Strudley v. Antero Res. Corp.

• Decision Date: 03 July 2013
• Docket Number: Court of Appeals No. 12CA1251
• Citation: 350 P.3d 874,2013 COA 106
• Parties: William G. STRUDLEY and Beth E. Strudley, individually and as the parents and natural guardians of William Strudley and Charles Strudley, both minors, Plaintiffs–Appellants, v. ANTERO RESOURCES CORPORATION, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, Defendants–Appellees.
• Court: Colorado Court of Appeals

350 P.3d 874

2013 COA 106

William G. STRUDLEY and Beth E. Strudley, individually and as the parents and natural guardians of William Strudley and Charles Strudley, both minors, Plaintiffs–Appellants

v.ANTERO RESOURCES CORPORATION, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, Defendants–Appellees.

Court of Appeals No. 12CA1251

Colorado Court of Appeals, Div. I.

Announced July 3, 2013

Thomas | Greenshaft, LLP, Peter W. Thomas, Aspen, Colorado; Frascona, Joiner, Goodman and Greenstein, P.C., Corey T. Zurbuch, Boulder, Colorado; Napoli Bern Ripka Shkolnik & Assoc., LLP, Marc Jay Bern, Tate J. Kunkle, New York, New York, for Plaintiffs–Appellants

Hogan Lovells U.S. LLP, Daniel J. Dunn, Andrew C. Lillie, David A. DeMarco, Denver, Colorado; Vinson & Elkins LLP, Robert M. Schick, James D. Thompson, III, Houston, Texas, for Defendants–Appellees Antero Resources Corporation and Antero Resources Piceance Corporation

Davis Graham & Stubbs LLP, Gail L. Wurtzler, Adam S. Cohen, Shannon Wells Stevenson, Denver, Colorado, for Defendant–Appellee Calfrac Well Services Corporation

Burns Figa & Will, P.C., Matthew B. Dillman, Sarah M. Shechter, Greenwood Village, Colorado, for Defendant–Appellee Frontier Drilling LLC

Opinion

Opinion by JUDGE TAUBMAN

¶ 1 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 (collectively “the Strudleys”), appeal the trial court's orders requiring them to present prima facie evidence to support their claims prior to the initiation of full discovery, and dismissing their claims with prejudice for not meeting this burden.

¶ 2 This case presents an issue of first impression in Colorado regarding whether a trial court in a toxic tort case can enter an order requiring plaintiffs to present prima facie evidence supporting their claims after initial disclosures, but before other discovery commences, or risk having their case dismissed. We conclude that such orders are prohibited under Colorado law. Accordingly, we reverse the trial court's orders and remand the case to the trial court.

I. Background

¶ 3 The Strudleys sued defendants, Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corp., and Frontier Drilling LLC (collectively “the 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 within close proximity to their home. The Strudleys also requested the establishment of a medical monitoring trust.

¶ 4 The Strudleys' complaint alleged that the companies committed tortious acts when pollutants from their drilling activities at three well sites contaminated the air, water, and ground near and around their home, and that those acts caused property damage and “personal and physical injuries, known and unknown.” The complaint enumerated certain chemicals and contaminants that allegedly polluted the Strudleys' property, including hydrogen sulfide, hexane, n-heptane, toluene, propane, isobutene, n-butane, isopentane, n-pentane, and other pollutants. However, it did not identify which of these pollutants caused the alleged injuries.

¶ 5 The Strudleys moved out of their house in January 2011. According to the complaint, they “were forced to flee and abandon their home because of the toxic and hazardous contamination caused by [the companies].” An affidavit submitted by William G. Strudley in opposition to the companies' summary judgment motion¹ stated that while they were still living in their home, the Strudleys suffered “a myriad of symptoms from the air contamination, including but not limited to burning eyes and throat, skin rashes, constant headaches, nausea, terrible bouts of non-stop coughing and continual bloody noses.” The affidavit further stated that after the Strudleys moved to a different residence, these symptoms subsided. Finally, the affidavit stated that the Strudleys' well water was visibly polluted and emitted a bad odor. A study conducted on the well water, one year after the Strudleys moved away, indicated pollutants were present in the well water above recommended levels.

