By William A. Ruskin
The most recent successful use of a Lone Pine Order resulted in an order of dismissal in William G. Strudley v. Antero Resources Corporation, et al., a hydro-fracking toxic tort case pending in the District Court for Denver County in Colorado. On May 9, 2012, District Court Judge Ann B. Frick dismissed plaintiffs' action due to their failure to comply with the court's Modified Case Management Order ("MCMO"), which had been entered several months earlier. The MCMO required plaintiffs to provide the Court with sworn expert affidavits establishing the identity of the hazardous substances plaintiffs alleged caused their harm; whether these substances could cause the type of diseases and illnesses claimed by plaintiffs (general causation); the dose or quantitative measurement of the concentration, timing and duration of alleged exposure to each substance; an identifiable, medically recognizable diagnosis of the specific disease or illness for which each plaintiff claims medical monitoring is necessary; and a conclusion that each such disease or illness was caused by the alleged exposure (specific causation).
As Judge Frick noted in her decision, the plaintiffs scrambled to provide a creditable response to the MCMO over the next several months. Plaintiffs submitted a jumble of maps, photos, medical records, air and water sampling analysis reports, together with the affidavit of Thomas L. Kurt, M.D., MPH. In a nutshell, the Court found that Dr. Kurt merely opined that further investigation was necessary, but offered no opinion as to whether the purported exposures were a contributing factor to plaintiffs' alleged injuries or illnesses. Plaintiffs failed to provide any "statement regarding what constitutes dangerous levels of any substance in drinking water or whether any causal link exists between the study's results and plaintiffs' alleged injuries." The Court determined that Dr. Kurt's Affidavit was wholly lacking in establishing causation and, at times, presented evidence "circumstantially, in direct contradiction to plaintiffs' allegations."
In their Complaint, plaintiffs alleged that "environmental contamination and polluting events caused by the conduct and activities of the defendants... caused the release, spills and discharges of combustible gases, hazardous chemicals and industrial wastes from their oil and gas drilling facilities..." According to the petition, the defendants engaged in oil and gas exploration approximately one mile from the plaintiffs' residence. Plaintiffs alleged that they relied on a groundwater well for "drinking, bathing, cooking, washing and other daily uses," but that drilling operations had caused various toxic chemicals to contaminate the air and their water well, forcing them to pack up and abandon their home. In addition to personal injuries, they requested that a medical trust fund be established to monitor their medical conditions.
The result achieved in this case was due to excellent legal work by James D. Thompson III at Vinson & Elkins in Houston and Daniel J. Dunn at Hogan Lovells in Denver, who represented Antero.
It is not enough to draft a motion seeking entry of a Lone Pine Order stating, in sum or substance, "how about that Lone Pine Order, judge?" In their memorandum in support of the Lone Pine Order, the Antero lawyers argued: (1) that the facts alleged in plaintiffs' Complaint were not sufficient for the court or the parties to expend their resources in discovery; (2) that plaintiffs' Complaint identified no specific exposure or injury; (3) that plaintiffs' initial disclosures provided no evidence of specific exposure, injury or causation; (4) that independent evidence concerning the well operations demonstrated that there was no factual basis for plaintiffs' claims; (5) that the court had the authority to enter a Lone Pine Order; and (6) that the Lone Pine Order would in no way prejudice plaintiffs. The defendants successfully argued that any burdens associated with requiring plaintiffs to make a prima facie showing on their claims were outweighed by the benefits:
A Lone Pine order will assist the parties and this Court in efficiently and effectively assessing the merits of plaintiffs' claims before engaging in costly and time-consuming full discovery and pre-trial procedures. Such an order will promote efficient pre-trial and trial proceedings by focusing whether plaintiffs can produce admissible expert testimony concerning exposure, injury and causation. If plaintiffs cannot produce such discovery, then the resources of the parties and the Court should not be wasted. Dismissal, in that instance, would be appropriate.
It is not as if plaintiffs' counsel did ot have the financial or technical resources to comply with the Lone Pine Order if their clients' case had merit. Plaintiffs are represented by Napoli Bern Ripka Shkolnik, LLP, a well-heeled New York plaintiff personal injury firm that had the resources to represent hundreds of plaintiffs in the World Trade Center Disaster Site Litigation and battle Exxon in the New York City MTBE Litigation. The Napoli Law Firm has now branched out, according to its website, into the oil and gas exploration field and has conducted informational meetings with groups of Colorado residents residing near drilling operations concerning their legal options.
If plaintiffs' evidence of causation was so lacking in the high-profile Strudley case, why shouldn't all similar hydrofracking cases be "tested" by Lone Pine? The alternative is to subject oil and gas industry defendants nationwide to the burden of defending frivolous spare-no-expense WTC Disaster Site-style litigations. These toxic tort cases can go on for years and take on a life of their own. Better for the courts and all the litigants if causation evidence must be demonstrated at the outset of the case rather than at the tail end.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
Sign in with your Lexis.com ID to access additional materials on hydro-fracking in Energy Law and Transactions: Shale Gas Development and Hydraulic Fracturing (Matthew Bender).
If you do not have a Lexis.com ID, you can purchase Energy Law and Transactions (Matthew Bender).
For more information about LexisNexis products and solutions, connect with us through our corporate site.