Will the Toxic Tort Case Management Tool Known as a “Lone Pine Order” Remain Prohibited in Colorado?

by Kristi E. Dorr

One of the first Colorado cases involving alleged personal injuries and property damage due to hydraulic fracturing, Strudley v. Antero Resources Corp., has made its way to the Colorado Supreme Court by writ of certiorari. At issue is “whether a trial court in a toxic tort case can enter an order requiring plaintiffs to present [prima facie] evidence supporting their claims after initial disclosures, but before other discovery commences, or risk having their case dismissed.” The Colorado Court of Appeals ruled that this case management tool known as a “Lone Pine” order, deriving its name from a 1980’s toxic tort case in New Jersey, is prohibited under Colorado law. Antero Resources has appealed to the Colorado Supreme Court and a grant or denial of certiorari is pending.

The Strudleys sued Antero Resources Corporation and three other energy companies in the Denver District Court claiming hydraulic fracturing caused air, water, and ground contamination causing personal and property damage. Prior to full discovery, Antero Resources requested a Lone Pine order, a seldom-used defense tool requiring plaintiffs to provide prima facie evidence to support their claim for damages. Antero Resources supported their request with a Colorado Oil and Gas Commission water sampling report which found no indications of adverse impacts from oil and gas operations to the Strudley’s water well.

Seeing this lack of evidence, the trial court issued a Lone Pine order requiring the Strudleys to submit expert opinion identifying the hazardous substances which the Strudleys were allegedly exposed to and explaining the resulting harm.

While the Strudleys did comply with the order by submitting various expert opinions, the District Court found the Strudleys had failed to prove causation and dismissed their claims with prejudice. The Colorado Court of Appeals reversed.

The Appeals Court lead their analysis by citing a variety of Colorado cases that collectively support liberal discovery methods favoring the party conducting discovery and disfavoring having to prove a prima facie case prior to discovery. The Appeals Court continued its analysis by looking to Lone Pine case law from other jurisdictions, finding that such orders are generally only used in cases that have a significant number of parties or highly complex issues such as toxic torts. The court cited cases that found it was preferable to utilize existing procedural mechanisms rather than exacting Lone Pine requests in order to safeguard the discovery process.

In analyzing the Colorado Rules of Civil Procedure (C.R.C.P), the Appeals Court held that the trial court abused its discretion in exercising control over the discovery process. The court recognized that the new rules allow a “differential case management” system and “limited discovery”, but that “[a] proposed modified case management order should be supported by good cause.” The court also found that the Committee did not intend to allow for pretrial procedural discretion by the courts and thus issuance of a Lone Pine Order was an abuse of discretion. See C.R.C.P. 16(c)(1), (2) and the Committee Comment. If the court grants certiorari, stay tuned!

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Kristi E. Dorr is a Colorado licensed attorney with a private practice focused on natural resources law, as well as advising nonprofit and for-profit business entities. Ms. Dorr serves on the Professional Advancement Committee for the Colorado Women’s Bar Association and is an active member of the Colorado Bar Association. Ms. Dorr can be reached by email and invites you to reach out to her on LinkedIn.

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