¶ 6 The parties filed initial disclosures pursuant to C.R.C.P. 26. However, shortly thereafter, the companies moved for a modified case management order pursuant to C.R.C.P. 16(c). Specifically, the companies requested the trial court to enter an order similar to that in Lore v. Lone Pine Corp., 1986 WL 637507 (N.J.Super. Ct. Law Div. Nov. 18, 1986) (unpublished opinion), which required the Strudleys to present prima facie evidence to support their claims before full discovery could commence.² In connection with their motion, the companies submitted evidence that they alleged contradicted the Strudleys' claims, including a report conducted by the Colorado Oil and Gas Conservation Commission (COGCC) that concluded that there were “no indications of any oil & gas related impacts to [the Strudleys'] well,” based on a water sample taken on November 30, 2010. The companies further asserted that a Lone Pine order was necessary because the case was complex and would “entail significant discovery at substantial cost to the parties.”

¶ 7 Over the Strudleys' objection, the trial court granted the companies' request and issued a modified case management order requiring the Strudleys to provide, within 105 days:

i. Expert opinion(s) provided by way of sworn affidavit(s), with supporting data and facts in the form required by [C.R.C.P.] 26(a)(2)(B)(I), that establish for each Plaintiff (a) the identity of each hazardous substance from Defendants' activities to which he or she was exposed and which the Plaintiff claims caused him or her injury; (b) whether any and each of these substances can cause the type(s) of disease or illness that Plaintiffs claim (general causation); (c) the dose or other quantitative measurement of the concentration, timing and duration of his/her exposure to each substance; (d) if other than the Plaintiffs' residence, the precise location of any exposure; (e) an identification, by way of reference to a medically recognized diagnosis, of the specific disease or illness from which each Plaintiff allegedly suffers or for which medical monitoring is purportedly necessary; and (f) a conclusion that such illness was in fact caused by such exposure (specific causation).

ii. Each and every study, report and analysis that contains any finding of contamination on Plaintiffs' property or at the point of each Plaintiff's claimed exposure.

iii. A list of the name and last known address and phone number of each health care provider who provided each Plaintiff with health services along with a release authorizing the health care providers to provide Plaintiffs' and Defendants' counsel with all of each Plaintiff's medical records, in the form of Exhibit A hereto, within twenty-one days of the date of this Court's entry of this Modified Case Management Order.

iv. Identification and quantification of contamination of the Plaintiffs' real property attributable to Defendants' operations.

¶ 8 In response to the order, the Strudleys provided the court with certain information including a letter from John G. Huntington, Ph.D., which concluded that a test of the well water on the Strudleys' property conducted on December 7, 2011 demonstrated chemical levels above recommended guidelines. The letter concluded that “these results could be consistent with contamination from gas well chemicals or production waters, although that conclusion cannot be reached unequivocally from the chemical data alone.” The Strudleys also submitted an affidavit by Thomas L. Kurt, MD, MPH. Dr. Kurt stated that he never physically examined the Strudleys, but had spoken with William G. and Beth E. Strudley on the phone regarding their symptoms and had observed color photographs of their son's skin rash and bloody nose. Dr. Kurt also examined test results regarding the water quality of the Strudleys' well. Based on this information, Dr. Kurt concluded that

sufficient environmental exposure and health information exists to merit further substantive discovery to include (1) modeling of ambient plumes of fugitive emissions from the three wellhead areas ... (2) ... further information of compliance with public environmental safety ... (3) a search for microseismic findings for vertical fault fracturing among the three wells described in the complaint ... (4) a review of company-performed ambient air sampling during the hydraulic fracking process and afterward (5) determining what quality testing inspections were performed for cementing leaks allowing vertical pressure driven migration (6) evaluation of the skin rashes in the color photographs with a dermatologic history-taking ... and (7) clinical testing by a neuropsychologist for neuropsychological environmental injury.

¶ 9 The Strudleys provided no expert opinion that concluded that the harm to their property or their physical injuries were directly caused by the companies' conduct. Nor did the Strudleys present expert evidence documenting all of their physical injuries through medical examination.

¶ 10 Based on the Strudleys' submissions, the companies moved to dismiss the Strudleys' claims pursuant to C.R.C.P. 37, or, in the alternative, for summary judgment. The Strudleys responded, asserting that their evidentiary submissions complied with the trial court's Lone Pine order, and therefore, dismissal under C.R.C.P. 37 was not appropriate. They further asserted that issues of material fact existed that precluded a grant of summary judgment.

¶ 11 The trial court dismissed all of the Strudleys' claims with prejudice, finding that the Strudleys failed to prove a prima facie case, specifically in relation to causation. The court did not cite any rule of civil procedure under which it...