On April 7th the Colorado Supreme Court, en banc, granted a petition for writ of certiorari filed by Antero Resources, agreeing  to review the decision of the Colorado Court of Appeals which reversed the trial court’s grant of a “Lone Pine” order.  No. 13 SC 576, Court of Appeals Case No. 12 CA 1251, Antero Resources Corporation, et al, Petitioners v. William G. Strudley, et al., Respondents. (Cert. granted, April 7th, 2014.)  The Colorado court agreed to consider whether a district court is barred as a matter of law from entering a modified case management order requiring the plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery.  The court also agreed to consider whether, if such modified case management orders are not prohibited as a matter of law, the district court in this case acted within its discretion in entering and enforcing such an order.

At the trial court, Plaintiffs Strudley alleged that fracking operations within a mile of their property contaminated their well.  After issuing a so-called “Lone Pine” Order, the court granted the Antero Resources Defendants’ motion to dismiss, holding that Plaintiffs did not meet their burden of establishing a prima facie case for exposure to fracking chemicals alleged to have caused their injuries.  Strudley v. Antero Res. Corp., No. 2011 CV2218 at *1-2 (Denver Dist. Ct. Colo. May 9, 2012).  A “Lone Pine” Order is a court order in mass toxic tort cases requiring Plaintiffs to, at a minimum, show: (1) the identity of the chemical or substance that caused the injury; (2) the specific disease, illness, or injury caused by the substance; and (3) a causal link between exposure and the injury.  Lore v. Lone Pine Corp., No. L-03306-85, 1986 N.J. Super. LEXIS 1626, at *3-4 (N.J. Sup. Ct. Nov. 18, 1986).  (Some “Lone Pine Orders” also require a showing of the amount of the substance or chemical to which the plaintiffs were exposed, expert medical opinion to exclude other causes, and specific dates of exposure to the toxic substance. Id. at *6–7.)

On appeal the Colorado Court of Appeals then reversed the trial court, holding that it lacked the inherent power to issue such an order under the procedural rules governing management of cases in Colorado.  The appellate court held that a trial court cannot enter a “Lone Pine” Order, requiring plaintiffs in a toxic tort case alleging damages from fracking operations, to presentprima facie evidence supporting their claims before discovery has started.  Strudley v. Antero Resources, 2013 COA 106, No. 12 CA 1251, 43 ELR 20154, (July 3rd, 2013.)  Relying on precedent from the Colorado Supreme Court’s prior case law,  the appellate court had reasoned that no such pre-discovery requirement was imposed by CRCP Rule 34, and that it contradicted the broader policy of the rules that all conflicts should be resolved in favor of discovery.   

The Colorado Supreme Court had recently revised CRCP Rule 16 and other discovery rules just prior to the Court of Appeals’ decision,  creating a “differential case management/early disclosure/limited discovery system” in appropriate cases.   Attorneys at Spencer Fane have opined that the grant of certiorari by the court is an indication that this recent policy will allow for “Lone Pine-type” order at the trial court’s discretion, and that the order of the trial court will be restored.  If so, this would be an important step for defendants in requiring plaintiffs to establish a prima facie nexus between the alleged contamination and plaintiffs’ claimed injuries, before expensive discovery commences.