With increasing frequency, courts around the country are using their inherent power to control the proceedings before them in order to structure environmental and toxic tort cases in such a way as to reduce, as much as possible, cases to their essence and, more importantly, ensure that the time and resources of parties are not needlessly wasted on discovery or lengthy proceedings when spurious claims are brought. And that’s exactly what has happened in the case of Strudley v. Antero Resources Corp., No. 2011 CV 2218 (Denver Co. Dist. Court May 9, 2012), where the Court dismissed plaintiffs’ claims against companies involved in drilling natural gas wells when the plaintiffs failed to show, prior to the initiation of discovery, that there was a prima facie basis for associating their personal injury claims with the defendants’ activities.
The case was brought by the Strudley family, who contended that they had suffered various adverse health effects such as nose bleeds and sinus congestion as a result of contamination of their groundwater by the chemicals used in the defendants’ hydraulic fracturing process – a claim that has been made in numerous venues and one which courts are likely to see many more of as the business of hydraulic fracturing continues to grow. Unfortunately for the Strudleys, however, their claims had already been investigated by the Colorado Oild and Gas Conservation Commission, which had concluded that their water supply had not, in fact, been affected by the drilling. This caused the Court to enter a case management order requiring the Strudleys, as an initial step in their litigation, to submit expert opinions, scientific testing results, and personal medical information sufficient to set forth a prima facie case, and in particular, evidence of causation. The Court patterned its Case Management Order after the order issued more than twenty-five years earlier in Lore v. Lone Pine Corp., No. L-33606-85 (N.J. Sup. Cr. Nov. 18, 1986), another case in which the plaintiffs’ case was dismissed for failure to establish causation early in the case.
In analyzing the evidence before it, the Court noted that there was no expert opinion that the contaminant levels were high enough to cause injury and that even the Strudleys’ own expert would not attribute the Plaintiffs’ alleged injuries to the water supply. In fact, the expert was not even provided with the results of water testing done before the Strudleys moved out of their home (allegedly because of the contaminated water). Rather, the best that the Strudleys could muster were reports that stated that their alleged injuries “could be consistent with” well water contamination and that their symptoms appeared to be temporally related to the drilling, all of which, the Strudleys argued, merited discovery. This was not enough as “Plaintiffs’ requested march towards discovery without some adequate proof of causation of injury [was] precisely what the [Case Management Order] was meant to curtail.”
While some may argue that this type of early intervention unfairly prejudices plaintiffs who may lack the significant resources often necessary to engage in sophisticated testing and the preparation of extensive expert reports, it is perhaps time that courts begin to evaluate the merits of such cases early in the litigation, as was done here. The burden and costs of defense of toxic tort cases, as well as the risks always inherent in litigation, too often back defendants into a corner where settlement is the least costly, although not necessarily most just, result.