The Tricky Case for Causation in Fracking Litigation

Below is an article appearing in last month’s National Law Journal we co-authored with Yvette W. Lowney of Exponent discussing causation issues in the context of fracking litigation.  Since the article ran, the Colorado Supreme Court issued its decision in Antero Resources Corp. v. William G. Strudley, rejecting the use of Lone Pine orders under existing Colorado procedural rules.  See here for our discussion of that decision.  Although the piece discusses causation in the fracking context, the analysis is equally applicable in any tort context.National Law Journal, April 20, 2015

As Chief Judge Richard Posner famously recognized, “[t]he courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). This oft-cited maxim is particularly applicable in litigation involving hydraulic fracturing, or “fracking,” and in determining whether these operations pose health risks to people living in communities near well sites.

Scientists and researchers are paying close attention to this issue — indeed, no fewer than 16 studies have been published in the peer-reviewed literature, many in the past year alone. Given the high emotion and evident special interests on all sides of this issue, it is especially important that courts follow Posner’s maxim and hold true to long-established principles of causation when analyzing hydraulic-fracturing cases.

Of the published studies that report on potential human health effects, very few provide original empirical data specifically addressing health outcomes. Many discuss the inherent toxicity of chemicals used in the processes (e.g., Kassotis et al. 2013; Adgate et al. 2014; Stringfellow et al. 2014; Webb et al. 2014; Parker et al. 2014; and Kahrilas et al. 2015) with no linkage to assessment of demonstrated or calculated human exposures or associated health risks.

Other studies estimate exposures (based on area air monitoring data of varying quality) and discuss potential concerns or calculate theoretical risks (e.g., Bunch et al. 2014; McKenzie et al. 2012). Those studies that specifically address health effects in potentially affected populations (e.g., Fryzek et al. 2013; McKenzie et al. 2014; Rabinowitz et al. 2014) are limited to qualitative characterization of exposure, such as comparing “before and after” energy development, or assuming that exposure is related to proximity to hydraulic-­fracturing operations.

None of these available studies specifically connect adverse health outcomes with exposure to individual chemicals or mixtures of chemicals. Even those that identify a possible link between proximity to operations and medically documented (McKenzie et al. 2014) or self-reported (Rabinowitz et al. 2014) health effects conclude that their findings indicate a need for further study, and specifically that “additional stud[ies] with stronger exposure metrics are warranted to explore these associations” (McKenzie et al. 2014).

Taken together, the available literature contains no studies that definitively link measurable adverse human health effects with specific exposures from hydraulic-fracturing operations. Several research programs are underway that may add to the scientific data and potentially inform the legal process.

It is against this backdrop of an evolving and unsettled scientific landscape that plaintiffs have filed lawsuits asserting various health-based claims from hydraulic-fracturing operations. Because of the uncertainty in the science regarding exposure levels and any association with adverse health effects and these operations, however, courts have grappled with how to ensure that plaintiffs satisfy their traditional tort law burden of proving proximate cause.


One procedural tool unique to mass tort and toxic tort cases — and that may be particularly appropriate in the fracking context — is a Lone Pine order requiring plaintiffs to produce evidence of causation before permitting a case to proceed. The procedure arises from a New Jersey case in which the court dismissed plaintiffs’ case for failure to produce certain threshold information. Lore v. Lone Pine Corp., 1986 N.J. Super. Lexis 1626, 3-5, 10 (N.J. Super. Law Div. Nov. 18, 1986).

Several federal courts have since adopted this procedure as consistent with the expansive case-management powers that Federal Rule of Civil Procedure 16 bestows. See, e.g., Russell v. Chesapeake Appalachia, 2015 U.S. Dist. Lexis 24655, 11-12 (M.D. Pa. Mar. 2, 2015) (cataloging cases). Notably, the appropriateness of a Lone Pine order in a fracking case is before the Colorado Supreme Court. Antero Resources Corp. v. William G. Strudley, No. 13 SC 576 (Cert. granted, April 7, 2014).

