No causation, no case: how Lone Pine orders can increase judicial economy and dispose of meritless claims in hydraulic fracturing litigation

No causation, no case: how Lone Pine orders can increase judicial economy and dispose of meritless claims in hydraulic fracturing litigation by Earl L. Hagström, July 20, 2012, Sedgwick LLP
In light of sprawling, complex and costly toxic tort claims, courts are turning to case management mechanisms to expedite the resolution of these claims. Federal Rule of Civil Procedure 16(c)(12) provides the courts with the authority to adopt special procedures for managing difficult or protracted actions that involve complex issues, multiple parties, difficult legal questions or unusual problems of proof. Accordingly, federal district courts are afforded broad discretion in crafting case management orders, particularly in large, complex cases. Acuna v. Brown & Root, 200 F.3d 335, 340 (5th Cir. 2000). In managing their dockets, courts have increasingly turned to so-calledLone Pine orders to assure that plaintiffs can establish the necessary elements of a prima facie case, specifically, requiring that each plaintiff show that they suffered an injury, and establishing a causal relationship between those injuries and the defendant’s conduct…. Hydraulic fracturing cases, are replete with complex scientific and medical causation issues, and appear to be tailor made for Lone Pine orders. Several environmental agencies, governmental organizations and universities have or are conducting studies to determine whether such causal links exist. See, e.g., Ernest J. Moniz, The Future of Natural Gas: An Interdisciplinary MIT Study (MIT ENERGY INITIATIVE, June 2011)…; USEPA OFFICE OF RESEARCH & DEV., Draft Report: Investigation of Ground Water Contamination near Pavillion, Wyoming (Dec. 8, 2011)…; Charles Groat, Fact-Based Regulation for Environmental Protection in Shale Gas Development, (ENERGY INST., UNIV. OF TEXAS AT AUSTIN, Feb. 2012) … Courts are more likely to issue a Lone Pine order when the defendants are able to highlight the dearth of scientific or medical evidence linking the defendant’s conduct with the plaintiff’s alleged injuries. As the above-cited studies show, there is a dearth of scientific evidence linking hydraulic fracturing with claims of groundwater contamination, earthquakes or toxic exposure. … Despite the clear expression of Ninth and Fifth Circuits to the contrary, district courts are split in their interpretation of whether  Lone Pine orders are necessary or even authorized. In Hagy v. Equitable Production Co., the Southern District of West Virginia Court concluded that because no federal rule or statute authorizes the entry of Lone Pine orders, no such order was appropriate. No. 10-01372, 2012 WL 713778 (S.D. W.Va. Mar. 5, 2012). The court found that the plaintiff’s groundwater contamination claims could be addressed by motions, sanctions and other rules, and a Lone Pine order was not appropriate.