Friday, November 30, 2012

Lone Pine Cheat Sheet

            Whenever we learn about the entry of a Lone Pine order, we take the opportunity to extoll the virtues of Lore v. Lone Pine Corp., 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986) in which a New Jersey state court judge ordered plaintiffs to offer proof connecting the defendant's product to the plaintiff's alleged injury.  And with the recent entry of another Lone Pine order in In re Fosamax Products Liability Litigation, 2012 U.S. Dist. LEXIS 166734 (S.D.N.Y. Nov. 20, 2012), we thought it made sense to start keeping track of these orders.  So, here you have our Lone Pine cheat sheet.  Like with our other cheat sheets, this is an attempt to collect all the favorable decisions entering or upholding Lone Pine orders and we’ll do our best to keep it updated (we’ve included toxic tort cases as well because they are helpful). 
            Although the specifics can vary, typically a Lone Pine order requires the plaintiff to prove that he or she was exposed to the defendant's product, to identify the precise alleged injury resulting from the exposure, and to offer some sort of proof that the exposure caused the disease.  Huh?  Isn’t that part of plaintiffs’ burden in every products liability case?  Well, yes.  But as we all well know, in the context of a mass tort or multidistrict litigation (or a toxic tort) hundreds, maybe thousands, of plaintiffs’ cases sit idly on the court’s docket with virtually no case-specific discovery while millions of dollars of discovery directed to defendants goes on for years.  And that means meritless and frivolous cases (it’s no secret that with mass solicitation by plaintiffs’ lawyers many, many non-legitimate cases get filed) go along for the ride and are still hanging around when a mature mass tort moves toward remanding individual cases or settlement discussions begin.
            So it can hardly come as a surprise that we favor a case management mechanism that puts plaintiffs to some level of proof early on in the proceedings.  “Early on” being a relative term as courts seem more willing to enter Lone Pine orders after a litigation has been around a while.  But, even after a few years of general discovery, a Lone Pine order is certainly better for defendants than collecting medical records, deposing plaintiffs and health care providers, retaining experts, deposing opposing experts, and drafting summary judgment motions in one case, let alone hundreds.  All to cause a court to dismiss a claim that was meritless or fraudulent from the start.
            Lone Pine orders are permitted by the broad discretion given to federal courts by FRCP 16(c)(2)(L) to control mass torts and complex litigation.  State courts generally have their own discretion to employ such case management techniques.  Further, as alluded to above, Lone Pine orders “impose a minimal burden on plaintiffs, as it merely asks them to produce information they should already have.”  In re Fosamax Products Liability Litigation, 2012 U.S. Dist. LEXIS 166734 at *6.  The Fosamax court seemed particularly persuaded by the fact that the majority of cases set for trial and/or selected for discovery were dismissed:  “Plaintiffs’ habit of dismissing cases after both parties have expended time and money on case-specific discovery demonstrates that this MDL is ripe for a Lone Pine order.”  Id. at *7.  While a Lone Pine order is not always a slam dunk for the defense, there is certainly enough precedent to argue that entry is grounded in ample law. 
  • Lore v. Lone Pine Corp., 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986).
  • Cottle v. Superior Court, 3 Cal. App. 4th 1367 (Cal. Ct. App. 1992) (upholding trial court order requiring plaintiffs to identify product, exposure, alleged injury and the identity of a medical expert who will support the plaintiff's personal injury claim”).
  • Atwood v. Warner Electric Brake & Clutch Co, 605 N.E.2d 1032 (Ill. App. 2d 1992) (upholding trial court order requiring plaintiffs to produce case-specific medical reports and submit to defense expert medical examinations before the depositions of the plaintiffs were scheduled).
  • Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir. 2000) (holding no abuse of discretion by trial court in entering Lone Pine orders; “The scheduling orders issued below essentially required that information which plaintiffs should have had before filing their claims pursuant to FRCP 11(b)(3)”).
  • In re Baycol Litig., November Term, 2001, No. 0001, Order (Ct. Com. Pl. Phila. Co. Dec. 12, 2003) (entering Lone Pine order in Pennsylvania state court coordinated Baycol proceeding)
  • In re Baycol Prods. Liab. Litig., MDL No. 1431, 2004 WL 626866, at *1 (D. Minn. Mar. 18, 2004) (entering initial Lone Pine order, which was later amended, for numerous purposes including toidentify . . . the claims of those plaintiffs who have and those who do not have factually and legally sufficient support for their alleged claims and injuries or damages”). 
