Important Developments from Two Influential Fracturing Litigation Jurisdictions by Michael Lisak, April 16, 2014, Sidley Austin LLP
Texas Trial
A Dallas jury is now being asked to award a Texas family $9 million in a “nuisance suit” against one remaining defendant – Aruba Petroleum, Inc. (Parr, et al. v. Aruba Petroleum Inc., CC-11-01650-E, in the County Court at Law No. 5 of Dallas County). The Parr family alleges that Aruba’s fracturing of the Barnett Shale Deposit exposed them to hazardous gases, chemicals and industrial waste – causing various illnesses. The Parrs settled with other defendants while Halliburton won summary judgment before trial. Aruba obtained the dismissal of the Parrs’ negligence claims, also via summary judgment. As such, the jury will now focus upon theories of trespass and nuisance to determine potential liability. In another important pre-trial holding, Judge Mark Greenberg ruled that the Parrs could not recover any damages for personal injury claims requiring expert witness testimony.
What is perhaps most interesting for those watching this early trial from a key fracturing jurisdiction is how the jury approaches claimed damages, assuming Aruba is even found liable. For example, the Parrs must prove not only that their claimed injuries did not pre-exist Aruba’s drilling, but also that they were caused by Aruba’s wells and not other companies’ wells which also surround the Parrs’ property. The Parrs must carry these significant burdens not only without the aid of expert testimony as to the causation of injuries, but also in the face of Aruba’s argument that their wells’ emissions were within the applicable air quality limits. While most other jurisdictions would permit, if not require, litigants to carry their specific medical causation burden with the support of expert testimony, the following two issues will likely be important considerations in future cases throughout the country: (1) how does a litigant prove claimed damages are from a particular defendants’ wells when litigants’ properties tend to be situated in an area surrounded by other companies’ active wells; and (2) how much protection, if any, will compliance with local environmental regulations afford defendants, at least within the context of trespass and nuisance theories of liability (as opposed to negligence where they would be admitted as evidence of but not per se compliance with reasonable care). By the time of our next report, we should know the answers to these two questions, and perhaps begin to see how this particular Texas jury’s answers might affect other future cases.
Colorado Constraint
Over the past several years, defendants in toxic tort and product liability lawsuits have achieved increasing success in convincing courts to enter Lone Pine orders as a case management tool to cull significant numbers of cases before undertaking time-consuming and expensive pre-trial fact and expert discovery. A Lone Pine order, named after a leading New Jersey case, typically requires a plaintiff to put forward prima facie evidence of specific causation for claimed injuries before full-blown discovery from a defendant is permitted. If a plaintiff fails to comply, the case is dismissed. In contrast, if sufficient evidence is proffered “normal” discovery activities take place, although plaintiff still carries his or her evidentiary burden as to causation. Defendants have a better chance of persuading courts to employ this tool in cases which would involve drawn-out and expensive discovery typically involving complicated and unsettled scientific and medical issues. As such, fracturing defendants have understandably pursued Lone Pine orders with great vigor.
Colorado’s Supreme Court just announced that it would review an appellate court’s ruling in a fracturing case forbidding the use of a Lone Pine order. The underlying case involved claims by Mr. William Strudley that several defendants caused him and his family to become sick from their drilling activities near his property. The trial court entered a Lone Pine order which led to the eventual dismissal of the case after the Strudleys were unable to comply with its requirement that they proffer sufficient prima facie evidence that their claimed injuries were caused by defendants’ fracturing. The appellate court resurrected the case in July of 2013 by ruling that the trial court erred when it entered the Lone Pine order.
Defendants convinced the Supreme Court to hear this matter by arguing that the appellate court’s ruling not only impermissibly inhibited trial courts’ abilities to tailor discovery to individual cases, but also was inconsistent with the Supreme Court’s general endorsement of trial courts’ use of early and active case management strategies. In accepting the matter for its consideration, the Supreme Court announced it address two issues: (1) whether a trial court is barred as a matter of law from entering case management orders requiring a plaintiff to produce evidence essential to his or her claims after initial disclosures but before further discovery (i.e., a Lone Pine order); and (2) assuming such an order is not barred as a matter of law, whether the trial court in this case acted within its discretion in entering and enforcing the order at issue. Along with Texas and Pennsylvania, Colorado is one of the most influential fracturing jurisdictions. As such, the Supreme Court’s eventual holding on these important issues will not only affect Colorado’s future docket, but will likely have a significant extra-jurisdictional impact. [Emphasis added]
United States: Colorado Supreme Court Grants To Consider Use Of Lone Pine Orders In Toxic Tort Case Involving Hydraulic Fracturing by Paul S. Enockson, April 15, 2014, Mondaq
On Monday, the Colorado Supreme Court granted a Petition for Writ of Certiorari in Antero Resources, et al. v. Strudley, et al. The Strudley case involves claims relating to alleged injuries from natural gas drilling operations near the Strudley’s home in Silt, Colorado. The Strudley’s case was dismissed by the district court after it entered a Lone Pine Order requiring the Strudleys to present prima facie evidence in support of their claims. When they failed to do so, the district court dismissed the case with prejudice. The Colorado Court of Appeals reversed, finding that Lone Pine Order were prohibited as a matter of law in Colorado.
The Colorado Supreme Court will now consider two issues. First, whether a district court in Colorado is barred as a matter of law from entering a modified case management order requiring a plaintiff to produce evidence essential to his or her claims after initial disclosures but before further discovery is allowed. Second, assuming such a modified case management order is allowed, whether the district court acted within its discretion in entering and enforcing such an order.
The Strudley case has garnered significant attention. A number of interested parties, including the Colorado Petroleum Association, filed amicus briefs asking the Court to hear the case. [Emphasis added]
[Refer also to:
Strudleys win appeal in drilling and frac poisoning case
Colorado Family Sues Oil And Gas Drilling Firms
Shale Development and Fracking Litigation Trends
A Denver Court Keeps the Burden Where it Belongs – On the Plaintiffs
Judge tosses suit claiming health harm by Antero
9/11 law firm set to announce contamination suit against Colorado gas drilling company