We think Lone Pine orders are fair and useful tools, and we believe that courts should use them more often, not less. We learned last week that the Colorado Supreme Court disagrees, at least when reviewing the particular order that was presented in Antero Resources Corp. v. Strudley, No. 13SC576, 2015 WL 1813000 (Colo. Apr. 20, 2015). We will get to the Colorado opinion in a minute, but first, what is a Lone Pine order? We would forgive you for asking because the first time we heard the term sometime in the late 1990s, we thought it was a reference to the 1985 blockbuster Back to the Future (fans of Michael J. Fox will immediately understand why).
Alas, Lone Pine refers neither to a time machine nor to a single evergreen standing in a suburban mall parking lot. A Lone Pine order is an order under which the plaintiff in a personal injury lawsuit has to come forward with evidence of a prima facie case, or at least part of a prima facie case, before he or she can proceed further. Such orders are named for a 1986 New Jersey case, Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986), which is most often cited as the progenitor of the species. The idea is that a plaintiff can plead anything, in whatever form, and while TwIqbal brought on a welcome reboot of pleading standards in federal court, we have seen how creative pleading can get cases into discovery even when the claims have no arguable merit.
The rubber hits the road when the plaintiff has to produce evidence sufficient to support his or her claims, and that is where Lone Pine orders come in. They come in various forms, but Lone Pine orders most often require that the plaintiff submit proof of product use or exposure and a certification from a medical expert stating that the use or exposure caused the plaintiff’s injury. Doesn’t sound too onerous, does it? This is the kind of information that plaintiffs should have marshaled even before filing a lawsuit, and many plaintiffs’ attorneys undertake this due diligence before filing, maybe even most. Many do not. In today’s environment of “mass tort” litigation, some attorneys see value in building inventories of filed cases without regard to the merits of the claims, and when that happens, a Lone Pine order can be the way out. Take for example a large group of cases in which taking the plaintiffs’ and prescribing physicians’ depositions resulted in the voluntary dismissal of 25 percent of the cases (this is not a hypothetical). An order requiring plaintiffs to produce expert opinion on medical causation before discovery may have been useful. Because they’re a valuable defense tool, we keep a cheat sheet here of successfully-obtained Lone Pine orders.
So why did the Colorado Supreme Court apply the brakes in Antero Resources Corp. v. Strudley? To start, the case does not involve drugs or medical devices; it involves the natural gas extraction method known poetically as “fracking.” But still, the Lone Pine angle makes it interesting to us. The plaintiffs alleged that the defendant’s drilling resulted in contamination of the air, water, and ground around their home, allegedly causing a variety of physical maladies (rashes, headaches, coughing, and the like). Id. at *2. After the parties made their initial disclosures under Colorado’s rules of civil procedure, the defendant requested and received an order requiring that plaintiffs produce a prima facie showing of each plaintiff’s exposure to toxic chemicals because of the defendant’s activities and evidence of medical causation specific to the toxins for each plaintiff. It also required production of reports, identification of all medical providers, production of medical records, and identification and quantification of alleged contamination to the plaintiff’s real property. Until the plaintiffs made this showing, they would not be allowed to conduct further discovery. Id. at **2-3.
As far as Lone Pine orders go, this one was pretty detailed, but it did not overstep any boundaries that we would impose. All of the information requested was within the control of the plaintiffs—their water, their property, their medical conditions, etc.—and there was no obvious reason why discovery against the defendants would be helpful, let alone necessary, to provide the proof that each plaintiff needed. The problem for the plaintiffs was that they could not establish their prima facie case, resulting in motions to dismiss and for summary judgment, which the trial court granted in reliance on noncompliance with the Lone Pine order. Id. at *3. The claims were built on speculation—there were alleged toxins and myriad alleged injuries, but no evidence connecting the two or that the defendant’s drilling was responsible. It was, in short, the correct result.
The Colorado Supreme Court nevertheless reversed and held that the trial court exceeded its authority under Colorado’s rules. Among other things, the court noted that the case involved only four plaintiffs and did not seem particularly complex. The court had a point: Lone Pine orders are most useful in larger proceedings, and the application of an order as detailed as this one to a relatively straightforward case probably contributed to the court’s feeling that the trial court overstepped.
Regardless, the opinion is noteworthy for its detailed discussion of Lone Pine orders and their purported grounding in Federal Rule of Civil Procedure 16. Thus, at the core of its holding, the Colorado Supreme Court held that Colorado’s version of Rule 16 differed significantly from Federal Rule 16 and, for that reason, it could not support the trial court’s Lone Pine order. Id. at **4-7. As the court summed it up, “Together with amended Rule 26, our amended Rule 16 provides a tool for the court to manage discovery while efficiently advancing the litigation toward resolution, reflecting the development away from the seemingly unrestricted discovery that courts often endorsed in the past. Rule 16 does not, however, authorize a trial court to condition discovery upon the plaintiff establishing a prima facie case. In sum, when revising [Colorado] Rule 16 in 2002, we did not pattern our rule on Fed. R. Civ. P. 16(c) . . . .”
So a trial court in Colorado cannot require a prima facie showing under Colorado Rule of Civil Procedure 16 in the way that this trial court attempted. Okay, but we still have questions. First, the Court’s careful parsing of the differences between Colorado Rule 16 and Federal Rule 16 is curious because the original Lone Pine order that started everything was decided in New Jersey state court, not in federal court, and the order was not based on the Federal Rules. We scratch our heads then in trying to understand why the precise wording of Rule 16 was dispositive. Maybe the parties briefed it that way; we don’t know.
Second, the Colorado Supreme Court rejected the order under Rule 16, but went on to inform trial judges that there were many other Colorado Rules that they could use “to dispose of non-meritorious claim and issue sanctions for abuses.” Id. at *8. The court called out Rules 11, 12 and 56, as well as a number of rules governing discovery. But the motion that the trial court granted was an alternative motion to dismiss or for summary judgment, i.e., the trial court used Rules 12 and 56. Moreover, when challenged with a summary judgment motion, the plaintiffs had the opportunity to argue that they needed discovery under Rule 56(f) to oppose the motion. It seems to us that an argument could be made that the trial court toed the Colorado’s Supreme Court’s line.
In the end, the practical impact of Antero Resources is that Colorado trial courts will be less inclined to issue Lone Pine orders, although case management orders requiring some early proof will not necessarily go away. One article we read suggested that fracking defendants will now try to get into federal court, but we expect they were doing that anyway, so we don’t see a big change there. Our takeaway is that Lone Pine orders are useful, but that if done in a way that appears overly aggressive, some courts will view them with a jaundiced eye. We will keep asking for them when the need arises.