Toxic Tort and Product Liability Quarterly
Lone Pine Case Management Orders
Sweeping Colorado Supreme Court Order Limits Lone Pine Approach
The Colorado Supreme Court issued a sweeping ruling that will limit, if not eliminate, Lone Pine-style case management orders in Colorado toxic tort cases. See Antero Resources v. Strudley, 2015 BL 111122 (Colo. Apr. 20, 2015).
Plaintiff landowners lived near Defendants’ natural gas drilling operations. Plaintiffs allege those operations contaminated their property with various substances, causing a bevy of physical ailments and forcing Plaintiffs to move from the property.
The Defendant drilling company and contractors moved for, and the trial court granted, a “modified case management order” similar to the order entered in the Lone Pine toxic tort case. See id. at 7. The order required Plaintiffs to make a prima facie showing of each Plaintiff’s injuries, as well as the causal connection between those injuries and the drilling operations, and quantification of the alleged contamination of Plaintiffs’ property. Id. at 7-8. The order also barred Plaintiffs from conducting any discovery until they made such showings.
Plaintiffs offered evidence related to their medical complaints, as well as some air and water sampling, but offered no evidence that their injuries were causally connected to Defendants’ drilling operations. Defendants moved to dismiss for failure to comply with the order; the trial court granted the motion with prejudice.
The Colorado Supreme Court reversed, holding “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 to discovery.” Id. at 11. While the Colorado Rules of Civil Procedure are closely modeled after the Federal Rules of Civil Procedure, the Court found Colorado’s rules do not contain the same explicit grant of trial court discretion to fashion early-stage procedures to streamline complex litigation. The Court also expressed concern that “if a Lone Pine order cuts off or severely limits the litigant’s right to discovery, the order closely resembles summary judgment, albeit without the safeguards supplied by the Rules of Civil Procedure.” Id. at 23.
Pennsylvania Federal Court Rejects Early Lone Pine Motion in Oil and Gas Nuisance Suit
A federal district court in Pennsylvania cautioned against premature Lone Pine motions in a ruling that may be instructive for future lawsuits involving oil and gas exploration and production operations. See Russell v. Chesapeake Appalachia, LLC, No. 4:14-cv-00148 (M.D. Pa. Mar. 2, 2015). Plaintiffs, owners, and residents of property situated near Defendant’s gas exploration and extraction operations filed a complaint in state court alleging nuisance, negligence, and negligence per se. Defendants removed the case to federal court, and after filing their answer, renewed an earlier motion for a Lone Pine order.
The district court denied the motion without prejudice, concluding that it could not issue a Lone Pine order without some discovery. The Court found a Lone Pine order—which requires a plaintiff to present prima facie evidence supporting a claim prior to summary judgment—to be unjustified at the early stage of the lawsuit. The Court set a high bar for issuing the order, explaining that it “should issue only in an exceptional case and after the defendant has made a showing of significant evidence calling into question plaintiffs’ ability to bring forward” evidence of causation. Id. at 5 (quoting McManaway v. KBR, Inc., 265 F.R.D. 384, 389 (S.D. Ind. 2009)). Citing Defendants’ failure to identify any such evidence and the case’s pre-discovery posture, the Court denied the motion, leaving the door open for a Lone Pine order in the future with a more developed record.
Pennsylvania Federal Court Strikes Class Allegations in Air Pollution Suit
Underscoring the requirement that class action plaintiffs clearly and objectively define the putative class without reference to the underlying merits of plaintiffs’ claims, a federal district court in Pennsylvania struck class allegations from a complaint in a suit against a power plant. See Bell v. Cheswick Generating Station, No. 12-929, (W.D. Pa. Jan. 28, 2015). The case was back in district court after the Third Circuit reversed the trial court’s dismissal, ruling that the Clean Air Act did not preempt Plaintiffs’ claims. See Bell v. Cheswick Generating Station, 734 F.3d 199 (3d Cir. 2013). (Our previous coverage of this case is available here and here.)
