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Colorado Supreme Court Affirms Court of Appeals Decision Striking Down Lone Pine Orders

We’ve been following the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218, since May, 2012, when a Colorado trial court dismissed the action following plaintiffs’ failure to establish, pursuant to a Lone Pine order, a prima facie case showing that the defendant, a natural gas drilling company, was responsible for plaintiffs’ personal injuries.  The Lone Pine order required the Strudleys to submit to the Court, before it would allow any discovery, sufficient expert opinions, scientific testing results, and personal medical information to support their claims.  In July, 2013, a Colorado Court of Appeals reversed, finding that Lone Pine orders were not permitted under Colorado law and thus the plaintiffs could not be shut out of the courthouse at such an early stage.

On April 20, 2015, the Court of Appeal’s decision was affirmed, with one dissenting vote, by the Colorado Supreme Court, which held that “[Colorado Rule of Civil Procedure 16] does not provide a trial court with authority to fashion its own summary judgment –like filter and dismiss filter and dismis filter and dismiss claims during the early stages of litigation.”  Strudley v. Antero Resources Corp. No. 13SC576, 2015 WL 1813000 (Colo. Apr. 20, 2015).   The meat of the Colorado Supreme Court’s decision rested on its comparison of Federal Rule of Civil Procedure 16, pursuant to which Lone Pine orders have been issued by federal courts, and Colorado’s rule which was modeled on, but is not identical, to FRCP 16.   Notably, Colorado did not adopt those portions of the federal rule which expressly authorize a court to “adopt[] special procedures for managing potentially difficult or protected actions,” and take action to “eliminate frivolous claims or defenses” and “facilitate in other ways the just, speedy, and inexpensive disposition” of lawsuits.  Rather, Colorado law provides for a form case management order that can only be modified by consent or motion, and then only to alter deadlines, disclosures and motion filing deadlines. The Supreme Court rejected the defendant’s more equitable arguments that the spirit and intent of the Colorado Rules of Civil Procedure, as evidenced by the comments, encourage early dismissal of frivolous claims (presumably such as the one filed by the Strudleys).   A stated goal is not the same as granting authority to take unauthorized actions in furtherance of the goal, the Court held.

The Court also rejected the validity of the dismissal under other civil procedure rules, such as those which allow sanctions for frivolous filings or dismissal for a failure to state a claim.  As the Court noted, challenges to the factual sufficiency of a claim may be made by summary judgment motion with its attendance procedural safeguards or following a failure by a plaintiff to submit to factual or expert discovery.  Finally, the Court reviewed the existing case law relying on and interpreting the state’s Rule 16 and found nothing in those cases to support the issuance of a Lone Pine order.