Fairways Offshore Exploration, Inc. v. Patterson Services, Inc. and Cudd Pressure Control, Inc.

Opinion issued January 31, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00079-CV
———————————
FAIRWAYS OFFSHORE EXPLORATION, INC., Appellant
V.
PATTERSON SERVICES, INC. AND CUDD PRESSURE CONTROL, INC.,
Appellees
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2007-59388
CONCURRING MEMORANDUM OPINION
I join in the Court’s opinion and specifically agree with the Court that expert
testimony is generally required to prove the standard of care for a reasonably
prudent sour gas owner. But the standard of care may also be established by other
evidence in some circumstances. I write separately to address why the other
evidence offered by Patterson Services, Inc. did not establish the standard of care.
Introduction
Sour gas is a natural gas containing significant amounts of hydrogen sulfide
(H2S), a corrosive that is lethal to unprotected humans. T-95 is an H2S resistant
pipe. In late November 2006, a joint of T-95 in a sour gas well broke during
snubbing operations, causing a blowout along with damage to the pipe and other
equipment and eventually causing the well’s lessee and owner, Fairways Offshore
Exploration, Inc., to shut it down. The T-95 pipe in the well, which was known as
the Federal 1-8, was initially protected from exposure to the H2S by a “blanket” (or
“pad” or “barrier”) of nitrogen gas (which is benign to humans) that was pumped
into the well, pushing the H2S down into the well and away from the surface.
Fairways, a company with only ten employees, hired Cudd Pressure Control,
Inc. to perform snubbing services. Snubbing involves using a snubbing unit to run
pipe into and out of a well using a hydraulic workover rig while completing the
well “under pressure.” The snubbing unit was necessary because the well
contained several deviations, as it was directionally drilled. Cudd recommended
2
that Fairways lease the T-95 pipe from Patterson as the work string for Federal 1-
8.1
During the snubbing operations, a packer was set at a depth of
approximately 15,000 feet. But the setting tool that is on top of and sets the packer
would not release, causing it, along with the packer and the work string, to become
stuck. After unsuccessful attempts to pull the tool loose, Fairways instructed Cudd
to gradually increase the pull on the setting tool at 2,000 pound increments every
five minutes until its sheer pin snapped and released the tool. According to the
evidence, this is a standard procedure for attempting to release the tool. By the end
of the day, the Cudd crew was pulling with 115,000 pounds of force but the setting
tool still had not released. Fairways, at Cudd’s insistence, then shut down Federal
1-8 for the evening.
Fairways, after consulting with Baker Hughes, which had provided the
setting tool, decided to “flow the well” overnight.2 “Flowing the well” includes
evacuating the nitrogen blanket. Mario Garcia from Cudd informed Gary Knape,
Fairways’s “company man” on site, that removing the nitrogen blanket could allow
1
The work string is used to operate tools inside the well, as opposed to the pipe
through which gas is produced from the well. Work strings are composed of joints
of pipe.
2
“Flowing the well” reduces the pressure in the well, increases the weight on the
tubing string, and causes the string to be held in tension.
3
the H2S to damage Cudd’s equipment and tubing, but Knape told Garcia that
Fairways wanted to proceed. Garcia did not argue with Knape because he “felt
comfortable with what we were going to do because our pipe was still . . . well
within its limits to pull what we were going to pull.” The removal of the nitrogen
blanket exposed the top almost 5,000 feet of the well to the H2S. The next day, the
Cudd crew continued to pull on the setting tool with increasing pounds of pressure.
After they reached 128,000 pounds of pressure, joint 18 of the T-95―which was
located at a depth of over 500 feet below ground―broke.3 The parties did not
dispute that the pipe separated due to sulfide stress cracking, which occurs as pipe
becomes brittle from exposure to H2S; sulfide stress cracking cannot occur without
exposure to H2S; and if the nitrogen blanket had not been removed, the T-95 tubing
would likely not have cracked from sulfide stress. The primary liability disputes
were whether (1) treated pipe—like the T-95—should suffer sulfide stress cracking
when it is placed in a well with a level of H2S that was “off the charts” without
leaving the nitrogen blanket around it for protection and (2) the pipe’s failure was
caused by tong marks in the pipe from prior uses that made it susceptible to sulfide
stress cracking or by the removal of the nitrogen blanket.
