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May 19, 2014 Articles

Serious Procedural Barriers to Fracking Litigation

Lone Pine orders, Daubert challenges, and Rule 11 sanctions may stand in the way.

Carter F. Thurman and Onika K. Williams – May 19, 2014

With the cost of oil rising since the turn of the century, hydraulic fracking in domestic formations has grown even more cost-effective and prevalent. Proponents see potential to lessen the country’s dependence on foreign oil and increase the commercial viability of natural gas. Critics point to its alleged adverse effects on the environment—ranging from groundwater and air pollution to earthquakes—and suggest that these effects outweigh the benefits. Regardless of one’s position, the number of fracking lawsuits filed each year is growing as a result of these alleged adverse effects. Similar to the industrial processes challenged in traditional toxic-tort litigation, the fracking process is complex and involves sensitive technologies and potentially hazardous chemicals. Just as has occurred in toxic-tort cases, we can expect plaintiffs to encounter serious procedural barriers to establishing their claims.

What Is Fracking?

Fracking involves injecting millions of gallons of water and other fluids under high pressure to fracture deep-rock formations, ultimately releasing small pockets of trapped natural gas.See Brent Allen & Lesley Lawrence-Hammer, When fracking fluid is pumped into the well, the immense pressure breaks the shale and extends the cracks. As the shale breaks apart, the pockets of trapped natural gas are released. When pumping is stopped, the loss of pressure allows the fracking fluid and natural gas to seep out of the shale and flow back up the well to the surface, where the natural gas and returning fracking fluid are recovered.

Potential Barriers in Fracking Litigation

We anticipate that plaintiffs will face at least three serious procedural barriers to prosecuting their fracking cases: (1) Lone Pine orders, (2) Daubert motions, and (3) sanctions motions.

The Lone Pine Order. The first potential barrier that plaintiffs may face in bringing fracking cases are Lone Pine orders, which are often entered as alternatives to standard case-management orders. Lone Pine orders are issued before discovery and require plaintiffs to support a prima facie case early in the discovery process.See Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986). In federal court, these orders are generally permitted by Rule 16(c)(2)(L) of the Federal Rules of Civil Procedure. See In re Vioxx Prods. Liab. Litig., 388 F. App’x 391, 397 (5th Cir. 2010). A Lone Pine order requires plaintiffs to provide an expert affidavit that identifies (1) the identity and amount of chemical(s) exposed to, (2) the disease or illness suffered, and (3) the evidence supporting a theory that the defendant’s chemicals caused the injury in question. See Daniel J. Dunn et al., “Lone Pine Procedure Successful in Fracking Case,” Envtl. Litig. Vol. 23, No. 3 (Spring 2012) (citing McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009)). If the plaintiffs fail to make the required showing under the Lone Pine order, the court may dismiss the claims or enter a summary decision in favor of defendants. Commentators have noted that the entry of a Lone Pine order is one of the most successful techniques for reducing litigation costs. Michael Goldman, “A Survey of Typical Claims and Key Defenses Asserted in Recent Hydraulic Fracturing Litigation,” 1 Tex. A&M L. Rev. 305, 323 (2013).

The first fracking case to use a Lone Pine order was a Colorado case, Strudley v. Antero Resources Corp., 2012 WL 1932470 (Colo. Dist. Ct. May 9, 2012). The court required the plaintiffs to provide evidence, including expert opinion, of exposure and causation. The court dismissed the case for failure to comply with the Lone Pine order, finding that the plaintiffs’ showing was inadequate because the plaintiffs lacked expert testimony about whether exposure was a contributing factor to the plaintiffs’ injuries. In reaching its decision, the court relied on a detailed report by a state regulatory commission that concluded that the water supply was not affected by oil and gas operations in the vicinity. The Colorado Court of Appeals, however, reversed the Lone Pine order and reinstated the case based on state law and differences between Colorado Rule of Civil Procedure 16 and Federal Rule of Civil Procedure 16. Strudley v. Antero Res. Corp., 2013 WL 3427901, at *6–9 (Colo. App. July 3, 2013). The defendants filed a petition for writ of certiorari in the Colorado Supreme Court. Strudley v. Antero Res. Corp., No. 2013SC576 (Colo. filed Aug. 29, 2013). The Colorado Supreme Court’s ruling in Strudley will help determine whether a Lone Pine case-management approach will gain momentum in fracking cases.

