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.

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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

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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

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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.

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