lone pine orders in class action, mass tort and...

Lone Pine Orders in Class Action, Mass Tort and Products Liability Litigation

Bringing and Defending Pre Trial Motions Regardingpresents Bringing and Defending Pre-Trial Motions Regarding Exposure, Causation and Damages

presents

A Live 90-Minute Teleconference/Webinar with Interactive Q&AToday's panel features:

Eric Anielak, Partner, Shook Hardy & Bacon, Kansas City, Mo.Jay M. Jalenak, Partner, Kean Miller, Baton Rouge, La.

John Randall Whaley, Partner, Neblett Beard & Arsenault, Alexandria, La.

Thursday, February 18, 2010

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Lone Pine Orders in Class Action, Mass Tort and Products Liability y

LitigationAn Overview of Lone Pine Orders

Eric AnielakSh k H d & B L L PShook, Hardy & Bacon, L.L.P.

February 18, 2010

Outline of Presentation

What Are Lone Pine Orders? Purpose of Lone Pine Orders Courts’ Authority Elements of the Typical Lone Pine Order Factors That Prompt Their Use Use of Lone Pine Orders by the Courts Cases Suited for Lone Pine Orders

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What Are Lone Pine Orders?

Lore v. Lone Pine Corp.,1986 WL 637507, No. L-33606-85 (N.J. Super. Ct. Law Div. Nov. 18, 1986)

– Multiple plaintiffs sued 464 defendants, alleging water from Lone Pine Landfill caused personal injuries and declining property values.

Case management order required plaintiffs to present basic Case management order required plaintiffs to present basic facts supporting their claims, including:

– for personal injury claims, expert reports supporting each plaintiff’s claim of injury and causation, and

– for property damage claims, expert reports supporting claims, including timing and degree of damage as well as causation

When plaintiffs failed to comply with the court’s order, the court dismissed with prejudicedismissed with prejudice.

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What Are Lone Pine Orders?

Case management tool

Requires plaintiffs to define their claims and to demonstrate expert evidence supporting those claims early in the litigationthose claims early in the litigation.

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Purpose of Lone Pine Orders

Designed to help courts define the issues, narrow the scope of discovery, and gain

t l l liti ti t lcontrol over complex litigation at an early stage.

Separating the “wheat” from the “chaff”

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El t f th T i l L PiElements of the Typical Lone PineOrder

Lone Pine orders require plaintiffs to provide expert evidence to the court or defendants supportingevidence to the court or defendants supporting essential elements of their claims:

– specific causationproduct identification

– date of exposuremethod of exposure– product identification

– product exposure– method of exposure– injury, disease, or damage

The orders include a deadline by which plaintiff must y psubmit the required expert evidence.

Finally, the orders usually include a penalty for non-compliance such as dismissal of the actioncompliance, such as dismissal of the action.

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El t f th T i l L PiElements of the Typical Lone PineOrder (cont.)

Causation can be the most onerous burden in a toxic tort case.

Lone Pine orders often require plaintiffs to submit affidavits from medical or other experts on the issue of causation.

Some courts require these experts’ testimony to meet So e cou ts equ e t ese e pe ts test o y to eetDaubert or Frye standards of admissibility.

Other courts require only a minimal showing of some kind of scientific basis for their claims. See In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 744 (E.D. La. 2008) (plaintiff need only make minimal showing consistent with Rule 26).

– Fed. R. Civ. P. 26 reports – Other affidavits or reports

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A h i f L Pi O dAuthority for Lone Pine Orders:Statutes and Rules of Procedure

Trial courts cite procedural rules and statutes giving them broad discretion to manage caseloads andthem broad discretion to manage caseloads and discovery as authority for entering Lone Pine orders.– Fed. R. Civ. P. 16(c) (court may adopt special ( ) ( y p p

procedures to eliminate frivolous claims and manage complex cases)Fed R Civ P 26 (authority to manage and limit– Fed. R. Civ. P. 26 (authority to manage and limit discovery)

– Fed. R. Civ. P. 11 (attorneys must have ( yevidentiary support for allegations) Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000)8

A th it f L Pi O dAuthority for Lone Pine Orders:State Statutes and Rules

Many states have procedural rules or t t t l t th F d l R lstatutes analogous to the Federal Rules,

including 11, 16, and 26. St t l t t t id t i l t b d State rules statutes provide trial courts broad authority to manage complex cases:

California: Cal Standards Jud Admin § 19(h)– California: Cal. Standards Jud. Admin. § 19(h)– New York: N.Y. C.P.L.R. §§ 602, 3103.

