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.