The jury found that Fairways’s negligence caused the blowout and awarded
Patterson, the pipe’s owner, more than $420,000. But Patterson did not present any
3
There were 499 joints of pipe with 481 joints below joint 18.
4
expert testimony that Fairways was negligent.4 The jury’s verdict necessarily
means that it concluded that Fairways was wrong—or, to use Patterson’s word,
“improvident”—in its assessment that the use of H2S resistant T-95 pipe provided
sufficient protection in itself so Fairways could safely flow Federal 1-8 and
evacuate its nitrogen blanket. In other words, Patterson established that Fairways’s
decision to remove the blanket caused the blowout. But just because Fairways’s
decision was wrong does not mean that the decision was negligent. To demonstrate
that it was negligent, Patterson had to demonstrate that Fairways failed to operate
as a reasonably prudent operator. Patterson failed to do so.
Requirement of Expert Testimony
To prevail on its negligence claim, Patterson was required to establish four
elements: 1) Fairways’s duty to act according to an applicable standard of care; 2)
a breach of the applicable standard of care; 3) an injury; and 4) a causal connection
between the breach of care and the injury. Ethicon Endo-Surgery, Inc. v. Gillies,
343 S.W.3d 205, 211 (Tex. App.—Dallas 2011, pet. denied); Fence v. Hospice in
the Pines, 4 S.W.3d 476, 478 (Tex. App.—Beaumont 1999, pet. denied). I agree
with the Court that “the proper operation of a sour gas well is not a matter within
4
Patterson’s metallurgist, Dr. Russell Kane, testified that the removal of the
nitrogen blanket caused the incident; however, he was not permitted to testify that
the operator was negligent in removing the blanket because he was not designated
as an expert on negligence. Nor did he testify that a nitrogen blanket can never be
removed or that it is common knowledge in the oil patch that a blanket cannot be
removed.
5
the experience of laypersons. Specifically, whether or not the use of a nitrogen
blanket in a well, such as the one in this case, was necessary to protect the well
piping and equipment, would be unfamiliar to the ordinary person.” Slip Op. at 15.
I also agree with the Court that neither Dr. Russell Kane, a metallurgist and
member of the National Association of Corrosion Engineers (NACE) retained by
Patterson,5 nor Mario Garcia, Cudd’s supervisor over the snubbing crew at the
Federal 1-8,6 provided expert testimony on the standard of care. Thus, absent other
evidence from which the jury could determine the applicable standard of care and a
5
Patterson also relies on Dr. Kane’s testimony that the T-95 pipe at joint 18 failed
because it experienced “the perfect storm” of (1) the high stress created as they
pulled on joint 18, which was hanging in the well and supporting fifty-nine tons of
other pipe below it; (2) the right temperature range present near the surface, which
made the pipe most susceptible to sulfide stress cracking; and (3) a severe H2S
environment. According to Dr. Kane, if the nitrogen blanket had not been
removed, the other two conditions would not have been sufficient to cause the pipe
to separate. This testimony, however, addresses causation, not negligence. See
generally Hager v. Romines, 913 S.W.2d 733, 735 (Tex. App.—Fort Worth 1995,
no writ) (rejecting “attempt to bootstrap lay witnesses’ testimony on causation into
expert testimony on a violation of the standard of care”).
6
Garcia also testified that he told Gary Knape, Fairways’s independent company
man who acted as its “eyes and ears” on the job, that the removal of the nitrogen
blanket could allow the H2S to come to the surface and damage its equipment and
tubing. Knape, who reported to a Fairways engineer in Houston named Bobby
Vasquez, told Garcia that Fairways wanted to proceed. But Cudd’s “warning”
does not establish a standard of care; it merely reflects Garcia’s opinion about the
proper course of action. Vasquez, Fairways’s production superintendent, testified
that Fairways was not concerned about pulling on the T-95 pipe to release the
setting tool because it had a rated yield strength of 171,200 pounds of force and
they planned to exert up to no more than 150,000 pounds of force. He claimed that
Patterson represented to Fairways that T-95 pipe was suitable for an H2S
environment without a nitrogen blanket.
6
violation of that standard by Fairways when it removed the nitrogen blanket,
Patterson provided no evidence that Fairways failed to exercise the reasonable care
that a reasonably prudent sour gas well operator would have exercised under the
same or similar circumstances.
