We have written before about the virtues of Lone Pine orders, which require plaintiffs to produce elementary evidence supporting their claims, usually some prima face evidence of exposure, injury, and causation. These orders provide an excellent tool to eliminate the cases filed in any mass tort by people just hoping to cash in without having to prove anything.
A new Lone Pine order was entered last week in the Avandia litigation. In re Avandia Marketing, Sales Practices and Products Liability Litigation, Pretrial Order No. 121, 2010 WL 4720335 (E.D. Pa. Nov. 15, 2010). The order requires each plaintiff and claimant to serve a signed certification from a licensed physician that includes the following information: (1) a determination that the plaintiff used Avandia with a list of the records documenting the usages and the dates of usage; (2) either (a) a determination that the plaintiff suffered from one or more of specified injuries within one year of Avandia usage or (b) a determination that the plaintiff suffered one or more of the specified injuries more than one year after Avandia usage and that the usage caused the injury; (3) an identification of the injury or injuries allegedly caused by Avandia and the records documenting the injuries; and (4) copies of the records supporting (1) and (3).
A requirement to provide some prima facie evidence of usage, causation, and injury — fairly standard stuff, right? But what’s interesting here is the background for this order and one of the court’s justifications for the order. It has been widely reported that GSK has agreed to settle hundreds of Avandia cases (and we know only what we read in the papers, or blogs, about this – we aren’t in this litigation and know nothing about their settlement negotiations). The court’s explanation for the order cited its importance to settlement:
It is now clear to the Court additional support for Plaintiff’s claims is necessary for furtherance of settlement agreements, for the selection of cases for bellwether trials, and for the timely remand of cases to the sending courts for resolution.
Id. at 1. The last two grounds are typical, as courts use Lone Pine orders to weed out the weak cases, which should never be remanded back to their sending courts, and to develop more information that the parties can use to select bellwether cases.
But how do Lone Pine orders further settlement agreements? Isn’t a requirement for proof inconsistent with the idea of settling a case, some may ask? No, not at all. Most defendants have a real problem with paying significant amounts of money in settlements to people who did not take the defendant’s product and did not suffer injuries that arguably could be caused by the product. Before they settle claims, some defendants will insist on some prima facie proof comparable to that required by a typical Lone Pine order. Why? Well, if the plaintiff did not take the defendant’s product or suffer injuries that might have been caused by the product, then the plaintiff’s claim for money in a settlement is, what’s that word plaintiffs throw around like beads at Mardi Gras, a fraud. And defendants hate paying fraudulent claims. A good Lone Pine order will help weed out those claims that don’t deserve any settlement payment.
Predictably, plaintiffs’ counsel in the Avandia litigation resisted the Lone Pine order. We don’t think that’s because they are trying to hide fraudulent claims. They probably just didn’t want to do the work. But we’ll give the court last word, as its response to plaintiffs is the answer to any objection to a Lone Pine order: “The Order issued below merely requires information which plaintiffs and their counsel should have possessed before filing their claims . . . .”