ANTERO RESOURCES CORPORATION, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling LLC, Petitioners v. William G. STRUDLEY and Beth E. Strudley, individually, and as the parents and natural guardians of William Strudley, a minor, and Charles Strudley, a minor, Respondents
Supreme Court Case No. 13SC576
Supreme Court of Colorado.
April 20, 2015
2015 CO 26 | 149
Hogan Lovells US LLP, Daniel J. Dunn, Andrew C. Lillie, David A. DeMarco, Denver, Colorado, Hogan Lovells US LLP, Catherine E. Stetson, Washington, DC, Vinson & Elkins LLP, James D. Thompson III, Marie R. Yeates, Sandra G. Rodriguez, Houston, Texas, Attorneys for Petitioners Antero Resources Corporation and Antero Resources Piceance Corporation.
Burns Figa & Will, P.C., Matthew B. Dillman, Sarah M. Shechter, Greenwood Village, Colorado, Attorneys for Petitioner Frontier Drilling LLC.
Davis Graham & Stubbs, LLP, Gail L. Wurtzler, Shannon Wells Stevenson, Denver, Colorado, Attorneys for Petitioner Calfrac Well Services Corp.
Thomas Genshaft 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, New York, New York, Attorneys for Respondents.
Fennemore Craig, P.C., Terry Cipoletti, Denver, Colorado, Hollingsworth LLP, Richard O. Faulk, Washington, D.C., Attorneys for Amici Curiae National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, American Chemistry Council, American Coatings Association, Independent Petroleum Association of America, and Metals Service Center Institute.
Snell & Wilmer L.L.P., Lee Mickus, Jessica E. Yates, Denver, Colorado, Attorneys for Amici Curiae Colorado Civil Justice League, Denver Metro Chamber of Commerce, Chamber of Commerce of the United States of America, Coalition for Litigation Justice, Inc., and American Tort Reform Association.
Steptoe & Johnson LLP, Mark P. Fitzsimmons, Jared R. Butcher, Washington, D.C., Steptoe & Johnson LLP, Bennett Evan Cooper, Phoenix, Arizona, Attorneys for Amicus Curiae American Petroleum Institute.
Greenberg Traurig, LLP, Christopher J. Neumann, Gregory R. Tan, Harriet A. McConnell, Denver, Colorado, Attorneys for Amicus Curiae Colorado Petroleum Association.
Ruebel & Quillen, LLC, Casey A. Quillen, Jeffrey C. Ruebel, Westminster, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.
Klibaner Law Firm P.C., David A. Klibaner, Denver, Colorado, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.
¶1 We granted certiorari to consider whether a specialized type of modified case management order known as a “Lone Pine order” is authorized under the Colorado Rules of Civil Procedure and, if so, to assess whether the trial court abused its discretion by entering such an order in this case.1 Lone Pine orders developed from an unpublished opinion of the Superior Court of New Jersey, Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986). Entered after initial disclosures but before discovery, Lone Pine orders require plaintiffs in toxic tort cases to provide evidence sufficient to establish a prima facie case of injury, exposure, and causation, or else face dismissal of their claims. Federal Rule of Civil Procedure 16(c) authorizes their use in complex federal cases to reduce potential burdens on defendants, particularly in mass tort litigation. See, e.g., Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
¶2 After the initial exchange of
¶3 We hold that Colorado‘s Rules of Civil Procedure do not allow a trial court to issue a modified case management order, such as a Lone Pine order, that requires a plaintiff to present prima facie evidence in support of a claim before a plaintiff can exercise its full rights of discovery under the Colorado Rules. Although the comments to
I.
¶4 William G. Strudley and Beth E. Strudley, individually, and as the parents of two minor children, sued Antero Resources, claiming they suffered physical injuries and property damage due to Antero Resources’ natural gas drilling operations near their home. Specifically, the Strudleys allege that pollutants from the drilling site contaminated the air, water, and ground near their home, causing them to suffer burning eyes and throats, rashes, headaches, nausea, coughing, and bloody noses. Initial construction of the drilling operations began in August 2010, and the Strudleys assert that the pollution forced the family to move shortly thereafter, in January 2011. While the complaint identified several chemicals that allegedly polluted the property, it did not causally connect specific chemicals to actual injuries.