Meanwhile, defendants have been using Lone Pine orders in other jurisdictions.See, e.g.Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476 (M.D. Pa. 2013).Lone Pine orders “appear to be utilized most often in cases involving complicated legal and factual issues in complex mass tort and toxic tort litigation involving multiple parties.” Roth v. Cabot Oil & Gas Corp., 287 F.R.D. 293, 297 (M.D. Pa. 2012). Attorneys should be aware, as the Strudley court pointed out, that other courts have “refused to enter Lone Pine orders where existing statutes, rules, and procedures provide sufficient protection against frivolous or unsupported claims and burdensome discovery.” Strudley, 2013 WL 3427901, at *5 (citing Roth, 287 F.R.D at 299–300).

Regardless of Strudley’soutcome, defense attorneys should consider the Lone Pine approach as an efficient alternative to the standard case-management order.

Daubert Challenges. Given the depth of well bores and the volume of fluid used, it is no surprise that the vast majority of fracking lawsuits involve claims of groundwater contamination. These claims will require expert testimony, whose admissibility is governed by Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592–93 (1993). Commentators expect that fracking litigation will soon be characterized by battles over the qualifications of experts and the reliability of their opinions. Steven A. Luxton et al., “Daubert, Groundwater Contamination, and the Future of Fracking Litigation,” 61 The Advoc. (Texas) 26, 26 (Winter 2012). Daubert decisions in groundwater-contamination cases provide insights into potential Daubertchallenges in fracking lawsuits.         

Hydrology experts, among others, routinely testify in groundwater contamination cases as to the alleged presence and causes of contamination. These experts often base their opinions on complex mathematical models that are calibrated to the facts of a case. Id. at 27; see Aero-Motive Co. v. Becker, 2001 WL 1699191, at *2–3 (W.D. Mich. 2001) (describing MODFLOW as a “widely-used, well-tested particle-tracking model[ ] that ha[s] been subjected to peer review and [is] commonly accepted in the hydrogeologic community”). Courts have found such models to be reliable based on peer review and general acceptance in the field.

Every case, however, offers numerous variables that could affect a court’s decision to allow the use of these models. Historically, experts in groundwater-contamination cases have faced a myriad of Daubert challenges. For example, these experts have been challenged based on conflict between model predictions and actual field data. See, e.g.Abarca v. Franklin Cnty. Water Dist., 761 F. Supp. 2d 1007 (E.D. Ca. 2011) (refusing to exclude the plaintiff’s expert based on conflicting testimony regarding the appropriateness of considering historical measurements that conflicted with model results). Additionally, these experts have typically been challenged for failing to consider data that conflict with their opinions, failing to compute and document error, failing to provide adequate factual support for the conclusion that the chemicals in question were disposed of during the relevant period, and failing to consider other sources of the chemicals when results of actual testing conflict with the results predicted. See LeClercq v. The Lockformer Co., 2001 WL 199840 (N.D. Ill. Feb. 28, 2001). Furthermore, courts have excluded expert testimony based on a model if the litigants failed to proffer the modelers who actually perform the groundwater modeling. See Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609 (7th Cir. 2002). Similar challenges will likely be brought in fracking cases.

Future fracking cases will also present opportunities for novel Daubert challenges. Given the complexity and sophistication of current fracking techniques, there will be countless opportunities to challenge proffered experts. Although data are being recorded, “the amount of data available is not substantive and the degree to which . . . fracking impairs groundwater quality remains unresolved.” John A. Simon, “Editor’s Perspective—An Update on the Hydraulic Fracturing Groundwater Contamination Debate,” 24 Remediation J. 1, 8 (Spring 2014). Furthermore, the battle of the experts will prove just as contentious as in the past as “studies by industry experts do not necessarily arrive at the same conclusions regarding the potential groundwater quality impairment due to fracking.” An EPA study, scheduled for publication in 2014, may shed some light on this issue; however, “the issue is so complicated that the EPA’s findings may not be definitive.” The only certainty is that novel and creative Daubert challenges should be seriously considered—especially if “really big supercomputers” are in fact needed to pinpoint the odds of contamination somewhere between a “snowball’s chance in hell” and “it’s happening every day.” Chris Mooney, “The Truth about Fracking,” 305 Sci. Am.80, Nov. 2011, at 84 (quoting Anthony Ingraffea, an engineering professor at Cornell University).

