Effort Mounted To Reverse Colorado Lone Pine Ban

A substantial effort has been mounted to urge the Colorado Supreme Court to reverse the intermediate appellate court’s ruling on July 3, 2013 in Strudley v. Antero Resources Corp., which determined  that Lone Pine Orders are prohibited under Colorado law.  In so holding, the Strudley court reversed a trial court ruling that had dismissed plaintiffs’ case for failing to provide the court with any competent prima facie evidence of causation.  We discussed the appellate court holding in a recent article, "Does the Lone Pine Still Stand?"

By way of background, Strudley is a complex toxic court action involving numerous claims by the plaintiffs premised on allegations that the defendants committed tortious acts while hydrofracking natural gas oils. The central issue in the case was whether the defendants caused plaintiffs’ alleged injuries, which the plaintiffs vaguely described as “health injuries” from exposure to air and water contaminated by “hazardous gases, chemicals and industrial waste”. 

The trial court, cognizant of the significant discovery and cost burdens presented by a case of this nature, entered a Lone Pine Order requiring plaintiffs to make an early prima facie showing of exposure and causation. When plaintiffs failed to meet this burden, the trial court dismissed plaintiffs’ case. A Lone Pine Order typically requires a plaintiff to present sufficient evidence prior to full discovery to establish a foundational evidentiary showing of one or more critical elements of the claims, or to risk possible dismissal.

In the wake of this decision, the Colorado Supreme Court has been urged by the bar to take a more expansive view of what case management tools are available under Colorado law. The Colorado Defense Lawyers Association, the Colorado Civil Justice League (“CCJL”) and the American Petroleum Institute (“API”) have all filed amicus curiae in support of the use of Lone Pine Orders in Colorado.

In particular, the memoranda of CCJI and API provide excellent surveys on the extent to which state and federal courts throughout the United States have embraced Lone Pine Orders as an important case management tool. These well-written briefs should be read by toxic tort practitioners with an interest in case management.  In a well-crafted brief authored by Snell & Wilmer, CCJL argues that, if permitted to stand, Strudley will chill efforts by trial courts to exercise active case management. 

As the basis for its argument, CCJL relies upon the Colorado Supremes Court’s June 2013 decision in DCP Midstream, LP v. Anadarko Petroleum Corp, in which the court announced that trial courts should consider cost-benefit and proportionality factors in managing discovery. In the decision, the court held  that Colorado law reflects “an evolving growing effort to require active judicial management of pretrial matters to curb discovery abuses, reduce delay, and decrease litigation costs. The Committee Comments to the revised Rule 16 similarly recognize that “where a case is complex or requires special treatment, the Rules provide flexibility so that the parties and Court can alter the procedure.”  Thus, pursuant to revised Rule 16 and Supreme Court precedent, the Court of Appeals should have upheld the use of Lone Pine.

In arguing for a case management scheme that would permit the Colorado trial courts to apply Lone Pine, CCJL cautions that Lone Pine is hardly a hammer that should be arbitrarily or routinely invoked and is not by any means a substitute for summary judgment.  In summary, CCJL argues that Strudley is bad precedent that will only obstruct the creativity of trial judges in managing their cases. 

API’s excellent amicus brief, submitted by Steptoe & Johnson, also argues that Strudley is not consistent with the DCP Midstream. API emphasizes that toxic and mass tort cases present unique case management challenges. 

Cases involving many parties on the plaintiffs’ or defendants’ side often feature broad allegations of liability that are conclusory and lacking in detail, or are based on the parties’ beliefs or dramatic human situations, rather than competent evidence. Allegations of injuries may include every conceivable injury without regard to exposure or actual liability, and without specific information relating to each plaintiff. 

Thus, argues API, the parties and the courts are often required to spend enormous amounts of money, time and energy litigating these cases with respect to every element and defense, although one issue is often dispositive. When that single issue can be dealt with out front, it often results in dismissal or, alternatively, an early mediated settlement.  As the New Jersey court observed in the original Lone Pine case, many defendants understandably will settle such claims, even if meritless, rather than spend the hundreds of thousands of dollars necessary for discovery.  The plaintiff bar despises Lone Pine because it disincentivizes defendants from paying substantial nuisance value settlements in cases of questionable liability.

Considering the jurisprudential strength and logic of the amici curiae arguments, we believe that the Supreme Court will hold that Lone Pine is alive and well in Colorado and reinstate Judge Frick’s trial court decision.   

Does the Lone Pine Still Stand?

Ruling on an issue of first impression, the Colorado Court of Appeals, Division I, ruled on July 3, 2013 in Strudley v. Antero Resources Corp. that Lone Pine Orders are prohibited under Colorado law. In so holding, the court reversed the ruling of the trial court that entered a Lone Pine Order requiring plaintiffs to present prima facie evidence to support their claim that hydrofracking had contaminated their groundwater or risk having their case dismissed.