Other Evidence on the Standard of Care
I write separately to explain why the other evidence offered by Patterson did
not satisfy its burden to demonstrate Fairways’s negligence. As an alternative
argument, Patterson contends that it established Fairways’s negligence through (1)
Fairways’s departure from its own well-completion procedures; (2) Fairways’s use
of a nitrogen blanket on another well; (3) concessions made by Fairways’s vice
president during his cross-examination; and (4) Fairways’s failure to perform a
well-condition analysis as required by the NACE standard MR0175. Fairways does
not contest Patterson’s assertion that when expert testimony is not presented on the
standard of care but the conduct in question involved specialized equipment or
expertise beyond the knowledge of other ordinary jurors, other evidence may, in
certain narrow circumstances, establish the applicable standard. See Brandt v.
Surber, 194 S.W.3d 108, 140 (Tex. App.—Corpus Christi 2006, pet. denied)
(Castillo, J., dissenting) (stating that proof of applicable standard of care in claim
of professional negligence “usually requires expert testimony”); cf. Battaglia v.
Alexander, 177 S.W.3d 893, 899–900 (Tex. 2005) (holding that breach of
7
contractual duty for anesthesiologist’s professional association to comply with
standards specified in contract did not prove liability for negligent failure to render
adequate medical care, and expert testimony was necessary to establish standard of
care). I agree that although expert testimony is generally necessary to establish the
standard of care when the matter is beyond the knowledge of ordinary jurors, that
knowledge may be provided in some cases by other evidence, such as documentary
evidence setting forth the standard of care. I, therefore, turn to whether such
evidence existed in this case.
1. Fairways’s well-completion procedures
Fairways’s well-completion procedures do not satisfy Patterson’s burden of
proving Fairways’s negligence because Patterson misinterprets the procedures and,
more importantly, the procedures do not establish what a reasonable operator
would have done under the same or similar circumstances.
Fairways’s completion procedures set out forty-one steps to be taken during
well completion. Step eight―the step that Patterson claims was
violated―concerns the application of the nitrogen blanket before snubbing. It
requires that a nitrogen blanket be placed in the well before pipe is inserted into the
well. It is undisputed that the blanket was applied before snubbing commenced.
The question here was not the original placement of the nitrogen blanket but its
removal after the setting tool became stuck. The completion procedures do not
8
address the steps to be taken in that situation.7 Contrary to Patterson’s contentions,
Fairways’s completion procedures did not forbid the removal of a nitrogen blanket
during the operations in question.
Additionally, there was no evidence that the completion procedures could
not be changed during the drilling process. On the contrary, there was evidence
that the normal procedures governing the use of the nitrogen blanket might need to
be revised based on changes in the drilling conditions. According to Bobby
Vasquez, Fairways’s production superintendent, “under the completion procedure,
the nitrogen blanket would stay in the well until the very last operation in which
the work string was removed . . . unless anything changed on the well [so] that we
need[ed] to do something different.” 8
Most importantly, there was no evidence that Fairways’s procedures reflect
an industry custom or practice. An industry custom or practice is some evidence of
the standard of care in typical negligence cases. Kissinger v. Turner, 727 S.W.2d
7
Mario Garcia, Cudd’s supervisor over the snubbing crew at the Federal 1-8, also
testified that Fairways’s well-completion procedures required a “nitrogen pad to
be applied to the well bore before any tubing was run into the well.” He pointed
out that the procedure did not contain any provision allowing the blanket to be
removed “while Cudd was running equipment into the well.” But neither did the
completion procedures forbid such action; they were simply silent on the matter.
8
For example, although the procedure called for the packer to be set on a wire line,
the packer was actually set on tubing because of concerns that the wire line might
get stuck.
9
750, 755 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.). Patterson relies on Bay
Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216 (Tex.
App.—San Antonio 2009, pet. denied), for the proposition that a manual or
industry practice may establish the applicable standard of care. In that case, the
jury found that a drilling engineering firm negligently caused a well’s blow-out. Id.
at 222. The plaintiff presented expert testimony that the firm’s decision to drill
without running certain tests was negligent and caused the blowout. Id. at 227−28.
On appeal, the firm contended that there was no evidence of causation; however, it
did not raise a no-evidence challenge to the negligence finding. Id. at 222.
Bay Rock is distinguishable from this case. There, the plaintiff relied on both
expert testimony and a manual. The manual reflected industry practices. In
contrast, the existence of an entity’s internal manual setting forth its own
procedures does not, standing alone, establish a standard of care. FFE Transp.
Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004); Cleveland Reg’l Med.
Ctr., L.P. v. Celtic Props., L.C., 323 S.W.3d 322, 351–52 (Tex. App.—Beaumont
2010, pet. denied); Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—
Dallas 2007, no pet.); Guerra v. Regions Bank, 188 S.W.3d 744, 747 (Tex. App.—
Tyler 2006, no pet.); Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 413 (Tex.
App.—Fort Worth 2003, no pet.); see also Jacobs–Cathey Co. v. Cockrum, 947
S.W.2d 288, 291–92 (Tex. App.—Waco 1997, pet. denied) (holding that
10
company’s internal policy of removing debris left at its work sites by other parties
did not impose upon company legal duty to parties injured by unremoved debris);
Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston
[14th Dist.] 1996, no writ) (holding that company’s safety policies restricting
consumption of alcohol on its premises did not create legal duty that would subject
company to liability for failing to comply with policies). As explained in FFE, a
company’s self-imposed policy or practice, “taken alone, does not establish the
standard of care that a reasonably prudent operator would follow.” FFE Transp.
Servs., 154 S.W.3d at 92; see also U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118,
139 (Tex. 2012) (“The mere existence of federal regulations does not establish the
standard of care.”).
2. Exhibit 60
Patterson next relies on a Fairways’s daily time-entry report reflecting the
use of a nitrogen blanket on another H2S well near Federal 1-8. Patterson contends
that this report is evidence that Fairways had used a nitrogen blanket on a “sister
well to protect equipment and tubing in a similar fishing operation to retrieve stuck
equipment in [a sour gas] well” and establishes a general industry practice.
The mere fact that Fairways used a nitrogen blanket during a fishing
operation on another well—even if we were to assume that the well and its
equipment were similar to Federal 1-8—is not evidence that it is customary to use
11
a nitrogen blanket on wells or that the failure to do so constitutes a lack of ordinary
care. Testimony that a defendant engaged in the suggested conduct on one other
occasion may be admissible to show the standard of care but is insufficient to
establish that standard of care. See Webster v. Johnson, 737 S.W.2d 884, 887 (Tex.
App.—Houston [1st Dist.] 1987, writ denied) (holding that plaintiff did not meet
burden of proof merely by showing that procedure “was not compatible with that
utilized by other doctors in Harris County”); see also Whittley v. Heston, 954
S.W.2d 119, 123 (Tex. App.—San Antonio 1997, no pet.) (observing that “[a]
testifying expert cannot establish the standard of care by simply stating the course
of action he would have taken under the same or similar circumstances.”); Warner
v. Hurt, 834 S.W.2d 404, 407 (Tex. App.—Houston [14th Dist.] 1992, no writ)
(observing same). Evidence that Fairways followed a particular procedure on a
different, but similar, well does not establish that it is customary, ordinary, or
standard to do so in the industry. Cf. King v. Bauer, 688 S.W.2d 845, 846 (Tex.
1985) (evidence was legally sufficient based on evidence of “usual or standard”
method of treating a patient); Brown v. Lundell, 344 S.W.2d 863, 867−68 (Tex.
1961) (evidence of custom is evidence of negligence).
3. Gracia’s Testimony
Patterson next cites concessions made by Homero Gracia, Fairways’s vice
president of drilling and a natural gas engineer who had responsibility for
12
Fairways’s completion and workover operations. Gracia was an expert witness on
engineering principles with “knowledge” about the pipe used in Federal 1-8. He
conceded there was a “possibility” and that it was “foreseeable” that the pipe might
separate at the time of the incident in question. He explained that the possibility of
separation existed because the crew was “pulling on” the pipe to dislodge it, not
because of the H2S.9 He stated that the reason blow-out preventers exist on a well
is that sometimes the unexpected, but nevertheless foreseeable, will occur on a
well. He also admitted that Fairways deliberately chose to flow the well and thus
put it into direct contact with the H2S. But, according to Gracia, the risk that the
pipe would separate as a result of the nitrogen blanket’s removal was virtually non-
existent because the use of T-95 piping was “the correct material for the H2S.”
Therefore, he “didn’t even consider what affect the H2S might have on the pipe to
make it more likely to part.”