¶5 Both parties exchanged initial disclosures as required by the presumptive case management order in place under
¶6 Seeking to promote efficiency in what it determined to be a “complex toxic tort action involving numerous claims,” the trial court issued a modified case management order. The order provided for evaluating the merits of the case at an early stage, requiring a prima facie showing--through expert opinions in the form of affidavits, studies and reports, and medical records--of each plaintiff‘s exposure to toxic chemicals as a result of Antero Resources’ activities, as well as evidence of causation specific to those toxins for each plaintiff. It also required identification and quantification of the contamination of the Strudleys’ real property attributable to the companies’ operations. The order prohibited the Strudleys from conducting discovery until they made this prima facie showing of exposure and medical causation for each plaintiff.
¶7 Specifically, the modified case management order required the Strudleys to provide, within 105 days:
- 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 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). - Each and every study, report and analysis that contains any finding of contamination on Plaintiffs’ property or at the point of each Plaintiffs’ claimed exposure.
- 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.
- Identification and quantification of contamination of the Plaintiffs’ real property attributable to Defendants’ operations.
The trial court noted that its requirement did not prejudice the Strudleys “because ultimately they will need to come forward with this data and expert opinions in order to establish their claims.”
¶8 In response to the modified case management order, the Strudleys provided a variety of maps, photos, medical records, and air and water sample analysis reports. Additionally, the Strudleys submitted a letter from John G. Huntington, Ph.D. (“Dr. Huntington“), about the results of a water sample test conducted on December 7, 2011--nearly
¶9 Subsequently, Antero Resources filed a motion to dismiss, or in the alternative, for summary judgment, asserting that the Strudleys failed to comply with the modified case management order. The trial court granted the motion, rejecting the Strudleys’ showing as insufficient and dismissing the action with prejudice--presumably under
¶10 The Strudleys appealed. The court of appeals concluded that the trial court had exceeded its authority as a matter of law by issuing the Lone Pine order and that in the alternative the trial court erred by entering the Lone Pine order under the circumstances of this case. The court of appeals reversed the trial court‘s Lone Pine order along with the order of dismissal and reinstated the Strudleys’ claims. Strudley v. Antero Res. Corp., 2013 COA 106, ¶ 42, ___ P.3d ___. We granted certiorari to resolve whether our Rules of Civil Procedure authorize the use of Lone Pine orders and, if so, whether the trial court in this case acted within its discretion in entering and enforcing such an order.
¶11 “A court‘s authority to act derives from rule, statute, case law, or the inherent authority of courts.” See Tulips Invs., LLC v. State ex rel. Suthers, 2015 CO 1, ¶ 23, 340 P.3d 1126, 1133. Our task in this case is to examine these sources to evaluate whether a trial court has authority to issue a modified case management order requiring a plaintiff to establish a prima facie case before discovery has taken place.
¶12 We begin with the history of Lone Pine orders and explain that the federal courts that impose this type of order acquire their authority to do so from the express language of Federal Rule of Civil Procedure 16(c). We then make clear that authority interpreting a federal rule is persuasive only when the Colorado rule is similar. Through a comparison of
II.
¶13 We hold that Colorado‘s Rules of Civil Procedure do not allow a trial court to issue a modified case management order, such as a Lone Pine order, that requires a plaintiff to present prima facie evidence in support of a claim before a plaintiff can exercise its full rights of discovery under the Colorado Rules. Although the comments to
A. Standard of Review
¶14 Whether the Colorado Rules of Civil Procedure allow trial courts to enter
¶15 We construe the Colorado Rules of Civil Procedure “liberally to effectuate their objective to secure the just, speedy, and inexpensive determination of every case and their truth-seeking purpose.” DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 24, 303 P.3d 1187, 1193. At the same time, we must interpret a rule of procedure according to its commonly understood and accepted meaning. Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo. 2002). Words and provisions should not be added to a rule, and the inclusion of certain terms in a rule implies the exclusion of others. People v. Shell, 148 P.3d 162, 178 (Colo. 2006).
