Supreme Court of Colorado Will Decide Whether Fracking Toxic Tort Case Can Proceed

A Colorado family brought suit against several drilling companies claiming negligence, negligence per se, strict liability, and trespass related to physical and property injuries allegedly caused by drilling activities that contaminated the air, water, and ground near the family’s home.  After the parties filed initial disclosures, the companies asked the trial court to enter a Lone Pine Order (based of the 1986 New Jersey case of Lore v. Lone Pine Corp.) that would require the plaintiffs to present prima facie evidence to support their claims before full discovery could commence.  The companies asserted that a Lone Pine Order was necessary because of the case’s complexity and the significant costs of anticipated discovery.  The trial court entered the Lone Pine Order and then dismissed the case when the plaintiffs were unable to bring forth the prima facie evidence the trial court required.

On appeal last summer, the Court of Appeals agreed with the plaintiffs that Lone Pine Orders were not permitted as a matter of Colorado law, at least before allowing discovery on matters central to a plaintiff’s claims (“as opposed to punitive damages or other secondary matters”).  The Court of Appeals determined that the Lone Pine Order in this case interfered with the truth-seeking purposes of discovery.  Yesterday, the Supreme Court of Colorado agreed to hear the appeal from the Court of Appeals.  We will monitor any case developments.

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