Rule 11 Sanctions. As has occurred in toxic-tort cases, parties in fracking cases may face challenges under Federal Rule of Civil Procedure 11 because of the inability to establish specific causation to support a plausible cause of action. “Rule 11 permits a court to impose sanctions on a party or lawyer for advocating a frivolous position, pursuing an unfounded claim, or filing a lawsuit for some improper purpose.” CQ Int’l Co., Inc. v. Rochem Int’l, Inc., U.S.A., 659 F.3d 53, 60 (1st Cir. 2011) (citing Fed. R. Civ. P. 11 (b)). “Rule 11 also requires that each filing reflect a party or counsel’s reasonable inquiry into facts that support the document.”Holden v. Ill. Tool Works Inc., 429 F. App’x 448, 452 (5th Cir. 2011).

Recently, in a toxic-tort case in which the plaintiffs sued Chevron for property damage and medical-monitoring claims arising from activities at a Chevron refinery, a district court granted Rule 11 sanctions against plaintiffs’ counsel, and the Sixth Circuit affirmed. See Baker v. Chevron U.S.A. Inc., 533 Fd. App’x 509 (6th Cir. 2013). After granting the defendant’s motions to exclude two of plaintiffs’ experts’ opinions, the district court granted summary judgment to Chevron on all claims. The district court also granted Chevron’s motion for Rule 11 sanctions, ordering plaintiffs’ counsel to pay $250,000 in defense costs because their positions regarding the legal and evidentiary basis for medical monitoring were objectively unreasonable. The Sixth Circuit affirmed the judgment of the district court, including the order granting Rule 11 sanctions to the defendant.

In affirming the district court’s grant of sanctions, the Sixth Circuit concluded that plaintiffs’ counsel, even on appeal, continued to assert “patently unreasonable” statements of law and that counsel was “advancing claims that [were] not ripe in an attempt to collect damages for nonexistent harm.” Additionally, the Sixth Circuit was not persuaded by counsel’s argument that the district court was punishing counsel with sanctions because their clients wanted to preserve their appellate rights instead of voluntarily dismissing their claims. The Sixth Circuit points out that after counsel admitted they had no causation proof, the district court suggested a dismissal so that counsel could challenge the court’s rulings on appeal. Subsequently, however, plaintiffs’ counsel reneged, and in light of counsel’s admission regarding their lack of evidence, Chevron sent plaintiffs’ counsel a Rule 11 safe-harbor letter advising counsel to voluntarily dismiss or face the possibility of paying defense costs for the medical-monitoring claims going forward. Ultimately, plaintiffs’ counsel refused to dismiss the claims. After reviewing the history of the case, the Sixth Circuit concluded that “the district court did not commit a clear error of judgment by sanctioning counsel for continuing to litigate meritless claims.”

While Baker involves a plaintiffs’ counsel who took an extreme position, the overarching threat of Rule 11 sanctions can still serve as a possible deterrent in pursuing fracking claims, particularly given the backdrop of Twombly/Iqbal and in the evidentiary framework of DaubertSee “Litigation Environment for Drilling and Hydraulic Fracturing,” 43 Envtl. L. Rep. News & Analysis 10221, 10230 (Mar. 2013).


In sum, plaintiffs bringing fracking cases will face an interwoven procedural landscape of pleading requirements, evidentiary hurdles, and ethical obligations, presenting serious procedural barriers to bringing viable fracking claims.


Keywords: energy litigation, fracking, hydraulic fracturing, Lone Pine order, Daubert, Rule 11 sanctions


Carter F. Thurman and Onika K. Williams are law clerks for the U.S. Nuclear Regulatory Commission's Atomic Safety and Licensing Board Panel, based in Washington, D.C. The views expressed in this article are solely those of the authors and do not represent the positions of the NRC.

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