Colorado Ruling Raises Stakes in Fracking Litigation and Beyond

by Dechert LLP
Contact

In an Independence Day gift to plaintiffs, the Colorado Court of Appeals ruled in Strudley v. Antero Resources Corp., No. 12CA1251 (July 3, 2013), that Colorado law does not allow pre-discovery Lone Pine orders, often used by trial courts to manage complex toxic tort cases. The decision comes in the new area of hydraulic fracturing or “fracking” litigation and involves a matter of first impression for the Colorado courts. It is for now, and pending further review by the Colorado Supreme Court, a significant win for fracking litigation plaintiffs — both within the state and nationally. It also will be cited in other product liability and toxic tort cases where plaintiffs bring claims involving complex issues of medical causation and defendants seek Lone Pine relief.

William and Beth Strudley sued various entities involved in the hydraulic fracturing of natural gas, claiming that nearby fracking operations had caused contamination to the air, water and ground around their home, resulting in property damage and “personal and physical injuries, known and unknown.” The complaint contained a list of chemicals and contaminants alleged to be potentially responsible for causing them harm. But it did not provide any detail regarding which chemical, through which route of exposure, was responsible for which alleged injury.

Defendants asked for and obtained a Lone Pine order, so named for the type of case management order first issued in Lore v. Lone Pine Corp., 1986 WL 637507 (NJ. Super. Ct. Law Div. Nov 18, 1986). Lone Pine orders rely upon a court’s inherent case management authority and have been employed to avoid unnecessary and expensive discovery where plaintiffs cannot establish a prima facie case.

In granting the Lone Pine motion, the trial court particularly noted that: (1) plaintiffs asserted only vague harms without any formal diagnosis; (2) they did not allege that any particular harm was cause by any specific chemical(s) or means of exposure; and (3) the Colorado Oil and Gas Conservation Commission had previously investigated the complaint and concluded that there was nothing to indicate any oil & gas related harms.

Thus, the trial judge required the plaintiffs to produce expert reports or affidavits with supporting data establishing: (1) the substance(s) to which the Strudleys were exposed; (2) whether and what illness the substance(s) are claimed to cause; (3) the dose and duration of exposure; (4) the location of the exposure; (5) evidence of a medically recognized illness; and (6) a conclusion the illness was caused by the exposure.

The Strudleys responded with a Ph.D. chemist, who opined that well water testing on the Strudleys’ property “could be consistent with contamination from gas well chemicals…although that conclusion cannot be reached unequivocally from the chemical data alone.” They also offered a medical doctor, who never examined them but spoke to them by telephone and looked at pictures. The medical doctor offered only that there was enough evidence of a possible link presented to warrant further discovery. No expert actually offered a causation opinion and the Strudleys never clarified the precise injuries alleged.

Thereafter, the defendants moved to dismiss and the trial court agree. It held that the Strudleys had failed to make out a prima facie case.

The Colorado Court of Appeals reversed, not merely limiting itself to the particulars of the case before it, but rather holding broadly that pre-discovery Lone Pine orders are not allowed in Colorado as a matter of law. It based its decision on:

  • Colorado cases not involving toxic injuries or issues of medical causation, which disapprove of plaintiffs being put to a pre-discovery duty to establish a prima facie case.
  • Colorado’s Rule 16, which it read as not giving state trial judges the same broad management discretion as granted by Federal Rule 16.
  • Cases outside of Colorado, noting that Lone Pine orders are most frequently granted in litigation involving large groups of plaintiffs or defendants and/or when some discovery has already been completed.

There is ample room for defendants to criticize the Court of Appeals reasoning by analogy to cases not involving toxic injury, as well as its narrow and somewhat arbitrary construction of Colorado’s Rule 16. For example, the Colorado Court did not address at all whether a less burdensome version of a Lone Pine order might be permissible in Colorado.

Still, for the Strudley defendants and beyond, the narrower basis for the decision may prove the hardest to dislodge. Several other courts — including in fracking litigation since Strudley — have declined to enter Lone Pine orders for specific fact-based reasons. See, e.g., Roth v. Cabot Oil & Gas Corp., 287 F.R.D. 293, 297 (M.D.Pa. 2012); Kaumuck v. Shell Energy Holdings GP, LLC, 2012 WL 3864954 (M.D. Pa. Sept. 5, 2012) (unpublished opinion and order).

We will continue to watch as this litigation proceeds and as defendants in fracking and other toxic injury claims file seek to employ Lone Pine.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dechert LLP | Attorney Advertising

Written by:

Dechert LLP
Contact
more
less

Dechert LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!