The Use of Pre-Discovery Orders Requiring Plaintiffs to Produce Expert Affidavits Reaches the World of Hydraulic Fracturing Litigation, Providing Another Tool in the Toolbox for Defending Such Claims

May 17, 2012
Kathleen B. Campbell
Association of Corporate Counsel's "Green-house Counsel"

Consider a hydraulic fracturing lawsuit alleging toxic tort exposure, dismissed with prejudice within just over a year of filing, not for more obvious reasons such as lack of jurisdiction or statute of limitations issues, but for failure of expert proof on issues of exposure and causation. This is precisely what happened last week in Colorado, all because of a pre-discovery case management order that the plaintiffs were unable to satisfy. General counsel should take note of this decision and others like it, and discuss with their outside counsel whether a similar strategy can be employed in the cases they handle in an attempt to obtain early dismissal, or at a minimum, to significantly streamline the discovery process.

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