Back in July, I posted on the Colorado Court of Appeals’ decision in Strudley v. Antero Resources Corp. et al. There, Plaintiffs alleged negligence, negligence per se, nuisance, strict liability, and trespass as a result of defendants’ fracking activities near their homes. Defendants requested a Lone Pine order, which would require plaintiffs to present prima facie evidence on causation prior to full discovery. Although the trial court granted Defendants’ request and the case was ultimately dismissed for failure to prove a prima facie case, the Colorado Court of Appeals reversed, finding that the case was not so unduly complex that it necessitated the issuance of a Lone Pine order.
Just last week, the Colorado Supreme Court issued an order agreeing to review the Colorado Court of Appeals’ decision rejecting the use of a Lone Pine order in the fracking suit. Specifically, Defendants argued that the Court of Appeals’ ruling inappropriately overrides trial courts’ efforts to manage streamlined discovery under the Rules of Civil Procedure. Defendants claimed that the Court of Appeals “discounted the importance of Rule 26(a)(1) disclosures in modern discovery,” which can “only fulfill its purpose when all parties make the required information available through their disclosures.” Defendants argued that the Strudley’s failed to comply since they failed to include any evidence showing that they were exposed to or injured by hazardous substances in the air or water that was caused by Defendants’ fracking activities. Defendants therefore argued that by rejecting the trial court’s use of a Lone Pine order, the Court of Appeals “reverted to an outdated mode of litigation where evidence is revealed only after lengthy and expensive discovery.” Defendants claimed that this decision would impact future fracking litigation since it would effectively have a “chilling effect on Colorado trial courts’ efforts to assertively lead the management of cases to ensure that justice is served.”
As argued by Defendants in their petition, a Lone Pine order can be a useful modern tool for companies by weeding out cases and claims by requiring plaintiffs to present prima facie evidence through experts prior to full discovery. This can save companies a tremendous amount of time and money by streamlining discovery, which can typically become burdensome in complex mass tort and toxic tort cases.
With limited decisions issued thus far, every decision on fracking provides guidance and clarity on how courts will handle various fracking related issues and allow the oil and gas industry to better predict and prepare for possible fracking related litigations. Procedural tools and tactics such as a Lone Pine order can be particularly helpful to defendants, especially since one of the main hurdles in fracking suits may be proving the element of causation through experts and scientific research.
We will continue to monitor this litigation and will report back once the Colorado Supreme Court tackles this topic and issues a decision on this controversial issue.