Strudley v. Antero Resources Corp., No. 12CA1251 (Colo. Ct. App. July 3, 2013). In this action alleging that natural gas drilling activities in the vicinity of plaintiffs’ home caused property damage and personal injuries, the Colorado Court of Appeals reversed the trial court’s “Lone Pine” order requiring plaintiffs to present prima facie evidence supporting their claims prior to commencement of discovery and a subsequent order dismissing plaintiffs’ claims for failure to prove a prima facie case. The Court of Appeals held that Lone Pine orders are not permitted as a matter of Colorado law. The court cited two Colorado Supreme Court decisions disfavoring requirements that plaintiffs provide prima facie evidence of their claims prior to discovery and found that recent amendments to the Colorado Rules of Civil Procedure (CRCP) were not “so substantial as to effectively overrule” these decisions. The court further held that even if the CRCP amendments did overrule the Supreme Court decisions, a Lone Pine order would not be called for in this particular case, which was neither a mass tort case nor as complex as cases in which Lone Pine orders were issued in other jurisdictions.
Baker v. Anschutz Exploration Corp., No. 11-CV-6119 (W.D.N.Y. June 27, 2013). In this lawsuit by 15 landowners against companies that engaged in drilling activities on properties in close proximity to plaintiffs’ properties, the court denied defendants’ motion to strike plaintiffs’ expert reports for failure to comply with the court’s Lone Pine order, which had required plaintiffs to present certain prima facie evidence to support their claims. Though conceding that the expert reports were “far from models of clarity,” the court rejected defendants’ contention that the reports failed to comply with the court’s order to identify specific hazardous substances to which plaintiffs claimed exposure and to provide an explanation of causation. In the same decision and order, the court denied plaintiffs’ motion to remand the proceeding to state court since plaintiffs no longer had a basis for arguing that a lack of diversity compelled remand in light of the stipulation and order dismissing Conrad Geoscience Corporation from the case.
Scoggin v. Cudd Pumping Services, Inc., No. 11-CV-00678 (E.D. Ark. June 10, 2013). This action was commenced by a grandmother on behalf of her minor grandchildren who resided with her and who were allegedly exposed to “noxious and poisonous carcinogenic matter and compounds” as a result of their home’s proximity to hydraulic fracturing operations. Plaintiffs alleged strict liability, nuisance, trespass, and negligence claims and sought compensatory and punitive damages as well as establishment of a medical monitoring fund. On June 10, 2013, plaintiffs and defendants filed a stipulation to dismiss the action without prejudice.
In re Lipsky, No. 02-12-00348-CV (Tex. Ct. App. Fort Worth Apr. 22, 2013). In a lawsuit filed in 2011 (Lipsky v. Durant, Carter, Coleman LLC, No. 11CV-0798 (Tex. Dist. Ct. Parker Co.)), a husband and wife alleged that hydraulic fracturing near their property in Texas contaminated their water supply well. In July 2011, defendants Range Production Co. and Range Resources Corp. (Range) filed a counterclaim, alleging that plaintiffs and an environmental consultant conspired to harm Range’s reputation. Among other things, the company alleged that plaintiffs and the consultant conspired to persuade EPA to get involved in the matter by using false and misleading data. In January 2012, the trial court dismissed plaintiffs’ claims on jurisdictional grounds, holding that plaintiffs were required to appeal a March 2011 decision of the Railroad Commission of Texas that approved a report finding that Range had not caused the contamination in plaintiffs’ well. In June 2012, the trial court denied plaintiffs’ motion to dismiss Range’s counterclaims as barred by the Texas Citizens’ Participation Act, an anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. In August 2012, an appellate court dismissed plaintiffs’ appeal for lack of jurisdiction, citing an earlier ruling that it did not have jurisdiction over interlocutory appeals from trial court orders denying motions to dismiss under the anti-SLAPP statute. The appellate court granted plaintiffs’ request that the appeal be converted to an original proceeding seeking a writ of mandamus. In the original proceeding for a writ of mandamus concerning whether the trial court abused its discretion in denying motions to dismiss Range’s counterclaims against the landowner plaintiffs and an environmental consultant (relators), the appellate court determined that relators had met their initial burden of establishing that Range’s counterclaims were based on relators’ exercise of their right to free speech and right to petition. The court of appeals further ruled that the trial court did not clearly abuse its discretion in determining that Range had presented clear and specific evidence to establish a prima facie case for its defamation and business disparagement claims against relator Steven Lipsky, but that it had abused its discretion in determining that prima facie cases for such claims had been made against the other relators. The court also ruled that the trial court abused its discretion in denying the motions to dismiss the civil conspiracy and “aiding and abetting” counterclaims against all relators. Finding that relators had no adequate remedy on appeal, the court conditionally granted writs of mandamus and ordered the trial court to dismiss the civil conspiracy and aiding and abetting claims against Steven Lipsky and all claims against the other relators.
Bombardiere v. Schlumberger Tech. Corp., No. 1:11-CV-50 (N.D. W. Va. Apr. 16, 2013). In this action, plaintiff alleged that he had been injured by exposure to hydraulic fracturing chemicals in the course of his work at gas wells. He asserted the following counts: negligence/willful, wanton and reckless misconduct; deliberate intent pursuant to West Virginia Code § 23-4-2(c) (Workers’ Compensation Act); alter ego; agency; strict liability/ultrahazardous activity; preparation and use of proprietary chemical fracking fluids; wrongful interference with employment/wrongful interference with protected property interests; and punitive damages. In a series of decisions on defendants’ motions for summary judgment issued on January 30, January 31, February 1, and February 21, 2013, the court dismissed all defendants but Schlumberger Technology Corp. (Schlumberger) from the action and dismissed all but the deliberate intent count against Schlumberger. In March 2013, a federal jury rendered a verdict in favor of Schlumberger on the remaining claim, and judgment was entered in April 2013.
Magers v. Chesapeake Appalachia LLC, No. 5:12-cv-49 (N.D. W.Va. Apr. 10, 2013). Plaintiffs alleged that defendants’ gas drilling and storage activities on property adjacent to plaintiffs’ land caused methane pollution in their water. The court denied a motion to dismiss for failure to state a claim, but granted an alternative motion to require a more definite statement—and instructed plaintiffs to include more “succinct allegations” against the individual defendants outlining their individual contributions to the alleged injury.
Harris v. Devon Energy Prod. Co., L.P., No. 12-40137 (5th Cir. Dec. 7, 2012). In this appeal of a district court decision adopting a magistrate judge’s Report and Recommendation and granting plaintiffs’ motion to dismiss without prejudice after testing revealed that contamination was no longer present in their well, the Fifth Circuit ruled in an unpublished opinion that the district court had abused its discretion and held that the lawsuit should be dismissed with prejudice. Noting that plaintiffs had conceded that they could not prove that defendant’s drilling activities caused the contamination in their well and that there was no evidence explaining the lab report upon which the complaint was based, the Fifth Circuit concluded that plaintiffs sought to avoid an imminent adverse result on summary judgment—which was sufficient to cause plain legal prejudice to defendant.