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A th it f L Pi O dAuthority for Lone Pine Orders:Courts’ Inherent Authority

Both federal and state court decisions have cited trial courts’ inherent power to manage their dockets as authority for issuing Lone Pine ordersPine orders.

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Factors That Prompt Use of Lone Pine Orders

“In crafting a Lone Pine order, a court should strive to strike a balance between efficiency and equity. Lone Pine orders may not be appropriate in every y pp p ycase, and even when appropriate, they may not be suitable at every stage of the litigation.” In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 744 (E.D. g , pp , (La. 2008).

Courts consider a number of factors in determining whether to issue Lone Pine orderswhether to issue Lone Pine orders.

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F t Th t P t U f L PiFactors That Prompt Use of Lone Pine Orders

Courts consider:– The number of parties involved– Number of claims / causes of action involved – The stage of the litigation

See In re Vioxx, 557 F. Supp. 2d at 744.

– Insufficient pleading See, e.g., Atwood v. Warner Elec. Brake & Clutch Co., 605 N.E.2d 1032, 1037 (Ill.

Ct. App. 1992)

– Circumstances indicating plaintiffs’ claims lack merit– Availability of other procedures

See, e.g., In re Digitek Prod. Liab. Litig., MDL No. 1968, 2010 WL 86170 (S.D. W.Va. Jan 8 2010)Jan. 8, 2010).

– Particular needs of the case12

Use of Lone Pine Orders

California, Illinois, Montana, New Jersey, New York, Texas, and Wisconsin have approved Lone Pine orders in reported d i idecisions.

– In Texas, appellate courts have granted writs of mandamus when trial courts refused defendants’ requests for Lone Pine orders. See In re Mohawk Rubber Co., 982 S.W.2d 494, 499 (Tex. Ct. App. 1998); In re Zenith Elecs Corp of Texas No 13 04 00420 CV1998); In re Zenith Elecs. Corp of Texas, No. 13-04-00420-CV 2004 WL 2367236 (Tex. Ct. App. Oct. 21, 2004).

Countless courts in other jurisdictions have undoubtedly issued Lone Pine orders in unreported cases.

The orders have frequently been used by federal district courts.– Many cite to Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir.

2000), wherein the Fifth Circuit endorsed the use of Lone Pineorders.

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Examples

In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741 (E.D. La 2008)La. 2008)

In re Digitek Prod. Liab. Litig., MDL No. 1968, 2010 WL 86170 (S.D. W.Va. Jan. 8, 2010)

Ramirez v E I du Pont de Nemours & Co No 8:09-CV- Ramirez v. E.I. du Pont de Nemours & Co., No. 8:09-CV-321-R-33TBM, 2010 WL 144866 (M.D. Fla. Jan. 8, 2010)

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Cases Suited for Lone Pine Orders

Lone Pine orders may be useful for any litigation that:

– involve multiple plaintiffs– involves multiple theories of recovery; – involves novel theories of injury or causation; or– requires expert scientific/medical testimony.

These orders are often appropriate for:– Mass Torts– Environmental and Toxic Torts– Chemical Exposure Cases– Complex Products Liability Cases

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Jay M. Jalenak, Jr.KeanMillerOne American Place301 Main Street, Suite 1800Baton Rouge, LA 70801Tel.: 225.382.3438Cell: 225 907 3263Cell: 225.907.3263Direct Fax: 225.215.4038

web site: www.keanmiller.com

Defense perspective

Lone Pine orders require plaintiffs early in the litigation to:

p p

(1) Specifically define their alleged injuries and/or damages; and

(2) Demonstrate at the early stages a prima facia level of(2) Demonstrate at the early stages a prima facia level of evidentiary support for key components of their claims, usually causation of damages.

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Defense perspective

Lone Pine orders are designed to assist in the management of

p p

g gcomplex issues and potential burdens on defendants and the court in mass tort litigation, essentially requiring plaintiffs to produce a measure of evidence to support their claims at the outset.

Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 604 n. 2 (5th Cir.2006); Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir.2000)

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Defense perspectivep pTraditional Rationale:

Lone Pine orders ensure that unsupported claims will notLone Pine orders ensure that unsupported claims will not consume the resources of the parties or the judiciary.

M B dl S kiMore Broadly Speaking:

Lone Pine orders are an effective case management tool to assist the courts in defining issues, narrowing the scope of discovery, and g , g p y,otherwise getting control of complex litigation at the earliest possible stage of the litigation.

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Whatever perceived burdens Lone Pine orders place on the plaintiffsWhatever perceived burdens Lone Pine orders place on the plaintiffs must be weighed against the burdens protracted litigation will impose on the court system and the defendant.

Lone Pine orders do not, as plaintiffs often argue, unfairly require the plaintiffs to prove their case before proceeding with the lawsuit. They merely require plaintiffs to define their claims clearly and to demonstratemerely require plaintiffs to define their claims clearly and to demonstrate that there is some competent evidentiary support to justify proceeding with time consuming, burdensome, and complex litigation.

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Lone Pine orders enforce the plaintiff’s burden in civil litigation.

Plaintiff's burden of proof:Plaintiff s burden of proof:

1. Fault2. Causation3. Damages

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Lone Pine orders simply require production of that which plaintiffs oughtLone Pine orders simply require production of that which plaintiffs ought to have obtained before filing suit points to a problem that is all too common in complex litigation – a vague petition followed by onerous discovery requests and time consuming litigation as the plaintiffs attempt to use “discovery” to do that which should have been done beforesuit was filed.

The “reasonable inquiry” requirement of Rule 11 is not simply window dressing – it is a real obligation, and the Lone Pine order can be used to enforce it.

“The [order] essentially required that information which plaintiffs should have had before filing their claims pursuant to Fed. R.Civ.P. 11(b)(3).”

-Acuna et al v Brown & Root et al 200 F 3d 335 (5th CirAcuna et al. v. Brown & Root, et al., 200 F.3d 335 (5th Cir., 2000).

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In re Vioxx Products Liability Litigation, 557 F.Supp.2d 741,744 (E.D. La. 2008), the Court stated that it was “not requiring that Plaintiffs provide expert reports sufficient to survive a Daubert challenge or even provide

d t h ill t tif t t i l R th th C t i i i Pl i tiffand expert who will testify at trial. Rather the Court is requiring Plaintiffs to make a minimal showing consistent with Rule 26 that there is some kind of scientific basis that Vioxx could cause the alleged injury.”

The court ultimately dismissed the claims for failure to comply with the Lone Pine order. In re Vioxx Products Liability Litigation, 2009 WL 1158887 (E D La April 28 2009)1158887 (E.D. La., April 28, 2009).

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Lone Pine orders are perfectly consistent with the principles espoused in the Federal Judicial Center’s Manual for Complexespoused in the Federal Judicial Center s Manual for Complex Litigation.

The Manual recognizes and encourages courts to use “... the numerous grants of authority that supplement the court’s inherent power to manage g y pp p glitigation.” (Manual for Complex Litigation, Fourth, §10.1.)

One of these specific grants of authority is Federal Rule Civ. Proc. 16(c)(12) which encourages courts to adopt “special procedures” to16(c)(12), which encourages courts to adopt special procedures to manage appropriate cases. It provides:

(c) Subjects for Consideration at Pretrial Conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to

* * *(12) the need for adopting special procedures for managing potentiallydifficult or protracted actions that may involve complex issues, multipleparties, difficult legal questions, or unusual proof problems....

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The Manual recognizes that effective judicial management is “active” and “substantive.” (Id., at § 10.13.) ( § )

The management should be “active” in the sense that the judge willanticipate crucial issues before they arise “... rather than await passively for counsel to present them ” (Id )for counsel to present them. (Id.)

It should be “substantive” by allowing the court to become familiar with the key substantive issues at an early stage so that the court can make informed rulings on issue definition and narrowing. (Id.)

To accomplish this, the court should seek specific information and require the attorneys at the earliest possible stage to “ describe therequire the attorneys, at the earliest possible stage, to ... describe the material facts they intend to prove and how they intend to prove them.”

(Id., at § 11.33.)

