You may have read in the legal or mainstream press that the Fifth Circuit rejected challenges to the Vioxx Master Settlement Agreement. In re Vioxx Products Liability Litigation, 2010 WL 2802352 (5th Cir. July 16, 2010). That’s all well and good, but what really interested us was not given significant play in the media, perhaps because it primarily interests mass tort law geeks like us: The court affirmed the dismissal of plaintiffs who failed to comply with a Lone Pine order. In light of our firm’s involvement in the Vioxx litigation we’ll follow the Thelonious Monk approach and serve up the court’s reasoning and holding straight, no chaser.
For the uninitiated, Lone Pine orders (which we blogged about before here and here) require plaintiffs to produce some basic evidence supporting their claims – usually evidence of exposure to defendant’s product, injury, and proof that the exposure caused the injury – or face dismissal. Trial courts commonly use Lone Pine orders in mass tort litigation to eliminate meritless claims, but appellate court rulings on Lone Pine orders are unusual, which is why this opinion made us do the Carlton dance.
According to the Fifth Circuit's opinion, the Lone Pine order in the Vioxx litigation, PTO 28, required non-settling plaintiffs to notify their healthcare providers to preserve evidence pertaining to the plaintiffs’ use of Vioxx; produce pharmacy records, medical authorizations, and interrogatory answers; and produce a medical expert’s report attesting that the plaintiff sustained an injury caused by Vioxx and that the injury occurred within a specified time period. 2010 WL 2802352 at *1. Plaintiffs who failed to comply could have their claims dismissed with prejudice. Id.
A couple of groups of plaintiffs, including a group called the Dier plaintiffs, complained that PTO 28 was premature and burdensome. The court denied the motion but gave plaintiffs additional time to comply. Some plaintiffs still refused to comply. On Merck’s motion, the court dismissed with prejudice the Dier plaintiffs’ complaints for failure to comply with PTO 28. Id. at *3.
On appeal, the Dier plaintiffs claimed that the district court abused its discretion by requiring a case-specific expert report. The Fifth Circuit noted that the district court had relied on Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir. 2000), one of those few federal appellate rulings on a Lone Pine order. The Dier plaintiffs said their situation was different because supposedly they alleged precise injuries and Merck was aware of their injuries and the injuries’ link to Vioxx. The Fifth Circuit found those arguments insufficient “to warrant bypassing the clear holding in Acuna that it is within a court’s ‘discretion to manage the complete and potentially very burdensome discovery that the cases would require.’” 2010 WL 2802352 at *6 (quoting Acuna at 340).
The Dier plaintiffs’ last gasp was to challenge PTO 28 because, they claimed, expert testimony is not needed under New York law for negligent infliction of emotional distress claims. The court rejected that argument given that the Dier plaintiffs all alleged physical injuries. Id. The court therefore affirmed the dismissal of their claims. Id.
Regrettably, the Fifth Circuit designated its opinion not for publication and not precedential, presumably because its decision essentially followed its published, precedential decision in Acuna. Id. at *1 n.*. Nonetheless, those of you looking for a federal court of appeals decision affirming a Lone Pine order in a drug case are free to cite this opinion. See Fed. R. App. P. 32.1.