June 19, 2019

Colorado Supreme Court: Lone Pine Orders Not Allowable Under Colorado Rules of Civil Procedure

The Colorado Supreme Court issued its opinion in Antero Resources Corp. v. Strudley on Monday, April 20, 2015.

CRCP 16—Lone Pine Orders.

In this decision, the Supreme Court granted certiorari to consider whether a specialized type of modified case management order known as a “Lone Pine order” is authorized under the Colorado Rules of Civil Procedure. After the initial exchange of Rule 26 disclosures, Antero Resources Corporation asked the trial court to enter a modified case management order requiring the Strudleys to present prima facieevidence that they suffered injuries attributable to the natural gas drilling operations of Antero Resources. The trial court granted the motion and issued a Lone Pine order directing the Strudleys to provide prima facie evidence to support their allegations of exposure, injury, and causation before the court would allow full discovery. The trial court determined that the Strudleys failed to present sufficient evidence and dismissed their case with prejudice. The court of appeals reversed, concluding that, as a matter of first impression, Lone Pine orders “are not permitted as a matter of Colorado law.”

The Court affirmed the court of appeals’ judgment. The Court held that the Colorado Rules of Civil Procedure do not allow a trial court to issue a modified case management order that requires a plaintiff to present prima facie evidence in support of a claim before a plaintiff can exercise its full rights of discovery under the Colorado Rules.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Opinion Amended Upon Request for Rehearing

The Tenth Circuit Court of Appeals released its amended opinion in Bayless v. United States on Friday, September 12, 2014. In this case, the United States filed a petition for panel rehearing, which was granted in part. Modifications were made to pages 2 and 23 of the published opinion. The request for rehearing was otherwise denied. To read the summary of the original opinion, click here.

Tenth Circuit: Statute of Limitations Began to Run when Formal Diagnosis Received

The Tenth Circuit Court of Appeals issued its opinion in Bayless v. United States on Monday, April 28, 2014.

In 1997, Carolyn Bayless took a seasonal position with the Utah Division of Wildlife, where she traveled to remote locations around Utah to conduct various wildlife studies. Unbeknownst to her at the time, the U.S. Army was conducting chemical and biological weapons testing near two of the sites Bayless visited for the wildlife studies. In October 1997, approximately one month after completing her seasonal position, Bayless started experiencing episodic blurred vision and lip numbness. She sought medical treatment from several providers but did not find a reason for the symptoms. Her symptoms continued to worsen and she continued to seek medical treatment, but no doctor could find a reason for her neurological symptoms. After years of worsening symptoms and treatment trials, Bayless began to tell doctors that she believed her symptoms could have been caused by exposure to toxins she had experienced during her work with the Utah Department of Wildlife. In 2005, Bayless became convinced that her symptoms were caused by exposure to sarin nerve gas and other biological weapons that had been tested at the Army facilities near the location of Bayless’ work in 1997. In 2007, Dr. William Rea of the Environmental Health Center in Dallas, Texas, diagnosed Bayless with several conditions related to exposure to toxic chemicals. He reported that he “firmly believe[d] that in all medical probability this patient’s incapacitation is a result of her exposure to pesticides, heavy metals, molds, and mycotoxins in the workplace.”

Bayless filed an administrative claim on January 31, 2008, alleging that the activities of United States Army on its Dugway facility caused her to sustain permanent neurological and other injuries. On May 29, 2009, Bayless filed a complaint under the Federal Tort Claims Act (FTCA) in the United States District Court for the District of Utah. On December 2, 2011, the government moved for summary judgment to dismiss Bayless’ complaint for lack of subject-matter jurisdiction. The government argued that Bayless failed to present her administrative claim within two years of the accrual of that claim pursuant to 28 U.S.C. § 2401(b). After hearing argument on April 19, 2012, the district court granted the motion on May 17, 2012. The district court concluded that Bayless acquired enough knowledge by May 2005 for her claim to begin to accrue and also that her claim was not protected by the doctrine of equitable tolling.

