Hydraulic fracturing (“fracking”) has been subject to a considerable amount of media coverage over the past few months, and we have been monitoring the regulatory and litigation landscape closely here at Weil.  Most of the fracking-related litigation to date has alleged water and environmental contamination/pollution under a variety of legal theories.  A Colorado state judge has recently signaled that plaintiffs in these types of suits may face significant problems in proving the requisite element to the vast majority of the common law claims asserted.

In Strudley v. Antero Resources Corp. et al., No. 2011-CV-2218 (2d Jud. Dist. Ct. May 9, 2012), the plaintiffs’ toxic tort action was premised on allegations that the defendants’ drilling of three natural gas wells in Silt, Colorado contaminated the air and the plaintiffs’ water supply, forcing the plaintiffs “to flee and abandon their home.”  The injuries complained of included “nasal sinus congestion,” “nosebleed[s],” and “an aversion to odors.”  The complaint named Antero Resources Co. (an oil and gas exploration and production company), Calfrac Well Services, Ltd. (a fracking, tubing, cementing, and well services provider) and Frontier Drilling LLC (a drilling operations and drilling equipment services provider) as defendants, and asserted claims for negligence, negligence per se, nuisance, strict liability, trespass, and the creation of a medical monitoring trust.  The plaintiffs sought compensatory damages, punitive damages, diminution of value of the Strudley property, the cost of medical monitoring, and litigation fees and costs.

Last year, the defendants requested a Lone Pine order during case management proceedings, which would require the plaintiffs to detail their injuries and damages and show minimal evidence of causation prior to discovery.  The court granted this request, noting that it was “[c]ognizant of the significant discovery and cost burdens presented by a case of this nature.”  Judge Ann B. Frick’s Lone Pine order, dated November 10, 2011, instructed the plaintiffs to provide the Court and the defendants with (1) detailed expert opinions that would relay both general and specific causation, (2) studies that found contamination on the plaintiffs’ property, (3) each plaintiff’s medical records, and (4) the identification and quantification of contamination of the plaintiffs’ real property attributable to defendants’ operations.   Judge Frick determined that this prima facie showing requirement did not prejudice the plaintiffs because “ultimately they would need to come forward with this data and expert opinions in order to establish their claims.”

On February 23, 2012, the plaintiffs submitted a variety of maps, photos, medical records, and air and water sample analysis reports, as well as a doctor’s affidavit, which opined that “sufficient environmental and health information exists to merit further substantive discovery.”  (emphasis added by the court).  The defendants submitted the results of a Colorado Oil and Gas Conversation Commission investigation, which concluded that the plaintiffs’ well water was not affected by oil and gas operations in the vicinity.  The defendants also submitted wind pattern and air emission-control equipment evidence supporting their contentions that the plaintiffs could not have been exposed to harmful levels of chemicals, as well as sworn testimony that their activities were conducted in compliance with applicable laws and regulations.

The court found that the plaintiff’s “sole” expert, Dr. Kurt, “makes no opinion as to whether exposure was a contributing factor to plaintiffs’ alleged injuries or illness,” and that while the air and gas tests do show “detectable levels” of certain gases and chemicals, none of this data or expert analysis states “with any level of probability that a causal connection does in fact exist between plaintiffs’ injuries and plaintiffs’ exposure to defendants[’] drilling activities.”  The court noted that “perhaps most significantly,” Dr. Kurt failed to “draw a conclusion that [p]laintiffs’ alleged injuries or illnesses were in fact caused by such exposure (specific causation).”  Accordingly, the court found that due to the “missing links in the chain of causation,” the plaintiffs failed to make a prima facie claim for injuries, the defendants’ motion to dismiss should be granted, and the plaintiffs’ claims should be dismissed with prejudice.   

Antero’s spokesman indicated that the company was “pleased” with the decision, since plaintiffs “have to come with damages, not just allegations.”  The Western Slope Colorado Oil and Gas Association “applauded” the decision, lauding it as a “symbolic victory.”

Judge Frick’s dismissal of Strudley highlights a fracking plaintiff’s most difficult obstacle—causation.  Without evidence supporting this causal connection, plaintiffs will face significant difficulties in asserting claims commonly asserted in environmental toxic tort actions.  Strudley also highlights the use of Lone Pine orders, frequently used in earlier years to manage complex mass tort cases.

We will continue to keep you posted on any notable developments regarding this topic here at the Product Liability Monitor.