Colorado High Court Nixes Use of Lone Pine Orders to Streamline Colorado Fracking Litigation

On April 20, 2015, the Colorado Supreme Court issued a ruling interpreting Rule 16 of the Colorado Rules of Civil Procedure and implicating the scope of a trial court’s inherent authority to manage the cases before it. In Antero Resources v. Strudley, the issue decided by the Court was “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.”

Trial Court Decision

The issue reached the Colorado Supreme Court after a trial court dismissed the Strudley’s claims of physical injuries and property damage caused by Antero Resource’s natural gas drilling operations near their home. The Strudleys, on behalf of themselves and their two minor children, alleged that pollutants from the drilling site caused them to suffer a variety of physical injuries, including burning eyes and throats, rashes, headaches, nausea, coughing and bloody noses. However, their complaint did not causally connect specific chemicals to actual injuries.

Following the exchange of initial disclosures, Antero Resources moved the trial court to issue a modified case management order under C.R.C.P. 16(c), specifically requesting a Lone Pine order that required the plaintiffs to present prima facie evidence to support their claims before discovery continued. The trial court granted the motion, and the Strudleys were not permitted any discovery until they provided evidence meeting this threshold.

To comply with the modified case management order, the Strudleys submitted maps, photos, medical records, and air and water sample analysis reports. They also submitted an affidavit from a medical doctor who did not examine the Strudleys but concluded, based on photographs and descriptions of the symptoms, that the family’s symptoms warranted further investigation though he did not offer an opinion as to the cause of the alleged injuries. Antero Resources then filed a motion to dismiss, which was granted by the trial court because the Strudleys failed to make the required prima facie showing. The Strudleys appealed the dismissal to the Colorado Court of Appeals, which reversed the trial court and reinstated the claims.

Colorado Supreme Court Decision

In considering whether the Colorado Rules of Civil Procedure authorize a trial court to issue a Lone Pine order, the Supreme Court first noted that Lone Pine orders developed from an unpublished opinion of the Superior Court of New Jersey in Lore v. Lone Pine Corp. Lone Pineorders, typically used in toxic tort cases, are issued to require plaintiffs to provide evidence sufficient to establish a prima facie case of injury, exposure and causation prior to conducting discovery. Authorized by Federal Rule of Civil Procedure 16(c), they are used to manage complex cases and mitigate potential burdens on the defendants and the court.

In reaching the conclusion that the Colorado Rules of Civil Procedure do not allow for Lone Pine orders, the Court first undertook a textual comparison of Fed. R. Civ. P. 16 with Rule 16 of the Colorado Rules of Civil Procedure:

• The federal rules authorize Lone Pine orders because of a provision allowing the court to adopt “special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems.” Fed. R. Civ. P. 16(c)(2)(A)(L).
• Rule 16(c) of the Colorado Rules of Civil Procedure allows a modified case management order “to allow the parties an appropriate amount of time to meet case management deadlines, including discovery, expert disclosures, and the filing of summary judgment motions” upon request of a party and if a trial is set to commence less than 26 weeks after the at-issue date. Because the language of C.R.C.P 16(c) is “markedly different” from that of Fed. R. Civ. P. 16, the Court found that federal authority in support of Lone Pine orders was not persuasive in the interpretation of C.R.C.P. 16(c).

Though the Court acknowledged that the comments to C.R.C.P. 16 stated that a purpose of the rule is to accomplish “early purposeful and reasonably economical management of cases,” this goal could not be construed as the “kind of explicit authorization” of Lone Pine orders provided for by the federal rules. Additionally, the Court found it significant that C.R.C.P. 16 primarily addressed “basic scheduling matters.” Looking to other rules, the Court pointed out that the disposal of non-meritorious claims could be accomplished by a motion to dismiss for failure to state a claim or a motion for summary judgment. Moreover, C.R.C.P. 11 also allows for sanctions of attorneys and clients for filing pleadings that are not well grounded in fact. These rules, as well as those governing discovery, provide a “range of tools other than Lone Pine orders” through which trial courts can manage cases.

Finally, the Court considered prior Colorado case law and identified several cases limiting the trial court’s ability to require a plaintiff to make a prima facie showing of a claim before compelling a defendant to engage in discovery. The Court emphasized the liberal construction of discovery rules in these cases to support its finding that C.R.C.P. 16 did not contain authority for a trial court to issue a Lone Pine order.

Based on its finding that C.R.C.P. 16(c) is not modeled after Fed. R. Civ. P. 16(c), its examination of the Colorado Rules of Civil Procedure, and case law, the Supreme Court ruled that the trial court lacked authority to enter a Lone Pine order in this case.

Implications

In this case, the Supreme Court was presented with two issues for consideration: whether a trial court is barred from entering a modified case management order in the style of a Lone Pine order and whether, if such 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.

Significantly, the plaintiffs in this case were a family of four, and only four defendants were involved. Under these circumstances, the Supreme Court might have issued a ruling finding that it was an abuse of discretion to issue a Lone Pine order in a relatively simple case, especially compared with more complex toxic tort actions involving far more parties where such an order might be appropriate. Instead, however, the Supreme Court issued a categorical ruling affecting a wider range of cases by deciding that Colorado Rules of Civil Procedure do not allow a trial court to issue a modified case management order requiring plaintiffs to make a prima facie showing in support of a claim prior to engaging in discovery.

Is Strudley the Final Word on Lone Pine Orders in Colorado?

Admittedly, Strudley represents a setback for the energy industry in its defense of fracking litigation in Colorado. Had they won, the industry could have used the decision to secure early dismissals of fracking suits, or at minimum, force fracking plaintiffs to choose and stick with a case theory, which, in turn, would have provided defendants with targets for later discovery and expert attack. Now, as a consequence of this ruling, Colorado fracking defendants are likely to see an increase in defense costs, fewer dismissals and fewer early settlements.

If the past is prologue, fracking plaintiffs’ attorneys will likely try to “shop” Strudley in jurisdictions that have not yet ruled on the permissibility of Lone Pine orders. They may also try to use Strudley as a basis for asking courts in those jurisdictions that have previously endorsed Lone Pine orders to reconsider their decision to do so.

But is Strudley the final word in Colorado on the subject of Lone Pine orders? Based on a review of the Colorado Supreme Court decision, one could make an argument that it is not the final word for this reason: On the last page of the decision, the court states that Colorado’s Rules of Civil Procedure do “not currently authorize Lone Pine orders.” (Emphasis supplied.)

Significantly, the footnote in the decision corresponding to this statement reads as follows: “Our regular procedure for amending the civil rules to make amendments patterned on a federal rule is for the Civil Rules Committee to first examine the issue and make a recommendation to the court. We consider it inadvisable to import Lone Pine orders into our rules absent such a consideration.” (Emphasis supplied.)

Is the Colorado Supreme Court inviting the Civil Rules Committee to “make a recommendation” that it would be “advisable to import Lone Pine orders” into Colorado’s Rules of Procedure? Could it be argued that the Court is implicitly saying that with such a “recommendation” from the Civil Rules Committee, it would be prepared to do so?

Time alone will tell.