Gas-drilling sickness case could be headed to Colorado Supreme Court

Appeals court rules in favor of Strudley family

By David O. Williams
Real AspenJuly 11, 2013
A Denver oil and gas company, dealt a blow last week by the Colorado Court of Appeals, is weighing whether to petition the Colorado Supreme Court to reconsider a ruling with far-reaching ramifications for drilling operations near homes in Colorado.

Antero Resources last week lost an appeal by the Strudley family of Silt Mesa on Colorado’s Western Slope, where hydraulic fracturing of a nearby natural gas well allegedly tainted the family’s drinking water well and fouled the air around their home.

The Strudleys filed a lawsuit against Antero in 2011 claiming bad water and air from fracking chemicals forced them from their home after family members suffered endless coughing, severe rashes, blackouts and nosebleeds. On the advice of their physician, they moved to nearby Glenwood Springs.

A Denver District Court judge last year dismissed the Strudley’s lawsuit based in part on a “Lone Pine Order” that requires plaintiffs to show the merits of their case before discovery is allowed.

The proposed new Antero Resources headquarters building near Union Station in downtown Denver (artist's rendering by Antero).

The appeals court found that the lower court “erred as a matter of law” -- citing two previous Colorado Supreme Court rulings – and remanded the case back to district court for the additional discovery the Strudleys had requested. Antero has until Aug. 14 to file a petition to the Colorado Supreme Court.

“The client wants to just have no comment on the matter for now,” said Antero attorney Daniel Dunn, of Denver’s Hogan and Lovells, adding he also couldn’t discuss a possible appeal. “Can’t tell you that either; just no comment. I hate that, but you know how that goes sometimes when you’re dealing with legal proceedings.”

Strudley attorney Corey Zurbuch, of Frascona, Joiner, Goodman and Greenstein in Boulder, said the ruling will provide for a much higher level of discovery in future oil and gas drilling lawsuits.

“We’re very pleased with the decision,” Zurbuch said. “I think it’s a victory not just for the Strudleys, but also for the people of Colorado.”

Zurbuch had argued before the appeals court that his clients showed enough evidence of sickness linked to Antero’s drilling activities to allow for additional discovery to determine the types of chemicals being used and whether there were any problems with the drilling or fracking operations that led to a spill of those chemicals.

Dunn had argued that the state’s chief regulatory agency, the Colorado Oil and Gas Conservation Commissions (COGCC), found no violation of state law by Antero and that the company disclosed enough information for the Strudleys to make their case prior to additional discovery. That added discovery in a case involving such a complex process as natural gas drilling was unnecessary and would be costly for his client, Dunn added.

The appeals court disagreed.

“The circumstances surrounding the case were not shown to be so extraordinary as to require departure from the existing rules of civil procedure,” the court found. “Further, by entering the order, the trial court unduly interfered with the Strudleys’ opportunity to prove their claims against the companies.”

The lawsuit, seeking unspecified damages, also was aimed at two of Antero’s contractors.

An Antero natural gas well.

“We did produce information about our clients’ medical conditions, including records from their treating physicians that associated the plaintiffs’ medical conditions with the defendant’s oil and gas well activities,” Zurbuch said during oral arguments before the appeals court in early June.

“What we needed and what the court didn’t give us is the information that was solely in the purview of the defendants, the chemicals that they had been using on site, were there any spills, were there any problems with the cement used in the bore of the well,” he added.

But Dunn said the Strudleys had all the information they needed to make their case prior to it moving to the discovery stage.

“To suggest that they were not given discovery is not true,” he argued last month. “They got all of the pertinent information regarding monitoring of the environment from Antero. That’s in the disclosures. That was available to them.”

The Colorado Court of Appeals came to a different conclusion.

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