Lone Pine order overturned by intermediate Appellate Court in Colorado fracking lawsuit

On July 3, 2013, the Colorado Court of Appeals (Case No. 2013 COA 106) overturned a Lone Pine order and a dismissal order issued by the lower court in the case of Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services, and Frontier Drilling LLC (Case No. 2011-cv-2218, Denver County District Court), remanding the case back to the trial court for further proceedings.

The Strudley family filed their lawsuit in March 2011, complaining that defendants’ natural gas well activities, including hydraulic fracturing, had contaminated their water supply. The Lone Pine order issued by the court required the plaintiffs to make a prima facie showing of exposure, injury, and specific causation by providing expert affidavits from doctors, contamination reports and other information relating to the identification and quantification of hazardous substances to which each family member was exposed from defendants’ operations, as well as how long and at what concentration levels. The plaintiffs submitted the affidavit of a doctor who, although never examining the family members, concluded that “sufficient environmental exposure and health information exists to merit further substantive discovery.” The lower court found this affidavit to be insufficient and ordered the case dismissed, leading to the appellate review of the two orders.

The Colorado Court of Appeals reversed. The court cited two primary reason for doing so. The first was anchored in two Colorado Supreme Court cases that the court interpreted as standing for the proposition “that a trial court may not require a showing of a prima [facie] case before allowing discovery on matters central to a plaintiff’s claims”. Second, the court cited differences between Colorado Rule of Procedure 16 and Federal Rule of Civil Procedure 16. (Federal courts often cite to Fed. R. Civ. P. 16 as the basis of their authority to issue Lone Pine orders.) The court further held that, even assuming it was writing on a blank slate, unlike the majority of cases allowing Lone Pine orders, this was not a mass tort case nor was it “any more complex or cost intensive than an average toxic tort case.” The court saw this lawsuit as simply a case involving four family members suing four defendants over alleged pollution of one parcel of land, making the Lone Pine order unnecessary. The court did note that at least one other court issued a Lone Pine order in a case involving only a few parties. See Pinares v. United Techs. Corp., No. 10-80883, 2011 WL 240512, at *1-2 (S.D. Fla. Jan. 19, 2011).

It is unknown whether the defendants will seek further review from the Colorado Supreme Court. However, even if the decision stands, other jurisdictions may not find it persuasive because of differences between their own precedent and procedural rules. The court might well have reached a different result if the case involved multiple parties and was more complex. Indeed, the court left open the door that in “extraordinary circumstances,” a Lone Pine order may be appropriate by stating that the prior Colorado Supreme Court decisions “prohibited the trial court from entering the Lone Pine order here.” (emphasis added); see also id. (“The circumstances surrounding the case were not shown to be so extraordinary as to require departure from existing rules of civil procedure.”).