B. Lone Pine Orders
¶16 Lone Pine orders evolved from an unpublished order of the Superior Court of New Jersey. See Lone Pine, 1986 WL 637507. Under the Federal Rules, such orders are designed to manage complex issues and mitigate potential burdens on defendants and the court during the course of litigation. Acuna, 200 F.3d at 340. Colorado appellate courts have never authorized their use. In contrast, federal courts rely on
¶17 Federal courts considering whether to issue Lone Pine orders seek to balance efficiency and equity. A court may decline to issue a Lone Pine order even in a complex case when other procedural devices can accommodate the unique issues of the litigation. See, e.g., Digitek, 264 F.R.D. at 259 (“Given a choice between a ‘Lone Pine order’ created under the court‘s inherent case management authority and available procedural devices such as summary judgment, motions to dismiss, motions for sanctions and similar rules, [we find] it more prudent to yield to the consistency and safeguards of the mandated rules....“). Or it may decide to issue a Lone Pine order after extensive discovery. See Vioxx, 388 Fed. Appx. at 397 (noting that after ten years and millions of pages of discovery, “it is not too much to ask a plaintiff to provide some kind of evidence to support [his or her] claim“).
¶18 Only a handful of state courts have issued Lone Pine or similar orders, citing to various sources of authority.3 Even in juris-
C. Comparison of C.R.C.P. 16 and Fed. R. Civ. P. 16
¶19 While many revised Colorado Rules are patterned from Federal Rules, revised
¶20
Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters:
(A) formulating and simplifying the issues, and eliminating frivolous claims or defenses;
....
(L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
....
(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.
(Emphasis added.)
¶21 By comparison,
(c) Modified Case Management Order. Any of the provisions of section (b) of this Rule may be modified by the entry of a Modified Case Management Order pursuant to this section and section (d) of this Rule. If a trial is set to commence less than 182 days (26 weeks) after the at-issue date as defined in
C.R.C.P. 16(b)(1) , and if a timely request for a modified case management order is made by any party, the case management order shall be modified to allow the parties an appropriate amount of time to meet case management deadlines, including discovery, expert disclosures, and the filing of summary judgment motions. The amounts of time allowed shall be within the discretion of the court on a case-by-case basis.(2) Disputed Motions for Modified Case Management Orders. If any party wishes to move for a Modified Case Management Order, lead counsel and any unrepresented parties shall confer and cooperate in the development of a proposed Modified Case Management Order. A motion for a Modified Case Management Order and one form of the proposed Order shall be filed no later than 42 days after the case is at issue. To the extent possible, counsel and any unrepresented parties shall agree to the contents of the proposed Modified Case Management Order but any matter upon which all parties cannot agree shall be designated as “disputed” in the proposed Modified Case Management Order. The proposed Order shall contain specific alternate provisions upon which agreement could not be reached and shall be supported by specific showing of good cause for each modification sought including,
where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2) . Such motion only needs to set forth the proposed provisions which would be changed from the presumptive case management Order set forth in section (b) of this Rule. The motion for a modified case management order shall be signed by lead counsel and any unrepresented parties, or shall contain a statement as to why it is not so signed.
¶22 Thus, in revising
¶23 The language of
¶24 Neither subsection 16(b) nor 16(c) of our rules addresses a party‘s disclosure or discovery obligations beyond establishing deadlines and referencing
¶25 Despite our exclusion of
¶26 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 Rule 16 in 2002, we did not pattern our rule on
D. Other Colorado Rules of Civil Procedure
¶27 Colorado Rules of Civil Procedure other than Rule 16 allow trial courts to dispose of non-meritorious claims and issue sanctions for abuses. For example,
¶28 Comments to Rule 16 expressly state that some of these rules--“Colorado Rules 16, 26, 29, 30, 31, 32, 33, 34, 36, and 37“--“were developed to interrelate with each other to provide a differential case management/early disclosure/limited discovery system designed to resolve difficulties experienced with prior approaches.”