Gracia did not testify that Fairways was negligent. He was only asked one
question that encapsulated words ordinarily used in a discussion of negligence—
e.g., “reasonable,” “ordinary,” or “standard of care”10—and he categorically
9
Mario Garcia, Cudd’s supervisor over the snubbing crew at the well, also testified
that “any time you’re pulling on pipe with the snubbing unit there’s a possibility
that [the] pipe [might] part.”
10
The jury charge defined “negligence” as the “failure to use ordinary care; that is to
say failure to do that which a person of ordinary prudence would have done under
the same or similar circumstances[.]” The charge defined “ordinary care” as “that
degree of care which would be used by a person of ordinary prudence[.]”
13
rejected the assertion that Fairways did not act in a reasonably prudent manner
because it did not defer to Patterson or other experts on whether the nitrogen
blanket could be safely removed. In short, Gracia’s testimony did not establish a
standard of care for an operator.
4. NACE MR0175
Patterson also relies on Fairways’s failure to perform a well-condition
analysis which Patterson contends was required by standards adopted by NACE.
The Court addresses Dr. Kane’s testimony about these standards but a little more
detail about the standards themselves may be helpful.
NACE standard MR0175 provides “requirements and recommendations for
the selection and qualification of metallic material for service in equipment used in
oil and gas production . . . in H2S-containing environments.” MR0175 “addresses
all mechanisms of cracking that can be caused by H2S, including sulfide stress
cracking [and] stress corrosion cracking.” Materials that meet its criteria “are
resistant to cracking in defined H2S-containing environments in oil and gas
production but are not necessarily immune under all service conditions.” It is
undisputed that Fairways was the “user” under the NACE standard. Dr. Kane, the
metallurgist and NACE member retained by Patterson, testified that MR0175 is a
standard that is used in the oil industry. I agree with the Court that neither the
standard itself, nor Kane’s explanation of the standard, established the standard of
14
care for a reasonably prudent sour gas well owner under the circumstances in
question.
MR0175 requires the equipment’s user to:
[D]efine, evaluate and document the service conditions to which materials
may be exposed for each application. The defined conditions shall include
both intended exposures and unintended exposures which may result from
the failure of primary containment and protection methods. Particular
attention shall be paid to the quantification of those factors known to affect
the susceptibility of materials to cracking caused by H2S.
Factors other than material properties, known to affect the susceptibility of
metallic materials to cracking in H2S service include: H2S partial pressure, in
situ pH, the concentration of dissolved chloride or other halide, the presence
of elemental sulfur or other oxidant, temperature, galvanic effects,
mechanical stress, and time of exposure to contact with a liquid water phase.
Two annexes, C and D, to the standard are entitled “informative” and set forth
respectively the calculation for determining a well’s H2S partial pressure and pH.
These calculations “shall be used . . . to provide the basis for the reassessment of
the suitability of existing alloys of construction . . . in the event of changes to the
actual or intended service conditions.”
Patterson contends that the decision to flow the well overnight “represented
a change in ‘actual service conditions’ of the pipe under MR0175,” and therefore
Fairways was required to make the calculations set forth in those standards. It was
15
undisputed that Fairways did not make such calculations.11 Even if expert
testimony was not necessary to establish that the stuck setting tool constituted a
change in actual service conditions12 and that it is the operator’s responsibility to
perform the calculations, there was no evidence that a reasonably prudent operator
with knowledge of the results of the calculations would not have evacuated the
nitrogen blanket. Dr. Kane calculated that, based on a chart in MR0175, the partial
pressure in Federal 1-8 was “off the charts.” The chart included a table requiring an
assessment of “[t]he severity of the sour environment” using partial pressure and
pH. Kane opined that had Fairways calculated the partial pressure of H2S in the
Federal 1-8 well, it would have determined the H2S concentration in Federal 1-8
was multiple times higher than the amount shown on the chart for assessing the
severity of the environment. He explained that although T-95 pipe passed its
11
Homero Gracia, Fairways’s vice president, acknowledged that, after the packer
setting tool became stuck in the well, Fairways did not calculate the H2S partial
pressure in the well before deciding to remove the nitrogen blanket. Fairways also
did not calculate the NC2 pH, determine the presence of elemental sulfide or other
oxidants in this well, analyze its galvanic affects, or evaluate the well’s
temperatures.
