Court Dismisses Toxic Tort Related Fracking Claim On Lack of Causation Grounds

A recent Decision out of Colorado has set an early and important precedent in toxic tort-related hydro-fracking litigation regarding expert standards necessary for plaintiffs to establish a prima facie case.  As the decision reflects, a plaintiff’s failure to show both general and specific causation early in the litigation can result in early dismissal. 

 In Strudley v. Antero Resources Corp., 2011 CV 2218 (Colo. D.Ct. Denver County, May 9, 2012) plaintiffs, property owners whose land had been part of natural gas extraction, claimed that they suffered “health injuries” for which they associated with fracking.  Specifically, they claimed that “hazardous gases, chemicals, and industrial wastes,” contaminated their well water and consequently injured plaintiffs.  The plaintiffs also included nuisance and medical monitoring claims.

 In lieu of prolonged, expensive discovery, Judge Ann Frick invoked the use of aLone Pine order– a case management order used in complex toxic tort cases that require an early showing of causation.   Thereafter, the defendants moved for summary judgment.  In opposition to summary judgment, the plaintiffs submitted, among other things, an affidavit from their experts who essentially opined that they could not offer an opinion on causation until he had more discovery.   The defendants, however, produced compelling evidence to show that the Colorado Oil and Gas Conservation Commission had investigated plaintiff’s claims and found no contamination from the gas operations and that the defendants otherwise complied with all applicable regulations and standards.

 The Court found that the expert opinions wholly failed to meet both general and specific causation.  Plaintiffs failed to establish, for example, the standards for what constitutes a dangerous level of contaminants in drinking water or whether any causal link exists between their studies and the plaintiffs’ injuries. 

 Though the evidence shows existence of certain gases and compounds in both the air and water of Plaintiffs’ Silt home, there is neitgher sufficient data nor expert analysis stating with any level of possibility that a causal connection does in fact exist between Plaintiffs’ injuries and Plaintiffs’ exposure to Defendants drilling activities.

Consequently, the Court dismissed the action, which is certainly going to be appealed.

The impact from this decision is yet to be determined.  However, there are similar medical monitoring and nuisance-based fracking lawsuits pending throughout the country.  Judge Frick’s decision is the first to squarely address some of the complex causation issues in fracking litigation.  Therefore, this decision will likely have precedential value for those similar cases.  Defendants in those litigations may also seek to have the court direct similar Lone Pine orders.

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