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The Manual recognizes that the best time to adopt “special procedures” to manage potentially difficult or protracted litigation is during the very g p y p g g yearly stages. “Judicial supervision is most needed and productive early in the litigation.” (Id., at §10.1.)

One of the key components of effective litigation management is a planOne of the key components of effective litigation management is a plan that requires the early identification of the key material facts and legal issues that will dictate the direction of the litigation.

As recognized by the Manual, “[t]he sine qua non of managing complex litigation is defining the issues in the litigation. The materiality of facts and the scope of discovery (and the trial) cannot be determined without identification and definition of the controverted issues ” (Id at §11 31 )identification and definition of the controverted issues.... (Id., at §11.31.)

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Lone Pine orders can facilitate resolutionLone Pine orders can facilitate resolution.

An effective response to a Lone Pine order communicates to the defendant and to the court that the plaintiffs have “done their homework” and are prepared to present an effective case. This can foster early and meaningful alternative resolution methods that might not otherwise be undertaken until long after the parties have spent considerable time andundertaken until long after the parties have spent considerable time and money.

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Abbatiello v Monsanto Co 569 F Supp 351 (S D NY 2008)Abbatiello v. Monsanto Co., 569 F. Supp. 351 (S.D. NY, 2008)

Multiple defendants were sued for damages caused by their manufacturer of PCB’s. A modified Lone Pine order was put in place, p pwhich required defendants to submit to limited written discovery before plaintiffs would be required to submit expert affidavits establishing a prima facie case of causation of damages.

Plaintiffs, after seeking several extensions for their affidavits, moved to modify the CMO to initiate discovery as to only one of several affirmative defenses of defendants.

The Court rejected the proposed modification. Until plaintiffs established the prima facie case of causation, there was no reason to initiate this costly discovery and no reason to limit discovery to one issue whichcostly discovery and no reason to limit discovery to one issue which would not be dispositive.

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McManaway v KBR Inc F R D 2009 WL 4061581 (S DMcManaway v. KBR, Inc., ___ F.R.D. ___, 2009 WL 4061581 (S.D. Ind, Nov. 20, 2009)

National guardsmen and private citizens alleged to have been exposed to sodium dichromate while working to restore a water plant in Iraq.

Defendants sought a Lone Pine order to require expert proof of injuries and general and specific causation The Court was skeptical of suchand general and specific causation. The Court was skeptical of such orders and their use in place of the procedural safeguards of summary judgment.

N th l th C t d b t b itt d b U SNevertheless, the Court was swayed by a report submitted by a U.S. Army Center for Health Promotion and Preventive Medicine report which evaluated 137 of the 161 potentially exposed guardsmen and found no significant levels of toxin in their blood.g

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McManaway v KBR Inc F R D 2009 WL 4061581 (S DMcManaway v. KBR, Inc., ___ F.R.D. ___, 2009 WL 4061581 (S.D. Ind, Nov. 20, 2009)

The court issued a Lone Pine order requiring expert disclosures on 1) evidence/medical findings of each plaintiff on detectable amounts of sodium dichromate being found in blood or tissue; or in the absence , shall address how a judge or jury can conclude that any medical conditions sustained by a plaintiff can be said to have been caused byconditions sustained by a plaintiff can be said to have been caused by the exposure.

The court did not order that the failure to provide such evidence would lt i i di t di i l I t d th t d d th t hresult in immediate dismissal. Instead, the court ordered that such a

failure, combined with a successful motion for summary judgment, would be considered as to whether plaintiffs should bear the costs and fees incurred by defendants in seeking a summary judgment. y g y j g

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Burns v Universal Crop Protection Alliance 2007 WL 2811533 (E DBurns v. Universal Crop Protection Alliance, 2007 WL 2811533 (E.D. Ark., Sept. 25, 2007)

82 cotton farmers filed suit against 5 herbicide manufacturers under theories of strict liability, negligence, breach of implied warranty, and violation of the Arkansas Deceptive Trade Practices Act, for alleged cotton crop suffered damage from exposure to Defendants' herbicides.