E. Colorado Case Law
¶29 Recently, we reviewed Colorado‘s amended rule of civil procedure,
¶30 Although we referenced Rule 16 as illustrative of this principle, the clear focus of DCP Midstream was amended
¶31 DCP Midstream is consistent with our previous acknowledgment that the rules vest trial courts with discretion to manage discovery in a way that balances competing goals: endeavoring to reduce discovery costs, simplify the issues, and promote expeditious settlement of cases, while also promoting the discovery of relevant evidence. See Cardenas v. Jerath, 180 P.3d 415, 420-21 (Colo. 2008);
¶32 We examined Rule 16 closely in Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974) and Direct Sales Tire Co. v. District Court, 686 P.2d 1316 (Colo. 1984). We addressed--and limited--a trial court‘s ability to require the plaintiff to present prima facie evidence of a claim prior to compelling a defendant to engage in discovery. In Curtis, we considered whether a plaintiff was entitled to inspect various documents related to the defendant‘s business. 526 P.2d at 1335. There, we concluded that the Rules of Civil Procedure did not require the plaintiff to produce prima facie evidence before discovery and that such a requirement undermined the general policy that discovery disputes should be resolved in favor of disclosure. Id. at 1339. Similarly, in Direct Sales, we looked at whether the plaintiff was entitled to certain financial information upon the mere filing of an unfair competition complaint. 686 P.2d at 1319. We held that, except where privilege applies, a plaintiff is entitled to the information, and it would be an abuse of discretion to require the plaintiff to establish a prima facie case of liability. Id. at 1320-21. Further, we emphasized that “the adoption of a prima facie case requirement would be contrary to the basic principles governing discovery,” namely that “[d]iscovery rules should be construed liberally to effectuate the full extent of their truth-seeking purpose” and “[i]n close cases, the balance must be struck in favor of allowing discovery.” Id. at 1321.
¶33 In light of these cases, had we intended revised Rule 16 to institute a prima facie case showing akin to a Lone Pine order, we would have explicitly patterned our revised rule after
F. Application to This Case
¶34 This case involves only four family members, four defendants, and one parcel of land, yet the trial court labeled it a “complex toxic tort action.” We agree with the court of appeals that “this case is not as complex as cases in other jurisdictions in which Lone Pine orders were issued.” See Strudley, ¶¶ 36, 37. Nevertheless, the trial court deemed a Lone Pine order necessary and appropriate “to streamline discovery and make the pre-trial efforts of the parties and the [c]ourt more efficient.” Also, in its modified case management order, the trial court made clear that focusing on the Strudleys’ “admissible evidence concerning exposure and causation” might “eliminate or sharply curtail this case” (emphasis added). With this threat looming, and without the benefit of fully exercising their right to discovery under the rules, the Strudleys submitted evidence to the trial court in an attempt to comply with the order. The trial court compared that evidence with the evidence submitted in Lone Pine and concluded that the same “adequacy issues” plagued both cases.
¶35 But because no statute, rule, or past Colorado case recognizes authority for trial courts to enter Lone Pine orders, we conclude that the trial court lacked authority to enter a Lone Pine order in this case. Whether presumptive or modified, case management orders under Rule 16 are instruments courts employ to streamline litigation and ensure the just progression of a case--not to eliminate claims or dismiss a case independent of mechanisms for eliminating claims and dismissing cases under the rules. We
¶36 The Colorado Rules of Civil Procedure grant courts flexibility and discretion to address discovery disputes as they arise. But this judicial authority is limited; it does not allow a court to require a plaintiff to establish a prima facie case in the early stages of litigation while simultaneously barring discovery that might expose the very support sought to prove a claim.
III.
¶37 Accordingly, we affirm the judgment of the court of appeals.
JUSTICE BOATRIGHT dissents.
JUSTICE BOATRIGHT, dissenting.
¶38 Active case management by the judge is essential to running an efficient docket and administering justice. The rules encourage it, and caselaw, at times, demands it. Yet, today the majority taps the brakes on active case management and sends the message that unless the rules specifically authorize a docket management technique, judges lack the authority to use it in handling their cases. In my view, the modified case management order (MCMO) at issue in this case was expressly authorized by the plain language of Colorado Rule of Civil Procedure 16, which allows trial courts to adjust the timelines for disclosures and discovery. Because Rule 16 allows for these modifications, I do not believe that it is necessary for the rule to expressly state that trial courts have the authority to issue Lone Pine orders. Accordingly, I would hold that Rule 16 provided the trial court with the authority to issue the MCMO in this case, and I respectfully dissent.
¶39 The trial court‘s MCMO required the Strudleys to provide contamination reports from their property, medical records, and expert affidavits establishing exposure and causation before they could engage in discovery. As the trial court noted, the information required by the MCMO composed the basic foundation of the Strudleys’ case against Antero Resources, and they would have had to produce it in order to make their case at trial. Because the Strudleys would have had to furnish these pieces of information even if the trial court had never issued the MCMO, in my view, the MCMO simply accelerated the timeline for the Strudleys to disclose records and expert testimony and delayed the timeline for when the Strudleys could engage in full discovery.
