We were pleased to see that Judge Breyer has entered a so-called “Lone Pine” order in the Celebrex multidistrict litigation. Here’s a link to the order.
Lone Pine was a New Jersey state court case in which the judge ordered plaintiffs to offer proof connecting the defendant’s product to the plaintiff’s alleged injury. See Lore v. Lone Pine Corp., No. L-03306-85, 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986). 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.
Why does the entry of this order matter?
Because, in mass tort situations, plaintiffs’ counsel typically advertise widely in search of clients. Counsel often haven’t met with their clients, or discussed with them the validity of their claims, at the time the complaint is filed.
Unless a court does something to separate the wheat from the chaff, meritless claims — involving plaintiffs who never ingested the defendant’s drug, or who ingested it but the drug cured what ailed ’em — can remain pending for months or years. A court can weed out hundreds of meritless cases simply by entering an order that compels counsel to (1) meet with the client, (2) certify that the client ingested the defendant’s drug, and (3) confirm that plaintiff’s counsel believes in good faith that the action can proceed. And Judge Breyer’s order in the Celebrex litigation goes slightly further than that, requiring plaintiffs to retain an expert witness who will opine that Celebrex caused the plaintiff’s injury.
(The order also contains a step-by-step procedure for enforcement: Defendants first send plaintiff’s counsel a deficiency letter, then file a compliance motion with the special master, and then file a motion to dismiss with the trial court. Orders that lack detailed enforcement mechanisms often can’t readily be enforced, because judges give plaintiffs second, third, fourth, and fifth chances to meet missed deadlines. Defendants benefit from entry of an order that specifies a reasonable, but firm, procedure for causing cases actually to be dismissed.)
There’s one aspect of the Lone Pine order in the Celebrex cases that’s both slightly unusual and not obvious from the copy of the order that we received, which doesn’t include “Exhibit A.” According to a report from Pharmalot, the order applies only to cases filed by one plaintiff’s firm: Weitz & Luxenberg. We don’t know enough about what’s going on to comment on that peculiarity.
In any event, entry of the Lone Pine order is good news for the judicial system and good news for Pfizer. We predict that a fair number of Celebrex cases will be dismissed in the coming months as counsel are forced to think seriously about each of their client’s claims and realize that many of these cases ought to be abandoned.