Plaintiffs filed a class action complaint asserting nuisance, negligence, trespass and strict liability claims arising from the plant’s emissions. Plaintiffs defined the putative class as those living within a one-mile radius of the power plant “who have suffered similar damages to their property by the invasion of particulates, chemicals, and gases from defendant’s facility which thereby caused damages to their real property.” Bell, Slip Op. at 2.
The district court struck the class allegations because the class definition contained two fatal flaws. First, the Court held Plaintiffs had proposed a prohibited “fail-safe” class, meaning that determining whether individuals fall within the class would turn on resolving “ultimate issues of liability – damage and causation.” Id. at 5. Here, class membership would have turned on whether that person was injured and the Defendant’s emissions caused the injury. Second, the Court concluded that requiring class members’ injuries to be “similar” to Plaintiffs’ was too subjective a standard to apply, therefore falling short of the class “definiteness” requirement courts have found implicit in the Federal Rules of Civil Procedure. See id. at 5-6.
Missouri Appellate Court Rejects Evidentiary Hearing, Reinstates Asbestos Class Claims
Finding that only a narrow evidentiary review is appropriate when certifying a class under Missouri state law, a Missouri appeals court reversed a trial court’s decision to deny class certification in a suit alleging asbestos exposure. See Elsea v. U.S. Engineering, Co., No. WD77687 (Mo. App. W.D. Mar. 17, 2015). Plaintiff courthouse workers alleged improper removal of asbestos during renovations and sought medical monitoring damages based on negligence and strict liability claims.
The trial court held a four-day evidentiary hearing, involving both fact and expert testimony, to determine whether members of the potential class met the standards for class certification set out in Missouri’s rules of civil procedure. Although Plaintiffs presented testimony that improper asbestos abatement caused elevated asbestos levels in the courthouse, the trial court determined “[t]here is a likelihood that individual hearings would be necessary to categorize class members, and to address individual issues of exposure, dose, causation and monitoring protocol.” Id. at 3. The Court, therefore, denied Plaintiffs’ motion for class certification.
Such an in-depth hearing, the appeals court found, was an abuse of the trial court’s discretion. The appeals court held the appropriate standard for class certification in Missouri is whether “there is evidence in the record, which if taken as true, would satisfy each and every requirement” for class certification. Id. at 5. The trial court erred by accepting conflicting expert testimony and evidence presented by the defense, instead of taking the Plaintiffs’ evidence as true. The appeals court reversed the trial court’s ruling and found that Plaintiffs’ class definition met Missouri requirements for certification.
California Federal Court Dismisses Medical Monitoring Claims for Lack of Plausible Cancer Risk
In a significant victory for defendants facing toxic tort exposure claims, a California federal court dismissed a medical monitoring putative class action brought by drinkers of certain Pepsi products because Plaintiffs failed to plead facts to support their claims that the products cause cancer in humans. See Riva v. Pepsico, Inc., No. C-14-2020 (N.D. Cal. Mar. 4, 2015).
Plaintiffs brought claims for negligence, strict liability for defective design, and strict liability for failure to warn. Plaintiffs claimed certain of Defendant’s products contained unhealthy levels of the chemical compound 4-methylimidazole (4-MeI), which, among other things, required warning labels under California's Proposition 65. As a remedy for their claims, Plaintiffs sought medical monitoring to detect whether those who drank the products above certain levels were at higher risk of developing cancer in the future.
In granting Defendant’s motion to dismiss, the Court concluded that the Plaintiffs had failed to provide sufficient plausible factual allegations that 4-MeI caused cancer in humans. The Court found that Plaintiffs’ allegations of causation and injury lacked plausible factual support because “[t]here is no plausible inference that 4-MeI causes bronchioloalveolar cancer in humans. The threshold levels of exposure that lead to an enhanced risk of disease have not been identified. And many other common foods, contain similar or higher levels of 4-MeI than the products at issue.” Id. at *16. While the court acknowledged that 4-MeI is listed as a carcinogen under Proposition 65 and that Plaintiffs had alleged mice experienced an increased risk of cancer due to 4-MeI exposure, the Court determined that Plaintiffs had not alleged facts that the threshold levels of 4-MeI exposure in the instant case created increased risk to humans.
