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Edward E. Kamuck v. Shell Energy Holdings Gp

September 5, 2012


The opinion of the court was delivered by: Magistrate Judge Carlson


Contending that Plaintiff's remaining claims in this action or overly general and lack evidentiary support, and claiming to have significant doubts about Plaintiff's ability to make out a prima facie case in support of his remaining claims based on the discovery exchanged to date, Defendants have moved the Court to modify the existing case management order by entering a so-called "Lone Pine" order, which would require Plaintiff to identify the evidence he has that is required to establish his claims before any further discovery is permitted.*fn1

Through this motion, Defendants suggest that they are not seeking the premature adjudication of Plaintiff's remaining claims, but are instead attempting only to discover the evidence that Plaintiff has at this time to support his remaining claims, and to be provided with information regarding the factual, scientific, and medical evidence that Plaintiff claims to have in support of his contentions in this litigation. As such, Defendants request the entry of a modified case management order that would require Plaintiff to provide -- before the continuation of any further discovery and motions practice -- admissible factual evidence to substantiate the allegations and elements of Plaintiff's remaining claims of nuisance, negligence, and strict liability as a result of Defendants' natural gas exploration and drilling activities.

Plaintiff opposes Defendants' motion, asserting that Lone Pine orders are typically entered only in mass tort litigation, and toxic-tort actions involving complex issues and potential burdens that would otherwise be imposed upon the parties in these particular types of litigation -- factors Plaintiff argues are not present in this case. Plaintiff avers that the parties were engaging in ongoing discovery prior to the entry of the Court's order staying case management deadlines pending disposition of Defendants' Lone Pine motion, and maintains that such discovery should be permitted to proceed in the traditional course of federal civil practice.

In their reply, Defendants argue that Plaintiff improperly and inaccurately relies exclusively on procedural arguments in contesting the motion, and contend that their substantive arguments made in support of a Lone Pine case management order remain effectively unchallenged.

Upon consideration, although we find that we have the authority to enter a Lone Pine order in the exercise of our broad discretion to manage this civil action, we are not persuaded that such an order is warranted at this time. Accordingly, we will deny Defendants' motion, but do so without prejudice to Defendants seeking to return to the Court if they believe in good faith that Plaintiff's discovery requests are unreasonably burdensome in light of the relative generality of Plaintiff's allegations regarding his injuries and Defendants' allegedly tortious conduct. Furthermore, we will schedule a telephone conference with the parties to discuss the proper course for staging discovery going forward, particularly in light of Defendants' arguments regarding Plaintiff's claims and their evidentiary basis, in an effort to help streamline the discovery process in manner that is fair to all parties and that minimizes unnecessary expense.


Plaintiff Edward Kamuck is a disabled Vietnam veteran who maintains a home on approximately 93 acres of land in Mansfield, Pennsylvania. Defendants are business entities involved in oil and gas exploration and drilling activities on properties located near Kamuck's home, and who utilize the area roads as part of their oil and gas business. Plaintiff claims that Defendants' business activities have caused him physical injury and have damaged his property.

Plaintiff brought this action against Defendants on August 3, 2011. (Doc. 1.) In the complaint, Kamuck initially brought 10 causes of action against Defendants, including breach of contract, declaratory judgment, and a number of tort-based claims, all relating to Defendants oil and gas exploration and drilling activities. (Id.)

Upon consideration of Defendants' motion to dismiss the complaint (Doc. 11.), and following this Court's report and recommendation (Doc. 33.), the district court entered an order dismissing all of Plaintiff's claims except for three tort claims set forth in Counts 8, 9, and 10 of the complaint alleging (1) nuisance, (2) negligence, and (3) strict liability, premised on allegations that Defendants' oil and gas activities have contaminated Plaintiff's property and water, resulted in health injuries to Plaintiff, diminished Plaintiff's property value, and caused Plaintiff to suffer loss of enjoyment of his property. (Doc. 39.)

On April 26, 2012, the parties consented to proceed before the undersigned (Doc. 38.), and the district court referred the case to this Court on April 27, 2012. (Doc. 40.) Defendants answered the complaint on May 10, 2012 (Doc. 42.), and the Court entered a standard case management order on May 11, 2012, setting forth a number of pre-trial, discovery, and trial dates that would govern this action. (Doc. 43.)

The following month, Defendants filed the motion now pending before the Court, seeking entry of a modified case management order along the lines of that issued in Lore v. Lone Pine, 1986 WL 637507 (N.J. Superior Ct. Nov. 18, 1986), which would require Plaintiff to make a prima facie showing in support of his remaining claims within 120 days, and before any additional discovery or litigation would be allowed. (Doc. 44.) Specifically, in their proposed order, Defendants would have the Court compel Plaintiff to provide:

(1) expert opinions, which would include supporting data and facts, in order to establish (a) the identity of each hazardous substance from Defendants' activities to which Plaintiff or his property were exposed, and which Plaintiff claims caused him or his property injury; (b) whether any and each of these substances can cause the types of disease, illness, or contamination that Plaintiff claims; (c) the dose or other quantitative measurement of the concentration, timing, and duration of the exposure to each substance; (d) if other than the Plaintiff's residence, the precise location of any exposure; (e) an identification , by way of reference to a medically recognized diagnosis, of the specific disease or illness from which Plaintiff allegedly suffers; and (f) a conclusion that the illness or property contamination was in fact caused or exacerbated by such exposure;

(2) each and every study and report of analysis that contains any finding of contamination on Plaintiff's property or at ...

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