defendant - Appellant: Julie DeWoody Greathouse, Kimberly D. Logue, Gregory Alan Perkins, James D. Rankin, III, PPGMR LAW, PLLC, Little Rock, AR.

Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.

OPINION

Page 775

BENTON, Circuit Judge.

Ruby Hiser won a jury verdict against XTO Energy, Inc. XTO moved for a new trial, alleging that extraneous, prejudicial information was brought to the jury's attention. The district court denied the motion and declined to subpoena the jury foreperson. XTO appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Hiser sued XTO, an oil-and-natural-gas producer, for damages caused by vibrations from drilling operations. The jury heard no evidence about hydraulic fracturing--a drilling method called " fracking." 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.

XTO moved for a new trial, claiming the " jury verdict was tainted by the consideration of extra-record evidence." With the court's approval, XTO submitted two affidavits from juror Carrie Tranum. Hiser countered with affidavits from juror Novella Watson and foreperson Michael Horn. Tranum and Watson later testified at a hearing.

The three jurors agreed: during deliberations, 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 jurors disputed the scope of the fracking discussion. According to Tranum, " 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." 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." Watson ...


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