  • In re: N.Y. Rezulin Prods. Liab. Litig., slip op., Master Index No. 752,000/00, Order (N.Y. Sup. Ct. N.Y. Co. Aug. 7, 2004) (entering Lone Pine order in New York state court coordinated Rezulin proceeding).
  • In re Rezulin Prods. Liab. Litig., MDL No. 1348, 2005 WL 1105067 (S.D.N.Y. May 9, 2005) (ordering plaintiffs to serve case-specific expert reports, failure to do so may result in sanction of dismissal with prejudice).
  • In re Silica Prods. Liability Litig., 398 F. Supp. 2d 563, 576 (S.D. Tex. 2005) (entering Lone Pine type order requiring each plaintiff to submit specific information about his exposure to silica dust and detailed medical information concerning each alleged injury).
  • In re 1994 Exxon Chemical Plant Fire, 2005 WL 6252312 (M.D. La. Apr. 7, 2005) (entering Lone Pine order, finding that if plaintiff is unable to comply “the court should be concerned with the viability of that plaintiff’s claims” and that the Lone Pine order “would reduce costs and save time.”)
  • Burns v. Universal Crop Protection Alliance, 2007 U.S. Dist. LEXIS 71716 (E.D. Ark. Sept. 25, 2007) (entering Lone Pine order in products liability action brought by 82 cotton farmers against five herbicide manufacturers, finding “a preliminary showing on causation is necessary for efficient case management”).
  • Baker v. Chevron USA, Inc., 2007 U.S. Dist. LEXIS 6601 (S.D. Ohio Jan. 30, 2007) (dismissing plaintiffs who failed to comply with Lone Pine case management order).
  • In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743-44 (E.D. La.2008) (denying plaintiffs’ motion to stay Lone Pine order finding “it is not too much to ask a Plaintiff to provide some kind of evidence to support their claim that Vioxx caused them personal injury . . . Surely if Plaintiffs' counsel believe that such claims have merit, they must have some basis for that belief; after all this time it is reasonable to require Plaintiffs to come forward and show the basis for their beliefs and show some kind of basic evidence of specific causation.”); dismissal of plaintiffs for failure to comply with Lone Pine order affirmed by 388 Fed.Appx. 391, 2010 WL 2802352 (5th Cir. Jul. 16, 2010).
  • In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., MDL No. 1699, slip op., (N.D. Cal. Aug. 8, 2008) (Lone Pine order containing step-by-step enforcement enforcement procedures leading to dismissal for failure to comply).
  • Abbatiello v. Monsanto Co., 569 F. Supp. 2d 351 (S.D.N.Y.2008) (in toxic tort action involving multiple parties, court denied plaintiffs’ request to stay previously entered Lone Pine order finding reason for “requiring early individual causation expert evidence, is to protect defendants and the Court from the burdens associated with potentially non-meritorious mass tort claims”).
  • McManaway v. KBR, Inc., 265 F.R.D. 384 (S.D. Ind. 2009)(entering Lone Pine order requiring plaintiffs to serve case-specific expert reports on exposure, injury and causation, but due to the early stage of the litigation “failure to address the causation issue will not be grounds for immediate dismissal” but may warrant awarding defense costs and fees if summary judgment later granted on that basis).
  • In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 1871, 2010 WL 4720335 (E.D.Pa. Nov. 15, 2010) (entering Lone Pine order court noted it was concerned by unsupported Plaintiff Fact Sheets and the need to “objectively identify which of the many thousand plaintiffs have injuries which can credibly be attributed to Avandia usage.”  Further, the order “merely requires information which plaintiffs and their counsel should have possessed before filing their claims: proof of Avanida usage, proof of injury, information about the nature of the injury, and the relation in time of the injury to the Avandia usage.”).
  • Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833-34 (9th Cir. 2010) (upholding both entry of Lone Pine order as to exposure and causation and dismissal of plaintiffs whose proffered expert report failed to satisfy Daubert).
  • Strudley v. Antero Resources Corporation, No. 2011CV2218, slip op.  (Denver County, CO May 12, 2012) (court entered Lone Pine order requiring plaintiffs to produce admissible expert evidence to establish a prima facie showing of exposure and causation; then dismissed case because plaintiffs' expert could not establish causation).
  • In re Fosamax Products Liability Litigation, 2012 U.S. Dist. LEXIS 166734 (S.D.N.Y. Nov. 20, 2012) (entering Lone Pine order for particular alleged injuries to “target potentially spurious claims without imposing undue obligations upon other plaintiffs.”).

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