The Tenth Circuit addressed the question of when the two-year statute of limitations under the FTCA began to run. Although Bayless’ symptoms began in 1997, she did not know of the existence of the Army testing sites until 2005, and was not formally diagnosed by a physician until 2007, despite numerous medical exams and tests. The Tenth Circuit held that the formal diagnosis began the statute of limitations and therefore her claim was timely. The opinion of the district court was reversed and remanded.

Colorado Supreme Court News: Pretrial Discovery Process Under Review

Stuart-StullerBy Stuart Stuller

On April 7, 2014, the Colorado Supreme Court agreed to review a case that will be watched closely by the legal community. The issue before the court does not concern how cases are to be decided, nor how cases will be tried, but the authority of a trial court to control the discovery process that precedes trial.

The case, Antero Resources Corp., et al v. Strudley, case no. 13SC576, will address whether the Colorado Rules of Civil Procedure permit trial courts to issue so-called Lone Pine orders that are sometimes used in large and complex personal injury cases often involving environmental contamination where there is some doubt that the plaintiffs can prove contamination and causation.

The case involves claims by a family alleging that nearby natural gas operations contaminated their well water, causing them medical harm. Prior to full-blown discovery, the phase of litigation in which parties demand records, conduct depositions and inspections, and otherwise gather information, the trial court required the family to submit evidence showing that their well was contaminated by pollutants from the defendants’ operations, that scientific research links the alleged contaminants to the maladies suffered by the family, and that the contaminants did cause such harm to the family.

After the family responded, the defendants argued that the materials submitted by the family did not meet the threshold showing required by the court’s order. The court agreed and dismissed the case. The Colorado Court of Appeals reversed, holding that the trial court’s order was inconsistent with the Colorado Rules of Civil Procedure.

Questions related to pretrial discovery are enormously significant within the legal community because the cost of conducting discovery can be substantial. Defendants, such as the companies here, contend that the prospect of large discovery costs is often used as leverage to settle cases that are not meritorious. Conversely, plaintiffs and the Colorado Court of Appeals contend that the ordinary rules of civil procedure are sufficient to prevent such scenarios. Trial courts, charged with managing cases in a manner that protects the integrity of the judicial process, are caught in the middle.

The Colorado Defense Lawyers Association, the Colorado Civil Justice League and the American Petroleum Institute filed amicus curiae (friend of the court) briefs urging the Colorado Supreme Court to review the court of appeals’ decision. Now that the court has agreed to address the issue, organizations on both sides of the issue are expected to participate.

Stuart Stuller focuses on appellate practice, litigation, constitutional law, employment discrimination and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at sstuller@celaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Court of Appeals: Trial Court May Not Require Prima Facie Showing of Proof Prior to Commencing Discovery

The Colorado Court of Appeals issued its opinion in Strudley v. Antero Resources Corp. on Wednesday, July 3, 2013.

Toxic-Tort Case—Modified Case Management Order—Prima Facie Evidence—Discovery.

In this toxic-tort case, plaintiffs William G. Strudley and Beth E. Strudley, individually and as the parents and guardians of William Strudley and Charles Strudley, appealed the trial court’s orders requiring them to present prima facie evidence to support their claims before the initiation of full discovery, and dismissing their claims with prejudice for not meeting this burden. The orders were reversed and the case was remanded with directions.

The Strudleys sued defendants, Antero Resources Corporation and three other companies, claiming negligence, negligence per se, nuisance, strict liability, and trespass related to physical and property injuries allegedly caused by the companies’ natural gas drilling operations with proximity to their home.

The Strudleys asserted that the trial court erred by entering a modified case management order, which required the Strudleys to present prima facie evidence to support their claims before full discovery could commence, because such orders are not permitted as a matter of Colorado law. A trial court may not require a showing of a prima facie case before allowing discovery on matters central to a plaintiff’s claims. Here, although the initial disclosures provided the Strudleys with some information related to their claims, the disclosed information was insufficient to enable them to respond fully to the modified case management order. The modified case management order, therefore, interfered with the full truth-seeking purpose of discovery regarding Strudleys’ claims. Thus, the trial court erred as a matter of law when it entered the modified case management order.

Summary and full case available here.