Texas Supreme Court Holds Plaintiffs Must Prove Lack of Consent in Trespass Suits
Potentially making it more difficult for plaintiffs to prevail on trespass claims in Texas, the Supreme Court of Texas held for the first time that a plaintiff bears the burden of proving the lack of consent in a suit for trespass. See Envtl. Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905 (Tex. Feb. 6, 2015). Plaintiffs filed suit against their neighbor, alleging that Defendant’s underground wastewater injection was causing wastewater to migrate into the subsurface of Plaintiffs’ property. After a prior set of appeals and a trial, a jury returned a take-nothing verdict in favor of Defendants, and further appeals followed.
The Texas Supreme Court held that the trial court had properly charged the jury by placing on Plaintiffs the burden of proving that they had not consented to an invasion of their property. The Court surveyed how its cases had defined trespass over time, concluding, “[w]e have never departed from the inclusion of lack of consent or authorization in the definition of trespass.” Environmental Processing, Slip Op. at 12. It found no persuasive indication that consent should be an affirmative defense. The Court also addressed concerns that future plaintiffs would struggle to prove a negative, observing that the landowner or possessor is the party likely to have better access to evidence of whether or not they consented.
Disposing of the case on this issue, the court declined to answer another critical question posed by this case: “whether Texas law recognizes a trespass cause of action for deep subsurface water migration.” Id. at 17.
Statute of Limitations
Louisiana Court Rules that Migration of Chemicals from Spill Not a “Continuing Tort”
In a case that may make it more difficult for plaintiffs to maintain years-old toxic tort cases in Louisiana, a state appellate court ruled that a 1983 chemical spill did not constitute a “continuing tort.” See Ned v. Union Pac. Corp., Nos. 14-1310, 14-1311 (La. App. 3d Cir. Apr. 15, 2015). In affirming the trial court’s decision granting summary judgment to Defendants, the court rejected Plaintiffs’ argument that the continued presence of perchloroethylene (PCE) released in a 1983 chemical spill was a “continuing tort” that tolled the state’s statute of limitations. Id. at *11. The court also rejected Plaintiffs’ argument that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempted the state’s statute of limitations.
The case arose from an April 20, 1983 spill of 11,000 gallons of PCE from an open valve in a parked railcar near the Fisherville neighborhood in Lake Charles, Louisiana. Plaintiffs alleged the continued presence of PCE constituted an ongoing tort and therefore Louisiana’s one-year statute of limitations did not bar their claims.
The appeals court cited prior Louisiana decisions, in which courts found releases from leaking underground storage tanks and an unlined waste disposal pit were one-time releases and not continuous torts. Here, the court found the 1983 PCE release was akin to the releases in those earlier cases; there was no ongoing unlawful conduct that allowed Plaintiffs to rely on the continuing tort theory to avoid Louisiana’s statute of limitations.
Plaintiffs also argued CERCLA displaces Louisiana’s statute of limitations. The Court disagreed, holding the CERCLA provision at issue, 42 USC § 9658, was designed to preempt state statutes of limitations barring claims for long-latent injuries. Because claims are triggered under both state law and CERCLA when a plaintiff knows or reasonably should know of the injury, and Plaintiffs did not convince the court of any inconsistencies between the accrual of state and federal claims, the Court rejected Plaintiffs’ displacement argument.
Beveridge & Diamond's Toxic Tort and Environmental Tort practice group defends large companies in virtually all industries against toxic tort and product liability claims involving a wide range of chemicals and related substances, including metals such as arsenic, lead, and mercury. While the majority of clients tend to be in oil, chemicals, and manufacturing, we represent any type of company with actual or potential exposure to toxic tort liability or product liability. For more information, contact the authors.