¶40 Rule 16 expressly authorizes the trial court to make these modifications to the timelines for disclosures and discovery. Rule 16(c) states that “any of the provisions of section (b) ... may be modified by the entry
¶41 The cases cited by the majority do not compel a different result. While it is true that this court in Curtis, Inc. v. District Court, 186 Colo. 226, 526 P.2d 1335 (1974), and Direct Sales Tire Co. v. District Court, 686 P.2d 1316 (Colo. 1984), reversed the trial court for issuing Lone Pine orders, these cases were decided under antiquated versions of Rule 16 and Rule 26, and they are factually distinguishable from the present case.
¶42 At the time that Curtis and Direct Sales were decided, this court had not yet amended Rule 16 to give trial courts the authority to issue MCMOs. Compare
¶43 The facts of Curtis and Direct Sales are also distinguishable from this case. The information that the MCMO required the Strudleys to produce was entirely within their possession or control; they had to demonstrate that their own land had been contaminated, that they had been exposed to chemicals, and that they currently suffered from an illness. This is markedly different from the situation this court confronted in Curtis and Direct Sales. In those cases, the plaintiffs were unable to make the required prima facie showing because they needed information from the defendants in order to do so. Curtis, 526 P.2d at 1336 (plaintiffs alleged that defendants copied their record-keeping methods, and they needed the defendants’ records to establish a prima facie case); Direct Sales, 686 P.2d at 1317, 1320 (plaintiffs alleged that defendants were selling gasoline at prices below cost, and they needed the defendants’ cost of doing business in order to make their prima facie case).
¶44 Understandably, this court was sympathetic to those plaintiffs, who were asked to do the impossible and make a prima facie case when they could do so only with information that was exclusively in the defendants’ control. This was not the situation in the Strudleys’ case for two reasons: first, the information they had to produce was within their possession or control, and second, the Strudleys benefitted from the 1994 amendments to Rule 26, pursuant to which Antero Resources provided roughly 50,000 pages of initial disclosures at the outset of this case.
¶46 Cases from this court have echoed the same principles. In DCP Midstream, for example, this court analyzed the Committee‘s 2002 changes to Rules 16 and 26, noting that these two rules had evolved to encourage active judicial management in pre-trial matters. 2013 CO 36, ¶ 27, 303 P.3d 1187, 1194. And in Burchett v. South Denver Windustrial Co., 42 P.3d 19, 21 (Colo. 2002), we instructed trial courts to treat cases according to their specific needs and not feel obligated to impose caseflow management plans that treat all cases the same. The majority today, however, sends a different message to trial courts, telling them that if a specific case management technique is not explicitly provided for in the text of Rule 16, then it is outside the scope of their authority to manage the cases in their dockets. I disagree because I believe the plain language of Rule 16 authorizes trial courts to issue these orders and that this reading best comports with our obligation to liberally construe the rules in order to achieve their objectives. DCP Midstream, ¶ 24, 303 P.3d at 1193.
¶47 I am sympathetic to the majority‘s concerns that, in certain situations, Lone Pine orders could create a catch-22 whereby the order would prevent a plaintiff from acquiring the very information he needs to establish a prima facie case. But this is simply not the situation in this case. The only information the MCMO required the Strudleys to produce was proof that their own land had been contaminated, that they had been exposed to chemicals, and that these chemicals caused them to suffer injuries. This information was so central to their claims against Antero Resources that the Strudleys should have had it before even filing their case. Accordingly, there is nothing inequitable about adhering to the plain language of Rule 16 and holding that the trial court was authorized to enter the MCMO in this case.
¶48 I would also uphold the trial court‘s dismissal of the Strudleys’ case for their failure to comply with the MCMO. Although this sanction was severe,
¶49 The trial court acted within its discretion when it dismissed the Strudleys’ case. The Strudleys failed to establish a prima facie case of exposure, injury, and causation as was required by the trial court‘s MCMO. Their failure came despite the fact that the Strudleys had all of the required information in their possession or control. In the face of this failure of proof, I believe that the trial court acted within its discretion in dismissing
¶50 For the foregoing reasons, I would uphold the trial court‘s entry of the MCMO and its subsequent order dismissing the Strudleys’ case. I respectfully dissent.