Ruling on an issue of first impression, the Colorado Court of Appeals, Division I, ruled on July 3, 2013 in Strudley v. Antero Resources Corp. that Lone Pine Orders are prohibited under Colorado law. In so holding, the court reversed the ruling of the trial court that entered a Lone Pine Order requiring plaintiffs to present prima facie evidence to support their claim that hydrofracking had contaminated their groundwater or risk having their case dismissed.

In an earlier article on this blog titled, “Lone Pine Order Ends ‘No Causation’ Hydrofracking Case,” we discussed the lower court’s rationale for dismissing plaintiffs’ case as a result of their failure to comply with the court’s Lone Pine Order requirements.

In the wake of the decision, some commentators have argued that Lone Pine Orders still remains useful in fracking litigation. Although that may be true, this observation adopts an unnecessarily narrow view of the value of Lone Pine Orders in toxic tort litigation generally. There is nothing particularly unique about hydrofracking litigation that lends itself to Lone Pine advocacy other than questionable causation, which is fairly common in toxic tort case litigation.

For example, we wrote an article on this blog concerning the Happyland Social Club Fire Litigation, which involved 87 wrongful death claims. The Bronx Supreme Court’s entry in 1992 of a Lone Pine Order was instrumental in obtaining dismissals on behalf of defendants whose products plaintiffs could not prove were present in the club at the time of the fire.

In that case, defendants obtained a Lone Pine Order on the sole issue of product identification. Plaintiffs’ theory of the case was that the defendants’ products were fire initiators, fire promoters or, alternatively, emitted toxic fumes when burned. The contents of the social club were stored by Plaintiffs Steering Committee in a vast warehouse in Lower Manhattan. The Catch-22 for plaintiffs was that if a product was in the warehouse more or less intact, it could not have burned and contributed to the deaths of the plaintiffs. On the other hand, if the product was consumed in the fire, there was no way of identifying the product or its manufacturer. As a result, plaintiffs were not able to make a proper product identification in many instances pursuant to the Lone Pine Order and, consequently, many defendants were dismissed from the case.

Unlike the trial court in Strudley, the Happyland Lone Pine Order did not deal with the issue of medical causation, but merely product identification. To make the Lone Pine Order palatable to Plaintiffs Steering Committee, the defendants agreed to submit to limited deposition and document discovery solely on the issue of product identification. In doing so, the defendants avoided having to take discovery in 87 wrongful death cases, most of which would have been conducted in Ecuador.

If the Lone Pine Order entered by the trial court in Strudley had a weakness, it was perhaps that the order imposed too long a laundry list of demands for plaintiffs to meet. Perhaps the defendants were too successful in having the trial court adopt their argument.  In the final analysis, however, it may have made no difference how the Lone Pine Order was structured if the Lone Pine concept is not recognized under Colorado jurisprudence.

In my experience, the simpler the Lone Pine Order, the better. After years of litigation, an Oklahoma state court judge, Deborah C. Shallworth, entered a Lone Pine Order in the Page Belcher Federal Building PCB Litigation, which was a toxic tort litigation against Public Service of Oklahoma, arising from an alleged PCB exposure in the aftermath of a transformer fire. Pursuant to that Lone Pine Order, plaintiffs were required to submit affidavits from their medical doctors establishing a causal link between the injury alleged and PCB exposure. Although a seemingly simple requirement (as compared to what was demanded of plaintiffs in Strudley), many of the Oklahoma plaintiffs could not meet the requirement and their cases were dismissed.

The Colorado Court of Appeals decision in Strudley should be studied by toxic tort practitioners interested in Lone Pine jurisprudence. The opinion contains an excellent survey of Lone Pine orders adopted in other jurisdictions. At the same time, the decision cites those cases in which courts have expressed concern about their “untethered use.” Thus, practitioners on both sides of the toxic tort bar can find helpful language in the opinion.

Are there other uses of Lone Pine Orders other than providing better case management? In an article published in Law 360 titled, “Lone Pine Orders Are Still Useful in Fracking Litigation,” (August 7, 2013), Michael K. Murphy of Gibson Dunn & Crutcher LLP, argues that a Lone Pine Order forces a plaintiff to pick a theory and live with it, providing defendants with a target for later discovery and expert attacks. Therefore, Murphy contends that, even though the entry of a Lone Pine Order does not result in dismissal of plaintiff’s case, it may provide a tactical advantage to defendants later on. In particular, he points to Baker, et al. v. Anschutz Exploration Corp., No. 11-06119 (W.D.N.Y.) (Doc. 112, filed June 27, 2013), as an illustration of this strategy. By coincidence, the same plaintiff law firm represented the plaintiffs in both Baker and Strudley.