D f d t ht L Pi d i i h l i tiff t id tifDefendants sought a Lone Pine order requiring each plaintiff to identify the amount of each defendants’ product claimed to be transported to their crops, the individual harm claimed, and the facts relied upon by experts.e pe ts

The proposed modified order permitted a period of discovery of plaintiff’s affiants as well an opportunity for motions challenging the sufficiency of plaintiff’s proof of product identification and exposure.p p p p

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Burns v Universal Crop Protection Alliance 2007 WL 2811533 (E DBurns v. Universal Crop Protection Alliance, 2007 WL 2811533 (E.D. Ark., Sept. 25, 2007)

The Court agreed and issued the order: “Arkansas law requires a plaintiff asserting any theory of product liability to show a causal link between the alleged product defect and alleged injuries. Additionally, where several defendants' products may have produced injury, a plaintiff must introduce sufficient evidence that exposure to a particularmust introduce sufficient evidence that exposure to a particular defendant's product was a substantial factor in producing the injury.”

Arkansas, like many other jurisdictions, has not adopted a “market share” approach to causation.s a e app oac to causat o

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Alternative to Lone Pine ordersAlternative to Lone Pine orders.

Limited discovery before entry of the Lone Pine order.

Initial discovery limited to causation, followed by an option for summary judgmentjudgment.

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Jay Jalenak is a partner in the Baton Rouge office ofJay Jalenak is a partner in the Baton Rouge office of Kean Miller. He joined the firm in 1990 and practices in the litigation group.

Jay represents clients in toxic tort litigation, commercial and business litigation and personal injury defense.

Jay has particular experience in the defense of area industrial facilities class action warranty asbestosindustrial facilities, class action, warranty, asbestos, welding rod, toxic tort, premises, products liability and hearing loss claims, and regularly represents major businesses.

fJay is a Past President of the Baton Rouge Bar Association.

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Lone Pine Orders in Class Action, Mass Tort and Products Liability LitigationTort and Products Liability Litigation

Thursday, February 18, 2010

J R WhaleyJ.R. Whaley

[email protected] 1-800-256-1050

Lone Pine Orders: The Plaintiffs’ P tiPerspective

J.R. [email protected]

1-800-256-1050

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Plaintiff’s Perspectivep

• A Lone Pine order is a tool for the defenseA Lone Pine order is a tool for the defense.

• Expect to see them in mass tort cases, environmental class actionsenvironmental class actions.

• Expect to see them in cases with unique li bili d i l iliability and causation claims.

• How should plaintiff counsel deal with a request for a Lone Pine order?


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How To Defeat Lone Pine Requestq

• Show how your defendant doesn’t want toShow how your defendant doesn t want to follow the rules.

• Show history of Lone Pine orders.Show history of Lone Pine orders.• Show how Lone Pine orders have been used in only limited situations.only limited situations.

• Distinguish those situations from yours.• Don’t expose yourself to a Lone Pine request• Don t expose yourself to a Lone Pine request in the first place.


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Federal Rules

• No guidance in the Federal Rules for a “LoneNo guidance in the Federal Rules for a Lone Pine” order.

• What the Federal Rules do establish areWhat the Federal Rules do establish are mechanisms for gathering and testing evidence at appropriate stages through motions to dismiss, discovery, motions for summary judgment or Daubert.

• “How about we just follow the rules?”


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Established Procedures Provide All The Protection Defendants Require To Defend Against Alleged

Frivolous Claims.

• Rule 11Rule 11

• Rule 12(b)(6)

l 26( ) i O d• Rule 26(c) Protective Order

• Rule 56 Motion for Summary Judgment


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Frivolous Claims.• Rule 12(b)(6):

– A complaint that merely states a legal theory and vaguely states the elements of a claim does not sufficiently state a plausible claim for relief. (Twombly)“[T]h t t th t t t t t ll f th– “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” (Iqbal)

– To survive a motion to dismiss the complaint must present aTo survive a motion to dismiss, the complaint must present a story “plausible” enough to convince a judge that the plaintiff actually stands a reasonable chance of proving the claims asserted in the complaint. (Iqbal)

– “Rule 8… does not unlock the doors to discovery for a plaintiff armed with nothing more than conclusions.” (Iqbal)


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Frivolous Claims.

• Rule 56:u e 56:– “Summary judgment is useful device for unmasking frivolous claims and putting swift end to meritless liti ti ” Q i S M d l N i hb h dlitigation.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2nd Cir. 1980).