12
There was no testimony on this issue. Gracia did not testify that an operator such
as Fairways should be aware of the need to conduct these calculations or that it is
customary in the industry for an operator to make such calculations. On the
contrary, Gracia disclaimed any responsibility for performing calculations: “It’s
not my job. . . . I’m not the one who knows the capabilities of your system . . . . It
is the responsibility of the companies like Cudd to know their equipment and what
the failure points are. We don’t know what they are, so when you -- you work with
it every day, and you should know what -- where a system will fail or not fail.”
According to Gracia, it was Fairways’s responsibility to ensure that it selected the
proper pipe for the environment, not that it adjusted as the environment changed.
16
testing in a 100% H2S environment and therefore was approved by the NACE
standard, that is not the most severe or stressful environment; the effect of both the
H2S concentration and the partial pressure must be determined to evaluate the
environment’s overall stress. According to Kane, the T-95 pipe needed to be
protected from the severe environment at Federal 1-8 even though it satisfied the
NACE standard. Kane opined that T-95 pipe can fail under severe environmental
conditions at lower than the rated tensile strength.13 The protection is accomplished
by controlling the environment, and one way to do that is to use a nitrogen
blanket.14
13
Much of Dr. Kane’s testimony was disputed by Fairways’s expert, Dr. John Slater,
who is also a metallurgist. Dr. Slater likewise did not address the standard of care;
rather, his testimony, like Kane’s, focused on why the pipe failed. According to
Slater, T-95 pipe is a well-recognized material that should—because of its
chemistry and metallurgy—resist failure in hydrogen sulfide environments,
including a well in which the H2S level was “off the charts.” According to Slater,
T-95 pipe is resistance to sulfide stress cracking at all temperatures and had been
tested in “a very, very nasty hydrogen sulfide environment” that is “about as nasty
as you can get.” Slater opined that the pipe’s failure was due not to the removal of
the nitrogen blanket, but to the pre-existing tong marks on the pipe that caused
indentations to the tubular steel, resulting in changes to its characteristics and
making it susceptible to sulfide stress cracking. “[W]hat we have here is a resistant
material being made vulnerable to the sulfide stress cracking environment as a
result of the way it had been mishandled and the tong marks that had been placed
on there.”
Slater explained that the well’s environment would have caused sulfide stress
cracking on non-resistant materials, and he contended that the presence of the
indentations on the piping “basically turn[ed] that originally non-vulnerable
material into a vulnerable material … as a result of the indentations.”
14
Contrary to Patterson’s assertions, Dr. Kane did not testify that “prudent operators
of sour gas wells typically control the down environment by using ‘inhibitors’
17
But Dr. Kane did not testify that Fairways should have known this
information or that a reasonably prudent operator would have known it. According
to Kane, MR0175 does not quantify an “amount of H2S that T-95 can be exposed
to.” Moreover, T-95 is proper for “any application for H2S.” While nitrogen does
provide additional protection for pipe, Kane admitted that MR0175 does not state
that an operator should use a nitrogen blanket to protect T-95. Kane also
acknowledged that MR0175 provides no limits on the amount of the H2S
concentration to which the pipe may be exposed based on amount of the partial
pressure or the pH. MR0175 also does not limit the use of the pipe to any
temperature range. He also conceded that standard does not discuss the use of
nitrogen blanket to protect the pipe. Kane expressly conceded that he was not
opining about Fairways’s conduct and he did not testify what Fairways’s conduct
should have been if it had performed the calculations required by MR0175.
Moreover, MR0175 does not state the significance of the calculations or
warn that certain actions should or should not be taken based on the results of the
calculations; MR0175 merely compares the severity of different conditions.
MR0175 therefore establishes, at most, that Fairways violated the standard of care
by failing to perform the required calculations, but it does not establish that, if
such as nitrogen to prevent equipment damage.” Kane never used the words
prudent, reasonable, ordinary, or typical in describing the acts or omissions of
either Fairways or operators generally.
18
Fairways had performed the calculations, Fairways would have, or should have,
acted in a different manner.
Conclusion
I agree with the Court that expert testimony on the standard of care for a
reasonably prudent sour well owner is generally necessary when a plaintiff claims
the completion operations were performed negligently. While evidence on the
standard of care might be provided by sources other than expert testimony, none of
the other evidence in this case demonstrated the standard of care. Patterson offered
other evidence that Fairways made a wrong decision in removing the nitrogen
blanket but none of its evidence demonstrated that a reasonably prudent owner
would have known in advance that its decision was unreasonable. I therefore
concur in the Court’s opinion and judgment.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, concurring.
19