In recent years, a trend has developed in toxic tort and other personal injury-based complex litigation in which defendants ask the court to enter a case management order requiring the plaintiff to produce evidence of a prima facie case before being allowed to proceed with discovery – a so-called Lone Pine order. Last month, in a lawsuit brought by a family alleging physical and property injuries sustained from nearby natural gas drilling operations, the Colorado Supreme Court ruled that trial courts in Colorado lack the authority under state law to enter Lone Pine orders. Specifically, the Court had been asked to decide “whether a district court is barred as a matter of law from entering a modified case management order requiring plaintiffs to produce evidence essential to their claims after initial disclosures but before further discovery.” The Colorado Supreme Court concluded that district courts were, indeed, barred from entering such orders.
In Antero Resources Corp. v. Strudley, the plaintiffs alleged that drilling operations near their home caused physical and property damages, including the assertion that exposure to pollutants from the drill site caused them a variety of physical injuries. After the parties exchanged initial disclosures, Antero Resources asked the district court to enter a Lone Pine Order requiring the Strudleys to present prima facie evidence of their claims before the parties engaged in further discovery. The district court granted the request and precluded the Strudleys from pursuing any discovery until they satisfied this evidentiary requirement.
The Strudleys submitted evidence relating to the pollutants released and a medical affidavit that asserted further investigation of their physical ailments was warranted, but offered no evidence of actual causation. Antero Resources moved to dismiss the case, arguing, in part, that the plaintiffs failed to demonstrate a prima facie case of causation. The district court agreed, dismissing the lawsuit. On appeal, the appellate court reversed and reinstated the plaintiffs’ claims. Antero Resources then appealed to the Colorado Supreme Court.
In its review, the Colorado Supreme Court first observed that Lone Pine orders developed from an unpublished opinion of the Superior Court of New Jersey in Lore v. Lone Pine Corp. Such orders, typically used in toxic tort cases, generally require plaintiffs to proffer evidence establishing a prima facie case of injury, exposure and causation before conducting any discovery. In this way, courts have used Lone Pine orders to minimize burdens on defendants by erecting a preliminary evidentiary requirement for plaintiffs to satisfy.
Rather than wading into a policy discussion of the costs and benefits of Lone Pine orders, the Colorado Supreme Court concluded that existing Colorado law and procedures do not authorize state courts to adopt Lone Pine orders.
Although this opinion is limited to an interpretation of Colorado state law, it presents useful guidance to parties in other states, including Texas, involved in fracking, oil and gas, and other toxic tort litigation matters.
Antero Resources Corp. v. Strudley, No. 13SC576 (Colo. Apr. 20, 2015).