– “The purpose of a motion for summary judgment is p p y j gnot to preserve legal arguments for appeal, but to eliminate useless trials on undisputedissues ” Flynn v Sandahl 58 F 3d 283issues. Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995).


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Frivolous Claims

• Rule 56:Rule 56:– In particular, the “[s]ummary judgment procedure is properly regarded not as a disfavoredis properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every

i ’" C l C 477 U Saction.’" Celotex v. Catrett, 477 U.S. 317, 328, quoting Fed. Rule Civ. Proc. 1.


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How Lone Pine Orders Started

• Lore v. Lone Pine Corp. is a New Jersey state district court case.• It involved numerous plaintiffs who were suing 464 defendants for

personal injury and property damage associated with a landfill.• It was unclear from the pleadings which defendants the plaintiffs

were claiming were responsible for which injurieswere claiming were responsible for which injuries.• Additionally, some of the plaintiffs were claiming damage

to their properties despite being up to 20 miles away eventhough the Environmental Protection Agency had issuedthough the Environmental Protection Agency had issued reports finding that any contamination from the landfillwas confined to the landfill itself and its immediate vicinity.Th f d i i h i l• The court found it necessary to issue the special case management order. See Lore v. Lone Pine Corp. 1986 N.J. Super. LEXIS 1626, *1‐2. (N.J. Super. Ct. 1986).


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Lone Pine Orders In Other Contexts


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• Morgan v Ford Motor Co 2007 U S DistMorgan v. Ford Motor Co., 2007 U.S. Dist. LEXIS 36515 (D. N.J., May 17, 2007).

• InMorgan the plaintiffs alleged personal• In Morgan, the plaintiffs alleged personal injury and property damage resulting from defendants’ dumping of hazardous materialsdefendants dumping of hazardous materials at a landfill.


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• The defendants sought an order requiringThe defendants sought an order requiring each plaintiff to specify his or her alleged injuries and produce basic facts substantiatinginjuries and produce basic facts substantiating the causes of such injuries through various affidavits before any other discovery hadaffidavits before any other discovery had occurred.


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• In ruling against the issuing of a Lone PineIn ruling against the issuing of a Lone Pineorder in Morgan, the Court held that “the parties must be given an opportunity toparties must be given an opportunity to conduct discovery and contest the reasonableness of their adversary’s experts ”reasonableness of their adversary s experts.


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• Defendants are not entitled to file whatDefendants are not entitled to file what amounts to a summary judgment motion without first allowing the party opposing thewithout first allowing the party opposing the motion a chance to conduct discovery. Morgan at *37 citing Hines v Consol RailMorgan, at 37 citing Hines v. Consol. Rail Corp., 926 F.2d 262 (3d Cir. 1991).


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• The use of a Lone Pine order is the exceptionThe use of a Lone Pine order is the exception and not the rule. See In re Vioxx Prods. Liab. Litig 557 F Supp 2d 741 744 (E D La MayLitig., 557 F. Supp. 2d 741, 744 (E.D. La. May 30, 2008).


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• When deciding whether to issue a Lone PineWhen deciding whether to issue a Lone Pineorder, it is important that the court “strike a balance between efficiency and equity” In rebalance between efficiency and equity. In re Vioxx Prods. Liab. Litig., at 744.

• “Lone Pine orders may not be appropriate in• Lone Pine orders may not be appropriate in every case and, even when appropriate, they may not be suitable at every stage of themay not be suitable at every stage of the litigation.” Id.


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• In Vioxx the court found that a Lone PineIn Vioxx, the court found that a Lone Pineorder was proper but it also noted the unusualcircumstances warranting the court’scircumstances warranting the court s decision.

• The case had already been in the state courts• The case had already been in the state courts for over seven years and the MDL for over threethree.


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• An enormous amount of discovery had taken e o ous a ou t o d sco e y ad ta eplace.

• The defendants had produced over 22 million ppages of documents and hundreds of depositions had been conducted.

• Six bellwether trials and 14 others had taken place, and thousands of pre‐trial motions had been decidedbeen decided.

• The case was no longer in its “embryonic stage.”


