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Lone Pine Order Cut Down By Colorado Court of Appeals

In May, we reported on the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court  May 9, 2012), in which a state trial court issued a Lone Pine order requiring the plaintiffs to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ hydraulic fracturing activities.  The court subsequently dismissed the case when the plaintiffs failed, in the court's view, to meet this initial burden.  The dismissal was appealed and in Strudley v. Antero Resources Corp., Court of Appeals No. 12CA1251 (Co. Ct. Appeals, 1st Div., July 3, 2013), reversed.  

The Court of Appeals opened its decision with a bold pronouncement, that Colorado law flatly prohibits the entry of Lone Pine orders.  Its conclusion, described in a thorough opinion, was based on both existing case law and on an analysis of Colorado's procedural rules.

First, the Court noted that two prior Colorado Supreme Court cases, both involving commercial torts, rejected entry of orders precluding discovery without a prima facie showing because such a requirement "contradicts the broader policy of the [state's procedural] rules that all conflicts should be resolved in favor of discovery."  Slip Op., quoting Curtis, Inc. v. Dist. Court, 186 Colo. 226, 233 (1974). 

Second, the Court rejected the defendants' claims that recent changes to the state's rules of civil procedure overruled these cases.  In particular, the Court noted that while Fed.R.Civ.Proc. 16, often relied upon by courts issuing Lone Pine orders, expressly permits federal courts to "adopt[] special procedures for managing potentially difficult or protracted actions," Colorado's analogous rule contains no similar language.  Indeed, since Colorado's rules are patterned after the federal rules, the omission of this language evidenced, according to the Court, "an intent to grant less discretion to trial courts than that afforded by the federal rules."  

Finally, the Court rejected the issuance of Lone Pine orders on policy grounds, finding that existing procedures such as bringing motions to dismiss or for summary judgment can serve the same stated purpose of challenging claims that were vague or lacked evidence of causation.  This was especially true with respect to the Strudley's case, as it involved only four people from one family as plaintiffs and alleged contamination to a single piece of property, and thus was not nearly as complex as a mass tort action which might involve hundreds of plaintiffs and properties. 

In summary, what was initially a victory for defendants in Colorado toxic tort cases seems to have become a significant defeat.  Had the trial court been faced with a much larger or more complex case, it is possible that the Colorado Court of Appeals would have issued a more nuanced ruling, upholding the issuance of Lone Pine orders in such cases while rejecting them for smaller suits.  Instead, defendants are now faced with an appellate decision that quite plainly holds that, as a matter of law, Lone Pine orders are impermissible under Colorado law.