On July 3, 2013, the Colorado Court of Appeals held that the plaintiffs in a toxic tort case cannot be required to present prima facie evidence to support their claims prior to the initiation of full discovery.  In Strudley v. Antero Resources Corp., the Colorado Court of Appeals reversed a state district court opinion that held such evidence must be presented before the Strudleyscould obtain full discovery relating to their claims that they suffered injuries as a result of hydraulic fracturing operations. 

The Strudley case involves claims relating to alleged injuries from natural gas drilling operations near the Strudleys' home in Silt, Colorado.  According to the Strudleys' complaint, the defendants' drilling operations, which including hydraulic fracturing, contaminated the air, water and ground around their home.  Shortly after initial disclosures were completed, but before full discovery was underway, the defendants asked the trial court to issue an order similar to the order entered in Lore v. Lone Pine Corp., a New Jersey case in which the trial court required a presentation of prima facie evidence in support of the alleged claims before full discovery could commence.  District Court Judge Ann Frick agreed with the defendants, and ordered the plaintiffs to present prima facie evidence in support of their claims.  When they failed to do so, Judge Frick dismissed the Strudleys' claims with prejudice. 

The Colorado Court of Appeals reversed Judge Frick.  According to the Colorado Court of Appeals, "Lone Pine" orders are prohibited under Colorado law.  The Court reasoned that no rule authorized the issuance of such orders in Colorado and that Colorado law precludes a trial court from requiring a showing of a prima facie case before allowing discovery on matters central to a plaintiff's claims. 

While the Strudley decision is a roadblock to the early dismissal of tort cases stemming from hydraulic fracturing operations in Colorado, such cases may still be subject to dismissal once sufficient discovery has been completed.  The oil and gas industry now must focus on attacking these cases at the summary judgment stage.

The time allowed under Colorado law to ask the Colorado Supreme Court to review the Court of Appeal's decision has not yet expired.  A copy of the Court of Appeal's opinion can be found here:

We will continue to monitor litigation developments concerning fracking and provide timely updates on the North American Shale Blog.

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