A Denver Court Keeps the Burden Where it Belongs – On the Plaintiffs

A Denver Court Keeps the Burden Where it Belongs – On the Plaintiffs by Laurie K. Miller, Jackson Kelly PLLC, Chemical Industry Update, June 19, 2021
A critical element of every case for injuries is causation. In cases alleging injury from exposure to toxic substances or chemicals, the element of causation is complex and difficult to prove. In these cases, particularly those involving multiple plaintiffs, the costs of defending the actions through discovery and to the point of summary judgment can be enormous. Even in cases where the causation element is weak, a defendant can incur tremendous costs and expenses in the discovery process in a case that is ultimately not provable in terms of causation. This creates a “fear factor” of sorts, where the extreme cost of the defense drives settlement. Trial courts, at the urging of defendants, have tackled this issue in a number of ways. One is the so called “Lone Pine” order. Named for Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Nov. 18, 1986), these orders require plaintiffs to demonstrate a prima facie case of causation before allowing a case to proceed to discovery on all issues. These orders have reached varying results on appeal, with some courts reversing the orders in favor of full discovery before putting plaintiff to proof on the causation issues.

Recently, a district court in Denver, Colorado, granted dismissal of a toxic tort complaint where plaintiffs failed to produce sufficient evidence of causation within the deadlines set by the court’s Modified Case Management Order. Strudley v. Antero Resources, No. 2011CV2218, 2012 WL 1932470 (Co. Dist. Ct. May 9, 2012). As in Lone Pine, the court required the submission of proof of general and specific causation “before full discovery and other procedures were allowed. . . .” The Strudley plaintiffs claimed physical injuries and illness due to alleged contamination of their wells by the defendants’ hydrofracking activities and sought compensatory and medical monitoring damages. The trial court issued a Lone Pine order requiring plaintiffs to submit expert testimony and other evidence to establish the prima facie elements of their claims. Specifically, the plaintiffs were required, within 105 days, to submit the following:
i. Expert opinion(s) provided by way of sworn affidavit(s), with supporting data and facts in the form required by Colo. R. Civ. P. 26(a)(2)(B)(I), that establish for each Plaintiff:
(a) the identity of each hazardous substance from Defendants’ activities to which he or she was exposed and which the Plaintiff claims caused him or her injury;
(b) whether any and each of these substances can cause the type(s) of disease or illness that Plaintiffs claim (general causation);
(c) the dose or other quantitative measurement of the concentration, timing and duration of his/her exposure to each substance;
(d) if other than the Plaintiffs’ residence, the precise location of any exposure;
(e) an identification, by way of reference to a medically recognized diagnosis, of the specific disease or illness from which each Plaintiff allegedly suffers or for which medical monitoring is purportedly necessary; and
(f) a conclusion that such illness was in fact caused by such exposure (specific causation).
ii. Each and every study, report and analysis that contains any finding of contamination on Plaintiffs’ property or at the point of each Plaintiff’s claimed exposure.
iii. A list of the name and last known address and phone number of each health care provider who provided each Plaintiff with health services along with a release authorizing the health care providers to provide Plaintiffs’ and Defendants’ counsel with all of each Plaintiff’s medical records, in the form of Exhibit A hereto, within twenty-one days of the date of this Court’s entry of this Modified Case Management Order.
iv. Identification and quantification of contamination of the Plaintiffs’ real property attributable to Defendants’ operations.
Strudley, 2012 WL 1932407 at *2.
In response to the court’s order, plaintiffs submitted maps, photos, medical records, air and water sample analysis reports and an affidavit of an expert. Notably, plaintiffs’ expert opined that “sufficient environmental and health information exists to merit further substantive discovery,” but offered no “opinion as to whether exposure was a contributing factor to plaintiffs’ alleged injuries or illness.” Id. The plaintiffs’ expert was also only able to temporally associate plaintiffs’ symptoms with the wells beginning production. The court specifically noted “[a] temporal relationship by itself provides no evidence of causation.” Strudley, 2012 WL 1932407 at fn1. The court found plaintiffs submission “wholly lacking in the establishment of causation . . .” and dismissed the action with prejudice. Strudley, 2012 WL 1932407.

The Strudley decision is an important one as it provides a potential road map for the future water contamination/toxic tort cases to come. … The Strudley decision sets a precedent for other courts to use where plaintiffs and/or their experts fail to set forth the causal link needed to show contamination.

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