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• “[A]t this advanced stage of the litigation, it is not [ ]t t s ad a ced stage o t e t gat o , t s ottoo much to ask a Plaintiff to provide some kind of evidence to support their claim . . . “

• “[I]n the present case, a Lone Pine order may not have been appropriate at an earlier stage before

di h d t k l i littlany discovery had taken place since little was known about the structure, nature and effect of Vioxx by anyone other than perhaps theVioxx by anyone other than perhaps the manufacturer of the drug.”


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• Lone Pine orders are generally used in massLone Pine orders are generally used in mass tort or class action litigations, not those involving two parties and one injuryinvolving two parties and one injury.

• “Lone Pine orders are designed to handle the complex issues and potential burdens oncomplex issues and potential burdens on defendants and courts in mass tort litigation ” Acuna v Brown and Root Inc 200litigation. Acuna v. Brown and Root Inc., 200 F.3d 335, 340 (5th Cir. 2000).


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• Acunawas a mass, toxic tort case.• Approximately 1,600 plaintiffs were suing over 100 defendants for a

range of injuries, as well as durations, intensities and types of exposure to toxic substances occurring over a span of up to forty yearsyears.

• Neither the defendants nor the court were on notice from the plaintiffs’ pleadings as to which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries.

• As a result, the court issued a Lone Pine order requiring the plaintiffs to produce expert affidavits with basic evidence such as the injuries suffered by the plaintiff the material or substancesthe injuries suffered by the plaintiff, the material or substances causing the injury, the facility thought to be its source and the dates or circumstances and means of exposure.


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What Is The Big Picture?g


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Is It Right For Your Case?g

• “The issue is not whether a court can require [the q [plaintiffs] to make a prima facie showing; the issue is whether a court should.” McConnell, at *4 (emphasis in the original)(emphasis in the original).

• While Federal courts may be vested with authority to use additional tools, in extraordinary circumstances, to assist it in handling inordinately complex issues that impose special burdens on the parties the question is whether the factsthe parties, the question is whether the facts even remotely present such circumstances.


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• “The basic purpose of a Lone Pine order is to identify and cull t ti ll itl l i d t li liti ti i lpotentially meritless claims and streamline litigation in complex

cases involving numerous claimants [and defendants]” Baker v. Chevron USA, Inc., 2007 WL 315346, *1 (S.D. Ohio Jan. 30, 2007) and In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d at 744.g , pp

• In order to justify such a departure from the ordinary course of procedure, the defendant must establish that the case presents special circumstances such as multiple defendants or l i tiff ti t ti ll b d di iplaintiffs presenting potentially burdensome discovery issues;

multiple injuries and possible causes; well‐grounded suspicion of meritless claims; or unusual proof problems.


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• In the relatively few cases where Lone Pine orders have been used, these special circumstances were always presentspecial circumstances were always present.

• See Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 500 (9th Cir. 1994) where the court noted that a Lone Pine order was issued “out of concern that plaintiffs might not be able to demonstrate a causal connection b h k l h l d h ”between their workplace chemical exposure and their injuries”.

• In re: Silica Prods. Liab. Litig., 398 F.Supp. 2d 563 (S.D. Tex. June 30, 2005) where the court used a Lone Pine order to sift through and dismiss unscreened claims where 10,000 plaintiffs filed over 100 state and federal , psuits.

• McConnell v. Pacificorp Inc., 2008 U.S. Dist. LEXIS 53949, *11 (N.D. Ca., June 12, 2008) where the court refused to issue a Lone Pine order after surveying prior case law where Lone Pine orders had been issued in thesurveying prior case law where Lone Pine orders had been issued in the past and noting that none of those “unusual proof problems” were present in the current matter.


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Before Suit Is Filed, Consider Whether You Are Exposed To A Lone Pine RequestAre Exposed To A Lone Pine Request

• Multiple defendants?Multiple defendants?

• Multiple plaintiffs?

l l di ?• Unclear pleadings?

• Unique damages claimed?

• Unique causation claimed?


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What Can You Do Before Suit Is Filed To P F A L Pi O d ?Prepare For A Lone Pine Order?

• “Bad facts (and bad pleadings) make bad law”Bad facts (and bad pleadings) make bad law.

• Be prepared.E t– Experts

– Is less more?

• Alternate Discovery Methods.– Plaintiff Fact Sheets

– Bellwether Trial


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Questions?


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lone pine orders in class action, mass tort and...

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