December 4, 2021

Volume XI, Number 338

Advertisement
Advertisement

December 03, 2021

Subscribe to Latest Legal News and Analysis

December 02, 2021

Subscribe to Latest Legal News and Analysis

December 01, 2021

Subscribe to Latest Legal News and Analysis

Colorado Appeals Court Rejects Lone Pine Order in Fracking Case

In a decision that may make it easier for certain plaintiffs to maintain a toxic tort case in Colorado, a Colorado appellate court ruled that a trial court could not order a small number of plaintiffs in a toxic tort case to present prima facie evidence before discovery begins in support of their claims of exposure due to hydraulic fracturing (or “fracking”) operations. See Strudley v. Antero Res. Corp., No. 12CA1251 (Colo. App. July 3, 2013), available atwww.bdlaw.com/assets/attachments/Strudley.pdf

Plaintiff property owners sued Defendant gas companies in tort claiming injuries allegedly caused by the Defendants’ natural gas drilling operations within close proximity to their home. Strudley, slip op. at 1-2. Shortly after initial disclosures were filed, Defendants moved for entry of a so-called Lone Pine order, which would require Plaintiffs to “present prima facie evidence to support their claims before full discovery could commence.” Id. at 3-4. The trial court granted Defendants’ request, and issued an order requiring Plaintiffs to submit expert opinions with supporting data and facts that identified the hazardous substances each Plaintiff was exposed to from the companies’ activities, along with a host of other facts. Id. at 4-5. Plaintiffs submitted some evidence, but the trial court found it insufficient and dismissed all of the Plaintiffs’ claims with prejudice, holding they had failed to prove a prima facie case, specifically in relation to causation. Id. at 5-7. (For further discussion of trial court ruling, see Colorado Court Dismisses Fracking-Related Tort Claims for Lack of Causation Evidence, Toxic Tort and Product Liability Quarterly, July 18, 2012, available athttp://www.bdlaw.com/newsletter-21.html.)

In a case of first impression, the Colorado Court of Appeals reversed, noting that, absent extraordinary circumstances, requiring a showing of a prima facie case before allowing discovery on matters central to a plaintiff’s claims is disfavored. Id. at 11-12. Although the initial disclosures provided Plaintiffs in this case with some information related to their claims, the disclosed information was insufficient to allow them to respond to a Lone Pine order. Id. at 19.  The court noted: “[E]ven if we assume that the revisions to the Colorado Rules of Civil Procedure [allow the orders], . . . [u]nlike in the majority of cases allowing Lone Pine orders, this was not a mass tort case. Rather, it involved four family members suing four defendants,” and involved only a single parcel of land. Id. at 24. The court further advised that other procedural protections, such as motions to dismiss and motions for summary judgment, could sufficiently protect against meritless claims, thus obviating the need for a Lone Pine order here. Id. at 26-27. 

© 2021 Beveridge & Diamond PC National Law Review, Volume III, Number 197
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

212-702 5417
Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

212-702-5415
Advertisement
Advertisement
Advertisement