In an earlier article on this blog titled, “Lone Pine Order Ends ‘No Causation’ Hydrofracking Case,” we discussed the lower court’s rationale for dismissing plaintiffs’ case as a result of their failure to comply with the court’s Lone Pine Order requirements.

In the wake of the decision, some commentators have argued that Lone Pine Orders still remains useful in fracking litigation. Although that may be true, this observation adopts an unnecessarily narrow view of the value of Lone Pine Orders in toxic tort litigation generally. There is nothing particularly unique about hydrofracking litigation that lends itself to Lone Pine advocacy other than questionable causation, which is fairly common in toxic tort case litigation.

For example, we wrote an article on this blog concerning the Happyland Social Club Fire Litigation, which involved 87 wrongful death claims. The Bronx Supreme Court’s entry in 1992 of a Lone Pine Order was instrumental in obtaining dismissals on behalf of defendants whose products plaintiffs could not prove were present in the club at the time of the fire.

In that case, defendants obtained a Lone Pine Order on the sole issue of product identification. Plaintiffs’ theory of the case was that the defendants’ products were fire initiators, fire promoters or, alternatively, emitted toxic fumes when burned. The contents of the social club were stored by Plaintiffs Steering Committee in a vast warehouse in Lower Manhattan. The Catch-22 for plaintiffs was that if a product was in the warehouse more or less intact, it could not have burned and contributed to the deaths of the plaintiffs. On the other hand, if the product was consumed in the fire, there was no way of identifying the product or its manufacturer. As a result, plaintiffs were not able to make a proper product identification in many instances pursuant to the Lone Pine Order and, consequently, many defendants were dismissed from the case.

Unlike the trial court in Strudley, the Happyland Lone Pine Order did not deal with the issue of medical causation, but merely product identification. To make the Lone Pine Order palatable to Plaintiffs Steering Committee, the defendants agreed to submit to limited deposition and document discovery solely on the issue of product identification. In doing so, the defendants avoided having to take discovery in 87 wrongful death cases, most of which would have been conducted in Ecuador.

If the Lone Pine Order entered by the trial court in Strudley had a weakness, it was perhaps that the order imposed too long a laundry list of demands for plaintiffs to meet. Perhaps the defendants were too successful in having the trial court adopt their argument.  In the final analysis, however, it may have made no difference how the Lone Pine Order was structured if the Lone Pine concept is not recognized under Colorado jurisprudence.

In my experience, the simpler the Lone Pine Order, the better. After years of litigation, an Oklahoma state court judge, Deborah C. Shallworth, entered a Lone Pine Order in the Page Belcher Federal Building PCB Litigation, which was a toxic tort litigation against Public Service of Oklahoma, arising from an alleged PCB exposure in the aftermath of a transformer fire. Pursuant to that Lone Pine Order, plaintiffs were required to submit affidavits from their medical doctors establishing a causal link between the injury alleged and PCB exposure. Although a seemingly simple requirement (as compared to what was demanded of plaintiffs in Strudley), many of the Oklahoma plaintiffs could not meet the requirement and their cases were dismissed.

The Colorado Court of Appeals decision in Strudley should be studied by toxic tort practitioners interested in Lone Pine jurisprudence. The opinion contains an excellent survey of Lone Pine orders adopted in other jurisdictions. At the same time, the decision cites those cases in which courts have expressed concern about their “untethered use.” Thus, practitioners on both sides of the toxic tort bar can find helpful language in the opinion.

Are there other uses of Lone Pine Orders other than providing better case management? In an article published in Law 360 titled, “Lone Pine Orders Are Still Useful in Fracking Litigation,” (August 7, 2013), Michael K. Murphy of Gibson Dunn & Crutcher LLP, argues that a Lone Pine Order forces a plaintiff to pick a theory and live with it, providing defendants with a target for later discovery and expert attacks. Therefore, Murphy contends that, even though the entry of a Lone Pine Order does not result in dismissal of plaintiff’s case, it may provide a tactical advantage to defendants later on. In particular, he points to Baker, et al. v. Anschutz Exploration Corp., No. 11-06119 (W.D.N.Y.) (Doc. 112, filed June 27, 2013), as an illustration of this strategy. By coincidence, the same plaintiff law firm represented the plaintiffs in both Baker and Strudley.


Lone Pine’s Impact On Pharma Products Litigation

We have written previously about the increasing acceptance by courts to entertain the use of Lone Pine orders as a case management tool. For example, in the Happyland Social Club Fire Litigation, which involved 87 wrongful death claims, the Bronx Supreme Court’s entry in 1992 of a Lone Pine order was instrumental in obtaining dismissals on behalf of defendants whose products plaintiffs could not identify as being in the club at the time of the fire.

