On April 7, 2014, the Colorado Supreme Court agreed to review a court of appeals decision that overturned a Lone Pine Order and a dismissal order issued by the lower court in Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services, and Frontier Drilling LLC (Case No. 2011-cv-2218, Denver County District Court), a toxic tort case involving hydraulic fracturing.

Two questions will be addressed by the Supreme Court:

  • Whether a district court is barred as a matter of law from entering into a modified case management order requiring the plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery.
  • 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.

The Strudley family filed their lawsuit in March 2011, complaining that defendants’ natural gas well activities, including hydraulic fracturing, had contaminated their 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 defendants’ operations, as well as how long and at what concentration levels.

The plaintiffs submitted the affidavit of a doctor who, although never examining 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 dismissed, leading to the appellate review of the two orders.

The Colorado Court of Appeals reversed, citing two primary reasons.

The first was anchored in two Colorado Supreme Court cases that the court interpreted 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”.

Second, the court cited differences between Colorado Rule of Procedure 16 and Federal Rule of Civil Procedure 16 regarding a court’s discretion to manage pretrial matters.

The decision of the Colorado Supreme Court will be of great interest to both plaintiffs and defendants – with plaintiffs wanting Lone Pine Orders prohibited and defendants, seeking the opposite, seeing Lone Pine Orders as a means to fend off frivolous lawsuits early on by requiring plaintiffs to establish a causal connection.

For further information on this case, click here.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.