“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.
Tag Archives: Causation
William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)
Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)
“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.
In Re Stacy Warden and Chris Warden as representatives of Noah Warden, a minor child v. Exempla, Inc. d/b/a Exempla Healthcare, et. al., 2012CO74 (December 20, 2012)
As we have re-discovered, after a tragedy people look for a cause. In this medical malpractice case, a baby was born with brain damage after being deprived of oxygen. The parents claim the cause was failure to monitor the baby during birth; the hospital claims the damage preceded labor. Three of Plaintiff’s experts were excluded. The Court reversed the exclusions. The first expert was excluded because she did not respond to Defendants’ experts. The Court disagreed, as she might refute Defendants’ theory of causation which relied heavily on a study she critiqued. Two experts addressing the child’s life expectancy were excluded as an “ambush.” The testimony should have been initially disclosed, but the delay was harmless because: 1) the trial is months away, 2) the importance to Plaintiff’s claim, 3) Defendants’ own experts raised the defense, and 4) lack of evidence of bad faith.
City of Littleton and CCMSI v. Industrial Claims Appeals Office, Julie Christ, and Michelle Parris 2012COA187 (November 1, 2012)
Radiation causes cancer; does being a firefighter also cause cancer? Causation is never that simple, as this 68 page opinion and dissent demonstrate. In this case, a firefighter gets brain cancer and claims it was related to his employment and the hazardous chemicals to which he was exposed on the job. The central issue on appeal is what evidence the fire district must present to prove that being a firefighter did not cause the cancer? In a typical toxic tort case, the burden would be on the firefighter. But in Colorado there is a special statute that shifts the burden to the employer to prove that the employment could not have caused cancer, and that it did not cause cancer in this firefighter. The court found the employers’ evidence did not meet that burden because it could not disprove the presumption that employment-related exposure to toxic substances was the source of the cancer.