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Colorado Court Opens Doors to Plaintiffs Challenging Fracking

A Colorado appeals court last week broke new ground in the state by ruling that a trial court cannot enter a so-called “Lone Pine Order,” requiring plaintiffs in a toxic tort case alleging damages from fracking operations, to present prima facie evidence supporting their claims before discovery has started.  Strudley v. Antero Resources, 2013 COA 106, No. 12CA1251.

Plaintiffs had alleged that fracking operations within a mile of their property contaminated their well.  The trial court in Strudley granted Defendant’s motion to dismiss, holding that Plaintiffs did not meet their burden of establishing a prima facie case for exposure to chemicals alleged to have caused their injuries.  This holding came after the court had issued a “Lone Pine Order.”  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.  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.

The Colorado Court of Appeals held that such orders were prohibited under Colorado law.  Relying upon prior precedent from the Colorado Supreme Court in addressing similar orders in trade secret and unfair competition cases, Curtis Inc. v. District Court, 526 P.2d 1335, 1339 (Colo. 1974) and Direct Sales Tire Co. v. District Court, 686 P.2d 1316, 1319 (Colo. 1984), the Court found that no such pre-discovery requirement was imposed by CRCP Rule 34, and contradicted the broader policy of the rules that all conflicts should be resolved in favor of discovery.  The Court went through a lengthy analysis of Lone Pine Orders from other jurisdictions.  It concluded that even though the Colorado Supreme Court had recently revised CRCP Rule 16 and other discovery rules to “ create a differential case management/early disclosure/limited discovery system,” it did not read those rules as effectively overruling the holdings in Curtis and Direct Tire Sales.