In an April 20, 2015, decision that was highly anticipated by the energy industry, the Colorado Supreme Court rejected a procedural device called a “Lone Pine” order that requires plaintiffs to make a threshold evidentiary showing early in the case. The name Lone Pine order comes from the 1986 New Jersey state court case that is credited with pioneering the procedural device. In that case, the New Jersey court issued an order giving toxic tort plaintiffs four months to submit evidence of their exposure to toxic substances and evidence that the exposure was causally related to their alleged injuries. After several extensions of time, the plaintiffs were ultimately unable to produce the evidence, and the court dismissed the case.

Today, Lone Pine orders refer generally to case management orders issued by courts early in the litigation (typically before any discovery has been conducted) requiring plaintiffs to present some minimal evidence supporting their claims. Lone Pine orders have been used almost exclusively in large, complex toxic tort cases to require evidence of exposure to toxic substances, injury, and causation. The orders are aimed at quickly dispensing with baseless lawsuits by requiring plaintiffs to show some level of support for their claims prior to engaging in costly and time-consuming discovery and litigation. One of the more powerful rationales for courts using Lone Pine orders is that they simply require plaintiffs to produce evidence that they should already have before filing a lawsuit. In other words, Lone Pine orders have the potential to prevent fishing expeditions by plaintiffs who file suit first and worry about supporting their claims later.

The Colorado Supreme Court’s rejection of this device in Antero Resources Corp. et al. v. Strudley, 2015 CO 26, while disappointing to the energy industry in Colorado, is not a death knell for toxic tort defendants in Colorado. Lone Pine orders have received much attention lately, but they have not historically been in common use in Colorado. More important, the decision is limited to state court cases in Colorado and has no precedential effect on other state courts or federal courts. Indeed, in reaching its decision, the Colorado Supreme Court expressly distinguished the state procedural rules from the federal rules, finding that the federal rules authorize Lone Pine orders, while the state rules do not. This reality will increase incentives for Colorado toxic tort defendants to remove lawsuits to federal court, where a Lone Pine order may be more likely.

The Colorado Supreme Court’s decision also leaves room for hope that Lone Pine orders could be available to Colorado state court defendants in the future, notwithstanding the decision. Because the case turned on interpretation of Colorado’s current procedural rules, it is possible that the procedural rules could be amended to authorize Lone Pine orders. Perhaps foreshadowing such a development, the Colorado Supreme Court’s opinion concludes by finding that the rules do “not currently authorize Lone Pine Orders” and explaining that the procedure for amending the rules is for the Civil Rules Committee to examine the issue and make a recommendation to the Court.

The decision is available here: https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC576.pdf.