More recently, we discussed the use of a Lone Pine order by a Colorado state court in a hydrofracking toxic tort case. In that matter, the court dismissed the claims of plaintiffs who failed to submit sworn expert affidavits establishing a causal relationship between their illnesses and hydrofracking chemicals they claimed to have been exposed to.

Increasingly, Lone Pine orders are being employed as a case management tool in pharmaceutical mass tort cases. Most recently, Judge John F. Keenan, who presides over the Merck Fosamax Products Liability MDL in the SDNY, issued a sweeping Lone Pine order on November 20, 2012.

In its Opinion and Order, the court considered whether to apply the Lone Pine order to all of the plaintiffs’ cases or merely a sub-set. In evaluating this issue, the court observed that was at least some medical or scientific evidence that Fosamax could cause osteonecrosis of the jaw (known as “ONJ”). In light of this purported evidence, the court refused to apply the Lone Pine order to those plaintiffs alleging that they suffered from ONJ.

Why did Judge Keenan enter the Lone Pine order in 2012 when he had rejected earlier efforts by Merck to enter a Lone Pine order in 2010 and 2011? In short, he had become skeptical about the bona fides of plaintiffs’ claims and the candor of Plaintiff’s Steering Committee. “Plaintiffs’ habit of dismissing cases after both parties have expended time and money on case-specific discovery demonstrates that this MDL is ripe for a Lone Pine order.”

Based upon plaintiff’s pattern of behavior, the court said it had “reason to believe that spurious or meritless cases are lurking in the some 1,000 cases on the MDL docket.” The court noted that “more than 50% of the cases set for trial had been dismissed by plaintiffs as had some 31% of cases that had been selected for discovery.

Judge Keenan has been hearing cases in the SDNY since September 1983. Having presided over trials for thirty years, he has developed good instincts in determining when judicial resources are being squandered. Although he did not come right out and state as much, he had clearly become frustrated by Plaintiff’s Steering Committee wasting the court’s time and forcing Merck’s trial counsel to jump through unnecessary hoops. 

Apart from the litany of stringent (and precedential) Lone Pine requirements imposed upon the plaintiffs to whom the order applied, the decision is helpful because it cites with approval the decisions of multiple other courts overseeing complex pharmaceutical MDLs using Lone Pine orders to streamline their dockets. The cited cases include: In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871 (E.D. Pa. Nov. 15, 2010); In re Zyprexa Prods. Liab. Litig., MDL No. 1596 (E.D.N.Y. June 2, 2010); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., MDL No. 1699 (N.D. Cal. Aug. 1, 2008); In re Vioxx Prods. Liab. Litig., MDL No. 1657 (E.D. La. Nov. 9, 2007, July 6, 2009); In re Rezulin Prods. Liab. Litig., MDL No. 1348 (S.D.N.Y. May 9, 2005); In re Baycol Prods. Liab. Litig., MDL No. 1431 (D. Minn. Mar. 18, 2004).

In ruling on the Lone Pine application, the court rejected the Plaintiff’s Steering Committee’s suggestion that the MDL had outlived its usefulness and that the court should adopt an “exit plan” and remand all of the cases for trial rather than entertain a Lone Pine order. The court also rejected Plaintiffs’ argument that a Lone Pine order should only be entertained after a global settlement was reached.

The court reasoned that the primary purpose of Lone Pine orders is to eliminate meritless cases, which is at best only tangentially related to the status of settlement negotiations. Whether the MDL culminates in a global or partial settlement, or the remand of cases back to their home districts, the court believed that a Lone Pine order would boost efficiency under either scenario. “In the event the parties reach a settlement, the elimination of spurious claims will ensure that only plaintiffs with meritorious cases are compensated. If the MDL concludes without settlement, and cases are transferred back to their home districts, Lone Pine will ensure that the home districts receive only viable cases.”

The Product Liability Dilemma: Product vs. Service.

Courts have long struggled with hybrid fact scenarios that  involve both a product and a service. When a corporate defendant is sued for personal injury, is it more advantageous for the defendant to be characterized as a service provider rather than a product manufacturer? The knee jerk reaction of some defense lawyers is that they would prefer their client to be cast as service providers. After all, who wants their client to be subjected to a strict liability product claim if it could be avoided, right? Not so fast. The answer to this question may be more complicated that it appears at first blush.

In an article titled, “The Shirt Off My Back: Using the Relationship Between a Product and a Service to Your Advantage,” Brigid M. Carpenter and Caldwell G. Collins, lawyers at Baker Donelson Bearman Caldwell & Berkowitz, P.C., weigh the product versus service dilemma in a thoughtful article that appeared in the IADC Product Liability Committee Newsletter (November 2012).

