On July 3 2013 the Colorado Court of Appeals overturned(1) a Lone Pine order and a dismissal order issued by the lower court in Strudley v Antero Resources Corporation, remanding the case back to the trial court for further proceedings.(2)

The Strudley family filed its lawsuit in March 2011, complaining that the defendants' natural gas well activities, including hydraulic fracturing, had contaminated its water supply.

The Lone Pine order issued by the court required the plaintiffs to make a prima facie showing of exposure, injury and specific causation by providing expert affidavits from doctors, contamination reports and other information relating to the identification and quantification of hazardous substances to which each family member was exposed from the defendants' operations, as well as how long and at what concentration levels. The plaintiffs submitted the affidavit of a doctor who, although he had never examined the family members, concluded that "sufficient environmental exposure and health information exists to merit further substantive discovery".

The lower court found this affidavit to be insufficient and ordered the case to be dismissed, leading to the appellate review of the two orders.

The Colorado Court of Appeals reversed. The court cited two primary reasons for doing so:

  • The court interpreted two Colorado Supreme Court cases as standing for the proposition "that a trial court may not require a showing of a prima [facie] case before allowing discovery on matters central to a plaintiff's claims".
  • The court cited differences between Colorado Rule of Procedure 16 and Federal Rule of Civil Procedure 16.(3) (Federal courts often cite to Federal Rule of Civil Procedure 16 as the basis of their authority to issue Lone Pine orders.)

The court further held that, even assuming that it was writing on a blank slate, unlike the majority of cases allowing Lone Pine orders this was not a mass tort case, nor was it "any more complex or cost intensive than an average toxic tort case". The court saw this lawsuit as simply a case involving four family members suing four defendants over alleged pollution of one parcel of land, making the Lone Pine order unnecessary. The court did note that at least one other court had issued a Lone Pine order in a case involving only a few parties.(4)

It is unknown whether the defendants will seek further review from the Colorado Supreme Court. However, even if the decision stands, other jurisdictions may not find it persuasive because of differences between their own precedents and procedural rules. The court might well have reached a different result if the case had involved multiple parties and was more complex. Indeed, the court left open the door that in "extraordinary circumstances", a Lone Pine order may be appropriate by stating that the prior Colorado Supreme Court decisions "prohibited the trial court from entering the Lone Pine order here" (emphasis added).(5)

For further information on this topic please contact Barclay R Nicholson or Carter Walker Dugan at Fulbright & Jaworski LLP by telephone (+1 212 318 3000), fax (+1 212 318 3400) or email (barclay.nicholson@nortonrosefulbright.com or carter.dugan@nortonrosefulbright.com).


(1) Case No 12 CA 1251, available at www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf.

(2) Case No 2011-cv-2218, Denver County District Court.

(3) Federal Rule of Civil Procedure 16(c)(2) allows a federal court to "consider and take appropriate action" to formulate and simplify the issues and eliminate frivolous claims or defences. The Colorado Court of Appeals pointed out that, while the Colorado rule does not contain this language, rules relating to motions to dismiss and motions for summary judgment "provide adequate procedures for challenging claims lacking in merit".

(4) See Pinares v United Techs Corp, No 10-80883, 2011 WL 240512, at *1-2 (SD Fla January 19 2011) (case brought by two plaintiffs alleging health injuries from toxic wastes allegedly from defendant's manufacturing process); see also Schelske v Creative Nail Design, Inc, 933 P2d 799, 803 (Mont 1997) (case brought by two plaintiffs alleging health injuries from toxic substances from cosmetic manufacturing).

(5) See also id: "The circumstances surrounding the case were not shown to be so extraordinary as to require departure from existing rules of civil procedure."

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