Preliminary Hearings in Legacy Litigation – Preliminary in Theory, Not So Preliminary in Practice

In 2012, the Louisiana Legislature enacted several revisions to Louisiana’s law governing lawsuits seeking remediation of land contaminated by oil and gas exploration and production activities. One of the major amendments to La. R.S. § 30:29 (commonly called “Act 312”) is the new provision for a preliminary hearing.

Within 60 days after being served with a petition or amended petition asserting a claim under Act 312, a defendant may request a preliminary hearing to determine whether there is “good cause” to maintain it as a party in the litigation.  At a preliminary hearing, the plaintiffs have the initial burden to introduce evidence to support the allegations of environmental damage, which some courts have found can be done with a simple ground electronic magnetic survey (GEM survey) indicating possible exceedances on the property.  The burden then shifts to the defendant to establish that it did not cause or is not legally responsible for the alleged environmental damage.  If the plaintiffs cannot produce evidence of environmental damage or if the defendant establishes that it is not responsible for alleged environmental damage, the defendant is entitled to a dismissal without prejudice within 15 days after the preliminary hearing.

This provision for a preliminary hearing was intended to give defendants a way to get dismissed early on in the litigation where there is no reason for them to be involved.  And you might have expected that it would encourage plaintiffs to gather some evidence to support allegations of environmental damage before or soon after filing suit.  In practice, however, this does not appear to be the case.  Although defendants regularly request preliminary hearings early on, the hearings are often delayed for months, and in some cases over a year, while plaintiffs request (and defendants often consent to) continuances to conduct environmental testing and obtain evidence of environmental damage.  Louisiana courts have not addressed whether lengthy delays of the preliminary hearing defeat the purpose of the amendment, and it’s not clear whether a court would force plaintiffs to proceed to a preliminary hearing without allowing some additional time for the plaintiffs to attempt to gather the evidence necessary to meet their burden.  But perhaps a defendant’s challenge to extended delays of a preliminary hearing could result in a more rigid timeline for when the hearing is to be conducted and preserve a defendant’s chances at obtaining a dismissal in the preliminary stage of the case.  

Despite the common delay in preliminary hearings, this provision can at the very least be useful for discovery.  The mere existence of the provision for a preliminary hearing allows defendants to get some information on the type and location of alleged contamination at a relatively early stage in the litigation – information that typically would not be provided until much later in the litigation when expert reports are exchanged.  So even if a defendant operated wells on the property and is fairly certain that it could not succeed in actually obtaining a preliminary dismissal, it may still be worthwhile to request the preliminary hearing for this purpose – just keep in mind that the hearing might not happen as soon as you’d hope.


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