Carpenter and Collins point out that there are many reasons why a plaintiff or defendant might want to fall within or avoid the products liability statutory schemes that exist in many jurisdictions. On the one hand, strict liability is liability without fault. In those cases, plaintiff has to prove the product is defective and unreasonably dangerous, but there is no burden of proving fault on the part of the manufacturer or seller.

On the other hand, depending upon the circumstances, the authors point out that it might be easier for a plaintiff to prove a defendant breached the duty of reasonable care with regard to its behavior than to proffer credible expert testimony about the defective nature of a product. One factor to be considered is that in negligence actions, sellers and manufacturers may have the advantage of certain defenses not available in product liability cases, such as contributory negligence. However, another consideration is that product liability statutes often carry different damages caps and statutes of limitations, depending upon the jurisdiction.

 Equally important, the authors provide a valuable discussion of how courts tend to resolve the product versus service issue. Their litigation  tip: based upon their survey of the case law, courts tend to focus on the relationship between the product and service in question. Therefore, in the Hathaway v. Cintas Corporate Services case involving a plaintiff burn victim who alleged that the defendant uniform rental company was responsible for his injuries, either as a service provider or a product seller, the authors analyze how the Indiana federal district trial court, in denying summary judgment, focused on the “service” aspects of the uniform rental company’s contract, which provided for the cleaning and maintenance of uniforms provided. 

Lone Pine Order Ends “No Causation” Hydrofracking Case

A Lone Pine Order is an innovative judicial case management tool that requires toxic tort plaintiffs to produce credible expert evidence to support their theory of causation (or another key component of plaintiffs’ claim) prior to the commencement of pre-trial discovery. A Lone Pine Order is designed to weed out frivolous claims before defendants must invest hundreds of thousands of dollars in legal fees and incalculable time and effort only to learn prior to trial that plaintiffs cannot establish a prima facie case. Both federal and state court judges have learned by experience that a Lone Pine case management order can end in their infancy baseless cases that would otherwise require an enormous expenditure of judicial time and resources. I have written about the use of Lone Pine Orders both on this blog and in journal articles

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.   



Lone Pine Orders–Shutting The Door On Frivilous Toxic Tort Suits

A Lone Pine Order is a case management tool that requires toxic tort plaintiffs to produce credible evidence to support a key legal component of their claim prior to the commencement of pre-trial discovery.  As Niall A. Paul and Timothy D. Houston of Spilman Thomas & Battle write in a recent IADC Newsletter article titled, "Checking Meritless Mass Tort Claims at the Door–Lone Pine Case Management Orders Reinforce the Obligation of Plaintiffs’ Counsel to Have a Case Before Filing Suit," a Lone Pine Order should be designed to weed out frivolous claims "before a defendant is forced to undergo the financial rigors of protracted discovery and invest hundreds of thousands of dollars and irrecoverable time only to face the stark reality that plaintiffs are devoid of credible evidence–to establish exposure, injury or causation."   In light of the the enormous defense costs consumed in document production and pretrial and the increasing emphasis by in-house counsel on cost control in toxic tort litigation, it is surprising that Lone Pine Orders are not sought by defense counsel more frequently than they are.  A Lone Pine Order can require the plaintiffs to produce credible evidence on the issues of (1) exposure; (2) causation; and (3) damages.  However, that may impose a greater burden on plaintiffs’ counsel than some courts, particularly state courts, may be willing to require early in a litigation. However, I have had success in identifying a single issue–my client’s best issue–and seeking a Lone Pine Order on that sole issue rather than on multiple issues.  For example, in the Happyland Social Club Fire Litigation, which case arose from the deaths of some 87 people at an illegal social club in New York City on March 23, 1990 (see photo above), defendants obtained a  Lone Pine Order on the sole issue of product identification.  Plaintiffs’ theory of the case was that the defendants’ products were fire initiators, fire promoters or, alternatively, emitted toxic fumes when burned.  The contents of the social club were stored by Plaintiffs Steering Committee in a huge warehouse in lower Manhattan.  The Catch-22 for plaintiffs was that if a  product was in the warehouse more or less intact, it could not  have burned and contributed to the deaths of the plaintiffs.  On the other hand, if the product was consumed in the fire, there was no way of identifying the product or its manufacturer.  As a result, plaintiffs were not able make a proper product identification in many instances, pursuant to the Lone Pine Order and, consequently, many defendants were dismissed from this Bronx state court case. It is unlikely that a state court judge in the Bronx would have entered a more onerous order.  In every instance were they are employed, Lone Pine Orders foster judicial economy and substantially reduce the litigationn costs for all parties. In In re Vioxx, 557 F.Supp. 2d 741 (E.D.La. 2008), the federal district court in Louisiana observed that Lone Pine Orders also reduced the litigation expenses incurred by plaintiffs’ counsel in prosecuting mass tort actions.