Even if a Lone Pine order is entered, that is not necessarily the end of the case. See Baker v. Anschutz Exploration Corp., 2013 U.S. Dist. Lexis 90394 (W.D.N.Y. June 25, 2013). In Baker, landowners sued two energy companies alleging that chemicals from the companies’ wells contaminated their drinking water. Nearly two years after the complaint was filed, the court issued a Lone Pine order requiring plaintiffs to produce expert opinions identifying the hazardous substances to which they were exposed, the location of the exposure and “an explanation of causation.” Id. at 11. The plaintiffs thereafter produced two expert reports. Id. at 12. Although the reports were “far from models of clarity,” the court found their general statements about causation sufficient to meet the requirements of the Lone Pine order, and the case proceeded with discovery. Id. at 14.

Not all courts, however, have utilized Lone Pine orders. See, e.g., Russell v. Chesapeake Appalachia, 2015 U.S. Dist. Lexis 24655 (M.D. Pa. Mar. 2, 2015); Roth v. Cabot Oil & Gas, 287 F.R.D. 293 (M.D. Pa. 2012); Kamuck v. Shell Energy Holdings G.P. , 2012 U.S. Dist. Lexis 125566 (M.D. Pa. Sept. 5, 2012); Hagy v. Equitable Prod., 2012 U.S. Dist. Lexis 28439 (S.D. W.Va. March 5, 2012).

The common theme from cases in which Lone Pine requests have been denied appears to be a reticence to adopt what the courts view as an “exacting” or “restrictive” procedure at an early stage of litigation, when the more standard procedures and discretion of the court may be sufficient to balance and protect the interests of all parties. See, e.g., Roth, 287 F.R.D. at 299-300; Hagy, 2012 U.S. Dist. Lexis 28439 at 10. Such courts may be more receptive to entering a Lone Pine order after discovery has been well underway and plaintiffs have not produced substantial evidence of causation. Russell, 2015 U.S. Dist. Lexis 24655 at 14-15 (denying motion for Lone Pine order but indicating that such an order may be appropriate at a later date).

Another approach to consider is entry of a focused case-management order, so that discovery focuses first on causation and allows the critical threshold issue to be addressed sooner rather than later.

Even absent a Lone Pine or targeted case management order, plaintiffs and their experts must rely on more than ipse dixit assertions to establish causation and must account for conflicting studies, as well as limitations in studies. Also, their opinions should be struck as unreliable under either Daubert or Frye if they fail to consider the relevant universe of data in forming their opinions. See, e.g., Baker v. Anschutz Exploration Corp., 2014 U.S. Dist. Lexis 174442, 19-33 (W.D.N.Y. Dec. 17, 2014) (excluding expert’s causation opinion under Daubert when expert had not considered and evaluated conflicting data, and the opinion consisted of a bare assertion without support).

Likewise, a case should not survive summary judgment if the plaintiff is unable to demonstrate more than a mere possibility that the defendant’s activities caused the injuries alleged. See Magers v. Chesapeake Appalachia, 2014 U.S. Dist. Lexis 121838, 20-21, 23-24 (N.D. W.Va. Sept. 2, 2014 (granting summary judgment because plaintiff’s expert’s opinion was insufficient to show “more than a mere possibility of causation”); Hagy, 2012 U.S. Dist. Lexis 91773 at 14 (“At this late point in the proceedings, the plaintiffs have failed to advance a clear theory — let alone provide concrete evidence — connecting this specific defendant to the harm they claim to have suffered”).

Proximate cause will remain a key factor in any fracking case, whether the issues involve alleged health effects, seismic activity or groundwater contamination. It is imperative that courts fulfill their gatekeeping function and avoid a rush to judgment merely because of heightened media scrutiny, emotion or politics.

In addition, courts should not permit any particular study to serve a “one size fits all” purpose; each study is different, addresses unique issues and has its own set of strengths and limitations. Thus, the plaintiff must be required to show specific causation in her particular case, and to rely on appropriate science that “fits” the facts of the case before the court.

 Theodore E. Tsekerides is a partner in the New York office of Weil, Gotshal & Manges and concentrates on complex commercial litigation and products liability/mass torts. Yvette W. Lowney is a senior managing ­scientist in the health-sciences practice of Exponent Inc., an engineering and scientific consulting firm. The authors can be reached, respectively, at and Weil associates Jed P. Winer and Caroline Toole, and Exponent senior scientist Josie Nusz, also contributed to this article.

Reprinted with permission from the April 20, 2015 issue of the National Law Journal.  2015 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.