Environmental Plaintiffs Get Huge Victory When Colorado Appeals Court Reinstates Their Case and Rejects “Lone Pine“ Dismissals

Denver, Colorado and New York, NY: for immediate release: Lead plaintiffs’ counsel Marc Jay Bern, who last week received a momentous decision from the Court of Appeals for the 11th Circuit remanding two Costa Concordia litigations back to the Florida State Courts, has received another positive outcome from the Colorado Court of Appeals.  In a case of first impression, the Colorado Court has reversed a trial court’s Order dismissing Strudley v. Antero Resources Corporation, Denver District Court Docket No.: 11CV2218, a toxic tort litigation, finding that the trial court erred in requiring the plaintiffs to present credible and admissible (“prima facie”) evidence to support their claims before the initiation of full discovery upon pain of dismissal. The Strudley plaintiffs alleged that defendants’ natural gas drilling operations had contaminated the air, water and land near and around their home, causing physical injuries and property damage so severe that they were forced to move. A copy of the decision can be obtained on the Court of Appeals’ website at: http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf

The trial court’s decision, known among attorneys and courts as a “Lone Pine” Order, based on a similar holding in Lore v Lone Pine Corp., 1986 WL 637507 (N.J. Super. Ct., 1986), was entered upon the defendants’ assertion that the Strudley case was complex and would “entail significant discovery at substantial cost to the parties.” In reversing, the Court of Appeals expressly held that such “Lone Pine Orders” were not permitted as a matter of Colorado Law.  Supporting its decision, the Court of Appeals relied in part on prior case law in Colorado and other states including Roth v. Cabot Oil & Gas Corp., 287 F.R.D. 293, 297 (M.D. Pa. 2012), another matter in which a Lone Pine issue was successfully litigated by attorney Bern’s firm, Napoli Bern Ripka Shkolnik & Associates, LLP.  

The Roth court held that Lone Pine Orders are improper where existing statutes, rules and procedures provide sufficient protection against frivolous or unsupported claims and burdensome discovery.  In Strudley, the Colorado Court expressed its agreement with Roth that Lone Pine orders should be disfavored when they occur early in the litigation and thereby deprive the party opposing the motion of the benefit of obtaining discovery to support their claims.  The Strudley Court held that the Order entered by the trial court “interfered with the full truth seeking purpose of discovery”. 

Asked to comment on the Strudley decision, Mr. Bern said “Obviously, we are thrilled that our clients will now have a chance to obtain the discovery necessary to support their claims and as a result we trust they will ultimately have their day in court.”

Contact Information

Marc Jay Bern

Senior Partner

Napoli Bern Ripka Shkolnik & Assoc., LLP

(1) (516) 361-4909

mjbern@napolibern.com